ARB CASE NO. 98-059
(ALJ CASE NO. 95-CAA-10)
DATE: January 31, 2001
In the Matter of:
HARRY L. WILLIAMS,
COMPLAINANT,
v.
LOCKHEED MARTIN ENERGY SYSTEMS, INC.,
MARTIN MARIETTA CORPORATION, and
MARTIN MARIETTA TECHNOLOGIES, INC.,
RESPONDENTS.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant: Edward A. Slavin, Jr., Esq.,
Deerfield Beach, Florida Lori A. Tetreault, Esq.,
Lawrence, Mutch & Tetreault, P.A.,
Gainesville, Florida
For the Respondent:
Charles W. Van Beke, Esq.,
Wagner, Myers & Sanger, Knoxville,
Tennessee Patricia L. McNutt, Esq.,
Lockheed Martin Energy Systems, Oak Ridge,
Tennessee
FINAL DECISION AND ORDER
This case arises under the employee protection
("whistleblower") provisions of the Clean Air Act (CAA), 42 U.S.C. §7622
(1994), the Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA), 42 U.S.C. §9610 (1994), the Toxic Substances Control Act (TSCA), 15
U.S.C. §2622 (1994), the Solid Waste Disposal Act (SWDA), 42 U.S.C. §6971
(1994) (collectively referred to as the "Environmental Acts"), and the Energy
Reorganization Act (ERA), as amended, 42 U.S.C. §5851 (1994).
1 There are three U. S. government-owned
nuclear facilities in Oak Ridge, Tennessee: the K-25 Plant; the Y-12 Nuclear Weapons Plant; and the Oak
Ridge National Laboratory. Union Carbide operated the Oak Ridge facilities under contract with DOE until
1984. On April 1, 1984, Martin Marietta Energy Systems (MMES), a division of Martin Marietta
Corporation, replaced Union Carbide as the government contractor at the three facilities. In 1996, MMES
became a wholly owned subsidiary of Lockheed Martin Corporation, now known as Lockheed Martin Energy
Systems (LMES).
2 As Williams was employed by
LMES at the time the complaint was filed, it is unclear what the constructive discharge allegation refers to.
3 In addition, Union Carbide sought
dismissal as a respondent on the grounds that Williams had failed to state any cognizable claims against it
because its contract with DOE for the operation of the Oak Ridge facility ceased March 31, 1984, before any
of the violations alleged by Williams took place. The ALJ granted Union Carbide's motion. Williams does
not challenge the ALJ's dismissal of Union Carbide on appeal.
4 On appeal, Williams does not
challenge the dismissal of the claims against Thompson and Ruth.
5 Williams does not challenge this
holding on appeal.
6 Williams also contends that the ALJ
accorded him insufficient time to respond to LMES' Motion for Summary Decision.
7 Among the documents provided
with Williams' submissions is what Williams characterizes as "the May 31, 1994 proposed Staff
reorganization, which showed me as a Senior Training Analyst, e.g., a demotion from Training
Commander. This was a proposed demotion publicly distributed, and is another adverse action not discussed
by the ALJ." Declaration of Harry L Williams, ¶6.
8 Our colleague also criticizes the
ALJ's order dismissing the individual Respondents, LMES employees Thompson and Ruth. However, as
LMES pointed out in n.2 of its brief, and as we note at n.3, supra, Williams has not challenged that
ruling on appeal. It is a basic tenet of appellate practice and procedure that the reviewing court will not
address rulings of the trial judge that the parties do not challenge on appeal. The Supreme Court has made
the point repeatedly. See United Parcel v. Mitchell, 451 U.S. 56, 61 n.2, 101 S.Ct. 1559, 1563 n.2
(1981); Bell v. Wolfish, 441 U.S. 520, 532, n.13, 99 S.Ct. 1861, 1870 n.13 (1979); Knetch v.
United States, 364 U.S. 361, 370, 81 S.Ct. 132 (1960). To some extent this reflects the fact that Article
III courts have jurisdiction only over cases and controversies, a limitation that does not apply to non-Article
III administrative adjudicators. To that extent, the rule of appellate restraint does not apply to us, as we may
issue advisory opinions.
However, this rule of appellate restraint also serves important fairness considerations.
The reviewing court should not, out of its interest in an issue, deprive the parties of the ability to control what
or how much they place at risk of reversal. Exceptions to the rule should be made only for extraordinarily
important issues, such as jurisdiction or the validity of the law on which the appeal depends. Cf.
e.g., United States Nat'l Bank of Oregon v. Independent Insurance ts of America, Inc. 508 U.S.
439, 444-447, 113 S.Ct. 2173, 2177-2179 (1993) ("After giving the parties ample opportunity to
address the issue, the Court of Appeals acted without any impropriety in refusing to accept what in effect
was a stipulation as to a question of law" - the question being whether the law had been repealed).
