1. Did Complainants engage in protected activity?

2. Was the adverse action taken against Complainants in whole or in part a result of retaliation for their whistleblowing activities?

   The parties have stipulated and I find:

1. The parties are covered under the Energy Reorganization Act.

2. The only allegation of discriminatory treatment in this case is the discharge of Complainants.

(Tr. 5-6).

   Mark Pafford and Paul Husky had been with Duke Energy for well over twenty years by the time they were fired for making false and misleading statements concerning an explosion that occurred on July 12, 2000. Pafford and Husky worked as electricians, testing and repairing electric motors of all sizes at the nuclear facility. Because he had been concerned that Duke had only one procedure for testing motors of various sizes, Pafford had written what was called a "129 script" to Duke management in which he complained about the testing procedures not having been corrected.

   Approximately a month later, Pafford and Husky were working on a circuit breaker and a so-called Baker analyzer when an explosion occurred. Pafford and Husky told investigators that the cause of the explosion was mist from an ice-making machine. However, management concluded that Pafford and Husky had lied and given misleading information in that Pafford had by his own negligence caused the explosion. As a result, consistent with company policy, Pafford and Husky were fired.

   Thereafter, Complainants filed whistleblower complaints under the ERA in order to get their jobs back. What follows is a summary of the evidence adduced at the hearing.

   A. Testimony of Paul Husky

   Paul Husky works for Springer Home Improvements as a house painter (Tr. 28). He was employed by Duke Energy from October 19, 1978 until 2000. He started at Catawba Nuclear Plant as a utility man and worked in that position for six weeks. He also worked as a construction electrician, hanging cable trays, running cables and conduits, and setting motor control centers (Tr. 29). Later, he transferred to mechanical maintenance (Tr. 30).

   As a maintenance mechanic, Husky worked on trains for two to three years before working on cooling towers. "They cool the water so they can reuse it back inside the plant. The water in the lake is so hot they have to cool it down" (Tr. 30). He replaced motors, gear boxes, and fan blades and rebuilt gear boxes and motors.

   Burt Cowan, R. C. Mills, Tony Mashburn, Mark Pafford and Husky worked as a team and met in a team room located within the fence surrounding the plant (Tr. 32). Husky never worked with a piece of equipment known as a Baker analyzer but would handle paperwork regarding procedures and work requests (Id.).

   On July 12, 2000, Husky was working in the cooling tower shop rebuilding a gear box (Tr. 32). At the end of the day, Doug Lawing, Husky's supervisor, asked him to help Pafford perform some motor tests (Tr. 33). Lawing told Husky that Pafford was the head electrician on this job whom he should help gathering tools and completing paperwork.

   Pafford and Husky located the correct circuit breaker, which was in the middle of the floor by itself. The breaker was on a motor control center that was approximately twenty feet wide and eight feet tall (Tr. 35). They initialed the red tag and signed the work request that would verify the correct component and procedure (Tr. 36).

   Pafford was working on the breaker, and Husky, who is blind in his right eye, was approximately seven feet away on Pafford's left side. Husky was down on his hands and knees going through procedures and work requests. Pafford was standing at the breaker with his tick tracer, his gloves, his shield, a screwdriver, and the breaker set (Tr. 37). He used the tick tracer to verify that there was no voltage present. The Baker analyzer looks like a huge suitcase, about two and a half feet wide and about ten or twelve inches thick, and weighs easily over one hundred pounds. Inside is a computer keyboard and four leads. Three red leads hook up to the breaker, and the black lead is to the ground (Tr. 38-9).

   Pafford advised Husky that the ground wire was hooked up and that the other three wires were draped over the door. Husky felt "a wall of mist came across my back. I'd been outside where it was about a hundred degrees all day long. I'd been sweating all day long. And this was cold water hit me. I saw it was going on over my head. I hollered ‘Mark.' Before I could holler ‘Mark,' and a ball of fire was coming back at me" (Tr. 39).

   The breaker had blown, and the power went out in the area. The siren went off and the emergency lights came on. Pafford was dazed by the flash and was in shock (Tr. 40). Pafford then calmed down and went to the men's changing room on the same floor (Id.).

   Tommy Garrison, the unit supervisor, came in and stopped the ice condenser. Garrison recognized the mist and water on the floor. Husky took the ground wire off the breaker and closed up the machine. He packed up the tools and began to carry things back to a point where the items are "frisked" to check for radioactivity. Husky then went back to the meeting room and met Stephen McCarn, the general supervisor (Tr. 41-6).

