86-ERA-12

David H. Smith, Jr.
    Complainant

    v.

Catalytic, Inc.,
    Respondent

    This case raises the question whether refusal to work in an unsafe area is a protected activity under the employee protection provision of the Energy Reorganization Act of 1974, 42 U.S.C. § 5851 (1982) (the Act). Because the Secretary has already held that, in certain specific circumstances, refusal to work is a protected activity, Pensyl v. Catalytic, Inc., 83-ERA-2 (Jan. 13, 1984), and the Administrative Law Judge (ALJ) apparently was not aware of that precedent, I will remand this case to the ALJ for reconsideration and the taking of further evidence in light of Pensyl.

    David H. Smith, Jr., was employed as a sheet metal worker by Catalytic, Inc. at the St. Lucie, Florida, Nuclear Power Plant on September 3, 1985. On September 26, 1985, at about

8:30 a.m., after being warned by a co-worker of the presence of radioactivity in their work area, Mr. Smith was "frisked" with a radiation detection device and an alarm went off. Health physics personnel told him that the radioactivity was due to noble gas and directed him to sit in a breezeway for 45 minutes to an hour to dissipate the gas.¹

    Mr. Smith's supervisor, Mr. Gene Wright, saw him in the breezeway and asked why he was there. When Mr. Smith said it was because he was contaminated with noble gas, Mr. Wright said all the workers were contaminated, and that Mr. Smith should go back to work. Mr. Smith said he did not want to work in that area because he was concerned for his health, and Mr. Wright told him that was the only work available for him. Mr. Smith left work and was fired the next day for refusing a job assignment and leaving the job site without notifying his supervisor.

    The ALJ recommended that the complaint be dismissed because "there is no evidence that the complainant participated in a NRC proceeding." Recommended Decision and Order at 4.

¹ There was some confusion in the record, as well as in the ALJ's Recommended Decision, about the nature of the safety hazard from noble gases. Noble gases are chemically inert gases such as argon, krypton, and xenon which are by-products of the nuclear fission process in a nuclear power plant. As by-products of fission, they typically are radioactive, but the level of radioactivity may or may not be hazardous to human health. See generally 10 C.F.R. Part 20 (1985), Nuclear Regulatory Commission Standards for Protection Against Radiation. There was testimony to the effect that noble gases in high concentrations can cause cataracts and skin disorders. Although it was not made entirely clear in the record, these effects apparently are caused by high concentrations leading to high exposures to radiation.