ML20101A107
| ML20101A107 | |
| Person / Time | |
|---|---|
| Site: | Wolf Creek  |
| Issue date: | 12/13/1984 |
| From: | Koester G KANSAS GAS & ELECTRIC CO. |
| To: | Taylor J NRC OFFICE OF INSPECTION & ENFORCEMENT (IE) |
| References | |
| EA-84-087, EA-84-87, KMLNRC-84-229, NUDOCS 8412180136 | |
| Download: ML20101A107 (11) | |
Text
.
KANSAS GAS AND ELECTRIC COMPANY THE ELECTAC COMPANY
@LENN L MOESTER vect PetsectNT mucLeam December 13, 1984 Mr. James M. Taylor, Deputy Director Office of Inspection and Enforcement U.S. Nuclear Regulatory Commission Washington, D.C.
20555 KMLNRC 84-229 Re:
Docket No. STN 50-482 Ref: Letter KMLNRC 84-189 dated 10/23/84 from GLKoester, KG&E, to RCDeYoung, NRC Subj: Enforcement Action 84-87
Dear Mr. Taylor:
A recent decision by the United States Court of Appeals, 5th Circuit, issued December 10, 1984, has prompted us to supplement our letter of December 3, 1984. A copy of that decision is attached hereto for your information and reference. You will note that the decision judicially confirms the key arguments raised by Kansas Gas and Electric Company in the Reference and, of course, deals with other points pertinent to that particular case. This decisioa by the 5th Circuit is also directly on point with many of the most important legal arguments being raised by Kansas Gas and Electric Company in its appeal of the Secretary of Labor's decision in this case.
This decision by the 5th Circuit directly brings into serious question the propriety of the Secretary of Labor's decision concerning Kansas Gas and Electric Company and James E. Wells. It also makes most questionable the appropriateness of any governmental body relying upon such an Order prior to judicial review.
We would, and do herewith, most respectfully once again renew our request that the NRC vacate, or at minimum suspend, the civil penalty proceeding pending completion of judicial review by the United States Court of Appeals for the 10th Circuit in this matter or other summary conclusion or dis-missal of such matters.
Your continuing attention to this important concern is appreciated.
8412180136 841213 Yours very truly, PDR ADOCK 05000482 0
PDR GLK:bb Attach
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Attachment to IGiLNRC 84-229 t
BROWN & ROOT, INC. v. DONOVAN 1317 paratisn. Energy Reorganization Act of BROWN & ROOT, INC., Petitioner, 1974, 6 310la), se amended, 42 U.S.C.A.
I4551(a).
Raymond J. DONOVAN, Secretary of t
Labor, Reependent.
- 1. Labor Relatione 4=86.5 No. 88 4489.
Filing of nonconformance reports with i
his employer by quality controlinepector at United States Court of Appeals, nue 88r genenting f8Cility we's not pmtect.
{
1 Fath cwt
- ei under Energy Reorganfastlen Act eso.
4 tion whleh prohtbits an employer ftom dis-Dac.10,1934.
charging an employee for cammencing, tea.
t!!ybg in, assisting in or participating in a
}
pro:eeding for the administration er en.
Employer petitioned for myiew of an forcement of that Act or the Atomie Ener.
order of the United States Department of gy Act; therIrfow, employer's discharge o i
Imbar, whbh affirmed an admtahtrative quality control inspector for those filinge law judge's finding that it discriminated was not a violstbn of that se:tbn. Energy
[
against an employee by dinherging him Rwrganitetton Act of 1974; 6 210*a), as for engag;ng in conduct protected by the Energy Reorganisation Act. Tne Court of amended,42 U.S.C.A. I 8951(a).
Appeale, E. Grady Jolly, Civsult Judge, held
~
that: (1) Act ee: tion in question done not pmtect filing of pucaly internal guslity con.
Petition for Review of an Order of the trol repsite, and (2) filing of nr.neonfor. United States Department of Labor.
menee reports by employee with his em-player was not protected under that see-tion, and thus his diesharge for the filtrige Befom GAREA, JOLLY and DAVI6, Cir, was not a visistion of the Act.
cult Judges.
Vacated and remanded.
