THE ARB CORRECTLY DENIED ANDERSON'S WHISTLEBLOWER COMPLAINT ON THE GROUND THAT SHE FAILED TO ESTABLISH THAT SHE WAS AN "AUTHORIZED REPRESENTATIVE OF EMPLOYEES" ENTITLED TO PROTECTION UNDER THE WHISTLEBLOWER PROVISIONS OF THE ENVIRONMENTAL STATUTES

A.   Standard of Review

B.   Statutory Background and Burden of Proof

C.   The ARB correctly concluded as a matter of law that, as an appointed member of the Metro Board Of Directors, Anderson could not have been the "Authorized Representative" of either OCAW or Metro employees

D.   Substantial evidence supports the ARB's conclusion that neither OCAW nor Metro employees authorized Anderson to represent them during her tenure as a director on the Metro Board

CONCLUSION 

ORAL ARGUMENT REQUESTED

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

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 TABLE OF AUTHORITIES

Cases

Bechtel Constr. Co. v. Secretary of Labor, 50 F.3d 926 (11th Cir. 1995)
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)
Frey v. Bowen, 816 F.2d 508 (10th Cir. 1987)
Illinois Central R.R. v. Norfolk & Western Ry. Co., 385 U.S. 57 (1966)
Kerr-McGee Coal Corp. v. Federal Mine Safety & Health Review Comm'n,  40 F.3d 1257 (D.C. Cir. 1994)
McCloy v. U.S. Dep’t of Agriculture, 351 F.3d 447 (10th Cir. 2003)
Olenhouse v. Commodity Credit Corp., 42 F.3d 1560 (10th Cir. 1994)
Richardson v. Perales, 402 U.S. 389 (1971)
Ruud v. U.S. Dep’t of Labor, 347 F.3d 1086 (9th Cir. 2003)
Shell Oil Co. v. F.E.R.C., 47 F.3d 1186 (D.C. Cir. 1995)
Thunder Basin Coal Co. v. Federal Mine Safety and Health Review Comm’n, 56 F.3d 1275 (10th Cir. 1995)
Trimmer v. United States Department of Labor, 174 F.3d 1098 (10th Cir. 1999)
Universal Camera Corp. v. N.L.R.B., 340 U.S. 474 (1951)
United States v. Mead Corp., 533 U.S. 218 (2001)
Utah Power & Light Co. v. Sec’y of Labor, 897 F.2d 447 (10th Cir. 1990)
Wilburn v. Mid-South Health Development, Inc., 343 F.3d 1274 (10th Cir. 2003)

Administrative Procedure Act,

 5 U.S.C. 551 et seq.

 5 U.S.C. 706(2)(A)

 5 U.S.C. 706(2)(E)

Clean Air Act

 42 U.S.C. 7622

Comprehensive Environmental Response, Compensation, and Liability Act,

 42 U.S.C. 9610 et seq.

 42 U.S.C. 9610

 42 U.S.C. 9610(a)

 42 U.S.C. 9610(b)

 42 U.S.C. 9613(b)

 42 U.S.C. 9613(j)(2)

Energy Reorganization Act of 1974,

 42 U.S.C. 5801 et seq.

 42 U.S.C. 5851 

 42 U.S.C. 5851(a)(1) 

 42 U.S.C. 5851(b)

 42 U.S.C. 5851(b)(1) 

 42 U.S.C. 5851(c)

Federal Coal Mine Health and Safety Act of 1969

 30 U.S.C. 820(b)(1)

Federal Water Pollution Control Act

  33 U.S.C. 1367  

  33 U.S.C. 1367(a)    

  33 U.S.C. 1367(b)

National Labor Relations Act

 29 U.S.C. 158(a)(4)

Safe Drinking Water Act

 42 U.S.C. 300j-9(I)

Solid Waste Disposal Act

 42 U.S.C. 6971 

 42 U.S.C. 6971(a)

 42 U.S.C. 6971(b)

Toxic Substances Control Act

 15 U.S.C. 2622 

Metropolitan Sewage Disposal Districts Act,

 C.R.S. 32-4-501 et seq. 

