U.S. Department of Labor Administrative Review Board
200 Constitution Ave, NW
Washington, DC 20210
ARB CASE NO. 98-002
(ALJ CASE NO. 97-ERA-031)
DATE: April 15, 1999
In the Matter of:
TED ELTZROTH,
COMPLAINANT,
v.
AMERSHAM MEDI-PHYSICS, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant: Ted Eltzroth, Pro Se
For the Respondent: Alan King, Esq., Gardner, Carton & Douglas, Chicago,
Illinois
FINAL DECISION AND ORDER
This case arises under Section 211, the employee protection provision of
the Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C. §5851 (1994), and
the regulations promulgated thereunder at 29 C.F.R. Part 24.1 Complainant Ted Eltzroth (Eltzroth)
[Page 2]
As to both protected activities, the ALJ concluded that Eltzroth satisfied
the elements necessary for establishing a prima facie case of retaliatory action by his
employer: (1) that Eltzroth engaged in protected activity; (2) that Respondent was aware of
Eltzroth's protected activity; (3) that Respondent effected an "adverse act" upon
Eltzroth; and (4) that Eltzroth "presented evidence sufficient to raise the inference that the
adverse action occurred as a result of his protected activity." R. D. & O. at 11-12.
The ALJ then turned to the ultimate question of whether Eltzroth
"proved by a preponderance of the evidence that retaliation was a motivating factor in the
adverse action." R. D. & O. at 12.3 The ALJ examined the record to determine whether the Respondent had
produced any evidence of a legitimate, nondiscriminatory reason for the adverse action against
Eltzroth, concluding that Respondent produced evidence sufficient to find that Eltzroth was not
terminated for having raised safety concerns with his employer, but for refusing to perform the
work for which he was hired. R. D. & O. at 13-15. The majority opinion joins the ALJ in both
of these conclusions, explaining that although Eltzroth's refusal to work was protected initially,
the protection was subsequently lost.
[Page 12]
I agree that Eltzroth was not fired for raising safety concerns, and thus I
agree with the majority's resolution of the first of the foregoing issues. I also agree that Eltzroth
was fired for refusing to perform the work for which he was hired. However, I do not
agree that this work refusal, which was based upon Eltzroth's reasonable belief of the existence
of an unsafe working condition, lost its protected nature under the ERA. Thus, I would hold for
Eltzroth in this regard, and therefore dissent from the majority opinion.
DISCUSSION
In Pensyl v. Catalytic, Inc., 83-ERA-2, Sec'y D. & O. (Jan.
13, 1984), the Secretary of Labor articulated the protection to be afforded an employee under
the ERA where the employee refuses to work because of his or her belief that working
conditions are unsafe or unhealthful. In such circumstances, where the employee's belief is
found to be reasonable and raised in good faith, the refusal to work is considered protected
activity unless and until "the perceived hazard has been investigated by responsible
management officials and government inspectors, if appropriate, and if found safe,
adequately explained to the employee." Pensyl, slip op. at 6-7.
A. The Nature of Eltzroth's Concern
Eltzroth had two basic concerns about his work: (1) the actual
radiation doses emanating from the I-125 seeds, and (2) actual exposure levels resulting to
his unshielded forearms. Tr. 29. Having been trained on the seed inspection procedure,
Eltzroth initiated his seed inspection by first inserting a radiation detection device into his
glove, concluding by so doing that "there was little to no protection from the
glove." Tr. 12. Immediately upon bringing his concern to the attention of the
individual who had trained him in the seed inspection procedure, Judy Graney, they used
another pair of gloves, performed the same test, and found that the second pair had "no
effect either." Id. Stated Eltzroth: "So, that was the nature of the
problem that led me to question the process. I wanted to know exactly what the radiation
rates from the sample were at that point." Id. Eltzroth further
testified that at the time he also asked Graney, "what is the amount of radiation off this
source? And well, obviously Judy didn't know. . . . She referred me to the radiation safety
officer, Ed Zdunek." Tr. 13.
[Page 13]
At his meeting the next day with Mr. Zdunek, Eltzroth told him that
he "had done some preliminary calculations the night before and found that the rates
were pretty significant off this source. And I had asked [Zdunek] if he knew what the actual
numbers were and how to get those results." Tr. 13.
Eltzroth subsequently met with his supervisor, Ray Wronkiewicz.
They returned to the work site and laid eight pair of gloves on top of radiation monitor.
Eltzroth described the covering of gloves as having "little or no effect" and
confirming "what I thought was . . . the radiation rates were too high from there."
Tr. 14.
As Eltzroth explained to the ALJ, he was concerned "that the
amount of radiation to an unexposed [sic] body part in the field is going to exceed federal
limits in very short order." He was especially concerned about the exposure levels to
his unshielded forearms. Tr. 29.
