Case No. 84-ERA-17
Energy Reorganization Act of 1974

In the Matter of:

Richard L. Cram,
    Complainant

    v.

Pullman-Higgins Company,
    Employer.

Appearances:
Leslie Nixon, Esq.
    For Complainant

Mark T. Broth, Esq.
    For Employer

Before: Chester Shatz
    Administrative Law Judge

    This case involves a "whistle-blower" complaint filed in

accordance with a special employee-protection provision of the Energy Reorganization Act of 1974 (42 U.S.C. § 5851), and the regulations issued by the Secretary of Labor, at 29 C.F.R. § 24 (1980), implementing the employee protection provisions of the statute. by that complaint, Richard L. Cram, has alleged that Employer discharged him from its employment on December 30, 1983 in retaliation for activities protected by the statute. The numerous delays in this proceeding has made it impossible to comply with the time limitations set forth in the regulations [the complaint was made on January 27, 1984 and the Area Director issued a decision in favor of the Complainant on February 28, 1984. Employer then filed an appeal on March 2, 1984 which was received by the Department of Labor on March 6, 1984. The case was then sent to the Boston bearing office and set for hearing. However, Complainant then retained counsel who requested a continuance to pursue discovery. Discovery was permitted by me and was to be completed within a short time frame. The case was then set for hearing which was held on May 7 and 8, 1984 at which time the parties requested permission to file briefs within 10 days after receipt of transcript; the transcript was not received until May 30, 1984, and Employer's counsel then requested a 10-day extension because of other pressing matters he had been handling. All briefs were received by June 22, 1984 when the record was closed).

    In the proceedings below the Area Director held that Mr. Cram was a protected employee engaging in a protected activity within the ambit of the Energy Reorganization Act, and that discrimination as defined and prohibited by the statute was a factor in his discharge from employment. Complainant here contends that the determination made below by the Area Director was correct in that he claims to have been terminated on December 30, 1983 because of his repeated complaints about alleged safety violations on the part of management and his signing a letter addressed to the Nuclear Regulatory Commission setting forth alleged management violations of certain rules and regulations pertaining to the crossing of radiation barriers. He thus argues that his discharge from employment violated the "whistle-blower" provisions set forth in the Energy Reorganization Act (42 U.S.C. 5851) and that as a result he is entitled to relief under the Act and implementing Regulations.

    Employer argues, on the other hand, that termination of complainant's employment was due solely to a required 102 layoff of its personnel and was not due in any way to complainant's activities relating to allegations about safety violations. Employer contends further that in making up the layoff list, complainant was included therein because of past problems concerning productivity, discipline, and attitude.

    After weighing the entire record before me, taking into account the demeanor of the witnesses and my observations of them during their testimony at the hearing, and for reasons below, I find for the complainant.

    1. Employer, Pullman-Higgins Company, (sometimes hereafter called "Pullman") is one of several major subcontractors at the Seabrook Station nuclear power plant project in Seabrook, New Hampshire (TR 311-312). Pullman is responsible for the installation and inspection of pipe, pipe supports and other mechanical equipment in accordance with applicable engineering codes, state and federal regulations, and its agreement with the general contractor, United Engineers & Constructors (UE&C) (TR 301, 308 The general contractor, UE&C, has primary responsibility for the day-to-day management and administration of the Seabrook project. In that capacity, UE&C maintains control over the size of the Seabrook workforce, including regulation of the number of Pullman employees (TR 3069 307). Requests to increase or decrease the size of Pullman's workforce are initiated by or require the approval of UE&C (TR 307, 310; EX 20, 23, CX 15). As part of its administration of the project, UE&C has issued work rules covering all Seabrook employees, including Pullman's craft, non-manual and managerial personnel (EX 13). Pullman is required under its agreement with UE&C to enforce the Project Rules, and issue appropriate discipline against its employees when necessary (TR 330, 331, 335).

    2. As required by regulation and in order to assure that work is performed in accordance with the appropriate standards, Pullman has maintained a 225-person Quality Assurance (QA) department (TR 301). The QA department performs a variety of

services necessary to nuclear construction, including quality assurance, quality control, and non-destructive examination of Pullman welding operations (TR 301). The QA department is managed by Mr. Richard Davis, who has over 11 years experience in the nuclear construction QA field (TR 301). Mr. Davis is assisted by W. F. Becksted and Raymond Donald, assistant QA managers, who have 12 and 17 respective years of nuclear QA experience (TR 302, 432, 461). Additional supervision in each of the QA areas is provided by lower level supervisors who report to the assistant managers on a regular basis (TR 301).

    3. No seniority lists are maintained in the QA department (TR 303). Seniority lists are generally uncommon in the construction industry because of frequent fluctuation in the size and the inherent mobility of the workforce (TR 303, 306, 397, 428). For this reason, neither Pullman nor any other Seabrook contractor maintains seniority-based recall lists for employees on layoff status (TR 305).

