U.S. Department of Labor
Office of Administrative Law Judges
Suite 201
55 West Queens Way
Hampton, Virginia 23669
804-722-0571
DATE ISSUED: September 17, 1986
CASE NO.: 86-ERA-26
In the matter of
MARVIN LLOYD VAN BECK
Complainant
v.
DANIEL CONSTRUCTION COMPANY
Respondent
Michael Okun, Esq.
For the Complainant
Melvin Hutson, Esq.
For the Respondent
BEFORE: JOHN C. BRADLEY
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This proceeding involves a claim seeking redress in accordance with the
provisions of Title 42 U.S.C. § 5851 which prohibit a Nuclear Regulatory
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Commission [NRC] licensee from discharging or otherwise discriminating against
an employee who has engaged in an activity protected under the statute.
Formal hearings were held in Raleigh, NC, on 5/28 - 29/86, at which
time
both parties were afforded full opportunity to present evidence and argument.
Briefs were filed by both parties under date of 7/31/86, and, pursuant to a
request for further guidance on the issue of jurisdiction, supplemental
briefs were received on 9/8/86.
The findings and conclusions which follow are based upon a complete
review of the entire record in light of the arguments of the parties,
applicable statutory provisions, regulations and pertinent precedent.1
(1) CP&L is an applicant for an operating license to be issued by the
NRC.
(2) The operating license is being sought for the Shearon Harris plant at
which Daniels is the primary contractor.
B. Complainant's Background
(3) Complainant served in the U.S. Marine Corps from April 1966 until
October 1970, having been rated as an "Aviation Ordnanceman/Missile
Technician" (CX 2-3; TR 24, 25).
(4) While in the U.S. Marine Corps, Complainant received a high
school
equivalency degree (CX 2-1; TR 24), and thereafter enrolled in junior college
for 1 term and in a technical college drafting course for 1 year (TR 24).
(5) Complainant served in the Army Reserve for 4 years, having
received
a rating as Senior Parachute Rigger and having jumped about 20 times (TR 25).
(6) Complainant has worked as a draftsman for 6 months, as a carpenter
for 5 years, and as an electrical quality control inspector in power plants
under construction, including (a) the Manatee fossil fuel plant, Bradenton,
EL, 5/76-7/77; (b) the Hartsville nuclear plant, Hartsville, TN, 2/78-5/82;
(c) the River Bend nuclear plant, St. Francesville, TN, 5/82-12/82; and (d)
the South Texas nuclear project, Bay City, TX, 2/83-4/85 (CX 2; TR 26, 27,
117). During such employment complainant never refused an assignment (TR 30).
(7) Complainant has children, ages 4 and 6, and has functioned as a
ordained elder, a missionary and a Sunday school teacher, for the Mormon
Church (TR 26).
(8) On or about 4/22/85, Complainant accepted employment with
Daniels as an ERI at Shearon Harris at a base pay of $600.00 per week, but with actual
earnings, including overtime pay for an average of 18 hours per week,
exceeding ,000 per week (CX 3; TR 23, 31; EX 7, 8).
(9) At the time of hearing Complainant was employed building the
Towne
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House Apartments in Cary, NC, the pay being $8.00 per hour (TR 23, 366).
C. Description of Shearon Harris Facility
(10) Construction of the Shearon Harris Plant began in 1972 (TR 379),
the target date for completion at the time of hearing having been 11/1/86 (TR
380).
(11) Among components of the Shearon Harris Plant in which electrical
conduits were installed are, (a) the RCB, (b) the reactor auxiliary building
[RAB], (c) the turbine building, (d) the fuel handling building, (e) the
diesel generator building, (f) the water buildings, and (g) the general
services buildings (TR 44).
(12) The RCB extends about 200 feet above the ground, 60 ft. below
the
ground, and approximates 180 feet in diameter, with exterior containment and
interior secondary shield walls about 25 feet apart (TR 46, 47). There is an
exit at elevation 235 (above sea-level), another at elevation 286 (TR 48),
plus an emergency personnel hatch at level 261 which witness Girton said he
did not know how to operate (TR 171).
(13) In the RCB, there are 6 levels at which ERIs work, and 2 sets of
stairways joining them (TR 47-48).
(14) As demonstrated by a series of photographs (CX 8 through 24),
electrical conduits are intermingled in a very congested way with hot water
pipes, some of which had not yet been insulated, between the exterior and
interior walls and within the interior wall (CX 9; TR 49, 50, 61, 174).
