ML20151K688
| ML20151K688 | |
| Person / Time | |
|---|---|
| Issue date: | 01/28/1985 |
| From: | Dircks W, Plaine H NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO), NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20151K691 | List:
|
| References | |
| FOIA-85-400, FOIA-85-409, TASK-PINV, TASK-SE SECY-85-033, SECY-85-33, NUDOCS 8503010115 | |
| Download: ML20151K688 (22) | |
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POLICY ISSUE January 28, 198s secy-as-33 (Notation Vote)
FOR: The Commissioners FROM: William J. Dircks Executive Director for Operations Herzel H. E. Plaine General Counsel
SUBJECT:
BROWN & ROOT, INC. V. DONOVAN; SCOPE OF EREDYEE WHISTLE 8E0WER W TEETION UNDER SECTION 210 0F ENERGY REORGANIZATION ACT OF 1974.
i i
Prior History: None
SUMMARY
- On December 10, 1984, the Court of Appeals for the Fif th Circuit overturned
Contact:
Jane Axelrad, IE X24909 Richard Hoefling, OELD X27013 -
Sebastian Aloot, OGC X43224 4 se smtjei!Ra w .
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a Secretary of Labor determination that Brown & Root, the Comanche Peak general
- contractor, had violated section 210 of the Energy Reorganization Act of 1974
(" ERA") when it discharged a Comanche Peak QC inspector.for identifying construction deficiencies to Brown & Root management as part of the project's QA/QC program. A copy of the decision is included as attachment A. In the court's view, section 210 only prohibits discriminatory or retaliatory actions based on reporting safety concerns to the NRC. Since the employee had no. conveyed his concerns to the NRC, the court concluded that the employee was not discharged for engaging in " protected activity" within the meaning of section 210.
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D e
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3 Discussion: I. 00L Implementation of Section 210 Section 210 of the ERA proh'ibits any employer from discharging or otherwise discriminating against an employee -
because that employee:
(1) commenced.. caused to be com-menced, or is about to commence or cause to be commenced a proceeding under this Act or.the Atomic Energy Act of 1954, as amended, or a proceeding for the administration or enforcement of any requirement imposed under this act or the Atomic Energy Act of 1954, as amended; (2) testified or is about to testify in any such proceeding or; (3) assisted or participated or is about to assist or participate in any manner in such a proceeding or ;
in any other manner in such a proceeding or in any other action to 1 carry out the purposes of this Act or the Atomic Energy Act of 1954, as amended.
42 U.S.C. 5851(a). The full text is set forth in Attachment C. The statute gives g the Secretary of Labor the responsibility and authority to enforce these prohibitions by way of reinstatement .
orders and backpay awards. 42 U.S.C.
5851(b)
+
Until now, DOL has consistently interpreted the scope of " protected activities" under the statute broadly.
It has been the position of 00L that an employee bringing quality control and/or ,
safety problems to the attention of his i: or her own management as'part of his or
. her normal duties is engaged in a protected activity under section 210>
Thus, actual contact with a representative of the NRC-is not neces-i' s.ary .for an activity to be protected.
The 00L approach has been specifically i
endorsed by the Ninth Circuit in ,
! i t
._ _-- - , _ , ~ _ _ . . _ . _ _ . _ _ _ _ . _,
-Mackowiak v. University Nuclear Systems.
Inc., 733 F.2d 1159 (9th Cir. 1984) and TapTicitly accepted by the Second Circuit in Consolidated Edison v. Donovan, 673 F.2d 61 (2nd Cir. TYHY).
!!. NRC Employee Protection Regulations 00L's enforcement of section 210 and the Commission's complementary quality-assurance program both encourage the identification and reporting of unsafe or improper practices. However, while section 210 focuses on protecting the individual employees who identify and/or report such practice, the NRC's regulatory program focuses on assuring that safety concerns are freely raised by employees and properly resolved by licensee management. Union Electric Company (Callaway Plant Units 1 ALAB-527, 9 NRC 126, 138 (1979). gpd 2),
Because of 00L's expertise in adjudicat- -
ing allegations of retaliation in the employer-employee area and in light of its expansive interpretation of " pro-1/In reaffirming the Commission's authority in this area, the Kppeal Board noted that: - i
[the] licensee acknowledged that labor practices can serve to mask construction deficiencies with serious safety implications. To take this case as an example, counsel conceded at argument 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 attempting to " cover-up" THOSE PRACTICES. (Footnote, citation omitted). Common sense tells us that a retaliatory discharge of an employee for "whistleblowing" is likely to discourage others from coming forward with information about apparent safety discrepancies. Yet, the Commission's safety inspectors cannot be everywhere, to an extent they must depend on help of this kind to do their jobs. Incidents that 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 legislative charter.
Id. at 13334
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tected activity" under section 210, the Commission's employee protection regu-lations (10 CFR 50.7) promulgated in 1982 pursuant to the Atomic Energy Act, explicitly reference sect {ogj210 of the Energy Reorganization Act. <-- Thus, 10 CFR 50.7 limits.its coverage to " pro-tected activities" and then states that
"[t]he protected activities are estab-lished in section 210 of the Energy Reorganization Act of 1974, as amended, and in general are related to the administration or enforcement of a requirement imposed under the Atomic Energy Act." 3 pct Because or the Energy of thisReorganization linkage, the interpretation of section 210 by DOL and
- the courts has a direct impact on the scope of the NRC's parallel employee protection program.
f s
. I 2/In part, the reference to section 210 was intended to Tac 111 tate the use of 00L findings by the NRC in enforcement actions based on 10 CFR 50.7.
0
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'Will a J. Dircks Executive Director'for
' Operations i
, Herzel H. E. Plaine General Counsel Attachments: As stated.
