Whether Respondent's alleged discriminatory conduct toward Complainant violated the employee protection provisions of the SWD and FWPCA.

   Complainant's complaint filed with the undersigned on January 20, 1998, pursuant to the pre-hearing order (ALJX-2), alleges the following acts by Respondent to be retaliatory in response to his protected activity:

Paragraph 10: Respondent attempted to coerce (an act of retaliation) Complainant into withdrawing his claims and changing his story;

Paragraph 13: Respondent retaliated by breaching [Complainant's] confidences and releasing his name to the labor union personnel and other persons in the plant. "The leak . . . to the union, fellow plant members, and ultimately the public, was done maliciously and without provocation or justification, and for the purpose of retaliating or discriminating against [Complainant]."

Paragraph 14: Respondent subjected Complainant to "harassment and duress on the job" and knew, or should have known, that Complainant was "subjected to threats of bodily harm, public contempt, and ridicule and that he was being intimidated and abused by co-workers . . . nevertheless [Respondent] knowingly and wilfully failed to take any corrective action to stop the harm or to protect [Complainant] [and] "allowed the offensive conduct to continue, and in this manner . . . either created, or knowingly abetted in the creation of a hostile work environment. . . ."

Paragraph 15: Respondent subjected Complainant to a random drug test "which was in violation of company rules and which was taken without the observance of appropriate medical protocol . . . " and thereafter terminated Complainant because he "failed the drug test."

Paragraph 16: Complainant was "not ever subject to dismissal for this drug test result . . . on account of the fact that the company did not follow its own internal procedures for requiring an impaired worker to seek drug rehabilitation after his first offense of discovered drug usage."

   The IWT plant provides treatment of waste and hazardous materials from Respondent's aircraft production facility. (Tr. 52-53, 58). Complainant testified that in the IWT plant, his work activity involved "run[ning] the filter presses" to treat the hazardous waste. The hazardous waste is transported through an effluent line from Respondent's plant to a location in the City of Dallas, where it is further processed. According to Complainant, Respondent is not to send hexavalent chrome to the City of Dallas that exceeds 2.0 parts per million. Complainant testified that on several occasions Respondent had exceeded the contractual amount of 2.0 parts per million in violation of the agreement with the City of Dallas. (Tr. 58-59, 66).

    Complainant testified he has received promotions and raises during his employment with Respondent. The year prior to his termination he earned approximately $60,000.00 per year at $26.80 per hour. According to Complainant, he worked a significant amount of overtime to raise his earnings up to his current annual level. Moreover, he received benefits from Respondent, such as participation in its 401-K Pension Plan, medical insurance and membership in the Employee's Club. (Tr. 54-55, 201).

   Complainant testified he is a member of the United Automobile Workers (UAW), Local Union 848 (herein the Union), and is considered a stationary engineer, a position within the collective bargaining of Respondent's employees represented by the Union. He served as a union steward from 1985 through 1986. (Tr. 56-57).

   Complainant informed Joanne Hopkins, a union steward, of the events that were occurring on his shift. (Tr. 75). Ms. Hopkins told him that he had to make a decision whether to report the events. On August 1, 1997, Complainant called Respondent's "hot line" and was put in contact with Susie Kent, an "environmental attorney," who was employed by Respondent. (Tr. 76, 80-81). Complainant reported the events that took place on July 31, 1997. (Tr. 82). She requested he provide his name, phone number and clock number so she could contact him later. Complainant was reluctant to do so because of the confidentiality assured by Respondent's hotline, however, he provided the information to Ms. Kent. (Tr. 80-81).

   As a result of his report, Complainant was interviewed on August 4, 1997 at Respondent's facility by Ms. Kent, Frances Phillips, "an environmental attorney" employed by Respondent, and Kevin McGlinchey, another attorney employed by Respondent. (Tr. 83-84). Mr. McGlinchey explained to Complainant that this was a confidential matter and he was not guaranteed representation by the union, since their discussion would not likely lead to discipline of Complainant. At that time, Complainant signed a form acknowledging that he was not guaranteed union representation. (RX-28). Complainant related the events of the July 31, 1997 spillage. Complainant testified that the meeting ended by the attorneys informing him they would talk to the other employees Complainant identified as being involved in the incident. Complainant reported for his shift following the meeting. (Tr. 84-85).

   On August 8, 1997, Complainant was called to meet with Ms. Kent and Ms. Phillips for a second interview. At this meeting, Ms. Phillips asked Complainant if he possibly observed water flowing into the lake and not hazardous waste. (Tr. 88). According to Complainant, he complained to Ms. Kent and Ms. Phillips that Respondent had not yet made an effort to clean the spillage area. He continued to see a six to eight foot ring of dried brown foam around the tank from which he had washed the foam on July 31, 1997. He informed Ms. Kent and Ms. Phillips that he would go to the Environmental Protection Agency (EPA) to protect himself from the events of July 31, 1997. (Tr. 89-90). Complainant was informed that Respondent was still investigating the matter. (Tr. 91).

   Complainant explained that before he used his vacation time in late August 1997, he was a "nervous wreck" because of the spillage incident and the events that occurred since he reported it. In addition to being interviewed several times by Respondent's attorneys, Complainant was interviewed for six hours by an EPA representative. (Tr. 113-114).

   Complainant testified that he would have transferred to another work shift if he had been reassigned. He had no problems with the third shift which reported at 11:00 p.m. at night. (Tr. 124). He later testified that despite the allegations of harassment and intimidation on his shift, he never asked to change shifts to avoid such confrontations. (Tr. 264).

