USDOL/OALJ Law Library: Nuclear and Environmental Whistleblower Digest, DIVISION XIV -- EMPLOYER/EMPLOYEE

The issue of whether the complainant was an employee within the meaning of the environmental whistleblower provisions, CAA, TSCA, CERCLA, SDWA, SWDA, and FWPCA, is jurisdictional. Reid v. Methodist Medical Center of Oak Ridge, 93-CAA-4 (Sec'y Apr. 3, 1995).

[Nuclear & Environmental Whistleblower Digest XIV A 1]
EMPLOYER EMPLOYEE; OWNER OF CONTRACT FIRM NOT A COVERED "EMPLOYEE"

In Demski v. Indiana Michigan Power Co. , ARB No. 02 084, ALJ No. 2001 ERA 36 (ARB Apr. 9, 2004), the Complainant was the president and sole shareholder of a company that supplied contract labor for power generating plants, and had several contracts to supply workers for Respondent's Cook nuclear plant. Under the express terms of the contracts, the Complainant's company was defined as not an agent or employee of the Respondent. The Complainant alleged that the Respondent unlawfully terminated the contracts because she had reported safety concerns to Respondent's management and the NRC. The ARB found that two of the essential elements of a whistleblower claim under the ERA are that the complainant must be an employee and the respondent must be an employer. The ARB found that the undisputed facts of the case established that the Complainant was a contractor, and an employer, and not an employee of the Respondent or her company, and therefore she was not entitled to relief under the whistleblower provision of the ERA.

[N/E Digest XIV A 1]
DEFINITION OF EMPLOYEE; APPLICABILITY OF NLRA

In Boschuk v. J & L Testing, Inc. , 96-ERA-16 (ARB Sept. 23, 1997), Respondent argued that Complainant was not protected by the ERA because he is the natural son of the president and sole owner of the respondent company. Respondent contended that since the word "employee" is not defined in the ERA, the Board must therefore apply the definition contained in the National Labor Relations Act (NLRA), which specifies that "the term employee . . . shall not include . . . any individual employed by his parent or spouse." 29 U.S.C. §152(3).

The ARB rejected this contention, finding that it was not bound to apply specific legislative exemptions contained in the NLRA to the ERA. Rather, the ARB will apply the test set forth in Community for Creative Non-Violence v. Reid , 490 U.S. 730 (1989) and Nationwide utual Insurance Company v. Darden , 112 S. Ct. 1344 (1992), i.e. , the conventional master-servant relationship as understood by common-law agency doctrine.

XIV A 1 Employee/employer test

In Williams v. Y-12 Nuclear Weapons Plant, 95-CAA- 10 (ALJ Aug. 2, 1995), the ALJ recommended dismissal of Respondent, Department of Energy. In regard to an ERA complaint, the ALJ found no waiver of sovereign immunity. In regard to a TSCA complaint, the ALJ found no waiver of sovereign immunity except for complaints involving lead-based paint. In regard to the CAA, SWDA, RRCA, and CERCLA, the ALJ found that the Complainant was not an employee within the meaning of those Acts and the employer-employee test stated in Reid v. Methodist edical Center of Oak Ridge, 93-CAA-4 (Sec'y Apr. 13, 1995).

XIV A 1 Definition of "employee"

In Reid v. Methodist Medical Center, 93-CAA-4 (ALJ ar. 29, 1993), the ALJ determined that since none of the whistleblower provisions define "employee," the conventional master-servant relationship as defined by common-law agency doctrine, must be applied to determine whether a complainant is a covered employee.

Applying common law agency doctrine, the ALJ concluded that the employment relationship between the complainant, a physician, and the various respondents was contractor and independent contractor, in fact and well as in title, and therefore was not a covered "employee".

[Editor's note: The Secretary took the position in Hill v. Tennessee Valley Authority, 87-ERA-23 and 24 (Sec'y May 24, 1989) (decision & order of remand), essentially that a complainant need not be an employee of the alleged discriminator as long as he or she is somebody's "employee". Reid , however, may be distinguishable because Dr. Reid was found not to be anybody's "employee". To my knowledge the Secretary has not ruled on whether an independent contractor is covered under the Part 24-type cases.]
XIV A 1 Definition of employee

Under the CAA and the ERA "any employee" is protected. See 42 U.S.C. §§ 5851(a), 7622(a). Such an employee need not be charged with enforcement responsibilities under the [ERA or] CAA.

Poulos v. Ambassador Fuel Oil Co., Inc., 86-CAA-1 (Sec'y Apr. 27, 1987) (order of remand) (explaining Brown & Root which could be interpreted as limiting protection to quality control inspectors).

XIV A 1 Common law master-servant standard

In Stultz v. Buckley Oil Co., 93-WPC-6 (ALJ Aug. 23, 1993), Complainant was hired as a management consultant by Respondent on a short term basis, although there were ongoing negotiations for a more permanent employment relationship. The threshold issue was whether Complainant was an "employee" within the meaning of the Federal Water Pollution Control Act. The ALJ noted that none of the Acts that could be applicable to the instant case included a definition of the term "employee," and therefore turned to the United States Supreme Court decision in Nationwide Mut. Ins. Co. v. Darden, 112 S. Ct. 1344 (1992), in which the holding in Community for Creative Non-Violence v. Reid, 490 U.S. 730, 109 S. Ct. 2166 (1989) was reiterated. In Reid , the Court held that when a statute containing the term "employee" does not helpfully define it "the conventional master- servant relationship as understood by common-law agency doctrine" should be applied. The Court summarized the test as follows:

In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.

The Court also quoted NLRB v. United Ins. Co. of America, 390 U.S. 254, 258; 88 S. Ct. 988, 991 (1986), as follows:

Since the common-law test contains 'no shorthand formula or magic phrase that can be applied to find the answer, . . . all of the incidents of the relationship must be assessed and weighed with no one factor being decisive.'

Applying this test, the ALJ found that Complainant was an independent contractor because it was not shown that Respondent exercised control over the manner and means by which results were to be obtained, and because Complainant was paid as an independent contractor for Federal income tax withholding purposes.

Nonetheless, the ALJ found that because Complainant had sought long term employment, he was accorded protection as a prospective employee, citing the ALJ decision in Young v. Hinds, 86- ERA-11 (ALJ Apr. 8, 1986) (the Secretary found in unnecessary to rule on this issue on review, see Young v. Hinds, 86-ERA- 11 (Sec'y July 8, 1987)).

XIV a 1 Employee of employer other than the respondent

In Hadden v. Georgia Power Co., 89-ERA-21 (ALJ May 21, 1990), the ALJ applied the Secretary's broad interpretation of covered "employees" under the ERA whistleblower provision in Hill v. Tennessee Valley Authority, 87-ERA-23 and 24 (Sec'y May 24, 1989) (decision & order of remand), to find that although the Complainant was not an employee of the Respondent, he was an "employee" and therefore a covered employee under the Act. In short, a complainant need not be an employee of the alleged discriminator.

XIV A 1 ERA protection of employees other than quality control inspectors

In Wilson v. Bechtel Construction, Inc., 86-ERA-34 (Sec'y Feb. 9, 1988), the Secretary rejected the ALJ's conclusion that the ERA protects only quality control inspectors from retaliation for making internal safety complaints. See Nunn v. Duke Power Co., 84-ERA-26 (Sec'y July 30, 1987); Poulos v. Ambassador Fuel Oil, Inc., 86-CAA-1 (Apr. 26, 1987); Willy v. Coastal Corp., 86-CAA-1 (June 4, 1987).

Nothing in section 5851 or its legislative history draws any distinction between different kinds of employees. Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (1984) does not hold that only quality control inspectors are protected under the ERA. The Secretary has held that employees other than quality control personnel are covered by the employee protection provision of the ERA, see Nunn v. Duke Power Co., 84-ERA- 26 (Sec'y July 30, 1987), slip op. at 11, or held so implicitly. See Flanagan v. Bechtel Power Corp., 81-ERA-7 (Sec'y June 27, 1986) [other citations omitted]. See also Donovan v. Stafford Construction Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984) (Employee protection provision of Mine Safety & Health Act, 30 U.S.C. § 815(c) protected a secretary although the section on its face only covers "miners").

XIV A 1 Darden "employee" test applied in environmental whistleblower cases

In Reid v. Methodist Medical Center of Oak Ridge, 93-CAA-4 (Sec'y Apr. 3, 1995), the Secretary held that he would apply the "employee" test used in Nationwide Mutual Ins. Co. v. Darden, 112 S. Ct. 1344 (1992), in cases involving the environmental whistleblower provisions of the CAA, TSCA, CERCLA, SDWA, FWPCA and the SWDA. (An ERA claim was dropped and was not before the Secretary for review) Darden articulates a common-law test for "employee" based on the general common law of agency.

The Secretary rejected the arguments of the Complainant and the Solicitor of Labor that a more expansive definition of "employee" should be used for these environmental whistleblower provisions. The Complainant proffered an "economic realities" test used in FLSA cases. The Solicitor proffered a Title VII analogy: cases in which coverage is extended beyond the immediate employer-employee relationship. The Secretary found that both of these lines of decisions were distinguishable, the FLSA having exceedingly broad language in regard to this issue and expansive legislative history absent in regard to environmental whistleblower provisions at issue, and Title VII having "textual asymmetry" because it protects more than "employees", but also "individuals" who suffer discrimination at the hands of employers.

In Reid , the Complainant was a physician who was recruited by a Medical Center and its subsidiary medical management company to set up a medical practice. The Complainant entered into a contract with the medical management company, which broadly provided that the Complainant would render medical services to patients and the management company would provide administrative, managerial and organizational support. The Secretary detailed the specifics of the contract and focused on the degree of control the management company possessed over the manner and means by which the Complainant delivered medical services, using the test stated in Community for Creative Non- Violence v. Reid, 490 U.S. 730, 751-752 (1989). The Secretary, weighing the facts presented concluded that the Complainant failed to establish a prima facie showing that he was an employee of either the medical center or the management company.

XIV A 2 a Attorney

An attorney employed by a covered employer is an "employee" within the meaning of the employee protection provisions of the CAA and other environmental protection laws. Willy v. The Coastal Corp., 85- CAA-1 (Sec'y June 4, 1987) (order of remand).

XIV. A. 2. a. Attorney as employee

In Willy v. The Coastal Corp., 85-CAA-1 (Sec'y June 1, 1994), Respondent fired Complainant as one of its in-house attorneys for failing to report a telephone call to a state agency and lying about it when asked by his supervisor; the ALJ found after a hearing that Respondent fired Complainant both because of his lie about the phone call and because of Complainant's internal memorandum on Respondent's violations of the environmental laws.

Respondent excepted on the ground that attorneys 1) they owe special ethical obligations to their clients, 2) the statutes were not intended to apply to attorneys, and 3) any disagreement between a client and an attorney would be protected whistleblowing under the ALJ's decision, impermissibly extending the scope of the acts far beyond their intent.

The Secretary rejected Respondent's first argument based on ethical considerations based on ethical codes and case law that uniformly indicate that an attorney may reveal a communication or advice to a client when the attorney and client become opponents in a subsequent controversy, to the extent necessary to defend his or her rights.

The Secretary noted that Respondent's second and third arguments had been rejected in an earlier decision in the case, in which the conclusion was that "[t]here is nothing in any of the statutes or their legislative histories to indicate an intention on the part of Congress to place any limitation on the meaning of the word 'employee.'" Willy v. The Coastal Corporation , 85-CAA-1 (Sec'y June 4, 1987), slip op. at 8.

In addition, the Secretary noted that the

consequences of Respondent's position would be startling: a covered employer could fire an attorney who files a formal complaint with EPA or appears as a witness at an EPA proceeding, or even appears as a witness in a Department of Labor hearing on a whistleblower complaint filed by a nonlawyer. I note that other statutes regulating the employer-employee relationship, including retaliatory discharge laws, have been held to apply to attorneys, both as employees of corporations and of law firms. See , e.g. , Hishon v. King & Spalding , 467 U.S. 69 (1984) (application of Title VII of Civil Rights Act of 1964 in sex discrimination suit against law firm does not violate firm's First Amendment rights); Rand v. CF Industries, Inc. , 797 F. Supp. 643, 645 (N.D. Ill. 1992) (denying motion to dismiss Age Discrimination in Employment Act claim by in-house attorney for lack of coverage of attorneys).

[Nuclear & Environmental Whistleblower Digest XIV A 2 b]
EMPLOYEE; MERE JOB APPLICANT IS NOT AN "EMPLOYEE" UNDER THE PLAIN LANGUAGE OF THE ENERGY REORGANIZATION ACT

In Vander Boegh v. EnergySolutions, Inc. , No. 14-5047 (6th Cir. Nov. 18, 2014) (case below W.D.Ky No. 5:10-cv-0003, ALJ No. 2006-ERA-26), the Plaintiff-Appellant applied for a job with the Defendant-Appellee. He alleged that he was not hired because he engaged in protected whistleblowing activity at a prior job. The district court granted summary judgment against the Plaintiff-Appellant on the ground that he lacked statutory standing as an applicant rather than an employee under the Energy Reorganization Act (ERA). The Sixth Circuit affirmed the district court's holding. The court noted that the ERA provides that "[n]o employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment" because the employee engaged in an activity protected by the statute. 42 U.S.C. § 5851(a)(1). The court noted that although the ERA defines the term "employer," it does not define "employee." 42 U.S.C. § 5851(a)(2). The court noted that the regulations also do not define "employee." See 29 C.F.R. § 24.100-05.

Consequently, the court referenced dictionary definitions for guidance as to the plain meaning of "employee." With some variation in details, those definitions essentially indicate that an employee is someone who works for another person. The court found that as a mere applicant, the Plaintiff-Appellant was not an employee under the plain language of the statute. The court found further support for this finding in the fact that the ERA's definition of "employer" includes an "applicant" for an NRC license, but omits any definition of "employee." The court found that this omission supported a finding that Congress did not intend "employee" to include applicants. The also found support for its finding in Supreme Court authority that instructs on how to interpret "employee" when Congress does not define it. The court distinguished its decision in Demski v. U.S. Department of Labor , 419 F.3d 488 (6th Cir. 2005), because in that case there was a contractual relationship between the complainant and her corporations and the ERA-covered employer, whereas in the instant case there was never a contractual relationship.

Although the Plaintiff-Appellant's action included four environmental whistleblower statutes (the SDWA, CWA, TSCA and SWDA), the court did not reach the issue of whether an applicant has standing under those laws because it found that it did not have subject matter jurisdiction because those statutes provided for administrative review by the USDOL followed by a direct appeal to the court of appeals. Here, the Plaintiff-Appellant was appealing from a district court's dismissal of those causes of action, also on the ground of lack of jurisdiction.

The court also did not reach the Plaintiff-Appellant's alternative argument that he was an employee of the Defendant-Appellee by virtue of a contractual right of first refusal between the Department of Energy and the a company to which the Defendant-Appellee was a subcontractor for waste management services. The court did not reach this argument because it affirmed the district court's finding that the law of the case was that the Plaintiff-Appellant's contractual status had already been considered and rejected.

[Nuclear & Environmental Whistleblower Digest XIV A 2 b]
COVERED EMPLOYEE; JOB APPLICANTS ARE NOT WITHIN THE MEANING OF "EMPLOYEE" UNDER THE ERA, SWDA, CWA, SDWA AND TSCA WHISTLEBLOWER PROVISIONS, AND DO NOT HAVE STANDING TO BRING A RETALIATION COMPLAINT

In Vander Boegh v. EnergySolutions, Inc. , No. 5:10-cv-31 (W.D.Ky. Dec. 17, 2013) (case below 2006-ERA-26), the Plaintiff was employed by WESKEM as a landfill manager. WESKEM ceased operations and the Plaintiff's employment with WESKEM was terminated. The Defendant, EnergySolutions, then took over waste management at the landfill. The Plaintiff was never employed, managed, paid or supervised by the Defendant; there was no contractual relationship between the Plaintiff and the Defendant; the Defendant took no affirmative action indicating that it intended to employ the Plaintiff. The Plaintiff filed an employment discrimination complaint with the Department of Labor under the Energy Reorganization Act, the Solid Waste Disposal Act, the Clean Water Act, the Safe Drinking Water Act and the Toxic Substances Control Act, and subsequently removed the action to federal district court. The complaint essentially alleged that the Defendant did not hire him because of his reports of environmental violations to a former employer and because years earlier he had engaged in protected activity under the False Claims Act. The court dismissed the retaliation claims because all of the pertinent statutes require an employment relationship to confer standing. The Plaintiff contended that the statutes should be read to cover not only employees, but also applicants for employment. The court reviewed the statutory language of the ERA and the environmental statutes, and found that the conventional master-servant relationship under common law agency doctrine was applicable, citing Nationwide Mut. Ins. Co. v. Darden , 503 U.S. 318, 322-23 (1992). The court noted that the Sixth Circuit, in applying Darden , held that a complainant must be a "hired party" to be able to bring an ERA retaliation claim. Demski v. U.S. Dep't of Labor , 419 F.3d 488, 491-92 (6th Cir. 2005); accord O'Connor v. Davis , 126 F.3d 112, 115 (2d Cir. 1997).