The ALJ concluded that Eltzroth's belief that his working conditions were
unsafe was reasonable and raised in good faith.4 In support thereof, the ALJ cited: (1) "the tenor of complainant's
testimony," (2) the fact that Respondent's safety officer, Zdunek, "believed
complainant to have been genuinely concerned about the issue," (3) "the brief one-day training [Eltzroth] had undergone," (4) "the paucity of [Eltzroth's]
experience" at that point, (5) "the measurement of the radiation detector," (6)
the reaction of Graney (Respondent's employee who trained Eltzroth), which the ALJ felt
"lends credence to the reasonableness of [Eltzroth's] belief as to the presence of a
hazardous condition," and (7) Eltzroth's supervisor's reaction, which the ALJ felt similarly
supported the legitimacy of Eltzroth's concern. R. D. & O. pp. 10-11.
I find nothing in the record that contradicts or undermines the ALJ's
conclusion regarding Eltzroth's concerns.5 Indeed, further examination of the record regarding the potential
radiation hazard posed by the I-125 seeds lends even greater support to the ALJ's findings and
conclusion on this point. Eltzroth's concerns about the radiation field generated by the seeds
primarily focused on the radiation resulting from a tray of 80 seeds,6 which Eltzroth calculated
generated a radiation field of approximately 1.4 rads per hour. Tr. 16.7 Eltzroth was also concerned
about the accuracy of the film badge
[Page 14]
dosimeters that were used to monitor the workers, thus leading to his testing the radiation field
by placing the radiation monitor in his glove.8
As to whether the worker's bared forearms would or could be subjected
to the radiation field generated by the I-125 seeds, Zdunek stated that "the hands are the
parts of the body that are constantly in the radiation field, not the forearm," and that the
farther removed from the source, the less the exposure. Yet, Zdunek acknowledged that the
forearm would periodically cross over or through the radiation field during the process of
examination and testing (Tr. 76, 80) and that, as a result, an employee's forearm could receive
a radiation dose of 100 millirem in a 15 minute period, depending on the number of I-125 seeds
in the tray. Tr. 90.9
In defense, Respondent's officials repeatedly, throughout the hearing
before the ALJ, asserted that the higher doses were not a concern because the proper and normal
I-125 inspection entailed the examination of not more than 30 seeds at any one time.
Respondent's safety officer described Eltzroth's job as examining 10 to 30 seeds. Tr. 49. Asked
later in the hearing to describe the standard inspection procedure, Zdunek again stated,
"The procedure taught to people is to pour out ten to 30 seeds." Tr. 73.
Wronkiewicz also testified that, "at any one time, we generally inspect ten to 30
seeds." Tr. 125.10
In my view, Respondent's testimony at hearing before the ALJ concerning
"standard operating procedure" was less than candid. Eltzroth testified that at the
time of his initial instruction, Graney (his trainer on the seeds inspection process) had mentioned
to him that the measurement and inspection of 10 to 30 seeds at a time was "an
alternative" process, rather than "typical." Tr. 39. A "memo to
file" by Graney, attached as part of Respondent's Exhibit 3, corroborates Eltzroth's
testimony in this regard. Graney explained in her memo the application of "Mil. Std.
Testing" as it pertained to the I-125 seed inspection that Eltzroth was to undertake:
"Reduced testing," Graney's memo states, consists of 32 seeds per lot. Graney's
memo notes that on the first day of training, after having run a test with only 32 seeds,
"this lot failed the diameter spec which meant the next 10 lots had to be under normal
inspection (80 seeds per lot accept 0 reject 1)." Graney's memo to file, at
Respondent's Exhibit 3 (emphasis added). In the afternoon, Graney's memo continues,
Eltzroth proceeded to test the next batch -- consisting again of 80 seeds. It was at this time that
Eltzroth placed a radiation monitor in the glove, getting a reading of "500 cpm at 1000X
setting." When Eltzroth showed this to Graney, according to her memo, she used a
different pair of gloves, and got the same result. Id. The memo concludes by noting
that Graney then tested two more lots of 80 seeds each before they called it quits for the
day.11
[Page 15]
The foregoing demonstrates that Eltzroth's rad-safe concerns based on the
more intense radiation field generated by I-125 inspection runs of 80 seeds was justified.12 Moreover, because
Respondent's sole means of determining dose to Eltzroth's bared forearms was a ring film
badge, which not only was worn under a protective glove but could not be interpreted absent
sending it out to another company for a delayed reading, Tr. 53, it was quite reasonable for
Eltzroth to have sought a "second opinion" regarding actual radiation levels by
inserting the radiation monitor into his glove. It was even more reasonable of Eltzroth to
subsequently insist upon some form of interpretative investigation by management of the
radiation levels into which he was placing his unprotected arms, particularly after he had done
his own admittedly rough, yet relatively reasonable,13 dose calculations.
