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/ r WASHINGTON, D. C. 20S55 f, - Y Y n December 3, 1984 Docket Nos. 50-445/446 DO NOT J!SCLOSE MEMORANDUM FOR: Comanche Peak Technical Review Team FROM: Richard H. Wessman Comanche Peak Technical Review Team
SUBJECT:
FEEDBACK INTERVIEW 0F ALLEGER A-28 On Wednesday, November 14, 1984 Alleger A-28 was interviewed by telephone by R. Wessman, C. McCracken and W. Wells of the Comanche Peak Technical Review Team (TRT) staff. This interview was to provide' feedback from the TRT's investigation into technical concerns raised by this alleger during an interview with the Office of Investigation (01 Report No. 4-83-001). This feedback interview was transcribed and a copy of the transcript has been placed in the TRT files. During the interview C. McCracken and W. Wells provided the results of the TRT investigation into Coatings concerns AQ0-16 and AQ0-20 through AQO-25. The alleger was satisfied with the results of the TRT's investigation into his concerns. A-28 stated he had some additional material he believed was of potential interest to the TRT staff and mailed it to Mr. McCracken. The information provided did not raise any new allegations. During the arrangements for this telephone interview, alleger A-28 committed to provide Mr. Wessman's phone number to alleger A-29 (as A-29 has no phone and his address is unknown to the TRT staff). In accordance with Mr. Wessman's request A-28 was to invite A-29 to call (collect) to Mr. Wessman and arrange for his feedback interview. During the November 14 interview, A-28 stated that he passed this information to A-29 but he did not know if A-29 would call the staff, b Richard H. Wessman Comanche Peak Technical Review Team cc: E. Case D. Eisenhut J. Zudans
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~ kW 't 'l c December 3, 1984 ~~~ 7 Docket Nos. 50-445/446 MEMORANDUM FOR: Vincent S. Noonan, Project Director Comanche Peak Technical Review Team FROM: Richard H. Wessman Comanche Peak Technical Review Team
SUBJECT:
FEEDBACK INTERVIEW 0F ALLEGER A_28 On Wednesday, November 14, 1984 Alleger A-28 was interviewed by telephone by R. Wessman, C. McCracken and W. Wells of the Comanche Peak Technical Review Team (TRT) staff. This interview was to provide feedback from the TRT's investigation into technical concerns raised by this alleger during an interview with the Office of Investigation (0I Report No. 4-83-001). This feedback interview was transcribed and a copy of the transcript has been placed in the TRT files. During the interview C. McCracken and W. Wells provided the results of the TRT investigation into Coatings concerns AQO-16 and A00-20 through A00-25. The alleger was satisfied with the results of the TRT's investigation into hip concerns. A-28 stated he had some additional material he believed was of pctential interest to the TRT staff and mailed it to Mr. McCracken. The information provided did not raise any new allegations. During the arrangements for this telephone interview, alleger A-28 committed to provide Mr. Wessman's phone number to alleger A-29 (as A-29 has no phone and his address is unknown to the TRT staff). In accordance with Mr. Wessman's request A-28 was to invite A-29 to call (collect) to Mr. Wessman and arrange for his feedback interview. During the November 14 interview, A-28 stated that he passed this information to A-29 but he did not know if A-29 would call the staff. Richard H. Wessman Comanche Peak Technical Review Team cc: .l. Zudans-C. McCracken-Docket File 50-445/446- 'C
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U.S.,D:psrtment cf Labor office of Adminisuatic Law Judges ,. i
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111120th Street, N.W. Washington, D.C. 20036 7 i@! 7 paM A.b / / [4 Cb fob j In the Matter of ,o p i. WILLIAM A. DUNHA O Complainant Case No. 84 RA-1' d v. BROWN & ROOT, INC., Responde nt ((. ~ [.