XIV A 2 b Former employee may be covered

Where the complainant had been employed by the respondent on several occasions, had filed a ERA complaint after the first period which was settled, was employed again and then laid off, and was denied reemployment allegedly because of past poor performance, the ALJ erred in recommending dismissal on the ground that the complainant was not an employee of the respondent at the time of the alleged discrimination. The Secretary stated that several of her previous decisions were directly on point:

In [ Flanagan v. Bechtel Power Corp., 81-ERA-7 (Sec'y June 27, 1986)], a case arising under the ERA, the complainant was an electrician who had worked for Bechtel Corporation at various times prior to the date of alleged discrimination. When he applied for reemployment, Bechtel refused to rehire him. Complainant alleged that the refusal was in retaliation for his making safety complaints to the Nuclear Regulatory Commission. The threshold issue in [ Flanagan ] was whether the ERA covers a former employee. The Secretary adopted the ALJ's conclusion and reasoning, holding that "the term 'employee' may include former employees." Slip op. at 9. The Secretary explicitly overruled [ King v. Tennessee Valley Authority, 80-ERA-1 (Sec'y May 20, 1980) and Greenwald v. The City of North Miami Beach, 78-SWD-2 (Sec'y Apr. 14, 1980)]. Id .

Similarly, in [ Chase v. Buncombe County, N.C., 85-SWD-4 (Sec'y Nov. 3, 1986)], the Secretary held that the employee protection provision of the Solid Waste Disposal Act, 42 U.S.C. § 6971(a) (1982), may cover former employees. Slip op. at 3-4. In that case, as here, the complainant applied for reemployment after the settlement of a previous complaint. Settlement of such a prior complaint does not, as urged by Respondent here, preclude litigation of an alleged separate and distinct act of discrimination after the settlement. See also [ Egenrieder v. Metropolitan Edison/G.P.U/, 85-ERA-23 (Sec'y Apr. 20, 1987)] (blacklisting a former employee for protected activities is prohibited under the ERA). See 29 C.F.R. § 24.2(b) (1988).

Cowan v. Bechtel Construction, Inc., 87-ERA-29 (Sec'y Aug. 9, 1989).

[N/E Digest XIV A 2 b]
FORMER EMPLOYEE

In Robinson v. Shell Oil Co. , No. 95-1376 (Feb. 18, 1997) (available at 1997 U.S. LEXIS 690), the United States Supreme Court held that term "employees" in Title VII includes former employees. Thus, a former employee may sue a former employer for alleged retaliatory post-employment actions, such as negative references to prospective employers.

[Editor's note: Please note that this is a Title VII decision, and did not involve an STAA, or a nuclear or environmental whistleblower complaint].

FORMER EMPLOYEE; COVERAGE IF THE ALLEGED DISCRIMINATION AROSE OUT OF THE EMPLOYMENT RELATIONSHIP
[N/E Digest XIV A 2 b]

In The Connecticut Light & Power Co. v. Secretary of the United States Dept. of Labor , No. 95-4094 (2d Cir. May 31, 1996) (available at 1996 U.S. App. LEXIS 12583)(case below 89-ERA-38), the court affirmed the Secretary's holding that a former employee of the Respondent was an "employee" within the meaning of the employee protection provision of the ERA because the alleged discrimination arose out of the employment relationship: an offer of settlement containing an improper gag provision.

XIV A 2 b Terminated employee's complaint to management is protected activity

In Garn v. Toledo Edison Co., 88-ERA-21 (Sec'y May 18, 1995), the Secretary rejected the ALJ's conclusion that the Complainant's meeting with a Vice-President for the Respondent was not protected activity because the Complainant -- whose employment with the Respondent had already been terminated -- had already raised those his concerns with the "proper official, the ombudsman." The ALJ had been persuaded by the fact that the Respondent had not represented that the Vice-President or other officers were channels for former or terminated employees' concerns.

The Secretary held that it was sufficient that the complaints were directed to the Respondent's management. The Secretary wrote: "A terminated employee might be viewed by management as an even more serious threat to cause trouble or expose wrongdoing, and the manager could still retaliate by interfering with prospective employment." Slip op. at 3 (footnote and citation omitted).

XIV A 2 b Former employee; applicant

In Greenwald v. The City of North Miami Beach, 78-SDW-1 (Sec'y Apr. 3, 1978), aff'd, Greenwald v. North Miami Beach, 587 F.2d 779 (5th Cir. 1979), cert. denied, 44 U.S. 826 (1979), the Complainant's complaint under the employee protection provision of the SDWA was found to be time barred.

Subsequently, the Complainant reapplied for employment, and upon being told that there was no vacancy, filed a complaint alleging continuing discrimination. The Secretary adopted the following language from the ALJ's recommended decision:

A review of the statutory language, history, and cases provides no basis for a complaint by an applicant for a position, unlike Title VII of the Civil Rights Act, nor is there any basis for complaint by a former employee whose previous employment relationship has already been subjected to an opportunity for hearing and is now closed off by a final order. To find jurisdiction here it would be necessary to go behind the earlier case, Case No. 78-SDWA-1, to find the employment relationship requisite to this proceeding, and to reopen issues involved there. The doctrine of res judicata bars reopening such matters which have become final.

Therefore, absent the existence of an employer-employee relationship, there is no subject matter jurisdiction and the complaint must be dismissed.

Greenwald v. The City of North Miami Beach, 80-SDW- 2 (Sec'y Apr. 14, 1980).

XIV A 2 b Standing of former employee

A former employee is protected under ERA. Thus, where a complainant was terminated on August 1, 1987, but alleged a retaliatory act -- delayed implementation of a March 1989 EEOC order issued in the complainant's favor because of complainant's participation in an ERA proceeding in July 1989 -- the allegation fit within the statute's prohibition of discrimination based on participation in an ERA proceeding.

Grizzard v. Tennessee Valley Auth., 90-ERA-52 (Sec'y Sept. 26, 1991).

XIV A 2 b Job applicant (former employee)

In Flanagan v. Bechtel Power Corp., 81-ERA-7 (Sec'y June 27, 1986), relying to great extent on the ALJ's analysis, the Secretary found that the ERA definition of "employee" may include former employees. The ALJ had analyzed the purpose of the Act, the Senate Report, the fact that the regulation refers to blacklisting, and analogous NLRB authority. To this discussion the Secretary added a quotation from the United States Supreme Court in Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941):

To differentiate between discrimination in denying employment and in terminating it, would be a differentiation not only without substance, but in defiance of that against which the prohibition of discrimination is directed.

313 U.S. at 188.

[Editor's note: In Flanagan, the Secretary indicates that he is overruling King v. Tennessee Valley Authority, 80- ERA-1 (Sec'y May 20, 1980) and Greenwald v. The City of North iami Beach, 80-SDW-1 (Sec'y Apr. 3, 1978), to the extent that they are inconsistent. The Secretary cites Greenwald as 78-SDWA (1980), but the reference to 78-SDWA is obviously an error because Greenwald v. The City of North Miami Beach, 78-SDW-1 (Sec'y Apr. 3, 1978), aff'd, Greenwald v. North Miami Beach, 587 F.2d 779 (5th Cir. 1979), cert. denied, 44 U.S. 826 (1979), involved Greenwald's first, untimely complaint. The second complaint with the 80-SDW docket number involved Greenwald's refusal to rehire complaint.

Incidently, in Greenwald, 80-SDW-1 there was something else going on -- Greenwald's original complaint had been dismissed as untimely and Greenwald appeared to be attempting to resurrect his untimely complaint by the simple expedient of forcing Respondent to discriminate again. The Greenwald decision is a murky mix of questions of res judicata and whether a former employee is protected. I'm not sure how this all plays out, but I think it would be a mistake to dismiss Greenwald as being completely overruled by Flanagan , at least to the extent that there are res judicata or collateral estoppel issues involved.]

XIV A 2 b Job applicant (former employee)

In King v. Tennessee Valley Authority, 80-ERA-1 (Sec'y May 20, 1980), the Secretary adopted a recommended decision of the ALJ in which the ALJ had stated "I find nothing in the Act which indicates that [Section 210] is to be applied retroactively to persons whose employment ended prior to the enactment of the statute; likewise I find nothing to indicate that this section is to be applied to former employees who were discharged for cause * * * The language of the statute clearly refers to a person who is an employee, not to a persons who is seeking to become employed."

As described more fully in the ALJ's recommended decision, King v. Tennessee Valley Authority, 80-ERA-1 (ALJ ar. 28, 1980, Complainant had been discharged from his job as a painter at a nuclear plant for bringing a firearm onto the project in violation of a posted job rule. Complainant's complaint was based on refused re-employment because of complaints made to the NRC about the quality of certain painting at the plant. The ALJ found, however, that Complainant had been refused re-employment for the legitimate reasons of a past discharge for unsatisfactory conduct in the work area and the presence of more qualified applicants (on a fourth re-application, the applicant pool was smaller and Complainant was re-hired).

[Editor's note: A new Secretary of Labor overruled King to the extent it conflicted with his decision in Flanagan v. Bechtel Power Corp., 81-ERA-7 (Sec'y June 27, 1986). In Flanagan , relying to great extent on the ALJ's analysis rejecting King , the Secretary found that the ERA definition of "employee" may include former employees.]

XIV A 2 b When a former employee may bring an ERA suit

A former employee may bring an employee protection suit under the ERA as long as the alleged discrimination is related to or arises out of the employment relationship. Delcore v. W.J. Barney Corp., 89-ERA-38 (Sec'y Apr. 19, 1995).

XIV A 2 b Former employee covered if discrimination is related to or arises out of the former employment relationship

Under remedial legislation, the term "employee" is construed broadly to include a former employee as long as the alleged discrimination is related to or arises out of the employment relationship. Delcore v. Northeast Utilities, 90-ERA-37 (Sec'y Mar. 24, 1995) (citing several federal court decisions).

XIV A 2 c Government employee

EPA filed a motion for summary decision in Emory v. United States Environmental Protection Agency , 93-SDW-4 (ALJ Dec. 3, 1993), contending that the Civil Service Reform Act is the exclusive remedy for federal employee whistleblower, that the United States and federal agencies are not covered employers, and that federal employees are not covered employees.

In denying the motion, the ALJ found that

the Secretary rejected the argument that the Civil Service Reform Act of 1978 provide a preemptive and exclusive remedy for federal employee whistleblowers in Conley v. McClellan Air Force Base, 84-WPC-1 (Sec'y Sept. 7, 1993), slip op. at 9-17, and Pogue v. United States Dept. of Navy, 87-ERA-21 (Sec'y May 10, 1990), rev'd on other grounds , Pogue v. United States Dept. of Labor, 940 F.2d 1287 (9th Cir. 1987);
Complainant was an employee, and nothing in the statutes or the legislative history of the statutes adjudicated under Part 24 suggests exclusion of government employees;
EPA was a "person" subject to the employee protection provisions of all the statutes invoked except the Clean Water Act (the United States is expressly included as a person under the ERA, CAA, CERCLA, SDWA and SWDA, and by reference to the citizen's suit sections of the TSC);
CAA, CERCLA, CWA, SDWA, SDWA all have virtually identical federal facilities provisions. The federal facilities provision of the CWA was found by the Secretary in Conley to subject the federal government to all requirements of the CWA; CERCLA's federal facilities provision was interpreted much the same way in Pogue .

[Nuclear and Environmental Whistleblower Digest XIV A 2 c]
COVERED EMPLOYERS; ENERGY POLICY ACT OF 2005; THE NRC; NRC CONTRACTORS AND SUBCONTRACTORS; DEPARTMENT OF ENERGY

On August 8, 2005, President Bush signed the Energy Policy Act of 2005 . The Act amends the Energy Reorganization Act to extend liability under the ERA whistleblower provision to the Nuclear Regulatory Commission, contractors or subcontractors of the Commission, and the Department of Energy.

[Nuclear and Environmental Digest XIV A 2 d]

COVERED EMPLOYEE; ENGINEER WHO FOUNDED A COMPANY THAT PROVIDES PERSONAL SERVICES TO THE NUCLEAR INDUSTRY; ARB FINDS THAT HILL AND OTTNEY INDICATES THAT SUCH AN ENGINEER IS AN EMPLOYEE UNDER THE PROPERLY BROAD INTERPRETATION OF THE ERA; ARB QUESTIONS WHETHER DEMSKI WAS PROPERLY DECIDED

In Robinson v. Triconex Corp. , ARB No. 10-013, ALJ No. 2006-ERA-31 (ARB Mar. 28, 2012), the ARB - describing the facts in the light most favorable to the Complainant for purposes of reviewing the ALJ's grant of summary decision - found that the Complainant was a nuclear engineer with extensive experience in the nuclear industry. He provided nuclear quality engineering services to clients as of a company that he operated with this wife. The Respondent was a company that supplies products, systems, and services as a subcontractor. The Complainant provided services to the Respondent at a nuclear power plant pursuant to an "Associate Supplier Master Service Agreement" that the Complainant, as President of his company, entered into with TAC Worldwide (TAC). The ARB found that the Complainant had been hired on June 1, 2004, as a nuclear quality assurance engineer to support the Respondent's Quality Assurance programs. In August 2005, the Complainant was involved in directing the test engineer to temporarily suspend testing, and in September 2005, the Complainant was terminated. The next month, TAC terminated its contract with the Complainant for provision of services to the Respondent.

The Complainant filed a complaint with OSHA under the ERA whistleblower provision, and a state court action for wrongful termination and other claims. In the state proceedings, the courts found on summary judgment that the Complainant's was not an employee of the Respondent. The state court of appeals based its decision on the Supreme Court's Darden common law agency test and analogized the Complainant's circumstances to those discussed in Demski v. Dept. of Labor , 419 F.3d 488 (6th Cir. 2005).

The DOL ALJ, applying the doctrine of collateral estoppel, later granted partial summary decision in favor of the Respondent on the issue of whether there was a common law master-servant relationship between the Respondent and the Complainant. The ALJ later issued a second summary decision in favor of the Respondent based on her finding that the Complainant was not an employee of a contractor of the Respondent.

On appeal, the ARB noted that federal courts have interpreted the ERA broadly to effectuate its protective and remedial purposes, and that the ARB had developed distinct approaches for determining when a complainant is an "employee" for purposes of qualifying for whistleblower protection under the ERA. The ARB found that the correct approach for the instant case was the statutory textual analysis explained in Hill and Ottney v. TVA , 1987-ERA-23 and 24 (Sec'y May 24, 1989). [The other test is the "right to control" test developed under the Clean Air Act.] In Hill and Ottney the Secretary determined that under the ERA "any employee" could file a whistleblower claim against "any person," presumably any "employer" covered by the ERA whistleblower statute. The ARB stated that the Secretary made it clear that the ERA did not require an "employee-employer relationship" nor proof of the employer's "right to control" the complainants. The ARB found that the facts of the case suggested that when he was terminated, the Complainant was working as a quality assurance worker and would thus qualify as an employee under the ERA. The ARB, however, remanded the issue to the ALJ to make appropriate findings of fact in the first instance. The ARB also found that collateral estoppel did not preclude a determination that the Complainant was an employee under the ERA's whistleblower provision because the jurisprudence under the ERA whistleblower provision was distinct from the Darden common-law agency test upon which the California court relied.

