On April 19, 2000, Mr. Edward A. Slavin, Jr. filed a complaint with the Occupational Safety & Health Administration (OSHA) against Pacific Northwest National Laboratory (PNNL), Battelle Memorial Institute (BMI), the U.S. Department of Energy (DOE), and the University of Illinois at Champagne-Urbana (UOI) alleging a violation of the employee protection provisions of the Energy Reorganization Act (ERA); the Toxic Substances Control Act (TSCA); the Solid Waste Disposal Act (SWDA); the Safe Drinking Water Act (SDWA); the Clean Air Act (CAA); and the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA).

   Complainant's complaint alleges that in retaliation to his "truthful postings" on "listservs" known as "Risk Analysis" (RISKANAL) and "Radiation Safety" (RADSAFE), PNNL and BMI instituted "moderation" "affecting only one person, Complainant" on April 18, 2000. UOI is alleged to have banned and blacklisted Complainant from "RADSAFE" in "retaliation for his environmental protected activity" on April 8, 2000. Complainant alleges his defense of sick workers and whistleblowers on the listservs was "truthful, constructive and protected activity," the latter "touching their concerns about DOE environmental clean-up operations protected by the environmental statutes" SWDA and CERCLA, inter alia. Mr. Slavin further alleged that while he was not an employee of the above-named organizations, these actions were taken against him as an employee representative of whistleblowers.

   On May 26, 2000, OSHA dismissed the instant complaint concluding that the "activities described" did not qualify Mr. Slavin as an employee or authorized representative. The Regional Administrator concluded that the SDWA, CAA, TSCA and ERA do not extend coverage to an employee representative. Moreover, it was decided that although SWDA and CERCLA do provide protection to an employee representative, Mr. Slavin was not retained by any PNNL, BMI or DOE employee as their authorized representative in a protected activity under SWDA and CERCLA against such organizations. Furthermore, it was concluded that "acting as an advocate for employee whistleblower rights is not considered activity protected under SWDA or CERCLA. See Anderson v. Metro Wastewater Reclamation District, Case No. 97-SDW-7 (ALJ Feb. 19, 1998). On June 5, 2000, Mr. Slavin requested a hearing on his complaint.

   On June 28, 2000, after an all-party conference call and briefings, the undersigned issued an "Order Denying Request for Remand and Scheduling Telephone Hearing," finding that a remand to OSHA for further investigation was unwarranted since an investigation within the meaning of 29 C.F.R. § 24.7(b) was conducted by the Regional Administrator.

   On August 11, 2000, a telephonic hearing to gather evidence on the limited and bifurcated issue of Mr. Slavin's status/standing to file the instant complaint was commenced with the captioned parties during which Complainant was sworn and testified about his status and standing to file the complaint against Respondents. The hearing was adjourned until August 21, 2000, at the request of BMI to present evidence on the employee status of two whistleblower complainants represented by Mr. Edward Slavin. The telephonic record was closed on August 21, 2000, with briefs due on August 28, 2000.

The Testimony of Complainant

   During the telephonic hearing, Complainant testified that he is not presently and has never been an employee of any of the four named Respondents. (Tr. 6). However, he testified that at the time he filed the instant complaint and at the present time, he was a representative of current employees (C.D. Varnadore and Brenda Washington-Shelton) of Oak Ridge National Laboratory (ORNL) for which BMI was the DOE Contractor. (Tr. 6-7, 12). He also testified that he represented DOE federal employees in several states, including New Mexico and Tennessee and have counseled and advised DOE employees at other sites. (Tr. 9). He has represented Complainant Ed Bricker who filed a Chapter 3 Complaint pursuant to DOE orders in 1989. (Tr. 14). He acknowledged that he never represented any employees of the University of Illinois. (Tr. 11).

   He also stated that he represented DOE employees Millard Day and Tod Rockefeller, both of whom have pending environmental whistleblower complaints. (Tr. 16-17). All past and pending cases in which Complainant is a representative are cases filed under the SWDA or CERCLA statutes. (Tr. 17).

   Complainant testified that he did not suffer any unfavorable personnel action from any of the Respondents, but was "blacklisted" by Mr. Dukelow and Ms. Woo on behalf of their respective employers (PNNL and UOI, respectively) by being subjected to "moderation" and "being kicked off the list" because he expressed protected environmental concerns. (Tr. 17-18). He stated the core of the concerns expressed was "that persons from Oak Ridge who were named in the complaint had abused the trust of the list and had, in essence, marginalized and mocked sick workers and whistleblowers in Oak Ridge for their concerns." (Tr. 18).