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. ~.. MARY -L... SINDERSON, ESQ. - .: ~ ~.. ~ ~ _ _ ~. Sinderson,- Daf fin, Flores & Stool ~ ~ C University Bank Plaza .e- ~- 5615 Kirby Drive, Suite 710 C -. C '.J Hou'ston, Texas 77005 = ~ For the' Complainant ~ s..z ~ BRUCE L. DOWNEY, ESQ. Bishop, Libermari, Cook. Purcell & Reynolds 1200 Seventeen'5 Street, N.W. Washing ton, L.C. 20036 For the Respondent Before: ROBERT J. FELDMAN Administrative Law Judge RECOMMENDED DECISION AND ORDER This is a proceeding to impose sanctions, recover. damages, and for.other relief under Section 210, the Employee. Protection provir ions, of the Energy Reorganization Act (42 U.S.C'. il 5851) and the regulations promulgated thereunder (29 F. R.- Pa rt 24). 4 Folgg5_gg Ot
b ' i Statement of the Case His employment having been involuntarily terminated on 4 August 26', 1983, William A. Dunham, the Complainant, duly filed a complaint with the Department of Labor on September 23, 4 1983, pursuant to Section 210 alleging that Respondent Brown I & Root, Inc., his Employer, had wenn7 *ully d 4 =eharced him for complainina about harassment and int 4=4d=*4aa nf Quality control (OC) Inspectors in the coatings department at the ~ honstruction site or the Comanche Peak Steam Electric Station, Glen Rose, Texas. The relief sought by Complainant included reinstatement, back pay, reimbursement of expenses and legal fees, as well as punitive damages. Under date of October 18, 1983, the Area Director of the Wage and Hour Division, Employment Standards Administration, i l notified Respondent that af ter an investigation, it had been found that Complainant was a protected employee engaging in a-protected activity under the Act and that discrimination'wa's f_Z ja. factor in the ac'tions which enmp*4** his complaint; that cb-nlainant was scheduled for termination-be fore theafiWal ,,-[,7 .~, counselinc session at which ne was charggd wit 3_ ins uoordi-natlen; anc tnac na -m termluawww Decauas uw was vocaA in y his opposition to intimidction7 harassNent and threats made by management to Quality Control Inspectors. Rgspondent was I. notified to abate the violation and to provide 'the-following l relief: reinstatement, back pay, moving expenses, job hunting 1 $.4 expenses, legal expenses, compensatory damages, and purging of his personnel file of any reference to his termination. Thereaf ter, Respondent duly appealed by telegram to this Office requesting formal hearing pursuant to 29 C.F.R. S24.4. Following a pre-hearing conference and the. disposition of numerous motions, */ the case was fully heard on February 13th and 14th in Fort Worth 7 Texas. The record was closed upon the " ~ filing of the last post-hearing brief on April 6, 1984. A subsequent motion by Respondent to re-open the record for the introduction of newly discovered evidence was denied September 13, 1984. ~
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At the pre-hearing conference, the claim f r punitive ' damages was withdrawn. 2 Respondent's offer to ronsent' 'to an gor _aw=ed4ng haek s during un.mpT py-+ f7dq da " " pan==s_ h"n h orney's r (but wit dmis ' av / b ,/ i.<p
i' I a 3-By reason of requests from the parties for postponement of the hearing, express stipulations of counsel filed December 7,1981 and December 12, 1981, and the decision and order on pre-hearing motions dated January 10, 1984 here in~, 1, the time constraints of 42 U.S.C. S5851(b)(2)(A) and of 29 C.F.R. S524.5 and 24.6 have been waived. Findings of Fact l Complainant William A. Dunham was first employed by l Respondent Brown & Roo t, Inc. in April, 1979, at the South l Texas Nuclear project near Bay City, Texas. He worked there as a spray painter, coatings coordinator and in related capacities. In November,1981, he lef t his job. at Bay City and obtained employment with Respondent at the Comanche Peak 1 Steam Electric Station near Glen Rose, Texas, where he was , hired as a Quality Control Inspector in protective coatings. -~ j ;In. January,1983, he was promoted to Lead Inspector in that; ' ~ ~ !6i - division. l-l~~_. ~ ' ~_ C Respondent is the prime contractor for the constrpation { - of the nuclear power plant at Comanche Pcak of ath;1gh' Texas i Utilities Generating Company (TUGCO) is the managing owner ' and the