ML20080T496

Forwards Dept of Labor 830324 Recommended Decision & Order of Administrative Law Judge in W Royce Vs Bechtel Corp Case

ML20080T496
Person / Time
Site:	Palo Verde
Issue date:	03/30/1983
From:	Butler S BECHTEL GROUP, INC.
To:	BECHTEL GROUP, INC.
Shared Package
ML20079G392	List: ML20080T473 ML20080T496 ML20080T502 ML20080T508 ML20080T526 ML20080T552 ML20080T582
References
FOIA-83-450 NUDOCS 8310240212
Download: ML20080T496 (12)

Text

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,' o Bechtel Power Corporation G

interoffice Memorandum

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~b To Joseph Ze:

File No.

sSiect Wallace Ro cf v$

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r March 30, 1983 From S. D. Butler 1

of Legal & Insurance copies to C. W. Lacey At PVNGS Ext-2046 M. Parenteau D. Buchholz L. Jeffers Enclosed is the Recommended Decision and Order of the Administrative Law Judge in the above referenced matter. As we have discussed, this is a favorable result and it should become the final order of the U.S. Secretary of Labor within a short period. After it has been entered as a final order, Mr. Royce has 60 days within which to seek review in th'e U.S. Court of Appeals. I will, of course, keep.you advised of any such developments.

Again, I would like to take this opportunity to thank you and Messrs.

Buchholz, Parenteau and Jeffers for your efforts.

Should you have any questions, please do not hesitate to call on me.

SDB:tm Attachment i

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SERVICE SHEET l

j..gd : Case Nomo : Wallace'Rova l

I Cuno No. 03-ERA-3 Titio of document: Reecmmended Decision and Order I.qggur. A cop y o f the above-named document ~

acnt to the following won partina listed below s...

.dG .'Jamus L.

Loather. Esq.

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'718 East Bothany Home Road Phoenix ~ Arizona 85014 1,. }Jg,;+.

f}jfsJJ'. Stephen D. Butler, Esq.

sff.J.

50 Beale StreetyezSanFrancisco,CA 94104

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Buchtel' Power Corporetion 3-50 Beale Street

. Son frencisco, CA 941(34

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,Wolloce Ruyco

" 718 E. Dothuny Home Hood Phoenix, AZ B$014 John Breen Aree Director

-U.S. Department of Labor 2120 North Central Avenue l. TD:C, ), Suit e C-13 0 i Yi P

Arizono 05004 4 m.-w hoonix, l

~ p t:Curnelive 5. Donoghue, Jr.

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~~'7 Deputy Associate Solicitor 4"--

P-for Employee Benefits 4

'O f fic u of the s n t i n i r.n r

, 3<d-l'.U.S. 0.9artment ;r (otor l

...!#c W a s h i n.n o n, D.C.

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Drrica or AcumuTursvv LAW)ygQH f '.,

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Svite 700111120th Stuci N.W.

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s AN NALLACE RO'tCE, jNAL

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s IQg 79';4 7 t'Caou No. 03-CRA-3 2 "6 i h %" R

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SECiiTEL POWER CORPORATION, SQ,g*

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Reepondent t

'1 Petitioner

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ty Oemes L. Leather, Eng.

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710 East Dotheny Home Road 1

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Phoenix, Ari:ene 85014

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Far the Complainant 8 >;

Stophen D. Butler, Eoq.

50 Beelo Straat

. San Francisco, CA 94104

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For the Roopondent

.._ Be fore a ' REND E. BONF ANTI Administrativo Law Judge s.y n

Recommended Decioion and Order

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Thio matter arisen from a complaint pursuant to the Energy Reorganization Act of 1974, 42 U.S.C. 5051, and regulatione in 29 CFR Part 24 Following a datorminution by the Employment Standardo. Administration, Department of Labor that the com-plainant woo entitled to ro11o f, and, thuo should be r el.no t a t ed to bla former job, the Roopondent-Patitioner requestad a formal huaring on t.ia mattar.

The hearing on thia " whistle-blower" cuae was hold on January 27th, 28th, and 310t, 1983.

