U.S. Department of Labor
Office of Administrative Law Judges
Seven Parkway Center
Pittsburgh, Pennsylvania 15220
DATE ISSUED: April 9, 1986
Case No. 86-ERA-11
In the Matter of
W. ALLAN YOUNG
v.
E. H. HINDS
Appearances:
James L. Cowden, Esq.
For the Complainant
Thomas F. McInerney, Esq.
For the Respondent
Before: THOMAS M. BURKE
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This is a proceeding brought under the Energy Reorganization
Act of 1974 ("ERA"), 42 U.S.C. § 5851 and the regulations
promulgated thereunder at 20 C.F.R. Part 24. These provisions
[Page 2]
protect employees against discrimination for attempting to carry
out the purposes of the ERA or of the Atomic Energy Act of 1954,
as amended, 42 U.S.C.A. § 2011, et seq. The Secretary of Labor
is empowered to investigate and determine "whistleblower"
complaints filed by employees at facilities licensed by the
Nuclear Regulatory Commission ("NRC") who are discharged or
otherwise discriminated against with regard to their terms and
conditions of employment for taking any action relating to the
fulfillment of safety or other requirements established by the
NRC for the construction and operation of nuclear power plants.
In this proceeding the Complainant, W. Allan Young, contends
that he was discharged from employment by the Respondent, E. H.
Hinds, because he had engaged in protected activity, that is, had
reported conditions which he believes could lead to unnecessary
exposure to radiation or otherwise violate Nuclear Regulatory
Commission regulations. The Area Director of the Wilkes-Barre,
Pennsylvania, regional office of the Employment Standards
Administration, U.S. Department of Labor, dismissed the complaint
without an investigation on the grounds that the Complainant was
not an "employee" within the meaning of the ERA.
The Complainant appealed his complaint on December 13, 1985
to the Office of Administrative Law Judges. A conference was
held by telephone on January 7, 1986 between counsel for the
Complainant, counsel for the Respondent, E. H. Hinds, and the
undersigned presiding administrative law judge. Counsel for the
parties agreed to attempt to stipulate to the relevant facts
thereby alleviating the need for a hearing; however, they were
unsuccessful and a hearing was held in Harrisburg, Pennsylvania,
on March 20, 1976.
The Complainant waived the speedy decision provisions of 29
C.F.R. Part 24 for 120 days to allow both parties an opportunity
to investigate their cases and to attempt to agree on the facts.
In accordance with the requirements of Part 24, as relaxed by the
partial waiver, this Recommended Decision and order is to be
issued on or before April 9, 1979, and the action of the
Secretary of Labor is due on or before June 12, 1986.
The parties agreed that the sole issue to be decided at this
time is whether the Complainant could be considered as an
"employee" under the employee protection provisions of the ERA.
It was agreed that if a determination is made that the
[Page 3]
Complainant's situation is covered by the ERA, then the
complaint would be remanded to the Employment Standards Administration
of the U.S. Department of Labor for an investigation of
the facts alleged by the Complainant in his complaint.
Complainant is a pipefitter and welder who obtains employment
through a job referral system arranged between his local
union, the Plumbers and Pipe Fitters 520, the International Union
and the companies that contract their services to the
Philadelphia Electric Company ("PECO") at its Peach Bottom Atomic
Power Station in Delta, Pennsylvania. The contracting companies
that are in need of plumbers or pipefitters for a short duration,
contact Union Local 520, who assign workers to the job from an
"out-of-work list."
Complainant was contacted by Local 520 and told to report to
the Peach Bottom Plant on August 13, 1985, to work as a pipefitter
for the Respondent E. H. Hinds, a contracting company
that performs maintenance work for PECO. Complainant arrived at
about 7:10 a.m., on August 13, 1985, at the power plant, and
along with other workers from the union hall, met with
Respondent's general foreman and job steward. Complainant and
the other workers were escorted to a training classroom where
they filled out payroll forms, including the W-4, Internal
Revenue Service, Employee Withholding Certificate Form.
Approximately one-half hour later, Complainant was given a
"payroll removal notice" by a representative of the Respondent.
The notice stated that Complainant was discharged because of a
lack of a security clearance. Complainant was also given a
paycheck to compensate for the time he spent at the plant.
