Hadden v. Georgia Power Co., 89-ERA-21 (ALJ May 21, 1990)

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USDOL/OALJ Reporter
Hadden v. Georgia Power Co., 89-ERA-21 (ALJ May 21, 1990)

U.S. Department of Labor
Office of Administrative Law Judges

CASE NO: 89-ERA-00021

DATE: May 21, 1990

IN THE MATTER OF

DONALD E. HADDEN
Plaintiff

GEORGIA POWER COMPANY
Respondent

Daniel I. Oshtry, Esq.
Stephen M. Kohn, Esq.
For the Plaintiff

Jesse P. Schaudies, Jr., Esq.
For the Respondent

BEFORE: Richard E. Huddleston
Administrative Law Judge

RECOMMENDED DECISION AND ORDER

This proceeding arises under the Energy Reorganization Act of 1974, as amended ("ERA"), 42 U.S.C. § 5851 (1982), and the implementing regulations at 29 C.F.R. Part 24. The ERA in § 5651(a), prohibits a Nuclear Regulatory Commission ("NRC") licensee from discharging or otherwise discriminating against an employee who has engaged in protected activities set forth in the Act.

This Case arises as a result of a complaint filed by Donald Hadden alleging that, in retaliation for protected activities, he has been placed upon a permanent bar list for any Georgia Power Co. construction or maintenance projects. The file

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contains an unsigned, typewritten complaint dated 20, 1988, but no official indication of whether such was filed with the Department of Labor. On January 5, 1989, Mr. Hadden filed a handwritten complaint with Tonney E. Young, Compliance Office, U.S. Department of Labor, Wage and Hour Division. On February 16, 1989, Milton R. Halbert, District Director, Employment Standards Administration, notified Mr. Hadden as to the results of the investigation of his complaint. By telegraph message to the Chief Administrative Law Judge, dated February 21, 1989, Mr. Hadden appealed the determination of Mr. Halbert and requested a formal hearing before the Office of Administrative Law Judges.

The case was assigned to the undersigned Administrative Law Judge on February 27, 1989, and a formal hearing was conducted on March 21, 1989. The record was held open at the guest of the parties for the filing of briefs and reply briefs. The record upon which this recommended decision is based consists of Plaintiff's exhibits numbered 1 through 21 (PX 1 through PX 21 which were admitted at the hearing);¹ Plaintiff's post trial brief and reply brief (identified as PX 22 and PX 23); January 5, 1989, and December 20, 1988, complaints filed by Donald Hadden (identified as PX 24); February 16, 1989, finding by Employment Standards Administration (identified as PX 25); February 21, 1989, telegram by Donald Hadden requesting appeal (identified as PX 26); and Plaintiff's additional argument filed July 17, 1989 (identified as PX 27); Defendant's exhibits numbered I through 26 (DX 1 through DX 26 which were admitted at the hearing);² Defendant's post-trial brief and reply brief (identified as DX 27 and DX 28); additional argument from Defendant submitted July 5, 1989 (identified as DX 29); and Hearing transcript (474 pages). In addition I have marked the parties' joint motion to extend time to submit post-hearing briefs as Joint Exhibit 1; the parties' second joint motion to extend time to submit

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post-hearing briefs as Joint Exhibit 2; and all other correspondence, motions and documents as ALJ exhibits.

ISSUES

1. Whether the Office of Administrative Law Judges has jurisdiction) to consider this complaint under 42 U.S.C. § 5851 (a) because of § 5851(g).

2. Whether the Plaintiff is an employee within the meaning of the ERA.

3. Whether the complaint is timely filed under 29 C.F.R. § 24.3(b).

4. Whether the Respondent discriminated against the Plaintiff because he engaged in protected activity.

FINDINGS OF FACT

Donald Hadden was employed as a construction worker by Pullman Kenith-Fortson ("PKF"), a contractor on site at Plant Vogtle, Augusta, Georgia. Plant Vogtle is a nuclear power plant owned and operated by Georgia Power Company ("GPC") (Tr. 51), and is a licensee of the Nuclear Regulatory Commission ("NRC"). Mr. Hadden became a member of the Sheetmetal Workers of America, Local 86, in 1984, and that local referred him to the Plant Vogtle project to work for PKF as a sheetmetal worker (Tr. 144-145). On February 12, 1986, Mr. Hadden was terminated for refusing to work without the required work package being available (Tr. 57-58).

