Stone & Webster Engineering Corp. v. Herman

United States Court of Appeals,

Eleventh Circuit.

No. 95-6850.

STONE & WEBSTER ENGINEERING CORPORATION, Petitioner,

v.

Alexis HERMAN, Secretary, U.S. Department of Labor, Respondent.

July 2, 1997.

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.

*
Honorable Richard D. Cudahy, Senior U.S. Circuit Judge for
the Seventh Circuit, sitting by designation.
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

1
David Stellfox, Critics Fear Another "Browns Ferry" as NRC
Okays Combustible Fire Stops, Inside N.R.C., Jan. 8, 1996.
2
Chris Wohlwend, TVA Restarts Browns Ferry Unit; Ala.
Nuclear Plant Shut 6 Years, Atlanta Journal and Constitution, May
24, 1991, at A2.
3
Tom Harrison, Fire Destroys Another Cooling Tower at TVA's
Browns Ferry, Inside N.R.C., May 27, 1996.
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 employer 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 his co-workers. But even if the transfer was retaliatory, the

ALJ concluded that § 5851(a) did not encompass meeting with

co-workers. Section 5851(a) thus did not protect Harrison from

that particular act of retaliation. The ALJ recommended dismissal

of the case.

Harrison appealed again, this time to the Secretary of Labor.

On August 22, 1995, the Secretary reversed the ALJ and found that

Harrison's demotion and transfer both constituted retaliation under

§ 5851(a). As for the demotion, the Secretary found that it had

been an adverse action (thus reversing the ALJ), and that it had

been retaliatory. With respect to the transfer, the Secretary

agreed that it resulted from Harrison's February 3 meeting with his

co-workers. The Secretary reversed the ALJ's conclusion that §

5851(a) did not cover such meetings. In the Secretary's judgment,

it did.

S&W's timely petition for review followed. We have

jurisdiction to review the Secretary's 1995 order under 42 U.S.C.

§ 5851(c). On matters of law, we review de novo, keeping in mind
the deference we pay to the Secretary of Labor in construing the

statutes he is charged with administering. Chevron U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct.

2778, 81 L.Ed.2d 694 (1984); Bechtel Construction Co. v. Sec. of

Labor, 50 F.3d 926, 931, 933 (11th Cir.1995). On matters of fact,

we review the Secretary's order for substantial evidence. 5 U.S.C.

§ 706(2)(E) (Administrative Procedure Act). We ask whether such

relevant evidence exists " "as a reasonable mind might accept as

adequate to support a conclusion.' " Richardson v. Perales, 402

U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting

Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206,

217, 83 L.Ed. 126 (1938)). Here the ALJ and the Secretary of Labor

differed. This disagreement causes us to review the Secretary's

order "more critically." Bechtel, 50 F.3d at 933. Ultimately,

however, the decision is the Secretary's. Id. at 932. We ensure

only that the Secretary's conclusion, if different from the ALJ's,

is " "supported by articulate, cogent, and reliable analysis.' "

Id. at 933 (quoting Northport Health Serv., Inc. v. NLRB, 961 F.2d

1547, 1553-54 (11th Cir.1992)).

III. Adverse actions against Harrison

Before turning to these happenings at Browns Ferry, a word is

in order about how the evidentiary framework of 42 U.S.C. § 5851

operates. The Secretary and S&W have evinced considerable

disagreement over the extent to which this framework draws on the

general law of employment discrimination. We think it important to

dispel some of the seeming perplexity of 42 U.S.C. § 5851.

