DOL Home > OALJ > Whistleblower > McCafferty v. Centerior Energy, 96-ERA-6 (ARB Sept. 24, 1997) |
ARB CASE NO. 96-144
ALJ CASE NO. 96-ERA-6
DATE: September 24, 1997
In the Matter of:
OWEN McCAFFERTY, DENNIS
MALONEY, SEAN KILBANE,
TERRY McLAUGHLIN, SEAN
McCAFFERTY, and ROBERT
PROHASKA,
COMPLAINANTS,
v.
CENTERIOR ENERGY
This case was brought by six employees (Complainants) against
Centerior Energy (Centerior) under the employee protection provision of the Energy
Reorganization Act of 1974, as amended (ERA), 42 U.S.C. §5851 (1994).2 Following an evidentiary
hearing the Administrative Law Judge (ALJ) issued a decision in favor of all Complainants,
and recommended various forms of relief, including "reinstatement" in accord with
his instructions, back pay, removal of denial of access flags from the personnel records of
Complainants, and interest on the back pay awards. Recommended Decision and Order (R.
D. and O.), June 11, 1996, at 21. Pursuant to the CNEPA amendments to the ERA, on July
15, 1996, the Administrative Review Board (the Board) preliminarily ordered Centerior to
provide relief to Complainants in accordance with the ALJ's directives. Preliminary Order
(P.O.), July 15, 1996, at 2-3.3 On October 22, 1996, the ALJ issued an order granting attorney's fees and
expenses to the Complainants. Thereafter the Board preliminarily ordered Centerior to pay
those fees and expenses. Supplemental Preliminary Order and Order Establishing Briefing
Schedule (S.P.O.), December 3, 1996. We now address the merits of the case.
In 1994, Complainants Owen McCafferty, Dennis Maloney, Sean
Kilbane, Terry McLaughlin, Sean McCafferty, and Robert Prohaska were all working as
insulators4 for Gem
Industrial Services, a contractor at Centerior's Davis-Besse Nuclear Plant, which was
undergoing a refueling and maintenance outage. On October 7, 1994, Complainants were
exposed to, and received an internal dose of radioactive materials, after removing a piece of
insulation. The exposure was unplanned, as Centerior officials believed that there would be
no exposure to radioactivity as a result of the task Complainants were performing.
Centerior immediately commenced its own investigation of the
"unplanned intake event." Respondent's Exhibit (RX)-2, NRC Inspection Report
No. 50-346/94010 (DRSS) at 5. The NRC also investigated and issued Centerior a notice of
violation which asserted that Centerior did not perform an "evaluation of the
contamination levels underneath insulation on the east once through steam generator hot leg
. . . to determine whether engineering controls were required to control the concentration of
radioactive material in air." RX-2, Notice of Violation, at 1. The NRC noted that
"no regulatory dose limits were challenged" during this event -- in other words
Complainants were exposed to radiation levels below the limits set by the NRC. RX-2,
emorandum dated November 23, 1994, at 1. Centerior accepted responsibility for the
violation. Complainants' Exhibit (CX)-D, at 2.
With the exception of Sean McCafferty, Complainants continued to
work at Davis-Besse until they were laid off at the end of the outage in December 1994.5 R. D. and O. at 3.
In August 1995 Complainants filed a civil complaint against Centerior
in the United States District Court for the Northern District of Ohio, alleging that Centerior
breached its duty of care by failing to take necessary precautions to protect Complainants from
an unwarranted exposure to radioactive materials. CX-A. Complainants alleged, among other
things, that they were the victims of intentional and unintentional infliction of emotional
distress. They asked for $30 million in damages. They asserted jurisdiction under the
Price-Anderson Act, 42 U.S.C. §2210(n)(2) (1988), which is part of the Atomic Energy
Act.6
In September 1995, Complainant Dennis Maloney was hired by
Fishbach Power Services to perform insulation work during an outage at another of
Centerior's facilities, Perry Nuclear Power Plant (Perry). Either at, or shortly after his
incoming radiological screening, Maloney asked the radiological protection staff to provide
him with information regarding his incoming whole body count.7 The staff member notified Pat
Volza, the site radiation protection manager at Perry, and mentioned Maloney's involvement
in the unplanned intake at Davis-Besse. Volza then contacted his counterpart at Davis-Besse,
who told Volza that Maloney had filed a lawsuit against Centerior. Volza testified that the two
discussed whether they thought Maloney would suffer any emotional distress on the job or
would find it difficult to comply with Centerior's radiation policies. T. 151-152. Volza then
contacted Robert Schrauder, Director, Perry Nuclear Services Department, to express his
concern that Maloney might have been attempting to obtain his whole body count in order to
strengthen his case against Centerior, and that Maloney might not be willing to comply with
Centerior's radiation policies.8 T. 152, 168 (Volza).
Schrauder then obtained a copy of Complainants' civil complaint. He
subsequently contacted a Fishbach official and told him to remove Maloney from the Perry
project and not to hire any of the Complainants for work at any Centerior facility. The
Fishbach official requested those instructions in writing. Therefore, on October 13, 1995,
Schrauder wrote to Fishbach:
CX-B. Schrauder testified that he ordered that Complainants not work for Centerior during
the pending litigation because he took them at their word when they claimed in their civil
complaint that they were debilitated and suffered emotional distress as a result of their
radioactive intake at Davis-Besse. T. 207-208. He further testified that he barred
Complainants only until their litigation was resolved because he thought that by that time they
might have overcome their concerns regarding the use of respirators. He did not interview
aloney or attempt to interview any of the other Complainants because:
On October 26, 1995, Complainants filed this suit, alleging that
Centerior, in barring them from work at Centerior facilities, had retaliated against them for
engaging in activity protected by the ERA's employee protection provision.
I. Liability
In order to prevail in a case brought under the employee protection
provision of the ERA a complainant must establish by a preponderance of the evidence that
he or she engaged in protected activity and that the protected activity "was a contributing
factor in the unfavorable personnel action alleged in the complaint." 42 U.S.C.
§5861(b)(3)(C) (1994). Whether Complainants engaged in protected
activity by filing a civil action under the Price-Anderson Act presents a novel question of
statutory interpretation which we discuss in Section A below. We discuss in Section B the
question whether Respondent retaliated against Complainants for filing their Price-Anderson
Act civil action.
A. Protected Activity
The action which Complainants here allege (and which the ALJ found)
was protected is the filing of their civil complaint against Centerior under the Price-Anderson
Act, which is part of the Atomic Energy Act. Section 211 of the ERA provides in pertinent
part:
42 U.S.C. §5851(a) (1994) (emphasis supplied). The question which we must answer
is whether filing a civil complaint pursuant to the Price-Anderson Act constitutes
"commenc[ing] a proceeding under . . . the Atomic Energy Act of 1954 as
amended" within the meaning of Section 211 of the ERA.
The ALJ found that the meaning of the ERA was clear: [I]t would
appear that there could be little room for argument that filing the complaint is protected
activity under subsections (D) and (F) of §211 of the ERA, that is, that the civil action
constitutes a proceeding, or "any other action" under the Atomic Energy Act.'
R. D. and O. at 7. As we discuss below, we agree that a Price-Anderson Act civil action is
a "proceeding" under the "Atomic Energy Act, as amended" within
the meaning of Section 211 and therefore falls within its protective ambit.
A "familiar canon of statutory construction [is] that the starting
point for interpreting a statute is the language of the statute itself." Consumer
Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980); Refeh-Rafie
Ardestani v. INS, 502 U.S. 129, 134 (1991). There is "no more persuasive
evidence of the purpose of a statute than the words by which [Congress] undertook to give
expression to its wishes."' Griffin v. Oceanic Contractors, Inc., 458 U.S.
