The target date for completion of the plant is about 11/1/86 (TR 380). As but one of a variety or series of testing procedures, on 12/28/85 so-called hot functional testing [HFT] was begun in the Reactor Containment Building [RCB], the completion date for such testing being 2/15/86 (CX 29; TR 432). During HFT, water was heated in pipes within RCB under pressure of as much as 2250 pounds per square inch (psi) to temperatures approximating 557 Dgrs. Fahrenheit (EX 6; TR 293). During the initial stages of HFT, personnel access to the RCB was limited by management, being controlled through use of guards, signs, special badges and barriers (TR 84-86, 139). ERIs were excluded. Operating temperatures were reached on 1/12/86 (TR 295). Thereafter, it was announced that, because of a backlog of inspections, ERIs would be required to work in the RCB. Complainant and other ERIs were apprehensive about entering the RCB during testing. Complainant's fears focused on the possibility of ruptured pipe or of a hanger breaking loose (TR 101, 120, 419). When given specific assignments

in the RCB on 1/21/86, Complainant refused to work there, offering in the alternative to work elsewhere or go home without pay until HFT was completed. Following discussions which began with his "Lead" ERI and continued several steps up the chain of command ladder, and after repeated, though unsuccessful, efforts were made to convince Complainant that his fears were unwarranted, he was terminated.

A. Stipulations

    At the hearing it was stipulated that: (TR 353)

    (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

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).

    (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).

    (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).

    (33) An undated, unsigned HFT "Problem List" (CX 28) identified 21 problems including:

(a) Excessive pipe movement

(b) Leaks --
Packing
Steam
Bypass valve
Temporary fitting
Pressure control valve
Sight glass

(c) Pressurizer spray valve riot seated properly

(d) Broken valve operator

(e) Malfunctioning Safety Injection Accumulator sampling valve

(f) Malfunctioning orifice isolation valve

(g) Malfunctioning Steam, Generator Sample valve

    (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

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

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

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

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

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).

A. Cause of Complainant's Termination

    The record leaves no room for concluding that complainant's termination

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.

B. The Jurisdictional Issues

(3) * * * participated * * * in any other action to carry out the purposes of this chapter" or the Act.

    The stipulations recited hereinbefore concede that CP&L and Daniels are subject to the Act. That Complainant was an employee of Daniels is not disputed. That Complainant was discharged because of his refusal to work in the RCB during HFT is also beyond dispute. While the remaining jurisdictional issue is whether Complainant's refusal to work was an activity protected by the provisions of § 5851, there are certain adjuvant considerations which must first be resolved, to wit:

(1) May a refusal to work qualify as a "proceeding" or "other action" as those terms are used in § 5851?

(2) Is there a nexus between complainant's refusal to work and administration or enforcement of a requirement of, or carrying out the purposes of, the Act or the U.S. Code Chapter of which § 5851 is a part?

    That in certain specific circumstances refusal to work is a protected activity under § 5851 would appear to have been resolved by the decision of the Secretary of Labor in Pensyl v. Catalytic, Inc., 83-ERA-2 (1984). There, drawing support from, the legislative history and decisions rendered pursuant to the employee protection provisions of the Federal Mine Safety and Health Act, found to be in pari materia to 42 U.S.C. § 5851, the Secretary stated: (pgs. 6-8).

"A worker has a right to refuse to work when he has a good faith, reasonable belief that working conditions are unsafe or unhealthful. Whether the belief is reasonable depends on the knowledge available to a reasonable man in the circumstances with the employee's training and experience.

If Catalytic was in full compliance with NRC regulations, and that fact as well as the reasons for the change in procedures were adequately explained to employees, refusal to work lost its protection under the ERA at that point."

(2) Restricted access during the entire HFT period was consistent with Complainant's experience elsewhere, and experiences voiced by fellow workers who had earlier worked in construction of nuclear power plants (Findings 42, 43).

(3) Rumors and allegations were rife that super heated steam escaping under pressure from pipes, welds, and valves could cut one's arm off or cut one in half (Finding 54).

(4) The obvious purpose of a test was to determine if there was something wrong with the system (Findings 19, 24).

(5) Having first told ERI that no inspections would be performed in the RCB during HFT, and then said that inspections would be performed on a voluntary basis, management in the perspective of the ERI's reversed 180 Dgrs. to a position that inspections would be mandatory (Findings 41, 46, 47).

(6) Complainant was aware that leaks appeared in the system during cold hydro testing (Finding 48).

