Adams v. United States Department of Energy, 87-ERA-12 (ALJ Mar. 19, 1987)

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Adams v. United States Department of Energy, 87-ERA-12 (ALJ Mar. 19, 1987)

U.S. Department of Labor
Office of Administrative Law Judges
Suite 201
55 West Queens Way
Hampton, Virginia 23669
804-722-0571

DATE: March 19, 1987

CASE NO. 87-ERA-12

IN THE MATTER OF

JOY P. ADAMS,
Complainant,

U.S. DEPARTMENT OF ENERGY,
E.I. du PONT de NEMOURS & COMPANY,
BLOUNT BROTHERS CORPORATION, AND
B.F. SHAW COMPANY
Respondents.

ORDER GRANTING MOTION TO DISMISS

On January 5, 1987 Joy P. Adams, Complainant, filed a complaint against the U. S. Department of Energy, DOE, E.I. du Pont de Nemours & Company, Du Pont, Blount Brothers, Blount and B.F. Shaw, Shaw, collectively known as Respondents, alleging that she had been discriminatorily discharged in violation of the Energy Reorganization Act of 1974 (the Act), 42 U.S.C. § 5851. Each Respondent filed a motion for dismissal of the complaint alleging lack of jurisdiction by the Department of Labor, DOL.

This complaint arises out of Complainant's employment at the Savannah River Plant (SRP), a nuclear fuel processing facility, located in Aiken, Barnwell and Allendale counties, South Carolina. Du Pont operates SRP under contract with DOE, its owner. Shaw is a subcontractor for Du Pont and a subsiduary of Blount. Neither DOE, nor the contractor or subcontractors at the SRP are required to apply for or receive a license from the Nuclear Regulatory Commission (NRC).

Complainant was hired by Shaw in September 1984. On December 6, 1985 she was interviewed by a DOE investigative committee regarding a safety discrimination complaint filed by Roger Wensil, another Shaw employee.

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Complainant's employment was terminated by Shaw on December 31, 1986. Thereafter she filed this complaint with the Department of Labor's Wage and Hour Division alleging that her discharge was in retaliation for her support of Wensil and her participation in the DOE investigation. Richard Robinette, Assistant Regional Administrator for the Wage and Hour Division, informed Complainant that DOL lacked jurisdiction at SRP. Complainant then filed this appeal on January 8, 1987.

Respondents filed their respective motions to dismiss this complaint alleging that § 210 of the Act 42 U.S.C. § 5851 (section 210) applies only to employers at nuclear power plants which are NRC licensees, or applicants for a NRC license, and contractors or subcontractors of such licensees or applicants.

Section 210 of the Act provides in pertinent part:

(a) No employer, including a Commission licensee, an applicant for a Commission license, or a contractor or subcontractor of a Commission licensee or applicant, may discharge any employee or otherwise discriminate against any employee with respect to his compensation, term, 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 Act 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 manner in such a proceeding or in any action to carry out the purposes of this Act or the Atomic Energy Act of 1954, as amended.

(b)(1) Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of subsection (a) may, within thirty days after such violation occurs, file (or have any person file on his behalf) a complaint with the Secretary of Labor . . . alleging such discharge or discrimination. Upon receipt of such a complaint, the Secretary shall notify the person named in the complaint of the filing of the complained and the [Nuclear Regulatory] Commission.

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Pub. L. 95-601, codified at 42 U.S.C. § 5851 (hereinafter referred to as "section 210").

The operative question herein is whether the inclusive portion of the status requires the employer to be an NRC licensee or applicant, or a contractor or subcontractor of such; or whether the "including" phrase is illustrative and the section applies to all employers, regardless of their status as licensee or applicant.

Complainant argues that the meaning of "including" is unambiguous, and it should be given its plain meaning. Respondents do not agree. Given the numerous citations for explaining the meaning of "including", its meaning is apparent only after review of case law, legislative history and consideration of its application to GOCO¹ and NRC employees.

The term "including" has differing legal meanings; it can limit a group, expand a group, or be illustrative of a group. Complainant argues that "including" is illustrative of the group of employers, and it is improper to "conclude that entities not specifically enumerated are excluded." 2A Sutherland, Stat. Const. § 47.23 (4th Ed.); Highway and City Freight Drivers, Etc., v. Gordon, 576 F.2d 1285, 1289 (8th Cir. 1978). The Supreme Court has recognized this view stating that "the term 'including' is not an all-embracing definition, but connotes simply an illustrative application of the general principle." Federal Land Bank of St. Paul v. Bismark Lumber Co., 314 U.S. 95, 100 (1941).

