Up to that
time he had not been made aware of the control shop's policy
in the assessment of personal time. (TR 52-53) Nevertheless,
he explained that if he wanted some time off, other than
vacation time or sick time, he would ask one of the assistant
supervisors or one of the upgrades for permission to take
personal time. Based on Mr. DelCore's testimony and that of
all the other witnesses, it appears that personal time is used
to arrive late or leave work early for various reasons,
including personal business and social, medical, or dental
appointments. Mr. Juan Davila testified, for example, that he
has called to advise his supervisor he was going to arrive
late. (TR 566) Others advise their appropriate supervisor
they are going to leave early for personal reasons or that they
will take an extended lunch hour for some reason. These
requests are generally granted. On the morning of August 24,
1989, Mr. DelCore did not call to advise he was arriving late
nor did he acknowledge it to Mr. Hayward when he arrived. He
stated that it was customary to advise a supervisor or upgrade
of one's tardiness. (TR 57) He also stated that it is the
custom of tardy employees, but for several years not his, to
bring in donuts and leave them where employees congregate.
When that happens, a supervisor might inquire as to the
identity of the donor.
[Page 5]
Complainant testified that on September 8, 1989, two
employees came in late and were not charged any personal time.
He identified them as Douglas Vining and Jim Ritchie. Upon
inquiry of the latter, he was told that he had not been charged
with personal time. (TR 64)
Mr. DelCore is concerned with his being charged with
one-half hour personal time because it was brought up in
conjunction with the review of his 1988 annual performance
rating (EDR) earlier in 1989. The performance rating provides
a basis, among other purposes, for an increase in an employee's
hourly pay rate. (TR 66; CX 19) It is for this reason that
Complainant was concerned when both the one-half hour personal
time was assessed and the matter of poor communications with
management was raised. These items constitute some of the
criteria embraced in the EDR, which, in turn, affects his
wages. (TR 93-96)
On September 20, 1989, DelCore was asked to see John
Becker, the shop supervisor, who inquired about the complaint
filed with DOL by DelCore in connection with the one-half hour
personal time assessment. Complainant refused to discuss the
matter, telling him that based on past experience when problems
were first discussed with management, he found that it served
only to forewarn management when he later filed a complaint
with DOL, and redownded to his detriment in the outcome of the
proceeding. (TR 75-76) It was then debated between them the
right of DelCore to lodge complaints with government agencies
and the need for Becker to know of an employee's concerns in
order to manage effectively the affairs of the shop. Mr.
DelCore indicated at one point that Mr. Becker believed he
should be first to know of any problems before DelCore resorted
to filing a complaint. (TR 80) Otherwise, DelCore's EDR would
reflect that he was not a good communicator. (TR 84-86) The
matter was discussed at length.
On cross-examination, Mr. DelCore admitted that up to
August 24, 1989, he had been granted personal time every time
he requested it "without any problem at all." (TR 106)
Nevertheless, he believed he never had been charged a one-half
hour increment in the past. (TR 116) Delcore received a " 03 "
rating for dependability, which, on a rising scale of "01" to
"05," is midway and is descriptive of one who "fully meets
expectations." (CX 19) His overall rating was "04,"
[Page 6]
"exceeding expectations." (TR 112) This rating enabled him to
receive "merit" pay during 1989. Regarding personal time,
Complainant does not recall ever asking or being charged for
one-half hour personal time; yet, Respondent's exhibits H4 and
H20 show that he was assessed one-half hour increments of
personal time on two occasions earlier in 1989. (TR 121-122)
He is concerned that excessive personal time usage, being an
element specifically mentioned to him in the annual EDR review,
may be used to justify a poor performance rating. (TR 110)
DelCore appeared to emphasize that while he was late, he
was not late by one-half hour, as alleged, disputing both the
accuracy and the synchronization of the time recorded in the
"turnstyle printout," the clock at the gate, and the clock at
the I&C shop. (TR 120-121, 223) He also admitted that while
he was cognizant that Respondent had a grievance procedure in
place, he chose not to utilize it, choosing to file a complaint
with DOL, instead, for the above-noted reason.
He acknowledged that persons entering the shop would not
be visible to supervisors standing outside Mr. Smith's office.
(TR 172)
He and Becker had an extensive discussion regarding
DelCore's right to complain to government agencies and the
supervisor's right to know of problems so that they might be
addressed. He also agreed that a memorandum memorializing the
lengthy meeting was given him by Becker on October 4, 1989.
