ML20235D557
| ML20235D557 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 07/01/1987 |
| From: | NRC |
| To: | |
| Shared Package | |
| ML20235D383 | List: |
| References | |
| FOIA-87-90 NUDOCS 8707100218 | |
| Download: ML20235D557 (32) | |
Text
{{#Wiki_filter:-_ __ [ DOL Complaint by 5 Former Vogtle Employees 1/16/85 . ~ ~
", was discharged
~ Tor refusing to submit to a drug urinalysis.
r- - 1/24/85 L .
. j, ...
WLs discharged for insubordination, excessive absenteeism,- ano uns sfactory job performance. % 2/5/85 bmisconduct)b and violation of work rules.
),'wasdischargedfor 3 1
2/27/85 (to pass a dru]g u(rinnlysis. .
]wasdischargedforfailing 3/1/85 .['Nischarged for refusing to submit to a drug urinalysis. .),was 5/13/85 All five former employees submitted a complaint with the Department of Labor (DOL) alleging retaliation by Georgia Power Company (GPC) for having engaged in protected activities.
7/10/85 All'five complaints were dismissed by DOL as not having been timely filed. (Complaints must be filed within 30 days under section 210 of the Energy Reorganization Act (ERA)). All five former employees appealed the initial DOL decision and requested a-hearing. 8/20/85 A DOL hearing wcs held in Augusta, Georgia to determine if the 30 day limitation for filing of complaints had been tolled due to a) Failure of GPC to post NRC Form 3 or b) the former employee's oral communications to an official of the NRC (Bruno Uryc). 1/24/86 The 00L Administration Law Judge (ALJ). issued a recommended decision to the Secretary of Labor which dismissed the complaints because the 30 day time limit had not been met. The ALJ found that GPC had ! l properly posted NRC Fom 3. The fact that the 8/82 version rather l than the 9/84 version was posted was dismissed by the ALJ as not ! mattering since the former employees denied ever having seen the l form. The ALJ also found that only two of the five former employees had contacted Bruno Uryc within 30 days of their dismissal, that Mr. Uryc was not aware they were complaining of discrimination, and that the two failed to respond to a sumation of their complaints sent to them by Mr. Uryc on February 26, 1985. t 2/21/86 The Secretary of Labor granted the five former employees request to file briefs before him. The Secretary's decision is still pending. Ir:farmation in th's re:ctd was deieted in accordance w.th the Freedom of informat!cn i Act, exemptions G EOM F W 9 6 k/ b 8707100218 870701 PDR FOIA PDR BAUMANB7-90
- .in the Matter of Arbitralian Between
- Georgia Fom er Cornpany .
Yogtle Nuc!c ar Project Construction . OPINION and , AND 1 Lacd Union No. 424, Internatiend ' AWARD Union of Operating Engineers, , 4 F L-CO. ' ' AAA Arb Case No. J o-3 0-0251-s1 e August 12,1982 . sievance
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AR BITR ATOR: Thomas J. McDermott was selected as the neutral arbitrator for this arbitration la accordance with the piecedures of the American Arbitration Association. APPEAR AN CES:
% bearing for this arbitration was conducted in the conference room on tbc
( Vogt!c Medear Project construction site, Burke County, Georgia, on April 2s,1982. ,
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& receipt of the transcript and the filing of post-hcaring briefs were completed on August 4,1982. At the hearing the representatives for the parties were as follows:
For the Union Walla ce D. Brannon Int eisational R epresent ative, I.U.O.E. Hubert Kees Business Manager, Locd 474,I.U.O.E.
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Wald Howard Asst. Business Agent G rie vant Eg1_*h e cemenns Charles W. Whitney, Esq. Troutman, Sanders, Lockerman - a Ashmore Attorney Harry H. Gregory III construction Project Manager Ga. Power Co. Vogt!c Project L. To ma G arne r Supervisor Safety, Labor Information .inth.is record was delete'J , , g , , ;,,, - in accotiance with the l'reedom of lnictmation , Act, exen otions M ggv.9 o U/L
i
. Frederick R. McCarty Project Manager Walsh Construction Co.
Edwin D. Groover Quality Assurance Site Supervisor John L. Mercer Investig ator Capt. Ym. E. Johnson. L. Johnsor Richmond County Sherif f's Dept. Witness THE GRIEVAN CE The gric vance of was fDed on November 17, 1981. It states the following: Secu(rsty forwas a]removed from the drug2/13/81. arrest job by]Ga. has been Power barred from Ga. Power Project.{*[.. ] arrest (ed) on
, the job, but hi.s sale of narcotics was not job related.
SACKGROUND ( . The grie vance arose at the construction site of the Alvin W. Vogt!c Nudear
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Project Unit 1 and 2, which is located in Burke County, Georgia, ne ar August a, G a. The plant, when (ompleted, will consist of two 1100 megawatt units with two
.. pressurized water reactors designed by Westinghouse. The Georgia Power,, Company, ;
who is the o wner of the plant, is also, the General Contractor for the entire i construction project. Initial construction began in 1974. Shortly there af ter, the project was shet do wn. In 19 77, it restarted, and the first unit is due to coce oc line in the Spring of 1987, whue the second unit is due to be on line in the Fall of ' 1988 Over"the construction period approximately 30 contractors will be involved. At the time of the arbitration, there were approximately 8000 persons employed on the project, of whom around 850 are employees of Georgia Power Company. In 1974, the Company, on behalf of itself and its contractors sed sub-contractors, signed a Project Agreement with the International and Local Unions
,' affiliated trith the Building and Construction Trades Department AFL-CIO and th ,
Gener al Te amst ers. Oper ating Engine e rs Loc al 4 74 was one of the signators Contained in that agreement are the following provisions, which are applicab!c to thi case: ARTICLE 4
, R eferral of Men *
(1)..... A pplic a nt s for the classifications of journeymen, apprentice or trainee, and hcIper required by the Employer en s aid construction projeet, shall be referred to the Employer by the Unions. The Employer shall have the right to r eje ct any applicant referred by the Unions. These general work rules for Plant Alvin W. Vogt!c Nuc! car System will become part of this agreement. (2). Al.oholic beverages or narcotics will not be ( allo wed. Anyone caught drinking or under the influence of drugs or alcohol will be terminated and barred from the job. (8). Any employee terminated for violation of these work ru!cs will not be hired by any other contractor on job site In addition, in the General Work Rules promulgated by the Company, dated August 1,1980, ru!c number 19 states the following: Any employee terminated for violation of these work
, rules will not be hired by any other contractor on the job sit e for a period of no less than thirty (30) working days.