Complainant was again referred by Local 520 to the
Respondent on October 15, 1985; this time as a pipefitter. He
arrived at Peach Bottom with four or five fellow workers from
Local 520. He again filled out the payroll forms and was
escorted to a classroom for training. About 15 minutes into the
class, Complainant was paged by a superintendant for the
Respondent and again given the "payroll removal notice" form
which stated that he was discharged for "no site clearance."
Complainant was also given a paycheck for $29.68. Complainant
spent about two hours at the plant.
Complainant files his complaint under the employee
protection provisions of the ERA which provides:
[Page 3]
"(a) Discrimination against employee. No
employer, including a Commission Licensee, an
applicant for a Commission license, or a
contractor or 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 person
acting pursuant to a request of the
employee)--
(1) Commenced, cause to be commenced, or
is about to commence or cause to be commenced
proceeding under this Act or the Atomic
Energy Act of 1954, as amended, or a proceeding
for the administration or enforcement of
any requirement imposed under this Act, or
the Atomic Energy Act of 1954, as amended;
(2) Testified or is about to testify in
any proceeding; or
(3) Assisted or participated or is about
to assist or participate in any manner in
such a proceeding or in any other action to
carry out the purpose of this Act or the
Atomic Energy Act of 1954, as amended."
42 U.S.C. § 5851(a).
There is no question that the Complainant had engaged in
activity protected by the ERA prior to his dismissals by the
Respondent. The Complainant was employed prior to June 1983, as
a welder for Frank W. Hake, Inc., a contractor for PECO at the
Peach Bottom Power Plant. While employed by Hake, Complainant
complained that protective shielding procedures were contrary to
safety standards. Complainant was discharged by Hake on June 10,
1983. After an investigation, the Administrator, Employment
Standards Administration, found that the Complainant's complaints
about radiation exposure were a motivating factor in his
termination. Hake appealed the determination to the office of
Administration Law Judges. Complainant and Hake reached a
settlement and the charge was withdrawn.
[Page 4]
In 1984, Young was employed at Peach Bottom as a general
foreman by the Great Atlantic and Pacific Pipe Welding and
Construction Company ("GAPCO"). On July 19, 1984, GAPCO
terminated Complainant's employment. The Department of Labor
determined after an investigation that the Complainant was
discharged soon after reporting to his employer and an on site
ALAA administrator conditions which he believed were violations
of NRC regulations. The Department of Labor found that GAPCO had
violated the employee protection provisions of the ERA and
ordered GAPCO to rehire Complainant and take other specific
remedial actions. GAPCO appealed the order to the Office of
Administrative Law Judges. Before a hearing could be scheduled,
the Complainant withdrew his complaint.
Complainant engaged in protected activity and was later
discharged from employment for reasons that he believes were
motivated by his protected activity. However, the Employment
Standards Administration denied his complaint on the basis that
the employee protection provisions provide no basis for a
complaint against a prospective employer.
After a review of the facts and the applicable law, it is
determined that the employee protection provisions of the ERA do
extend to the situation at hand as Complainant was an employee of
the Respondent at the time he was discharged.
The term "employee" is not defined by the
"ERA" and no case
law has developed on when the employer/employee relationship
commences for purposes of the ERA. There has developed, however
a body of case law interpreting "employee" in a comparable
provision of the National Labor Relations Act ("NLRA"). The NLRA
includes a provision intended to protect employees who report
violations or otherwise exercise their rights by making it
unlawful for an employee:
"To discharge or otherwise discriminate
against an employee because he has filed
charges or given testimony under the Act."
28 U.S.C. § 158(a)(4).
The ERA employee protection provision was patterned after the
employee protection provision of the NLRA. See, S. Rep. No. 848,[Page 6]
95th Cong. & Admin. News 7303. They share a broad, remedial
purpose of protecting workers from retaliation based on their
concerns for safety and quality. C.f., Donovan v. Stafford
Construction Co., 732 F.2d 954 (D.C. Cir. 1984).
Initially, in order to effectuate the purpose of the
employee protection provisions of the ERA, the term "employee"
must be interpreted broadly. The provision is designed to
encourage employees to report unsafe conditions at nuclear sites
by guaranteeing employees that they will not later be subject to
reprisals.
