TMI II, 940 F.2d at 854-855. Thus, as of 1988 the Price-Anderson Act provided
the sole jurisdictional basis for damage actions arising out of nuclear incidents. Complainants'
civil action, which in essence alleges that Centerior created a public liability by causing a
nuclear incident which allegedly harmed Complainants, therefore was brought pursuant to
"the Atomic Energy Act of 1954, as amended . . . ." We see no reason to give
this phrase anything other than its ordinary meaning, and conclude that a Price-Anderson civil
action is an action under the Atomic Energy Act for purposes of Section 211.
We also conclude that the plain meaning of "proceeding"
includes Complainants' civil action under the Price-Anderson Act. "Proceeding"
[Page 8]
is defined as "[t]he taking of legal action." Webster's New World
Dictionary, Third College Ed., 1988. Complainants' civil action in federal district
court is clearly "legal action." Therefore it falls squarely within the plain meaning
of the term "proceeding" as used in Section 211 of the ERA.
R. D. and O. at 16. We disagree with this finding. First, Schrauder testified without
contradiction that the November 1994 denial of access would be applicable at Perry as well
as at Davis-Besse, and that a person in McCafferty's position would not have cleared the
security screening. T. 213.
1 Centerior Energy
Corporation is the holding company of Cleveland Electric Illuminating Company, Toledo Edison
Company and Centerior Service Company. Cleveland Electric Illuminating Company and
Centerior
Service Company are licensed by the Nuclear Regulatory Commission (NRC) to operate the
Davis-Besse Nuclear Power Station. The ALJ referred to these companies collectively as
"Centerior," and we will do the same.
2 Prior to 1992 the
employee protection provision of the ERA was denominated Section 210. In 1992 the
Comprehensive
National Energy Policy Act (CNEPA), Pub. L. No. 102-486, 106 Stat. 2776 (Oct. 24, 1992),
amended
Section 210 and renumbered it as Section 211. For the sake of convenience we will refer to the
provision as Section 211.
3 On July 25, 1996,
Complainants filed an action in the United States District Court for the Northern District of Ohio
Eastern Division, seeking enforcement of the Preliminary Order pursuant to Section 211(e) of the
ERA,
42 U.S.C. §5851(e) (1994). The following day Centerior filed with the Board a Motion to
Stay
Preliminary Order. On October 16, 1996, the Board denied Centerior's motion. Nothing in the
record
of this case indicates the outcome of Complainants' district court litigation.
4 Complainants are
members of Local 3 of the Heat and Frost Insulators and Asbestos Workers Union in Cleveland,
Ohio.
R. D. and O. at 3. There is a limited amount of evidence in the record regarding how union
members
are hired by contractors. It appears that employers request workers from Local 3, which refers
qualified workers based upon a list of available union members. Workers rise to the top of the
Local
3 list, and thus become eligible for placement, as workers higher on the list are placed in jobs.
When
there is more demand for insulators than are available locally, out of town insulators who are
members
of the Asbestos Workers Union ("travelers") are referred by the local. See
Transcript (T.) 106-122 (Scarl); T. 38-40 (Maloney); T. 278-280 (Cline).
5 As we discuss
below, Complainant Sean McCafferty was barred from the Davis-Besse site in November 1994
for
reasons unrelated to the unplanned exposure.
6 Section 2210(n)(2)
of the Price-Anderson Act provides in pertinent part:
With respect to any public liability action arising out of or resulting from a nuclear
incident, the United States district court in the district where the nuclear incident takes
place . . . shall have original jurisdiction without regard to the citizenship of any party
or the amount in controversy.
7 "Whole body
count" is the result of a bioassay which determines the level of radioactive material, if any,
a new
worker is bringing with him to his job. It allows the employer to establish a baseline prior to the
incoming employee being exposed to radioactivity. R. D. and O. at 5.
8 Centerior has a
policy designed to reduce overall exposures of workers to radiation --
to identify the fact that in some cases at the discretion of the radiation protection
manager if the use of respirators would impede and/or reduce the efficiency of workers
from conducting their activities in an efficient manner to minimize dose that we can then
require them not to wear respirators, but we would provide for appropriate engineering
controls in all cases to insure that the exposure or the contact with the contaminants
would be to the minimum possible.
T. 146-147 (Volza).
9 A "nuclear
incident" is defined in the Price-Anderson Act as:
any occurrence, including an extraordinary nuclear occurrence, . . . causing . . . bodily
injury, sickness, disease, or death, or loss of or damage to property or loss of use of
property, arising out of or resulting from the radioactive, toxic, explosive, or other
hazardous properties of source, special nuclear, or by-product material . . .
.
