DATE:  August 3, 1993
CASE NO. 86-ERA-26


IN THE MATTER OF 

MARVIN VAN BECK,

          COMPLAINANT,

     v.  

DANIEL CONSTRUCTION COMPANY,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                       DECISION AND ORDER OF REMAND

     Before me for review is the Recommended Decision and Order 
(R.D. and 0.) of the Administrative Law Judge (ALJ) issued on
September 17, 1986, in this case arising under the employee
protection provision of the Energy Reorganization Act of 1974, as
amended (ERA), 42 U.S.C. § 5851 (1982).  The ALJ concluded
that Complainant was discharged in retaliation for a protected
refusal to work in violation of the whistleblower protection
provision of the ERA, and recommended reinstatement with back
pay, attorney fees and costs.  The ALJ subsequently issued a
Decision Recommending Award of Attorney Fees, dated January 16,
1987.  Both parties filed briefs before the Secretary.
                             BACKGROUND
     This case arises from a timely complaint against Daniel
Construction Company (Respondent), filed on February 13, 1986,
with the Employment Standards Administration, Wage and Hour
Division, of the U.S. Department of Labor.  See  CX 1;
ALJ's R.D. and O. at 10.  Complainant alleged that he was
wrongfully discharged by Respondent because of a protected
refusal to work under the ERA.  Based on the testimony and
evidence proffered at 
[PAGE 2]
the hearing, the ALJ concluded that Complainant's discharge was
in violation of the ERA.  Accordingly, the ALJ recommended that
Complainant be reinstated to his former position with Respondent
or to a comparable position.  In addition, the ALJ found
Complainant entitled to protection against "blacklisting," and
ordered the deletion of any adverse references from his records,
as well as the payment of back pay, attorney fees and costs
incurred by Complainant.  
     The ALJ's comprehensive factual findings are fully supported
by the record and adopted herein.  See ALJ's R.D.and O. at
2, 3-10.  As the ALJ found, Complainant was employed by Respondent
as an electrical raceways inspector (ERI) during the construction
of the Shearon Harris Nuclear Power Plant in North Carolina.  He
was discharged from his ERA position on January 21, 1986, when he
refused to accept a work assignment to perform inspections inside
the Reactor Containment Building (RCB) during a testing phase,
called Hot Functional Testing (HFT).  It is undisputed that
Complainant's refusal to work was based on his genuine concerns
about the safety of working in the RCB during HFT, specifically
the threat of pipe ruptures or leaks of super heated and
pressurized steam.  
                             DISCUSSION
     Upon careful review of the record, including the submissions
of the parties, the pertinent case law, and the legislative
history of the ERA and other statutes with similar employee
protection provisions, I find that the ALJ's R.D. and O. is
reasonable and supported by law.  Accordingly, I accept the ALJ's
conclusions as supplemented and modified herein, and the ALJ's
R.D. and O. is attached hereto.
     The Secretary has addressed the issue of whether an
employee's refusal to work is protected under the ERA. 
See  Sartain v. Bechtel Constructors Corporation,
Case No. 87-ERA-37, Sec. Final Dec. and Order, Feb. 22, 1991,
slip op. at 7-17;  Wilson v. Bechtel Construction, Inc.,
Case No. 86-ERA-34, Sec. Dec., Feb. 9, 1988, slip op. at 9-11; 
Smith v. Catalytic, Inc., Case No. 86-ERA-13, Sec. Dec.
and Remand Order, May 28, 1986, slip op. at 3;  Pensyl v.
Catalytic, Inc., Case No. 83-ERA-2, Sec. Dec., January 13,
1984, slip op. at 6-7.  In these decisions, the Secretary held
that a refusal to work is protected under the ERA when
          A worker . . . has a good faith, reasonable
          belief that working conditions are unsafe 
          or unhealthful.  Whether the belief is
          reasonable depends on the knowledge available
          to a reasonable man in the circumstances with
          the employee's training and experience . . .
          Refusal to work loses its protection after 
[PAGE 3]
          the perceived hazard has been investigated by responsible
          management officials . . . and, if found safe, adequately
          explained to the employee.
Pensyl, slip op. at 6-7.
     In the instant case, the record supports the ALJ's
conclusions that:  (1) Complainant's refusal to work in the RCB
during HFT was reasonable in the surrounding circumstances; and
(2) Respondent did not adequately explain the perceived hazard,
so as to render Complainant's refusal to work unprotected. 
Contrary to Respondent's arguments, actual safety is not the
relevant issue at this point.  Rather, the pertinent issues are
whether Complainant had a reasonable, good faith belief that
conditions were unsafe, and whether Respondent provided
sufficient information to dispel these concerns and adequately
explained the safety issues raised.  Sartain at 8-9.  
     The ALJ's discussion on these issues thoroughly evaluates
the relevant considerations in accordance with the Secretary's
prior decisions on protected refusals to work, and I accept his
conclusions.  Additionally, I note that the evidence submitted by
Respondent to support their claims as to the actual safety of the
RCB during HFT, indicates that Respondent had sufficient
information in their possession to adequately explain perceived
safety concerns to their employees.
     In reaching this conclusion, I reject Respondent's argument
that ERA jurisdiction does not extend to protect employee
refusals to work in factual situations such as in the instant
case, where the safety concern is not a nuclear hazard. 
Respondent contends that the Secretary should decline to extend
ERA jurisdiction to the instant case, arguing that the
Occupational Safety and Health Act (OSHA), 29 U.S.C. § 651
et seq. (1982), is the appropriate statute to cover
Complainant's concerns about workplace safety, which are
unrelated to violations of the ERA or the Atomic Energy Act of
1954.  
     Addressing this issue, the ALJ concluded that in order for
jurisdiction to attach under Section 5851, a nexus must be
established between the alleged protected activity and the
objective or purpose of the ERA:  "A refusal which has not been
shown realistically to involve safety--immediately, ultimately,
or potentially--in the operation of a nuclear facility cannot
meet the requirements of Section 5851."  ALJ's R.D. and O. at 
11-12.  The ALJ found that such a nexus was established in this
case, based on the evidence and testimony that Complainant and
his co-workers expressed fears and anxiety over their ability to
adequately perform inspections in the RCB under the conditions
anticipated during HFT.  Consequently, the ALJ concluded that ERA
jurisdiction was appropriate here, because a sufficient link was
established between Complainant's reasonable refusal to work due 
[PAGE 4]
to safety concerns and the goal of the ERA to ensure adequate
inspections in the RCB.     
     Although this issue has not been specifically addressed in
the Secretary's prior decisions concerning protected refusals to
work under the ERA, the reasonableness of a complainant's non-
nuclear safety concern as the basis for a protected refusal to
work was considered in another ERA case.  See
Sartain v. Bechtel Constructors Corporation, Case