In Demski v. Ind. Mich. Power Co. , ARB No. 02-084, ALJ No. 2001-ERA-35 (ARB Apr. 9, 2004), aff'd Demski v. Dept. of Labor , 419 F.3d 488 (6th Cir. 2005), the ARB concluded that because the complainant was an owner of the subcontracting company, not an employee, she was not a protected employee within the meaning of the ERA. The ARB recognized that the ALJ was bound by Demski if it was controlling, but noted that Demski arose in the Sixth Circuit and that the instant case did not arise in that circuit, and held that "[i]f the ALJ finds that Robinson is an employee under Hill and Ottney , then Demski will be irrelevant." The ARB continued:

Therefore, we reserve for another day whether the holding in Demski bars Robinson from protection under the ERA whistleblower statute. Nevertheless, we question the viability of Demski' s overly narrow interpretation of the term "employee" in the ERA whistleblower provision. Arguably, our precedent in Demski creates a "narrow, hyper-technical reading of the [ERA]" that runs afoul of the plain language of the statute and Kansas Gas & Electric . It also creates coverage issues that suggests an individual can be a covered employee one day at the work-site as an "independent contractor" or quality assurance worker but lose his or her coverage by coming back the next day to do the same exact work as the president or officer of a subcontracting company. Under the broad interpretation explained in Hill and Ottney , any on-site worker or any nuclear quality assurance worker is covered.

USDOL/OALJ Reporter at 12 (footnotes omitted).

XIV A 2 d Independent contractor

Independent contractors may be covered employees under the employee protection provisions of the ERA and analogous statutes. See, e.g., Royce v. Bechtel Power Corp., 83-ERA-3 (ALJ ar. 24, 1983), aff'd (Sec'y July 11, 1985) (temporary contract worker) and Faulkner v. Olin Corp. , 85-SWD-3 (ALJ Aug. 16, 1985), aff'd (Sec'y Nov. 18, 1985) (under Solid Waste Disposal Act).

Crosier v. Portland General Electric Co., 91-ERA-2 (Sec'y Jan. 5, 1994).

[Nuclear and Environmental Whistleblower Digest XIV A 2 d]
COVERED EMPLOYEE; USE OF COMMON LAW DARDEN FACTORS; COMPLAINANT WHO WAS THE SOLE SHAREHOLDER OF CORPORATIONS THAT SUPPLIED CONTRACT SERVICES WAS NOT EMPLOYEE

In Demski v. USDOL , No. 04-3753 (6th Cir. Aug. 17, 2005) (case below ARB No. 02-084, ALJ No. 2001-ERA-36), the Petitioner was the president and sole shareholder of corporations that supplied contract labor and technical knowledge to power-generating plants, including a contract to main ice condensers. The Petitioner learned of serious safety problems with an ice condenser and reported those problems to the power plant. The power plant thereafter terminated the ice condenser contract, refused the Petitioner's bids to continue on two other contracts, and revoked employee access badges for the Petitioner and her employees. The ALJ and the ARB granting summary decision finding that the Petitioner was not an "employee" within the meaning of the ERA whistleblower provision, applying the common law definition of employee stated in Nationwide Mut. Ins. Co. v. Darden , 503 U.S. 318, 322-23 (1992). The Sixth Circuit affirmed the use of Darden to define the meaning of an "employee" under the ERA, and the weighing of the Darden factors in this case to find that the Petitioner was not an employee.

DEFINITION OF "EMPLOYEE"; SIXTH CIRCUIT'S APPROVAL OF DOL'S USE OF DARDEN TEST FOR CONTRACTORS
[N/E Digest XIV A 2 d]

In Reid v. Secretary of Labor , No. 95-3648 (6th Cir. Dec. 20, 1996)(unpublished decision available at 1996 U.S. App. LEXIS 33984)(case below, 93-CAA-4), the Sixth Circuit affirmed the Department of Labor's use of the common law definition of "employee" enunciated by the Supreme Court in Nationwide Mutual Ins., Co. v. Darden , 503 U.S. 318, 117 L.Ed. 2d 581, 112 S.Ct. 1344 (1992), to determine whether an independent contractor is an "employee" within the meaning of the whistleblower statutes.

XIV A 2 d EMPLOYMENT RELATIONSHIP; SUBCONTRACTOR

In Stephenson v. National Aeronautics & Space Administration , 94-TSC-5 (Sec'y Sept. 28, 1995), the Secretary reconsidered a decision that even though the Complainant had failed to counter Respondent's Fed. R. Civ. P. 12(b)(1) motion to dismiss based on Complainant's not being an employee within the meaning of the TSCA, that defense could not be raised prior to hearing because the Respondent had previously raised a 12(b)(6) motion to dismiss. Although the reconsideration decision focused on the relationship between 12(b)(1), 12(b)(6) and Rule 56 and the standards applied to such motions, the Wage and Hour Administrator position in a request for opportunity to participate in the reconsideration may be of interest. Request by the Wage and Hour Administrator for Opportunity to Participate (filed in Case No. 94-TSC-5 Sept. 22, 1995). The ALJ had originally recommended dismissal on the ground that the Complainant was an employee of Martin Marietta and not NASA, relying on Reid v. Methodist Medical Center of Oak Ridge, 93-CAA-4 (Sec'y Apr. 3, 1995), appeal docketed No. 95-3648 (6th Cir. June 1, 1995). The Administrator raised the question whether the subcontractor relationship between the Complainant's employer and the Respondent makes the case distinguishable from Reid . The Administrator suggested that employer liability may be found pursuant to Hill v. Tennessee Valley Authority, 87-ERA-23 (Sec'y May 24, 1989). The Secretary did not address this point in the September 29, 1995 Order of Remand.

See also Varnadore v. Oak Ridge National Laboratory , 95-ERA-1 (ALJ Sept. 20, 1995) (ALJ recommended dismissal of DOE where Complainant was employed by Martin Marietta, which operates DOE's Oak Ridge facility).

XIV A 2 d Independent contractor

Crosier v. Portland General Electric Co., 91-ERA-2 (Sec'y Jan. 5, 1994).

XIV A 2 d Independent Contractor

In McAllen v. U.S. Environmental Protection Agency, 86-WPC-1 (ALJ Nov. 28, 1986), settled while on review before the Secretary (Sec'y May 5, 1987), the Complainant was hired by B.E.S. Envirnomental Specialists (BES) to work with the EPA on the Northwestern Oil Spill Project (Project). The Project identified oil spills which posed an actual or potential water pollution problem. Although the Complainant originally approached the EPA about employment with the Project, since the EPA had a hiring freeze, she was told to seek employment with BES and work for the EPA on a contract basis.

While working with the EPA on the Project, the Complainant expressed criticisms and concerns about funds being spent improperly, which she believed jeopardized the environmental cleanup program. These complaints took the form of internal reports to her supervisors as well as reports to parties outside the Project. Subsequently, the Complainant's contract was terminated without warning.

The ALJ held that although the Complainant was a contractor with the EPA, for the purposes of the Act, she was an employee. In making this determination, the ALJ cited Faulkner v. Olin Corporation, 85-SDW-3 (ALJ Aug. 16, 1985), adopted (Sec'y Nov. 18, 1985).

XIV A 2 d Right-to-control test

In Landers v. Commonwealth-Lord Joint Venture, 83- ERA-5 (ALJ May 11, 1983), adopted (Sec'y Sept. 9, 1983), the ALJ concluded that Complainant, a contract employee, was an employee within the purview of section 5851(a) of the ERA. The ALJ relied on the common-law right-to-control test, and NLRB case law to the effect that an employee need not be in a technical employer-employee relationship with any particular employer in order to receive protection from threats of coercion. In finding Complainant to be an "employee" under section 5851, the ALJ relied on Respondent's involvement in the selection process, the everyday control it exercised, its common supervision of all employees, and that Respondent unilaterally determined the termination of Complainant's employment, notwithstanding evidence that a job shop prepared Complainant's paycheck, withheld usual deductions and provided workers' compensation.

[Editor's note: The 7th Circuit published a decision in which it denied a stay of the Secretary's reinstatement order pending review by that court. Commonwealth-Lord Joint Venture v. Donovan, 724 F.2d 67 (7th Cir. 1983). Evidently the case was resolved in an unpublished decision, of which I do not have a copy.]

XIV A 2 d Independent contractor

In Stultz v. Buckley Oil Co., 93-WPC-6 (ALJ Aug. 23, 1993), Complainant was hired as a management consultant by Respondent on a short term basis, although there were ongoing negotiations for a more permanent employment relationship. The threshold issue was whether Complainant was an "employee" within the meaning of the Federal Water Pollution Control Act. The ALJ noted that none of the Acts that could be applicable to the instant case included a definition of the term "employee," and therefore turned to the United States Supreme Court decision in Nationwide Mut. Ins. Co. v. Darden, 112 S. Ct. 1344 (1992), in which the holding in Community for Creative Non-Violence v. Reid, 490 U.S. 730, 109 S. Ct. 2166 (1989) was reiterated. In Reid , the Court held that when a statute containing the term "employee" does not helpfully define it "the conventional master- servant relationship as understood by common-law agency doctrine" should be applied. The Court summarized the test as follows:

In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.

The Court also quoted NLRB v. United Ins. Co. of America, 390 U.S. 254, 258; 88 S. Ct. 988, 991 (1986), as follows:

Since the common-law test contains 'no shorthand formula or magic phrase that can be applied to find the answer, . . . all of the incidents of the relationship must be assessed and weighed with no one factor being decisive.'

XIV A 2 d Independent contractors

In Samodurov v. Niagara Mohawk Power Corp., 89-ERA- 20 and 26 (ALJ Dec. 12, 1989), the ALJ concluded that an independent contractor whose unsolicited resume was rejected was not a protected "employee" under the whistleblower provision of the ERA. The ALJ distinguished the decision of the ALJ in Young v. Hinds, 86-ERA-11 (ALJ Apr. 9, 1986) on the ground that in that case the complainant was attending a training session whereas in the instant case the complainant never was hired nor asked to report to the power plant.

Young was also distinguished on the ground that the complainant presented himself as an independent contractor.

[Editor's note: The ALJ had earlier dismissed the complaints against Mohawk Power Corporation based on a settlement agreement. General Physics Corporation, however, remained as a respondent in 89-ERA-20. The Secretary's Final Order of Dismissal date March 28, 1990 references the ALJ's December 12, 1989 decision, but simply affirms the settlement agreement and does not address the disposition of the complaint against General Physics.]

XIV A 2 d Physician working through management company

See Reid v. Methodist Medical Center of Oak Ridge, 93-CAA-4 (Sec'y Apr. 3, 1995), casenoted in more detail at XIV A 1 , finding that a physician recruited by a medical management company and hospital to set up a practice with managerial and organizational support from the management company was not an "employee" within the meaning of the environmental whistleblower provisions.

XIV A 2 e Prison inmate

In Plumley v. Federal Bureau of Prisons, 86-CAA-6 (ALJ Dec. 31, 1986) (order denying motion to dismiss), Complainant was a prison inmate. Respondent contended in a motion to dismiss that Complainant is not an employee under the whistleblower provisions of the CAA and the TSC because (1) a traditional employer-employee relationship does not exist; (2) such an interpretation is not within the Acts' purpose; and (3) the safety of the prison environment requires such a finding.

The ALJ looked to the Black's Law Dictionary definition of "employee" and applied a "right to control and direct" test and a "payment of wages" test. Since inmates had a supervisor, could be hired or fired, and were paid wages, the ALJ found that an employer-employee relationship exists.

Second, the ALJ found that close consideration of the CAA and the TSCA revealed no distinction based on whether violations were reported by civilian or prison-inmate employees.

Finally, the ALJ rejected Respondent's contention that permitted prison-inmates to file DOL whistleblower suits would disrupt the orderly running of the prison by laying the foundation for mass disobedience. According to the ALJ, all it does is allow an inmate the opportunity to report violations -- the manner in which complaints are filed could still be controlled by prison officials.
[Editor's note: The parties later settled this case, so the Secretary never reviewed these rulings by the ALJ]

[N/E Digest XIV A 2 e]
EMPLOYEE; PRISON INMATE NOT AN EMPLOYEE UNDER CAA OR TSCA

In Coupar v. U.S. Dept. of Labor , No. 95-70400 (9th Cir. Jan. 30, 1997) (available at 1997 U.S. App. LEXIS 1523)(case below 92-TSC-6), the Seventh Circuit held that a prison inmate who works for Federal Prison Industries (a government corporation whose purpose is to provide work to inmates confined in federal institutions) is not an employee within the meaning of the whistleblower provisions of the Clean Air Act, 42 U.S.C. § 7622, and the Toxic Substances Control Act, 15 U.S.C. § 2622 because the economic reality of this relationship is "penological, not pecuniary." Slip op. at *7, citing Hale v. Arizona , 993 F.2d 1387, 1393 (9th Cir.) (en banc), cert. denied , 510 U.S. 946, 126 L. Ed. 2d 335, 114 S. Ct. 386 (1993).

The court distinguished Community for Creative Non-Violence v. Reid , 490 U.S. 730, 739, 104 L. Ed. 2d 811, 109 S. Ct. 2166 (1989) and Nationwide Mutual Insurance Co. v. Darden , 503 U.S. 318, 117 L. Ed. 2d 581, 112 S. Ct. 1344 (1992), on the ground that those tests are only useful for determining whether an individual is an employee or an independent contractor. Here the problem is that work as a prisoner made Complainant neither an employee nor an independent contractor.

XIV A 2 e Prison inmate

In Teves v. Federal Prison Industries (UNICOR), 91- CAA-1 (Apr. 25, 1991) and Nottingham v. Federal Prison Industries (UNICOR), 91-CAA-2 (ALJ Apr. 23, 1991), the ALJ held that a prison inmate is not an employee within the meaning of the employee protection provisions of either the Clean Air Act or the Toxic Substances Control Act. This finding was based on the rationale that the Complainant's status arises out of incarceration and not a voluntary contract for hire.

The ALJ disagreed with the decision of the ALJ in Plumley v. Federal Bureau of Prisons, 86-CAA-6 (ALJ June 22, 1987), which indicated that federal prison inmate workers were employees entitled to protection under the CAA and TSC. [Editor's note: Plumley was settled, and the Secretary did not rule on this point of law]

The ALJ recognized that the term "employee" should be broadly construed under the present statutory provisions, but declined believed that to extend protection to prisoners would convolute the normally recognized concept of an employer-employee relationship. He also cited authority from various Fair Labor Standards Act decisions.

XIV A 2 e Prison inmate

In Coupar v. Federal Prison Industries/Unicor, 92- TSC-6 and 8 (ALJ June 11, 1992), the ALJ cited Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), in determining whether a federal prison inmate is an "employee" for purposes of the TSCA and the CAA: "when Congress has used the term 'employee' without defining it," the Court has "concluded that Congress intended to describe the conventional master-servant relationship as understood by common law agency doctrine." Reid , 490 U.S. at 739-40. Since "employee" is not defined by the TSCA or the CAA, the ALJ concluded that the conventional master- servant relationship should be applied, and looked specifically to the Restatement (Second) of Agency § 220(2) (1958) for guidance.

Noting that there was no prescription on utilizing traditional employment tests to inmates, citing Baker v. McNeil Island Corrections Center, 859 F.2d 124 (9th Cir. 1988) (inmate was an "employee" for purposes of Title VII), the ALJ looked at Respondent's right to control the work (Respondent had the right and did closely regulate the manner of work), other elements of control and supervision (Respondent supplied the instrumentalities and tools, the work site, and other factors), the nature of the hiring party (a government corporation that "recruits" inmates), the nature of the work (manufacturing of chairs, helmets and lockers), the method of payment and employee benefits (workers did not appear to pay tax, but Respondent does use a traditional compensation package including pay grades, overtime, longevity pay, vacation credit, etc.). Based on these circumstances, and taking into consideration the remedial nature of the TSCA and the CAA and the strong public policy of fostering open communication, the ALJ concluded that Respondent's workers are employees within the meaning of the employee protection provisions of the TSCA and the CAA.

XIV A 2 e Prison inmate

In Coupar v. Federal Bureau of Prisons, 92-TSC-12 (ALJ May 13, 1994), the ALJ concluded that a federal prison inmate who worked for the Federal Prison Industries is not an "employee" for purposes of the whistleblower provisions of the CAA and the TSCA because the relationship is one arising out of incarceration and not a voluntary employment relationship.

