ML20028G270

Response in Opposition to Citizens Assoc for Sound Energy 830118 Motion for ASLB Order Directing NRC & Applicants to Provide Potentially Significant Documents.Prima Facie Case Not Presented.W/Certificate of Svc

ML20028G270
Person / Time
Site:	Comanche Peak
Issue date:	02/02/1983
From:	Reynolds N DEBEVOISE & LIBERMAN, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8302070578
Download: ML20028G270 (86)

Text

. .

iggcen February , N83J ,

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION .

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

TEXAS UTILITIES GENERATING ) Docket Nos. 50-445 and COMPANY, _e t _a l . ) 50-446 (Comanche Peak Steam Electric ) (Application for Station, Units 1 and 2) ) Operating Licenses)

APPLICANTS' ANSWER TO CASE'S MOTION FOR DOCUMENTS Pursuant to 10 C.F.R. s 2.730(c), Texas Utilities Generating Company, et al. (" Applicants"), hereby submit their answer to CASE's " Motion for Board Order for NRC Staff and Applicants To Provide Documents," served January 18, 1983. CASE moves that the Atomic Safety and Licensing Board (" Board") in this proceeding order the NRC Staf f and Applicants to produce certain " documents" which CASE contends are "of a potentially significant nature".

The documents which CASE seeks include meeting notices and summaries, a udit s , I&E Reports, reviews by Applicants of Comanche Peak design and construction, NRC Staff material concerning their ongoing investigation and preparation of testimony regarding pipe hangers, and "any other [ documents concerning] potentially significant matters pertinent to the issues in these proceedings."

8302070578 830202

{DRADOCK 05000445 PDR bb

1. OBLIGATION TO DISCLOSE NEW, RELEVANT AND MATERIAL INFORMATION Based upon CASE's motion, it appears tnat CASE is unable to distinguish between new, relevant and material information that the parties are obligated to provide to the Board on the one hand, and extraneous or insignificant information that would simply overburden the Board on the other. The only other conclusion is that CASE is indiscriminate 1y calling all types of information to the Board's attention, thereby shirking its responsibility to determine whether information is truly new, relevant and material. By so doing, CASE transfers its burden to 1

screen information to the Board, a result not' envisaged by the case law and not proper as a practical matter. That caselaw is discussed brie fly below.

A. Obligation of Parties to Inform Board of New Information All parties are required to inform the Board of " changing circumstances bearing on their cases." Duke Power Company (McGuire Nuclear Station, Units 1 and 2), ALAB-143, 6 AEC 623, 625-26 (1973); (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397, 406 (1976). Such circumstances include "new information which is relevant and material to the matters being adjudicated," absent which the Board would be making a decision "upon evidence which would not accurately reflect existing facts." Georgia Power Company (Vogtle Nuclear Plant, Units 1 and 2), ALAB-291, 2 NRC 404, 411 (1975); McGuire, ALAB-143, supra, 6 AEC at 625-26. In determining whether information is material,

1 1

parties must look beyond the traditional " capable of influencing the decision maker" definition and exercise " simple good judgment" considering the " context and stage of the licensing process" to avoid burdening the record with " extraneous matters and possibly distracting the boards and parties from the more serious issues." Consumer Power Company (Midland Plant, Units 1 and 2), ALAB-691, 16 NRC (September 9, 1982), slip op, at 28-29.

Parties must also disclose new information which would necessitate " modifications and rescissions of important evidentiary submissions" to avoid a Board's reliance "on outdated, i.e., incorrect, in forma tion. " Tennessee Valley Authority (Browns Ferry Nuclear Plant, Units 1, 2 and 3 ) , ALAB-677, 15 NRC 1387, 1393-94 (1982). However, that responsibility includes a duty to evaluate potentially discloseable matter to exclude information that is routine and insignificant.

Commonwealth Edison Company (Byron Station, Units 1 and 2), ASLB Memorandum and Order (October 12, 1982), slip op. at 4-5. All parties are responsible for assuring that only information concerning new or changed circumstances that is relevant and material to the adjudication is provided to the Board. Id at 5-

6. Any other standard could lead to concealment of important information in the morass of routine and insignificant matter, or influence of the Board by unsworn representations of a party.

1 Id. at 1-2, 5. In any event, disclosure may properly be accomplished through correspondence or presentation of evidence at an oral hearing. Id. at 6.

In its Memorandum and Order dated January 4, 1983, the Board reminded the parties of their duties "to inform the Board promptly of new facts or developments" (Id., at 5), and noted its view that the Applicants and NRC Staff should have forwarded to the Board the Recommended Decision on the Atchison matter by a Department of Labor Administrative Law Judge. Our understanding of the case law is that potentially significant information must be provided in such a manner and at such time as to preclude any possibility that decisionmaking by the Board is based upon inaccurate or outdated information. Knowing full well in December that a decision by the Board was several months away, we saw no need to provide the DOL Recommended Decision to the Board a t that time. We questioned the importance of the DOL Recommended Decision to this case in view of its tentative nature. Applicants knew that the DOL Recommended Decision would be appealed to the Secretary of Labor, and thus considered it merely an interim step in the Department of Labor's decisionmaking process.1 We also questioned the importance of the Recom:nended Decision in view of the fact that it was based upon testimony which the Board did not observe and could not 1 perhaps Applicants should have advised the Board that an appeal from the DOL Recommended Decision would be taken. However, we could not in any event have shed any light on whether " DOL adjudicatory practice renders a reversal likely." Memorandum and Order, at 6.

independently weigh (see Applicants' Answer dated December 23, 1982). The Board's comments during the July hearings contributed to this latter viewpoint (Tr. 2670).

In any event, Applicants have duly noted the Board's view and will endeavor in the future (as in the past) to fulfill the Board's directives and our responsibility to keep the Board apprised of potentially significant information. 2 we will continue to attempt to strike the reasonable balance contemplated by the caselaw between the duty to provide the Board with pertinent information on the one hand and the duty to avoid overburdening the Board with extraneous or insignificant in formation on the other. Perhaps to assist the parties in this regard the Board could provide its views on the question of timeliness, materiality and significance of items to be disclosed. This should preclude a recurrence of the situation above. At a minimum, the intervenor should review the caselaw (and particularly Byron, supra) and familiarize itself with its responsibilities as a party. This should slow the intervenor's race to notify the Board every time any document (including newspaper articles) even remotely bearing on the case becomes available and eliminate the stream of pleadings and documents that the intervenor repeatedly attempts to foist upon the Board and the parties.

2 Attached hereto for the information of the Board is the brief l

of Brown & Root appealing the Recommended Decision to the l Secretary of Labor. In view of the Board's interest in the l Recommended Decision, we thought that it might likewise wish to l

review the appellate brief.

o B. Information Sought by CASE Not Within Scope of Disclosure Obligation

1. Meeting Announcements and Summaries CASE requests production of summary notes of a December 16, 1982 meeting between Applicants and the NRC Staff and "any information" pertaining to meetings subsequent to December 16 regarding an Independent Design Verification Program ("IDVP") for Comanche Peak. Motion at 2, 5. CASE asserts without specification that an IDVP "is pertinent to CASE's Contention 5 and specifically to the Walsh/Doyle allegations." Motion at 2. '

The Board was explicitly advised of the IDVP months ago (NRC Staff Response dated October 11, 1982, at 20), and most likely was cognizant of the IDVP concept long before that. IDVP is a regulatory tool utilized by the Staff during its review to confirm that plant construction is in accordance with the appl ication . The meeting between Applicants and the Staff involving IDVP described at length by the intervenor was one of many meetings on different subjects that the Staff and Applicants have had as part of the Staf f's routine review. There was nothing extraordinary about the meeting, other than the fact that the intervenor happened to have someone in attendance. Nothing in that meeting gave rise to significant new information that is relevant and material to an issue in controversy. There is every expectation that the IDVP will provide the necessary confirmation, and no basis for concluding otherwise.

Nevertheless, as the Staff indicated in its October 11 Response (at 20), if the IDVP casts doubt on the adequacy of Applicants'

. D OA/QC program, "such information could provide the basis for a motion to reopen the record by the Staff or any other party." So postured, there is nothing at this time to disclose to the Board, and the approach advocated by the intervenor would distort the intent of the disclosure requirements and overburden the Board with useless information. Common sense dictates a different approach. See Midland, ALAB-691, supra, slip op. at 28-29.

2. INPO Review and FSAR Verification Program The nuclear industry has taken many initiatives independent of the NRC to assure that nuclear power reactors have been designed and constructed properly. Among these initiatives is a utility self-evaluation of implementation of design and engineering criteria performed under the auspices of the Institute for Nuclear Power Operations ( "INPO ") at facilities nearing completion. This self-evaluation is not an NRC requirement, but rather is conducted voluntarily by applicants.

Such a self-evaluation for Comanche Peak was performed by Sargent

& Lundy under contract to Applicants. As with the IDVP, this review involves various areas of the plant and concerns different aspects of design and construction. It was formally submitted to INPO on January 21, 1983, and was provided to NRC Region IV shortly thereafter. We will gladly provide the Board with copies of the self-evaluation if it so wishes. In fact, even though we hesitate to burden the Board with this two-inch thick document, it i

it could aid the Board in providing guidance to the parties on the level of detail to which the Board wishes the parties to delve in satisfying their obligations to notify the Board.

~The-FSAR' System Compliance Verification Program is a self-initiated review by the Applicants' OA Department that has been ongoing for approximately two years. It is designed to verify by sampling that commitments made in the FSAR have been met. The system selected for the Verification Program is the Service Water System. Commitments verified include system design, equipment 1

performance and installation, materials and plant administration, and operating procedures. CASE would require production of literally every piece of information on this program. Motion at

6. In our view, the FSAR Verification Program has not produced any significant new information relevant and material to issues in this proceeding.

CASE has again confused the mere existence of these programs, which may or may not involve matters relevant to this proceeding, with the disclosure of new information that is relevant and material. Again, CASE's twisted reasoning would require providing the Board with the minutia of Applicants' self-initiated programs which have generated no significant new information at this time. If this program reveals any new in fo rma tion, such information will be provided to the Board and parties in a timely fashion. CASE's instant request is, however, inappropriate and chould be denied.

l l

l i

t l

l l

I

3. Audits CASE requests the production of a recent audit on NPSI hanger designs conducted by Applicants. Motion at 3, 6. CASE i

~ ~ ~ ~

once again has confused the existence of a routine activity" dealing with the general subject matter of one of the issues being litigated, with the discovery of new information relevant and material to the proceeding.

Audits on virtually all aspects of design and construction at Comanche Peak are performed routinely, including audits of activities that may have been the subject of litigation in this proceeding. However, unless those audits produce new information which could alter evidence already in the record or otherwise be s ignificant to a decision in this proceeding, they are not within the scope of the matters which need be disclosed. CASE's reasoning would require the submission to the Board of hundreds of pages of audits performed every month, on activities

" pertinent" to issues in this proceeding, regardless of the relevancy and mater.iality_of the information contained in those a ud its . Such an approach would defeat the intent of the l disclosure obligations. Further, it is this philosophy that has driven CASE to clog the record with hundreds of repetitious and insignificant documents, a practice criticized by the Board on several occasions. CASE's request therefore should be denied.

4. Analyses of Pipe Supports CASE argues that Applicants and the NRC Staff should produce their analyses of "the pipe support problem." CASE evidently is referring both to Applicants' responses to NRC Staff inquiries regarding pipe supports arising from the Staff's investigation of this issue, and the Staff's investigation itself. CASE continues, however, to confuse the mere existence of a review of a matter relevant to litigated issues and the discovery of new_ _____

information, relevant and material to the proceeding or which would alter evidence previously submitted.

In this instance, Applicants have already presented extensive testimony on this subject, and undergone lengthy cross-examination by CASE. Should Applicants discover any new information which materially alters that testimony, such information should and will be provided to the Board and parties.

However, mere responses to NRC Staff questions or additional review of matters already addressed at the hearings are not within the scope of information required to be provided. -_

Similarly, the NRC Staff is conducting an investigation into the matter which will be documented in an I&E Report which will certainly be forwarded to the Board. Thus, the Staf f's conclusions and position on these matters will be seasonably presented. Premature disclosure of such information is non-productive and wholly inappropriate.

l l

l e . - -

5. Steam Generators CASE argues that Applicants and Staff should have " reported promptly" to the Board information presented in a newspaper article regarding the steam generators for Comanche Peak. Motion at 4-5. CASE admits it was aware of ceneric questions regarding Westinghouse steam generators. Nevertheless, it attributes to "the digging of a newspaper reporter" the revelation that the Westinghouse steam generators at Comanche Peak are of the type which are being studied generically by NRC, and asserts that somehow this triggers the need to " disclose" the matter to the Board.3 Motion at 7. CASE has clearly ignored its responsibility as a party to refrain from falsely citing items of common and long-standing knowledge as new and significant matters of concern. The Board will recall (if CASE does not) that fo rmer intervenor ACORN sponsored a contention involving, inter alia, steam generator vibration (Contention 19) (see ACORN Supplemental Petition, May 7, 1979 ac 18) which was dismissed over a year ago.

Board Order, January 12, 1982. CASE's weak attempt to resurrect this contention by citing the disclosure obligation is transparent at best and should be rejected. The issue is not new nor does it bear on the issues in controversy.

