The issue of whether the complainant was an employee within the
meaning of the environmental
whistleblower provisions, CAA, TSCA, CERCLA, SDWA, SWDA, and
FWPCA, is jurisdictional.
Reid v. Methodist Medical Center of Oak Ridge,
93-CAA-4 (Sec'y Apr. 3, 1995).
[Nuclear & Environmental Whistleblower Digest XIV A 1]
EMPLOYER EMPLOYEE; OWNER OF CONTRACT FIRM NOT A COVERED "EMPLOYEE"
In Demski v. Indiana Michigan Power Co., ARB No. 02 084, ALJ No. 2001 ERA 36 (ARB Apr. 9, 2004), the Complainant was the president and sole shareholder of a company that supplied contract labor for power generating plants, and had several contracts to supply workers for Respondent's Cook nuclear plant. Under the express terms of the contracts, the Complainant's company was defined as not an agent or employee of the Respondent. The Complainant alleged that the Respondent unlawfully terminated the contracts because she had reported safety concerns to Respondent's management and the NRC. The ARB found that two of the essential elements of a whistleblower claim under the ERA are that the complainant must be an employee and the respondent must be an employer. The ARB found that the undisputed facts of the case established that the Complainant was a contractor, and an employer, and not an employee of the Respondent or her company, and therefore she was not entitled to relief under the whistleblower provision of the ERA.
[N/E Digest XIV A 1]
DEFINITION OF EMPLOYEE; APPLICABILITY OF NLRA
In Boschuk v. J & L Testing,
Inc., 96-ERA-16 (ARB Sept. 23, 1997), Respondent argued that
Complainant was
not protected by the ERA because he is the natural son of the president and
sole owner of the
respondent company. Respondent contended that since the word
"employee" is not
defined in the ERA, the Board must therefore apply the definition contained in
the National
Labor Relations Act (NLRA), which specifies that "the term employee . . .
shall not
include . . . any individual employed by his parent or spouse." 29 U.S.C.
§152(3).
The ARB rejected this contention, finding that it was not bound to apply
specific legislative
exemptions contained in the NLRA to the ERA. Rather, the ARB will apply the
test set forth in
Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989) and
Nationwide
Mutual Insurance Company v. Darden, 112 S. Ct. 1344 (1992), i.e.,
the
conventional master-servant relationship as understood by common-law agency
doctrine.
XIV A 1 Employee/employer test
In Williams v. Y-12 Nuclear Weapons Plant, 95-CAA-
10 (ALJ Aug. 2, 1995), the ALJ recommended dismissal of
Respondent, Department of Energy. In regard to an ERA complaint,
the ALJ found no waiver of sovereign immunity. In regard to a
TSCA complaint, the ALJ found no waiver of sovereign immunity
except for complaints involving lead-based paint. In regard to
the CAA, SWDA, RRCA, and CERCLA, the ALJ found that the
Complainant was not an employee within the meaning of those Acts
and the employer-employee test stated in Reid v. Methodist
Medical Center of Oak Ridge, 93-CAA-4 (Sec'y Apr. 13,
1995).
XIV A 1 Definition of "employee"
In Reid v. Methodist Medical Center, 93-CAA-4 (ALJ
Mar. 29, 1993), the ALJ determined that since none of the
whistleblower provisions define "employee," the
conventional master-servant relationship as defined by common-law
agency doctrine, must be applied to determine whether a
complainant is a covered employee.
Applying common law agency doctrine, the ALJ concluded that the
employment relationship between the complainant, a physician, and
the various respondents was contractor and independent
contractor, in fact and well as in title, and therefore was not a
covered "employee".
[Editor's note: The Secretary took the position in Hill v.
Tennessee Valley Authority, 87-ERA-23 and 24 (Sec'y May 24,
1989) (decision & order of remand), essentially that a
complainant need not be an employee of the alleged discriminator
as long as he or she is somebody's "employee".
Reid, however, may be distinguishable because Dr. Reid was
found not to be anybody's "employee". To my knowledge
the Secretary has not ruled on whether an independent contractor
is covered under the Part 24-type cases.]
XIV A 1 Definition of employee
Under the CAA and the ERA "any employee" is protected.
See 42 U.S.C. §§ 5851(a), 7622(a). Such an
employee need not be charged with enforcement responsibilities
under the [ERA or] CAA.
Poulos v. Ambassador Fuel Oil Co., Inc., 86-CAA-1
(Sec'y Apr. 27, 1987) (order of remand) (explaining Brown
& Root which could be interpreted as limiting protection
to quality control inspectors).
XIV A 1 Common law master-servant standard
In Stultz v. Buckley Oil Co., 93-WPC-6 (ALJ Aug.
23, 1993), Complainant was hired as a management consultant by
Respondent on a short term basis, although there were ongoing
negotiations for a more permanent employment relationship. The
threshold issue was whether Complainant was an
"employee" within the meaning of the Federal Water
Pollution Control Act. The ALJ noted that none of the Acts that
could be applicable to the instant case included a definition of
the term "employee," and therefore turned to the United
States Supreme Court decision in Nationwide Mut. Ins. Co. v.
Darden, 112 S. Ct. 1344 (1992), in which the holding in
Community for Creative Non-Violence v. Reid, 490 U.S. 730,
109 S. Ct. 2166 (1989) was reiterated. In Reid, the Court
held that when a statute containing the term "employee"
does not helpfully define it "the conventional master-
servant relationship as understood by common-law agency
doctrine" should be applied. The Court summarized the test
as follows:
In determining whether a hired party is an employee
under the general common law of agency, we consider the
hiring party's right to control the manner and means by
which the product is accomplished. Among the other factors
relevant to this inquiry are the skill required; the source
of the instrumentalities and tools; the location of the
work; the duration of the relationship between the parties;
whether the hiring party has the right to assign additional
projects to the hired party; the extent of the hired party's
discretion over when and how long to work; the method of
payment; the hired party's role in hiring and paying
assistants; whether the work is part of the regular business
of the hiring party; whether the hiring party is in
business; the provision of employee benefits; and the tax
treatment of the hired party.
The Court also quoted NLRB v. United Ins. Co. of America,
390 U.S. 254, 258; 88 S. Ct. 988, 991 (1986), as follows:
Since the common-law test contains 'no shorthand formula
or magic phrase that can be applied to find the answer, . .
. all of the incidents of the relationship must be assessed
and weighed with no one factor being decisive.'
Applying this test, the ALJ found that Complainant was an
independent contractor because it was not shown that Respondent
exercised control over the manner and means by which results were
to be obtained, and because Complainant was paid as an
independent contractor for Federal income tax withholding
purposes.
Nonetheless, the ALJ found that because Complainant had sought
long term employment, he was accorded protection as a prospective
employee, citing the ALJ decision in Young v. Hinds, 86-
ERA-11 (ALJ Apr. 8, 1986) (the Secretary found in unnecessary to
rule on this issue on review, see Young v. Hinds, 86-ERA-
11 (Sec'y July 8, 1987)).
XIV a 1 Employee of employer other than the
respondent
In Hadden v. Georgia Power Co., 89-ERA-21 (ALJ May
21, 1990), the ALJ applied the Secretary's broad interpretation
of covered "employees" under the ERA whistleblower
provision in Hill v. Tennessee Valley Authority, 87-ERA-23
and 24 (Sec'y May 24, 1989) (decision & order of remand), to
find that although the Complainant was not an employee of the
Respondent, he was an "employee" and therefore a
covered employee under the Act. In short, a complainant need not
be an employee of the alleged discriminator.
XIV A 1 ERA protection of employees other than quality
control inspectors
In Wilson v. Bechtel Construction, Inc., 86-ERA-34
(Sec'y Feb. 9, 1988), the Secretary rejected the ALJ's conclusion
that the ERA protects only quality control inspectors from
retaliation for making internal safety complaints. See Nunn
v. Duke Power Co., 84-ERA-26 (Sec'y July 30, 1987); Poulos
v. Ambassador Fuel Oil, Inc., 86-CAA-1 (Apr. 26, 1987);
Willy v. Coastal Corp., 86-CAA-1 (June 4, 1987).
Nothing in section 5851 or its legislative history draws any
distinction between different kinds of employees. Mackowiak
v. University Nuclear Systems, Inc., 735 F.2d 1159 (1984)
does not hold that only quality control inspectors are protected
under the ERA. The Secretary has held that employees other than
quality control personnel are covered by the employee protection
provision of the ERA, see Nunn v. Duke Power Co., 84-ERA-
26 (Sec'y July 30, 1987), slip op. at 11, or held so implicitly.
See Flanagan v. Bechtel Power Corp., 81-ERA-7 (Sec'y June
27, 1986) [other citations omitted]. See also Donovan v.
Stafford Construction Co., 732 F.2d 954, 958-59 (D.C. Cir.
1984) (Employee protection provision of Mine Safety & Health
Act, 30 U.S.C. § 815(c) protected a secretary although the
section on its face only covers "miners").
XIV A 1 Darden "employee" test applied
in environmental whistleblower cases
In Reid v. Methodist Medical Center of Oak Ridge,
93-CAA-4 (Sec'y Apr. 3, 1995), the
Secretary held that he would apply the "employee" test
used in Nationwide Mutual Ins.
Co. v. Darden, 112 S. Ct. 1344 (1992), in cases involving the
environmental whistleblower
provisions of the CAA, TSCA, CERCLA, SDWA, FWPCA and the SWDA.
(An ERA claim was dropped
and was not before the Secretary for review) Darden
articulates a common-law test for
"employee" based on the general common law of agency.
The Secretary rejected the arguments of the Complainant and the
Solicitor of Labor that a more
expansive definition of "employee" should be used for
these environmental whistleblower
provisions. The Complainant proffered an "economic
realities" test used in FLSA cases.
The Solicitor proffered a Title VII analogy: cases in which
coverage is extended beyond the immediate
employer-employee relationship. The Secretary found that both of
these lines of decisions were
distinguishable, the FLSA having exceedingly broad language in
regard to this issue and expansive
legislative history absent in regard to environmental
whistleblower provisions at issue, and Title VII
having "textual asymmetry" because it protects more
than "employees", but also
"individuals" who suffer discrimination at the hands of
employers.
In Reid, the Complainant was a physician who was
recruited by a Medical Center and
its subsidiary medical management company to set up a medical
practice. The Complainant entered
into a contract with the medical management company, which
broadly provided that the Complainant
would render medical services to patients and the management
company would provide administrative,
managerial and organizational support. The Secretary detailed
the specifics of the contract and focused
on the degree of control the management company possessed over
the manner and means by which
the Complainant delivered medical services, using the test stated
in Community for Creative Non-
Violence v. Reid, 490 U.S. 730, 751-752 (1989). The
Secretary, weighing the facts presented
concluded that the Complainant failed to establish a prima facie
showing that he was an employee of
either the medical center or the management company.
An attorney employed by a covered employer is an
"employee" within the meaning of the employee
protection provisions of the CAA and other environmental
protection laws. Willy v. The Coastal Corp., 85-
CAA-1 (Sec'y June 4, 1987) (order of remand).
XIV. A. 2. a. Attorney as employee
In Willy v. The Coastal Corp., 85-CAA-1 (Sec'y June
1, 1994), Respondent fired Complainant as one of its in-house
attorneys for failing to report a telephone call to a state
agency and lying about it when asked by his supervisor; the ALJ
found after a hearing that Respondent fired Complainant both
because of his lie about the phone call and because of
Complainant's internal memorandum on Respondent's violations of
the environmental laws.
Respondent excepted on the ground that attorneys 1) they owe
special ethical obligations to their clients, 2) the statutes
were not intended to apply to attorneys, and 3) any disagreement
between a client and an attorney would be protected
whistleblowing under the ALJ's decision, impermissibly extending
the scope of the acts far beyond their intent.
The Secretary rejected Respondent's first argument based on
ethical considerations based on ethical codes and case law that
uniformly indicate that an attorney may reveal a communication or
advice to a client when the attorney and client become opponents
in a subsequent controversy, to the extent necessary to defend
his or her rights.
The Secretary noted that Respondent's second and third arguments
had been rejected in an earlier decision in the case, in which
the conclusion was that "[t]here is nothing in any of the
statutes or their legislative histories to indicate an intention
on the part of Congress to place any limitation on the meaning of
the word 'employee.'" Willy v. The Coastal
Corporation, 85-CAA-1 (Sec'y June 4, 1987), slip op. at 8.
In addition, the Secretary noted that the
consequences of Respondent's position would be
startling: a covered employer could fire an attorney who
files a formal complaint with EPA or appears as a witness at
an EPA proceeding, or even appears as a witness in a
Department of Labor hearing on a whistleblower complaint
filed by a nonlawyer. I note that other statutes regulating
the employer-employee relationship, including retaliatory
discharge laws, have been held to apply to attorneys, both
as employees of corporations and of law firms.
See, e.g., Hishon v. King &
Spalding, 467 U.S. 69 (1984) (application of Title VII
of Civil Rights Act of 1964 in sex discrimination suit
against law firm does not violate firm's First Amendment
rights); Rand v. CF Industries, Inc., 797 F. Supp.
643, 645 (N.D. Ill. 1992) (denying motion to dismiss Age
Discrimination in Employment Act claim by in-house attorney
for lack of coverage of attorneys).
Where the complainant had been employed by the respondent on
several occasions, had filed a ERA complaint after the first
period which was settled, was employed again and then laid off,
and was denied reemployment allegedly because of past poor
performance, the ALJ erred in recommending dismissal on the
ground that the complainant was not an employee of the respondent
at the time of the alleged discrimination. The Secretary stated
that several of her previous decisions were directly on
point:
In [Flanagan v. Bechtel Power Corp., 81-ERA-7
(Sec'y June 27, 1986)], a case arising under the ERA, the
complainant was an electrician who had worked for Bechtel
Corporation at various times prior to the date of alleged
discrimination. When he applied for reemployment, Bechtel
refused to rehire him. Complainant alleged that the refusal
was in retaliation for his making safety complaints to the
Nuclear Regulatory Commission. The threshold issue in
[Flanagan] was whether the ERA covers a former
employee. The Secretary adopted the ALJ's conclusion and
reasoning, holding that "the term 'employee' may
include former employees." Slip op. at 9. The
Secretary explicitly overruled [King v. Tennessee Valley
Authority, 80-ERA-1 (Sec'y May 20, 1980) and
Greenwald v. The City of North Miami Beach, 78-SWD-2
(Sec'y Apr. 14, 1980)]. Id.
Similarly, in [Chase v. Buncombe County, N.C.,
85-SWD-4 (Sec'y Nov. 3, 1986)], the Secretary held that the
employee protection provision of the Solid Waste Disposal
Act, 42 U.S.C. § 6971(a) (1982), may cover former
employees. Slip op. at 3-4. In that case, as here, the
complainant applied for reemployment after the settlement of
a previous complaint. Settlement of such a prior complaint
does not, as urged by Respondent here, preclude litigation
of an alleged separate and distinct act of discrimination
after the settlement. See also [Egenrieder v.
Metropolitan Edison/G.P.U/, 85-ERA-23 (Sec'y Apr. 20,
1987)] (blacklisting a former employee for protected
activities is prohibited under the ERA). See 29
C.F.R. § 24.2(b) (1988).
Cowan v. Bechtel Construction, Inc., 87-ERA-29
(Sec'y Aug. 9, 1989).
[N/E Digest XIV A 2 b]
FORMER EMPLOYEE
In Robinson v. Shell Oil Co.,
No. 95-1376 (Feb. 18, 1997) (available at 1997 U.S. LEXIS 690), the United
States Supreme
Court held that term "employees" in Title VII includes former
employees.
Thus, a former employee may sue a former employer for alleged retaliatory
post-employment
actions, such as negative references to prospective employers.
[Editor's note: Please note that this is a Title VII decision, and did not
involve an STAA,
or a nuclear or environmental whistleblower complaint].
FORMER EMPLOYEE; COVERAGE IF THE ALLEGED DISCRIMINATION AROSE
OUT OF THE EMPLOYMENT RELATIONSHIP
[N/E Digest XIV A 2 b]
In The Connecticut Light
& Power Co. v. Secretary of the United States Dept. of
Labor, No. 95-4094 (2d Cir. May 31, 1996) (available
at 1996 U.S. App. LEXIS 12583)(case below 89-ERA-38), the court
affirmed the Secretary's holding that a former employee of the
Respondent was an "employee" within the meaning of the
employee protection provision of the ERA because the alleged
discrimination arose out of the employment relationship: an offer
of settlement containing an improper gag provision.
XIV A 2 b Terminated employee's complaint to management
is protected
activity
In Garn v. Toledo Edison Co., 88-ERA-21 (Sec'y May
18, 1995), the Secretary
rejected the ALJ's conclusion that the Complainant's meeting with
a Vice-President for the Respondent
was not protected activity because the Complainant -- whose
employment with the Respondent had
already been terminated -- had already raised those his concerns
with the "proper official, the
ombudsman." The ALJ had been persuaded by the fact that the
Respondent had not
represented that the Vice-President or other officers were
channels for former or terminated
employees' concerns.
The Secretary held that it was sufficient that the complaints
were directed to the Respondent's
management. The Secretary wrote: "A terminated employee
might be viewed by management
as an even more serious threat to cause trouble or expose
wrongdoing, and the manager could still
retaliate by interfering with prospective employment." Slip
op. at 3 (footnote and citation
omitted).
XIV A 2 b Former employee; applicant
In Greenwald v. The City of North Miami Beach, 78-SDW-1
(Sec'y Apr. 3, 1978), aff'd,Greenwald v. North Miami
Beach, 587 F.2d 779 (5th Cir. 1979), cert. denied, 44
U.S. 826 (1979), the Complainant's complaint under the employee
protection provision of the SDWA was found to be time barred.
Subsequently, the Complainant reapplied for employment, and upon
being told that there was no vacancy, filed a complaint alleging
continuing discrimination. The Secretary adopted the following
language from the ALJ's recommended decision:
A review of the statutory language, history, and cases
provides no basis for a complaint by an applicant for a
position, unlike Title VII of the Civil Rights Act, nor is
there any basis for complaint by a former employee whose
previous employment relationship has already been subjected
to an opportunity for hearing and is now closed off by a
final order. To find jurisdiction here it would be
necessary to go behind the earlier case, Case No. 78-SDWA-1,
to find the employment relationship requisite to this
proceeding, and to reopen issues involved there. The
doctrine of res judicata bars reopening such matters which
have become final.
Therefore, absent the existence of an employer-employee
relationship, there is no subject matter jurisdiction and
the complaint must be dismissed.
Greenwald v. The City of North Miami Beach, 80-SDW-
2 (Sec'y Apr. 14, 1980).
XIV A 2 b Standing of former employee
A former employee is protected under ERA. Thus, where a
complainant was terminated on August 1, 1987, but alleged a
retaliatory act -- delayed implementation of a March 1989 EEOC
order issued in the complainant's favor because of complainant's
participation in an ERA proceeding in July 1989 -- the allegation
fit within the statute's prohibition of discrimination based on
participation in an ERA proceeding.
Grizzard v. Tennessee Valley Auth., 90-ERA-52
(Sec'y Sept. 26, 1991).
XIV A 2 b Job applicant (former employee)
In Flanagan v. Bechtel Power Corp., 81-ERA-7 (Sec'y
June 27, 1986), relying to great extent on the ALJ's analysis,
the Secretary found that the ERA definition of
"employee" may include former employees. The ALJ had
analyzed the purpose of the Act, the Senate Report, the fact that
the regulation refers to blacklisting, and analogous NLRB
authority. To this discussion the Secretary added a quotation
from the United States Supreme Court in Phelps Dodge Corp. v.