    4. A significant portion of QA department work involves the examination of completed welds and pipe installations. Testing is performed through various methods of non-destructive examination (NDE) which allow a weld to be studied without affecting its structural integrity. NDE processes used by Pullman include the dye penetrant, magnetic particle, ultrasonic and radiographic methods (TR 23-24). Radiographic testing, which involves use of Irridium 192 as an x-ray source, is performed exclusively during the third (night) shift to minimize the risk of non-NDE employees interferring with the testing procedure (TR 31, 319) and to reduce the risk of radiation exposure to personnel. Most of Pullman's technicians are cross-trained and certified in each of the NDE testing methods (TR 24, 3189 323, 388; EX 31; CX 2). Certification is subject to standards established by the American Society for Non-Destructive Testing (ASNT), and requires study of the various testing methods, engineering codes and federal and state regulations (TR 23-25, 266, 280; CX 2).

    5. There are three (3) classifications for NDE radiographers consisting of Level 1, Level II and Level III; Level I is the lowest classification. In order to become certified as a level II and level III technician an individual has to pass a written and practical examination for each of those levels. The NDE department is tinder the general

supervision of QA Manager Richard Davis and his assistants, Beckstead and Donald (CX 11). Direct supervision is provided by two NDE Supervisors, and technical guidance is provided by a non-supervisory Level III technician (TR 27 - 28). Turnover among NDE supervisors was high throughout Mr. Cram's employment (TR 26, 36) During the period following Mr. Cram's return from a month's disability leave on October 26, 1983, Cram was under the direct supervision of third-shift Supervisor Larry Steele and overall supervision of the first shift NDE supervisor, Ed Bowles (CX 11; EX 16 The site level III radiographer during that period was Joseph Wampler who also served as Pullman's radiation safety officer (Tr. 28; CX 11).

    6. Complainant was hired by Employer on November 8, 1982 as a level 11 technician in N.D.E. (non-destructive examination, and at the time of his hire he was certified to perform non-destructive examination in disciplines of visual inspection, dye penetrant inspection, magnetic particle inspection and radiography. Complainant became certified by Employer as a level II technician for ultrasonic testing just prior to his employment being terminated on December 30, 1983. Complainant's work for Employer consisted mainly of performing radiography and he was working on the third or night shift when he was terminated.

    7. The record clearly indicates that from the time he was hired until he was terminated Complainant was concerned about Employer following certain radiation safety regulations promulgated by the Nuclear Regulatory Commission through the State of New Hampshire and by Employer itself. Some of these concerns related to regulations pertaining to film badges, which are required to be worn by all N.D.E. technicians and which measure the amount of radiation the wearer is subjected to. Each badge is required by regulations to be assigned and worn by only one person and must be worn at all times during performance of radiographic operations (See C1 EX6). Complainant was concerned about the fact that he and others were, at various times, requested to wear badges which had been assigned to other individuals (TR 40-42, 283). He voiced complaints about this practice on several occasions to Employer's radiation safety officer and to his supervisors, especially Larry Steele, who was the third shift supervisor of

the NDE technicians (TR 42-44, 265. 478).

    8. Complainant also was concerned about lack of adequate safety training for NDE technicians (TR 48, 49). The State rules require, among other things, 40 hours of training for radiographers and instruction of both the State and Employer's safety rules Complainant stated his concern about lack of training of employees to Larry Steele, his third shift supervisor, as well as to Employer's radiation safety officer (Mr. Wampler) and the NDE technician first shift supervisor (Mr. Bowles) (see TR 49-51).

    9. Complainant's third concern pertained to his view of Regulations precluding personnel from crossing "radiation barriers". (Radiation barriers are established for safety purposes and are boundaries set in place with ropes by radiographers which surround an ares where radiography is being performed, and which, by one interpretation of the Regulations, are not to be crossed by anyone other than the radiographers who are performing the radiography). It is clear from the record that Complainant, during the term of his employment, reported several individuals who were not radiographers and who had violated the safety rules by crossing radiation barriers (see EX 3,4,5,6,7,8). Complainant, and the other third shift radiographers, were of the view that the safety regulations precluded any person, including the radiation safety officer and the third shift NDE supervisor (Larry Steele), from crossing radiation barriers without first informing the radiographer in charge. However, Mr. Steele did not agree that he was precluded from crossing radiation barriers at will, and it was his practice to do so in checking on whether radiographers were properly performing their work. The Regulations appear ambiguous in this regard, but Mr. Wampler, the radiation safety officer, agreed with Complainant's interpretation as did Diane Tefft, the manager of the New Hampshire Radiological Health Program. On the other hand, the manager of Employer's QA department disagreed with Complainant's interpretation and agreed with Mr. Steele's views that he could cross radiation barriers at will. Resolution of the question pertaining to the proper interpretation of the Regulations need not be decided here, since, in view of the differing opinions and the inherent ambiguity of the Rules and Regulations, I find that Complainant had reasonable grounds to believe that Mr. Steele's repeated crossing of the radiation boundaries violated the safety Regulations. As a result of his

belief that Mr. Steele was violating the safety Regulations, Complainant repeatedly informed Mr. Steele that he should not cross his established radiation barriers without first seeking permission to do so. He also voiced complaints about these alleged violations to Mr. Bowles the first shift NDE supervisor), Mr. Wampler (Employer's radiation safety officer), and Mr. Donald (the second shift Assistant Manager of QA).

