At that
point, Complainant's
refusal to work lost its protected activity status. Pensyl,
supra , at 7. As such, Complainant failed to prove his prima
facie case based upon his refusal to work as a protected
activity. Respondent had no further indication of why
Complainant was still refusing to work, as Complainant did not at
that time state that he wanted to see test results or why he did
not believe Respondent's evaluation of the work area. Had
Complainant inquired further or had he more expertise or
knowledge of contamination prevention or dust detection,
Respondent might have been required to further explain and
[Page 12]
display the safety of Complainant's work area. Absent such
further inquiry, I find Respondent adequately responded to
Complainant's voiced concerns.
2. Reporting Safety Complaints
Complainant also alleges, as a protected activity, that he
was terminated for refusing to work in the condenser bay without
a dust mask because he makes safety complaints (F-75).
Specifically, Complainant noted that he made two safety
complaints prior to his refusal to work on March 25, 1990 (F-68,
F-69). On March 23, 1990, he reported to an HP an exposed pipe
with resulting insulation, which was repaired (F-68, F-162). The
exposed insulation was asbestos, which was removed quickly,
according to Mr. Jankovich (F-162). Complainant also reported a
missing toe board on a scaffold in the "B" box of Complainant's
work area (F-69). According to Complainant, cans of material on
the scaffold could easily roll off the scaffold, without the toe
board, resulting in a hazard to the boilermakers (F-69). The toe
board was replaced that same day (F-69). Complainant opined that
these safety complaints, coupled with his refusal to work,
motivated Respondent to terminate him whereas other employees who
refused work assignments were, according to Complainant, treated
less severely (F-75).
Concerning the adverse action portion of Complainant's prima
facie showing, Respondent stipulated that it took adverse action
in the form of a termination against Complainant, although it
disputes that such action was illegally motivated (Respondent's
post-hearing brief, p. 17 n. 5). In addition to showing that
Respondent took some adverse action against him, Complainant's
evidence must be sufficient to raise the inference that the
likely reason for the adverse action was the protected activity.
Dartey, supra , at 7-8. For the reasons listed hereafter,
Complainant has failed to satisfy this burden.
Complainant did not allege that he received unusual, or
disrespectful treatment when he made the complaints about the
exposed pipe insulation and missing toe board. In fact, these
problems were quickly repaired. It was not until Complainant
refused to work that Respondent showed any level of adverse
action against Complainant.
The only factor weighing in Complainant's favor is the
[Page 13]
timing of the discharge. The discharge took place two days after
Complainant noted the exposed pipe insulation on March 23, 1990.
While such timing does make the termination slightly suspect by
itself, Complainant has not provided any other evidence to
connect the termination with the previous safety complaints.
Complainant's allegations that other workers who refused to work
were treated less harshly are unsupported, and less credible,
assertions to which I assign no weight. Complainant has not
offered evidence which would tend to prove that any other workers
refusing to accept a work assignment under similar conditions
were treated any more favorably than he. Respondent, on the
other hand, has provided a list prepared by its personnel which
outlines other workers who have been discharged for refusing work
assignments (Rx-19, F-106, F-108, F-109). While this list does
not disprove Complainant's assertions (as it is unclear whether
the list includes all employees who refused to work or just those
who were terminated for such refusal), Respondent does not bear
the burden of proving the causal relationship between
Complainant's activities and his termination. The testimony of
Mr. South and Mr. Thurmond establishes that Complainant was
terminated only for his refusal to work. In addition, Respondent
went to significant lengths to investigate, and explain the
safety of the work area to Complainant. Respondent gave
Complainant opportunities to change his mind concerning his
refusal to work, and the ultimate decision of whether to work
remained with Complainant. I find that Complainant's reports to
safety personnel concerning the exposed pipe insulation and
missing toe board played no part in Respondent's actions against
him. Complainant was discharged entirely because he improperly
refused a work assignment. Further, according to Respondent's
own work rules of which Complainant was aware, there were no
other alternatives available for an employee who unjustifiably
refuses a work assignment. Complainant has offered no probative
or reliable evidence tending to prove that his participation in
reporting the exposed pipe insulation or the missing toe board
caused him to be treated even minimally less favorably by
Respondent. Therefore, Complainant has failed to meet his burden
of proof, and has thus failed to establish his prima facie case.
Lopez v. West Texas Utilities , 86-ERA-25 (Decision and order of
the Secretary of Labor, July 26, 1988); Dartey, supra .
A failure to prove any prong of the prima facie case results
in dismissal of the underlying claim. As the prong concerning
[Page 14]
whether the adverse action had some causal relation to the
alleged protected activity is dispositive of whether Complainant
has proven his prima facie case, I will not address the other two
prongs. Specifically, I need not decide whether Complainant
engaged in protected activity by reporting the safety problem, or
whether Respondent was aware of these complaints.
As Complainant has failed to prove a prima facie case by,
either of the above alleged protected activities, it is
recommended that this matter be dismissed.
RECOMMENDED ORDER
It is recommended that the complaint of Robert F. Stockdill
be DISMISSED.
JAMES GUILL
Associate Chief Judge
APPENDIX
A. BACKGROUND
a. Complainant
1. Complainant worked as a boilermaker for 20 years, and had
prior jobs at a steel mill, with ironworkers, and as a book
salesman (Tr. 92).
2. The parties stipulated that Complainant was employed as a
boilermaker by Respondent, Catalytic Industrial Maintenance, Inc.
(CIMCO), at Plant Hatch on March 25, 1990, the date of the
alleged violation of the Act (Tr. 13-14) and had been since
January of 1990 (Tr. 14).
3. The parties stipulated that Complainant, Robert P. Stockdill,
Sr., filed his complaint on April 13, 1990 and request for
hearing on May 22, 1990 (Tr. 16, 17).
4. Complainant testified that he has also filed a complaint
concerning his termination under the occupational and Safety
Hazards Act (Tr. 27).
b. Witnesses
5. Thomas Hart is a Site Superintendent for CIMCO at the Edwin
I. Hatch nuclear plant. Mr. Hart has worked in nuclear
maintenance for approximately 14 to 15 years (Tr. 112). As site
superintendent, Mr. Hart is the highest management official for
Respondent at Plant Hatch (Tr. 156). Mr. Hart supervises other
areas in addition to the condenser bay (Tr. 156). Respondent,
CIMCO, was a subcontractor for Georgia Power Company, which was
the operator at Plant Edwin I. Hatch (the nuclear power plant)
(Tr. 11).
6. Lannie South is a superintendent for Respondent CIMCO and has
held that position for nine years (Tr. 243).
7. Mr. Roger Zavadoski is the Manager of Health Physics and
Chemistry at the Plant (Tr. 377). He has held that position for
approximately seven years (Tr. 377). Mr. Zavadoski holds a
bachelor of chemical engineering degree and a PhD in Chemical and
Nuclear Engineering. In total, he has approximately 20 years of
experience in commercial nuclear power plants, including nine
years of experience with the Atomic Energy Commission and Nuclear
Regulatory Commission (Tr. 378). Mr. Zavadoski supervises 90
various workers involved with health physics (Tr. 386).
8. Wesley Purvis is employed by Georgia Power as the Health
Physics Foreman for the condenser bay area (Tr. 182). Mr. Purvis
worked the day that Complainant was discharged (Tr. 182). Mr.
Purvis supervised Mr. Jankovich (Tr. 316).
9. Arthur Jankovich has been a health physics (HP) technician
for approximately 11 years (nine of those years as a senior HP)
at various power plants, and worked at Plant Hatch during the
week when Complainant was terminated (Tr. 271). Mr. Jankovich
was employed by Applied Radiological Controls (ARC) and was
assigned to the health physics department at Georgia Power,
although he no longer works at Plant Hatch (Tr. 315). Mr.
Jankovich said her is concerned with employment possibilities
because he testified at the hearing and because of his union
activities (Tr. 405).
10. Samuel Thurmond is a safety engineer and asbestos supervisor
for Respondent, and has held that position for 12 years (Tr.
327). Mr. Thurmond also served as the asbestos supervisor for
the past eight years (Tr. 327). Mr. Thurmond is EPA certified
and licensed by the State of Georgia to do asbestos removal.
C. THE WORK AREA
a. Condenser Bay Area
11. The area where Complainant worked is a condenser bay,
located beneath the main turbines in the turbine building at
Plant Hatch (Tr. 113). Complainant had worked on this particular
job, of pulling tubes, for approximately 3 or 4 days.
Complainant had also worked in that area during other jobs (Tr.
80).
