DATE: September 13, 1988
CASE NO. 86-SWD-1

IN THE MATTER OF

ROBERT J. FAULKNER,
    COMPLAINANT,

    v.

OLIN CORPORATION

    and

PETROCON, INC.,¹
    RESPONDENTS.

BEFORE: THE SECRETARY OF LABOR

   Before me for review is the order of Dismissal with Prejudice issued, on June 9, 1986, by Administrative Law Judge (ALJ) E. Earl Thomas in the above-captioned case, which arises under the employee protection provision of the Solid Waste Disposal Act (SWDA), 42 U.S.C. § 6971 (1982). The ALJ found that the issues raised by Complainant Faulkner in this case had already been raised in Robert J. Faulkner v. Olin Corporation, Case No. 85-SWD-3, in which a Final order was issued on November 18, 1985, holding that Complainant, who had a consulting agreement with Petrocon and who had been assigned by Petrocon to work at Olin Corporation, was an employee of Olin for purposes of the SWDA, and finding that Complainant had failed to establish that he was discharged or blacklisted in violation of section 6971 of the SWDA.²

   In a series of ten letters from Complainant to the Department of Labor between December 1, 1985 January 13, 1986, and in other documents filed by Complainant in this case, Complainant makes numerous allegations against Olin Corporation and Petrocon, Incorporated.³ The record before the ALJ has been carefully reviewed and all of Complainant's allegations have been thoroughly considered. All but one of the allegations within the purview of section 6971 of the SWDA were raised and adjudicated in Case No. 85-SWD-3. See ALJ's Recommended Decision of August 16, 1985. (R.D.)

   The allegations covered by section 6971 and previously adjudicated in Case No. 85-SWD-3 are (1) that Petrocon discharge Complainant because it

Complainant's response to ALJ's Order to Show Cause. The suit referred to is an action filed by Olin and Petrocon against Complainant in the District Court of Jefferson County, Texas for the return of certain documents belonging to Olin.⁴

   The texas court action against Complainant was filed on June 25, 1984, more than a month before Complainant filed his first written complaint on August 27, 1984,⁵ with the Department of Labor initiating the proceeding in Case No. 85-SWD-3. Complainant thus was well aware of the Texas suit when he filed his 1984 complaint of discrimination. He had appeared pro se and had testified at the temporary injunction hearing held in the Jefferson County court on June 28, 1984, just three days after the texas suit had been filed. However, the earliest mention in the instant record of Complainant's allegation that the filing of the Texas suit was retaliatory is Complainant's letter of December 4, 1985, a document written more than a year after the filing of the Texas suit and more than nine months after the Texas, court's permanent injunction against Complainant.⁶ The statutory period in which Section 6971 complaints must be filed is 30 days after the alleged violation has occurred, 42 U.S.C. § 6971(b), which in this case was 30 days after the filing of the texas suit by Olin and Petrocon. This period had long expired by the time Complainant filed his complaint letter of December 4, 1985. Complainant's allegation that Petrocon and Olin violated section 6971 by filing the Texas court action is, consequently, dismissed as untimely filed.⁷

   Since I find no violation of the SWDA, I am not directing any further action in this matter. Accordingly, the complaint in the above-captioned case is DISMISSED WITH PREJUDICE.

   SO ORDERED.

       ANN MCLAUGHLIN
       Secretary of Labor

Washington, D.C.

¹ The Administrative Law Judge, without any explanation, captioned this case as Robert J. Faulkner v. Olin Corporation. However, both the Wage and Hour Division, which conducted an initial investigation of Complainant's allegations, and the OALJ Case Tracking computer printout caption this case as Robert J. Faulkner v. Petrocon, Inc. Inasmuch as the complaint letters filed by Complainant allege violations by both Olin and Petrocon, inasmuch as the ALJ served his orders on counsel for Petrocon as well as on counsel for Olin and inasmuch as Complainant believed that both Olin and Petrocon were respondents in this case, see May 30, 1986, transcript at 10, in Olin Corporation and Petrocon, Inc. v. Engineering Service Co., Case No. E119926, 172nd District Court of Jefferson County Texas, it is proper that the case caption contain the names of both Olin and Petrocon.

