ML20237G083
| ML20237G083 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 08/11/1987 |
| From: | NRC |
| To: | |
| Shared Package | |
| ML20237G045 | List: |
| References | |
| FOIA-87-90, FOIA-87-A-52 NUDOCS 8708130303 | |
| Download: ML20237G083 (32) | |
Text
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D0L Complaint by 5 Former Vogtle Employees
- l 1/16/85 (SteveMcNa1 an electrical quality control inspecto , was discharged for refusing to submit to a drug urinalysis.
1/24/85[SusanTillerRegiste],aMechanicalDivisionemployee,wasdischarged for insubordination, excessive absenteeism, and unsa isfactory job !
performance. %,
2/5/85 (Leslie Prich h civil quality centrol nspector],wasdischargedfor misconduct and violation of work rules i
2/27/85 bamesRegiste],(aSurveyDepartmentemploye}wasdischargedforfailing
'to pass a drug urinalysis.
3/1/85 , Billy Weatherfor a Survey and Mechanical Section employeh, was l
ischarged for refusing to submit to a drug urinalysis.
i 5/13/85 All five former employees submitted a complaint with the Department of j Labor (DOL) alleging retaliation by Georgia Power Company (GPC) for '
having engaged in protected activities.
7/10/85 All five complaints were dismissed by D0L 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.
l 8/20/85 A DOL hearing was held in Augusta, Georgia to determine if the 30 day
, limitation for filing of complaints had been tolled due to a) Failure I l of GPC to post NRC Form 3 or b) the former employee's oral communications to an official of the NRC (Bruno Uryc). l 1/24/86 The D0L Administration Law Judge (ALJ) issued a recommended decision to the Secretary of Labor which dismissed the complaints because the i 30 day time limit had not been met. The ALJ found that GPC had l l
properly posted NRC Fonn 3. The fact that the 8/82 version rather I than the 9/84 version was posted was dismissed by the ALJ as not mattering since the former employees denied ever having seen the 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.
Vryc was not aware they were complaining of discrimination, and that the two faJled to respond to a summation of their complaints sent to them by Mr. Uryc on February 26, 1985.
l 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.
8708130303 870811 PDR FOIA BAUMANB7-A-52 PDR -
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f In the Matter of Arbitration Between '
Georgia Fewer Company e Vogtle Nuclear Project Const ruction . OPJNION e l and ,
AND Local Union No. 424. International AWARD Union of Operating Engineers, '
AFL-CIO. '
AAA Ash Case No. 36-30-0251-81
- ames C. Cook l August 12,1982 e rievance
)
._______________i________________
l AR BITR ATOR:
1 Thomas J. McDermott was selected as the neutral arbitrator for this arbitration in accordance with the procedures of the American Arbitration Association. j l
APPE AR ANCES: I l
%e hearing for this arbitration was conducted in the conference room on the 4 i
k Vogtle Nodear Project construction site, Burke County, Georgia, on Apru 28, 1982.
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%e receipt of the transcript and the filias of post-hearing briefs were completed i 1
on August 4,1982. At the hearing the representatives for the parties were as foDows:
l~ For the Union WaDace D. Brannon Int einstional R e pr es ent ative,1.U.O.E.
Hubert Keen Business Manager, Loca!
474,I.U.O.E.
Wald Howard ____ Asst. Business Agent
' Grievant Ta = = > C. Cook J r.
A EnL_*h e company Char!cs W. Whitney, Esag.
Troutman, Sanders, Lockerman-a Ashmore Attorney Harry H. Gregory III construction Project l Manager Ga. Power Co.
I Vogt!c Project L. Toen Garner Supervisor Safety, Labor R elations fWb D0 ela.
I. i s ..
Frederick R. McCarty Freitet Manager Walsh I Construction Co.
Edwin D. Groovet Quality Assurance Site !
Superviser !
John L. Mercer Investigator '
Capt. Wm. E. Johnson. L. Johnsor Richmond County Sheriff's Dept. Witness yME GRIEVAN CE i
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he grie vance oil ames C. Cook, Jr$ was filed on November ly, Ital. I l states the followings l ,
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Mr. Coo Secu(rsty for druga]k was arrest removed from th job by Ga. Powe 2/13/81.
betred from Ga. Power Project.@dr. CooObas
- r. Cook] arrest (ed) on bece
, the job, but his sale of narcotics was not joW related.
BACKGROUND j j
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ns grievance arose at the construction site of the Alvin W. Watle Nuclear Project, Unit 1 and 2, which is located in Burke County, Georgia, near Augusta, Ga. ;
1 The plant, when completed, will consist of two 1100 megawatt units with two l 1
. pressurized water reactors designed by Westinghouse. %c Georgia Power, Company, i
who is the owner of the plant, la also.,the General contractor for the er. tire construction project. Initial construction began in 1974. Shortly there af ter, the pr oje ct was shut do wn. In 19 77, it restarted, and the first unit is due to come on I line in the Spring of 1987, while the second unit is due to be on line in the Fall of 19ss. Our the construction period approximately 30 contractors will be involved. At the time of the arbitratiers there were approximately 8000 persons employed on the ,
project, of whom around 350 are employees of Georgia Power Comp.any.
In 1974, the Company, on behalf of itself and its contractors aed sub-const: actors, signed a Project Agre ement with the International and Local Unions l
I . i affiliated trith the steilding and Constructlan Trancs Department AFL-CIO and th.
