1 Section 211(a), 42 U.S.C.
§5851(a), provides in relevant part:
(1) No employer may discharge any employee or otherwise discriminate
against any employee with respect to his compensation, terms, conditions,
or privileges of employment because the employee . . .
(A) notified his employer of an alleged violation of this Act or the Atomic
Energy Act of 1954 (42 U.S.C. 2011 et seq.);
* * *
2 We will refer to Fields, Weiss,
and Stewart collectively as "Complainants."
Subsection (a) of this section shall not apply with respect to any employee
who, acting without direction from his or her employer (or the employer's
agent), deliberately causes a violation of any requirement of this chapter
[the ERA] or of the Atomic Energy Act of 1954. . . .
42 U.S.C. §5851(g). Section 211(g) provides an affirmative defense on which the
respondent bears the burden of proof. See James v. Ketchikan Pulp Co., Case No. 94-WPC-4, Sec. Final Dec. and Ord., Mar. 15, 1996, slip op. at 6 (stating that the respondent did
not show by a preponderance of evidence that the complainant deliberately caused a violation).
4 Since the recommendation to
dismiss this case was made on summary grounds and determination of disputed factual issues is
not necessary to render this decision, we do not make any factual findings.
5 Reference is to the complaint
filed by Fields. Weiss and Stewart filed shorter complaints that incorporated Fields' lengthier
complaint and attachments.
6 "CX" refers to
Complainants' exhibits attached to the Complaint and to their opposition to the motion for
summary decision; "RX" refers to Respondent's exhibits attached to its motion.
7 CR-3 Annunciator Response
procedure AR-403 requires operators to reduce pressure to within acceptable limits upon receipt
of an alarm. CX 10.
8 Prior to the meetings with NRC-OI staff, Fields told Weiss that he would not mention the September 4 evolution unless NRC-OI
investigators asked him about it. Fields Dep. at 260; Weiss Dep. at 263. Complainants attribute
this reticence to the advice of FPC counsel not to volunteer information to the NRC. C. at 47;
Weiss Dep. at 263.
9 The NRC determined that the
Complainants' "conduct of unauthorized tests of MUT over pressure without preparation of
the required written safety evaluations" violated 10 C.F.R. §50.59. C. Ex. 58,
Enclosure 1 at 2. The NRC promulgated the regulations at 10 C.F.R. Part 50 pursuant to the
Atomic Energy Act and the ERA. 10 C.F.R. §50.1. Therefore, we deem a violation of
these regulations to constitute a violation of the Atomic Energy Act and the ERA.
10 The Clean Air Act's
nearly identical defense states:
Subsection (a) of this section shall not apply with respect to any employee
who, acting without direction from his employer (or the employer's agent),
deliberately causes a violation of any requirement of this chapter.
42 U.S.C. §7622(g).
11 There is nearly identical
language in the NRC's letters to Weiss, RX 61, and Stewart, RX 62.
12 We adopt the ALJ's
rejection of the argument that Weiss and Stewart acted with direction of their employer because
they were following the direction of Fields, their superior. R. D. and O. at 16-18.
13 Complainants refer to
only a portion of the NRC's definition, however. The definition also includes "an
intentional act or omission that the person knows . . . (2) Constitutes a violation of a requirement,
procedure, instruction, contract, purchase order, or policy of a licensee, applicant, contractor, or
subcontractor." 10 C.F.R. §50.5(c). On two occasions when Complainants
intentionally forced the MUT hydrogen pressure to the point that it triggered the annunciator alarm
and allowed the alarm to remain on for some 35 to 43 minutes, they engaged in an intentional act
that violated FPC's procedures and instructions. Thus, if we were to adopt the NRC's definition,
as Complainants suggest, we would find that they engaged in deliberate misconduct as defined by
the NRC regulation.
14 The ALJ stated that he
derived the three part test from the Secretary's analysis in Jackson and Roskam v. Ketchikan
Pulp Co, Case Nos. 93-WPC-007 and 93-WPC-008, Sec. Final Dec. and Ord., Mar. 4,
1996. See R. D. and O. at 15-16. In Jackson and Roskam the Secretary
made no analysis of the analogous "deliberately causes a violation" language in the
Federal Water Pollution Control Act (WPCA). The Secretary's entire discussion of the issue was
contained in one sentence: "For purposes of my review of the ALJ's decision on the merits,
I have assumed, without deciding, that Jackson's attempt to dispose of a cable into the water did
not exclude him from protection under the WPCA. 33 U.S.C. §1367(d)."
Jackson and Roskam, slip op. 5 n.3.
15 The Acting Assistant
Secretary "offered no opinion as to whether the complainants here willfully violated a
nuclear safety requirement." Asst. Sec. Br. at 4 n.4.
16 After the
English decision, Congress amended the ERA in the Comprehensive National Energy
Policy Act of 1992, Pub. L. No. 102-86, 106 Stat. 2776. The amendment renumbered former
§210 as §211.
17James arose
under the WPCA, which contains a provision nearly identical to Section 211(g). See
33 U.S.C. §3367(d).