DATE: October 11, 1988

CASE NO: 87-ERA-0044

IN THE MATTER OF

ROY EDWARD NICHOLS
    Complainant

    v.

BECHTEL CONSTRUCTION, INC.
    Respondent

Arthur W. Tifford, Esq.
1385 Northwest 15th Street
Miami, Florida 33125
    For the Complainant

William F. Hamilton, Esq.
Holland & Knight, Esquire
1200 Brickell Avenue
Miami, Florida 33101
    For the Respondent

BEFORE: E. Earl Thomas
    District Chief Judge

   This proceeding arises under the Energy Reorganization Act, Public Law 95-601, Section 210, 42 U.S.C. § 5851, which contains employee protection provisions, commonly referred to as whistleblower provisions. They provide that an employer is prohibited from discharging or otherwise discriminating against any employee who has engaged in protected activities.

   The Employment Standards Administration, Wage and Hour Division, United States

Department of Labor, conducted an investigation and made a preliminary determination that the Respondent, Bechtel Construction, Inc. ("Bechtel") violated the provisions of Title 42, United States Code, Section 5851, and certain provisions in Title 29, Code of Federal Regulations, Part 24. Specifically, Bechtel was determined to have discriminated against the Complainant, Roy Edward Nichols ("Nichols") by terminating him from employment at the Turkey Point Nuclear Plant, and that the discrimination arose because he had raised issues under the Energy Reorganization Act, Public Law 95-601. Bechtel requested a formal hearing on this determination and a hearing was held before the undersigned Administrative Law Judge from October 15, 1987 through November 5, 1987.

   The following findings of fact and conclusions of law are based upon the entire record, arguments of the parties, applicable statutes, regulations, and case law.

   Bechtel is a contractor at the Turkey Point Nuclear Power Facility (the "facility" or "Turkey Point") at Florida City, Florida. Turkey Point is owned and operated by the Florida Power and Light Company ("FPL") which is licensed to operate the facility by the Nuclear Regulatory Commission ("NRC)".

   Turkey Point was built by Bechtel for FPL, and since the completion of construction Bechtel has maintained an aftercare or "back-fit" presence, providing support and maintenance at the facility.

   Approximately every eighteen months the nuclear units at Turkey Point are shut down for refueling, maintenance and general repairs. These periods are called refueling outages, and may last from several weeks to several months depending upon the work required. An outage is a period of increased work for Bechtel involving increased

manpower, overtime, and week-end work for all crafts. To meet the demands for, any outage, Bechtel hires numerous workers in varying crafts to perform the necessary work.

   Turkey Point Unit #3 was scheduled for a refueling outage in March of 1987. Shortly prior to that Unit coming down, it was discovered that an unscheduled outage for Unit #4 was also necessary. Thus, the Spring 1987 outage would require a large build-up of craftsmen.

   As part of the Spring 1987 crafts build up, Bechtel determined that an additional carpenters crew was required for work inside what is known as the Radiation Control Area ("RCA"). The RCA is a large area which includes the containment units and numerous buildings, facilities, and the grounds.

   The General Foreman ("GF") of Bechtel carpenters during the 1987 outage was Larry Williams ("Williams"). The then existing carpenters crew working specifically in the RCA was headed by its foreman David Trantham ("Trantham"). Williams and Trantham discussed the formation of a new carpenters crew to meet the need of additional work inside the RCA as a result of the double outage. Trantham recommended and Williams agreed that the foreman of the new carpenters crew would be John Wright ("Wright"). Wright was selected because of his numerous years of experience, his attitude, and his knowledge of work procedures inside the RCA.

   The RCA is supervised and controlled pursuant to Commission guidelines and regulations. All work and activity in the RCA is prescreened by the licensee or its contractor to determine the amount of possible exposure, the necessary protective clothing, and the equipment for such work assignments. Each work activity receives a Radiation Work Permit ("RWP") which provides and identifies necessary information with respect to

clothing and equipment. The RWP is a single 8" x 11" sheet of paper which provides its information in a series of checked or unchecked blocks. There blocks correspond to which equipment or clothing should be worn for the designated work assignment and activity.

    After Williams and Trantham determined the Wright would be the foreman of the new RCA carpenters crew, it became necessary to fill the crew with workers. This is done by transferring carpenters from other crews or through "new hires." New hires are carpenters hired during an outage who may be referred to the job from the union hall.

   One of the requirements of all persons who work in the RCA is to attend and pass a short three-day course at what is known as "Red Badge School". The course takes place at the facility, and instructs the craft workers on procedures inside the RCA.

   Because of the build-up due to the double outage, Williams had some difficulty in locating Red Badged carpenters from the union hall to hire onto Wright's new crew. Williams thus looked to his other carpenter crews for persons to transfer to the new crew.

   Greg Lilge ("Lilge") was the foreman of the carpenters crew that principally worked outside the RCA at Turkey Point. Williams approached Lilge and asked for a carpenter to be transferred to Wright's crew. He suggested that a carpenter named Russ Smith be transferred.

   All journeymen carpenters on Lilge's crew had attended and passed the three-day Red Badge course. Rather than agreeing that Russ Smith be transferred, Lilge asked Williams to accept Nichols.

