After careful analysis of the evidence contained in the record and the arguments advanced by the parties, I conclude that the complaint must be dismissed as Respondent is not a proper respondent under the environmental whistleblower protection provisions contained in the CERCLA, the SWDA and the implementing regulations. My findings of fact and conclusions of law are set forth below.

   The Complainant, David Vincent, was a very sincere and credible witness. In the few instances where there is any conflict in the testimony elicited at the hearing, I have relied on the Complainant's account. The Complainant testified that he has been a member of the Laborer's International Union of North America since 1985. Tr. 355, l.8-12. In 1992, he became a member of Respondent. Tr. 355, l.1-7.

   In January of 1998, the Complainant was hired by the Roy F. Weston Company ("Weston") to work as a laborer at the Hanford Work Site (the "Hanford Site"). Tr. 354, l.12-21. At the Hanford Site, which was described at the hearing as an environmental waste remediation project, the Complainant was employed to clean contaminated soil and place the soil in containers to be shipped to a waste disposal site. Tr. 355, l.16-20. After he was hired by Weston, the business manager of Respondent appointed the Complainant as the Union's shop steward at the Hanford Site. Tr. 489, l.7-25; Tr. 490, l.1-3. As a shop steward, the Complainant served as Respondent's representative at the Hanford Site where he was responsible for acting as liaison between the members of the union and the employer, Weston. Tr. 494, l.9-13. The Complainant's work as a laborer at the Hanford Site was supervised and managed by Foreman Dan Charron ("Charron"). Tr. 488, l.16-21. Charron's position as Foreman was given to him by the employer, Weston, and was independent of his responsibilities as a member of Respondent. Tr. 487, l.6-15.

   In the course of his employment at the Hanford Site, the Complainant and another employee, Matthew Taylor, began reporting health and safety violations to the Department of Energy ("DOE"). Tr. 356, l.20-25. Taylor was employed by Weston as a truck driver and was represented by another labor organization, the International Brotherhood of Teamsters Local 690 (the "Teamsters"). Tr. 46, l.11-12. Thereafter, tension developed between the Complainant and Charron, culminating in the Complainant walking off the Hanford Site and refusing to work with Charron for personal safety reasons. Tr. 375, l. 2-12. An investigation was conducted into the incident, and Weston terminated Charron's employment on September 24, 1999, for allegedly retaliating against the Complainant because of his reports to the DOE. RX 1. Charron filed a grievance against Weston under the Respondent's collective bargaining agreement in response to his termination. Tr. 503, l. 21-23.

   On October 19, 1999, Respondent removed the Complainant as a steward at the Hanford Site based on charges that he had made a false accusation against another union member, Charron, and that he had lost the support of his fellow laborers. Tr. 494, l.14-19. Respondent notified Weston management of the Complainant's removal as steward and the name of the individual who would be replacing the Complainant. Tr. 394, l.15-21. Weston had no involvement in Respondent's decision to revoke the Complainant's stewardship. Tr. 490, l.22-25; Tr. 491, l.1-2.

   On November 12, 1999, after a hearing before the Respondent's Executive Trial Board on the two charges brought against him, Respondent made a determination that the Complainant would not be considered for stewardship in the future. CX. 3. After walking off the Hanford Site because of the increasing conflict with Charron, the Complainant voluntarily returned to work as a laborer for Weston. Tr. 444, l.3-5. Respondent's decisions to remove the Complainant as a steward on the Hanford Site and to ban him from future assignment as a steward had no effect on his employment status with Weston or his pay or benefits. Tr. 491, l.3-13.

   On December 8, 1999, the Complainant filed a complaint against Respondent alleging that his removal as steward and the ban on future stewardship appointments constitute unlawful discrimination in retaliation for his involvement in reporting health and safety concerns to the DOE.

   The complaint in this matter raises a threshold issue as to whether Respondent, a labor organization, is a proper party respondent under the SWDA or the CERCLA. The starting point for this inquiry is the language of the statutes which is notable for the absence of any reference to labor organizations or unions. The SWDA in pertinent part prohibits certain employment discrimination by a "person":

No person shall fire, or in any other way discriminate against, or cause to be fired or discriminated against, any employee or any authorized representative of employees by reason of the fact that such employee or representative has filed, instituted, or caused to be filed or instituted any proceeding under this chapter or under any applicable implementation plan, or has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this chapter or of any applicable implementation plan.

42 U.S.C. §6971(a) (italics added). "Person" is defined in the SWDA as "an individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, United States Government, State, municipality, commission, political subdivision of a State, or any interstate body." 42 U.S.C. §6903(15).

