ML20205M079
| ML20205M079 | |
| Person / Time | |
|---|---|
| Site: | Browns Ferry  |
| Issue date: | 09/01/1995 |
| From: | Gray J NRC OFFICE OF ENFORCEMENT (OE) |
| To: | Ebneter S, Goldberg J, Russell W NRC (Affiliation Not Assigned), NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION II), NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| Shared Package | |
| ML20205M044 | List: |
| References | |
| FOIA-99-76 EA-95-190, NUDOCS 9904150090 | |
| Download: ML20205M079 (23) | |
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[3, *a UNITED STATES
[ :s g NUCLEAR REGULATORY COMMISSION t WASHINGTON, D.C. 206eMN101 4VW
- l September 1, 1995 I
MEMORANDUM T0: Stewart D. Ebneter, Regional Administrator '
Region 11 William T. Russell, Director 1 Office of Nuclear F.eactor Regulation l Jack R. Goldberg, Deputy Assistant General 4 Counsel for Enforcement Of ice of,th Ge ral Counsel FROM: iR ,'f epb yI irector Of ic of Enfoncement
SUBJECT:
DEPARTMENT OF LABOR CASE: HARRIS 0N V. STONE & WEBSTER (93-ERA-044)
The above captioned Department of Labor (DOL) case involves a complaint of discrimination filed by Douglas Harrison against Stone & Webster at TVA's Browns Ferry site. The Secretary of Labor found that discrimination occurred in this case; therefore, enforcement action may be appropriate. OE has assigned EA 95-190 to track this case.
Dick Rosano of my staff has discussed this case with members of your staff.
Pursuant to these discussions and OGC's indication as to when it can participate, we have arranged a telephone conference for September 21, 1995 at 3:00 pm to discuss the development of the enforcement action. At the time this teleconference was scheduled, each of your offices expressed no conflict.
Please ensure that someone from your staff will participate who can approve a course of action in this case. Should we fail to reach a consensus during the call, this matter will be referred to the DEDR for resolution.
Regional Staff may participate by calling my office at (301) 415-2741; those in headquarters may attend in Room 07-H-1. If there is a significant scheduling problem, please call me as soon as possible as an alternate time can be arranged.
i cc: J. Milhoan, DEDR -
R. Zimmerman, NRR G. Caputo, 01 B. Uryc, R:Il pI \[
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- e U.S. DEPARTMENT OF LABOR SECRETARY oF LABoM WASHINGTON, o.C.
DATE: August; 22, 1995 CASE NO. 93-ERA-44 Opu IN THE MATTER OF DOUGLAS HARRISON, / s
- F n JM COMPLAINANT, *
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STONE & WEBSTER ENGINEERING GROUP, RESPONDENT.
BEFORE: THE SECRETARY OF LABOR DECISION AND ORDER Before me for review is the Recommended Decision and Order (R. D. and 0.) issued on November 8, 1994, by the Administrative Law Judge (ALJ) in this case arising under section 211 (employee protection provision) of the Energy Reorgani?.ation Act, as amended (ERh), 42 U.S.C. S 5851 (1988 & SK< V 1993). The AIJ has recommended that the complaint be dismissed because Complainant failed to prove that his protected activity was the likely reason for his demotion and transfer to a less desirable work assignment. R. D. and O. at 30. I disagree.
FACTUAL BACKGROUND The AIJ bas thoroughly recounted the facts. R. D. and O. at 3-21. Very briefly, Respondent, Stone & Webster Engineering Group, contracted with the Tennessee Valley Authority (TVA) to perform construction and maintenance at the Browns Ferry Project, 3, .
,s . .
2 a three-unit nuclear facility located near Huntsville, Alabama.
Complainant, Douglas Harrison, was employed by Respondent at Browns Ferry from June 1992 until being laid off.due to a reduction-in-force in April 1993. Harrison began work as a journeyman ironworker. In August 1992, he was promoted to ironworker foreman, and in October 1992 he was promoted to lead foreman. Due to a reduction-in-force, he again became a foreman in November 1992, but was restored to lead foreman .in January 1993.
