[Last updated July 16, 2004]

I. Overview

A. Statutory/regulatory scheme

1. Generally

2. Roles of DOL and NRC in protecting employees

B. Purposes

1. Generally

2. To protect against discriminatory treatment

a. Provision modeled on Mine Safety & Health Act

b. Protection of employees stronger purpose than promoting safety

3. To ensure the flow of information

a. Regulatory scheme based, in part, on employee participation in enforcement

[N/E Digest I]
VICARIOUS LIABILITY OF EMPLOYER FOR ACTIONS OF SUPERVISOR

In June, the United States Supreme Court issued two Title VII sexual discrimination decisions that spoke to the vicarious liability of an employer for the actions of a supervisor where no tangible adverse employment action was taken. Applying general agency principles, the Court held that vicarious liability is applicable, but that the employer may raise the affirmative defense of reasonable care and failure by the complainant to take advantage of preventative or corrective opportunities provided by the employer. Specifically, in Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (June 26, 1998), the Court held that when a party seeks to impose vicarious liability based on an agent's misuse of delegated authority, the Restatement (Second) of Agency § 219(2)(b)'s "aided in the agency relation" rule provides the appropriate analysis. The Court held that

In order to accommodate the agency principles of vicarious liability for harm caused by misuse of supervisory authority, as well as Title VII's equally basic policies of encouraging forethought by employers and saving action by objecting employees, we adopt the following holding in this case and in Faragher v. Boca Raton, post, also decided today. An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule Civ. Proc. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. While proof that an employer had promulgated an anti-harassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing any unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense. No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.

Similarly, in Faragher v. Boca Raton, Fla., 118 S.Ct. 2275 (June 26, 1998), also a Title VII case, the Court held that an employer is vicariously liable for actionable discrimination caused by a supervisor, but subject to an affirmative defense looking to the reasonableness of the employer's conduct as well as that of a plaintiff victim.

In these decisions, the Court observed that analysis of Title VII cases as being either a "quid pro quo" or "hostile work environment" type are of limited utility. Where a claim is based on hostile work environment, a showing must be made of severe or pervasive conduct. When discrimination is thus proved, the factors stated in the quoted language above, not the categories quid pro quo and hostile work environment, control on the issue of vicarious liability.

In a Title IX decision, Gebser v. Lago Vista Independent School District, 118 S.Ct. 1989 (June 22, 1998), however, the Court held that damages may not be recovered for teacher-student sexual harassment in an implied private action unless a school district official who, at a minimum, has authority to institute corrective measures on the district's behalf, has actual notice of, and is deliberately indifferent to, the teacher's misconduct.

[Editor's note: There are many similarities between DOL whistleblower adjudications and Title VII cases. In Varnadore v. Oak Ridge National Laboratory, 92-CAA-2 and 5 and 93-CAA-1 (Sec y Jan. 26, 1996), the Secretary found that the Title VII decision in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), regarding a hostile work environment is equally applicable to environmental whistleblower cases. A close analysis of the pertinent whistleblower provision and Title VII should be made, however, before assuming that Title VII precedent governs DOL whistleblower proceeding. Compare Reid v. Methodist Medical Center of Oak Ridge, 93-CAA-4 (Sec'y Apr. 3, 1995) (finding that significant language difference between Title VII and the environmental whistleblower provisions rendered it inappropriate to read the breadth of Title VII's coverage into the environmental whistleblower provisions in regard to the interpretation of the term "employee").

See also Coppack v. Northrop Gumman Corp., 1998-SWD-2 (ALJ July 24, 1998) (ALJ interpreted Varnadore as requiring, inter alia, "the existence of respondeat superior liability or whether the employer either knew or should have known of the harassment and failed to take prompt, remedial action." Slip op. at 36.)]

See also Williams v. Administrative Review Board, USDOL, __ F.3d __, No. 03-60028 (5th Cir. July 15, 2004), 5th Cir. decision on applicability of Ellerth/Faragher hostile work environment analysis to ERA whistleblower complaints.]

I.A.1. SWDA citation; substantive coverage of Act

Under the employee protection provision of the SWDA, 42 U.S.C. § 6971(a), reference is made to "any proceeding under this chapter." The referenced chapter is "Chapter 82, Solid Waste Disposal," 42 U.S.C. §§ 6901-6992k (1988), which governs, inter alia, the treatment, storage, transportation, and disposal of hazardous waste. Subchapter III, 42 U.S.C. §§ 6921-6939b.

