DATE:  June 3, 1994
CASE NOS. 89-ERA-7
          89-ERA-17


IN THE MATTER OF

THOMAS J. SAPORITO, JR.

          COMPLAINANT,

     v.

FLORIDA POWER AND LIGHT COMPANY,

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                         DECISION AND REMAND ORDER

     An employee who refuses to reveal his safety concerns to
management and asserts his right to bypass the "chain of command"
to speak directly with the Nuclear Regulatory Commission is
protected under the employee protection provision of the Energy
Reorganization Act of 1974, as amended (ERA), 42 U.S.C. §
5851 (1988).  Covered employers who discipline or discharge an
employee for such conduct have violated the ERA.
     The Administrative Law Judge (ALJ) recommend.  I find,
however, that one of those acts clearly was protected under the ERA,
for the reason stated above, and the others may have had protected
aspects.  Therefore, I am remanding this case to the ALJ to review
the record and submit a new recommendation on whether Saporito
would have been fired for legitimate reasons even if he had not engaged
in protected activity. 
     The ALJ set forth the facts in considerable detail in his
Recommended Decision and Order Denying Complaint (R. D. and O.). 

[PAGE 2]
R. D. and O. at 4-14.  Saporito worked for FP&L from 1982 to
December 22, 1988 in various positions at several of its power
plants.  His last job was as an Instrument and Controls
Specialist at FP&L's Turkey Point nuclear power plant in Dade
County, Florida from April 23, 1988 until his discharge. 
Id. at 4.
     Saporito made numerous complaints about FP&L's failure to
follow established procedures at its Turkey Point plant in
letters to the Nuclear Regulatory Commission (NRC), the
Department of Labor and a private nuclear power industry
organization, the Institute of Nuclear Power Operations.  R. D.
and O. at 4; T. (Transcript of hearing) 1967.  Complainant
alleged in his first complaint in this case, Case No. 89-ERA-7,
that FP&L disciplined and harassed him for making these
complaints, and in his second complaint, Case No. 89-ERA-17, that
FP&L discharged him in retaliation for protected activity.
     FP&L discharged Saporito on December 22, 1988 for three
stated reasons, "refus[al] to cooperate when directed by the Site
Vice President [John Odom] to provide information regarding
activities at Turkey Point that you alleged could potentially
affect the health and safety of the public," refusal to "hold
over [1]  for a meeting with the Site Vice President," and
"refus[al] to be examined" by a company doctor.  FP&L Report of
Discipline, R (Respondent's Exhibit)- 104.  FP&L accused Saporito
in the Report of Discipline of being "uncooperative and . . .
demonstrat[ing] an insubordinate attitude on a number of
occasions," and "discharge[d] [Saporito] for insubordination." 
Id.
     The record in this case has been reviewed and I agree with
the ALJ's conclusions on the allegations of retaliatory
discipline and harassment raised in Case No. 89-ERA-7, that these
alleged acts of discrimination were not "causally related to
[motivated by] [Saporito's] protected activity."  R. D. and O. at
16.  I do not agree with the ALJ, however, that "the reasons
given by Respondent for the discharge [of Saporito] are . . .
valid in the circumstances . . . ."  Id. at 18. [2] 
     In Pillow v. Bechtel, Case No. 87-ERA-35, Sec'y. Dec.
Jul. 19, 1993, slip op. at 22, involving an employee of a
contractor of FP&L at Turkey Point, the respondent chose the
complainant as one of three employees to be laid off for, among
other things, seeking help from the union with a safety problem
before first giving his supervisor a chance to resolve it. 
I explicitly held that "going around established channels
to bring a safety complaint [is] not a valid basis for [choosing
an employee] for layoff."  Id. at 23.  Cf. Pogue
v. United States Dep't of Labor, 940 F.2d 1287, 1290 n.2 (9th
Cir. 1991) (letter outside "chain of command" raising safety
complaints constituted 
[PAGE 3]
protected whistleblower activity).  Similarly, in Nichols v.
Bechtel Construction, Inc., Case No. 87-ERA-
0044, Sec'y. Dec. Oct. 26, 1992, slip op. at 17, [3]  the
Secretary held that "[u]nder the ERA, an employer may not, with
impunity, hold against an employee his going over his superior's
head, or failing to follow the chain of command, when the
employee raises a safety issue."
     Courts also have held that employees may not be disciplined
for protected speech because they have violated the chain of
command.  In Brockell v. Norton, 732 F.2d 664 (8th Cir.
1984), a police department employee's First Amendment rights were
violated when he was fired specifically because he reported
suspected cheating on police certification examinations to the
regional test administrator without first reporting it to the
chief of police and the mayor.  732 F.2d at 668.  See also
Czurlanis v. Albanese, 721 F.2d 98, 106 (3rd Cir. 1983);
Atcherson v. Siebenmann, 605 F.2d 1058, 1063 n.5 (8th Cir.
1979).
     When Saporito refused to reveal his safety concerns to 
Mr. Odom at the meeting of Nov. 23, 1988, and said he would only
tell them to the NRC, T. 1438J, he was insisting on his right to
bypass the chain of command in those circumstances.  FP&L asserts
that as the licensee responsible for nuclear safety at its power
plant, it has the right under the ERA to order an employee to
reveal his safety concerns directly to FP&L to determine if there
is an imminent threat to public health and safety.  T. 1438J-
1438K; Respondent's Reply Brief at 18 ("It is in the interest of
the public's health and safety . . . that immediate disclosure
occur.  A non-confidential informant's [4]  refusal to disclose
his nuclear safety concerns [to management] is not protected
activity under the ERA."); R. D. and O. at 18.
     I need not decide whether it is appropriate under the ERA to
balance Respondent's interests in immediate discovery of
potential threats to public health and safety against
Complainant's right to protection for reporting his safety
concerns outside the chain of command because I find FP&L's
rationale for requiring Saporito to reveal his safety concerns to
the Site Vice President disingenuous.  Saporito told Odom on 
November 23, 1988, when Odom gave him a "direct order" to tell
Odom his nuclear safety concerns, T. 1438I, that Saporito "would
only talk to the NRC."  T. 1438H.  Odom then ordered Saporito to
tell the NRC his nuclear safety concerns "at the first available
opportunity" and Saporito said he would.  T. 1438J; 907.  At that
point, FP&L knew that the NRC, the government agency responsible
for nuclear safety, would be notified and it was reasonable to
assume the NRC would notify FP&L immediately if there were an
imminent threat to public health or safety. [5]   I find that
FP&L violated the ERA when it later discharged Saporito, among
other 
[PAGE 4]
reasons, for refusing to obey Odom's order to reveal his safety
concerns.
     As grounds for dismissal, FP&L also cited Saporito's refusal
to stay after his regular work day on November 30, 1988 to attend
a meeting at which Odom again wanted to ask Saporito about his
safety concerns, R-104; T. 1445-46; 2024, and Saporito's refusal
to be examined by a company doctor.  Odom's decision to require
Saporito to be examined by a company doctor grew out of the
excuse Saporito gave on November 30 for refusing to stay late for
the meeting with Odom, that Saporito was ill, and Saporito's
reason for taking 12 days sick leave after November 30, that
Saporito was suffering from stress related medical problems.  
T. 1455.  Each of these reasons for discharge is related, at
least in part, to Saporito's refusal to reveal his safety
concerns to FP&L, an act I have held protected under the ERA. 
Accordingly, this case is REMANDED to the ALJ to review the
record in light of this decision and submit a new recommendation
to me on whether FP&L would have discharged Saporito for the
unprotected aspects of his conduct in these incidents.
     SO ORDERED




