San Onofre whistle-blowers less protected than others in California

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An obscure legal doctrine leaves whistle-blowers at the San Onofre nuclear plant with less legal protection than other California workers, including employees at the state’s only other nuclear plant.

San Onofre is majority owned and operated by Southern California Edison, a private company, but it sits on land leased from the Camp Pendleton Marine Corps base.

That puts the plant in a so-called federal enclave, where courts have held that many California laws, including labor laws intended to protect whistle-blowers, do not apply.

Lawsuits filed in state court by San Onofre workers who claimed that they were fired or retaliated against for reporting safety concerns, sexual harassment and other issues have been tossed out because of the plant’s location.

San Onofre, which has been out of commission for more than four months because of equipment problems, was chastised two years ago by the U.S. Nuclear Regulatory Commission for creating an atmosphere in which employees fear retaliation if they report safety concerns.

NRC and Edison officials said that the plant has made improvements in its culture since then and that workers do have whistle-blower protections under federal law. But critics say the enclave status reduces the options available to whistle-blowers and may make them more reluctant to come forward.

Edward Bussey, a former health physics technician at the plant, sued Edison in state court after he was fired in 2006 under what he said were trumped-up charges that he had falsified initials on logs documenting that certain materials had been checked for radiation. Bussey contended that he was really fired in retaliation for complaining about safety concerns to his supervisors and the NRC.

The case bounced from state to federal court twice before a federal judge dismissed it, saying Bussey’s wrongful-termination claims didn’t apply in a federal enclave. Courts have taken the view that, with a few exceptions, the enclaves are covered only by state laws that were in place before the land became federal property — in the case of Camp Pendleton, 1942.

Bussey said he and his attorney were “blindsided” by the outcome.

“The average employee out there doesn’t even know they’re working on a federal enclave, and they don’t realize that unlike the other Edison employees … people who work at San Onofre give up their state rights and a bunch of other rights working at that plant,” he said.

Bussey wasn’t the first or the last worker at the plant to run into the odd legal predicament.

In 1986, a federal judge threw out a lawsuit by a former employee of Bechtel, a contractor at the plant, in part because of the plant’s enclave status. The plaintiff, James Snow, had filed a lawsuit in state court in which he argued that he was laid off because he had complained to the NRC that the plant was in violation of emergency evacuation requirements.

Paul Diaz, a former manager at the plant, now faces a similar situation after he sued in state court last year alleging that he was fired in retaliation for reporting concerns to the NRC and that supervisors had discriminated against him because he was Latino. The case is still pending in federal court. Like Bussey, Diaz and his attorney said they were startled to find that state laws don’t apply to workers at the power plant.

Meanwhile, employees at the Diablo Canyon plant, which sits on privately owned land on California’s Central Coast, have been able to sue in state court over similar allegations.

Edison spokeswoman Jennifer Manfre said that employees at the plant are encouraged to come forward about safety concerns and that they are protected by federal whistle-blower laws even if they can’t sue in state court. Nuclear whistle-blowers can file complaints with the Occupational Safety and Health Administration and have several opportunities to appeal if their claims are rejected.

If the administrative case drags on too long, the whistle-blowers can sue in federal court. But some employees want the option of suing in state court like other California workers.

David J. Marshall, a Washington-based attorney whose firm has represented nuclear whistle-blowers, said a suit in state court may be the best option for plaintiffs in many cases, because it offers the chance of a jury trial rather than a hearing before an administrative law judge, and greater damages awarded to the plaintiff if the suit is successful.

“It’s more relief for the worker who needs to be compensated fairly, and the people who decide on that compensation are a jury of the worker’s peers,” he said.

San Onofre is not the only unlikely location to claim federal enclave status. George Lucas’ San Francisco-based studios and a number of other businesses lease land in the Presidio, a former Army base now administered by the National Park Service. The studios have used their federal enclave status to fend off discrimination suits by employees.

Roger W. Haines Jr., a former assistant U.S. attorney who has written a book about the legal peculiarities surrounding federal enclaves, said conflicting U.S. Supreme Court decisions have led to confusion in lower courts’ interpretation of the law. He argues that all state laws that don’t directly interfere with federal jurisdiction should apply in federal enclaves.

“If whistle-blower statutes are a good thing, they ought to apply everywhere, and they certainly ought to apply in the context of a nuclear power plant where people are engaged in dangerous activities,” Haines said.