 § 32-4-501 

 § 32-4-509(2)(a)

 § 32-4-509(2)(b)

 § 32-4-509(2)(c)

 § 32-4-509(2)(d)

 § 32-4-509(3) 

 § 32-4-509(4)

Code of Federal Regulations

 29 C.F.R. Part 24

 29 C.F.R. Part 24.1(a)

 30 C.F.R. 40.1(b)(1) 

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ADRIENNE ANDERSON,

                                             Petitioner,

v.

ELAINE L. CHAO, SECRETARY OF LABOR,

UNITED STATES DEPARTMENT OF LABOR,

 and

METRO WASTEWATER RECLAMATION DISTRICT,

                                                                   Respondents.

On Petition for Review of the Final Decision

and Order of the Secretary of Labor

BRIEF FOR THE SECRETARY OF LABOR

   This case arises under the employee protection provisions  of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. 9610; the Solid Waste Disposal Act ("SWDA"), 42 U.S.C. 6971; the Federal Water Pollution Control Act ("FWPCA"), 33 U.S.C. 1367; and the Energy Reorganization Act of 1974, as amended ("ERA"), 42 U.S.C. 5851, as well as the implementing regulations at 29 C.F.R. Part 24.  Congress authorized the Secretary of Labor ("Secretary") to investigate whistleblower complaints, conduct hearings, and order abatement of a violation where one is found to have occurred.  See 42 U.S.C. 9610(b), 42 U.S.C. 6971(b), 42 U.S.C. 5851(b), and 33 U.S.C. 1367(b).  This Court has jurisdiction to review the Secretary's final decision under 42 U.S.C. 6971(b), 42 U.S.C. 5851(c), and 33 U.S.C. 1367(b).[1]  On May 29, 2003, the Administrative Review Board ("ARB") issued its Final Decision and Order on behalf of the Secretary disposing of all parties' claims.[2]  Adrienne Anderson filed a timely Petition for Review with this Court on July 24, 2003.

STATEMENT OF THE ISSUE

  
Whether the ARB correctly denied Anderson's complaint on the ground that, as a member of Metro's Board of Directors,  Anderson was not an "authorized representative of employees" entitled to protection under the environmental whistleblower statutes.  

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STATEMENT OF THE CASE

A.  Nature of the Case and Course of Proceedings

     The whistleblower provisions of CERCLA, SWDA, and the FWPCA protect an "authorized representative of employees" from being fired or otherwise discriminated against for engaging in certain specified protected activity.  See 42 U.S.C. 9610(a), 42 U.S.C. 6971(a), 33 U.S.C. 1367(a).  On May 2, 1997, Adrienne Anderson, a member of the Board of Directors of the Metro Wastewater Reclamation District  ("Metro"), filed a complaint with the Occupational Safety and Health Administration ("OSHA"), United States Department of Labor (R. 1),[3] under the environmental whistleblower provisions of the CERCLA, SWDA, FWPCA, ERA (which does not protect "authorized representatives of employees," see infra), and three other statutes.[4]  Anderson alleged that Metro discriminated against her for raising health and safety issues concerning Metro's treatment of purportedly contaminated wastewater.  OSHA investigated the complaint and found that Metro had discriminated against Anderson under CERCLA, SWDA, and FWPCA, but denied her claim under the ERA.  (R. 3). 

Both parties, Anderson and Metro, requested a hearing before an Administrative Law Judge.  (R. 6-7).  On November 26, 1997, Metro filed a Motion for Summary Decision, arguing that Anderson was not an "authorized representative of employees" and, therefore, was not covered by the whistleblower statutes.  (R. 43, Respondent's Motion for Summary Decision).  On February 19, 1998, the Administrative Law Judge issued a recommended order granting Metro's motion.  (R. 48, Administrative Law Judge's Recommended Order Granting Respondent's Motion for Summary Decision). 