This memorandum, DelCore alleges, represents a change in
Becker's position. (CX 22; TR 190-191) Nevertheless, DelCore
acknowledged that the meeting and the stance taken by Becker
was a fair way to address the situation and to try to resolve
it. (TR 194)
Complainant, on being recalled to the stand, noted that
the changes by Schleicher in the time sheets for September 8,
1989, obviously occurred only after DelCore identified tardy
arrivals to the DOL investigator, who then apparently revealed
the identity of at least one individual to management. (TR
803) He recited portions of a DOL investigator's report to
corroborate his testimony. (CX 25) (This exhibit is not
physically a part of the record by agreement of counsel. (TR
834)) Mr. DelCore also testified that the time sheets were not
changed until the matter was called to management's attention
[Page 7]
by DOL via his information to the investigator. (TR 826)
Mr. James Ritchie, an I&C specialist at Millstone who
works in the same shop as Complainant, testified that he
usually arrives at about 6:30 a.m., the starting time, usually
has a snack, and attends to personal or company business at his
desk until work is assigned. This is done by either a foreman
or an upgrade at any time between 6:30 a.m. and 7:15 a.m.
(TR 227) He, too, testified that supervisors usually have a
department meeting from 7:00 to 7:30 each morning in the
library or conference room. (This would be along a corridor
running parallel to the central passageway running to the
opposite side of the corridor along which DelCore's work bench
or desk is located - about diagonally across the room. (RX E)
He estimates the time needed to get from the gate he enters
(north) to the shop as three minutes. (TR 229) He believes it
would take about five minutes from the south gate. He
acknowledged that people arrive late quite often but is unaware
of any policy, as such, regarding the assessing of personal
time for tardiness. (TR 230 He arrived at 7:23 on the
morning of September 8, 1989, but was not either assessed
personal time or docked any pay. He overslept that morning and
"called in" to the shop. (TR 234) On September 29, 1989, this
was subsequently changed by an amended time card. (TR 246; CX
13) On September 15th, without any personal time assessment or
other charge, he checked out of the gate at 11:37 a.m. and
returned at 12:30 p.m. The luncheon period is normally from
11:45 a.m. to 12:30 p.m. (TR 235) Again, on September 1st, he
exited the gate at 6:38 p.m. but was paid to 7:00 p.m. (TR
239-240) He also noted that although he had 41 hours personal
time in 1988, no one made any special note of it. Mrs. Ritchie
delivered their first child during the year, and a major
portion of the personal time was consumed in conjunction with
his being present at the birth. His supervisor was aware of
the situation. (TR 254-256) He did not consider the
assessment of personal time as an adverse action. (TR 248)
Mr. Christopher Latour, another of DelCore's co-workers at
the I&C shop, testified. He described his early morning
routine as arriving at 6:30 a.m., pouring himself a cup of
coffee, and proceeding to his work station to finish the
previous day's work, if any, or discuss current events with
co-workers and await a job assignment. Job assignments are
usually issued during the first one-half hour of the work day
[Page 8]
by the upgrade or an assistant supervisor. (TR 260) Based on
his observations, he has seen the supervisors gather at 7:15
a.m. for a department meeting in the conference room. (TR 261)
He, too, is unaware of any policy regarding tardiness,
although he is aware he should be in the shop at 6:30 a.m., the
"starting time." (TR 262) He has been assessed personal time
for coming in late. This has happened recently. He is unable
to recall any other similar experience in the past. (TR 264)
As in the case with Mr. Ritchie and Mr. DelCore, Mr. Latour's
gate logs show dates of tardy arrival or early departures
without any personal time being assessed. None reflected a
one-half hour or more period of tardiness. (TR 280-287, 304)
He does not consider the assessment of personal time to be an
adverse action. He has been assessed personal time for leaving
early. (TR 299-300 ) He, too, acknowledged that one might
enter the I&C shop late in the morning and not be observed by
any supervisor. (TR 306)
Mr. William D. Dershain, an I&C specialist who has worked
in Mr. DelCore's shop for about ten years, essentially
corroborated the testimony of Ritchie and Latour regarding the
early morning routine for employees and supervisors. (TR 309)
He, too, does not consider the assessing of personal time as an
adverse action. (TR 312)
Mr. Gary Johnson has worked in Complainant's shop for
about eight years. He confirmed the prior witnesses' testimony
regarding the regular workday hours and the lack of any
specific policy about assessment of personal time for tardy
individuals. He testified that whenever he is "running a
little late, more than a half an hour or so, . . . I will
report to my foreman and tell him I'm late and explain the
reason why and would expect to be assessed personal time." (TR
315) However, he has not been charged for personal time
whenever he came in late without reporting it to his
supervisor. On the other hand, while he has not been charged
personal time for leaving 15 or 20 minutes early, he has been
charged if he left one-half hour or more early. (TR 316)
Also, whenever he has come in more than one-half hour late
without any prior arrangement, he has been charged with
personal time. (TR 320-321)
On recall, Mr. Johnson stated that since he filed a
complaint with the NRC, he believed he was the subject of
[Page 9]
retaliation by virtue of receiving a poor performance rating.