   Husky advised McCarn of the breaker fire and the wall of mist from the ice condenser. When they walked into the shop, Pafford was already there. McCarn talked with them to make sure they were OK (Tr. 46-7). McCarn told Pafford and Husky to check in at the work control center and turn in the red work stub.

   Husky went home and came in to work at 5:15 a.m. the next morning. McCarn called and asked to speak with Husky in the meeting room. He requested that Husky write a statement about the accident (Tr. 50). After writing his statement, Husky went to a team meeting with coworkers and immediate supervisors. Pafford reported to work late and went to first aid, as he had burned his hand (Tr. 52).

   Husky went with Gary Morgan, a work-place safety employee, to the room where the breaker had blown. When they arrived, Husky noticed that alterations had been made within the room. "Blank flange that shot the moisture out the night before was no longer a blank flange. Somebody had run piping about twelve feet out, and down, straight down to a floor drain. And also, they'd cleaned the whole area up, spic and span. No boron on the floor, any longer. No boron on the cubicle doors. It looked like a whole different area" (Tr. 55).

   Husky advised Morgan of changes that he saw within the room from the night before. He also described the blowing of the breaker (Tr. 56-7). By 9:00am, Husky went back to the shop, met his co-workers and rode in the company truck to the cooling tower to work on a gear box.

   Husky arrived at work for his next scheduled shift on July 17. Sometime before lunch, he was called in to meet with Ms. Bolin, Rex Parker, Steve McCarn, and Doug Lawing regarding the blown breaker (Tr. 57-8). For the first time, Husky was shown a burnt clip boot at this meeting (Tr. 61).

   Husky was removed from service on July 19th (Tr. 62). He met with Ms. Bolin and Steve McCarn. They asked Husky if he had changed the lead on the analyzer. He denied doing so (Tr. 63). He was called back approximately a week later to sign his termination papers, which he did after noting in the remarks that he disagreed with the statements made (Tr. 65).

   Husky retained an attorney and decided to appeal his termination (Tr. 68). He met with Nancy Boss on August 15 for a step-two recourse interview. During the second meeting, Husky discussed returning to work and vacation pay. He felt pressured to change his story but continued to stick to his original recall of events (Tr. 70).

   Husky was discharged for providing false and/or misleading information (Tr. 72). Pafford was discharged for the same reason (Id.). As far as Husky knew, they were both fired for the reason given: Duke actually believed that they had lied (Tr. 73). In fact, Husky never raised any safety concerns (Id.). Husky never heard Pafford admit "the true cause" of the flash, which was connecting the Baker lead incorrectly (Id.).

   Husky was positive that the wall of mist hit the breaker. It was wet up the breaker cubicle, and there was dried boron all over the breaker (Tr. 76). He could not verify that the breaker itself was wet (Tr. 77).

   Husky and Pafford were not close friends and did not socialize outside work (Tr.82-3). Husky believes that he was discharged simply because he was working with Pafford at the time of the accident (Tr. 83).

   B. Testimony of Mark Giles Pafford

   Mark Pafford is a self-employed long-haul truck driver (Tr. 90). He previously worked for Owens Corning as a maintenance technician for almost a year. Pafford was discharged from Owens Corning for removing a broken fan from the scrap dumpster (Tr. 91). He began working at Duke Energy in September of 1973. He initially worked on a traveling crew that fixed large generators, motors and cabling until he was transferred to Catawba in 1988. He subsequently became a top-pay technician in 1993, when the company reorganized (Tr. 92).

   Pafford and some of the other technicians were concerned about procedures for testing motors. "We had one procedure to test all different sizes of motors. And what the team - - what we wanted was a more in-depth procedure for each certain voltage" (Tr. 94). They found that, when testing smaller motors, the readings would be greatly skewed.

   Steve McCarn was appointed to head a team that reviewed all the testing and motor procedures and made recommendations to change procedures. The team began meeting in 1998 or 1999 but, as of May 31, 2000, no changes had been implemented (Tr. 95).

   On the day of the accident, Pafford was working his normal shift from 6:00 am to 4:30 pm. Mr. Lawing, Pafford's boss, advised Pafford that Husky would be working with him that day (Tr. 120-2). Pafford and Husky were given copies of a work request that was to be completed immediately. Pafford proceeded to the work control center and obtained a red tag. They took a hand truck on which was a Baker analyzer, a black canvas bag that had a high voltage pair of coveralls in it, a pair of 600 volt gloves, a screwdriver, a tick tracer, and a face shield (Tr. 125).

