We have jurisdiction to review the ALJ's recommended decision and to issue the final agency order in this case pursuant to 29 C.F.R. §24.8. Our standard of review is de novo. 42 U.S.C.A. §5851(b)(2)(A); 5 U.S.C.A. §557(b) (West 1996).

I. Facts

   Stanley Smith is a security firm providing security guard services to the Indiana & Michigan Power Company (I&M) at its D.C. Cook Nuclear Power Plant (Cook Plant) in Bridgman, Michigan. Phillips was employed by Stanley Smith as an armed security guard at the facility from December 6, 1991, until his discharge on May 3, 1995.

   Prior to the spring of 1995, all Stanley Smith security officers guarding the Cook Plant were armed. However, on March 15, 1995, Lowell Wilds, Stanley Smith's Director of Nuclear Security, informed security personnel by memorandum that the firm was working with Cook Plant management to establish a new security force configuration. The restructuring plan called for the creation of a team, comprised of skilled tactical response officers (TRO), which would defend the core areas of the plant. On the other hand, guards patrolling the perimeter of the Plant would be unarmed. This approach was advocated within the nuclear industry generally, and the plan for the I&M plant was authorized by and designed in conjunction with the NRC.

   The NRC tentatively approved the plan for restructuring the security force on March 31. On April 7, 1995, Stanley Smith Site Manager Al Hemerling held a meeting to inform security personnel of the contemplated restructuring plan. The plant's security officers, including Phillips, were in attendance, as well as Wilds, Stanley Smith Executive Vice-President Randy Dorn, and Walt Hodge, I&M Superintendent for Security at the Cook Plant.

   As explained in a memorandum distributed at the April 7 general meeting:

    The current focus is for an increased level of response capability by a skilled tactical response force and an unarmed force for the more routine plant protection tasks not requiring weapons qualification . . . .

Recent changes to the Cook Plant Security plan and procedures provide for the use of both armed and unarmed personnel for protection of the plant. The armed response force may consist of either a skilled tactical response team or the current Appendix B level of armed officers. This restructuring will allow for continuing employment for those personnel who no longer desire to maintain their armed qualification or are unable to meet the increasing requirements of the armed response position.

* * * * *

We understand that this restructuring change will have an impact on many of our employees. However, in today's environment, to remain competitive, we must offer our client the most cost effective service possible. In addition, we must be able to meet all of the requirements set forth by the client. We recognize that this period of restructuring will be a trying time for all of us.

If you are interested in making application to the new TRO position, a letter of application/interest shall be submitted to the Stanley Smith Office no later than April 15, 1995.

Respondent's Exhibit (RX) 10 at 1, 5.

   Phillips testified that at the April 7 meeting he voiced opposition to the reduction in the number of armed guards, citing the danger to the surrounding community if security were breached, but Hemerling did not respond to these concerns. However, Hemerling and Wilds, whose testimony the ALJ specifically found to be credible (RD&O at 17) "denied hearing any complaint regarding the safety of the plan from" Phillips. RD&O at 14. In fact Hemerling and Wilds testified that at the meeting Phillips only expressed concern that a guard's attendance record would be used in determining eligibility for the TRO position. Wilds added that although Phillips had expressed support for the new security program for some time prior to the meeting, Phillips' support wavered when he learned of the attendance criteria "that basically eliminated him [from eligibility for the TRO position] at that point in time."

   According to Phillips, on April 20, 1995, he was contacted by Luke Choate, a relative by marriage and television anchor at WSBT, Channel 22, in South Bend, Indiana, regarding the restructuring plan. After confirming that the plan provided for unarmed guards at the plant's perimeter, Phillips declined Choate's invitation to appear on television to discuss the plan for fear of jeopardizing his job. Instead, he suggested that Greg Peck, local plant guard union president, be contacted for further information. RD&O at 5.

   Peck was contacted by Channel 22 reporter Steve Barron and interviewed on the evening of April 24. According to Peck, he merely confirmed information that Barron already had, which included manpower numbers as well as the details of the restructuring plan. The news story about the restructuring plan ran that night and again the next day. In the news clip Peck confirmed that the proposed plan would result in a reduction in the number of armed security guards and expressed his concern that the plan would adversely affect the security of the plant. Id. at 5.