42 U.S.C. §2014(q) (1988).
10 An
"extraordinary nuclear occurrence" is defined as:
Any event causing a discharge or dispersal of source, special nuclear, or by-product
material from its intended place of confinement in amounts offsite, or causing radiation
levels offsite which the . . . Commission . . . determines has resulted or probably will
result in substantial damages to persons offsite or property offsite
. . . .
42 U.S.C. §2014(j) (1988).
11 Under the terms
of the 1988 Amendments Act, the "public liability action" encompasses "any
legal
liability" of any "person who may be liable" on account of a nuclear incident.'
TMI II, 940 F.2d at 854.
12 See Kansas
Gas & Electric Co. v. Brock, 780 F.2d, 1505, 1510 ( 10th Cir. 1985) (meaning of
"proceeding or any other action in §211 is unclear"). See also Passaic
Valley
Sewerage Comm. v. U.S. Dept. of Labor, 992 F.2d 474, 478 (3d Cir. 1993) (meaning of
"proceeding" under similar Clean Air Act provision ambiguous).
13 Congress partly
resolved the ambiguity regarding internal complaints by amending the ERA to include a specific
provision relating to those complaints. See 42 U.S.C. §5851 (1994).
14 Indeed, Centerior
concedes that "Section 211 can be read hyper-literally to apply to a claim under the
Price-Anderson Act (because the Price-Anderson Act happens to be part of the Atomic Energy
Act and 1988
amendments to Price-Anderson happened to allow consolidation of claims in federal court) . . .
."
Brief of Respondent Centerior Energy (Res. Br.) at 5.
15 Section 211, as
amended by the CNEPA, provides in pertinent part:
(C) The Secretary may determine that a violation of subsection (a) has occurred only
if the complainant has demonstrated that any behavior described in subparagraphs (A)
through (F) of subsection (a)(1) was a contributing factor in the unfavorable personnel
action alleged in the complaint.
(D) Relief may not be ordered under paragraph (2) if the employer demonstrates by
clear and convincing evidence that it would have taken the same unfavorable personnel
action in the absence of such behavior.
42 U.S.C. §5851(C) and (D) (1994). For a discussion of the change in burden of proof
contained
in this statutory language, see Dysert v. Florida Power Corp., Case No. 93-ERA-21,
ARB
Dec. and Ord., Aug. 7, 1995.
16 In this respect the
ALJ has misarticulated the burdens of persuasion that are applicable in an ERA case. See,
e.g., R. D. and O. at 11
17 Centerior
emphasizes that Maloney vacillated when asked at the hearing whether he agreed with
Centerior's
respirator philosophy, and indicated that he might ask for another assignment if asked to work in
an area
in which there would be a planned exposure to radioactivity. Res. Br. at 14. However,
Maloney's
testimony at hearing about how he feels now about radioactivity and Centerior's respirator policy
cannot
be used to prove that at the time it barred Maloney it had good reason to do so. The fact is that
Centerior officials made no attempt to find out how Maloney or any of the other Complainants
felt about
working in radioactive atmospheres before they barred them.
18 Apparently
Centerior's Schrauder thought Complainants were qualified for insulator work at Perry, as he
found
it necessary explicitly to inform Fishbach that they should not be placed at Perry because of their
federal
Price-Anderson Act litigation.
19 There are two
McCafferty Complainants, Owen and Sean. We refer here to Sean.
20 It appears that
Centerior learned of McCafferty's misrepresentation while preparing for hearing in this case.
21 McCafferty
testified: "That's what they told me upon leaving the [Davis-Besse] plant, if I had the
assessment
done that I would be reinstated." T. 268.
22 The interchange
which prompted the ALJ's conclusion on this point is:
Q. If there were any work available at Centerior at wage rates from $30 to $60 an hour
and you knew that you hadn't had a flag put in your file denying you access to the plant
because you filed a lawsuit, would you have gone through with the assessment?
A. Most certainly.
T. 268 (Sean McCafferty).
23 As our finding
here is based on the substance of McCafferty's testimony itself, as opposed to his demeanor, we
do not
need to accord the ALJ's contrary finding exceptional weight. See Frady v. Tennessee Valley
Authority, Case Nos. 92-ERA-19, 92-ERA-34, Sec. Dec. & Ord. of Remand, Oct. 23, 1995,
slip
op. at 7.
24 As we discuss
below, reinstatement is not appropriate for any of the Complainants in this case, so we need not
discuss
that form of relief here. However, as the Supreme Court has suggested in McKennon,
reinstatement would not normally be appropriate in after-acquired evidence cases such as
McCafferty's.
McKennon v. Nashville Banner Pub. Co., 130 L.Ed.2d at 863.
25 The Board ordered
those flags removed. P. O., slip op. at 3. On October 30, 1996, Centerior notified the Board and
the
parties that the flags had been removed. Letter to Steven D. Bell from Mary E. O'Reilly, dated
October 30, 1996.
