ISSUES AND STATEMENT OF THE CASE
This case involves two issues. One is whether the respondent's appeal of
OSHA's determination should be considered timely. The second and principal issue is whether
U.S. Steel discriminated against the seventeen complainants because of the employees'
engagement in protected activity. Complainants contend that U.S. Steel discriminated against
them because they inquired about their dosimeter or radiation badge readings, then contacted the
Nuclear Regulatory Commission (NRC) after discovering their badges had been lost. The four
areas of alleged discrimination are: (1) the elimination of the complainants' privilege of driving
their personal vehicles into the plant; (2) the reduction of their telephone privileges at work; (3)
changing of their work schedules from mostly a day shift to a rotating shift commonly called the
Timkin schedule; and, (4) a reduction in their overtime hours due to the change to the Timkin
schedule. It is U.S. Steel's position that all of the alleged adverse work actions were taken for
legitimate non-discriminatory reasons.
FINDINGS OF FACT
Protected Activity
U.S. Steel operates the Gary Works steelmaking facility in Gary, Indiana.
The complainants in this case are seventeen employees who work as systems repairmen in the
plate mill of the Gary Works facility. The systems repairmen are members of the United
Steelworkers of America Union and are covered under a collective bargaining agreement. (RX
2). The complainants are responsible for maintenance and repair of two Daystrom isotope
gauges located at the east end of the plate mill. Each of the gauges contains twenty curies of
Cesium 137 and both gauges are licensed with the NRC. (ALJX 7; CX 5). While working on
[Page 3]
the gauges, the systems repairmen wear dosimeter badges which measure the amount of radiation
in the area. The badges are provided by U.S. Steel each month and are sent to an outside agency
for evaluation and data collection. (Tr. 104, 308, 356).
U.S. Steel designated a new supervisor for the systems repairmen in early
1997. Prior to that time, the systems repairmen had experienced no difficulty in requesting and
receiving their dosimeter badge information from their previous supervisor. However,
complainant John Lazur stated that he asked the new supervisor for his badge data once between
March and December of 1997, but never received the information. Around April of 1997,
Marjan Trajkovski asked the new supervisor for his badge data, and although the new supervisor
stated that he would look into it, Mr. Trajkovski never received the information. Similarly,
complainant Jason Lax requested his dosimeter badge information from the new supervisor in
mid-1997, but did not receive the information. Within a month after the request, he asked the
new supervisor about the badge readings. The supervisor said he would look into the matter but
the information was never received. Dionisio Pineda stated that in late summer of 1997, the new
supervisor responded with an expletive when Mr. Pineda asked for his badge data and was told
that he was acting like another employee whom always raised safety concerns. Mr. Pineda stated
that he was scheduled to work several weeks of evening and midnight shifts after making this
request. Sometime prior to April 29, 1998, complainant Michael Johnson requested his badge
data from a process control technician but never received the information. (Tr. 310-12, 339-46,
356-59, 480-82, 619-21, 1030).
The NRC conducted an inspection of U.S. Steel on April 6, 1998 and an
in-office review through April 15, 1998. As a result, U.S. Steel received a Notice of Violation on
April 20, 1998. The NRC reported that U.S. Steel's "conduct of licensed activities were
generally characterized by safety-conscious nuclear gauge operations and sound health physics
practices" but that one violation of NRC requirements was found which involved
"failure to have film badges processed monthly to obtain dosimetry results" between
January 1995 and April 6, 1998. (RX 3). Specifically, the NRC inspector reported that the
badges assigned to maintenance, operating and supervisory personnel, regularly assigned to the
immediate area of a nuclear device, were not changed monthly to provide dose information
because the badges were not sent for processing. (RX 4). The company subsequently
determined that the employee responsible for submitting the badges for processing for the entire
Gary Works had lost them for that period of time. (Tr. 838-839).
[Page 4]
Around the third week of April 1998, the Manager of Operations was
informed by telephone by the Radiation Safety Officer that the employees' dosimeter badges were
missing. The operations manager arranged to have a meeting on April 29, 1998 with the systems
repairmen so that representatives of the manufacturer of the isotope gauges could discuss safety
training with the repairmen. He arranged for personnel in the company's medical department to
consult with medical facilities about the possible effects of radiation exposure because of the lost
badges, so that the systems repairmen could be appropriately apprised of the situation from a
medical standpoint. He also requested U.S. Steel's Employee Assistance Program to provide
counseling to those systems repairmen concerned about the lost badges. (Tr. 839-841).
After taking these immediate steps, the Manager of Operations next asked
some experts to determine if the shutter on the isotope gauges could inadvertently open and if so,
to measure the possible extent of radiation exposure to the systems repairmen during the time the
dosimeter badges were lost. This assessment resulted in the so-called Huber report. The
research for the report included an inspection of the gauges for ambient radiation exposure rates
used in conjunction with other documentation such as personal exposure histories, review of U.S.
Steel and Gary Works procedures, and interviews with the Radiation Safety Officer. (CX 5; Tr.
837-44).
The systems repairmen were disturbed by their badges being lost and
several of the employees requested their dosimeter badge information after the company's
disclosure that the badges had been lost. The employees received some information, but were
not satisfied and a few of the complainants continued to request information. (CX 4, Tr. 107,
281-87). After their April 29, 1998 meeting with management, the systems repairmen met and
discussed their concerns. (Tr. 645-46). Complainant John Lazur contacted the NRC after the
April 29, 1998 meeting regarding these concerns.
The NRC performed another inspection on May 14 and 15, 1998. The
NRC determined that from November 1991 to May 14, 1998 U.S. Steel employees entered areas
where the beam of the radiation device may have been present. The agency found that personnel
entered the beam area without proper lock-out of the nuclear gauge source shutter. (RX 5, 6).
The NRC determined that this was due to inadequate training.
