WESTERN CONCRETE
STRUCTURES, INC.,
Employer/Respondent
FINAL DECISION AND ORDER
Administrative Law Judge Alfred Lindeman submitted a recommended
decision and order to me in this case arising under the
employee protection provision of the Energy Reorganization Act
of 1974, as amended (42 USC 5851) (ERA or the Act). A hearing
was held on April 5 and 6, 1983 on a complaint filed by Thomas
J. Hick that he had been fired by respondent, Western Concrete
Structures, Inc., because of certain protected activities.
The ALJ recommended that the respondent be found not to
have violated the ERA. The ALJ found that the respondent had
fired complainant not because of activities protected under the
Act, but rather, because complainant's performance did not
meet the standards of his new supervisor.
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Western Concrete Structures, Inc. (Western or the employer)
is a subcontractor to the Bechtel Power Corporation at the Palo
Verde Nuclear Power Project. Western provided "post-tensioning"
-- the stressing of cables in concrete after a "pour." It hired
types of employees at the job site: production personnel;
and quality control inspectors and supervisors. The quality
control personnel were to assure that Western complied with
its internal quality control manual. The manual in turn was
to satisfy the quality control requirements of the contractor,
Bechtel; the Arizona Public Service Agency, the authorities
responsible for overseeing compliance with nuclear reactor installations;
and the Nuclear Regulatory Commission.
Complainant was a quality control inspector. After being
promoted to field quality control supervisor, he supervised
two other quality control inspectors. Inspectors observed the
calibration of gauges, the greasing of tendons, and other aspects
of construction. Much of the work involved documentation of
the construction procedures.
Complainant had been performing adequately under the standards
of quality assurance manager Robert Jacobson. But once Jacobson
resigned, Allan Stubbs, Western's president, took over his
responsibilities and made periodic "on-site" visits to complainant's
job site. During these visits Stubbs became aware of alleged inadequate
quality control procedures on the part of complainant.
Stubbs testified, for example, that complainant was not writing
reports correctly; was not reporting facts; and was drawing
conclusions -- really the job of the engineers (tr. 201-202).
Complainant argued that he was fired because of the protected
activity of reporting to the Arizona Public Service Agency (APS)
problems he was having with production superintendent Ken Guffey.
He testified that Guffey told him that he (Guffey) was "production-
oriented" and was going "to cut corners any way he could." He
said Guffey violated prescribed procedures by, for example, using
the wrong gauge to measure the stress of tendons, not properly
greasing them, or installing them out of sequence.
The only evidence that tends to support complainant's claim
that he was fired because of his protected activities is that
Guffey knew in January or February 1982 of complainant's contacts
with APS before he was fired in March 1982. While knowledge and
the termination here are not immediately connected in time,
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they are close. The remainder of the evidence points to the
conclusion that the complainant's termination was not related
to his contacts with APS.
The record bears no evidence of the employer discouraging
complainant from "working closely" with APS. No testimony was
elicited from APS representatives Dennis Fowler and Ray Douglas
Forrester that complainant was discouraged from contacting them.
Moreover, an absence of bad faith is shown in that Guffey --
in spite of a history of "butting heads" with complainant --
recommended him for a position under his replacement. (tr. 77)
(Stubbs, however, thought it unwise and selected another person
for this job.)
I credit the testimony of Pamela K. Donigan, complainant's
successor. Her uncontroverted testimony was that she was given
no instructions or advice on how to deal with Guffey. In other
words, she was free to work closely with APS, if necessary, just
as complainant had done.
The evidence clearly discloses that Stubbs wanted stricter
quality control at the Palo Verde project, and felt that complainant
-- due largely to his apparent inadequate training under
former supervisor Jacobson -- could not meet those standards.
I agree fully with the ALJ's finding that complainant was
not discharged because of his protected activities -- his contacts
with APS. Complainant failed to present prima facie case of
discrimination, i.e., that there was a causal link between his
protected activity and his termination. As such, the burden
did not shift to the employer to articulate a legitimate, non-
discriminatory reason for the firing, Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 243 (1981).
Therefore, it is ORDERED, that the complaint in this matter
be denied.