Snow v. Bechtel Const. Inc.

• Decision Date: 19 November 1986
• Docket Number: No. CV-85-4292-AHS.,CV-85-4292-AHS.
• Citation: 647 F. Supp. 1514
• Parties: James Ellis SNOW, Plaintiff, v. BECHTEL CONSTRUCTION INC., Jerry Lilly, Jim Delaporte, Carl Gantner, David Cathcart, et al., Defendants.
• Court: U.S. District Court — Central District of California

647 F. Supp. 1514

James Ellis SNOW, Plaintiff, v. BECHTEL CONSTRUCTION INC., Jerry Lilly, Jim Delaporte, Carl Gantner, David Cathcart, et al., Defendants.

No. CV-85-4292-AHS.

United States District Court, C.D. of California.

November 19, 1986.

Matthew B.F. Biren, Los Angeles, Cal., for plaintiff.

Walter A. Stringfellow, Donald A. Newman, Thelen, Marrin, Johnson & Bridges, Los Angeles, Cal., for defendants.

STOTLER, District Judge.

Plaintiff James Snow ("Snow") originally filed his complaint for wrongful termination and for violation of his right to freedom of speech pursuant to Article I, section 2 of the California Constitution in the Orange County Superior Court on May 16, 1985. Defendant Bechtel Construction Inc. ("Bechtel") subsequently removed this action on June 28, 1985 pursuant to section 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a) and the Atomic Energy Act, 42 U.S.C. § 2011 et seq.

This matter is before the Court upon the motion of defendant Bechtel for judgment on the pleadings. Since Bechtel introduces facts outside of the pleadings, the Court treats the motion as one for summary judgment. Defendant's papers notified plaintiff of such alternative motion treatment. Rule 12(b) and Rule 56 of the Federal Rules of Civil Procedure.

Bechtel contends that Snow's claims are preempted by the Atomic Energy Act of 1954, 42 U.S.C. §§ 2011 et seq., and section 210 of the Energy Reorganization Act of 1974 as amended, 42 U.S.C. § 5851. Alternatively, defendant argues that Snow's claims are preempted by section 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a). Bechtel further maintains that plaintiff's second cause of action should be dismissed because plaintiff fails to establish sufficient facts to show that Bechtel's activities constitute state action.

Defendant moves the Court to take judicial notice that Snow's place of employment, the San Onofre Nuclear Generating Station ("SONGS"), rests on a federal enclave over which the federal government has exclusive jurisdiction. Bechtel then asserts that plaintiff's reliance on state wrongful termination law is inappropriate since only federal law and consistent preexisting state law govern federal enclaves.

By this Order the Court grants Bechtel's motion for summary judgment, concluding that Snow's wrongful termination action is preempted in part by the Atomic Energy Act of 1954, 42 U.S.C. §§ 2011 et seq. and section 210 of the Energy Reorganization Act of 1974 as amended, 42 U.S.C. § 5851, and in part by § 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a). Summary judgment is also granted as to Snow's freedom of speech claim under the California Constitution because Snow fails to show sufficient facts establishing that Bechtel's activities constitute state action. Bechtel's request for judicial notice is granted and the Court further dismisses Snow's wrongful termination claim because federal enclaves are governed exclusively by federal law and consistent preexisting state law.

FACTS

For purposes of this motion for summary judgment, plaintiff Snow's version of the facts shall be accepted as true. Snow was formerly employed by Bechtel as a carpenter foreman at SONGS. SONGS is a nuclear power plant operated by the Southern California Edison Company ("Edison") under a license issued by the Nuclear Regulatory Commission ("NRC"). Bechtel served as a contractor to Edison at SONGS. Throughout his employment by Bechtel at SONGS, plaintiff was a member of the San Diego County District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America AFL-CIO. The terms and conditions of his employment were governed by a collective bargaining agreement, the General Presidents' Project Maintenance Agreement ("GPPMA"). The GPPMA permitted Bechtel to terminate the employment of its employees in reductions in force and for just cause. It also contained an exclusive grievance and arbitration procedure.

