Date Issued NOV 26 1986
Case No. 86-ERA-33

In the Matter of

JOHN B. SPENCER
   Plaintiff

    v.

HATFIELD ELECTRIC CO.
    Respondent

Appearances:

Ted V. Ruffin, Esq.
Darrel Walters, Esq.
    for the Plaintiff

Peter DeBruyne, Esq.
    for the Respondent

BEFORE: Richard E. Buddleston
    Administrative Law Judge

    This is a proceeding under the Energy Reorganization Act of 1974, as amended (hereafter called the "Act"), 42 U.S.C. § 5851 and its implementing regulations, 20 C.F.R. Part 24. The Act, in § 5851 (a), generally prohibits a Nuclear Regulatory Commission (NRC) licensee from discharging or otherwise discriminating against an employee who has engaged in protected activities as set forth in the Act.

    The Plaintiff, John B. Spencer, filed a complaint on May. 29, 1986, with the Office of the Administrator, Wage and Hour Division, Employment Standards Administration (ESA), U.S. Department of Labor. His complaint alleges that he was terminated by Hatfield Electric Company (hereinafter, "Hatfield"), because, "I feel the reason I was laid off was because I went to the NRC."

    Hatfield Electric Company was at all times relevant to the matters involved in this case, a subcontractor to Commonwealth Edison Co. which was either a Nuclear Regulatory Commission Licensee or an Applicant for NRC License. Commonwealth Edison Co. has been involved in the construction of a Nuclear Power Station at Byron, Illinois, and Hatfield has employed both production personnel for the physical construction of the plant and inspectors in its Quality Assurance/Quality Control Department. Spencer was employed by Hatfield as an inspector from August 1984 through May 16, 1986.

    The Complaint filed by Spencer states that on May 7, 1986 he met with Julian M. Hinds, Jr., the resident NRC inspector at the Byron Station. The purpose of the meeting was to discuss his feeling that he was being harassed when he went to the vault at Hatfield's main office to verify paperwork necessary to completion of inspection reports assigned to him.

    Spencer complains that on May 7, 1986, while at the main vault, he received a call from his Lead Inspector asking what he was doing at the main office, and that this had occurred 4 or 5 times before. He indicates that be then went to see Mr. Al Smith, QA/QC Manager, to discuss this matter, and that,

I informed Mr. Smith that I felt that this was harassment and that every time I go to the vault or see Engineering, my Lead would get a phone call wondering what the hell I was doing up at the office. I had informed Mr. Smith at this

time that if this practice was going to continue that would be filing a complaint with the Nuclear Regulatory commission a bout this harassment. At that time I asked Mr. Smith, "was this going to continue?" His answer was "yes."

    At the meeting with NRC inspector Hinds, Spencer states that he discussed this problem and told him that all management wanted to do was get the reports out and get the project done. He states that he was informed that if he filed a complaint, he might get laid off in the near future, but indicated he wanted to file a complaint anyway.

    A meeting was held at the plant on May 9, 1986 with NRC inspector Hinds and other inspectors including Spencer. On May 16, 1986 Spencer was informed that he was being laid off with another inspector and a surveyor. The reason given to Spencer for his lay off was that the work was winding down. Spencer indicates that he responded that the reason he was being laid off was because he had gone to the NRC.

    Spencer's complaint (May 29, 1986) was investigated by ESA, and on June 24, 1986 a finding was made that Mr. Spencer was a protected employee engaging in a protected activity under the Energy Reorganization Act and that discrimination as defined and prohibited in the Act was a factor in his lay-off. This finding advised that Hatfield should reinstate Spencer with retroactive pay, and attorney's fees.

    In response to the adverse finding by ESA, Hatfield requested an appeal and a formal hearing before an Administrative Law Judge on June 27, 1986. This matter was assigned to this Administrative Law Judge for disposition on July 7, 1986. A formal hearing was conducted on August 19, 20 and 21, 1986 at Davenport, Iowa. All parties were afforded full opportunity to present evidence and to examine and cross-examine witnesses. Testimony from witnesses called by both the Plaintiff and the Respondent was produced.

    The Plaintiff offered exhibits marked as C-1 through C-10, C-13 through C-21; all of which are admitted into the record except C-2, which was not admitted. There are no exhibits marked as C-11 or C-12. The Respondent offered exhibits marked as R-1 through R-15 which are admitted into the record. The Parties offered one joint exhibit, marked as J-1, which is admitted.

The record was left open 15 days post hearing for briefs. However, upon motions by both parties for an extension of time for filing briefs, the record was left open until November 1, 1986. Both the Plaintiff and the Respondent have filed post-hearing briefs. The Plaintiff has waived the time limits for the final decision of the Secretary of Labor under 20 C.F.R. § 24.6, in view of the lengthy transcript and the need to receive the transcript prior to drafting his brief.

