Wensil v. B.F. Shaw Co., 86-ERA-15 (Sec'y Mar. 29, 1990)

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USDOL/OALJ Reporter
Wensil v. B.F. Shaw Co., 86-ERA-15 (Sec'y Mar. 29, 1990)

U.S. DEPARTMENT OF LABOR

SECRETARY OF LABOR
WASHINGTON, D.C.

DATE: March 29, 1990
CASE NO. 86-ERA-15

ROGER DALE WENSIL,
COMPLAINANT,

B.F. SHAW COMPANY,
SAVANNAH RIVER PLANT,
RESPONDENT.

CASE NO. 87-ERA-12

JOY P. ADAMS,
COMPLAINANT,

U.S. DEPARTMENT OF ENERGY,
E.I. DU PONT DE NEMOURS & COMPANY,
BLOUNT BROTHERS CORPORATION, AND
B.F. SHAW COMPANY,
RESPONDENTS.

CASE NOS. 87-ERA-45, 46

ROGER DALE WENSIL AND
JOY P. ADAMS,
COMPLAINANTS,

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DEPARTMENT OF ENERGY, AND DEPARTMENT OF ENERGY, OFFICE
OF INSPECTOR GENERAL,
RESPONDENTS.

CASE NO. 88-ERA-34

ROGER WENSIL,
COMPLAINANT,

UNITED STATES DEPARTMENT OF ENERGY;
ADMINISTRATOR, WAGE AND HOUR DIVISION,
UNITED STATES DEPARTMENT OF LABOR;
E.I. DU PONT DE NEMOURS & COMPANY;
BLOUNT BROTHERS; AND B.F. SHAW COMPANY,
RESPONDENTS.

BEFORE: THE SECRETARY OF LABOR

FINAL DECISION AND ORDER

QUESTION PRESENTED

The question presented in these cases is whether the employee protection provision of the Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C. § 5851 (1982), covers 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); or covers only employees of Nuclear Regulatory Commission licensees, license applicants, and their contractors and subcontractors. (For convenience, the first group will be referred to herein as "DOE-type employees," and the second group as "NRC-type employees.") The Administrative Law Judges (ALJs) who heard these cases below all held that the ERA only covers NRC-type employees, and they dismissed the complaints for lack of jurisdiction. ALJ Order Granting Motion to Dismiss in 86-ERA-15 at 2; ALJ Order Granting Motion to Dismiss in 87-ERA-12 at 8; ALJ Recommended Order of Dismissal in 87-ERA-45 and 87-ERA-46 at 3; ALJ Order of Dismissal in 88-ERA-34 at 6.¹

PROCEDURAL HISTORY

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On June 26, 1987, the Secretary of Labor issued an Order of Consolidation and New Briefing Schedule which consolidated 86- ERA-15 and 87-ERA-12 for purposes of review of the jurisdictional issue by the Secretary. The Order of Consolidation noted that all briefs submitted to the Secretary in 86-ERA-15 would be considered in review of 87-ERA-12, and granted each party an opportunity to file one additional brief on the jurisdictional issue. The Order of Consolidation also accepted a reply brief from Intervenor DOE in 87-ERA-12. In addition, I note that in 86-ERA-15, the Associate Solicitor for Fair Labor Standards, Office of the Solicitor of Labor, filed a Statement on Behalf of the Deputy Administrator, Wage and Hour Division, before the ALJ, and an amicus brief before me (Wage-Hour briefs). Complainants' cases numbered 87-ERA-45, 87-ERA-46, and 88-ERA-34 are consolidated before me with 86-ERA-15 and 87-ERA-12 for purposes of deciding the jurisdictional issue common to all five cases.² For the reasons discussed below, I agree with the ALJs' conclusions that no jurisdiction lies, and therefore dismiss these cases.

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).

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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. § 5814. The responsibilities of the AEC for licensing nuclear power plants were transferred to the NRC. 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).

COMPLAINANTS' ALLEGATIONS

Complainant Wensil and Complainant Adams each allege discharge by their employer, B.F. Shaw Company, from employment at the Savannah River Plant, a government-owned, contractor- operated (GOCO) plant which produces plutonium for the United States nuclear weapons program, in retaliation for protected activities.³ The Savannah River Plant was operated by E.I. Du Pont de Nemours & Company under contract with DOE. B.F. Shaw, a subsidiary of Blount Brothers, was a subcontractor of Du Pont.

PROVISION AT ISSUE

The employee protection provision, section 210, of the ERA provides:

(a) 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 . . .

(1) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter or the Atomic Energy Act of 1954, as amended . . . or a proceeding for the administration or

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enforcement of any requirement imposed under this chapter or the Atomic Energy Act of 1954, as amended;

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

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

(b)(1) Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of subsection (a) of this section may, within thirty days after such violation occurs, file (or have any person file on his behalf) a complaint with the Secretary of Labor (hereinafter in this subsection referred to as the "Secretary") alleging such discharge or discrimination. Upon receipt of such a complaint, the Secretary shall notify the person named in the complaint of the filing of the complaint and the Commission.