NLRB, 313 U.S. 177 (1941):
To differentiate between discrimination in denying
employment and in terminating it, would be a differentiation
not only without substance, but in defiance of that against
which the prohibition of discrimination is directed.
313 U.S. at 188.
[Editor's note: In Flanagan, the Secretary indicates that
he is overruling King v. Tennessee Valley Authority, 80-
ERA-1 (Sec'y May 20, 1980) and Greenwald v. The City of North
Miami Beach, 80-SDW-1 (Sec'y Apr. 3, 1978), to the extent
that they are inconsistent. The Secretary cites Greenwald
as 78-SDWA (1980), but the reference to 78-SDWA is obviously an
error because Greenwald v. The City of North Miami Beach,
78-SDW-1 (Sec'y Apr. 3, 1978), aff'd, Greenwald v.
North Miami Beach, 587 F.2d 779 (5th Cir. 1979), cert.
denied, 44 U.S. 826 (1979), involved Greenwald's first,
untimely complaint. The second complaint with the 80-SDW docket
number involved Greenwald's refusal to rehire complaint.
Incidently, in Greenwald, 80-SDW-1 there was something
else going on -- Greenwald's original complaint had been
dismissed as untimely and Greenwald appeared to be attempting to
resurrect his untimely complaint by the simple expedient of
forcing Respondent to discriminate again. The Greenwald
decision is a murky mix of questions of res judicata and whether
a former employee is protected. I'm not sure how this all plays
out, but I think it would be a mistake to dismiss
Greenwald as being completely overruled by
Flanagan, at least to the extent that there are res
judicata or collateral estoppel issues involved.]
XIV A 2 b Job applicant (former employee)
In King v. Tennessee Valley Authority, 80-ERA-1
(Sec'y May 20, 1980), the Secretary adopted a recommended
decision of the ALJ in which the ALJ had stated "I find
nothing in the Act which indicates that [Section 210] is to be
applied retroactively to persons whose employment ended prior to
the enactment of the statute; likewise I find nothing to indicate
that this section is to be applied to former employees who were
discharged for cause * * * The language of the statute clearly
refers to a person who is an employee, not to a persons who is
seeking to become employed."
As described more fully in the ALJ's recommended decision,
King v. Tennessee Valley Authority, 80-ERA-1 (ALJ
Mar. 28, 1980, Complainant had been discharged from
his job as a painter at a nuclear plant for bringing a firearm
onto the project in violation of a posted job rule.
Complainant's complaint was based on refused re-employment
because of complaints made to the NRC about the quality of
certain painting at the plant. The ALJ found, however, that
Complainant had been refused re-employment for the legitimate
reasons of a past discharge for unsatisfactory conduct in the
work area and the presence of more qualified applicants (on a
fourth re-application, the applicant pool was smaller and
Complainant was re-hired).
[Editor's note: A new Secretary of Labor overruled King
to the extent it conflicted with his decision in Flanagan v.
Bechtel Power Corp., 81-ERA-7 (Sec'y June 27, 1986). In
Flanagan, relying to great extent on the ALJ's analysis
rejecting King, the Secretary found that the ERA
definition of "employee" may include former employees.]
XIV A 2 b When a former employee may bring an ERA suit
A former employee may bring an employee protection suit under the
ERA as long as the alleged
discrimination is related to or arises out of the employment
relationship. Delcore v. W.J. Barney
Corp., 89-ERA-38 (Sec'y Apr. 19, 1995).
XIV A 2 b Former employee covered if discrimination
is related to or arises
out of the former employment relationship
Under remedial legislation, the term "employee" is
construed broadly to include a former
employee as long as the alleged discrimination is related to or
arises out of the employment
relationship. Delcore v. Northeast Utilities,
90-ERA-37 (Sec'y Mar. 24, 1995) (citing
several federal court decisions).
EPA filed a motion for summary decision in Emory v. United
States Environmental Protection Agency, 93-SDW-4 (ALJ
Dec. 3, 1993), contending that the Civil Service Reform Act is
the exclusive remedy for federal employee whistleblower, that the
United States and federal agencies are not covered employers, and
that federal employees are not covered employees.
In denying the motion, the ALJ found that
the Secretary rejected the argument that the Civil
Service Reform Act of 1978 provide a preemptive and
exclusive remedy for federal employee whistleblowers in
Conley v. McClellan Air Force Base, 84-WPC-1
(Sec'y Sept. 7, 1993), slip op. at 9-17, and Pogue
v. United States Dept. of Navy, 87-ERA-21 (Sec'y
May 10, 1990), rev'd on other grounds,
Pogue v. United States Dept. of Labor,
940 F.2d 1287 (9th Cir. 1987);
Complainant was an employee, and nothing in the
statutes or the legislative history of the statutes
adjudicated under Part 24 suggests exclusion of
government employees;
EPA was a "person" subject to the employee
protection provisions of all the statutes invoked
except the Clean Water Act (the United States is
expressly included as a person under the ERA, CAA,
CERCLA, SDWA and SWDA, and by reference to the
citizen's suit sections of the TSC);
CAA, CERCLA, CWA, SDWA, SDWA all have virtually
identical federal facilities provisions. The federal
facilities provision of the CWA was found by the
Secretary in Conley to subject the federal
government to all requirements of the CWA; CERCLA's
federal facilities provision was interpreted much the
same way in Pogue.
[Nuclear and Environmental Whistleblower Digest XIV A 2 c]
COVERED EMPLOYERS; ENERGY POLICY ACT OF 2005; THE NRC; NRC CONTRACTORS AND SUBCONTRACTORS; DEPARTMENT OF ENERGY
On August 8, 2005, President Bush signed the Energy Policy Act of 2005. The Act amends the Energy Reorganization Act to extend liability under the ERA whistleblower provision to the Nuclear Regulatory Commission, contractors or subcontractors of the Commission, and the Department of Energy.
Independent contractors may be covered employees under the
employee protection provisions of the ERA and analogous statutes.
See, e.g., Royce v. Bechtel Power Corp., 83-ERA-3 (ALJ
Mar. 24, 1983), aff'd (Sec'y July 11, 1985) (temporary
contract worker) and Faulkner v. Olin Corp., 85-SWD-3 (ALJ
Aug. 16, 1985), aff'd (Sec'y Nov. 18, 1985) (under Solid
Waste Disposal Act).
Crosier v. Portland General Electric Co., 91-ERA-2
(Sec'y Jan. 5, 1994).
[Nuclear and Environmental Whistleblower Digest XIV A 2 d]
COVERED EMPLOYEE; USE OF COMMON LAW DARDEN FACTORS; COMPLAINANT WHO WAS THE SOLE SHAREHOLDER OF CORPORATIONS THAT SUPPLIED CONTRACT SERVICES WAS NOT EMPLOYEE
In Demski v. USDOL, No. 04-3753 (6th Cir. Aug. 17, 2005) (case below ARB No. 02-084, ALJ No. 2001-ERA-36), the Petitioner was the president and sole shareholder of corporations that supplied contract labor and technical knowledge to power-generating plants, including a contract to main ice condensers. The Petitioner learned of serious safety problems with an ice condenser and reported those problems to the power plant. The power plant thereafter terminated the ice condenser contract, refused the Petitioner's bids to continue on two other contracts, and revoked employee access badges for the Petitioner and her employees. The ALJ and the ARB granting summary decision finding that the Petitioner was not an "employee" within the meaning of the ERA whistleblower provision, applying the common law definition of employee stated in Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23 (1992). The Sixth Circuit affirmed the use of Darden to define the meaning of an "employee" under the ERA, and the weighing of the Darden factors in this case to find that the Petitioner was not an employee.
DEFINITION OF "EMPLOYEE"; SIXTH CIRCUIT'S
APPROVAL OF DOL'S USE OF DARDEN TEST FOR
CONTRACTORS
[N/E Digest XIV A 2 d]
In Reid v. Secretary of Labor, No. 95-3648 (6th Cir.
Dec. 20, 1996)(unpublished decision available at 1996 U.S. App. LEXIS
33984)(case below, 93-CAA-4), the Sixth Circuit affirmed the Department of
Labor's use of the common law definition of "employee"
enunciated by the Supreme Court in Nationwide Mutual Ins., Co. v.
Darden, 503 U.S. 318, 117 L.Ed. 2d 581, 112 S.Ct. 1344 (1992), to
determine whether an independent contractor is an "employee"
within the meaning of the whistleblower statutes.
XIV A 2 d EMPLOYMENT RELATIONSHIP; SUBCONTRACTOR
In Stephenson v.
National Aeronautics & Space Administration,
94-TSC-5 (Sec'y Sept. 28, 1995), the Secretary reconsidered
a decision that even though the Complainant had failed to
counter Respondent's Fed. R. Civ. P. 12(b)(1) motion to
dismiss based on Complainant's not being an employee within
the meaning of the TSCA, that defense could not be raised
prior to hearing because the Respondent had previously
raised a 12(b)(6) motion to dismiss. Although the
reconsideration decision focused on the relationship between
12(b)(1), 12(b)(6) and Rule 56 and the standards applied to
such motions, the Wage and Hour Administrator position in a
request for opportunity to participate in the
reconsideration may be of interest. Request by the Wage
and Hour Administrator for Opportunity to Participate
(filed in Case No. 94-TSC-5 Sept. 22, 1995). The ALJ had
originally recommended dismissal on the ground that the
Complainant was an employee of Martin Marietta and not NASA,
relying on Reid v.
Methodist Medical Center of Oak Ridge, 93-CAA-4
(Sec'y Apr. 3, 1995), appeal docketed No. 95-3648
(6th Cir. June 1, 1995). The Administrator raised the
question whether the subcontractor relationship between the
Complainant's employer and the Respondent makes the case
distinguishable from Reid. The Administrator
suggested that employer liability may be found pursuant to
Hill v. Tennessee Valley Authority, 87-ERA-23 (Sec'y
May 24, 1989). The Secretary did not address this point in
the September 29, 1995 Order of Remand.
See alsoVarnadore v. Oak Ridge National
Laboratory, 95-ERA-1 (ALJ Sept. 20, 1995) (ALJ
recommended dismissal of DOE where Complainant was employed
by Martin Marietta, which operates DOE's Oak Ridge
facility).
XIV A 2 d Independent contractor
Independent contractors may be covered employees under the
employee protection provisions of the ERA and analogous statutes.
See, e.g., Royce v. Bechtel Power Corp., 83-ERA-3 (ALJ
Mar. 24, 1983), aff'd (Sec'y July 11, 1985) (temporary
contract worker) and Faulkner v. Olin Corp., 85-SWD-3 (ALJ
Aug. 16, 1985), aff'd (Sec'y Nov. 18, 1985) (under Solid
Waste Disposal Act).
Crosier v. Portland General Electric Co., 91-ERA-2
(Sec'y Jan. 5, 1994).
XIV A 2 d Independent Contractor
In McAllen v. U.S. Environmental Protection Agency,
86-WPC-1 (ALJ Nov. 28, 1986), settled while on review before the
Secretary (Sec'y May 5, 1987), the Complainant was hired by
B.E.S. Envirnomental Specialists (BES) to work with the EPA on
the Northwestern Oil Spill Project (Project). The Project
identified oil spills which posed an actual or potential water
pollution problem. Although the Complainant originally
approached the EPA about employment with the Project, since the
EPA had a hiring freeze, she was told to seek employment with BES
and work for the EPA on a contract basis.
While working with the EPA on the Project, the Complainant
expressed criticisms and concerns about funds being spent
improperly, which she believed jeopardized the environmental
cleanup program. These complaints took the form of internal
reports to her supervisors as well as reports to parties outside
the Project. Subsequently, the Complainant's contract was
terminated without warning.
The ALJ held that although the Complainant was a contractor with
the EPA, for the purposes of the Act, she was an employee. In
making this determination, the ALJ cited Faulkner v.
Olin Corporation, 85-SDW-3 (ALJ Aug. 16, 1985),
adopted (Sec'y Nov. 18, 1985).
XIV A 2 d Right-to-control test
In Landers v. Commonwealth-Lord Joint Venture, 83-
ERA-5 (ALJ May 11, 1983), adopted (Sec'y Sept. 9, 1983),
the ALJ concluded that Complainant, a contract employee, was an
employee within the purview of section 5851(a) of the ERA. The
ALJ relied on the common-law right-to-control test, and NLRB case
law to the effect that an employee need not be in a technical
employer-employee relationship with any particular employer in
order to receive protection from threats of coercion. In finding
Complainant to be an "employee" under section 5851, the
ALJ relied on Respondent's involvement in the selection process,
the everyday control it exercised, its common supervision of all
employees, and that Respondent unilaterally determined the
termination of Complainant's employment, notwithstanding evidence
that a job shop prepared Complainant's paycheck, withheld usual
deductions and provided workers' compensation.
[Editor's note: The 7th Circuit published a decision in which it
denied a stay of the Secretary's reinstatement order pending
review by that court. Commonwealth-Lord Joint Venture v.
Donovan, 724 F.2d 67 (7th Cir. 1983). Evidently the case was
resolved in an unpublished decision, of which I do not have a
copy.]
XIV A 2 d Independent contractor
In Stultz v. Buckley Oil Co., 93-WPC-6 (ALJ Aug.
23, 1993), Complainant was hired as a management consultant by
Respondent on a short term basis, although there were ongoing
negotiations for a more permanent employment relationship. The
threshold issue was whether Complainant was an
"employee" within the meaning of the Federal Water
Pollution Control Act. The ALJ noted that none of the Acts that
could be applicable to the instant case included a definition of
the term "employee," and therefore turned to the United
States Supreme Court decision in Nationwide Mut. Ins. Co. v.
Darden, 112 S. Ct. 1344 (1992), in which the holding in
Community for Creative Non-Violence v. Reid, 490 U.S. 730,
109 S. Ct. 2166 (1989) was reiterated. In Reid, the Court
held that when a statute containing the term "employee"
does not helpfully define it "the conventional master-
servant relationship as understood by common-law agency
doctrine" should be applied. The Court summarized the test
as follows:
In determining whether a hired party is an employee
under the general common law of agency, we consider the
hiring party's right to control the manner and means by
which the product is accomplished. Among the other factors
relevant to this inquiry are the skill required; the source
of the instrumentalities and tools; the location of the
work; the duration of the relationship between the parties;
whether the hiring party has the right to assign additional
projects to the hired party; the extent of the hired party's
discretion over when and how long to work; the method of
payment; the hired party's role in hiring and paying
assistants; whether the work is part of the regular business
of the hiring party; whether the hiring party is in
business; the provision of employee benefits; and the tax
treatment of the hired party.
The Court also quoted NLRB v. United Ins. Co. of America,
390 U.S. 254, 258; 88 S. Ct. 988, 991 (1986), as follows:
Since the common-law test contains 'no shorthand formula
or magic phrase that can be applied to find the answer, . .
. all of the incidents of the relationship must be assessed
and weighed with no one factor being decisive.'
Applying this test, the ALJ found that Complainant was an
independent contractor because it was not shown that Respondent
exercised control over the manner and means by which results were
to be obtained, and because Complainant was paid as an
independent contractor for Federal income tax withholding
purposes.
Nonetheless, the ALJ found that because Complainant had sought
long term employment, he was accorded protection as a prospective
employee, citing the ALJ decision in Young v. Hinds, 86-
ERA-11 (ALJ Apr. 8, 1986) (the Secretary found in unnecessary to
rule on this issue on review, see Young v. Hinds, 86-ERA-
11 (Sec'y July 8, 1987)).
XIV A 2 d Independent contractors
In Samodurov v. Niagara Mohawk Power Corp., 89-ERA-
20 and 26 (ALJ Dec. 12, 1989), the ALJ concluded that an
independent contractor whose unsolicited resume was rejected was
not a protected "employee" under the whistleblower
provision of the ERA. The ALJ distinguished the decision of the
ALJ in Young v. Hinds, 86-ERA-11 (ALJ Apr. 9, 1986) on the
ground that in that case the complainant was attending a training
session whereas in the instant case the complainant never was
hired nor asked to report to the power plant.
Young was also distinguished on the ground that the
complainant presented himself as an independent contractor.
[Editor's note: The ALJ had earlier dismissed the complaints
against Mohawk Power Corporation based on a settlement agreement.
General Physics Corporation, however, remained as a respondent in
89-ERA-20. The Secretary's Final Order of Dismissal date March
28, 1990 references the ALJ's December 12, 1989 decision, but
simply affirms the settlement agreement and does not address the
disposition of the complaint against General Physics.]
XIV A 2 d Physician working through management
company
See Reid v. Methodist Medical Center of Oak Ridge,
93-CAA-4 (Sec'y Apr. 3, 1995),
casenoted in more detail at XIV A 1, finding
that a physician
recruited by a medical management
company and hospital to set up a practice with managerial and
organizational support from the
management company was not an "employee" within the
meaning of the environmental
whistleblower provisions.
In Plumley v. Federal Bureau of Prisons, 86-CAA-6
(ALJ Dec. 31, 1986) (order denying motion to dismiss),
Complainant was a prison inmate. Respondent contended in a
motion to dismiss that Complainant is not an employee under the
whistleblower provisions of the CAA and the TSC because (1) a
traditional employer-employee relationship does not exist; (2)
such an interpretation is not within the Acts' purpose; and (3)
the safety of the prison environment requires such a finding.
The ALJ looked to the Black's Law Dictionary definition of
"employee" and applied a "right to control and
direct" test and a "payment of wages" test. Since
inmates had a supervisor, could be hired or fired, and were paid
wages, the ALJ found that an employer-employee relationship
exists.
Second, the ALJ found that close consideration of the CAA and the
TSCA revealed no distinction based on whether violations were
reported by civilian or prison-inmate employees.
Finally, the ALJ rejected Respondent's contention that permitted
prison-inmates to file DOL whistleblower suits would disrupt the
orderly running of the prison by laying the foundation for mass
disobedience. According to the ALJ, all it does is allow an
inmate the opportunity to report violations -- the manner in
which complaints are filed could still be controlled by prison
officials.
[Editor's note: The parties later settled this case, so the
Secretary never reviewed these rulings by the ALJ]
[N/E Digest XIV A 2 e]
EMPLOYEE; PRISON INMATE NOT AN EMPLOYEE UNDER CAA OR TSCA
In Coupar v. U.S. Dept. of
Labor, No. 95-70400
(9th Cir. Jan. 30, 1997) (available at 1997 U.S. App. LEXIS 1523)(case below
92-TSC-6), the
Seventh Circuit held that a prison inmate who works for Federal Prison
Industries (a government
corporation whose purpose is to provide work to inmates confined in federal
institutions) is not
an employee within the meaning of the whistleblower provisions of the Clean
Air Act, 42 U.S.C.
§ 7622, and the Toxic Substances Control Act, 15 U.S.C. § 2622
because the
economic reality of this relationship is "penological, not
pecuniary." Slip op. at *7,
citing Hale v. Arizona, 993 F.2d 1387, 1393 (9th Cir.) (en banc),
cert. denied,
510 U.S. 946, 126 L. Ed. 2d 335, 114 S. Ct. 386 (1993).
The court distinguished Community for Creative Non-Violence v. Reid,
490 U.S.
730, 739, 104 L. Ed. 2d 811, 109 S. Ct. 2166 (1989) and Nationwide Mutual
Insurance Co.
v. Darden, 503 U.S. 318, 117 L. Ed. 2d 581, 112 S. Ct. 1344 (1992), on the
ground that
those tests are only useful for determining whether an individual is an
employee or an
independent
contractor. Here the problem is that work as a prisoner made Complainant
neither an employee
nor an independent contractor.
