outside the containment building. On January 27, 1986, he was told by his foreman, Ed Elliott, that his new assignment would be to perform some welding inside containment. Complainant expressed concern about working inside containment and indicated he would prefer another assignment. TR 372, 395. Complainant was advised that the welding assignment was the only one then available and reminded that a refusal of an assignment was a cause for termination (under a "work rule #14"). TR 374; RX 18. To allay complainant's concerns Elliott then took complainant through the containment building to show him what would be involved in the assignment. In the course of that process, complainant and Elliott passed a check point where they signed-in under REP #13075, put on the appropriate protective over-clothing, and proceeded through another check point; an HP technician accompanied them inside containment. During the "walk through" Elliott explained the location where complainant would be welding and the HP techician took appropriate readings to be sure the levels of exposure were within the ALARA guidelines. In the process complainant noticed another worker who was welding and was not using a respirator. When they left the containment building complainant asked to look at the work area a second time. He, Elliott and an HP technician thus returned to the proposed work area, where the technician took several radiation readings, including one at a pipe which prompted Elliott to question whether lead shielding could be used; the techician responded that under ALARA guidelines it would not be necessary. TR 391-393.

    When complainant and Elliott left the containment building, they removed their protective clothing in a "step off" area. Though complainant later testified that he thought workers were removing their clothing in a haphazard fashion, he did not comment on it to Elliott at the time. TR 88, 398. They then "frisked"' themselves with radiation detectors; the detectors did not indicate any contamination. At the next check point further removed from the containment building, while waiting to frisk themselves a second time, Elliott asked another worker who he new had done welding inside containment whether a respirator had been required; the answer was negative. TR 400. When Elliott and complainant frisked themselves at this check point complainant's frisker sounded an alarm. Complainant made an obscene gesture and said "I don't think I'll go in." An HP technician inspected the frisker and determined it had a loose connection. Also, complainant was re-frisked with another frisker and it did not alarm. After they left the dressing room, Elliott told

complainant to go home and think over whether he would accept the assignment the next day. I credit Elliott's testimony that although he had tried to relieve complainant's misgivings, Elliott thought complainant's essential reluctance to working inside the containment building was such that at that point Elliott expected complainant would decide to quit rather than accept the assignment. TR 403.

    The next day, January 28, 1986, complainant returned to work but Elliott was absent. In Elliott's absence, George Ramirez was complainant's foreman. Ramirez testified that he understood from his discussions with Elliott the day before that complainant was reluctant to accept the welding assignment, and that when he instructed complainant to get his tools ready and to report to the entrance of the containment building complainant first asked about the use of respirators inside containment; Ramirez said that HP would decide whatever was necessary. TR 477-479. Next, when complainant and another worker, Fernando Lopez, who had been assigned by Ramirez to assist complainant, went to the HP building to begin the check-in procedure, they described the location of their intended assignment in such fashion that they were advised by an HP technician that a respirator would be required and that another REP, #13076, would be required instead of #13075. When complainant and Lopez reported that to Ramirez, he went to the HP building and it was resolved that both REPS would be available, #13075 intended for work at the welding site reviewed by Elliott and complainant the day before, and #13076 intended for work whenever on-site radiation readings by the HP technician at the time the work is to be done determine the need for respirators. TR 104, 106-108, 486-490. Later that day complainant went to the foremen's trailer and requested a transfer to a different assignment because he did not want to work inside containment. TR 365, 492. Again, he was advised that reassignment was not possible because the work that needed to be done was the welding job inside containment. In the mutually understood jargon of the trade, the decision complainant faced was "either go in [i.e., accept the assignment], or drag up [i.e., quit), or we'll fire you." TR 127, 493. Still later on the same day, complainant asked Ramirez for a "welder's helmet" and a set of extra-large welding leathers; Ramirez stated they would be available if "hey were required. TR 125, 496, 501.

    Although complainant testified that he was concerned about what he deemed were the inadequacies of REP #13076 in setting forth the permissible contamination levels and the need for a

particular type of respirator (i.e., "full face particulate" versus "welder's helmet respirator"), there is no evidence that he conveyed his concerns to Ramirez or any other supervisor. TR 125, 127-134, 141, 145. By the end of the day, complainant told Ramirez "he felt uncomfortable still with the situation and there was any other jobs he could do." Ramirez responded that he "couldn't re-assign him to another job, 'cause this is the only job that I had and I didn't have the control to reassign him." TR 491-492.

    When complainant reported to work on the following day, January 29, 1986, he was asked by Ramirez what he had decided in terms of accepting the containment assignment. Complainant repeated his prior statement about feeling "uncomfortable" about the HP department and preferring re-assignment. Ramirez repeated that he could not reassign him. Complainant testified that he then asked again about a "welder's helmet." Ramirez testified that when complainant said he wasn't "going in" he was directed to go see Ray Thomas, the general foreman; also, that he, Ramirez, stated "you know, you might get terminated" and that complainant replied "well, we'll see about that." TR 152-155, 493-494. Ramirez first went to Thomas's office and told him "there might be a problem with him [complainant] going in." Thomas told Ramirez "well, if he doesn't, if he refuses to do the job, you have to terminate him." There is no evidence that Thomas had been advised of anything more than complainant's reluctance to accept an assignment inside containment. TR 495-496, 531-532, 552.

