OCTOBER 28, 1997

CASE NO. 97-ERA-34

In the Matter of

ALAIN ARTAYET
    Complainant

    v.

MORRISON KNUDSEN CORPORATION
    Respondent

Appearances:

Steven D. Bell, Esq.
Lynn R. Rogozinski, Esq.
    For the Complainant

Keith A. Ashmus, Esq. Heather L. Areklett, Esq.
    For the Respondent

BEFORE: DANIEL L. LELAND
    Administrative Law Judge

   This case arises under the employee protection provisions of the Energy Reorganization Act of 1974 (ERA), 42 U.S.C. § 5851, which prohibits Nuclear Regulatory

Commission Licensees from discharging or otherwise discriminating against an employee who has engaged in activity protected under the Act. Alain Artayet (complainant) filed a complaint under the Act on February 18, 1997, which was investigated by the Occupational Safety and Health Administration and found to be without merit. Complainant made a timely request for a hearing before an administrative law judge, and a hearing was held before the undersigned in Cleveland, Ohio on June 11 and 12, 1997. Complainant's exhibits (CX) 5, 6, 12, 20, 26, 51, 52, and 53, and respondent's exhibits (RX) A-L were admitted into evidence. At the close of the hearing the parties were given sixty days to submit briefs, and the due date for filing briefs was later extended to September 22, 1997. Both parties filed timely briefs.

   Complainant holds a Bachelor of Science Degree in Welding Engineering from Ohio State University and began working at Morrison Knudsen Corporation (respondent) in June 1988 as a Corporate Welding Engineer, also called Group Welding Engineer (GWE). (TR 33) Respondent is an international engineering and construction company which performs work on nuclear power plants among others. The GWE is located in respondent's Quality Assurance Department. (TR 33) The head of the Quality Assurance Department is Tom Zarges, the Division Executive is Lou Pardi, and the Group Quality Director is Andrew Walcutt, complainant's immediate superior. (TR 35; CX 52) The quality assurance program is required by 10 CFR 50. (TR 34) In 1995, respondent and Duke Engineering Services formed a company called SGT Ltd. which replaces steam generators at nuclear power plants and which has its own quality assurance program. (TR 38; CX 53) The president of SGT Ltd. is Martin Cepkauskas and the Group Quality Director is Andrew Walcutt to whom complainant reported. (TR 39) As GWE, complainant was responsible for oversight of the activities of Project Welding Engineers (PWE) and qualifying welding procedures. (TR 41)

   In 1995, SGT Ltd. was awarded a contract to replace two steam generators at the Point Beach Unit Two nuclear power plant in Two Rivers, Wisconsin. (TR 43) The project required a large amount of welding. (TR 44) In May 1996, Max Bingham, the project manager, asked complainant to help develop the welding procedures to be used at Point Beach. (TR 45-46) Bingham wanted complainant to delegate the qualification of the welding procedures at Point Beach to the PWE, Eugene "Rusty" Gorden. (TR 46) Qualification of welding procedures was the function of the GWE. (TR 60-63) Complainant at first refused because he was unfamiliar with Gorden's technical capabilities. (TR 47) Complainant then began the process of qualifying the welds at a site in Memphis, Tennessee in

May or June 1996. (TR 49) In July 1996, Bingham again asked complainant to delegate qualification of the welds at Point Beach to Gorden and complainant's refusal to do so angered Bingham. (TR 50-51) Complainant then acquiesced in the delegation of the remaining welds which Gorden accomplished in Chicago. (TR 53)

