U.S. DEPARTMENT OF LABOR
                           SECRETARY OF LABOR
                            WASHINGTON, D.C.



DATE: December 16, 1993
CASE NO. 87-ERA-13

IN THE MATTER OF

ALESSIO J. DECRESCI, JR.
          COMPLAINANT

     v.

LUKENS STEEL COMPANY,
          RESPONDENT.

BEFORE:   THE SECRETARY OF LABOR


                        FINAL DECISION AND ORDER

    When Lukens Steel lost its government contract for the
construction of sonarspheres for nuclear submarines in 1986, it
laid off Mr. DeCresci from his job as a weld inspector and Mr.
DeCresci filed a complaint under the employee protection
provision of the Energy Reorganization Act of 1974, as amended
(ERA), 42 U.S.C. § 5851 (1988), alleging he was laid off for
protected activities.  Although I do not agree with the
Administrative Law Judge (ALJ) that the type of internal
complaints made by Mr. Decresci are covered by the ERA, the
record in this case has been reviewed and I agree with the ALJ's
conclusion that Mr. DeCresci did not carry his burden of proving
that his layoff was motivated by retaliation.

     Mr. DeCresci was hired as a weld inspector in April 1986 and
received a layoff notice on November 6, 1986, effective November
8, 1986.  ALJ Recommended Decision and Order (R.  D. and 0.) at
2; Complainant's Exhibits (C)-3, 20.  In 1986, 90-95% of the work
in Lukens' welding department related to production of
sonarspheres for the Navy, T. (Transcript of hearing) 122, but
the contract for production of the next group of sonarspheres was

[PAGE 2]
awarded to another company during the summer of 1986.  T. 123;
125.  Lukens decided to lay off two welding inspectors in
November 1986, T. 128, and by the end of 1987 the entire welded
products division had been dissolved.  T. 131.  Only one welding
inspector with high seniority obtained employment in another
division of Lukens.  T. 132.  Mr. DeCresci was next to last on
the seniority roster of welding inspectors when he and the
inspector with the lowest seniority were laid off.  Respondent's
Exhibit (R) -1.

     During the course of his employment, Mr. DeCresci raised a
number of questions about welding procedures and rejected a
number of welds on the sonarspheres as not meeting applicable
standards.  T. 39; 43; 50; 52-60.  Lukens was licensed by the
Nuclear Regulatory Commission to conduct x-ray or radiographic
inspections of welds, C-29, but none of its other activities in
the construction of the sonarspheres was regulated by the NRC,
and Mr. DeCresci did not perform radiographic weld inspections at
Lukens.  T. 153.

 The ALJ held that because Lukens is licensed by the NRC, all of
its employment actions are covered by the ERA, whether or not
they allegedly were motivated by an employee's complaints about
practices and procedures covered by the license.  R. D. and 0. 3-
4.[1]  In this case, the ALJ held Mr. Decresci's rejection
of a number of welds on sonarspheres under construction were
internal complaints protected by the ERA under Mackowiak v.
University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir.
1984), even though neither the welds nor the sonarspheres were
related in any way to activities regulated by the Energy
Reorganization Act.  I reject the ALJ's interpretation of the
statute.

 The ERA provides that no covered employer may discharge or
otherwise discriminate against any employee "because" the
employee . . . commenced a proceeding (under the ERA) . . .
testified . . . in any such proceeding or . . . assisted or
participated in an manner in such a proceeding." 42 U.S.C. §
5851(a) (emphasis added).  The Secretary has consistently held
that internal complaints related to nuclear safety are protected
by the ERA and with one exception the courts have upheld that
interpretation. See  Goldstein v. Ebasco Constructors.,
Inc., Case No. 86-ERA-36, Sec'y. Dec. Apr. 7, 1992, and cases
discussed therein at 5-10, rev'd sub nom. Ebasco
Constructors, Inc. v. Martin, No. 92-4576 (5th Cir. Feb. 19,
1993) (per curiam).  A complainant in a whistleblower case under
the ERA has the burden of proving that he engaged in protected
activity and that an adverse action was taken against him
motivated at least in part 
[PAGE 3]
by that protected activity. Dartey v. Zack Co, of Chicago,
Case No. 82-ERA-2 Sec'y. Dec. Apr. 25, 1983, Slip op at 6-9.