Severity of the violation will determine if the e mploy e e will be barred from the job indefinitely. Tbc Union involved in this g rie v anc e is L o c al Ucio r. mu e b e r 974 of the
Int r anstional Union of Oper ating Engine ers, AFL-CIO, which is one of the s ig n a t o,, s ab Project Agreement, it is the bar g sining ept e s e nt stive for apptesimately c: Inginects employed on the construction site by four contractors. %c Grievant, }
; , began his employment as a Crane Operator with Walsh Constructi Company in February,1980. He has been a member of Local 474 for about (i ye ars.
%c events leading to the incident of the removal of the Grievant from t construction site began during the Spring of 1980, when the Company became aware a serious drug problem involving the construction site. Cont a ct was made with t Burke County Sheriff's Department and the Georgia Bure au of Investig ation. - T.
Company obt ained the services of an undercover investigator, who was deputired . the Burke County Sheriff's Department. He sought and obtained a job with Wal: Constructi,en Company, first as a Cement Fini.nher ,and later was placed in the To Shed. His work en the site began es August 18, 1980, and it was to be terminat e es January 30, 1981. he investigation was to be culeninated en February 13, its ( ~ with the arrest of 15 employees of various contractors. Of the 15, tws!ve arres were based upon the evidence supplied by the company's undercover investigate Among them was the Grievant,1 - jwho was arrested en two counts of sellic m ariju ana.- Subseque ntly, the Grievant, along with 12 other employees of Walsh Constructic Company, were terminated by that Company. %c notation placed on their terminatic slips was " pot for rehire". In a letter, dated Apru 8,1981, to Business Manager Kcc of Local 474, the Construction Proje ct Manager for Georgia Power Companyg M Gillespie, stated t'es following, as it related to the Grievant and another Engince who had been fired by the Walsh Company:
....In vie w of the s e nsitive nature of this construction project, and the great responsibility which has been placed on Georgia Power Company as owner in order to ensure that this nuc! car plant is buut saf ely and
le abow
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- waoac oms to re tuf 0 le jts propg ety, i
we shan re vico thb matter af ter the isaves involved with theb arrest os crirdnal charges have be en resolved. In the lat e rie, ple a s e do not refer either person to ur contractors who are working at thh site. Hewever,{ did re: urn io work on the proje ct sit c. F ollo wie: dbc.harge by Wa) b Construction Company, the Grievant was hired on a dauy basis an Operator /outr by Sims Cranc Se r vice, a cr ane-r est al iba. On Septcmber its), be was dispatched by the firs % Augusta rental office to the Kelly Dewster Company, which had a contract to inst aD a dewater*ms system at the vogtle Plant.
.1.ornia Rough Terrain Crane and operator were rented by Kelly for work on t projeca.
When,{ arrived on the job, he was given a temporary accurity badge, and worked as an employee of Sims on the Kelly project from, September 23rd to Novem: si 1981. According to Company witnesses, they were unaware that be was working 4 k the construction site. Shortly before November 9th, Management was contacted another employee, who had been barred from the project, and be complained about i f act that - was working on the site. At about the same time, was given opportunity to work directly for Kelly Dewatering, and he applied for a permue security badge. Georgis Power Compacy co=tacted Kelly Dewstering med dhected : Cent:seter to remove hian, as be was barred from the project site. That action si the to the (Ding of the grievance. ne Grie vant's involvement in the drug-bust incidenta developed out of i contacts he had with the Company's undercover agent, Mr. Mercer. According to
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latter, around a week prior to November J,1980, he met the Grievant for the fi. time, mod in the conversation he had with him, he stated that he was int erested buying some drugs, and he asked him if he knew where there was some he could b:
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told hiin that he did not have any at that time, but that he would let him kao. I
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when he could get some. On the af ternoon of Novembct 7,1980, the Grievent approached Mercer in the Tool Shed and told him that he had some good pot. He wanted to know if Mercer l 3 was interested in buying some. *!be latter said that be would like to buy a bag, ic ll
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order to try it out. [ jthen stated that, if he would go to his house af ter w ork, he would sell him a bag of pot. ; t That night around 9:00 P.M., the Investigator went to the Grievant's trader ! home, and he was brought into the latter's bedroom. (] pulled out a large plastic I bag containing approximately one pound of snarijuana. He mentioned that he did no l t have a scale, but that he would pull out what he estimated to be an ounce. If it ) came up short in weight, the Investigator was told to leth )know, and he wou!c make is up, 'the marijuana was put in a smaller bag, and Mercer' paid p 5.0 0.