XIV A 2 e Prison inmate

Looking to holdings in cases involving the FLSA for guidance, and finding them better reasoned than one ALJ decision and one decision involving Title VII of the Civil Rights Act, the ALJ in Bryant v. Unicor/Federal Prison Industries, 92-CAA- 4 (ALJ Oct. 23, 1992), held that a prison inmate is not an employee within the meaning the employee protection provisions of the CAA or the TSCA. A prison inmate's relationship with the prison arises out of his or her incarceration, and not a voluntary contract to work.

XIV A 2 e Federal prison inmate is not an "employee' under the CAA or TSCA

In Coupar v. Federal Correctional Institution, El Reno, Oklahoma, 90-TSC-1 and 91-TSC-3 (Sec'y Feb. 28, 1995), the Secretary held that the Complainant, a prisoner incarcerated at a federal correctional facility, a is not an employee within the meaning of the CAA or the TSCA, and therefore could not invoke the employee protection provisions of those statutes.

In Coupar , the Complainant worked under the supervision of a prison industry, which was a corporation owned and operated by the federal government.

The Secretary concluded that where the term "employee" is not defined in the statute, it should be given its conventional master-servant meaning under common-law agency doctrine, citing Community for Creative Non-Violence v. Reid , 490 U.S. 730 (1989) and Nationwide Mutual Insurance Co. v. Darden , 112 S. Ct. 1344, 117 L. Ed. 2d 281 (1992). The Secretary found that a conventional master-servant relationship did not exist, the relationship being penological and not economic.

The Secretary noted that Congress had enacted legislation to enable the Attorney General and the Bureau of Prisons to establish rules and regulations governing the conditions of confinement. He concluded that Congress would not work a substantial change in prisoner rights without careful study and consideration, which was missing on this issue in the legislative history of the CAA and the TSCA. Although he recognized that not including prisoners within the protection of the whistleblower provision of the CAA and TSCA may result in some hazards going unreported, absent clear legislative intent to cover prisoners he would not interject "the Labor Department into the internal administration of the nation's prison system." Slip op. at 6.

To the same effect: Teves v. Federal Prison Industries (UNICOR), 91-CAA-1 (Sec'y Mar. 17, 1995); Nottingham v. Federal Prison Industries (UNICOR), 91-CAA-2 (Sec'y Mar. 17, 1995); Bryant v. Federal Prison Industries (UNICOR), 92-CAA-4 (Sec'y Mar. 17, 1995); Coupar v. Federal Prison Industries (UNICOR) , 92-TSC-6 and 8 (Sec'y ar. 17, 1995); Coupar v. Federal Prison Industries (UNICOR) , 92-TSC-12 (Sec'y Mar. 17, 1995).

But see Delaney v. Massachusetts Correctional Industries, 90-TSC-2 (Sec'y Mar. 17, 1995), involving a prisoner at a state correctional facility, in which the Secretary did not make any reference to whether a state prisoner is covered under the TSCA.

[Nuclear & Environmental Whistleblower Digest XIV A 2 f ]
COVERED EMPLOYEE; COMPLAINANT ALLEGEDLY KNOWN TO THE RESPONDENT TO BE CONSIDERING APPLYING FOR EMPLOYMENT (IN THE INSTANT CASE, RUNNING FOR PAID OFFICE)

In Slavin v. City of St. Augustine, Florida , ARB No. 07-002, ALJ No. 2006-CER-4 (ARB Mar. 31, 2008), the Complainant claimed that the Respondents discriminated against him in violation of CERCLA after he reported to Federal authorities that the City of St. Augustine, Florida, had dumped hazardous material into a city reservoir. OSHA and the ALJ dismissed the complaint on the ground that the Complainant was not an employee. The Complainant argued that case law recognizes that employment applicants have cognizable claims under laws like CERLCA, and that his complaint should not be dismissed because the Respondents knew that he was considering running for City Commissioner, a paid position, and in fact he later filed to run for that position. The ARB agreed that its caselaw permits employment applicants to bring whistleblower actions under laws similar to the whistleblower provision of CERCLA, but dismissed the complaint because the Complainant had not filed (i.e., applied) to run for City Commissioner until three months after the alleged discrimination, and because no authority supported the proposition that CERCLA covers "perceived potential applicants."

XIV A 2 f Prospective employee

In Young v. E.H. Hinds , 86-ERA-11 (ALJ Apr 8, 1986), the ALJ addressed the issue of whether the Complainant was an employee of the Respondent at the time of his discharge. The Area Director of the Wage and Hour Division determined that the Complainant was not entitled to protection under the ERA because he was a prospective employee. The ALJ noted that the ERA employee protection provision was patterned after the employee protection provision of the NLRA and that both share a broad, remedial purpose of protecting workers from retaliation based on their concerns for safety and quality. The ALJ stated that the employee protection provision of the NLRA has been interpreted broadly to prevent information from being suppressed by employer intimidation of prospective employees. He added that the identical purpose is served by a liberal interpretation of the employee protection provisions of the ERA. Consequently, he concluded that the term employee should be interpreted broadly enough to include prospective employees. The ALJ stated, however, that as a factual matter, the Complainant's status was not one of a prospective employee, but rather as an employee itself. The Complainant was under the Respondent's supervision and control while he was at the power plant. Additionally, the Complainant was obligated to attend a training session and was compensated for the time he spent at the plant, from which compensation the Respondent deducted social security and withholding taxes. Accordingly, the ALJ found that the Complainant was an employee of the Respondent at the time of the discharge. [Editor's note: The Secretary adopted the ALJ's ruling that the Complainant was an employee, and therefore, did not rule on whether a prospective employee is accorded protection under the ERA whistleblower provision. See Young v. E.H. Hinds, 86-ERA-11 (Sec'y July 8, 1987).]

XIV A 2 f Job applicant is a covered employee

In Stultz v. Buckley Oil Co., 93-WPC-6 (Sec'y June 28, 1995), the Complainant worked as a management consultant for the Respondent, during which various negotiations took place in which the Complainant unsuccessfully sought an arrangement to purchase the Respondent, and in which proposals and counter proposals about an employment relationship as general manager were discussed. In the end, the Respondent chose not to extend the consulting relationship and not to hire the Complainant as general manager.

The Secretary agreed with the ALJ that since the Complainant sought long term employment with the Respondent, he was a covered employee for purposes of the whistleblower statutes. The Secretary has held that applicants for employment are covered employees.

XIV A 2 f Union contract that defines applicant who takes test as an applicant

Where under Union Contract, a welder is "hired" and paid for the day he takes a welding test in application for a job, Respondent did not dispute that such "hiring" brought an employee protection complaint under the jurisdiction of the ERA. Crider v. Pullman Power Products Corp., 82-ERA-7 (ALJ Oct. 5, 1982), settled while under review (Sec'y Mar. 22, 1984).

XIV A 2 f Prospective employee

In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.

The Court also quoted NLRB v. United Ins. Co. of America, 390 U.S. 254, 258; 88 S. Ct. 988, 991 (1986), as follows:

Since the common-law test contains 'no shorthand formula or magic phrase that can be applied to find the answer, . . . all of the incidents of the relationship must be assessed and weighed with no one factor being decisive.'

XIV A 2 f Job applicant

In Samodurov v. General Physics Corp., 89-ERA-20 (Sec'y Nov. 16, 1993), the ALJ found that Complainant was not an "employee" under the ERA's employee protection provisions because he was an independent contractor whose only connection with Respondent was its rejection of his employment based on an unsolicited resume. The Secretary disagreed, stating that it was well established that the ERA covers applicants for employment. The Secretary noted that although he initially forwarded his resume without regard to a specific opening, Complainant was later invited to send an updated resume in response to an announcement of openings in quality assurances.

The Secretary also did not consider it a distinguishing factor that Complainant sought to be hired as an independent contractor. The Secretary noted that in determining whether a contractor is an employee within the ERA's protection, the decisions examine the degree of control or supervision by the respondent. In the instant case, since Complainant was not hired, there was no evidence of the degree of control, but the Secretary summarily dismissed that problem, stating: "The absence of such information in this complaint of an alleged discriminatory refusal to hire does not preclude a determination that [Complainant] was a covered employee. Accordingly, I find that, as an applicant for employment as a contractor, [Complainant] was a covered employee."

[Nuclear & Environmental Whistleblower Digest XIV A 2 g]
EMPLOYEE; MEMBER OF BOARD OF DIRECTORS FOR PUBLIC AUTHORITY

In Anderson v. Metro Wastewater Reclamation District , ARB No. 01 103, ALJ No. 1997 SDW 7 (ARB May, 29, 2003), Complainant argued that, while she was not an employee of Respondent as it is commonly defined, she was in fact employed by Respondent as a director for the Denver area wastewater reclamation district and received compensation for her service. The ARB, although not definitively reaching the issue because it was raised for the first time on appeal, strongly suggested in its decision that under the terms of her appointment, she most decidedly did not have an employer employee relationship with Respondent, and therefore did not have standing as an "employee" under th whistleblower provisions of the ERA and environmental statutes.

XIV B 1 Subject matter jurisdiction

In Coupar v. Federal Prison Industries/Unicor, 92- TSC-6 and 8 (ALJ May 8, 1992) (order granting request for subpoenas), the ALJ had occasion to address subject matter jurisdiction. Respondent contended that the ALJ should not issue certain subpoenas because Complainant assertedly was not an "employee" within the meaning of the Acts under which he brought his complaint.

Reviewing federal decisions and the decisions of the Secretary of Labor, the ALJ concluded that an ALJ has jurisdiction to hear a whistleblower case if the case is of a class that the judge has been given the power to hear, and the respondent employer is of a type that is covered by the statute or statutes in question.

The ALJ found that TSCA applies to all federal entities unless excepted, see 15 U.S.C. § 2619, and that Respondent was therefore an employer over which the ALJ had subject matter jurisdiction. The issue of whether Complainant (a federal prisoner) was an employee was a finding of fact to be determined.

[Editor's note: Respondent's employees refused to comply with the subpoenas. See Coupar v. Federal Prison Industries/Unicor, 92-TSC-6 and 8 (ALJ June 11, 1992).]

The ALJ revisited the subject matter jurisdiction question in his Recommended Decision and Order. Coupar v. Federal Prison Industries/Unicor, 92-TSC-6 and 8 (ALJ June 11, 1992). The ALJ concluded there that "an ALJ has jurisdiction over whistleblower cases where (1) the employer is subject to the whistleblower statute and (2) the complaint alleges a violation of the statute."

[Editor's note: I would guess that Judge Smith's real view is that the Secretary misuses "jurisdiction" when referring to a non-covered employer. This seems to me to be as much a question of fact as the employee question. Both employer and employee issues are threshold issues -- not jurisdictional, but an element of the case that if not established precludes recovery. This seems to comport better with the federal case cited by Judge Smith (I think he endeavors to fit the Secretary's cases into this scheme, but not very convincingly. That federal case states: "Subject matter jurisdiction is 'the power to adjudge concerning a general question involved and is not dependent upon the state of facts which may appear in a particular case. . . . It is the power to hear and determine causes of the class in which the particular controversy belongs. . . .'" Edwards v. Director, OWCP, 932 F.2d 1325, 1328-29 (9th Cir. 1991) ( quoting Ramos v. Universal Dredging Corp., 653 F.2d 1353, 1357 (... 1981)).]

[Nuclear and Environmental Digest XIV B 1]
EMPLOYER LIABILITY UNDER ERA; ADVERSE ACTION NOT ATTRIBUTABLE TO NAMED DEFENDANT BECAUSE SUBCONTRACTOR-DEFENDANT WAS CONTRACTUALLY OBLIGED TO REMOVE THE PLAINTIFF FROM A PROJECT ONCE ORDERED TO DO SO BY PRIMARY CONTRACTOR, AND THERE WAS NO EVIDENCE THAT THE DEFENDANT CONSPIRED WITH THE CONTRACTOR IN MAKING THE DECISION.

In Tamosaitis v. URS Corp. , No. CV-11-5157-LRS, 2012 WL 4829818 (E.D.Wash. Oct. 10, 2012), the plaintiff brought a retaliation claim against his employer (URS), a subcontractor, after he was removed from a project at a waste treatment plant. The defendant conceded that the plaintiff had engaged in protected activity under ERA and that his removal from the project was retaliation for his protected conduct. However, the defendant filed a motion for summary judgment arguing that it was not liable for the plaintiff's removal from the project because the primary contractor on the job, Bechtel National, Inc. (BNI), was solely responsible for the adverse action.

As evidence, the defendant pointed primarily to its contract with BNI, which provided BNI with clear authority to demand that the defendant remove personnel from the project. Additionally, the evidence � particularly, a directive sent by BNI's Project Director to the defendant ordering the plaintiff's removal � clearly demonstrated that BNI's Project Director made the decision to remove the plaintiff from the project, and was authorized to unilaterally act on behalf of BNI with regard to the project. The plaintiff, on the other hand, offered no evidence that the defendant was aware of BNI's desire to remove the plaintiff prior to receiving the directive, and in fact, the defendant unsuccessfully attempted to persuade BNI to reinstate the plaintiff to the project shortly thereafter. Because the defendant was contractually obliged to remove the plaintiff once it was ordered by BNI, and because there was no evidence that the companies conspired to have the plaintiff removed, the court granted the defendant's motion for summary judgment.

[Nuclear and Environmental Whistleblower Digest XIV B 1]
DISMISSAL OF SUBSIDIARIES OF EMPLOYER AND UNIDENTIFIED INDIVIDUALS; MERE FACT THAT THOSE NAMED DEFENDANTS SHARED AN OFFICE ADDRESS INSUFFICIENT TO SUPPORT "ALTER-EGO" THEORY

In Gauthier v. Shaw Group, Inc. , No. 3:12-cv-00274-GCM, 2012 WL 6043012 (W.D.N.C. Dec. 4, 2012), the Plaintiff, a Quality Engineering Supervisor for The Shaw Group, claimed that he was discharged in violation of the whistleblower provision of the ERA, naming as Defendants, The Shaw Group, several subsidiaries, and 20 unidentified individuals. The district court dismissed the subsidiaries and the individuals for failure to state a claim against them under the ERA because they had not been shown to be employers as defined by the ERA. The Plaintiff argued that all of the Defendants were alter egos of the others, but only pointed to their common office address to support that contention. The court found such a conclusory allegation to be insufficient to justify piercing the corporate veil.

[Nuclear and Environmental Whistleblower Digest XIV B 1]
EMPLOYER-EMPLOYEE RELATIONSHIP; COMPLAINANT'S BARE ASSERTION OF A CONSPIRACY INADEQUATE TO ESTABLISH TRIABLE ISSUE OF FACT

In Seetharam v. General Electric Co. , ARB No. 03-029, ALJ No. 2002-CAA-21 (ARB May 28, 2004), the Complainant alleged that his former employers and several other companies conspired to discriminate against him because of his protected activities under various environmental statutes. The Respondents filed motions for summary decision based on the contention that they were not the Complainant's employers and had no employment relationship with him, and the presiding ALJ dismissed the complaint on that basis. On appeal to the ARB, the Complainant argued that the Respondents affected the terms and conditions of his employment -- resulting in his discharge -- " because they had mutual business dealings as vendors, contractors, lenders, or partners, which rendered them 'a joint enterprise' that conspired to violate the environmental protection laws and blacklist him." Slip op. at 3, citing Complainant's brief. The ARB noted that several Respondents submitted affidavits in support of their motions for summary decision showing that they either never employed the Complainant or that they had no influence or control over his subsequent employment. All Respondents asserted that they had nothing to do with the Complainant's reassignment or discharge. The ARB found that such affidavits shifted the burden to the Complainant to produce enough evidence to create a triable issue of fact regarding the employer-employee relationship, which he failed to do -- Complainant's bare allegations of conspiracy being inadequate to create a genuine issue of material fact. Thus, the ARB affirmed the ALJ's dismissal of the complaint.

[Editor's note: The company with which the Complainant was employed when discharged is the subject of a separate complaint which was not part of the instant proceeding].

