Bechtel Const. Co. v. Secretary of Labor

• Decision Date: 20 April 1995
• Docket Number: No. 94-4067,94-4067
• Citation: 50 F.3d 926
• Parties: 130 Lab.Cas. P 11,322, 10 IER Cases 874 BECHTEL CONSTRUCTION COMPANY, Petitioner, v. SECRETARY OF LABOR, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 926

50 F.3d 926

130 Lab.Cas. P 11,322, 10 IER Cases 874

BECHTEL CONSTRUCTION COMPANY, Petitioner, v. SECRETARY OF LABOR, Respondent.

No. 94-4067.

United States Court of Appeals Eleventh Circuit.

April 20, 1995.

Daniel S. Pearson, Holland & Knight, Christopher N. Bellows, William Hamilton, Miami, FL, for petitioner.

Marva M. Peace, William J. Stone, U.S. Dept. of Labor, Washington, DC, for respondent.

Petition for Review of a Final Decision and Order of the Secretary of Labor.

Before CARNES, Circuit Judge, DYER and GUY ^*, Senior Circuit Judges.

RALPH B. GUY, Jr., Senior Circuit Judge:

This is an appeal from the Secretary of Labor's determination that petitioner violated the employee protection provisions of the Energy Reorganization Act, commonly referred to as whistleblower provisions. The provisions prohibit an employer from discharging or otherwise discriminating against any employee who has engaged in protected activities. On appeal, petitioner Bechtel Construction Company (Bechtel) claims that the Secretary of Labor's finding that Bechtel discharged one of its employees for engaging in whistleblower activities is not supported by substantial evidence. Petitioner further claims that the employee's conduct was not protected activity as a matter of law.

Our review of the record convinces us that the Secretary should be affirmed.

I.

Bechtel is a contractor at the Turkey Point Nuclear Power Facility at Florida City, Florida. Turkey Point is owned and operated by the Florida Power and Light Company (FPL), which is licensed to operate the facility by the Nuclear Regulatory Commission (NRC). Bechtel built the plant for FPL and continues to maintain it. The facility is divided into two areas, the radiation control area and the non-radiation area.

Approximately every 18 months the nuclear units at Turkey Point are shut down for refueling, maintenance and general repairs. These periods are called refueling outages, and may last from several weeks to several months depending upon the work required. During these periods of increased maintenance work, Bechtel hires additional workers. In the spring of 1987, during one of these periods, Bechtel needed an additional carpenter crew for work inside the radiation control area (RCA), a large area which includes containment units, buildings, facilities, and grounds. All persons who work in the RCA must attend and pass a three-day course known as Red Badge School, which takes place at the facility and instructs the workers on RCA procedures, including health physics requirements and handling of radiation-contaminated objects.

The RCA is supervised and controlled pursuant to NRC guidelines and regulations. All contemplated work and activity in the RCA is pre-screened by the licensee, FPL, or its contractor, Bechtel, to determine the amount of possible radiation exposure, the necessary protective clothing and the equipment necessary for such work assignments. Each work activity requires a radiation work permit (RWP), which provides and identifies necessary information.

During the spring 1987 outage Larry Williams, the carpenters' general foreman, decided to form an additional carpenter crew, elevating John Wright as crew foreman. Bechtel staffed the new crew primarily by hiring new workers. Williams, however, wishing to include an experienced, Red Badge-certified carpenter, approached a non-RCA carpenter foreman, Greg Lilge, and asked that Russ Smith, one of Lilge's crewmembers, be transferred to Wright's crew.

Lilge offered Roy Nichols, instead. Except for an eight- to ten-week layoff, Nichols had worked as a non-RCA carpenter for Bechtel for 31 months. For the previous six months, however, Nichols reflected what Lilge described as an attitude problem. A few weeks earlier, Lilge had recommended to Williams that Nichols be laid off in the next reduction in force at the end of the outage. Nonetheless, Williams approached Nichols about this proposed transfer. He told Nichols that Wright's crew needed some experienced carpenters, and that it was "more than likely" that Nichols would return to Lilge's crew when the outage was over. At the hearing, however, Williams admitted that he did not tell Nichols the whole truth, and that he actually believed that all of Wright's crew, including Nichols, would be laid off at the end of the outage. Nichols transferred to Wright's crew in early March 1987. During the first weeks of the outage, the temporary crew worked in non-radioactive areas. Later, however, the crew was assigned to work on a unit that required handling contaminated tools.

