Date Issued: JUN 8 1990
87-ERA-00013

In the Matter of

ALESSIO J. DeCRESCI, JR.
    Claimant

    v.

LUKENS STEEL COMPANY
    Employer

Appearances:

    EDWARD HUGH MC GEE, ESQUIRE
       For Claimant

    DOUGLAS D. GOSS, ESQUIRE
       For the Director

Before: FRANK D. MARDEN
    Administrative Law Judge

    This proceeding arises from a complaint filed by Alessio J. DeCresci, concerning his discharge from the employment of Lukens Steel Company (Lukens), Coatsville, Pennsylvania, 19320. The complaint was filed on December 3, 1986 with the Office of Administrator of the Wage and Hour Division, Employment Standards Division, Department of Labor, Room S-3502, 200 Constitution Avenue, N. W., Washington, DC, 20210. This complaint was filed under § 220 of the Energy Reorganization Act of 1974 which is also cited as (42 U.S.C.A, § 5851).

Background

    The Claimant, Alessio J. DeCresci, was hired by the Employer, Lukens, on or about April 28, 1986. He received his notice of lay-off on November 6, 1986. The lay-off was to be effective November 9, 1986 and named Mr. DeCresci and Mr. King to be laid off. Mr. DeCresci and Mr. King were the weld inspectors with the least seniority. The evidence reveals that Mr. DeCresci has had thirteen (13) years experience in the job of weld inspector. The job of weld inspector was the job for which Lukens hired Mr. DeCresci. The record contains warning and suspension notices dated July 23, 1986, August 20, 1986 and October 31, 1986. (DC 5, 7, 11). The record also contains a job performance rating for Mr. DeCresci dated August 8, 1986 in which Mr. DeCresci received ratings of three's and four with a cumulative rate of 3.74 on a scale of 1 to 5, number 5 being the highest rating.

Controlling Law

    The controlling law is 42 U.S.C.A. § 5851. This provides that...

"No employer, including a Commission licensee, an applicant for 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, 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 U.S.C.A. § 2111 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;

(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 any other manner in such a proceeding or in any other action to carry out the purposes of this chapter of the Atomic Energy Act of 1954, as amended (42 U.S.C.A. § 2011 et seq.).

    In this action, Mr. DeCresci claims that he was discriminated against in his employment with Lukens by being discharged, or laid-off, on November 6, 1986. He states that the reasons for his lay-off were his constant encounters with the supervisors of Lukens due to his "overinspection" of the weld products. He states that it was because of these contacts and friction between Lukens and himself, and his threat to go to the Nuclear Regulatory Commission, that he was ultimately laid-off. It is the position of Lukens that Mr. DeCresci was laid-off for the sole reason that they lost their sonarsphere contract with the U. S. Department of Navy and, therefore, it was necessary to reduce their labor force. Lukens further stated that as a result of the loss of this government contract they reduced their labor force to approximately 20% of the November 5, 1986 stength by the end of the year.

    The first issue that must be addressed by this Court is whether the party charged with the discrimination of the Act is, subject to the Act. Lukens states that it is not an employer under the Act except for the fact that it does have a license to practice radiographic practices in the weld products department. (ALJX 15 at TR 338). Lukens further states that the construction of sonarspheres for submarines for the U. S. Navy is not governed by a NRC license and is therefore, not related by the Nuclear Regulatory Commission. Lukens did not cite any case law for this position or address the principle that simply having been licensed by the Nuclear Regulatory Commission is sufficient grounds to be governed by the regulations of the Act. Mr. DeCresci does not specifically address this issue other than to argue at ALJX 15, TR 335 and 336, that he has brought an action under 42 U.S.C.A. § 5851(a)(1) because he was about to file an action under the Act, and, that he in fact did file an action under the Act on November 7, 1986. Mr. DeCresci further states that there was in fact "nuclear stuff involved" and that the "nuclear stuff" was involved in the plant. He stated that there was cobalt and radioactive testing. (ALJX 15 at TR 335).

