1 On April 17, 1996, the Secretary of
Labor
delegated authority to issue final agency decisions under, inter alia, the Energy
Reorganization Act of 1974, as amended, 42 U.S.C.
§ 5851 (1994), and the implementing regulations, 29 C.F.R. Part 24, to the newly created
Administrative Review Board (ARB). Secretary's Order 2-96 (Apr. 17, 1996), 61 Fed. Reg.
19978
(May 3, 1996). Secretary's Order 2-96 contains a comprehensive list of the statutes, executive
order,
and regulations under which the ARB now issues final agency decisions.
2 Section 211 of the ERA was
formerly
designated Section 210, but was redesignated pursuant to Section 2902(b) of the Comprehensive
National Energy Policy Act of 1992 (CNEPA), Pub. L. No. 102-486, 106 Stat. 2776, which
amended
the ERA effective October 24, 1992.
3 The parties have filed several
motions before
this Board. Orders concerning the granting of extensions of time in which to file briefs have
been
issued. Issues pertinent to re-opening the record and to supplemental authority cited by the
parties,
see Ltrs. of 5/5/96, 7/10/96, 7/31/96, 8/5/96 from Seater; Resp. Ltrs. of 5/16/96, 7/31/96,
8/6/96,are disposed of, either expressly or in substance, in this decision. It would not
serve
the interests of judicial economy to address further the specifics of those motions here.
4 The following abbreviations are
used herein for
references to the record: Hearing Transcript, T.; Complainant's Exhibit, CX; Respondent's
Exhibit,
RX; ALJ's exhibit, ALJX.
55/ Seater urges that a
financial
transaction engaged in by the ALJ during the course of the hearing in this case poses "at least a
potential appearance of impropriety." Ltr. of 1/24/96, accompanying Comp. Br. Seater states
that
the ALJ entered into a financial arrangement concerning the mortgage on the ALJ's residence
with
a subsidiary of a parent company having a significant role in the energy industry. Id. In
support of his view, Seater cites the importance of the outcome of the debate over
out-of-specification fasteners, which formed the basis for Seater's nuclear safety concern at SCE,
to the
nuclear industry. Id. Although the ALJ did err in excluding evidence relevant to the
extent
of the controversy at SCE over out-of-specification fasteners, see discussion
infra,
the ALJ also properly concluded that a determination concerning the merits of the divergent
views
on the fastener issue was not within his purview. R. D. and O. at 5 n.4. Furthermore, the
asserted
connection between the ALJ and the energy industry is too tenuous to pose a prohibited
appearance
of impropriety. See generally 18 U.S.C. Ch. 11, Bribery, Graft and Conflicts of Interest,
§§ 201, 208; 29 C.F.R. § 0.735-12, Conflict-of-interest laws (1995).
6 These principles are equally
applicable to
proceedings before this Board. The parties should also be mindful that reliance on inaccurate
factual
statements in briefs and motions does not enhance the persuasive value of the party's
corresponding
contention; it merely delays the decisional process. Cf. Avitia v. Metropolitan Club of
Chicago, 49 F.3d 1219, 1224 (7th Cir. 1995)(stating that "A misleading statement of facts
increases the opponent's work, our work, and the risk of error.").
7 Similar to the circumstances in
Frampton, Seater's counsel misjudged the length of time the hearing would take. In
enthusiastically agreeing with the ALJ's estimate that the hearing could be concluded in three
days,
Seater's counsel noted that his "experience in recent years with employers and whistle blower
cases
is they try to make the trials go too long." T. 43-44; see also 4/19/95 OALJ staff Report
of
Contact regarding telephone conference with parties' counsel (Seater's counsel believed case
could
be heard in 3 days, SCE counsel did not).
8 At hearing, the ALJ expressed
concern about
including evidence that would unduly burden the record. See, e.g., T. 344-45, 1101.
Section 18.403 of the OALJ Rules of Practice and Procedure provides that relevant evidence may
be excluded if the probative value of such evidence is "substantially outweighed" by the risk of
confusing the issues, misleading the trier of fact, or by concern regarding "undue delay, waste of
time, or needless presentation of cumulative evidence." 29 C.F.R. § 18.403. Section
24.5(e)(1) provides, inter alia, that the ALJ may exclude evidence that is "immaterial,
irrelevant or unduly repetitious." 29 C.F.R. § 24.5(e)(1). Section 24.5(e)(1) thus does not
allow for the exclusion of probative evidence unless it is "unduly repetitious." Section 24.5(e)(1)
was promulgated under Section 211 of the ERA and other statutory employee protection
provisions,
see 29 C.F.R. § 24.1(a), and is thus controlling as the specific program provision,
rather than the more general provision for Department of Labor adjudications found at Section
18.403. 29 C.F.R. §§ 18.1(a), 18.1101(c). The mandate of Section 24.5(e)(1) is
consistent with the nature of the evidence presented in a circumstantial evidence case of
retaliatory
intent, some of which may appear to be of little probative value until the evidence is considered
as
a whole, see generally Timmons, slip op. at 10-11 and cases cited therein. Section
24.5(e)(1)
is also in accord with Section 7(c) of the APA, 5 U.S.C. § 556(d).
