735 F.2d 1159 (9th Cir. 1984), 83-7353, Mackowiak v. University Nuclear Systems, Inc.

Docket Nº:83-7353.
Citation:735 F.2d 1159
Party Name:Robert MACKOWIAK, Petitioner, v. UNIVERSITY NUCLEAR SYSTEMS, INC., and Secretary, U.S. Department of Labor, Respondents.
Case Date:June 22, 1984
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1159

735 F.2d 1159 (9th Cir. 1984)

Robert MACKOWIAK, Petitioner,



Department of Labor, Respondents.

No. 83-7353.

United States Court of Appeals, Ninth Circuit

June 22, 1984

Argued and Submitted March 6, 1984.

Page 1160

Ann Cross Eschenbach, Seattle, Wash., for petitioner.

Elizabeth S. Woodruff, Dept. of Labor, Washington, D.C., for respondents.

Petition for Review of a Final Determination of the Secretary of Labor.

Before WRIGHT, GOODWIN and NORRIS, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

Mackowiak, a quality control inspector for University Nuclear Systems, Inc. (UNSI), was terminated in a reduction of force in January, 1982. He asserts that the termination occurred because he was an overly zealous inspector and because he identified safety problems to the Nuclear Regulatory Commission (NRC). He filed a complaint under the "whistle blower" protection statute of the Energy Reorganization Act, 42 U.S.C. Sec. 5851.

After a hearing, an administrative law judge concluded that the termination was not caused by protected conduct and recommended dismissal. The Secretary of Labor found a prima facie case of discrimination. Nevertheless, he dismissed because he found that UNSI would have terminated Mackowiak even if he had not engaged in protected conduct.

In his petition for review, Mackowiak argues that the Secretary's decision was not supported by substantial evidence.


Mackowiak is a sheet metal worker certified as a welding inspector by the American Welding Society. When hired by UNSI, he had 18 years experience as a welder and had taken specialized training in welding and welding inspection to qualify as a quality control inspector. UNSI employed him as a quality control inspector at a nuclear power plant under construction in Richland, Washington. UNSI was a subcontractor for Bechtel Power Corporation, installing the heating, ventilating, and air conditioning system at a plant owned by the Washington Public Power Supply System.

As a Level II quality control inspector, Mackowiak inspected work performed by UNSI employees to assure that it conformed to federal specifications. Whenever he found an improperly installed or constructed item, he was required to put a red

Page 1161

tag on it and file a Non-Conformance Report (NCR). UNSI's engineering department was required to resolve the NCR before work could resume.

Whenever an inspector found an item of possible noncompliance, he was required to write a Quality Control Request For Information to the quality assurance department. The department would investigate the potential problem and inform the inspector.

The duties of quality control inspectors are governed by detailed regulations of the Nuclear Regulatory Commission. 10 C.F.R. Part 50, Appendix B, requires licensees, contractors, and subcontractors to establish a quality assurance program that utilizes inspectors of "sufficient authority and organizational freedom to identify quality problems; to initiate, recommend, or provide solutions; and to verify implementation of solutions." Id. at 413.

In September 1981, Mackowiak talked to inspectors from the NRC in connection with their ongoing investigation of UNSI's work. He and his wife, who was also a quality control inspector for UNSI, met with the NRC inspectors at their home. They discussed quality control problems at UNSI and made several allegations that were investigated by the NRC inspectors.

Later in September or early October, UNSI's quality assurance manager spoke to an NRC inspector about safety and quality allegations. The manager asked if Mackowiak was involved in these allegations and the inspector replied that he was.

On October 22, 1981, the NRC investigators conducted "exit interviews" with UNSI officials to discuss the safety and quality control allegations. That day, Mackowiak and Virginia Robbins, his supervisor on swing-shift, were given Confidential Counseling Statements and transferred to day shift. Mackowiak was told that he had a negative and mistrustful attitude toward management and that he would be terminated if he did not learn to accept management directives. Robbins was relieved of her supervisory responsibilities and resigned the following day.

Soon thereafter, Mackowiak was transferred to rod control. He considered this position inferior to the one he had held.

UNSI withdrew Mackowiak's counseling statement on December 1, 1981. Several incidents happened in the following month and a half which caused it to question again Mackowiak's attitude. On December 10, 1981, he filed Request for Information No. 433 regarding possible falsification of rod control documentation by UNSI personnel. The subject of this memorandum was later identified by NRC investigators as an open area of UNSI noncompliance with NRC regulations.

On January 8, 1981, without authority, Mackowiak "red tagged" a tool crib when the attendant was absent for a half hour. This incident culminated an ongoing dispute as to access to the tool cribs by the quality control inspectors. In the previous month, Mackowiak had written a Request for Information regarding difficulties he had encountered inspecting locked tool cribs. The management responded by giving inspectors keys or combinations to all cribs that were not continuously manned. UNSI admitted, however, that locks and combinations were changed before January 8 without informing the inspectors.

Also on January 8, UNSI requested new quality control inspectors from the union. Soon thereafter, Bechtel told UNSI that it had to lay off approximately eight percent of its force. The union contract provided:

In case of layoffs, the last employee hired shall be the first laid off providing the ability and efficiency of the employee is substantially equal.

UNSI determined that Mackowiak's "attitudinal problems" made him inferior to other inspectors with less seniority, despite his admitted technical competence. He and three junior inspectors were terminated on January 19.

UNSI has not denied that Mackowiak was a technically competent inspector. The Confidential Counseling Statement noted that his "inspection qualifications/expertise is excellent and he is a good inspector."

Page 1162

His manager wrote a strong letter of recommendation after Mackowiak was discharged.

Only one or two welding inspectors at UNSI shared Mackowiak's certification by the American Welding Society. There was uncontroverted testimony that the overall level of competence among UNSI's quality control inspectors was low. UNSI bases its entire case on Mackowiak's attitude problems.


A. Standard of Review

We review the Secretary's decision under the Administrative Procedure Act, 5 U.S.C. Sec. 706. We will set aside the agency decision if it is "unsupported by substantial evidence" or "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." Id. Secs. 706(2)(A), (E); Saavedra v. Donovan, 700 F.2d 496, 498 (9th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 236, 78 L.Ed.2d 227 (1983).

B. Elements of a Valid Claim Under Section 5851

A discrimination claim under Sec. 5851 must include proof:

(1) That the party charged with discrimination is an employer subject to the Act; (2) that the complaining employee was discharged or otherwise discriminated against with respect to his compensation, terms, conditions or privileges of employment; and (3) that the alleged discrimination arose because the employee participated in an NRC proceeding ....

DeFord v. Secretary of Labor, 700 F.2d 281, 286 (6th Cir.1983).

As a subcontractor of an NRC licensee, UNSI is an employer subject to the Act. 42 U.S.C. Sec. 5851(a). It is also clear that UNSI discriminated against Mackowiak by giving him a Confidential Counseling Statement, by transferring him to less desirable employment, and by discharging him ahead of less senior inspectors. See DeFord, 700 F.2d at 287 (discrimination proved by transfer to less attractive and prestigious job).

The question is whether Mackowiak was discriminated against because he participated in an NRC proceeding....

To continue reading