necessary to review all of the plant's operating and maintenance procedures. (Tr. 407-10). This program to review the plant's procedure was known as the Surveillance Instruction (SI) Review Program.

    Tom Skelly was assigned to work in the SI Review Group. Because of the large amount of work being simultaneously performed, it was necessary for TVA to supplement its regular work force with contractors. In the case of the SI Review Group, TVA contracted with Westinghouse to supply people to work under TVA and Westinghouse supervision. Complainant was himself under contract with a company, IMC Incorporated, which in turn contracted to supply service to Westinghouse. Under the terms of this contract Skelly could be terminated without notice if he was found unfit or unqualified to perform his duties (CX-2).

    On June 21, 1986, Westinghouse contracted to make its employees available to TVA to perform engineering and related services under TVA supervision. Pursuant to that contract, Tom Skelly, an independent contractor or job shopper, was assigned on July 7, 1986 (Tr. 6) to work under the joint supervision of Frank Siler (hereinafter referred to as Siler), a TVA employee, and Raul Estevez (hereinafter referred to Estevez), who was employed by Westinghouse. The mission of the SI Review Program was to review and rewrite, as necessary, all of the SI's for technical adequacy. (Tr. 407-8) SI's are what the craft and instrument section used to calibrate all the instruments in the plant (Tr. 350). In other words SI's are used to satisfy surveillance requirements and make sure systems are operating properly and safely. Skelly's job was to review SI's for technical adequacy by completing Part I of a checklist agreed to by TVA and the Nuclear Regulatory Commission (hereinafter referred to as NRC) (Tr. 411-14; CX 3). If the SI did not pass the checklist, the engineer was to rewrite the procedure necessary. The rewritten procedure was then subject to four levels of review and two audits (Tr. 418-30; RX- TVA 9). Skelly worked on six SI's, the most complex

and time consuming of these SI's worked on was SI 125 which dealt with the seismic equipment at the nuclear plant (RX-TVA 1). These SI's were reviewed by Skelly using instructions and guidelines that were in the process of being put together by Westinghouse and TVA during this early phase of the SI review (Tr. 28-31).

    There was testimony that Skelly's supervisors were dissatisfied with his work in reviewing and rewriting SI 125 and felt he was not qualified to perform these procedures. His supervisors claimed that the dissatisfaction with his work resulted in the decision on September 15, 1986 to terminate his employment (Tr. 623-25, 434) and he was told of this decision on that date. Skelly denies being told of this prior to his last day of work on September 26, 1986. He testified that during his entire course of employment demands were made by management to produce quantity to meet time schedules that had been established (Tr. 211, 291, 531, 532). He complained that this emphasis on production jeopardized safety because of the poor quality of work. He claimed that he made these concerns with regard to safety known to management and that this resulted in the adverse action taken against him.

Complainants Witnesses

    Skelly testified that he had ten years nuclear experience doing similar work (Tr. 26-27) but did not previously do surveillance instruction writing (Tr. 69). At TVA there was little orientation and technical review checklists and writers guides used in performing the job were inadequate with frequent changes being made (Tr. 27-32). His job was to review SI's and rewrite them if necessary. He explained the difficulties in reviewing SI-125 (Tr. 37- 43). He was told that TVA considered his performance substandard by Estevez when reviewing SI 125 (Tr. 52). Skelly said that Estevez always stressed production and set unrealistic schedules but never told them to put quantity over quality (Tr. 45-46). The group of engineers were expected

to sign off on SI's quickly. Skelly complained to Siler about this push for production and Estevez use of management intimidation techniques and told him he intended to go to authorities if it was kept up (Tr. 47-49). He told Steve Firshing and John Grun, fellow employees, that he was thinking of going to the NRC shortly before he contacted the NRC and TVA Inspector General (Tr. 49-51). Skelly earned $28,360 while working for TVA. Originally Estevez told him he was being laid off but then on a tape recording made by Skelly, Estevez told Skelly he was being fired for low productivity. Skelly said he was not told he was being fired for the quality of his work (Tr. 54-56).

