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: April 12, 1984
In the Matter of
Case Nos. 84-ERA-9 84-ERA-10 84-ERA-11 84-ERA-12
DONALD RICHTER
WILLIAM J. JOHNSON
RONALD D. LEHMAN
DALE R. MURPHY
Complainants
v.
BALDWIN ASSOCIATES
Respondent
Appearances:
Patricia Benassi, Esq.
For the Complainants
John Lashbrook, Esq.
For the Respondent
Before: Daniel J. Roketenetz
Administrative Law Judge
[Page 2]
RECOMMENDED DECISION AND ORDER ON MOTION FOR SUMMARY DECISION
Statement of the Case:
This matter arises under the Energy Reorganization Act
of 1974, as amended (42 USC §5851, et seq.), hereinafter called
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 "whistleblower"
employees from retaliatory or discriminatory actions by
their employer, 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.
The Complainants in this matter were all supervisory or
managerial employees of Respondent Baldwin Associates. Respondents
engaged in the construction of a nuclear power plant at
Clinton, Illinois, pursuant to a contract with the Illinois
Power Company. Illinois Power Company is an NRC licensee for
the construction of this facility.
Donald Richter and William J. Johnson filed complaints on
January 12, 1984; Ronald D. Lehman filed a complaint on January
24, 1984; and Dale R. Murphy filed a complaint on January 30,
1984. Upon the conclusion of the investigations by the Employment
Standards Administration, Wage and Hour Division of the
Department of Labor, all of the complaints were found to be
without merit. Thereafter, each of the Complainants made timely
requests for a hearing. Upon motion filed by counsel for the
Complainants, all of the complaints were consolidated for
hearing.
Subsequent to the Notice of Hearing, which issued on
February 16, 1984, counsel for Respondent filed a Motion for
Summary Decision on March 13, 1984. Complainants, through
counsel, filed their response on March 27, 1984, and a Reply
Memorandum from Respondent was filed on March 30, 1984. By
order dated April 4, 1984, the hearing previously scheduled
was cancelled, and parties were advised of my intention
to grant Respondent's Motion for Summary Decision.
[Page 3]
In essence, Respondent's Motion for Summary Decision
avers that there is no dispute to the material fact that none
of the Complainants engaged in or were about to engage in any
activity protected under §5851 of the Act. Therefore, Respondent
contends, as a matter of law it is entitled to an order
of dismissal.
A review of the Respondent's motion, the Complainants'
response thereto and the Respondent's Reply Memorandum reflects
that the principal issues to be resolved are:
1. Whether the Complainants engaged in any activities
applicability of §5851 of the Act;
2. Whether the Complainants engaged in any activities
protected by the anti-discrimination provisions of the Act;
and,
3. Whether the Complainants were unlawfully terminated
for the reasons proscribed by the Act.
Summary Decision Procedure:
The Respondent has filed its motion pursuant to the Rules
of Practice and Procedure for Administrative Hearings Before
the Office of Administrative Law Judges found at 29 CFR Part
18. Section 18.40(d) provides that the Administrative Law
Judge may enter summary judgment for either party if the
pleadings, affidavits, material obtained by discovery or
otherwise, or matters officially noticed show that there is
no genuine issue as to any material fact and that a party is
entitled to summary decision. The most compelling reason for
use of the summary decision procedure is where the facts,
when viewed in the light most favorable to the complaining
party, simply do not support a claim upon which relief could
be granted. In such circumstances, the granting of a motion
for summary decision avoids unnecessary, often protracted and
expensive litigation.
