ML17331A250
| ML17331A250 | |
| Person / Time | |
|---|---|
| Site: | Cook  |
| Issue date: | 04/02/1993 |
| From: | Norelius C NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION III) |
| To: | Fitzpatrick E INDIANA MICHIGAN POWER CO. |
| References | |
| EA-93-059, EA-93-59, NUDOCS 9304130037 | |
| Download: ML17331A250 (17) | |
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UNITED STATFS NUCLEAR REGULATORY COMMISSION REGION III 799 ROOSEVELT ROAO CLEM ELLYN, ILLINOIS 60I37 t3lPR 02 1993 Dockets No. 50-315; 50-316 Licenses No.
DPR-581 DPR-74 EA 93-059 Indiana and Michigan Power Company ATTN:
Mr. E.
E. Fitzpatrick Vice President Nuclear Operations Division One Riverside Plaza
- Columbus, Ohio 43216
Dear Mr. Fitzpatrick:
SUBJECT:
U.S.
Department of Labor Case No. 92-ERA-37 This refers to the results of a hearing conducted on September 15,
- 1992, by an Administrative Law Judge (ALJ) of the U. S. Department of Labor (DOL) into a complaint filed on April 20,
- 1992, by an individual formerly employed by American Nuclear Resources, Inc. at the D. C. Cook Nuclear Station.
The ALJ concluded in a Recommended Decision and Order, dated February 25,
- 1993, (copy enclosed) that American Nuclear Resources, Ltd., terminated the individual as a
result of circumstances which led him to request, on March 20,
- 1992, a
copy of the report concerning his whole body count exposure..
The ALJ concluded that the individual was engaged in a protected activity and was terminated for raising questions about such activity.
Therefore, the ALJ ordered American Nuclear Resources, Ltd.,
to pay back wages and other sums to the individual.
Based on a
review of the Recommended Decision and
- Order, an apparent violation of 10 CFR 50.7, "Employee Protection,"
was identified and is being considered for escalated enforcement action in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy),
Accordingly, no Notice of Violation is presently being issued for these findings.
In addition, please be advised that the number and characterization of apparent violations may change as a
result of further NRC review.
In approximately one week from the date of this letter,'a member of my staff will contact your staff to schedule an enforcement conference.
Since we understand that the Secretary of Labor will review the ALJ'S Recommended Decision and Order on its merits, we are especially interested in hearing:
(1) any actions you have taken or plan to take to minimize any potential chilling effect CERTIFIED MAIL RETURN RECEIPT RE UESTED 9304130037 930402 PDR ADOCK 05000315 6
I C
Indiana and Michigan Power APR 0 8 1993 arising from the circumstances related to the employee that might inhibit or prevent your employees or employees of your contractors from raising safety concerns; and (2) the actions you have taken to assess the extent to which workers at the D.
C.
Cook Plant may harbor reservations about raising safety concerns and the actions you have taken or plan to take to eliminate or minimize any such reservations.
We also request that you provide us a copy of any investigation reports you may have regarding the termination of the individual.
You will be advised by separate correspondence of the results of our deliberations on this matter.
No response regarding the apparent violation is required at this time.
In accordance with 10 CFR 2.790 of the NRC's "Rules of Practice,"
a copy of this letter and its enclosure will be placed in the NRC Public Document Room.
Sincerely, Ch les E.
or lius, Director Division of Radiation Safety and Safeguards
Enclosure:
As stated.
ccgenclosure
~f'~DCD/DCBj.;(RIDS)',
A. A. Blind, Plant Manager James R. Padgett, Michigan Public Service Commission Michigan Department of Public Health EIS Coordinator, USEPA Region 5 Office Resident Inspector, RIII D.
C. Cook,
- LPM, NRR
..S. Department of Labor Office of Administrative ~w JUdgoa 525 Vino Street, Suite 900 Cincinnati, Ohio 45202 DATE:
CASE No.:
92-ERA-37 In the Matter of GREGORY A.
- SPRAGUE, Complainant AMERICAN NUCLEAR RESOURCESI INC Respondent Appearances:
David P. LaForge, Esq.
For Complainant Kevin M. McCarthy, Esq.'or Respondent BEFORE:
DANIEL J.