9 DOE also moved to dismiss the
ERA and TSCA claims on sovereign immunity grounds. The ALJ granted that aspect of DOE's motions, and
Williams does not challenge that ruling on appeal.
10 The ALJ excerpted the following
paragraph from the contract, which Member Brown fails to cite in his lengthy footnote (Concurring and
Dissenting Opinion at n.4) quoting provisions of the contract:
Persons employed by the Contractor shall be and remain employees of the
Contractor, and shall not be deemed employees of DOE or the Government;
provided, that nothing herein shall require the establishment of an employer
employee relationship between the Contractor and consultants and others
whose services are utilized by the contractor for the work hereunder.
August 2, 1995 Order at 7-8, quoting DOE-LMES contract at Paragraph (b)(3)(iii).
11 Because we ultimately determined
that Stephenson had not engaged in protected activity, we were not required to reach the question whether,
under the facts and circumstances of that case, NASA sufficiently controlled or interfered with her
employment with Martin Marietta Corp. to be held liable under the CAA. Stephenson, supra, slip
op. at 13.
12 Our colleague apparently
misapprehends this discussion in Stephenson when he offers this characterization:
While declining in Stephenson to decide the exact breadth
of the CAA's employee protection provision, the Board nevertheless did
hold that in a hierarchical employment context, such as that involving a
parent company or a contracting agency, the company or agency will
be considered to act in the capacity of a covered employer with
regard to the complainant if it is established that the company/agency
either "exercis[ed] control over production of the work
product" or that it established modified or interfered with the terms,
conditions or privileges of employment. . . ."
Concurrence and Dissenting Opinion at 16-17 (underlining added). The fact that a federal agency such
as DOE retains some authority to exercise control over a contractor's work product, and reserves other rights
to regulate the conduct of workers at government-owned facilities, does not mean per se that the
federal agency becomes a joint employer with its contractors. The question whether a federal agency actually
has "acted" in the capacity of an "employer" with regard to a contractor's employees
must be an individualized, fact-specific inquiry addressed on a case-by-case basis; liability (or even potential
liability) cannot be imputed merely from the language of procurement contracts.
13 Indeed, there is nothing else one
could rely upon, as the ALJ made abundantly clear. August 2, 1995 Order, slip op. at 7-8.
14 In their 1998 Supplement,
Lindemann & Grossman state:
In general, courts look to three factors in assessing whether a joint
employer relationship exists; authority to hire and fire the employee,
promulgate work rules and assignments, and set conditions of employment;
day-to-day supervision, including discipline; and control of employee
records, including payroll and taxes.
Lindemann & Grossman, 1998 Supplement, Ch. 30 at 432.
[ENDNOTES -- DISSENTING OPINION]
1 Whether the ALJ treated DOE's
motion as a "factual" Rule 12(b)(1), Fed. R. Civ. Pro., motion is immaterial to the question of
whether the ALJ applied the correct legal standard and reached the proper conclusion with regard to the issue
of whether DOE is a covered employer under the environmental acts.
2 In Hill & Ottney v.
T.V.A., 87-ERA-23 & 24 (Sec'y, May 24, 1989), the Secretary interpreted the similar language of the
ERA, 42 U.S.C. §5851(a) (1994), to include the Tennessee Valley Authority as a covered employer
despite the fact that it was not the complainants' immediate employer. Determinative was the control TVA
was alleged to have effected over the complainants' employment through its contractual relationship with the
immediate employer, which TVA allegedly terminated in retaliation against the complainants' protected
activities.
3Cf.Freels v.
Lockheed Martin Energy Systems, ALJ Case Nos. 95-CAA-2, 94-ERA-6, ARB Case No. 95-110 (Dec.
4, 1996) (DOE entitled to summary decision that it was not the complainant's employer where she did not
allege that DOE interfered with her employment).
4 This theory of employer
liability is separate and distinct from the "joint employer" theory of liability. As the Secretary
in Hill & Ottney acknowledged, there are several legitimate legal tests in addition to the "joint
employer" theory for determining when a party other than the employee's common law employer will
be considered a covered employer for purposes of liability under the environmental acts. Slip op. at 2-3.
Obviously, as the majority opinion discusses, the "joint employer" theory of liability is
inapplicable to the facts before us in this case.
5 As the Board explained in
its April 7, 1997 Order, the dismissal of the Varnadore III (95-ERA-1) complaint against
the named respondents "turned on more than the mere lack of an immediate employment relationship
between the complainant and the Federal and individual respondents. Not only did Varnadore fail to show
that DOE and Culbreth employed him directly; he also failed to articulate any relevant nexus between either
DOE or Culbreth and his immediate employer, respondent Energy Systems." Slip op. at 2-3.
