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

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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

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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...

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