Timeliness of Complaint

    Complainant was terminated from his position of Quality Control Supervisor by the employer herein on March 11, 1982. His written complaint to the Department of Labor was filed on June 3, 1982. However, I credit complainant's testimony that he personally visited a local office of the Wage and Hour Division well within the 30-day filing requirement provided by 29 C.F.R. § 24.3(b), only to be mistakenly advised that they could not do anything for him. It was not until some three months later that officials at the Wage and Hour Division were advised that indeed they did have the authority and responsibility to receive the instant complaint. Under such circumstances, I find that complainant would have filed the

required written complaint in a timely fashion had he not been misinformed, unintentionally, by the officials at the Wage and Hour Division whom he first contacted. It is therefore concluded that his complaint should be deemed to have been constructively filed on the occasion of his first visit to the Wage and Hour Division, and therefore it was timely for purposes of obtaining the jurisdiction provided by the Act and regulations. See School District of City of Allentown v. Marshall, 657 F.2d 16 (3rd Cir. 1981).

No Evidence of Violation

Supervisor, was instructed to report directly to the president of the company, who for internal purposes assumed the additional title of Assistant Quality Assurance Manager.

    The gist of the complaint in this case is that throughout his tenure with the employer complainant had many difficulties with the production superintendent Guffey. Examples cited were incidents when complainant felt that Guffey was violating prescribed procedures in terms of installing tendons out of sequence; when Guffey asked complainant to certify certain Bechtel welders, which complainant felt he was not qualified to do (thus he refused); when complainant felt that Guffey was using the wrong gauge to measure the stress on tendons and complainant reported the incident to the company president (who in turn directed Guffey to stop the practice); and when complainant felt that Guffey was not properly greasing tendons as they were installed. Complainant testified that he was tired of calling Jacobson almost daily and he believed he could best obtain support for his ongoing problems with Guffey from the local state quality assurance overseers. Therefore he started "working closely" with Arizona Public Service officials in September of 1981. In sum, the best characterization of the situation was that given by former Quality Assurance Manager Jacobson who stated that he did not think Guffey knew all the quality control procedures or understood how they were to be followed, and that the kind of "butting heads" that occurred between complainant and Guffey was a "habitual problem" between production and quality control personnel in the industry.

    Beginning shortly after the resignation of Jacobson as fulltime Quality Assurance Manager in November 1981, the employer's president, who has been in the business for over 30 years, began making periodic on-site visits in the course of which he for the first time became personally acquainted with complainant and his job performance. Specifically, between December 8, 1981 and early March of 1982, he observed what he considered to be inadequate quality control procedures within his organization at the site; e.g., finding that complainant and another inspector had spent all night on the job, that calculations and record-keeping were not being done in the best possible manner. As a consequence, he gave informal instructional lessons to complainant and the other inspectors and by early March 1982, which coincided with the completion of the first of three of the planned units at the Palo Verde project, he had decided to revamp his quality control operation for

the next phases. Accordingly, on March 11, 1982, after complainant had been called back to the Gardena headquarters for a session involving paper-work that had to be finalized for submission to Bechtel at that juncture, complainant was informed that he was being terminated. At the time there were no other inspectors on the job as they had either been laid off or had quit.

    Although complainant never filed or caused any enforcement proceeding under the Act, I find that his quality control job activity, by its very definition, and his contacts with the Arizona Public Service representatives responsible for overseeing compliance with nuclear reactor installations, broadly construed constituted "action to carry out the purposes of this Act or the Atomic Energy Act of 1954, as amended." 42 U.S.C.A. § 5851(a)(3); 29 C.F.R. 24.2(a)(3).

    I do not find, however that complainant was discharged because he engaged in such protected activities. Rather, he was terminated because, notwithstanding his satisfactory job performance under Jacobson, once Jacobson had departed and complainant came under the direct scrutiny of Stubbs, his performance was found less than what Stubbs wanted for the future staffing of his quality control operations at the Palo Verde project. The clear import of the testimony is that in effect the training of the quality control inspectors by Jacobson did not produce the expert habits and know-how desired by the more experienced Stubbs. And it was complainant's misfortune to fall victim to this happenstance. It is noted that complainant was never admonished or otherwise told by the employer that he should not continue "butting heads" with Guffey or that he should not continue "working closely" with Arizona Public Service representatives, and that in their depositions neither the Arizona Public Service representatives (Fowler and Forrester) nor Bechtel's Quality Assurance Manager (Robertson) claimed that complainant was ever dissuaded from contacting them or maintaining his assigned responsibilities regarding Guffey and the operations under him. Also, it is uncontroverted that when complainant was replaced by Pam Donigan as Quality Control Inspector (and then Quality Assurance Manager), she was given no advice or instruction either to decrease vigilance of Guffey's operational activities or stop contacts with assigned regulatory representatives. Finally, I fully credit the testimony of the employer's president that, notwithstanding Guffey's relationship with complainant, when complainant was to be replaced by Ms. Donigan, Guffey in fact recommended that complainant be retained as the

inspector under her. Mr. Stubbs chose another inspector, however, because he thought it would not be prudent to retain complainant in a demoted status.

    In summary, having weighed the record in its entirety I find no evidence that complainant's discharge was a pretext or retaliation for his differences with operations superintendent Guffey, or that the employer had any reason to chastise or stop complainant from enforcing the safety requirements on the nuclear project. I am convinced that Guffey's actions were basically attributable to his naturally gruff demeanor and his professional interest in getting production done on schedule, and that the employer's decision not to retain complainant for the next phase of the project was a legitimate business judgment. In short, this is not a "dual motive" case; I find no evidence that complainant would not have been discharged "but for" his engaging in the aforesaid protected activities. See Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 273 (1977); Consolidated Edison Company of New York, Inc. v. Donovan, 673 F.2d 61 (2nd Cir. 1982); Ellis Fischel State Cancer Hospital v. Marshall, 629 F.2d 563 (8th Cir. 1980). I therefore conclude that there has been no violation of the Act and regulations, that the complaint is without merit and it should be denied.

    It is therefore recommended that the Secretary of Labor reverse the July 2, 1982, determination of the Director of Enforcement of the wage and Hour Division and deny the complaint.

       ALFRED LINDEMAN
       Administrative Law Judge

Dated: APR 21 1983
San Francisco, California

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