ML20148S523
| ML20148S523 | |
| Person / Time | |
|---|---|
| Site: | Callaway  |
| Issue date: | 11/17/1978 |
| From: | Bancroft M PUBLIC CITIZEN LITIGATION GROUP |
| To: | |
| References | |
| NUDOCS 7812010357 | |
| Download: ML20148S523 (18) | |
Text
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UNITED STATES OF AMERICA j.
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C NUCLEAR REGULATORY COMMISSION
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-Before the Atomic Safety and Licensing Appeal Board c.,j In the Matter of
)
) Construction Permit Nos. CPPR-139 UNION ELECTRIC COMPANY
)
CPPR-140 (Callaway Plant, Units 1 and 2) )
WILLIAM SMART'S NOTICE OF HIS REINSTATEMENT On November 1, 1978, William Smart won the grievance pursued on his behalf by his union.
The arbitrator's opinion (Exhibit 1) found Mr. Smart's discharge unjustified and ordered him reinstated with back pay.
Mr. Smart was informed of the decision by his union on November 3, 1978.
On November 15, 1978, Mr. Smart returned to work for the Daniel Construction Co. (Daniel) on the Callaway nuclear plant construction project.
While Mr. Smart has thus been reinstated through his union grievance mechanism, his appeal of the Licensing Board's failure to decide whether the NRC has the authority to order remedial action when it finds retaliatory firing of a construction worker who has provided the NRC with safety-related information is not moot.
He and other workers who are watching the treatment of his case by the NRC need to know what protection he will have if he continues to cooperate with the NRC.
While he won one round, after a long layoff, with the help of his union, this remedy may not always be available to him and other workers.
78120t357 I
, The newly-enacted section 210 of the Energy Reorganization
- /
Act of 1974, which is to be enforced by the Department of Labor, has not yet been implemented and tested.
A worker asked to rely on this provision to get his job back might well expect a long delay while it is implemented and litigated.
On the other hand, he would have
.^re confidence that establishment of the NRC's authority to get his job back would have a deterrent effect on his being fired in the first place because of licensees' awareness of the broad scope of the NRC's regulatory power.
Because of his continuing need for knowing whether the NRC can protect him and the NRC Staff's position that it cannot, Mr. Smart's appeal is not moot.
This proceeding is the only avenue for Mr. Smart to get prompt review of the NRC Staff's misapprehension.
Even if the appeal Board disagrees with Mr. Smart's position on the NRC's remedial authority (or his position on the need to decide the issue in this proceeding), the NRC investigation of the cause of his firing must still be allowed to continue.
In undertaking that investigation, the NRC Staff had reasonable grounds to suspect that Daniel had acted to impair the NRC's access to information about construction defects at Callaway.
If
- /
President Carter signed the NRC FY 1979 Authorization Act into
- law, P.L.96-601, on November 6, 1978.
Section 10 of the Act, amending the Energy Reorganization Act of 1974, is included as Appendix A to William Smart's appeal brief of November 2, 1978.
S this were'so, the NRC needs to investigate, even if it could not do l
anything for " poor Mr. Smart," as such interference might well call I
Daniel's dedication to quality control into question and require more intensive investigation of the Callaway construction by the NRC.
The NRC's suspicion (or probable cause) is heightened by the l
arbitrator's decision which found that Mr. Smart was not fired for I
j good cause (Exhibit 1 at 13), but rather was fired on a pretext l
because of the general foreman's perception that Daniel wished to be l
rid of Mr. Smart.
(Id. at 11.)
Indeed, Daniel argued in the grievance proceeding that it should not be required to take Mr. Smart back because of his " disloyalty."
(Ijl. at 13-14. )
The arbitrator correctly noted that this legal argument " casts additional doubt upon the Company's motivation for the original discharge last March."
(Id. at 14.)
These findings, although not binding on the NRC, imply that it is not an academic question for Mr. Smart to ask this Appeal Board whether the NRC Staff is right about what it can do for Mr.
Smart if he risks Daniel's wrath again by communicating with the NRC.
In light of the events which have occurred since the submission of his appeal brief on November 2, 1978, Mr. Smart submits that neither his appeal nor that of Union Electric (as to the NRC's authority to investigate) is moot.
l Respectfully submitted, NTchael H.
Bancroft
/
Diane B.
