ML19294A619
| ML19294A619 | |
| Person / Time | |
|---|---|
| Site: | Callaway  |
| Issue date: | 02/23/1979 |
| From: | Duflo M NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| ALAB-527, NUDOCS 7903070566 | |
| Download: ML19294A619 (38) | |
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ATOMIC SAFETY AND LICENSING APPEAL BOARD g
b Alan S.
Rosenthal, Chairman Cb Michael C.
Farrar Richard S. Salzman SERWED FEB 2 71979
)
In the Matter of
)
)
UNION ELECTRIC COMPANY
)
Construction Permit
)
Nos. CPPR-139 (Callaway Plant, Units 1 and 2)
)
CPPR-140
)
Mr. Wm. Bradford Reynolds, Washington, D.
C.,
argued the cau.se for the Union Electric Co.,
licensee; with him on the briefs was Mr. Gerald Charnoff, Washington, D. C.
Mr. Michael H.
Bancroft, Washington, D.
C., argued the cause for William Smart, intervenor; with him on the briefs was Mrs. Diane B. Cohn, Washington, D. C.
Mr. James P. Murray argued the cause and filed a brief for the Nuclear Regulatory Commission staff.
DECISION February 23, 1979 (ALAB-527)
Opinion of the Board by Mr. Salzman, in which Messrs. Rosenthal and Farrar join:
The firing of a Callaway construction worker has gener-ated two questions:
May the Commission suspend a construction permit until the builder cooperates with an NRC investigation 7903 07054fo
. into whether the workman was discharged in rctaliation for reporting allegedly unsafe construction practices to NRC inspectors?
If the employee was fired for "whistleblowing",
may the NRC act to get him his job back?
The Licensing Board answered "yes" to the first question but declined to reach the second. 1/
Both the licensee and the employee involved appeal.
We affirm.
I.
1.
Background.
The facts are stipulated.
! The Commission has licensed Union Electric Company to construct the Callaway nuclear-powered electric generating facility. 3/
Union Electric engaged Daniel Construction Company to build part of the plant; William Smart was among the ironworkers Daniel hired for the Callaway project.
A number of times while working there, Mr. Smart reported to NRC inspectors what he considered safety-related deficiencies in Daniel's work.
On March 21, 1978, Daniel fired him.
_1/ LBP-78-31, 8 NRC 366 (September 28, 1978).
_2/ The stipulation, adhered to by all parties, appears in full in the opinion below.
8 NRC at 368, fn.
2.
Unless otherwise noted, the facts recited are from that source.
--3/ See LBP-75-47, 2 NRC 319 (1975), and LBP-76-15, 3 NRC 445, affirmed, ALAB-347, 4 NRC 216,
. Mr. Smart promptly had his union initiate grievance proceedings under its " Project Agreement" with the construc-tion company. 1/
The grievance was eventually referred to binding arbitration under the terms of that agreement.-5/
On March 30, the NRC staff opened an investigation into whether Daniel had fired Mr. Smart in retaliation for his reporting the company to the NRC safety inspectors.
Daniel, however, refused to allow the NRC inspectors either to inspect its relevant personnel records or to interview company employees knowledgeable about the discharge.
Daniel's refusal was brought to Union Electric's attention, but the utility did not instruct its contractor to allow the staff investigators the access they sought.
2.
The proceedings below.
On April 3, 1978, the NRC Director of Inspection and Enforcement issued an " Order to Show Cause" why the Callaway construction permits should
_i/ Formally titled " Project Agreement, Union Electric Company, Callaway Nuclear Units 1 and 2, Callaway County, Missouri", it was entered into by Daniel Con-struction Co. and unions representing workmen on the Callaway Project, including Mr. Smart's union, the International Association of Bridge, Structural and Ornamental Iron Workers.
The licensee provided copies of the Project Agreement to all parties at our request.
_5/ See Project Agreement, Article VII.
_4_
not be suspended. 5!
The order recited that staff investi-gators had sought access to the records and personnel men-tioned to determine whether: (1) Mr. Smart was discharged for reporting asserted construction deficiencies that might jeopardize public health and safety; (2) the commission should issue regulations encouraging workmen to report unsafe construction practices and forbidding employer retal-iation for doing so; and (3) potentially unsafe conditions at Callaway are going unreported because of the " chilling effect" of Mr. Smart's discharge.
The Director concluded that public health and safety considerations made the investigatien necessary and that it could not be conducted effectively unless Daniel yielded access to the sought information.
Accordingly, he gave Union Electric twenty days to "show cause" why the Callaway construction permits should not be lifted pending Daniel's cooperation with his investigators.
Union Electric responded by challenging the Director's right to conduct the investigation and demanding a hearing on the show cause order should its response be rejected.
6/ Such orders are governed by Subpart B of Part 2 of the Commission's Rules of Practica, 10 C.F.R. 882.200 et sec.
-^
The Director's action in this case was authorized by 10 C.F.R. 82.202.
. The Commission granted Union Electric's demand for a hear-ing, instructing the Licensing Board (subject to our review) to determine:
(1) whether the Commission in its investigation was denied access to records and personnel relating to the termination of a worker who had alleged construction problems which if uncorrected could lead to unsafe conditions in an activity licensed by the Commission; (2) whether Construction Permits No. CPPR-139 and No. CPPR-140 should be suspended until such times as the Licensee, including its employees, agents and contractors engaged in activities under the license, submits to investigations and inspections as the Commission deems necessary and as authorized by the Atomic Energy Act of 1954, as amended, in the Commission's regulations; and (3) whether the NRC should defer its investiga-tion to the ongoing grievance proceeding between the worker and the contractor here involved._7/
Mr. Smart, the discharged workman, was allowed to intervene in the proceeding.
