Michael O'Brien, Esq.
Edward J. Enichen, Esq.
For the Complainant
Peter DeBruyne, Esq.
For the Respondent
BEFORE: CHARLES W. CAMPBELL
Administrative Law Judge
RECOMMENDED DECISION
This is a proceeding under the Energy Reorganization Act of 1974,
as amended ("ERA"), 42 U.S.C. § 5801, etseq., and its
implementing regulations, 29 CFR part 24. Forty-two U.S.C. § 5801
sets forth the Policy and purposes of the ERA, including to
assure public health and safety." The specific provision of the
ERA involved in this case is 42 U.S.C. § 5851, which states in
pertinent part as follows:
§ 5851. Employee Protection
(a) Discrimination against employee. No employer,
including a commission licensee, or a contractor or a
subcontractor of a commission licensee or applicant, may
discharge any employee or otherwise discriminate against
any employee with respect to his compensation, terms,
[Page 2]
conditions, or privileges of employment because the
employee (or person acting pursuant to a request of the
employee) ---
(1) commenced, caused to be commenced, or is about
to commence or cause to be commenced a proceeding
under this Act or the Atomic Energy Act of 1954, as
amended, or a proceeding for the administration or
enforcement of any requirement imposed under this
Act or the Atomic Energy Act of 1954, as amended;
(2) testified or is about to testify in any such
proceeding or;
(3) assisted or participated or is about to assist
or participate in any manner in such a proceeding
or in any other manner in such a proceeding or in
any other action to carry out the purposes of this
Act or the Atomic Energy Act of 1954, as amended.
(b) Complaint, filing and notification. (1) Any
employee who believes that he has been discharged or
otherwise discriminated against by any person in
violation of subsection (a) may, within thirty days
after such violation occurs, file (or have any person
file on his behalf) a complaint with the Secretary of
Labor (hereinafter in this subsection referred to as the
"Secretary") alleging such discharge or discrimination.
Upon receipt of such a complaint, the Secretary shall
notify the person named in the complaint of the filing
of the complaint and the Commission.
(B) If, in response to a complaint filed
under paragraph (1), the Secretary determines
that a violation of subsection (a) has
occurred, the Secretary shall order the person
who committed such violation to (i) take
affirmative action to abate the violation, and
(ii) reinstate the complainant to his former
position together with the compensation
(including back pay), terms, conditions, and
privileges of his employment, and the
Secretary may order such person to provide
[Page 3]
compensatory damages to the complainant. If
an order is issued under this paragraph, the
Secretary, at the request of the 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' and expert witness fees)
reasonably incurred, as determined by the
Secretary, by the complainant for, or in
connection with, the bringing of the complaint
upon which the order was issued.
Arley Blake, the complainant ("Blake"), at times relevant to this
case was employed by the respondent, Hatfield Electric Company
("HECO"), as a quality control ("QC") inspector. HECO was and is
a large electrical contractor which, during the time of Blake's
employment, was engaged in the construction of the Byron
Nuclear Plant No. 6 at Byron, Illinois as a subcontractor for
Commonwealth Edison Company ("CECO"), a licensee of the Nuclear
Regulatory Commission ("NRC"). Blake's employment was terminated
by HECO on September 12, 1986 pursuant to a reduction-of-force
("ROF").
Following proper notice, a hearing was held before me in
Rockford, Illinois during the period February 17, 1987 to
March 6, 1987, at which the parties were afforded opportunity to
present evidence and argument. Post-hearing briefs were filed by
both parties, reply briefs were filed on June 10, 1987 and the
respondent filed errata on June 12, 1987.1
The parties agree that the following issues are present in this
case:
(a) Whether Blake was selected for ROF termination by HECO
as a QC inspector at the Byron Nuclear Plant No. 6 on September
12, 1986, by reason of his activities protected under the ERA (or
contrarily for cause), which issue includes the following
sub-issues:
(i) Whether, as a matter of law, Blake's activities
protected under 42 U.S.C. § 5851 include his actions in processing
"internal" documents, such as DR's, NCR's and OIR'S,3[Page 4]
Although the quality control inspectors function as the "eyes and
ears of the NRC," as noted in Kansas City Gas & Electric Company,
it appears to be accepted practice for them to be employees of
the same company whose construction work they are inspecting. As
noted in the above excerpt from Mackowiak, this circumstance can
have the result that at times "the inspector may come into
conflict with his employer by identifying problems that might
cause additional expense and delay."