- At the same time, he asked about the possibility of getting a quarter or a half u-(_ told him he would 1st his know. Subsequently, the subst once that vas !
pound.{ purchased by the Investigator was subject to a laboratory analysis, and it was fouc: ; to be less than 1 ounce (11.9 grams) of marijuana. l A veck later, on November 14, 1930, around 10:00 A.M., the two met again i: l
, I the Tool Shed, an told the agent he had a quarter of a pound and a ked, if b I -
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was interested la buying it. Mercer said be was and they artanged to acct in th-Walsh Construction parking lot. The Investigator went to his car, while v ali c to his motorcycle, lif ted the se at and took out a plastic bag of marijuses. H brought the* bag over to, Me r ce r's c ar, got inside and handed it to him. He the suggested that they drive to a convenience store off the project site for lunch. A, c-- l that location, Merect paid 130.00 in cash for the purchased subst anct. Th later laboratory report confirmed that it was marijuana with a weight of 3.2 ounces. The Grie vant's testimony relative to these tr ans a ctions dif f e re d f r oc- ti _ _______________ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ~
testipony of the Investigster. A c cording to[ ]hc knew Mercer for about sit moniks prior to the f*u st transaction, and that they socialized frequently. His initid testimony was that sometime before the first transaction Mercer came to him and telc rdtb he was going to Macon to see his mother in the hospital that he was acw in towc and did not know anyone who would have any drugs. He then stated that Mercet asked him if he Could find any. stated that his answer was that he wou]d chec2 it ost, and that Georgia Fowcr was full of depe dealers, so that all you had to de was go out and look. then stated that a Couple of vecks later he found some dope in town, amG be ' bought what he wanted and came and sold it to him for what he paid for it0 The delivery was made in his traIIct, and be admitted it was from a lorscr bag, but his claim was that it was not his, but a friend's. He also claimed that he toic
' Mercer,he ,was not making any money from the transaction, and that Mercer said "Yoe are a real friend to do that". His further scatimony was that, Mercer.lpaid for it wit {
( a che ck, which later bounced, Ho we ver.. at a subsequent date he got his money froE Merces. With respect to the November 14, 19 80, incident, his initial testimony on!5 related to the November 7th sale. Also, he denied that he admitted to Capt:5! - Johasen that he made other sales. On further cramination he admitted w to thc Novaaber 14th sale. His testimony was that) Mercer approached him a week or twc af ter the first sale and told him the pot he got was re al good. H e als o a ske d bi= t < tet some more. He then stated that he got the pot from the boy and paid Flic fe it. When he t old M e r c e r th e h a d it, tbc latter asked him to bring it oss to th proje ct. At !t$nch time, he got the marijuana out of his motorcyc!c, and when' Me r ce started to look at it, suggested that they drive to the convertience store., After his arrest, and on the advice of his attorney, he p!caded guUty to the sa3 of less than an ounce of ma rijuana. His sentence was a 11,000 fime and 4 yeas
pr ob a tica. Os Nove mbe r l l, 19 41, he pr epar ed and signe d a si st e ment in w hich hc
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1 related only to the first instance of selling the marijuana. Uc st atemcat also claimed that about a month after the salc, Mercer approached him at work, identified himsclf as an undercover agent, and told him he,, ]was in big trouble, and that he would get his off the book, if he would help him bust more people. %c offer was refused by the Grievant, because hc believed it to be wrong to get someone's friendship and then bust them. . Investigator Mercer denied using a check to pay for the marijuana, and be denied he ever told the Grievant he would get him off, and that he was an undcrcover ascot, because that would have endanscred his life and the investigation. He further denied
. th a t they socialised frequently, and he stated that he met the Grievant o nly a relatively short tiac before the first drug transaction.
POSM10NS OF THE P A RTTES ( .
%c basic Company position is that the right to bar certain people from its property is an inherent right of management, which it has ne ver relinquished in negotiations with any Unions. It also relics upon Article IV, Paragraph (1) of tbc Project Agreement, which gives to Georgia Power Company the right to reject ant
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applicant ref erred to it by a Union. This, the Company st ates, is what it did in tbc
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case of]-- 1 and it is this rejection that the Union is sc cking to cresc. 7"... ,
,J tbc Union now seeks to g ain in arbitration what it volunt arily g a ve awayin ne gotia tions.
he Company stresses its right to promulgate and enforce reasonable work rdes, and it stresses that ,its policy relative to drugs is a ve ry re asonab!c one. It helds that the use or sale of drugs by plant employces would detrimentally affect the safety f and efficicacy of const ruction ope r atiens for obvious reasons. In support of tH l \
I cont ration, it cites nst anly the testimony el Company witnesses,'but also that of the Union's Business Manager. In the Grievant's case, his employer Walsh Construction i Company, was particularly concerned, because he was operating a tower crane, 'an estremely large, import ant and potentially dangerous piece of equipment". dei i Company also cites the very catensive quality assurance program it maintains, and states that a toleration of drugs on the Plant Vogtle construction site would seriously 1 l impair the efficiency of construction. I with respe ct to specific violations by the Grievant, the Company points to the Grievant's admission of having possession of over a quarter pound of marijuana on the f
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site, h at mere possession of drugs was justification for his discharge by Walsh Construction Company. Barring him from the job site, which is a less drastic step, is certainly justified. It further cites abe two sales of drugs made by the Grievant, and to his admissions to the Police Captain, who gave him his polygraph czamination, that he had admitted he used Qusaludes, speed, pot and cocaine. ( Finally, the Company stresses the fact that the Plant Vogtle project involves the construction of a nucIc ar power plant. As a result, the dangers that are present, when workers use drugs, are particularly acute when the work iuvolves that kind of construction work. Not only are the possible accidents a f actor, but employees imder
-- the influence of drugs may perform poor work, which may ! cave hidden and fatal Daws in construction, which may cause a disaster months or even years later.
'!be Company further refers to the responsibil.ities that the Company has to the Nuclear R egulatory Co m mis sion. That agency is very concerned with the impact of drug abuse at a nucic ar plant on the safety of both the workers and the public, le support of this cont ention, it cites reports of concern with drug use in several atomic energy plants in the country. .
Finally, the Company holds that public opinion must be satisfied that there are i no drets at Plant Vo gtle. Particularly, is it concerned that the belief that there is s l l l I ___ __--------------------_ - - - - _ - - _ - - - - - - - - - - _
. 'drog probles c an give ammunition to public int erest groups like Georgians Against J " ~ !
Hurlear Energy. Actions by hostile pubuc interest groups can wreak significant havoc l with a construction schedule. nc Union position is that the Grievant in this case was not a drug dealer, as 1 the Company charges. It agrees that s las'de an error la judgment, but it L contends that it should not be a basis for barring him from the construction site. ,
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l De Union contends that la the presentation of the case, there was not one j shred of evidence that would indicate that the Grievant ever used er was under the influence of drugs on the job. It calls attention to the testimony of the Walsh Construction Company's Project Manager, who' stated that he had never received any complaint from , supervisor concerrdag his job performance or dependability.
