Smith v. Norco Technical Services , 85-ERA-17 (Sec'y Oct. 2, 1987)

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USDOL/OALJ Reporter
Smith v. Norco Technical Services, 85-ERA-17 (Sec'y Oct. 2, 1987)

U.S. DEPARTMENT OF LABOR

SECRETARY OF LABOR WASHINGTON, D.C.

DATE: October 2, 1987
CASE NO. 85-ERA-17

ROBERT L. SMITH,
COMPLAINANT,

NORCO TECHNICAL SERVICES
& GULF STATES UTILITIES CO.,
RESPONDENTS.

BEFORE: THE SECRETARY OF LABOR

FINAL DECISION AND ORDER

Administrative Law Judge A. A. Simpson, Jr., submitted a recommended Order of Dismissal to me in this case arising under the employee protection provisions of the Energy Reorganization Act. 42 U.S.C. § 5851 (1982).

Complainant an instrument control technician for Norco Technical Services (Norco), a contractor of Gulf States Utilities Company (GSU) in the construction of the River Bend Nuclear Facility at St. Francisville, Louisiana. In the course of testing electrical systems in the plant control room, Complainant discovered a grounding problem. He asserted that he reported this problem to Rusty West, a GSU supervisor, and Ken Dunham, an engineer

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with Stone & Webster, the prime contractor in the construction of the River Bend plant. Complainant also asserted that he threatened to go to the GSU quality assurance control department and the Nuclear Regulatory Commission (NRC) if the grounding problem were not corrected.

Mr. West denied that Complainant ever spoke to him about a grounding problem in the control room, and he also denied that Complainant ever threatened to go to GSU Quality Assurance Control or the NRC about a problem in the control room. Mr. Dunham complainant made either threat to him or in his presence. also denied that

The ALJ specifically credited the testimony of Mr. West and Mr. Dunham and found Complainant's testimony not credible on whether Complainant made a threat to Mr. Dunham in Mr. West's presence to go to the NRC. The ALJ seems not to have made a specific finding whether he believed Complainant or Mr. West concerning Complainant's alleged threat that he would go to the GSU Quality Assurance department, or that he had complained to Mr. West and Mr. Dunham at all about a grounding problem in the control room. Shortly after making these alleged statements, Complainant was transferred out of the control room and then laid off.

The Administrative Law Judge (ALJ) recommended that the complaint be dismissed because be found that Complainant did not make threats to responsible officials of Gulf States Utilities to report a safety problem to the Nuclear Regulatory commission.¹ Order of Dismissal (O.D.) at 3. The ALJ also held that, even if such threats had been made, they would not constitute a protected activity under the interpretation of section 5851(a) set forth by the Fifth Circuit in Brown & Root Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984). O.D. at 3.

I continue to believe that making internal reports of safety problems to one's employer is a protected activity. See Mackowiak v. University Nuclear Systems, Inc., Case No. 82-ERA-8 (April 29, 1983), aff'd and rem. on other grounds, 735 F.2d 1159 (9th Cir. 1984); Wells v. Kansas Gas and Electric Co., 83-ERA-12 (June 14, 1984), aff'd sub nom Kansas Gas and Electric v. Brock, 780 F.2d 1505 (10th Cir. 1985), cert. denied, 106 S.Ct. 3311 (1986); Richter v. Baldwin Associates, 84-ERA-9, 10, 11 and 12 (March 12, 1986), Willy v. The Coastal Corporation and Coastal States Management Corporation, Case No. 85-CAA-1 (June 4, 1987). Furthermore, this case highlights some of the difficulties and incongruities inherent in the Fifth Circuit's interpretation of Section 5851(a). Among

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other things, that section protects an employee who "is about to assist or participate in any manner in [an NRC proceeding]. Thus, for example, if Complainant had been able to prove that he was "about" to make a complaint to the NRC, that clearly would have been a protected activity. But he would not have been protected, under Brown & Root, if he only made a complaint to his employer and did not threaten to go to the NRC. I can find no logical reason for treating an employee differently, exposing him to discharge in the latter case for essentially the same conduct for which he otherwise would receive full protection.

Thus, if Complainant proved either that he threatened to go to the NRC or to GSU Quality Assurance, or simply complained about a safety problem at the plant to his employer, it would constitute protected conduct and dismissal of his complaint would not be appropriate. A review of the record, however, shows that Complainant did not even raise safety problems with his employer. O.D. at 3. Management employees Ken Dunham and Rusty West both denied that Mr. Smith ever spoke to them about a grounding problem in the control room, or threatened to go to the NRC about it. T. at 52-53; 77-78. The ALJ expressly credited their testimony over that of Complainant as to whether Complainant threatened to go to the NRC about the grounding problem. O.D. at 3. I rely on the ALJ's credibility determination on this point because, as explained in an oft-quoted passage in Beavers v. Secretary of Health Education and Welfare, 577 F.2d 383 (6th Cir. 1978):

[t]he notion that special deference is owed to a credibility finding by a trier of fact is deeply embedded in our law. The opportunity to observe the demeanor of a witness, evaluating what is said in light of bow it is said, and considering bow it fits with the rest of the evidence gathered before the person conducting the hearing, is invaluable, and should not be discarded lightly.²

557 F.2d at 387. As to whether Complainant threatened to go to GSU Quality Assurance Control or that he ever complained about a grounding problem in the control room, statements which would constitute protected activity in my view of the statute, I find that Complainant has not carried his burden of proof that these statements were made to management officials. Therefore, the complaint in this case is DENIED because the Complainant did

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not engage in any protected activity.

SO ORDERED.

WILLIAM E. BROCK
Secretary of Labor

Washington, D.C.

[ENDNOTES]

¹ In view of my disposition of this case it is not necessary to consider whether Complainant was an "employee" of Gulf States Utilities for purposes of the ERA.

² Deference to credibility determinations of an ALJ should be distinguished from the authority of an agency to draw its own inferences from proven facts in the record without deference to inferences drawn by the ALJ. See Hedstrom Co. v. NLRB, 629 F.2d 305, 316 (3rd Cir. 1980), cert. denied, 450 U.S. 996 (1981).