After careful consideration of the Respondent's motion,
the complaints filed by the respective Complainants, as well
as other documentary evidence submitted with numerous pre-
hearing motions (to which specific reference will be made), the
arguments and legal memoranda of the parties, I hereby make the
following:
[Page 4]
FINDINGS OF FACT AND CONCLUSIONS OF
LAW
Statement of Facts:
As earlier noted, on a motion for summary decision the
facts must be viewed in the light most favorable to the
Complainants. Moreover, there must be no dispute as to the
material facts which would affect the ultimate disposition
as opposed to collateral facts which, even though disputed,
would not in any event affect the ultimate outcome. The events
immediately preceding the terminations of the four Complainants
are related by Complainants' counsel in her response to the
motion for summary decision as follows:
In October, 1983 and NCR (nonconforming
(sic) report) was written by a new inspector
who had been certified for approximately
six weeks. It should be noted that
literally hundreds of NCR's are written
every week. The NCR was processed in
accordance with proper procedure. When it
was reviewed by the Engineering Department,
it contained what appeared to be obvious
errors and mislabeling and was sent back
to the inspector (Mike Eshelman) to be
reviewed and corrected, if necessary.
Eshelman reviewed the NCR and in which he
correctly identified other nonconforming
hardware, but concluded that he had not
made a mistake in his initial NCR and
that rather unauthorized work had been
performed. When the superceding NCR reached
Engineering, it was investigated by Mr.
[Complainant] Lehman and Mr. Bowers,
as well as some others, all of whom
investigated Eshelman's assertion that
unauthorized work had been performed.
Mr. Eshelman's immediate supervisor,
[Complainant] William Johnson, spoke with
him concerning the NCR. The contents of
that conversation and the inference which
is to be drawn therefrom are strongly in
[Page 5]
dispute; however, it is Complainants'
position that Johnson asked Eshelman
to recheck the NCR and hanger to assure
that he was correct because of the seriousness
of his charge, since if Eshelman's
assertions were inaccurate, an innocent
person could lose their job. Eshelman
maintained his position that unauthorized
work had been performed. Johnson, who after
inspecting the hardware, concluded that he
could not definitely prove Eshelman wrong,
allowing the NCR to be processed without
changing it even though he had authority
to do so. [Complainant] Richter, who
was Johnson's immediate supervisor, was
requested by Johnson to investigate the
situation. Eshelman's lead man, Gary
Blotke, also asked Richter to check into
the matter. Contrary to Illinois Power's
contention, at no time did Blotke indicate
to Richter that there had been any intimidation
of Eshelman by Johnson. Richter
conducted an independent investigation,
reviewed the hardware and concluded that
Eshelman's assertion of unauthorized work
could not be disproved, and the NCR was
sent back to Engineering where it was
processed in complete accordance with
procedure. Neither Richter, Murphy, nor
Lehman ever spoke to Eshelman at any time.
Id., pp. 5-6. (Bracketed material added.)
With the exception of the conversations between Complainant
Johnson and Blotke and Complainant Richter, the facts
are essentially as related by Respondent in its memorandum
in support of its motion. However, for the reasons later
expressed herein, a resolution of the apparent credibility
conflicts are unnecessary. The recitation of events gleaned
from statements of Inspector Eshelman and Illinois Power
Company Vice President Hall are for the sole purpose of
setting the scenario which preceded the terminations of the
Complainants.
Appended to a motion for a protective order filed by
[Page 6]
Illinois Power Company relative to a notice of deposition
served by the Complainants on Donald Hall, vice president,
is a statement of Inspector Eshelman relating his version of
the above events. (See Tab F of Memorandum in Support of Motion
for Protective Order, filed with the undersigned on March 16,
1984, a copy of which was served on all parties to this
proceeding.) Eshelman relates in his statement that on Thursday,
December 8, 1983, he was called into the Senior Lead Inspector's
office (Complainant William Johnson) with his immediate
supervisor, Gary Blotke. Eshelman relates that he was requested
to consider invalidating the second NCR prepared by him in
order to eliminate the unauthorized work portion and only to
report the current condition of the hanger. According to
Eshelman, Johnson stated that Resident Engineering was "hot
over this NCR" and that if he did not invalidate it, the
superintendent who signed off the "work complete" block would
probably lose his job.
In his statement, Eshelman reports statements purportedly
made by Complainant Richter to Gary Blotke the following day,
December 9, 1983. According to Eshelman, Blotke reported that
Richter told him that Complainant Johnson is "construction
oriented" and that he "just wants to get the place built".