The Licensing Board accepted the parties' stipulated accoant of the relevant facts and based its decision upon it. S!
_2/ See Notice of nearing, 43 Fed. Reg. 21389 (May 17, 1978).
_8/ See fn.
2, supra.
. 3.
The Licensine Board's decision.
On September 23th the Licensing Board held, first -- as stipulated by the parties -- that the Commission was denied access to records and personnel relating to the discharge of a workman who had alleged the existence of unsafe conditions at the Callaway construction site, thereby answering yes to the first question posed by -he Commission.
8 NRC at 371.
The Board below also responded affirmatively to the second question -- whether the construction permits should be suspended until the contractor submits to the investigation.
It reasoned that the Commission has a mandate under the Atomic Energy Act to protect the public health and safety from the activities of Commission licensees.
As one means of achieving that end, the Act expressly authorizes the Commission to investigate licensed activities and to obtain information from licensees.
In this case, the Board found that the essential purpose of the investigation was to learn whether Union Electric was building the Callaway nuclear power plant to be safe, in accordance with the Commission's approved design.
Deeming that aim in furtherance of the Commission's statutory' responsibilities, the Board held that the investication was authorized.
Id. at 371-76.
. The Board rejected the utility's contentions that the NRC's investigating authority is limited where a
" labor dispute" is involved, that a judicial warrant is necessary to carry out the investigation, and that the investigation should abide the outcome of the pending grievance proceeding.
As to the last -- the third question posed by the Commission -- the Board rejected the utility's fear that the investigation might impair the grievance proceeding, ruling that safety considerations overrode any potential labor relations problems.
Id. at.377-78.
Accordingly, the Board authorized the Director of Inspection and Enforcement to suspend construction of the Callaway facility until the utility and its contractor submitted to
~
the investigation.
Id. at 379.
Mr. Smart had also asked for a ruling on the Commission's authority "to protect a construction worker fired for making safety complaints to the NRC",
i.e.,
to order his reinstatement if fired in retaliation for such activities.
In intervenor's view, this issue was " implied" in the Commission's notice of hearing.
The Board, however, declared it outside the scope
. of the matters referred to it by the Commission and there-fore "beyond its jurisdiction".
Id. at 370-71.
4.
Subsequent events bearing on the case.
(a)
The utility sought a stay of the Licensing Board's decision pending completion of our appellate review.
That relief became unnecessary when, at our suggestion, the parties agreed on interim arrangements accommodating their respective interests without compromising the public's.
That agreement, set out elsewhere, is summarized in the margin. 1!
(b)
On November 1, 1978, the grievance proceeding between Mr. Smart's union and Daniel Electric terminated in the employee's favor.
The arbitrator concluded "that the Company did not sustain its burden of showing that
--9/ See ALAB-503, 8 NRC 400, 403 (1978).
In essence, the agreement gave the NRC investigators immediate access to Daniel's records and personnel, subject to the condi-tions that all information obtained therefrom is to be held in confidence -- disclosed only to persons on the Director of Inspection and Enforcement's staff and staff counsel -- until 15 days after we decide this appeal (unless after a hearing on notice we directed otherwise) and not used in connection with this appeal or further proceedings respecting it before the Commis-sion or a court; that the Director not exercise the permit suspension authority conferred by the Licensing Board during the pendency of this appeal and for 15 days thereafter; and, finally, that no legal arguments or other issues raised by the exceptions are waived by entering into the agreement.
. it discharged Mr. Smart for failing to follow a Foreman's order" and therefore ordered him " reinstated with back pay and all incidents of employment that would have been 10/
his from March 21, 1978 onward."--
In the course of his opinion the arbitrator observed that, "[a]t the hearing, the Company took pains to avoid the issue of whether its discharge was motivated by Mr. Smart's actitivities in relation to the Nuclear Regulatory Commission."-11/
For this reason the arbitrator refused to consider whether that ground either provided good cause for the discharge or justified not reinstating Mr. Smart in his former employment.--12/
According to intervenor's counsel,
"[oln November 15, 1978, Mr. Smart returned to work for Daniel Construc' tion Co. (Daniel) on the Callaway nuclear 13/
plant construction project. "--
(c)
On November 6, 1978, Congress added a new section to the Energy Reorganization Act of 1974 entitled
--10/
On November 17, 1978, intervenor filed and served a copy of the arbitrator's formal Opinions and Award (FMCS Case No. 78k/17143) as Exhibit 1 to William Smart's Notice of His Reinstatement.
In the absence of any objection, we take official notice of the arbitrator's decision.
11/
Id. at 14.
12/
Id. at 14 and 15.
13,/
William Smart's Notice of His Reinstatement at 1; see fn.10, supra.
" Employee Protection."bd!
Modeled on similar provisions in other legislation,b5/ the new section applies to NRC licensees and license applicants, their contractors and subcontractors.
It prohibits them from discharging or otherwise discriminating against employees who assist or testify in any action or proceeding designed to carry out the purposes of the Atomic Energy Act.
If an employee alleges a violation of his rights under the section, the Secretary of Labor may investigate and order appropriate redress.
II.
1.
As the question before us arises under the Atomic Energy Act of 1954, we start our search for the answer with the terms of that statute.b5[
In it, Congress decreed that
" regulation by the United States of the production and
--14/ Section 10 of P.L.95-601, 95th Cong., 2nd Sess. (1978),
92 Stat. 2951, 4 2 U. S.C.
95851.
