U.S. Department of Labor
Office of Administrative Law Judges
304A U.S. Post Office and Courthouse
Cincinnati, Ohio 45202
(513) 684-3252
Date Issued NOV 26 1986
Case No. 86-ERA-33
In the Matter of
JOHN B. SPENCER
Plaintiff
v.
HATFIELD ELECTRIC CO.
Respondent
Appearances:
Ted V. Ruffin, Esq.
Darrel Walters, Esq.
for the Plaintiff
Peter DeBruyne, Esq.
for the Respondent
BEFORE: Richard E. Buddleston
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
[Page 2]
This is a proceeding under the Energy Reorganization Act of
1974, as amended (hereafter called the "Act"), 42 U.S.C. § 5851
and its implementing regulations, 20 C.F.R. Part 24. The Act, in
§ 5851 (a), generally prohibits a Nuclear Regulatory Commission
(NRC) licensee from discharging or otherwise discriminating
against an employee who has engaged in protected activities as
set forth in the Act.
Statement of the Case
The Plaintiff, John B. Spencer, filed a complaint on May.
29, 1986, with the Office of the Administrator, Wage and Hour
Division, Employment Standards Administration (ESA), U.S.
Department of Labor. His complaint alleges that he was terminated by
Hatfield Electric Company (hereinafter, "Hatfield"), because, "I
feel the reason I was laid off was because I went to the NRC."
Hatfield Electric Company was at all times relevant to the
matters involved in this case, a subcontractor to Commonwealth
Edison Co. which was either a Nuclear Regulatory Commission
Licensee or an Applicant for NRC License. Commonwealth Edison
Co. has been involved in the construction of a Nuclear Power
Station at Byron, Illinois, and Hatfield has employed both
production personnel for the physical construction of the plant and
inspectors in its Quality Assurance/Quality Control Department.
Spencer was employed by Hatfield as an inspector from August 1984
through May 16, 1986.
The Complaint filed by Spencer states that on May 7, 1986 he
met with Julian M. Hinds, Jr., the resident NRC inspector at the
Byron Station. The purpose of the meeting was to discuss his
feeling that he was being harassed when he went to the vault at
Hatfield's main office to verify paperwork necessary to completion
of inspection reports assigned to him.
Spencer complains that on May 7, 1986, while at the main
vault, he received a call from his Lead Inspector asking what he
was doing at the main office, and that this had occurred 4 or 5
times before. He indicates that be then went to see Mr. Al
Smith, QA/QC Manager, to discuss this matter, and that,
I informed Mr. Smith that I felt that this was harassment
and that every time I go to the vault or see Engineering, my
Lead would get a phone call wondering what the hell I was
doing up at the office. I had informed Mr. Smith at this
[Page 2]
time that if this practice was going to continue that
would be filing a complaint with the Nuclear Regulatory
commission a bout this harassment. At that time I asked Mr.
Smith, "was this going to continue?" His answer was "yes."
At the meeting with NRC inspector Hinds, Spencer states that
he discussed this problem and told him that all management wanted
to do was get the reports out and get the project done. He
states that he was informed that if he filed a complaint, he
might get laid off in the near future, but indicated he wanted to
file a complaint anyway.
A meeting was held at the plant on May 9, 1986 with NRC
inspector Hinds and other inspectors including Spencer. On May
16, 1986 Spencer was informed that he was being laid off with
another inspector and a surveyor. The reason given to Spencer
for his lay off was that the work was winding down. Spencer
indicates that he responded that the reason he was being laid off
was because he had gone to the NRC.
Spencer's complaint (May 29, 1986) was investigated by ESA,
and on June 24, 1986 a finding was made that Mr. Spencer was
a protected employee engaging in a protected activity under the
Energy Reorganization Act and that discrimination as defined and
prohibited in the Act was a factor in his lay-off. This finding
advised that Hatfield should reinstate Spencer with retroactive
pay, and attorney's fees.
In response to the adverse finding by ESA, Hatfield
requested an appeal and a formal hearing before an Administrative
Law Judge on June 27, 1986. This matter was assigned to this
Administrative Law Judge for disposition on July 7, 1986. A
formal hearing was conducted on August 19, 20 and 21, 1986 at
Davenport, Iowa. All parties were afforded full opportunity to
present evidence and to examine and cross-examine witnesses.
Testimony from witnesses called by both the Plaintiff and the
Respondent was produced.
The Plaintiff offered exhibits marked as C-1 through C-10,
C-13 through C-21; all of which are admitted into the record
except C-2, which was not admitted. There are no exhibits marked
as C-11 or C-12. The Respondent offered exhibits marked as R-1
through R-15 which are admitted into the record. The Parties
offered one joint exhibit, marked as J-1, which is admitted.
[Page 3]
The record was left open 15 days post hearing for briefs.
