CASE NO. 84-WPC-1

In the Matter of

MURPHY R. CONLEY
    Complainant

    v.

McCLELLAN AIR FORCE BASE
    Respondent

Murphy R. Conley
    10004 Bromley Way
    Sacramento, CA 95827
       In Propria Persona

Steven E. Sherwood, Esq.
    U.S. Air Force
    SM-ALC/JA
    McClellan AFB, CA 95652
       For the Respondent

Before: EDWARD C. BURCH
    Administrative Law Judge

    Complainant, Conley Murphy, contends that he was discriminated against by McClellan Air Force Base, in violation of the provisions of Section 507 of the Federal water Pollution Control Act, as amended, 33 U.S.C. §1251, et seq. (the Act), and the rules and regulations implementing said Act. He contends the official notice of reprimand was issued because of his cooperation with the State Water Resource Control Board.

    Respondent contends 1) that the Administrative Law Judge is without jurisdiction to adjudicate this case because the Act excludes the Federal Government under the definition of "person" as used in 33 U.S.C. §1367, 2) that complainant is untimely for failure to file the alleged violations within 30 days after its occurrence, 3) that they are justified in placing an official letter of reprimand in complainant's file due to his failure to adhere to proper procedures resulting in loss of production for two (2) days.

    It is concluded there was no violation of the Act.

    A hearing was held on August 2, 1984 in Sacramento, California. The complainant represented himself. The respondent was represented by counsel. Each side was afforded full opportunity to adduce evidence and to examine and cross-examine witnesses.

    Respondent in a Motion to Dismiss, raised the issue of whether the Office of Administrative Law Judges has jurisdiction to adjudicate this case. 33 U.S.C. §1367 does not specifically include the Federal Government in its definition of persons bound by this Act. However, 33 U.S.C. §1323 (a) provides that:

"Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the Federal Government(1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants, and each officer, agent, or employee thereof in the performance of his official duties, shall be subject to, and comply with all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner, and to the same extent as any nongovernmental entity including the payment of reasonable service charges.

"The preceding sentence shall apply (A) to any requirement respecting permits and any other requirement whether substantive or procedural (including any recordkeeping or reporting requirement, any requirement respecting permits

and any other requirement, whatsoever), (B) to the exercise of any Federal, State, or local administrative authority and (C) to any process and sanction, whether enforced in Federal, State, or local courts or in any other manner."

    In reading the all inclusive language, "and any other requirement, whatsoever", regarding any substantive or procedural requirements, I find that the Act intended to include Federal agencies in the prevention of pollution. This section does not contain language restricting it to application only to Subchapter III of Title 33 U.S.C. Chapter 26. Hence, the motion to Dismiss is denied.

    Here, respondent manufactures aircraft parts for different types of aircraft through metal deposition of aluminum (TR 56-57). The main ingredients are sodium hydroxide and plain stock of aluminum sheets. Using sodium hydroxide, the chem mill plant can engineer template designs by taking away metal. Because the sodium hydroxide must be properly filtered to avoid water pollution, respondent is subject to the Act.

    33 U.S.C. §1367 provides in pertinent part that:

"(a) No person shall fire, or in any other way discriminate against, or cause to be fired or discriminated against, any employee or any authorized representative of employees by reason of the fact that such employee or representative has filed, instituted, or caused to be filed or instituted any proceeding under this chapter, or has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this chapter.

"(b) Any employee or a representative of employees who believes that he has been fired or otherwise discriminated against by any person in violation of subsection (a) of this section may, within thirty days after such alleged violation occurs, apply to the Secretary of Labor for a review of such firing or alleged discrimination."

    29 C.F.R. §24.2 provides:

"(a) The several statutory employee protection provisions listed in §24.1, provide that no employer subject to the provisions of the Federal statute of which these protective provisions are a part 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, or any person acting pursuant to the employee's request, engaged in any of the activities specified in paragraph (b) of this section.

"(b) Any person is deemed to have violated the particular Federal law and these regulations 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, or is about to commence or cause to be commenced a proceeding under one of the Federal statutes listed in §24.1 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 purposes of such Federal statute."

    29 C.F.R. §24.3 provides:

"(a) Who may file. An employee who believes that he or she has been discriminated against by an employer in violation of any of the statutes listed in §24.1(a) may file, or may another person file on his or her behalf, a complaint alleging such discrimination. (b) Time of filing. Any complaint shall be filed within 30 days after the occurrence of the alleged violation. For the purpose of determining timeliness of filing, a complaint filed by mail shall be deemed filed as of the date of mailing."