A second meeting was held with the systems repairmen on June 18, 1998
and the Huber report was discussed with them. (Tr. 843). The complainants felt that the purpose
of the second meeting was to tell them it was safe to continue working on the gauges. (Tr. 106,
198-200). However, they were concerned about their lifetime radiation dosages and stopped
working on the gauges until they received further reassurances from management that it was safe
to continue. (Tr. 106-09, 210-18). The systems repairmen drafted a letter in response to the
Huber report in June of 1998, expressing their disagreement with some of its conclusions. They
noted in this letter a few discrepancies in the report and that they thought some of the findings of
the report should be invalidated because of a potential conflict of interest. (Tr. 488-92; CX 6).
The operations manager had the response to the Huber report reviewed and evaluated by two
radiation safety officers of the company and by the experts who prepared the report. (Tr. 904-
05).
[Page 5]
Drive-In Privileges
The Gary Works plant encompasses around 4000 acres on the southern end
of Lake Michigan. (Tr. 984). There are in excess of 7,000 employees at this plant and about 600
of them work in the plate mill. (ALJX 1; Tr. 834, 835). The ability to drive an employee's
personal vehicle into the plant is limited to those employees who are granted drive-in passes. All
others must park and ride a bus into the plant. Granting of drive-in passes for the entire facility is
controlled by the Department Manager of Security. The security manager testified that since he
began his job in 1995, one of the edicts from plant management and from corporate risk
management has been for him to reduce the amount of people driving in the facility and that he
has done so every quarter. In the past, there had been problems with accidents and traffic at the
main gate, along with complaints about the time it takes to get in and out of the gate. (Tr. 987-
95).
The General Manager testified that the reduction of vehicles driving into
the Gary Works plant has always been a concern and they were trying to reduce the number of
drive-in passes for security reasons. (Tr. 793). The Manager of Operations for plate products
received a telephone call from the security manager around Thanksgiving 1997. The security
manager informed him that the plate mill had the largest number of employees driving their
personal vehicles into the plant and that he wanted to eliminate some of their drive-in passes on
January 1, 1998, the start of the first quarter. After some discussion, he agreed to make the
change effective at the start of the second quarter, April 1, 1998. (Tr. 844-48).
The operations manager received a letter from the General Manager on
January 21, 1998. The purpose of this letter was to discuss the operations manager's business
objectives for that year. He was advised in this letter that he should add an objective for 1998 to
develop and implement uniform procedures with respect to standardized handling of overtime,
absenteeism, start/stop time, and drive in-passes. (RX 7; Tr. 851-52).
Prior to the second quarter of 1998, approximately 140-150 employees of
the plate mill had drive-in passes. On March 19, 1998, the Manager of Operations took the first
quarter list of drive-in passes, crossed off a number of names and gave the list to his secretary to
re-type. Approximately eighty-five names were eliminated, including most of the systems
repairmen. However, a few of the systems repairmen were allowed to retain their drive-in passes
for medical reasons. (Tr. 155-56, 853-55; RX 8, 9, 10). On March 30, 1998, the operations
manager advised all plate mill employees by letter that effective April 1, 1998, drive-in passes
would only be issued to employees who meet one of three criteria: (1) acting in managerial
capacity; (2) medical need; or (3) a personally owned vehicle is required on a daily basis to meet
job requirements. (RX 11).
[Page 6]
The complainants stated that not being able to drive their personal vehicles
into the plant makes their jobs more difficult as there is a vast area around the plate mill and it
takes longer for them to travel between their job sites. They also stated that it makes getting to
their jobs, carrying tools and obtaining parts more difficult. (Tr. 123-27, 220-23, 387-88).
Complainants had previously driven their personal vehicles to jobs outside of the plate mill
building, but ceased working on those routes two to three months after they no longer had drive-
in privileges. (Tr. 55-56, 1039). Although a shop truck was made available to the systems
repairmen, they indicated they did not often use it and that the truck was rarely there when they
needed it. (Tr. 176-77, 221-22). The Area Manager for the plate mill testified that the systems
repairmen do not need their own vehicles to perform their duties. (Tr. 1014).
Neither the complainants' supervisor nor the supervisor of the entire repair
group was responsible for the reduction in the number of drive-in passes available to the systems
repairmen in 1998. (Tr. 1018, 1032). The decision to reduce the drive-in passes to plate mill
employees principally was made by the safety manager with input from managers of the
operating units. (Tr. 987-88). The Manager of Operations of the plate mill then made the
decisions as to which employees' drive-in passes would be eliminated in 1998. (Tr. 853-55; RX
8, 10).
Telephone Privileges
The General Manager of plate products stated that the company decided in
June 1997 to make changes in the telephone service to provide better service at a reduced cost.
(Tr. 784-85). The company purchased telephones instead of leasing them and changed the
telephone system to track individual telephone costs and the number of calls made from each
telephone. (Tr. 864; RX 12 ). The company received available data from this tracking regarding
telephone usage and cost by extension number and found the telephone bills amounted to an
average of $18,500 a month. (RX 1). Consequently, the Gary Works personnel were required to
review their telephone service because telephone costs were to be allocated to specific work units
based on their telephone usage. The company determined from the review that there was a
blatant abuse of the telephone system. These abuses included calls to investment companies,
credit card companies, internet, long distance and calls out of the country, as well as large
numbers of local calls. Some of the complainants admitted that they made personal calls from
their work telephone, including long distance calls. One complainant indeed testified that he
called home two or three times a day, and that as long as it is condoned by management, an
employee should be able to call home for as long as an hour or two in a day. (Tr. 394-96, 548,
720-21, 785, 863-64, 870, 880).
There are six different levels of telephone service available at Gary Works.
Level A1, the lowest level, allows local calls to be made and received only within the Gary
Works facility. The highest level, A6, allows calls to be made nationally and to selected
international locations and allows calls to be received from anywhere. (RX 13). The Manager of
Systems, Communications and Process Control sent a memorandum, dated August 1, 1997, to
[Page 7]
the Division Manager of plate products regarding controlling telephone costs by reducing the
level of service and indicating that A4 should be the highest level of service for most of the
telephones in the plant. Level A4 allows calls to the areas of Illinois and Indiana where all of the
employees live. Attached to the memorandum were the current telephone costs for the plate mill
division listed by extension number. (RX 13). The General Manager advised the Division
Manager, by letter dated April 7, 1998, that telephone costs for the previous month totaled
$18,571. He also requested a review of the listing of telephone costs by extension number and
that he be advised why the highlighted units required service higher than that provided by the A1
level. (RX 1). The General Manager also questioned why anyone at the local plant could call
anywhere in the world. He wanted his direct managers to review this information and report
back to him. Most of the replies were received around April 23, 1998. (Tr. 785-86).
