87-ERA 29

In the Matter of

RONALD COWAN
    Complainant

    v.

BECHTEL CONSTRUCTION
    Respondent

   Ronald Cowan, an electrician formerly employed by Bechtel Construction, brought this action under § 210 of the Energy Reorganization Act of 1974, 42 U.S.C. § 5851 (hereafter the Act) alleging that Bechtel refused to rehire him because he had previously "blown the whistle" on Bechtel. The case was heard on the merits pursuant to a remand order of the Secretary of Labor.

   Bechtel is a contractor engaged by the Pacific Gas & Electric Company (hereafter PG&E) to perform modification and maintenance work in an operating nuclear power plant at Diablo Canyon in San Luis Obispo County, California. Most work at the site is performed by union employees referred by various unions, including Local 639 of the International Brotherhood of Electrical Workers (hereafter IBEW).

   All electrical work performed at Diablo Canyon is governed by the terms of a collective bargaining agreement between Bechtel and several unions including the IBEW. Under the agreement Bechtel has "complete authority and right to ... hire and layoff employees as [Bechtel] feels appropriate to meet work requirements and/or skills

required." GPPMA Article II, 1(c), Ex. R-5.

   Outages of the power plant normally occur twice a year and require temporary increases in the work force. To meet those increased needs, Bechtel employs electricians through the IBEW local. Bechtel has no control over which electricians are referred by the union for hiring. The electricians who are hired are assigned either to the production group or the temporary power group. There are occasional transfers from one group to the other.

   Since 1985 or 1986 Bechtel's electricians were selected for lay-offs and rehiring with the aid of a ranking system called force ranking. The employees are evaluated on safety, attendance, initiative, quality of work, and their professional knowledge. The highest score in any category is 3 and the highest total 15. Safety and attendance ratings are done by the Safety Office and the Time-keeping Office. Rankings in the other categories are done by foremen, and these are reviewed in turn by the general foreman and the superintendent, each of whom has the authority to change them. The rankings are not disclosed to the employees or the union.

   Mr. Cowan is a member of the IBEW. Apparently by choice, in the past Mr. Cowan has worked only sporadically with extended breaks between jobs during which he collected unemployment. After he was first sent to Diablo Canyon by IBEW and hired by Bechtel on July 23, 1984 during construction of the facility, Mr. Cowan complained to that Nuclear Regulatory Commission that he was told to work on the basis of a work order on which some dates were improperly changed. Apparently this complaint led to the firing of a foreman who was rehired some years later. When Cowan was laid off on January 22, 1985, he complained to the U.S. Labor Department under 29 CFR Part 24 alleging that his lay-off was in retaliation for his NRC report. A DOL investigator found merit in Mr. Cowan's complaint. Prior to a hearing by an administrative law judge the dispute was resolved by a settlement agreement whereunder he received $5,775 in back pay and fringes. The agreement provided that Cowan was "eligible for rehire in accordance with applicable referral procedures. However, this acknowledgment is not to be construed as a guarantee of future employment". R 1. Thereafter, sometime in 1985, Cowan was rehired by Bechtel and worked for a time at the Vandenberg Air Force Base. In August 1986 he was again referred by IBEW to Diablo Canyon during a scheduled outage. Bechtel initially refused to hire him ostensibly because of his low ranking. There is no clear record what that ranking was, but there was some credible testimony that it

was 9. However when Cowan complained to management, he was hired two days later. Bechtel says it hired him that time despite the low ranking because it wished to show good faith under the settlement agreement. On the day he was hired, Mr. Cowan filed a DOL complaint which was later dismissed. During this period of employment Mr. Cowan made another complaint to the NRC in which he accused a PG&E supervisor, not Bechtel's, of refusing to provide him a lead blanket. The complaint resulted in an inspection by the NRC which found no violations or deviations. About a week after he was laid off at the end of the outage, Mr. Cowan filed a third DOL complaint which was also dismissed.