Commissioners' comments or consent should be provided directly to the Office of the' Secretary by c.o.b. Wednesday, February 13, 1985.
Commission Staff Office comments, if any, should be submitted to the Commissioners NLT Wednesday, February 6, 1985, with an information copy to the Office of the Secretary. If the paper is of such a nature that it requires additional time
.for analyti' cal review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected. s t
DISTRIBUTION:
Commissioners OGC . . .
l OPE OI OCA OIA OPA REGIONAL OFFICES
~*
SECY e
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4 ATTACHMENT A
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- BROWH & ROOT, INC. v. DONOVAN 1217 poradon. Energy Reorganizadon Act of BROWH & ROOT, INC., Petitioner, 1974, i 210(a), as amended, 42 U.S.C.A.
5 5851(a).
Raymond J. DONOVAN, Secretary of 2. Labor Reladons *:C.5 Labor, Respondent. -
Tiling of nonconformance reports with NO 83"4488- his employer by qualny co:trolinspector st .
- I**'I" #"EI"* *I*"""P" "
' ' < h -
United Sutas Court of Appeals, ed under Ewry Reo% don Act sec.
. .. . .c ' -
- Fifth Circuit. tuon which prohibiu an e=ployer from dis.
charging an empicyee for commencing, tee.
.- Dec.10,1984.
tifying in, nasiating in or partacipating in a
' proceeding for the administration or en.
Employer petitioned for review of an forcement of that Act or the Atomic Ener, -
order of the United States Department of gy Act; therefore, employer's discha.ge of Labor, which affirmed an administradve quality control laspector for those filings law judge's finding that it discriminted was not a vicladon of that **ction. Energy against an employee by discharging him Reorgani:ation Act of 1974, f 210(a), as -
for engaging in conduct protected by the amended, <2 U.S.C.A. I $831(a).
-- Energy Reorgsnization Act. The Court of "
Appeals, E. Grady Jelly, Circuit Judge, held -
that: (1) Act section in question does not protect filing cf purely internal quality con.
Peddon for Review cf an Order of the trol nporta, and (2)" filing cf nonect.for. United Suua De time:t of labor.
mance reporu by employee with his em-ployer was not protected under that sec. Before CAPJ.A. JOLLY and DAVIS, Cir.
taen, and thus his discharge for the filings cult Judges.
. was not a violation of the Act.
Vacated ar.d remanded. E. CF.ADY J01.LY, Circuit Judge: s The peddoner. Brown & Root, Inc., ap 1 Labor Reladons *25.5 peals the order cf the Secteu.y of Labor Energy Reorgani:ation Act section (Secnury) afft.tr.ing an adtr.inistradve law prohibiting an ernployer fecm discharging judge's finding that it discrur.inated an employee for commencing, tesdfying in, against an employee by discharging'him assisting in or pardeipating in a proeeciing for engagmg in conduct protected by see-~
for the administration or enforcement of tion 210(a) of the Energy- Reorganizadon~
the requiremenu of that Act or the Atomic Act (ERA). 42 U.S.C. I 5151(a). Because Energy Act does not protect the filing of we find the filing of such a npert is. net
! purely intarnal quality control nporu; protected by the stat =te, the Secntary's rather, it is designed to protect "whisde order is vacated and the case is remanded blowers" who provide informadon to gov. for further consideration not inconsistent
' ernmental entides, not to the employer cor. With our holding here.
Era . $,i,.6, ud Eer N.me.e Class #=esma .
CorYRIGHT (, the Dr WEST rUttisHING CO.
The $ranese, $rt,sh and Ker k.sene Cansaaf. .
som n.s,... .s un et we era.a et uw es.n.
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1218 BROWN & ROOT. INC. v. DONOVAN
- 1. nmoved from the team and the defects
- fe f* mapped, but Erandt still considered Brown & Root was the prime contractor the number of defects excessive. It v an t
at the Comanche Peak Stasm Dectric Pow- later discovered that Brandt had ordered er Station, a nuclear generating facility near Glen Rose, Texas. In December 1981, . the wrong standard sei in the inspecuen.
Charles Atchison became a field quality The third NCR, No. 361. drafted by At.
, controlinspector for Erown & Root at the thison la Apr01982, contended that certain Comanche Peak site. It was the duty of a inspection tasta conducted by inspectors
. quality controlinspector to issue a noncon- employed by Texas 1.idlity Generating
- f onnance nport (NCR) whenever he detect. Company, the owner of the Comanche Peak ed a condition which he considered did not insulla invalid bem W W meet contract spuffications.' . Atchison spectors were not properly qualified. A was spu!fically responsible for inspecting draft of this NCR wu left on a superior's pipe. whip restrsintrinstallation welda. The desk ws. t h a note that the NCR had not yt.t controversy in th.e case centers on three been tasued and est Atch.. mon was age
. N NCRs issued by Atchison. The first, "the a e to dscusing A Soers) days later
- 6:2 level incident," concerned defects no- se spor uld AteMson dat M intended
- ticed in March of 1932 by Atchison in welds neommending ee voiding of NCR No. 361, which were not his specific resperaihility and Atchison vo, iced no objectaan. The
-' -but which were located near those he was NCR, with Atchison's note stuched, was .
inspecting. After this incident, Atchison's .
riven to Brandt along with other papers, immeasta supatior informed him that Including the superior's promotion recom.