3 We assume that the Board gives no credence to newspaper '

articles, which are often inaccurate, unreliable or biased. This intervenor is inclined to rely (and implore the Board to rely) on unverified facts contained in newspaper articles, a practice which is unfair to the other parties and inappropriate as a matter of administrative law. See e.g., Illinois Pcwer Company (Clinton Power Station, Units 1 and 2), LBP-75-59, 2 NRC 579, 587 (1975).

6. I&E Reports CASE argues that all I&E Reports " pertinent" to " issues at hand in these proceedings" should be provided to the Board.

Motion at 6. Once again CASE confuses the subject matter of a given document and the significance of the information contained therein. Should an,y information be disclosed in I&E Reports which is both relevant and material to issues in this proceeding, we are cc t that' the NRC Staff will provide them to the Board. There is no reason to conclude otherwise. Contrary to CASE's assertion, the mere fact that an I&E Report concerns matters possibly relevant to these issues does not, however, dictate that the Report be furnished to the Board.4 Accordingly, CASE's motion regarding the production of I&E Reports should be denied, and the Board should await the Staff's views on the subject. See n. 4, supra.

II. UNAUTHORIZED DISCOVERY FROM APPLICANTS AND NRC STAFF Another point is worthy of brief discussion. In the past, CASE has on many occasions engaged in conduct that either flaunted NRC Rules of Practice or was contumacious of the Board's authority. Certain instances come to mind, such as the several unfounded requests for reconsideration of Board orders or the 4 The NRC Staff transmitted several I&E Reports to the Board by letter dated January 24, 1983. The Staff therein indicated it was assessing those Reports to determine whether a motion to receive any of them into evidence was appropriate.

stubborn refusal (in spite of clear directives from the Board) to refrain from overburdening the record with cumulative and immaterial documents.

The instant motion by CASE appears to be another attempt by CASE to flaunt the NRC Rules. It appears to be an attempt to i

take discovery from the Applicants and NRC Staff under the guise .

of the disclosure obligations of the parties. As demonstrated above, CASE's interpretation of those disclosure requirements is i blatantly erroneous and in direct conflict with applicable NRC case law. Stripped of their c] oak of " disclosure obligations,"

CASE's requests are simply attempts to take unauthorized discovery.

Even assuming CASE reasonably believed its arguments were meritorious, CASE's requests are in substantial part beyond the scope of even its own interpretation of Board notification requirements. For example, since CASE was represented at the December 16, 1982, meeting regarding the IDVP, it was aware of the broad scope of that program. With that knowledge, CASE's assertion that those efforts are in toto "specifically" pertinent f to the Walsh/Doyle allegations regarding pipe supports is misleading at best. Motion at 2. Further, the request for information regarding steam generators is clearly not pertinent to issues in this proceeding. In addition, I&E Reports (which CASE is surely aware often concern only unsubstantiated or l

refuted allegations) are not always relevant and material to issues in this proceeding.

l

Perhaps the aspect of CASE's requests which most dramatically demonstrates that CASE seeks to conduct discovery through its motion is the scope of those requests. CASE seeks information or documents on subjects " pertinent" to the issues in this proceeding and also " handwritten notes or information," "any results," " concept, procedures, reports regarding, notes concerning (including handwritten notes), preliminary report, final report, monthly status report," " draft report, final report, etc.," and "all information i.icluding reports, draft reports, handwritten notes, etc." Motion at 5-6. Such a description is clearly intended as a fishing expedition in the nature of discovery, and not for purposes of notifying the Board of new information. The Board should admonish CASE to comply with the Rules of Practice or to openly seek leave of the Board for an exception to them. CASE should not be permitted through this underhanded tactic to circumvent the Rules.

III. CONCLUSION For the foregoing reasons, CASE's motion for production of documents is without merit and should be denied.5 In view of CASE's perception that it is the ombudsman assigned to oversee the overall conduct of this proceeding, perhaps the Board should provide guidance to the parties on disclosure obligations (and 5 CASE briefly mentions in the instant motion a question which is also the subject of its January 24, 1983 CASE Motion for l Protective Orders. That question concerns the status of i Applicants' employees who allege knowledge of non-conforming conditions but who refuse, at the direction of CASE, to specify their concerns for the Applicants or the NRC. Motion at 7.

Applicants will address this matter in their response to CASE's January 24, 1983 Motion.

l

direct CASE to comply with that guidance) so that the blizzard of pleadings by CASE and its obvious attempts to curry favor with the Board and in the press will cease.

Respect submitted, h s Nicholay S'. Reynolds '

William A .' dorin l

DEBEVO{pE LIBERMAN 1200 SWe eenth Street, N.W.

Washington, D.C. 20036 (202) 857-9817 Counsel for Applicants February 2, 1983 i

F l

l i ,

I i

l

. ~.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

TEXAS UTILITIES GENERATING ) Docket Nos. 50-445 and COMPANY, et--

al . ) 50-446

)

(Comanche Peak Steam Electric ) (Application for Station, Units 1 and 2) ) Operating Licenses)

CERTIFICATE OF SERVICE 1

I hereby certify that copies of the foregoing " Applicants' Answer to CASE's Motion for Documents," in the above-captioned matter were served upon the following persons by deposit in the United States mail first class postage prepaid, this 2nd day of February 1983:

Marshall E. Miller, Esq. Chairman, Atomic Safety and Chairman, Atomic Safety and Licensing Board Panel Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Lucinda Minton, Esq.

Dr. Kenneth A. McCollom Atomic Safety & Licensing Dean, Division of Engineering Board Architecture and Technology U.S. Nuclear Regulatory Oklahoma State University Commission Stillwater, Oklahoma 74074 Washington, D.C. 20555 Dr. Richard Cole, Member Marjorie Ulman Rothschild, Esq.

Atomic Safety and Licensing Office of the Executive Board Legal Director U.S. Nuclear Regulatory U.S. Nuclear Regulatory

. Commission Commission l Washington, D.C. 20555 Washington, D.C. 20555 Chairman, Atomic Safety and Licensing Appeal Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l

= -_ . .

David J. Preister, Esq. Mr. Scott W. Stucky Assistant Attorney General Docketing & Service Branch Environmental Protection U.S. Nuclear Regulatory Division Commission P.O. Box 12548 Washington, D.C. 20555 Capitol Station Austin, Texas 78711 Mrs. Juanita Ellis President, CASE 1426 So t Folk Street Dallas, T as 75224 I

Nichola S IReynolds cc: Homer C. Schmidt

• Spencer C. Relyea, Esq.

i e

I.e -.

/

U, UNITED STATES OF AMERICA BEFORE THE SECRETAi f OF LABOR CHARLES A. ATCHISON, $

Complainant, $

vs. CASE NO. 82-ERA-9 BROWN & ROOT, INC. $

Respondent.

MOTION FOR LEAVE TO FILE STATEMENT OF POSITION AND EXCEPTIONS Comes now the Respondent, Brown & Root, Inc., in ,

~

the above-captioned matter, and requests of the Secre-tary of Labor leave to file the attached Statement Of Position And Exceptions In Opposition To The Recommended Decision Of Administrative Law Judge Ellin M. O'Shea,

] which Recommended Decision is currently pending before the Secretary pursuant to 42 U.S.C. 5851 and 29 C.F.R.

$ 24.6 (1982). As is more fully discussed in the State-ment Of Position submitted herewith, the Recommended Decision in this case raises complex issues of profound importance to the Secretary's faithful discharge of his statutory responsibilities, and Respondent offers its Brief to facilitate the Secretary's ef forts to review

.'s I.,

all pertinent factual and legal questions in order to reach a just, equitable and legally sound disposition of this case. l Respectfully submitted,

- -- -- hk f,kg/5 M'cLa in ,

A)h Peter R. Eduire l

Brown & Root, Inc.

Legal Department (01-7th)

P.O. Box 3 Houston, TX 77001 (713) 676-5491

--. ---- --- DEB EVO IS E & LIBERMAN 1200 Seventeenth Street, N.W.

Washington, D.C. 20036 By:

W -

Wayrfe S. Bishop' /

Richard K. Walker /

Bruce L. Downey FILED, by first class mail, postage prepaid, this 17th day of January, 1983.

Io Is ,

UNITED STATES OF AMERICA BEFORE THE SECRETARY OF LABOR 4

CHARLES A. ATCHISON, Complainant, I 5

i vs. $ CASE NC. 82-ERA-9 4 BROWN & ROOT, INC. I

! Respondent. 5 I

BROWN & ROOT'S STATEMENT OF POSITION AND EXCEPTIONS IN OPPOSITION TO THE RECOMMENDED DECISION OF ADMINISTRATIVE LAW JUDGE ELLIN M. O'SHEA I. Summary of Major Reasons Necessitating That The Secretary Reject The Recommended Decision The Recommended Decision in this case must be rejected because it would have the Secretary of Labor ignore the delicate but vital balance en, trusted by Congress to the Sacretary in the protection of employee rights, legitimate management prerogatives, and the public i safety incident' to the construction of nuclear facilities under Section 210 of the Energy Reorganization Act ("The Act"), 42 U.S.C. $5851. The Administrative Law Judge's

("ALJ") Recommended Decision would have the Secretary publicly embrace the improper proposition that the interests of public safety and management prerogatives must yield whenever an employee seeks to shield himself from appropriate disciplinary action behind " whistle-i .

.-- _ - , . . , , , , , , , , < - , . - - y--v,,-

e 's blower" activities, whether or not those activities are legitimate. In particular, in this case, the Recommended Decision would expose the Secretary to acute embarrassment with regard to his responsibility for the proper administration of the Act, as follows:

(1) It would require reinstatement to a sensitive quality control position in the construction of a nuclear facility, a position as to which the occupant's integrity and reliability must be undoubted, the Complainant herein, whom the ALJ herself found:

(i) had lied about his qualifications for employment with the Respondent, (ii) had falsified documentation entrusted to his custody in the course of his employment with Respondent, (iii) had in a Nuclear Regulatory Commission legal proceeding made ,

" misstatements at points under oath" (Rec. Dec. at 3), and (iv) was so '

lacking in credibility that the ALJ stated she could give " weight to...

[his] representations only when corroborated by other evidence of record over which he had no control..." (Rec. Dec. at 4).

(2) It would have the Secretary adopt a construction of the concept of

" protected activity" so broad as to immunize from performance-related adverse actions all quality assurance /

quality control inspectors employed to make routine inspections by nuclear facility construction contractors and I so broad as to raise the spectre of literally hundreds or even thousands of actions brought under the Act by disgruntled employees with garden-variety personnel problems such as incompetence or failure to follow instructions. If allowed by the Secretary to stand, the ALJ's approach would not only divert the resources of the Secretary from the legitimate l complaints of employees who have

suf fered retaliation because of their

! 1

!, c'o i exercise of the protected right to cciamence or participate in legal or administrative proceedings, but it f would dilute the effectiveness of

( quality assurance / quality control programs by effectively placing incompetent, and even malevolent, inspectors beyond supervisory control.

(3) It would effect a gross distortion of the proper allocation of the burden of proof expressly endorsed for such cases by the Secretary of Labor in Heddon v. Conam Inspection, Case No. 82-ERA-3 (June 30, 1982),

consistent with the burden allocations enunciated by the Supreme Court in Texas Department of Community Affairs

v. Burdine, 450 U.S. 248 (1981), by finding a prima facie case to have been made despite Complainant's failure to adduce any evidence on critical elements of his case, and by imposing on the Respondent the burden of proving by a preponderance of the evidence that the legitimate '

nondiscriminatory reason articulated as the basis for Complainant's discharge was in fact the reason for his termination.

Any balanced interpetation of the Act on this record would avoid the interpretations leading to these results.

We urge the Secretary to make a careful analysis of the record in order that the sound administration of this important legislation might be fostered. To assist in highlighting the many inaccuracies and misapprehensions of law that permeate the Recommended Decision, we set forth below a detailed statement of the factual setting and legal issues that dictate the just result in this case --

that the Complaint be dismissed.

3-

le so II. Factual Summary Respondent is the general contractor in the construction of a nuclear power generating plant located I near Glen Rose, Texas (herein referred to as " Comanche Peak" or "the Site"), and owned by and to be licensed to Texas Utilities Generating Company (herein referred to as "TUGCO"). At Comanche Peak, Respondent is constructing

-__ two separate generating units. During relevant times herein Respondent employed over 4.000 employees, with approximately 400 employees assigned to the Quality Assurance and Quality Control departments (herein referred to as "QA" and "QC," respectively) of Respondent and TUGCO.

Comanche Peak's QA/QC department is charged with the responsibility of inspecting numerous nuclear safety-related components and on-site work performed on the components. This function is divided into two separate departments -- the ASME l QA department and the non-ASME department. The ASME department is governed by the ASME Code and is the responsibility of Respondent, while the non-ASME department, which inspects using criteria other than those in the ASME Code, is the responsibility of TUGCO. Respondent has assigned its employees to work in 1 American Society of Mechanical Engineers (herein referred to as "ASME").

J H both departments, although those employees of Respondent assigned to the non-ASME department are under the upper-level supervision of TUGCO managers.

