1 The amendments to the ERA
contained in the National Energy Policy Act of 1992, Pub. L. No. 102-486, 106 Stat. 2776 (Oct.
24, 1992), do not apply to this case in which the complaint was filed prior to the effective date of
the Act. For purposes of this case, I will continue to refer to the provision as codified in 1988.
2CL&P apparently does business
as Northeast Utilities, the company that owns and operates the Millstone Station.
3Delcore alleged that he
"had raised concerns about certain safety problems at the Millstone nuclear reactor to
supervisory employees of CL&P," that these problems constituted violations of NRC
regulations, that he was "terminated by..... Barney and CL&P, at the request of employees
of CL&P," and that Barney and CL&P "conspired and acted in concert to discharge
(him] for reporting a violation of federal regulations concerning nuclear power plants."
Stip., Exh. 5.
4 Items (2) through (5) applied to
activities which "ar[o]se out of, relate[d] to, and concerned" events that occurred
prior to execution of the settlement agreement, e.g., events occurring during Delcore's
tenure at the Millstone Station and the ensuing NRC investigation of his complaints.
5Such a statement made by
Delcore prior to January 1, 2004, would have constituted a "material breach" of the
settlement agreement relieving CL&P and Barney of any obligation under the agreement and
entitling them to recover either a specified percentage of Delcore's $15,000 or their actual
damages and attorney fees, whichever amount was greater.
6The restrictions on serving as a
witness also could be construed as an agreement to suppress evidence.
7 The Commission subsequently
concluded that any agreement which restricted an employee or former employee from
communicating about potential violations or other hazards was unacceptable because of its
chilling effect on nuclear safety and security. "Any such agreement under which a person
contracts to withhold safety significant information or testimony from the [NRC] could itself be
a threat to safety and therefore jeopardize the execution of the Agency's overall statutory
duties." 55 Fed. Reg. 10,398.
8Noting a congressional intent to
protect miners against both common and subtle forms of discrimination, the court commented
that "[a]n offer of reemployment conditioned on a miner's willingness to work under
dangerous conditions of which a miner has previously complained surely qualifies as a more
subtle form of discrimination." 888 F.2d at 1452.
9Courts also have held that
employers violate the employee protection provision of the Fair Labor Standards Act of 1938
(FLSA), 29 U.S.C. § 215(a)(3)(1988), by retaliating against employees who insist upon or
refuse to repudiate their right to compensation in accordance with that Act. Brock v. Casey
TruckSales, Inc., 839 F.2d 872, 879 (2d Cir. 1988)("[p]rotection against
discrimination for instituting FLSA proceedings would be worthless if an employee could be
fired for declining to give up the benefits he is due under the Act"); Brock v. Norman's
CountryMarket, Inc., 835 F.2d 823, 829 (11th Cir. 1988); Marshall v.Parking Co. of America-Denver, Inc., 670 F.2d 141, 143 (10th Cir. 1982).
10In Mullins, the mine
operator offered to reemploy the complainant after illegally discharging him. Here, Respondents
offered Delcore a monetary settlement of illegal discharge claims.
11The "voluntary"
aspect of settlements notwithstanding, Respondents previously had decided to initiate settlement
negotiations and thereafter extended an offer which Delcore did not accept. While Respondents
otherwise would not be obligated to continue negotiating, Section 210 mandates that, like any
other employment decision, their decision to abandon negotiations not be grounded on an illegal
motivation, e.g., Delcore's protected activity.