DATE: August 9, 1989
CASE NO. 87-ERA-29

RONALD COWAN,
    COMPLAINANT,

    v.

BECHTEL CONSTRUCTION, INC.,
    RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

   Administrative Law Judge (ALJ) Alexander Karst submitted a Decision and order Granting Summary Judgment in this case arising under the employee protection provision of the Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C. § 5851 (1982). The ALJ held that the ERA covers only employees, not applicants for employment (including former employees). Because complainant was not an employees of Respondent at the time of the alleged discrimination, the ALJ held that the Department of Labor did not have subject matter jurisdiction of this case. He recommended that Respondent's Motion for Summary Judgment be granted.¹

   Complainant had been employed by Respondent as an electrician on several occasions from July, 1984, to April, 1987. After the first period of employment, Complainant filed a complaint under the ERA in February, 1985. That case was settled. Complainant was employed again by Respondent from August, 1986, to October, 1986, when Complainant was laid off. When Complainant applied for reemployement with Respondent in April, 1987, Respondent denied him employment allegedly because of previous poor performance. Complainant then filed the complaint in this case, alleging that the denial of reemployment was because of complaints he had made to the Nuclear Regulatory Commission.

   The ALJ reached his decision here with virtually no analysis of the statute, its legislative history, or controlling decisions of the Secretary.² In fact, there are several decisions of the Secretary that are directly on point here which hold that the ERA and other whistleblower statutes in 29 C.F.R. Part 24 may cover former employees. Indeed, the facts in of those those cases are substantially similar to the facts here.

   In Flanagan v. Bechtel Power Corp., Case No. 81-ERA-7, Decision of the Secretary issued June 27, 1986, a case arising under the ERA, the complainant was an electrician who had worked for Bechtel Power Corporation at various times prior to the date of alleged discrimination. When he applied for reemployment, Bechtel refused to rehire him. Complainant alleged that the refusal was in retaliation for his making safety complaints to the Nuclear Regulatory Commission. The threshold issue in Flanagan v. Bechtel Power Corp. was whether the ERA covers a former employee. The Secretary adopted the ALJ's conclusion and reasoning, holding that "the term 'employee' may include former employees." Slip op. at 9. The Secretary explicitly overruled King v. Tennessee Valley Authority, Case No. 80-ERA-1, Secretary's Decision issued May 20, 1980, and Greenwald v. The City of North Miami Beach, Case No. 78-SWDA-2, Secretary's Decision issued April 14, 1930. Id.

   Similarly, in Chase v. Buncombe County, N.C., Case No. 85-SWD-4, Secretary's Decision and Order of Remand issued November 3, 1986, the Secretary held that the employee protection provision of the Solid Waste Disposal Act, 42 U.S.C. § 6971(a) (1982), may cover former employees. Slip op. at 3-4. In that case, as here, the complainant applied for reemployment after the settlement of a previous complaint. Settlement of such a prior complaint does not, as urged by Respondent here, preclude litigation of an alleged separate and distinct act of discrimination after the settlement. See also Egenrieder v. Metropolitan Edison/G.P.U., Case No. 85-ERA-23, Secretary's Order of Remand issued April 20, 1987 (blacklisting a former employee for protected activities is prohibited under the ERA). See 29 C.F.R. §4.2(b) (1988).

   Accordingly, the ALJ's Recommended Decision and order Granting Summary Judgment is rejected and this case is REMANDED for further proceedings consistent with this order.

¹ The ALJ's decision is not entitled a "Recommended Decision." However, under the regulations implementing the ERA, 29 C.F.R. Part 24 (1988), 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. ² The Secretary, subject to judicial review, interprets the whistleblower statues and implementing regulations. It is incumbent on ALJ's therefore, to familiarize themselves with Secretarial decisions which are controlling to assure uniformity in like cases and therefore fairness to litigants. See Lockert v. Pullman Power Products Corp., 84-ERA-15, slip op. at 2-3, Secretary's Decision and Order issued August 19, 1985.