ZACK COMPANY OF CHICAGO
(MIDLAND NUCLEAR POWER PLANT,
MIDLAND MICHIGAN),
Employer
DECISION DENYING MOTION TO DISMISS
This is a proceeding under Section 5851 of the Energy
Reorganization Act (42 U.S.C. § 5851) seeking a remedy for
alleged discrimination against an employee purportedly
resulting from his assisting or participating in enforcement
of provisions of said Act. Employer moves to dismiss the
proceeding on the grounds that the complaint was not served within
thirty (30) days after the alleged act of discrimination and
that the Secretary of Labor did not issue an order thereon
within ninety (90) days of the receipt of such complaint.
The facts set forth below appear from the papers
submitted on this motion.
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In January, 1980, Complainant was employed as a Quality
Control Inspector of the heating ventilation and air
conditioning systems being installed by Employer at the Midland
Nuclear Plant in Midland, Michigan. Upon observing what he
perceived to be defective work violative of the Act, he
reported such deficiency to his supervisor and thereafter to
the Nuclear Regulatory Commission (NRC). On or about
February 20, and March 12, 1980, Complainant met with
representatives of the NRC and reported the alleged violation.
On or about March 17, 1980, Complainant was questioned by
officials of the Employer as to whether or not he had made
a complaint to the NRC.
On March 19, 1980, Complainant was suspended for thirty
days without pay for allegedly taking company documents off
the premises. On April 20, 1980, Complainant was discharged.
On March 20, 1980, the day following his suspension,
Complainant orally reported such suspension to representatives
of NRC and was referred to the U.S. Department of
Labor's Occupational Safety and Health Administration (OSHA).
Upon Complainant's telephone call to the Baltimore Operations
Review Office of OSHA, a written memorandum of his discrimination
complaint was filed on OSHA Form 82, stating as his
allegation that "Dartey was falsely accused of attempting to
take documents off the worksite and suspended as he had filed
a complaint resulting in a NRC inspection", and certifying that
the complaint was filed on March 20, 1980. Under date of
April 7, 1980, Employer was notified in writing by OSHA that a
complaint had been filed by Complainant" alleging a violation
of Section 11(c) of the Occupational Safety and Health Act,
Public Law 91-596", the allegation being "that he was given work
suspension(s) as a result of making safety complaints to the
Nuclear Safety [sic] Commission."
On August 13, 1981, Complainant submitted a written
confirmation of his complaint to the U.S. Department of Labor's
Wage and Hour Division in Grand Rapids. Under date of
September 11, 1981, the Wage and Hour Division notified the Employer
of Complainant's complaint alleging discriminatory employment
practices in violation of the Energy Reorganization Act, stating:
"This charge was received by our office on August 24, 1981". On
November 10, 1981, the Wage and Hour Division notified Employer
that it had been found to have suspended, and subsequently
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terminated, Complainant in violation of the Act. That notice
stated, inter alia: "As you know Dean Dartey filed a complaint
with the Secretary of Labor under the Energy Reorganization Act on
3/20/80 and 8/24/81."
On or about April 20, 1981, the Manager of Quality Control
at Employer's Midland facility resigned and has not since been
employed by Employer.
Upon the foregoing facts, which are uncontroverted for
purposes of this motion, neither of Employer's contentions
can prevail. Pertinent provisions of Section 5851 of the
Energy Reorganization Act are as follows:
§ 5851. Employee protection
Discrimination against
employee
(a) No employee, including a Commission licensee, an applicant for a
Commission license, or a contractor or a subcontractor of a Commission
licensee or applicant, may discharge any employee or otherwise discriminate
against any employee with respect to his compensation, terms, conditions,
or privileges of employment because the employee (or any person acting
pursuant to a request of the employee)-
(1) commenced, caused to be commenced, or is
about to commence
or cause to be commenced a proceeding under this chapter or the
Atomic Energy Act of 1964, as amended, or a proceeding for the
administration or enforcement of any requirement imposed under this
chapter or the Atomic Energy Act of 1954, as amended;
(2) testified or is about to testify in any such proceeding
or;
(3) assisted or participated or in about to assist or
participate in
any manner in such a proceeding or in any other manner in such a
proceeding or in any other action to carry out the purposes of this
Act or the Atomic Energy Act of 1954, as amended.
Complaint, filling and
notification
(b) (1) Any employee who believes that he has been discharged or
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otherwise discriminated against by any person in violation of subsection (a)
of this section may, within thirty days after such violation occurs, file (or
have any person file on his behalf) a complaint with the Secretary of Labor
(hereinafter in this subsection referred to as the "Secretary") alleging
such discharge or discrimination. Upon receipt of such a complaint, the
Secretary shall notify the person named in the complaint of the filing of
the complaint and the Commission.
