U.S. Department of Labor Office of Administrative Law Judges
1111 20th Street, N.W.
Washington, D.C. 20036
Case No. 80-ERA-1
In the Matter of
RONALD A. KING
Petitioner
v.
TENNESSEE VALLEY AUTHORITY
Respondent
Appearances:
Ronald A. King, pro se Box 335, Rt. 1, Pierce Road
Birchwood, Tennessee 37902
Maureen H. Dunn, Esq.
Tennessee Valley Authority
Knoxville, Tennessee 37902
For the Respondent
Before: EVERETTE E. THOMAS
Associate Chief Administrative Law Judge
RECOMMENDED DECISION
Statement of the Case
This is a proceeding under the Energy Reorganization Act
of 1974, as amended (42 U.S.C. § 5851), hereafter called the Act.
The Act (42 U.S.C. § 5851(a)) prohibits a Nuclear Regulatory
commission (NRC) licensee from discharging or discriminating
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against an employee who has commenced a proceeding to carry out
the purposes of the Act. The Act is implemented by regulations
designed to protect so-called "whistle-blower" employees from
retaliatory or discriminatory actions by their employers.
45 Fed. Reg. 1836 (January 8, 1980) (to be codified at 29 C.F.R.
Part 24). An employee who believes that he or she has been
discriminated against in violation of that section may file a
complaint within 30 days after the violation occurs.
Ronald A. King, Petioner, filed a Complaint dated
November 27, 1979, with the Department of Labor against the
Tennessee Valley Authority (TVA), Respondent, with whom he
had formerly been employed as a painter at the Sequoyah Nuclear
Plant. Petioner alleges that he was refused re-employment
because he had filed complaints against TVA with the Nuclear
Regulatory Commission on three separate occasions. The Wage
and Hour Division conducted an investigation and concluded that
Mr. King had not been discriminated against in violation of the
statute. That decision was appealed to the Department of
Labor.
Pursuant to a notice issued February 4, 1980 a hearing was
held on February 19, 1980 in Knoxville, Tennessee. Petitioner
was not represented by counsel at the hearing, although he was
advised of his right to representation. Both parties were afforded
full opportunity to be heard, to adduce evidence and to examine and
cross-examine the witnesses. At the close of the hearing the court
requested briefs from both parties. Counsel for TVA submitted a
post-hearing brief, and Mr. King submitted statements on his own
behalf written by himself and James Farrow, President of Painters
Local Union 226.
Based upon the entire record, including my observation of
the witnesses and their demeanor, and from all of the testimony
and evidence taken at the hearing, I make the following findings
and conclusions:
Findings of Fact
1. The Respondent TVA is a licensee of the Nuclear
Regulatory Commission, licensed by the Federal Government to
build nuclear plants.
2. Ronald A. King was employed by TVA in August of 1974
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as a painter at the Sequoyah Nuclear Plant in Daisy, Tennessee.
His duties included painting and sandblasting. On July 11, 1978
he was fired for bringing a firearm onto the project in violation
of a posted job rule.
3. On August 29, 1979 a grievance hearing concerning the
propriety of the termination was held at Mr. King's request,
at which time he admitted openly that he had brought a gun onto
the grounds of of Sequoyah Nuclear Plant. Testimony was given to
the effect that it was TVA policy and practice to uniformly
discharge any employee who violated this rule, regardless of
the reason given for the violation. Management stated that this
was the sole reason for Mr. King's discharge. Prior to the
hearing Mr. King refused a settlement offer which would have
allowed him to be rehired after 90 days. Petitioner failed to
prove that he had been the target of unusual treatment or
discrimination on the part of management, and his discharge
was ultimately upheld. Petitioner did not appeal this decision.
It is the findings of this court that Mr. King was discharged
for cause, and has already been afforded the opportunity to be
heard on this issue.
4. Four months after his discharge, on November 10, 1978
Petioner applied for re-employment at the Sequoyah Nuclear
Plant and was rejected. According to Petitioner, he was given
no reason for the refusal, but merely told to get off the project
premises.
5. Approximately one year later on November 7, 1979
Petitioner was again turned down when he applied for employment
at the Sequoyah project. Jere M. Ballentine, the power plant
supervisor, stated in his letter to Petitioner on December 5, 1979
that the decision not to select him for employment was based on
his prior termination arising out of the firearm incident. He
specifically disavowed that the decision had been influenced in
any way by correspondence Petitioner had had with the Nuclear
Regulatory Commission, and stated that his first knowledge of
such correspondence occurred when Petitioner enclosed copies of
his letters to the NRC with his November 14, 1979 letter to
Ballentine.
