DATE:     MAY 7, 1993
CASE No.  92-ERA-43

IN THE MATTER OF

WILLIAM A. BOYD
          Complainant

          v.

ITI MOVATS
          Respondent

Appearances:

On behalf of Complainant1/

William E. Boyd, pro se
P.O. Box I
Iredell, Texas 76649
     Complainant

On behalf of Respondent

James A. Buddie, Esq.
Westinghouse Electric Corporation
11 Stanwix Street, Room 1706
Pittsburgh, Pennsylvania 15222

Before:  JAMES W. KERR, JR.
        Administrative Law Judge

RECOMMENDED DECISION AND ORDER
                                    
                        Procedural History


This case arises under the employee protection provision of the
Energy Reorganization Act of 1974 (ERA) as amended, 42 U.S.C.
§ 5851 (1982), and the regulations promulgated thereunder at
20 C.F.R. Part 24.   These provisions protect employees against
discrimination for attempting to carry out the purposes of the
ERA or of the Atomic Energy Act of 1954, as amended, 42 U.S.C.
§ 2011 et seq.  The Secretary of Labor is empowered to
investigate 
[PAGE 2]
and decide "whistleblower" complaints filed by employees at
facilities licensed by the Nuclear Regulatory commission (NRC)
who are discharged or otherwise discriminated against with regard
to their terms and conditions or employment for taking any action
relating to the fulfillment of safety or other requirements
established by the NRC.

     Complainant filed a complaint  with  the  U.S. Department of
Labor on May 5, 1992.  He alleges, in essence, that ITI Movats
discharged him because it feared he was about to commence a
proceeding under the provisions of the Energy Reorganization
Act." (Brief for Complainant at p. 1).

     A formal hearing was held in Fort Worth, Texas, on October
14, 1992, at which time all parties were afforded full
opportunity to present evidence and argument.  Both parties
submitted post-hearing briefs, admitted hereby as part of the
administrative record in this case.  This recommended decision is
based upon the entire record.

                       STATEMENT OF THE CASE

     Complainant William E. Boyd was employed by Respondent ITI
Movats, as a casual employee on March 11, 1992.  ITI Movats
contracts with utility companies to perform services and provide
workers for various tasks at large commercial nuclear power
plants. (Tr, p. 160).  One of ITI Movats' customers is TU
Electric ("TU's) at its Commanche Peak Steam Electric Station
("Commanche Peak").  At Commanche Peak, ITI Movats employees
primarily perform repair and refurbishment of motor operated
valves, air operated valves ("AOVs") and manual valves. (Tr. p.
160).  In February, 1992, TU informed ITI Movats that it was
expanding the scope of work under the parties' contract,
including performing electrical work on the electrical limit
switches associated with the AOVs. (Tr. p. 163).

     Jeffrey Kelly was ITI Movats' Project Manager at Commanche
Peak from December 1990 through June 1992.  At trial, Mr. Kelly
testified that his duties as Project Manager included hiring
employees. (Tr. p. 159).  He was also charged with identifying
ITI Movats employees for layoff as contracts concluded or the
scope of work declined.  He was assisted in this hiring and
layoff function by Charles ("Jack") Higginbotham, Project Manager
and Project coordinator for ITI Movats at Commanche Peak, who
also testified at trial. (Tr. pp. 219-220).

     According to Mr. Kelly, to accomplish the additional AOV
work, on approximately March 11, 1992, he hired William Boyd, 
[PAGE 3]
Larry Nichols, and Roy Rickabaugh, because of their experience
with electrical work.  At the same time, he also hired AOV
technicians with mechanical experience to perform the mechanical
aspects of the AOV refurbishment. (Tr. pp. 163-164).

     Mr. Kelly testified that, consistent with industry 
practice, the employees were to be laid off when the specific
work for which they were hired was completed.  He believed that
the electrical work would be completed in two to six months. (Tr.
pp. 165-167).  As Complainant himself testified, he and Messrs.
Nichols and Rickabaugh all began work for ITI Movats on March 11,
1992. (Tr. p. 89).  The three electricians were then placed in a
two-week training program, which is mandatory prior to beginning
work for ITI Movats. (Tr.  P. 291).  Complainant's training ended
March 25, 1992.