XIV A 2 e Prison inmate
In Teves v. Federal Prison Industries (UNICOR), 91-
CAA-1 (Apr. 25, 1991) and Nottingham v. Federal Prison
Industries (UNICOR), 91-CAA-2 (ALJ Apr. 23, 1991), the
ALJ held that a prison inmate is not an employee within the
meaning of the employee protection provisions of either the Clean
Air Act or the Toxic Substances Control Act. This finding was
based on the rationale that the Complainant's status arises out
of incarceration and not a voluntary contract for hire.
The ALJ disagreed with the decision of the ALJ in Plumley v.
Federal Bureau of Prisons, 86-CAA-6 (ALJ June 22, 1987),
which indicated that federal prison inmate workers were employees
entitled to protection under the CAA and TSC. [Editor's note:
Plumley was settled, and the Secretary did not rule on
this point of law]
The ALJ recognized that the term "employee" should be
broadly construed under the present statutory provisions, but
declined believed that to extend protection to prisoners would
convolute the normally recognized concept of an employer-employee
relationship. He also cited authority from various Fair Labor
Standards Act decisions.
XIV A 2 e Prison inmate
In Coupar v. Federal Prison Industries/Unicor, 92-
TSC-6 and 8 (ALJ June 11, 1992), the ALJ cited Community for
Creative Non-Violence v. Reid, 490 U.S. 730 (1989), in
determining whether a federal prison inmate is an
"employee" for purposes of the TSCA and the CAA:
"when Congress has used the term 'employee' without defining
it," the Court has "concluded that Congress intended to
describe the conventional master-servant relationship as
understood by common law agency doctrine." Reid, 490
U.S. at 739-40. Since "employee" is not defined by the
TSCA or the CAA, the ALJ concluded that the conventional master-
servant relationship should be applied, and looked specifically
to the Restatement (Second) of Agency § 220(2) (1958) for
guidance.
Noting that there was no prescription on utilizing traditional
employment tests to inmates, citing Baker v. McNeil Island
Corrections Center, 859 F.2d 124 (9th Cir. 1988) (inmate was an
"employee" for purposes of Title VII), the ALJ looked
at Respondent's right to control the work (Respondent had the
right and did closely regulate the manner of work), other
elements of control and supervision (Respondent supplied the
instrumentalities and tools, the work site, and other factors),
the nature of the hiring party (a government corporation that
"recruits" inmates), the nature of the work
(manufacturing of chairs, helmets and lockers), the method of
payment and employee benefits (workers did not appear to pay tax,
but Respondent does use a traditional compensation package
including pay grades, overtime, longevity pay, vacation credit,
etc.). Based on these circumstances, and taking into
consideration the remedial nature of the TSCA and the CAA and the
strong public policy of fostering open communication, the ALJ
concluded that Respondent's workers are employees within the
meaning of the employee protection provisions of the TSCA and the
CAA.
XIV A 2 e Prison inmate
In Coupar v. Federal Bureau of Prisons, 92-TSC-12
(ALJ May 13, 1994), the ALJ concluded that a federal prison
inmate who worked for the Federal Prison Industries is not an
"employee" for purposes of the whistleblower provisions
of the CAA and the TSCA because the relationship is one arising
out of incarceration and not a voluntary employment
relationship.
XIV A 2 e Prison inmate
Looking to holdings in cases involving the FLSA for guidance, and
finding them better reasoned than one ALJ decision and one
decision involving Title VII of the Civil Rights Act, the ALJ in
Bryant v. Unicor/Federal Prison Industries, 92-CAA-
4 (ALJ Oct. 23, 1992), held that a prison inmate is not an
employee within the meaning the employee protection provisions of
the CAA or the TSCA. A prison inmate's relationship with the
prison arises out of his or her incarceration, and not a
voluntary contract to work.
XIV A 2 e Federal prison inmate is not an
"employee' under the CAA or
TSCA
In Coupar v. Federal Correctional Institution, El Reno,
Oklahoma, 90-TSC-1 and 91-TSC-3 (Sec'y Feb. 28, 1995), the Secretary held that the
Complainant, a prisoner incarcerated at a
federal correctional facility, a is not an employee within the
meaning of the CAA or the TSCA, and
therefore could not invoke the employee protection provisions of
those statutes.
In Coupar, the Complainant worked under the
supervision of a prison industry, which
was a corporation owned and operated by the federal government.
The Secretary concluded that where the term "employee"
is not defined in the statute, it
should be given its conventional master-servant meaning under
common-law agency doctrine, citing
Community for Creative Non-Violence v. Reid, 490 U.S. 730
(1989) and Nationwide Mutual
Insurance Co. v. Darden, 112 S. Ct. 1344, 117 L. Ed. 2d 281
(1992). The Secretary found that a
conventional master-servant relationship did not exist, the
relationship being penological and not
economic.
The Secretary noted that Congress had enacted legislation to
enable the Attorney General and the
Bureau of Prisons to establish rules and regulations governing
the conditions of confinement. He
concluded that Congress would not work a substantial change in
prisoner rights without careful study
and consideration, which was missing on this issue in the
legislative history of the CAA and the TSCA.
Although he recognized that not including prisoners within the
protection of the whistleblower provision
of the CAA and TSCA may result in some hazards going unreported,
absent clear legislative intent to
cover prisoners he would not interject "the Labor Department
into the internal administration of the
nation's prison system." Slip op. at 6.
But seeDelaney v. Massachusetts Correctional
Industries, 90-TSC-2 (Sec'y Mar.
17, 1995), involving a prisoner at a state correctional facility,
in which the Secretary did not make any
reference to whether a state prisoner is covered under the
TSCA.
In Slavin v. City of St. Augustine, Florida, ARB No. 07-002, ALJ No. 2006-CER-4 (ARB Mar. 31, 2008), the Complainant claimed that the Respondents discriminated against him in violation of CERCLA after he reported to Federal authorities that the City of St. Augustine, Florida, had dumped hazardous material into a city reservoir. OSHA and the ALJ dismissed the complaint on the ground that the Complainant was not an employee. The Complainant argued that case law recognizes that employment applicants have cognizable claims under laws like CERLCA, and that his complaint should not be dismissed because the Respondents knew that he was considering running for City Commissioner, a paid position, and in fact he later filed to run for that position. The ARB agreed that its caselaw permits employment applicants to bring whistleblower actions under laws similar to the whistleblower provision of CERCLA, but dismissed the complaint because the Complainant had not filed (i.e., applied) to run for City Commissioner until three months after the alleged discrimination, and because no authority supported the proposition that CERCLA covers "perceived potential applicants."
XIV A 2 f Prospective
employee
InYoung v. E.H. Hinds, 86-ERA-11 (ALJ Apr 8,
1986), the ALJ addressed the issue of whether the Complainant was
an employee of the Respondent at the time of his discharge. The
Area Director of the Wage and Hour Division determined that the
Complainant was not entitled to protection under the ERA because
he was a prospective employee. The ALJ noted that the ERA
employee protection provision was patterned after the employee
protection provision of the NLRA and that both share a broad,
remedial purpose of protecting workers from retaliation based on
their concerns for safety and quality. The ALJ stated that the
employee protection provision of the NLRA has been interpreted
broadly to prevent information from being suppressed by employer
intimidation of prospective employees. He added that the
identical purpose is served by a liberal interpretation of the
employee protection provisions of the ERA. Consequently, he
concluded that the term employee should be interpreted broadly
enough to include prospective employees. The ALJ stated,
however, that as a factual matter, the Complainant's status was
not one of a prospective employee, but rather as an employee
itself. The Complainant was under the Respondent's supervision
and control while he was at the power plant. Additionally, the
Complainant was obligated to attend a training session and was
compensated for the time he spent at the plant, from which
compensation the Respondent deducted social security and
withholding taxes. Accordingly, the ALJ found that the
Complainant was an employee of the Respondent at the time of the
discharge. [Editor's note: The Secretary adopted the ALJ's
ruling that the Complainant was an employee, and therefore, did
not rule on whether a prospective employee is accorded protection
under the ERA whistleblower provision. See Young v. E.H. Hinds,
86-ERA-11 (Sec'y July 8, 1987).]
XIV A 2 f Job applicant is a covered employee
In Stultz v. Buckley Oil Co., 93-WPC-6 (Sec'y June
28, 1995), the Complainant
worked as a management consultant for the Respondent, during
which various negotiations took place
in which the Complainant unsuccessfully sought an arrangement to
purchase the Respondent, and in
which proposals and counter proposals about an employment
relationship as general manager were
discussed. In the end, the Respondent chose not to extend the
consulting relationship and not to hire
the Complainant as general manager.
The Secretary agreed with the ALJ that since the Complainant
sought long term employment with the
Respondent, he was a covered employee for purposes of the
whistleblower statutes. The Secretary
has held that applicants for employment are covered employees.
XIV A 2 f Union contract that defines applicant who
takes test as an applicant
Where under Union Contract, a welder is "hired" and
paid for the day he takes a welding test in application for a
job, Respondent did not dispute that such "hiring"
brought an employee protection complaint under the jurisdiction
of the ERA. Crider v. Pullman Power Products
Corp., 82-ERA-7 (ALJ Oct. 5, 1982), settled while
under review (Sec'y Mar. 22, 1984).
XIV A 2 f Prospective employee
In Stultz v. Buckley Oil Co., 93-WPC-6 (ALJ Aug.
23, 1993), Complainant was hired as a management consultant by
Respondent on a short term basis, although there were ongoing
negotiations for a more permanent employment relationship. The
threshold issue was whether Complainant was an
"employee" within the meaning of the Federal Water
Pollution Control Act. The ALJ noted that none of the Acts that
could be applicable to the instant case included a definition of
the term "employee," and therefore turned to the United
States Supreme Court decision in Nationwide Mut. Ins. Co. v.
Darden, 112 S. Ct. 1344 (1992), in which the holding in
Community for Creative Non-Violence v. Reid, 490 U.S. 730,
109 S. Ct. 2166 (1989) was reiterated. In Reid, the Court
held that when a statute containing the term "employee"
does not helpfully define it "the conventional master-
servant relationship as understood by common-law agency
doctrine" should be applied. The Court summarized the test
as follows:
In determining whether a hired party is an employee
under the general common law of agency, we consider the
hiring party's right to control the manner and means by
which the product is accomplished. Among the other factors
relevant to this inquiry are the skill required; the source
of the instrumentalities and tools; the location of the
work; the duration of the relationship between the parties;
whether the hiring party has the right to assign additional
projects to the hired party; the extent of the hired party's
discretion over when and how long to work; the method of
payment; the hired party's role in hiring and paying
assistants; whether the work is part of the regular business
of the hiring party; whether the hiring party is in
business; the provision of employee benefits; and the tax
treatment of the hired party.
The Court also quoted NLRB v. United Ins. Co. of America,
390 U.S. 254, 258; 88 S. Ct. 988, 991 (1986), as follows:
Since the common-law test contains 'no shorthand formula
or magic phrase that can be applied to find the answer, . .
. all of the incidents of the relationship must be assessed
and weighed with no one factor being decisive.'
Applying this test, the ALJ found that Complainant was an
independent contractor because it was not shown that Respondent
exercised control over the manner and means by which results were
to be obtained, and because Complainant was paid as an
independent contractor for Federal income tax withholding
purposes.
Nonetheless, the ALJ found that because Complainant had sought
long term employment, he was accorded protection as a prospective
employee, citing the ALJ decision in Young v. Hinds, 86-
ERA-11 (ALJ Apr. 8, 1986) (the Secretary found in unnecessary to
rule on this issue on review, see Young v. Hinds, 86-ERA-
11 (Sec'y July 8, 1987)).
XIV A 2 f Job applicant
In Samodurov v. General Physics Corp., 89-ERA-20
(Sec'y Nov. 16, 1993), the ALJ found that Complainant was not an
"employee" under the ERA's employee protection
provisions because he was an independent contractor whose only
connection with Respondent was its rejection of his employment
based on an unsolicited resume. The Secretary disagreed, stating
that it was well established that the ERA covers applicants for
employment. The Secretary noted that although he initially
forwarded his resume without regard to a specific opening,
Complainant was later invited to send an updated resume in
response to an announcement of openings in quality assurances.
The Secretary also did not consider it a distinguishing factor
that Complainant sought to be hired as an independent contractor.
The Secretary noted that in determining whether a contractor is
an employee within the ERA's protection, the decisions examine
the degree of control or supervision by the respondent. In the
instant case, since Complainant was not hired, there was no
evidence of the degree of control, but the Secretary summarily
dismissed that problem, stating: "The absence of such
information in this complaint of an alleged discriminatory
refusal to hire does not preclude a determination that
[Complainant] was a covered employee. Accordingly, I find that,
as an applicant for employment as a contractor, [Complainant] was
a covered employee."
In Anderson v. Metro Wastewater Reclamation District, ARB No. 01 103, ALJ No. 1997 SDW 7 (ARB May, 29, 2003), Complainant argued that, while she was not an employee of Respondent as it is commonly defined, she was in fact employed by Respondent as a director for the Denver area wastewater reclamation district and received compensation for her service. The ARB, although not definitively reaching the issue because it was raised for the first time on appeal, strongly suggested in its decision that under the terms of her appointment, she most decidedly did not have an employer employee relationship with Respondent, and therefore did not have standing as an "employee" under th whistleblower provisions of the ERA and environmental statutes.
In Coupar v. Federal Prison Industries/Unicor, 92-
TSC-6 and 8 (ALJ May 8, 1992) (order granting request for
subpoenas), the ALJ had occasion to address subject matter
jurisdiction. Respondent contended that the ALJ should not issue
certain subpoenas because Complainant assertedly was not an
"employee" within the meaning of the Acts under which
he brought his complaint.
Reviewing federal decisions and the decisions of the Secretary of
Labor, the ALJ concluded that an ALJ has jurisdiction to hear a
whistleblower case if the case is of a class that the judge has
been given the power to hear, and the respondent employer is of a
type that is covered by the statute or statutes in question.
The ALJ found that TSCA applies to all federal entities unless
excepted, see 15 U.S.C. § 2619, and that Respondent was
therefore an employer over which the ALJ had subject matter
jurisdiction. The issue of whether Complainant (a federal
prisoner) was an employee was a finding of fact to be determined.
[Editor's note: Respondent's employees refused to comply with
the subpoenas. SeeCoupar v. Federal Prison
Industries/Unicor, 92-TSC-6 and 8 (ALJ June 11, 1992).]
The ALJ revisited the subject matter
jurisdiction question in his
Recommended Decision and Order. Coupar v. Federal Prison
Industries/Unicor, 92-TSC-6 and 8 (ALJ June 11, 1992).
The ALJ concluded there that "an ALJ has jurisdiction over
whistleblower cases where (1) the employer is subject to the
whistleblower statute and (2) the complaint alleges a violation
of the statute."
[Editor's note: I would guess that Judge Smith's real view is
that the Secretary misuses "jurisdiction" when
referring to a non-covered employer. This seems to me to be as
much a question of fact as the employee question. Both employer
and employee issues are threshold issues -- not jurisdictional,
but an element of the case that if not established precludes
recovery. This seems to comport better with the federal case
cited by Judge Smith (I think he endeavors to fit the Secretary's
cases into this scheme, but not very convincingly. That federal
case states: "Subject matter jurisdiction is 'the power to
adjudge concerning a general question involved and is not
dependent upon the state of facts which may appear in a
particular case. . . . It is the power to hear and determine
causes of the class in which the particular controversy belongs.
. . .'" Edwards v. Director, OWCP, 932 F.2d 1325,
1328-29 (9th Cir. 1991) (quoting Ramos v. Universal Dredging
Corp., 653 F.2d 1353, 1357 (... 1981)).]
[Nuclear and Environmental Whistleblower Digest XIV B 1]
EMPLOYER-EMPLOYEE RELATIONSHIP; COMPLAINANT'S BARE ASSERTION OF A CONSPIRACY INADEQUATE TO ESTABLISH TRIABLE ISSUE OF FACT
In Seetharam v. General Electric Co., ARB No. 03-029, ALJ No. 2002-CAA-21 (ARB May 28, 2004), the Complainant alleged that his former employers and several other companies conspired to discriminate against him because of his protected activities under various environmental statutes. The Respondents filed motions for summary decision based on the contention that they were not the Complainant's employers and had no employment relationship with him, and the presiding ALJ dismissed the complaint on that basis. On appeal to the ARB, the Complainant argued that the Respondents affected the terms and conditions of his employment -- resulting in his discharge -- " because they had mutual business dealings as vendors, contractors, lenders, or partners, which rendered them 'a joint enterprise' that conspired to violate the environmental protection laws and blacklist him." Slip op. at 3, citing Complainant's brief. The ARB noted that several Respondents submitted affidavits in support of their motions for summary decision showing that they either never employed the Complainant or that they had no influence or control over his subsequent employment. All Respondents asserted that they had nothing to do with the Complainant's reassignment or discharge. The ARB found that such affidavits shifted the burden to the Complainant to produce enough evidence to create a triable issue of fact regarding the employer-employee relationship, which he failed to do -- Complainant's bare allegations of conspiracy being inadequate to create a genuine issue of material fact. Thus, the ARB affirmed the ALJ's dismissal of the complaint.
[Editor's note: The company with which the Complainant was employed when discharged is the subject of a separate complaint which was not part of the instant proceeding].
[Nuclear & Environmental Whistleblower Digest XIV B 1] EMPLOYER; JOINT EMPLOYEE STANDARD
In Gass v. U.S. Dept. of Energy, 2002 CAA 2 (ALJ Nov. 20, 2002), Complainant alleged that she had been retaliated against by Lockheed Martin Energy Systems (LMES) for protected activity, and had pursued a remedy through the Department of Energy's Office of the Inspector General. She filed a whistleblower complaint with DOL. During the adjudication of this complaint, she filed a FOIA request with DOE seeking documents related to DOE IG's inquiry on her complaint. DOE informed Complainant that the requested information had been destroyed, and Complainant filed the instant whistleblower complaint, alleging that the destruction of the documents was a violation of the environmental whistleblower laws, and that DOE should be considered a "joint employer" with LMES and therefore properly named as a Respondent. The ALJ analyzed in his recommended decision whether DOE was an "employer" under the Darden common law employment standard, and quickly determined that DOE was not Complainant's employer under that standard. The ALJ then turned to the Stephenson "acting in the capacity of an employer" (joint employer) test. The ALJ found that DOE did not change, alter or otherwise interfere with Complainant's employment with LMES within the DOE/LMES contractual framework. The ALJ also found that finding a jurisdictional basis for finding DOE to be Complainant's employer based on theories of adverse inferences based on destruction of evidence and that loss of the evidence so interferred with her case against LMES that it amounted to a substantial interference by DOE of work privilege, relied on unwarranted and unreasonable inferences.
[Nuclear and Environmental Digest XIV B 1]
DERIVATIVE LIABILITY
In Ruud v. Westinghouse Hanford Co., 1988-ERA-33 (ALJ Dec. 8,
1998), the ALJ had found in a prior recommended decision, that the corporate connection
between Westinghouse Hanford Company and Westinghouse Savannah River Company was
close enough to attribute the actions of one corporation to the other for purposes of
whistleblower protection. The ARB had found that the ALJ's conclusions in this respect were
fully supported by the record before the ALJ, but remanded for additional fact-finding and
consideration of appropriate relief.