    42 U.S.C.A. § 5851(a) states that no employer, including a commission licensed contractor may discharge or otherwise discriminate against an employee.... The plain reading of the law demands that all employers including a commission licensee or contractor are subject to the provisions. The plain language does not suggest that they are subject to the law only in certain circumstances and only in those certain circumstances will it be applicable. Furthermore, no cases have been cited to the contrary. Lukens is a licensee. (ALJX 15 at TR 338). Therefore, it is the conclusion of this Court that Lukens is

an Employer under the Act and, is bound by all provisions therein.

    Lukens then argues that if it is subject to the Act, certainly there is no discrimination. However, the bare language of the provision implies that a discharge is, in and of itself, discriminatory. This is obvious in as much as the law states that no employer "...may discharge any employee or otherwise discriminate against...". Therefore, this Court finds that the basic interpretation of the word discrimination is inherent in discharge. The Act itself implies that the act of discharge is discriminatory. Therefore, Lukens has discriminated against Mr. DeCresci by discharging him.

    The next issue that must be addressed by the Court is whether the lay-off of Mr. DeCresci occurred because of participation in a NRC proceeding. In this connection the Claimant states that as a result of his filing the "interplant rejection notices" and the "cause and corrective action reports" (DC 8, 9, 10, 12, 13, 15, 16, and 17) he was considered a "trouble maker" employee and that management was planning to "get rid of" him. In support of this he refers to his warnings or suspension notices dated July 23, 1986, August 20, 1986 and October 31, 1986. (DX 5, 7, and 11).

    Lukens responds that these various "interplant rejection notices" and the "cause and corrective action reports" do not constitute a commencement of an action within the parameters of the Act. The Courts are split on what constitutes a participation in a NRC proceeding and, whether or not the filing of internal reports satisfy that purpose. Lukens states that even if the internal reports do constitute participation, these reports must relate in some way to NRC regulated activities. The only internal reports herein were filed concerning the welds on the sonarsphere for the U. S. Navy submarine. Lukens states that the welds in no way are related to the nuclear power generating facilities on the submarine and thus were not subject to the NRC regulations. Again, Lukens has stated no authority for this position. As we have decided above Lukens is a licensee under the Act and subject to the Act. There is no provision within the Act that states that a licensee is subject to the Act for certain activities and not subject to the Act for other activities. The Act was intended to protect the overall welfare of the people of the United States. The main thrust or purpose of the Act was for the protection of the overall efficient use of atomic energy and protection of the people of the United States. It did not deliniate or eliminate certain portions or certain aspects from

the total operations as being not directly related to atomic energy.

    Therefore, this Court concludes that 42 U.S.C.A. § 5851 protects the quality control inspectors from retaliation based on internal safety and quality control reports. The analogy to Phillips v. Interior Board of mine Operations Appeal is persuasive. 500 F.2d 772 (D.C. Cir. 1974), cert. denied 420 U.S. 938, 95 s. 1149, 43 L. ed 2d 415 (1975). In Phillips the District of Columbia's Circuit Court held that internal safety complaints triggered the protection of the "whistle blower" provisions of the Federal Mine Health and Safety Act, 33 U.S.C. § 820(a)(1). Citing Phillips as authority, Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (1984) held that 42 U.S.C.A. § 5851 protects the quality control inspectors from retaliation based on internal safety and quality control complaints. Id. went on to state that the whistle blower provision of the Energy Reorganization Act is modeled on and serves an identical purpose to the provision in the Mine Health and Safety Act. (Cs. rep. 95-848, 95th Congress, Second Session at 29-1978 U. S. Code Congress and Ad. news at 7303).

    Lukens concedes that the act Mr. DeCresci reported for violation of the badges, was committed by Lukens. Lukens also conceded that this activity would be covered by the Act. Lukens goes on to point out that while the violation concerning the badges was perpetrated by Lukens on the first and second day of Mr. DeCresci's employment, he did not bring it to the attention of the authorities until after his lay-off on November 6, 1986. It appears that the notice of lay-off was dated November 6 to be effective November 9, 1986. It was on November 7, 1986 that Mr. DeCresci filed his complaint.

