CASE NO. 81-ERA-7

In the Matter of

MICHAEL W. FLANAGAN

v.

BECHTEL POWER CORPORATION,
SOUTHERN CALIFORNIA EDISON,
WESLEY YOUNG, AND OTHER UNKNOWN
AGENTS OF BECHTEL AND SOUTHERN
CALIFORNIA EDISON

Michael W. Flanagan
    P.O. Box 26103
    San Diego, California 92126
       Pro Se

Michael A. Fletcher, Attorney at Law
    50 Beale Street
    San Francisco, California 94105
       For Bechtel Power Corporation

Patricia E. Anderson, Attorney at Law
    2244 Walnut Grove Avenue
    Rosemead, California 91770
       For Southern California Edison

Wesley Young
    P.O. Box 1000
    San Clemente, California
       Pro Se

    This hearing arises under 42 U.S.C. § 5851, a part of the Energy Reorganization Act of 1974, on the complainant's request for

hearing, appealing from the notice of determination, issued by the Assistant Area Director, on behalf of the Administrator of the Wage and Hour Division of the Employment Standards Administration of the United States Department of Labor, finding that "investigation did not verify that discrimination was a factor" in the refusal of respondent Bechtel Power Corporation to employ the complainant on February 17, 1981.

    The statute here involved is one of a group of several similar provisions [Safe Drinking Water Act, 42 U.S.C. § 300 J-9(i); Water Pollution Control Act, 33 U.S.C. § 1367; Toxic Substances Control Act, 15 U.S.C. § 2622; Solid Waste Disposal Act, 42 U.S.C. § 6971; Clean Air Act, 42 U.S.C. § 7622; and Energy Reorganization Act of 1974, 42 U.S.C. § 5851] intended for "the protection of 'whistle- blower' employees" [45 F.R. 1836, "supplementary information"] so "that employees who bring [various practices affecting the public health] to the attention of various regulatory agencies . . . should not be in any way impaired in their employment by bringing these to the attention of the federal agency" [argument of the representative of respondent Southern California Edison, hearing transcript page 93, lines 13-17]. The complainant contends that the refusal of the respondent Bechtel Power Corporation to employ him on February 17, 1981, constitutes such a discrimination and therefore a violation of the statute.

    In pertinent part the statute provides:

"§ 5851(a) No employer, including a . . . contractor . . . of a Commission licensee . . . , may . . . discriminate against any employee with respect to his . . . privileges of employment because the employee . . .

(1) commenced . . . a proceeding under . . . the Atomic Energy Act . . .

(3) assisted or participated . . . in any . . . action to carry out the purposes of this Act or the Atomic Energy Act of 1954 . . ."

and that

"(b)(2)(B) If, in response to a complaint filed . . . , the Secretary [of Labor] determines that a violation of subsection (a) of this section has occurred, the Secretary shall order the person who committed such violation to (i) take affirmative action to abate the violation, and (ii) reinstate the complainant to his former position [and may also] order . . . compensatory damages [and] costs and expenses (including attorney's and expert witness fees) reasonably incurred by the complainant . . .

(g) Subsection (a) of this section shall not apply with respect to any employee who, acting without direction from his or her employer (or the employer's agent), deliberately causes a violation of any requirement . . .

    On behalf of respondent Wesley Young it is contended that he was not an employer and that the complaint against him should accordingly be dismissed.

    Respondent Southern California Edison moves for its dismissal from the case on the grounds that:

(1) It is not an employer [transcript, page 93, line 23];

(2) The complainant was not its employee [ibid., line 24];

(3) Southern California Edison played no part in the events which the complainant contends constituted discriminatory action; and

(4) The complainant has failed to state a claim upon which relief can be granted against that respondent [transcript, page 94, line 25 to page 95, line 1]. This party cites Federal Rules of Civil Procedure 12(b)(6) and Rule 21.

    Respondent Bechtel Power Corporation contends that the relief sought should be denied on the grounds that:

(1) The complainant did not undertake the protected activity until after he had voluntarily quit his employment, was therefore not Bechtel's employee at that time, and therefore is not a member of the class which the statute protects;

(2) The natural person (actual human) who decided to deny employment did not know of the protected activity at the time of the decision and therefore could not have made the decision on that basis;

(3) That natural person believed at the time of making his decision on behalf of Bechtel that he had good business reasons for rejecting the complainant's application for employment, relied on that belief in making the decision, and therefore did not violate the statutory prohibition;

(4) The complainant in fact did perform those acts for which Bechtel rejected him, to which reference is made in contention (3) immediately preceding; and

(5) The complainant's own violation of a safety regulation disqualifies him from protection under the Act by operation of 42 U.S.C. § 5851(g) quoted above.