D. Nature of Electrical Raceway Inspections
(15) An electrical raceway is a steel conduit used to contain and route
electric cables and associated supports and hardware (TR 34, 35).
(16) In order to be certified by CP&L as an ERI, it was necessary for
Complainant, to pass a written test and satisfy rather stringent requirements
(CX 4, 5, 6, 7).
(17) The inspection process, detailed at some length by Complainant
(TR
38-45), included working at 6 different levels in the RCB (TR 45), and
required climbing over, on and around pipes, conduit and any remaining
scaffolding (TR 50, 60, 62, 71, 218).
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(18) One of about 21 ERIs, Complainant handled from 4 to 20
inspections per week (TR 90).
E. Testing Activities at Shearon Harris
(19) As safety measures prior to completion of the plant, pipes at
Shearon Harris were subjected to a variety of tests, including ultra sonic,
liquid penetrate, x-rays of welds, hydrostatic (cold hydro), HFT (TR 290),
and finally, 2 weeks after the HFT (TR 407), LRT when air pressure was
pumped to 55 psi in the RCB to assure that the structure could withstand an
internal pressure buildup, and ILRT when pressure was allowed to subside to
35 psi, then being maintained to see if it would leak out (TR 433)
(20) The cold hydro test, which is a pressure test of the piping in
primary reactor system (TR 278), occurred on 6/20/85 and involved
pressurizing the primary coolant system to 3107 lbs. psi with water at
between 150 Dgrs. and 180 Dgrs. Fahrenheit (TR 292), the piping having been
designed for an operating pressure of about 2600 lbs. psi (TR 293).
(21) Leakage was noted during the cold hydro testing and corrective
action taken (CX 27).
(22) In fact, witness Forbis saw leaks during cold hydro, and, while
performing an inspection at the 286 level, a 2 1/2 foot of pipe whip in such
a way as to shake the building (TR, 230, 231, 246, 247).
(23) The NRC on 7/11/85 acknowledged to CP&L the successful
completion
of cold hydro testing (EX 4).
(24) HFT is a term applied to a series of some 30 tests (TR 296), using
large recirculating pumps to heat the plant to an operating temperature of
557 Dgrs. and to a pressure of 2250 lbs. psi, the function being to test
systems in their interrelated relationship in a manner similar to the way
they operate with nuclear fuel (TR 141, 277, 278, 293; EX 6), and to measure
the thermal growth as heated metal expands, causing components to move (TR
295).
(25) While HFT was originally scheduled to occur over a 28 day
period,
it actually took about 6 weeks (TR 281, 282), beginning 12/28/85 and ending
2/15/86 (CX 29; TR 432), and operating temperature was reached on 1/12/86
(TR 295), or 1/13/86 (EX 6).
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(26) Because it was said that temperatures and pressures could
"be potentially dangerous to personnel" (CX 25), beginning on 12/27/85, Witness
Hinnant caused the entire RCB to be Placed off-limits, and measures were
taken to limit access, including use of barricades, warning signs, special
passes and security guards (CX 25; TR 85, 165, 200, 230, 257, 279, 280).
(27) Parts of the RAB were also sealed off (TR 298), and on 1/2/86
Witness Hinnant extended the access control area to include elevation 286 in
the RAB because maintenance personnel working in the area had caused a loss
of power (CX 26).
(28) No nuclear fuel was on the site during HFT (TR 290).
(29) The RCB was sealed off for two reasons: (a) Hinnant did not want
workers interfering with testing in some way (TR 298), although he was not
concerned with ERIs because they do not work with tools (TR 299); and (b)
because of high temperatures, he did not want people working there until he
was sure there would be no problems (TR 298).
(30) The materials used for piping and welds were designed to range up
to 650 Dgrs. F and 2600 psi, are actually stronger at 557 Dgrs. than at 150
Dgrs. (TR 293, 417).
(31) Safety checks were performed prior to and during HFT (TR 368).
(32) Witness Somers was not concerned with pipe ruptures during HFT
because, (a) all pipes had been visually inspected, (b) all received
non-destructive examinations, (c) pipe had been radiographed for volume
metric flaws, and (d) all pipe had been hydro tested at much higher pressures
(TR 416).
(34) Leaks appearing during HFT were said to be minor, some actually
having been fixed afterwards (TR 302).