    Lukens argues that to be a proceeding within 42 U.S.C.A. § 5851(a)(1) the complaint or notice must have been filed or the employer must have been aware that the employee was about to file a complaint. In this connection, Lukens states that it was not aware of any such pending complaint or notification to the authorities concerning the alleged badge violation until after the notice of lay-off had been posted. Their argument is, therefore, that the decision to lay-off Mr. DeCresci was not based in any suit that was "about to be filed". Mr. DeCresci concedes that no suit had been filed but, argues that Lukens was aware that he was about to file a complaint.

    Concerning the specific item of the notification of the misuse of the badges, this Court agrees with Lukens. Inasmuch as Mr. DeCresci had informed no one of his intended notification to the Nuclear Regulatory Commission, or any other such agency, until after his lay-off, it would be impossible for Lukens to be aware of such "action"

on his part until after the decision to lay-off Mr. DeCresci had been posted. However, concerning the remaining interplant rejection notices and cause and corrective action reports, it is the position of this Court that they would be sufficient notice to trigger the requirements of 42 U.S.C.A. § 5851(a)(1). See discussion above.

    The issue then becomes whether or not these interplant rejection notices and the cause and corrective action reports were the basis for Mr. DeCresci's lay-off. Mr. DeCresci states they were, and Lukens states they were not. It is also argued, by Mr. DeCresci, that there may be a dual motive for discharge and, if this is the case, at least one of the motivating reasons for his discharge was his interplant rejection notices, etc. Lukens states that they are aware of the dual motive theory of discharge and consideration must be given to such theory; but, they state that there was no dual motive for discharge. They unequivocally state that there was only one reason for the discharge of Mr. DeCresci and that was the loss of the sonarsphere contract with the Department of Navy.

    Under the dual motive test for discharge, once the employee shows that illegal motive played some part in discharge, the employer must prove that it would have discharged the employee even if he had not engaged in protected conduct. Mt. Healthy City School District v. Dole, 429 U.S. 274. Mackowiak v. University Nuclear Systems, Inc., op seq.

    From reviewing the evidence in the file it is apparent that Mr. DeCresci relies upon his confrontations with management resulting from his submission of interplant rejection notice as a primary basis for his discharge. From reviewing the totality of the file it appears that there is another reason that substantially contributed to the lay-off of Mr. DeCresci. Not only was Mr. DeCresci laid-off on November 6, 1986, but by the end of the year 80% of the total employ within that division had been laid-off.

    Mr. Jennings, superintendent of the machine and fabrications department, testified that he had the ultimate responsibility for the production of the sonarspheres and, that he was responsible for staffing the weld products department. He further stated that although he was responsible for the staffing, he was not a direct supervisor and had no direct supervisory responsibility. That was the responsibility of the immediate supervisor and the foreman. The foreman is Mike Hartz. At ALJX 15, TR 123, Mr. Jennings testified that Lukens had been building sonarspheres for the U. S. Department of the Navy for 30