With regard to Eshelman's refusal to invalidate the NCR,
Richter purportedly said that it was going to be a long, hard
battle and that Eshelman would probably lose in the end.
Finally, Eshelman relates that:
Statements like these I feel have an
undertone of intimidation and the impression
left on me was that I could not count
on any backing or support from my own
department which I also feel is very
intimidating in itself. I have not talked
this over with Mr. Richter due to the
results that Gary had in his conversation
with Don concerning this matter. I have
not and decided against discussing it
any further within the Quality Control
Department of Baldwin Associates due to
possible consequences that may be bestowed
upon me in the future.
Eshelman's statement was submitted to the Illinois Power
[Page 7]
Company, Quality Assurance Department, for their review and
"to utilize as they may deem necessary".
Following receipt of Eshelman's statement, the allegations
made by him were investigated by Illinois Power Company Vice
President Don Hall. In his final report, entitled "Evaluation
of Nonconformance Reports on Electrical Hangers", Mr. Hall
concluded, among other things, that Complainants Richter,
Johnson, Lehman and Murphy should be terminated. (See Tab I
appended to Illinois Power Company's motion for protective
order.) On January 5, 1984, the terminations of the Complainants
were effected by the Respondent at the request of Illinois
Power Company. This request was in accordance with paragraph 14
of the contract between the Respondent and Illinois Power,
which provides:
Purchaser's Rules and Regulations:
Contractor (Baldwin Associates) shall
abide by any and all rules Purchaser
(Illinois Power) may have in effect or
hereafter put into effect at the site of
the work pertaining to workmen, safety,
use of cameras, security procedures or
requirements, lighting of fires, and to
the handling of equipment, materials
or any other part of the work. If in
Purchaser's judgment it is desirable,
Contractor shall at Purchaser's request
remove any employee from the work. (See
p. 3, fn. 2, Respondent's memorandum in
support of Respondent's Motion for Summary
Decision.)
According to their respective complaints, Complainant Richter
was told that he was being terminated because it had been
determined that there was intimidation, and while he did not
intimidate anyone, he allowed it to continue; Johnson was
told that he was being terminated for failure to prevent
intimidation of a QC inspector; and Richter and Murphy were
terminated because of allegedly mishandling the disposition
of the NCR's prepared by Inspector Eshelman.
Following the investigation by the Department of Labor,
[Page 8]
each of the complaints was found to be without merit for the
same reasons. Specifically:
(1) You had not contacted the Nuclear
Regulatory Commission prior to your
termination.
(2) Based on the information you provided
and in my review of company records,
it is indicated that your termination
was based on your failure to
provide adequate support for a lower
level employee.
Contentions of the Parties:
Respondent contends in its Motion for Summary Decision
that since none of the Complainants complained to the Nuclear
Regulatory Commission prior to their termination, they were not
engaged in any activities protected by § 5851 of the Act. While
initially stating that the Complainants did not go to the NRC
prior to their terminations, counsel in her response to the
Motion for Summary Decision now asserts that three of the four
Complainants spoke with NRC personnel during an investigation
in October 1983. Counsel further states that although
Complainants did not initiate complaints themselves, they fully
cooperated and assisted the NRC in its investigation. (See
Complainants' response, p. 4.) Therefore, Complainants contend
that they did engage in protected conduct even within the
narrow interpretation Respondent seeks to impose upon §5851.
(Complainants' response, pp. 9-10)
Prior Contact with the Nuclear Regulatory Commission Is
Not a Prerequisite to Protection under § 5851:
In support of its contention, Respondent relies principally
upon the holding of the Sixth Circuit in DeFord v.
Secretary of Labor, 702 F.2d 281 (1983). However, Respondent's
reliance upon this case is clearly misplaced. The Court was
not confronted with the question of whether DeFord engaged in
any activities protected by the Act. Clearly, the facts
reflected that he had participated in an NRC investigation
several days prior to his discharge. The question before
the Court then was not whether DeFord's activity was protected
[Page 9]
but whether he was discharged because he engaged in protected
activity. Thus, in outlining the elements necessary to prove
a violation of the Act, it is not surprising that the Court
only included those most obvious elements of proof as reflected
by the facts before them. Accordingly, I find that the Court's
decision in DeFord is not controlling.