Cohn f
Suite 700 2000 P Street, NW Washington, D.C.
20036 (202) 785-3704 l
November 17, 1978 Attorneys for William Smart I
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board In the Matter of
)
)
Construction P9rmit UNION ELECTRIC COMPANY
)
Nos. CPPR-139 (Callaway Plant, Units 1 and 2) )
CPPR-140 i
CERTIFICATE OF SERVICE I hereby certify that I have mailed a copy cf the foregoing notice to the following persons, this 17th day of November, 1978.
Alan S.
Rosenthal, Esq.
James P. Murray, Esq.
Chairman James Lieberman, Esq.
Atomic Safety and Licensing Office of Executive Legal Appeal Board Director Nuclear Regulatory Commission Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Michael C.
Farrar, Esq.
Wm. Bradford Reynolds, Esq.
Atomic Safety and Licensing Gerald Charnoff, Esq.
Appeal Board Shaw, Pittman, Potts & Trowbridge Nuclear Regulatory Commission 1800 M Street, NW Washington, D.C.
20555 Washington, D.C.
20036 Richard S.
Salzman, Esq.
Fulton City Library Atomic Scfety and Licensing 709 Market Street Appeal Board Fulton, Missouri 62251 Nuclear Re;ulatory Commission Washington, D.C.
20555 Olin Library of Washington University Jonn F.
Wolf, Esq.
Skinker and Lindell Boulevards Chairman St. Louis, Missouri 63103 Atomic Safety & Licensing Board Nuclear Regulatory Commission Docketing and Service Section Washington, D.C.
20555 Office of the Secretary Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C.
20555 Appeal Board Panel Nuclear Regulatory Commission Washington, D.C.
20555 Michael H.
Bancroft p
additional copy by Suite 7 NRC interoffice mail p S reet, NW hand-delivered Washington, D.C.
20036 (202) 785-3704 Attorney for William Smart
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- In the Matter of the Arbitration bei een 4
- t Daniel Construction Company,
' U,b Callaway Project, A Divinion of
,D Daniel International Corporat-lon, 4
Employer p7gg g3gg gg, jngjijin3
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International Association of y% k Bridge, Structural, Ornamental Ironworkers, Machinery Movers I, _,
and Riggers, Local Union No. 396, Union i
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- r Appearances q
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For the Compiiny, 4
- 11. J. Starr, Project Manager
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L. Lloyd Laughlin, Attorney G. Daniel Ellney, Attorney For the Un.fon i
Barry J. Levine, Attorney Joseph J. Ilunt, Lucinenn Reprecentative D
William Smart, Grievant I
AnnITRATOR'S r"itl10:15 A:in
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This arbitration arisca under the collectixe an e canen t between the y
Company and the Union (and several other unionn) eut ered into Sc ptember 30, 1975 for the durat. ion of the construction of t he na 4a Electric C g ure's Callaway County Nuclear Units. 1 ou
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In accordance uith that ar,reemenc, the ; i t t la 1 e r i c.1 t h e n d >
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n to :1 arbitrator through the Feh r.il llediation and Cu j
agreement, the hearing ina held in Jeffer:<in Cit' M
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.p, i,h September 22, 19'18.
The partier, appeared a~. cet forth Hm p r<
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witnesses and documentary evidence and cro:+ examined the other's it:
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.g{ pq The arbitrator tape - recorded the pr' :eeding and, on the requent of the m:.m -
' Company, provided it uith a copy.
I t w:m agrent t hat the p.ir t i on umid l'il e
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, bricfa postmarked no later than iaturday, October 14 any t. hey were recc h nl s,
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.by(the arbitrator on October 16 and 17, thus cloning t.be hearing.
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Re Arbitrability Q
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At'the outset of the hearing, the Ct.v -, contested the arbitrability A,
for arbitration.
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. of the. grievance on the groundo that the Union's request n
came too late.
The Union argues 'that the Cempany'n objection comes too late becaur J[.,Gp'
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'it was never raised' prior to the arbitration.
While both siden vigorously 9
- pursued.this argument, I find it unnecennary to resolve beenuno another r.
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.,.e clement in the case disposen of the issue of arbitrabliity.
