McNeal v. The Foley Co., 98-ERA-5 (ALJ July 7, 1998)

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USDOL/OALJ Reporter
McNeal v. The Foley Co., 98-ERA-5 and 14 (ALJ July 7, 1998)

U.S. Department of Labor
Office of Administrative Law Judges
John W. McCormack Post Office and Courthouse
Boston, Massachusetts 02109
Room 507
(617) 223-9355
(617) 223-4254 (FAX)

Case No. 98-ERA-14
98-ERA-05

File No. 06-0030-98-802
06-0330-97-803

Date: July 7, 1998

IN THE MATTER OF:

Rhonda R. McNeal,
Complainant

The Foley Company,
Respondent

For the Complainant:
Carol Oppenheimer, Esq.
Matthew Ortiz, Esq.

For the Respondent:
Paul D. Seyferth, Esq.
Jay M. Dade, Esq.

Before:
The Honorable David W. DiNardi
Administrative Law Judge

RECOMMENDED DECISION AND ORDER

This case arises under the Energy Reorganization Act of 1974 as amended, 42 U.S.C. §5851 (hereinafter "the Act" or "the ERA"), and the

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implementing regulations found at 29 C.F.R. Part 24. Pursuant to the Act, employees of licensees of or applicants for a license from the Nuclear Regulatory Commission (hereinafter "the NRC") and their contractors and subcontractors may file complaints and receive certain redress upon a showing of being subjected to discriminatory action for engaging in a protected activity. The following abbreviations shall be used herein: ALJ EX for an exhibit offered by this Administrative Law Judge, CX for a Complainant's Exhibit and RX for a Respondent's Exhibit. By letter dated August 12, 1997, Rhonda R. McNeal (Complainant herein) filed a complaint alleging acts of retaliation, harassment and, ultimately, termination from her journeyman carpenter position which she occupied from February 19, 1997 through March 26, 1997. (ALJ EX 1) The complaint was referred to the Office of Administrative Law Judges under cover of letter dated October 8, 1997. (ALJ EX 3)

By letter dated October 15, 1997, Complainant filed another complaint alleging that Respondent has given highly derogatory and unjustified references about Complainant to a prospective employer. (ALJ EX 8) This complaint was referred to the Office of Administrative Law Judges under cover of letter dated October 8, 1997. (ALJ EX 10)

By Order dated February 3, 1998, the complaints were consolidated and scheduled for hearing on April 27, 1998. (ALJ EX 16)

                   Post-Hearing Exhibits

ALJ EX 26     Letter from Respondent's counsel           04/24/98
              requesting subpoenas

ALJ EX 27     Letter from NRC requesting that it         04/29/98
              be removed from the service sheet 

RX 20         Calendar demonstrating days worked         05/04/98
              by Complainant during February 1997
              through April 1997

ALJ EX 28     Order Regarding Post-Hearing Briefs        06/08/98

Summary of the Relevant Evidence

Complainant was employed by Respondent from February 19, 1996 through March 26, 1997. Respondent, a nationwide general contractor, was awarded the Dual

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Axis Radiographic Hydro Test (DARHT) project in May 1994 and began construction in earnest in October 1996. DARHT, a multi-million dollar project in northern New Mexico at the Los Alamos National Laboratory (LANL), a facility run by the University of California for the Department of Energy (DOE), is being built as part of the DOE's science-based stockpile stewardship program. DARHT will be used to evaluate the safety and reliability of nuclear weapons, evaluate conventional munitions and study high-velocity impact phenomena. It will be equipped with two high-intensity x-ray machines, intended to record images of interior details of materials driven by high explosives. (CX 4; TR 86)

