Respondent received the aforesaid notification on February 25,
1984 and appealed the decision on February 29, 1984. The case was
transferred by the Office of Administrative Law Judges from
Washington D.C. to San Francisco, California on March 5, 1984 and a
hearing was scheduled pursuant to notice issued May 11, 1984.
Counsel for claimant filed an appearance on June 8, 1984. The
hearing was held on July 11th and 12th, 1984 in San Luis Obispo,
California.
The matter was submitted subject to an order allowing the
parties to file proposed findings of fact and conclusions of law
and briefs by September 7, 1984 and the waiver by the parties of
all time requirments for the issuance of a recommended decision and
order until October 7, 1984.
FACTUAL BACKGROUND
Steven Lockert was a Quality Control Inspector for Pullman
Power Products at the Diablo Canyon Nuclear Power Plant, Avila
Beach, California from July 25, 1983 to December 15, 1983. His
duties consisted of performing inspection of welding work performed
by craft workers, verifying hardware procedures and work pursuant
[Page 3]
to appropriate required codes and standards.
Respondent had approximately 2,000 employees at the job site
of which 250 were involved in quality control and assurance work.
Approximately 120-125 of the employees, at the relevant times, were
quality control inspectors. The essential function of quality
control personnel is to perform visual examination of work to
assure correct installation. Personnel assigned to quality
assurance matters review the necessary paper work both before and
after the craft work. Complainant was one of the quality control
welding inspectors at the time of his discharge.
As part of his duties, Complainant was required to record and
report work which constitutes non-conformance in what is known as
Discrepancy Reports (DR). He also prepared Deficient Condition
Notices (DCN) identifying possible deficient conditions and
recommended Steps To Prevent Recurrence (STPR) of deficient
conditions.
Complainant was an employee paid to inspect welding craft work
and to prepare documents such as DR, DCN, STPR as part of an
overall program of assuring quality control of the work at the job
site.
Complainant's immediate supervisor was Jim Cunningham.
Cunningham was responsible to Russ Nolle, who in turn was
responsible to Frank Lyautey. Harold Karner was the manager of all
the aforsaid as he was field quality assurance and quality control
manager.
Complainant asserts and testified that he reported to his
supervisors a series of discrepancies in the course of his
inspection duties which resulted in adverse reactions of his
supervisors and argues that such was the motivation for his
termination.
The series of discrepancies referred to by Complainant
occurred between September 1, 1983 and December 14, 1983 and
included such matters as alleged failure of welders to use and
check the appropriate gas flow rates, failure of welding equipment
to meet specifications, improper welding procedures, improper
modification of "fill-it" welds, use of defective bolts, inability
to gain access to check full penetration welds, electode storage
allegedly in violation of code, improper rupture restraints, and
[Page 4]
alleged failure to provide appropriate quality control coverage of
welders certification testing.
The aforesaid discrepancies were not frivolous but were of a
substantial and serious nature and acknowledged as such by the
employer at the hearing.
Of significance is the fact that in the expression of concern
by Complainant, as reported to supervisory personnel, the
Complainant was doing that which he was employed to do as a Quality
Control Inspector. In essence, he was performing the job for which
he was employed to accomplish. In addition, the Complainant, in
the course of his employment from July 1983 to December 1983 did
not report an unusual number of discrepancies or deficiencies for
the period of time involved as compared to other quality control
inspectors. The nature of the reports were not unique. It was
repeatedly emphasized at the hearing that the Complainant was a
qualified conscientious employee accomplishing his job in an
expected manner and was not engaging in any extraordinary abrasive
behavior or otherwise involved in unusual personality conflicts at
the job site.
The very nature of the work of a quality control inspector may
result in friction and differences of opinion between the craft
personnel (welders) and the inspectors who are paid to pass
judgment on the quality of work performed. Similarly, the
subjective nature of the work of a quality control inspector may
result in differences of opinion between an inspector such as
Complainant and his supervisory personnel. In this case, although
some of the discrepancies and/or deficiencies called to the
attention of supervisors by Complainant were disagreed with by such
supervisors, they were not unreasonable or frivolous concerns.
Complainant acknowleged that in dealing with possible violations of
standards, reasonable men may have differences of opinion and such
matters are subject to disagreement.
Corrobrative of the fact that Complainant was a conscientious
qualified employee performing his duties in the manner expected of
him, Complainant was recommended for a merit increase in pay in
early December 1983.
On October 17, 1983 the Complainant was observed by Mr. Karner
in Karner's office researching some material. Karner asked Russ
Nolle to check out where Complainant was supposed to be since
[Page 5]
Karner felt that Lockert's being in his office was unnecessary.