On February 1, 1993, Harrison conducted a weekly safety meeting with his two crews of two foremen and 13 or 14 ironworkers and another lead foreman and his crews of about the same size. Compare Complainant's Exhibit (CX) 1 with Joint Exhibit (JX) 4. Management representatives also attended, including Stephen Ehele, the chief construction supervisor, and Wayne Tennyson, a senior construction supervisor. In January 1993, Ehele had been transferred to the Unit 3 drywell where Harrison and his crews were working. The ironwork maintenance and modification work at Unit 3 entailed seismic upgrade of platform steel.
At the meeting, "the guys' big beef was firewatch," a safety concern that they had raised previously but that never had been resolved.I' Hearing Transcript (T.) 25. It similarly was not l' During the 30-minute " cool down" period following the conclusion of any welding, grinding, burning, or other " hot" work, the ironworkers involved were responsible for policing their work stations watching for fire. Under Respondent's (continued...)
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3 resolved during the safety meeting. The ironworkers were quite vocal in their complaint, and Ehele " caught most of the heat."
T. 26. As the meeting concluded, Harrison was approached by his foremen who implored him finally to settle the complaint.
Harrison thereafter met with personnel in TVA's firewatch training and fire protection departments, including TVA fire marshall Jerry Wallace, who advised him that the existing firewatch procedure violated Respondent's fire protection program. Respondent's Exhibits (RX) 1, 2. He then accompanied laborer lead foreman David Sparks to meet with Ehele and advised him that he was out of compliance. Ehele objected that they were
" eating him alive on man hours in that drywell" as it was. T.
- 39. Nothing was resolved,'and Harrison finally departed after advising Ehele that Wallace wanted to discuss the procedure with him.
Upon arriving at work on February 2, Harrison discovered that the complaint still had not been resolved and that Ehele had j not even contacted Wallace about it. Harrison then complained to the Nuclear Regulatory Commission (NRC). Later, after attending j
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a training class which concluded at about 2 p.m., Harrison was l'(... continued) scheduling, however, the ironworkers exited immediately upon concluding their hot work, and only two laborer " rovers" policed all work stations. Harrison testified: "I know that I have had my foremen working in enough different places on one elevation that two rovers coald not physically see within their scope of ;
view everywhere that was being worked." Hearing Transcript (T.) l
- 34. See T. 208-209, 267-273. l i
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4 informed by supervisor Tennyson that he had been demoted to foreman.
On February 3, Harrison elected to work as a journeyman ironworker rather than bump one of his own foremen as the apparent result of his safety activities.I' He went to work for Terry Keeton, whom he previously had supervised, organizing steel pieces near the turbine building. Later, with the permission of R. Eugene (Ross E.) Hannah, the remaining lead foreman, Harrison advised the crews that the firewatch complaint had not been addressed and that he had been demoted. The ironworkers then refused to work without proper fire protection. In response, Ehele called a meeting with management, the union, the laborers and the ironworkers, at which time the complaint was resolved by assigning firewatch duties exclusively to an increased number of laborers.
On February 4, Ehele ordered Harrison to an outside crew.2' Harrison was taken outside by Larry (Doc) Morrow, the ironworker job steward, who related Ehele's statement that Harrison "was to get out of there, that [he) was a troublemaker, and that [he) was like Moses standing at the Red Sea to the ironworkers in that drywell." T. 66 (Harrison).A' Harrison's exit from the drywell l'
Harrison contacted the NRC a second time to complain about his demotion which he attributed to the firewatch complaint.
I' Hannah's journal entry reflects that the decision to transfer Harrison outside was made on February 3. T. 535.
i' Morrow's testimony is consistent: "[Ehele) said [a)s long as Doug Harrison is in the drywell, the drywell ironworkers are (continued...)
5 occurred about 45 minutes after he had r' elated the events of the l
preceding four' days to Brownie Harrison, a TVA construction i supervisor.
DISCUSSIOE The ALJ found (1) that Harrison engaged in protected activity by making internal safety complaints and contacting the NRC and (2) that while Respondent was aware of the internal complaints, it had no knowledge that Harrison had complained to the NRC. R. D. and O. at 23-26. I agree. The record fully supports these findings.I' With regard to the ALJ's discussion of the applicable legal standard, R. D. and O. at 22 and n.3, I note that ERA section 211(a) (1) now expressly protects both internal and external safety complaints.
