ML20154C069
| ML20154C069 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 07/11/1984 |
| From: | Hayes B NRC OFFICE OF INVESTIGATIONS (OI) |
| To: | James O'Reilly NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION II) |
| Shared Package | |
| ML20154C060 | List: |
| References | |
| FOIA-85-584 NUDOCS 8603040565 | |
| Download: ML20154C069 (17) | |
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HRDenton/NRR 1
UNITED STATES RCDeYoung/IE
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NUCLEAR REGULATORY COMMISSION N Cunningham/-
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-l W ASHINGT ON, D. C. 20555
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%..... J' July 11, 1984 MEMORANDUM FOR:
James P. O'Reilly, Regional Administrator i
Region II So W/3/y/ /
/'t i
FROM:
Ben B. Hayes, Directcr fdigg Office of Investigations i
SUBJECT:
CATAWBA NUCLEAR STATION:
ALLEGED HARASSMENT AND INTIMIDATION OF QC WELDING INSPECTORS (2-83-038)
Enclosed is a Report of Investigation pertaining to an investigation at Duke Power Company's (DPC) Catawba Nuclear Station, Clover, SC concerning the above subject.
There were several incidents of harassmest and intimidation of QC welding inspectors, however, the,se events were reported to and documented by DPC.
Although DPC management responded to these events, the corrective actions taken were questionable with regards to preventing recurrences and assuring inspection personnel of management support.
Some other inspectors complained of harassment and intimidation in the form of personal embarrassment when they were belittled by supervision in the presence of co-workers and craft.
However, nene of the individuals inter-viewed indicated that this harassnent and intimidation had any influence on their jcb related decisidn making
- process.
Several inspectors also felt they were not supported by management after identifying procedural violations and that construction was fcvorert over QA/QC when procedural disputes arose between craf t anc welding inspectors.
Both inspection personnel and QA management acknowledged. serious communica-tion problems have existed in the past. Many of the welding inspectors felt the problems were with the Project QA Manager and QA Technical Supervisor, who in their opinion, were unresponsive and insensitive to subordinate personnel.
The Project QA Manager and QA Technical Supervisor agreed that communication problems existed, citing a poor interpersonal relationship between management, first line supervisors and the inspectors.
Both the manager and supervisor denied that construction and scheduling influenced their judgments regarding procedural disputes.
Throughout the conduct of the investigation it was apparent that an undercurrent of exasperation existed among the QC welding inspectors as well as other inspection disciplines because of a pay dispute with upper management in 1981.
It was almost universally expressed by interviewees throughout the investigation that the pay issue eventually brought to the
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surface the technical concerns expressed by the welding inspectors.
Many inspectors also believed management did not appreciate the in-depth procedural knowledge and welding experience possessed and needed by the N inspectors for their job functions.
They also resented derogatory remarks PDR
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2 July 11, 1984
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and innuendos made by DPC upper management with regards to what qualifi-cations were needed to be a welding inspector.
ihe technical concerns were addressed during the interviews of the l
inspection personnel only to ensure all of their concerns had been l
expressed, addressed and resolved.
Without exception, those interviewed indicated that they had felt free to express all their concerns to either the DPC Special Task Force, in a deposition to DPC Legal Staff or in their testimony before the Atomic Safety Licensing Board during the hearings.
1 A total of 33 individuals were interviewed during.the conduct of this investigation.
All of those interviewed stated they had no knowledge about any construction deficiencies or were aware of anything that would adversely affect the safe operation of the Catawba Nuclear Station.
In 01's view, although there were several incidents of harassment and intimidation, there was no information developed within the scope of this investigation that would indicate this resulted in any inspector accepting unsatisfactory work.
Furthermore, it was unanimously expressed by all these interviewed that none were aware of defective workmanship that was not reported, documented, reviewed and refolved in some fashion.
No _ additional invesUgative activity is contemplated by this office regarding these allegations.
Neither this memorandum or report may be released outside the NRC without the permission of the Director 01.
Internal NRC access and dissemination may be on a need and right to know basis.
Enclosure:
As Stated cc: V!. J. Dircks, EDO J. Y., Verse, 01:RII
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BROWN & ROOT, INC. v. DONOVAN 1217 poradon. Energy Reorgar.iaation Act of 1974, i 210(1), as amended, 42 U.S.C.A.
BROWN & ROOT, INC., Petitioner, I 5851(a).
7.
Raymond J. DONOVAN Secretary of
- . Labor Reladons **:44 Labor, Respondent.
Filing of nonconformance reports with
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No M'-
his employer by quality co:trolinspector at MCl*ar te ng y wa8 not prom United States Court of Appeals, ed unoer Energy Reorgar.ization Act sec.
l 1. '..-~"._
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tion which prohibiu an==ployer from dia.
charging an employw for commencing, tea.
Dec.10,1984.
tifying in, masiadng in or pardcipating in a proceeding for the administration or en-Employer petidaned for review of an forcement of that Act or the Atornie Ener.
order of the United Suus Department of gy Act; therefore, employer's discharge of bbor, which affir:ned an acministrative quality con:rol inspector for those filings law judge's finding that it disenminated was not a vicladen of that section. Energy against an employee by discharging him Reorgani:ation Act of 1974, i 210(a), as for engaging in condu:t protected by the amended, 42 U.S.C.A. I 5851(a).
