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Do Nuclear Workers Dare?

Whistleblowing case has ramifications for an entire industry.

Fortnightly Magazine - May 2010

Triconex were instructed by management that they were regarded as employees and protected from retaliation under the federal Energy Reorganization Act .” Another witness also said in an affidavit that Robinson was “treated in all respects the same as regular full time employees” and “considered as” an Invensys employee.

Depositions in Five States

Witnesses in the Robinson case gave sworn testimony in depositions in California, Texas, Florida, Massachusetts and Nebraska. Attorneys for Invensys filed a motion for summary decision, asking the DOL judge to dismiss the whole matter. Declining to throw out the case, the judge ruled that Robinson had the right to argue that the ERA protected his whistleblowing as an employee of an Invensys contractor. Then Invensys won a second motion for summary judgment, arguing that no reasonable fact finder could reach the conclusion that Robinson was a protected employee of his own firm, R&R, an Invensys contractor. Whichever party is dissatisfied with the ultimate administrative ruling of the Secretary of Labor may appeal the case to the U.S. Court of Appeals, Ninth Circuit, in San Francisco.

The outcome of the case could have ramifications for U.S. nuclear utilities, vendors, investors and other stakeholders. Indeed, the future of the nation’s civilian nuclear safety and QA programs just might hang in the balance. Survival of the SCWE program really matters because, after all, most of the people who work in U.S. nuclear power plants are contract workers.

So what does all this mean for utilities operating nuclear power plants that legitimately would like to minimize their potential exposure to legal liabilities?

Truth and Consequences

If the SCWE programs unravel, utility managers might have a more difficult time enforcing safety and QA in nuclear power plants. An organizational environment of weakened safety and QA would, in turn, chill complaints by whistleblowing employees and contractors. Managers could get the idea that they are free to retaliate against contract workers who report inconvenient truths about health and safety problems. If a utility manager is implicated in apparent retaliation against a whistleblower, costly litigation could still follow in varied state and federal venues. If diminished enforcement opens the door to real safety problems in an operating nuclear power station, there might be a potential for heightened costs in terms of human health, legal liability, management reputation, and investor confidence.

Hypothetically, if the federal statute protects only direct employees of utilities and leaves whistleblowing contract workers in a legal no-one’s land, what would be the likely practical consequences? Contract employees—the majority of workers in the nation’s nuclear electric generating plants—would understand that the utility or the contractor bosses could retaliate against them for disclosing safety problems. In the hypothetical scenario, retaliators might enjoy federal impunity as they demote, fire or force out conscientious, safety-conscious workers. The chill would be overwhelming. Nuclear contract employees would be even more afraid than they might be now to call attention to safety and quality assurance problems. This would mean that a hazardous condition in a nuclear plant could be less likely to be reported and corrected.

Nuclear safety matters. In