Robert B. Klingler, the project quality control supervisor for
CECO at the Byron nuclear power plant, who has bachelor's and
master's degrees in electrical engineering, testified that CECO
relied on inspectors to report improper procedures in the course
of carrying out its quality assurance audits (Tr. 1945-1947).
The following question and answer occurred during Klingler's
testimony:
Q. When you hire an inspector in the quality
assurance program, isn't is correct that you
want these guys to be capable, inquisitive,
honest and not afraid to speak their mind when
they think they have seen a discrepancy that
should be reported?
A. That is the man I want to work for me.
That is what we want. (Tr. 1948-1949)
It is clear from the holdings in Mackowiak and Kansas City Gas &
Electric Company that the quality control inspector's
independence is an attribute necessary in carrying out the stated
[Page 8]
purpose of the ERA to assure the public health and safety. Given
the situation where, as here, the quality control inspector at a
nuclear plant is an employee of the contractor whose work he is
inspecting, he must rely in large part for protection of that
independence on the employee protection provisions of § 5851 of
the ERA, including the provisions which authorize proceedings
such as the present one. It is essential to the integrity of
such proceedings that other employees be free to testify without
fear of retaliation from the management of the respondent, and it
is noted that such retaliation is specifically prohibited by
§ 5851.
Certain issues can be addressed at this point. First, I find
persuasive the reasoning of Mackowiak v. University Nuclear
Systems, Inc. and Kansas City Gas & Electric Company v. Brock
that an employee's actions in processing internal documents are
protected activity under the ERA. As the Kansas City court
stated, the quality assurance program and its inspectors are "the
eyes and ears of the NRC."
Secondly, I find that proceedings such as this one under § 5851 of
the ERA are not barred by the existence of or suspended during
collective bargaining or NLRB grievance procedures. The law does
not commit enforcement of § 5851 to those procedures. Proceedings
such as this one, unlike collective bargaining grievance and NLRB
procedures, are concerned not only with the rights of the
employee but the protection of the public safety and the
integrity of the process by which the public safety is assured.
In another ERA case it was stated:
The employee protection provision involved in
this case thus serves the dual function of
protecting both employees and the public from
dangerous radioactive substances. Rose v.
Secretary of Department of Labor, 800 F.2d
563, 565 (6th Cir. 1986).
In the present case, Blake did file a grievance under the
collective-bargaining agreement based on a belief that his
seniority should have precluded his layoff. HECO and union
representatives met without notice to Blake and decided that QA
personnel were not part of the bargaining unit, that no seniority
provisions existed and that the evaluations were a matter of
management prerogative. No consideration was given to possible
[Page 9]
violation of § 5851, and, indeed, as noted above, the
company-union group had no statutory authority to resolve § 5851
questions.
Thirdly, HECO's contention that Blake may not rely upon evidence
preceding September 2, 1986 to establish violations of the ERA is
considered to be without merit. The 30-day time limitation of
§ 5851(b)(1) pertains to the time period for the employee to file
a complaint after his discharge or other alleged discrimination.