%st, it states, is not the pattern of a user of drugs.
nc Union further argues that the Grievant was maneuvered into the two sale situations by Investigster Mercer. It charges that the latter's intent was to get him ( inte such a situation where he would have to pasist him in his investigation by turning in pushers. he Union aise charges that the Company is more concerned with making an
,__ q esseple of the Grievant. It ca.11s attention te the fact that ; went back to work en the project, and it was en!r after a disgruntled employee, who also had been 4 % .
barred, complained about presence, that the 1stter wa's then barred. DISCUSSION AND FINDINGS
%c part esi agree that this is not a discharge case, but a matter of barring thr person from croployment on the Vo gtle property. The r e f o r e, this action does cot f orest all the contr acting e mployer from schiring the Grie vsnt and using hic oc constructico proje cts for other customers.
Under Article IV, Paragraph (1) of the P roje ct Agreement the Georgia potre: Company does have "the right to rejcct any applicant sclerred by the Unions". nis right to refuse to accept person 6 for employment, who have been scferred to the Company by a Union, c!c arly gives to the Company the right to bar a potentia! coployec from its property. However, as the Company has acknowledged, this right te bar an employes from its property is not a right, which may be czercised arbitra Uy, capriciously or discriminatorDr. %cre must crist a reasonable basis for such action.
%c Project ' Agreement between the parties also contains a set of general work rules. Rule Number 2 states that alcoholic beverages or narcotics will not be allo w e d. Although it does not specifically "use the words on the Plant Vogtle construction project", there is no other meaning that can be attached to the citec~
sent ence. hus, there is an agreed to rule between the parties which c!c arly cacompasse,s the forbidding of the possession of beverages or narcotics on the Plant Vogt!c site. R ule 2 also states that 'anyone caught drink.ing or under the influence of drugs { or alcohol will be terminated and barred from the job". his work rule does not specifically mention the selling of alcohol or drugs to fellow employees, who msy use such on the work sit e. However, it is obvious that a person, who was guilty of ' selling drugs to workers, who may use them in such a f ashion that they would be j eder the influence of the drugs on their jobs, would have f ar more potential for injury to property and persons, than a single employee, who has been drinking c: l taking drugs. %c latter's potential for injury, as great as it may be, is nevertheless limit e d t o his o wn ar e a of work. ne person selling, on the other hand, must secep- l responsibuity for all possible employees, to whom he may provide the drugs, and he
,, must share responsibility for any or all potential injury, which may occur.
1 Rule Number a provides in part th at "any employee t erminat ed for violation o I i these work rules will not be hired by any other contr actor on job site". n as l ee .o
. I effect eschanged the f our ounce bag in the park.ing lot, although the money was n, jj enchanged until af ter the two had lef t the cons t ruction ptoje ct. The f a ct the thieugh the ples bargain that sale was dropped from the. legal charges does not ask the infraction any less real.
(' na Union's contention that Investigator Mercer / maneuvered the two traniscrier se as to get the Grievant to help him with his investigation is only based on t> Grievant's claim that Mercer, told him he was an undercover man, and asked bis i help him. ne entire conversation was denied by Mercer, and his captanation'ef wh he would never disdose his identity as an undercover agent was most plausible.
%c Union also stresses that there is no evidence to prove the Grievant cyc used er had been under the influence of drugs on the job. However, there are th admissions made by the Grievant to Investigster Mercer and Captain Johnson. Tosb former, he, told of taking speed on one day on the job, and to the latter, he admitte {
that in the past he had used quaaludes, speed, yet and cocaine. While there is n l ( s'vidence that the Grievant la en addict, this testimony is just one more factor i support of the barring action. It is more support for why the Grievant should not b given special treatment, wht!c ether former employees remain barred. Thus, we have an employee, who admitted selling drugs to a fe!!ow employee o _ two occasions. He may not be a regular dealer in drugs, but there is no way o knesing how' many other sales he may have made to other employees. He was foue guilty of selling drugs, and he was discharged by his employer, Walsh Constructive l Co mp a n y. No grievance was filed ag ainst that dis ch a r g e. The Georgia rowe fi Company acted within its right, when it barred along with the other consicte 1 { employees from the construction project. De f a that s as ab!c to work fo another contr a ctor en the site for a period of several wuks, without Management' knowledge, did not minimize or revoke its right to bar him from its property. Ther did e xist a re a< enable basis for the Company action. i l _ _ _ - _ - - - - - - - - - - - - - - - - - - - - - - - - A
AWARD It is therefore my award that the grievance be denied. I J ~- . \%< w t
'!homas J. McDermott Arbitrator .
Given at San Antonio, Texas, this 12th day of ' August, 1982 9
NDGMENT IN A civil CASE
%rtilch [lafra [istrict Courf AU D ON
.. . C#ss E *T IT LE DOCRATMWestga CY184-084 v. Mamat of Aeoca on asAoistaart BALSB CosS11DCTION COMPANY, a division of CUT F. ATEINSCE CD. 3. .AYANT DENTIZLD O Jury Verdict. This action came before the Court and a jury with the judicial officer narr,ed above pr i The issues have been tried and the jury has rerdred its verdict.
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A Decision by Court. This action came to trial Nfore the Court with the judge $magicaners) named above prending. The issues have been tried aduziand a decision has been rendered. IT IS ORDERED AND ADJUDGED
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that in accordance with such decision, rendered on the 10th day of January,1985 JUDGMENT is bereby entered in f avor of the defendant, Wl,SE CONSTRUCTION COMPANY y and age. inst the plaintiff, , The complaint stands dismissed and the parties are instructed to pay their own costs. ( Information in this record wr deleted in accordance with the freedom of information Act, exemptions .__3 F0IA M -9 0 T/3 . Cuan DATE EENRT R. CRUMLET, JR. JANUARY 10, 198: isva ouvev C6 san.