E. GRADY JOLLY, Circutt Judge:
- 1. Labor Relatione e=38.5 The petitioner. Hmwn & Root. Inc., ap-Energy Reorgenlastian Act oe tion peals the order of the Secretary of tabsr (Suretary) affirming an administrative law prohtbit!ng an employer from discharging judge's fmding that it discriminated an employee for commencing, teet!fying ir..
against an employee by discharging him assisting in or parti:1pating in a prosseding for engaging in conduet protected by ase-for the administration or enforcement of tisn 210:s) of the Energy Reorganisation the requiremente of that Act or the Atomic Act (ERA),42 U.S.C. I 5951(a). Boe nee Energy Act does not protect the filing of we find the filing of such a repsrt le not purely internal quality control reports; protected by the statute, the Steretary's rather, it is designed to prosset " whistle order iv~ vacated and the case is remanded blowers" who provide informotion to gov-for further consideration not inconsistent ernmental entitime, not to the employer cor. with our holding here.
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1238 BROWN & ROUT. INC. v. DONOVAN I.
removed from the team and the defects Brown & Root was the prime contractor wm umapped, but Brandt still considered at the Comnehe Peak Stam Elutric Pow. the number of defuts acessive. It was er Station, a nuelser generating facility later discovered that Brandt had ordmd near Glen Rose, Texas. Iri December 1981, the wrong standard und in the inspution.
Charles Atchisen became a field quality control inspector for Brown & Root at the he third NCR No. 381, drafted by At-Comanche Peels alte. It was the duty of a chison in April 1982, contended that certain quality controlinspector to leeue a noneen* inopution teses conducted by inopstere formsnea aport (NCR) whenever he detect. employed by hxas Utility Geneting ed a condities whteh he considered did not Company, the owner of the Comanche Peak meet contract specifsostions.
Atchtson Miktim wm invalid buem the in.
was specifically responsible for inopoeting spectors were not properly qualifid. A pipe.whiprestraint4nstallation welds. De dM thh NCR m lefs a War's controversy in this case centers on thee desk with a note that the NCR hd not yet NCRe issuoi by Atchison. De first. the g,g att sevel incident," canemed defects no-a e to d.imesing it. Several dayA later tired in March of 1932 by Atchison in weld, the superior told Atchison that he intended which wm nut his spedfc maponsibility r*:ommending the voiding of NCA No. 881, but which wm Iscated near those he was and Atcpleon W:ed no oNution. De inspecting. After this incident, Atehlson's NCR, with Atchison's note attached, was immediate superior informed him that given to Brandt along mth other papers, Btwidt, the ultimate superist, thought At. Including the superior;e ymmation recom-I
^
chison was inspecting beyond the scope of mendation for Atchloon. Brandt and Pur.
his jsb. Tne area was later reinspectog dy, another superior, testified that they and the existence of some of the defwts interpreted the note on the NCR as art that Atchison had reported was confirmed. attempt to gain leverage or negotists with
%s second incident, NCR No. 295/' regard to the acommended prometton. On also occurred in March 1932, after a craft April 12,1938, Brandt sont Purdy a memo, supervisor athed Atchleen to inspect some randum stating that Atchison's services welds on uninstalid p'pe. whip rutraints wm no longer reguled beause "he refus.
that the craft supervisor believed to be n to limit his scope of reponsibility."
defut!ve. Four men wm assigned to meP Purdy testified that bwause he was unable the defects in the pipewhip restraints. to place Atchison in another joti, he fired him.
Branit was not sat!sfid with the team's first repsrt, feeling that it showed an Im.
Atchison made a timely complaint that he passible number of defects. Atchistm was was dinharged for activity protected under
- f. An NCR is a *roatine laternet swpo:t* by stoa to t!)aue:h a 'hsid tag to present funher wht:h a held quelhy sentrol Inspector notes a work: (2) ob:aln an NCR number from the NCit sandhion that ehhst appeers no: to conform to app!!: awe consite: ales spedliceuens or to coorJinator; (3) enter the NCR number of the h31:14es. (4) draft an NCA deserkng the candt.
whtsh specifications the fort of depte of coa.
sien and mepping its I: station; and (!) sabmtt formen.v Is infe:ctminant. Tns p:otedures u.
the draft NCR for approral to the qaelity con.
quiu th; ins,weer who obaents sJ:h a cond!.
trol sup;rdsor.