564, 571 (1982) (quoted citation omitted). In addition, the Supreme Court has held that if a
term is not defined in a statute it should be given its common law or ordinary meaning.
Community for Creative Nonviolence v. Reid, 490 U.S. 730, 739 (1989). Indeed,
the plain meaning of legislation should be conclusive, except in the "rare cases [in
which] the literal application of a statute would produce a result demonstrably at odds with
the intentions of its drafters." Griffin v. Oceanic Contractors, Inc., 458 U.S.
564, 571 (1982). With these principles in mind, we analyze the relevant language of Section
211.
Complainants' civil action was brought pursuant to the "public
liability" provision of the Price-Anderson Act, which is part of the Atomic Energy Act
of 1954. A brief recitation of the origins of the Price-Anderson Act will aid our discussion.
Prior to 1954, the construction and operation of nuclear power
facilities was entirely in the hands of the federal government. O'Conner v.
Commonwealth Edison Co., 13 F.3d 1090, 1095 (7th Cir. 1994). In that year Congress
enacted the Atomic Energy Act of 1954, which created the Atomic Energy Commission and
gave it power to regulate private nuclear energy production. O'Conner, 13 F.3d
at 1095. However, members of the private sector were reluctant to enter the nuclear energy
field because of their potential liability should there be a nuclear accident. Congress therefore
passed the Price-Anderson Act:
In re TMI Cases Consolidated II, 940 F.2d 832, 837 n.2 (3d Cir. 1991) cert.
denied, 112 S.Ct. 1262 (1992).
In 1966 and 1975 the Price-Anderson Act was extended. The 1966
amendments, among other things, required those indemnified by the Price-Anderson Act to
waive common law defenses in actions arising from an "extraordinary nuclear
occurrence."10
The 1966 amendments "also provided for the transfer, to a federal district court, of all
claims arising out of an extraordinary nuclear occurrence." TMI II, 940 F.2d
at 852. In the Price-Anderson Amendments Act of 1988 Congress significantly broadened the
reach of federal court jurisdiction to include all claims arising out of a "nuclear
incident" as defined in the statute.
As a result of the passage of the Price-Anderson Amendments Act of
1988:
TMI II, 940 F.2d at 854-855. Thus, as of 1988 the Price-Anderson Act provided
the sole jurisdictional basis for damage actions arising out of nuclear incidents. Complainants'
civil action, which in essence alleges that Centerior created a public liability by causing a
nuclear incident which allegedly harmed Complainants, therefore was brought pursuant to
"the Atomic Energy Act of 1954, as amended . . . ." We see no reason to give
this phrase anything other than its ordinary meaning, and conclude that a Price-Anderson civil
action is an action under the Atomic Energy Act for purposes of Section 211.
We also conclude that the plain meaning of "proceeding"
includes Complainants' civil action under the Price-Anderson Act. "Proceeding"
is defined as "[t]he taking of legal action." Webster's New World
Dictionary, Third College Ed., 1988. Complainants' civil action in federal district
court is clearly "legal action." Therefore it falls squarely within the plain meaning
of the term "proceeding" as used in Section 211 of the ERA.
Relying primarily on the assertion that the term
"proceeding" as used in Section 211 is ambiguous, Centerior argues that we
should look beyond the plain meaning of Section 211 to its statutory construction and purpose.
It is true that some courts have ruled that the term "proceeding" in Section 211 is
ambiguous.12 However,
these courts were evaluating various informal actions on the part of complainants, such as
internal complaints to supervisors. Although we certainly agree that the meaning of the term
"proceeding" is not entirely clear when viewed from the perspective of such
informal actions as internal complaints,13 we do not find that ambiguity at the other, formal, end of the spectrum
where Complainants' civil action lies. "Proceeding" can encompass many things,
including NRC hearings, investigations, or congressional hearings. But the word most
certainly includes a federal civil action, such as that brought by the Complainants. "It
should be generally assumed that Congress expresses its purposes through the ordinary
meaning of the words it uses . . . ." Escondido Mutual Water v. LaJolla,
466 U.S. 765, 772 (1984). We therefore conclude that the term "proceeding" is
not ambiguous in these circumstances, and clearly encompasses Complainants' civil action.14
B. Retaliation
The other issues relevant to the question of Centerior's liability are:
(1) whether Complainants established by a preponderance of the evidence that their protected
activity was a contributing factor in Centerior's decision to revoke Complainant Maloney's
access to Perry and to bar Complainants from working at Centerior's facilities, and if so; (2)
whether Centerior demonstrated by clear and convincing evidence that it would have barred
Complainants in the absence of their protected activity.15 42 U.S.C.
§5851(b)(3)(C) and (D) (1994).16 See Creekmore v. ABB Power Systems Energy Services, Inc.,
Case No. 93-ERA-24, ARB Dec. and Rem. Ord., Feb. 14, 1996, slip op. at 5.
Because this is one of those rare cases in which there is direct evidence
of retaliation, the answer to the first issue is patently clear. Complainants filed their civil
action against Centerior. Centerior official Schrauder learned of the civil action and
immediately revoked Complainant Maloney's access to Perry, which caused him to be laid off
by his employer, Fishbach. In addition, Schrauder contacted Fishbach and ordered it not to
place Maloney or any of the other five Complainants at "any Centerior facility"
because "Centerior is currently involved in litigation" with them. CX-B.
Schrauder added, "please do not assign any of them to the Perry Plant at least until this
litigation is resolved." Id.
There can be no doubt that Centerior ejected and barred Maloney and
barred the other five Complainants, at least in part, because of their protected Price-Anderson
Act civil action. Schrauder's remarks and actions "speak directly to the issue of
discriminatory intent, [and] relate to the specific employment decision in question."
Lederhaus v. Paschen and Midwest Insp. Serv., Ltd., Case No. 91-ERA-13, Sec.
Dec. and Ord., Oct. 26, 1992, slip op. at 4, quoting Randle v. LaSalle
Telecommunications, Inc., 876 F.2d 563, 569 (7th Cir. 1989). See also Beshears
v. Asbill, 930 F.2d 1348, 1354 (8th Cir. 1991), and cases cited therein (comments by
a manager or those closely involved in employment decisions may constitute direct evidence
of discrimination). We think that Schrauder's actions and his memorandum clearly establish
that retaliatory motives were a "contributing factor" in Centerior's decision to bar
the six Complainants.
Thus, we turn to the second issue: whether Centerior proved by clear
and convincing evidence that it would have taken the same "unfavorable personnel
action" against Complainants even if they had not filed their Price-Anderson Act
lawsuit. We conclude that Centerior failed to meet its heavy burden of persuasion on this
issue.
Centerior argues that it would have fired Maloney and blacklisted the
Complainants in any event, because the allegations in their Price-Anderson Act complaint
revealed that they were not fit to work in a nuclear power facility:
Res. Br. at 12. Centerior's assertions are largely unsupported by the record, and do not meet
the high standard Congress has erected under the ERA amendments.
First, and most important for purposes of our analysis, is the fact that
neither Schrauder nor any other Centerior official interviewed Maloney or any of the other
five Complainants before Centerior acted. "Neither Volza nor Schrauder interviewed
complainants, or in any other way attempted to determine if their past behavior was disruptive
or predictive of disruptive behavior in the future." R. D. and O. at 12. Second,
Centerior's bald assumptions about Complainants' future behavior are inconsistent with the
uncontroverted evidence that all six Complainants continued to work in appropriate ways at
Davis-Besse following the unplanned exposure to radiation there, and were told they would
be welcomed back. See T. 27-30 (Maloney). Similarly, there is nothing in the
record which indicates that at the time Centerior barred Complainants they were unwilling to
work without respirators.17
Third, Centerior generalizes about Complainants' future behavior
based upon an unplanned exposure -- one that the NRC found was the result of
Centerior's failure properly to survey the area in which Complainants were working. If those
surveys had been taken, Centerior would have been required by NRC regulations to
"use, to the extent practical, process or other engineering controls (e.g., containment
or ventilation)" to control the concentrations of radioactive material in air to
"values below those that define an airborne radioactivity area." 10 C.F.R.