On remand, Respondent presented testimony tending to show that the corporations were
separate and distinct, but the ALJ found the declarations lacking in credibility, having been made
by managers or former managers for Respondent who engaged in retaliatory actions, and many
of whom harbored personal antagonism toward Complainant. The ALJ also found that the
Board's holding on the question of WSRC responsibility now constituted the law of the case.
The ALJ also addressed Respondent's citation of United States v. Bestfoods, 118
S.Ct. 1876 (1998), a CERCLA case not involving the employee protection provision, in which
the Supreme Court held that only when the corporate veil may be pierced as a matter of corporate
law can a parent corporation be charged with derivative liability. The ALJ indicated that if
Bestfoods applies, Complainant probably could not show that derivative liability applies,
but concluded that because of a concession by Complainant in his brief on remand, and without
further instructions from the Board, he would not attempt to make any findings pursuant to
Bestfoods.
[N/E Digest XIV B 1]
EMPLOYERS; CORPORATE SUBSIDIARIES
In Ruud v. Westinghouse Hanford
Co., 88-ERA-33 (ARB Nov. 10, 1997), the ARB adopted the ALJ's
finding that
the corporate connection between two subsidiaries of Westinghouse Electric Corporation (the
Hanford reservation and the Savannah River facility) had sufficiently close connections to
attribute the actions of one to the other for purposes of whistleblower protection. The factors
considered included that, although the companies maintained separate employment benefit
plans,
employees transferred from one company to another without termination of employment and
application for reemployment; both subsidiaries' stock option plans provided for purchase of
Westinghouse Electric Corporation stock through the subsidiaries; the subsidiaries shared
employees on task team assignments; management employees moved from subsidiary to
subsidiary during their careers.
PARTIES; UNINCORPORATED DIVISION
[N/E Digest XIV B 1]
Oak Ridge National Laboratory is an unincorporated division
of Energy Systems, Inc., and is not a legal entity. Therefore,
in Varnadore v. Oak Ridge National Laboratory, 92-
CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996), it
was dismissed as a party. The same is true of other divisions of
Energy Systems, Inc.
In Varnadore v. Oak Ridge National Laboratory,
92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996),
Lockheed Martin and Lockheed Martin Technologies were dismissed
as Respondents where they were merely parent companies of the
Complainant's employer, Energy Systems, Inc.
In Erickson v. U.S. Environmental Protection Agency, ARB Nos. 04-024, 04-025, ALJ Nos. 2003-CAA-11 and 19, 2004-CAA-1 (ARB Oct. 31, 2006),
PDF |
HTM
the Complainant named EPA�s Office of Inspector General (IG) and certain supervisors as Respondents. The ARB affirmed the ALJ's dismissal of the IG as a Respondent, observing that in Erickson v. EPA, ARB No. 03-002, ALJ No. 1999-CAA-2, et al. (ARB May 31, 2006) (ARB Erickson I), pending on appeal, Erickson v. EPA, No. 06-14120-E (11th Cir.), it had held that the IG is an integral part of EPA and not properly a separate party Respondent to environmental whistleblower complaints against EPA. The ARB also affirmed the ALJ's dismissal of individual supervisors as Respondents, holding that "they are not proper parties either because supervisors are not 'employers' within the meaning of the environmental whistleblower provisions." USDOL/OALJ Reporter at n.5 (citation omitted).
[Nuclear and Environmental Whistleblower Digest XIV B 2]
EMPLOYER-EMPLOYEE RELATIONSHIP; INDIVIDUAL LIABILITY OF MANAGER
In Slavin v. Aigner, 2005-CAA-11 (ALJ Jan. 19, 2006), the Complainant applied for a management faculty position with the University of California at Santa Barbara Bren School of Environmental Science and Management, and alleged that he was not selected for the position because of protected activity. The University had earlier been dismissed as a Respondent based on state sovereign immunity, and the instant decision related to the liability of individual who was the Dean of the School at the time that the Complainant applied for the job. Reviewing the applicable legal authority under the environmental whistleblower statutes, the ALJ concluded that "a complainant must seek relief from an employer." Although the Dean may have been the senior leader and manager for the school and ultimately responsible for the decision not to hire the Complainant, the employer in this case would have been the University and not the Dean. Accordingly, the ALJ dismissed the complaint.
[Nuclear and Environmental Whistleblower Digest XIV B 2]
EMPLOYER-EMPLOYEE RELATIONSHIP; SHIPPING COMPANY OWNED BY UNION'S PENSION FUND; LACK OF SHOWING OF CONTROL OVER EMPLOYMENT
In Culligan v. American Heavy Lifting Shipping Co., ARB No. 03-046, ALJ Nos. 2000-CAA-20, 2001-CAA-9 and 11 (ARB June 30, 2004), the Complainant alleged that the masters, mates, and pilots union and the International Longshoreman's Association retaliated against him by expelling him from the union because of his case against a shipping company which was owned by the pension funds of the two union organizations. The ARB, however, found that there was no evidence that the union controlled the Complainant's employment or had any connection to his firing by the shipping company.
[Nuclear and Environmental Whistleblower Digest XIV B 2]
INDIVIDUALS AS RESPONDENTS; LACK OF EMPLOYMENT RELATIONSHIP
In Powers v. Tennessee Dept. of Environmental & Conservation, ARB Nos. 03-061 and 03-125, ALJ Nos. 2003-CAA-8 and 16 (ARB June 30, 2005), the ARB affirmed the ALJ's holding that it was too late for the Complainant to amend her complaint to add state officials and a private company as respondents almost five months after she filed her complaint.
In a second complaint the ARB affirmed the ALJ's denial of amendment of the complaint to add two state attorneys as respondents (albeit not for the reasons proffered by the ALJ), on the ground that merely alleging that the attorneys were "key participants" in the Complainant's alleged blacklisting and firing falls short of the legal requirement that the Complainant have an employment relationship with those individuals as respondent employers � i.e., since neither was her employer, she could not prevail against them as a matter of law.
XIV B 2 Need for employer-employee
relationship
InMitchell v. EG & G (Idaho), 87-ERA-22 (Sec'y
July 22, 1993), the ALJ scheduled a hearing "strictly
limited to the single issue of timeliness."
(emphasis in original) After the hearing the ALJ issued a
Recommended Decision & Order in which he held, inter alia,
that one Respondent, TVA, was entitled to dismissal as a matter
of law because Complainant "voluntarily amplified the range
and exceeded the scope for the Hearing was designed and [was]
bound by . . . his evidence firmly establish[ing] that [TVA] was
not his employer" thereby precluding ERA coverage. The
Secretary held that an examination of the record did not support
the ALJ's conclusion that Complainant waived the limited scope of
the hearing, but rather indicated that evidence regarding
employment by TVA was offered solely as background for an
understanding of the timeliness issue. He also noted, but did
not decide, that the ERA does not "ineluctably" require
an employer-employee relationship.
[Nuclear and Environmental Whistleblower Digest XIV B 2]
LIABILITY OF INDIVIDUALS; MUST BE EMPLOYMENT RELATIONSHIP
In Fox v. U.S. Environmental Protection Agency, 2004-CAA-4 (ALJ Mar. 17, 2004), the ALJ dismissed eight named individuals as Respondents based on Bath v. United States Nuclear Regulatory Commission, ARB No. 02-041, ALJ No. 2001-ERA-41 (ARB Sept. 29, 2003) and Lewis v. Synagro Technologies, Inc., ARB No. 02-072, ALJ No. 2002-CAA-12 (ARB Feb. 27, 2004), where the Complainant failed to establish in response to the ALJ's order to show cause "that anyone other than her actual employer controlled the terms, conditions and privileges of her employment." The ALJ noted that "[i]n fact, only her employer can provide to Complainant the affirmative relief she seeks ...."
[Nuclear & Environmental Whistleblower Digest XIV B 2]
EMPLOYER; TO BE A COVERED EMPLOYER, A SHOWING OF CONTROL OVER THE EMPLOYMENT IS REQUIRED
In Lewis v. Synagro Technologies, Inc., ARB No. 02 072, ALJ Nos. 2002 CAA 12 and 14 (ARB Feb. 27, 2004), the Complainant was an EPA employee working at a state university under an Intergovernmental Personnel Act agreement, who also engaged in outside employment as an expert witness and writer regarding the adverse effects of land applied biosolids or sludge sewage. The Complainant participated as an expert witness for the plaintiffs in a private tort suit filed against one of the Respondents, Synagro, a company whose business includes land application of biosolids as fertilizer. The other Respondent was a non profit organization, whose mission included providing educational information to the public regarding the use of biosolids. The Complainant alleged that Synagro's CEO contacted the EPA and falsely accused the Complainant of receiving payment for his expert opinion testimony in the private tort suit, and that another Synagro employee falsely represented to the person who wanted to engage the Complainant as an expert witness that Complainant had an article refused by a professional journal and had improperly received payment for his expert testimony. The Complainant also alleged that the non profit organization contacted EPA and falsely alleged that the Complainant received payment for the expert opinion, that his research was flawed and that that he had engaged in research misconduct. The issue on appeal was whether the Respondents and named officers of the Respondents are covered employers under the applicable whistleblower laws.
The SDWA, CAA and TSCA provide that no "employer" may discharge or discriminate against an employee. The ARB held that because the Complainant had not shown that the Respondents control or controlled the Complainant's employment, they were not covered employers. The Complainant argued on appeal that there is liability because the Respondents interfered with his employment. The ARB, however, found that "control over employment is essential to be an 'employer.'" In regard to individuals named as Respondents, the ARB held that they were not employers for the same "control" reason, as well as prior ARB decisions holding that an employee is not an "employer" under the comparable whistleblower protection provision of the ERA.
The FWPCA, SWDA and CERCLA provide that no "person" may fire or discriminate against an employee, or "cause" such. The ARB held, however, that:
An examination of the whistleblower provisions of the FWPCA, SWDA and CERCLA in their entirety, their legislative history, and the Secretary's implementing regulations, establishes that the "person" referred to in the pertinent sections of these statutes must have an employment relationship with the complainant or act in the capacity of an employer.
The ARB also held that the Respondents were not liable under the FWPCA, SWDA and CERCLA because the Complainant failed to show that they controlled the terms, conditions, or privileges of his employment.
[Nuclear & Environmental Whistleblower Digest XIV B 2 ]
EMPLOYER EMPLOYEE; OWNER OF CONTRACT FIRM NOT A COVERED "EMPLOYEE"
In Demski v. Indiana Michigan Power Co., ARB No. 02 084, ALJ No. 2001 ERA 36 (ARB Apr. 9, 2004), the Complainant was the president and sole shareholder of a company that supplied contract labor for power generating plants, and had several contracts to supply workers for Respondent's Cook nuclear plant. Under the express terms of the contracts, the Complainant's company was defined as not an agent or employee of the Respondent. The Complainant alleged that the Respondent unlawfully terminated the contracts because she had reported safety concerns to Respondent's management and the NRC. The ARB found that two of the essential elements of a whistleblower claim under the ERA are that the complainant must be an employee and the respondent must be an employer. The ARB found that the undisputed facts of the case established that the Complainant was a contractor, and an employer, and not an employee of the Respondent or her company, and therefore she was not entitled to relief under the whistleblower provision of the ERA.
[Nuclear & Environmental Whistleblower Digest XIV B 2]
INDIVIDUAL LIABILITY OF SUPERVISORY EMPLOYEES; EMPLOYEES ARE NOT EMPLOYERS WITHIN MEANING OF ERA WHISTLEBLOWER PROVISION
In Bath v. U.S. Nuclear Regulatory Commission, ARB No. 02 041, ALJ No. 2001 ERA 41 (ARB Sept. 29, 2003), the ARB applied its recent decision in Pastor v. Dept. of Veterans Affairs, ARB No. 99 071, ALJ No. 1999 ERA 11 (ARB May 30, 2003) holding that a claim for money damages against a Federal agency based on 42 U.S.C. § 5851 (the whistleblower provision of the ERA) is barred by sovereign immunity. In Bath, Complainant had argued that section 5851's legislative history showed that individual Congressmen assumed that NRC contract employees would be protected. The ARB observed, however, that Pastor had held that legislative history is not a valid basis for inferring legislative intent to waive sovereign immunity, departing from earlier authority such as Teles v. DOE, 1994 ERA 22 (Sec'y Aug. 7, 1995). The Complainant in Bath argued that Pastor still permitted suit against individual NRC employees. The ARB agreed that NRC's sovereign immunity does not bar claims against NRC employees in their individual capacities; however, the ARB found that the complaint against individual employees must be dismissed. The ARB wrote:
The sine qua non of a § 5851 complaint is the employer employee relationship. "No employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee" complained about covered safety hazards. 42 U.S.C.A. § 5851(a)(1). "Any employer is deemed to have violated the particular federal law and the regulations in this part if such employer intimidates, threatens, restrains, coerces, blacklists, discharges, or in any other manner discriminates against any employee because the employee has" engaged in protected activity. 29 C.F.R. § 24.2(b) (2002). "Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of subsection (a) [which prohibits discrimination by an employer] may . . . file . . . a complaint. . . ." 42 U.S.C.A. § 5851(b)(1). See Billings v. OFCCP, No. 91 ERA 35, slip op. at 2 (Sec'y Sept. 24, 1991) ("It is well established that a necessary element of a valid ERA claim under Section 5851 is that the party charged with discrimination be an employer subject to the Act"); Varnadore, slip op. at 58 ("[P]ersons who are not >employers' within the meaning given that word in the ERA may not be held liable for whistleblower violations").
Even if, as Bath alleges, NRC employees directed him in his work and influenced Robotech's decision to fire him, that would not make them employers in their own right. Employees are not employers within the meaning of § 5851 even if they are supervisory employees. Kesterson v. Y 12 Nuclear Weapons Plant, ALJ No. 95 CAA 0012, slip op. at 10 (Aug. 15, 1996), affirmed, ARB No. 96 173 (ARB Apr. 8, 1997) (dismissing § 5851 complaint against employees of employer because the complainant "failed to set forth any allegations that, even if taken as true and construed in the light most favorable to him, establish an employment relationship with these individuals rather than a mere supervisory relationship"). Bath's reliance on Robotech's contract with the NRC is misplaced. The contract cannot expand the scope of the statute.
[Nuclear & Environmental Whistleblower Digest XIV B 2] INDIVIDUAL LIABILITY OF GOVERNMENT OFFICIALS; DIFFERING ANALYSIS FROM DISSENT IN WILLIAMS
In Gass v. U.S. Dept. of Energy, 2002 CAA 2 (ALJ Nov. 20, 2002), Complainant included several Department of Energy employees as named respondents. The ALJ, in a recommended decision, analyzed whether individuals can be held liable under the CAA, SDWA and SWDA. The ALJ concluded that the CAA and SDWA were governed by the Secretary's decision in Stephenson v. National Aeronautics & Space Administration, 1994 TSC 5 (Sec'y July 3, 1995), in which the Secretary observed that while several paragraphs in the CAA's whistleblower provisions reference "person," the "substantive prohibition" contained in 7622(a) reference "employer." The Secretary found that "the plain language of these employee protection provisions suggests that they were intended to apply to persons who are employers . . . Any other construction would require a clearer statement of intent . . ." As a result, the Secretary concluded that only employers are subject to the employee protection provisions of the CAA.
The ALJ, however, found the question of individual liability more complex under the SWDA, in part because that statute uses the term "person" rather than "employer" in the prohibition section. The ALJ observed that a dissent in Williams v. Lockheed Martin Energy Systems, Inc., 1995 CAA 10 (ARB Jan. 31, 2001), had concluded that the SWDA provides for individual liability, largely due to the use of he term "person" in substantive prohibition section. The ALJ recognizing that the dissent had logical force, nonetheless concluded that Federal government employees are not subject to personal liability under the SWDA once the entire SWDA employee protection section is considered (noting that analyzing the entire provision was the approach of the Secretary in Stephenson).
The ALJ observed that the remedies provided for in the SWDA show an intention to have employers rather than individuals who are not employers to make whole a wronged employee. The ALJ also observed that the Secretary's regulations at 29 C.F.R. § 24.2(a) use the term "employer" and that the regulations do not set out any such prohibition for an individual or person who is not an employer. The ALJ also observed that if a violation of the SWDA whistleblower provision was established, it was reasonable to hold the employing agency responsible for the acts of its employees, whereas individual liability would produce respondents without the power to effect the remedies of re employment or reinstatement mandated by the SWDA.
[Nuclear & Environmental Digest XIV B 2]
"JOINT EMPLOYER"; CONTRACT THAT GIVES FEDERAL AGENCY AUTHORITY TO REGULATE WORKERS AT GOVERNMENT OWED FACILITY DOES NOT IMPOSE JOINT EMPLOYER STATUS PER SE; FOCUS IS ON WHETHER AGENCY ACTED IN CAPACITY OF EMPLOYER
In Williams v. Lockheed Martin Energy Systems, Inc., ARB No. 98-059, ALJ No. 1995-CAA-10 (ARB Jan. 31, 2001), the ARB affirmed the ALJ's dismissal under Fed. R. Civ. P. 12(b)(1) where Respondent Department of Energy - which had a contract with Lockheed Martin Energy Systems (LMES) to operate U.S. government owned nuclear facilities at Oak Ridge, Tennessee -- presented affidavits and a contract in support of its motion to dismiss on the theory that it did not have an employer-employee relationship with Complainant, and where Complainant failed to support his position with countervailing documents or affidavits. One member dissented on this issue, concluding that the ALJ had misapplied the law on what constitutes a common law employee to the question of whether DOE had been properly named as a respondent.
The majority of the Board, however, strongly disagreed with the dissenter. Citing the Board decision in Stephenson v. NASA, ARB Case No. 98-025, ALJ Case No. 1994-TSC-5 (July 18, 2000), the Board emphasized that "in a hierarchical employment context, an employer that acts in the capacity of employer with regard to a particular employee may be subject to liability under the environmental whistleblower provisions, notwithstanding the fact that employer does not directly compensate or immediately supervise the employee . . . ." The majority found that even though a federal agency may retain some authority to exercise control over a contractor's work product and to regulate the conduct of workers at government owned facilities, that fact does not mean per se that the federal agency becomes a joint employer with its contractors. The majority wrote that "[t]he question whether a federal agency actually has "acted" in the capacity of an "employer" with regard to a contractor's employees must be an individualized, fact-specific inquiry addressed on a case-by-case basis; liability (or even potential liability) cannot be imputed merely from the language of procurement contracts."
[Nuclear & Environmental Digest XIV B 2]
COVERED EMPLOYER NEED NOT MEET COMMON LAW EMPLOYMENT TEST
In Stephenson v. NASA, ARB No. 98-025, ALJ No. 1994-TSC-5 (ARB
July 18, 2000), the ARB held that "an employer who is not employee's common law
employer may nevertheless be held liable for retaliation under the CAA employee protection
provision" depending on the specific facts of a case. The ARB noted that it rendered this
holding in two prior appeals in the case, and that the ALJ's decision to revisit the construction of
"employer" and "employee" under the CAA was error in that it violated
the law of the case on this point.
[Nuclear & Environmental Digest XIV B 2]
EMPLOYEE; COMMON LAW AGENCY
In Plumlee v. Dow Chemical
Co., 1998-TSC-8 and 9 (ALJ Feb. 25, 1999), the ALJ recommended dismissal on
summary decision of one Respondent -- a contract delivery system that supplied contract drivers
to businesses -- where Complainant failed to present sufficient evidence of employee/employer
relationship under the common law agency doctrine stated in Nationwide Mutual Ins. Co. v.
Darden, 112 S.Ct. 1344 (1992).
