DATE: March 23, 1989

CASE No. 89-ERA-18

In the Matter of

SHANNON T. DOYLE
    Complainant

    v.

BARTLETT NUCLEAR SERVICES
    Respondent

    Complainant filed a complaint under the Energy Reorganization Act of 1974, as amended, 42 U.S.C. § 5801, et seq. (ERA) and its implementing regulations found at 29 C.F.R. Part 24. The only issue is whether Respondent, Bartlett Nuclear Services, an employment agency for nuclear plants, is a proper respondent under the Act and regulations.

    Complainant alleges that he has been blacklisted by Alabama Power Company (APCO) because of his contacts with the Nuclear Regulatory Commission (NRC) with respect to certain concerns of his while employed at the J. M. Farley Nuclear Plant. His complaint against APCO is the subject of another case now pending before the Secretary of Labor (Doyle v. Alabama Power Company, 87-ERA-43).

    In the instant case, Complainant alleges that he has attempted to obtain employment through Bartlett Nuclear Services, a company which supplies support personnel to nuclear

facilities. He alleges that he was advised by a representative of that concern that he was not accepted at a nuclear facility in Georgia because of the utility's inability to gather a reference from APCO. Complainant alleges that he was, likewise, not accepted to work at the Robinson Nuclear Plant in South Carolina, presumably for the same reasons.

    The Act and its implementing regulations prohibit discrimination against an employee by an employer. Included in the list of prohibited activities by an employer is blacklisting. See 29 C.F.R. § 24.2(b). None of the regulations, however, nor the Act itself speak to jurisdiction with respect to potential employers, employment agencies or applicants. This situation is unlike the situation presented by Title 7 of the Civil Rights Act of 1964 which has been interpreted to extend protection to job applicants. See Sibley Memorial Hospital v. Wilson, 488 F.2d 133 (D.C. Cir. 1973).

    In Sibley, the Court ruled that the term "any individual" referred to in 42 U.S.C. § 200e(2)(a)(1) reached beyond an employer-employee relationship and affords protection absent such a relationship. Similarly, the Federal Age Discrimination in Employment Act of 1967 extends coverage to include an applicant for employment by virtue of the implementing regulation found at 29 C.F.R. § 860.30. As indicated above, there are no such provisions in connection with the Energy Reorganization Act which would extend coverage to applicants. The Act and implementing regulations speak only of employees and not to "individuals" or "aggrieved persons". Accordingly, the action brought herein against Bartlett Nuclear Services is misplaced and said entity is an improper party to this proceeding.

    It would appear, then, that Complainant's remedy would have been to allege the continuing violation theory with respect to blacklisting against Alabama Power Company in connection with the alleged incidents in question. See Order of Remand dated April 20, 1987 in the matter of Edward C. Egenrieder v. Metropolitan Edison Co./G.P.U.

    For the reasons stated, it is Ordered that the instant complaint be dismissed against Bartlett Nuclear Services.

       A. A. SIMPSON, JR.
       Administrative Law Judge