In 1992, Congress amended § 5851 to codify a particular
framework regarding burdens of proof where no statutory guidance

existed before. Energy Policy Act of 1992, P.L. 102-486, §

2902(d); see also Mackowiak v. University Nuclear Systems, Inc.,

735 F.2d 1159, 1164 (9th Cir.1984) (upholding similar framework).

Under the statutory framework, a complainant must first pass a

gatekeeper test before an inquiry may commence. The Secretary may

investigate only if the complainant succeeds in making a "prima

facie showing" that retaliation for protected activity "was a

contributing factor in the unfavorable personnel action alleged in

the complaint." 42 U.S.C. § 5851(b)(3)(A). Then the investigation

must go forward, unless the employer "demonstrates, by clear and

convincing evidence, that it would have taken the same unfavorable

personnel action in the absence of such behavior." 42 U.S.C. §

5851(b)(3)(B).

Section 5851's reference to a "prima facie showing" has bred

some confusion, chiefly because the phrase evokes the sprawling

body of general employment discrimination law. See, e.g., Price

Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d

268 (1989); Mt. Healthy City School Dist. Bd. of Ed. v. Doyle, 429

U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

The Secretary of Labor and S&W have quarreled over how these cases

and their innumerable progeny affect Section 5851's evidentiary

burdens. But Section 5851 is clear and supplies its own

free-standing evidentiary framework. After a complainant has

cleared the prima facie gatekeeper test—and assuming she has not

been knocked out by a preemptory "clear and convincing" response
from the employer—the Secretary is to investigate whether the

complainant's behavior actually was "a contributing factor in the

unfavorable personnel action." 42 U.S.C. § 5851(b)(3)(C). The

burden to persuade the Secretary falls upon the complainant, and

she must do so by a preponderance of the evidence. Dysert v. Sec.

of Labor, 105 F.3d 607, 610 (11th Cir.1997). If the complainant

succeeds, the employer has a second chance to offer "clear and

convincing evidence" that it would have done the same thing anyway,

i.e., "in the absence of such behavior." § 5851(b)(3)(D).

For employers, this is a tough standard, and not by accident.

Congress appears to have intended that companies in the nuclear

industry face a difficult time defending themselves. "Recent

accounts of whistleblower harassment at both NRC licensee ... and

[Department of Energy] nuclear facilities ... suggest that

whistleblower harassment and retaliation remain all too common in

parts of the nuclear industry." H. Rep. No. 102-474(VIII), at 79

(1992), reprinted in 1992 U.S.C.C.A.N. 1953, 2282, 2297. "These

reforms," the House Report continues, "are intended to address

those remaining pockets of resistance." Id.

We turn to address the specifics of Harrison's demotion and

transfer.

A. Harrison's demotion

Under 42 U.S.C. § 5851(b)(3)(C), the burden of persuasion

falls first upon Harrison to demonstrate by a preponderance of the

evidence that retaliation for his protected activity was a

"contributing factor" in the decision to demote him. Harrison

cannot satisfy this requirement through direct evidence. S&W did
and said nothing that would indicate it sought to retaliate against

Harrison by demoting him on February 2. Drywell manager Ehele did

say that Harrison was eating him alive on man-hours. But Ehele's

remark does not suggest a desire to suppress Harrison or his

complaint. S&W argues that Ehele was talking about over-exposure

to radioactivity; and even if Ehele meant wage costs, S&W was not

forbidden to consider expenses in weighing safety concerns. That

said, the circumstances do seem suspicious. A man starts

complaining about fire safety. The next day he is demoted. The

Secretary of Labor found that by a preponderance of the evidence,

Harrison had made his showing. Reviewing for substantial evidence

to support this finding, we affirm.

After hearing his ironworkers' grousing about firewatch,

Harrison spoke to the TVA fire marshal, the drywell manager (Ehele)

and ultimately to the NRC field representative. If an employee

talks about safety to a plant fire official, an employer and an

industry regulator, he or she acts squarely within the zone of

conduct that Congress marked out under 42 U.S.C. § 5851(a)(1). S&W

also knew of Harrison's contact with the TVA fire official and with

Ehele (though not of Harrison's complaint with the NRC). By

February 2, Harrison had told Ehele (his supervisor) of his TVA

contact and Ehele obviously knew first-hand of the approach to him.