Where the chemicals used by a respondent are regulated under the Act, 40 C.F.R. § 261.33(f) (1991), and the respondent is subject to regulation as a "small quantity generator," 40 C.F.R. § 261.5(a) and (g), complaints about chemical storage and disposal are covered substantively under the SWDA whistleblower provision.

Williams v. TIW Fabrication & Machining, Inc., 88-SWD-3 (Sec'y June 24, 1992).

CERCLA NOW GOVERNED BY 29 C.F.R. PART 24
[N/E Digest I A 1]

In a Final Rule establishing the Administrative Review Board, 29 C.F.R. § 24.1 was changed to specifically include the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. 9610 as one of the employee protection provisions implemented by Part 24. Final Rule, Establishment of the Administrative Review Board, 61 Fed. Reg. 19982, 19985 (May 3, 1996).

I.A.2. NRC's authority to penalize employer for discrimination against whistleblowers in absence of DOL finding

The Nuclear Regulatory Commission takes the position that it can take an enforcement action pursuant to 10 C.F.R. § 50.7 based on discrimination by an employer against quality assurance personnel for engaging in protected activity even though the Department of Labor has not made a prior determination that section 210 of the Energy Reorganization Act was violated. NRC and DOL have complementary, yet independent authorities and responsibilities in protecting employees from discrimination and retaliation for raising matters bearing on nuclear safety. Section 210 empowers DOL to grant remedies directly to employees who have suffered discrimination for engaging in protected activities; it does not limit NRC's authority under the Atomic Energy Act to investigate alleged discrimination and take action to combat it. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), 51 Fed Reg 25127 (docket nos. 50-413, 50- 414, EA 84-93) (order imposing civil money penalty, July 10, 1986).

[N/E Digest I A 2]
GAO REPORTS

On September 2, 1997, the U.S. Government Accounting Office issued a Report to the Chairman, Subcommittee on Oversight and Investigations, Committee on Commerce, House of Representatives, Nuclear Power Safety: Industry Concerns With Federal Whistleblower Protections Systems (GAO/HEHS-97-162, Sept. 2, 1997). This report is a follow-up to an earlier report entitled Nuclear Employee Safety Concerns: Allegation System Offers Better Protection, but Important Issues Remain (GAO/HEHS-97-51, Mar. 31, 1997), which addressed concerns by some members of Congress that laws, as implemented by NRC and DOL, have not adequately protected nuclear power industry workers who raise health and safety issues. The follow-up report discusses how recent NRC and DOL actions and proposals to strengthen whistleblower protections have been received by the nuclear power industry.

[N/E Digest I A 2]
NRC NOTICE ON "SAFETY-CONSCIOUS WORK ENVIRONMENT"

On February 26, 1997, the NRC published in the Federal Register a notice requesting public comment on strategies to address the need for its licensees to establish and maintain a safety-conscious work environment. Request for public comment, Safety-Conscious Work Environment, 62 Fed. Reg. 8785 (1997). The notice proposes, inter alia, that

(b) When circumstances occur that could adversely impact the safety-conscious environment, or when conditions arise that indicate the potential emergence of an adverse trend in the safety-conscious work environment, the licensee shall take action as required to ensure that the safety-conscious environment is preserved. Indicators that may be considered as possible evidence of an emerging adverse trend include, but are not limited to:

(1) Adverse findings by the Department of Labor or the NRC Office of Investigation (OI) concluding that discrimination has occurred against employees for engaging in protected activity, including a finding of the existence of a hostile work environment;

NRC STATEMENT OF POLICY
[N/E Digest I A 2 and XII D 1 d]

On May 14, 1996, the Nuclear Regulatory Commission issued a policy statement "to set forth its expectation that licensees and other employers subject to NRC authority will establish and maintain safety-conscious environments in which employees feel free to raise safety concerns, both to their management and to the NRC, without fear of retaliation." Freedom of Employees in the Nuclear Industry To Raise Safety Concerns Without Fear of Retaliation; Policy Statement, 61 Fed. Reg. 24336 (May 14, 1996). The policy statement, inter alia, stresses that management should provide leadership in this regard, that licensees have a responsibility for the acts of their contractors, and that although free to come to the NRC at any time, employees should normally raise concerns with the involved licensee. The policy statement notes that the "NRC should normally be viewed as a safety valve and not as a substitute for raising safety concerns." 61 Fed. Reg. at 24340.