. General Teamsters. Operating Engineers Local 474 was one of the signators ,
Contained in that agreement are the fo!!owing provisions, which are applicable to thi.
cases j i
AR11CLE 4 B eferral af Men
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(1)..... A ppli c a n t s for the classifications of l journeymen, apprentice or trainee, and helper required by.-
the Employer on said construction project, shall be 3 referred to the Employer by the Unions. The Employer I shall have the right to reject any applicant referred by !
the Unions
. These general work eules for Flant Alvin W. Vogtle Nuc! car System will become part of this agreement.
(2). Alcoholic beverages or narcotics wi!! not be i
I allowed. Anyone caug'ht drinking or under the influence i of drugs or alcohol will be terminated and barred from the job.
(8). Any employee terminated for violation of thesc ;
work rules will not be hired by any other contractor' en '
job site l
In addition, in .the General Work Rules promulgated by the Company, dated August 1,1980, rule 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 site for a period of no less than thirty 00) working days.
Severity of the violation will determine if the employee will be barred from the job indefinitely.
The Union involved in this' grie vance is 1.o c al Ucio r, nu c.b e r 4 7 4 of the
' lat e rnstisnal Unior i Operating Engineers, AFL-C) which is one of the signaters e:
tbc Project Agisement. It la the bar g aining r epr esent at!ve for appresimately 4:
Ingiacers employed on the construction site by four contractors. The Crisvant, f James Cook, ' began his employment as a Crane Operator with Walsh Constructi-Company in February,1980. He has been a member of Local 474 for about fi ye ars.
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%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 prob!ca involving the construction site. Contact was made with tl Burke County sheriff's Department and the Georgia Bureau of Investigation. 71 Company obtained the services of an undercover investigator, who was deputized 1 '
the Burke County sheriff's Departament. He sought and obtained a job with Wals Constructi,on Company, first as a Cement Finisher ,and later was placed in the To t shed. His work on the site began en August 18,1980, and it was to be terminate es January 30, 1931. He investigation was to be culminated en February 13, its-with the arrest of 15 employees of various contractors. Of the 15, twelve arrest were based upon the evidence supplied by the company's undercover investigsto: {
Among them was the Grievant,{Mr. Cook], who was arrested en two counts of sellin.
marijuana.-
1 Subsequently, the Grievant, along with 12 other employees of Walsh Constructic Company, were terminated by that Company. We notation placed en their terminatio slips was "not for rehire". In a letter, dated April's,1981, to Business Manager Xee of Local 474, the Construction Project Manager for Georgia Power Companyg Mr !
Gillespie, stated t'es following, as it related to the Grievant and another Enginte:
who had be,en fired by the Walsh Company:
. . . .I n vie w of the sensitive 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 nuclear plant is built saf ely and
effici. 1 r, Georgia owe to allo g) Messrs. no longer willing
' Cook or@r Company *sr[to rets.o to its prop with their arrest on criminal charges have beca s In the lateria, please do not refer either person to any I contractors who are working at this site.
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l However,(Mr. Cook]did return to work on the project site
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Following hi dhcharge by Walsh Construction Company, the Grievset was hire asis s an Operator / Oiler by Sims Crane Service, a cranc-rental firm. On September 2:
1983, he was dispatched by the firm's Augusta rental office to the Kelly ewaterin Company, which had a contract to instaD a dewatering system c Plant.
at the Vo
. Lorsia Rough Terrain Crane and operator were rented by Kelly for w project.
When(Cook ,
arrived on the job, he was given a temporary security bd a ge, and h worked as an employee of Sims on the Kc!!y pteject from September 23 d r to Novembe ti1981.
According to Company witnesses, they were unaware that he was w orking c:
the construction site.
Shortly before November 9th, Management was contacted b; another employee, who had been barred from the project, and he comp ned about the fact that Cook was working on the site.
At about the same time, 1--
. Cook was given at opportunity to work directly for Kelly Dewatering, and he applied
- for a permanen:
security badge.
Georgia Power Company contacted r Keu Dewstering and d5c e Contractor to remove him, as he was barred from the project site .
That action gave the to the filing of the grievance.
The Grie vant's involve ment in the drug-bust incidents developed out of the contacts he had with the Company's undercover agents Mr. Merces .
According to the latter, around a week prior to Ncvember .7,1980, he met the Grievant f or the fL si time, and in the conversation he had with him, he stated th buying some at he was interested h drugs, and he asked him if he knew where there was some he c ould bur.
I told him that he did not have any at that time, but that he would let hin know Cee A
when he could get some.
On the af ternoon of Novembet y,1930, the Grievant approached Mercer in the Tool shed and told him that he had some good pot. He wanted to know if MerEar was interested in buying some. De latter said that he would like to buy a bag, in order to try it out. (CoE then stated that, if he would go to his house after work, he would sell him a bag of pot.
n at night around p:00 P.M., abe Investigator went to the Grievant's trader home, and he was brought into the latter's bedroom, J Cook] pulled out a large plastic bag containing approximately one pound of marijuana. He mentioned that he did not have a scale, but that he would pull out what he estimated to be an ounce. If it 1 came up short in weight, the Investigator was told to let Cook)know, and he would l make is up, ne marijuana was put in a smaller bag, and Mercer paid { Coo 735.00.
At the same time, he asked Cook}about the possibilit'y of getting a quarter or a
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pound.
- cook told him he would let his know. Subsequently, the substance that was purchased by the Investigator was subject to a laboratory analysis, and it was founc to be less than 1 ounce (11.9 grams) of marijuana.
