Date Issued: AUG 28, 1989

88-ERA-1
87-ERA-11
87-ERA-36

W. Allan Young,
    Complainant

    v.

Philadelphia Electric Company and
E. H. Hinds Company,
Respondents

W. Allan Young,
    Complainant

    v.

Philadelphia Electric Company,
    Respondent

W. Allan Young,
    Complainant

    v

Philadelphia Electric Company,
    Respondent

David K. Colapinto, Esquire
    For the Complainant

Troy B. Conner, Esquire
Robert M. Rader, Esquire
    For the Respondent

Before: FRANK J. MARCELLINO
    Administrative Law Judge

I. Statement Of The Case

    This proceeding arises under Section 210 of the Energy Reorganization Act of 1974, 42 U.S.C. § 5851, and the Secretary of Labor's implementing regulations at 29 CFR 24. The three consolidated cases before me involve three different claims by William Allan Young (Mr. Young), the Complainant, concerning his change in security status by Philadelphia Electric Company (PECo), the Respondent. The Complainant alleges that he was discriminatorily denied unescorted access to the Peach Bottom Atomic Power Station (Peach Bottom) which is operated by its part-owner PECO. PECO denies that Mr. Young's alleged protected activity motivated its decision to restrict the Complainant's access to Peach Bottom. Rather, PECO contends that their decision to restrict Mr. Young's access was based on the company's knowledge of Mr. Young's past work experience and criminal charges which were pending against Mr. Young when his security status was restricted.

    Case No. 88-ERA-1 involves a complaint filed by Mr. Young against E. H. Hinds, a subcontractor to General Electric, and PECo. Mr. Young claims that he was discriminatorily denied access to restricted site areas on October 15, 1985 because E. H. Hinds had failed to obtain security clearance for the Complainant. Prior to the hearing, the Complainant and E. H. Hinds entered into a settlement agreement which I approved in my Order issued January 6, 1989 subject to the agreement's submission and acceptance by the Secretary of Labor with this recommended Decision and Order. PECO was also a party to this dispute and its liability will be assessed in this recommended decision.

    Case No. 87-ERA-11 involves a complaint filed by Mr. Young against PECO alleging that on October 14, 1986, the Complainant was discriminatorily denied access to work.

    Case No. 87-ERA-36 involves a complaint filed by Mr. Young against PECO alleging that on May 7, 1987 Mr. Young had to work outside of the secured areas of Peach Bottom because his security was being processed.

    A hearing was held in Harrisburg, Pennsylvania before the

undersigned administrative law judge on January 31, 1989, February 1 & 2, 1989, February 27 & 28, 1989, and March 1, 1989 at which time I received evidence and heard testimony from both parties. At the hearing the issues developed as follows:

1. Did Respondent act unlawfully when it restricted the unescorted access of Complainant?

2. If so, to what remedy is the Complainant entitled?

    Simultaneous post hearing briefs were received from both parties in a timely fashion and considered in the formulation of this recommended decision.

II. The Statutes Involved

    Section 210 of the Energy Reorganization Act provides in relevant part:

No employer, including a Commission licensee, an applicant for a Commission license 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, conditions, or privileges of employment, because the employee (or any 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 chapter or the Atomic Energy Act of 1954, as amended [42 USCA § 2011 et. seq.] or a proceeding for the administration or enforcement of any requirement imposed under this chapter or the Atomic Energy Act of 1954, as amended . . .

42 USC § 5851(a)

III. Preliminary Matters

    At the close of the hearings on March 1, 1989, I held the record open until March 17, 1989 to permit the receipt of exhibits unavailable at the hearing. On August 3, 1989 Complainant filed a motion to augment the record. The

Complainant contends that the record should be reopened to allow for the submission of Complainant's Exhibit 35 which is a two- page memorandum entitled "Report of Investigation." Complainant argues that his former attorney Bruce E. Cooper, refused to introduce this exhibit despite the Complainant's insistence, and that this exhibit establishes that the Respondent was aware of Mr. Young's protected activity. Mr. Cooper represented the Complainant at the hearing but his services were terminated prior to the issuance of Complainant's post-hearing brief due to this and other disagreements between Mr. Young and Attorney Cooper. Mr. David Colapinto, Esq. is currently representing the Complainant.

