DATE ISSUED: April 9, 1986
Case No. 86-ERA-11

In the Matter of

W. ALLAN YOUNG

    v.

E. H. HINDS

Appearances:

James L. Cowden, Esq.
    For the Complainant

Thomas F. McInerney, Esq.
    For the Respondent

Before: THOMAS M. BURKE
    Administrative Law Judge

    This is a proceeding brought under the Energy Reorganization Act of 1974 ("ERA"), 42 U.S.C. § 5851 and the regulations promulgated thereunder at 20 C.F.R. Part 24. These provisions

protect employees against discrimination for attempting to carry out the purposes of the ERA or of the Atomic Energy Act of 1954, as amended, 42 U.S.C.A. § 2011, et seq. The Secretary of Labor is empowered to investigate and determine "whistleblower" complaints filed by employees at facilities licensed by the Nuclear Regulatory Commission ("NRC") who are discharged or otherwise discriminated against with regard to their terms and conditions of employment for taking any action relating to the fulfillment of safety or other requirements established by the NRC for the construction and operation of nuclear power plants.

    In this proceeding the Complainant, W. Allan Young, contends that he was discharged from employment by the Respondent, E. H. Hinds, because he had engaged in protected activity, that is, had reported conditions which he believes could lead to unnecessary exposure to radiation or otherwise violate Nuclear Regulatory Commission regulations. The Area Director of the Wilkes-Barre, Pennsylvania, regional office of the Employment Standards Administration, U.S. Department of Labor, dismissed the complaint without an investigation on the grounds that the Complainant was not an "employee" within the meaning of the ERA.

    The Complainant appealed his complaint on December 13, 1985 to the Office of Administrative Law Judges. A conference was held by telephone on January 7, 1986 between counsel for the Complainant, counsel for the Respondent, E. H. Hinds, and the undersigned presiding administrative law judge. Counsel for the parties agreed to attempt to stipulate to the relevant facts thereby alleviating the need for a hearing; however, they were unsuccessful and a hearing was held in Harrisburg, Pennsylvania, on March 20, 1976.

    The Complainant waived the speedy decision provisions of 29 C.F.R. Part 24 for 120 days to allow both parties an opportunity to investigate their cases and to attempt to agree on the facts. In accordance with the requirements of Part 24, as relaxed by the partial waiver, this Recommended Decision and order is to be issued on or before April 9, 1979, and the action of the Secretary of Labor is due on or before June 12, 1986.

    The parties agreed that the sole issue to be decided at this time is whether the Complainant could be considered as an "employee" under the employee protection provisions of the ERA. It was agreed that if a determination is made that the

Complainant's situation is covered by the ERA, then the complaint would be remanded to the Employment Standards Administration of the U.S. Department of Labor for an investigation of the facts alleged by the Complainant in his complaint.

    Complainant is a pipefitter and welder who obtains employment through a job referral system arranged between his local union, the Plumbers and Pipe Fitters 520, the International Union and the companies that contract their services to the Philadelphia Electric Company ("PECO") at its Peach Bottom Atomic Power Station in Delta, Pennsylvania. The contracting companies that are in need of plumbers or pipefitters for a short duration, contact Union Local 520, who assign workers to the job from an "out-of-work list."

    Complainant was contacted by Local 520 and told to report to the Peach Bottom Plant on August 13, 1985, to work as a pipefitter for the Respondent E. H. Hinds, a contracting company that performs maintenance work for PECO. Complainant arrived at about 7:10 a.m., on August 13, 1985, at the power plant, and along with other workers from the union hall, met with Respondent's general foreman and job steward. Complainant and the other workers were escorted to a training classroom where they filled out payroll forms, including the W-4, Internal Revenue Service, Employee Withholding Certificate Form. Approximately one-half hour later, Complainant was given a "payroll removal notice" by a representative of the Respondent. The notice stated that Complainant was discharged because of a lack of a security clearance. Complainant was also given a paycheck to compensate for the time he spent at the plant.