    Complainant emphasizes that the PWE, not the GWE, was responsible for developing the site-specific welding procedures to be used at Point Beach. (TR 55, 65-66; see also CX 51; RX C 1, p. 1; § 9.2.5) The GWE was responsible for submitting generic welding procedures to the PWE who tailored them to the needs at Point Beach. (TR 55) Gorden was supposed to send the site-specific welding procedures to complainant for review but he failed to do so despite complainant's request to see them. (TR 56-57) At the end of October 1996, complainant for the first time reviewed the site-specific welding procedures written by Gorden and found five of them to be unacceptable. (TR 57) On November 6, 1996, complainant sent a fax to Gorden identifying the deficient welding procedures and calling Gorden's attention to the codes of the American Society of Mechanical Engineers. (TR 58-60; CX 6) Gorden, however, ignored complainant's comments. (TR 62) Complainant stated that he informed Walcutt of the problems in the welding procedures for Point Beach but Walcutt felt that as the Hartford Insurance Company audit was coming up on December 30-31, 1996, nothing should be done to correct the problems. (TR 70) (Walcutt denies that complainant informed him of the welding deficiencies at Point Beach or that Walcutt told him to take no action. (TR 247)). Complainant's offer to work with Gorden to remedy the welding problems was also assertedly rejected. (TR 71)

   During the week of December 16, 1996, complainant states that Pardi met with him and removed him from nuclear responsibilities for steam generator replacement citing complainant's personality conflicts with Cepkauskas and Bingham. (TR 72) (Pardi denied that this meeting ever took place or that he removed complainant from his supervision of welding at nuclear power plants at this time. (TR 163)) Walcutt asked complainant to prepare for the upcoming Hartford audit and complainant informed him that the audit would reveal deficiencies in the welding procedures at Point Beach. (TR 75-76) The audit was performed on December 30-31, 1996, and on January 6, 1997, Hartford issued a report finding fault with the Point Beach welding procedures. (TR 76-77, 79-80; RX D 1) Upon reading the audit report Walcutt asked complainant to review all the welding procedures for Point Beach. (TR 80) Complainant reviewed the Point Beach welding procedures and wrote an eight page report which he gave to Walcutt on January 14, 1997 who in turn delivered a copy to Pardi and Bingham. (TR 80-81; see CX 12) On the morning of January 15, Walcutt also asked complainant to prepare a report on the welding procedures at the D. C. Cook project. (TR 83-84) Complainant informed Walcutt that there were deficiencies in the D. C. Cook project which were similar to those at Point Beach. (TR 85-86)

   Later on the morning of January 15, complainant was summoned to the office of Drew Edleman, complainant's administrative superior, who told complainant that he was being removed from the GWE position because of personality conflicts with Cepkauskas

and Bingham. (TR 86) After his removal as GWE complainant continued to work on his report on D. C. Cook and submitted a report on the welding deficiencies at that facility on January 22, 1997. (TR 87, 264-267; CX 20) Complainant was transferred to Parkersburg, WV on February 7, 1997 as an area field engineer on the night shift. (TR 88) Since that date, he has been living away from his family in Cleveland and has been unable to participate in his children's school activities. (TR 88) Complainant has incurred approximately $10,000 in attorney fees in connection with this litigation. (TR 89)

   Louis E. Pardi, whose title is executive vice president of respondent's Power Division, testified that he relied on the complainant to be respondent's welding expert in all matters, particularly qualification of welds, development of corporate welding procedures, and solving welding problems that arose on specific sites. (TR 156, 159) He recalled being told that there was friction between complainant and project personnel at Point Beach regarding qualification of welds and specific welding requirements. (TR 159-160) Pardi remembered seeing a memo from the complainant that drop weight testing was not required at Point Beach which is contrary to what he stated about the D. C. Cook project. (TR 161) In his testimony, Cepkauskas also mentioned the friction between complainant and site personnel and the memo regarding drop weight testing and that he informed Pardi of this. (TR 146, 147) Neither Pardi nor Cepkauskas could produce the memo and Pardi admitted that he had not read the memo. (TR 150, 190) After being informed of the welding deficiencies found in the Hartford audit, Pardi decided to remove complainant as GWE. (TR 161) As complainant was not in Pardi's chain of command, Pardi told Edleman about the findings in the audit, and after rejecting the idea of relieving complainant only of his jurisdiction over nuclear facilities, they decided to relieve complainant of his duties as GWE. (TR 163-164) The final decision to terminate complainant was made on January 15. (TR 164; see also TR 204-206) Complainant's memorandum regarding Point Beach was considered when the decision was made. (TR 196-197) Pardi averred that the decision to remove the complainant was based on his friction with the project personnel, his determination not to use drop weight testing, and the Hartford audit. (TR 165-166)