     On March 27, 1992, ITI Movats was informed by TU that the
AOV electric work on the limits switches, which Messrs. Boyd,
Nichols, and Rickabaugh were hired specifically to perform, would
not be assigned to ITI Movats. (Tr. pp. 166, 221-222).  Rather
than immediately lay off the three electricians, Messrs. Kelly
and Higginbotham testified that they sought to utilize them in
another capacity.  However, it was concluded that these three men
were generally lacking in skills outside the electrical field,
but sufficient helper-type work existed assisting other AOV
technicians that could keep Messrs. Boyd and Nichols employed for
a short time, but not beyond the end of April 1992. (Tr. pp.
166-169, 223-224).

     Mr. Kelly testified that he made the decision to lay off
Messrs.  Boyd and Nichols on April 1, 1992.  At the end of April,
Mr. Kelly was to notify Complainant of his layoff. (Tr. pp. 17-
172).  One factor in this decision was the need for actual AOV
technicians with mechanical experience, not helpers or
electricians such as Messrs. Boyd and Nichols. (Tr. pp. 167-168,
226).  Complainant never performed any electrical work for ITI
Movats. (Tr. pp. 165-166, 291-292).  Of the three employees hired
to do electrical work, only Mr. Rickabaugh was to be retained,
due to his significant electrical and mechanical background and
training. (RX 1-3; Tr. pp. 169-170, 175-176, 222-227), 127-129,
268-269).

     Since beginning his work career in 1969, Complainant has
worked for a variety of employers almost exclusively as an
electrician, and by trade he is an electrician.  Prior to working
for ITI Movats, he had no experience in any type of valve work.
(Tr. pp. 69-71, 92-95, 127-129).  Claimant has experienced 
[PAGE 4]
reductions in force in the past.  He was laid off several time by
Brown & Root and Fluor Daniels.  According to ITI Movats
representatives, and as conceded by Complainant, layoffs are
common in the nuclear construction industry. (Tr. pp. 89-90, 165,
254255, 200-202).

     Both Messrs. Kelly and Higginbotham testified that on April
1, when the decision was made to lay off Complainant, they had no
knowledge that Complainant had made any complaint to any party
regarding safety or procedure violations by ITI Movats.  They
stated that the decision to lay off Complainant was based solely
on ability of the individuals involved and needs of the company.
(Tr. pp. 167-168, 177, 226).  Complainant testified that he never
at any time informed either Mr. Kelly or Mr. Higginbotham of any
problems he was experiencing. (Tr. pp. 98-100).  Neither received
any input, suggestion, or recommendation in this regard from any
one else. (Tr. pp. 172, 229, 181, 200).

     Complainant began work as a helper with ITI Movats at
Commanche Peak on April 6, 1992. (Tr. pp. 291-292, 72-73, 165-
166).  He testified that prior to that time, he had no complaints
against ITI Movats. (Tr. p. 99).

     During his first shift on April 6, 1992, and again on April
8, Complainant claims he was exposed to paint fumes, and that he
expressed his concerns to his immediate supervisor, Ben Martin. 
He was provided with a particle mask. (Tr. p. 107).  By
Complainant's own admission, he was never involved in paint
cleanup, nor was he in any room while painting was taking place.
(Tr. pp. 105-106, 185, 211, 214-214, 271, 187-188, 264-266, 191). 
At no time while employed by ITI Movats did Complainant refuse to
work in any room due to possible paint fume exposure, nor was he
forced to stay in any room while painting or preparation was
ongoing. (Tr. pp. 108, 188-190, 192).  He never requested a
respirator.  Mr. Nichols, Complainant's coworker, who was also
laid off, testified that he never experienced symptoms from paint
fume exposure while employed by ITI Movats.  None of
Complainant's coworkers or supervisors complained of symptoms.
(Tr. pp. 104, 109-111, 183-184, 188-192, 263, 267-268).

     Complainant also complained to his supervisor about carrying
an actuator up steps (he believed it to be too heavy to be
carried).  Complainant did not carry the actuators, and he was in
no way injured.  The actuators were carried by supervisor Martin
and by Mr. Nichols. (Tr. pp. 123, 256, 259-260, 195).