The Occupational Safety and Health Division (OSHD) of the DOE conducted a March 31, 1997 tour and an April 1, 1997 inspection of the DARHT facility. The report that was generated cited Respondent for deficiencies of 29 C.F.R. 1926, Safety and Health Regulations for Construction. (CX 6) In general, the report made the following findings in regards to the employee's concerns¹ : the employee's concern that the weekly safety meetings were ineffective was found to be well- founded; there were deficiencies in Respondent's fall protection; concerns over the way in which Respondent managed occupational noise exposures; concerns that water containers were in areas cordoned off to prevent entry; concerns over the manner in which Respondent responded to an identified workplace hazard and investigated resulting injuries; concerns over Respondent's management of recognized workplace hazards such as vibrational stressors; and concerns over Respondent's failure to adequately protect exposed rebar. On April 2, 1997, LANL Business Services issued a memorandum to Respondent, placing construction of the DARHT facility in a "safety stand down" mode.² (CX 3; TR 105) The stand down ensued for twelve days, during which time Respondent had to prepare a corrective action plan at the behest of LANL. (TR 596-593) On April 3, 1997, a complete construction safety inspection was conducted under guidance of the Safety and Health Regulations for Construction, 29 C.F.R. 1926, by LANL Environment, Safety and Health construction safety inspectors with support from OSHD construction safety subject matter experts. Thirty-two additional deficiencies were identified during that inspection, some of which were described as serious. (CX 5)

The LANL Construction Safety Inspection Report Concern Deficiency Tracking System (CDTS) reflects that Mr. Jim Carothers, a LANL employee,³ inspected DARHT on numerous occasions. (RX 19) The CDTS form begins with the preamble "During this inspection, the following violations of occupational safety and health standards (OSHA), your safety plan, or Laboratory Safety Procedures were found." The CDTS documents which were produced at hearing

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extended from February 19, 1997 through March 21, 1997 and included findings of no deficiency as well as some findings of deficiencies. The deficiencies included such items as fire extinguishers with an outdated inspection, an employee working at a twelve foot elevation without fall protection, an employee without a protective harness/lanyard, the link crane operator had not performed the daily check off, and failure to wear eye protection. On February 19, 1997, Mr. Carothers noted a deficiency for exposed rebar presenting an impalement hazard and on March 8, 1997 and March 21, 1997, Mr. Carothers noted a deficiency for exposed rebar.

Complainant, a carpenter by trade since 1977, currently resides in Arizona and works as a union carpenter. Complainant has participated in numerous unspecified safety programs (TR 186-188), and was awarded points through her union for participating in those programs in 1996 and 1997. Complainant reported to work on February 19, 1997 and received a 3/4 inch thick packet of safety training reading materials, watched a short video on how to enter the restricted access worksite, and was sent to work. Upon her first viewing of the worksite, Complainant noticed a number of unsafe working conditions, including the lack of handrailings on second level work spaces, lack of safety harnesses, jutting rebar at the end of a work deck, ladders that were not tied down, lack of hoists next to ladders, multiple persons on a ladder at the same time, and exposed rebar that presented the risk of impalement. Complainant mentioned these conditions on this day to Mr. Garry Richards, who was also hired on that day as foreman. Mr. Richards designated Complainant as the new safety officer on the spot. (TR 195)⁴ Complainant, who did not have adequate supplies to remedy the immediate dangers, approached Mr. Twite, the superintendent on the job, in order to obtain the needed materials. Mr. Twite told her to see Mr. Roy Epperson, Respondent's general foreman on the project, to get the things she needed. According to Complainant, she raised safety concerns to Mr. Epperson on her first day of work, February 19, and on February 20 and 21 as well. (TR 198) The safety concerns included the matters already identified as well as drinking water, crane operation, and failure to warn before detonating an explosion. (TR 198-203) Mr. Epperson's standard response to Complainant's concerns was either "God damn union whiners" or "kiss my (expletive). We don't give a (expletive)." (TR 203)⁵

Complainant attended a tool box safety meeting, which meetings are generally held on a weekly basis, on February 20, 1997; March 10, 1997 and March 18, 1997. (RX 2; RX 3; RX 4) (See Generally RX 18) Complainant testified that the meeting on February 20, 1997 was not a toolbox safety meeting, but a meeting to demonstrate to the carpenters how to use newly obtained equipment, with which most of the carpenters were not familiar. (TR 206- 207) Based on her twenty-one years of experience attending tool box safety meetings on a weekly basis, Complainant describes such a meeting as an open forum where all workers are present and may raise concerns about any issue on the worksite. Complainant stated that she had expressed some of her safety concerns at the toolbox meetings that she attended and that Mr. Richards was also there, as well as Mr. Epperson and Mr. Twite. Generally, Mr. Epperson would respond with some "snide rude comment" or "something really nasty." (TR 218)

