# Petition for Writ of Certiorari — Fields v. Department of Labor > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0106%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2000 - **Citation:** 528 U.S. 1115 ## Text _ EE EECA AER OO = ER, \ Supreme Court, U.S ) FILED OQ G28 SEP 2 71999 No. ____ppies og HE CLERK In The Supreme Court of the United States + DAVID A. FIELDS, ROBERT P. WEISS and JACK D. STEWART, Petitioners, VS. UNITED STATES DEPARTMENT OF LABOR ADMINISTRATIVE REVIEW BOARD and FLORIDA POWER CORPORATION, Respondents. 7 On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit ¢ PETITION FOR WRIT OF CERTIORARI * Davip MicHaet CALDEVILLA Counsel of Record Davip Datias Dickey bE LA Parte, Gitpert & Bates, P.A. 101 East Kennedy Boulevard Suite 3400 Post Office Box 2350 Tampa, Florida 33601-2350 Telephone: (813) 229-2775 Attorneys for Petitioners COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 OR CALL COLLECT (402) 342-2831 QUESTION PRESENTED Whether the Court of Appeals deprived petitioners of due process by applying the substantial evidence stan- dard of review, instead of the de novo standard of review, to an administrative tribunal’s summary judgment which dismissed without an evidentiary hearing petitioners’ “whistleblower” complaints against their employer, despite the existence of genuine issues of material fact concerning the employer’s affirmative defense that peti- tioners “deliberately” caused a violation of nuclear regu- latory requirements. il PARTIES TO THE PROCEEDINGS The caption of the case contains the names of all Parties to the Proceedings in the court whose judgment is sought to be reviewed, and there is no parent or subsid- lary company required to be listed by S. Ct. R. 29.6. Te te te iii TABLE OF CONTENTS Page i CTEM deo iccencbvccccccsscvesees i PARTIES TO THE PROCEEDINGS ................. ii ee EI 0.0 0.0 66 one 606 60bobsesnce cee iii NEY SEU REEEE ENED 66 6 becccsesecessocccscess Vv Ctr can dihelcscbibevssceccesatecsacececes 1 an do eWndiavcedabensendeaacsecees 1 eR bth deh a wana sbedcedhscdvedsecedtéuc 1 CONSTITUTIONAL PROVISIONS, STATUTES, AND REGULATIONS INVOLVED ..................... 2 SEAR BOeeINE OF} TEE CASE... ..cccccccsccccccess 3 REASONS FOR ALLOWANCE OF THE WRIT...... 12 The Court of Appeals’ decision concerning an important issue is in conflict with the decisions of its sister courts and this Court, represents a gross miscarriage of justice, and so far departs from the accepted and usual course of judicial proceedings and sanctioned such a departure by a lower tribu- nal, as to call for an exercise of this Court’s super- UE MIE sac ceccccccncccdescessccncncccncese 12 EME sab sescccncccccncseccecscceceasoces 25 APPENDIX A. Court of Appeals’ Decision................. App. 1 B. Court of Appeals’ Order Denying Petition for Rehearing and Rehearing En Banc........... App. 7 c. D. iv TABLE OF CONTENTS - Continued Page Administrative Review Board’s Final Decision and Order Administrative Law Judge’s Recommended Decision and Order Granting Respondent's Motion for Summary Decision............. App. 39 aetaiattentaeimiind Vv TABLE OF AUTHORITIES Page Cases: Agosto v. Immigration and Naturalization Service, Ce Se FOF Cai iis erie vecc ec se 13, 17, 18 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). ..16, 22 Armstrong v. Manzo, 380 U.S. 545 Gets cas va ccunus 19 Associated Press v. U.S., 326 US. 1 CROMER anycacceec 20 Bedoya v. Coughlin, 91 F.3d 349 (2d Cir. 1996)........ 14 Brock v. Roadway Express, Inc., 481 U.S. 252 (1987) .... 19 Byers v. City of Albuquerque, 150 F.3d 1271 (10th MB: GOED eeiknodccctadecitrss to eee 14, 15 Celotex Corp. v. Catrett, 477 U.S. 317 cape 16, 22 Cleveland Board of Education v. Loudermill, 470 U.S. Oe Ne ncbnttnatenbeie rae shies aes 12 Cornelius v. Sullivan, 936 F.2d 1143 (11th Cir. 1991) .... 16 Croley v. Matson Navigation Co., 434 F.2d 73 (5th seale tlns MILLE City Oe LE 23 Cuellar v. Texas Employment Comm., 825 F.2d 930 Ce ix Fltesy sv e'wew sewer aera ee 20 Doehler Metal Furniture Co. v. U.S., 149 F.2d 130 (2d aes Le T TN TE ER IT LS 21 In re Varrasso, 37 F.3d 760 took S| a eee 23 Dominique v. Weld, 73 F.3d 1156 (1st Cir. 1996) ...14, 17 Eastman Kodak Co. v. Image Technical Services, Inc., re OR. OEE CO rice tbintin. cule ee 14 vi TABLE OF AUTHORITIES —- Continued Page Eccles v. People’s Bank of Lakewood Village, 333 U.S. EBB CIDER) . 03 cccccccccccccccccccccccgccccccccscess 20 Goldberg v. Kelly, 397 U.S. 254 (1970)......... 13, 19, 23 Greene v. McElroy, 360 U.S. 474 (1959).........-0005- 13 Hairston v. Gainesville Sun Publishing Co., 9 F.3d G13 (1th Cir.1993).......ccccccccccccccccccccceces 14 Hannah v. Larche, 363 U.S. 420 (1960)..............4. 20 Hartsel v. Keys, 87 F.3d 795 (6th Cir. 1996), cert. den., 519 U.S. 1055 (1997)... ......ceeeeccceeces 14, 17 Heyman v. Commerce & Industry Ins. Co., 524 F.2d BS27 (28 Che. 1975) ..cccccccccccccccccccessescsecs 21 Higgins v. E.I1. Du Pont de Nemours & Co., 863 F.2d 1162 (4th Cle. 1968). 00. ccccccccccccccccesccssceses 14 Hurd v. Sheffield Steel Corp., 181 F.2d 269 (8th Cir. RODD. 2 onccecccsnccctcddndausanacceceseuseauauseen 15 John D. Copanos & Sons, Inc. v. Food & Drug Admin., 854 F.2d 510 (D.C. Cir. 1988)................-000e 14 Johnson Foils, Inc. v. Huyuck Corp., 61 F.R.D. 405 (N.DNLY. 2197S. . cccccccscccccccccesscdcessesesss 21 Kahn v. Secretary of Labor, 64 F.3d 271 (7th Cir. BODED o.oo ccccccccscccscsscsncnnacaunskeutsseeeneenn 16 King v. Ames, 179 F.3d 370 (Sth Cir. 1999)........... 14 Mathews v. Eldridge, 424 U.S. 319 (1976) ............. 19 Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986)... .. 2... . eee cece eee e ees 16 vii TABLE OF AUTHORITIES - Continued Page McCaslin v. Wilkins, 183 F.3d 775 (8th Cir. 1999). .14, 17 McLaughlin v. Richland Shoe Co., 486 U.S. 128 GUPe cbcbecesovectcncdeekesec¥avebedébccavdvii 10, 11 National Screen Service Corp. v. Poster Exchange, Inc., 305 F.2d 647 (5th Cir. Seema | National Wildlife Federation v. Browner, 127 F.3d oo Peer 14 New York Life Ins. Co. v. Brown, 84 F.3d 137 (5th Cir. Pn Teh bene reas Geuubesd s6cedche diodes soto... 22 North Alabama Express, Inc. v. U.S., 585 F.2d 783 PE Mo tencetccaviceneeduak kubkihoseces. 20 Podlesak v. Wesley, 849 S.W.2d 728 (Mo. App. S.D. WUNNES % ye a Pd . Ke = % 4 4 ¢ . ¥ 2 ¢ » ¥ % abe oie RECN Sy Se So tcee Se eae Se ose EN Re App. 19 Inc., Case Nos. 94-ERA-6 and 95-CAA-2, Final Dec. and Order, Dec. 4, 1996, slip op. at 5 and cases there cited, appeal dismissed sub nom. Freels v. Secretary of Labor, Nos. 97-3117 & 97-3383 (6th Cir. Dec. 31, 1997). The facts are considered in the light most favorable to the party oppos- ing the motion for summary decision. Webb v. Carolina Power & Light Co., Case No. 93-ERA-42, Sec. Dec. and Rem. Ord., July 17, 1995, slip op. at 5. An opposing party “may not rest upon mere allegations or denials [in the] pleading[s], but must set forth specific facts showing that there is a genuine issue for trial” and “must present affirmative evidence in order to defeat a properly sup- ported motion for summary judgment.” Anderson v. Lib- erty Lobby, Inc., 477 U.S. 242, 256-257 (1986). To determine if summary decision is warranted, we will examine the showing required of FPC under Section 211 (g), beginning with a determination whether Com- plainants acted without direction from their employer. Complainants Acted Without Direction from FPC It is undisputed that FPC did not expressly direct Complainants to conduct the evolutions on September 4 and 5, but that does not end the inquiry. Complainants argue that an employee acting under the “implied author- ity” of the employer has acted with the employer’s direc- tion. See Comp. Br. at 26. In Dotson v. Anderson Heating and Cooling, Inc., Case No. 95-CAA-11, ALJ Rec. Dec. and Ord., Oct. 2, 1995, adopted in ARB Fin. Dec. and Ord., July 17, 1996, which arose under the Clean Air Act’s (CAA) analogous App. 20 employee protection provision,'!® Environmental Protec- tion Agency (EPA) regulations promulgated under the CAA required workers in the heating and cooling trade to pass a certification test on refrigeration. After failing the test the first time, the complainant, Dotson, participated with his coworkers in cheating during the second admin- istration of the test. The ALJ stated: There is no evidence in the record to support a conclusion that [Dotson’s employer] Anderson explicitly ordered his employees to participate in the cheating activities which occurred during the October 31 examination. Therefore, if there is to be a finding of direction by Anderson, it would have to be implied from the circumstances surround- ing the testing. (Emphasis added). ALJ Rec. Dec. and Ord., slip op. at 19. Complainants contend that there is a genuine issue of material fact concerning whether they conducted the evo- lutions under implied authority from FPC management. Comp. Br. at 26. As support for implied authority, Com- plainants initially cite statements of the NRC in letters declining formal enforcement action against them: Performance of an unauthorized evolution affecting safety systems is a significant viola- tion. However, after considering the results of 10 The Clean Air Act’s nearly identical defense states: Subsection (a) of this section shall not apply with respect to any employee who, acting without direction from his employer (or the employer's agent), deliberately causes a violation of any requirement of this chapter. 