No. 87-ERA-37, Sec. Final Dec. and Order, Feb. 22, 1991.  In most
of the prior decisions of the Secretary concerning protected
refusals to work under Section 5851, the complaints involved
radiation risks associated with nuclear facilities. 
However, in Sartain, Complainant's refusal to work
was based on concerns about radioactive contamination as well as
the hazard of electrical shock.  In that decision, each of
Complainant's safety concerns was separately considered as 
potential protected refusals to work under the ERA, but both were 
determined not to have been reasonable concerns in the
circumstances.  The risk of electrical shock is a "non-nuclear
hazard," similar to the safety concern raised in the instant
case, but Complainant's refusal to work based on this safety
concern would have been protected if the necessary conditions had
been met. 
     Although the instant complaint involves non-nuclear hazards
present during the construction phase of a nuclear power plant,
there is sufficient evidence of record demonstrating that
employer's retaliatory discharge of Complainant had a potentially
substantial affect on nuclear safety.  The HFT performed in the
RCB did not involve nuclear fuel, but this systems testing phase
and the inspections to be performed by the ERIs inside the RCB
are essential to the eventual safe operation of the plant. 
Consequently, because Respondent's retaliatory action may
directly affect the radiological safety of nuclear plant
construction and operation, I hold that ERA jurisdiction is
appropriate.  
     The Supreme Court has recognized that although the ERA
regulates the field of nuclear safety, the paramount purpose of
the whistleblower protection provision of the ERA is the
protection of employees.  See English v. General
Electric Co., 496 U.S. 72, 110 S.Ct. 2270 (1990), at 9-10.  
Here, the evidence of record substantiates the ALJ's conclusions
that Complainant and other ERIs assigned to work in the RCB
during HFT were concerned about their ability to adequately
perform their work due to anxiety over perceived safety concerns. 
As discussed previously, these concerns were found reasonable
especially since the RCB had previously been designated off-
limits during HFT.  Additionally, Complainant's termination for
refusal to accept 
[PAGE 5]
this assignment because of his unalleviated concerns, would serve
as a disincentive to the other similarly situated ERIs to express
their concerns about an inability to properly do the work, or any
other safety concerns arising during the construction phase. 
Such a result would be inconsistent with the purposes of the ERA
whistleblower protection provision, to protect the workers
employed at nuclear facilities, and to protect the general public
from radiological hazards due to the unsafe construction or
operation of nuclear facilities. 
     My conclusions that Complainant had a reasonable belief that
conditions were unsafe, that Respondent did not sufficiently
explain the situation to alleviate his fears, and that this was a
protected refusal to work are consistent with the Secretary's
prior decisions on protected refusals to work under the ERA, and
it is necessary in these circumstances to ensure the
effectiveness of the whistleblower protection provision.  In
accordance with prior decisions, if Respondent was in full
compliance with the NRC regulations, and that fact as well as the
reasons for the change in procedures were adequately explained to
employees, the refusal to work would lose its protection under
the ERA at that point.   
     For all of the above reasons, I agree with the ALJ's finding
that Complainant was discriminatorily discharged under the ERA
and except as modified below, I agree with the ALJ's recommended
remedies.  
     Next, I must address the Respondent's alternative argument,
that Section 2 of the ALJ's ordered relief must be modified.  In
his order the ALJ recommended Complainant's reinstatement to his
former position, including that, "If ERI activity has been
completed, Daniels will employ Complainant at Shearon Harris in
another position within his capabilities and comparable in terms
of pay, privileges and benefits."  ALJ's R.D. and O. at 14.  
Respondent argues that this remedy exceeds the boundaries of
Section 5851, and effectively provides Complainant with permanent
employment, whereas his employment as a construction worker for a
contractor hired during the construction of the nuclear plant
would have ended with completion of plant construction.  I agree
with Respondent's position in this respect and find that
reinstatement is not an appropriate remedy under the
circumstances of this case.  See generally
Blackburn v. Metric Constructors, Inc., Case No. 86-ERA-4,
Sec. Dec. and Ord. on Damages and Attorney Fees and Remand on
Attorney Fees, Oct. 30, 1991, slip op. at
20.  The Secretary has adopted
for ERA cases the "long accepted rule of remedies in labor law
that the period of an employer's liability ends when the
employee's employment would have ended for reasons independent of
the violation found."  See Blackburn at 4;
Francis v. Bogan, Case No. 86-ERA-8, Sec. 
[PAGE 6]
Final Dec., April 1, 1988, slip op. at 6.  Accordingly, I modify
the ALJ's order by deleting the requirement that Respondent
reinstate or rehire Complainant for a comparable position at
Shearon Harris.
     Additionally, I must modify the ALJ's order as to the
computation of back pay and the method of calculating interest on
the back pay award, once determined.  I agree with the ALJ's
finding that Complainant is entitled to back pay from the date of
his termination, January 21, 1986.  It is unclear on this record
however, on what date Respondent's backpay liability ceases.  It
appears that in this case Complainant would be entitled to back
pay only until the end of the construction project for which he
was hired, or until all ERI positions were abolished. [1]  
See generally Blake v. Hatfield Electric
Co., Case No. 87-ERA-4, Sec. Dec. and Remand Ord., Jan. 22,
1992, slip op. at 14-15; Blackburn at 4; Francis at
6.  This record, however, does not contain evidence of the date
when Complainant would otherwise have been terminated from this
position.  Accordingly, I remand this case for calculation of the
appropriate back pay award with interest, including overtime,
less interim earnings.  Moreover, contrary to the ALJ's order,
the interest should be calculated at the rate specified in
Section 6621 of the Internal Revenue Code, 26 U.S.C. § 6621
(1988).  In all other respects, I adopt the ALJ's order of
remedies.
     On remand, the ALJ shall address the back pay issue
identified here, and any additional issues affecting the
calculation of back pay and the interest thereon, in light of the
Secretary's prior decisions discussing damages in whistleblower
cases.  See e.g. Adams v. Coastal Production
Operators, Inc., Case No. 89-ERA-3, Sec. Dec. and Ord. of
Remand, Aug. 5, 1992; Blackburn at 11-14; Wells v.
Kansas Gas & Electric Co., Case No. 85-ERA-22, Sec. Dec.,
March 21, 1991, slip op. at 17, appeal dismissed, No. 91-9526
(10th Cir. Aug. 23, 1991).
 Finally, with respect to the ALJ's findings in his 
January 16, 1987, Decision Recommending Award of Attorney Fees,
the parties will be afforded an opportunity to submit briefs on 
the attorney fee issue in light of this decision on the merits. [2]