[Nuclear & Environmental Whistleblower Digest XIV B 1]
EMPLOYER; JOINT EMPLOYEE STANDARD

In Gass v. U.S. Dept. of Energy , 2002 CAA 2 (ALJ Nov. 20, 2002), Complainant alleged that she had been retaliated against by Lockheed Martin Energy Systems (LMES) for protected activity, and had pursued a remedy through the Department of Energy's Office of the Inspector General. She filed a whistleblower complaint with DOL. During the adjudication of this complaint, she filed a FOIA request with DOE seeking documents related to DOE IG's inquiry on her complaint. DOE informed Complainant that the requested information had been destroyed, and Complainant filed the instant whistleblower complaint, alleging that the destruction of the documents was a violation of the environmental whistleblower laws, and that DOE should be considered a "joint employer" with LMES and therefore properly named as a Respondent. The ALJ analyzed in his recommended decision whether DOE was an "employer" under the Darden common law employment standard, and quickly determined that DOE was not Complainant's employer under that standard. The ALJ then turned to the Stephenson "acting in the capacity of an employer" (joint employer) test. The ALJ found that DOE did not change, alter or otherwise interfere with Complainant's employment with LMES within the DOE/LMES contractual framework. The ALJ also found that finding a jurisdictional basis for finding DOE to be Complainant's employer based on theories of adverse inferences based on destruction of evidence and that loss of the evidence so interferred with her case against LMES that it amounted to a substantial interference by DOE of work privilege, relied on unwarranted and unreasonable inferences.

[Nuclear and Environmental Digest XIV B 1]
DERIVATIVE LIABILITY

In Ruud v. Westinghouse Hanford Co. , 1988-ERA-33 (ALJ Dec. 8, 1998), the ALJ had found in a prior recommended decision, that the corporate connection between Westinghouse Hanford Company and Westinghouse Savannah River Company was close enough to attribute the actions of one corporation to the other for purposes of whistleblower protection. The ARB had found that the ALJ's conclusions in this respect were fully supported by the record before the ALJ, but remanded for additional fact-finding and consideration of appropriate relief.

On remand, Respondent presented testimony tending to show that the corporations were separate and distinct, but the ALJ found the declarations lacking in credibility, having been made by managers or former managers for Respondent who engaged in retaliatory actions, and many of whom harbored personal antagonism toward Complainant. The ALJ also found that the Board's holding on the question of WSRC responsibility now constituted the law of the case.

The ALJ also addressed Respondent's citation of United States v. Bestfoods , 118 S.Ct. 1876 (1998), a CERCLA case not involving the employee protection provision, in which the Supreme Court held that only when the corporate veil may be pierced as a matter of corporate law can a parent corporation be charged with derivative liability. The ALJ indicated that if Bestfoods applies, Complainant probably could not show that derivative liability applies, but concluded that because of a concession by Complainant in his brief on remand, and without further instructions from the Board, he would not attempt to make any findings pursuant to Bestfoods.

[N/E Digest XIV B 1]
EMPLOYERS; CORPORATE SUBSIDIARIES

In Ruud v. Westinghouse Hanford Co. , 88-ERA-33 (ARB Nov. 10, 1997), the ARB adopted the ALJ's finding that the corporate connection between two subsidiaries of Westinghouse Electric Corporation (the Hanford reservation and the Savannah River facility) had sufficiently close connections to attribute the actions of one to the other for purposes of whistleblower protection. The factors considered included that, although the companies maintained separate employment benefit plans, employees transferred from one company to another without termination of employment and application for reemployment; both subsidiaries' stock option plans provided for purchase of Westinghouse Electric Corporation stock through the subsidiaries; the subsidiaries shared employees on task team assignments; management employees moved from subsidiary to subsidiary during their careers.

PARTIES; UNINCORPORATED DIVISION
[N/E Digest XIV B 1]

Oak Ridge National Laboratory is an unincorporated division of Energy Systems, Inc., and is not a legal entity. Therefore, in Varnadore v. Oak Ridge National Laboratory , 92- CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996), it was dismissed as a party. The same is true of other divisions of Energy Systems, Inc.

See also Casenotes at XIV B 1.

[N/E DIGEST XIV B 3]
"MERE" PARENT CORPORATION; TEST FOR DETERMINING WHETHER PARENT CORPORATION SHOULD BE DISMISSED AS A RESPONDENT

In Ishmael v. Calibur Systems, Inc. , 96-SWD-2 (ALJ June 23, 1997), the ALJ considered what test should be applied to determine when a parent company is "merely a parent" and should be dismissed as a respondent. See Varnadore v. Oak Ridge Nat'l Lab. , 92-CAA-2 and 5, 93-CAA-1, 94-CAA- 2 and 3 (ARB June 14, 1996)(finding that a mere parent company that did not employ the complainant should be dismissed as a respondent, but not articulating a test for when a company is a mere parent).

The ALJ applied the test found in Baker v. Stuart Broadcasting Co. , 560 F.2d 389, 391 (8th Cir. 1997), a Title VII case in which the courts held that there must be sufficient indicia of an interrelationship to justify a belief by the aggrieved employee that the affiliated corporation is jointly responsible for the acts of the immediate employer. The court applied a four-part test: degree of (1) interrelated operations, (2) common management, (3) centralized control of labor relations, and (4) common ownership).

Applying this test, the ALJ found that the two corporations in the present case were alter egos, and declined to dismiss the parent corporation.

XIV B 4 a Defense facility

A necessary element of a valid ERA claim under the employee protection provision is that the party charged with discrimination is an employer subject to the Act. Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159, 1162 (9th Cir. 1984); DeFord v. Secretary of Labor, 700 F.2d 281, 286 (6th Cir. 1983). Employers under the ERA are licensees, or applicants for a license, of the Nuclear Regulatory Commission, and their contractors and subcontractors. 42 U.S.C. § 5851(a); Billings v. OWCP, 91-ERA-35 (Sec'y Sept. 24, 1991), slip op. at 2; Wensil v. B.F. Shaw Co., 86-ERA-15, 87-ERA-12, 45, 46, 88-ERA-34 (Sec'y Mar. 29, 1990), slip op. at 11, aff'd sub nom. Adams v. Dole, 927 F.2d 771, 776 (4th Cir. 1991), cert. denied, 116 L. Ed. 2d 90 (1991).

Thus, in Miriello v. Carolina Power and Light Co., 87-ERA-17 (Sec'y Jan. 23, 1992) (decision and order to show cause; final decision and order Mar. 20, 1992), where a named respondent -- the Charleston Naval Shipyard -- was a Department of Defense utilization facility, exempt from the Act's licensing requirement, see 42 U.S.C. §§ 2140, 2121 (1988), the complaint against that respondent lacked subject matter jurisdiction, and dismissal was mandatory. Fed. R. Civ. P. 12(h)(3); Sullivan v. Afftrex, Ltd., 91-ERA-15 (Sec'y Aug. 30, 1991), slip op. at 2 (order to show cause; final order of dismissal Oct. 30, 1991).

XIV B 4 b Prospective application of 1992 amendments

Lekvold v. Westinghouse Hanford Co., 1994 U.S. App. Lexis 13173 (9th Cir. May 19, 1994)

Prior to 1992, there were no federal remedies for whistleblowing employees of DOE-owned, contractor-operated nuclear facilities. In 1992, the ERA was amended to extend whistleblower protection to DOE contractor employees. However, this protection applied only prospectively to claims filed on or after the enactment date of the amendments. Therefore, claims filed by DOE contractor employees before that date are not covered by the ERA.

SOVEREIGN IMMUNITY; DEPARTMENT OF ENERGY; ENERGY REORGANIZATION ACT
[N/E Digest XIV B 4 b and XX E]

The Department of Energy is not a proper party defendant in an ERA whistleblower case because the United States has not waived sovereign immunity under the ERA. Varnadore v. Oak Ridge National Laboratory , 92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996), citing Teles v. U.S. Dept. of Energy , 94-ERA-2 (Sec'y Aug. 7, 1995).

XIV B 4 b PARTIES; LIABILITY OF UNINCORPORATED DIVISIONS OR DEPARTMENTS, PARENT COMPANIES; INDIVIDUAL EMPLOYEES

In Varnadore v. Oak Ridge National Laboratory, 95-ERA-1 (ALJ Sept. 20, 1995), the ALJ recommended dismissal of the following parties:

an unincorporated division of the Complainant's employer;
unincorporated departments of the Complainant's employer;
parent companies of the Complainant's employer;
an individual employed by the Complainant's employer; and
a consultant (the former Director of the Office of Administrative Appeals) for the Complainant's employer.

The ALJ indicated that any discriminatory acts committed by these organizations or individuals would be attributed to the Complainant's employer, which is the entity liable for any violations. The complaint also named the Department of Energy. The ALJ similarly recommended dismissal of a satellite office of DOE and of the Secretary of Energy.

XIV B 4 b DOE facilities

In Adams v. United States Dep't of Energy, 87-ERA- 12 (ALJ Mar. 19, 1987), aff'd sub. nom, Wensil v. B.F. Shaw Co., 86-ERA-15, 87-ERA-12, 45, 46, 88-ERA-34 (Sec'y Mar. 29, 1990), aff'd sub nom. Adams v. Dole, 927 F.2d 771 (4th Cir. 1991), cert. denied, 116 L. Ed. 2d 90 (1991), the administrative law judge found that the Department of Labor does not have jurisdiction to decide a whistleblower complaint brought under ERA section 210, 42 U.S.C. § 5821, where the employers where contractors or subcontractors of the Department of Energy and were not required to apply for or receive a license from the Nuclear Regulatory Commission. The Secretary adopted much of Judge Guill's analysis in Wensil v. B.F. Shaw Co., 86-ERA- 15, 87-ERA-12, 45, 46, 88-ERA-34 (Sec'y Mar. 29, 1990), slip op. at 11 n. 5, aff'd sub nom. Adams v. Dole, 927 F.2d 771 (4th Cir. 1991), cert. denied, 116 L. Ed. 2d 90 (1991), but stated that she did not "feel constrained to defer to the views of DOE or the NRC in this area because section 210 designates the Secretary of Labor as the official responsible for the administration and enforcement of this section of the ERA."

XIV B 4 b DOE facilities

The whistleblower provision of the Energy Reorganization Act of 1974, § 210, as amended, 42 U.S.C. § 5851, does not protect employees of contractors operating nuclear facilities owned by the Department of Energy, but only employees of licensees of the Nuclear Regulatory Commission and their contractors. Adams v. Dole, 927 F.2d 771 (4th Cir. 1991), cert. denied, 116 L. Ed. 2d 90 (1991).

[Editor's note: The statutory language interpreted in Adams was substantially modified by the Comprehensive Energy Policy Act [of 1992], § 2901.]

XIV B 4 b DOE facilities

In Sullivan v. Afftrex, Ltd., 91-ERA-15 (ALJ May 7, 1991), aff'd (Sec'y Oct.30, 1991), the ALJ recommended that the complaint be dismissed for lack of subject matter jurisdiction based upon the decisions of Adams v. Dole, 927 F.2d 771 (4th Cir. 1991), cert. denied, 60 U.S.L.W. 3260 (U.S. Oct. 7, 1991) (No. 90-8210), and Wensil v. B.F. Shaw Company, 86-ERA-15 (Sec'y Mar. 29, 1990). In Sullivan, the respondent was a subcontractor at a government owned facility operated under the administration of the Department of Energy. The cited decisions indicated that section 510 of the ERA does not cover DOE contractors.

XIV B 4 b DOE facilities

In Wensil v. B.F. Shaw Co., 86-ERA-15, 87-ERA-12, 45, 46, 88-ERA-34 (Sec'y Mar. 29, 1990), aff'd sub nom., Adams v. Dole, 927 F.2d 771 (4th Cir. 1991), cert. denied, 116 L. Ed. 2d 90 (1991), the Secretary found that the employee protection provision of the Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C. § 5851 (1982), does not cover employees of Department of Energy (DOE) contractors, which operate facilities that are owned by DOE and are not licensed by the Nuclear Regulatory Commission (NRC). Section 5851 covers only employees of NRC licensees, license applicants, and their contractors and subcontractors.

The following was extracted (some of it paraphrased) from the Secretary's decision:

Statutory background

The Atomic Energy Act of 1954 established the Atomic Energy Commission (AEC) to regulate the development, use, and control of atomic energy. Pub. L. No. 83-703, 68 Stat. 919 (codified as amended at 42 U.S.C. §§ 2011-2296 (1982)). Facilities involved in the production of materials for nuclear weapons were to be owned by the AEC as agent of, and on behalf of, the United States. 42 U.S.C. § 2061. Nuclear facilities engaged in industrial or commercial activities were licensed by the AEC. Pub. L. No. 83-703, § 103, 68 Stat. 919, 936.

Congress reorganized the regulation of development, use and control of atomic energy when it enacted the Energy Reorganization Act of 1974 (ERA), Pub. L. No. 93-438, 88 Stat. 1233 (codified as amended at 42 U.S.C. §§ 5801-5891 (1982)). One purpose of the ERA was to separate the licensing and related regulatory functions of the AEC from the other functions of the AEC. 42 U.S.C. § 5801(c) (1982). Another purpose of the ERA was "to advance the goals of restoring, protecting, and advancing environmental quality, and to assure public health and safety." 42 U.S.C. § 5801(a).

The ERA established two new, independent agencies, the Energy Research and Development Administration (ERDA) and the Nuclear Regulatory Commission (NRC). ERDA was given responsibility for research and development programs on energy, including nuclear energy. 42 U.S.C. § 5813. In addition, the AEC's responsibilities for facilities producing materials for nuclear weapons were transferred to ERDA. 42 U.S.C. § 5843. In 1977, the functions of ERDA were transferred to the Department of Energy, including responsibility for nuclear weapons materials production facilities. Pub. L. No. 95-91, 91 Stat. 565, 577 (codified as amended at 42 U.S.C. § 7151).

Wensil , slip op. at 4-5.

Discussion

Section 210 of the ERA provides, in pertinent part, that "[n]o 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, terms, conditions, or privileges of employee because the employee [engaged in protected activity]."

The question of DOE contractor coverage results from the ambiguity of the "including" phrase: is it illustrative or defining? Because of the ambiguity, the Secretary looked to the legislative history. Based on factors such as indicators that the bill was related to NRC appropriations and portion of the Act, DOE had in effect its own whistleblower regulations, the meager legislative history refers to NRC and NRC-type employees and there is no direct reference to DOE or DOE/GOCO (Government owned/Contractor operated) employees, and the types of protected activities fit NRC proceedings better than DOE administrative process, the Secretary concluded that Congress sought to legislate with reference only to the NRC. Slip op. at 7-9.

[Editor's note one: The Fourth Circuit affirmed the Secretary in Adams v. Dole, 927 F.2d 771, 774 (4th Cir. 1991), cert. denied, 116 L. Ed. 2d 90 (1991). Much of the analysis is similar to the Secretary's, although less emphasis is placed on legislative history and more on statutory interpretation and placement of the amendment in the structural framework of the ERA. Most of the decision is technical statutory construction, so a detailed, independent casenote has not been written for that decision for the Digest.]

[Editor's note two: Congress has amended section 210 of the ERA.

See Comprehensive National Energy Policy Act, § 2901. The amendment strikes the "including" phrase and inserts a new paragraph defining covered employers. The new paragraph includes the following:

(2) For purposes of this section, the term "employer" includes-

* * *
(D) a contractor or subcontractor of the Department of Energy that is indemnified by the Department under section 170 d. of the Atomic Energy Act of 1954 (42 U.S.C. 2210(d)), but such term shall not include any contractor or subcontractor covered by Executive Order No. 12344.

Representative Wyden indicated in the Conference Report that this amendment was made in response to Bricker v. Rockwell Hanford Operations, No. CY-90-3090-AAM, 1991 U.S. Dist. LEXIS 18965 (E.D. Wash. Sept. 17, 1991) (unpublished), in which it was held that the plaintiff was not protected by the ERA because he was an employee of a private DOE contractor. See 138 Cong. Rec. H11376 (daily ed. Oct. 5, 1992) (statement of Rep. Wyden).

42 U.S.C. § 2210(d) involves DOE indemnification of contractors and subcontractors who conduct activities that pose a risk to public and are not subject to other financial protections under the Atomic Energy Act of 1954.

E.O. 12344 deals with the Naval Nuclear Propulsion Program.]

[Editor's note three: Effective April 2, 1992, DOE implemented new whistleblower regulations providing complainants with the opportunity for a hearing before DOE's Office of Hearings and Appeals. See 10 C.F.R. Part 708 (57 Fed. Reg. 7533 (Mar. 3, 1992)). Previously, the DOE whistleblower complaint process did not provide an opportunity for a hearing before an independent adjudicator, and was perceived as a less effective anti-discrimination remedy than the ERA, section 210 remedy. See, e.g., Adams v. Dole, 927 F.2d 771, 774 (4th Cir. 1991), cert. denied, 116 L. Ed. 2d 90 (1991). These regulations require a party to make an election between the DOE procedure and other remedies.

