DATE:  April 15, 1996
CASE NO. 94-ERA-37


IN THE MATTER OF

JOSEPH ROY B. STRAUB,

          COMPLAINANT,

       v.

ARIZONA PUBLIC SERVICE COMPANY/
ARIZONA NUCLEAR POWER PROJECT,

          RESPONDENTS,


BEFORE:   THE SECRETARY OF LABOR

                  
                     FINAL DECISION AND ORDER 

     This case arises under Section 211, the employee protection
provision, of the Energy Reorganization Act of 1974 (ERA), as
amended, 42 U.S.C.  5851 (1988 & Supp. V 1993).[1]   Before me
for review is the Recommended Decision and Order (R. D. and O.)
issued on October 6, 1995, by the Administrative Law Judge (ALJ).
The ALJ concluded that Complainant, Joseph Roy B. Straub (Straub)
had failed to establish that Respondents, Arizona Public Service
Company and Arizona Nuclear Power Project (APS), had violated the
ERA by taking adverse action against Straub in retaliation for
engaging in activity protected under the ERA.  The ALJ therefore
recommended that the complaint be dismissed. 
     Based on review of the record and the arguments of the
parties, I agree with the findings of fact and the recommendation
of the ALJ that the complaint be dismissed.  I provide the
following analysis to clarify and supplement that of the ALJ. 
                          DISCUSSION
I.   The ALJ's Findings of Fact