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, .v: . .. i c FILED
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IN THE 1.TNITED STATES" DISTRICT' COURT TOR THE
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s 3 '.g - O $1 SOUTHERN DISTRICT OF GEORGIA *
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AUGUSTA DIVIS,10N..... ,. . . CLL. .ygi So. 0 e i. Jf C;
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-u-WALSH CONSTRUCTION COMPANY, , )
a Division of Guy F. Atkinson )
--' Company, a'Nivada Coip6raticin,' ) ~ ~ ~ '~" *-
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ORDER m a.a.. Plaintiff ! . :-:
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.jwho is ethnically identifiable
( as bla'ck, brought this employment discrimination action against his former employer, defendant Walsh Construction Company, alleging that defendant by its actions discrimina.ted against him on account of his race, in violation of 42 U.S.C. I 2000e, e,t, sea., otherwise known as Title VII of the Civil Rights Act of 1964, as acended. The Court's jurisdiction over this action is unopposed by defendant. On December 11, 1984, the matter came before the Court for trial without a jury. On the basis of the pleadings, the testimony, of the witnesses , and review of the evidence received and the arguments made by counsel following the close of the
, evidence, the Court makes these pertinent findings of fact and
. conclusions of law. .
, 1. Findings of Faet ,;;, g , , ,. . , g 3 f,~, ,- ,. ;f,
.A - . - L '- '.".'T.."
- 1. Georgia Power ,; Company, -(',' Georgia Power"), along v'i~th '
oglethorpe Electric Membership Corporation. Municipal Electric Authority of,, Georgia, and the, City of Dalton, Georgia, . owns a nuclear power p,lant, under cons'tructiori in Burke County, Georgia, known as, Alvin W. Vogtle Nuclear Plant Units ., Numbers 1 and 2 , (", Plant Vogtle"). , , ,
- 2. On Octo,ber 21, 1980, plaintiff _
, orked w
as a laborer employed by defendant Walsh Construction Company' at the construction site of Plant Vogtle. _. . .
- 3. ' Geo~rgia Power has promulgated ce'rtain ' rules 6f ' conduct k
and iddery '55r 5he yroje2It.' ' ibese iuleI"a're' Wecepted a' nd' agreed
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iobyeac contractor before the contractor and its employe s are admitted to the job site. '
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4 l "Xmon'g.'the exhibits ' received into evidence 'Fas the Pfant Vogtle Proj ect Agreement, effective March 27, 1974 (Defendant's Exh. 7)', which pirovides that
' [allcoholic beverar,es or narcotics will not be allowed.
Anyone caught drinXing or under the influence of drugs
..or alc,ohol will be terminated and barred from the job.
Id,. at page 22, 1 2. This agreement was amended August 18,,1981, whi.cE amendment did not affect the above rule'. ' 2
. 5. In an___ interoffice memorandum communicated by Georgia Power to all supervisors and on-site contractors at Plant Vogtle, dated August ~1; ' 1980(Plaitittff's Exh. 4), Ge~rgia o Power. issued nevi 96fRE rkle'str"to MW t.4ttictly r~.e%fo8cVd. h*-The'it c ines tGles supercede the General . Work- Rules '-previously issued."
r. Specifically, as .those rules' ielate t'o this case, Georgia Power stated 4 hat .' -
- a - - - w a- - :- - - --- .
-- e 7 _ ,,- - . . . .
(a)1coholic beverages or' narcotics will not be allowed. Anyone caught or suspected of drinking or being under the influence of drugs or alcohol vill be terminated. '
.:.... . r..:. r. . . ~ ..e c r. n .:
18,. ai'Rdle"2.t=Fuf thermor'e ,; n;C- " ~- ' h O rn i t r ' r- : . Cr -". En ~ : Any employee terminated for violation of these work rules will not be hired by any other contractor on the job site for a period of no less than thirty (30) working ~ ~ days. " The seferity 'o f the violation will - ( determine if the em In:. ; site' indefinitely. . .ployee will be barred from the job Id. at Rule 19. -- 6. Also received into evidence were the Rules of Conduct
.. . . . . . . ... ... .. e.
and Safety for General Plant construction and Maintenance Projects, effective January 1,1984 (Defendant's Exh. 9).
*Ihose rules provide that
.. . r. . . .. .. .
[alnyone possessing, under the influence of, or
~
participating in the sales, purchase, or distribution of any narcotics and other controlled substances (except if prescribed by a physician to the person found in possession of the controlled substance or narcotic) on the job. Id. at " Rules of Conduct, CateEory One Violations," "[will be 3
O terminated). and not aligible for.: rehire >:;on..any Georgia . Po,wer 1 Company project governed by these rules.". Jd. at " Penalties for j Category .One Violations /,.for.First Fiolation.?' re. . - n r. verk rules tc b- strie:1v sr. fore 4. Tr,m t. r v. . g
' i r:.:.7.: ,
3.f;
,q then . . General Superintendent of
- 5 -
construction at Plant Vogtle' . for Walsh . Construction . Company, since.0ctober, s 1977, testified that on November 8, 1979, ,_
., Georgia Power Safety,Co-ordinator, informed him that he
~. . .. .. .
.- . ....r.
had witnessed from a dis' tance of approximately 150 yardsk
- ... . . . . . . . . . .:.. : .. .:... . . . . e r=...s. u . ~
of Walsh Construction Company and(. of _ Georgia . Power paasing .shac appeared to be a marijuana cigare'ete between themselves in a washed out area on the Georgia Power
- r. . . .
premises,- . . testified that upon receiving this report,
- - - :.. ::: r :..; . .: :. ., :r.: - tr .:" - .
he ca'11ed
. . to his.cffice- for ques tioning.
According ( I ~ to
.J first' ' denie'd"but later admitted as true the allegations asserted against him by . ,
,- m -
_I
). discharged .
