Georgia Power has several programs in place designed to enhance and
[Page 3]
ensure both personal and operating safety. One of these programs is the
"Quality Concerns Program" which is designed to ensure that everyone involved
with the Project has an opportunity to raise any quality or safety concerns
outside normal supervisory channels. Individuals participating in this program
are promised confidentiality and are given the opportunity to participate
anonymously. All concerns are investigated and, if the concern is well
founded, prompt corrective action is taken. The Quality Concern Program is
completely separated from normal Project construction management. (Co. Ex. 8,
T. 186)
Employees may raise concerns with the internal "Quality
Concerns Program"
relating to violations of Nuclear Regulatory Commission (NRC) regulations, as
well as to items or activities that are merely in variance to approved
procedures or good engineering practices. The U.S. Nuclear Regulatory
Commissions, however, has regulatory responsibility for matters affecting
public health and safety and compliance with its regulations and requirements.
(Co. Ex. 8) This responsibility has not been transferred or assigned to the
Quality Concerns Programs.
C. Complainant's Employment in General
Complainant worked on the "A" shift from February 24,
1986 through June
19, 1986. During this time he worked under four different foremen. The first
was Ricky Dugger, under whom he worked on chilled water piping, duct work
main steam work as well as various other jobs. (T. 54) During the time that
Dugger was his foreman Complainant did not file any quality concerns.
Two incidents mark the period during which Dugger was Complainant's
foreman. First, Dugger asked his crew to fix an elbow in some pipe. He did not
want the crew to take the elbow apart because too much work had already been
invested in it. Complainant testified that the crew took the elbow apart despite Dugger's
instructions because it was the only way to properly fix it.
In addition to the pipe elbow incident, complainant was also hurt on the
job, injured occurred when Complainant slipped and fell while climbing some
scaffolding. It was Complainant's impression that Dugger disliked him because
of these two incidents.
Complainant also testified that Dugger was somewhat disorganized. He
would often fail to have the proper materials on hand for his workers (T. 58)
yet he would become angry when they failed to get their work done. (T. 55).
[Page 4]
Ricky Dugger testified that Complainant would often "fool
around" too
much." (T. 211). He did not stay in his own work area. Dugger wanted
Complainant transferred to another crew because he was not completing enough
work but General Foreman Bill Deloach had no space for him elsewhere.
Eventually Todd Snell replaced Ricky Dugger, becoming Complainant's second
foreman.
Complainant testified that Todd Snell was a good foreman and that they
had no problem. Complainant did, however, have problem with Bill Deloach and
Bart Collins, the "B" shift superintendent. They attempted to give Complainant
a reprimand for being out of his work area but Complainant did not accept the
reprimand. Bill Deloach testified that Snell had asked to have Complainant
transferred to a different crew because Complainant would not do his work. He
talked to the other workmen and slowed them down. (T. 220) Approximately one
week after this request Snell approached Deloach and stated that he no longer
wished to be foreman. He was replaced by Paul Bradley, Complainant's third
foreman.
Complainant testified that he worked for Paul Bradley for
approximately
six weeks. During this time Complainant filed several quality concerns.
Bradley testified that Complainant had a "lackadaisical" attitude, that he did
not finish his work, and that he was always ready with an excuse. (T. 232)
Bradley noted that Complainant failed to meet at the gang box at the beginning
of his shift despite a meeting with the Union Steward to discuss the matter. I
note here, for the record, that I did not find Mr. Bradley to be a
particularly credible witness, as he seemed overly anxious to impress his
company supervisors.
While Complainant was under the supervision of Paul Bradley and his fourth
foreman, Wayne Sibley, he was partnered with another journeyman insulator
named Leonared A. Loftin. Loftin stated that Complainant acted like a spoiled
child. He found Complainant to be difficult to work with and asked to be
separated from him.
D. Quality Concerns
During the time that Complainant was employed by Respondent he
filed ten
quality concerns. Quality concerns at Plant Vogtle are investigated and
reviewed by the manager of the Quality Concern Program, Lee Glenn, and his
staff. Mr. Glenn and his staff are employed by Georgia Power Company and have
no relationship with Respondent. In cases where the concerns are not submitted anonymously the
[Page 5]
investigation results are reported to the submitter. If the submitter then
feels that the concern was not adequately addressed further investigation is
carried out. Mr. Glenn testified about the results of the quality concerns
filed by Complainant
1. Complainant's first quality concern was filed on April 16, 1986. It
dealt with the placement of mud between joints on the pipeline in the turbine
buidling. After investigation the concern was unsubstantiated.
