In these cases arising under the employee protection
provision of the Energy Reorganization Act of 1974, as amended,
42 U.S.C. § 5851 (1982) (ERA or Act), the Administrative Law
Judge (ALJ) below has recommended that the complaints be
dismissed because complainants were not employees of Respondent
and therefore not protected by the ERA. I find that, under the
specific facts and circumstances presented here, complainants may
pursue their claims under the ERA against Respondent Tennessee
Valley Authority (TVA). These cases will therefore be remanded
to the ALJ for further proceedings consistent with this decision.
Complainants are 24 former employees of the Quality
[Page 2]
Technology Company (QTC). QTC had a contract with Respondent
TVA, a licensee of the Nuclear Regulatory commission (NRC), to
develop and implement a program for the identification,
investigation and reporting of Respondent's employees' concerns
about quality and safety issues at nuclear power plants under
construction for Respondent. Complainants allege that Respondent
violated the ERA when it significantly restricted the scope of
the QTC contract and then refused to renegotiate the contract,
causing termination of complainants' employment, in retaliation
for complainants' investigation, corroboration and disclosure of
safety problems in TVA's nuclear power program.
The ALJ held that the ERA "clearly require[s] that an
employer-employee relationship exist between the parties before
the prohibition against discrimination by an employer against an
employee can be enforced under the ERA." Recommended order
(R.O.) at 2. I do not agree that the language of the Act
ineluctably requires that conclusion.
No employer, including a Commission licensee, an
applicant for a Commission license, or a contractor or
a subcontractor of a Commission licensee or applicant,
may discharge any employee or otherwise discriminate
against any employee with respect to his compensation,
terms, conditions, or privileges of employment because
the employee (or any person acting pursuant to a
request of 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
chapter or the Atomic Energy At 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 manner in such a proceeding or in any other
action to carry out the purposes of this chapter or the
Atomic Energy Act of 1954, as amended.
(b) Complaint, filing and notification
(1) Any employee who believes that he has been
discharged or otherwise discriminated against by any
person in violation of subsection (a) of this section
may . . .file . . .a complaint with the
Secretary . . . .
.
2 If Complainants were found to
be constructive employees of
Respondent under either the right-to-control or the joint
employer test, of course, there would be no question of their
right to complain of alleged discrimination against then.
However, it is not necessary for me to consider the applicability
of these tests, having concluded that Complainants may assert
their claims in these circumstances based on my construction and
application of the Act.
3 This ruling is limited to the
narrow facts and circumstances
here presented. There is no occasion here to decide whether
other employees, differently situated, could seek the Act's
protection from alleged discrimination.