, reportedly for " Violation of job rules [and) agreement." See Plaintiff's Exh. 5, dated November
~~ 8, 1979. No other notstion was made on r - y
. ,- 7 - J termination notice. ,
s.xplained that the discharge
.. *... c:.. .. . . b. ~. . .
notice did not specify violation of a particular work rule
~\
because no evidence was found on proving that he had been smoking marijuana. ..
" ~~y
- 8. { had been e= ployed by Walsh Construction, CompaN[ as a journeyman,* and iyethnicauy identifiable, as white.
4
( terminated), and not eligible" for. rehire v.on ..any Georgia . Power Company project. governed by these rules.". J,d. at " Penalties for f Category ;0ne Viol.ations.,. for.First Yiolation.." r;;.. - ne- verk : cles " tc b- strictiv sn5 creed. *rt,m t, v - r. . r:.. 7.: . ;then General Superintendent of
- s. .
construction at Plant Vogtle' . for. Walsh . Cons truction . Company, since.0ctober,1977, testified that on November 8,1979,
~
. , Georgia Power Safety, Co-ordinator, informed him that he
. . . . r.
had vitnessed from a distance of approxi.mately 150 yards (
. . . . - ... . c. : e :::.;.2 t - -
of Walsh Construction Company and l of 2 - _ Georgia *. Power pa'asing .* hat appeared to be a marijuana cigare'ete between themselves in a washed out area on the Georgia Power
- r. . ,
premis es. -
. ., testified that upon receiving this report.
- - p. - - - - e -- - -
.s ::.:: 1. .: -
he called i . to his-office- for questioning-According
. . . . s. . . , . ... .... ,
(
~~ '~ '
to[-- first denie'd"but later admitted as i- ,- true the allegations asserted 3- -, against him by .. ,i .
$ discharged - -
reportedly for " Violation of job rules (and) agreement." See Tlaintiff's Exh. 5, dated Nov.imber 8, 1979. No other notation was made ( . on ;
, p <- J termination notice. ', .
explained that the discharge
. .s... a.. .. . . ir- . . .
notice did not specify violation of a particular work rule because no evidence was found on proving that he had been smoking marijuana. ..
.:'~ -T
- 8. had been employed by Valsh Construction, Compan' y' as a journeyman,* and ie ethnical.ly identifiable, as white.
4 l
,,.,.9. According to 7 i m
.o b,1c.n,ket hiring call.pa,s placed
, on November ,,9, 1979, to the union supplying laborers to Walsh 1 Construction Company...On..that,_date(~~ , . ,
m]appliedfora l job with defendant i c rs such e. laborer. L
~
3 testified that j the clerk , hire,d T s,, y) notwithstanding the , fact ,that he c
)
.. q .
l had,been,, terminated the previous day for violating the rules. l 1
> .:. .. v.:: :
.- : u . :.: ..e :. . 5 - -
.- t- -
. , 10. {
~] testified.that-there was. .nothing in[f
] file.to indicate that.he should not be . rehired. As found, above at, p,aragraph ,5, _the rules, changed in August, .1,980, to
$1 sallow; 3.he, r.e_h, ire.pt r a discharged . amployee,,yith,in. 30 , days -of terminati.on.., @ e Court notes that ,this rule was not in effect at the time Mr.:Pete,rson was discharged and subsequently. rehired.
.s es..s. -r -- -
* :. -fi.- - -- -
e- -- ( :: :31. , .On a la t er ,da te , I 7 pa,s_, dis, charge,d,, for poor 6 - work performance. - 3.., . 12.,.On October 21, 1980, plaintiff was ecployed as a laborer with defendant Walsh Construction Coczyany at ; Plant Vogtle. Plaintiff concedes that he was subject to Georgia. Power's work rules in effect on that date.
- 13. As plaintiff was exiting from the work site on that date, a Georgia Power security guard, in the course of conducting a routine lunch box search, observed a clear plastic bag in plaintiff's lunch box.
This bag contained a leafy material which the security guard suspected to be marijuana. This security 5
7 guard asked plaintiff to remove the bag, which plaintiff did,
, handing it to the guard. The s'ard notified the Burke County Sheriff's office of the incident, and the suspected material was turned over to the Burke County investigator. The guard also notified in bis capacity as General Superintendent of Walsh Construction Company." .
~
- 14. Plaintiff was discharged from his job with Walsh Construction Company on October 22,1980.( issued him a termination not, ice, ubich stated that the reason for his discharge was "!plossession of marijuana on job site. Not for rehire."
- 15. The Georgia Bureau of Investigation Crime Laboratory issued an official report on December 8, 1980, confirming that the substance taken irom plaintiff on October 21, 1980 was marijuana (less than 1 ounce, specifically 7.3 grams).
(Plaintiff's Exh. 8). i "
- 16. The no ta. tion "(nlot .for rehire" inscribed on his termination notice effectively has served to bar plaintiff fron the Plant Vogtle premises. Plaintiff has not been rehired by any contractor on the site since his October 22, 1980 discharge.
~
- 17. explained that when a discharged employee is qualified as "[nlot for rehire," a card is placed in his job file to flag a hiring clerk's attention, signalling to such clerk that 6
,',.a job application is not to be issued ' to- the~ requesting individual.
- . ; c. . .: ..
. . . . .. .. r . .. . . . . . . . .... .. . . . . - . .
18; Tollowisi $Yi..disth'arge and', denials ' for reapplication, plaintiff filed a efsel'y charge aga' inst defendant with the Equal 3 l Employment Opportunity Commission ("EEOC"), asserting employment
, discr4=4= tion on the basis of race. Plaintiff is ethnically identifiable as black /"'
12 ~* " ~ " ' ' '
~ ~
"19. Plaintiff received a' determination' letter from the EEOC on- March' 16; 1982. ' Plaintiff's Exh. ' 2 r ^ That letter' recites the two incidents of job termination described in the above findings made by this Court. By that letter, the EEOC informed plaintiff to beliive that there wa s' reasonable cause tnt his ch'arge k nigainst-defendantwasvalid;
' - - " - -- " * '7 - -"- "-
~
- 20. Plaintiff filed this action pursuant to that EEOC determination. Jurisdiction of this Court is unopposed.
