Makam takes issue with this finding.
However, we conclude that the ALJ's amply-supported finding is correct.
According to Makam, the ALJ's finding is inconsistent with the
Board's decision in Jarvis v. Battelle Pacific N.W. Laboratory , ALJ Case No. 97-ERA-
15, ARB Case No. 97-112 (Aug. 27, 1998). Specifically, Makam states:
In Jarvis , the ALJ held that ERA protection of Jarvis'
recommendations regarding risk acceptance criteria
("RAC") was dependent upon Complainant's
reasonable belief that "the risk assessment methodology then
in use by DOE was in violation of the ERA."
Jarvis , Slip Op. at *22. The ARB reversed, holding that
the ERA protects employees whom in the course of their work,
"must make recommendations regarding how best to
serve the interests of nuclear safety , even when they do not
allege that the status quo is in violation of any specific statutory or
regulatory standard." Id . (emphasis added.) . . . .
Applying its standard, the ARB concluded that Jarvis'
"development of a methodology to be used to assess the risks
posed by radioactive waste deposited in a tank waste remediation
system . . . . qualifies for protection under §211 of the
ERA." Id.
Comp. Br. at 25.
[Page 4]
Makam also maintains that the ALJ's ruling is inconsistent with
Diaz-Robainas v. Florida Power & Light, Co ., Case No. 92-ERA-10, Sec. Dec., (Jan.
19, 1996), a case in which the Secretary determined that the ERA protected an employee even
though he only raised safety concerns with his supervisor.
Makam asserts that, in light of Jarvis and Diaz-
Robainas , the ALJ should have considered the following activities protected:
1.
Identification of the 5 most representative thermo-couples for
conservatively calculating average air temperature in compliance
with tech. spec. (P-115);
2.
Giving direction, review and comment to MPR's report of October 1996 as well as
signing the report to approve MPR's conservative volume-weighted average methodology. (R-
53);
3.
Assigning to himself a CRCA commitment to survey the upper containment air
temperatures in order to refine MPR's methodology. (R-52 at B-269);
4.
Advocating approval of the T-Mod and MPR's methodology through the Containment
Building Ventilation system's final Affirmation Report and Approval in November 1996. (P-65);
5.
Issuance, along with contractor Phil Lawson, of the upper containment air temperatures.
(R-79);
[Page 5]
6.
Resisting Frank Soens' criticism and attempt to scrap the proposed T-Mod survey, while
convincing Acting Supervisor Meinershagen that the survey should go ahead over Soens'
objection. (T-1234; See R-73);
7.
Briefing new Manager, Joe Moaba, about how the containment temperature issue came
about and "what the issues are going to be" in light of the July 8, 1997 calculation
of 116.6E F above average temperature. (T-1284);
8.
Leading a team of engineers to develop the July 9, 1987 calculation and "correction
curve" which adhered to MPR's methodology while adjusting the average temperature
down by 3E F. (R-57 & P-71);
9.
Telling Moaba and Meinershagen on July 10, 1997 that MPR's method was "very
conservative" and that it could be refined based on additional data obtained through the
T-Mod survey. (T-1310, 1338);
10.
Briefing Operations Manager, Chris Bakken, on July 10, 1997, regarding the T-Mod
purpose in refining the MPR calculation. (T-2035);
11.
Submitting his July 26, 1997 Action Plan to new Supervisor, Dave Dodson, for handling
data logger input when retrieved from the upper containment areas. (P-54).
Comp. Br. at 26-28.
We think the Jarvis and Diaz-Robainas cases are
clearly distinguishable from the case before us. In Jarvis , the employee expressed
concern that the storage of lithium in a building that housed radioactive material posed an
explosion risk with the potential for widespread radioactive contamination. Similarly, in
Diaz-Robainas , the employee insisted that the company needed to take certain measures
in order to prevent or mitigate the consequences of a nuclear accident. In contrast, in this case --
as the ALJ found -- Makam engaged in no activity which could be considered to be
protected under the ERA.
To constitute protected activity under the ERA, an employee's acts
must implicate safety definitively and specifically. American Nuclear Resources v. U.S.
Department of Labor , 134 F.3d 1292 (6th Cir. 1998). Makam never expressed to PSE&G
officials a concern that the arithmetic method of calculating containment temperature was less
"safe" than the volume weighted method that he endorsed. In fact, Makam has not
proved that any of his actions were motivated by a belief that PSE&G was violating any nuclear
laws or regulations, ignoring safety procedures, or assuming unacceptable risks. As the ALJ
found, "it cannot be determined from Complainant's testimony which method he himself
advocated, and which method, if any, he believed would constitute a safety concern if
implemented." 1998 ERA 22 and 26 @ 7. Thus, we cannot conclude that any of Makam's
actions implicated safety definitively and specifically.
[Page 6]
The ERA does not protect every incidental inquiry or superficial
suggestion that somehow, in some way, may possibly implicate a safety concern. American
Nuclear Resources, supra , citing Stone & Webster Eng'g Corp. v. Herman , 115 F.3d
1568, 1574 (11th Cir. 1997). Whistleblower provisions such as the ERA's are intended to
promote a working environment in which employees are free from the debilitating threat of
employment reprisals for asserting company violations of statutes protecting nuclear safety and
the environment. They are not, however, intended to be used by employees to shield themselves
from termination actions for non-discriminatory reasons. See Trimmer, supra.
In our view, Makam has not shown any nexus between his actions and some identifiable
safety concern. Consequently, Makam's conduct falls outside the scope of ERA protection, and
we concur with the ALJ that the complaint should be denied.5
SO ORDERED.
CYNTHIA L. ATTWOOD
Member
RICHARD A. BEVERLY
Alternate
Member
[ENDNOTES]
1 The ERA prohibits an employer
from discriminating against or otherwise taking unfavorable personnel action against an employee with
respect to compensation, terms, conditions, or privileges of employment because the employee engaged in
protected whistleblowing activity.
2 The facts are set forth in
greater detail in the Administrative Law Judge's Recommended Decision and Order and need not be repeated
here.
3 The ERA lists six forms
of whistleblower activity which are protected. Of relevance to this case is the prohibition against retaliation
because an employee "[notifies] his employer of an alleged violation of [the ERA] or the Atomic
Energy Act of 1954 . . . ." 42 U.S.C.A. §5851(a)(1)(A).
4 References to the ALJ's
RD&O is to the published opinion on the Department of Labor's World Wide Web site www.oalj.dol.gov.
In this decision, we use the OALJ citation format set forth at www.oalj.dol.gov/cite.htm .
5 Makam has raised a number
of other issues in this appeal. However, inasmuch as Makam has failed to establish an essential element of
his case, we need not address those issues.