Stone & Webster Engineering Corp. v. Herman

Decision Date02 July 1997
Docket NumberNo. 95-6850,95-6850
Citation115 F.3d 1568
PartiesNuclear Reg. Rep. P 20,582, 133 Lab.Cas. P 10,005, 12 IER Cases 1806, 11 Fla. L. Weekly Fed. C 110 STONE & WEBSTER ENGINEERING CORPORATION, Petitioner, v. Alexis HERMAN, Secretary, U.S. Department of Labor, Respondent.
CourtU.S. Court of Appeals — Eleventh Circuit

Robert M. Rader, Joan B. Tucker Fife, Winston & Strawn, Washington, DC, for Petitioner.

Vonda L. Marshall, U.S. Dept. of Justice, Office of the Solicitor, Washington, DC, George Huddleston, III, Birmingham, AL, for Respondent.

Petition for Review of the Decision and Order of the Secretary of the U.S. Department of Labor.

Before ANDERSON and CARNES, Circuit Judges, and CUDAHY *, Senior Circuit Judge.

CUDAHY, Senior Circuit Judge:

Made of steel and concrete, the drywell of a nuclear power plant encases the reactor itself. It is the containment structure. It is also a bulwark against a variety of disasters. A fire in a drywell is a serious matter, for extinguishing a fire gone out of control is not easy.

Among the people best positioned to prevent fires are the workers who tend to nuclear plants. But if fear of retaliation kept workers from speaking out about possible hazards, nuclear safety would be jeopardized. To protect whistleblowers, Congress forbade employers from retaliating against employees who act in prescribed ways to ensure safety. 42 U.S.C. § 5851.

This case is about one such alleged retaliation, at the Browns Ferry Project, a three-reactor nuclear plant operated by the Tennessee Valley Authority (TVA) outside Huntsville, Alabama. Browns Ferry is no stranger to the danger of fire. In 1975, a fire at the plant failed (narrowly) to cause a meltdown, but did result in the coining of an industry byword for a disastrous conflagration. 1 Further incidents forced the TVA to shut down all three reactors in 1985. In 1991, the Nuclear Regulatory Commission (NRC) let the TVA start up one of the reactors again. 2 And then in 1996, after the events in this case, an unused cooling tower burned up. 3

There were no fires in this case--yet the issue is fire safety. The TVA engaged the petitioner, the engineering firm of Stone & Webster (S&W), to perform construction and maintenance work at Browns Ferry. The dispute before us was born in the first days of February 1993, when S&W was overhauling the platform steel in the drywell of Unit 3, one of Browns Ferry's three reactors. One of S&W's lead foremen, Douglas Harrison, was working on the drywell upgrade. Harrison complains that S&W first demoted him to plain foreman and then transferred him out of the drywell (a desirable place to work). Each time, he says, S&W was retaliating because Harrison had engaged in protected activity under § 5851: he had spoken out about fire hazards to S&W and TVA officials, as well as to his co-workers.

S&W tells a different story. Harrison did not engage in any protected activity, and even if he did, S&W was not retaliating against him. Harrison's demotion followed from a re-shuffling of the labor force, a common happening at S&W. As for Harrison's transfer out of the drywell, S&W argues that Harrison had been disrupting S&W's drywell project. Under cover of safety concerns, he had incited his fellow iron workers to halt work over a labor dispute. And in any case, even if Harrison did talk about safety with his co-workers, § 5851 does not treat discussions with co-workers as a protected activity.

Harrison filed a complaint with the Department of Labor, which wended its way to the Secretary of Labor. Reversing an Administrative Law Judge (ALJ), the Secretary entered a victory for Harrison. S&W petitions this court to overturn the Secretary of Labor's decision. Why S&W is pursuing the case may seem something of a mystery. The Secretary of Labor ordered S&W to compensate Harrison only for ten weeks' diminished wages at two dollars too little per hour--about $800 by our reckoning--plus Harrison's attorney's fees. For S&W, Harrison is not the point. The NRC is. After S&W lost before the Secretary of Labor, the NRC tentatively adopted the Secretary's finding of retaliation and imposed a civil fine of $80,000, plus other, unspecified enforcement measures. S&W now petitions this court because, if S&W prevails, the NRC states that it will re-consider its actions.

Beyond trying to clarify the evidentiary framework for 42 U.S.C. § 5851, we elaborate one principle with import beyond the doings at Browns Ferry in early 1993. The Secretary of Labor would have us issue a blanket ruling that § 5851 protects an employee's speech to co-workers. S & W urges the equally broad but opposite rule. But we need not decide today whether § 5851 protects an isolated or private communication, because the circumstances of Harrison's transfer pose, it seems to us, a narrower question: one of viewing acts in context.