§§20.1701, 20.1702 (1997). Only if it were not practical to apply process or
other engineering controls to control the concentrations of radioactive material in air would
Centerior have been free to limit intake of radioactivity by "[l]imitation of exposure
times," or use of respirators. 10 C.F.R. §20.1702 (1997). At the time it barred
Complainants Centerior had no basis upon which to assume that they would refuse to follow
work instructions in a properly surveyed and controlled environment.
Thus, Centerior's speculations about how Complainants would act in
the future are simply that. As the ALJ found, "Centerior has not produced any evidence
to support its contentions" regarding the unsuitability of Complainants to work the Perry
outage. R. D. and O. at 12.
Finally, Centerior's speculation about Complainants' future behavior
does not overcome Schrauder's explicit admission. When asked why he didn't seek to
interview Maloney prior to revoking his access permit, Schrauder testified:
We conclude that Schrauder's real basis for barring the Complainants is clear: he did not want
to provide work for persons who had filed suit against Centerior. Because Complainants' suit
was protected activity, Schrauder's motive was retaliatory.
Centerior also seeks to avoid liability regarding Complainants other
than Maloney on the grounds that theirs is essentially a refusal to hire case, and they did not
establish that they were qualified for the insulator positions at Perry. Res. Br. at 17. We need
not address this issue, because Centerior stipulated that the evidence presented regarding
aloney would be applicable to the other Complainants:
T. 124-125. Centerior cannot now argue that Complainants other than Maloney failed to
establish their qualifications for the insulator positions at Perry.18
We therefore conclude, as did the ALJ, that Centerior retaliated against
all six Complainants. However, we need to give separate attention to the case of Sean
cCafferty.19 Centerior
argues that Sean McCafferty was not qualified for a position at Perry (and therefore could not
have been retaliated against) because he lied on a self-disclosure questionnaire about having
been removed from a previous job because of a positive drug test. Res. Br. at 18. However,
Centerior did not know of McCafferty's false statement at the time it retaliated against
him.20 The Supreme
Court in McKennon v. Nashville Banner Pub. Co., 130 L.Ed.2d 852 (1995), dealt
with the effect of after-acquired evidence in an age discrimination case. The Court ruled that
after-acquired evidence could not be used to negate liability:
McKennon v. Nashville Banner Pub. Co., 130 L.Ed.2d at 862. This leads us to
conclude that, because it did not know of the nondiscriminatory reason to bar him, Centerior
unlawfully retaliated against Sean McCafferty even though it would have had independent
grounds to deny him access.
We do not end our inquiry about McCafferty here, however, for even
though Centerior violated the ERA with regard to him, we must consider how the after-acquired
evidence of McCafferty's wrongdoing bears on his remedy. We discuss this issue
in the section on relief below.
II. Relief
The ALJ recommended that Complainants be awarded back pay and
offered "reinstatement," as well as attorney's fees, costs, and interest. R. D. and
O. at 21, Recommended Decision and Order Granting Attorney Fees (R. D. and O. II) at 4.
He also recommended that the denial of access flags be removed from Complainants'
personnel records. R. D. and O. at 21. In the main we are in agreement with the ALJ's
determinations regarding relief. However, certain matters warrant our attention.
A. Sean McCafferty
Sean McCafferty was denied access to Davis-Besse (and therefore was
removed from his insulation position there) on November 28, 1994, because he had lied on
a self-disclosure questionnaire. Centerior argues, therefore, that McCafferty would not have
been eligible to be placed at Perry. The letter denying him access to Davis-Besse informed
cCafferty that prior to being eligible for reinstatement:
RX-5, p. 1. McCafferty testified that he had not made any effort to obtain the professional
assessment. T. 267.
The ALJ found that this denial of entry did not disqualify McCafferty
for work at Perry because the removal letter only referred to a "denial of access to
Davis-Besse, not all of Centerior's nuclear plants or Perry." R. D. and O. at 15-16.
oreover, the ALJ ruled:
R. D. and O. at 16. We disagree with this finding. First, Schrauder testified without
contradiction that the November 1994 denial of access would be applicable at Perry as well
as at Davis-Besse, and that a person in McCafferty's position would not have cleared the
security screening. T. 213.
Second, the ALJ erroneously credited McCafferty's explanation that
he did not seek the professional assessment because of the illegal denial of access at Perry.22 For almost one year,
between November 28, 1994 (when McCafferty was denied access at Davis-Besse), and
October 13, 1995 (when Schrauder sent the denial of access letter to Fishbach (CX-B)), there
was no denial of access at Perry in force. Yet McCafferty took no steps to remove this cloud
over his employment. McCafferty's testimony that he would have pursued an assessment had
he not been barred because of his lawsuit is contradicted by the facts.23
Thus, we conclude that the unlawful denial of access did not interfere
with McCafferty's ability to obtain a professional assessment, and that absent that assessment
Sean McCafferty was ineligible for placement at Perry. Therefore, we must determine what
relief is appropriate for McCafferty given that Centerior would have been able to bar him
from Perry once it knew of the denial of access at Davis-Besse.24 As the Supreme Court
stated in McKennon:
McKennon v. Nashville Banner Pub. Co., 130 L.Ed.2d at 864. See James
v. Ketchican Pulp Co., Case No. 94-WPC-4, ARB Final Dec. and Ord., Mar. 15,
1996, slip op. at 4-5.
Applying these principles to the facts relevant to Sean McCafferty, we
conclude that McCafferty should be awarded back pay from the date the four other
Complainants (other than Maloney) would have been placed at Perry absent Centerior's
retaliation (October 30, 1995, see below) until the date that Centerior knew of
cCafferty's denial of access at Davis-Besse. Because Centerior failed to introduce evidence
which might have established an earlier date upon which Centerior acquired this knowledge,
we conclude that the appropriate end date for back pay liability for McCafferty is the date of
the hearing before the ALJ (February 26, 1996). We will include the calculation of the
amount due McCafferty in the back pay discussion below.
B. Removal of Denial of Access Flags
The ALJ correctly recommended that the denial of access flags which
Centerior placed in Complainants' records be removed.25 As part of its retaliation,
Centerior had written Fishbach, ordering it not to place any of the Complainants at any of
Centerior's facilities at least until Complainants' federal district court litigation was completed;
Local 3 was provided with a copy of that letter. Therefore, we also order Centerior to inform
Fishbach and Local 3 in writing that its prior letter barring Complainants has been ruled to
have been unlawful retaliation under the ERA, and that Fishbach and Local 3 should place the
Complainants at Centerior projects in the same manner as if Centerior's retaliatory letter had
never been issued.26 Of
course, Centerior retains the right to require that Sean McCafferty satisfy the terms of
reinstatement at Centerior applicable to him because of his misrepresentation regarding drug
use.
C. "Reinstatement"
Only Complainant Maloney was actually ordered by Centerior to be
removed from Perry; the other five Complainants were not working at a Centerior site at the
time of Centerior's retaliatory action. However, the ALJ ordered a form of
"reinstatement" for all the Complainants:
R. D. and O. at 15. Centerior objects to the ALJ's recommended reinstatement order because
"the Complainants are temporary outage workers and there is currently no outage . . .
." Res. Br. at 18-19.
