B.F. SHAW COMPANY,
SAVANNAH RIVER PLANT,
RESPONDENT.
CASE NO. 87-ERA-12
JOY P. ADAMS,
COMPLAINANT,
v.
U.S. DEPARTMENT OF ENERGY,
E.I. DU PONT DE NEMOURS & COMPANY,
BLOUNT BROTHERS CORPORATION, AND
B.F. SHAW COMPANY,
RESPONDENTS.
CASE NOS. 87-ERA-45, 46
ROGER DALE WENSIL AND
JOY P. ADAMS,
COMPLAINANTS,
v.
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DEPARTMENT OF ENERGY, AND
DEPARTMENT OF ENERGY, OFFICE
OF INSPECTOR GENERAL,
RESPONDENTS.
CASE NO. 88-ERA-34
ROGER WENSIL,
COMPLAINANT,
v.
UNITED STATES DEPARTMENT OF ENERGY;
ADMINISTRATOR, WAGE AND HOUR DIVISION,
UNITED STATES DEPARTMENT OF LABOR;
E.I. DU PONT DE NEMOURS & COMPANY;
BLOUNT BROTHERS; AND B.F. SHAW COMPANY,
RESPONDENTS.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
QUESTION PRESENTED
The question presented in these cases is whether the
employee protection provision of the Energy Reorganization Act of
1974, as amended (ERA), 42 U.S.C. § 5851 (1982), covers employees
of Department of Energy (DOE) contractors, which operate
facilities that are owned by DOE and are not licensed by the
Nuclear Regulatory Commission (NRC); or covers only employees of
Nuclear Regulatory Commission licensees, license applicants, and
their contractors and subcontractors. (For convenience, the
first group will be referred to herein as "DOE-type employees,"
and the second group as "NRC-type employees.") The
Administrative Law Judges (ALJs) who heard these cases below all
held that the ERA only covers NRC-type employees, and they
dismissed the complaints for lack of jurisdiction. ALJ Order
Granting Motion to Dismiss in 86-ERA-15 at 2; ALJ Order Granting
Motion to Dismiss in 87-ERA-12 at 8; ALJ Recommended Order of
Dismissal in 87-ERA-45 and 87-ERA-46 at 3; ALJ Order of Dismissal
in 88-ERA-34 at 6.1
Based on these legislative events and materials I must
conclude that Congress sought to legislate with reference only to
the NRC. Given the complex and well-known statutory history of
energy regulation resulting in the bifurcation of DOE (primarily
research, development and national defense) and NRC (primarily
commercial power) licensed facilities and employees, and the
obvious existence of thousands of DOE and DOE/GOCO employees, it
seems to me inconceivable that Congress would have intended that
this whistleblower provision should apply to DOE-type employees
without once mentioning DOE or DOE/GOCO facilities or employees.
That is, if Congress had intended DOE/GOCO coverage, surely it
would have indicated that intent by mentioning DOE in some
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fashion, in addition to the numerous references to NRC. Yet no
explicit DOE reference can be found in the relevant legislative
materials.
It is not, therefore, surprising that DOE, the four
Administrative Law Judges who have considered this provision to
date, and the Associate Solicitor of Labor on behalf of the Wage
and Hour Administrator have all concluded that this whistleblower
provision does not apply to DOE/GOCO employees.
Nevertheless, Complainants argue that certain statutory
anomalies suggest a broader jurisdictional interpretation.
Complainants argue that "including," given its plain
meaning, is merely illustrative of a broader employer category.
But Respondents counter that the doctrine of ejusdem generis
mandates that the specific terms following "including," which
refer only to NRC licensees, applicants, and their contractors
and subcontractors, necessarily restrict the general "employer"
term. As stated above, I believe that the entire whistleblower
provision must be examined, and that an interpretation should be
selected which harmonizes all pertinent subsections.