A week later, en November 14, 1980, around 10:00 A.M, the two met sgsin is the Tool Shed, an(Cook told the agent he had a quarter of a pound and a5ked,
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was interested in buying it. Mercer said he was and they arranged te mcet in the Walsh Construction parking lot. %c Investigator went to his car, while Cook walies to his motorcycle, lif ted the se at and took out a plastic bag of marijuana. H brought the bag over to, Mercer's car, got inside and handed it to him. He the:
suggested that they drive to a convenience store off the project site for lunch. A that location, Mercer paid Cook , 1120.00 in cash for the purchased substana. Th later laboratory report confirmed that it was marijuana with a weight of 3.1 ounces.
ne Grie vant's t estimony relative to these tr ans actions dif f e re d f r e e t h
testionar of the in stigster. According to[ Coo $ .;he knew. Mercer for above als months prior to the first transaction, and that they socialised frequently. His initial testimony was that sometime before the first transaction Mercer came to him and told his he was going to Macon to see his mother in the hospital that he was new in town and did not know anyone who would have any drugs. He then stated that Mercer ,
asked him if he could find any. Cook} stated that his answer was that he would it est, and that Georgia Fower was full of dope dealers, so that all you had to do ws: se eut and look.
[ Coo then stated that a couple of weeks later he found some dope in town, and he %ught what he wanted and came and sold is to him for what he paid for it".
The delivery was made in his trailer, and he admitted it was from a larger bag, but l his clate was that it was met his, but a friend's. He alas claimed that he told '
' Mercer,he was not making any money from the transaction, and that, Mercer .said 'You
. . r; are a real friend to do that". His further testimony was that, Mercer.l paid for it with
( a che ck, which later bounced. However,'.at a. subsequent date he got his money from Mercer.
With respect to the November 14, 1980, incident, his initial testimony only l related to the November 7th sale. Also, he denied that he admitted to Captai.e
- Jeheses that he made other sales. On further examination he admitted to the .
. e-November 14th sale. His testimony was thad Mercer approached him a week er twe after the first sale and told him the pot be got was real good. He also asked him te get some more. He then stated that he got the pot from the boy and paid 7110 for it. When he told. Mercer &c had it, the latter asked him to bring it out to the projeet. At 1 ch tisce, he got the marijuana out of his notorcyc!c, and whcn' Merce:
started to look at it,{ Cook suggested that they drive to the convenience store.,
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After his arrest, and on the advice of his attorney, he pleaded guilty to the sale of less than an ounce of marijuana. His sentence was 's 11,000 fine and 4 year l
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prob a tios. on Nove, ses !!,1981, he prepared an( igned a statement la which bc related only to the first instance of selling the marijuana. % st at esnent aise claimed that about a month aftet the sale,, Mercer. approached him at work, identified himsc!f as as nodcrcever escot, and told him he,, Cook,]was in big trouble, and that he would I
get him off the book, if he would help him bust more peopic. The effer was refused by the Grievant, because he belicved it to be wrong to get someone's friendship and then bust them.
Investigster Mercer denied using a check to pay for the marijuana, and he denied l he ever told the Grievant he would get him off, and that he was an undercover agent, !
l because that would have endangered his life and the investigation. He further denied
. that they seeinlised frequently, and he stated that he met the Grievant only :
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relatively short time before the fics: drug transaction. )
POSITIONS OF THE P ARTIES
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The basic Company position is that the right to har certain people from its property is an inherent right of management, which it has sever relinquished in i
negotiations with any Unions. It aise relics upon Artic! IV, Paragraph (1) of the j i
project Agreement, which gives to Georgia Fewer Company the right te reject any
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applicant referred to it by a Union. This, the Company atstes, is what it did in the case of Mr. Cook,Jand it is this rejcetion that the Union is se eking to crase. ' 7"r.u s ,
the Unies new seeks to gain is arbitration what it volunt arily g ave away in 3 i
ne gotiations.
The Company stresses its right to promulgate and enforce reasonabic work ru'es, and it stresses tha:Jss policy relative to drugs is a very reasonable one. It holds that the as: er sale of drugs by plant employees would detrimentally affect the safety and efficiency of construction ope ratic*ns f or obvious re asons. In support of tFis
cost sstirn, it cites not only the testimany cf Compai., witnesses, but also that cf the Union's Business Manager. In the Grievant's case, his employer Walsh Construction 4 Company, was particularly concerned, because he was operating a tower cranc, 'an estremely large, important and potential!y dangerous piece of equipment". The 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 !
{
impair the efficiency of construction. >
With respect to spe cific violations by the Grievant, the Company points to the Grievant's admission of having possession of over a quarter pound of marijuana on the dat mere possession of drugs was justification for his discharge by Walsh l sit e.
Construction Company. Barring him from the job site, which is a less drastic step, is !
certainly justified. It further cites the two sa!cs of drugs made by the Grievant, and to his admissions to the Police Captain, who gave him his polygraph examination, that he had admitted he used Quaaludes, speed, pot and cocaine.
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FinsIly, the iCompany stresses the fact that the Flant Vogtle project involves the construction of a nucicar power plant. As a result, the dangers that are present, when workers use drugs, are particularly acute when the work involves that kind of ,
i construction work. Not only are the possible accidents a f actor, but employees ander
.. the inDuence of drugs may perform poor work, which may Icave hidden and fatal Daws j in construction, which may cause a disaster months or even years later.
1bc Company further refers to the responsibilities that the Company has to the Nac! car Regulatory Commission. That agency is very concerned with the impact of I l
drug abuse at a nuc!c ar plant on the safety of both the workers and the public. le
's upport of this contentioc, it cites reports of concern with drug use in several atomic energy plants in the country. .