(TR 768-782) On appeal, two of the three reasons cited were
reversed by higher management, but his rating remained.
(TR 793)
Mr. Robert Atkinson, an instrument and control specialist
in Mr. DelCore's shop for about six years, testified he is not
aware of any standing policy regarding personal time being
assessed for tardiness. (TR 324) He was assessed personal
time in 1988 and 1989 for tardiness of one-half hour to two
hours. (TR 326) These were instances when he was either tardy
and notified his supervisors upon his arrival or gave advance
notice. (TR 327) He generally corroborated the testimony of
others as to the rather tolerant policy of management towards
personnel extending their luncheon periods to transact personal
business without being assessed personal time.
Mr. Eugene Paladino, an instrumentation specialist in
DelCore's shop for nearly seven years, also denied any
knowledge regarding company policy in the assessing of personal
time for tardiness. He has been under a physician's care,
necessitating frequent absences from work, for which, with
prior arrangements with supervisors, he is assessed personal
time. (TR 339-334) He fails to recall any comment being made
regarding use of personal time during the course of his annual
EDR conference. He confirmed that there is a practice that a
tardy employee brings in doughnuts. He also acknowledged that
he calls to notify management of the anticipated tardiness.
(TR 351) He does not consider the assessment of personal time
as an adverse act.
Mr. Patrick Kane, an I&C specialist in Complainant's shop
for seven years, confirmed that normal working hours are 6:30
a.m. to 3:00 p.m. He usually starts working at his computer
terminal at 6:30 and continues until 3:00. (TR 356) On
occasion, he may be asked to do some shop work. He described
the early morning routine of the supervisors as reviewing
automatic work orders (AWOs) or trouble reports (TRs) putting
them in order of priority, and assigning them to one of the
members of the shop. He described the managers' meeting as
taking place at 7:30 a.m. or 8:00 a.m. and lasting one-half
hour. (TR 357, 367) He is unaware of any policy regarding
tardiness, although he is aware of people arriving late during
the first half of 1988. During the latter part of 1988 and in
1989, being enclosed in an office, he was not in a position to
[Page 10]
observe late-comers. He is unaware of how that was dealt with
by management. If he requires time off from work to attend to
personal matters, he requests it in advance, and he "usually
get(s) it." (TR 360 It is charged as personal time. There
is no time charged for brief - five to ten minutes - excursions
to the credit union during the workday. He, too, has been
charged for one-half hour segments whenever he left work
early. (TR 368)
Mr. Robert Hansen, an instrument specialist in
Complainant's shop for about ten years, corroborated the
testimony of the other witnesses regarding the workday hours,
the morning routine, and the fact that some co-workers arrive
after 6:30 a.m. He, too, is unaware of any formal policy
regarding tardiness, although he understands he should be ready
to work at 6:30. (TR 366-367, 385) His experience is similar
to the others in the application for and use of personal time
to attend medical appointments or personal business. He is
uncertain when, but at one time in the past three years, he was
told that his use of personal time or sick time was not
excessive. (TR 381) He does not consider the assessment of
personal time, whenever he has asked for and received it, to be
an adverse action. He believes he knows what is expected of
him, and he has not abused it. Consequently, no one has ever
taken the time to explain it to him. The policies are set
forth to everyone from time to time prior to a shutdown of the
power plant when numerous newcomers, contract personnel, come
to the shop. (TR 384)
Mr. Douglas Vining, an I&C specialist, has worked for
Respondent a total of about eight years, the last several of
which have been in Mr. DelCore's shop. (TR 388) His testimony
was similar to the other witnesses' regarding work hours and
morning routine. He is aware he should be ready to work at
6:30 a.m. because he was given a time schedule. (TR 390 )
Although not assessed personal time on August 23, 1989, his
gate log shows that he entered at 6:49 a.m. (CX 4; TR 392 )
On September 1, 1989, he left at 20 minutes to the hour but was
paid for the time without being assessed personal time. (Cx 9;
TR 392-393) On September 8, 1989 (CX 12 ), he was paid for
eight hours but the gate log indicates he entered the access
point at 7:29 a.m. (TR 394 on September 11, 1989, he was in
training, and that is specially designated on the time card.
