Amicus Curiae Brief — Doyle v. Hydro Nuclear Services

Z Supreme Court, U.S.

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No. 02-297 ~ SEP 25 202

OFFICE OF THE CLARK

In the ethane

Supreme Court of the United States

SHANNON T. DOYLE,

Petitioner,

Vv.

Hypro NucLeaR SERVICES,

Respondent.

On Writ OF CERTIORARI TO

Tue UNITED STATES Court OF APPEALS

For THe Tuirp Circuit

BRIEF OF AMICI CURIAE, PHILADELPHIA

AREA PROJECT ON OCCUPATIONAL

SAFETY AND HEALTH and

NEW JERSEY WORK ENVIRONMENT COUNCIL

IN SUPPORT OF PETITIONER

JEROME BALTER

Counsel of Record

PuBLIC INTEREST LAW CENTER

OF PHILADELPHIA

125 S. 9TH STREET, 7TH FLOOR

PHILADELPHIA, PA 19107

(215) 627-7100

Counsel for Amici Curiae

BECKER GALLAGHER LEGAL PUBLISHING, INC.,

CINCINNATI, OHIO 800-890-5001

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ........ ACER eAe RN ii

I. INTEREST OF THE AMICI CURIAE ...... 1

II. STATEMENT OF THE CASE ............ 4

Ill. SUMMARY OF ARGUMENT ............ 5

oe. | Sc ks es oe eee ee ORS 6

. THE JUDGEMENT OF THE COURT OF

APPEALS THREATENS HEALTH AND

SAFETY OF ALL AMERICANS .......... 12

2 Se ke a ee ke eee ee 16

EXHIBIT A: LETTER FROM NRC TO

HNS DATED DECEMBER

26, 1995

AFFIDAVIT OF JEROME BALTER, ESQUIRE

TABLE OF AUTHORITIES

CASES

Doyle v. Secretary of Labor,

No. 00-1589 (3d Cir. 2001) ............. 4

fie V. 5.0 ee OF Ce Or . 6 e eeeees ee 14

Hydro Nuclear Services, Inc. v. Secretary of Labor,

PD: DE 656 ESS 0 Eee 4

Lawson v. Fortis Insurance Company,

No. 01-3316 (Sl.Op.) (3d Cir. 2002) ........ 7

Walsh v. Schiect, 429 U.S. 401 2... ccc cw cee es 7,8

STATUTES

The Atomic Energy Act of 1954, 42 U.S.C. § 2011 .. 3,6

Davis-Bacon Act, 40 U.S.C. GZ76 2 ww ee ee ee 7,8

The Energy Reorganization Act (Nuclear Power Plants)

oe ee fy eer ee passim

The Asbestos Hazard Emergency Response Act

pRB RS Oe ek | eee eee ee ee 11

The Clean Am Act 42 U.S.C. § FORE «oc ee ene wae 11

The Comprehensive Environmental Response,

Compensation and Liability Act

ee | Pr ee er rare 11

li

The Federal Water Pollution Control Act

ee

The International Safety Container Act

oe a

The Occupational Safety & Health Act of 1970

| ee ae

The Safe Drinking Water Act 42 U.S.C. § 300j-9

The Solid Waste Disposal Act 42 U.S.C. § 6971

The Surface Transportation Assistance Act

oe OR

The Toxic Substances Control Act

8 a ys Se

The Wendell H. Ford Aviation Investment and

Reform Act for the 21st Century

eS > ) a

RULES

a eka og Se a oe a wl ws

4 ee

ili

MISCELLANEOUS

The Common Law, Oliver Wendell Holmes, 1881. .... 16

Nuclear Regulatory Commission,

PUT BE nc eee wseee 10

iV

I. INTEREST OF THE AMICI CURIAE! ©

The Philadelphia Area Project on Occupational Safety

and Health (PHILAPOSH) is a non-profit organization of 150

local unions representing approximately 150,000 workers in

the greater Philadelphia area. Established in 1975, it has

provided education and training about job safety and health

rights to tens of thousands of workers in its 27 year history.