   On cross-examination, Complainant testified that he did not file his April 19, 2000 complaint with OSHA on behalf of the people that he represents. (Tr. 18-19). Furthermore, he stated he has never represented a PNNL employee. (Tr. 21). Complainant contends that anyone working for ORNL would be an employee of the entity awarded the prime contract, BMI and University of Tennessee, an alleged joint venture. (Tr. 23). The individuals represented by Complainant filed complaints against ORNL, a predecessor contractor (Lockheed Martin) and DOE, and not BMI. (Tr. 24). Complainant acknowledged that he was never filed a complaint against BMI on behalf of a BMI employee. However, he represents employees who filed complaints against ORNL and BMI's predecessor contractor and his clients are now employees of BMI. (Tr. 26).

The Opposition Of DOE

   DOE argues in brief that neither the SWDA nor CERCLA statutes were enacted to empower "non-employees to file complaints on their own behalf regarding allegations of discrimination directed only at themselves." Further, that DOE should be dismissed from the instant case because no facts have been alleged to establish that DOE is an "employer" that retaliated against protected activity. DOE contends that merely because Complainant has previously represented employees of DOE and its contractors he is not vested with permanent standing to assert claims of retaliation on his own behalf "for any discrimination, of any kind, by any agency or any contractor of any agency," which are not clearly envisioned by the employee protection provisions of SWDA or CERCLA.

   DOE further argues that Anderson applies here and that the undersigned should determine whether Complainant is an "authorized representative" within the context of the Complaint itself. Thus, it is asserted that Complainant has offered "no allegations or proof that his listserv activities were done on behalf of employees of Respondents as their "authorized representative." DOE contends that since the only person affected by the "moderation" on April 18, 2000 was Complainant, who is clearly not an employee of any Respondent, Complainant could not have been representing any employee.

   DOE further claims that it should be dismissed from the present proceeding because Complainant has not established a prima facie case against it on the issue of employer/employee relationship involving any employment decisions relating to Complainant or any alleged act of retaliation.

   Lastly, DOE contends that the instant Complaint should be dismissed because of Complainant's lack of standing and the remaining motions for remand, preservation of evidence and discovery are thereby rendered moot.

UOI's Position

   UOI initially notes that nowhere in the instant Complaint does Complainant allege he "is or was an employee of the Respondents or an authorized employee representative of [any employee of] Respondents." UOI urges dismissal under the SDWA, CAA, TSCA and ERA since Complainant testified that he is not and was not at the time of filing his Complaint an employee of Respondents and never has been an employee of Respondents. Complainant's case should also be dismissed under the SWDA and CERCLA since he has not shown he was an authorized representative of an UOI employee.

PNNL/BMI's Contentions

   PNNL/BMI correctly noted that Complainant is not and has never been an employee of any of the named Respondents, nor has he ever represented an employee in a federal administrative claim lodged against BMI. PNNL/BMI argue that Complainant "seeks an overly- literal interpretation of the [employee protection language of the SWDA and CERCLA] as his basis for standing because he has represented non-party employees against non-party employers generally." Based on such an interpretation, PNNL/BMI further argue Complainant contends that he is entitled to "lifetime and unlimited authorized representative protection in any activity that he engages (including personal activity), and with any employer that he might encounter." It is urged that Complainant's status/standing must fail because he is not and never has been an employee representative for any of PNNL/BMI's employees.

Status/Standing

   Based on Complainant's sworn testimony, it is clear, and I find, that he is not and never has been an employee of any of the named Respondents. To the extent, if any, that Complainant seeks redress as an "employee" of any of the named Respondents, his Complaint is without merit. Furthermore, the Regional Administrator's finding that the SDWA, CAA, TSCA and ERA do not extend protective coverage to employee representatives is certainly sustainable. Accordingly, I find and conclude that Complainant, as a representative, lacks standing to bring a complaint under the SDWA, CAA, TSCA and ERA.

   Thus, the remaining status/standing issue is whether Complainant's Complaint has viability under the SWDA and CERCLA statutes.

   The parties were requested to brief the legislative intent of Congress in enacting protective provisions for an employee or authorized representative. (Tr. 34). No such discussion was presented by any party. My research has yielded little enlightenment on the subject. As recognized in Anderson, neither statute defines employee or authorized representative and no case precedent interprets the statutory provisions. Therefore, the plain meanings of the words must be analyzed. "Authorized" is construed as the equivalent to "permitted" or "directed," indicating "possessed of authority" and "representative" is "a person or thing that represents, or stands for, a number or class of persons or things, or that in some way corresponds to, stands for, replaces, or is equivalent to, another person or thing." BLACK'S LAW DICTIONARY (6th Edition 1990). Generally, I find that Complainant is an employee representative of employees.

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).

   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).