Case No. 85-ERA-7

In the Matter of

JEFFREY JOHNSON
    Claimant

    v.

TRANSCO PRODUCTS, INC.
    Employer

Steven N. Fritzshall, Esquire
    For the Claimant

Irving M. Geslewitz, Esquire
    For the Employer

Before: ANASTASIA T. DUNAU
    Administrative Law Judge

    This is a proceding brought under the Energy Reorganization Act of 1974 (ERA), 42 U.S.C. 5851 and the regulations promulgated thereunder at 29 C.F.R. Part 24. These provisions, the "whistle blower" provisions, protect employees against discrimination in

employment for attempting to carry out the purposes of the ERA and the Atomic Energy Act as amended 42 U.S.C. 201 et seq. A hearing was held in Peoria, Illinois on February 13, 1985 at which all parties were given the opportunity to be heard and to present evidence. Both parties have filed briefs.

I. Jusrisdiction

    The Complainant was terminated by the Employer on November 2, 1984. He complained to the Department of Labor on November 16, alleging that this termination was due to discrimination against him by the Employer because he had complained to the Nuclear Regulatory Commission (NRC) about certain of the Employer's inspection procedures. On December 3, 1984 Area Director Estock notified the Employer that he found merit in the complaint and required that the Employer reinstate Complainant to his former position with back pay and that it compensate him for any expenses including any attorney fees he may have incurred.

    In accordance with the appropriate procedures the Employer by telegram requested a hearing before an administrative law judge and on December 21, 1984, within 7 days of receipt of that telegram, a hearing was set in Peoria, Illinios on February 13, 1985. The hearing was held on that date. The Employer now takes the position that because more than 90 days have elapsed since the complaint was filed and no final order by the Secretary has yet been issued the Secretary no longer has jurisdiction over this matter.

    I do not agree with the Employer's view that the provision in 42 U.S.C. 5851(b)(2)(A) and 20 C.F.R. 6(b)(1) that the Secretary shall issue a final order within 90 days after receiving the complaint deprives the Secretary of jurisdiction if no final order is issued within the time limit set. Those provisions, intended primarily to assure a complainant of a speedy decision, are merely directions to the Secretary to act within a certain time frame. These directions may be waived by either party to the proceedings. Here both parties agreed to and appeared at a hearing a mere three days before the final order was allegedly due and both parties agreed to a briefing schedule which provided for the filing of briefs after the 90 day limit had expired. See Dean Darten v. Rack Company of Chicago, 82-ERA-2. I conclude

that by this conduct both parties have waived the 90 day time limitation and find that I have retained jurisdiction over this matter.

II. The Question of Discrimination

    A. Background. The Employer is a subcontractor of Commonwealth Edison Company of Illinois (Commonwealth) at its Byron, Illinois site where Commonwealth is building a nuclear facility. The Employer installs fire and radiation proof seals on various conduits and pipes. The work force performing this work falls into two categories, the crafts which perform the actual installation work and the quality control inspectors who make sure that the work is performed properly. The quality inspectors must be guided by exact specifications and procedures required by Commonwealth, monitored by NRC and set forth in a manual which the inspectors must study before they begin their work.

    The inspectors' work consists of three phases "marking", "in-process" and "final inspection". "Marking" consists in locating from blue prints the sites where the seals are to be installed and marking the site once found. "In-process" inspection consists of examining 25% of the sites where the seals are in the process of being installed to make sure that these seals comply with the specifications. In "final inspection" all seals are subjected to a final inspection. According to assistant division quality assurance manager Ramon Tancino, quality inspectors are assigned to any of these phases on an "as needed" basis.

    The uncontradicted evidence establishes that Complainant was recruited for the job of quality inspector by Thomas Hoff, a product manager of the Employer, not directly connected with quality control. Hoff still had a job application and resume of Complainant on file which had been filed but not acted upon two years earlier. At the time of Complainant's hire the Employer was under a good deal of pressure to meet construction deadlines and was hiring quality inspectors. Complainant reported for duty sometime late in july or early August.