These educational programs include instructions about the

statutory legal rights of workers under whistleblower statutes

enacted by Congress to protect workers from retaliation by

unscrupulous employers when workers report unsafe job

conditions to their employers or to the relevant federal

agencies.

The New Jersey Work Environment Council (WEC)

is a non-profit organization of 60 labor, community and

environmental organizations. WEC works for safe and

healthy workplace environments. Such environments cannot

be attained or maintained unless workers feel free to bring to

the attention of their respective managements or to the

relevant governmental agency, job safety concerns without

fear of employer retaliation.

Both PHILAPOSH and WEC support Shannon

Doyle’s petition for a Writ of Certiorari because the opinion

of the Third Circuit Court of Appeals would allow employers

' The parties have consented to the filing of this brief under S.Ct.

Rule 37.2 and the Letters of Consent have been lodged with the

Clerk of the Court. Pursuant to S.Ct. Rule 37.6, Amici state that

counsel for a party did not author the brief in whole or in part and

that no one other than Amici, their members or their counsel have

made any monetary contribution to the preparation or submission

of this Brief.

to intimidate workers into a belief that workers will not have

whistleblower protection if they were to report job safety

concerns to their respective employers or to relevant federal

agencies. Such beliefs adversely affect safety and health

conditions in the workplace and in the areas outside the

workplace.

II. STATEMENT OF THE CASE’

Petitioner Shannon Doyle, a resident of Alabama and

an experienced nuclear radiation decontamination technician,

was notified to report for work at the D.C. Cook nuclear

energy facility in Bridgeman, Michigan in November 1988

(A51-56, 66)°. On arrival at the D.C. Cook facility Doyle

was asked by his employer, Hydro Nuclear Systems (HNS),

a subsidiary of Westinghouse (A-51), to complete several

questionnaires and to endorse an “Authorization for Release

of Information and Records” (A45). Doyle completed the

questionnaires but objected to signing the HNS liability

“release” provision which read as follows:

Further, I hereby release and discharge Hydro

Nuclear Services, their representatives, and

their clients for whom the investigation is

being performed and any organization listed

above furnishing or receiving any information

pertaining to me from any and all liability or

claim as results of furnishing or receiving such

information pursuant to this authorization.

2 Amici adopt and supplement the Petitioner’s Statement of the

Case.

> References are to the Appendix attached to Petitioner’s Brief for

a Writ of Certiorari.

Hydro Nuclear Services is authorized to utilize

the information it obtains for the purpose of

evaluation [sic] my eligibility for clearance,

allowing unescorted access to Nuclear Power

Stations, as required by Government

regulations. (A-45)

Doyle’s objection to signing the HNS release was

based on his belief that it would eliminate his whistleblower

rights under the Energy Reorganization Act (ERA), 42 USC

§ 5851. The ERA reads as follows:

No employer may discharge any employee or

otherwise discriminate against any employee...

because the employee...notified his employer

of an alleged violation of this Act or the

Atomic Energy Act of 1954 (42 USC § 2011

et seq.).

Doyle, therefore, requested HNS to amend its release to make

clear that his endorsement would not cause him to lose his

whistleblower rights (A55). HNS refused to clarify the

release provision, Doyle refused to sign the release (A55) and

HNS terrainated Doyle’s employment (A55). Thereafter in

December 1988, Doyle filed an ERA complaint with the

Department of Labor alleging that HNS’ refusal to employ

_ him was a violation of the ERA statute (A30).

Six (6) years later, in 1994, the Secretary of Labor

published his Final Decision and Order on Doyle’s complaint

(A29 - A37) in which the Secretary decided that HNS had

indeed violated the ERA and he therefore ordered HNS to

offer employment to Doyle and to reimburse him for lost

income (A35).

The following year, in 1995, the Nuclear Regulatory

Commission (NRC), in its oversight capacity, issued a Notice

of Violation to HNS for refusing to employ Doyle in 1988

(A60, A61) and six months later, in December, 1995, the

NRC informed HNS that its release should be modified to

make clear to employees and job applicants that endorsement

of the HNS release does not affect their ERA rights. The

NRC told HNS that such a modification was necessary

because otherwise workers:

[might] be swayed by his or her signing of

such a waiver and discouraged from filing a

claim of discrimination.