(35) Once heat and pressure had been stabilized and checks had been
made
for leaks, management deemed that the risks earlier perceived had been
reduced to an acceptable level, thus allowing people to come in and perform
work (TR 309, 311).
(36) Use of ERIs in the RCB during HFT was discussed among
management
personnel during the first or second week in December, 1985 (TR 414),
however, at the time Hinnant would not give blanket permission for ERIs to
enter the area (TR 415).
(37) Nevertheless, it was management's intention all along that electric
raceway inspections be conducted during HFT (TR 406).
(38) Management concedes that a pipe rupture, a pin hole leak, or a
valve or gasket failure during HFT could be dangerous (TR 305), that an
employee could be hurt if a leak suddenly developed where he was (TR 306,
377, 395), and that without being informed about what was going on during
HFT, "You could have some fear, I guess" (TR 307)
(39) The Shearon Harris safety statistics compare very favorably when
measured against national data relating to heavy construction, there having
been no fatalities during 50 million man-hours of work (TR 372).
F. Concerns Harbored by Complainant and Fellow Workers
(40) Most of the information Complainant received about the HFT
process
was through the grape vine (TR 87), information being provided only through
rumors (TR 206), and discussions among employees (TR 94, 234), including
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discussions about what had happened or what procedures had been followed at
other construction sites (TR 79, 85, 209, 256).
(41) Complainant was told by Fuller that when HFT began access to the
area would be restricted against the presence of ERIs (TR 84, 91), an
understanding entertained by other ERIs (TR 183, 200, 230).
(42) Based on his own experience, Complainant was aware that at the
Manatee plant built for Florida Power & Light access was restricted during
HFT (TR 77), that there were steam, leaks in pipes and boiler breaks, and
that a boiler tube had burst (TR 79).
(43) The practice of restricting access was invoked at the River Bend
plant in Louisiana (TR 164), the Farley project, Dothan, LA (TR 221), the
Callaway project, Jefferson City, Mo (TR 226a, 388), the St. Lucy project,
Hutchinson Island, FL (TR 3 255), and at all other projects known to
Complainant (TR 79).
(44) Moreover, at St. Lucy, supports pulled off the walls during
HFT (TR 266) information which ERI Newell passed along to Complainant
and ERIs Lambert and Stancil (TR 85, 199, 209).
(45) While prior thereto Complainant had worked at numerous
locations,
during his last 2 months at Shearon Harris, due to a reorganization, his work
was confined to the RAB (TR 132, 133), adjacent to the RCB but separated by
containment walls (TR 88), and outside the HFT area (TR 88).
(46) The ERIs were next informed by Fuller that the ERIs might work
in
the RCB the following week (TR 93, 166), although an ERI would not be forced
to work in an environment he believed to be unsafe (TR 94, 381); and
acceptance of an assignment would be voluntary (TR 87, 88, 166, 180, 185, 201,
258, 391, 404).
(47) Due to the backlog of inspections (TR 98, 171, 185, 192, 399), the
ERIs were then informed that work in the RCB would become mandatory and
without exception (TR 98, 167, 186, 202, 235, 259, 397).
(48) Complainant understood that at Shearon Harris, although there was
never an official explanation of the procedure, cold hydro testing was
applied to only 15% of the pipes, observing further that during the course
thereof pipes in the RAB rattled as though full of marbles, and that at one
elevation someone forgot to connect a valve to an 8" pipe, causing water to
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pour on the floor (TR 81).
(49) Again, although there was no official explanation, when HFT was
begin about 12/26/85, Complainant understood "that they were going to jack
this thing up to 125% and check for leaks" and see if the system integrated
(TR 83), and he did not find out until the day he was terminated that the
125% figure applied to cold hydro rather than HFT (TR 122).
(50) Complainant consistently maintained that management provided
no
orientation or information regarding HFT, its purpose, or measures taken to
assure safety after the period of restricted access (TR 98, 108, 113, 114,
138, 355), a proposition generally confirmed by other ERIs (TR 166, 170, 171,
175, 183, 190, 202, 204, 219, 222, 235, 240, 256, 266, 390), and, it appears,
by management (TR 290, 378, 429).
(51) Contributing to Complainant's fears (TR 117) may have been 2
fires
in the RCB electrical equipment during HFT, having reported one himself, when
smoke rose through the floor (TR 89), a contention management seems to
dispute on grounds that there is no record of a fire reported by
Complainant or one in the RAB during HFT (TR 367), conceding, however, that
one may have been so minor that a report was not warranted (TR 367, 368).