(The legislation desig-nates the new provision as "section 210", apparently overlooking existing section 210, 91 Stat. 1482, 42 U.S.C.
85850, added December 13, 1977).
--15/ See S.
Rep. No. 9 5-8 4 8, 95th Cong., 2nd Sess. 29 (1978),
citing among other similar legislation, the Clean Air Act Amendments of 1977, 42 U.S.C.
87622.
16/ 68 Stat. 919, as amended, 42 U.S.C.
552011 et sec.
. utilization of atomic energy and of the facilities used in conjunction therewith is necessary * *
- to protect the
-17/
health and safety of the public." -'
That regulatory obli-18/
gation has devolved on this Commission.--
The Atomic Energy Act makes it unlawful to build or operate a commercial nuclear power plant without an NRC 19/
license,--
and directs that licensees,he persons "who are equipped to observe and who agree to observe such safety standards to protect health and to minimize danger to life or property as the Commissiom may by rule establish; and who agree to make available to the Commission such' technical information and data concerning activities under such licenses as the commission may determine necessary to * *
- protect 20/
the health and safety of the public."~
17/
42 U.S.C. a2021(e).
--13/
The licensing and regulatory functions of the Atomic Energy Commission was transferred to the Nuclear Regulatory Commission by Title II of the Energy Reorganization Act of 1974, 42 U.S.C. E55841 et seg.
Both the AEC and the NRC will be referred to Eere as the Commission.
10/
42 U.S.C. 82131.
20/
42 U.S.C. 82133.
Under other sections, the Commission may "make such studies and investigations, [and] obtain such information as (it] may deem necessary or proper to assist it in exer-cising any authority provided in this Act", as well as
" provide for such inspections of * *
- activities under licenses (to build commercial nuclear power plants] as 21/
may be necessary to effectuate the purposes of this Act."-
And, "because of conditions revealed by * *
- any report record or inspection" which would have warranted refusal of the license initially, or "for failure to construct * **
a (nuclear power] facility in accordance with the terms of the construction permit or license or the technical speci-fications in the application * * * " it may revoke or suspend any license previously issued under the Atomic Energy Act.--22/
These provisions are " remedial" in character, that is, designed to afford protection which the public could not obtain on its own initiative.
It is a basic canon of statutory construction that remedial enactments 21,/
42 U.S.C. Es2201(c) and (o).
22/
42 U.S.C. 32236 (a).
23/
are broadly construed to help assure their effectiveness!
Thus, licensee's contrary argument notwithstanding, the Atomic Energy Act's failure to mention labor disputes does not imply that such matters are beyond Commission scrutiny.
An enactment like this one, expressive of major public
- policy, must be broadly phrased and necessarily carries with it the task of administrative application.
There is an area plainly covered by the language of the Act and an area no less plainly without it.
But in the nature of things Congress could not catalogue all the devices and stratagems for circumventing the policies of the Act.
Nor could it...defina:the whole gamut of remedies;to effectuate
~
these policies in anlinfinitT variety of specific situations..;-C0hgress met these difficulties by leaving ~ Be, adaptation of means to end to the empiric process of administration. 24/
23/
- See, e.g.,
United States v. An Article of Druc ---
Bacto-Unidisk, 394 U.S.
784, 798 (1969); Rushton Minine Co. v. Morton, 520 F.2d 716, 720 (3rd Cir.
1975); Freeman Coal Minine Co. v.
Interior Board of Mine Operations Appeals, 504 F.2d 741, 744 (7th Cir.
1974); United States v. Diapulse Corp., 457 F.2d 25, 28 (2d Cir. 19 72) ; St. Marys Sewer Pipe Co. v.
Director of the United States Bureau of Mines, 262 F.2d 378 (3rd Cir. A959); Natick Paperboard Corp. v.
Weinbercer, 389 F. Supp. 794 (D. Mass. 1975), to cite some authorities proffered by the staff.
24/
Phelpe Dcdge Corp. v. NLRS, 313 U.S. 177, 194 (1941)
(Frankfurter, J.).
Moreover, administrative responsibilities are measured at least in part by the purpose for which they were confer-M red.
There is no reason to assume that Congress would give the Commission tools unequal to the task assigned it.
Accordingly, we must explore whether labor disputes during the construction of a nuclear power plant can engender radiation hazards. to the public of the kind the Act was designed to guard against.
That examination need not detain us long.
The licensee acknowledged that labor practices can serve to mask con-struction deficiencies with serious safety implications.
To take this case as an example, counsel conceded at argu-ment that the summary discharge of a workman who has reported his employer for unsafe construction practices raises a reasonable inference that the employer may be 26 /
attempting to " cover-up" those practices. -
App. Tr. 10.
Common sense tells us that a retaliatory discharge of an employee for "whistleblowing" is likely to discourace 2 5_/
Permian Basin Area Rate Cases, 390 U.S.
747, 774-76 (1968).
j2j7 The need for " quality assurance" and " quality control" in the construction of nuclear plants has long been a recognized Commission concern.
- See, e.c.
Consumers Power Co. (Midland Plant, Units 1 and TT,, ALAB-10 6, 6 AEC Ioz us /J) ; ALAB-14 7, 6 AEC 636 (1973); ALAB-152, 6 AEC 816 (1972); ALAB-283, 2 NRC 11 (1975).
others from coming forward with information about apparent safety discrepancies.