Energy Recrpni:stion Act. The Court of Appeals. E. Grady Jelly, Circuit Judge, held that: (1) Act secuen in question does not Pedtion for Review cf an Order of the protect filing of purely internal quality con. United Statea Deprtine:t of Labor.
trol reporu, and (2)"Ging of nonecnfor.
rnance regru by employee with his em-ployer was not protected under that sec-Before GAR 2.A JOLLY and DAVIS, Cir.
uct, and thus his discharge for the Gings cuit Judges.
was not a violation of the Act.
Vacated and remanded.
g, cp.ADY JOLLY, Circuit.Ndge:
The petitioner, Brown & Root, Inc., ap. #
- 1. Labor Retadons *=264 pe11s the order cf the Secteury of Labor Energy Reorgani:stion Act section (Secretary) :.ff trrr.ing an adtr.inistradve law i
prohibiting an employer ficm discharging judge's finding that it discriminated an employee for commenci:g, tesufying in, against an employee by discharging-him assisdng in or participating in a proceeding for engaging in condu:1 protected by sec.
for the administra6on er erJorcement of tion 210(a) of the Energy-Reorgani:.ation the requiremenu of that Act or the Atomic Act (ERA) 42 U.S.C. I 5851(a). Becaux Energy Act does not protect the filing of we find the filing of such a report is.not purely internal quah:y control reporu; protected by the stamte, the Secretary's rather, it is designed to protect "whisde order is vacated and the case is remanded blowers" who provide information to gov-for further consideradon not inconsistent trnmenul entibes, not to the employer cor-with our holding hert.
$,a
. $, hah, ud ser N.meer Cnnast w CoPYMCHT (, ited tp WI3T PUttasHINC CO.
The $panone. $phah pa Key N. sees Chre sawen eun.w.ae as paa el uw epas e of we ews 6
BROWN A. ROOT INC. v. DONOVAN 1:18 removed from the team and the defects L
wm remaPPed, but Erandt stii cenaidend Brown & Root wu the prime contractor the number of defecu excessive. It was l
at the Comanche Peak Staam Dutric Pow-latar discovered that Brsndt had ordered er Station, a nuclear generating facility the wrong sundard med in the mspec6ca.
near Glen Rose, Tezu. In December 1981,.
Charles Atchison became a field quality The third NCR, No. 361, drsfted by At-(control inspector for Brown & Root at the chison in Apr01982, contended that certain
- Comanche Peak sita. It wu the duty of a nspection tasts conducted by inspectors
,- quality control tnspector to tsaue a noncon-emplyed by Tezu Wlin Guerating
- formuee report (NCR) whenever he detect-Company, the owner of the Comanche Peak ed a condition which he considered did not insuliation, were invalid because the in-meet contiset specificauens.' Atchison specurs e ut papedy @'ied. A l
was specifically responsible for inspectmg disft of this NCR was left on a superior's pipe-whip restrsinkinsultaden welda. The ~ desk with a cota that the NCR had not yet l
controversy in this case centers on drie been lasued and that Atchison was agne' N
NCRs issued by Atchison. The first, 'the
.****"*I'*"
- I' 822 level incident," concerned defecu no-the supmq Wd Atchison h he ' intended ticed in March of 1982 by Atdison in welds neemmuding de m6ng of g h 361, which were not his specific respcasibuity and Atdison voiced no objubon. The but which were located near those he was NCR, with Atchison's nota stuched, was ir.specting. After this incident. Atchison's given to Brsadt along with other papers.
imme6ata superior ir. formed him that metu6.ng the supedora pmnouen meom-Erandt, the utumsta superior, thought At.
mendation for Atdison. Brandt and Pur-l chison wu inspeedag beyond the scope o't dy, another. superior, tastified that they l
his job. The area wu later reinspected interpreted the note on the NCR u an i
and the existance of some cf the defecu anempt to gs Imrage or negodata w%
t that At:hison had reported wu ecnfirmed.
regard to tne recommended promotion. On The second incident, "NCR No. 296,"
April 12,1982, Brudt sent Purdy a memo-alu occurred in March 1982, sftar a craft randur, s'at.ng that Atchison's services supervtscr uked Atahison to inspect some were no longer r* quired because he refus.
welds on uninsulted pipe whip restraints es to limit his scope of responsibility."
that the craft superdsor believed to b*
Purdy testified that because he was ur.able defecuve. Four men wers suirned to map to place Atchison in another job, he fired the defects in the pipe whip restraints, him.
Ersndt was not saasfied wh the taarn's Atchison made a timely complamt that he first report, feeling that it showed sa im-was discharged for activity protected under possioie number of defects. Atchison wu tion to (I) aisach a ' hem
- iar to preveet further h, 1. An NCR is s *rownne iniemal repers' by work (2) obtain sa NCR number frorn the NCF w+uch a festd gwahiy control in.ipector notas a coordinatort (3) anier the NCR number of the
' *..
