84-ERA-15

Steven Lockert,
    Complainant

    v.

Pullman Power Products Corporation,
    Respondent

    Administrative Law Judge (ALJ) Henry B. Lasky submitted a recommended decision and order to the Secretary on October 5, 1984 in this case arising under the employee protection provision of the Energy Reorganization Act of 1974, as amended, 42 U.S.C § 5851 (the Act). Judge Lasky held that raising safety and quality questions internally to one's employer is not a protected activity under the Act. That conclusion is inconsistent with the Secretary's decisions in Atchison v. Brown and Root, 82-ERA-9 (June 10, 1983) pp. 12-15, and Mackowiak v. University Nuclear Systems, Inc., 82-ERA-8 (April 29, 1983) pp. 8-10, as well as the Ninth Circuit's decision in Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (1984).¹ The current case arises within the jurisdiction of the Ninth Circuit.

    Although the ALJ was aware of the court's decision in Mackowiak, and the Secretary's decisions in that case and

    The ALJ simply refused to follow Mackowiak because he disagreed with it, saying it "constitute[s] a judicial amendment to a legislative enactment." The ALJ fundamentally misconstrued his role in the administration and enforcement of the Act and the regulations. The ALJ had no authority in this case to refuse to follow clearly applicable precedent from the Secretary or the court as enunciated in Mackowiak.² To paraphrase the D.C. Circuit when it chastised the NLRB for refusing to follow that court's rulings,

"[An ALJ] is not a court nor is [he] equal to [a] court [or the Secretary] in matters of statutory interpretation. Thus, a disagreement by an [ALJ] with a decision of [a court or the Secretary] is simply an academic exercise that possesses no aut oritative effect. It is in the court of appeals [and the Secretary] and not in an [ALJ] that Congress has vested the power and authority to enforce [the Act]." Yellow Taxi Co. of Minneapolis v. NLRB, 721 F.2d 366, 382 (1983), quoting from Allegheny General Hospital v. NLRB, 608 F.2d 965, 970 (3d Cir. 1979).

    The ALJ then held that, even assuming that internal complaints are protected activity, the respondent prevailed under the "dual motive" analysis of Mt. Health City School District Board of Education v. Doyle, 429 U.S. 274 (1977).³

    Under that analysis, he held that Pullman Power Products Corporation (Pullman) had met its burden of proof that Steven Lockert would have been fired even in the absence of such protected conduct. However, apparently because of his narrow view of the scope of protected activities under the Act, the ALJ gave only perfunctory consideration to the facts and circumstances surrounding Lockert's protected activity. In the Factual Background section of the Recommended Decision, all the protected activities were dismissed in just one paragraph without analysis, while the events which Pullman contends led to Lockert's dismissal were examined carefully and in detail. In Part 3 of the Legal Issues section, there is no discussion of the statements and actions of the parties in connection with the protected activity. There is only the conclusory statement that "[t]he evidence demonstrates that [responsible Pullman officials] fired complainant for the sole reason given and their credibility in this regard was unimpeached." Rec. Dec. P.11. In these circumstances, I think it is necessary to remand this case for the ALJ to carefully reconsider the record under the appropriate legal principles and submit a new recommended decision. Accordingly, this case is REMANDED for reconsideration in light of this decision.

       BILL BROCK
       Secretary of Labor

Dated: AUG 19 1985
Washington, D.C.

¹ Before reaching the protected activity question, the ALJ held that failure to complete the hearing and issue a Secretary's decision within the 90 day period provided in the statute (42 U.S.C. § 5851(f)) does not deprive the Secretary of jurisdiction. I adopt that conclusion. See Logan v. Zimmerman Brush Co., 455 U.S. 422 (1981).

² The Fifth Circuit's contrary conclusion in Brown & Root v. Donovan, 747 F.2d 1029 (5th Cir. 1984) of course had not yet been issued whether the ALJ decided this case, and even if it had, it would not justify refusal to follow clearly applicable precedent.

³ Application of that analysis to ERA cases by the Secretary was sustained by the court in Mackowiak, supra, 735 F.2d at 1164, and has been applied consistently by the Secretary since the decision in Dean Dartey v. Zack Company of Chicago, 82-ERA-2 (April 25, 1983).