ISSUES

~

(1)

Whether Wallace Royce was on amployoa or Bechtel Power Corporation for ' purpocos of being entitled to the protection of l

_. -- t h e Energy Reorganization Act o f 1974.

If not (2) woo Royce

- engegud in protected activity at the time he won terminated by respondent, (3) woo the protected activity a motivating factor in his job totmination, and (4) would the coloooe havo occurred in the obsenco o f the allogod protected outivity.

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Prat etion Under the Act j

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j explainent. won.

"omployee" of Roopondent "empidyar" an i

purposestof the protection provisions of the Energy flo -

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Me zetfon Act o f 1974.

. Title 42 U.S.C. 5851 reedo oc follows:

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7'*( e ) ' -D i a c r imi n a t i o n : sagainst omployee.

No I

$6$ Employer:

moy.diocharge any employou

.y lf or othorwinn diacriminate againot any employuo adl4

' w i t h reopect to blu componnotion,

tormo, f.

,Tcondit'ione, or privilagos of employment g.g because the employee.

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.W (1) commenced, ' counod to be commenced (G.

or is about to commence or cause to.ba i.$.

commenced a procoading under thio Act or g?

4hi[E the Atomic Enorgy Act of 1954 or a procoading for the administration or on-7 gg.

forcement of any requiremento imposed under

,y;gi thin Act 2.m.jg

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I find that the compl ainoi' t 's concern about coercion,

.C.Ai. quality, quantity and duplication of. testing exprenned in.the w.,4... Royce memo caused a proccoding to.be commenced under the Act.

2...The thresnold question of whether ho io ontitled to the pro-M @ >tection of the Act hingeo on whether he woo.a wo rker 'whom

congress intended to bo protected from employment diacrimination

.,.Agg f o r blowing the "whistlo".

- The text of the' Act includes a

i. L h.'congroculonel declaration o f policy-fo r development and uti-

.,P"'^ 11 z a t io n of energy sourceo, as well ao advancing the goals of

.gs restoring, protecting, and enhancing environmental quality, ond

..e.?j *. t o acaure public health and s a f ety.

In 1978 Congrees amended C '-

the Energy Reorganization Act by enacting the abovo employeo T ' prut oction previoicn.

The purpose was to protect employoso.who

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the Act - Energy Roorganization Act of 1974 Reopondent - Roopondent Petitionor, Bechtel Power Corporation CX-Complainnot's exhibit RX-Ronpondent's Exhibit TH-tronocript of houring Bucholz memo The memorandum on " Productivity" by David

- Bucholz to Walloco Royco doted November 12, 1902, (CX 2)

<4.

Hoyce memo The momorandum on Co e r c i o n at Polo Verde c"

Nuclaur Plant" from Wolloco Royce to David Ducho12 dated November 1t, 1982 (CX 3) 1,.

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? snake public information regarding nefety hazards at nucleor power

.plent conutruction citos.

The legiolativo history of Soction

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! 'yB51.exprosoos the concorn that:

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7 Any workar who is called upon to testify or who giveo.i n f o rm a t io'.i Twith respect to

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on.oll eged vi o l o t'i o n of the Atomic Energy Q'

-Act.or o r el a t e d low by hio.empl o y e r _. o r

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who filos or institutes any proconding to en forco ouch law againot an employer may be g,

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subject to discrimination.

.gp-Although Section $851 dopo not d e fino h employee" it must 3,#l be given o. broad in t e rp re t a tio n~ in ordor to carry out the v4.3. E - legislative purpose which includea the assurance of huulth and safety of the public.

Workern such as the complainant in the

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instant ceae, in positiona to protect the b o ul t h and s a fet y

.i.s.*p,. (.o f the public, e h o_ul d be protected from all forme of job dio-Qfg.g criminution for reporting hazurda.

The Respondant had a sub.

%uw. otontial number of such workers working alongside 'ite regular

. ;$57did emp l o y e e s.

To protect a co-worker omployee end not one in compl eanent 's ocaition would appvar to weaken the primary purpono

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of disclosure to tna public, further, to deny protection ~to a

'dy W !wperson in comolainont's category o f' wo rkers wo ul d provide g.t i

means for employers to avoid the c onct ions of the low, at

,,., "j, a the expense of tho.public hoolth or 'sofoty..