We frame it this way. Assume that an employee has already raised the alarm about nuclear safety within the prescribed channels of 42 U.S.C. § 5851. The employee then commits another closely-related and public act of alarm-raising, but this time § 5851 may or may not have protected that act--had it occurred in isolation or as a private communication. Can the employer single out that particular act and punish the employee without fear of sanction under § 5851? We think that to allow the employer to retaliate under these circumstances would thwart the purpose of 42 U.S.C. § 5851. We affirm.

I. Summary of facts

Douglas Harrison had begun working for S&W as an ironworker journeyman in June 1992. Six weeks later he was promoted to foreman, and on October 6, 1992, he advanced to second lead foreman on the drywell project. As part of a routine force reduction in late November of that year, S&W demoted Harrison back to foreman. Harrison recognized that his inferior seniority meant he would be first to be demoted, and he offered no complaint. Then, in early January of 1993, S&W pushed him back up to second lead foreman, again under the same understanding about Harrison's first-to-go seniority. So when the dispute in this case started, Harrison was the number two lead foreman, overseeing the upgrading of one of two platforms.

On February 1, 1993, Harrison held a weekly safety meeting, one of his job's responsibilities. Harrison's ironworkers had one gripe: firewatch. After wrapping up a shift's hot work, someone had to make sure that no fires broke out, as one might fear with welding gear, cooling steel and the like lying about. Until October 1992, laborers (not ironworkers) had been charged with this duty. Under S&W's new firewatch scheme, ironworkers assumed primary responsibility for the task, although two laborers on a "roving firewatch" would help on each elevation or level of the drywell. At the weekly safety meeting, the ironworkers insisted that the new scheme was unsafe. Afterwards, their foremen told Harrison that the new scheme did not comply with the TVA's fire prevention rules.

Harrison went to tell the TVA fire marshal, Gary Wallace, about the ironworkers' firewatch complaints. Harrison then joined the laborers' lead foreman, David Sparks, and went to talk with Steven Ehele. Ehele was S&W's drywell manager. He had also attended the weekly safety meeting that day. Harrison told Ehele that he had spoken with the TVA fire marshal and that the marshal wanted to talk to Ehele. Ehele, who seems to have a gift for memorable phrases, responded that Harrison and Sparks "were eating [him] alive on man hours in [the] drywell now on fire watches."

The demotion. When Harrison arrived at work the next day, February 2, he learned that the firewatch problem remained unresolved. He also learned that Ehele had not contacted fire marshal Wallace, whereupon Harrison went straight to the NRC field office across the street and filed a complaint with the NRC representative. At about 2:00 pm, one of Harrison's supervisors, Wayne Tennyson (Ehele's subordinate), told Harrison that he had been demoted to foreman.

The transfer. At work on the third day, February 3, Harrison said he did not wish to use his seniority to bump a foreman down to journeyman and he voluntarily took a place as a journeyman himself. He also told the ironworkers about his demotion and the failure to resolve their firewatch concerns. The ironworkers then refused to work. Ehele implored them to return to work, which they did. That afternoon, S&W management and union representatives decided that laborers would re-assume full responsibility for firewatch.

Finally, on February 4, Ehele had Harrison removed from the drywell. S&W's job steward for the ironworkers, Larry Morrow, delivered the message to Harrison. Morrow repeated the ever-evocative Ehele's remark that he wanted Harrison transferred because "[Harrison] was a troublemaker, and that [Harrison] was like Moses standing at the Red Sea to the ironworkers in [the] drywell." Harrison would begin ironwork outside the drywell on less prestigious, less essential tasks like putting up chain-link fences. Only Harrison was demoted; only Harrison was transferred.

There is more to this story. Missing are some unpersuasive claims (mostly by S&W), but also some partly exculpatory evidence. We reserve those facts until they fit more neatly into the analysis.

II. Procedural posture

This court offers the third layer of review for this case. In 1993, Harrison filed an administrative complaint with the Wage and Hour Division of the U.S. Department of Labor under 42 U.S.C. § 5851(b). He alleged that both his demotion and his transfer were discriminatory and retaliatory. The Wage and Hour Division sided with S&W, and Harrison appealed. In 1994, the ALJ also came down for S&W. The ALJ found that the demotion was not an adverse action against Harrison on the grounds that it was not discriminatory. The transfer out of the drywell, however, the ALJ did consider to be an adverse action stemming from Harrison's February 3 meeting with...

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