There were no fires in this caseyet the issue is fire safety.
The TVA
engaged the petitioner, the engineering firm of Stone & Webster (S&W),
to perform construction and maintenance work at Browns Ferry. The dispute
before us was born in the first days of February 1993, when S&W was
overhauling the platform steel in the drywell of Unit 3, one of Browns Ferry's
three reactors. One of S&W's lead foremen, Douglas Harrison, was working
on the drywell upgrade. Harrison complains that S&W first demoted him to
plain foreman and then transferred him out of the drywell (a desirable place to
work). Each time, he says, S&W was retaliating because Harrison had
engaged in protected activity under § 5851: he had spoken out about fire
hazards to S&W and TVA officials, as well as to his co-workers.
S&W tells a different story. Harrison did not engage in any
protected activity, and even if he did, S&W was not retaliating against him.
Harrison's demotion followed from a re-shuffling
of the labor force, a common happening at S&W. As for Harrison's transfer
out of the drywell, S&W argues that Harrison had been disrupting S&W's
drywell project. Under cover of safety concerns, he had incited his fellow
iron workers to halt work over a labor dispute. And in any case, even if
Harrison did talk about safety with his co-workers, § 5851 does not treat discussions with
co-workers as a protected activity.
Harrison filed a complaint with the Department of Labor, which
wended its way to the Secretary of Labor. Reversing an Administrative Law Judge (ALJ), the
Secretary entered a victory for Harrison. S&W petitions this court to
overturn the Secretary of Labor's decision. Why S&W is pursuing the case
may seem something of a mystery. The Secretary of Labor ordered S&W to
compensate Harrison only for ten weeks' diminished wages at two dollars too
little per hourabout $800 by our reckoningplus Harrison's
attorney's fees. For S&W, Harrison is not the point. The NRC is. After
S&W lost before the Secretary of Labor, the NRC tentatively adopted the
Secretary's finding of retaliation and imposed a civil fine of $80,000, plus
other, unspecified enforcement measures. S&W now petitions this court
because, if S&W prevails, the NRC states that it will re-
consider its actions.
Beyond trying to clarify the evidentiary framework for 42 U.S.C.
§ 5851, we elaborate one principle with import beyond the doings at Browns Ferry in
early 1993. The Secretary of Labor would have us issue a blanket ruling that
§ 5851 protects an employee's speech to co-workers.
S & W urges the equally broad but opposite rule. But we need not decide
today whether § 5851 protects an isolated or private communication, because
the circumstances of Harrison's transfer pose, it seems to us, a narrower
question: one of viewing acts in context.
We frame it this way. Assume that an employee has already raised
the alarm about nuclear safety within the prescribed channels of 42 U.S.C. § 5851.
The employer then commits another closely-related and public act of alarm-raising, but this time
§ 5851 may or may not have protected that acthad it
occurred in isolation or as a private communication. Can the employer single
out that particular act and punish the employee without fear of sanction under
§ 5851? We think that to allow the employer to retaliate under these
circumstances would thwart the purpose of 42 U.S.C. § 5851. We affirm.
I. Summary of facts
Douglas Harrison had begun working for S&W as an
ironworker journeyman in
June 1992. Six weeks later he was promoted to foreman, and on October 6, 1992,
he advanced to second lead foreman on the drywell project. As part of a
routine force reduction in late November of that year, S&W demoted Harrison
back to foreman. Harrison recognized that his inferior seniority meant he
would be first to be demoted, and he offered no complaint. Then, in early
January of 1993, S&W pushed him back up to second lead foreman, again under
the same understanding about Harrison's first-to-go seniority. So when the dispute in this case
started, Harrison was the number two lead foreman, overseeing the upgrading of one of two
platforms.
On February 1, 1993, Harrison held a weekly safety meeting, one
of his job's responsibilities. Harrison's ironworkers had one gripe: firewatch. After
wrapping up a shift's hot work, someone had to make sure that no fires broke
out, as one might fear with welding gear, cooling steel and the like lying
about. Until October 1992, laborers (not ironworkers) had been charged with
this duty. Under S&W's new firewatch scheme, ironworkers assumed primary
responsibility for the task, although two laborers on a "roving firewatch"
would help on each elevation or level of the drywell. At the weekly safety
meeting, the ironworkers insisted that the new scheme was unsafe. Afterwards,
their foremen told Harrison that the new scheme did not comply with the TVA's
fire prevention rules.
