1References herein are as follows:
"ALJ" - Administrative Law
Judge Exhibits, "C" - Complainant Exhibits, "H" - Respondent Hydro
Nuclear Services, Inc. Exhibits, "P" - Respondent Omaha Public Power
District Exhibits, "Tr." - transcript.
2Outside the 30 day requirement
of 42 U.S.C. 5851(b)(2)(A) and 29
CFR 24.4(d)(1).
3The Administrative Law Judge
decision to be entered within 90
days of the filing of briefs, and the Secretary of Labor's final
order, within 90 days of the ALJ decision (Tr. 164, 165).
4Priest v. Baldwin
Assocs, 84 ERA 30 (6/11/86); Willy v. Coastal
Corp, 85 CAA1 (6/4/87), adopting the Ninth and Tenth Circuit rational
in Mackowiak v. University Nuclear Systems, Inc., Case No. 82-ERA-8
(April 29, 1983), aff'd and remanded, 735 F.2d 1159 (9th Cir. 1984),
and Wells v. Kansas Gas and Electric Co., Case No. 83-ERA-12
(June 14, 1984), aff'd sub nom Kansas Gas & Electric v. Brock, 780
F.2d 1505 (10th Cir. 1985), cert. denied, 106 S.Ct. 3311 (1986); as
against the decision reached in Brown & Root, Inc. v. Donovan, 747
F.2d 1029 (5th Cir. 1984), absent resolution of this circuit conflict
by the U.S. Supreme Court.
5Wayne Britz was not represented
by counsel at trial.
6Complainant had arrived at the
Fort Calhoun station sometime in
mid-August, 1988 (Tr. 90).
9Hydro's counsel stipulated that
Hydro instructed Britz to
dismiss Complainant (Tr. 20).
10(a) Whether the phrase
"No employer, including a Commission
license...or a contractor or a subcontractor of a Commission
license..." may itself and by its own terms be interpreted as
rendering all such entities "employers", is an interesting semantic
question.
10(b)Hydro's assertion that
Complainant was discharged due to his
"insubordination" to Hydro's Neely, somewhat itself refutes its denial
of employer status.
12As regards Respondent Britz,
who initially retained
Complainant, paid his salary (Tr. 13, 82), and informed him that he
was terminated (Tr. 47)), while he does not raise this defense, I
would have found him also to be Complainant's employer based upon the
same rationale as that underlying Respondents Power and Hydro.
13Hydro's position that, since
the substance of Complainant's
observations were already exposed and widely known, and since it was
Complainant's specified job function to report these hazards, he could
not have been fired because of such reporting, is unavailing. It has
been held that one who is paid to report violations is protected by
the Act, Murphy v. Consolidated Coal Co., 82 ERA 4, 83 ERA 4, and that
it is not necessary to prove that employer attempted to hide unique
information in order to make out a case under 42 USC 5851, De Ford v.
Secretary of Labor, supra. At any rate, Complainant testified without
contradiction that his reporting duties included the reporting of
previously reported violations which continued uncorrected (Tr. 157).
14Nor, for that matter, does
proof that Complainant was doing his
reporting job well ("...[calling] a spade a spade," Tr. 103), standing
alone, prove that he was fired for doing his reporting job well.
15For instance, some evidence
challenging Ferguson's statement
that Complainant's reports were never discussed in connection with his
discharge (Tr. 120). A diligent search of the trial record of
Complainant's proof in this regard evokes the recently popularized
query "Where's the beef?".
16Through language and overall
disposition (Tr. 116, 97, 130,
142, 145, 149).
17Compare Complainant's
testimony at Tr. pg. 53 against Britz's
testimony at Tr. 83, 84, 85.
18As regards Respondent Britz,
I find that the evidence
abundantly demonstrates that he did not dismiss Complainant. His
stated defense is therefore entirely sustainable.