Yet, the Commission's safety inspec-tors cannot be everywhere; to an extent they must depend on help of this kind to do their jobs.
Incidents thau deter such aid are inherently suspect.
They obviously merit full exploration in the interests of safety and certainly are prima facie within the Commission's legis-lative charter.
Licensee argues that investigators could ascertain any " chilling effect" of Daniel's firing of Mr. Smart simply by talking to other employees, without need either to inspect Daniel's records or to interview its personnel executives.
The short answer is that the perceived effect on others is only part of the problem.
If Daniel in fact fired Mr. Smart to " cover-up" careless construction practices that might make the plant unsafe to operate, the NRC investigators are entitled -- indeed obliged --
to know about it.--27/
To conclude that the right to
--27/
We acree with the staff that, werr this indeed the case, licensee's continued retention of
..iel to construct the nuclear plant might well jeopardize its construc-tion permit.
See 42 U.S.C.
3213 3 (b) (2).
ascertain the facts underlying such incidents is beyond the Commission's investigatory power is to limit cro tanto its ability to guard against the patent dangers of poorly built nuclear plants.
We are reluctant to reach that con-clusion without some compelling reason, for to do so would make us guilty of " interpret [ing] a statute so narrowly as This we may not do.
~
to defeat its obvious intent."
2.
Nevertheless, we may not end our decision here.
It is not enough to ascertain the " plain meaning" of a statute with the assistance of the canons of construction.
The duty of any adjudicatory tribunal is to determine as best it can what Congress intended; the canons are but one means to that end.
"When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no ' rule of law' which forbids its use, however clear the words may appear on ' super-ficial examination'. " S/
And "even the most basic general principles of statutory construction must yield 28/ United States v. Braverman, 373 U.S.
405, 408 (1963);
-- accord, Bird v. United States, 187 U.S.
118, 124 (1902);
Wilderness Society v. Morton, 479 F.2d 842, 855 (D.C.Cir.),
certiorari denied, 411 U.S.
917 (1973).
29/ Train v. Colorado PIRG, 426 U.S.
1, 10 (1976) (Marshall, J. ).
17 -
-30/
to contrary evidence of legislative intent." -
That the right to determine why a "whistleblcwer" was fired appears at first reading to be within the scope of the Commission's investigatory authority under the Atomic Energy Act is not necessarily dispositive of the ques tion.
Sometimes a literal reading of a statute encompasses matters the draftsmen did not mean to cover.
It can be the case "that however broad the language of the statute may be, the act, although within the letter, is not within the intention of the Legislature, and
-31/
therefore cannot be within the statute." ' Accordingly, we look to see whether that situation obtains here.
We keep in mind, however, that the party who urges a reading not apparent on the face of a statute bears the burden of 32/
showing a basis for the departure.
30/
National R.R. Passenger Corp. v.
Passenger Ass'n, 414 U.S.
453, 458 (1974).
31,/
Toledo Edison Ccmpany (Davis-Besse Station, Unit 1),
ALAB-323, 3 NRC 331, 344 (1976), quoting Church of the Holy Trinity v. United States, 143 U.S.
457, 472 (1692);
accord, United Housina Foundation, Inc. v. Forman, 421 U.S.
837, 849 (1975); Philbrook v. Glodaett, 421 U.S.
707, 714 (1975).
32/
Massachusetts Financial Services, Inc. v. Securities Investor Protection, 545 F.2d 754, 756 fn. 3 (1st Cir. 1976); Commissioner v. Barclay Jewelry, Inc.,
367 F.2d 193, 196 (1st Cir. 1966); Byrnes v. Faulkner, Dawkins & Sullivan, 413 F.
Supp. 453, 462 (S.D.N.Y Ad66),
affirmed, 550 F.2d 1303 (2nd Cir. 1977); see also, Public Service Co. of Indiana (Marble Hill Units 1 and 2), ALAB-459, 7 NRC 179, 199-200 (1978).
Licensee advances essentially three arguments to support its theory that " labor disputes" are free of the Commission's investigative authority.
They involve the Atomic Energy Act's legislative history, the Commission's prior inaction, and recent legislation giving the Secretary of Labor power to intervene in "whistleblower" disputes.
Like the Board below, we find none of them persuasive.
(a)
Licensee 's examination of the background of the Atomic Energy Act uncovered little relevant material.
It concludes simply that the " legislative history is not dispositive of the issue at hand."
But, in our view, this fact itself cuts against licensee.
The NRC did not initiate its investigation to resolve a labor dispute at the Callaway site or because the NRC staff claims " watch-dog authority over labor matters".--33/
Rather, its pur-pose was to ferret out any substandard construction practices that might leave the Callaway plant unsafe to operate.--34/
Notwithstanding its silence about labor disputes, the legislative history unmistakably proclaims the safety authority of the Commission as paramount 33/
Licensee's Opening Brief at 13.
34/
Stipulation, paragraph 7.
-35/
and plenary, -
and does so without any suggestion that Commission investigators must turn a blind eye to safety problems coincidentally involving some
" labor practice".
Here lies the flaw in the licensee's argument:
it provides no reason why Congresc would want to hobble the Commission's ability to deal with such problems.--36/
(b) Licensee next suggests that the agency's previous failure to claim authority of this nature evidences its nonexistence.
As the licensee puts it, "[p}rior to this case, the NRC has neither asserted nor exercised authority to conduct an investigation into the causes underlying 37/
disciplinary action against a construction worker."--
The argument will not stand even brief analysis.
