Prior to the hearing and at the hearing, the parties stipulated to the following:

    1. Complainant was certified by AMSPEC as a Level Two Technician in radiography;

    2. Complainant was employed by AMSPEC as a Level Two Technician on January 28, 1991;

    3. Complainant's rate of pay was $12.00 per hour with time and a half for work over forty hours per week;

    4. Complainant worked for AMSPEC from January 28, 1991 through July 26, 1991 at the Hess Oil Refinery, St. Croix, Virgin Islands, as a Level Two Technician - Radiography;

    5. Complainant's employment with AMSPEC was terminated on July 26, 1991;

    6. The Complaint filed by Complainant with DOL was the only Complaint that Complainant filed in the matter (although AMSPEC asserts that it is not a Complaint at all);

    7. AMSPEC is an employer subject to the ERA and Complainant is a protected employee within the ERA;

    8. The letter in evidence identified as AX. number 4 is authentic;

    9. Mitchell Matrious committed three safety violations that resulted in AMSPEC terminating him.

    The unresolved issues in this case are whether or not AMSPEC terminated Complainant in violation of the anti-retaliatory provision contained in the ERA, and whether the Complaint was sufficient and timely filed.

    Complainant is married, has two children, and is currently living in Shreveport, Louisiana. Complainant stated that his work for AMSPEC as a Level Two Technician in Radiography involved working with radioactive isotopes that emit gamma radiation. (TR. P. 29). When Claimant began working for AMSPEC, he testified that he was provided with a pocket dosimeter, an instrument that maintains a daily record of the amount of radiation a person is getting, and a film badge, an item that is processed monthly to determine the radiation accumulated during that time throughout the whole body. (TR. p - 30). Claimant testified that he never received a copy of the AMSPEC Operating and Emergency Procedures Manual which contains the company's rules for conduct and operation under its radioactive material license, even though he asked Steve Oliver, operations Manager, and Craig Handcock, Complainant's nightshift supervisor, on several occasions for a copy. (TR.p. 37). Complainant stated that Mr. Handcock responded to the request by telling Complainant that he would get back to him after the Nuclear Regulatory Commission (NRC) came for their visit. (TR. p. 142).

    Claimant also testified that in March 1991 he told Craig Handcock that he objected to working with Mitchell Matrious because he thought Matrious was unqualified as a Level Two Radiographer and he posed a potential safety hazard. Specifically, Complainant testified that he observed Mr. Matrious changing film for another exposure without locking the camera. Also, Claimant alleged Mr. Matrious did not complete a proper radiation survey every time as he would leave the survey meter in front of the camera instead of keeping the survey meter in his hand. (TR. p. 47). Based on these safety procedure violations, Complainant stated that he was worried about being overexposed to radiation. Mr. Handcock assured Complainant that he would not be placed on a team with Mr. Matrious in the future. Mr. Oliver investigated these alleged safety violations and concluded Mr. Matrious was in the wrong. (TR. P. 202) Mr. Matrious was subsequently terminated for three safety violations as the parties have stipulated.

    On July 26, 1991, Complainant arrived at work at approximately 5:50 P.M. and he received his assignment for the evening from Mr. Larry Ladner, the acting supervisor for the night, which was to process x-ray film in the darkroom in the AMSPEC office at the HOVIC facility. (TR.p. 49). When Complainant initially arrived, he made sure enough film was loaded so the radiographers could begin their jobs; Complainant also began filling out the paperwork that would be used for the interpretation of the film. (TR. p. 51-2). While performing these tasks, Complainant was told that the other technicians would not be able to receive their work permit for Six Crude until 7:30 P.M. that evening. (TR.p. 52). The work permit would have been obtained from the control unit adjacent to Six Crude and the technicians can decide among themselves who will obtain the permit. (TR. p. 225-6).

    The other technicians working that evening included Mr. Terry Takahashi, Mr. Jerry Nordin, Mr. Tom Abbott, Mr. Olaf Olsen, Mr. Darryl Seal, Mr. John Day, Mr. Wesley Dick, Mr. Ed Scribner, and Mr. Chris Ladner. (TR. p. 54). After learning that they would not be needed until 7:30 P.M., Complainant along with Mr. Terry Takahashi, Mr. Jerry Nordin, Mr. Tom Abbott, Mr. Olaf Olsen, Mr. Darryl Seal, Mr. John Day and Mr. Wesley Dick decided to leave the office to make a grievance list at an outdoor lunch site. (TR. p. 58). Complainant also testified that Mr. Larry Ladner did not give any assignment or instructions to occupy this downtime, that he was present in the office when they left, and that he did not try to stop them when they left the office. (TR. p. 149). Additionally,

Complainant asserted that it was not unusual for himself and the other radiographers to leave the AMSPEC office. He mentioned that they had done it before to get coffee at the firehouse or to fill the vehicles with gas as long as it could be accomplished on the HOVIC facility. (TR. p. 149-50).