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On Monday, February 24, Complainant was telephoned and told to stay home because of inclement weather. Complainant called DOE on that day because she was unable to reach Mr. Frank Herrera, the business agent for Carpenters Local 1353 who is responsible for overseeing local office operations and members' grievances, and because Mr. Twite referred her to Mr. Epperson, by whom she was simply met with "hostility." (TR 210) Initially, Complainant called the Santa Fe OSHA office, which referred her to the DOE. When Complainant called DOE, she refused to give her name, although Complainant testified that she did inform the gentleman on the telephone, Mr. Aubrey Flint, that she was the only woman at the job site. She also informed Mr. Flint of all of the concerns she had seen within her first three days of work. Mr. Flint took down the information and informed Complainant that he would pass it along to the appropriate parties. Complainant never heard from Mr. Flint again.

Complainant met Mr. Twite at a restaurant to get her paycheck on Friday, February 28. Mr. Twite informed Complainant that "the Feds were crawling all over his (expletive) and that he was ordered to go back" to the Respondent's headquarters. (TR 212)⁶ Although Complainant could not recall her exact work schedule over the next few days, she testified that "[i]t just seemed to be kind of a pattern with [Respondent] since the more I complained about safety the worse the weather got for me as far as coming to work." (TR 213) Complainant learned that her co- workers had actually worked on the days that she was told not to come in because of inclement weather. Mr. Epperson explained that while some carpenters called ahead and were told not to come in to work, others would present themselves for work and occasionally be allowed to help the laborers with snow removal. (TR 701-702)

On Monday, March 7, Complainant complained to Mr. Herrera, informing him Mr. Twite and Mr. Epperson were abusive to her because of her gender. She also informed Mr. Herrera of how "scary" the job was, specifically listing her safety concerns. (TR 215) Complainant asked Mr. Herrera to find her another job because she wanted to get out of the unsafe site. Mr. Herrera told Complainant he would look into the conditions himself, but Complainant never saw him on the site.

On March 24, Complainant requested that Mr. Epperson make a safe walkway for the workers and Mr. Epperson responded "What are you, a (expletive) or a construction worker?" (TR 222)⁷ Mr. Epperson never accommodated Complainant's safety request and later that day, a worker fell and injured his knee.

On March 26, Complainant was informed upon her arrival at work that Mr. Twite, Mr. Epperson and Mr. Richards had really "gotten into it" and that there had been a fistfight. (TR 228) Complainant also learned that Mr. Richards had quit. At that time,

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she filled out her resignation papers in her own handwriting, identifying poor management and safety as the reasons therefor, and informed the secretary to whom she gave the paper that she did not know what would happen when she went down to speak with Mr. Twite, and that she would return in 15 or 20 minutes to let the secretary know. In the meantime, Complainant informed the secretary, she "wanted to fill out" the resignation papers "and put a red flag out for [Respondent]." (TR 232; 251; 758) Complainant states that she resigned because she knew the stance of Mr. Twite and Mr. Epperson and she did not want it to be on her record that she was fired.

According to Complainant, she went into Mr. Twite's office and asked him if it was true that Mr. Richards had quit. Mr. Twite responded that it was true and asked Complainant if she had a problem with that. Complainant, who was upset that Mr. Richards had quit because he was the workers' "only protection" (TR 266), responded that she did, and Mr. Twite told her "Well, don't let the door hit you in the (expletive) on your way out. Bye." (TR 233)⁸ Complainant then waited outside his office for the escort to come and accompany her off site.