Whatever "reinstatement" rights the Complainants had,
those rights have become moot with the passage of time. The outage during which the ALJ
ruled that Complainants were entitled to be placed at Perry has ended. Evidently so has the
outage at Davis-Besse.27
In any event, Complainants do not have an enduring right to be placed at Centerior projects;
what they do have is a right, protected by order of this Board (in both the Preliminary Order
and this Order), not to be barred from work at Centerior's nuclear projects in retaliation for
their protected activity. In this respect this case is similar to Van Beck v. Daniel
Construction Co., Case No. 86-ERA-26, Sec. Dec. and Rem. Ord., Aug. 3, 1993.
There, the ALJ recommended as part of the relief that if the type of work for which
Complainant had been hired had been completed at the nuclear site under construction, Daniel
Construction was to employ the Complainant at the site "in another position within his
capabilities . . . ." Slip op. at 5. The Secretary reversed this holding, agreeing with
Respondent's argument that the recommended remedy "effectively provides Complainant
with permanent employment, whereas his employment as a construction worker for a
contractor hired during the construction of the nuclear plant would have ended with
completion of plant construction." Id. Here Complainants were entitled,
at most, to employment during the 1995-96 Perry outage and the 1996 Davis-Besse outage.
Thus, there are now no positions to which Complainants are entitled to be
"reinstated."
D. Back Pay
It is well established that "the goal of back pay is to make the
victim[s] of discrimination whole and restore [them] to the position that [they] would have
occupied in the absence of the unlawful discrimination." Blackburn v.
artin, 982 F.2d 125, 129, citing Albermarle Paper Co. v. Moody, 422
U.S. 405, 421 (1975). With this principle in mind we evaluate the back pay due
Complainants.
The ALJ recommended significant amounts of back pay for the
Complainants.28
Centerior criticizes these recommendations on several grounds. Of greatest significance is
Centerior's argument that the ALJ erred in resolving in favor of the Complainants doubts
about when each of them would have begun and ceased work on the Perry outage. In order
to evaluate Centerior's objection we must discuss the facts relevant to the back pay issue.
Centerior began needing insulators for the Perry outage in mid-October
1995. A Fishbach official testified that prior to October 30, 1995, six Fishbach insulators
(including Maloney) had begun work at Perry. T. 278 (Cline). On October 30 that number
was increased to 11. Id. On December 22, 1995, the eleven insulators were laid
off for a holiday break in work at the facility. Id. at 279.29 These insulators were
brought back on January 2, 1996. Id. Between January 2 and February 11, 1996,
the number of insulators increased to 60. Id. at 280. Cline predicted that by
arch 11, 1996, gradual layoffs of insulators were to have begun and there were to have been
48 insulators remaining. Id. at 281. By March 18 that number was to have been
reduced to 36. By March 25 there were to have been 18 insulators remaining. Those
remaining 18 were to have been laid off by April 6, 1996. Id. at 280-281 (Cline).
The ALJ concluded that "[a]s Maloney was the fourth [insulator]
hired it can reasonably be assumed that he would have been one of the last eighteen on the
job." R. D. and O. at 17. Centerior does not challenge this finding, and we agree with
it. The ALJ also concluded that the other five complainants would have been among the first
11 insulators to be hired and the last 18 to be laid off:
R. D. and O. at 18-19. Centerior asserts the ALJ erroneously assumed that
"Complainants would always be the first insulators hired and the last laid off."30 Res. Br. at 19. Such an
assumption would be appropriate, Centerior argues, if the employer were in possession of
evidence that would --
Res. Br. at 19 (footnote omitted). We think that Centerior has misapprehended the
appropriate evidentiary burdens under the circumstances presented in this case.
It has repeatedly been held that uncertainties in establishing the amount
of back pay to be awarded are to be resolved against the discriminating party:
Lederhaus v. Paschen and Midwest Inspection Service, Ltd., Case No. 91-ERA-13, Sec.
Dec. and Ord., Oct. 26, 1992, slip op. at 6. See also, Creekmore v. ABB Power
Systems Energy Service, Case No. 93-ERA-24, ARB Dec. and Rem. Ord., Feb. 14,
1996, slip op. at 11; Hoffman v. Bossert, Case No. 94-CAA-4, ARB Dec. and
Ord., Jan. 22, 1997, slip op. at 2 (ALJ's conclusion that Complainant was entitled to back pay
reflecting layoff on earlier of two possible dates rejected because ALJ failed to apply the
principle that any uncertainties in calculating back pay are resolved in favor of the
complainant); Johnson v. Bechtel Constr. Co., Case No. 95-ERA-0011, Sec. Final
Dec. and Ord., Sept. 25, 1995, slip op. at 3; Nichols v. Bechtel Constr. Co., Case
No. 95-ERA-0044, Sec. Final Dec. and Ord., Nov. 18, 1993, slip op. at 5-6, aff'd sub
nom. Bechtel Constr. Co. v. Sec'y of Labor, 50 F.3d 926 (11th Cir. 1995)(Complainant
entitled to the presumption that he would have been the last worker laid off from Respondent's
crew).
Here we know that but for Centerior's retaliation Complainants would
have been placed at Perry some time in the late fall and would have been laid off some time
after mid-March (when layoffs began). Centerior seeks to place the blame for the lack of
certainty as to when Complainants would have worked at Perry on Complainants, asserting
that evidence which could have resolved that uncertainty was in Complainants' control.
However, it is unlikely that evidence establishing when each Complainant would have been
placed at Perry absent discrimination even exists. Insulators are referred to jobs by the Local
3 Business Manager based upon an ever-changing list that he keeps. It is not clear how the
list is maintained, but it does not appear that it is based upon seniority. In order to determine
precisely when each of the Complainants would have been referred to Perry it would be
necessary to reconstruct the Business Manager's list, inserting each Complainant in the list in
the position each would have occupied had Centerior not sent its retaliatory letter to Fishbach.
Even if it were possible to reconstruct the records, it was Centerior's burden to elicit the
information relevant to that effort.31 Therefore, we do not hesitate to agree with the ALJ's recommendation that
October 30, 1995, be used as the starting date for purposes of calculating back pay for the five
Complainants other than Maloney.
We turn next to the end date for purposes of back pay calculation. The
ALJ recommended back pay up to April 6, 1996; that portion of his order is amply supported
by the record. He also recommended back pay beyond that date. The R. D. and O.
recommended that Centerior be ordered to pay each Complainant "any wages he would
have earned from Centerior after April 6, 1996[,] but for the ban, minus any offset for
employment after April 6, 1996 (compensation minus expenses)." R. D. and O. at 18-20.
The foundation for this order was a finding that, but for Centerior's retaliatory barring
of Complainants, they would have been placed at Davis-Besse to work on the next outage.
R. D. and O. at 15.32
We are in agreement with the ALJ that if an outage began at Davis-Besse on or about April
8, 1996, as scheduled (see T. 112 (Scarl)), Complainants (other than Sean
cCafferty) would have been eligible to work that outage absent Centerior's retaliation.
However, there is no evidence in the record from which we can determine whether the
planned Davis-Besse outage occurred, how many Local 3 and other insulators worked that
outage, and when it ended.
Other assertions further cloud the picture of Complainants'
employment after April 6, 1996. On September 17, 1997, Complainants filed a Motion for
Supplemental Proceedings with the ALJ, alleging that insulators worked at Perry at least until
September 13, 1996, and requesting that further proceedings be scheduled "for the
purpose of calculating the amount of back pay due to each of the Complainants for the period
commencing April 7, 1996 and ending September 13, 1996." Motion at 2. The ALJ
denied that motion on the grounds that "a calculation of additional damages now would
necessarily lead to repetitive proceedings as additional calculations would be necessary when
the Administrative Review Board . . . finally ruled." Order Denying Motion for
Supplemental Proceedings, October 22, 1996, at 1. Moreover, the ALJ ruled, jurisdiction
over all aspects of the case other than attorney's fees issues was at that time vested in the
Board. Id. The ALJ advised Complainants to request the Board to remand the
matter to the ALJ for a hearing on supplemental damages after the Board issued its decision
on the merits. Id. Rather than requesting a remand for calculation of supplemental
damages, Complainants assert on review that insulators worked at Perry at least until
September 13, 1996, and that Complainant's back pay awards should be amended accordingly.