   Nichols had been working for Bechtel at Turkey

Point for approximately thirty-one months. Lilge for the past number of months, however, had been having what he described as an attitude problem with Nichols.

   In the months prior to Williams' request for a carpenter to be transferred to Wright, Lilge had found that Nichols did not show the same enthusiasm he had previously shown. Nichols was resisting some of Lilge's instructions and criticizing certain of Lilge's decisions as to who would take which work assignments. Although Nichols' behavior did not rise to the level of insubordination, Lilge was dissatisfied with Nichols' attitude. He recommended to his general foreman, Williams, that Nichols be laid off in the next reduction in force as the outage came to an end.

   Lilge thus asked Williams to transfer Nichols to Wright's crew. It is common experience at Turkey Point for a foreman, when responding to a request for a transfer, to select the worker on his crew with which he is least satisfied. Lilge did not expect, desire or anticipate Nichols' return to his crew. Nichols was transferred to Wright's crew on March 10, 1987.

   Wright was not fully satisfied with Nichols' performance either. Nichols was frequently late getting dressed out and worked slowly on a number of job assignments.

   Trantham also observed that Nichols' work was taking somewhat longer than expected. His work and attitude was not cause for him to be fired, especially due to Bechtel's manpower needs. Nichols, however, continued to exhibit the attitude problems that had caused Lilge's dissatisfaction with him.

   On or about April 30, 1987, Williams approached Wright and told him that as part of the reduction in force which had commenced on April 10, 1987, Wright should select one of his carpenters

to be laid off. Once the general foreman is informed by his superiors that a reduction in force is necessary, that general foreman will ask his foremen to recommend which particular worker or workers should be laid off.

   Based on Nichols' work performance and attitude, Wright selected Nichols. Accordingly, Nichols was laid off on April 30, 1987. Between April 10, 1987, the beginning of the force reduction, and April 29, 1987, 49 craft workers had been laid off. On April 30, 1987, eight (8) craft workers were laid off in addition to Nichols. Three of these eight were fellow carpenters. Wright's entire crew was subsequently laid off during the next month, and Wright was transferred back to Trantham's crew on May 30, 1987.

   The Complainant/employee bears the burden of proof each of the elements of his claim, i.e., that the employer is governed by the Act, that the employee engaged in protected activity as defined in the Act, and that as a result of engaging in such protected activity, the employee's terms and conditions of employment were adversely affected. ERA § 210; 42 U.S.C. § 5851.

A. Whether Bechtel is subject to the Act

   Bechtel is a sub-contractor authorized to work in a nuclear power plant, including the Turkey Point Nuclear Power Plant owned by Florida Power and Light Company. Florida Power and Light is an NRC licensee. Bechtel, the employer of Nichols, is accordingly subject to the Act. 42 USC 5851(a); Mackowiak v. University Nuclear Systems, 735 F.2d 1159 (9th Cir. 1984).

B. Protected Activity

   Nichols did not participate in a formal NRC proceeding. He does, however, allege that he

engaged in protected activity. Specifically, he testified that he approached Williams shortly after he dated working on Wright's crew to ask for a clarification of the correct procedure for having carpentry tools tagged and surveyed when they are picked up at the beginning of a shift.

   Consistent with the procedures that were followed by Trantham's crew, Wright's new crew had been picking up and bagging their tools inside the building. They would then carry the tools approximately twenty (20) yards outside and around the storage building to the health physics station. The tool bags were then surveyed before the carpenters proceeded to their job assignments.

   This procedure conformed to the directions of health physics workers at Turkey Point. "Health physics" is in charge of all radiological procedures at the facility. Health physics workers are the "police" of the facility, present throughout the RCA and constantly monitoring work activity. Health physics workers instructed Bechtel's carpenters to take their tools to be surveyed at the health physics station at the other end of the storage warehouse from where the toolbox is located.

   Being unfamiliar with procedures inside the RCA, as he had previously worked with Lilge's crew outside the RCA, Nichols apparently wondered whether the tool bags should have been surveyed near the toolbox rather than at the health physics station at the other end of the storage building. He brought this to the attention of Williams by requesting a clarification of the correct procedures. There is no specific rule covering this particular situation.

   Williams took this question to the health physics shift supervisor, Donald Hicks ("Hicks"). Hicks informed Williams that in his judgment the better procedure would be to have the tools tagged and surveyed nearer the toolbox. Williams discussed this procedure with Max Lazan ("Lazan") who was

the health physics supervisor in the building where the toolbox was located. Lazan informed Williams that in his opinion the past procedures were acceptable and that he would resolve this with Hicks. Lazan informed Williams that carpenters should continue to follow the established procedures.

   This incident would be of minor concern to the Bechtel foremen and Williams, a general foreman. They received numerous instructions from various health physics workers who would modify previous instructions based upon each health physics worker's individual judgment.

   I cannot conclude that the mere questioning of the correct method in which to handle tools would be "protected activity under the Act. I would also reiterate that health physics workers appeared to vary their instructions on these procedures quite often. I find that Nichols' questioning of how these tools should be handled fails to fall within the purview of "protected activity" as intended by the Act.