    10. Mr. Donald started working on the second shift sometime in October 1963 and his hours of work were from about 5:00 P.M. until 1:30 A.M. (TR 461). Quite often he would converse with Mr. Steele, the third shift NDE supervisor, at the start of the third shift (10:30 P.M.) since Mr. Donald was one of Mr. Steele's supervisors (TR 464, 465). Mr. Steele informed him on occasion that he was having problems in dealing with Complainant (TR 465-466). He also informed Mr. Donald that Complainant and several of the other third shift radiographers were complaining about his crossing radiation boundaries without warning (TR 466). Mr. Donald's recollection was that the first became aware of the boundary complaints during October, 1983 (TR 466-468). Although he met daily at the start of his shift with both Mr. Davis, the QA Manager and Mr. Becksted, the day shift Assistant QA Manager (TR 483), he testified that he never informed them about the radiation-barrier complaints (TR 477) or Mr. Steele's problems with Mr. Cram.

    11. Because the third shift radiographers disapproved of Mr. Steele's crossing radiation barriers and were of the view that he was doing so in violation of the safety regulations, they spoke to Mr. Wampler, the radiation safety officer sometime around late November or early December, 1983 (TR 67) and informed him that unless the matter was satisfactorily resolved by Employer they intended to send the following letter (signed by the third shift radiographers) to the Nuclear Regulatory Commission:

To N.R.C. Representative
FROM: 3rd Shift N.D.E. Technicians
SUBJECT: Unauthorized Violations of Radiation Barriers by
    3rd Shift N.D.E. Supervisor

Dear Sirs,

We have been and are continuing to have a problem with the above mentioned subject. We have discussed the matter with our 3rd shift supervisor to no avail. When we brought up the subject to him in a meeting he had a response as follows; I AM THE SUPERVISOR. I'M ALSO A LEVEL II RADIOGRAPHER, I CAN CROSS YOUR LINES AT ANYTIME I WISH. I DO NOT HAVE TO LET THE RADIOGRAPHER IN CHARGE KNOW.

When this apparently failed we went to our radiation safety officer and told him of our problem. He agreed with us that no one is allowed in the radiation area without prior notice to the radiographer in charge. Mr. Wampler then proceeded to write a letter which would be posted on our N.D.E. NOTICES board. As of yet this has not been done.

We as a group believe that we have done all we can by talking to our fellow employees on this matter. Radiation areas are to be observed by all personnel on this site. If they are not, I cannot see any reason for posting radiation boundaries. I am hoping you will address this problem very seriously and quickly.

Enclosed you will find several incidents of Larry Steele violations. Thank you.

    12. Upon being shown the above letter, Mr. Wampler suggested to the radiographers that they hold off sending it until he had a chance to discuss the matter further with QA management in an attempt to resolve the matter "in-house", and they agreed to do so. Mr. Wampler then brought the matter to the attention of Mr. Davis, the QA manager, early in December, 1983 when he informed Mr. Davis that the third shift NDE technicians were complaining about radiation-barrier violations on the part of Mr. Steele (TR 271). Later at a meeting on December 29, 1983 he informed Mr. Davis, Mr. Becksted and Mr. Donald that the third shift radiographers were ready to file a written complaint with the Nuclear Regulatory Commission concerning Mr. Steele's barrier violations (CX 14, p.2). Although the formal complaint was never filed, Mr. Davis had previously been furnished on December 28 a xeroxed unsigned

copy which someone had left on the General Contractor's xerox copier.

    13. Shortly thereafter, 4 of the 10 third shift radiographers (40% of the night shift technicians), including Mr. Cram were notified on December 30 that they were being laid off. With regard to Mr. Cram, he was summoned to meet with Mr. Donald and Mr. Becksted at the end of his shift on Friday morning December 30, 1983 (TR 68). At the meeting with Mr. Donald and Mr. Becksted Complainant was informed that he had been chosen for layoff as a result of an ordered 10% reduction in force. Since he had the most seniority of all the 10 third shift radiographers Complainant asked the reasons for his being selected to be laid off, and he was informed that he was chosen because of his poor attitude, low productivity, excessive absences and a so-called falsification of his time card during the early part of December (These are discussed in more detail below) because he did not believe the reasons given for his discharge were valid and was of the opinion that he was being terminated because of his "whistleblowing" activities, he filed the complaint involved in this case.

    14. On October 21, 1983 Pullman and all other Seabrook subcontractors received instructions from the General Contractor, UE&C, to effectuate a 10 percent reduction in forces by November 10, 1983 (TR 310-12, EX 20). On November 4, Pullman Assistant Resident Manager Scannell circulated the UE&C memorandum (EX 20) to all Pullman department heads, including QA manager Richard Davis (TR 313-314; EX 21). In an accompanying memorandum, Scannell advised the department heads that "the intent of the mandatory force reduction is to increase efficiency" and requested them to evaluate all of their employees based on four criteria: attitude, dependability, competence and performance (TR 314, 315; EX 21). Department beads were requested to submit the names of employees" who least fit the above described attributes" to Pullman's resident manager by November 7 and 8, 1983 (EX 21).

