In The Matter Of:

KEVIN JAMES,                                 CASE NO. 94-WPC-4

          COMPLAINANT,                       DATE:  June 28, 1996

     v.

KETCHIKAN PULP COMPANY,

          RESPONDENT.


BEFORE:   THE ADMINISTRATIVE REVIEW BOARD[1] 


                        ORDER DENYING REQUEST FOR 
                       RECONSIDERATION AND REHEARING

     This case arises under the employee protection provision of
the Federal Water Pollution Control Act (Clean Water Act), 33
U.S.C. § 1367 (1988).  In a March 15, 1996 Final Decision
and Order, the Secretary of Labor found that Respondent,
Ketchikan Pulp Company (KPC) violated the employee protection
provision when it suspended Complainant, Kevin James, because of
his cooperation with the Environmental Protection Agency
concerning KPC's violations of the Clean Water Act.  The
Secretary also found that KPC discharged James lawfully after it
learned that he had falsified certain expenses claimed in 1990
while traveling to another state for plastic surgery relating to
a work injury.  As remedies for the discriminatory suspension,
the Secretary ordered KPC to post a copy of a notice concerning
employees' rights and to pay the reasonable fees and costs James
incurred in bringing the complaint.

     James has moved for reconsideration and rehearing of the
Final Decision and Order.  He contends that evidence he obtained
after the record closed in this case shows that KPC witnesses
testified untruthfully in the administrative hearing concerning
the company's knowledge of James' protected activities and its
investigation of James.  KPC opposes the motion.

     The tendered new evidence concerns an issue on which James
prevailed before the Secretary, who explicitly found that James
was singled out for suspension because of his protected
activities.  
[PAGE 2]
Implicit in this finding is the recognition that James
discriminatorily was targeted for investigation by KPC. 
Notwithstanding KPC's impermissible motive in investigating
James, however, the company uncovered evidence that justified
firing him.  As the Supreme Court recognized in McKennon
v. Nashville Banner Publishing Co., 115 S.Ct. 879,
1995 U.S. LEXIS 699 at *19: "Once an employer learns about
employee wrongdoing that would lead to a legitimate discharge, we
cannot require the employer to ignore the information, even if it
is acquired during the course of discovery in a suit against the
employer and even if the information might have gone undiscovered
absent the suit."

     Here, the Secretary followed the Supreme Court's guidance
and did not require KPC to ignore the evidence it uncovered, even
though KPC's motive for conducting the investigation was
wrongful.  The Supreme Court recognized in McKennon that
an award of attorney's fees and, in appropriate cases, an
additional sanction may be employed to diminish the willingness
of employers to "undertake extensive discovery into an employee's
background or performance to resist claims."  Id. at *20. 
In this case, we believe that the Secretary's decision awarding
attorney's fees and costs to James is a sufficient deterrent.

     Since none of the evidence tendered by James concerns
whether he falsified his claimed expenses, we decline to reopen
or reconsider the Secretary's decision.[2]   See 29 C.F.R.
§ 18.54(c)(1995) and Timmons v. Mattingly Testing
Services, Case No. 95-ERA-40, Dec. and Ord. of Remand, June
21, 1996 (material evidence justifying reopening must be outcome-
determinative).


     Accordingly, the request for rehearing and for
reconsideration is DENIED.
     
     SO ORDERED.


                              ______________________________
                              DAVID A. O'BRIEN
                              Chair


                              ______________________________
                              KARL J. SANDSTROM
                              Member


                              ______________________________
                              JOYCE D. MILLER
                              Alternate Member

[ENDNOTES]
           
[1]    On April 17, 1996 a Secretary's Order was signed
delegating jurisdiction to issue final agency decisions under
this statute and these regulations to the newly created
Administrative Review Board.  61 Fed. Reg. 19978 (May 3, 1996)
(copy attached).

      Secretary's Order 2-96 contains a comprehensive list of the
statutes, executive order and regulations under which the Board
now issues final agency decisions.  A copy of the final
procedural revisions to the regulations (61 Fed. Reg. 19982),
implementing this reorganization is also attached.  The Board has
reviewed the entire record in this case, including the
Secretary's final decision and order.

[2]    We note that James claimed expenses of over $3600 for more
than one month of food and lodging, but offered no proof of
payment or credible evidence that he actually incurred the
claimed expenses.  We deem this false claim to be significant and
an appropriate justification for James' discharge.