6. Petitioner's third application for re-employment with
TVA occurred on November 26, 1979 at the Watts Bar Nuclear Plant.
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He was turned down again, and told the reason was his "O-3"
classification. The Personnel Director at TVA, Mr. Joe Erpenback,
testified that this classification is used on TVA's monthly
employment suitability lists, to alert the employing office that
a former employee was previously discharged, or resigned just
prior to discharge. Mr. Erpenback further testified that an
"O-3" classification is not a bar to future employment.
7. On his fourth application, in February of 1980, Petitioner
was finally rehired by TVA as a painter at its Watts Bar Nuclear
Plant.
8. Prior to his discharge, Petitioner had on several
occasions complained to the NRC about the quality of certain work
being performed at the Sequoyah Nuclear Plant, which he believed
might violate the NRC's standards imposed on nuclear power plants
the reason given for the violation. Management stated that this
was the sole reason for Mr. King's discharge. Prior to the
hearing Mr. King refused a settlement offer which would have
allowed him to be rehired after 90 days. Petitioner failed to
prove that he had been the target of unusual treatment or
discrimination on the part of management, and his discharge
was ultimately upheld. Petitioner did not appeal this decision.
It is the findings of this court that Mr. King was discharged
for cause, and has already been afforded the opportunity to be
heard on this issue.
4. Four months after his discharge, on November 10, 1978
Petioner applied for re-employment at the Sequoyah Nuclear
Plant and was rejected. According to Petitioner, he was given
no reason for the refusal, but merely told to get off the project
premises.
5. Approximately one year later on November 7, 1979
Petitioner was again turned down when he applied for employment
at the Sequoyah project. Jere M. Ballentine, the power plant
supervisor, stated in his letter to Petitioner on December 5, 1979
that the decision not to select him for employment was based on
his prior termination arising out of the firearm incident. He
specifically disavowed that the decision had been influenced in
any way by correspondence Petitioner had had with the Nuclear
Regulatory Commission, and stated that his first knowledge of
such correspondence occurred when Petitioner enclosed copies of
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his letters to the NRC with his November 14, 1979 letter to
Ballentine.
6. Petitioner's third application for re-employment with
TVA occurred on November 26, 1979 at the Watts Bar Nuclear Plant.
He was turned down again, and told the reason was his "O-3"
classification. The Personnel Director at TVA, Mr. Joe Erpenback,
testified that this classification is used on TVA's monthly
employment suitability lists, to alert the employing office that
a former employee was previously discharged, or resigned just
prior to discharge. Mr. Erpenback further testified that an
"O-3" classification is not a bar to future employment.
7. On his fourth application, in February of 1980, Petitioner
was finally rehired by TVA as a painter at its Watts Bar Nuclear
Plant.
8. Prior to his discharge, Petitioner had on several
occasions complained to the NRC about the quality of certain work
being performed at the Sequoyah Nuclear Plant, which he believed
might violate the NRC's standards imposed on nuclear power plants
through their quality assurance program. Petitioner was specifically
concerned that the protective coating required to be painted on
the piping system inside the plant was inadequate and not up to
specifications. In response to these reports, the NRC sent
personnel to make on-site inspections. Letters were sent to
Mr. King by the NRC on February 7, 1979 and May 26, 1978 giving
the results of those inspections. In essence, although the
painting in the plant was found to be deficient in the ways
described by Mr. King, the NRC did not find that the careless
painting effected the health and safety of the public, and
according to their rules no actual violations had occurred. The
letter from the NRC on May 26, 1978 also mentioned that they had
notified the U.S. Occupational Safety and Health Administration
(OSHA) concerning the portion of Petitioner's Complaint which
dealt with worker safety. Although OSHA acknowledged receipt of
the complaint on August 14, 1978, there is no indication in the
record as to whether a violation was ever found.
9. The issues to be determined in this case are:
a) whether Petitioner is an employee entitled to protection
under the Act;
b) whether Petitioner's Complaint under the Act was timely
filed;
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c) whether Petitioner was denied re-employment as a result
of discriminatory action taken by TVA in response to his
complaints filed against them with the NRC;
or
whether Petitioner was denied re-employment as a result
of his prior discharge from TVA for bringing a firearm
onto the project.