- condmon that esikr appsArs noi to conform to hold. tac (4) drah an NCR dancnbing the condi.
appl,uble connrucion specfications or to leon and mapping its locauore arid (!) submit wnich specihcanons the fact of degree of con-this drah NCR for approval to the quahry coe.
formance is indeterminani. De procedarea re-quire the inspector who observes such a conde.
trol swpervisor.
l s
12:e BROWN & ROOT. INC. v. DON 3 VAN section $851(a).8 The Department of lAber intracorporata quality co: trol report. We investigated and agreed.8 The adminis=s-hold that the filing of such a nport is not tive law judge found that Atchison had lied protected by the sututa. This decision is on his job applicadon. falailled documents. predicatad on three considerst. ions: first, was a totally unreliable wit. ness and that the statutory language cannot be stntched nothing he said could be believed without to encompass such a filing. Second. the
. independent corroborsuon. She held with legislauve history of the Energy Reorgsni-Atchison however, that f0ing an NCR was
- .ation Act (ERA) dou not support such as a protected acdvity. that Atchison was extension of the mear.ing of section 5851.
a fired for filing the NCRs in " good faith."
Third, the structure cf the ERA indicatas and that the rsssons given by Brown &
chat section SS51(a) is designed solely to for the discharge were pretarta.'
protect from retaliation corpcrate " whistle Root The administra6ve law judge recommended blowers who inform responsible efficials reinstatement. back pay, and anerney's og,,7p,.ata f anings.
fees. The Secretary of !.4bor affirmed the
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administrsdve law judge's decision with III.
the e.xcepdon of the reinstatament which was denied because Atchison had falsified
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his educadenal qualificadens for this crit.
The language of section 5851 cannot be ical job on several oc:asions.
construed to protect the filing of purely internal quality control reperta. The rele-
- "t MI' EO' * *E '7*# O' I
(1,:) The dispute in this case concerns r.auon age. inst as e=ployee who has:
whether under 42 U.S.C. I SS$1(aX3) an (1) cerntneaced... a procewiing under
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employer is barred from discriminating th:s chaptar or the Atcrnic Energy Act of' against any employee for the fihng of an (2) assamed or panicipated oc is aboe. to
- 2. Se:non $85Ha) prowdes:
Assist or paructpass in any enanaer in m4ch No employer, including a Commission le.
a procauding of in ariy other manner in cannes, an applicant for a Commissaca li.
r.ch a proceede4 or in any other acuen to cenas, or a corttractor or a wbcontractor of a carry oui the purposen c.f this chapaar of the C.ommisaaon liceruee or applecant, may ds>
Atomic Erwrgy Act of 104, as amended (42 charge any employee or ciberwtse dAacrimi-U.S.C. 2ctl et seq.).
r.aie against any ernpicyes wuh respect to his to 29 C.F.R. H 24.1-24.9 and 42 compensaieort, iern t conditions. or privileges 1.
Pursuant af employment Secause the employee (or any UAC.1 St51(b).
person actir.g pursuant to a requese cf the the ahtan law At sanns Jwigt. cownasj for Atchison tapressly sr.ated that ommenced. cawaad to be commencad, or 6s abown to comrntnce or cause to be Aicaison was not aQ.ng that b W kn fared commenced a proceedita under thsa chap.
for filing NCAA bua rather for thtcmaaning to go ist of the Atornas Enttgy Act of 199. as to the Nucitar Keralato'y Coeusa.en. No evt.
amended [42 U1C. 2014 et neg.l. or a pro, dance addaced at tru! would suppnet an tr/sr. {
coedarsg for the adensnistration or enforce, enca that any of the rnartageertem personnel ment of aay requirtment imposed under involved in Atchison's estv.ar.auen were awart
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this chapter or the Aloeuc Energy Act 4,f of wth thrsats. The AL.f. however, based her 19H, as amended; decnaion on her litufing that Brown and Root (2) sesaified or is about to teattfy la arry terminated Atchison for filing NCRa.
f such proceedarts or, i
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1:20 BROWN & ROOT. INC. v. DONOVAN 1954 [together referred to below as 'The eral term sher a list of specf5cs to mean Acts")... or... for the administrstion something wholely unrestrained by the spe-or enforcement of the requiremenu of cifics. Although this is merely a common-
... (the Acts).
unse rule for intarpreting a ununce, io (2) tastified... in any such proceeding ""** *' * '$*e# #I # "'
the rule as jusdem generis.,, 7.A C.
(3) auisted or pardelpated... in any Sands, Suthertend Statutory Construe.
manner in such a proceeding or in any tion i 47.17 at 103 44 (34 Ed.1973) (15C3 other action to estry out the pu. poses of Supp.).
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... [the Acu).
The Secntary has urged the word "ac.
42 U S.C. I 5851(a).
tions.. be ocastrued as any conduct or act.
The Secretuy does not contand that the but such a meaning seems unID6ely. Fust, filing of an internal quality report could be the Secretary's construedon runs assinst either a " proceeding under" the Acts or a the commen-sense rule discussed above.