    15. Upon receipt of these memoranda, QA manager Davis met with his staff to determine the effects of a layoff on QA operations and to begin the evaluation of the QA workforce in accordance with the Scannell memorandum (TR 315, 319, 320; EX

21). Davis testified that after reviewing the existing backlog of NDE work assignments, he became:

extremely concerned that we could not lay off NDE people at that time with the NDE backlog that was facing us . . . . We delayed the layoff of any NDE people until the backlog had been reduced. . .(TR 319-320; EX 22).

    As a result, on November 14, 1983 Pullman's resident manager, Jack Corcoran, sent a memorandum at Mr. Davis' request to UE&C regarding the backlog situation (TR 320, 321; EX 23). Corcoran stated that available NDE manpower was already insufficient to decrease the existing backlog, which consisted of approximately 558 welds (EX 23, 22). Corcoran requested that 8-10 additional technicians be hired through a contract job shop agency, National Inspection Consultants (NIC), until "permanent staff technicians are located and employed." UE&C honored Mr. Corcoran's request and reopened the NIC contract to allow for the hiring of ten or more technicians for an undetermined period of time (CX 15 EX 23).

    16. With reference to the above, Mr. Becksted on November 16, 1983 formally requested that the contract between National Inspection and Consultants, Inc. (the outside agency under contract to furnish radiographers, among others, as needed) be reopened to supply six NDE technicians starting "11/28/83; Four personnel to start 12/5/83; additional personnel (that) may be requested as needed." (CX15). As of the date of Complainant's "layoff" there were several NIC technicians on board, all of whom were being paid hourly rates and per diem higher than those Mr. Cram and other third shift technicians were receiving. Moreover, there is no indication in the record that at the time of Mr. Cram's layoff Employer had found any permanent staff technicians to replace the higher paid employees of National Inspection Consultants who had been hired as a result of reopening the contract with that firm. Thus, it appears from the record that Complainant's so-called "layoff" was in violation of the spirit and intent of the memo from Pullman to the General Contractor wherein it was indicated that personnel from National Inspection Consultants would only be used until Pullman had on board, as its own employees, sufficient technicians to perform NDE work.

    17. It is clear from the record that Employer never received further instructions to reduce its QA and/or NDE staff after it had received permission to have the NDE department excluded from, the 10% reduction-in-force ordered by the General Contractor. Moreover, the record is clear to me that the third shift radiography workload did not decrease in any substantial degree by December 30, 1983 when Complainant was terminated by Employer (Tr. 132, 268, 284, 293 492, 507, 508, 518). Finally, I note that the workload did increase thereafter. Thus, based on this finding and Finding No. 16, I conclude that Complainant's termination on December 30, 1983 was not actually motivated by the layoff ordered by the General Contractor in early November, 1983 but was motivated by other concerns of Employer's management. In this regard, it is interesting to note that although the so-called layoff requirement called for a 10% reduction in employees, the termination on December 30 of 5 employees (4 of whom were radiographers) amounted to about 17% of the total of all 3 shift NDE employees and approximately 40% the third shift radiographers (Moreover, it is also interesting to note that no evidence was presented as to any termination of other employees in the entire department due to the so-called 10% layoff ordered in November by the General Contractor).

    18. Aside from the above, I also find that the so-called "layoff" requirement was merely used as an excuse by management to fire Complainant because of his "whistleblowing" activities since other reasons given at the hearing for Complainant's inclusion in the so-called "layoff" list do not appear to me to be valid or justified by the record as discussed immediately below.

    19. With reference to Complainant's competence as a NDE technician, it is noted that he had been employed in the field of nondestructive examination for 5 years before he was hired by Employer. During the course of his employment at Seabrook, Complainant received no complaints about the quality of his work, and Employer has conceded that there never was any problem, with his quality. In fact, in June 1983, he received a letter from his Employer advising him that a review of all his completed work indicated no deficiencies. Further, Complainant was given a merit pay raise in May 1983, and at the time of his termination he was being paid $420 a week straight time and $15.75 an hour overtime plus $77.00 a week per diem. Finally,

it is noted that Employer issued Complainant a written performance evaluation on September 7, 1983 which reflected that his supervisors considered him outstanding in a job knowledge and (b) potential for promotion, and satisfactory in quality, productivity, dependability, and resourcefulness (See CX 5). With regard to productivity, management's satisfactory rating indicated that Complainant consistently turned out an adequate volume of work. Finally it is noted that the performance evaluation, signed by Mr. Davis as Department Head, contained no negative comments.

    20. Employer has contended that poor productivity was one of the reasons Mr. Davis included Complainant in the "layoff" of December 30, 1983. It is management's position that Claimant's production was below the norm. However, despite the general allegations by management witnesses during their testimony, no production or other documented records were ever produced by Employer. Furthermore, as indicated above, Complainant in September had been evaluated as turning out an adequate volume of work. Moreover, a comparison of his performance evaluation with the evaluations of other employees included in the record (EX 27) shows that only 2 of the other nonsupervisory employees evaluated were rated higher than Complainant in the productivity category. Equally illuminating is the fact that all of the Level II technicians who were called as witnesses and Mr. Wampler, a Level III technician and Employer's safety and technical advisor, who reviewed the work performed by the Level II radiographers, testified that Complainant's productivity was at least on a par with the other technicians. Finally, I note that Mr. Wampler testified that Complainant performed more of the difficult radiographs, which of course took more time to perform than the ordinary radiographs. In view of the foregoing, I find that Complainant's productivity was not below normal and was well within acceptable levels. I further conclude that Employer had no reasonable basis for concluding otherwise, and hence I give no credit to the testimony by Employer's witnesses that productivity was a factor influencing the decision to include Complainant in the "layoff" list.