B. Whether the Reasonableness of Eltzroth's Concern was Lost?
The majority concludes that Eltzroth's refusal to work lost its protected
status when, as Wronkiewicz testified, Eltzroth subsequently demanded a "zero radiation
exposure" environment in which to work. I have difficulty with the majority's conclusion
in this regard for at least two reasons.
First, I am not as convinced as is the majority that the record supports a
finding that Eltzroth demanded "zero exposure." Respondent's claim is that
Eltzroth's employment was terminated because he unjustifiably refused to perform an essential
function of his job. Tr. 7. Wronkiewicz (Eltzroth's supervisor) testified that by the third day
of his employment and just prior to terminating him, Eltzroth informed him that, in order to
continue to work on the assigned job, "He wanted his exposure reduced to zero."
Tr. 128. See also Wronkiewicz's Activity Report, at Respondent's Exhibit 3. Eltzroth
acknowledged that had he gone ahead and performed the seeds inspection work, he would not
have been fired. Tr. 38. However, he disagreed with the contention that he was fired for refusal
to perform the work. Tr. 34. In his opening testimony to the ALJ, Eltzroth stated, "I
refused to perform an unsafe function." Tr. 31. Similarly, in his closing presentation to
the ALJ, Eltzroth argued, "[T]his isn't an issue of me not wanting to do the job, Your
Honor. It was a genuine concern about the safety issues." Tr. 133.
Indeed, Respondent's acknowledgment of Eltzroth's several requests for
more time to "think about it" (when pressed for an answer as to whether he would
do the work or not), would seem to discount Respondent's contention that Eltzroth would only
[Page 16]
work if the task could be undertaken in a "zero exposure" environment. For
example, Wronkiewicz acknowledged that on the third day of his employment (the day Eltzroth
was terminated), "he [Eltzroth] said he wanted to think about it overnight again" in
response to the supervisor's question as to what Eltzroth had finally decided. Tr. 127. Although
the supervisor testified that he did not recall Eltzroth asking for the additional time in order to
verify his radiation calculations before making his decision (as Eltzroth had testified), the
supervisor nonetheless testified that he did recall Eltzroth stating that he wanted more time
"to think about it." Tr. 131.14
Yet even if the record can be said to support the finding that Eltzroth
ultimately demanded a "zero exposure" working environment, I do not construe
Pensyl v. Catalytic, Inc. to mean that Eltzroth's "demand," occurring when
it is reported to have been made, necessarily negated the protection afforded his refusal to work
by the ERA. I am of the opinion, based on my review of the record as a whole, that Eltzroth's
"demand" was little more than an after-the-fact expression of frustration resulting
from his inability to get straight answers from his employer to legitimate and straight-forward
safety concerns that had been raised in good faith.
C. The Adequacy of Amersham's Response to Eltzroth's Concerns
A thorough analysis of the record, in light of Pensyl and
subsequent Secretarial and ARB decisions, leads to the inescapable conclusion that, as a matter
of law, Eltzroth was wrongfully terminated in violation of the protections afforded under Section
211 of the ERA.
(1) Amersham's Response
Management's initial response to Eltzroth's concern was one of
surprise. Eltzroth testified that, "[Judy Graney] was surprised that the glove had not
protected - or had not shielded the radiation." Tr. 12. When a subsequent "eight-glove" coverup of the radiation monitor was attempted by Eltzroth's supervisor (in an
apparent test of the effectiveness of the protective gloves) and failed, Eltzroth testified that
his supervisor stated, "you know, that was kind of interesting." Tr. 14.
Eltzroth testified that at the meeting with Respondent's safety officer,
Zdunek "explained to me what their process was - for monitoring the radioactivity of
the sources and the exposure to their people. . . . I had done some preliminary calculations
the night before and found that the rates were pretty significant off this source. And I had
asked him if he knew what the actual numbers were and how to get those results. And he had
[Page 17]
said that they don't do it that way. They use badges - nuclear emulsion badges to monitor
the exposure." Tr. 13. Zdunek offered to show Eltzroth historical data, but Eltzroth
stated he was not interested, that he "wanted to verify my numbers with a more
qualified source to make the calculation." Id.
Zdunek gave a similar account of this meeting. According to the safety
officer, upon meeting with Eltzroth they discussed possible use of heavier leaded gloves,
which Zdunek explained was not possible. Zdunek "explained the regulatory agencies,
their limits, the Amersham limits and the ALARA limits." Tr. 66-68. Zdunek also
mentioned that he talked to Eltzroth "a little bit about the instrumentation" that
Eltzroth had used to determine radiation exposure.15 Finally, Zdunek
mentioned the NCRP and ICRP limits, and how Amersham was in compliance therewith.