42 U.S.C. § 7622(g). App. 21 the OI investigations, the various written sub- mittals and affidavits you and your attorneys have presented, the information you provided during your predecisional enforcement confer- ence, and Florida Power Corporation’s (FPC investigation results, we have concluded that for- mal enforcement action against you is not war- ranted. This decision is based, in part, on the extent of FPC management's responsibility and culpability. You are no doubt aware that the NRC has issued a significant sanction against FPC which included this violation. (Emphasis added). RX 61 at 1-2 and RX 62 at 1-2. Complainants argue that “{I]f the management has been held responsible for this incident, then Complainants do not fall under the (g) exception, as they acted under the implied direction of their employer.” Comp. Br. at 26. We do not agree that the NRC’s statements indicate the existence of implied authority in this case. In its letter to Fields, the NRC found that, “the unauthorized evolu- tions authorized and directed by you on September 4 and 5, 1994, constituted a violation of the conditions of your 10 CFR Part 55 license.” RX 61 at 1!!. After noting that the Complainants no longer possess an NRC operator’s license (which FPC had revoked), the NRC stated that “[t]his experience should emphasize to you the impor- tance of not taking unilateral action such as conducting unauthorized evolutions.” Id. at 2. The NRC’s use of the words “unilateral” and “unauthorized” in these circum- stances to describe Complainants’ actions negates any 11 There is nearly identical language in the NRC’s letters to Weiss, RX 61, and Stewart, RX 62. App. 22 inference Complainants attempt to draw from the NRC letter quoted above that they had implied authority to conduct the evolutions. Furthermore, the NRC’s Notice of Violation and Proposed Imposition of Civil Penalties faulted FPC for “ineffective management oversight of engi- neering, operations, and corrective action activities dem- onstrated by these violations.” Ex. 58 at 3 (emphasis added). Complainants worked in operations, one of the units that FPC did not oversee effectively. For all these reasons, we reject the argument that the NRC letters demonstrate implied authority. Complainants also cite other factors to support their theory of implied authority in this case. They note that the CR-3 plant was “in an almost constant state of alarm for two months upon the initial issuance of Curve 8 and hundreds of times subsequently, without filing any reports with the NRC.” Comp. Br. at 28, citing C. at 53. Complainants argue that the routine triggering of the MUT tank annunciator alarm light was a past course of “management acquiescence and approval of similar con- duct” which made it reasonable for them to believe that they had the authority to run the evolutions. Comp. Br. ait 28. The Dotson case is instructive concerning the allega- tion that management acquiescence constitutes implied authority. In that case, the employer, Anderson, was pres- ent in the room at the time that Dotson cheated on the examination. The ALJ reasoned, and we concurred: Anderson was present in the room when Butch left the answer sheet. Although Complainant testified that he believed that Anderson had 3 Bs B t i 1% am : q Z ‘ iz 3 a a E % : ARP SORA eee BR CR alll ET aoe Tare We a App. 23 paid Butch a bribe to set up the exam and pro- vide the answers, he presented no corroboration of this allegation. Therefore, there is no evidence that Anderson knew what Butch was about to do upon beginning the examination. But even if Anderson did know of Butch’s plans, there must still be some additional showing that he exerted some pressure, even indirectly, upon his employees to both remain in the room and par- ticipate in the cheating. Complainant has offered no evidence to this effect, even by his own testi- mony. Thus, the question becomes: was Ander- son’s mere presence in that room significant enough to amount to “direction” to Complain- ant to cheat on the exam? While there is undoubtedly some combination of facts which would yield a positive answer to this question, this fact pattern does not. Complainant's willing participation in the reading aloud of the correct answers clearly separates him from being either an innocent bystander or the victim of Ander- son’s coercion, however slight. While it would be understandable for Complainant to be reluc- tant to refuse to take the exam under the circum- stances which existed on October 31, clearly his willingness to take part in the reading of the answers strongly indicates his free will partici- pation in the cheating. Based upon the forego- ing, I find Complainant did not act at the direction of his employer during the test-taking. incident of October 31, 1994. Dotson, ALJ Rec. Dec. and Ord., slip op. at 19. In Dotson the employer’s physical presence during the complainant’s commission of the unlawful act did not constitute implied authority. In this case FPC’s prior acquiescence in operating the plant under conditions that App. 24 triggered the MUT annunciator light likewise did not constitute implied authority. Moreover, FPC did not acquiesce in the precise behavior that caused a violation. Complainants conceded that no one had ever before raised the hydrogen pressure and the water to the maxi- mum levels and rapidly drained the MUT of water, as they did. Fields Dep. at 59; Weiss Dep. at 179. We find no implied authority here on the basis of employer acquies- cence in similar conduct. Complainants’ final argument concerning implied authority is based upon a duty under their operators’ licenses to “protect the public and to assist in maintaining the plant at optimum safety levels.” Comp. Br. at 28. They state that “[t}]he only way management would further consider their concerns was if they had some hard data to highlight the problem.” Id. at 29. The NRC’s letters to Complainants, however, explain that Complainants had at least two additional routes to raise their concerns about Curve 8: We recognize that your operating crew had raised questions concerning the conservatism of operating curve OP-103B, Curve 8 to your man- agement and to an NRC inspector. We are con- cerned about the responses received from both your management and the NRC. Nevertheless, as a Shift Supervisor, we would have expected you to have raised your concern higher within FPC. You could have raised the issue to either the Regional office or NRC headquarters. Rather than pursue other avenues, you authorized your crew to per- form a test that was not described in the Final Safety Analysis Report by using a procedure I OS en i eee ey App. 25 that had not been designed for data gathering purposes. (Emphasis added). RX 61 at 2 (Fields and Weiss letters); see also RX 62 at 2 (Stewart letter). The record demonstrates unequivocally that Com- plainants could have brought their concerns about Curve 8 to higher managers within FPC and to the NRC’s regional office and headquarters. Given that other ave- nues were available to pursue Complainants’ safety con- cern, the duty to protect the public did not constitute implied authority to conduct the evolutions. Taken alone or together, the three theories of implied authority did not generate a genuine issue of material fact. We find, as a matter of law, that Complainants acted without any implied authority and that they acted “with- out direction from” FPC when they caused a violation.!2 Section 211(g) Contains an Element of Willfulness There is a considerable divergence of opinion among the parties and the Acting Assistant Secretary for Occu- pational Safety and Health, who filed a brief amicus cur- lae, concerning the meaning of the phrase, “deliberately causes a violation.” Complainants contend that Section 211 (g) must be interpreted “to require that a complainant know his acts are illegal before he is stripped of his whistleblower protection.” Comp. Br. at 12. Complainants 12 We adopt the ALJs rejection of the argument that Weiss and Stewart acted with direction of their employer because they were following the direction of Fields, their superior. R. D. and O. at 16-18. App. 26 also argue that the NRC’s definition of “deliberate” should apply to a Section 211 (g) defense. Comp. Br. at 24-25. They state that under a NRC regulation, 50 C.F.R. § 50.5(c), deliberate misconduct is defined as “ ‘an inten- tional act or omission that the person knows’ would result in a violation of law or regulation.”!% Id. at 24. Respondent argues the opposite, that Section 211(g) may deprive complainants of whistleblower protection even if they do not know that their act causes a violation. The ALJ agreed with Respondent and the three part test he derived does not contain a willfulness element.'4 ‘3 Complainants refer to only a portion of the NRC’s definition, however. The definition also includes “an intentional act or omission that the person knows . . . (2) Constitutes a violation of a requirement, procedure, instruction, contract, purchase order, or policy of a licensee, applicant, contractor, or subcontractor.” 10 C.F.R. § 50.5(c). On two occasions when Complainants intentionally forced the MUT hydrogen pressure to the point that it triggered the annunciator alarm and allowed the alarm to remain on for some 35 to 43 minutes, they engaged in an intentional act that violated FPC’s procedures and instructions. Thus, if we were to adopt the NRC’s definition, as Complainants suggest, we would find that they engaged in deliberate misconduct as defined by the NRC regulation. 14 The ALJ stated that he derived the three part test from the Secretary’s analysis in Jackson and Roskam v. Ketchikan Pulp Co., Case Nos. 93-WPC-007 and 93-WPC-008, Sec. Final Dec. and Ord., Mar. 4, 1996. See R. D. and O. at 15-16. In Jackson and Roskam the Secretary made no analysis of the analogous “deliberately causes a violation” language in the Federal Water Pollution Control Act (WPCA). The Secretary’s entire discussion of the issue was contained in one sentence: “For purposes of my review of the ALJs decision on the merits, I have assumed, without deciding, that Jackson’s attempt to dispose of a cable ese ey fs ak EE Noe er ae Se RAT i Dacha Ni auc eine Ss aig h 5 Ze ot (oan r LSE CBE SEEM ELTA ; : a , App. 27 The Acting Assistant Secretary argues that Section 211 (g) “applies only in situations where an employee willfully commits a nuclear safety violation,” which would be satisfied either by knowledge that a violation will occur or by reckless disregard for whether a violation will occur. Asst. Sec. Br. at 4, 8. The Acting Assistant Secretary relies upon the common, dictionary meaning of the word “deliberate,” the legislative history of the ERA’s employee protection provision, and the fact that requir- ing an element of willfulness furthers the remedial nature of the ERA’s whistleblower provision.” 15 Since the statute does not define the term, “deliber- ately,” we will turn to the legislative history. The Acting Assistant Secretary finds support for defining the term to include the element of willfulness in the Senate Report: in order to avoid abuse of the protection afforded under the [ERA’s employee protection provision], the committee has added a provision which would deny its applicability to any employee who, without direction from his employer, deliberately violates or willfully contrib- utes to a violation of any standard, requirement, or regulation under the act. (Emphasis added). S. Rep. No. 848, 95th Cong., 2d Sess. 30 (1978), reprinted in 1978 U.S.C.C.A.N. 7303, 7304. We find that the use of the term “willfully contributes to a violation” in the Sen- ate Committee’s report indicates that Congress intended into the water did not exclude him from protection under the WPCA. 33 U.S.C. § 1367(d).” Jackson and Roskam, slip op. 5 n.3. 