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.
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FACTS
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.
[Page 3]
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?
_______
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
[Page 4]
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
[Page 5]
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)
-----
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
[Page 6]
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
[Page 7]
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)
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.