Id. Zdunek testified that his hope was to get Eltzroth to understand that they had
"appropriate means in place to protect the individual from exposure to radiation"
which could be monitored. Tr. 69. See also Zdunek's "Memo to File,"
at Respondent's Exhibit 3.16
Eltzroth subsequently met with Wronkiewicz. Together they went
back to the work site. As previously mentioned, they laid eight pair of gloves on top of the
radiation monitor, "to little or no effect" according to Eltzroth. Tr.14.
Concerning his discussion at this time with Eltzroth, Wronkiewicz testified,
I basically, you know, tried to alleviate his fears and answer his
questions as to the dosage he was actually receiving. Briefly
went over the process with him again, explaining that at any one
time, we generally inspect ten to 30 seeds, depending on the
activity of the seeds. Higher activity seeds, we inspect fewer
seeds at a time. Lower activity seeds, we could put 30 seeds out
there. Tr. 125.17
Wronkiewicz testified that at the conclusion to their discussion on day
two of Eltzroth's employment, "He [Eltzroth] was still unwilling to perform the seeds
function. At that time, I reminded him that it was part of his duties that he agreed to when
he accepted the position. I basically, you know, told him that it - it was up to him whether
or not he wanted to perform that function." Tr.125. "He requested time to think
about it but gave no indication whether or not he would perform the function in the
[Page 18]
future." Wronkiewicz concluded the meeting by suggesting that Eltzroth meet again
the next day with Zdunek, who "would be able to present data - historical data that we
had plus other reference data as to exposure - allowable exposure limits and things of that
nature." Tr.126.
The next day (day three of Eltzroth's employment), the supervisor
essentially repeated himself to Eltzroth:
When I came in, I once again went over [with Eltzroth] his
concerns. Once again reminded him that . . . based on our
historical data for technicians working with the material doing
that procedure that we had found it to be well within the limits.
Reminded him once again that it was part of his duties that he
accepted when he accepted the position. And then . . . basically
- said it's up to you . . . whether or not you want to do that test.
I can't force you to do it. But that is part of the job
responsibilities.
Tr. 127.
The majority opinion finds that after Eltzroth's initial refusal to work,
Respondent "made significant efforts to investigate and to explain the safety of the
work area to Eltzroth." However, what the record (both that cited above and that cited
by the majority) demonstrates is, as the ALJ found, there was no investigation of Eltzroth's
concerns, and little offered by way of explanation specifically addressed to those concerns.
Efforts [by Respondent] appear to have been made to calm
complainant's fears. However, there is no indication in the
record that an investigation was undertaken, other than a repeat
of the detector-glove test, which obviously did not dispel the
concern. Additionally, the explanation to complainant was
lacking, in part because little inquiry went into the matter, and
in part because his concern was addressed with data that did not
answer his question, since the badges did not measure the
radiation dosage of the occasionally exposed forearm.
R. D. & O. at 11.
[Page 19]
(2) Pensyl and its Progeny
In remanding the case in Pensyl for a determination of whether
the employer had properly fulfilled its obligations to investigate and explain, the Secretary
cited three areas of concern requiring scrutiny: (a) the nature of the investigation undertaken
once the concern of potential hazard is raised; (b) the results of the investigation and how
those results are communicated to the employee; and (c) how the employer otherwise
responds to the employee's concerns, including the nature of any counseling afforded the
concerned employee. Pensyl, slip op. at 7-8.
Consistent with the analysis of Pensyl, the Secretary has held
that the employer's response was adequate, and thus that the employee's work refusal for
safety reasons was no longer protected activity, where appropriate management personnel
investigated the employee's specific concerns and, after finding the perceived danger
nonexistent, satisfactorily communicated those findings to the employee. For example, in
holding for the employer in Stockdill v. Catalytic Industrial Maintenance, 90-ERA-43, Sec'y D. & O. (Jan. 24, 1996), the Secretary found that management, in response to the
employee's concerns, checked appropriate air samples for levels of contamination, which
was corroborated by further air quality analysis by other company officials. The results of
the investigation were, in turn, sufficiently explained to the employee such that the employer
"had no further indication of why complainant was still refusing to work, as
complainant did not at that time state that he wanted to see test results or why he did not
believe Respondent's evaluation of the work area." Stockdill, slip op. at 4-5.18 In Smith
v. Catalytic, Inc., 86-ERA-23, Sec'y D. & O. (March, 18, 1988), the Secretary not only
determined that the employee "did not have a good faith reasonable belief that the
working conditions were unsafe or unhealthful," but that "responsible
management officials perceived the potential hazard, investigated it, and adequately
explained it to the employees, including the complainant." Smith, slip op. at
2.