   Andrew Walcutt is the Group Quality Director for the respondent and was complainant's supervisor. (TR 235-236) He stated that the GWE is responsible for development of the corporate welding program, adherence to the welding codes, providing technical advice to project personnel, and qualification of welding procedures. (TR 236) He recalled a meeting complainant and he had with Gorden in November or December 1995 where an agreement had been reached between complainant and Gorden, but complainant changed his mind the next day. Walcutt told complainant that he should not go back on his word. (TR 237-238) Walcutt also referred to a meeting in July 1996 among Bingham, complainant and himself in which Bingham expressed dissatisfaction with complainant's performance, particularly his delegation of qualifying welds to some one who was not working at Point Beach. (TR 241-242) In the Fall of 1996, Pardi told Walcutt that he had lost confidence in complainant because he failed to recommend drop weight testing. (TR 242-243) Walcutt later found, however, that complainant had not taken this position. (TR 243-244, 281-282) Walcutt also stated that the failure of the

welds in Memphis was caused by a discrepancy in testing requirements and was not solely complainant's fault. (TR 244-245) The witness denied that complainant told him that Gorden had failed to respond to his criticisms of the site-specific welds at Point Beach, or that he ordered complainant not to remedy any deficiencies. (TR 247)

   Following the Hartford audit, Walcutt instructed complainant to review all the site-specific welding procedures at Point Beach. (TR 250) On January 28, 1995, Walcutt wrote a memo to Tom Zarges (RX D) stating in part that the errors found in the audit could have been prevented by effective communication between the GWE and the PWE. (TR 254) Complainant was not solely responsible for the problems found by the audit and Gorden also contributed to the breakdown in communications. Id. Walcutt recommended that Gorden be replaced as PWE. (TR 254-255) The witness was told by complainant that D. C. Cook had similar problems to those at Point Beach, but he did not ask complainant to investigate D. C. Cook. (TR 256) No mention of complainant's review of the D. C. Cook project was made to Pardi, Edleman, or Zarges. (TR 256-257) Walcutt acknowledged that complainant's reassignment to Parkersburg occurred after he wrote the memo about D. C. Cook, but he denies that there was any connection. (TR 261, 265, 266-267)

   Gorden developed the site specific welding procedures for Point Beach and in so doing he changed the corporate welding procedures, which was a violation of respondent's quality assurance program. (TR 270-272) Walcutt told Pardi and Cepkauskas that the problems in Point Beach's welding procedures identified by complainant were not his fault. (TR 274) Complainant always performed competently and professionally as a welding engineer, but had problems communicating. (TR 275) The only valid reason to remove complainant from his position was his failure to communicate with the project team. (TR 294) This problem was not mentioned, however, in complainant's evaluation in December 1996. (See RX G; see also TR 231-232)

   42 U.S.C. § 5851 provides that:

(1) No employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee...

(A) notified his employer of an alleged violation of this chapter or the Atomic Energy Act of 1954;

(B) refused to engage in any practice made unlawful by this chapter or the Atomic Energy Act of 1954, if the employee has identified the alleged illegality to the employer;

(C) testified before Congress or at any Federal or State proceeding regarding any provision (or proposed provision) of this chapter or the Atomic Energy Act of 1954;

(D) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter or the Atomic Energy Act of 1954, ... or a proceeding for the administration or enforcement of any requirement imposed under this chapter or the Atomic Energy Act of 1954, as amended;

(E) testified or is about to testify in any such proceeding or;

(F) assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other manner in such a proceeding or in any other action to carry out the purpose of the Atomic Energy Act of 1954, as amended.