Exhibit A.‘

Another seven (7) years later, in March 2002, 14

years after Doyle had first filed his ERA complaint, the Court

of Appeals for the Third Circuit, in a split decision, overruled

the Secretary’s decision and dismissed Doyle’s complaint

(A21). The Third Circuit denied Doyle’s request for a

rehearing. (A27, A28). Doyle has now filed a Petition for a

Writ of Certiorari for Supreme Court review of the Third

Circuit opinion.

* The NRC letter to HNS of December 26, 1995 is designated as

Exhibit A of this Brief. It was included in the record of Doyle v.

Secretary of Labor, No. 00-1589 and Doyle v. Hydro Nuclear

Services, Inc. v. Secretary of Labor, No. 00-2035 (3d Cir. 2001).

The letter was Addendum 14 of Doyle’s Brief in those actions.

4

Ill. SUMMARY OF ARGUMENT

The Supreme Court should grant Mr. Doyle’s Petition

for Certiorari because the split decision of the Court of

Appeals, if allowed to stand, will allow unscrupulous

employers to intimidate their workers and thereby make them

believe that they must waive their statutory whistleblower

rights in order to obtain and maintain employment and if they

do endorse the release they will be reluctant to report safety

and health conditions on the job to HNS or to the NRC.

A workplace where workers and management are not

cooperating to prevent injuries and fatalities is also a

workplace that adversely affects the health and safety of the

general public. And this situation is of particular significance

for facilities in the nuclear industry in the post September 11,

2001 period.

The HNS release is designed to intimidate HNS

workers. That was the view of Doyle, the Secretary of

Labor, the Nuclear Regulatory Commission and the dissenting

member of the Court panel which decided Doyle’s case. The

effect of the Court’s opinion is to endanger the health and

safety of these workers and the general public beyond the

facility. It is particularly dangerous because of the possibility

of terrorist activities at our nations’ nuclear facilities.

The Supreme Court should grant a Writ of Certiorari

to review the judgment of the Court of Appeals for the Third

Circuit.

in

Doyle’s complaint, whether analyzed as a matter of

statutory construction, as the Secretary of Labor did (A34),

or as a matter of contract law as the Court did (A17, fn. 14),

must be decided on the effect of the HNS release in relation

to the intent of the whistleblower statute. 42 USC § 5851.

The statute reads, in relevant part, as follows:

No employer may discharge any employee or

otherwise discriminate against any employee...

because the employee... notified his employer

of an alleged violation of this Act or the

Atomic Energy Act of 1954...

By considering Doyle’s complaint to be a matter of

contract law, the Court circumvented the need to defer to the

Secretary’s decision unless that decision was arbitrary or

Capricious or an abuse of discretion.

a

The Court ruled that the HNS release did not affect

Doyle’s whistleblower rights and that the release was

unambiguous. (A17, fn. 14). To reach these conclusions the

Court had to disregard Doyle’s interpretation of the release

(A51-A56); the Secretary’s interpretation (A29-A35); the

interpretation of the Nuclear Regulatory Commission (NRC)

(A57-61); the NRC’s instructions to HNS to modify the

release (Exhibit A), and the Court had to disregard the

opinion of its own dissenting Judge who wrote:

I would reject this release not just as a

violation of Mr. Doyle’s ERA Rights, but as a

violation of all employees’ rights. (Emphasis

added)

(A23)

How, in the light of all these contrary opinions, the

Court could declare that the HNS release was not ambiguous

the court did not reveal. Very recently the Third Circuit, in

Lawson v. Fortis Insurance Company, #01-3316, Sl. Op. p.