Mr. Hadden testified that prior to his termination on February 12, 1986, he had spoken to his foreman "about the siliconed bolts." (Tr. 55 line 20 and PX 4 page 7). He also stated that he told Ron St. Onge, Project Manager for PKF ". . . that work was being done improper in general." (Tr. id

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lines 23, 24). After his February 12, 1986, termination, Mr. Hadden reported concerns to the Georgia Power Company Quality Concern Department ("QC") (Tr. 58) as well as the NRC (PX 1 and 2).³ The Quality Concern Department is an internal department set up by Georgia Power where employees may go to discuss problems they may have with the construction of the plant. In addition, Mr. Hadden testified that he filed a complaint with the United States Department of Labor (DOL) (Tr. 59).⁴

On May 12, 1986, Mr. Hadden went on a "walk- down" of the plant with representatives of the NRC and of Georgia Power where he pointed out his safety concerns (Tr. 65, PX 4). Nine days after the walk-down, Hadden's DOL complaint was settled, and he was rehired on May 21, 1986. At the time he returned to work, Mr. Hadden signed a memorandum which outlined PKF's position regarding his reinstatement (PX 5). The Plaintiff testified that he was hesitant to sign the memorandum because he didn't agree with it, but signed because of the last paragraph which states that "Your signature does not (emphasis in original) mean that you agree with our position, but simply means that you have read and understand our position." (PX 5 page 2). The memorandum indicates PKF's position that "As this memorandum indicates, your past performance has been less than satisfactory."

Mr. Hadden testified that upon returning to work, he was treated differently than before by his foreman, and was told by another foreman to "watch out because they was looking at me." (Tr. 71). He also indicated that he was given only a plain white hat with no numbers or tape, which was contrary to the normal practice of issuing colored hard hats with badge numbers identifying the area in which the employee works. (Tr. 72).

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On June 2, 1986, Mr. Hadden met with Dick Janecke, QC Investigator, regarding the results of the May 12, 1986, walk-down, at which time, Mr. Janecke showed him his report and QC's responses (PX 7). Mr. Janecke asked Hadden to sign off on the report as satisfied so he could close the investigation, but Hadden refused (Tr. 74). Plaintiff testified that Janecke appeared to be a little disgusted that he not would sign the report. The following day, June 3, 1986, Plaintiff was terminated a second time (PX 6). The reason stated for this second termination was "Out of work area disrupting others from their work. Violation of agreement signed May 21, 1986. Eligible for rehire--No". (PX 6).

Mr. Hadden testified that he believed that the "Eligible for rehire--No" statement was for 90 days and that after that date "I couldn't work for PKF, but someone else I could." (Tr. 77). He also testified that he was told by the BA (Union Business Agent) that his termination for being out of his work area carried a 90 day suspension. (Tr. 115). Plaintiff states that at some time following his July 23rd, 1986, telephone conversation with Mr. Janecke concerning taking back his signature, he was referred by the Union back at Plant Vogtle (Tr. 116). However, he states when he presented himself for work, he was turned away at the gate. Hadden then states that his steward told him he was not allowed on the site; and that ". . . he would have to do some more investigation but for right now just go back to the house because I wasn't allowed on the site." (Tr. 116). He stated that no one told him the duration of this bar. Plaintiff was then asked if he formed any opinion as to the duration of the bar, to which he responded, "Well, the longest time that I've known anybody to be barred or couldn't come back on the site was for a one year bar." (Tr. 116). Following this, Hadden says he called Janecke, who told him it was too late, that Mr. Whitney had made the decision "and it's over with." He also stated that he finally got in touch with Mr. Whitney, "And he told

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me I was barred from the plant site"; but that Whitney did not mention the duration of the bar. (Tr. 117). The date of this conversation was not given, but Mr. Hadden testified that it was before Christmas of 1986. (Tr. 140).