After a review of the telephone lists for type of service and necessity, the
company decided to disconnect twenty-four lines, delete four from plate mill responsibility,
downgrade twenty-one lines and to correct other problems. (RX 14, 15, 16). There were
approximately one-hundred and thirty to one-hundred and forty telephones in the entire plate
mill. (Tr. 872). The systems repairmen had four extensions in their area. Changes were made
on about fifty of the telephones in the Gary Works facility. In the complainants' area, one
extension was eliminated, two were reduced to level A1 service and no changes were made to the
supervisor's telephone. (Tr. 874). Although the recommendations were to take effect April 30,
1998, it took around two weeks after that for all the changes to take place. (Tr. 876-77). After
the changes were made, complainant Marjan Trajkovski requested that the company at least
update the telephone service to allow incoming calls so that their families could contact them
when needed. This change was made. (CX 7; Tr. 367, 534-35). There are four pay telephones
within the Gary Works facility that the systems repairmen can use for personal use and their
supervisor has the discretion to allow the employees to use his telephone for personal or business
use. (Tr. 881-82).
Complainants stated that the repairmen were never given a reason, either
orally or in writing, for the telephone changes. The repairmen testified that there were no
complaints about misuse of the telephone system mentioned to them prior to the loss of the
telephone privileges. (Tr. 170, 400-01). Complainants believe the telephone changes make their
job duties more difficult, since they are unable to call for technical support. (Tr. 223-25 ).
Neither the supervisor of the systems repairmen nor the supervisor of the
entire repair group was responsible for the reduction in the telephone services available to the
employees in 1998. (Tr. 1018, 1032). This decision principally was made by upper level
management. (Tr. 784-85, 996-997). However, the Manager of Operations made the specific
recommendations to reduce or eliminate telephone services for the extensions within the plate
mill including those pertaining to the systems repairmen. (Tr. 871-872; RX 14-16).
[Page 8]
Timkin Schedule and Overtime
As part of yearly objectives, the General Manager asked the Manager of
Operations to look at several issues in January 1998, one of which was overtime. (Tr. 805; RX
7). Prior to May 1, 1998, the majority of the systems repairmen worked rotating shifts which
included three weeks of day shift, one week of evening shift from 3:00 pm to 11:00 p.m. and one
week of midnight shift. (Tr. 114-15). The evening and midnight shifts are often referred to as
"back turns" within the company. The operations manager decided to implement a
change to a Timkin schedule as a part of his 1998 objectives, although he had discussed such a
change in December of the preceding year. A Timkin schedule is a rotation schedule consisting
of one week of day shift, one week of midnight shift and one week of evening shift. The
operations manager stated that this type of schedule had benefitted other crafts in the company
and he decided to implement the Timkin schedule for the systems repairmen to improve
efficiency by putting a supervisor on all shifts and a greater number of competent employees on
the evening and midnight shifts. The end result of the Timkin schedule simply is that it provides
for more people working the evening and midnight shifts at one time than there were prior to the
change. (Tr. 161-63, 884-91). Also, the non-Timkin shifts resulted in additional overtime
expense due to the method of scheduling. (Tr. 956-963). Other crafts in the plate mill, as well as
the two other main crafts in the maintenance area, had been on the Timkin schedule for a number
of years.
The Area Manager of Maintenance at the plate mill testified that he was
involved in the discussions about the Timkin schedule and that the final decision to implement a
Timkin schedule was made by him in January 1998. The Area Manager is responsible for several
other crafts at the plate mill and all the rest of his crews work a Timkin schedule. He indicated
that the benefits include simplified scheduling and less scheduled overtime. (Tr. 1002-08). He
indicated that it takes some time for the company to implement this type of change. The first
Timkin schedule was posted on April 30, 1998, and the majority of the systems repairmen began
working this schedule the first week of May.
One of the complainants testified that since there are less employees
working the day shift on the Timkin schedule, the number of projects have been reduced, thereby
reducing the amount of overtime available to the systems repairmen. (Tr. 226). However, the
operations manager explained that in regard to overtime there are a myriad of items to consider
that cannot be understood by just viewing raw data. He stated that these factors include such
items as capital projects in which certain employee groups are involved, the workload in each
functional group, customer demand and the need for production, and the breakdown of
equipment. (Tr. 1051-57).
Prior to the implementation of the Timkin schedule, several of the systems
repairmen had worked a schedule similar to the Timkin while stationed in the computer room.
However, they requested a transfer from the computer room so that they could return to their old
work schedule. These repairmen believe they had an agreement with management to retain their
old work schedule and that management failed to comply with this agreement in changing the
repairmen to the Timkin schedule. (Tr. 422-28, 434-35, 1008-13).
[Page 9]
Some of the complainants were told by supervisors that they were put on a
Timkin schedule by management so that their schedules would be in line with the motor
inspector's crew and the millwright's crew and to provide a supervisor on each shift. They stated
that they were also told the Timkin schedule was implemented so that they could report with the
motor inspectors for job assignments, safety contacts, and safe job procedures, but that these
meetings were stopped after two or three weeks. (Tr. 131-132, 229-31). One complainant
testified that he asked a supervisor why the systems repairmen were switched to the Timkin
schedule and was told that apparently their new supervisor did this because he was upset with
some of the repairmen. (Tr. 416-20).
The supervisor of the systems repairmen was not responsible for
implementing the Timkin schedule in 1998. (Tr. 1031). That decision was made by the Area
Manager of Maintenance of the plate mill. (Tr. 1002-1003, 1031). However, the Manager of
Operations had initiated discussions regarding the need for this change in 1997. (Tr. 884).