"Employee" has been defined liberally by the courts in
implementing the NLRA since the United States Supreme Court held
in Phelps-Dodge Corp. v. NLRB, 313 U.S. 177, 61 S. Ct. 845, 85
L.Ed 1271 (1941), that job applicants who had previously engaged
in political activities are considered "employees" under the
States Supreme Court's liberal interpretation of "employee' in
in Time-O-Matic, Inc., v. NLRB, 264 F.2d 96 (7th Cir. 1959), when
it held that coercive statements to job applicants is a violation
of the NLRA. The Court found that: "A violation of Section
8(a-)(11 of the Act was complete when the statements were made to
prospective employees who are employees for purposes of the Act."
The Eighth Circuit Court of Appeals in Reliance Insurance
Companies v. NLRB, 415 F.2d 1 (8th Cir. 1969) held that a job
applicant who is discriminated against because he was engaged in
protected activities is an "employee" within the meaning of the
Act.
In John Hancock Mutual Life Insurance Co. v. NLRB, 191
F.2d 483 (D.C. Cir. 1951), the court discussed a prospective
employee's coverage under the employee protection provisions of
the NLRA. A job applicant was refused employment as an agent for
an insurance company because when previously employed by the same
insurance company he had filed charges under the NLRA and had
testified before the National Labor Relations Board. In the
unfair labor practice proceeding before the NLRB, the
petitioner company defended on the grounds that: (1) the
employee was not an "employee" within the meaning of the NLRA
when he applied for the job as an agent; and (2) that a refusal
to hire an applicant is not a form of proscribed discrimination.
With respect to the defense that an applicant is not an
"employee," the Court held that the NLRA's employee protection
provision extends protection to applicants who had previously
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filed charges or testified in proceedings under the NLRA. The
Court found that the NLRA's prohibition against "otherwise
discriminat[ing]" includes the refusal to hire an applicant. The
Court reasoned:
"Under [the employer's] view the Act will
permit denial of employment to an applicant
such as [the complainant] on the grounds that
he had filed charges or given testimony
before the board. That would be not only to
license the vicious practice of blacklisting
but to thwart the administration of the Act
itself by ignoring the ever present threat of
such intimidation. Such a reading of the Act
would be a perversion of legislative intent."
Thus, the employee protection provision of the NRLA has
been interpreted broadly to prevent information from being
suppressed by employer intimidation of prospective employees.
The identical purpose is served by a liberal interpretation of
the employee protection provisions of the ERA.
The case law reveals that "employee" should be
interpreted
broadly enough to include prospective employees. In reality,
however, Complainant's status was not that of a prospective
employee but that of an employee, in fact. Complainant was under
the supervision and control of the Respondent while he was at the
power plant. He was obligated to attend the training session and
was compensated for the time that he was at the plant. Also, the
Respondent deducted Social Security and withholding taxes from
his paycheck.
Moreover, the Complainant is covered by the blacklisting
prohibitions of the employee protection provisions of the ERA.
29 C.F.R. § 24.2(b) provides:
"Any person is deemed to have violated the
particular federal law and these regulations
if such person intimidates, threatens,
restrains, coerces, blacklists, discharges,
or in any other manner discriminates against
any employee [who has engated in protected
activities under the Act.]"
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The Courts have interpreted similar provisions of the NLRA
as protecting an employee even after the employer/employee
relationship terminated. An employer was found to have violated
the NLRA by blacklisting or giving negative references about a
past employee. Ferguson v. Mobil Oil Corp., 44 3F. Supp. 1334
(M.D., Ill. 1981).
Accordingly, it is determined that the Complainant was an
employee of the Respondent and such employment is protected by
the employee protection provisions of the ERA and that the
Administrator, Employment Standards Administration, must conduct
an investigation to determine if the Complainant has been
discharged, blacklisted, or otherwise discriminated against in
that employment because he engaged in activity protected by the
ERA.
ORDER
AND NOW, this 9th day of April, 1986, IT IS HEREBY
ORDERED
that this matter is remanded to the Administrator, Employment
Standards Administration, to conduct an investigation to
determine if Complainant was discharged from employment,
blacklisted, or otherwise discriminated against in his employment
by E. H. Hinds because he participated in activities described by
42 U.S.C. § 5851(a).