    Respondent alleges that complainant did not file his complaint within the 30 day time limitation provided by the Act, since the first counseling began on March 21, 1984 and complainant did not file until May 9, 1984 (TR 9). The evidence indicates, and I find, that the proposed reprimand which resulted in a two year official Notice of Reprimand was issued on May 8, 1984 and complainant filed a complaint with this office on May 9, 1984 (ALJ #1, letter dated 8

May 1984 and letter dated 9 May 1984). Hence, the claim was timely filed.

    Finally, were the employer's actions discriminatory?

    Complainant has been employed for six years by respondent as a Wastewater/Industrial Treatment Plant Operator. Complainant previously worked in the USAF for 23 years as a senior non-commissioned officer. At the time of this hearing complainant was 48 years of age, born March 21, 1936 (ALJ #1, letter dated 23 March 1984).

    Following an appeal to the office of Operator Certification, State of California, the employer on December 14, 1982 issued a notice of proposed action, to suspend complainant from duty without pay for 3 calandar days, for knowingly making false and unfounded statements. (ALJ #1, notice dated December 14, 1982). Complainant had sent a memo requesting an informal investigation of operator certification status at McClellan AFB. It was not until January 17, 1983 that an internal memo was issued by Operator Certification stating that after "serious personnel problems result(ing) from McClellan's final supervisory selection" on April 1982, McClellan was finally in full compliance with State Board certification requirements. There were also certification deficiencies for Operators-In-Training (OIT), which was corrected in April 1982 (ALJ #1, letter dated January 17, 1983). The allegations made by the respondent were dropped on March 2, 1983 and all evidence of reprimand was removed from complainant's file (ALJ #1, Agreement dated March 2, 1983).

    On Feburary 2, 1984 the State Water Resource Control Board responded to complainant's request to evaluate McClellan AFB's water treatment and discharge facilities and process. The memo stated that the evaluation would be completed on July 1, 1984. "We (the Board) have decided to delay any decisions on reclassification of the McClellan facilities until their evaluation is completed." (ALJ #1, letter dated Feburary 2, 1984). Respondents have not taken any action against complainant regarding this most recent request.

    In a case similar to the circumstances of the present case, the Supreme Court in Mt. Healthy City School District v. Doyle, 429 U.S. 286, 97 S.Ct. 568 (1977), held that the complainant had to show that the employer's disapproval of his First Amendment protected expression played a role in the employer's decision to discriminate against him. Hence, complainant must demonstrate that he

would not have received an official letter of reprimand had the employer not considered his actions in reporting to the State Water Resource Control Board.

    The evidence demonstrates that the respondent has tried once to suspend complainant for three days based on an accusation of complainant making "false and unfounded statements" (ALJ #1, letter dated December 14, 1982). Complainant received a letter from the State Water Resources Control Board dated Feburary 2, 1984, thanking him for his letter regarding McClellan AFB's improper plant classification. The letter states the Board met with McClellan AFB mangement and that current evaluation regarding Plant reclassification would be completed by July 1, 1984.

    I find, and the evidence supports, that complainant has presented a prima facie case sufficent to support the inference that protected conduct was a "motivating factor in the employer's decision to issue an official notice of reprimand".

    Since complainant has carried his burden of proof, the burden then shifts to the employer to show, by a preponderence of the evidence, that it would have reached the same decision even if, hypothetically, it had not been motivated by a desire to punish complainant for exercising his First Amendment rights [NLRB v. Transportation Management Corp., 103 S.Ct. 2469 (June 1983)].

    The Ninth Circuit court has incorporated this two part test as an "affirmative defense", shifting the burden onto the employer to show that the decision would have been the same in the absence of the protected activity [Zurn Industries, Inc. v. NLRB, 680 F.2d 683 (9th Cir. 1982)].

    The definition of a preponderance of the evidence is: if "the choice selected is more probable than the choice rejected" [Norton v. Futrell, 149 Cal App.2d 586, 308 P.2d 887, 891 (1957)].

    Once the employer comes forward with evidence of a legitimate reason for its conduct, the burden shifts back to complainant to prove that the respondent's proffered reason was not a "true reason for the questioned action; that burden then merges with the ultimate statutory burden of pursuasion (Zurn, Id., 680 F.2d 683).