The jurisdictional question is therefore complicated by the new DOE regulations. Did Congress intend to supplant DOE jurisdiction with the new Comprehensive Energy Policy Act -- or is there now to be concurrent DOE/DOL jurisdiction? Will there be forum shopping? Will there be deference to the proceedings of another agency? Will proceedings be stayed pending the outcome of a DOE proceeding?]

XIV B 4 b DOE contractor which must eventually receive an NRC license

In Brown v. Holmes & Narver, Inc., 90-ERA-26 (ALJ June 28, 1990 (order denying motion for reconsideration of denial of motion for summary judgment), the ALJ ruled that the Respondent was not entitled to dismissal for lack of subject matter jurisdiction. The ALJ concluded that the Secretary's holding in Wensil v. B.F. Shaw, 86-ERA-15 (Sec'y Mar. 29, 1990), that contractors for the Department of Energy that are owned by DOE and are not licensed by the NRC, are not covered under the ERA whistleblower provision, did not apply to contractors at sites which must eventually receive an NRC license.

[Editor's note: The Complainant later took a voluntary dismissal without prejudice, Brown v. Holmes & Narver, Inc., 90-ERA-26 (ALJ June 28, 1990, which was affirmed by the Secretary. Brown v. Holmes & Narver, Inc., 90-ERA-26 (ALJ June 28, 1990). At the time of the writing of this casenote, the Complainant has a pending motion to "reinstate" his ERA complaint, it having been ruled that he must exhaust his administrative remedies before pursuing a state claim.]

XIV.B.4.b. DOE contracts

The Department of Labor does not have jurisdiction over a complaint under the ERA, where the Respondent is a contractor to the Department of Energy, and the complaint was filed prior to October 24, 1992, the effective date of an amendment to the ERA that expanded ERA whistleblower protection to include employees of contractors or subconstractors of DOE. Crosier v. Westinghouse Hanford Co., 92-CAA-3 (Sec'y Jan. 12, 1994).

XIV B 4 b DOE found not to be an "employer" under the ERA

In Teles v. United States Dept. of Energy, 94-ERA-22 (ALJ Feb. 28, 1995), the ALJ carefully reviewed relevant statutory language and legislative history to find that the ERA's whistleblower provision does not include the Department of Energy as an "employer."

XIV B 4 c State agency

In McMahan v. California Water Quality Control Board, San Diego Region, 90-WPC-1 (Sec'y July 16, 1993), the Respondent contended that, as a state agency having responsibility for enforcing laws relating to the abatement of pollution, it was not subject to the whistleblower provision of the Federal Water Pollution Control Act, § 1367, 33 U.S.C. § 1367. The Secretary agreed with the ALJ that this Respondent fit into the Act's definition of a "person", and was subject to the Act.

[Nuclear & Environmental Digest XIV B 4 c]
DEFINITION OF "EMPLOYER" UNDER THE ERA

In Jayco v. Ohio Environmental Protection Agency , 1999-CAA-5 (ALJ Oct. 2, 2000), the ALJ reviewed applicable case law and statutory and regulatory history to conclude that the term "employer" under the ERA whistleblower provision is not clearly restricted to licensees or contractors or subcontractors of licensees of the NRC. Rather, the ALJ concluded that "Congress meant to cover the actions of all employers and employees who would be involved in any phase of any 'proceeding' involving the investigation and/or potential cleanup activity of any potential nuclear waste covered by the ERA and the Atomic Energy Act of 1954." Slip op. at 63.

XIV B 4 c City as "person" subject to the Act

In Patrick Paul Wilson, Case No. WPC-2, (Sec'y May 6, 1977), the Secretary agreed with the ALJ that the Respondent city fit into the Act's definition of a "person" and was subject to the Act.

XIV B 4 d Requirement of employer- employee relationship

The Secretary has determined, under the particular facts of several cases, that the ERA may afford protection, absent a direct employer-employee relationship. See Kamin v. Hunter Corp., 89-ERA-11 (Sec'y Sept. 12, 1989), slip op. at 2-3 (Order to Show Cause) (applicants for employment); Hill v. Tennessee Valley Authority, 87-ERA-23 (Sec'y May 24, 1989), slip op. at 2, 5, and 10 (employees of a contractor); Cowan v. Bechtel Construction, Inc., 87-ERA-29 (Sec'y Aug. 9. 1989), slip op. at 2-4 (former employees).

In Doyle v. Bartlett Nuclear Services, 89-ERA-19 (Sec'y May 22, 1990), the Secretary considered whether an employment agency can be an appropriate respondent under the whistleblower provision of the ERA. The pertinent statutory language in section 5851(a) states that "[n]o employer, including a Commission licensee, an applicant for a Commission licensee, or a contractor or subcontractor of a Commission licensee or applicant . . ." may discriminate against any employee. 42 U.S.C. § 5851(a). This language indicates that if an employment agency is shown to be a contractor or subcontractor of a former or prospective employer of the complainant, and is alleged to have engaged in prohibited discriminatory action, such an entity might, at least under some circumstances, be an appropriate respondent under the ERA.

Because the complainant failed to allege against the employment agency a prima facie case of retaliatory discharge, however, the Secretary did not reach the question of under what circumstances an employment agency may be an appropriate respondent.

XIV B 4 d Employment agency

XIV B 4 e Federal Government is not a "person" as defined by the Act

In Conley v. McClellan Air Force Base, 84-WPC-1 (Sec'y Sept. 7, 1993), the Secretary determined that the Air Force was not a "person" within the meaning of the Act. The "omission of the United States from CWA definition of the term person has to be seen as a pointed one when so many other government entities are specified." Nonetheless, the Secretary held that the CWA can apply to the Federal government under the Federal Facilities provision of the FWPCA which states:

Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2)engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants, an each officer, agent , or employee thereof in the performance of his official duties, shall be subject to, and comply with, all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner, and to the same extent as any nongovernmental entity including the payment of reasonable service charges.

33 U.S.C. 1323(a). The phrase "any requirement" indicates that the Federal Government is subject to all requirements, even those which are not central to eliminate pollution. The Secretary determined that the employee protection prohibition is a requirement under the Act because it is a means of enforcing the law.

[Nuclear and Environmental Whistleblower Digest XIV B 4 e]
NAMING OF RESPONDENTS WITHIN FEDERAL AGENCY; OFFICE OF THE INSPECTOR GENERAL AND INDIVIDUAL SUPERVISORS ARE NOT PROPER SEPARATE PARTIES RESPONDENT

[Nuclear and Environmental Whistleblower Digest XIV B 4 E]
COVERED EMPLOYER OF EPA EMPLOYEE; OFFICE OF INSPECTOR GENERAL; DEPARTMENT OF THE ARMY

In Fox v. U.S. Environmental Protection Agency , 2004-CAA-4 and 10, 2005-CAA-6 (ALJ Mar. 1, 2005), recon. denied (ALJ Mar. 15, 2005), the EPA Office of Inspector General's filed a motion for summary decision dismissing it as a Respondent because it exercised no supervisory control over the Complainant and exercises considerable independence from EPA. The ALJ agreed, citing in support Greene v. U.S. Environmental Protection Agency , 2002-SWD-1, slip op. at 6 (ALJ Feb. 10, 2003), aff'd without reaching this issue (ARB June 14, 2005).

In contrast, the ALJ denied a similar motion from the Department of the Army. The Complainant was an EPA employee, but had been loaned to Georgia Tech University under an Intergovernmental Personnel Act assignment. The University had been awarded money from the Department of the Army to perform tasks under a Watershed Advisory Board; the Complainant was made the project manager. The ALJ found that there was sufficient evidence in conflict regarding whether the Army exercised control over the Complainant's employment so as to avoid summary decision on the issue of whether the Army was a "statutory employer."

[Nuclear and Environmental Whistleblower Digest XIV B 4 e]
COVERED EMPLOYERS; ENERGY POLICY ACT OF 2005; THE NRC; NRC CONTRACTORS AND SUBCONTRACTORS; DEPARTMENT OF ENERGY

[Nuclear & Environmental Whistleblower Digest XIV B 4 e]

AGENCY ITSELF NOT OFFICES WITHIN AN AGENCY OR AGENCY SUPERVISORY PERSONNEL IS THE EMPLOYER OF AN AGENCY EMPLOYEE

In Greene v. Environmental Protection Agency , 2002 SWD 1 (ALJ Feb. 10, 2003), the Complainant was an ALJ with the EPA. Her complaint named, in addition to EPA itself, the EPA OALJ, EPA OIG,and the Chief ALJ of EPA. The ALJ presiding over the instant whistleblower complaint for DOL held that EPA was the Complainant's employer, but that EPA OALJ, being merely a component of EPA, was not Complainant's employer with the meaning of the environmental whistleblower laws. The ALJ observed that although EPA OIG has some operational independence from EPA, it nonetheless was not Complainant's employer and did not exercise supervisory control over her. Finally, the ALJ found that the EPA Chief ALJ was Complainant's supervisor not her employer.

[Nuclear & Environmental Digest XIV B 4 e]
FEDERAL AGENCIES AS "PERSONS" SUBJECT TO THE CAA AND THE SWDA

Federal agencies, such as the Department of Defense, are "persons" subject to the requirements of the Clean Air Act, see 42 U.S.C. § 7602(e), and the Solid Waste Disposal Act (aka Resource Conservation and Recovery Act), 42 U.S.C. § 6961. Jones v. EG & G Defense Materials, Inc. ,1995-CAA-3 (ARB Sept. 29, 1998).

[Editor's Note: The complaint in Jones also involved the TSCA, but the ARB did not discuss whether a federal agency would be covered as a "person" under that Act.]

PARTIES; SUBDIVISION OF FEDERAL DEPARTMENT CANNOT BE HELD INDEPENDENTLY LIABLE
[N/E Digest XIV B 4 e]

In Varnadore v. Oak Ridge National Laboratory , 92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996), the Complainant named both the Department of Energy and DOE's Oak Ridge Operations Office. The Oak Ridge Operations Office, being merely a subdivision of DOE, is subsumed within DOE and cannot be held independently liable. Slip op. at 55 n.37.

XIV B 4 e Sovereign immunity under the CAA, CWA, SWDA and TSCA

With the exception of whistleblower complaints involving lead- based paint, sovereign immunity has not been waived for purposes of the TSCA employee protection provision. Thus, in Stephenson v. National Aeronautics & Space Administration, 94-TSC-5 (Sec'y July 1, 1995), NASA was properly dismissed as a Respondent where the complaint did not concern a lead-based paint hazard. A CAA complaint against NASA, however, was cognizable. See Jenkins v. U.S. Environmental Protection Agency, 92-CAA-6 (Sec'y May 18, 1994).

The Secretary noted that the United States Supreme Court had held in Department of Energy v. Ohio , 112 S.Ct. 1627, 1633-1635 (1992), that neither the Clean Water Act nor the Solid Waste Disposal Act contains a clear enough waiver of sovereign immunity to subject the United States to civil penalties for past violations.

XIV B 4 e Employer, definition of

A necessary element of a valid ERA claim under section 5851 is that the party charged with discrimination is an employer subject to the Act. Employers under the ERA are licensees, or applicants for a license, of the Nuclear Regulatory Commission (NRC), and their contractors and subcontractors. 42 U.S.C. § 5851(a); Wensil v. B.B. Shaw Co., 86-ERA-15, 87-ERA-12, 45, 46, 88- ERA-34 (Sec'y Mar. 29, 1990), aff'd sub nom. Adams v. Dole, 927 F.2d 771, 776 (4th Cir. 1991), petition for cert. filed sub nom. Adams v. Martin, No. 90-8210 (June 3, 1991). Thus where Complainant filed his complaint under the ERA against a claim's examiner employed in the Office of Workers' Compensation Programs, United States Department of Labor (because of alleged denial of a workers' compensation claim that was based on injuries alleged suffered while working at the Tennessee Valley Authority) the complaint was properly dismissed for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). Billings v. Office of Workers' Comp. Programs, 91-ERA-35 (Sec'y Sept. 24, 1991).

XIV B 4 e Federal employer; coverage

In Jenkins v. U.S. Environmental Protection Agency, 92-CAA-6 (Sec'y May 18, 1994), the Secretary found that CERCLA, 42 U.S.C. §§ 9610, 9620(a)(1), expressly subjects an agency of the United States to the employee protection provision. Specifically, the Secretary found EPA to be a "person" within the meaning of 42 U.S.C. § 9610.

The Secretary found that the SDWA, 42 U.S.C. §§ 300(f)(11) and (12), 300j-9(i), similarly subjected the EPA to the SDWA employee protection provision. Although "employer" is not defined, "person" includes a Federal agency, which is "any department, agency, or instrumentality of the United States." In addition, the Federal facilities provision of the SDWA indicates that Congress intended to waive governmental immunity. 42 U.S.C. § 300j- 6(a).

Similar provisions govern CAA employee protection case. See 42 U.S.C. §§ 7418(a), 7602(e), 7622(a) and (b).

The CWA and SWDA definitions of the term "person" do not expressly include the United States Government. Nonetheless, the Secretary held that the Federal facilities provision of those statutes made the employee protection provisions applicable to federal agencies.

In sum, the Secretary held:

[I]mmunity is waived under the CERCLA, SDWA, and CAA by expressly including the United States within the definition of the term "person." Moreover, the CERCLA subjects each agency of the United States to its terms by means of its Federal facilities provision. The Federal facilities provisions of the SDWA, CAA, CWA, and SWDA, while describing Federal agencies reasonably expected to be affected, can be construed to waive immunity generally, thereby providing Federal employees as well as nonFederal employees with statutory whistleblower protection. Even if this were not the case, the instant record establishes that EPA exercises jurisdiction over affected properties and facilities and engages in activities affecting regulated substances and processes, thus constituting an agency described in the provisions. I previously have held that the CWA whistleblower provision is a "Federal requirement" within the meaning of the CWA Federal facilities provision, and I incorporate that analysis as applying equally to the above statutes. Conley v. McClellan Air Force Base (Conley) , Case No., 84-WPC-1, Sec. Dec., Sept. 7, 1993, slip op. at 2-9.

[Editor's note: Complainant also alleged a TSCA violation, but the Secretary did not reach the issue of waiver under the TSCA because the other statutes afforded Complainant a full measure of relief.]

XIV B 4 e Coverage of Federal government

In Conley v. McClellan Air Force Base, 84-WPC-1 (Sec'y Sept. 7, 1993), the Air Force contended that the employee protection provision of the Federal Water Pollution Control Act or Clean Water Act (CWA), 33 U.S.C. § 1367 (1988), does not apply to the Federal Government, and that Complainant's exclusive remedy arises under the Civil Service Reform Act (CSRA), 5 U.S.C. § 2302(b)(8) (Supp. IV 1992).

Coverage of Federal Government

The United States Government is not a "person" for purposes of section 1367 of the CWA. See 33 U.S.C. § 1362(5); United States Dept. of Energy v. Ohio, 503 U.S. ___, 112 S. Ct. 1627, 1633-1635, 118 L. E.d 2d 255, 267-268 (1992). In some instances, however, the CWA can apply to the Federal Government just as it applies to any nongovernmental entity, such as the CWA "federal facilities" provision, 33 U.S.C. § 1323(a). The Secretary, employing statutory construction and a look to the legislative history, reasoned that the employee protection provision of the CWA "would appear to be a Federal requirement respecting control and abatement of water pollution" and therefore fits within the "federal facilities" provision.

Relationship to the Civil Service Reform Act

The Secretary viewed the Air Force's contention in regard to the CSRA as one of implied repeal of the CWA, and found that there was no evidence that the CSRA repealed a broad range of earlier enacted laws that explicitly provide substantive protections to whistleblowers, and instead found case law indicating that the CSRA was to provide additional protection for federal whistleblowers. See Borrell v. United States Intern. Communications Agency, 682 F.2d 981, 990 (D.C. Cir. 1982), and that CSRA does not foreclose other avenues of relief for federal employees where Congress otherwise has provided. See Veit v. Heckler, 746 F.2d 508, 511 (9th Cir. 1984). The Secretary distinguished cases in which Federal employees were foreclosed other statutory avenues on the ground that the CSRA provides a comprehensive scheme for administrative and judicial review of Federal personnel actions and practices. The distinction is that, for the most part, those cases dealt with situations in which the employee was trying to bypass the CSRA and go directly to the courts, and thus involves the employee's personal interest vis-a-vis the Federal governments's interest in the sound and efficient administration of its operations. The Secretary also noted that when the Whistleblower Protection Act of 1989 was enacted (which amended section 2303(b)(8) of the CSRA), Congress indicated that it was not to be the exclusive remedy for whistleblowers. See 5 U.S.C. § 1222; Joint Explanatory Statement, 135 Cong. Rec. 4,514, 5,035 (1989).