Nuclear Regulatory Commissiones (NRC) app 1ttant for a license to operate the plant. The Quality Assup.ance (QA) l ' Organization there is divided into two groups, the-ASME and i the non-ASME, the coatings department being part of the latter group. Respondent's Site Quality Assurance Manager l (Gordon Purdy) directs the daily activities of the ASME group, but is also ultimately responsible for all personnel actions involving Respondent's employees in the Quality Assurance Organization, including those in the non-ASME group whose daily activities are directed by TUGCO and Ebasco Services, Inc. Thus Complainant was aspigned to wo,rk.under the direction of EBASCO's QA/QC Supervisor (C. Thomas Brandt), but any personnel actions or decisions af fectine his emoloyment status were in the hands or Purdy. In Januarv, 1983, as a result of st'atements made,by Complainant's immediate QC Supervisor in coatings (Harry Williams) and objections thereto voiced by other Quality Control Inspectors, Complainant rade a en pik 4 nt to the NRC charging harassment'and intimidation of inspectors by W i l ' 4 i= = - _ During succeeding months, however, W1111amg continued his ef forts to restrict the freedom of the. coatings QC Inspectors to point out quality deficiencies and to write 3 non-conformance reports. Complainant brought that matter to the attention of Purdy, resulting on or about June 14, 1983, in a meeting attended by the TUGCO Quality Assurance Manager (Ronald Tolson), Purdy, Brandt and Complainant., At that e -,ym.-.%_._.n-.. - - -, _ _,...-----#.w..,
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4 meeting Complainant reiterated his complaints about Williams harassing QC coatings Inspectors, and Brandt promised to investigate Complainant's concerns. During the following week or two, Brandt interviewed a number of insoectors _and came to the conclusion that Willia== uan heino eve rrun by the Craft, that the inspectors had 1 mat confidence in him an a supervisor ano did noe feel that he stood uo for their interests. Consequently, he arranged to bring in Evert Mouser to be trained to take over Williams's job as supervisor of the QC Coating s Inspectors. Ef fective July 10, 1983, Complainant was promoted from Level C Inspector to Level B at the request of Williams, authorized by Brandt and approved by Purdy. The. promotion was based on certifications and demonstrated proficiency. ~ In the latter eart of 7"1y.1983 Brandt was interviewed 3' by an NRC Investicatne w4*k *=epact to the complaint filed tne previous Janna *y concerning harassmenu and incimicanlon. m coa-inge I..:p;;; r: ky W ; nt:-- h investigator did nct.;.. ~~ - Identifv the innnec*me uba h=M filed the enm el a i n t.
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= g. ~ On August 18, 1983, EBASCO's QualityCEngineeridg Supervisor in the non-ASME group (M.G. Krksher) represented Tolson and I Brandt at a meeting involving Coatings QA/QC and CrTf t pe rsBnnel. At the conclusion of the meeting, in'; response to l Krisher's suggestion to discuss specific concerns Eslative to the Coating s progr'am, Complainant and several other inspectors complained to Krisher about the harassment and intimidation of inspectors. Krisher thereaf ter found no indications of any intimation, harassment, threats or other excessive pressure from Craf t on inspectors. On August 24, 1983, a meeting was held by two engineering consultants who had come on site to make themselves.available for discussion with inspectors of the technical changes being ~ made in the Coatings program. Questions.and comments having i been invited, Complainant participated actively in the discussion. His comments were openly critical in tone and content, and among other things, he reiterated his complaints about harassment and intimidation of inspectoys..Although Complainant's conduct was characterized by Krisher and some other witnesses for the Respondent as negative, disruptive and obnoxious, I am satisfied that it may be more fairly and [ accurately inferred from all of the evidence that Complainant ,, was pe rsistent, noisy and no doubt argumentative. Krisher J i and Mouser attended the meeting; neither Brandt nor Purdy i was present. i _,.,-____-._--.__.,__.-_m-__.m ,--,,__--,.,__,.__-_,---._-_.-_..--.--._,,_.-_.._.,.-m.
