The Complainant, was employed by the Respondent, Chicago Bridge and Iron Company, on September 15, 1980 to work on the Vermont-Yankee nuclear power plant. The Complainant welded and fitted pipe inside the plant's cooling system. A changing area was located just outside the work area, where the workers changed to protective clothing before entering the job site. On October 17, 1980, the Complainant and others questioned an inspector from the Nuclear Regulatory Commission at the plant, concerning radiation exposure in the changing area. The Complainant testified that subsequently he was told by both his foreman, and the union steward that the night supervisor, Howard Hook, wanted him fired for speaking to the government safety inspector. The foreman verified Complainant's testimony while Hook denied that allegation. As a result of the employees speaking to the inspector a survey was conducted by the government during the period of October 17 thru the 21st. The inspection revealed that radiation in the changing area was within acceptable limits but a protective covering was put on a pipe.

    On approximately October 26, 1980 Complainant finished working and began to change clothes in the changing area when

he remembered leaving a welding rod in the work area. Complainant was about to go back for it when his helper volunteered to retrieve the rod because he was still dressed in protective clothing. The helper retrieved the rod, but was stopped from returning it to its proper station by a weld pusher, who informed him that he was not authorized to return the rod. The pusher took the rod and returned it to the rod station attendant. The pusher testified that only the welder, the rod station attendant and himself were authorized to touch the wire. Subsequently, Complainant was informed by his foreman that he had been fired for leaving his rod in the work area. Howard Hook, the night supervisor, made the decision to fire Complainant.

    The parties agreed that there was a general problem with leaving weld wire in the work area. The Complainant testified that he received instructions to make sure he brought the welding rod out of the cooling system and not to leave it laying around. He was aware of an NRC rule requiring that the wire he accounted for. The day before Complainant's termination, Charles McCroy, a boilermaker was fired for failing to return his welding rod. Howard Hook and Stephen Crain, the Employer's contract supervisor, both testified that failure to follow the established safety procedures would jeopardize their license.

    The Respondent first alleges that the Complainant has failed to state a proper cause of action for which relief may be granted under 42 U.S.C. 5851. Section 5851 states, in pertinent part, that no Employer may discharge any employee because that employee

"(1) commenced, caused to be commenced, or is about to commence a proceeding under this chapter ... or a proceeding for the administration or enforcement of any requirement imposed under this chapter...."

The record reflects that Complainant spoke to an inspector of the Nuclear Regulatory Commission (N.R.C.) concerning possible safety violations at his work site. In response to the Complainant's concerns, an inspector of the nuclear plant was made by the N.R.C. Complainant asserts that he was discharged for voicing his concerns.

For the purposes of § 5851, Complainant is found to have "caused a proceeding to be commenced" by having caused an NRC inspection of the nuclear plant.

    Proof of discrimination, in violation of the Act involves a two-step process. The employee must first show a discriminatory act by the Employer. The essence of discrimination is treating like individuals differently. Once discrimination is proven, the employee must show discriminatory animus or intent.

    Complainant has failed to show that his termination was discriminatory in that he was treated differently from other individuals. The Employer alleges that Complainant was terminated for leaving his welding rod at the job site. Another employee, Charles McCroy failed to return his welding rod after use and was also terminated. There is no evidence that McCroy spoke to the inspector. Thus, the record reflects that Complainant was treated no differently than the other individual in a similar position. While testimony indicated that many employees were leaving welding rods at the work site, there was no evidence that these individuals were specifically known to Employer. There is no evidence that these individuals would not have been fired if they had in fact been known to Employer. Again, another employee, known to the Employer to be guilty of such conduct, was terminated also.

    Furthermore, Employer is found to have had a legitimate purpose in terminating Complainant. Regulations at 10 C.F.R. Part 50, App. B require that quality assurance criteria be set up for all nuclear power plants. The regulations make clear the need for stringent guidelines to adequately protect against the potential dangers of nuclear radiation. The regulations require that measures be established for identification and control of materials to prevent the use of incorrect or defective parts. Measures must also be taken "to assure that special processes, including welding...are controlled and accomplished by qualified personnel using qualified procedures..." 10 C.F.R. Part 50 (IX). Stephen Crain, the contract supervisor for Employer testified that the company drafted a Quality Assurance Manual in accordance with the requirements of 10 C.F.R. and it is made a part of their work contracts. The Complainant knew that he was required by regulations to return his equipment. He neglegently failed to return his welding rod, which could clearly be deemed a serious breach of control and identification requirements, warranting dismissal. Thus, the Employer had a legitimate reason for terminating the Complainant.

    Lawrence P. Fortier, Complainant's foreman, testified that a short time after Complainant spoke to the NRC inspector, Howard Hook, the night supervisor, spoke to Fortier about wanting to terminate Complainant. Howard Hook denied that allegation, but even accepting it as true, Complainant would still fail in this complaint. In Mount Healthy City School District Board of Education v. Doyle, 429 U.S. (1977), the Supreme Court established a causation test in alleged dual motive cages. Where, as in the instant case an employee engages in protected behavior (conversation with the NRC inspector) and is subsequently terminated, that termination will nevertheless be justified if there exists independent and proper grounds for said termination. Otherwise, the employee will be placed in a better position for having in the protected behavior. An employee "ought not to be able, by engaging in such conduct (protected behavior) to prevent his Employer from assessing his performance record and reaching a decision...on the basis of that record, simply because the protected conduct makes the Employer more certain of the correctness of its decision. Id at 286. As previously mentioned, Complainant's failure to return his equipment to its proper station gave the Employer justifiable grounds for his termination. Therefore even if Howard Hook's actions were in part motivated by Complainant's conversation with the NRC inspector, his termination is nevertheless nondiscriminatory and the complaint must fail.

    Since Complainant did not prevail no attorney's fees or costs are assessed.

    It is hereby recommended that the complaint of Robert M. Jaenisch be dismissed with prejudice.

       JOHN W. EARMAN
       Administrative Law Judge

Dated: 18 MAY 1981
Washington, D.C.

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