[PAGE 2]
     Without exception, the findings of fact rendered by the ALJ
reflect a thorough review of the record and a careful evaluation
of the evidence.  R. D. and O. at 2-30; see N.L.R.B. v.
Cutting, Inc., 701 F.2d 659, 667 (7th Cir. 1983); Cotter
v. Harris, 642 F.2d 700, 706-07 (3d Cir. 1981);
Dobrowlosky v. Califano, 606 F.2d 403, 409-10 (3d Cir.
1979).  Contrary to Straub's argument, Complainant's Brief at 8-
9, the ALJ did not commit reversible error in failing to address
the credibility of all the witnesses that testified in the
twenty-three days of testimony before the ALJ.              
     Although Straub called several witnesses in the course of
presenting his case-in-chief during the first twenty-one days of
the hearing before the ALJ, his case nonetheless rested heavily
upon his own, uncorroborated testimony.  See T. 3877-3904,
3934-4182, 4261-4399, 4536-4671, 4765-4931;[2]  R. D. and O. at
3, 11-14.  The ALJ properly discredited Straub's testimony
pertinent to several dispositive issues based on internal
inconsistencies, as well as conflicts with testimony given by
other witnesses and with documentary evidence of record.  R. D.
and O. at 4-5, 6-7, 8, 11-14; see Lockert v. United States
Dept. of Labor, 867 F.2d 513, 519 (9th Cir. 1989).  The
testimony of the remaining witnesses of record provides, at best,
extremely vague support for Straub's testimony that APS was
hostile to those who raised safety concerns.  See, e.g.,
T. 2396-99 (W. Dixon).  The vast majority of the witnesses
and testimony supports the ALJ's conclusion that this complaint
lacks merit.  See, e.g., T. 373 (M. Wagner), 1441 (M.
Robertson), 1609 (J. Ong), 6150-51 (D. Wanslee)(all providing
support for ALJ's discrediting of Straub's testimony that he had
raised a safety concern in 8/92 about procedures for work on a
High Intensity Container, R. D. and O. at 21-22, ¶¶
70-80).  In discrediting Straub's testimony, the ALJ discredited
the only testimony that was arguably adequate, if fully credited,
to establish the elements necessary to prevail on a complaint
under Section 211; thus, any error in the ALJ's failure to
expressly evaluate the credibility of all the remaining witnesses
is harmless.  
     Straub's argument that the ALJ erred in relying on the
findings rendered by an arbitrator as part of APS' internal
appeals procedures, Complainant's Brief at 9, is also without
merit.  In view of "the strong federal policies favoring
arbitration generally . . . ," the United States Court of Appeals
for the Eleventh Circuit has stated that arbitration decisions
may not be ignored by the Secretary in adjudications under the
employee protection provision of the Surface Transportation
Assistance Act, 49 U.S.C. § 31105.  Roadway Express v.
Brock, 830 F.2d 179, 181 (11th Cir. 1987).  Rather, the court
held, pertinent arbitration decisions must be considered during
the 
[PAGE 3]
adjudication of the whistleblower complaint; the probative weight
to be accorded such decisions must be determined, based on the
adequacy provided the employee's rights in such arbitral
proceeding, on an ad hoc basis.  Roadway Express,
830 F.2d at 181-82; see generally Barrentine v. Arkansas-Best
Freight System, Inc., 450 U.S. 728, 740-46
(1981)(distinguishing between individual employee rights
guaranteed by statute and collective employee rights guaranteed
under collective bargaining agreements, which are at issue in
contractual arbitration proceedings).  The court's reasoning in
Roadway Express is equally applicable within the context
of this adjudication under the employee protection provision of
the ERA.  
     Furthermore, the ALJ did not defer to the conclusion of the
arbitrator concerning the basis for APS' termination of Straub. 
Rather, the ALJ noted specific findings rendered by the
arbitrator relevant to the egregious nature of Straub's conduct
involving the APS van on February 10, 1994 that corroborated the
ALJ's own findings on this issue, which are amply supported by
the record.  R. D. and O. at 5, 17, 19; see Roadway
Express, 830 F.2d at 182 n.8.         
     Finally, I reject Straub's argument that consideration of
pertinent findings rendered in an arbitration proceeding is
incompatible with the procedures governing hearings under the ERA
that are found at 29 C.F.R. Part 24.  In accord with the
reasoning in Roadway Express and, inasmuch as the decision
of the arbitrator was properly admitted into evidence, T. 138,
2122, 2134; see 29 C.F.R. § 24.5(e), I reject
Straub's argument in this regard.  I therefore adopt the findings
of fact rendered by the ALJ.  
     As background for the discussion to follow, I note these
pertinent facts.  Straub was employed by APS at the Palo Verde
Nuclear Generating Station (PVNGS) from December 18, 1989 until
he was terminated on February 15, 1994, as a Radiation
Technician.  R. D. and O. at 11, ¶ 1.  During his tenure at
PVNGS, Straub engaged in protected activity.  R. D. and O. at 9,
n.3; see R. D. and O. at 21, ¶ 71.  
     APS maintained a fleet of vans for the use of its employees
in their daily commute, and provided ample notice to PVNGS
employees of the rules established for use of such vans by the
employees.  R. D. and O. at 17-18, ¶¶ 49, 50; see
R. D. and O. at 15, ¶¶ 32-34, at 20, ¶ 65.  On
the morning of February 10, 1994, in the course of driving an APS
van from PVNGS at the end of his work shift, Straub stopped and
purchased two packages of beer and brought them into the APS van,
which was also occupied by Lawrence R. Pepple (Pepple) and three
other APS employees.  R. D. and O. at 14-15, ¶¶ 26-27. 
After dropping off the other three passengers at their designated
stops, Straub, accompanied 
[PAGE 4]
by Pepple, drove on to the Nugget Bar.  R. D. and O. at 15,
¶ 28.  Straub and Pepple consumed alcoholic beverages both
in the van prior to entering the Nugget Bar and during the time
that they were in the bar.  R. D. and O. at 15, ¶¶ 28-
31, 35, at 16, ¶ 42, at 17, ¶ 45.  By transporting and
consuming alcoholic beverages in the van, Straub knowingly
committed a violation of APS rules.  R. D. and O. at 15,
¶¶ 32-34.  
     After Straub and Pepple had both consumed alcoholic
beverages at the Nugget Bar, Straub gave the keys to the APS van
to Pepple, allowing Pepple to drive the van despite the fact that
he knew that Pepple was quite intoxicated.  R. D. and O. at 15,
¶¶ 31, 35-36, at 24, ¶ 91.  A few hours later,
Straub and Pepple were discovered parked in the APS van on a
school parking lot by the school principal, who had been alerted
to their presence by students who observed the improperly parked
vehicle and the drunken appearance of the two men.  R. D. and O.
at 15-16, ¶¶ 37-38.  A local police officer and APS
investigators arrived at the scene and each determined that
Straub was functioning at an impaired level.  R. D. and O. at
16-17, ¶¶ 39-44.  Straub was directed to report to APS
the following day, February 11, 1994 for fitness for duty
testing, to determine whether the February 10 incident had
involved the use of illegal drugs.  R. D. and O. at 27,
¶¶ 108, 110.  
     On February 10, 1994, Michael D. Shea (Shea), the APS Site
Radiation Protection General Manager, was notified of the
incident involving the APS van.  T. 3624 (Shea); see R. D.
and O. at 18, ¶ 53.  Shea was advised on February 14, 1994,
of the findings of the several APS investigators who had
investigated the February 10 incident and received
recommendations from senior managers at APS to terminate Straub. 
T. 3631-38, 3811-13 (Shea); see R. D. and O. at 7, at 18-
19, ¶¶ 51-56, at 24, ¶¶ 92-93.  Shea
deliberated the question of terminating Straub overnight and, on
February 15, 1994, directed that Straub be advised of his
termination in writing on that day.  T. 3639-40, 3841-46 (Shea);
CX 120; RX 17; see R. D. and O. at 7, at 14, ¶ 25.   