13 (3% Cir. August 22, 2002 ) set forth a common sense test

for determining whether an insurance policy provision was

ambiguous. This common sense rule holds that if there are

significantly different interpretations of the meaning of a

provision it should be deemed to be ambiguous. Applied to

the Doyle case this common sense rule would require the

Court to find the HNS release to be ambiguous though,

perhaps, leaning in the direction of the Secretary’s

interpretation.

ces

Though the Court’s judgment was based on its finding

that the HNS release was unambiguous it, nevertheless, put

forth a fall-back position if the release was considered to be

ambiguous. Under this view the Court declared that the

ambiguous release should not be construed so as to make it

illegal. The Court cited Walsh v. Schlect, 429 U.S. 401

(1977) in support of its argument but the Court’s

interpretation of Walsh was incorrect. The Walsh case

concerned a labor-management contract provision related to

the Davis-Bacon Act, 40 USC § 276(a), that established

minimum pay rates. The Supreme Court found the contract

provision to be ambiguous and then interpreted it so that it

7

served the intent of the Davis Bacon Act. Under that guide

the Court said that the Davis-Bacon Act:

was not enacted to benefit contractors, but

rather to protect employees from substandard

earnings.

429 U.S. at 411.

Had Doyle’s Court followed the teachings of Walsh v.

Schlect it would have been obliged to deem the HNS release

to be a violation of the ERA because the ERA was not

designed to benefit employers who use equivocal legal

language to circumvent the ERA and thereby to intimidate

their workers, but rather; the ERA’s intent is to protect

workers from employer retaliation and thereby to induce

workers to report matters of health and safety to their

employers and governmental agencies.

a@e

The Court accepted the HNS interpretation that it

required Doyle to sign the release in order to complete its

employment investigation of Doyle (A17, A18). To accept

HNS’ alibi it is necessary to close one’s eyes to the facts and

to disregard all logic. It is uncontested that Doyle voiced no

objection to HNS’ investigation of his employment

qualifications. When HNS requested a liability release from

Doyle he agreed to give it so long as he could be assured that

his endorsement would not affect his ERA rights (A54). If,

as HNS contends, the release was not intended to coerce or

intimidate and it was not intended to abrogate workers’ ERA

rights, HNS could have satisfied Doyle’s 1988 request in 15

minutes or less. Seven years later, in 1995, HNS was still

using the same release or a similar release and the NRC wrote

8

g

to HNS that the HNS release may cause an applicant for

employment “to be swayed by his or her signing of such a

waiver and discouraged from filing a claim of

discrimination,” (Exhibit A). The NRC then supplied HNS

with language to modify the HNS release which in relevant

part read as follows:

“This release neither waives the right to file a

complaint and obtain a remedy . . . nor does it

release anyone from liability for illegal,

discriminatory or prohibited acts under the

ERA . . . or other NRC regulations.”

Exhibit A.

The Court did not question why HNS, a year after the

Secretary’s decision in the Doyle case, had not invested

fifteen (15) minutes to modify its release provision so as to

ensure employees and job applicants that the release would

not cause them to lose their ERA rights. Instead of fifteen

(15) minutes HNS has been engaged in a fourteen (14) year

campaign against Doyle to maintain the HNS release in the

incomprehensible form they presented it to Doyle back in

1988.

= =

The Court declared that even if the HNS release was

a violation of the ERA it did not discriminate against Doyle

because HNS had not singled him out and had not treated him

less favorably than others similarly situated (A18). The ERA,

however, is intended to prevent employer retaliation against

any worker who reports job safety and health concerns to

management or the NRC. Whether Doyle was treated the

same as other employees is not the issue. The Court’s

9

opinion suggests that if an employer retaliates against each

and every worker who is so bold as to report job safety and

health problems, the employer would not violate the ERA.

Such an interpretation of the ERA is not believable; it is

without question a violation of the ERA. The ERA protects

each and every worker from employer retaliation whether or

not the employer is also in violation of other employment law

related to discrimination. Indeed the Secretary recognized

that the HNS release was an illegal threat to all workers

(A33).