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e.us BROWN 4 ROOT. INC. v. DONOVAN 1219 len6961(a).5 De Department ofImber intracorporate quality control repsrt. We invoulgated and agned.8 The administra. held that the fding of such a repsrt is not tise law judge found that Atchiesa bed lied protested by the statute. His deuian It on his job appiliat!sa, falsified documente, predi:ated on three considerations. firat, was a totally unaliable witness and that the statutory language cantet be stretced nothing he esid could be believed without to encompses such a fding. Se:ond, the i
independent corrobaration. She held with legislative ht* tory of the Energy Reorgani.
Atchiinn, however, that fding an NCR wa' astion Act (ERA) does not support such an a protected act!vity, that Atchison was extensian of the meaning of sortion 5551.
I find for fding the NCRs in "gosi faith." Dird, the structure of the ERA indientes and that the nasono given by Brown & thet section 8951(a) in designed asiely to Rest for the discharge were pretexts.' protect from ntaliation corpsrate " whistle De administrative law judge neommended blowers" who infonit naponsible officials reinstatement. back pay, and - attorney's of corporate failings.
feet, n, Soeretary of 14bar affirmed the l
administrative law judge's det!sion with l
the exception of the minstatement whleh III.
was denied because Atchison had falsified A.
his educatisnal qualifications for this crit.
icalbb on several oscasions.
The language of esction 5951 cannot be construed to prote:t the fding of purely 11, interr.nl quality control nports. De role-vant langusse pnm employer diuranh
[1,21 De dispute in this caos cancerns natlan aga(nst s'i employee who has:
whether under 42 U.S.C. I 5951(a)'8) an employer 16 barred from discriminating (1) commenced... a pre:aeding under sistnet sny employee for the filing of an this chapter or the Atomi: Energy Act of
- 3. Seetten 3951(a) provldss:
(3) asels'ed or pontelpated or is about to No smp!ayer, in,luding a Commist'.on 11 en:st or panictpate in any msnmar in auth eensee, en app!!:am for a Commiotion li.
a ymcessing or in any other menner in i
cente. or a contierter or a subsentractor of a se:h a proceeding or in any other a: tion to Commission Ittensee or app!ttam. may dis.
carry eat the purposes of this shap:er or the chstge any employee or otherwloe discrimi.
Atoml; Energy Ast of 1934, as amended [42 nate against an) employee with reapset to his U.ic. 20!I et segJ.
campenistion. terms. tendtilans. or prMleges
- 3. Pasanm to 2e Cf.R. il 24.1-24.9 and 42 of ernptsyatem be suse the emp!a}ee (or er.y person atting parouant to e repest of the U.S C. d 5H2(b).
emplayes)-
4, At th: hsering before the administrative 1sw.
(1) commented, caused to be comrnented.
judge, coameMor AtcNeon empressly stated thtt or is abowl to commence or cause to be Atchin-:t was net alleging that he had been fired csmmen:ed a proceeding under this chap.
for f81ing NCRs hat rather for threatening to go ter of the Atomie Energy Act of 1954. as to the Nu: lear Resutetory Comission No ev'.
emended (42 U.44. 20!! et seq.). or a pro dense siduced at trist would sJppa t an infor-ceeding'for the admints; ration or enforce, ente that any of the meneg ment persnans) ment o any requirement imposed under this chep;er or me Atomic Energy A;I of invoked in Atchison's terminalian were aware 1934. as amended; of such threats. Tne AU. however. based her (2) tes;thed or is about to ter.lfy in any dt:16!on 03 her finding that arown and Roo!
scrminated Atchleen for filing NCRs.
eask proceeding or, f
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F.us l
1980 BROWN & ROOT, INC. *. DONOVAN 1954 (together referred to below as "The A'etm"]... or... for the adminletration eral term after a tiet of spe:lfics to mean something whotely unrestrained by the spe.
or enforeement of the requimments of ciftes. Although this la inerely a common-
.. [the Acts).
eense rule for interpreting a sentence, in (2) teatthed... in any such proceeding cases of statutory construct!sn we know the rate as "ehedem generis." 2A C.