I disagree with the ALJ in his analysis of adverse action.
1 In deciding whether Respondent took adverse action in demoting Harrison, the ALJ states: " Complainant cannot show that (Respondent) discriminated against him by reducing him from his ,
I lead foreman position. Respondent offered him a foreman
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i'(... continued) going to look up to him, and he stands up there like Moses at the Red Sea, so go down there and get him out. And I said -- it took me by surprise. I said do you want a man? Do you want to swap a man? He said no. Go down there and get him out. If he's in the
-dry well, get him out." T. 331. Morrow testified that upon locating Harrison, he (Morrow) said: " Big Boy, what the hell ,
have you done? And (Harrison] looked up at me kind of funny. .I I said you're going to the outside. And I said what have you done.
You've done something. . . . What were you doing?" T. 329.
l' While some ironworkers also complained about the division of firewatch duties between ironworkers and laborers, and Respondent initially perceived the complaint as a labor dispute, Harrison's concern was safety.
6 position, which Complainant refused to take, opting, instead, to take a job in a crew, as a journeyman ironworker." R. D. and O.
at 26. To the contrary, in wrongfully deciding to demote an employee to a less responsible, lower-paying position, an employer discriminates against the employee with respect to his compensation, terms, conditions, or privileges of employment by depriving him of the more desirable position. The fact that the employee decides to quit, for example, instead of accept the demotion bears solely on the remedy. Unless constructively discharged in such a situation, an employee is not eligible for post-resignation damages and back pay or for reinstatement.
Nathaniel v. Westinghouse Hanford Company, Case No. 91-SWD-2, Sec. Dec., Feb. 1, 1995, slip op. at 20-21. Here, Harrison accepted a still lower-paying job than he was offered initially.
That he further damaged himself would not eliminate the discrimination. It would, however, limit his recovery.
The ALJ also found that Respondent demoted Harrison for a legitimate, nondiscriminatory reason. R. D. and O. at 26-27.
The question is close.
On January 27, 1993, James Butts, Respondent's field manager and Ehele's superior, reviewed the craft roster and directed Ehele to examine the ratio of journeymen ironworkers to foremen to determine whether supervision was top heavy. According to Butts, the ratio should be six to eight ironworkers for each foreman. T. 421-422, 474. Butts testified: "When I picked [the roster) up and looked at it specifically for the ironworkers,
7 there was 38 ironworkers and there was nine foremen on the roster, or there was nine people out of that 38 that was designated foremen. Just simple divisich tbld me that was only three people per foreman, so I questioned it." T. 421.
An examination of the roster for February 1, see JX 4, which was identical 1to that for the preceding week, shows a breakdown of 29 journeyman, seven foremen, and two lead foremen. Harrison supervised two crews, each consisting of a foreman and six to seven journeymen which is a ratio of four psaple for each foreman. More of a problem, however, lay with one of Hannah's foremen who supervised only two journeymen and with two employees (Thomas Willis and Willie Fulks) who were classified as foremen and who received foreman wages, but who supervised no employees.
In the final analysis, Butts decided to retain these employees at the foreman wage. No adjustment was made for the two-man crew.f' Harrison's demotion is consistent with Butts' purported " rule of thumb" of three to five crews for each lead foreman, but is inconsistent with Harrison's January 1993 promotion to supervise fewer than three crews. T. 474, 525-526. I also note that the total number of ironworkers did not decrease coincidentally with Harrison's demotion. T. 527.
s' By demoting Harrison to foreman and concomitantly demoting the previous foreman to journeyman, the supervisory ratio becomes five' journeymen for each foreman (30 journeymen and six foremen),
rather than the six to eight journeymen per foreman envisioned by Butts. This figure does not include Willis and Fulks who performed paperwork and were supervised directly by a senior construction supervisor. T. 544-545, 648. (
n-8 A further difficulty with Ehele's decision is its timing.I'
. Butts directed Ehele to review the roster on January 27, and Ehele responded with his decision "either that afternoon or the next morning." T. 423. Yet, Respondent waited six days, until February 2, to advise Harrison of his demotion, coinciding with the second day of his safety' activities. The timing then is somewhat irregular. Timing notwithstanding, without the additional evidence of Ehele's animus, I might have agreed with the ALJ's finding that Harrison was demoted solely because Respondent reassessed its need for foremen.
