ON PETITION FOR REVIEW OF A FINAL ORDER OF THE SECRETARY OF LABOR
Before Aldisert, Weis and Sloviter, Circuit Judges.
Respondent Edward Hanna persuaded the Secretary of Labor that a complaint of retaliation by an employer should have been deemed timely under the Toxic Substances Control Act although it was filed beyond the thirty-day limitation specified in the statute. We find no adequate basis in the record for tolling the limitation period, and, therefore, set aside the Secretary's order against the employer, a state school district. Finding the timeliness issue dispositive, we do not meet the School District's contention that as a state agency it is not within the scope of the Act.
Hanna complained to the Secretary of Labor about retaliation from his employer, the Allentown School District. Hanna asserted that the Toxic Substances Control Act, 15 U.S.C. §§ 2601-2629 (1976 & Supp. III 1979), had been violated when the School District discriminated against him for activities designed to uncover health hazards from asbestos construction materials in school buildings. After a hearing, an Administrative Law Judge concluded that Hanna's activities were not covered by the Act and that, in any event, his complaint was untimely. The Secretary reversed and ordered the School District to cease discriminating against Hanna. The School District has filed a petition for review.
Hanna is a teacher at Allentown High School and president of the Allentown Federation of Teachers, an organization that seeks to displace another union as the collective bargaining representative of petitioner's professional employees. In February 1979, he wrote to the president of the School Board and requested that steps be taken to determine whether there were any health hazards from asbestos used in the construction of district school buildings, and if so, what steps were required to cope with the situation. The Board declined Hanna's request, stating that an inspection had been previously conducted and corrective measures had been taken.
Hanna then wrote to the Pennsylvania Department of Environmental Resources, and a representative of that agency agreed to inspect the school buildings on March 6, 1979. Hanna requested a personal leave day "with justification" so that he could accompany the state inspector. A collective bargaining agreement with the School District allows teachers four days of annual leave, with pay, for personal convenience, one of which may be taken without giving any reason, termed "without justification." The School District, which classifies the requests, told Hanna on March 5 that leave for the inspection tour would be allowed "without justification."
The state inspector made the building survey as scheduled and was accompanied by Hanna. On March 22, Hanna requested permission to make an additional investigation, but, by letter of April 3 from the School District, was advised that a state examination of the buildings had been arranged and that his presence was not necessary. Building superintendents were notified that Hanna should not be allowed random access to any school other than the one to which he was assigned.
On April 19, Hanna wrote to the United States Environmental Protection Agency, praising an official for his appearance on a television program about asbestos in school buildings. Hanna narrated his own experiences in Allentown and his receptiveness to advice and help. The EPA replied by letter dated May 4, which included a reference to the anti-retaliation provision in the Toxic Substances Control Act. The agency enclosed a copy of the statute and stated in the letter, "Should you believe such action is warranted, we will be pleased to assist you further in referring you to the proper contact with the Department of Labor."
Hanna telephoned the EPA on several occasions and, after some delay caused by confusion at that agency, was referred to the Occupational Safety and Health Administration. On May 29, 1979, he submitted a complaint to OSHA alleging discrimination. He cited the denial of a day "with justification," the ban on random access to the school buildings, and an allegedly harassing inquiry about his March 6, 1979, lesson plan.
The ALJ to whom the case was assigned found that the limitation on access to buildings occurred no later than April 5, 1979, and the other incidents took place in March. He ruled that the thirty-day limitation period specified in the Act had lapsed before the complaint was filed, and the action was barred for that reason. In addition, he concluded that Hanna's activities were not designed to carry out the purposes of the Act, and the anti-discrimination provisions were therefore not applicable.
The Secretary of Labor determined that because the Act was relatively new and the EPA was uncertain as to where complaints should be filed, the thirty-day limitation period should be tolled. He reasoned that the time limitation should not be strictly enforced, since the Act states a complaint "may" be filed within thirty days. He also concluded that the statute was applicable and, finally, that Hanna had established a case of unlawful discrimination. In denying a motion for reconsideration, the Secretary, with no discussion, held that the School District was an employer within the meaning of the Act.*fn1
In addition to denying discrimination, on appeal the School District contends that there are two bars to the Secretary's order. It argues that the School District, as a state agency, is not within the undefined statutory term "employer," and in the alternative, the Act is unconstitutional, citing National League of Cities v. Usery, 426 U.S. 833, 96 S. Ct. 2465, 49 L. Ed. 2d 245 (1976). In addition, the School District asserts that the thirty-day limitation set out in the statute is jurisdictional, and thus Hanna's failure to comply requires dismissal.
This court has jurisdiction over the petition for review and therefore is empowered to pass on challenges to the jurisdiction of the Secretary of Labor. See 15 U.S.C. § 2622(c)(1). We conclude that the time limitation is not jurisdictional in the sense that noncompliance is an absolute bar to administrative action. Nevertheless, in these circumstances, the failure to file a complaint within the prescribed thirty days requires a decision in favor of the ...