[Nuclear & Environmental Digest XIV B 2]
JOINT EMPLOYER; INSUFFICIENT TO MERELY STATE THAT A COMPANY BE
INVESTIGATED AS A "POSSIBLE JOINT EMPLOYER"; RATHER, MUST
ALLEGE AN EMPLOYMENT RELATIONSHIP EXISTED
Where Complainant merely prayed in his complaint that a named co-Respondent, which
was not Complainant's employer, be investigated as "possible joint employer", the
ALJ granted the co-Respondent's motion for summary decision, noting that Complainant must
allege a set of facts which, if proven, could support his claim of entitlement to relief, and that
Complainant had not alleged the essential element of an employment relationship between
himself and the co-Respondent. Rockefeller v. U.S.
Dept. of Energy,1998-CAA-10 and 11 (ALJ Sept. 28, 1998).
[N/E Digest XIV B 2]
PRINCIPAL OF ANOTHER COMPANY
In United States v. Regan, 1998 WL 341815 (N.D. Ill. June 12,
1998)(unpublished), the plaintiff claimed that he was entitled to bring a whistleblower claim
under 42 U.S.C. § 5851 based on the allegation that the defendant drove the plaintiff out of
the nuclear industry. The court dismissed this claim because, inter alia, section 5851
limits protection to employees, and plaintiff did not claim that he was an employee of the
plaintiff. The decision indicates that the plaintiff was a principal in a company that had a
tax-related dispute with the defendant.
[N/E Digest XIV B 2]
EMPLOYER/EMPLOYEE RELATIONSHIP
In Stephenson v. National Aeronautics &
Space Administration, 94-TSC-5 (ARB Apr. 7, 1997), Respondent
sought
reconsideration of the Board's ruling that "Respondent ... could be held
liable for retaliating
against 'any employee' if it had acted as an employer with regard to the
employee, e.g.,
by establishing, modifying or interfering with the employee's compensation,
terms, conditions or
privileges of employment." See Stephenson v. National Aeronautics &
Space
Adminstration, 94-TSC-5 (ARB Feb. 13, 1997)(order of remand).
Respondent pointed to language in Varnadore v. Oak Ridge National
Laboratory
(Varnadore III), 95-ERA-1 (ARB June 14, 1996), where the Board stated
that no basis
existed for concluding that the complainant was employed by the DOE and that
he had not even
alleged that he was the employee of an individual respondent.
Varnadore, 95-ERA-1,
slip op. at 59-60. In Varnadore III, the Board had also stated that
"an employment
relationship between complainant and respondent is an essential element of any
[whistleblower]
claim . . . ." Id. at 60.
The Board held that
this language should not be read to mean that only the direct or
immediate
employer of a discriminatee is subject to suit under the whistleblower
provision. A
complaint requires an allegation of employment discrimination,
i.e., that an
employer's action adversely affected a complainant's employment,
i.e., the
compensation, terms, conditions or privileges of employment. In this
sense, an
"employment relationship" is essential to the complaint. The
employment
relationship may exist between the complainant and the immediate
employer. In
appropriate circumstances, however, protection may extend beyond the
immediate
employer.
Slip op. at 2. The Board distinguished Varnadore III, from the instant
case and
Hill v. TVA and Ottney v. TVA, 87-ERA-23/24 (Sec'y May 24, 1989), on
the ground
that
in Varnadore III the complainant failed to articulate any association
between his
immediate employer and the other respondents that resulted in adverse
employment action. In
the present case, Complainant alleged that Respondent ordered the immediate
employer to take
certain specified adverse actions against Complainant. In Hill &
Ottney, the respondent
had canceled a contract with the immediate employer in retaliation for
disclosure of safety
problems, thereby disemploying the complainants.
The Board noted that the focus of Robinson v. Martin Marietta Services,
Inc., 94-TSC-7
(ARB Sept. 23, 1996) (applying the "sufficient control" analysis of
Reid
v. Methodist Medical Center of Oak Ridge, 93-CAA-4 (Sec'y Apr. 3, 1995),
aff'd,
No. 95-3648 (6th Cir. Dec. 20, 1996)), was whether the respondent was a
co-employer. The
Board stated that the difference in analysis between Robinson and the
instant case was
based on the issues framed by the complainant's allegations, and that the
underlying question in
both instances is the same: "did [Respondent] act as an employer
with regard to
the complainants, whether by exercising control over production of the work
product or by
establishing, modifying or interfering with the terms, conditions or
privileges of
employment?" Slip op. at 4.
[N/E Digest XIV B 2]
EMPLOYER-EMPLOYEE RELATIONSHIP; REID AND DARDEN
TESTS USED TO DETERMINE STATUS OF COMPLAINANT AS AN EMPLOYEE, NOT
EMPLOYER-EMPLOYEE RELATIONSHIP
In Stephenson v. NASA,
94-TSC-5 (ARB Feb. 13, 1997), Complainant
alleged that NASA ordered her immediate employer, a government contractor, to
prohibit her
from communicating with NASA personnel, to bar her from the Johnson Space
Center and to
revoke her unescorted access clearance because she complained about astronauts
being exposed
within the space capsule to ethylene oxide and Freon.
The ALJ concluded that because Complainant had never been directly employed by
Respondent NASA, NASA was not an "employer" and Complainant was not
an
"employee" for purposes of the CAA whistleblower provision. The ALJ
applied the
standard adopted in Reid v. Methodist Medical Center of Oak Ridge,
93-CAA-4 (Sec'y
Apr. 3, 1995), aff'd, No. 95-3648 (6th Cir. Dec. 20, 1996), which in
turn applied the
common-law employment test articulated in Nationwide Mutual Ins. Co. v.
Darden, 112
S.Ct. 1344, 1348 (1992) and Community for Creative Non-Violence v.
Reid, 490 U.S.
730, 751-52 (1989).
The Board found that the ALJ's analysis was defective. Reid was based
on the
need to decide whether an independent professional contractor is an
"employee" for
purposes of a whistleblower provision. The instant question, however, is
whether Complainant
is protected under the CAA from retaliation by an entity, which although not
her direct or
immediate employer, is nonetheless a covered employer. SeeCoupar v. U.S. Dept. of Labor, No.
95-70400,
slip op. at 11 (9th Cir. Jan. 30, 1997).
The Board wrote:
...[I]n a hierarchical employment context, an employer that
acts in
the capacity of employer with regard to a particular employee may be
subject to liability
under the environmental whistleblower provisions, notwithstanding the
fact that that
employer does not directly compensate or immediately supervise the
employee. A parent
company or contracting agency acts in the capacity of an employer by
establishing,
modifying or otherwise interfering with an employee of a subordinate
company regarding
the employee's compensation, terms, conditions or privileges of
employment. For
example, the president of a parent company who hires, fires or
disciplines an employee of
one of its subsidiaries may be deemed an "employer" for
purposes of the
whistleblower provisions. A contracting agency which exercises similar
control over the
employees of its contractors or subcontractors may be a covered employer.
... The issue of
employment relationship necessarily depends on the "specific facts
and
circumstances" of the particular case, however.
Slip op. at 3-4 (citations omitted). Because the record was insufficient to
decide this issue,
the Board remanded the case for further development of the evidence on
coverage and liability.
DEFINITION OF EMPLOYER; OPPORTUNITY OF
COMPLAINANT FOR DISCOVERY; NON-EMPLOYER -- MUST BE
INTERFERENCE IN EMPLOYMENT
[N/E Digest XIV B 2 and 3]
In Freels v. Lockheed Martin Energy Systems, Inc.,
95-CAA-2, 94-ERA-6 (ARB Dec. 4, 1996), Respondent Department of
Energy filed a motion to be dismissed because it was not Complainant's
employer. Complainant's response to the motion was that it should first be
permitted full opportunity for discovery, citing Flor v. U.S. Dept. of
Energy, 93-TSC-1, slip op. at 9 (Sec'y Dec. 9, 1994). The Board found
that Flor, in which summary decision was found not appropriate
where the respondent had not answered certain discovery requests that could
possibly establish essential elements of the complainant's case, was not
controlling because in the instant case, Complainant would have personal
knowledge of evidence concerning the identity of her employer and could
have provided it in a sworn affidavit. Complainant had not argued that the
outstanding discovery would produce any evidence that DOE was her
employer.
The Board distinguished the Secretary of Labor's decision in Hill &
Ottney v. Tennessee Valley Authority, 87-ERA-23 and 24 (Sec'y May 24,
1989), in which it was held that the ERA prohibits employers from
discriminating against any employee, not only their own employees. The
Board focused on the fact that in Hill & Ottney, Respondent had
allegedly interfered with Complainant's employment. In the instant case,
there
was no allegation that DOE had interfered in Respondent Lockheed Martin's
contract or caused Lockheed Martin to take any adverse action against
Complainant.
Since no material issue of fact was presented, DOE was entitled to
summary decision because it was not Complainant's employer, and
Complainant did not allege that DOE interfered in her employment.
EMPLOYER; JOINT EMPLOYER
[N/E Digest XIV B 2]
In Robinson v. Martin Marietta Services,
Inc., 94-TSC-7 (ARB Sept. 23, 1996), NASA was properly dismissed
because it
was not Complainant's employer under the Nationwide Mutual Ins. Co. v.
Darden, 112
S.Ct. 1344 (1992) test. Another company evaluated Complainant's work,
assigned him
additional work, provided employee benefits, and paid him. Complainant
contended that NASA
was a joint employer because an undergraduate co-op student purportedly
supervised him on a
project. The Board found that the evidence did not establish that the co-op
student supervised
Complainant.
In a footnote, the Board observed that where a company interferes with its
contract with a
separate company such that it caused the complainant's employment to be
terminated, the
interfering company fits within the ERA's definition of "employer."
Slip op. at 6
n.4, citing Hill & Ottney v. Tennessee Valley Authority, 87-ERA-23 and
24 (Sec'y May
24, 1989). In the instant case, however, there was no allegation of
interference.
EMPLOYMENT RELATIONSHIP WHERE NO BLACKLISTING; ABSENCE OF
ALLEGATION OF ADVERSE EFFECT ON COMPENSATION, TERMS, CONDITIONS
AND PRIVILEGES OF EMPLOYMENT
[N/E Digest XIV B 2]
In Saporito v. Florida Power & Light
Co., 94-ERA-35 (ARB July 19, 1996), Complainant filed a complaint
against his
former employer alleging that it retaliated against him by making negative
statements about him
in a filing with the NRC. The Board noted that a former employer could be
liable for
blacklisting pursuant to 29 C.F.R. § 24.2(b), but held that this was not
a blacklisting case
because all that was alleged was that Complainant filed a petition with the
NRC regarding his
former employer, that the NRC in the normal course of business requested that
employer's views
on the petition, and that in response to the NRC request, the employer
provided its views.
Although the former employer made unflattering statements about Complainant in
its NRC
response, the whistleblower complaint was dismissed by summary decision where
complainant
did not allege that these statements adversely affected his compensation,
terms, conditions, and
privileges of employment.
Complainant also alleged that a law firm that represents the employer
retaliated against
Complainant by contacting an attorney for another employer regarding
Complainant. The Board
likewise held that the law firm was not an employer within the meaning of the
ERA whistleblower provision.
[N/E DIGEST XIV B 3]
"MERE" PARENT CORPORATION; TEST FOR DETERMINING
WHETHER PARENT CORPORATION SHOULD BE DISMISSED AS A RESPONDENT
In Ishmael v. Calibur Systems, Inc., 96-SWD-2 (ALJ June 23,
1997),
the ALJ considered what test should be applied to determine when a parent
company is
"merely a parent" and should be dismissed as a respondent.
SeeVarnadore v. Oak Ridge Nat'l Lab., 92-CAA-2 and 5, 93-CAA-1, 94-CAA- 2
and 3
(ARB June 14, 1996)(finding that a mere parent company that did not employ the
complainant
should be dismissed as a respondent, but not articulating a test for when a
company is a mere
parent).
The ALJ applied the test found in Baker v. Stuart Broadcasting Co., 560
F.2d
389, 391 (8th Cir. 1997), a Title VII case in which the courts held that there
must be sufficient
indicia of an interrelationship to justify a belief by the aggrieved employee
that the affiliated
corporation is jointly responsible for the acts of the immediate employer.
The court applied a
four-part test: degree of (1) interrelated operations, (2) common management,
(3) centralized
control of labor relations, and (4) common ownership).
Applying this test, the ALJ found that the two corporations in the present
case were alter
egos, and declined to dismiss the parent corporation.
A necessary element of a valid ERA claim under the employee
protection provision is that the party charged with
discrimination is an employer subject to the Act. Mackowiak
v. University Nuclear Systems, Inc., 735 F.2d 1159, 1162 (9th
Cir. 1984); DeFord v. Secretary of Labor, 700 F.2d 281,
286 (6th Cir. 1983). Employers under the ERA are licensees, or
applicants for a license, of the Nuclear Regulatory Commission,
and their contractors and subcontractors. 42 U.S.C. §
5851(a); Billings v. OWCP, 91-ERA-35 (Sec'y Sept. 24,
1991), slip op. at 2; Wensil v. B.F. Shaw Co., 86-ERA-15,
87-ERA-12, 45, 46, 88-ERA-34 (Sec'y Mar. 29, 1990), slip op. at
11, aff'd sub nom. Adams v. Dole, 927 F.2d 771, 776 (4th
Cir. 1991), cert. denied, 116 L. Ed. 2d 90 (1991).
Thus, in Miriello v. Carolina Power and Light Co.,
87-ERA-17 (Sec'y Jan. 23, 1992) (decision and order to show
cause; final decision and order Mar. 20, 1992), where a named
respondent -- the Charleston Naval Shipyard -- was a Department
of Defense utilization facility, exempt from the Act's licensing
requirement, see 42 U.S.C. §§ 2140, 2121 (1988), the
complaint against that respondent lacked subject matter
jurisdiction, and dismissal was mandatory. Fed. R. Civ. P.
12(h)(3); Sullivan v. Afftrex, Ltd., 91-ERA-15 (Sec'y Aug.
30, 1991), slip op. at 2 (order to show cause; final order of
dismissal Oct. 30, 1991).
Lekvold v. Westinghouse Hanford Co., 1994 U.S. App.
Lexis 13173 (9th Cir. May 19, 1994)
Prior to 1992, there were no federal remedies for
whistleblowing employees of DOE-owned, contractor-operated
nuclear facilities. In 1992, the ERA was amended to extend
whistleblower protection to DOE contractor employees. However,
this protection applied only prospectively to claims filed on or
after the enactment date of the amendments. Therefore, claims
filed by DOE contractor employees before that date are not
covered by the ERA.
SOVEREIGN IMMUNITY; DEPARTMENT OF ENERGY; ENERGY
REORGANIZATION ACT
[N/E Digest XIV B 4 b and XX E]
The Department of Energy is not a proper party defendant in
an ERA whistleblower case because the United States has not
waived sovereign immunity under the ERA. Varnadore v. Oak
Ridge National Laboratory, 92-CAA-2 and 5, 93-CAA-1 and
94-CAA-2 and 3 (ARB June 14, 1996), citing Teles v. U.S. Dept.
of Energy, 94-ERA-2 (Sec'y Aug. 7, 1995).
XIV B 4 b PARTIES; LIABILITY OF UNINCORPORATED DIVISIONS OR
DEPARTMENTS, PARENT COMPANIES; INDIVIDUAL EMPLOYEES
In Varnadore v. Oak Ridge National Laboratory,
95-ERA-1 (ALJ Sept. 20, 1995), the ALJ recommended dismissal of
the following parties:
an unincorporated division of the Complainant's
employer;
unincorporated departments of the Complainant's
employer;
parent companies of the Complainant's employer;
an individual employed by the Complainant's employer;
and
a consultant (the former Director of the Office of
Administrative Appeals) for the Complainant's employer.
The ALJ indicated that any discriminatory acts committed by
these organizations or individuals would be attributed to the
Complainant's employer, which is the entity liable for any
violations. The complaint also named the Department of Energy.
The ALJ similarly recommended dismissal of a satellite office of
DOE and of the Secretary of Energy.
XIV B 4 b DOE facilities
In Adams v. United States Dep't of Energy, 87-ERA-
12 (ALJ Mar. 19, 1987), aff'd sub. nom, Wensil v. B.F. Shaw
Co., 86-ERA-15, 87-ERA-12, 45, 46, 88-ERA-34 (Sec'y Mar. 29,
1990), aff'd sub nom. Adams v. Dole, 927 F.2d 771 (4th
Cir. 1991), cert. denied, 116 L. Ed. 2d 90 (1991), the
administrative law judge found that the Department of Labor does
not have jurisdiction to decide a whistleblower complaint brought
under ERA section 210, 42 U.S.C. § 5821, where the employers
where contractors or subcontractors of the Department of Energy
and were not required to apply for or receive a license from the
Nuclear Regulatory Commission. The Secretary adopted much of
Judge Guill's analysis in Wensil v. B.F. Shaw Co., 86-ERA-
15, 87-ERA-12, 45, 46, 88-ERA-34 (Sec'y Mar. 29, 1990), slip op.
at 11 n. 5, aff'd sub nom. Adams v. Dole, 927 F.2d 771
(4th Cir. 1991), cert. denied, 116 L. Ed. 2d 90 (1991),
but stated that she did not "feel constrained to defer to
the views of DOE or the NRC in this area because section 210
designates the Secretary of Labor as the official responsible for
the administration and enforcement of this section of the
ERA."
XIV B 4 b DOE facilities
The whistleblower provision of the Energy Reorganization Act of
1974, § 210, as amended, 42 U.S.C. § 5851, does not
protect employees of contractors operating nuclear facilities
owned by the Department of Energy, but only employees of
licensees of the Nuclear Regulatory Commission and their
contractors. Adams v. Dole, 927 F.2d 771 (4th Cir.
1991), cert. denied, 116 L. Ed. 2d 90 (1991).
[Editor's note: The statutory language interpreted in
Adams was substantially modified by the Comprehensive
Energy Policy Act [of 1992], § 2901.]
XIV B 4 b DOE facilities
In Sullivan v. Afftrex, Ltd., 91-ERA-15 (ALJ May 7,
1991), aff'd (Sec'y Oct.30, 1991), the ALJ recommended
that the complaint be dismissed for lack of subject matter
jurisdiction based upon the decisions of Adams v. Dole,
927 F.2d 771 (4th Cir. 1991), cert. denied, 60 U.S.L.W.
3260 (U.S. Oct. 7, 1991) (No. 90-8210), and Wensil v. B.F.
Shaw Company, 86-ERA-15 (Sec'y Mar. 29, 1990). In
Sullivan, the respondent was a subcontractor at a
government owned facility operated under the administration of
the Department of Energy. The cited decisions indicated that
section 510 of the ERA does not cover DOE contractors.
XIV B 4 b DOE facilities
In Wensil v. B.F. Shaw Co., 86-ERA-15, 87-ERA-12,
45, 46, 88-ERA-34 (Sec'y Mar. 29, 1990), aff'd sub nom., Adams
v. Dole, 927 F.2d 771 (4th Cir. 1991), cert. denied,
116 L. Ed. 2d 90 (1991), the Secretary found that the employee
protection provision of the Energy Reorganization Act of 1974, as
amended (ERA), 42 U.S.C. § 5851 (1982), does not cover
employees of Department of Energy (DOE) contractors, which
operate facilities that are owned by DOE and are not licensed by
the Nuclear Regulatory Commission (NRC). Section 5851 covers
only employees of NRC licensees, license applicants, and their
contractors and subcontractors.
