DATE: February 16, 1995
CASE NOS. 89-ERA-7
89-ERA-17
IN THE MATTER OF
THOMAS J. SAPORITO
COMPLAINANT,
v.
FLORIDA POWER & LIGHT COMPANY
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
ORDER
I issued a decision in this case on June 3, 1994. (June 3
decision). Respondent moved on July 21, 1994 for reconsideration
of that decision (Respondent's Motion). On August 25, 1994, Ivan
Selin, Chairman of the Nuclear Regulatory Commission (NRC), wrote
to me (Selin letter) expressing his concern regarding the effect
of the June 3 decision. For the purposes of deciding this motion
for reconsideration I have treated the Selin letter as an amicus
brief. The Wage Hour Administrator filed a memorandum of law on
November 14, 1994 (Administrator's Memorandum) in support of the
June 3 decision. The Nuclear Energy Institute (NEI) moved for
leave to file a brief amicus curiae with a copy of its
brief on Nov. 18, 1994 and its motion is GRANTED. Finally,
Respondent
requested leave to file a reply to the Administrator's Memorandum
with a copy of its reply and that request is GRANTED.
It is doubtful, at this stage of the case, whether I have
the authority to reconsider the June 3 decision. That order
remanded this case to the Administrative Law Judge (ALJ) and the
case is now pending in the Office of Administrative Law Judges,
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not before me. In addition, reconsideration is disfavored,
INS v. Doherty, 112 S. Ct. 719, 724 (1992), and should be
granted only to "correct manifest errors of law or fact or to
present newly discovered evidence." Harsco Corp. v.
Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). For the reasons
set forth below the motion for reconsideration is denied.
DISCUSSION
The June 3 decision stated that "[a]n employee who refuses
to reveal his safety concerns to management and asserts his right
to bypass the 'chain of command' to speak directly with the
Nuclear Regulatory Commission is protected under [the ERA]."
Decision and Remand Order (D. & R. O.) at 1. It also held that
"[c]overed employers who discipline or discharge an employee for
such [protected] conduct have violated the ERA," D. & R. O. at 1,
and that "FP&L violated the ERA when it discharged Saporito for
refusing to obey [management's] order to reveal his safety
concerns." D. & R. O. at 6.
In its motion for reconsideration Respondent characterized
the holding of the June 3 decision as providing an employee with
an "absolute right" to refuse to report safety concerns to the
plant operator, if he plans to inform the U.S. Nuclear Regulatory
Commission of the safety concerns. This is not an accurate
interpretation of the holding of the June 3 decision. The right
of an employee to protection for "bring[ing] information directly
to the NRC," and his duty to inform management of safety
concerns, Selin letter at 2, are independent and do not conflict,
although discerning an employer's motivation when it disciplines
an employee in these circumstances may be difficult. The June 3
decision holds that such a factual situation should be reviewed
pursuant to a dual motive analysis.
The ALJ however, held that Complainant did not even present
a prima facie case Recommended Decision and Order (R. D.
and O.) at 15. Although the ALJ stated that "[e]ven if one were
to find, arguendo, that a prima facie case were
established, it is obvious that the actions taken by FPL against
Complainant . . . were entirely warranted . . . and would have
been pursued regardless of whatever protected activity
Complainant may have engaged in." R. D. and O. at 15. But the
ALJ did not reach that conclusion specifically in the context of
the protected activity found by the June 3 decision, nor is it
entirely "obvious," under dual motive analysis, that FP&L would
have discharged Complainant for his unprotected activity alone.
Thus, the ALJ did not appropriately examine the case within the
dual motive context. NEI cites Secretary of Labor,
Mine Safety and Health Administration ex rel Pack v.
Maynard Branch Dredging Co., 11 FMSHRC 168 (1989), rev.
denied sub nom. Secretary of Labor, Mine Safety and Health Admin.
ex rel Pack v. Federal Mine Safety and
[PAGE 3]
Health Review Comm'n, 896 F.2d 599 (D.C. Cir. 1990), a case
arising under the employee protection provision of the Federal
Mine Safety and Health Act (the Mine Act), 30 U.S.C. §
815(c) (1988), as supporting Respondent's position here.