The NRC uses the term “discrimination” to mean

“firing, reduction of pay, poor performance appraisals and

reassignment to a lower position or job (if it can be

established that these actions were taken by the [employer]

because a worker raised safety concerns.” (NUREG/BR-0240

Rev.1). NRC’s interpretation of “discrimination” in the ERA

is clearly different from that of the Court’s.

yo

The Court declared that Doyle and other workers are

obliged to sign the HNS release because if the release is

deemed to be illegal it would not be enforceable. Thus the

release could not have any adverse effect on Doyle’s ERA

rights (A16). This is truly a Heads I Win-Tails You Lose

situation.

The Court’s judgment that HNS had not violated the

ERA when it refused employment to Doyle required the Court

to employ some arcane legal theories, which most lawyers

might find difficult to follow. Yet the Court would expect

workers to appreciate these legal theories when applying for

employment with HNS or other establishments that require

endorsement of similar liability releases. It is doubtful that in

10

sense sepns tiie olin en

ati RES

pane eeS

enacting the ERA or similar whistleblower protective statutes

Congress expected workers would need the assistance of

attorneys or retired Judges to obtain employment.

x oe

Congress has assigned the Secretary of Labor to be the

administrator of the ERA and at least eleven other

whistleblower statutes.> The Secretary, thereby, is the most

knowledgeable and experienced government representative in

respect to whistleblower law enforcement. The Court’s

circumvention of the Secretary’s decision on the complaint of

Mr. Doyle opens the way for other Courts of Appeals to

> Laws with whistleblower protections administered by the

Secretary of Labor.

s The Occupational Safety & Health Act of 1970 29 USC §

660.

= The Surface Transportation Assistance Act 49 USC §

20109.

e The Asbestos Hazard Emergency Response Act 20 USC §§

3608, 4018.

® The International Safety Container Act 46 USC § Appx

1506.

= The Energy Reorganization Act (Nuclear Power Plants) 42

USC § 5851.

The Clean Air Act 42 USC § 7622.

The Safe Drinking Water Act 42 USC § 300j-9

The Federal Water Pollution Control Act 33 USC § 1367.

The Toxic Substances Control Act 15 USC § 2622.

The Solid Waste Disposal Act 42 USC § 6971.

The Comprehensive Environmental Response,

Compensation and Liability Act 42 USC § 9610

The Wendell H. Ford Aviation Investment and Reform Act

for the 21° Century 49 USC § 42121.

11

review the Secretary’s decision on a de novo basis, without

need to defer to the Secretary’s decision. Unless the Supreme

Court limits this type of circumvention it can be expected that

similar cases will produce conflicting rulings in the various

appellate districts and jeopardize the value of the extensive

whistleblower experience that the Secretary has accumulated

over the years.

On the basis of his whistleblower enforcement

experience the Secretary ruled that HNS had violated the

ERA (A35) and the NRC agreed with the Secretary. The

NRC found that HNS’ denial of employment to Doyle could

be intimidating and coercive and that HNS’ refusal to employ

Doyle violated the ERA. See (A57, A61) and Exhibit A.

The Secretary’s decision was not arbitrary or

capricious or an abuse of discretion. The Court should have

deferred to the Secretary’s decision.

V. THE JUDGEMENT OF THE COURT OF

APPEALS THREATENS HEALTH AND

SAFETY OF ALL AMERICANS

That worker/management cooperation is absolutely

necessary for preventing injury to workers and the general

public is revealed by recently published statistics. In the

most recent year for which data is available, the year 2000,

the Bureau of Labor Statistics reported that there were 5,915

occupational fatalities’ and over 110,000,000 occupational

injuries, more than 6 for every 100 workers.’

° http://www.bls.gov.iif.oshwe.cfoi.cftb141.txt

7 http://www.bls.gov/iif/oshwc/osh/os/osnr0013.txt

12

Many of these fatalities and injuries may not have been

prevented; but the Secretary of Labor and the Nuclear

Regulatory Commission recognize that worker/management

cooperation provides the best opportunity to undertake

preventive action to reduce injuries and fatalities. When

management, such as HNS, creates a coercive intimidating

atmosphere it is far less likely that their workers will bring

job problems and potential problems to the attention of

management and therefore it is far more likely that injuries

and fatalities will occur. HNS’ refusal to make a simple

modification to its release provision could not engender the

worker/management cooperation needed for making a safer

industrial environments.