Complainants' Reply Br. at 18.
In retaliation cases such as this, "[t]he period of an employer's
liability ends when the employee's employment would have ended for reasons independent of
the violation found." Artrip v. Ebasco Services, Inc., Case No. 89-ERA-23,
ARB Dec. and Ord., Sept. 27, 1996, slip op at 3. See also, Blackburn v. Martin,
982 F.2d at 129; Blake v. Hatfield Elec. Co., Case No. 87-ERA-4, Sec. Dec.,
Jan. 22, 1992; slip op. at 14; Francis v. Bogan, Inc., Case No. 86-ERA-8, Sec.
Dec., Apr. 1, 1988, slip op at 6. We cannot determine based upon this record when, after
April 6, 1996, Complainants would have been lawfully terminated from their employment
with Centerior. It is impossible without additional facts to determine whether Complainants
would have continued to work at Perry after April 6, 1996, as they currently allege, or would
have been placed at the Davis-Besse outage, as the ALJ found. We concur with the ALJ's
order of October 22 that the appropriate means to deal with this issue is to remand the case
to him for further proceedings on the issue of damages, if any, to be awarded for the period
following April 6, 1996. Therefore, on remand the ALJ shall allow the parties to submit
evidence regarding what back pay, if any, the Complainants (other than Sean McCafferty) are
entitled to for the period following April 7, 1996. If the ALJ determines that any
Complainants would have been placed at the Davis-Besse outage or would have continued
working at Perry, back pay for those Complaints shall continue until the date Complaints
would have been layed off.
The back pay ordered here, together with the October 30, 1996
removal of denial of access flags, places the Complainants in the position they would have
been in absent Centerior's retaliation. They will have received back pay for the period they
were unlawfully barred from Centerior's nuclear facilities, and they are eligible for future
placement at these facilities. See Van Beck v. Daniel Construction Co., slip op.
at 5. We find one other significant problem with the ALJ's calculation of back pay. The
ALJ found that the average insulator at the Perry outage from January 2, 1996, until February
11, 1996, worked "29 straight time hours, 9 time and a half hours, and one double time
hour per week." R. D. and O. at 16. Yet he assumed that Maloney "would have
worked a full 40 hour straight time week and would have earned the overtime the average
insulator earned during that period, that is, 9 time and a half hours and one double time hour
per week. . . ." Id. at 16-17. He applied that formula to the other
Complainants as well.
The Secretary of Labor has approved using the average number of
hours worked by persons in similar positions as a basis upon which to calculate back pay.
See Hoffman v. Bossert, Case No. 94-CAA-4, ARB Dec. and Ord., Jan. 22, 1997,
slip op. at 2-3. However, that is not what the ALJ recommends here, because he would award
Complainants 40 straight time hours, whereas the average insulator would have worked 29
straight time hours. We can find no basis, either in the case law or in the facts of this case,
for the type of award calculation used in the R. D. and O. It appears from the uncontroverted
evidence in the record that the average insulation worker at the Perry Nuclear Plant worked
a total of 39 hours per week -- nine of which were at time and a half, and one of which was
double time -- between January 1 and February 11, 1996. That is all that the Complainants
are due for that time period. To award them more is to grant them a windfall which is not
supported by evidence in the record. We adjust the back pay awards accordingly.
Taking into account the issues we have dealt with above we provide
below the total back pay due each Complainant for the period October 1995 through April 6,
1996. Additional amounts of back pay may be due Maloney, Prohaska, Owen McCafferty,
cLaughlin, and Kilbane based upon the ALJ's recommendations regarding the period
following April 6, 1996.
1. Dennis Maloney
Had Maloney not been terminated on October 16, 1995, he would have
worked from that date until the projected end of the Perry outage, April 6, 1996. The R. D.
and O. correctly calculated that Maloney would have earned $12,592.00 for the period
October 16 through December 22. Maloney would have been laid off from December 23,
1995, until January 1, 1996. From January 2, 1996, through February 11, 1996, Maloney
would have worked six weeks. He would have earned a total of $8,405.16 for that period.33 For each of the eight
weeks between February 12 and April 6, 1996, Maloney would have worked 40 hours of
straight time and 20 hours of time and a half, for a total of $17,628.80.34 So Maloney would have
earned a total of $38,625.96 ($12,592.00 + $8,405.16 + $17,628.80 = $38,625.96) from
October 16, 1995, until April 6, 1996. Additional amounts of back pay may be due Maloney,
Prohaska, Owen McCafferty, McLaughlin, and Kilbane based upon the ALJ's
recommendations regarding the period following April 6, 1996.
We must subtract from that amount Maloney's earnings during that
period. Between October 1995 and February 1996 Maloney had earnings amounting to
$16,152.64. As the ALJ recognized (R. D. and O. at 17), Maloney's earnings from the date
of the hearing (February 27, 1996) until April 6, 1996, must also be subtracted. Maloney
incurred $3,150 in travel expenses he would not have otherwise incurred. That must be added
to the sum owed Maloney. Thus, for the October-April period Maloney is entitled to a net
of $25,623.32 ($38,635.96 - $16,152.64 + $3,150.00) minus the amount he earned between
February and April 1996. On remand the ALJ shall obtain documentation from Maloney
regarding his earnings for that period.
2. Robert Prohaska, Owen McCafferty, Terry McLaughlin,
Sean Kilbane
The ALJ correctly found that Prohaska, Owen McCafferty,
cLaughlin, and Kilbane would have worked at Perry from October 30, 1995 until at least
April 6, 1996. The ALJ correctly found that these four Complainants would have earned
$10,073.60 each for the eight weeks between October 30, 1995, and December 22, 1995.35 These four Complainants
would have been laid off from December 23, 1995, until January 1, 1996. From January 2,
1996, through February 11, 1996, these four Complainants would have worked six weeks,
earning a total of $8,405.16 each for that period.36 For the eight weeks
between February 12 and April 6, 1996, each of these four Complainants would have worked
40 hours of straight time and 20 hours of time and a half, for a total of $17,628.80.37 So each would have
earned a total of $36,107.56 ($10,073.60 + $8,405.16 + $17,628.80 = $36,107.56) from
October 30, 1995 until April 6, 1996.
We must subtract from that amount the four Complainants' earnings,
which were as follows for the period October 30, 1995-February 27, 1996: Prohaska,
$19,139.84 (minus living expenses of $3,000.00); Owen McCafferty, $20,147.20;
cLaughlin, $13,599.56; Kilbane, $24,176.64. Thus, for the October-April period Prohaska
is entitled to $19,967.72 ($36,107.56 - $19,139.84 + $3,000.00) minus the amount he earned
between February and April 1996. For the October-April period Owen McCafferty is entitled
to $15,960.36 ($36,107.56 - $20,147.20) minus the amount he earned between February and
April 1996. For the October-April period McLaughlin is entitled to $22,508.20 ($36,107.56 -
$13,599.56) minus the amount he earned between February and April 1996. For the same
period Kilbane is entitled to $11,930.92 ($36,107.56 - $24,176.64) minus the amount he
earned between February and April 1996. On remand the ALJ shall obtain documentation
from Prohaska, Owen McCafferty, McLaughlin, and Kilbane regarding their earnings for the
February - April 6, 1996 period.