The key words are construc tion worker. "
For the licensee acknowl-
--35/
See, Power Reactor Co. v. Electricians, 367 U.S.
- 396, 402, 415-16 (1961).
Licensee maxes much of the fact that the Commission's authority over environmental and antitrust matters is subject to limits.
See, New Hamoshire v. AEC 406 F.2d 170 (1st Cir. 1969); Cities of Statesville v.
AEC, 441 F.2d 962 (D. C. Cir. 1969).
But, as it concedes, neither of those cases is on point for purposes of this safety proceeding.
(Licensee 's Opening Brief at 11.)
It cites no limits on the Commission's Jurisdiction to ensure the construction of safe nuclear plants and we are aware of none.
36/
See, Marble Hill, suora, 7 NRC at 200.
37/
Licensae's Opening Brief at 9.
. 38/
edges in a later footnoteT-that the Commission has had on its books for more than five years regulations encouraging workmen operating nuclear power plants to report to it violations of safety regulations and forbidding retaliatory discharge of or discrimination against those who do.--39/
The authority underpinning those regulations is the same 40/
that the staff invokes to support its investigation here!-
Thus, the Commission has not " slept on its rights" until this case.
As for licensee's brief contention that the NRC is equally impotent to protect plant operators who report safety transgressions, we simply note that it cites no congressional, judicial or other authority than its 41/
own ipse dixit.
That is hardly sufficient to persuade us that the Commissioners exceeded their authority in these matters, particularly as Congress has been made aware of and 42/
did not object to the regulations that licensee is attacking!
In our judgment, the Commission's authority to protect employees who operate nuclear power plants from employer 38/
Id. at p. 22, fn. 19.
30/
See, generally, 10 C.F.R. Part 19 and C.F.R. @l9.16(c).
40/
Inter alia, 42 U.S.C. 52201.
1/
See fn. 37, supra.
42/
See, Siegel v. AEC, 400 F.2d 778, 783 (D.C. Cir. 1968).
\\
i retaliation is broad enough to let it protect those who build them.
To be sure, Commission regulations do not expressly extend to construction workers.
But the Commis-sion need not promulgate general rules to exercise its powers; it may instead issue case-by-case orders.
Supreme Court decisions rejecting arguments analagous to licensee'L explain why:
[P]roblems may arise in a case which the admin-istrative agency could not reasonably foresee, problems which must be solved despite the absence of a relevant general rule.
Or the agency may not have had sufficient experience with a particular problem to warrant rigidify-ing its tentative judgment into a hard and fast rule.
Or the eroblem may be so soecialized and varying in nature as to be imeossible of capture within the boundaries of a ceneral rule.
In those situations, the agency must retain power to deal with the problems on a case-to-case basis if the administrative process is to be effective.43/
Moreover, it would be ironic indeed if the NRC could not investigate the cause of Mr. Smart's discharge without a formal agency rule covering his circumstances.
Labor disputes are among the most prominent examples of matters traditionally handled on a case-by-case basis.
See NLRB v.
44/
Bell Aerospace Co., supra!-
43/
NLRB v. Bell Aerospace Co.,
416 U.S.
267, 293 (1974),
quoting SEC v. Chenery Corp., 332 U.S. 194, 202-03 (1947).
44/
"If an ' administrative agency' is required to resort to rulemaking, then the NLRB is, but the NLRB has issued only four substantive rules in fortv vears.
29 C.F.R. Part 103.
Are all the ' rules' that emerge from more than 200 volumes of NLRB opinions invalid?
The obvious answer has to be no."
K. Davis, Admini-strative Law of the Seventies (1976) at 231.
(c)
Finally, licensee invites our attention to statutes, covering many industries, designed to protect workmen who report their employer's derelictions to govern-ment agencies.
Such enactments typically (but not uniformly) empower the Secretary of Labor, at the instance of the aggrieved employee, to investigate and gullify an employer's 45/
retaliatory actions.--
No similar provision appears in the Atomic Energy Act of 1954.
However, as the licensee stresses, on November 6, 1978, Congress enacted legislation authorizing the employees of NRC licensees and license applicants, and of their contractors and subcontractors, to take such grievances to the Secretary of Labor, not the 46/
NRC.
The licensee would have us infer that this Commission
~-
never had investigatory authority "duplicative" of that covered by the new law.
That inference is unwarranted.
A statute enacted in 1978 is little indication of what another Congress intended in passing legislation nearly a quarter-century 45/
See fn.15, supra.
46/ Ibid.
47/
earlier.--
Even were this not generally so, the sponsors of the 1978 amendment adding "section 210" to the Energy Reorganization Act of 1974--48/
explicitly warned against notions of NRC powerlessness in these matters.
Thus, the Senate floor manager, urging his colleagues to accept 49/
the amendment, said that while new section 210 of the Energy Reorgani-
- ation Act of 1978 provides the Department of Labor with new authority to investigate an alleged act of discrimination in this context and to afford a remedy should the allegation prove true, it is not intended to in any way abridge the Commission's current authority to investigate an alleged discrimination and take appropriate action against a licensee-employer, such as a civil penalty, license suspension or license revocation.
Further, the pendency of a proceeding before the Department of Labor pursuant to new section 210 need not delay any action by the Commissica to carry out the pur-poses of the Atomic Energy Act of 1954.
--47/
See, United States v. Philadelphia National Bank, 374 U.S.
321, 349 (1963); United States v. Wise, 370 U.S.
405, 411 (1962); United States v. Price, 361 U.S.
304, 313 (1960); Rainwater v. United States, 356 U.S.
590, 593 (1958).