The activities of workers in their places of work also

affect the safety and health of the general public. We are all

familiar with the great tragedy of Bhopal where in 1984 far

more people outside the Union Carbide plant died and were

permanently injured from the release of methyl isocyanate

than in the 9/11 terroristic attack on the World Trade Center.®

And we all know of the meltdown of the nuclear

energy plant in Chernobyl in 1986 where the people around

the plant were exposed to radioactivity 100 times greater than

the radiation exposure from the Hiroshima A-Bomb.?

And we should remember the Three Mile Island

(Pennsylvania) nuclear accident in 1979 when there was a

radiation leak from a partial meltdown and all pregnant

* http://www. bhopal.com/review.htm

* http://www.chernobyl.com/info.htm

13

women and preschool children living within five (5) miles of

the facility were evacuated.'°

We recall the spill of the Exxon Valdez in 1989 when

eleven (11) million gallons of crude oil spilled into Prince

William Sound, with disastrous effect to the environment, to

the food chain, to the birds and wildlife of that once pristine

area.

And we also are aware of rail and truck spills of

hazardous materials which not only affect the safety and

health of railroad employees and truck drivers but also affect

the health and safety of the surrounding public and causes

them to be evacuated.

The need for work/management cooperation to protect

nuclear plant workers is particularly important in the

aftermath of the terrorist attacks of September 11, 2001

because the affects of a terrorist attack on a nuclear facility

would be so catastrophic. Therefore workers should be

encouraged to report job conditions which may affect the

continuous safe operation of nuclear plants so_ that

management and the NRC have an early opportunity to

immediately investigate and undertake any necessary remedial

action. Such worker/management cooperation is not

encouraged by managements who insist on enforcement of

HNS type liability releases.

The need for worker/management cooperation in the

nuclear industry was recognized by the Secretary of Labor in

Hill v. T.V.R. 87 ERA 23, 24 (1989):

10 http://www.acsh.org/publications/reports/island_0399.html

14

In the nuclear power industry, given the

magnitude of the potential hazards to

employees and public safety and health, there

is an especially compelling need to keep open

the channels of communication regarding

potential safety and health violations.

What was true in 1989 is even more true today. The

dissenting Judge in the Doyle case also recognized the

disastrous effects that can result when nuclear plant workers

are concerned about both job safety and job employment.

Here is how he ended his dissenting opinion:

We have upheld an employer’s ability to make

its employees uncertain about the status of

their whistleblower rights. We have thereby

dealt a blow to the safety of the nuclear

industry.

(A24).

The health and safety of our nation in significant

measure depends on the safe operation of our industrial

workplaces. The ERA was enacted to provide workers the

right to participate with management in attaining and

maintaining safe workplaces. The Court of Appeals,

however, would enable managements to intimidate workers so

that they refrain from bringing safety or health problems to

management or the NRC, precisely the situation that the ERA

is intended to overcome. The Court of Appeals, thereby has

endangered the safety and health of the workers and the safety

and health of the public.

15

VI. CONCLUSION

Oliver Wendell Holmes, Associate Justice of the U.S.

Supreme Court from 1902 to 1932, in his lectures on the

Common Law, offered the following advice:

The life of the law has not been logic: it has

been experience. The felt necessities of the

time, the prevalent moral and political

prejudices which judges share with their fellow

men, have had a good deal more to do than the

syllogism in determining the rules by which

men should be governed.

The Common Law, Oliver Wendell Holmes, 1881.

Had the Court of Appeals for the Third Circuit been

guided by Holmes’ wisdom they would not, in the year 2002,

have reversed the decision of the Secretary of Labor of 1994.

The U.S. Supreme Court should grant Mr. Doyle’s petition

for a Writ of Certiorari so that it can reverse the opinion of

the Third Circuit and thereby protect the rights of Mr. Doyle

and the safety and health of all Americans.

