before. Id. Complainant's assignment was to prepare a broken pipe for welding. T. 225; 334. The preparation work was to be done using air powered grinding equipment, acetylene torches, and 12 volt lighting suspended above the water. T. 214. Complainant was not a welder and was not assigned to do welding in the condenser. T. 225.

   It was at that point that Complainant raised a question with Mr. Benson, Mr. Ellingwood and Mr. Hamilton about contaminated water in the condenser. T. 21. When these supervisors said nothing could be done about the water, Complainant suggested pumping it out. Mr. Ellingwood and Mr. Hamilton said that was not practical. Complainant then went to see the Iowa Electric safety representative. Id.

   Dave Kerr, who was the acting Iowa Electric safety representative on May 20, 1987, T. 160, testified that Complainant came to see him at 8 a.m. on May 20 complaining that workers in the condenser had to crawl through contaminated water. T. 161. In Complainant's presence, Mr. Kerr called the Health Physics desk in charge of the condenser area. T. 162. The Health Physics employee told Mr. Kerr that there was no danger from a radiological standpoint in going through the water. Mr. Kerr told Complainant there was no reasonable radiological concern about the water in the condenser. T. 176. Mr. Kerr suggested that Complainant inquire about getting the water pumped out, and that no welding should be done in the water. T. 163. Mr. Kerr also told Complainant that workers should not crawl through the water if it made them wet when they did welding, T. 166, because of the danger of shock. T. 175.

   Complainant returned to the condenser area and, in his own words, "confronted" Mr. Benson, Mr. Hamilton and Mr. Ellingwood. T. 21. Complainant announced loudly that he had put a "hold" on the job, and that the water would have to be pumped out of the condenser before work could resume. Complainant said Dave Kerr had said those steps were required. T. 305; 337. Complainant had no authority as safety marshall, or

otherwise, to put a "hold" on a job. See Respondent's Exhibit 1.

   Earlier that morning, Mr. Benson had told Mr. Ellingwood and Mr. Hamilton that there was a Health Physics "hold" on the work in the condenser. Mr. Ellingwood and Mr. Hamilton asked the Health Physics employee in that area what the problem was, T. 302-303, 336, and the Health Physics employee told him no welding should be done in the water. T. 303, 336. Mr. Hamilton and Mr. Ellingwood went to see Kevin Konzem, the Health Physics foreman. Id. Mr. Konzem investigated the problem and told Mr. Ellingwood and Mr. Hamilton that there was no radiological problem with working in the condenser. T. 254, 266; 305; 336. Mr. Konzem told them the "hold" had been placed on the work in the condenser by the safety representative, Dave Kerr. T. 258. The reason for the "hold" was concern about industrial safety, not radiological health. T. 264.

under Mr. Ellingwood's supervision. T. 308; 312.

   Mr. Ellingwood and Mr. Hamilton went to see Dave Kerr who approved the precautions planned to protect welders from electric shock. T. 310- 311. Mr. Ellingwood told Mr. Hamilton to get the work started and that Complainant should be given an opportunity to do the work in the condenser. If Complainant refused, Mr. Hamilton was to fire him for refusal to work as directed. T. 311.

   In the meantime, Complainant testified, he spoke to another Health Physics employee who told him the water was contaminated and no one should work in the condenser until the water was removed. T. 21. After talking with Dave Kerr, Mr. Ellingwood went to a meeting and Mr. Hamilton returned to the condenser area. Complainant confronted Mr. Hamilton again about conditions in the condenser and Mr. Hamilton explained for the second time all the precautions that had been taken. T. 341. Complainant and Mr. Hamilton argued in loud voices, Complainant saying several times if they wanted him to do that job they would have to fire him. T. 342. Mr. Hamilton told Complainant to get his equipment and start work. Complainant said "get my money," (meaning fire me), "I am not refusing to do the work, I am refusing to go down there and ... crawl in the water." Id. At the end of this argument, after Complainant said several times "get my money," Complainant told Mr. Hamilton he wanted to see the NRC. Mr. Hamilton told Complainant that the NRC had nothing to do with this, that Complainant could call them from the pay phone outside the plant gate because he was fired. T. 343. Mr. Hamilton obtained a discharge form from the timekeeper, had Mr. Ellingwood sign it, and escorted Complainant to the security building at the plant entrance. T. 346-6;315.

