Case No. 82-ERA-11

In the Matter of

THOMAS J. HICK,
   Complainant

    v.

WESTERN CONCRETE STRUCTURES, INC.,
   Employer/Respondent

    Administrative Law Judge Alfred Lindeman submitted a recommended decision and order to me in this case arising under the employee protection provision of the Energy Reorganization Act of 1974, as amended (42 USC 5851) (ERA or the Act). A hearing was held on April 5 and 6, 1983 on a complaint filed by Thomas J. Hick that he had been fired by respondent, Western Concrete Structures, Inc., because of certain protected activities.

    The ALJ recommended that the respondent be found not to have violated the ERA. The ALJ found that the respondent had fired complainant not because of activities protected under the Act, but rather, because complainant's performance did not meet the standards of his new supervisor.

    Western Concrete Structures, Inc. (Western or the employer) is a subcontractor to the Bechtel Power Corporation at the Palo Verde Nuclear Power Project. Western provided "post-tensioning" -- the stressing of cables in concrete after a "pour." It hired types of employees at the job site: production personnel; and quality control inspectors and supervisors. The quality control personnel were to assure that Western complied with its internal quality control manual. The manual in turn was to satisfy the quality control requirements of the contractor, Bechtel; the Arizona Public Service Agency, the authorities responsible for overseeing compliance with nuclear reactor installations; and the Nuclear Regulatory Commission.

    Complainant was a quality control inspector. After being promoted to field quality control supervisor, he supervised two other quality control inspectors. Inspectors observed the calibration of gauges, the greasing of tendons, and other aspects of construction. Much of the work involved documentation of the construction procedures.

    Complainant had been performing adequately under the standards of quality assurance manager Robert Jacobson. But once Jacobson resigned, Allan Stubbs, Western's president, took over his responsibilities and made periodic "on-site" visits to complainant's job site. During these visits Stubbs became aware of alleged inadequate quality control procedures on the part of complainant. Stubbs testified, for example, that complainant was not writing reports correctly; was not reporting facts; and was drawing conclusions -- really the job of the engineers (tr. 201-202).

    Complainant argued that he was fired because of the protected activity of reporting to the Arizona Public Service Agency (APS) problems he was having with production superintendent Ken Guffey. He testified that Guffey told him that he (Guffey) was "production- oriented" and was going "to cut corners any way he could." He said Guffey violated prescribed procedures by, for example, using the wrong gauge to measure the stress of tendons, not properly greasing them, or installing them out of sequence.

    The only evidence that tends to support complainant's claim that he was fired because of his protected activities is that Guffey knew in January or February 1982 of complainant's contacts with APS before he was fired in March 1982. While knowledge and the termination here are not immediately connected in time,

they are close. The remainder of the evidence points to the conclusion that the complainant's termination was not related to his contacts with APS.

    The record bears no evidence of the employer discouraging complainant from "working closely" with APS. No testimony was elicited from APS representatives Dennis Fowler and Ray Douglas Forrester that complainant was discouraged from contacting them. Moreover, an absence of bad faith is shown in that Guffey -- in spite of a history of "butting heads" with complainant -- recommended him for a position under his replacement. (tr. 77) (Stubbs, however, thought it unwise and selected another person for this job.)

    I credit the testimony of Pamela K. Donigan, complainant's successor. Her uncontroverted testimony was that she was given no instructions or advice on how to deal with Guffey. In other words, she was free to work closely with APS, if necessary, just as complainant had done.

    The evidence clearly discloses that Stubbs wanted stricter quality control at the Palo Verde project, and felt that complainant -- due largely to his apparent inadequate training under former supervisor Jacobson -- could not meet those standards.

    I agree fully with the ALJ's finding that complainant was not discharged because of his protected activities -- his contacts with APS. Complainant failed to present prima facie case of discrimination, i.e., that there was a causal link between his protected activity and his termination. As such, the burden did not shift to the employer to articulate a legitimate, non- discriminatory reason for the firing, Texas Dept. of Community Affairs v. Burdine, 450 U.S. 243 (1981).

    Therefore, it is ORDERED, that the complaint in this matter be denied.

       RAYMOND J. DONOVAN
       Secretary of Labor

Dated: JUN 5 1984
Washington, D.C.