12. The work area, including the four boxes, was approximately
fifty feet wide by approximately sixty or seventy feet long (Tr.
354).
13. In the condenser bay (conbay) where Complainant worked,
there are two condensers, with four water boxes (four inlet boxes
and four outlet boxes). A condenser tube cools down water after
it comes out of the steam turbines (Tr. 82). The condensers turn
the steam from the turbine back into water so that it can be
recirculated through the plant and processed into steam again
(Tr. 113). These boxes, or work areas, were labelled "A," "B,"
"C" and "D". Rx-1 is a picture of the check-in desk and access
control point to the condenser area (Tr. 114).
b. Pulling Tubes
14. The pulling of tubes is the removal of tubes from the
condenser (Tr. 77). Tubes were pulled at a rate of approximately
15 to 20 at a time (Tr. 78). Rx-4 is a picture of boilermakers,
hooking a cable to tubes in the process of pulling tubes out of
the water box. (Tr. 116). Rx-5 is a picture of a boilermaker at
the tubes, attaching a pulling device to the tubes (Tr. 117).
15. The parties stipulated that Complainant's duties included
assisting in the process of removing tubes located in the
condenser bay (Tr. 14). This replacement took between two and
three months to complete (Tr. 80).
16. The tubes are approximately 40 feet long. There are
approximately 10,000 tubes per water box, 40,000 total in the
condenser (Tr. 117). Each tube is approximately three-quarters
of an inch in diameter (Tr. 77).
c. Workers
17. Removing tubes involves different workers. One group pulled
tubes. Another group wrapped the tubes and removed them.
18. Workers were constantly cleaning the platform in the
condenser bay area (Tr. 122). Laborers stripped the platform
approximately twice a shift, removed the "A" cloth and put down a
new "A" cloth due to the amount of water used to wetten tubes
(Tr. 123). An "A" cloth is a heavy plastic or paper used to
cover areas, prevent contamination and collect moisture (Tr.
123).
19. Fifteen laborers were assigned to clean the condenser bay
area on the day shift, and ten on the second shift (Tr. 142-43).
Four laborers were assigned to the scaffold (Tr. 143). Mr. Hart
was not certain whether it was laborers, or carpenters, who
cleaned the "A" cloth approximately twice during a shift (Tr.
143). Platforms' "A" cloths were changed at different times (Tr.
145).
20. Mr. Jankovich testified that he had seen laborers cleaning
up the condenser bay area when he requested them, and on other
limited occasions (Tr. 281). The laborers did not remain in the
area during the entire pulling operation (Tr. 281). Laborers
were responsible for removing the 'Al cloth from the platform
(Tr. 282).
d. Shifts
21. Boilermakers worked on each hole shot between sixty and
ninety minutes (Tr. 78). These shifts were maintained because
the work area was very hot (Tr. 78). The heat factor was also
affected by the protective clothing (cotton clothing, nylon
apron, rubber gloves and boots, and a hard hat) which some
workers had to wear (Tr. 79). These short shifts reduced the
amount of accumulated exposure to allegedly meet Federal
guidelines (Tr. 78-79, 122-23).
22. Boilermakers were able to pull tubes approximately three or
four times during a shift (Tr. 139). It took longer to remove
the tubes from the area than it did to pull them from the
condenser (Tr. 139).
e. Complainant's work
23. Complainant, the worker nearest the tube sheet panel,
attached a rope around the tubes to prevent them from bouncing or
separating from the bundle of tubes as they were pulled out (Tr.
77).
24. Complainant did not perform the type of work pictured in Rx-
7. That work involved putting the tubes back in the condenser,
which occurred after Mr. Stockdill was terminated (Tr. 136).
25. Mr. Hart first stated that the tubes were pulled in a
downward progression (Tr. 178). Later he acknowledged that the
tubes must have been pulled by an upward progression, as the
scaffolding was raised during the process (Tr. 178). Tubes were
then replaced from the top downward (Tr. 178-79).
f. Work Platforms
26. Complainant worked with a group of boilermakers assigned to
pull tubes from the condenser in "A" box (Tr. 113). There were
four boxes, as work areas, in the conbay. The picture labelled
Rx-6 shows boilermakers on several platforms pulling tubes (Tr.
117).
27. Workers at the "A" and "B" platforms would not receive
higher levels of radiation if they worked close to the sheets,
due to the low level of radiation at those platforms, according
to Mr. Purvis (Tr. 230). Tests which Mr. Purvis performed
indicated that dose rates at the "A" and "B" platforms were
approximately one tenth of the rates at the "D" platform (Tr.
230-31). Cx-5 is a picture of "A" and "B" boxes, undraped as
they were not radiologically hot, according to Complainant (Tr.
51).
28. Complainant did not work in "D" box (Tr. 71).
29. Rx-2 is a picture of the work platform in front of the
condenser, identified by Mr. Hart, showing where tubes had been
removed from "B" box (Tr. 114-15). Mr. Hart subsequently stated
that the tubes in the upper portion of Rx-2 did not appear to
have been removed (Tr. 134).
30. According to Mr. Hart, the tubes in D box were more
contaminated than tubes from the other boxes (Tr. 171). As a
result, only small sections of tubes were pulled at one time from
that box (Tr. 171). Cx-2 shows plastic sheets lining "D" box
(Tr. 42-43). Cx-4 is another picture of D box with its plastic
draping (Tr. 49-50).
31. According to Mr. Thurmond, the draping between boxes was to
prevent splashing, not dust, as he was not aware of dust in that
area (Tr. 354).
32. According to 14r. Hart, Cx-2 represents "D" box (Tr. 168).
Mr. Hart explained that one worker in that picture is using a tag
line to control tubes (Tr. 169). The workers are hoisting,
rather than pulling, tubes in that picture (Tr. 170). Herculite
(the plastic sheets) is covering most of the work area, except
where the tubes are being pulled from (Tr. 170).
33. Mr. Hart testified that there is generally localized
contamination on the tubes (Tr. 113).
g. Wetting Down Tubes
34. While the condenser is operating, running water cools the
tubes and steam results around the outside of the tubes (Tr.
164). No water had run over the tubes, in that process, since
February 18 (Tr. 164). Approximately a month passed without
water being run over the tubes, prior to the wetting process
during pulling (Tr. 165).
35. Mr. Purvis identified the discolored material on the
condenser tube, in Cx-3, as an oxide layer on the tubing. The
shinier material on the tubes is where the tube was cut (Tr.
213).
36. Each condenser has water boxes which were replaced by pumps
that wetten the tubes for pulling. Mr. Jankovich testified that
the system used to wet down tubes was a long pipe which was
connected to a water hose (Tr. 272). Water is pumped from the
bottom of the condenser, sprayed on the top of the tubes, and
then filtered down the tubes as they are pulled out. This
wetness lubricates the tubes and keeps airborne contamination,
such as dust from the tubes, from being released (Tr. 126, 157).
The wetness would not have any effect on radiation (Tr. 158-59).
37. Wetting the tubes allowed the workers to work without
respirators during much of the tube removal (Tr. 173).
38. If any tubes were pulled out dry, the pulling operations
were postponed until the tubes were positioned to be wettened,
according to Mr. Jankovich (Tr. 272).
h. Protective Clothing and Ventilation
39. Rx-3 displays boilermakers putting on plastics which go over
the protective clothing, and wearing face shields (Tr. 116). Mr.
Hart noted that the aprons were probably made from nylon, rather
than plastic (Tr. 135).
40. Radiation results in the emission of radioactive waves,
because of atom disintegration (Tr. 174). Contamination includes
gases or particles of material which are radioactive (Tr. 174).
Protective clothing is used to protect workers from
contamination, not radiation (Tr. 174, 207).
41. The purpose of the face shield is to prevent water vapor
from going into the workers' faces. The face shield also
prevents workers from touching their gloved hands to their face
(Tr. 116).
42. Rx-8 depicts a bundle of tubes being transferred as part of
their removal from the work platform (Tr. 119). The workers are
wearing face shields, plastics and taping (Tr. 120).
43. Complainant would have been required to wear the face
shield, according to Mr. Hart, while working in the condenser
area (Tr. 120). Complainant also was required to wear PC's,
plastic aprons and gloves (Tr. 120).
44. According to Mr. Hart, the plastic shield face mask prevents
workers from touching their hands to their face and possibly
spreading contamination from their gloves (Tr. 137). The plastic
shield face mask also protects workers when they are using
aquipment, such as when they are sawing tubes (Tr. 137).