Employee Concerns
The systems repairmen believe they had been labeled as
"troublemakers" by the company and that they were treated unfairly by their
supervisors. Complainant Marjan Trajkovski even requested a new position in the boiler house
to get out of what he felt was a hostile environment in the plate mill. He initially was granted the
position, then the supervisor of the boiler house showed some hesitancy and wanted to first set
up an interview, which apparently was outside of the normal transfer procedure. This
complainant had a short, informal talk with the supervisor who expressed some concern because
he had heard about some trouble in the plate mill. (Tr. 512-31).
Mr. Trajkovski also felt he was treated unfairly when his previous
supervisor wanted to check his locker before he transferred to the boiler house. (Tr. 519-22).
This supervisor explained that he was unsure of the correct procedure and that when he asked the
systems repairmen's supervisor about this procedure, he was told to check the locker to insure
that none of the equipment of the repair group was being taken to the boiler house. When this
complainant refused to let the supervisor inspect the locker, the supervisor contacted the area
manager and was informed that there was no need for an inspection. (Tr. 1020-22).
Complainants described being threatened by their new supervisor that they
would be placed on the Timkin schedule or be fired if they kept submitting paperwork to him.
They also testified to incidents that they believed demonstrated the company's lack of concern for
their safety. They described an instance in April of 1997 of another supervisor trying to force
them to perform repairs on a laser lens. This job had previously been performed by an outside
contractor, and they refused to do the work until a safe job procedure could be established. (Tr.
61-77, 180-84; 353-55). Complainants also described a supervisor threatening them with losing
their jobs after a grievance was filed with the union over the laser lens incident. (Tr. 269-80).
They also described what they believe to be unfair job assignments such as their supervisor
assigning very heavy work loads to the repairman who is their representative with the NRC and
[Page 10]
OSHA, while others were given very light duties. They complained that in June of 1998, certain
systems repairmen were taken off one job to perform another job which was described as
"nasty." (Tr. 192-198, 316-19; CX 3). Two repairmen also reported an instance in
March or April of 1998, when they were required by their new supervisor to pick up trash and to
do cleaning that was not part of their normal responsibilities. (Tr. 86-95, 361-66, 1035).
The systems repairmen also described instances of being threatened with
losing their jobs if they kept asking questions. (Tr. 116-123, 314-16, 497-501, 563-66). The
complainants also testified that they were told by some of their supervisors that their new
supervisor was "out to see them fail" and "screwing with their drive-in passes
and telephone privileges." (Tr. 291-92, 435-38). Complainants also alleged that they were
threatened by the radiation safety officer on May 5, 1998, with losing their jobs if they kept
pushing the issue of whether it was safe for them to work on the isotope gauge. (Tr. 652-54).
Some of the complainants stated that they did not have problems with their
previous supervisor and that they were never disciplined or questioned about their work before
their new supervisor arrived. (Tr. 335-36). Marjan Trajkovski testified that he held the position
of vicing foreman until the new supervisor took over the systems repair group. He resigned the
position around March of 1997, because he was unable to work under the new supervisor's rules.
(Tr. 471-79). Mr. Trajkovski also stated that the new supervisor complained to him that he
wasn't getting the cooperation he needed to obtain more equipment which could mean more
power to the systems repairmen. This complainant alleged that the new supervisor told him that
he wanted the bickering and complaining for the horn on the isotope gauge to stop or
consequences would be paid. No other safety concerns were discussed with Mr. Trajkovski. (Tr.
502-12).
One of the complainants expressed safety concerns about the removal of
the laser assembly from under the roll line, the location and decibel level of the north gauge horn
and a complaint regarding the video monitors. The first of these complaints took place in late
February or early March 1998. None of these complaints involved any type of radiation exposure
or the isotope gauges. (Tr. 221-24).
The supervisor of the systems repairmen, some of whose actions partially
led to the filing of the complaint involved in this case, was relieved of his responsibility over the
systems repairmen in late November of 1998. (Tr. 1030-38)
Timeliness of the Appeal
The seventeen systems repairmen filed a complaint on June 18, 1998 with
NRC alleging that they were discriminated against by the loss of their drive-in passes and
telephone privileges, and by the implementation of the Timkin schedule and loss of overtime.
The matter was referred to OSHA on June 30, 1998 and an investigation of the complaint was
conducted by that agency over the next six months. The Area Director of OSHA notified U.S.
Steel, as well as the complainants, as a result of the investigation of the agency's determination
regarding the complaint by letter dated December 31, 1998, which was mailed by certified mail
on January 4, 1999. (ALJX 1).
[Page 11]
The determination letter was received by U.S. Steel on January 6, 1999,
and the employer filed a request for a hearing by first class mail on January 8, 1999. (ALJX 3).
U.S. Steel also mailed copies of its appeal to the complainants by first class mail on January 8,
1999. (ALJX 3). Complainants received copies of U.S. Steel's appeal at varying times within
the following week. (Tr. 452, 534, 598-99, 692). U.S. Steel's appeal was received in the Office
of Administrative Law Judges on January 12, 1999. (ALJX 3).
Complainant John Lazur also filed an appeal of the determination by
facsimile on January 13, 1999. (ALJX 2; Tr. 690). The majority of the complainants filed their
appeals by facsimile on that same date with the assistance of Mr. Lazur. (ALJX 2; Tr. 533, 690).
Complainant Michael Johnson's appeal was filed by facsimile on January 14, 1999.
CONCLUSIONS OF LAW
Timeliness of the Appeal
The applicable regulation, 29 C.F.R. § 24.4(d), provides the
guidelines for filing an appeal of the Department of Labor's notice of determination to the Office
of Administrative Law Judges. This section in part provides:
(2) The notice of determination shall include or be accompanied by notice
to the complainant and the respondent that any party who desires review of the
determination or any part thereof, including judicial review, shall file a request for
a hearing with the Chief Administrative Law Judge within five business days of
receipt of the determination. The complainant or respondent in turn may request a
hearing within five business days of the date of a timely request for a hearing by
the other party. If a request for a hearing is timely filed, the notice of
determination of the Assistant Secretary shall be inoperative, and shall become
operative only if the case is later dismissed. If a request for a hearing is not timely
filed, the notice of determination shall become the final order of the Secretary.