+ Immediately following the meeting, Krisher reported to Brandt that Complainant had created a problem and that something needed to be done about it. After Krisher had described Complainant's attitude and performance, Brandt spoke to one of the consultants who told him that the meeting had not been too ef fective and mentioned Complainant's demeanor. 1 on the following day, Brandt spoke to Tolson about the i problem and suggested that Complainant be counselled and be given three days off to think about'it. Tolson concurred and told Brandt to get in touch with Purdy about it. Later in the day Krisher, Mouser, Williams and Brandt' met with Purdy in Brandt's office. They discussed Complainant's co'nduct at the meeting and Purdy agreed with Brandt's suggestion to counsel him and suspend him for three days. 6e' following' no^rning, August 26, Tol' son advised hur.dy ~ ~; T and Krisher that to suspend, Complainant wpuld be inappfo due to the elapsed time since the August 24th meeting.' priat.e---- ~ He t' dire ~cted them to limit. disciplinary actioh to a ttonselling session. Purdy then asked Krisher to prepare a counselling ~ report and schedule the session for 4:30 that atternoon. - Krisher prepared a draf t counselling report, had it. typed, edited the draf t,.and had the final version typed on Respondent's Employee Counselling and Guidance Report form. He directed Mouser to bring Complainant to Purdy's of fice at 4:30, with express instructions to refrain from disclosing to Complainant the purpose of the conference. At the appointed time, Complainant and Mouser appeared at Purdy's office, joining Purdy,and Krisher.there. Purdy then handed the counselling report (Respondent's Exhibit-H) to Complainant and asked him to read it and comment. The report i stated that the reason for the conference was " Attitude". It i referred to several occasions when Complainant expressed a ~ l complete lack of confidence in the Costings QC program, the most recent of which was at the meeting of August 24th during i l the open information exchange between the consultants and the l inspectors, his " continued dominance of the meeting",being described as disruptive, counter-productive and unprofessional. The report concluded with a warning that such attitude and l l actions would not be tolerated and that further like demonstrations would result in disciplinary action.' i i l
,s i 1 l . After briefly scanning the document, Complainant uttered a vulgar', but impersonal, expletive and stated that he would not change, so they "might as well walk him to the gate." saying in words or substance that the subject of the counselling report was the real problem in t oatings department, and repeating hic ugger*4^, h_ urne um. ; pc.. .v rurdy. He was not asked to sign the document. Purdy got up and lef t the room, taking the report with him, and returned a few seconds later, telling Krisher and Mouser to take Complainant to his work area to collect his personal things and to meet him at the time office. Purdy went to the time office and stated he wanted to terminate the complainant as a result of which" the latter's' personnel file was pulled and an Assignment Termination form ( Respondent's Exhibit K) was filled out. Purdy completed and Ti signed the form., checking of f Complainant's performance i
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", Ins ubord i'Ha tion- " He added the followihg explanatiog_(_...TZ'. 7. Individual at the time of coun'selliny ~f5r a ttitude informed me to take him to.the-gate, -he wasn't changing - in a manner whiqhsI; consider insubordinate. ~ When Complainant arrived at the time office, he had to wait for his checks to be prepared and then was asked to sign the Termination form. Instead, in the space provided beneath the printed statement that "the reason checked above is the true reason for termination", he wrote the words "F-----g Lie." Having turned in his badge, Complainant thereupon left the site. ggt g of the six or seven counselling sessions conducted by b" dlbDC dy, five resulted in termination of 'the employees involved. 4-Early in September, 1983, Williams was transferred to UCAS~~ another site. ~ I Since Seotember 19, 1983, _ Complainant has been' employed l .as senior _coatino inspector _oy TBASCO at its South Texas Proiect near Bay City. Ris hourly wage is S2.90 less'than at Comanche Peak. =
l p/ fld h3. 4 U Under date of December 22. 19RMhe NRC served ugr} Q TUGCO a Notice of ' Violation and Proposed Imposition of Civil Penalty stating that their investigation revealed that a i TUGCO Quality Control Supervisor at Comanche Peak had intimidated Quality Control personnel working for him inspecting paint coa:ings in violation of the provisions of 10 C.F.R. Part 50, Appendix B, Criterion I. TUGCO was further advised of the proposed imposition of a civil penalty in the amount of S40,000.00 for the violation categorized as Severity Level III in accordance with NRC enforcement policy 10 C.F.R. Part 2, Appendix C. An appeal has been taken from both the violation and the penalty. The Issues
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_The issues pr.esented are not complex and,may be s'tates !. ;-.d, as follows:... c = ,I. Did Complainant engage in a pro $ected_petivity? II. Was.the protected activity a substantial ors motivating f actor in his discharge? g.w j III. Would Complainant have been discharged but for the protected activity? An ancillary issue of credib.lity was raised by Respondent's bnpeachment of Complainant's testimony by the introduction of evidence of his #al m"v cenvictinas. As a result, factual determinations have not been based solely upon Complainant's unsupported assertions. Credibility, however, is a relative concept, and theaaoutatinne n' ResDondent's prine'ibal witQsses, Brandt and Purdy, for en trutb *niness in rela tion to_dischargi6g'~~ .surtordinates is a matter of r*cerd. Cae AtchissnZv._ Brown 1I Root, Inc., 82-ERA-9 ( ALJ, December 3,1982, and Decision of the Secretary, June 10, 1983). _Under all circumstances, I find'that their self-ca 'ag ttstim ry i= pi= cad i n rf e ~ 7Ereme and_ is no more worthy of belief than~thatalf e _Compla ina n t. Consequently the issues herein have no6 been decloeo on the basis of credibility of witnesses, but..on the probity of the direct and circumstantial evidence addu,ced and the inferences fairly and reasonably drawn therefrom.
