Whistleblowing case has ramifications for an entire industry.
Anthony P. X. (Tony) Bothwell, a San Francisco-based attorney, has represented nuclear whistleblowers since the 1990s. He was a corporate communications officer for Florida Power & Light and Wisconsin Power & Light in the 1970s and 1980s, and served on energy-ethics advisory panels of the Edison Electric Institute and other industry groups.
Should whistleblower-protection provisions of the federal Energy Reorganization Act protect an employee of a small firm that has a staff augmentation contract with a regulated nuclear energy technology company? The battle of the briefs has been blazing in a federal case set to answer that question.
The case involves a supplier of control-room instrumentation for Florida Power & Light Co. (FPL) and Nebraska Public Power District (NPPD). A negative outcome could unravel safety conscious work environment (SCWE) programs currently protecting employees and contractors in nuclear facilities nationwide. The legal fallout may have implications for utilities, vendors and others. A review of the case suggests ways that nuclear utilities can guard against unwelcome litigation.
The issue has arisen in a case known as Robinson v. Triconex. Triconex is the trade name used by the Irvine, Calif. branch of Invensys, a conglomerate based in London, England. The Irvine facility developed hardware and software for FPL’s St. Lucie and Turkey Point plants and NPPD’s Cooper station. My client, D.L. Robinson, a former Nuclear Regulatory Commission (NRC) senior inspector, managed nuclear quality assurance on Invensys’ FPL and NPPD projects in 2004 and 2005. Robinson complained that long work hours Invensys imposed on its staff in the FPL project—sometimes exceeding 100 hours per week—jeopardized their physical health and the quality of their technical work. Meanwhile, on the NPPD project, he briefly interrupted performance of a FAT (factory acceptance test) so as to effect a remedy, because the test was being conducted in a manner he determined to be in violation of quality assurance (QA) program requirements. The two utilities, which had their own representatives observing work at the facility in Irvine, also voiced their own concerns about the way Invensys was managing the projects.
After the health and safety issues emerged, FPL postponed delivery of an Invensys digital post-accident monitoring system that would be used to monitor critical plant conditions in the event of a nuclear accident. And NPPD postponed delivery of an Invensys digital reactor vessel level control system. Suddenly, Invensys fired Robinson, telling him he had two days to clean out his desk and leave the Irvine plant. So he filed a whistleblower retaliation complaint with the U.S. Department of Labor (DOL) in San Francisco on Oct. 26, 2005, pursuant to Section 211 of the Energy Reorganization Act of 1974 (42 U.S.C. 5851), also known as the ERA. An Occupational Safety and Health (OSHA) investigator conducted interviews and studied documents submitted by both sides. The result was a DOL order requiring Invensys to pay monetary damages and legal costs to Robinson. Invensys filed an appeal. The federal case was set for trial before a DOL administrative law judge in San Francisco.
Meanwhile, my client also filed a complaint in Orange County Superior Court in Santa Ana, in Southern California. Invensys countersued, alleging that its proprietary information had been breached. The NRC sent a letter cautioning Invensys against efforts to deter Robinson from disclosing safety violations to the commission. Attorneys for both sides agreed to put the DOL case on hold while the state lawsuit made its way through the court system in Orange County.
My client complained that virtually every programmatic control established in Triconex’ nuclear QA and project procedures had been violated on the NPPD test. Alleged violations included failures to: verify and validate project application software; establish configuration control; document and disposition testing deficiencies; document changes to the test procedure; maintain a test log; and complete and understand mandatory project training.
I took deposition testimony from an Invensys official who recalled that Robinson had reported violations of specifications or quality controls on the NPPD project. The official conceded that the NPPD project involved instrumentation and software that had “potential safety implications” because it would be used “to control the feed water” in a nuclear power plant, Cooper station. Also, an Invensys auditor testified that the NPPD test was not properly documented, that some documents were missing or unsigned. As the auditor said, it’s important to have proper documentation of the development and testing of “instruments that are going to be used by nuclear power plant operators.”