In furtherance of its contention, Respondent also argues
that in Information Notice No. 84.08; 10 CFR §50.7, entitled,
"Employee Protection" (February 14, 1984), the Department
of Labor "makes clear" that Congress intended to provide
protection "from discharge or any other acts of discrimination
for contacting the NRC". Respondent further points out that
the information notice states that the Act prohibits covered
employers from "discharging or otherwise discriminating against
any employee who contacts or seeks to contact the NRC. . . ."
The information notice referred to by the Respondent in its
Reply Memorandum is correct as far as it goes. However, it
is not all inclusive, nor dispositive of the question that
Respondent now raises before me.
The anti-discrimination provisions of the Act are remedial
in nature, and like other remedial statutes, they must be
broadly construed. The narrow construction of the Act as
suggested by the Respondent would place employees who would
otherwise be entitled to the protection of the statute in the
position of either formally commencing an action with the NRC
or, at the very least, manifesting an expression of their
intent to do so. As pointed bout by Complainants in their
response memorandum, §5851 also includes employees who engage
"in any other action to carry out the purposes of this Act
or the Atomic Energy Act of 1954". Undeniably, one of the
purposes of the Energy Reorganization Act and the Atomic
Energy Act is to insure compliance with safety regulations.
Permitting an employer to discipline or terminate an employee
for expressing safety considerations simply because the
employee has yet to formally communicate with the NRC or has not
expressed an intent to do so would emasculate the purposes of
this remedial legislation, frustrate the intent of Congress
and be contrary to public policy. A Broad interpretation of
the application of §5851 of the Act is supported by recent
holdings by the Secretary of Labor in Pennsyl v. Catalytic,
Inc., 83-ERA-2, Final Order of the Secretary, January 13, 1984,
where it was held that an employee protesting safety conditions
[Page 10]
was entitled to the protection of the Act, and Landers v.
Commonwealth Lord Joint Venture, 83-ERA-5, where the filing of
an NCR was found to be activity protected by the statute.
(Final Order of the Secretary, September 9, 1983)
As earlier noted, Complainants, in their response to the
motion for summary decision, now contend that because three
of the four Complainants cooperated in an investigation being
conducted by the NRC in October 1983, they were engaged in
protected activity. Complainants' approach in this regard
is somewhat Procrustean and is rejected for the following
reasons. Initially, I note that which Complainants cooperated
in the NRC investigation are not clearly identified. Moreover,
none of the Complainants alleged in their initial complaints
that their terminations were in any way related to their
cooperation with the NRC in October 1983. Statute of limitations
considerations aside, there is no alleged nexus between
the cooperation of the Complainants with the NRC in October
1983 and their terminations, which occurred several months
later based on events clearly not related to the earlier NRC
investigation, the purpose of which remains unspecified.
Simply because an employee has at some point in the course of
his or her employment cooperated with the NRC does not provide
the employee with blanket protection forever after. There is no
question that those Complainants who cooperated with the NRC in
October 1983 were engaged in protected activities at that
particular time. The Act clearly identifies such activity as
protected. However, the Complainants neither allege nor provide
any evidence whatsoever that their terminations were in any
way linked to those earlier protected activities.
Whether the Activities of the Complainants Are Entitled to
the Protection of the Statute:
In essence, the Complainants assert that they were engaged
in protected activity in that they carried out their duties in
connection with the nonconformance reports in question in
a manner identical to all other employees, who were not
disciplined, and that they were treated differently than other
employees charged with similar or more serious misconduct
and that the reasons asserted for their terminations were
a pretext.
The scope of the anti-discrimination provisions of the
[Page 11]
Act is to provide protection to so-called "whistleblowers".
