, Laibe testified that
Egenrieder left TMI voluntarily but should be able to obtain
reemployment if a vacancy occurs. (Id ). In the Fall of 1981
and the Winter of 1982, complainant sent out job applications
to various nuclear facilities and to TMI. (TR 19-20). In the
Summer of 1982, he applied for a technician job in the
chemistry department at TMI but the job was filled from within
which was normal procedure. (TR 20). In January 1983, Steve
Babczak of TMI's personnel department called Egenrieder and
informed him of a job opening in the training department. (TR
20). Complainant filled out a job application and spoke with
Babczak about the job at his office. (TR 20-21). After
talking to Babczak, Egenrieder met Hukil in the parking lot and
thanked him for the opportunity for reemployment. Hukil said
"we can always use good people." (TR 21).
In February 1983, complainant was told of a directive from,
Robert Arnold, president of Metropolitan Edison, that
complainant would not be allowed to return to work under any
conditions. (TR 21-22). In the Spring of 1983, complainant
learned of an opening at TMI for a chemistry foreman, and he
submitted his job application directly to Gary Reed, the
supervisor of chemistry at Unit 1. (TR 26-27). Reed said he
would do everything he could to see that Egenrieder would be
reemployed. (TR 27). In the Summer of 1983, complainant
confronted Arnold at a public meeting and asked him about the
directive. (TR 27). Arnold denied the existence of such a
directive and told Egenrieder that he could be reemployed at
TMI. (TR 28). Complainant continued to submit applications
for jobs at TMI including one in March 1985. (Id, TR 31, CX
3). In February 1985, Egenrieder was told by a TMI employee
that Babczak had said that there was nothing he could do to
return to TMI. (TR 28). When he asked Babczak about this,
Babczak responded that "the people calling the shots are still
in high positions" at TMI. (TR 31). Egenrieder then filed his
complaint with the Department of Labor. (Id ).
CONCLUSIONS OF LAW
Applicability of the Employee Protection Provisions of the
Act to Former Employees.
Section 201(a) of the Act provides that
"No employer, including a Commission licensee,
... may discharge any employee or otherwise
discriminate against any employee with
respect to his compensation, terms,
conditions, or privileges of employment
because the employee...
(1) commenced, caused to be commenced, or is
about to commence or cause to be commenced
a proceeding under this chapter 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 matter 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.
The only alleged violation of the Act that occurred while
complainant was an employee of respondent was respondent's
refusal to allow complainant to rescind his resignation.
Respondent's alleged refusal to rehire complainant and alleged
blacklisting occurred after complainant was no longer an
employee.
The courts have yet to rule on whether § 210(a) of the Act
covers former employees. However, the courts have ruled on
similarly worded employee protection provisions in other
statutes. In N.L.R.B. v. Whitfield Pickle Co. , 374 F. 2d 576
(5th Cir. 1967), the court interpreted Section b(a)(4) of the
National Labor Relation Act which states that "It shall be an
unfair labor practice for an employer to discharge or otherwise
discriminate against an employee because he has filed charges
or given testimony under this subchapter." 29 U.S.C.
§ 158(a)(4). The court held that Section 8(a)(4) applies to an
employer's refusal to hire as well as a refusal to rehire an
individual who has filed unfair labor practice charges against
the employer even though the original discharge had not been an
unfair labor practice. 374 F. 2d at 382.
In Dunlop v. Carriage Carpet Company , 548 F. 2d 139 (6th
Cir. 1977), the court was called upon to interpret a provision
in the Fair Labor Standards Act making it "unlawful for any
person to discharge or in any manner discriminate against any
employee because such employee has filed a complaint under the
Act." 29 U.S.C. § 215(a)(3). The FLSA defined an "employee" as
"any individual employed by an employer". 29 U.S.C.
§ 203(e)(1). The court, however, held that a former employee,
although voluntarily separated from his employer, is covered by
§ 215(a)(3). He is entitled to protection from discrimination
by his former employer which in that case consisted of
informing prospective employers that the plaintiff should not
be hired because he filed a complaint under the FLSA. 548 F.
2d at 142. The definitions in the FLSA should be construed
liberally to effectuate the broad policies and intentions of
Congress, the court observed. 548 F. 2d at 144. See also
Patchenko v. C.B. Dolge Company, Inc. , 581 F. 2d 1052 (7th
Cir. 1978) for a similarly broad interpretation of the employee
protection provisions in the Civil Rights Act.