Mr. Charles W. Whitney, Executive Assistant to the President of Georgia Power Company, testified that he made the decision to permanently bar Mr. Hadden from Georgia Power Company sites, and issued a handwritten memo to "Bill Davidson" to that effect on September 8, 1986. (Tr. 212 and DX 8). On September 15,1986, a Mr. B.E. Davidson, Construction Contracts Coordinator for Power Company, issued a letter to the Plaintiff's Union Business Agent, Chuck Bell, stating that,

On September 9, 1986, Donald E. Hadden, SSN: xxx-xx-xxxx, was placed on the permanent bar listing for violation of Category 1, Rule 4, of the Rules of Conduct and Safety. As a result of this violation, Georgia Power Company is no longer willing to allow Mr. Donald E. Hadden to return to any of its Construction or Maintenance Projects." (PX-10).

In October of 1988, Mr. Hadden applied for a job with DuPont at the Savannah River Plant, Department of Energy facility. (Tr. 118, PX 9). The application process included a full background search for prospective employees (Tr. 122-123). After Mr. Hadden submitted his application he asked business agent George Arnold at his union hall to send him a copy of all the papers that were in his file (Tr. 123). In response to this request, around the first part of December of 1988, the Union provided him with both termination notices from PKF and the PKF reinstatement memorandum but nothing regarding his bar from Georgia Power. Hadden says he told the Agent that there must be some type of bar, but the agent said that's all there was. He says that later he went down to a Union meeting the first part of December,

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where he was provided a copy of the permanent bar from Mr. Davidson (Tr. 124 and PX 10). Mr. Hadden testified that prior to receiving a copy of that document in December of 1988, he had never received any written indication of a bar from anyone including his Union representatives (Tr. 123). Mr. Davidson did not testify, but the parties have stipulated that he did not send a copy of the permanent bar to the Plaintiff (Tr. 272). Further, Mr. Whitney testified that he did not send a copy to Mr. Hadden, but that the letter was sent to Mr. Hadden's Union. (Tr. 232).

CONCLUSIONS OF LAW

The Plaintiff bears the burden of proof that he has been unlawfully discriminated against with respect to the terms of his employment as a result of engaging in activities which are protected under the Act. It is not disputed that Georgia Power Company is a licensee of the Nuclear Regulatory Commission, and is thus, an employer subject to the Act. It is also not disputed that Donald Hadden engaged in protected activities under the Act by reporting concerns to the NRC, Georgia Power QC Department, and to DOL, and that such activities were known to Georgia Power Company. It is not disputed that Donald Hadden has been "discriminated against with respect to the terms of his employment" by being discharged and subsequently permanently barred from employment at Georgia Power Company facilities. It is disputed that these personnel actions were taken as the result of improper animus on the part of Georgia Power Company.

Jurisdiction

Respondent has argued ⁵ that jurisdiction does not exist to hear the Plaintiff's complaint because of § 5851 (g) of the Act which provides:

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Subsection (a) of this section shall not apply with respect to any employee, who, acting without direction from his or her employer (or the employer's agent), deliberately causes a violation of any requirement of this chapter or the Atomic Energy Act of 1954, as amended [42 U.S.A. § 2011 et seq.].

The Respondent argues that Donald Hadden intentionally committed acts of sabotage at Plant Vogtle by cutting bolts, improperly installing them, and that he used silicone to cover up the improper installation. Respondent has indicated that after reviewing the evidence, Mr. Whitney concluded that Donald Hadden committed these acts and barred him from the plant on that basis. It is also argued that this conclusion was based in part upon Mr. Hadden's alleged admission to committing these acts on three occasions. Clearly, if true, these actions would constitute acts which would be sufficient to prevent his receiving any measure of relief under § 5851(a) of the Act. However, the Plaintiff has denied any participation in cutting or placing the bolts, and has denied that he ever admitted such. Thus, there is a factual dispute between the parties as to these alleged acts of sabotage.