     Following notice of his termination, Straub was provided
information by APS concerning his appeal rights and options.  
R. D. and O. at 20, ¶¶ 64-66.  Straub pursued the
option of arbitration through the APS internal appeals process.  
R. D. and O. at 19, ¶ 57.  The arbitrator sustained the
termination decision.  RX 20; R. D. and O. at 19, ¶¶
57-60.     
II.  The ALJ's Conclusions of Law  
A.   Termination
     Section 211 of the ERA protects employees in the nuclear
industry from retaliatory discrimination based on the pursuit of
nuclear related safety concerns.  42 U.S.C. § 5851;
Mackowiak v. University Nuclear Systems, Inc., 735 F.2d
1159, 1163 (9th Cir. 
[PAGE 5]
1984).  In view of the overwhelming evidence in support of the
legitimate, nondiscriminatory reasons articulated by APS for its
termination of Straub, it is not necessary to engage in a
detailed analysis of the other specific issues raised by Straub
in challenging his termination by APS.  See generally
Carroll v. Bechtel Power Corp., Case No. 91-ERA-0046, Sec.
Dec., Feb. 15, 1985, slip op. at 11 n.9, aff'd sub nom.
Carroll v. United States Dept. of Labor, 1996 U.S. App. LEXIS
3813 (8th Cir. Mar. 5, 1996).  As indicated by the extensive
findings rendered by the ALJ concerning the evidence of record
that supports APS' basis for terminating Straub, R. D. and O. at
14-25, the ALJ clearly found the rationale articulated by APS to
be persuasive and determined that Straub had failed to establish
that discrimination was a motivating factor.  See Lockert,
867 F.2d at 518.  This conclusion is amply supported by
evidence of record and is therefore accepted.  
     In concurring in the ALJ's conclusion in this regard, I
reject Straub's argument that he was treated disparately from
other APS employees who had violated APS rules for use of company
vehicles.  The only other employee who was shown by Straub to
have engaged in misconduct similar to that of Straub was Pepple,
who was also terminated by APS.  R. D. and O. at 7, at 24, 
¶¶ 90-94; see also R. D. and O. at 20,
¶¶ 63, 64, 66, at 27, ¶¶ 108-110.  Although
Pepple later engaged an attorney and succeeded in gaining a
settlement with APS under which he was allowed to resign, T.
5149-50, the record indicates that Straub did not seek such
resolution, T. 4777-81, 4869-70; see  R. D. and O. at 12,
¶ 10.  It is also significant that there is no evidence of
record indicating that Pepple had engaged in activity protected
under Section 211 of the ERA.  R. D. and O. at 7, at 18, ¶
54; see T. 5084-5180 (Pepple).  As indicated by the
evidentiary support cited by the ALJ, overwhelming evidence of
record establishes that Straub was treated according to
established APS rules and practices in the aftermath of his
flagrant violation of APS guidelines on February 10, 1994.  I
thus agree with the ALJ that Straub failed to demonstrate, by a
preponderance of the evidence, that APS' decision to terminate
Straub was based, even in part, on a discriminatory motive. 
See Carroll, 1996 U.S. App. LEXIS at *6; Pillow v.
Bechtel Construction, Inc., Case No. 87-ERA-35, Sec. Dec.,
July 19, 1993, slip op. at 13 (citing St. Mary's Honor Center
v. Hicks, 113 S.Ct. 2742, 2749, 125 L.Ed. 2d 407, 419
(1993)), appeal docketed, No. 94-5061 (11th Cir. Oct. 13,
1994).  
B.   Hostile work environment 
     Straub urges that the ALJ erred in failing to find that the
record established that APS had created a hostile work
environment for Straub in violation of the ERA.  Complainant's 
[PAGE 6]
Brief at 15-18.  To establish retaliatory discrimination in the
form of a hostile work environment in this case, Straub must
establish five factors.  See Varnadore v. Oak Ridge
National Laboratory, Case Nos. 92-CAA-2, 92-CAA-5, 93-CAA-1,
Sec. Dec., Feb. 5, 1996, slip op. at 77-84.  Those factors are
as follows: the complainant must establish that he engaged in
protected activity and was intentionally retaliated against for
such activity; that such retaliation was pervasive and regular;
that the retaliation detrimentally affected the complainant; that
the retaliation would have detrimentally affected a reasonable
person under the same circumstances; and that respondent superior
liability is appropriate.  Varnadore, slip op. at 78-80;
see also Fuller v. City of Oakland, 47 F.3d 1523, 1527
(9th Cir. 1995)(addressing hostile work environment factors
within context of Title VII of the 1964 Civil Rights Act, 42
U.S.C. § 2000e et seq.).  The ALJ effectively
concluded that Straub had failed to establish the foregoing
factors.  R. D. and O. at 29-30; see  R. D. and O. at
23-24, ¶¶ 81-88 (finding that APS fostered a work
environment in which employees were encouraged to raise safety
concerns).  That conclusion is abundantly supported by the
evidence of record and is therefore accepted.  

