Crider v. Pullman Power Products, 82-ERA-7 (ALJ Oct. 5, 1982)

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Crider v. Pullman Power Products, 82-ERA-7 (ALJ Oct. 5, 1982)

U.S. Department of Labor
Office of Administrative Law Judges
1111 20th Street, N.W.
Washington, D.C. 20036

05 OCT 1982
Case No. 82-ERA-0007

In the Matter of

CLARENCE CRIDER
Claimant

PULLMAN POWER PRODUCTS CORPORATION
Employer

Mark J. Nathan, Esq.
For the Claimant

David C. Palmer, Esq.
For the Employer

Before: JOHN C. HOLMES
Administative Law Judge

RECOMMENDED DECISION AND ORDER - DENIAL OF CLAIM

This is a proceeding under the Energy Reorganization Act of 1974, 42 U.S.C. § 501 (the Act) based on a complaint by Claimant that he was terminated from his employment as a welder in violation of the Act.¹

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After proper notice a hearing was held in Savannah, Georgia on April 2, 1982 at which Claimant and Employer were represented by counsel ² Both parties were given full opportunity to submit evidence, call, examine and cross-examine witnesses, present legal arguments and to file post hearing briefs. My Decision and order is based upon the entire record.

Statement of the Case

Both parties agree that Claimant, a welder, took a welding test for hiring welders in connection with Employer's construction work on the Plant Vogtle facility of Georgia Power Company. He was adjudged by Employer not to have passed the test, a "K"-insert" weld of approximately 10 minutes duration.

Claimant alleges that his failure to pass the test was as a direct result of his having testified, on his own volition, before the Nuclear Regulatory Commission in 1979, while working for Daniels Construction Company on the Sumner Nuclear Project. The resulting investigation concluded with an affirmance of Claimant's contention that numerous welds were deficient, thus causing Daniels and the other project participants large expense of funds as well as adverse publicity. Claimant has consequently suffered discrimination throughout the utility industry. In the case at hand, he was discriminatorily "discharged" by Employer's welding test ³ which: (1) in its set up gave claimant too little material to work with thus causing extreme difficulty in making a weld; (2) despite this discriminatory set-up, Claimant made a "perfect weld" which Employer unfairly and discriminatorily rejected by "looking out."

Claimant, also, alleges that he was discriminated against in not being permitted to timely and under the same conditions as other welders be retested. He seeks as damages: reinstatement in the job he applied for, back pay and attorney fees.

Findings of Facts and Conclusions.

Essential to claimant's establishment of a prima facie case of discrimination in the testing procedure is that Employer have prior knowledge of claimant's "whistleblowing" activities; without such knowledge there can be no discriminatory tory "discharge" that is reviewable under the Act. All four of the employees of Pullman testified at the hearing that

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they had no prior personal knowledge of Claimant or his "whistleblowing" activities.

Therefore, the only manner in which Raymond Lane, Pullman's employee fully and solely in charge of administering the test and judging the performance of each welder, could obtain the requisite knowledge concerning Mr. Crider was from Edward Coleman, an employee of Georgia Power Company who had known Mr. Crider and his activities at Daniels in 1979. It follows that crucial to a resolution of this matter, is whether Mr. Coleman spoke with Mr. Lane prior to or after the completion of claimant's test. The evidence presented by the parties concerning this threshhold question is diametrically and irreconcilably opposed.

Mr. Crider testified that he personally saw Mr. Coleman at approximately 10:00 a.m., prior to the test being administered and that they spoke briefly. (Tr. 58) Claimant further stated that a fellow welder, Don Goldman overheard a conversation between Mr. Coleman and Mr. Lane concerning Mr. Crider that took place between 10:30 and 11:00 a.m., of that day. (Tr. 61) (Mr. Goldman, however, did not testify at the hearing). Claimant stated he did not finish the test until after noon. (Tr. 61).

Mr. Coleman, on the other hand, testified that during the entire week, including the day in question, he attended a seminar In the training center some 5 blocks from the welding test site. (See, also, E #5) From eight to twelve of the day in question Mr. Coleman testified he was at the seminar, but returned at noon to eat his brown bag lunch at his field office. He saw and briefly conversed with Mr. Crider on the way into his office; he then conversed with Mr. Goldman who had already failed the welding test (Tr. 177-79). He saw Mr. Lane after his 30 minute lunch for the first time that day; Mr. Lane said held already failed Mr. Crider (Tr. 184). Mr. Coleman had not seen Mr. Crider before noon (Tr. 201). Mr. Lane testified that the test was set up at 10:00 a.m.; he (Mr. Lane) had "looked out" (rejected) Mr. Crider's weld prior to noon. (Tr. 245). Mr. Lane first saw Mr. Coleman at the end of the lunch period at which time they discussed Mr. Crider (Tr. 247).