    The Respondent filed a timely response to Complainant's motion to augment the record. PECO argues that Complainant's Exhibit 35 was available prior to the close of the record and that this exhibit standing alone is not material to the issues in this proceeding. Thus, justice does not require that the record be reopened.

    I agree with the Respondent and deny Complainant's motion to augment the record. The Complainant alleges that Complainant's Exhibit 35 establishes a previously undisclosed fact central to the litigation and that justice requires this document's introduction. After a careful review of the record, I find that Complainant's Exhibit 35 does not establish a new undisclosed fact. Nothing in the memorandum comprising Complainant's Exhibit 35 establishes that PECO received any Department of Labor correspondence prior to the Complainant's change in security clearance. Thus, I conclude that the special circumstances needed to augment the record have not been established and the Complainant's motion must be denied.

IV. Statement Of Fact and Conclusions

A. PECO was required by the Nuclear Regulatory Commission to enforce security clearance regulations at Peach Bottom.

    Robert Weindorfer, PECo's Director of Nuclear Plant Security, testified as an expert in nuclear power plant security at the hearing (Tr 1065, 1078). Mr. Weindorfer testified that PECo maintained a physical security plan which was required and approved by the Nuclear Regulatory Commission (Tr 1067-68, 1078- 1080, Respondent's Exhibit 1). The security plan approved by the

Nuclear Regulatory Commission included a employee screening program "to assure that persons granted unescorted accesses to the nuclear facilities are reliable and trustworthy" (Tr 1110- 1111, Respondent's Exhibit 12).

    As part of the security program at Peach Bottom, a number of security codes are maintained. "Code 911 indicates that PECO has obtained derogatory information concerning an individual and that that individual will be denied unescorted access until a full background check has been conducted. Thus, PECO is required to deny unescorted access to Peach Bottom if an individual's conduct, including prior employment, casts doubt upon his reliability and trustworthiness. A Code 9 does not mean that the individual is permanently barred from the site (Tr 1092), and PECo's security plan does not require PECO to advise a contractor or employee that unescorted access clearance has been withdrawn (Tr 1101).

B. Mr. Young filed safety complaints with the Nuclear Regulatory Commission, Hake and Gapco.

    The Complainant, Mr. Young, has worked in the atomic power industry in construction, piping and welding for approximately 25 years (Tr. 435). While at Peach Bottom working for Frank W. Hake Company (Hake) in May and June 1983, Mr. Young became concerned about the radiation level at his work site. Mr. Young brought his concerns about inadequate shielding to Hake management (Tr 439). Mr. Young then discussed his radiation concerns with David Collins, a health physicist for the Nuclear Regulatory Commission (Tr. 24, 27-28, 43, 448). In June 1983, Mr. Young was fired by Hake (Tr 450).

    In May 1984 Mr. Young was referred to Peach Bottom as a general foreman for Gapco (Tr 452). Mr. Young informed Gapco management of his safety concerns over his finding of an insufficient number of cutting operators (Tr 456). Mr. Young also raised concerns about the inadequate lighting and scaffolding on this job (Tr 461-462, 685-686). On June 26 and July 6, 1984 the Complainant attended ALARA meetings where he expressed his concerns about PECo's failure to keep their commitment to keep occupational radiation exposure as low as reasonably achievable (ALARA) (Tr 469). On or about July 19, 1984, Mr. Young was laid off by Gapco for unsatisfactory performance (Tr 483).

C. Reasons for PECo's withdrawal of unescorted access in October 1984.

    On October 29, 1984 PECO withdrew Mr. Young's unescorted access privileges by changing his security clearance to a Code 9. As stated previously, a Code 9 bars an individual from access from a site until a full background check has been completed. In September 1984, Mr. John Austin, modification superintendent for PECo, was informed that Mr. Young, a contractor's employee, had displayed behavior which reflected untrustworthiness and unreliability (Tr 62-64). Mr. Young never worked as a PECO employee (Tr 290). Austin learned of Mr. Young's untrustworthiness through discussions with Mr. Young's supervisors at Chicago Bridge and Iron (Tr 66, 98). Additionally, Austin received in late September or early October 1984 a memorandum dated July 27, 1994 from D. H. Sordahl, the Gapco superintendent, which further substantiated Mr. Young's unreliability (Tr 97-98, 113, Respondent's Exhibit 14). The Sordahl Memorandum stated:

