Administrative Law Judge (ALJ) Henry B. Lasky submitted a
recommended decision and order to the Secretary on October 5,
1984 in this case arising under the employee protection
provision of the Energy Reorganization Act of 1974, as amended, 42
U.S.C § 5851 (the Act). Judge Lasky held that raising safety
and quality questions internally to one's employer is not a
protected activity under the Act. That conclusion is inconsistent
with the Secretary's decisions in Atchison v. Brown and Root,
82-ERA-9 (June 10, 1983) pp. 12-15, and Mackowiak v. University
Nuclear Systems, Inc., 82-ERA-8 (April 29, 1983) pp. 8-10, as
well as the Ninth Circuit's decision in Mackowiak v. University
Nuclear Systems, Inc., 735 F.2d 1159 (1984).1 The current
case arises within the jurisdiction of the Ninth Circuit.
1 Before reaching the protected
activity question, the ALJ held
that failure to complete the hearing and issue a Secretary's
decision within the 90 day period provided in the statute (42 U.S.C.
§ 5851(f)) does not deprive the Secretary of jurisdiction. I adopt
that conclusion. See Logan v. Zimmerman Brush Co., 455 U.S. 422
(1981).
2 The Fifth Circuit's contrary
conclusion in Brown & Root
v. Donovan, 747 F.2d 1029 (5th Cir. 1984) of course had not
yet been issued whether the ALJ decided this case, and even if
it had, it would not justify refusal to follow clearly
applicable precedent.
3 Application of that analysis to
ERA cases by the
Secretary was sustained by the court in Mackowiak, supra, 735 F.2d
at 1164, and has been applied consistently by the Secretary
since the decision in Dean Dartey v. Zack Company of Chicago,
82-ERA-2 (April 25, 1983).