l s . Conclusions of Law I. Protected Activity Section 210 of the Energy Reorganization Act prohibits discrimination against employees as follows: P Discrimination against employee (a) No employer, including a Commission licensee, an applicant for a Commission License, or a contractor or a ' subcontractor of a Commis-sion licensee or applicant, may discharge any employee or otherwise discriminate against any I '.__~ employ.ee with res'pect to his ' compensation',. terms 1 .2 ~ ~~~ g'pnditi6ns, or privileges of ~ampicyment becapsa. ~~e the employee (or.any person acCing pursuant t6 a -~~ ~ request of the employee) c ._., 3 (1) commenced, caused _to be commenced, ~ or is about to commence or cause.t.o be com-s menced a proceeding under this ch' apter or the. Atomic Energy Act of 1954, as amended, or a proceeding for the ad' ministration or enforcement of any requirement imposed under this chapter or the Atomic Energy Act of 1954, as amended; (2) testified cn: is about to testify in any such proceeding or; (3) assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other manner in such l a proceeding or in any other action 'to carry out the purposes of this Act or the At'mic o Energy Act of 1954; as smended.' 42 U.S.C. S5851 I In view of the protective purposes of the Act and the broad language of subsection (3) above, application 6f the section has not been confined to formal complaints to the NRC. It has been expressly held that Section 210 protects
I 9-l quality control inspectors from retaliation based on internal safety and quality control complaints. Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159, 1163 (9th Cir. 1984); Atchison v. Brown & Root, Inc., supra, Decision of Secretary at pp. 12-13. To similar effect, see Phillips v. Department of Interior Board of Mine Appeals, 500 F.2d 772 ( D.C. Cir. 1974 ), cert. denleo, 420 U.s. 938 (1975); Donovan v. Stafford Construction Co., 732 F.2d 954 (D.C. Cir. 1984). It is thus not necessary for Complainant to establish that it was solely his complaint to the NRC in January that was protected by the statute and that Responden't knew of it when he was discharged. Of course, a fairly good circumstantial case of retaliation therefor could be made out that in spite ~ of the June 14th meeting with Purdy, Brandt and Tolson regarding.-- 2. harassment and intimidation-of inspectors by Williams,.- ~ 7~- Brandt. a-? Purdy,-shows clearly. that he was not then :in#I~ y ~-: _ 7~ - Complainant's promotion ef fective July 10th, and approved b di3 favor. uut af ter Brandt' had been info *Fmed by. an NRC" ' ~ ~ ' ' '~ $gnves.tigator at the end of July that a complaint-tad been piled by an unidentified inspector involving harasgment and 1]4ntimidation by Williams, it would_not. taFe oenius 'to put a y two and two together and =* 1anst suspe ct that fhs NRC complaint Deen filed bv Comolainant. It was only thereaf ter that he~' $*jshad was found objectionable. I One need not depend, however, upon such inferences to establish the requisite activity. As was pointed out in Mackowiak (supra), the NRC regulations require licensees and their contractors and subcontractors to give inspectors the authority and organizational freedom required to fulfill their role as independent observers of the construction - -~ process (10 C.F.R. Part 50, app. B. at.413), and inspectors l must be free from the threat of retaliatory discharge for identifying safety and quality problems. The undisputed direct evidence herein establishes that at the meetings of June 14th, August 18th and August 24th, Complainant persist-ently complained to management officials about harassment and intimidation of Coatings Inspectors by supervisors. There l ls not the slioh_ test doubt that in so doino ha was edcaced in ~ a protected activity. l- ~ l o
l. l i II.,, Retaliatory Mot,ive There is no need for any speculation as to the Respondent's motives for counselling and discharging Complainant. They are clearly expressed in a single document (Respondent's l Exhibit H), the contents of which are not altered in any material way by the testimony of any witness. Because of its l prime Unportance in the resolution of the basic controversy l herein, a copy of Respondent's Exhibit E, designated-as Employee Counselling and Guidance Report, is annexed hereto as Appendix A. The typewritten portion of the report states plainly and unequivocally the reason that Complainant was summoned to the counselling session. The reference to seveial occasions on which Complainant verbally expressed a complete lack'of