   Complainant testified that in April 1997, upon his return after a five-day suspension, he requested his badge from the guards at the entry gate, however, the guards could not locate his badge. Mr. Scott was contacted and arrived at the entry gate. According to Complainant, Mr. Scott asked if he had a medical release for which Complainant expressed ignorance. Complainant testified that he was unaware of the rehabilitation treatment requirement and explained to Mr. Scott that he was not informed of such a requirement. Mr. Scott then commented, in front of the entry gate guards, that Complainant was suspended for failing the drug test and was required to submit a doctor's release form. Mr. Scott gave Complainant a doctor's release form, instructed Complainant to have the form completed, and then allowed Complainant to return to work the same day, before the form was completed. (Tr. 156-157).

   Complainant reported for work the following day with the form uncompleted. (Tr. 158). Complainant contacted Ms. Hopkins and informed her about the doctor's release form given to him by Mr. Scott and that neither his primary physician nor his family counselor would complete the form because they did not examine him for drug rehabilitation purposes. Ms. Hopkins informed Complainant that the union did not "get involved in this," but she contacted Mr. Sutton. Complainant met with Mr. Sutton, Mr. Meeks, and Mike Hall, the local Union president, and was informed he would "just need to get into a treatment program since . . . they didn't explain all this, and didn't give you the form and all this." (Tr. 159).

   Complainant testified he used the "1-800" card given to him by Mr. Scott and later was interviewed by a counselor. (Tr. 159). The counselor informed Complainant that there were only night classes available. Complainant was unable to make arrangements to attend the treatment classes because his work schedule required him to work at night. (Tr. 161). Complainant testified he informed Mr. Sutton of the scheduling conflict between the classes and his work schedule. According to Complainant, Mr. Sutton informed him "just to get the forms signed, not to worry about the treatment program, . . . and just go back to work, and test every thirty days." (Tr. 162, ln. 3).

   The following day, Complainant returned to the counselor and asked him to sign the doctor's release form. The counselor agreed to sign the release form but informed Complainant he would have to report to Respondent that Complainant was not in a treatment program. Complainant returned the signed form to David Airstrip, Respondent's Employee Assistance Program representative. (Tr. 162, 164). According to Complainant, the incident was not again mentioned to him and he was tested every month. (Tr. 162, 164). Complainant explained that he would not risk a second positive test for smoking marijuana since it would be analogous to burning his house down because of the effect it would have on his family and his career. (Tr. 166).

Bruce Kaylor

   Mr. Kaylor testified he is a team leader in the powerhouse and has been so since 1994. He has been employed by Respondent since 1979. (Tr. 503-504). He testified he had no problems with Complainant on the job. It was his understanding from his supervisor that Complainant was terminated for violation of company work rules, but did not know what specific rules had been violated. (Tr. 504-504).

   Mr. Kaylor testified he was not aware Complainant reported the July 31, 1997 incident to the company. According to Mr. Kaylor, he heard numerous conversations between many employees working on the first and second shifts in the power plant and the IWT plant who speculated that Complainant was the individual who reported the July 1997 incident to Respondent. (Tr. 505-507, 510-511). Mr. Kaylor explained that these employees did not appear to be angry or upset with Complainant but curious about the employees being interviewed by Respondent. (Tr. 508-509).

   According to Mr. Kaylor, he was not "glad" to see Complainant be terminated. Moreover, Mr. Kaylor did not witness Complainant's co-workers express any satisfaction about his termination. (Tr. 522).

   Mr. Kaylor testified that working around the equipment in both the power house and the IWT Plant could be highly dangerous and people could be hurt in the event of malfunctioning equipment. According to Mr. Kaylor, Complainant and his co-workers were getting along well enough, following the July 31, 1997 incident, to perform their work activity in a highly safe manner. (Tr. 512-513).

   Approximately seven to ten days following Complainant's "electrocution" incident in September 1997, he requested to be assigned to the board. (Tr. 513, 515). According to Mr. Kaylor, Complainant stated he wanted to work in a job position where he could work alone because he had the "general impression that the

men did not want to be around him, and they did not like him." (Tr. 514, ln. 5).

   When Complainant informed Mr. Kaylor of the co-worker's views towards Complainant, Mr. Kaylor was surprised because he had not picked up on their reactions prior to Complainant informing him of their sentiments. (Tr. 516). Mr. Kaylor could not recall whether Complainant told him that he was experiencing retaliation from his co-workers, however, he did recall Complainant mentioning the break room incident of employees walking out of the room without talking to him. (Tr. 527-528). Because of Complainant's concerns, Mr. Kaylor convened a meeting with some of the employees from the first and second shift. Complainant's co-workers stated to Mr. Kaylor that they did not believe they shunned or mistreated Complainant. (Tr. 516, 527-528). Mr. Kaylor testified that a few days after the meeting occurred, Complainant informed him that things were better between him and his co-workers. (Tr. 532-533).

   Mr. Kaylor became aware of the incident where Complainant was electrocuted

on the following morning. He received a note from Mr. Gentry relating Complainant's report of being electrocuted. Mr. Kaylor did not complete an incident report until ten days later since Complainant did not request medical treatment nor did he report to Respondent's medical facility. Mr. Kaylor considered the incident as minor. He testified that he was unaware of Respondent's policy regarding the amount of time in which an injury report should be completed following an incident. (Tr. 517).

particular certification "in substance abuse treatment or drug testing" nor is he a certified medical review officer. Furthermore, Dr. Woessner has not been involved in the process of actually testing samples for the presence of drugs. (Tr. 332). In the past, Dr. Woessner has reviewed drug test results with his patients. (Tr. 333).