42 U.S.C. § 5851(a) and (b)(1).

DISCUSSION

As stated above, the question presented here is whether the "including" phrase is illustrative of a broad category of employers to be covered by this statute; or whether that phrase effectively defines the term "employer" and therefore narrows it to NRC licensees, license applicants, and their contractors and subcontractors. That the "including" phrase, without more, could mean either demonstrates that it is ambiguous, and thus that the relevant legislative history must be resorted to for an explanation of its meaning.

Accordingly, I have attempted to ascertain Congress' overall intent and purpose -- not by focusing narrowly on any words or

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phrases standing alone, but by analyzing the overall legislative events that resulted in the enactment of this provision. These events can be summarized as follows:

1. The legislative vehicle for this new whistleblower provision was an appropriations bill for the NRC alone (not DOE) for FY 1979.⁴

2. The provision in question was added to the last Section of Title II of the ERA, which deals solely with NRC (not DOE, which is the subject of Title I).

3. When Congress enacted this legislation in 1978

A. NRC, which licensed certain nuclear power facilities, and DOE [and its predecessor ERDA], which had no licensing authority over such facilities, had been separate statutory entities since 1974.

B. DOE had adopted its own internal whistleblower regulations, which also applied to employees of contractors at DOE/GOCO facilities. NRC had also adopted its own separate whistleblower regulation, but it covered only employers licensed by NRC (not license applicants, or their contractors and subcontractors). Thus, strengthening whistleblower protection and extending whistleblower protection to employees of contractors and subcontractors of NRC licensees and applicants would balance protections for NRC- type employees with those already existing for DOE-type employees.

C. The legislative history itself is meager. The portion of the Senate Report addressing the whistleblower provision, S. Rep. No. 848, 95th Cong., 2d Sess. 29-30, reprinted in 1978 U.S. Code Cong. & Admin. News 7303-7304, is not limited to NRC, but neither does it specifically mention DOE.

However, the subsequent House Conference Report -- the only document evincing the Conference Committee's intent -- states unambiguously that:

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The Senate bill amended the Energy Reorganization Act of 1974 to provide protection to employees of Commission licensees, applicants, contractors, or subcontractors from discharge or discrimination for taking part or assisting in administrative or legal proceedings of the Commission.

The House amendment contained no similar provision, and the conferees agreed to the senate provision.

H.P Conf. Rep. No. 1796, 95th Cong., 2d Sess., 16-17 (emphasis added).

D. There is no direct reference in any of the relevant legislative materials to inclusion of DOE or DOE/GOCO employees. However, there are numerous references to NRC and to NRC-type employees.

E. The protected activities itemized in the provision at issue are primarily (although not exclusively) "proceedings." The NRC conducts licensing and other regulatory proceedings. 42 U.S.C. § 5841(f); 10 CFR Part 2. No comparable proceedings are conducted by DOE with respect to its GOCO facilities. See 42 U.S.C. §§ 2140(b), 5842, excluding facilities under 42 U.S.C. § 2121 from licensing requirements.

Based on these legislative events and materials I must conclude that Congress sought to legislate with reference only to the NRC. Given the complex and well-known statutory history of energy regulation resulting in the bifurcation of DOE (primarily research, development and national defense) and NRC (primarily commercial power) licensed facilities and employees, and the obvious existence of thousands of DOE and DOE/GOCO employees, it seems to me inconceivable that Congress would have intended that this whistleblower provision should apply to DOE-type employees without once mentioning DOE or DOE/GOCO facilities or employees. That is, if Congress had intended DOE/GOCO coverage, surely it would have indicated that intent by mentioning DOE in some

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fashion, in addition to the numerous references to NRC. Yet no explicit DOE reference can be found in the relevant legislative materials.

It is not, therefore, surprising that DOE, the four Administrative Law Judges who have considered this provision to date, and the Associate Solicitor of Labor on behalf of the Wage and Hour Administrator have all concluded that this whistleblower provision does not apply to DOE/GOCO employees.

Nevertheless, Complainants argue that certain statutory anomalies suggest a broader jurisdictional interpretation.

Complainants argue that "including," given its plain meaning, is merely illustrative of a broader employer category. But Respondents counter that the doctrine of ejusdem generis mandates that the specific terms following "including," which refer only to NRC licensees, applicants, and their contractors and subcontractors, necessarily restrict the general "employer" term. As stated above, I believe that the entire whistleblower provision must be examined, and that an interpretation should be selected which harmonizes all pertinent subsections.