ROKETENETZ Administrative Law Judge RECOMMENDED DECISION AND ORDER STATEMENT OF THE CASE P
This case arises under Section 210 of the Energy Reorganiza-tion Kct of 19'74, thereinafter the "Act") 42 U.S.C.
5 5851, as implemented by'he regulations at 29 C.F.R. Part 24.
The Complain-
- ant, Gregory A.
- Sprague, filed a claim with the United States Department of Labor on April 21, 1992, alleging that the Respon-dent, American Nuclear Resources (ANR), terminated him on the basis of his request for a radiation report from the Nuclear Regulatory Commission (NRC).
On May 19, 1992, after an investigation, the Department of Labor determined that the Respondent made the decision to terminate the Complainant before he contacted the NRC, thus, there was no violation of Section 210 by the Respondent.
The Complainant contested this finding by making a timely request for a hearing before an Administrative Law Judge.
A formal hearing took place on
September 15, 1992, in Kalamazoo, Michigan. It has been stipulated that ANR. is a contractor for the D.C.
Cook Plant, a
Nuclear Regulatory licensee, that the Complainant was an employee of ANR, and that, ANR is subject to the provisions of the Act.
The Complainant seeks back pay from the time he 'was discharged as well as "front pay"- for the,"period of time he could have continued to be employed had he not been terminated by the Respondent.
Additionally, the Complainant seeks reimbursement for attorney fees and expenses incurred in connection with the filing of his complaint.
No compensatory damages are sought.
Issues:
The issues in this case are:
1.
Did the Complainant's contact with the NRC constitute protected activity under the Act?
2.
Was the Respondent aware of the contact between the NRC and the Complainant prior to terminating the Complainant?
3.
Did the Respondent unlawfully terminate the Complain-ant because of his contact with the NRC?
4.
Nas the Complainant's employment unlawfully terminat-ed due to any other protected activities?
Based upon my observation of'.the appearance and. demeanor of the witnesses who testified at the hearing and upon a thorough analysis of the entire record in thi's case, with due consideration accorded to the arguments of the parties, applicable statutory provisions, regulations, case law and post-trial briefs, I hereby make the following:
FINDING OF FACTS AND CONCLUSIONS OF LAN BACKGROUND:
American Nuclear Resources (ANR)'is a contractor for D.. C.
Cook Nuclear Reactor Plant, located ~at Bridgman, Michigan.
(Tr.
37)'he business office of ANR is located approximately ten miles from the D.
C.
Cook Plant.
ANR hired the Complainant, Gregory Sprague in January,
- 1992, as a,tool',:.accountability technician.
(Tr. 14) It.was explained to Sprague'when he was hired that the I
t-'
'References to the official transcript will be designated as (Tr..
); references to official exhibits will be designated as
- (Adm.'x.
) for'Administrative.exhibits, (Pl. Ex.
) for Complai'nant's"exhibitsand (Def..:.Ex.
) for Respondent's exhibits.
'work would be intermittent but that ic was expected Co continue until the following September.
(Tr.
16)
. After completing a
training. program in February, he began working at. the plant, on March 5, 1992.
(Tr. 15; 43)
As a Cool accountability technician, Sprague's duties were to monitor any tools and materials that came
.into the reactor containment area to ensure th t b '
no o sects fell (Tr. 15 M
into the cavity.. (Tr. 42)
ANR paid Sprague seven d ll
)
arch 20,
- 1992, was Sprague's final day of work for ANR.
o ars an hour.
(Tr. 16)
The Complainant was still a probationary emplo ee whe was terminated.
(Tr. 85)
Sprague's immediate supervisor was Georgia Emanuel.
Hs.
Emanuel was the acting supervisor of the tool accountability crew fox ANR and she occupied this position at all times relevant to this proceeding.
(Tr. 42)
Emanuel described the duties of a tool
'hat accountability technician as monitoring "a th' ny ing an everything" tools bo a
comes into co'ntainment, and "keeping track f h th
- ttles, whatever it is, along with making sure th
~
~
o w e er it be the items o ba g
ck out.