    Complainant stated that one reason they decided to leave the office was because Mr. Larry Ladner was in the next room in the office and they did not think they should speak derogatorily about him when he was that close. (TR. p. 107). At the hearing, Complainant alleged that he had a problem with Mr. Larry Ladner's work as Radiation Safety Officer. Complainant related how on one occasion he discovered that a camera would not stay in a locked position, and that Mr. Larry Ladner responded by telling Complainant not to use that camera. (TR. p.155).

    The grievance was written by Mr. Dick with input from the others. Complainant testified that he added input with respect to the items relating to maid service and radiation safety. While Claimant admitted that the maid service issue was his "pet peeve", he denied that he wished the housing grievances to be first on the list. (TR. p. 74, 76). Specifically, Complainant stated that he was concerned about radiation safety because he never received an AMSPEC operating and Emergency Procedures Manual and he never attended a radiation safety meeting, even though he regularly signed that he had attended a safety meeting that was supposedly led by Mr. Larry Ladner, the Radiation Safety Officer. (TR. p. 60, 147). However, Complainant did believe that he probably discussed safety issues for more than two hours per month with the other workers, the supervisors, Mr. Larry Ladner, and Mr. Oliver. (TR. p. 147-8). Complainant attested that the meeting to write the grievance list lasted about half an hour and at the conclusion of the meeting rain began to fall so they decided to return to the AMSPEC's office. (TR. p. 61).

    Complainant stated that they returned to the office no later than 7:10 P.M. and asked Mr. Larry Ladner to see if Mr. Oliver would look at the list. (TR. p. 62). According to Complainant, Mr. Oliver arrived at the office at approximately 7:25 P.M. and immediately asked the eight technicians what they had been doing to which they responded that they had a lot of grievances. (TR. p. 64). Complainant testified that Mr. Oliver replied that any complaints should be addressed to Ms. Lezlie McCool and told them to "hit the gate." (TR. p. 64). After realizing that they had been terminated, Complainant and the other seven technicians turned in their equipment for which they received receipts and left the facility. (TR. p. 65).

    At the hearing, Complainant testified that after he was terminated, Mr. Oliver did not ask for any progress reports for the time they had been on the job that evening. Complainant added that if he had been asked to complete a progress report, he would have stated that he had been in the darkroom. (TR. p. 144). Complainant did not think that he would have been lying had he put this on the report because no questions were ever asked about downtime, except that it needed to be listed along with the reason for the downtime. (TR. p. 144). Complainant admitted that he had not finished his work in the darkroom when he left with the other technicians, but explained that he would have had plenty of time to finish his work when the others would have gone into the six crude unit. (TR. p. 93).

    Complainant testified that when Mr. Oliver terminated their employment he had not looked at the grievance list. (TR. p. 82). Additionally, Complainant admitted that he was not sure whether the grievance list in evidence, (BX. 5), is the original that was drawn up on the night of July 26, 1992 because he thought he remembered twelve items being on the list and the list in evidence only has eleven items, but added that it closely resembled the list that was handed to Mr. Oliver. (TR. p. 82). Complainant stated that Mr. Dick copied the grievance list that night and left one copy on the board at the office. (TR. p. 92).

    At the hearing, Complainant explained that he understood that it was necessary to obtain a work permit before entering a specific area at HOVIC. (TR. p. 94). Complainant acknowledged that he received a memo before his termination informing him that AMSPEC employees were only allowed to enter or leave through certain gates and that any employee found violating this rule would be given one warning before being terminated. (TR. p. 96). Specifically, Complainant believed this meant that he could only enter and exit by the contractor gate except under extreme emergency conditions. Complainant noted also that the memo stated that he had to bring his lunch and remain at the facility during the shift. (TR. p. 96).