    Thomas Vander Schuur, a coworker and friend, testified that management wanted him and the other engineers to do as little as possible to make the procedure satisfy the checklist. He helped Skelly with SI 125 and interceded with Siler to convince him of the need to rewrite it (Tr. 206- 207). In his opinion SI 125 was more difficult than the other procedures and to review and rewrite it would take about three weeks (Tr. 21 5). On cross examination Vander Schuur said he questioned whether or not Skelly had prior experience writing surveillance inspection procedures and also indicated that Skelly required more assistance than any other of the engineers (Tr. 228-229).

    Darryl Gardner, another coworker, testified concerning the difficulties in reviewing and rewriting SI's (Tr. 80-294). He also told of group meetings at which Skelly on numerous occasions raised questions about the methodology that was being used to patch and review SI's and running things through as fast as possible (Tr. 295). He said management wanted as much production as possible, that is quantity not quality (Tr. 301). They pushed reduction and not quality. By actions he said, production was emphasized over quality.

Respondents Witnesses

    Kenny Lane, a senior mechanic for TVA for 13 years, worked with Frank Siler's SI review group

looking at the procedures in practice (Tr. 349- 350). He had performed the SI 125 procedure on three different occasions (Tr. 351). He reviewed SI 125 written by Skelly at Frank Siler's request and considered it inadequate because it was jumbled, out of sequence, and could not be performed as written (Tr. 355-356). He was of the opinion that Skelly did not turn out quality work (Tr. 361).

    Frank Siler a TVA employee who headed up the SI review group supervised Skelly's work (Tr. 425). He reviewed Skelly's work on SI 125 and made numerous recommendations and corrections for rewriting it on three different occasions. After the fourth rewrite of SI 125, it was decided that Skelly would be terminated after being given fourteen (14) days notice (Tr. 433-434). After Skelly was terminated his work on the SI 125 disappeared (Tr. 435). Siler had no knowledge on Skelly's last day of work that he had threatened to complain to the NRC or had in fact complained to NRC or the TVA Inspector General (Tr. 487-488). Skelly never told Siler he would go to authorities because of safety. TVA wanted its plant back on line with safe plan and therefore wanted the SI's to be letter perfect knowing NRC would be auditing them (Tr. 484).

    Joel Seven Woods and Raul Estevez who also supervised Skelly's work testified his work on SI's was not satisfactory (Tr. 596, 622). Estevez said he gave Skelly two weeks notice on September 15, 1982 (Tr. 624). He recalled a conversation with Skelly which Skelly tape recorded prior to Skelly's last day (TR 665). In it Skelly said "I am being actually fired as of Friday, that is my last day of work". Woods discussed Skelly's termination with Skelly prior to his last day (Tr. 591).

    James William Calloway of the TVA Inspector General Office testified that when first contacted by Skelly September 24, 1986 on the Inspector General hotline, Skelly said he had been fired (Tr. 388-390). When receiving a second call from Skelly and being told again of his firing he specifically recalled telling Skelly that he previously had said he was fired (Tr. 393).

    Timothy M. Galbreath, Manager of TVA's Employee concern program testified about that program which is available to employees concerned about safety. This program is described in TVA EX-12.

FINDINGS OF FACT

    Skelly testified he was fired after going to the NRC and the TVA Inspector General. Based on all the evidence it is concluded that when Skelly first contacted the NRC he was already aware of the fact that he was being terminated as a contract employee of Westinghouse working for TVA. Siler, Woods, and Estevez all testified that Skelly was given notice prior to his last day of work. Also Calloway with the TVA Inspector General testified that when first contacted on September 24, 1986 Skelly reported he had been fired. Even the fact Skelly tape recorded a conversation with his supervisor, Estevez, in which he said Friday was his last day of work indicates to me that he had some advance notice that he was being terminated. In that tape conversation Skelly stated "I am actually being fired as of Friday". This indicates to me that the conversation took place before Fifty, September 26, 1986, otherwise he would have said "today".

