Hill v. Tennessee Valley Authority, 87-ERA-23 (Sec'y May 24, 1989)

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USDOL/OALJ Reporter
Hill v. Tennessee Valley Authority, 87-ERA-23 and 24 (Sec'y May 24, 1989)

U.S. DEPARTMENT OF LABOR

SECRETARY OF LABOR WASHINGTON, D.C.

DATE: May 24, 1989
87-ERA-23
87-ERA-24

IN THE MATTER OF

CHARLES HILL, ET AL.,
COMPLAINANTS,

TENNESSEE VALLEY AUTHORITY
RESPONDENT.

IN THE MATTER OF

EDNA OTTNEY,
COMPLAINANT,

TENNESSEE VALLEY AUTHORITY,
RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

DECISION AND ORDER OF REMAND

In these cases arising under the employee protection provision of the Energy Reorganization Act of 1974, as amended, 42 U.S.C. § 5851 (1982) (ERA or Act), the Administrative Law Judge (ALJ) below has recommended that the complaints be dismissed because complainants were not employees of Respondent and therefore not protected by the ERA. I find that, under the specific facts and circumstances presented here, complainants may pursue their claims under the ERA against Respondent Tennessee Valley Authority (TVA). These cases will therefore be remanded to the ALJ for further proceedings consistent with this decision.

Complainants are 24 former employees of the Quality

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Technology Company (QTC). QTC had a contract with Respondent TVA, a licensee of the Nuclear Regulatory commission (NRC), to develop and implement a program for the identification, investigation and reporting of Respondent's employees' concerns about quality and safety issues at nuclear power plants under construction for Respondent. Complainants allege that Respondent violated the ERA when it significantly restricted the scope of the QTC contract and then refused to renegotiate the contract, causing termination of complainants' employment, in retaliation for complainants' investigation, corroboration and disclosure of safety problems in TVA's nuclear power program.

The ALJ held that the ERA "clearly require[s] that an employer-employee relationship exist between the parties before the prohibition against discrimination by an employer against an employee can be enforced under the ERA." Recommended order (R.O.) at 2. I do not agree that the language of the Act ineluctably requires that conclusion.

Section 5851(a) provides in pertinent part that "[n]o employer . . . may discharge any employee or otherwise discriminate against an employee . . . . " (Emphasis added.)¹ It is not limited in terms to discharges or discrimination against any specific employer's employees, nor to "his" or "its", employees. Compare, e.g.: 29 U.S.C. § 158(a)(4) (1982, ("It shall be an unfair labor practice for an employer . . . (4) to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this subchapter"), with 29 U. S. C. § 158 (a) (5) (to refuse to bargain collectively with the representatives of his employees . . . ") (emphasis added) . Moreover, Section 5851(b) permits the filing of a complaint by "any employee, who believes he has been discriminated against by any person" in violation of subsection (a). Congress' use of the more generalized employee references in the ERA evinces an intent to extend its whistleblower protection here. See N.L.R.B. v. Scrivener, 405 U.S. 117, 122 (1972).

Further, Courts have construed and applied the ERA broadly to effectuate its remedial purposes. Kansas Gas & Electric Co. v. Brock, 780 F.2d 1505, 1512 (10the Cir. 1985) ("a narrow, hypertechnical reading of [the ERA] will do little to effect the statute's aim of protection"); Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159, 1163 (9th Cir. 1984) (the ERA and

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similar provisions "share a broad, remedial purpose of protecting workers from retaliation based on concerns for safety and quality"). Failure to construe the ERA to protect these employees of contractors engaged in investigation, corroborating and disclosure of safety concerns would frustrate that remedial purpose.

In the nuclear power industry, given the magnitude of potential hazards to employee and public safety and health, is an especially compelling need to keep open the channels communication regarding potential safety and quality violations "If employees are coerced and intimidated into remaining silent when they should speak out, the results can be catastrophic. Rose v. Secretary of Labor, 800 F.2d 563, 565 (6th Cir. 1986 (Edwards, J., concurring). These on-site employees of a contractor, whose responsibility is identifying, investigating and reporting safety complaints to the licensee, can be an important source of information regarding nuclear plant safety. Indeed, the NRC Regulations specifically contemplate that licensees, while retaining ultimate responsibility for safety and quality assurance, "may delegate to others, such as contractors, agents, or consultants, the work of establishing and executing the quality assurance program." 10 C.F.R. Part 50, App. B Criterion I. (1988).