Therefore, I con-l,g.~.,olude tnut.. c onpl ain a n t. was an "employes" for purposes o f.. pro-

.gtection under the Act and woo engaged in protected. activity at

,4g.the time o f hia discharge.

Summary of Evidence n u <.:

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The., complainant, Wellace Royce, began working 00 a star't-up electrical tent engineer for Bochtel Power Corporation, respondent, on August 3, 1982.

To perform tho atert-up services

.et the Polo Verdo Nuclear Project, respondent u t iliz e d thu services of temporary contract workoro (job shopporo) in addition to its regular amployees.

Royce was supplied to respondent by International Sta f fing Consul t anto (ISC), a job shop agency.

Respondent's agrooment with ISC otates that auch individuolo i

i are employees of ISC and not Bochtel Power Corporation.

The job i

shoppare are expecterd to be fully trained and highly competent, for which they are 00mponaated at a higher rate than the regular employeen of Sochtel Power Corporation.

They are subject to relouan if their performance does not most the high atendards exputted.

The servicon of o job shoppar are terminablo et will Gnd there 13 no obligation to rotein any even if per formar.co is i

n utie f actor y.

In return for the lack of employment occurity, they are compon00tod at a rate well abovo the componention of rnDpondent's employOOo in Dimilar capOCitiOG.

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..q ff all ac e' R o y c e was terminotod from the job by respondent n 55'vemb e r..:18,.1982.

Royco contends that he wao firod baenuso phe irota c a~.:momor nndum about coorcion at Palo Verdo Nucloor -

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1. Plant'and: cent it to various agencies.

Roopondent contends -

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wee terminated because of poor performance and

!ih'" 7(Nfproductivity,. including

( ithet :Royes not uti1~izing his timo nor the time of

4. hio croft workers of fectiv ely' '. and t h at the memorandum did not c-

\\ F.'h'hl.l% k motivate ths tert.!ination.

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Royce tootified as follows: David Bucholz'becemo his super-6 1

visor in oorly pctober 1902. ;Detween that; dote end November 12, 1982, Bucholz brought the metter of low productivity to his

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diettantion 4 times.

(TR-132)

The first time was ~ prior to the j:f5-&*"been i

count" oyotem.

The boon count won a mdnogement tooi to

$E:'? ' d e t e rmi n e p r o du c t!1v i t y, and a l.1 workers wsre to produce one.

.2f. complete sloctrical test pucknge por shift or else lose their

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jobs.

Royco woe concerned that the. quality'of the tcSts might be

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. d '., comprcmised for cuantity and felt coercion since~the " boon count"~

9lS began.

Royce.admittud he had productivity probloma and that he.

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probably would havo performed better if'he had gotten along.

.j.M..better with Buchol2.

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Mr.

Devid Suenoi:, complainant'a~dupervioor, wrote-tho-following memorandum:

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. HEHOR ANDuH

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From:

D Suchol:

' bate: ~11-12-82

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To: Wallace Royce ;

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Subject:

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After reviewing your level of productivity

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for the. poet three weeks, it observed to be algnificantly below the norm o f our group.

'The matter has boon procented to you, without' eignific ant improvement an d..: r e sul tn..

Plance

' correct this problem immediately.

~ '

cc M.:Parentoou Thio will be referred to as the Buchol memo, and is'identi-find in the record ee CX-2 Mr. Wallace Royce ruspondad with the following 'momorondum to David Bucholz HEMORANDUM TO: D AVID OUCliDLZ DAT3:

11/14/02 WALLACE RDYCE SUD3ECT CDERC10N AT PALO FROM:

VERDE NUCLEAR PLANT WINTERSBURG, AZ.

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, - n -? y Artur rocoiving your memorandum con-h;y:

cerning my productivity 1n.our group, I

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f e e r. ' riow la the time to inform you of my-

' T l.[/,.-l foolinga 'a f tho 00 colled " boon count",

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Whun you tall myoolf as well ao othoro

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thatiit 10 ono "boan" per ahlft, por man,

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to be performod, " bean" meaning (a toot procedure of a certain.itom in a nub nyotom),

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or else hit the road.

