DATE:  March 3, 1996
CASE NO. 93-WPC-007
         93-WPC-008 


IN THE MATTER OF

ALFRED E. JACKSON,

     and

AL ROSKAM,

          COMPLAINANTS,

     v.

KETCHIKAN PULP COMPANY,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     These consolidated cases arise under the employee protection
provision of the Water Pollution Control Act (WPCA), 33 U.S.C. 
§ 1367(1988).  Complainants Alfred E. Jackson and Al Roskam
alleged that Respondent Ketchikan Pulp Co. (KPC) fired them for
complaining about violations of the environmental protection
requirements of the WPCA.  KPC claimed both Jackson and Roskam
were fired for infractions of KPC's work rules.  The
Administrative Law Judge (ALJ) submitted a Recommended Decision
and Order (R. D. & O.) that both complaints be dismissed.  For
the reasons discussed below, I adopt the ALJ's recommendation and
dismiss these complaints.  
                             Background
     The facts are described in considerable detail in the R. D.
& O. at p. 2-30.  KPC is engaged in logging and pulp 
[PAGE 2]
manufacturing in southeast Alaska.  Jackson and Roskam worked for
KPC at its pulp mill outside Ketchikan.  Id. at 2.  At the
time of their dismissal in December 1992, Jackson had worked for
KPC since 1959 and Roskam since 1983.  Id. at 2-3.  Both
Jackson and Roskam complained about actions or failures to act by
KPC which could constitute violations of the environmental laws,
including the WPCA, and some managers of KPC were aware of some
of these activities before KPC fired the Complainants. 
Id. at 10-11; 17-18.  The ALJ also found that, as a result of tension 
between KPC and the unions representing some of its employees, "in the
fall of 1992, some union members, . . . decided that as an
alternative to engaging in a strike they would engage in a
program of internal sabotage. . . ."  Id. at 4.  The ALJ
found "[a]n abundance" of evidence that KPC was very concerned
about and believed that some employees had engaged in sabotage. 
Id. at 35.  From August to December 1992 there were
numerous incidents of suspicious equipment breakdowns or damage
to equipment, including slashed air lines, electrical cords and
pump diaphragms, and foreign objects placed in machinery. 
Id. at 5.  An emergency oil pump for the mill's largest
turbine failed to operate causing $3 million in damage and an
internal report concluded the pump had been intentionally turned
off.  Id.
     Jackson had been disciplined by KPC several times since 1985
for refusing work assignments, for loud, abusive behavior and for
assaulting a supervisor.  Id. at 18.  The lead man of the
crew on which Jackson worked, who has known Jackson for 30 years,
described him as insubordinate, argumentative, abusive to
subordinates and more difficult to supervise than the rest of the
crew "put together."  Id. at 19.  KPC suspended Jackson
for ten days in October 1992 with a warning that further
infractions could lead to discharge.  Id. at 23.  KPC
fired Jackson on December 8, 1992 for improperly disposing of
wire cable by feeding it down a drain hole into the water under a
dock.  Id. at 23-24.  KPC managers responsible for firing
Jackson told him the reason for his termination was attempted
sabotage by exposing the company to possible penalties for
environmental violations.  Id. at 24-25.
     Roskam had been suspended by KPC for seven days in November
1992 for twice being absent from his work station and KPC warned
him that another infraction could lead to discharge.  Id.
at 12.  KPC fired Roskam on December 18, 1992 for being out of
his work area three times on December 1.  Id. at 14.  A
significant factor in KPC's decision was that Roskam had been seen in areas of the
mill where suspected sabotage had occurred.  Id.
     The ALJ held that both Jackson and Roskam engaged in
protected activities when they complained about possible KPC 
[PAGE 3]
violations of the WPCA.  R. D. & O. at 9.  However, the ALJ
concluded that Roskam's protected activity "played no part in his
termination, and that even if [Roskam's protected activity] were
considered at the time he was terminated," KPC would have taken
the same action for legitimate reasons even if he had not engaged
in that activity.  Id. at 35-37.  The ALJ found that, in
one respect, Jackson's discharge was motivated in part by his
environmental complaints.  Id. at 47.  But, the ALJ held
that "the termination would have occurred even if Jackson had
never engaged in protected activity."  Id.
                             Discussion
     I do not agree with Complainants that once they established
a prima facie case the burden of proof shifted to KPC to
prove it would have taken the same action in the absence of
protected activity.  Complainants' Brief at 5-6.  The ALJ
properly stated the law on shifting burdens of production and
burdens of proof in whistleblower cases.  R. D. & O. at 30-31.[1] 
 Establishing a prima facie case only places a burden of
production on KPC.  The burden of proof switches to Respondent
only if Complainants prove by a preponderance of the evidence
that Respondent intentionally discriminated against them because
of their protected activity.[2]   Lockert v. United States
Dep't of Labor, 867 F.2d 513, 519 n.2 (9th Cir. 1989).
     The ALJ thoroughly examined and carefully weighed the
evidence of the record in this case.  R. D. & O. at 31-48.[3]   I
find particularly significant the ALJ's evaluation of and
conclusions on the credibility of the witnesses, and I give those
findings substantial weight.  See, e.g., id. at 35
(KPC's evidence on the threat of sabotage was "highly credible,"
but Roskam provided no explanation for being out of his work area
on two of the three alleged occasions on December 1, 1992 and
"only a belated and highly questionable explanation for the
third."); at 36 (KPC's "reasons [for the length of time taken to
investigate Roskam's absence from his work area] are fully
credible."); at 40 (Jackson's denial of knowledge of the KPC
policy against discarding cables in the water "is not believable
because it is inconsistent with the testimony of other, more
credible witnesses and with his own pre-trial deposition 
. . . ."); at 41 n.28 ("Jackson's assertion . . . that he did not
tell [a co-worker] to put the . . . cable down the drain pipe is