Application of the ERA to the instant claims is further supported by the legislative history describing the ERA whistleblower provision as "provid[ing] protection to employees of commission licensees, applicants, contractors, or subcontractors" who pursue quality and safety investigations and complaints. H.R. Conf. Rep. No. 95-1796, 95th Cong., 2d Sess. 16 (1978), reprinted in [1978] U.S. Code Cong. & Admin. News 7304, 7309.

This application of the Act is also consistent with the Secretary of Labor's interpretation by regulation of closely parallel language in another antiretaliation provision administered by the Department, Section 11(c) of Occupational Safety and Health Act of 1970, 29 U.S.C. § 660(c) (1981) providing that:

(1) No person shall discharge or in any manner discriminate against any employee because such employee

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has filed any complaint or instituted or caused to be instituted any proceeding under or related to (OSHA) or has testified or is about to testify in any such proceeding . . .

(2) Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of this subsection may . . . file a complaint with the Secretary . . . . [Emphasis added.]

The Department's regulations interpreting that Section provide that "because section 11(c) speaks in terms of any employee, it is also clear that the employee need not be an employee of the discriminator." 29 C.F.R. § 1977.5(b) (1988).

The ALJ below acknowledged that "[c]ases decided under the [National Labor Relations Act] constitute a substantial body of law which should be examined when determining who is an employee or employer within the meaning of the ERA." R.O. at 3. Indeed, as the ALJ noted, the legislative history of the ERA explicitly states that the ERA employee protection provision is "patterned after the National Labor Management Act [sic] . . . ." S. Rep. No. 95-848, 95th Cong., 2nd Sess. 29, reprinted in (1978) U.S. Code Cong. and Admin. News 7303. The ALJ, however, focussed only on NLRA cases applying the "right-to-control" test, R.O. at 3-4, and the "joint employer" test, R.O. at 6. He did not consider other language in the NLRA and its interpretative case law which is also applicable to the instant situation.² I also conclude that the cases cited by Respondent purportedly distinguishing an employee from an independent contractor are not controlling here.

Although the ERA contains no separate definition of "employee", the NLRA, after which the ERA was patterned, defines "employee" as "any employee, and shall not be limited to the employees of a particular employer, unless . . . stated otherwise . . of 29 U.S.C. § 152 (1982). The Supreme Court has long recognized that "[t]he broad [NLRA] definition of 'employee'. expressed the conviction of Congress 'that disputes may arise regardless of the proximate relation of employer and employee, [...],' H.R. Rep. No. 1147, 74th Cong., 1st Sess., p. 9 . . . ." Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177, 192 (1941). The Court reiterated this view in Hudgens v. N.L.R.B., 424 U.S. 507 (1976), noting with approval the NLRB's

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interpretation of the NLRA that "a statutory 'employer' may violate § 8(a)(1) with respect to employees other than his own. See Austin Co., 101 N.L.R.B. 1257, 1258-1259 . . . ." 424 U.S. at 510, n.3.

Other courts have taken a similar view. For example, a ban which owned a fifty story office building told picketers outside a restaurant, occupying leased space on the 46th floor, to leave the building and threatened them with arrest. The Ninth Circuit held that the bank was an employer and had committed an unfair labor practice under the NLRA, even though it was not the employer of the picketers of the restaurant. Seattle-First National Bank v.. N.L.R.B., 651 F.2d 1272, 1273, n.2 (9th Cir. 1980).

Similarly, under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § § 2000e-2000e-19 (1982), which for purposes of defining an "employer" has been held to be patterned after the NLRA, Armbruster v. Quinn, 711 F.2d 1332, 1336 (6th Cir. 1983), the courts have held that an individual is protected from discrimination by a covered employer who is not the individuals employer. For example, in Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C. Cir. 1973), the court focussed on two phrases in Title VII with similar counterparts in the ERA and held that, giving them their "ordinary meaning," 488 F.2d at 1341, "relief may be available . . . against respondents who are neither actual nor potential direct employers of complainants, but who control access to such employment and who deny such access by reference to invidious criteria." Id. at 1342. The court said

The Act defines "employee" as 'an individual employed by an employer', but nowhere are there words of limitation that restrict references in the Act to "any individual" [For example, in section 703(a)(1) of Title VII making it an unlawful employment practice "otherwise to discriminate against any individual . . . . " 42 U. S. C. § 2000-3 (a)(1).] as comprehending only an employee of an employer . . . Those words should therefore, be given their ordinary meaning so long as that meaning does not conflict with the manifest policy of the Act.

