UNITED STATES
DEPARTMENT OF LABOR

    As a preliminary matter I will consider the issue raised by Bechtel that the complainant was not its "employee", since this issue raises the question of subject matter jurisdiction.

    Bechtel relies on the use of the word "employee" in the statute and seizes on the language in King v. Tennessee Valley Authority, Case No. 80-ERA-1, slip op. (Decision of the Secretary, May 20, 1980),⁵ In King the Secretary quoted from the recommended decision of the administrative law judge as follows: "The language of the statute clearly refers to a person who is an employee, not to a person who is seeking to become employed," and adopted the ALJ's decision as his own. Slip op. at 3 and 4.

    King had claimed that the Tennessee Valley Authority's (TVA) refusal to rehire him on three occasions after he had been fired from his job as a painter for bringing a firearm on to the agency's Sequoyah Nuclear Plant site, was in retaliation for his having complained to the NRC about painting at Sequoyah which might violate NRC standards. However, the ALJ found that King's allegations of discrimination had not been substantiated and the claim would fail for lack of merit, a finding and conclusion specifically referred to in the Secretary's decision. Slip op. at 3. Thus, although the ALJ's decision recounted the

alleged blacklisting charge, it did not fully analyze the scope of protection provided by the ERA and its implementing regulations which define blacklisting as a violation. 29 C.F.R. § 24.2(b) (1985).

    Unlike the ALJ decision in King, here the ALJ treated in depth, the issue of "employee" and its proper construction under the statute and regulations. After thoroughly considering the issue, the ALJ came to a different conclusion, finding that "other considerations are more persuasive." R.D. and O. at 7. He discussed the issue as follows:

First, such a narrow interpretation would thwart the purpose of the Act to protect the "whistle blower", to the end that "employees and union officials could help assure that employers do not violate requirements of the Atomic Energy Act" [U.S. Code Congressional and Administrative News, 95th Cong. 2nd Sess. 1978, p. 7304], particularly in the case of a worker who, like this complainant, works frequent, short periods of employment. For such a worker the right of rehire is at least as valuable and crucial to his support of the protection of public health and safety as is protection against dismissal.

    Furthermore, the Senate Report leading to the legislation uses the expression "[a]ny worker" as a synonym in the following paragraph, indicating that the meaning intended was, in accordance with the purpose of the statute, to cover all workers insofar as they work as employees. It is fundamental that the real intent of a statute or any other statement can best be gleaned from a consideration of the objective of the document as a whole rather than from over- emphasis on isolated words taken out of context. The question is one of intent, not of technical grammar.

    Secondly, the regulation interpreting and applying this section specifically precludes the basis for the King decision. In King, the statement is

made that the language of the statute refers to an employee rather than to an individual who is seeking to become employed. The regulation, however, specifically identifies blacklisting as a violation of the law [29 C.F.R. § 24.2(b)]. Since blacklisting refers to a discriminatory practice of non-hiring, this provision can only apply to hiring. This does not directly refer to their status at the time of the protected activity, but the regulation refers to the parallel statutes [29 C.F.R. § 24.1] and the Senate Report traces the provision to a section of the "National Labor Management Act" [U.S. Code Congressional and Administrative News, op. cit., p. 7303]. Neither the statute now being applied nor any of these parallel statutes contains any definition of the term "employee", despite definitions of other terms, but the source statute did and does contain such a definition at 29 U.S.C. § 152(3). This definition applies to the provision in the Labor Management Relations Act on which all of the above statutes are patterned. That provision, at 29 U.S.C. § 158(a), provides in pertinent part:

"It shall be an unfair labor practice for an employer . . .

(4) to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this sub-chapter. . ."

    It is well established that under this provision the denial of employment to an applicant by an employer for the reason that the applicant had been an active union member or had given testimony against a former employer in an unfair labor practice proceeding constituted a violation of the law [NLRB v. Lamar Creamery Company, 246 F.2d 8, 10 (5th Cir. 1957); that an applicant for employment should be treated as an employee within the meaning of this statutory provision [ibid., citing John Hancock Mutual Life Insurance Company v. NLRB, 191 F.2d 483, 485 (D.C. Cir. 1951)]; that the

phrase "otherwise discriminate" in this statutory language includes discrimination in regard to hiring [Lamar and John Hancock cases. cited above, and NLRB v. Syracuse Stamping Company, 208 F.2d 77, 80 (2nd Cir. 1953)]; and that the term "employee" in this statute means any person who works as an employee, and is not limited to employees of the particular employer in question [Phelps Dodge Corporation v. NLRB, 313 U.S. 177, 191-2, 61 S. Ct. 845, 851 (1941)], in accordance with the statutory language at 29 U.S.C. § 152(3) that the

"term 'employee' shall include any employee, and shall not be limited to the employees of a particular employer . . . "

    It is thus clear that the parallel provisions in all of these statutes aimed at protecting workers from employment discrimination for assisting in the enforcement of the applicable laws was meant to apply to employment discrimination against any prospective as well as current employee, as set forth by statute in the original pattern and affirmed by the highest courts. The reason for, and necessity of, such an interpretation is obvious; without it, of encouraging them to assist in the enforcement of federal law would be frustrated, for even the best protected worker, under the interpretation which respondent urges, would have no protection against any employer except that particular one in whose employ he was at the time, and might thus be barred from his entire occupation with any other prospective employer.