    Initially Complainant was put to work on markings and worked in that capacity for four to six 48-hour weeks. Thereafter he was put on final inspection where he worked 12 hour days, 7 days

a week.

    Around the 14th or 15th of october he noticed that the final inspection for seals being installed called for inspecting the thickness and depth of the insulating materials covered by the seals. As the seals were already installed and inspection was by the naked eye the inspection called for by the procedure was impossible. He brought the matter up to his immediate supervisor, Quality Control Manager B.C. Machchhar, who told him he would look into the matter. Because of this ambiguity Complainant rejected all the seals he inspected that day and the next two days. The other quality control inspectors passed those seals. Complainant continued to discuss the matter with Machchhar and Machchhar's immediate supervisor, assistant division quality assurance manager Ramon Tancino. Tancino explained to Complainant that the inspection requirement in question was intended to be modified by adding the phrase "where practical" and gave him the modification in writing. Complainant refused to accept the modification because, in his view, Tancino had no authority to modify the procedure. After rejecting the modification Complainant, on October 16, went to the office of the site inspector of the NRC, Hines, and expressed his concerns about the procedures. He also brought to Hines' attention that the Employer was using gypsum rather than silicone as required by the specifications in the seals, which made them fire - but not radiation proof. Hines told Complainant he would look into the matter.

    As a result of Complainant's complaint to the NRC, an inspection was conducted by the NRC on october 18-19, followed up by further inspections on December 10 and January 4, 1985.

    On leaving Hines' office Complainant was seen by an employee of Commonwealth whom he knew and with whom he exchanged a few words. Complainant did not tell anyone that he had talked to the NRC inspector. However, all of the Employer's witnesses acknowledged that there were rumors to that effect. On October 18, 1984 Complainant was taken off final inspections and assigned to in-process inspections. In that capacity he worked 10 hours a day six days a week. On October 25, Commonwealth approved revision of the procedures Complainant had questioned and on October 27 Complainant was transferred back to final inspections. On the evening of Friday, November 2, Tancino informed Hoff that Complainant was being let go because of insufficient production. When Complainant called in on Saturday November 3

to report that he was ill with a cold Tancino informed him that need not return at all, that he was being let go because of poor production. However, when Complainant queried Hoff, Hoff told him that he was being let go because of reduction in force.

    On January 17, 1985 the NRC issued a report on the inspection it had conducted on Complainant's concerns. While the report did not mention Complainant by name it did mention that the matters were being investigated because an individual had contacted the NRC and voiced concern about them. (Exh. C-2, App. p. 8). The report found that the concerns voiced by Complainant constituted safety violations and concluded that the problems raised by Complainant had been resolved by Commonwealth to the NRC's satisfaction.

    B. Knowledge of Employer of Complainant's Contact with the NRC. Initially it is the Employer's position that since it was not established that it knew for a fact that Complainant had complained to the NRC it cannot be charged with having fired Complainant for making such a complaint. I find no merit in this position. Not only had supervisors Machchhar and Tancino heard the rumors that Complainant had complained to the NRC but inspectors Alexander and Herbeg were also aware of them, i.e. there must have been considerable talk about Complainant's visit to the NRC. Such a rumor must be a matter of concern to personnel in charge of the quality controls concerning which the questions are raised, especially since they were aware of the fact that the procedures they used were questionable and had themselves sought clarification. Such concerns can only have deepened when the NRC launched an investigation of the complaint on October 18, an investigation in which Tancino as well as his supervisors were contacted. (Exh. C-2, App. P. 2). Therefore I find that the testimony of Tancino and Machchhar that they paid no attention to these rumors is not credible. Once Claimant's supervisors had heard the rumors and had become concerned about the likelihood that Complainant had raised the matter with the NRC, Complainant was protected by the ERA against any reprisals that might be taken because of these concerns.