45. In Rx-7, although all workers are in radiologically
controlled areas, one is a clean area and one is a potentially
contaminated area. Rx-7 shows, according to Mr. Hart, that
workers can be in close proximity to one another, and may still
require different protection (Tr. 118). This is because
radiation only eminates a certain distance. (Tr. 159).
46. Rx-9 shows workers hoisting a bundle of tubes. The workers
close to this work are dressed in plastics, except for an
observer which is out of the work area (Tr. 120-21).
47. There can be a health hazard involved from radiation,
according to Mr. Purvis (Tr. 207).
48. Radiation exposure is measured by the amount of accumulated
exposure a worker can receive in a given time, not by the dose
rate itself (Tr. 215). The dose rate of radiation drops off as
distance from the radioactive matieral increases (Tr. 216).
49. Respirators were always required when workers pulled
stainless steel tubes (Tr. 220). Otherwise, respirators were
only required if there was a potential for airborne hazard (Tr.
220).
50. The parties stipulated that Complainant worked pursuant to a
Radiation Work Permit (RWP) authorization (Tr. 15). The
Radiation Work Permit for the specific project determines what
types of protective clothing is to be worn by workers in the area
under the RWP (Tr. 383).
51. According to Mr. Jankovich, stainless steel tubes were
pulled by workers who wore respirators (Tr. 299). Mr. Jankovich
was not involved with any stainless steel tube pulling (Tr. 299).
Mr. Jankovich was not aware whether any workers assigned to
Complainant's RWP pulled stainless steel tubes, as he did not
work on that RWP (Tr. 300).
52. Mr. Zavadoski testified that the RWP governing the tube
removal in the condenser bay area required respirators for
stainless steel tube pulling (Tr. 384).
53. According to Mr. Jankovich, workers who were not qualified
for a respirator could not wear them, and the decision as to
whether a worker could wear a respirator ultimately lay with the
HP foreman (Tr. 317, 318).
54. Mr. Hart said the condenser bay area is relatively clean and
cool, and has an exhaust system which removes and circulates air
in the area (Tr. 122). The condenser bay has a negative air
ventilation system (Tr. 125). The negative air ventilation
system exhausts more air than it pulls in. The system makes the
air cooler than some other areas in the plant (Tr. 125).
i. Health Physics
55. Health Physics workers, or HP's, were constantly on the
platform while the tubes were being pulled and replaced,
according to Mr. Hart (Tr. 118).
56. Most HPs work for Georgia Power. A subcontractor, ARC, also
provides additional health physics technicians at Plant Hatch
(Tr. 136).
57. HP's determine the areas where workers must wear
respirators, when protective clothing is worn, and other
precautions (Tr. 119). Mr. Jankovich testified that one of the
duties of an HP is to make sure that, if tubes came out dry,
operations were stopped until the tubes could be wettened (Tr.
272).
58. As an HP, Mr. Jankovich had the authority to stop the work
if a situation was deemed hazardous enough (Tr. 315). Mr.
Jankovich also had the authority to report all other hazards (Tr.
315).
59. Rx-7 depicts boilermakers installing new tubes in the
condenser. To the left of the tape in the picture, the workers
in street clothes are HP's (Tr. 117-18).
j. Radiation Meter
60. Cx-3 is a picture of a monitor near a water box in "D" box
(Tr. 49). The Eberline meter is near the brass tubes, according
to Complainant.
61. The hand-held meter is called a frisker, which is used to
locally measure radiation (Tr. 161). An HP uses the frisker
before, and during, the pulling of tubes (Tr. 162).
62. Mr. Purvis identified the instrument, in Cx-3, as an
Eberline R02A (Tr. 195). The meter measures a dose rate, or rate
of radiation per a unit of time (Tr. 195-96). These hand held
meters are used at some other nuclear plants as well (Tr. 198).
63. The meter measures radiation, and not contamination (Tr.
196). Mr. Purvis indicated that he could not tell what reading
the meter was giving, but stated that if the switch was pointed
toward a battery check the meter would give indicate the high
reading which it showed in the picture (Tr. 196). Mr. Purvis
also stated that, as the meter was located near the condenser
tubes, the radiation possibly indicated is not an unusual health
hazard (Tr. 198).
64. Mr. Hart stated it would be difficult to ascertain what the
frisker in Complainant's picture was reading (Tr. 162, 168).
65. The dial selector switch on the meter does not require the
operator to hold it at the battery check position, as it does not
return to the off position on its own (Tr. 204-05).
k. Work Procedures
66. Rx-10 is a copy of the General Maintenance Procedure,
Maintenance Housekeeping and Tool Control, which includes the
housekeeping procedures governing the work on the condenser and
pulling of the tubes in general (Tr. 124). The procedures are
reviewed with each individual who works in the condenser bay,
according to Mr. Hart (Tr. 124). Every employee is expected to
follow these procedures (Tr. 124).
67. Each employee who works at Plant Hatch receives formal
training, which includes general employee training, respiratory
training, emergency disaster training and security training (Tr.
128). Mr. Hart stated that Complainant received such training in
a one-day period (Tr. 128).
C. EVENTS LEADING TO COMPLAINANT'S DISCHARGE
a. Complainant's testimony
68. Complainant testified that on March 23, 1990, he asked that
a pipe with exposed insulation be covered (Tr. 24). Complainant
said he thought it looked like asbestos insulation (Tr. 24).
Complainant explained that he did not have "concrete" knowledge
whether the insulation was asbestos (Tr. 35). Cx-6 is a picture
of the pipe and asbestos insulation Complainant noted to an HP
(Tr. 56).
69. Complainant testified that he observed a missing toe board
on a scaffold in "B" box (Tr. 24). As a result of this missing
toe board, cans on the scaffold fell over and rolled off,
according to Complainant (Tr. 25). Complainant stated that a
Health Physic (an HP) was standing nearby after Complainant
reported the toe board problem, and later that day the toe board
was replaced (Tr. 25).
70. Complainant testified that on March 24, 1990, he noticed
that his throat was becoming scratchy and his nose dried out (Tr.
25). That same day, Complainant waved his hand in the air and
could see dust particles and fibers up to a quarter inch long
(Tr. 25). Complainant testified that he requested an HP to stop
the pulling because dry tubes were pulled on March 24, 1990 (Tr.
85, 88). After asking Alfred McDonald, his foreman, if he could
wear a dust mask, Complainant was told he could only wear a
respirator as dust masks were not approved for use (Tr. 25).
71. On March 25, 1990, while dressing out for work, Complainant
requested a respirator at the sign-in desk (Tr. 25). Complainant
testified that he was told that he wasn't qualified to wear a
respirator, at which point Complainant requested if he could wear
a dust mask (Tr. 25-26). Complainant stated that he was told by
a technician that he could wear a dust mask, and that the
technician gave him a dust mask and an extra for anyone who
requested it (Tr. 26).
72. Complainant stated that it was speculation on his part,
beyond his viewing of floating dust particles, that there was
airborne radiological contanimation, and that the only knowledge
he had of radiological contamination control was gained through
classes at work (Tr. 93).
73. After Complainant received the dust mask, he proceeded to
the HP conbay desk. The HP, Mr. Purvis, asked who authorized the
wearing of a dust mask within the RWP (Tr. 26). Complainant was
told by the HP to wait until the HP could verify whether
Complainant could wear the mask (Tr. 26). Complainant testified
that there was an open box of dust masks in the HP's office.
74. Later, on March 25, 1990, Complainant told Mr. Thurmond that
dry tubes had been pulled on March 24 and that he wanted to wear
a mask or respirator (Tr. 88). Complainant stated that Mr.
Thurmond and Mr. Purvis told him they thought the area was safe,
and that the particles were "just nuisance dust" so that a
respirator or dust mask were not necessary (Tr. 90).
75. Complainant testified that he was told by Bill Burton
(otherwise unidentified) that dust masks were used on the
previous night shift by some of the men, including use by Larry
Hardigree (also unidentified) (Tr. 26). Complainant also
testified that Mr. Burton told him that men were required to use
respirators, double PC's and plastics on the night shift. As
some of the men were not respirator qualified, Complainant
testified that Mr. Burton told him three workers were transferred
to another crew to load out tubes while respirator-qualifed
workers pulled the tubes (Tr. 27). Complainant argued that he
should have received the same treatment, rather than being fired
(Tr. 27). Complainant alleges the treatment he received was due
to his safety complaints (Tr. 27).
76. Complainant had not reported to his work station when he
arrived at the HP desk with the dust mask on, but said he could
see the work area from the conbay check-in desk (Tr. 71, 83). He
maintains that he was "going by what happened the day before,"
concerning what he had heard about the previous day's pulling of
tubes, when he arrived with the dust mask (Tr. 72).