(8) assieted or parti:1 pated... in any Sands, Sutherland Statsforp Construe.
manner h such a pmceeding or in any tion i 47.17 at 105 04 (8d Ed.1978) (1983 other set!sa to carry out the purposes of Supp.).
... [the Acts).
42 U.S.C. t 8951(a)..
The 5scretary has urged the word ae-tians" be construed sa arq conduct or act.
The Se:mtary does not contend that the but such a meaning seems unilkely. First.
filing of an internal quality report coutrl be the Secretary's construction runs agabst either a "pscoading under" the Acts or a the common sense rule d(seussed above.
" proceeding for the administratisa or en-Moreover, the statute pNtecte pattlefpstion foseement of' the Acts; " proceeding" con- "in any other action," which implies an endedly afer. to a formallegal or adminis-trative ym:wd6g as the tvtm is used in " action"16 a kind of strcctured proceedbg section 3951. Thus, the act of f!Ing must in whi:h a person msy part!cipate, rot just bs parti:ipattan "in any other actisn to any act a prrson may perform. Tne Se:re-carry out the purposes of' the Acts if it is tary argues that the prazeedings expussly 4
pmte:ted conduct. Putting aside for the listed exhaust the class of all things similar moment the broader questions of purpsses to thwe prorndings and thenfore main-and policies behind section 5861, we tabs that " actions" must be given a mean-first examine what meaning an ordinary ing beyond this class of similarity. We da nador would give to the language of sec' not agree that the listed specifica exhaust the elses. For exemple, although we do t!an fil51. "[t]t should be ge r llne a y an' surned that Congrus expre.nes its pur-not deelde a matter not before us, it ap.
p.wes through the ordinery meanifig of the per.ra that a congressional invest!gatory i
words it uns... " Euondido Nutrial proteading or other offiniti invnt!gatiom.
l' N'oter s. 43.r lic. - U.S.
1M S.Ct.
an quite libly
- actions" bearing suffseient o
210.i. 2110,80 led Sd 768 (1938). Absent similarity to " pro:eedings under" the Acts j
a clearly upreseed legislative intention to or " proceedings for the administratisn or the contrary, statutory language must ordt-enforcement" of the Acts to warr:.nt pro-narily ba regarded as contraillas. Id to: tion under es:t on 3551.
i Se:ond, the Secretary's interpretation Bc:ause the general term "in any other would render much of the innguage of sec.
i' uetinn" follows a reference to spe:16e types tion 5951 redunriant. If the word " actions" of pro: endings. It 16 most reasonable to has his sugg'ested meaning, then the mean.
prenuma that the term " actions" refers to ing of the entire swt!on could just as ensi!y something almilar to the specif: proceed. have been expressed without mention of ings mentioned earlier in the sentence. any " pro:ewlings" at all. Such a constra Only exceptionsuy does a writer use a gen. tion noms strained. Netteer n Board q/
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i BROWN & ROOT, INC. v DONOVAN 1381 pu6fbluetmet(on. 648 F.2d 559 n. 39 (5th None of these factors suppan the Secre-Cir.1977).
tary in the present caw.
Tated, a statuts should be interpreted in First, the Seerstary of Labsr does not its er,tirety. See Sutherland at 37. The appear to have great expertise in matters language of the remainder of the ERA of nuclear sufety. Ser font Motor Cndit does not suppon the Suretary. Tne word
- r. NilAo#in. 444 U.S. 555,1:$ S.Ct. 793,
" action" is not und sleewhere in the ERA 797,63 !. Ed.2d 2E (1990), Araglies at 911, to mean general conduct 8ectlan SS71(e) While as: tion 6951 cancerns employee pro.
begins: "no suit, ection or otAcr pro: cad. to: Don to some extent and the Secretary is ig...." (emphasle added), implying an charged generally with matters cancerning "ution" in a kind of pm:eeding. Sutlan the employeeemployer relationship, we 6SS1(e), entitled " Commencement of Ac-cannot ignore the fact that section 5951 is tion," authorises the Se:retary to file a primarily designed to serve the major pur.