Respondent has cited as authority for finding that § 5851(g) precludes an Administrative Law Judge's jurisdiction to hear this complaint under § 5851(a), the decision of the United States District Court in English v. General Electric Company, 683 F. Supp. 1006 (E.D.N.C. 1988). In English the District Court was considering an action for wrongful discharge and intentional infliction of emotional distress under North Carolina law.⁶ The defendant move to dismiss on the grounds that plaintiff's state law claims were preemted under § 210 of the ERA. Respondent argues that the Court held that § 5851(g) bars an employee from obtaining relief, even where the employer has violated subsection (a), "if he has caused a violation of any nuclear safety requirement." Id. at 1014.

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However, the specific issue before the Court in English, supra, was whether § 210 of the ERA is federal legislation which preempts an action for wrongful discharge under state law. The Court cited § 5851(g) as part of its basis for finding that state action is preempted, reasoning that § 5861(g) would not be applicable in the state action. Thus, it is argued that a dangerous employee could prove wrongful discharge in the state action and be reinstated, contrary to the intention of § 5851 (g). The District Court's decision was affirmed on appeal by the United States Court of Appeals for the Fourth Circuit in English v. General Electric Company, 871 F.2d 22 (4th Cir. 1989). A contrary result has been reached, that the ERA does not preempt a state action, in actions arising within the United States Court of Appeals for the First Circuit. See, Norris v. Len's Mutual Casualty Co., 881 F.2d 1144 (1st Cir. 1989); and Gaballah v. PG & E et als, 711 F.Supp 988 (N.D.C. 1989). Thus, there is a split in the Circuits on the issue of preemption. The Supreme Court has granted certiorari in Vera M. English v. General Electric Company, 110 SC 230 (Sup. Ct. 1989).

Thus, the District Court in English did not have before it the jurisdictional issue of whether § 5851 (g) precludes consideration of the Plaintiffs complaint under the ERA. I accept the Respondent's argument that, where acts of sabotage on the part of the Plaintiff are established, § 5851(g) precludes any form of relief to a Plaintiff under § 5851(a). However, where the facts underlying the issue of whether there has been a "violation of any nuclear safety requirement" are disputed by the parties, I reject the argument that jurisdiction does not exist to hear the complaint and make that determination. To proceed otherwise would allow an unscrupulous Employer to preclude application of § 5851(a) in any case by simply alleging that an Employee has committed acts of sabotage. Such a reading of the statute surely frustrates the intent of the employee protection provision of § 5851(a).

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Based upon the foregoing, I find that § 5851(g) is not a jurisdictional bar to the consideration of a complaint flied under § 5851(a), but instead, must be considered as an affirmative defense to the granting any relief under § 5851 (a).

Employee Relationship

The Respondent has argued that Donald Hadden is not an employee as defined by the Act.⁷ The issue is whether Mr. Hadden, as an employee of PKF, a subcontractor of Georgia Power Company, an NRC licensee, is an "Employee" within the meaning of the Act. Respondent has argued that it is undisputed ⁸ that Plaintiff has never been employed by Georgia Power Company and has never applied for such employment; that there is no evidence that Georgia Power had any control over PKF employees; that there is no evidence to support a finding of joint-employers; that Georgia Power Company and PKF are separate and distinct corporate entities; and that there is no standing of common management or control of PKF by Georgia Power Company.⁹ Thus, Respondent argues that Donald Hadden has no standing to file this complaint against Georgia Power Company.

Respondent's argument has some merit, as there is no evidence of a direct employment relationship or control of Hadden's employment by Georgia Power Company. Indeed, under the traditional "right to control" test applied by the Courts under the National Labor Relations Act ¹⁰ the Plaintiff might not be considered the employee of Georgia Power Company. However, I find that the decision of the Secretary of Labor in Charles Hill, et al. v. Tennessee Valley Authority, 87-ERA-23 and 24,¹¹ requires a finding that Plaintiff has standing to bring this action. In Hill the Secretary of Labor has held that the Act encompasses a

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broad definition of "any employee," and as such the employee need not be an employee of the alleged discriminator. For this reason, I find that Mr. Hadden, as the employee of a subcontractor of Georgia Power Company, is an employee for the purposes of bringing this action under the ERA.

