U.S. Department of Labor
Office of Administrative Law Judges
CASE NO: 89-ERA-00021
DATE: May 21, 1990
IN THE MATTER OF
DONALD E. HADDEN
Plaintiff
v.
GEORGIA POWER COMPANY
Respondent
Daniel I. Oshtry, Esq.
Stephen M. Kohn, Esq.
For the Plaintiff
Jesse P. Schaudies, Jr., Esq.
For the Respondent
BEFORE: Richard E. Huddleston
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This proceeding arises under the Energy
Reorganization Act of 1974, as amended ("ERA"), 42
U.S.C. § 5851 (1982), and the implementing
regulations at 29 C.F.R. Part 24. The ERA in
§ 5651(a), prohibits a Nuclear Regulatory Commission
("NRC") licensee from discharging or otherwise
discriminating against an employee who has
engaged in protected activities set forth in the
Act.
This Case arises as a result of a complaint
filed by Donald Hadden alleging that, in retaliation
for protected activities, he has been placed upon a
permanent bar list for any Georgia Power Co.
construction or maintenance projects. The file
[Page 2]
contains an unsigned, typewritten complaint dated
20, 1988, but no official indication of
whether such was filed with the Department of
Labor. On January 5, 1989, Mr. Hadden filed a
handwritten complaint with Tonney E. Young,
Compliance Office, U.S. Department of Labor,
Wage and Hour Division. On February 16, 1989,
Milton R. Halbert, District Director, Employment
Standards Administration, notified Mr. Hadden as
to the results of the investigation of his complaint.
By telegraph message to the Chief Administrative
Law Judge, dated February 21, 1989, Mr. Hadden
appealed the determination of Mr. Halbert and
requested a formal hearing before the Office of
Administrative Law Judges.
1Exhibits PX 3 and PX 21 were
rejected. See, Transcript at
pages 64 and 438 respectively.
2Defendant's exhibit 10 was a
metal bar and bolts and was
withdrawn for substitution of the photographs received on June
7, 1989 by agreement.
3The subject of these NRC
concerns was "Welding being
done without proper paperwork on HVAC units at Plant
Vogtle". (PX 1 and 2).
4The parties not disagreed that a
DOL complaint was filed
on February 12, 1986. However, the record does not establish
such. See the tendered exhibit PX 3 which was not admitted,
but which purports to describe the terms of settlement of that
complaint.
6 The 4th Circuit also had
considered the claim filed by
Plaintiff English under the ERA. See, English v. Whitefield, 858
F.2d 957 (4th Cir. 1988) considering 85-ERA-2.
11See, Published Decisions
of the Office of Administrative
Law Judges and Office of Administrative Appeals at Volume 3
number 3, page 257 (3 OAA 3 at 257), (SOL May 24, 1989).
12See, PX 22, page 40, citing
Egenerieder v. Metropolitan
Edison Co., 85-ERA-23, Order of Sec. of Labor (April 6, 1987).
14Id at 426 citing
Delaware State College v. Ricks, 449 U.S.
250 (1980). and United Air Lines v. Evans, 431 U.S. 553
(1977).
15Blacklist. A list of
persons marked out for special
avoidance, antagonism, or enmity on the part of those who prepare
the list or those among whom it is intended to circulate; as
where a trades-union "blacklists" workmen who refuse to
conform to its rules, or where a list of insolvent or untrustworthy
persons is published by a commercial agency or mercantile
association. Blacks Law Dictionary 154 (5th ed. 1979).
16Formal rules of evidence have
subsequently been made
applicable under 29 C.F.R. Part 18, Rules of Practice and
Procedure for Administrative Hearings before the Office of
Administrative Law Judges. See, Federal Register, Vol. 55 No. 68,
April 9,1990.
17Respondent's brief (DX 27) at
page 57 citing 29 U.S.C. § 159(a) and Restatement 2d, Agency § 9(3).