These duties occur from "the time that the ure e same, reactor head is lifted and set on the stand unt'1 the time the reactor head is put back on the. core
.." (Tr. 42)
On March 19,
- 1992, according to
- Emanuel, the Radiation cavit T
Protection employees (RP's) had poured water out f th y.
The RP s started spraying down the walls of the cavit to prevent radiation.from going'irborne, ".but.in..Emanuel's opinion "they waited too.long"to do so;."
(TR 51)
S volunteered to stay in Che containment area Co pick up tools.
The other tool accountability crew members left. the area.
- Emanuel, told b upon being informed of the situation went t th that she w
y an RP that she would have Co leave the area Sh e responded (TR 51 ould stay until she finished her business
'th h s wi er crew.
side th
)
According Co Emanuel the contamination had sprea Co out-d their feet.
Cl e containment area because of people track '
t 11 ing i a
over on ean up continued off and on all day 1ong.
(Tr. 52)
Emanuel testified that later that day, while she was sittin her office and started yelling about "the h t th
"'dbi re ng.
(Tr. 52)
Emanuel told S ra e n at her and he proceeded t t ll h ee e
o e
er that after he,came out-of p
gue not to yell containment he set off the monitors which reveal d th t h'ere contaminated.
After Sprague washed his hand and arm e
a is forearm and changed his clothing, "he was fine."
(TR 53) identified by Emanuel as being with her in her office when this
~
~
),;.The person yelling incident occurred (a crew member nam d N
1
)
a witness.
Sprague denied that he yelled at Emanuel.
determined the nee Sometime during the day on March 19 E
1 h d manue a
also e need to temporarily lay off. four of the twelve tool accountability employees, including 'Sprague. 'Tr. 54)'lthough
Emanuel had intended to recall Sprague she began to rethink her decision aft:er the "yelling" incident that day.
(Tr. 54)
Xn that dent wh regard she spoke to her superior, Rich Smith 't:he site I
e superxnten-en w o xndhcated t:hat he vould approve Sprague's permanent lay off based on Emanuel representations that he was "loud and nobod really cared to work with him."
(Tr.. 55)
Emanuel remained is undecided, however, stating that she was "th t f
s willing to give. somebody a
second chance."
(Tr.
53)
The scheduled 'lay off was to be tvo to three weeks.
(Tr. 56)
The next day, on March 20,
- 1992, Sprague reported for a final body count prior to starting his lay off. According to Sprague he trainin accompanied Emanuel and the other laid off.
1 aining center to be checked out.
While waiting, Emanuel and one of the other crew members left the area, but Emanuel left the la off notices on the. chair next to Spraque H
t:
t'f'icked them up and looked through them.
There were four such included
- notices, one for each of the four laid off d'd 1
- Sprague, Sheya Atteberry, Michael Gantt and Amy Scrima.
Xn the section captioned "Eligible for Rehire" o not destroy badge.
Will be returning."
(Tr. 18-19; ire were the words Def. Ex. 1)
Emanuel testified, however, that the lay off slip for eli ible. f Sprague taken to the training center only noted th t h
'g' for. rehire because the "yes" was circled, but that the words "Please do not destroy bad e. Nill be r ge.
i e returning."
vere not rague s
ay off form.
Emanuel stated,.that she was still
~
unsure about: recalling Sprague back to work because of the ellin incident the day before.
(Tr. 63)
No testimon Emanuel that she did not 1 o
estmony was elicited from s e r
not leave the lay off forms on the chair next o
prague during her temporary absence from the training center.'hortly thereafter, each of the laid off em lo e a "full body count."
A full bod i
o emp oyees underwent 121 u
o y normally takes two minutes (Tr.
) Atteberry, Gantt and Scrima vere released.
- However, S ra e
goin tests t tests were abnormally high.
As a result he u
e spent two hours under-g es s to determine the extent of contamination.
(Tr. 17) conductin Emanuel testified that when the RP's were in the g..the full body count, Sprague responded b
holi in e process of the RP'heRP's.
She testified that Sprague persisted in "screaming" at y
o erring at durin her e RP's for approximately one hour.
(Tr. 59)
A d'cor a.ng to her, ositive f r g
enure as supervisor, other employees h
t d
p o
contam~natzon, but none have reacted so b ll'
~
~
ave este (Tr'. 88, 89 90 E
e zgerent y.