Timeliness

Under § 5851(b)(1), any employee who believes he is the victim of discrimination may, within thirty days after such violation occurs, file a complaint with the Secretary of Labor alleging such discharge or discrimination. The discriminatory act alleged in this case is the September 9, 1986, decision to permanently bar Donald Hadden from the Georgia Power Company facilities for acts of sabotage. Mr. Hadden's complaint was not filed until December of 1988.

The Plaintiff argues in his brief (PX 22 page 40) that the complaint is timely. He argues that placement on GPC's permanent bar list constitutes blacklisting, and as such is a continuing violation, and not subject to the 30 day limitation.¹² Clearly, the termination of the Plaintiff from employment, even if it was the product of unlawful animus, is barred by the 30 day time limitation. The typed complaint dated "12-20-88" (PX 24, page 5), alleges only that Plaintiff has been "black-listed", and makes no allegation that he was unlawfully terminated.

Plaintiff cites the decision of the Secretary of Labor in Egenrieder v. Metropolitan Edison Co., 85-ERA-23, 1 OAA 2 at page 425, as authority for finding a continuing violation. The Secretary indicates in Egenrieder that "Since blacklisting, by its nature, is a continuing course of conduct, it may constitute a continuing violation if it is based upon an employee's protected activity under ERA."¹³ However, as the Secretary noted, "the

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Supreme Court, in both Rica and Evans, had distinguished between the present effects of a past violation and a current violation which is a part of a continuing course of discriminatory conduct."¹⁴ Thus, Plaintiff argues that the permanent bar placed against his employment for Georgia Power Company is a continuing violation.

Respondent argues that the alleged violation is a discrete incident, the decision to place him on the permanent bar for an act of sabotage. Thus, it is argued that Plaintiff's reliance on Egenrieder, supra, is misplaced as he has not applied for or been turned down for employment with Georgia Power within thirty days of the filing of its complaint. Plaintiff did not testify that he has applied to Georgia Power Company or PKF, but testified that he had applied for employment with the Department of Energy and became concerned about what might be in his file regarding Georgia Power Company. Thus, even if the continuing violation theory is considered applicable here, the Plaintiff has not alleged that he has felt the impact of blacklisting, but that he believes he will be affected in future employment decisions mide by other employers, other than Georgia Power Company or its subcontractors.

The continuing violation theory itself has been criticized by the United States Supreme Court in a case decided June 12, 1989. See, Lorance, et al. v. A.T.&T.Technologies, Inc., et al., No. 87-1428, 57 USLW 4654 (Sup. Ct. June 12, 1989). In Lorance the Court considered the issue of a discriminatory seniority system which continues indefinitely in its alleged effect upon employees. The Court notes that,

We recognize, of course, that it is possible to establish a different theoretical construct: to regard the employer as having been guilty of a continuing violation which "occurred," for purposes of

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§ 706(e), not only when the contractual right was eliminated but also when each of the concrete effects of that elimination were felt . . . The answer to these alternative approaches is that our cases have rejected them. Id, at 4655.

Justices Marshall, Brennen and Blackmun dissented from the majority in Lorance, and criticized the Court's decision by stating:

The majority holds today that, when it is alleged that an employer and a union have negotiated and adopted a new seniority system with the intention of discriminating against women in violation of Title VII, 42 U.S.C. § 2000e et seq., the limitations period set forth in § 706(e), § 2000e-5(e), begins to run immediately upon the adoption of that system. Id, at 4657.