    Complainant's visit with Thomas was short. According to Thomas's testimony, he asked complainant "are you going in?" and complainant said "I'm not going in containment" without giving any specific reason. TR 553-554. According to complainant, he answered "no, not under the conditions that are presented ... because I don't believe, you know, it's safe." TR 155. I credit Thomas's version regarding the absence of any attempt by complainant to mention specific "safety" concerns or equipment, because the record indicates that at his deposition, a week before the hearing, complainant testified that he did not attempt to give Thomas any reasons for his refusal to accept the assignment. See TR 330-332; RX 12. In any event, there is no dispute concerning the fact that Thomas then said "that's it. If you don't, you're terminated." TR 576. Complainant then left Thomas's office, received a termination notice, signifying "violation of project work rule #14" as the reason, CX-H, and processed out,

TR 157-162. According to Thomas's uncontroverted testimony, work rule 14 has been in force at the job for several years and it has been applied uniformly in cases of refusals to accept an assignment. TR 553.

    Before leaving the premises, complainant evidently contacted H.B. Ray, the site manager, who had the HP department initiate an investigation of the episode. On February 2, 1986, complainant filed a grievance with the SONGS site manager. On February 12, 1986, the HP investigation concluded that "appropriate radiological protection measures were taken in all instances and supervisory attention to the individual's concerns was adequate." RX 15. On February 20, 1986, complainant filed a complaint with the U. S. Department of Labor. CX-I, J.

    Mark Lewis, the HP engineer who conducted the investigation for the HP department, testified with persuasive clarity that the use of the separate REPs #13075 and #13076, that the determination not to shield the pipe in the area where the welding was to be done, that the lack of a specification in REP #13075 for the use of a respirator, and that the absence in REP #13076 of a reference to welder's helmets or other equipment related to non-radiation safety matters were all consistent with the accepted procedures for insuring that welders were to be exposed to radiation below permissible federal limits and within ALARA guidelines. Further, Lewis testified, without contradiction, that there is a drop box at the entrance to SONGS Unit No. 1 for workers to register any concerns they have as to nuclear safely, that the contents of the box is collected, logged and assigned for appropriate attention on a daily basis, and that the filing of a complaint in the box serves to convey immediate immunity from termination until the matter is resolved. See TR 593-594, 641, 668, 673, 679-681. There is no evidence that complainant ever filed anything in the drop box.

    Finally, the record reflects that some five workers had previously been terminated by Bechtel for refusal to accept assignments between 1982 and 1984. RX 18.

Discussion

    Section 210(a) of the Act prohibits discrimination against any employee who:

(1) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter...or a proceeding for the administration or enforcement of any requirement imposed under "his chapter ... ;

(2) testified or is about to testify in any such proceeding or;

(3) assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other manner in such a proceeding or in any other action to carry out the purposes of this chapter or the Atomic Energy Act of 1954, as amended.

42 U.S.C.A. § 5851. Thus, by its terms the statute requires a showing in this case 1) that complainant engaged in one of the enumerated, protected activities, i.e., testifying or commencing to participate in a nuclear regulatory action, and 2) that the employer terminated him because of such activity. Logically, for the latter element to be satisfied it must be shown that the protected activity occurred before the decision to terminate.

    The first question to be addressed in this case, therefore, is whether complainant's actions on January 27-29, 1986, constituted an activity that is protected within the meaning of section 210(a) of the Act. Since the record clearly establishes that complainant had not testified in any Nuclear Regulatory or related proceeding, and had not yet filed any kind of complaint with any agency charged with enforcing nuclear safety concerns, the issue is whether the objections or views he expressed or conveyed to Elliott, Ramirez or Thomas, or the refusal to work itself, constituted the type of activity referred to in section 210(a) of the Act. I must conclude that they did not.

    Briefly stated, although there is a recent split of authority on the question of whether "internal" complaints about nuclear safety are protected under the Act, even the affirmative answer of the Ninth Circuit limited the application of its holding to "quality control inspectors," who were found to be performing functions essential to the commencement of a Nuclear Regulatory Commission proceeding. See Mackowiak v. University Nuclear Systems, 735 F.2d 1159, 1163 (9th Cir. 1984); Brown & Root Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984). Here, I find that complainant was not a quality control inspector; he was a rank and file electrician/welder. His expressed reluctance about performing

January 28th, that he was going to be placed in jeopardy of inappropriate radiation exposure, or that if he did have such a belief, that he would not have pursued the question with an HP technician or with Thomas before allowing himself to be terminated. See Blackburn v. Metric Constructors, Inc., 86-ERA-4 (1986). Indeed, I am persuaded that if he had presented his concerns to an HP technician, the matters of the absence of shielding for welding near the pipe, the use of two different REPS, and the lack of specificity regarding respirators and welders' leathers, for example, would have all been explained, as they were by witness Lewis at the hearing, as consistent with the normal procedures for minimizing radiation exposure on the job, and that complainant would have nonetheless chosen to refuse the assignment.

perceived that he was making excuses for not going inside the containment building, consistent with his original fears about such work and regardless of their efforts to assure him that all that was required by the HP department would be provided; 2) that they conveyed the substance of that information to Thomas, who, consistent with what appeared at the hearing to be his characteristic curt manner, perfunctorily applied the employer's long-standing policy regarding persons who refuse to accept assignments; and 3) that the employer has on several prior occasions applied of work rule #14" to terminate other persons who declined to accept an assignment. On this record, therefore, I conclude that the stated reason for complainant's termination was not a pretext and that he was not discriminated against within the meaning of section 210(a) of the Act.

    It is recommended that the complaint of Michael D. Wilson be dismissed.

       ALFRED LINDEMAN
       Administrative Law Judge

Dated: 31 OCT 1986 San Francisco, California