   Dr. Woessner testified that drug screen testing is within the scope of forensic medical speciality. He explained that a combination of his medical and biology training provides him with the appropriate expertise and experience to review the drug testing procedures used for Complainant's October 1997 drug test. (Tr. 315). He later testified that drug testing procedures and actual drug testing is not his area of specialty. (Tr. 351). Dr. Woessner reviewed RX-1 through RX-41. In addition, Dr. Woessner interviewed Complainant on one occasion. (Tr. 316). He testified that any opinion rendered would be based upon reasonable medical certainty or probability. (Tr. 317).

   After having reviewed Respondent's exhibits and having spoken to Complainant, Dr. Woessner opined that the procedures followed and the actual test used for Complainant's October 3, 1997 drug test performed by Respondent were reliable and valid. However, Dr. Woessner opined that the test results were not reliable for various reasons. (Tr. 321-328, 331).

Weiss that he did not smoke marijuana and he was not aware of having ingested it. (Tr. 374). Dr. Weiss further testified that Complainant raised the possibility he could have ingested marijuana, however, he provided no specifics or explanation of how such ingestion may have occurred. (Tr. 402). Because Complainant could not provide an explanation for the positive test that "would be in any way construed as legal" and "there was no satisfactory or other information given that would lead [Dr. Weiss] to believe otherwise," Dr. Weiss confirmed that Complainant's October 3, 1993 drug test was positive and referred him to the "customer" relations representative for Respondent. (Tr. 374).

   Dr. Weiss opined, hypothetically, if Complainant had consumed a steak, laced with marijuana, two days before the test, it was remotely possible, but highly unlikely, that such consumption would have resulted in a positive test. He explained that the ingestion rate of marijuana is much less effective than inhalation of the substance into the lungs and a "significant" amount must be ingested. The lungs have more blood vessels which absorb the drug more readily and in higher quantities. Dr. Weiss further explained that by ingesting the marijuana, there could possibly be a sufficient amount present to detect, however, the amount would "not meet the cutoff level of fifty nanograms per deciliter." (Tr. 374-375, 401-402). Based on the absence of any notation indicating otherwise, Dr. Weiss testified that Complainant did not report to him that his sample was taken improperly. (Tr. 376).

reliability of the test because it merely indicated that the patient was not prescribed a sufficient quantity to trigger a level which can "legally be called a positive test." (Tr. 368).

   On cross-examination, Dr. Weiss testified the frequency of "false positives" in drug testing is "nil" because of the two completely different technologies used when the EMIT and the GCMS tests are conducted. The GCMS test is highly sophisticated and the frequency of false positives is below fifteen percent. The false positive rate for the EMIT is fifteen percent. (Tr. 381-382).

   Dr. Weiss testified that if Complainant had informed him during the interview on October 8, 1997, that he was being set up by the company, Dr. Weiss would have certainly made a note of that complaint on his MRO form. (Tr. 383).

   According to Dr. Weiss, Complainant's October 9, 1997 independent test is reliable. (Tr. 390). He opined that a cholesterol lowering medication might retard the disbursal of marijuana from the body or retard the excretion of marijuana through the liver function. He acknowledged that this was highly speculative and he would normally rely upon a toxicologist to pin point such matters to include the "half-life" of marijuana. (Tr. 391-392).

   Dr. Weiss testified that he did not recall whether in October 1997, he was provided with Complainant's October 9, 1997 negative drug test result to consider in light of the October 3, 1997 positive test result. (Tr. 422).

Kevin P. McGlinchey

   Mr. McGlinchey was called by Complainant as an adverse witness. Mr. McGlinchey is an attorney-at-law licensed to practice in the State of Pennsylvania and in the District of Columbia. He is employed as Senior Staff Counsel for Respondent. (Tr. 427-428).

   He testified that on August 4, 1997, Susie Kent, attorney for Respondent, informed him that she wanted to conduct an investigation concerning an environmental matter. Ms. Kent informed Mr. McGlinchey of her intent to speak with Complainant because he was a member of the bargaining unit represented by the Union. She wanted to insure she acted appropriately and the proper procedures were followed. (Tr. 428).

   According to Mr. McGlinchey, an employee has a right to union representation during any disciplinary interviews, however, under the U.S. Supreme Court case of "Weingarten," an employee is not entitled to union representation during the interview if it is reasonably likely not to lead to discipline. Such an interview would be considered an attorney-client privilege interview. (Tr. 429).

   In this matter, Mr. McGlinchey first determined that Ms. Kent's interview with Complainant would not involve any disciplinary action taken against Complainant as a result of his report of the environmental incident of July 31, 1997. (Tr. 430). He then contacted Mr. Meeks,

union. Mr. McGlinchey then left his office and spoke with Complainant out in the hall. Mr. McGlinchey testified Complainant was upset that his name was released and inquired how his name was given out to Mr. Meeks. Complainant informed Mr. McGlinchey that Mr. Meeks had then spoke to Mr. Sutton, who related Mr. Coppock's name to Ms. Hopkins. Complainant informed Mr. McGlinchey that his co-workers did not want to work with him. (Tr. 446-448). According to Mr. McGlinchey, he asked Complainant what the company could do to assist him in this matter. (Tr. 459). Moreover, Mr. McGlinchey instructed Complainant to inform Respondent of any threats made to him by any co-workers. (Tr. 460).

