Office of Administrative Law Judges 36 E. 7th Street, Suite 2525 Cincinnati, OH 45202
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Issue date: 21Jun2002
CASE No.: 2001-ERA-21
DOUGLAS JONES,
Complainant,
v.
UNITED STATES ENRICHMENT
CORPORATION INCORPORATED,
Respondent.
Appearances:
John Frith Stewart, Esq.
Louisville, Kentucky
For the Complainant
Mark C. Withrow, Esq.
Paducah, Kentucky
and
David M. Thompson, Esq.
Paducah, Kentucky
For the Respondent
Before: THOMAS F. PHALEN, JR.
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
AND PRELIMINARY ORDER
This proceeding arises under the employee protection provisions of the Energy Reorganization Act ["ERA"], 42 U.S.C. Section 5851. The implementing regulations that govern this matter appear at 29 C.F.R. Part 24.1-9. Such provisions protect employees from discrimination for attempting to carry out the purposes of the environmental statutes of which they are a part, and specifically for preventing employees from being retaliated against with regard to the terms and conditions of their employment for filing "whistleblower" complaints or for taking other action relating to the fulfillment of environmental health and safety or other requirements of these statutes. The hearing, and this decision and order, are also governed by those provisions, and the provisions of 29 C.F.R. Part 18.
1References to the exhibits of the Administrative Law Judge, and the Joint, Complainant and Respondent exhibits, and to the official transcript will be designated, "ALJX", "JX", "CX", "RX" and "T" with the exhibit or page number following the designation.
2In October of 1997, the company "Privatized" and USEC took over as a private, publicly held, company. The biggest change was the accountability and how it worked, which was formerly to the government and then being a company in business for itself, accountable to the shareholders. The biggest change was managing the budget to a private business, to maximize the company's value to the shareholders.
3Russ Starkey testified that he had a Physics degree from Miami of Ohio, with graduate work at the University of New Haven, Connecticut and North Carolina State toward an unfinished MBA. He also trained in the Navy Nuclear Power and Nuclear Weapons Programs, and started work at the USEC Gaseous Diffusion Plant in October of 1997, when it was under the control of Lockheed Martin Utility Services for the U.S. Government and the Department of Energy. Initially, he was hired as a general consultant to the General Manager, Steve Polston, performing on several projects, and then running the training department from April of 1998 to April of 1999.
4Before his employment at USEC, Ron Fowler was a Nuclear Consultant from 1969 - 1991, beginning his employment there on December 9, 1991 as a Trainer in Health Physics (Radiological Protection). At the time of his deposition on August 23, 2001, he was Group Manager of Production Support and Compliance Training for OSHA, EPA and NRC regulations. He supervised the MIE/PIYT training program from 1997 or 1998 through the Winter of 2000, where he supervised Mr. Jones for four months from the end of 1999 through the end of the winter 2000. (JX 2)
5Mr. Bucy was employed at the Paducah Gaseous Difusion Plant in 1968 when it was operated for the U.S. Government by Union Carbide, and has been there ever since. He was a Technical Trainer before that, in which he developed training material for electricians, since he had previously had an electrical background. As Group Manager, he became the manager of the trainers about three years before the hearing, and was assigned the commitment tracking system for them. Mr. Bucy gave a deposition, which was admitted into evidence as a joint exhibit, in lieu of testimony at the hearing. (JX 1)
6Although this was an inaccurate statement regarding not being able to operate any of the MIE equipment, when he had received instruction in prior years on the operation of forklifts, and he had received some other instructor training in another area other than MIE, I find that these exposures were early in his career long before his transfer; that there is no evidence that he actually operated forklifts or any MIE to any extent; that this was not sufficient training for the operation of overhead cranes and the UF6 cylinder haulers, and that was certainly insufficient to train him as a "trainer" on all of this MIE equipment. While it did raise an issue on his credibility as a witness, it did not affect my final determination on the merits of the issues leading to his layoff that he was a credible witness .
7Mr. Jones testified that after Mr. Henderson had retired, Henderson and Jones had a meeting with Mr. Fowler, and Henderson stated that, "the program was in disarray and he said there's no way one person could fix that program by themselves..." (T 174) This remained undenied by management witnesses.
8The ATR program, Mr. Starkey testified, is a corrective action program, in which problems in the plant are identified, formally documented, and subject to a procedural follow-through by developing action plans, completing them, and creating conditions so that the problems do not reoccur. Mr. Jones confirmed that Messrs. Starkey and Fowler never directly criticized him for filing ATRs, and, in fact on occasions, encouraged him to write them.
9Another ATR filed by Mr. Jones on December 9, 1999, (CX 26, No. 28) noted management's direction that he file it, which he confirmed in his testimony, and concerned, first, the fact that there was no plan approved for OSHA compliant forklifts or other PIT training modules, and second it concerned overhead crane problems. This was an ongoing issue that he originally identified and documented in ATRC 994940, his original one discussed above.