   Complainant alleges three separate adverse employment actions taken as a result of his protected activity: (1) his removal from jurisdiction over nuclear power plants in December 1996 as a result of his finding of welding deficiencies at Point Beach, (2) his removal as GWE on January 15, 1997 resulting from his January 14, 1997 report on the Point Beach welding problems, and (3) his reassignment to Parkersburg, WV following his report on the flaws in the welding procedures at D. C. Cook. It is necessary to determine if complainant has made a prima facie case as to each of these incidents.

   Respondent concedes that is subject to the Act. Moreover, complainant's performance of quality assurance functions constitutes protected activity under the Act. See Mackowiak v. University Nuclear Systems, Inc., 735 F. 2d 1159, 1163 (9th Cir. 1984), Bassett v. Niagara Mohawk Power Co., 86-ERA-2 (Sec'y, July 9, 1986). With regard to the first allegation of retaliation, Pardi denied that a meeting with complainant took place in

December 1996 in which he removed him from his nuclear responsibilities and his version is supported by the testimony of Edleman and Walcutt. Assuming that Pardi did remove complainant from jurisdiction over nuclear power plants and that this constitutes adverse employment action, the evidence is not persuasive that Pardi knew about complainant's protected activity prior to the meeting and that his removal was in retaliation for his protected activity. I reach the same conclusion regarding complainant's report on the D. C. Cook project. Walcutt credibly testified that he never told Zarges, Pardi, or Edleman of complainant's report on the welding deficiencies at D. C. Cook, and therefore, his reassignment to Parkersburg could not have been in retaliation for his report. Therefore, complainant has failed to make out a prima facie case with regard to these two incidents.

   I reach a different conclusion with regard to complainant's removal as GWE and subsequent reassignment to Parkersburg. Respondent argues that Pardi and Edleman had already decided to replace complainant as GWE before they were aware that he drafted the report on the Point Beach welding deficiencies on January 14, but I do not find Pardi's testimony to be credible on this point. Furthermore, the adverse employment action, i.e., complainant's actual removal from his position as GWE, did not take place until January 15, one day after Pardi was given the report on Point Beach. Therefore, I find that respondent was aware of complainant's protected activity when he was replaced as GWE. Respondent also maintains that complainant's removal as GWE and reassignment to a different position in Parkersburg was not an adverse employment action because he was not discharged and there was no decrease in pay. However, complainant's new position in Parkersburg as an area field engineer does not have the corporate responsibilities involved in his prior position as GWE and is clearly less prestigious. See DeFord v. Secretary of Labor, 700 F. 2d 281, 287 (6th Cir. 1983). See also McMahan v. California Water Quality Control Board, San Diego Region, 90-WPC-1 (Sec'y, July 16, 1993), in which it was held that a transfer was an adverse action in that it prevented the complainant from performing supervisory duties and field enforcement which he preferred. Respondent also argues that "relocation is a way of life" at Morrison Knudsen and that respondent maintains facilities much further from Cleveland than Parkersburg to which complainant could have been reassigned. The fact that complainant could have been sent to more remote locations has no significance, however, as complainant's reassignment from Cleveland to Parkersburg has clearly inconvenienced him and separated him from his home and family in Cleveland. I therefore conclude that complainant's removal as GWE and his subsequent reassignment to an inferior job in Parkersburg constitute adverse employment action. Finally, complainant's removal from the position as GWE within twenty four hours after he engaged in protected conduct raises the inference as a matter of law that his removal was in retaliation for his protected activity. Couty v. Dole, 886 F. 2d 147, 148 (8th Cir. 1989). Complainant has therefore made out a prima facie case.