Fina!!y, the Company bolds that public opinion must be satisfied that there are no d:cp at Plant Vogtle. Particularly, is it concerned that the belief that there is
decg probleo cas giv. semunitism to public interes poups like Georgians Assims
- i Nucleat Energy. Actions by hostile public interest groups can wreak significant havoc !
with a construction schedule. )
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he Union posities is that the Grievant in this case was met a drug dealer, sr the Ceapany charges. It agrees that Mr. Ceek- ,mide as error la judgment, but it L. )
contends that it should not be a basis for barring him from the construction site. )
De Union contends that la the presentation of the case, there was not enc ahred of evidence that would indicate that the Grievant ever used or was under the kalluence of drugs en the job. It ca!!s attention 'to the testimony of the Welsh Construction Company's Project Manager, who' stated that he had never received any complaint from Mr. Cook supervisor concerning his job performance er dependability.
%st, it states, is not the pattern el a user of drugs.
De Union further argues that the Grievant was saatuvered into the two sale situations by Investigster Mercer. It charges that the latter's intent was to get esa iste such a situaties where he would have se assist him in his investigation by turning l( -
is pushers.
ne Unios also charges that the company is more concerned with making an esseple of the Grievant. It calla attention se the fact that Mr. Cook went back to i
work en the project, and,lr was only after a disgrootled employee, who also*had been !
I barred, complained about{ Cook'sjyresence, that the latter wa's then barred.
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DISCtfSS10N AND FINDINGS :
i i agree that this is not a discharge case. but a matter of barring the ne part es person from employecat en the Vogtle property. %erefore, this action does not J forestall the contracting employer from rchiring the Grievant and using hic en construction projects for other customers.
Uader Article ', Paragraph (1) of the Projr Agreemeze the Georgia Potn
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Company does have "the alght to select any 8pplicant referred by the Unions". %Is right to refuse to accept pe rsons for employment, who have _been referred to the Company by a Union, clearly gives to the Company the righ8 to bar a potentia!
employee from its property. However, as the Company has acknowledged, this right tc bar an employee from its property is not a right, which may be exercised arbitraru r, capriciously or discriminatorDr. %cre must caist a seasonable basis for such action.
%e Project ' Agreement between the parties also contains a set of general work rules. Rule Number 2 states that alcoholic beverages er narcotics will not be aBowed. Although it does not specifically 'use the words 'en the Plant Vog tle construction project", thsre is no other meaning that can be attached to the citec sent en c e. %ss, there is an agreed to rule between ' the parties which c!c ar!;
encompasse,s the forbidding of the possession of heverages er narcotics on the Plant Vestle site.
- Rule 2 also seates that "anyone csught drinking or under the inDuence of drugs oc alcohol will be terminated and barred from the job". %Is work ru!c does not specifically mention the selling of alcohol or drugs to feDow employees, who may use such on the work site. 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
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moder the inDuence of the drugs on their jobs, would have f ar more pcTential foi injury to property and persons, than a single employee, who has been drinking o:
taking drugs. %c latter's potential for injury, as great as it may be, is nevertheless:
limited to his own area of work. The person selling, on the other hand, must accep-responsibility for all possible employees, to whom he may provide the drugs, and he most share responsibility for any or all potential injury, which may occur.
Rule Number a provides in part _ that "any employee te rminat ed for violation o these work rules will not be hired by any other contr a ctor on job site. T'..us O
me e me
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eff ect eschenged . e four cunce has in the parki,
' lot, althsugh the msnry was ne eschanged until after the two had ! cit the constructies proje ct. The f act the threagh the ples bargata that sale was dropped from the legal charges decs a.: esk the infracties any less real.
The Union's cententies that Investigster Mercer paneuvered the two transactier se as te get the Grievant to help him with his investigates is only based om F Grievant's claim that Merce jteld him he was an undercover man, and asked him help him. The entire conversaties was denied by Mercer, and his caplanation'ei wh j he would never disc!sse his identity as an undercever agent was mest plausib!c. !
.l De Union aise stresses that there is no evidence se prove the Grievant eve l
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used er had been under the influence of drugs on the job. However, Lere are th: l
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admissions made by the Grievant to Investigster Mercer and;raptala Johnson. Te th former, he, told of taking speed on one day on the job, and to the latter, he admitte l that in the past he had used quaaludes, speed, yet and cocaine. While there is n
(\ e'vidence that the Grievant is an addict, this testimony is just one mere facter i i 1
support of the barring acties. It is mere support for why the Grievant should not b given special treatment, while other former emplerees ramals barred.
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%us, we have an employes, who admitted selling drugs to a fe!!ow employee . l
_ two occasions. He may set be a regular dealer in drugs, but there is as war e ;
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knowing how' many other sales he may have made to other employees. He was' foun guilty of selling drugs, and he was discharged by his employer, Walsh Constructive .
Company. He grievance was filed against that dis ch a r g e. The Georgia Pew e i
(_ :
Company acted withis its right, when it barred Ceek along with the other convicic' ,
% o employees from the construction project. The fact that Cee was able to work fe snether centr acter en the site for a period of several wuks, without Management' ;
, knowledge, did not minimize er revoke its right to bar him from its property. Tner did esist a reasonable basis for the Company action.
a AWARD It is therefore my award that the grievance be denied. p/
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\
homas J. McDermott Arbitrator .
1 Given at San Antonio, Tczas, this 12th day of ' August, 1982,
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WDGMENT IN A CIVIL CAS" o<sraict .5004aERN DISTRICT OF EEORGIA jfriffeb $tates pistr,ict Court AUcusu DmsloH c.a ,,a ce:=v v .sa M I*
CT184-084 Y'
, wanna or amos on anasistmatt BALSE CONSRDCTICBT CGPANY,- e division of GUT F. ATED$CE CD. 8..AYANI EDENTI2LD O Jury Verdict. This action came before the Court and a jury with the judicial officer named above presiding.
The issues have been tried and the jury has rendered its verdict.