   Because Complainant raised with Ms. Kent and Ms. Phillips several "human resource issues" such as his light duty assignment, the release of his name to Respondent and being "electrocuted," Margo Parker, vice-president of the human resources division, requested a meeting with Complainant to discuss his concerns. On September 30, 1997, a meeting was held between Mr. McGlinchey, Complainant and Ms. Parker. (Tr. 460-461, 669-670, 676).

   Complainant informed Ms. Parker that he was "comfortable" with his current assignment. According to Mr. McGlinchey, Complainant informed Ms. Parker that in the past he had voluntarily worked outside of his work restrictions because he wanted to "carry his own weight." (Tr. 672). In addition, Complainant related to Ms. Parker that his co-workers were giving him the "cold shoulder" and described the break room incident. (Tr. 673). Complainant told Ms. Parker that he was upset because Mr. McGlinchey released his name concerning the July 31, 1997 incident, and that a confidence had been breached by Mr. Scott in April 1997. (Tr. 675-676). Complainant informed Ms. Parker that he requested Mr. Kaylor move him to the board to work so he could work by himself. (Tr. 672, 681).

   According to Mr. McGlinchey, Ms. Parker repeatedly asked Complainant whether Respondent could do anything to help his situation with his co-workers. (Tr. 672, 679-681). Complainant responded to Ms. Parker that Respondent could not make people like or trust him. (Tr. 673-674). Ms. Parker informed Complainant that Respondent was dedicated to making sure "we do what's right" and the company will not tolerate any type of retaliation against him. (Tr. 679). Complainant mentioned that Mr. Wilson had been in the IWT area although he was instructed not to return to the area. (Tr. 678). She informed Complainant he needed to report any such acts of retaliation. Complainant explained he understood everything Ms. Parker stated, however, he was confused because he could not see any openings for promotion. (Tr. 683).

   Ms. Parker explained that because of the collective bargaining agreement, if Complainant wanted to become a foreman, when the time came to make a career move, the report made by Complainant concerning the July 31, 1997 spillage would not be part of this evaluation. (Tr. 684).

   Ms. Parker asked if being isolated in his work station was his choice and if so, that was fine. She commented that if Complainant wanted a different assignment he needed to inform Respondent. (Tr. 680).

   Complainant informed Ms. Parker and Mr. McGlinchey that he had talked to Bruce Kaylor about the atmosphere in the work area and he thought Mr. Kaylor informed the employees that Complainant "did the right thing." (Tr. 686).

David Whitney

   Mr. Whitney testified he is the manager of Labor Relations and has held that position since 1995. He has been employed by the company since 1981. His primary function is to administer the various collective bargaining agreements which exist between Respondent and unions representing its employees. (Tr. 553-554). Mr. Whitney testified that in 1992, LOA 31 was negotiated with UAW, Local 848, in which Complainant was a member. (Tr. 554; See RX-1).

Employee Assistance Program administrator regarding "the referral process." According to Mr. Whitney, he informed "everyone that my foremost concern was getting [Complainant] to see the doctor." (Tr. 563). Mr. Whitney received a signed doctor's form after Complainant returned from suspension. (Tr. 563; See RX-11). He testified that he did not receive a follow-up letter from the Employee Assistance Program which indicated that Complainant was not attending counseling sessions for drug use. (Tr. 577-578 602). In the past, the Employee Assistance Program has notified Respondent that an employee was not complying with the program. (Tr. 603). Mr. Whitney did not indicate the regularity in which he received reports from the Employee Assistance Program indicating an employee was not complying with a treatment program.

   Mr. Whitney explained that when Complainant submitted his completed doctor's form, Complainant fulfilled Respondent's requirement to consult with a doctor. (Tr. 564). He further explained that it was not Respondent's policy to follow Complainant's treatment because it was the employee's responsibility "to maintain that treatment protocol." (Tr. 564, ln. 10). LOA 31 does not address an employee's responsibility to comply with a drug treatment program following the mandated five-day suspension from work. (RX-1, § 4).

   Mr. Whitney testified that he and Mr. Sutton informed Complainant that his testing sample was split and then frozen and could be tested at a different laboratory since he disputed the October 3, 1997 test result. The split sample was offered to Complainant, who indicated he was not going to spend $100.00 to have the specimen tested. During the termination interview, Mr. Whitney asked Complainant several times whether there was anything irregular about the manner in which the test sample was obtained to which Complainant did not indicate there was any problem. Moreover, Complainant did not indicate to Mr. Whitney that someone may have tampered with his food and that he may have unknowingly ingested marijuana. (Tr. 570-571).

Complainant submitted a sample on October 3, 1997. The requisition form reflects the Respondent's account as well as the specimen number for the particular drug test being requisitioned. (Tr. 657-659; See RX-14). As a result of Complainant's positive drug test, Ms. Blair initiated a "confirmed positive worksheet" which was completed by the MRO. Ms. Blair explained that the chain of custody for Complainant's sample was "intact" since all of the identifying numbers matched. In addition, the laboratory personnel would have indicated whether the sample was not received in a container sealed with a tamper-evident seal or if the seal was irregular. (Tr. 657-659; See RX-16). She testified she was not aware of anyone employed by Respondent who had tested positive twice and was not discharged since the commencement of drug testing in 1986. (Tr. 660).