Complainant, Charles A. Atchison, was employed at the site by Respondent as a QA/QC field inspector at the time he was terminated on April 12, 1982. The decision to terminate was made by Gordon Purdy, Respondent's On-Site QA Manager, after Complainant was transferred out of ,

TUGCO's OA/QC department, to which he had been detailed several weeks. earlier. Complainant's trans fer back to Respondent was effected at the behest of Tc= Brandt, TUGCO's QA/QC Supervisor. After_ the transfer, Purdy inquired.as to whether an opening existed or could be j created with any of the four supervisors working under Purdy whose area of responsibility included work for which Atchison appeared to be at least arguably qualified.

Concluding that he could not place the Complainant elsewhere in the operation, Purdy then decided to terminate him. TR 704-710, 734-740; NRC 2508, 2510-2513; NRC Ex. 199, p.15.2 2 Citations with the prefix "TR" refer to pages of the official transcript of the August 19-21 Labor Department hearing held before the ALJ; numbers with the prefix "NRC" refer to pages of the official transcript of the Nuclear Regulatory Commission licensing hearings; numbers with the prefix "UEA" refer to pages of the certified copy of the official tape of the Unemployment Compensation hearing l conducted June 1 and numbers with the prefix "UE" l refer to the court stenographic copy of the resumed  :

Unemployment Compensation hearing conducted June 4.

(footnote continued) 9 -- ,-,

3 f

, i .

l l

Brandt had resisted the assignment of Complainant to his department in the first place, in part based on a meeting between Brandt and Complainant (when the latter i

had bcen Training Coordinator for Respondent), in which Complainant had left Brandt (a highly qualified welding inspector) with the definite impression that his (Complainant's) knowledge of welding inspection criteria was sorely deficient. TR 570-573, 607-10. In addition, Brandt had been informed by some of his Lead Inspectors that "'Atchison is stirring up the pot to the extent that he's got the Inspectors worked up thinking they can go to work at [ Washington Public Power Supply System],' which was [ sic] at that time four other nuclear power plants in Washington State, and that Mr. Atchison was trying to find jobs for them." TR 569-70,'661. Further, as the ALJ found (Rec. Dec. at 16), Brandt had told Purdy on April 8, four days prior to Complainant's transfer and termination, -

that Brandt wanted Complainant transferred out of his department, as a result of Brandt's having observed indications of what he thought was incompetence and an 4

(footnote continued from previous page)

Exhibits denoted by the prefix "R" refer to exhibits introduced into evidence by Respondent in the Labor Department hearing; exhibits denoted by the prefix "PT Ex." refer to exhibits submitted by Respondent with its Pre-Trial Brief and introduced into evidence during the Labor Department hearing; exhibits denoted by the prefix "PX" refer to exhibits introduced by Complainant; and exhibits denoted by the prefix "NRC Ex." refer to exhibits introduced into evidence during the NRC licensing hearings. Citations to the ALJ's Recommended Decision are shown as " Rec. Dec."

• f

.o cp inability to follow instructions in connection with certain incidents discussed below. Finally, on April 12, Brandt received from Complainant within ..ue space of a couple of hours Complainant's Non-conformance Report

("NCR") 361, with a note stating that Complainant was

"[o] pen to pow-wow" and a previously denied promotion .

request attached (TR 562-64, 648-650; NRC Ex. 135; UEA 12-13); a request for transfer (PX 26.41); and a request for Brandt's approval for Complainant to seek work elsewhere on the site (PX 26.40).

From this, Brandt inferred that Complainant was seeking to leverage a promotion or trans fer by

" negotiating" the disposition of NCR 361, in which Atchison contended that non-certified personnel were performing inspections cnd issuing determinative findings.3 Upon reaching this conclusion, Brandt met with i Ron Tolson, TUGCO's On-Site QA/QC Manager, and Purdy, i

3 At the hearing before the ALJ, Complainant admitted that he had no knowledge of whether any determinative findings were ever issued by non-certified personnel.

TR 228-232. Further, when Brandt reviewed the points raised in NCR 361 (PT Ex. B), he found them to be utterly groundless, a finding that Complainant has never challenged. Finally, it is at best ironic that Atchison sought to raise the particular issue set forth in NCR 361 in the light of the facts revealed later (and discussed in detail, infra) about his i

~

misrepresentations regarding, and falsifications of, his own qualifications, making it doubtful that Atchison would ever have received his own certifications had he not lied about his educational background.

-7 -

4

.o ,

informing them that he (Brandt) would no longer be needing Complainant and that he would be transferring Atchison back to Purdy (TR 565, 701-03).

Purdy's decision to terminate, once he had determined that there were no other openings then available, was based on his perception that Atchison was indeed attempting to leverage something, as indicated by the

" pow-wow" note attached to NCR 361, and Purdy's impression based on reports of past incidents from Brandt that Atchison lacked the ability to perform assigned tasks and follow supervisory direction. TR 94-95, 433-435, 709-711, 732-734. The past incidents that figured in these considerations include what has been referred to as "the 822 incident" and the events surrounding the issuance of .

NCR 296. The details of these incidents are provided below.

The "822" Incident The first opportunity that Brandt, as Atchison's i

supervisor, had to personally observe Atchison's inability to make proper judgments concerned an inspection by l

Atchison of a pipe whip restraint at the 822 foot elevation in the plant (TR 69-71, 211, 224-225, 418, 419, 445, 466, 532-538, 624-632). By March 20, Atchison had )

l perceived possible defects in several welds and drafted an NCR accompanied by two drawings,4 and Randy Smith, Lead 4 On-site TUGCO NCR procedures, CP-QP-16.0 (R.Ex. Z.2),

(footnote continued) l

_g-

,0 is Inspector and Atchison's immediate supervisor, had indicated his nonconcurrence with Atchison's observations (TR 449; R.Ex. Y.3).

During this same period, Brandt, accompanied by Mike Foote, a foreman, and Smith, went to the area where they believed Atchison had perceived the defects.5 Brandt climbed to the pipe whip restraint and inspected the area where Atchison had perceived defects. During his observa-tion, Brandt discovered several improper judgements made by Atchison, and Brandt also noted Atchison's failure to limit the scope of his inspection to the areas of his assigned responsibility (TR 419-420, 445-47, 466, 471-472, 533-546, 567, 626-632; UEA 10; UE 28-29).

( footnote continued from previous page) applicable to Atchison's work, dictate that once an inspector notes a potential defect he/she is to 1) apply a Hold Tag to prevent further work on the defective area (s) (para. 3.1.1), 2) obtain the NCR number from the NCR coordinator (para. 3.1.1), 3) put-- ~~

the NCR number on the Hold Tag (para 3.1.1), 4) draft '

the NCR (para. 3.1.3), and 5) submit the NCR to supervision for review and disposition (para.-3.1.5).

Atchison did not follow these documented NCR procedures during the "822" incident. Atchison did not apply a Hold Tag in ordar to prevent further work on the relevant sections of the pipe whip restraint, nor did Atchison obtain an NCR number, nor did Atchison formally submit the NCR for disposition (TR 446-47, 546; R.Ex. Z.2, Y.3). i 1

5 At the time Brandt, Foote and Smith went to the area the only documentation generated by Atchison that they possessed was a diagram of the suspect pipe whip restraint (TR 534, 538-539, 541, 626-627; R.Ex. Y.3,

p. 5). The group was forced to ask a superintendent as to the probable location of the restraint (TR 534) .

l l

~

s' w r ~

', e .

1 Atchison had mapped what he perceived to be defects that contained too much porosity. Brandt noted, however, that Atchison improperly had rejected acceptable indications of porosity (TR 534-35, 626-31). Second, Brandt noted that Atchicon had inspected welds performed by the vendor, Chicago Bridge and Iron Company (herein referred to as "CB&I"), that were physically located outside his assigned areas of responsibility (TR 415-16).

Third, Brandt questioned how Atchison could have been able to note all of his perceived defects inasmuch as a thick layer of paint covered the areas noted by Atchison (TR 535-36). Fourth, Brandt noted a weld performed by a Respondent employee that Atchison had required to be ,

exessively polished.before he would inspect and test the weld (TR 535-37, 567-68, 694).

Brandt, after his inspection of Atchison's work, informed Foote and Smith of his observations. Brandt told i

the two that Atchison had a problem in that he was rejecting acceptable porosity (TR 535). Brandt also told  ;

them that the linear indications in the metal as perceived l by Atchison were actually cracks in the paint covering the l metal (TR 535-36). Brandt directed them to instruct f Atchison to have the paint removed from the weld so that ,

1 it could be reinspected if Atchison desired to further pursue the matter (TR '536, 628). Srandt also info rmed i

i

them that Atchison had required excessive preparation of welds before he would perform liquid penetrant testing (TR 535-37).

Smith, in turn, informed Atchison of Brandt's complaints (TR 70, 79-80, 224-225, 404, 407-408, 466, 472; NRC 3254-3256; NCR Ex. 650, pp. 23-24). Yet, Atchison ignored Smith's orders, as he never directed the paint to be removed in order to uncover'any potential indications

. (TR 446-47, 546).

An NCR was ultimately issued by TUGCO after Atchison's " concern" became public information upon introduction during the NCR licensing hearings in late July of 1982 (TR 538-546, 566-4567; R.Ex. Y.3). After its public disclosure, Brandt. inspected the area, then drafted and issued NCR M-82-01236, to properly document Atchison's concern, since Atchison had not previously done so himself l per CP-CP 16.0 (TR 546). 'The inspection findings confirmed Brandt's earlier observations. Not only did NCR 1236 document that many " defects" perceived by Atchison in fact constituted acceptable porosity and that the linear indications were indeed cracks in the paint, but it also determined that Atchison had accepted defects that were, in fact, rejectable (TR 566-67).6 6 In her Recommended Decision, the ALJ states that the fact that Atchison had accepted defects that should have been rejected was "not in evidence." Rec. Dec.

at 12, n.7. This is, however, patently untrue. For one thing, NCR 1236 itself (R.Ex. Y.3), to which the (footnote continued)

-_ _ _m , _

J

. Atchisons Activities in Connection with NCR 296 The second direct observation by Brandt of Atchison's inability to make proper judgments occurred during I

Atchison's inspection activities pertaining to NCR 296.

That NCR pertained to four vendor-supplied pipe whip restraint asemblies located in the laydown area, immediately outside Brandt's trailer office. .

A recent shipment of four pipe whip restraints i

manufactured by CB&I were received on-site. On or about March 18, Hayward Hutchinson, Respondent'.s On-Site Subcontract Administrator telephoned Brandt asking him to 1

look at this recent shipment (TR 546-547, 636-637; UE3 7).

During his brief walk-around tour of the assemblies, Brandt determined that the welds at least appeared to indicate poor workmanship (TR 546-47). Brandt relayed his determination to Hutchinson, informing Hutchinson of the l

shoddy workmanship, and that he (Brandt) intended to

! inspect the assemblies formally and to issue an NCR covering the detected conditions (TR 547, 637). Next, j

( footnote continued from previous page)

ALJ refers in her note 7, expressly refers to two sketches (pp. 2&3) attached to the NCR that show

" rejectable" weld defects that were not reported in Atchison's draft NCR, which is also attached to NCR 1236. Moreover, in his testimony before the ALJ, Brandt described in detail both defects improperly rejected and those that Atchison improperly failed to reject. TR 566-67.

12 -

'.o  ;,

Brandt instructed Foote and/or Smith to inspect and issue an appropriate NCR (TR 75, 216, 547, 637; UEA 7-8; NRC Ex.

650 at 40-41, NRC 3350-52).

After directing the formal inspection process to begin, Brandt telephone Tolson informing him of the I

problems and that he had ordered the preparation of an NCR (TR 547-549, 594-599). Because of the multitude of pipe whip restraints manufactued by CB&I, Tolson and Brandt recognized the need to extend the inspection beyond.these . - - _

four particular asemblies (Id., TR 559-60). The two recognized tns need to "look beyond" in light of the conflict between on-site detection of problems, and prior acceptance by CB&I's inspection and release by Respondent or TUGCO from CBI's plant to the site (Id.).

During their telephone conversation, Tolson and*

Brandt decided to determine the number of pipe whip restraints manufactured by CB&I and whether any previous defects had been detected among them (TR 547-549, 594-599). Brandt immediately began colleching these necessary documents, retaining them himself until they were collected (TR 547-49). Brandt's long-range plan was to retrieve from the on-site document control center the drawings of all the CB&I pipe whip restraints and then to reinspect all of the assemblies (TR 594-99).

',o 'c.

l At the same time that Tolson and Brandt were '

3 discussing the need to expand inspection concerns beyond the recently received assemblies, Smi'.h instructed Atchison to apply a Hold Tag and to draft an NCR l

, documenting the defects on the four assemblies (TR 75, 216, 426, 447; NRC 3350-3351; NRC Ex. 650, p. 41; NRC Ex.

200, p. 52-53). Atchison complied with Smith's instruction, drafted an NCR with his name on it pursuant to standard procedure, and submitted it for disposition.

Brandt rejected Atchison's draft because it lacked the necessary mapping of defects that the Engineering

, Department would require for its evaluation (TR 216, 549-i

550). Brandt also rejected the draft NCR because he i

needed greater specificity in the NCR's description of defects since CB&I would be performing any required repairs (Tr. 549-50).