However, upon motions by both parties for an extension of time
for filing briefs, the record was left open until November 1,
1986. Both the Plaintiff and the Respondent have filed
post-hearing briefs. The Plaintiff has waived the time limits for the
final decision of the Secretary of Labor under 20 C.F.R. § 24.6,
in view of the lengthy transcript and the need to receive the
transcript prior to drafting his brief.
The findings of fact and conclusions which follow are based
upon my observation of the appearance and demeanor of the
witnesses who testified at the hearing and upon an analysis of the
record, including all documentary evidence provided, statutory
provisions, regulations, case law and arguments of the parties.
Issues
1. Whether the Plaintiff was discharged from employment at
least in part because of his engaging in activity protected under
the Energy Reorganization Act; and
2. Whether the Respondent would have discharged the
plaintiff even if the protected activity had not occurred.
Discussion and Conclusions
In order to prevail under the Energy Reorganization Act, the
Plaintiff must prove that Hatfield Electric Co. is an employer
subject to the Act; that he was discharged or otherwise discriminated
against with respect to his compensation, terms, conditions
or privileges of employment; and 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 discrimination
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); Mt. Healthy, 429 U.S. 287, 97 S.
Ct. 576.
The parties have agreed that Hatfield Electric Company was
at all times relevant to this case, a sub-contractor to
[Page 5]
Commonwealth Edison, who was either an NRC licensee or applicant for an
NRC license. (See, Joint exhibit 1). In addition, it is not
contested by the Respondent that Spencer did in fact discuss with
an inspector for the NRC what he considered harassment with
respect to his examination of documents in the main office vault.
The Respondent however contends that the decision to lay
off Spencer was made prior to such contacts with NRC. (See,
Respondent's brief.) Since it is not contested that contacts
were made with NRC, I find that Spencer was a protected employee
within the meaning of the Energy Reorganization Act. However, it
remains to be determined whether Spencer's protected activity was
a factor in his discharge or whether he would have been laid off
in any event.
The Respondent has argued in its brief that the decision to
lay off Spencer was made on May 5, 1986 (see, exhibit R-14), two
days prior to the incident where Spencer advised he was going to
complain to the NRC. Thus, it is argued that Spencer's complaint
to the NRC could not have been a factor in his discharge. The
Respondent further argues that even if it is found that Spencer's
protected activity partially motivated Hatfield's layoff decision,
Hatfield would have laid off Spencer if the protected activity
had not occurred.
The Plaintiff argues that exhibit R-14 and the testimony
supporting it are fabrications created after the fact in an
effort by Hatfield to escape liability for wrong doing in
violation of the Federal Law (Plaintiff's brief at page 4). The
allegation that the document itself is a "fabrication" is a very
serious charge, raising even the issue of possible criminal
activity by falsification of the document.
In support of that argument, the plaintiff notes that both
Al Smith and Ross Farrell were fired by Hatfield shortly after
Mr. Spencer's layoff. (Ross Farrell was the Plaintiff's lead
inspector, while Al Smith was QA/QC manager for Hatfield). In
addition, Counsel questions why the exhibit was not produced as a
part of his requested discovery, and submits that "Counsel for
Hatfield claimed he had produced all documents of which he had
knowledge, and yet the testimony of Al Smith makes clear that
Hatfield's counsel was aware of the document long before
Claimant's counsel made their request for production."
[Page 6]
At the hearing Al Smith was questioned regarding the reason
he was released from Hatfield's employment shortly after the
Plaintiff's layoff. In response to the question from Plaintiff's
Counsel, "What was your reason for leaving Hatfield Electric
Company then?", Mr. Smith responded that "That was a political
situation ... All I know is it's a political situation. That's the
information I have. I have no other information." (See,
transcript page 666).
The implication from Counsel is apparently that Al Smith was
fired somehow because of the John Spencer situation. However,
there is absolutely no evidence to support this contention.
Further, even if Hatfield did fire Mr. Smith somehow because of
Spencer's complaint to the NRC, such evidence is not sufficient
to prove that the document in question (R-14) was a fabrication.
Mr. Ross Farrell was also questioned regarding the
termination of his employment by Hatfield shortly after Spencer's
release. (See, transcript pages 568-576.) Farrell testified
that he was terminated due to a reduction in force. He did
indicate that he understood someone else had taken his place, but
denied any knowledge of any criticism of his work by the NRC.
However, the issue at hand is whether this information somehow
supports this allegation by Counsel that R-14 is a "fabrication."
It is my judgement that it simply does not, and there is no other
evidence in the record to support such. Even if Hatfield fired
Farrell because Spencer made a complaint to NRC, such is not
evidence that R-14 is a fabrication. Indeed, Mr. Farrell
credibly testified that the decision as to who should be reduced
in force was discussed in advance of May 7, 1986, and verified
his part in the decision reflected in R-14.
