U.S. Department of Labor
Office of Administrative Law Judges
1111 20th Street, N.W.
Washington, D.C. 20036
Case No. 86-ERA-15
In the Matter of
ROGER DALE WENSIL
and
B. F SHAW COMPANY,
SAVANNAH RIVER PLANT
ORDER GRANTING MOTION TO DISMISS
The governing act in this proceeding is the Energy
Reorganization Act of 1974 (the Act), 42 U.S.C. § 5851 and
the regulations promulgated thereunder at 29 C.F.R. Part 24.
On March 14, 1986, the United States Department of Energy
(DOE) filed a Notice of Motion and Motion to Dismiss. The DOE
seeks dismissal of the above-captioned case on the grounds that
this Office lacks subject matter jurisdiction over this action.
Briefs on this issue were submitted by Complainant, the
DOE and the DOL on April 21, 1986, May 14, 1986, and May 7, 1986,
respectively. The parties presented oral arguments on March 18,
1986 on this jurisdictional issue.
The DOE's position is based on the view that under § 210
[Page 2]
of the Act, the United States Department of Labor (DOL) has the
authority to investigate certain discrimination complaints of
employees of the Nuclear Regulatory Commission (NRC) licensees
and their contractors and subcontractors. However, the DOE
asserts, the complaints of employees of the DOE or DOE contractors
and subcontractors are not covered.
The Complainant, Roger Dale Wensil, is an employee of B. F.
Shaw, the subcontractor to E. I. duPont de Nemours and Company,
the contractor for the DOE's Savannah River Plant. Since
Complainant is not an employee of an NRC licensee, contractor, or
subcontractor, DOE argues, Complainant may not proceed under
§ 210(a) of the Act.
Section 210 provides that:
No employer, 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 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
such proceeding; or
(3) assisted or participated or is 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.
Claimant's position, that, as an employee of a subcontractor
[Page 3]
of DOE's contractor, his discrimination complaint is covered, is
supported by the plain language of section 210. I find, however,
that Congress' intent was to protect employees at NRC-licensed
facilities. Congress enacted section 210(a) in the NRC Authorization
Act of 1977, Pub. L. No. 95-601 and it is codified in Title
II of the Act -- the title governing only the NRC. The legislative
history does not indicate that employees other than NRC
licensees and applicants are covered, and specifically, it does
not mention the DOE.
Accordingly, I ORDER this case is hereby DISMISSED for lack
of subject matter jurisdiction.
E. EARL THOMAS
Deputy Chief Judge
Dated: 8 JUL 1986
Washington, D. C.