    The findings of fact and conclusions which follow are based upon my observation of the appearance and demeanor of the witnesses who testified at the hearing and upon an analysis of the record, including all documentary evidence provided, statutory provisions, regulations, case law and arguments of the parties.

    1. Whether the Plaintiff was discharged from employment at least in part because of his engaging in activity protected under the Energy Reorganization Act; and

    2. Whether the Respondent would have discharged the plaintiff even if the protected activity had not occurred.

    In order to prevail under the Energy Reorganization Act, the Plaintiff must prove that Hatfield Electric Co. is an employer subject to the Act; that he was discharged or otherwise discriminated against with respect to his compensation, terms, conditions or privileges of employment; and that the alleged discrimination arose because the employee participated in an NRC proceeding. DeFord v. Secretary of Labor, 700 F.2d 281, 286 (6th Cir, 1983). Once the employee shows that an illegal motive played some role in the discriminatory act(s), the burden shifts to the employer to prove that he would have discharged or taken whatever discrimination action was proven, even if the protected activity did not occur. Mackowiak v. University Nuclear Systems, Inc., 735 F. 2d 1159 (9th Cir. 1984). See also NLRB v. Transportation Management Corp., 103 S. Ct. 2469 (1983); Mt. Healthy, 429 U.S. 287, 97 S. Ct. 576.

    The parties have agreed that Hatfield Electric Company was at all times relevant to this case, a sub-contractor to

Commonwealth Edison, who was either an NRC licensee or applicant for an NRC license. (See, Joint exhibit 1). In addition, it is not contested by the Respondent that Spencer did in fact discuss with an inspector for the NRC what he considered harassment with respect to his examination of documents in the main office vault.

    The Respondent however contends that the decision to lay off Spencer was made prior to such contacts with NRC. (See, Respondent's brief.) Since it is not contested that contacts were made with NRC, I find that Spencer was a protected employee within the meaning of the Energy Reorganization Act. However, it remains to be determined whether Spencer's protected activity was a factor in his discharge or whether he would have been laid off in any event.

    The Respondent has argued in its brief that the decision to lay off Spencer was made on May 5, 1986 (see, exhibit R-14), two days prior to the incident where Spencer advised he was going to complain to the NRC. Thus, it is argued that Spencer's complaint to the NRC could not have been a factor in his discharge. The Respondent further argues that even if it is found that Spencer's protected activity partially motivated Hatfield's layoff decision, Hatfield would have laid off Spencer if the protected activity had not occurred.

    The Plaintiff argues that exhibit R-14 and the testimony supporting it are fabrications created after the fact in an effort by Hatfield to escape liability for wrong doing in violation of the Federal Law (Plaintiff's brief at page 4). The allegation that the document itself is a "fabrication" is a very serious charge, raising even the issue of possible criminal activity by falsification of the document.

    In support of that argument, the plaintiff notes that both Al Smith and Ross Farrell were fired by Hatfield shortly after Mr. Spencer's layoff. (Ross Farrell was the Plaintiff's lead inspector, while Al Smith was QA/QC manager for Hatfield). In addition, Counsel questions why the exhibit was not produced as a part of his requested discovery, and submits that "Counsel for Hatfield claimed he had produced all documents of which he had knowledge, and yet the testimony of Al Smith makes clear that Hatfield's counsel was aware of the document long before Claimant's counsel made their request for production."

    At the hearing Al Smith was questioned regarding the reason he was released from Hatfield's employment shortly after the Plaintiff's layoff. In response to the question from Plaintiff's Counsel, "What was your reason for leaving Hatfield Electric Company then?", Mr. Smith responded that "That was a political situation ... All I know is it's a political situation. That's the information I have. I have no other information." (See, transcript page 666).

    The implication from Counsel is apparently that Al Smith was fired somehow because of the John Spencer situation. However, there is absolutely no evidence to support this contention. Further, even if Hatfield did fire Mr. Smith somehow because of Spencer's complaint to the NRC, such evidence is not sufficient to prove that the document in question (R-14) was a fabrication.

    Mr. Ross Farrell was also questioned regarding the termination of his employment by Hatfield shortly after Spencer's release. (See, transcript pages 568-576.) Farrell testified that he was terminated due to a reduction in force. He did indicate that he understood someone else had taken his place, but denied any knowledge of any criticism of his work by the NRC. However, the issue at hand is whether this information somehow supports this allegation by Counsel that R-14 is a "fabrication." It is my judgement that it simply does not, and there is no other evidence in the record to support such. Even if Hatfield fired Farrell because Spencer made a complaint to NRC, such is not evidence that R-14 is a fabrication. Indeed, Mr. Farrell credibly testified that the decision as to who should be reduced in force was discussed in advance of May 7, 1986, and verified his part in the decision reflected in R-14.