I believe that a valid argument might be made, that "blacklisting",¹⁵ motivated by improper animus, is facially discriminatory and discriminates by definition each time it is applied. However, I distinguish the "permanent bar" imposed by Georgia Power Company from a "blacklist," as here, there is a discrete action by Georgia Power Company, a finding that the Plaintiff has engaged in fraudulent and deceptive work practices, with the sanction of "permanent bar" imposed. The permanent bar from employment is a finite sanction, and even if discriminatorily motivated, is not facially discriminatory under the Court's criteria in Lorance, supra. Thus, I find that the Plaintiff cannot rely upon the continuing violation theory to avoid application of the 30 day time limitation imposed by the ERA.

Thus, the relevant inquiry is whether the complaint was filed within 30 days of the date that the Plaintiff was given definite notice of the

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challenged employment decision.

It is not disputed that neither the September 9, 1986, decision to issue the permanent bar by Mr. Charles W. Whitney, (Tr. 212, 232 and DX 8) nor the September 15,1986, permanent bar letter from Mr. B. E. Davidson to the Plaintiff's Union Business Agent (PX 10 and Tr. 272) were ever received in writing by the Plaintiff prior to December of 1968. There is also no evidence to contradict Plaintiffs testimony that prior to receiving a copy of that document in December of 1988, he had never received any written indication of a permanent bar from anyone including his union representatives (Tr. 123).

Mr. Hadden admits knowledge that he was barred from reemployment for being out of his work area, and that he at first thought it was for 90 days. Accepting this testimony, the 90 day bar would have expired 90 days after the June 3, 1986, termination. Thus, Mr. Hadden testified he again applied for work at Plant Vogtle in September of 1986, after the 90 days was up, but that he was subsequently refused entry when referred by his Union back to the plant (Tr. 138). Mr. Hadden testified that,

The steward took the paper and said he was going to go check on it and he came back and said that I was not allowed on the site. If he used the word "barred", I don't remember. But he said he would have to do some more investigation but for right now just go back to the house because I wasn't allowed on the site (Tr. 116).

Plaintiff was then asked if he then formed any opinion as to the duration of the bar, to which he responded, "Well, the longest time that I've known anybody to be barred or couldn't come back on the site was for a one year bar." (Tr. 116).

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Following this, Hadden says he called Janecke, who told him it was too late, that Mr. Whitney had made the decision "and it's over with." He also stated that he finally got in touch with Mr. Whitney, "And he told me I was barred from the plant site"; but that Whitney did not mention the duration of the bar. (Tr. 1 1 7). The date of this conversation was not given, but Mr. Hadden testified that it was before Christmas of 1986. (Tr. 140).

Mr. Hadden seems to suggest that he had no idea that he was permanently barred from the plant. Yet, he admits that no one ever indicated the length of his bar from the plant, except to say that he was "barred from the plant." He guessed that the bar was for 90 days. Yet, when that proved inaccurate, he guessed again that it was one year. He knew his Union Steward was going to look into it, but apparently made no effort to follow up on that inquiry for another two years after Mr. Whitney told him he was barred, until December of 1988.

To the contrary, Mr. Janecke testified that in a telephone conversation with Mr. Hadden on October 1,1966, Hadden asked "What do you know about me being classed under vandalism?" Janecke says he replied to him that ". . . we had or I had with Mr. Hadden at that time, I informed him that he was on a permanent bar from Georgia Power for deceptive and fraudulent work practices. I didn't know anything about vandalism being identified at all." (Tr. 350). This conversation is documented by Mr. Janecke's notes of the conversation which do indicate Mr. Hadden's question about vandalism, but show that Janecke responded,

After more discussion, I told Hadden that his termination was for violating the terms of the letter he had signed with PKF and he was classed from them as not eligible for rehire. Subsequent to that, GPC Legal and Labor Relations have

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strengthened the non eligibility due to Hadden's involvement in deceptive/ fraudulent work practices. I asked if Hadden would like me to have anyone else call him regarding these positions and he replied, "No, I may come out and talk to them myself. I don't know." (DX 21).

