U.S. Department of Labor
Office of Administrative Law Judges
304A U.S. Post Office and Courthouse
Cincinnati, Ohio 45202
(513) 684-3252
Date Issued: June 22, 1984
Case No. 84-ERA-4
In the Matter of
ROBERT L. MURRAY
Complainant
v.
HENRY J. KAISER COMPANY
Respondent
Appearances:
Andrew B. Dennison, Esq.
For the Complainant
J. Patrick Hickey, Esq.
For the Respondent
Before: Daniel J. Roketenetz
Administrative, Law Judge
DECISION AND ORDER
Statement of the Case:
This matter arises under the Energy Reorganization Act
of 1974, as amended (42 USC §5851, et seq.), hereinafter called
[Page 2]
the Act. The Act prohibits a Nuclear Regulatory Commission
(NRC) licensee from discharging or otherwise discriminating
against an employee who has engaged in activity protected by
the Act. The Act, designed to protect so-called "whistle-blower"
employees from retaliatory or discriminatory actions
by their employers, is implemented by regulations found at
29 CFR Part 24. An employee who believes that he or she has
been discriminated against in violation of the Act may file
a complaint with the United States Department of Labor within
30 days after the occurrence of the alleged violation.
Robert L. Murray, the Complainant in this matter, filed
a complaint with the Wage and Hour Division, United States
Department of Labor, on November 23, 1983, alleging that
he was terminated from his employment with the Respondent
on October 31, 1983, because he engaged in certain activities
protected by the Act. (Admin. Ex. 1).1
IT IS RECOMMENDED that the complaint in this matter be
dismissed.
DANIEL J.
ROKETENETZ
Administrative Law
Judge
[ENDNOTES]
1 In this Decision and Order,
"Admin. Ex." refers to administrative
exhibits; exhibits; "Compl. Ex." refers to Complainant's
exhibits; and "Resp. Ex." refers to Respondent's exhibits.
Unless otherwise noted, all dates will be during the calendar
year 1983.
2 As opposed to a contract
employee or Job-shopper.
3 Complainant's deposition
testimony corroborates Cavanaugh's
testimony. (Resp. Ex. 54, p. 262) Complainant stated that it
was after Cavanaugh said that the Respondent would not pay
relocation benefits. "That's when we decided that maybe I
better talk to Mr. [Richard] Davis, which they brought in other
people."
4 David Mitchell, a witness or the
Complainant, testified
that Watkins told employees that Complaint was working on a
special project for Mr. Davis in a different area and,
therefore, there was no need to talk to him.
5 Relocation benefits or laid-off
employees are significant,
consisting of severance pay based on length of service, two
weeks pay in lieu of notice, all accrued vacation, relocation
to the point of origin or an equivalent distance, up to 30 days
living expenses (at $25 per day per family member), mileage
expenses and moving expenses.
6 On July 13, 1983, Complainant
was warned by Milt Bussell
for failure to notify Respondent of an absence from work.
(Resp. Ex. 14) On August 23, 1983, Complainant was given a
formal written warning because of "conduct not conducive to
organizational efficiency." (Resp. Ex. 15) On the same date,
Complainant was given a second formal written warning for
"absenteeism" and placed on probation until December 30. (Resp.
Ex. 16) In an appraisal received and signed by Complainant on
September 29, it was noted that "[e]xcessive absenteeism has
been a detriment to Bob's overall contributions." In signing
off on the document, Complainant wrote, "Absenteeism will
improve." (Resp. Ex. 18) Finally, in a memo dated october 14
from M.A. Edmonds to James Murray, it is stated that
Complainant's "record also indicates a poor attendance record
and previous warnings regarding his job performance/attendance
record." (Reap. EX. 19) It is noted that all of the above
documentation originated before the events which Complainant
contends precipitated his alleged unlawful discharge.
7 I am compelled to comment
that after having heard all the
Complainant's testimony in a five day trial, having read and
reread the transcript and deposition testimony, I am still not
sure of the exact nature or substance of the Complainant's
safety concerns. Whenever pressed for details, he could not
remember details. Thus, Complainant could not recall names of
those employees who were not qualified to perform quality
assurance tasks. When asked to identify applicable regulations
that were being violated, he was unable to do so. ". . . [H]e
forgot; it's much safer to forget, and it stands a better
cross-examination." McGinley v. Cleary, 2 Alaska Reports 269,
273 (1904).
8 Mark Geyer, a lead man in the
Hanger Department, testified
that he had never observed any hostility toward Complainant
by Watkins. I found Geyer to be a particularly impressive
witness, whose testimony was believable. On the other hand,
Mitchell seemed to harbor some anger toward the Respondent
for reasons which this record does not reflect. Nevertheless,
I found his general demeanor to cause his testimony to be far
less convincing than that of Geyer on the same subject matter.
9 The record is clear that
Watkins had no direct authority to
discharge employees. The lowest tier of authority was James
Murray. See testimony of Francis McCrystal. (Resp. Ex. 50)
10 Had the Complainant signed
a copy of the tear-out page
rather than a page actually torn from a handbook, his testimony
would have been more believable. Since an actual tear-out page
existed, one can assume the existence of the book from which it
was removed.
11 There is no showing that
intimidation by employees was
instituted by Watkins as an agent of Respondent. Thus, no
wrongdoing can be imputed to the Respondent. As far as harassment
by Watkins, I find that there is no merit to Complainant's
contention. At best, all that is demonstrated is that he
was guilty of judgment errors in assigning Complainant to a
separate work area and telling employees not to speak to
Complainant. It would be only upon a Strained inference that
I could conclude that Watkins' conduct violated the Act.