209-212). Complainant calls this a "shell game" but offers no evidence, other than statements by counsel in the post-hearing brief, that the corporate structure is other than as stated by the company or that hiring occurs in any other manner. See Brief for Complainant at p. 10, footnote 6.

Complainant, and referred to "the settlement." Ebasco did not admit to any wrongdoing. (RX 13). It was the opinion of Perez that "had the firm not offered to settle the complaint...the fact finding would clearly demonstrate Mr. Bryant suffered discrimination as a result of addressing quality concerns in his position as a quality control inspector." (RX 1 Exhibit C). On October 30, 1987, Mr. Perez sent a note to Mr. Luis, stating that one of the agreement terms was a position "comparable" with Complainant's former employment, and that until such a position was supplied, the settlement terms would not be met. (RX 1 p. 114). Mr. Healy stated that he had not authorized any such settlement term. (Tr. II pp. 99, 101). Claimant submitted evidence in the form of a handwritten list of the terms of settlement (written by Claimant) that he gave to Mr. Perez during the term of settlement negotiations; first on the list was "reinstatement of job." (RX 1, Exhibit K).

   Ebasco asserts that "Hiring of particular individuals at any site location is within the sole purview of Ebasco's client. It is the client who decides who of the offered candidates will be hired. Since this is the reality of Ebasco's business, it would not have been possible to promise to reinstate Mr. Bryant to any position, even assuming he had not lied about having a high school diploma." (PX 10 p. 2).

   On January 19, 1988, Complainant filed the second complaint, through a letter to Mr. Perez's supervisor, which was again investigated by Mr. Perez. (RX 18). According to Mr. Perez, complainant intimated that he had been "black-balled" but could submit no evidence of such. He did uncover use of the term "bad paper" used in reference to Complainant, but the term was not defined. (RX 3). On March 11, 1988, Mr. Perez and Mr. Luis spoke, and Mr. Perez informed Mr. Luis that Complainant probably did not have a high school degree, despite representations to Perez and his employer that he did. Mr. Perez could not find evidence to substantiate Complainant's allegations of blacklisting. Mr. Perez noted that even at that point, Complainant insisted that he did have a high school degree. (RX 20).

   At the hearing, Complainant admitted that he lied about his degree to ESI and all previous employers since 1970, and to Mr. Perez and Administrative Law Judge James Kerr. (Tr. I pp. 33-34, 40, 114). Complainant also testified that he sent his falsified resume, which he had used for 20 years, to a nuclear facility

called Comanche Peak, which is owned and operated by HP&L, for a quality control position (inspector). (Tr. I pp. 113, 26, 133; Tr. II pp. 145, 133, 51). In fact, in filing his second complaint with the Department of Labor, he apparently attached the falsified resume as proof of his qualifications. (PX 3 pp. 14-16).

   Mr. Healy testified that shortly after Complainant's falsified degree was discovered, all of his work was re-inspected at a cost of more than $50,000. (Tr. II pp. 120-122).

   As its evidence of "blacklisting," Complainant submitted his own testimony that he submitted "over 200 resumes" to various nuclear industry and non-nuclear employers. (Tr. II pp. 133-134). He testified he received not one response or reply. (Tr. II p. 18). However, he could not specify what jobs he applied for, wages, or educational requirements for any company. The list also contains names of competitors of Ebasco, job shoppers, and nuclear power facilities (for which Complainant is not qualified). (Tr. II p. 19). Respondent correctly points out that Complainant submits as documentary evidence a list of employers (without job descriptions), some of which are listed more than once, many without dates, and some with dates listed from January, 1987 through April, 1988. (PX 12). In fact, next to "Foster Wheeler" is the notation "sent resume 1/3/87," which would have been prior to Complainant's layoff of January 9, 1987. (PX 12 P. 1). There are fewer than 200 notations.

   Complainant submitted no proof of search for employment for most of 1988, 1989, and 1990, and admitted that he did not seek work in 1991. He did not at any time seek minimum-wage employment that might be available to someone without a high school diploma, "because there's no way you can support a wife and two kids on minimum wages." (Tr. II pp. 40-42). Complainant stated that he told Ebasco's personnel director, Mr. Hoops, that he was willing to go back to work in "anything you got," even a temporary job at Comanche Peak, and that thereafter, Mr. Hoops refused to speak to him or return his calls. (Tr. pp. 133-134). In his second complaint to Department of Labor, Complainant notes that he was told that the Comanche Peak client had been told he had "bad paper work" while at South Texas, but when he called Bob Urell, personnel manager for Ebasco at the STNP, Mr. Urell replied "that I had a good record, and I was for rehire." (PX 3 p. 14). On cross-examination, however, Complainant agrees that he could not work at

Comanche Peak because he does not have a high school diploma. (Tr. II p. 51, 671). At the hearing, Complainant testified that he had not as yet completed work toward obtaining his GED, and that it was "hard for him to even think straight." (Tr. II pp. 23-26).