    C. Complainant's Termination and Surrounding Circumstances. It is the Employer's position that Complainant was terminated because of poor production and because it was, in any event, expecting to have to reduce the number of quality inspectors due to work slackening off. To support its position, the Employer

produced its Exhibit 7 which purports to show that during the last five days of his employment Complainant completed only 16 inspections when 50 was the average for a five day period. To lend strength to its allegation the Employer also attempted to establish that Complainant's work performance had been poor prior to the last week of his employment. Complainant denies that his work performance was poor at any time, explains the admittedly low production figures for the last week on the ground that he had been given additional work not reflected on Employer's Exhibit 7 and raises the possibility that the exhibit may not be a complete record of all the inspections he performed during the last week, all of which is denied by the Employer.

    I do not credit or accept the Employer's charges that Complainant was a poor employee before October 29, 1984. Machchhar's testimony that Complainant was assigned to final inspection because of his mismarking while performing markings was contradicted by Tancino who had found Complainant's pre-October 15 inspection record satisfactory and by Tancino's testimony that he assigned inspectors to that inspection phase which needed it. This supports Complainant's testimony that he was moved from markings to final inspection because construction had progressed to the point where more final inspectors were needed. Moreover, no confirmation of Machchhar's testimony that an inspector's marking could be identified like handwriting was sought from the two inspector's who testified at the hearing. Complainant, who generally struck me as a credible witness, denied that such identification could be made. Moreover I find it quite incredible that a poor performance in marking, where any mistake will show up when the seals are put in, would cause a transfer to final inspection, where a mistake might not show up until the seal malfunctioned with possibly extremely serious consequences. Accordingly, I conclude that Claimant's performance while doing markings was satisfactory.

    The Employer in its brief for the first time characterizes as insubordination Complainant's conduct in persistently refusing to pass the seals where he had doubts concerning the proper inspection procedure to be used. An inspector's job is to inspect, i.e. to make sure that specifications are met. Unless his concerns are irrational he cannot be ordered to pass an item which he considers unpassable. Here the concerns were not only not irrational but actually justified. It is significant that the reaction of Complainant's supervisors was to transfer him without making any charges of subordination or any attempt at discipline. Accordingly,

I find that Claimant's conduct in failing to pass the seals was not insubordinate and had not been treated as such by his supervisors.

    The only other incident of unsatisfactory alleged poor work performance is the occasion when Claimant was allegedly able to locate only six out of 49 seals to be inspected in the course of one night shift. Complainant's explanations for this performance were uncontradicted. I therefore accept Complainant's version of the incident. However, even if I did not, poor work performance on one shift in the course of a three month employment period during much of which Complainant worked 12 hour shifts 7 days a week hardly would justify classifying Complainant as a poor employee.

    The Employer also relates two incidents of allegedly reprehensible personal conduct. In one of them Complainant kicked a file cabinet in a fit of temper, in another he engaged in horse- play with a fellow employee's flashlight. These incidents occurred well before Complainant's communication with the NRC and apparently were considered too minor to occasion any disciplinary action at the time they occurred. They were clearly dredged up for the purpose of this investigation. For the reasons set forth above, I find that Claimant was a satisfactory employee whose work performance and personal conduct were satisfactory before October 29, 1984.

    This satisfactory employee was terminated on the basis of allededly poor work performance two weeks after he had complained to the NRC. The reasons advanced under such circumstances must be carefully scrutinized to make sure that they are valid and not a cover-up for violating the ERA. The reasons advanced by the Employer cannot withstand such scrutiny. The Employer's major item of proof is its Exhibit 7 which purports to show that Complainant only completed 16 inspections in the last five days of his employment. Complainant admits that the production logged on that exhibit is low and states that he was assigned by Tancino at the beginning of the week to help the craft people locate the markings for the installation of seals. Both Tancino and Machchhar deny making any assignment that Claimant was to assist the crafts. Tancino testified that he mentioned Complainant's low number of inspection completions to him every day and every day received the same excuse that Complainant could not locate the seals to be inspected and that by the end of the week, their patience

exhausted, he and Machchhar decided to terminate Complainant. Complainant admits that Tancino mentioned to him twice during the last week that his production for the day was low and that he should try to get it up.