   Though the SWDA and the CERCLA prohibit discrimination by a "person", which is a broader term than "employer" as used in the ERA, the above-quoted definitions of "person" in the SWDA and CERCLA, like the definition of "employer" in the ERA, do not include any reference to a labor organization. Moreover, a labor organization can not reasonably be considered to be an "individual" or a "firm" or a "partnership" or an "association" or any other subspecies of "person" enumerated in the SWDA and the CERCLA based on the established meanings of those terms. See Community for Creative Non-violence v. Reid, 490 U.S. 730, 739 (1989) ("[w]here Congress uses terms that have accumulated settled meaning under . . . common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms."). That a labor organization does not fall within the SWDA and CERCLA definitions of "person" is emphasized by the fact that Congress has specifically included the term "labor organization" or "labor union" in the definition of "person" when it intends to make legislation applicable to unions. See e.g., National Labor Relations Act, 29 U.S.C. §152(1) (defining person as including "one or more individuals, labor organizations, partnerships, associations, corporations, legal representatives, trustees, trustees in bankruptcy, or receivers") (italics added); Title VII of the Civil Rights Act, 42 U.S.C. §2000e(a) (anti-employment discrimination provisions stating that the "term person' includes one or more individuals, governments, governmental agencies, political subdivisions, labor unions, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in cases under title, or receivers" (internal quotation marks in text; italics added); Title VIII of the Civil Rights Act, 42 U.S.C. §3602(d) (fair housing provisions which define a person as "one or more individuals, corporations, partnerships, associations, labor organizations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in bankruptcy, receivers, and fiduciaries") (italics added); Federal Election Campaign Act, 2 U.S.C. §431(11) (defining person to include "an individual, partnership, committee, association, corporation, labor organization, or any other organization or group of persons") (italics added). Regarding these definitional dissimilarities, the Secretary of Labor has held that the significant language differences between Title VII and the environmental whistleblower statutes result in a "textual asymmetry" that makes it "inappropriate . . . to read the breadth of Title VII's coverage into the environmental whistleblower provisions." Reid v. Methodist Medical Center, USDOL/OALJ (HTML), ALJ No. 1993-CAA-4 at 10 (April 3, 1995) (declining to apply Title VII's more expansive protection to an individual who was not an employee of an employer).

   Based on the language of the SWDA and the CERCLA and the implementing Regulations, I conclude that a labor organization such as Respondent is not a covered respondent in a whistleblower discrimination case unless the union is acting as an employer in relation to the complaining employee. I will now turn to the question of whether the Claimant has shown that Respondent was acting as his employer in this case.

   At the hearing, the Complainant stipulated to the fact that he was not an employee of Respondent. Tr. 490, l.6-16. The regulations governing proceedings before the Office of Administrative Law Judges state that stipulations "when received in evidence, shall be binding on the parties thereto." 29 C.F.R. §18.51. Stipulations made by parties in whistleblower litigation are enforceable unless contrary to public policy. Doyle v. Hydro Nuclear Services, USDOL/OALJ Reporter (HTML), ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 at 14 (ARB May 17, 2000); Tritt v. Fluor Constructors, Inc., USDOL/OALJ Reporter (HTML), ALJ No. 1988-ERA-29 at 1-2 (Sec'y May 31, 1995), appeal dismissed sub nom Fluor Constructors, Inc. v. Reich, 111 F.3d 94 (11th Cir. 1997). The Complainant has made no assertion that holding him to his stipulation would be against public policy, and it does not appear that enforcement of this stipulation, which was freely entered into at the hearing and which, as discussed below, is consistent with the evidence of record, would run counter to any policy concerns. Therefore, I conclude that the stipulation is enforceable, and I find that the Complainant was not an employee of Respondent at any time relevant to the issues raised by his complaint.

   Although the existence of an "employment relationship . . . is essential" to a environmental whistleblower complaint, the stipulated absence of a direct employer-employee relationship between the Complainant and Respondent, however, is not necessarily fatal to his complaint since the Administrative Review Board has held that the environmental whistleblower protections may extend beyond an employee's immediate employer to another employer, notwithstanding the fact that the other employer does not directly compensate or immediately supervise the employee. Stephenson v. NASA, USDOL/OALJ (HTML), ARB No. 98-025, ALJ No. 1994-TSC-5 at 11 (ARB July 18, 2000); Williams v. Lockheed Martin Energy Systems, Inc., USDOL/OALJ (HTML), ARB No. 98-059, ALJ No. 1995-CAA-10 at 9 (ARB January 31, 2001). The question in such cases is "did [the Respondent] act as an employer with regard to the Complainant . . . by exercising control over production of the work product or by establishing, modifying or interfering with the terms, conditions or privileges of employment." Stephenson v. NASA, 1994-TSC-5 at 11.

   A review of the record reveals that the Complainant has provided no evidence and has alleged no facts which would support a finding that Respondent acted as his employer. In fact, the Complainant's credible testimony compels a contrary conclusion. That is, the Complainant candidly acknowledged during his testimony that he considered Weston to be his employer. Tr.354, l.12-21; 355, l.13-16; 443, l.15-17. In addition, the record establishes that Respondent's decisions to remove Complainant as a steward and to bar him from future appointments as a steward had no impact on the terms, conditions or privileges of his employment at the Hanford Site. Tr. 491, l.3-13. Finally, the record establishes that Respondent did not: (1) hire the Complainant; (2) manage or supervise him or the work that he performed; (3) pay him for the work he performed; or (4) withhold payments for his taxes. Tr. 490, l.6-8; 454, l.10-21; 443, l.24-25; 444, l.1-2; 490, l.9-11. On these uncontradicted facts, I find that Respondent did not act as the Complainant's employer either directly or in a hierarchical employment context.

   Having determined that Respondent did not exercise control over production of the work product nor did it establish, modify or interfere with the terms, conditions or privileges of the Complainant's employment, I conclude, to paraphrase the late Judge Chester Shatz's words in Delcore, that the complaint must be dismissed "since the Respondent/union is not an employer within the meaning of the . . . anti-discrimination provisions." Delcore v. International Brotherhood of Electrical Workers, USDOL/OALJ Reporter (HTML), ALJ No. 1991-ERA-7 at 1 (ALJ December 4, 1990).

   Based upon the foregoing Findings of Fact and Conclusions of Law and upon the entire record before me, the instant complaint against Laborers' International Union Local 348 is DISMISSED.

SO ORDERED.

      DANIEL F. SUTTON       Administrative Law Judge

Boston, Massachusetts
DFS:cmm

   NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. §24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See C.F.R. § § 24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).