   The following morning, Stanley Smith assistant site manager Al White met with Phillips and notified Hemerling that Phillips was refusing to prepare a statement regarding his involvement with the broadcast. Hemerling then interviewed Phillips in the presence of his union representative. When Hemerling reminded Phillips that they had discussed the need for him to prepare a written statement the previous afternoon, Phillips denied having any such conversation with Hemerling. However, after further questioning, Phillips conceded that Hemerling had made such a request. Phillips continued to deny any involvement in the broadcast other than his contact with Choate, specifically denied that he had any conversation with "Steve" from Channel 22, and also denied that he had any contact with any other Channel 22 personnel, either by phone or fax. Although he initially continued to refuse to prepare a written statement, at the end of the meeting he complied. Phillip's written statement merely acknowledged affirmatively answering Choate's inquiry about "unarming security" and stated that he refused to appear on television with the story but suggested Peck instead.

   A second meeting was held with Phillips the next day, April 27. Hemerling, Wilds, and union representative Gary Anderson were present. At the meeting Phillips refused to sign a consent form stating that he would cooperate in the investigation of the disclosure of information to Channel 22 and declined to add anything to his written statement of the previous day.

   In the meantime, Peck was also interviewed at length about his involvement in disclosing information to Channel 22. In management's view, Peck cooperated with the investigation, readily providing a statement detailing the circumstances under which he had agreed to appear on the news broadcast.

   On the other hand, Peck's ten-day suspension was reduced to five days. He was not discharged because management believed that his role as local union president forced him into the public limelight; he had received approval to speak to the media from the union's international president; and, unlike Phillips, Peck had been cooperative and truthful about his involvement.

II. The ALJ's Recommended Decision

   The ALJ made several critical credibility determinations in reaching his conclusion that Phillips was not discharged in violation of the ERA whistleblower protection provision. First, the ALJ found Phillips to be a "less than credible witness, whose testimony was often contradictory and evasive." RD&O at 12. The ALJ continued:

[T]he Complainant impressed me as a person with a personal agenda who was more concerned about protecting his own position as an armed security guard than protecting the public because of his perceived safety concerns. In particular, I do not credit the Complainant's denials concerning the transmission of the e-mail message to the news media or that he had no contact with news reporter Steve Barron prior to his discharge. His testimony is directly contradicted by the testimony of Ms. Greer and Ms. Bennett, both of whom struck me as candid and forthright witnesses. The fact that Steve Barron was contacted by someone in the employ of the respondent and the fact that the television station had a copy of the e-mail that had been posted on the plant bulletin board is not disputed. Yet, there is nothing in the record that suggests that the information was furnished by some alternative source. In short, based on the evidence before me, the finger of suspicion points only to the Complainant.

RD&O at 12. Second, the ALJ explicitly found that Hemerling and Wilds, who were involved in the events leading up to -- and who recommended -- Phillips' termination, were credible witnesses. RD&O at 17.

   In order to prevail in an ERA whistleblower case such as the one before us, the complainant must prove by a preponderance of the evidence that he engaged in protected conduct, and that the employer took some adverse action against him because of that protected conduct. Carroll v. Bechtel Power Corp., Case No. 91-ERA-46, Sec. Fin. Dec. and Ord., February 15, 1995, slip op. at 11, n.9, aff'd Carroll v. Dept. of Labor, 78 F.3d 352 (8th Cir. 1996). We first discuss Phillips' claims of protected activity and then the question whether Stanley Smith retaliated against him in violation of the ERA.

   A. Protected Activity

   Phillips argues two bases for a finding of protected activity, internal complaints and media contact. We address each of these allegations in turn.

   1. Internal Complaints. Phillips contends that he made internal complaints at the April 7 restructuring plan meeting and thereafter with regard to the safety consequences of the plan. We conclude that Phillips did not make nuclear safety-related complaints about the restructuring plan at the April 7 meeting, and that even if he expressed such concerns to fellow officers and to low level supervisors thereafter, none of the Stanley Smith supervisors who were involved in his termination were aware of such complaints.

RD&O at 17. Moreover, both Hemerling and Wilds testified "that they received no safety complaints from the Complainant subsequent to this meeting nor were they made aware of any such complaint by any other person." Id. The ALJ explicitly credited the testimony of Hemerling and Wilds on both points, and concluded that "neither Mr. Hemerling nor Mr. Wilds knew of the Complainant's safety concerns when the decision to terminate him was made." Id.