" proceeding for the administradon or en-Moreover, the statute protecta puticipation forcement of" the Acts; " proceeding" con-
"in any other action," which implies an N
cededly refers to a formal legal or adminis. " action"is a kind of structured proceeding tr.tive proceeding as the term is used in in which a person may participate, not just seedon 5851. Thus, the act of filing must any act a person may perform. The Secre-be prticinden "in any other sedon to tary argues that the proceedings expressly carry out the purposes of" the Acts if it is listed er.haust the class of all things air..!!ar pretacted cor. duct. Putting aside for the to the e proceedings and therefore main-moment the broader quesucas of purposes tains that **a tions" must be given a mearr and policies behind section 5851, we ing beyond this claas of similarity. We do first exarnine what meaning an ordinary not spee that the listad specifics exhaust reader would give to the language c'f sec. the el
. For example, although we do tion SE51. T)t should oe generally as*
not dec e a matter not before us, it ap-sumed that Congress expresses iu pur. pears that a congressional investigatory poses through the ordmary meaning of the proceeding or other official investigations worcs it uses..
Escondido Mutuct ue quiu liWy "setiom" buring sufficient Wcter v. Lc Jollo. - U.S.
.104 S.Ct.
, m;ggy g..prmedinp ader" the Acu 2105. 2110. b0 led.2d 753 (h&41 Absent
,,.. proceedings for the administradon or a clearly expressed legislauve intention to g
,,d & M'a2w m p the contrary, sutatory language must ord" n rer se SSE narily be regarded u controlhng. /d.
Second, the Secteury's interpretadon would render much of the language of s'ee.
Because the general term "in any other asuon" follows a reference to specific types con $151 redundant. If the word "acdons" of proceedings, it is most reasonable to has his suggested meaning, then the maarr presume that the term "acdons" refers to ing of the entire section could just as easily something similar to the specific proceed. have been expressed Mthout mention of ings menuoned earlier in the sentence, any "proend!ngs" at all. Such a construc-Only excepdonally does a wnter use a gen-uon seems strained. #sther v. Board of l
t.
1::l 1 BROWN & ROOT. INC. v. DONOVAN M!ie Instructi 548 P.2d S$9 n. 38 (5th None of these factors support the Secre.
tary in the present case.
l Cir.1977).
l Tnird, a statuta should be interpreted in Ftrst, the Secroury of Labor does not its endrety. See Sutherland at 37. The appear to have great expertise in ma: tars of nuclear safety. See ford Motor Cesdit language ef the remainder of the ERA t Nithollin. 444 U.S. 555,100 S.Ct. 7M, does not suppo-t the Secretary. The word 797,63 led.2d 22 (1980). Avoyellas at.911.
"acdon" is not used elsewhere in the ERA to mean general conduct. Seedon 5871(e) While section 5851 conearns employee pro-l "no suit acuon or other proceed, taction to some extant and the Secretary is l
.begins:
charged generally with matters concernag
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.ing...." (emphasts added), implying as j
"acdon" is a kind of proceeding. Section the employee employer relationship, we 5851(e), enuded " Commencement of Ac. cannot ignore the fact that secdon 5851 in tion." authodzes & Secretary to file a phmarily designed to serve h major pur-
" civil action" and statas:
- In actions poses of the ERA. In this case, nuclear brcught under this subsection...." We safety. Nuclear energy involves questions usutlly presurne words are used consistant-of great scientific and engineering sophisti-ly through a s:stute. /d. In summary, it cation we!! beyond that requi.ed in ordi-seems highly unlikely that sa ordinary nsry industrial reladona. The Department wriur of Enghsh would have used the of Energy (in particular, the Nuclear Regu-werds of secdon 5E51 to mesn what the latory Commission) has specal competenee I
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Secteury says they mean. It is much in this area. not the Department of Labor.
more likely that "acdon" is used to mean Second. the length of time in which the scmething su-i.ar to formal proceedings 3,y,.
W 4 W m h'a b* q. h under the Acts or for the administradon or of h sutuu is not pt. Undu h er.forcernent of the requirements of the yella the Secretary's cpinior especia!!y if A'"'
left undisturbed by Congreat. is to be tak-en sa evidence cf congrusional maar.ing, but "[t]here is no ressen to er;,ect adminis-B.
tradve steney membus e da%sy a special The Secretarv etsims that his interpnu.
fidthty te the criginal mtant cf the legisla-l l
uen cf secuen 5551 is endued te substaa. uot ratan than the emnt pb,cies of de dal deference as the interproudon given a Ad*inistration and the Congress.... If statute by tne agency charged with fu de. te prett. tion has persisted through in administradon.
Avoyellas Sportsmen's
" r*I
'h'"I'" *I A d*I""U'n' O
44 ;u e t. # cr:A 715 T.2d E97 (5th Cir.
D* ' diII"' "'It " ?**"*S'88*
"'Y 190) (collecung citas). However Avo.
utoy /ntenntati n. 50 M:1Rev. W,-
1 pelles cited three factors which influence
$11 (19M), Quarles v. St. Clair, ill }.2d I
the degrw of defennee to be accorded an 6H, W (58 Cir.19M). Smn me amed I
" agency's interpretauor.: first, the deg7w ments under which the Seentary claims I
of agency arpertise necessary to reach the
""O*'i'I '"I d' " IIII' *I8 I"'
I intarpretation; second, consistency in not weigh heavily in his (sver.
j length of adherence to the inurproudon; Tnird, as we have pointed out above, the and third, the explicitness of the congres.
sional grant of authority to the agency. Isngaage of secdon !A51 does not appear.
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.c 12:2 BROWN & ROOT, INC. v. DONOVAN explicitly or implicidy, to protect the filing Act.rJ" S. Rep. No. 848, 95th Cong., 2d of interr.al reporu; quite the reverse is Sen. 29 (1978), U.S. Code Cong. & Admin.