(3) A request for a hearing shall be filed with the Chief Administrative
Law Judge by facsimile (fax), telegram, hand delivery, or next-day delivery
service. A copy of the request for hearing shall be sent by the party requesting a
hearing to the complainant or the respondent, as appropriate, on the same day that
the hearing is requested, by facsimile (fax), telegram, hand delivery, or next-day
delivery service.
29 C.F.R. § 24.4(c)(2) and (3).
Complainants, in their motion to dismiss, rely on the decisions in
Webb v. Numanco, L.L.C. , 98-ERA-27 and 28 (ALJ Jul. 17, 1998), vacated on other
grounds ; (ARB 98-149 Jan. 29, 1999); Staskelunas v. Northeast Utilities
Co. , 97-ERA-8 (ALJ Dec. 4, 1997); and Backen v. Entergy Operations, Inc. , 95-
ERA-46 (ARB June 7, 1996). U.S. Steel contends that the complainants' reliance on the
Webb decision is misplaced. It notes that the complainant in that case timely appealed
the April 29, 1998 determination by OSHA on May 6, 1998, but untimely served a copy of that
[Page 12]
appeal on Numanco by first class mail on May 11, 1998. That complainant also failed to serve
the second respondent by any method of service as of January 29, 1998. As correctly noted by
U.S. Steel, the administrative law judge found that:
A party's failure to properly serve an opposing party in accord with the regulations
gives rise to inherent prejudice to the opposing party because the failure of service
affects the opposing party's ability to respond to an appeal by timely cross-appeal
or may cause the party to rely on an OSHA finding which is inoperative.
Webb , supra , Slip Op. at p. 5.
Respondent contends the Webb decision is distinguishable from
this case because the complainant in the Webb decision waited at least five days before
mailing copies of the notice of appeal to the respondents and because neither of those
respondents filed a notice of appeal. U.S. Steel essentially argues that none of the complainants
in this case was prejudiced by U.S. Steel's service of the copies of the notice of appeal by regular
mail on the same date the appeal was mailed to the Office of Administrative Law Judges because
each of the complainants filed his own notice of appeal of the final determination.
I agree with U.S. Steel's position on the Webb case. I can find no
prejudice on the part of any of the complainants by the respondent's timely filing of its notice of
appeal with the Office of Administrative Law Judges by regular mail and by serving copies of the
notice on the complainants in the same manner on the same date. I further conclude that the
Webb case is not controlling simply because I disagree with the conclusions rendered
therein. Rather, I concur with the judge's ruling on respondent's motion for dismissal in
Stoner v. General Physics Corp. , 98-ERA-44 (ALJ Sept. 4, 1998). The respondents in
the Stoner case argued that the Office of Administrative Law Judges did not have
jurisdiction over Mr. Stoner's complaint, although the complainant timely filed a request for a
formal hearing by facsimile with the Office of Administrative Law Judges, because "the
complainant was derelict in failing to serve a copy on the same date and secondly by
failing to serve a copy by the regulatory means specified ." Stoner, Id .,
Slip Op. at p. 2. After discussing the pertinent regulatory provisions and law, the administrative
law judge in the Stoner case rejected the reasoning in the Webb case and relied
on the solution set forth in Jain v. Sacramento Municipal Utility , 89-ERA-39 (Aug. 3,
1989), aff'd , (Sec'y Dec. Nov. 21, 1991). In doing so, the judge in Stoner
explained on page 8 of his opinion that:
[Page 13]
Nor can I find any "inherent prejudice" in a complainant's failure to
properly serve an opposing party with a copy of a request for a hearing. In
Jain , the copying requirements, then in effect, with which the
complainant had not complied, were found to be merely directive rather than
jurisdictional in nature. The jurisdictional requirements of the regulation were
found met by the complainant's filing of a request for hearing with the Chief
Administrative Law Judge. I observe that the present "service"
provision is contained in a paragraph separate from that stating that a failure to
timely request a hearing makes the notice of determination the final order of the
Secretary. Nothing in the regulations indicates that a failure to serve a copy of the
hearing request is either jurisdictional or that such a failure affects the validity of
the filing. Paragraph 24.4(d)(2) only states that failure to timely file a
hearing request will result in the notice of determination becoming the final order
of the Secretary. "Filing" is nowhere equated with sending a copy of
the hearing request to the respondent.
(Footnote omitted).
I further find that the decisions in the Staskelunas and
Backen cases are not supportive of the complainants' position. In Staskelunas v.
Northeast Utilities Co., 97-ERA-8 (ALJ Dec. 4, 1997), the appeal to the Office of
Administrative Law Judges was filed by certified mail and was not received within the time
frame provided in the regulations. Although the complainant in that case used certified mail
rather than the methods of service specifically provided in 29 C.F.R. § 24.4(d)(3), the
appeal was dismissed because it was untimely filed. In doing so, the Administrative Review
Board explained that "[a] complainant who relies on alternative means for delivery,
e.g. , by mail, assumes the risk that the request may be received beyond the due date, and
untimely." Staskelunas , Slip Op. at p. 2. Similarly, in Backen v. Entergy
Operations, Inc. , 95-ERA-46 (ARB June 7, 1996), the notice of appeal was sent by regular
mail and received beyond the time for filing an appeal. The Administrative Review Board noted
that "[t]he law is clear that the time limitation period is to be strictly construed.
Gunderson v. Nuclear Energy Services, Inc. , Case No. 92-ERA-48 (Sec'y Dec. Jan. 19,
1993)." Thus, neither of these cases directly support the argument that a timely filed
request for hearing, received by means other than that specified in the regulations, fails to meet
the filing requirements of an appeal.
