DATE:  March 17, 1995
CASE NO. 90-TSC-2


IN THE MATTER OF

ROBERT DELANEY,

          COMPLAINANT,

     v.

MASSACHUSETTS CORRECTIONAL INDUSTRIES,

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER
     The Administrative Law Judge (ALJ) submitted a Recommended
Decision and Order (R. D. & O.) dismissing the Complaint in this
case arising under the employee protection provision of the Toxic
Substances Control Act (TSCA), 15 U.S.C. § 2622 (1988).  The
ALJ held that, although Complainant Robert Delaney engaged in
activity protected under TSCA, Respondent Massachusetts
Correctional Industries (MCI) was not motivated by that activity
when it involuntarily transferred Mr. Delaney.  R. D. & O. at 5. 
In addition, the ALJ found that, even if Respondent were
motivated in part by Mr. Delaney's protected activity, it would
have taken the same action for other legitimate reasons. 
Id.  Finally, the ALJ held that the complaint of
retaliation in failing to select Mr. Delaney for a promotion was
time barred.   I agree with the ultimate conclusion that MCI did
not discriminate against Mr. Delaney and affirm the ALJ's
decision as modified.
                             Background
     The facts are summarized in detail in the ALJ's decision. 
R. D. & O. at 2-4.  Briefly, Mr. Delaney worked as an Instructor 
[PAGE 2]
I in the License Plate Shop of MCI in the maximum security prison
at Walpole, Ma. from 1987 until August 14, 1990.  Id. at
2.  Mr. Delaney complained repeatedly from 1988 to 1990 about
exposure to toxic materials used in the manufacture of license
plates where he worked.  He made oral complaints to his
supervisor and later filed a formal grievance.  T. (Transcript of
hearing) 23; C (Complainant's Exhibit)-1.  In the spring of 1990,
he also filed complaints with the U.S. Environmental Protection
Agency, the Massachusetts Department of Environment Protection,
and the Town of Walpole Board of Health.  R. D. & O. at 3.
     In December 1989, Mr. Delaney applied for a promotion to an
Instructor Level II position, but did not receive
the promotion.  Id.  On August 14, 1990, MCI involuntarily
transferred Mr. Delaney to an Instructor Level I position at Norfolk
Industries, a manufacturing operation in the adjacent prison in
Norfolk.  C-3; T. 94-95.  The stated reason for the transfer was
"[c]limate reports indicate you [were] a source of information to
inmates through indiscretion in your conversations with staff and
while on the telephone, in the presence of inmates, discussed
matters of a sensitive nature which could be overheard."  C-3. 
Mr. Delaney alleges that both the denial of a promotion and the
involuntary transfer were in retaliation for his complaints about
toxic substances in the License Plate Shop.
                              ALJ Decision
 The ALJ held Mr. Delaney engaged in protected activity when
he filed complaints with state and federal agencies about toxic
substances in the License Plate Shop.  R. D. & O. at 4.  He
concluded first that Mr. Delaney's complaint about the failure to
promote him was untimely, because Mr. Delaney's whistleblower
complaint under TSCA was not filed until August 29, 1990, more
than eight months after the denial of the promotion in December
1989.  R. D. & O. at 5.  Complaints under TSCA must be filed
within 30 days of the alleged discrimination.  15 U.S.C. 
§ 2622(b)(1).  The ALJ also held that Mr. Delaney's
complaints to federal and state agencies "played no role in
Respondent's decision to transfer [Mr. Delaney]," and that MCI
would have transferred him "even if [Mr. Delaney] had not engaged
in the protected activity . . . ."  Id.  Finally, although
the ALJ found it was not necessary to decide whether the transfer
to a job with the same pay and benefits was a discriminatory act,
he held it was not.  Id. at 6.
                               Discussion
 I agree with the ALJ that Mr. Delaney engaged in protected
activity when he made complaints to state and federal
environmental agencies.  It is important to note that 
Mr. Delaney's internal complaints to his supervisors also were
protected. [1]   See Passaic Valley Sewerage Comm'rs v.
United 
[PAGE 3]
States Dep't of Labor, 992 F.2d 474, 478 (3d Cir. 1993).  If 
Mr. Delaney had filed a timely complaint, therefore, he would
have been entitled to an opportunity to show that his internal
safety and health complaints motivated the denial of a promotion.
     I cannot agree with the ALJ that an involuntary transfer,
even to a job with the same pay and benefits, would not
constitute an adverse action.  There is no doubt that the new job
carried different, albeit similar, responsibilities and,
therefore, adversely affected Mr. Delaney's "terms, conditions
[and] privileges of employment . . . ."  15 U.S.C. §
2622(a).  In particular, Mr. Delaney did not believe he was
qualified to act as an Instructor in the Norfolk MCI shop.  T.
86-88.  If Mr. Delaney had not been successful in that job, his tenure as an
employee could have been threatened.  Helmstetter v. Pacific
Gas & Electric Co., Case No. 86-SWD-2, Sec'y. Dec. Sep. 9,
1992, slip op. at 5, and cases discussed therein (finding
disciplinary letter placed in employee's file constitutes adverse
action).
     The record in this case has been reviewed and I adopt the
ALJ's conclusion that MCI was motivated by concern for "the
overall climate and security" of the prison when it transferred
Mr. Delaney, not by his protected activities.  R-6; T. 133.  Even
though the substance of Mr. Delaney's internal complaints was
protected under TSCA, the indiscreet manner in which openly
discussed the situation within earshot of prisoners was not
protected. [2]   The cases are clear that an employer may take
action against an employee for improper conduct in raising
otherwise protected complaints.  See, e.g., Dunham v.
Brock, 794 F.2d 1037, 1041 (5th Cir. 1986) (finding "[a]n
otherwise protected . . . [whistleblower] is not automatically
absolved from abusing his status and overstepping the defensible
bounds of conduct."); Hale v. Baldwin Associates, Case
No.85-ERA-37, Sec'y. Dec. Sep. 29, 1989 (adopting ALJ recommended
decision that discharge of employee who has become a "disruptive
force in the workplace" does not violate employee protection
provision of the Energy Reorganization Act of 1974, as amended
(ERA), 42 U.S.C. § 5851 (1988 & Supp. V 1993).
     Accordingly, the complaint in this case is DISMISSED.
     SO ORDERED.

                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.





[ENDNOTES]
           
[1]   The only witness for Respondent, the Director of MCI,
testified that, before Mr. Delaney filed his grievance in April
1990, he was not aware of anyone complaining about hazards to
health in the License Plate Shop.  T. 102.  But Respondent
offered no evidence to contradict Mr. Delaney's testimony that he
repeatedly complained to his immediate supervisors.

[2]   I note that my conclusion is limited to the unusual facts
of this case, that is, the prison setting.  In ordinary
employment surroundings, the fact that a co-worker overheard a
whistleblower making or discussing his safety complaint would
not, without more, deprive him of protection under TSCA.