compels a contrary inference, I reject the ALJ's recommendation on the
discrimination issue.
Complainant testified about his termination as follows:
Q. What happened on September 5th?
A. I went to my normal job, the one I was working
on and later he came and said, "Are you ready to
go?" I said, "Yes." So, I left and went towards
the crew I was supposed to be working on. I
walked through the dress out area and looked at
the surveys as I passed through, and I left out of
there and went and looked for my foreman I was
supposed to meet. I didn't find him, so I went
back through and checked the surveys again. Some
of the guys I was supposed to go in with, which
was ten of us, they said, "We're going to be sent
in a real hot area," said it would be a pump bay
under the floor, which would have been a high rad,
a locked high radiation area.
So, I checked some of the Surveys and being as the
shielding was out, naturally, the radiation limit
was going to be more.
Q. What did you see on the surveys?
A. Well, they were much higher than normal.
Q. Did you then, look for your foreman gain?
A. Yes, I did. There was a hustle bustle with
everybody trying to get organized. I never did
run into the foreman, but I went back to my
foreman and told him what I felt, that it was
unsafe to go into the reactor building because of
the lead shielding being taken out. This was
Bobby Jones.
Q. Did you talk to a Quality Control Technician?
A. Yes, I did. I met him. The job I was
performing on the outside, he was my technician.
Q. What was his name?
A. His name is Mr. Richard Miles.
Q. Do you know where he is now?
A. No, ma'am. I don't.
Q. Did you learn anything from him?
A. Yes, ma'am. He told me that the radiation in
there was substantially higher. A week before, he
had been in the hatchway where he picked up no
radiation, and just in the hatchway entry, the
radiation, was 85 millirems, he said.
Q. What did you do then?
A. I went back and told my foreman that I didn't
think it was safe for me to go in there, or any of
the rest of us people until the shielding was put
back in.
Q. Did you refuse to go at all, or just until the
shielding was back up?
A. I told him that I didn't mind doing the job,
that I knew when I hired on that the job as a
radiation worker, you would get certain amounts of
radiation, but I didn't feel safe about the job
and it just was unsafe.
Q. This morning, did you look at the Employment
Manual that Respondent is going to introduce into
evidence?
A. Yes I did.
A. Did you find a section that you were trained
with that gave you responsibility for your own
safety?
A. Right.
JUDGE VONBRAND: Could you identify that by
exhibit number?
MS. BURNETTE: This would be Respondent's Exhibit
No. 1.
Q. (by Ms Burnette) Would you please look on page
16?
Q. Would you read that statement on page 16?
A. Each employee at CP & L must assume full
responsibility for his/her personal safety.
Q. Would you read again on page 76?
A. Each worker shares in the responsibility for
radiation exposure. Each workers [sic] is also
obligated to report any unsafe or potentially
unsafe practices to CP&L. If there is no response
by CP&L, report to the NRC.
Q. Did you believe that you were following the
procedure as set out by this manual?
A. Yes, ma'am. These are on bulletins that are
posted all over the plant.
Q. Had you ever had exposures in large amounts in
the past?
A. Well, I was in there one other time and we had
a pretty good amount of exposure for five days. I
assure we was.
Q Were you terminated as a result of your
reporting that you felt it was unsafe for you to
work in that area?
A. Yes, ma'am.
Q. Tell me all about your termination. What
happened?
A. Well, I told Bobby Young how I felt and he said,
"Well, I can not make you go in a place like that
because I don't have the authority, but I will talk
with our superintendent, Horace Howell, and see what he
has to say." Well, I don't know who told Horace Howell
or give the hand down, but my foreman came back to me
later on, at about 8:30 and said "We're going to give
you until break time to tell us what you want to do.
Like I say, we can't make you go in there, but if you
don't, we'll have to terminate you."
JUDGE VONBRAND: Who is Bobby Young."
MS. BURNETTE: He was the foreman.
JUDGE VONBRAND: Your foreman?
THE WITNESS: At that time.
JUDGE VONBRAND: All right. Proceed.
Q. (by Ms. Burnette) Go ahead.
A. Well, at break time, he said, "I'll need to
know what your answer's going to be." Well, I
went into the break which was approximately 9:00
and we sat down, I sat down at the table where my
crew always takes their break at and all the guys
in there told me, "If you don't feel it's safe,
don't do it because you don't have to." I told
those guys I didn't mind doing the job, but I
didn't feel it was safe.
Bobby Young came in before the break was over and
said, "Well, what's it going to be?" And, I told
him, "Well, if they put the shielding up and make
it a safe job, I'll do it. But, if it's not, I
won't."
So, at that time, he left and went to talk to
Horace Howell again and came back and told me that
at 10:00, I would be terminated.