   Mr. Cutler, the site manager, credibly testified that prior to the outage in April of 1987, he, electrical superintendent Doran, and another executive decided that in view of an anticipated large number of available IBEW electricians, people with a prior ranking below 10 would not be hired. When the outage began around April 3, 1987, 18 electricians, Mr. Cowan among them, were referred to Bechtel by IBEW. Eleven had a ranking of 10 or more, four had no prior ranking, and two, Moorehead and Sivula had 9. All except Mr. Cowan were hired. Bechtel did not ask IBEW to send a replacement for Mr. Cowan. At the time he was rejected, computer records showed Cowan ranked 8. The superintendent and Cutler justified their rejection of Cowan to the DOL investigator on that basis. In fact Cowan's ranking should have been 9.

   Mr. Cowan argues that the mistaken 8 ranking was not innocent, and that he should have been hired like the other two 9s. Bechtel explains that the rankings of both men were assigned to them by the temporary power group which rated more strictly than the production group which rated Cowan. Bechtel says that in the case of Moorehead, there was an additional factor; he was the president of the electricians' local. Bechtel therefore contends that it rejected Mr. Cowan for legitimate business reasons, i.e. pursuant to its prior decision to reject low ranked people. It points to the unchallenged fact that between April 1986 and March 1990 Bechtel rejected 21 other electricians with a 9 rating, four with rankings below 9, and even one with a 10. There was no showing whether other 9s beside Moorehead and Sivula had been hired. The hiring of some unranked people seems to have been customary in order to give new people a chance to prove themselves.

   Complainant questions the propriety of Bechtel's ranking system, suggesting that to insure fairness Bechtel should give the

rankings to the union. It appears to me that that issue is best left to collective bargaining. It is also unnecessary to decide in this case whether the ranking system was the best that could be devised or that it was well administered. Suffice it to say that it is pretty clear to me that the ranking system was instituted and used by Bechtel for proper business reasons, and that it was generally used as a proper aid in the making of its employment decisions. The real issue here is whether the ranking system was unfairly skewed to hide discrimination against Mr. Cowan, as he alleges. I have concluded that it has not.

   Complainant raises several peripheral questions about when the ranking system was commenced, when he was first ranked, and the reasons for Bechtel's initial rejection of him in August 1986. I find these issues of dubious relevance here. Bechtel's witnesses say rankings were given informally since 1985, and formally since 1986, and that some records of the earlier ratings are no longer extant. I credit this testimony. Contrary to Complainant's suggestion, the fact that ranking records prior to 1986 could not be found by the time he attempted to discover them several years later, does not raise and inference in my mind that Bechtel destroyed them to hide discrimination. It is of little significance here whether Cowan was first ranked before the fall of 1986 because Bechtel declined to hire him in April 1987 on the basis of the rating in the fall of 1986. What evidence there was tended to show that his prior rating was also 9. The initial decision to reject Cowan in August of 1986 and Bechtel's decision two days later to hire him after all, strikes me as a neutral fact. It can be viewed as evidence of good faith and nondiscrimination in 1986, rather than showing that Bechtel was trying to get rid of him since 1986, as Cowan suggests.

   The fact that for a time the computer printout showed that Cowan had an 8 does not suggest to me a sinister plot, as he alleges. First of all the erroneous 8 first appeared on a January 27, 1987 printout, a couple of months before Bechtel had any reason to expect Cowan and thus to falsify his ranking. The April 13, 1987 printout contains numerous other penned in corrections, bearing the same initials as the correction of Mr. Cowan's score. I am convinced that if Bechtel's managers were inclined to falsify records to justify rejecting Cowan, they would have done it more cleverly than by incorrectly recording on a computer his foreman's rankings which were well documented in paper records which they kept. Cutler and Doran did not strike me as fools, who, while acting with the guidance of their lawyers, would consciously lie to

an investigator that Cowan had an 8, while preserving records showing that was wrong, and later correct the computer printouts. Moreover I found no indication that Cowan was such an unbearable burr under Bechtel's saddle that it's management would risk being compromised to be rid of him. It appears to me that at most Cowan's NRC complaints, especially the second one against PG&E, was no more than minor nuisance to Bechtel.