On or about March 22, after Brandt rejected i

Atchison's initial draft NCR, a second draft that had been prepared by two, two-man inspection teams was submitted to l

Brandt (TR 75-76, 221, 427, 550-551).7 Brandt rejected this second draft because it noted substantially more defective porosity than Brandt had noted during his walk- l around inspection, and the amount of rejectable porosity was truly extraordinary given the applicable standard (TR 5 50-51) . The following day, a third draft was 7 The four inspectors involved in this second inspection were Atchison, Smith, Dave Brown and C. C. Randall.

, i

'.. 't ,

i submitted to Brandt, and Brandt rejected this draft because again it noted incredible amounts of porosity (TR 552), even though, as Atchison testified, this third draft had " removed a lot of it [ porosity] from the initial NCR."  !

t i (TR 78).

1 The fourth, and final, draft was approved on March 29 R.Ex. Z.1). This final draft noted that the inspection code initially applied (AWS Dl.1) was not the code used by CB&I when it manufactured the assemblies (ASME Sec. III, l

Subsec. NF) (Id.). This fourth draft was drawn per the  !

dictates of the same inspection code used by CB&I (ASME Sec. III, Subsec. NR). This draft did not indicate any defective porosity (R.Ex. Z.'l). Brandt learned of this l l -

j error during a conversation with CBTI QA Manager Ron Bonina and Huchinson and after a review of relevant documentation, including the purchase orders for the i assemblies (TR 83-84, 428-429, 555; R.Ex. Z.1).

1 During the' inspection activities relating to NCR 296, Brandt became disturbed over the amount of porosity Atchison was indicating as defective, and the time the inspectors were taking in issuing the NCR (TR 448-449, i I 552-54). Brandt recalled Atchison's having rejected 5 l

acceptable porosity in the "822" incident, supra (TR 554) .

Brandt learned of Atchison's rejection of acceptable porosity by comparing his walk-around findings with the i mapped porosity in NCR 296 and by questioning Smith (TR

'.. '.. j 1

448-49, 554). Smith informed Brandt that Atchison had indicated in the NCR most of the porosity (TR 409-11, 448-49, 554).8 Per Brandt's instruction, Smith told Atchison that he was not following instructions by rejecting porosity which was acceptable (TR 70, 80-81, 222, 407-09, 456-57; NRC Ex. 650 at 41).

III. COMPLAINANT HAS NOT ESTABLISHED A CASE UNDER THE LEGAL STANDARDS IMPOSED BY THE SECRETARY AND THE ALJ'S RECOMMENDED DECISION DEMONSTRABLY DISCLOSES THE APPLICATION OF AN ERRONEOUS ALLOCATION OF BURDEN OF PROOF AS WELL AS PLAIN ERRORS OF LAW AND FACT The recommended decision of the ALJ is fatally flawed for many reasons, as we show below. The ALJ relied upon the uncorroborated testimony of Complainant in several material respects even though she specifically stated in her opinion that she could not rely on such evidence because of the Complainant's admitted record of lies, falsifications and misrepresentations. In addition, we show that the ALJ misconstrued the law in determining that the Complainant had engaged in " protected activity" within the meaning of the Act. Further, we show that the ALJ committed clear legal error, contrary to the standards 8 Smith testified without contradiction that of all of the defects in porosity noted by Atchison, only one was actually rejectable. Atchison had noted numerous instances of porosity, at least more than ten (TR 478-482).

' ' s, established by the Secretary in cases under this Act, in misapplying the respective burdens of proof, and, in J

particular, in requiring Respondent to prove the absence l

l of discrimination. We show that the record plainly indicates that Respondent $$t its burden of proof by articulating a legitimate nondiscriminatory reason for the action taken, and that the Complainant offered no evidence to rebut this proof. Accordingly, as we show below, the 1

decision of the.ALJ is totally-unfounded and must be

.i reversed.

4 A. The ALJ Incorrectly Relied Upon Testimony Of The Complainant After Stating That His Testimony Should Be Disqualified In Light Of His Established History Of Dishonesty ,

At the outset of her Recommended Decision, the ALJ noted the following three instances of dishonesty on the Complainant's part: 1) he " lied on his application for Brown and Root in employment when he stated he received an associate's degree from Tarrant County Junior College..."

l (Rec. Dec. at ?); 2) he "also physically altered a copy of the Tarrant County Junior College reply to Brown and Root to reflect his achievement of a degree and then used this altered form as part of his January, 1982 application for TUGCO employment" (id.); and 3) he made " misstatements at p'oints under oath" in connection with July, 1982 NRC hearings (id.). Holding this evidence of Complainant's

',o '4 dissembling ways to be "of considerable significance in assessing his credibility" (id.), the ALJ announced her I

l intention to assign no weight to complainant's testimony if it was not independently corroborated:

In reaching factual findings where attestations conflict, I have looked to and particularly weighed other evidence surrounding the events in question to judge the actuality of the situation presented, giving weight to complainant's representa-tions only when corroborated by other evidence.of record over which he had no control, including reasonable inferences therefrom. Rec. Dec. at 4  ;

(emphasis added).

As to Complainant's misrepresentations under oath noted by the ALJ, Complainant testified at the July 1982 NRC hearing that he had earned 123 credit hours from ,

, Tarrent County Junior College (NRC 3199; NRC Ex. 650,'p.2,  !

Attch. 1). Under cross-examination in that proceeding, i

Complainant admitted that he had, in fact, earned only 27 credit hours (NRC 3354-57). Complainant's only explanation for this fabrication was that "this was -

approximately [ sic] hours, I guess." (NRC 3357).

Regarding the physical alteration of the Tarrant 1

County Junior College verification of education form, also noted by the ALJ, Complainant initially testified under oath in the July 1982 hearing, that he did not know why in that fo rm, which had been submitted.by Complainant with an

]

application for employment with TUGCO in January 1982 (NRC Ex. 133, p.7), it was stated " degree attained" (NRC 3277).

I i 4

7__ m_r_ -_, m _y__.3 . - ,- w., , , _ _ - . , , _ . _ , -

, ,m -, h m ,- m

Complainant later admitted he haId himself whited-out a portion of that form so as to remove the "no" from the notation "no degree attained" (emphasis added), as had originally been stated on the document received from Tarrant County Junior College (NRC Exs. 134, 137; NRC 3339-40).

Moreover, it is quite significant, though the ALJ neglected to mention the fact, that Atchison was unwilling to deny under oath that he had falsified still other documents while employed at the site. In particular, the i

following colloquy is revealing:

i Q. Okay.

Now, you testified that you had whited out that document that was received from Tarrant County Junior College? .

A. Correct.

Q. During the course of your employment at Comanche Peak, was that the only document you had whited out and making false misrepresentations by committing that act?

A I don't remember any others.

Q. Is it possible that there are other documents?

A. I don't remember.

Q. But is it possible?

A. I don't know.

Q. All right.

It is a serious enough of a matter that if it was done,. you would remember?

A. I don't remember.

TR 157-58.

As to the ALJ's announced intention to assign no weight to complainant's testimony absent independent corroboration, she failed to abide by this ruling in

! making several significant determinations. In the first instance, the ALJ infers from Complainant's testimony that

8

.. r.

Brandt and/or Purdy had knowledge of Complainant's statement that he intended to go to the NRC with his concerns regarding NCR 296. (Rec. Dec. at 8).

The record, however, simply does not bear this out.

Atchison himself testified that he never made such threats within earshot of either Brandt or Purdy (TR 87, 128-29).

Both Brandt (TR 574-75) and Purdy (TR 697) directly and i unequivocally denied that they had any knowledge of these threats at the time of Complainant's termination. More-over, there is nothing in the record that contradicts their testimony in this regard.

Further, in concluding that Complainant was " solely responsible for the initiation of actions which resulted in the issuance of NCR 296" (Rec. Dec. at 14), the ALJ credits complainant's testimony over that of all other witnesses. The only independent corroboration that Complainant had himself already issued, or had taken actions to issue, an NCR when Brandt directed that an NCR i

on this matter be prepared is the entry of Complainant's name on the NCR. This fact, however, is merely i repesentative of Complainant's participation in the inspection directed by Brandt and is consistent with internal procedures regarding issuance of NCRs (R.Ex.

Z.2). The ALJ ignored testimony by Atchison himself that an NCR had not been initiated until af'ter Brandt had examined the pipe-whip restraints and directed, through

. . -.-. _= - - - -

.. 5..

Smith, its preparation (TR 75; NRC 3350-52; NRC Ex. 650 at

! 40-41). Also ignored is testimony by Fortman (TR 369),

Smith (TR 447), and Brandt (TR 546-48) that the NCR entered into the system was prepared upcn direction by

. , . ~ . . . . - - . .

i Brandt.

4 Further, the ALJ disregarded testimony that no hold tags had been affixed to the restraints, as is required before issuing an NCR, at the time of Brandt's inspection

.-- --- - (TR 517, 547, 642). The'ALJ only concluded that

" inferentially hold tags were applied," citing as support 3 for her conclusion Mr. Smith's testimony that he (Smith)

had instructed Complainant to affix hold tags and had

, thought that Atchison had done so (TR 426). In sum, the ALJ has given precedence to her own unfounded assumptions I

over clear and uncontradicted testimony, including that of I

Complainant, that refutes her conclusions that Complainant originated NCR 296. Moreover, this is a matter of critical significance, inasm'uch as the ALJ asserts that the filing of NCR 196 constituted one of two unlawful causes for Complainant's termination -- an assertion impossible to sustain if, as was in fact the case, Brandt directed the preparation of NCR 296.

In support of her conclusion that Complainant's J

concern expressed in NCR 361 was not frivolous, the ALJ l

cites only two portions of the record, neither of which even addresses the significance of NCR 361 (Rec. Dec. at l

l I

l  !

a 19). She disregards testimony, however, demonstrating that the writing of an NCR on this subject was so unfounded'that every person who reviewed the substance of the NCR immediately concluded that it was groundless and that the NCR should be voided (TR 92, 424, 496-500, 757; PT Ex. B) this testimony, of course, further demonstrates Complainant's inability to discern meaningful deficien-cies. At the same time, the ALJ i,gnored testimony to the effect that if Complainant's NCR 361 had indeed repre-sented a valid concern, it would have required major corrective action (TR 231-32, 464, NRC Ex. 650 at 53),

which fact supports Respondent's belief that. the NCR and attached " pow-wow" note were intended to leverage some benefit for Complainant in return for not pursuing the NCR.

Further, the ALJ's attribution to Mr. Brandt of adverse personal feelings and animosity toward Complainant as reasons for terminating Complainant (Rec'. Dec. 7, 17) could only be based on Complainant's own attestations (NRC Ex.650, Attch. 4), as it flies in the face of Brandt's testimony that he did not have any personal feelings toward Complainant and his judgements were based on technical and supervisory assesments (TR 567). .In addition, the ALJ's reliance on this animosity" as a reason for Complainant's dismissal is internally incon-

• ' l

)

i sistent with the ALJ's own conclusion elsewhere that the sole reasons for such dismissal were the events surround-ing the writing of'NCR's 296 and 361 (Rec. Dec. at 23).

Finally, the ALJ's finding that Complainant was promoted "apparently" from the recommendation of Mr.

.Hawkins (Rec. Dec. at 4) can only be based on statements by Complainant. In fact, Mr. Hawkins was not even employed at the site at the time complainant received this promotion, and did not testify in this proceeding.

i f

e

• O 4

l l  !

'.o '.,

B. The ALJ Erred In Finding that Complainant's Activities Constituted Protected Activity Within the Meaning of 42 U.S.C. 45851

1. Atchison Was Not Engaged In Protected Activity In her Statement of the Case, the ALJ states that the Act " prohibits a Nuclear Regulatory Commission (NRC) licensee from discharging or discriminating against an employee who has commenced a proceeding to carry out the purposes of the Act." (Rec. Dec. at 1; emphasis added).

This prohibition'against discriminatory action is repeatedly set out in the three subparts of Section 210(a). Consistently, however, the prohibition is framed ,

in terms of "a proceeding":

Section 210(a). - No employer, including... a contractor or a subcontractor of a Commission licensee or applicant, may discharge any employee or otherwise discriminate against any employee because the employee (or any person acting pursuant to a request of the employee) -

(1) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this Act...;

(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 other matter in such a proceeding or in any

'.e ,

other action to carry out the purposes of this act or the Atomic Energy Act of 1954, as amended. 42 U.S.C. $5851(a)

(emphasis added).9 Not only does a literal reading of the language of the statute indicate that protection is limited to those activities that rise to the level of a formal proceeding, but the intent of Congress bears out this interpretation.

The legislative history of Section 210 clearly shows that its protection is not to be afforded an employee who is not actually or potentially involved in a proceeding related to the enforcement of the Act. In addition, i

protection is denied to an employee who acts outside the direction of his employer. The Senate Report on the bill thus stated: .

This provision adds a new section to the Energy Reorgani.Sation Act of 1974. This section offers protection to employees who believe they have been fired or discriminated against as a result of the fact that they have testified, given evidence, or brought suit under that act or .'

the Atomic Energy Act.*** The section does not apply to an employee who acts ouside the direction of his employer. S.