" civil action" and states: "In set?ons psses of the ERA. In this case, nuclear
-bmught under this subsect!sn...." We safety. Nuclear en,ergy involva questions I
usually presume words an used consistent. of great scientifi: and engineering sophisti-l ly through a statute. Id. In summan. It cation well beyond that required in ordi.
I seems highty unlikely that an ordinary nary industrial relatlans. The Department writer of English would have used the of Energy (in particular, the Nuclear Regu.
worda of se: Con 8951 to mean what the htory Commissian) has spe:ial competenea Suretary says they mean. It is mu:h in this area, not the Depanment of Labor, more likely that "at' tion" li used to mean Se:end, the length of time in which the something similar to formal proceedings Se:retary has adhered to his interpretation under the Acts or for the administration or of the statute is not gnat. Under At's.
enforcement of the mquiremente of the ystlee the Secretary's opinion, mpecially if Acts.
left und;sturbed by Congress,is to be tak-en as evidence of congressisnal meaning, B.
but "[t]here is no reason to expect adminis.
The Seentary claims that his interpreta. trative agency members to display a speelal tion of se: tion 5851 is ent!tled to substan. fidelity to the originnt intent of the legisla-t!al deference as the interpntatlon given a don rather than the curmat policies of the statuts by the agency charged with its Aa, ministration and the Conguss.... If administration. At.spelles Epsrtemsn's the interprettd!on has persisted thesogh Leque s. Nereh. 718 F.2d 497 (6th Cir. several changes of Admir.istration, that 1988) (co!!nting cita). ' Nowever, At3 may be a different matter." Posner, Stat.
"#0'I "'F"'"#I'"' 50 U.Chil Rev. 800, I
yelles cited three factors whith influence i
i-the degra of deferen:e to be accorded an 811 (1938), Quaries t St. Clair, 711 F.2d 691,705 (6th Cir.1989). Since the amend-agency's interpretation: first, the degree of agency expert!ee necessary to reach the ments under whi:h the Se:retary claims interpretation; second. consistency in authority only date to 1979, this factor does length of adherence to the interpretation: not weigh heavily in his favor, and thled, the expil:ltness of the congree.
Third, as we have pointed out above, the nional grant of author'ty to the agener. language of ent!on 3651 does not appear, I
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- .u.. u p n: 4:. hn 4:.H:.%_ v. r v.r F.ur 1333 BROWN 4 ROOT. INC, v. DONOVAN explisitly or implicit!y. to prettet the filing Acts)." 5. Rep. No. 646, 95th Cong., 2d of internal mporte; gutte the reveras le Sess. 29 (1978), U.S. Code Cong. & Admin.
tNo. no Seeretary's reliance on Aso. News 1976, p. 7305 (emphasis added).
s pctles le unwarranted; we will not apply In rebuttal, the Steretsq draws atten.
the rule of that can in disregard of the tion to the statemet of a apansor of the polielee on which the rate le grounded. legidattom aLet me paint out that the pro.
- (A}n agency's interpretation cannot b8 tution afforded is intended to apply, enn sustained if... It confil:ta with the clear if no formal pmeeeding is actually institut-language and legislative history of the stat' ed as a result of the employee's assistance ute." Essendido at 1114, n. 22.
or participation." Statement of Sn. Gary Hart,124 Cong. Rec. M771 (1978).
IV.
However, the statemente of Individual A.
legislators. even 4ponsors, nye rnuch lese conclusive on the issue of' congressional ne legislat!ve history of section 5551 intent than are otAcial committee reporte, strongly suppsite laterpretating an "se.
and, in addition, Star.or Hart's statement tion" as similar to formal pro:eedinge un. Is not intwMnent with our ruding of the der or to admir.ister or enforce the n;tuire-statute. We und tution 3951 as mquiring ments of the Acts. Tne Conference Com-an " action" to be tirottar to the pro:endir.gs mittee report described the purpnes of the expueWy duct' bad in that sa: tion. We do section as followe:
not now consider what degree offbrmality
. no Senate Bill amended the Energy an " action" must have under that se: tim.