Respondent's Separation Notice, which was produced for admission into evidence in a typewritten format, is dated March 26, 1997 and records that Complainant resigned because of unsafe working conditions and poor management. (RX 1/RX 5/ RX 17) At the bottom of the document, Mr. Chris Callegari, construction manager for the DARHT project, noted that "Ms. McNeal did not reference any specific unsafe working conditions or poor management conditions reasons. She told Allen Twite that she quit because Garry Richards quit the day before." (RX 1/RX 5/RX 17; TR 570)

Complainant went straight to the union hall to file a grievance and eventually spoke with Mr. Herrera, who told Complainant that Mr. Reynolds was the one who would have to file a grievance. Complainant had left the resignation with Mr. Herrera, when it was returned to her it then had the handwriting from Mr. Callegari on it and the secretary's phone number and address were gone. ⁹ Complainant spoke with Mr. Reynolds on April 1 and informed him of what had happened. Mr. Reynolds was "yelling and screaming" and carrying on and on, and finally he told Complainant that he would not file a grievance and he hung up the telephone.¹⁰ (TR 239)On March 31, Complainant called the DOE in Albuquerque and filed her safety concerns.¹¹

Complainant described her efforts to improve safety compliance as an "ongoing battle" or a "constant struggle" because she would start a safety improvement and either Mr. Twite or Mr. Epperson would tell her she was needed at another part of the site. (TR 244) She had never before been met with this kind of reaction at any other jobsite when she complained about safety issues. (TR 266)

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Mr. Charles H. Reynolds, an employee of the New Mexico District Council of Carpenters, oversees the grievance procedures for union members and is unaware of Complainant filing a grievance at any time in February or March 1997. On March 31, 1997, Mr. Reynolds received a telephone call from Complainant, who informed him that she had quit because of the treatment she received from a foreman at the company. (TR 55-56) Complainant also commented that the jobsite was unsafe. Mr. Reynolds informed Complainant that he was sorry that she had quit under those circumstances and that he would have Mr. Herrera check the job for safety. Mr. Reynolds testified that he did not inquire further into the matter because Mr. Herrera informed him that federal agents were shutting down the project. Despite the apparent inconsistency between the federal agents shutting down the site and Mr. Herrera's April 3, 1997 report (RX 7) that safety appeared to be alright, Mr. Reynolds was not concerned about the accuracy of Mr. Herrera's report.

Mr. Marcus L. Hayes, a seven year employee of the DOE, Albuquerque Operations Office in the OSHD, was involved in the inspection of the DARHT project as part of the employee concern evaluation team and played a part in drafting the report admitted into evidence as CX 6. The seven employee concerns addressed in that report were obtained from Complainant during a telephone call on April 1. Mr. Hayes, while testifying as to the results rendered in the DOE report, states that the hand/arm vibration incident should have been reported on the OSHA 200 Form. (TR 101) Mr. Hayes, who has been involved in at least one hundred DOE construction site inspections during his career, testified that he had never previously been involved in an inspection where the entire project was placed on stand down. (TR 105) In regards to the safety issues raised by Complainant, Mr. Hayes testified that hearing protection was a violation of Respondent's corporate procedure, which echoed the requirements of the OSHA standard, so that Respondent was not fully complying with the Federal regulation by deviating from their corporate procedure. (TR 118) He also described Complainant's concerns about impalement hazards as being prohibited by OSHA standard. (TR 125)

Mr. Hayes has not previously seen CX 9, which is a September 26, 1997 letter from the DOE, Albuquerque Operations Office, to Complainant regarding Complainant's April 8 visit to LANL, which resulted in Complainant expressing poor construction quality concerns. The DOE, assisted by an independent structural engineer and the Architect/Engineer responsible for the design of the building, concluded that the DARHT concrete quality is above average. (CX 9) Mr. Tommy W. Sena of the Development Company, a general construction company, was considering hiring Complainant and personally telephoned the Respondent for a reference.¹² (TR 131-132) Mr. Sena, who unsuccessfully tried to contact Mr. Twite, eventually spoke with Mr. Epperson on May 9, 1997. (CX 12) Mr. Epperson informed Mr. Sena that Complainant was a good worker who had one fault. He mentioned that she had a previous injury and had to go to the doctor's quite often. Mr. Epperson also mentioned that Complainant had put Respondent in the newspaper, that she had "'closed [them] down'" and that Mr. Sena may want to consider this information.