NPPD provided a document titled “Analysis of Abnormal Operational Transients” that said, regarding the reactor vessel level control system: “In the event that the control room becomes inaccessible, it shall be possible to bring the reactor from power range operation to a hot shutdown condition by manipulation of the local controls and equipment that are available outside the control room.” The analysis was based on assumptions that included: “The station is operating initially at full power …[and] personnel evacuate the control room taking time only for their immediate actions within the control room that can be accomplished in seconds.”
NPPD’s project manager, in an e-mail circulated among the utility’s executives, reported “a significant number of procedural errors and test methodologies errors, which should have been easily identified during a pre-FAT test run.” This helped persuade NPPD officials to make a two-day visit to Irvine where, according to an NPPD follow-up report, they arrived at several findings:
• Multiple examples of failure to follow internal procdures;
• Documentation issues;
• Lack of complete pre-FAT;
• Lack of sufficient evidence of V&V (verification and validation) activities as required by procedure;
• Inadequate resources assigned to project (e.g., time-pressure aspect, schedule pressure, lack of QA oversight); and
• Hands-off approach and lack of accountability from the Triconex project manager.
In light of such concerns, the NPPD’s procurement department sent a letter regarding the reactor vessel control project, which said, “This letter serves as formal notification…. Due to concerns raised by Action Request Report (ARR) 2005-460, we are requesting that these materials not be shipped until such time as the ARR is formally addressed by Triconex.” The ARR was a report originated by my client that summarized significant project deficiencies.
FPL, upon learning of shortcomings disclosed by Robinson concerning its Invensys project, also issued a stop-work order. The problems included alleged Invensys violations of a federal regulation, 10 C.F.R. 50 Appendix B, which sets nuclear QA requirements governing nuclear system and component design, development, and testing. The Invensys FPL Turkey Point project was designated as having safety-related issues and therefore was regarded as potentially reportable under 10 C.F.R. 21. In fact, Title 10 of the C.F.R., section 21.1et seq. requires operators of nuclear facilities to “immediately notify the Commission” of any failure to comply with rules that relate to “substantial safety hazards.”
In the aftermath of the Three Mile Island accident some 30 years ago, the NRC shined the spotlight on the whole issue of excessive work hours. The NRC called attention to adverse impacts of fatigue on the quality and acceptability of safety-related work. In 1980, the NRC issued IE Circular 80-02 to all licensees, setting standards for work hours. My client complained because, inter alia, he was convinced that Invensys practices on the FPL project grossly violated industry standards.
As an Invensys official testified, the FPL project involved replacement of control instruments that plant operators would depend upon in the aftermath of a nuclear accident at the Turkey Point Plant south of Miami. An Invensys manager, testifying about the FPL project, recalled that my client had reported that the excessive work hours were contributing to errors on the project. Evidence showed that a crisis existed because staff health and performance were impaired by being made to work up to 100 or more hours per week, endangering critical tasks.
When Invensys fired Robinson—who has worked in nuclear power projects all over the United States—it then replaced him with a worker who had essentially no nuclear technology background and who had a license to operate a sewage treatment plant. Invensys lawyers have maintained that the feedwater control instruments developed for NPPD’s Cooper station—and the post-accident monitoring system developed for FPL’s Turkey Point plant—were not safety related, and that all problems related to the nuclear projects were solved.
Employee or Contractor?
In the lawsuit filed in California, my associates and I contended that our client was protected against wrongful discharge from employment under state law because he was a common law employee of Invensys. Thus, although he was a contract worker, Invensys managers supervised and controlled his work the same way as they did that of their direct employees. But the courts in Orange County decided otherwise. The judges there concluded that this state lawsuit was similar to the federal case of Lydia Demski, a contractor who had done some maintenance work at a Michigan nuclear plant, and who also had been fired after voicing safety concerns. The dismissal of her federal whistleblower claim was affirmed by the Sixth Circuit U.S. Court of Appeals in a 2005 decision (see, Demski v. U.S. Department of Labor, 419 F.3d 488). According to the ruling in that case, Demski was deemed to be a contractor who was not a common law employee.