9 The admission of these exhibits
into evidence
is subject to proper identification or authentication on remand. See 29 C.F.R. §
18.901; cf. 29 C.F.R. § 18.50 (authenticity of proposed exhibits submitted in
advance
of hearing).
10 Seater has filed a Motion to
Supplement
the Record with evidence that he urges is relevant to the collusion allegation in this case. As the
evidence proffered -- a magazine article concerning the relationship of the NRC to the nuclear
industry -- does not provide evidence that would link any interest his supervisors may have had
in
garnering favor with the NRC investigator to the fastener issue, we deny Seater's motion.
11 In addition to indicating a
degree of
sympathy toward the complainant and antipathy toward the respondent, the statements relied on
by
the ALJ indicated Udovich's intention to discount his fee if Seater did not prevail in this
complaint.
See ALJX 1; T. 287-88, 290-304. Any arrangement that links the amount of payment to
an
expert witness to the outcome of the litigation gives rise to questions
concerning the reliability of the testimony of such witness. See, e.g., Model Rules of
Professional Conduct, Rule 3.4(b) note (1995)("The common law rule in most jurisdictions is
that
it is improper to pay an expert witness a contingent fee."); see also Proposed
Amendments
to the Federal Rules of Civil Procedure to Implement the Agenda for Civil Justice Reform(recommendation to amend Fed.R.Evid. 702 by adding a "Prohibition on Contingent Fee for
Expert Witness"), reprinted in 60 U.Cin.L.Rev. 1025 (1992); Exec. Order No. 12,778,
§ 1(e), 56 Fed. Reg. 55195 (1991), 3 C.F.R. at 360, 362 (1992)(Guidelines to Promote Just
and Efficient Government Civil Litigation -- ban on contingency fees for expert witnesses);
but
see Note, Contingent Expert Witness Fees: Access and Legitimacy, 64 S.Cal.L.Rev.
1363 (1991)(proposing "nonpercentage contingency fees [for expert witnesses] as a viable
alternative to the present ban" in the interest of increasing access to legal system); see
generally
Ojeda v. Sharp Cabrillo Hosp., 8 Cal.App.4th 1 (1992)(discussing impact of various state
restrictions on contingent fee agreements with expert witnesses).
12 Section 8(a)(1) prohibits
unfair labor
practices that interfere with the exercise of employee rights to organize for purposes of collective
bargaining under the National Labor Relations Act. 29 U.S.C. § 158(a)(1)(1994).
13 Seater's argument in regard
to the
surveillance issue is somewhat muddled. See Comp. Br. at 25-27. In addition, in his
post-hearing brief before the ALJ, Seater cites a sign at the SONGS entrance which reads "For
your
protection, this facility is electronically monitored by video surveillance."
Comp. Post-Hearing Br. at 62; see CX 68; T. 767. Seater then observes, "Nothing on the
sign indicates or suggests that SCE will refrain from subjecting employees to surveillance as a
result
of protected activity." Comp. Post-Hearing Br. at 62. Seater's reliance on the notice at the
SONGS
entrance is wholly misplaced in this instance, where the burden of proof is on the complainant to
establish that improper surveillance did indeed occur or that Seater reasonably perceived that
such
surveillance was being conducted. See Section 7(c) of the APA, 5 U.S.C.
§ 556(d); see generally Marien v. Northeast Nuclear Energy Co., Case No.
93-ERA-00049, Sec. Dec., Sept. 18, 1995, slip op. at 5-6 (addressing complainant's burden of
proof under
42 U.S.C. § 5851(b)(3)(D)).
14 Our disposition of the
surveillance issue
obviates the need to address Seater's contention, Comp. Br. at 26, that the ALJ's striking of
Telford's testimony in this regard should be reversed. See 29 C.F.R. § 18.103(a).
15 We do not intend to suggest
by this
holding that expert testimony concerning how covert surveillance could be effected would not be
probative in any case. For example, in a case in which the reasonableness of a complainant's
perception of surveillance were challenged on the basis that such surveillance would not have
been
technically possible, such expert testimony may very well be probative.
