On May 10, 1994, during the performance of a scheduled test procedure ordered by management, the A shift operators plotted the MUT's actual tank response and pressure levels when draining the tank and noted that pressure levels were tending towards the unacceptable region in Curve 8. C. at 10. Complainants' coworker, Mark VanSicklen, prepared a Problem Report informing managers about the concern with Curve 8 and included the actual data obtained during the test. C. at 10 and CX 3.

   FPC managers continued to direct CR-3 operators to maintain the maximum hydrogen pressure allowed under Curve 8. C. at 11; CX 4, 5. The A Shift operators continued to raise concerns about Curve 8 with their managers to no effect. C. at 13. VanSicklen raised the issue with the NRC resident inspector, who suggested that if Complainants did not like management's response, they should submit a formal allegation to the NRC. C. at 15.

   On September 2, 1994, Operations Support Manager Carl Bergstrom showed Fields a draft memorandum from Engineering stating that Curve 8 was accurate, "reasonably conservative," and safe, and that the issue would be closed. C. at 15 and CX 9. A handwritten notation on the memorandum indicated that it was a "draft recommendation" and that Fields should review it and provide comments to his immediate supervisor, Halnon. CX 9.

   The A Shift operators discussed an appropriate response to the draft letter closing out the Problem Report on Curve 8. C. at 16. They decided to conduct an operational "evolution," not required by plant conditions, to obtain data that would show whether their concerns about Curve 8 were valid. No one consulted the Engineering Department, FPC managers, or the NRC concerning the plan. Complainants believed that the planned evolution comported with existing procedures and was within their authority to perform. C. at 16-17.

after the water reduction began. Id. The alarm was triggered for 35 to 37 minutes during the September 5 evolution. Compare C. at 23 and R. D. and O. at 4, ¶9.

   At the time of the evolutions, although Complainants suspected that Curve 8 was nonconservative, they did not know that it was a design basis that should never be exceeded. C. at 7, 27. The data from the September 5 evolution showed that the actual system response exceeded the limits of Curve 8 and eventually led to the Engineering Department's acknowledgment that the curve was a design basis curve. C. at 26-28.

   Complainants prepared a Problem Report following the September 5 evolution. C. at 24; CX 14. The Problem Report did not mention the September 4 evolution, C. at 25-26, although Weiss did voluntarily inform a superior, Senior Licensing Engineer Paul Fleming, about it. C. at 26. Fields and Weiss did not include the first evolution in a written chronology of events, C. Ex. 18, or mention it in numerous meetings with FPC managers and attorneys. C. at 40; Fields Dep. at 257. In response to the September 5 incident, FPC took the A Shift operators "off shift," which meant that they no longer operated a reactor. C. at 34. Fields was reassigned to the position of support shift supervisor, an administrative position. C. at 38. Weiss was transferred to another position as well. Id.

   In its report, the NRC-OI report found that:

the shift supervisor, assistant shift supervisor, and two chief operators on the midnight shift of September 4 and 5, 1994, deliberately conducted an evolution, not required by plant conditions, for the specific purpose of gathering data. Furthermore, when the allowable makeup tank over pressure was exceeded, the operators deliberately delayed taking appropriate action to reduce makeup tank over pressure while gathering that data.

RX 64, Synopsis, at 1.

   The standard for granting summary decision in whistleblower cases, 29 C.F.R. §18.40 and 18.41, is the same as for summary judgment under the analogous Fed. R. Civ. P. 56(e): moving parties must show that there is no material issue of fact and that they are entitled to prevail as a matter of law. Freels v. Lockheed Martin Energy Systems, Inc., Case Nos. 94-ERA-6 and 95-CAA-2, Final Dec. and Order, Dec. 4, 1996, slip op. at 5 and cases there cited, appeal dismissed sub nom. Freels v. Secretary of Labor, Nos. 97-3117 & 97-3383 (6th Cir. Dec. 31, 1997). The facts are considered in the light most favorable to the party opposing the motion for summary decision. Webb v. Carolina Power & Light Co., Case No. 93-ERA-42, Sec. Dec. and Rem. Ord., July 17, 1995, slip op. at 5. An opposing party "may not rest upon mere allegations or denials [in the] pleading[s], but must set forth specific facts showing that there is a genuine issue for trial" and "must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-257 (1986).