- includin S ra
)
manuel bela.eves that each of the'four empl g
p gue, received a copy of the exposure reports, which p oyeesg are documents that explain the results of the b d laymen's terms.
Tr.
6 o
e o y count test in
( r.
0)
She also heard Sprague ask for a copy of e
ody count, but she explained to him that he had a right to the exposure report but not the body count.
(Tr. 88, 89) h' Xn an attem t Co
'ascerta'g readin the RP'
'ertain why Sprague was.:receiving su h g
~s.repeated the t'.ests five'r six times.
(Tr.
c a
V
12l)
They concluded that the contamination was internal.
(Tr. 17)
Sprague testified that he did not become belligerent with the RP's, but he did express concern.
The RP..'s told him not to...worry, that the contaminants would flush. out of his system.short3.y,
. (Tr. 122) t: this point, Sprague requested..a copy of the body. count report.
The RP's refused his'. request.
(Tr. 17.,
30, 123)
After she observed Sprague's conduct with the RP's.during the testing procedure, Emanuel decided to permanently terminate his1 employment.
With regard to the lay off document that she h d t e
a o
thai 1 out for Sprague, it is her testimony that. the form'i at Sprague was terminated, which was submit:ted into evidence, is corn 1 a different one than the one Sprague examined.
She had p rt'l p eted a lay off document on three occasions because of her she w s ncertainty in discharging Sprague permanently.
She st t d h
a unhappy. with his attitude, but at the same time she did not
'ant to retrain a new employee.
(Tr. 61-63, 71, 7$ -76)
On March 19, she filled out the first form on which she indicated that Sprague would be eligible for rehire and wrote, "Please do not'estroy badge."
(Tr. 61-63, 75, 76)
On the second form, which she started to complete on the morning of March 20, she had simply indicated that he was eligible for rehire and nothing more.
This was the form that she contends that she brought with her to the training'ffice.
(Tr. 61-63)
After the incident on March 20, she discarded the second form.
On the third and last form she indicated that Sprague would not be 'rehired because of his "poor work quality and bad attitude."
.(Tz;,61-63;.Def.
Ex.
1)
- Sprague was not informed'hat his lay off would be. permanent..
Nben Sprague went home on March 20,.he was still concerned about his exposure level, so he contacted the Nuclear Regulatory Commission and spoke with Hr. James Isom.
Sprague inquired whether he was entitled to a copy of the full body count.
Isom said that he would have to find out whether this report could be released.
re ort Shortly therea fter, Isom called Sprague to inform h'h h
the co p
would be sent.
(Tr. 17, 125)
Sprague subsequentl en y receive d his undpies attached to a letter from Hr. Isom who wrote th t 't erstanding, based on the nuclear regulations, that "an e
a i was re orts.
r'a employer was not.required to give an. employee the
.bod p
Spr'ague stated that he did not know who Isom contacted e
~ o y count concerning his request.
(Tr. 125; Pl. Ex.
1) h On Friday, March 27, Sprague went to the ANR business office to pick up his check.
Attached to his paycheck was a notice informing him about upcoming safety meetings; (Tr.
20)
The following Monday, Sprague called Emanuel but she was unavailable.
return his call, so he called again the next morning.
(Tr.
21)
Emanuel told Sprague not to worry about the safety meetings and that he did not have to attend.
(Tr. 21)
Du
onversation Sprague asked how long the lay off would continue.
Emanuel responded that not everyone may be called back.to work.
Sprague then inquired as..to whether he would be returning and.she
6 indicated that she was not sure,
. because of the way things were handled."'Tr.
21)
Approximately a
week later, Sprague called the personnel office and spoke with Mike Smith who informed him that ANR would no longer be needing him.
Shen Sprague asked why he had been fired, Smith answered,'They did not say.
They just said that they did not need you."
(Tr. 22)
Regarding the phone conversation Emanuel had with Sprague on March 27, she explained Chat she did not tell Sprague that his'mployment was terminated because it was the responsibility of the personnel office to communicate such information to employees.