     On March 30, 2000, the ARB issued a Decision and Remand Order.  (R. 54, ARB's Decision and Remand Order).  The ARB ruled that a material issue of fact existed precluding summary disposition, and remanded the case to the Administrative Law Judge for a factual determination on the issue whether Anderson was an "authorized representative of employees."  After examining the statutory language and the legislative history,[5] the ARB provided the following guidance: 

[A]nderson is an "authorized representative" of Metro employees if a Metro employee or group of Metro employees requested her to speak or act for the employee or group of employees in matters within the coverage of the SWDA, CERCLA, or FWCPA, or if a union representing Metro employees (e.g., OCAW [the Oil Chemical and Atomic Workers International Union]) requested her to speak or act for the union (and by extension the employees) in matters within the purview of these statutes.

(R. 54, p. 7-8).  The ARB also instructed the Administrative Law Judge to determine whether Anderson was covered by the ERA. 

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Moreover, even if Anderson could legally be the "authorized representative" of OCAW or the Metro employees, substantial evidence supports the conclusion that she was never actually authorized to represent either.  The union recommended to the Mayor of Denver that Anderson be appointed to the Metro Board, and expected that, after her appointment, she would serve as a "voice" of its interests.  There is even some indication that Anderson was perceived, and indeed perceived herself, as just such a voice.  This does not, however, mean that Anderson was formally authorized to represent OCAW or the Metro employees by those entities.  They could not, and did not, make such an authorization.  As the ARB stated, "While the union sought Anderson's appointment as a Metro director and generally agreed with her views, she failed to prove that it had authorized her to act for OCAW and its Metro employees while she was a Metro director."

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ARGUMENT

THE ARB CORRECTLY DENIED ANDERSON'S WHISTLEBLOWER COMPLAINT ON THE GROUND THAT SHE FAILED TO ESTABLISH THAT SHE WAS AN "AUTHORIZED REPRESENTATIVE OF EMPLOYEES" ENTITLED TO PROTECTION UNDER THE WHISTLEBLOWER PROVISIONS OF THE ENVIRONMENTAL STATUTES

A.  Standard of Review

     1.  The Secretary's decision is reviewed under the standard  established by the Administrative Procedure Act ("APA").  See, e.g., 42 U.S.C. 9613(j)(2); 33 U.S.C. 1367(b).  Under the APA, the reviewing court will set aside agency action only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."  5 U.S.C. 706(2)(A).  A court's review of the Secretary's factual findings is deferential; the Secretary's factual determinations will be upheld unless they are "unsupported by substantial evidence."  5 U.S.C. 706(2)(E).  See Trimmer v. United States Department of Labor, 174 F.3d 1098, 1102 (10th Cir. 1999).  Substantial evidence is such evidence that is "'enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion to be drawn is one of fact.'"  Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1580 (10th Cir. 1994) (quoting Illinois Central R.R. v. Norfolk & Western Ry., 385 U.S. 57, 66 (1966)).  Under the APA, "'[s]ubstantial evidence' is more than a mere scintilla; it must be such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."  Olenhouse, 42 F.3d at 1581 (citing Frey v. Bowen, 816 F.2d 508, 512, (10th Cir. 1987), in turn citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).  Ultimately, this standard of review is narrow; the court may not substitute its judgment for that of the agency.  See Universal Camera Co. v. NLRB, 340 U.S. 474, 488 (1951); see also Trimmer, 174 F.3d at 1102. 

     2.  Legal issues are reviewed de novo with due deference to the Secretary's reasonable construction of a statute that Congress has committed to the agency's administration and enforcement.  See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984); Trimmer, 174 F.3d at 1102.  In accordance with the Supreme Court's direction, this Court has held that "an agency's interpretation of a statute entrusted to that agency for administration should be accepted if it is a reasonable one, even if another interpretation may exist that is equally reasonable."  Thunder Basin Coal Co. v. Federal Mine Safety and Health Review Comm'n, 56 F.3d 1275, 1277 (10^th Cir. 1995) (citing Utah Power & Light Co. v. Sec'y of Labor, 897 F.2d 447, 449-50 (10^th Cir. 1990)).  As the Supreme Court has stated, "It is fair to assume generally that Congress contemplates administrative action with the effect of law when it provides for a relatively formal administrative procedure tending to foster the fairness and deliberation that should underlie a pronouncement of such force.  Thus, the overwhelming number of our cases applying Chevron deference have reviewed the fruits of notice-and-comment rulemaking or formal adjudication."  United States v. Mead Corp., 533 U.S. 218, 230 (2001) (footnotes and citation omitted) (emphasis added).  See also McCloy v. U.S. Dep't of Agriculture, 351 F.3d 447, 450 (10th Cir. 2003) (deference to reasonable agency construction of a statute in the course of agency adjudication).