[Editor's note: This is a very brief summary, and perhaps an oversimplification, of the Secretary's rulings.]

XIV B 4 e Federal government

In denying the motion, the ALJ found that

the Secretary rejected the argument that the Civil Service Reform Act of 1978 provide a preemptive and exclusive remedy for federal employee whistleblowers in Conley v. McClellan Air Force Base, 84-WPC-1 (Sec'y Sept. 7, 1993), slip op. at 9-17, and Pogue v. United States Dept. of Navy, 87-ERA-21 (Sec'y May 10, 1990), rev'd on other grounds , Pogue v. United States Dept. of Labor, 940 F.2d 1287 (9th Cir. 1987);
Complainant was an employee, and nothing in the statutes or the legislative history of the statutes adjudicated under Part 24 suggests exclusion of government employees;
EPA was a "person" subject to the employee protection provisions of all the statutes invoked except the Clean Water Act (the United States is expressly included as a person under the ERA, CAA, CERCLA, SDWA and SWDA, and by reference to the citizen's suit sections of the TSC);
CAA, CERCLA, CWA, SDWA, SDWA all have virtually identical federal facilities provisions. The federal facilities provision of the CWA was found by the Secretary in Conley to subject the federal government to all requirements of the CWA; CERCLA's federal facilities provision was interpreted much the same way in Pogue .

XIV.B.4.e. NASA

In Stephenson v. National Aeronautics & Space Administration, 94-TSC-5 (ALJ June 27, 1994), the ALJ concluded that in the absence of a ruling by the Secretary upholding DOL jurisdiction under TSCA when that jurisdiction has been challenged on the basis of sovereign immunity, a proceeding under 15 U.S.C. § 2622 cannot be maintained. The ALJ concluded that NASA, as an agency of the United States government has not waived its sovereign immunity from suit under that TSCA. He therefore recommended that complainant's complaint against NASA under 15 U.S.C. § 2622 be dismissed. The ALJ did not make a similar recommendation in regard to the CAA complaint, in which a "person" is expressly defined to include the United States thereby waiving sovereign immunity in clear terms. In contrast, no such expressed waiver is contained in 15 U.S.C. § 2622.

XIV B 4 e Environmental Protection Agency

Marcus v. Environmental Protection Agency ,
92-TSC-5 (Sec'y Feb. 7, 1994)

The employee protection provisions of the CERCLA, SDWA, CWA, and the CAA covers employees of the Federal government "to the same extent, both procedurally and substantively, as [employees of] any nongovernmental entity ..." 42 U.S.C. § 9620(a)(1). The CERCLA provisions expressly include the United States Government in its definition of "person." Similarly, federal facilities are expressly subject to the SDWA, CWA, and the CAA. Thus, the EPA cannot claim governmental immunity from the statutes.

The Secretary also rejected the EPA's argument that the CSRA impliedly repeals the environmental whistleblower statutes as applied to federal employees. See Pogue v. U.S. Department of the Navy Mare Island Shipyard, 87-ERA-21, (Sec'y May 10, 1990), rev'd on other grounds, 940 F.2d 1287 (9th Cir. 1990); Conley v. McClellan Air Force Base, 84-WPC-1, (Sec'y Sept. 7, 1993).

Finally, the Secretary found that the Complainant engaged in a protected activity and sufficiently established that the protected activity motivated not only the Complainant's discharge but also the Inspector General's report which was used as a pretext to discharge him.

The Secretary ordered the EPA to reinstate Complainant to his former or comparable position together with the compensation, terms, conditions, and privileges of his former employment.

Consequently, the Complainant's motion for a temporary restraining order and an injunction preventing termination of his employee health insurance plan was moot and the motion was denied.

XIV B 4 e Civil Service Reform Act not exclusive remedy for federal employees

In Jenkins v. U.S. Environmental Protection Agency, 92-CAA-6 (Sec'y May 18, 1994), Respondent contended that Complainant's exclusive remedy arises under the Civil Service Reform Act. The Secretary characterized this contention of one of implied repeal: that the CSRA, with its comprehensive scheme of remedies to enforce personnel prohibitions, effectively has repealed the environmental whistleblower statutes as they apply to Federal government employees. The Secretary adopted the reasoning of Marcus v. U.S. Environmental Protection Agency, 92-TSC-5 (Sec'y Feb. 7, 1994), Pogue v. U.S. Department of the Navy Mar Island Shipyard, 87-ERA-21 (Sec'y ay 10, 1990), rev'd on other grounds, 940 F.2d 1287 (9th Cir. 1990), and Conley v. McClellan Air Force Base, 84- WPC-1 (Sec'y Sept. 7, 1993) in rejecting this contention.

XIV B 4 e Federal employee's right to seek relief under CERCLA

In Pogue v. United States Dept. of the Navy, 87- ERA-21 (Sec'y May 10, 1990), rev'd on other grounds , Pogue v. United States Dept. of Labor, 940 F.2d 1287 (9th Cir. 1987), the Navy asserted that the Secretary of Labor lacked jurisdiction to entertain Complainant's employee protection complaint under CERCLA because (1) there is no express language in CERCLA, nor any express statement in its legislative history, indicating coverage of Federal employees; (2) that there has been no waiver of sovereign immunity of the Federal government; and (3) that CERCLA does not cover Federal employees because the CSRA established for Federal employees a comprehensive scheme to address all claims concerning adverse personnel actions.

The Secretary held

(1) Statutory language . The CERCLA whistleblower provision provides that no "person" shall discriminate against "any employee." 42 U.S.C. § 9610(a). The definition of "person" for purposes of this subchapter specifically includes "United States Government." 42 U.S.C. § 9601(21). There is no ambiguity in this language that would support exclusion of Federal employees as complainants. This is confirmed by the Federal facilities section, which requires Federal agencies to comply with the CERCLA requirements to the same extent as nongovernment persons. 42 U.S.C. § 9620(a). Moreover, a Federal employee may file a citizen's suit against an agency for violation of environmental standards, 42 U.S.C. § 9659, and a narrow reading of "any employee" to exclude Federal employees would frustrate the statute's goals, see Dedham Water Co. v. Cumberland Farms Dairy Inc., 805 F.2d 1074, 1081 (1st Cir. 1986) (CERCLA a remedial statute that should be construed liberally), by diminishing the sources through which information could be obtained regarding compliance with the environmental requirements of the statute.

(2) Sovereign Immunity. Congress waived sovereign immunity by including the Federal government in the definition of "person", by the Federal facilities provision (which although revised in 1986 was included int he original act), and by including federal employees in the citizen's suit provision.

[footnote] The Secretary also rejected an argument that the Secretary lacks authority to issue an order directed at another Federal agency because only the President has such power. The Secretary found no discretion not to require abatement of the violation and order appropriate relief where a violation is found.

The Secretary likewise rejected an argument that CERCLA did not apply because the Navy was not allocated funds for relief for environmental whistleblowers. Failure to allocate funds does not defeat a Government obligation created by statute. See New York Airways, Inc. v. United States, 369 F.2d 743, 748 (Ct. Cl. 1966).

(3) Preemptive effect of the Civil Service Reform Act of 1978. CERCLA was enacted more than two years after the CSRA, and yet made clear through CERCLA's definition of "person" and inclusion of the Federal facilities provision that CERCLA whistleblower provisions apply to the Federal government. Moreover, in the Joint Explanatory Statement to the Whistleblower Protection Act of 1989, which amended section 2302(b)(8) of the CSRA to strengthen the protection afforded whistleblowers, Congress made it clear that the WPA was not meant to limit any right or remedy that might be available under "a large number of environmental ... statutes which provide specific protection to employees who cooperate with federal agencies." Although the WPA was enacted after the activity of Complainant in the instant proceeding, the Secretary found the legislative history to be entitled to consideration.

XIV B 4 e

In Pogue v. United States Dept. of the Navy, 87- ERA-21 (Sec'y May 10, 1990), rev'd on other grounds , Pogue v. United States Dept. of Labor, 940 F.2d 1287 (9th Cir. 1987), Complainant argued that Respondent waived the defense of sovereign immunity because it was not raised before the ALJ. See Rule 12(b) of the Federal Rules of Civil Procedure. The Secretary held that sovereign immunity is a jurisdictional defense that may be raised at any time.

XIV B 4 f Labor union

In Delcore v. International Brotherhood of Electrical Workers, 91-ERA-7 (ALJ Dec. 4, 1990), the administrative law judge recommended dismissal of the complaint on the ground that the respondent, a labor union, is not an employer within the meaning of the ERA anti-discrimination provisions.

To the same effect: Delcore v. International Brotherhood of Electrical Workers, 91-ERA-27 (ALJ Mar. 26, 1991).

XIV B 4 f Rule 21 dismissal of non-employer

In Flanagan v. Bechtel Power Corp., 81-ERA-7 (Sec'y June 27, 1986), it was found that a building trade representative was not an employer and therefore not a proper party to the proceedings. The ALJ cited Rule 21 of the Federal Rules of Civil Procedure as authority for dropping the party as a defendant in the action. Flanagan v. Bechtel Power Corp., 81-ERA-7 (ALJ Nov. 19, 1981).

[Editor's note: Neither the ALJ nor the Secretary's decisions make it clear why the building trade representative was named as a party.]

XIV B 4 f Employer; labor union

The Secretary adopted the ALJ's finding that the respondent, a labor union, was not an employer within the meaning of the ERA anti-discrimination provisions. In a footnote, the Secretary noted that subsequent to the filing of the complainant's complaint, the ERA was amended to broaden the definition of "employer." The amendments, however, apply only to complaints filed after October 24, 1992, the date of enactment. Delcore v. International Brotherhood of Electrical Workers, 91-ERA-7 (Sec'y July 21, 1994).

XIV.B.4.f. Labor union not an employer

In Delcore v. International Brotherhood of Electrical Workers , 91-ERA-7 (Sec'y July 21, 1994), the Secretary adopted the ALJ's recommendation that the complaint be dismissed "since the Respondent/union is not an employer within the meaning of the ERA anti-discrimination provisions." See Delcore v. Intern. Brotherhood of Elec. Workers, 91-ERA-27 (Sec'y Jan. 12, 1994).

XIV B 4 g Leasing agent

issing casenote.

XIV B 4 h Small quantity generator under SWDA

Under the employee protection provision of the SWDA, 42 U.S.C. § 6971(a), reference is made to "any proceeding under this chapter." The referenced chapter is "Chapter 82, Solid Waste Disposal," 42 U.S.C. §§ 6901-6992k (1988), which governs, inter alia, the treatment, storage, transportation, and disposal of hazardous waste. Subchapter III, 42 U.S.C. §§ 6921-6939b.

Where the chemicals used by a respondent are regulated under the Act, 40 C.F.R. § 261.33(f) (1991), and the respondent is subject to regulation as a "small quantity generator," 40 C.F.R. § 261.5(a) and (g), complaints about chemical storage and disposal are covered substantively under the SWDA whistleblower provision.

Williams v. TIW Fabrication & Machining, Inc., 88-SWD-3 (Sec'y June 24, 1992).

XIV B 4 i Subcontractor

Where the complainant is a contract employee whose responsibility includes reporting safety concerns to the contractor and the licensee, the whistleblower provision of the ERA applies. The complainant's employer was a contractor to a contractor to the licensee of the Nuclear Regulatory Commission. DOL's jurisdiction does not depend on a direct employer-employee relationship, but derives from the construction and application of the statute; hence right to control and joint employer tests are not relevant. Section 5851(a) of the ERA provides that "[n]o employer . . . may discharge any employee or other discriminate against any employee . . . ." (Emphasis added.) It is not limited in terms to discharges or discrimination against any specific employer's employees. St. Laurent v. Britz, Inc., 89-ERA-15 (Sec'y Oct. 26, 1992), slip op. at 2-3.

[Nuclear & Environmental Whistleblower Digest XIV B 4 i]
EMPLOYER EMPLOYEE; OWNER OF CONTRACT FIRM NOT A COVERED "EMPLOYEE"

"EMPLOYER" WITHIN MEANING OF 42 USC § 5851(a)(2)(D) WHERE NO INDEMNIFICATION SPECIFIED IN CONTRACT WITH DOE
[N/E Digest XIV B 4 i]

In Beacham v. PAI Corp. , 94-ERA-27 (ALJ Feb. 7, 1996), the Respondent requested dismissal based on the affirmative defense of lack of subject matter jurisdiction because the Respondent assertedly was not an "employer" as defined by 42 U.S.C. § 5851(a)(2)(D) as amended in 1992. In pertinent part, section 5851(a)(2)(D) provides that the term "employer" includes:

(D) a contractor or subcontractor of the Department of Energy that is indemnified by the Department under section 170 d. of the Atomic Energy Act of 1954 (42 U.S.C. 2210(d)), . . .

The Complainant was employed by the Respondent pursuant to two contracts. Under the first, the Respondent supplied consulting services to the United States Department of Energy (DOE) at the Savannah River Operations Office. Under the second, the Respondent provided technical services as a subcontractor to a third company which had a prime contract with DOE, also at the Savannah River Operations Office. The Respondent maintained that it was not an "employer" within the meaning of the ERA because the contract and the subcontract did not provide for indemnification.

The ALJ reviewed the legislative history surrounding the 1992 ERA amendments, and the Price Anderson Act Amendments of 1988 (which provide that the Secretary of Energy shall enter into indemnification agreements until August 1, 2002 "...with any person who may conduct activities under a contract with the Department of Energy that involve the risk of public liability...." 42 U.S.C. § 2210(d)(1)(A)) and the resulting DOE acquisition regulations, and concluded that the indemnity language must be read into the contracts. The ALJ concluded that "[a] narrow reading of the Act would encourage employers to intentionally leave out indemnity language in an effort to evade the whistleblower protection provisions of the Act."

XIV B 4 i Contract worker; protection regardless of categorization as employee of contract firm or firm at which he performed the contract work

The employee protection provision of the ERA protected a contract worker regardless of whether he was an employee of the contract firm or the power corporation at which he performed the contract work. Dysert v. Florida Power Corp., 93-ERA-21 (Sec'y Aug. 7, 1995), citing Hill v. TVA, 87-ERA-23 and 24 (Sec'y May 24, 1989).

XIV B 4 i Contractor to licensee

A contractor to a licensee of a nuclear power facility is an employer covered by the ERA, 42 U.S.C. § 5851(a). Nichols v. Bechtel Construction, Inc., 87-ERA-44 (Sec'y Oct. 26, 1992), slip op. at 8.

XIV B 4 i Requirement of employer-employee relationship

In Hill v. Tennessee Valley Authority, 87-ERA-23 and 24 (Sec'y May 24, 1989), former employees of a nuclear safety consulting company that had a contract with the respondent alleged that the respondent violated the ERA when it significantly restricted the scope of the consulting company's contract and then refused to renegotiate the contract, causing the termination of the complainants' employment in retaliation for the complainants' investigation, corroboration and disclosure of safety problems in the respondent's nuclear power program.

The ALJ held that the ERA requires an employer-employee relationship between the parties. The Secretary disagreed.

Section 5851(a) provides in pertinent part that "[n]o employer . . . may discharge any employee or otherwise discriminate against any employee . . . ." (emphasis added) It is not limited in terms to discharges or discrimination against any specific employer's employees, nor to "his" or "its", employees. Compare, e.g., 29 U.S.C. § 158(a)(4) (1982) (" an employee"); 29 U.S.C. § 158(a)(5) (" his employees"). oreover, section 5851(b) permits the filing of a complaint be " any employee, who believes he has been discriminated against by any person" in violation of subsection (a).