3 Tin The discharge occurred on March 21, 1978.
Art icle Vli of t he Projet 21-m Agreement provides, in pertinent part, after netting out the neverat utern
_..T' from 1 to 5:
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"Sec.2 In the event.the dispute is not resolved by the proceduren provided above a;(W uithin tuenty (20) days aEter the filin';
'y of the written grievance, either party may,
. s4 within the follouing ten (10) days, serve T<@
upon the other written notice requesting that the dispute be reco1vc! by arbitration."
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"Sec. 6 Any grievance not filed in uriting
$O vith the Employer uithin ten (10) daya irom the day of the occurrence on uh tch t he
.j9 *h grievance in based shall be forever barred."
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.YV Initially the Union took the position that it fo rnally grieve
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.@i metter only in May.co that it met the Section 2 time limits.
Houever, then Ql[ld I !.nqui ad about *be impar'. of Section 6, uhich requires filing of a artevance s
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within'10 days of its occurrence, it asserted that the grievanen van
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4 p QM' titualy.. filed by the Union'a tiarch 22, 1973 Int r et to Mr. T. C Smit h of i's n
Agent.
Th.s t let t er
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Personnel. f rom Joseph J. Ilunt, Jr., the Union'n.nunine:
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states in part:
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intend to invoke the-grievance procedure
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the termination of our member, Uillian Smart, VO <
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However, the Union's request for arbitratten iTaint u*.a t.:o..
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S, 77,..Q dated May 12, 1978.
7 O;N The Company vigorously contends that. thin filing far exceede the time e
fy in Section 2.
thider Sec t. ion 2, M
limits specified by the Project Agreement in filed, there are 20 days within which the grics
.once a timely grievance M
i ance procedure operates.
If by the expiration of th.t r PO dayn, the d l oput a
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(10) day:
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remains unrosolved, cither party "may, within the foU oulnr - ten s
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- by arbitration". This rer.r.s that si a pr:- s c.
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M do so within these time limits.
The Union' a uritt en request for arbitratien a.'r 0-4> [% -
clearly falls outside the formally specified time li:rtts.
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Houover, as so of ten in the cane, management and udon practice d.' parts w,
C., nl cubstantially from the formalitten of the agreement The ProJ'ce t Pernanael
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Director, who handled this and other craft grievences under this Projcet 1
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6 tesilfied uithout contradiction that the practice vent an fo11cm "g'iQ Agreement,
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As soon as the Company received any notificatica et f; O jQ [.s for discharne cases.
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Union dissatisf action with a disciplinary action, he (the Perr.ennd
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no event later than 10 days after the disputed occurrence t'.n bandled
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~ n Section 1 of Article VTT.
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The several steps are set out a
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of the interp.et at ion or app t ic.it imi of Ihin A :ci!
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c::clusive of quost loon 01. jttrl:Alet ion on vorh, t he
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folloulog pra w :en nball be pornued :m Iho e. e I.e. I v -
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" Step 1.
The St eward cinll meet uith the foreman involved.
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" Step 2.
If the griev.,nce is not settled in
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Step 1, the steuaru and the foreman chall W
meet with the area cuperintendent.
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" Step 3.
If the grievance is not nettled in
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Stop 3, the Ducincan neprecentative of the
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Union shall neet uith the general superintendent.
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" Step 4.
If the grievance is not cettled la
[ 'l Step 3, the Thisinenc IWpresentative of the 1f Union shall meet ulth the general anperintadent G'
or the project nanager.
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" Step S.
If t he griev.ince is not. net.tled in Et op 4, an International ReplJesentative shall neer U! t.b representative of the l'.nplover's Corperate L:4.m Relations Group, upon prenpt request et eitho. p,rry, p.
),
In this case, IIr. Hunt called him and uantetl to get together 4eur thi-
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t grievance on March 23.
But, the Personnel Director was unable to de ao.
Mr. Hun" h
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- t' expressed concern over meeting the 10 day time linit imposed, not by the forrni 7ff Project Agreement, but by the parties' (including other craft union partica) practice. The Personnel Director assured Mr. Hunt that he would vaive cny time g
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p' MC beyond the ten days by adding whatever delay una caused by his inability to meet.
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In fact, they met uithin the ten days. Houever, this episode in significane t.o
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frc, itn formal tino requirem mto.
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.v; preccribed limits were waived.
