Case No. 84-ERA-30

Jack D. Priest,
    Complainant

    v.

Baldwin Associates,
    Respondent

    This case arises under the employee protection provisions of the Energy Reorganization Act (ERA), 42 U.S.C.§ 5851 (1982). The case is before me on the recommended decision of the Administrative Law Judge (ALJ).

    Jack Priest was fired from his job as an electrician with Baldwin Associates (Baldwin), after reporting an office break-in in and missing safety-related documentation, for being absent from his work area for approximately 20-30 minutes. Because I disagree with the conclusion of the ALJ and find the stated reason for the discharge pretextual, and that Baldwin Associates violated the employee protection provisions of the ERA, I will order Baldwin to reinstate Mr. Priest and will remand this case to the ALJ for calculation of back pay due to Mr. Priest.

    The facts in this case are generally well summarized in the ALJ's recommended decision, and I adopt the following findings of fact in the ALJ's recommended decision:

The nuclear power plant involved in this proceeding is the Clinton Power Station being constructed by Baldwin for the Illinois Power Company.

On March 24, 1984, and for some time prior thereto, Jack D. Priest was employed as an electrical foreman by Baldwin. Mr. Priest shared an office on the 828 level of the control building with two other foremen, Bob McGee and Ken Tilford, and with their general foreman, Eugene O'Dell, all of whom testified at the hearing.

On March 24, 1984, a Saturday, weekend work was scheduled at the plant. In anticipation of the work, Keith Kammerzind, the general electrical superintendent, had directed the superintendents to make their travelers available to the weekend work crew. 2/ (T.275) [The transcript of the hearing of July 26, 1984 is referred to as T.] However, on March 24, 1984, certain travelers could not be located. An inspection of the log book showed that some of the missing travelers had been logged out to superintendent Harry Kracht. Mr. Kammerzind called Mr. Kracht, who stated that the missing travelers were in Complainant's office in a file cabinet. (T.275-276). Mr. Kammerzind then instructed superintendent Rich Hilliard to retrieve the travelers from the file cabinet. When Mr. Hilliard reported back that the file cabinet was locked, Mr. Kammerzind authorized him to break into the desks in the office in search of the filing cabinet keys and to break into the filing cabinet, if necessary. (T.277) The break-in was accomplished under Mr. Hilliard's supervision and the travelers were found.

On March 26, 1984, when Complainant, Mr. Tilford and Mr. O'Dell arrived at their office, they discovered that it bad been entered over the weekend. (T.39,88) Mr. McGee arrived a short time later.

They inventoried the office to determine if anything was missing (T.42,90) They found a note from Mr. Hilliard stating that money that was in Mr. Tilford's desk could be found in another desk in the office. Mr. Tilford's money was recovered?

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2/ A traveler a control document which contains the specifications of the items under construction, the work performed and the materials used to construct the items. Additionally, the traveler is used by quality control inspectors to verify that construction work was done according to specifications.

but a set of tools he had in the office were [sic] missing. Three travelers assigned to Mr. McGee were also found to be missing.

Since none of the men knew that the break-in had been authorized by Mr. Kammerzind, Mr. O'Dell called his immediate supervisor, Mr. Kracht, to report the incident. Mr. Kracht told Mr. O'Dell that he had been called over the weekend by plant personnel in search of the keys. (T.149) Shortly after Mr. O'Dell's call to Mr. Kracht, Tim Yoch told Mr. O'Dell and Complainant that he was present during the break-in and identified some of the other employees involved including Rich Hilliard. (T.120,151-152,163) During a subsequent conversation, Mr. Kracht told them that he had authorized one of the superintendents to take the travelers. (T.158) As a result of these conversations, Complainant knew that the break-in had been authorized to gain access to the missing travelers. (T.171, 208-2091 Complainant called company security to report the break-in.