(CX 14; TR 395) His experience regarding the use of personal
[Page 11]
time is the same as the other witnesses. He is aware he used a
large amount of personal time in 1988 because of a death in the
family. (TR 401) He has been told in the course of his annual
performance review that his tardiness was excessive. (TR 403)
Mr. Vining testified that it was his practice to tell the
upgrade if he came in late. (TR 407)
Mr. Willard Hayward, a long-time employee and an I&C
specialist, working in the same shop as Complainant, was the
upgrade on August 25, 1989. He essentially confirmed the
testimony of the other witnesses regarding starting time and
the early morning routine. He, too, is unaware of any policy
regarding the assessment of personal time for tardiness. He,
personally, would notify his supervisor of his tardiness. As
an upgrade, after checking with a foreman, he usually assigns
work at about 6:40 a.m. to 7:15 a.m. This is also about the
time work is assigned to him as an I&C specialist.
(TR 414-418)
On August 24, 1989, he was the upgrade on duty and filled
in the time card on which Mr. DelCore was charged with having
one-half hour personal time. Hayward recalled that on this
date he was talking with Ray Schleicher in front of the
latter's office, when DelCore came in with his jacket and lunch
box, which he put away in the refrigerator just a few feet from
where they were standing. No greetings were exchanged nor was
anything said between them and DelCore. (TR 453) He noted the
tardiness and, being aware of "some friction" between DelCore
and "supervision," he asked Schleicher how to treat the
tardiness. Schleicher told him to enter it as personal time.
(TR 426) Nevertheless, he did not consider it as a punitive
action, nor did Schleicher indicate that it was intended to be
so. (TR 440 ) He recalls that Complainant arrived a few
minutes after 7:00 a.m.
Relying on instructions received from David Cross, the
shop supervisor prior to Mr. Becker (who took over in March
1989), Mr. Haywood recalled that five minutes' or ten minutes'
grace on both ends of the work day was a policy of the shop.
(TR 428) Fifteen minutes, apparently, would be frowned upon.
(TR 436)
In further describing the I&C shop, Mr. Haywood testified
that there would be two technicians and about 15 specialists to
whom the upgrade would assign work. There is no head count or
[Page 12]
other means of monitoring the comings and goings of individuals
in the shop area. (TR 438) Further, based on the shop's
configuration, he believes people could enter or leave the shop
without being seen. (TR 441-442) He believes the supervisors
are "flexible" regarding tardiness.
Mr. Juan Davila, an instrumentation specialist at the Unit
2 I&C shop, has been employed at the shop for about three
years. (TR 456) He generally corroborated the testimony of
the others regarding the early morning routine of the shop.
Mr. Davila, according to the gate log for August 23, 1989,
entered the protected area at 6:47 a.m. without being charged
with personal time. (TR 460) On September 20, 1989, although
paid to 3:00 p.m., he is shown in the gate log to have been
outside the protected area from 2:04 p.m. to 2:58 p.m. (TR
462-463; CX 18) He recalls being charged with one-half hour of
personal time for tardiness several weeks prior to the
hearing. He had called in to advise management of his
anticipated tardiness. (TR 466) He, too, is unaware of any
policy regarding the assessment of personal time for
tardiness. (TR 468) As in the case with the other employees,
he generally seeks approval of personal time off in advance,
and it is generally granted.
On September 8, 1989, he was the upgrade who filled out
the time card. He explained the failure, originally, to note
any personal time for tardiness because he had not noticed
either Vining or Ritchie come in late that day, nor had he been
told they were going to be late by anyone in authority. (TR
480-481) He believes that since the instant complaint was
filed, "more attention has been focused" on employee tardiness
and the assessment of personal time. Although unable to give
specifics, he believes that at one time in the past, he arrived
one-half hour late and was not charged with personal time. (TR
490-497) The arrival time of employees was not closely
monitored prior to August 1989. He was unaware of mr.
