The Technical Specifications for the plant provide that the average temperature within its containment shall not exceed 120E F. Prior to 1995, PSE&G determined containment temperature by using an "arithmetic method" that averaged the readings of thermocouples placed in ten different locations within the containment. However, in March 1995, PSE&G determined that this practice was inconsistent with the Technical Specifications that required the containment's temperature to be calculated by averaging the readings at only five locations.

   In May 1995, PSE&G shut the plant down for repairs. During this period, PSE&G assigned Makam to identify the five most representative temperature-recording locations for thermocouples within the containment. Ultimately, PSE&G hired MPR Associates of Alexandria, Virginia ("MPR") to assist Makam with this project.

   In 1996, MPR issued a report in which it not only recommended various locations for the five thermocouples, but also suggested that PSE&G use a volume-weighted method of determining containment temperature instead of an arithmetic method. Makam approved the MPR proposal even though he knew that a volume-weighted calculation could result in temperature averages in excess of 120E F during hot summer days, which in turn could result in a shutdown of the plant.

   PSE&G resumed operations at the plant in the summer of 1997. Shortly after startup, the average temperature in the containment rose to almost 116.6E F, a situation that forced PSE&G to take emergency measures to avoid a shutdown of the plant. PSE&G then set out to determine the cause of this unexpectedly high average temperature. Makam's new manager, Joseph Moaba, soon identified the volume-weighted calculation as the problem and blamed Makam for not advising his superiors of the obvious risk of shutdown inherent in using this particular method. Makam was placed on a performance improvement plan (PIP), and was terminated shortly thereafter. PSE&G cited Makam's failure to make sufficient improvement in his performance as the reason for Makam's termination.

    Makam appealed his termination to PSE&G's Employee Relations Review Panel ("ERRP"). When that challenge proved unsuccessful, Makam filed a complaint with the Occupational Safety and Health Administration ("OSHA") alleging that PSE&G improperly terminated him for engaging in protected activity under the ERA. OSHA found no merit to Makam's complaint. Makam objected to that determination, and the matter was referred to an Administrative Law Judge ("ALJ"). After a 13-day evidentiary hearing in this case, the ALJ found that PSE&G did not violate the employee protection provisions of the ERA and, by Recommended Decision and Order ("RD&O") dated February 19, 1999, recommended that Makam's complaint be dismissed. This appeal followed.

I. JURISDICTION

    We have jurisdiction pursuant to 42 U.S.C.A. §5851 and 29 C.F.R. §24.8 (2000).

II. STANDARD OF REVIEW

    Under the Administrative Procedure Act, we have plenary power to review an ALJ's factual and legal conclusions. See 5 U.S.C. §557(b). As a result, the Board is not bound by the conclusions of the ALJ, but retains complete freedom to review factual and legal findings de novo. See Masek v. Cadle Co., ALJ Case No. 95- WPC-1, ARB Case No. 97-069, slip op. at 7 (Apr. 28, 2000).

III. DISCUSSION

   In order to prevail in an ERA whistleblower case, the complainant must prove by a preponderance of the evidence that he engaged in protected activity which was a contributing factor in an unfavorable personnel decision. Only if the complainant meets his burden does the burden then shift to the employer to demonstrate by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of such behavior. See Trimmer v. U.S. Dept. of Labor, 174 F.3d 1098 (10th Cir. 1999); 42 U.S.C.A. §5851 (b)(3)(C) and (b)(3)(D).

Comp. Br. at 25.

    Makam also maintains that the ALJ's ruling is inconsistent with Diaz-Robainas v. Florida Power & Light, Co., Case No. 92-ERA-10, Sec. Dec., (Jan. 19, 1996), a case in which the Secretary determined that the ERA protected an employee even though he only raised safety concerns with his supervisor.

    Makam asserts that, in light of Jarvis and Diaz- Robainas, the ALJ should have considered the following activities protected:

1. Identification of the 5 most representative thermo-couples for conservatively calculating average air temperature in compliance with tech. spec. (P-115);

2. Giving direction, review and comment to MPR's report of October 1996 as well as signing the report to approve MPR's conservative volume-weighted average methodology. (R- 53);

3. Assigning to himself a CRCA commitment to survey the upper containment air temperatures in order to refine MPR's methodology. (R-52 at B-269);

4. Advocating approval of the T-Mod and MPR's methodology through the Containment Building Ventilation system's final Affirmation Report and Approval in November 1996. (P-65);

5. Issuance, along with contractor Phil Lawson, of the upper containment air temperatures. (R-79);

6. Resisting Frank Soens' criticism and attempt to scrap the proposed T-Mod survey, while convincing Acting Supervisor Meinershagen that the survey should go ahead over Soens' objection. (T-1234; See R-73);

7. Briefing new Manager, Joe Moaba, about how the containment temperature issue came about and "what the issues are going to be" in light of the July 8, 1997 calculation of 116.6E F above average temperature. (T-1284);

8. Leading a team of engineers to develop the July 9, 1987 calculation and "correction curve" which adhered to MPR's methodology while adjusting the average temperature down by 3E F. (R-57 & P-71);

9. Telling Moaba and Meinershagen on July 10, 1997 that MPR's method was "very conservative" and that it could be refined based on additional data obtained through the T-Mod survey. (T-1310, 1338);

10. Briefing Operations Manager, Chris Bakken, on July 10, 1997, regarding the T-Mod purpose in refining the MPR calculation. (T-2035);

11. Submitting his July 26, 1997 Action Plan to new Supervisor, Dave Dodson, for handling data logger input when retrieved from the upper containment areas. (P-54).

Comp. Br. at 26-28.

    We think the Jarvis and Diaz-Robainas cases are clearly distinguishable from the case before us. In Jarvis, the employee expressed concern that the storage of lithium in a building that housed radioactive material posed an explosion risk with the potential for widespread radioactive contamination. Similarly, in Diaz-Robainas, the employee insisted that the company needed to take certain measures in order to prevent or mitigate the consequences of a nuclear accident. In contrast, in this case -- as the ALJ found -- Makam engaged in no activity which could be considered to be protected under the ERA.

    To constitute protected activity under the ERA, an employee's acts must implicate safety definitively and specifically. American Nuclear Resources v. U.S. Department of Labor, 134 F.3d 1292 (6th Cir. 1998). Makam never expressed to PSE&G officials a concern that the arithmetic method of calculating containment temperature was less "safe" than the volume weighted method that he endorsed. In fact, Makam has not proved that any of his actions were motivated by a belief that PSE&G was violating any nuclear laws or regulations, ignoring safety procedures, or assuming unacceptable risks. As the ALJ found, "it cannot be determined from Complainant's testimony which method he himself advocated, and which method, if any, he believed would constitute a safety concern if implemented." 1998 ERA 22 and 26 @ 7. Thus, we cannot conclude that any of Makam's actions implicated safety definitively and specifically.