3. Sean McCafferty
Sean McCafferty is entitled to back pay for the period October 30,
1995 through February 26, 1996, when Centerior is determined to have learned of
cCafferty's misrepresentation on his self-disclosure form. For the period October 30
through December 22 he would have earned $10,073.60.38 He would have been laid
off from December 23, 1995, until January 1, 1996. Between January 2 and February 11,
1996, he would have earned $8,405.16.39 For the period February 12 through February 26, 1996, McCafferty is
entitled to $4,407.20.40
Thus, Sean McCafferty is entitled to a total of $22,885.96 ($10,073.60 + $8,405.16 +
$4,407.20). From that amount must be subtracted McCafferty's earnings of $6,552. His net
back pay due for the period October 30 through February 26, 1996, therefore is $16,333.96.
4. Effect of the Preliminary Order on Back Pay
Award
When determining on remand the amount each Complainant is due in
back pay for the entire period, the ALJ must take into account that pursuant to the Preliminary
Order issued July 15, 1996, Centerior has paid to Complainants a total of $138,012.16 in back
pay (plus interest of $8,289.72). Letter from Mary E. O'Reilly to Steven D.
Bell, October 30, 1996, and letter from Mary E. O'Reilly to Steven D. Bell, November 6,
1996. Thus, $138,012.16 should be subtracted from the total back pay owed by Centerior.41
E. Interest
Interest shall be assessed on any additional back pay due. Interest shall
be calculated in accordance with 26 U.S.C. §6621 (1988). Blackburn v. Metric
Constructors, Inc., Case No. 86-ERA-4, Sec. Dec. and Ord., Oct. 30, 1991. As noted
above, Centerior has already payed $8,289.72 in interest. That amount should be subtracted
from the total interest owed by Centerior.42
F. Attorney's Fees
The ALJ recommended that Centerior pay Complainants' counsel
$36,063.00 for attorney's fees and ,867.43 for expenses.43 According to the
uncontested testimony of Complainant Maloney, each of the Complainants agreed to pay
Complainants' counsel $5,000.00 in attorney's fees in return for counsels' handling of the case
from filing the administrative complaint through any appeal to the U. S. Supreme Court. T.
56-57. Thus, Complainants as a group obligated themselves to pay $30,000 in attorney's fees
for litigation of this case. Centerior argues that the wording of the ERA employee protection
provision requires that Complainants' agreement operate as a cap on fees that Centerior is
required to pay, and that therefore the attorney's fees award should be reduced from $36,063
to $30,000. Supplemental Brief of Respondent Centerior Energy on Award of Attorney Fees
(Res. Supp. Br.) at 3-4. The ALJ rejected this claim. Order Regarding Attorney Fee
Application, August 20, 1996 (O. R. A.) at 3-4. For reasons discussed below, we think
Centerior has the better argument.
Centerior bases its position on the language of the ERA employee
protection provision, which states in pertinent part:
42 U.S.C. §5851(b)(2)(b) (1994). Centerior urges that because Complainants had
agreed to pay a maximum of $30,000 for the handling of their case, attorney's fees above that
agreed-upon amount cannot be expenses "reasonably incurred . . . by
the complainant[s]". Res. Supp. Br. at 3.
The "reasonably incurred . . . by the complainant"
language contained in the ERA is also found in the employee whistleblower provisions of the
Toxic Substances Control Act, 15 U.S.C. §2622(b)(2)(B) (1988); the Safe Drinking
Water Act, 42 U.S.C. §300j-9(a)(2)(B)(ii) (1988); and the Clean Air Act, 42 U.S.C.
§7622(b)(2)(B) (1988). Similar language is found in the Water Pollution Control Act,
33 U.S.C. §1367(c) (1988); the Solid Waste Disposal Act, 42 U.S.C. §6971(c)
(1988); and the Comprehensive Environmental Response, Compensation, and Liability Act,
42 U.S.C. §9610(c) (1988).44 Many other attorney's fees provisions contained in federal statutes simply
award reasonable attorney's fees without reference to whether the fees were incurred by
the complainant. In interpreting those provisions the courts have held that reasonable
attorney's fees are to be awarded to the prevailing complainant without regard to the private
fee arrangement between complainant and his or her attorney. See Blanchard v.
Bergeron, 489 U.S. 87 (1989). The question we must resolve here is
whether, because Congress in the ERA used the limiting language "incurred . . . by
complainant," the fee arrangement between the Complainants and their counsel operates
as a cap on the fees award.
We think the rules of statutory construction dictate that we read
"incurred . . . by complainant" to act here as a ceiling on the award of fees. As
we have emphasized elsewhere in this decision, the plain meaning of a statutory provision
almost always controls. Here we have a phrase which is not open to two equally plausible
interpretations. The ordinary meaning of "incur" is "to come into or
acquire" or to "become liable or subject to through one's own action."
Webster's New World Dictionary, Third College Ed., 1988. Here Complainants
have only become liable or subject to $30,000 in attorney's fees, win or lose, no matter how
much their case is litigated. We would have to ignore the specific language in the statute to
reach the conclusion that Centerior is liable to pay more than Complainants can ever be liable
for.
There is no easy explanation for Congress' choice of words in this
provision. There is no apparent reason for Congress to limit attorney's fees awards under
some circumstances in environmental and nuclear whistleblower cases and not in civil rights
cases, for example.45
And we are mindful that statutory provisions such as this are to be liberally construed.
However, when the language of a provision is as clear as it is here, and where giving that
language its ordinary meaning is not totally at odds with the purpose of the statute, we are
constrained to follow it. Therefore, we conclude that the attorney's fees award in this case
has a ceiling of $30,000.46
We conclude that the reasonable attorney's fees in this case are over
the $30,000 fee agreed upon by the Complainants and their counsel. "The most useful
starting point for determining a reasonable fee," the Supreme Court said in Hensley
v. Echerhart, 461 U.S. 424, 433 (1983), "is the number of hours reasonably
expended on the litigation multiplied by a reasonable hourly rate." This is generally
referred to as the "lodestar." Copeland v. Marshall, 641 F.2d 880,
891 (D.C. Cir. 1980). Complainants requested attorney's fees at the rate of $250.00 per hour
for attorney Bell, $120.00 per hour for attorney Rogozinski, and $80.00 per hour for paralegal
Schultz, based upon an affidavit of attorney Bell that attorneys in Cleveland, Ohio, are
customarily compensated at those rates, and that Bell's current billing rate for certain matters
is $250.00 per hour.47
Centerior initially objected to the hourly rates before the ALJ because it argued that there was
insufficient support in the record for the hourly rates proposed by Complainants. In response
to that objection the ALJ ordered Complainant to submit additional evidence on the
appropriate hourly rate. Complainant then submitted the affidavit of another Cleveland, Ohio,
attorney which affirmed that "the hourly rate of each attorney and paralegal as
represented in the Invoice is consistent with the hourly rates charged by other law firms for
attorneys and paralegals of similar levels of experience." Supp. Mat. Tab D. Based
upon that affidavit the ALJ accepted the requested hourly rates. Centerior has not here
renewed its objection to the hourly rates requested by Complainants, and we accept them.
Centerior objected to several of the specific fees requests, and the ALJ
granted some of those objections. See R. D. and O. II at 2-3. Centerior objected
below to the assessment of 23.4 hours for reviewing the transcript after the hearing. The ALJ
overruled that objection, stating that although "the time on its face appears excessive,
it may not be if the time was devoted to preparation of the post hearing brief." R. D.
and O. II at 3. We disagree with this conclusion. Complainants' counsel separately accounted
for hours spent preparing the post hearing brief. Therefore we must assume that the 23.8
hours were actually spent on reviewing the transcript. The hearing in this case lasted
approximately six and one half hours. We conclude that time in excess of 13 hours to review
the transcript is not reasonable. We therefore reduce attorney Bell's hours by 2.5, and
attorney Rogozinski's hours by 7.5.