    21. Employer contends further that another reason for including Complainant in the "layoff" list was that his attendance record was poor both by way of absences and tardiness in reporting to work. However, these allegations

were general statements made in testimony by Employer's supervisory personnel. Employer did not produce any records at all supporting these general statements. Records obtained by Complainant on discovery indicate that exclusive of the period between sometime in September and October 21, when he was out on a work related disability, he was absent from work for sick or personal days a total of 14 days for the year 1983. During that year he took only 9 vacation days and upon his termination was paid for 4 additional vacation days, plus three days severance pay. In the period following Complainant's return from disability leave in October of 1983, during which it is claimed that his attendance decreased, the record reflects that he was absent only one day. The record also reflects that Complainant consistently worked overtime hours throughout 1983, with a high one week of 34 overtime hours. Excluding the period when he was on disability leave, and the two-week period in April when he was on vacation, his average overtime was 9.85 hours per week. His average for the period following his return from disability leave until he was terminated was 8.2 hours a week. I do not find from the record before me that the absences from work during 1983 were of any great consequence or abnormal for any NDE employee. Nor has Employer presented any documentary evidence to prove otherwise. In fact, Employer, although requested on discovery by Complainant's counsel to produce attendance records of all night shift radiographers has steadfastly refused to do so. The only evidence offered by Employer concerning Complainant's "absences" was a note dated August 23, 1983 in a supervisor's notebook (EX 30) indicating that Complainant's "tardyness [sic] must improve". No other documentary evidence was offered concerning this aspect of Claimant's work and attitude about work. I thus conclude that the record does not show that Claimant's absences and/or tardiness were of any great consequence, and further that Employer had no reasonable grounds to believe that Complainant was delinquent in this area. I therefore do not give much credence to the testimony of Employer's witnesses indicating that excessive absences and tardiness were factors considered in including Mr. Cram in the so-called "layoff" list.

    22. Apart from one incident occurring during December 1983, which is discussed immediately below, no disciplinary actions were taken against Complainant by Employer during the entire period that he was employed at Seabrook. Concerning that one incident, claimant signed his time sheet on December

8, 1983 indicating that he would be absent from work the next day because of sickness. This was a matter of record wherein Claimant indicated in advance that he was going to take sick leave the following day. That fact was noticed by a person in charge of collecting the QA employees' time sheets and mentioned to Mr. Becksted, the Assistant manager of QA who had the responsibility of determining whether an employee should be paid for absences. That Assistant Manager had Complainant report to him on the work day following the absence, and asked him whether he had been absent from work as a result of sickness. Complainant was honest in his answer and stated that he had not been out sick but took the day off to move his family closer to work. As a result, he was informed that he would not be paid for the absence. No mention was made at that time that he would be fired or laid off because of that incident. In fact, it appears to me from the record that the Assistant Manager's only concern at that time was to make a determination whether Complainant would or would not be paid for the day's absence. In this regard, the following memorandum was prepared by the Assistant QA Manager to the Manager of the QA department:

    On Monday, December 12, 1983, I held a conversation with R. Cram, and J. Failor in the presence of their supervisor, Larry Steele. This conversation was to advise them that they would not be paid for Thursday and Friday, December 8 - 9,

    Failor advised that there was no record of his calling in sick. He stated that he did call in but did not know who he talked to. I advised him that if he could locate the individual who took his call, we would reconsider.

    Cram stated that although he was not sick as he reported, he had "personal" problems which he did not want to discuss in front of everyone. I then excused Failor and L. Steele and asked Cram to describe his personal problems. He stated that he had to move again (for the third time this year) and that he had only taken off eight days, except for 7 weeks disability, all year. He further stated that everyone including supervisors always take time off with nothing being said about it and lie did not know why he was being singled out.

    I advised him that whenever an individual does something to draw attention to the fact he is taking time off for other

than a factual reason (he completed his time sheet with a sick day, the day before he was to be sick) something would be done about it. I further advised him that "everyone" does not take time off all the time, and pointed out that I had taken no sick days, and a minimum of personal time during the entire year.

    I again asked him if he had taken off the time, reporting it as a sick day when in fact he was not sick. He answered affirmatively.