What that means in this case is that Blake had to file his
complaint within 30 days of his layoff, which he did. The
provision does not mean that the only evidence tending to show
discrimination which is admissible must occur during the 30 days
before the complaint is filed. On the contrary, since employers
will rarely or never explicitly admit that they have acted in a
discriminatory manner, a careful review by the factfinder of all
of the relevant facts and circumstances is required, regardless
of when they occurred. As the Supreme Court stated in another
case involving alleged discrimination, "Determining whether
invidious discriminatory purpose was a motivating factor demands
a sensitive inquiry into such circumstantial and direct evidence
of intent as may be available." Village of Arlington Heights v.
Metropolitan Housing Development Corp., 429 U. S. 252, 266
(1977). Such "circumstantial and direct" evidence of intent is
considered to be relevant to the issues presented here regardless
of the time period in which the actions showing such intent
occurred. Consideration will next be given to the facts of the
case.
II
Blake was a HECO quality control ("QC") inspector from May 1981
until his layoff on September 12, 1986. He was one of the most
experienced inspectors of the approximately 25 QC inspectors
employed by HECO at Byron at the time of his layoff. Blake had
been assigned by HECO to train other inspectors, and he had
trained 15 to 20 people in Procedure 20 (conduit/hanger) alone.
He had scored well on performance evaluations in December 1985
and June 1986. In December 1985 Glen Ekern, Blake's lead
inspector, had given him a score of 39 and commented, "He has
trained numerous personnel, rarely misses work, shows judgment
and abilities." In June 1986 Ekern gave Blake a score of 38 and
commented, "Enthusiastic, knowledgeable and respected inspector."
[Page 10]
The weight of the credible testimony is to the effect that Blake
was one of the best HECO QC inspectors at Byron. A former
supervisor of Blake, Thomas Ahlquist, testified that Glen Ekern
or Blake were the most knowledgeable inspectors on the job site
of those he supervised, including Blake, Robert Frankfather,
Ekern, Dave Klink, Roger Austin and Jasper Wilson (Tr. 157-158,
161-162). When Robert Frankfather, a fellow QC inspector, heard
that Blake was being laid off he said, "We our losing our best
inspector" (Tr. 402). Ekern, who was Blake's lead inspector at
the time of Blake's layoff, considered that Blake was "number
one" in capabilities relative to the other men under him
(Frankfather, Austin and Jasper Wilson) at the time of Blake's
layoff (Tr. 441-442). James Fornwall, a former QC group leader
in the conduit and hanger section where Blake was employed,
testified that during the time he was group leader, "Blake was
the best man I had out there" (Tr. 612). Scott MacPhee, another
QC inspector still employed by HECO as of the time of the
hearing, testified that Arley Blake and Dave Klink were the "best
inspectors in the group," (Tr. 647) and later he testified that
out of a named group of seven inspectors, including himself, he
would rate Blake "[r]ight near the top of the group" (Tr. 668).
Paul McMenamin, a former QC inspector in the HECO conduit and
hanger group at Byron, ranked the other inspectors in the group,
in terms of capabilities and abilities, from top to bottom, as
Blake, MacPhee, Jasper Wilson, Klink, Austin and Frankfather
(Tr. 979-980). John Wilson, another former HECO QC conduit
inspector at Byron, testified that "Arley [Blake] was one of the
best damn inspectors I have ever worked with" (Tr. 995-996).
The December 1985 and June 1986 personnel evaluation report
scores for the five inspectors in the conduit/hanger group of
inspectors were as follows:
It is clear from the record that Blake came into conflict with
HECO management in regard to inspection procedures several times
during the year before his layoff. In general, these conflicts
came about because Blake was insistent upon observing what he
considered to be proper inspection procedures, whereas some
members of management, notably Ross Farrall,8 differed with Blake
because, at least in part, they were trying to expedite
construction of the Byron plant.
However, "development of technical skill" was one of the factors
listed in the evaluation form on which McCarty undertook to
evaluate Blake and others. The contradictory nature of the
testimony which McCarty gave regarding whether the "surveyor
incident" affected his rating of Blake on technical skill has
been referred to previously.
