During his first weeks
at the site, complainant received extensive training, including
information as to types of radiation exposure, protective
procedures and equipment, and the function of the Health Physics
("HP") department. See CX-A, B, C, D, E; RX 17. The HP
department is responsible for adopting and carrying out the over-all
safety procedures to "make every reasonable effort to maintain
radiation exposures... as low as is reasonably achievable
["ALARA"]." (underlining added) 10 C.F.R. § 20.1(c). Under the
ALARA guidelines the functions of the HP department include the
preparation of Radiation Exposure Permits ("REPs") that set forth
the radiation protection clothing and equipment required for each
work assignment, establishing an elaborate system of "check
points" that must be passed before entering and after leaving the
nuclear containment building, and providing for the presence of
HP technicians whenever the containment building is entered. RX
8, 13-14; TR 598.
For the first few weeks after training complainant worked
[Page 3]
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
[Page 4]
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
[Page 5]
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,
[Page 6]
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:
[Page 7]
(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
[Page 8]
the proposed duties inside the containment building did not
arise in the context of investigating any suspected deficiency in
the enforcement of nuclear regulatory regulations. Rather, his
reluctance to accept the assignment stemmed from his immediately
expressed personal concern about working inside the containment
building.2 While I certainly find such
reluctance understandable,
it cannot be said that "safety concerns" voiced in connection
with furthering that personal attitude, without any evidence
that they were conveyed to anyone such as a "project ombudsman"
or an HP technician, are the kind of activities set forth in
section 210(a) of the Act. 3 See Pensyl
v. Catalytic, Inc. ,
83-ERA-2 (1984). Accordingly, I find that complainant's activities
on January 27-29, 1986, were not cognizable as protected
activities within the meaning of section 210(a) of the Act.
Assuming, for the sake of argument, however, that all
internal safety complaints, even those by workers not involved with
quality control, are protected activities under section 210(a) of
the Act, I will also make the following further findings and
conclusions.
First, although I believe that complainant genuinely felt
the "concerns" he communicated to Elliott and Ramirez, I cannot
find that his expression of those concerns was intended to
"commence a proceeding" or "action to carry out the purposes" of
the Act. Rather, I am convinced that such intent arose only
after he had met with Thomas and been terminated. The record
indicates that the "concerns" articulated in the complaint and
testified to at the hearing were not pursued at the time they
allegedly arose with the HP technicians, who, according to
complainant's training would have been the proper persons to whom such
safety concerns should have been addressed in the event he was
dissatisfied with the answers he was getting from his
supervisors. The reasonable inference I must draw from the absence of
such evidence is that the complaints registered for the first
time after the termination were "second-thought" justifications
for having made a conscious decision to refrain from working
inside a containment building because of his underlying aversion
toward such work. It is simply not credible to me that an
experienced nuclear industry worker, such as complainant, could have
reasonably believed, after his training, his "walk-through" with
Elliott on January 27th, and the deliberations with Ramirez on
[Page 9]
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 .
Finally, even assuming it could be found that complainant's
actions on January 27-28 did evince an intent on his part to
commence a complaint about safety, I find that the employer did
not perceive it that way and did not discriminate against him.
At best, viewing the facts most favorably to complainant, they
establish a failure of communication, not discrimination. That
is, as far as complainant's supervisors were concerned, having
given him an assignment, they heard him respond first with
generalized misgivings about working inside containment, followed by a
series of specific "concerns" e.g., shielding around the pipe,
then the frisker alarm, next the REPs to be used, next the use of
a respirator, next the availability of welder's leathers. At
each point, starting with Elliott's "walk through" on January
27th, his supervisors felt they were giving him assurances that
whatever was required by the HP department would be supplied, and
his further questions were taken to be excuses for not accepting
the assignment regardless of the answers to those questions.
Complainant, on the other hand, understood each response from his
supervisors to be an ultimatum to agree to "go in or else," which
led him to think pursuing the issue would not be worthwhile. In
effect, complainant was waiting for each of his "concerns" to be
attended to before he gave his answer as to accepting or
declining the assignment, while his supervisors were waiting for him to
accept the assignment before attending to the specifics that
would come once the work began under the auspices of an HP
technician.4
In any case, to summarize the essential findings on this
issue, I find: 1) that complainant's supervisors genuinely
[Page 10]
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.
RECOMMENDED ORDER
It is recommended that the complaint of Michael D. Wilson be
dismissed.
ALFRED
LINDEMAN
Administrative Law Judge
Dated: 31 OCT 1986
San Francisco, California
[ENDNOTES]
1 "RX" and
"CX" denote Respondent's and Complainant's Exhibits
respectively; "TR" denotes the transcript of the hearing.
2 It is noted that an earlier (1974)
decision under the Federal
Coal Mine Health and Safety Act held that a refusal to work
because of personal safety reasons was a protected internal
complaint, even though the Mine Safety Act did not at that time
specify coverage for internal complaints. Phillips v. Interior
Board of Mine Operations Appeals , 500 F.2d 772 (D.C. Cir. 1974).
I do not find that decision binding, however, because the Mine
Safety Act, on which the Energy Reorganization Act was modeled,
was thereafter amended in 1977 to include such specific coverage
for internal complaints whereas section 210(a) of the Energy
Reorganization Act, passed after the 1977 amendments to the Mine
Safety Act, did not include such a provision. See S. Rep. No.
95-848, 95th Cong. 2nd Sess., 1978 U.S. Code Cong. and Adm. News
7303.
3 I find it significant that
complainant, a worker with prior
experience in the nuclear industry, who had completed the
extensive training referred to above, did not see fit either to file
his "safety concerns" in the box provided for them or to register
his concerns with an HP representative, despite the fact that the
events that are the subject of this action transpired over a
three day period.
4 It can certainly be speculated
that the unfortunate outcome
for complainant might not have occurred had Ramirez or Thomas
taken the time to make him understand that the specifics would
indeed be attended to once complainant indicated he would accept
the assignment, or if complainant had first stated he would
accept the assignment and then made his specific inquiries as he
went along. In my view, however, the remedy, if any, for such a
mutual failure of communication is a union/management arbitration
proceeding of some sort, not an action under section 210(a) of
the Act.