Brandt, the vlumate superior, thought At.
mendation for Atchison. Erandt and Pur.
chison vu inspecting beyond the scope of ,
dy, ar.other superior, tastifwd that they his job. The area wu later reinspected int *fPf't*d the note en the NCR as an and the existance of some of the defuts Attampt to g6 I""*ge or negodata wu that Atchison had reported wu confirmed.
regard to the reco= mended promotion. On The second incident, "NCR No. 296." April 12,1982, Brar.dt sent Purdy a memo.
also occurred in March 19'2, after a craft randum sating that Atchison's services '
supervisor asked Atchison to inspect some were no longer required becaue "he refus.
welds on uninsulted pipe-whip restraints es to limit his scope of responalbility "
that the craft supernsor believed to be Purdy testified that because he was ur.able defective. Four men were sasigned to map to place Atchison in another job, he fired the defects in the pipe whip restrainu.
him. * *'
Brandt was not sansfied mth the tearn's Atchison made a timely complaint that he fint report, feeling that it showed an im.
was discharged for activity protacted under pou'Me number of defects. Atchison was '
. tion to (1) anach a *holf ur to prevent harsher
- 8. Aa NCR la a *touune intemal repen* by
'.) whch a f, eld erwahey conitol (r.spector notas a worL: (2) obtain sa NCR number from the NCR
>. coord4rutor, (3) emner the NCR oumtwr of the
% .* condanon thaa either appears not to con. form so hold 4ag (4) drah an NCR describing the condi.
appi, cable concruction specifications or to teon &Ad Fr.apping ses locauctu arid (3) submal which epecif6cai6cns the fact of degree of Core the drah NCR for approval to the quahry con.
- formance is andeterminani. The procedutaa te.
trol supervisor.
quire the inspector who observes such a conde .
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BROWN & ROOT, INC. v. DON 3 VAN use 4
section 5851(a).8 The Department of 1Aber intraccrporste quality control report. We invesdrated and agreed.8 The admmisers- hold that the filing cf such a report is not tne law judge found that Atchison had lied protseted by the sututa. his decision is on his job application, falaLfied documents. predicatad on three canalderations: first, was a totally unreliable witness and that the stan: tory harvage cannot be stretched nothing he said could be believed without to encompass such a fUing. Secamd, the
,indepen d ent eono b oraton.
i She held with legisladve history of the Energy Reorgani.
Atchison, however, that fDing an NCR was sation Act (ERA) does not support such an a protected activity, that Atchison was extension of the mest.ing of aestion 5851.
fired for filing the NCRa in " good faith." Third, the structure cf the ERA indacates and that the reasons given by Bromm & that action $&51(a) is des @ned solely to
- .. , Root for the discharge were pretarts. protect from retaliation corporate " whistle
- he administrative law judge recommended blowd who inform responsible officials .
reinstatament, back pay, and attermey's ,g ,,,,,,gg, ggg;,gg, fees. De Secretary of Labor affemed the -
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administrative law judge's decision with III. -
the asception of the reinstatament which was denied because Atchison had falsified ^-
his educational qualifications for this crit.
De language of action 5&51 enanot be ical job on several occasions.
construed to protect the fUing of purely Intarr.a! quality control reperta. De role.
II. vant bruage pro o na employer disch 11.2) he disputa in this case concerns r.ation against s.n employee who ban: _
' ' . whether under d2 IJ.S.C. I 5851(aX3) an o. a proceedag under (1) ocmmenced -
employer is barred from discrimlaating
- - . ~ this chapter or the Atetnic Energy Act of aga!nst any employee for the filing of an (3) naaased or participsied er la about to 1 Section $451(a) provides:
- a aisi er participue ln any manner in nach No employer. Italuding a Comr:usaaea l a proemeding er la any other smaaner in eenese. an appliaans for a Comrassanon li. swh a proceeding or in any eaher aaien to seene, or a sentractor or a subcontractor of a sarry sus the purpones c! this abapaer or the Commina4en licenare or apchsant, may dia. Aserruc Enerry A81 of 19$4. as namended {42 sharge any employee or otherwtas diacrimi. UA.C. 2cIl et aar,.).
nose agamai any emp6 eyes with torpact to his compensaison, terms, conditions. or privileges 3. Pursuant to 29 CJ.R. (( 24.124.9 and 42 of empleyment $sesaume the employee (or any t!3.C. I Stilfh).
- person acting pursuant is a roguest a! the As she hearing helete the admarunicative law I
4.
commenced. cauand to be sesnmenced.
e io .e wen- r- ua-,wr -e =
., it a m t io ,am ,ne,m , e, Anninen was aer aDagmg d.at be inad been fired
- commeneed a prosseding under this chap. for filing NCAa bus rather for threnaaning to po ser of the Atomic Energy Act of 1954. u se the Nuclear Replanory Conninaien. No evt.
amended (42 t!3.C. 2oti et seq.L or a pro, densa adduend at tru! = ould suppnri aa taler, q caeding for the admansarminen er enforce. enca that ary of the marageweent, pertennel
- . mens of any requirement impoemd under levolved in Atchanen's terzur.anaan twere aware
" this chapier er the Aieeve Energy Act a,( el such threata. Tae A1J. however. based her i 19$4. as amended; deeseen en her finding that Brown had Root (2) sessified or es about to sesaify in any tere'.inated Aichinen for Isling NCAa.
such proceeding of.
1:20 BROWN & ROOT. INC. v. DONOVAN ,
1954 (together referred to below as "The eral term alter a list of specifics to mean Acts") ... or ... for the administration something wholely unrestrained by the spe.
or enforeement of the requirements of cifics. Although this is merely a common-
. . . (the A cts). sense rule for intarpreting a sentence, in cases of su:utory construction we know (2) tastified ... in any such proceeding h rule u "ejusdem generis." 2A C.
~
(3) assisted or participated ... in any Sanda. SufAertend Statutory Construe-
-- manner in such a proceeding or in any Lion i 47.17 at 103-04 (3d Ed.1973) (1583 other sedom to carry out the pu. poses of Supp.).
- ... [the Acu). The Secretary has urged the word "ae.