--- true. The Secretary's reliance on Ato-News 1978, p. 7303 (emphaais added).
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yellas is unwarra.sted; we will not aPPY the rule of that case in disregard of the In rebutal the Secretary draws atsmo- '
policies on which the rule is grounded.
tion to the satament of a sponsor of the
"(A)n agency's inurpretaden cannot b*
5,gislation..'lat me point out that the pro.
ausuined if... it con.flicts with the clear tecdon afforded is inunded to_ apply, even
- c. -language and legislanve history of the sut-if no formal proceedag is actully instient _ -
-. - uta." Escondido at 2114, n. =-
ed as a result of the employee's maistance or participation." Statement of Sen. Gary l
Hart,124 Cong. Rec. 29771 (1978).
IV.
However, the statements of ladividual g
legislators, even sponsors, an rnuch less The legislative history of secdon 5851 conclusive on the issue of congressional strcngly supperu interpreutmg to *** intent than are official committee reports, tion" a.s similar to formal proceedings un-ud, in addition. Senator Hart's statement der er to administer or enforce the require-is not inecasistant with our reading of the ments of the Acu. The Ccnference Com-sutute. We read seedon $851 as requiring 1
mittee report described the purposes of the u action" to be sinuhr to the proceedings secuen as fo!)ows:
expressly described in that secdon. We do not now consider what degree offomalify 7ne Senate Bill amended the Energy an acdon" rnust have under that section, Reorgui:aben Act of 1974 to provide and this appears to be the only matsar prttacdon to employees cf Commasion addressed by the Senator's sutament.
I heensees. applicants contractors, or sub-coetractors from discharges or disertmi-B.
naden for ukir.g part or usat.ing in At and secdon 5851 m ecm nistrctive or lepel proceedings of the /Nuclecr Regulatory) Commarion.
,,g,n,,g t3, g,,,,,,3 g,g,7 g,3,g;,,,
4 he House amendment conumed no simr Act and the Federaj Mine Sa.fety Act are g,
g3 g,,,,
lu provuion, ud the conferees agreed to g ;,, g,,, g g,g3, gg,,g th' S* **** &#* **"*
that secdon 5&51 is substutally identkal H.R.P.ep. No. 1796, 95th Cong., 2d Seu. to provisions of the Clean Air Act and' 16-17 (1978). U.S. Code Coog. & Adtnin-Federal Water Polluuon Control Act, News,1978, pp.1303.1309 (emphasis add-ed).
which, the Secretary argves, were pat-
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terned on provisions of the Mine Safety Act The T.eport of the Senate Committne on IMSA)- 5 R*P No 648. 95:h. Cong.. Ed 1
Invtronment and Public Workers is to sim;. Sen. 29 (1978). However, the MSA, which lu effect: "This secdon offers proteedon was amended only one year before the to ernployees who believe they have been ERA, conuins language a=prassly protect.
- fired or 6scriminated agairat u a result of ing employees filing intarnsJ complaints:
the fact that they have testafed, rite No person shall discharge or in any way cddence, or brought ruit under... (the dtscrimir.sts against.., a*ny uniner...
BROWN & ROOT, INC v. DONOVAN 1::::3 because such miner... hu filed or made any effect on the govemment's ability to a complaint under or relating to this chain information will be at most indirect.
chaptar, including a coreplaint notifying ly impaired if the filing cf purely intarnal the operator of the operator's agent,...
reports, not directed to the competant
'of an a!;eged drager or safety or health violaden in a... mine....
agency, is left unprotected. There may be acme such remote effect, s.nd this might by 30 U.S.C. I S15(cXI), amended by Pub.L some be counted a cost of our decision, but 95.-164. Tide Il i 201, Nov. 9,1977, 91 an extansion of regulation would itu!f
- sat,1303.
bring a burden of inersued interfennce
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The ERA has no such arpress language. with internal procedures, not intended by By the absence of this language it may be Congrena.
u convincingly argued that in drafting the ERA Congmas intended to deny protection
'Ihe Secretary's argument that there would be benefiu from increased regula.
to the filer of an intarnal nport. Compari-tion uri er section 5551 is not so clear u to d
sons with the MSA do not seem to be helpful in this case.
persuade us against the weight of the ERA's langure that the words of Con.
The Secreta.y also relies on a casa decid.
ed under the National Labor Relations Act gross mean what the Seentary says they In the present case, for exarnple, rotan.
(NLRA), NLRB r. Serivence,'405 U.S.117, the administradve law judge found that the S2 S.Ct. 792, 31 led.2d 79 (1972). How. employee falsified his quahficadens in his ever, Senwner, in which an employee gave job applicat. ion and other records; the wntien, swom statements to an NLRB field exammer, is not particularly helpful in judge decided that tastimacy provided by the employee wu so untr.:s: worthy that h the present cue, which involves the filing could only be considered if it were subs:.an-of a purely intamal report. ft. s t, the tiated by evidence over whi:h the employee NLRA expreuly prohibits discruninaden had no contrcl. Severtheless, the judge against employees who have "given testk found the employee had !":ed his quality many under this Act." It does no violence to the language of the NLo.A to intercret control npo:.a in " good is.!:h." 'I'ais exam-sirr,ed, swo.. statemenu u ".estimony."
pie inscates that interference eth empley.