S&W would have us believe that S&W officials thought Harrison was

carping about labor issues, but we find this unlikely. Harrison's

visit to the TVA fire marshal should have put at least Ehele on

notice of Harrison's § 5851-shielded conduct.

So far the ALJ and the Secretary were in agreement. When they
considered whether demotion was an adverse action, however, they

parted ways. The ALJ decided that the demotion was not an adverse

action because the demotion, in the ALJ's eyes, was not

discriminatory. But discriminatory and adverse have distinct

meanings. An "adverse action" is simply something unpleasant,

detrimental, even unfortunate, but not necessarily (and not

usually) discriminatory. The Secretary corrected this error and

concluded that Harrison's demotion was an adverse action.

In determining whether Harrison met his burden under §

5851(b)(3)(C), we ask whether the Secretary properly inferred that

retaliation against Harrison was more likely than not a

"contributing factor" to his demotion. The Secretary said yes, for

only one day separated Harrison's protected conduct from his

demotion. Given this proximity in time and the circumstances as

laid out above, we see no grounds for gainsaying the Secretary's

inference of causation.

The burden thus shifted to S&W to demonstrate, "by clear and

convincing evidence, that it would have taken the same unfavorable

personnel action in the absence of such behavior." 42 U.S.C. §

5851(b)(3)(B). This is a high standard to begin with; and on

review only for substantial evidence supporting the Secretary, S&W

has a steep hill to climb.

S&W almost makes it. Its principal argument is to snap the

temporal link that the Secretary infers. Five S&W managers offered

unimpeached testimony that S&W decided to demote Harrison days

before he raised any fire concerns. For in late January the field

manager for all construction work at Browns Ferry, James Butts, had
reviewed the roster of drywell employees. Butts surmised that the

project was top-heavy: the ratio of foremen to ironworkers was

9:38, double the 1:8 ratio that S&W generally targets. On either

January 27 or 29, Butts asked his subordinates, including Ehele, to

review their rosters for top-heaviness. Ehele turned to his own

subordinate managers (Tennyson, Sertway, and Fonte) for

suggestions, but named no one himself.

Ehele's subordinates picked three foremen: Tommy Willis, Troy

Faulks and Harrison (a lead foreman). The reasons for picking

Harrison were manifold: Harrison supervised a lone foreman and

crew; the work on his particular platform was drawing to its end;

his seniority put him below the other lead foreman, Eugene Hannah.

By Saturday, January 30, Ehele had informed field manager Butts of

these three recommendations.

But it was not until Tuesday, February 2—after the questions

of fire safety had arisen—that Harrison was actually informed of

his demotion. This gap in time introduced the Secretary's critical

doubt about S&W's motives. S&W responds reasonably enough that its

managers had bigger matters on their minds than making sure

Harrison's demotion was prompt. But another problem for S&W is

that of the three recommendations for demotion, S&W acted only on

Harrison. The other two, Willis and Faulks, had been slated for

reduction to ironworker journeyman. Ehele's subordinates Tennyson

and Sertway intervened on February 2, however, to persuade Ehele

and Butts not to demote them, on the grounds that their work was

too sophisticated for journeyman's pay. S&W points out that

Harrison was only demoted to foreman at $2 less an hour and would
oversee the same crew in the same location. Is it plausible that,

if S&W wanted to squelch Harrison, it would have chosen such a mild

and ineffective technique? S&W also says that it did not replace

Harrison, which supports its contention that Harrison was demoted

because of the roster review.

S&W's points are well-taken. We do not doubt that S&W had

legitimate reasons for demoting Harrison. If the review were de

novo, we might agree with S&W that it had met its burden of

rebuttal. In our eyes, S&W might have demoted Harrison had he

never uttered a word about fire safety to anyone. But it is not

our task to make this judgment. Congress has charged us with a

much more limited scope of review. Our task is to determine

whether substantial evidence supports the Secretary's decision. We

agree with the Secretary that such evidence exists. We cannot say

that it was unreasonable for the Secretary to hold that S&W had

failed to rebut under § 5851(b)(3)(D).

