U.S. Department of Labor
Office of Administrative Law Judges
1111 20th Street, N.W.
Washington, D.C. 20036
DATE: February 3, 1987
CASE NO. 86-ERA-12
IN THE MATTER OF
DAVID H. SMITH, JR.
CLAIMANT
v.
CATALYTIC, INC.
EMPLOYER
Appearances
Don Murrell, Esquire
For the Complainant
Peter J. Hurtgen, Esquire
For the Employer
BEFORE: ROBERT G. MAHONY
Administrative Law Judge
RECOMMENDED DECISION ON REMAND
Supplemental Statement of the Case
[Page 2]
This is a proceeding under the Energy Reorganization Act
of 1974, as amended, 42 U.S.C. § 5851 and its implementing
regulations at 29 C.F.R. Part 24.
The Complainant, David H. Smith, Jr. was terminated by
his employer on September 27, 1985 for refusing to return to
a work area he felt was unsafe because of exposure to noble
gas. He filed a complaint with the Wage and Hour Division,
Employment Standards Administration, U.S. Department of Labor
on November 17, 1985. Conciliation efforts failed to produce
a mutually satisfactory result. A subsequent investigation
by the Wage and Hour Division determined that the Complainant
was terminated from Catalytic, Inc. due to his refusal to
work a job assignment. The Complainant was informed of the
conclusion on December 9, 1985.
The Complainant filed a request for a formal hearing
with the Office of Administrative Law Judges on December 20,
1985. A hearing was held in West Palm Beach, Florida on
January 21, 1986, at which time the parties were given an
opportunity to introduce evidence, cross-examine witnesses
and present oral argument.
A recommended decision was entered in the above cause
on March 10, 1986. By Decision and Remand order dated May
28, 1986 the Secretary remanded the proceedings to the
Administrative Law judge. The remand order directed the
Administrative Law judge to take additional evidence and
inquire into the reasonableness in the circumstances of the
complainant's refusal to work in what he allegedly believed
to be an unsafe area in accordance with the Secretary's
holding in Pensyl v. Catalytic, Inc., 83-ERA-2. Pursuant to
the Decision and Order on Remand a second evidentiary hearing
was held in West Palm Beach, Florida on September 26, 1986.
Statement of Facts
The Complainant David H. Smith, Jr. has been a sheetmetal
worker since 1973. He began work at the St. Lucie Power
Plant on September 3, 1985. He obtained the job through the
union hiring hall. After about two weeks, as part of his
training, he went to radiation school. Subsequently, he was
permitted to work anywhere in the plant except where a
respirator was required because he could not be properly
fitted.
[Page 3]
On September 26, 1985, he was assigned to work at level
"minus-5" putting in fire dampers. He had worked at this
level the previous day. While leaving the work area at about
8:30 A.M., a co-worker Mr. James "Chico" Tyree determined
that he was "contaminated" when he went through the process
of being "frisked". Tyree told Smith to get checked out to
see if he was "contaminated". Smith determined that he was
after a radiation device went off. Health physics personnel
advised Smith that he was exposed to noble gas and not
radiation contamination. He was advised to sit in a breezeway
area and the air would dissipate the noble gas.
Smith went to the breezeway and was sitting there for
about one-half hour when his supervisor, Mr. Gene Wright,
came down the corridor and asked what he was doing. (Tyree
and other Employees were also in the breezeway area letting
noble gas blow off.) The Complainant stated that he was
"crapped up" with noble gas. Wright told him to go back to
his work area. Smith told Wright that he did not want to go
back down to that work area and asked for another assignment.
Wright advised Smith that "minus-5" was the only job available,
and when Smith suggested that absent other work, Wright
wanted him to go home, Wright, according to Smith, said
"Yes, that's all I have." Smith subsequently left and went
to the union hall. The following day he reported back to
work, whereupon Mr. Wright handed him a termination slip and
Smith left the work site.
At the hearing upon remand, David Smith testified that
he has a recurring problem with his lungs. In 1978 he spent
a week in the hospital after coughing up blood. He was
diagnosed as having acute chronic bronchitis. The doctor
advised him to quit smoking cigarettes or by the time he was
35 he would not be able to leave the house without an oxygen
bottle. He was also told to take precautions that materials
he breathed were not hazardous to his health. On September
3, 1985 the day he was hired by Catalytic, and subsequently
on the day he received his red badge, he noted on employee
medical forms that, in the past, he had coughed up blood,
had a chronic cough and ear, eye or throat trouble.
As a sheet metal worker, Smith works with fiberglass
materials that require grinding. He wears a mask to avoid
[Page 4]
breathing contaminants. He testified he became concerned
about his lung condition when he learned he was exposed to
noble gas, especially when he set off the friskers. He
did not, however, talk to anyone from health physics
regarding how the breathing of noble gas would affect his
lung condition.
On cross-examination, Mr. Smith testified that he
attended the training course required for all Employees,
where he learned that noble gas was treated as a skin
disorder, a beta skin contamination.1
1 Noble gases are described in the
course material as
follows:
Airborne Contamination ... noble gas is also
produced during the fission process and released
into the coolant. Anytime coolant leaks or is
vented noble gases can be released into the air.
Unlike iodine and particulates, noble gases will
not be taken into our blood or bodies when they
are breathed in. Noble gases emit beta radiations
and have the same limit as skin of the whole body:
7.5 rem/quarter .... Noble gases are drawn off and
held in larger tanks for a few half-lives prior to
release .... Noble gas half-live usually in mintues.
2 The threshold theory is that
it takes a certain amount
of radiation before a person begins to suffer any particular
damages. The linear theory holds that a person begins to
suffer damages after any amount of exposure over a given
period of time.