77. Complainant did not recall being told by either Mr. Thurmond
or Mr. Purvis on March 25, 1990, that they had done any air
samples or had gone to the conbay to inspect it, but that an HP,
Mr. Jankovich, told him more about it a day or two later (Tr.
90). Complainant testified that Mr. Jankovich told him routine
air samples were taken approximately 15 feet from tube sheets,
but Complainant didn't know if air samples were taken within his
"immediate breathing zone" (Tr. 28).
78. Complainant testified that Mr. Burton was told that a senior
HP was informed by the "company" that if wearing respirators was
a "close call" the men should be allowed to work without them so
that the work would get finished (Tr. 26-27).
79. Complainant explained that, after the HP questioned his
wearing a dust mask, he was told by a CIMCO safety
representative, Sam Thurmond, to return to the boilermakers'
change shack and await instructions while Mr. Thurmond and Mr.
Purvis checked things out (Tr. 28, 86). Complainant was not
aware whether they checked out the Conbay area on their way back
from their offices (Tr. 87).
80. Complainant said the foreman, Alfred McDonald, in the
presence of an unidentified boilermaker steward, asked if he
would go into the conbay "on the next hole shot" (Tr. 29, 84).
Complainant asked if he could go in with a dust mask and was told
"no" (Tr. 29). The foreman asked the boilermaker steward to talk
to Complainant. According to Complainant, the steward told him
that CIMCO would fire him if he refused to go into the work area
(Tr. 29).
81. Complainant testified that he refused to go to the work area
because of his belief that there was radiologically contaminated
dust in the air and that workers were pulling dry tubes (Tr. 84).
It is not unusual for condenser tubes to have radiation,
according to Complainant (Tr. 69). The radiation on the tubes
itself was considered a possible health hazard by Complainant,
and especially so if they were pulled out dry (Tr. 69).
Complainant's concern was that airborne contamination could come
from "D" box over into "A," "B," and "C" boxes
(Tr. 71).
82. As neither Mr. Purvis nor Mr. Thurmond provided Complainant
with any written data or test results, Complainant testified they
had not convinced him that the work area was safe (Tr. 85-86).
83. Complainant stated that he did not believe it was possible
to keep radiological contamination from being airborne around
boxes "A," "B," and "C" (Tr. 31).
84. Complainant testified that some tubes were pulled out dry
(Tr. 28). He claimed that, specifically on March 24, 1990, tubes
came out dry (Tr. 37). Complainant alleged that air samples were
not taken where he worked, immediately adjacent to the tube
sheet. He also stated that air samples were not taken when tubes
were pulled out dry on March 24, 1990 (Tr. 37).
85. According to Complainant, sheets of plastic approximately
five feet high were used to make a wall between certain boxes,
where tubes were pulled (Tr. 36). "D" box was where Complainant
was concerned that there was a "highly reasonable chance" that
dust might become radiologically contaminated and be carried over
the plastic sheets to other work areas (Tr. 38).
86. Complainant testified that after his refusal to work without
a mask, the steward took him to have his exit interview and other
final procedures (Tr. 29). No airborne contamination showed in
exit body count tests performed on Complainant (Tr. 93).
87. Complainant testified that Mr. Burton told him that some
workers who pulled the brass tubes were noticing red dust or
blood when they blew their noses. Complainant also testified
that he had blood in his mucus (Tr. 30). Complainant was sick
for two days after his termination (Tr. 36).
88. Complainant stated that he heard from Charles Gillman,
presumably another boilermaker, that workers wore double PC's,
plastics and respirators on the morning of March 26, 1990, the
date following his termination (Tr. 30). Complainant was also
told that, in the fall of 1989 during the last retubing, workers
were dressed in double PCs and plastics (Tr. 38).
89. Complainant has been treated for bronchitis several times
(Tr. 34). One of these treatments he relates to an on-the-job
exposure to fiberglass and dust in the air with a previous
employer (Tr- 34-35). After that exposure, the previous employer
instructed employees to wear dust masks or respirators (Tr. 35).
90. Complainant also alleged that his termination was
unjustified because he was not shown any data of air sample test
results when he questioned the presence of dust (Tr. 37, 72, 75).
Complainant also noted there was a "breakdown of reliability of
the HPs" due to an alleged pending unionization and strike (Tr.
37).
91. Complainant received training for working within a nuclear
power plant, and specifically received the work rules to work at
Plant Hatch (Tr. 73). He was aware that if he unjustifiably
refused to go to an assigned work location, that he could be
terminated and then eligible for rehire (Tr. 73).
92. Complainant was not aware of any work rule which provides
for sending employees to another location if they refuse to work
in their assigned location (Tr. 74). However, he alleged that
other workers were transferred in situations similar to his (Tr.
76).
93. Complainant testified that his termination, on March 25,
1990, "was unwarranted and due to a safety-related matter that
should have been handled in a much different manner" (Tr. 24).
Complainant alleged that the termination displayed Respondent's
animus for Complainant's voicing of safety concerns (Tr. 24).
b. Mr. Hart's testimony
94. In general, when the workers were pulling tubes, Mr. Hart
testified that he went to the condenser bay, or directly above
it, approximately three or four times a day (Tr. 121-22).
Usually, he checked the area twice in the morning and twice in
the afternoon during the workers, twelve-hour shifts (Tr. 140).
Sometimes he checked the area when workers were pulling tubes,
and at other times workers were loading tubes (Tr. 156).
95. Mr. Hart said the health physics department makes air
samples at least three or four times during a shift to test for
radioactive material (Tr. 160). Later in the hearing, Mr. Hart
stated that he was uncertain how many times in a shift air
samples were taken (Tr. 180). It is Georgia Power's
responsibility, according to Mr. Hart, to monitor air samples
(Tr. 160).
96. Mr. Hart stated that he had not seen, nor heard about tubes
being pulled dry (Tr. 138). Mr. Hart also stated that if a tube
was pulled out dry, the pulling operation would be shut down and
the pumps would be readjusted (Tr. 141). There are also
sprinklers on the platform which could wet down a section of a
tube which came out dry or which was being sawed (Tr. 141, 157).
No one worker was assigned to wet down the tubes.
97. Mr. Hart felt that the removal of tubes from the condenser
was not rushed (Tr. 146).
98. If a pump malfunctioned, a tube could be pulled out dry,
according to Mr. Hart (Tr. 165).
99. Mr. Hart stated that there have been problems, "from time to
time," with the pumps which placed water on the tubes during
pulling (Tr. 138). Certain boilermakers were assigned to fix
these pumps and adjust the sprinklers (Tr. 138).
100. Water from the pumps was occasionally relocated (Tr. 176-
77). Mr. Hart stated that if tubes had been pulled during this
time, they would have come out dry or damp (Tr. 177). The
location of the spray was also periodically adjusted, to
adequately wet the tubes (Tr. 177).
101. The exhaust system did break down and was out of service
for several days for maintenance work during a period of outage
prior to Complainant's discharge (Tr. 137). As there are two
exhaust units, Mr. Hart did not remember anything else being gone
to exhaust the air (Tr. 138).
102. Mr. Hart believed that the Herculite, or plastic draping
between boxes, would prevent loose contamination, or splashing
water, from going into another work area (Tr. 171).
103. Also shown in Cx-3, with the frisker, is a material which
appeared to Mr. Hart to be rust on the tubes (Tr. 166). Mr. Hart
stated that the material was a stain or rust, not a loose
particle (Tr. 167). Later in the hearing, after Mr. Hart stated
that brass could not rust, he called the material condensate
which could easily be scraped off while the tubes were being
pulled (Tr. 176).
104. Rx-18 is CIMCO's work rules for Plant Hatch (Tr. 131). On
page 2, category 2, is the work rule which applied to
Complainant's termination (refusal to work provision) (Tr. 132).
Mr. Stockdill received a copy of these work rules.
105. Respondent incorporated Georgia Power's work rules within
its own work rules, and extended them to a degree (Tr. 153). The
rule concerning termination, for refusal to work, is one of
Respondent's rules (Tr. 154).
106. Mr. Hart stated that, by procedure, an employee who refuses
a work assignment without justification is terminated for 30 days
on the first offense (Tr. 128). Mr. Hart noted that at least six
other employees were terminated for refusing to work since
January 2, 1990 (Tr. 128). Such employees, including
Complainant, are eligible for rehire after one month (Tr. 129).