- :. 42 U.S.C. I 5851(a). dens ** be cons: rued as any conduct or act. -
The Secteury does not contend that the but such a meaning seerns unlikely. First. ,
- filing of an internal quality report could be the Secreury's construc6en runs against ,
either a " proceeding under" the Acts or a the common sense rule discuseed above.
" proceeding for the administration or en- Moreover, the statute protects pardelpation forcement of" the Acts: " proceeding" con- "in any other action," which implies an cededly refers to a fortnal legal or adrainis- "acdon"is a kind of structured proceeding N trstive proceeding as the term is used in in which a person may participate, not jast secuon 5851. Thus, the act of filing must any act a person may perform. The Secre-be rticip6cn "in any cht aebon to tary argues that the proceedings expressly
. carry out the purposes of" the Acts if it is listed exhaust the class of a31 thinp airnDar
. protected eenduct. Putting aside for the to these. proceedings and therefore main. ..
moment the broader quesuons of purposes ta ns that " actions" must be given a mean-and policies behind section 5851. we ing beyond this class of similarity. We do first exa:nine what meaning an ordir.ary not spee that the listed specifies exhaust reader would give to the language o'f se<* the class. For example, ahhough we do tica St.51. 'TI)t should be generally as- not decide a matter not before us, it ap-sumed that Congress expresses its pur* pears that a congressional investigatory poses through the"ordinary meaning of the proceeding or other official investigations words it uses.. Escondido Mutuct are quiu liWy "tetions" bearing sufficient Wcter v. La Jolla. - U.S. 104 S.Ct. ,jm;g,3,y 2 ..procaeding u ider" h Acu ,
2105. 2110. 80 led.2d 753 (1954). Absent ,, ..peding for W ad.nirstration or a clearly expressed legislauve mtendon to enforcement" of the Acts to warrant pro-the contra y. sututory language must orde. te don under secdon 5&51.
carily be regarded as controlling. Id.
. Second. the Secreary's interprett. don y Because the general term "in any chr would render much of the language of see-sedon" follows a reference to specific types den $151 redundant. !! the word "acdons" ,
of proceedinp. It is most reasonable to has his suggested rnaaning. then the mean- .
' presume that the terTn "acnons" refers to ing of the enure section could just as easily something simnar to the specific proceed. have been expressed without mention of ings meadoned earlier in the sentence. any "proe,eding" st all. Such a construe.
Only excepdonally does a writer use a gen. taen seems struned. Meltzer v. Board of a
. . _ , . . - . . . , - - , - . . - - - . . . - - -,_~ - .- , - . , - - - - _ _ . - . - . , - - . - , . - - - - - - - - - - - . . _ _ _ _ . - - , , - . - - - . _ - - - - - - - - - - . .
e-BROWN & ROOT, INC. v, DONOYAN 1=1 public Instruction, 548 F.2d 559 n. 38 (5th None of thee fmeters support the Secre.
tary in the present case. .
Cir.1977).
First, the Seentary of Labor dcIes not Tnird, a statuta should be interpreted in its entirety. Su Sutherland at 37. The appear to have great expertise in mattars language of the remainder of the ERA of nuclear safety. See Tord #ctor Credit
- v. Nilhollin, 444 U.S. 555,100 S.Ct. 790, does not support the Secretary. The word "acdon" is not used elsewhere in the ERA 797,63 led.2d M (1980), Awayalles at 911.
to mean general conduct. Section 5871(e) While section 5851 conearns employee pro-
- r.
. begina: "no suit, acuan or other proceed. tecdon to some extant and the Secretary is *
. ing....." (emphsais added). implymg an charged generally with matters concerning
" action" is a kind of proceedinr. Section the empicyeeemployer relationship, ~ we - - *
- - 5851(e), enaded " Commencement of Ac- cannot ignore the fact that seedon 5851 is tion," authorizes the Secretary to file a primarily designed to serve the raajor pur-
" civil sedon" and statas: "In actions poses of the ERA, in this cue, nuclear brought under this subsection...." We safety. Nuclear energy involves questions usually presume words are used consistant. cf great scientific and engineering sophisti.
ly through a sututa. Id. In summary, it cation well beyond that required in ordi.
seems highly unlikely that an ordinary nary industrial relations. The Department writer of English would have used the of Energy (in particular,the Nuclear Regu-11 tory Commissica) has specal co=petence
.. words of secdon SE51 to mearrwhat the ,
Secreury says they mean. It is much in this area, not the Department of Labor. '
more tikely that " action" is used to mean Second. the length of time in which the something st::ular to formal proceedings Secretary hu adhered to his interpnution under the Acts or for the admm, istration or of the aututa is not grsat. Under Asc-enforcement of the requirements of the yelles the Secteury's cpinion, especially if Acts, left undisturbed by Cengrena,is to be tak-en u evidence of congressict.al meaning, but **[t]here is no reuen to expect
- Min-B.
tradu agency memben u Way a speenal The Secretsry claims that his interpreta, fidelity tc the enginat intant cf the legisla- -
den of secuen f,851 is ent;ued te substan- ton raun than the ment iclicies of &
tial deference as the intarpreution given a Administration and the Congresa.... If statute by the agency charged with its the inta pret: tion has persisted through administrstion. Avoyelles Sportsmen's sout! changsa of Administrsdon, that League r. Nersh, 715 F.2d 891 (5th Cir, may w s dWennt matter." Posnu, Sw. .
- 1963) (collecting cites). However, Aio- utoy integniotion. 50 U.Cni.LRn. 800; peller cited three factors which influence su mt ). beries ts St. Clair,111 F.2d .
the degree of deference to be accorded an 691, ~10( (5th Cir.1913). Since the amend.
agency,s intarpretacon: first, the degree menu under which the Seentary claims 1 of agency experuse necessary to reach the authohty onh data to Im. 6 f acer does interpret. tion; second. cor.sistaney in n t weigh heavily in his faver.
length of adherence to the interpreudon; Tnird, as we have pointed out above, the and third, the explicitness of the congres.
lang. age of secdon $551 does not appear, sional. grant of authority to the agency,
- - - . - . - - , - --.------.--~~v - , - - - - - . . . - - . ~
12:2 BROWN & ROOT, INC. v. DONOVAN 5 ,.