C.   Continuing violation
     I also reject Straub's argument that the ALJ erred by
finding that Straub had not established a continuing violation of
the ERA such that allegations of retaliatory actions taken by APS
more than 180 days prior to July 11, 1994, when Straub filed the
instant complaint, would be timely under this complaint. 
Complainant's Brief at 17-18; see R. D. and O. at 31,
¶ 8; 42 U.S.C. § 5851(b)(1)(a).  To establish
timeliness on the basis of a continuing violation, a complainant
must demonstrate a course of related discriminatory conduct and
the complaint must have been filed within the statutory period
following the last of such related acts.  Varnadore, slip
op. at 61.  
     Although the ALJ concluded that certain employment actions
challenged by Straub in this case were time barred, R. D. and O.
at 31, ¶ 8, he also thoroughly addressed the merits of each
such allegation and found that Straub had failed to establish
that any of these actions constituted discriminatory or
retaliatory action against Straub in violation of the ERA, R. D.
and O. at 25-30, ¶¶ 98-121, 124-130; see R. D.
and O. at 31, ¶ 9.  I agree with the ALJ, R. D. and O. at
25-30, that Straub failed to show that any of these acts were
discriminatory and the concomitant conclusion that Straub failed
to establish a continuing violation of the ERA. 
     Accordingly, I adopt the recommendation of the ALJ that this
complaint be DISMISSED.