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the Personnel Director testified, the Union had 10 days within t;hich
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' 3#' i to request arbitration starting after the Director of Labor Relationa denied At the grievance at the'Sth Step. The Union made that request on May 12, uhen it
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f, "E e, received-the Company's oral decision denying the grievance.
.The Company's formal notification of that action was in its letter of s "'
1.
.I May 1A, the completion of the. 5th Step. Hence, the demand for arbitration i
k was timely and the dispute is arbitrabic, m
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The Issues
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The solo questions before the arbitrator are:
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i (1) Was the Grievant, William Smart, discharged l
by the Company for disobeying a foreman's I
order?
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If he was, was termination proper?
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If he was not, what in the appropriate renedy?
(3)
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' ~ ~W.m Evidence., Findine,a and Dincunnion I
?r The Grievant, Mr. William Smart, had worked in various capacities -
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Concral Foreman, Foretaan and Journeyman -- in the Econworkers craf t at the v.C ' '
, 7 p-W M' construction of the Callaway Generating Plant, a ut clear at, bcIng con-
- jn structed for the Union Electric Company. The discharge in dispute occur 1;ed
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2 j g.y on March 21, 1978 based upon events of the prior day.
This account focucon i
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upon the events of those two days; carlier events will be discussed later
", R for t. heir possibic utility in explaining..:tions and decisions that occurred g'
on March 20 and 21, l!)18.
-[ 4 On March 20, the Grievant worked as a Journeyman Ironvorher in g"'
rb the dLrection of Foreman David Smanhy who was n.3/ '
'the Pump Houne.under b
. Ar{',.,
Q directing a gang of journeymen Ironworkert. laying rod:, for reenforee d i f.
The Pump House is a large building and the rod layfua and
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concrete.
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- v hh-tying was being done about 30 feet bciou ground level in a hole about 2nd w
4, feet by 200 feet.
At the titne in qucation, about 4 P.M., Mr. Naay ;tw.I several feet above where the gang van working A General Foreman directs coveral Forcmen, who, in turn direct th.
Mr. Charles Hathcock, was the General Forenan directing Mr. D.v uhy 'n gangs.
gang ( among others).
Ilr.llathcock and lie. Smachy teati[Ied that thc. P
>'d Foreman, talking acroca a considerable distance ol' thout 4 0 f ee t i run 10 i> ::t above, told Mr. 5nashy to have concone on his gang, utraLchten a bent rod.
Mr. Smashy testified that he called Mr. Smart by namo, that Mr. Suart otcod up f rom the work he was doing, tying roda, and Jcohed at him. 11a., aid th-t Mr. Undervood, a " permit man" (not an Ironuotkur in the local uhone r:c,ci-
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doing the job), uaa vorhing next to Mr. Smart and alao clond up.
Iir. Oc shy c.-id that he told Mr. Smart, from a distance of about 10 to 20 feet, to :trc'.hton the rod and indicated which one, but that Mr. gmart "r. airkcd",
that he LhiO I
Mr. Smart sht ugged his shouldera, shook hin head once from aide to side and 1
went back to the work of tying todo.
(Mr. llathcoch had intt t he Pur.p huu o by this time, apparently.)
11r. Smashy did not rupeat the order.
'i h e t a ceu tn also testified that a Lahorer Foreman, Mr. Mellor, nLanding ucarby said some-thing lika, "lle's not going to do it".
Mr. Smauhy told tuo other Ironvorkern (Hennich and Simmona) to straighten the rod and they did ca.
In addition to the gang of Ironvorherc, Carpentera and Lc.boren, m
at work in the Pump llouac, but, Mr. llathcock and Mr. Smauhy tectified that na machinery was going and that it vaa " dead quiet".
Ao t he Company brief d n te ;
and I observed, Mr. Smachy speaks very quietly, tutunually co.
Manethet Mr. Smashy " assumed" that lle. Smart heard him and that the alleged head :h:c F u indicated a purposeful refusal.
(For the reasona noted below, I do not fully V
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credit Mr. Smashy's testimony.)
tie. Smashy did not tcL1 anyone of the incident
.thgt evening (quitting time was 4:30 P.rt.) although he testified that he s,jjr ;
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regarded the incident as a challenbc to his authority of a kind which could 9;
J/;pi not be permitted.
If one such successful challenge takes place, he cald, hla M.w;;
r A.h authority as Foreman would be undermined.