At the same time, the Secretary has not held the employer to such a
rigorous standard of investigation and explanation where the employee's safety concerns
proved too general or vague. In Wilson v. Bechtel Construction, 86-ERA-34, Sec'y
D. & O. (Feb. 9, 1988), the complainant had failed to articulate specific safety reasons at the
time for not wanting to undertake an assignment.19 The Secretary held that,
"to the extent complainant actually raised safety questions with his supervisors, they
were adequately responded to under Pensyl, given the general and often ambiguous
nature of his questions." Wilson, slip op. at 9. In light of the dearth of safety
questions raised, the response by his supervisor and a health physics specialist to the few that
[Page 20]
were, and the fact that the complainant was well aware of the various procedures available
to him for raising any safety concerns that he had, the Secretary concluded that,
"Respondent could reasonably have believed it had adequately responded to
Complainant's safety concerns." Id., slip op. at 12.
On the other hand, the Secretary has found for the employee where no
investigation of an employee's protected safety concerns was undertaken or where the
concerns were otherwise inadequately addressed by the respondent. In Blackburn v.
Metric Constructors, 86-ERA-4, Sec'y D. & O. (June 21, 1988), the Secretary concluded
that although the respondent's witnesses testified as to the company's procedures for
maintaining safe working conditions, "they did not explain what if anything was done
to investigate complainant's safety concerns or to allay his fears" at the time his
concerns were first raised. Thus, the Secretary concluded, "there were no steps taken
by respondent which, under Pensyl, would have caused the loss of [complainant's]
protection." Blackburn, slip op. at 15. See also Tritt v. Fluor
Constructors, 88-ERA-29, Sec'y D. & O. (August 25, 1993).
Where specific safety concerns are raised, review of an employer's
safety procedures and mere assurances of safety by management are not enough.
"[A]ctual safety is not the relevant issue at this point. Rather, the pertinent issues are
whether complainant had a reasonable, good faith belief that conditions were unsafe, and
whether respondent provided sufficient information to dispel these concerns and adequately
explained the safety issues raised." Van Beck v. Daniel Construction, 86-ERA-26, Sec'y D. & O., slip op. at 4 (Aug. 3, 1993).20
At the same time, an employer will not be required to do more than is
reasonable under the circumstances. Thus, in Dobreuenaski v. Associated
Universities, ARB Case No. 97-125, ALJ Case No. 96-ERA-44 (June 18, 1998), the
ARB refused to afford an employee's work refusal protection under Pensyl where
the employer's "extensive and good-faith efforts" to convince the claimant that
his assignments were safe proved unavailing only because they "were rebuffed by
[claimant's] obduracy." Dobreuenaski, slip op. at 12.
Conclusion
That Amersham's response was inadequate and insufficient to meet
the requirements of Pensyl should be self-evident from the foregoing. Unlike the
[Page 21]
situation in Wilson v. Bechtel, supra, Eltzroth articulated at the time specific
safety concerns for refusing to continue the work assignment. Thus, more was required of
Respondent than its mere attempt to calm complainant's fears with assurances of compliance
with regulatory guidelines and citation to historical data unresponsive to Eltzroth's specific
questions. Van Beck v. Daniel Construction, supra; Blackburn v.
Metric Construction, supra. Required of Respondent was the type of
investigation undertaken by management in Stockdill v. Catalytic Industrial
Maintenance,supra, and Smith v. Catalytic, supra.21
Moreover, not only was no investigation undertaken of Eltzroth's
safety concerns, it should have been clear to Respondent that what little explanation its
management and safety officer offered failed miserably to allay Eltzroth's concerns. Unlike
the situation in Wilson v. Bechtel and Stockdill, supra, Respondent
had no basis upon which to reasonably conclude that Eltzroth's concerns had been
satisfactorily addressed. Eltzroth's reaction to his employer's response was one of genuine
and obvious unease and uncertainty, which alone should have put Respondent on notice that
more was required. The uncontroverted testimony at hearing before the ALJ, by Eltzroth and
Respondent's witnesses, was that after receiving an explanation from one management
official or another, Eltzroth indicated in every instance that he still felt
"uncomfortable," that he wanted to study the matter further, that he
"needed more time" to think about the situation. See e.g. Transcript, pg.
14; see footnote 14 supra, and accompanying text.22
As the Secretary made clear in Tritt v. Fluor Constructors,
supra, once an employee raises a reasonable, good-faith safety-based reason for
refusing to work, the employer is under an obligation to both "do an
investigation and provide an adequate explanation" to the employee. Slip op. at 8-9.