Surely you munt realize

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that.this is a form o f coerclun.

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The poaulbility of locinq my.l o b for. lock q.(

u r surricient " bean" count, weighs heavily

, JJ. p.l un my mind, a tremendous pressure.

You have cent nyeolf, OD.well as othora, out knowing full well that the generic test

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had been porformed proviously.

Some as

~' r meny as four times.

When approached by mycoif and sovising you of it, your interont was only l* ? "^.;

in the " bean" count and not the duplication.of e r ro r t s.

Surely you must know that thin'in-countur productive, as well es. quito coatly to 1

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A.P.S.

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'I will not vicista any N.R.C.

standarda, or cheat the customer (A.P.S.)

by knowingly duplicating uffort on an item in the sub-system uiready compiated for the oake of your l

" bean" count.

Your memorandum-staten thot my productivity in the past three wouka in below the norm o f our group.

If you will tocall I

that is when the 80 called "boun count" went l

into e f fe ct.

Prior to thut timo thorn were i

nu objectiono to my performanca or to my productivity no a start up enginnor on thlu pro.iect.

Know full well that I intend to continuo my annignment here and that I will compluto my obligation 0 directing tout proceduroo.

But I

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r-will not violate procuduro, 'will not "poncil

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' Whip" (write in information on data sheeto

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.with out physically doing - the toot) for the

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WJ aske of a "be on; count".-

For when I completa i

4W tho.tpat it will be done 100%, and all the Mhh information entered on the dato cheet will bu pfp;g.h true and c o r r e n't f o r, c.v e r y test corrios

~ s q'<J, tuatimony of my e f fo rt a as being correct with

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my elgnature.

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Know now that copino have be en.. made of

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this le,tter and of your memorandum.

And a,4

.tn the event of my releece.or further dureas t

as a start up engineer on this project, for not ecoplying with your "been nount" they will bu roleseed to the public media, the ti..R.C.

and t o t.. P..S.

i Thia is my response to you, I will not comply with your " bean count", but will continua my dutieu es otort up ongineer.

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will n=t be sub. ject to coercion.

It is also my.intantion to trans fer. to another group i

leadar.

It is regrettable that such a matter ce this has token pluce, but I feel my response.ie quito necessary.

Halluca R.

Royce cc/Nucleer Regulatory Commission Federel tubor Rolations Authority'

i Civil Richte Diviolon. Dept. of Juotice Unfair Labor Practiceo, NtRB The Phoenix Gazette

-Arizona Public Service Co.

American Broadcastina Co.

Columbia Broadcunt.'ng syntums National Broadcooting Co.

tocol Television and Radio Stationa l

8echtel Power Corp.

M. Parenteuu The abovo is an extruct of the more significant portionr. or the mumo.

Thu cumpiuto document 10 identified au CX-3 in thu rucurd, und horoinafter will be referrod to no the Royce I

memo.

Upon t es ti fying Royce admitted to uomo inocuracion in hio memorondum: baan count woo in effect 6 w o o f< s (not 3 weeks)I i

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was an objection to his productivity prior too the boon

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coun.t; copics had already-been cent to 4RC, APS, etc; that

.(l,U he-knowinQ1y f aloiflod production report entrias to tGhe a v@.-

beso count. 1/

As totwhy he wrota the memo, Royce otated "my Tj *C position was" in jeoperdy," "If I were to be termineted for

- J-productivity 'or b e c a u s o '.I wrote this. letter, now was tho timu 7'

to say i t"..

The r o ss o n-h e..initint ad t h e memorandum et that time was b e c a u s e, o f t h e ' '.f o e r - o f looing his job.

(TR-222 to 257)

J' The crux of this ceco is~that if Complainant woo discharged because of his memo. he will preveil in thia action; but if the respondunt proven that he would have been diochargad even in the aboence uf this protected activit y, ~ t he complaint will fail.

David Duchol:

testified that shortly after' ho bocame Royce's suporvisor in September 1982 he noted his poor production and lack of ef fort.

The basis of hio opinion wua from obser-vations, such een lack of effort, oocializing in the arou,

. - permitting his crnft (labor oloctriciono) to lounge in tho trailer.