[PAGE 7]
     SO ORDERED.


                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.




[ENDNOTES]
           
[1] Section 211 of the ERA was formerly designated Section 210,
but was redesignated pursuant to Section 2902(b) of the
Comprehensive National Energy Policy Act of 1992 (CNEPA), Pub. L.
No. 102-486, 106 Stat. 2776, which amended the ERA effective
October 24, 1992.
 
[2] The following abbreviations are used herein for references to
the record: Hearing Transcript, T.; Complainant's Exhibit, CX;
Respondent's Exhibit, RX.

[3] The ALJ stated that "[t]he record in this proceeding plainly
reflects that Straub also fabricated documentary evidence."  
R. D. and O. at 14, ¶ 21.  Although not invoked by the ALJ,
the regulatory provisions applicable to proceedings before the
Office of Administrative Law Judges, found at 29 C.F.R. Part 18,
provide sanctions that may be imposed against parties or
representatives who fail to conduct themselves in an ethical
manner.  29 C.F.R. §§ 18.34(g)(3), 18.36, 18.38; see
generally Nolder v. Raymond Kaiser Engineers, Inc., Case No.
84-ERA-5, Sec. Dec., June 28, 1985 (holding that the Rules of
Practice and Procedure for Administrative Hearings Before the
Office of Administrative Law Judges, 29 C.F.R. Part 18, are
applicable to ERA whistleblower proceedings to the extent that
those rules are not inconsistent with the rules promulgated under
the ERA, found at 29 C.F.R. Part 24).  I also note that criminal
penalties are provided to protect against the obstruction of
proceedings before Federal departments and agencies.  See
18 U.S.C.A. § 1505 (West 1995); see, e.g., United
States v. Sullivan, 618 F.2d 1290 (8th Cir. 1980).  As the
ALJ did not apply any of the foregoing sanctions, I need not
review his conclusion that Straub fabricated evidence, except to
the extent that it pertains to Straub's credibility.  In that
regard, I accept the conclusions of the ALJ concerning glaring
inconsistencies in Straub's testimony. 

[4] The ALJ did state that he found APS' witnesses to be more
credible than Complainant.  R. D. and O. at 6.

[5] Straub was represented at the APS arbitration proceeding by a
representative of the Utility Workers Union of America.  RX 20. 
The employees of the Palo Verde Nuclear Generating Station, where
Straub worked, had not been unionized at the time of the hearing
in this matter, however.  T. 2393-97.

[6] The employee arbitration proceeding in this case provided
various safeguards for the protection of Straub's individual
rights as an employee of APS.  A review of the arbitrator's
decision indicates that Straub was allowed to call witnesses and
present evidence in support of his challenge to the termination 
decision, and did so, that sworn testimony was taken during two
days of hearings before an impartial arbitrator, and that Straub
was allowed representation in the proceeding.  RX 20.

[7] The parties stipulated that Straub had engaged in protected
activity during his employment with APS.  R. D. and O. at 9 n.3. 
The ALJ concluded, however, that Straub had fabricated much of
his testimony concerning protected activity that Straub alleged
occurred temporally proximate to the time of his termination.  
R. D. and O. at 12, ¶¶ 8, 9, at 14, ¶¶ 21,
24; see R. D. and O. at 21-22, ¶¶ 70-80; see
also R. D. and O. at 23-24, ¶¶ 81-89 (findings
pertinent to safety conscious environment fostered by APS
practices).  The foregoing findings are amply supported by the
record and are therefore accepted.  I note, however, that the
ALJ, in discussing the range of activity that is protected under
Section 211 of the ERA, failed to note that the holding of the
United States Court of Appeals for the Fifth Circuit in Brown
& Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984), the
only court decision holding that internal safety complaints do
not constitute protected activity, was legislatively overruled by
Section 2902(a)(3)(A) of the CNEPA, see n.1 supra,
106 Stat. 3123.  