Second, the Secteury stnnuously argua eeemployer relatior. ships would be quita subsuntialif the Seentary's interpreudon that the Senvener decision is especially were adopted.
spplicable to this cae because Scrivener wu predicated to some extent on the poui.
bibry that failure to protect employee con.
y*
A tacts with NLRB stents sught " dry up" A.
the NLRB sources of infor nation and thus undermine the regulatory structure Con-g,,
g g g3g
, g,gg grus had put in place. In Senvener, how. se tion $251 is designed to protect "whinde ever, the government, ability to obtain g
who provide informadeo to gov.
necessary information would have been dk Perau?ntal enuu.as, not to the employer car.
rectly impaired if the Board's own agents on.
could not have contacted an employee with.
Subchspier !! of the EPA sets up the out the employee fearing retahation; here, structure by which Congreu intended the 4
m.
1 1224 BROWN & ROOT, INC. v. DONOVAN safety of nuclear installadons to be as-quences would seem to extend far beyond sured. De subchaptar creatas the NRC the purpose and structun of the ERA. If, and iu vs.rious constituent monitanng, r,-
as the Secnury maintains, ab conduct of a search and enforcement agencies. ERA. quality control inspector believing he is -
c 42 U.S.C. H 5841-45, 5847-60. Le offi. helping to ensun the safety of a nucW eers of these agencies an charged with the plant is protected by secdon 5851, then the
.investigadon of nuclear facilidea. Corre-sanu would appear to be true of a!) engi-
.spondingly, nuclear corporsnora and corpo-neers and architects who work on the de.
rate officers are charged with ensuring sign of the plant. De Seentary's runding g
that safety violations are reportad and that of the statute would appent to prohfnit the L
replations an enforced under section d.iscipline or discharge of such people for 5846. Officers failing to repen violations any daagreement with their employers on are subject to civil penalties. nus. the any tr.atters which involve plant safety.
basic structure of the ERA is not designed Idoreover, the same wocid appear to be to modify the employee employer relation-true for eve-/ cmployes. Since a wide ship, but ratLtr to rely on corporate offi-range of decisions in a nuclear company cen to manage the corperadon in compli-ell have some bear.ng on plaat safety, the ance with their obligations to ensure public Secretary asks us to ado;t an interpreta.
~
safety-den that would radically rsstructure the The role of secben 5851 in thu leg.slaove employeeemployer re!r.tiorahip in all nucle-framework is clear. to protect the internty ai corporations on the basis of a general of the replatory structure and to r.;ard " catch all provaion atr. ached to the end of spinst the possibility that corporata offi. a stat ta. If the sututory languages were een will not provide the necessary informa. not er.ough to persuade us that the Secre-tier., section 5551 protects employees who tary's interpreution is inecerect. these lim-provide compet4nt government officials itleas consequences would certainly give us with direct infor:.ation. R us, seedon pause.
l
$151 protects corporata "whatle blowers."
If a corporate officer fails to set on an B.
in:cmet report endt.al of safery condi-tions, he is liable under section 5646.
De fact that Congress has laid down, or While an individual employee dise:;lir,ed caused to be laid down, more refined and for the filir.g of an intarr.al report is not express repladons concerning the nucigar C
enutled to redress under secdou 5848, any industry than any other Industry in the officer responsible for the daciphr,e must cadon, cauuons us against extending this bear in mind that he will be subW to regulatory scheme by implying protection sanedon. Dus, the overall pie of the of int 4rnal filings where none emasta es.
ERA is to maintain publit safety r.ot r" pressly, ne fact that Congress hae pro-structure the employe+<mployer reladon* duced so many deuiled provisions govern-ship.
ing the nuclear industry indicatas the legis-In this regard we are troubled by the lature may well have attempted to sp-Secteury's inability to confine in a pnnek proach the line where it believed the added pied way the logical coraequer.cas of his costs of reguladon exceed benefits. Edgar proposed interpretadon:
these corae-
- v. #1TE, 457 U.S. (24,102 S.Ct. 2629, 73 i
C
....m
7 G.
e.
1225 BROWN & ROOT. INC. v. DONOVAN VIL l
LT.4.2d 269 (1982) (balding that additional f
^
protecdon affarded investors by state sec*
We are, of courna, rsinctul that our hold-ti:ies sa:atas wo.Cc " overprotect" inves-gg m dis use crutu a glit in W cit.
ters to their de::rimenth see F.utarbrook, cults. The Ninth CL-cuit has previously f
Statutes' Dsmoin. 50 U. Chi.LRev. 533, held du me filing cf intW qualin em I
542 (1983). If this is so, for a court to trol repons is protected by section 5851.
interpret tne statute to authorize "mcre in Mceko s ak t hiversity'735 F.2d H59
~
the same vein" will result in regulation (9th Cir.194 Wh 's Wg on where cosu exceed benefits, upsetting the this issue is predicatd PMy on whu~
balance intended by Congress. /d. We the Ninth Circuit perceived as similarities bel. eve that respect for the detailed ex-between the provisions of the Mine Safety press reguLtery structure set up by Con-Act and secdon 5851. As we have pointed gress cour.sels us to tAke a cavnous ap out above, the MSA contains language u.
l pronh tr. mterpreung the general phrase pressly protecting in:arnal filings. Accord-
"2"? 'th" 'edon w ca-ry out ce purposes ingly, the MSA, in our view, provides no or* the Acu. This tauden is an additionalsupport for XhM's intarpretation of reuer for it'.erpredhg the general terrt suden 5851.