Harrison went to tell the TVA fire marshal, Gary Wallace, about
the ironworkers' firewatch complaints. Harrison then joined the laborers' lead
foreman, David Sparks, and went to talk with Steven Ehele. Ehele was S&W's
drywell manager. He had also attended the weekly safety meeting that day.
Harrison told Ehele that he had spoken with the TVA fire marshal and that the
marshal wanted to talk to Ehele. Ehele, who seems to have a gift for memorable
phrases, responded that Harrison and Sparks "were eating [him] alive on man
hours in [the] drywell now on fire watches."
The demotion. When Harrison arrived at work the next
day, February 2, he learned that the firewatch problem remained unresolved. He also learned
that Ehele had not contacted fire marshal Wallace, whereupon Harrison went
straight to the NRC field office across the street and filed a complaint with
the NRC representative. At about 2:00 pm, one of Harrison's supervisors, Wayne
Tennyson (Ehele's subordinate), told Harrison that he had been demoted to
foreman.
The transfer. At work on the third day, February 3,
Harrison said he did not wish to use his seniority to bump a foreman down to journeyman and he
voluntarily took a place as a journeyman himself. He also told the ironworkers
about his demotion and the failure to resolve their firewatch concerns. The
ironworkers then refused to work. Ehele implored them to return to work, which
they did. That afternoon, S&W management and union representatives decided
that laborers would re-assume full responsibility for firewatch.
Finally, on February 4, Ehele had Harrison removed from the
drywell. S&W's job steward for the ironworkers, Larry Morrow, delivered the message
to Harrison. Morrow repeated the ever-evocative
Ehele's remark that he wanted Harrison transferred because "[Harrison] was a
troublemaker, and that [Harrison] was like Moses standing at the Red Sea to the
ironworkers in [the] drywell." Harrison would begin ironwork outside the
drywell on less prestigious, less essential tasks like putting up chain-link
fences. Only Harrison was demoted; only Harrison was transferred.
There is more to this story. Missing are some unpersuasive claims
(mostly by S&W), but also some partly exculpatory evidence. We reserve those facts
until they fit more neatly into the analysis.
II. Procedural posture
This court offers the third layer of review for this case. In 1993,
Harrison filed an administrative complaint with the Wage and Hour Division of the U.S.
Department of Labor under 42 U.S.C. § 5851(b). He alleged that both his
demotion and his transfer were discriminatory and retaliatory. The Wage and
Hour Division sided with S&W, and Harrison appealed. In 1994, the ALJ also
came down for S&W. The ALJ found that the demotion was not an adverse
action against Harrison on the grounds that it was not discriminatory. The
transfer out of the drywell, however, the ALJ did consider to be an adverse
action stemming from Harrison's February 3 meeting with his co-workers.
But even if the transfer was retaliatory, the ALJ concluded that § 5851(a)
did not encompass meeting with co-workers.
Section 5851(a) thus did not protect Harrison from that particular act of
retaliation. The ALJ recommended dismissal of the case.
Harrison appealed again, this time to the Secretary of Labor. On
August 22, 1995, the Secretary reversed the ALJ and found that Harrison's demotion and
transfer both constituted retaliation under § 5851(a). As for the
demotion, the Secretary found that it had been an adverse action (thus
reversing the ALJ), and that it had been retaliatory. With respect to the
transfer, the Secretary agreed that it resulted from Harrison's February 3
meeting with his co-workers.
The Secretary reversed the ALJ's conclusion that § 5851(a) did not cover
such meetings. In the Secretary's judgment, it did.
S&W's timely petition for review followed. We have
jurisdiction to
review the Secretary's 1995 order under 42 U.S.C. § 5851(c). On matters of
law, we review de novo, keeping in mind the deference we pay to the Secretary
of Labor in construing the statutes he is charged with administering.