Centerior also objected to the ALJ's award of attorney's fees relating
to a meeting with the Nuclear Regulatory Commission. The ALJ ruled that it was not evident
that the meeting, for which 3.6 hours of attorney's fees were claimed, was not related to this
case. R. D. and O. II at 2. Centerior argues that there is no "proof that this time
related to the Department of Labor proceeding." Res. Supp. Br. at 5.
We agree with Centerior's contention. Attorney's fees are to be
awarded for expenses reasonably incurred "for, or in connection with, the bringing of
the complaint upon which the order was issued." 42 U.S.C. §1561(b)(2)(B)
(1994). Complainants were moving on several fronts in late October and early November
1995, bringing their action at the Department of Labor, pursuing a union grievance, and
proceeding with their Price-Anderson Act claim in federal district court. It was incumbent
upon them to articulate the connection between their NRC meeting and this litigation. In the
absence of a showing of that connection we disallow 2.3 hours of attorney Bell's time and 1.3
hours of attorney Rogozinski's time.
Finally Centerior objects to the "3.2 hours claimed for the
drafting [of] a three sentence letter. Res. Supp. Br. at 5. We agree with the ALJ on this
claim, that research regarding the filing of the letter might have accounted for the time
allotted.
In summary, we conclude that the reasonable attorney's fees earned
in this case is $33,807.00 ($36,063.00 recommended, minus $1200.00 for attorney Bell [4.8
hours x $250.] and minus $1056.00 for attorney Rogozinski [8.8 hours x $120.]). Because
that amount is over the cap, we reduce the award to $30,000. In addition reasonable expenses
in the amount of ,867.43 are awarded, consistent with the ALJ's recommendation.
1. Centerior shall remove the denial of access flags placed on
Complainants' records as a result of their protected activity.48
2. Centerior shall notify Fishbach Power Services and Local 3 in
writing that its letter dated October 13, 1995, barring Complainants from work at Centerior's
nuclear facilities at least until Complainants' federal district court litigation was completed has
been ruled by this Board to have been unlawful retaliation under the ERA. Centerior shall
inform Fishbach and Local 3 that they should place the Complainants at Centerior projects in
the same manner as if Centerior's retaliatory letter had never been issued.
3. Centerior shall pay Complainant Dennis Maloney back pay for the
period October 16, 1995, through April 6, 1996, in the amount of $25,623.32, minus the
amount he earned between February and April 1996, plus interest calculated according to 26
U.S.C. §6621 (1988).
4. Centerior shall pay Complainant Robert Prohaska back pay for the
period October 30, 1995, through April 6, 1996, in the amount of $19,967.72, minus the
amount he earned between February and April 1996, plus interest calculated according to 26
U.S.C. §6621 (1988).
5. Centerior shall pay Complainant Owen McCafferty back pay for
the period October 30, 1995, through April 6, 1996, in the amount of $15,960.36, minus the
amount he earned between February and April 1996, plus interest calculated according to 26
U.S.C. §6621 (1988).
6. Centerior shall pay Complainant Terry McLaughlin back pay for
the period October 30, 1995, through April 6, 1996, in the amount of $22,508.20, minus the
amount he earned between February and April 1996, plus interest calculated according to 26
U.S.C. §6621 (1988).
7. Centerior shall pay Complainant Sean Kilbane back pay for the
period October 30, 1995, through April 6, 1996, in the amount of $11,930.92, minus the
amount he earned between February and April 1996, plus interest calculated according to 26
U.S.C. §6621 (1988).
8. Centerior shall pay Complainant Sean McCafferty back pay for the
period October 30, 1995, through February 26, 1996, in the amount of $16,333.96, plus
interest calculated according to 26 U.S.C. §6621 (1988).
9. Centerior is liable to Complainants' attorneys for $30,000.00 in
attorney's fees and ,867.43 in expenses. Centerior apparently has already paid
Complainants $37,930.43 in attorney's fees and expenses in compliance with our
Supplemental Preliminary Order. Letter from Mary E. O'Reilly to Steven D. Bell, December
11, 1996. If this is the case, Complainants' attorney shall return to Centerior $6,063.00.
10. This case is remanded to the ALJ to determine the amount of back
pay plus interest, if any, due Complainants Maloney, Prohaska, Owen McCafferty,
cLaughlin, and Sean Kilbane for period following April 6, 1996. The parties shall have an
opportunity to submit evidence on the remanded issues.49
SO ORDERED.
DAVID A. O'BRIEN
KARL J. SANDSTROM
JOYCE D. MILLER
1 Centerior Energy
Corporation is the holding company of Cleveland Electric Illuminating Company, Toledo Edison
Company and Centerior Service Company. Cleveland Electric Illuminating Company and
Centerior
Service Company are licensed by the Nuclear Regulatory Commission (NRC) to operate the
Davis-Besse Nuclear Power Station. The ALJ referred to these companies collectively as
"Centerior," and we will do the same.
2 Prior to 1992 the
employee protection provision of the ERA was denominated Section 210. In 1992 the
Comprehensive
National Energy Policy Act (CNEPA), Pub. L. No. 102-486, 106 Stat. 2776 (Oct. 24, 1992),
amended
Section 210 and renumbered it as Section 211. For the sake of convenience we will refer to the
provision as Section 211.
3 On July 25, 1996,
Complainants filed an action in the United States District Court for the Northern District of Ohio
Eastern Division, seeking enforcement of the Preliminary Order pursuant to Section 211(e) of the
ERA,
42 U.S.C. §5851(e) (1994). The following day Centerior filed with the Board a Motion to
Stay
Preliminary Order. On October 16, 1996, the Board denied Centerior's motion. Nothing in the
record
of this case indicates the outcome of Complainants' district court litigation.
4 Complainants are
members of Local 3 of the Heat and Frost Insulators and Asbestos Workers Union in Cleveland,
Ohio.
R. D. and O. at 3. There is a limited amount of evidence in the record regarding how union
members
are hired by contractors. It appears that employers request workers from Local 3, which refers
qualified workers based upon a list of available union members. Workers rise to the top of the
Local
3 list, and thus become eligible for placement, as workers higher on the list are placed in jobs.
When
there is more demand for insulators than are available locally, out of town insulators who are
members
of the Asbestos Workers Union ("travelers") are referred by the local. See
Transcript (T.) 106-122 (Scarl); T. 38-40 (Maloney); T. 278-280 (Cline).
5 As we discuss
below, Complainant Sean McCafferty was barred from the Davis-Besse site in November 1994
for
reasons unrelated to the unplanned exposure.
6 Section 2210(n)(2)
of the Price-Anderson Act provides in pertinent part:
7 "Whole body
count" is the result of a bioassay which determines the level of radioactive material, if any,
a new
worker is bringing with him to his job. It allows the employer to establish a baseline prior to the
incoming employee being exposed to radioactivity. R. D. and O. at 5.
8 Centerior has a
policy designed to reduce overall exposures of workers to radiation --
T. 146-147 (Volza).
9 A "nuclear
incident" is defined in the Price-Anderson Act as:
42 U.S.C. §2014(q) (1988).
10 An
"extraordinary nuclear occurrence" is defined as:
42 U.S.C. §2014(j) (1988).
11 Under the terms
of the 1988 Amendments Act, the "public liability action" encompasses "any
legal
liability" of any "person who may be liable" on account of a nuclear incident.'
TMI II, 940 F.2d at 854.
12 See Kansas
Gas & Electric Co. v. Brock, 780 F.2d, 1505, 1510 ( 10th Cir. 1985) (meaning of
"proceeding or any other action in §211 is unclear"). See also Passaic
Valley
Sewerage Comm. v. U.S. Dept. of Labor, 992 F.2d 474, 478 (3d Cir. 1993) (meaning of
"proceeding" under similar Clean Air Act provision ambiguous).
