U.S. Department of Labor
Office of Administrative Law Judges
1111 20th Street, N.W.
Washington, D.C. 20036
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
RECOMMENDED DECISION AND ORDER ON MOTION FOR SUMMARY JUDGEMENT
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.
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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.
FACTUAL BACKGROUND
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.
PROTECTED ACTIVITY
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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.
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.