9 It must be noted that subsections (1) and (2) envision an active, first-party role of the employee, while (3), by use of the terms " assisted" and "partici-pated", envisions a supportive, third-party role by

, the employee in a proceeding commenced or brought by

, another person. Clearly, subsection (3) does not imply that the employee was the originating actor.

Thus, filing of an NCR would not fall within subsec-tion (3), and certainly not within subsections (1) or (2). -

f .

w

.O e l

Rep. No.95-848, 95th Cong., 2d Sess. 29.

~

The Conference Report, moreover, in describing the employee protection provision, states the matter even more clearly:

Section 10 - Employee Protection The Senate Bill amended the Energy Reorganization Act of 1974 to provide protection to employees of Commission licensees, applicants, contractors or subcontractors from discharge or discrimination for taking part or assisting in administrative or legal -

proceedings of the Commission. (Cong.

Rept. No. 95-1796, 95th Cong. Sess.;

l emphasis added).

Thus, the only definition of the term " proceeding" l

that comports with the articulated congressional intent is one that equates the term with a legal action of' ,

enforcement that invokes statutorily prescribed machinery.

See 29 CFR Part 24.2(b)(1)(2)(3). There was no prior legal or administrative proceeding involved in this case with which to connect activities by Atchison found by the ALJ to have been " protected." Atchison asserted that he _ _ _ __

was discharged by Respondent because he threatened to go to the NRC (TR 7,22) (though as is discussed supra in section III.A. hereof the record confirms that those who participated in the evaluations and decisions that led to Complainant's discharge never knew of these threats),

while the ALJ held that he was terminated because he filed NCR 296 and NCR 361.

'., o 1

1 The filing of these reports, however, is purely an internal matter; no NRC personnel were involved; no complaints were made to the NRC; no proceedings were initiated; and nothing in the record herein suggests that at the time of his termination the Compliainant was "atnut to" commence, testify in, or assist in such a proceedinr;,

much less that Respondent had any knowledge of an inten-tion by Atchison to do so.

The literal, plain, and clear meaning of the statute, does not admit of a construction whereby the filing of an NCR could be considered a proceeding under section 210.

It follows that Atchison's actions were not protected activity. The ALJ, however, stated that in her

" opinion", the filing of the NCR's in and of themselves constituted a " proceeding" and thus were protected activity. (Rec. Dec. p. 8).10 No legal basis is set forth by. the ALJ to buttress her unfounded and illogical opinion of the scope of 10 The ALJ also noted that Atchison had in the past complained to the Nuclear Regulatory Commission (presumably without any adverso personnel action) and intended to do so again, through concerns voiced to other personnel at the worksite. This, however, was not in any way considered by the ALJ to be protected activity, nor should it have been. In any event, this alleged action by Complainant was unknown to Respond-ent. Indeed, both Purdy and Brandt denied having such knowledge in uncontradicted testimony, and Atchison clearly stated that he never uttered such threats to or near either of them. (TR 87, 128-29, 574-575, 697). Moreover, such vague threats could not in any event constitute protected activity.

27 -

protected activity. Such an opinion flies in the face of not only the legislative history of Section 210, but also of other, . comparable "non-discrimination" legislation enforced by the Department of Labor. Both the Occupational Safety and Health Act, 29 U.S.C. $660(c)(1)

(Section 116), and the Mine Safety and Health Act, 30 U.S.C. $815(c) (Section 105(c)), have language similar to the " proceeding" language contained in Section 210.

Unlike Section 210, however, these Acts both contain"a

" catch-all" provision, which gives protection to employees

who exercise any right afforded by the Act. Such language expressly extends protection to employees who, inter alia, make safety complaints to their employer alone, without contemplation of or involvement in a proceeding. This language is, however, conspicuously missing in section 210

-- even though it was enacted after both OSHA and MSHA.

In ' addition, the Secretary of Labor has given a number of examples of what he considers to be a proceeding: -

Examples of proceedings which could arise specifically under the Act would be inspections of worksites under l Section 8 of the Act, employee contest I of abatement date under Section 10(c) of the Act, employee initiation of proceedings for promulgation of an occupational safety and health statute under Section 6(b) of the Act, [and]

employee application for modification I or revocaction of a variance under l Section 6(d) of the Act....

[29 C.F.R. 1977.10(a)].

l

O o All of these examples deal with an administrative or legal action of enforcement. Turning in a safety and health report or complaint to one's employer is not a proceeding under either OSHA or MSHA. Similarly, it cannot be a proceeding under Section 210 -- therefore, it is not a protected activity.

Moreover, there are several fundamental conceptual problems with the scope of protected activity, as .

determined by the ALJ. First, the NCR quality control procedure is only an internal safety detection device, similar to an occupational safety and health in-house audit. Characterizing the filing of NCRs as in and of itself an action to carry out the Act's purpose, is to grossly overstate the significance of the NCR procedure.

It is, simply put, a routine process for the internal identification, reporting and tracking of potential nonconforming and indeterminate construction matters (R.Ex. Z.2; TR 514-20). As literally thousands of NCR's are issued annually at nuclear power reactor construction sites (TR 457, 540-46; R.Ex. Y.3), the mere act of submission of NCRs by a QC inspector is immaterial to the assessment of that inspector's job performance (TR 206-07, 418-19, 698-700). Futher, by its nature the system is designed to identify even matters that are indeterminate (ib.); consequently NCR's themselves have little signifi-Cance.

As stated in 10 CFR Part 50, Appendix B Section XV, non-conforming items shall be reviewed and accepted, rejected, repaired or revoked (by management) with documented procedures.ll The mere submission of ac NCR does not mean that an identified condition is noncon-forming, nor does it in any way initiate statutory procedures. It does not mean a deficiency has been identified; it only sets up the process for determining Only by laEer

~

whether in fact a problem-exists. ._ _. ____

evaluation can-this determination be made. Moreover, filing or not filing an NCR (or for that matter, being directed by supervision to file or not to file an NCR) does not detract from an employee's clear statutory right to report safety concerns directly to the NRC (which apparently Atchison had previously done with no adverse repercussions), with the resulting litigation.

Further, the ALJ obviously took no account of the -

fact that her expansive construction of the Act's "protections" threatens to seri~ously dissipate its effectivess in according protection to those activities intended to be protected, by raising the spectre of I

literally thousands of such incidents. This would thrust the NRC directly into the employment relationships of employers and employees on an on-going basis, a conse-11 Indeed, NCR 361 was so patently void that Brandt was able to void it on its face (PT Ex. B).

1 i

l - . .

quence that would doubtless place severe strain on the limited resources of the Department of Labor.

If Section 210 is construed as broadly as the ELJ did in this case, the Secretary of Labor can antic'jate the filing of thousands of these cases in the future, because the ef fect will be to give all quality control inspectors (hundreds at each nuclear site) a ready cause of action for any peformance-related adverse action. Section 210 will become a " job security" clause and will embroil the Secretary in thousands of employment disputes, which properly belong in the labor-management relations  ;

arbitration arena. There are statutes whose purpose is to protect, control and regulate the employment relationship

-- section 210 is not, however, one of them.

The consequence, otherwise, would be not only the clogging of administrative and legal machinery and diversion of much needed resources from those cases the Act was actually intended to address (cases involving discipline for the invocation of statutorily prescribed mechanisms), but would also diminish the effectiveness of the quality control safety program by preventing management from taking any constituctive action toward incompetent, or even malevolent, quality control inspectors in the workplace. All of these untoward results, would follow even though the Act's legislative history clearly indicates that the employee protection

provision does not apply to an employee who acts outside the Sirection of his' employer. S. Rep. No.95-848, 95th Cong., 2d Sess. 29.

2. Even Assuming The Existence s Of Protected Activity, The ALJ Applied An Incorrect Legal Standard of Causation Even if the filing of NCRs can be construed to be a pr.tected activity, the ALJ failed to recognize the vital distinction between an adverse employment action taken in retaliation for an employee having engaged in a protected act, and legitimate supervisory action based on the cuality of job-related performance of assigned responsi- ,

bilities. In her recommended decision, the ALJ noted that the Complainant hintself had stated that:

his termination in fact resulted from his reporting of unsatisfactory, vendor-supplied pipe whip restraints being installed on this nuclear project, and a personal conflict with Mr. Brandt and Mr. Foote over his reporting this noncompliance. (Rec.

Dec. at . p . 7, emphasis added)

In reviewing these contentions and relating them to her understanding of legal causation, the ALJ stated that it must be shown that the alleged protected conduct (filing the NCRs) was a motivating factor in the employer's determination to terminate the complainant.

(Rec. Dec. . p. 9). In applying this standard, however,

',e ',,

the ALJ grossly erred. As stated previously, the statutory formulation of Section 210 is substantially similar to and indeed was modeled after Section ll(c) of OSHA and Section lO5(c) of MSHA, both of which are enforced by the Secretary of Labor. Those sections in turn are modeled upon Section 15(a)(3) of the Fair Labor Standards Act. The cases under all three of these statues hold that, in order to make out a violation, the protected activity must be a substantial reason for the adverse action; that is, it must be shown that the adverse action would not have taken place but for the engagement in protected activity. See, Goldberg v. Bama Mfg. Co., 302 F.2d 152 (5th Cir. 1962); Marshall v. P&Z Co., Irc.,

F. Supp. , 6 OSHC 1587 (D.D.C. 1978), aff'd 600 F.2d 280, 7 OSHC 1633 (D.C. Cir. 1979).

Clearly, the ALJ did not follow this statutory and adjudicial prescription -- she held that discrimination was shown if protected activity was a motivating factor.

So postured the requirements of the statute have not been ret -- causation has not been shown. Moreover, under both the OSHA and MSHA statutory schemes, the person complaining of discrimination must act in good faith and be reasonable in the conduct of the protected activity.

Pasula v. Consolidated Coal Co., 2 MSHC 1001 (1980),

rev'd, 663 F.2d 1211 (3d Cir.~1981); Whirlpool Corp. v.

Secretary of Labor, 440 U.S. 1 (1980).

. r

,* *s There has been no finding by the ALJ of either good faith or reasonableness on the part of the Complainant.

To the contrary, the record is replete with statements that Complainant was exceeding his responsibilities in conducting inspections outside the~~s~ cope ~ of his assigned responsibilities. (Rec. Dec. at 10', 11, 13). As noted previously, the Act does not afford protection to an employee who acts outside the dir.ection of his employer.

l u- Moreover, Complainant himself suggested that there were bad personal feelings between him and Brandt. (Rec. Dec.

pp. 7, 17). This in itself is enough to cast doubt on Complainant's good faith and reasonableness; not to mention the fact of his " misstatements under oath", lies-and other dishonest acts.

Based on the foregoing discussion, it is clear that not only did the ALJ mischaracterize the filing of an NCR

, as protected activity, but in addition applied an incorrect legal standard of causation in applying the

~

~ protected activity standard of Section 210. The Secretary of Labor must find that on the basis of the facts and the t

law that the ALJ's findings were arbitrary, capricious and incorrect as a matter of law.

I i

l 1

34 -

f

_ . _ - . .--. , . - , __, . - ~ - _ -

,e '1, C. The ALJ Committed Reversible Error In Failing to Allocate The Burden of Proof In the Manner Prescribed By The Secretary of Labor, And Placing An Impermissible Burden on Respondent In Heddon v. Conam Inspection, Case No. 82-ERA-3 (June 30, 1982), the Secretary of Labor expressly enunciated the appropriate allocation of the burden of proof for Section 210 cases:

In arriving at his conclusion with respect to whether Hedden was discharged because of activity protected by 42 U.S.C. 5851, that is, whether the discharge was retaliatory, the Administrative Law Judge followed the principles which have been applied in cases involving alleged retaliation against employees arising under Title VII of he Civil Rights Act of 1964 (42 U.S.C. 2000(e)). Texas Department of Community Affairs v. Burdine, 450 U.S.

248 (1981); McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973); Hochstadt

v. Worcester Foundation, 545 F.2d 222 (1st Cir. 1976); also Loeb v. Extron, Inc., 600 F.2d 1003 (1st Cir. 1979), a case under the Age Discrimination in Employment Act of 1967 (29 U.S.C.

621); and NLRB v. Wright Line, 6622 F.2d 899 (1st Cir. 1981); Behring International, Inc. v. NLRB, 675 F.2d 83 (3rd Cir. 1982). Pursuant to these principles, the employee must make out a prima facie case of discrimination.

The employer then has the burden of articulating some legitimate, nondiscriminatory reason for the employee's discharge. The employee must have the opportunity to prove that the reasons offered by the employer were not its true reasons but were pretexts. The ultimate burden of persuading the trier of fact that the employer intentionally discriminated

e 2

, c.

I against the employee remains with the I employee. Texas Department of I Community Affairs v. Burdine, supra.

The principles are applicable to this case. Id. at 1-2 (Decision of the Secretary of Labor).

Furthermore, in one of the recent Title VII retaliation cases to which the Secretary referred in Heddon, the Fifth Circuit has enunciated in specific terms what is required for a plaintiff to be able to make out a prima facie case of unlawful retaliation:

To prove a primt fecie case under Section 704(a) th~~hitle VII plaintiff must establish by a preponderance of the evidence (1) that he engaged in an activity protected by Title VII; (2) that an adverse employment action occurred; and (3) that there was a causal connection between the participation in protected activity and the adverse employent action.