   Although we review ALJ decisions under the ERA de novo, in conformity with the federal courts, we accord special weight to an ALJ's demeanor-based credibility determinations. See, KP&L Electrical Contractors, Inc., ARB Case No. 99- 039, ALJ Case No. 96-DBA-34, ARB Fin. Dec. and Ord., May 31, 2000, at 4 n.2; NLRB v. Cutting, Inc., 701 F.2d 659, 667 (7th Cir. 1983) (contrasting exceptional weight accorded to ALJ credibility findings that rest on demeanor with lesser weight accorded to credibility findings based on other aspects of testimony, such as internal discrepancies or witness self- interest). "One must attribute significant weight to an ALJ's findings based on demeanor because neither the Board nor the reviewing court has the opportunity similarly to observe the testifying witnesses." Kopack v. NLRB, 668 F.2d 946, 953 (7th Cir. 1982). Here the ALJ weighed the directly conflicting testimony of Hemerling and Wilds on the one hand and Phillips on the other, and implicitly found Phillips' version of his participation in the April 7 meeting incredible. We can find nothing in the record that would lead us to overturn that determination.

A. The TRO is a segment of the restructuring.

Q. Um-hum.

A. He would he asked me if they were going to be disarming security.

Q. Okay. And you told him yes?

A. Right.

Q. That was your reply?

A. Yes.

Q. Okay. And you didn't say anything else substantive to him?

A. No.

Q. You didn't express a safety concern to him then?

A. He asked me if I would go on the air with it, and I said, "No."

Q. Right. Did you express a safety concern about the operation of the plant to Mr. Choa[t]e in that phone conversation?

A. No.

Q. So you didn't raise a safety concern with Mr. Choa[t]e when he that's correct, right? * * * Those are correct statements?

A. Correct.

   Third, Hemerling and Wilds had every reason to think that Phillips had lied to them about his involvement and had, in Hemerling's words, "serious trustworthiness failures." RX 19 at 529. They had Greer's statement, and had no reason to disbelieve her account of her conversation with Phillips. Additionally, Phillips contradicted himself, and engaged in obvious falsehoods during the investigation. For example, although on the afternoon of April 25 Hemerling asked Phillips to write a statement regarding his involvement, on the morning of April 26 Phillips flatly denied that he had even had such a conversation. When confronted about this falsehood, Phillips reversed course and agreed that the conversation had taken place. Finally, Phillips even refused to sign a form stating that he would cooperate with Stanley Smith's investigation. Thus, Stanley Smith officials had ample reason to believe that Phillips was lying to them and obstructing their investigation into what they considered to be a serious breach of security.

• In order for safety concerns to be protected, they must be grounded in conditions constituting reasonably perceived violations of the ERA and/or the Atomic Energy Act (Id. at 21); and

• NRC's approval of the restructuring plan did not render concerns expressed about it unreasonable (Id. at 22-23).

However, as the ALJ correctly found, this case is not about Phillips' "raising security- related concerns," or raising concerns constituting reasonably perceived violations of the ERA; it is not about Phillips engaging in protected contacts with the news media. At bottom, the Dissenting Opinion stands for a proposition which we find to be wholly untenable: that a security officer at a nuclear power plant may, with complete abandon, disclose to the news media security-related information "related to manpower and weapons," then lie about those disclosures and obstruct the subsequent investigation into the disclosures, and find sanctuary in the ERA whistleblower provision.

   We conclude that Stanley Smith officials terminated Phillips' employment not because they believed that he had engaged in activity protected by the ERA, but because they believed that he had turned over security information to an unauthorized person to further his own personal interests, and then lied about it. Therefore, we conclude that Stanley Smith did not terminate Phillips for retaliatory reasons. Accordingly, we DISMISS the complaint.

   SO ORDERED.

       PAUL GREENBERG
       Chair

       CYNTHIA L. ATTWOOD
       Member

E. Cooper Brown, Member, dissenting:

   Respondent Stanley Smith Security cited the basis for its termination decision as being Complainant Phillips' participation in the disclosure of security-related information to members of the media in violation of company policy, which Respondent viewed as motivated out of a desire on Phillips' part to derail the security guard reorganization; aggravated by Phillips' refusal to cooperate in Respondent's subsequent investigation. See R. D. & O. at 7, 9.

   I am of the opinion that Phillips' disclosures to the media were protected activity under the Energy Reorganization Act, which cannot be discounted due to either his personal motive in releasing the information or his refusal to cooperate in Respondent's internal investigation. Moreover, I am of the opinion that Respondent terminated Phillips' employment in violation of the ERA whistleblower protection provisions. Thus, I dissent from the majority's opinion in this case.

