CASE NO. 82-ERA-8
In the Matter of

ROBERT MACKOWIAK
    Complainant

    v.

UNIVERSITY NUCLEAR SYSTEMS, INC.
    Respondent

Ann Cross Eschenbach, Esq.
    612 Pioneer Building
    600 First Avenue
    Seattle, WI 98104
       For the Complainant

Frank E. Drachman, Jr., Esq.
    University Industries Building
    3430 Camino Del Rio North, Suite 200
    San Diego, CA 92108
       For the Respondent

Before: EDWARD C. BURCH
    Deputy Chief Judge

    Robert Mackowiak timely requested a former hearing on the record following the March 26, 1982 determination of the Area

Director, ESA, U.S. Department of Labor, that there had been no violation by University Nuclear Systems, Inc. (UNS), of either 42 U.S.C. 5851 or 29 C.F.R. Part 24, the "whistle blower" statute and regulations. A formal hearing was commenced in Richland, Washington, June 8, 1982, and was completed in Spokane, Washington, July 26, 1982.

    It is concluded, after a review of all evidence, that the determination of the Area Director is confirmed. Complainant has failed to establish that his elimination as a Quality Control Inspector in a Reduction In Force was the result of his cooperation with Nuclear Regulatory Commission investigators.

    29 C.F.R. § 24.2 provides in applicable part:

"... no employer ... may discharge any employee or otherwise discriminate against any employee with respect to the employee's compensation, terms, contitions, or privileges of employment because the employee, or any person acting pursuant to the employee's request, engaged in any of the activities specified in paragraph (b) of this section.

"(b) Any person is deemed to have violated the particular Federal law in these regulations if such person intimidates, threatens restraints, coerces, blacklists, discharges, or in any other manner discriminates against any employee who has:

    "1. Commenced, or caused to be commenced or is about to commence or caused to be commenced a proceeding (under the Energy Reorganization Act), or a proceeding for the administrative or enforcement of any requirement imposed under such Federal statute;

    "2. Testified or is about to testify in any such proceedings; or

    "3. Assisted or participated, or is about to assist or participate in any manner in such a proceeding or in any other action to carry out the purposes of such Federal statute."

    Complainant was employed by respondent as a Level II Quality Control Inspector for slightly in excess of one year. He was terminated January 29, 1982 when, upon direction of Bechtel Corporation, the management company in charge of building the nuclear installation, UNS, the company charged with building the heating and ventilation facilities, was directed to reduce its personnel approximately eight percent. In compliance with that directive about thirty people were let go in the Reduction In Force. Of the thirty, four were Quality Control Inspectors. Prior to the Reduction in Force there had been thirty to thirty-five Quality Control inspectors. Three of the four inspectors who were reduced had little seniority. Complainant was senior to many inspectors who were retained.

    Quality Control Inspector were dispatched by the Sheetmetal Workers Union. The inspectors were required to inspect various welds made of the heating, ventilation and air conducting units to determine whether they conform to Federal requirements.

    There is no evidence that there was any premeditated plan to fire complainant. Until UNS directed to reduce its personnel there was no intent to reduce the number of Quality Control Inspectors, including complainant. Indeed, prior to receiving the directive (approximately January 22, 1932) from Bechtel to reduce forces, UNS had, on January 8, 1982, and on January 18, 1982, requested additional Quality Control Inspectors from the Sheetmetal Workers Union Business Manager, Jerry Dennis.

    The determination to let complainant go was made only as a part of a legitimate Reduction In Force.

    The question, however, is why complainant, rather than less senior inspectors, was selected for elimination. Was it because of complainant's cooperation with the Nuclear Regulatory Commission, or was because of other, legitimate reasons?

    UNS does not deny that Robert Mackowiak was technically a competent and dedicated Quality Control Inspector. In fact, at the time of the Reduction In Force complainant was given a laudatory letter. UNS contends, however, that despite this technical competence, complainant was an undesirable employee because of his intransigence, arrogance and abrasiveness. Complainant contends he had no inability to get along with others and contends he was

targeted for elimination because he was a "whistle blower".