13 Congress partly
resolved the ambiguity regarding internal complaints by amending the ERA to include a specific
provision relating to those complaints. See 42 U.S.C. §5851 (1994).
14 Indeed, Centerior
concedes that "Section 211 can be read hyper-literally to apply to a claim under the
Price-Anderson Act (because the Price-Anderson Act happens to be part of the Atomic Energy
Act and 1988
amendments to Price-Anderson happened to allow consolidation of claims in federal court) . . .
."
Brief of Respondent Centerior Energy (Res. Br.) at 5.
15 Section 211, as
amended by the CNEPA, provides in pertinent part:
42 U.S.C. §5851(C) and (D) (1994). For a discussion of the change in burden of proof
contained
in this statutory language, see Dysert v. Florida Power Corp., Case No. 93-ERA-21,
ARB
Dec. and Ord., Aug. 7, 1995.
16 In this respect the
ALJ has misarticulated the burdens of persuasion that are applicable in an ERA case. See,
e.g., R. D. and O. at 11
17 Centerior
emphasizes that Maloney vacillated when asked at the hearing whether he agreed with
Centerior's
respirator philosophy, and indicated that he might ask for another assignment if asked to work in
an area
in which there would be a planned exposure to radioactivity. Res. Br. at 14. However,
aloney's
testimony at hearing about how he feels now about radioactivity and Centerior's respirator policy
cannot
be used to prove that at the time it barred Maloney it had good reason to do so. The fact is that
Centerior officials made no attempt to find out how Maloney or any of the other Complainants
felt about
working in radioactive atmospheres before they barred them.
18 Apparently
Centerior's Schrauder thought Complainants were qualified for insulator work at Perry, as he
found
it necessary explicitly to inform Fishbach that they should not be placed at Perry because of their
federal
Price-Anderson Act litigation.
19 There are two
cCafferty Complainants, Owen and Sean. We refer here to Sean.
20 It appears that
Centerior learned of McCafferty's misrepresentation while preparing for hearing in this case.
21 McCafferty
testified: "That's what they told me upon leaving the [Davis-Besse] plant, if I had the
assessment
done that I would be reinstated." T. 268.
22 The interchange
which prompted the ALJ's conclusion on this point is:
T. 268 (Sean McCafferty).
23 As our finding
here is based on the substance of McCafferty's testimony itself, as opposed to his demeanor, we
do not
need to accord the ALJ's contrary finding exceptional weight. See Frady v. Tennessee Valley
Authority, Case Nos. 92-ERA-19, 92-ERA-34, Sec. Dec. & Ord. of Remand, Oct. 23, 1995,
slip
op. at 7.
24 As we discuss
below, reinstatement is not appropriate for any of the Complainants in this case, so we need not
discuss
that form of relief here. However, as the Supreme Court has suggested in McKennon,
reinstatement would not normally be appropriate in after-acquired evidence cases such as
cCafferty's.
McKennon v. Nashville Banner Pub. Co., 130 L.Ed.2d at 863.
25 The Board ordered
those flags removed. P. O., slip op. at 3. On October 30, 1996, Centerior notified the Board and
the
parties that the flags had been removed. Letter to Steven D. Bell from Mary E. O'Reilly, dated
October 30, 1996.
26 Complainants are
not entitled to preferential treatment, however they are entitled to be placed in accordance with
normal
union and contractor processes.
27 Neither
Complainants nor Centerior explicitly address this issue. Centerior stated in its Motion to Stay
Preliminary Order dated July 26, 1996, that "[t]here is no ongoing or scheduled outage at
either
of Centerior's nuclear power plants . . . ." Motion to Stay at 12. Complainants did not
respond
to this claim. Complainants' Brief in Opposition to Centerior Energy's Motion to Stay
Preliminary
Order, August 14, 1996.
28 The Board
preliminarily ordered that relief pursuant to the amended provisions of Section 211. P. O. at 2-3.
29 Centerior asserts
that "the ALJ erred in assuming that insulators hired in October 1995 would have worked
through
December 22 . . . . The record shows that insulators who were hired in October were laid off on
December 18." T. 278. In fact, Cline, Centerior's witness, used both dates. See T.
278 (December 18) and T. 279 (December 22). In light of this contradictory testimony it was
reasonable for the ALJ to select the December 22 date, which fell at the end of a workweek.
30 This claim is not
quite accurate. Complainants (other than Maloney) were assumed to be among the early hires
and late
layoffs.
31 The Union local's
business manager testified and could have been cross examined on this point.
32 This finding also
formed the basis for the ALJ's order of "reinstatement":
R. D. and O. at 15.
33 Maloney would
have worked 29 straight time hours at $31.48 for six weeks ($5,477.52); nine time and a half
hours at
$47.22 for six weeks ($2,549.88); and one double time hour at $62.96 for six weeks ($377.76).
34 Maloney would
have worked 40 straight time hours at $31.48 for eight weeks ($10,073.60); and twenty time and
a half
hours at $47.22 for eight weeks ($7,555.20).
35 These four
Complainants would have worked 40 straight time hours at $31.48 for eight weeks ($10,073.60).
36 Each of them
would have worked 29 straight time hours at $31.48 for six weeks ($5,477.52); nine time and a
half
hours at $47.22 for six weeks ($2,549.88); and one double time hour at $62.96 for six weeks
($377.76).
37 Each of them
would have worked 40 straight time hours at $31.48 for eight weeks ($10,073.60); and twenty
time and
a half hours for eight weeks ($7,555.20).
38 Sean McCafferty
would have worked 40 straight time hours at $31.48 for eight weeks ($10,073.60).
39 Sean McCafferty
would have worked 29 straight time hours at $31.48 for six weeks ($5,477.52); nine time and a
half
hours at $47.22 for six weeks ($2,549.88); and one double time hour at $62.96 for six weeks
($377.76).
40 Forty straight time
hours at $31.48 for two weeks, ($2,518.40); plus 20 time and a half hours at $47.22 for two
weeks
(,888.80).
41 In the event that
no additional back pay is owed by Centerior for the period following April 6, 1996, the ALJ
should
determine the amount, if any, that Centerior has overpaid the Complainants and recommend that
amount
be repaid.
42 In the event that
no additional interest is owed by Centerior for the period following April 6, 1996, the ALJ
should
determine the amount, if any, that Centerior has overpaid the Complainants and recommend that
amount
be repaid.
43 In its December
3, 1996 Supplemental Preliminary Order, the Board preliminarily ordered Centerior to Pay to
Complainants' counsel the sum of $37,930.43.
44 These statutes
refer to "reasonably incurred by the applicant."
45 Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §2000e et seq. (1988), and the Civil Rights Attorney's
Fees
Act, 42 U.S.C. §1988 (1988), for example, do not contain this limiting language.
46 Although our
holding will affect Complainant's counsel in this case, we do not foresee this decision having
wide
ranging effect. Complainants and their counsel will be able to establish fee arrangements which
avoid
the possibility of fees being limited.
47 Complainants later
sought fees at the rate of $125.00 per hour for attorney Mischka. Supplemental Materials in
Support
of Motion for Award of Attorney Fees and Expenses (Supp. Mat.), September 4, 1996.
48 Centerior has
removed these flags pursuant to our Preliminary Order. See n. 25 above. This order
finalizes our earlier order.
49 Centerior has
already paid $146,301.91 in back pay and interest in compliance with the Board's Preliminary
Order.
On remand, should the total back pay and interest as calculated by the ALJ amount to more than
$146,301.91 Centerior will be liable to Complainants for the difference. Should the total amount
to less
than $146,301.91 Complainants will be liable to Centerior for the difference.
RESPONDENT.
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Chair
Member
Alternate Member