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Bechtel Construction Co.
v. Sec. of Labor, 50 F.3d 926, 931, 933 (11th Cir.1995). On matters of
fact, we review the Secretary's order for substantial evidence. 5 U.S.C. §
706(2)(E) (Administrative Procedure Act). We ask whether such relevant
evidence exists " "as a reasonable mind might accept as adequate to support a
conclusion.' " Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420,
1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB,
305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). Here the ALJ and
the Secretary of Labor differed. This disagreement causes us to review the
Secretary's order "more critically." Bechtel, 50 F.3d at 933.
Ultimately, however, the decision is the Secretary's. Id. at 932. We
ensure only that the Secretary's conclusion, if different from the ALJ's, is "
"supported by articulate, cogent, and reliable analysis.' " Id. at 933
(quoting Northport Health Serv., Inc. v. NLRB, 961 F.2d 1547, 1553-54
(11th Cir.1992)).
III. Adverse actions against Harrison
Before turning to these happenings at Browns Ferry, a word is in order
about how the evidentiary framework of 42 U.S.C. § 5851 operates. The Secretary
and S&W have evinced considerable disagreement over the extent to which
this framework draws on the general law of employment discrimination. We think
it important to dispel some of the seeming perplexity of 42 U.S.C. §
5851.
In 1992, Congress amended § 5851 to codify a particular
framework regarding burdens of proof where no statutory guidance existed before. Energy
Policy Act of 1992, P.L. 102-486, § 2902(d); see also Mackowiak v.
University Nuclear Systems, Inc., 735 F.2d 1159, 1164 (9th Cir.1984)
(upholding similar framework). Under the statutory framework, a complainant
must first pass a gatekeeper test before an inquiry may commence. The
Secretary may investigate only if the complainant succeeds in making a "prima
facie showing" that retaliation for protected activity "was a contributing
factor in the unfavorable personnel action alleged in the complaint." 42
U.S.C. § 5851(b)(3)(A). Then the investigation must go forward, unless 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(b)(3)(B).
Section 5851's reference to a "prima facie showing" has bred some
confusion, chiefly because the phrase evokes the sprawling body of general employment
discrimination law. See, e.g., Price Waterhouse v. Hopkins, 490 U.S.
228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989); Mt. Healthy City School Dist.
Bd. of Ed. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977);
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36
L.Ed.2d 668 (1973). The Secretary of Labor and S&W have quarreled over how
these cases and their innumerable progeny affect Section 5851's evidentiary
burdens. But Section 5851 is clear and supplies its own free-standing
evidentiary framework. After a complainant has cleared the prima facie
gatekeeper testand assuming she has not been knocked out by a preemptory
"clear and convincing" response from the employerthe Secretary is to
investigate whether the complainant's behavior actually was "a contributing
factor in the unfavorable personnel action." 42 U.S.C. § 5851(b)(3)(C).
The burden to persuade the Secretary falls upon the complainant, and she must
do so by a preponderance of the evidence. Dysert v. Sec. of Labor, 105
F.3d 607, 610 (11th Cir.1997). If the complainant succeeds, the employer has a
second chance to offer "clear and convincing evidence" that it would have done
the same thing anyway, i.e., "in the absence of such behavior." §
5851(b)(3)(D).
For employers, this is a tough standard, and not by accident.
Congress appears to have intended that companies in the nuclear industry face a
difficult time defending themselves. "Recent accounts of whistleblower
harassment at both NRC licensee ... and [Department of Energy] nuclear
facilities ... suggest that whistleblower harassment and retaliation remain all
too common in parts of the nuclear industry." H. Rep. No. 102-474(VIII), at 79
(1992), reprinted in 1992 U.S.C.C.A.N. 1953, 2282, 2297. "These
reforms," the House Report continues, "are intended to address those remaining
pockets of resistance." Id.
We turn to address the specifics of Harrison's demotion and
transfer.
A. Harrison's demotion
Under 42 U.S.C. § 5851(b)(3)(C), the burden of persuasion
falls first upon Harrison to demonstrate by a preponderance of the evidence that
retaliation for his protected activity was a "contributing factor" in the
decision to demote him. Harrison cannot satisfy this requirement through
direct evidence. S&W did and said nothing that would indicate it sought to
retaliate against Harrison by demoting him on February 2. Drywell manager Ehele
did say that Harrison was eating him alive on man-hours.