NRC; RELATIVE ROLES OF NRC AND DOL PURSUANT TO THE WHISTLEBLOWER PROTECTION PROVISION THE ERA
[N/E Digest I A 2]

In a decision discussing the NRC's authority to issue a subpoena when investigating whether a respondent's past treatment of whistleblowers posed a threat to public health and safety, the court in United States of America v. Construction Products Research, Inc., 1996 U.S. App. LEXIS 202 (2d Cir. 1996) (related to 93-ERA-25), discussed the relative roles of the Department of Labor and the NRC pursuant to the whistleblower protection provision of the ERA, 42 U.S.C. § 5851. The court wrote:

An employee who claims retaliation under [42 U.S.C. § 5851(a)(1)(D)] must file a complaint with the DOL, which may then investigate the allegations and make a determination. See 42 U.S.C. § 5851(b). Congress logically gave the power to resolve § 5851 retaliation claims to the DOL, as those claims are within the DOL's particular area of expertise. See English v. General Elec. Co., 496 U.S. 72, 83 n.6, 110 L. Ed. 2d 65, 110 S. Ct. 2270 (1990) ("The enforcement and implementation of [§ 5851] was entrusted by Congress not to the NRC--the body primarily responsible for nuclear safety regulation--but to the Department of Labor.") (emphasis added); Norman v. Niagara Mohawk Power Corp., 873 F.2d 634, 637 (2d Cir. 1989).

It bears emphasis, however, that the NRC is not trying to adjudicate [the Complainant's] individual retaliation claim; [the Complainant] himself has already filed a claim with the DOL and has received a favorable decision. Instead, the NRC is attempting to investigate Respondents' general employment practices to determine whether those practices are having a chilling effect on would-be whistleblowers. That aim is quite distinct from the aim of the DOL investigation:

"The [NRC's] investigatory powers and those of the [DOL] under [§ 5851] neither serve the same purpose nor are invoked in the same manner. They are, rather, complementary, not duplicative . . . Under [§ 5851] the [DOL] apparently lacks two remedial powers--which the [NRC] possesses--. . . the right to take important action against the employer, and the . . . authority to do so immediately . . . . The [DOL] may order only reinstatement and back pay--not correction of the dangerous practices themselves."

Union Electric, 9 N.R.C. at 138; cf. 42 U.S.C. § 5851(j)(2) (a DOL finding that a retaliation claim has no merit "shall not be considered by the [NRC] in its determination of whether a substantial safety hazard exists").

Construction Products Research, Inc., 1996 U.S. App. LEXIS 202 at *19-21.

I.A.2. Overview; Applicable Statutes; Energy Reorganization Act

While the Energy Reorganization Act of 1974, section 210, as amended, 42 U.S.C. § 5851, bears some relationship to the field of nuclear safety, its paramount purpose is the protection of employees. In this regard, it is noted that Congress entrusted enforcement and implementation of section 210 to the Department of Labor, not the Nuclear Regulatory Commission. English v. General Electric Co., __ U.S. __, 110 L.Ed.2d 65, 110 S.Ct. 2270 (1990).

I.A.2. Memorandum of understanding between NRC and DOL

Kansas Gas & Elec. Co. v. Brock, 780 F.2d 1505 (10th Cir. 1985), cert. denied, 478 U.S. 1011, 92 L.Ed.2d 724, 106 S. Ct. 3311 (1986).

The Court of Appeals addressed the possibility that complaints concerning employment discrimination could be intertwined with matters specifically concerning substantive questions of nuclear safety. For that reason it declared that jurisdiction over employment matters resides in the Secretary of Labor and the NRC is not free to accept jurisdiction concurrently or in its discretion. However, to safeguard the rights of all parties involved in such an employment proceeding, a memorandum of understanding was signed between the Department of Labor (DOL) and the Nuclear Regulatory Commission (NRC) concerning employee protection. See 47 Fed. Reg. 54585 (1982). This memo recognizes that each agency agrees to exchange information concerning any particular allegation. DOL is to investigate and conduct hearings on employee complaints and can order a violator to abate the violation. DOL is to notify the NRC of any complaint filed with DOL alleging discrimination under the ERA and of any hearings on a complaint. The NRC does not have direct authority to provide the employee with a remedy but the NRC may provide technical assistance to the Secretary pursuant to the memorandum.