   To determine if summary decision is warranted, we will examine the showing required of FPC under Section 211(g), beginning with a determination whether Complainants acted without direction from their employer.

   Complainants Acted Without Direction from FPC

   It is undisputed that FPC did not expressly direct Complainants to conduct the evolutions on September 4 and 5, but that does not end the inquiry. Complainants argue that an employee acting under the "implied authority" of the employer has acted with the employer's direction. See Comp. Br. at 26.

ALJ Rec. Dec. and Ord., slip op. at 19.

   Complainants contend that there is a genuine issue of material fact concerning whether they conducted the evolutions under implied authority from FPC management. Comp. Br. at 26. As support for implied authority, Complainants initially cite statements of the NRC in letters declining formal enforcement action against them:

Performance of an unauthorized evolution affecting safety systems is a significant violation. However, after considering the results of the OI investigations, the various written submittals and affidavits you and your attorneys have presented, the information you provided during your predicisional enforcement conference, and Florida Power Corporation's (FPC) investigation results, we have concluded that formal enforcement action against you is not warranted. This decision is based, in part, on the extent of FPC management's responsibility and culpability. You are no doubt aware that the NRC has issued a significant sanction against FPC which included this violation. (Emphasis added).

RX 61 at 1-2 and RX 62 at 1-2. Complainants argue that "[i]f the management has been held responsible for this incident, then Complainants do not fall under the (g) exception, as they acted under the implied direction of their employer." Comp. Br. at 26.

"management acquiescence and approval of similar conduct" which made it reasonable for them to believe that they had the authority to run the evolutions. Comp. Br. at 28.

   The Dotson case is instructive concerning the allegation that management acquiescence constitutes implied authority. In that case, the employer, Anderson, was present in the room at the time that Dotson cheated on the examination. The ALJ reasoned, and we concurred:

Anderson was present in the room when Butch left the answer sheet. Although Complainant testified that he believed that Anderson had paid Butch a bribe to set up the exam and provide the answers, he presented no corroboration of this allegation. Therefore, there is no evidence that Anderson knew what Butch was about to do upon beginning the examination. But even if Anderson did know of Butch's plans, there must still be some additional showing that he exerted some pressure, even indirectly, upon his employees to both remain in the room and participate in the cheating. Complainant has offered no evidence to this effect, even by his own testimony. Thus, the question becomes: was Anderson's mere presence in that room significant enough to amount to "direction" to Complainant to cheat on the exam? While there is undoubtedly some combination of facts which would yield a positive answer to this question, this fact pattern does not. Complainant's willing participation in the reading aloud of the correct answers clearly separates him from being either an innocent bystander or the victim of Anderson's coercion, however slight. While it would be understandable for Complainant to be reluctant to refuse to take the exam under the circumstances which existed on October 31, clearly his willingness to take part in the reading of the answers strongly indicates his free will participation in the cheating. Based upon the foregoing, I find Complainant did not act at the direction of his employer during the test-taking incident of October 31, 1994.

Dotson, ALJ Rec. Dec. and Ord., slip op. at 19.

   In Dotson the employer's physical presence during the complainant's commission of the unlawful act did not constitute implied authority. In this case FPC's prior acquiescence in operating the plant under conditions that triggered the MUT annunciator light likewise did not constitute implied authority. Moreover, FPC did not acquiesce in the precise behavior that caused a violation. Complainants conceded that no one had ever before raised the hydrogen pressure and the water to the maximum levels and rapidly drained the MUT of water, as they did. Fields Dep. at 59; Weiss Dep. at 179. We find no implied authority here on the basis of employer acquiescence in similar conduct.