C. Whether Nichols was discharged due to his protected activities

   Assuming arguendo that Nichols' activity was protected, he must show that it played a role in his termination.

   In N.L.R.B. v. Transportation Management Corp., 462 U.S.C. 393, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983), the United States Supreme Court approved the tests in Mt. Healthy City School District v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), for dual motive discharge cases under the National Labor Relations Act. Under the Mt. Healthy test, the discharged employee must make a prima facie showing sufficient to support the inference that protected conduct was a motivating factor in the employer's decision.

   Once that is established, the burden shifts to employer to demonstrate that the same action would have taken place even in the absence of the protected conduct.

    Other Circuits have adopted this test for retaliatory discharge cases under Section 210 of the Energy Reorganization Act. See Dunham v. Brock, 794 F.2d 1037 (5th Cir. 1986), Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1 1 59 (9th Cir. 1984), DeFord v. Secretary of Labor, 700 F.2d 281 (6th Cir. 1983), Consolidation Edison Co. of N.Y. Inc. v. Donovan, 673 F.2d 61 (2d Cir. 1982).

   Under the Act, jurisdiction lies in the U.S. Court of Appeals Circuit in which the violation allegedly occurred. The Eleventh Circuit, the controlling jurisdiction in this case, has not yet ruled in this area. In light of the United State, Supreme Court's approval of the Mt. Healthy doctrine, I find it reasonable to apply it to the instance case.

   I can not conclude from the testimony adduced at the hearing that Nichols was fired, but was laid off in a bona fide force reduction. First, it is clear that during a force reduction some employees must be laid off. The choice of who those employees will be rested in this case with Bechtel's carpentry foreman. Logically, the foreman will keep those workers who not only exhibit adequate skills, but who also work well with others and accept supervision. Nichols was neither working well with others, nor accepting Wright's or Lilge's supervision. It also appears that after his transfer inside to RCA, he failed to get along with carpenters in Trantham's and Wright's crew.

   Nichols argues that he was selected for Wright's crew because of his special skills, and that other less skilled carpenters were retained instead of him. I would note, however, that Nichols had attitude problems which Lilge noted before his transfer. Nichols was selected from Lilge's red badged carpenters for transfer because of his

poor attitude. Nichols has also failed to demonstrate that any of the remaining carpenters on Wright's crew after the first lay-off lacked the skills necessary to accomplish the carpenters' work assignments, or were less skilled than Nichols.

   Further, craftworkers at Turkey Point have no seniority rights regarding lay-offs. Thus, Nichols' seniority could not foreclose his being laid off. I find, then, that Wrights' reason for dismissing Nichols did not concern his skills, but his attitude.

   Nichols also argued that Wright laid him off because Nichols spoke to Wright's supervisor, Williams, and requested a clarification of proper procedures. Wright did ask Nichols if he would in the future give him a chance to answer his questions before going to his supervisor. He did not, however criticize Nichols for his concern. I find nothing inappropriate about a foreman, especially a new foreman such as Wright, requesting that his crew members speak to him prior to going to a supervisor with questions concerning proper procedures.

   Nichols also argued that he was subjected to harassment by a scheme to provoke him into a fight with another laborer named Mark Hayes ("Hayes"). Nichols asserts that Wright and Trantham enticed Hayes to belch and expel flatulence at him in the lunchroom, hoping to provoke Nichols to fight with Hayes. This would violate Bechtel's policies, causing Nichols to be terminated. I find no merit in this contention. The evidence adduced at trial shows that Hayes had a long-standing reputation for such distasteful behavior. This lunchroom activity was common among RCA carpenters before Wright's crew was formed, and before Nichols was transferred to Wright's crew.

    I can not seriously entertain the argument that such lunchroom antics were a subterfuge to provoke Nichols to quit or to attack Hayes. This lunchroom behavior had no effect whatsoever on

Nichols' dismissal and appears to be irrelevant. I find this argument, then, completely unpersuasive.

   Nichols also asserts that there existed animosity towards him from Wrights' and especially Trantham's crew. This animosity was allegedly generated after a health physics supervisor, Hicks, informed two unidentified carpenters on Trantham's crew that they should have their tools surveyed at the toolbox rather than outside the tool building.

   Nichols presented no evidence, however, that Hicks' instructions ever created any concern among the carpenters of Trantham's or Wright's crew. Craft persons at Turkey Point constantly receive instructions from health physics personnel on a daily, even hourly basis. These instructions frequently change. Hicks did not deem his instructions to those unnamed carpenters to be such that it was necessary even to mention it to their foreman, Trantham, or to the general foreman. Moreover, two members of Trantham's crew testified that they never knew about such an incident. It could have hardly been a major concern and topic of discussion on Mr. Trantham's crew if these two carpenters had never heard of such "event." There is additionally no evidence that Nichols even spoke with Hicks.

   I find, then, that the complainant has failed to make a prima facie showing that he engaged in protected activity, or that such activity, even if it were protected, had a bearing on his being dismissed from employment at Bechtel.

   Accordingly, it is recommended to the Secretary of Labor that the Complainant's petition for relief be denied.