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(CX 12) These comments were generally corroborated by Mr. Epperson's testimony. (TR 723) Mr. Sena cannot recall whether or not Complainant had told him that she had closed down Respondent prior to the time that he called for the reference. (TR 138)

Mr. Thomas J. Crespin, a safety engineer for LANL since September 1990 who had his own whistleblower complaint pending against Respondent at the time that he rendered his testimony in this matter, was assigned as the LANL representative at the DARHT site in April 1997. Mr. Crespin authored CX 5, the LANL memorandum finding 32 additional deficiencies in the project, eight of which were determined to be serious according to the OSHA definition. (TR 144) On August 25, 1997, Mr. Crespin was hired by Respondent and continued in its employ through September 19, 1997. While employed by Respondent, Mr. Crespin, who had never personally met Complainant other than on the day of hearing, heard Mr. Twite informing an unidentified person on the telephone not to send him "another [Complainant] because she wasn't worth a (expletive)." (TR 146-147) Mr. Crespin also overheard other vulgar comments by Mr. Epperson about Complainant, all of which Mr. Epperson denied. (TR 147; 722) In Mr. Crespin's opinion, Respondent ran the DARHT project in a safe and effective manner between April and August 25, 1997. (TR 153)

Mr. David Chastain, who has been construction project leader with LANL for thirteen years, was part of the group that met on April 2, 1997 and decided to place the DARHT project in stand down mode. All who were present at the meeting, including Mr. Carothers, agreed that the stand down was the correct course of action.

In July 1997, Respondent submitted a request for contract modification in the amount of an additional $2.8 million based on the additional costs it was incurring as a result of the stand down. (TR 173-174) According to Mr. Chastain, the request for reimbursement from Respondent is not unusual, and he has seen other contractors submit similar requests when the contractor believes it is performing something beyond the terms and conditions of the contract.

Discussion

Not every act of whistleblowing is protected under the ERA simply because the employer holds a license from the NRC. A complainant under the ERA must prove that retaliatory action was taken against him because he engaged in conduct listed in 42 U.S.C. §5851(a)(1), (2) or (3), which the Secretary has interpreted broadly to mean any action or activity related to nuclear safety. Accordingly, in DeCresci v. Lukens Steel Co., 87- ERA-13 (Sec'y 12/16/93), the Secretary dismissed the complaint on the grounds that the complainant failed to engage in protected activity within the realm of the ERA because his complaints rejecting welds on and reporting failure to follow proper procedures in the

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construction of sonarspheres were not related to nuclear or radiation safety. See Also Roberts v. Rivas Environmental Consultants, Inc., 96-CER-1 (ARB 09/17/97) (dismissing complaint because employee raised concerns about occupational safety and health matters, rather than CERCLA protected activities); Tucker v. Morrison & Knudson, 94-CER-1(ARB 02/28/97) (holding that certain safety concerns raised by complainant were not protected by the CERCLA because they did not relate to environmental safety, but rather to occupational safety) (emphasis in original); Smith v. Esicorp, Inc., 93- ERA-16 (Sec'y 03/13/96) (wherein the Secretary found that the complainant engaged in protected activity when he raised, among other things, scaffolding safety complaints concerning standards imposed by the NRC, which standards required heavy-duty seismic built scaffolds that would protect safety related equipment located underneath the protected areas of a plant in the event of an earthquake). The Administrative Review Board has noted that the distinction between complaints about violations of environmental requirements and complaints about violations of occupational safety and health requirements "is not a frivolous one. Worker protection for whistleblowing activities related to occupational safety and health issues is governed by Section 11 of the Occupational and (sic) Safety and Health Act, 29 U.S.C. 651-678 (1988), and enforced in the United States Federal District Courts, not within the Department of Labor's administrative adjudicatory process." Tucker, supra, at p. 4.