"actiun" u denodrg Scmething close?y sirm Notkowick al.no f5ds a rationale for ex.
ilar to the "procoadings" espressly men.
tanding protection to interns.1 filings be-uor.ed m secdot,!!.51.
"In a real sense, every action by cause:
quality control inspectors occurs 'in an NRC proceeding,' because of their duty to VL en orce NRC nrMons." peqWek at i
%e wecid.ngly bold that ernployee con-dutt which does not tric)ve lhe errpicytt's
'I' " *h " O*" *EE**#' ?
"' "EE*"
cepn cf pvernment a not pic*ect.ed up-
* *** 'I O'qap, W.a S e W or unart or mvcivament with a esmpietant for n *% lan
- ~'
der secuan (251. We do not purpon to of equal concern to us is the fact that define wi.st consutt.as protected conduct thers l$ no principled way to contain this unoer sertvfi f46); st.;h a dettr:*anaden is r41crale. The c!!its.s of a nuclear corpo.
ur.r+cessary 14 the reschdon of (M.: cast.
ridon and the cerporaden itself are re, We do not uy that an ereployee stuas a guired by 14w to erforce NRC ngulations:
2 t! Aim usider secdon !451.if he incely alleg. Das would imply, uncer the Nir.th Circuit u employer d.acrimiraton on the huis of reasoning, that "D*)n a real serae, every employee cocta't or involvement Wh a aedor) by, " nucisar corpornisons " occurs corr.petant organ of governe;>ent; howeves,
'ir, an NRC prt,ceedingl because of their absent such centact er invokemer.t. the esty to enforce NRC regulations," so that empkyee does nct make out a c!.irn under 4H employes in'4ractions eth the corpors.
tAis secuen. We do r.ct attempt to uy tien would be protected u panicipadon in what protected conduct under section 5&$1 an NRC procee6ng his obviously is not it; we it.dicata snly what l$ u nct Since the r3eaning r.f section 58$1 sad neither the the filings in this cue were purely irternal, Secretary nor the Nmth Circuit has sug-we hold they were r.ot witt.in the scope of geste 6 any satistsetery way in which this secdon ?t51 I
9' 9
- l,'
BROWN & ROOT, INC. v. DONOVAN 1226 ntionale might be contained. #ackounak and there is eeruinly no discuasion of the suggests that it only forbids the discharge issue in that csae. We believe that had the
.. cf quality control inspectcri "because they mattar been arrued, the outcome of that
~
~
do their job too well." Id. The restriction case might well have been different.
._ - u of the holding to quality control inspectors appears to be unsupported by the language yggg.
cr saueture of the statute. *This effort to
.. circumvent the plain mes ing of the sat-In this opinion we have concluded that -
. ute by er.ating ambiguity where none ex.
the Secretary's interpretation cf
- Lion -
.ists is unpersunive." Escondido at 2115 5851 is unsupportad by the language, legie.
u (discuasing the statutory interpretation in lative histcry, structure or purposas of the Escendido Mutual Water v. LcJolla, 692 ERA. We find that Atchison's conduct F.2d 1223 (9th Cir.1983).
was not protected under section 5851 and
- ** #"I I * *** ** *
- 3****'7 N I
The Second Circuit has also applied sec.
sad remtnd the matter for further consid-tien 5S51 te the filing of internal quality s
reperu. Con.solidcted Edison v. Deno. erstion not inconsistant wt:h our holding h*-
ven, 673 T.2d 61 (2d Cir.1982). However, L
neither party challenged this application VACATED and REMANDED.
~
i Adm. Office,11.S. Couru-West Publishing Company, Sunt Psa!. Minn.
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i ATTACHMENT C M Cv,
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163 l
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. deems it necessary to carry out his responsibilities. Not-l withstanding the preceding sentence, each such director shall keep the Executive Director fully and currently
- i..,
- ~ ~ -
s informed concerning the content of all such direct com-munications with the Commission.'
c) The Executive Director shall report to the Com-seu.i mis (sion at semiannual public meetings on the problems, *.7,,
progress, and status of the Commission's equal employ apaa-ment opportunity efforts.88
"(d) The Executive Director shall prepare and forward A i-mi a'"'-
to the Commission an annual report (for the fiscal year 1978 and each succeeding fiscal year on the status of the Commission's programs concerning ) domestic safeguards matters including an assessment of the effectiveness and adequacy of safeguards at facilities and activities licensed by the Commission. 'Ihe Commission shall forward to the Congress a report under this section prior to Febru-n aw ary 1,1979, as a separate document, and prior to Febru. C'"*"
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 Reorganization Act of 1974) follow-ing(the fiscal year to which such report applies.He) There shall b:in the Ccm
.2 u.sgun.
five additional officers appointed by the Commission.
l The positions of such officers shall be considered career 8
positions and be subject to subsection 161 d. of the Atomic Energy Act.