    As indicated, Counsel has also argued that the failure of Counsel for the Respondent to produce R-14 prior to the hearing is further evidence of the fabrication of R-14.

    Prior to the hearing, a request for production of the Plaintiff's personnel file and other documents was made by Counsel for the Plaintiff on August 1, 1986 (received at the Administrative Law Judge's office on 8/4/86). Because the hearing was scheduled only 15 days after receipt of the motion, leaving a possibly insufficient time for the Respondent to reply to the motion prior to the hearing on August 19, 1986, a telephone conference was conducted on August 13, 1986, with Mr. Darrell Walters (co-counsel with Mr. Ted Ruffin for the Plaintiff) and Mr. DeBruyne

for the Respondent.

    During the conference, it was agreed by Counsel that the requested documents had been provided to the Plaintiff. It was represented by Respondent's Counsel that the entire personnel record had been produced, but that other documents not contained in the personnel file might be offered into evidence. When Mr. DeBruyne advised that other documents which were not a part of the personnel record might be offered at the hearing, I advised Mr. Walters that a continuance of the entire matter would be granted so that all documents could be reviewed by the Plaintiff in advance of the hearing. Mr. Walters advised that a postponement was not requested and that the Plaintiff would rather have the hearing as scheduled on August 19, 1986. (See, transcript page 655.)

    The record does not contain any evidence that exhibit R-14 was ever a part of the Plaintiff's personnel file. This document is a message from Ross Farrell dated 5/5/86 to Al Smith, QA/QC Manager, advising of 4 individuals to be affected by a reduction in force effective 5/16/86. The Plaintiff's name is included in this list. The document further reflects the approving signature of Al Smith with a date of 5/5/86.

    The Plaintiff objected to the admission of exhibit R-14 on multiple grounds, including the failure to produce that document prior to the first day of the hearing. While it is true that discovery requests were made, and the Respondent agreed to produce the Plaintiff's entire personnel file, R-14 was not submitted to Counsel until the first day of the hearing.

    No explanation has been offered by the Respondent to the obvious question of, why was R-14 not brought to the attention of the Plaintiff or the U.S. Department of Labor investigators until the first day of the hearing. Nevertheless, unless one is prepared to believe that R-14 is a complete fabrication, this failure to produce the document does not negate the evidence it contains; i.e., that the decision to lay of Spencer was made 2 days before there was any indication that he had a complaint to make to the NRC. From my consideration of the evidence, I am not prepared to believe that R-14 is a fabrication. I am persuaded from the evidence that R-14 was drafted and executed on May 5, 1986.

    I have carefully considered all the evidence in the record

including the testimony of witnesses, and specifically the testimony of both Ross Farrell and Al Smith. I find that both Mr. Farrell and Mr. Smith testified credibly that the decision to lay of the Plaintiff was discussed prior to, and finally made on May 5, 1986. The credible evidence establishes that Mr. Spencer was reduced in force as a part of the overall shut down of Hatfield's primary work, since the power plant was virtually completed.

    Based upon all of the foregoing, I find that the evidence does not establish that there is any relationship between the discharge from employment of John B. Spencer and his protected activities under the Energy Reorganization Act.

    In view of this decision, I find that it is not necessary to rule upon the issue of the admissibility of C-2, which was raised at the hearing, with ruling reserved. The Plaintiff sought to establish by C-2, that "Hatfield Management agreed upon seniority for laying off pending equal qualification and competence." (See, QA/QC Negotiations 1/21/85 Minutes, paragraph 3, C-2 not admitted.) Exhibit C-2 was not admitted (Transcript page 167), upon the Respondent's objection; the exhibit contains the negotiation notes preliminary to execution of the final agreement entered into between the International Brotherhood of Electrical Workers and Hatfield. Counsel for the Plaintiff has argued that there is evidence of fraud on the part of Hatfield, with regard to whether this provision was intended to be included in the final draft of the agreement; and as such, this parole evidence should be admissible.

    It is my judgement that even if the seniority provision were a part of the agreement, such would not be relevant to the issue in this case of whether Spencer's protected activities played any part in his discharge from employment. As indicated, I find that R-14 conclusively establishes that the decision to fire Spencer was made prior to and independent of Spencer's contact with the NRC. Thus, even if the decision were made in violation of the terms of any collective bargaining agreement, such has no relevance to the issue before me.

    It is hereby Ordered that the complaint of John B. Spencer under the Energy Reorganization Act is Dismissed. Pursuant to 29 C.F.R. § 24.6 this recommended decision shall be forwarded to the

Secretary of Labor for final order.

       RICHARD E. HUDDLESTON
       Administrative Law Judge