completely unbelievable.  That assertion directly conflicts with
the testimony of [the co-worker] which was fully credible, as
well as with Jackson's own prior admissions that he had in fact
given such an order to [the co-worker].") Pogue v. United
States Dep't of Labor, 940 F.2d 1287, 1289 (9th Cir.
1991)(agency should accord substantial deference to credibility
findings of ALJ); Lockert v. U.S. Dep't of Labor, 867 F.2d
at 519 (reviewing court 
[PAGE 4]
will uphold "ALJ's credibility findings unless they are
'inherently incredible or patently unreasonable.")
     The belief that both Jackson and Roskam engaged in sabotage
played a major role in KPC's decision to fire them.  The ALJ
held, and I agree, that KPC needed only to prove that the
managers who made the discharge decision "had a reasonable and
good faith belief" that Complainants committed sabotage.  R. D. &
O. at 41.  In Lockert, a case arising under the employee
protection provision of the Energy Reorganization Act of 1974, 42
U.S.C. § 5851 (1988), the Ninth Circuit held that an
employer may discharge an employee who has engaged in protected
conduct if the employer has reasonable grounds to believe the
employee is guilty of misconduct and the decision was not
motivated by the protected conduct.  867 F.2d at 519, and cases
discussed therein.[4] 
     Jackson challenges the ALJ's conclusion that firing him for
dumping a 120-foot length of cable in the water was not a
pretext.  Jackson concedes he had an extensive disciplinary
record, but argues that KPC regularly dumped large quantities of
"regulated material," including cable, in the water, so that
firing him for such a minor infraction must constitute pretext. 
Complainants' Brief at 6.  The ALJ carefully reviewed the
evidence on this incident, on KPC's policy on disposing of cable
in the water, and on Jackson's knowledge of that policy. 
Id. at 23-28.  After weighing the evidence and evaluating
the credibility of the witnesses as described above, the ALJ
concluded that KPC's high level of concern about the sabotage
campaign and "the evidence that KPC believed that Jackson was
involved in that campaign is very strong."  Id. at 40, as
explained at 40-41.  The ALJ also concluded that the evidence
that KPC retaliated against Jackson for his environmental
complaints, with one exception discussed below, "is not
convincing."  Id. at 41, as explained at 42-45.  I find
that the record fully supports these conclusions and I adopt
them.  
     There was direct evidence that KPC suspended Jackson in
October in part because of his environmental complaints.  The
suspension letter criticized some of his environmental complaints
as "grossly exaggerated" and "a misrepresentation," R
(Respondent's) Exhibit 27, and the suspension and its attendant
warning was a significant factor in the decision to fire Jackson.
R-20 (denial of union's appeal of Jackson's termination.)  I
agree with the ALJ that the discharge of Jackson presents a dual
motive case based on this evidence as found by the ALJ.  For the
reasons discussed below (p. 10-11), however, I find that KPC has
carried its burden of proving that it would have fired Jackson
even if he had not engaged in any protected activity.  
     Roskam takes exception to the ALJ's conclusion that KPC
fired him for being out of his assigned work area three times on 
[PAGE 5]
December 1, 1992, and not for his environmental complaints. 
Roskam argues that the temporal proximity between his contacts
with the Environmental Protection Agency and the FBI and KPC's
initiation of an investigation into the infractions of December 1
"screams out that there was a causal connection."  Complainants'
Brief at 10.  
     Temporal proximity between protected activity and adverse
action may be sufficient to establish a prima facie case,
Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989), but it
is just one piece of evidence for the trier of fact to weigh in
deciding the ultimate question whether a complainant has proved
by a preponderance of the evidence that retaliation was a
motivating factor in the adverse action.  See Bassett v.
Niagara Mohawk Power Corp., Case No. 85-ERA-34, Sec. Dec.
Sep. 9, 1993, slip op. at 6-7, and note 1 above.  Here as well,
the ALJ carefully reviewed the evidence on the December 1
incident, on the length of time it took for KPC to investigate
it, on the timing and significance of Roskam's contacts with the
Environmental Protection Agency and the FBI, and on KPC's
treatment of another employee who engaged in protected activity. 
Id. at 10-11; 13-16.  The ALJ weighed the evidence, giving
appropriate weight to the testimony of the witnesses according to
the assessment of their credibility.  He concluded that "Roskam's
protected activities played no part in his termination . . ." 
and that "even if [Roskam's protected activities] were considered
[by KPC] at the time he was terminated, he would still have been
terminated even if he had not engaged in protected activities." 
Id. at 35, as explained at 35-37.
     Some circumstantial evidence suggests that retaliation may
have in part motivated KPC's decision to fire Roskam.  The timing
of an FBI/EPA interview with Roskam on December 9, 1992, nine
days before his termination on December 18, R. D. & O. at 10, and
a "confrontation" between Roskam and a supervisor earlier in 1992
over leaks of machinery hydraulic fluid into the water,
id. at 11, support an inference of discrimination.  I will
assume, as the ALJ did in his alternative conclusion, that
retaliation was a motivating factor in Roskam's discharge.  R. D.
& O. at 35-36.
     Ultimately, I agree with the ALJ that in the atmosphere of
heightened labor-management tension and numerous recent incidents
of suspected intentional damage to equipment, see discussion
above, KPC reasonably believed that both Jackson and Roskam were
engaged in sabotage, Lockert v. U.S. Dep't of Labor, 867
F.2d at 519, and would have fired them both under those
circumstances and in light of their other unprotected conduct
even if they had not engaged in any protected activity.  R. D. &
O. at 36-37; 48.  The record in this case has been thoroughly
reviewed and I find it fully supports the ALJ's findings,
conclusions and 
[PAGE 6]
recommendation.  Accordingly, the complaints in these cases are
DISMISSED.  
     SO ORDERED.