While subsections (a)(1) and (3) of the provision at issue
refer to proceedings "under this chapter or the Atomic Energy Act
of 195411 -- both of which cover both DOE and NRC -- subsection
210(b)(1) states that, following the filing of a whistleblower
complaint:
[T]he Secretary [of Labor] shall notify the person
named in the complaint of the filing of the complaint
and the Commission.
(emphasis added.) Application of Complainants' proffered broad
interpretation to DOE/GOCO employees would result in most cases
in notifications to NRC of complaints against DOE -- an entirely
separate agency. That interpretation would make little, if any,
sense.
By contrast, the references to "this chapter" and to the
Atomic Energy Act can be harmonized and rendered sensible, by
interpreting them to mean simply that NRC-type employees can
pursue claims based on substantive provisions of those energy
statutes which apply to their NRC-related activities. Thus the
narrower -- but not the broader -- jurisdictional interpretation
can harmonize these superficially disparate provisions.
Other arguments of Complainants are summarized and dealt
with adequately by ALJ James Guill in his opinion in Case
No. 87-ERA-12, attached hereto, in whose reasoning I concur, for
the most part.5 As Judge Guill notes, a
narrow jurisdictional
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1 The ALJs' decisions in 96-ERA-15,
86-ERA-12, and 88-ERA-34
are not entitled "Recommended Decision." However, under the
regulations implementing the ERA, 29 C.F.R. Part 24 (1989),
except in limited circumstances, see 29 C.F.R. § 24.5(e)(4), an
ALJ's decision is only a recommended decision. Final orders are
issued by the Secretary. 29 C.F.R. § 24.6.
In 88-ERA-34, the ALJ dismissed the complaint pursuant to
29 C.F.R. § 24.5(e)(4). In the circumstances of this case,
relying on section 25.4(e)(4) was inappropriate. Subsection
(e)(4) of 29 C.F.R. § 24.5 is labelled Dismissal for cause, and
applies only to involuntary dismissals resulting from certain
specified actions of a complainant or a complainant's
representative which unnecessarily or unreasonably impede the
conduct of the litigation, such as the failure to attend a
hearing without good cause. 29 C.F.R. § 24.5(e)4(i)(A). That
was not the case here, where Respondent sought dismissal for lack
of jurisdiction. See Farinholt v. Virginia Power, Case No. 89-
ERA-27, Sec. Order of Dismissal, Dec. 13, 1989, slip op. at 1-2;
Stites v. Houston Lighting & Power Company, Case No. 87-ERA-41,
Sec. Order of Dismissal, Sept. 29, slip op. at 2.
2 The proceedings in 88-ERA-34
were stayed by my order of
September 29, 1989, until the jurisdictional issue is decided.
3 In Cases Nos. 87-ERA-45 and
87-ERA-46, Complainants allege that
the Department of Energy discriminated against them by
withholding the Inspector General's report on the investigation
of Mr. Wensil's discharge.
Respondent Du Pont states in its brief that, pursuant to an
investigation by DOE, "Joy Adams was ordered reinstated with
backpay of (sic) April 27, 1987 and has in fact, been offered
backpay and reinstatement. Similarly, the Secretary of Energy
has ordered Roger Wensil reinstated with backpay and Wensil has,
in fact, been reinstated." Brief of Respondent E.I. Du Pont de
Nemours & Company In the Matter of Joy P. Adams, Case No. 87-ERA-
12 at 3. In 88-ERA-34, Complainant Wensil alleges that on
September 4, 1987, he was constructively discharged by Respondent
B.F. Shaw, and that his request for relief was constructively
denied by Respondent Wage and Hour Administrator.
4 Pub. L. No. 95-601, 92 Stat.
2951, "An Act to authorize
appropriations to the Nuclear Regulatory Commission for fiscal
year 1979, and for other purposes."
5 I have reached this conclusion
based on my interpretation of
the statute and its legislative history. I do not feel
constrained to defer to the views of DOE or the NRC in this area
because section 210 designates the Secretary of Labor as the
official responsible for the administration and enforcement of
this section of the ERA.