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confidence is obviously directed to his complaints on June 14th ':1 and Aug,ust 18th about.ha_rassment and intimidatich6f'inspecto $. It also reflects-the same condition which Brandt foundsked been i caised' by Williains. Mention of the speci2ic incident o3_. ' ~- August 24th, of course, refers again to Gomplainantf s iocal ^ objection to harassment and intimidatign.~ Any po'ssible doubt ~ as to Respgndent's retaliatory intent is disspelled-by the last typewritten sentence, which states flatly that tany recurrence of such complaints (of harassment and' intimidation) will result in disciplinary action (i.e.,. suspension, demotion or discharge ). Thus, Respondent threatens to fire Complainant if he continues to engage in the protected activity, thereby providing him with documentary proof amply sufficient to make out his prima facie case. The same document also furnishes proof of another motive. The. handprinted postscript in the lower right-hand half of the report is signed b~y Purdy and sets forth the facts which he believed to warrant Complainant's discharge for insubor- .dination. Whether his version of what occurred at the counselling session is accurate or not, there is no doubt whatsoever that his explanation articulates a legitimate, non-discriminatory reasor. for Complainant's termination. It ~ follows that we have a classic case of ~ dual' motiv'e. 'See Mt. Healthy City School District v. Doyle 429 U.S.1274 .(1977); N.L.R.B. v. Wright Line, 662 F.2c 899 (1st Cir,. 1981). 8 I 4 ,_..m._
. III. The. "But For" Rule Under both of the above decisions, a violation of an employee protection provision is established by proof that the employee would not have been discharged but for the protected activity, or is negated by proof that he would have been discharged, even in the absence of the protected activity. N.L.R.B. v. Transportation Management Corp., U.S. 103 S.Ct. 2469 (1983). Under the rule in Mt. Healthy (supra), a constitutional rights case which has been held applicable to violations of Section 210 of the Energy Reorganization Act, the burden of proof shif ts to the employer to prove by a preponderance of the evidence that the employee would have been discharged even in the absence of the protected activity. Consolidated Edison Co. of N.Y.,~Inc. v. Donovan, 673 F. 2d 61 (2nc cir. 1952). Judge campoell's opinion in wright Line (supra) clearly stated that upon the establishment of a , :-2, prima _ f acie case, _it is only the burden of going'Ebtward: s ,7.-, with the evidence that is shifted to the' employer, andb4het i. , _7 the' burden of persuasion remains with the~ complainant;tya.t........ )- the Board 's order shif ting the burden of persuas}gn to the i employer was enforced, since there was substantial evidence . to support _the., conclusion that the employee was direharged because of his protected activity. Consequently.f Wright -Line is of ten cited in labor cases to indicate 'that-the burden shif ts to the employer to prove by a preponderance of the evidence that the discharge would have taken place in the absence of the protected conduct.
- See, e.g.,
N.L.R.B.
- v. Vincent Brass and Aluminum Co., 731 F.2d 564 (8th Cir.
l 1984). In the Fifth Circuit, in which the ins tant case originated, it was held in a fairly recent. decision,under Title VII of the Civil Rights Act of 1964 that the ultimate bur' den' of proof is on the plaintiff to establish that the termination would ,not hav6 occurred but for the protected' activity, the Court noting that the Mt. Healthy analysis has never been applied to Title VII cases in that Circuit. McMillan v. Rust College, Inc., 710 F. 2d 1112 ( 5 th Cir. 198 3 ). In cases under the National Labor Relations Act, however, it is 'heid' in 't'he same Circuit that the burden of proof shif ts to the &mployer ~ to establish as an af firmative defense that the same., action would have been taken in the absence of the protected, activity. See N.L.R.B. v. Associated Milk Producers, Inc., 71.1 F. 2d 627 (5tn cir. 1983). I am not aware ot any oecision in the Fifth Circuit that determines the application of either rule.