B. Harrison's transfer

The circumstances of Harrison's transfer out of the drywell

are less muddled. On February 3—after his demotion—Harrison asked

the remaining lead foreman, Eugene Hannah, to gather the members of

Harrison's former ironworker crews. Harrison announced to the

assembled workers that he had been demoted and that nothing had

changed on the firewatch. The ironworkers then decided among

themselves to refuse to work until S&W rectified the fire safety

issue. Ehele came and mollified them enough to return to work, but

later that same day S&W and the union agreed to return to the old

firewatch procedure. Firewatch again became the laborers'
responsibility.

The next day, Ehele sent job steward Morrow to fetch Harrison

and send him to work outside the drywell. As we mentioned before,

non-drywell work was ancillary, enjoyed less status and seems to

have been less interesting. Morrow reported to Harrison that Ehele

had compared Harrison to Moses at the Red Sea.

Here Harrison can build his case on direct evidence of S&W's

animus. We do not understand Ehele to have underscored Harrison's

moral courage. Rather, we think Ehele saw Harrison as a

"troublemaker," in Ehele's own words. The Secretary did not err in

viewing retaliation as a probable contributing factor to Harrison's

transfer out of sight and out of the drywell.

Against Harrison's evidence S&W offers little in rejoinder.

Ehele mentions that Harrison had earlier requested a transfer to an

outside crew. This is a plausible contention, as Harrison, now

working as a journeyman, might prefer not to work alongside people

he had just recently supervised. But S&W falls short of convincing

us, as he failed to convince the ALJ or the Secretary, that S&W

would have transferred Harrison had he never provoked trouble for

S&W at the ironworkers' meeting. Substantial evidence upholds the

Secretary's finding of retaliation.

Our conclusion leaves an assumption hanging. Section 5851

does not protect every act that an employee commits under the

auspices of safety. Whistleblowing must occur through prescribed

channels. Did Harrison's advising his co-workers of his fire

worries constitute a protected activity under § 5851(a)? If not,

the whistleblower provision would not avail Harrison, and S & W's
retaliation would be permissible. We are unaware of any case law

that guides our response to this particular question. We decide it

afresh today.

Section 5851(a) lists six ways that an employee may act under

its aegis. Listing only the three relevant provisions, an employee

commits a protected activity if he:

(A) notified his employer of an alleged violation of this
chapter or the Atomic Energy Act of 1954....

(D) commenced, caused to be commenced, or is about to commence
or cause to be commenced a proceeding under this chapter or
the Atomic Energy Act of 1954, as amended, or a proceeding for
the administration or enforcement of any requirement imposed
under this chapter or the Atomic Energy Act of 1954, as
amended [or] ...;

(F) assisted or participated or is about to assist or
participate in any manner in such a proceeding or in any other
manner in such a proceeding or in any other action to carry
out the purposes of this chapter or the Atomic Energy Act of
1954, as amended.

We note as a starting point that Congress drafted subparagraph

(F) in broad terms. The statute shields any employee who "is about

to assist or participate in any manner ... or in any other action

to carry out the purposes of this chapter or the Atomic Energy Act

of 1954, as amended." 42 U.S.C. § 5851(a)(1)(F) (emphasis added).

"Purpose" is an open-ended word. We presume that Congress used

this word advisedly. In fact, when Congress revised § 5851

wholesale in 1992, it left this wording intact. See 42 U.S.C. §

5851(a)(3) (1991).

