Case No. 84-ERA-24

In the Matter

ROBERT SERAIVA,
   Complainant

    v.

BECHTEL POWER CORPORATION,
   Defendant-Respondent

JACOB KRESHTOOL, ESQ.
    1102 West Street, Suite 702
    Wilmington, Delaware 19801
       For the Complainant

DENISE M. ROCHA, ESQ.
    Bechtel Power Corporation
    Legal Department
    Post Office Box 3965
    San Francisco, California 94105
       For the Defendant-Respondent

Before: ROBERT J. FELDMAN
    Administrative Law Judge

    This is a proceeding to impose remedial and compensatory sanctions under the Employee Protection provisions of the Energy Reorganization Act (42 U.S.C. § 5851).

    Under date of March 12, 1984, Complainant filed a statement with the Department of Labor claiming that Respondent had terminated his employment at a nuclear power plant because he had indicated an intention to "blow the whistle" and complain to the Nuclear Regulatory Commission (NRC) concerning unsafe and improper procedures at the site. On April 12, 1984 the Area Director of the Employment Standards Administration, Wage and Hour Division, notified Complainant that after investigation it was concluded that his allegations were unproveable for the following reasons:

1. There are no witnesses to your specific statement of intent to go to the NRC and therefore no indication that such intention was instrumental in the firm's decision to terminate you.

2. When informed of your intention to go to a higher authority, you were not discouraged from so doing by the firm.

3. The difference in degree of discipline between your violation of the tagging procedure and earlier violations of the same, is attributable to the near fatal effects resulting from the violation.

    Complainant was first employed by Respondent in November, 1979, at the site of the Hope Creek Nuclear Power Plant located in Hope Creek, New Jersey, the facility being owned and/or operated by Public Service Electric and Gas Co. (PSE&G) for which Respondent was the general contractor. Over the succeeding four years, his performance on the job was reasonably satisfactory and he received letters of commendation which, although not of unusual distinction, indicated that he was not in disfavor with management. In his job as assistant superintendent for boilermakers, however, his performance reports included less than satisfactory achievement in such intangible and judgmental categories as sense of responsibility and leadership, as a result of which his overall comparative rating was in a very low percentile of the supervisory workforce.

    In February, 1984, there was in effect on the site a safety tagging procedure, the purpose of which was to assure that any equipment on which work was to be done was de-energized, in order to prevent accidents occurring through the operation of machinery, moving parts, or surges of power. Details of such procedure were contained in the Standard Work Plan manual (SWP/P-22, Rev. 4). Briefly, it was provided that when a given job was to be performed, the employee designated as "the Requestor" had the responsibility of placing warning tags at the appropriate energizing point or power source or control panel, and then removing the stubs from the tags and delivering the stubs to the superintendent of the work force to indicate that work could begin.

    On Monday, February 13, 1984, at the beginning of the first shift, Complainant received from a field engineer, Joseph Lisowski, two tag stubs (a red one for Respondent and a corresponding blue one for PSE&G), purportedly authorizing work on a fan and its housing in the auxiliary boiler room. Complainant passed the stubs on to the boilermaker general foreman, Edward Skrabonja, who thereupon assigned a journeyman boilermaker, Olin Storch, and an apprentice, James Nines, to do the job, which required the drilling of two holes, one in the housing and one in the fan itself. After the hole in the housing had been drilled, and before any work was commenced on the hole to be drilled in the fan, the four-foot fan was suddenly energized and started to rotate at high speed. Mr. Nines, who was standing close to the fan, was frightened, but neither he nor anyone else was

injured. It was then discovered that no warning tag had been placed at the control panel from which the fan was operated, and an employee who had no knowledge of the work being done routinely energized the fan. It is a fair inference that had anyone been actually working on the fan itself, he could have been seriously, perhaps even fatally, injured.

    Later that morning, complainant was taken by his immediate superior, Joel Kirkpatrick, to the office of the chief superintendent, Dennis Webster. There, in the presence of Kirkpatrick, Lisowski, and two safety engineers, Webster asked Complainant what had happened with respect to the tagging procedure. Complainant responded that hen he received the stubs from Lisowski, that signified that the tags had already been properly placed. Although Webster indicated that Complainant should have checked it out by visual inspection, Complainant insisted that he had no responsibility under the SWP for making sure that the tags had been put where they should have been.

    That afternoon Webster called a meeting of all superintendents and assistant superintendents on the first and second shifts (about 100 persons) and informed all of them of the incident that had occurred that morning. He told them that under the safety tagging procedure then in effect, he held the superintendent or assistant superintendent who received the stubs to be personally responsible for seeing to it that the tags had been properly placed. Mr. Webster then asked several of the people present whether they had a contrary understanding of the procedure and received no response that indicated a different interpretation. Subsequently, Complainant mentioned to members of his carpool that if the SWP was not further revised to delineate more clearly the responsibility for tagging, somebody would have to report the condition to the NRC.

    Meanwhile, Webster had reported the incident by telephone to Dan Long, Respondent's No. 2 man on the entire project, who suggested that action be taken consistent with prior violations. On the following day Webster and Long tentatively decided that Complainant should be given a 5-day suspension without pay, which was the disciplinary measure that had been imposed some five or six months earlier for a violation of the tagging procedure comprising the opening of a butterfly

valve resulting in the unauthorized release of a large quantity of water. The proposed action was submitted to Claude Turnbow, Respondent's general manager of the Hope Creek project, who was then in the main office in San Francisco. The latter advised that he would take it up with Respondent's principal management officials at the head office.