7
- 21. . testified that he knows in his capacity as project manager for Walsh Construction Company at Plant Vogtle that since plaintif f 's discharge from the site, approximately ninety (90) other employees have been terminated for drug-related reasons, and these employees have not been reinstated.
. 7 ___ __ _____ - ___ _ _ f
.. II. The Law and Analysis -
The issue to be decided by this Court is whether defendant by its actions discriminated against plaintiff on account of his race, in violation of Title'VI,J of the Civil Rights Act of 1964, as amended, 42 U.S.C. I 2000e,Ig,. s e a'. In considering this question, the Court first notes that
" Title VII is not a shield against harsh treatment at the workplace." Jackson v. City of Kileen, 654 F.2d'1181, 1186 (5th !
1 Cir. 1981). "Nor does the statute require the employer to have good cause for his decisions. The employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no, reason at all, as long as its action is not for a discriminating reason." Nix v. WLCY Radio /Rahall k Communications, 738 F.2d 1181, 1187 (11th Cir. 1984) (citing Merill v. Board of Regents, 541 F.2d 1073, 1077 (5th Cir. 1976): Sullivan v. Boorstin , 484 F. Supp. 836, 842 (D.D.C. 1980)). Essentially, plaintiff's sole contention is that he is black, P
]is s
white, and 7 was treated better, in that be was rehired after being discharged. Implicit in this argument is plaintiff's belief that he and were
- .6 si=ilarly situated employees. However, the Court finds that the evidence does not support this prec.ise. '
First,' while plaintiff was caught in possession of a suspected substance, was observed from 150 . yards engaging in a suspected activity. No marijuana was found on e M ' person; rather, his termination resulted from his 8
~
odmiss_ien__.that, he had,,scoked sco2 marijuana, not from proof that
. ' ' he had engaged in such activity. Nor is there any evidence that such activity influanced his behavior. Clearly,'there was better avidance.:.available ::t:cr.Lprosacute a . case.:.sgsinst plaintiff than againsty~
I . i I
- . Secondly, the Court notes that the work rules promulgated by Georgia Power .were reissued on August 1, 1.9.80, "to be '
. strictly enforced." These new rules followed;F-u s; initial determination, but,yrec_eded and ,therefore were in effect at the time of plaintif,f's discharge.. .The .new .. rules added a charge of .
ysuspic.i.on"::.to :..the :. previous ' requirement of direct- e.vidence against an employee. Moreover, the new rules specified that violation of the work rules could result in a discharged employee being indefinitely barred from ._.the work .' site. . The,_ Court ( spec,ulates: that under the rules..in effect . at .the time .of Pl aintiff',s,, discharge, 7 would have qualified for the same . a c t_ ion tak_en_,agains t plaintiff, who was permanently barred from the premises. However, because the work rules in effect at the times of initial discharge of these two employees were different, the two situations are not comparable. r
. .. Accordi.ngly , the Court concludes that plaintiff and g ,
are not "similarly situated" individuals for purposes of Title VII. Consequently, the different treatment each w a's accorded by defendant does not support a judgment for plaintiff, merely because he is black. Se.e Nix, 738 T.2d at 1187. Rather, review of the exhibits and defendant's actions with regard to these two individuals demonstrates to this Court an evolution in 9
l
. .- .the . policy . conceived and enforcod. by Georgia Power to maintain
. safety at a nuclear power plant under construction. . ; ... .
..- Specifically, the Court s reasons that: .as a .-nuclear power fasikigy grows;.sipser tesempletionrrthe zeecurity- af .the-system peepssarily .becomes more burdynsome, and that security and the responsibility for. .maintainirig .it . falls . most . heavily on the persons currently located on the site. . Yearly institution of. new work w ies to preserve control and prevent accidents should be anticipated I by anyone who chooses to .vork. at; :,the .-s i t e .
Compliance . with', such rules , in this Court's opinion, should be , libsrally.. interpreted and strictly . enforced. See. Nix , supra,.at 1187.. ('! Title VII does not take away an employer's. right to { intarpret its rules as it chooses, an'd to make determinations as it sees fit under those rules.").: Even- the . suspected use of ( drugs that may affect acuity, reflexes , . sr. . coordination, should be absolutely and forever barred, which policy justifies the express penalty currently in effect at the facility.
"The ' factual inquiry' in a Title VII case is '[whether) the
_ defendant intentionally discriminated against the plaintiff ,'" United States Postal Service Board of Governors v. Aikens, 460 U.S. 711 (1983) (citing Texas Department of Cocznunity Affairs v. Burdine, 450 U.S. 248, 253 (1981)). "In other words , is 'the ecployer ... treating sece people less favorably than others because of. their race, color, religion, sex, or national origin.'" Aikens, supra, at 715, (citing Turneo Construction Corp. v. Waters, 438 U.S. 567, 577 (1978), quoting Teamsters v. United States, 431 U.S. 324, 335, n.15 (1977)). The Court finds 10 I
. [ .. aftor reviewing the evidsnce received'and titstimony given'in this
~ '
ma,tter that plaintiff has failed'to "pr6duci ev' dence i establishing a prima facia case of " ' dis'driminat'ory ' intent (- therefore,
,,m s -. .
. . i d ... . i..... erat on of this ca..se un.'de.r...th.. eTitle N. ... .II'stan
.cons ,. ,. dard "o'f r,,ev. . ..iew declare'd fn Burdine, s'u p r a , is unnece'ssary.
5 iith v. State of
~ ~ ~
. t Ceo~rili!; No.3%3-8753, ;sifp 'op.' at"i385 (11th 'C'ir. ja5".' T, i985i'.