I.B.1. Purpose of CAA, generally

The CAA seeks to prevent and control air pollution by regulating emissions into the atmosphere.

A purpose of the CAA air quality and emission limitations is "to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population." 42 U.S.C. § 7401(b)(1) (1988).

CAA regulations establish ambient

Ambient air is "that portion of the atmosphere, external to buildings, to which the general public has access." 40 C.F.R. § 50.1(e) (1991).

air quality standards for sulfur oxides, particulate matter, carbon monoxide, ozone, nitrogen dioxide, and lead. 40 C.F.R. Part 50 (1991). Hazardous air pollutants, including asbestos, also are regulated. 40 C.F.R. part 61 (1991).

Scerbo v. Consolidated Edison Co. of New York, Inc., 89-CAA-2 (Sec'y Nov. 13, 1992).

[Nuclear & Environmental Digest I B 1]
PURPOSES OF CAA AND TSCA

In Melendez v. Exxon Chemicals Americas, ARB No. 96-051, ALJ No. 1993-ERA-6 (ARB July 14, 2000), one member of the ARB reviewed the language of the CAA and the TSCA, and examined the relevant legislative history of the CAA and the TSCA, to provide guidance to the ALJ on remand as to what health and safety complaints may touch on concern for the environment and public health and safety that are the focus of these acts. The member noted that the CAA states that its purpose is "to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population." 42 U.S.C. §7401(b)(1) (1988), while the TSCA states that its primary purpose is to assure that technological innovation and commerce in hazardous "chemical substances and mixtures do not present an unreasonable risk of injury to health or the environment." 15 U.S.C. §2601(b)(3) (1988). The member wrote that "[t]o that end, the TSCA authorizes not only the control of chemical substances but also authorizes the development of data to provide a basis for evaluating the hazards posed by particular chemicals. The chemical risk assessments that are developed under the TSCA are also relied on by the EPA in determining the controls to be set on specific chemicals under the CAA. See 53 Fed. Reg. 51698, 51707 (1998) (EPA, 40 C.F.R. Part 704, final rule)." Slip op. at 18. For additional detail, see the slip op. at 18-23.

See also the Melendez casenote under XII D 1 B as to why TSCA record keeping requirements may implicate protected activity where a complainant is asking question about his or her personal exposure and health concerns.

[Nuclear & Environmental Digest I B 1]
WHISTLEBLOWER PROVISIONS ARE NOT INTENDED TO SHIELD EMPLOYEES FROM THE CONSEQUENCES OF THEIR OWN MISCONDUCT OR FAILURES

In Trimmer v. U.S. Dept. of Labor, No. 97-9544 (10th Cir. Apr. 6, 1999) (case below 93-CAA-9 and 93-ERA-5), the court in holding that Complainant could not use his whistleblower status to avoid the consequences of his inaction in seeking gainful alternate employment at Respondent's laboratory observed:

   Whistleblower provisions "are intended to promote a working environment in which employees are relatively free from the debilitating threat of employment reprisals for publicly asserting company violations of statutes protecting the environment." Passaic Valley Sewerage Comm'rs v. Department of Labor, 992 F.2d 474, 478 (3d Cir. 1993). They are not, however, intended to be used by employees to shield themselves from the consequences of their own misconduct or failures. See Kahn v. Secretary of Labor, 64 F.3d 271, 279 (7th Cir. 1995) (rejecting "[plaintiff's] attempt to hide behind his protected activity as a means to evade termination for non-discriminatory reasons").

I.B.2. Purpose of employee protection provisions

"'[W]histleblower' provisions [such as those covered under 29 C.F.R. Part 24] are intended to promote a working environment in which employees are relatively free from the debilitating threat of employment reprisals for publicly asserting company violations of statutes protecting the environment, such as the Clean Air Act and nuclear safety statutes." Passaic Valley Sewerage Commissioners v. United States Dept. of Labor, No. 92-3261 (3rd Cir. Apr. 16, 1993) (available at 1993 U.S. App. LEXIS 7906).