'llowever, there was no testimony L
4 C;I that any Ironworker observed the incident.
A Laborer Foreman, Mr. Mellor, re-portedly observed the exchange but later, accorEling to the Asuistant Project
. Manager, said he did not want to be involved in any way,
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'lb After the starting time the next day, Mr. Smashy told Mr. Itathcock that
" Bill Smart refused to straighten the rod".
(lle did not on this occasion tell Mr. Hathcock that a short. time earlier !!r. Smart had allet,cdly been insubordi-w.
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nate; nor did he cell anyone else.
That supposed incident could not have
. influenced Mr. llathcock's decision to discharge Ifr. Smart.)
Mr. Ilathcock asked him if he would be willing to sign papera discharnLug Mr. Smart.
Mr. Saashy e
indicated'that he would and later did so when Mr.'!!athcock (not be) decided to dtn-
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.w, charge Mr. Smart.
Soon after the Smanhy-llaLhcock couvernation, they tooh
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!y, Mr. Smart from the pump lionse and went with him to llohert Crosa, the Ironworker 4
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Steward.
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When the alleged incident was recounted to Mr. Cross in Mr. Smatt'n
,y presence, the latter said that he had heard no such order.
Mr. Smashy ashed
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Mr. Smart if he was hard of hearing.
tir. Smart caid, "That's none of yau':
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7 goddam business".
I regard IIr. Smashy's question as a bit schoolmarnich :nd g7, n
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rhetorical, if not sarcastic.
Mr. Smart's sharp reply was, in such a cetsinn, a
nild stuff.
(In an office, it might be anot.her matter.)
Moreover, in tha
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ry construction traf ts, journeymen and foremen frequently change roles.
- Indeed, jhh w"J;s.
In the.paut, Mr. Saanhy had played Journeyman to Mr. Smirt aa Foreman.
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persona.l [orlital' do[ orc 11CC }31stys 110 par t 'Ill lh0GC ('O l a t [o tlHh i pH.
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b the Journeyman must perform his job as the Foreman ' directs and may not
.undercine the Foreman's authority.
But, 'in this setting, Mr. Smar t's responce
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'does not convey an insubordinate attitude; it exprcones no more than irrltation
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And tir. Smashy must l
94 yi not'have taken offense because, after Mr. Smart asserted that he had not.hcard q
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. the ordei described, Mr. Smashy asserted that he was villing to take Mr. Smar t
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back oa his gang. This willingness suggests that lit. Smashy either credi.to,d the.
3 good. faith of Mr. Smart's denial or, possibly had some doubt whether Hr. Smart 1.ad l
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heard him. That willingness certainly is inconaiutent with the view that y
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.Mr. Scart had been insubordinate, because Mr. Smashy was quite firu t at a suc-4 4
cessful insubordination would be f atal to nis authority.
It alco is inconsintent I,
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with the alleged earlier insubordination, the alleged " smirk" and the one negative W
wag of the head he attributed to Mr. Smart.
Indeed, as I heard those tcatimonial j.
details, they immediately struck me as embellishments desit;ned to strcucthca 4
a questionable story.
,e N. ' 'E The record doco not affirmatively establiuh that Mr. Smart heard the order, a
,i if it was given.
I find it. unbelievable that it uas " dead quiet" in a work place a
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- q y Wi where 5-or 6 Ironworkers are tying rods, and a gang of Laborcra and a gang of
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. Carpenters all arc doing their thing.
Although Mr. Hathcock and Mr. Smashy m
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testified that the compressor and other machinca ucre not operating 1
N (although they of ten were operating in the Pump llouse), I find that the record L 'a does not establish that Mr. Hathcock effectually comaunicated his ordce across q
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a distance of 40 f eet and-a height diff erential of about 10 f eet or that the g:gp,
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softspoken Mr. Smashy gave a direct order to Mr. Smart tha t r.f f ectively comann i-y-
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.cated itself to his hearing and consciouuness.
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s Mor does conscious, rurposeful dischedience of Mr. Smachy'n alleged order gij yly 4
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'mako ncns. in view or nr. smari 'u ot h. r und inented conduc t t ha t-day.