'S The Acting Assistant Secretary “offered no opinion as to whether the complainants here willfully violated a nuclear safety requirement.” Asst. Sec. Br. at 4 n.4. App. 28 the words “deliberately causes” to have an element of willfulness. As a remedial statute, the ERA should be liberally interpreted to protect victims of discrimination and to further its underlying purpose of encouraging employees to report perceived nuclear safety violations without fear of retaliation. See generally, English v. General Elec. Co., 496 U.S. 72 (1990). See also, Bechtel Constr. Co. v. Secretary of Labor, 50 F. 3d 926, 932 (11th Cir. 1995) (“it is appropriate to give a broad construction to remedial statutes such as nondiscrimination provisions in federal labor laws.”). Since the ERA’s remedial protection is to be interpreted broadly, any affirmative defenses logically should be interpreted narrowly so as to provide the act’s protec- tions to employees who work within the bounds of safety. The ALJs interpretation of Section 211 (g) to include any action that is not inadvertent would, however, greatly expand the breadth of this affirmative defense. Such an interpretation could lead to unfortunate results in situations in which an employee acts deliberately (that is, not inadvertently), but innocently and without knowl- edge or reckless disregard that his or her action will cause a violation of the ERA or the Atomic Energy Act. We are unaware of any decision in which a court has directly addressed the meaning of phrase, “deliberately causes a violation,” in Section 211(g) or analogous whis- tleblower provisions. The sole Supreme Court case con- cerning Section 211 (g) does not shed iight on its meaning. In English, 496 U.S. at 90, the Court held that a state law “claim for intentional inflection of emotional distress does nct fall within the pre-empted field of Bit On wheats aes toes App. 29 nuclear safety” or “conflict with any particular aspect of Section [211].”!© The Court’s cursory discussion of Sec- tion 211 (g) merely repeated the ALJ’s finding on the subject, which neither the Secretary nor the lower courts discussed: “In the instant case, the ALJ found that peti- tioner had not deliberately committed a safety violation within the meaning of Section [211 (g)], . . . and neither the Secretary nor the lower courts have suggested other- wise.” Id. at 88. Both Complainants, Comp. Br. at 18-19, and FPC, Resp. Br. at 19-20, draw support for their interpretation of “deliberately causes a violation” from Iowa Electric Light & Power Co. v. Local 204, Int'l Brotherhood of Elec. Workers, 834 F.2d 1424 (8th Cir. 1987). There, the United States Court of Appeals for the Eighth Circuit affirmed a Dis- trict Court ruling that overturned a labor arbitration award of reinstatement of an employee who had been discharged for “deliberately violating important feder- ally-mandated safety regulations.” Id. at 1425. The NRC had approved the discharge. Id. at 1426. The Eighth Cir- cuit found that the employee “deliberately proceeded to defeat the interlock system, thereby committing a know- ing violation of the safety rule. ...” Id. at 1430. Although the court was not construing the meaning of Section 211 (g), we note that the Eighth Circuit equated the term “deliberately” with the element of knowledge. The court found that where the employee knows there is a rule, 16 After the English decision, Congress amended the ERA in the Comprehensive National Energy Policy Act of 1992, Pub. L. No. 102-86, 106 Stat. 2776. The amendment renumbered former § 210 as § 211. App. 30 knows that the rule has an important purpose, and the employee violates the rule, the employee has acted delib- erately. Id. We do not read lowa Electric to mean that an employee must know the particular rule he is violating or secondly, that an employee who recklessly disregards safety rules is protected. In Iowa Electric the employee had actual knowledge of causing a safety violation and the issue of reckless disregard did not arise. Id. at 1429-1430. We do, however, rely on Iowa Electric to sup- port our conclusion that an element of willfulness must be present in order to successfully raise a 211 (g) defense. Including the element of willfulness in the meaning of “deliberately causes a violation” also is in keeping with Board precedent. In the previously discussed deci- sion in Dotson where the affirmative defense was suc- cessfully raised, the complainant, Dotson, admitted “that he actively participated in reading off at least some of the answers” from a copy of the test that was left in the room where the EPA examination was administered. Dotson, ALJ Rec. Dec. and Ord., slip op. at 18. The ALJ found Dotson’s “admission sufficient to determine that Com- plainant deliberately participated in an activity which violated the Act, whose provisions mandate the taking and passing of the CFC examination, presumably without cheating, in order to be allowed to continue working in the HVAC industry.” Id. The discussion in Dotson shows that the complainant acted willfully, with either knowl- edge or reckless disregard, that his cheating would cause a violation of the Clean Air Act as he continued to work in refrigeration without having lawfully passed the certi- fication exam. Slip op. at 18-19. i al te 2 P kata App. 31 Section 211(g) Does Not Require Specific Intent Complainants suggest that decisions of the Secretary construing Section 211(g) require a finding of the com- plainant’s “specific intent” to cause a violation. Comp. Br. at 14. As an example, Complainants point to language in Drew v. Jersey Central Power & Light Co., Case No. 81- ERA-3, ALJ (Rec.) Dec. and Ord., June 16, 1982, slip op. at 19, adopted in Sec. Final Dec. and Ord., Jan. 13, 1984: “There is no substantial evidence that Complainant delib- erately caused any violation of the law. Drew did proceed to repair the defective weld valve in November 1978 without benefit of a prior written approval of his welding procedure for that weld, but he believed he was acting properly.” We do not find a specific intent requirement in Drew, where the ALJ emphasized that the failure to obtain prior written approval was merely a “technical procedural problem” and a “technical violation” of quality assurance rules. Drew, ALJ Dec., slip op. at 18. There was no indica- tion of reckless behavior on Drew’s part. At most, Drew stands for the proposition that where a technical and procedural regulatory violation is posited as the basis for a Section 211 (g) defense, the complainant’s belief that he was not causing a violation is a factor to consider. Nor do other, later decisions of the Secretary, con- vince us that for a successful Section 211(g) defense there must be a showing of the complainant's specific intent to cause a violation. In James v. Ketchikan Pulp Co., Case No. 94-WPC-4, Sec. Final Dec. and Ord., Mar. 15, 1996, what- ever the complainant's intentions in using sloppy prac- tices to conduct laboratory tests, there was no showing App. 32 that his poor practices caused any statutory or regulatory violation, and therefore the defense based upon “deliber- ately causes a violation” necessarily failed.!7 Similarly, in Creekmore v. ABB Power Systems Energy Services, Inc., Case No. 93-ERA-24, Dep. Sec. Dec. and Rem. Ord., Feb. 14, 1996, although the record established that violations of NRC regulations had occurred, the Dep- uty Secretary found that the complainant did not cause the violations: “Since I credit Creekmore’s testimony that he neither knew about, or condoned, the premature issu- ance of good guy letters [clearing personnel for access to nuclear sites], I also agree with the ALJ’s finding that Creekmore did not deliberately cause [the respondent] to violate the ERA.” Creekamore, slip op. at 15. Relying upon the legislative history and statutory purpose of the whistleblower provision and consistent with earlier decisions of the Secretary and this Board, we find that to establish a valid Section 211 (g) defense, a respondent must show that a complainant willfully or recklessly caused a violation of the ERA or the Atomic Energy Act, that is, that the complainant acted with knowledge or with reckless disregard of whether his or her act would cause a violation. Having defined the nec- essary showing for “deliberately causes a violation,” we will discuss whether FPC made that showing in this case. 17 James arose under the WPCA, which contains a provision nearly identical to Section 211(g). See 33 U.S.C. § 3367(d). App. 33 Complainants Acted With Reckless Disregard, and Therefore Deliberately Caused a Violation Complainants did not have actual knowledge that maximizing the MUT’s hydrogen pressure and draining its water would cause a violation of the ERA or the Atomic Energy Act, as FPC’s actions demonstrate. The company presented Curve 8 to the reactor operators as a conservative operating curve and there is no violation if such a curve is exceeded by a small amount. In addition, the annunciator light indicating that MUT hydrogen pres- sure was too high had been triggered often in the months prior to September 1994. Complainants suspected, but did not actually know, that Curve 8 was nonconservative. Indeed, it was only after the Complainants conducted the unauthorized evolutions that FPC managers learned definitively that Curve 8 was a design curve that should never be exceeded. We would be more inclined to find an absence of recklessness if there were no other means to seek correc- tion of Curve 8. As we noted above, however, Complain- ants could have brought their concerns to higher managers within FPC and to other levels of the NRC, both in the regional office and at the headquarters. An NRC resident inspector even invited Complainants to submit a formal allegation to the NRC concerning Curve 8. Complainants contend that their actions “were appropriate, and consistent with the type encouraged by the respondent.” Comp. Br. at 8. Nevertheless, they admitted in depositions that the specific evolutions they conducted had not been done in the past. And if they App. 34 sincerely believed their actions were consistent with pro- cedures that FPC encouraged, they could easily have sought approval for the evolutions from higher manage- ment. They did not do so. See R. D. and O. at 16. Complainants were well aware of the danger of oper- ating the reactor with hydrogen pressure that was too high for the level of water in the MUT. Both Fields (Dep. p. 54, 78) and Weiss (Dep. p. 65-66) believed that catastro- phe could arise if a loss of coolant accident occurred while the MUT’s hydrogen pressure was too high. While the NRC acknowledged that the Complain- ants’ actions had the salutary effect of proving that Curve 8 was nonconservative, the agency also concluded that the salutary effect did not excuse the Complainants’ risk taking: We further recognize that your operating crew contributed to the determination that the curve for maximum