DATE: FEB 4 1988

87-ERA-11
87-ERA36
88-ERA-1

In the Matter of

W. ALLAN YOUNG

    v.

PHILADELPHIA ELECTRIC COMPANY

W. ALLAN YOUNG

    v.

PHILADELPHIA ELECTRIC COMPANY

W. ALLAN YOUNG

    v.

E. H. HINDS AND
PHILADELPHIA ELECTRIC COMPANY

    This proceeding arises under Section 210 of the Energy Reorganization Act of 1974, as amended, 42 U.S.C. Section 5851 (hereinafter referred to as the "ERA"), and the implementating regulations promulgated thereunder at 29 C.F.R. Part 24, pursuant to three complaints filed by the above named Complainant. The complaints have been consolidated.

    The Respondent, Philadelphia Electric Company (PECO), now moves for

a dismissal of the case against it. The grounds for this dismissal are: (1) a site security clearance requiring a background investigation is not a statutory violation; (2) the Area Director failed to make out a prima facie case under the statutue; (3) the Area Director improperly gave his prior, unreviewed findings a res judicata effect; and (4) PECO was not the complainant's Employer and he was not its Employee within the meaning of the statute.

    After carefully reviewing the arguments for both sides, I must conclude that the Respondent's motion must be denied, and that a hearing should be held to develop further evidence in this case to determine if there has been a statutory violation under which the complainant is entitled to relief.

Site Security Clearance

    The Respondent contends that as a nuclear power plant licensee it must have an effective security program which provides adequate protection of the plant against sabotage, and as part of its security program it must ensure a background investigation for individuals requiring unescorted access to the plant's protected areas. It further argues that to permit suit under the stature for a denial of access to a nuclear power plant's protected areas might have a "chilling effect" on the licensee's enforcement of site security and cloud its judgment causing it a grant of a security clearance to less than qualified individuals.

    The exact jist of this argument is not precisely clear. While PECO as a nuclear licensee has a special duty to maintain security, and is therefore entitled to do a thorough background check on any individual seeking access to the site, it cannot use this duty to effectively circumvent the ERA by discriminating against employees who have engaged in a protected activity. Congress enacted the ERA in order to encourage employees to come forth and reveal dangerous safety related conditions which exist at nuclear power plants. The ramifications of PECO's argument would effectively gut the employee protections of the ERA and render it meaningless. Because there is no evidence before me as to whether, in fact, PECO has discrimantorily denied a security access clearance to the complainant, a hearing will have to be held.

    PECO's second and third points appear to be so closely related so that they can be discussed together rather than reviewed separately. Basically, PECO claims that the procedure used by Area Director of the Wage and Hour Division was flawed in that the decision failed to make cut a prima facie case under the ERA and that he gave unreviewed findings a res judicata effect.

These flaws according to PECO amounted to violation of due process.

    29 C.F.R. Part 25 sets forth the regulations for processing complaints of employee discrimination under various whistle blower statutes. Section 24.4 provides that upon receipt of a complaint the Administator shall on a priority basis investigate and gather data concerning such case .... to determine whether a violation of the law involved has been committed. Within 30 days of the receipt of a complaint, the Administrator shall complete the investigation, determine whether the alleged violation has occurred and give notice of the determination which shall contain a statement of the reasons for the findings. This determination becomes final unless it is appealed within five days; unless an appeal is taken by telegram to the Chief, Administrative Law Judge requesting a hearing on the complaint.

    I am satisfied that the Area Director's determinations are in compliance with the regulations. He conducted an investigation, issued a determinations and stated the reasons for the determination. Since at the Administrator level, the regulations speak only of an investigation and written determinations with reasons stated for it, the regulations do not contemplate a full blown adversarial proceeding. The regulations ensure due process by allowing the case to be appealed so that a hearing can be held before an Administrative Law Judge. At the hearing level, the parties have a full panoply of due process rights, including conducting discovery prior to the actual hearing. The parties may also present evidence in their own behalf, challenge any adverse evidence including cross-examining hostile witnessess.

    As such as I can find no violation of PECO's due process rights at this point. Even if the Area Director has made serious errors in conducting the investigation and issuing his determination, the proper remedy does not lie in dismissing the complaint against PECO which would only serve to penalize the complainant for mistakes made by the government. There is ample opportunity to correct any defects by the Area Director through a hearing.

    The final point raised by PECO in its motion to dismiss is that it is not the Employer of the Complainant. It alleges that the Act is only intended to cover Employer/Employee relationships. Because the Complainant was an Employee or a potential employee of various independent contractors, and no direct Employer/Employee relationship ever existed between it and complainant, PECO maintains that it cannot be held liable for any sanctions prescribed by the ERA.

    The ERA prohibits an employer from discharging or otherwise discriminating against an employee because the employee has engaged in activities protected by the Act. 42 U.S.C. § 5851. The terms Employer and Employee are not defined by Act. The statutue does however specifically mention that a Commission licensee, an applicant for a Commission license or a contractor or a subcontractor of a Commission license or applicant are included as Employers.