Also Bucholz'o fo rme r oupervicar noted that Royce won not wheru hu was eupposed to be working.

He spoke to Royce once be fore the "been count" began und 3 times thoroafter concerning his job purformance.

He was not completing his teet packages und not u till:1ng his time and his craft time 'e f ficient ly.

Bucholz brought the matter to the attention of the next higher super-

' visor.

Roycu was seen s o ci al izi'ng ton aften and hin. croft were not working.

No impravement in performance..was noted'und Bucholz wrote a memorendum on November 12, 1983, and gave it to Royco thut date.

A copy.wwa given to Mr. Paronteau.

Bucholz testified that he did not recommend terminution.

He intended the memo to mot.tvate,Royce to improve or that he be transferred to.another group.

In uny event he had no authority to trunu fer or terminato him.

Parenteou was employed by respondent on October 19, 1982 i

and became electrical group supervisor on November 1,

1982.

l lie testified that he made the dociolon to torminate Royco on November 12, 1982 (Fri), the dato Bucholz gave him the memo-rendum. He diacuooed job shoppera with Hr. Jafforu, the personnel representativo and told him to roleooe Royce.

On the following Honooy morning Novembo.' 15th, Royce handed him hio memo.

00cause of the possible advaroe publicity from thio memo noting that copieu were sunt to the now modin, he triad to contact Jef fers l

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Roupondent E xh ib i t 6(A) shown thot Royce claimed 25 tuats completed in 29 workdayo.

There ore 7 duplicato entrien.

l He complotod onlv 18 tanto in thoco 29 dayo.

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.Ify b u t< w o e unable to reach him until Novombor 16th.

Jefforn, who had not yet terminated Royce, decided to ~ contoct uppor manugo-me'nt.. Parenteau : could have trans ferred Royce but decided against

.i t.

~ Paronteau t es ti fied that he could have dono something if the matter had.boen brouaht to hio..ettantion, prior to thu Bueno12

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memo not the.Royce memo.

Ho' contradicted testimony o f Duty and Nakaraki concurning~a conversat' ion.

the cofotoria to the offect that the Royco memo caused the terminotion.

Je f f era testifiud that he becuma Paraonnel repreadntativo on November li, 1902.

On November 12, '1962 Parenteau brought the Bucholz memo over and cs.

directed me to releaue Royce.

Je f fers explained that memos are not written t o '",j o b. o hop pora" becouos if not per forming they ore releceed.

He.was unable to handle it that date and plonned to do it on Saturday'. (13th).

He arrived late and Royce had left.

On the following Monduy morning en urgent matter prevented him from seeinn Royco.

On Tuonday (16th) he received a col! from Parenteuu, went to his offica and road the Royce memo.

He told l

Parenteau that thera mi a t. t be a problern roleosing him ao he hec to inforn management of the contents in' the letter.

Je f fere

" A*.o collea Mr. Zerucna who suggnated they proceed.

On Wednooduy (17th) a controveroy duvaloped with APS on to the proper pro-cedure for termanating a job shoppor.

It was resolved.that agreeablu, and Royce was releesod on T

respondent's procecuro was

L g"'Novemoer 18th.

Hr. Zerueno, stort-up manaque for the respondents J.

Pela verdu projict,'became o_ wore in' mid October 1982 of a problem

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with Royce.

On Novemoer 16, 1962 he became aware of a problem N'".."" concerning o job s hop employee, e complication had arisen s.&T concernino termination, and, discusalon with APS.concerning

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procedures to terminata.

He corroborated Jeffers testimony.

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Nakarski and Duty were electrical start-up engineers..

Nakareki -was terminated for other reasone and Duty still worka there.

Nakaroki testified. that during the conf erence in the cafeterie,- Parentony said that Royce would, probably still have his job if Royce had como.to. hlm.

Duty t es tified that Parenteau received both memos at the como timo, and ho conaldered the Royce memo os a throot and acted immediately.

I FIrJDifms AND CONCLUSIONS I have c are fully evoluoted the evidence in this cose along with my annosament o f dumounar and crodibility' o f the Witnesses.

.1 fully crodit Bucholz'n testimony as to the timing and circum-stancos looding to the inouunca of the productivity memorandum.

