DATE: November 20, 1995
CASE NOS. 91-ERA-1 and 91-ERA-11
IN THE MATTER OF
ALLEN MOSBAUGH,
COMPLAINANT,
v.
GEORGIA POWER COMPANY,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND REMAND ORDER
In these consolidated cases arising under the employee
protection provision of the Energy Reorganization Act of 1974
(ERA), as amended, 42 U.S.C. § 5851 (1988),[1] Complainant,
Allen Mosbaugh, alleged that Respondent, Georgia Power Company,
violated the ERA when it downgraded his performance evaluation,
removed his company car, suspended him with pay, and discharged
him. In a Recommended Decision and Order (R. D. and O.), the
Administrative Law Judge (ALJ) recommended dismissal of the
complaint on the ground that Mosbaugh did not establish that
Georgia Power violated the ERA. The ALJ's findings of fact,
R. D. and O. at 4 - 32, are well supported by the record and I
adopt them. After review of the record, however, I
decline to adopt some of the inferences drawn from the facts and
relied upon by the ALJ in reaching his recommended decision.[2]
Therefore, I reject the ALJ's recommendation, find that Georgia
Power violated the ERA when it discharged Mosbaugh, and remand
the complaint to the ALJ for a recommended decision concerning
remedies.
BACKGROUND
[PAGE 2]
Mosbaugh was a high level manager for Georgia Power at its
Plant Vogtle nuclear power station near Augusta, Georgia. While
serving as Acting Assistant General Manager of Plant Support in
early 1990, Mosbaugh anonymously reported to the Nuclear
Regulatory Commission (NRC) that other plant managers willfully
had violated NRC technical standards. T. 140-144; CX 15. As a
result, the NRC's Office of Investigation (NRC-OI) began an on-
site investigation and questioned several employees. T. 149-150.
Mosbaugh observed that senior managers' attitudes toward him
changed after the company learned of the NRC-OI investigation.
T. 151-158 The plant's General Manager, George Bockhold, told
Mosbaugh that "if you can't conform" to company standards, "you
need to get out." T. 159, 162. Mosbaugh observed that plant
employees were afraid to disagree with management's opinions.
T. 184-185.
As a member of the Plant Review Board, Mosbaugh spoke out
against using an experimental filtration device called a FAVA
filter because it did not meet NRC standards. T. 175-181.
Mosbaugh filed an extensive, written internal Quality Concern
about the company's decision to use the FAVA filter, T. 181,
CX 22, and followed up with additional written memoranda
concerning it. CX 23, 24. Bockhold took the investigation of
Mosbaugh's concern away from the Quality Concerns Coordinator and
handled it himself. T. 182-183.
Mosbaugh believed that his notes and recollections about
conversations and events were not sufficient proof of the safety
violations that he believed occurred. T. 189-190. He read a
legal opinion letter advising Georgia Power that surreptitious
one-party tape recording was lawful in the State of Georgia.
CX 26. As a means to document his safety concerns and any
retaliation for expressing them, Mosbaugh began to
surreptitiously tape record selected conversations in which he
participated. T. 202-205.
In a March 1990 accident, Plant Vogtle lost all electrical
power and was unable for a time to keep the back up generator
running. The event caused the reactor to heat up unsafely.
T. 207-209. Consequently, Georgia Power declared a serious "site
area emergency." T. 211.
Prior to restarting the reactor after the emergency, Georgia
Power had to assure the NRC in a Confirmation of Action Letter
(COAL) that the reactor could resume power operations safely.
T. 255-256. Mosbaugh reviewed the COAL that was submitted to the
NRC, CX 40, and determined that Georgia Power may have
intentionally misstated the reliability of the generators.
T. 258-259. He sent a memorandum to Bockhold reporting the
problems with the generators' air quality system, T. 263, CX 41,
[PAGE 3]
and obtained further data that verified generator failures.
T. 265-267. Mosbaugh reported the false statements to his
managers. T. 267.
The COAL did not end the matter, however. Mosbaugh reviewed
a draft Licensee Event Report (LER) that contained the same false
information about the generators as the COAL. T. 268-269. He
promptly reported the false information in the draft to
responsible managers, but the final LER submitted to the NRC
retained the false information. T. 269-270; CX 42. Mosbaugh
followed up with another memorandum to Bockhold enclosing the
data that showed the falseness of the statements regarding the
generators. T. CX 43. Mosbaugh later worked on revisions to
correct the false statements in the LER and the COAL. T. 273,
279-280.