48,/
See fn. 14, supra.
49/
124 Cong. Rec. S15318 (daily ed. Sept. 18, 1978)
(remarks of Senator Hart).
Senator Hart's remarks do not establish the existence under the Atomic Energy Act of the disputed investigatory authority.
However, they effectively undercut the idea that Congress passed section 210 either because it thought the Commission lacked such power or because it wanted to strip away that authority.
Moreover, the Commission's investigatory powers and those of the Secretary of Labor under the new provisions neither serve the same purpose nor are invoked in the same manner.
They are, rather, complementary, not duplicative in the sense licensee suggests.
To be sure, both encourage the reporting of unsafe or imprcper practices to Commission officials.
But section 210 focuses chiefly on protecting employees against retaliation, rather than on safeguarding the public's rights.
Its processes may be invoked only by the employee, who may settle the complaint on terms he believes adequate without regard to any larger public interest; *he remedy afforded is in terms of job reinstate-ment and compensation.5p/
Consequently, the validity of an employee's discharge may be compromised or decided without ever determining whether it was retaliatory or designed to 50/ See 42 U.S.C.
85851.
. 51 cover up substandard construction practices.- /
- Indeed, that is just what did happen in this case, albeit under contractual grievance proceedings rather than under the Secretary's auspices.
Moreover, under the new legislation the Secretary apparently lacks two remedial powers -- which the Commis-sion possesses -- necessary to insure full protection of the public interest.
The first is the right to take important actions against the employer, and the other is author-ity to de so immediately.
Thus, even after finding that an employee has been fired for reporting unsafe construction practices, the Secretary may order only reinstatement and back pay -- not correction of the dangerous practices them-selves.
He can report them to the Commission.
But his administrative proceedings take time; as does any judicial review (the grievance proceedings in this case took seven 52 /
months)!~
In the interim, a lot of concrete can be poured j5V Not to mention that a discharged employee -- for reasons sufficient to himself -- may simply choose to look else-where for werk and forego the proceedings entirely.
5;_/ The Secretary of Labor is under a statutory injunction to complete his proceedings within 90 days of receipt of a complaint, which must be filed within 30 days of discharge; the right thereafter to seek judicial review is open for 60 days; no time limit is imposed for its completion.
42 U.S.C. 85851(b) and (c).
over a lot of defects.EE/
This Commission, as the agency primarily responsible for public safety in the nuclear field, should not have to stand idly by while this happens.
But that is the practical result of licensee's approach.
To be sure, under licensee's theory the Commission investigators could in the meanwhile search fer safety defects on their own.
And they could speak with any employees willing to talk to them, so long as they did not seek to learn directly from the employer's executives or personnel records whether the firing was an act of retaliation.
This " hang your clothes on a hickory limb and don't go near the water" approach has little to commend it.
Nuclear power plants are immense, billion-dollar construction projects; and the Commission has only a finite number of inspectors.
As the staff cogently explains, in the context of the situation at bar: O The NRC investigation was aimed at finding out whether it might be necessary to mount an aug-mented inspection effort at Callaway.
It would not be a prudent use cf limited inspection resources if it were to turn out that Mr. Smart had not been fired for giving safety information to NRC.
So, we need to know the facts before we decide what actions may be required.
5,3 / See, e.g., Midland, supra, fn. 26.
j 54 / Staff Brief at 14 (emphasis in original).
,j Accordingly, we reject the licensee's arguments and agree with the Board below "that the proposed investiga-tions and inspections are within the statutory authority of the Commission and its regulations. " 55/
We tarn next to licensee's contention that they are, nevertheless, impermissible without a search warrant.
III.
In Marshall v. Barlow's, Inc., 436 U.S.
307 (1978), the Supreme Court held in violation of the Fourth Amendment's guarantees against unreasonable searches and seizures a warrantless inspection of commercial premises pursuant to section 8 of the Occupational Health and Safety Act of 1970. $/
In doing so, however, the Court recognized two exceptions to the general rule requiring search warrants.
These involved "' pervasively regulated businesses [es]',
United States v.
Biswell, 406 U.S.
311, 316 (197 2), " and
"' closely regulated' industries 'long subject to close supervision and inspection.'
Colonnade Catering Core. v.
United States,397 U.S. 72, 74, 77 (1970)."dE The Court 55/ 8 NRC at 376 (footnotes omitted).
((/ 29 U.S.C.
a657 (a).
51/ 4 36 U. S. at 313.
explained that these exceptions represent responses to relatively unique circum-stances.
Certain industries have such a history of government oversight that no reasonable expec-tation of privacy, see Katz v. United States, 389 U.S.
347, 351-352 (1967), could exist for a proprietor over the stock of such an enterprise.
Liquor (Colonnade) and firearms (Biswell) are industries of this type; when an entrepreneur embarks upon such a business, he has voluntarily chosen to subject himself to a full arsenal of governmental regulation.
Industries such as these fall within the "certain carefully defined classes of cases,"
referenced in Camara [v. Municipal Court, 387 U.S. 523] at 528.
The element enat cistinguishes these enterprises from ordinary businesses is a long tradition of close government supervision, of which any person who chooses to enter such a business'must already be aware.
"A central difference between those cases [ Colonnade and Biswell] and this one is that businessmen engaged in such federally licensed and regulated enterprises accept the burdens as well as the benefits of their trade, whereas the petitioner here was not engaged in any regulated or licensed business.