Ehele expressed animus against Harrison for his leadership role in the firewatch complaint when, on February 4, he referred to him as a " troublemaker" and as " Moses parting the Red Sea to the ironworkers in the drywell." He also exhibited animus by removing Harrison from the drywell and transferring him to an outside crew. Morrow's account shows that Ehele was agitated when he ordered Harrison outside. T. 307-308, 329, 331. See n.4, supra. In retrospect, the tenor of Ehele's response to Harrison concerning the February 1 confrontation suggests that animus was also present at that time. Ehele was not then l' The ALL is incorrect when he states that "no inference of discriminatory motive can be drawn from the fact that complainant's demotion closely followed his internal report of fire watch concerns." R. D. and O. at 28. Rather, a causal connection may be established by showing that the employer was aware of the protected activity and that adverse action followed closely thereafter. See Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989); Mitchell v. Baldrige, 759 F.2d 80, 86 and n.6 (D.C.
Cir. 1985); Burrus v. United Telephone Co. of Kansas, Inc., 683 F.2d 339, 343 (10th Cir.), cert. denied, 459 U.S. 1071 (1982).
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disposed to address the firewatch complaint, responding instead 1 that they were " eating him alive on man hours in that drywell" as it was, and he did not consult Wallace, TVA's fire marshall, as Harrison requested.
Additionally, the circumstances in which Harrison was demoted were circumspect. Respondent initially had perceived a supervisory imbalance, but discovered that two employees classified as foremen were not supervisors and thus not part of the equation. They were retained at the foreman wage, however.
Of the remaining options available to correct the perceived disparity, only Harrison was demoted. The demotion occurred immediately following his confrontation with Ehele and a mere month after he had been promoted to supervise the same number of crews that Respondent now deems too few. In fact, Harrison's demotion was the only step taken by Respondent to reorganize, which did not achieve the professed result. Rather, Butts' ratio required elimination of additional foremen. See n.6, supra. The demotion left Hannah, the remaining lead foreman, with widespread responsibilities which Harrison testified he would have felt uncomfortable assuming had he been offered the position. T. 121-122. Morrow also testified that Hannah was " overloaded" in comparison to the other crafts on the project. T. 314.
While a supervisory reorganization, even of such miniscule proportion, offered a legitimate reason for demoting Harrison, I find that Harrison's participation in the firewatch complaint also entered into the decision. Respondent was presented with an
i 10 opportunity to reorganize, and did so only as to Harrison, in part, because of the complaint. Accordingly, this case requires a dual motive analysis, where a respondent " bears the risk that
'the influence of legal and illegal motives cannot be separated . '"
. . . Mackoviak v. University Nuclear Sys., Inc.,
735 F.2d 1159, 1164 (9th Cir. 1984), quoting NLRB v.
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Transportation Management Corp., 462 U.S. 393, 403 (1983).
Respondent has not demonstrated on this record that it would have demoted Harrison, even if he had not engaged in protected activity. The record contains no evidence that Respondent acted similarly during other reorganizations, or that procedures in place for reorganizing its work force dictated this result.
Harrison thus prevails on this aspect of the complaint.
The ALJ also found that Ehele's decision to transfer Harrison to a less desirable position on the outside crew was not retaliatory. I disagree. In making this finding, the ALJ focused exclusively on Harrison's initial protected complaint, rather than considering the manner in which events escalated.
R. D. and O. at 30. Indeed, Harrison's communication to the crews, which resulted in their refusal to work without mandated fire protection, constituted separate protected activity.
In speaking to the crews on February 3, Harrison was in effect complaining that the firewatch complaint had not been addressed and that he had been demoted after having complained.
This communication, then, constituted an early version of Harrison's section 211(b) discrimination complaint, which is
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protected under section 211(a) (1) (D) as a proceeding commenced or about to be commenced under the ERA. 42 U.S.C. S 5851(a) (1) (D)
("[n]o employer may . . . discriminate against any employee . . .