We argued, to no avail in Orange County courtrooms, that Robinson’s situation was distinguished from that of Demski. Invensys’ attorneys again used her case as precedent in briefs they filed with the DOL. Demski was president of two corporations, I&M and ANR/Scope. ANR/Scope, under contracts with I&M, performed services for a nuclear plant in Michigan operated by American Electric Power (AEP). I&M didn’t pay salary or benefits to Demski, nor did she have any I&M supervisor. Rather, other managers of ANR/Scope supervised her. She complained that AEP wrongfully terminated ANR/Scope’s contracts because she had reported safety concerns.
The material facts in Robinson’s case are the inverse of those in Demski’s case, even though both worked in the nuclear field. Demski was sole owner of both I&M and ANR/Scope, which contracted for I&M to perform services for AEP; conversely, my client was co-owner of R&R Consolidated Enterprises and had no ownership interest in TAC Worldwide, which, in turn, contracted for R&R to provide his services to Triconex. Demski’s work was supervised by ANR/Scope managers; Mr. Robinson’s work, on the other hand, was supervised by managers of the principal, Triconex, also known as Invensys.
To clarify, the Robinson v. Triconex case would resemble Demski’s if Robinson would have been the sole owner of both R&R and TAC, and if other TAC employees actually would have supervised his performance of nuclear safety and QA duties. However, that isn’t at all what happened. Rather, TAC was Invensys’ payroll service. Invensys managers were the only ones who supervised Robinson’s nuclear safety and QA work. On that basis, we have argued that Robinson was an employee within the meaning of the federal ERA’s whistleblower protection provision.
Section 5851 of the ERA prohibits retaliation against civilian nuclear industry workers for disclosing safety violations involving nuclear technology. It’s undisputed that Section 5851 applied to Invensys, which was supplying control-room instrumentation for nuclear power plants. But Invensys’ lawyers argued that Robinson was a contractor under state law and therefore should be precluded from obtaining federal statutory remedies for alleged retaliation that followed his nuclear safety reporting. We countered that whether a worker is an employee under the ERA doesn’t depend on whether a written contract called him an employee or a contractor. Instead, we argued, it depends on the working relationship between the worker and the principal. We urged that, even if Robinson was not regarded as a common law employee, he still was entitled to protection as an employee within the meaning of the federal statute.
We cited past decisions including Matter of Samodurov v. General Physics Corp., which said, “In determining whether a contractor is an employee within the ERA’s protection, the decisions examine the degree of control of supervision by the respondent” (see 1993 WL 832030, DOL Off.Adm.App.). Further, as one of our witnesses said in a sworn statement, “Robinson and other contractor employees working on commercial nuclear power activities at Invensys 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 a worst-case scenario, such a state of affairs could lead to some very bad news for the utility, its vendors, employees, neighbors and other stakeholders. As we all learned from the Three Mile Island calamity, one reactor accident can damage the entire industry. President Reagan’s secretary of labor, Elizabeth Dole, once wrote that, if nuclear workers are “coerced and intimidated into remaining silent when they should speak out, the results can be catastrophic.”
Invensys’ attorneys have pursued a legal strategy that they believe best protects the interests of their client, a multinational corporation. But who will safeguard the interests of America’s nuclear electric utilities—and the public interest—if federal authorities decide the law doesn’t protect employees of nuclear technology contractors who disclose health and safety violations? If a legal black hole exists, U.S. nuclear utilities might do themselves a favor by helping persuade Congress to strengthen the ERA so that all nuclear workers will be unambiguously protected from retaliation whenever they report hazardous conditions.
There’s no crystal ball to foretell what courts and Congress will do in the future. In any event, enlightened utilities can protect their own future best interests by acting as FPL and the NPPD did. That is, plant owners can protect themselves by consistently applying Safety Conscious Work Environment practices to their contract workers as well as their direct employees—and by closely monitoring vendors’ work and refusing to accept substandard performance.