As indicated, Counsel has also argued that the failure of
Counsel for the Respondent to produce R-14 prior to the hearing
is further evidence of the fabrication of R-14.
Prior to the hearing, a request for production of the
Plaintiff's personnel file and other documents was made by Counsel for
the Plaintiff on August 1, 1986 (received at the Administrative
Law Judge's office on 8/4/86). Because the hearing was scheduled
only 15 days after receipt of the motion, leaving a possibly
insufficient time for the Respondent to reply to the motion prior
to the hearing on August 19, 1986, a telephone conference was
conducted on August 13, 1986, with Mr. Darrell Walters
(co-counsel with Mr. Ted Ruffin for the Plaintiff) and Mr. DeBruyne
[Page 7]
for the Respondent.
During the conference, it was agreed by Counsel that the
requested documents had been provided to the Plaintiff. It was
represented by Respondent's Counsel that the entire personnel
record had been produced, but that other documents not contained
in the personnel file might be offered into evidence. When Mr.
DeBruyne advised that other documents which were not a part of
the personnel record might be offered at the hearing, I advised
Mr. Walters that a continuance of the entire matter would be
granted so that all documents could be reviewed by the Plaintiff
in advance of the hearing. Mr. Walters advised that a postponement
was not requested and that the Plaintiff would rather have
the hearing as scheduled on August 19, 1986. (See, transcript
page 655.)
The record does not contain any evidence that exhibit R-14
was ever a part of the Plaintiff's personnel file. This document
is a message from Ross Farrell dated 5/5/86 to Al Smith, QA/QC
Manager, advising of 4 individuals to be affected by a reduction
in force effective 5/16/86. The Plaintiff's name is included in
this list. The document further reflects the approving signature
of Al Smith with a date of 5/5/86.
The Plaintiff objected to the admission of exhibit R-14 on
multiple grounds, including the failure to produce that document
prior to the first day of the hearing. While it is true that
discovery requests were made, and the Respondent agreed to produce
the Plaintiff's entire personnel file, R-14 was not submitted to
Counsel until the first day of the hearing.
No explanation has been offered by the Respondent to the
obvious question of, why was R-14 not brought to the attention of
the Plaintiff or the U.S. Department of Labor investigators until
the first day of the hearing. Nevertheless, unless one is prepared
to believe that R-14 is a complete fabrication, this failure to
produce the document does not negate the evidence it contains;
i.e., that the decision to lay of Spencer was made 2 days before
there was any indication that he had a complaint to make to the
NRC. From my consideration of the evidence, I am not prepared to
believe that R-14 is a fabrication. I am persuaded from the
evidence that R-14 was drafted and executed on May 5, 1986.
I have carefully considered all the evidence in the record
[Page 8]
including the testimony of witnesses, and specifically the
testimony of both Ross Farrell and Al Smith. I find that both Mr.
Farrell and Mr. Smith testified credibly that the decision to lay
of the Plaintiff was discussed prior to, and finally made on May
5, 1986. The credible evidence establishes that Mr. Spencer was
reduced in force as a part of the overall shut down of Hatfield's
primary work, since the power plant was virtually completed.
Based upon all of the foregoing, I find that the evidence
does not establish that there is any relationship between the
discharge from employment of John B. Spencer and his protected
activities under the Energy Reorganization Act.
In view of this decision, I find that it is not necessary to
rule upon the issue of the admissibility of C-2, which was raised
at the hearing, with ruling reserved. The Plaintiff sought to
establish by C-2, that "Hatfield Management agreed upon seniority
for laying off pending equal qualification and competence." (See,
QA/QC Negotiations 1/21/85 Minutes, paragraph 3, C-2 not admitted.)
Exhibit C-2 was not admitted (Transcript page 167), upon the
Respondent's objection; the exhibit contains the negotiation
notes preliminary to execution of the final agreement entered
into between the International Brotherhood of Electrical Workers
and Hatfield. Counsel for the Plaintiff has argued that there is
evidence of fraud on the part of Hatfield, with regard to whether
this provision was intended to be included in the final draft of
the agreement; and as such, this parole evidence should be
admissible.
It is my judgement that even if the seniority provision were
a part of the agreement, such would not be relevant to the issue
in this case of whether Spencer's protected activities played
any part in his discharge from employment. As indicated, I find
that R-14 conclusively establishes that the decision to fire
Spencer was made prior to and independent of Spencer's contact
with the NRC. Thus, even if the decision were made in violation
of the terms of any collective bargaining agreement, such has no
relevance to the issue before me.
ORDER
It is hereby Ordered that the complaint of John B. Spencer
under the Energy Reorganization Act is Dismissed. Pursuant to 29
C.F.R. § 24.6 this recommended decision shall be forwarded to the