?- <
A Decision by Court. This action came no trial oe6macogcbefore the Court with the judge $msgicamuna4 named above presiding. The issues hwe been tried an:hnsuiand a decision has been rendered.
IT IS ORDERED AND ADJUDGED that in accordance with such decision, rendered on the 10th day of January,1985, JUDGdDT is hereby entered in favor of 'the defendant, WALSE CONSTRUCT 70N COMPANY and against the plaintiff. ALBERT T. LEONARD. L The complaint stands dismissed and the parties are instructed to pay their own costs.
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cuca carc RENRY R. CRUMLEY, JR.
JANUARY 10, 1981 uviosm.rrycuaa
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- .S. DI.SI.T0g 4.,3,.g. .g g.j-
.u... 1N THE .. '11NITED STATES-~ DISTRICT ~ COURT 70R THE - ~--'
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SOUTHERN DISTRICT OF GEORGIA
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A1.BERT,T... LEONARD,
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$ r..- ; .; . vs . e: :-- . . s : u . .c ==:m3:m:.. .: : ;;.CV18 4 - 084 . . :. : _ .::- - -
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. . . -) - . . - - e~-*---- '
WALSH CONSTRUCTION COMPANT, . )
, a Division of Guy F. Atkinson ')
-- Company,- a~Nefsda Cciirp6 ration,~ ) ~~ ~~ ~ * ~ ' ~ " ~ ~ -"-- - '
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' ; - : < -- iv' ORDER
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.~.. ti~ Plaintiff ; Albert T. Leonard,]vho 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, sec., otherwise known as Title VII of the Civil Rights Ac4 of i 1964, as amended. The Court's jurisdiction over this actiori is unopposed by defendant.
On December 11, 1984, the matter cane 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. .
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- 1. Findings of Faet,,..;, , n , ,.. ;,;. g . 7,, f., .:,
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.W ;H K *.- : .' ? : -' .
- 1. Georgia Power j Company, -(','Ge'orgia Power"), along v'i'th - .
. 1 Oglethorpe Electric Membership Corpor'acion, Municipal Electric 1
i
, A..utho..r. it.y _o.f. . G..e. .orgia , and the, City of Dalton, Georgia, . owns a nuclear power plant,,un, der cons'i:ructioti in Burke County, Georgis, i
known as, Alvin W. Vogtle Nuclear Plant Units..,N.unbers i and 2 , !
(".P.l.a. nt. . Vo. gtle") . .
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- 2. 'On Octo,ber 21, 1980, plaintiff 31bert T. ' Leonard; worked )
as a laborer employed by defendant Walsh Construction Company'at the construction site of Plant Vogtle.
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- 3. ' Ce' o'rgia' Power has. . . . .. promulgated ce'rtain rules 6f c' onduct !
k aEd ($fety 55r the yrojeit."' ib'ese ib1M'aii' accepted' knd' a'greed
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to by each contractor before the contractor and its employees are
, . . . . . .. . . . . . . 1
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admitted to the job site. - '
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4l'X$onTths ' exhibits received into evidence 'sas the Kant Vogtle Proj ect Agreement, effective March 27, 1974 (Defendant's Exh. 7)', which pi.ovides that
[r)1coholic beveral;es or narcotics will not be allowed.
Anyone caught drinting or under the influence of drugs l
..or alcohol will be terminated and barred from the job.
Id. at page 22, 1 2. This agreement was amended August 18,,1981, which amendment did not affect the above rule'. '
2 1
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. .i . .__.In an interoffice memorandum communicated by Georgia Power to all supervisors and on-site contractors at' Plant Vogtle, dated Augus~t "I'; '1980"(Plaintiff's Exh'. 4), Georgia Power. issued nNiik6fti rilestr!!to MW L'dtWetly~~.eMhoY<fid. h*-Thd& cines tGles I
supercede the General .W6rk . ' Rules - * -previously issued." !
Specifically, as those rules' ' late t$ this case, Georgia Power e
stated "that V -' . u. - - n . : . :. :. . '
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[allcoholic beverages or' narcotics will not be allowed.
Anyone caught or suspected of drinking or being under the influence of drugs or alcohol.will be terminated.
- . e.- .
- n,. . . .. . . . :. . . .. : r.'. :, e . : . -;.e er, n .:. : ..
1 JB_. :ai'Rdle' 2;:-Fuf thermor'e , En:In we. 2 Octstrut.u = Cc Os.n-* : '
Any employee terminated for violation of these work rules will not be hired by any other contractor on the I
job site < for a period of no less than thirty (30) -
working *
- days'."'" The saferity "of the violation will"-
(- determine !if the em ,
In*
- siti' indefinitely. . .ployee .. ..:. will .-...be -.. barred-:- from the job Id. at Rule 19. ..
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- 6. Also received into evidence were the Rules of Conduct ;
and Safety for General Plant construction and Maintenance 1 Projects, effective January 1,1984 (Defendant's Exh. 9).
Those rules provide that I
[1)nyone possessing, under the influence of, or participating .in the sales , purchase, or distribution of any narcotics and other controlled substances (e:teept if prescribed by a physician to the person found in possession of the controlled substance or narcotic) on the job.
I_d_. at " Rules of Conduct, Category One Violations ," "[will be 3
_____..__.m_.-.----.------- - -
terminated). and not eligiblea. fore rehire >::on:.any Georgia . Power Company project. governed by these rules.". J,d_. at " Penalties for category;0ne Violations?..for.First Yiolation..'i r;;.. -
" cc, ne - verk rules b- stric:1v in#c,rce d . Tr.m r, w .. -
i:..:.7 : Joseph 3' M. :: Duffy q Y;then .. General Superintendent of ;
- s. .