2. The second concern was filed on April 17, 1966. This was a two-fold
concern. First, it stated that another employee was concerned about being
dismissed for having submitted his own concerns. (T. 192) The second part of
this concern dealt with support hands being located too close together. These
claim were unsubstantiated. (T. 193)
3. The third concern was filed April 24, 1986. Once again, this was a
dual concern. It dealt with fiberglass insulation on a particular pipeline and
a certain type of tape used in the insulation process not meeting proper
standards. The first part of the concern was not substantiated. The concern
regarding the tape was valid and the work was redone. (T. 194)
4. On April 29, 1986 a fourth concern was submitted regarding a
question as to whether a particular line had been adequately cleaned prior to
the installation of heat tracing. The concern could not be substantiated.
(T. 194, 195)
5. The next concern was filed on May 9, 1986. It dealt with possible
chlorine contamination of stainless steel pipe caused by a particular tape
that was being used by electricians. That concern was still under
investigation at the time of hearing, although Mr. Glenn did testify that a
problem was found with some of the tape. (T. 195)
6. The sixth concern, filed on May 14, 1986, had to do with a pipeline
covering which complainant thought was oxidizing at supervision's
instructions. Mr. Glenn could not substantiate the claim. (T. 195, 196)
7. The next concern was filed May 22, 1986. The first issue on this
concern was that Complainant's Business Agent had asked him to leave the
project, alleging that Complainant was a troublemaker. Mr. Glenn's staff never
investigated this part of the concern because Complainant requested that they
not pursue the issue. He wanted to follow up on the incident through his
union. The second issue alleged that in a certain area Complainant had found
oil on the insulation. Although no oil was found, Mr. Glenn testified that the
investigation did reveal that quite possibly the insulation had been repaired
[Page 6]
between the time the concern was filed and the date of the investigation. The
last issue on this concern dealt with the bands which held the insulation in
place. This part of the concern was substantiated. T. 196, 197)
8. The eighth concern was filed on June 13, 1986. Here Complainant
alleged that because fiber-glass pads which had been installed were not
properly covered they had been damaged. Mr. Glenn's investigation revealed
that such pads had, in fact, been damaged due to failure to properly cover
them. (T. 197)
9. The ninth concern was filed on June 13, 1986 and alleged that two
of
Complainant's co-workers had been fired in retaliation for Complainant having
filed prior quality concerns. This concern was unsubstantiated.
10. The last quality concern was submitted on June 30, it dealt with
Complainant 's transfer to the "B" shift and his being subject to reduction in
force. That investigation revealed that Complainant was a legitimate candidate
for a lay-off. (T 198).
E. Denial of Overtime, Transfer to "B" Shift, and Reduction of Force
The record establishes that Respondent has a "40-hour
Rule" under which
any employee who fails to work 40 hours of straight time during a week may not
work overtime the following weekend. In addition, any employee who arrives
late for his shift or who does not work eight hours of straight time on a
particular day is not eligible for overtime that same day. Exceptions to the
Rule are made for those employees who call in with a justifiable excuse for
their lateness. (T. 264) Union job steward, Kurt Drescher, "was catching a lot
of heat from other union men about this rule that wasn't being enforced
correctly." It was Drescher's responsibility as Union Steward to ensure that
the rule was enforced. (T. 268, 264) (Brief of Respondent 8).
The record shows that Complainant was late for work 17 times during
his
employment with Respondent. On Friday June 20, 1986, Drescher saw Complainant
and another worker, A. E. Walling, arrive late to work. Complainant
nevertheless proceeded to work overtime that day without any apparent
repercussions. The next day, Saturday, Drescher, saw that both Complainant and
Walling were at work, doing overtime. (T. 265) Drescher checked with foreman
Sibley, who stated that he did not realize that these men had arrived for work
late on the preceding day. Upon further investigation Drescher discovered that
Walling had a valid excuse for being late while Complainant did not. Drescher
sent Complainant home, thereby denying him his weekend overtime. (T. 266).