    The issues in this case are essentially the questions of the soundness of each of these respective contentions.

    At all material times mentioned herein, respondent Southern California Edison Company owned three adjacent nuclear power generating facilities at Camp Pendleton, California. It had a license from the Nuclear Regulatory Commission to operate one, known as San Onofre Unit 1. The other two--Units 2 and 3--were still under construction. Bechtel Power Corporation, however, actually operated Unit 1 under a contract with Southern California Edison.

    At all material times mentioned herein the complainant was an electrician seeking, securing, and working in employment as an electrician through the reference to various employers by a local hiring hall, pursuant to a collective bargaining agreement between his craft union (with other labor unions) and various local employers, including Bechtel Power Corporation. Before April 1980 he had in this way worked at times on the construction of Units 2 and 3, and at various other jobs obtained by union hiring hall referral in the area. In this way he worked for Bechtel at Unit 1 April 16-19, 1980.

    For the protection of both workers and the general public, numerous rules and precautionary procedures applied to the operation of the power station at Unit 1, including radioactivity monitoring, use of protective clothing, placement of radioactive material, restricted access, etc. One of these procedures required that certain employees be accompanied by an escort familiar with plant procedures. This escort provided instructions on appropriate safety and security procedures and was to be at all times within view and sound of the employees whom he was escorting. Evidently this rule applied particularly to persons not regularly employed at the site, such as those who came on periodically for repair or similar short-employment assignments. In view of the comments in the collective bargaining contract to wide and frequent variations in employment for "maintenance" at this plant, and the mode of hiring hall referral, in appears that such was the nature of the complainant's employment during April 1980.

    During his April 1980 employment mentioned above, the complainant was satisfied with the safety instruction which he received from his escort, but gained the impression that widespread violations of safety regulations were occurring at the plant. He evidently attributed at least part of these violations to inadequate instruction or monitoring by other escorts. He brought these concerns to the attention of appropriate persons at the plant and suggested a remedial training session. In response to his request, a training session occurred on Saturday morning, April 19, 1980. The complainant and several score other craftsmen attended. When the complainant heard the instructor give information about the dosages in other sources of radiation such as sunlight and medical x-rays (presumably for comparison with radiation levels in the plant), he objected to the emphasis on the "physics" and raised questions intended to redirect the instruction toward what he regarded as more practical information about how to perform the work in a safe manner. During a portion of this training

conference the project superintendent observed it. He was unaware of how or why the session had been assembled, and conceived its objective to be "just to more or less put . . . at ease people who [had] not had the formal training which they would receive if they had been badged" [presumably more permanent employees] [transcript, page 77, lines 2-4]. He accordingly concluded that "one individual . . .disrupted the class" by interrupting the instructor's train of thought and taking "away from the over-all intent and meaning of the class" [transcript, page 78, lines 6-11]. Others attending the session also regarded the complainant's actions as disruptive.

    After the superintendent had left the meeting, the complainant became completely dissatisfied and convinced that the session would not lead to the sort of training which he regarded as essential. He therefore informed his immediate supervisor that he was leaving the job, indicated the address to which his pay should be sent, and referred to the instruction by a scatological epithet downgrading its value and perhaps its credibility. He then left before the session ended. Conflicting evidence has been introduced on whether his departure violated the rule requiring that he be accompanied by his escort. At least one person present at the session believed and reported to the superintendent that the complainant had left without waiting for his escort to accompany him to the gate.

    Immediately thereafter the complainant made eight allegations of safety violations at the plant to the Nuclear Regulatory Commission, which investigated them. The Commission inspector commented that some of the charges were "probably true", but made no findings based directly on the complainant's allegations. He did independently observe two violations similar to those reported by the complainant (allegation 5), a violation of "good practice" but not of a requirement (allegation 6), confirmed the facts of one alleged violation but did not formally call it a violation (allegation 3), saw no recurrences of one of the violations alleged (allegation 1), and confirmed the appearance of certain facts alleged but concluded that these did not actually constitute violations (allegations 2, 4, 7, and 8).

    In the meantime the complainant had evidently changed his mind, and accepted a referral to return to work with the same

employer at the same site about April 22, 1980. The employer's timekeeper had noted in the complainant's personnel records that he voluntarily left work because he was "dissatisfied [with] working conditions" (Bechtel Exhibit 7), presumably because the complainant had been dissatisfied with the safety practices. In reliance on this and a standard practice of the employer not to rehire within 60 days of a prior voluntary quit, the employer rejected the complainant for employment when the hiring hall referred him, although the notation on his records indicated at that time that he would be eligible for rehire.