    The Act is unclear as to whether an actual Employer/Employee relationship must exist before an Employee would be protected by the Act. The ERA's legislative history indicates the whistleblower provisions of Section 210 were patterned after similar provisions in the Clean Air Act, 42 U.S.C. § 7622; and the Federal Water Pollution Control Act 33 U.S.C. § 1367, which were patterned after the National Labor Management Act, 29 U.S.C. § 141 and similar provisions in Public Law 91-173 relating to the Federal Coal Mine Health and Safety Act. See 1978 U.S. Code Congressional and Administrative News, p. 7303. In view of this legislative history, Courts have recognized that precedents under the National Labor Relations Act (N.L.R.A.) should be examined in interpreting the meaning of the ERA. See Consolidated Edison Co. v. Donovan, 673 F2d 61, 62 (2d Cir. 1982).

    In ascertaining who is an "Employer," under the NLRA, the actual relations of the parties, not the mere words of their contracts are controlling. The term "Employer," as used in the statute, carries more with it than the technical and traditional common-law definition; it also draws substance from the policies and purpose of the statute, the circumstances and background of particular employment relationships and all the hard facts of industrial life. In doubtful situations the question of whether one is an employer is to be determined by underlying economic facts rather than technically and exclusively by previously established legal classifications. American jurisprudence 2d Vol 48, § 580, 444.

    It has also been recognized that under NLRA, a statutory employer may violate the Act with respect to employees other than his own. See Hudgen v. NLRB 424 U.S. 507, 510 N. 3, 96 S. Ct. 1029, 1032 N. 3, 47 47 LE d. 2d 196 (1976). Similiarly, under the NLRA, employees are not limited to employees of a particular employer. Eastex Inc. v. N.L.R.B., 437 U.S. 556, 98 S. Ct. 2505 (1987) 57 LEd 2d. 428. In addition, employees do not lose their protection under the "Mutual aid or Protection" clause when they seek to improve terms and conditions of employment or otherwise improve their lot as employees through channels outside the immediate employee-employer relationship. Supra. Thus, in view of this precedent, and the remedial nature of ERA it would

appear that narrow interpretion of terms Employer and Employee would be inapplicable in many cases. As a Nuclear Regulatory Commission licensee, an entity specifically named by the Statute, PECO would appear fit as an employer covered by the ERA. Accordingly, PECO is not permitted to engage in activities which cause an employee to be discharged or otherwise discriminated against in the terms and condition of his employment or engaging in a protected activity and even in certain circumstances this would seem to apply to Employees other than its own. The Complainant as a former employee and a potential employee of contractors engaged by PECO to work on its site would appear to be such an Employee who is protected by the Act. Indeed, there is a close connection between PECO and the Complainant's employment.

    Even if a more narrow interpretation is adopted, the complainant's complaint should not be dismissed if an actual Employer-Employee relationship is shown between PECO and the Complainant. This determination will depend upon the degree of control that PECO exercised over the term and conditions of the Complainant's employment; or if the contractors PECO used should be considered its agents. If, as alleged, PECO exercised authority to have the Complainant discharged by denying him access to the plant, it would have exercised a high degree of control over the Complainant's employment. Although other factors must be considered, PECO should not be able to evade liability under ERA and eviscerate the protections through use of contractors. However, I have no evidence before me to determine whether Complainant's allegations are accurate, or to assess the degree of control which PECO exercised on the nature of the Complainant's employment. Accordingly, a hearing is necessary to develop evidence so that these determinations can be made.

Conclusion

    For the reasons mentioned above, PECO's motion to be dismissed is denied. It is my judgment that a hearing should be held promptly so that all parties will have an opportunity to present evidence and that a record can be made and a decision issued on the underlying merits of the complaint. This case has been delayed for many months and it is noted that the regulations prescribe various deadlines for each step in order to ensure that the parties receive a timely decision. Accordingly, further delays are to be discouraged so that this case can be heard and, the spirit of the Act and the Regulations be complied with.¹

       FRANK J. MARCELLINO
       Administrative Law Judge

FJM:ga

¹ PECO recently brought to the attention of this tribunal two matters. The first is a decision by the Eighth Circuit Court of Appeals in Iowa Electric & Power Co. v. Local Union 204 of the International Brotherhood of Electrical Workers (AFL - CIO), Docket Nos 87-1425 and 87-1426 (8th Cir., December 14, 1987), reported in CCH Nuclear Regulation Reports § 20,429. In this case, the Court of Appeals upheld a decision by the District Court which overturned an award by a labor arbritrator reinstating an employee, who had violated safety rules, to his position at his employer's nuclear plant.

    The second matter is a letter from Lando W. Zech , Jr., the Chairman of the Nuclear Regulatory Commission to the secretary of Labor regarding James E. Wells v. Kansas Gas & Electric Co. No. 85-ERA-0022. Chairman Zech stated it would be inappropriate for the Department to order the licensee to grant unescorted access to an individual who has not been shown to satisfy the criteria for the granting of such access.

    Both the Eighth Circuit decision, and Chairman Zech's letter do not alter my decision on PECO's motion to dismiss. There is no dispute that PECO has a duty and a right to maintain security and safety at its facility. However, it cannot use its duty to maintain safety to discriminate against an employee for engaging in a protected activity under the ERA. As I have no information as to whether PECO was acting to protect safety or illegally discriminating against the complainant, a hearing is necessary to develop a record in this case.