make-up tank pressure was in error and nonconservative and that the plant had been periodically operated outside its design basis. You also provided additional data that assisted in determining the extent to which operators were violating OP-103B, Curve 8, and the environment that existed at FPC. Neverthe- less, we emphasize that the ends cannot justify the means. In this case, your actions demon- strated the validity of your concerns; in other instances such might not be the case. RX 61 at 2 (Fields, Weiss letters); see also RX 62 at 2 (Stewart letter). Nuclear power is “one of the most dangerous tech- nologies man has invented.” Rose v. Secretary of Labor, 800 App. 35 F.2d 563, 565 (6th Cir. 1986) (Edwards, concurring). We find that, in light of the inherent danger involved in operating a nuclear plant and the existence of other ave- | nues of redress for their suspicions about Curve 8, Com- plainants acted with reckless disregard of whether a violation of the ERA or the Atomic Energy Act would occur when they conducted the September 4 and 5 evolu- tions. CONCLUSION In light of the Complainants’ reckless disregard for whether a violation would occur, the Complainants “deliberately caused a violation” of regulations promul- gated under the Atomic Energy Act and the ERA. There is no genuine issue of material fact and FPC has established a valid Subsection 211 (g) defense as a matter of law. Accordingly, we accept the ALJ’s recommendation and grant summary decision to FPC. The complaints are DIS- MISSED. SO ORDERED. /s/ David A. O’Brien DAVID A. O’BRIEN Chair +4 pre 7 /s/ Karl J. Sandstrom ; KARL J. SANDSTROM § Member Poet ey ees srinkes " App. 36 ADMINISTRATIVE REVIEW BOARD CERTIFICATE OF SERVICE Case Name : David A. Fields, Robert P. Weiss, and Jack D. Stewart v. Florida Power Corporation ARB Case No.: 97-070 ALI Case No. : 96-ERA-22 Document : Final Decision and Order A copy of the above-referenced document was sent to the following persons on MAR 13 1998 /s/ Tisa McLae i CERTIFIED MAIL: David A. Fields 7347 Applewood Drive Inverness, FL 34450 Robert P. Weiss 964 NE 8th Avenue Suite 4 Crystal River, FL 34428 Jack D. Stewart 940 NE 4th Avenue Crystal River, FL 34428 David D. Dickey, Esq. de la Parte, Gilbert & Bales One Tampa City Center Suite 2300 P. O. Box 2350 Tampa, FL 33601-2350 App. 37 R. Alexander Glenn Corporate Counsel Florida Power Corporation 3201 34th Street South St. Petersburg, FL 33711 Morris Weinberg, Jr., Laura Vaughan Zuckerman, Spaeder, Taylor & Evans, LLP 401 E. Jackson Street, Suite 2525 Tampa, FL 33602 Daniel F. Stenger Donn C. Meindertsma, Esq. Winston & Strawn 1400 L Street N.W. Washington, DC 20005-3502 REGULAR MAIL: Barry J. Lentz Wage and Hour Division/ESA 4905 W. Laurel Street, Suite 300 Tampa, FL 33607 Steven J. Mandel, Esq. Associate Solicitor for Division of Fair Labor Standards U.S. Department of Labor Room N-2716 200 Constitution Avenue, N.W. Washington, D.C. 20210 John R. Fraser Acting Administrator Wage and Hour Division/ESA U.S. Department of Labor Room S-3502 200 Constitution Avenue, N.W. Washington, D.C. 20210 App. 38 Director Enforcement & Investigation Coordination Staff Nuclear Regulatory Commission Region II, Suite 2900 101 Marietta Street, NW Atlanta, GA 30323 Director Office of Enforcement Nuclear Regulatory Commission Washington, D.C. 20555 Deputy Assistant General Counsel for Enforcement Office of the General Counsel U.S. Nucfear Regulatory Commission Washington, DC 20555 Office of General Counsel Deputy Assistant General Ceunsel for Enforcement 11555 Rockville Pike Rockville, MD 20852 Hon. John M. Vittone Chief Administrative Law Judge Office of Administrative Law Judges 800 K Street, N.W., Suite 400 Washington, DC 20001-8002 Hon. David W. Di Nardi Administrative Law Judge Office of Administrative Law Judges John W. McCormack Post Office and Courthouse, Room 500 Boston, MA 02109 a a ee App. 39 U.S. Department of Labor [LOGO] (617) 223-9355 (617) 223-4254 (FAX) Office of Administrative Law Judges John W McCormack Post Office and Courthouse Boston, Massachusetts 02109 Room 507 Date: March 11, 1997 Case No.: 96-ERA-22 In the Matter of: David A. Fields, Robert P. Weiss, and Jack D. Stewart Complainants Vv. Florida Power Corporation Respondent RECOMMENDED DECISION & ORDER GRANTING RESPONDENT’S MOTION FOR SUMMARY DECISION This case arises under the Energy Reorganization Act of 1974 as amended, 42 U.S.C. §5851 (hereinafter “the Act” or “the ERA”), and the implementing regulations found at 29 C.F.R. Part 24. Pursuant to the Act, employees of licensees of or applicants for a license from the Nuclear Regulatory Commission (hereinafter “the NRC”) and their contractors and subcontractors may file complaints and receive certain redress upon a showing of being subjected to discriminatory action for engaging in a pro- tected activity. The following abbreviations shail be used herein: “RX” for Exhibits attached to Respondent's App. 40 Motion for Summary Decision and “CX” for Exhibits attached to Complainants’ Response to the Motion. I. Summary of the Motion There is currently pending before this Administrative Law Judge, Respondent’s Motion for Summary Decision and/or Dismissal. Said Motion was submitted on or about November 25, 1996, and argues (1) that summary decision and/or dismissal of the entire complaints is proper based upon the §5851(g) affirmative defense, and / or (2) that summary decision and/or dismissal of part of the Fields and Weiss complaints is proper based upon the statute of limitations found at 42 U.S.C. §5851(b)(1). Com- plainants exercised their right to respond to the Motion by Complainants’ Response to FPC’s Motion for Sum- mary Decision and/or Dismissal, dated December 5, 1996.' I have also considered Respondent's Reply to Com- plainants’ Response to Motion for Summary Decision in reaching my determination of whether to grant the Motion. | also granted the parties the benefit of appearing before this Judge to present oral argument on the Motion. The Motion hearing was conducted on December 19, 1996, in Tampa, Florida, and I have duly considered the ' CX J, admitted at the December 12, 1996, Motion hearing, is Complainants’ Amended Response to FPC’s Motion for Summary Decision and/or Dismissal. The Amended Response was provided for the sole purpose of including citations of deposition transcripts previously omitted due to unavailability at the time the original response was filed. App. 41 persuasive arguments of both counsel which were then presented. Il. Summary of the Evidence There are certain irrefutable facts established by the various supporting documents attached to Respondent's Motion for Summary Decision and Complainants’ Response thereto. Among these documents, which I may properly rely upon in considering the pending Motion, are Complainants’ deposition testimony, the Complain- ants’ testimony before the Nuclear Regulatory Commis- sion’s Office of Investigations, and a number of letters from the NRC to the parties. I have found the Complain- ants’ above-mentioned depositions and testimony of par- ticular relevance because, for purposes of this Motion, I assume it to be truthful and in accordance with testimony they would have given in a hearing before this Admit:is- trative Law judge. The irrefutable facts are these: 1. Respondent operates the CR-3 nuclear power plant located in Crystal River, Florida. 2. Complainants were reactor operators at the CR-3 nuclear plant. As reactor operators, the Complainants were licensed by the NRC and subject to regulatory and licensing requirements. Compl., { 2. Complainant Fields occupied a position as the Nuclear Shift Supervisor, Com- plainant Weiss was the Assistant Shift Supervisor, and Complainant Stewart was one of two Chief Nuclear Oper- ators. App. 42 3. The Make-up Tank (MUT) is one of the primary safety systems in the event of a loss of coolant accident (LOCA) at CR-3. 4. The Complainants were concerned that Curve 8, a curve which provides the pressur?/level limits for the Make-up Tank, was invalid. The Complainants’ con- cern(s) about Curve 8 were serious. See RX A, Fields Deposition (hereinafter Fields Depo.), p. 54, 78 (reason to believe catastrophic events could happen); RX B, Weiss Deposition (hereinafter Weiss Depo.), pp. 65-66 (Weiss believed there was a potential for catastrophe at the plant); RX __.? Stewart Deposition (hereinafter Stewart Depo.), pp. 12-13 (Stewart states the potential for catas- trophe was that crews were operating in a region where a LOCA could occur). See Also Compl., {{ 59 and 61 (which set forth the Complainants’ belief that they had a duty to verify a critical safety issue). 5. It is uncontroverted that on September 4 and 5, 1994, the Complainants each participated in adding hydrogen to the MUT and then rapidly reducing the water level. Compl. {{ 62-63, 72-73; Fields Depo., pp. 109-110. 6. There was no plan to perform these acts prior to the beginning of the respective shifts. Fields Depo., pp. 151, 226, 419; Weiss Depo., pp. 226, 351-52; RX 53, NRC Office of Investigation (hereinafter “OI”) interview of Com- plainant Weiss, December 1, 1994, p. 7; RX 54, NRC OI Interview of Complainant Fields, December 1, 1994, pp. 10-15. 2 This is an unlettered exhibit supplied to this Judge upon its availability from the transcriber. App. 43 7. It was Mark Van Sicklen’s? idea to perform these acts on September 4, 1994. Weiss Depo., pp. 126, 158-59. Van Sicklen suggested the acts to Complainant Weiss and Weiss took the idea to Complainant Fields. Weiss Depo., pp. 126-27, 158-59. 8. In the middle of the shift on September 5th, Com- plainant Weiss and Van Sicklen suggested to Stewart that they should try the evolution again. Stewart Depo., p. 68. 9. These acts triggered a control room annunciator alarm, compl. {{ 63 and 73; Fields Depo. pp. 97, 109-110, 159-169, 172-173; which remained in alarm on September 4th for forty-three (43) minutes, and on September 5th for thirty-five (35) minutes. Fields Depo., pp. 489-90; RX 32, Memorandum From D. Fields to G. Halnon Dated March 15, 1995, p. 3; RX 35, Memorandum from D. Fields to S. Ebneter Dated May 23, 1995, p. 3. See Also Weiss Depo., pp- 38, 43. A timeline of the September 5 acts was drafted by Complainants Fields and Weiss. See RX 14, Problem Report 94-0267, Dated September 7, 1994; RX 18, OP-103B Curve 8 Verification 9/5/94; RX 29, LER 94-009-00, Dated December, 1994; RX 52, “Timeline MUT lvl decrease 9/5/94.” 