(52) Complainant's biggest fear was of the unknown (TR 100), of the
reliability of the system, (TR 119), and the fact that the plant was still in
the testing phase (TR 123, 431), not of ambient temperatures or the prospect
of being burned by hot pipes (TR 120, 419; EX 31), but, rather, the prospect
of encountering ruptures in pipes or valves causing the release of invisible
steam under very high pressure (TR 101, 104, 419, 438; EX 31), or of hangers
breaking loose (TR 438).
(53) Complainant's concerns were shared by others among the ERIs,
including Girton (TR 169, 178, 235), Weinzettel (TR 179, 388), Lambert (TR
184, 187, 192, 220), Stancil (TR 203, 216, 220, 235), Forbis (TR 220, 239),
Newell (TR 236, 261, 265).
(54) Rumors mere being circulated among the ERIs that an invisible
steam
leak could cut an arm off (TR 203, 208), cut a person in two (TR 185, 271),
cut a broom stick in half (TR 209, 215, 232, 243), or pull anchors from
walls (TR 79, 209), and that procedures different from those at Shearon
Harris were followed at other plants during HFT (TR 79, 185, 388).
(55) Management witnesses testified that Complainant at the time of his
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termination had said nothing about not being able to perform proper
inspections in the RCB during HFT (TR 387, 423), stating that Complainant
did, however, make mention of such a contention at an unemployment hearing a
month after termination (TR 423, 441).
(56) On the other hand, Complainant claimed that there was discussion
among the ERIs, "that we may not be able to perform our inspection duties
having the burden that was placed on as, at a 100 percent effective manner"
(TR 94, 95), that Complainant first raised the point a week before his
termination in discussions with ERIs Stancil, Forbis, Girton, Lambert and
Brazleton (TR 156), and that he also made comments to Ray Somers (TR 157).
(57) ERI Forbis confirmed Complainant's testimony, stating that during
discussions among employees almost everybody, including Complainant, voiced
concern about "inadequate concentration to do the work" (TR 234).
(58) Complainant's fellow ERIs believed him to be sincere in the
expression of his concerns (TR 170, 196, 208, 221, 237, 264, 388).
(59) When ERIs performed inspections during HFT, very few other
workers
were in the RCB (TR 173, 188).
(60) Several people received burns from piping or tubing (TR 173, 188,
191, 241, 247, 251), although Daniel's safety manager stated that the
incidence of burns did not increase during HFT (TR 368).
(61) While the ambient temperature at level 286 was 98 Dgrs. and less
at
lower levels (TR 269, 205), ERIs were instructed as a safety measure to work
in groups of 2 (TR 382), and to take frequent breaks to avoid fatigue (TR 96,
416).
(62) Because of adverse working conditions, some inspections could
not
be completed and were turned back to management (TR 195, 214, 215, 239).
(63) Pipe movement could be heard and seen (TR 189).
(64) Management told ERIs, including Complainant that safety in the
RCB
was their own responsibility (TR 97, 187, 207, 211).
(65) Before inspections were reinstituted in the RCB, Weinzettel
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undertook a tour or tours of the building to satisfy his concerns about
safety (TR 382, 381, 151, 214), being accompanied on one such occasion by
Forbis (TR 250); however, he did not recall if all ERIs were given the
opportunity to look around the RCB (TR 384).
G. Termination of Complainant's Employment
(66) Lead ERI Weinzettel, who took over supervision of inspections in
the RCB (TR 99), on 1/21/86 gave complainant a packet of 15-25 inspections,
and, while acknowledging his own doubts, told Complainant he must make the
assignments (TR 100).
(67) Expressing fear that his life was threatened and that his family
would not be provided for if he was killed or injured, Complainant refused
the assignments, offering instead to work elsewhere, or to go home without pay
until HFT was completed, and to complete the assignments after HFT (TR
104, 385, 401; EX 31).
(68) There followed a series of meetings, first with Fuller and Frantz
(TR 103, 400), then in the office of John Peele, Electric Raceway Engineer
(TR 106, 381), Ray Somers apparently having joined as a participant (TR 107,
419; EX 31), as did at some point in the meetings Mike Cleaverman, site
representative for Employee Relations (TR 109) and Michael Pluddamen, Senior
Industrial Relations Representative (TR 152, 438, EX 31).