The following was extracted (some of it paraphrased) from the
Secretary's decision:
Statutory background
The Atomic Energy Act of 1954 established the Atomic Energy
Commission (AEC) to regulate the development, use, and control of
atomic energy. Pub. L. No. 83-703, 68 Stat. 919 (codified as
amended at 42 U.S.C. §§ 2011-2296 (1982)). Facilities
involved in the production of materials for nuclear weapons were
to be owned by the AEC as agent of, and on behalf of, the United
States. 42 U.S.C. § 2061. Nuclear facilities engaged in
industrial or commercial activities were licensed by the AEC.
Pub. L. No. 83-703, § 103, 68 Stat. 919, 936.
Congress reorganized the regulation of development, use and
control of atomic energy when it enacted the Energy
Reorganization Act of 1974 (ERA), Pub. L. No. 93-438, 88 Stat.
1233 (codified as amended at 42 U.S.C. §§ 5801-5891
(1982)). One purpose of the ERA was to separate the licensing
and related regulatory functions of the AEC from the other
functions of the AEC. 42 U.S.C. § 5801(c) (1982). Another
purpose of the ERA was "to advance the goals of restoring,
protecting, and advancing environmental quality, and to assure
public health and safety." 42 U.S.C. § 5801(a).
The ERA established two new, independent agencies, the Energy
Research and Development Administration (ERDA) and the Nuclear
Regulatory Commission (NRC). ERDA was given responsibility for
research and development programs on energy, including nuclear
energy. 42 U.S.C. § 5813. In addition, the AEC's
responsibilities for facilities producing materials for nuclear
weapons were transferred to ERDA. 42 U.S.C. § 5843. In
1977, the functions of ERDA were transferred to the Department of
Energy, including responsibility for nuclear weapons materials
production facilities. Pub. L. No. 95-91, 91 Stat. 565, 577
(codified as amended at 42 U.S.C. § 7151).
Wensil, slip op. at 4-5.
Discussion
Section 210 of the ERA provides, in pertinent part, that
"[n]o employer, including a Commission licensee, an
applicant for a Commission license, or a contractor or
subcontractor of a Commission licensee or applicant, may
discharge any employee or otherwise discriminate against any
employee with respect to his compensation, terms, conditions, or
privileges of employee because the employee [engaged in protected
activity]."
The question of DOE contractor coverage results from the
ambiguity of the "including" phrase: is it
illustrative or defining? Because of the ambiguity, the
Secretary looked to the legislative history. Based on factors
such as indicators that the bill was related to NRC
appropriations and portion of the Act, DOE had in effect its own
whistleblower regulations, the meager legislative history refers
to NRC and NRC-type employees and there is no direct reference to
DOE or DOE/GOCO (Government owned/Contractor operated) employees,
and the types of protected activities fit NRC proceedings better
than DOE administrative process, the Secretary concluded that
Congress sought to legislate with reference only to the NRC.
Slip op. at 7-9.
[Editor's note one: The Fourth Circuit affirmed the Secretary
in Adams v. Dole, 927 F.2d 771, 774 (4th Cir. 1991),
cert. denied, 116 L. Ed. 2d 90 (1991). Much of the
analysis is similar to the Secretary's, although less emphasis is
placed on legislative history and more on statutory
interpretation and placement of the amendment in the structural
framework of the ERA. Most of the decision is technical
statutory construction, so a detailed, independent casenote has
not been written for that decision for the Digest.]
[Editor's note two: Congress has amended section 210 of the ERA.
See Comprehensive National Energy Policy Act, § 2901. The
amendment strikes the "including" phrase and inserts a
new paragraph defining covered employers. The new paragraph
includes the following:
(2) For purposes of this section, the term
"employer" includes-
* * *
(D) a contractor or subcontractor of the Department of
Energy that is indemnified by the Department under section
170 d. of the Atomic Energy Act of 1954 (42 U.S.C. 2210(d)),
but such term shall not include any contractor or
subcontractor covered by Executive Order No. 12344.
Representative Wyden indicated in the Conference Report that this
amendment was made in response to Bricker v. Rockwell Hanford
Operations, No. CY-90-3090-AAM, 1991 U.S. Dist. LEXIS 18965
(E.D. Wash. Sept. 17, 1991) (unpublished), in which it was held
that the plaintiff was not protected by the ERA because he was an
employee of a private DOE contractor. See 138 Cong. Rec.
H11376 (daily ed. Oct. 5, 1992) (statement of Rep. Wyden).
42 U.S.C. § 2210(d) involves DOE indemnification of
contractors and subcontractors who conduct activities that pose a
risk to public and are not subject to other financial protections
under the Atomic Energy Act of 1954.
E.O. 12344 deals with the Naval Nuclear Propulsion Program.]
[Editor's note three: Effective April 2, 1992, DOE implemented
new whistleblower regulations providing complainants with the
opportunity for a hearing before DOE's Office of Hearings and
Appeals. See 10 C.F.R. Part 708 (57 Fed. Reg. 7533 (Mar.
3, 1992)). Previously, the DOE whistleblower complaint process
did not provide an opportunity for a hearing before an
independent adjudicator, and was perceived as a less effective
anti-discrimination remedy than the ERA, section 210 remedy.
See, e.g., Adams v. Dole, 927 F.2d 771, 774 (4th Cir.
1991), cert. denied, 116 L. Ed. 2d 90 (1991). These
regulations require a party to make an election between the DOE
procedure and other remedies.
The jurisdictional question is therefore complicated by the new
DOE regulations. Did Congress intend to supplant DOE
jurisdiction with the new Comprehensive Energy Policy Act -- or
is there now to be concurrent DOE/DOL jurisdiction? Will there
be forum shopping? Will there be deference to the proceedings of
another agency? Will proceedings be stayed pending the outcome
of a DOE proceeding?]
XIV B 4 b DOE contractor which must eventually
receive an NRC license
In Brown v. Holmes & Narver, Inc., 90-ERA-26
(ALJ June 28, 1990 (order denying motion for reconsideration of
denial of motion for summary judgment), the ALJ ruled that the
Respondent was not entitled to dismissal for lack of subject
matter jurisdiction. The ALJ concluded that the Secretary's
holding in Wensil v. B.F. Shaw, 86-ERA-15 (Sec'y Mar. 29,
1990), that contractors for the Department of Energy that are
owned by DOE and are not licensed by the NRC, are not covered
under the ERA whistleblower provision, did not apply to
contractors at sites which must eventually receive an NRC
license.
[Editor's note: The Complainant later took a voluntary dismissal
without prejudice, Brown v. Holmes & Narver,
Inc., 90-ERA-26 (ALJ June 28, 1990, which was affirmed by
the Secretary. Brown v. Holmes & Narver, Inc.,
90-ERA-26 (ALJ June 28, 1990). At the time of the writing of
this casenote, the Complainant has a pending motion to
"reinstate" his ERA complaint, it having been ruled
that he must exhaust his administrative remedies before pursuing
a state claim.]
XIV.B.4.b. DOE contracts
The Department of Labor does not have jurisdiction over a
complaint under the ERA, where the Respondent is a contractor to
the Department of Energy, and the complaint was filed prior to
October 24, 1992, the effective date of an amendment to the ERA
that expanded ERA whistleblower protection to include employees
of contractors or subconstractors of DOE. Crosier v.
Westinghouse Hanford Co., 92-CAA-3 (Sec'y Jan. 12, 1994).
XIV B 4 b DOE found not to be an
"employer" under the ERA
In Teles v. United States Dept. of Energy,
94-ERA-22 (ALJ Feb. 28, 1995), the ALJ
carefully reviewed relevant statutory language and legislative
history to find that the ERA's whistleblower
provision does not include the Department of Energy as an
"employer."
In McMahan v. California Water Quality Control Board, San
Diego Region, 90-WPC-1 (Sec'y July 16, 1993), the
Respondent contended that, as a state agency having
responsibility for enforcing laws relating to the abatement of
pollution, it was not subject to the whistleblower provision of
the Federal Water Pollution Control Act, § 1367, 33 U.S.C.
§ 1367. The Secretary agreed with the ALJ that this
Respondent fit into the Act's definition of a "person",
and was subject to the Act.
[Nuclear & Environmental Digest XIV B 4 c]
DEFINITION OF "EMPLOYER" UNDER THE ERA
In Jayco v. Ohio Environmental Protection Agency, 1999-CAA-5
(ALJ Oct. 2, 2000), the ALJ reviewed applicable case law and statutory and regulatory history to
conclude that the term "employer" under the ERA whistleblower provision is not
clearly restricted to licensees or contractors or subcontractors of licensees of the NRC. Rather,
the ALJ concluded that "Congress meant to cover the actions of all employers and
employees who would be involved in any phase of any 'proceeding' involving the investigation
and/or potential cleanup activity of any potential nuclear waste covered by the ERA and the
Atomic Energy Act of 1954." Slip op. at 63.
XIV B 4 c City as "person" subject to the
Act
In Patrick Paul Wilson, Case No. WPC-2, (Sec'y May
6, 1977), the Secretary agreed with the ALJ that the Respondent
city fit into the Act's definition of a "person" and
was subject to the Act.
The Secretary has determined, under the particular facts of
several cases, that the ERA may afford protection, absent a
direct employer-employee relationship. See Kamin v. Hunter
Corp., 89-ERA-11 (Sec'y Sept. 12, 1989), slip op. at 2-3
(Order to Show Cause) (applicants for employment); Hill v.
Tennessee Valley Authority, 87-ERA-23 (Sec'y May 24, 1989),
slip op. at 2, 5, and 10 (employees of a contractor); Cowan v.
Bechtel Construction, Inc., 87-ERA-29 (Sec'y Aug. 9. 1989),
slip op. at 2-4 (former employees).
In Doyle v. Bartlett Nuclear Services, 89-ERA-19
(Sec'y May 22, 1990), the Secretary considered whether an
employment agency can be an appropriate respondent under the
whistleblower provision of the ERA. The pertinent statutory
language in section 5851(a) states that "[n]o employer,
including a Commission licensee, an applicant for a Commission
licensee, or a contractor or subcontractor of a Commission
licensee or applicant . . ." may discriminate against any
employee. 42 U.S.C. § 5851(a). This language indicates
that if an employment agency is shown to be a contractor or
subcontractor of a former or prospective employer of the
complainant, and is alleged to have engaged in prohibited
discriminatory action, such an entity might, at least under some
circumstances, be an appropriate respondent under the ERA.
Because the complainant failed to allege against the employment
agency a prima facie case of retaliatory discharge, however, the
Secretary did not reach the question of under what circumstances
an employment agency may be an appropriate respondent.
XIV B 4 d Employment agency
The Secretary has determined, under the particular facts of
several cases, that the ERA may afford protection, absent a
direct employer-employee relationship. See Kamin v. Hunter
Corp., 89-ERA-11 (Sec'y Sept. 12, 1989), slip op. at 2-3
(Order to Show Cause) (applicants for employment); Hill v.
Tennessee Valley Authority, 87-ERA-23 (Sec'y May 24, 1989),
slip op. at 2, 5, and 10 (employees of a contractor); Cowan v.
Bechtel Construction, Inc., 87-ERA-29 (Sec'y Aug. 9. 1989),
slip op. at 2-4 (former employees).
In Doyle v. Bartlett Nuclear Services, 89-ERA-19
(Sec'y May 22, 1990), the Secretary considered whether an
employment agency can be an appropriate respondent under the
whistleblower provision of the ERA. The pertinent statutory
language in section 5851(a) states that "[n]o employer,
including a Commission licensee, an applicant for a Commission
licensee, or a contractor or subcontractor of a Commission
licensee or applicant . . ." may discriminate against any
employee. 42 U.S.C. § 5851(a). This language indicates
that if an employment agency is shown to be a contractor or
subcontractor of a former or prospective employer of the
complainant, and is alleged to have engaged in prohibited
discriminatory action, such an entity might, at least under some
circumstances, be an appropriate respondent under the ERA.
Because the complainant failed to allege against the employment
agency a prima facie case of retaliatory discharge, however, the
Secretary did not reach the question of under what circumstances
an employment agency may be an appropriate respondent.
In Conley v. McClellan Air Force Base, 84-WPC-1
(Sec'y Sept. 7, 1993), the Secretary determined that the Air
Force was not a "person" within the meaning of the Act.
The "omission of the United States from CWA definition of
the term person has to be seen as a pointed one when so many
other government entities are specified." Nonetheless, the
Secretary held that the CWA can apply to the Federal government
under the Federal Facilities provision of the FWPCA which
states:
Each department, agency, or instrumentality of the
executive, legislative, and judicial branches of the Federal
Government (1) having jurisdiction over any property or
facility, or (2)engaged in any activity resulting, or which
may result, in the discharge or runoff of pollutants, an
each officer, agent , or employee thereof in the performance
of his official duties, shall be subject to, and comply
with, all Federal, State, interstate, and local
requirements, administrative authority, and process and
sanctions respecting the control and abatement of water
pollution in the same manner, and to the same extent as any
nongovernmental entity including the payment of reasonable
service charges.
33 U.S.C. 1323(a). The phrase "any requirement"
indicates that the Federal Government is subject to all
requirements, even those which are not central to eliminate
pollution. The Secretary determined that the employee protection
prohibition is a requirement under the Act because it is a means
of enforcing the law.
[Nuclear and Environmental Whistleblower Digest XIV B 4 e] NAMING OF RESPONDENTS WITHIN FEDERAL AGENCY; OFFICE OF THE INSPECTOR GENERAL AND INDIVIDUAL SUPERVISORS ARE NOT PROPER SEPARATE PARTIES RESPONDENT
In Erickson v. U.S. Environmental Protection Agency, ARB Nos. 04-024, 04-025, ALJ Nos. 2003-CAA-11 and 19, 2004-CAA-1 (ARB Oct. 31, 2006),
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HTM
the Complainant named EPA�s Office of Inspector General (IG) and certain supervisors as Respondents. The ARB affirmed the ALJ's dismissal of the IG as a Respondent, observing that in Erickson v. EPA, ARB No. 03-002, ALJ No. 1999-CAA-2, et al. (ARB May 31, 2006) (ARB Erickson I), pending on appeal, Erickson v. EPA, No. 06-14120-E (11th Cir.), it had held that the IG is an integral part of EPA and not properly a separate party Respondent to environmental whistleblower complaints against EPA. The ARB also affirmed the ALJ's dismissal of individual supervisors as Respondents, holding that "they are not proper parties either because supervisors are not 'employers' within the meaning of the environmental whistleblower provisions." USDOL/OALJ Reporter at n.5 (citation omitted).
[Nuclear and Environmental Whistleblower Digest XIV B 4 E]
COVERED EMPLOYER OF EPA EMPLOYEE; OFFICE OF INSPECTOR GENERAL; DEPARTMENT OF THE ARMY
In Fox v. U.S. Environmental Protection Agency, 2004-CAA-4 and 10, 2005-CAA-6 (ALJ Mar. 1, 2005), recon. denied (ALJ Mar. 15, 2005), the EPA Office of Inspector General's filed a motion for summary decision dismissing it as a Respondent because it exercised no supervisory control over the Complainant and exercises considerable independence from EPA. The ALJ agreed, citing in support Greene v. U.S. Environmental Protection Agency, 2002-SWD-1, slip op. at 6 (ALJ Feb. 10, 2003), aff'd without reaching this issue (ARB June 14, 2005).
In contrast, the ALJ denied a similar motion from the Department of the Army. The Complainant was an EPA employee, but had been loaned to Georgia Tech University under an Intergovernmental Personnel Act assignment. The University had been awarded money from the Department of the Army to perform tasks under a Watershed Advisory Board; the Complainant was made the project manager. The ALJ found that there was sufficient evidence in conflict regarding whether the Army exercised control over the Complainant's employment so as to avoid summary decision on the issue of whether the Army was a "statutory employer."
[Nuclear and Environmental Whistleblower Digest XIV B 4 e]
COVERED EMPLOYERS; ENERGY POLICY ACT OF 2005; THE NRC; NRC CONTRACTORS AND SUBCONTRACTORS; DEPARTMENT OF ENERGY
On August 8, 2005, President Bush signed the Energy Policy Act of 2005. The Act amends the Energy Reorganization Act to extend liability under the ERA whistleblower provision to the Nuclear Regulatory Commission, contractors or subcontractors of the Commission, and the Department of Energy.
[Nuclear & Environmental Whistleblower Digest XIV B 4 e]
AGENCY ITSELF NOT OFFICES WITHIN AN AGENCY OR AGENCY SUPERVISORY PERSONNEL IS THE EMPLOYER OF AN AGENCY EMPLOYEE
In Greene v. Environmental Protection Agency, 2002 SWD 1 (ALJ Feb. 10, 2003), the Complainant was an ALJ with the EPA. Her complaint named, in addition to EPA itself, the EPA OALJ, EPA OIG,and the Chief ALJ of EPA. The ALJ presiding over the instant whistleblower complaint for DOL held that EPA was the Complainant's employer, but that EPA OALJ, being merely a component of EPA, was not Complainant's employer with the meaning of the environmental whistleblower laws. The ALJ observed that although EPA OIG has some operational independence from EPA, it nonetheless was not Complainant's employer and did not exercise supervisory control over her. Finally, the ALJ found that the EPA Chief ALJ was Complainant's supervisor not her employer.
[Nuclear & Environmental Digest XIV B 4 e]
FEDERAL AGENCIES AS "PERSONS" SUBJECT TO THE CAA AND THE
SWDA
Federal agencies, such as the Department of Defense, are "persons" subject to
the requirements of the Clean Air Act, see 42 U.S.C. § 7602(e), and the Solid
Waste Disposal Act (aka Resource Conservation and Recovery Act), 42 U.S.C. § 6961.
Jones v. EG & G Defense Materials,
Inc.,1995-CAA-3 (ARB Sept. 29,
1998).
[Editor's Note: The complaint in Jones also involved the TSCA, but the ARB did
not discuss whether a federal agency would be covered as a "person" under that Act.]
PARTIES; SUBDIVISION OF FEDERAL DEPARTMENT CANNOT BE HELD
INDEPENDENTLY LIABLE
[N/E Digest XIV B 4 e]
In Varnadore v. Oak Ridge National Laboratory,
92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996),
the Complainant named both the Department of Energy and DOE's Oak
Ridge Operations Office. The Oak Ridge Operations Office, being
merely a subdivision of DOE, is subsumed within DOE and cannot be
held independently liable. Slip op. at 55 n.37.
XIV B 4 e Sovereign immunity under the CAA, CWA, SWDA and
TSCA
With the exception of whistleblower complaints involving lead-
based paint, sovereign immunity has not been waived for purposes
of the TSCA employee protection provision. Thus, in
Stephenson v. National Aeronautics & Space
Administration, 94-TSC-5 (Sec'y July 1, 1995), NASA was
properly dismissed as a Respondent where the complaint did not
concern a lead-based paint hazard. A CAA complaint against NASA,
however, was cognizable. See Jenkins v. U.S. Environmental
Protection Agency, 92-CAA-6 (Sec'y May 18, 1994).
The Secretary noted that the United States Supreme Court had held
in Department of Energy v. Ohio, 112 S.Ct. 1627, 1633-1635
(1992), that neither the Clean Water Act nor the Solid Waste
Disposal Act contains a clear enough waiver of sovereign immunity
to subject the United States to civil penalties for past
violations.
XIV B 4 e Employer, definition of
A necessary element of a valid ERA claim under section 5851 is
that the party charged with discrimination is an employer subject
to the Act. Employers under the ERA are licensees, or applicants
for a license, of the Nuclear Regulatory Commission (NRC), and
their contractors and subcontractors. 42 U.S.C. § 5851(a);
Wensil v. B.B. Shaw Co., 86-ERA-15, 87-ERA-12, 45, 46, 88-
ERA-34 (Sec'y Mar. 29, 1990), aff'd sub nom. Adams v.
