Administrative Law Judge (ALJ) Alfred Lindeman submitted a
Recommended Decision and Order (R.D. and O.) to the Secretary
in this case arising under the employee protection provision of
the Energy Reorganization Act of 1974, as amended (the ERA or the
Act) 42 U.S.C. § 5851 (1982). He recommended that the complaint
in this case be dismissed for several alternate, independent
reasons. The ALJ held that Complainant's actions just prior to
being discharged by Respondent, were not protected activities
under the Act. The ALJ also held that Complainant, an electrician/
welder, was not the type of employee protected by the ERA. Finally,
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the ALJ held that Respondent's stated reason for discharging
Complainant was, in fact, the motivating reason for the adverse
action, was not applied to Complainant in a disparate manner
and was a sufficient business reason for the action. Because I
reach the same result as the ALJ, although for different reasons,
the complaint in this case will be dismissed.
The facts in this case are well summarized in the ALJ's
decision, a copy of which is appended. I cannot agree with the
ALJ's conclusion, however, that the ERA protects only quality
control inspectors from retaliation for making internal safety
complaints. Indeed, I have consistently rejected this conclusion
in cases under the ERA (Nunn v. Duke Power Company, Case
No. 84-ERA-26 (July 30, 1987)) and other statutes with similar
employee protection provisions (e.g., Poulos v. Ambassador Fuel
Oil, Inc., Case No. 86-CAA-1 (April 26, 1987) and Willy v. Coastal
Corp., Case No. 86-CAA-1 (June 4, 1987) (both Clean Air Act, 42
U.S.C. § 7622 (1982)). The reasoning of those cases is equally
applicable here. See, Poulos, slip opinion at 4-11; Nunn, slip
opinion, at 10-13.
There is nothing in Section 5851 or its legislative history
which draws any distinction between different kinds of employees.
The Act says "No employer . . . may discharge any employee or
otherwise discriminate against any employee . . . ." 42 U.S.C.
§ 5851(a) (emphasis added). Nor is the Ninth Circuit's decision
in Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159
(1984) to the contrary. In concluding that quality control
inspectors are protected under the ERA, the Mackowiak court did
not hold that only quality control inspectors are covered. Rather,
the Ninth Circuit simply held that "[t]he rationale for the
rule [protecting workers from retaliation based on their concerns
for safety and quality] is stronger" when a quality control
inspector is the complainant. 735 F.2d at 1163. The Ninth
Circuit in Mackowiak approved the Secretary's reliance on cases
such as Phillips v. Dept. of Interior Board of Mine Appeals,
500 F.2d 772 (D.C. Cir. 1974), cert. denied, 420 U.S. 938 (1975)
for his holding that internal quality and safety complaints are
protected. Id. The miner-complainant in Phillips, of course,
was not a quality control inspector.
Furthermore, the Secretary recently held that employees
other than quality control personnel are covered by the employee
protection provision of the ERA. See Nunn v. Duke Power Company,
slip op. at 11. In addition, the Secretary has held implicitly
several times that other workers are protected under the ERA.
See Flanagan v. Bechtel Power Corporation, 81-ERA-7 (June 27,
1 The Secretary's decisions in ERA
cases are binding precedent
under the Administrative Procedure Act, (APA) 5 U.S.C. § 551-706
(1982). Section 3 of the APA, 5 U.S.C. § 552(a)(2), provides
that "[e]ach agency in accordance with published rules, shall
make available for public inspection and copying --
(A) final opinions . . . as well as orders,
made in the adjudication of cases;. . . "
Opinions and orders of the Secretary of Labor are available for
inspection and copying in the Office of Administrative Appeals
in accordance with the Department of Labor's regulations. 29
C.F.R. § 70.12(b) (1936). To the extent applicable on the facts
and legal questions presented in a given case, the Secretary's
decisions are binding on all Department of Labor administrative
law judges., See Lockert v. Pullman Power Products Corp. 84-ERA-15
(August 19, 1985).
2 In a footnote discussing the
legislative history of the
ERA, R.D. and O. at 6, n.2, the ALJ did not consider the
fact that the Senate Report No. 95-848, 95th Cong., 2d
Sess. 29, reprinted in 1978 U.S. Code Cong. & Admin. News
7303, which he cited, explicitly referred to the employee
protection provision of the Coal Mine Health and Safety
Act of 1969, Pub. L. No. 91-173, 30 U.S.C. § 801 et seq.
(1976), which did not contain explicit coverage for internal
safety complaints. See discussion in Willy v. The Coastal
Corporation and Coastal States Management Corporation,
Case No. 85-CAA-1 (June 4, 1987), slip op. at 3-5.
3 Complainant testified that he
asked Mr. Ramirez at this point
about the provision of a welder's hood respirator and welding
leathers, but Mr. Ramirez did not respond. T. at 328. Mr. Ramirez
testified that Complainant's only comments on the morning of
January 29, 1936 were that he was uncomfortable with HP. T. at
494.
4 Although the testimony of
Complainant and Mr. Thomas at the
hearing was in conflict as to whether Complainant raised safety
concerns with Mr. Thomas, the ALJ credited Mr. Thomas' version
because of an inconsistent statement in Complainant's deposition.
R.D. and O. at 4.