DATE: January 22, 1998

CASE NO.: 97-ERA-00052

In the Matter of

MARIANNE GRIFFITH
   Complainant

    v.

WACKENHUT CORPORATION
   Respondent

Appearances:

    Marianne Griffith, pro se

    Adin C. Goldberg, Esquire
       On behalf of Respondent

Before: Ainsworth H. Brown
    Administrative Law Judge

   This matter concerns the request for hearing filed by the employer contesting the ostensibly mild action taken by the District Director, Lawrenceville, New Jersey, Office of Workers Compensation Programs, requiring "...training of all its supervisors and staff regarding the anti-discrimination provisions of the Energy Reorganization Act."

   On June 3, 1997, Richard Richards, provided the notice containing the above quoted portion and the Respondent sought a hearing in the matter. The proceeding took place in Camden, New Jersey, on September 9, 1997. Ms. Griffith appeared without legal representation.

   The thrust of the Respondent's case is that Ms. Griffith did not engage in protected activity, that if she did, the Respondent did not know about it to have discriminated against her so that the rescinded action was not premised on any protected activity (also that the action was for a nondiscrimatory reason).

   Wackenhut's two witnesses, Harper and Kindilien, testified that they had participated in an investigation of an incident involving a security breach at the Salem Nuclear Plant (this is the term that is used to describe this facility that is located in southern New Jersey by the Delaware River). The investigation began in late August 1996.

   Among other security personnel, Ms. Griffith, was interviewed. In only some details does the testimony conflict as to the content of the interviews. The conflict bears on whether she was advised that the team was merely seeking information and that she would be immune from any disciplinary action. The purpose of the interview related to an incident wherein a contractor employee penetrated a security area without being "patted down" when he had set off the security alarm several times. The Complainant and her partner, being females, could not do this search because the individual was male. The Respondent's testimony was that when Ms. Griffith left to obtain a male guard the subject went on his way and that there was a breach of security as a result.

   In the course of a second interview, the Complainant disclosed another incident that was a concern of hers that was described as "crane gate" incident of the previous June when despite the protestations of Ms. Griffith her immediate supervisor had disdained to conduct a "crawl test" to make doubly sure that the gate was secure after it had been opened to admit a vehicle.

   During the Kindilien testimony I was interested to learn that the company policy placed a heavy burden upon the one learning of a security breach to notify a supervisor within one hour of the incident and then to make sure that one needed to go up the chain of command to make sure that there was a resolution of the matter in question.

   At page 83 of the hearing transcript my inquiry of Mr. Kindilien begins. His responses I find shed significant light on this matter respecting the widespread problems the investigative team found at the plant. The team identified problems that resulted from a shared responsibility with the Respondent and the utility relating to communication. The witness agreed that training would be appropriate to improve communication such as suggested by the District Director.

   The witness admitted that Wackenhut had to pay a substantial fine to the utility "in regards to some of these events." Earlier this witness had described the existence of a severe employee "cultural" problem respecting procedure compliance.

   Ms. Griffith testified in a sincere and straightforward manner. Her

demeanor was such that it instilled confidence in the information that she presented. Her description of events appeared unvarnished and without embellishment or excess. She said that she was told that they were investigating the morale of the utility and the security force personnel. The no pat down incident was brought up and why she did not trust supervision. She advised the three interviewers that it was her understanding that she was to adhere to all verbal and written instructions from supervisors. At hearing she referred to a missing page from EX 5 as support for this understanding. She described to them that there was poor communication between employees and supervisors, the very observation described earlier by Respondent's witnesses.

   Then the crane gate incident was discussed and the witness told the interviewers that "...so information was being relayed over the radio with Mr. Crouch (sic) ..." She also mentioned a Mr. Campbell who was being apprized of the incident, as the person who was in charge of the shift (TR 98).

   Ms. Griffith went on to describe in detail the crane gate incident as well as the pat down one. She testified that she had prepared a statement for her union so that it could discuss the crane gate matter to Mr. Matthews, the program manager at the time. It was immediately after the August interviewing that Ms. Griffith was placed on administrative leave and then suspended. Then this action was rescinded.

   She stated that after her restoration things were improved at the plant but "...I just hadn't fully gotten over the fact of, you know, people - - they want you to be honest about things and bring things out in the open like if there's a problem with say, a procedure or an event that takes place, but then as soon as you bring something to their attention, they discipline you, and just like when they had taped the doors to the badge issue booths, with that issue..." The witness felt that she was being treated differently. Although this is subjective it is important to appreciate how she felt.

   Ms. Griffith reported that it was only after the attempted suspension that there was a posting of whistle blower rights. In the process of filing her complaint a Mr. Carney told her that this was the first he had heard of what she had described. Later, when she received the letter that the finding was in her favor she felt confident that there would be training for supervisors. She also said that she is pleased with the new manager, Mr. Cogdell.

   As can be readily seen from Ms. Griffith's testimony at least with the crane gate event she made her immediate supervisor aware of her safety concern and this in part caused the shift manager to be aware of what happened. Further, when she related all of the cited incidents to the investigative team, including Messrs. Harper and Kindilien, she was, in fact, engaging in protected activity. When the disciplinary

action was taken shortly after her interviews the action can only be viewed to have been the proximate result of her protected activity, irrespective of whether Mr. Richard's statement of her contact with the NRC was accurate or not.

   The issues in this matter are not dependent on what Mr. Richards' rationale or fact finding may have been since this is a de novo inquiry wherein I am to inquire fully into relevant evidence relating to the dispute. Her action of talking her concern to her union first does not vitiate the fact that she raised a question about various events before the interviewers. Further, it does not make any difference that Mr. Richards' office did not interview Kindilien or Harper. They testified before me and their testimony only differed with Griffith's marginally.

   While Ms. Griffith conceded that there was definite improvement as the company witnesses pointed out that there was a need for acculturation at the plant and she was still uneasy about having brought up the issues she had described in the interviewing process, provoking her filing of her complaint with DOL.

   Although Wackenhut substantially purged itself of its discrimination by rescinding its suspension action, its persistence in maintaining this action demonstrates a lack of understanding of the gravity of its action against the Complainant. This understanding can be achieved through training.

   In addition to certifying and describing its compliance with the District Director's remedy relating to training, the Respondent should also reimburse Ms. Griffith for the costs of litigation, including but not limited to the cost of her travel to the hearing.

   SO ORDERED.

       Ainsworth H. Brown
       Administrative Law Judge

Camden, New Jersey

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. See 61 Fed. Reg. 19978 and 19982 (1996).