Pensyl v. Catalytic, Inc., 83-ERA-2 (Sec'y Jan. 13, 1984)

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Pensyl v. Catalytic, Inc., 83-ERA-2 (Sec'y Jan. 13, 1984)

U.S. DEPARTMENT OF LABOR

SECRETARY OF LABOR
WASHINGTON, D.C.

83-ERA-2

WILLIAM D. PENSYL,
Complainant,

CATALYTIC, INC.,
Respondent.

DECISION AND ORDER

This case presents an important question of the scope of the protection afforded to employees by section 5851 of the Energy Reorganization Act of 1974, as amended, 42 U.S.C. 5851 (the ERA or the Act). Simply put, in what circumstances, if any, does an employee have the right to refuse to work and be protected from discharge or other disciplinary action? I have concluded, after careful examination of the legislative history of this and other closely related statutes, as well as case law interpreting those acts, that in certain specific circumstances refusal to work is a protected activity under the Act. According, I will remand this case for a carefully circumscribed hearing as described below.

BACKGROUND

This case is before me on a motion to dismiss by the respondent

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Catalytic, Inc. (Catalytic) which the ALJ recommended be granted. Certain critical facts surrounding the refusal of complainant, William D. Pensyl (Pensyl) to work have not been established by oral testimony under oath and tested by cross-examination. (See discussion below.) But other facts, sufficient to present clearly the issue raised by the motion to dismiss seem undisputed. Pensyl was employed by Catalytic on June 3, 1982. Catalytic was a subcontractor¹ working on the cleanup of radioactive contamination of the Three Mile Island nuclear power plant Unit 2 caused by the accident on March 28, 1979. At the time relevant to this complaint, Pensyl's duties among other things were to assist workers coming out of the reactor building containment who had done cleanup work there to undress out of special protective clothing. Undressing was done in a Contamination Control Corridor built for that purpose. When Pensyl first performed this work sometime around the beginning of August 1982, in addition to protective clothing he wore a respirator, as did other workers performing the same duties at other times.

The Contamination Control Corridor was designed with a ventilation system to draw air down and away from the workers and through high efficiency filters. After having monitored radiation in the Contamination Control Corridor since April 1982, Catalytic determined in August 1982 that respirators were no longer required because the physical design of the Corridor and the operation of the ventilation system had reduced airborne radioactivity well below Nuclear Regulatory Commission maximum exposure limits.

Pensyl and other workers performing undressing duties were informed on August 13, 1982 that they no longer would be permitted to wear respirators while working in the Contamination Control Corridor. The workers, about 25 men, objected to working without respirators and a few days later, August 16, Pensyl circulated a petition which was signed by all the affected workers requesting that they be given the individual option of wearing respirators. Pensyl also told the Project Ombudsman of his concerns about respirator use. On August 18, the next day of work scheduled in the Contamination Control Corridor, Pensyl told his supervisors he would not work without a respirator. Pensyl met with his supervisors and their superiors and explained the reasons for his concern about working without a respirator. They decided that, temporarily, employees would have the option of using respirators.

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Between August 13 and August 30, 1982 these employees were counseled by GPU Nuclear Corporation and representatives of the Nuclear Regulatory Commission on the reasons for eliminating respirator use. The NRC had conducted an investigation into the changed respirator requirement around August 13. (For the reasons discussed below it is these events surrounding the decision to eliminate respirator use, particularly the findings of management and the NRC on radiation levels and the manner in which employee concerns were responded to, which should be brought out fully at the hearing on remand.) On August 30, 1983, employees scheduled to work in the Contamination Control Corridor, including Pensyl, were told they could not use respirators. When Pensyl refused to work without a respirator, he was fired.

The Administrative Law Judge recommended dismissal of Pensyl's complaint because Pensyl did not allege that he commenced, caused or was involved in a proceeding under the Act, and the validity of Pensyl's refusal to work is not a subject which can be tried under this statute."