Nolle and Karner had been receiving complaints that the craft
(welders) were being held up in their work when inspectors were out
of their assigned work areas. Apparently the craft workers cannot
proceed with their work unless an inspector is present to approve
the quality of their work as it progresses.
Nolle verbally warned Complainant at that time that in being
in Karner's office, notwithstanding the reason, he was away from
his assigned work area and if it happened again he would be
terminated from his employment.
On December 14, 1983 at approximately 6:30 a.m., Jim
Cunningham, Complainant's lead man, told Complainant he was
assigned to "area ten" to work. Complainant requested and was
given permission to complete the appropriate paper work for two
STPR's and to go to containment two for such purposes. Cunningham
testified that he gave such permission as he estimated that it
would take about a half an hour for Complainant to complete such
paper work and that Complainant would be able to get to area ten by
7:15 to 7:30 a.m. Apparently Mr. Lockert completed the two STPR's
and decided to accomplish some other administrative paper work and
duties and did not reappear at the quality control office until
approximately 9:20 a.m. Jeff Charbaneau, a supervisor, reprimanded
him for not being in his assigned work area ten and that his
absence held up production. Complainant apologized for the
situation and left to cover area ten as assigned. Charbaneau did
not take any disciplinary action as he was not Complainant's
regular supervisor and Russ Nolle, who was, was not at work on
December 14, 1983.
The evidence established that the fabrication shop in area ten
needed a quality control inspector and Pat Watson arranged with
Cunningham to have Lockert cover the situation on December 14,
1983. Area ten kept calling Pat Watson almost every half hour
thereafter that Lockert had not arrived and they needed someone
right away. Lockert's absence from area ten delayed the work on a
a rupture restraint project and no other qualified man was
apparently available.
At approximately 7:00 a.m., after the first inquiry by area
ten personnel as to the whereabouts of Lockert, Pat Watson
contacted Joe Watson. Joe Watson contacted Cunningham who told him
that Lockert had some paper work to complete in containment two and
[Page 6]
would then head on down to the area ten fabrication shop. At
approximately 7:40 a.m. Pat Watson again called Joe Watson
inquiring as to the location of Lockert and again at 8:10 a.m. a
similar phone call was made. Joe Watson contacted Cunningham who
replied that he was unable to locate Mr. Lockert.
Jim Cunningham testified that if had known that Complainant
was going to accomplish tasks other than the completion of the two
STPRs, he would have told Complainant to do it at another time or
he would have gotten another man to cover area ten on the morning
of December 14, 1983. He further testified that after 8:00 a.m.,
he want looking for Complainant because of the urgency expressed by
area ten personnel but was unable to find him. He later stated
that he had seen Complainant between 7:30 and 7:45 a.m. but wasn't
looking for him at the time, which is curious since he knew it was
beyond the time that he orginally expected Lockert to be at area
ten. There is serious question as to how diligent Mr. Cunningham's
efforts were in attempting to locate Complainant during his absence
from the assigned work area ten. Cunningham's failure to leave a
message for Complainant, search for him or make inquiry of others
in containment two renders his testimony in this regard suspect.
Complainant's supervisor, Russ Nolle, was not present during
the events of December 14, 1983 but when he was informed on
December 15, 1983, he got particularly upset and he decided to
terminate Mr. Lockert from his employment and reported the matter
to Harold Karner. Mr. Nolle apparently was upset that one of his
men had held up production by not being at his assigned work area
and particularly because Complainant was warned once before in
mid-October about the same behavior and had been told at that time
that if it happened again he would be terminated from his
employment.
The rules in existence at the job site provide that an
employee who leaves assigned work areas without authorization is
subject to termination and is not eligible for re-hiring. Although
there was no evidence of any other employee being terminated for
such reason there similarly was no evidence of any other employee
committing such a violation of an equivalent duration.
When Mr. Karner was told by Mr. Nolle of the events of
December 14, 1983 and the recommendation to fire Complainant,
Karner told Nolle to document the events and he would ultimately
make the decision. Such was done and Mr. Karner, as quality
[Page 7]
control manager, made the decision to terminate Complainant. The
sole basis of the termination, according to both Mr. Nolle and Mr.
Karner was Complainant's absence from his assigned work area on
December 14, 1983.
A termination notice was prepared with a brief description of
the events and specifying that the reason for termination was
failure to appear at assigned work area for approximately 3 hours
on December 14, 1983. At the trial, there was some confusion with
reference to the termination notice because of the location of
certain signatures on the document and the use of the pronoun "I".