Atkinson's experience in being assessed personal time for
tardiness. (TR 505) But he does recall that Atkinson's
tardiness was sufficiently excessive that some fellow workers
called it to the supervisor's attention. (TR 507)
Mr. Michael Brown, Director of Employee Relations,
Northeast Utilities, explained the annual review procedure
and its purposes, an opportunity to record an employee's
[Page 13]
strengths and weaknesses and to discuss their performance with
supervisors. (TR 510) Poor attendance, either tardiness or
absenteeism, may result in a poor performance rating with
various consequences, such as the amount of merit increase one
might receive. (TR 515) Brown does not construe as a negative
comment the observation that an employee has used an
above-average amount of sick or personal time. (TR, 520)
Mr. Raymond Schleicher has been employed by Respondent for
about 15 years, about ten of which have been as an assistant
supervisor of the Unit 2 I&C shop. (TR 535-536) He prefaced
his testimony by indicating that prompted by Complainant's
testimony regarding the possible lack of coordination of the
clock at the entry gate, the gate logs, and the clock in the
I&C shop, he checked these clocks with his watch, which had
been chcked with the time tone of a local radio station, and
found them to be in harmony. (TR 536-539) I noted for the
record that in the absence of any allegation that the various
timing devices were specifically altered to Mr. DelCore's
detriment, the matter was not an issue in the case since the
times recorded by the company clocks applied to everyone
uniformly. (TR 540) Mr. Schleicher testified that once he is
made aware, he uses one-half hour as the break point at which
he assesses employees personal time for tardiness. (TR 546)
The leave policy at the shop is very liberal. Nevertheless,
employees are encouraged to call a supervisor if they
anticipate any problem arriving at work on time. This is
usually discussed before outages, when the staff is augmented
with persons who are employees of contractors retained to
assist during those periods. (TR 548-549) Personal time is
allowed for a wide range of personal needs of the employees,
and no set number of hours has been established as a limit. As
an example of this, Schleicher prepared a list of personal time
use by shop employees for the period January 1, 1989, to
October 21, 1989. The totals ranged from 60 hours to one hour.
Mr. Delcore had used 12 hours during this period. (TR 553; RX
J) To advance the position that "dependability" ratings in
employee's EDR are unrelated to use of personal time, Mr.
Schleicher explained that he compiled data used in RX K, an
exhibit tending to show that for calendar year 1988, there was
no clear relationship between an employee's dependability
rating and his use of personal time. (TR 555)
The early morning routine in the shop as described by this
[Page 14]
witness is not significantly different from the concensus of
the other witnesses, from his standpoint. He reviews plant
activities and reports of events occurring the preceding night,
conversing with individuals in planning and management. This
is often done outside his door, which does not give him a clear
view of the entrance door to the shop. No formal roll is taken
of employees. He also confirmed that during a portion of 1989,
an upgrade would be used to keep the time sheet, although this
task has since been reassigned to Peter Smith, the junior
assistant supervisor. Schleicher then signs the pay slips
before they are sent to payroll. Other than checking the
arithmetic, he does not check the entries made on pay slips in
detail, making corrections only when he has contradicting
personal knowledge. (TR 565) On August 24, 1989, he and
Hayward, who was an upgrade at the time, were standing in the
central passageway near the juncture of the administrative
section and the technical area where the coffee machine and
refrigerator are located and saw Complainant walk in the shop,
walk past the two men, place his lunch in the refrigerator, and
then walk back to his work area. Nothing was said by either
Hayward, Schleicher, or DelCore. (TR 567) After a while, he
went to DelCore and gave him an assignment. He had gone to
Mr. DelCore's work area at about 6:50 a.m. to give him the
assignment, but he was not there. A few minutes later, he
asked Hayward of DelCore's whereabouts. When DelCore arrived,
Schleicher looked at his watch and noticed the time to be 7:11
a.m. (TR 568-569) When Hayward asked how DelCore's time
should be recorded, Schleicher told him as personal time. In
this connection, Mr. Schleicher testified that while he
tolerates occasional early departures, up to 15 minutes, for
good reasons, he assesses 30 minutes of personal time when the
employee's absence reaches that point. (TR 572) He cited
several instances of employees' being assessed one-half hour
personal time, one being Mr. DelCore in January and July 1989.
(TR 575-577)
Turning his attention to the time sheet for September 8,
1989, CX 12 and its subsequent amendment, CX 13, Mr. Schleicher
indicated that sometime during the week of September 11th, in
the course of a conversation with John Becker, he learned of
the instant complaint being filed, and he was asked whether
there had been any others tardy. He recalled that Mr. Ritchie
had been and asked Smith to check on it. This was done via a
review of the gate logs, and eventually the entries for
[Page 15]
September 8th were obtained, which revealed Ritchie had arrived
at 7:15 a.m. He was assessed one-half hour personal time. (TR
582-584) He has made corrections of time cards in the past.