    There is a total lack of valid documentary evidence to support complainant's position. That which was produced was hypothesis founded upon hearsay.

    Neither is there convincing oral testimony. Again, except for hypothesis founded upon hearsay, the only evidence that UNS had any knowledge complainant was talking to the Nuclear Regulatory Commission investigator, Paul Narbut, was the testimony of Mr. Narbut that he advised Berry Sachs, the UNS Quality Assurance Control Manager, that there was unrest among the four or five swing shift Quality Control inspectors. Complainant's name came up in this discussion. The discussion between Narbut and Sachs, however, was not in the context of Narbut advising Sachs that complainant was a "whistle blower" (indeed, the Nuclear Regulatory Commission investigators attempt to protect their sources) but rather, it was an effort by Narbut to let Sachs know that a problem existed so that Sachs might remedy the problem.

    I believe Sachs took the conversation as it was intended, and did not, because of this, attempt to retaliate against complainant.

    Thus, this case is not a "dual motive" discharge, where the discharge is in part due to protected conduct, but the employee would have been discharged even in the absence of the protected conduct. Healthy City School District v. Doyle, 429 U.S. 274 (1977). Here the protected conduct was not a motivating factor in the employee's decision to terminate. UNS, when faced with a Reduction In Force, selected complainant as one to be riffed because complainant was considered a problem employee. There is no satisfactory evidence that complainant was considered a problem employee because he had advised the Nuclear Regulatory Commission of instances of non-compliance.

    Discrimination cannot always be proved by direct evidence. Indeed, it is often impossible to provide direct evidence of discrimination and the conclusion of discrimination may be drawn from circumstances. Fischel Hospital v. Marshall, 629 F.2d 563 (1980). I do not here, however, from these circumstances, conclude that was motivated by any cause other than their conclusion that complainant was an undesirable employee because of his personality problems.

    At the time it was determined to eliminate Robert Mackowiak, UNS wanted to do so only if on solid ground. It was then that they discussed the Union contract with the Union business agent, Jerry Dennis. It was concluded by both Dennis and UNS that the Union contract provided no protection to complainant and that in the determination of which employees to reduce seniority played little role. If a less senior employee was considered, overall, superior to a more senior man, in the judgment of management, the less senior man could be retained. The contract language was:

"In case of layoffs, the last employee hired shall be the first laid off providing the ability and efficiency of the employee is substantially equal."

    In the view of UNS complainant was not substantially equal because of his attitudinal problems.

    Fellow workers testified that complainant resented authority, he was abrasive, arrogant, unreasonable and overbearing.

    Some tension can be expected between the welders and those who inspect the welds. Complainant seemed to take pleasure in discovering defects, however, and this attitude caused dissention between the inspectors and the craftsmen. To be sure valid defects were discovered. But, to comment "I got you guys screwing up again," is not the kind of language that promotes harmonious relations between fellow workers.

    Barry Sachs, on October 27, 1982 (long before there was any thought of a Reduction In Force) issued complainant a Confidential Counseling Statement in which Sachs stated: "Robert has displayed an attitude of mistrust and lacks acceptance of management directives," and further stated that complainant had a "negative attitude". The counseling statement was updated December 1, 1981 (again, long before any suggestion of a Reduction In Force) but while complainant was still talking to the Nuclear Regulatory Commission, and at that time Sachs stated complainant's attitude had "greatly improved with a positive attitude being displayed by him".

    Then, in early January complainant red tagged an area he had no authority to close down, and this action, again, activated the displeasure of his superiors.

    It was following this incident that the Reduction In Force notice was received and complainant selected as one to go.

    Considering all of the evidence, it is conclude there was no violation of either 42 U.S.C. 5851 or 29 C.F.R. Part 24.

    The determination that no discriminatory action was here taken is affirmed, and the complaint of Robert Mackowiak, is dismissed.

       EDWARD C. BURCH
       Deputy Chief Judge

Dated: SEP 30 1982
San Francisco, California    

ECB:csw