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in the proceeding, said that at the time Mr.' Smart, who testified laat
'the alleged order and insubordination, he cas in fact directing the crcu, j,l I
of
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fix up the roda no that they lay properly.cpaced
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to at Mr.' Smashy's request, C,
Mr. Smart
, 3-them straightened away,
. 7 and aligned af ter Mr. Smashy could not get Mr. Smashy confirmed the incident but said that it
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undertook that task.
I find it unbelievabic that Mr. Smart uould
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had odeurred earlier in the day.
afternoon and be so industrious, obliging aud workmanlike car'ly in the urcafter.
insubordinately refuse a simpic, direct order coon
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man" no longer employed It is true that tir. James Underwood, a " poi n i Smart's name at about the testified that Mr. Smachy called Mr.
on this project, t
d up time of the alleged order and that he (Underwood) and Smart stra.i ;htene L'han I ham:d from tying rods and looked at Mr. Smashy, who then said nothin:;.
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of it.
It appeared to r2 this testimony, I did not believe the last part n
that Ifr. Undcraced was
. (even before I heard Mr. Smart's dif f ering version) f the tolo, but.he was not convinr ing in trying to be hcipful to Ifr. Smart; J
Croau, lir. Underwood denled nur hoout ed;;o 3:
At first, in the discussion ulth Mr.
Mr. Underwood heard come of the story during the dia:uualon of the incident.
Just what he concocted and when w
with Mr. Croan and Mr. llathcock on !! arch 21.
gy, Unfortunately, it is not uncanunon W
and uhat was true, I could act figure out.
',. 8 Houever, it oLLen for fellow employees to try to provide obligiur, testimony.
g Mr. Undencoed's partial suhntantiati.on of 4
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does not f 4 t the circumstances.
Mr. Smashy's version (as ucil as his partini contradiction) did not pernuada ca.
candid and not fachinned foc the NI Mr. Smart's testimony struck me an direct, s
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eccasion.
I think it mout likely that he uaa involved in the reali:;nin>; L a r.k 3.l f.
But even if he were tying lodu, it
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he heard and refused a direct order (uhich m.
appeared to me that hiu denial that p,
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V H I am not at all sure was given) was candid.
Mr. Smart in a bright, quick and
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His singic mindedness fito his description that uhen 1
strong-minded person.
he;is i=mersed in an activity, he becomes oblivious to what in happening y ;v fift if the order were.given (and I'm somcwhat dubicus
,; s d t around him.
So that,
.about that), it makes sense that it might not have registered.
Especially
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given Mr. Smashy's quiet nanner, it would very likely not penetrate Mr. Scart's
~ )e consciousnesa when he was engrossed in a tank.
It taken an actually
,pr communicated order, one apprehended by the employee, before insubordination
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The record does not af firmatively establish, an it munt to
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justify a dischsrge for insubordination, that such an order was in fact giveu s
or effectively communicated.
Mr. Smachy's testimony alonc doca not establiah 7
the requisite showing, and !!r. Smart's testimony canta cerious doubt upon it.
Nor do I find confirmation in IIr. Ite11or's statement.
Although Mr. Stanby,
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Mr. Cross and Mr. Sykora cach reported Mr. McIlor's assertion t. hat Mr. liellor s.
I, said,'"He's not going to do it" (or some auch thing), it docan't confirm that l
Mr. Mellor did no candidly nor that he would tactify that the circunctances indicated that Mr. Smart probably heard and comprehended an order.
Laching an beatd and unw, 1 cannot lLe 1 opportunity to.cxplore what Mr..Heilor would aay he attach any probative weight to the cubntance of the report of what he said to others.
even if the record did establish an order communicated and actually A
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- But, defied (about which I entertain some doubt), Mr. Unthcock, the General Us Foreman who decided upon Mr. Smart's dincharge, c1carly did not make t he lie decision to discharge Mr. Smart because of that alleged innubordination.
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testified that he reached that conclusion immediately after talking to Mr. Sraohy
'W and before the' conference.ufth Mr. Crosn.
Early in hin testimony, the General g.
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Foreman also asserted that this decinion was infJucoced by tir. Smart'n au egedly W
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inadequate performance a few wecks earlier when ttr. Smart van a Foreman.
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that it becama unbelic 'bic f g#
that story came in so inany versions by the uitnens, g-p ((
and made it appear that the witness was casting about to give greater substance
'to his decision to fire Mr. Smart for insubordanation.