- axplicitly or implicidy, to protect the filing Acts)" S.hp. No. &48, 95th Cong., 2d of internal reperu: quite the mverse is Seu. 29 (IM8). U.S. Code Cong. & Admin.
'"true. The Secretary's reliance on Avo. News 1978, p. 7303 (emphasis addedL ~
yelles is unws.rranted; we will not apply
.-
- _. the rule of that case in disregard of the In rebutal, the Secremry drawn useo.
policies on which the rule is grounded. tion to the sutament of a sponsor of the
--- . - '*[A)n agency's interpreu: ion cannot be g gg gas;,n. .14t me point out that the pro. .
.. - .. sustained if ... it conflicts with the clear taction afforded is intended to.. apply, even ~
.c::. language and legisladve history of the sut. if no formal proceedang is actally insticut.
- : - uta." Escondido at 2114, n. 22- ed as a result of the employee's maalstanes
'~
- or participation." Statement of Sen. Gary \
Eart.124 Cong. Rec. 29771 (1978).
IV. g However, the statements of ladividual
. A. legislators, even sponsors, are much less N The legislative history of secdon 5851 conclusive on the issue of congressicnal strongly supports mtarprtuting an "ae. intent than an official comrni: ee repons, tion" as similar to formal proceedings un. and in addition. Senator Hait's statemese der or to administer or enforce the require. is not inecasistant with our reading of the
.. ;ments of the Acts. The Conference Com* sutute. We read secuen 5351 as requiring .
-- mittee report described the purposes of the an "acdon" to be similar to the proceedings secdon as follows: expressly described in that secdon. We di) '
not now consider what degree offarmality Tne Senata Bill amended the Energy an "acdor," must have under that waion, Reorgar.i:ation Act of 1974 to provide and this appears to be the only snatsar protection to employees cf Commission addressed by the Senator's statement.
licensees, applicants, contractors, or sub.
contrseters from discharges or discrimb B.
nation for uldng part or assist.ing in adminutrative or legal procee6ngs of Attem ts to analogise secton SE51 to ,
the [Nuelscr Regulatory) Commurion. perdens of tne Natic .at Later Relations The House amende)ent conuined no simi. ,,, ,,g ,,, 7 ,g,,,3 gg,, g ,,,,, g ,, ,,,
las provision, and the conferees agreed to not persuasive. The Seerstary relies on a th' S*""** Pi'N"- su t in a hte P crt to the dfat that section 5851 is subsumt.ially identical -
.f
-- -H.R.bp. No. 1796, 95th Cong., 24 Seu. to provisions of the Clean Air Act and' '
" 17 (1978), U.S. Code Cong. & Admin. Federal Water Pollution Control Act,
~ News,1978, pp. 7303,7309 (emphasis add-which. the Secretary argues, were pat-
~
ed).
terned on previsions of the Mine Safety Act The Report of the Senata Comminne on [MSA). S. Rep. No. 648, 95th, Cong., 2d 1
Inv.ronment and Public Workers is to simj. Seu. 29 (1978). However, the MSA. which lar effect: "Ihis section offers protection was amended only one year before the to employses who believe they have been ERA. conuins language expressly protect - '
fired or discriminated sgs. inst as a result of ing ernployws filing internal complaints:
the fac't that they have test (Sed, pren No person shall discharge or in any way evidence, or brought suit under ... fthe discriminate against ... any tainer ... .
BROW & ROOT, INC. v. DONOVAN 1223 becauw such miur ... has (ded or made a complaint under or relating to this any effect on h goverr. ment's. ability to obtain information will be at most indirect.
- .- 2- chapter, including a complaht notifying ly impaired if the filing si purely internal the operator of the operator's agent, ...
of an aJ3eged danger or safety or health reporu, not directed to the competent violation in a ... mine.... agency, is left unprotected. There may be some such nmote effect, and this might by 230 U.S.C. I 315(cX1), amended by Pub.L some be sountad a sost of our decision, but a-- 95.-144, 'htle Il i 201, Nov. 9, Ig77, 31 an enension of regulation would heelf a Stat.1803.
- % e .N ; bring a burden of increasd interfenna
- ~ .g.he ERA hu no such azpron knguago *I'h I"S*FS$1 Pr***dures, not inunded by ,- - ,-
By the absence of this language it may be Congnes, as eenvincingly argued that in drafting h
., ERA Congress latended to deny protection % Seenary's argument that there to the filer of an internal report. Compari. would be benefiu from inerensed regula.
sons with the MSA do not seem t's be tion undir sectka 5851 is not so clear as to
. helpful in this case. persuade us aralmt h weight of h
- ERA's languge that the words of Con.
>-:
- N Secretary also relies on a eue decid.
tross mean what the Secretary says they -
mesa, a - ed under the National labor Relations Act la the present ease, for example, (NLRA), NLRA r. Sm'wner,~405 U.S.117, the administrative law fudge found that h .
- - 92 S.Ct.194, 31 L.Ed.2d 79 (1972). Now. employee falsified his qualifications la his ever, Smwner, in which an employee gave job appliation and cther records; the written. swom statemenu to an NLRB judge dwided that testimocy provided by field examiner, is not particularly helpfulin the employee was so untrustworthy that h the present cue, which involves the filing could only be seasidered if it were subsan.
of a purely intarnal report. Mrst, the tiated by evidence over whi:h h employn NLRA expressly prohibiu diserunmation had no controh Nevertheless, the judge against employees who have "given testi-found h e.ployee had fDed his guth%
many under this Act." It does no violence control nports in " good is!th." '!*nis eum.
to h language of the NLRA to laterpret sig1,ed, swo.v. statemenu as "watimony." pie instate that interfenna Mth empicy.