107. Although there is no set time or procedure used when an
employee refuses to work in a certain area, Mr. Hart said the
employee is allowed to give his reasons and talk to his union
steward (Tr. 150). The rules which apply to refusals to work
were negotiated with the various trades (Tr. 151).
108. Rx-19 is a list of other personnel who have been terminated
for refusing a work assignment at Plant Hatch since January 1,
1990. Including Complainant, there are seven people on the
document (Tr. 130). All of the persons on the list, according to
Mr. Hart, were treated the same (Tr. 130-31).
109. Mr. Hart did not recall the circumstances which caused the
various employees, listed on Rx-19, to refuse to work (Tr. 152).
110. Complainant would be eligible for rehire if he was referred
by the union hall for any boilermaker openings Respondent had
available, according to Mr. Hart (Tr. 151).
111. According to Mr. Hart's testimony, the complaint concerning
airborne contaminants and dust, filed with the U.S. Department of
Labor, was investigated by Conan Pinkstaff of the Department of
Labor (Tr. 127). 14r. Hart testified that Mr. Pinkstaff
investigated the situation and found that the area was safe for a
reasonable man to work in (Tr. 127). According to Mr. Hart, Mr.
Pinkstaff interviewed Lannie South, Mr. Thurmond, Mr. Zavadoski
(the manager of health physics at Plant Hatch), Mr. Purvis,
Charles McDonald and a few other boilermakers (Tr. 127, 148).
Mr. Pinkstaff did not interview the workers at Plant Hatch, but
conducted his investigation over the telephone, Mr. Hart
explained (Tr. 147).
c. Mr. Purvis' testimony
112. Mr. Purvis stated that, on March 25, 1990, Complainant was
brought to his office by one of the technicians, and that
Complainant asked if he could wear the dust mask in condenser bay
area (Tr. 183).
113. Mr. Purvis did not know Complainant before he came to his
office on March 25, 1990 (Tr. 224).
114. Mr. Purvis stated that Complainant had not gone into the
work area, but only went to the control point where his
technician was located (Tr. 183). The control point is
approximately 25 feet from the work area (Tr. 183-84).
115. Mr. Purvis explained that it is against Georgia Power's
company policy for a worker to wear a dust mask in a
radiologically controlled area. Due to the danger of transferred
contamination from a gloved hand to the face, Mr. Purvis said
dust masks are not allowed in that area (Tr. 184).
116. Upon receiving Complainant's concerns on March 25, 1990,
Mr. Purvis said he called his control point to check whether
there had been any radiological problems. He said he had that
morning looked over the test results from the previous shift
before Complainant requested the dust mask (Tr. 184-85, 91). The
air surveys, according to Mr. Purvis, did not require the wearing
of respiratory protection (Tr. 185).
117. Rx-11 includes air sample test results obtained at Plant
Hatch (Tr. 187). The results in the center of the sheets, from
the turbine building at 130 elevation, represent those tests
performed at the conbay pulling platform (Tr. 187). Grab samples
are measured at 85 liters per minute, while the flow rate for
low-vol samples is 37.05 (Tr. 189). Mr. Purvis stated that these
test results were below the limits which require respiratory
protection (Tr. 187). Also within Rx-11 are the results of smear
survey tests (Tr. 189).
118. On Rx-11, where air sample readings are given under the
label "activity," those readings determine the level of
contamination and radiation (Tr. 235). For airborne radiological
concerns, reference is made to the "total" block under MPC
readings (Tr. 235-36). Mr. Purvis testified that none of the
readings in Rx-11 indicated a radiological danger. (Tr. 236).
119. As foreman, Mr. Purvis recorded air sample results in his
log book (Tr. 199). Mr. Purvis did not perform the tests himself
on March 25, 1990, although he has taken air samples at other
times (Tr. 199). Mr. Purvis had no firsthand knowledge of the
tests performed on March 25, 1990, except for the test results he
obtained (Tr. 201).
120. Mr. Purvis testified that he told Complainant there was no
radiological airborne problem (Tr. 191). Mr. Purvis testified
that Complainant appeared satisfied that there was not
radiological airborne problem (7r. 191). To Mr. Purvis,
Complainant's concerns regarding the dust was separate from his
concerns over radiological conditions (Tr. 192).
121. Mr. Purvis testified that on March 25, 1990, he explained
the air sample results to Complainant (Tr. 203).
122. Mr. Purvis testified that he did not show the results,
located in Rx-11, to Complainant on March 25, 1990, because
Complainant did not ask to see them (Tr. 203). If Complainant
had asked to see the written test results, Mr. Purvis testified
that he would have shown them to Complainant (Tr. 203).
123. After Mr. Purvis told Complainant there was no radiological
airborne problem, Mr. Purvis said Complainant mentioned a
bronchitis condition which the dust aggravated (Tr. 191).
Complainant told Mr. Purvis that he had seen dust and fiber in
the air on the previous day in the condenser bay platform area
(Tr. 192). Mr. Purvis then explained to Complainant the problems
associated with wearing a dust mask (Tr. 191-92). In specific,
Mr. Purvis told Complainant that due to the loose-fitting nature
of the mask, there is a possibility that a worker will attempt to
adjust the mask with contaminated gloves (Tr. 192).
124. Mr. Purvis testified that the face shields would not
prevent a worker from adjusting a dust mask, as the shield is
retractable (Tr. 218).
125. The dust mask also has a tendency to move on a worker's
face, according to Mr. Purvis (Tr. 218).
126. Mr. Purvis did not know who set the policy that workers in
a radiologically controlled area could not wear dust masks (Tr.
231).
127. Mr. Purvis testified that, under National Institute of
Occupational Safety and Health guidelines, a respiratory
protective device must be certified by NIOSH to be allowed in a
radiologically controlled area (Tr. 233). Mr. Purvis explained
that a dust mask is not certified by NIOSH (Tr. 233).
128. HPS are instructed to remove workers from the work area,
and check them for contamination, if a worker wears a dust mask
in a radiologically controlled area, according to Mr. Purvis (Tr.
234).
129. Grab samples were taken as HP technicians deemed them
necessary, or when they were instructed to take them (Tr. 204).
130. As Mr. Purvis was not qualified to investigate dust beyond
the radioactive components, he referred Complainant to Mr.
Thurmond (Tr. 192).
131. Mr. Purvis heard Mr. Thurmond tell Complainant that the
asbestos and dust samples pulled did not indicate asbestos
hazards (Tr. 227).
132. Mr. Purvis said that, to his knowledge, workers had not
been allowed to wear dust masks on the shift prior to the morning
of March 25, 1990 (Tr. 219). Mr. Purvis testified, however, that
the workers on the prior shift could have used respirators (Tr.
219).
133. Respiratory protection would have been required, according
to Mr. Purvis, when the stainless steel tubes were pulled on the
B platform the night before March 25, 1990 (Tr. 237-38).
Respirators were required that night because the sample level
reached 50,000 CPM per hundred centimeters squared (Tr. 237-39).
134. Except for one section of highly contaminated tubes in the
"D" box, Mr. Purvis testified that respirators were not worn in
the condenser bay area where Complainant worked, unless the
workers were pulling stainless steel tubes (Tr. 221-22). Mr.
Purvis first testified that workers in the "A" box area, where
Complainant specifically worked, did not wear respirators (Tr.
222). Respirators are not always issued, as they place an
additional strain on workers by forcing them to breathe through
the filters (Tr. 220).
135. Mr. Purvis testified that, to his knowledge, Complainant
did not pull stainless steel tubes (Tr. 223). However, the test
results for the night shift previous to March 25, 1990, indicate
that stainless steel tubes were pulled from where Complainant
worked, although not during his shift (Tr. 223). Mr. Purvis
explained that, since stainless steel tubes were pulled the
previous night, it was probable that those workers wore
respirators (Tr. 224). It was not probable, according to Mr.
Purvis, that those workers wore dust masks (Tr. 224).
136. Mr. Purvis knew of no tubes pulled dry from the condenser
bay (Tr. 201). If a tube were pulled out dry, an air sample
would have been taken, according to Mr. Purvis (Tr. 202).
137. It is the responsibility of HPs to report dust or fibers in
the air, but HPs do not have the duty to investigate them beyond
whether they were radioactive or required respiratory protection
for radioactive reasons, according to Mr. Purvis (Tr. 193).
138. No HP working for Georgia Power reported to Mr. Purvis, the
HP foreman, concerning a problem with dust or fibers in the air
or a problem with radioactivity on March 24 or 25 of 1990 (Tr.
193).