(69) In an effort to allay his fears, Complainant was told by various
management representatives with whom he met, (a) that, during cold hydro
testing, pressure had been brought up to 125 Dgrs. of normal operating levels
(TR 104, 107, 386, 425); (b) that the Safety Department had checked pipes and
ambient temperatures (TR 107); (c) that safety precautions were being taken
(TR 386); and (d) that a pipe rupture was highly unlikely (TR 424).
(70) Complainant was repeatedly warned that he may be terminated for
refusal to work in the RCB (TR 109), and, in return, threatened that should
that happen Daniels "would be hearing from the boys down town" (TR 110).
(71) Complainant was offered by Somers the opportunity to discuss his
problem with others higher up the ladder, including Dennis King, Construction
Manager, Shep Wagoner, Plant Manager (TR 386, 421), and Mike Chianzi (TR 439,
420) who Complainant claimed was unknown to him (TR 152, 355a); however,
Somers could not say what his superiors could tell Complainant (TR 450).
(72) Management's version of why Complainant declined the offer
focused
on statements attributed to Complainant that he was not interested in
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management opinions (TR 420, 421, 440); however, Complainant contraverted
that version, stating that his actual statement vas that management's
assurance on the matter of safety did not assure him (TR 355b, 451).
(73) Whether Complainant was offered the opportunity to review
pertinent
documents is also a matter in dispute, management contending that he was (TR
448), Complainant contending that he was not (TR 449).
(74) Complainant was not offered the opportunity to talk to anyone in
Safely (TR 394).
(75) During the course of the meetings in Peele's office, Complainant
felt intimidated, harassed, and upset (TR 354, 447).
(76) Complainant was terminated by, Somers about noon on 1/21/86
(TR
111, 441; CX 31), following which Fuller tried unsuccessfully to obtain a
retraction (TR 113).
(77) Complainant contacted OSHA following the meeting in which
ERIs were
told work in the RCB was mandatory (TR 142), and filed a charge the day he
was terminated (TR 144); however, after investigation on 3/17, 19/86, the
North Carolina Department of Labor, Division of Occupational Health & Safety
on 4/8/86 notified Complainant that the complaint was not substantial (EX 3).
(78) He also contacted the NRC, but did not file a charge (TR 150,
362).
(79) On 4/10/86 the Wage and Hour Division, Employment Standards
Administration, U.S. Department of Labor notified Daniels that, with respect
to a complaint filed 2/13/86, Complainant was engaged in a protected activity
within the purview of § 210 of the Act and vas entitled to reinstatement,
back pay and certain other remedies (CX 1).
IV
DISCUSSION AND CONCLUSIONS
A. Cause of Complainant's Termination
The record leaves no room for concluding that complainant's
termination
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was motivated by anything other than his refusal to work in the RCB.
Consequently, the "dual motive" decisions cited on brief have no application
here.
Citation to the text in a voluminous exhibit may be made by following the
exhibit designation with a hyphen and the appropriate page number.
2 See Complainant's brief, pg. 2;
Daniel's brief, pg. 5.
3 A listing of those persons who
appeared and submitted oral testimony at the
hearing is attached hereto as Appendix A.
4 Under date of 8/26/86, a
"Request for Supplemental Briefs" was submitted
to the parties, requesting further guidance in the resolution of
jurisdictional issues. Supplemental briefs were received from the parties on
9/8/86.
5 In the Consolidation
Coal case, the 4th Circuit acknowledged that, * * *
a work refusal may be protected because it is sometimes the only effective
way in which a miner may register a safety complaint". 795 F.2d at 367, fn 1.
6 When requested to file a
supplementary brief identifying specific NRC
safety regulations or statutory provisions relevant to Complainant's refusal
to perform, inspections during HFT, Complainant's counsel responded by
furnishing without further explanation a copy of 10 CFR § 50 which is
comprised of approximately 132 pages. He did not, however, comply with the
request for specific reference to an applicable statute or regulation.
7 Although Weinzettel denied that
Complainant had expressed doubts about
adequacy of inspections during HFT to Daniel's management the day he was
terminated, the assumption is warranted that complainant's lead inspector
knew about the discussions among the ERI, and, certainly, given the
emotional state displayed by Complainant on 1/21/86 it is highly questionable
that he could have performed adequate inspections if he had accepted his
assignments.