    Thus the question of the reasons for Complainant's termination must be resolved on the basis of which which witnesses I credit. I believe the Complainant for several reasons. His story is much more likely than that given by Tancino and Machchhar. To accept Tancino and Machchhar's version of events would require believing that Complainant's production which, according to Employer's Exhibit 6, had averaged 25.2 inpections daily for the last five working days Complainant had worked prior to being transferred to in-process inspection plummetted without reason to a total of 16 a week or an average of 3.3 a day for the five days following his transfer back to final production. My credulity is further strained by Tancino's testimony that Complainant was reproached daily about his low production and that Complainant came up with the same weak excuse day after day. Such conduct by Complainant would amount to a desire to provoke a termination. There is nothing in this record that would support a conclusion that Complainant would indulge in that type of game playing. On the contrary the record shows Complainant to be a hardworking young man with a steady history of employment. He struck me as a somewhat naive and unimagnative individual who still appeared perplexed by his termination and seemed to have no reason for wanting to join the ranks of the unemployed.

    On the other hand, I have already indicated that I question Machchhar's credibility because of what I have found to be false testimony concerning the assignment of Claimant from in-process to final inspections. Both Tancino and Machchhar appeared to harbor considerable resentment toward Complainant. Both of them, especially Tancino, appeared very production conscious. It was evident from their testimony and demeanor on the witness stand that they were irritated with Complainant's refusal to accept Tancino's "interpretation" of the procedures and felt that Complainant's persistence had "wasted" valuable production time. Complainant's carrying his battle to the NRC was just one more step in what Tancino and Machchhar quite evidently considered not only a waste of production time but an attack on their authority. Thus a desire on their part to rid themselves of Complainant's trouble making is understandable and in character.

    Complainant's "low production" provided them with the vehicle for obtaining their ends. It is immaterial whether they deliberately plotted Complainant's work assignment to show a low inspection rate or whether, once they had given him his work assignment and became aware of the low rate of inspections, deliberately refused to acknowledge the validity of his explanation in order to create a cause for justifying his discharge.

    There is other evidence in the record indicating that in the last week of Complainant's employment Tancino and Machchhar were intent on documenting a cause for Claimant's discharge. Thus Tancino contradicted himself when he first testified on Tr. pp. 134-35 that the production of each inspector was monitored on a daily basis and on Tr. p. 151 he stated that he does not get an inspection report daily and that reports like Employer's Exhibit are only turned in when the work on them is completed. The latter version agrees with Complainant's testimony that inspection reports are usually turned in two or three days after receipt. Tancino admitted to not collating the production figures of all the final inspectors working between october 29 and November 2, which collation constitutes Employer's Exhibit 8, until after the litigation started, yet Complainant was allegedly terminated because his production was the lowest. Thus it is evident that during the week of October 29 Complainant's daily and weekly seal inspection figures were given the type of scrutiny not commonly given. The most likely explanation for such scrutiny is that the Employer was in the process of documenting a cause for a predetermined discharge.

    The Employer did not deny that on occasion it assigned inspectors to help the crafts locate the markings. It claimed that it had assigned one Jim Pearson to that job the week of October 29. Complainant testified that he had been assigned to help Pearson with that task yet, although the Employer had other inspectors testify, Pearson did not testify nor was his absence explained. Similarly, if Complainant had "goofed off" for five full days, to the extent that Tancino claims he did, someone should have seen him do so. Yet there was no testimony to that effect from either his allegedly concerned supervisors or from his fellow inspectors. For the reasons set forth above, I accept Complanant's testimony that Employer's Exhibit 7 does not show all of the work he did in the five days preceding his discharge, that he had been assigned to assist the crafts, that Tancino made the assignment that both

Tancino and Machchhar knew of his work with the crafts and that Tancino only questioned him twice about his production during that final week.¹ Accordingly, I find that Complainant's work performance in the last week of his employment was satisfactory and did not constitute cause for discharge.

