FINAL DECISION AND ORDER
This case arises under the employee protection
provisions of the Energy Reorganization Act, 42 U.S.C. § 5851
(1988). Before this Board for review is the Administrative Law
Judge's (ALJ) Recommended Decision Granting Employer's Motion for
Summary Judgment, Dismissing Claim, and Striking Hearing Date
(R.D.) issued on April 5, 1996. We adopt the ALJ's recommendation
to grant Summary Judgment and dismiss the complaint with prejudice
for the reasons stated below.
BACKGROUND
The ALJ accurately sets forth the facts and
procedural history of this case. R.D. at 1-3, 6-8. In brief,
Complainant was removed from a position as a fire protection
foreman by the Respondent (TVA) at its Watts Bar Nuclear Plant,
because his placement in that job contravened the negotiated
collective bargaining agreement between TVA and the Tennessee
Valley Trades and Labor Council which represents TVA's trades and
labor employees. Complainant does not dispute the basis of his
removal, nor does he allege that his removal was occasioned by a
safety concern regarding the plant. He continues to seek relief
from the Board even though he understands that the Department of
Labor does not have jurisdiction over this matter, because he
believes that his removal was discriminatory based on his job
classification schedule. See Complainant's telefax to the
Board, August 12, 1996.
DISCUSSION
For a complainant to prevail under the employee
protection provisions of the ERA, he must make a prima facie
case by establishing that he engaged in protected activity, that he
was subjected to adverse action, that the respondent was aware of
the protected activity when it took the adverse action, and that
the adverse action was retaliatory in response to the protected
activity. Zinn v. University of Missouri , Case Nos. 93-ERA-34, 93-ERA-36, Sec. Dec. and Order, Jan. 18, 1996, slip op. at 6-8.
In this case, the Complainant concedes that he was not engaged in
protected activity, therefore there is no basis for finding that
Respondent engaged in a retaliatory action.
A motion for summary judgment is governed by 29
C.F.R. § 18.40(d), which provides that an ALJ may enter
summary judgment for a party if the pleadings before him show that
there is no genuine issue as to any material fact, and that the
moving party is entitled to summary decision. Here there are no
disputed material facts and the ALJ correctly concluded that the
Complainant is engaged in a labor-management dispute with TVA, and
not an environmental safety dispute. R.D. at 9.
ORDER
The ALJ's Recommended Decision awarding summary
judgment to Respondent and dismissing the complaint is affirmed.
Complainant's complaint IS DISMISSED WITH PREJUDICE.
SO ORDERED.
DAVID A. O'BRIEN
KARL J. SANDSTROM
JOYCE D. MILLER
[ENDNOTES]
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