   When they arrived at the circuit breaker, more than one red tag was present. They matched the numbers and verified their location. Pafford put on his protective clothing but not the face shield, which was scratched. He wore a hard hat and safety glasses. The breaker Pafford was working on was roughly three to three and a half feet off the ground (Tr. 128). Pafford took out a tick tracer to verify no voltage on the right side of the breaker. He then opened the Baker analyzer, attached the ground wire to the door frame and draped the other leads over the door of the cabinet. "The next thing I remember, Mr. Husky was hollering very loudly at me. Startled me, and I jumped" (Tr. 129-30). Pafford jerked back, stumbled to the right and fell down on the floor. Husky asked if Pafford was all right, and Pafford said he was OK and would be in the men's room.

   When Pafford returned, Husky was speaking with Garrison, the senior reactor operator. Husky was talking about being hit with a wall of water, but Pafford does not remember feeling water (Tr. 131). He does, however, remember borated water on the switch gear. Garrison told Pafford and Husky that they could leave. They packed up their equipment, and Pafford went back to the office. McCarn and Husky came into the office, and they all talked about what had happened. McCarn left to make some phone calls and told Husky and Pafford that they could leave after turning in the red tag (Tr. 132-3).

   Pafford was paged on his way home. He called Jim Rollins, assistant maintenance superintendent, back when he arrived at his home (Tr. 134). He left a message, and later that evening McCarn called. Rollins and Parker were also on the line and wanted to know what happened. When asked what happened, Pafford stated that he was not really sure (Tr. 134). After he went to bed, his hand began burning during the night. The next morning, three fingers and his thumb were blistered (Tr. 135).

   Pafford arrived for work late the following morning. He showed Lawing and McCarn his hand, and McCarn insisted he go to the on-site medical facility (Tr. 136). Pafford saw Dr. Leslie, who advised him to come to Riverview Clinic for debridement. He called and either spoke with or left a message for Lawing. After being treated, Pafford was told to come to the clinic every day to have the dressing changed.

   Pafford went back to Duke and wrote a statement about the accident. "Mr. McCarn asked me several times what happened. I told him the truth, the same story. And Mr. McCarn acted like he wanted me to change my story and I couldn't" (Tr. 140).

   On Monday, July 17, Pafford met with Parker, McCarn, Lawing and Bolin. They went over the events surrounding the accident. Pafford agreed that the memorandum of that meeting (RX 2 at 93) was generally accurate (Tr. 142-8).

   Pafford was removed from service on the 19th of July. Before being terminated, Pafford testified that McCarn "told me that if I hadn't wrote R129 screen, this wouldn't be happening. And he also told me that Wednesday was going to be my worst nightmare" (Tr. 146-9). On Wednesday, Pafford was removed from service. He had a recourse interview on or about August 15. He requested a copy of his statements but never received them (Tr. 157).

   Pafford acknowledged that the flash that occurred during testing was his fault. He stuck his hand in the breaker (Tr. 158). When using the Baker analyzer, Pafford was unsure of which hand he used to connect the ground lead. He was unaware of his burn until later that evening. Pafford believes that the investigation was a sham and that Morgan, the safety employee, never interviewed him (Tr. 160-3). Pafford failed to follow procedure by not wearing a face shield and not putting up barrier tape (Tr. 165).

   Pafford testified that, although he caused the flash by putting his hand in the breaker, the original cause was the mist of water which startled him, causing him to put his hand in the breaker (Tr. 168-71).

   Pafford admitted to falsifying work orders. At times, he signed off as having done work that he did not do (Tr. 178-9). Husky falsified documents at Catawba as well. Pafford also falsified documents by changing the parameters. He testified that he falsified data in this way due to time constraints (Tr. 180). Procedure 32, a testing procedure, was unsafe, and adequate comprehensive testing was never put in place (Tr. 183-4).

   While Gill was manager of the department, he set up a team to rewrite the procedures. Those procedural changes were never criticized by any person in management (Tr. 187-9). The team developed a procedure 32, which Pafford found dangerous. Pafford's mark-ups were never implemented (Tr. 190-1).

   Pafford was making $23.85 an hour when he was fired from Duke Energy. In addition, he worked a thousand hours a year in overtime and received a yearly bonus (Tr. 193). Pafford had not been able to make the same hourly wage or overtime at any subsequent job.

   C. Testimony of William Plyler

   William Plyler has been employed by Duke Power Company for 24 years. At the time of the July, 2000 accident, Plyler was a nuclear maintenance specialist, and D.D. Lawing was his supervisor (Tr. 98). Plyler spoke with Steve McCarn and advised him that he was not present at the time of the accident. Plyler arrived at work later, and McCarn questioned him about what he saw. Plyler stated that no Baker test set was on the hand cart. However, there was one under the desk (Tr. 100).