    Complainants' final argument concerning implied authority is based upon a duty under their operators' licenses to "protect the public and to assist in maintaining the plant at optimum safety levels." Comp. Br. at 28. They state that "[t]he only way

management would further consider their concerns was if they had some hard data to highlight the problem." Id. at 29. The NRC's letters to Complainants, however, explain that Complainants had at least two additional routes to raise their concerns about Curve 8:

We recognize that your operating crew had raised questions concerning the conservatism of operating curve OP-103B, Curve 8 to your management and to an NRC inspector. We are concerned about the responses received from both your management and the NRC. Nevertheless, as a Shift Supervisor, we would have expected you to have raised your concern higher within FPC. You could have raised the issue to either the Regional office or NRC headquarters. Rather than pursue other avenues, you authorized your crew to perform a test that was not described in the Final Safety Analysis Report by using a procedure that had not been designed for data gathering purposes. (Emphasis added).

RX 61 at 2 (Fields and Weiss letters); see also RX 62 at 2 (Stewart letter).

   The record demonstrates unequivocally that Complainants could have brought their concerns about Curve 8 to higher managers within FPC and to the NRC's regional office and headquarters. Given that other avenues were available to pursue Complainants' safety concern, the duty to protect the public did not constitute implied authority to conduct the evolutions.

S. Rep. No. 848, 95th Cong., 2d Sess. 30 (1978), reprinted in 1978 U.S.C.C.A.N. 7303, 7304. We find that the use of the term "willfully contributes to a violation" in the Senate Committee's report indicates that Congress intended the words "deliberately causes" to have an element of willfulness.

   As a remedial statute, the ERA should be liberally interpreted to protect victims of discrimination and to further its underlying purpose of encouraging employees to report perceived nuclear safety violations without fear of retaliation. See generally, English v. General Elec. Co., 496 U.S. 72 (1990). See also, Bechtel Constr. Co. v. Secretary of Labor, 50 F.3d 926, 932 (11th Cir. 1995) ("it is appropriate to give a broad construction to remedial statutes such as nondiscrimination provisions in federal labor laws."). Since the ERA's remedial protection is to be interpreted broadly, any affirmative defenses logically should be interpreted narrowly so as to provide the act's protections to employees who work within the bounds of safety.

   The ALJ's interpretation of Section 211(g) to include any action that is not inadvertent would, however, greatly expand the breadth of this affirmative defense. Such an interpretation could lead to unfortunate results in situations in which an employee acts deliberately

(that is, not inadvertently), but innocently and without knowledge or reckless disregard that his or her action will cause a violation of the ERA or the Atomic Energy Act.

presumably without cheating, in order to be allowed to continue working in the HVAC industry." Id. The discussion in Dotson shows that the complainant acted willfully, with either knowledge or reckless disregard, that his cheating would cause a violation of the Clean Air Act as he continued to work in refrigeration without having lawfully passed the certification exam. Slip op. at 18-19.

   Section 211(g) Does Not Require Specific Intent

   Complainants suggest that decisions of the Secretary construing Section 211(g) require a finding of the complainant's "specific intent" to cause a violation. Comp. Br. at 14. As an example, Complainants point to language in Drew v. Jersey Central Power & Light Co., Case No. 81-ERA-3, ALJ (Rec.) Dec. and Ord., June 16, 1982, slip op. at 19, adopted in Sec. Final Dec. and Ord., Jan. 13, 1984: "There is no substantial evidence that Complainant deliberately caused any violation of the law. Drew did proceed to repair the defective weld valve in November 1978 without benefit of a prior written approval of his welding procedure for that weld, but he believed he was acting properly."

   We do not find a specific intent requirement in Drew, where the ALJ emphasized that the failure to obtain prior written approval was merely a "technical procedural problem" and a "technical violation" of quality assurance rules. Drew, ALJ Dec., slip op. at 18. There was no indication of reckless behavior on Drew's part. At most, Drew stands for the proposition that where a technical and procedural regulatory violation is posited as the basis for a Section 211(g) defense, the complainant's belief that he was not causing a violation is a factor to consider.