Q. Were you terminated at 10:00?
A. Yes, ma'am.
Q. Did you try to contact a representative of the
Nuclear Regulatory Commission that day?
A. Yes, ma'am, I did, but my clearance was taken
away fast. I was hustled out before I could do
any talking to anybody.
Complainant's uncontradicted testimony as to how and why he was
fired, was consistent with the testimony of Respondent's witness,
Floyd Slatton, the project Manager at the H.P. Robinson Plant:
Q. Why was Mr. Blackburn terminated?
A. He refused a job assignment.
Q. Was Mr. Blackburn's termination because of any
fear that Metric had that he would report Metric
to the NRC or some other Regulatory Agency?
A. None, whatsoever. That wasn't the reason I
terminated him. He was terminated. I'm the final
arbitor. I signed it and he was terminated for
refusing a job assignment he was assigned to do.
T. and 61-62.
Q. Did you ever meet with Mr. Blackburn that day?
A. No, ma'am. I didn't.
Q. He did not actually have a chance to give you
his reasons, did he?
A. I didn't talk to him that day for whatever
reasons. I don't know what the reason was.
Q. At the 9:00 o'clock break, his foreman was
gonna talk to him again. Bobby Young was going to
talk to him again and find out whether he wanted
to go and do this job?
A. I understood him to say that Bobby told him he
would like to know at break time what his decision
was, yes ma'am.
Q. Break was at 9:00?
A. Yes ma'am.
Q. To your knowledge did Bobby Young or you try
to check out any of Mr. Blackburn's concerns by
going to the figures or to the maps or anything
between 8:30 and 9:00, before he was told he was
fired.
A. When I got his determination slip would have
been probably right when he was terminated and
there was nothing said by anybody about a safety
concern on this incident.
Q. You do not know whether he brought that up or
not do you?
A. That's right. Personnally, I do not know.
Q. It could have brought it up with Bobby Young?
A. Yes, ma'am.
Q. You were not there?
A. No ma'am.
T. at 64-65.
Testimony from Respondent's other witness, Bruce Meyer, Health
Physics Specialist with CP&L, confirmed the basis for Complainant's
expressed concerns:
Q. Then, admittedly there is a great difference
or there could be a great difference in the amount
of radiation without the shielding?
A. Right. The exposure rates will vary with or
without the shielding, that's correct.
Q. Do you think lie might have a reasonable fear
for his safety?
A. That's a matter of what reasonable is.
Workers and us are always talking to each other.
I don't know if I'd call it reasonable. I can see
where someone could be fearful, yes.
Q. He might bring these concerns to his foreman?
A. Yes.
Q. Would you believe that if the foreman had
checked out the information and brought back more
information and attempted to calm his fears, that
might have worked? Have you had that experience
in working with these people?
A. Yes.
Excerpts from Respondent's Exhibit Number 1, a copy of the
General Employee Training Manual, published by Carolina Power and
Light Company, T. at 6, 8, read into the record by Complainant, stated
that "[e]ach employee at CP&L must assume full responsibility for
his/her personal safety," and that "[e]ach worker shares in the
responsibility for radiation exposure. Each workers [sic] is also
obligated to report any unsafe or potentially unsafe practices to
CP&L. If there is no response by CP&L, report to NRC." T. at 17.
The record demonstrates that employees at the Robinson Plant site
were given specific directions to monitor their own safety and report
their concerns to the employer. The record reflects that Complainant
did that.
The threshhold issue, under Pensyl , is whether Complaint's
belief
that working conditions in the containment area were unsafe was
reasonable, as measured by the "knowledge available to a reasonable
man in the circumstances with the employee's training and experience."
slip op , at 7. Complainant had been exposed to the nuclear work place
approximately six months, and the record does not reflect any prior
experience with the removal of portable shielding, the occurrence
which precipitated the refusal to work and the firing. Complainant
testified that he had not previously worked in the reactor building
without benefit of the shielding, as follows:
Q. How did you learn about radiation and safety
procedures?
A. We took a training course required upon being
hired on the job. Every employee has to go
through it.
Q. What does ALARA mean?
A. ALARA is as low as reasonably achievable.
Q. Did you recieve training in that?
A. Right.
Q. What was that?
A. It has to do with planning your job, the time
and distance and shielding to protect you and get
the job done in less time.
Q. On this particular quarter, September of 1984,
how many millirems of exposure had you received?
A. I don't think I had an for that quarter.
Q. Tell us about the events of September 4, 1984.
A. September 4th, which was the day after Labor
Day, we came back in and met where all our crew
meets and we had a safety report which was at the
start of every week. Being as how we were off on
the holiday, we had it that next day. I read the
safety report to the crew. That was Bobby Young's
crew. In it, it said that there was a lot of
shielding being removed from the reactor building.