Mr. Janecke also testified to another conversation with Hadden on October 6, 1986, in which he discussed his bar from GPC and offered to have Mr. Whitney call him to discuss it with him. Janecke again states that "I told him he was on a permanent bar from Georgia Power as a result of deceptive, fraudulent work practices." It was during this conversation that Mr. Janecke says Mr. Hadden told him that the concerns he had raised about the bolts were only on the basis of hearsay (Tr. 352). Following this conversation, Mr. Janecke testified that he again talked to Plaintiff on November 4, 1986, at which time he told Mr. Hadden there had been no change in the situation. "There had been no change in the disposition of the case, in the investigation and results of it, and that he was still on permanent bar." (Tr. 353). Again, Mr. Janecke's notes of this conversation support his testimony and state that "I told him Mr. Whitney and I had again reviewed the file. The decision was the same. Not eligible for rehire". (DX 23).

Upon considering this evidence, I find the testimony of Mr. Janecke to be credible. The testimony of the Plaintiff that he did not know he was permanently barred is not reasonable in light of all the evidence. I consider the Plaintiff's own statement that his Union Steward would look into it (in September of 1986) makes it highly probable that Mr. Hadden pursued the matter and engaged in the conversations testified by Mr. Janecke. I find that it is highly improbable that Mr. Hadden would wait for more than two years and make no further inquiry into his employment status. Thus, I

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find that the Plaintiff had actual notice that he was permanently barred from the plant at least from November of 1986.

The failure of Georgia Power Company to immediately provide a copy of the permanent bar to Mr. Hadden, and to carefully document the same, is, in my judgement, a poor employment practice. However, under the unique facts of this case, despite this failure, I find that the more credible evidence establishes that the employee gained actual knowledge of the permanent bar.

The Respondent also offered the hearsay statement of Chuck Bell, Plaintiff's business agent, through Mr. Janecke, that the business agent told Hadden of the permanent bar (Tr. 340). This testimony was also supported by Janecke's contemporaneous notes (DX 24). At the hearing Counsel for the Plaintiff objected to both the testimony and the notes on the basis that it is hearsay. Clearly both are hearsay and would not be admissible if a Federal Rules of Evidence are applied. However, 29 C.F.R. § 24.5(e) provides that the formal rules of evidence are not applicable to proceedings under the ERA.¹⁶ I found that the hearsay testimony was sufficiently reliable, when considered with Mr. Janecke's contemporaneous notes, to be admissible (Tr. 338-349). However, I note that the Respondent did not establish why the Business Agent himself was not called to testify. Despite admittance of this evidence, I am reluctant to give more than minimal weight to this hear- say evidence as it relates to the important issue of whether the Plaintiff knew he was permanently barred from the plant.

Respondent also argues that the notice of the permanent bar to Plaintiff's Union, as his exclusive bargaining representative, is imputed to the Plaintiff himself.¹⁷ Thus, it is argued that the notice to the Union is the date from which the 30 day time limitation should run. Plaintiff has responded that

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Mr. Hadden's Union's exclusive right to bargain in an area, simply does not make the union an agent for Mr. Hadden where he has no control of receipt of a permanent bar letter. However, in view of my finding that Plaintiff had actual notice of the permanent bar, the issue is moot.

In conclusion, I find that since Mr. Hadden had actual notice that he was permanently barred from Georgia Power Company in at least November of 1986, the 30 day time limitation for filing a complaint under the ERA expired before the end of 1986. Thus, his complaint filed two years later in December of 1988 is not timely.

Merits of Mr. Hadden's Complaint

Assuming arguendo that the complaint was timely filed, I find that the Plaintiff has not established a prima facie case of retaliation. In order to prevail under these facts, the Plaintiff must prove that the permanent bar was motivated at least in part by his protected activity. The Plaintiff argues that if he had not revoked his signature on the submitter acknowledgment form of Mr. Janecke's investigation report, he would never have been barred, as Mr. Janecke would never have felt compelled to shift his culpability on to Mr. Hadden. It is argued that "Instead of accepting the responsibility for the inadequate investigation, Mr. Janecke made Mr. Hadden the scapegoat claiming that Mr. Hadden changed his story concerning the existence of siliconed bolts."¹⁸ However, no credible evidence has been offered to support these theories. The entire case made by the Plaintiff rests upon unproven speculation.