     3.  In the instant case, as set forth below, the ARB's final decision reasonably interpreted the term "authorized representative of employees" not to apply to Anderson, i.e., to someone who was, pursuant to state law, appointed by an elected official to serve as a director on a public board for the express purpose of representing all the citizens of a municipality.  This ultimate legal conclusion, based on statutory interpretation, is entitled to Chevron deference.  Moreover, substantial evidence supports the ARB's conclusion that, even if Anderson could have been the "authorized representative" of OCAW or Metro employees, she was not in fact authorized by them to be such a representative.  

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B.  Statutory Background and Burden of Proof

     Congress authorized the Secretary of Labor to enforce and administer the whistleblower provisions of the environmental statutes, including the three laws at issue here.  The CERCLA, FWPCA, and the SWDA protect employees and "authorized representatives of employees" from discrimination because of their protected activity.  Using identical language, the statutes provide in relevant part:

42 U.S.C. 6971(a); 42 U.S.C. 9610(a); 33 U.S.C. 1367(a).

     To prevail under the whistleblower statutes, Anderson was required to establish a prima facie case by showing that she was covered by the applicable statutes, i.e., that she was either an employee or an authorized representative of employees; that she engaged in protected activity; and that the employer took adverse action against her because of her protected activity.  See Trimmer, 174 F.3d at 1101; Bechtel Construction Co. v. Secretary of Labor, 50 F.3d 926, 933-34 (11th Cir. 1995).  It is only the first requirement that is at issue here, specifically, whether Anderson has established by a preponderance of the evidence that she was an "authorized representative of employees."  

     Congress has not defined the term "authorized representative" in any of the whistleblower statutes.  Furthermore, the legislative history of the three statutes does not provide a definition of the term.  The Secretary also has not promulgated any regulation defining the term "authorized representative."  In the context of this absence of legislative or regulatory guidance, and "[w]ithin the parameters set by the previous ARB panel," the ARB reasonably concluded that Anderson could not, by operation of Colorado law, be the representative of anyone other than the citizens of the municipality whom she was appointed by the Mayor of Denver to represent as a member of the Metro Board of Directors.  The ARB also concluded that, in any event, Anderson had not proven that she was authorized by OCAW or by any group of Metro employees to represent them during her tenure as a Metro Board director.  (R. 171, ARB's Final Decision and Order, p. 10).          

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C.  The ARB correctly concluded as a matter of law that, as an appointed member of the Metro Board of Directors, Anderson could not have been the "authorized representative" of either OCAW or Metro employees.  

    1.  The language of the Colorado statute and the Metro Bylaws unequivocally supports the ARB's conclusion that Anderson did not have the legal authority to represent OCAW or Metro employees in her capacity as a Metro Board director.  As the ARB explained, "Anderson could not represent OCAW or Metro employees as a Metro director because the statute authorizes the directors to represent the citizens of the City and County of Denver, not a particular interest group."  (R. 171, ARB's Final Decision and Order, p.10).  

     The Colorado Metropolitan Sewage Disposal Districts Act provides that "[t]he members of the board of directors from each municipality shall be appointed by the executive of each such municipality with the approval of the governing body of such municipality."  C.R.S. § 32-4-509(2)(a).  In districts with more than 11 member municipalities, like the Metro district at issue here, the directors are appointed proportionally, according to the number of people in the municipality.  For instance, with certain exceptions, "the board of directors shall consist of one member from each municipality included within the district for each twenty-five thousand of population, or fraction thereof, in any such municipality, plus one member for each additional twenty-five thousand of population, or fraction thereof, in any such municipality."  Id.  Moreover, Board members must be qualified electors who are eligible to vote in state general elections, and must "reside within the district and within the municipality from which they are appointed."  C.R.S. § 32-4-509(3).  Further, "[a] change of residence of a member of a board of directors to a place outside the area which he represents shall constitute an automatic resignation and shall create a vacancy on the board."  C.R.S. § 32-4-509(4).  Additionally, every two years, the representation on the Board of Directors is reapportioned so that the representation on the Board reflects the population of the district.  C.R.S. § 32-4-509(2)(b), (c), and (d).  Significantly, the legislative declaration of the state statute declares that "the organization of metropolitan sewage disposal districts . . . will serve a public use and will promote the public health, safety, and general welfare."  C.R.S. § 32-4-501.  It is thus clear that directors on the Metro Board, like Anderson, are by law representatives of the citizens of the municipality whom they were appointed to serve.  As The ARB stated,  "[t]he [Colorado] statute does not create ex officio positions or designate any director as the representative of a particular segment of society, such as commerce, academia, or labor."  (R 171, ARB's Final Decision and Order, p. 10).