 But the language of the statute and the Secretary's decisions
make it clear that not every act of whistleblowing is protected
under the ERA simply because the employer holds a license from
the NRC.  For example, an employee may complain that a government
contractor such as Lukens retaliated against him for reporting
that his employer has not complied with the requirements of
Executive Order 11,246 which prohibits race and sex
discrimination in employment, but his recourse would be to file a
complaint with the Office of Federal Contract Compliance Programs
under the Executive Order and its implementing regulations, 41
C.F.R. § 60-1.32 (1992), not a complaint under the ERA.  A
Complainant under the ERA must prove that retaliatory action was
taken against him because he engaged in the conduct listed in 42
U.S.C. § 5851(a)(1) , (2) or (3), which the Secretary has
interpreted broadly to mean any action or activity related to
nuclear safety.

 A similar question arose in Aurich v Consolidated Edison Co
of N.Y., Inc., Case No. 86-CAA-2, Sec'y.  Dec.  Apr. 23,
1987, in which the Complainant alleged he had been fired for
complaining about the manner in which Con Ed handled asbestos in
the workplace.  The Secretary held that a complaint that an
employer handled asbestos in a manner which violated
Environmental Protection Agency regulations on release of
asbestos into the surrounding air would be covered by the
whistleblower provisions
of the Clean Air Act (CAA), 42 U.S.C. § 7622(a).  But if the
safety complaints were limited to airborne asbestos as an
occupational hazard, they would not be covered by the CAA
employee protection provision. Aurich v. Consolidated
Edison, slip op at 3-4.

 An analogous question arose under the federal employee
Whistleblower Protection Act of 1989 (WPA), Pub. L. No. 101-12,
103 Stat. 16 (codified at scattered sections of Title 5, United
States Code) in Ellison v. Merit Systems Protection Board,
No. 92-3057, 1993 U.S. App. LEXIS 27786 (Fed. Cir. Oct. 26,
1993).  An employee may not seek corrective action directly from
the Merit Systems Protection Board, the court held, under the
individual right of action established by 5 U.S.C. § 1221
(Supp IV 1992) by alleging nonselection for a job motivated by
his having filed a grievance over his previous nonselection
unless his earlier grievance disclosed "the type of fraud, waste
or abuse that the WPA was intended to reach." Id., at *12.


[PAGE 4]
 Whistleblowers are protected under the ERA to further the
Congressional purpose of the Act of protecting the public from
the hazards of nuclear power and radioactive materials.  By
protecting whistleblowers "safety and quality problem in [the
nuclear industry] will continue to the brought to light and
resolved before accidents or injury occur." Hill and Ottney
v. Tennessee Valley Authority, Case Nos. 87-ERA-23,
24, Sec'y.  Dec.  May 24, 1989, slip op. at 9-10.  Mr. DeCresci's
complaints here rejecting welds on and reporting failure to
follow proper procedures in the construction of sonarspheres,
were not related to nuclear or radiation safety, were not covered
by the ERA.

 Even if Mr. DeCresci's complaints were covered by the ERA[2] ,
the record fully supports the ALJ's conclusion that Lukens laid
off Mr. Decresci for economic reasons when it lost the Navy
contract for construction of sonarspheres and Mr. DeCresci did
not carry his burden of proving that his lay off was motivated in
any way by his internal reports on the quality of construction of
the sonarspheres.

 Accordingly, the complaint in this case is DISMISSED.

     SO ORDERED

                                   ROBERT B. REICH
                                   Secretary of Labor

Washington, D.C.






[ENDNOTES]
              
[1]   The ALJ appears to have confused the concepts of adverse
action and discrimination.  He held that "the act of discharge is
discriminatory." R. D. and 0. at 4. Discharge alone is an adverse
employment action, but without proof of retaliatory motive it is
not an act of discrimination prohibited by the ERA.

[2]   When he was first hired, Mr. DeCresci complained that he
was given another employee's radiation dosage badge.  It was not
clear from his complaint to the Department of Labor, however,
that he claimed this incident was a motivating factor in his
layoff. See ALJ Exhibit 1.