Smith v. Catalytic, Inc., 86-ERA-12 (ALJ Feb. 3, 1987)

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Smith v. Catalytic, Inc., 86-ERA-12 (ALJ Feb. 3, 1987)

U.S. Department of Labor
Office of Administrative Law Judges
1111 20th Street, N.W.
Washington, D.C. 20036

DATE: February 3, 1987

CASE NO. 86-ERA-12

IN THE MATTER OF

DAVID H. SMITH, JR.
CLAIMANT

CATALYTIC, INC.
EMPLOYER

Appearances

Don Murrell, Esquire
For the Complainant

Peter J. Hurtgen, Esquire
For the Employer

BEFORE: ROBERT G. MAHONY
Administrative Law Judge

RECOMMENDED DECISION ON REMAND

Supplemental Statement of the Case

[Page 2]

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 by his employer 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, Employment Standards Administration, 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 a formal hearing with the Office of Administrative Law Judges on December 20, 1985. A 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-examine witnesses and present oral argument.

A recommended decision was entered in the above cause on March 10, 1986. By Decision and Remand order dated May 28, 1986 the Secretary remanded the proceedings to the Administrative Law judge. The remand order directed the Administrative Law judge to take additional evidence and inquire into the reasonableness in the circumstances of the complainant's refusal to work in what he allegedly believed to be an unsafe area in accordance with the Secretary's holding in Pensyl v. Catalytic, Inc., 83-ERA-2. Pursuant to the Decision and Order on Remand a second evidentiary hearing was held in West Palm Beach, Florida on September 26, 1986.

Statement of Facts

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. He obtained the job through the union hiring hall. After about two weeks, as part of his training, he went to radiation school. Subsequently, he was permitted to work anywhere in the plant except where a respirator was required because he could not be properly fitted.

[Page 3]

On September 26, 1985, he was assigned to work at level "minus-5" putting in fire dampers. He had worked at this level the previous day. While leaving the work area at about 8:30 A.M., a co-worker Mr. James "Chico" 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 after a radiation device went off. Health physics personnel advised 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. (Tyree and other Employees were also in the breezeway area letting noble gas blow off.) 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, whereupon Mr. Wright handed him a termination slip and Smith left the work site.

At the hearing upon remand, David Smith testified that he has a recurring problem with his lungs. In 1978 he spent a week in the hospital after coughing up blood. He was diagnosed as having acute chronic bronchitis. The doctor advised him to quit smoking cigarettes or by the time he was 35 he would not be able to leave the house without an oxygen bottle. He was also told to take precautions that materials he breathed were not hazardous to his health. On September 3, 1985 the day he was hired by Catalytic, and subsequently on the day he received his red badge, he noted on employee medical forms that, in the past, he had coughed up blood, had a chronic cough and ear, eye or throat trouble.

As a sheet metal worker, Smith works with fiberglass materials that require grinding. He wears a mask to avoid

[Page 4]

breathing contaminants. He testified he became concerned about his lung condition when he learned he was exposed to noble gas, especially when he set off the friskers. He did not, however, talk to anyone from health physics regarding how the breathing of noble gas would affect his lung condition.

On cross-examination, Mr. Smith testified that he attended the training course required for all Employees, where he learned that noble gas was treated as a skin disorder, a beta skin contamination.¹

Gene Wright was called as a witness for the Complainant. Wright's duties include supervising sheetmetal work at the power plant. On September 26, 1985 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 had been "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 on September 26th, 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 gas which naturally occur inside a reactor while it runs. It can be inhaled but will not build up a concentration. However, noble gas can cause cataracts and skin disorders when concentrations are high. He testified that 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.

[Page 5]

Employees are taught to keep their radiation doses as low as possible, and it is their responsibility to do it. Employees are told that there are two theories of radiation exposure: the threshold theory and the linear theory.² While both are explained to employees, the employer uses the linear theory. workers are given instructions orally and in writing concerning radiation safety.

Finch testified that noble gases are treated as a beta exposure, which is a skin exposure. Noble gases are inert and not considered to be an internal exposure or hazard. Even though it may be inhaled, it is not ingested into the lungs and is exhaled. It does not mix with the body, and is not a respiratory hazard.