   Prefatory to a discussion of the issues presented for resolution, it must be noted that I have thoughtfully considered and evaluated the rationality and consistency of the testimony of all witnesses and the manner in which the testimony supports or detracts from the other record evidence. In doing so, I have taken into account all relevant, probative and available evidence

and attempted to analyze and assess its cumulative impact on the record. See Frady v. Tennessee Valley Authority, Case No. 92-ERA-19 (Sec'y Oct. 23, 1995)(Slip Op. p. 4).

   Credibility of witnesses is "that quality in a witness which renders his evidence worthy of belief." Indiana Metal Products v. NLRB, 442 F.2d 46, 51 (7th Cir. 1971). As the Court further observed:

Evidence, to be worthy of credit, must not only proceed from a credible source, but must, in addition, be credible in itself, by which is meant that it shall be so natural, reasonable and probable in view of the transaction which it describes or to which it relates, as to make it easy to believe ...Credible testimony is that which meets the test of plausibility.

442 F.2d at 52. It is well-settled that an administrative law judge is not bound to believe or disbelieve the entirety of a witness' testimony, but may choose to believe only certain portions of the testimony. Altemose Construction Company v. NLRB, 514 F.2d 8, 16 and n. 5 (3d Cir. 1975).

   Moreover, based on the unique advantage of having heard the testimony firsthand, I have observed the behavior, bearing, manner and appearance of witnesses from which impressions were garnered of the demeanor of those testifying which also forms part of the record evidence. In short, to the extent credibility determinations must be weighed for the resolution of issues, I have based my credibility findings on a review of the entire testimonial

record and exhibits with due regard for the logic of probability and the demeanor of witnesses.

   Generally, I find that Complainant presented exaggerated, equivocal, inconsistent and vague testimony throughout the hearing. Complainant was unable to provide specific examples of retaliatory actions by his co-workers or Respondent from the date he reported the July 31, 1997 incident until he went on vacation in August 1997. Complainant explained that the work environment was stressful because he was concerned about the reaction of his co-workers to his report of the incident, however, he was unable to describe any specific actions taken against him by his co-workers. Moreover, Complainant was unable to provide specific examples of retaliation by his co-workers upon his return from vacation on September 14 through October 8, 1997. Instead, Complainant provided only speculation and suspicion of his co-workers' reactions to his report of the spillage.

   I further find that Complainant's description of being shocked by placing the cover on an electric panel of a chiller to be exaggerated. Complainant indicated that his injury was serious because it knocked him to the ground, caused him to have difficulty breathing, and caused his arm to go numb, yet, he completed his work shift and did not seek medical attention at any time. Although it may not have been Complainant's responsibility to insure Mr. Kaylor completed an accident report, Complainant did not act in any manner to confirm with Mr. Kaylor that the accident occurred, that it was a "serious" incident nor request authorization to seek medical care.

Because Complainant failed to follow-up with the accident report or seek medical attention, I find that Complainant did not find the incident to be as serious at the time it occurred as he did upon testifying.

   Complainant initially testified that he was forced to remain working on the board, beginning on approximately September 18, 1997 until October 8, 1997 when he was terminated. He later recanted and testified that he was performing his usual duties from September 18 until sometime after September 30, 1997 at which time he was restricted to work on the board due to his work restrictions from his knee condition.

   Complainant alleged in his complaint to the Office of Administrative Law Judges that he was threatened with bodily harm, however, he testified that he was never directly threatened with physical harm. (See ALJX-2, p. 4 ¶ 14; Tr. 111). According to Complainant, he felt threatened when Mr. Wilson went to the IWT plant although Mr. Wilson was instructed not to enter the area, and when Complainant's wife told him a car was parked outside their home. Because Complainant was not at the IWT plant when Mr. Wilson was present and Complainant provided no further evidence to show that Mr. Wilson wanted any type of interaction with him, I find that the record evidence does not establish Mr. Wilson directly or indirectly threatened Complainant. I further find that Complainant submitted no supporting evidence to show that the car, which appeared on only one day, was parked near Complainant's house to watch or threaten Complainant and his family, and, more importantly, that Respondent was responsible therefor.

   Finally, Complainant first testified that his work environment was so stressful that he would have changed to a different shift, however, he never requested a change in shifts. I find that his testimony regarding the work environment is exaggerated since he did not pursue a shift change in order to remove himself from the hostile environment. Although Complainant is not required to change his job position in order to remove himself from a hostile work environment, Complainant testified that he was willing to change shifts, yet when Respondent suggested a shift change, Complainant declined a new shift assignment. Because Complainant's actions are not consistent with his testimony, I find his testimony unreliable and incredulous.

   Consequently, I find and conclude that Complainant was not a reliable witness in view of the vagueness, inconsistency and exaggeration of his testimony.

A. The Burdens of Proof.

whistleblower proceedings, the complainant first must present a prima facie case. In order to establish a prima facie case, a complainant must show that: (1) the complainant engaged in protected activity; (2) the employer was aware of that conduct; and (3) the employer took some adverse action against the employee. Bechtel Construction Company v. Secretary of Labor, 50 F.3d 926, 933 (11th Cir. 1995). The complainant also must present evidence sufficient to raise the inference that the protected activity was the likely reason for the adverse action. Id. See also McCuistion v. TVA, Case No. 89-ERA-6 (Sec'y Nov. 13, 1991)(Slip op. at 5-6).

