After the filing of the initial complaint on October 27, 1989, the case came in to this office. Hearing was scheduled for January 25, 1988, at which time Complainant failed to appear. After a Show Cause Order and Response by Complainant's counsel, a recommended order dismissing the complaint was issued. After appeal, the matter was remanded by the Secretary of Labor for further proceedings.

    At the conclusion of the January 26, 1989 hearing, it was determined that briefs would be filed on April 11, 1989. Briefs have been received from both parties, and have been thoughtfully considered in the formulation of this recommended decision.

A. CBI's subcontract with Philadelphia Electric Company at Peach Bottom Reactor 2 in 1984 and 1985

    At the hearing, the parties stipulated that during the period of March, 1984 through June, 1985, CBI had a contract with Philadelphia Electric Company ("PECO") to replace the recirculation piping on Reactor Unit 2 ("Unit 2") at the Peach Bottom Nuclear facility in Delta, Pennsylvania, which is owned and operated by PECO. To help perform this work, CBI in turn entered into a subcontract with GAPCO, inc. to provide pipe welding and machining work on Unit 2 as the general foreman for GAPCO on this job. Don Sordahl was the job superintendent for GAPCO. Chuck Halfast was CBI's project manager for the piping replacement work on Unit 2.

B. CBI's Observations of Complainant While He Worked For GAPCO on Unit 2.

    Mr. Young began working for GAPCO on Unit 2 on May 7, 1984. According to Chuck Halfast, he thereafter had an opportunity to personally observe Mr. Young on the job in June and July of 1984. Mr. Halfast testified that on one occasion while he was in the T.V. monitoring room, he observed Mr. Young come up behind one of his fellow craft workers, stick his leg between that employee's leg and begin "humping" on the employee's leg. Mr. Halfast characterized Mr. Young's actions on that occasion as "very unbecoming".

    In addition to Mr. Halfast, Dean May, the Company's machining engineer, had an opportunity to personally observe Mr. Young's work habits and attitude toward his work. In particular, during training

Mr. May testified that he observed Mr. Young straddle and begin humping another man's leg. This was a different incident from the humping incident observed by Mr. Halfast. According to Mr. May, this left a "very strong impression" on him. in addition, Mr. May testified that he observed Mr. Young in the fab shop telling jokes to employees, and laughing and carrying on with workers rather than working. Mr. May also had occasion to complain to GAPCO that craft workers under Mr. Young's direction were taking extended breaks and sitting idly rather than working. According to Mr. May, he found Mr. Young's activities while working for GAPCO very unprofessional, immature and even perverted.

    In order to put Mr. Young's activities into perspective, Mr. May testified that the work being performed by CBI and its subcontractor GAPCO on Unit 2 involved removing old reactor piping that had been contaminated with radiation and installing new piping. Because of radiation exposure to employees, there had to be a great deal of training of craft workers before any work was started. Indeed, the equipment being used on the job was not common to the pipefitters trade before this particular job. As a result, Mr. May stated that training was serious business and not something to be treated casually. While some amount of horseplay and popularity may be normal on any industrial job, I do agree with Respondent's contention that Mr. Young's behavior on this job site was wholly inappropriate in view of the safety considerations inherent in work on a nuclear reactor.

    Indeed, the Complainant seems to have been well aware of safety considerations for this work. Mr. Young had extensive experience in pipefitting, welding, and mechanical work in the nuclear field. After his hiring as general foreman in May, 1987, after careful observations on the job, he notified his superiors from immediate supervisor to job superintendent Sordahl of his concerns about insufficient manpower and the risk of excessive radiation to his men. He even submitted sketches in support of his conclusion. In addition, he discussed these safety complaints with safety radiation inspectors known as the ALARA (as low as reasonably achievable) representatives at the job site. When Mr. Sordahl advised that CBI had refused to approve this hiring of additional men, Mr. Young discussed this matter with a Mr. Hartinger, his union representative, who came to the job site to express to management Mr. Young's safety and employee utilization concers along with the sketch. When turned down by Sordahl, Hartinger had a conference with Halfast who initially refused the suggestion for additional employees, but when Hartinger suggested that he and discuss this matter with the NRC, Halfast changed his mind and

would reconsider. Within a week, the additional employees were hired. There is no testimony from the employer questioning the validity and the accuracy of Young's safety complaints.