Complainants argue that the filing of the appeal by first class mail, and not
by one of the methods listed in the pertinent regulation (fax, telegram, hand-delivery or next-day
service), is a failure to comply with the service requirements. They also contend that copies of
the request for hearing were not filed on the complainants within the applicable time limitations.
They explained in their post-hearing brief that the final determination shall become the final
order of the Secretary of Labor unless it is appealed within five business days of its receipt by the
means specified in 29 C.F.R. § 24.4. Complainants therefore request that the respondent's
appeal be dismissed. (ALJX 6; Tr. 15-22).
[Page 14]
The regulation at issue, 29 C.F.R. § 24.4, was amended on March
11, 1998. The time for filing an appeal was changed from five calendar days to five business
days, and the means of service were set out to include "facsimile (fax), telegram, hand
delivery, or next-day delivery service." Other language was added regarding the manner of
sending notice of the appeal to the other parties in the proceeding. The legislative history of this
amendment explains that the changes regarding the means of service were added, "to
conform the regulations to current business practices." 63 Fed. Reg. 6614 at 6617.
Although first class mail is not listed as an acceptable means of service, there is no indication of
an intent not to consider an appeal, which is filed in a timely manner, merely because it was filed
by means other than specified in the regulations.
There are no cases specifically involving the issue of whether an appeal,
timely filed with the Office of Administrative Law Judges and the other parties, by means other
than that specified in 29 C.F.R. § 24.4(d)(3), is acceptable. Several cases support the
position that the time limit for the filing of a request for hearing must be strictly construed,
e.g. Degostin v. Bartlett Nuclear, Inc. , 98-ERA-7 (ARB May 4, 1998); Backen v.
Entergy Operations, Inc. , 95-ERA-46 (ARB June 7, 1996). I reiterate, however, that these
cases focus on the timing of the appeal, not the means of service. It is difficult to see why the
means of service is even relevant, as long as the appeal is timely. Although the acceptable means
of service are specified in the recent amendment to the regulations, I reiterate that there is no
evidence that this was done to prevent regular mail as a means of service if the appeal reaches the
Office of Administrative Law Judges in a timely manner. I also reiterate that the Administrative
Review Board indirectly indicated its position on this issue in Staskelunas v. Northeast
Utilities Co., 97-ERA-8 (ARB May 4, 1998) when it explained that "[a] complainant
who relies on an alternative means of delivery, e.g. , by mail, assumes the risk that the
request may be received beyond the due date, and untimely." I believe this to be the best
approach, as there can be no prejudice to the other parties if the Office of Administrative Law
Judges and the opposing party is served with the notice of appeal within the time limits provided
in the regulations. Quite simply, the manner of service should be deemed irrelevant as long as
service is timely. Thus, I deny the complainants' motion to dismiss the respondent's notice of
appeal.
Protected Activity and Adverse Work Actions
Generally, to prevail on a claim under the ERA, the complainant must
establish a prima facie case of discrimination by evidence that he or she was engaged in
activity protected by the ERA and that adverse action was taken against the employee because of
protected activity. Kahn v. U.S. Secretary of Labor , 64 F.3d 271, 277-79 (7th Cir.
1995). Once complainant meets this initial burden, the employer has the opportunity to rebut this
finding by establishing the adverse action was motivated by a legitimate, nondiscriminatory
reason. The complainant then has the opportunity to prove that the employer's reasons for the
[Page 15]
adverse action were actually a pretext for retaliation. However, in cases where the employer
asserts a non-discriminatory reason for discharge, the prima facie step can be bypassed,
and I can proceed directly to an inquiry into whether the employer's reason is pretextual.
Carroll v. Bechtel Power Corp., 91-ERA-46 (Sec'y Feb. 15, 1995), aff'd sub
nom , Carroll v. U.S. Dept. of Labor, 78 F.3d 352, 356 (8th Cir. 1996); Adjiri v.
Emory University, 97-ERA-36 (ARB July 14, 1998).
Initially, I note that my jurisdiction is limited by law in this case to
deciding only whether the complainants were discriminated against because they engaged in
protected activity under the ERA. I am limited to deciding only this issue and cannot consider
whether the employer acted properly in making decisions unrelated to the complainants'
protected activity. Likewise, I do not have the authority to decide whether the complainants'
supervisors acted improperly unless those actions were related to the protected activity under the
ERA. My inquiry must focus solely on whether the complainants' protected activity was the
reason for the adverse actions taken by U.S. Steel.
The parties dispute whether complainants engaged in any protected activity
prior to the time the complainants were informed of the missing dosimeter badges. Specifically,
the parties disagree on whether the complainants' requests for badge information prior to April
29, 1998 constitute protected activity. Not every act an employee commits under the auspices of
safety is protected under the whistleblower provisions of the ERA. Stone & Webster
Engineering Corp. v. Herman , 115 F.3d 1568, 1574 (11th Cir. 1997). Raising particular,
repeated concerns about safety issues that rise to the level of a complaint constitutes protected
activity under the ERA. Bechtel Construction Co. v. Secy. of Labor , 50 F.3d 926, 931
(11th Cir. 1995). However, making general inquiries regarding safety issues does not qualify as
protected activity. Id.
In this case, some of the complainants requested their dosimeter badge
information prior to the April 29, 1998 meeting. However, there is no evidence that these
requests were motivated by specific, particular safety concerns. There was no evidence that the
complainants made more than a general request for this safety information. While Jason Lax
made a second request to another supervisor after not receiving the information, none of the
complainants stated that they continued to follow up on their requests after they did not receive
the information. There did not appear to be any particular, specific concern for safety that
prompted these requests. Jason Lax stated he requested the information because he had asked for
it in the past and hadn't seen a report in a while. Marjan Trajkovski stated that he had spent a
substantial amount of time on the gauges and requested the information because he "just
wanted to know."
While it is possible that requests for dosimeter badge information could
constitute protected activity under different circumstances, I find the requests in this case do not
rise to that level. The evidence indicates the requests were general inquiries for safety
information similar to the requests the repairmen made to their prior supervisor and were not
specific, repeated requests or complaints because of a particular concern. For this reason, I find
these requests do not constitute protected activity under the ERA.