In the instant case, I agree with the ALJ's findings (R. D. & O. at 11) that no such
investigation was undertaken, and that the explanation offered was clearly lacking. Had
Eltzroth raised the "zero radiation exposure" demand earlier, particularly had he
made such a demand at the time he initially raised his safety concerns, I would have agreed
that Eltzroth's work refusal was not based on a reasonable, good-faith concern as to his
safety, and thus would have joined in the majority's opinion. However, where Eltzroth's
"zero exposure" demand (assuming such a demand occurred) was raised
subsequent to a clearly inadequate response and no investigation by Respondent, I refuse to
hold that Eltzroth's "demand" removed his work refusal from the protections
afforded under Section 211 of the ERA.
[Page 22]
Indeed, my greatest concern with the basis for the majority opinion
issued herein is that it offers too convenient an avenue around the protections to be afforded
an employee who refuses a work assignment due to a reasonable, good-faith safety concern.
In light of the majority's holding, all an employer need do in order to defeat Pensyl,
supra, is evade its obligation to investigate and satisfactorily explain the employee's
safety concerns just long enough for the employee to, in frustration, issue some protestation
or take some action that is deemed to remove himself/herself from Pensyl's
protection. Where an employee refuses work or a work assignment because of a reasonable,
good-faith safety concern, Pensyl clearly obligates the responsible management
official(s) (and others, if appropriate) to investigate the employee's concern(s). If, as a result
of the investigation, the work environment is found to be safe, management must adequately
explain the results of its investigation to the employee. Unless and until the investigation is
concluded and the results thereof explained, the employee's refusal to work in the perceived
unsafe environment remains fully protected. The Secretary in Pensyl could not have
been clearer: an employee's refusal to work loses its protection only "after
the perceived hazard has been investigated . . . and if found safe, adequately explained to the
employee." Pensyl, slip op. at 7 (emphasis added).
Thus, I conclude that Eltzroth's refusal to work due to his safety
concerns did not lose its protected status and thus, that Eltzroth was wrongfully discharged
in violation of Section 211 of the ERA.
E. COOPER
BROWN
Member
[ENDNOTES -- MAJORITY OPINION]
1 These regulations were amended
in February 1998 to provide, inter alia, for review of ERA and other "whistleblower"
complaints upon the filing of an appeal by a party aggrieved by an Administrative Law Judge's decision.
See 63 Fed. Reg. 6614 (Feb. 9, 1998). In this case, the Administrative Law Judge issued a
recommended decision and order on October 2, 1997; accordingly, this matter is before the Board
pursuant to the pre-1998 automatic review provision of the regulation at 29 C.F.R. §24.6(a) (1997).
2 Wronkiewicz also showed Eltzroth
the bulletin board where employee radiation dose rates were posted, and told Eltzroth he could expect
to receive doses similar to those for Wronkiewicz. Respondent's Exhibit (RX) 3 at 3.
3 The I-125 seeds were located
behind a leaded plexiglass shield and the inspector handled the seeds using tweezers and protective leaded
gloves. R. D. and O. at 5. The inspector picked up the I-125 seeds one at a time with the tweezers and
sized the seeds with a measuring tool. Id. at 4.
4 According to Amersham's
Radiation Safety Officer, the radiation detector that Eltzroth inserted into the protective glove (a Ludlum
model 12 probe) was calibrated to detect the presence of any radioactive contamination. The
radiation detector was extremely sensitive and, among other things, was used by Amersham to detect
whether any I-125 seeds might have been overlooked at the work station once the seeds had been put
away. Tr. 67, 68.
5 No one claimed that the gloves
eliminated all exposure to radiation.
6 OSHA regulations limit workers
in restricted areas to whole body radiation exposure of 1 1/4 rems per calendar quarter (5 rems per year)
and exposure to hands and forearms, and feet and ankles to 18 3/4 rems per calendar quarter (75 rems
per year). 29 C.F.R. §1910.1096(b) (1998).
7 The dissent emphasizes that
Eltzroth had two concerns, i.e. "the actual radiation dose emanating from the I-125
seeds," and "actual exposure levels resulting to his unshielded forearms." Dissent, p.
14, infra. Although Eltzroth expressed concern about his forearms at the hearing, there is
nothing in the record from which to conclude that Eltzroth voiced that concern to his supervisors at
Amersham at the time of his work refusal. All of the evidence regarding Eltzroth's conversations with
his supervisors relates to his apprehension about the level of exposure to his hands and the adequacy of
the leaded gloves.
8 Eltzroth testified that in
Wronkiewicz's presence he again tested the I-125 inspection area with the radiation detector, this time
placing eight layers of protective gloves over the I-125 seeds. The radiation detector showed the presence
of radiation. T.14. Wronkiewicz did not testify regarding this incident.