     On April 7, Complainant raised a procedural concern about he

[PAGE 5]
signing of clearance verifications to his immediate supervisor,
Mr. Martin.  According to Messrs. Nichols and Martin, and
Complainant himself, he was permitted to check the clearances
himself, which satisfied him, and he did not raise the issue
again.  Mr. Martin did not express anger when Complainant raised
the issue, and he testified that he did not hold this against
Complainant in any way.  By instructing Complainant to check the
clearances himself, Mr. Martin followed proper company procedure.
(Tr. pp. 117-118, 197198, 273-274, 174, 216).

     Additionally, Complainant objected to signing off on
"rollover" work packages, that is, sign off on a work checklist
for work performed by another employee.  He could not specify
dates. (Tr. p. 84).  Although this is a common practice, and it
is not incorrect to do so, Complainant was not required to sign
off, and seemed satisfied with the outcome. (Tr. pp. 118-120,
174-175, 200, 251).

     Complainant also alleges that supervisor Martin improperly
removed a strut on April 6, 1992. (Tr. pp. 131-134).  Although
Complainant alleged that he refused to assist with the removal of
the strut, and he believed it to be a safety violation, he did
not inform the NRC about the infraction until after his layoff,
and never informed TU security or ITI management about it. (Tr.
p. 134).  Mr. Martin denies removing any strut improperly. (Tr.
pp. 203-204).

     Complainant was laid off on April 28, 1992.  On April 29,
1992, he contacted and filed complaints with the Sommerville
County Sheriff and TU Electric's corporate security.  TU security
conducted an independent investigation into Boyd's charges
against ITI Movats.  The investigation was conducted by Walt
Smith of TU security, who has 29 years' police department
experience prior to working for TU. (Tr. pp. 153-154).  Mr. Smith
testified that TU security concluded there were no procedural
violations by ITI Movats, and that Complainant's layoff was not
due to a retaliatory motive. (Tr. p. 146).

     The TU investigation revealed that another ITI Movats
supervisor, Jimmy Rodgers, did engage in inappropriate conduct
after claimant was notified of his layoff on April 28.  It
is not clear from the record exactly what this "inappropriate
conduct" entailed.  Based on this finding, however, Mr. Rodgers
was terminated. (Tr. pp. 155-156).

     It is undisputed that on May 5, 1992, one week after his
layoff, Complainant contacted the NRC to register a complaint 
[PAGE 6]
against ITI Movats for an alleged violation of Section 210 of the
ERA.  The U.S. Department of Labor, Wage and Hour Division,
conducted an investigation, concluding that there was no evidence
that Complainant's termination was in any way related to safety
concerns or discrimination under the Act.  Complainant filed a
timely appeal of this decision.

     Respondent argues that Complainant has not made out a
prima facie case of retaliation or, alternatively,
that it has proven a legitimate motive for its actions regarding
Complainant.

           FINDINGS OF FACT AND CONCLUSIONS OF LAW

     In order to establish a prima facie case of
retaliation, Complainant must prove each of the following four
elements: 1) the employee's engagement in a protected activity;
2) the employer's awareness of the employees' engagement in a
protected activity; 3) the employer's subsequent employment
action adversely affecting the employee; and 4) that the adverse
action followed the protected activity so closely in time as to
justify an inference of retaliatory motive.  See Couty
v. Dole, 886 F.2d 147 (8th Cir. 1989).  Under the ERA, the
Complainant always bears the burden of proof or persuasion that
intentional discrimination has occurred.  Darty v. Zack
Co., 82-ERA-2 (April 25, 1983), applying Texas Department
of Community Affairs v. Burdine, 450 U.S. 248 (1981).

     Protected Activity

     This cases arises within the jurisdiction of the Fifth
Circuit U.S. Court of Appeals.  In Brown & Root Inc. v.
Donovan, 747 F.2d 1029 (5th Cir. 1984), the Court held that
"employee conduct which does not involve the employee's contact
or involvement with a competent organ of government is not
protected under Section 5851," and does not apply to protect
employees from repercussion from the filing of purely internal
quality control reports or complaints.

    This Court is well aware, however, that in other
jurisdictions, the filing of purely internal quality control
reports is considered a covered activity under Section 5851 of
the ERA. [See e.g. Mackowiak v. University Nuclear
Systems, Inc., 735 F.2d 1159 (9th Cir. 1984].