Second, the Surnary serenuously argues oe<mployer nlationships would be quite that the Smwner decision is especally subsuntklif h Seemury's interpretation wen adopted.
applicable to this cue because Seriwner was predicated to some ertest on the possi- ,
y* . S-bibry that failun to protect employee son- .
tacts with NLRB stenu adght " dry up" A. .
the NLRB sources of informataos and thus _ .
. undermim the ngulatory stmetum Ce The structum of N IRA indicates that' rress had put in place. In Seriwner, how- section $451 is designed to protect " whistle
- ever, h government,s ability to obtain bkwrs W #de bfe.sh a gov.
recessary information would have been di- Me 2 the g l m r m .
rectly impaired if the Board's own egents P*raden-could not have contacted an employee with.
out thi employee fearing re:abation; here, Subchapter !! of the ERA sets up h s structure by which Congress intanded b g- .
s p
a 1:24 BROWN A ROOT, INC. v. DONOVAN a,.
. . safety of auc!aar lastalladons to be as- quences would seem to extend far beyond c . ... .sured. The subchapter creatas the NRC h purpose and structun of & ERA. If,
. . . _ and its various consutuent monitormg, re- as W Secreury maintahs, all conduct of a
. search and enforcement agencies. ERA. quality control inspector believing he is
. 42 U.S.C. H 5641-45, 584~.50. The offi- helping to ensun h safety of a nuclear
. . . cers of these agencies are charged Mth the plant is protected by seedon 5851, then the
. .. . . investiration of nuclear facilides. Corre- sanw would appear to be true of aD engi-
. . . . . spendingl y, nucl ear corporations sa d corpo- neers and snhitects who work on the do.
. - _ _ ' rate officers are charged with ensuring sign of the plant. The Seentary's readmg *
. .: that safety violations an nported and that of the statute would appest to prohibit h -
ngulations are enforced under section discipline or discharge of such people for 5846. Offkers failing to report dotadcas any disarrament with their employers oc an subject to civ0 penaldes. Thus, the any rnatters which involve plant safety, basic structure of the ERA is not designed hioreover, the same would appear to be N to modify the employee-employer relation- true for every emplayw. Since a wide ship, but rather to rely on corporate offi- rsage of decisions in a nuclear company
.cers to manage the corpersuon in compli. will have some besang on plant safety, the .
., - ,ance with their obligations to ensure public Secreury uks us to ado;t an interpreta-
. safety. tion that would rsdica!!y restructure the .
The role of sec0cn 5851 in this legislative employee employer relt.tiorahip in all nucle.
framework is clear. to protect the integrity si corporations on the basis of a general of the regulatory structure and to guard " catch all" provision stuched to the end of against the possibDity that corperste ofS. a sututa. If W sututory languages were cars will not provide the necessary informa. not enough to persuade us that the Secro-tion, section $851 protecu employees who tary's intarpreution is ir eerrect. these lim-provide competent government officials itlass consequences would certainly give us with direct informauen. Thus, secdon pause.
5!51 protects corpctsta "whistje blowers." ,
if a corporsta officer fails to set on an internet report cridcAl cf safety condi. B.
tions, he is liable under section $646. The fact that Congress ha.: laid down, or While an individual employee disciplined caused to be laid down, more refined and
. for the filing of an internal report is not express reguladons concerning the nucigar C
,. _entatled to redress under secuou 5846, anY industry than any other Industry in W *
. officer responsible for the dacipline must nadon, cauuons us against extending this -
. . bear in mind that he will be subject to regulatory scheme by implying protection ~
sanction. Thus, the overall plaa of the of inurnal filings where none exists as-ERA is to mainuin public safety not n- pressly. The fact that Congress has pro-structure the employee-employer relsdon- duced so many dealled provisions govern-ship. ing W nuclear industry indjentas the legis-In this regard we are troubled by the lature may well have attempted to ap- .
Secteury's inability to confine in a princ3 proach the line when it believed the added ,'
pled way the logical consequences of his cosu of regulation exceed benefits. Edgar proposed interpretauen: these conse- t'. N/7'E, 457 U.S. 624,102 S.Ct. 2629, *13 s
. * . . t ,'
6 1:25 BROWN & ROOT. INC v. DONOVAN
' VII.
I Ed.2d 269 (1982) (holding that additional
- prosecuen afforded in estors by sute secu* We are. :/ eeurse, raladful that our hold- ~
rities statutas would "onrprotect" inves. ing to ela case creatma a split la the cir.
nors to their detriment!; sw Eastarbrook, culu. The Ninth Circuit hna paviously Statulae' Domain, 50 U. Chi.! Rev. 533' held that the filing of latarnal goaliry con-542 (1983). If this is so, for a court to trol npru is proucud by ma 8451.
Interpmt h statute to authorise " mon in MackW r. UnWm 't35 F'M 1150 the same vem" will result in ngulation (94 Cir.1984. Nu " 2 's Wg on '
where eo.ts neeed benefits, uputting tha this issue is prediented prusar0y on what
, balance intended by Congrena. Id. We h Nine Cirtuit preebd u sirh6m believe that respat for h detailed u* between the provisions of W Mine safety press regulatory structure set up by Con- Act and section 5851. As we how pointed gress counsels us to take a cautious ap- out aben, h MSA conuks igum u.
preach in interpreting the general phrmae prudy pnucung k*.a.ml filings. Acad.
"any other metion to carry out the purposes g3,g y , g 34g4 g3 ,,, g pg,,
of" the Acts. This cauuon is an additional support for Mackeir ak 's intarpeetatica of rasson for mtarpredhg the general term action 5&$1. .