Whistleblowers are protected under the ERA to further the Congressional purpose of protecting the public from the hazards of nuclear power and radioactive materials due to unsafe construction or operation of nuclear facilities. By protecting whistleblowers, safety and quality problems in the nuclear industry will continue to be brought to light and resolved before accidents or injury occur. In keeping with the statutory purpose, the whistleblower provision is interpreted broadly to protect internal complaints that are based on reasonably perceived violations of the ERA and its implementing regulations. Keene v. Ebasco Constructors, Inc., 95-ERA-4 (ARB 02/19/97) (holding that complainant engaged in protected activity based on his entirely reasonable belief that procedures governing electrical work on pumps and motors that are essential to fire prevention and the smooth operation of the reactor were regulated by the NRC for the safe operation of the nuclear plant and that a contractor's failure to employ properly certified electricians to perform work on this equipment and concurrent falsification of documents to conceal that failure would be subject to reprimand by the NRC, even though the NRC eventually determined that the issues "were 'not safety-related'"). See Also Macleod v. Los Alamos, 94-CAA-18 (ARB 04/23/97) (finding complainant engaged in protected activity when she raised safety-related complaints regarding the risk of radiation exposure in the event of an accident and the potential for a mishap due to oversized gloves used to handle plutonium).

In the case presently under consideration, it is clear that all of the safety complaints raised by Complainant McNeal were related to occupational safety. The safety issues were identified as the absence of guardrails on elevated working surfaces, exposed rebar without caps, work site cluttered with debris, inadequate fall protection for workers, many damaged harnesses and lanyards and no harnesses at all for some of the workers, scaffolding not up to

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code, no toe boards and faulty equipment, tag lines not used during crane operation, exposed ditches, no warning whistles before explosions were carried out, a need for more ropes for tag lines and for carrying loads up ladders and for more wood for hand railings, use of jack hammers without toe guards, face shields, ear plugs and respiratory protection, failure to tie off when jack hammering was done on elevated work surfaces and no shoring when jack hammering alone in a confined space, and failure to put plywood cut offs on top of rebar mat to create a safe walkway over the mat. (ALJ EX 1) The testimony of Mr. Hayes, as well as that of Mr. Crespin who categorized certain deficiencies as "serious" based upon the OSHA definition of that word, establishes the fact that Complainant's concerns were violations of OSHA standards.

Jurisdiction under the ERA may be established by some nexus between the activity for which protection is claimed and a goal, objective or purpose of the Atomic Energy Act or the chapter of which Section 5851 is a part. See Van Beck v. Daniel Constr. Co., 86-ERA-26 (Sec'y 8/3/93) (finding sufficient evidence of record demonstrating that the employer's retaliatory discharge of complainant based on his concerns about non-nuclear hazards present during the construction phase of a nuclear power plant had a potentially substantial effect on nuclear safety). In his Recommended Decision and Order, the Administrative Law Judge who presided over the Van Beck matter posed the following rhetorical in considering whether or not the complainant's activities were protected within the meaning of the ERA

...what if Complainant's refusal [to work] was motivated by nothing more than fear of climbing up ladders, or by reason of personal antipathy toward the [employee] assigned to work with him - or solely by reason of fear for his own personal safety?

In none of the latter [three] circumstances cited would it appear that jurisdiction would attach. With the first two, the validity of the stated conclusion is obvious. There is no nexus between the source of fear and a goal, objective or purpose of the relevant statutes. The reasons why the personal safety example may fall short of qualification may not be quite so obvious. But where is the necessary connection in such circumstance between the refusal and an objective, goal or purpose of the pertinent statutes? A refusal which has not been shown realistically to involve safety - immediately, ultimately, or potentially - in the operation of a nuclear facility cannot meet the requirements of §5851.

Van Beck, supra (ALJ at p. 16).

Complainant McNeal's safety complaints fit squarely within the personal safety example. Complainant, who testified to the need to watch her back and who testified that she insisted she be taken off the DARHT project because someone was going to get hurt and she did not want it to be her (TR 215-216), was concerned about her own personal safety on the worksite, as well as that of her co-workers. The matters of which she complained concerned

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hazards which had the potential to cause immediate bodily harm to anyone on site, or in Complainant's words "severe injury" (TR 280), and that concern allegedly came to fruition in the case of the gentleman who injured his knee because of the failure to lay rebar mat and the gentleman who sustained injury to his hands because of his jackhammering duties.

The only concern submitted by Complainant which arguably might be able to come within the realm of the ERA, is the concern she raised about the quality of the concrete. Complainant testified her quality concerns were submitted post April 1, 1997 (TR 287) and, consequently, could not have been a motivating factor in the alleged harassment of Complainant during her employ with Respondent or the alleged termination, both of which occurred on or before March 26, 1997.

