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In Re Appeal of Osram Sylvania Inc.2/27/1998
Department of Labor
The petitioner, Osram Sylvania, Inc., appeals a decision of the New Hampshire Department of Labor (NHDOL) that it violated the New Hampshire Whistleblowers' Protection Act (Whistleblowers' Act), see RSA ch. 275-E (Supp. 1997), when it discharged the respondent, L. Cletus Kijek, in July 1995 for filing a complaint with the United States Occupational Safety and Health Administration (OSHA). We affirm in part, vacate in part, and remand.
The following facts were adduced at the NHDOL hearing. In the summer of 1995, Kijek was employed at Osram's production plant in Exeter. On more than one occasion, Kijek complained to his supervisor that the temperatures where he worked were excessive and reaching dangerous levels. On July 15, 1995, after management failed to remedy the heat problem to his satisfaction, Kijek informed his supervisor that he intended to file a claim with OSHA alleging a violation of 29 U.S.C. § 654 (1994) (OSHA Act). On July 17, 1995, Kijek filed a claim with OSHA's Concord office. He was terminated on July 26, 1995. While Kijek's termination letter states only that it was "apparent" that his employment at Osram was "not acceptable to either party," Osram asserted at the hearing that Kijek was terminated for filing a fraudulent workers' compensation claim and that the decision to terminate him had actually been made in 1994. The NHDOL found Osram's assertions not credible. Kijek filed a complaint pursuant to the Whistleblowers' Act with the NHDOL on August 2, 1995, alleging that he had been terminated in retaliation for filing the safety complaint with OSHA. He filed a similar complaint with the United States Department of Labor (USDOL) pursuant to section 11(c) of the OSHA Act. See 29 U.S.C. § 660(c) (1994). After a hearing on the merits, the NHDOL ordered Osram to pay Kijek back wages and reinstate him to his former position. This appeal followed.
On appeal, Osram argues that: (1) the NHDOL should have deferred to the USDOL's jurisdiction; (2) Kijek failed to satisfy the statutory elements of RSA 275-E:2; (3) Kijek failed to follow the grievance procedures mandated by the Whistleblowers' Act; and (4) the NHDOL erred in ordering Kijek's reinstatement.
I. Primary Jurisdiction
Osram argues that under the doctrine of primary jurisdiction, the NHDOL erred in refusing to defer its ruling pending a decision by the USDOL on Kijek's whistleblower complaint filed under section 11(c) of the OSHA Act. "e have long recognized the doctrine of primary jurisdiction; namely, that a court will refrain from exercising its concurrent jurisdiction to decide a question until it has first been decided by a specialized agency that also has jurisdiction to decide it." N.H. Div. of Human Services v. Allard, 138 N.H. 604, 607, 644 A.2d 70, 72 (1994) (quotations omitted).
Assuming, without deciding, that the doctrine of primary jurisdiction is applicable in cases where two administrative agencies possess concurrent jurisdiction, we find no error. Primary jurisdiction did not vest with the USDOL because its own administrative rules allow for postponement of proceedings by the USDOL and deference to other forums, see 29 C.F.R. § 1977.18(a) (1997), where the claim asserted and factual issues underlying the claim are substantially the same, and "the forum hearing the matter . . . the power to determine the ultimate issue of discrimination," id. § 1977.18(b) (1997); cf. Bd. of Trustees v. Keene State Coll. Educ. Assoc., 126 N.H. 339, 342, 493 A.2d 1121, 1124 (1985) (court must defer where statute conferred primary jurisdiction to the PELRB). Here, both the Whistleblowers' Act and section 11(c) claims and the underlying facts are virtuall
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