years. He stated that over that 30 year period they had build 102 and that two others had been built by another company. According to Mr. Jennings, Lukens expected to know by late summer of the renewal of the contract with the U. S. Department of Navy for the continuation of the building of additional sonarspheres. However, no formal notification was received. Mr. Jennings went on and testified that on October 28, 1986 he received a telephone call and "found-out" that the contracts were not going to be renewed. Mr. Jennings then testified at ALJX 15, TR 126, that the following week, the first week in November, he got together with the foreman and discussed the situation and it was at that time that the determination to lay-off individuals was formed. At ALJX 15, TR 127, Mr. Jennings was asked what other factors were considered in the lay-off of employees. The response by Mr. Jennings was that there were no other factors, other than the loss of the sonarsphere contract business. Mr. Jennings stated that it was determined that the first two to be laid-off would be weld inspectors. At ALJX 15, TR 128 Mr. Jennings stated that the notification of who would be laid-off was made by the foreman, Mike Hartz. He also stated specifically that Mr. Hartz' determination was based solely on seniority, which is governed by the union contract. The agreement between Lukens and the United Steel Worker's Union of America was entered as Exhibit L2. Mr. Jennings went on to state that the following week the "conditioners" were laid-off and that in the final week the "welders" were laid-off. He concluded by stating that by the end of the year they were down to 10 men or 20% of the total workforce. He also explained that certain of the men who had over 15 years of seniority were placed in other positions within Lukens. The undersigned Administrative Law Judge notes that at ALJX 15, TR 131 and 132, Mr. Jennings explained that the weld products department was dissolved. He stated that originally it had approximately 15 employees of which eight were weld inspectors such as Mr. DeCresci. He stated that of the eight weld inspectors, seven were affected by the lay-off and that one, the senior man, was transferred to the maintenance welders job.

    From reviewing the totality of the testimony and the evidence submitted in the form of exhibits, there does not appear to be any dispute as to the fact that Lukens lost the contract to manufacture the sonarspheres. It also appears that there is no dispute that by the end of the calendar year 1986 Lukens had reduced the total numbers of employees in that department by 80% and that ultimately that department was abolished. Therefore, it is obvious that Mr. DeCresci was not the only individual discharged.

    It is the conclusion of the undersigned Administrative Law Judge that the evidence supports the position of Lukens that Mr. DeCresci was laid-off for bona fide business reasons. It is concluded that Mr. DeCresci was not laid-off as the result of any discrimination practiced against him because of his actions as an employee against Lukens. It is further concluded that Lukens experienced a loss of the sonarsphere contract and that beginning November 9, 1986 it began to "lay-off" personnel within the weld products department. Mr. DeCresci and Mr. King were the two weld inspectors with the least seniority and, therefore, were the first to be laid-off. The fact that Mr. DeCresci and Mr. King were the first to be laid-off appears to be in accord with the union contract. (EX L-2). The undersigned Administrative Law Judge is not persuaded by any argument to the contrary that Mr. DeCresci was laid-off as a result of his actions, or interactions, with Lukens. This conclusion is supported by the fact that ultimately 80% of the weld products department was "let go" within a period covering November 9, 1986 through December 31, 1986. Furthermore, the uncontroverted facts establish that the entire weld products department was abolished by December 21, 1986. Finally, it is the conclusion of the undersigned Administrative Law Judge that the overall evaluations of Mr. DeCresci were "satisfactory", which indicates that although there may have been some disputes as set forth by Mr. DeCresci, that the overall impression or opinion of Mr. DeCresci by Lukens was, "satisfactory".

    Exhibit DC 23 is entitled "termination notice" and is dated July 10, 1987. This is the termination notice of Mr. DeCresci because he refused a recall offer while on lay-off. Again, this was uncontradicted by Mr. DeCresci.

    Assume hypothetically for the moment that the actions of Mr. DeCresci did contribute, at least in part, to his lay-off. Then the test of the dual motive discharge as set forth in Mt. Healthy would have to be considered. The conclusion in that regard would be that the actions of Mr. DeCresci and the above discussed interactions with Lukens would be of such an inconsequential effect that, when applying the dual motive test to the facts in this case, it would clearly show that the vast majority, if not all the movitation for the lay-off of Mr. DeCresci, would be the loss of the sonarsphere business contract by Lukens. Therefore, the main reason for Mr. DeCresci's lay-off would be the controlling factor under the dual motive principle, and Mr. DeCresci would not prevail.

    The claim for wrongful termination of Mr. DeCresci is hereby DENIED. Accordingly, the claim loss of $14,882.92 plus overtime, raises and the value of benefits, attorney fees and cost, are also DENIED.

       FRANK D. MARDEN
       Administrative Law Judge

Dated: June 8 1990
Camden, NJ
FDM/hb