10. It is a fact that the only reason the Complainants conducted the acts was to challenge the validity of Curve 8. Fields Depo., pp. 78, 85, 114; Weiss Depo., pp. 177, 178; Stewart Depo., pp. 55, 56, 76. There were no operational * Mr. Van Sicklen is not a Complainant in the present action. He was, however, a participant in the actions performed. At the relevant time, Mr. Van Sicklen was employed as a Chief Nuclear operator at CR-3. App. 44 reasons for the acts. Fields Depo., p. 77; Weiss Depo., p. 76; Stewart Depo., p. 76.4 The intent was to give Engineering data that would convince them that there was a problem with the Curve. Weiss Depo., p. 98; Fields Depo., pp. 78, 86; Stewart Depo., pp. 12, 164-65. 11. Weiss states the decision to challenge Curve 8 on the 4th and the 5th was a deliberate and intentional decision on his part. Weiss Depo., p. 184. 12. Stewart admits that it is a fact that if a crew deliber- ately takes a plant beyond any of the parameters of Curve 8, i.e., the 55 inch low and 86 inch high, that a test procedure is needed. Stewart Depo., p. 21. 13. Complainants did not consult with the CR-3 Engi- neering Department before conducting their acts, either on the 4th or the 5th, Weiss Depo., p. 100, nor did they consult management or the Shift Manager regarding their acts, Fields Depo., pp. 80, 418-25; Weiss Depo., pp. 83-84, 88-89; RX C, Affidavit of Gregory Halnon, para. 5; RX D, Affidavit: of Bruce Hickle, para. 4; nor did they consult the NRC. Fields Depo., p. 52; Weiss Depo., p. 253. Stewart admits that neither Complainant Fields nor Complainant Weiss told him that they had talked with Greg Halnon; Bruce Hickle, Director of Nuclear Plant Operations; or Dr. P.M. Beard, Senior Vice-President of Nuclear Operations, about the tests. Stewart Depo., p. 123. + There was no operational reason to add hydrogen. Fields Depo., p. 77; Stewart Depo., p. 76. Stewart states the “operational reason” that the crew lowered the level from 86 to 55 inches was to find out if Curve 8 was valid or not. Stewart Depo., p. 77. See Also Fields Depo., p. 78. I find this to be a circuitous statement. App. 45 14. Weiss states he did not tell a shift supervisor of the actions because he was using routine procedure to check it out. Weiss Depo., p. 27. Weiss calls the steps of the process routine, a series of routinely performed evolu- tions. Weiss Depo., pp. 72, 128, 352. Weiss believed he was fully authorized to do what he did. Weiss Depo., p- 71. Fields explains that he did not consult with the NRC because “what we planned to do was clearly within our authority to perform,” Fields Depo., p. 52, i.e., it was within OP-402, a pre-approved procedure. Fields Depo., pp. 65, 153. See Also RX 32, supra para. 9. 15. Weiss admits, however, that it was not routine to call the auxiliary building operator and tell him to dress out, Weiss Depo., p. 72; nor was it routine to add hydrogen at a high level and do an entire bleed down to the low level while the plant was in alarm. Weiss Depo., p. 73. See Also Stewart Depo., pp. 28-29, 37, 46-47 (stating the non- routine nature of the acts performed). 16. Complainant Stewart does not know if it is routine to add hydrogen at the high level and do a bleed to the low level, although he states that he had never done it before. Stewart Depo., 29. During Complainant Stewart's OI interview, the investigator asked if it was “a routine evolution or routinely [sic] to post someone at the makeup tank at that area in order to vent the makeup tank during a hydrogen fill operation?” Stewart Depo., p. 115, (Quoting RX 55, Stewart’s OI Interview of Decem- ber 1, 1994, p. 11). Stewart answered “No. We don’t anticipate challenging any curves.” Stewart Depo., p. 115. Complainant Stewart admits it is not a routine conversa- tion to discuss what would happen if a LOCA came in. Stewart Depo., p. 28. App. 46 17. Complainants did not know, at the time of their acts, that Curve 8 was a design basis. Stewart Depo., pp. 63, 149; RX 32, supra para. 9, at p. 3; RX 35, supra para. 9, at p. 3. Complainants have, however, stated they suspected Curve 8 was nonconservative. Stewart Depo., p. 148; RX 35, supra para. 9, at p. 5. 18. Complainants did not know, at the time of their acts, what the definition of a test was. Stewart Depo., p. 93; CX 66, NRC Investigative Interview of R. Weiss, August 31, 1995, at p. 37. 19. An NRC OIF Report states Respondent had appar- ently violated NRC regulations by failing to exercise the appropriate management oversight and control in an attempt to preclude intentional violation of plant pro- cedures. RX 59, Letter From NRC to P.M. Beard, Dated July 7, 1995, at p. 2. 20. An NRC Notice of Violation and Imposition of Civil Penalties, dated on or about July 10, 1996, states that the NRC has determined Respondent has committed a number of significant violations of NRC requirements. RX 58, Letter From NRC to P.M. Beard Dated July 19, 1996. Among these violations was a violation for routinely exceeding operating limits associated with operating pro- cedure OP-103B, Curve 8, and a violation in which a crew of licensed operators conducted unauthorized tests on two separate occasions in an effort to resolve safety issues that had not been promptly addressed by Respondent. RX 58, supra, at p. 2. In regards to the latter action, the NRC Description of Violations also states that although “this violation resulted from the independent actions of a sin- gle shift operating crew, FPC as the employer of the App. 47 operators involved bears responsibility for their actions as employees.” RX 58, supra, at Enclosure 1, Do. 2. 21. A February 13, 1996, Report of Investigation by the NRC OL, states its conclusion as follows: “the shift super- visor, assistant shift supervisor, and two chief operators on the midnight shift of September 4 and 5, 1994, deliber- ately conducted an evolution, not required by plant con- ditions, for the specific purpose of gathering data. Furthermore, when the allowable makeup tank over- pressure was exceeded, the operators deliberately delayed taking appropriate action to reduce makeup tank overpressure while gathering that data.” RX 64, NRC OI Report of Investigation Dated February 13 1996, Syn- opsis, at p. 1. 22. The NRC determination of violation letter, sent to Complainant Fields states As a senior reactor operator, you were licensed to direct the activities of other operators. The Operating crew that you supervised failed to meet the standards for operators of a nuclear power plant. We conclude, based on the infor- mation developed during the inspections and investigations and the information you pro- vided during the conference, that the unauthorized evolutions authorized and directed by you on September 4 and 5, 1994, constituted a violation of the conditions of your 10 C.F.R. Part 55 license. Performance of an unauthorized evolution affecting safety systems is a significant viola- tion. However, after considering the results of the OI investigations, the various written sub- mittal and affidavits you and your attorneys App. 48 have presented, the information you provided during your predecisional enforcement confer- -ence, and Florida Power Corporation’s (FPC) investigation results, we have concluded that formal enforcement action against you is not warranted. This decision is based, in part, on the extent of FPC management's responsibility and culpability. . . . . . . . Nevertheless, as a Shift Supervisor, we would have expected you to have raised your concern higher within FPC. You could have raised the issue to either the Regional Office or NRC Headquarters. Rather than pursue other avenues, you authorized your crew to perform a test that was not described in the Final Safety Analysis Report by using a procedure that had not been designed for data gathering purposes. We further recognize that your operating crew contributed to the determination that the curve for maximum make-up tank pressure was in error and nonconservative and that the plant had been periodically operated outside its design basis. You also provided additional data that assisted in determining the extent to which operators were violating OP-103B, Curve 8, and the environment that existed at FPC. Neverthe- less, we emphasize that the ends cannot justify the means... . You no longer possess an NRC operator’s license. This experience should emphasize to you the importance of not taking unilateral action such as conducting unauthorized evolu- tions. App. 49 RX 61, Letter From NRC to D. Fields, Dated July 10, 1996.5 . 23. The NRC determination of violation letter directed to Complainant Stewart states As a reactor operator, you were licensed to direct the controls of the Crystal River Nuclear Power Plant. You were specifically involved in the planning and implementation of the unauthorized evolutions conducted on Septem- ber 4 and 5, 1994. We conclude, based on the information developed during the inspections and investigations and the information you pro- vided during the conference, that unauthorized evolutions conducted by you and your crew on September 4 and 5, 1994, constituted a violation of Commission requirements. Performance of an unauthorized evolution affecting safety systems is a significant viola- tion. However, after considering the results of the OI investigations, the various written sub- mittal and affidavits you and your attorneys have presented, the information you provided during your predecisional enforcement confer- ence, and Florida Power Corporation’s (FPC) investigation results, we have concluded that formal enforcement action against you is not warranted. This decision is based, in part, on the extent of FPC management's responsibility and culpability. .. . > Also attached as Exhibit 61, is the NRC letter to Complainant Weiss, which is, for all intents and purposes, virtually identical to Complainant Fields’ letter. App. 50 .... Nevertheless, as a licensed reactor operator in the position of Chiet Nuclear Operator, we would have expected you to have raised your concern higher within FPC. You could have raised the issue to either the Regional office or NRC Headquarters. Rather than pursue other avenues, your crew performed a test that was not described in the Final Safety Analysis Report by using a procedure that had not been designed for data gathering purposes. We fur- ther recognize that your operating crew contrib- uted to the determination that the curve for maximum make-up tank pressure was in error and nonconservative and that the ple.t had been periodically operated outside its design basis. You also provided additional data that assisted in determining the extent to which operators were violating OP-103B, Curve 8, and the environment that existed at FPC. Neverthe- less, we emphasize that the ends cannot justify the means... . You no longer possess an NRC operator’s license. Should you apply for a license in the future, this experience should emphasize to you the importance of raising issues to higher man- agement and the NRC rather than taking uni- lateral action such as conducting unauthorized evolutions. RX 62, Letter From NRC to J. Stewart, Dated July 10, 1996. 