(Tr. 65, 84)
- However, Emanuel was unable to recall if she told Sprague to contact personnel.
(Tr. 85)
She also maintained that the personnel office had mistakenly attached a safety meeting schedule to his last paycheck.
Emanuel conceded that she never warned Sprague about the consequences of his poor behavior prior to his termination.
(Tr.
86)
She also testified that at no time had she spoken with an administrator from the NRC and she was completely unaware that Sprague had contacted the NRC until the suit against ANR was filed.
(Tr. 63/
64/
87)
Discussion:
At the outset, I note that on October 9-,.1992, Congress passed H.R. 776; the Comprehensive National Energy-Policy Act, which was signed into law by the President on October 24,
~ 1992.
This-Act contains several significant amendments to the whistle blower provisions of the Energy Reorganization Act of 1974, 5 5851 under which this case arises.
Included among those amendments are explicit coverage of internal complaints of employees as protected activity as well as modifications to the burden of proof analysis.
The amendments,
- however, have application only to complaints filed on'he basis of the statutes and relevant case law as it existed prior to the statutory amendments.'he relevant provisions of the Energy Reorganization Act are gound at 29 U.S.C.
5 5851, and provide as follows:
Employee Protection Sec. 210 (a)
No employer, including a.Commission
- licensee, an applicant for a Commission 'license, or a contractor or a subcontractor of a Commission license or applicant, may discharge any employee or otherwise dis-criminate against any employee with respect to his
~I note,:however, that'the'utcome:of this: case.would not have differed under the recent amendments.'.'
compensation, terms, conditions or privileges of employ-ment because the employee (or any person acting pursuant to a 'request of the. employee).
r
"(1) commenced, caused to be commenced, or is about to commence'r cause to be:coaugenced
.a proceeding under this Act.or the Atomic Energy Act of 1954, as
- amended, or a proceeding for the administration or.
enforcement of any requirement imposed under this Act or the Atomic Energy Act of 1954, as amended; (2) testified or is about to testify in any such proceeding or; (3) assisted or participated or is about to assist or participate in any manner in such a proceeding or in any othe'r manner in such a
proceeding or in any other action to carry out the purposes of this Act or the Atomic Energy Act of
- 1954, as amended.
In its post-hearing brief the Respondent argues in essence, that the Complainant cannot prevail because the Complainant did not participate in any Nuclear Regulatory Commission (NRC) proceeding, that the complainant's NRC contact was after the decision to terminate his employment and that, in any event, the Respondent was unaware of any NRC contact by the Complainant until the filing of the Complaint in this case.
The Respondent also appears to
~
. contend, or perhaps
. simply.. fails
=. to xecognize, that the
- Complainant's activiti'es. prior.Co his NRC.contact, which led to his
~: texm'ination,'.were such that they. were protected by the Act.
The purpose of the "whistleblower" provision of the Act is to "prevent the [investigating agency's]
channels of information from being dried up by employer intimidation." Deford, 700 F.2d 281, at
. 286(6th Cir. 1983), quoting NLRB v. Schrivener, 405 U.S. 117,
- 122, (1972).
To keep in line with this goal the statute should be read broadly.
An employee do'es not have to prove that he gave unique evidence to the NRC, nor does the information he relays have to be material that his employer wants hidden.
- Deford, 700 F.2d 281,.at 285.
Further, the statute has been interpreted to shield employees who make internal complaints.
The assertion that
.an employee's conduct.is on'ly'r'otected when he has contact with an outside agency frustrates the intent of the Act.
"A narrow, hyper-technical reading of 5 5851 will do little to effect the statute's aim of protection."
Kansas Gas a Electric Com an
- v. Brock, 780 F.2d 1505, 1512 (10th Cir. 1985).
The intent behind 5 5851 is not "merely to prevent employers from inhibiting disclosure of particular facts of types of information.":Deford 700 F.2d at 286.
For esarnple, the protected activity does not'ave to be the sort where an employee is putting forth information.
- See, for
- example, Lockert v. United States De artment of Labor, 867 F.2d
- 513, 518 (9th Cir. 1989) where the court accepted -the"Secretary's determination that researching:industry codes is-protected activity under certain circumstances;..