    Following his termination, Complainant met with the other technicians that had been terminated. Mr. Dick told them that he had spoken with Mr. Kenny Silverhorn, an inspector with HOVIC, who wanted them to prepare a document explaining why they were

terminated so they could possibly be reinstated. (TR. p. 101). On July 29, 1991, Complainant prepared a document that he gave to Mr. Dick with the understanding that it would be given to Mr. Silverhorn. (BX. 7). The document asserted that Complainant wanted HOVIC to test all personnel hired by AMSPEC to determine their qualifications because Complainant did not believe AMSPEC tested their employee's qualifications properly. (TR. p. 115).

    Claimant returned to the United States on July 30, 1991 and moved into his parent's house. (TR. p. 130). During August, Complainant contacted Mr. Oscar D. Morinda with the NRC in Atlanta because Complainant wanted the proper address to send a Complaint to the Department of Labor. On August 23, 1991, Complainant wrote a letter to the Department of Labor in Washington, D.C. that was sent by regular mail. Complainant testified that he wrote this letter because the terminated personnel did not get anywhere when they presented the information to HOVIC. (TR. p. 131). Complainant believed he needed to tell someone that AMSPEC might bring in unqualified personnel which would place others in danger and that there were actual safety problems. (TR. p. 131). Enclosed with Complainant's letter to the Department of Labor was a typewritten statement taken by the U.S. Department of Labor in St. Croix, Virgin Islands from Mr. Dick. ((TR. p. 132-3).

    At the time of the hearing Mr. Larry Ladner was no longer employed by AMSPEC and had no financial association with this company as he was fired on December 4, 1991. (TR. p, 207). On July 26, 1991, Mr. Larry Ladner was the acting supervisor for the night and the Radiation Safety Officer. (TR. p. 209). Mr. Larry Ladner stated at the beginning of his testimony that the supervisor's Incident Report he drafted was a truthful statement to the best of his knowledge of the events that occurred that evening. (TR. p.209, BX. 1). Mr. Larry Ladner remembered that Complainant was to be a dark room technician on the evening of July 26, 1991, a job that involved developing, reading and cataloging the film. (TR. p. 212).

    After the night shift started, Mr. Larry Ladner asserted that he remained in the office for approximately fifteen minutes before taking Mr. Ed Scribner to a tank farm that had a well that needed to be x-rayed that evening, a trip that lasted about fifteen minutes. (TR. p. 212-3). When Mr. Larry Ladner returned to the office he found that none of the other members of the nightshift were in the office, except his son, Chris Ladner. (TR. p.213).

    Mr. Larry Ladner drove to Six Crude at this time to see if they had gone there, but no one was there so he drove around the plant for about fifteen minutes looking for the men. (TR. p. 214). After returning to the office at approximately 7:10 P.M., Mr. Larry Ladner paged Mr. Oliver on his beeper. Mr. Oliver supposedly returned the call about fifteen minutes later at which time he learned that Complainant and the other seven technicians were missing. (TR. p. 216). Mr. Larry Ladner drove around the plant for another fifteen minutes pursuant to Mr. Oliver's instructions but did not see them until he returned to the office and was speaking to Mr. Oliver on the phone when they arrived at the office. (TR. p. 217-8). Mr. Larry Ladner did not remember at the hearing if the ground were wet when he spoke to Mr. Oliver the this second time. (TR. p. 223).

    Mr. Larry Ladner testified that when Complainant and the other seven technicians walked into the office they asked to speak with Mr. Oliver in person. After this communication with them, Mr. Larry Ladner did not know that transpired between the technicians and Mr. Oliver, except that checked in all their equipment and issued receipts after they were terminated. (TR. p. 220).

    When questioned about the laydown yard, Mr. Larry Ladner responded that he did not think it was strictly off limits to the technicians, but stated that there was no reason for the technicians to be there on the evening of July 26, 1991. Furthermore, Mr. Larry Ladner explained that HOVIC did not want employees to be in a part of the plant where no work was being performed. (TR. p. 237).

    Mr. Steven Oliver also testified at the hearing. Mr. Oliver currently lives in Puerto Rico and works for AMSPEC as an International Sales Representative. On the evening of July 26, 1991, Mr. Oliver was operations manager in St. Croix, Virgin Islands. (TR. p. 171-2).

    Mr. Oliver related that at approximately 7:25 P.M., he received a page from Mr. Larry Ladner who explained that he could not find these eight technicians. After Mr. Larry Ladner went back out into the plant to search for Complainant and the other technicians, Mr. Oliver received another call from Mr. Larry Ladner. (TR. p. 173). While still speaking to Mr. Larry Ladner on the phone, Mr. Oliver testified that the men appeared at the office and wanted to speak to him in person. (TR. p. 174).

