U.S. Department of Labor
Office of Administrative Law Judges
Suite 201
55 West Queens Way
Hampton, Virginia 23669
804-722-0571
DATE ISSUED: June 13, 1986
CASE NO.: 86-ERA-4
In the matter of
PAUL A. BLACKBURN,
Complainant
v.
METRIC CONSTRUCTORS, INC.,
Employer
M. MALISSA BURNETTE, ESQ.
For the Complainant
CHARLES M. BURNDETTE, ESQ.
For the Respondent
THEODOR P. VON BRAND
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
PRELIMINARY STATEMENT
[Page 2]
Paul A. Blackburn, an employee of Metric
Constructors, Inc., was discharged
on September 5, 1984. Mr. Blackburn filed a complaint alleging a violation of
the Employee Protection provisions of the Energy Reorganization Act (ERA),
42 U.S.C. § 5851.
The Administrator of the Wage and Hour Division, U.S. Department of
Labor
on October 25, 1985 found a violation and ordered remedial measures.
Respondent, Metric Constructors, Inc., filed an appeal from the decision. The
hearing on the appeal was held December 16, 1985.1
We believe that Phillips' notification to the foreman of possible
dangers is an essential preliminary stage in both the notification
to the Secretary (A) and the institution of proceedings (B), and
consequently brings the protection of the Safety Act into play.
(Ibid.)
1 The following citations to the
record are used herein:
Tr. - Transcript of the Hearing
CX - Complainant's Exhibit
RX - Respondent's Exhibit
2 The transcript states 300 and
1200 millirem; in context of the succeeding
testimony it is apparent that the figures should be 3,000 and 12,000
respectively.
3 The portable shielding in
question were essentially lead blankets with the
consistency of steel wool hung on pipes and on structures in front of pipes
and other sources of radiation. (Tr. 75).
4 Before a worker is permitted to
enter a radiation work area a dosimetry
technician checks his available dose against the radiation work permit. Entry
is not allowed unless the worker's available dose is twice what the radiation
work permit calls for. If this standard is not met the radiation control
for must decide whether the employee is to be given entry. (Tr. 82-83).
5 Dress out clothes were clothes to
be worn under the protective clothing in
case the clothing got contaminated. (Tr. 14).
6 29 C.F.R. § 24.3(c)
specifies that "another person" may file the complaint
on behalf of an employee.
7 At best the requirement of the
regulation that the complaint be filed with
the Wage and Hour Division rather than another division of DOL is a matter of
administrative convenience, it is not jurisdictional. It cannot vitiate the
fact that a filing with any agency of DOL should be considered to be a filing
with the "Secretary of Labor" as required by the statute.
8 This provision was amended
later to expressly cover internal complaints.
The Phillips decision, however, is concerned with the pre-amendment version
of the Mine Safety Act's whistleblower provision.
9[Editor's Note: Slip opinion
marked a footnote 9 in the text, but no such footnote appears]