I. Refusal to work.

    The employee protection provision of the ERA provides

No employer, including a Commission licensee, an applicant for a Commission licensee or a contractor or a subcontractor of a Commission licensee or applicant, may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, or privileges of employment because the employee (or any person acting pursuant to a request of the employee)-

    (1) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter or the Atomic Energy Act of 1954, as amended . . . or a proceeding for the administration or enforcement of any requirement imposed under this chapter or the Atomic Energy Act of 1954, as amended;

    (2) testified or is about to testify in any such proceeding or,

    (3) assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other manner in such a proceeding or in any other action to carry out the purposes of, this chapter or the Atomic Energy Act of 1954, as amended ...

42 U.S.C. § 5851 (a).

   The Secretary has construed the ERA several times in the context of an employee's refusal to work. Wilson v. Bechtel Construction, Inc., Case No. 86-ERA-34, Sec. Decision, Feb. 9, 1988, slip op. at 9-11; Smith v. Catalytic, Inc., Case No. 86-ERA-13, Sec. Decision and Remand Order, May 28, 1986, slip op. at 3; Pensyl v. Catalytic, Inc., Case No. 83-ERA-2, Sec. Decision, January 13,

1084, slip op. at 6-7. Under the ERA, a worker has the right to refuse to work when

he has a good faith, reasonable belief that working conditions are unsafe or unhealthful. Whether the belief is reasonable depends on the knowledge available to a reasonable man in the circumstances with the employee's training and experience .... Refusal to work loses its protection after the perceived hazard has been investigated by responsible management officials . and, if found safe, adequately explained to the employee.

Pensyl, slip op. at 6-7. The issue is whether, under the circumstances in this case, Complainant's belief was reasonable that the water in the condenser was contaminated and posed a significant radiation hazard, and that there was a significant hazard of electric shock. For the reasons discussed below, I find neither of these concerns of Complainant was entitled to protection justifying a refusal to work under the ERA and Pensyl v. Catalytic.

   A. The ALJs Decision.

   The Administrative Law Judge (ALJ), who ruled in favor of Complainant in his Recommended Decision and Order Granting Petition (R.D. and O.), found that "[t]he facts of this case present a very close question as to whether [Complainant] had a reasonable belief of unsafe working conditions." R.D. and O. at 16 (emphasis in original). With respect to the electrical hazard, the ALJ found that "Mr. Kerr ... had not conveyed [to Complainant] the fact that the carpenters were to put In scaffolding [above the water] for the welders." Id. However, the ALJ found that "[Complainant's] position on potentially contaminated water is much more tenuous." Id. The ALJ never explicitly found that either of Complainant's safety concerns was reasonable under Pensyl v. Catalytic, nor did he identify on which concern he based his conclusion

that the Act was violated.

   B. Refusal to Work Based on Fear of Electric Shock.

   I find that Complainant's concern about electric shock did not justify his refusal to work. Complainant was not a welder on this job and was never assigned to do welding in the condenser. His assignment on May 20 was to prepare a broken pipe for welding, using air powered equipment. No welding even was scheduled on the day of Complainant's confrontation with his supervisors and discharge. See n.2 supra. In addition, when Complainant raised this concern, management investigated and explained the precautions it was taking, including installing wooden platforms for the welders and low voltage lighting. I find that these measures and the steps taken by Respondent's supervisors Mr. Ellingwood and Mr. Hamilton to explain this to Complainant meet the test under Pensyl. Complainant therefore did not have a reasonable belief that there was a safety or health hazard to him which would justify his refusing to work under the Act.

   C. Refusal to Work Based on Concern about Contaminated Water.

   The closer question, as the ALJ perceived, is whether Complainant's concern about radioactive contamination in the water in the condenser was reasonable under the circumstances. Mr. Kerr, the Iowa Electric safety representative, testified that he told Complainant that the Health Physics desk told him there was no legitimate radiological concern about the water in the condenser. T. 176. Mr. Kerr's conversation with Complainant focused on the electrical hazard. T. 176-177. Complainant denied at the hearing that Mr. Kerr told him there was no legitimate concern about radioactive contamination, T. 72, but the ALJ did not make a credibility finding on this specific point.

   Several facts in the record support Mr. Kerr's version of this conversation. Other facts also indicate that Complainant's concern about contaminated water was not reasonable. On May 16, 1987, Complainant knew that three workers had

crawled through the water in the condenser and their clothing had become soaked, but no significant contamination was found. T. 45-46. On Monday, May 18, 1987, Complainant began his duties as safety marshall for the week. T. 17-18. Complainant's duties as safety marshall included touring the plant, noting safety problems, and "recommend[ing] . . . remedial action to the responsible supervisor." Respondent's Exhibit 1. But Complainant did not raise any question about contaminated water in the condenser until the morning of May 20, after two workers had complained to him the night before about possible contamination, T. 19-20, and after it appeared to Complainant that he would be assigned the "hot and miserable" work in the condenser. T. 42.