   Mr. Ronald Abel, an Ebasco employee, stated at deposition that he had heard from other Ebasco employees that they had heard a rumor about Complainant's "bad paper," but could not state the source of the rumor; further, Mr. Abel regards "bad paper," which he defines as incorrectly filling out paperwork, "an inconvenience" and not a major problem, but that he did not believe Complainant had authored "bad paper" in any event. (PX 1 pp. 79-83). Three of Complainant's exhibits, PX 5, 6, and 7, are statements given orally to Mr. Perez of the Department of Labor after investigation had revealed that Complainant did not have a high school diploma. The authors of those statements are unknown; Complainant testified that he could identify the makers of the statements. (Tr. I p. 137). Complainant also testified that he does not know of any particular individual alleging that he had "bad paper." (Tr. II p. 27). PX 5 is a discussion specifically about Complainant's resume, and it appears that Complainant himself initiated the discussion. P6 is also a discussion of the re-inspection work and discovery of "a problem with Johnny Bryant's qualification," and that "all the work he has ever done is suspect until we can verify he graduated from high school." The author of PX 6 stated "We were in the process of inspecting some of his work at South Texas and I told [Doug Snow, Texas Utilities QC supervisor] Johnny was not to be considered for employment at this time due to the re-inspections." The author of PX 7 stated:

Yes I know about the resume of Johnny Bryant. The resume was sent down from Mr. Brandt's office to us. review all the resumes/applications for EBASCO. I was informed by that Johnny Bryant had had "bad paper" at South Texas. Basically the term signifies that a particular inspector had some problems/errors with some of his inspections. It could be a number of things such as papers filed incorrectly; using incorrect procedures; test undocumented; or any paper filed incorrectly.

   Employer denied that its employees Tom Brandt and Dick Sprouse advised the Department of Labor that they had heard Claimant had "bad paper." (PX 9 P. 2).

   Complainant asserts that pursuant to agreement between the parties April 10, 19871 Complainant must be reinstated to a position "comparable with his qualifications and experience," with back [or front] pay, costs and attorney's fee. Complainant does not request an additional remedy for the alleged blacklisting.

   Respondent asserts that it is not required to rehire Complainant under the terms of the written release. Alternatively, it argues that Complainant's misrepresentation of his qualifications bars his claim, or that it has an independent cause (misrepresentation) justifying termination and/or refusal to rehire. Respondent also asserts that Complainant is not qualified for any non-quality program positions within ESI. Finally, Respondent denies blacklisting or retaliation against Complainant.

   It is at this point that the case comes before this Court for resolution.

   The first issue to be addressed is the terms of the settlement agreement. As the written terms are not in dispute, the inquiry will stress the oral terms, if any, and their effect.

   Clearly, it is the opinion of Mr. Perez, the Department of Labor investigator and negotiator of the settlement, that Claimant had bargained for re-instatement. As the drafter of the document, Respondent must prove its terms. Respondent put forth as its evidence the testimony of Mr. Healy, who was not a party to the actual negotiation, that it was not his intent to promise reinstatement as a settlement term. Other evidence shows that it is the belief of Respondent that it could not make such concessions. The negotiator of the settlement, however, has invoked attorney-client privilege and will not testify. Therefore, there is no proof that what Mr. Healy intended to be promised was what Mr. Luis and Mr. Perez bargained for.

   Mr. Bryant also stated unequivocally that reinstatement was the foremost condition of settlement. It seems highly unlikely that Mr. Perez and Respondent would leave out such a key term. The signed document in question is merely a release of liability, but does not represent the sole and complete bargain of the parties. In essence, the document should be read as stating that once the terms of the settlement have been met, ESI is no longer liable to Complainant for damages arising out of the layoff of January, 1987.

In this case, parol evidence is, admissible to prove the terms of the settlement, as the parol evidence does not conflict with, add, or vary any specific term of a contract, but merely serves to explain the ambiguous settlement terms. The same result could be reached in this case by holding that the "release" applied to both the oral promise for re-employment and the written "calculations" (Attachment 2 to the "Release") of the amount of back pay and "settlement sum" due to Complainant.

