I
[Page 6]
further conclude that the authorization to act must be examined within the context of the instant
complaint, otherwise a representative would have an unfettered, broad authority to act which is not
embodied in the plain language of the statutes. The record does not establish how, if at all, the
"listserv" activities may have inured to the benefit of any employee represented by
Complainant. Furthermore, he admits that he did not file the instant complaint on behalf of any
employee for whom he acts as a representative. Instead, Complainant relies upon his present and
previous representations of employees as a basis for his standing to file. I conclude from the foregoing
that Complainant has failed to provide evidentiary support for his assertion that he was an authorized
representative while engaged in participation of "listserv" activities.
Moreover, it has not been established that the alleged "protected"
activity (listserv participation) in which Complainant engaged was in furtherance of any Employer-
Respondent's compliance with the statutory intent of the SWDA or CERCLA. It is not clear whether an
employee representative's activity can be deemed "protected" if it relates to non-employment
related claims, as here. I conclude that it does not, since both the SWDA and CERCLA provide
discrimination protection "resulting from the administration or enforcement of the provisions of
this chapter [the statutes] or any applicable implementation plan." 42 U.S.C. § 6971(a) and
42 U.S.C. § 9610(a). Therefore, I find and conclude that Complainant's complaint is not based on
any Respondent's compliance vel non with issues arising under the environmental
statutes of SWDA and CERCLA.
Accordingly, for the reasons discussed above, I find and conclude Complainant has
not established that he has status or standing as an authorized representative to file and maintain a
complaint about non-employment matters (i.e., alleged moderation and blacklisting from
"listserv" participation for two days) under the auspices of the SWDA and CERCLA. I
further find that neither the SWDA or CERCLA were enacted to empower non-employee representatives
to file complaints on their own behalf regarding allegations of discrimination directed solely at
themselves.
Motions To Remand, To Preserve Evidence and for Full Discovery/Disclosure
For reasons stated in the "Order Denying Request for Remand and Scheduling
Telephone Hearing" dated June 28, 2000, Complainant's renewed Motion to Remand is
DENIED . There has been no showing of additional facts or law warranting a remand in this
matter.
Complainant's Motions To Preserve Evidence and for Full Discovery/Disclosure
are also DENIED. Neither motion provides any specificity of the evidence sought to be
preserved or discovered/disclosed. Moreover, since Complainant, in my view, has failed to establish
status/standing to file the instant complaint, he has failed to state a claim. Discovery is unnecessary when
a complainant has failed to state a claim since the necessary facts to do so are within complainant's own
personal knowledge. See Johnson v. Oak Ridge Operations Office , Case Nos. 1995-
CAA-20, 1995-CAA-21 and 1995-CAA-22 @ 9 (ARB Sept. 30, 1999).
[Page 7]
ORDER
For the foregoing reasons,
IT IS HEREBY ORDERED that Complainant's Complaint be
DISMISSED; and
IT IS FURTHER ORDERED that Complainant's Motions for Remand
to OSHA for further investigation, To Preserve Evidence and For Full Discovery/Disclosure be, and they
hereby are, DENIED.
ORDERED this 8th day of September, 2000, at Metairie, Louisiana.
LEE J. ROMERO, JR.
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 Ave., N.W., Washington, D.C. 20210. Such a petition for review must be
received by the Administrative Review Board within ten 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 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).
[ENDNOTES]
1 To the extent Ms. Melissa Woo and Mr. Jim
Dukelow are alleged as Respondents, they are hereby dismissed from this proceeding since, as individuals
they are not "employers" within the meaning of the alleged statutes forming the basis of the
instant complaint. Although certain statutory provisions reference the term "persons," the
plain language of these employee protection provisions suggest that they were intended to apply to
persons who are employers. See Varnadore v. Oak Ridge National Laboratory , Case
Nos. 92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996); Stephenson v.
National Aeronautics & Space Administration , Case No. 94-TSC-5 (Sec'y July 1, 1995).
2 Complainant also filed a Motion for
Appointment of Settlement Judge which was denied at hearing since Respondents did not consent to such
a process and in effect objected thereto. See 29 C.F.R. § 18.9(e)(2)(1).
3 Complainant has not alleged a violation
of the FWPCA in this matter.
4 The record does not support a finding
or conclusion that Complainant was so designated by any employee and notice thereof provided to any
Respondent.