    The rejection for rehire and the complainant's charges against plant safety had been reported in a San Diego newspaper. The complainant therefore also alleged that the refusal to rehire constituted a violation of the nondiscrimination statute under which the present proceeding is brought, and the inspector also inquired into that matter. He found, however, that the reason for refusal to hire was as found just above, and accordingly found no violation in that refusal. The complainant did not pursue that issue before the Department of Labor within 30 days thereafter.

    On February 17, 1981, the hiring hall again referred the complainant to prospective employment with Bechtel at Unit 1, but again Bechtel refused him employment. The reason given at that time was "security risk", but the position later taken was that his leaving the plant without being escorted to the gate made him a "safety risk".

    At the hearing the superintendent testified that he alone made the decision to refuse employment on February 17, 1981, on the basis of his recollection of disruptive behavior at the training session, the identification soon afterward that the disrupter was the complainant, and the report that the complainant had left the premises without being escorted to the gate. He also testified that he learned of the application because the timekeeper had called him in view of the unusual circumstances shown on the record of the complainant's prior employment with Bechtel. In its trial brief Bechtel argues that the superintendent thus refused reemployment both because of the complainant's violation of a specific safety or security regulation and because of the superintendent's impression that the complainant's behavior at the training session evinced a lack of concern for safety.

    The superintendent testified that he did not live in San Diego, did not read the newspaper article mentioned above, and was unaware that the complainant had alleged any safety violations to the Nuclear Regulatory Commission.

    From a comparison of all the evidence, and a consideration of various factors, including the apparent inconsistencies in documents issued and positions taken by the employer, and from observing the demeanor and manner of testifying of the witnesses, it is found that the superintendent made the sole decision not to rehire on the basis only of his belief that the complainant had evinced a lack of concern for safety by his behavior at the training session and had violated the escort rule.

Status of Wes Young as a Party

    In contrast to some of the statutes mentioned above, 42 U.S.C. 5851 imposes its prohibition only on, and provides its relief only against, employers. No evidence in this case suggests that Wes Young was at any time an employer; the complainant has not alleged that he was; and no reason exists to suppose that he was or that he could have been. Accordingly, he does not appear to have been a proper party to this proceeding, and it would be just that he be dropped as a party defendant from this proceeding under Rule 21 of the Federal Rules of Civil Procedure.

Status of Southern California Edison Company as a Party and Disposition of the Case with Respect to It

    Rule 21, cited above, provides that parties may be dropped at any stage of the action on such terms as are just. Rule 12(b)(6) authorizes pleading by motion of a defense of failure to state a claim upon which relief can be granted. The timely filed claim of March 10, 1981, however, asserts that "the only reason for the termination [of February 17 employment] of Mr. Flanagan was the desire of Southern California Edison and Bechtel Power Corp. to discriminate against him because of his actions intended to promote safety at the [San Onofre] installation." In an administrative proceeding of this relatively informal type, that is a sufficient pleading to state a cause of action against Southern California Edison Company, precluding its being dropped as a party or the dismissal of the case against it.

    Although no evidence appears in this case to establish that Southern California Edison is an employer and the argument denies that it is an employer, its existence and nature is so commonly known among the general population within the jurisdiction of this tribunal that the tribunal may take official notice that Southern California Edison Company is in fact an employer. It is therefore not exempt from the Act on that basis.

    On the other hand the evidence is clear that this party played no part in the events described above. It is therefore found that no violation of the law by this party has been established.

Employee Status

    Bechtel Corporation relies on the use of the word "employee" in the statute and the holding in King v. Tennessee Valley Authority, Case No. 80-ERA-1, Slip Opinion p. 6 (1980) for the proposition that the complainant is not part of the class protected under the Act because he was not employed by Bechtel at the time of the alleged discrimination or at the time of the alleged protected acts, but other considerations are more persuasive.

    First, such a narrow interpretation would thwart the purpose of the Act to protect the "whistle blower", to the end that "employees and union officials could help assure that employers do not violate requirements of the Atomic Energy Act" [U.S. Code Congressional and Administrative News, 95th Cong. 2nd Sess. 1978, p. 7304], particularly in the case of a worker who, like this complainant, works frequent, short periods of employment. For such a worker the right of rehire is at least as valuable and crucial to his support of the protection of public health and safety as is protection against dismissal.

    Furthermore, the Senate Report leading to the legislation uses the expression "[a]ny worker" as a synonym in the following paragraph, indicating that the meaning intended was, in accordance with the purpose of the statute, to cover all workers insofar as they work as employees. It is fundamental that the real intent of a statute or any other statement can best be gleaned from a consideration of the objective of the document as a whole rather than from overemphasis on isolated words taken out of context. The question is one of intent, not of technical grammar.