1 construction at Plant .Vogtle' for Walsh . Construction. Company, since.0ctober,1977, testified that on November 8,1979, Mr. Ran Amerson, Georgia Power Safety,Co-ordinator, informed him that he
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had witnessed from a distance of approximately 150 yardsLMr. Bill '
.:.-.....<. t a r::::.w. . ~
Peterson of Walsh Construction Company and , Mr. J. P. Burke of . 1 <
_ Georgia . Power pa'asing-shat appeared to be a marijuana cigare'tte between ,.
themselves in a washed out area on the Georgia Power premises.:/ Mr. Duffy- testified that upon receiving this report.
r :. . : . .: :. .,. ::.::. :. :::-
he called;g . :::Mr. Peterso)n to his-office- for questioning; ..
According
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to Mr. -Duffy, Mr. .Peterson first denied but later admitted as r--- , , -
true the allegations asserted -,
against him by Mr. Amerson. (Mr. ;
l Duffy discharged Mr. Peterson, reportedly 1;,i " Violation of job rules [andi agreement." See Plaintiff's Exh. 5 dated November 8,
g .
1979. No other notation was made on Mr. Peters 5n'q s
. p.
, Mr .
m '--.
J 1 termination notice. Duffy., explained that the discharge
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notice did not specify violation of a particular work rule
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because no evidence was found on Mr. Peterson proving that he had i 1 -
I been smoking marijuana. ..
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- 8. j Mr. Peterson had been employed by Walsh Construction, Compaii[ h a journeyman,* and iyethnically, identifiable, as white.
4 4
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', , . , ,, 9 . According to)Mr., Duffy g_.o b, lank,et hiring call. va,s pieced
_. i
, on, November ,,9, 1979, to the union supplying laborers to Walsh n
Construction Company.., On. .that,_date(Mr..
. Peterson applied for a Mr 7
job with defendant as such a laborer. L . Duffy- testified that l the clerk ,, hire,d Mr,. Pete,rson c, notwithstanding the. , fact ,that he 1
.. q s,-
had,been, terminate.d .the previous. day for violating the rules. .
> :.:.: . v . : : : r- .- . u e:.: _s : ..5. :.e t- .- : -
.;.10.{Mr. .Duffyj tes,tified .that . .there was- nothing in[Mr.
Peterson's] file .to indicate that .he should_not be rehired. As
,fpund, above at., paragraph,5. . the rul,es, . changed in August , .1,9.80, to 4.isallow. ghe, r,eh,ir_e j(.ra discharged . employee,,y,i_thj.n. 30 , days -of .
termination _e @e Court notes that this . rule was not in effect at
.the. time Mr.:Peterson was di.scharged and subsequently rehired.
,y g g ', _ e ; - -a-*=r*- ~
'~, : . ~it . =- s --
r --
r
( :- :ll. 2.0n a later date,L1 Mr . Peter _so_n vas_, dis, charge,d, for poor -
verk performance. .
3.-, . ., _: , _: . ..
, 12. . . On October 21, 1980, plaintiff Albert T... Leonard was -
_ employed as a laborer with defendant Walsh Construction Comyany at . Plant .Vogtle. Plaintiff concedes that he was subject to
, Georgia . Power's work rules in effect on that dat;e .
- 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 b,ag in plaintiff's lunch box. This bag contained a leafy material which the security guard suspected to be marijuana. This security 5
( ,.
b guard asked plaintiff to remove the bag, which plaintiff did,
. handing it to the guard. The guard 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 i -
notified Mr. Joe Duffhin his ;. capacity as General Superintendent
- - r, .
of Walsh Construction Company.'
- 14. Plaintiff was discharged from his job with Walsh .
Construction Company on October 22,1980. (Mr. Duffy issued him a termination notice, which 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 b issued an official report on December 8, 1980, confirming that the substance taken fro:s plaintiff on October 21, 1980 was marijuana (less than 1 ounce, specifically* 7.3 grams).
(Plaintiff's Exh. 8).
i
- 16. The notation "{nlor, .for rehire" inscribed on his termination notice effectively has served to bar plaintiff from l the Plant Vogtle premises. Plaintiff has not been rehired by any contractor on the site since his October 22, 1980 discharge.
- 17. Mr. Duffy explained that when a discharged employee is
~ i qualified as "[nlot for rehire," a card is placed in his job file l to flag a hiring clerk's attention, signalling to such clerk that 6
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a job application is not' to be issuedto' the' requesting
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individual. " ** ~~ '
+ .- . ,: 5. . .: ... - .
' 18; Tol1ov121g $Yi'. 81sth'arge and* denials ' for reapplication',
. plaintiff filed a tilmely chargi'against defsodant with the Equal j.
Employment Opportunity Commission ("TbOC"), asserting employment discrimination on the basis of race. Plaintiff is ethnically
"*~~~* ' '
identifiable as blackf' '
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~;#19. Plaintiff received a determination lette'r from the EEOC
. . . . . .. . . . . . . . ... . . . . s.. . . .
on-......'h'I Marc W 1982. . ' Plaintiff'.s Exh.
- 2 r , ThMt letter reciter the two 3.ncidents of job termination described in the above findings i made by this Court. By that letter, the EEOC informed plaintiff to believe tut his" ch' aige that there was' reasonable cause
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a kainst-defendant 'was valid;
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- 20. Plaintiff filed this setion pursuant to that EEOC determination. Jurisdiction of this Court is unopposed.
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- 21. ,
Mr. Duffy testified that he knows in his capacity as project ' manager for Walsh Construction Company at Plant Vogtle that since plaintiff's discharge from the site, approximately ninety (90) other employees have been terminated for drug-related reasons, and these employees have not been reinstated.