While subsections (a)(1) and (3) of the provision at issue refer to proceedings "under this chapter or the Atomic Energy Act of 195411 -- both of which cover both DOE and NRC -- subsection 210(b)(1) states that, following the filing of a whistleblower complaint:

[T]he Secretary [of Labor] shall notify the person named in the complaint of the filing of the complaint and the Commission.

(emphasis added.) Application of Complainants' proffered broad interpretation to DOE/GOCO employees would result in most cases in notifications to NRC of complaints against DOE -- an entirely separate agency. That interpretation would make little, if any, sense.

By contrast, the references to "this chapter" and to the Atomic Energy Act can be harmonized and rendered sensible, by interpreting them to mean simply that NRC-type employees can pursue claims based on substantive provisions of those energy statutes which apply to their NRC-related activities. Thus the narrower -- but not the broader -- jurisdictional interpretation can harmonize these superficially disparate provisions.

Other arguments of Complainants are summarized and dealt with adequately by ALJ James Guill in his opinion in Case No. 87-ERA-12, attached hereto, in whose reasoning I concur, for the most part.⁵ As Judge Guill notes, a narrow jurisdictional

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interpretation is not a result which is wholly free from doubt, and certainly the legislative language could be somewhat clearer. Nevertheless, taken as a whole the statute is directed towards employees of NRC licensees, license applicants, and their contractors and subcontractors. That interpretation harmonizes all relevant subsections, and it makes sense both historically and prospectively. The broader interpretation creates linguistic inconsistencies, leads to anomalous results, and would, I believe, involve a rewriting of the statute in a way which Congress never intended.

Finally, I am not unmindful of the fact that this ruling does not leave DOE/GOCO employees without protection or remedies. Indeed, the record reveals that Complainant Wensil was afforded reinstatement and Complainant Adams was offered reinstatement, as a result of the application of DOE's own whistleblower procedures to events comprising some of the claims in certain of these very cases. See n.3, supra.

ORDER

For these reasons, I hereby DISMISS the complaints in Cases Nos. 86-ERA-15, 87-ERA-12, 87-ERA-45 and 46, and 88-ERA-34 for lack of jurisdiction.

SO ORDERED.

ELIZABETH DOLE
Secretary of Labor Washington, D.C.

[ENDNOTES]

¹ The ALJs' decisions in 96-ERA-15, 86-ERA-12, and 88-ERA-34 are not entitled "Recommended Decision." However, under the regulations implementing the ERA, 29 C.F.R. Part 24 (1989), except in limited circumstances, see 29 C.F.R. § 24.5(e)(4), an ALJ's decision is only a recommended decision. Final orders are issued by the Secretary. 29 C.F.R. § 24.6.

In 88-ERA-34, the ALJ dismissed the complaint pursuant to 29 C.F.R. § 24.5(e)(4). In the circumstances of this case, relying on section 25.4(e)(4) was inappropriate. Subsection (e)(4) of 29 C.F.R. § 24.5 is labelled Dismissal for cause, and applies only to involuntary dismissals resulting from certain specified actions of a complainant or a complainant's representative which unnecessarily or unreasonably impede the conduct of the litigation, such as the failure to attend a hearing without good cause. 29 C.F.R. § 24.5(e)4(i)(A). That was not the case here, where Respondent sought dismissal for lack of jurisdiction. See Farinholt v. Virginia Power, Case No. 89- ERA-27, Sec. Order of Dismissal, Dec. 13, 1989, slip op. at 1-2; Stites v. Houston Lighting & Power Company, Case No. 87-ERA-41, Sec. Order of Dismissal, Sept. 29, slip op. at 2.

² The proceedings in 88-ERA-34 were stayed by my order of September 29, 1989, until the jurisdictional issue is decided.

³ In Cases Nos. 87-ERA-45 and 87-ERA-46, Complainants allege that the Department of Energy discriminated against them by withholding the Inspector General's report on the investigation of Mr. Wensil's discharge.

Respondent Du Pont states in its brief that, pursuant to an investigation by DOE, "Joy Adams was ordered reinstated with backpay of (sic) April 27, 1987 and has in fact, been offered backpay and reinstatement. Similarly, the Secretary of Energy has ordered Roger Wensil reinstated with backpay and Wensil has, in fact, been reinstated." Brief of Respondent E.I. Du Pont de Nemours & Company In the Matter of Joy P. Adams, Case No. 87-ERA- 12 at 3. In 88-ERA-34, Complainant Wensil alleges that on September 4, 1987, he was constructively discharged by Respondent B.F. Shaw, and that his request for relief was constructively denied by Respondent Wage and Hour Administrator.

⁴ Pub. L. No. 95-601, 92 Stat. 2951, "An Act to authorize appropriations to the Nuclear Regulatory Commission for fiscal year 1979, and for other purposes."

⁵ I have reached this conclusion based on my interpretation of the statute and its legislative history. I do 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.