     2.  The Bylaws also "indicate strongly that a director may not serve two masters – in this case, the interests of the citizens the director was appointed to represent and the interests of OCAW and Metro employees."  (R. 171, ARB's Final Decision and Order, p. 12).  Indeed, Metro Board directors are considered "fiduciaries of the Metro district" and are required to "exercise all official duties for the benefit of the District."  (RX 72; R. 171, ARB's Final Decision and Order, p. 11).  The oath the directors take, which is contained in the Bylaws, states that "I will support the Constitutions of the United States of America and of the State of Colorado, and that I will faithfully perform the duties and responsibilities of the Office of Director of the METRO WASTEWATER RECLAMATION DISTRICT, to which I have been appointed."  (Id.).  Directors are also required to declare when they have a conflict of interest and to refrain from participating in any decision in which they have "a personal or private interest."  (RX 72; R. 171, ARB's Final Decision and Order, p. 12).  The Bylaws are thus explicit about the directors' responsibilities -- they are responsible for representing the municipalities they serve and the Board itself.

     3.  The Mayor of Denver appointed Anderson to a seat on the Metro Board as a representative of the citizens of the City and County of Denver.  (RX 30).  In fact, the Mayor specifically stated in his February 22, 1996 letter of appointment, "Please accept my deep appreciation of your willingness to serve the citizens of the City and County of Denver in this important role."  (CX 5).  The official appointment form, signed by the Mayor, appointed Anderson "as the City of Denver's representative on the Board of Directors of Metro Wastewater Reclamation District, to serve a term of two years, beginning July 1, 1996, and ending June 30, 1998, in accordance with the laws of the State of Colorado and the By-laws of the Metro Wastewater Reclamation District."  (RX 30).

     As the ARB stated, "[t]he Mayor's letter of appointment does not suggest that Anderson was appointed to serve OCAW or Metro employees."  (R. 171, ARB's Final Decision and Order, p. 12).  The ARB correctly concluded that the Mayor "knew that [Anderson] was sympathetic with labor causes, and that he was fulfilling his own policy objectives by appointing Anderson, who was recommended by OCAW.  But such political decision-making does not confer legal authority on Anderson to serve as an authorized representative of employees under the whistleblower statutes."  (Id.).  The ARB cogently explained "that even if Mayor Webb believed that Anderson would 'represent' the views of Metro workers and labor generally, he did not have the legal power to appoint her to the Metro board for that purpose.  And even if OCAW or other Metro employees considered Anderson their 'representative' on the Metro board, neither had any legal power to make her their representative in her capacity as a Metro director, or to bind her to make particular decisions in a particular way."  (Id.).   

     4.  Anderson contends that there is no language in the applicable Colorado statute or in the Bylaws "which prohibits Directors from advocating on behalf of individuals or special interest groups during Board deliberations."  (Petitioner's Brief at 28).  This misses the point.  The directors, once on the Metro Board, may presumably advocate on behalf of any particular interest they choose; they are, however, by operation of law, appointed to represent the citizens of a specific geographical area and not "various segments of the body politic."  (R 171, pp. 12-13).  When acting as Board members, they are not the "authorized representatives" of any union or group of employees.

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D.  Substantial evidence supports the ARB's conclusion that  neither OCAW nor Metro employees authorized Anderson to represent them during her tenure as a director on the Metro Board.