[Page 7]
Complainant testified that other men were also late during that week but were
not penalized. He stated that although the "40-Hour Rule" was the official
policy, it was not the policy which was practiced on a day-to-day basis.
When Drescher sent Complainant home he also told him to begin
reporting
for work on the "B" shift as of the following Monday. At this time there was a
list of men waiting to be transferred to the "B" shift. Several men were ahead
of Complainant. Drescher pushed Complainant to the head of the list because he
had received complaints about him. Drescher testified that Complainant was
frequently late and that he thought a 5:30 p.m. start time would make it
easier for Complainant to be on time for work. (T. 267) Drescher knew that
Complainant had requested "B" shift duties. (T. 267)
On June 24, 1986, Petitioner's second day on "B" shift, Bill
Lamkin,
Mechanical Section Supervisor for Georgia Power on "B" shift, received a
complaint that "no one was working" in BMI shaft, which was the area where Dan
Emory was assigned. (T. 277) Lamkin confirmed the report and contacted Bart
Collins. (T. 277) Collins carried the job steward, general foreman, Tom Spell, and foreman Tom
Corley to the room. (T. 289) The steward reported that no one in the room,
including Petitioner, was working, but requested that Collins allow him to
handle the situation. (T. 289)
The following night, June 25, 1986, the lights went out, so Collins
instructed the general foreman to pull the workers out of the building. (T.
291) James Morris told his foreman, Tom Corley, that he was going to wait in a
particular storage shed with Petitioner and another worker. (T. 315) There was
only one bucket in the shed to sit on so Complainant lay down. The Vogtle
Project has a rule prohibiting employees from lying down on the job. Corley
reported to Collins that he had found a man lying down who may have been
sleeping. (T. 292, 299) Collins, not knowing the identity of the man, told
Corley to fire him if he was lying down. (T. 292) Corley went to the job
steward, who suggested that the man lying down be laid off rather than fired.
That night, Complainant was included in a reduction of force directed
by
Georgia Power Company. Four other men in Complainant's crew were also among
those laid off during this reduction of force. General Foreman Spell put
together the list of the five men in Complainant's crew who were to be laid
off. He approved the inclusion of Complainant on this list. It was his opinion
that in the short period of time during which Complainant was on the "B"
shift, Complainant had been unproductive. He had observed Complainant
wandering out of his work area and staring into space. (T. 308, 311) Bart
[Page 8]
Collins testified that he was not surprised to see Complainant's name on the
reduction of force list because he had received several prior complaints about
Complainant's work.
The record show that at the time Curt Drescher transferred the
Complainant to the "B" shift he did not know about the lay-off. (T. 268)
Bart Collins did not find out the reduction in force until the day before it
went into effect. (T. 290) Eventually between 80-90 people were included in
the reduction of force. (T. 164)
CONCLUSIONS OF LAW
A. Burdens and Standards of Proof
The principle to be applied in retaliatory action cases arising under 42
U.S.C. § 5851 and 29 C.F.R. Part 24 have been set forth by the Secretary of
Labor in Dartney v. Zack Company of Chicago , 82 ERA-2 (April 25, 1983). In
that case the Secretary noted that two Supreme cases, taken together, comprise
the framework for analyzing evidence and evaluating burdens of production and
proof in § 5851 cases. The first case, Texas Department of Community Affairs
v. Burdine , 450 U.S. 248 (1981), which arose under Title VII of the Civil
Rights Act of 1964, established that it is the Plaintiff who must bear the
burden of persuasion that intentional discrimination has occurred. The second
case, Mt. Healthy City School District Board of Education v. Doyle , 429 U.S.
274 (1977), was a retaliatory adverse action case which arose under the
Constitution. That case, which the Secretary found to be "closely analogous"
to cases under 29 C.F.R. Part 29, set forth the standard for the burden of
proof which shifts to the defendant once the Plaintiff has carried his burden
of persuasion.