DISCUSSION

Employees may not be discharged or otherwise discriminated against under the ERA for commencing or causing a proceeding to be commenced, testifying, assisting or participating in a proceeding under the Act, or assisting or participating in any other action to carry out the purposes of the Act. 42 U.S.C. 5851. The legislative history of this employee protection provision makes it clear that it was drafted with the Coal Mine Health and Safety Act, among other laws, as a model. When section 5851 was added to the Energy Reorganization Act in 1978, the Senate Committee Report on the employee protection provision which became law summarized it saying "This amendment is substantially identical to provisions in the Clean Air Act and the Federal Water Pollution Control Act . . . such provisions were patterned after the [Labor Management Relations Act, 1947] and a similar provision in [the Coal Mine Health and Safety Act]." S. Rep. No. 95-848, May 15, 1978, reprinted in 1978 U.S. Code Congressional and Administrative News, p. 7303. Thus, section 5851 and the employee protection provision of the Federal Mine Safety and Health Act (FMSHA) (a successor statute to the Coal Mine Health and Safety Act) are in pari materia and it is entirely appropriate to look to the legislative history and case law under the mine safety statutes for guidance in interpreting the ERA. Rutherford Food Co. v. McComb, 331 U.S. 722 (1975).

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The same Congress which added section 5851 to the ERA had just amended the Coal Mine Health and Safety Act the previous year including its major provisions in a comprehensive law on safety in the nation's mines, the Federal Mine Safety and Health Act.² P.L. 95-164, 91 Stat. 1290. Congress discussed in some detail in the legislative history of that act its intended scope of the employee protection provision. Senate Report No. 95- 181 said explicitly, "The Committee intends that the scope of the protected activities be broadly interpreted by the Secretary [of Labor], and intends it to include not only the filing of complaints seeking inspection . . . or the participation in mine inspections . . . . but also the refusal to work in conditions which are believed to be unsafe or unhealthful and the refusal to comply with orders which are violative of the Act or [regulations] . . . ." S. Rep. No. 95-181, May 16, 1977 (95th Cong., 2nd. Sess.), reprinted in 1977 U.S. Code Cong. and Admin. News, P. 3401, 3435. Later in the discussion of the employee protection provision, the committee report reiterated its view that the section gave miners the right to refuse to work "in conditions they believe to be unsafe or unhealthful," and gave express approval to cases under the Coal Mine Health and Safety Act in which courts had held that refusal to work in certain circumstances is a protected activity under that Act. Id. at 1436. See Phillips v. Interior Board of Mine Operations Appeals, 500 F.2d 772 (D.C. Cir. 1974) and Munsey v. Morton, 507 F.2d 1202, 1209, n. 58 (D.C. Cir. 1974). Cases construing the employee protection provision of the Federal Mine Safety and Health Act have also held that, when asserted in proper circumstances, refusal to work is a protected activity. Consolidated Coal Company v. Marshall, 663 F.2d 1211 (3d Cir. 1981);³ Robinette v. United Castle Coal Co., 2 MSHC 1213 (1981); Bennett v. Kaiser Aluminum and Chemical Corp., 2 MSHC 1424 (1981); Dunmire and Estele v. Northern Coal Co., 2 MSHC 1585 (1982).

A workable, balanced rule, equally applicable to the ERA, can be distilled from this legislative history and case law. A worker has a right to refuse to work when he has a good faith, reasonable belief that working conditions are unsafe or unhealthful. Whether the belief is reasonable depends on the knowledge available to a reasonable man in the circumstances with the employee's training and experience. Refusal to work is protected

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if "the miner reasonably believed that he confronted a threat to his safety or health." Consolidated Coal Co. v. Marshall, supra, 663 F.2d at 1219; Robinette v. United Castle Coal Co., supra; Dunmire and Estle v. Northern Coal Co., supra. Refusal to work loses its protection after the perceived hazard has been investigated by responsible management officials and government inspectors,, if appropriate, and, if found safe, adequately explained to the employee. Bennett v. Kaiser Aluminum and Chemical Corp., supra.