Dickerson v. Metropolitan Dade County, 659 F.2d 574, 580 (5th Cir. 1981).

Moreover, at least two Labor Department ALJs, with the apparent approval of the Secretary, have provided further refinement on this standard by identifying what proof the complainant must adduce to provida the requisite causal connection between his allegedly protected activity and the adverse employment action of which he complains.

In Jaenisch v. Chicago Bridge & Iron Co., Case No. 81 ERA-5 at p. 4 (May 18, 1981), and in Liveret v. Tennessee Valley Authority, Case No. 82-ERA-1 at p. 9 (Dec. 16, 1981), both adopted in their entirety by the Secretary, the ALJs held that a complainant seeking relief under l

1

.e ,

Section 210 must adduce evidence of 1) like individuals being treated differently, and 2) discriminatory animus or intent.

/

A review of the ALJ's Recommended Decision in the present case clearly reveals that her very substantial departures from the burden allocation scheme prescribed by the Secretary were outcome-determinative. As to the prima facie case, the Complainant's evidence fell far short of the requisite showing. Not only did Atchison fail to show that he was engaged in activity protected by the Act, as is discussed supra, but he made absolutely no showing of either differential treatment or discriminatory animus.

To compound the error, the ALJ. applied a demonstrably erroneous standard for Respondent in meeting any prima facie case, requiring, contrary to the Secretary's standard and that of the Supreme Court, that Respondent carry the burden of showing no violation of the etttute.

As we show below, this standard is plainly erroneous and must be reversed.

1. The Complainant Failed To Present A Prima Facie Case Under The Pertinent Standards At the conclusion of Atchison's Case-In-Chief, Respondent moved that the case be dismissed based on Atchison's failure to prove a prima facie case by a

I c , ,

l l

I 1

preponderance of the evidence, as he clearly should have i

been required to do. See, Burdine, supra, at 253-54. The '

ALJ erred by overruling Respondent's Motion. Thorough review of the credible record evidence presented during Atchison's Case-In-Chief clearly demonstrates that Atchison~ utterly failed to offer evidence on significant aspects of the mandatory elements of a prima facie case.

This is particularly true because the ALJ found that

- '- Atchison, as a witness, was lacking in credibility and could not be relied upon as an independent source of facts.

The only correct' finding that could have been made by the ALJ after Complainant completed his Case-in-Chief, given Congress' expressed intent on the scope of the Act's protection and on the credible record evidence, was that Atchison's employment status had been adversely affected by Respondent's termination of him on April 12. The ALJ's decisien reveals that she impermissibly reached the conclusion that there was a causal relationship between Atchison's " protected activity" and his termination solely on the strength of the inferences she drew from Respondent's evidence. Consequently, she could not have concluded that the prima facie case had been made at the time she denied Respondent's motion to dismiss.

As to the ALJ's findings based on the record as a whole, it is likewise clear that there was inadequate

I evidence to support critical. elements of a prima facie  ;

case. It was undisputed that Brandt and Purdy possessed knowledge of Atchison's activities concerning NCR 361, and that Brandt possessed knowledge of Atchison's activities pertaining to the NCR 296 incident. The ALJ erred in finding that Purdy possessed knowledge of the NCR 296 incident (TR 749-52), and that Brandt and Purdy possessed knowledge of Atchison's alleged threats of reporting inspection concerns to the Nuclear Regulatory Commission (TR 574-75, 697).

The ALJ erroneously found that Purdy possessed constructive knowledge of Atchison's NCR 296 activities (Rec. Dec. at 23). In reaching this finding, the ALJ primarily relied on Atchison's written statements within the termination conference report (PX-23), a document that did not even exist until after the decision to terminate had been made. Nothing within that report, however, indicates that Atchison had filed NCR 296 or taken any action other than to debate the particular pipe whip restraints with Brandt. Nowhere within this report did Atchison, or anyone else, refer directly or indirectly to NCR 296. The Secretary should note that within this document Atchison ascribed his termination in part to a personal conflict with Brandt, a cause with which the Act is not concerned. Further, Atchison did not attempt to produce any direct or circumstantial evidence that Purdy y _ _ . , - - - . . , _ _ .

possessed knowledge of any of Atchison's NCR activities other than NCR 361. The burden of production on this point was Atchison's, yet the ALJ's Recommended Decision clearly shows that she imposed on Respondent the burden of disproving knowledge on Purdy's part.12 The ALJ erroneously found that Brandt and Purdy possessed knowledge of Atchison's alleged threats of going to the NRC over his concern for a "backfit program," and that Smith had informed Foote 'of Atchison's alleged threats (Rec. Dec. at 8). The ALJ totally ignored admissions by Atchison that he never uttered these threats regarding a backfit program either directly to, or in the earshot of, Foote, Brandt or Purdy (TR 87, 245-246).

Brandt and Purdy credibly denied that either of them knew anything about these threats prior to April 12 (TR 573-574, 697). Smith denied ever informing Brandt or Purdy of Atchison's remarks (TR 444). Moreover, there was no other evidence adduced that even suggested to the contrary.

The ALJ appears to make much of her conclusion that Smith informed Foote of Atchison's threats of going to the NRC, citing TR 430-433 as her basis for this finding. In the cited portion of the transcript, however, Smith was questioned solely on whether he discussed with Foote l

l 12 Moreover, Respondent discharged even this improper burden through Purdy's uncontradicted denial that he knew of NCR 296 until after Complainant's termination.

TR. 749-52.

f ', O Atchison's concern for a "backfit program"; there was no mention of Atchie n's alleged threats of going to the NRC (TR 430-431).

Atchison also failed to prove that he was treated disparately in response to his " protected" activities. To carry his burden on this essential element, Atchison had to prove that another employee who did not engage in protected activities, but did engage in the conduct which Respondent contends it relied upon in terminating Atchison, was not terminated or otherwise disciplined.

See, e.g., Robert N. Jaenisch v. Chicago Bridge and Iron Company, 81-ERA-5, p. 4 (1981). Atchison did not offer any evidence of this sort whatsoever.

Atchison attempted to have the ALJ believe that Ice was the similarly situated employee contemplated in Jaenisch, supra. As defined above, this contention is inapplicable to Ice inasmuch as Ice, like Atchison, ergaged within the ALJ's definition of protected activity by complaining to his supervisors of the need for a "backfit program." Ice was, in fact, promoted after voicing his concerns (TR 273-274, 283-285). What this does show is that Respondent does not retaliate against its employees who announce a concern over vendor-supplied welds; i.e., who engage in activities the ALJ erroneously l

perceives to be protected by the Act.

l l

. 1 . I Atchison claims that, unlike other employees Respondent has terminated, he was not given any guidance or counseling prior to termination. Atchison's own testimony, however, refutes his contention that he was singled out for termination without prior counseling.

Atchison admitted that there did not exist any formal, written disciplinary procedure requiring progressive discipline or prohibiting immediate terminations (TR 133; NRC 3380-3382). Atchison also' admitted that if there ever existed a past practice of prior warnings, that that practice was abandoned prior to his own termination when three employees of Respondent were terminated without warning for failure to follow supervisory instructions upon TUGCO's, the client's. insistence (TR 133-140; NRC 3380-3382). Further, Atchison himself almost was terminated without prior counseling when he refused to follow Ice's supervisory directive (TR 277, 286).

Atchison similarly failed to offer any evidence that Respondent was motivated by discriminatory animus or intent. This is not surprising, particularly in light of the fact that Atchison admitted that he was never threatened or disparaged by any official of Respondent, or any other contractor on the job site (TR 249-251). All of the ALJ's conclusions in this regard derive from the fact that she did not find Resondent's articulated legitimate reasons for its actions " persuasive," which only serves to

. , s 1

confirm the fact that she improperly imposed on Respondent the burden of persuasion.

The ALJ found that Respondent terminated Atchison on April 12 " solely because he filed NCR 296 and NCA 361, protected conduct within the Act's meaning:...It is further found these nrotected activities were the sole basis for Brandt and Purdy's conclusion complainant was unable to perform his assigned tasks, and did not follow

~~-

supervisory instructions and the motivating basis for Brandt and Purdy's evaluation and administrative response, Brandt to remove and Purdy's tc fire." (ALJ Dec. at 25-26.) Yet, these findings by the ALJ are directly contradicted by her earlier findings in regard to Brandt's observations, opinions and sentiments, which Brandt had formed prior to Atchison's February transfer to Brandt's department and during the 822 level and the NCR 296 incidents (TR 569-71, 607-10, 660-62).

The ALJ correctly found that Brandt lawfully formed an adverse opinion of Atchison prior to his February transfer, during the 822 level incident and during Atchison's inspection activities prior to the issuance of NCR 296. The ALJ correctly held that these observations, opinions and sentiments by'Brandt formed the basis for his announcement to Purdy on April 8 that he would no longer need Atchison. "When Brandt advised Purdy telephonically April 8, 1982 he would no longer use Atchison his

,. i l

1 I

motivation was dual-faceted. First, he did not want )

Atchison in his group prior to Purdy's assignment; and then his opinion was confirmed following his observation of Atchison's work in connection with the 822 incident and NCR #296." (Rec. Dec. at 22.) The Secretary must note that this finding by the ALJ does not indicate any unlawful motivation by Brandt.

The ALJ also held that Brandt observed Atchison's exercise of poor judgment deci~sions and of activities beyond the scope of his responsibility not only during the 822 level incident but also during Atchison's inspection activities leading up to the filing of NCR #296 (Rec. Dec.

at 13, 15-16, 22). She concluded:

...I am convinced that statements were conveyed to Atchison through Smith his Supervisor indicating he was exceeding his responsibilities in noting vendor defects. [at 13] ... [B]ut also find...that there were some questions [Brandt]

raised as to whether Atchison in so reporting

[NCR 296] was inspecting outside his area of responsibility (TR 414-415) [at 15]. The two occasions where as Atchison's upper level supervisor Brandt noted pro'alems with Atchison's job performance, the 822 incident and NCR #296,

... [at 16].

The same is true of the ALJ 's finding that Brandt's observations, opinions and sentiments formed as the basis of these two incidents carried over to Brandt's decision to transfer, and Purdy's decision to terminate Atchison.

(Rec. Dec. at 18, 23-24.) "The record convinces that the reasons for job removal and termination which Brandt and 1

Purdy committed to writing on April 12, 1982 [the April 12 i

i

transfer and termination memos: PX 22 and 233 were in fact the reasons for their respective actions:..." (Rec. Dec.

at 23, emphasis added.) Thus the observations and opinions, combined with Brandt's personal sentiment toward Atchison established prior to February, were found by the ALJ to have formed Brandt's disfavor and attitudes toward Atchison, and to have been part of the. motivating reasons behind Brandt's actions. The ALJ correctly did not find these observations, opinions or sentiment to be discrimi-natory, unlawful, er indicative of unlawful animus.

In addition, the ALJ ignored the undisputed evidence that Atchison had filed seven NCR's prior to NCR 296 or 361, and that Respondent did not in any manner' manifest animus or hostility because of these actions. Moreover, the ALJ's Recommended Decision makes no effort to explain why, of all the inspectors, Atchison was singled out for termination by Respondent when many other inspectorc, as noted in the NCR Log Book (R.Ex. 2), issued more NCRs than Atchison and were not in any way discriminated against by Respondent.

Thus, for the foregoing reasons, and based on the record evidence as a whole, the ALJ erred in finding that Atchisen proved by a preponderance of the evidence a prima f_acie case at the conclusion of his Case-In-Chief, and alternatively, at the conclusion of the entire trial. Her contrary findings are particularly difficult to fathom in i

l

,e a light of the fact that Complainant relied principally on his own testimony, and the ALJ has discredited him as an independent source of credible information.

m k

l

1

• e l

l

2. Even If Atchison Established A Prima Facie Case Of Retaliatory Discharge, Respondent Articulated Legitimate Reasons For Atchison's Discharge, Which Evidence Destroyed Atchison's Prima Facie Showing, And Thereafter Atchison Failed To Prove That The Articulated Reasons For His Discharge Were A Pretext For Retaliation.

As discussed above, the Secretary in Heddon v. Conam Inspection has adopted a three-phase analysis for deciding claims of retaliatory dischargs~.~~First, plaintiff must _.

establish by a preponderance of the evidence facts suf'ficient to create a legally-mandated presumption that the discharge was motivated by retaliatory animus. If plaintiff succeeds, the case proceeds to the second phase of the analysis. During the second phase, the burden of going forward with evidence (but not toe burden of persuasion) shifts to the defendant. To meet this burden of production, defendant must articulate a legitimate, non-retaliatory reason for the discharge. Significantly,

~

the defendant need not persuade the trT~er of fact that the discharge was motivated by the articulated reason; it is i sufficient for defendant to create an issue of fact l

i concerning the reason for plaintiff's discharge. If the defendant meets this burden of production, the presumption l

of retaliatory aminus is destroyed, and the case proceeds to the third phase of the analysis. During the third phase, plaintiff must prove, by a preponderance of the 47 -

i

,e '

j evidence and without the benefit of the presumption, that the articulated reasons for the discharge are, in fact, a pretext for retaliation.

The standard established by the Secretary is fully consistent with the Supreme Court cases in similar cases.