I find that the Royce memo woe motivoted primarily by fear of losing his job, but auch doon not preclude him from the protection of tho Act.

I note tho admitted "inocurrocios" of hin momu.

I fully credit the teutimony of Puranteou and Joffuro.

I find tnot the d ec ).a io n to terminute complainant wao mudo on nuvumbur 12, 1982.

Tho fact that it wun not communicated to

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comp'l uin ant until November 18, 1962 is. supported by a rational

' wf ex pl an tition us testified to by Parenteau. Jeffera, and Zerucha.

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T he 'deciolon, t o terminate woe mode be fo re the Royce memo'or November 14:, 1982 was diatributed.

Teotimony f r om Outy and Nokorski was unporouosivu s.in rebutting the more credible tuoti-many of the circumstances.

The Raapondent hon met his burdan of proving by a priipo'ndo r anco ' o f tho evidence thut. complainant was terminated from employmont.fo r o_non-diacriminutory runoon.

The evidence, establishes t; hot' complainont's-job purformance (productivity lack o f of fort, too much so ci al izi'ng on the job, and inef ficient utili stion of his cruft employees) was below averego in the opinion of his immediate supervicor Buchulz and next to immediate suporvisor Forentanu.

Whether their opinion, wee based on documented evidence is not crucisi.

I fully crodit Buchol:'s tectimony.

Complainent himeelf acknowl edged he had productivity problems.

I hove discounted the post-termination production analyais in R 6(A) which reveals a for lower pro-duction thun shown by preuxiating records.

Whether complainunt's performunce wao objectively unootisfactory la irrelevant.

" Job shoppers" were torminoble at will by reepondent, even if they performed in a satisfactory mannor.

Complainant was compen-aated at a rate above the compensation of regular employees of Respondent, in return for lack of employment security.. Absent a-showing that th'u worker - was disenarged for ex e r cis.t ng a right under the Act, en employer may discharge. e worker for. any ressun and not violate the Act.

Thus I find that the respondant had a legitimutu non-discriminatory reueon for t erminating. complainant.

Complainant' contends that he was terminated because of engeging in prutected activity.

He has established coverage under the Act and.that he wee engaged in protected activity

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et time o f. h i e ("i s c h a r g e.

The facts indicate e duril motive

. 'ssh discharge al t u t s t io n~.

The applicable caen low ist Mt Healthy

,,g.,. y City School District Dourd v.

Doyle 429 U.S.

274 (1977); vertcht~

9.'

t. a n e Inc. 251 NfRS 100.3 (1960), ~off'd NLRB v. Wrioht Line o62 f.2d 099 (1st Cir. 1981); and NLRB v. Nevia Industraee, inc., 647 F.2d 905 (9th Cir.

1981).

C o m p i a z n a n t.

hos made a prime feele case sufficient to support the in fer e nc o that p r ot ec t.u d conduct a.

was a motivating factor in the respondunt'a decision.

Under the VF' Wrioht rule, the burdon anifte to the employer to demonstrato tnot thu uame action wo u.l d have taken place even in thu obeencu of the protectud conduct.

Thin rule originateo in Ht Houlthy, supra, wherein the court statud that the employer must unow by ~a preponderunce of the evidanco that it would have reached tha eomu 7'

decision even in the obsencu of the protected conduct.

In order l

tu satisfy this "but for" test the employer han the burden to prove that he would have acted the aumu way if only the velid ground had existod.

The 9th Cir. appliod the Wright rule in Nevis Induotries, aupra.

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It in my....31 union that: (1)' complainant Resp'ndent for purposon of the protonted conduct provisione of o

was an employee of the Act, (2) complainant wao engaged in protocted a c t iv i t y at the.

tithe - o f. di sc h a rge, and.(3) the Roopondent hoe oustained his burden of por00091on that storminution would have occurred even in the obscrico o f f.he prot uct ed.conduc t.

Relief fur complain &nt le denied.

'.q..

Hecommended Order It in hereby recommended that the compluint of Wollocu Royce be disminaud with projudice.

4Q e ri

_ K., e

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rJh % sj Heno r. vonranti "dU" 0 4 idAR 1963 Dated Washington, D.C.

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