In the context of this case, it seems clear that on August 13, 1982 when the new procedure of working without a respirator was first announced, Pensyl would have been protected for refusing to work in the Contamination Control Corridor. All work there had, until then, been performed with respirators. The explanation for the change in procedures given that day seems to have been hurried and somewhat superficial. In any event, two weeks went by during which workers had the option of wearing respirators.

This is the period of time which must be the focus of the hearing on remand. What was the nature of the investigation done by the Nuclear Regulatory Commission? What were the results and how were they communicated to the employees? What was the nature of the counseling of employees Catalytic says was done during this period? How were employee concerns responded to, e.g., the amount of dust and dirt on cleanup workers clothing, the reason the cleanup workers continued to wear their respirators during undressing. If Catalytic was in full compliance with NRC regulations, and that fact as well as the reasons for the change in procedures were adequately explained to employees, refusal to work lost its protection under the ERA at that point.

It is important to make clear those matters which the remand hearing may not cover. Expert testimony on the efficacy of procedures and standards established in NRC regulations to protect workers from airborne radioactive materials is inappropriate in a hearing under section 5851 and may not be introduced. Such testimony should be directed to the Nuclear Regulatory Commission, the agency with the expertise and statutory responsibility for establishing standards in this area, not the Secretary of Labor. Moreover, if NRC regulations permit regulated companies to achieve compliance by several different means, management has the prerogative to choose the means it considers appropriate.

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Employees have no protection under section 5851 for refusing to work simply because they believe another method, technique, procedure or equipment would be better or more effective. Thus, Pensyl may not rely on the so-called ALARA provision of the NRC Standards for Protection Against Radiation, 10 CFR 20.1. (" . . . [covered persons] . . . should, in addition to complying with the requirements set forth in this part, make every reasonable effort to maintain radiation exposures . . . as low as is reasonably achievable [ALARA].") Whatever degree of obligation imposed by the language of that regulation on Catalytic, it clearly does not subordinate management judgment to the beliefs of individual employees on the most effective means of radiation exposure protection. Even if Pensyl knew of this regulation at the time, it would not give an added degree of protection to his refusal to work.

After a hearing on the merits, however, the ALJ should determine whether the usual elements of a retaliatory adverse action case exist here. Assuming, as discussed above, Catalytic proves the refusal to work had lost its protection, the ALJ should weigh the evidence to determine whether Catalytic's stated reason for Pensyl's discharge was a pretext, it being based in fact on his prior activities raising safety questions, e.g., circulating the petition, speaking to the ombudsman. If he does not find it was pretextual, the ALJ should then determine whether Catalytic had mixed motives, thus shifting the burden to Catalytic to show Pensyl would have been fired for the unprotected work refusal alone. See generally Dean Dartey v. Zack Company of Chicago, 82-ERA-2 (April 25, 1983). Evidence on the treatment of other workers who may have refused assignments would be relevant here.

Therefore, this case is remanded to the office of Administrative Law Judges for further proceedings in accordance with this Decision.

RAYMOND J. DONOVAN
Secretary of Labor

Dated: January 13, 1984
Washington, D.C.

[ENDNOTES]

¹ It is difficult to determine from the pleadings and briefs in the record whether Catalytic was a subcontractor of Bechtel, Inc. or of GPU Nuclear Corporation. The owner of the power plant was General Public Utilities, a successor of Metropolitan Edison Company.

² The rule of in pari materia is particularly applicable where the same words have been used by the same legislative body on the same subject at the same time. Erlenbaugh v. U.S., 409 U.S. 239 (1972).

³ In this case, the Third Circuit reversed an order of the Federal Mine Safety and Health Review Commission in favor of the complaining employee on the grounds that he went beyond the protected act of refusing to work in what he believed was an unsafe condition by shutting down a machine making it impossible for work on that shift to continue. In a long footnote, however, the court made it clear that it concurred in the Commission's conclusion that there is a statutory right to refuse to work even though it is not explicit. 663 F.2d 1211, 1216-17, n.6.