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While both parties thus presented evidence acknowledging a conversation between Mr. Lane and Mr. Coleman concerning Mr. Crider, Mr. Crider's account places the conversation between 10:00 and 11:00 a.m., before he took the welding test, whereas, Mr. Lane and Mr. Coleman's version places the time period at about 12:30 p.m., after Claimant had already been rejected on the test. Moreover, Claimant contends he saw Mr. Coleman personally at about 10:00 a.m.; Mr. Coleman testified he first saw claimant at about noon.

Claimant, furthermore, testified that: as an "expert" welder he has passed more difficult tests in the past and never failed; the test was not set up properly; after he finished the test, Mr. Lane unfairly "looked him out," Mr. Lane yelled at him when Claimant protested and alluded to his whistleblowing activities; Mr. Lane then disposed of the weld refusing Mr. Crider's request to have it kept as evidence; Mr. Lane took the very unusual step to state to the union that Mr. Crider was not subject to rehire.

Employer alleges that: the test was very difficult, probably only 20-30% of welders could pass it, any given welder could be rejected on a given day, and Mr. Crider had at most only twice taken the "K" insert" test; the test set up by Mr. Lane's assistant Mr. Bone, was impossible to "rig" against an individual; all four welders who took the test that morning were "looked out" by Mr. Lane; Mr. Lane first raised the problem he'd had with Mr. Crider with Mr. Coleman who confirmed prior difficulties with Mr. Crider; only thereafter did Mr. Lane and Mr. Crider have an altercation; Mr. Crider had been a "troublemaker" on previous jobs, for example, attempting to become a foreman after only two years, and being overzealous about safety standards.

While many speculations of wrongdoing by Employer have been raised by Claimant, no hard evidence has been provided. In fact, glaring or significant inconsistencies have not been shown by either party so as to totally discredit the version of what in fact happened (i.e., most significantly, at what time the conversation took place between Mr. Lane and Mr. Coleman). If one believes claimant's version of the case, the evidence presented by him of whether the test was fairly administered and judged as well as all, or nearly all, other matters connected therewith fall neatly into place.

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Similarly, if one believes Employer's version, the contrasting evidence as neatly falls into place for Employer.

Claimant has presented no direct testimony that the crucial conversation occured before 12:00 noon. The hearsay evidence of Mr. Goldman was not corroborated.⁴ Although claimant testified, that he observed Mr. Coleman at the welding site "between 10:00 and 11:00 a.m.", even if this were true while it would cast considerable doubt on the credibility of Mr. Lane and particularly Mr. Coleman, it would not in and of itself demonstrate that Mr. Lane and Mr. Coleman had discussed Mr. Crider prior to noon. On the other hand, both Mr. Lane and Mr. Coleman stated that they had not seen each other that day prior to approximately 12:30 p.m. Both testified they discussed Mr. Crider who had already failed the test.⁵

While a strong case has been made by Claimant demonstrating numerous actions that would support a finding of discrimination were Employer (through its agents) found to have prior knowledge of Claimant's whistleblowing, such requisite prior knowledge has not been demonstrated. Claimant has failed to carry his burden of persuasion on this threshhold issue: It follows that Employer cannot be found to have discriminatorily rejected claimant's test ("terminated employment" under the Act).

Rehire

Claimant alleges as a second ground of action that he was initially denied the opportunity to retest, and that he was discriminated against thereafter by not being allowed to retest under the same conditions as the other welders.

Mr. Lane's action in noting "not for rehire" does not amount to discrimination under the Act. The exact knowledge conveyed by Mr. Coleman to Mr. Lane concerning Mr. Crider's past activities was not specifically given. Thus, it is not entirely clear whether Mr. Lane's motive in noting "not for rehire" was due to a personality clash between Mr. Lane and Mr. Crider, after the latter challenged the integrity of the testing procedure, or whether it was due to Claimant's "whistle-blowing" history.

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In the present case, however, it is unnecessary to address the "dual motive" principle, set forth in Mt. Healthy School District Board of Education v. Doyle, 429 U.S. 274, 287 (1977).

Mr. Lane's "spur of the moment" "not for rehire" Order was shortly thereafter taken under advisement by other officials at Pullman, and was rescinded. (Tr. 102).

Since the retesting procedure by contract would not take place until 30 days after the initial test, (Tr. 71) the action of the Pullman officials to rescind Mr. Lane's "not for rehire" Order rendered it void.