I conclude that the courts' rationales regarding the
National Labor Relations Act, the Fair Labor Standards Act, and
the Civil Rights Act apply with equal force to the Energy
Reorganization Act. The Act should be broadly construed to
effectuate the intent of Congress which was to preserve the
integrity of proceedings before the Nuclear Regulatory
Commission. If employees believe that commencing a proceeding
or testifying before the Commission would allow their employers
to refuse to rehire them or blacklist them from future
employment, it would have a chilling effect on their
willingness to report safety violations in nuclear power
facilities. This would frustrate the purpose of the Act.
Therefore, I believe that § 210(a) of the Act applies to
former as well as present employees. Respondent's alleged
refusal to rehire and alleged blacklisting of complainant may
have been violative of the Act if done for an impermissable
purpose.
Equitable Tolling
Egenrieder filed his complaint more than thirty days after
most of the alleged violations of the Act occurred.
§ 210(b)(1). However, it has been held that the 30 day period
for filing complaints under the employee protection provisions
of the Toxic Substance Control Act, 15 U.S.C. 2622, is
analagous to a statute of limitations and is not a prerequisite
to an exercise of jurisdiction by the Secretary of Labor. City
of Allentown v. Marshall , 657 F. 2d 16 (3rd. Cir. 1981). This
ruling is applicable to the Act as well. Therefore, it is
necessary to consider if equitable tolling of the thirty day
period for filing complaints under the Act has occurred. In
light of respondent's motion for dismissal pursuant to Rule
41(b), I will accept complainant's testimony at the hearing as
true for purposes of determining whether complainant has made
out a prima facie case of equitable tolling.
The principal situations in which equitable tolling may be
appropriate are where (1) the defendant has actively misled the
plaintiff respecting the cause of action, (2) the plaintiff in
some extraordinary way has been prevented from asserting his
rights, or (3) the plaintiff has raised the precise statutory
claim in issue but has mistakenly done so in the wrong forum.
City of Allentown , 657 F. 2d at 20. None of these situations
is present here. The cases cited by complainant, Donavan v.
Hahner, Foreman & Harness, Inc. , 736 F. 2d 1421 (10th
Cir. 1984), and Meyer v. Reigel Products Corp. , 720 F. 2d. 303
(3rd Cir. 1983) are clearly distinguishable. Those cases
involve factual situations in which the employer intentionally
misrepresented the reasons for the employee's discharge,
thereby preventing him from knowing if a violation of law had
occurred. In this case, respondent did not actively deceive
complainant as to why he was not allowed to rescind his
resignation or was not rehired. At most, respondent kept
complainant in the dark as to the reason for its actions.
Nor is the situation in the present case analagous to that
in Bonham v. Dresser Industries, Inc. , 569 F. 2d. 187 (3rd
Cir. 1978). In that case, after the plaintiff was discharged
on the basis of age discrimination, he wrote to the president
of the company requesting that he be placed in a different
division of the company. The president wrote back stating that
he had made arrangements to review other opportunities for
plaintiff within the company. The court held that the statute
of limitations period may have been tolled while the plaintiff
and defendant were amicably trying to resolve their dispute and
while the company was sending positive signals. 569 F. 2d at
190, 193. The statements attributed to Hukil, Laibe, and
Arnold, in this case such as "we could always use good people"
and that complainant could be or should be able to be rehired
at TMI were no more than vague assertions and polite
conversation. They can not be construed as firm promises that
complainant would be rehired, or as indications that respondent
was actively considering rehiring him. It is inconceivable
that Egenrieder would have been misled into deferring the
filing of a complaint because of these statements, especially
after repeated failures to secure reemployment at TMI and after
being informed of Arnold's directive in February 1983. The
restrictions on equitable tolling must be scrupulously
observed. City of Allentown , 657 F. 2d at 19. Equitable
tolling has not taken place here.
As the statute of limitations in the Act has not been
equitably tolled, only those alleged violations of the Act that
occurred within thirty days of March 28, 1985 may be
considered. This would include respondent's refusal to rehire
complainant in March 1985 and any blacklisting that may have
taken place during this period. However, as the Area Director
of the Employment Standards Administration did not conduct an
investigation because he believed that the claim was not timely
filed, the case must be remanded to him to conduct an
investigation. 29 C.F.R. § 24.4. The remainder of the
complaint will be dismissed.
Recommended Order
(1) The case is remanded to the Area Director of the
Employment Standards Administration to conduct an investigation
to determine if respondent's actions toward complainant which
took place within thirty days of March 28, 1985 were in
violation of the Act.
(2) The remainder of the complaint is dismissed as
untimely.
DANIEL L. LELAND
DLL/bjh
[ENDNOTES]
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