    Even if, contrary to our prior argument, Anderson could have been the "authorized representative" of OCAW or Metro employees, substantial evidence supports the ARB's conclusion that neither OCAW nor Metro employees actually authorized her to be their representatives during the relevant time period.  As the ARB explained, consistent with the plain meaning of "authorized," "there must be some tangible act of 'selection' or authorization to enable the representative to perform any actions on behalf of the employees who selected him or her or authorized his or her representation."  (R. 171, ARB's Final Decision and Order, p. 13, citing to R. 54, ARB's Decision and Remand Order, p. 7).  As an example of a tangible act of selection, the ARB noted that Anderson's "consulting contract with OCAW in 1994 was a tangible act 'selecting' and authorizing her to represent Metro employees during that time frame."  (R. 171, ARB's Final Decision and Order, p. 13).  The ARB, however, concluded that "Anderson produced no similar written or testimonial evidence that OCAW or the Metro employees had 'selected' or authorized her to act on their behalf during her tenure as a director on the Metro board."  (Id.).[9] 

     The Mayor's office invited OCAW to submit resumes of candidates for consideration as prospective Board members after the union wrote a letter of protest to Paul Wishard in the Mayor's office complaining that Cecile Rose, a director whom the union perceived to be sympathetic to its concerns, had not been reappointed by the Mayor.  (Tr. 103-05).  Marilyn Ferrari, vice- president of the OCAW local, asked Anderson to provide a resume for submission to the Mayor, "[b]ecause of all her environmental experience, we felt that this would be -- she would be a really welcome member on the Board, and we wrote a cover letter."  (TR. 106).  Pat Farmer, the union representative who wrote the letter recommending Anderson, recalls that Wishard (from the Mayor's office) asked the union to "suggest someone to be on the Board."  (TR. 634).  Farmer noted that Anderson "had worked with the union, and we knew that she would represent us fairly, and she had a strong environmental background, which we felt would be beneficial to the District."  (TR. 635).  Farmer further testified: "We were looking for a voice on the Board to get us a contract."  (TR. 636) (emphasis added).

     On December 12, 1995, the union submitted Anderson's resume to the Mayor's office with Farmer's cover letter, noting that she "is a recognized expert on environmental issues and is well versed on matters regarding the Lowery Landfill."  (CX 4).  The letter also mentioned that Anderson had been "helpful" to Metro employees "in their fight for a fair contract."  (Id.).  The union did not indicate that Anderson's name was being proposed as an "authorized representative" of Metro's employees or the union.  In fact, the union's letter states: "The majority of our members are taxpayers in the city of Denver and we believe the Denver Directors have a duty to represent the citizens of this city."  (Id.).  The letter indicates the union's desire to have the Mayor appoint a director who understood its concerns, one "who will put people and the environment first."  (Id.). 

    
Albert Levin, a former Metro Board member, testified that when Anderson introduced herself to the Metro Board, "she indicated that she was appointed by the [City] Council and the Mayor's office to represent the concerns and the welfare of the employees."  (TR 143).  Levin did not testify that either OCAW or Metro employees authorized Anderson to be their representative.  It is also noteworthy that the chairman of the Metro Board of Directors, Richard J. Plastino, and four other directors on the Board, testified that they viewed Anderson as a fellow Board member, not as any "authorized representative."  (R 171, ARB's Final Decision and Order, p. 3; TR. 1028-29, 1276, 1362, 1457).  As the ARB concluded, "Anderson was, at best, self-authorized."  (R 171, ARB's Final Decision and Order, p. 14). 

    
The testimony of Theodore Hackworth, a Denver City Councilman and one of the directors of the Metro Board, reveals his initial concerns about Anderson's relationship to OCAW and her subsequent assurance that she was not an OCAW representative.  Hackworth testified on direct examination that prior to the City Council's ratification of Anderson's appointment in the spring of 1996, he requested that she make a second appearance before the Public Works Committee.  The exchange is instructive.

Q. What do you recall about your dialogue with Ms. Anderson at this meeting?

 

A. Well, what I wanted to know, was the –- her relationship with OCAW a continuing relationship that would in fact create conflicts on the Board. I also wanted to know, were the groups that she represented, representing some kind of environmental extremism, that in fact would create a problem with the relationships of Denver with the other Board members.