   Respondent has cited as the reasons for complainant's removal and reassignment his overall performance as GWE, more specifically his recommendation that drop weight testing not be used, the deficiencies found in the Hartford audit, and his friction with on-site personnel. Complainant therefore has the burden of proving that these reasons are pretextual. Kahn, 64 F. 3d at 278.

   The drop weight testing excuse clearly lacks credibility. Pardi testified of seeing a memo shown to him by Cepkauskas regarding the drop weight testing but could not recall the content of the memo. Cepkauskas was unable to produce the memo. Walcutt testified that complainant had never recommended that drop weight testing not be used thereby indicating that Pardi's asserted loss of confidence in complainant was based on an erroneous premise. Pardi also blamed the welding defects noted in the Hartford audit on complainant, but Walcutt, who has far more technical knowledge than Pardi regarding the welding requirements, stated that Gorden was responsible for these errors as it was his obligation to develop the site-specific welding procedures. Gorden actually changed the corporate welding procedures complainant had sent him in violation of the respondent's quality assurance program. When complainant discovered the unacceptable welding specifications devised by Gorden, he informed him of the deficiencies and tried without success to have Gorden remedy them. Moreover, Walcutt informed Pardi that the deficiencies cited in the audit were not complainant's fault, which indicates that Pardi knew that complainant was not to blame and removed him anyway. Walcutt stated that complainant always acted in a competent and professional manner as a welding engineer. Thus the first two articulated reasons for removing complainant are clearly pretextual.

   Walcutt asserted that the only valid reason for removing complainant as GWE was his failure to communicate with project personnel. Initially, I find it difficult to accept that complainant would be relieved of his duties for this relatively insignificant reason. There is certainly no evidence in the record that this so called "friction" with on site personnel was so persistent or egregious that it affected the efficiency of respondent's construction work. It would also appear that the cause of much of the "friction" was complainant's insistence on not delegating the qualification of the welds to Gorden, whose competence he questioned, apparently with good reason. Some of the "friction" also resulted from complainant's strict adherence to the standards in respondent's quality assurance program and the natural tension that may have taken place with the project personnel who were attempting to adhere to precise schedules. As the court in Mackowiak observed, "contractors regulated by § 5851 may not discharge quality control inspectors because they do their job too well." Mackowiak, 735 F. 2d at 1163. Finally, I note that Walcutt did not discuss complainant's communication problems in the performance evaluation completed in December 1996 only twenty-three days before he was removed as GWE allegedly for this reason. If complainant's failure to communicate had been such a serious problem, it would have been cited in his performance appraisal. Therefore, I conclude that this purported reason was also pretextual.

   As complainant has made out a prima facie case and proven that respondent's purported reasons for the adverse employment action were pretextual, I conclude

that respondent has violated § 5851. Complainant is therefore entitled to reinstatement to his position as GWE and reimbursement for attorney fees.

   Morrison Knudsen Corporation is ORDERED to:

   (1) Reinstate complainant to the position of Group Welding Engineer at its office in Cleveland, Ohio and to the same compensation, terms, conditions, and privileges of employment he previously had, and

   (2) Reimburse complainant for the reasonable cost of attorney fees he has expended in pursuing his complaint.

   Within thirty (30) days of the date of this decision and order, complainant's counsel shall submit a fully supported fee application detailing his hourly fee, the number of hours expended on this proceeding, and any associated litigation expenses. Respondent will have fifteen (15) days to respond with any objections.

       DANIEL L. LELAND
       Administrative Law Judge

DLL/lab

NOTICE: This Recommended Decision and Order and the administrative file in this matter will be forwarded for final decision to the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, DC 20210. The Administrative Review Board was delegated jurisdiction by Secretary Order dated April 17, 1996, to issue final decisions in employee protection cases adjudicated under the regulations at 29 C.F.R. Parts 24 and 1978. See 61 Fed. Reg. 19978 and 19982 (1996).