Another reason which McCarty gave at his deposition for his low
evaluation of Blake was that Blake continued to reject certain
installations which failed to contain O-rings during a period of
time after the requirement for O-rings at those installations had
[Page 21]
been deleted from the plans (Tr. 375). However, at the hearing
McCarty admitted that HECO had not been able to find any reports
by Blake rejecting installations for failure to install 0-rings
which had been prepared after the 0-ring requirement had been
deleted (Tr. 240-241). Thus, it seems clear that this criticism
of Blake had no basis in fact.
At the hearing certain members and former members of HECO
management (McCarty, Steven Bindenagel and Farrall) also made
criticisms of Blake's working habits such as alleged abuse of
coffee breaks, starting out to the field late in the morning,
getting ready to leave early in the evening, loafing around a
brushpile and spending too much time studying the blueprints.
Blake denied all of these allegations. All of the other
witnesses who had opportunity to observe Blake's work habits and
who testified on the point stated that they had not made these
observations about Blake. These included Ekern, Blake's lead
inspector, and Klink, a current HECO employee who was called as a
witness by HECO, as well as Frankfather and MacPhee.
As with several other incidents referred to during the hearing,
this divergent testimony of two groups of witnesses creates a
credibility problem. After hearing the testimony, observing the
witnesses and studying the record, I credit Blake and those
witnesses who testified that they observed no bad work habits on
his part. For one thing, no mention of bad work habits was made
on the evaluation form, and there is no evidence that HECO
informed Blake at the time of the September 1986 evaluation and
layoff that such alleged bad habits were a reason for selecting
him for layoff. For another, the weight of the credible evidence
indicates that Bindenagel exaggerated in his testimony the amount
of time during which he was in the same construction trailer with
Blake and in a position to observe him. Also, as pointed out
above, McCarty's testimony was inconsistent in certain other
respects, which casts doubt on his credibility as a witness.
Thus, these criticisms of Blake's work habits appear to have no
basis in fact.
Larkin made the determinations as to which inspectors would be
laid off. He testified that his decision to lay off Blake was
based on his numerical score in the evaluation prepared by
McCarty and on the areas of Blake's certifications (Tr. 2446),
that he prepared a termination schedule on September 8, 1986 or
before and that he first became aware of Blake in a job-related
[Page 22]
context on September 10, 1986 when he saw Blake in his office.
If Larkin is to be believed, his decision to lay off Blake was
based solely on Blake's areas of certification and on the
performance evaluation and not on any other knowledge of Blake.
However, Roger Austin testified, credibly, that Larkin had
remarked to him on September 10, 1986 that Blake was a
"troublemaker" after Blake had denied that he had signed a report
that bore his apparent signature and had then repeatedly
requested Larkin to show him his recent performance evaluation
and Larkin had finally, reluctantly, after first saying that
Blake could see it at his exit interview on September 12, shown
it to him (Tr. 2746-2749). That was the first time that Larkin
had talked to Blake. It would seem unusual that a supervisor
would form an opinion that an employee was a "troublemaker"
merely because the employee denied the authenticity of a
signature and/or requested to see his performance evaluation, and
it seems more likely that Larkin had some other basis for that
belief.
There was at least one occasion on which Larkin's testimony
impressed me as inconsistent, which was in regard to the reasons
why, on December 19, 1986 he retained Roger Austin as an
inspector instead of Frankfather, who was laid off on that date.
Larkin testified at pages 2478-2479 of the transcript that one of
the reasons that he retained Austin was that after dealing with
him he formed an impression that Austin was fair in his judgment.
However, at pages 2494-2495 Larkin testified that his retention
of Austin was based on Austin's position as a union steward
rather than on his personal impressions of Austin. This latter
testimony came at a point in the hearing when HECO was attempting
to establish that as between Blake, Ekern and Austin, Blake would
have been laid off eventually even if he had not been laid off on
September 12, 1986 and that Larkin would have based this putative
future decision solely on Ekern's position as a lead inspector
and Austin's position as a union steward, without regard to the
personal attributes of the three inspectors. This was an
occasion where, in my opinion, Larkin clearly tailored his
testimony to fit the occasion and in doing so contradicted
himself.