See, McDonnell-Douglas Corporation v. Green, 411 U.S. 792 (1973); Furnco Construction'Co. v. Waters, 438 U.S. 567 (1978); Board of Trustees of Keene State College v.

Sweeny, 439 U. S. 24 (1978); Texas Department of Community Affairs v. Burdine, 450 U.S. 248 ;81).

In this section Respondent demonstrates that, even if Atchinsen established a prina faci? case of retaliation, that showing was met and defeated by evidence articulating legitimate, non-retaliatory reasons for Respondent's actions and that Atchinson then failed to prove by a preponderance of the evidence that the articulated reasons were a pretext for retaliation. Thus, even if the Secretary concludes that Atchison made a prima facie showing of retaliation, the Secretary must set aside the ALJ's proposed finding of liability and dismiss Atchison's 1 I

complaint.

a. The ALJ Applied An Erroneous Legal Standard During the Second And Third Phases Of The Proceeding.

I The ALJ erroneously failed to allocate the burdens of persuasion and production of evidence in accordance with

,e '

the three-part analysis adopted by the Secretary in Heddon and the Supreme Court in McDonnell-Douglas, Furnco, Sweeny, and Burdine. Instead, the ALJ resurrected the practice of requiring the defendant /e.ployer to prove the absence of retaliation in order to rebut a prima facie showing, which practice was expressly repudiated by the Supreme Court in Sweeny and Burdine. In pertinent part of the proposed decision, the ALJ held:

[t]he complainint must make a prima facie showing sufficient to support an inference that protected conduct was a

" motivating factor" in the employer's decision to terminate him. Having so established, which as indicated below I find from this record, the employer must articulate a legitimate business reason for the action taken against complainant, demonstrate that the same action would have taken place even in the absence of the protected conduct; and the complainant must then persuade by substantial evidence that the protected c.ctivity was the moving cause for the dismissal or other complained of discriminatory action under 5851. Rec. Dec. at 9 (emphasis add ed ) .

The quoted passage demonstrates that the ALJ's consideration of the rebuttal' evidence was infected by a clear error of law. During phase two of her analysis the ALJ expressly required Respondent to " demonstrate that

. . . [Atchison would have been fired] even in the absence of the protected activity," i.e., prove the absence of retaliatory motive. The imposition of this burden on Respondent is patently inconsistent with the Supreme

Court's holdings in McDonnell-Douglas, supra, and its progeny. The McDonnell-Douglas line of cases emphasize time and again that the plaintiff always retains the burden of persuasion and that

[t]he burden that shifts to the defendant . . . is to rebut the presumption of . . . [ retaliation] by producing evidence that the plaintif f was . . . [ terminated] for a legiti-mate, non[ retaliatory] reason. The defendant need not persuade the court that it was actually motivated by the p"oferred retsons. It is sufficient i; the defendant's evidence raises a genuine issue of fact as to whether it

. . . [ retaliated] against the plain-tiff. Burdine, supra, at 254. See also, McDonnell-Douglas, supra.at 802:

Furnco, supra at 578; and Sweeny, supra at 24-25.

Clearly, the ALJ, by her own words, improperly required Respondent to " demonstrate" the absence of retaliatory motive when Respondent's burden should have been limited '

to the burden of " articulating some legitimate, nondiscriminatory reason [for its conduct]." Sweeny, supra at 25. This error alone compels that the Secretary set aside the ALJ's proposed decision and reexamine the proof adduced at the second and third stages of the proceeding in accordance with the proper legal standard.

e s

b. Respondent's Evidence Articulated Legitimate Nonretaliatory Reasons For Atchison's Discharge, Which Evidence Defeated Atchison's Prima Facie Case.

l The AL7 incorrectly concluded that-Respondent-failed to meet its burden during the second phase of the proceed-ing, in part, because she improperly required Respondent to prove the absence of any retaliatory motive. In addi -

• . i tion, the ALJ improperly substituted her personal judgment about the correctness of Respondent's business judgment in determining whether Respondent met its burden during the second phase of the proceeding. Rec. Dec. at 20-25. This ,

r substitution of the ALJ's judgment, for the judgment of Respondent's managers provides a second, independent basis for rejecting her finding that Respondent failed to meet its burden during the second phase of the proceeding.

Loeb v. Textron, Inc., 600 F.2d'1003, 1011, n.6; NLRB v. -

Eastern Smelting and Refining Corporation, 598 F.2d 6F6, 671_(1st Cir. 1979). ,

As Respondent has shown, its burden during the second phase of the case was to " articulate or state a valid reason" for its action. Loeb, supra, at 1011 (emphasis in i

the original). "It is enough for the . . . [ Respondent) to bring forth evidence that . . . [it] acted on a neutral basis." Lieberman v. Gant, 630 F.2d 60, 65 (2d Cir.

1980). Unquestionably, Respondent met its burden of production during the second phase of the_ proceeding.

)

o

.o l The rebuttal evidence shows that Atchison's termi-nation was a two-step process. First, Thomas Brandt, TUGCO's Quality Assurance / Quality Control Supervisor, transferred Atchison from the QA/QC group Brandt super-vised.11 Clearly, Brandt articulated legitimate, nonre-taliatory' reasons for Atchison's transfer. Brandt, an experienced quality control supervisor, had several occa-sions to observe Atchison's job performance, both from a technical and supervisory viewpoint, over a period of several months (TR 70, 224-25, 411-14, 601-02). During this time he had observed that Atchison regularly inspected work outside his area of responsibility (Id.;

PX-21); that, after counseling, Atchison still refused to confine his inspection to his area of responsibility (Id.); that Atchison repeatedly failed to apply proper standards in inspecting welds for acceptable indications of porosity (TR 79-81, 448-49, 534-45, 552-53, 626-31); .

that Atchison excessively prepared welds for inspection 11 Mr. Brandt has extensive experience in several aspects of nuclear power construction, and he has been a welder and a welding inspector at several nuclear facilities. He also has conducted numerous seminars on welding and non-destructive examination at nuclear facilities (TR 512-14). He has been a QC Supervisor and has been involved in evaluating environmental and seismic qualifications of components for nuclear power reactors (TR 513). He is a certified Level III Mechanical, Level III Protective Coatings and Level III Instrumentation Inspector (TR 512). Prior to Mr. Brandt's employment at Comanche Peak, Mr. Purdy had learned of Mr. Brandt, and, recognizing his vast experience and experti'se in the nuclear industry, Mr. Purdy attempted to hire him to work at Respondent's corporate headquarters in Houston (TR 670-71).

t

• '. e (TR 535-37, 567-68, 694); and that Atchison (along with other inspectors) took excessive time to prepare welds for inspection (TR 448, 552-54, 616-17).

Moreover, after Brandt reached his decision to trans-fer Atchison, but before that decision was implemented, Brandt received NCR 361 and the accompanying " pow-wow" note. Two aspects of this incident reinforced Brandt's decision to transfer Atchison. First, the NCR itself demonstrated that Atchison clearly lacked knowledge of program requirements that was necessary for the perform-anc'e of his job (TR 92, 424, 496-500, 757; PE Ex. B), and, second, the note left Brandt (as well as Mr. Purdy and Mr.

Tolson) with the clear impression that Atchison was

[ seeking to leverage the disposition of NCR 361 into a promotion (which Atchison had previously been denied), a f

t transfer or both (TR 564, 648, 701-02). All of Brandt's l

! observations, before and including NCR 361 and the pow-wow note, are legitimate business reasons for Brandt's decision to transfer Atchison, and any one of these reasons, standing alone, provides a legally-sufficient, nonretaliatory explanation for Brandt's action.

After Atchison was transferred out of Brandt's group, his fate was decided by Gordon Purdy, Respondant's On-Site Quality Assurance / Quality Control Superviscr.12 Initi-12 Mr. Purdy has been involved with nuclear reactors for approximately twenty-five years, with extensive experience as a OA/QC Supervisor. He has been employed by (footnote continued)

a .

ally, Mr. Purdy did not terminate Atchison; instead, he contacted four supervisors who headed other QA/OC depart-ments at the site and asked each supervisor whether he would accept Atchison in his group (TR 703-10). After all four refused, Purdy terminated Atchison (TR 710-12) .

Purdy's stated reasons for the termination were the evaluation of Atchison's technical performance rendered by Brandt and the fact that Atchison was unable to confine properly his inspections to assigned areas (TR 722-24, 739). Both of these reasons provides a legally-sufficient explanation for Purdy's decision to discharge Atchison.

The explanations of Brandt and Purdy are legitimate, nonretaliatory reasons for Atchison's termination. Brandt concluded that Atchison's shortcoming rendered him unsuit-able for employment in Brandt's section and transferred Atchison. Despite Brandt's unfavorable evaluation, Purdy attempted to reassign Atchison, and fired him only'when those efforts failed. Clearly, Brandt's and Purdy's testimony meets Respondent's burden of adducing " evidence (footnote continued from previous page)

Brown & Root, Inc. since April, 1979. Initially he served as the Mechanical Quality Engineering Supervisor, for the Corporate Power Group. (TR 669-70) Subsequently he served as the Group Corporate Quality Engineering Manager and the Quality Engineering Manager for the South Texas Nuclear Project (TR 669) . He has been the Site OA Manager at Comanche Peak since November, 1981 (TR 668-69). Prior to joining Brown & R o o t', he was a Quality Control Engineer for Bechtel Power Corporation at the San Onofre nuclear power reactor (TR 670). He also served for 20 years in the Navy's Nuclear Service before entering the commercial nuclear industry. (TR 670).

54 -

e . , ,

l i

that . . . [ Respondent] acted on a neutral basis."

Lieberman, supra at 65. As the First Circuit emphasized in Loeb, ":a]n employer is entitled to make his own policy and business judgments, . . . as long as this is not a pretext for retaliation." Loeb, supra at 1012,.n.6.

Having business judgments about Atchison, and having stated clearly the legitimate concerns that formed the basis of those judgments, Respondent met its intermediate burden' ~of~ going forward with evidence at the second stage of the proceeding. Burdine, supra at 254-55; Loeb, supra at'1011-12; Lieberman, supra at 65. This showing defeated Atchison's prima facie case, and, thereafter, the presump-tion of retaliatory animus dropped out of the case.

Burdine, supra at 255, n.10.

c. Atchison Utterly Failed To Adduce Proof That The Stated, Nonretaliatory Reasons For His Discharge Were A Pretext For Retaliation; Indeed, To The Extent Atchison's Evidence Addresses The Reasons For His Termination, That Evidence Supports Respondent's Actions.

As Respondent has shown, the ALJ turned the Burdine standard on its head, and required Responent to " demon-strate" that Atchison was fired for reasons other than illegal retaliation. See, Rec. Dec. at 9. The effect of this error led the ALJ to conclude the stated reasons for Atchison's discharge were pretextual because, in her view,

o te ,

I Respondent failed to prove the stated reasons, instead of I

retaliatory animus, were the basis for Atchison's discharge. For this reason, the Secretary cannot rely on the ALJ's findings of pretext.

Had the ALJ properly allocated the burden of persua-sion and production of evidence, she would have required Atchison to prove, by a preponderance of the evidence, that the stated reasons for his discharge were a pretext for purposeful retaliation. Burdine, supra at 256; Loeb, supra at 1011; and Lieberman, supra at e5-66. Clearly Atchison failed to meet this burden.

At the heart of Atchison's burden is the requirement that his evidence " adequately address the theory advanced by the rebuttal evidence." Douglas v. Anderson, 656 F.2d 528, 534 (9th Cir. 1981). Accord, Burdine, supra at 255-56 (the stated, nonretaliatory reasons serve to narrow the issues at the final stage of the proceeding); Lovelace v.

Sherwin-Williams Co., 681 F.2d 230, 245 (4th Cir. 1982)

(where the employer's proferred reasons for the challenged action is unacceptable performance, any evidence designed to show the proferred reason pretextual must address the alleged deficiencies). When the stated, nonretaliatory reasons for termination are assessed against Atchison's evidence, it is clear that he failed to adduce any proof that the stated reasons for his discharge were pretextual.

, , ti o Indeed, Atchison's testimony confirms Brandt's and Purdy's in many important aspects.

As shown in the factual summary (supra), Brandt cited four specific deficiencies in Atchison's performance.

First, he observed that Atchison incorrectly applied porosity standards in making his inspections (see also TR 79-81, 448-49, 534-45, 552-53, 626-31). In his testimony, f

Atchison admitted that Brandt had correctly assessed Atchison's improper application of porosity standards and that he had reviewed those standards in response to Bra'ndt's criticisms (see also NRC 3255). Second, Brandt observed that Atchison required excessive preparation of welds for inspections (see also TR 535-37, 567-68, 694).

Atchison's evidence failed to address this point. Third, Brandt observed that Atchison repeatedly inspected work that was outside his area of responsibility. Fourth, Brandt noted that Atchison persisted in this conduct after he was advised as to the proper scope of his responsibilities as a OC inspector (see also TR 70, 224-25, 411-14: PX-21). Atchison- denied that he regularly inspected work outside his area of responsibility, but admits that he was counseled about this problem (see also TR 7 0-74, 224-25). Significantly, the only evidence that Atchison adduced on this point was his own testimony, which testimony the ALJ ctated should be completely discredited.