Given the purposes of the ERA whistleblower provision, on-site employees of a contractor, whose responsibility is identifying, investigating and reporting safety complaints to the licensee, can be an important source of information regarding nuclear plant safety. Thus, application of the ERA to the instant claims is consistent with the legislative history of the whistleblower provision to "provide protection to employees of Commission licensees, applicants, contractors, or subcontractors" who pursue quality and safety investigation and complaints. H.R. Conf. Rep. No. 95-1796, 95th Cong., 2d Sess. 16 (1978), reprinted in [1978] U.S. Code Cong. & Admin. News 7304, 7309. It is also consistent with the Secretary's interpretation of section 11(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 660(c) (1982). See 29 C.F.R. § 1977.5(b) (1988). In addition, it is consistent with the National Labor Relations Act definition of employee, the Title VII definition of employer, and prior ERA decisions of the Secretary indicating that applicants for employment and former employees are protected from discrimination by their prospective and former employers, although no employer-employee relationship existed at the time of the alleged discrimination. See Flanagan v. Bechtel Power Corp., 81-ERA-7 (Sec'y June 27, 1986); Egenrieder v. etropolitan Edison Co., 85-ERA-23 (Sec'y Apr. 20, 1987).

The Secretary limited her ruling to the narrow facts and circumstances of the case presented.

XIV B 4 i Definition of employer

A subcontractor of an NRC licensee is an employer subject to ERA, 42 U.S.C. § 5851(a). Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984).

[Nuclear and Environmental Whistleblower Digest XIV B 4 j]
EMPLOYER-EMPLOYEE RELATIONSHIP; INDIVIDUALS PROPERLY DISMISSED IF THEY DID NOT CONTROL TERMS AND CONDITIONS OF EMPLOYMENT; ANY DISCRIMINATORY ACTIVITY WOULD IMPUTED TO THEIR EMPLOYER

In Culligan v. American Heavy Lifting Shipping Co. , ARB No. 03-046, ALJ Nos. 2000-CAA-20, 2001-CAA-9 and 11 (ARB June 30, 2004), the ARB found that the ALJ had properly dismissed five individuals named as Respondents where the Complainant presented no evidence that the individuals had control over the terms and conditions of the Complainant's employment, or had acted in any capacity except as a supervisor within the scope of their employment with the Employer. The Board stated that "[e]ven if they engaged in discriminatory activity, which is not evident in this record, any liability would be imputed to their employer. Lissau v. Southern Food Services, Inc , 159 F.3d 177, 181 (4th Cir. 1999)."

XIV B 4 j Personal liability

Where the owner and president of Midwest Inspection Services, and idwest itself, were named as respondents, and the owner/president did not raise the defense of no personal liability below (on the ground that the complainant was employed by Midwest Inspection -- a corporation), he sent the telegram on behalf of himself and Midwest appealing the Wage and Hour determination, he shared an attorney with Midwest, all pleading were filed on behalf of both respondents, and on review before the Secretary he made no legal argument to support the contention that he should not be held personally liable, the Secretary held that the issue had been waived, and that the owner/president could be held personally liable for the violations of the ERA in the case. Lederhaus v. Donald Paschen & Midwest Inspection Service, Ltd., 91-ERA-13 (Sec'y Oct. 26, 1992), slip op. at 14-15.

[Nuclear & Environmental Whistleblower Digest XIV B 4 j]
EMPLOYER; NO LIABILITY OF RESPONDENTS' ATTORNEY AND LAW FIRM WERE THEY WERE NOT COMPLAINANT'S EMPLOYERS

See Doyle v. Westinghouse Electric Co., LLC , ARB Nos. 01 073 and 01 074, ALJ No. 2001 ERA 13 (ARB June 30, 2003), casenoted at XIV B 4.

[Nuclear & Environmental Digest XIV B 4 j]
INDIVIDUALS NAMED AS RESPONDENTS

In Williams v. Lockheed Martin Energy Systems, Inc. , ARB No. 98-059, ALJ No. 1995-CAA-10 (ARB Jan. 31, 2001), one member of the Board found in a dissent that the ALJ should not have summarily dismissed two individuals named as Respondents. The dissenter noted that individual liability was not supported under the TSCA and the CAA -- which prohibit "employers" from discriminating against whistleblowers --but that under the CERCLA and SWDA individual liability is a possibility because those statutes provide that no "person" shall discriminate against whistleblowers. The two other ARB members, however, declined to reach this issue as it was not raised by Complainant on appeal.

EMPLOYER; INDIVIDUALS AS: CABINET SECRETARY; FORMER HEAD OF OAA; SUPERVISOR
[N/E Digest XIV B 4 j]

In Varnadore v. Oak Ridge National Laboratory , 92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996), the Board held that the Secretary of Energy was not the Complainant's employer within the meaning of the ERA. Citing Stevenson v. National Aeronautics and Space Administration , 94-TSC-5 (Sec'y July 3, 1995) (individuals are not subject to suit under the TSCA and CAA).

Similarly, the Board held that a complaint lodged against the former head of the Office of Administrative Appeals, U.S. Dept. of Labor, should be dismissed because she was not the Complainant's employer. Her only connection to the Complainant was that she was alleged to have been employed by one of the Respondent's to advise it on the defense of the complaint brought by the Complainant.

In addition, the Complainant's supervisor was dismissed as a party where the Complainant did not allege that the supervisor was his employer.

XIV B 4 j PARTIES; LIABILITY OF UNINCORPORATED DIVISIONS OR DEPARTMENTS, PARENT COMPANIES; INDIVIDUAL EMPLOYEES

In Varnadore v. Oak Ridge National Laboratory, 95-ERA-1 (ALJ Sept. 20, 1995), the ALJ recommended dismissal of the following parties:

an unincorporated division of the Complainant's employer;
unincorporated departments of the Complainant's employer;
parent companies of the Complainant's employer;
an individual employed by the Complainant's employer; and
a consultant (the former Director of the Office of Administrative Appeals) for the Complainant's employer.

XIV B 4 j Individual liability for nonemployers

Individuals who are not employers are not subject to liability under the employee protection provisions of the TSCA and the CAA. Thus, in Stephenson v. National Aeronautics & Space Administration, 94-TSC-5 (Sec'y July 1, 1995), four management employees and a Wage & Hour investigator were properly dismissed as Respondents.

XIV.B.4.j. "Persons" includes corporations

The SDWA applies to "persons," 42 U.S.C. §6971(a), and "persons" includes corporations. 42 U.S.C. § 6903(15). Crosier v. Westinghouse Hanford Co., 92- CAA-3 (Sec'y Jan. 12, 1994).

XIV B 4 j Security guard service

In Johnson v. Old Dominion Security, 86-CAA-3, 4 and 5 (Sec'y May 29, 1991), the Respondent contended that it was not a covered "employer" because it did not engage in the activities regulated by the Act (e.g., the emission of airborne pollutants or the use, storage, and disposal of toxic substances) and because it had no control over conditions giving rise to the complaints. The Respondent was a security service and the complainants were employed as security guards at a U.S. Air Force Plant operated by General Dynamics Corporation.

The Secretary held that instant situation represents the exposure of a contractor's employees to hazards created by the operator of the worksite. But for the business arrangement of contracting with another employer for the particular services, a single employer would control all employees directly. In the circumstances of this case it would not make sense to tolerate discriminatory action taken by one employer while outlawing it when taken by another. The Respondent's argument that it should not be held accountable since it assertedly had no control over the hazardous conditions begs the point. The issue here is employment discrimination which the Respondent was perfectly capable of effecting.

XIV.B.4.j. Individual managers and supervisors

In Stephenson v. National Aeronautics & Space Administration, 94-TSC-5 (ALJ June 27, 1994), the ALJ noted that in a prior order he had dismissed five individual respondents on the ground that they are not employers, and hence, not proper parties respondent in these proceedings.

XIV B 4 j Law firm found not to be an "employer"

In Saporito v. Florida Power & Light Co., 94-ERA-35 (ALJ Apr. 5, 1995), both a power company and its law firm were named as Respondents. The law firm had represented the power company in several other proceedings involving the Complainant and matters before the Department of Labor and the Nuclear Regulatory Commission. The ALJ recommended dismissal of the law firm on its motion for summary decision on the ground that a law firm is not an "employer" within the meaning of the ERA, 42 U.S.C. § 5851(a)(2). The ALJ was not persuaded by the Complainant's contention that its association with and professional services and activities as advocate for the power company inducted the law firm into the category of an "employer" under the ERA.

[Nuclear & Environmental Whistleblower Digest XIV C]
AUTHORIZED REPRESENTATIVE OF EMPLOYEES; MUST HAVE BEEN ACTING IN REPRESENTATION OF SPECIFIC EMPLOYEES FOR PERSONAL STANDING TO ATTACH

In Slavin v. Pacific Northwest National Laboratory , ARB No. 00 081, ALJ No. 2000 ERA 26 (ARB Feb. 27, 2003), Complainant an attorney who has represented whistleblowers B alleged that he was discriminated against under the whistleblower provisions of the ERA and various environmental laws when the administrators of various "listserv" chat rooms (1) required that his future posting be approved or (2) banned him from the chat rooms altogether. Complainant alleged that DOE and its contractors combined and conspired to encourage censorship and blacklisting against him.

The ARB affirmed the ALJ's recommended dismissal of the complaint based on the Complainant's lack of standing to bring the action either as an employee or authorized employee representative. The ARB, however, clarified the ALJ's decision to the extent that the ALJ was unaware of the ARB's then recent decision in Anderson v. Metro Wastewater Reclamation District , ARB No. 98 087, ALJ No. 1997 SDW 7 (ARB Mar. 30, 2000), in which the ARB held that "authorized representative" in environmental whistleblower statutes which prohibit retaliation against such persons "encompasses any person requested by any employee or group of employees to speak or act for the employee or group of employees in matters within the coverage of [those] statutes...."

In the instant case, the ARB found it was not necessary to describe the precise parameters of the term because Complainant had failed to prove "that his alleged protected activity, i.e. , his use of listservs, was in furtherance of a specific client statutory employee's alleged protected activity, rather than in furtherance of Complainant's own personal concerns as a member of the public, albeit an attorney who has represented employees under the whistleblower statutes."

[Nuclear and Environmental Whistleblower Digest XIV C]
COVERED LITIGANTS; AUTHORIZED REPRESENTATIVE OF EMPLOYEES; POLICITICAL APPOINTEE TO BOARD OF DIRECTORS OF GOVERNMENT ENTITY

In Anderson v. Metro Wastewater Reclamation District , No. 03-9570 (10th Cir. Sept. 2, 2005) (case below ARB No. 01-103, ALJ No. 1997-SDW-7), the Tenth Circuit ruled that a political appointee to the Board of Directors of a metropolitan wastewater reclamation district ("Metro") was not an "authorized representative of employees" during her tenure as a Board director, and therefore lacked standing to sue under the employee protection provisions of seven environmental statutes.

The Court affirmed the ARB's holding that the plain language of the ERA, SDWA, CAA and TSCA only provide a cause of action to employees and not to their authorized representatives. The Court also affirmed the ARB's holding that the Complainant had failed to prove that she was an "authorized representative" of Metro employees and therefore failed to establish a necessary element of her claim under the CERCLA, SWDA and FWPCA.

First, the Court found that Congress' intent for the meaning of the term "authorized representative" was not clear, and therefore it would employ a Chevron deferential review on whether the ARB had presented a permissible interpretation. The final ARB decision required some tangible act of selection by employees in order for a person to be an "authorized representative of employees." The Court held that this construction was permissible.

Second, the Court agreed with the ARB's finding that, as a Board Director who was required to represent the citizens and not any particular segment of society or a particular interest group, the Complainant could not, as a matter of law "represent" Metro employees or union members. The Court agreed that any political motivation behind her appointment was not relevant. Finally, the Court found that substantial evidence supported the ARB's determination that the Complainant had failed to prove that she had been authorized to represent the employees or union members, and that any authorization amounted to self-authorization.

[Nuclear and Environmental Whistleblower Digest XIV C]
CAUSE OF ACTION; UNDER THE ERA, SDWA, CAA AND TSCA ONLY THE EMPLOYEE AND NOT HIS REPRESENTATIVE ARE COVERED

In Anderson v. Metro Wastewater Reclamation District , No. 03-9570 (10th Cir. Sept. 2, 2005), the Tenth Circuit held that the plain language of the whistleblower provisions of the ERA, SDWA, CAA and TSCA prohibit discrimination based on an employee's or his representative's protected activity. A whistleblower cause of action, however, depends on discrimination directed toward the employee. The cause of action inures to the benefit of the employee and not his representative. In contrast, the CERCLA, SWDA and FWPCA also protect authorized representatives of employees.

[Nuclear and Environmental Whistleblower Digest XIV C]
DEFINITION OF "AUTHORIZED REPRESENTATIVE OF EMPLOYEES" INCLUDES A TANGIBLE ACT OF SELECTION

In Anderson v. Metro Wastewater Reclamation District , No. 03-9570 (10th Cir. Sept. 2, 2005), the Tenth Circuit found that the Congress' intent in using the term "authorized representative of employees" in the whistleblower provisions of the CERCLA, SWDA and FWPCA was not clear. Therefore, under Chevron , its inquiry was whether the ARB's definition of the term to require some sort of tangible act of selection was a permissible construction of the statute. The court found that it was.

[Nuclear and Environmental Whistleblower Digest XIV C]
STANDING OF MEMBER OF BOARD OF DIRECTORS

In Anderson v. Metro Wastewater Reclamation District , No. 03-9570 (10th Cir. Sept. 2, 2005), the Tenth Circuit affirmed the ARB's definition of the term "authorized representative of employees" as requiring some sort of tangible act of selection. The issue became, therefore, whether the Complainant fit that definition.

The Complainant had been appointed to the Board of Directors of a metropolitan sewage disposal district, which was a political subdivision of the State. The Complainant's nomination had been by the mayor of Denver who was responding to a union's request for a Board member sympathetic to the union's views. During her tenure the Complainant had been outspoken about environmental issues that she believed reflected the views of union members.

The ARB found that under the relevant law, Board members were legally required to represent the citizens and not any particular segment of society or a particular interest group, and that any political motive behind an appointment was not relevant. In addition, the ARB found that the Complainant's evidence of authorization amounted, at best, to self-authorization. The Tenth Circuit found that substantial evidence supported these findings, and that the Complainant did not have standing under the whistleblower provisions of CERCLA, SWDA or FWPCA.

[Nuclear & Environmental Whistleblower Digest XIV C]
AUTHORIZED REPRESENTATIVE OF EMPLOYEES

In Anderson v. Metro Wastewater Reclamation District , ARB No. 01 103, ALJ No. 1997 SDW 7 (ARB May, 29, 2003), Complainant was an acknowledged environmental activist and part time instructor specializing in environmental issues at the University of Colorado. She was appointed to and confirmed as a member of a 59 member board of directors for the Denver wastewater reclamation district (Metro). Complainant was opposed to a settlement plan for pending litigation to accept for treatment wastewater from a Superfund site, and spoke out against it in board meetings, to the public and to the press. Complainant alleged that a number of actions taken by the board were in violation of the ERA and environmental whistleblower laws. Upon review of a ALJ decision recommending finding in favor of the Complainant, the ARB dismissed the complaint, finding that Complainant had failed to establish standing as an "authorized representative" under the pertinent whistleblower statutes.

The ARB first determined that "authorized representatives" are not afforded their own separate causes of action under the SDWA, CAA, TSCA and ERA, even if acting on the request of an employee. The ARB then determined that Complainant was not an authorized representative of metro district employees or union members for purposes of standing under the SWDA, CERCLA and the FWPCA, while serving on the Metro board of directors because the pertinent state law directed representation of the City and County of Denver, not a particular interest group, and because a preponderance of the evidence did not establish that Metro employees or union members authorized her to be their representative during the relevant period.

In regard to the second finding, the ARB indicated that "there must be some tangible act of 'selection' or authorization to enable the representative to perform any actions on behalf of the employees who selected him or her or authorized his or her representation." Slip op. at 12 (citation omitted). The Board indicated that "self authorization" or public perception is not sufficient. Even if the union viewed Complainant sympathetically, she did not have a mandate to speak for the union members or Metro employees at Board meetings. Although individual union members viewed her as their "voice" on the Metro board, this perception did not confer authority on Complainant to be the union's authorized representative. The ARB also pointed out testimony indicating that Complainant was not an authorized union bargaining agent.