    It is also clear that the regulations adopted to implement the statute presently involved contemplate precisely that definition which the Supreme Court approved above, as shown by the provision in 29 C.F.R. § 24.2(b) which expressly states that:

"(b) Any person is deemed to have violated the particular federal law and these regulations if such person . . . blacklists . . . any employee who has [performed any of the protected acts]".

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[Page 7]

    This tribunal therefore rejects the language in King v. Tennesse Valley Authority, cited above, that the statute refers to a current employee as distinguished from an individual who is seeking to become employed with a particular employer (Slip Opinion, page 6), or respondent's contention that the protected activity must have occurred while the employee was in the employment of this particular employer, or even that he be employed at the moment. Indeed, the circumstances of the present case point up the absurdity of the latter position. The complainant's resignation from his employment and his filing of the charges with the Nuclear Regulatory Commission both constitute essentially one course of action motivated by one consideration: concern for safety at the plant. To make the applicability of the statutory protection depend upon the essentially trivial and irrelevant sequence of steps within that unified course of action would be totally unreasonable.

It is therefore found and concluded that the complainant was an "employee" within the sense of the term as used in the statute and was within the class of persons meant to be protected by the use of that term, and it is further found and concluded that his filing of the charges was a protected activity under the statute.

R.D. and O. at 8-10.

    Upon full consideration of this issue, I agree with the ALJ and adopt his findings, reasoning, and conclusion that the term "employee' may include former employees.⁶ To do otherwise would ignore the remedial purposes of the statute and flout the analysis employed by the Supreme Court in Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941), when it determined

    The entire record in this proceeding has been thoroughly reviewed. The record supports the ALJ's determination that the Bechtel superintendent who made the decision not to rehire Flanagan was not aware of and thus not motivated by complainant's protected behavior. R.D. and O. at 11; T at 80-81. Accordingly, I agree with and adopt the findings and conclusion of the ALJ that Bechtel did not violate the ERA in refusing employment to Flanagan.⁷

    The complaint in this case is DENIED.

    SO ORDERED.

       WILLIAM E. BROCK
       Secretary of Labor

Dated: JUN 27 1986
Washington, D.C.

¹ Section 5851(a) provides:

No employer, including a Commission licensee, an applicant for a Commission license, or a contractor or a subcontractor of a Commission licensee or applicant, may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee) --

(1) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter or the Atomic Energy Act of 1954, as amended [42 U.S.C. 2011 et seq.], or a proceeding for the administration or enforcement of any requirement imposed under this chapter or the Atomic Energy Act of 1954, as amended;

(2) testified or is about to testify in any such proceeding or;

(3) assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other manner in such a proceeding or in any other action to carry out the purposes of this chapter or the Atomic Energy Act of 1954, as amended [42 U.S.C. 2011 et seq.].

² Recommended Decision and Order of Administrative Law Judge (ALJ) November 19, 1981 (R.D. and O).

³ Transcript of Hearing (T.).

⁴ The ALJ found that Wes Young, the building trades representative, was not an employer and therefore not a proper party to these proceedings and that Southern California Edison Company played no part in Bechtel's refusal to hire Flanagan. R.D. and O. at 7. The record supports these findings and I adopt them.

⁵ See also Greenwald v. The City of North Miami Beach, Case No. 80-SSDWA-2, slip op. (Decision of the Secretary, April 14, 1980).

⁶ Further support for this conclusion is found in Dunlop v. Carriage Carpet Shop, 549 F.2d 139 (6th Cir. 1977), a case under the Fair Labor Standards Act of 1938, § 15 (a) (3), 29 U.S.C. § 215(a)(3) (1982), and Rutherford v. American Bank of Commerce, 565 F.2d 1162 (10th Cir. 1977), a case under the Civil Rights Act of 1964, § 704(a), as amended, 42 U.S.C. § 2000e-3(a) (1982). In both cases, former employees were found to be "employees", protected against discrimination by their former employers.

⁷ Although Respondents have raised other issues, this result makes it unnecessary to address them.