[,
i Q
i "usatsotvto s4rt v issues rLAN
-Sec 210. The Commission shall develop a plan pro-42u.s.cuse.
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 conective measures with respect to such issues. Suci plans shall be submitted to the Congress on or before January 1,1978 g6.a.n.iw and proj;rers reports shall be included in the annual p,.,Tl7 report of the Commission thereafter.82 ar=a*-
"EMrLoVER PaoTECT1oM licensee, an applicant for a Com, including a Commission 42 u.s c usi.
"Sec 210. (a) No emplover 1
mission license or a con-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-pensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee) bused to be commenced, or is
"(l) commenced, about to commence or cause to be commenced a
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proceeding under this Act or the Atomic Energy Act gro,wgu.,uoi is: sm 2,.viitem....
a w6=. anos or.m.
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164 of 1954, as amended, or a proceeding for the adminis-4: use. min tration 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 pro-mg or
"(3), ass;isted or participated or is about to assist or partiapate in any manner in such a proceeding or in any other manner in such a proceeding or m any other action to carry out the purposes of this Act or the Atomic Energy Act of 1954, as amended.
" b) I) Any employee who believes that he has been disc (ha(rged or otherwise discriminated against by,any c+*
r-son in violation of subsection (a) may, within thirty after such violation occurs, file (or have any person on his behalf) a complaint with the Secretary of Labor (hereinafter in this subsection referred to as the Siecre-tary') alleging such discharge or discrimination.,Upon receipt of such a complaint, the Secretary shall notify the person named in the complaint of the f'aling of the com-plaint and the Commission.
"(2)(A) Upon receipt of a complaint filed under para-
- "r_
graph (I), the Secretary shall conduct an investigation of the violation alleged in the complaint. Within thirty days of the receipt of such complaint, the Secretary shall com-plete such mvestigation and shall notify in writing the complainant (and any person acting in his behalf) and the I' ome.
person alleged to have committed such violation of 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 basis of a settlement entered into by the Secretary and the person alleged to have committed such violation, issue an order either providing the relief prescribed by subpara-graph (B) or denying the complaint. An order of the Secretary shall be made on the record after notice and w=w W."L opportunity for public hearir,ig. The Secretary,may not enter into a settlement terminating a proceeding on a compla: Int without the participation and consent of the com inant.
"( ) If, in response to a complaint filed under para-amt.
grap (1), the Secretary determines that a violation of subsection (a) has occurred, the Secreta shall order the person who committed such violation to i) take affirma-tive action to abate the violation, and (i) reinstate the complainant to his former position together with the compensation (f his employmer. pay)d the Secretary may including back
, terms, conditions, and privileges o t, an
[*
order such person to provide compensatory damages to the complainant. If an order is issued under this para-f 1
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 O
i 165 c
I 1
- of the compiaint upon which the order was issued.
- (cMI an orde) issued under subsecuon (b) may obtam reviewAny person adversely aff r
of the order in the United States court of appeals for the l
i circuit in which the violation, with respect to which the order was issued. allegedly occurred. The petition for 1
review must be filed withm sixty days from the issuance l
of the Secretary's order. Review shall conform to chapter 7 of title 5 of the United States Code. The commence-su.sc.mi ment of proceedings under this subparagraph shall not, "M i
unless ordered by the court, operate as a stay of the -
I
+
i Secretary's order.
",(2) An order of the Secretary with respect to which i
review could have been obtained under paragraph 1)
L shall not be subject to judicial review in any cnnunal(or-
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j i
other civil proceeding.
"(d) Whenever a person has failed to comply with an J.=d h
order issued under subsection (b)(2), the Secretary may H
file a civil action in the United States district court for the district in which the violation was found to occur to 1
enforce such order. In actions brought under this subsec-tion, the district courts shall have jurisdiction to grant all appropriate relief including, but not limited to,ingunctive i
rehef, compensatory, and exemplary damages.
" e)(1) Any person on whose behalf an order was t
issu(ed under paragraph (2) of subsection (b) may com-j I
mence a civil action agamst the person to whom such order was issued to require comphance with such order.
4 i
The appropriate United States district court shall have jurisdiction, without regard to the amount in controversy i
or the citizenship of the parties, to enforce such order.
subsec) tion, may a, ward costs of htigation (including reas """(2 The court in i i
t l
onable attorney and expert witness fees) to any party whenever the court determines such award is appropnate.
1 j
"(f) Any nondiscretionary duty im sed by this sec-tion shall be enforceable m a ma mus proceeding brought under section 1361 of title 28 of the United i
States Code.
"( ) Subsection (a) shall not apply with respect to any i-em yee who actmg without direction from his or her em o,yer (or tIie employer's asent), deliberately causes a i
i I
4 i
vio anon of any requirement oT this Act or of the Atomic j
Energy Act of 1954, as amended.13 e u.s.c. mii.
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"TITLEIll-MISCELLANEOUS AND
" TRANSITIONAL PROVISIONS "TRANsmoNA. Provisions
" Sac. 301.
Except as otherwise provided in this Act L.
.r whenever all(a)f the functions or programs of an agency, "'"'""
('
o or other body, or any component thereof, affected by this M #ti.
i Act, have been transferred from that agency, or other j'
body, or any component thereof by this Act, the agency, T
0(f L m it.d M h e
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=
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7 i
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