That same morning, one of Mr. McGee's workers reported that material installed on one of the hangers, during the weekend, was not the material ordered for the hanger. The ordered material was still locked up in a gang box. Complainant and his three co-workers then became concerned with the possible

falsification of safety related material. (T.159) They examined the material installed on the hanger and found that the numbers stamped thereon coincided with the original numbers. However, knowing that the fabrication shop had not received an order for duplicate material for this hanger, they were suspicious as to whether the material was correct for the job (T.159-160)

On the same day, Complainant called his union representatives, Mr. Brilley and Mr. Bopp, and told them of the break-in and his concern for the integrity of the work performed on the hanger during the weekend, requesting that they obtain a release from Baldwin to absolve Complainant and his three co-workers of responsibility for the weekend work. (T.160,161,171)

On March 27, 1984, after security had not responded, Complainant called security again. Complainant also called Messers. Bopp and Brilley. He was advised by Mr. Brilley that he and his three co-workers would not be fired because of the break-in. A security officer arrived later that morning and took a report of the break-in. A second report was taken by security some three or four weeks later. (T.177-179) Knowing what had happened on March 24, 1984, but not having received what Complainant considered a full explanation from a superintendent or other employee of Baldwin, Complainant, after discussion with his three co-workers, called Illinois Power Company and reported the break-in, missing travelers and his concerns about safety of construction and traceability of the construction materials used during that weekend. (T.180; Res. Exb. 1) An employee of IPC met with Complainant and Mr. O'Dell on April 10, 1984 to discuss the matter. (T.181)

Also, on April 10, 1984, Mr. Kammerzind reorganized personnel in the plant's electrical department. He transferred Harry Kracht, the supervisor of Complainant and his three co-workers, and replaced Mr. Kracht with Jack Beach. Mr. Beach was now in charge of electrical construction for the

entire control building. As part of the reorganization, Mr. Beach transferred ten electricians from Mr. McGees' [sic] and Mr. Tilford's crews. This left no need for their supervisory activities and they were demoted to staff electricians. 3/ (T.331, 320-323)

On April 12, 1984, Mr. Beach, believing that foreman [sic] should be near the men they supervise, directed Mr. O'Dell to have Complainant move his desk from the office in which it was located to a different level of the building. (T.333,362-364) Mr. Priest was unwilling to move his desk and requested that he be relieved of his supervisory duties, which Mr. Beach did that same day. (T.334-335) Mr. Beach also relieved Mr. O'Dell of his supervisory duties later in the day. (T.339, 374-375)

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3/ Mr. McGee was reassigned supervisory duties a few weeks later. (T.341) 4/ Complainant was ultimately replaced as foreman by Steve Lewis. Mr. Lewis' desk was in the office on the 828 level of the control buiding during a brief training period, moved to the floor and then returned to the office due to an increased work load. (T.341-343)

On April 13, 1984, Mr. Beach and other Baldwin management personnel first became aware that Complainant bad called IPC when Mr. Palacheck, an employee of IPC, began an investigation. (T.335 337 283)

On or about April 17, 1984, Mr. Beach laterally transferred complainant from the control building to a lighting crew supervised by Bob Fritz, at another location (T.194-.195). Mr. Beach felt the transfer was warranted because Complainant was spending a great deal of time on the telephone and talking to the other men rather than working, tensions were increasing among the men due to the personnel changes and because none of the men Complainant had

supervised would accept the foreman's job Complainant had vacated. (T.338-341, 351-355)

Complainant went over and met his new foreman, Dale Thompson, later that afternoon. Complainant then left work early, with no objection from Mr. Thompson. (T.196) Complainant requested and was given permission by Mr. Thompson to take the next three days off. (T.197) Complainant called in to work on the next day to be sure they knew he wasn't coming to work. (T.198,396)