   The ranking of Mr. Cowan which is germane here was done in October of 1986 by his foreman Dennerlein who no longer works for Bechtel. His testimony struck me as that of a forthright and very credible man, with a mind of his own and little interest in workplace "politics". Early on he declared in writing to the DOL investigator and very credibly testified here that at the time he ranked Mr. Cowan he was unaware of Cowan's complaints to NRC, and besides he approved of such complaints. He had been a union electrician for 35 years and the last two years he has been working for another employer. In his view Mr. Cowan was a bad employee and the worst electrician in his crew. He wrote and testified that he gave Mr. Cowan a zero for initiative because he thought complainant was a shirker and a laggard shunned by other electricians because he lacked skills and did not pull his own weight.

   Complainant argues that the zero Dennerlein gave him was unheard of and therefore inherently unfair and improper, and an indication that Bechtel targeted Cowan. But, while the evidence on this point was entirely clear, it appears that zeros were given to other employees. There was testimony that a manual (apparently not read by general foreman Michel) did not mention a zero ranking, and that some supervisors thought a score of 1 meant average as the manual said, while others thought it below average. I see little significance in that discrepancy. Whether 1 was analogous to the more familiar student's C or a D, it appears to me a zero, like an F, was not unreasonable for someone unacceptably poor in a given category, even if the manual did not explicitly mention it. Therefore, while a zero was doubtless rare among highly paid, experienced union electricians, I do not infer that his foreman, who struck me as an honest and fair man, acted in bad faith simply because he gave Mr. Cowan a rare zero.

   Mr. Dennerlein credibly testified that no superior instructed him how to rank Mr. Cowan, that he was not influenced by Mr. Cowan's reputation as a troublemaker or complainer, that he had no animosity or ill will towards Mr. Cowan, and that he rated him as fairly as he

knew how in each category. He persuaded me.

   The man next up in the chain of authority, general foreman michel also testified. This witness struck me as less forthright and considerably less credible than Dennerlein. He quit Bechtel because he was unhappy about a demotion, and he appeared to be in the complainant's corner. He testified that he was surprised by the zero in initiative given to Cowan because he had not seen it before. He thought that Mr. Cowan was a "hot potato" because of his NRC complaints, and that he felt his job would have been in jeopardy if he changed the zero. But he also said that although he had the authority to do so, he did not change the rating because he respected the foreman's judgement. While he said some contradictory things in his deposition, Mr. Michel declared that if he felt that the zero was unfair or due to retaliation, he would have risen to the occasion and corrected it. Michel also gave testimony implying that Bechtel has manufactured computer records of rankings of other electricians because he remembered in 1991 that some men he supervised in 1986 were not ranked at all. Having to choose between relying op regularly appearing ranking printouts for more than 300 employees and the memory of Mr. Michel which struck me as too good on some points and too vague on others, I put credence in the documents. I find no credible evidence suggesting that Bechtel either falsified or manufactured any records of employee rankings. Moreover, because Michel never ranked electricians in the temporary power group when he was a foreman there, I give little weight to his testimony that the temporary power group ranked people no less stringently than the production group.

   At bottom, Mr. Michel denied having any knowledge or information that Dennerlein rated Mr. Cowan for some ulterior or improper reason. Thus it appears to me that, Mr. Michel's testimony, however flawed, ultimately reinforced Bechtel's central point, i.e., that the foreman's rating was done in good faith, and was not influenced by any intent or desire to discriminate or retaliate. Because this came from a generally adverse witness, it was all the more telling.

   Superintendent Doran testified that he too did not change the foreman's ranking, and knew of no impropriety in the ranking process. On the whole I found him and his superior, Mr. Cutler, credible.

   Thus it appears that Mr. Cowan's second blow on the whistle was

against PG&E and not Bechtel. There is no evidence to show or suggest why Bechtel would have been particularly upset about a complaint to NRC about PG&E. There is no evidence that the foreman's rating of Cowan was other than in good faith. All the evidence seems to point the other way; that the foreman was acting freely, without knowledge of Cowan's prior whistleblowing, and without any improper motive. The ranking was was not changed by his superiors, although at least one of them was presumably sympathetic to Cowan even at the time they were given. There was no evidence that in retrospect the low ranking was patently unfair. Therefore, I feel compelled to find that Mr. Cowan's 9 ranking was fairly arrived at in the usual course of business and was not influenced by any consideration of past whistleblowing.