    Complainant was again referred by Local 520 to the Respondent on October 15, 1985; this time as a pipefitter. He arrived at Peach Bottom with four or five fellow workers from Local 520. He again filled out the payroll forms and was escorted to a classroom for training. About 15 minutes into the class, Complainant was paged by a superintendant for the Respondent and again given the "payroll removal notice" form which stated that he was discharged for "no site clearance." Complainant was also given a paycheck for $29.68. Complainant spent about two hours at the plant.

    Complainant files his complaint under the employee protection provisions of the ERA which provides:

"(a) Discrimination against employee. No 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 employment because the employee (or person acting pursuant to a request of the employee)--

    (1) Commenced, cause to be commenced, or is about to commence or cause to be commenced proceeding under this Act or the Atomic Energy Act of 1954, as amended, or a proceeding for the administration or enforcement of any requirement imposed under this Act, or the Atomic Energy Act of 1954, as amended;

    (2) Testified or is about to testify in any proceeding; or

    (3) Assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other action to carry out the purpose of this Act or the Atomic Energy Act of 1954, as amended."

       42 U.S.C. § 5851(a).

    There is no question that the Complainant had engaged in activity protected by the ERA prior to his dismissals by the Respondent. The Complainant was employed prior to June 1983, as a welder for Frank W. Hake, Inc., a contractor for PECO at the Peach Bottom Power Plant. While employed by Hake, Complainant complained that protective shielding procedures were contrary to safety standards. Complainant was discharged by Hake on June 10, 1983. After an investigation, the Administrator, Employment Standards Administration, found that the Complainant's complaints about radiation exposure were a motivating factor in his termination. Hake appealed the determination to the office of Administration Law Judges. Complainant and Hake reached a settlement and the charge was withdrawn.

    In 1984, Young was employed at Peach Bottom as a general foreman by the Great Atlantic and Pacific Pipe Welding and Construction Company ("GAPCO"). On July 19, 1984, GAPCO terminated Complainant's employment. The Department of Labor determined after an investigation that the Complainant was discharged soon after reporting to his employer and an on site ALAA administrator conditions which he believed were violations of NRC regulations. The Department of Labor found that GAPCO had violated the employee protection provisions of the ERA and ordered GAPCO to rehire Complainant and take other specific remedial actions. GAPCO appealed the order to the Office of Administrative Law Judges. Before a hearing could be scheduled, the Complainant withdrew his complaint.

    Complainant engaged in protected activity and was later discharged from employment for reasons that he believes were motivated by his protected activity. However, the Employment Standards Administration denied his complaint on the basis that the employee protection provisions provide no basis for a complaint against a prospective employer.

    After a review of the facts and the applicable law, it is determined that the employee protection provisions of the ERA do extend to the situation at hand as Complainant was an employee of the Respondent at the time he was discharged.

    The term "employee" is not defined by the "ERA" and no case law has developed on when the employer/employee relationship commences for purposes of the ERA. There has developed, however a body of case law interpreting "employee" in a comparable provision of the National Labor Relations Act ("NLRA"). The NLRA includes a provision intended to protect employees who report violations or otherwise exercise their rights by making it unlawful for an employee:

"To discharge or otherwise discriminate against an employee because he has filed charges or given testimony under the Act."

       28 U.S.C. § 158(a)(4).

95th Cong. & Admin. News 7303. They share a broad, remedial purpose of protecting workers from retaliation based on their concerns for safety and quality. C.f., Donovan v. Stafford Construction Co., 732 F.2d 954 (D.C. Cir. 1984).

    Initially, in order to effectuate the purpose of the employee protection provisions of the ERA, the term "employee" must be interpreted broadly. The provision is designed to encourage employees to report unsafe conditions at nuclear sites by guaranteeing employees that they will not later be subject to reprisals.