~ PUBLIC INTEREST LAW CENTER

OF PHILADELPHIA

BY: JEROME BALTER

Counsel for Amici Curiae

PHILAPOSH and W.E.C.

16

UNITED STATES

NUCLEAR REGULATORY COMMISSION

WASHINGTON, B.C. 2465-000"

December 26, 1995

Patricia Stafiej, President

Westinahousa Staffing Services

P.O. Box 158

Madison, Pennsyl}vania 15663-0158

Osar Ms. Stafisj,

This is to peice ed ber receipt of your Septémber 16, 1995 latter concerning

the Notice of Violation (Kotice) issued by the Nuclear Regulatory Commi sston

on June 18, 1995 to Hydro Nuclear Services, The Notice was issued in the

matter of Shannon Doyle v. Hydro Nuclear Services, DOL Case Number 8S-ERA-022.

I note that Westinghouse denies the violation and that Westinghouse has

appealed the Secretary of Labor dacision ‘in the case to the Third Circuit

Court of Appeals. Tha NRC will monitor the Third Circuit pracesding and, if

the Secretary of Labor’s decision is overturnad, the NRC will reevaluate its

enforcement action.

With-respect to Westinghouse’s Access Authorization Programs Questfonnaire,

the NRC. notes that .the Secretary of Labor said that a "waiver of rights under

the [Energy Reorganization Act}. could not be raised by Raspondent as a

defense”: (Secretary oF Labor's Finat Decision and Order, Harch 30, 1994, at

6). However, the:epplicant for empleyment muy be swayed by his or har signing

‘of guch:a waiver. and. discouraged from filing a claim of discrimination,

thinking that the waiver prevented such a claim. You indicated in your letter

that the release ene) sgt question was and is not intended to preclude an

employes or prospective employes from bringing a claim of discrimination. Jo

make that clear te employees and prespective employess who ara raquired to

sign ths release, the NRC recommends that the Westinghouse Access | ,

Authorization Programs Questionngire be amended to-insert a sentence, after,

the phrase “information released in good fatth” as follows:

"This reloase neither waives the right to file a i and

obtain a remedy pursuant to the protection provided by Section 21)

of the Energy Reorganization Act (ERA) of 1974, 42 U.S.C. Saction

885], as amanded, nor does it release anyone from liability for

illegal, discriminatory or prohibited acts under the ERA, the

Atomic Energy Act, 10 CFR $0.7, or other NRC regulation.”

+ you have any questions on this matter, you may contact me at (301) 415-

2741.

Sincerely,

ie See

James Lieberman, Director

Office of Enforcement

EXHIBIT

ceived T 12. 10:08AM

Received Time Aus {= ATNEN

WYGO:1L 2UUc ‘oi 47s

NT

AFFIDAVIT

Commonwealth of Pennsylvania

County of Philadelphia

Jerome Balter, being of age and duly sworn according to the law, deposes and says he is

an attorney employed by the Public Interest Law Center of Philadelphia and that he represents the

Philadelphia Area Project On safety and Health (PHILAPOSH) and the New Jersey Workers

Environment Council (WEC), who are submitting an Amici Curiae Brief in behalf of Shannon T.

Doyle’s petition for a Writ of Certiorari.

The Amici Curiae brief includes Exhibit A, which is a letter of the Nuclear Regulatory

Commission (NRC) to Westinghouse Staffing Services (successor to Hydro Nuclear Services).

The NRC letter is dated December 26, 1995. The letter was not included in the appendix of the

petition Mr. Balter discovered the letter in a Brief dated May 1, 2001 submitted by Doyle in

Dovie v. Hydro Nu

clear Services #00-1589 and #00-2835. The Nuclear Regulatory Commission

letter of 12/26/95 was included as “Addendum #14" of that Brief.

M2.

Ié¢rdme Balter

Sworn to and Subscribed

before me this.2O day

of September, 2002

nt A WACD

heii PUBLIC

gota

TON Oe ee nnn amen mmm

_

NOTARIAL SEAL i

CYNTHIA A. WARFIELD, No 7

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of Philadephia Phila Coun

May 5, a(n?

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