DATE: September 29, 1989
CASE NO. 85-ERA-37

IN THE MATTER OF

CYNTHIA HALE,
    COMPLAINANT,

    v.

BALDWIN ASSOCIATES,
    RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

    Administrative Law Judge (ALJ) Lawrence E. Gray submitted a Recommended Decision and Order (R.D. and O.) in this case which arises under the employee protection provision of the Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C. SS 5851 (1982). The ALJ recommended that the case be dismissed because Complainant did not prove that her discharge was in retaliation for protected activity.

    The record in this case has been thoroughly reviewed and it fully supports the ALJ's careful and detailed recommended

decision.¹

    Accordingly, I adopt to ALJ's recommended decision and the complaint in this case IS DISMISSED.

    SO ORDERED.

       ELIZABETH DOLE
       Secretary of Labor

Washington, D.C.

¹The ALJ, analyzing the evidence in accord with Darty v. Zack Co. of Chicago, Case No. 82-EPA-2, Sec. Decision, April 25, 1983, found that Complainant's involvement in certain statutorily protected activities played no part in Respondent's decision to discharge her. Based upon the review of the record, I agree.

The ALJ also questioned whether the requirement that the employee had engaged in protected conduct, which was one of the elements of a prima facie case under the ERA set forth in Dartey v. Zack Co. of Chicago, was in accord with the statute. R.D. and O. at 16. "Protected conduct" or "protected activity" is an essential element of any whistleblower or retaliatory discharge case. See Mt. Healthy City School District v. Doyle, 429 U.S. 274, 287 (1977); Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159, 1163 (9th Cir. 1984). As indicated in Francis v. Bogan, Inc., Case No. 86-ERA-8, Sec. Decision, April 1, 1988, an employee who is "about" to file a complaint with the Nuclear Regulatory Commission may be protected under the ERA, depending upon the particular facts and circumstances of the case. For example, making an explicit threat to go to the NRC, or filing an internal complaint with the implication that it would be followed by a complaint to the NRC, may be themselves 'protected activities' under the Act and the Secretary's decision.

I would note that, until the decision in Francis v. Bogan was issued, the ALJ's decision there (cited by the ALJ in this case, R.D. and O. at 17) was only a recommended decision and had no precedential value of its own.