   Plyler stated that he heard Pafford make a statement to Husky about "having some boots to put on" while the three of them were in the team room alone (Tr. 102-8). Plyler assumed that they were going to replace the leads on the test set. Pafford and Husky asked him for denatured alcohol, which is used for cleaning electrical cables, but he did not have any. After Pafford was fired, he came to Plyler's house and demanded to know who had been talking. Plyler told him that he had no idea (Tr. 110-12). Plyler testified that he believed that his property was threatened by Pafford (Tr. 112).

   D. Testimony of Edward Black, Jr.

   Edward Black, Jr. has been employed by Duke Energy for twelve years as a nuclear ionic specialist (Tr. 206). His job requires metering and maintaining power relaying circuits and attending to the control circuits. He also handles high-voltage equipment. He frequently works with breakers (Id.).

   On July 12, Black was waiting to do a functional test. He had taken the breaker out for maintenance, tested it and put it back into the cubicle. The red tags were given to Pafford and Husky for motor testing. After the motor testing was to be completed, Black would test to see if the machine was operating correctly (Tr. 207-8).

   When Black heard about the flash, he went to the work area and observed Husky loading tools and Pafford checking out. Black went to check the breaker, realized he didn't

have the red tags and went to get them from Pafford or Husky. Black saw dried residue on the floor but none on the panel (Tr. 208-9).

   Black saw Pafford and Husky in their office. Pafford had ice on his hand, and Black heard him say, "he accidentally got on the wrong side of the breaker. He knew better, and, just as he contacted it, it was too late to pull out" (Tr. 210-11). Pafford asked Black to remove the breaker and get it out of Catawba. Two teammates working with Black took the breaker to the shop for repairs. Pafford called that night and again the next morning looking for the breaker. Black informed him that engineering had it (Tr. 212-3).

   Black testified that he told his supervisor, Jessie Garfield, about Pafford's request to dispose of the breaker. Within two to three weeks prior to the hearing, Debbie Bolin called Black and told him that Duke's attorneys wanted to speak with him.

   Black never wrote a statement about his conversation with Pafford and was told by Mr. Barfield to keep quiet and not mention this to anyone (Tr. 215-16). Black saw Husky with the Baker analyzer but never saw the RP test it (Tr. 218).

   E. Testimony of Stephen R. McCarn

   Stephen R. McCarn is employed by Duke Energy as nuclear maintenance sectional manager. He is also known as the maintenance manager at Catawba (Tr. 223). Rex Parker is the superintendent of maintenance and is McCarn's supervisor.

   There are multiple sections within the maintenance department. Pafford and Husky worked in the preventative maintenance section. Safety is very important at Catawba. There are daily safety meetings and training classes. Safety is also discussed every day in pre-job briefings. The team that Pafford and Husky worked with had the following duties:

"The team's duties were to do oil analysis. Go out and take oil samples, and come back and do the analysis part of it with a - - we have a special lab. Sometimes they were sent off site to McGuire or other places. They also did vibration trending. We have insurance requirements, and also plant requirements that we go out and trend our rotating equipment and other components and those folks would do that. We also did of course, motor, on line, off line testing. Also, in this particular group, they did cooling tower work. Did monitoring on cooling towers, and also did PM's and corrective work on cooling towers"

(Tr. 228-9).

   McCarn testified that he liked Pafford and trusted him to do a good job. He has known him since 1994 or 1995 and thought well of him. Pafford never told McCarn that he could not complete a job because of time constraints, problems with procedures or unsafe testing procedures (Tr. 229-30).

   McCarn first learned of the blown breaker from Husky. He was standing outside the office smoking a cigarette, and he told McCarn about the flash. Husky did not appear to be wet from the testing of the chiller motor in the ice condenser. McCarn took this information about the accident very seriously and went to tell Parker (Tr. 232-5).

   McCarn spoke with Husky and Pafford to make sure no one was hurt and asked if any of the equipment was damaged. The breaker and Baker analyzer were reported as being damaged. They never gave McCarn any impression that the accident was caused by anything other than water moisture (Tr. 236). After reading a full report, McCarn concluded that Pafford was not being truthful about the accident (Tr. 237).

   McCarn led an investigation into the cause of the flash. Another team was formed to look into the personnel safety aspect of the accident. The team consisted of a safety representative and two people from maintenance and was to help ensure that nothing like this ever happened again (Tr. 237-8).