- -
- action" as denoting something closely sim- % .
- aakowiak also ftnda a rationale for ex. a ilar to the " proceedings" espnssly men. tanding protection to internal filinp be-tiened in section $151. cause "In a real sense, every action by
- quality control Inspectors occure 'in an VI. NRC proceeding l because of their duty to enforce NRC ngstations? #ackowick at We accordingly hold that employee con- 113. One rasW hulty wie ek radom duct which does not involve the employee's &le h eat Sem AFPa&M to b #8 uppen contact or involvement with a competent for it in be language, leWn history or e gan of governmen'. La not protected un- ' ' ' " ' ' " " ** ,
der secuen 5851. We do not purport to Of equal eencern to us is the fact that define what constitutas protected conduct there is no principled way to eenuin this under secuun SA51: such a detarmination isrationale. The c!T.cers of a nuclear corpo-unnecessary to the resolution of this case.
rsuon and the cerpcration Itaalf are re _
- .. We do not say that an employw states a .
claim under nection 5&51 if he merely alleg. quired by law to enforce NRC regulaticas:
m employer discrimination on the basis of This would irnply, under the Nir.th Circuit nasoning, that "[i)n a real serine, every employn contact or involvement with a competant orgsn of government; however, sedon by . .." nuclear corporations "oecurs
'in an NRC proceeding / because of hir ,
absent such contact or involvement, the duty to enforce NRC ngulatsens," so that employee does not make out a claim urder all amployu interactions with the corpers.
this secdon. We do not attempt to say 6en would be protected as parJcipation in what protected conduct under section 5851 an NRC proceed.ng. This obviously is not .
U; we indicate only what it U not Since the filings in this case were purely internal, the maardng of section 5451 and neither t we hold they were not within the scope of Secretary nor the Ninth Circuit has sug.
gested any sathfactory way in which thh swtion $451.
e
.. ** t.' . .
. lt . .
1224 -
BROWN & ROOT, INC. v. DONOYAN rationale might be contained. Nukewud and then is cerulaly no discussion of h auggests that it only forbids the discharge issue la that ease. We believe that had the
.. . . . of quality sentrolinspoeters "beesuse they masser been argued. the esteonw of that -.
i , , . .. _ . .,. de their job too well." 14. The restnesion case might well have been differmat. :
of the holding to quality eentrolinspectors -
l appears ta be unsupponed by the language - -
or structun of the autute. 'This effort to .
! -. .. .. ... circumvent the plain meaning of the stat. In this opinion we have eencluded that .. -
.. .. une by armating ambiguity when none an. the Secretary's interpretation of necties . -
, . . f ..
.e ists is unpersuasive." Issendido at 2115 5851 is unsupported by the language, legis. . . .
i (dancussing the statutary laterpretation in ladve histary, structure or purposes of the - --
l ... Kacendide Natual Water v. 4della, 892 ERA. We find that Atchison's condest
! T.2d 1223 (frth Cir.1983), was not protecad under section 5851 and The Second Circu}t has also applied sec. **** d"II I '"**'* 'h* 3**"'7 '8 M tion $851 to tne f3ing of internal quality "*d nmand de matter for fder so4 s nports. Consolidated Edison v. Dono. e e.n not inconsistent MA our holding ocn. 673 T.2d 61 (2d Cir.1982). However, hen.
. r neither party cha!)enged this application VACATED and REMANDED.
- l. '
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! Adm. Office. ll.1. Couru-Weet Pubishing Company. Sunt Paul. Minn.
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-~~__. _ _ - _ _ _. _ _ _ _ _ _ _ _ _ _ . _ _ . _ _ __ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ . _ - _ - _ - _ _ _ _ - _ - - _ - _ _ _ _ _ _ _ ~__
L.*
ATTACHMENT C
- g \
D as .
o O
163 l
deems it necessary'to carry out his responsibilities. Not- !*
withstanding the precedmg sentence, each such director
~ l . C.; shall keep the Executive Director fully and currently I . . . .. .
informed concerning the content of all such direct com- 6 munications with the Commission.' .
" c) The Executive Director shall report to the Com- sei s i mis (sion at semiannual public meet,ings on the problems, #,,,,, !
progress, and status of the Comnussion's equal employ ar*'t.
ment opportunity efforts."
"(d) The Executive Director shall prepare and forward w =.
to the Commission an annual report (for the fiscal year
- 1978 and each succeeding fiscaly on the status of the Commission's programs concerm, car) domestic safeguards
. ng matters including an assessment of the effectiveness and adequacy of safeguards at facilities and activities licensed ,
by the Commission. The Commission shall forward to the Congress a report under this section prior to Febru- y*=
ary 1, Iwy, as a separate document, and prior to Febru- j ary 1 of each succeeding year as a separate chapter of the Commission's annual report (required under section 307(c) of the Energy Reorgamzauon Act of 1974) follow-ing(the fiscal year to which such report applies.iie)* gagsen. There shall be in the Commiss five additional officers appointed by the Commission.
The positions of such offiars shall be considered career r itions and be subject to subsection 161 d. of the 3 tomic Energy Act.