Under Burdine , the employee must initially present a
prima facie case consisting of a showing that he engaged in
protected conduct, that the employer was aware of that
conduct and that the employer took some adverse action against
him. In addition, as part of his prima facie case, "the
plaintiff must present evidence sufficient to raise the
inference that ... protected activity was the likely reason
for the adverse action." Cohen v. Fred Mayer, Inc. , 686
F. 2d 793 (9th Cir. 1982) (applying Burdine to a retaliatory
discharge claim under section 704 (a) of Title VII). If the
employee establishes a prima facie case, the employer has the
burden of producing evidence to rebut the presumption of
disparate treatment by presenting evidence that the alleged
disparate treatment was motivated by legitimate, nondiscriminatory
[Page 9]
reasons. Significantly, the employer bears only a
burden of producing evidence at this point; the ultimate burden
of persuasion of the existence of intentional discrimination
rests with the employee. Burdine , supra, 450 U.S. 248,
254-255. If the employer successfully rebuts the employee's
prima facie case, the employee still has "the opportunity to
demonstrate that the proffered reason was not the true reason
for the employment decision.... [The employee] may succeed in
this either directly by persuading the court that a
discriminatory reason more likely motivated the employer or
indirectly by showing that the employer's proffered explanation
is unworthy of credence." Id . at 256 (citation omitted.) The trier
of fact may then conclude that the employer's proffered reason
for its conduct is a pretext and rule that the employee has
proved actionable retaliation for protected activity.
Conversely, the trier of fact may conclude that the employer was not
motivated, in whole or in part, by the employee's protected
conduct and rule that the employee has failed to established
his case by a preponderance of the evidence. Id . at 254-265.
Finally, the trier of fact may decide that the employer was
motivated by both prohibited and legitimate reasons, i.e.,
that the employer had dual motive.
Dartney at 7-9.
B. Protected Activity
It is well settled that an employee may not seek redress under §
5851 unless he has been discriminated against for engaging in activity which is
protected by the Act. In the case at hand, Complainant asserts that the
conduct which allegedly caused his denial of overtime and inclusion in the
reduction of force was his submission of a series of internal quality
concerns. Respondent argues that Complainant is unable to establish his prima
facie case because internal quality concerns do not constitute protected
activity.
Several cases have addressed this issue. In Mackowiak v. University
Nuclear Systems, Inc. , 735 F.2d 1159 (9th Cir. 1984) the Ninth Circuit held
that the filing of internal safety and quality control complaints by quality
control inspectors is protected by § 5851. In so holding the Court analogized
the "Whistleblower" provision of the Energy Reorganization Act to the
comparable provision in the Mine Health and Safety Act. The Court noted that
both Acts "share a broad, remedial purpose of protecting workers from
retalization based on their concerns for safety and quality." Mackowiak , 735
[Page 10]
F.2d at 1163.
Six months later the Fifth Circuit decided the same issue differently
creating a conflict among the Circuits. In Brown & Root, Inc. v. Donovan , 797
F. 2d 1029 (5th Cir. 1984), the Fifth Circuit held that the filing of
intracorporate quality control reports is not protected activity within the
meaning of § 5851. This decision was predicated on three considerations.
First, the Court found that the language of the provision2 did not
encompass such reports. Second, the Legislative history of the Act did not
support an extension of the meaning of § 5851 to include internal reports.
Third, the structure of the Act as a whole indicated that § 5851 was designed
to protect only those "whistle blowers" who provide information to govermental
entities, not to the employer itself.
In December, 1985 the Tenth Circuit, in Kansas Gas and Electric
Co. v.
Brock , 780 F.2d 1505 (10th Cir. 1965) (cert. denied 106 S. Ct 3311 (1986)),
"specifically rejected the Fifth Circuit's ruling in Brown & Root and instead
aligned itself with [the] earlier ruling of the Ninth Circuit that internal complaints are covered
[by the Act]." Kansas Gas and Electric Co. v. Brock , 106 S.Ct. 3311, 3312
(1986)(White, J. dissenting). The Court found that "although the statutory
language does not unambiguously include such cases, the statute's purpose and
its Legislative history indicate that its extension to purely internal
complaints is appropriate." Id .
Although the United States Supreme Court has refused to resolve this
conflict in the Circuits, the Secretary has made it clear that the Department
Of Labor adopts the finding that reporting safety and quality concerns
internally to an employer constitutes protected activity. Priest v. Baldwin
Assocs . 84-ERA-30 (June 11, 1986). For these reasons I find that Complainant's
filing of internal quality concerns does constitute protected activity within
the definition of the Act.
C. Protected Employee
Respondent also argues, as a preliminary issue, that Complainant is not
a
protected employee under the Act. In support of this assertion Respondent
points to Justice White's dissenting opinion to the Supreme Court denial of
certicrari in Kansas Gas as "Interpret[ing] the decision below as holding that
§ 5851 'prohibits an employer from terminating a quality control inspector
because the inspector has filed internal safety complaints.' Emphasis added.]"