When working in radioactive areas, the crew members would change into special clothing at the beginning of their work shift. They would then select tools they needed for the particular task. These previously contaminated tools were stored in a "hot tool box" located in a storage building for radioactive materials. Upon obtaining the tools, a crew member would have the health physics (HP) staff person on duty measure the amount of contamination and write the rate of contamination on a tag attached to the bag containing the tools. The procedure was known as "taking a dose rate and tagging" the tools. The HP technician also would brief the employees on the highly contaminated areas and required safety precautions. He would then give the employee an RWP, listing the equipment and radiological conditions under which the employee would be working. The employee was required to sign the RWP, which indicated agreement to abide by the permit's regulations.

When Wright's crew began working inside the RCA, Nichols and Wright disagreed over the proper procedure for surveying and tagging contaminated tools. Nichols had not previously worked in the RCA, but he had taken five Red Badge courses. Based on his training, Nichols understood that contaminated tools were to be put in two double polyurethane bags and carried to the "frisking station" where the HP technician on duty could take a dose rate and tag them. Wright told Nichols that the tools could be placed in a single bag, and if the HP technician was not at the frisking station, the tools could be taken to the HP technician in the dry storage warehouse for dosing and tagging. Nichols disagreed and stated that he believed safety procedures required that the tools be surveyed at the tool box.

In general, workers within the RCA differed in opinion as to which procedure was correct. Wright's approach was consistent with the way another crew operated and with the view of some HP staff members. Nichols and some other crew members, however, thought the procedure violated safety requirements. Another crew member on Nichols' crew testified at the administrative hearing regarding Nichols' whistleblower claim that he had made an anonymous complaint to the senior HP supervisor about the practice. Even HP technicians had given conflicting instructions.

Nichols insisted on waiting at the tool box for an HP worker to survey the tools before reporting to the work site, contrary to Wright's instruction. Nichols told his foreman's supervisor, Williams, that he disagreed with the way Wright said to handle the tools. Williams told Nichols he would investigate. Nichols also approached a couple of the HP technicians and the HP supervisor assigned permanently to Turkey Point to discuss this issue.

Ultimately the HP shift supervisor, Donald Hicks, resolved the issue of where to survey and tag tools. The HP supervisor told Wright that Nichols was correct about where the tools had to be surveyed. Wright indicated that he believed that surveying the tools at the tool box caused too much delay. Nevertheless, Wright acceded and told his crew to have their tools surveyed and tagged at the tool box. Hicks also mentioned to Williams and Wright that he had received a complaint about the tool handling situation, but refused to identify the complainant. Wright, however, learned from other crew members that Nichols had complained to Williams about how the tools were being handled. Wright confronted Nichols, and advised Nichols to come to him first with any such problems. Nichols reminded Wright that he had already come to him about the issue.

As the outage came to an end in April of 1987, Williams approached Wright and told him that, as part of the reductions in force which had begun earlier that month, Wright should pick one of his carpenters to be laid off. Wright initially selected a crew member who was absent from work that day. The next day, however, he told Williams to lay off Nichols. Williams asked Wright if he was sure. Wright indicated that he was, and Nichols was laid off.

Within 30 days, Wright's entire crew was laid off. Wright returned to his carpenter position. Bechtel did recall some of the temporary employees for additional work; it never recalled Nichols however. Nichols became ineligible for rehire sometime in 1988 or 1989 because Bechtel hires its carpenters through the union, and Nichols had stopped paying his union dues.

After he had been laid off, Nichols asked Williams why he had been let go. Williams indicated that Nichols had always been a good worker, and was laid off at Wright's discretion because Wright believed he could work better with the other carpenters on the crew.

In May 1987, Nichols filed an administrative complaint with the United States Department of Labor (DOL) alleging that Bechtel unlawfully discriminated against him. He claimed that Bechtel laid him off because he insisted on following safety procedures. Following an investigation, DOL's Wage and Hour Division of the Employment Standards Administration issued a letter concluding that Bechtel had discriminated against Nichols by terminating his employment at Turkey Point for activities protected by the Energy Reorganization Act of 1974, as amended (the Act or ERA), in violation of 42 U.S.C. Sec. 5851 and implementing regulations thereunder. Bechtel requested a hearing before...