Reporting safety and quality problems internally to one' employer is a protected activity under the Energy Reorganization Act.
See Mackowiak v. Universit Nuclear S stems Xnc.,
735 F.2d 1159 (9th Cir. 1984);
Kansas Gas
& Electric Co. v. Brook
~Su ra Xn Brown a
Root
.Xnc. v.
- Donovan, 747 'F.2d 1079 (5th Cir.
1984), the Fifth Circuit-held that the filing of an intracorporate quality control report d.s not protected activity under the Energy Reorganization'Act of 1974, 42 U.S;C.
5 5851'(a} (3).
The Secretary of Labor, however, has declined to follow Brown 6 Root even within the Fifth Circuit.
See 'Hasan v. Nuclear Power Servs.
Xnc.
86-ERA;24 (Sec'y June 26, 1991); Bivens v. Louisiana Power 6 Li ht 89-ERA-30 (Sec'y July 26, 1988}; Rill v. The Coastal Co
- oration, 85-CAA-1 (Sec'y June 4,
1987).
Accordingly, X reject the Respondent's argument that the Complainant's lack of NRC contact prior to the decision to terminate him precludes a finding of a violation of the statute.
Xt appears that the Complainant, at least until the trial of this case took place, believed that the decision to terminate him was made sometime after he contacted the NRC on March 20.
- However, X am convinced that Emanuel, with the approval of her supervisor, Richard
- Smith, determined on March 20,
- 1992, to terminate the Complainant's employment, pri'or to his NRC contact.
The Complaina-nt's post-hearing brief ably'addresses
.the misperception of facts and he now 'argues that.the NRC'ontact
. is; irrelevant. if. the Respondent was terminated for other reasons proscribed by the Act.
That the Complainant thought he had been terminated because of his NRC contact is readily understandable.
He had not been told on March 20 that he was being permanently laid off.
On the contrary, he had seen a lay off slip prepared by his supervisor which indicated, at the very least, that he was to be recalled to work.
- Moreover, on March 27 he received a notice of a safety meeting with his pay check.
On the same day, in a conversation with Emanuel, she did not inform Sprague that he would not be recalled.
Hhen Sprague later learned that he was "no,longer needed,"
he obviously assumed that it was because of his earlier contact with the NRC.
h inference of unlawful discrimination, Texas De artment of Communit Affairs v.
- Burdine, 450 U.S.
- 248,
':.101 S.Ct.
1089 (1981).
To h
h',
she engaged in protected activity, that 'he or 'she was subject to adverse
- action, and that the employer~ was aware of the protected activity when it took the adverse action.
Larr
- v. Detroit Edison Co.,
86-ERA-32 (Sec'y June 28, 1991).
The complainant also must present evidence sufficient to raise the inference that the protected activity was the likely 'reason for the adverse action.
Direct evidence-is. not.required for. a'inding '.of causation.
The presence or
- absence'f-a"- retaliatory.
~:motive-is provable by circumstantial
- evidence, even".'if witnesses testify that they did
not perceive such a motive.
Ellis Fischel State Cancer Hos
. v.
- Marshall, 629 F.2d 563, 566 (8th Cir. 1980), cert. denied, 450 U.S.
1040 68 L.Ed.2d 237,.
101 S.Ct.
1757(1981).
'Accord Mackowiak v.
Universit Nuclear S stems Inc., Supra.
The Complainant: contends or March 20 that he vas engaged in protected activity when he, questioned the RP' about the levels of radiation detected and when he requested and vas refused a full body count report from the PR's.
This issue vill be discussed
**Sl'h'2 case are present here; specifically, the Complainant was subject to adverse
- action, and the Respondent was aware of the protected activity when it took the adverse action.
Here Emanuel testified that the reason that precipitated her decision to permanently lay off Sprague was for his activities with the PR s which, in her opinion, constituted unacceptable conduct.
Undeniably, Emanuel was aware of the activity, although it appears that she may not have been aware that it may have been protected.
The record in this case clearly supports a finding that the Complainant requested a
full body count report from the PR's out of concern for his safety.
Moreover, I find that his concern about radiation levels vas a
valid one, as his readings were abnormally high.