Additionally, Complainant is entitled to request additional fees
and costs relating to my review of this matter, see 42
U.S.C. § 5851(b)(2)(B).  See generally Lederhaus
v. Paschen and Midwest Inspection Service, Ltd., Case
No. 91-ERA-13, Sec. Dec. and Ord., Oct. 26, 1992, slip op. at 15-
16.
                               ORDER
     1.  This case is remanded to the ALJ for calculation of the
back pay with interest thereon to be paid to Complainant.   
     2.  Within 20 days of receipt of this order Complainant may
submit a supplemental application for attorneys fees and costs 
[PAGE 7]
reasonably incurred in connection with my review of the ALJ's
recommeded decision.  A service sheet showing service on the
Respondent must accompany the application.  If no further fee
application will be filed, Complainant shall provide notice to me
to that effect and to Respondent within 20 days of receipt of
this order.  Within 20 days of receipt of such application or
notice Respondent may file any responses to Complainant's
original and supplemental applicaitons for fees and the ALJ's
Decision Recommending Attorney Fee Award.
     SO ORDERED.



                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.



[ENDNOTES]
           
[1]   The purpose of a back pay award is to make the employee
whole, that is to restore the employee to the same position he
would have been in if not discriminated against.  See
Blackburn at 11, and the cases cited therein.

[2]   I note that the parties have not submitted briefs in
support of or in opposition to the ALJ's Decision Recommending
Award of Attorney Fees, dated January 16, 1987.  By letter dated 
January 27, 1987, Respondent's attorney requested that the
Secretary not consider the attorney fee recommendation until a
decision on the merits was reached.