    Secondly, the regulation interpreting and applying this section specifically precludes the basis for the King decision. In King, the statement is made that the language of the statute refers to an employee rather than to an individual who is seeking to become employed. The regulation, however, specifically identifies blacklisting as a violation of the law [29 C.F.R. § 24.2(b)]. Since blacklisting refers to a discriminatory practice of non-hiring, this provision can only apply to hiring. This does not directly refer to their status at the time of the protected activity, but the regulation refers to the parallel statutes [29 C.F.R. § 24.1) and the Senate Report also refers to some of these. The Senate Report traces the provision to a section of the "National Labor Management Act" [U.S. Code Congressional and Administrative News, op. cit., p. 7303]. Neither, the statute now being nor any of these parallel statutes contains any definition of the term "employee", despite definitions of other terms, but the source statute did and does contain such a definition at 29 U.S.C. § 152(3). This definition applies to the provision in the Labor Management Relations Act on which all of the above statutes are patterned. That provision, at 29 U.S.C. SS 158(a), provides in pertinent part:

"It shall be an unfair labor practice for an employer . . .

(4) to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this subchapter . . ."

    It is well established that under this provision the denial of employment to an applicant by an employer for the reason that the applicant had been an active union member or had given testimony against a former employer in an unfair labor practice proceeding constituted a violation of the law [NLRB v. Lamar Creamery Company, 246 F.2d 8, 10 (5th Cir. 1957)]; that an applicant for employment should be treated as an employee within the meaning of this statutory provision [ibid., citing John Hancock Mutual Life Insurance Company v. NLRB, 191 F.2d 483, 485 (D.C. Cir. 1951)]; that the phrase "otherwise discriminate" in this statutory language includes discrimination in regard to hiring [Lamar and John Hancock cases, cited above, and NLRB v. Syracuse Stamping Company, 208 F.2d 77, 80 (2nd Cir. 1953)]; and that the term "employee" in this statute means any person who works as an employee, and is not limited to employees of the particular employer in question [Phelps Dodge Corporation v. NLRB, 313 U.S. 177, 191-2, 61 S. Ct. 845, 851

(1941)], in accordance with the statutory language at 29 U.S.C. § 152(3) that the

"term 'employee' shall include any employee, and shall not be limited to the employees of a particular employer . . . "

    It is thus clear that the parallel provisions in all of these statutes aimed at protecting workers from employment discrimination for assisting in the enforcement of the applicable laws was meant to apply to employment discrimination against any prospective as well as current employee, as set forth by statute in the original pattern and affirmed by the highest courts. The reason for, and necessity of, such an interpretation is obvious; without it, the congressional purpose of protecting workers to the extent of encouraging them to assist in the enforcement of federal law would be frustrated, for even the best protected worker, under the interpretation which respondent urges, would have no protection against any employer except that particular one in whose employ he was at the time, and might thus be barred from his entire occupation with any other prospective employer.

    It is also clear that the regulations adopted to implement the statute presently involved contemplate precisely that definition which the Supreme Court approved above, as shown by the provision in 29 C.F.R. § 24.2(b) which expressly states that:

"(b) Any person is deemed to have violated the particular federal law and these regulations if such person . . . blacklists . . . any employee who has [performed any of the protected acts]".

    This tribunal therefore rejects the language in King v. Tennessee Valley Authority, cited above, that the statute refers to a current employee as distinguished from an individual who is seeking to become employed with a particular employer (Slip Opinion, page 6), or respondent's contention that the protected activity must have occurred while the employee was in the employment of this particular employer, or even that he be employed at the moment Indeed, the circumstances of the present case point up the absurdity of the latter position. The complainant's resignation from his employment and his filing of the charges with the Nuclear Regulatory Commission both constitute essentially one course of action motivated by one consideration: concern for safety at the plant. To make the applicability of the statutory protection

depend upon the essentially trivial and irrelevant sequence of steps within that unified course of action would be totally unreasonable.

    It is therefore found and concluded that the complainant was an "employee" within the sense of the term as used in the statute and was within the class of persons meant to be protected by the use of that term, and it is further found and concluded that his filing of the charges was a protected activity under the statute. The next question then becomes:

    What is the effect of that protection?

Scope of Protection

    Respondent Bechtel contends, soundly, that the complainant's engagement in protected activity does not insulate him from adverse employment actions which are actually based on sound and lawful business purposes. Again, under the anti-discrimination statute after which the present provision is patterned,

"it is well settled that engaging in protected activity . . . . does not immunize employees against discharge for legitimate reasons . . ."