139. According to Mr. Purvis, no HPs were qualified to sample
air for fibers or dust, beyond the radiological concerns with
that material (Tr. 208). Asbestos issues and dust samples were
handled by Respondent (Tr. 208).
140. If an HP complained about dust in the air, it was Georgia
Power's policy to pull an air sample and check for concentration
of radioactivity (Tr. 194). An area would be evacuated if there
was a contamination problem. If there was no problem, the dust
concern would be turned over to other safety personnel who handle
those issues (Tr. 194). There was no cause for invoking this
procedure on March 23, 24 or 25 of 1990 (Tr. 194).
A grab sample is pulled by a HP locally, for approximately 15
minutes, with a hand-held pump in various work areas (Tr. 185-
86). A low-vol sample is taken by a stationary pump in a
particular location on a continuous basis (Tr. 185-86). A grab
sample air survey can be used to verify results from low-vol
samples (Tr. 186).
141. Mr. Purvis testified that there has been some contamination
by airborne water or gases, but that the level is low in relation
to the industry nationwide (Tr. 240). Mr. Purvis did not know
the number of such incidents, however (Tr. 240).
d. Mr. South's testimony
142. Mr. South testified that on the morning of March 25, 1990,
he was called by Mr. Thurman concerning Complainant's refusal to
work without a dust mask (Tr. 243). Mr. South told Mr. Thurmond
to check out the work area (Tr. 243). After talking to Mr. Hart,
Mr. South went to two locations to check the work area. First,
Mr. South went to the bottom elevation, below the platform area,
and then Mr. South went up to a higher elevation and looked down
at the work area approximately 30 feet away (Tr. 244). Mr. South
did not go into the actual work area itself, but stood
approximately 20 or 25 feet from it at one point (Tr. 245, 256).
Mr. South testified that neither he nor Mr. Thurmond saw any dust
or fibers in the work area (Tr. 244).
143. There was no work being performed in the area where
Complainant would have worked which would have produced dust,
according to Mr. South (Tr. 245). Mr. South also testified that
there was no other activity in the area (Tr. 260). Approximately
20 workers were in the area when Mr. South viewed it for dust
(Tr. 250). Mr. South specifically noted that there was no
asbestos removal being performed in the condenser bay area,
although he testified that there could have been asbestos removal
in another area, controlled by a negative air tent (Tr. 245-46).
144. Mr. South testified that he did not attempt to shade his
eyes from the light when he visually searched for dust (Tr. 252).
145. While testifying, Mr. South was asked whether he could see
any dust approximately 20 to 25 feet away in the hearing room
(Tr. 256). He testified, "If there was enough of it you possibly
could, (Tr. 256). He also testified that he could say, by visual
inspection, that there was no dust in the air in the hearing room
(Tr. 257). Finally, Mr. South testified that, if there was dust
in the work area, he could have seen it from 20 to 25 feet away
(Tr. 257).
146. Mr. South did not recall ever seeing dust in the work area
(Tr. 258). The work area is under negative pressure, which Mr.
South explained would prevent dust coming to the area from other
areas (Tr. 258). Mr. South also explained that, from one door,
non-filtered air could come into the work area (Tr. 263).
147. Mr. South did not speak directly to Mr. Purvis concerning
alleged dust, but only through Mr. Thurmond (Tr. 255).
148. After talking to Mr. Thurmond and Alfred McDonald
(Complainant's foreman) during the morning of March 25, 1990, Mr.
South told Mr. McDonald to tell Complainant to return to work.
After Complainant still refused to work without a dust mask, Mr.
South told Complainant's union steward to process Complainant for
termination (Tr. 247-48). Mr. South said there was no reason to
reassign Complainant, nor did he have a different work assignment
for Complainant (Tr. 250). Mr. South also testified that there
was "no reason" to send him home for that day (Tr. 251).
149. Mr. South testified that Complainant's work shift was to
begin at 6:30 a.m. on March 25, 1990. Complainant was terminated
at approximately 10 a.m. (Tr. 248).
150. Mr. South stated that he was not aware of any tubes being
pulled out dry (Tr. 261). If one tube, or as many as five, were
pulled out dry, Mr. South testified that he would not be able to
see the dust coming off of one tube (Tr. 262).
151. Mr. South testified that on March 25, 1990, the water pumps
were running, as he observed them from outside of the work area
(Tr. 246).
152. Mr. South testified that he could not tell, by audial
inspection, whether the pumps were putting out a full stream of
water (Tr. 253). Mr. South did not know the flow rate of the
pumps (Tr. 253).
153. Mr. South said that most of the other terminations for
refusing to work are "outright refusals" to go into a certain
area, rather than reasons similar to Complainant's (Tr. 251).
Mr. South testified that no employees who were terminated for
refusing to work were treated differently (Tr. 251).
154. Mr. South testified that he was not aware of other workers
being reassigned after refusing to work (Tr. 255).
e. Mr. Jankovich's testimony
155. Mr. Jankovich testified that Complainant told him that, on
the day before Complainant was discharged, Complainant had
approached the HP on duty regarding tubes which were pulled dry
(Tr. 272-73). Complainant told Mr. Jankovich that the HP on duty
asked the boilermakers to pull one more row (Tr. 273). Mr.
Jankovich had no personal knowledge of tubes being pulled dry
(Tr. 310).
156. If a tube was pulled out dry, this would cause the tube to
vibrate and loosen off particles from the tube (Tr. 278). Such
particles, if dry, could become airborne, according to Mr.
Jankovich (Tr. 279). Such particles would have the heaviest
concentration in the breathing area of the two or three workers
nearest the tube sheet (Tr. 279). If tubes were pulled out dry,
Mr. Jankovich stated that he would have warned the boilermakers
of the situation and suggested that they leave the work area (Tr.
317).
157. The ventilation system in the condenser bay area circulated
and cooled the air well, according to Mr. Jankovich, but it could
move particulates around the area (Tr. 278). However, Mr.
Jankovich testified that all air samples were free of airborne
contaminants (Tr. 278).
158. Mr. Jankovich said he was trained to detect asbestos in the
air by shielding one's eyes from direct light (Tr. 283). The
particles resemble snow dust, and Mr. Jankovich said there was
more asbestos dust in areas where scaffolding and tenting were
removed for asbestos purposes (Tr. 284).
159. Mr. Jankovich testified that, on several occasions during
asbestos removal he had seen asbestos in the air (Tr. 282). Mr.
Jankovich testified that discussion or action concerning asbestos
was "taboo," and that he would just report it (Tr. 282). As it
was not a radiologcal concern, it was not within his job (Tr.
282-83). According to Mr. Jankovich, on one occasion he pulled
an air sample concerning alleged asbestos and was told to throw
it away (Tr. 283). Mr. Jankovich told other workers of the
possible asbestos dust in the work area (Tr. 283).
160. As an HP technician, Mr. Jankovich testified that he is
qualified to verify the possibility of presence of dust fibers
(Tr. 313). Mr. Jankovich had training to recognize potential
asbestos contaminants (Tr. 313, 319).
161. Mr. Jankovich told workers who took air samples that the
equipment used for testing for asbestos was inadequate (Tr. 313-
14).
162. Mr. Jankovich reported the pipe, with exposed asbestos
insulation, to the person who worked for Respondent who handled
asbestos issues, after Complainant notified Mr. Jankovich of the
problem (Tr. 285-86). Mr. Jankovich was told that the exposure
was asbestos, and the exposure problem was taken care of (Tr.
286).
163. Mr. Jankovich was not assigned to observe the working
conditions, where Complainant would have worked, on either March
24 or March 25 of 1990.
164. Mr. Jankovich testified that he was told not to stop a
pulling operation unless there was a life-threatening situation
(Tr. 317).
165. On page 1 of Rx-11, it is indicated that on March 24, 1990,
stainless steel tubes were pulled from boxes "C" and "D" at
approximately 4:15 p.m. (Tr. 321). Work at these boxes would
have been approximately 8 to 10 feet from where Complainant
worked (Tr. 322). Mr. Jankovich testified that this showed that
stainless steel tubes were pulled on RWP 1527 (Tr. 323). This
did not indicate whether respirators were required for this
operation (Tr. 323). There was no radiological airborne safety
hazard, according to Mr. Jankovich, referring to the breathing
air zone samples in Rx-11 taken at that time (Tr. 324). A
breathing air zone sample is taken within three feet of the work
being done, or as close as is possible (Tr. 324).