Claimant alleges further that Pullman was discriminatory against him in retesting on several bases: (1) Mr. Jones was permitted to be retested on December 17 rather than wait the 30 days required under the union contract; (2) Claimant was required to go through an Atlanta union agent to obtain retesting; (3) Conditions were attached to retesting.⁶

As to the first allegation, Mr. Jones was allowed to take a different test for a different welding job on December 17. There was no allegation or evidence that the other two welders who were "looked out" that morning were permitted to take the "K" insert or any other welding test prior to the 30 days waiting period. The evidence is not clear as to whether Pullman was violating its union contract in fact or custom by thus permitting Mr. Jones to take a separate welding test on the same day he failed the "K" insert. Although, arguably, Pullman showed favoritism to Mr. Jones, I do not find this action constituted discrimination against Mr. Crider.

Claimant alleged at the hearing concerning conditions attached to the retesting that Claimant need go through the Augusta union "business agent". Claimant apparently implies that Pullman in some way was able to apply pressure to the Augusta agent (rather than Mr. Crider's Columbia, South Carolina "agent") to prevent Mr. Crider from retaking the test. The hearsay statements of the Augusta agent are little

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more than personal opinions that claimant was "unwanted" by Pullman. They provide no substantive wrongdoing on the part of Pullman. The requirement that claimant be sent by the union is the standard procedure for testing and is not discriminatory.

The allegation by claimant that he would have to sign a waiver against future liability in order to retake the test, might have been discriminatory since other welders who were retested after 30 days were not required to sign such a waiver. However, this "waiver" was merely alluded to; it was not introduced into evidence. Mr. Palmer, counsel for Pullman, testified to the contrary that no conditions would be attached to the retest. Moreover, even were such a requirement proven, the intention or motive of Pullman would to a large extent be dependent on the central evidenciary issue here, the timing of the conversation between Mr. Coleman and Mr. Lane. If as alleged by claimant the test itself was discriminatory, any conditions on retesting would, also, be discriminatory. On the other hand, if claimant's accusations were not in fact true with respect to the conversations, Mr. Crider would have taken on the attributes of a "troublemaker" rather than a "whistleblower"; Pullman would, therefore, have been justified in attaching reasonable conditions such as a waiver of liability to retesting in order to protect itself against further unwarranted recriminations.

ORDER ⁷

Since Claimant has not demonstrated discriminatory action by Employer under the Act, his claim is denied.

JOHN C. HOLMES
Administrative Law Judge

JCH/fm

[ENDNOTES]

¹ 42 U.S.C. § 5851 provides, in relevant part: "(a) No employer . . . may discharge any employee. . . because the employee . . . assisted or participated or is about to assist or participate in any manner in . . . a proceeding [under this Act or the Atomic Energy Act of 1954, as amended] or in any other action to carry out the purposes of this Act or the Atomic Energy Act of 1954, as amended."

² Georgia Power Company, the owner of the plant in question, appeared through counsel as a party in interest at the proceeding without objection by Claimant (Tr. 5,6).

³ Under the contract between Pullman and the union, a welder is "hired" (and paid) for the day he takes the welding test. Employer does not dispute that such "hiring" brings this matter under the jurisdiction of the Act.

⁴ This hearsay testimony was objected to by counsel for Employer. (Tr. 60) Counsel for Claimant contended that testimony would be corroborated by Mr. Texas jackson, compliance officer for the Department of Labor, who had made an administrative investigation of this matter and who testified at the hearing. While Mr. jackson testified as to the conversation taking place, he did not place a time period on it (See, also, C #6).

⁵ While it would appear entirely likely that employees of Pullman and Mr. Coleman had discussed this matter at length in private conversations, and not unlikely they had discussed it with their counsel, at the hearing witnesses were sequestered (Tr. 12). I found no significant contradictions between the accounts told by Mr. Lane and Coleman.

If Mr. Coleman and Mr. Lane did converse between 10:00 and 11:00 a.m., as Claimant has doggedly contended, a prima facie case would be made that Pullman through its agents had elevated an initially minor, "spur of the moment" and questionably discriminatory action in failing claimant on his welding test into an extensive "cover-up" following the test and up and through the hearing.

Further, Mr. Lane's destruction of the weld sample and his "justification", therefore, I find completely unacceptable. In all likelihood, this matter could have been resolved at a lower investigatory stage of the proceed with consequent avoiding of public recriminations as well as costly litigation had this crucial evidence been maintained. However, Mr. Lane's motives have not been demonstrated to be discriminatory under the Act, nor can Pullman be held to have repressed evidence by Mr. Lane's action.

⁶ Claimant obtained a welding job with Blunt Brothers, a utility company, one week after his rejection from Pullman. At Blunt he is paid $13.20 per hour, whereas his hourly wage at Pullman would have been $12.75. However, Claimant alleges he would receive time and a half overtime for 2 hours every day at Pullman and that employment at nuclear projects is of a longer duration. (Tr. 75-76). He apparently never did retest with Pullman.

⁷ Expedited hearings are required under the Act. However, as agreed to by both parties the record was held open after the hearing for 45 days; within this period the parties mutually agreed to attempt to reach a settlement and to hold the record open for such purposes.