   McCarn, Parker and Rollins went down to the accident area again and spoke with the ice condenser technicians. All three technicians stated that they were still transporting the ice at the time of the flash and that they had not moved the divert valve which causes moisture (Tr. 240-1).

   McCarn met with Tommy Garrison, the senior reactor operator, who was on the scene within three to five minutes after the flash (Tr. 340). Garrison stated that he felt moisture in the room and that mist was coming from the ice-making equipment. Robin Caskey stated that they stopped loading ice at 17:17 hours and that the breaker blew at 17:35. "Then we let the blowing line blow in a drum to make sure all the ice is out. After about three minutes, we diverted the ice to the atmosphere" (Tr. 344-5).

   McCarn called Pafford at home and spoke with him about the accident. Pafford never admitted causing the flash or that he was injured (Tr. 243-4).

   When McCarn visited the breaker involved in the flash, he checked the piping systems around that area for moisture. He also checked the roof for a leak. The breaker was sent to Met Lab at McGuire and tested for sodium tetraborate, which is the chemical mix for boron (Tr. 258-9). The breaker test did not reveal any mineral deposits of sodium tetraborate. There was some dried boron residue in cracks around the HVAC unit, but it was seven to eight feet from the breaker. After the accident, a vent hose was installed to drain fluid into a drain on the floor (Tr. 262).

   McCarn met with Pafford the following morning. Pafford told him that the top of his left hand was burned (Tr. 263). McCarn told Pafford to go immediately to the on-site medical facility. McCarn was suspicious after being told the day before that there were no injuries (Tr. 264-5).

   On the day of the accident, Pafford and Husky told McCarn that the test equipment had not been damaged. Pafford informed McCarn the following morning that the analyzer was broken. Gill and McCarn checked the Baker analyzer and found that it was not broken at that time (Tr. 266-7). McCarn testified that he "became suspicious after the interview with the Ice Condenser Techs on the night of the 12th. Again, when we looked at the analyzer on the 13th there was no damage and again, just something in my mind was saying, ‘Something isn't right. There's more to this than what we've been told'" (Tr. 271).

   On the morning of the 14th, McCarn found a component clip, or a boot and clip, in a trash can in the team room. It had some smoke damage and impressions of fingerprints on the clean portion of the boot (Tr. 269-70). McCarn determined that the prints matched a left hand. He took the damaged boot clip assembly to Mr. Parker. It was shown to Pafford, who stated he had no recollection of ever seeing it (Tr. 271-2). The damaged boot clip was then sent to the lab for testing. Red material that was found on the damaged breaker matched the red material on the damaged boot (Tr. 280).

   During McCarn's first meeting with Pafford, the latter never admitted to causing the accident. During the second meeting, when shown the damaged boot clip, Pafford began raising concerns about procedures and schedule pressures on his team (Tr. 291-2). McCarn never made any statements about the ramifications of filing an R129 report. Pafford asked McCarn if filing the R129 had anything to do with why he was being disciplined (Tr. 293). The decision to terminate Pafford and Husky was made on the morning of the 19th after interviewing the team. Pafford was repeatedly asked if he knew 1) how the flash occurred; 2) about the damaged leads; and 3) about the switched Baker analyzer, and he insisted that he did not (Tr. 295-6).

   During the team interviews, McCarn discovered that Plyler had overheard a conversation between Pafford and Husky regarding boot clips to change out (Tr. 299). Pafford or Husky asked whether Plyler had denatured alcohol, which he did not. However, he supplied them with Fantastic cleaning fluid. After McCarn discussed this new information with Parker and Bolin, the decision to remove Pafford and Husky was made (Tr. 300). They removed him from service on July 19, 2000 and subsequently terminated his employment on July 28, 2000 (Tr. 301).

   Pafford filed an R129 in January or February of 2000. A coach and counsel session was scheduled with Lawing to inform the employee that further use of any kind of curse words in any written document would be grounds for a permanent write-up. Subsequently, McCarn met with Pafford and described how disappointed he was in Pafford for use of the word "damn" in his memo (Tr. 307-9). The next time that the R129 was discussed was during the accident investigation.

   F. Testimony of Debbie Ramsey Bolin

   Debbie Ramsey Bolin is a human resources consultant for Duke Energy. At the time of the accident, she was a human resources specialist. Her duties included supporting maintenance and employees with any personnel functions. She assisted in interpretation and guidance of human resources policies and procedures and helped resolve employee concerns (Tr. 373-4).