Reorganitst!sn Act of 1974 to provide and this appears to be the only matter I
protect!on to employees of Commission addresud by the Sestor's statement linnsees, appil: ants, cutractorn, or sub-contractors from dischseges or discrimi-3.
nat!an for taking part or assitt!ng in administratsrc or legal poseedings of Attempts to analogite sect!on 5551 to g,,,g y y,yg g,, g,1,g;,,,
the / Nuclear AgulatoqJ Co,nmission.
Tne House amendment contained no simi-Act and the Federal Mine Safety Act an lar povliin, and the conferees agned to mt pauulu. De Smm rMin on a the Senate provision.
statement in a Senate Report to the offeet that section 5951 is substantially idential N.R. Rep. No. 1790, 95th Cong., 2d Seas, to proviilane c,f the Clean Air Act and 16-17 (1978), U.S. Code Cong. & Admin. FederS1 Water Pollution Control Act, i
News,1974. pp. 7303, 7803 (emphaste add-which, the Secretary argues, were pat.
I ed).
terned on pNvisions of the Mine Safety Act The Report of the Senate Committee on (MSA). - S. Rep. No. 849, 95th Cong., 2d Encironment and Public Workers is to slmt. Sees. 29 (1918). How ever, the MSA, which far effect "This section offers pnte:tlan was amendeJ only one year befon the to employees who believe they have been ERA, contains langenge srprassly protect.
fired or discriminated against as a result of ing amployees filing internal complaints:
the fact that they have test (/ied, piren No person shall discharge or in any way evidence, or brought suit under... [the discriminate against... any miner...
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BROWN & ROOT, INC. v. DONOVAN 1333 1pcause such miner... has fded or made any effect on the government's ability to i complaint under or relating to this obtain information will be at most Indirect.
chapter, including a complaint notifying the operator et the operator's agent....
ly impaired if the filing of purely internal of an altoged danger or safety or health reports, not directed to the competent violation in a... mine....
agency,is left unprotected. Toere may be some such remote effect and this might by 30 U.S.C. I 815:cXI),'orw. dest by Pub.L. some be counted a cost of our decision, but 95-164, Title !! l 201, Nov. 9,1977. El an estension of ngulation would itself Stat.1803.
bring a burden of increased interference The ERA has no such express language, with intomat procedures, not intended by i
By the absence of this la'igunge it may be Congmas.
'as convincingly argued that in drafting the ERA Congress intended to deny protection Tne Se:retary's argument that there to the filer of an internal report. Comparb would be benefits from Incroceed reguis-sons with the MSA do not seem to be tion under se:tlan 58511s metrso clear as to helpfulin this case.
persuade un agelnet the weight of the I
ERA's language that the words of Con.
I The Secretary also M1ies en a case decid. gress mean what the See Stary asys they ed under the Nat!ans1 Labor Relatlant Act mean. In the pmaent case, for example, (NLRA), NLAB is Srris ener, 403 U.S.117, the administrative lawjudge found that the i
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92 S.Ct. 798,31 LE12d 79 (1972). How-l emP ayee falsifeed his qualifications in his I
ever, Scrit sner, in whl=h an employee gave job application and other reestde; the
-l written, sworn statements to an NLRB Judge deelded that test!rcony provided by field examiner, is not part cularly helpful in the employee was so untruetworthy thatit i
the present case, whleh involves the fding could only be considered if it were substan.
of a purely internal report. First, the t!sted by evidence over which the emptsyev NLRA expressly prohibita discriminetian had no control. Nevertheless, the judge against employees who have "given testi-found the employee had fded his guslity j
many under this Act" It does ns violence control reporta in " good faith." Tait exam.
to the langcase of the NLRA to interpret i
signed, sworn statements as " testimony." pie Indiesta that interferents with employ.
j ee+mployer relstlanships would be quita Second, the Secretary strenuously argues substantialif the Secretary's interpretation -
that the Scrinner declilan is esps:ially were adopted.
appil:able to this case because Scritener wu predicated to some extent on the possi-tacts with NLRB agents might " dry up"
'j b!Ilty that failure to protect employee con.