C. Production Progress on the Day Shift on Unit 2

    Mr. Young was the foreman in charge of pipefitters on the day shift on Unit 2. Sometime in mid July of 1984, CBI officials determined that work was not progressing according to schedule. As a result, Chuck Halfast assigned Dean May to investigate the cause of the problem and report back with his findings. Mr. Halfast, further testified that the company then investigated the matter and the problem to be the fact that GAPCO pipefitters on the day shift work were not accomplishing what night shift workers were. To substantiate this conclusion, the Company introduced evidence there were twice as many pipefitter welders working on the day shift under Mr. Young than there were on the night shift. (Resp. Ex. 1). In addition; the Company introduced a letter it received from GAPCO including a schedule of the number of set-ups and cuts credited to the day and night shifts. (Resp. Ex. 2). A review of this document indicates that it attributes 13 set-ups and 12 cuts to nights while attributing only 5 set-ups and 7 cuts to days. Even after the Department of Labor investigated the matter, it determined that there was still a noticeable difference between the number of cuts and set-ups taking place on days and nights.

    Mr. Young attempted to rebut these allegations by showing that there should be somewhat more production on the night shift than the day shift for the following reasons: the night shift is not tied up with paperwork, equipment hauling and training; there is no supervisory personnel present to interrupt the flow of work (this is substantiated by May's testimony that he never appeared at the night shift). Mr. Young's analysis of this differential between day and night shift was substantiated in part by the analysis of the Department of Labor's investigator (Complainant's Exhibit 6) which showed a very minimal disparity between the day and night shifts along with an explanation for said disparities similar to that testified to by Mr. Young.

    Considering the excessive number of pipefitters working on the day shift vs. the number on the night shift, and the variances in production, I find that the Respondent had reasonable grounds to believe that Mr. Young, as general foreman, bore at least a share of the responsibility for this low production.

D. CBI's Contract to Replace Piping on Unit 3 and the Complainant's Employment in 1987

    CBI first returned to Peach Bottom on January 1, 1987 to begin preplanning sessions for the Unit 3 replacement work. Sometime in May or June of that year, CBI officials including Chuck Halfast, Dean May, Dave Welchill and Perry Brosius, held a meeting to discuss personnel staffing for the Unit 3 work, which included examining a list of names of employees from Unit 2. According to Dean May, based on his observations of Mr. Young while working for GAPCO, he expressed his opinion during this meeting that Young was not suitable for employment with CBI. Based on his observations of mr. Young, Mr. Halfast concurred, concluding that Young was an undesirable employee that the Company did not want on its payroll. According to Mr. Halfast, this decision was not influenced by GAPCO or PECO. Rather, the ultimate decision to refuse to consider Mr. Young for employment was made solely by Mr. Halfast and was based on Company observations of Mr. Young while he worked for GAPCO.

    On October 12, 1987, Complainant was referred by Local 520 of the Pipefitters Union to work as a pipefitter welder for CBI on Unit 3. After arriving at the site, Mr. Young was given one weld test as part of the hiring process. He passed this test on October 14, 1987. Mr. Halfast did not learn that Mr. Young was on the jobsite until October 15, 1987, when he saw Mr. Young's file indicating that Young had passed the first weld test. Mr. Halfast immediately informed his job supervisor Perry Brosius to discharge Mr. Young, as Young was not suitable for hire by CBI. According to Mr. Halfast, this decision was not influenced by PECO or any other contractor.

    On October 14, 1087, while in the middle of his second weld test, Mr. Young was informed that he was being terminated. At this time, Mr. Young was paid for the time that he had worked and given what is known as a drag slip confirming that he was paid for his time. (Resp. Ex. 4). At Mr. Young's insistence, Kelly Brawner, a CBI employee, wrote the reason for Mr. Young's termination on the drag slip: "Knowledge of past work experience, ineligible for CBI rehire" (Resp. Ex. 4). Kelly Brawner wrote this reason after consulting with the job superintendent, Perry Brosius.

E. Evidence Concerning CBI's Knowledge of Complainant's Protected Activities

    At the hearing, the parties stipulated to the fact that Mr. Young had brought or had pending before the Department of Labor several proceedings against PECO and other contractors at the Peach Bottom

facility in which he alleged or was alleging that adverse employment actions had been taken against him on account of his protected activities under the Energy Reorganization Act. In this regard, counsel for CBI represented that the Company was not denying having knowledge of Mr. Young's alleged protected activities when it terminated him on October 15, 1987.

    In testifying concerning his decision to terminate Mr. Young in October of 1987; Mr. Halfast stated that neither PECO nor any other contractor influenced his decision. Rather, his decision was based solely on Company observations of Mr. Young while he worked for GAPCO on Unit 2.

F. The Prevailing Law on Whistleblower Termination

    The federal courts have developed a test referred to as the "dual motive discharge test" first enunciated by the United States Supreme Court in Mt. Healthy City School District v. Doyle, 429 U.S. 274, 97 S.Ct. 568 (1977). Under this test, once the employee has shown that a protected activity played a role in the employer's decision, the burden shifts to the employer to persuade the court that it would have discharged the employee even if the protected activity had not occurred. Mackowiak v. University Nuclear System, Inc., 735 F. 2d 1159 (1984).