I B 2 Whistleblower protection is not from unreasonable or arbitrary actions; only actions taken in retaliation for protected activity

The ERA whistleblower provision does not protect workers from unreasonable or arbitrary actions on the part of an employer -- rather, it only protects workers from actions taken in retaliation for engaging in activities protected by the ERA. Collins v. Florida Power Corp., 91-ERA-47 and 49 (Sec'y May 15, 1995).

I.B.2. Purpose of employee protection provisions

"'[W]histleblower' provisions [such as those covered under 29 C.F.R. Part 24] are intended to promote a working environment in which employees are relatively free from the debilitating threat of employment reprisals for publicly asserting company violations of statutes protecting the environment, such as the Clean Air Act and nuclear safety statutes." Passaic Valley Sewerage Commissioners v. United States Dept. of Labor, No. 92-3261 (3rd Cir. Apr. 16, 1993) (available at 1993 U.S. App. LEXIS 7906).

I.B.2.a. Legislative history

Mackowiak v. University Nuclear Sys., Inc., 735 F.2d 1159 (9th Cir. 1984).

The whistle blower provision in the Energy Reorganization Act is modeled on, and serves an identical purpose to, the provision in the Mine Health and Safety Act. See S.Rep. No. 95-848, 95th Cong., 2d Sess. at 29, 1978 U.S.Code Cong. & Ad. News at 7303. These similar provisions share a broad, remedial purpose of protecting workers from retaliation based on their concerns for safety and quality.

I.B.2.b. Whistleblowing not directly concerned with safety standards

Whistle blowing is not directly concerned with safety standards, only the deviation from or the flouting of them. Norris v. Lumbermen's Mut. Casualty Co., 881 F2d 1144 (1st Cir. 1989).

I.B.2.b. Overview; Applicable Statutes; Energy Reorganization Act

While the Energy Reorganization Act of 1974, section 210, as amended, 42 U.S.C. § 5851, bears some relationship to the field of nuclear safety, its paramount purpose is the protection of employees. English v. General Electric Co., __ U.S. __, 110 L.Ed.2d 65, 110 S.Ct. 2270 (1990).

I.B.3.a. Regulatory scheme based in part on employee participation in enforcement

Rose v. Secretary of the Dept. of Labor, 800 F.2d 563 (6th Cir. 1986), appeal after remand Rose v. Dole, 945 F.2d 1331 (6th Cir. 1991).

Petitioner informed the Nuclear Regulatory Commission (NRC) investigators that when some equipment malfunctioned and a small amount of nuclear material escaped, an alarm had not sounded because it had been improperly installed. Petitioner's employment was terminated the day after Nuclear Fuel Services, the Employer, received notice of a penalty imposed by the NRC. (Concurring opinion) The complicated statutory and regulatory scheme enacted by Congress and Nuclear Regulatory Commission was designed to encourage employees to report unsafe practices in one of the most dangerous technologies mankind has invented but without the fear of retribution. Substantial employee involvement in the regulatory process was envisioned. Citing 47 Fed. Reg. 30453 (1982), the concurring opinion explained that the NRC cannot effectively fulfill its mandate without complete factual information concerning the regulated activities of its licensees of which employees are an important source.

[N/E Digest I B 3]
CONGRESSIONAL PURPOSE; TO PROTECT NUCLEAR INDUSTRY WORKERS FROM FEAR OF RETALIATION FOR SPEAKING OUT ABOUT POSSIBLE HAZARDS

In Stone & Webster Engineering Corp. v. Herman, 1997 U.S. App. LEXIS 16225, No. 95-6850 (11th Cir. July 2, 1997)(case below 93-ERA-44), the Eleventh Circuit discussed the purpose of the employee protection provision of the ERA in the context of a case arising out of a nuclear power plant that had a history of reactor fires. The court wrote:

Among the people best positioned to prevent fires are the workers who tend to nuclear plants. But if fear of retaliation kept workers from speaking out about possible hazards, nuclear safety would be jeopardized. To protect whistleblowers, Congress forbade employers from retaliating against employees who act in prescribed ways to ensure safety. 42 U.S.C. § 5851.

I.B.3.a. Purpose of statutes

The federal "whistleblower" statutes promote enforcement of environmental laws by protecting employees who aid the government enforcement agency. Willy v. Coastal Corp., 855 F.2d 1160 (5th Cir. 1988).