But Ehele's remark does not suggest a desire to suppress Harrison or his
complaint. S&W argues that Ehele was talking about over-exposure
to radioactivity; and even if Ehele meant wage costs, S&W was not
forbidden to consider expenses in weighing safety concerns. That said, the
circumstances do seem suspicious. A man starts complaining about fire safety.
The next day he is demoted. The Secretary of Labor found that by a
preponderance of the evidence, Harrison had made his showing. Reviewing for
substantial evidence to support this finding, we affirm.
After hearing his ironworkers' grousing about firewatch, Harrison
spoke to the TVA fire marshal, the drywell manager (Ehele) and ultimately to the NRC field
representative. If an employee talks about safety to a plant fire official, an
employer and an industry regulator, he or she acts squarely within the zone of
conduct that Congress marked out under 42 U.S.C. § 5851(a)(1). S&W
also knew of Harrison's contact with the TVA fire official and with Ehele
(though not of Harrison's complaint with the NRC). By February 2, Harrison had
told Ehele (his supervisor) of his TVA contact and Ehele obviously knew first-hand
of the approach to him. S&W would have us believe that S&W officials
thought Harrison was carping about labor issues, but we find this unlikely.
Harrison's visit to the TVA fire marshal should have put at least Ehele on
notice of Harrison's § 5851-shielded conduct.
So far the ALJ and the Secretary were in agreement. When they
considered whether demotion was an adverse action, however, they parted ways. The ALJ
decided that the demotion was not an adverse action because the demotion, in
the ALJ's eyes, was not discriminatory. But discriminatory and adverse have
distinct meanings. An "adverse action" is simply something unpleasant,
detrimental, even unfortunate, but not necessarily (and not usually)
discriminatory. The Secretary corrected this error and concluded that
Harrison's demotion was an adverse action.
In determining whether Harrison met his burden under §
5851(b)(3)(C), we ask whether the Secretary properly inferred that retaliation against Harrison
was more likely than not a "contributing factor" to his demotion. The
Secretary said yes, for only one day separated Harrison's protected conduct
from his demotion. Given this proximity in time and the circumstances as laid
out above, we see no grounds for gainsaying the Secretary's inference of
causation.
The burden thus shifted to S&W to demonstrate, "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(b)(3)(B). This is a high
standard to begin with; and on review only for substantial evidence supporting
the Secretary, S&W has a steep hill to climb.
S&W almost makes it. Its principal argument is to snap the
temporal link that the Secretary infers. Five S&W managers offered unimpeached
testimony that S&W decided to demote Harrison days before he raised any fire
concerns. For in late January the field manager for all construction work at
Browns Ferry, James Butts, had reviewed the roster of drywell employees. Butts
surmised that the project was top-heavy:
the ratio of foremen to ironworkers was 9:38, double the 1:8 ratio that
S&W generally targets. On either January 27 or 29, Butts asked his
subordinates, including Ehele, to review their rosters for top-heaviness.
Ehele turned to his own subordinate managers (Tennyson, Sertway, and Fonte)
for suggestions, but named no one himself.
Ehele's subordinates picked three foremen: Tommy Willis, Troy
Faulks and
Harrison (a lead foreman). The reasons for picking Harrison were manifold:
Harrison supervised a lone foreman and crew; the work on his particular
platform was drawing to its end; his seniority put him below the other lead
foreman, Eugene Hannah. By Saturday, January 30, Ehele had informed field
manager Butts of these three recommendations.
But it was not until Tuesday, February 2after the questions
of fire safety had arisenthat Harrison was actually informed of his demotion.