   On July 19, 2000, a removal from service investigation was conducted for Husky. A removal-from-service report addresses issues, states employment history, including any type of corrective actions, outlines events, gives the employee's position, gives management's position, states the conclusion, and makes a recommendation. The conclusion of this investigation was that Husky had not been truthful during the investigation, and termination was recommended (Tr. 377).

   Pafford had previously had a coaching and counseling interview due to inappropriate language in an R129 he filed. A removal-from-service investigation was filed for Pafford on July 19, 2000. Bolin prepared this document as well. She recommended termination for the following reasons: "Due to providing false and/or intentionally misleading information to the company regarding the electrical flash and equipment used to perform the off-line electrical tests" (Tr. 382). He was terminated on July 28, 2000.

   Bolin never heard Pafford admit to causing the flash until he was deposed in this case. Pafford never complained that the coach and counsel was inappropriate or that the R129 was a factor in his termination. Bolin testified that McCarn never at any time suggested that Pafford should be discharged for any reason other than providing false and/or misleading information (Tr. 392).

   Husky's statement of July 13, 2000 was not included in the removal from service investigation report (Tr. 399). Bolin relied on employees with technical expertise and training in electricity and motors to handle the investigation. Despite Garrison's testimony that he could not remember seeing much damage on the leads that he looked at right after the accident, Pafford and Husky were terminated (Tr. 402-3).

   Bolin interviewed Plyler, Pafford, and Husky, but she never spoke with Bertha Cowan, R.C. Mills or Debbie Moore regarding the investigation (Tr. 408). Bolin recommended termination of Pafford and Husky because she honestly believed that they were not truthful during the investigation regarding the change-out of the equipment or how the electrical flash happened. Bolin believes that the "wall of water" story was fabricated. She also believes that Pafford knew he caused the accident and that his hand was burned (Tr. 409-14).

   G. Testimony of Rex Parker

   Rex Parker, who has been employed by Duke Energy for 23 years, is the maintenance superintendent and is the highest-ranking person in maintenance (Tr. 420). Seven people report directly to him, but there are 228 people in the maintenance department. Parker is well aware that it is unlawful to discharge an employee because of a raised nuclear safety concern.

   Pafford was terminated on July 28, 2000 for "providing misleading information about what caused an electrical flash in a breaker and for tampering with the test equipment and providing misleading information that prevented us from getting to the bottom of why we had that electrical flash. It was a trustworthiness issue" (Tr. 423). While the investigation was ongoing, D. D. Lawing and Steve McCarn actually pulled all the information together and made a proposal to Parker. When there is any kind of investigation or incident, the supervisor and manager meet, look into the facts, and make a proposal to the superintendent. When an agreement is reached, it is given to Parker's boss, Ron Jones (Tr. 423-4).

   Parker has known Pafford for ten years. Pafford was demoted from a supervisory position to a technician after a reorganization in 1994. He supervised teams who disassembled, repaired, and tested motors (Tr. 424). Large motors began to be sent off site for repair, and Pafford did not agree with that policy because it was costing the company more money. Using the motor team would be a better policy, Pafford thought (Tr. 425). Parker has known Husky for approximately ten years.

   There are approximately 2,500 procedures in maintenance. The majority of those are I & E procedures. Procedures must be revised from time to time, and Catawba has about fifteen procedure writers who maintain the 2,500 procedures (Tr. 427). In 1999, typically there was a backlog of approximately 1,000 procedure changes. They generally completed 150 to 200 changes a month at that time. Any employee could point out a procedure that needed to be changed (Tr. 427-8). The writer team had the authority to change procedures. For significant changes, a government form 5059 has to be submitted answering a certain set of questions to make sure that the proposed change does not increase the likelihood of an accident at a nuclear plant. A 5059 evaluation goes with major changes, and the Engineering Department reviews those (Tr. 429).

   In the summer of 2000, McCarn brought an R129 filed by Pafford to the attention of Parker. The word "damn" had been used in the memo, and Parker asked McCarn to speak with human resources to see if a follow-up action was needed. Human resources recommended coach and counseling (Tr. 433). Parker spoke with Pafford about the memo and said that he was disappointed about it and that this was not a constructive way to approach this issue (Tr. 434). Instead of an R129, Pafford could have filed a PIP, which is viewed by the station manager and the vice president, if Pafford believed that his complaint was that important. The R129s are only reviewed by the planners (Tr. 435).

   Parker followed through on the R129 filed by Pafford. He called Mark Furtick, the Procedure Supervisor, to ask about the status of the filing. Parker was told that marked changes had been made in Pafford's proposal, which had been sent back to Pafford and his team for comment and had been there for several months (Tr. 436).