    Skelly also testified that he voiced concerns about safety because of the pressure to produce completed SI's and threatened to go to higher authorities about this undue pressure. His supervisor denied any knowledge of any such threats to go to higher authorities, the NRC or TVA Inspector General about safety concerns, and claims Skelly was terminated because of the quality of his work and failure to produce. The undersigned does not pass judgment on whether or not Skelly's work was in fact satisfactory or unsatisfactory but does conclude that he was in fact terminated solely because his supervisor believed his work was unsatisfactory and not in retaliation for threatening to expose safety violations. His supervisors had every reason to believe that Skelly spent too

much time working on SI 125. Even Skelly's co- worker and friend Vander Schuur had doubts about the accuracy of Skelly's work product and felt that three weeks and not 300 hours, would be a sufficient amount of time to spend rewriting SI 125.

    The complaints which Skelly claims he made to fellow workers and his supervisors about the push to produce did not relate to any specific safety problems. He expressed the opinion that quantity would sacrifice quality, and disagreed with the managements efforts to expedite the reviewing and rewriting of SI's. From the evidence of record, it is very clear that there were many checks and balances by TVA to assure that the SI's were indeed correct (RX TVA EX-9). TVA had every reason to see that the completed SI's were correct, otherwise they would not be able to satisfy NRC and put their plant back in operation. For these reasons it is concluded that Skelly did not by complaining about production pressures engage in the protected activity covered by ERA.

    Skelly's case was based in part on the theory that by pushing production there was always the implication that management wanted the engineers to disregard quality. The fact that Siler spent many hours reviewing SI 125 including having Lane, another TVA employee work on it, negates this implication and shows that TVA was in fact concerned about quality as well as quantity. Mr. Siler testified that TVA wanted the SI's to be letter perfect.

    With regard to the alleged threat communicated to Steve Firshing and John Grun to contact the NRC and TVA Inspector General, there is no evidence that TVA or Westinghouse officials had any knowledge of that threat. In fact Estevez and Siler denied any such knowledge. According to Skelly he made this threat only a short time before he went to the NRC. It is therefore concluded that TVA and Westinghouse officials had no knowledge of this threat and did not consider same when deciding to terminate Skelly's contract.

CONCLUSIONS OF LAW

    The ERA prohibits discrimination against any employee who:

(1) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under [the ERA] or the Atomic Energy Act of 1954, as amended . . . or a proceeding for the administration or enforcement of any requirement imposed under [the ERA] 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 another action to carry out the purposes of [the ERA] or the Atomic Energy Act of 1954, as amended (42 U.S.C. § 5851(a)(1982)].

    The elements of proof in a discrimination claim under Section 5851 are clear. The employee must initially present a prima facie case by showing that he engaged in protected conduct, that the employer was aware of that conduct, and that employer took some action against the employee which was more likely than not the result of the protected activity. The burden then shifts to the employer to proffer evidence tending to prove that there were legitimate motives for the adverse employee action. Once this intermediate burden is met the burden then shifts to the employee to show that the proffered legitimate reasons were pretextual. County v. Arkansas Power and Light Co., No. 87-ERA-10 (Nov. 16, 1987). Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).

    The only way in which Skelly's activities may conceivably have come within the ambit of

protected activity pursuant to Section 5851 is:

(1) If Skelly was fired AFTER he contacted the NRC or the TVA Inspector General's Office, or

(2) If Skelly was fired on account of his safety complaints to TVA or Westinghouse management or to any coworkers.

    As I find that Skelly knew that he was being fired prior to contacting the NRC or the TVA Inspector General's Office, his reports to either of these organizations are not protected activities within the meaning of Section 5851.

    Likewise, I find that the complaints Skelly voiced to his co-workers and supervisors related to the quantity of work Skelly was required to produce. This push to produce clearly was not at the expense of safety and thus no safety issue is involved. It is more than evident that Skelly was fired because his work was perceived as being less than satisfactory.

    As Skelly's internal complaints involved no safety issues, whether internal complaints are protected activity is not at issue before this Court. Quite simply, as Skelly raised no safety issues with his coworkers or supervisors, his activities cannot conceivably be perceived as being protected by Section 5851.

    Even if it was found Skelly had engaged in protected activity by making internal complaints, he failed to show that respondents were aware of those complaints and that his termination was more likely than not the result thereof. Thus complainant as failed to present a prima facie case and complainant's claim is dismissed.

It is ORDERED that Complainant be and hereby is DISMISSED.