U.S. Department of Labor Office of Administrative Law Judges
800 K Street. N W.
Washington. D.C. 20001-8002
DATE: 11/29/93
CASE NO.: 93-TSC-3
In the Matter of
CHRIS J. DU JARDIN
Complainant
v.
MORRISON KNUDSEN CORPORATION
Respondent
ORDER DENYING RESPONDENT'S MOTION
FOR SUMMARY DECISION
On June 14, 1993, Chris J. DuJardin filed a complaint with
the U.S. Department of Labor (hereinafter "DOL") under the Comprehensive
Environmental Response Compensation and Liability Act (hereinafter
"CERCLA"), 42 U.S.C. § 9610, and the Solid Waste Disposal Act, 42
U.S.C. § 6971 (referred to by the parties as the Resource Conservation and
Recovery Act), alleging that he had been constructively discharged from his
employment as a maintenance technician at the Vertac Superfund site in Jacksonville,
Arkansas on May 14, 1993.1 On
July 16, 1993, Mr. DuJardin filed a request for hearing on that complaint with the Office
of Administrative Law Judges.2
1While Mr.
DuJardin originally reported that this incident had occurred on May 14, 1993, the
evidence contained in the record, including subsequent statements made by Mr.
DuJardin, indicate that the incident more likely than not occurred on May 13,
1993.
2When
he originally filed his complaint with DOL, Mr. DuJardin named Vertac Site
Contractors (VSC) as his employer. However, sometime before reaching this
Office Mr. DuJardin amended his complaint to indicate that his employer had
been Morrison Knudsen. Morrison Knudsen is a separate legal entity engaged in
a joint venture with Vertac Site Contractors.
3While
these courts ruled on this issue in the context of the whistleblower provision of the
Energy Reorganization Act, 42 U.S.C. § 5851, and this case was not
brought under that statute, the Secretary of Labor has determined that the same
general principles apply to all retaliatory adverse action cases arising under 29
C.F.R. Part 24 and the whistleblower statutes enumerated therein. Dean
Dartey, No. 82-ERA-2 at 6 (Apr. 25, 1983).
4In the
process of incinerating chlorinated material, Morrison Knudsen uses sodium
hydroxide to make sodium chloride, or salt, which is listed as a hazardous
material. (A.A.T. at 2526.) The baghouse is a section of the incineration area
where gas is forced through cloth bags for the purpose of capturing the sodium
chloride and dropping it to the bottom of the hopper, where it can be conveyed
out. (A.A.T. at 25-26.)
5I
make no finding, however, with respect to whether Morrison Knudsen
constructively discharged Mr. DuJardin or whether reinstatement was a condition
or privilege of Mr. DuJardin's employment after resigning. Also, the facts of this
case reflect that Mr. DuJardin reported the release of contaminated materials to
management prior to announcing the termination of his employment.
6Because the Rules of Practice and
Procedure for Administrative Hearings Before the Office of Administrative Law
Judges, 29 C.F.R. Part 18, do not provide for a situation such as this, the Rules of
Civil Procedure for the District Courts of the United States are applicable. 29
C.F.R. § 18.1(a).