I l
because the employee . . . commenced, caused to be commenced, or )
l is about to commence or cause to be commenced a proceeding under this chapter").
That the complaint was communicated to co-workers does not defeat rrotection. Section 211(a) (1) (D) prohibits discrimination because an employee has made a complaint. Cf. Marshall v.
Rhirlpool Corp., 593 F.2d 715, 724-725 (6th Cir. 1979), aff'd, 445 U.S. 1 (1980) (making a complaint is an implied initial step in commencing a formal proceeding and deserves protection under remedial safety and health legislation). It does not specify to whom the complaint must be made. In a case brought under the analogous employee protection provision of the Surface Transportation Assistance Act, the Secretary held protected a truck driver's safety complaint made to a co-worker over a citizens' band radio. Assistant Secretary for Occupational Safety and Health and Moravec v. HC & M Transportation, Inc.,
Case No. 90-STA-44, Sec. Rem. Dec., July 11, 1991.
Federal courts similarly have held under the occupational Safety and Health Act (OSH Act) that complaints to private i parties other than employers are protected. Donovan v. Diplomat Envelope Corp., 587 F. Supp. 1417, 1424 (E.D.N.Y. 1984), aff'd on other grounds, 760 F.2d 253 (2d Cir. 1985) (report of OSH Act violations to collective bargaining representative); Donovan v.
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9 12 R.D. Andersen Constr. Co., 552 F. Supp. 249, 252 (D. Kan., 1982)
(published interview by newspaper reporter concerning safety and health hazards at worksite); Dunlop v. Hanover Shoe Farms, 441 F.
Supp. 385 (M.D. Pa. 1976) (complaint to attorney about worksite conditions). The Diplosat court stated expressly that complaints to co-workers are protected:
l The purpose of the statute is to encourage employeer to
- come forward with complaints of health hazards so that l remedial action may be taken. In the ordinary course of events, an employee who notices a health hazard will begin by bringing the matter to the attention of those
! with whom he deals directly in his daily worklife such as the employer, supervisors, co-workers, or union officials. This is simple common sense. These persons are the ones most likely to be in a position to obtain information regarding the alleged hazard and to tske appropriate action.
587 F. Supp. at 1424.
A complaint to a co-worker may be the first step in the complaint process and thus specifically comes within the "about to commence or cause to be commenced" language of many employee protection provisions including the ERA. 42 U.S.C.
S 5851(a) (1) (D) . This rationale underlies Hanover Shoe Farms, 441 F. Supp. at 388 (complaint to attorney covered because retention of counsel to represent complainant constitutes first step in exercise of employee rights) and Andersen, 052 F. Supp, at 253 (comments to newspaper reporter protected because "[ijt is clear that proceedings could be instituted after an employee's communication with the media").
Discrimination itgainst Harrison because of his role in the crews' work refusal also is prohibited. The ERA accords
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1 employees the right to refuse "to engage in any practice made ]
1 un. lawful by (the Act)." 42 U.S.C. S 5851(a) (1) (B) . It is ]
uncontroverted that the crews refused to work without randated fire protection and that inadequate firewatch coverage exposed workers to the hazard that a fire would not readily be detected.
TVA's firewatch training and fire protection departments confirmed that the procedure being implemented violated the Fire Frotection Program Plan. JX 1 at 94. Indeed, a basis for the crews' complaint was that the procedure was contrary to that being taught in TVA's training sessions.
ERA section 211(a) provides,in relevant part:
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(1) No employer may . . . discriminate against any employee . . . because the employee (or any person acting pursuant to a request of the employee) . . . (B) refused to engage in any practice made unlawful by this
-Act . . . (D) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter . . . or a proceeding for the administration or enforcement of any requirement ;
imposed under this chapter . . . (E) testified or is about to testify in any such proceeding or . . . (F) assisted or participated . . . in any manner in such a proceeding . . . or in any other action to carry out >
the purposes of this chapter . . . . j 42 U.S.C. S 5851(a) (1) . There is no record evidence that i
Harrison requested the crews to refuse work, section d 211(a)(1)(B), only that upon leaving the meeting, "he heard someone say that the men should not go back to work until the !