   Parker found out about the flash on July 12, 2000 late in the day. McCarn came to his office and informed him. Electrical flashes are infrequent and are taken very seriously (Tr. 437). McCarn told him that they had been making two million pounds of ice for commercial sale. The ice-making team worked around the clock for several weeks making this ice. A critical piece of equipment, one of the chillers, was tripping, and the breaker team had already looked at the breaker. Pafford and Husky were assigned to go down and test the motor (Tr. 437-8). Jim Rollins, Steve McCarn, and Parker walked down to the area at the motor-control center. They looked at the motor control center for moisture and talked to some of the technicians making ice. They were concerned because having moisture and breakers is very serious and can cause breakers to flash (Tr. 438-9).

   Parker is confident that moisture did not cause the flash. There was no moisture on the breaker housing, the motor control housing, or the floor. They checked all of the surrounding piping because there are piping systems in the auxiliary building, but there were no liquid systems right there that had any kind of flanges or anything that could have sprayed water toward the front of that motor-control-center housing. Parker believes that Husky could have felt cold air and possibly a little mist but not a wall of water when the divert valve was opened (Tr. 441-3). He asked McCarn to begin an investigation, and McCarn interviewed the three ice technicians.

   McCarn came into Parker's office one morning, held up a boot clip, and told Parker that he had found it in the trash can. They showed the burnt clip to Pafford and Husky, who said that they did not recognize it (Tr. 445-7). Parker believes that Pafford and Husky repaired the analyzer and caused the flash (Tr. 448).

   Gill, the I&E manager, looked at the breaker, and he too agreed that moisture was not the cause of the flash. He believed that it would have taken a large amount of water to cause a flash. He believed that something grounded like a lead touched that breaker and caused the described fireball (Tr. 448-9).

   Although Pafford actually caused the flash, Husky aided in swapping the lead on the Baker test set and provided misleading information about what caused the flash. Husky packed up the equipment, and Parker believes that Husky saw the burned leads as he was packing the equipment (Tr. 455).

   H. Testimony of Nancy Bost

   Nancy Bost, currently retired from Duke, worked as a human resources consultant in Charlotte at Group Employee Relations (Tr. 484). Bost was assigned by her manager to review a recourse filed by Husky and Pafford. Employees who have been terminated have the right to send a letter to the president of the company requesting a review of the circumstances surrounding their discharge. Bost put together all of the information, conducted some interviews, and presented all of the information to Mr. Coley (Tr. 484). The discharge was upheld.

   Bost met with Pafford and Husky for interviews. She then met with Husky a second time about a threat that he reported having received. Pafford allegedly told Husky that, if he changed his story, Pafford would have him killed (Tr. 485-6). Husky said that he believed that the threat was valid and seemed very sincere (Tr. 486-7).

   In an interview, Plyler told Bost that he overheard a discussion between Pafford and Husky about replacing the leads on the Baker analyzer (Tr. 490).

   I. Testimony of Thomas R. Gill

   Thomas R. Gill, a Duke Energy employee for 32 years, is the electrical and instrumentation maintenance manager (Tr. 493). In July of 2000, he was the rotating equipment manager reporting directly to Rex Parker. Parker requested that Gill participate in the investigation of the July flash incident because of his subject-matter expertise. He was told that moisture was a possible cause of the flash but determined that there were no signs of sodium tetraborate on or near the control center (Tr. 494-5).

   Gill tried to recreate the event by opening the blow-down valve while he stood at the motor control center with the cubicle door open. They made sure that the conditions were the same and concluded that moisture could not have caused the arc. There was ice on the floor seven to ten feet away but no wall of water (Tr. 495-6).

   I. Legal Standard

   In order to present a prima facie case under the ERA, a whistleblower complainant must show that: (1) the complainant engaged in protected conduct; (2) the employer was aware of that conduct; and (3) the employer took some adverse action against the complainant. Dartey v. Zack Company of Chicago, 82-ERA-2 (Sec'y, April 25, 1983) slip op. at 5. The complainant must also present evidence sufficient to raise the inference that the protected activity was the likely reason for the adverse action.

   Respondent argues that 1) Husky did not view his report as the expression of a safety concern (Tr. 73); 2) Husky never asked Pafford to raise a safety concern on his behalf (Tr. 83); and 3) the record contains no evidence that the electrical flash produced a nuclear safety concern, much less a violation of NRC regulations (citing 42 USC 5851(a)(1)(A)) and Makam v. Public Service Electric and Gas Co., No. 98 ERA 22-26, op. at 5 (Final Dec. and Order, 2001).