[8] To prevail in this complaint based on circumstantial evidence
of retaliatory intent, Straub must establish by a preponderance
of the evidence that he engaged in activity protected under the
ERA, that he was subjected to adverse action, that APS was aware
of the protected activity when it took the adverse action, and
that the protected activity was a reason for the adverse action. 
See Simon v. Simmons Foods, Inc., 49 F.3d 386, 389 (8th
Cir. 1995); Mackowiak, 735 F.2d at 1162;  Thomas
v. Arizona Public Service Co., Case No. 89-ERA-19, Sec.
Dec., Sept. 17, 1993, slip op. at 20 (citing St. Mary's Honor
Center v. Hicks, 113 S.Ct. 2742, 125 L.Ed. 2d 407 (1993)). 
Straub challenges the ALJ's finding that those managerial
officials who recommended and/or decided to terminate Straub did
not have knowledge of his protected activity.  Complainant's
Brief at 18-19; Complainant's Rebuttal Brief at 2.  Straub also
urges that the ALJ committed reversible error by failing to
consider the effect of the temporal proximity between Straub's
protected activity and the allegedly discriminatory action taken
by APS.  Complainant's Brief at 10-14.  Assuming,
arguendo, that these arguments are valid, they are not
persuasive in view of the highly probative evidence that supports
the ALJ's finding that APS was motivated solely by legitimate
reasons to terminate Straub.  See generally Jackson and Roskam
v. Ketchikan Pulp Co., Case Nos. 93-WPC-007, 93-WPC-008, Sec.
Dec., Mar. 4, 1996, slip op. at 9-11 (discussing 
temporal proximity as only one factor to be considered in case of
intentional retaliation based on circumstantial evidence).    

[9] Contrary to Straub's assertion, Complainant's Brief at 10,
the ALJ properly delineated these burdens under Section 211 of
the ERA, as amended.  R. D. and O. at 8-11; see Dysert v.
Florida Power Corp., Case No. 93-ERA-21, Sec. Dec., Aug. 7,
1995, appeal docketed Dysert V. Sec'y of Labor, No. 95-
3298 (11th Cir. Sept. 28, 1995); Yule v. Burns International
Security Service, Case No. 93-ERA-12, Sec. Dec., May 24,
1995, slip op. at 7-13; see also Johnson v. Bechtel
Construction Co., Case No. 95-ERA-11, Sec. Dec., Sept. 28,
1995, slip op. at 2.  As discussed in Dysert, the CNEPA,
see n.1 supra, amended Section 211(b)(3) of the ERA
to heighten an employer's burden of proof under the dual, or
mixed, motive doctrine.  Section 211(b)(3)(D) of the ERA,
codified at 42 U.S.C. § 5851(b)(3)(D); see generally
Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159,
1164 (9th Cir. 1984)(addressing dual motive doctrine in case
arising under the ERA prior to the amendment by the CNEPA).  The
ALJ properly concluded that a dual, or mixed, motive analysis was
not reached in this case.  R. D. and O. at 11; see Lockert v.
United States Dept. of Labor, 867 F.2d 513, 519 n.2 (9th Cir.
1989). 

[10] The decision in Varnadore, which arose under the
Clean Air Act, 42 U.S.C. § 7622 (1988); the Toxic
Substances Control Act, 15 U.S.C. § 2622 (1988); the Safe
Drinking Water Act, 42 U.S.C. § 300j-9(I) (1988); the Water
Pollution Control Act, 33 U.S.C. § 1367 (1988); and the
Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. § 9610 (1988), was initially issued by the
Secretary on January 26, 1996.  The slip opinion citation above
refers to the page numbers in the reformatted version, which was
issued on February 5.