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the NLRB sources of information and thus undermine the regulatory structure Con-The structure of the ERA Indicates that grote had put in ploes. In Srdrener, how. se: tion 59511s dealgned to protect " whist!e ever, the government,s ability to obtain
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rincesesry information would have been di. ernmental endtles, not to the employer cor-rectly impaired if the Board's own agents paradon.
could not have contacto:t an employee with.
Sub:hapter !! of the ERA sets up the out the employee fearing retaliation: here, structure by which Congress intended the G
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c 3:34 BROWN & ROOT. INC, v. DONOVAN I
esfoty of nucir installati.sna to be as. quencan would seem to extend far beyond sured. De ssbehap:or creates the NRC the purpan and structura of the ERA. If, and its various constituent monitoring, re-se the Secretary maintains. all conduct of a search and enforcement agentles. ERA, quality control inops: tor believing he is 42 U.S.C. SI 6941-45, 5947-150. Tne offi-helping to eneum the safety of a nuclear eers of these agencies are charged with the plant le protected by netion 5S'il, then the investigatlan of puetear facilit!ss. Corre-asme would appear to bs true of all engi-apondingly, nuctur omrporatians and cons-nura and archite:ta who work on the de-
. rate off: ers are charged with ensuring sign of tite plant. Tne Se:retary's reading that safety violations am sported and that of the statute would appear to pmhlbit the ugulattens era enforced unene section discipline or discharge of such people for 8540. Offi:ers falling to report vialstions any disagreement with their employers on
. are subject to civil penattles. Thus, the any matters which involve plant ufety.
basle structure of the ERA is not dealgr.ed Momover, the same would <ppear to ha to modify the employee *mployer reistion-trde for ersry employer. Since a wide ship, but rather to rely on corpsrate offe-range of decisions in a nuclear eb:npany oers to manage the corporat!on in compli. w;ti have nme bearing on plant safety, the anoe with their obligations to ensure public Secutary asks us to adopt an interpreta-safety.
tion that would radically'rentructure the Tne role of section 59511n this legislative employee <mployer plationship in all nucle-frameworie ls clear. to protect the integrity ar corporations on the basis of a general of the regulatory structure and to gaard " catch all" provision attached to the end of against the possibility that corporate offs. a statute. If tbs statutory languages were ears will not provide the necessary informa. not enough to persuade us th,at the Seera-t!sa, section 6951 prote:te employees who tary's interpretatlan is incorrect, these lim-provide competent govemment ' efficiais itless consequences would certainly give us with dire:t information. Thus, seetbn pause.
3851 prote:ta corporate " whistle biswers."
If a corporate officer fails to att on an B.
intsenal report criti:al of safety condi-tions, he is liable under sution 5S46.
The fact that Congress has laid down, or While an individual employee disciplined caused to be laid down, more refmed and for the f: ling of an internal repsrt is not express regulst!sas concerning the nuclear ent!tled to redress under sutiza 8344, a"F industry than any other indutry in the officer respsasible for the diselpline must astion, caut!ans us against extending this bear in mind that he will be subjoet to regulatory scheme by implying protection enn:tbn. Taus. the overall plan of the of internal filings where none exista ex-ERA is to maintain public amfety not re* pressly. Trie feet that Congens has pro-structure the employeeemployer relatbn-duced so many detailed pmvisione govern.
- ship, ing the nuclear industry indi:stes the legis-In this regard we am troublad by the lature may well have attempted to ap-Se:re.ary's ina'ollity to cor.fme in a prinet. proach the line whe e it belie.ed the added pled way the ingical connquenen of his conta of regulation exceed benefits. Edgar proposed interpretation; these conte-t'. MllE. 457 U.S. 624,102 S.Ct 2629, 78 l
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y,le BROWN & ROOT, INC, v. DONOVAN 1825 I.Ed.td 249 (1982) (holding that additional VII.
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prote tlen afforded investors by stata secu-Wir are, of course, mindful that our hold-rities statutes would "overprote:t" inves-tore to their detnment); see Esoterbrook, ing in this case creates a split in the cir-offstut# Demain, 60 U. Chi.LRev. 893. cults. The Ninth Cin:uit has previeuely 841 (1993).. If this is so, for a court to held that the filing of interosi quality con.
interpret the statute to author:te "more in trol rept.na is protected by ee:tlan 8951.
