U.S. Department of Labor
Office of Administrative Law Judges
Suite 201
55 West Queens Way
Hampton, Virginia 23669
804-722-0571
DATE: March 19, 1987
CASE NO. 87-ERA-12
IN THE MATTER OF
JOY P. ADAMS,
Complainant,
v.
U.S. DEPARTMENT OF ENERGY,
E.I. du PONT de NEMOURS & COMPANY,
BLOUNT BROTHERS CORPORATION, AND
B.F. SHAW COMPANY
Respondents.
ORDER GRANTING MOTION TO DISMISS
On January 5, 1987 Joy P. Adams, Complainant, filed a complaint against
the U. S. Department of Energy, DOE, E.I. du Pont de Nemours & Company, Du
Pont, Blount Brothers, Blount and B.F. Shaw, Shaw, collectively known as
Respondents, alleging that she had been discriminatorily discharged in
violation of the Energy Reorganization Act of 1974 (the Act), 42 U.S.C. §
5851. Each Respondent filed a motion for dismissal of the complaint alleging
lack of jurisdiction by the Department of Labor, DOL.
This complaint arises out of Complainant's employment at the Savannah
River Plant (SRP), a nuclear fuel processing facility, located in Aiken,
Barnwell and Allendale counties, South Carolina. Du Pont operates SRP under
contract with DOE, its owner. Shaw is a subcontractor for Du Pont and a
subsiduary of Blount. Neither DOE, nor the contractor or subcontractors at
the SRP are required to apply for or receive a license from the Nuclear
Regulatory Commission (NRC).
Complainant was hired by Shaw in September 1984. On December 6,
1985 she was interviewed by a DOE investigative committee regarding a safety
discrimination complaint filed by Roger Wensil, another Shaw employee.
[Page 2]
Complainant's employment was terminated by Shaw on December 31, 1986.
Thereafter she filed this complaint with the Department of Labor's Wage and
Hour Division alleging that her discharge was in retaliation for her support
of Wensil and her participation in the DOE investigation. Richard Robinette,
Assistant Regional Administrator for the Wage and Hour Division, informed
Complainant that DOL lacked jurisdiction at SRP. Complainant then filed this
appeal on January 8, 1987.
Respondents filed their respective motions to dismiss this complaint
alleging that § 210 of the Act 42 U.S.C. § 5851 (section 210) applies only
to employers at nuclear power plants which are NRC licensees, or applicants
for a NRC license, and contractors or subcontractors of such licensees or
applicants.
Section 210 of the Act provides in pertinent part:
(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,
term, conditions, or privileges of employment because the employee
(or any person acting pursuant to a request of the employee)-
(1) commenced, caused to be commenced, or is about to commence or
cause to be commenced a 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 such proceeding or;
(3) assisted or participated or is about to assist or participate in any
manner in such a proceeding or in any manner in such a proceeding or
in any action to carry out the purposes of this Act 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) may, within thirty days after such violation occurs, file (or
have any person file on his behalf) a complaint with the Secretary
of Labor . . . 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 complained and the
[Nuclear Regulatory] Commission.
[Page 3]
Pub. L. 95-601, codified at 42 U.S.C. § 5851 (hereinafter referred to as
"section 210").
The operative question herein is whether the inclusive portion of the
status requires the employer to be an NRC licensee or applicant, or a
contractor or subcontractor of such; or whether the "including" phrase is
illustrative and the section applies to all employers, regardless of their
status as licensee or applicant.
Complainant argues that the meaning of "including" is
unambiguous, and it
should be given its plain meaning. Respondents do not agree. Given the
numerous citations for explaining the meaning of "including", its meaning is
apparent only after review of case law, legislative history and consideration
of its application to GOCO1 and NRC
employees.
No licensee shall discharge or in any manner discriminate against
any worker because . . .
3 The AEC Manual, Immediate
Action Directive No. 6504-33, pg. 11 (December 20, 1973) contains in pertinent part:
Nondiscrimination
No contractor shall discharge or in any manner discriminate against any
any employee. . .
4 The ERDA Manual Chapter
0506 provides in pertinent part that:
Part VI
NONDISCRIMINATION
1. No contractor shall discharge or in any manner discriminate against
any employee by virtue of the filing of a complaint, or in any other
fashion, exercising on behalf of himself or herself or others any right
set forth in Chapter 0506 and its appendix.
2. Any employee who believes he or she has been discharged or otherwise
discriminated against in violation of this part may file a complaint
within 30 days after the alleged discrimination, with the ERDA contract
administrator setting forth the nature of the alleged discrimination.
ERDA shall investigate such complaint, and if it is found that such
discrimination has occurred, an order shall be issued for appropriate
relief including rehiring or reinstatement of the employee, restoration
of lost seniority, and back pay. ERDA shall report the determination of
the matter to the employee filing the complaint of alleged
discrimination, within 90 days after its receipt.
1. No contractor shall discharge or in any manner discriminate against
fashion, exercising on behalf of himself or herself or others any right
set forth in this Order and its chapters.
2. Any employee who believes he or she has been discharged or otherwise
discriminated against in violation of this part my file a complaint
within 30 days after the alleged discrimination, with the DOE contract
administrator setting forth the nature of the alleged discrimination. DOE
shall investigate such complaint, and if it is found that such
discrimination has occurred, an order shall be issued for appropriate
relief including rehiring or reinstatement of the employee, restoration
of lost seniority, and back pay. DOE shall report the determination of
the matter to the employee filing the complaint of alleged discrimination
within 90 days after its receipt.
3. The forms required to be posted by this part shall be posted in a
sufficient number of places to permit employees working in or frequenting
any portion of the facility to observe a copy on the way to or from their
place of employment.
DOE Order 5483.1 was slightly modified on June 22, 1983 and
September 10, 1984 and is now known as DOE Order 5483.1A. See DOE Order SR 5483.1A
(September 10, 1983).
6 Section 210 lists licensees,
applicants, and contractors or subcontractors of licensees or applicant. Not mentioned are
contractors of government facilities.