Employee Protection from Employers for Revealing Safety Violations

HPPOS-141 PDR-9111210379

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