Case No. 86-ERA-12

In the Matter of

DAVID H. SMITH, JR.
   Claimant

    v.

CATALYTIC, INC.
    Employer

David H. Smith, Jr.
    Pro se

Peter J. Hurtgen, Esquire
    For the Employer

Before: ROBERT G. MAHONY
    Administrative Law Judge

    This is a proceeding under the Energy Reorganization Act of 1974, as amended, 42 U.S.C. §5851 and its implementing regulations at 29 C.F.R. Part 24.

    The Complainant, David H. Smith, Jr. was terminated from the St. Lucie Nuclear Power Plant on September 27, 1985 for refusing to return to a work area he felt was unsafe because of exposure to noble gas.

    He filed a complaint with the Wage and Hour Division, U.S. Department of Labor on November 17, 1985. Conciliation efforts failed to produce a mutually satisfactory result. A subsequent investigation by the Wage and Hour Division determined that the Complainant was terminated from Catalytic, Inc. due to his refusal to work a job assignment. The Complainant was informed of the conclusion on December 9, 1985.

    The Complainant filed a request for formal hearing with the Office of Administrative Law Judges on December 20, 1985. The hearing was held in West Palm Beach, Florida on January 21, 1986, at which time the parties were given an opportunity to introduce evidence, cross-examined witnesses and present oral argument.

    The Complainant David H. Smith, Jr. has been a sheetmetal worker since 1973. He began work at the St. Lucie Power Plant on September 3, 1985. As part of his training he went to radiation school for two weeks which permitted him to work anywhere in the plant except where a respirator was required because he could not be properly fitted.

    On the September 26, 1985, he was assigned to work at level "minus-5" with a co-worker, Chico Tyree, putting in fire dampers. While leaving the work area at about 8:30 A.M., Mr. Tyree determined that he was "contaminated" when he went through the process of being "frisked". Tyree told Smith to get checked out to see if he was "contaminated". Smith determined that he was also contaminated after a radiation device went off. Health physics personnel advised Mr. Smith that he was exposed to noble gas and not radiation contamination. He was advised to sit in a breezeway area and the air would dissipate the noble gas.

    Smith went to the breezeway and was sitting there for about one-half hour when his supervisor, Mr. Gene Wright, came down the corridor and asked what he was doing. The Complainant stated that he was "crapped up" with noble gas. Wright told him to go back to his work area. Smith told Wright that he did not want to go back

down to that work area and asked for another assignment. Wright advised Smith that "minus-5" was the only job available, and when Smith suggested that absent other work, Wright wanted him to go home, Wright, according to Smith said "Yes, that's all I have." Smith subsequently left and went to the union hall. The following day he reported back to work, where upon Mr. Wright handed him a termination slip and Smith left the work site.

    Gene Wright was called as a witness for the complainant. Wright's duties include supervising sheetmetal work at the power plant. On the date in question he had about 17 employees working for him. He corroborated the complainant's version of the events but denies telling Smith to go home. Wright testified that he told Smith to return to his work area unless health physics personnel told him to leave. Wright stated that he did not want Smith to go home, but the "minus-5" level was all the work he had for him.

    Wright testified that he knew of the noble gas problem because he got "contaminated" himself. He had to wait until the air blew it off so he could go over to the shop.

    He stated that "minus-5 was a radiation area that the health physics people had to check before the workers went into it and it would have been checked on the date in question. For a period, the health physics people asked Wright to remove 2 workers out of the east end of the area until the duct system drew the noble gas out, but the rest of the area was not bad enough to remove workers.

    Mr. Robert Finch, the Florida Power and Light Training Coordinator was called as a witness by the complainant. He taught health physics courses and radiation safety.

    Finch defined noble gas as "inactive". It is a naturally occurring gas inside a reactor while it runs. It can be inhaled but won't build up a concentration. However, noble gas can cause cataracts and skin disorders when concentrations are high. The plant has radiation areas and has posting requirements depending on the level. Any area below 5 millirems is not considered to be a radiation area and normal business is conducted.

    Mr. Henry Buchanan is the site health physicist at the St. Lucie power plant and testified on behalf of the Respondent. He has 23 years experience in the health physics field including 6 1/2

years at the Brookhaven National Laboratory. His duties are to promote the good effects of radiation while protecting man and the the environment from adverse effects.

    Mr. Buchanan described noble gases as non-radioactive and do not readily combine with other elements. If one inhaled noble gas, it would not be transferred to the body. He stated that the only toxic ability of noble gas is that in extreme quantities it can replace oxygen and become an asphyxiant, but the levels involved here were not of that degree. He advised that the presence of noble gas in a nuclear power plant is a common experience.

    The power plant has internal procedures dealing with measuring and reacting to noble gas, depending on the quantity and quality in the air. By Nuclear Regulatory Commission definition, however, if the radiation control area is below 5 millrads per hour, it is not considered a "radiation area." Also, noble gas is not a respiratory hazard; it is treated as a skin exposure.

    Smith had failed a respirator test, and, had a respirator been required, he would not have been allowed to work in such an area. Because he could not wear a respirator, Buchanan stated that there were fewer jobs available to him.

    On the date, Smith and Tyree were exposed to the noble gas, at 9:30 A.M. reading showed 4.03 millrads per hour, which according to Mr. Buchanan, did not present a hazard to humans.

    The ultimate issue in this case, is whether the Respondent discriminated against David Smith becaue he engaged in "protected activities."

    In order for a Complainant to prevail on a discrimination claim under the Energy Reorganization Act, 42 U.S.C. §5851 (hereinafter ERA), the Complainant must prove that: (1) the party charged with discrimination is an employer subject to the Act; (2) that the complaining employee was dischaged or otherwise discriminated against with respect to his compensation, terms, conditions or privileges of employment; and (3) that the alleged discrimination arose because the employee participated in an NRC proceeding. Deford v. Secretary of Labor, 700 F.2d 281, 286 (6th Cir. 1983) Once the employee shows that an illegal motive played some role in the discriminatory

act(s), the burden shifts to the employer to prove that he would have discharged or taken whatever discriminatory action was proven, even if the protected activity did not occur. Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984). See also NLRB v. Transportation Management Corp., 103 S.Ct. 2469 (1983).

    I credit the testimony of Mr. Finch and Mr. Buchanan to support my finding that adequate instruction and reasonable precautions are taken by the employer who is covered by the Act, to insure employee health and safety regarding exposure to noble gas.

    In this case, the dispute concerned whether Mr. Smith was reasonable in his refusal to return to the "minus-5" area and, if so, whether he should have been terminated. The reasonableness of these actions may be determined in another forum, but in no event will the evidence adduce in this proceeding support any conclusion that the Act was violated because there is no evidence that the complainant participated in a NRC proceeding.

    The complaint in the above case be, and the same is, hereby DISMISSED.

       ROBERT G. MAHONY
       Administrative Law Judge Dated: 10 MAR 1986
Washington, D.C.

RGM/yw