As that version began to unravel, it emerged that soon after Mr. Smarc was assigned as a Forcann k
under Mr. Hathcock's jurisdiction, the latter observed a yellow truch driven by i
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the project's Assistant General Superintendent repeatedly circlin ; the arca t i.
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I whero Mr. Smart vorhed.
In !!r. Hathcock's opinion, that activity could cuty
.have the purpose of keeping Mr. Smart un er survelliance, a surveillance d
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f unusual for its intensity.
In addition, tir. Ilatheock was instructed not to l
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i allow Mr. Smart to work in several areas, a situation Mr. Unthcock found r
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hampering to the performance of his job as a General Foreman.
So, h'c testified y
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that.he deduced that Mr. Smart would have to " Loc the line pretty close", that y
Mr. Staart had to be " extra careful" and was in a "special position" because of
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the allegations Mr. Smart taade to the !!aclear Regulatory Commission (althour;h ho a.
also testified that Mr. Smith, the Company's Proj ect Personnel Director, told t
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him to treat Mr. Smart the same as anyone else). lie testified that no cue "c/cr e
came right out" and told him to fire Mr. Snart, but quite clearly that in what the sum of the Company's special attention to and restrictions upon Mr. Smart m.
g, added up to for Mr. Hathcock. The probabLlity that Mr. llathcoch decided to use
- ;p the incident as an c: cuse is reenforced by Mr. Rathcock's ref erence to Coupany pressure on him about Mr. Smart at the conference with Mr. Cross.
So that uhen 3*.J
m the situation arose on March 21,.he agreed, he was j unt as happy to get rid of j
p the headache that Mr. Smart represented and gave the Comp tay the acciaion ha thought.it wanted.
Also, the record casts some doubt upon the Company assertion that discharge without some warning would be the normal treatment of a n:>n-6, lp flagrant f ailure of a Journeyman to follow a Foreman'n order. The Union establinhed that several neparations for Insubordin.uion werc in cottunion
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p5 with the' foremen involved to enable the employees to collect.their pay 4
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k.I' shows, a verbal warning would be the appropriate sanction for a non-cerioun to the Foreman'a failure to follou an order, with the seriousneno left discretica.
k it Mr. Smart also alleged that,at the intervieu uith 11r. Crosa, it uaa t.ha t agreed by Mr. Smashy and tir. llathcock to take tir. Um: art back but
<; aid that he vanld preEe6: ta Mr. Hathcock decided to fire hin when tie. Snart for incubordination, work elsewhere as a journeyman and no he uas fired, not but for his desire to transfer. However, it appears to me that, while f[r. Smachy Smart back on his gang, clearly expressed his willingness to take lir.
did no, Mr. Ilathcock (as he himself asacrted) never did more than keep silent, actively agree, and did not depart f r ont hi:, first decision to discharge IL. Sc.c t.
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Af ter the conf erence with tit. Croon, tir. Wallace L. Sykot a, Assistant P roj e c t IIanager, was informed of the General Foreman'a decici.on to dicehargo 11r. Smart f or alleged refunal to follow tir. Smanhy'a order, tir. Svkora testifa.ed th w h-3 shoa th' took apacial paina in inquiring whether adequate ev t.hmce exiated to i
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refusal (although he did not talk with Mr. Smart) becance he waa avarc that that 1
action would be publicized and subject the Company to pouslble c riticica if seemingly unjustified.
When he inquired uhether Mr. Smart had heard the order,
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it was I!r Hathcock who assured hiu that he had.
mit, Mr. Ilath'coch uan not U" vino present and at this juncture vould be ttying to justify hia decision.
I cpoke to Mr. Smashy who told bia, as he had test.1fied, that he had acuer M r
Hr. Smart heard him.
liu t, it is not at all clent that tir. Sykora vaa told LL.t
!!r. Smashy was willing to take Mr. Smart back on hln ip ng; uhfle the evi*
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in inconclusive, it seemo more likely that Mr. Sykora uns not told of th's.
r that he had told If r. Su nhy that The Laborer Foreman reportedly told Mr. Sykora n
Mt. Smat-t WDu not }',o l u p, t o d o uha t ne had been told to do, but that won t ho t
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(T!r. Cross had, withou t doubt, told IIr. Ifellor that J.
r o.h tir. Start inight sue the Company, the Union and IIr. tiellor, the Laborer.