The businessman in a reculated
~
industry in effect consents to the restrictions placed upon him." Almeida-Sanchez v. United States, 413 U.S. 266, 271 (1973). 58,/
In the proceeding below, the Licensing Board held that the " atomic energy industry is an example of a pervasively regulated industry, and accordingly, lawful inspections of licensees' activities are within the 58/
Ibid.
warrantless search exception for a ' closely regulated industry' delineated by the United States Supreme Court in Marshall v. Barlow's Inc."--59/
The licensee challenges that conclusion.
It does acknowledge that " Daniel Construc-tion could fully anticipate that its reports and records pertaining to site work and safety considerations would have to be made readily accessible for regular inspection and review by the NRC" under the Commission's regulation.
But it insists that the regulations do not justify "a war-
-60/
rantless investigation of [ Daniel's] labor practices." ~
As to these, licensee contends Daniel retained its "expec-tations of privacy" and, accordingly, its personnel and records cannot be investigated without a warrant.
That argument's basic premise is faulty.
We stress again that the staff was not investigating the general state of Daniel's relations with its employees.
It was seeking to discover whether Daniel is attempting to cover up sub-standard construction practices by firing employees who bring them to the Commission's attentien.
That such actions 59/
8 NRC at 377.
60/
Licensee's Openinc Brief at 24 and 27.
may also be " labor practices" does not detract from their safety implications.
For reasons we have already developed, 61 /
the latter are clearly within Commission purview.
Once this is appreciated -- and we think it not ser-62 /
iously disputed by licensee-- -- it becomes clear that the Board below was correct in ruling that the NRC investi-gation in this case needed no warrant.
It is too late to contend that the Atomic Energy Act does not embody a "per-vasive regulatory scheme" over the nuclear power industry.
Train v. Colorado PIRG, supra, 426 U.S. at 5-6.
Entry into the industry'is only under Commission license.
Com-mission regulations provide ample notice that a licensee 61j See Part II, supra.
f 62 /
At oral argument we asked licensee's counsel whether, in order to sustain his position, "we have to conclude that a reasonable man could not find a safety link between a dismissal as a retaliatory measure and the protection of the public health and safety through a well built plant?"
He responded, with his usual commen-dable candor, that "I think I would be less than candid if I didn't answer you by saying, yes, that would be what you would have to conclude, that if they were looking into this and they were to find that it was a retaliatory firing, that the authority question, as the statute is now written, I think that the authority question could be resolved in their favor, unless one could say that the retaliatory firing provided no safety."
See App. Tr. 25-26.
. must " permit inspection, by duly authorized representatives of the Commission, of his records, premises [and] activities
- *
- related to the license or construction permit as may be necessary to effectuate the purposes of the Act, 10 C.F.R. 350.70.
To borrow from the Court's opinion, "when an entrepreneur embarks upon such a business, he has voluntarily chosen to subject himself to a full arsenal 63/
of government regulation."-- Given these circumstances, we decline to credit the notion that Daniel had any "expec-tation of privacy" respecting its activities reasonably related to the safe construction of a nuclear plant.--64/
The investigation at bar involves such a matter and no search warrant was needed.
Marshall v. Barlow's, supra; accord, In re Surface Minine Regulation Litigation, 456 65/
F. Supp. 1301, 1318-19 (D.D.C. 1978) (appeal pending).
63/
Marshall v. Barlow's, supra, 436 U.S. at
--64/
Licensee concedes that its contractor stands on no better footing than itself in this respect.
Licensee's Opening Brief at 29, fn. 22.
65/
In reliance on Marshall v. Barlow's, supra, the district court upheld the secretary of the Interior's regulations subjecting coal mine operators, in specified circum-stances, to warrantless searches in the interest of public health and safety.
We caution, however, that our conclusion turns in no small measure on the facts before us.
The staff's inves-tigation was restricted in scope and designed to elicit evidence of potential safety problems linked to the cause for Mr. Smart's summary discharge.
Resistance was limited to a challenge to the NRC's legal authority to conduct the investigation.
But it by no means follows that unrestricted searches of licensees, their contractors and their premises are authorized in every situation.
In Marshall v. Barlow's, the Court reiterated that warrantless searches are the exception, not the rule; they are scrutinized with little favor and no pleasure.
And the carefully drawn opinion in the Surface Mining case strongly hints that, in different circumstances, such inspections may not pass muster unless justified by published regulations controlling how, when and where they may be undertaken.
See 456 F. Supp, at 1317-19.
IV.
Licensee further contends that the staff should have awaited the o'itcome of the grievance proceedings before commencing its own investigation into Mr. Smart's
. discharge and that, in any event, no cause was shown to suspend the callaway construction permits.
The two arguments are interrelated and we treat them together.
We are well aware of warnings against unnecessary intrusions into the " delicate area" of national labor relations policy, where every agency must be "particularly careful because of the possible effects of its decision 66/
on the functioning" of that policy.-- Licensee suggests that an NRC finding either way on the cause of Mr. Smart's firing made before completion of an ongoing grievance proceeding might influence its outcome.
That may well be so, but the need for restraint in this area is not absolute.
We do not think it prevails over a potentially serious question of public health and safety.--67/ Without rehearsing everything we have said before, to shackle the staff's investigators until grievance proceedings are completed opens the possibility of radiation hazards being created 66,/
Burlington Truck Lines, Inc. v. United States, 371 U.S.
156, 172 (1962).
See also, Volkswagenwerk A.G. v. FMC, 390 U.S.
261, 278 (1968); Local 189, Meat Cutters v. Jewel Tea Co.,
381 U.S.
676 (1965).