   Complainant testified that a person or persons in the Health Physics department told him several times that the water was contaminated, T. 20, 21, 57, but this individual or individuals did not testify and Complainant could not recall his or their names. Henry McQueen, another boilermaker, testified that Mr. Benson and a Health Physics employee told him the water was "potentially" contaminated. T. 186; 191. But Mr. McQueen did not think the water was actually contaminated because he asked the Health Physics employee who had just taken a survey and who told him it was not. T. 197.

   Mr. Kevin Konzem, a Health Physics foreman in the radiation protection department, T. 247, testified that as of the morning of May 20, 1987, there was no radiological concern regarding work in the condenser, even if workers were required to crawl through the water. T. 254, 257. Mr. Ellingwood and Mr. Hamilton, Complainant's supervisors, contacted Mr. Konzem about whether there was a Health Physics "hold" on work in the condenser on the morning of May 20. Mr. Konzem investigated, found that there was no Health Physics hold on the work, T. 253, and so informed Mr. Ellingwood and Mr. Hamilton. T. 257. The hold had been placed on the work for safety reasons by Mr. Kerr. T. 258.

   Taken as a whole, I find that the record supports Mr. Kerr's testimony that he told Complainant there was no reasonable radiological concern about the water in the condenser on May 20, 1987. Based on the information given to Complainant by Mr. Kerr, and information available to him from Mr. Konzem, a Health Physics foreman, and from other Health Physics employees in the area, I find that Complainant did not have a reasonable belief that the working conditions in the condenser due,to potentially contaminated water were unsafe or unhealthful under the ERA so as to justify a refusal to work under Pensyl v. Catalytic, Inc.

II. Complaints About Contaminated Water, Electric Shock Hazard and Threat to Go to NRC as Independent Protected Activities.

   The questions raised by Complainant about potentially contaminated water in the condenser and the danger of electric shock, as well as his announced intention to go to the NRC, are protected activities in and of themselves. Kansas Gas and Electric v. Brock, 780 F.2d 1505, 1513 (10th Cir. 1985); Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159, 1163 (9th Cir. 1984). Complainant has established prima facie case of retaliation by showing that he engaged in these activities and was discharged shortly thereafter. Dartey v. Zack Company of Chicago, Case No. 82-ERA-2, Sec. Decision April 25, 1983, slip op. at 7-8.

   However, with respect to the complaints about contaminated water and electric shock, Respondent has produced evidence of legitimate, nondiscriminatory reasons for Complainant's discharge. Respondent showed that it discharged Complainant for his refusal to work (which had lost its protection under the ERA) and the confrontational and abusive manner in which he raised these complaints. I reject the ALJ's findings (though not stated in these terms) that Respondent's articulated reasons for its action were pretextual. The ALJ found that both Mr. Ellingwood and Mr. Hamilton

work in the condenser before the first confrontation with his supervisors on May 20, and that this was what prompted him to raise objections to "crawling through the water."

   On the morning of May 20, Mr. Benson told Complainant that Mr. Ellingwood and Mr. Hamilton had decided that the two employees who had worked in the condenser on Tuesday, May 19, were being reassigned and that Complainant was being assigned to work in the condenser. T. 20. Mr. Benson believed he was told to assign Complainant to work in the condenser because Complainant had had a confrontation with his supervisors. T. 224. But the other testimony, including that of Complainant himself, shows that Complainant was given this assignment before he first complained to Mr. Hamilton and Mr. Ellingwood about contamination in the condenser. Complainant testified that "before I went up there [to see Mr. Kerr] . . . Paul Benson come to me and told me that Mr. Ellingwood and Mr. Hamilton had decided that [the other two employees] was going to be pulled off of the work and that I was going to do the work." T. 20. Complainant asked if there was anything that could be done about the water in the condenser and, when Mr. Ellingwood and Mr. Hamilton said no, Complainant went to see Mr. Kerr. T. 21. It was only after talking to Mr. Kerr that Complainant "confronted" Mr. Ellingwood and Mr. Hamilton. Id.; see also T. 307-308; T. 338-339. Mr. Ellingwood tried to explain the precautions being taken against electric shock, T. 307, when Complainant leaned forward with his face several inches from Mr. Ellingwood's, saying loudly and belligerently that he would not "crawl through that contaminated water and if you don't like it you can fire me." T. 308.

   Mr. Ellingwood believed Complainant had made a direct challenge to Mr. Ellingwood's supervisory authority in an aggressive, abrasive and physically threatening manner in front of other employees whom he supervised. T. 308-309. Mr. Ellingwood directed Mr. Hamilton to give Complainant another opportunity to do the assigned work or be fired. T.