I fire watch problem was straightened out." R. D. and O. at 10.
At the very least,.however, in communicating the status of the l firewatch complaint to the crews, Harrison " assisted or participated" in its resolution which came about because of the
14 crews' response to the communication. He thus would be protected under section '; (a) (1) (F) .
I agree with the ALJ, R. D. and O. at 28, that transfer to the outside crew adversely affected Harrison's terms, conditions or privileges of employment although no wage rate differential apparently was involved. Transfer to a less desirable job may .
I constitute ad~stse action. DeFord v, Secretary of Labor, 700 F.2d 2201, 283, 287 (6th Cir. 1983) (although rate of compensation not changed, transferred employee "found he was not welcome, that he was no longer a supervisor, and that his job was by no means secure"). See Jenkins v. U.S. Environmental Protection Agency, Case No. 92-CAA-6, Sec. Dec., May 18, 1994, slip op. at 14-16 (employee transferred from challenging, technical position that utilized her qualifications fully and required community interaction to isolated, administrative position). The instant record shows that crews working "outside
. . . the containment vessel around the reactor . . . did jobs like putting up chain link fences or fabbing stuff in the fab shop . . . .
" T. 126.I' Inside work, on the other hand, was more involved and received more " emphasis [and) attention."
1' Harrison initially worked " odd jobs" on the outside crew.
T. 71. He testified: "[T]here was an oil yard out by a well test shop that had some re-bar sticking up in it, and they wanted somebody to go out and weld them down. So I went out and welded that down." Id.
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15 T. 71-72. It was considered "on the critical path" in the development of the drywell.I' Finally, the dispatch with which Harrison was transferred following the protected activity, in conjunction with Ehele's expres; ion of animus in referring to Harrison as a " troublemaker" and " Moses parting the Red Sea," is sufficient to establish causation. Respondent's only explanation for transferring Harrison was that he requested it. Ehel- testified that on February 2 he was called away from a meeting to speak to Harrison and Morrow, as follows:
Q. Did you leave the meeting?
A. Yes, sir. Mr. Morrow motioned and asked if I would come out in the hallway, sir. . . .
Q. What did he ask you?
A. He asked if I have a problem with Mr. Harrison being assigned to another area other than a dry well.
Q. Was Mr. Harrison standing alongside of him at that tice?
A. Yes, sir, he was. i Q. And what was your response?
A. Under the cir.amstances I have no problem. !
> T. 627. Ehele does not recall anyone else leaving the meeting to ,
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speak to Harrison and Morrow. T. 626-627.
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l' " Critical path is a term used to describe work that is l directly in the path of things that have to be done to get that reactor back on line and producing power. It means it has to be done before the unit ca n be restarted." T. 70.
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l The ALJ ostensibly declined to find that this event occurred, only that it occurred "according to Mr. Ehele . . . .
l R. D. and O. at 30. Harrison testified that he neither requested a transfer from Ehele nor mentioned such a request to Morrow. T.
125. Morrow testified that he was never present outside a supervisors' meeting with Ehele and Harrison, and that Ehele never told him in Harrison's presence that he would grant a request to transfer Harrison outside. T. 307-308. As to the ALJ's statement that Harrison " admitted that he did not remember where his supervisors assigned him," R. D. and O. at 29, an examination of the remainder of his testimony reveals a very i specific account of who was supervising him and what he was doing in the interlude between demotion and transfer. T. 60-61, 64-65, 124-125, 128.
The ALJ also states that Harrison's ccmmunication to the crews occurred at an " unauthorized meeting" and that the transfer "if not made at [ Harrison's] request, was motivated by (his) unprotected activity in assembling the ironworkers which resulted in a work stoppage." R. D. and O. at 30. This characterization is less than accurate. Harrison spoke briefly to crews already assembled by Hannah, the remaining lead foreman, wi*.h Hannah's full permission.
Based on the testimony of Harrison and Morrow, I find that Harrison did not request to be transfarred. I am further persuaded in this regard by the ALJ's failure to credit Ehele's account of the February 2 hallway meeting. As discussed above,
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17 l liarrison's communication was protected activity, and Respondent's decision to transfer him because of that activity was unlawful.
