U.S. Department of Labor
Office of Administrative Law Judges
211 Main Street
San Francisco, California 94105
Suite 600
(415) 974-0514
FTS 8 454-0514
CASE NO. 85-ERA-00002
In the Matter of
VERA M. ENGLISH
v.
GENERAL ELECTRIC COMPANY
Mozart G. Ratner, Esq.
1900 M Street, N.W.
Suite 610
Washington, D.C. 20036
Arthur M. Schiller, Esq.
1000 Connecticut Ave., N.W.
Suite 1205
Washington, D.C. 20036
For the Complainant
William W. Sturges, Esq.
Weinstein, Sturges, Odom, Groves,
Bigger, Jonas & Campbell, P.A.
810 Baxter Street
Charlotte, N.C. 28202
[Page 2]
Scott A. Klion, Esq.
General Electric Company
175 Curtner Ave. M/C 822
San Jose, CA 95125
For the Respondent
Before: ROBERT J. BRISSENDEN
Administrative Law Judge
DECISION AND ORDER
This is a proceeding under the Energy and Reorganization Act
of 1974, as amended, (hereinafter referred to as the "Act" ),
42 U.S.C. § 5851, and its implementing regulations, 29 C.F.R. Part
24.
The Complainant Vera English filed a complaint with the United
States Department of Labor, under 29 C.F.R. § 24.3, on August 24,
1984, and an amended complaint on August 27, 1984. Her Complaint
alleged discrimination as a result of the initiation of and the
participation in Nuclear Regulatory Commission (hereinafter NRC)
investigations of facilities at the Respondent General Electric
Company (hereinafter GE) plant located in Wilmington, North
Carolina. On October 2. 1984, following an investigation, the
Administrator of the Wage and Hour Division, Employment Standards
Administration, Department of Labor, concluded that English had
been discriminated against as defined and prohibited by the Act and
29 C.F.R. § 24.4. The decision of the said Administrator was
appealed by both Complainant and the Respondent.
1 Shortly after the first session of the
hearing, the parties had
waived the time constraints of 29 C.F.R. § 24.6, because of the
necessity of having the hearings continued into a second session.
Additionally, in order to allow time for the submission of
posthearing briefs, the parties have agreed to waived the requirements
of 29 C.F.R. § 24.6(a) and 24.6(b).
2 Many of the allegations and
contentions of both parties were
too far removed in time to have any significant relevance to this
case. Accordingly, although Mrs. English worked in the Chemet Lab
for twelve years, other than for taking cognizance of Complainant
being an experienced laboratory worker, under the provisions of 29
C.F.R. § 24.5(e)(1), the time frame was limited by this judge to
1982 to 1984.
3 The Chemet Lab is a part of a
large building within the GE
facility in Wilmington, North Carolina. There are various
laboratories within the Chemet Lab.
The plant is involved in the production of fuel bundles of
uranium material, and said "bundles" are intended for use at
reactor sites for the production of electric power. Additionally,
uranium powder is produced, primarily for sale to overseas
customers. The Chemet Lab had areas calling for certain precautions,
i.e., controlled areas, Persons leaving a controlled area must
use a monitor or frisker, which is a hand held unit used to check
for radiation contamination on any part of the body, including
hands, feet, face and clothing. Another precaution taken, within
the lab, are hoods with fans to pull off airborne contamination
away from an individual who is working under that hood. Within the
controlled or "semi-controlled" areas the lab workers must wear
gloves, a lab coat and safety glasses. These workers work both
with powder and liquid solutions of uranium. There are marble
tables with marble legs for use by the lab workers. The marble
material is not affected by vibrations and is easier to clean than
other material. Safety rules require that any spillage of uranium
powder or uranium liquid be brushed or cleaned off from time to
time during the work hours, and especially before leaving the work
shift.
4 There was a dispute by
management as to the use of red tape to
designate a "hot" area. Some of the documents that Claimant relied
on were ambiguous and confusing with reference to the use of red
tape. Management claimed that red tape was to designate areas of
storage of uranium products rather than to designate areas where
spills had occurred.
5 The severity level of violations
for an NRC licensee, such as
the GE Company, are graded from one to five. The larger the
number, the less severe the violation. Severity levels I and II
involve very significant violations; level III violations are
significant; level IV violations are significant if left uncorrected;
and level V violations are of minor concern.
Following the above discussed allegations, which were reported
to and investigated by both GE and the NRC, Mrs. English filed
additional allegations with the NRC in May and June of 1984. The
latter complaints were not reported to GE, though GE learned of
them through NRC investigations. A number of the May and June
allegations were merely reiterations of the previously filed
complaints. Of the 35 allegations investigated, five were found to be
Severity level IV violations; one (failure of personnel to use
personal survey devices) was determined to be a corrected prior
violation; seven were partially or wholly substantiated, but were
not deemed violations of NRC regulations or license requirements;
one was unresolved; and two were not addressed. Three level IV
violations and one level V violation were found to exist on the
basis of independent NRC determinations. (See ALJ Exhibits 5-12,
incl.; Employer's Exh. 11)
6 Even taking into account the
level V vs. level IV NRC designations,
a five day suspension appears to have been the heaviest
punishment dealt to anyone.
7 Said Ruling and Order is
incorporated herein by reference.
8 In determining whether
Claimant's conduct afforded an
independent, nondiscriminatory basis for discharge, or whether it was
protected activity, the court must determine whether Claimant's
overall conduct was so generally inimical to Employer's interests and
so excessive as to be beyond the protection of the statue. The
court must balance the setting in which the activity arises and the
interests and motivations of both Employer and Employee.
Hockstadt, ibid. at pages 229, 230 and 232.