Further.,
since this was the.first time Complainant worked in the nuclear industry it is not unreasonable to infer that he may have been more sensitive to an abnormal deviation from acceptable readings.
It
- 'would disserve.the: protective.purposes of the Act if an employer was free to fire an employee for requesting information concerning the amount of.radiation:to,which he had been exposed, or, in this case because he asked for the information in a
manner deemed unacceptable to the Respondent.
I find that Sprague's questioning of the PR's was a legitimat'e health and safety concern which afforded him the protection of the statute.
The next question is whether Sprague's conduct and his criticism of the PR's, directly to them and later to Emanuel, was such as to remove it from the-protection of the Act.
In his post-hearing brief the Complainant argues that his conduct was not so unduly disruptive or indefensible on its face that it would lose its protected status under the Act. I agree.
It is not difficult to imagine thaterson undergoing two hours of testing for radioactive contamination, with the potential consequences therefrom, xather than being glowingly warm, polite and cordial, might actually get a little annoyed, even upset.
The Secretary of Labor has recognized that '"intemperate language," "impulsive behavior" and even alleged "insubordination" often are associated with protected activity:
In general, employees engaged in statutorily-
.protected. activity may not be disciplined for insubordinat'ion st long as
',the activity.
.(claimed to be insubordinate) is lawful and
10 the character of the conduct is not indefensi-ble in its context.'he right to engage in statutorily-protected activity permits some leeway for impulsive behavior, which is bal-anced against the employer's right to maintain order and respect in its business by correct-ing insubordinate.. acts.
A key inquiry is whether the employee has upset the balance that.
must be maintained between protected acti.vi.ty and ship discipline.
The issue of whether an employee's actions are indefensible under the circumstances turns on the distinc-tive facts of the case.
Kennewa
- v. Matlock Inc., 88-STA-20, Sec'y of Labor sli o
6-7 (June 15, 1989) or, s ip op. pp.
I find that the Complainant's behavior was not so indefensible Cll so as to deprive him of the protection of the stat t G'
e.
iven the term'umstances
.upon which the Respondent relies to f S
gus i y prague's ination I find that his conduct did not rise to a level that impeded the orderly operation of the Respondent's b
n s
usiness activi-ies.
n particular, the yelling incident of March 19 where Sprague allegedly criticized the RP's for permittin i b contamination in the containment area is made less meaningful by Emanuel's own criticism of the RP's made at, t testified that the RP s
waited too long" to spray down the walls
/
II e
a ria when she (Tr. 51)
Mor and that they (the RP's)
"could not figure out h t u
w a was going on "
- oreover, the fact that Sprague may have been upset at standable a
the RP'.s during his final body count as noted ab o e ove, is under-radiation re d and perhaps justified in view of the abnormal t f h i y 0 is ersonall adings.
Because Emanuel found Sprague's b h s
e avior his conduct.
In p
y offensive does not detract from the protect d
t f
e na ureo n this regard, I also note that the Respondent Sprague.
failed to produce any of the RP's who were allegedly mi t t d b
's rea e
y Emanuel apparently included the above reasons in her co 1
ionar charact er conc us-i.e.
"ba y
erization of the reasons for Sprague's term
II ermina ion; ad attrtude.'n a strained attempt to b tt h
p
'ty of the reasons for Sprague's termination th R
lausibili u
ress t e dent resen p
ted the testimony of William Norton who was at the time e
espon-of trial employed by ANR as a tool.accountability technician.
He testified that he worked with Sprague and that
pra ue was n
a in is opinion, prague was pushy, abrasive and controlling.'orton stated that he found it difficult to get along with Sprague.
(Tr. 113}
H i ied that Sprague had never been
'rude to him and r.
- owever, he had never seen Sprague act rudely to fellow employees.
r Based on the foregoing 'and.the.record as a whole I f' th t.
o duct did..not warrant his termination not in a
withstanding his: protected:.activity...
IXn"making this finding I
in ingI
jl note the lack of documentation of any complaints or di 1
actions against
- Sprague, the absence of any warning to him that, his directed at non-conduct was unacceptable and the fact that his
't's cri icism vas e
a non-employees of ANR, since the RP's vere apparentl employed by another contractor.
en y
, ~ l termiLikewise, I find'he other. expressed reaso f
S n
or prague' Emanuel
- ination, namely, "poor work quality" to be equall 1
~
~
~
y merit ess.
items vhtestified to a single incident that:
Sprague 1
en there was no need to do so.