 

Q. What do you recall the answers being from Ms. Anderson?

 

A. I believe she stated that she was no longer representing the union, so that was not a concern, and that she didn't consider the groups that she had represented to be extreme.

* * * 

Q. And did you vote for her confirmation based upon the answers she provided you?

 

A. Absolutely. I would have never approved her if she hadn't satisfied that – - me that in her statements that she wasn't representing the union, nor extreme environmental positions.

(TR 1418-1422).

     Alison Laevy, a consultant and campaign coordinator for OCAW, testified that the union was "looking for friendly, sympathetic faces on the Board at Metro."  (TR 86).  Laevy stated: "[W]e wrote to [the Mayor] to ask for representation on the Board of the Metro Wastewater.  Someone who could be an advocate for union members."  (TR 86).  While Laevy considered Anderson to be "our representative on the Board" (TR 89), she acknowledged that OCAW never notified anyone on the Metro Board that the union considered Anderson to be its representative.

Q. Okay. I want to know what notice the OCAW put the District on that Ms. Anderson was the authorized representative of the employees when she was appointed to the Board. How did you notify the District and tell them about that status?

A. I don't recall there was any.

Q. There wasn't any, was there?

A. No, not to my recollection.

Q. So, as far as you know, the District never knew that she was the authorized representative of the employees.

A. Right.

     Finally, in a Metro Wastewater Reclamation District Directors Information form, dated October 31, 1996, after her appointment as a director, Anderson identified her occupation as an instructor of environmental ethics at the University of Colorado at Boulder.  (RX 35).  Anderson noted that her volunteer community activities included "environmental advocacy and public interest civic development around environmental hazards, public health issues".  (Id.).  She listed special skills as "Consumer/public health research & advocacy."  (Id.).  Anderson did not state anywhere in this form that she was an "authorized representative" of OCAW.

     In sum, while the union may have considered Anderson, and Anderson may have considered herself, as being a voice for the interests of OCAW and Metro employees, neither the union nor any group of employees specifically authorized her to be their representative nor, as argued above, could they have.  As the ARB stated, "There is no dispute that OCAW wanted Anderson on the Metro board.  But the union's wishes and public perceptions did not confer 'authorized representative' status, any more than one's affinity for political discourse makes one an official representative of a particular point of view or being sympathetic to a particular point of view gives the sympathizer the authority to act as an agent for one similarly inclined."  (R. 171, ARB's Final Decision and Order, p. 18).

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CONCLUSION

     For the foregoing reasons, this Court should affirm the final decision of the ARB dismissing Anderson's complaint for failure to establish that she was an "authorized representative of employees" under the whistleblower provisions of CERCLA, SWDA, and FWPCA.

Respectfully submitted,

HOWARD M. RADZELY

Solicitor of Labor

STEVEN J. MANDEL

Associate Solicitor 

PAUL L. FRIEDEN

Counsel for Appellate Litigation

                             ______________________________

MARY J. RIESER

Attorney

U.S. Department of Labor

Office of the Solicitor

200 Constitution Ave., N.W.

N 2716

Washington, D.C.  20210

(202) 693-5555

ORAL ARGUMENT REQUESTED

     The Secretary of Labor requests oral argument in this case.  The issue for decision is one of first impression.  The Department of Labor is the agency charged with administering and enforcing the employee protection provisions of the environmental statutes at issue in this case.  Accordingly, the Secretary believes that she would be of assistance to this Court.

CERTIFICATE OF COMPLIANCE

     I hereby certify, pursuant to Federal Rule of Appellate Procedure 32(a)(5), that this Brief of the Secretary of Labor contains 8,308 words in monospaced typeface, 12 point New Courier.

                             _______________________________

                             MARY J. RIESER

                             Attorney

CERTIFICATE OF SERVICE

          I hereby certify that on this ____ day of March 2004,

the undersigned sent copies of the Brief of the Secretary of Labor to the following, by U.S. Mail, first-class, postage pre-paid:

                                      MARY J. RIESER

                                      Attorney