    The Employer has advanced its need to reduce the inspector force as a secondary reason for terminating Complainant. While this argument was never precisely formulated its takes somewhat the form of "we knew we would have to let some people go soon, so we let this low producer go when the occasion presented itself." As pointed out above, the record does not show that Complainant's performance was unsatisfactory. Nor does Employer's Exhibit 9 show,² as the Employer claims it does, that there were five more terminations between Complainant's discharge on November 5 and November 19, 1984. It only shows three more discharges which according to the testimony were for poor production. Because the chart that is Exhibit 9 does not go beyond November 19 it has, of course, no probative value on the question of whether there was an increase in the inspector force at any time after that date. Any such increase so shortly after Complainant's discharge would destroy the Employer's reduction in force argument, i.e. Exhibit 9 does not establish that the Employer reduced its work force substantially within a short time after Complainant was discharged.

    I also question the bona fides of the view expressed by Tancino that he prefers a work force of efficient people working 12 hours a day 7 days a week to a work force of more people working at a less hectic pace. It would appear to me that the Draconian hours worked for weeks on end by the inspectors would, as time progressed, take their toll in lessened efficiency. Moreover, Tancino's views not withstanding, the current crew of seven inspectors employed by the Employer works a 40 hour week. Accordingly, I find no merit in the Employer's claim that Complainant' termination was part of an ongoing reduction in force.

    Considering the record as a whole, the testimony and evidence adduced at the hearing, the demeanor of the witnesses at the hearing, and the parties' briefs, I conclude for the reasons set forth above that the Employer's alleged reasons for the Complainant's termination, low production and reduction in force, were a mere

Employer.³

    In view of the fact that the Employer's discharge of Complainant was known to the other inspectors and as such discharge might have a chilling effect on the employees' willingness to complain to the NRC about perceived violations of the ERA and Nuclear Regulatory Act I shall order the Employer to take the affirmative action of posting a copy of this order at a prominent place at the Byron, Illinois plant of Commonwealth Edison where notices to Transco employees are usually posted.

    Complainant has not yet requested that he be compensated for costs he incurred and that his attorney's fee be paid. The record contains no evidence what costs Complainant has incurred in this litigation or what fee his attorney will charge. No reimbursement for costs or attorney's fee is therefore recommended in this Order. Claimant may however, within 20 days of this Recommended order, submit to me a request for payment of costs and attorney's fee. Such a request shall contain an itemized statement of the costs incurred, the hours and character of the work performed by the attorney and the attorney's usual billing rate. The Employer has 10 working days on which to object to the amount of reimbursement of costs requested and the size of attorney's fee sought. Such objections shall state specific reason therefore.

¹ I do not accept the argument that Complainant must be discredited because he initially denied that Tancino had never complained about his low production. It is evident that he did not consider Tancino's inquiries after October 29 complaints.

    Complainant only raised the possibility but offered no proof that Exhibit 7 did not represent all the inspections he completed in the last five days of his employment. While Tancino insisted that it did, the fact that the covering sheet is not numbered, represents work in a different fire zone from that shown on the remaining sheets and shows no inspection at all for October 31 raises some suspicion that one or two sheets might have been removed to make sure that Complainant's inspection figures appeared convincingly low enough. However, such suspicion is not sufficient basis for a finding of tampering. Accordingly none of my conclusions herein are based on Complainant's testimony that Employer Exhibit 7 might not be a complete record of the inspections he completed in the five days before he was terminated.

² This exhibit was marked for identification but was inadvertently not admitted into evidence. It hereby is so admitted.

³ This finding is not intended to imply that I consider Complainant's concerns unjustified or approve of the Employer's action in passing the seals in question.