    23. The above memorandum contains no indication that formal disciplinary action against Complainant was contemplated but merely indicates that it was written as a justification for not paying Complainant for his day's absence from work. However, at the hearing Mr. Becksted and Mr. Davis testified that in addition to the memo Becksted orally told Mr. Davis (on the same day that the memo was prepared) that he thought Complainant should be fired because of the incident. Mr. Davis testified that he told Mr. Becksted that he would not fire Complainant at that time, instead, he would include him in the layoff group to be terminated later in the month. I find that scenario difficult to believe. In the first place it would appear to me that if Mr. Becksted felt Complainant should have been fired, he would have included that recommendation in the written memo to Mr. Davis. Moreover, if the time-card offense was, in fact, considered as grave an offense as was testified to, it is difficult for me to believe that a responsible supervisor, such as Mr. Davis, would not immediately fire the offending employee. The evidence, in fact, shows that Mr. Davis did not consider the offense at the time it was reported as being very important or as grounds for discharging Complainant from the workforce. In this connection on cross-examination (TR 419-421) he testified that the incident was very minor going on in my day (because of other pressing work problems). To be honest with you, I wouldn't have drawn . . . . I doubt I drew any conclusions from this letter (Becksted's memo on the day it was presented to me." (TR 420). Yet, earlier in his testimony, he stated that Mr. Becksted told him that he felt that Complainant should be terminated because of falsification of his timecard Mr. Becksted's testimony indicates also that he told Mr. Davis the same day he gave him the memo that Complainant should be fired). Thus, at the very least, I find that the recollections of both Mr. Davis and Mr. Bechsted are faulty and unreliable.

Furthermore, in absence of documentary evidence showing that Mr. Davis or Mr. Becksted considered the time-card incident grounds for firing Mr. Cram, I give no credence to their testimony that this incident was considered cause for discharging Mr. Cram on December 30, 1983.

    It is clear from the record that Complainant during the 14 months he worked for Employer repeatedly complained to his supervisors about alleged safety violations, and that he was a thorn in the side of management because of his repeated complaints. It is also clear from the record that Mr. Steele, his immediate supervisor, knew about his complaints and thus found him difficult to handle as an employee. With regard to the film badge issue discussed above, it is noted that Mr. Cram refused to wear any other person's badge when told to do so, and thus at those times, he was assigned work other than radiography until his own badge was returned (TR 40-44). No evidence was presented that Mr. Cram was ever threatened that he would be fired for his failure to wear another employee's badge, and thus the inference I draw is that Employer must have been of the view that Mr. Cram's complaints had some merit. There is clear evidence in the record that both Mr. Donald and Mr. Steele knew about Mr. Cram's repeated complaints concerning Mr. Steele's crossing radiation boundaries. However, Mr. Davis and Mr. Donald testified that these alleged safety violations were never made known to them. I find that difficult to believe, especially in view of the testimony of Mr. Davis which inferred that his management team would keep him informed about important matters (See TR 342-343). Moreover, Mr. Steele, who is still employed by Employer's parent company, (Pullman Power Products Inc.) was not produced as a witness by Employer, and thus an adverse inference way be drawn that his testimony would have been unfavorable to Employer's contentions that Mr. Cram was not terminated because of his complaints about safety violations. See, Interstate Circuit, Inc. v. United States, 306 U.S. 206, at 226 (1939); N.L.R.B. v. Cornell Calif., Inc., 577 F.2d 513, at 517 (9th Cir. 1978); Perkins v. State of Mississippi, 455 F. 2d 7, at 51 (5th Cir. 1972); International Union (UAW) v. N.L.R.B.; Colonial Stores Incorporated v. F.T.C., 450 F. 2d 733, at 741, n.17 (5th Cir. 1956); Illinois Central Railroad Co. v. Staples, 272 F.2d 829, at 833-835 (8th Cir. 1959). Moreover, his testimony would have at least shed

some light concerning the substance of his conversations with both Mr. Donald and Mr. Davis about the problems he had in dealing with Mr. Cram.

    Evidence in the record shows that Mr. Cram complained repeatedly to Mr. Wampler and Mr. Steele about Mr. Steele's practice of crossing "radiation barriers" established by the radiographers (TR 54-67). Mr. Cram's understanding that this practice by Larry Steele was in violation of Regulations was confirmed at the time of the complaints by Mr. Wampler, the radiation safety officer, and later by Diane Tefft, manager of the New Hampshire Radiological Health Program, (TR 86,97-103, 249 and Cx 13). While a number of third shift technicians complained about the barrier crossings, Mr. Steele appears to have had the most difficulty with Mr. Cram. In fact, he made it a point to inform Mr. Donald, his supervisor, about the discipline difficulties he was having with Mr. Cram. Thus, the evidence supports an inference that Mr. Cram was one of the most vocal complainers and therefore, the most annoying to Mr. Steele.

    According to Employer, Richard Cram was terminated, or "laid off" as part of a reduction in force, because he was one of the five worse technicians in the entire N.D.E. Department. There is no question that a reduction in force of ten percent was ordered in October, 1983. (E. Ex.20). However, Pullman-Higgins requested and obtained an exemption from this requirement based on what it described as a backlog of MT/PT (magnetic particle, dye penetrant) examinations. This exemption was requested on November 14, 1983, at which time Pullman-Higgins also requested permission to reopen a contract with National Inspection and Consultants to supply 8-10 more technicians. The memorandum requested that this contract be reopened and that "as additional permanent staff technicians are located and empoloyed, we would reduce the N.I.C. work force accordingly." (E.Ex. 23). The evidence showed that at no time were there any follow-up memoranda from Employer advising the General Contractor that the backlog had been reduced and/or that the N.I.C. contract could be terminated. (Cl.Ex. 15, Tr. 378-79). In fact after Employer received permission to hire technicians through N.I.C. (who were paid more than regular employees, but who did not cost Pullman-Higgins any more due to its contractual arrangement with the general contractor), they continued to hire them, up

to and following Mr. Cram's termination.