He does not consider the charging of personal time to have
negative connotations and does not consider it to have a
negative impact of any performance evaluation. (TR 586) He
has not been approached by Mr. DelCore regarding the assessment
of personal time. He also explained that individuals leave the
protected area during the day for a wide variety of company
authorized purposes beyond the reasons given by other
witnesses. (TR 539-592) Under cross-examination, Schleicher
reaffirmed that it was his practice to charge those persons
arriving more than 30 minutes late with one-half hour of
personal time, a policy he has adhered to for more than two
years. (TR 604-606)
The witness was next directed to review CX 23, an Employee
Personal Interview Statement, dated october 5, 1989, which he
signed, and asked to explain the statement therein, attributed
to him, that personal time is assessed to individuals who are
more than 15 minutes late. While the response was lengthy, the
explanation vas unclear. (TR 609-629) I interpret the
witness's explanation to be that he officially tolerates a
15-minute leeway but does not begin charging personal time
until 30 minutes have passed. After the first one-half hour,
time is assessed in quarter-hour segments.
On being recalled by Complainant's counsel, Mr. Schleicher
explained the changes in the time sheet for the week ending
September 8, 1989, being changed a second time, on December 4,
1989, to reflect that one hour of personal time was being
assessed for Mr. Vining. (CX 24; TR 762-764 ) This was in
addition to the earlier change of September 29, 1989,
pertaining to Mr. Ritchie's time.
Mr. Peter Smith, an assistant supervisor at the I&C shop,
Unit 2, for nearly two years and an employee of Respondent for
nearly ten years, testified that he knows and has worked as a
technician along side Complainant. He generally corroborated
Schleicher's testimony in his description of the shop's early
morning routine. He also confirmed that the use of upgrades
stopped in the fall of 1989. (TR 335-338) He reviewed CX 12
and CX 13 and agreed that Juan Davila was the upgrade who made
out the time sheet on September 8, 1989. Smith was not aware
[Page 16]
of Ritchie's tardiness on that day. (TR 642) The issue of
Mr. Vining's tardiness on that same day did not arise until he
was interviewed by a DOL investigator. (TR 645) Then the gate
logs were checked to ascertain the date of arrival, and an
appropriate change was sent to the timkeepers. (TR 647; CX 24)
He corroborated Schleicher's testimony that an individual would
not be assessed personal time until he was at least one-half
hour late. (TR 686) This was the Practice when he was a
technician and specialist and is the present practice. (TR
650) Although he was attending a training program on August
24, 1989, he would have assessed one-half hour personal time if
the same circumstances had presented themselves. In a review
of time sheets covering the period from August 1 through
September 20, 1989, Mr. Smith indicated that no one was ever
assessed personal time of less than one-half hour. (TR
669-670) Since the outage of October/November 1989, tardiness
in excess of 15 minutes has been assessed. (TR 687)
Mr. John Becker, the I&C shop, Unit 2, manager (formerly
called supervisor) testified that be began his career with
NNEC in 1980 as an associate engineer and was eventually
promoted to head the Unit 2 I&C shop in March 1989. (TR 701
He recalled his conversation with Complainant on September 20,
1989. The purpose of the conversation was to discuss what
Becker believed to be a change in DelCore's past practice of
bringing problems to his attention for possible resolution. He
expressed his concern in not being told of DelCore's problem in
the assessment of personal time. DelCore told him that when
that procedure was followed in the past, he was dissatisfied
with the results, believing "roadblocks" were placed in the way
of DOL investigators, and, therefore, intended to bring his
problems regarding labor discrimination directly to DOL.
Becker would learn of the matter via NNEC 's attorneys. (TR
704-706) Mr. DelCore felt that as long as his employer
continued to deny it was discriminating against him, he
believed it necessary to register his complaints directly to a
government agency. Mr. Becker alleges he told Mr. DelCore that
DelCore could go to DOL at any time but that it was still
"important that he bring problems to me so I could try and
resolve them." (TR 707) DelCore allegedly responded that the
discrimination problems were not within the I&C shop but higher
up in management. Becker specifically denied telling DelCore
he had to register complaints with him before going to DOL.