The function of the "friskers" is also covered in the class room materials. Friskers are used to check for contamination for both surface and airborne situations. How they are used is demonstrated in the class. When they go off, they emit an audible clicking noise. There is also a meter and an alarm light. The noble gas exposure limits, per calendar quarter, is 7,500 millirem and the employees are told this during their training. Finch agreed that exposure to 4.03 millirads per hour of noble gas would set off the frisker.

The employees are told that if they set off a frisker, health physics people will come and talk to them. It is standard procedure that when someone is exposed to noble gas the person sits down inside the Radiation Controlled Area (RCA) for thirty minutes to one hour. The gas dissipates very rapidly. They are frisked again and can leave the RCA.

On cross-examination, Mr. Finch acknowledged that pre-existing medical conditions are not discussed in class. Unless a student raises a question, he does not discuss how exposure to contamination might aggrevate pre-existing medical conditions.

The Respondent, Catalytic called Mr. Kenneth Lemmond as a witness. He is currently employed as a senior health physics technician for Numanco, a subsidiary of Westinghouse.

[Page 6]

He has been a senior health technician since early 1981. His job is to assure that radiation workers do not become over exposed to radiation, have proper protective clothing and that the employee work areas are not contaminated or irradiated beyond limits.

In September, 1985 he was working as a senior health physics technician at the St. Lucie Nuclear Power Plant in Port St. Lucie, Florida. He was assigned to work only in the nuclear reactor building at the "minus 5" level, which contained rooms, pumps and tanks. One of his duties was to take air samples and visually check areas.

On September 26, 1985 he reported for work by 7:00 a.m. and went to the "minus five" areas where 20 to 25 employees of Catalytic construction worked. He took air samples for particulates and gases including noble gases at approximately 8:30 a.m., which was part of his routine. The samples were then analyzed by a laboratory located in the same building.

On the morning in question, no instruments such as air monitors, which operated in addition to the air samples taken, indicated any problem in the work area. Friskies were not clicking to indicate that there was contamination above normal limits. Both accesses on the floor also had postings to show radiation levels. Subsequently, the lab technician called him to advise that noble gases were present in the air at a level 4.03 milliem per hour. (When the level reaches 5.0 a sign-in sheet is required so the skin dose of each individual can be monitored) Because of the 4.03 reading, accompanied by a lab technician's suggestion, he took a back-up sample at about 9:30 a.m.

While he took samples he spoke with employee's working in the area including the Complainant who, at the time, was with a group of about four other employees. Mr. Tyree was also with this group. He advised the workers that there was a "slight noble gas airborne condition," and they might want to go up early so it would blow off their clothes and skin. According to Mr. Lemmond, it is not a major problem, and was a relatively common occurrance.

Mr. Lemmond testified that Mr. Smith seemed concerned when advised that they might set off the "friskers" when

[Page 7]

they left. He also told them to leave early to let the gas dissipate. Smith inquired if the conditions were harmful to him, and Mr. Lemmond stated that they were no more harmful than normal conditions working in a nuclear plant. Lemmond advised that if there was a problem, workers would be told to leave. According to Lemmond, Smith seemed satisfied with this explanation. Lemmond testified he advised the supervisor, Gene Wright, that the men would be coming out fifteen or twenty minutes early if the situation persisted.

Later that day, when Mr. Lemmond was in the lab, a safety man from Catalytic showed him Smith's badge and photo and inquired if Lemmond knew him. Lemmond responded that he knew Smith was a worker, but did not know his name. Lemmond advised the safety man of his conversation with Smith earlier that day.

Lemmond testified that he, as well as others, continued to work in the minus-5 area all day. He never advised employees to leave the area. He took air samples later in the day and they were normal. Noble gases never reached the "five" level.

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 environment from adverse effects.

Mr. Buchanan described noble gases as non-radioactive which do not readily combine with other elements. If one inhaled noble gas, it would not be transferred to the body. He stated that noble gas in extreme quantities, 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 riot considered a "radiation area." Also, noble gas is not a respiratory hazard; it is treated as a skin exposure.