166. On page 9 of Rx-11, at "B" box, a smear test result
indicated it was performed on stainless steel tubes on the date
Complainant was discharged (Tr. 305). The exhibit did not
indicate to Mr. Jankovich that stainless steel tubes were pulled,
but only that a smear survey was conducted (Tr. 306, 309). HPs
were allowed, by a blanket RWP, to take such surveys (Tr. 306-
308).
167. The last air sample recorded on page 3, in Rx-11, indicates
it was performed under RWP 1527, according to Mr. Jankovich (Tr.
303).
168. Mr. Jankovich testified that a workable hazard would be
indicated by a reading above 50,000 CPM (Tr. 305). According to
Mr. Jankovich, two readings were over this amount in Rx-11 (Tr.
305).
169. Mr. Jankovich testified that the area where routine air
samples were conducted was approximately 12 to 15 feet from where
Complainant was working in late March (Tr. 285). The pumps which
pulled the air samples were not on the platform where tubes were
pulled (Tr. 285).
170. Mr. Jankovich testified that, on several occasions, HPs had
to caution boilermakers against pulling tubes too quickly and not
taking safety precautions carefully (Tr. 279).
171. Concerning the alleged pending strike by HPs, Mr. Jankovich
testified that there was animosity among some workers (Tr. 273).
172. Mr. Jankovich was not aware of radiological concerns or a
breakdown in HP's work which could have raised radiological
concerns (Tr. 294).
173. Mr. Jankovich was aware of one worker who while wearing an
air respirator was nearly drowned after being doused with water
(Tr. 287). According to Mr. Jankovich, this happened because the
air line for the respirator was not properly bled (Tr. 287). Mr.
Jankovich believed that this event occurred approximately three
or four days before the strike at Plant Hatch (Tr. 287).
174. Mr. Jankovich identified the selector switch, on the meter
pictured in Cx-3, as appearing to indicate a 50MR reading (Tr.
276). Other positions were identified for the battery check (Tr.
276).
175. Mr. Jankovich testified that the reading given by the
instrument, in Cx-3, could be a breathable health hazard (Tr.
277).
176. Mr. Jankovich testified that he was aware that there were
dust masks at the condenser bay work area (Tr. 279). Mr.
Jankovich also knew that several workers on the night shifts work
dust masks in the condenser bay work area (Tr. 279-80). As the
dust masks were not devices for radiological control, Mr.
Jankovich stated that instructions concerning the usage of dust
masks were not handled by HPs (Tr. 280).
177. Mr. Jankovich testified that it was not an HP's job to
prevent workers from wearing dust masks (Tr. 311). Mr. Jankovich
was aware of policies and rules prohibiting the wearing of dust
masks in radiologically controlled areas, but did not believe
this applied to areas with other contaminants such as asbestos
(Tr. 311-312).
178. Mr. Jankovich did not know why an HP would prevent a worker
from wearing a dust mask (Tr. 280).
f. Mr. Thurmond's testimony
179. At approximately 7:30 a.m. on March 25, 1990, Mr. Thurmond
received a phone call informing him that Complainant had concerns
with working in the condenser bay area and that an HP technician
had prevented him from wearing a dust mask (Tr. 328). Mr.
Thurmond testified that Complainant told him he had seen dust and
fibers in the air on March 24, 1990 and that he did not want to
go to the work area without protection (Tr. 328).
180. Mr. Thurmond told Complainant that the dust fibers were
definitely not asbestos fibers (Tr. 328). Mr. Thurmond
thereafter received a call from the HP who prevented Complainant
from wearing the dust mask. The HP told Mr. Thurmond there was
no radiological contamination problem in the condenser bay area
(Tr. 328).
181. After talking to Complainant and the HP over the phone, Mr.
Thurmond went to the office where asbestos log books are kept
(Tr. 329). Asbestos removal had been ongoing since February 19,
1990 (Tr. 329). There were no air samples which indicated a
level of concern or an action level as dictated by OSHA
regulations (Tr. 329-30). Mr. Thurmond went to the HP's office
and was told there had not been any significant dust problems
(Tr. 331). Mr. Thurmond also did a "quick survey" of the work
area by viewing the area in protective gear (Tr. 331-32). There
was not any work in progress when Mr. Thurmond made the visual
survey (Tr. 331)). Mr. Thurmond testified that he did not see any
operations which would create dust or any dust otherwise (Tr. 332,
358-59). Mr. Thurmond explained that, in his safety experience,
dust nuisance levels as indicated by OSHA will present a visible
haze (Tr. 332-33).
182. Mr. Thurmond testified that he told Complainant that he did
not see any dust in the work area, and that he had looked at the
asbestos test readings which did not indicate asbestos dust (Tr.
341). Complainant then requested to be allowed to wear a
respirator, although he was not respirator-qualified because of a
blood pressure problem and fitting problem, according to Mr.
Thurmond (Tr. 341). After this refusal to work without
respiratory protection, Mr. Thurmond told Complainant to report
to his foreman. Mr. Thurmond then called Mr. South to explain
the situation to him (Tr. 343).
183. Rx-12 is a portion of the asbestos log entries kept at
Plant Hatch (Tr. 333). The air samples are performed by an
independent laboratory, Advances Analytical Laboratories, Inc.
(Tr. 334). According to Mr. Thurmond, the samples were conducted
in compliance with the proper procedures (Tr. 342). Rx-12 is
composed of entries made for March 25, 1990 (Tr. 334, Rx-12).
Air samples identified as "OSB," or outside barrier, are those
which were taken in the work area and not in an asbestos removal
tent (Tr. 334). Field sample #101, on page 1 of Rx-12,
represents a reading taken from the area pictured on Rx-1, at
approximately 9:20 p.m. on March 25, 1990 (Tr. 335). That sample
indicated 41.5 samples per 100 grids, or 41.5 fibers (Tr. 335).
This does not indicate that these fibers were asbestos (Tr. 335-
36).
184. The readings, included in Rx-12, were not the ones which
Mr. Thurmond relied upon when he checked air samples before
talking to Complainant on March 25, 1990 (Tr. 364).
185. According to the samples represented in Rx-12, Mr. Thurmond
testified that there were no asbestos fibers in or near the
condenser bay at the times tests were taken on March 25, 1990
(Tr. 336).
186. The fourth air sample on the second page of Rx-12 was also
taken near Respondent's work area, at approximately 9:40 in the
morning of the date Respondent was terminated (Tr. 361).
187. Rx-12 does not contain air samples, from Complainant's work
area, which were taken before Complainant was discharged on March
25, 1990 (Tr. 362).
188. The action, or concern, level for dust fibers would have
indicated a .1 reading on Rx-12 (Tr. 363).
189. The reading at the bottom of page 2 of Rx-12 was taken in
the condenser bay area, but was within a "decon" tent with a
negative air flow (Tr. 363).
190. The results of other air samples were not actionable (Tr.
370). Mr. Thurmond did not recall seeing one sample result,
indicating where asbestos removal was performed, nor did he
recall seeing the work in progress (Tr. 370-71).
191. Mr. Thurmond did not see conditions where fibers or dust
were visible in the air on either March 24 or March 25 of 1990
(Tr. 338). If Mr. Thurmond detected dust in the air, he would
have an air sample pulled to determine if the fibers were
asbestos (Tr. 339).
192. Mr. Thurmond routinely makes two visual inspections daily
of the work area (Tr. 337). Mr. Thurmond testified that he was
actively involved in supervising asbestos removal approximately 8
hours out of each 12-hour shift (Tr. 337). Mr. Thurmond
estimated he referred to air samples taken at the plant
approximately 2 or 3 times a day (Tr. 360).
193. The equipment used to test for asbestos particles was not
inadequate, according to Mr. Thurmond (Tr. 352). The air filter
used in the pump was that required by NIOSH (Tr. 352).
194. According to Mr. Thurmond, there was no asbestos abatement
work in Complainant's particular work area or in his ventilation
area on either March 23, 24 or 25 of 1990 (Tr. 357-59). There
was asbestos removal taking place in some other location on March
23, 1990 (Tr. 357). The asbestos removal being performed on
March 23, 1990, was on a different floor, on the piping systems
(Tr. 365).
195. Cassettes, containing filters from the air pumps, were
taken to the laboratory for the initial screening of dust or
fibers (Tr. 359-60).
196. Mr. Thurmond was also responsible for checking areas for
cleanliness (Tr. 339). The pulling of dry tubes would not have
been reported to Mr. Thurmond (Tr. 354).