Respondents on the other hand argue that the doctrine of ejusdem generis should be applied to "including". This doctrine provides that when specific terms follow a general word, the general term is restricted to those in the specific list. 2A Sutherland, Stat. Const. § 47.17 (4th Ed.); Brown and Root, Inc., v. Donvan, 747 F.2d 1029, 1032 (5th Cir. 1984). Therefor, since the term "any employer" is followed by a specific list of employers, the the general term employer is limited to those mentioned in the specific list.

In addition to looking at the explicit meaning of the single word 'including the entire context of § 210 must be examined and read in conjunction with other statutory provisions of the ERA. Citizens to Save Spencer Cty. v. EPA 600 F.2d 845, 870 (D.C. Cir. 1979). All the sections should be read as being consistent with each other and the Act should be read as a whole rather than a series of unrelated sections. Id.; Richards v. Unites States, 369 U.S. 1, 11 (1462).

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Section 210(a)(1) refers to "proceeding under this Act or the Atomic Energy Act of 1954". This indicates that the section is applicable to all of the ERA which includes the NRC and DOE. On the other hand, § 210(b)(1) states that, "the Secretary [Secretary of Labor] shall notify the person named in the complaint of the filing of the complaint and the Commission." If the section was to apply to the DOE, it is not apparent why the Secretary of Labor would notify the NRC if the NRC does not have jurisdiction over DOE facilities. As such it appears that these two subsections are inconsistent with each other and the only way the inconsistency can be reconcilled is to read the phrase "proceeding under the Act or the AEA" to mean those sections of the ERA and AEA which deal with the Commission (NRC). This construction seems to fit the overall scheme when one considers how § 210 was adopted and its placement in the ERA.

When § 210 was enacted, it's preamble was "An Act To authorize appropriations to the Nuclear Regulatory Commission for fiscal year 1979, and for other purposes." Public Law 95-601. This provision was added as the last section of Title II in the ERA. The significance of this is that Title II deals solely with the NRC whereas Title I deals solely with DOE (ERDA). Thus, if § 210 were to apply to the DOE it is not logical that it would have been added to the Title which deals solely with the NRC or be included in a NRC appropriations law.

Since the phrasing of § 210 is inconsistent within itself and the placement of the section in Title II casts serious doubt that it was intended to be applied to DOE facilities, the regulatory framework legislative history must be examined to determine Congressional intent and purpose.

The first administrative agency to regulate nuclear power plants was the Atomic Energy Commission (AEC) which was established by the Atomic Energy Act (AEA). See 42 U.S.C. § 2061 and 42 U.S.C. § 2122 et seq. The AEC had two primary functions; first, it regulated and licensed public and privately owned nuclear power plants, and second, it owned facilities which were involved in the production of materials for nuclear weapons. See 42 U.S.C. § 2061 and 42 U.S.C. § 2122 et seq.

In 1974, the Energy Reorganization Act was enacted and it divided the AEC into two separate agencies with differing functions. See 42 U.S.C. § 5801 et seq. The NRC was created to oversee the licensing and operation of commercial nuclear power plants, while the Energy Research and Development Administration (ERDA) was established to research and develop the defense aspects of nuclear

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power at nuclear plants which it owned. See 42 U.S.C. § 5801, 42 U.S.C. § 5811 through 42 U.S.C. § 5821, and 42 U.S.C. § 5841 through 42 U.S.C. § 5851. ERDA and NRC were distinct agencies and ERDA was exempt from the licensing requirements of NRC. See 42 U.S.C. § 2140 and 42 U.S.C. § 2014.

In 1977 the Department of Energy was established. See 42 U.S.C. § 7101 et seq. It abolished ERDA and assumed all ERDA functions and facilities. See 42 U.S.C. § 7101 et seq. Like ERDA, it was exempt from the licensing requirements of the NRC.

From the outset of government regulation of atomic energy, facilities privately owned and operated have been treated differently from GOCO facilities. The AEC had separate regulations, i.e., those for privately owned and licensed facilities and others for GOCO facilities. The regulations governing private licensed facilities covered only employers who were licensed by the AEC, and did not cover license applicants, or contractors or subcontractors of licensees or applicants.² 10 CFR § 19.6(c)(1973); 38 Fed. Reg 22217-22219. On the other hand the regulations governing COCO facilities did cover contractors at GOOD plants.³ AEC Manual, Immediate Action Directive No. 0504-33, pg. 11 (December 20, 1973).

