Case No. 81-ERA-5

In the Matter of

ROBERT N. JAENISCH
    Complainant

    v.

CHICAGO BRIDGE AND IRON COMPANY
    Respondent

    Complainant, Robert N. Jaenisch, was employed as a welder at the Vermont Yankee Nuclear Power Plant by the Chicago Bridge and Iron Company, on October 26, 1980, at which time he was terminated. Complainant alleges his removal was because he talked to a representative of the Nuclear Regulatory Commission, which is a protected activity under 42 U.S.C. § 5851. The Employer contends that Complainant was removed for a violation of work rules in that he failed to properly return a welding rod.

    On May 18, 1981 this court recommended that the Secretary of Labor dismiss the complaint. The Secretary issued a Memorandum Decision on june 25, 1981 in which he followed the recommendation. The Court of Appeals for the Second Circuit vacated the Secretary's decision on June 23, 1982 in an unpublished Order and remanded the case to the Secretary. On March 30, 1983 the Secretary remanded the matter to the office of Administrative Law Judges.

    After correspondence with the parties an Order to Show Cause as to why this matter should not be decided on the existing record was issued. The parties made written argument. It is found that no good cause has been shown as to why this matter should not be decided on the existing record.

    We did not intend our recommendation to the Secretary of Labor to be as interpreted by the Circuit Court. Apparently, it was not clear that "whistleblowing" was not considered to be involved in the removal. However, since the Circuit Court said the Administrative Law Judge correctly identified this case as one of "dual motive" discharge, the "but for" test of Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287 (1977), will be applied.

    As a dual motive discharge the burden is upon the Employer to show that it would have terminated Complainant even if the protected activity had not occurred. Chicago Bridge and Iron Company showed that failing to turn in weld wire was considered an offense for which an employee would be terminated and everyone knew this to be the situation. Lawrence R. Fortier, Complainant's witness who was the general foreman for the shift, testified that Howard Hook said he would not tolerate Complainant's leaving welding wire in the tank. He also stated that he had been told that the offense would result in termination and that the foreman under him so informed their workers, including Complainant.

    Stephen P. Crain, Contract Supervisor, pointed out the Special Job Rules for the Vermont Yankee Nuclear Power Plant Torus Modification, and the Quality Assurance Manual (based upon the U.S. Code provisions) were the guidelines under which all of the work was performed. These guidelines provided that

welding materials be stored in locked areas or locked electrode ovens,¹ with strict records of use and return of materials so that there would be official documentation that proper welding material was used. The witness testified that another person had been fired the day before the Complainant was terminated for the same reason and, that while he could have overridden Mr. Hook's decision to terminate Complainant, he did not do so because he thought Mr. Hook had made a reasonable decision.

    Joseph A. Bustido, a weld pusher at the time, said that only he, the welder and the rod attendant were authorized to touch the welding rods. The witness stated that when he saw that a rod had been left by Complainant, he waited to see that it was not improperly used. When he saw Complainant's helper pick the rod up he took it from the helper and returned it. Mr. Bustido then advised Mr. Hook of the events.

    Howard Hook, Night Shift Superintendent, said that after Mr. Bustido told him that Complainant left the welding rod in the torus, he asked Mr. Fortier what he was going to do about the situation. Together they talked to Dave Reardon the union steward. The question of firing Complainant was discussed for about an hour and a half. Mr. Hook testified that if he had wanted to fire Complainant for talking to the Nuclear Regulatory commission man he would not have waited ten days. The witness said that the day before he had fired a pipefitter for the same offense and that Complainant was one of his best welders, being one of two stainless steel welders on the shift.

    To show that his dismissal for failing to return a welding rod was unusual, Complainant presented testimony that welding rod stubs had often been left in the work area. There was no showing that the identities of the culprits were known to management, but most important, the evidence ignores the reason for tight controls over rod use. The stubs were waste, while the good rods could be used again. The controls were to insure that proper materials were used on the welds and that the materials had been property cared for to prevent later problems with the welds. The evidence that another welder had failed to bring out his welding rod when he was injured is also found to not be persuasive. In that incident an authorized person returned the rod.

¹ Some of the welding rods were stored under heated conditions to avoid moisture from becoming a problem.