Without explanation it is difficult to determine to whom the "I" is
referring. Testimony established that page one of the brief facts
on the notice of termination were written by Joe Watson who signed
the document on page two and not Russ Nolle who signed on page one
as supervisor because Mr. Nolle was not present at work on
December 14, 1983. Page two of the termination notice was written
by Jeff Charboneau.
Complainant never reported the discrepancies and deficiencies
previously referred to above, to any outside source beyond his
supervisors while in the employ of Respondent. He never commenced,
caused o be commenced or threatened to commence a proceeding as
referred to in 42 U.S.C. § 5851(a)(1), testified or was about to
testify in any such proceeding or, assisted or participated or was
about to assist or participate in such proceeding or any other
action as referred to in 42 U.S.C. § 5851(a)(2)(3).
LEGAL ISSUES
1. THE MOTION OF THE RESPONDENT TO DISMISS THE MATTER FOR
LACK OF JURISDICTION IS DENIED .
The Secretary of Labor has not lost jurisdiction to hear this
proceeding. At the outset of the hearing on July 11, 1984,
Respondent moved to dismiss on the grounds that 42 U.S.C. §
5851(b)(2)(A) provides that the Secretary of Labor shall issue an
order granting the Complainant's relief or denying the complaint,
within 90 days of receipt of the complaint, which in this case was
January 20, 1984. Respondent asserts that by not complying with
the aforesaid statute by April 20, 1984, the Secretary of Labor has
lost jurisdiction. Such argument is without merit.
[Page 8]
The time specifications of the statute are made for the
purpose of expediting the proceeding for the benefit of a
Complainant who may have been wrongfully terminated from his
employment in violation of the statute. These time requirements
are not jurisdictional. Violation of the non-discretionary time
limits imposed by the statute subject the Secretary of Labor to a
mandamus proceeding under Section 1361 of Title 28. (See 42
U.S.C.A. 5851(f)). Such is the only consequence of the failure to
comply with the unrealistic time limits set by law and the
Secretary of Labor is not divested of jurisdiction to act in the
case.
The case herein was processed in an expedited manner and
notice of hearing was issued as promptly as possible subject to the
administrative resources available, availability of courtroom
space, judge, and other factors requiring time for the parties to
prepare far the hearing.
I conclude that the Secretary of labor has not lost
jurisdiction of the matter and, secondly, Respondent waived any
right to complain of any delay in the scheduling of the hearing by
his failure to raise such objection prior to the hearing date by
an appropriate mandamus proceeding pursuant to 28 U.S.C. § 1361
which is the sole remedy available to him under 42 U.S.C.A. §
5851. The motion by the Respondent to dismiss is therefore denied.
2. CLAIMANT IS NOT ENTITLED TO THE PROTECTION OF 42 U.S.C.
§ 5851 AS HE DID NOT ENGAGE IN ANY PROTECTED ACTIVITY
WITHIN THE COVERAGE OF THE STATUTE.
42 U.S.C. § 5851 provides:
"(a) no employer, including a commission licensee,
an applicant for a commission license, or a
contractor or a sub-contractor of a commission
licensee or applicant, may discharge any employee or
otherwise discriminate against any employee with
respect to his compensation, terms, conditions, or
privileges of employment because the employee (or
any person acting pursuant to a request of the
employee).
(1) Commenced, cause to be commenced, or is about
to commence, or cause to be commenced a proceeding
under this chapter or the Atomic Energy Act of
[Page 9]
1954, as amended, or a proceeding for the
administration, or enforcement of any requirement
imposed under this chapter or the Atomic Energy
Act of 1954, as amended;
(2) Testified or is about testify in any such
proceeding or;
(3) Assisted or participated or is about assist
or participate in any manner in such a proceeding
or in any other manner in such a proceeding or in
any other action to carry out the purposes of this
act of the Atomic Energy Act of 1954 as amended."
The essential elements of a discrimination claim under the Energy
Reorganization Act must first be determined. As was stated in
DeFord v. Secretary of Labor , 700 F.2d 281(1983):
"By its terms, Section 5851(a) prohibits certain
employers from discriminating in practically any job
related fashion against an employee because the
employee participated in NRC investigations or
enforcement proceedings. The particular elements of a
valid discrimination claim would appear most obviously
to include: (1) that the party charged with
discrimination is an employer subject to the Act; (2)
that the complaining employee was discharged or
otherwise discriminated against with respect to his
compensation, terms, conditions, or privileges of
employment; (3) that the alleged discrimination arose
because the employee participated in an NRC proceeding
under either the Energy Reorganization Act of 1974 or
the Atomic Energy Act of 1954."