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488 F.2d at 1341. Similarly, section 5851(a) of the ERA prohibits discrimination against "any employee" without words of limitation, and section 5851(b) permits the filing of a complaint by "any employee" against "any person" whom he believes has discriminated against him.

The Court of Appeals in Sibley held that a hospital discriminated against a male private duty nurse, not an employee of the hospital, by refusing to refer him to female patients requesting a private nurse. The Court of Appeals noted that, even though the parties "did not contemplate any immediate or future relationship of direct employment in the sense of the usual indicia of such employment . . . . ", 488 F.2d at 1342, interference with the employment relationship between the nurse and the patients could constitute a violation of Title VII. Id. "To permit a covered employer to exploit circumstances peculiarly affording it the capability of discriminatorily interfering with an individual's employment opportunities with another employer, while it could not do so with respect to employment in its own service, would be to condone continued use of the very criteria for employment that Congress has prohibited." Id. at 1341. Similarly here, I believe that my interpretation of the ERA in this case will further the Congressional purpose of protecting whistleblowers so that safety and quality problems in nuclear power plants will continue to be brought to light and resolved before accidents or injuries occur.

I also note that the Secretary of Labor has held that applicants for employment and former employees are protected from discrimination by their prospective and former employers, although no employer-employee relationship existed at the time of the alleged discrimination. See Flanagan v. Bechtel Power Corp., Case No. 61-ERA-7, Secretary's Decision issued June 27, 1986; Egenrieder v. Metropolitan Edison Co., Case No. 85-ERA-23, Secretary's Order issued April 20, 1987.

I hold, therefore, under the specific facts and circumstances of this case, that these Complainants, who allegedly engaged in these hazard investigation and disclosure activities, may file these claims against Respondent.³ Of course, it will be Complainants' burden to prove on remand that any unlawful discrimination actually occurred in connection with

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TVA's restriction and subsequent refusal to negotiate the contract with QTC.

TIMELINESS

Respondent TVA asserts as an independent basis for dismissal that the complaints here were untimely filed. Complainants moved to strike those portions of Respondents' brief and of an attached affidavit which raised the issue of timeliness. I will treat that motion simply as additional argument before me on Complainants' behalf.

In her original complaint, Complainant Edna Ottney alleged that she was unaware of any retaliatory motive underlying Respondent's actions complained of in this case until October 11, 1986. Complainant's attorney, by cover letter dated October 24 1986, transmitting her complaint to the Wage and Hour Administration of the Department of Labor, explicitly requested on Complainant's behalf that the 30-day time limit for filing ERA complaints be tolled. I note that the ALJ held no hearing on this (or any other) issue, and thus Complainants had no opportunity to prove facts which might support a claim of equitable tolling. See School District of the City of Allentown v. Marshall, 657 F.2d 16, 19 (3d Cir. 1981); In the Matter of Charles Kent, Case No. 84-WPC-2, Secretary's Decision issued March 31, 1988; Hicks v. Colonial Motor Freight Lines, Case No 84-STA-20, Secretary's Decision issued December 10, 1985. Finally, the ALJ did not consider and did not make a recommendation on the issue of timeliness.

In these circumstances, I do not think it would be appropriate for me to rule on this timeliness issue at this time, on remand, complainants will have the burden of proving that the facts justify application of the doctrine of equitable tolling Allentown v. Marshall, 657 F.2d 16, 19-20.

Accordingly, this matter is REMANDED to Administrative Law Judge John M. Vittone for further proceedings consistent with this order.

SO ORDERED.

ELIZABETH DOLE
Secretary of Labor

Washington, D.C.

[ENDNOTES]

¹ Section 5851 provides:

(a) Discrimination against employee

No employer, including a Commission licensee, an applicant for a Commission license, or a contractor or a 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 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 chapter or the Atomic Energy Act of 1954, as amended or a proceeding for the administration or enforcement of any requirement imposed under this chapter or the Atomic Energy At 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 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) Complaint, filing and notification

(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 . . .file . . .a complaint with the Secretary . . . .

² If Complainants were found to be constructive employees of Respondent under either the right-to-control or the joint employer test, of course, there would be no question of their right to complain of alleged discrimination against then. However, it is not necessary for me to consider the applicability of these tests, having concluded that Complainants may assert their claims in these circumstances based on my construction and application of the Act.

³ This ruling is limited to the narrow facts and circumstances here presented. There is no occasion here to decide whether other employees, differently situated, could seek the Act's protection from alleged discrimination.