10When asked by the undersigned whether it was not the case that all other procedures other than SAT procedures would be considered non-SAT procedures, Respondent's attorney stated that in the face of the statement that there were no non-SAT procedures, he would establish that there were some procedures in effect to help write a training module and present courses in the non-SAT area. That may be so in a general sense, but after hearing all of the evidence, I credit Mr. Jones' testimony that there were, in fact no designated non-SAT procedures in effect at the plant concerning the PIT/MEI modules that he had been directed to create. While somewhat of an ingenious theory, I find it disingenuous to conclude that a collection of possible procedures constituted a "non-SAT procedure." Therefore, I have concluded that no such procedure existed, and "that the only procedures available were all SAT related," as testified by Mr. Jones.
11Mr. Gregory worked at the plant for 27 years. There is no other background, educational or employment information on the record before his employment at USEC.
12In addition, Gregory verified Jones' OSHA research, but could not recall some of the details of the Bucy matters.
13Mr. Jones testified that the term "action plan" is "a list of sequential steps put together to solve some problem and reach some kind of end or conclusion "; that he was asked to prepare an action plan but could not recall specifically whether it was for revising the PIT training module or fixing the whole training program, that he was assigned the PIT training module in May 1999, and was expected to provide an action plan for it. He did know how to form an action plan, at that time.
14I was somewhat confused by some of Mr. Gregory's testimony. He appeared very definite on his own background and job, and quite satisfied about a number of activities when dealing directly with Mr. Jones. However, he became quite vague, and unable to recall specifics, when it came to verifying the problem areas between Jones, Snow and Bucy. For this reason, I do give his deposition testimony limited weight.
15"Inane" - "without sense or substance." (Webster's II, New Revised University Dictionary.) As applied to the subject that Mr. Jones had raised, I agree that the reply was "inane." At the very least, it is an indication that his legitimate e-mail on the lack of regulatory compliance of the overhead crane modules with the OSHA regulations was not being taken seriously.
16Not January 12, 1999, February 7, 1999 or February 8, 1999, as incorrectly stated in the transcript. (T 98)
17This followed a conversation with Bucy in which Jones discussed his understanding with Starkey that he had directed Fowler to insure that he and Jones completed performance plan discussed above. Bucy told Jones that he had discussed it with his staff, which Jones questioned as contrary to what Fowler had told him, since the "performance improvement plan and commitment" (PIPC) was not supposed have been an "official" PIPC , but rather was being used to give him a plan on the suggested changes.
18Although I stated at the hearing that I would only give limited value or weight to this document due to its lack of completion, (CX 24-4) I do take note that it was used or referenced in its incomplete form in the discussions with Mr. Wetherell as a basis for what they talked about, rather than for the fact of what they ultimately agreed to do or not to do, and is given some weight due to that fact alone.
19The document does not appear as a numbered exhibit. However, the uncontradicted quotes from it drew no objections from the Respondent's attorney and he later confirmed the document's inclusion in a package provided to Complainant's attorney prior to the hearing. The quotes are, therefore, accepted as presented into evidence, and given the appropriate weight.
20Review and approvals of the module appear throughout by Messrs. Riddle, Booker, Bucy, Potter, Reed, Perry (#2) and Booker (#2) on the dates of April 7, 13, 17, 27, and 10, 2000, May 3, 2000, April 27, and April 13, respectively. ) A later Training Module Approval Sheet submitted by Mr. Craven on June 16, 2000, and reviewed and approved by others thereafter in a manner similar to Mr. Jones, there were specific references to the nuclear safety and handling requirements and training specific to the site. (CX 17)
21I find that these ATR's all involved written reports by Mr. Jones concerning the safety and health of both the employees of USEC, and ultimately of the public, and constituted protected activity under the provisions of the ERA.
23Mr. Starkey verified that there was no way that Mr. Jones could have known that he was in the IRIF pool, and could produce no documentation that Jones was in the pool in 1999.
24See, ALJ's comment in Niedxielski v. Baltimore Electric, Co., 2000-ERA-4 (July 13, 2000), to the effect that, "working through the prima facie case is useful since the ultimate burden of proof still involves many of the elements covered in the prima facie analysis...."
25This is a military term relating to the place where it's ground transportation and work vehicles are stored and maintained. It is differentiated from the location of the military equipment used in it's "operations" or the military mission of the base, i.e., aircraft, helicopter, ships, etc.
26See, NRC proposed revised UF6 Transportation Safety Standards, (Compatibility With IAEA Transportation Safety Standards (TS-R-1) and Other Transportation Safety Amendments; Proposed Rule, 10 CFR Part 71, comment period closing July 29, 2002.) Federal Register: April 30, 2002 (Volume 67, Number 83), Page 21389-21484. The statistics involving accidents in the transportation of UF6 were derived from the comments on the proposed rule as above published.
27 The Clean Air Act ["CAA"], 42 U.S.C. Section 7622 (a); the Comprehensive Environmental Response, Compensation and Liability Act ["CERCLA"], 42 U.S.C. Section 9610; the Federal Water Pollution Prevention and Control Act ["FWPCA"], 33 U.S.C. Section 1367; the Safe Drinking Water Act, ["SDWA"], or Public Health Service Act ["PHSA"], 42 U.S.C. Section 300j-9; the Solid Waste Disposal Act ["SWDA"], 42 U.S.C. Section 6971; the Surface Transportation Assistance Act, 49 U.S.C. Section 31105; and the Toxic Substances Control Act [ "TSCA"], 15 U.S.C. Section 2622.