Complainant's voice
became
louder and louder. T. 307. When Mr. Ellingwood
said he and Mr. Hamilton would talk to Dave Kerr,
Complainant leaned forward with his face several
inches from Mr. Ellingwood's and said "I would be
damn if I will crawl around in that [contaminated]
water," T. 67, and "if you do not like it you can
fire me." T. 308; 338. Mr. Ellingwood felt
Complainant was being very aggressive and belligerent,
T. 309, challenging Mr. Ellingwood's authority
to supervise in front of six to ten people who were
[Page 5]
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.
[Page 6]
DISCUSSION
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,
[Page 7]
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
[Page 8]
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
[Page 9]
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.
[Page 10]
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
[Page 11]
went to a staff meeting at 9 a.m. on Wednesday,
May 20 with Gerald Nielson, Respondent's project
manager. R.D. and O. at 3. The ALJ also found
that Mr. Hamilton left the meeting at 10 a.m. with
a termination slip initialed by Mr. Nielson, and then
had the final confrontation with Complainant in
which Mr. Hamilton fired Complainant. Id . at 3.
Based on these findings, the ALJ concluded that
"[t]he ordering of [Complainant] into the condenser
was a very thinly guarded attempt to have him
discharged. At the time [Mr.] Hamilton already had
his discharge slip in hand, 'proof in the pudding.'"
Id. at 16.3
I do not find support in the record for the ALJ's
finding that Mr. Hamilton went to the meeting with
Mr. Nielson and Mr. Ellingwood, or that Mr.
Hamilton left the meeting at 10 a.m. with a termination
slip already initialed by Mr. Nielson before the final
confrontation with Complainant. Mr. Hamilton
testified that, after he and Mr. Ellingwood met with
Dave Kerr, Mr. Hamilton went back to the
condenser area. T. 340-34 It was only after
Complainant confronted Mr. Hamilton again, as
described above, T. 341-343, that Mr. Hamilton
obtained a termination slip from the timekeeper and
had Mr. Ellingwood fill it out. T. 345. Mr.
Ellingwood testified that at about 9:40 a.m. Wednesday,
while he was in the meeting with Mr. Nielson, Mr.
Hamilton came to the hallway outside the
conference room with the termination slip for
Complainant. Mr. Ellingwood signed it, took it inside the
conference room and gave the slip to Mr. Nielson,
who also signed it. T. 314-315. At the start of the
meeting at 9 a.m., Mr. Ellingwood had informed
Mr. Nielson that they had been having a problem
with Complainant and might have to fire him if he
refused to work. Id .
Neither do I find support in the record for the
ALJ's speculative conclusion that assigning
Complainant to work in the condenser "may have
been discriminatory, in that [Complainant] was
required to do a different job because of his report
of a safety violation." R.D. and O. at 16. The
record shows that Complainant was assigned to
[Page 12]
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.
[Page 13]
312-313.4 Mr. Ellingwood felt it was
necessary in
these circumstances to assert his authority as a
supervisor because Complainant had directly
challenged that authority. T. 312. Mr. Ellingwood
therefore told Mr. Hamilton to order Complainant
to work in the condenser and "if [Complainant]
refused to go that he was to be terminated for
refusal to work as directed." T. 311. This case,
therefore, is quite distinct from Kenneway v.
Matlack, Inc ., Case No. 88-STA-20, Sec. Decision
June 15, 1989, in which, under the Surface
Transportation Assistance Act, an employee's refusal to
work was protected, and the intemperate
language used by the employee toward his
supervisor was in a private, after-hours telephone
conversation. Kenneway v. Matlack, Inc ., slip op. at 10;
see also discussion therein of cases balancing
protection for intemperate language when linked
with otherwise protected activity against the
employer's right to maintain shop discipline, slip op.
at 6-7.
On the record as a whole, I find that Complainant
has not carried his burden of proving that the
protected activities of complaining about potentially
contaminated water and the hazard of electric
shock were motivating factors in Respondent's
decision to fire him. Dartey v. Zack Co ., slip op. at
8. I find further that, even if Respondent were
motivated in part by Complainant's safety complaints,
it would have discharged Complainant for his
refusal to work, for the abusive, hostile way he
raised those complaints, and for his deliberate
flouting of supervisory authority. "An otherwise
protected 'provoked employee' is not automatically
absolved from abusing his status and overstepping
the defensible bounds of conduct." Dunham
v. Brock , 794 F.2d 1037, 1041 (5th Cir. 1986).
Complainant's statement that he wanted to
speak to the NRC came at the end of the second
confrontation with his supervisors, after he already
had made it clear that he would not accept the
assignment in the condenser. Complainant had
just told Mr. Hamilton several times "[g]et my
[Page 14]
money" (meaning "fire me") when he said he
wanted to go to the NRC. This statement, coming
at the end of the second heated confrontation
between Complainant and his supervisors, after
Complainant had refused several times to perform
assigned work, had virtually nothing to do with the
decision to discharge Complainant. The record
shows that the supervisors decided to discharge
Complainant for his refusal to work and his
abusive manner, not for his threat to go to the NRC.5
Having found that Respondent did not violate
the ERA when it discharged Complainant, it is not
necessary for me to consider Complainant's
request for attorney's fees. Accordingly, the
complaint in this case is DISMISSED.
SO ORDERED
LYNN MARTIN
Secretary of Labor
Washington, D.C.
[ENDNOTES]
1 The Health Physics Department is
responsible for radiation
control in the nuclear power plant. T. 17.
2 Complainant's assignment was
to prepare the work for
welding, not to do the welding himself. T. 71; 225. No welding
was scheduled until the next day, May 21. T. 337.
3 None of these findings by the
ALJ, nor indeed any other
finding in the R.D. and O., is supported by explicit record
references
4 Complainant's refusal to
work, as I have found above, at
that point was not a protected activity.
5 The confrontation between
Complainant and Mr. Nielsen at
a tavern later the same day occurred after Complainant had
been fired and is not relevant to Respondent's motive for firing
him.