                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.





[ENDNOTES]
           
[1]   "Hold over" means staying at work beyond regular working
hours.

[2]   I note that the ALJ did not accurately set out the
allocation of burdens of proof and burdens of production in
whistleblower cases.  See R. D. and O. at 15.  The burden
which shifts to the Respondent after the Complainant has
established a prima facie case is one of production or
going forward with the evidence, not the burden of proof.  Only
after the Complainant has established by a preponderance of the
evidence that protected activity, at least in part, motivated a
Respondent's action, and the fact finder has concluded that the
Respondent's articulated legitimate reasons for its action are
not pretextual, does the burden of proof or persuasion shift to
the Respondent to show by a preponderance of the evidence that it
would have taken the same action even if the Complainant had not
engaged in protected activity.  See Dartey v. Zack Co.
of Chicago, Case No. 82-ERA-2, Sec'y. Dec. Apr. 25, 1983,
slip op. at 7-9.

[3]   This case as well involved one of FP&L's contractors at the
Turkey Point plant.

[4]  FP&L suggests that there is a distinction between
confidential and non-confidential informants, i.e., that an
employer only could require a non-confidential informant to
reveal his safety concerns because doing so would not compromise
the informant's confidentiality.  Careful consideration of the
impact of confidentiality on the employer's right to give such an
order shows the difficulty with FP&L's position.

     To begin with, the issue would never arise in the case of a
truly confidential informant because the employer would not know
who he was in the first place.  The employer may suspect, based
on rumor or workplace gossip, that a particular employee has
safety concerns, but the employee may believe his conversations
with the NRC were confidential and he remains anonymous.
See, e.g., 10 C.F.R. § 19.16 (1992) (The name
of any worker who requests an inspection "shall not appear in
[the] copy [of the request provided to the licensee] or on any
record published, released or made available by the [NRC] . . .
.")  The employee may refuse to reveal his safety concerns when
ordered because he may believe it would compromise his
confidentiality, or the employee may deny he has any concerns. 
To hold that the employer may order the employee to reveal his
concerns puts the employee in the position of either revealing
his concerns and compromising his confidential contact with the
NRC or being fired for insubordination.

[5]   Indeed, Odom called the NRC on Nov. 30, 1988 and was told
that none of Saporito's concerns had any immediate safety
implications.  T. 1563