1 the esme vein" will result in regulation Akaid n I/nftsuity, 735 F.2d 1159 (9th Cir.1984). Alacioniak's holding on where costs exceed benefits, upsetting the i
this issue is padleated primar!Iy on what balance intended by Congress. Id. We belteve that respect for the detailed ex.
the Ninth Circuit perceived as similar;t!ss press regulatory structure set up by Con. between the provisions of the Mine Safety gress counsels us to take a cautious sp Act ar.d se:tlan 8851.' As we have pointed prasch in interpreting the general phrase out absve, the MSA contains language ex-
"any other act!on to carry out the purpossa pressly protecting internal filings. Accord-of" the Acts. This caution is an additional ingly, the MSA, in our view, provides no reason for mterpreting the general term support for #seknid's interpretatlan of section 5951.
" action" as denoting eomething closely sim-
!!er to the " pro:eedings" expressly men.
Nackoudak also fmds a rationale for ex-tisned in section SS51.
tending prota:tha to internal filings be-csues: In a real sense, overy action by quality control inspe:ters o:eure 'in an VI.
NRC pro:seding,' because of their duty to We accordingly hold that employee con-enkree NRC ngulaum." fadnq at duct which does not involve the empisyee's 1169. One m@ d@:uhy wins raban.
I contset or involvement with a competent ale is that there appears to be no support organ of government is not protected un. for it in the Isnguage, legislative history or der section SS51. We do not purport to stmtura of the ER d< fine what const:tutes protected conduct Of equal concern to us is the fact that under ve: tion 59511 such a sieterininstion I, there is n:, principled way to contain this unnecesssey to the resolution of this case. rationale. The offs:ers of a nuclear csrpo.
We do not say that an employee states a ration and the corpsration itself are re.
claim under sectisn 5951 if he merely alleg-quired by low to enforce NRC regulatlans.
es employer discrimination on the begis of Trils wculd imply, under the Ninth Circuit employee contact or involvement with a reasoning. that 'Tijn a real sense, every competent organ of government: however, actisn by..." riuelear corporations "o: curs i-absent such contact or involvement, the 'in an NRC pro:eeding,' because of inele i
employee does not make out a claim under doty to entnice NRC regulations," so that thle ee: tion. We do not attempt to say all employee interactions with the corpora-what protected conduct under rection 5951 t;on would be protected he participation in fg we indicate only what It is not. Sin:e an NRC pro:eeding. Tnis obvisusly is not the fdings in this case were purely intvrus1, the meaning of section 8951 and neither the' 8
we hold they were not within the scope of Se:retary nor the Ninth Circuit has sug-se: tion 5951.
geared any estisfa: tory way in which this i
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its8 BROWN at ROOT. INC. v. DONOVAN ratbntle might be contained. Markouint and there is certainly no dinussion of the suggests that it only forbids the dinhorge issue in that csw. We believe that had the of qua!!ty esntrolinspecten "be:ause they snatter been argued, the outcome of that do theirjob too well." Id. Tne mtriction case might well have been different.
of the holding to quality controlinspectors appears to be unsupported by the language or structure of the statute. This effen to N,
circumvent the pla(n meaning of the stat.
In this opinion we have con:luded that ute by creat!ng ambiguity where none ex.
the Snretary's interpretation of wetion ista is unpersuasive." Escondido at 2115 5551 is unsupported by the language, legis.
(dinussing the statutory interpretation in lative history, structure or purpons of the Euondido Nutual Water k Islolic, 692 ERA. We fmd that Atchiton's conduct F.2d 1228 (9th Cir.1933),
was not p.otected under section 5951 and Tne St:and Circuit has also applied son. accordingly vacate the Snratary's or.ler and rentand the rnatter for further consid.
ties 5651 to the fding of internsi quality reports. Consolidated Ediesn a Done. eratisn not inconsistent with our holding here.
se, 678 F.2d 61 (2d Cir.1932). However, neither party challenged this appli:at!an VACATED and REMANDED.
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