9 After his termination, Eltzroth filed
a complaint with the Illinois Department of Nuclear Safety (IDNS), alleging that radiation levels
exceeded prescribed safety limits. After its investigation, IDNS reported that Amersham's I-125
inspection facility used appropriate shielding techniques, and that records revealed no employee radiation
exposure to be in excess of the regulatory or administrative limits. IDNS also concluded that Eltzroth
was terminated for refusal to perform required duties, rather than because of his safety concerns. RX 1.
10 We agree with the ALJ
that Eltzroth had a reasonable, good faith belief that working with the I-125 seeds exposed him to unsafe
levels of radiation. We note, however, that the facts as presented do not indicate that the seeds inspection
technicians actually were exposed to prohibited levels of radiation. As we mentioned above, the Illinois
Department of Nuclear Safety inspected Amersham's facility following Eltzroth's complaint and
concluded:
During a demonstration of the seed inspection procedure, the licensee was found to be
using appropriate shielding to ensure that doses were well within the limits found in the
regulations and the license. A review of personnel dosimetry records confirmed that no
employees received doses above any regulatory or administrative limits.
RX 1 at 2. The ALJ found "the report submitted pursuant to the IDNS investigation reflects
that the task for which [Eltzroth] was hired was indeed in conformity with [regulatory]
requirements." R. D. and O. at 14.
Moreover, Zdunek testified without contradiction that since he had become
Radiation Safety Officer in 1991 no Amersham employee performing any function in the facility had
received a radiation dose in excess of regulatory limits, and that the technicians who inspected the I-125
seeds received some of the lowest radiation levels in the facility. Tr. at 51, 54.
11 Eltzroth's testimony
regarding these meetings does not contradict that of Wronkiewicz or Zdunek. See Tr. 13-15, 25-26, 30-31.
12 Contrary to assertions of
the dissent, we find nothing in the record which would support a conclusion that Eltzroth's insistence on
a position with no exposure to radiation was prompted by frustration.
13 Eltzroth had an opportunity
at hearing to explain his insistence on a radiation-free work environment. He did not do so.
[ENDNOTES -- DISSENT]
1 For discussion of internal
complaints as "protected activity," see Stockdill v. Catalytic Industrial Maintenance,
90-ERA-43, Sec'y D. & O. (Jan. 14, 1996); Dobreuenaski v. A.U.I., 96-ERA-44, ARB Case No.
97-125 (June 18, 1998).
2 For discussion of refusal
to engage in hazardous work as "protected activity,"see Pensyl v. Catalytic,
Inc., 83-ERA-2, Sec'y D. & O. (Jan. 13, 1984); Blackburn v. Metric Constructors, 86-ERA-4, Sec'y D. & O. (June 21, 1988).
3 As the majority opinion
correctly notes, once the Respondent produces evidence demonstrating that the complainant was
subjected to adverse action for a legitimate, non-discriminatory reason, the relevant inquiry becomes
whether complainant can prevail on the ultimate question of liability. SeeCarroll v. U.S.
Dep't of Labor, 78 F.3d 352, 356 (8th Cir. 1996).
4 "Whether the belief
is reasonable depends on the knowledge available to a reasonable person in the circumstances with the
employee's training and experience." Stockdill, supra, slip op. at 2;
Pensyl, slip op. at 7.
5 If anything, I would add
to the ALJ's findings the fact of Eltzroth's educational background in physics, including his teaching
thereof at the community college level prior to going to work for Respondent. Tr. 10. As Eltzroth stated
at the hearing, "My background in physics, while not specifically in radiation, taught me enough
to know that I had to be careful in dealing with radioactivity." Tr. 12. Indeed, Eltzroth's ability
to do rough dose calculations for the I-125 actually increased his concern. Tr. 17.
6 At the time Eltzroth
conducted his initial I-125 inspection, he had poured out 80 seeds for inspection. Eltzroth testified that
he poured out 80 seeds, "the whole batch," because when initially shown how to do the
inspection, they had used a batch of 80 seeds. Eltzroth further mentioned that 80 seeds was considered
a "normal check," Tr. 40-41, an assertion corroborated by the individual who trained Eltzroth
in the seed inspection process. See memo to file of J. Graney, at Respondent's Exhibit 3.
7 It is true, as the majority
points out, that Eltzroth testified that his dose calculations were theoretical, rather than based on actual
measurements. Nevertheless, under questioning at hearing, Respondent's radiation safety officer agreed
that Eltzroth's calculations could reflect actual exposure rates within the immediate work area of the seeds
-- provided a sufficient number of seeds were in the batch. Tr. 89; 100-101.
8 Eltzroth testified that he
understood that the film badges were not 100% accurate. Tr. 26-27. Respondent's safety officer,
Zdunek, testified that the film badge readings could be off in accuracy anywhere from 10% to 20%. Tr.
94-95.
