DATE: JAN 25 1985
CASE NO. 84-ERA-27

In the Matter of

HOWARD SAMUEL NUNN, JR.
    Complainant

    v.

DUKE POWER COMPANY
    Respondent

Steven M. Kohn, Esquire
    For the Complainant

Richard K. Walker, Esquire
    For the Respondent

Before: Eric Feirtag
    Administrative Law Judge

    On October 6, 1984, I issued a notice of hearing for this matter, which arises under the Energy Reorganization Act of 1974, as amended (42 U.S.C. 5851 et seq.), hereinafter called the ERA. Respondent filed a motion for Summary Decision on December 20, 1984. Complainant filed a memorandm in Opposition to respondent's motion on January 11, 1985.

    The applicable regulations state that a summary decision is appropriate where "the pleadings, affadavits, material obtained by discovery or otherwise, or matters officially noticed show that there is no genuine issue as to any material fact." 29 C.F.R. 18.40(d). There being no real dispute with respect to the facts pertaining to the issue presented by Respondent's motion, I find that a summary decision is appropriate here. The issue presented for decision, as the parties have framed it, is whether purely internal complaints to corporation management constitute "protected activity" under the provisions of section 5851.

    Complainant worked as a welder for Respondent from September 18, 1978 until October 19, 1983. During the period of his employment, Complainant reported numerous "safety related or potential safety related" problem to supervisory personnel at Respondent's Catawba Nuclear Power Station. On October 3, 1983 Complainant contacted the Palmetto Alliance to inform that organization of his "most significant health, safety, and Quality Control concerns" regarding the Catawba facility. Complainant also discussed these concerns with the Government Accountability Project (GAP) on that day; Complainant informed GAP that he desired its assistance in relating his claims to the "proper authorities." Shortly thereafter, Complainant obtained from an engineer at the Catawba facility a copy of "10 C.F.R.," which contains the regulations governing the activities of the Department of Energy. Complainant also told fellow employees that he had obtained this information, that he had spoken with GAP, and that he soon planned to state his concerns to the Nuclear Regulatory Commission (NRC).

    On October 14, 1983 Respondent notified complainant that the had removed from service" due to violation of Respondent's attendance policy. Respondent stated that, due to an absence the previous day, Complainant had accumulated his eighteenth "occurrence" within a one year period. On the day that the received notification of his removal from service, Complainant informed Respondent that he planned to discuss with the NRC his concerns about safety violations at the Catawba facility. Complainant discussed these concerns with an inspector from the NRC on that same day. Complainant admits that he contacted the NRC only after Respondent informed him that he had violated the attendance policy. Pursuant to standard company procedure, Respondent conducted an investigation concerning Complainant's removal from service. Respondent officially terminated Complainant's employment on October 19, 1983.

    42 U.S.C. 5851(a) sets out in clear terms the scope of its protection:

    No employer, including a Commission licensee, an applicant for a Commission license, or a contractor or a sub-contractor of a Commission licensee or applicant, may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee) -

(1) commenced, caused to be commenced, or is about to commence, or cause to be commenced a proceeding under this chapter or the Atomic Energy Act of 1954, as amended, or a proceeding for the administration, or enforcement of any requirement imposed under this chapter or the Atomic Energy Act of 1954, as amended;

(2) testified or is about testify in any such proceeding or;

(3) assisted or participated or is about 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 carry out the purposes of this chapter or the Atomic Energy Act of 1954, as amended.

The United States Court of Appeals for the Sixth Circuit has concluded from this language that a valid discrimination claim under section 5851 must include proof that the complaining employee was discharged or otherwise discriminated against and "that the alleged discrimination arose because the employee participated in an NRC proceeding under either the Energy Reorganization Act of 1974 or the Atomic Energy Act of 1954." DeFord v. Secretary of Labor, 700 F.2d 281, 286 (6th Cir. 1983). The court did not comment further with respect to this requirement, however, because the employer conceded that the complainant had participated in an NRC investigation prior to the alleged discriminatory treatment.

    Only two circuit courts have expressly decided whether statements made to corporate management constitute "protected activity" under section 5851.¹ In Mackowiak v. University Nuclear Systems, 735 F.2d 1159, 1163 (9th Cir. 1978-4), the United States Court of Appeals for the Ninth Circuit held that section 5851 "protects quality control inspectors from retaliation based on internal safety and quality control complaints." The court based its holding

    The undisputed facts, taken in a light most favorable to the Complainant, demonstrate that he suffered no retaliation or discrimination at the hands of Respondent due to his contact with the NRC. Complainant admits that he did not discuss with the NRC his concerns about the safety of the Catawba facility until October 14, 1983, after Respondent informed him that he had been removed from service due to excessive absenteeism. While Complainant had discussed his concerns previously with his superiors, fellow employees, the Palmetto Alliance, and GAP, it is clear that none of these discussions represents contact or involvement with a "competent organ of government." Respondent's decision to remove Complainant from service on October 14, 1983 cannot be construed as retaliation against Complainant due to his "participation in an NRC proceeding" since Complainant, by his own, admission, had made no attempt to contact the NRC prior to that decision.²

    I also find unpersuasive Complainant's contention that he engaged in protected activity, even under the Brown & Root standard, simply because Respondent did not finally terminate is employment until five days after his meeting with the NRC investigator. It is not disputed that Complainant was removed from service on October 14, 1984 pending an investigation of each occurrence by management personnel at respondent's Catawba plant. It is equally clear from the substantial document already produced by the parties, however, that Respondent's decision to terminate Complainant occurred, for all

¹ While the Second Circuit found in a case involving purely internal safety complaints that complainant made out a prima facie case under section 5851, it is clear that the court did not expressly decide the "protected activity" issue. Consolidated Edison Co. v. Donovan, 673 F.2d 61 (2d Cir. 1982). The Fourth Circuit has not considered a case arising under section 5851.

² I think it important to emphasize that even under the holding adopted in Mackowiak, complainant engaged in no protected activity prior to October 14, 1983. Complaint worked as a welder during his entire tenure at the Catawba facility. As I have discussed previously, the court based its decision in Mackowiak largely upon the rationale that quality control inspectors play particularly critical roles in the NRC's regulatory scheme, acting as "independent observers of the construction process," and possessing a special duty to enforce NRC regulations. Welders do not play such an important role in the regulatory process; certainly in no sense does "every activity" of a welder occur "in an NRC proceeding." Welders, like other employees not engaged in quality control inspection, must take more formal action, even under Mackowiak, to invoke the protection of section 5851.