16 In the discussion of this
issue among
counsel and the ALJ at hearing, SCE counsel indicated that when Horton responded to its notice
concerning their intention to schedule his deposition, he told them that he did not want to testify,
that
he did not want to give a deposition, that "he didn't want to go through that." T. 121-22.
17 In the discussion among the
ALJ and
counsel at hearing, Seater's counsel indicated that he had obtained the original version of the
Horton
statement, which was unsigned, from the files of the Department of Labor investigator pursuant
to
a Freedom of Information Act request; he had asked Horton to make any changes to the
statement
Horton felt were necessary before signing the statement; Horton's signing of the amended
statement
had been notarized on May 1, 1995.
T. 119-25.
18 Inasmuch as we construe
Horton's
written statement as serving the purpose of a discovery document, we need not reach SCE's
contention that the statement does not qualify for admissibility within the pertinent evidentiary
guidelines, see Resp. Brief at 24-5; Resp. Motion to Exclude Comp. Exhibits at 2-10; T.
119-21.
19 The four factors are as
follows: 1)the
prejudice or surprise to the opposing party; 2)the ability of that party to cure the prejudice; 3)the
extent to which allowing the testimony would disrupt the orderly and efficient trial of the case at
hand or other cases; 4)bad faith or willfulness in failing to comply with the pre-trial order.
Price, 961 F.2d at 1474 and cases cited therein; see generally Fed.R.Civ.P.
37(c)(1),
which provides sanctions for failure to disclose witness information pre-hearing "without
substantial
justification."
20 Seater's reliance on the
Americans with
Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., is misplaced, however.
See
Comp. Br. at 24. Access for handicapped individuals to Federal agency proceedings is
provided
for by Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791. We
also
note that neither statute is controlling on the issue at hand, i.e., how to strike a balance
between the due process rights of the parties to this case.
21 Section 18.611 is based on
Rule 611 of
the Federal Rules of Evidence. See 29 C.F.R. Part 18, App. to Subpart B--Reporter's
Notes.
22 It is also noteworthy that,
on April 23,
1996, the United States Supreme Court issued an order proposing an amendment to Rule 43(a) of
the Federal Rules of Civil Procedure, to be effective December 1, 1996, which would, "for good
cause shown in compelling circumstances and upon appropriate safeguards, permit presentation
of
testimony in open court by contemporaneous transmission from a different location."
23 In Purba v. I.N.S.,
884 F.2d 516
(9th Cir. 1989), the court agreed with the petitioner that the telephonic deportation hearing
conducted
by the Immigration and Naturalization Service violated the Immigration and Nationality Act
provision, 8 U.S.C. § 1252(b)(1982), requiring a hearing "before" an immigration judge.
In
Casey v. O'Bannon, 536 F.Supp. 350 (E.D.Pa. 1982), the court rejected welfare
applicants'
constitutional challenge to telephonic hearings on their appeals, based on analysis under
Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902 (1976).
24 The possibilities range from
a standard
discovery deposition with live testimony at hearing, if Horton's condition has improved
sufficiently
to allow such participation, to prohibiting discovery and taking Horton's testimony telephonically
if Horton's condition so requires. Telephonic testimony should be taken with specified
safeguards
to reliability in place, e.g., a notary/court reporter present with the witness to administer
the
oath or affirmation pursuant to Section 18.603, the recording of the witness testimony on
videotape,
in addition to transcription of the testimony by the court reporter at the hearing site, see
Ferrante, 127 Misc.2d at 353, 485 N.Y.S.2d at 962; see also In re San Juan Dupont Plaza
Hotel Fire Litigation, 129 FRD 424, 429 (P.R.Dist. 1990)(Order regarding conditions for
satellite transmission of witness testimony); cf. Geneva v. Tills, 129 Wis.2d 167, 384
N.W.2d 701 (Wis.S.Ct. 1986)(reliance of telephone witness on documents not then available to
opposing party denied that party a meaningful opportunity to cross-examine the witness).
25 At hearing the previous day,
Seater
proffered the foregoing exhibits, as well as exhibits CX 164-168. T. 1623-30. SCE agreed to
waive
objection to Seater's proffer of CX 164-168, which had not been exchanged with SCE prior to the
hearing, in exchange for Seater's agreement not to object to exhibits proposed for submission in
connection with the testimony of SCE's budget expert, Garret Dokter, the following day. Id.;
see T. 1783-85 (response of SCE counsel to Seater's objection to one of the Dokter exhibits,
reminding the ALJ of the parties' agreement the previous day; the ALJ responded that it was not
his
role "to enforce contracts between counsel.") The ALJ stated that he would reserve ruling on the
admissibility of exhibits CX 159-163 and 169-175 until they were actually proffered. T. 1629.