This gap in time introduced the Secretary's critical doubt about S&W's
motives. S&W responds reasonably enough that its managers had bigger
matters on their minds than making sure Harrison's demotion was prompt. But
another problem for S&W is that of the three recommendations for demotion,
S&W acted only on Harrison. The other two, Willis and Faulks, had been
slated for reduction to ironworker journeyman. Ehele's subordinates Tennyson
and Sertway intervened on February 2, however, to persuade Ehele and Butts not
to demote them, on the grounds that their work was too sophisticated for
journeyman's pay. S&W points out that Harrison was only demoted to foreman
at $2 less an hour and would oversee the same crew in the same location. Is it
plausible that, if S&W wanted to squelch Harrison, it would have chosen
such a mild and ineffective technique? S&W also says that it did not
replace Harrison, which supports its contention that Harrison was demoted
because of the roster review.
S&W's points are well-taken. We do not doubt that
S&W had legitimate reasons for demoting Harrison. If the review were de novo, we might
agree with S&W that it had met its burden of rebuttal. In our eyes, S&W might
have demoted Harrison had he never uttered a word about fire safety to anyone.
But it is not our task to make this judgment. Congress has charged us with a
much more limited scope of review. Our task is to determine whether
substantial evidence supports the Secretary's decision. We agree with the
Secretary that such evidence exists. We cannot say that it was unreasonable
for the Secretary to hold that S&W had failed to rebut under §
5851(b)(3)(D).
B. Harrison's transfer
The circumstances of Harrison's transfer out of the drywell are less
muddled. On February 3after his demotionHarrison asked the remaining lead
foreman, Eugene Hannah, to gather the members of Harrison's former ironworker
crews. Harrison announced to the assembled workers that he had been demoted
and that nothing had changed on the firewatch. The ironworkers then decided
among themselves to refuse to work until S&W rectified the fire safety
issue. Ehele came and mollified them enough to return to work, but later that
same day S&W and the union agreed to return to the old firewatch procedure.
Firewatch again became the laborers' responsibility.
The next day, Ehele sent job steward Morrow to fetch Harrison and
send him to work outside the drywell. As we mentioned before, non-drywell
work was ancillary, enjoyed less status and seems to have been less
interesting. Morrow reported to Harrison that Ehele had compared Harrison to
Moses at the Red Sea.
Here Harrison can build his case on direct evidence of S&W's
animus. We do not understand Ehele to have underscored Harrison's moral courage. Rather,
we think Ehele saw Harrison as a "troublemaker," in Ehele's own words. The
Secretary did not err in viewing retaliation as a probable contributing factor
to Harrison's transfer out of sight and out of the drywell.
Against Harrison's evidence S&W offers little in rejoinder.
Ehele mentions that Harrison had earlier requested a transfer to an outside crew.
This is a plausible contention, as Harrison, now working as a journeyman, might
prefer not to work alongside people he had just recently supervised. But
S&W falls short of convincing us, as he failed to convince the ALJ or the
Secretary, that S&W would have transferred Harrison had he never provoked
trouble for S&W at the ironworkers' meeting. Substantial evidence upholds
the Secretary's finding of retaliation.
Our conclusion leaves an assumption hanging. Section 5851 does
not protect every act that an employee commits under the auspices of safety.
Whistleblowing must occur through prescribed channels. Did Harrison's advising
his co-workers of his fire worries constitute a protected activity under § 5851(a)? If
not, the whistleblower provision would not avail Harrison, and S & W's
retaliation would be permissible. We are unaware of any case law that guides
our response to this particular question. We decide it afresh today.
Section 5851(a) lists six ways that an employee may act under its
aegis. Listing only the three relevant provisions, an employee commits a protected
activity if he:
- (A) notified his employer of an alleged violation of this chapter or the Atomic
Energy Act of 1954....
- (D) 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 [or] ...;
- (F) assisted or participated or is about to 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.
We note as a starting point that Congress drafted subparagraph (F)
in broad terms. The statute shields any employee who "is about to assist or participate
in any manner ... or in any other action to carry out the
purposes of this chapter or the Atomic Energy Act of 1954, as amended."
42 U.S.C. § 5851(a)(1)(F) (emphasis added). "Purpose" is an open-ended
word. We presume that Congress used this word advisedly. In fact, when
Congress revised § 5851 wholesale in 1992, it left this wording intact.
See 42 U.S.C. § 5851(a)(3) (1991).
