U.S. Department of Labor
Office of Administrative Law Judges
1111 20th Street, N.W.
Washington, D.C. 20036
Case No. 84-ERA-31
In the Matter of:
WILLIAM O'BRIEN
Complainant
v.
STONE & WEBSTER ENGINEERING CORP.
Respondent
P. Michael Shanely, Esq.
For Complainant
Walter E. Graham, Esq.
For Respondent
Before: STUART A. LEVIN
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This proceeding arises under the Energy Reorganization Act
of 1974, as amended 42 U.S.C. § 5851, (hereinafter referred to as
[Page 2]
the ERA or Act) and the regulations promulgated and published at
29 CFR Part 24 to implement the Act. On June 8, 1984, William
O'Brien filed a complaint with the Department of Labor alleging
that he was harassed, intimidated, and subjected to discrimination
by Stone & Webster at the Nine Mile Point Nuclear Power
Plant, Unit II construction site at Oswego, New York. Mr.
O'Brien was discharged several days after he filed the
complaint.1
1 At the hearing, O'Brien alleged that
his dismissal was part
and parcel of the discrimination timely alleged in the
complaint. This allegation was treated as an amendment to his
complaint, and the issue of his dismissal was full and fairly
litigated by both parties to this proceeding.
2 The parties in this proceeding
have agreed to waive the
requirement in 42 U.S.C. § 5851 (b)(2)(A) and 29 CFR § 24.6(b)(1)
that the initial decision be issued in 20 days and that the
Secretary of Labor issue a final order within 90 days after
receipt of a complaint. Tr.5.
3 The status of Stone &
Webster's investigation of the alleged
falsification of an installation test report by L.K. Comstock
personnel is not clear on this record. Tr. 209-210.
4 Respondent's exhibit submitted
post hearing consisting of the
E&DCR FO 1424, is admitted into evidence as Rx7.
5 It must be emphasized here that
the meeting on May 3, 1984,
is relevant only to the extent that it reveals a pattern of
conduct by Stone & Webster responsive to O'Brien's complaints.
Mackowiak, supra. To the extent O'Brien's complaint charging
intimidation as a consequence of the May 3, meeting alleges a
violation of the Act, however, it is barred by the 30 day time
limit for the filing of a complaint. Since his complaint was
mailed on June 8, 1984, nothing occurring on or before May 8,
can be sustained in this proceeding as a separate violation of
the ERA. 29 CFR § 24.3(b).
6 Although Beverage denies that
he issued a reprimand on this
occasion, I find more credible O'Brien's account that a
reprimand did issue although whether it was in writing or
conveyed orally is unclear. O'Brien's contemporaneous comment
to Donald Hall, a supervisor, that Beverage had "chewed him out,"
is persuasive in this regard, and the only other witness to the
incident, Gignon, could not recall whether or not O'Brien was
reprimanded.
7 The Sixth Circuit, in contrast,
has suggested that a
discharge motivated, in part, by an employee's protected activity
may be in violation of the Act. See, DeFord v. Secretary of
Labor, supra, at 287.
8 The suggestion that LaPoint's
testimony was not related to QA
Category I terminations is not persuasive. His responses were
provided in the context of explaining the inspection procedure
on QA Category I cable, Tr.237-38, and emphasized E061A Section
I procedures including mandatory hold points applicable to such
terminations. Tr. 239-40.
9 Gignon, Tr. 376-77. It should
be noted here that LaPoint
participated in the Hall Survey, Gignon did not. The
inconsistencies between the Hall Survey results and the
testimony received at the hearing, tends to emphasize the
confusion which prevailed regarding the meaning of the 100%
witnessing rule. Compare eg. Tr. 239-40, 244 with Tr. 361.
11 Viewing this incident
strictly as a personnel, rather than a
safety matter, it must be noted that O'Brien "checked out" when he
left the site on May 31, making no effort to cover-up his
absence, that other inspectors had left job sites after checking out
with the craftsmen, and that O'Brien freely acknowledged his
misunderstanding of the 100% witnessing requirement.
12 The absence of disparate
treatment does not necessarily
establish the absence of discrimination. See, DeFord, supra, at
286. Conversely, however, the presence of disparate treatment
may be an important manifestation of the discriminatory
conduct.
14 The ERA protections were
not enacted to shield only those
participants in NRC proceedings who have never committed
errors on the job. The "dual motive" inquiry, mandated by the
Secretary of Labor and the courts, allows for the protection of
the imperfect employee by requiring a determination that the
non-protected activity, alone, would justify the adverse action.
Consequently, those who cooperate with the NRC need not be
flawless, and they may not be subjected to discrimination
or treated more harshly for their mistakes than similarly
situated employees who exhibit the same or substantially similar
shortcomings.