    On March 21, 1984, Mr. Ken Kegimoto, Plating Shop supervisor complained to complainant's immediate supervisor that claimant had been threatening and intimidating him concerning plating shop

operations (ALJ #1, Letter of Counseling dated 21 March 1984). Complainant was told "(t)his type of behavior on your part is inappropriate and disruptive. In the future, when you encounter work related problems in the Plating Shop you are first to discuss these problems with me (George W. Ehrman)". This letter of counseling was later amended on May 7, 1984 to permit complainant alternative persons to contact if George Ehrman was not available, specifically, George Gregory, Msgt Thompson or Ray Marshall (ALJ #1, Letter of Counseling dated 7 May 1984).

    Complainant was issued an additional Letter of Counseling on March 21, 1984, regarding a personality conflict which occurred on March 16, 1984. Complainant had called a military employee names (ALJ #1, letter of counseling dated 21 March 1984). Complainant was instructed "that this type of behavior will not be tolerated. Furthermore, you are directed to avoid personal conflict of this nature with both civilian and military employees. Any future violations will not be condoned, and may result in some form of administrative action." George Ehrman told complainant that these letters of counseling would be removed from his record after 30 days if no other incidents occurred (TR 106).

    I find these Letters of Counseling sufficent evidence to demonstrate that complainant was specifically instructed to inform his supervisor, George Ehrman, of any work related problems in the Plating Shop prior to the incident on March 30, 1984.

    Between March 3 and April 15, 1984, the plant was required to reduce the water flow by 50% due to contractors working on Tank-1 (T-1), which was leaking cyanide, and replacement of Tank-9 (T-9) and Tank-3 (T-3) (TR 14). T-3, which pumps approximately 300 gallons of water per minute (TR 75), was replaced by three portable pumps, one large and two small (TR 98). The small pumps frequently broke down (TR 144), causing the operators to co-ordinate shut downs of the main water valve with the Plating Shop mangement (TR 130).

    During this period it was not unusual for the basement floor to overflow (TR 133). The floors are envamped with concrete curbs to catch any spills on the floors (TR 94).

    In the early morning of March 30, 1984, complainant received a report of a chrome spill and flooding in the basement of the Plating Shop, which he felt required immediate action. Without notifying

his immediate supervisor, George Ehrman, nor the Plating Shop supervisor at that time, Joe Cruz, complainant shut down the chem mill operations. Complainant admits that because he was hurrying to an appoinment, he did not call his supervisor (TR 28).

    Complainant thought that the chem mill solutions were going into T-8 (holding tank), which contained concentrated chrome, leading to contamination of the tank (TR 64). George Ehrman explained in his testimony that when complainant was finally confronted concerning the shut down, complainant made reference to the log book and said "Oh, Oh, I kind of messed up. OK, I thought 113 was 133. I just made a mistake." (TR 109). George Ehrman explained that "T-113 is like a chronic acid tank and would go to T-8, that's true. But the chem mill is a sodium hydroxide caustic base tank, and it would not go to T-8. So, the fact that T-8 was full would have no bearing on dumping T-133 which is sodium hydroxide. In other words it would not direct itself to T-8" (TR 110).

    Msgt Thompson also heard complainant state he made a mistake in reading the log books (TR 137). Complainant admitted in his testimony that he was confused and had needlessly shut down the chem mill because he read the log book wrong (TR 30).

    The result of the shut down by complainant caused a two (2) day delay in production in the Plating Shop (ALJ #1, Decision to Reprimand dated 18 July 1984). Because the chem mill manufactures parts for the entire plant (TR 57), unnecessary curtailments cause a slow down of the entire operation.

    The evidence supports, and I find, that complainant ignored the March 21, 1984 counseling by failing to notify his immediate supervisor of "work related problems in the Plating Shop" that occurred on March 30, 1984 (ALJ #1, Letter of Counseling dated 21 March 1984). This failure to adhere to proper procedures resulted in a two-day loss of production. Placing an official notice of reprimand, which is to remain in complainant's file for two (2) years, appears justified. These actions are within the scope and of reasonable magnitude in light of the evidence as a whole.

    I find respondent has properly asserted his affirmative defense to the allegations made by complainant. Complainant has not presented any evidence to rebut the affirmative defense.

    The complaint of Murphy R. Conley is without merit and is dismissed.

       EDWARD C. BURCH
       Administrative Law Judge

Dated: 12 SEP 1984
San Francisco, California