   It seems unlikely that Complainant, who had at the time of settlement at least a colorable claim of retaliatory firing (later proven to be a highly likely successful claim) would bargain away all of his rights, including future employment, for six weeks' back pay and a small ($2,0001 "settlement sum." This is particularly true since at that time Employer did not know that Complainant was not qualified for the quality assurance inspector's position. Employer, on the other hand, admits that it felt pressured to settle to limit the adverse publicity Complainant's charges might have caused. (Tr. II pp. 132-134). In addition, Employer, bargaining with benefit of counsel and as the drafter of the document (Mr. Perez apparently is not an attorney) bore the burden at the time of making of the contract of making certain that the settlement agreement was completely integrated and explicitly contained all of the terms of the parties. In this case, the Employer was in the superior bargaining position, and this is not a case of co-equals bargaining over a business contract. Both Mr. Perez and Complainant were left with the distinct impression that Complainant was promised reinstatement. Therefore, the Court holds that the settlement included not only the back wages, but a term for reinstatement to a "comparable position" as well. The Court also believes, based upon the evidence of record presented by both parties, that Complainant was to be put in the same position as if the defective weld incident had not occurred. Thus, the Court does not believe Complainant was promised "a job, any lob" immediately, especially during layoffs when none were available, but was promised the option of employment as layoffs ended and vacancies arose, just as any other employee would be considered.

   The next issue to be addressed is the effect of that oral promise for reinstatement under the facts of this case. Respondent presented uncontroverted evidence that it laid off all but one of its CQP inspectors at STNP near the time Complainant was laid off, and that by mid-1987, Complainant certainly would have been laid off. Mr. Healy stated that on January 6, 1987 (after Complainant

had reported the defective weld but just prior to his layoff) Claimant was being considered for employment at Comanche Peak and was put on another list on March 13, 1987 (one month before settling with Respondent but after filing the first claim) for another project. Mr. Healy stated that the nature of quality assurance inspection work is sporadic, but that Complainant's name was consistently put on re-employment lists for future projects. (Tr. II pp. 91-95). ESI was certainly under no obligation to rehire Complainant to a position that no longer existed. ESI had no obligation outside the agreement to act as an employment agency and find a job for Complainant elsewhere (no one has claimed that this was a settlement term, or that Complainant was offered preferential treatment over and above that of other employees).

   Respondent has presented evidence, which this Court accepts as true, that ESI alone contracted with Complainant and ESI alone was responsible for providing him a position. If ESI had no comparable positions, it could not provide a position to complainant. In addition, Complainant may not look to separate corporate entities as parties to this contract without presenting arguments and evidence in support of his theory that one is the alter ego of another. Complainant presented no such proof. Mr. Healy also noted that the nuclear industry was in a marked downturn in 1987-1988, with significant layoffs. The Court accepts as true the fact that Ebasco Construction's craft workers are not Ebasco employees, but are hired through the local hiring hall. Complainant has failed to prove that he would have been qualified for any of those positions, or that there was any ESI position for which someone less qualified than he was employed by ESI between April 10, 1987 and March, 1988.

   To further complicate matters, it is undisputed that Complainant repeatedly lied about his qualifications for the position. Although Complainant attempts to characterize this as a 20-year-old, inconsequential error, he maintained this lie, and affirmatively represented that he had a high school degree, until March, 1988. In fact, Complainant did not even complete the majority of work for a high-school diploma; he has only a seventh-grade formal education. The time for this disclosure should have been at the time of bargaining for his re-employment. By not doing so, Complainant did not bargain in good faith. Complainant committed fraud (1) in his original application with the company, where he submitted falsified documents upon which the company relied in hiring him, (2) when negotiating for settlement, by

Complainant himself admitted that he knew of no Ebasco employee who was spreading the rumor that Complainant had "bad paper." It is also apparent that Complainant was asking Ebasco employees if they had heard any rumors about him; it is as probable that this is the source of the rumors as it is that an Ebasco employee was the original source. Claimant is also the only person who reads extremely dire consequences into use of the words "bad paper" or "bad paperwork." No nuclear industry employee except Complainant testified that that phrase associated with one's name made one unemployable. Mr. Abel testified that it was more of an inconvenience for the company.

   This Court finds that the "Paperwork" in issue was just as likely his falsified employment documents as anything relating to incorrectly filed inspection documents. In addition, the one incident where an Ebasco employee spoke to another potential employer about Complainant, he was not recommended due to inspection of his work because his qualifications were in question. Indeed, Complainant is not qualified. Thus, Ebasco's statements were entitled to conditional privilege. In sum, Complainant has failed to substantiate his blacklisting allegation.

   As Complainant has failed to prove retaliatory firing or blacklisting, the complaint in this case must be DISMISSED with each party to pay its own costs, expenses, and attorney's fee.

   Entered this 27th day of February, 1992, at Metairie, Louisiana.

       JAMES W. KERR, JR.
       Administrative Law Judge

JWK/tb