As indicated earlier, I did not find the Plaintiff's testimony reasonable in light of the facts, while I found Mr. Janecke's testimony to be credible. Mr. Janecke has testified that the Plaintiff admitted on three occasions that he participated in the "siliconing" of these bolts, which was denied by the Plaintiff.

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There is also absolutely no evidence that Mr. Charles W. Whitney harbored any retaliatory motives against the Plaintiff. To the contrary, Mr. Whitney convincingly expresses a high degree of commitment to the validity of the Quality Concerns Program, which is directly contrary to any retaliatory motives. it is only by arguing that the alleged retaliatory motives of Mr. Janecke should be imputed to Mr. Whitney, that the Plaintiff has any basis to argue Mr. Whitney had "constructive retaliatory motives". The facts simply do not support such a finding.

In conclusion, I find that even if the complaint were considered as timely, the Plaintiff has failed to establish that his placement on the Georgia Power Company permanent bar list is the result of retaliatory animus to any degree.

ORDER

It is recommended that the complaint of Donald E. Hadden be dismissed. Entered this the 21 day of May, 1990, at Cincinnati, Ohio.

Richard E. Huddleston
Administrative Law Judge

[ENDNOTES]

¹Exhibits PX 3 and PX 21 were rejected. See, Transcript at pages 64 and 438 respectively.

²Defendant's exhibit 10 was a metal bar and bolts and was withdrawn for substitution of the photographs received on June 7, 1989 by agreement.

³The subject of these NRC concerns was "Welding being done without proper paperwork on HVAC units at Plant Vogtle". (PX 1 and 2).

⁴The parties not disagreed that a DOL complaint was filed on February 12, 1986. However, the record does not establish such. See the tendered exhibit PX 3 which was not admitted, but which purports to describe the terms of settlement of that complaint.

⁵Respondent's brief at page 26 (DX 27).

⁶ The 4th Circuit also had considered the claim filed by Plaintiff English under the ERA. See, English v. Whitefield, 858 F.2d 957 (4th Cir. 1988) considering 85-ERA-2.

⁷See Respondent's brief (DX 27) at page 35.

⁸Transcript at page 52.

⁹Respondent's brief at pages 37 and 38 (DX 27).

¹⁰See N.L.R.B. v. Diamond Cabs, Inc., F, 2d 912 (11th Cir. 1983).

¹¹See, Published Decisions of the Office of Administrative Law Judges and Office of Administrative Appeals at Volume 3 number 3, page 257 (3 OAA 3 at 257), (SOL May 24, 1989).

¹²See, PX 22, page 40, citing Egenerieder v. Metropolitan Edison Co., 85-ERA-23, Order of Sec. of Labor (April 6, 1987).

¹³Id, supra, at page 426.

¹⁴Id at 426 citing Delaware State College v. Ricks, 449 U.S. 250 (1980). and United Air Lines v. Evans, 431 U.S. 553 (1977).

¹⁵Blacklist. A list of persons marked out for special avoidance, antagonism, or enmity on the part of those who prepare the list or those among whom it is intended to circulate; as where a trades-union "blacklists" workmen who refuse to conform to its rules, or where a list of insolvent or untrustworthy persons is published by a commercial agency or mercantile association. Blacks Law Dictionary 154 (5th ed. 1979).

¹⁶Formal rules of evidence have subsequently been made applicable under 29 C.F.R. Part 18, Rules of Practice and Procedure for Administrative Hearings before the Office of Administrative Law Judges. See, Federal Register, Vol. 55 No. 68, April 9,1990.

¹⁷Respondent's brief (DX 27) at page 57 citing 29 U.S.C. § 159(a) and Restatement 2d, Agency § 9(3).

¹⁸Plaintiff's brief (Px 22) at 33.