111., .Conclu~sion
' '~
~
Fo. . . .reth. . . reasons stated, . the Court. must find in favor of deferidant
~
'and against plaintiff. This action- is E er~eby h dismissed, on the merits. The parties are instructed to pay thei...r own costs. -
SO ORDERED, this /8 Y da ' y "of Januafy , 19'85~. #" ' " - ( JUDGE, UN1IED STA' 5 ~DATRICI COURT A SOUTHERN DIS CT OF GEORGIA
. l 11
~ _
ev J t . e :, s@% INTERNATIONAL BROTHERHOOD of paintcts and Hilled Trades PHoNc 4o4 7 4. a i s , l February 21, 1985 Chester L. Davidson, F. S. j and Business Representive I 1 n1 1.msu. se . Augusta, Georgia-30902 Willies contracting Company Mr. Art Bell P. O. Box 282 Waynesboro, Georgia 30830
Dear sir:
b Enclosed plasse find letters of grievance from
- w -
and Trusting that you will give this matter your earliest atten-tion, I remain
-- Stacerely yo yg Oe,as Chestar L. Davicson F. 8. and B. R.
CLD:ab opeiu #21 aft-cio one. 3 Crievances cci Personal File GPC Labor Representative. Jim teve, Painters' Int'l Rapt. Virgil Williams, ownse of Williams conta. I
~
g od v,m d M ed in accordance with the freedom of Information tet, exemptions b E0]A: 87~TO b## e
/ /
Y i
)
February 1,1985 i TO W10H IT MAY CONCE.RN: ley foreman come and got me of the off the job and told me to wait in Room
~ ~
127. . were brought in, an(- , people were told they had the option to work or 30 home about one-half earlier. I asked ,
)what was going on, he turned to ,
and asked if he was goint to go home,( le f t, the ]toldme,
- ~
that we had been called in for a drug test. I learned later that also knew that Be
]. bad been called in too.
was given the opportunity to leave, he had to take the test the next day, and the day af ter because they said the machine had to be recalibrates. ( and I went and took the test, we were sent back to the Bole. At 5:45, they came and got us, said they wanted us at the safety trailer when we got there they said, we had a small amount er tracer of canniboid in our sample, at that point I knew something was not right, becessa I know that I don't fool around with drugs of any type, so I refused their test as Esnana Eospital. I went to the University Hospital and paid $115.00 for a test, and had it witnessed by a doctor, the results were negative. I' L ' I l l 1 _ - - - _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ __ _ _ A
I i . February 1.1985 to W10M 11 MAY CONCE30f. I r While at work at Plant Togtle 1, l i was asked to take a drug { test. I was told by here wu a phone call saying thei
, and was smoking depe at DeLa13 1s's 8 tere. This was stated by a grudge call to Williams Contracting, Inc.
I took the test at Flant Vogtle for drugs and it was not positive. After j this I was told I was going to have to go to Emmana Bospitsi for another drug test and I refused to 30 so I was fired for this. go this was on February 1,1985. v ( On February 2,1985, I,( sad we requested Chester L. Davideos, Business Representative ad we west to the bespital for masth- l er drug test. and took a witnessed urine test for drugs and it came out clean no drugs. e t- a i I {
\
. ==
- - - 9
/ ,
t e .
.J V N 2 1 r25 -Q. I A
s h INTERNATIONAL BROTHERHOOD of [dainters and 91 lied t rades PHONE 404 724 2168
, , , , , , ,, Chester L. Davidson June 19, 1985 F. S. and 3. A.
1251 key Augusta, Ga.-30902 Williams Contracting, Inc. Mr. Tom HeDowell, Labor Relations Rept. 2076 West Park Place Stone Mountain, Ga. 30087
Dear Sir:
I as v-iting you this letter in reference to two grievances that was filed { r .-, ,-- in February,1985 in behalf of members, and These
- A _ s grievances were sent to Mr. Art asil, Plant Manager at Vogtle Nuclear Plant toested in krke County.
It was said to me in front of my Steward, that he, art Bell would answer my
- grievance for these man. Since all of this has taken place Mr. Art Bell is no longer at Plant Vogtle, and these grievances have not been answered on the said and I am asking Williams Contrasting , Inc.
i
'y l
L that these two men, and put back to work as early as 6-21-85 wish back pay. I am looking for a quick reply on said grievances. 1 I feel these men were not treated properly because they asked to be given an-other test the very next day, and was turned down by the said They also asked Georgia Power Safety and the people that also gives the test. Informatiori in this record was deleted in accordarice with the Freedom of Infor Act, exem tions: fo F0IA. f -90 p/f
.g.
,. I went to University Hospital with and the very next day to take the union test for drugs. The results came back and they were negative. A copy of there tests were sent to Georgia Power and also a copy went to Mr. Art Bell.
I would appreciate a reply as aoon as possible. Sincerely yours, GL U On> Chester L. Davidson F. S. and 3. A. CIA:ab opeiu f21 aft cie, cc: James Inve, Faiators' Int'l Rept. Dale Cockrill, GPC Labor Rept. Virgil Williams, owner of Williams Contr. Inc. ( Frank Turnar, Attorney for Williams Contr. Inc. W l
NUCLEAR REGULATORY COMMISSION' ASSESSMENT V0GTLE FITNESS FOR DUTY PROGRAM LEGAL ISSUES ' SEPTEMBER 15, 1986 l FITNESS FOR DUTY - ANSI STANDARDS SI6NIFICANT LEGAL QUESTIONS l ARBITRATION - 1982
- J.
VS. WALSH CONSTRUCTION COMPANY - 1984 ACLU SOLICITATIONS ( .
)UU( ..._}/S. GEORGI A POWER COMPANY - 1985 '
) VS PULLMAN POWER PRODUCTS AND GEORGlA POWER COMPANY - 1985
. . . _ . . _ . . . _ __ VS. PULLMAN POWER PRODUCTS ~
AND GEORGIA POWER COMPANY - 1985
/ y VS. WILLIAMS CONTRACTING -
7 985 i Information in this record was de.eed l
- in accordance with tfje freedom of Ir.fctmation Act, exemptions O F01A f 7- 9 0 64 f
l 4}}