[Page 16]
Complainant John Lazur also expressed safety concerns regarding the
removal of the laser assembly from under the roll line, the location and decibel level of the north
gauge horn, and the video monitors. However, Mr. Lazur stated that these complaints did not
involve the isotope gauges or radiation. In a retaliation claim under the ERA, the protected
activity must relate to nuclear or environmental concerns or must further the purposes of that act.
See 42 U.S.C. § 5851(1)-(3); 29 C.F.R. § 24.2; Tyndall v. United States
Environmental Protection Agency , 93-CAA-6 (ARB June 14, 1996). The safety complaints
made by Mr. Lazur do not meet these qualifications as they are unrelated to the isotope gauges or
radiation.
Complainants allege other instances of protected activity which occurred
after the April 29, 1998 meeting. However, the adverse actions alleged by complainants took
place prior to most of these instances. This protected activity included repeatedly requesting
badge information out of a particular concern, calls and complaints to the NRC, and sharing of
group safety concerns after they were informed the badges had been lost. Safety concerns were
also expressed to management such as reducing work on the gauges after the June 18, 1998
meeting, responses to the Huber report, and concerns regarding the wiring of the safety
mechanisms of the isotope gauges. These activities clearly qualify as activity which is protected
under the ERA. However, any protected activity must have occurred prior to the retaliatory
conduct in question to establish a causal relationship. For the following reasons, I find that the
protected activity took place after the specific acts of alleged discrimination and all occurred after
these adverse actions were first set in motion by the employer.
First, U.S. Steel has demonstrated that the decision to restrict drive-in
passes was made long before the systems repairmen were aware of the missing badge
information. Moreover, this decision was made as part of a plant-wide reduction in drive-in
passes. The complainants were a small part of eighty-five employees who were not issued these
passes in the second quarter of 1998. The evidence documents an ongoing attempt by
management to reduce the number of vehicles entering the U.S. Steel plant and a letter outlining
the conditions under which passes would be issued in the future was written to all employees
prior to the change. I also note that some of the systems repairmen who met the required medical
criteria were issued drive-in passes.2
Again, I emphasize that I am not in a position to consider whether the systems repairmen need
their automobiles to perform their jobs, or whether the employer made the correct decision in
eliminating the drive-in passes. I am limited by jurisdiction to deciding only whether the drive-in
privileges were taken away from the complainants as a result of their protected activity, and the
evidence simply does not support this allegation.
Secondly, U.S. Steel has established that the reduction in the level of
telephone service available to the systems repairmen was part of a division-wide attempt to
reduce telephone costs. The evidence proves that U.S. Steel's management was reviewing
individual costs within the company in 1997 and that changes in telephone usage in April of
1998 were made as a result of that analysis. As with the drive-in passes, the systems repairmen
[Page 17]
were only a small part of the employees whom the changes affected. The level of service was
changed on about fifty of the telephones, only four of which were under the responsibility of the
systems repairmen. Whether the complainants need greater telephone access or whether the
abuse of the telephones justified the decisions made by U.S. Steel is not the focus of my
consideration. The only factor for me to address, given my limited jurisdiction, is whether the
evidence establishes that U.S. Steel decided to reduce telephone access of the systems repairmen
in response to their involvement in protected activity. The evidence in this regard proves the
changes were for legitimate business reasons and that the decision to implement the changes took
place prior to the protected activity.
Next, the complainants allege they were placed on the Timkin schedule
and that their overtime was reduced as a result of their protected activity. However, the evidence
in this regard proves the scheduling decision was made as a result of management's desire to cut
costs and to cover all of the shifts with a greater number of competent employees. The majority
of the other crafts in the plate mill had been switched to a Timkin schedule years before and
management recognized the advantages to this type of scheduling. Part of the reasoning for this
change was to reduce the amount of overtime hours. The evidence proves the decision to change
the work schedule of the systems repairmen was made in January of 1998 by the Area Manager
of Maintenance after considerable discussion with the operations manager. The change was
coincidentally made effective on April 30, 1998 and unquestionably was not due to any protected
activity that occurred in that month.3
Rather, I find that U.S. Steel has established a legitimate business reason for the change to the
Timkin schedule, which resulted in a reduction in overtime for the complainants. The evidence
presented by the employer on this area of alleged discrimination, as well as that offered in regard
to the drive-in passes and telephone privileges, is clear and convincing that such action was
motivated solely by business considerations.
Since the employer has provided a legitimate business reason for each of
the four areas of alleged retaliation, I must now determine whether the employer's stated reason
was a pretext for discrimination. Carroll v. Bechtel Power Corp. , 91-ERA-46 (Sec'y
Feb. 15, 1995), aff'd sub nom , Carroll v. U.S. Dept. of Labor , 78 F.3d 352 (8th
Cir. 1996). Complainants allege that the evidence of the relationship with management,
disparate treatment and management response to environmental concerns all constitute evidence
that the employer's motivation was retaliation.
Complainants initially point to the testimony of the Manager of Operations
that in general he has no problems with the quality of work or the personalities of any of the
service repairmen. They go on to note that there were no difficulties in the relationship between
management and the systems repairmen until encounters with their new supervisor. However, I
find that this evidence does not indicate that the relationship with management changed after
safety issues were raised, but only that the relationship changed with the appointment of a new
supervisor for the systems repairmen. The change in relationship does not evidence any type of
retaliatory motivation and instead tends to indicate that the relationship problems were grounded
in personality conflicts that began with the arrival of the new supervisor.