    The memo dated November 16, 1983, (Cx 15) approving the reopening of the N.I.C. contract, indicated that at least ten new technicians would be hired as of December 5, 1983 and that completion of work was undetermined at that time. As indicated by Claimant's Exhibits 10 and 11, a substantial number of new technicians were hired through N.I.C. and continued to be hired up and until February of 1984 following Mr. Cram's termination. Claimant's Exhibit 11 indicates that as of December 20, 1983, there were nine level II technicians on the third shift. As of January 3, 1984, following Mr. Cram's termination, there were only six, but there were also nine N.I.C. technicians available to work on that shift.

    It was the company's position that the so-called reduction in force of December 30, 1983 was made possible because the backlog referred to in earlier memos had been eliminated. However, this backlog was in the MT/PT area, and the evidence was that this work was primarily performed by the first shift. The number of technicians on the first shift between December 20, 1983 and January 3, 1984 remain unchanged. By January 9, 1984 the number of technicians on the first and second shifts appeared to have increased, with the N.I.C. technicians being placed on those shifts. The number of level II technicians assigned to the third shift remained at six, but as of February 1, 1984, only one month following Mr. Cram's termination, the number of level II technicians assigned to the third shift had increased to ten, similar to the number employed prior to Mr. Cram's termination. This continued to be true as of the last date for which figures have been provided by Employer. Mr. Davis testified that the N.I.C. personnel were hired on a temporary basis to reduce the backlog and that they are desirable because you can hire the people to come in, take care of that backlog and leave with no repercussion." (TR 383). However, the evidence does not show that any of the N.I.C. personnel were ever terminated.

    In addition to the claimed MT/PT backlog, the company provided figures which it claimed showed that the radiography backlog had been reduced. As Mr. Wampler testified (TR 507-521 these figures were not accurate reflections of the amount of radiography to be done. However, even if the accuracy of the figures is conceded, they indicate that the

backlog was down to very low numbers as early as November 21, around the time the company was getting the permission to increase its workforce. These numbers continued to be low only through December 29, the day before Mr. Cram was terminated, when they went from zero to six. On January 4, 1984, four days after his termination, the backlog was back up to fifteen, then twenty, then thirty, the highest it had ever been. A number of third shift radiographers testified that in their opinion the amount of work remained at least stable between November and December of 1983, and that they were always working overtime. (TR 69, 132, 133, 143, 267, 268, 284, 285, 293, 498).

    In view of the NDE manloading of personnel (inclusive of N.I.C. furnished technicians) during the period between November, 1983 and February 20, 1984, I am unable to conclude that an actual manloading reduction in force ever occurred in the NDE department. Thus, I draw an inference that Employer merely used the so-called reduction in force requirement as a convenient excuse to terminate Mr. Cram on December 30, 1983 because he had become an annoyance to Employer due to his repeated complaints about alleged safety violations.

    Employer's management witnesses indicated that Mr. Cram was terminated because of his "poor attitude". What was meant by "poor attitude" has not been adequately explained in the record. An inference can be drawn that management's view of Mr. Cram's "poor attitude" related primarily to his repeated complaints of safety violations. It is certainly reasonable for me to infer that Mr. Steele perceived these repeated complaints as threats to his authority, especially in view of the fact that Mr. Cram was the technician having most seniority. Therefore, in discharging Mr. Cram, Employer not only eliminated the threat that he posed but also set an example for the remainder of the radiographers indicating that complaining about safety violations might cause their dismissal as employees.

    Employer has argued that at least half of the technicians who signed the letter of complaint addressed to the Nuclear Regulatory Commission were not terminated on December 30, 1983. However, management employees testified that they did not know who had signed the letter. All they knew is that it came from third shift technicians; and the only technician Mr. Donald testified that Larry Steele had specifically complained

of was Richard Cram. Even if management suspected that all the technicians had signed the complaint, they could not, as a practical matter, lay off the entire shift, as Mr. Donald conceded in his testimony. (TR 479). It appears that the company chose to terminate Mr. Cram whom the evidence showed was very vocal and persistent in safety complaints and who it believed had signed the letter to the Nuclear Regulatory Commission.