[Hawkins v. NLRB, 358 F.2d 281 (7th Cir. 1966)], which in turn follows essentially the same approach as the United States Supreme Court has followed in dealing with unlawful discrimination on the basis of the exercise of constitutional rights. In Mount Healthy City School District v. Doyle that court took the position that protected behavior is sufficiently protected if the

"employee is placed in no worse a position than if he had not engaged in the conduct. A borderline or marginal candidate should not have the employment question resolved against him because of . . . protected conduct. But that same candidate ought not to be able, by engaging in such conduct, to prevent his employer from assessing his performance record and reaching a decision not to rehire on the basis of that record . . . [429 U.S. 274, 285-6, 97 Supreme Court 568, 575 (1977)]."

    The crucial question therefore becomes whether the respondent would have refused rehire in the absence of the protected behavior.

    The evidence which the claimant had--the sequence of events and the nature of the information given him when he was refused rehire on the two different occasions--sufficed to raise a suspicion, and perhaps a reasonable inference, that the employer's action was based on the protected activity. The direct testimony of the person responsible for making the decision on behalf of respondent, however, was that he was unaware of the protected activity at the time of his decision. This testimony is rather surprising under the circumstances, but not impossible in a large organization. Considering the demeanor and manner of testifying of this witness and the lack of any direct evidence to the contrary, it is found in accordance with the greater weight of the evidence that he did not know of, and therefore was not motivated by, the complainant's protected behavior.

    The complainant argues that the events which were the basis of the superintendent's decision not to rehire him did not actually occur. It is sufficient, however, if the person making the decision at that time believed them, since that state of mind constituted the basis of the decision. This tribunal has no authority to review the soundness of that aspect of the decision, but may consider the truth of the accusations against the complainant only to the extent that the resolution of that fact would bear on the state of mind of the superintendent; i.e., if the fact was so clearly contrary to what is alleged that the superintendent could not plausibly have believed the facts allegedly constituting the basis of refusal of rehire, a reasonable inference might be that such belief was not in fact the real reason for the respondent's action and that the protected activity therefore was the reason. Other evidence however tends to support the superintendent's testimony that he gained the impression, by direct observation and by information relayed to him, that the complainant had behaved in an obstructive manner at the training session and had left the premises without proper escort.

    Accordingly it is found that the superintendent did not base his action on the protected behavior, but instead on the supposition that the complainant was insufficiently concerned with safety as a result of his conduct at the training session, and because the superintendent reasonably believed that the complainant had left the premises without the proper escort to the gate. Those

were both legitimate business reasons. The respondent Bechtel therefore did not violate the statute in refusing employment on the basis of these beliefs.

    The evidence presented at the hearing makes clear that the complainant requested the training session, asked the questions and otherwise behaved as he did at the training session, resigned his employment on the same day, and filed the charges because of a genuine concern for safety. The superintendent's testimony is accepted to the effect that he was unaware that the training session had been called at the complainant's instance, that he only attended a portion of this session, and that he regarded the activity which he saw in the audience at that time as disruptive of the purpose of the meeting. It is evident from his testimony and others at the hearing that he regarded the purpose of the session as reassurance of the newer employees, although it is also clear that the complainant desired a session for the purpose, and therefore regarded the purpose of the session as being, the detailed instruction as to how to make working conditions safer. If the superintendent had known of this difference in viewpoint at the time of the session, it is implausible that he would have been able to conclude, as he did, that the complainant was not concerned with safety. If the complainant should again be referred for work to this employer at this facility, the superintendent therefore could not now, after the hearing, plausibly hold such belief, nor could Bechtel hereafter rely on such belief as a basis for its position that further refusal of employment would not be based on the protected behavior.

    On the other hand, whatever this tribunal might conclude, Bechtel might still plausibly believe that the claimant's conduct and particularly the circumstances of his departure from employment imply an impulsive nature which it might regard as unsafe in the special circumstance of a nuclear power generating facility, particularly since that action was followed by the complainant's almost immediate acceptance of another referral to employment at that plant.

    Respondent Wesley Young is deleted as party to this proceeding. The motion to dismiss the proceedings with respect to Southern California Edison is denied. Relief against any party in

this proceeding is denied.

       R. S. HEYER
       Administrative Law Judge

Dated: NOV 19 1981
San Francisco, California

RSH:kr

NOTICE: Pursuant to 29 C.F.R. § 24.6(a) this recommended decision shall be forwarded, along with the record, to the Secretary of Labor for a final order.