                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.







[ENDNOTES]
           
[1] 
 However, it was not necessary to engage in a detailed analysis
of whether each Complainant established a prima facie case
or whether KPC produced evidence sufficient to rebut the prima
facie case.  After a case has been fully tried on the merits,
the ALJ's job is to weigh all the evidence and decide whether the
Complainants have proven by a preponderance of the evidence that
Respondent intentionally discriminated against them because of
protected activities.  As the Secretary explained in Carroll
v. Bechtel Power Corp., Case No. 91-ERA-46, Feb. 15, 1995,
slip op. at 11, "[o]nce the respondent has presented his rebuttal
evidence, the answer to the question whether the plaintiff
presented a prima facie case is no longer particularly
useful.  'The [trier of fact]' has before it all the evidence it
needs to determine whether 'the defendant intentionally
discriminated against the plaintiff.'  United States Postal
Service Bd. of Governors v. Aikens, 460 U.S. 711, 714
(1983)."

[2] 
 The burden of proof or persuasion on an element of a party's
case never shifts; each party simply bears different burdens at
different stages of the hearing.  The burden of production or
going forward with the evidence can shift from one party to
another.  See discussion and clarification of NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983) in
Director, OWCP v. Greenwich Collieries, 114 S. Ct. 2252,
2257-58(1994); 9 John H. Wigmore, Wigmore on Evidence § 2489
(James H. Chadbourne rev. 1981).  

[3] 
 The ALJ found that Jackson timely filed his complaint with the
Wage and Hour Division of the Department of Labor and I adopt
that finding.  R. D. & O. at 48-49.  For purposes of my review of
the ALJ's decision on the merits, I have assumed, without
deciding, that Jackson's attempt to dispose of a cable into the
water did not exclude him from protection under the WPCA.  
33 U.S.C. § 1367(d).  

[4] 
 Somewhat different rules apply to this question under
whistleblower laws and Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. § 2000e- 2000e-17 (1988) on one hand,
and the National Labor Relations Act (NLRA), 29 U.S.C. §
141-187 (1988) on the other.  Under Title VII, for example, the
courts have held that a reasonable, good faith belief by the
employer that the employee engaged in misconduct constitutes
legitimate grounds for discipline even though that belief is
factually erroneous.  See Lenoir v. Roler Coater, Inc. 13
F.3d 1130, 1133 (7th Cir. 1994); Jones v. Flagship
Intern., 793 F.2d 714, 729 (5th Cir. 1986), and cases
discussed therein.  In contrast, employers bear the risk under
the NLRA that the NLRB may make an independent finding that the
employee did not in fact commit a disciplinable offense.  "If it
is found that the employee did not engage in the [mis]conduct, he
cannot be discharged regardless of the employer's good faith
belief.  NLRB v. Burnup and Sims, Inc., 379 U.S. 21, 23 .
. . (1964)."  NLRB v. Champ Corp., 933 F.2d 688, 700 (9th
Cir. 1990).  See also Waters v. Churchill, 114 S. Ct.
1878, 1889 (1994) (O'Connor, J., plurality opinion)(finding no
violation of First Amendment where public employer discharges
employee based on reasonable belief, following reasonable
investigation, employee made disruptive statements not protected
under Pickering v. Board of Ed. of Township High School
Dist., 391 U.S. 563 (1968)).