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Mr. 5 art testified that !!ellor, the catae day, apologized to him and told him o.
that he was just trylug to support the Foreman.
As noted, I cannot attach much weight to the reporto of what the Laborcr Foreman said one way or another.
After this inquiry, Mr. Sykora ratified Ifr. Ha t hcock's decisiou to d.i a--
charge Mr. Smart.
Nothing that Mr. Sykora said or did on 11 arch 21 indicate.,
an itaproper motivation on his part or in his actions on behalf of the Company.
7 But Mr. Hathcock made the basic decision on behalt? of the company to discharge lir. Smart and that decision was not based upon " good cause".
It is hard for th' Cor::pany's decision to rise above this polluted source even though there it, no 6.-
evidence that the General Foreman advi.ned Mr. Sykora of the real reacoan for his decision.
Higher. Levels of superviuion ordinarily do not d Laoun the dccisiona of supervisors unless they have affirmative reasona lor doing uo.
In thin s i.t ua t io n, Mr. Sykora relied on the General Foreman's vernion of what occurred.
Thit vers ton necessarily was shaped to juntity the decision but did not discione his actual notivation.
The General Forc man is the agent of the Company; his m.,tiva-tion for the dischar;;e is attributable to it.
Hence, I conclude that the Ce.2pany did n,at suut.ain its burden of shouint; that it discharged Mr. Smart for ref usal to f ollou a Forman's order.
Remed2 1
In its bricf, t.he Company urged that should the discharge be f oum' p.tt to have been made for good cance, back pay but not reinatatement wou]d bc <. b c l
'n propor remedy.
Et based thin nuggested course on the nround of the GrJevant'.
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f.m!J manifested in the'"numeroua allegations
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~ Commission". _ And, while the Company states that "It ucicones conattuct ve -
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j_dk criticism,for employeca and recognizes the right of employees to addreau ther Al g
complaints. to Government agencies... this does not = provide coploycies. cbcolute 3
License to openly display their disloyalty to the Company...Such dialoyalty m
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flics.in the face of all: rational employer-employee relations".
.g the beacing and no f.he 1:sua uau
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This is no mere procedural pecadillo,
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Ok not offactively raised.
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parties 'did not addresa the issue :with their proof or in the Union'a brief.
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factual question uan at incoe, Indead, in the considerabic discusulons of what both company and buion agreed that it was whether the company had good cc.nne to d
discharge Mr. Smart because he did not obey a direct order of. this Torrman.
At the hearing, the Company took paina to avoid the innue of uhet.ber its dir,~
u charge was motivat.ed by tir. Smart's activit:les in relation to the !!uc.ier:r
-.n Regulatory Commlacion, The Company's argument about remedy and the inaue of what emp ime" r,r.t D. tt y f
!!ad the Comp:my militacca against reinatatement simply were not addreaned.
e the hearing.
It choao
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desired t.o. raine thoao insucu, it could have done so at y%
to..The ef fort conta t.co lato in tne brief.
not
,e Morcover, t.he request scemn tantamount to arguing that even if the Compcuy r
I, 7 the Arbitrator should Liud good Gh failed to catablich good cause for diceharge,
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cause in Mr. Smart's alleged disloyalty na discuaced and explored at f he henlag.
r Alternatively,it amounto to the proposition that if the Company violaLcd the it could une that au a sprinn-k agreement by improperly diocharging fir. Smart, rennon, a rennon ubich i t f.,.kp;, " Aboard for being quit of him for an entirely dif fercut pk had not! ' asserted as grounds for dischart;c and which it implicdly diuoened in j
the'tcutimony'of Mr.'Sykora.
Indeed, an noted, the requent casta add.itionai
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-For all of these reasons, I conclude that the usual. remedy for s
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unjustified discharge, reinstatement, should be ordered.
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The Grievance is granted on t.he ground that the Company did not AWARD:
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. establish that Mr. Smart had been discharged for being insubor c
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IIe i:, ordered by disobeying a di. rect order f rom hh t'oreman.
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reituit ated with back itiy and all incidenta ol' employment that
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m otherwise would have been his i rom March 21, 1978 onward.
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November 1, 1978 St. 1.0u18, Mi.couri 1
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