DATE: January 24, 1996
CASE NO. 90-ERA-43


IN THE MATTER OF

ROBERT P. STOCKDILL,

          COMPLAINANT,

     v.

CATALYTIC INDUSTRIAL MAINTENANCE
COMPANY, INC.,

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     This case is before me pursuant to the employee protection
provision of the Energy Reorganization Act of 1974, as amended
(ERA), 42 U.S.C. § 5851 (1988).  Robert P. Stockdill
(Stockdill)  alleged that he was improperly fired from his boilermaker
position with Respondent's retubing project at Georgia Power
Company's Edwin I. Hatch nuclear power plant for refusing to work
when denied a dust mask[1]  and also for his separate internal
safety complaints.  The Administrative Law Judge (ALJ) issued a
Recommended Decision and Order (R. D. and O.) on January 28,
1992, rejecting Stockdill's charges and recommending dismissal of
his complaint.  Neither party filed briefs with the Secretary
regarding the R. D. and O.[2] 
     The record in this case has been thoroughly reviewed.  I
find that it fully supports the ALJ's findings and conclusions, 
[PAGE 2]
set forth in a well-reasoned, comprehensive R. D. and O.
Accordingly, I adopt the R. D. and O. and dismiss the case. 
Hu v. Public Service Electric and Gas Co., Case No. 93-
ERA-38, Sec. Fin. Dec. and Ord., Oct. 19, 1995, slip op. at 2;
Minard v. Nerco Delamar Co., Case No. 92-SWD-1, Sec. Fin.
Dec. and Ord., July 25, 1995, slip op. at 1; Daugherty v.
General Physics Corp., Case No. 92-SDW-2, Sec. Fin. Dec. and
Ord., Apr. 19, 1995, slip op. at 2; Seda, Walters, Wathier v.
Wheat Ridge Sanitation District, Case No. 91-WPC-1, 91-WPC-2,
91-WPC-3, Sec. Fin. Dec. and Ord., Sept. 13, 1994, slip op. at 2-3.
     Under the ERA, work refusals are protected if the
complainant has a good faith, reasonable belief that working
conditions are unsafe or unhealthful.  Whether the belief is
reasonable depends on the knowledge available to a reasonable
person in the circumstances with the employee's training and
experience.  However, refusal to work loses its protection after
the perceived hazard has been investigated by responsible
management officials and, if found safe, adequately explained to
the employee.  Tritt v. Fluor Constructors, Inc., Case No.
88-ERA-29, Sec. Dec. and Ord. of Rem., Aug. 25, 1993, slip op. at
6-7 (citing Van Beck v. Daniel Construction Co., Case No.
86-ERA-26, Sec. Dec. and Ord. of Rem., Aug. 3, 1993; Sartain
v. Bechtel Constructors Corp., Case No. 87-ERA-37, Sec. Fin.
Dec. and Ord., Feb. 22, 1991; Wilson v. Bechtel Construction,
Inc., Case No. 86-ERA-34, Sec. Fin. Dec. and Ord., Feb. 9,
1988; Smith v. Catalytic, Inc., Case No. 86-ERA-12, Sec.
Dec. and Rem. Ord., May 28, 1986; Pensyl v. Catalytic, Inc.,
Case No. 83-ERA-2, Sec. Dec. and Ord., Jan. 13, 1984), appeal docketed sub
nom. Fluor Constructors, Inc. v. Reich, 11th Cir., No.
95-2827; R. D. and O. at 6-7.
     Correctly applying these principles, the ALJ properly found
that Stockdill's initial refusal to work was protected because it
was based on a reasonable and good faith belief that the work
area was unsafe.  But, Stockdill s concerns were no longer
protected after they were properly investigated, found wanting,
and adequately explained to him.[3]   As summarized by the ALJ:

     Based on the foregoing, I find that Complainant's
     initial refusal to work was based on a reasonable and
     good faith belief that the work area was unsafe. 
     Complainant had seen dust on the previous day's shift,
     and had heard that workers on the previous night shift
     wore respirators or dust masks or were assigned to
     different work areas.  Reinforcing these concerns,
     Complainant had some doubts as to whether the HPs
     [health physics technicians] were properly performing
     their duties, and Complainant had doubts and fears as
     to whether the plastic draping between work boxes would
     
[PAGE 3]
     stop contamination.  Therefore, Complainant satisfies
     the first prong of inquiry into whether his refusal to
     work was a protected activity.

     I find, however, that the appropriate officials
     investigated the perceived danger and adequately
     explained the results to Complainant, to wit: after the
     HP foreman checked the appropriate air samples for
     levels of contamination, the air quality was further
     analyzed by Respondent (Mr. Thurmond and Mr. South). 
     Although Mr. South's visual inspection, by itself,
     seemed a bit weak, both the HP foreman and Mr. Thurmond
     checked air samples which corroborated Mr. Thurmond's
     more thorough investigation of the work area.  At that
     point, Complainant's refusal to work lost its protected
     activity status.  Pensyl, supra, at 7. .
     . .  Respondent 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.  Had Complainant inquired
     further or had he more expertise or knowledge of
     contamination prevention or dust detection, Respondent
     might have been required to further explain and display
     the safety of Complainant's work area.  Absent such
     further inquiry, I find Respondent adequately responded
     to Complainant's voiced concerns.
R. D. and O. at 12-13 (footnote omitted); Tritt v. Fluor
Constructors, Inc., slip op. at 8-9; Van Beck v. Daniel
Construction Co., slip op. at 7-8; Sartain v. Bechtel
Constructors Corp., slip op. at 9-12; Wilson v. Bechtel
Construction, Inc., slip op. at 9-11.
     Internal safety complaints are protected under the ERA. 
Bechtel Construction Co. v. Secretary of Labor, 50 F.3d
926, 931-33 (11th Cir. 1995) and cases cited; Seal v. American
Inspection Co., Case No. 92-ERA-6, Sec. Amend. Dec. and Ord.,
Mar. 24, 1995, slip op. at 3-4; R.D. and O. at 6.[4]   However, I
agree with the ALJ that Complainant's discharge was not
predicated in any part upon his safety complaints, but rather
upon his refusal to work, which, as discussed supra, had
lost its initial ERA protection.  As the ALJ explained:

     Specifically, Complainant noted that he made two safety
     complaints prior to his refusal to work on March 25,
     1990 (F-68, F-69).  On March 23, 1990, he reported to
     an HP an exposed pipe with resulting insulation, which
     was repaired (F-68, F-162).  The exposed insulation was
     
[PAGE 4]
     asbestos, which was removed quickly, according to 
     Mr. Jankovich (F-162).  Complainant also reported a
     missing toe board on a scaffold in the "B" box of
     Complainant's work area (F-69).  According to
     Complainant, cans of material on the scaffold could
     easily roll off the scaffold, without the toe board,
     resulting in a hazard to the boilermakers (F-69).  The
     toe board was replaced that same day (F-69). 
     Complainant opined that these safety complaints,
     coupled with his refusal to work, motivated Respondent
     to terminate him . . . (F-75).

                              *  *  *  *  * 

     . . . The testimony of Mr. South and Mr. Thurmond
     establishes that Complainant was terminated only for
     his refusal to work.  In addition, Respondent went to
     significant lengths to investigate, and explain the
     safety of the work area to Complainant.  Respondent
     gave Complainant opportunities to change his mind
     concerning his refusal to work, and the ultimate
     decision of whether to work remained with Complainant. 
     I find that Complainant's reports to safety personnel
     concerning the exposed pipe insulation and missing toe
     board played no part in Respondent's actions against
     him.  Complainant was discharged entirely because he
     improperly refused a work assignment.  Further,
     according to Respondent's own work rules of which
     Complainant was aware, there were no other alternatives
     available for an employee who unjustifiably refuses a
     work assignment.  Complainant has offered no probative
     or reliable evidence tending to prove that his
     participation in reporting the exposed pipe insulation
     or the missing toe board caused him to be treated even
     minimally less favorably by Respondent . . . .  
R. D. and O. at 14-15;  Seal v. American Inspection Co.,
slip op. at 5-6.
     In sum, I agree with the findings and conclusions of the ALJ
that Respondent did not violate the ERA in discharging Stockdill. 
Accordingly, this case is DISMISSED.
     SO ORDERED.



                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.




[ENDNOTES]
           
[1] 
  Stockdill requested a dust mask because of concerns regarding
airborne radiological contamination, dust and fibers.  Dust masks
were prohibited in his work area by company rule and federal
regulation although they might have been worn there on occasion. 
See Administrative Law Judge's recommended decision,
infra at 9- 10.

[2] 
  In the ALJ proceedings, Complainant appeared pro se and
Respondent appeared through counsel.

[3] 
  In view of my affirmance of the ALJ's conclusion that both
Stockdill s nuclear and non-nuclear concerns were properly
addressed, it is unnecessary to rule on the ALJ's view that
Stockdill's non-nuclear dust concern, R. D. and O. at 7-12, was
initially subject to ERA protection.  Regarding these concerns,
the ALJ held as follows:

     Respondent has argued that once Complainant appeared
     satisfied with the explanation that there was no        
     contaminated dust or particles, his concerns about dust
     which irritated his breathing condition were outside
     the scope of the Energy Reorganization Act.  Respondent
     has cited no authority directly on this issue.  As the
     purpose of the Energy Reorganization Act is to
     encourage employees of nuclear facilities to report     
     safety concerns, a distinction between radioactively
     contaminated dust and other dust [such as asbestos]
     would tend to hinder such employee reports.  The
     Secretary of Labor has indicated a very broad range of
     activities which are considered "protected" under this
     statute.  Therefore, I find that, under the facts of
     this case, Complainant's concerns were within the
     protection of the Energy Reorganization Act.  Further,
     it should not be implied from this finding that
     Respondent was in fact not in violation of any safety
     rules concerning dust or specifically asbestos dust in
     the workplace . . . .

R. D. and O. at 13 n.8.  See Van Beck v. Daniel
Construction Co.,  slip op. at 4-6 ("reject[ing] Respondent's
argument that ERA jurisdiction does not extend to protect
employee refusals to work . . . where the safety concern is not a
nuclear hazard . . . .  [B]ecause Respondent's retaliatory action
may directly affect the radiological safety of nuclear plant
construction and operation, . . . ERA jurisdiction is
appropriate.").

[4] 
  Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir.
1984),  contra, was legislatively reversed in 1992, when
 Congress amended the ERA s whistleblower provisions to provide
explicitly that an employer may not discriminate against
employees for making internal complaints about safety procedures
. . . .  The amendment applies to all complaints filed after the
effective date of the statute, October 24, 1992.   Bechtel
Construction Co. v. Secretary of Labor, 50 F.3d at 932 n.1;
Grover v. Houston Lighting & Power, Case No. 93-ERA-4,
Sec. Fin. Dec. and Ord., Mar. 16, 1995, slip op. at 4 n.1.