(TR 709) This position was stated in a memorandum to DelCore,
[Page 17]
dated October 4, 1989. (RX I) The memorandum was drafted to
make Becker's position "perfectly clear" as to his
understanding of the employee's rights and obligations. It is
attached hereto. (Attachment No. 1) The memorandum emphasizes
that: DelCore has the right to report "problems" to government
agencies, problems should be brought to Becker or his
subordinates, this latter step would be preferred as a first
course of action but is not a requirement. Becker also
suggests the use of an inhouse agency established to hear
complaints of employees who are "uncomfortable" in going to
their own supervisors. Lastly, the memorandum notes that while
DelCore had been assessed to be a "good communicator" in the
past, his change in communications pattern makes resolution of
problems more difficult, and he, DelCore, is "encouraged" "to
consider a more direct approach" with his concerns. (RX I) He
reviewed a draft of the memorandum with Complainant, considered
his comments and then revised it on his word processor, signed
it, and gave a copy to Mr. DelCore in person. (TR 744-5)
Becker acknowledged that he had also conferred with counsel and
others in the company before drafting the memorandum. (TR
745-752) He does not expect the meeting would have an adverse
effect on Complainant's rating.
Becker testified that while he, at times, is made aware by
DelCore of various technicial and other concerns, these are
later brought to outside agencies. on other decisions, he is
made aware of technical concerns when the agency personnel
bring them to his attention. (TR 728-734) Nevertheless, he
believes he can, and does, communicate effectively, with Mr.
DelCore. He would not hold any hostility against anyone,
including Complainant, who would bring complaints to outside
agencies. (TR 738)
Discussion and Conclusions
This case was brought under the employee protection
provision of the Energy Reorganization Act of 1974, as amended,
42 U.S.C. 5851 ("the Act"). The statute provides that:
-
. . . no employer subject to the provisions of
( the Act) . . . may discharge any employee or
otherwise discriminate against any employee with
respect to the employee's compensation, terms,
conditions, or privileges of employment because
the employee . . . engaged in any of the
activities specified in subsection (b) below:
[Page 18]-
(b) Any person is deemed to have violated
the particular federal law and these
regulatons if such person intimidates,
threatens, restrains, coerces, blacklists,
discharges, or in any other manner
discriminates against any employee who has
-
(1) commenced, or caused to be
commenced a proceeding under (the
Act) or a proceeding for the
administration or enforcement of any
requirement imposed under such
federal statute;
-
(2) testified or is about to
testify in any such proceeding; or
-
(3) assisted or participated, or is
about to assist or participate in
any manner in such a proceeding or
in any other action to carry out the
purpose of (the Act).
The employee protection provision, being remedial in
nature, should be broadly construed. Deford v. Secretary of
Labor, 700 F.2d 281, 286 (6th Cir. 1983).
For Complainant to establish a prima facie case, he must
prove, by a preponderance of the evidence, that:
1. The party charged with discrimination is an employer
subject to the Act;
2. That the complainant was an employee under the Act;
3. That the complaining employee was discharged or
otherwise discriminated against with respect to his
compensation, terms, conditions or privileges of employment;
4. That the employee engaged in protected activity;
5. That the employer knew or had knowledge that the
employee engaged in protected activity; and
[Page 19]
6. That the retaliation against the employee was
motivated, at least in part, by the employee's engaging in
protected activity.
Here, the parties agree as to items 1, 2, 4, and 5. I
conclude Complainant has failed to show that element No. 3
exists or took place. The sixth element of Complainant's prima
facie case has also not been shown.
The evidence clearly demonstrates, and I find, that Mr.
DelCore arrived at work (passed through the gate at the south
access point) at 7:03 a.m. (RX F) He proceeded to the I&C shop
and was seen to enter some time thereafter. (TR 440, 568-569)
While the precise times are disputed by DelCore, his assertions
are not convincing and are rejected. Obviously, even if the
clocks were some seconds off, all employees were subject to the
same time measuring devices and the times they reflected. The
parties agree, however, that he entered without offering any
excuse for his tardiness, despite the fact the upgrade and one
of his supervisors were nearby.
Complainant asserts that his being assessed one-half hour
personal time for the tardiness was not the usual practice and
was motivated as retaliation for his engaging in protected
activity. This has not been proven. Of the samples cited to
show disparate treatment, there is no instance shown where an
individual arrived more than one-half hour late, was seen by an
upgrade or supervisor, offered no excuse, either prior to or at
the time of the tardiness, and was not charged with personal
time. While some of DelCore's co-workers were shown to have
been more than 30 minutes late, it was not established they
were seen arriving late by an upgrade or supervisor. In
contrast, it epperas usually they were at least courteous
enough to call in advance. Given the fact that the required
hours of service were apparently, casually observed and
enforced, I can understand different treatment being accorded
one who shows sufficient concern about his tardiness so as to
call his supervisor to a prise him of the circumstances.