Dole, 927 F.2d 771, 776 (4th Cir. 1991), petition for
cert. filed sub nom. Adams v. Martin, No. 90-8210 (June 3,
1991). Thus where Complainant filed his complaint under the ERA
against a claim's examiner employed in the Office of Workers'
Compensation Programs, United States Department of Labor (because
of alleged denial of a workers' compensation claim that was based
on injuries alleged suffered while working at the Tennessee
Valley Authority) the complaint was properly dismissed for lack
of subject matter jurisdiction. See Fed. R. Civ. P.
12(h)(3). Billings v. Office of Workers' Comp.
Programs, 91-ERA-35 (Sec'y Sept. 24, 1991).
XIV B 4 e Federal employer; coverage
In Jenkins v. U.S. Environmental Protection Agency,
92-CAA-6 (Sec'y May 18, 1994), the Secretary found that CERCLA,
42 U.S.C. §§ 9610, 9620(a)(1), expressly subjects an
agency of the United States to the employee protection provision.
Specifically, the Secretary found EPA to be a "person"
within the meaning of 42 U.S.C. § 9610.
The Secretary found that the SDWA, 42 U.S.C. §§
300(f)(11) and (12), 300j-9(i), similarly subjected the EPA to
the SDWA employee protection provision. Although
"employer" is not defined, "person" includes
a Federal agency, which is "any department, agency, or
instrumentality of the United States." In addition, the
Federal facilities provision of the SDWA indicates that Congress
intended to waive governmental immunity. 42 U.S.C. § 300j-
6(a).
Similar provisions govern CAA employee protection case. See 42
U.S.C. §§ 7418(a), 7602(e), 7622(a) and (b).
The CWA and SWDA definitions of the term "person" do
not expressly include the United States Government. Nonetheless,
the Secretary held that the Federal facilities provision of those
statutes made the employee protection provisions applicable to
federal agencies.
In sum, the Secretary held:
[I]mmunity is waived under the CERCLA, SDWA, and CAA by
expressly including the United States within the definition
of the term "person." Moreover, the CERCLA
subjects each agency of the United States to its terms by
means of its Federal facilities provision. The Federal
facilities provisions of the SDWA, CAA, CWA, and SWDA, while
describing Federal agencies reasonably expected to be
affected, can be construed to waive immunity generally,
thereby providing Federal employees as well as nonFederal
employees with statutory whistleblower protection. Even if
this were not the case, the instant record establishes that
EPA exercises jurisdiction over affected properties and
facilities and engages in activities affecting regulated
substances and processes, thus constituting an agency
described in the provisions. I previously have held that
the CWA whistleblower provision is a "Federal
requirement" within the meaning of the CWA Federal
facilities provision, and I incorporate that analysis as
applying equally to the above statutes. Conley v.
McClellan Air Force Base (Conley), Case No., 84-WPC-1,
Sec. Dec., Sept. 7, 1993, slip op. at 2-9.
[Editor's note: Complainant also alleged a TSCA violation, but
the Secretary did not reach the issue of waiver under the TSCA
because the other statutes afforded Complainant a full measure of
relief.]
XIV B 4 e Coverage of Federal government
In Conley v. McClellan Air Force Base, 84-WPC-1
(Sec'y Sept. 7, 1993), the Air Force contended that the employee
protection provision of the Federal Water Pollution Control Act
or Clean Water Act (CWA), 33 U.S.C. § 1367 (1988), does not
apply to the Federal Government, and that Complainant's exclusive
remedy arises under the Civil Service Reform Act (CSRA), 5 U.S.C.
§ 2302(b)(8) (Supp. IV 1992).
Coverage of Federal Government
The United States Government is not a "person" for
purposes of section 1367 of the CWA. See 33 U.S.C. §
1362(5); United States Dept. of Energy v. Ohio, 503 U.S.
___, 112 S. Ct. 1627, 1633-1635, 118 L. E.d 2d 255, 267-268
(1992). In some instances, however, the CWA can apply to the
Federal Government just as it applies to any nongovernmental
entity, such as the CWA "federal facilities" provision,
33 U.S.C. § 1323(a). The Secretary, employing statutory
construction and a look to the legislative history, reasoned that
the employee protection provision of the CWA "would appear
to be a Federal requirement respecting control and abatement of
water pollution" and therefore fits within the "federal
facilities" provision.
Relationship to the Civil Service Reform Act
The Secretary viewed the Air Force's contention in regard to the
CSRA as one of implied repeal of the CWA, and found that there
was no evidence that the CSRA repealed a broad range of earlier
enacted laws that explicitly provide substantive protections to
whistleblowers, and instead found case law indicating that the
CSRA was to provide additional protection for federal
whistleblowers. See Borrell v. United States Intern.
Communications Agency, 682 F.2d 981, 990 (D.C. Cir. 1982),
and that CSRA does not foreclose other avenues of relief for
federal employees where Congress otherwise has provided. See
Veit v. Heckler, 746 F.2d 508, 511 (9th Cir. 1984). The
Secretary distinguished cases in which Federal employees were
foreclosed other statutory avenues on the ground that the CSRA
provides a comprehensive scheme for administrative and judicial
review of Federal personnel actions and practices. The
distinction is that, for the most part, those cases dealt with
situations in which the employee was trying to bypass the CSRA
and go directly to the courts, and thus involves the employee's
personal interest vis-a-vis the Federal governments's interest in
the sound and efficient administration of its operations. The
Secretary also noted that when the Whistleblower Protection Act
of 1989 was enacted (which amended section 2303(b)(8) of the
CSRA), Congress indicated that it was not to be the exclusive
remedy for whistleblowers. See 5 U.S.C. § 1222;
Joint Explanatory Statement, 135 Cong. Rec. 4,514, 5,035 (1989).
[Editor's note: This is a very brief summary, and perhaps
an oversimplification, of the Secretary's rulings.]
XIV B 4 e Federal government
EPA filed a motion for summary decision in Emory v. United
States Environmental Protection Agency, 93-SDW-4 (ALJ
Dec. 3, 1993), contending that the Civil Service Reform Act is
the exclusive remedy for federal employee whistleblower, that the
United States and federal agencies are not covered employers, and
that federal employees are not covered employees.
In denying the motion, the ALJ found that
the Secretary rejected the argument that the Civil
Service Reform Act of 1978 provide a preemptive and
exclusive remedy for federal employee whistleblowers in
Conley v. McClellan Air Force Base, 84-WPC-1
(Sec'y Sept. 7, 1993), slip op. at 9-17, and Pogue
v. United States Dept. of Navy, 87-ERA-21 (Sec'y
May 10, 1990), rev'd on other grounds,
Pogue v. United States Dept. of Labor,
940 F.2d 1287 (9th Cir. 1987);
Complainant was an employee, and nothing in the
statutes or the legislative history of the statutes
adjudicated under Part 24 suggests exclusion of
government employees;
EPA was a "person" subject to the employee
protection provisions of all the statutes invoked
except the Clean Water Act (the United States is
expressly included as a person under the ERA, CAA,
CERCLA, SDWA and SWDA, and by reference to the
citizen's suit sections of the TSC);
CAA, CERCLA, CWA, SDWA, SDWA all have virtually
identical federal facilities provisions. The federal
facilities provision of the CWA was found by the
Secretary in Conley to subject the federal
government to all requirements of the CWA; CERCLA's
federal facilities provision was interpreted much the
same way in Pogue.
XIV.B.4.e. NASA
In Stephenson v. National Aeronautics & Space
Administration, 94-TSC-5 (ALJ June 27, 1994), the ALJ
concluded that in the absence of a ruling by the Secretary
upholding DOL jurisdiction under TSCA when that jurisdiction has
been challenged on the basis of sovereign immunity, a proceeding
under 15 U.S.C. § 2622 cannot be maintained. The ALJ
concluded that NASA, as an agency of the United States government
has not waived its sovereign immunity from suit under that TSCA.
He therefore recommended that complainant's complaint against
NASA under 15 U.S.C. § 2622 be dismissed. The ALJ did not
make a similar recommendation in regard to the CAA complaint, in
which a "person" is expressly defined to include the
United States thereby waiving sovereign immunity in clear terms.
In contrast, no such expressed waiver is contained in 15 U.S.C.
§ 2622.
XIV B 4 e Environmental Protection Agency
Marcus v. Environmental Protection
Agency,
92-TSC-5 (Sec'y Feb. 7, 1994)
The employee protection provisions of the CERCLA, SDWA, CWA,
and the CAA covers employees of the Federal government "to
the same extent, both procedurally and substantively, as
[employees of] any nongovernmental entity ..." 42 U.S.C.
§ 9620(a)(1). The CERCLA provisions expressly include the
United States Government in its definition of "person."
Similarly, federal facilities are expressly subject to the SDWA,
CWA, and the CAA. Thus, the EPA cannot claim governmental
immunity from the statutes.
The Secretary also rejected the EPA's argument that the CSRA
impliedly repeals the environmental whistleblower statutes as
applied to federal employees. See Pogue v. U.S. Department of
the Navy Mare Island Shipyard, 87-ERA-21, (Sec'y May 10,
1990), rev'd on other grounds, 940 F.2d 1287 (9th Cir.
1990); Conley v. McClellan Air Force Base, 84-WPC-1,
(Sec'y Sept. 7, 1993).
Finally, the Secretary found that the Complainant engaged in
a protected activity and sufficiently established that the
protected activity motivated not only the Complainant's discharge
but also the Inspector General's report which was used as a
pretext to discharge him.
The Secretary ordered the EPA to reinstate Complainant to
his former or comparable position together with the compensation,
terms, conditions, and privileges of his former employment.
Consequently, the Complainant's motion for a temporary
restraining order and an injunction preventing termination of his
employee health insurance plan was moot and the motion was
denied.
XIV B 4 e Civil Service Reform Act not
exclusive remedy for federal
employees
In Jenkins v. U.S. Environmental Protection Agency,
92-CAA-6 (Sec'y May 18, 1994), Respondent contended that
Complainant's exclusive remedy arises under the Civil Service
Reform Act. The Secretary characterized this contention of one
of implied repeal: that the CSRA, with its comprehensive scheme
of remedies to enforce personnel prohibitions, effectively has
repealed the environmental whistleblower statutes as they apply
to Federal government employees. The Secretary adopted the
reasoning of Marcus v. U.S. Environmental Protection
Agency, 92-TSC-5 (Sec'y Feb. 7, 1994), Pogue v. U.S.
Department of the Navy Mar Island Shipyard, 87-ERA-21 (Sec'y
May 10, 1990), rev'd on other grounds, 940 F.2d 1287 (9th
Cir. 1990), and Conley v. McClellan Air Force Base, 84-
WPC-1 (Sec'y Sept. 7, 1993) in rejecting this contention.
XIV B 4 e Federal employee's right to seek relief under
CERCLA
In Pogue v. United States Dept. of the Navy, 87-
ERA-21 (Sec'y May 10, 1990), rev'd on other grounds,
Pogue v. United States Dept. of Labor, 940 F.2d
1287 (9th Cir. 1987), the Navy asserted that the Secretary of
Labor lacked jurisdiction to entertain Complainant's employee
protection complaint under CERCLA because (1) there is no express
language in CERCLA, nor any express statement in its legislative
history, indicating coverage of Federal employees; (2) that there
has been no waiver of sovereign immunity of the Federal
government; and (3) that CERCLA does not cover Federal employees
because the CSRA established for Federal employees a
comprehensive scheme to address all claims concerning adverse
personnel actions.
The Secretary held
(1) Statutory language. The CERCLA whistleblower
provision provides that no "person" shall
discriminate against "any employee." 42
U.S.C. § 9610(a). The definition of
"person" for purposes of this subchapter
specifically includes "United States
Government." 42 U.S.C. § 9601(21). There is
no ambiguity in this language that would support
exclusion of Federal employees as complainants. This
is confirmed by the Federal facilities section, which
requires Federal agencies to comply with the CERCLA
requirements to the same extent as nongovernment
persons. 42 U.S.C. § 9620(a). Moreover, a
Federal employee may file a citizen's suit against an
agency for violation of environmental standards, 42
U.S.C. § 9659, and a narrow reading of "any
employee" to exclude Federal employees would
frustrate the statute's goals, see Dedham Water Co.
v. Cumberland Farms Dairy Inc., 805 F.2d 1074, 1081
(1st Cir. 1986) (CERCLA a remedial statute that should
be construed liberally), by diminishing the sources
through which information could be obtained regarding
compliance with the environmental requirements of the
statute.
(2) Sovereign Immunity. Congress waived sovereign
immunity by including the Federal government in the
definition of "person", by the Federal
facilities provision (which although revised in 1986
was included int he original act), and by including
federal employees in the citizen's suit
provision.
[footnote]
The Secretary also rejected an argument that the Secretary lacks
authority to issue an order directed at another Federal agency
because only the President has such power. The Secretary found
no discretion not to require abatement of the violation and order
appropriate relief where a violation is found.
The Secretary likewise rejected an argument that CERCLA did
not apply because the Navy was not allocated funds for relief for
environmental whistleblowers. Failure to allocate funds does not
defeat a Government obligation created by statute. See New
York Airways, Inc. v. United States, 369 F.2d 743, 748 (Ct.
Cl. 1966).
(3) Preemptive effect of the Civil Service Reform Act of
1978. CERCLA was enacted more than two years after
the CSRA, and yet made clear through CERCLA's
definition of "person" and inclusion of the
Federal facilities provision that CERCLA whistleblower
provisions apply to the Federal government. Moreover,
in the Joint Explanatory Statement to the Whistleblower
Protection Act of 1989, which amended section
2302(b)(8) of the CSRA to strengthen the protection
afforded whistleblowers, Congress made it clear that
the WPA was not meant to limit any right or remedy that
might be available under "a large number of
environmental ... statutes which provide specific
protection to employees who cooperate with federal
agencies." Although the WPA was enacted after the
activity of Complainant in the instant proceeding, the
Secretary found the legislative history to be entitled
to consideration.
XIV B 4 e
In Pogue v. United States Dept. of the Navy, 87-
ERA-21 (Sec'y May 10, 1990), rev'd on other grounds,
Pogue v. United States Dept. of Labor, 940 F.2d
1287 (9th Cir. 1987), Complainant argued that Respondent waived
the defense of sovereign immunity because it was not raised
before the ALJ. See Rule 12(b) of the Federal Rules of Civil
Procedure. The Secretary held that sovereign immunity is a
jurisdictional defense that may be raised at any time.
In Delcore v. International Brotherhood of Electrical
Workers, 91-ERA-7 (ALJ Dec. 4, 1990), the administrative
law judge recommended dismissal of the complaint on the ground
that the respondent, a labor union, is not an employer within the
meaning of the ERA anti-discrimination provisions.
To the same effect: Delcore v. International Brotherhood
of Electrical Workers, 91-ERA-27 (ALJ Mar. 26, 1991).
XIV B 4 f Rule 21 dismissal of non-employer
In Flanagan v. Bechtel Power Corp., 81-ERA-7 (Sec'y
June 27, 1986), it was found that a building trade representative
was not an employer and therefore not a proper party to the
proceedings. The ALJ cited Rule 21 of the Federal Rules of Civil
Procedure as authority for dropping the party as a defendant in
the action. Flanagan v. Bechtel Power Corp., 81-ERA-7 (ALJ
Nov. 19, 1981).
[Editor's note: Neither the ALJ nor the Secretary's decisions
make it clear why the building trade representative was named as
a party.]
XIV B 4 f Employer; labor union
The Secretary adopted the ALJ's finding that the respondent,
a labor union, was not an employer within the meaning of the ERA
anti-discrimination provisions. In a footnote, the Secretary
noted that subsequent to the filing of the complainant's
complaint, the ERA was amended to broaden the definition of
"employer." The amendments, however, apply only to
complaints filed after October 24, 1992, the date of enactment.
Delcore v. International Brotherhood of Electrical
Workers, 91-ERA-7 (Sec'y July 21, 1994).
XIV.B.4.f. Labor union not an employer
In Delcore v. International Brotherhood of Electrical
Workers, 91-ERA-7 (Sec'y July 21, 1994), the Secretary
adopted the ALJ's recommendation that the complaint be dismissed
"since the Respondent/union is not an employer within the
meaning of the ERA anti-discrimination provisions." See
Delcore v. Intern. Brotherhood of Elec. Workers, 91-ERA-27
(Sec'y Jan. 12, 1994).
Under the employee protection provision of the SWDA, 42 U.S.C.
§ 6971(a), reference is made to "any proceeding under
this chapter." The referenced chapter is "Chapter 82,
Solid Waste Disposal," 42 U.S.C. §§ 6901-6992k
(1988), which governs, inter alia, the treatment, storage,
transportation, and disposal of hazardous waste. Subchapter III,
42 U.S.C. §§ 6921-6939b.
Where the chemicals used by a respondent are regulated under the
Act, 40 C.F.R. § 261.33(f) (1991), and the respondent is
subject to regulation as a "small quantity generator,"
40 C.F.R. § 261.5(a) and (g), complaints about chemical
storage and disposal are covered substantively under the SWDA
whistleblower provision.
Williams v. TIW Fabrication & Machining, Inc.,
88-SWD-3 (Sec'y June 24, 1992).
Where the complainant is a contract employee whose responsibility
includes reporting safety concerns to the contractor and the
licensee, the whistleblower provision of the ERA applies. The
complainant's employer was a contractor to a contractor to the
licensee of the Nuclear Regulatory Commission. DOL's
jurisdiction does not depend on a direct employer-employee
relationship, but derives from the construction and application
of the statute; hence right to control and joint employer tests
are not relevant. Section 5851(a) of the ERA provides that
"[n]o employer . . . may discharge any employee or
other discriminate against any employee . . . ."
(Emphasis added.) It is not limited in terms to discharges or
discrimination against any specific employer's employees.
St. Laurent v. Britz, Inc., 89-ERA-15 (Sec'y Oct.
26, 1992), slip op. at 2-3.
[Nuclear & Environmental Whistleblower Digest XIV B 4 i]
EMPLOYER EMPLOYEE; OWNER OF CONTRACT FIRM NOT A COVERED "EMPLOYEE"
In Demski v. Indiana Michigan Power Co., ARB No. 02 084, ALJ No. 2001 ERA 36 (ARB Apr. 9, 2004), the Complainant was the president and sole shareholder of a company that supplied contract labor for power generating plants, and had several contracts to supply workers for Respondent's Cook nuclear plant. Under the express terms of the contracts, the Complainant's company was defined as not an agent or employee of the Respondent. The Complainant alleged that the Respondent unlawfully terminated the contracts because she had reported safety concerns to Respondent's management and the NRC. The ARB found that two of the essential elements of a whistleblower claim under the ERA are that the complainant must be an employee and the respondent must be an employer. The ARB found that the undisputed facts of the case established that the Complainant was a contractor, and an employer, and not an employee of the Respondent or her company, and therefore she was not entitled to relief under the whistleblower provision of the ERA.