    Early in the morning on Wednesday, February 15, 1984, Complainant happened to meet Webster on a staircase. Webster then told him that he was to get five days off without pay beginning the following day (Thursday, February 16). Although Webster denies hearing any reference whatsoever to the NRC, it is found that Complainant then told Webster that when he received official notice of his suspension, he intended to inform the NRC resident inspector on the project of the problem inherent in the tagging procedure. There is no evidence that with the exception of Webster, any of the managers who participated in the adverse decision had any knowledge of Complainant's stated intention to complain to the NRC.

    Later that morning, Webster received word from Turnbow that it was decided that in view of the gravity of the possible results of the failure to comply, Complainant should be immediately discharged for violation of the safety tagging procedure. At or about 1:00 p.m. of that day, Complainant was called to Webster's office and was discharged for his alleged violation of the rule. Approximately two hours later, Lisowski, the field engineer, was discharged for the same reason. Complainant did not in fact make any complaint to the NRC. Subsequently, the SWP pertaining to the safety tagging procedure was further revised to clarify responsibility for its implementation.

    Prior to his discharge on February 15, 1984, Complainant had been employed at a salary of $43,000.00 per year. He has been unemployed since that time and has attempted to get a job by sending out some resumes, but up until the time of hearing, he had not succeeded in obtaining an interview. He has a wife and several children to support.

    The Employee Protection provisions of the Energy Reorganization Act embody the following prohibition [42 U.S.C. § 5851(a)]:

§ 5851. EMPLOYEE PROTECTION

    (a) Discrimination against employee

    No employer, including a Commission licensee, an applicant for a Commission license, or a contractor or a subcontractor 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, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter or the Atomic Energy Act of 1954, as amended [42 U.S.C.A. § 2011 et seq.], 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 to testify in such proceeding or;

    (3) assisted or participated or is about to 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 chapter or the Atomic Energy Act of 1954, as amended [42 U.S.C.A. § 2011 et seq.].

    The issue to be determined is therefore whether, within the meaning of the above provision, Complainant was discharged because he threatened to complain to the NRC or assisted or participated in any other action to carry out the purposes of the Act.

    Preliminarily, it should be noted that the case has been

heard and considered ab initio and the determination of the issues presented is in no way circumscribed by the stated reasons for the Area Director's conclusion that Complainant's allegations are unproveable. All of the evidence must be examined to determine whether the essential elements of a case of employer retaliation have been established: 1. whether Complainant establishes a prima facie case of retaliation by showing (a) that he engaged in an activity protected by Section 5851, (b) that an adverse employment action occurred, and (c) that the participation in the protected activity was a motivating factor in the adverse employment decision; 2. whether the Employer shows a legitimate non-discriminatory reason for the adverse action; and 3. whether the Complainant shows that the reason given by the Employer was a pretext for retaliation. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); McMillan v. Rust College, Inc., 710 F.2d 1112 (5th Cir. 1983).

    Having found as a fact that Complainant had told Webster prior to his discharge that he intended to make a complaint to the NRC regarding the safety tagging procedure, such a threat or statement of intention is sufficient evidence under Section 5851 that the employee is about to commence or cause to be commenced a proceeding under the Energy Reorganization Act or is about to assist or participate in such a proceeding or in any other action to carry out the purposes of that Act, and hence is a protected activity. Complainant's discharge is of course an adverse employment action. A reasonable inference of retaliatory motive may be drawn not only from the sequence of events, but from the sudden change from a proposed suspension before disclosure of Complainant's intention, to an immediate discharge thereafter. Consequently, I conclude that Complainant made out a prima facie case.

    Respondent then came forward with a legitimate, non-discriminatory reason for the adverse action, to wit, a violation of the safety tagging procedure, creating a heavy risk of serious injury. Whether Complainant's acts or omissions constituted a failure to comply with the ambiguous provisions of the SWP then in effect is really immaterial. The evidence is clear that Webster and his superiors believed that it was Complainant's responsibility to check out the placement of the tags and that his failure to do so nearly resulted in a serious accident. Even if Respondent's officials were wrong in that belief, their action was not discriminatory

if they acted on that belief. See Jefferies v. Harris County Community Action Association, 615 F.2d 1025, 1036 (5th Cir. 1980). We are not concerned here with whether or not the discharge was warranted by the alleged violation without previous warning. As was said in Turner v. Texas Instruments, 555 F.2d 1251 (5th Cir. 1977), at 1257: "Title VII and section 1981 [Equal Rights Under the Law, including freedom from employer retaliation] do not protect against unfair business decisions - only against decisions motivated by unlawful animus."

    Upon the facts of this case, it makes little or no difference whether we apply the affirmative defense rule shifting the burden of persuasion to the employer, as in Consolidated Edison Co. of New York v. Donovan, 673 F.2d 61 (2d Cir. 1982); or the burden of going forward rule as in N.L.R.B. v. Wright Line, 662 F.2d 899, 904 (1st Cir. 1981). The evidence shows clearly that on the same day it discharged Complainant, Respondent also discharged Lisowski, the field engineer who had delivered the stubs to Complainant, for the same reason, even though he had not declared any intention of going to the NRC or other authority. I therefore conclude that Respondent has sustained the burden of proving that it would have discharged Complainant even in the absence of the protected activity. Since the earlier violation which had resulted in a suspension of a superintendent did not involve a comparable risk of serious injury, disparate treatment cannot be reasonably inferred. I thus conclude Complainant has failed to establish that the stated reason for discharged was pretextual.

    In view of the foregoing, I am constrained to recommend that the proceeding be dismissed on the merits.

       ROBERT J. FELDMAN
       Administrative Law Judge

Dated: July 5, 1984
Washington, D.C.

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