.e s 1

i Thus, the unrefuted record confirms two of Brandt's four specific criticisms of Atchison's performance and only Atchison's discredited testimony contradicts the others.13 Under the holdings in Douglas and Lovelace, Atchison's failure to address and refute Brandt's criti-cisms forecloses any finding that Brandt's articulated performance deficiencies were a pretext for discrimina-tion.14 Douglas, supra at 539; Lovelace, supra at 246.

Purdy's articulated reasons for terminating Atchison were Brandt's evaluation of Atchison's compet.mce as a welding inspector and his inability to limit the scope of his inspections to his assigned tasks (TR 722-24, 739).

As Respondent has shown, Atchison failed to show Brandt's criticisms were a pretext for retaliation.15 Moreover, Atchison also failed to refute Purdy's testimony that the other QA/OC supervisors at the site refused to accept 13 Significantly, Brandt's testimony is supported by the testimony of Smith and Purdy, both of whom corrobo-rated Brandt's testimony in all material respects. (E.g.,

TR 404-14, 426-27, 436, 447-49, 456-57, 478-82,-694, 701-02, 722-24, 739, 757). '

14 Atchison's evidence that his work was generally satisfactory does not alter this result. In response to similar claims of good performance, the Court in Lovelace rejected plaintiff's evidence on the grounds that the evidence failed to demonstrate that the employer's specific criticisms were untrue. Lovelace, supra at 245.

15 Quite clearly, Purdy was entitled to rely on Brandt's judgments. Brandt was an experienced supervisor and a member of senior management whose judgment was routinely relied upon by Purdy. Moreover, Atchison failed to adduce any credible evidence that Brandt's judgments were incorrect.

- 5G - ,

e 'a

,,u iison in their groups, and, under the holdings in Douglas and Lovelace, this failure forecloses a finding that Purdy's stated inability to secure another position for Atchison was a pretext for retaliation. Douglas, supra at 534; Lovelace, supra at 245-46.

When it became certain that Purdy could not find a new position for Atchison, Purdy was faced with two choices -- retain Atchison indefinitely at a salary of

$13.75 per hour when there was no work for Atchison, or discharge him. In light of these choices, and the unfavorable evaluation rendered by a trusted, experienced superior, Purdy discharged Atchison. Any other competent manager would have reached the same decision.

J T

e f 'a f

6. Complainant's Job-Related Inadequacies And Dishonesty Preclude An Award Of Reinstatement Even if Respondent violated Section 210, an award of reinstatement is not appropriate in this proceeding. As the record demonstrates, Complainant's job-related inadequacies would have justified his discharge from employment in any event and precluded an award of damages or reinstatement. Moreover, reinstatement and back pay

! ~~

cannot be awarded af ter mid-June of 1982 because the discovery of Complainant's knowing misrepresentations on his job application and lies under oath at the NRC proceeding would have resulted in his discharge at that time.

In Mount Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287 (1977), the Court held that the refusal of a school board to renew the contract of a teacher because he exercised rights protected by the First Amendment did not give rise to a claim for damages under 42 U.S.C. Section 1983 if the school board "would have reached the same decision as to respondent's reemployment even in the absence of the protected conduct." The court's conclusion was based on its reasoning that a borderline or marginal candidate should not have the employment question resolved against him because of constitutionally protected conduct. But the same candidate ought not to be able., by i  ;

. , , - o - ._ - - - _ - . - _ _ - -

.e 'tl, engaging in such conduct, to prevent his employer from assessing his performance record and reaching the decision not to rehire on the basis of that record, simply because the conduct makes the employer more certain of the correctness of its decision.

Id. at 285. As detailed above, Complainant has demonstrated his inability to perform his assigned tasks (see, discussion, supra), and he should not be reinstated merely because he has cleverly couched his discharge in terms of Section 210. His job-related failings would have justified his discharge in any event.

Moreover, reinstatement and back pay are improper as of mid-June, 1982, because Respondent had become aware of Complainant's misrepresentations as of that time and would have discharged Complainant upon their discove::y. The ALJ found that "neither Mr. Purdy nor Mr. Brandt was aware of any of the Complainant's false representations as to his educational achievements until they came to light in connection with the July, 1982, Nuclear Regulatory Commission (NRC) hearings." Rec. Dec. at 3. She nonetheless awarded reinstatement on the grounds that (1)

Brown and Root had possession of the unaltered education verification form since July or August, 1980, and did not act upon it and (2) it was not established to the ALJ's

,e rr, satisfaction that " Brown and Root would have taken action to terminate Complainant based on hic application lies...," had Drown and Root actually known of ,them.

The ALJ's overwhelming solicitude for Complainant cannot withstand rational analysis. First, the mere presence of the verification form in Respondent's files establishes, at most, a breakdown in Respondent's employ-h ment screening procedures. There is no evidence of record, circumstantial or otherwise, suggesting that, prior to June, 1982, anyone in a position of authority with Respondent either knew in fact of Complainant's misrepresentations or deliberated over whether action should be taken against Complainant for those misrepre-sentations. Thus, the evil, if any, in Respondent's actions was that Respondent established a system to screen out the prevarications of job applicants and the system

. failed to identify claimant as a liar. To hold, as the ALJ apparently did, that Respondent's failure in this regard constituted an acquiescence in Atchison's misrepre-sentations is to punish Respo'ndent for setting a trap for dishonest applicants and to reward an unquestionably dishonest applicant for escaping its jaws.

Second, the ALJ incredibly relied on the

" conditional" (Rec. Dec. at 26) nature of (1) the statement in the Respondent's job application that "any misrepresentation of facts may be cause for my dismissal"

r t

>e (NRC Ex. 132); and (2).Mr. Purdy's testimony that "the obvious step is that the employee would probably have been terminated" (TR 682), in response to the question of what steps Respondent would have taken if the Complainant were still employed when- the misrepresentation was revealed.

As to the job application, we think it inconceivable that Complainant deliberated long and hard over the "condi-tional" nature of the warning against misrepresentations in deciding to falsify his application for employment.

Indeed, the utter nonsense of this contention is borne out by ' Complainant's testimony in the NRC proceeding:

Q. I see. So you were aware, then, sir, when you applied for employment at Brown and Root that you were subject to termination for misrepresentations on your application?

A. Yes.

(NRC 3272). The ALJ's reliance'on the " conditional" nature of Mr. Purdy's statement was likewise absurd. It hardly suggests an established policy or practice of tolerating material falsifications in applications for

~

employment. This is especially so in light of his testimony on the same page cited to by the ALJ :

O. Does Brown and Root have a policy in regards to action it will take on misrepresentations or falsification of employment documents?

A. If it is proven that there's been a falsification of employment on applications or documentation

-r tfe l

l that led to the employment, the individual is subject to immediate termination, which is directly on the back of the application for' employment.

(TR 682) .

Third, the ALJ relied on a relevance argument that was premised exclusively on the notion that Respondent was aware of, and failed to act upon, the misrepresentation in 1980. She found Purdy's testimony not to be ' enlighten- _ -

ing' as to personnel practices in mid-1980, apparently believing that practices at that time were controlling on ,

the issue of whether Atchison would be subject to dis-charge for his lies. As noted above, however, there is no legitimate basis in the record for finding Respondent to have acquiesced in Complainant's misrepresentations in 1980, and the personnel practices of 1980 are accordingly irrelevant to the discharge issue. The relevant policy is that in effect_when the misrepresentation came to light, which, as Mr. Purdy testified, would have resulted in Atchison's dismissal. Indeed, Purdy testified that another employee had been given the choice of being termi-nated or resigning under similar circumstances. TR 683.

The most disturbing feature of the ALJ's findings on this issue is that they are all based on strained and conjectural readings of the testimony and exhibits. The judge does not cite to any evidence that Respondent knew of Atchison's misrepresentations prior to June of 1982, or

.. , f ,

that Respondents have ever tolerated a material misrepre-sentation in a job application. There is a good reason for this lack of citation. The only evidence that exists is that Respondent did not know of the Complainant's falsehoods and would have immediately discharged Complain-ant if it had. This evidence can lead to only one conclu-sion; it would be unfair to saddle Respondent with a dis-hones: employee that Respondent would not tolerate in any circumstance.

In Williams v. Boorstin, 663 F.2d 109 (D.C. Cir.

1980), the D.C. Circuit reversed the judgment of the

! district court that the Library of Congress had violated Title VII of the Civil Rights Act, 42 U.S.C. 200de-16, in discharging a black employee for misrepresenting him-self to be an attorney in his application for employment.

The employee had, in fact, only. completed one year of law school at Dalhousie University Faculty of Law, but indi-cated on his application that he had completed three years ,

at Georgetown.

In finding that the employee's dishonesty in his application provided a lawful basis for his discharge, the

court made the following statements that are pertinent to l the issues raised in this proceeding

Mr. Williams or any other Library employee, civil rights advoccte or otherwise, could simply never be entitled to, nor expect to retain, his or her job after establishing such a formidable record of lying to l

1 l

-r ( t'o l

l l

his employer. Trustworthiness, reliability, veracity, good judgment--these are all material qualifications for any job.... Id.

at 117.

And later:

The lying itself, also from the

' outset, made him an unfit employee of the Library of Congress, wholly apart from the question of hic not being a lawyer or his serving well in his assigned tasks; The district court totally failed to appreciate s the real-life decisions that an employer must confront. Id. at 118 Like the district court in Boorstin, the ALJ totally failed to appreciate the real-life decisions that an employer must confront. Especially in a sensitive and important area such as the nuclear industry, there is no e

room for a safety inspector who has demonstrated chronic tendencies to lie -- he lied about his job-related qualifications on an employment application, falsified documents to which he had access while on the job, and made " misstatements at points under oath" at an NRC proceeding. Rec. Dec. at 3. The overwhelming need of both the Respondent and the public to have quality control inspectors who are capable of performing their jobs reliably and with unquestioned integrity dictates a denial of Complainant's plea for reinstatement and the termina-tion of any back-pay award as of mid-June, 1982.

I

- - - - - - . - , , - , ,-, ,-e r- - , --w----,,--r-, - w -- ,-m, ,,-v--- , -- ~ - - - ,+

.( _ / g

e. In Performing His Responsibilities Under .

Section 210, the Secretary Must Base His Findings On Substantial Evidence And Is Not Bound By The ALJ's Findings.

Because the ultimate responsibility for finding a violation of Section 5851(a) rests with the Secretary

( 5851(b)), it is crucial that the Secretary carefully scrutinize the whole of the record in this proceeding to determine whether, in his independent judgment, a violation of Section 5851(a) has occurred. In making this det.ermination, the Secretary is free to evaluate the record and reach his own conclusions, provided they are supported by substantial evidence.16 Only the credibility determinations of the administrative law judge are entitled to significant deference 17 and, as detailed supra, her determinations on credibility counsel strongly in favor of a finding for respondent.

16 See, Bangor an'd Aroostook R.R. Co. v. ICC, 574 F.2d 1096, 1110, reh. denied. 578 F.2d 444 (1st Cir.) cert.

denied 439 U.S. 837 (1978) ("A reviewing court may consider the' decision of the ALJ as part of the record, but, except on matters of credibility, it is due little deference when the Commission has made an independent ,

evaluation that is substantially supported by the evidence."). See, also, Champlin Petroleum Company v.

O.S. & H.R.C., 593 F.2d 637, 640 (5th Cir. 1979)

(Although commission's decision was inconsistent with ALJ opinion, it was reversed "only because it lacks the )

support of substantial evidence."). l l

17 See, Bangor and Aroostook R.R. Co. v. ICC, supra; see also, General Dynamics v. O.S. & H. R. C., 599 F.2d l

( ~

~453, 463 (1st Cir. 1979).

l l

l

/* ( o Conclusion

, For the foregoing reasons, Respondent submits that the ALJ's decision should be reversed and judgment l

rendered for Respondent.

FILED, this 17th day of January, 1983.

Respectfully submitted, 7Peter A R.B NeL McLain LLW U Brown & Root, Inc.

Legal Department (01-7th)

P. O. Box 3 Houston, TX 77001 (713) 676-5491

~

N)W-Wayrfe S. Bishop Bru6e L. Downey

[

Richard K. Walker DEBEVOISE & LIBERMAN 1200 17th Street, N.W.

Washington, D.C. 20036 (202) 857-9800

V

'y f y .

i-UNITED STATES OF AMERICA BEFORE THE SECRETARY OF LABOR CHARLES A. ATCHISON, $

Complainant, $

vs. $ CASE NO. 82-ERA-9 BROWN & ROOT, INC.

Respondent. $

CERTIFICATE OF SERVICE I hereby certify that on January 17, 1983, I have caused a copy of Brown & Root's Motion For Leave, and attached Statement of Pos'ition And Exceptions In Opposition To The Recommended Decision Of Administrative Law Judge Ellin M. O'Shea to be served by first class mail, postage prepaid, upon the following:

Kenneth J. Mighell, Esq. Office of the Secretary Cowles, Sorrells, United States Department Patterson & Thompson of Labor 1800 One Main Place Executive Secretariat Dallas, Texas 75250 Room No. S-2513 200 Constitution Avenue, N.W.

Washington, D.C. 20210 Counsel for Plaintiff e ~

J4--

R'lchard K. Walker i

. - - ..