Buncombe County, N.C.
Department of Community
Improvement
DECISION AND ORDER OF REMAND
This is a proceeding arising under the employee protection
(whistleblower) provision of the Solid Waste Disposal Act (SWDA),
42 U.S.C. § 6971 (a) (1982).
Complainant Chase initially filed a complaint against
Buncombe County, N.C., Department of Community Improvement
(County), alleging that he was terminated from his employment
in violation of the SWDA. Subsequently, on December 20, 1984,
the parties executed a settlement agreement, and, on the basis
of that agreement, Administrative Law Judge (ALJ) John C. Bradley
dismissed the complaint with prejudice. Order Approving Settlement
Agreement, December 28, 1984. Later, when his former position
became vacant, Complainant applied for it but was not
rehired. As a result, Complainant filed a second complaint in
which he alleged that the failure to rehire him was the result
of discrimination due to his previous safety complaints and
constituted a violation of the settlement agreement.
Prior to a hearing on the merits of the second complaint,
ALJ Bradley issued an order to show cause as to why the complaint
should not be dismissed for lack of jurisdiction and for failure
to state a claim upon which relief might be granted. After
receiving Complainant's response to this order, the ALJ dismissed
the second complaint for lack of jurisdiction and failure to
state a claim. Specifically, the ALJ found that: (1) Complainant
had conceded a lack of jurisdiction by admitting that he was
not an employee at the time he applied for rehire; (2) the
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settlement agreement did not provide for Complainant's reinstatement
and, therefore, the failure to rehire was not a violation
of that agreement; and; (3) other alleged violations of the
settlement agreement could not be addressed since they had not
been included in the second complaint. Order of Dismissal,
August 30, 1985.
This matter is now before me for decision. After review
of the record, I have concluded that I cannot accept the ALJ's
recommendation that the second complaint be dismissed.
The ALJ erred in ruling that section 6971(a) of the SWDA
only protects current employees of a covered employer. I
recently held that the term "employee" in a similar whistleblower
provision of the Energy Reorganization Act (ERA), 42 U.S.C. §
5851 (1981), includes former employees. Flanagan v. Bechtel
Power Corporation, 81-ERA-7, issued June 27, 1986. The SWDA,
like the ERA, does not define "employee". I find nothing in
the wording of either statute nor in their legislative histories
which suggests any basis for interpreting "employee" differently
in the SWD than in the ERA.
The ALJ based his conclusion on a narrow interpretion of
the term "employee". As noted in Flanagan, slip op. at 6-7,
such a narrow interpretation does not comport with 29 C.F.R.
Part 24 (1985), the regulation implementing the SWDA, the ERA
and other whistleblower statutes. That regulation, specifically
section 24.2(b), identifies "blacklisting' as an activity
prohibited under the whistleblower statutes; and "blacklisting"
in the labor context is not a term applied to action taken by
an employer against his current employees. The inclusion of
"blacklisting" in the regulation when originally drafted,
45 Fed. Reg. 1,836 (1980), indicates that the term "employee"
has not been read so literally as to be limited to current
employees. It has been recognized that regulations promulgated
by the Federal agency authorized to enforce the statute are
"persuasive authority as to the proper interpretation" of that
statute. Butler v. McDonnell - Douglas Saudi Arabia Corp.,
93 F.R.D. 384 (S.D. Ohio 1981).
Applying a broad interpretation of "employee" to include
former employees is consistent with the interpretation by the
United States Courts of Appeals of this term as used in similar
provisions of other statutes. See Dunlop v. Carriage Carpet
Company, 548 F.2d 139 (6th Cir. 1977) (Fair Labor Standards
Act); Rutherford v. American Bank of Commerce, 565 F.2d 1162
(10th Cir. 1977) (Title VII of the Civil Rights Act of 1964);
N.L.R.B. v. Whitfield Pickle Company, 374 F.2d 576 (5th Cir.
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1967) (National Labor Relations Act). These cases hold that
a broad interpretation of "employee" is necessary in order
to carry out the statutory purpose.
Here, too, a broad interpretation of "employee" is
necessary in order to give full effect to the purpose of section
6791(a), which is to encourage the reporting of violations of
solid waste disposal requirements by prohibiting discrimination
arising out of the employment relationship. Protecting the
reporting employee against retaliation only while that employee
is in the employ of the violator has a "chilling effect" and
discourages, rather than encourages, the reporting of safety
violations. For the foregoing reasons, I conclude that section
6971(a) of the SWDA may apply to former employees as well as to
current employees of covered employers. I find that section
6971(a) applies to the facts alleged in complaint in this
case.
Since jurisdiction under the SWDA exists, I remand this
case to the ALJ for the purpose of holding a hearing and
permitting Complainant the opportunity to prove that the County's
refusal to rehire him was violative of section 6971(a) of the
Act.
1 Complainant obviously believed
that he did not have a valid
claim of discrimination under the statute because he was no
longer an employee of the County. After conceding that he was
no longer an employee of the County, Complainant states that, "I
never intended that my request for relief be treated as a fresh
discrimination complaint, because I don't believe that even my
most creative and wishful reading of SWDA would give me a case."
Complainant's pleading of August 14, 1985, at 1.
2 The ALJ's entire discussion of
this issue is as follows:
"Complainant's response also refers to other alleged violations
of the settlement agreement by Respondent unrelated to the violation
were not a part of his second complaint, and, therefore, cannot
be addressed in this Order." Order of Dismissal, August 30,
1985, at 2. I do not adopt this finding.
