This case, arising under the employee protection provision
of the Energy Reorganization Act (ERA), 42 U.S.C. 5851, is
before me on a recommended decision by Deputy Chief Administrative
Law Judge Edward C. Burch. (See 29 CFR 24.6(a).) Judge Burch
held a hearing at the request of the complainant, Robert
Mackowiak, who had filed a "whistleblower" complaint alleging he
had been discharged by University Nuclear Systems, Inc., (UNSI)
in retaliation for having contacted the Nuclear Regulatory
Commission about violations of its regulations. UNSI defended
the charge by asserting that it discharged Mr. Mackowiak as
part of a Reduction-In-Force and because Mr. Mackowiak had
a bad attitude detrimental to efficiency and morale. The ALJ
found that the evidence supported UNSI's position that complainant
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was discharged for legitimate business reasons and recommended
that the complaint be dismissed.
Robert Mackowiak was hired by University Nuclear Systems
as a Level 2 Quality Control inspector in January 1981. An
investigation of UNSI by the Nuclear Regulatory Commission
under the supervision of Bechtel Power Corporation installing
the heating, ventilating and air conditioning system at a nuclear
power plant owned by the Washington Public Power Supply System
of Richland, Washington.
Mr. Mackowiak was a sheet metal worker and welder and
had been certified by the American Welding Society as a welding
inspector. As a Level 2 Quality Control Inspector, Mr.
Mackowiak's duties were to assure that proper procedures and
construction practices were followed in the fabrication and
installation of heating, ventilating and air conditioning (HVAC)
ductwork and equipment. If, upon inspection, he found an improperly
installed or constructed item, he was supposed to put a red
tag on it And file a nonconformance report (NCR). The NCR
would have to be resolved by the engineering department before
work could resume on that art of the HVAC system. In the
event an inspector found an item which raised questions about
conformance to engineering specifications, he would write a
Quality Control Request For Information (QCRFI) to the Quality
Assurance Department which was supposed to get the answer and
inform the inspector.
All of the activities of Quality Control inspectors, from
the organization and functions of Quality Assurance Department to the
standards used in inspecting the actual work, are governed by detailed
regulations of the Nuclear Regulatory
Commission at 10 CFR Part 50. Under Appendix B of that Part,
all licensees, contractors and subcontractors are required
to establish and maintain quality assurance systems and
procedures which meet at least the requirements of Appendix B
as a condition of retaining their license to build and operate
a nuclear power plant.
In September of 1981, Mr. Mackowiak was contacted by
inspectors from the Nuclear Regulatory Commission in connection with
their ongoing investigation of UNSI's work. Later he called
them with follow-up information and he and his wife, Lorna
Mackowiak, who also was a Q.C. inspector for UNSI, met with
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NRC inspectors at their home.
Some time in September or October 1981, the NRC inspector
was asked by the Quality Assurance manager if Mr. Mackowiak
was involved in NRC's investigation and he said yes, and said
that there was a great deal of unrest among the Q.C. inspectors
on the swing shift. No one from the NRC ever mentioned Mr.
Mackowiak's name to UNSI management again. On the same day
that the NRC held an "exit interview" with UNSI management,
October 22, 1981, Mr. Mackowiak, and his supervisor on the
swing shift Virginia Robbins, were given counseling statements
warning them about their negative attitudes, including refusal
to accept "management input" and "directives". They each were
told they would be terminated if their attitude did not improve
within 30 days. Virginia Robbins was relieved of her
supervisory duties and assigned to the day shift. She protested
the counseling statement and quit. Robert Mackowiak was reassigned
from swing shift to day shift and was given duties, including
inspection and control of weld rod, which he considered not
to be commensurate with his qualifications, experience or job
level. Mr. Mackowiak's counseling statement was withdrawn
after 30 days.
There was considerable conflict in the testimony about
incidents involving Robert Mackowiak which occurred during
the fall and winter of 1981-82. The Quality Control manager
said Mr. Mackowiak challenged everything he was told by management;
he always thought he was right. Mr. Mackowiak says he was
trying to implement the NRC regulations and inspect for
conformance to engineering plans and specifications. Other employees
also testified that Mr. Mackowiak was arrogant, unreasonable
and could not get along with craft workers and some inspectors.
The Q.C. manager said Mr. Mackowiak once refused an assignment;
Mr. Mackowiak denies ever having refused an assignment, but
did complain on one occasion that he could not do a thorough
inspection job without scaffolding. The Q.C. manager testified
Mr. Mackowiak took a memo down from the wall and tore it up,
saying "they can't do that." Mr. Mackowiak says he never
did that, though he has replaced memos with updates.
For the last several months of his employment with UNSI,
there was a recurring dispute about Mr. Mackowiak getting access
to the weld rod ovens located in the tool cribs to carry out
regular inspection of the weld rods. Q.C. inspectors at first
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were not given the keys or the combination to locks on the
tool crib and the locks and combinations were changed often.