   The respondent may rebut the complainant's prima facie showing by producing evidence that the adverse action was motivated by legitimate, nondiscriminatory reasons. Complainant may counter respondent's evidence by proving that the legitimate reason proffered by the respondent is a pretext. Yule v. Burns International Security Service, Case No. 93-ERA-12 (Sec'y May 24, 1994)(Slip op. at 7-8). In any event, the complainant bears the burden of proving by a preponderance of the evidence that he was retaliated against in violation of the law. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742 (1993); Dean Darty v. Zack Company of Chicago, Case No. 82-ERA-2 (Sec'y Apr. 25, 1983) (Slip op. at 5-9) (citing Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089 (1981)).

Whitney testified, without contradiction, that Complainant violated LOA 31 when he tested positive twice for illegal drugs within a two year period. According to Mr. Whitney, LOA 31 mandated that Complainant be terminated. Thus, I find and conclude that Respondent met its burden of production to articulate a legitimate, nondiscriminatory basis for its adverse employment action.

   Once Respondent has articulated a legitimate, nondiscriminatory reason for its termination of Complainant, the burden shifts to him to demonstrate that Respondent's proffered motivation was not its true reason but is pre-textual and that its actions were actually based on discriminatory motive. Leveille v. New York Air National Guard, Case No. 94-TSC-3 and 94-TSC-4 @ 7-8 (Sec'y Dec. 11, 1995)(Slip op. at 7-8); Carroll, supra, @ 6; See Bechtel Construction Company, supra, at 934. Complainant may demonstrate that the reasons given were a pretext for discriminatory treatment by showing that discrimination was more likely the motivating factor or by showing that the proffered explanation is not worthy of credence. 42 U.S.C. § 5851(b)(3)(c); Zinn v. University of Missouri, Case No. 93-ERA-34 @ 5 (Sec'y, Jan. 18, 1996); Yellow Freight Systems, Inc., 27 F.3d 1133, 1139 (6th Cir. 1994). Complainant retains the ultimate burden of proving, by a preponderance of the evidence, that the adverse action was in retaliation for the protected activity in which he was allegedly engaged in violation of the SWD. Id. (citing Texas Dep't of Community Affairs, supra; See also Creekmore, supra.

    1. Complainant engaged in protected activity.

   Complainant testified, without contradiction, that he reported the spillage incident to Respondent and later to the EPA. As noted in the contentions of the parties, Respondent admits that Complainant was engaged in protected activity when he reported the incident to Respondent and the EPA. Moreover, Respondent admits that it was aware of Complainant's protected activity.

    2. Respondent's alleged discriminatory actions.

   Respondent contends that Complainant was terminated from employment because he tested positive for the presence of marijuana on two occasions within a two year time period. Respondent argues that LOA 31 mandated Complainant's termination.

   Complainant contends that Respondent falsified, in some manner, the October 3, 1997 drug test and Respondent's true reason for terminating him was because of his protected activity in reporting the spillage incident. Complainant further argues that before being terminated, he was subjected to a hostile work environment because Respondent released his name to union representatives who then released his name to his co-workers.        I find the record evidence does not establish that Complainant was subjected to a hostile work environment because of his protected activity. I further find that Respondent properly terminated Complainant in accordance with LOA 31 when he tested positive for marijuana on two occasions within a two year time period.

actions by his co-workers during this time period. Complainant only speculated that his co-workers were angry or upset with him for reporting the incident. Although Complainant may believe he was working in a hostile work environment during this time period from which he may have experienced a high level of stress, he did not provide any record evidence, other than conjecture about his co-workers' reactions, in substantiation of his claim.

   Paragraph 10 of Complainant's pre-hearing complaint (ALJX-2) alleges without specificity that Respondent attempted to coerce Complainant into withdrawing his claim and changing his story. The only event which could be construed as an attempt at changing Complainant's version of the spillage was Ms. Phillips' August 8, 1997 query whether Complainant may have "possibly observed water flowing into the lake and not hazardous waste." (Tr. 88). Complainant quickly rebuked that scenario. He never testified that Ms. Phillips or any other representative of Respondent asked him to change his "story," adopt a different version of the facts, or to "withdraw his claim." Accordingly, I find and conclude that Complainant failed to substantiate the allegations of paragraph 10 of his complaint.

(ii) The "leak" of Complainant's name to the Union, fellow plant members and to the public.

   Paragraph 13 of Complainant's complaint alleges retaliation by Respondent in breaching Complainant's confidences by releasing his name to labor union personnel.

   A composite of the credible evidence of record reveals that Mr. McGlinchey informed Mr. Meeks that Complainant would be interviewed pursuant to an understanding and practice established between Respondent and the Union. Mr. McGlinchey credibly denied informing the Union that Complainant reported the July 31, 1997 environmental spillage or that he would be interviewed about the incident.

   Complainant affirmed that his rights were explained to him and that he signed a form acknowledging he had no right to union representation at the August 4, 1997 interview. (Tr. 84; CX-28).

   The record is devoid of any evidence that Respondent informed "fellow plant members, and ultimately the public" that Complainant reported the spillage or voluntarily

submitted to an interview with Respondent regarding the spillage. Clearly, Mr. Sutton and Ms. Hopkins became aware of Complainant being interviewed by Respondent. In all probability, that disclosure came from the Union.