Allen was almost impossible to talk to, as he would interrupt constantly and would begin talking about something completely different. He seemed to be trying for attention all the time. He was very big on rumors, it got to the point that I told him in front of his steward that we had enough actual problems to worry about, and that I didn't want to hear any more rumors. Allen is very loud, especially when he laughs, which is most of the time. Any time he would find out that either PECo or CB&I had a problem, he would hoot and laugh as loud as he could. I talked to him and tried to explain that their problems were ours also, and that laughing at them could cause my company a lot of problems. He agreed and seemed to quiet down for awhile, but didn't stay quiet long. When Allen told me of his previous problems, he made a point of telling me Mr. Young was on the job here and that I had not seen Allen Young--- yet. He made it clear he could be a lot of problems as the Allen Young. (Respondent's Exhibit 14, p.1)

    Mr. Sordahl concluded in this memo that Young simply "lost his credibility as a leader." (Respondent's Exhibit 14, p.3) Austin also obtained unfavorable information about Mr. Young from

the Frank W. Hake Company. Complainant was described by Hake as a unstable employee who took pleasure with the problems that PECO and CBI had at the site (Tr 98, 118-119). Austin also received a newspaper article indicating that Mr. Young had been arrested for the sexual abuse of a young girl. (Tr 101, 380-381, Respondent's Exhibit 17A).

    Although Young's disruptive conduct with previous employers was the definitive reason for the change in Complainant's security status, Austin felt that the felony charges against Mr Young had to be resolved before Mr. Young's unescorted access was reinstated (Tr 104). After Austin had collected this information on Mr. Young, on October 29, 1984, he met with the Chief Security Coordinator for Peach Bottom, Samuel Tharpe, and with the plant superintendent, Richard Fleischmann to discuss whether Mr. Young should be excluded from the site (Tr 121-122, 159). Austin was concerned about the fact that the Complainant had been reported unreliable by two different companies (Tr 159). On October 29, 1984, Tharpe changed Mr. Young's security classification to a Code 9 (Tr 160-161, Complainant's Exhibit 2). Tharpe entered the Code 9 as a designation to "flag" security that Mr. Young was an individual who was not permitted unescorted access to the plant until further investigation (Tr 162, Respondent's Exhibit 4 at p. 4). Mr. Young's Code 9 remained in place until 1987 because no contractor seeking to employ Mr. Young had until 1987 conducted the background investigation necessary to remove the Code 9 (Tr 166).

D. Mr. Young was denied access to Peach Bottom despite his hiring by Hinds and Catalytic as a result of PECo's withdrawal of unescorted access.

    On or about October 15, 1985, Mr. Young was referred to Peach Bottom for a position with Hinds (Tr 671-672). The contractor, Hinds, had no problem hiring Mr. Young (Tr 409). However, PECO security would not give Mr. Young the clearance to enter the work site (Tr 409). On or about October 14, 1986, Mr. Young was referred to a position with Catalytic at Peach Bottom (Tr 673). Mr. Young was pulled out of a training class later that day because he lacked security clearance and thus was not eligible for hiring (Tr 673-674). On or about May 7, 1987, Mr. Young was referred to Peach Bottom again to work for Catalytic (Tr 677). Mr. Young was still unable to obtain a security clearance and was forced to stay in the security area (Tr 677).

The Complainant was eventually laid off (Tr 678). On June 15, 1987, PECO found, after conducting a review of the Complainant's overall employment history, that a sufficient basis existed to remove Mr. Young's Code 9 (Tr. 206, 324-325, 327-329, 338).

E. The Prevailing Law

    In order to establish a prima facie case of discrimination under Section 210 a complainant must satisfy a six-part test:

(1) that the party charged with discrimination is an employer subject to the Act;

(2) that the complainant was an employee under the Act;

(3) that the complaining employee was discharged or otherwise discriminated against with respect to his or her compensation, terms, conditions, or privileges of employment;

(4) that the employee engaged in "protected activity";

(5) that the employer knew or had knowledge that the employee engaged in protected activity; and

(6) that the retaliation against the employee was motivated at least in part, by the employee's engaging in protected activity.

See, Deford v. Secretary of Labor, 700 F.2d 281, 286 (6th Cir. 1983); Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159, 1162 (9th Cir. 1984).