A reading of the statute indicates that as to element (3)
recited by the court, the alleged discrimination must arise because
the employee not only "participated" in the referred to Proceeding
but that such "participation" includes "commencing, caused to be
commenced, or is about to commence or caused to be commenced" such
proceeding; "testified or is about to testify" in such proceeding;
or "assisted or participated or is about to assist or participate"
in such a proceeding or does anything else in connection with such
a proceeding.
[Page 10]
Turning to the facts at hand, there is no evidence of any kind
that as to element (3) referred to by the court in DeFord or as
elaborated in detail in the statute itself, that Complainant did
anything during his employment constituting a nexus with such a
proceeding referred to in the statute. To the contrary, any
reported deficiencies or discrepancies were made by Complainant
through appropriate employer channels and in so doing, Complainant
was performing the duties for which he was employed.
There is no dispute between the parties that the Respondent is
an employer subject to the Act and that Complainant was discharged
from his employment. However, there is also no evidentary dispute
between the parties that Complainant reported safety discrepancies,
deficiencies and concerns to appropriate employer channels during
his employment. The employee protections of 42 U.S.C. § 5851 does
not apply to such activity. Complainant did nothing sufficient to
come within the protected activity of the statute.
"The purpose of the Act is to prevent employers from
discouraging cooperation with NRC investigators, and
not merely to prevent employers from inhibiting
disclosure of particular facts or types of
information. Under this anti-discriminatory provision,
as under the NLRA, the need for broad construction of
the statutory purpose can be well characterized as
.. necessary" to prevent the [investigatory agency's]
channels of information from being dried up by employer
intimidation, DeFord v. Secretary of Labor ,
supra, at 286.
There was no evidence presented at the hearing that
Complainant, prior to his discharge, provided any information
regarding his safety concerns to any investigative agency or
intended to do so but to the contrary, there was evidence,
uncontradicted, that the employer personnel who participated in the
Complainant's discharge, had no knowledge of any such activity of
the Complainant which would fall within the protected activity of
the statute under which this proceeding is brought. The lack of
knowledge of any protected activity of Claimant by his employers is
because there was no such activity.
The Legislative history of the Act clearly establishes that
the statute "offers protection to employees who believe that they,
have been fired or discriminated against as a result of the fact
[Page 11]
that they have testified, given evidence, or brought suit under the
Energy Reorganization Act of 1974 or the Atomic Energy Act." 1978
U.S. Code Cong. and Adm. News , page 7303. The Complainant is not
such an employee.
Counsel for Complainant relies on Batts v. TVA , 82 ERA 15
(ALJ Decision 1982), Atchinson v. Brown and Root , 82 ERA 9 (ALJ
Decision, 1982, Pensyl v. Catalytic, Inc. , 83 ERA 2 (Final Order of
Secretary of Labor, January 13, 1984), Richter v. Baldwin
Associates , 84 ERA 9-12 (ALJ Decision, 1984), for the proposition
than an employee bringing quality control and safety problems to
the attention of his own management as part of his normal duties is
protected activity under the Act. I disagree that such an
interpretation of the Act is valid for reasons heretofore stated
and the reliance on such cases is misplaced.
The recent case of Mackowiack v. University Nuclear Systems,
Inc . 735 F.2d 1159 (9th Cir. 1984) has resulted in further
confusion of the issue of whether the protected activity of the
statute covers internal safety and quality control complaints
brought to the attention of the employee's own management. In
Mackowiack , the complainant was fired in January of 1982, after
talking with inspectors from the N.R.C. in September of 1981 in
connection with their investigation of UNSI's work. The employer
was aware of Complainant's involvement in late September or early
October 1981 and terminated him in January 1982. The record of the
case supported a finding that UNSI's termination of Complainant was
motivated in part by his contact with N.R.C. Clearly, Mackowiack
was engaged in protected activity covered by the statute.
Curiously, the court further determined that Complainant's internal
safety complaints to the employer triggered the application of the
statute based on PHILLIPS v. Department of Interior , 500 F.2d 772
(D.C. Cir. 1974).
An examination of Phillips reveals that the court was faced
with an interpretation of the Mine Health and Safety Act, 30
U.S.C. § 820(b)(1) which has similar "whistle blower" provisions to
42 U.S.C. § 5851(a). In Phillips , the court held that a safety
complaint to a foreman was "protected activity" because it was an
essential preliminary step in constituting notice to the Secretary
of Interior or his authorized representatives and the institution
of proceedings which were in fact "protected activity" under 30
U.S.C.A. § 820(b)(1). The court's reasoning was because of the
existence of the procedure at the particular mine which guaranteed
[Page 12]
that the safety internal complaint of a "whistle blower" will
result in a Federal Mine Inspector being called in if the employer
neglects or refuses to correct the cause of the complaint. It was
because of this particular procedure that an initiating internal
safety complaint which would result in a Federal Mine Inspector
being called in that the court in Phillips held that an internal
complaint was protected activity.