"EMPLOYER" WITHIN MEANING OF 42 USC §
5851(a)(2)(D) WHERE NO INDEMNIFICATION SPECIFIED IN CONTRACT WITH
DOE
[N/E Digest XIV B 4 i]
In Beacham v. PAI
Corp., 94-ERA-27 (ALJ Feb. 7, 1996), the
Respondent requested dismissal based on the affirmative
defense of lack of subject matter jurisdiction because the
Respondent assertedly was not an "employer" as
defined by 42 U.S.C. § 5851(a)(2)(D) as amended in
1992. In pertinent part, section 5851(a)(2)(D) provides
that the term "employer" includes:
(D) a contractor or subcontractor of the
Department of Energy that is indemnified by the
Department under section 170 d. of the Atomic Energy
Act of 1954 (42 U.S.C. 2210(d)), . . .
The Complainant was employed by the Respondent pursuant
to two contracts. Under the first, the Respondent supplied
consulting services to the United States Department of
Energy (DOE) at the Savannah River Operations Office. Under
the second, the Respondent provided technical services as a
subcontractor to a third company which had a prime contract
with DOE, also at the Savannah River Operations Office. The
Respondent maintained that it was not an
"employer" within the meaning of the ERA because
the contract and the subcontract did not provide for
indemnification.
The ALJ reviewed the legislative history surrounding the
1992 ERA amendments, and the Price Anderson Act Amendments
of 1988 (which provide that the Secretary of Energy shall
enter into indemnification agreements until August 1, 2002
"...with any person who may conduct activities under a
contract with the Department of Energy that involve the risk
of public liability...." 42 U.S.C. §
2210(d)(1)(A)) and the resulting DOE acquisition
regulations, and concluded that the indemnity language must
be read into the contracts. The ALJ concluded that
"[a] narrow reading of the Act would encourage
employers to intentionally leave out indemnity language in
an effort to evade the whistleblower protection provisions
of the Act."
XIV B 4 i Contract worker; protection regardless of
categorization as employee of contract firm or
firm at which he performed the contract work
The employee protection provision of the ERA protected a contract
worker regardless of whether he was an employee of the contract
firm or the power corporation at which he performed the contract
work. Dysert v. Florida Power Corp., 93-ERA-21
(Sec'y Aug. 7, 1995), citing Hill v. TVA, 87-ERA-23
and 24 (Sec'y May 24, 1989).
XIV B 4 i Contractor to licensee
A contractor to a licensee of a nuclear power facility is an
employer covered by the ERA, 42 U.S.C. § 5851(a).
Nichols v. Bechtel Construction, Inc., 87-ERA-44
(Sec'y Oct. 26, 1992), slip op. at 8.
XIV B 4 i Requirement of employer-employee
relationship
In Hill v. Tennessee Valley Authority, 87-ERA-23
and 24 (Sec'y May 24, 1989), former employees of a nuclear safety
consulting company that had a contract with the respondent
alleged that the respondent violated the ERA when it
significantly restricted the scope of the consulting company's
contract and then refused to renegotiate the contract, causing
the termination of the complainants' employment in retaliation
for the complainants' investigation, corroboration and disclosure
of safety problems in the respondent's nuclear power program.
The ALJ held that the ERA requires an employer-employee
relationship between the parties. The Secretary disagreed.
Section 5851(a) provides in pertinent part that "[n]o
employer . . . may discharge any employee or otherwise
discriminate against any employee . . . ." (emphasis
added) It is not limited in terms to discharges or
discrimination against any specific employer's employees, nor to
"his" or "its", employees. Compare, e.g., 29
U.S.C. § 158(a)(4) (1982) ("an employee");
29 U.S.C. § 158(a)(5) ("his employees").
Moreover, section 5851(b) permits the filing of a complaint be
"any employee, who believes he has been discriminated
against by any person" in violation of subsection
(a).
Given the purposes of the ERA whistleblower provision, on-site
employees of a contractor, whose responsibility is identifying,
investigating and reporting safety complaints to the licensee,
can be an important source of information regarding nuclear plant
safety. Thus, application of the ERA to the instant claims is
consistent with the legislative history of the whistleblower
provision to "provide protection to employees of Commission
licensees, applicants, contractors, or subcontractors" who
pursue quality and safety investigation and complaints. H.R.
Conf. Rep. No. 95-1796, 95th Cong., 2d Sess. 16 (1978), reprinted
in [1978] U.S. Code Cong. & Admin. News 7304, 7309. It is
also
consistent with the Secretary's interpretation of section 11(c)
of the Occupational Safety and Health Act of 1970, 29 U.S.C.
§ 660(c) (1982). See 29 C.F.R. § 1977.5(b) (1988). In
addition, it is consistent with the National Labor Relations Act
definition of employee, the Title VII definition of employer, and
prior ERA decisions of the Secretary indicating that applicants
for employment and former employees are protected from
discrimination by their prospective and former employers,
although no employer-employee relationship existed at the time of
the alleged discrimination. See Flanagan v. Bechtel Power
Corp., 81-ERA-7 (Sec'y June 27, 1986); Egenrieder v.
Metropolitan Edison Co., 85-ERA-23 (Sec'y Apr. 20,
1987).
The Secretary limited her ruling to the narrow facts and
circumstances of the case presented.
XIV B 4 i Definition of employer
A subcontractor of an NRC licensee is an employer subject to ERA,
42 U.S.C. § 5851(a). Mackowiak v. University Nuclear
Systems, Inc., 735 F.2d 1159 (9th Cir. 1984).
In Culligan v. American Heavy Lifting Shipping Co., ARB No. 03-046, ALJ Nos. 2000-CAA-20, 2001-CAA-9 and 11 (ARB June 30, 2004), the ARB found that the ALJ had properly dismissed five individuals named as Respondents where the Complainant presented no evidence that the individuals had control over the terms and conditions of the Complainant's employment, or had acted in any capacity except as a supervisor within the scope of their employment with the Employer. The Board stated that "[e]ven if they engaged in discriminatory activity, which is not evident in this record, any liability would be imputed to their employer. Lissau v. Southern Food Services, Inc, 159 F.3d 177, 181 (4th Cir. 1999)."
XIV B 4 j Personal
liability
Where the owner and president of Midwest Inspection Services, and
Midwest itself, were named as respondents, and the
owner/president did not raise the defense of no personal
liability below (on the ground that the complainant was employed
by Midwest Inspection -- a corporation), he sent the telegram on
behalf of himself and Midwest appealing the Wage and Hour
determination, he shared an attorney with Midwest, all pleading
were filed on behalf of both respondents, and on review before
the Secretary he made no legal argument to support the contention
that he should not be held personally liable, the Secretary held
that the issue had been waived, and that the owner/president
could be held personally liable for the violations of the ERA in
the case. Lederhaus v. Donald Paschen & Midwest
Inspection Service, Ltd., 91-ERA-13 (Sec'y Oct. 26,
1992), slip op. at 14-15.
[Nuclear & Environmental Whistleblower Digest XIV B 4 j]
EMPLOYER; NO LIABILITY OF RESPONDENTS' ATTORNEY AND LAW FIRM WERE THEY WERE NOT COMPLAINANT'S EMPLOYERS
[Nuclear & Environmental Digest XIV B 4 j]
INDIVIDUALS NAMED AS RESPONDENTS
In Williams v. Lockheed Martin Energy Systems, Inc., ARB No. 98-059, ALJ No. 1995-CAA-10 (ARB Jan. 31, 2001), one member of the Board found in a dissent that the ALJ should not have summarily dismissed two individuals named as Respondents. The dissenter noted that individual liability was not supported under the TSCA and the CAA -- which prohibit "employers" from discriminating against whistleblowers --but that under the CERCLA and SWDA individual liability is a possibility because those statutes provide that no "person" shall discriminate against whistleblowers. The two other ARB members, however, declined to reach this issue as it was not raised by Complainant on appeal.
EMPLOYER; INDIVIDUALS AS: CABINET SECRETARY; FORMER HEAD OF
OAA; SUPERVISOR
[N/E Digest XIV B 4 j]
In Varnadore v. Oak Ridge National Laboratory,
92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996),
the Board held that the Secretary of Energy was not the
Complainant's employer within the meaning of the ERA. Citing
Stevenson v. National Aeronautics and Space
Administration, 94-TSC-5 (Sec'y July 3, 1995) (individuals
are not subject to suit under the TSCA and CAA).
Similarly, the Board held that a complaint lodged against the
former head of the Office of Administrative Appeals, U.S. Dept.
of Labor, should be dismissed because she was not the
Complainant's employer. Her only connection to the Complainant
was that she was alleged to have been employed by one of the
Respondent's to advise it on the defense of the complaint brought
by the Complainant.
In addition, the Complainant's supervisor was dismissed as a
party where the Complainant did not allege that the supervisor
was his employer.
XIV B 4 j PARTIES; LIABILITY OF UNINCORPORATED DIVISIONS OR
DEPARTMENTS, PARENT COMPANIES; INDIVIDUAL EMPLOYEES
In Varnadore v. Oak Ridge National Laboratory,
95-ERA-1 (ALJ Sept. 20, 1995), the ALJ recommended dismissal of
the following parties:
an unincorporated division of the Complainant's
employer;
unincorporated departments of the Complainant's
employer;
parent companies of the Complainant's employer;
an individual employed by the Complainant's employer;
and
a consultant (the former Director of the Office of
Administrative Appeals) for the Complainant's employer.
The ALJ indicated that any discriminatory acts committed by
these organizations or individuals would be attributed to the
Complainant's employer, which is the entity liable for any
violations. The complaint also named the Department of Energy.
The ALJ similarly recommended dismissal of a satellite office of
DOE and of the Secretary of Energy.
XIV B 4 j Individual liability for nonemployers
Individuals who are not employers are not subject to liability
under the employee protection provisions of the TSCA and the CAA.
Thus, in Stephenson v. National Aeronautics & Space
Administration, 94-TSC-5 (Sec'y July 1, 1995), four
management employees and a Wage & Hour investigator were
properly dismissed as Respondents.
XIV.B.4.j. "Persons" includes
corporations
The SDWA applies to "persons," 42 U.S.C. §6971(a),
and "persons" includes corporations. 42 U.S.C. §
6903(15). Crosier v. Westinghouse Hanford Co., 92-
CAA-3 (Sec'y Jan. 12, 1994).
XIV B 4 j Security guard service
In Johnson v. Old Dominion Security, 86-CAA-3, 4
and 5 (Sec'y May 29, 1991), the Respondent contended that it was
not a covered "employer" because it did not engage in
the activities regulated by the Act (e.g., the emission of
airborne pollutants or the use, storage, and disposal of toxic
substances) and because it had no control over conditions giving
rise to the complaints. The Respondent was a security service
and the complainants were employed as security guards at a U.S.
Air Force Plant operated by General Dynamics Corporation.
The Secretary held that instant situation represents the exposure
of a contractor's employees to hazards created by the operator of
the worksite. But for the business arrangement of contracting
with another employer for the particular services, a single
employer would control all employees directly. In the
circumstances of this case it would not make sense to tolerate
discriminatory action taken by one employer while outlawing it
when taken by another. The Respondent's argument that it should
not be held accountable since it assertedly had no control over
the hazardous conditions begs the point. The issue here is
employment discrimination which the Respondent was perfectly
capable of effecting.
XIV.B.4.j. Individual managers and supervisors
In Stephenson v. National Aeronautics & Space
Administration, 94-TSC-5 (ALJ June 27, 1994), the ALJ
noted that in a prior order he had dismissed five individual
respondents on the ground that they are not employers, and hence,
not proper parties respondent in these proceedings.
XIV B 4 j Law firm found not to be an
"employer"
In Saporito v. Florida Power & Light Co.,
94-ERA-35 (ALJ Apr. 5, 1995), both a
power company and its law firm were named as Respondents. The
law firm had represented the power
company in several other proceedings involving the Complainant
and matters before the Department of
Labor and the Nuclear Regulatory Commission. The ALJ recommended
dismissal of the law firm on its
motion for summary decision on the ground that a law firm is not
an "employer" within the
meaning of the ERA, 42 U.S.C. § 5851(a)(2). The ALJ was not
persuaded by the Complainant's
contention that its association with and professional services
and activities as advocate for the power
company inducted the law firm into the category of an
"employer" under the ERA.
In Slavin v. Pacific Northwest National Laboratory, ARB No. 00 081, ALJ No. 2000 ERA 26 (ARB Feb. 27, 2003), Complainant an attorney who has represented whistleblowers B alleged that he was discriminated against under the whistleblower provisions of the ERA and various environmental laws when the administrators of various "listserv" chat rooms (1) required that his future posting be approved or (2) banned him from the chat rooms altogether. Complainant alleged that DOE and its contractors combined and conspired to encourage censorship and blacklisting against him.
The ARB affirmed the ALJ's recommended dismissal of the complaint based on the Complainant's lack of standing to bring the action either as an employee or authorized employee representative. The ARB, however, clarified the ALJ's decision to the extent that the ALJ was unaware of the ARB's then recent decision in Anderson v. Metro Wastewater Reclamation District, ARB No. 98 087, ALJ No. 1997 SDW 7 (ARB Mar. 30, 2000), in which the ARB held that "authorized representative" in environmental whistleblower statutes which prohibit retaliation against such persons "encompasses any person requested by any employee or group of employees to speak or act for the employee or group of employees in matters within the coverage of [those] statutes...."
In the instant case, the ARB found it was not necessary to describe the precise parameters of the term because Complainant had failed to prove "that his alleged protected activity, i.e., his use of listservs, was in furtherance of a specific client statutory employee's alleged protected activity, rather than in furtherance of Complainant's own personal concerns as a member of the public, albeit an attorney who has represented employees under the whistleblower statutes."
[Nuclear and Environmental Whistleblower Digest XIV C]
COVERED LITIGANTS; AUTHORIZED REPRESENTATIVE OF EMPLOYEES; POLICITICAL APPOINTEE TO BOARD OF DIRECTORS OF GOVERNMENT ENTITY
In Anderson v. Metro Wastewater Reclamation District, No. 03-9570 (10th Cir. Sept. 2, 2005) (case below ARB No. 01-103, ALJ No. 1997-SDW-7), the Tenth Circuit ruled that a political appointee to the Board of Directors of a metropolitan wastewater reclamation district ("Metro") was not an "authorized representative of employees" during her tenure as a Board director, and therefore lacked standing to sue under the employee protection provisions of seven environmental statutes.
The Court affirmed the ARB's holding that the plain language of the ERA, SDWA, CAA and TSCA only provide a cause of action to employees and not to their authorized representatives. The Court also affirmed the ARB's holding that the Complainant had failed to prove that she was an "authorized representative" of Metro employees and therefore failed to establish a necessary element of her claim under the CERCLA, SWDA and FWPCA.
First, the Court found that Congress' intent for the meaning of the term "authorized representative" was not clear, and therefore it would employ a Chevron deferential review on whether the ARB had presented a permissible interpretation. The final ARB decision required some tangible act of selection by employees in order for a person to be an "authorized representative of employees." The Court held that this construction was permissible.
Second, the Court agreed with the ARB's finding that, as a Board Director who was required to represent the citizens and not any particular segment of society or a particular interest group, the Complainant could not, as a matter of law "represent" Metro employees or union members. The Court agreed that any political motivation behind her appointment was not relevant. Finally, the Court found that substantial evidence supported the ARB's determination that the Complainant had failed to prove that she had been authorized to represent the employees or union members, and that any authorization amounted to self-authorization.
[Nuclear and Environmental Whistleblower Digest XIV C]
CAUSE OF ACTION; UNDER THE ERA, SDWA, CAA AND TSCA ONLY THE EMPLOYEE AND NOT HIS REPRESENTATIVE ARE COVERED
In Anderson v. Metro Wastewater Reclamation District, No. 03-9570 (10th Cir. Sept. 2, 2005), the Tenth Circuit held that the plain language of the whistleblower provisions of the ERA, SDWA, CAA and TSCA prohibit discrimination based on an employee's or his representative's protected activity. A whistleblower cause of action, however, depends on discrimination directed toward the employee. The cause of action inures to the benefit of the employee and not his representative. In contrast, the CERCLA, SWDA and FWPCA also protect authorized representatives of employees.
[Nuclear and Environmental Whistleblower Digest XIV C]
DEFINITION OF "AUTHORIZED REPRESENTATIVE OF EMPLOYEES" INCLUDES A TANGIBLE ACT OF SELECTION
In Anderson v. Metro Wastewater Reclamation District, No. 03-9570 (10th Cir. Sept. 2, 2005), the Tenth Circuit found that the Congress' intent in using the term "authorized representative of employees" in the whistleblower provisions of the CERCLA, SWDA and FWPCA was not clear. Therefore, under Chevron, its inquiry was whether the ARB's definition of the term to require some sort of tangible act of selection was a permissible construction of the statute. The court found that it was.
[Nuclear and Environmental Whistleblower Digest XIV C]
STANDING OF MEMBER OF BOARD OF DIRECTORS
In Anderson v. Metro Wastewater Reclamation District, No. 03-9570 (10th Cir. Sept. 2, 2005), the Tenth Circuit affirmed the ARB's definition of the term "authorized representative of employees" as requiring some sort of tangible act of selection. The issue became, therefore, whether the Complainant fit that definition.
The Complainant had been appointed to the Board of Directors of a metropolitan sewage disposal district, which was a political subdivision of the State. The Complainant's nomination had been by the mayor of Denver who was responding to a union's request for a Board member sympathetic to the union's views. During her tenure the Complainant had been outspoken about environmental issues that she believed reflected the views of union members.
The ARB found that under the relevant law, Board members were legally required to represent the citizens and not any particular segment of society or a particular interest group, and that any political motive behind an appointment was not relevant. In addition, the ARB found that the Complainant's evidence of authorization amounted, at best, to self-authorization. The Tenth Circuit found that substantial evidence supported these findings, and that the Complainant did not have standing under the whistleblower provisions of CERCLA, SWDA or FWPCA.
[Nuclear & Environmental Whistleblower Digest XIV C] AUTHORIZED REPRESENTATIVE OF EMPLOYEES
In Anderson v. Metro Wastewater Reclamation District, ARB No. 01 103, ALJ No. 1997 SDW 7 (ARB May, 29, 2003), Complainant was an acknowledged environmental activist and part time instructor specializing in environmental issues at the University of Colorado. She was appointed to and confirmed as a member of a 59 member board of directors for the Denver wastewater reclamation district (Metro). Complainant was opposed to a settlement plan for pending litigation to accept for treatment wastewater from a Superfund site, and spoke out against it in board meetings, to the public and to the press. Complainant alleged that a number of actions taken by the board were in violation of the ERA and environmental whistleblower laws. Upon review of a ALJ decision recommending finding in favor of the Complainant, the ARB dismissed the complaint, finding that Complainant had failed to establish standing as an "authorized representative" under the pertinent whistleblower statutes.
The ARB first determined that "authorized representatives" are not afforded their own separate causes of action under the SDWA, CAA, TSCA and ERA, even if acting on the request of an employee. The ARB then determined that Complainant was not an authorized representative of metro district employees or union members for purposes of standing under the SWDA, CERCLA and the FWPCA, while serving on the Metro board of directors because the pertinent state law directed representation of the City and County of Denver, not a particular interest group, and because a preponderance of the evidence did not establish that Metro employees or union members authorized her to be their representative during the relevant period.
In regard to the second finding, the ARB indicated that "there must be some tangible act of 'selection' or authorization to enable the representative to perform any actions on behalf of the employees who selected him or her or authorized his or her representation." Slip op. at 12 (citation omitted). The Board indicated that "self authorization" or public perception is not sufficient. Even if the union viewed Complainant sympathetically, she did not have a mandate to speak for the union members or Metro employees at Board meetings. Although individual union members viewed her as their "voice" on the Metro board, this perception did not confer authority on Complainant to be the union's authorized representative. The ARB also pointed out testimony indicating that Complainant was not an authorized union bargaining agent.