    In enunciating the legal standard for dual motive discharge under § 5851, Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (1984) states:

    "Mt. Healthy created a two-part test for 'dual motive' cases. Under it, once the plaintiff has shown that the protected activity 'played a role' in the employer's decision, the burden shifts to the employer to persuade the court that it would have discharged the plaintiff even if the protected activity had not occurred."

    In dual motive cases, the employer bears the risk that 'the influence of legal and illegal motives cannot be separated . . .'"

    On brief, complainant alleges that he has established the essential elements of his claim: (1) that the party charged with

discrimination is an employer under the Act; (2) that the complainant/employee was discharged; (3) that the discharge arose because the employee participated in protected activity.

    In a retaliatory discharge case such as the present one, "the aggrieved employee may prevail only if he would not have been discharged but for his participation in the statutorily protected activity." Dunham v. Brock, 794 F.2d 1037 (5th Cir. 1986).

    Put differently, where an employer proves that it would have discharged an employee regardless of his protected activities, the employer must prevail. Id. In Dunham, the plaintiff alleged that he was terminated for engaging in protected activities under Section 210. The Administrative Law Judge and the Secretary of Labor, on other hand, found that plaintiff had been insubordinate and that he could have been terminated regardless of any protected activities. On appeal, the Fifth Circuit affirmed the decision of the Secretary of Labor finding substantial evidence to support the Secretary's conclusions.

    In the present case, I find the fact situation to be more nearly analagous to that in the Dunham case than to the Mackowiak case.

    The two witnesses for CBI testified -- without any contradiction by Mr. Young -- that they observed Complainant "humping" the legs of other employees on two separate occasions. (Tr. 90, 204). In addition, Mr. May testified that he observed Mr. Young laughing and joking with his men on several occasions when they should have been working, and that several times he observed workers under Mr. Young's direction taking extended breaks. Significantly, Mr. Young does not deny engaging in any of this activity. Rather, as suggested during the cross examination of Mr. May by Complainant's counsel, Complainant's only retort in this regard is that Mr. Young's flippant attitude and approach toward his work was somehow not significant enough to warrant a determination that he was not eligible to work of CBI. What Complainant completely ignores, however, is that the company was working in the drywell of a nuclear reactor. Under such circumstances, it could not afford to have in its employ a jokester whose lighthearted approach to his work could endanger the safety of fellow workers.

    At the hearing, I had an opportunity to observe both of these witnesses for CBI, and I find their testimony to be fully credible. While their attitude towards Complainant's crude horseplay may have

seemed overly proper and even prudish, the simple fact remains that it is one thing to tolerate some joking among existing employees, supervisory or not, but quite another to hire an individual in any capacity who is known to have engaged in repeated instances of unprofessional, immature and even obscene behavior on the job.

    I have earlier found that the Respondent had reasonable grounds to believe that the production under Mr. Young's direction at Unit 2 was less than satisfactory. After investigation, it was concluded that this was because day shift workers under Mr. Young's direction were not pulling their share of the weight when compared to night shift workers. In that Mr. Young was the general foreman responsible for the pipefitter welders on days, the Company was justified, particularly in light of Dean May's observations of how Young "supervised" his employees, in determining that Young was not eligible for hire.

    As set forth earlier, it is the Complainant's belief that he should prevail in this proceeding simply by showing (1) that the party charged with discrimination is an employer under the Act; (2) that the Complainant/Employee was discharged; (3) that the discharge arose because the Employee participated in protested activity. Parts (1) and (2) of his tripartite test are not in dispute and actually are conceded. I believe that Complainant has over-simplified the requirement in step (3).

    While Mr. Young's reporting of what he believed to be safety violations at Unit 2 in 1984 clearly elevated his status to that of one engaging in protected activity within the meaning of the statute, it overlooks the more stringent "but for" test enunciated in Dunham v. Brock, supra. Here, I find that CBI's determination to discharge (or not to permanently employ) Mr. Young in October 1987 on the basis of his past horseplay, considered by it to be odious, when coupled with the reduced production performance on the shift which he supervised to have been justified, notwithstanding his history of engaging in protected activity.

    In view of my conclusion, a determination of the correct measure of damages and the reasonableness of Complainant's attorney's fees is unnecessary. I find that the Complainant would have been discharged irrespective of his participation in statutorily protected activity. The complaint should be dismissed.

    It is respectfully recommended to the Secretary of Labor that the complaint be DISMISSED, and that the complaint be DENIED pursuant to 29 C.F.R. 24.6 (b)(4).

       THOMAS W. MURRETT
       Administrative Law Judge