   Moreover, Complainant produced no evidence that co-workers or the general public were aware that he reported the spillage to Respondent. He surmised that his fellow workers knew of his report, but consistently denied such activity when queried about his involvement.

determining Neal's state of mind. The Court did not universally hold Respondent liable for actions of its employees because Neal's identity may have been revealed. In fact, Neal was assured protection against repetition of disclosure of her identity. I also note that to the extent the respondent was held responsible for the threat against Neal, it arguably was because of the production manager's supervisory status. There were no threatening remarks attributed to co-workers or deemed the responsibility of the respondent. In the instant case, Complainant has not produced any evidence that he was subjected to threatening remarks. In fact, he has denied being threatened.

   I find that Respondent did not breach Complainant's confidence in violation of the SWD as alleged in paragraph 13 of his complaint.

(iii) Respondent's alleged failure to take corrective action to stop the harm or protect Complainant from actions of his co-workers.

   Paragraph 14 of Complainant's complaint alleges that Respondent subjected Complainant to harassment and duress on the job, threats of bodily harm, public contempt and ridicule, intimidation and abuse by co-workers and allowed such offensive conduct to continue thereby creating or knowingly abetted in the creation of a hostile work environment.

   In brief, Complainant fails to point, with any specificity, to each event or incident that substantiates this broad and vague allegation. Those events about which Complainant testified at hearing are evaluated and analyzed hereafter.

   In addition to the allegations previously discussed, Complainant claims he received the "cold shoulder" from co-employees. The only event proffered which arguably could constitute "shunning" or a "cold shoulder" is the one-time departure of first shift employees from the break room as Complainant entered upon his return from vacation. There was no verbal encounter which occurred. Other than pure conjecture, Complainant presented no evidence that the alleged "cold shoulder" occurred because he reported the July 31, 1997 spillage or that it affected his employment in any way.

   When Complainant mentioned the incident to his supervisor, Mr. Kaylor, the matter was immediately addressed by Mr. Kaylor holding a meeting with first and second shift employees. As noted, Complainant reported to Mr. Kaylor several days later that "things were better."

   Complainant admitted that he was never physically or verbally threatened. (Tr. 259, 261). No evidence of public contempt or ridicule in connection with his protected activity was highlighted in the record. Although Mr. Oatman commented that he was "sick of the crippled people," it is clearly in reference to Complainant's knee condition and his preferential assignment to the control board and not to his protected activity. I so find.

   I further find that the incident in which Complainant was allegedly

   I further find that there is no record evidence to establish the second and third factors required to show a hostile work environment. Complainant failed to show that his co-

workers' actions were sufficiently severe or pervasive to alter the conditions of his employment, create an abusive working environment or have a detrimental effect on him. See Harris, supra at 370. Complainant continued to perform his usual work activity with his co-workers, with the exception of his working on the board, until sometime after September 30, 1997. He did not request a shift change although he admitted being willing to do so. Moreover, Complainant requested assignment to the board for a few days so he could work alone, however, he thereafter requested to return to his usual work activity with his co-workers after working on the board for two or three days.

   In addition, Complainant submitted no evidence to show he was detrimentally affected by his co-workers' alleged activity. According to Complainant, he was attending counseling sessions prior to reporting the incident, but he did not indicate whether he attended or wanted to attend additional sessions because of the stress he experienced after he reported the incident. Furthermore, Complainant was not prescribed new or additional medication as a result of the stress he was experiencing after reporting the incident. Notwithstanding Complainant's testimony that he used his three week vacation leave to remove himself from the hostile work environment, I find that such action does not establish a detrimental effect on Complainant because he voluntarily chose to use his vacation leave at that time, provided only speculation about discriminatory behavior by his co-workers prior to using his vacation leave, and continued to receive his regular salary at that time.

   Consequently, I find and conclude that the record evidence does not show intentional, discriminatory behavior that is sufficiently severe or pervasive to alter the conditions of his employment, create an abusive working environment or have a detrimental effect on Complainant.

   Based on the foregoing, I further find and conclude that the co-workers' actions, which Complainant describes as intentional discrimination based on his protected activity, would not detrimentally affect a reasonable person of the same protected class in Complainant's position.

   Finally, Respondent argues that it cannot be held responsible for actions taken by Complainant's union representatives. Because it has been determined that Complainant did not suffer intentional discrimination which was pervasive and regular and that detrimentally affected him, the fifth factor is moot and will not be discussed.

   As discussed above, there is no evidence Complainant was subjected to a hostile work environment because of his protected activity.

(b) The Alleged Discriminatory Discharge.

(i) The positive April 1997 drug test.

   It is undisputed that Complainant tested positive for marijuana use in April 1997. He admitted the use of marijuana only days before the test.

   Under LOA 31, it was Complainant's responsibility to fulfill the contractual requirements set forth therein. LOA 31 required an employee who tested positive for drug use to serve a five-day suspension, seek and obtain professional help for his drug use and agree to be tested for drug use on an accelerated random basis for two years. Failure to comply with any of the foregoing requirements constituted an independent basis for termination under the collective bargaining agreement.

   Complainant served a five-day suspension but did not seek professional counseling as required. Because of a discrepancy between Mr. Scott's direction and Complainant's understanding, Respondent permitted him to return to work and seek counseling thereafter. He enrolled in counseling but did not comply with this requirement because of a conflict with his work schedule.