    Only when all of these elements are met does the burden of persuasion shift to the employer to show by a preponderance of the evidence that it would have reached the same decision without the protected activity.

    In my Order denying respondent's motion to dismiss dated February 4, 1988, I found that PECO is an employer and the Complainant an employee under the terms of the Act. In my Order I indicated that after the record was fully developed my position regarding whether an actual employer/employee relationship existed could be altered.

    PECo exerted considerable control over the Complainant's work activity in their enforcement of the Nuclear Regulatory Commission's regulations which require a licensee to maintain strict control over access to protected and vital areas of a nuclear power plant. The term "employee", although not defined by the Energy Reorganization Act, has been interpreted in a body of case law stemming from the National Labor Relations Act which the Energy Reorganization Act was patterned after. See, S. Rep. No. 848, 95th Cong. & Admin. News 7303. When interpreting the National Labor Relations Act, Courts have defined the term "employee" broadly. Both Acts share the broad, remedial purpose of protecting workers from retaliation based on their concerns for safety and quality. C.f., Donovan v. Stafford Construction Co., 732 F.2d 954 (D.C. Cir. 1984). Thus, I conclude based on the purpose of the Act and the existing case law that the Respondent is an employer and the Complainant an employee within the meaning of the Energy Reorganization Act.

    The Secretary of Labor has continuously given a broad interpretation to the scope of protected activity. Employee complaints to management are considered protected activity. See, e.g. Poulos v. Ambassador Fuel, 86-CAA-1 Decision of SOL (April 27, 1987); Kansas Gas & Electric v. Brock, 780 F.2d 1505 (10th Cir5. 1985), cert. den. 106 S.Ct. 3311(1986); Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159, 1163-1164 (9th Cir. 1984). Thus, I find that the Complainant did engage in protected activity. The evidence in the record is undisputed that the Complainant brought his radiation over- exposure concerns to the attention of David Collins, a health physicist for the Nuclear Regulatory Commission (Tr 24, 27-28). Additionally, Mr. Young attended meetings on June 26 and July 6, 1984 concerning PECo's commitment to keep occupational radiation exposure as low as reasonably achievable (ALARA) (Tr 469) and Mr. Young reported safety problems to his employers, Hake and Gapco, in 1983 and 1984 respectively (Tr 436-438, 456-459).

    The evidence of record, however, does not support a finding that the employer had actual knowledge that Mr. Young had engaged in protected activity. Without prior knowledge, PECo's decision against Mr. Young could not have been motivated by the protected activity and thus, PECo's conduct would not be prohibited under the Act.

    Mr. Young failed to prove that the persons at Peach Bottom

responsible for withdrawing his unescorted access authorization, the plant superintendent, Richard Fleischman, the plant's security coordinator, Samuel Tharpe, and modification superintendent, John Austin, had any prior knowledge of his safety complaints. At the hearing, I had the opportunity to observe Fleishman, Tharpe, and Austin, and I find their testimony to be fully credible. Each testified that they had no knowledge of Mr. Young's protected activity when the decision was made to change Mr. Young's security clearance (Tr 727, 234-235, 70, 109- 113, 124-125.)

    The evidence of record clearly establishes that the Respondent had a duty to screen contractor's employees under the Nuclear Regulatory Commission's regulations and that these requirements necessitated that all persons who are to have access to the unescorted areas of the plant be trustworthy and reliable. The evidence of record clearly supports PECo's position that Mr. Young's past work record made his reliability and trustworthiness suspect. Mr. Young's previous employers' recommendations and pending criminal charges gave PECO significant reasons to worry about Mr. Young's reliability. PECO was thus compelled to alter Mr. Young's security status in order to maintain the safety of the nuclear power facility and remain in compliance with the nuclear regulatory commission's regulations.

V. Conclusions

    Since the Complainant has failed to establish a prima facie case, a determination of the correct measure of damages and the reasonableness of Complainant's attorney's fees is unnecessary.

VI. Recommended Order

    It is respectfully recommended to the Secretary of Labor that the three separate complaints against PECO be DISMISSED and DENIED, and that the voluntary agreement between Mr. Young and E. H. Hinds be APPROVED.

       FRANK J. MARCELLINO
       Administrative Law Judge

Washington, D.C.

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