- to alleged violations of Section 210 of 'the Energy Reorganization Act. I thus find it in all respects appropriate to= be guided by the Supreme Court decisions in Mt. Healthy 6(supra) and Transportation Management (supra) in requiring l Respondent ~- herein to establish by a preponderance of"th'e; evidence that the. Complainant's employment would have bee'n tesm'inated even ' ~ in the absence'of his protected activity.+ The foregoing discussion of burden of' pr of ~ is 6f consequence in the resolution of the issue' as-to which of the dual motives was controlling. Analysis of the facts leading up to the discharge shows that the proscribed and the permissible reasons were so closely intertwined as to be almost inseparable. Bearing in mind that the express purpose of the. counselling session (in itself an adverse ~ - - - personnel action) (i.en -protesting -harassment and intimidation-of inspepc.was to suppre '), - ~ e. ~-~ s ~ -; 3 it is clear that--when Purdy handed Complainant the counselling- ~ ~ report, Complainant read it correctly as[a threat.of. dtTBharge' ~ ~ ' if-he did not change his attitude toward such harassment and "a intimidation. The unntistakabli substarice of his.rgply wa.s N that he would-not change that attitude, so Purdy$1m;ght just mi _as well " walk him to the gate" (i.e., discharge right . di then). ~?h A) The assigned reason for discharge, however, is not "? Attitude, but Insubordination. Though he unquestionably 90 refused to comply with Respondent's direction that he cease MA and desist from engaging in the protected activity, I find no
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He did not refuse Purdy's reque'st to comment on it. He discussed i~t briefly and pointeMy, albeit -~ profanely, negatively an6 belligerently. He did not refuse g to sign the report, because no.one asked him to sign it. 1 Purdy concludes his explanation of the discharge as follows: Interpreting his response and the response presentation as blatant. - insubordination, I chose to accept his offer and terminated him for insubordination at 1630 on 8/26/83. e e b
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Respondent's proof falls short of establishing that Complainant was terminated for insubordination in the sense-of refusal to obey a lawful order. The ultimate question is whether it proved by a fair preponderance of the. evidence-that even in the absence of the protected activity, he would - ~ have been discharged for insubordination in the broader. sense of defiance of authority. When Purdy handed the counselling report to Complainant, Respondent was providing the latter with an insurance policy against retaliatory discharge. He could continue to complain about harassment and intimidation of inspectora. to his heart's !rcontent, without fear of reprisal, because he had ironclad C documentation of his employer's intent to violate the '~~. *Act. All he had to do was to avoid any act or om.i.s_sion'. tha.t ',..i ~.- would.. provide - Respondent. with a legitimq,te excuse to fire ' ' . r. ? 7_Z him At that' moment, he was in the drive.r's-seat. Jiutmen he-blew it. He lost his " cool" and handed Purdv a color-able --- --- CG excusa nn a silver plattese It was not fust the sas or roul ~1aneuage, for we can taxe orficial notice ena t a construction ' n:n I${ site fs not a.m id-victori an drawing room,-and using-four- jg letter words is as common as wearing nara nats. t;'Nevertheless, e-J -i~c ca m % oe gainsaid that he oi%T!TV and vigorous 1v defied 9;j the autnority or manaaement, and in effect, told Purdy to 1K@ "take his 3ob and shove it." Section 7in ana= nne require ) any employer to taxe that kind of abuse from an employee. d;% i The evidence does not support Complainant's suggestion 'N l that the counselling session was a " set-up," or the Area l Director's finding that he was scheduled for termination before that session. The reasonable inferences to,be. drawn