In regards to Complainant's second complaint which alleges blacklisting, however, it is necessary to conclusively determine whether or not the quality concerns constitute protected activity as defined by the ERA because Complainant raised the concerns on or about April 1, 1997 and the alleged blacklisting did not occur until May 9, 1997.¹³ This Judge concludes that the concrete quality concerns raised by Complainant McNeal are not protected by the ERA. There is simply no evidence regarding whether or not these concrete quality concerns would implicate nuclear safety or the fact that Complainant reasonably believed that the concrete quality presented a nuclear or nuclear-related safety hazard.

This Judge presided over three days of testimony in this matter and is convinced of the genuineness of Complainant McNeal's safety concerns and Respondent's knowledge thereof. The seriousness of the allegations raised cannot be underscored enough or taken lightly. Nevertheless, the ERA is a statute of circumscribed jurisdiction. No matter how credible this Judge found the testimony of Complainant McNeal, I cannot create jurisdiction where none lies and it is my conclusion that this is simply not an Energy Reorganization Act claim.

Conclusion

Based on the foregoing, this Judge recommends that this matter be DISMISSED.

DAVID W. DI NARDI
Administrative Law Judge

Boston, Massachusetts
DWD:jw

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, U.S. Department of Labor, Frances Perkins Building, Room S-4309, 200 Constitution Avenue, N.W., Washington D.C. 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).

[ENDNOTES]

¹The "employee's concerns" are those which were raised by Complainant McNeal.

²A safety stand down mode means that no work can continue other than to correct the safety deficiencies that were observed. (TR 164)

³Complainant testified she was present when Mr. Roy Epperson, Respondent's general foreman on the project, made a comment that Mr. Carothers, who was assigned to DARHT on a part-time basis, did not need to be worried about because the Respondent had him in their "back pocket." (TR 221) Mr. Epperson, however, denied ever having made such a statement. (TR 699)

⁴Mr. Richards denied having so designated Complainant. (TR 439) Mr. Twite and Mr. Epperson testified that Mr. Richards would not have had the authority to so designate Complainant.

⁵Mr. Epperson denied these statements attributed to him by Complainant. (TR 704-705; 713)

⁶Mr. Twite denied having made this statement. (TR 617; 629)

⁷Of course, Mr. Epperson denies making this statement. (TR 713) I will note, however, that the fact that Mr. Twite called Complainant a "troublemaker" on at least one occasion was confirmed by the testimony of Mr. Richards. (TR 458)

⁸Both Mr. Callegari and Mr. Twite testified that Complainant informed Mr. Twite that she would not work at the site if Mr. Richards was not going to work at the site. (TR 571; 649)

⁹Complainant testified that RX 5, which purports to be her resignation, is not the resignation that she submitted to the secretary, Ms. Kristina Horpedahl, although the typewritten form is the exact same wording as she had submitted in handwriting. Mr. Herrera testified that he never saw Complainant's resignation and that no employee of Respondent ever told him that the resignation indicated that Complainant's reasons for leaving were "unsafe working conditions" and "poor management."

¹⁰Mr. Reynolds testified that he does not recall hanging up the telephone on Complainant and does not recall informing her that he would not file a grievance on her behalf.

¹¹There was testimony from Complainant that she telephoned Respondent's headquarters in Kansas City on March 28 (CX 14) and left a message with a woman, identifying herself and her concerns and asking for a return telephone call, which she never received. The telephone number which Complainant dialed, however, was for another company named "Foley," but not the Respondent's company. (TR 322; RX 15)

¹²Mr. Sena and Complainant were friends who would occasionally drink together. (TR 134-135) In fact, Complainant lived in a rented trailer, which was owned by a friend of Mr. Sena. Mr. Sena spoke with Complainant after she quit her position with Respondent, and Complainant told Mr. Sena that she quit because it was an unsafe workplace.

¹³This Judge notes that Complainant's filing of her first ERA complaint could not be a motivating factor behind the blacklisting claim because the first complaint was filed on August 12, 1997 and the alleged blacklisting occurred during conversation on May 9, 1997.