And, we discussed safety glasses, hardhats and
more or less the same thing we always do. From
where I was standing, you could look into the RCA
lay down yard and see the shielding, itself, out
scattered in it.
Q. Had you worked in the reactor before?
A. Right, I had.
Q. Had the shielding been up then?
A. Yes, ma'am.
Q. What did you learn about the shielding, if
anything?
A. Well, shielding reduced a lot of your
radiation exposure. Radiation won't pass through
lead, where it will paper or any such thing.
Q. On this particular day, you said that the
report included information about the shielding
being removed?
A. Right.
T. at 12-13.
Complainant provided uncontradicted testimony of events
precipitating his refusal to work, all concerned with the removal of
the protective shielding: the concerns expressed by his fellow
workers, the information from the Quality Control Technician, Miles,
that the radiation levels had risen, and confirmation of the higher
radiation by the posted surveys. All of these contributed to
Complainant's concern that working in the reactor building would be
unsafe. It is not reasonable to expect him to have done more in the
brief time available to him before he was fired and "hustled" from the
work site. T. at 19. I do not agree with the ALJ's apparent
reasoning that Complainant could have ascertained "that his exposure
would not have exceeded NRC limits" after he had gone to work in the
area he reasonably believed to be unsafe. R. D. and O. at 10.
Complainant's decision whether or not to accept what he believed to be
an unsafe work assignment had to be made before he entered the
containment area, and adequate information should have been available
for him to do so. The record does not substantiate the ALJ's
conclusion that "on the basis of training and work experience he
[complainant] should have known that the means were available to him
to determine whether his fears were founded in fact before he refused
the assignment." Id . Rather it shows that Complainant had a good
faith, reasonable belief that working conditions in the containment
area were unsafe.
Under Pensyl , Complainant's refusal to work would have
lost its
protection if Complainant's concerns about increased radiation levels
had been investigated by Respondent, and if found safe, adequately
explained to him. However, the record provides no evidence this was
done. Respondent's two witnesses, Floyd Slatton and Bruce Meyer,
testified with respect to the procedures of Metric and CP&L to
maintain safe working conditions but they did not explain what if
anything was done to investigate Complainant's safety concerns or to
allay his fears. The two employer's representatives who appeared to
be best able to rebut Complainant's testimony, foreman Bobby Young and
the Quality Control Technician, Richard Miles, did not testify. The
record establishes that Blackburn was discharged for refusing to work
in what he believed was an unsafe area. He was engaged in a protected
activity and there were no steps taken by Respondent which, under
Pensyl , would have caused the loss of this protection. I find that in
discharging Blackburn for engaging in this protected activity, Metric
violated the Act.
The ERA requires that when a violation of section 5851 is found,
"the Secretary shall order the person who committed the violation to
reinstate the complainant to his former position together with the
compensation (including back pay), terms, conditions and privileges of
his employment. . . . ." In addition, the Secretary may order
compensatory damages and, "at the request of complainant shall assess
against the person against whom the order is issued a sum equal to the
aggregate amount of all costs and expenses (including attorneys'...
fees) reasonably incurred . . . for, or in connection with, the
bringing of the complaint . . . ." 42 U.S.C. § 5851(b)(2)(B).
The hearing before the ALJ did not address damages, as the
parties and the ALJ all agreed that timeliness and liability were the
issues to be determined. T. at 3-4. The record is inadequate as to
the facts necessary to establish the amount of back pay and/or other
make-whole damages, whether any compensatory damages may be warranted
and if so, in what amount, and the amount of attorneys' fees which
Complainant claims.
Accordingly it is ORDERED that
(1) Respondent reinstate Complainant to his
position as an electrician, or to a comparable
position with comparable pay and benefits;
(2) Respondent shall purge Complainant's
personnel file of all references relative to his
discharge on September 5, 1984; and
(3) This case is remanded to the ALJ for receipt
of such evidence as is necessary to determine what
back pay and/or compensatory damages are due to
Complainant and for a determination of attorneys'
fees.5
SO ORDERED.
ANN MCLAUGHLIN
Washington, D.C.
[ENDNOTES]
1
2 Wells was affirmed in
Kansas Gas and Electric v. Brock , 780 F.2d
1505 (10th Cir. 1985), cert. denied , 106 S. Ct. 3311 (1986)
3 Brown &
Root v. Donovan , 700 F.2d 281 (5th Cir. 1985), would be dispositive of
this issue in the Fifth Circuit. See Willy v. The Coastal
Corporation , 85-CAA-1, Secretary's Decision and Order of Remand,
June 4, 1987, slip op. at 3-4, 8.
4 See Wilson v. Bechtel
Construction Inc. , 86-ERA-34, Secretary's
Final Decision and Order, February 9, 1988; Smith v. Catalytic, Inc. ,
86-ERA-12, Secretary's Decision and Remand Order, May 28, 1986.
5