"unnssoi.vuo s4rrn issuss ri.4w l
i
" Sac 210. "The Commission shall develop a plan pro- 42 u.s.c sess.
viding for the specification and analysis of unresolved safety issues relating to nuclear reactors and shall take such action as may be necessary to implement corrective measures with respect to such issues. Such plans shall be submitted to the Congress on or before January 1,1978 in and progrets reports shall be included in the annual .,,,
report of the Commission thereafter.ia ,
"surtovas enormenow
" Sac 210. (a) No employer licensee, an applicant formissionlicense a Com, includina ora con-a Commission 42 u.s.c sesi. -
tractor or a subcontractor of a Commission h,eensee or . .
appli, cant, may discharge any employee or otherwise dis- ,
enminate against any employee with respect to his com-eensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a
- request of the employee)-
-(l) commenced, caused to be commenced, or is about to commence or cause to be commenced a
(-'
proceerling under this Act or the Atomic Energy Act gr.nigneseos i,2 se sesenatetei..=.av.i 4 4 s.n asertinr .44=s ,
out,es. 45. %
a :
12:$I5NT:N'eII' YbassiengN i' se '
O
164 e u s c.ssii of 1954 as amended or a proceeding for the adminis-tration,or enforceme,nt of any requirement imposed under this Act or the Atomic Energy Act of 1954, as '
amended;
- 2) test ified or is about to testify in any such pro- '
m
"(3),g or; assisted or participated oris about to assist or .
participate in any manner in such a proceeding or in any other manner in such a proceedmg or m any other action to carry out the purposes of this Act or ,
the Atomic Energy Act of 1954, as amended.
~
- ,"(b)(1) Any employee who believes that he has been .
discharged or otherwise discriminated against by r-
.' ~ --
son in violation of subsection (a) may, within tlu,any rty after such violation occurs, file '
i- *- --
on his behalf (hereinafter in) a complaint with(or the Secretary of Labor have any person ;
this subsection referred to as the 'Secre-4 tary) alleging such discharge or discrimination. ,Upon receipt of such a complaint the Secretary shall notify the person named in the complaint of the filing of the com-plaint and the Commission.
h===, "(2 Upon receipt of a complaint filed under para-
',",,a :
grap the Secretary shall conduct an investi the vi non alleged in the complaint. Within 'on of days
~
of the receipt of such complaint, the Secretary sha com- 3
.plete such mvestigation and shall notify in writing the /
omn. complainant person alleged to(and have any committed person suchacting violationinofhis the behalf) and the ( -
results of the investigation conducted pursuant to this subparagraph. Within ninety days of the receipt of such complaint the Secretary shall, unless the proceeding on the complaint is terminated by the Secretary on the liasis i of a settlement entered into by the Secretary and the i person alleged to have committed such violation, issue an order either providing the relief prescribed by subgera-
.w graph (B) or denying the complaint. An order of the Secretary shall be made on the record after notice and '
opportunity for public hearing. The Secretary may not enter into a settlement terminating a proceeding on a s complaint without the participation and consent of the complainant.
amt.
"(B If, in response to a complaint filed under para-graph)(1), the Secretary determines that a violation of subsection person who(a) has occurred, the Secreta shall order the committed such violation to tive action to abate the violation complainant to his former posit lon together with the andthe reinstate ( ))takeaffirma- '
, terms, conditions, compensation (including and privileges of his employment, an back pay)d the Secretary may order such person to provide compensatory damages to [*
the complainant. If an order is issued under this para-graph, the Secretary, at the request of the complamant shall assess against the person against whom the order is -
issued a sum e ual to the aggregate amount of all costs and expenses neluding attorneys' and expert witness -
fees)reasonabl incurred,as determined by the Secretary, .,
by the complainant for, or in connection with, the bringing I
e
(
I e r
_ , _m.---m-
~
i . .' i l
. l 165 l
of the complaint upon which the order was issued.
, ( "(c)(1) Any person adversely affected or aggrieved,by acw= , .
an order issued under subsection (b) may obtain review of the order in the United States court of appeals for the circuit in which the violation, with respect to which the order was issued, allegedly occurred. The petition for review must be filed withm sixty days from the issuance of the Secretary's order. Review shall conform to chapter I 7 of title 5 of the United States Code. The commence surem ment of proceedings under this subparagraph shall not, ""*
unless ordered by the court, operate as a stay of the -
i order.
Secretakn order of the Secretary with respect to which
"(2) -
i review could have been obtained under paragraph 1 -l shall not be subject to judicial review in any ennunal(or) other civil proceeding.
ord(d) er issued under subsection (bX2), the Secretary mayWhenever a per i file a civil action in the United States district court for the district in which the violation was found to occur to enforce such order. In actions brought under this subsec-tion, the district courts shall have junsdiction to grant all appropriate reliefincluding, but not limited to,injunctive , '
rehef, compensatory, and exemplary damages.
'. " eXI) Any person on whose behalf an order was .
issu(ed under paragraph (2) of subsection (b) may com- -
t i
' mence a civil action against the person to whom such , ,
order was issued to require compItance with such order.
- The app,ropriate United States district coun shall have jurisdiction, without regard to the amount in controversy ,
or the citizenship of the parties, to enforce such order.
subsec) tion, may a, ward costs of htigation (including reas "'""(2 The court to any party onable the whenever attorney and expert court determines such award witness fees)isappropnate.
"(f) Any nondiscretionary duty im d by this sec- . g tion shall be enforceable in a ma mus proceeding brought under section 1361 of title 28 of the United States Code.
l
"( ) Subsection (a) shall not apply with respect to any emp oyee who, acting without direction from has or her emp oyer (or the employer's agent), deliberately causes,a violauon of any requirement oT this Act or of the Atonne
. Energy Act of 1954, as amended.i2 42 usc.nois. -
"TITLEIll-MISCELLANEOUS AND -
l " TRANSITIONAL PROVISIONS .
"TRANsmoNAL PRovislONs "Sec301.
/ whenever all(a)f o the functions or programsncy, of an aExcept
'8"""* "d as otherwise provided in
- l. . or other body, or any component thereof, affected by this M sets. .
Act, have been transferred from that agency, or other '-
body, or any component thereof by this Act, the agency, l
t ~
upg,ggig g,9540 2 sist. 2951)(1978i. see. l0 duphonied the asessen musnbar 210.
I t
%