   Relying upon the legislative history and statutory purpose of the whistleblower provision and consistent with earlier decisions of the Secretary and this Board, we find that to establish a valid Section 211(g) defense, a respondent must show that a complainant willfully or recklessly caused a violation of the ERA or the Atomic Energy Act, that is, that the complainant acted with knowledge or with reckless disregard of whether his or her act would cause a violation. Having defined the necessary showing for "deliberately causes a violation," we will discuss whether FPC made that showing in this case.

   Complainants Acted With Reckless Disregard, and Therefore
   Deliberately Caused a Violation

   Complainants did not have actual knowledge that maximizing the MUT's hydrogen pressure and draining its water would cause a violation of the ERA or the Atomic Energy Act, as FPC's actions demonstrate. The company presented Curve 8 to the reactor operators as a conservative operating curve and there is no violation if such a curve is exceeded by a small amount. In addition, the annunciator light indicating that MUT hydrogen pressure was too high had been triggered often in the months prior to September 1994. Complainants suspected, but did not actually know, that Curve 8 was nonconservative. Indeed, it was only after the Complainants conducted the unauthorized evolutions that FPC managers learned definitively that Curve 8 was a design curve that should never be exceeded.

   We would be more inclined to find an absence of recklessness if there were no other means to seek correction of Curve 8. As we noted above, however, Complainants could have brought their concerns to higher managers within FPC and to other levels of the NRC, both in the regional office and at the headquarters. An NRC resident inspector even invited Complainants to submit a formal allegation to the NRC concerning Curve 8.

   Complainants contend that their actions "were appropriate, and consistent with the type encouraged by the respondent." Comp. Br. at 8. Nevertheless, they admitted in depositions that the specific evolutions they conducted had not been done in the past. And if they sincerely believed their actions were consistent with procedures that FPC encouraged, they could easily have sought approval for the evolutions from higher management. They did not do so. See R. D. and O. at 16.

   Complainants were well aware of the danger of operating the reactor with hydrogen pressure that was too high for the level of water in the MUT. Both Fields (Dep. p. 54, 78) and Weiss (Dep. p. 65-66) believed that catastrophe could arise if a loss of coolant accident occurred while the MUT's hydrogen pressure was too high.

   While the NRC acknowledged that the Complainants' actions had the salutary effect of proving that Curve 8 was nonconservative, the agency also concluded that the salutary effect did not excuse the Complainants' risk taking:

We further recognize that your operating crew contributed to the determination that the curve for maximum make-up tank pressure was in error and nonconservative and that the plant had been periodically operated outside its design basis. You also provided additional data that assisted in determining the extent to which operators were violating OP-103B, Curve 8, and the environment that existed at FPC. Nevertheless, we emphasize that the ends cannot justify the means. In this case, your actions demonstrated the validity of your concerns; in other instances such might not be the case.

RX 61 at 2 (Fields, Weiss letters); see also RX 62 at 2 (Stewart letter).

   Nuclear power is "one of the most dangerous technologies man has invented." Rose v. Secretary of Labor, 800 F.2d 563, 565 (6th Cir. 1986) (Edwards, concurring). We find that, in light of the inherent danger involved in operating a nuclear plant and the existence of other avenues of redress for their suspicions about Curve 8, Complainants acted with reckless disregard of whether a violation of the ERA or the Atomic Energy Act would occur when they conducted the September 4 and 5 evolutions.

   In light of the Complainants' reckless disregard for whether a violation would occur, the Complainants "deliberately caused a violation" of regulations promulgated under the Atomic Energy Act and the ERA. There is no genuine issue of material fact and FPC has established a valid Subsection 211(g) defense as a matter of law. Accordingly, we accept the ALJ's recommendation and grant summary decision to FPC. The complaints are DISMISSED.

   SO ORDERED.

      DAVID A. O'BRIEN
      Chair

      KARL J. SANDSTROM
      Member