24. In response to these letters, the attorney represent- ing Complainants Fields and Weiss wrote the NRC that his clients were “gratified to see that the NRC’s final ruling on the ‘MUT Issue’ concluded that ‘enforcement is not warranted’ and no Notice of violation is being issued. The plant operators believe that the blame for the episode App. 51 is appropriately being placed squarely on the shoulders of the Florida Power Corporation.” CX 67, Letter From R. Hendrix to NRC, Dated July 19, 1996, at p. 1. The attorney continues, however, to express dissatisfaction with the language in regards to “unauthorized tests” and the oper- ators’ failure to meet standards for nuclear power plant operators. Accordingly, the attorney requested a hearing to appeal the NRC findings. CX 67, supra. A similar letter was addressed to the NRC on Complainant Stewart's behalf. CX 67, supra. 25. The NRC’s response to both letters stated that a request for appeal is premature, given the fact that the NRC had not yet taken any enforcement action directly against the Complainants and that the NRC would not rescind its letter describing findings of unauthorized tests. See CX 67, Letter From NRC to R. Hendrix, Dated August 23, 1996; Letter From NRC to B. Morris Dated September 9, 1996. III. Conclusions of Law The resolution of Respondent’s Motion for Summary Decision and/or Dismissal hinges upon the interpretation of §5851(g) of the Energy Reorganization Act. That Sec- tion provides © Although Respondent has also moved for partial summary decision and/or dismissal on the Fields and Weiss complaints based upon the applicable statute of limitations, this Judge does not reach a determination of that issue because of the §5851(g) defense. App. 52 Subsection (a) of this section shall not apply with respect to any employee who, acting with- out direction from his or her employer (or the employer’s agent), deliberately causes a viola- tion of any requirement of this chapter or of the Atomic Energy Act of 1954... 42 U.S.C. §5851(g). (Emphasis added) The section serves as a bar to a complainant’s ERA claim once it is determined that he or she has caused a deliber- ate violation of the ERA or AEA. See English v. General Elec. Co., 683 F.Supp. 1006, 1014 (E.D.N.C. 1988), aff’d on other grounds, 871 F.2d 22 (4th Cir. 1989), rev’d on other grounds, 496 U.S. 72 (1990); Dotson v. Anderson Heating and Cooling, Inc., 95-CAA-11 (Sec’y July 17, 1996), (ALJ October 2, 1995). The legislative history reveals that “in order to avoid abuse of the protection afforded under [the ERA], the committee has added a provision which would deny its applicability to any employee who, without direction from his employer, deliberately violates or will- fully contributes to a violation of any standard, require- ment, or regulation under the act.” S. Rep. No. 848, 95th Cong., 2d Sess. 30 (1978), reprinted in 1978 U.S.C.C.A.N. 7303, 7304. The meaning of the section is rendered unclear inasmuch as the statute does not include defini- tions of the pertinent terms. On the one hand, Respondent argues the section should be interpreted to require only that Complainants deliberately committed an act which resulted in a viola- tion of the relevant law. According to this interpretation, Respondent argues, it would be irrelevant whether Com- plainants knew that the act they deliberately committed was illegal. App. 53 On the other hand, Complainants argue the statutory language must he interpreted to require a complainant know’ his acts are illegal. Complainants, noting that there is “no authority that a mere violation of nuclear safety regulatory regulations justifies discriminatory conduct,” Complainants’ Response, p. 8, would have this Adminis- trative Law Judge apply an NRC regulation in interpret- ing §5851(g).8 As Complainants summarize in their response to Respondent’s Motion, the deliberate miscon- duct standard of the NRC regulation requires an inten- tional act or omission that the person knows constitutes a violation of nuclear regulatory requirements. Complain- ants’ Response, p. 9. It is a basic tenet of statutory construction that if statutory language is clear and unambiguous on its face then it must be given its plain meaning and no resort to the underlying legislative history is appropriate. See Generally Kansas Gas & Elec. Co. v. Brock, 780 F.2d 1505, 1510 (10th Cir. 1985), cert. denied, 478 U.S. 1011, 106 S. Ct. 3311. As has been previously mentioned, the 7 Whether Complainants intend to suggest an actual or constructive knowledge standard is irrelevant because, as is more fully discussed below, I find that the statute does not require a complainant have knowledge of the illegality of his action(s). 8 The NRC regulation can be found at 10 C.ER. 50.5(c). Pursuant to this regulation, certain persons, as defined at 50.5(a), in the nuclear industry are subject to enforcement action in accordance with 10 C.F.R. Part 2, subpart B, for engaging in deliberate misconduct that causes a violation of law or NRC regulation. Deliberate misconduct is defined as “an intentional act or omission that the persons knows” would cause or constitutes a violation of law or regulation. 10 C.F.R. 50.5(c). App. 54 statute at issue does not define the terms “deliberately causes.” Accordingly, the anatomy of the statute itself, legislative history, and underlying policy wiil aid in the resolution of the issue. See Generally Kansas Gas & Elec. Co., 780 F.2d at 1511. 42 U.S.C. §5851, et seq., was designed as “an admin- istrative procedure” to “offer[ ] protection to employees who believe they have been discriminated against as a result of the fact that they have testified, given evidence or brought suit...” under the AEA or the ERA. English, 683 F.Supp. at 1013 (Citation Omitted). “Employee protec- tion was the paramount congressional intent.” Id. The purpose of the statute is to avoid a nuclear catastrophe by encouraging employees in the nuclear power industry to report perceived safety violations in good faith without fear of retribution or retaliation. See, e.g., Rose v. Secre- tary of Labor, 800 F.2d 563, 565 (6th Cir. 1986). It has also been opined, however, that there is “a well defined and dominant national policy requiring strict adherence to nuclear safety rules. . . . Nothing could he plainer than the public interest in the safe operation of nuclear power plants that underlies [the] panoply of federal regula- tions.” Iowa Elec. Light & Power v. Local Union 204, 834 F.2d 1424, 1427-28 (8th Cir. 1987). To compound the challenge of interpreting the stat- ute, the case law interpreting §5851(g) is sparse at best. Most of the cases which could be found concerned issues of preemption, see English, supra p. 9; a few cases men- tioned the section in only a passing reference, see Kansas Gas & Elec. Co., 780 F.2d at 1510; another case resolved the issue by finding that the section did not bar the complaint because it was found that complainant neither Niles ot io EI EE So 2 App. 55 knew about nor condoned the illegal act, Creekmore v. ABB Power Sys. Energy Services, Inc., Decision & Remand Order (Sec’y February 14, 1996) (remanded on other grounds); and, finally, another case held that com- plainant’s admission of reading provided answers out loud during an EPA mandated examination was sufficient to determine that complainant deliberately participated in an activity which violated the Act. See Dotson, supra p- 10 (adopting the ALJ’s Recommended Decision Dis- missing Complaint October 2, 1995). There are a few cases wherein §5851(g) was discussed in an Administrative Law Judge’s Recommended Deci- sion & Order. The discussions, however, were rendered dicta because the subsequent Final Order by the Secretary dismissed the complaints on timeliness grounds. See Hadden v. Georgia Power Co., 89-ERA-21 (Sec’y Febru- ary 9, 1994), (ALJ May 21, 1990); McKinney v. Tennessee Valley Auth., 92-ERA-22 (Sec’y November 16, 1993), (ALJ March 17, 1992); English v. General Elec. Co., 85-ERA-2 (Sec’y February 13, 1992), (ALJ August 1, 1985). I am unable to give the recommendations rendered by the ALJs in the above-cited cases any precedential value because the Secretary, the body with the power to issue final decisions in these cases, has rendered a decision on other grounds. Complainant has accurately pointed out that there exists provisions similar to 42 U.S.C. §5851(g) in a number of other Federal statutes. See Complainants’ Motion, n.18 (Citing 15 U.S.C. §2622(e) (Toxic Substances Control Act); 33 U.S.C. §1367(d) (Water Pollution Control Act); 42 U.S.C. §300j-9(i)(6) (Safe Drinking Water Act); 42 U.S.C. §6971(d) (Solid Waste Disposal Act); and 42 App. 56 U.S.C. §7622(g) (Clean Air Act)). The Senate Report accompanying the ERA provision that was ultimately enacted notes that the ERA provision is substantially identical to the provisions in the Clean Air Act and the Federal Water Pollution Control Act. See S. Rep. No. 848, 95th Cong., 2d Sess. 30 (1978), reprinted in 1978 U.S.C.C.A.N. 7303. I have attempted to locate precedent interpreting the analogous provision in either or both of these statutes and have been similarly met with discour- aging results. See Jackson and Roskam v. Ketchikan Pulp Co., 93-WPC-7 and 8, at n.3 (Sec’y March 3, 1996), (ALJ March 10, 1994) (stating the Secretary assumes, “without deciding, that [Complainant’s] attempt to dis- pose of a cable into the water did not exclude him from protection under the WPCA”); Pooler v. Snohomish County Airport, 87-TSC-1, at n.14 (Sec’y February 14, 1994), (ALJ March 10, 1988) (in which the Secretary declined to address the arguments pertaining to §2622(e) because it was not relied upon in the AL)J’s final analysis). Respondent’s argument is premised upon the Secre- tary’s adoption of the ALJ’s decision in Drew v. Jersey Central Power and Light Co., 81-ERA-3 (Sec’y January 13, 1984), (ALJ June 16, 1982). In Drew, the respondent was attempting to bar Complainant’s claim by invoking §5851(g). The Secretary held that there was no substantial evidence that Complainant deliberately caused any viola- tion of any requirement of the law. The Secretary stated that on both occasions of the illegal acts,? Complainant 9 The acts occurred on two occasions: (1) Complainant repaired a defective valve without a prior written approval of the welding procedure, and (2) Complainant retained an original copy of an internal non-conformance report. App. 57 believed he was acting properly. I am unable to discern the Secretary’s reascning from the text of the decision itself, which dis#oscs of the §5851(g) issue in a short one paragraph. The fs case, therefore, provides