The complaint alleges two claims. The first cause of action is for wrongful termination with respect to plaintiff's termination of employment on November 27, 1984. On July 4 and 5, 1984, Snow reported to his immediate supervisors that employees of Bechtel were ingesting narcotics on the job. Snow alleges that he was terminated from his employment on July 6, 1984, because of these reports. Bechtel contends that Snow was fired on this occasion because he failed to supervise properly. Snow pursued the grievance procedure under the GPPMA collective bargaining agreement and was rehired as a journeymen carpenter on September 4, 1984. On or about October 25, 1984 Snow reported to Bechtel and to the owner of SONGS that the plant was in violation of established emergency evacuation requirements. On October 30, 1984, Snow sent a telegram to the NRC reporting that SONGS was in violation of its established emergency evacuation requirements in the event of a nuclear accident. On the same day he informed his employer that he would be sending that telegram. On November 27, 1984, Snow was terminated for the stated reason of reduction in force. Pursuant to the terms of the GPPMA agreement Snow, through his union representatives, filed a grievance with Bechtel regarding this termination. Snow contends, in his first cause of action, that his termination on November 27, 1984, was disguised as a lay off in order to conceal the fact that he was terminated because he reported two flagrant safety violations at SONGS to the appropriate authorities. He claims his termination was wrongful as it was in violation of various public policies of the State of California, including California's commitment to protect the people of the State from unnecessary exposure to radiation and an employer's obligation to provide an employee with a safe place to work.

In Snow's second cause of action, he claims that his reports of the two safety violations at SONGS constitute exercises of his right to freedom of speech under the California Constitution. Plaintiff alleges that his termination was wrongful as it violated his right to free speech protected by the Constitution.

DISCUSSION

The Court must first consider whether plaintiff's action is barred because preempted by either of two schemes: (1) the federal nuclear regulatory scheme, and (2) section 301 of the Labor Management Relations Act.

1. The Federal Nuclear Regulatory Scheme.

The Atomic Energy Act of 1954, 42 U.S.C. §§ 2011 et seq., ("AEA") comprehensively regulates the field of nuclear energy. The AEA provides for federal and state cooperation with respect to control of radiation hazards and other aspects of the regulation of nuclear materials. 42 U.S.C. § 2021. However, the Nuclear Regulatory Commission retains "authority and responsibility with respect to regulation of — (1) the construction and operation of any production or utilization facility, ..." 42 U.S.C. § 2021(c). The federal government thus maintains "complete control of the safety and `nuclear' aspects of energy generation...." Pacific Gas & Electric Company v. Energy Resources & Development Commission, 461 U.S. 190, 212, 103 S.Ct. 1713, 1726, 75 L.Ed.2d 752 (1983). The United States Supreme Court thus indicates that any state public policy regarding nuclear safety is preempted by the federal regulatory scheme:

"State safety regulation is not preempted only when it conflicts with federal law. Rather, the Federal Government has occupied the entire field of nuclear safety concerns, except the limited power expressly ceded to the States. When the Federal Government completely occupies a given field or an identifiable portion of it, as it has done here, the test of preemption is whether `the matter on which the State asserts the right to act is in any way regulated by the Federal Act.'"

Id. at 212-213, 103 S.Ct. at 1726-1727 (footnote and citation omitted).

Section 210 of the Energy Reorganization Act of 1974 as amended, 42 U.S.C. § 5851, specifically provides a remedy for an employee who believes he has been discharged or otherwise discriminated against for making safety complaints concerning the construction or operation of nuclear power plants. Section 5851 provides that no employer may "discharge ... or otherwise discriminate" against any employee because the employee has testified, given evidence or brought suit under the AEA, or engaged in "any other action to carry out the purposes" of the AEA.

It further provides that any employee who believes he has been discharged or otherwise discriminated against may file a complaint with the Secretary of Labor within thirty days after such violation occurs. Within thirty days of receipt of such a complaint, the Secretary must conduct an investigation and notify the individuals involved of any results. Within ninety days of receipt of a complaint, the Secretary must either deny it or order the offending employer to take remedial action. Such action may consist of reinstatement, compensation, and payment of compensatory damages. This scheme includes the right to have the Secretary's decision reviewed by a United States Court of Appeals. In addition, any individual who fails to comply with the Secretary's order would be subject to civil enforcement of the order. The above scheme applies to individuals who are allegedly discharged for reporting nuclear safety violations to the NRC or to internal supervisors. See DeFord v. Secretary of Labor, 700 F.2d 281, 286 (6th Cir. 1983); Consolidated Edison Co. of New York, Inc. v. Donovan, 673 F.2d 61 (2d Cir.1982).

The "whistleblower" provision of § 5851 was patterned after another federal statute, the Mine Safety and Health Act, 30 U.S.C. §§ 820 et seq., S.Rep. No. 95-848, 95th Cong., 2nd Sess. at 29, 1978 U.S.Code Cong. & Admin.News at 7303. The two Acts "share a broad, remedial purpose of protecting workers from retaliation based on their concerns for safety and quality." Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159, 1163 (9th...