   I find that Husky engaged in protected activity. The fact that he was merely responding to queries rather than initiating a contact out of concern for safety is not a basis for finding activity unprotected. Also, I take official notice that a fire in a nuclear facility, especially a fire of this size and nature, has the potential to implicate nuclear safety.

      2. Employer's knowledge of the protected activity

   There is no dispute that Respondent was aware of Husky's report because his views were made known to at least three members of management (Tr. 41, 46, 55).

      3. Adverse action

   It is clear and uncontested that Husky was removed from service and terminated eight days after the incident in question (Tr. 149; RX 4 at 209).

      4. Link between protected activity and adverse action

   Respondent agrees that Husky's statements to management about what happened on July 12, 2000 directly led to his termination but insists that the reason for Duke's action was the fact that Husky's report was false or misleading (Tr. 72; RX 2; Tr. 455). Employees forfeit protection when they lie during a company investigation. Sluder v. Detroit Edison Co., No. 93 ERA 22 op. at 4(Final Dec. and Order, 1995).

   There is conflicting evidence as to whether 1) there was a mist in the air at the time of the explosion and 2) whether the mist, if it existed, contributed to the explosion. Pafford and Husky assert that such a mist was present (Tr. 39; 168-9). Respondent's investigation concluded the contrary (RX 2, RX 3). I find that Respondent's conclusions concerning the cause of the accident are persuasive, although it is possible that mist was actually present.

   For these reasons, Husky's claim must fail.

      B. Mark Pafford       1. Protected activity

   As stated, under Department of Labor precedent, an employee concern is not protected by section 211 of the ERA unless the concern specifically implicates nuclear safety. Makam v. Public Serv. Elec. and Gas Co., supra. Pafford contends that his R129 statement (CX 1) implicated nuclear safety. Mr. Pafford testified to his motivation as follows: "I was afraid for some safety concerns that the way these procedures let people test motors, that they might test the motor and think it was good, and it could or would be bad" (Tr. 118-9). That is all. He did not mention nuclear safety. The R129 itself gives no clue that it relates to safety (CX 1). The record contains no information as to how these motors implicate safety, much less how they relate to nuclear safety. I cannot discover the function of these motors. Therefore, I find that Pafford has failed to satisfy the first and most basic requirement - namely, showing protected activity.

      2. Respondent's knowledge of protected activity

   There is no dispute that Respondent's management was aware of Pafford's R129 (Tr. 433-5).

      3. Adverse action

   There is no dispute that adverse action was taken against Pafford in that he was removed from service and later terminated (Tr. 149, 301).

      4. Link between protected activity and adverse action

   Pafford has failed to prove that his filing of the R129 was even a partial reason for his discharge. Rather, Respondent's evidence establishes that the only reason for Pafford's discharge was management's sincere and plausible belief that he had lied during the investigation and that he had made misleading statements.

   The only evidence of animus resulting from Pafford's R129 is his own testimony about statements allegedly made by his supervisor, Robert McCarn: "if you hadn't wrote that R129 this wouldn't be happening," and, "Wednesday will be your worst nightmare" (Tr. 153-4). There is insufficient evidence to establish that these statements ever were uttered. First, Pafford's letter, which is part of the step-two recourse report, makes no mention of such statements (RX 5 at 239-46). Second, that the "Wednesday nightmare" statement was ever made is on its face unbelievable because McCarn had at that point no reason to know that termination would take place on Wednesday (Tr. 293-5). Next, there is no confirmatory evidence that this statement ever was made. Finally, because Pafford lied at least as to his burns, I have no reason to credit his testimony over that of McCarn, who denied ever having uttered the statements (Tr. 292-3).

   It is true that Pafford was counseled for his use of the word "damn" in an e-mailed R-129. Although company policy on use of such words in e-mails is almost comically puritanical, the record supports the fact that counseling for this kind of use is a consistently applied company policy (Husky, Tr. 83-4). There is no evidence to the contrary. Other than Pafford's discredited hearsay statements of McCarn, there is no evidence that any member of management harbored animus against Pafford for either the substance of the R129 or the way it was worded.

   For the above reasons, I find that Pafford has failed to show that there was any connection between the R-129 and his termination. As a result, I need not make a "dual-motive" analysis. Also as a result, I must recommend denial of Pafford's claim.

   I hereby recommend that the Department of Labor dismiss the complaints of Mark Pafford and Paul Husky in this proceeding.

       FLETCHER E. CAMPBELL, JR.
       Administrative Law Judge

FEC/lpr

NOTICE: This recommended decision and order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this recommended decision and order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. 24.7(d) and 24.8.