We
note that the parties are considered to be bound by their stipulations. See, e.g., 29 C.F.R.
§§ 18.17, 18.51.
26 Seater's counsel stated that
Seater had
had the documents designated as CX 162, 163, 170, 172 and 174 for some months prior to the
hearing, but had not provided them to his counsel until counsel requested that Seater re-review
the
materials in his possession, following the first week of hearing. T. 1914-15; see T. 1919,
1923, 1925-26.
27 At hearing, Seater did
address the
substance of CX 162, which he indicated was relevant to animus against him as a whistleblower
by
the SCE Nuclear Safety Concerns (NSC) office staff.
T. 1915. The document designated as CX 162 represents an excerpt from the record of Seater's
safety concern that was maintained by the NSC office, which is in evidence at CX 41; an almost
identical version of the text of CX 162 is found at pages 10-14 of CX 41. See 29 C.F.R.
§ 24.5(e)(1); n.8 supra. Also repetitive of evidence already in the record is the
document designated as CX 172, which concerns SCE's plan to bring Francis Brewer back to
work
following his termination at the end of June 1994, for the purpose of working on the fastener
safety
issue. Similarly, the two page exhibit marked CX 170 contains a copy of an organizational chart
for
the SCE division where Seater worked dated November 10, 1993, which is already in evidence at
RX 26; the attached e-mail from one of Seater's supervisors presents statements testified to by
that
supervisor at hearing. The significance of the document designated as CX 163, which appears to
be
an outline for a document to be drafted by SCE management in response to the fastener safety
concern, is unclear. The same is true of the document marked CX 174, which concerns an NSC
staff
interview with Seater in late August 1994 regarding objections to his termination that he had
voiced
to the personnel service through which he had been hired by SCE.
28 We note that these
documents were all
generated by SCE personnel and had been provided to Seater in the course of discovery. See
CX 162-63, 170, 172, 174; T. 1914, 1918, 1922. That factor largely undermines SCE's
contention that it would be subjected to unfair surprise by the admission of these documents. T.
1914-16, 1922, 1930. We also note that the ALJ correctly ruled that SCE could not properly
withhold evidentiary exhibits simply because such exhibits would be used on cross-examination
of
witnesses. T. 559-62; see RX 107. Such a practice would interfere with the elimination
of
surprise that is the purpose of discovery and pre-hearing exchanges and disclosures. See
Malpass and Lewis, slip op. at 13. Section 18.613 of the OALJ Rules of Practice and
Procedure,
modeled on Rule 613 of the Federal Rules of Evidence, see n.21 supra, does
provide, however, a narrow exception for evidence of inconsistent statements by witnesses, when
introduced solely for the purpose of impeaching witness testimony. T. 559-62, 587-91. Pursuant
to Section 18.613, evidence of such statements may be withheld, subject to disclosure to
opposing
counsel at the time the witness is questioned regarding those statements. 29 C.F.R. §
18.613;
see also 29 C.F.R. § 18.801(d)(1)(regarding admission of such statements as
substantive evidence); see generally Fun Connection, 302 N.L.R.B. 740, 747-48
(1991)(addressing prior inconsistent statements under FRE 801(d)(1)) and authorities cited
therein.
29 As previously indicated, we
affirm the
conclusion of the ALJ that the evidence does not establish that SCE's decision to terminate Seater
in December 1994 was retaliatory. As reflected in our analysis of the termination issue
infra, that conclusion is supported by uncontradicted testimony and documentary
evidence.
Consequently, any failure by the ALJ to resolve the conflicts in the controverted evidence of
record
relevant to the termination decision does not interfere with our affirmance of his conclusion
regarding the termination decision. See n.38 infra.
30 The record contains
conflicting
testimony by SCE supervisors concerning whether the decision to commission the CSI study was
prompted, at least in part, by the filing of Seater's safety concern. T. 1351-52 (Reilly), 1164
(Rosenblum). The "Introduction" section of the CSI Procurement Engineering Diagnostic Report
itself states that the study was requested by Herring, the Procurement Engineering supervisor,
and
notes that "Appendix A will highlight concerns associated with the Nuclear Safety Concern."
31 An understanding of the
respective roles
of Reedy and CSI is important to an evaluation of the extent of the industry-wide technical
debate
about fasteners and the extent of the internal controversy at SCE on the fastener issue; and, in
turn,
the role of these factors in the mindset of the SCE supervisors who made the decision to
accelerate
Seater's termination date. See discussion regarding relevancy of evidence, supra.