me little guidance in the present task. In support of Complainants’ argument is a Court of Appeals decision from the Eighth Circuit. See Iowa Elec. Light & Power, 834 F.2d 1424. The issue in the Iowa Electric case was whether the respondent would have to reinstate a complainant who was discharged for deliber- ately violating important federally mandated safety regu- lations. The Court stated “we are not concerned with what [Complainant] says he did not know about the details [of the federal regulation]. It is enough that he did know that he was short circuiting an important safety system required by the federal government as a measure to protect the public... .” Id. at 1426. It was only in considering whether the violation was excusable, so as to warrant reinstatement, that the Court noted the violation was serious and knowing. Id. at 1429.10 Cognizant of this precedent, legislative history, and public policies, I cannot adopt Complainants’ interpreta- tion of §5851(g). To do so would render the section vir- tually ineffectual because there is the potential that every complainant would deny knowledge that his deliberately 10 “The Court found the violation was serious and knowing by inferring complainant knew the safety rule and that the safety feature was important. After having been denied permission, complainant deliberately proceeded to defeat that safety system, thereby committing a knowing violation of the safety rule. Iowa Elec. Light & Power, 834 F.2d at 1429-30. App. 58 performed acts were violative of an ERA and/or AEA provision. Such an interpretation would be in contraven- tion of the purpose of §5851(g), which is to “avoid abuse of the protection afforded,” supra p. 10, because the protection of section (g) would depend greatly upon the veracity of the complainant, the person whom the legisla- ture wanted to restrain from abusing the statute. Moreover, such an interpretation would create a stan- dard whereby complainants would be expected to make a determination, prior to doing an act, that the act would be violative of the ERA and/or AEA. These violations are adjudicated by this Office and/or determined by the NRC through investigations and hearings. It is, in fact, the rare case where an actor commits a violation knowing it to be a violation. It is, in fact, the common case where an act is committed that is later discovered to be a violation. This Judge finds Complainants’ argument that I should construe the “deliberately causes” language in §5851(g) similarly to the deliberate misconduct language in 10 C.FR. 50.5(c) to be without merit. My reasons for this are twofold. First, the language of the regulation specifically states it is supplied “for purposes of para- graph (a)(1) of” that section. Secondly, there is no similar definition in the Employee Protection section of the NRC regulations. See Generally 10 C.F.R. 50.7. The language of the NRC’s Employee Protection regulation actually mirrors the language of the ERA. See 10 C.F.R. 50.7(a)(3). Furthermore, I see no reason to apply the definition of deliberate misconduct to the definition of deliberately causes because these are two distinct concepts. App. 59 My interpretation of the statute is further supported by considering the common usage of the words which are the center of the present dispute. A respondent must establish complainant deliberately caused a violation, i.e., a respondent must establish a complainant, fully aware of what he or she is doing and with careful and unhurried consideration, see Webster’s Dictionary, brought into existence, id., a violation of the ERA or AEA. It is by substituting these common definitions for the statutory words “deliberately causes,” that it becomes even more evident that there is no requirement that respondent show complainant had “knowledge” that the act would be illegal. See Generally Dysert v. Florida Power Corp., 93-ERA-21 (Sec’y August 7, 1995) (wherein the Secretary looked, in part, to the common usage of the word “dem- onstrate” to resolve an issue of statutory interpretation). This is not to say that respondents in general should have an easy case of making out the §5851(g) affirmative defense. See Jackson and Roskam, supra p. 13, (describ- ing 33 U.S.C. §1367(d) as an affirmative defense); Hadden, supra p. 13, (describing 42 U.S.C. §5851(g) as an affirmative defense).!! Applying the Secretary’s analysis in Jackson and Roskam to the circumstances of this case, Respondent would have to prove (1) that the act was done without direction from the employer, (2) that Com- plainants deliberately did an act, and (3) that the act 11 The ALJ’s recommendation in Hadden describes §5851(g) as an affirmative defense. As previously mentioned, the ALJ’s decision is deprived of its precedential value because of the Secretary’s subsequent decision dismissing on timeliness grounds. It is cited on this point only for its persuasiveness. App. 60 caused a violation of ERA or AEA requirements. See Generally Jackson and Roskam, supra p. 13. Respondent Florida Power Corporation has met its burden of establishing the §5851(g) affirmative defense in this case. Furthermore, Respondent is entitled to have this claim disposed of by summary decision because all facts relevant to this defense have been conclusively established. As is more fully discussed below, there exists no genuine issue of material fact which would prevent an entry of dismissal on the basis that Complainants deliber- ately caused a violation of law. I will now apply this law to the irrefutable facts of the case at hand. Complainants did not consult with the CR-3 Engineering Department before conducting their acts, either on the 4th or the 5th, Weiss Depo., p. 10; nor did they consult management or the Shift Manager regarding their acts, Fields Depo., pp. 52, 80, 418-25; Weiss Depo., pp. 83-84, 88-89, 253; RX C, Affidavit of Gregory Halnon, para. 5; RX D, Affidavit of Bruce Hickle, para. 4; nor did they consult the NRC, Weiss Depo., p. 253; CX 66, NRC Investigative Interview of R. Weiss, August 31, 1995, p. 19. Complainant Fields does not argue that he performed these acts at the direction of manage- ment. Complainant Stewart, however, has stated that he spoke with his management, referring to Complainant Fields, the nights of September 4 and 5. Stewart Depo., pp. 25, 27, 122. Complainant Stewart describes himself as a “lowly guy,” who believed Complainants Fields and Weiss were working with the Manager of Nuclear Opera- tions, Greg Halnon, all along to resolve the problem presented by Curve 8. Stewart Depo., p. 121-22. Stewart App. 61 states that if Complainant Fields ordered him to do some- thing and Stewart did not see it as an undue risk to the plant, he would do it because Fields had the authority to order him to do it. Stewart Depo., pp. 9-10, 36. Of course, Complainant Stewart admits that neither Complainant Fields nor Complainant Weiss told him that they had talked with Greg Halnon; Bruce Hickle, Director of Nuclear Plant Operations; or Dr. P.M. Beard, Senior Vice-President of Nuclear Operations, about the tests. Stewart Depo., p. 123. Stewart describes the issue of the validity of Curve 8 as being closed out by management if the crew did not come up with some information to feed back to engineering. Stewart Depo., pp. 12, 164-65. Fur- thermore, Stewart states that Van Sicklen was one of the principal engineers of the curve challenge on the 4th. Stewart Depo., pp. 39-40. In fact, Stewart describes that sometime in the middle of the shift on the 5th, Fields, Weiss and Van Sicklen suggested trying the evolution again.'!2 Stewart Depo., pp. 68-69. Stewart admits that if no procedural guidance allowed the crew to perform the 12 Stewart initially attributes the idea to again conduct the evolution on the 5th to Weiss and Van Sicklen. He later includes Fields in the group who originated the idea. Of course, during his OI interview, Stewart seems to indicate that the idea to conduct the evolution was more of a group decision. See RX 55, NRC 01 Interview of J. Stewart, December 1, 1994, p. 7 (“And we talked about the whole situation, said, well, what can we do that could bring to light what we’re doing, you know, what our concerns are here. And it was suggested that we put the make- up tank on the curve”). For purposes of this Motion, I must construe this evidence in the light most favorable to Complainants. Therefore, I will assume the idea to re-run the : evolution on the 5th came, in part, from Complainant Fields. App. 62 acts, it would have been necessary to notify management. Stewart Depo., p. 27. This Administrative Law Judge, assuming all facts in the light most favorable to Complainant Stewart, still cannot find that he acted at the direction of his Employer as is contemplated by §5851(g). At the very least, Stewart knew the idea of challenging Curve 8 originated with Van Sicklen, who proposed it to Complainants Fields and Weiss. At the very least, Stewart knew the proposed acts originated with and remained within the knowledge of his fellow crew. Given this minimal knowledge and the fact that the proposed acts were to be performed on a primary safety mechanism, Complainant Stewart should realistically have seen the undue risk to the plant and sought management approval. The outcome of Complainant Stewart’s claim that he performed these acts at the direction of management may have been different if there were some evidence to the effect that Stewart believed Fields was taking direction from upper management. From the testimony of Stewart himself, however, it is clear that he was aware that the original idea to challenge the Curve came from Van Sick- len. In addition, it is only logical to conclude that Stewart was aware that the evolutions were not directed by man- agement based on his testimony that the evolutions were necessary to produce data that would prevent manage- ment from closing out the issue of Curve 8. Any similar argument advanced by Complainant Weiss is similarly insufficient for this Administrative Law Judge to conclude that Complainant Weiss was acting at the direction of his employer. In his OI interview, Weiss ae App. 63 states Van Sicklen came to him when the Curve 8 issue appeared to be getting closed out and asked Weiss to perform acts to verify the curve. See RX 53, p. 7. See Also Weiss Depo., p. 127. Weiss then discussed the idea with Fields. Weiss also states that the attempts to resolve the concerns about Curve 8 were running “into a brick wall” and that when “nothing happens, then someone’s got to do something at that point.” CX 66, supra para. 18, at p. 49. This Administrative Law Judge, having determined that the acts performed by Complainants on the 4th and Sth were not directed by the Respondent, will now deter- mine whether Complainants’ acts were deliberate. Com- plainant Weiss himself succinctly stated during deposition that the decision to challenge Curve 8 was a deliberate and intentional decision. Each Complainant has affirmed, under oath, that the reason they conducted the acts was to challenge the validity of Curve 8. The Complainants allowed the annunciator alarm to remain in alarm status for extended periods of time in order to collect the data they perceived they needed to convince Engineering of the invalidity of Curve 8. The evidence before this Administrative Law Judge concerning the issue of Complainants’ deliberateness is overwhelming and I will simply refer to the Summary of the Evidence, paras. 