The Secretary of Labor argues that § 5851(a) is elastic enough

to cover Harrison's speech to his co-workers. The Secretary

administers § 5851, and we accord his or her interpretations due

deference. English v. General Electric Co., 496 U.S. 72, 83 n. 6,
110 S.Ct. 2270, 2277 n. 6, 110 L.Ed.2d 65 (1990); Bechtel, 50 F.3d

at 932. In Bechtel, this court acceded to the Secretary's

contention that the pre-1992 version of § 5851 covered internal

complaints "made to supervisors and others," a position Congress

ratified with the current statute's subparagraph (A). Id. at 932,

932 n. 1. As in Bechtel, we ask whether the Secretary's reading is

a permissible reading of the statute. Id. at 932.

We do not need to adopt as broad a reading of the statute as

the Secretary would wish, however. The facts of Harrison's

transfer permit a less ambitious decision. Harrison's discussion

with his fellow ironworkers was, in the context in which it

occurred, an action "to carry out the purposes" of the Atomic

Energy Act and Chapter 73 of Title 42 (Development of Energy

Sources)—and to guarantee nuclear safety in particular. Harrison

may very well have been wrong about the concrete dangers posed by

the new firewatch scheme at Browns Ferry. We do not know. The

important question, however, is not whether he was right, but

whether he was acting in furtherance of safety compliance when he

spoke to the co-workers. We conclude he was. The meeting with the

ironworkers was included in a series of communications to employer

representatives and to TVA officials. All of these complaints

were, under the circumstances, mutually reinforcing. The meeting

with the ironworkers reiterated publicly and in an emphatic way

what Harrison had said in the earlier communications. As a

practical matter, Harrison's statements at the meeting served as

another notice to the employer. To exclude the meeting as a

recognized effort at whistleblowing would seem artificial; to
denude the meeting of its context would seem to strip it of its

real content. In a context directly and immediately involving

other communications that § 5851(a) explicitly recognizes as

protected activity, the Secretary of Labor has permissibly

construed § 5851(a) to include Harrison's meeting with his

co-workers.

S&W retorts that this position ignores that Congress felt it

necessary in 1992 to insert a particular sub-paragraph to cover

internal complaints to employers. 42 U.S.C. § 5851(a)(1)(A). If

Congress inserted a provision for speech to employers, why not for

speech to fellow employees? Because, S&W says, Congress did not

want to extend protection this far. S&W's interpretation is not

implausible on its face. At the time of the 1992 amendments,

several circuits had ruled that § 5851(a) encompassed complaints to

employers. Bechtel, 50 F.3d at 931-32 (recounting history of case

law). Nonetheless, the Fifth Circuit had ruled the other way.

Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir.1984). The

legislative history of the 1992 Energy Policy Act, too, makes clear

that Congress intended the amendments to codify what it thought the

law to be already. Congress sought "to explicitly provide

whistleblower protection for nuclear industry employees [who] (1)

notify their employer of an alleged violation rather than a federal

regulator." H.R. No. 102-474(VIII), at 78, reprinted in 1992

U.S.C.C.A.N. 1953, 2282, 2296 (emphasis added). In other words,

Congress thought the statutory language broad enough already, but

recognized that it required explication.

We recognize that the policy implications of the Secretary's
construction may not be flawless. There may be some difficulty in

distinguishing between offering a shield behind which some

employees may incite trouble about a host of non-safety issues,

including labor disputes, and one behind which well-intentioned

employees may raise an alarm against safety hazards. But this is

a balance for the Secretary of Labor to attempt to strike in the

first instance. The only question is whether the Secretary's

balance here, as we have cast it, is a permissible reading of the

whistleblower provision. We think it is.

IV. Conclusion

The Secretary of Labor found that Stone & Webster

impermissibly retaliated against Douglas Harrison at Browns Ferry

in February 1993, first through demotion and then through transfer.

On the facts, we decide that substantial evidence supports the

Secretary's finding. On the law, we uphold the Secretary's

interpretation of § 5851(a) as shielding the expression of

safety-related concerns to fellow workers, when, as here, that

expression has a public dimension and fits closely into an extended

pattern of otherwise protected activity.

AFFIRMED.