Subsequent to the adoption of ERA, and its creation of NRC, NRC adopted 10 CFR § 19.6(c) as its whistleblower protection regulation. 40 Fed. Reg. 8783. This regulation only covered licensed employers. 40 Fed. Reg. 8783. Likewise ERDA adopted its own whistleblower regulation, which covered (unlicensed) contractors at GOCO facilities.⁴ ERDA Manual, Chapter 0506 Occupational Safety and Health Program for ERDA GOCO Contractor Employees, pg. 13 (January 5, 1977).

These regulations constituted the regulatory background when § 210 was enacted on November 6, 1978. Subsequent to adopting § 210, DOE adopted its own order concerning whistleblowers. The DOE Order, like the ERDA Order, applied to contractors at GOCO facilities.⁵ DOE Order 5483.1, Occupational Safety and Health Programs for Government-Owned-Contractor-Operated Facilities, pg. VI-1, (April 13, 1979).

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Because AEC-NRC regulations applied only to licensees, not license applicants, contractors or subcontractors of licensees or applicants, and the AEC-ERDA-DOE regulations applied to contractors of GOOD facilities it is apparent that these agencies considered the privately licensed plants and GOCO plants totally independent in regards to whistleblower regulations.

The legislative history at best is ambiguous as to the meaning of § 210. The Senate Report stated that § 210 is substantially idential to provisions in the Clean Air Act and the Federal Water Pollution Control Act, i.e., it would prohibit the firing or discrimination of any employee of an employer who files or institutes any proceeding to enforce the ERA or AEA against any employer. (Emphasis Added) S. Rep. No 95-848, 95th Cong., pg 29-30; 1978 U.S. Code Cog. Ad. News 7303-7304. The House conference Report stated, "[t]he Senate bill amended the Energy Reorganization Act of 1974 to provide protection to employees of Commission licensees, applicants, contractors, or subcontractors from discharge or discrimination for taking part or assisting in administrative or legal proceedings of the Commission. The House Amendments contained no similar provision, and the conferees agreed to the Senate Provision." (Emphasis Added) House Conf. Rep. No 95-1796, pg. 16-17; 1978 U.S. Code Cong. Ad. News, p. 7309. The Senate Report does not state whether § 210 was to be Limited to NRC licensees or applicants or whether it coveres all employers. However, the House Conference Report does state that § 210 was limited to licensees and applicants. Since the House Report was drafted after meeting with Senate members to discuss the section, it could be inferred that the Conference Committee spoke to the intent and applicability of § 210.

Assuming that congress was aware of the separate administration of the whistleblower regulations by NRC and DOE one could infer that if Congress intended for a single act to govern both type of nuclear facilities it would have so stated that intent.⁶ Because Congress did not express such intent it would appear it intended to maintain the status quo of separate regulations for each type of nuclear facility.

Another means of determining Congressional intent is to consider how § 210 affected the protection employees received under the then existing whistleblower regulations. As stated previously, prior to the enactment of § 210 an employee of a contractor at a privately licensed facility who was discharged or discriminated against had no recourse because NRC regulation 10 CFR § 19.16(c) only covered licensees, not contractors. However, if the same situation had occurred at a GOCO facility the employee would have had complete protection under ERDA Manual Chapter 0506 or DOE order 5483.1. With the passage of § 210, the employee of a contractor at a licensed facility now has

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the same protection as a similarly employed person at a GOCO facility.

The administrative agencies which administer ERA hold to the opinion that § 210 applies only to NRC licensed facilities. It is firmly established that an executive agency which is to administer a statute is entitled to deference. Ford Motor Credit Company v. Milhollin, 444 U.S. 555 (1990). Therefore, the opinions of DOL, the DOE, and NRC must be considered. The DOL Wage and Hour Division, which administers § 210 for licensed employers, filed an amicus curiae brief stating that the DOL lacked jurisdiction at GOCO facilities as did DOE, owner of the SRP facility. Further evidence if the DOE position is the adoption of DOE Order 5483.1 which prohibits discrimination of whistleblowers. If the DOE thought § 210 applied to GOCO facilities, the enactment of its own protection regulation would be superfluous. The NRC has not filed a brief expressing its opinion; however, certain NRC regulations and documents demonstrate that it considers that § 210 applies only to licensed employers. NRC regulations 10 CRF § 30.7 states that:

"(a) Discrimination by a Commission licensee, an applicant for a Commission license, or a contractor or subcontractor of a Commission licensee or applicant against an employee for engaging in certain protected activities is prohibited. Discrimination includes discharge and other actions that relate to compensation, terms, conditions, and privileges of employment. The protected activities are established in section 210 of the Energy Reorganization Act of 1974, as amended . . ."