6 Under Clause 1 of the
Contract, Statement of Work, at section (a), Engagement of Contractor, it is stated in relevant part:
"The Contractor undertakes and promises to manage, operate and maintain said plant and facility, and
to perform said work and services, upon the terms and conditions herein provided and in
accordance with such directions and instructions not inconsistent with this contract which
DOE may deem necessary or give to the Contractor from time to time."
At section (b), Description of Work and Services, subsection (1), it is stated in
relevant part: "With respect to the facilities . . . the Contractor shall manage, operate and maintain
them in accordance with programs approved in writing from time to time by DOE."
Including, inter alia:
"(i) Fabrication and assembly of nuclear weapons
components in accordance with workload guidance established by DOE."
"(ii) Processing . . . and production reactor operations
in accordance with workload guidance established by
DOE."
"(iv) Production and/or distribution of radioisotopes
[etc] as DOE may authorize and direct."
"(vi) Services in support of contract DE-AC05-760R00001,
or as directed by DOE."
At subsection (2) of section (b), the contract provides: "(i) In addition
to [the foregoing provisions], the contractor shall perform services as DOE and the Contractor shall agree
in writing will be performed from time to time under this contract at Oak Ridge or elsewhere, as follows: .
. . (2) services . . . for other Federal agencies and non-federal entities in accordance with policies
and procedures established by DOE, (3) services . . . for the Nuclear Regulatory Commission,
under interagency agreements between NRC and DOE, and (4) services in support of the
program of Oak Ridge Operations when the work involved has been determined by DOE to be within
the unique capabilities of the Contractor . . . . The work performed by the Contractor for third-
party sponsors shall be pursuant to a DOE-approved Work for Others Agreement . . .
."
At subsection (3), paragraph (i), the contract provides that the work and services
covered under the contract shall be under the "direct charge" of a "competent full-time
supervising representative of the Contractor, approved by DOE . . . ." Paragraph
(ii) thereof states, "In carrying out the work under this contract, the Contractor shall, subject
to the general control of DOE, do all things necessary . . . provided that, whenever
approval or other action by DOE is required with respect to any expenditure or commitment by
the Contractor . . . the Government shall not be responsible unless and until such approval or action
is obtained or taken."
Subsection (3), paragraph (iv) provides, in part: "The Contractor shall,
when directed by DOE and may, but only when authorized by DOE,
enter into subcontracts for the performance of any part of the work under this clause."
At subsection (3), paragraph (vi) it is stated, in relevant part: "The Contractor
shall provide for necessary repairs, alterations, additions or improvements to the buildings and facilities of
the plants, to the extent such work is included in programs approved in writing by DOE.
Projects which, under applicable procedures adopted by DOE from time to time, require
the issuance of a directive therefor by the Manager of DOE's Oak Ridge Operations Office . . . shall
not be undertaken until such directive has been issued."
Subsection (3), paragraph (vii) states: "The Contractor shall, to the
extent requested by DOE, perform maintenance, protective and service functions in portions of the
Oak Ridge area outside the plant areas."
Paragraph (viii) of subsection (3) dispels any notion of DOE's lack of control over
the Oak Ridge workforce, stating in relevant part: "Upon the prior approval of DOE,
the Contractor's employees normally engaged in the performance of this contract may be retained on the
allowable cost payroll and used intermittently by the Contractor on work other than in the performance of
this contract . . . ." Moreover, at paragraph (xi), concerning Contractor compliance with the Privacy
Act, 5 USC §552(a), it is stated, in relevant part: "If DOE requires the
Contractor to design, develop, or maintain additional systems of Government-owned records on individuals
to accomplish an agency function, the Contracting Officer . . . shall so notify the Contractor in writing and
such Privacy Act system shall be deemed added . . . whether incorporated by formal contract modification
or not."
[All emphasis throughout this footnote is added.]
7 Under the SWDA the term
"person" is defined to mean "an individual, trust, firm, joint stock company, corporation
(including a government corporation), partnership, association, State, municipality, commission, political
subdivision of a State, or any interstate body and shall include each department, agency, and instrumentality
of the United States." 42 U.S.C. §6903(15).
Similarly, under CERCLA the term "person" means "an individual,
firm, corporation, association, partnership, consortium, joint venture, commercial entity, United States
Government, State, municipality, commission, political subdivision of a State, or any interstate body."
42 U.S.C. §9601(21).
8 See,
e.g., 1972 U.S.C.C.A.N. 3668, 3748-49 ("the person committing the violation could be
assessed the costs incurred by the employee to obtain redress").
9 See,
e.g., 1977 U.S.C.C.A.N. 3401, 3436 ("the prohibition against discrimination applies not only
to the operator but to any other person directly or indirectly involved").