Conclusions and Discussion
1. The statute which gives rise to this proceeding protects
employees from discriminatory action directed toward them as a
result of certain endeavors to pursue its enforcement. Section
5851(a) of 42 U.S.C. provides, in pertinent states as follows:
(a) No employer, including a Commission licensee, .... may
discharge any employee or otherwise discriminate Against
any employee with respect to his compensation, terms,
conditions, or privileges of employment because 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 Act
or the Atomic Energy Act of 1954, as amended.
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This section was enacted November 6, 1978, four months after
Petitioner's discharge by TVA. I find nothing in the Act
which indicates that this section is to be applied retroactively
to persons whose employment ended prior to the enactment of the
statute; likewise I find nothing to indicate that this section
is to be applied to former employees who were discharged for
cause.
Petitioner attempted to raise the issue of his July 11, 1978
termination from TVA at the hearing, but the issue is not properly
before the court. As stated previously in the findings of fact,
Petitioner had the opportunity to contest his termination at a
grievance hearing. This court has found that he was discharged
for cause, specifically, for a firearm violation.
The threshold question, is whether Petitioner is an
"employee"
entitled to coverage under the Act. The regulations protecting
so-called "whistle blower" employees from discriminatory actions
by their employers under six federal acts, including the Energy
Reorganization Act of 1974, are found in 45 Fed. Reg. 1836
(January 8, 1980). Section 24.3 of the Regulations states as
follows:
(a) Who may file. An employee who believes that he or she
has been discriminated by an employer in violation
of any of the statutes listed in § 24.1(.a) may file, or
have another person file on his or her behalf, a complaint
alleging such discrimination.
Petitioner filed his Complaint with the Department of Labor
on or about November 28, 1979, sixteen months after his discharge
from TVA employment. In his Complaint Petitioner admits that
he was discharged for carrying a gun an the project.
The language of the statute clearly refers to a person who
is an "employee", not to an individual who is seeking to become
employed. I conclude that Petitioner does not have standing as
an employee under the Act to challenge TVA's refusal to rehire
him.
2. Even if Petitioner had been found to be an employee
entitled to protection under the Act, the implementing regulations
state that a complaint shall be filed within 30 days after the
occurrence of the alleged violation. Petitioner was discharged
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on July 11, 1978, four months prior to the enactment of the
statute and sixteen months prior to the filing of his Complaint
with the Department of Labor. Petitioner's three unsuccessful
attempts at re-employment occurred November 10, 1978, November 7,
1979 and November 26, 1979. Clearly only the past two incidents
can be considered timely raised by the Complaint, and Petitioner
is without standing to raise them.
3. Finally, even if Petitioner were determined to be a
protected employee who had timely filed a Complaint, his
allegations of discrimination by TVA have not been substantiated in
the record, and his claim would fail for lack of merit.
The Complaint mentions the various reports Petitioner had
filed with the NRC and OSHA, and briefly describes Petitioner's
unsuccessful attempts at applying for re-employment. Petitioner
states that he was informed that he was not re-hired because he
was a "troublemaker", and implies that this alleged blacklisting
was a result of his complaints to the NRC.
There is no persuasive evidence in the record to indicate
that the TVA officials involved in the employment process considered
Petitioner's NRC complaints in reaching their decision not to
re-hire him. Personnel officers testified that such complaints
are not made a part of an employee's record, and that they did
not have knowledge, or have reason to have knowledge of these
complaints. Petitioner's personnel record and TVA's employment
suitability lists did alert the employment offices of Petitioner's
prior "discharge for unsatisfactory conduct in the work area."
On the first three occasions, other available applicants were
deemed more qualified than Petitioner, and were preferred for
employment. On the fourth occasion the applicant pool was
smaller, and Petitioner was re-hired. It is the opinion of the
court that the decision of TVA officials not to re-hire Petitioner
in the first three instances was based on legitimate management
decisions, and not on any retaliatory motives caused by the
complaints Petitioner filed with the NRC.
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Recommended Order
It is therefore recommended that this Complaint be dismissed
for lack of jurisdiction over the person of Mr. Ronald King, for
the reason that he is not an "employee" entitled to protection
under 42 U.S.C. 5851.