Consequently the court in Mackowiack drew an erroneous
analogy
that all internal safety complaints under 42. U.S.C. § 5851(a) are
protected activity because of the Phillips decision making such a
conclusion under 30 U.S.C. § 820(b)(1) on a unique set of facts
which were not similar to those in Mackowiack .
In the case at bar there is no evidence that a quality control
inspector who performs his job in a normal fashion falls within the
protected activity of 42 U.S.C. § 5851(a). The authorities holding
to the contrary constitute a judicial amendment to a legislative
enactment.
3. ASSUMING THAT THE COMPLAINANT'S ACCOMPLISHMENT OF
HIS NORMAL EMPLOYMENT DUTIES AS A QUALITY CONTROL
INSPECTOR IS PROTECTED ACTIVITY WITHIN 42 U.S.C.
§ 5851, SUCH ACTIVITY DID NOT CONSTITUTE THE BASIS
FOR THE TERMINATION OF HIS EMPLOYMENT.
Even if the assumption is made that Complainant was engaged in
protected activity under the Act, then the evidence must be
evaluated as a case involving a "dual motive" discharge. Mt.
Healthy City School District Board of Education v. Doyle , 429 U.S.
274. 287 (1977). In such cases, the employee first has the burden
of showing that his conduct was protected and that the protected
conduct was a motivating factor in the employer's decision to
terminate him. Thereafter the burden shifts to the employer to
show by a perponderance of the evidence that it would have reached
the same decision as to the employee's dismissal even in the
absence of the protected conduct. Consolidated Edison Company v.
Donovan , 673 F.2d 61 (1982). In other words, the employee would
have not been dismissed "but for" his engaging in protected
activity.
The question is not merely whether there exists independent
and proper grounds for the termination or whether the employer had
[Page 13]
a legitimate reason for terminating the Complainant, but whether
the employer would have terminated him if only the valid ground for
discharge had existed.
Applying the evidence to the aforesaid law, it is the opinion
of the undersigned that first, Complainant has not met his burden
of showing that his conduct was protected under the Act; secondly
assuming the normal accomplishment of his duties as testified to as
a quality control inspector is protected activity, the employer has
shown by a preponderance of evidence that Complainant would have
been terminated for being absent from his authorized work place
even in the absence of such protected conduct. I cannot conclude
from the evidence that the Complainant would not have been
dismissed but for his engaging in his required duties as reported.
The sole basis for Complainant's termination was Nolle's
recommendation to fire Complainant for failure to appear at his
assigned work area for approximately three hours on December 14,
1983. Complainant has not presented persuasive evidence that the
employer's recited reason for the termination was an excuse in
order to fire him for the reasons that he had reported safety
discrepancies and deficiencies or that such activities were the
moving cause of the termination notwithstanding the reason that
Complainant was absent from his assigned work place on December 14,
1983.
The evidence demonstrates that Nolle and Karner fired
Complainant for the sole reason given and their credibility in this
regard was unimpeached. One might well disagree with their
decision as I am sympathetic with Complainant who impressed me as
a conscientious qualified worker who was the victim of a
combination of circumstances the responsibility for which must be
placed at the feet of Jim Cunningham. Mr. Cunningham authorized
Complainant to go to containment two on December 14, 1983 prior to
his reporting to area ten were he was assigned to work as
Cunningham anticipated that Complainant would be able to go to the
assigned area ten by 7:15 to 7:30 a.m. Cunningham's testimony was
unconvincing as to the efforts he made to earnestly locate
Complainant after area ten personnel were frantically calling as to
Complainant's whereabouts. I find Cunningham's testimony
unbelievable in this regard. Although the penality of termination
was unduly harsh in view of the surrounding circumstances and
cavalier behavior of Cunningham, it is and was a management
perogative and not my function to superimpose my judgement to the
contrary in the absence of a violation of the Act. Any remedy of
[Page 14]
the Complainant is outside this forum.
RECOMMENDED ORDER
It is hereby recommended that the complaint of Steven Lockert
be dismissed with prejudice.
HENRY B. LASKY
Administrative Law Judge
DATED: 5 OCT 1984
San Francisco, California
HBL:sah
[ENDNOTES]
1 The file reflects that
Complainant was
representing himself and did not secure the
services of an attorney for the purposes of
filing his complaint. Consequently the basis
for the award of attorneys' fees is unknown.