This regulation only addresses discrimination at licensed facilities, not GOCO facilities. In addition to this regulation, the NRC expressed its view in a "Memorandum of Understanding Between NRC and Department of Labor; Employee Protection." 47 Fed. Reg. 54585 (December 3, 1982). The purpose of this memorandum was to facilitate the cooperation and coordination of responsibilities under § 210. If the NRC had considered that § 210 was to be applied to GOCO facilities, it seems logical that DOE would have been included in its discussions and memorandum.

Based on the regulatory and legislative histories, consideration of the applicability of § 210 to NRC and GOCO employees similarly situated before and after its passage and giving deference to the opinions of the administering executive agencies, I conclude that § 210 does not apply to GOCO facilities and is not applicable to the SRP. Thus, when Congress adopted the language "No employer, including a Commission licensee, applicant for a licensee . . .", it intended for § 210 to be applicable to NRC licensees, applicants, and

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contractors or subcontractors thereof, not just NRC licensee's and the term "including" expanded only on the standard previously held by the AEC and NRC.

This reading is consistent with Congressional purpose and will not cause a public injury, contrary to Complainant's contentions. Whistleblower's at GOCO facilities continue to be protected by DOE Order 5483.1A as is evidenced by the fact that Complainant had an investigation by the DOE on the nature of her discharge. If the DOL had jurisdiction over GOCO facilities, an employee of SRP could file a charge with the DOE and if the ruling were adverse, then file a claim with the DOL. This could lead to inconsistent rulings and hamper judicial efficiency.

For all of the aforementioned reasons, I conclude that the Department of Labor lacks jurisdiction at the Savannah River Plant. As such, Complainant's complaint must be dismissed.

Complainant sought that this case be joined with the Roger Dale Wensil Case, 86-ERA-15, should a lack of jurisdiction be determined because the two claims enjoy the same issues, witnesses, and evidence. Since Wensil's Complaint is presently on review before the Secretary of Labor, joinder of complaints should properly be filed with the Secretary.

ORDER

The claim of Joy P. Adams is hereby dismissed.

JAMES L. GUILL
Administrative Law Judge

[ENDNOTES]

¹ GOCO is nomenclature for Government Owned Contractor Operated

² 10 CFR § 19.16(c) (1973) provides:

No licensee shall discharge or in any manner discriminate against any worker because . . .

³ The AEC Manual, Immediate Action Directive No. 6504-33, pg. 11 (December 20, 1973) contains in pertinent part:

Nondiscrimination

No contractor shall discharge or in any manner discriminate against any any employee. . .

⁴ The ERDA Manual Chapter 0506 provides in pertinent part that:

Part VI

NONDISCRIMINATION

1. No contractor shall discharge or in any manner discriminate against any employee by virtue of the filing of a complaint, or in any other fashion, exercising on behalf of himself or herself or others any right set forth in Chapter 0506 and its appendix.

2. Any employee who believes he or she has been discharged or otherwise discriminated against in violation of this part may file a complaint within 30 days after the alleged discrimination, with the ERDA contract administrator setting forth the nature of the alleged discrimination. ERDA shall investigate such complaint, and if it is found that such discrimination has occurred, an order shall be issued for appropriate relief including rehiring or reinstatement of the employee, restoration of lost seniority, and back pay. ERDA shall report the determination of the matter to the employee filing the complaint of alleged discrimination, within 90 days after its receipt.

⁵ DOE 5483.1 provides in pertinent part that:

NONDISCRIMINATION

1. No contractor shall discharge or in any manner discriminate against fashion, exercising on behalf of himself or herself or others any right set forth in this Order and its chapters.

2. Any employee who believes he or she has been discharged or otherwise discriminated against in violation of this part my file a complaint within 30 days after the alleged discrimination, with the DOE contract administrator setting forth the nature of the alleged discrimination. DOE shall investigate such complaint, and if it is found that such discrimination has occurred, an order shall be issued for appropriate relief including rehiring or reinstatement of the employee, restoration of lost seniority, and back pay. DOE shall report the determination of the matter to the employee filing the complaint of alleged discrimination within 90 days after its receipt.

3. The forms required to be posted by this part shall be posted in a sufficient number of places to permit employees working in or frequenting any portion of the facility to observe a copy on the way to or from their place of employment.

DOE Order 5483.1 was slightly modified on June 22, 1983 and September 10, 1984 and is now known as DOE Order 5483.1A. See DOE Order SR 5483.1A (September 10, 1983).

⁶ Section 210 lists licensees, applicants, and contractors or subcontractors of licensees or applicant. Not mentioned are contractors of government facilities.