[Page 8]

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.

James Tyree was called as a witness on behalf of the Complainant. He worked at the St. Lucie Nuclear Power Plant with David Smith. On September 26, 1985 he was also working on the "minus-5 level." While going to the work shop, he set off friskers. He told the other workers, including Smith, that he set them off.

Smith came upstairs and he and Tyree went to health physics. A health physics employee frisked them and the friskers went off. Tyree stated he did not see Mr. Lemmond at all that morning, but he and everyone else, except Mr. Smith, worked their regular shift that day.

Discussion

The predicate for the instant remand order is the Secretary's decision in Pensyl v. Catalytic, Inc. 83-ERA-2 (1984) where the Secretary held that, under the Act, "[a] worker has a right to refuse to work when he has a good faith, reasonable belief that working conditions are unsafe or unhealthful. Whether the belief is reasonable depends on the knowledge available to a reasonable man in the circumstances with the Employee's training and experience." Pensyl Decision and Order at 6-7.

On the other hand, under Pensyl, "[r]efusal to work loses its protection after the perceived hazard has been investigated by investigated by responsible management officials and government inspectors, if appropriate, and, if found safe, adequately explained to the employee. Pensyl Decision and Order at 7.

When the incident involving noble gas exposure occurred, Complainant had worked at the nuclear power plant for about three weeks. He had a course of instruction involving radiation safety. As part of this course, he testified that students were taught that noble gas was treated as a skin disorder, a beta skin contamination. The properties of noble

[Page 9]

gas were contained in course material that was provided to the students. It includes the statement: "Unlike iodine and particulates, noble gas will not be taken into our blood or bodies when they are breathed in."

On the day that noble gas was present in the work area, I credit the testimony of Mr. Lemmond that the routine procedure for monitoring air samples in work areas were employed. I also credit Mr. Lemmond's testimony that he advised employees, including the Complainant, of a potential noble gas problem and suggested they leave the work area early so the gas could blow off their skin and clothes. This information was consistent with the school training and re-emphasized that noble gas was a skin problem. Additionally, I find that the action of Mr. Lemmond in investigating the noble gas problem, informing the employee and taking a second gas sample as recommended by the laboratory constitutes an investigation by an appropriate management official. I further find that he made an adequate explanation to the employees within the meaning of Pensyl.

I further find that when the Complainant set off friskers, health physics personnel advised him that he was exposed to noble gas and not radiation contamination and if he sat in the breezeway it would blow off his clothes and skin. I further find that this explanation by the health physics personnel constituted an investigation by management and an adequate explanation to the employee within the meaning of Pensyl.

I credit the testimony of Mr. Tyree that everyone except the Complainant worked their regular shift that day.

I credit the Complainant's testimony corroborated by documentary evidence that he did, in the past have bronchitis, spit up blood and it was reasonable for him to be concerned about airborne contaminants.

Although his period of employment was relatively short, I find that, in the circumstances, the Complainant with his training and experience knew that noble gas was a skin exposure that would dissipate by allowing it to blow off.

I conclude that the Complainant, in the circumstances

[Page 10]

with his training and experience, did not have a good faith reasonable belief that the working conditions were unsafe or unhealthful.

I conclude that responsible management officials perceived the potential hazard, investigated it and adequately explained it to the employees, including the Complainant.

I conclude that no violation of the Act or regulations occurred and recommend that the complaint be DISMISSED.

ROBERT G. MAHONY
Administrative Law Judge

[ENDNOTES]

¹ Noble gases are described in the course material as follows:

Airborne Contamination ... noble gas is also produced during the fission process and released into the coolant. Anytime coolant leaks or is vented noble gases can be released into the air. Unlike iodine and particulates, noble gases will not be taken into our blood or bodies when they are breathed in. Noble gases emit beta radiations and have the same limit as skin of the whole body: 7.5 rem/quarter .... Noble gases are drawn off and held in larger tanks for a few half-lives prior to release .... Noble gas half-live usually in mintues.

² The threshold theory is that it takes a certain amount of radiation before a person begins to suffer any particular damages. The linear theory holds that a person begins to suffer damages after any amount of exposure over a given period of time.