To the contrary, I find that Pack supports the
approach taken in the June 3 decision. The ALJ held that,
although Maynard Branch was motivated in part by Pack's protected
conduct, the employer proved "that they were motivated by the
serious unprotected misconduct of Pack in neglecting his duties
as a security guard, i.e., in failing to report a dangerous
situation . . . and would have discharged him on that ground
alone." 11 FMSHRC at 171 (emphasis added). The Pack
case was not decided on the basis of complainant's failure to
present a prima facie case, it was decided pursuant to a
dual motive analysis.
The Federal Mine Safety and Health Review Commission
(FMSHRC) approved the application of dual motive analysis. The
FMSHRC carefully distinguished those actions protected by the
Mine Act from those not so protected:
Maynard Branch did not have a policy that prohibited miners
from reporting dangerous conditions to MSHA [the Department
of Labor Mine Safety and Health Administration], a policy
that clearly would be prohibited by the Mine Act. Nor
did Maynard Branch have a policy that required miners to
notify the company prior to contacting MSHA. The
company policy only required employees to report dangerous
conditions to the company, and contained no instructions or
prohibitions as to employees' actions vis-a-vis MSHA. . . .
Pack's failure to perform the essence of his job, that of
reporting security breaches, exposed other miners to the risk of
injury, and it was that breach that cost him his job.
Id. at 172-73 (emphasis added). [1]
The purpose of the employee protection provision of the
Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C.A.
§5851 (1981), is to keep channels of communication open to
the NRC to protect public health and safety. Among other things,
an employee is protected under the ERA when he is "about to"
report safety concerns to a government agency or another level of
management. 42 U.S.C.A. §5851 (a) (1) (A) and (D) (West
1994). Couty v. Dole, 886 F.2d 147, 148 (8th Cir.
1989)(threatening to make complaints to the NRC protected
activity). If an employer could discipline an employee based
only upon that employee's refusal to reveal safety concerns when
he is about to notify the NRC, it would significantly narrow this
provision of the Act and discourage reporting safety concerns
directly to the NRC. If the employee complied with management's
order, he would risk retaliation. If he also reported the
concerns to the NRC, any
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action taken by the NRC could be blamed on the employee.
For these reasons, I find no basis to reconsider the June 3
decision that disciplining an employee for refusing to reveal
safety concerns to management when he is about to report his
concerns to the NRC is a violation of the ERA. It is
important to note that the June 3 order did not decide the
ultimate question regarding the appropriate outcome of the dual
motive analysis to the facts of this case. On remand, FP&L will
have an opportunity to show it would have discharged Complainant,
even if he had not insisted on his right to speak first to the
NRC, for other legitimate reasons. [2]
In addition, I cannot agree with Respondent's
assertions that the June 3 decision was inconsistent with
existing NRC regulations or effected an improper amendment of
those regulations. Respondent's Motion at 7-10. Furthermore,
nothing in the June 3 decision implies that Respondent's primary
responsibility for safety at its power plant would be shifted to
the NRC. Respondent's Motion at 10-14. The decision stated only that the NRC is "the government agency responsible for
nuclear safety . . . ." D. and R.O. at 6. (Emphasis added.)
Accordingly, Respondent's Motion is DENIED.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] Other cases cited by NEI are distinguishable because they
arose in the refusal to work context where different
considerations apply, Leeco, Inc. v. Hayes, 965 F.2d 1081
(D.C. Cir. 1992); Miller v. Federal Mine Safety and Health
Review Comm'n, 687 F.2d 194 (7th Cir. 1982); Perez v.
Guthmiller Trucking Co., Case No. 87-STA-13, Sec'y. Dec. Dec.
7, 1988, or are mischaracterized, Passaic Valley Sewerage
Com'rs v. United States Dep't of Labor, 992 F.2d 474 (3d Cir.
1993) (PVSC). Thus, in holding that internal complaints
are protected under the whistleblower provision of the Clean
Water Act, the court in PVSC noted that it was
"most appropriate [and] congenial with inherent
corporate structure that employees notify management of their
observations" of safety and health violations, 992 F.2d at 478-79
(emphasis added), but did not hold employees had a duty to
make such reports. The court in PVSC was not presented
with and did not address the issue raised here.
[2] This is not a direction to the ALJ to second guess FP&L's
management decisions. He should examine only whether, absent
Saporito's expressed intent to contact the NRC, FP&L ordinarily
would have fired him for failing to reveal these concerns or for
other reasons, as it would any other employee.