from the facts in the record are that Tolson had cautioned l against drastic action, but Purdy became exasperated by [r .. Complainant's response and fired him on the spot. The claim-of. insubordination therefore is not pretextual, but provides 1 the genuine impetus for the discharge. That conclusion is in accord with the express view of. the Secreta.rr of Labor to l the ef fect that once an employee by his own misconduct provides the employer with a legitimate excuse to fire' him, little or no weight should be given to, evidence th.at_the discharged employee was preliminarily disciplined in r.etaliation for engaging in the protected activity. See Dartey v. Zack Company of Chicago, No. 82-ERA-2 ( Decision of the secretary, April 25, 1983 at p. 11); see also, Atchinson v. Brown & Root, Inc., supra, (Decision of the Secretary, June 10, 1983 at pp. 25-26). J i ~~
Upon the foregoing analysis of the evidence, I am constrained to conclude that Respondent has established by a fair preponderance of the evidence that but for his insubordination as above described, Complainant.would not have been discharged, and that therefore his termination was not in violation of Section 210 of the Energy Reorganization Act. RECOMMENDED ORDER In view of the foregoing, the above-entitled proceeding is dismissed. 'P /,7 ~ j / [ '0 ) I((g-{ ~.. ~' RUBQRT J. FE) ~ ~ Adm{'nistra't1 e Law'qe =_.' u ' p -... -- = i ~~ Dated: 3 0 NOV 1984 E ~ Washing t6n, D.C. RJF7mm1 s.:a ; I -6, gm ~ O
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i. C 'gpu.-lM) nl:.;aemm .- Q h ( &peschy') T M.cTIE COURSII.ING AND CUIDANCE REPORT th51MELA.o c ( / IMPLorgg's NAME BILL DUNHAM ' Cg55
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RIASON 703. CohTI RI5CI: (Check One) ~ Work Perfor=ance - ~.. A::endance .~ ~" Work Habi:s-Acritude y ?ay Evaluation Pu=c -m9 4 y ~ Ocher (Specify) C, s cation 4 Bill', you have on severa1' occasions verbih v exeressed g yggef-jog's s_rAr m:n: a complete lack of confidence in tne project protective coatings, -Quality, Engineering and Production, program. The most recent and the specffic incident of was recorded . _. in the Qt. office on Wednesday 8/24/83, during the open information exchange between P.C. consultants and the Ouality insoectors. Your continued domin'ancefof the me. ting by sco f fing -at,. and/o r expre ss ing s co rn o f an d ' fof the p ro gYa'm~ wasdis rupti e. Z, --counter.oroductive and _uneroffessional. The dese*f bed +ttitoda s a cL,=.** 4 a a e ann aat - anc w11I not be tolerated and any further demonstrations Qf this na;ure..wnl'Vesu3t ' ' 7. ' <- in disciplinary action.
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SERVICE SHEET Case Name: William A. Dunhan v. Brown & Roo t, Inc. Case No.: 8 4-ERA-1 A copy of the foregoing RECOMMENDED DECISION AND ORDER was mailed to each of the following persons at tne accresses listed below on the following date: Date:_ By: Mr. William A. D un~h am Hon. Raymond J. Donovan s1700 Baywood Drive, Apt. 504 Secretary of Labor Bay City, TX 77414 c/o Gresham C. Smith, Esq. Director,0ffice. of. . l. ~- ~ Mary L. Sinderson, Esq._ _ Administrative Appeals /USDQL Sdnde rs on,-Daf f iA, Flores & Stool ' Room-N-24 27
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soniversity Bank Plaza 200 Constituti,on Avenue,- N.W. 5615 Kirby Drive, Suite 710 Washing 4dhi'D.C. 20210 ~ Houston, TX 77005 = Brdde L. Downey, Esq. '/'" i ' Bishop, Liberman, Cook, Purcell ' - ~ g & Reynolds '~ 1200 Seventeenth Street, N.W. Washing ton, D.C. 20036 fBrown & Root, Inc. P.O. Box B ~ Houston, TX 77001 Area Director, Wage &' Hour "D. S. Department of Labor . 819 Taylor Street, Room 7Al2 Ft. Worth, TX 76102 Cornelious Donoghue, Esq. Deputy Associate Solicitor v'U.S. Department of Labor Suite N-2620 200 Cons titution Avenue, N.W. Washing ton, D. C. 20210 /N'uclear Regulatory Commission f Office of Inspection and Enforcement Washington, D.C. 20555 ..}}