Complainant has failed to show he was singled out, given the
circumstances surrounding his tardiness, in contrast to the
others. For example, Robert Atkinson testified he was assessed
personal time of as little as one-half hour for tardiness in
1988 and 1989. (TR 326) In the case of Douglas Vining, there
[Page 20]
is no showing his tardiness of approximately one hour on
September 8, 1989, was observed by Schleicher or Davila and
purposely ignored. Mr. Ritchie's tardiness was also undedected
at the time. (TR 480-481) The time cards were later
corrected, when Schleicher learned of the situation. Ritchie
testified he "called in" but does not specify to whom he
spoke. (TR 234) Davila testified he was unaware of Ritchie's
tardiness. I cannot conclude from this that Ritchie was
treated differently from Complainant. Similarly, while Vining
testified he usually tells a supervisor of his tardiness, he
failed to specify to whom he reported his tardiness on
September 8, 1989. (TR 407) As a matter of fact, Vining had
been warned about his repeated tardiness in connection with his
1988 EDR. (TR 403) While Complainant, in his brief and at
trial, suggests some sinister purpose behind the subsequent
changes in the time cards of these two individuals by
Schleicher sometime after the event, I cannot accept the
evidence as proving anything other than a correction was made,
based on new information, of a past error. The date the
corrections were made was, in each instance, clearly noted on
the card. (CX 24) All in all, reviewing the testimony of all
the witnesses and their demeanor, my clear impression and
conclusion is that Complainant was treated with equal
liberality in his daily comings and goings as his fellow
workers.
Next, we come to the issue raised by Complainant regarding
the allegation that his office manager, John Becker, ordered
him to report complaints to management before going to a
government agency or suffer the consequences of a poor
performance rating for "communicating."
This is a more difficult aspect of the case. It is
difficult to know exactly what was said by whom during that
first meeting. It is a rather nice point to communicate and to
understand -- the balancing of management's need to know so as
to address matters within its legitimate domain and an
employee's statutory right to register complaints to a
government agency. As to what was said, it is Mr. DelCore's
word against that of Mr. Becker. In the circumstances, I
cannot say which was the better recollection. Consequently,
Complainant has not met his burden. As to the October 4th
memorandum purporting to memorialize what was said, obviously,
the parties also disagree as to its accuracy and, therefore, is
[Page 21]
not dispositive of the issue.
To the extent that the memorandum represents Becker's
policy regarding DelCore's rights and duties, it appears to
tread the fine line rather well in delineating what Mr. DelCore
can do by way of communicating with government agencies and
what he should do in satisfaction of his responsibilities as an
employee.
RECOMMENDED ORDER
The complaint is DENIED.
ANTHONY J. IACOBO
Administrative Law Judge
Boston, Massachusetts
AJI:ln
Attachment: Memorandum
ATTACHMENT 1
CONFIDENTIAL
October 4, 1989
To: Don DelCore Sr.
Instrument Specialist - Unit 2
From: John D. Becker
I&C Supervisor - Unit 2
Subject: Communications
On September 20, 1989 we met in my office and had a good
discussion on the issue of communication with your
supervision. I want to follow up with this memo to make sure
two points we discussed are clear.
1. You have the right to report problems to outside agencies
such as the NRC or Department of Labor at any time you feel
is appropriate. I encourage you to do this whenever you feel
it is appropriate.
2. I do expect you to bring what you perceive as problems to
my attention, either directly or through Ray or Pete.
Although I think it is desireable, you need not report your
concerns to supervision before reporting them to any outside
agency.
If you feel you would not get an adequate response from us, I
suggest you consider contacting the Nuclear Concerns Program
Manager at extension 4349. This program provides another
communications path which is useful when an employee feels
uncomfortable about going to his supervision with a concern.
Don, generally, your 1989 performance has demonstrated your
ability to be a good communicator. I'm concerned that recent
changes in your willingness to communicate with me on
important issues and your stated intention not to directly
inform your supervision of your discrimination concerns makes
their resolution exceeding difficult. I encourage you to
consider a more direct approach so that I can achieve
resolution of your concerns.
c: R. O. Schleicher
P. L. Smith
[ENDNOTES]