(2) (A) Upon receipt of a complaint filed under paragraph
(1), the Secretary shall conduct an investigation of the violation alleged in the
complaint. Within thirty days of the receipt of such complaint, the Secretary
shall complete such investigation and shall notify in writing the complainant
(and any person acting in his behalf) and the person alleged to have
committed such violation of the results of the investigation conducted
pursuant to this subparagraph. Within ninety days of the receipt of such
complaint the Secretary shall, unless the proceeding on the complaint is
terminated by the Secretary on the basis of a settlement entered into by the
Secretary and the person alleged to have committed such violation, issue an
order either providing the relief prescribed by subparagraph (B) or denying
the complaint. An order of the Secretary shall be made on the record
after notice and opportunity for public hearing. The Secretary may not
enter into a settlement terminating a proceeding on a complaint without
the participation and consent of the complainant.
The purpose of this and other employee protection or
"whistle-blower" statutes is to encourage enforcement of
laws designed to safeguard the health and welfare of the
community as well as the individuals directly involved. The
objective is to eliminate the fear of employer retaliation,
so that employees may freely report apparent violations with
a view to vigilant policing and salutary enforcement of the
law pro bono publico. Consequently, in setting very short
time limitations, the primary intention was not to prevent
the prosecution of stale claims, but rather to provide
a quick and efficacious remedy for an employee who may have
been wrongfully thrown out of a job. The statute must be
construed accordingly.
In the first place, it has not been shown that there
has been any violation of the precise terms of the statute
insofar as the filing of a complaint is concerned. Bearing
in mind that OSHA is not an independent government agency,
but is a component part of the Department of Labor, there
was literal compliance with paragraph (b)(1) of Section 5851
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mandating that within thirty days after such violation occurs,
one may "file ... a complaint with the Secretary of Labor".
True, Departmental regulations (29 CFR § 24.3) require
that the complaint must be in writing and may be filed in
person or by mail with the Office of the Administrator of
the Wage and Hour Division, Employment Standards Administration,
U.S. Department of Labor. The OSHA memorandum of the
discrimination complaint on March 20, 1980, however, constitutes
compliance with the regulatory requirement of a writing,
since it has been expressly held that where a claim must be
filed in writing, a written memorandum filed by or for the
recipient of a telephone call is sufficient. Firemen's
Fund Insurance Co. v. Bergeron, 493 F.2d 545 (5th Cir. 1974).
The provision in the regulation for filing with the Wage and
Hour Division is clearly directory only, not mandatory.
Under the circumstances, a filing in the wrong office of the
right Department is not fatal, and the regulatory limitation
is tolled. See Morgan v. Washington Manufacturing Co.,
660 F.2d 710 (6th Cir. 1981).
It cannot be disputed that the ninety-day provision for
disposition of the claim was not complied with by the Secretary
or the Department of Labor. Mindful, however, of the prime
purposes referred to above, the Employer can hardly be regarded
as a party aggrieved by such noncompliance. The expedited
procedure is designed to minimize the hardship that might result
to the employee, not to provide a technical "out" for the
employer.
The papers in support of the motion are notable for their
ringing rhetoric (e.g., "The expansiveness of this argument
is breathtaking.") and mixed metaphors (e.g., "the scenario
painted by Complainant"), but the vital substantive question
of due notice is dealt with only in terms of the incorrect
statutory reference. The fact is that on or about April 7,
1980, the Employer was fully apprised of the nature of
Complainant's charge that he had been discriminated against because he
had "blown the whistle" on Employer by reporting to
governmental authorities. Section 11(c) of the Occupational Safety
and Health Act, Public Law 91-596 [29 U.S.C. § 5660(c)],
referred to by OSHA, is for all practical purposes much the
same in content as Section 5851. Consequently, Employer was
aware that Complainant had called the attention of the NRC to
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the alleged deficiencies, and it knew within thirty days of
his suspension that he had complained to the Department of
Labor of the purported discriminatory action by reason thereof.
Employer knew then what it had to contend with, and it is not
unreasonable to infer from the careful language of its
discharge telegram on April 20, 1980, that its defense had
begun to take shape.
Resort to the resignation of the Quality Control Manager,
a material witness, as a basis of prejudice resulting from the
delay, appears to be sham. In a vain attempt to create the
impression that managers who resign their posts vanish into
thin air like migrant farm workers after the crop is harvested,
Employer submits an artfully worded affidavit of its president
to the effect that she has not talked or otherwise been in
communication with the manager and has "no direct knowledge of
his present employment (if any) or whereabouts." She adds
gratuitously that she has no knowledge of whether he would be
released by his present employer (if any) for the purpose of
testifying. Conspicuous by its absence, however, is any
reference to his last known address, or the place where his W-2
Forms are sent, or what efforts (if any) have been made to
locate him. No showing has been made that he is no longer
available.
The motion to dismiss is in all respects denied.
Accordingly, the stay of proceedings contained in the Order
to Show Cause dated December 14, 1981, has now expired.
Notice of a rescheduled hearing will issue in due course.
Dated at Washington, D.C. this 29th day of January, 1982.