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CONCLUSION I find that Complainant Douglas Harrison was demoted, in part, because of his participation in the firewatch complaint and that Respondent has failed to demonstrate that it would have demoted him even if he had not engaged in that protected activity. I also find that the subsequent transfer to the outside crew was retaliatory. Accordingly, Respondent Stone & ,
Webster Engineering Group is directed to compensate Complainant for the two dollar an hour differential betw'een lead foreman and foreman wages from February 2, 1993, until the April 14, 1993, layoff.D' Complainant is awarded costs and expenses, including attorney fees, reasonably incurred in bringir.g the complaint.
Complainant is granted a period of 20 days from the date of this order to submit any petition for costs and expenses. Respondent thereafter may respond to any petition within 40 days of the date of this order.
SO ORDERED.
_ . n%Af b.
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Secretiry'of Labor Washington, D.C.
l H' The extent to which the layoff may have been retaliatory was not at issue in this complaint.
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e e .
CERTIFICATE OF SERVICE Case Name: Douglas H'artison v. Stone & Webster Engineering Group Case No.: 93-ERA-44 Document: Decision and Order A copy of the above-referenced document was sent to the following persons on U 22 O .
/ _
CERTIFIED MAIL Jim Stansell, Esq.
1700 Wilson Dam Road Suite 3 Muscle Shoals, AL 35662
- Robert M. Rader, Esq.
Joan B. Tucker Fife, Esq.
Winston & Strawn 1440 L Street, N.W.
Washington, DC 20005-3502 Douglas Harrison Route 4, P.O. Box 387 Russellville, AL 35653 REGULAR MAIL Associate Solicitor for Fair Labor Standards U.S. Department of Labor Room N-2716 200 Constitution Avenue, N.W. I Washington, DC 20210 Maria Echaveste Administrator Wage and Hour Division Employment Standards Administration U.S. Department of Labor 200 Constitution Avenue, N.W.
Washington, DC. 20210
I <
a -
l-1 l 2 i
William H. Berger Deputy Solicitor
, U.S. Department of Labor l 1371 Peachtree Street, NE l Room 339 l Atlanta, GA 30367
- Kenneth R. Gilbert l Acting District Director l Wage and Hou~r Division l Berry Building, Suite 301 2015 Second Avenue North Birmingham, AL 35203 Director Office of Enforcement Nuclear Regulatory Commission Washington, DC 20555 Deputy Assistant General Counsel for Enforcement Office of the General Counsel Nuclear Regulatory Commission l Washington, DC 20555 l
NRC Enforcement Coordinator 101 Marietta Street, NW Suite 2900 Atlanta, GA 30323-0199 Hon. John M. Vittone Acting Chief Administrative Law Judge Office of Administrative Law Judges 800 K Street, N.W.
l Suite 400 l Washington, D, 20001-8002 I
Hon. Richard K. Malamphy l Administrative Law Judge l Office of Administrative Law Judges suite 300, Commerce Plaza l
603 Pilot House Drive Newport News, VA 23606 l
t
Y . ..
h September 5, 1995
- ACT SH M FOR DIS:REMINA" ION CASES COMPLAINANT [ COMP): Harrison, Douglas W.