Larkin's testimony that he was unaware of the substance of
Blake's testimony at the Spencer trial strikes me as incredible.
In fact, HECO management was intensely interested in what its
[Page 23]
employees were going to say in their testimony at that trial. It
was common knowledge around the trailer where Blake, Ekern and
Jasper Wilson worked, and where McCarty also worked, that those
three inspectors were going to testify on Spencer's behalf (Tr.
1473-1474, 2205). Soon after the three inspectors received their
subpoenas to testify at the Spencer trial, George Vanderhei, a
vice-president of HECO and Hatfield's project manager at the
Byron site, heard of it through the "grapevine" (Tr. 1839) and
sent each of them a letter directing them to meet with HECO's
trial counsel. Vanderhei testified that he was "interested to
find out if they were going to be for Mr. Spencer or for the
company" (Tr. 1841). Vanderhei apparently was present throughout
the Spencer trial, and McCarty, one of Larkin's subordinates,
testified on behalf of HECO at that trial. It should be noted
that Vanderhei did not confine his activities entirely to
production; he had also affected the QA/QC department by
recommending to HECO's president the firing of Al Smith, the
former QA/QC supervisor, a recommendation which was followed (Tr.
1771-1773).
I consider that both Larkin, despite his denial, and McCarty must
have been aware at least in general terms that the three
inspectors had testified against HECO, even if Larkin and McCarty
were not aware of every detail of their testimony. The
circumstantial evidence that management was aware of the nature
of Blake's protected activity includes the facts that Blake had
received good ratings on his performance, evaluations until just
after he testified in the Spencer trial, the timing of the
September 1986 performance evaluation, the misstatements made on
the September 1986 performance appraisal, failure to discuss with
Blake his alleged bad work habits at the time of his September
1986 evaluation and/or layoff and the specious testimony of
management witnesses about Blake's alleged bad work habits and
other matters. See: NLRB-V. Mid State Sportswear, Inc., 412
F.2d 537, 539 (5th Cir. 1969).
It is concluded on the basis of the whole record that the weight
of the credible evidence clearly indicates that HECO's decision
to select Blake for layoff was caused by the fact that he
testified against HECO at the Spencer trial.
The timing of the performance evaluations, the deliberate
ignoring of technical skills in the evaluation process, the
contrast in scores with Blake's previous evaluations both
[Page 24]
numerically and relatively, the low scores given to all three
inspectors who testified at the Spencer trial, the retention of
Frankfather who was clearly a less competent inspector than Blake
and the untrue rationalizations advanced by HECO to support the
low score given Blake, all point in the same direction. The
inference is clear that HECO saw the impending layoffs as an
opportunity to get rid of QC inspectors whom it considered
disloyal to the company because of their testimony at the Spencer
trial. However, what may have seemed to constitute disloyalty
from a corporate standpoint in this case was protected activity
under the law. The rationalizations advanced by HECO cannot
disguise that it attempted to punish employees for exercising
their rights to engage in activity protected under the ERA and
thus attempted to subvert the integrity of the hearing process by
which ERA-protected rights are safeguarded. This is not a "mixed
motive" case. No other motive for Blake's selection for layoff
has been shown in the record.
Although no definite conclusion has been reached that Blake's
previous protected activities in regard to inspections and the
NRC investigation did or did not play a significant part in
HECO's decision to select him for layoff, it is unnecessary to
resolve these questions. If these activities did play a part in
HECO's decision, that circumstance would merely constitute
further grounds for finding a violation of § 5851 in connection
with the layoff.