67,/
As the Board below noted: "Public Health and Safety is an overriding consideration in any [ Commission]
decision related to the construction and cperation of a nuclear facility."
8 NRC at 378, citing Pcwer Eeactor Co. v. Electricians, supra, 367 U.S. at 402.
. during the delay.
That consequence, in our judgment, is more important to be avoided than disturbances of employer-employee relationships.
We therefore have no hesitation in holding that the incidental effects of an NRC investi-gation on pending grievance proceedings -- whether under collective bargaining agreements or before the Secretary of Labor -- do not cutweigh the Commission's need to be able to look into the question of retaliatory discharges promptly if circumstances warrant, and that the staff did not abuse its discretion in electing to do so here.
More-over, neither the staff's past practices nor its actions in this case suggest that it embarks on investigations into contracter's discharge practices at the drop of a hat, or does so without regard to the event's nexus to safety considerations.
Licensee has shewn no reason why the staff's discretion in this area shculd be restricted in the future.
Finally, licensee argues that the decision to suspend the Callaway construction permit was unjustified because the existence of a substantial health and safety issue --
. a predicate to such a suspension order--68/ -- was not established.
The argument fails, however in light of our previously stated agreement with the Licensing Board that the necessary connection was shown.
In the words of that Board:
"the Licensee and the contractor's refusal to permit the investigation is intolerable since it inter-feres with the Commission's duty and responsibility to
-69/
assure the public safety." - In the circumstances, it was appropriate to suspend the construction permit unless 70/
and until the company let the investigation go forward.
V.
The final matter before us concerns the Commission's remedial powers in the event Mr. Smart's discharge was in fact in retaliation for his giving information to NRC safety inspectors adverse to his employer.
The Licensing Board construed the issue to be outside its jurisdiction 68,/
- See, e.c., Consolidated Edison Company (Indian
- Point, Units 1, 2 and 3), CLI-75-8, 2 NRC 173, 176 and fn. 2 (1975); Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-315, 3 NRC 101, 110-12 (1976); and Virginia Electric & Power Company (North Anna Power Station, Units 1 and 2), LBP-75-54, 2 NRC 498, 537 (1975), aff'd on this issue, ALAB-324, 3 NRC 347, 389 (1976).
69/
8 NRC at 378.
70/
We note that the parties ' agreement described in fn. 9, supra, rendered actual suspension unnecessary.
. and refused to address it; Mr. Smart appeals.
In the interim, however, the grievance proceedings terminated in his favor and Mr. Smart has been restored to employment with back pay.21/
There thus remains no further relief which this Commission could afford him; in other words, his complaint is moot.
These circumstances do not automatically compel us to dismiss Mr. Smart's appeal.
The Constitutional strictures in Article III which necessitate concrete " cases and con-troversies" to support the jurisdiction of the federal courts 1S/ do not necessarily apply to administrative agencies.73/
And we are prepared to agree with Mr. Smart that the question he would raise is of some importance.15/
71/ See pp. 9-10, supra.
72/ The judicial rule is that " federal courts are without power to decide questions that cannot affect the rights of litigants in this case before them."
De Funis v.
Odegaard, 416 U.S.
312, 316 (1974).
73/ See, Tennessee Valley Authority (Phipps Bend, Units 1 and 2), ALAB-506, 8 NRC (slip opinion at 31-32, fn. 55) (November 5,1978).
74/ Mr. Smart expressed concern over what he understood to be the staff position that the NRC has no authority to order employees reinstated.
At oral argument the staff disclaimed that position.
It stressed, rather, that a decision on the proper remedy should not precede a finding that a retaliatory discharge in fact occurred.
37 -
Nevertheless, it is our practice not to decide abstract questions unnecessarily.75/
For one thing, our docket is heavy and our time is better expended on truly pressing matters.
For another, the practice represents a considered judgment that important issues are best decided in the light of their actual consequences.
The absence of such may cause the parties -- and ourselves -- to overlook important considerations and result in a decision that may inadvertently misdirect future litigants.
Particularly in light of the new and yet untested remedies for discharged employees recently provided by Congress, we take the pru-dent course and pass the question of the Ccmmission's authority to protect discharged "whistleblowers" until the matter is squarely presented.
Moreover, we doubt that the Commission intended the question of employee remedies to be reached in this pro-ceeding.
NRC licensing boards have limited jurisdiction; their authority extends only to matters the Commission places before them.76/
Mr. Smart argues eloquently that 75/ See, e.g.,
the Toledo Edison Co. (Davis-Besse Station),
ALAB-157, 6 AEC 858 (1973); Phipps Bend, supra, fn. 73.
76/ Public Service Co. of Indiana (Marble Hill Station, Units 1 and 2), ALAB-316, 3 NRC 167, 170 (1976);
Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), ALAB-381, 5 NRC 582, 592 (1977).
O
. the issue is " implied" in the Commission's referral order.
Were we to reach the question, however, we would be inclined to concur in the Licensing Board's judgment that the better 77/
view is otherwise-The decision of the Licensing Board is affirmed; fur-ther proceedings shall be in accordance with this decision and the parties' agreement of October 18, 1973.E!
It is so ORDERED.
FOR THE APPEAL BOARD AAEL&
Ma'rafret 2. Du Flo Secretary to the Appeal Board 77/
To the extent that Mr. Smart sought relief other than reinstatement, his claims are either non-justiciable or inappropriate at this juncture for the reasons just stated.
H/
See fn. 9 and accompanying text, supra, and ALAB-403, supra, 8 NRC at 403-05.