[Page 18]
Complainants also allege disparate treatment by the employer as evidence
of a retaliatory motive. In particular, complainants maintain that Mr. Pineda's assignment to
"back turns" after requesting his badge information, requiring two of the repairmen
to pick up trash, and the unfair distribution of work assignments evidence management's intent to
discriminate. These instances may show these complainants were treated differently from other
repairmen, but do not prove that as a group the systems repairmen were treated differently than
other similarly situated employees. Complainants also allege that the technicians in the boiler
house to which Mr. Trajkovski was transferred, are employees in similar positions, but that they
maintained their drive-in privileges. However, the evidence shows that these technicians work in
a different part of the facility and only work day shift. Thus, the decision to let them retain their
drive-in privileges was to make it easier for them to have access to the plant in case an
emergency would arise during the back turns. With respect to the incidents involving the picking
up of trash by some of the systems repairmen, this took place prior to the time that the systems
repairmen were made aware of the missing badge information; thus, it could not have been in
retaliation to their involvement in protected activity. Moreover, I find that the employer has
established legitimate business reasons for its actions and has demonstrated that all of the
changes perceived to be adverse work actions were set in motion long before management or the
systems repairmen were aware of the missing dosimeter badges. I therefore find that the
complainants have not met their burden of proving that the employer's explanation for its actions
was in reality a pretext for discrimination.
Complainants also allege that a comparative analysis of the schedules
worked by the systems repairmen, motor inspectors and millwrights shows the repairmen were
treated differently in the application of overtime. The evidence indicates that in reality the loss
of overtime was due to several factors and that the implementation of the Timkin schedule
automatically caused a reduction in "scheduled" overtime. Moreover, there was a
reduction in the number of work projects because there were more people on back turns and less
people working the day shift when such projects usually arose. Additionally, the operations
manager testified to other factors which must be considered in looking at the reduction in
overtime. I therefore find there is no evidence to indicate that the reduction of overtime of the
systems repairmen was motivated by retaliation for safety concerns even if the level of overtime
for these repairmen is different from other groups in the plate mill.
The systems repairmen also claim that the response of management to
safety concerns indicates the existence of a retaliatory motive. Specifically, they note the new
supervisor's statement that Mr. Pineda was acting like another employee who always raised safety
concerns; that the statement by this supervisor that they would continue to work a Timkin
schedule as long as the paperwork kept piling up on his desk; and, the Safety Radiation Officer's
alleged threat of termination if they kept pushing the issue of whether they should work on the
isotope gauge after being advised of the missing dosimeter badges. As discussed above, the
[Page 19]
supervisor of the systems repairmen was not responsible for the change to the Timkin schedule,
although the complainants allege that this supervisor claimed he had such power. I recognize
that the statements of these individuals tend to indicate some degree of a lack of concern for
safety by those persons. However, the evidence proves the comments were not made by persons
who were responsible for the adverse work actions in question, and there is no evidence that the
persons responsible for making these decisions either had a lack of concern for safety or that they
even treated the subject lightly.
In conclusion, I find the alleged retaliation by the employer was the result
of business planning that commenced long before the systems repairmen became aware that their
dosimeter badge information was missing. The complainants' drive-in passes were eliminated on
April 1, 1998, after consideration by the company which began around November of the
preceding year. Similarly, the change in the telephone access took place at the end of April or the
first few weeks of May, but was the result of management's evaluations of telephone usage on a
plant-wide basis that commenced in the summer of 1997. I additionally emphasize that the
systems repairmen were only a small part of the total changes made by U.S. Steel in the use of
drive-in passes and telephones. Finally, the evidence clearly shows that the discussions regarding
changing the systems repairmen to the Timkin schedule started in 1997 and the decision was
made in January of 1998, before anyone, including management, was aware of the missing
badges.
Assuming arguendo that the complainants' general requests for
badge data could be held to constitute activity protected by the ERA, the evidence convinces me
that the work actions at issue in this case were taken solely for business reasons. There is no
evidence proving the supervisory personnel to whom the requests were made were responsible
for the work actions. Also, the record does not establish that those responsible for the changes
were aware of the requests.
I should finally add that complainants have discussed other conversations,
encounters and situations with management in their post-hearing briefs which they feel
demonstrate that they were treated unfairly and without respect. I have not addressed these
allegations because the evidence does not support any type of connection between these events
and the protected activity of the systems repairmen. As I indicated initially, my jurisdiction in
this case is limited to only the question of whether protected activity played a role in the changes
made by U.S. Steel. The complainants simply have not proven that such activities were in any
way related to these changes.
There is no question that the implementation of the work actions
unfortunately coincided to some extent with the discovery of the missing dosimeter badge
information. Also, the lack of discussion or communication by management with the systems
repairmen about the impending changes, together with the hostile environment created by
conflicts with the new supervisor about various non-radiation issues, understandably led the
systems repairmen to question the reasons for the job changes. The supervisor's apparent attempt
[Page 20]
to make the systems repairmen believe that he was responsible for these job actions also added to
the complainants' distrust of the company's need to make these changes. Notwithstanding, the
evidence unequivocally shows that management took all of the actions for legitimate business
reasons and that none of them was motivated by the complainants' safety concerns. While the
systems repairmen may not like these job changes, they perhaps now understand why
management implemented them. Hopefully, understanding on both sides, together with the
supervisory change over the systems repairmen, will allow these parties to move forward and
resolve such conflicts amicably in the future.
RECOMMENDED ORDER
For the above-stated reasons, IT IS HEREBY RECOMMENDED to the
Secretary of Labor that the complaint of the seventeen named systems repairmen be dismissed.
DONALD W. MOSSER
Administrative Law Judge
NOTICE: This Recommended Decision and Order will automatically become the final
order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely
filed with the Administrative Review Board, United States Department of Labor, Room S-4309,
Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210. Such a
petition for review must be received by the Administrative Review Board within ten business
days of the date of this Recommended Decision and Order, and shall be served on all parties and
on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.8 and 24.9, as
amended by 63 Fed. Reg. 6614 (1998).
[ENDNOTES]
1 References in this decision to ALJX,
CX and RX pertain to exhibits offered by the administrative law judge, complainants and
respondent, respectively. The transcript of the hearing is cited as "Tr." and by page
number.
2 I found it unnecessary to specify
which complainants retained their drive-in passes because I concluded this work action was not
discriminatory.
3 I again note that not all of the
complainants were affected by this job action but I made no specific findings in this regard
because of my conclusion that this action was not discriminatory.