IV
The next question to be addressed is whether Blake is barred from
reinstatement because of asserted misstatements which he made on
his job application with HECO. Blake filed his job application
with HECO in 1979 (RX 1026). He listed the following information
as to his education:
Years Year
Name of school Attended Graduated
Grade Rock River 8
High Jefferson 3
Blake did not make any entries under the heading "Year
Graduated." In fact, Jefferson was a junior high school, and in
the three years in which Blake attended Jefferson he attended the
1 Although the transcript appears to
be a complete transcript of
the hearing, there are gaps in the pagination. There are no
pages numbered 672 through 900, inclusive, or 1112 through 1399,
inclusive. Thus, the transcript consists of pp. 1-671, 901-1111,
and 1400-2951. An order issued on February 9, 1987 by the judge
who was previously assigned to the case noted that the
complainant had waived any right to a speedy decision which right
is not reasonably consistent with the timetable for submission of
briefs.
2 This statement of issues is
adapted from the parties' joint
prehearing statement of position filed on February 10, 1987.
3 DR's are discrepancy reports
(Tr. 62); NCR's are nonconformance
reports (Tr. 62, 457); and OIR's are open inspection reports
(Tr. 60-61).
4 See Tr. 6-7 for discussion
relating to whether animus on the part
of HECO was subject to proof by circumstantial evidence.
5 September 2, 1986 was 30
days before the date on which Blake
filed his complaint with the Secretary of Labor which initiated
this case.
6 The following abbreviations
will be used: CX - Complainant's
Exhibit; RX - Respondent's Exhibit; ALJX - Administrative Law
Judge Exhibit; Tr. - Transcript of hearing.
7 It is considered that the
Mackowiak and Kansas City cases were
decided in accordance with the intent Congress in promulgating
the ERA and that those cases constitute the weight of authority.
However, it should be noted that a more restrictive view of the
employee protection provisions of § 5851 was set forth by one
court of appeals in Brown & Root, Inc. v. Donovan, 747 F.2d 1029
(5th Cir. 1984).
8 Farrall was an employee of
Energy, Inc. on loan to HECO and
served as QC supervisor at the Byron site from December 1985 to
August 1986. He was the supervisor of Daniel McCarty, the
assistant QC supervisor in charge of the mechanical group of
inspectors, which included Blake's conduit/hanger group of
inspectors, whose lead inspector at most of the times relevant
herein was Glen Ekern.
9 However, John Wilson, a
former QC inspector and coordinator of
the nuclear work request program at Byron, testified that
Al Smith, the former QA/QC supervisor who left in July 1986,
apparently as a result of the NRC investigation, had asked him
after the May 9, 1986 NRC meeting for his opinion as to whether
Arley Blake and Jasper Wilson were troublemakers. According to
John Wilson, he refused to answer the question but told Smith his
opinion that Blake was "one of the finest inspectors you have"
(Tr. 1000-1001).
10 HECO argued that Larkin
considered only Blake's numerical score
on the evaluation, and not McCarty's comments, in determining to
lay him off. This argument avails HECO nothing, in my opinion.
Obviously, the negative comments help explain why the low
numerical scores were given and thus are inseparable from the
numerical scores for purposes of this proceeding.
11 At this point the witness
was referring to a "level III"
inspector. See Tr. 643-644 for testimony as to duties of level
III inspectors.
12 In 1983 Blake received a
G.E.D. (high school equivalency
diploma).
13 It is also noted that
Bindenagel, a member of HECO management
who presented testimony on behalf of HECO, gave conflicting
testimony as to whether he, Bindenagel, was a journeyman
electrician (Tr. 2098-2099, 2927, 2937-2938), and that a fellow
employee, Dennis Conour, presented testimony, which I credit, to
the effect that Bindenagel was not a journeyman electrician (Tr.
2941-2942). Apparently, therefore, Bindenagel signed an
incorrect "certification package" (CX 80) as an inspector in
which he represented to HECO that he was a journeyman
electrician.