ERA NO.: 93-ERA-044 LICENSEE / FACILITY: TVA Browns Ferry Stone & Webster Engineering Corporation NRC REGION: 2 DESCRIPTION 0F PROTECTED ACTIVITY:
firewatch, following reports to him by subordinatesComplained of inadequate cove DESCRIPTION OF ALLEGED DISCRIMINATION:
dollar reduction in pay" (see complaint, p. 2)." cut back to foreman . . . about a two DATE OF DISCRIMINATION:
complaint) ~2/2/937 (see reference to attending class in DATE OF COMPLAINT: March 30, &193
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DATE COMPLAINT RECEIVED BY DOL: May 17, 1993 DID COMPLAINANT ALSO REPORT DISC.R:II TOcc'ed NRC7: on complaint LICENSEE'S EXPLANATION OF ACTION:
DISCUSSION: }
knew I had been hung out to dry.DWH also said in his complaint that "[alfte will say anything for fear of retaliation."If another problem like this arises no one ACTIONS TAKEN TO MAKE COMPLAINANT WHOLE:
CULPABLE LICENSEE MANAGER (S) (CLM]:
cza Is srILL FIra LIcmNars AND IN FNAT CAPACIYI IF DNN)(INewDs NAME, FITLK AcrI0rs rAKEN AGAINST cIKt SEsTLEDs DATE BRttt.EDt BETTr.natart 00EDITICEst i DISTRICT DIRECsGR'8 DRCIBIONt June 16, 1993 - no discrimination
- your change in position from lead foreman to foreman result ed solely reorganisation of work crews and supervisors.* from a DOL ALJ DRCIRIGWt November Bo 1994 - no discrimination
- The Respondent's knowledge that complainant was making co mplaints to TVA TH15 DOCUME T CONTA!
\ IT RED ISl%AL INF BE RE ASED OU 1DE THE C w1T W Rovat T o! RECTOR, F ENFORCENE k I
. . ,o i
officials and to Stone & Webster supervision regarding these concerns of the ironworkers is sufficient to satisfy the complainant's crima facie case. . . .
On the other hando I find that the Employer did not have knowledge of complainant *s reporta co the NRC." (p. 26)
Complainant position argued (2/2/93) andthat (2)discrimination was (1) reduction from lead foreman transferring him to an outside crew on 2/4/93.
" Respondent offered him a foreman position, which complainant refused to take, opting, instead, to take a job in a crew, as a journeyman ironworker." (p. 26) I
- I find that neither complainant's reduction from the lead foreman job, nor his voluntary choice to accept a lesser job than the one offered to his can be k construed as discriminatory conduct by the Respondent." (p. 27) ;
- [T]he Complainant has shown that stone & Webster took adverse action against him, by transferring him to a work area outside of the drywell." (p. 28)
"The weight of the evidence proves that the roster review, which revealed an unacceptable ratio of ironworkers per foreman in the drywella was a logicinate, non-discriminatory reason to reduce complainant from his lead foreman position. . .
. The Respondent is not responsible for complainant's i choice to forego ironworker.* the foreman position and take a position as a journeyman (p. 30) 1 r^RzTART OF LABOR DECISION August 22a 1995 - discrimination DOL AZJ RsVISzD DECISION (If APPLICABLs)
ERC ACTIONS TAKREt DISC 0SSzD VITB OI18 cuILLIno sirscT tsTTsR tcsL) sa Trt zuroRcanswT ACTION IssosD (InctoDs zA no.): EA 95-190 1
CLOSROUT ACTION (OTBsR TRAN EMPORCzMsxT): l RanARzst TMAYCONTA!NPND
\THIS/ IT CAN OT BE RELEASED OUTSIDALTHEINFORR4fl NR /
wit E APPROVAL W W DIRECTOR, OFF E ENFORCEMENT
I*. .
I Mr. Harrison was a Lead Foreman working for SWEC at Browns Ferry.
He alleged that he was demoted on February 2-4, 1993, by the SWEC Chief Construction Supervisor to Foreman because he raised concerns about the adequacy of fire watch coverage. He filed a DOL complaint on March 30, 1993.
The DOL District Director reached a finding of no discrimination on June 16, 1993, and the DOL ALJ reached a finding of no discrimination on November 8, 1994. The basis for the conclusion was that the change in position from lead foreman to foreman was solely the result of a reorganization within SWEC.
On May 27, 1993, NRC/OI initiated an investigation. NRC/OI did not substantiate the allegation of discrimination. On May 17, 1995 Region II sent the results of the OI investigation.to TVA.
On August 22, 1995, the SOL reversed the ALJ decision, and reached a finding of discrimination.
Because the SOL reversed the ALJ, we held an enforcement conference on October 10, 1995; and issued a Severity Level II NOV with $80K CP to TVA, and a Severity Level II NOV with no CP to SWEC.
SWEC has undertaken to compensate Mr. Harrison despite appealing the SOL decision to the Circuit Court of Appeals.
.