Complainant reported to work on Monday morning, April 23, 1984. He completed a vacation request for the next 4 days and gave it to Mr. Thompson. Then, at approximately 8:10 a.m., receiving permission from Mr. Thompson to see the union steward, Complainant left his work area. After talking to the union steward briefly, Complainant returned to his work area at about 9:10 a.m. Complainant then requested permission from Mr. Thompson to leave work for the rest of the day. He wanted to discuss matters with the union representative and with personnel from IPC and then go home. Permission was granted and Complainant left work. (T.198-201; Pl. Exb. 9) That night, Complainant received a telegram stating that he had been terminated from his employment at Baldwin. (T.201) A subsequent notice of termination gave the reasons for termination as out of assigned work area, excessive absences and leaving work early. (pl.Exb. 6) [sic. The exhibits in the record are actually marked "Pl. Ex."]

Inasmuch as Complainant had permission from his foreman for his absences and for the time he left work early, the only valid reason for his termination would have been his absence from his work area on April 23, 1984. In this regard, Complainant was observed out of his work area, on elevation 762 of the control building, at about 8:10 or 8:15 a.m. talking to Dick Hyland, Perry Pickens and another unidentified Baldwin employee. (T.385, 391, 392) About 20 to 25 minutes later, Complainant was again observed in the same place engaged in conversation

with Dick Hyland. (T.386)

Mr. Robert Fritz, Complainant's superintendent, was contacted at about 8:40 a.m. on April 23, 1984 and advised that Complainant was out of his work area and interferring [sic] with the completion of work by other Baldwin employees. Mr. Fritz went to Mr. Thompson's work area. it about 9:10 a.m. Complainant returned to Mr. Thompson's area. At about 9:15 or 9:20 a.m., Mr. Fritz observed Complainant leaving the work area again and upon inquiring was informed that Complainant was leaving to visit union and IPC personnel. Mr. Fritz verified that Complainant had seen the union steward for about 10 to 15 minutes that morning, leaving at about 8:25 or 8:30 a.m. On the basis of these facts, Mr. Fritz decided that Complainant should be terminated. Complainant's employment with Baldwin was terminated that day. (T.396-405)

    In addition to these facts, I would note several additional facts not mentioned by the ALJ which I find highly significant. When Keith Kammenzind,¹ the General Superintendent of the Electrical Department, was consulted by Bob Fritz, Mr. Priest's superintendent, about firing Mr. Priest for excessive absenteeism and for being out of his work area on April 23, 1984, Mr. Kammenzind knew at that time, at a minimum, that Mr. Priest may have had permission to take the time off. (T. at 288, 295).

    In addition, there is a written statement in the record from the Assistant Business Manager of the union that as of July 20, 1984, Baldwin Associates was willing to withdraw excessive absences as a basis for the termination. Pl. Ex. 8. Mr. Kammenzind acknowledged in his testimony that Baldwin Associates agreed to delete excessive absences from the termination slip. T. at 295. Nevertheless, even at that time Baldwin would not rescind the termination.

    There was also a question whether Mr. Priest actually had permission from Dale Thompson, his immediate supervisor, to be out of his work area. Mr. Priest submitted. an affidavit from Mr. Thompson which states: "At no time, did I ever assign Jack Priest a work area or work assignment. He was also out

of my immediate area with my approval and as far as I am concerned, had not violated any company policies or rules."² Pl. Ex. 9. There is no evidence in the record that anyone from Baldwin Associates ever asked Dale Thompson specifically about when Mr. Priest was out of his work area or why he was absent for several work days before that. But Bob Fritz was talking to Dale Thompson when Mr. Priest returned to his work area the morning of April 23. T. at 400. Mr. Fritz saw them both again a few minutes later, after he had decided to deny Mr. Priest's vacation request for the rest of the week. T. at 402. Mr. Fritz also did not tell Mr. Priest at that time that his vacation request had been denied. In their testimony, both Mr. Fritz and Mr. Kammenzind seemed to view the vacation request (which they considered improper under company policy because it was for fewer than five days) as part of Mr. Priest's excessive absences. T. at 288, 402. Yet, they had complete control over it through the power to deny it, as Mr. Fritz did.

