because the investigation of his complaint against those two respondents was not completed within 30 days and OSHA failed to conduct a proper investigation. On December 3, 2002, Cindy Coe Laseter, the OSHA Regional Administrator in Atlanta, Georgia, notified the Complainant that his complaint did not meet the prima facie requirements, and his complaint did not warrant a merit finding because OSHA did not meet the definition of an employer for the purposes of the statutes the Complainant identified. The Complainant was advised of his right to request a hearing before the Office of Administrative Law Judges and timely filed his request for a hearing.
On December 20, 2002, after the Complainant's request for hearing was assigned to me, I issued a Notice of Hearing and Prehearing Schedule which scheduled the hearing for February 24, 2003, in Phoenix, Arizona. I advised the parties that the hearing would only proceed as scheduled if I determined that there was a jurisdictional basis for the case to proceed to hearing. At the same time, I prepared an Order to Show Cause ordering the Complainant to show cause why this complaint should not be dismissed for lack of jurisdiction. The Order to Show Cause was issued December 30, 2002.
In my Order to Show Cause, I pointed out that whistleblower protection provisions found in 42 U.S.C. § 7622 of the Clean Air Act, 42 U.S.C. § 9610(a) of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §300j-9(i)(1) of the Safe Water Drinking Act, 42 U.S.C. § 6971 of the Solid Waste Disposal Act, 15 U.S.C. § 2622 of the Toxic Substances Control Act, and 33 U.S.C. §1367 of the Federal Water Pollution Control Act all prohibited retaliatory action from being taken against an employee by an employer or an individual acting on behalf of an employer. I noted that they contemplated that an employer-employee relationship exist between the respondent and alleged whistleblower. I ordered the Complainant to show cause why his complaint against OSHA should not be dismissed since there is no evidence that an employer-employee relationship exists between the Complainant and OSHA.
In response to my Order to Show Cause, the Complainant pointed out that under 42 U.S.C. § 9601(21) of CERCLA, the term "person" is specifically defined to include agencies of the Federal government. The Complainant also cites to Pogue v. U.S. Department of the Navy, Mare Island Naval Shipyard , Case No. 87-ERA-21 (May 10, 1990), in which the Secretary of Labor found that employees of the Federal government were also covered by the whistleblower protection provisions of CERCLA. The Complainant argues that there are similar provisions in the SDWA which specifically include agencies of the Federal government under its coverage.
The Respondent responded to the Complainant's response to the Order to Show Cause and asserted that OSHA is not, and has never been, the Complainant's employer. The Respondent urgeD that this complaint be dismissed for lack of jurisdiction.
OSHA Is Not A Covered Employer
The Complainant correctly argues that CERCLA defines "person" at 42 U.S.C. §9601(21) to include the United States government and its agencies. There is similar language found in the definition section of the Clean Air Act at 42 U.S.C. § 7602(e). He also correctly argues that the Secretary decided in Pogue v. U.S. Department of the Navy, Mare Island Naval Shipyard , that the Department of the Navy was a covered employer under CERCLA.
Federal agencies were included in the definition of "person" under the whistleblower provisions to ensure that the whistleblower protections of these statutes would extend to Federal employees. There must still be an employer-employee relationship between an alleged whistleblower and the Federal agency in question before the protections of the whistleblower protections extend to the alleged whistleblower. In Pogue , the Secretary found that the Department of the Navy was covered by CERCLA because the complainant in that case was employed by the Department of the Navy. No employer-employee relationship ever existed between the Complainant and OSHA.
CONCLUSION There is no jurisdiction to consider the Complainant's complaint against the Occupational Safety and Health Administration.
RECOMMENDED DECISION AND ORDER I recommend that this complaint against the Occupational Safety and Health Administration be DISMISSED for lack of jurisdiction.
SO ORDERED:
JENNIFER GEE
Administrative Law Judge
NOTICE
This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, D.C. 20210. Such a petition for review must be received by the Administrative Review Board within ten (10) business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. § 24.8 (2000).
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