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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 I race, in violation of Title'VIJ of the Civil Rights Act of 1964, as amended, 42 U.S.C. I 2000s,2's. sei. i In considering this question, the Court first notes that
" Title VII is not a shield against harsh treatment at the .
1 workplace."
~
Jackson v. City of Kileen, 654 T.2d'1181, 1186 (5th' l i
. Cir. 1981). "Nqr does the statute require the employer to have -
good cause for his decisions. 'The employer may fire an employee l'
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'
( communications, 738 F.2d .1181, 1187 (11th Cir. 1984) (citing' Megill 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 l Peterson7 r- 7 l !
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black, Mr. Peterson is white, and Mr was treated ;
L . - )
better, in that be was rthired after being discharged. Implicit r -
in this argument is plaintiff's belief that he and Peterson1 were similarly situated employees. However, the Court finds that the
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evidence does not support this premise. i First, while plaintiff was caught in possession of a suspected substance, Mr. Peterso was observed from 150 , yards engaging in a suspected activity. No marijuana was found on Mr.
Peterson's person; rather, his termination resulted from his 8
, admiss_ ion _.that_ he hed_,s,gokod : sc2e marijuana, not ' from proof thak
. ha had engaged in such activity. Nor is there any evidence that such activity influenced his behavior. Clearly,'there was better evidence.:.available:.tn.* prosecute a case.:.sgainst plaintiff 'than against Mr. Peterson ;
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- . Secondly, the Court notes that t_he work rules promulgated by Georgia Power .were reissued on _ August 1, 19.80, "to be. strictly y -
enforced." These new rules followed j Mr. Petersonis , initial 4
determination, but ,yre,ce,d,e,d ,and ,,th,erefore were in effect at the time of plaintif,f's discharge.. .The .new .. rules .added a charge of .
Tsuspic. ion" :.to r..the.:. previous requirement of direct. evidence 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 speculates: that 'under the rules..in affect _:st .the time .of
( v--- r P.laintiff,'s,, discharge,, Mr. Peterson would have qualified for the )
l s_ame.. action taken_ against 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.
- . . ..Accordingly, the Court concludes that plaintiff and Mr . .
Petersogarenot"similarlysituated"individualsforpurposesof Title VII. Consequently, the different treatment each wa's accorded by defendant does not support a judgment for plaintiff, merely because he is black. See Nix, 738 F.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 l
9 i
.Ihe . policy .cenceived cnd cnforced. by Georgia Power to maintain
. safety at a nuclear power plant under construction. . : ... .
. :.- Specifically, the Court reasons that: .as a -nuclear power fasikity grevs:.s].aser w:<osp1,etion rtthe seecurity sti .the-system peepssarily .becomes more burdensome, and that security and the responsibility for. . maintaining .it .
falls . most . heavily on the persons currently located on the site. .Tearly institution of.new work rules to preserve control and prevent accidents should be anticipated - by anyone who chooses .to . work. ' at: :,the .-site.
Complianc~ e . with', such rules - , in this ' Court's opinion, should be libsrally.. interpreted and strictly . enforced. See: Nix , s u p r a ... a t 1187.. (',' Title VII does not '.take away an employer's. right to interpret its rules as it chooses, an'd to make- determinations as !
it sees fit under those : rules.") ..- .Even ; the. _ suspected use of i
( drugs that may affect aculty, reflexes,..or.. coordination, should ;
i 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 l
defendant intentionally discriminated' against the plaintiff '"
United States Postal Service Board of Governors v. Aikens, 460 U.S. 711 (.1983) (citing Texas Department of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981)). "In other words , is 'the employer ... treating some people less favorably than others because of their race, color, religion, sex, or national origin.'" Aikens, supra, at 715,. (citing Furnco 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
1
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.aIter reviewing the evidence. re.ceived. and tie'stimon'y given in this
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ma,tter that plaintiff has ' failed'to"pr6duci" evidence establishing -
i a prima facia case of ' ' dis'driminat'ory Intentt- therefore, I di'rd-'of .'
.."de.r...tEs Thle TIT . ,,. r,,e. vi.e..v
-cons. . i d ... erat . f o....n of this ca..se un stan declare'd 6 Burdine, s'u p r a , is unnece's'sary. Siiith v. state of l Ceo. ra.la. ;-. . Io..- 33-875 3,- s li. . . . .:p op. at 1384 (11th 'd..ir.'Jan. 2, 1985).
... .: . . . . ... . . . . . 4 . :. . . . . . . . . . ..
111., .Conclu'sion
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l h... .r t e reasons stated, the Court must find in favor of F o.. . . j defendant 'and against plaintiff. This 'a'e t i o n 'c is 5-her'eby i divinis sed, on the merits. The parties are instructed to pay thei...r own costs. - -
/ l
'SO ORDERED, this j_,,}, day 'of7 JanuaI i 19'85.
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{
I
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,f, l JUDGE, UNITED STA 55~D WIRICT COURT '
SOUTHERN DIS JCT OF GEORGIA ga. .
s . .s .u e en ..e . .
es.
G .
I1
1 7 . .
w .
f \
Ol l s&% i INTERNATIONAL BROTHERHOOD of l l paintcrs and 9tilied Trades PHONE 4o4 724 2161 Chester L. Davidson, F. S.
February 21, 1985 and Business Representive t ou hyta. se.
Augusta, Georgia-30902 l
l l
l Williams Contracting Company l Mr. Art Bell {
F. O. Box 282 Waynesboro, Georgia 30830 i Dear Sirs {
i b Enclosed plasse find letters of grievance fr T. J. Altman, Sam Bens 14 and
, Jerry Borton. , Trusting that you will give this matter your earliest atten-i m ..
tien, I remain i i
! j Sincerely yo g s, l G g- q Chester L. Davidson y F. 8. and S. 1 4 l
1 CLD:ab j l opetu f21 j l an-cio 4 ene. 3 Grievances cc Personal File l GPC Labor Representative.
Jim love, Fainters' Int'l Rept.