    In summary, there is no dispute that Richard Cram complained about safety violations, specifically barrier violations, inadequate safety training, and misuse of film badges, on several occasions, to his supervisor Larry Steele. There is also no dispute that Larry Steele recommended that he be included in the lay-off, and that Cram's complaints bothered him to the extent that he had raised them on previous occasions with at least Mr. Donald. With respect to the Company's position, there is also no dispute that it was ordered to implement a reduction in force. The evidence was, however, that this reduction was not implemented at the time it was requested since an exemption was granted to the QA department. The evidence does not indicate to me that the "layoff" of Mr. Cram on December 30, 1983 was made pursuant to an ordered reduction in force since none of the N.I.C. employees had been discharged prior to the "layoff," and the reduction did not reduce the NDE workforce below what it was on October 21, 1983 ( the date of the reduction-in-force letter from the General Contractor). There is also no dispute that Richard Cram was docked a day's pay for reporting a sick day when he was not in fact sick in early December. However, it simply strains credibility to believe that that one incident in the face of over a year's employment record without any disciplinary notices and with good work performance could in good faith be the basis for a termination decision, absent some additional considerations. Those additional considerations were present in this case, in that Mr. Cram was known by at least Mr. Donald and Mr. Steele to be a chronic complainer about alleged safety violations, and one who had challenged these practices, made his fellow employees aware of his challenges, and who continued to pursue his complaints with the radiation safety officer on site. The Company very well may have ultimately been correct in its own interpretation of the Regulations, but through the date of Complainant's termination he was never given any valid reason for believing that his own interpretation was incorrect.

    In view of my findings, my review of the entire record, the demeanor of the witnessses and my observations of the witnesses at the hearing, and the inferences I draw from the evidence, I find that Mr. Cram was included in the so-called "layoff" of December 30, 1983 solely because of his past complaints concerning alleged safety violations, especially those related to Mr. Steele's crossing radiation boundaries. I find also that the catalyst provoking management to terminate Mr. Cram was their discovery on December 28, 1983 of the unsigned letter addressed to the Nuclear Regulatory Commission. Finally, I find that Mr. Cram's repeated complaints of alleged safety violations and his participation in the drafting of the letter to the Nuclear Regulatory Commission were protected activities within the meaning of the "whistleblower provisions" of Energy Reorganization Act.

    Remaining for consideration is the precise relief Complainant is entitled to. In this connection, I note that the Regulations in 29 C.F.R. 24.6(b)(2) and (3) provide that an Employer should be ordered to take affirmative action to abate the violation including reinstatement of Complainant to his former job, together with the compensation (including back pay), terms, conditions and privileges of that employment. In addition, the Regulations provide that Complainant may be entitled to compensatory damages, attorney fees and costs.

    In following the mandate of those regulations, I find first that Complainant should be reinstated forthwith to his former position as an NDE Level II technician with all employee benefits restored, and further that he should be given back pay from December 31, 1983 until so reinstated at the hourly rate he was earning plus the weekly per diem allowance he was paid at the time of his termination on December 30, 1983. While claimant contends that he is entitled to overtime pay based on his average overtime hours before he was discharged, I find that item of damages to be too speculative and I disallow it since there is no certainty in the record before me as to the amount of overtime hours, if any, he would have worked after December 30, 1983. Employer is to receive credit for $9,355.16, the amount Complainant was paid as a result of other employment after December 30, 1983. Complainant is also to be paid $4,217 for expenses incurred in connection with (a) other employment (such as travel, room and board) and (b) job search. Complainant requests that he be paid an amount of $100

per month for the insurance coverage he lost while not working for Employer during the period after December 30, 1983. However, there is no evidence indicating that he ever paid for any insurance coverage after December 30, 1983, and I thus disallow that claimed item of damages.

    In addition, Complainant is entitled to be compensated for attorney fees and litigation expenses. His counsel has stated that the fee and costs through the present amounts to $6,700, but she has not supplied any breakdown as to hours expended, hourly rate, and costs. Thus, I have to determine the reasonable amount of time that should have been expended, a reasonable hourly rate, and an estimate of litigation costs. I find, after taking into account the quality of legal services rendered, the result obtained, the expertise of the firm representing claimant, the geographic area in which, that law firm is located, and the complex legal and factual issues involved, that an hourly rate of $100 is fair and reasonable. Further, considering the nature of the complex issues involved, preparation for trial including discovery proceedings, the length of the hearing, review of transcript and preparation of the brief, I conclude that 60 hours of legal services were necessary to successfully prosecute the case. In addition I allot the sum of $500 for all litigation expenses, including cost of transcripts, witness fees, and travel. I therefore find Employer liable for $6000 in legal fees plus $500 in costs or a total of $6,1500 for legal services and litigation costs expended through the date of this recommended Decision and Order.

    Based on the foregoing, it is hereby recommended that Employer be ORDERED to:

    1. Reinstate Complainant to his former job forthwith with restoration of all employee benefits.

    2. Pay Complainant back pay from December 31, 1983 through the date of his reinstatement as an employee at his past hourly, rate for a 40-hour work--week and the weekly per diem he was receiving at the time of his termination on December 30, 1983. Employer is to receive credit for $9,355.16, the amount Complainant received in other employment

after December 30, 1983.

    3. Pay Complainant an additional sum of $4,217 for expenses incurred in connection with other employment and job searches.

    4. Interest shall be paid on the total sum due, exclusive of attorney fees, at the rate specified in 28 U.S.C. 1961 commencing from date of this recommended decision until the date paid.

    5. Employer shall pay directly to Attorney Leslie C. Nixon, the sum of $6,500 for legal services rendered and litigation costs incurred through the date of this recommended Decision and order.

       CHESTER SHATZ
       Administrative Law Judge

Dated: JULY 24 1984
Boston, Massachusetts

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