After writing a QCRFI on the problem, Mr. Mackowiak had no
trouble for a month or so when, on January 8, 1982, he found
the locks had been changed again. Mr. Mackowiak put a red
tag on the tool crib, which he removed 15 minutes later when
he was told he had no authority to do so. He testified this
only had the effect of preventing access to the weld rod oven,
not to the tool crib.
From management's point of view, as the Q.C. manager put
it, Mr. Mackowiak "overreacted" to this incident. The
Assistant Quality Control manager explained that it was necessary
to lock the tool cribs to keep control of the weld rod filler
material. Tool crib attendants occasionally had to leave,
for example, to go to the bathroom. Robert Mackowiak said
he would not wait for the attendant to return; he reportedly
told the tool crib attendant he would red tag the tool crib
if he ever caught the attendant away again. Other management
employees testified that Mr. Mackowiak had said to employees
responsible for control of weld rods "I caught you screwing
up again."
At one point during his year of employment with UNSI,
Mr. Mackowiak was asked by management to take a class to become
a certified liquid penetrant weld inspector. He took the class
for a week after work on his own time, but his certification
was revoked when it was learned that the instructor had not
been qualified to teach the class. Mr. Mackowiak wrote a memo
to the Q.C. manager complaining that his time had been wasted
by being required to take the course. He expected to obtain
a certification useful in finding other jobs. The Q.C. manager
explained to him that the certification would not have been
transferable and was limited to one method used by UNSI.
On one occasion, someone else was promoted to a supervisory
job Mr. Mackowiak thought he should have been considered for,
and he wrote a memo to the Q.C. manager to find out why he
was not considered. The Q.C. manager viewed the memo as a
demand for a justification of the promotion, even though, under
the collective bargaining agreement, management has the prerogative
to make selections for supervisory positions.
Several Q.C. inspectors, including Mr. Mackowiak and his
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wife, complained that it took inordinately long periods of
time to get a response to a Quality Control Request for
Information, sometimes as much as three to six months. The NRC
confirmed that this was a problem in its investigation. There
was also some testimony that UNSI discouraged its Q.C. inspectors
from raising questions about work quality or conformity
to specifications, and ignored their findings of nonconformity.
Virginia Robbins testified she was told not to ask too many
questions and was ignored when she recommended firing or
transferring a welder whose work she repeatedly found incompetent.
A Q.C. Inspector who was hired only four days before Mr.
Mackowiak was fired, and who was also a certified welding
inspector, testified he also was told not to ask too many questions
after a meeting at which he spoke up frequently. He thought
his relationship with management became more "abrasive" after
that incident. He also felt that other inspectors accepted
work which had errors in it; once when he refused to accept
a weld, another inspector did without inspecting it. He was.
laid off in a RIF in May 1982 because he was low in seniority,
even though a more senior inspector offered to take his place
on the list because the senior man was moving out of the area.
About a week before Mr. Mackowiak was laid off on
January 29, 1982 Bechtel had informed UNSI that they had to lay
off about 7-8 percent of their workforce. Four Quality Control
Inspectors had to be laid off; three were chosen on the basis
of seniority, and Mr. Mackowiak was chosen because he was
considered lower in ability than other less senior inspectors
as a result of his attitude problems. UNSI had made a request
to the union for a Level 2 Q.C. Inspector on January la, 1982
but that was before being notified by Bechtel of the RIF.
UNSI began hiring Q.C. inspectors again in the middle of March
1982 because the workload had increased substantially.
DISCUSSION
Since the employer's intent is at the heart of a whistleblower
case, one threshhold question is whether the employer
knew the employee had engaged in some protected conduct. Another
predicate to a whistleblower complaint is whether the complainant's
particular conduct is protected under the statute. Here, the
ALJ indicated that retaliatory motive could not imputed to
UNSI because they did not even know that Mr. Mackowiak had
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spoken to NRC investigators. However, there was some evidence
that UNSI did know Mr. Mackowiak was in contact with the NRC
investigators; one of them testified that he had told the Q.C.
manager, in response to a direct question, that Mr. Mackowiak
was involved in the investigation. The ALJ viewed this as
no more than part of the NRC's notification to UNSI that there
were problems on the swing shift. But it did specifically
identify Mr. Mackowiak as an employee assisting the NRC in
its investigation.
In any event, Mr. Mackowiak engaged in other activities
which I hold are protected under the ERA. In an analogous
case under the whistleblower provision of the Federal Mine
Safety and Health Act, the District of Columbia Circuit held
that a miner is protected from retaliation for notifying his
foreman or the union safety committeeman of possible safety
violations, even though he never contacted federal mine inspectors.
Phillips v. Department of Interior Board of Mine Appeals, 500 F.2d 772 (1974).
Complainant in Phillips had made numerous complaints about safety conditions in the
mine. He was fired when he refused an order to return to work until a piece of
safety equipment was repaired. The court framed the issue
as follows:
"...we must determine whether a miner brings
himself under the coverage of the Act by
reporting safety violations to his foreman
and Mine Safety Committee, or whether he
must formally notify the Secretary of Interior
or his authorized representative before he
is protected. We believe the answer is clear:
given the mine's procedures regarding safety
complaints, the coverage of the Act begins
when the miner notifies his foreman and/or
safety committeman of possible safety
violations." 500 F.2d 772, 778.