4, 6, 7, 8, and 10. Finally, it is necessary to determine whether the deliberate actions caused a violation of the ERA or AEA. Respondent argues “the undisputed facts establish that the Complainants unquestionably violated the terms of their operator licenses by intentionally performing two unauthorized tests on the MUT.” Respondent’s Motion, p. App. 64 26. The facts upon which Respondent relies in presenting this argument are the NRC Notice of Violation issued to Respondent together with its enclosures, RX 58; the NRC findings, RX 61 and 62; and the NRC OI findings, RX 63 and 64. Respondent suggests “because the NRC has the sole authority to make such determinations, they are binding upon and cannot be second-guessed or excused by another tribunal, including the Department of Labor.” Respondent’s Motion, p. 28, n.24. I call this quotation a “suggestion,” rather than an argument, because it is made as a passing statement in a footnote and is not supported by any legal authority. Complainants, of course, argue that whatever the NRC findings may constitute, they do not constitute a finding of deliberate misconduct as defined in 10 C.F.R. 50.5(c), which is the standard Complainants wish to have incorporated into §5851(g). In addition, Complainants stress the fact that this ALJ is not bound by the NRC’s conclusions. Complainants’ Response, p. 15, n.8 (Citing Creekmore, 93-ERA-24 (Dep. Sec’y February 14, 1996), p. 4 (in which the Deputy Secretary opined “the [NRC] investigation report is a relevant public document of a Federal agency and I will take notice of it”)). In Creek- more, the Deputy Secretary reviewed the evidence of record and concluded that he disagreed with the findings of the NRC. The gravamen of Complainants’ argument on this point is that while Complainants may have violated NRC regulations, they did so unknowingly. This is supported by Complainant Fields’ written statements which state, “If I had realized that the curve represented a design basis, I would not have authorized performance of the ELEN MATA ONE II IP, AERA PAB SS SO I MPN IEP Mt PI Pw App. 65 test... . Although I regret performing the test and caus- ing a violation, I do not believe that this one event should be the downfall of a fifteen year career.” RX 32, supra para. 9, at p. 3. Complainant Fields also writes “Control room personnel performed an evolution in which we unknowingly violated a design basis curve without the proper procedural review.” RX 28, Interoffice Correspon- dence From D. Fields to J.A. Frijouf, Dated December 6, 1994, p. 2. In the case sub judice, I have arrived at the conclu- sion that the uncontroverted facts, as established by Com- plainants’ own testimony and various documents, support the NRC’s determination in regards to each Com- plainant. Accordingly, I have considered the NRC letters and reports and am persuaded by the findings therein. This Judge applauds the Complainants for their keen analysis which led to the discovery of a serious safety issue. I cannot, however, condone the method by which they chose to accumulate supporting data for their con- cern(s). As the NRC has stated, the ends simply do not justify the means. Therefore, I somewhat regretfully find that the evidence in this case conclusively establishes those facts necessary to a 42 U.S.C. §5851(g) defense. In conclusion, it is necessary to determine whether this defense bars all or part of the Complainants’ com- plaints. Complainant Fields filed a fifty-nine (59) page complaint in this matter, excluding supporting materials. Both Complainants Weiss and Stewart filed four (4) page complaints which incorporate the information and docu- mentation supplied by the Fields complaint. — App. 66 The Complainants allege Respondent retaliated against them as a direct result of their disclosure of violations of the Act, violations of NRC rules and regula- tions, and their initiation, assistance, and participation in actions which had commenced, or caused to be com- menced, a proceeding under the Act. See Fields Compl., 1 7; Weiss Compl., { 7; Stewart Compl., { 7. Complain- ants have argued that their complaints state a cause for protected activity distinct from and unrelated to the Sep- tember 4th and 5th tests.'° Specifically, Complainant Fields states he engaged in protected activity which can- not be barred by the §5851(g) defense when he reported serious safety concerns with regards to directives issued by Respondent’s management to maintain critical reactor support and emergency systems, when he insisted that Respondent not present misinformation on the Licensee Event Report, and when he attempted to avoid Respon- dent placing blame on the operators and the reporting of management's directives to operate on or near Curve 8. See Complainants Motion for Reconsideration and Clari- fication, {{ 2 (Citing Compl., { 3), 12, 16.'* Accordingly, Complainants argue that the §5851(g) defense does not operate to bar their entire complaints. 13 See Complainant Fields’ Motion for Reconsideration and Clarification, { 1; Complainants Weiss and Stewart Motion for Reconsideration and Clarification, { 2. These Motions, although prematurely filed, have been considered by this Administrative Law Judge. 4 Although Complainants Weiss and Stewart are not as clear as to their allegation of other protected activity, their Motion for Reconsideration and Clarification might be read to encompass the same acts as those enumerated by Complainant Fields. App. 67 Assuming, as this Judge must, that Complainants actually engaged in all of these actions,’5 it is not possible to allow any part of their complaints to survive. Section 5851(g) acts as a complete bar to subsection (a) relief. See supra, p. 10. See Also English v. General Elec. Co., supra p- 10. The defense is unqualified, and logically so. Com- plainants attempt to disentangle their alleged additional protected activities from the September 4th and 5th tests is made in vain. Each of the alleged protected activities which pre-date the tests were related to the Curve 8 issue and, as Complainants have stated, resulted in the tests which violated NRC regulations. See Motions for Recon- sideration and Clarification, {| 2. Finally, the alleged protected activities which post-date the tests would not have happened but for the occurrence of the tests. It is, therefore, determined that the complaints, in their entirety, have been barred. 8 In considering this Motion for Summary Decision, this Judge must view the facts in the light most favorable to the nonmoving party. I will note that the evidence renders Complainant Fields’ contention that he personally “reported” safety concerns with regards to management directives to maintain critical reactor support and emergency systems to be somewhat dubious. See Motion for Reconsideration and Clarification, {{ 2 and 4. Cf. Fields Depo., pp. 6, 1. 25 - p.7, 1. 6; p- 7, ll. 20-24; p. 8, ll. 3-12; p. 21, Il. 13-25; p. 23, 1. 10 - p. 24, 1. 3; p- 29, ll. 13-25; p. 30, ll. 1-5; p. 31, L. 21 - p. 32, 1. 6. For purposes of this Motion, however, this Judge shall assume that Complainant Fields did, in fact, personally engage in this “reporting.” App. 68 IV. Conclusion Based on the foregoing, I hereby recommend that Respondent’s Motion for Summary Decision be GRANTED. [| base this recommendation upon an applica- tion of the uncontroverted facts to an interpretation of 42 U.S.C. §5851(g) which is consistent with that section’s legislative history and underlying policy; consistent with the common usage of the relevant terms; and consistent with what little case law there exists interpreting the section. /s/ David W. Dinardi DAVID W. DINARDI Administrative Law Judge NOTICE: This Recommended Decision Dismissing Com- plaint and the administrative file in this matter will be forwarded for review to the Administrative Review Board, U.S. Department of Labor, Frances Perkins Build- ing, Room S-4309, 200 Constitution Avenue, N.W., Wash- ington D.C. 20210. DWD: jw: gcb SERVICE SHEET Case Name: David A. Fields, et al. Case No.: 96-ERA-22 Title of Document! RECOMMENDED DECISION & ORDER GRANTING RESPONDENT’S MOTION FOR SUMMARY DECISION i dni, eens a RRR. i tGrent ts eat tee aft itt ine teakeueemeemaaaee t 3 App. 69 This is to certify that a copy of the above-named document was sent to the following interested parties on MAR 11 1997 Employment Standards Admin. Wage & Hour Division U.S. Department of Labor Room S-3502, FPB 200 Constitution Ave., NW Washington, DC 20210 Deputy Associate Solicitor Division of Fair Labor Standards Office of the Solicitor U.S. Dept. of Labor Room N-2716 200 Constitution Ave, N.W. Washington, D.C. 20460 Director, Office of Enforcement Nuclear Regulatory Commission Washington, D.C. 20555 Deputy Asst. Gen. Counsel/Enforcement Office of the General Counsel Nuclear Regulatory Commission Washington, D.C. 20555 Director, Enforcement & Investigation Coordination Staff U.S. Nuclear Regulatory Comm. Region II, Suite 2900 101 Marietta Street, NW Atlanta, GA 30323 Barry J. Lentz Wage & Hour Division U.S. Department of Labor/ESA 4905 W. Laurel Street, Ste. 300 Tampa, FL 33607 App. 70 David A. Fields 7347 Applewood Drive Inverness, FL 34450 Robert P. Weiss 7665 W. Laura Lou Lane Dunnellon, FL 34433 Jack D. Stewart 940 NE 4th Avenue Crystal River, FL 34428 Rodney E. Gaddy, Esq., Corp. Counsel Florida Power Corporation 3201 34th Street South St. Petersburg, FL 33733-4042 David D. Dickey, Esq. (via fax and mail) de la Parte, Gilbert & Bales One Tampa City Center Suite 2300 P.O. Box 2350 Tampa, FL 33601-2350 Morris Weinberg, Jr., Esq. (via fax and mail) Zuckerman, Spaeder, Taylor & Evans Barnett Plaza 101 East Kennedy Boulevard, Suite 3140 Tampa, FL 33602 Office of General Counsel Deputy Assistant General Counsel for Enforcement 11555 Rockville Pike Rockville, MD 20852 App. 71 INTEROFFICE MAIL Reporter /s/ Gayle C. Bonia GAYLE C. BONIA Legal Technician te ALEAIANN he ibh iE “ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0106%3A1. Public record. Not legal advice.