U.S. Nuclear Regulatory Commission

Employee Protection from Employers for Revealing Safety Violations

HPPOS-141 PDR-9111210379

Title: Employee Protection from Employers for Revealing

Safety Violations

See the letter from J. M. Taylor to W. H. Owen (Duke Power

Company) dated June 30, 1986. The letter was written

concerning a Notice of Violation (NOV) for alleged

discrimination against an employee for engaging in

protected activities. The Evaluation and Conclusion

Appendix enclosed with the letter states that protected

activities include the reporting of QA discrepancies and

nuclear safety problems by an employee to his employer.

Employees are protected from retaliation and discrimination

for internal safety activities that involve no contact with

NRC.

A licensee had disputed the NRC's view that "protected

activities" under 10 CFR 50.7, as well as under paragraph

210 of the Energy Reorganization Act, include the reporting

of quality assurance discrepancies and nuclear safety

problems by an employee to his employer. The licensee

argued that an employee must contact the NRC "or some other

competent organization of government." The licensee based

its view on the decision of the U.S. Court of Appeals for

the Fifth Circuit in Brown & Root, Inc., v. Donovan, 747

F.2d 1029 (5th Cir. 1984), in which that court held that

"employee conduct which does not involve the employee's

contact or involvement with a competent organization of

government is not protected" under paragraph 210 of the

Energy Reorganization Act.

The NRC believes that the better view of "protected

activities" under paragraph 210 is that employees are

protected from retaliation and discrimination under the

statute for purely internal safety activities that involve

no contact with representatives of the NRC. The Ninth and

Tenth Circuit Courts of Appeals support this construction

of paragraph 210 and have rejected the analysis of the

Fifth Circuit Court (see Mackowiak v. University Nuclear

Systems, Inc., 735 F.2d 1159, 1162-63, Ninth Circuit 1984;

Kansas Gas and Electric Co. v. Brock, 780 F2.d 1505,

1510-12, Tenth Circuit 1985). The Commission follows this

view in the application of its own employee protection

regulations such as 10 CFR 50.7.

Regulatory references: 10 CFR 19.20, 10 CFR 30.7, 10 CFR

50.7

Subject codes: 12.1, 12.7, 12.13

Applicability: All