26 Complainants are
not entitled to preferential treatment, however they are entitled to be placed in accordance with
normal
union and contractor processes.
27 Neither
Complainants nor Centerior explicitly address this issue. Centerior stated in its Motion to Stay
Preliminary Order dated July 26, 1996, that "[t]here is no ongoing or scheduled outage at
either
of Centerior's nuclear power plants . . . ." Motion to Stay at 12. Complainants did not
respond
to this claim. Complainants' Brief in Opposition to Centerior Energy's Motion to Stay
Preliminary
Order, August 14, 1996.
28 The Board
preliminarily ordered that relief pursuant to the amended provisions of Section 211. P. O. at 2-3.
29 Centerior asserts
that "the ALJ erred in assuming that insulators hired in October 1995 would have worked
through
December 22 . . . . The record shows that insulators who were hired in October were laid off on
December 18." T. 278. In fact, Cline, Centerior's witness, used both dates. See T.
278 (December 18) and T. 279 (December 22). In light of this contradictory testimony it was
reasonable for the ALJ to select the December 22 date, which fell at the end of a workweek.
30 This claim is not
quite accurate. Complainants (other than Maloney) were assumed to be among the early hires
and late
layoffs.
31 The Union local's
business manager testified and could have been cross examined on this point.
32 This finding also
formed the basis for the ALJ's order of "reinstatement":
If Centerior commenced the work at Davis-[Besse] testified to by Scarl, or any
work for which the six complainants would have been hired but for the October 13,
1995 letter barring their employment, the six complainants shall be immediately hired
for those insulator positions as if Centerior had never issued the ban on their
employment with Centerior.
R. D. and O. at 15.
33 Maloney would
have worked 29 straight time hours at $31.48 for six weeks ($5,477.52); nine time and a half
hours at
$47.22 for six weeks ($2,549.88); and one double time hour at $62.96 for six weeks ($377.76).
34 Maloney would
have worked 40 straight time hours at $31.48 for eight weeks ($10,073.60); and twenty time and
a half
hours at $47.22 for eight weeks ($7,555.20).
35 These four
Complainants would have worked 40 straight time hours at $31.48 for eight weeks ($10,073.60).
36 Each of them
would have worked 29 straight time hours at $31.48 for six weeks ($5,477.52); nine time and a
half
hours at $47.22 for six weeks ($2,549.88); and one double time hour at $62.96 for six weeks
($377.76).
37 Each of them
would have worked 40 straight time hours at $31.48 for eight weeks ($10,073.60); and twenty
time and
a half hours for eight weeks ($7,555.20).
38 Sean McCafferty
would have worked 40 straight time hours at $31.48 for eight weeks ($10,073.60).
39 Sean McCafferty
would have worked 29 straight time hours at $31.48 for six weeks ($5,477.52); nine time and a
half
hours at $47.22 for six weeks ($2,549.88); and one double time hour at $62.96 for six weeks
($377.76).
40 Forty straight time
hours at $31.48 for two weeks, ($2,518.40); plus 20 time and a half hours at $47.22 for two
weeks
(,888.80).
41 In the event that
no additional back pay is owed by Centerior for the period following April 6, 1996, the ALJ
should
determine the amount, if any, that Centerior has overpaid the Complainants and recommend that
amount
be repaid.
42 In the event that
no additional interest is owed by Centerior for the period following April 6, 1996, the ALJ
should
determine the amount, if any, that Centerior has overpaid the Complainants and recommend that
amount
be repaid.
43 In its December
3, 1996 Supplemental Preliminary Order, the Board preliminarily ordered Centerior to Pay to
Complainants' counsel the sum of $37,930.43.
44 These statutes
refer to "reasonably incurred by the applicant."
45 Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §2000e et seq. (1988), and the Civil Rights Attorney's
Fees
Act, 42 U.S.C. §1988 (1988), for example, do not contain this limiting language.
46 Although our
holding will affect Complainant's counsel in this case, we do not foresee this decision having
wide
ranging effect. Complainants and their counsel will be able to establish fee arrangements which
avoid
the possibility of fees being limited.
47 Complainants later
sought fees at the rate of $125.00 per hour for attorney Mischka. Supplemental Materials in
Support
of Motion for Award of Attorney Fees and Expenses (Supp. Mat.), September 4, 1996.
48 Centerior has
removed these flags pursuant to our Preliminary Order. See n. 25 above. This order
finalizes our earlier order.
49 Centerior has
already paid $146,301.91 in back pay and interest in compliance with the Board's Preliminary
Order.
On remand, should the total back pay and interest as calculated by the ALJ amount to more than
$146,301.91 Centerior will be liable to Complainants for the difference. Should the total amount
to less
than $146,301.91 Complainants will be liable to Centerior for the difference.