197. Mr. Thurmond was not responsible for mists which were
created by spraying the tubes, as that was a radiological concern
(Tr. 365).
g. Mr. Zavadoski's testimony
198. On the evening of March 25, 1990, Mr. Zavadoski looked down
into the condenser bay area and did not observe "anything
unreasonable" in terms of dust (Tr. 387). He continued to
monitor that area approximately every two hours (Tr. 395). He
continued to monitor the work area because falsifications and
other problems (Tr. 395). Some HPs from Georgia Power, and ARC,
were involved in the walkoff (Tr. 396). Mr. Zavadoski testified
that he did not find any discrepancies in the records (Tr. 396).
199. Mr. Zavadoski testified that dust masks are not approved as
respirators for two reasons: first, the dust masks do not stop
enough of the potential contamination; and second, they are not
specifically designed to fit workers' faces (Tr. 386). If Mr.
Zavadoski had seen a worker wearing a dust mask, he would have
had that worker pulled from the area and tested for contamination
(Tr. 388). Mr. Zavadoski testified that his workers have been
instructed to do the same (Tr. 389).
200. Mr Zavadoski was aware of the federal regulation which
governs the use of respirators, and prohibits unapproved
respirators (Tr. 385).
201. Every worker at the Plant is given a body count upon
employment to detect any possible previous radioactivity (Tr.
390). After reviewing Complainant's initial, and final, body
counts, Mr. Zavadoski stated the results showed no measurable
contamination (Tr. 391).
202. According to Mr. Zavadoski, all workers are given an exit
body count (Tr. 392). Mr. Zavadoski testified that he had
reviewed all of the body counts of the workers who worked on RWP
1527, and further testified that none of these workers had any
internal contamination (Tr. 393). Mr. Jankovich testified,
however, that he did not have an exit body count when he left the
Plant (Tr. 402). Mr. Jankovich was aware that it is common for
all employees to have such exit counts (Tr. 404). Mr. Jankovich
was not concerned that he had been contaminated (Tr. 404).
[ENDNOTES]
1 Citations to the record are made
with the following
abbreviations:
Tr. - Transcript Page
Cx - Complainant's exhibit
Rx - Respondent's exhibit
ALJ - Administrative file documents
Due to a numbering error at the hearing, there is no exhibit
labelled ALJ-7. However, all ALJ exhibits are within the
administrative file. At the hearing, Respondent's counsel
indicated he might distribute copies of certain air sample
results. These copies were to have been labelled Rx-20.
However, a copy of these materials was never received by this
Office, and thus there is no exhibit labelled Rx-20. See Tr.
372-76.
2 Complainant's pictures, offered
as exhibits, were taken
by someone Complainant chose not to identify (Tr. 42-44).
Complainant was not certain on what date the pictures were taken,
except that they were taken after his termination, probably
between March 25 and March 30 of 1990 (Tr. 42-43). Complainant
did not himself photograph any of the pictures offered into
evidence, but he did identify them as representing the various
boxes (Tr. 68-69). Complainant stated that the condenser
pictured in his exhibits is the condenser at which he worked, as
the other condenser in the plant was in operation at the time the
pictures were taken (Tr. 81). Complainant stated he could hear
the other condenser running while he was working at his condenser
pulling tubes (Tr. 81).
3 The Ninth and Tenth Circuits have
held that the Energy
Reorganization Act employee protection provision is applicable to
employees who file internal safety complaints. Mackowiak v.
University Nuclear Systems, Inc. , 735 F.2d 1159 (9th Cir. 1984);
Kansas Gas & Electric Co. v. Brock , 780 F.2d 1505 (10th Cir.
1985). The Second Circuit has not directly ruled upon the issue,
but has issued a decision in a matter which involved an internal
safety complaint. See Consolidated Edison Co. of New York, Inc.
v. Donovan , 673 F.2d 61 (2nd Cir. 1982). Only the Fifth Circuit
has held that internal safety complaints are not covered under
the Energy Reorganization Act whistleblower provision. Brown &
Root v. Donovan , 747 F.2d 1029 (5th Cir. 1984). As the present
case arises in the Eleventh Circuit (which has not yet ruled upon
the issue), and as the Fifth Circuit's decision on the issue came
after September 30, 1981, the Fifth Circuit's holding in Brown &
Root is not binding. See Bonner v. City of Prichard , 661 F.2d
1206 (11th Cir. 1981). Therefore, the Secretary's decision in
Pensyl is applicable to the present case.
4 It is appropriate here to note a
problem with much of
Complainant's testimony and his witness's testimony. Hearsay
evidence is an out-of-court statement, other than a statement
made by the declarant while testifying, which is offered in
evidence to prove the truth of the matter asserted. See 29
C.F.R. §18.801; Federal Rule of Evidence Rule 801. Although the
Department of Labor's rules of evidence were not specifically
applicable to this proceeding, as the investigation which
preceded the present hearing did not commence thirty days after
publication of the rules of evidence, these rules do indicate the
problem with giving hearsay evidence probative weight. See 29
C.F.R. §18.1104. Therefore, where such testimony is given to
prove the truth of the matter asserted, I have found such
evidence insufficient to prove the matter asserted. However,
where, as here, Complainant states that he heard a particular
statement but does not offer it to prove the truth of the matter
asserted, but rather to prove his state of mind and the
reasonableness of his belief that there were unsafe and
unhealthful working conditions, the hearsay prohibition is not
applicable. In such situations, I find that the credibility of
such statements, to indicate the reasonableness of Complainant's
beliefs, is sufficient.
5 Respondent did not submit the test
results which Mr.
Thurmond relied upon in determining that there was no asbestos
dust problem (F-184). However, as I find Mr. Thurmond's
explanation of his inspection of the test results and work area
sufficient, the fact that the air samples submitted into evidence
were taken after Mr. Thurmond had talked to Complainant does not
indicate that the previous test results were not truly reported.
6 Complainant's witness, Mr.
Jankovich, testified that the
proper way to visually check for asbestos dust is to shield one's
eyes with a hand while looking upward. Although neither Mr.
South nor Mr. Thurmond reported inspecting in that manner, Mr.
Thurmond's reference to air sample records properly tested the
air for such dust. Furthermore, I find that Mr. Jankovich is not
as qualified as Mr. Thurmond, who has worked with that issue for at
least eight years (F-10). Mr. Jankovich's testimony concerning
the alleged inadequacies in asbestos air testing equipment is
likewise not credited, as Mr. Thurmond testified that the
equipment was reliable and met regulatory requirements. Although
I believed Mr. Jankovich when he testified that asbestos was a
taboo subject at the plant, this does not prove that there were
problems with asbestos detection at the time at issue in the
present case. Finally, Respondent sought to have Mr. Zavadoski's
testimony accepted as that of an expert witness (Tr. 379-80). As
Complainant was not put on notice of Respondent's intent to call
an expert witness, such categorization is inappropriate. In any
event, Mr. Zavadoski's testimony is not given much weight since
it does not relate to the events which transpired on the day
Complainant was terminated. Although not as an expert, Mr.
Zavadoski's testimony concerning the propriety of wearing dust
masks does lend credence to Respondent's other witnesses'
testimony.
7 In pertinent part, under Category II of
types of
violations (which includes "[r]efusal to accept work
assignments"), this rule provided as follows:
First Violation
Employee will be terminated for one month at Georgia Power
Plants. Eligible for rehire after one month if the project
requests additional craftsmen and the employee is referred
to the project through the respective referral procedures of
an employee's union.
See Rx-18, p. 2.
8 Respondent raised several motions to
dismiss during the
proceedings (Tr. 21, 110, 325). These motions were taken under
advisement and overruled (Tr. 21, 110-111, 326). Respondent has
argued that once Complainant appeared satisfied with the
explanation that there was no contaminated dust or particles, his
concerns about dust which irritated his breathing condition were
outside the scope of the Energy Reorganization Act. Respondent
has cited no authority directly on this issue. As the purpose of
the Energy Reorganization Act is to encourage employees of
nuclear facilities to report safety concerns, a distinction
between radioactively contaminated dust and other dust would tend
to hinder such employee reports. The Secretary of Labor has
indicated a very broad range of activities which are considered
"protected" under this statute. Therefore, I find that, under
the facts of this case, Complainant's concerns were within the
protection of the Energy Reorganization Act. Further, it should
not be implied from this finding that Respondent was in fact not
in violation of any safety rules concerning dust or specifically
asbestos dust in the workplace. The present issues include
whether Respondent adequately investigated and explained the
condition of the work area for purposes of this Act or whether
Respondent unlawfully discriminated against Complainant for
voicing safety concerns, not whether Respondent acted
appropriately within the constraints of another act or whether
the work area was in fact safe.