     It is undisputed that Complainant made only oral complaints
to his immediate supervisor prior to his layoff on April 28,
1992.  His complaints to the sheriff and TU security did not 
[PAGE 7]
occur until one day after the adverse employment action,
that is, the layoff. Complainant did not contact the NRC until
one week after the adverse employment action.  Thus, under the
Fifth Circuit standard enumerated in Brown & Root,
supra, Complainant has not engaged in a protected
activity, and cannot prove the first element of his prima
facie case.

     Even under the Mackowiak standard controlling in the
Ninth Circuit, Complainant's condition reports would not likely
constitute "protected activity," in light of the fact that the
conditions complained of orally to his immediate
supervisor were believed to have been rectified, were not
reported as violations until after the adverse employment
action, and in any event do not in this case amount to "internal
quality control reports."

     Knowledge of Protected Activity

     There is no evidence of record that anyone with decision-
making authority at ITI Movats had any knowledge of Complainant's
reporting of safety or quality control concerns to the NRC prior
to the alleged "retaliatory act;" i.e. the layoff decision.  Mr.
Kelly and Mr. Higginbotham were consistent in their testimony
that their decision to lay off Complainant was made on April 1,
1992, five days before Complainant lodged his first "complaint"
with Mr. Martin.  Complainant produced no evidence to the
contrary.  Under the standards of either Brown & Root or
Mackowiak, the case would be dismissed and is hereby
recommended for dismissal for failure to meet the second prong of
the prima facie case.

     Action Adversely Affecting Complainant

     Assuming, arguendo, that Complainant had proved the first
two elements of his prima facie case, it is indisputable
that Complainant was laid off by Employer.  The overwhelming
weight of the evidence shows, however, that this is a common
industry practice.  It is clear from Mr. Kelly's testimony that
after the expense of training Complainant and his coworkers
Nichols and Rickabaugh, ITI Movats attempted to utilize these
employees in some capacity and did so, with the knowledge that
with the loss of the contract for electrical work, their tenure
would be short-lived.  This is the only element of his prima
facie case which Complainant can be said to have proved.

     Temporal Proximity

     Complainant admitted he had no contact with the NRC, or the 
[PAGE 8]
sheriff, or TU security prior to his layoff.  The decision to lay
off Complainant was made prior to Complainant's
vocalization of any complaint; in fact, Complainant had not
worked one shift when that decision was made.  The testimony of
the TU managers is highly credible and uncontradicted at this
point.  This employment decision was made well before the fact of
any complaint, and thus no inference can be drawn from any
temporal relation.

     Complainant has therefore not proved the fourth element of
his prima facie case.

                             Conclusion

     Complainant has not succeeded in proving that he was in any
way retaliated against or treated any differently than any other
ITI Movats employee.  Another employee, Mr. Nichols, testified
that they were not retaliated against nor did he believe he was
retaliated against under conditions similar to those of
Complainant.

     The Court also finds that ITI Movats would have had an
independent basis for laying off Complainant, even assuming,
arguendo, that he had engaged in protected activity.
See Price Waterhouse v. Hopkins, 490 U.S. 228, 258
(1988) (plurality opinion); Mt. Healthy City School District
Board of Education v. Doyle, 429 U.S. 274 (1977). 
Dunham v. Brock, 794 F.2d 1037 (5th Cir. 1986);
Mackowiak, supra.  There is ample evidence that the
contract for which Complainant was hired did not materialize, and
that ITI Movats did not at that time have sufficient work which
would have utilized Complainant's skills as an electrician or
provided ITI Movats with the type of skilled worker that was
required under their present contracts.

     In  sum,  Complainant  has  not  met  his  burden  of  proof
or persuasion in proving a retaliatory employment action.

                               ORDER

     As Complainant has failed to prove a retaliatory employment
action, it is hereby recommended that the complaint of William E.
Boyd against ITI Movats be DISMISSED with each party to pay its own
costs, expenses, and attorney's fee.



     Entered this 11th day of May 1993, at Metairie, Louisiana.

                                                      JAMES W. KERR, JR.
                                                     Administrative Law Judge

JWK/tb

ENDNOTES:

1/ Carvan E. Adkins, Esq., Fielding, Barrett & Taylor,
Atrium Centre, 8851 Highway 80 W, Suite 300, Ft. Worth, Texas
76116-6041, appeared on behalf of Claimant by was of post-hearing
Proposed Findings of Fact and Conclusions, filed December 28,
1992.