   The rhetorical question complainant asks most vehemently is why on April 3, 1987 Bechtel hired two other men with a score of 9 but rejected him. Cutler, who made the decision, and Doran, answered that to the DOL investigator on April 30, 1987, i.e. that Cowan ranked 8, lower than all the others in the group. The January 27, 1987 ranking printout shows Sivula and moorehad as 9s, and Cowan as 8. Therefore, though Bechtel does not stress the point, it appears to me that Cowan was rejected on April 3, 1987 on the mistaken assumption that he ranked 8. Mr. Cowan argues the 'mistake" was intentional, but I find no persuasive evidence which raises that inference. The mistake first shows up on a printout dated a couple of months before Betchel had any reason to expect that Cowan would be sent by the union. Because of that, and because complainant has presented no other evidence which might suggest falsification of records (other than the insinuations of Michel which I do not credit), I cannot conclude the mistake was intentional. Complainant suggests no other link between his protected activity and the mistake, and I find none.

   Bechtel's decision to dip below 10 for the president of a union local with whom it had to do continuing business, while not quite noble, was a reasonable business move. To my mind it does not follow that refusing to make a similar exception for Cowan, especially when they thought he ranked 8 and Moorehead 9, shows intent to discriminate on account of his whistleblowing.

   Bechtel articulates a legitimate, non-discrimatory business reason for rejecting Cowan yet hiring the other two 9s even in light of Cowan's correct rating. I credit the testimony that the temporary power group were tougher graders than the group which

ranked Cowan. Therefore, to continue the school analogy, Moorehead's and Sivula's 9s were really 9+s, while Cowan's was a 9 or a 9-.

   The overarching fact here, to my mind is, that in the year before Mr. Cowan was rejected and in the three years thereafter, Bechtel rejected 21 other electricians with the same score of 9, and only Moorehad and Sivula who had only a 9 were hired. Thus Mr. Cowan was treated no worse than 90% of the other 9s over a four year period. The hiring of only two 9s, in view of the rejection of 21 others, does not raise an inference in my mind that Bechtel rejected Cowan because he complained to NRC. I find no other persuasive evidence which suggests to me that when it refused to rehire Mr. Cowan, Bechtel was motivated by other than legitimate business considerations. In arriving at this conclusion, I have given weight to the fact that Cowan's most recent NRC complaint was against PG&E and not Bechtel. I have concluded that the prior NRC complaint made in January of 1985 must have been a faded and thus a less irritating memory in Bechtel's mind by the time they rejected him more than two years later. I am impressed by the fact that Bechtel made the decision not to hire anyone ranked lower than 10 without regard to Mr. Cowan, before it had any way of knowing that Mr. Cowan would be referred by the union on April 3, 1987. I find it also significant that Bechtel did not request a replacement for Cowan. Given all these circumstances, I am not persuaded that the likely reason for Bechtel's rejection of Cowan was his whistleblowing.

   The parties do not appear to disagree about the applicable law. Complainant has the burden to make a prima facie showing that he engaged in protected conduct of which Bechtel was aware, that Bechtel took an adverse action against him, and produce evidence which raises an inference that the protected conduct was the likely reason for the adverse action. Cohen v. Fred Mayer, Inc., 686 F.2d 793 (9th Cir. 1982). I find that Complainant has failed to satisfy the last requirement. Moreover, I conclude that if Complainant were to be viewed as having raised an inference of probable improper motivation by Bechtel, Complainant has, in any event, not met his ultimate burden of persuasion that Bechtel refused to rehire him because of his protected whistleblowing. Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); McDonnell Douglas Corp., v. Green, 411 U.S. 792 (1973).

   For the above reasons, it is recommended that this complaint be dismissed.

       ALEXANDER KARST
       Administrative Law Judge

Dated: AUG 09 1991
San Francisco, California