While there is no legal definition for this term, it seems
that it has come to mean a person who protests alleged improper
or unlawful conduct by his or her employer. Because of the
broad construction of the statute, a protest may include the
reporting of such activities to governmental authorities or
some other outside sources, or it may take the form of some
internal protest. Thus, the term "whistleblowing" implies some
action adverse to the interests of some other person. The
appropriate inquiry is whether the Complainants were engaging
in or about to engage in some activities in the nature of a
protest of some alleged improper or unlawful activity of the
employer.
Complainants argue that they were performing their job
functions in accord with established procedure, which procedures
are approved by the NRC. Because such procedures concern
quality assurance and control, which are safety related, any
activities performed in that context entitle them to the
protection of the statute. This argument appears to be the
other extreme of that earlier advanced by the Respondent. The
construction of a nuclear power facility is highly regulated.
Such regulation reaches to every job function and affects every
employee to varying degrees. In essence, Complainants suggest
that because they were acting in accordance with procedure or
at least believe they were so acting, and since all procedures
relate ultimately to safety considerations in construction,
they are ipso facto entitled to the Act's protection. Clearly,
the anti-discrimination provisions of the Act are not intended
to usurp the management prerogatives of an employer. An overly
broad interpretation of the statue would make it one where an
employer would have to demonstrate a nondiscriminatory motive
for each and every termination of an employee who claimed that
he was acting in accordance with regulations.
The Complainants in this case were all in supervisory
or Managerial roles. That fact alone sets them apart from
rank and file employees who are charged with actual inspection
duties in quality assurance. In performing their respective
functions, it was their duty to review and disposition
documentation generated by subordinate personnel, including
inspectors such as Eshelman. In attempting to effect a resolution
of Eshelman's NCR pertaining to allegedly unauthorized
work, there is no question that all four Complainants were
[Page 12]
involved to some degree. In his complaint, Complainant Johnson
states that he did express concerns to Eshelman that such an
allegation could lead to the termination of another employee;
Complainant Richter acknowledges that he was aware that Johnson
was going to speak to Eshelman; Complainant Lehman reviewed
both NCR'S; and Murphy was involved only in signing off on the
NCR at some point. Significantly, whatever the extent of their
respective involvement, there is no evidence that any of them
were about to engage in or that they were engaging in any
activities protected by the statute (i.e., "whistleblowing"),
even by the most liberal interpretation.
The evidence does reflect that the project owner, Illinois
Power Company, was confronted by an allegation of intimidation
of an inspector by persons who were charged with implementing
corrective measures on the heels of a stop work order for
that very reason. Even assuming that Inspector Eshelman
overreacted, overemphasized or misrepresented the extent of
the Complainants' involvement in resolving the NCR's in question,
there is absolutely no evidence that either Illinois
Power or the Respondent terminated the Complainants for unlawfully
motivated reasons. Indeed, a failure to have addressed
Eschelman's allegations may have resulted in a complaint by him
under this same Act.
It is unfortunate when an employer decides to terminate an
employee. However, the employer's right to do so is unlimited
except to the extent prohibited by law. That the terminations
of the Complainants may have been without due process, may
have been unfair or that they may have been simply victims
of circumstances does not afford them a remedy under this
statute. There must be a showing that they were discharged for
engaging in protected activity. Here, there are no indications
that the Complainants were doing anything other than performing
their assigned job duties. The project owner, following its
investigation, concluded that those job duties were performed
improperly; and pursuant to their contract with the Respondent,
requested that the Respondent discharge the Complainants. Moreorver,
it is clear from the facts viewed most favorably to the
Complainants that they were not engaged in any activities which
could be remotely construed as protesting unlawful or improper
practices of their immediate employer or Illinois Power Company.
Therefore, the issues of due process, fairness or unjust
discharge are not litigable under the anti-discrimination
[Page 13]
provisions of this statute. The Act does not confer authority
on an administrative law judge to substitute his judgment for
that of management.
Conclusion:
For the foregoing reasons, I conclude that the Complainants
were not engaged inprotected activity. Therefore, it
follows that their discharges did not violate the Act or the
regulations.
RECOMMENDED ORDER
IT IS RECOMMENDED that Respondent's Motion for Summary
Decision be granted and that the complaints be dismissed in
their entirety.