   As the majority points out, there exists considerable disagreement between the parties about Phillips' involvement in the media coverage of the new security force configuration that was, at the time, being put into place at the Cook Nuclear Power Plant. However, for purposes of determining whether Respondent retaliated against Phillips for having engaged in activities protected under the ERA, this dispute is largely irrelevant.

confidential "safeguards" information), aff'd sub nom. Detroit Edison Co. v. Secretary of Labor, 960 F.2d 149 (6th Cir. 1992) (table); Yule v. Burns International Security Service, 93-ERA-12, Sec'y Final D. & O., slip op. at 3, n.6 (May 24, 1995) (complaint to supervisor regarding posting of unarmed security guard at nuclear plant); Creekmore v. ABB Power Systems Energy Services, Inc., 93-ERA-24, Dep. Sec'y D. & O. of Rem. (Feb. 14, 1996) (raising concerns regarding security violations); Boytin v. Pennsylvania Power & Light Co., 94-ERA-32, Sec'y D. & O. of Rem. (Oct. 20, 1995) (reporting security violations to NRC and subsequent participation in NRC investigation).

   The ERA's employee protection provision proscribes discharging or discriminating against an employee because he has, inter alia, "assisted or participated or is about to assist or participate . . . in any . . . action to carry out the purposes of this chapter or the Atomic Energy Act of 1954, as amended." 42 U.S.C. §5851(a)(1)(F). This provision, it has been recognized, was drafted broadly by Congress. Stone & Webster Engineering Corp. v. Herman, 115 F.3d 1568, 1575 (11th Cir. 1997). Accordingly, protection is not limited to an employee's internal complaint or participation in a formal "proceeding" under 42 U.S.C. §5851(a)(1), but has been held to also include employee contact with the media. See, e.g., Dobreuenaski v. Associated Universities, Inc., ALJ Case No. 96-ERA-44, ARB Case No. 97-125, slip op. at 9 (June 18, 1998); Rudd v. Westinghouse Hanford Co., ALJ Case No. 88-ERA-33, ARB Case No. 96-087, slip op. at 3-4 (Nov. 10, 1997); Trimmer v. L.A.N.L., ALJ Case Nos. 93-CAA-9 & 93-ERA-55, ARB Case No. 96-072, slip op. at 2-3 (May 8, 1997), aff'd sub nom. Trimmer v. U.S. Dept. of Labor, 174 F.3d 1098 (10th Cir. 1999); Carter v. Electrical District No. 2, 92-TSC-11, Sec'y D. & O. of Rem., slip op. at 12 (July 26, 1995); Floyd v. Arizona Public Service Co., 90-ERA-39, Sec'y D. & O. (Sept. 23, 1994). See also, Dias-Robainas v. Florida Power & Light Co., 92-ERA-10, Sec'y D. & O. of Rem. (Jan. 19, 1996) (employee's mere threat to take safety concerns to media considered protected). Cf. Crosby v. Hughes Aircraft Co., 85-TSC-2, Sec'y D. & O., slip op. at 23, n.15 (Aug. 17, 1993) (contacting news media not protected under analogous whistleblower provisions of TSCA only because the subject matter raised with media was not an environmental concern).

   Providing the media with information concerning perceived violations of the environmental whistleblower laws has been held to constitute protected activity because it is recognized as "tantamount to preliminary steps in a 'proceeding'" under such Acts "which could expose employer wrongdoing." Pooler v. Snohomish County Airport, 87-TSC-1, Sec'y D. & O., slip op. at 3 (Feb. 14, 1994). As the Secretary of Labor has explained, the whistleblower protection provisions are intended not only to protect an employee's commencement or participation in proceedings governed by the whistleblower laws, but also to "protect preliminary steps to commencing or participating in a proceeding, when those steps 'could result in exposure of employer wrongdoing.'" Helmstetter v. Pacific Gas & Electric, 91-TSC-1, Sec'y D. & O., slip op. at 3 (Jan. 13, 1993) (citing Poulos v. Ambassador Fuel Oil Co., 86-CAA-1, Sec'y D. & O. of Rem., slip op. at 3-4 (April 27, 1987)). Accord Donovan v. Andersen Construction Co., 552 F. Supp. 249, 251-253 (D. Kan. 1982) (employee communication to the media protected under analogous

provisions of OSHA, 42 U.S.C. §660(c), because it could result in institution of agency proceeding under Act).

   Respondent's perception that Complainant disclosed the security-related information out of a desire to derail the security guard reorganization for purely personal reasons is irrelevant to the question of whether Complainant engaged in protected activity. "[W]here the complainant has a reasonable belief that the respondent is violating the law, other motives he may have for engaging in protected activity are irrelevant." Diaz- Robainas v. Florida Power & Light Co., supra, slip op. at 15. Accord, Carter v. Electrical District No. 2, supra, slip op. at 10-11; Oliver v. Hydro-Vac Services, 91-SWD-01, Sec'y Dec., slip op. at 14 (Nov. 1, 1995).