After she spoke to him he gue was ogging "vent about his business" (Tr.
48-49)
At best this incident reflects a
misunderstanding of procedure b
S instance of
" o poor work quality."
On the contrary Spra ogging everything in seems to be consistent with
~
~
rague s
Emanuel's own testimony that tool accountability technicians "take care of monitoring anything and everything" (Tr.
42) disci linar act'p c ion vas required.
Furthermore, there were no other instances of "poor work quality" which compels the conclusion this reason was pretextual in nature.
I so find.
==
Conclusion:==
On the record before me I find that t:he termination of Gregor A. Sprague vas in violation of Section 210 of th E
zation Act.
Accordingly, I enter the following:
o e
nergy Reorgani-RECOMMENDED ORDER 1.
That the Respondent make Gregory A. Sprague whole for an unlawful losses he may have suffered as a result f th discriminatory lay off.
In this regard, back pay is assessed from the date of lay off (March 20, 1992) and continuin thereafter until an offer of reinstatement i d
his former or e men is ma e to Sprague to corn uted bar or equivalent position of employment.
Backp t
b ay is o
e techni p
sed on the average hours worked by tool t b'1
'cians over the period of time the Complainant would have been employed but for his unlawful termination If th onger exists, back pay is to be computed to the date
.on which the position was eliminated.
Backpay is to b ff earnin s
but n g,
u not by unemployment compensation
- received,
,as that is an obligation of the Complainant to repay.
2.- Any adverse reasons stated in the Complainant's personnel file for termination shall be expunged and such reasons h 11 be used a ainst hi g
im in the event he applies for any future ns s
a not employment opportunities with the Respondent.
le al fees a
3.
The Respondent is to reimburse the Complain t f 11 an or a
tion.
In tha g
nd expenses incurred in connection with th' t'si iga-
.thirty (30) da s-of th that
- regard, the Complainant's counsel shall
-o e date that this order becomes final, submit s a, wit in
l2 Re an itemized fee petition to the undersigned.
Ther ft espondent shall have thirty (30) days to submit-any b'rea ter, the thereto.
mi
- any o sections 4
The amount of back pay due to the complainant and the amount of attorney fees for which the Respondent w ll b l'l be determined zn a
Supplemental Decision and Order to be issued in due course after this order becomes final.
DANIEL ROKETENETZ Administ ive Law Judge
13 SERVICE SHEET Case Name:
William Dan DeFord v. Tennessee Valley Authority Case No.:
90-ERA-60 Title of Document:
ORDER A co parties: copy of the above document was served on th f ll e
o owing Administrator, Employment Stan-dards Administration Wage and Hour Division U.S. Department of Labor Boom.S-3502, FPB 200 Constitution Avenue, N.W.
Washington, D.C.
20210 Deputy Associate Solicitor Div. of Fair Labor Standards Office of the Solicitor U.S. Department of Labor Room N-2716
. 200 Constitution Avenue, N.W.
Washington, D.C.
20460 4
Director, Office of Enforcement U.S. Nuclear Regulatory Commis-sion Washington, DC 20555 Gre or A. Sprague David P. LaForge, Esq.
- Burhans, LaForge
& Berger 505 Pleasant
- Stxeet, Ste.
204 St. Joseph, MX 49085 American Nuclear Resources, Xnc.
Cook Nuclear Facility
- Bridgman, MX 49106 Kevin M. McCarthy, Esq.
Miller, Canfield, Paddock
& Stone 444 West Michigan Avenue Kalamazoo, MX 49007-37S2 Deputy Assistant General Coun-sel for Enforcement U.S. Nuclear Regulatory Commis-sion Was'hington, D.C.
205S5 Daniel H. Ocharzak District. Director U.S. Department of Labor Wage and Hour Division 2920 Fuller N.E., Ste.
100 Grand Rapids, MI 49505 (i..
ANN M.
LAWRENCE Legal Technician
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