Protection of miners who raise safety questions through the
company's internal safety system, the court said, flows from
the "overall remedial purpose of the statute" and is supported
by the legislative history of the Act. Miners are in the best
position to observe safety problems, whereas federal
inspections are infrequent and, because of limited resources, often
not thorough enough. Thus, internal notification of safety
problems "is an essential preliminary stage in both the
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notification to the Secretary (A) and the institution of procedures
(B) and consequently brings the protection of the Safety Act
into play." 500 F.2d at 779 (referring to subsections in the
Mine Safety Act whistleblower provision).
In other cases following Phillips, the D.C. Circuit has
expanded on the rationale for protecting miners who only raise
safety questions internally and have no intention of contacting
federal officials. Such protection fosters resolution of safety
problems at the company level, and promotes the reporting of
safety violations and safety, the ultimate goal of the Act.
Baker v. U.S. Dept. of Interior Board of Mine Appeals, 595
F.2d 746 (D.C. Cir. 1978). Under the ERA, where the whistleblower
section is modeled in part on the federal mine health
and safety law (see S. Rep. No. 95-848, reprinted in 1978 U.S.
Code Cong. and Admin. News 7303) nuclear power plant
contractors are required to employ quality control inspectors whose
very job it is to raise safety concerns wherever and whenever
they are found. 10 CFR Part 50, Appendix B. Protection of
such employees for purely internal safety activities flows
a fortiori from the rationale in Phillips and other mine safety
cases.
Evidence in a whistleblower case under section 5851 of
the ERA should be analyzed and evaluated in accordance with
the principles set forth,by the Supreme Court for proof of
intentional discrimination in Texas Department of Community
Affairs v. Burdine, 450 U.S. 248 (1981) and Mt. Healthy City
School District v. Doyle, 429 U.S. 274 (1977). (See Consolidated
Edison Company of New York v. Donovan, 673 F.2d 61 (2nd Cir.
1982) and my recent decision in Dean Dartey v. Zack Company
of Chicago, 82 ERA 2 (copy attached), for a complete discussion
of the application of Burdine and Mt. Healthy to cases arising
under 29 CFR Part 24.). In some respects, the ALJ's decision
indicates a finding on his part that Mr. Mackowiak did not
even meet his initial burden under Burdine of presenting evidence
of a retaliatory motive sufficient to shift the burden of
production to UNSI to articulate legitimate, non-discriminatory
reasons for his discharge. If Mr. Mackowiak did present evidence
which would be a sufficient prima facie case under Burdine,
the ALJ also appears to have held that UNSI met its burden
of production.
The ALJ also explicitly held that "this case is not a
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'dual motive' discharge." Rec. Dec. p. 3. That conclusion
seems to be based substantially on his finding that the only
protected conduct here was Mr. Mackowiak's contacts with the
NRC of which UNSI was unaware. Since I have held that internal
reports of safety or quality problems are also protected
activities under section 5851, the ALJ's conclusion that "protected
conduct was not a motivating factor in the employer's decision
to terminate" is called into question. There is some evidence
in the record which would support an inference that UNSI was
motivated at least in part by Mr. Mackowiak's protected
conduct. On the same day as the NRC exit interview Mr. Mackowiak
and Virginia Robbins, Mr. Makowiak's supervisor who also had
been raising safety questions, were both given counseling
statements about their negative attitude. Ms. Robbins was relieved
of her supervisory duties, and both she and Mr. Mackowiak were
reassigned from swing shift to day shift. Mr. Mackowiak was
given less desirable duties on day shift. There was testimony
that UNSI discouraged its inspectors from asking too many questions and put pressure on those
who did. Mr. Mackowiak, of course, was quite persistent in raising safety and quality
questions.
However, even assuming Mr. Makowiak has proven by a
preponderance of the evidence that retaliation for reporting safety
or quality problems internally was at least a motivating factor
when UNSI chose him for a RIF, I must defer to Judge Burch's
evaluation of the evidence. As the trier of fact who presided
at the hearing, he had an opportunity to hear and observe the
17 witnesses and concluded "In the view of UNS complainant
was not substantially equal [to less senior inspectors] because
of his attitudinal problems." (Dec. p. 4.) There was a
substantial amount of testimony from fellow workers, as well as
management officials, about Mr. Mackowiak's abrasive, stubborn,
at times disruptive, approach to his job. The form of his
protected activities infringed a legitimate interest of UNSI.
Hochstadt v. Worcester Foundation for Experimental Biology,
545 F.2d 222 (1st Cir. 1976; Novotny v. Great American Federal
Savings and Loan Association, 584 F.2d 1235 (3rd Cir. 1978).
Under section 5851 as well as under Title VII "... an employee
[cannot] invoke the protection of [the statute] ... for conduct
aimed at achieving even proper objectives through the use of
improper means..." Hochstadt, supra, 545 F.2d 222, 231. In
other words, UNSI carried its burden of proof that Robert Mackowiak
would have been discharged even if he had not engaged in protected conduct. Con Ed v.
Donovan, supra.