   To be protected, Phillips' security concerns must be grounded in conditions constituting reasonably perceived violations of the ERA and/or the Atomic Energy Act. Jones v. EG & G Defense Materials, Inc., ALJ Case No. 95-CAA-3, ARB Case No. 97- 129, slip op. at 10-12 (Sept. 29, 1998), appeal pending sub nom. EG & G Defense Materials, Inc. v. U.S. Dept. of Labor, No. 99-9501 (10th Cir.); Tyndall v. U.S. Environmental Protection Agency, 93-CAA-6 & 95-CAA-5, ARB Dec. & Rem. Ord., slip op. at 5-6 (June 14, 1996); Crosby v. Hughes Aircraft Co., 85-TSC-2, Sec'y Dec. & Ord., slip op. at 26 (Aug. 17, 1993), aff'd sub nom. Crosby v. U.S. Dept. of Labor, 53 F.3d 338 (9th Cir. 1995) (table); Johnson v. Old Dominion Security, 86-CAA-3, Sec'y Fin. Dec. & Ord., slip op. at 15 (May 29, 1991). Mere belief that plant security may be negatively impacted by the employer's conduct is not by itself sufficient to establish protected activity. Johnson v. Oak Ridge Operations Office, U.S. Dept. of Energy, ALJ Case Nos. 95-CAA-20, -21and -22, ARB Case No. 97-057, slip op. at 10 (Sept. 30, 1999); Minard v. Nerco Delamar Co., 92-SWD-1, Sec'y Dec. & Rem. Ord., slip op. at 4, 8 (Jan. 25, 1995).

   Phillips' security concerns were protected under the ERA because they were based on his reasonable belief that Respondent had violated, or was in the process of violating security requirements applicable to the Cook Nuclear Facility. He had a rational basis for his concern regarding the adequacy of the new plant security format notwithstanding its NRC approval. Complainant's perception was predicated on his contemporaneous belief that NRC approval had been obtained fraudulently based on information suggesting that the tests and exercises relied upon to support the new security format had been intentionally contrived. As

Phillips testified at the hearing before the ALJ:

Question [by Attorney Buhans]:

    Now, with respect to these exercises that took place, my question before, I believe, was, was there anything peculiar about them?"

* * * * *

Answer [by Complainant]:

    [T]he adversary team actually had their hands tied. I mean, we rehearsed this for two weeks prior to the [NRC] OSRE, and we knew pretty much everything that was going to happen and where we should be to make the security look good.

T. at 151-153.

   Finally, Respondent cited Phillips' refusal to cooperate with Respondent's internal investigation (including lying at the time to Respondent's officials), upon which Respondent concluded that Complainant was untrustworthy, as an aggravating factor leading to its decision to terminate Phillips. Phillips' conduct must, however, be evaluated within the whistleblower context in which it arose. Carter v. Electrical District No. 2, supra, slip op. at 11-12; Kenneway v. Matlack, 88-STA-20, Sec'y Final Dec. & Ord., slip op. at 5-6 (June 15, 1989).

   Within the instant context of Complainant's whistleblowing activities, it was not unreasonable for Complainant to refuse to cooperate in Respondent's internal investigation. For reasons of self-preservation it is certainly understandable that an employee, such as Phillips, might be less than candid during management's efforts to assess blame for his protected activity. He should not be forced to put himself at immediate risk of adverse action for failing to divulge his role in such activity. To hold otherwise would discourage potential whistleblowers, contrary to public policy. "The ability of nuclear industry employees to come forward to either their employers or to regulators with safety concerns without fear of harassment or retaliation is a key component of our system of assuring adequate protection of public health and safety from the inherent risks of nuclear power." H. Rep. No. 102- 474(VIII) at 79 (1992), reprinted in 1992 U.S.C.C.A.N. 2282, 2297.

   Under the ERA, the relevant question, which I would decide in Complainant's favor, is whether he established that his protected activity was a contributing factor in Respondent's decision to terminate his employment. 42 U.S.C. §5251(b)(3)(C). Clearly, based upon the preponderance of the evidence of record, it was. But of course, under the ERA this is not the end of the analysis. If Respondent Smith Security was to demonstrate "by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of such behavior," Respondent still would not be liable. 42 U.S.C. §5851(b)(3)(D). Creekmore v. ABB Power Systems Energy Services, supra, slip op. at 5. "For employers, this is a tough standard, and not by accident." Stone & Webster Engineering Corp. v. Herman, 115 F.3d at 1572 (citing ERA 1992 legislative history).

   For the foregoing reasons, I would thus hold that Respondent Stanley Smith Security terminated Complainant Phillips' employment in violation of the whistleblower protection provision of the ERA.

      E. COOPER BROWN
      Member