    Several witnesses for Baldwin Associates testified that their concern over Mr. Priest being out of his area was that he was talking to other workers and holding up their work. See, e.g., T. at 287, 397. James Weiblin saw Mr. Priest twice between 8:10 and 8:35 a.m. talking to Mr. Weiblin's crew members. T. at 385, 386. Mr. Priest was not in his crew, but neither time did Mr. Weiblin ask Mr. Priest where he was supposed to be or tell him to move on. Mr. Weiblin also did not reprimand his crew members for stopping work and talking to Mr. Priest.

There is no evidence that any disciplinary action was taken against them for that. Mr. Weiblin went to see Mr. Kammenzind and Mr. Fritz about where Mr. Priest was supposed to be although he could have simply told Mr. Priest to go about his business. Moreover, in the termination notice, interfering with the work of others was not cited as a grounds for dismissal. Pl. Ex. 6.

    In addition, I note that the Baldwin Associates Project Work Rules, Clinton Power Station, state that employees who are absent for three consecutive days without notifying the timekeeper will be terminated. The rules are silent on discipline for being out of one's work area. Pl. Ex. 3, p. 5.

    Mr. Priest established a prima facie case of discrimination by showing that he engaged in protected activities of which Baldwin was aware³ and adverse action, termination, was taken against him shortly thereafter. Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982); Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir. 1980); Dean Dartey v. Zack Company of Chicago, 82-ERA-2 (April 25, 1983).

    Baldwin Associates articulated two reasons for firing Mr. Priest: (1) that "Baldwin could get no work out of him" (apparently a reference to Mr. Priest's absences the three days prior to being fired and his request for vacation for the next four days); and (2) that Mr. Priest was out of his work area for 30 minutes and distracting another employee the day he was fired. Respondent's Post Hearing Brief at 21. The first reason, although stated on the termination slip, Pl. Ex. 6, was later withdrawn. Pl. Ex. 8. Mr. Kammenzind acknowledged at the hearing that when Mr. Fritz spoke to him about firing Mr. Priest, there was a possibility that the absences had been authorized, and admitted that the sole reason for firing Mr. Priest was for being out of his work area. T. at 300. When

¹ The correct spelling is K-A-M-M-E-N-Z-I-N-D. T. at 267.

² Mr. Thompson's statement also says that on April 23, 1984, Mr. Priest left Mr. Thompson's area about 8:10 a.m. and returned about 9:00 a.m. Mr. Fritz said it was 9:10 a.m. when Mr. Priest returned. The witnesses generally agreed that it would take about 10 minutes to go from Mr. Thompson's area to the union steward's area and 10 minutes to return. The record indicates that Mr. Priest spoke to the union steward for 10 to 15 minutes. T. at 403. The total unaccounted for time Mr. Priest was out of his work area, therefore, was from 20 to 30 minutes. Counsel for Baldwin Associates objected to the admission of this exhibit, but the ALJ overruled the objection and gave Baldwin Associates 15 days to take Mr. Thompson's deposition. T. at 19. Baldwin Associates did not do so. I find the ALJ's procedure appropriate under 29 C.F.R. Part 24 (1985) and 29 C.F.R. Part 18 (1985), particularly in view of the fact that Mr. Priest was not represented by counsel.

³ Mr. Kammenzind, the General Superintendent of the Electrical Department, was aware that Mr. Priest had reported the break in to IPC and was pursuing the issue of the missing travelers. T. at 283. He was consulted by Jack Beach before Mr. Priest was transferred from Mr. Beach's supervision to Bob Fritz's supervision because of concern that the transfer might create more problems as a result of the IPC investigation of quality questions raised by the break in. T. at 284. Mr. Kammenzind also knew, a few days after the report was made, that Mr. Priest reported the break in to plant security. Mr. Kammenzind commented at the time that he did not understand why a report had been made if it was an authorized break in. T. at 300-301.