(7) No persuasive explanation was provided (Findings 40, 49, 50) by management to Complainant and his fellow ERIs concerning -

(a) The purpose of HFT and procedures followed to achieve that purpose.

(b) How HFT meshed in purpose and procedure with the earlier cold hydro testing.

(c) Why access was restricted during the initial HFT phase, but thereafter was lifted to allow ERI activity during the subsequent phase.

(d) What safety measures, if any, had been taken to protect ERIs during their inspection activities.

(8) Other ERIs were acknowledging apprehensions similar to those of Complainant (Finding 53).

(9) Complainant entertained significant concern about who would provide for his family should he be killed or injured, a concern which was not allayed by management's position that safety was his own personal business (Findings 64, 67).

    Given the atmosphere within which Complainant's refusal decision was formed, it is readily understandable why Complainant made it. Stated somewhat differently, under the circumstances Complainant's refusal to work in the RCB during HFT was reasonable. It may also be noted that every witness who was asked about it, expressed the opinion that Complainant was sincere in his belief that the RCB was an unsafe place to work during HFT (Finding 58). Moreover, Complainant's background is such that he cannot be relegated to the ranks of the faint hearted (Findings 3, 5).

    The next question to be considered is whether management's representations to Complainant on 1/21/86 were adequate to dispel whatever reasonable fears Complainant possessed. It appears that those on the management ladder who attempted to persuade Complainant that his fears were unfounded focused principally upon the proposition that pressure had been brought to 125% of normal operating capacity during the cold hydro testing; that pressures during HFT were lower and thus, presumably, safe, and that Complainant should be willing to accept the assurances of those who spoke with him, or those of persons higher on the ladder, should Complainant be willing to talk with such persons (Findings 69, 71). As Complainant aptly put it, the assurances of management did not assure him -- and reasonably so.

    None of those with whom Complainant talked on 1/21/86 were shown to have any expertise in the area of safety (Finding 74). Given the complexity of the RCB and the environment within which Complainant made his refusal decision, something more than management provided was necessary to relegate Complainant's refusal to work to the category of any unprotected activity.

    Based on the foregoing and consideration of the entire record, I find and conclude that Daniels is an employer as that term is used in 42 U.S.C. § 5851; that Marvin Lloyd Van Beck was an employee of Daniels for the purposes of said statute; that Van Beck was terminated because of actions protected by the statute; and that he is entitled to appropriate relief.

    Accordingly, it is hereby ordered that the following actions be taken:

1. Daniels will offer to Complainant immediate and unconditional reinstatement to his former position of Electrical Raceway Inspector at the Shearon Harris Nuclear Plant site, subject to the same terms, conditions and privileges as prevailed immediately prior to 1/21/86.

2. If ERI activity has been completed, Daniels will employ Complainant

at Shearon Harris in another position within his capabilities and able in term of pay, privileges and benefits.

3. Daniels will compensate Complainant for lost back pay commencing with 2 PM, 1/21/86, the computation thereof to include the following:

    a. Upward adjustment to reflect any pay raises accorded Electrical Raceway Inspectors generally after 1/21/86;

    b. Upward adjustment to compensate for lost overtime, the number of hours thereof to be determined by computing the average amount of overtime logged by Electrical Raceway Inspectors at Shearon Harris each pay period following 1/21/86;

    c. Downward adjustment to deduct from the amount due Complainant from Daniels for each pay period whatever money Complainant earned during such period from other employment since 1/21/86;

d. Upward adjustment to allow for payment of interest computed from the date payment for each pay period was originally due to be paid, the interest rate to be that specified in 28 U.S.C. § 1961.

4. Daniels will remove from all personnel and other records any adverse references to Complainant arising out of his protected activity, including any indication that Complainant was discharged for refusing to perform a work assignment.

5. Should a prospective employer or any other person inquire about Complainant's employment by Daniels, it will assure that no statements are made which would have the effect of "blacklisting" Complainant from any future employment.

6. Daniels will compensate Complainant for all costs and expenses, including legal fees, reasonably incurred as a result of the litigation leading to the issuance of this Order.

7. Complainant's attorney shall, within 20 days of the receipt of this Order, submit a fully supported fee application, a copy of which shall be sent to opposing counsel, who shall then have 10 days to respond with objections thereto.

8. Should any provision of this Order need clarification or should a dispute about application or computation arise, any party may seek relief by filing an appropriate petition with the Office of Administrative Law Judges, Department of Labor, any response thereto to be due within 20 days of such filing.

       JOHN C. BRADLEY
       Administrative Law Judge

JCB/llk