    "Employee" has been defined liberally by the courts in implementing the NLRA since the United States Supreme Court held in Phelps-Dodge Corp. v. NLRB, 313 U.S. 177, 61 S. Ct. 845, 85 L.Ed 1271 (1941), that job applicants who had previously engaged in political activities are considered "employees" under the States Supreme Court's liberal interpretation of "employee' in in Time-O-Matic, Inc., v. NLRB, 264 F.2d 96 (7th Cir. 1959), when it held that coercive statements to job applicants is a violation of the NLRA. The Court found that: "A violation of Section 8(a-)(11 of the Act was complete when the statements were made to prospective employees who are employees for purposes of the Act." The Eighth Circuit Court of Appeals in Reliance Insurance Companies v. NLRB, 415 F.2d 1 (8th Cir. 1969) held that a job applicant who is discriminated against because he was engaged in protected activities is an "employee" within the meaning of the Act.

    In John Hancock Mutual Life Insurance Co. v. NLRB, 191 F.2d 483 (D.C. Cir. 1951), the court discussed a prospective employee's coverage under the employee protection provisions of the NLRA. A job applicant was refused employment as an agent for an insurance company because when previously employed by the same insurance company he had filed charges under the NLRA and had testified before the National Labor Relations Board. In the unfair labor practice proceeding before the NLRB, the petitioner company defended on the grounds that: (1) the employee was not an "employee" within the meaning of the NLRA when he applied for the job as an agent; and (2) that a refusal to hire an applicant is not a form of proscribed discrimination. With respect to the defense that an applicant is not an "employee," the Court held that the NLRA's employee protection provision extends protection to applicants who had previously

filed charges or testified in proceedings under the NLRA. The Court found that the NLRA's prohibition against "otherwise discriminat[ing]" includes the refusal to hire an applicant. The Court reasoned:

"Under [the employer's] view the Act will permit denial of employment to an applicant such as [the complainant] on the grounds that he had filed charges or given testimony before the board. That would be not only to license the vicious practice of blacklisting but to thwart the administration of the Act itself by ignoring the ever present threat of such intimidation. Such a reading of the Act would be a perversion of legislative intent."

    The case law reveals that "employee" should be interpreted broadly enough to include prospective employees. In reality, however, Complainant's status was not that of a prospective employee but that of an employee, in fact. Complainant was under the supervision and control of the Respondent while he was at the power plant. He was obligated to attend the training session and was compensated for the time that he was at the plant. Also, the Respondent deducted Social Security and withholding taxes from his paycheck.

    Moreover, the Complainant is covered by the blacklisting prohibitions of the employee protection provisions of the ERA. 29 C.F.R. § 24.2(b) provides:

"Any person is deemed to have violated the particular federal law and these regulations if such person intimidates, threatens, restrains, coerces, blacklists, discharges, or in any other manner discriminates against any employee [who has engated in protected activities under the Act.]"

    The Courts have interpreted similar provisions of the NLRA as protecting an employee even after the employer/employee relationship terminated. An employer was found to have violated the NLRA by blacklisting or giving negative references about a past employee. Ferguson v. Mobil Oil Corp., 44 3F. Supp. 1334 (M.D., Ill. 1981).

    Accordingly, it is determined that the Complainant was an employee of the Respondent and such employment is protected by the employee protection provisions of the ERA and that the Administrator, Employment Standards Administration, must conduct an investigation to determine if the Complainant has been discharged, blacklisted, or otherwise discriminated against in that employment because he engaged in activity protected by the ERA.

    AND NOW, this 9th day of April, 1986, IT IS HEREBY ORDERED that this matter is remanded to the Administrator, Employment Standards Administration, to conduct an investigation to determine if Complainant was discharged from employment, blacklisted, or otherwise discriminated against in his employment by E. H. Hinds because he participated in activities described by 42 U.S.C. § 5851(a).

       THOMAS M. BURKE
       Administrative Law Judge

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