² Complainant alleges that the instant case also involves violations of the Safe Drinking Water Act, 42 U.S.C. § 300j-9(i), the Water Pollution Control Act; 33 U.S.C. § 1367, the Toxic Substances Control Act, 15 U.S.C. § 2622, the Clean Air Act, 42 U.S.C. § 7622, and the Energy Reorganization Act of 1974, 42 U.S.C. § 5851. See Complainant's response of April 28, 1986 to ALJ's Order to Show Cause. Each of these provisions is similar to section 6971 of SWDA and prohibits discrimination against employees because of activity protected by the individual statute. There is nothing in the record presently before me, however, to indicate that these statutes are applicable here. Accordingly, review of Complainant's allegations is limited to section 6971 of the SWDA.

³ Only some of Complainant's allegations merit consideration under section 6971 of the SWDA. The allegations not considered are: that Complainant's discharge by Petrocon was wrongful since Complainant was found to be an employees of Olin; that Complainant is entitled to reinstatement and back pay since Olin has not yet formally discharged him; that Petrocon and Olin, in violation of 42 U.S.C. § 6928, are protecting Olin from governmental action for environmental violations by attempting to recover documents that Complainant removed from Olin files; that various Olin and Petrocon officials have protected Olin by not responding to Complainant's discharge by Petrocon; that Olin has violated 42 U.S.C. § 6928(d) by falsifying documents relating to hazardous wastes and withholding damaging information from the Environmental Protection Agency (EPA); that Respondents have violated laws of the State of Ohio; that Complainant is entitled to relief under the Fair Labor Standards Act; that EPA and the U.S. Department of Justice have failed to perform their duties and responsibilities in protecting Complainant in accordance with 42 U.S.C. § 6901; and that an order of the 172nd Judicial District Court of Texas prohibiting Complainant from distributing certain documents and disseminating certain information concerning Olin is in direct violation of 29 C.F.R. Part 24 and the statutes implemented by that regulation. See Complainant's letters to the Secretary of labor dated December 4, 12, 17 and 18 of 1985, and dated January 13 and October 15 of 1986. See also Complainant's response of April 28, 1986, to the ALJ's Order To Show Cause. These allegations raise matters which either are not within my jurisdiction or which do not involve activities protected under section 6791 and the implementing regulations at 29 C.F.R. Part 24 (1987). In his letter of October 15, 1986, Complainant also requests that I order the 172nd Judicial District Court to turn over its file in Case E 119926 to the U.S. Environmental Protection Agency and to the Ohio Attorney General. I am without authority to do so.

⁴ A final judgment, based on a compromise and settlement was issued by the Texas court, on February 19, 1985, permanently enjoining Complainant from retaining any Olin documents or disseminating any information concerning Olin and Petrocon to non-governmental entities. Subsequently, on June 13, 1986, the Texas Court issued an Order of Contempt against Complainant for failure to produce in court documents containing information concerning Olin or Petrocon. The information regarding the Texas court action has been ascertained from the court documents which have been submitted by Complainant or court documents of which I have taken official notice.

⁵Apparently, Faulkner had some telephone contact with the Department of Labor on June 8, 1984. See R.D. in Case No. 85-SWD-3 at 20.

⁶ Indeed this was also more than three months after the ALJ's R.D. in Case No. 85-SWD-3. Although there is reference in that decision to the Texas suit, see R.D. at 24, there is nothing in that decision to suggest that Complainant contended during that proceeding that the filing of the Texas suit was retaliatory.

⁷ In reaching this conclusion, I have carefully examined Complainant's letters of December 11th, 12th and 31st, 1985, to the Wage and Hour Division concerning the timeliness of the complaint in this case. It appears that the Wage and Hour Division concluded that the complaint was timely because Complainant had contacted the Federal Bureau of Investigation (FBI). These letters, while reflecting that Complaint contacted the FBI on April 17, 1984, regarding his discharge by Petrocon and the alleged safety violations by Olin, however, cannot establish that Complainant alleged to the FBI that Petrocon and Olin's suit against him was retaliatory since that suit had not yet been filed. Although it appears that subsequently the FBI became aware of the Texas suit, see transcript of September 11, 1984, hearing on Motion for Contempt in Case No. E119926, Complainant does not state that he made any such allegation to the FBI within the statutory period.