Brief of Respondent at 17.
[Page 11]
Respondent also argues that the Fifth Circuit in Brown & Root
pointed out
Mackowiak's reliance on the status of the complaining employee as a quality
control Inspector. Brown v. Root , 747 F.2d at 1036. Brown v. Root noted that
one Mackowiak rationale for extending § 5851 protection to internal filings
was the fact that the employee was a quality control inspector. Id . The
protections of § 5851 were extended to these particular employees because of
their duty to enforce NRC regulations. Mackowiak , 735 F.2d at 1163.
Respondent asserts that because Complainant was not a quality control
inspector there was no connection with the NRC regulations which the Act seeks
to uphold. Since it was not Complainant's duty to enforce NRC regulations he
is not a protected employee. I disagree with this rational. It is true that
Complainant was not a quality control inspector. Where, however, internal
complaints relate to the safety of those in and around the nuclear facility
involved, they should be protected. Complainant was involved in the insulation
of piping within the nuclear plant. Dennis Harris, Respondent's own Project
Manager at Plant Vogtle stated that insulation is a safety measure. Although
"the lines are not that hot ... they're in areas where it could be dangerous
to personnel and we ... insulate for personnel protection." (T. 158) I find,
therefore, that in order to further the concerns of the Act, Complainant will
be considered a protected employee.
D. Retaliatory Actions
It having been established that Complainant is indeed a protected
employee who engaged in protected activity, it must be further decided
whether Complainant has established the other elements of his prima facie case
of discrimination. First, the employer must have been aware of the conduct in
which Complainant was engaged. There has been no dispute that Respondent was aware of
Complainant's quality concerns. Second, the employer must have taken some adverse action
against the employee. Again, there has been no dispute that Complainant was denied
overtime and was included in a reduction in force. Lastly, Complainant "must
present evidence sufficient to raise the inference that ... protected activity
was the likely reason for the adverse action." Cohen v. Fred Mayer, Inc. , 686
F.2d at 796.
In the instant case Complainant first asserts that he was
discriminatorily denied overtime. I find that Complainant was indeed denied
overtime. This denial was not, however, discriminatory in nature. Complainant
testified that Dick Bland, Bill Deloach, and Randy Taylor were also late
at some point during the week in question but that they were not denied
overtime. None of these men, however, were members of Complainant's crew.
The one worker who was allowed to work overtime after having been late had
[Page 12]
presented a valid excuse to the Respondent. Complainant did not have an
excuse, and indeed, had already benefited from overtime that week which he
did not deserve.
As to Complainant's inclusion in the reduction of force, I find that no
inference that this action by Respondent was caused by Complainant's filing of
quality concerns. The record has established that both Respondent and at least
one of Complainant's partners found Complainant to be a difficult employee. He
was described as "lackadiaisical" and was often found not working. Under such
circumstances it is a difficult burden to make a prima facie showing that you
alone, among 80-90 men who were included in a single reduction of force, were
discriminated against. I find that Complainant has not met this burden.
CONCLUSION
For the foregoing reasons, I conclude that the Complainant has failed to
make out a prima facie case of discrimination under § 5851. It is hereby
ORDERED that the complaint be DENIED.
ROBERT J. SHEA
Administrative Law Judge
RJS:ga
[ENDNOTES]
1 The following abbreviations are
used: Co. Ex. - Company Exhibit;
T-Transcript; Comp. Ex. - Complainant's Exhibit.
2 Section 5851(a), provides:
No employee, including a Commission licensee, an application for a
Commission license, or a contractor or a subcontractor of a Commission
licensee or applicant, may discharge any employee or otherwise
discriminate against any employee with respect to his compensation,
terms, conditions, or privileges of employment because the employee
(or any person acting pursuant to a request of the employee) -
1. commenced, caused to be commenced, or is about to commence
or cause to be commenced a proceeding under this chapter or the
Atomic Energy Act of 1954, as amended [42 U.S.C.A. § 2011 et seq],
or a proceeding for the administration or enforcement of any
requirement imposed under this chapter or the Atomic Energy Act of
1954, as amended;
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. § 2011 et seq.].