    When Mr. Oliver arrived at the office approximately ten minutes later, Mr. Oliver testified that Mr. Dick attempted to hand him several papers, but that Mr. Oliver cut the conversation short to find out where the eight technicians had been. (TR. P. 174). Mr. Oliver stated that they replied that they had been making out a grievance list at the laydown yard near the gate. Upon hearing this, Mr. Oliver told them to "hit the gate" without reading the grievance. At this time, Mr. Oliver testified that he put the grievance on the table and later put it on the board. (TR. p. 176-7). Though Mr. oliver stated that he did not care what was listed in the grievance list, he admitted that he received a copy of the list two days later and that one item on the list related to safety. (TR. p. 196-7).

    Mr. Oliver testified that he had the power to hire and fire employees on July 26, 1991 and that the following morning Ms. Lezlie McCool, a vice-president with AMSPEC, agreed with Mr. Oliver's decision. In explaining why he decided to terminate Complainant and the other employees, Mr. Oliver stated that generally HOVIC would ask AMSPEC to terminate an employee if the employee was caught in an area in which he did not belong, a practice that had been used in the past. (TR. p. 176). Mr. Oliver documented the termination of Complainant and the other seven technicians in an Incident Report dated July 26, 1991. (BX. 2). Mr. Oliver stated that AMSPEC maintains daily progress reports at the request of HOVIC that break down what area the employee worked in and what problems were encountered. Based on past experience, Mr. Oliver believed that AMSPEC's contract with HOVIC would have been in jeopardy if these eight technicians had reported that they had been in this area making a grievance list. (TR. p. 190-1). Mr. Oliver testified that two previous employees of AMSPEC, David Gould and Richard Slyvester, were terminated because they were in an unauthorized area and because the guard thought they were sleeping. (TR. p. 191-2).

    Mr. Oliver did not recall whether Complainant had requested a copy of the AMSPEC Operating and Emergency Procedure Manual, but he knew that it was AMSPEC's policy to provide a copy of the manual to each employee. (TR. p. 197). Also, Mr. Oliver asserted that when the eight technicians stated that they met at the laydown yard to write their grievance, although they characterized it as a picnic area. (TR. p. 202).

    Several other persons testified at the hearing. Mr. Gerald Northcutt, the Shreveport Division Technical Manager for Industrial NTD Company, testified at the hearing as to the wages and benefits that Claimant receives at his current job. (TR. p. 160). Also, Ms. Lezlie McCool, a vice-president with AMSPEC, took the stand and affirmed that she had terminated Mr. Bluford Smith, a worker that had been on the day shift with Complainant, because he was found not at his designated work area. (TR. p. 241).

    The first issue to be addressed in this case is whether or not AMSPEC terminated Complainant in violation of the anti-retaliatory provision contained in the ERA. In a case such as this, the employee first bears the burden of establishing a prima facie case by showing he engaged in protected conduct, his employer was aware of that conduct, his employer took adverse action against him, and his protected activity was the likely reason for the adverse action. Garn v. Toledo Edison Co., 88-ERA-21 (December 27, 1991). once the employee establishes a prima facie case, the burden shifts to the employer to rebut the presumption because under § 5851 an employer may discharge an employee who has engaged in protected conduct as long as the employer's decision to discharge the employee is not motivated by retaliatory animus and the employer has reasonable grounds for the discharge. Lockert v. U.S. Dent of Labor, 867 F.2d 513 (9th Cir. 1989). If employer's evidence rebuts the Complainant's prima facie case, the employee has the opportunity to demonstrate that employer's proffered reason for the adverse action was mere pretext or that employer was more likely motivated by a discriminatory reason. Garn, 88-ERA-21.

    In the instant case, Complainant alleges that he made internal safety complaints which triggered the protection of 42 U.S.C. SS 5851. Complainant stated that on the evening of July 26, 1991, he and seven other technicians decided to leave the office to make a grievance list because they would not be needed until 7:30 P.M. that evening. (TR. p. 52, 58). Complainant alleges that the grievance list was prepared in a picnic area at the plant and that it was written by one of the other technicians, Mr. Wesley Dick. (TR. p. 58, 74, BX. 5). Complainant alleged that he was concerned about radiation safety because he never received a copy of the AMSPEC operating and Emergency Procedures Manual and he never attended a radiation safety meeting, although he regularly signed that he had attended such a meeting that was conducted by Mr. Larry Ladner, the Radiation Safety Officer. (TR. p. 147). After composing the list, Complainant testified that they returned to the office by 7:10 P.M. at which time they informed Mr. Larry Ladner

that they wished to speak to Mr. Oliver in person. When Mr. Oliver appeared at the office, he immediately asked the group what they had been doing to which they responded that they had a lot of grievances. (TR. p. 64). At this point, Mr. Oliver told the group to "hit the gate." (TR. p. 64).