Virgil Willies, Owner of Williams Cents. Inc.
0' */q !
I
' , . 1 i
February 1.1985 TO WEM IT MAY CONCERN:
r m '
While at work at Fiat Testle 1,. l Jerry Borten, was asked to take a drug
- -- i .,
test. I was told by Am Martta.): bare was a phone call saying that. Sam Esasley, Barbas Esosle and Jerry Eorto was smoking depe at D=141 's 8 tore. This was stated by a grudge call to Williams Contracting, Inc.
I took the test at Flaat Vogtle for drugs and it tras not positive. After this I was told I was going to have to go to Bunana Bospital for another drug test and I refuesd to go so I was fired for this. So this was on February 1,1985, i
s
( On February 2,1985,1,(Jerry norton a Eenste and we roguested. Chester e L. Davidson, Essiness Representative and we went to the hospital for aseth-er drug test. Jerry Eortes)andham Esasteteek a vitaassed Jios test for drugs and it ces est elem as drugs.
.o - >
AU MJ T Mrtes' '
.-- [
O Y
r .'
r i, .
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February 1,1985 10 Wl0X IT MAY CONCFJLN R$ foreman come and got me of the off the job and told me to wait in Room 1 27. arbara Esasley and Jerry florto were brought in, an(---Steve Martin,-
people were told they had the option to work or so home about one-half 7 e ,'
earliar. I asked +Lynn Silasj%at was going on, he turned to - Steve Martin, -
I and asked if he was goint to go homa,(Steve,left, the ynn Sila told me,
~
. Jarry and Barbara that we had been called in for a drug test. I learned e .-
laterthatLLynn also knew that teve Marti .had been called in too. Be was given the opportunity to leave, he had to take the test the maat day, and the day after because they said the machina had to be recalibrates.
(Barbars, Jerry and I went and took the test, we were sent back to the Bole.
lt l
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 or tracer of canniboid l
in our sample, at that point I knew something vse ant right, because I know that I don't fool around with drugs of any type, so I refused their test as Esnama Bospital. I went to the University Eospital and paid $135.d for a test, and had it vitassood by a doctor, the rassite were negative.
(
[SamEaIsley e i
d
JUN 2 1 19E5 -o i
'.P p... i x g, ~
1 INTERNATIONAL BROTHERHOOD of !
painters and Sillied Trades !
P>eONE 404 724 2 e t I orries o, Chester L. Davidson Ju.ne 19, 1985 F. S. and 3. A.
1251 itey I Augusta, Ga.-30902 Williams contracting, Inc.
i Mr. Tom McDowell, Labor Relations Rept.
2076 West Park Place Stone Mountain, Ga.
30087
Dear Sir:
\
I as w-iting you this letter in reference to tw grievances that was filed in February,1985 in behalf of members, Jerry "lorton'and Sam Hensley. These grievances were sent to &, Art Bell, Plant Manager at Vogtle Nuclear Plant toested in Burke County.
It was said to me in front of my Steward, that he, Art Bell would answer my **
grievance for these men. Since all of this has taken place Mr. Art Bell is no longer at riant Vogtle, and these grievances have not been answered on the y ---
said Jerry llorton and Sam liensley. j
- I am asking Willians Contracting , Inc.
l -
L-- ___ , % l that these two men, Sam liensleyjand Jerry Horton put back to work as early as 6-21-85 with back pay. I am looking for a quick reply on said grievances. J
, I feel these man were not treated properly because they asked to be given an-other test the very next day, ar.d was turned down by the said ynn Silas.
l They also asked Georgia Power Safety and the people that also gives the test.
6/g I l a
,i s w 2
s I went to University Hospital with Sam Hensle and erry Horton the very next day to take the union test for druge. The results came back and they were negative. A copy of these tests were sent to Georgia Power and also a copy wMt to W. Art Bell.
I would appreciata a reply as.soon as possible.
Sincerely yours,
$l-($ha Chester L. Davidson F. 8. and 8. A.
CIA:mb epsiu f21 sit-ele, ec: James love. Faiators' Int'l Rept.
Dale Cockrill, G3C Labor Rept.
Virgil Williams, Owner of Williams Contr. Inc.
( Frank Turnar, Attorney for Williams Contr. Inc.
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( . _ _ _ _ . _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _
NUCLEAR REGULATORY COMMISSION ASSESSMENT V0GTLE FITNESS FOR DUTY PROGRAM LEGAL ISSUES SEPTEMBER 15, 1986 L
t FITNESS FOR DUTY - ANSI STANDARDS SIGNIFICANT LEGAL QUESTIONS COOK ARBITRATION - 1982 E0 NARD VS. WALSH CONSTRUCTION COMPANY - 1984 ACLU SOLICITATIONS ,
l *hTEVEMCNALLY,BILLYWEATHERFORD,JAMESREGISTER, SUSAN REGISTER]AND[LESLIE PRICE)S. GEORGIA POWER COMPAN RANDYBIDWELhVS.PULLMANPOWERPRODUCTSANDGEORGIA POWER COMPANY - 1985 ,
KEITH RIEVELY AND MIKE MAENDELJ_VS. PULLMAN POWER PR AND GEORGIA POWER COMPANY - 1985
/ ,
MICHAEL HENSLEY AND JERRY HORTON~ VS. WILLIAMS CONTRACTING -
T985 l
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1;~ O W % ~l - 9 0 6l6