9 Eltzroth testified that the
inspection process for a batch of seeds required about 15 minutes, Tr. 17, and Graney's memo to file
indicates that on the second day of Eltzroth's employment, she tested two batches of 80 seeds each in one
hour. Respondent's Exhibit 3. Thus, based on Zdunek's testimony of 100 mrem to the forearm per seed
inspection, and assuming, conservatively, one seed inspection per hour, by the end of three months, the
cumulative exposure to a worker's forearms could exceed the annual dose limit of 50 rems, which
Zdunek had stated was the regulatory limit, or within five months exceed the 75 rems per year OSHA
limit referenced in the majority opinion.
10 Wronkiewicz's
"Activity Report" indicates that the supervisor informed Eltzroth that "we . . . limit the
number of seeds we inspect at any one time to 10 to 30 seeds." See Respondent's Exhibit
3.
11 Graney's account of the
process is also consistent with information found in Respondent's Exhibit 4, consisting of a copy of the
"Mil. Std. Training Quiz" which had been administered to Eltzroth as part of his training.
At page 2 thereof, the following question (and Eltzroth's apparently approved answer) is found:
"When reduced inspection is in effect, normal inspection shall be instituted if 1
lot/lots is/are rejected. 10 lots have to be accepted (or pass specification) under normal
inspection before reduced inspection can again be instituted."
12 I also deduce from the
record that Respondent's calibration of the I-125 radiation field to NRC-acceptable safety levels was
based on the radiation generated from 10 to 20 seeds, rather than the 80-seed "normal"
inspection of concern to Eltzroth. Tr. 83. This, coupled with their testimony before the ALJ as to what
constituted a "normal" seed inspection, draws into question both Zdunek's and
Wronkiewicz's credibility on the witness stand.
14 Wronkiewicz's Activity
Report notes that at the end of day two, and again on day three, after listening to Respondent's
explanations, Eltzroth asked in each instance for more time to think about the matter. Indeed, on day
three Eltzroth made this request twice, just prior to Respondent's decision to terminate, when Eltzroth
"once again said he had to think about [it] and would let me know the next day'" and, again,
upon subsequently being notified of his termination. Wronkiewicz's report, at Respondent's Exhibit 3.
15 Beyond this, I found
nothing in the record to indicate that, at the time he raised his concerns, Eltzroth received the full and
detailed explanation given by Respondent to the ALJ as to the nature of, and limitations to, the radiation
monitoring device upon which Eltzroth had relied.
16 Wronkiewicz, Eltzroth's
supervisor, characterized Zdunek's response as having "tried to explain to him [Eltzroth] using
historical data and other types of reference material that the procedure was safe and well
within the limits." Tr. 128. (Emphasis added).
17 Wronkiewicz's
contemporaneously prepared "Activity Report" states that the supervisor, in response to
Eltzroth's concerns, "explained and demonstrated to Ted at that time that sufficient shielding was
in place to protect his legs, body and head from most of the detectable field from the I-125 seeds. I also
explained that the leaded gloves offered sufficient shielding in the 28 keV and 35.5 keV energy ranges
to limit the exposure to extremely low dosage levels. In addition, I reminded Ted that we also limit the
number of seeds we inspect at any one time to 10 to 30 seeds, to further limit our exposure."
Wronkiewicz's Report, at Respondent's Exhibit 3.
18 Given the facts of the
instant action, it is also relevant to note the Secretary's concluding admonishment that, "Had
Complainant inquired further or had he more expertise or knowledge of contamination prevention . . .,
Respondent might have been required to further explain and display the safety of complainant's work
area." Stockdill, slip op. at 4-5 (emphasis added).
19 Concerns subsequently
raised at hearing before the ALJ appear to have been largely kept by the complainant to himself at the
time of his refusal to undertake the work assignment. Wilson, slip op. at 5-9.
20 In Van Beck, the
Secretary noted that the evidence submitted by the respondent at hearing in support of its claim of safety
actually cut against respondent's case, as such evidence suggested that at the time claimants' concerns
were first raised, "respondent had sufficient information in its possession to adequately explain
[the] perceived safety concerns to their employees." Van Beck, slip op. at 4. Cf.
Transcript, pp. 74, 80-81 (testimony suggesting that Respondent Amersham could have measured the
radiation field of concern to Eltzroth).
21 Indeed, given the
Secretary's admonishment in Stockdill (see footnote 18, supra), more may well
have been required of Respondent in the instant situation.
22 Eltzroth testified that he
had the distinct feeling that Respondent did not appreciate the seriousness of the concerns he had raised,
was not interested in conducting an actual investigation in response to his concerns, unwilling to look any
further than the paperwork, and content with the fact that they were monitoring radiation levels with a
badge. See Tr. at 25, 29.