    While the aforementioned facts constitute Complainant's version of his activities on the evening of July 26, 1991 that allegedly demonstrate that he was engaged in protected activities, I need not determine whether Complainant engaged in protected activity because I find that AMSPEC was not aware of the alleged protected activity.

    Specifically, Complainant testified that Mr. Larry Ladner did not give any assignment or instructions to occupy this downtime, that he was present in the office when they left, and that he did not try to stop them when they left the office. (TR. p. 149). Mr. Larry Ladner's testimony conflicts with Complainant's story. Mr. Larry Ladner testified that he took Mr. Ed Scribner to a tank farm at approximately 6:15 P.M., a trip that lasted about fifteen minutes, and upon his return he discovered that none of the other members of the nightshift, except his son, Chris Ladner, were in the office. (TR. p. 213). Although the testimony of Complainant and Mr. Larry Ladner differ with respect to the details of how and when the eight technicians left the office, the discrepancies are irrelevant. Neither version alleges that Mr. Larry Ladner was aware that Complainant was engaging in protected activity. Thus, I must conclude that Complainant did not establish his prima facie case and his Complaint must be dismissed.

    Even if I had concluded that Complainant had shown his prima facie case, I would also conclude that AMSPEC had rebutted the presumption because it presented evidence of a legitimate, nondiscriminatory reason for the termination.

    In Lockert, the U.S. Ninth Circuit Court of Appeals found that Complainant was not engaged in protected activity when he left his work area without permission to conduct industry code research. In reaching this decision, the Court found that Complainant's discharge was not motivated by retaliatory animus. Specifically, Lockert admitted that he left his work area without permission and two witnesses testified that there was a company rule against leaving one's work area without permission. Id. at 519.

    Similarly, according to the present facts, Complainant left the darkroom without anyone's permission and went to an area in the plant where no work was being performed. (TR. p. 237). Complainant admitted at the hearing that he had received a memo requiring that all AMSPEC personnel had to enter and leave through a specific gate, and that failure to do so one time would result in a warning; however, a second violation would result in termination. Thus, Complainant was aware of that HOVIC required AMSPEC to strictly comply with its regulations.

    Moreover, Mr. Oliver testified that HOVIC would ask AMSPEC to terminate an employee if the employee was caught in an area in which he did not belong. (TR. p. 176). Mr. Oliver also believed that AMSPEC's contract with HOVIC would have been in jeopardy if AMSPEC had allowed Complainant and the other seven employees to report that they had been in the laydown yard making a grievance list. (TR. p. 190-1). Mr. Oliver testified that several previous employees had been terminated because they were in an unauthorized area and because they were caught sleeping. (TR. p. 191-2).

    Based on the aforementioned facts, I find that AMSPEC met its burden of establishing a legitimate, non-discriminatory reason for terminating Complainant. Therefore, because I have found that AMSPEC's evidence rebuts the Complainant's prima facie case, the Complainant now has the opportunity to demonstrate that employer's proffered reason for the adverse action was mere pretext or that employer was more likely motivated by a discriminatory reason. Garn, 88-ERA-21.

    I do not find that Complainant has shown that AMSPEC's termination of Complainant was mere pretext or was motivated by a discriminatory reason. AMSPEC argues and I agree that it had no interest in the grievance it self when it terminated all eight technicians. AMSPEC asserts that Complainant and the others were terminated because they were not working or even available to work and because they were in an area of the plant where no work was being performed so they did not have a reason to be there. Because AMSPEC fired all eight technicians, I do not find that AMSPEC's proffered reason for the termination was mere pretext or was motivated by a discriminatory reason. Accordingly, the Complaint must be dismissed.

    Because I have already found that the Complaint should be dismissed, the other issue regarding the sufficiency and timeliness of the Complaint is moot.

    For the reasons set forth above, recommend the Complaint of Michael D. Morris be dismissed.

       RICHARD D. MILLS
       Administrative Law Judge

Dated:
Metairie, Louisiana

RDM:smm