   In Paragraph 16 of his complaint, Complainant alleges alternatively that he was "not even subject to dismissal for this drug test [October 3, 1997] . . . on account of the fact that the company did not follow its own internal procedures for requiring an impaired worker to seek drug rehabilitation after his first offense of discovered drug usage."

   Complainant's argument is circuitous and ill-founded. The obligation to fulfill the requirements of LOA 31 are not Respondent's, but Complainant's. His contention that he is insulated from termination for failing a second drug test within two years because he did not obtain proper counseling for his first drug failure is specious. As Respondent argues, Complainant's failure to comply with LOA 31 constituted independent grounds for discharge. Accordingly, I find Paragraph 16 of the complaint to be baseless and unfounded.

(ii) No evidence of false positive test.

   Paragraph 15 of Complainant's complaint alleges that Respondent gave him a random drug test in violation of company rules without observance of appropriate medical protocol.

   Complainant contends that Respondent falsified his October 3, 1997 test result to warrant his termination for violation of LOA 31. Complainant submitted no direct or circumstantial evidence to show that his urine sample for the drug test was not properly collected and tested in accordance with LOA 31. There is no evidence that Complainant complained to anyone prior to his termination that his sample was collected improperly. Moreover, he signed a document immediately following the collection of his urine sample which indicates that his sample was collected properly. It should be noted that Complainant did not explain the alleged events which took place that tainted his specimen when he submitted a urine sample on October 3, 1997 and how the procedure was improper.

   Furthermore, the laboratory confirmed that Complainant's sample was received "intact." Lastly, Ms. Blair confirmed that all of the identifying data for the urine sample matched with Complainant's identifying data. Thus, I find and conclude that the record evidence shows Complainant's urine sample for the October 3, 1997 drug test was collected properly and not tampered with in any manner and appropriate medical protocol was followed.

   Complainant did not explicate why his random drug test on October 3, 1997 violated Respondent's rules. His selection for testing was randomly determined by computer software and the date of the test was not out of sequence with previous testing dates. In the absence of any specificity regarding this complaint allegation, I find and conclude that it is meritless.

   After his October 8, 1997 discharge, Complainant submitted another urine sample to an independent laboratory on October 9, 1997, which resulted in a negative reading for the presence of marijuana. (CX-11). Dr. Weiss opined that the test results were reliable. However, the record fails to demonstrate that the independent test followed appropriate or proper medical protocol. There is no evidence that a proper chain of custody was maintained. The independent test used a threshold level of 100 nanograms/ml for a positive test rather than 50 nanograms/ml required by Respondent's testing.

   As noted by Respondent in Brief, it would be expected that Complainant would test negative six days after his October 3, 1997 positive test since "detectable concentrations of the metabolites in marijuana usually fall below the concentration necessary for detection within two to five days after the last use of marijuana." (Respondent's Brief, p. 15; See RX-21, p. 789).

   Accordingly, under the totality of the circumstances surrounding the independent test, I find its negative test result to be unpersuasive and irrelevant to the October 3, 1997 positive drug test.

   Complainant contends that as a matter of law, proximity in time between the

protected activity and the adverse employment action is sufficient to raise an inference of causation. Bechtel, supra, at 934; Couty v. U.S. Dept. of Labor, Sec'y Dole, 886 F.2d 147, 148 (8th Cir. 1989)(Complainant was discharged approximately thirty days after he engaged in protected activity.); White v. The Osage Tribal Council, Case No. 95-SDW-1 @ 4 (ARB Aug. 8, 1997).

   Although Complainant was terminated within sixty-five days of engaging in protected activity, he is not protected from disciplinary action or termination due to his own misfeasance in violating established regulations by which his employment was governed. NLRB v. City Disposal Systems, Inc., 465 U.S. 822, 837, 104 S.Ct. 1505, 1514 (1984)(employee cannot engage in protected activity with impunity); Reef Industries Inc. v. NLRB, 952 F.2d 830, 837 (5th Cir. 1991)(employees' right are not absolute, they must be balanced against the employer's long-recognized right to maintain order and respect); Dunham v. Brock, 794 F.2d 1037, 1041 (5th Cir. 1986)(an ERA whistleblower is not automatically absolved from abusing his status and overstepping the defensible bounds of conduct); Conaway v. Instant Oil Change, Inc., Case No. 91-SWD-4 (Sec'y Jan. 5, 1993).

   For the reasons discussed above, I find and conclude that Complainant failed to present any evidence to show that he was subjected to a hostile work environment because of his protected activity or that Respondent's proffered reasons for his termination are a pretext for discriminatory retaliation. Thus, I find and conclude that Respondent terminated Complainant for legitimate business reasons and not because of his protected activity.

   Accordingly, I find and conclude that based on the record evidence, Complainant has not met his burden of proof to demonstrate that Respondent's proffered reasons for his termination were pre-textual but rather were motivated by his protected activity. I further find and conclude that Respondent lawfully terminated Complainant in accordance with the collective bargaining

agreement LOA 31 between Respondent and the UAW, Local 848 when he tested positive for marijuana twice within a two year time period.

   Based upon the foregoing Findings of Fact, Conclusions of Law, and upon the entire record, Respondent has not unlawfully discriminated against Steve Coppock because of his protected activity and his complaint is DISMISSED.

   ORDERED this 24th day of July 1998, at Metairie, Louisiana.

      LEE J. ROMERO, JR.
      Administrative Law Judge

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-4390, 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. §§ 24.8 and 24.9, as amended by 63 Fed.Reg. 6614 (1998).