32 We also note that the
evidence
establishes that higher management was planning to transfer Telford from his regular duties in
the
laboratory but Opitz resisted this and retained Telford there. T. 642-43 (Seater), 755-56, 851-56
(Telford), 1698-1700, 1716-17 (Opitz).
33 The "Grand Total" YTD
variance figure
on RX 76 is actually $169,506, rather than $167,506 as indicated in the R. D. and O.
34 The year-to-date deficit
amount would
become the year-end deficit amount only if actual expenditures during the remainder of the year
were equal to the amounts budgeted for the remainder of the year. Pertinent documentary
evidence
indicates, however, that expenditures could not have been expected to remain at the budgeted
level.
As of early May 1994, when RX 76 would have been available to Herring, Procurement
Engineering
expenditures could be expected to decrease in relation to the amounts budgeted for the remainder
of the year. See RX 10, 18; T. 511 (Hadley),
1774-75 (Dokter). The substantive significance of this error will be addressed in the discussion
of
the acceleration issue, infra.
35 The parties stipulated that
Seater had
engaged in protected activity at SONGS. See R. D. and O. at 5.
36 The record unequivocally
establishes
that Seater's immediate, second level and third level supervisor, in addition to others in higher
management, were aware of Seater's December 27, 1993 protected activity within a few days
thereafter. See R. D. and O. at 6-8, 14; see generally Samodurov v. General Physics
Corp., Case No. 89-ERA-20, Sec. Dec., Nov. 15, 1993 (a complainant may establish
knowledge
of protected activity by either direct or circumstantial evidence).
37 The Katz study was based
in part on a
staffing study produced by consultant T.D. Martin. RX 19; see T. 1011-14, 1126-36
(Rosenblum). At the time that he conducted the study, Katz was head of the Nuclear Oversight
Division. T. 1223-24 (Slagle).
38 Our reliance on
uncontradicted
testimony and documentary evidence as support for the foregoing analysis obviates the need for
us
to review further findings of fact and evidence relied on by the ALJ in drawing his conclusion
that
Seater had not established that the decision to terminate him in December 1994 was retaliatory.
39 In a case such as this, in
which the
respondent has proffered evidence to rebut the complainant's prima facie case, the ALJ
may
simply proceed to weigh all the relevant evidence to determine whether complainant's ultimate
burden of establishing retaliatory intent by a preponderance of the evidence has been met.
See
Erb v. Schofield Mgmt., Inc., ARB No. 96-056, Sept. 12, 1996, slip op. at 3 (citing
Carroll
v. Bechtel Power Corp., Case No. 91-ERA-46, Sec. Dec., Feb. 15, 1985, slip op. at 11 n.9,
aff'd sub nom., Carroll v. United States Dept. of Labor, 78 F.3d 352, 356 (8th Cir.
1996)).
40 Despite SCE's counsel's
suggestion to
the contrary, T. 517, Herring did not testify that he was relying on the Hadley year-end
projections
in making the decision to accelerate Seater in April 1994.
41 The ALJ recognized the
evidence of
Herring's hostility toward Seater and other whistleblowers in the laboratory, R. D. and O. at 28;
see R. D. and O. at 9, as well as the hostility harbored by NSC office personnel toward
Seater, R. D. and O. at 29. He also noted the testimony of various witnesses, including SCE
managers, that Seater's action of December 27, 1993 was "unprecedented." R. D. and O. at 6.
On
remand, the ALJ must carefully consider the foregoing factors, in addition to SCE's response to
the
meeting of Seater and other whistleblowers with the NRC in Washington, D.C. in April 1994, in
determining whether retaliatory animus contributed to the decision to accelerate Seater's
termination.
42 Seater also contends that
SCE
demonstrated its hostility toward activity protected under the ERA by basing its policy toward
SCE
employees who appeared as witnesses in this case on the content of each witness' testimony.
Comp.
Br. at 22-23. This contention is refuted by the record, which indicates that SCE paid all
employees
that appeared at the hearing their regular salary but limited reimbursement for expenses related to
appearing at hearing to only those employees who were called by SCE as witnesses. T. 1155-60
(Rosenblum), 1955-58 (Hadley); see T. 1636-38, 1940-42. By rejecting Seater's
contention
in this regard, we do not suggest that the intimidation of witnesses in an ERA hearing is not a
serious
matter. See Remusat, slip op. at 8-9 and authorities cited therein; see also T.
1941-42 (Seater's counsel's discussion with ALJ regarding the foregoing issue).