The Secretary of Labor argues that § 5851(a) is elastic
enough to cover Harrison's speech to his co-workers.
The Secretary administers § 5851, and we accord his or her interpretations
due deference. English v. General Electric Co., 496 U.S. 72, 83 n. 6,
110 S.Ct. 2270, 2277 n. 6, 110 L.Ed.2d 65 (1990); Bechtel, 50 F.3d at
932. In Bechtel, this court acceded to the Secretary's contention that
the pre-1992 version of § 5851 covered internal complaints "made to
supervisors and others," a position Congress ratified with the current
statute's subparagraph (A). Id. at 932, 932 n. 1. As in Bechtel,
we ask whether the Secretary's reading is a permissible reading of the statute.
Id. at 932.
We do not need to adopt as broad a reading of the statute as the
Secretary would wish, however. The facts of Harrison's transfer permit a less ambitious
decision. Harrison's discussion with his fellow ironworkers was, in the
context in which it occurred, an action "to carry out the purposes" of the
Atomic Energy Act and Chapter 73 of Title 42 (Development of Energy
Sources)and to guarantee nuclear safety in particular. Harrison may very
well have been wrong about the concrete dangers posed by the new firewatch
scheme at Browns Ferry. We do not know. The important question, however, is
not whether he was right, but whether he was acting in furtherance of safety
compliance when he spoke to the co-workers.
We conclude he was. The meeting with the ironworkers was included in a series
of communications to employer representatives and to TVA officials. All of
these complaints were, under the circumstances, mutually reinforcing. The
meeting with the ironworkers reiterated publicly and in an emphatic way what
Harrison had said in the earlier communications. As a practical matter,
Harrison's statements at the meeting served as another notice to the employer.
To exclude the meeting as a recognized effort at whistleblowing would seem
artificial; to denude the meeting of its context would seem to strip it of its
real content. In a context directly and immediately involving other
communications that § 5851(a) explicitly recognizes as protected activity,
the Secretary of Labor has permissibly construed § 5851(a) to include
Harrison's meeting with his co-workers.
S&W retorts that this position ignores that Congress felt it necessary
in 1992 to insert a particular sub-paragraph
to cover internal complaints to employers. 42 U.S.C. § 5851(a)(1)(A). If
Congress inserted a provision for speech to employers, why not for speech to
fellow employees? Because, S&W says, Congress did not want to extend
protection this far. S&W's interpretation is not implausible on its face.
At the time of the 1992 amendments, several circuits had ruled that §
5851(a) encompassed complaints to employers. Bechtel, 50 F.3d at 931-32
(recounting history of case law). Nonetheless, the Fifth Circuit had ruled the
other way. Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th
Cir.1984). The legislative history of the 1992 Energy Policy Act, too, makes
clear that Congress intended the amendments to codify what it thought the law
to be already. Congress sought "to explicitly provide whistleblower
protection for nuclear industry employees [who] (1) notify their employer of an
alleged violation rather than a federal regulator." H.R. No. 102-474(VIII), at
78, reprinted in 1992 U.S.C.C.A.N. 1953, 2282, 2296 (emphasis added).
In other words, Congress thought the statutory language broad enough already,
but recognized that it required explication.
We recognize that the policy implications of the Secretary's
construction may not be flawless. There may be some difficulty in distinguishing between
offering a shield behind which some employees may incite trouble about a host
of non-safety issues, including labor disputes, and one behind which well-intentioned
employees may raise an alarm against safety hazards. But this is a balance for
the Secretary of Labor to attempt to strike in the first instance. The only
question is whether the Secretary's balance here, as we have cast it, is a
permissible reading of the whistleblower provision. We think it is.
IV. Conclusion
The Secretary of Labor found that Stone & Webster
impermissibly retaliated against Douglas Harrison at Browns Ferry in February 1993, first
through demotion and then through transfer. On the facts, we decide that
substantial evidence supports the Secretary's finding. On the law, we uphold
the Secretary's interpretation of § 5851(a) as shielding the expression of
safety-related concerns to fellow workers, when, as here, that expression has a public
dimension and fits closely into an extended pattern of otherwise protected
activity.
AFFIRMED.
[ENDNOTES]