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DATE ISSUED: September 17, 1999 CASE NO.: 1999-ERA-13
IN THE MATTER OF
JAMES P. PARKER
Complainant
v.
TENNESSEE VALLEY AUTHORITY
Respondent
ORDER OF REFERRAL AND MEMORANDUM
Came on this date to be considered Complainant's Motion for Reconsideration filed
August 16, 1999.
In Rex v. Ebasco Services, Inc., 87-ERA-6 and 40 (ALJ Apr. 13, 1994) the
administrative law judge found that under Tankersley v. Triple Crown Services, Inc., 92-STA-8
(Sec'y Feb. 18, 1993), jurisdiction passes from the presiding judge to the Secretary of Labor after a decision
is issued in this type of case. Consequently, an Administrative Law Judge does not have authority to rule on a
motion for reconsideration. Accordingly, because Parker was not remanded to this Court, this Court
herein enters an ORDER OF REFERRAL to the Secretary.
Although the motion is not properly before this Office as a procedural matter, this Court
will address the issue of protected activity under the ERA. Complainant argues that the facts of this case are
analogous to those in Stone & Webster Engineering Corp. v. Herman, 115 F.3d 1568 (11th Cir.
1997), wherein the Court held that a worker's communications to co-workers regarding fire safety in the drywell
of the Browns-Ferry nuclear reactor were protected activity. However, the instant case can be distinguished
from Stone as the complaints herein do not concern fire safety in the Browns-Ferry nuclear plant, but
rather address fire safety issues in the switchyard outside the plant. Therefore, Complainant's safety related
activity does not relate to nuclear safety protected under 42 U.S.C. § 5851. Because Complainant's
safety-related activity is not related to nuclear safety it is unprotected under the Act and the Court would deny
the motion for reconsideration if it had jurisdiction.
It is therefore ORDERED, ADJUDGED, AND DECREED that this case
is REFERRED to the Secretary for further action.
ENTERED this 17th day of September, 1999 at Metairie, Louisiana.