At a staff meeting after the site area emergency, a manager
made a statement that Mosbaugh interpreted as promoting a lax
attitude toward adherence to technical safety requirements if it would delay the restart of the reactor. T. 213-214. As a
result, Mosbaugh began to tape record more of his conversations.
Mosbaugh learned that Tom Greene, the Assistant General
Manager whom Mosbaugh had temporarily replaced, was returning
from school and would reclaim his position. T. 278-279.
Mosbaugh feared for his future in the company because he had no
definite assignment since the position he formerly occupied had
been abolished. T. 282. When Greene returned, Mosbaugh also was
removed from the Plant Review Board. T. 280-281; CX 44.
Mosbaugh filed two additional anonymous complaints with the
NRC concerning safety issues at the plant. T. 219-222; CX 35,
36. Mosbaugh also learned that the NRC called senior managers to
Washington, D.C. and criticized the attitude at Plant Vogtle as
"cowboy, cavalier, and cocky." T. 274-275; see also T.
856.
The NRC granted Mosbaugh "confidential alleger" status in
June 1990 and sought his cooperation in an investigation
concerning the company's intentional submission of material false
information. T. 286-287; CX 45. An NRC-OI investigator later
asked Mosbaugh to wear a concealed tape recorder onto the Plant
Vogtle site. T. 304-305. Mosbaugh did not reveal that he had
made such tape recordings on his own, T. 289-290, 304, and
eventually declined the request.
Mosbaugh learned that the NRC would conduct a rare Special
Safety Inspection at the plant. T. 297. Bockhold intentionally
did not invite Mosbaugh to a meeting of the plant managers
concerning how to prepare for the inspection. T. 299, 670-671.
Mosbaugh later overheard Vice President Ken McCoy state that the
special inspection occurred "because of some immature behavior on
the part of an employee or employee alleger." T. 299.
In the midst of the two week special inspection, Mosbaugh
[PAGE 4]
received a mid-year performance rating of "average" that was the
lowest overall rating he had ever received at Georgia Power.
T. 301-302; CX 48. The appraisal listed improving communications
as a goal for Mosbaugh to achieve. CX 48.
Mosbaugh was selected to attend school to receive a Senior
Reactor Operator license ("SRO school") and learned that he was
not entitled to keep his company car while attending SRO school.
RX 32.
At a pre-hearing deposition taken by Georgia Power in an
earlier ERA case, Mosbaugh revealed that he had filed several
confidential allegations with the NRC and also revealed the
existence of his tape recordings. T. 308-309. The same day,
Mosbaugh joined a former Georgia Power employee in a petition to
the NRC seeking review of the transfer of certain management
functions concerning Plant Vogtle to a new entity, Southern
Nuclear Power Company (Southern Nuclear). CX 49.
Vice President McCoy was upset about the tape recording and
recommended that Mosbaugh be placed on administrative leave while
the company investigated the taping. T. 568-570. Georgia
Power's President, A.W. Dahlberg, agreed and suspended Mosbaugh
with pay. T. 594. Thirty days later, Georgia Power discharged Mosbaugh for engaging in surreptitious tape recording at Plant
Vogtle. T. 478-479, 581; CX 53, 54.
Mosbaugh filed ERA complaints challenging the lawfulness of
the lowered performance appraisal, removal of his company car,
suspension, and discharge.
MOTIONS CONCERNING THE RECORD
1. Motions to exceed page limitations in briefs.
Mosbaugh's unopposed motions to exceed the page limitation
in his initial brief and in his 1994 supplemental brief are
granted and the briefs are accepted as filed.
2. Georgia Power's motion to strike portions of Mosbaugh's
brief and reply brief.
Georgia Power asks that I strike portions of Mosbaugh's
brief and reply brief because they attempt to introduce evidence
that is not part of the record. Since I agree that offers of
proof are not evidence (Motion at 3, 8), I shall not rely upon
any statements in the offers as evidence.
Mosbaugh attached to his Reply Brief a copy of the
February 19, 1993 decision of the NRC's Atomic Safety and
Licensing Board (ASLB Decision) that granted Mosbaugh's petition
to become a party in the case in which Georgia Power sought
authority to transfer its operating license to Southern Nuclear.
The ASLB decision was issued after the close of the record, the
issuance of the recommended decision, and the transfer of the
record to the Secretary.
[PAGE 5]
Under the regulations governing proceedings before
Department of Labor administrative law judges, a party may seek
authority to supplement the record with newly discovered evidence
that was not readily available prior to the close of the record.
18 C.F.R. § 18.54(c). I will treat Mosbaugh's reference to
the ASLB decision as a request to supplement the record with the
decision.
The ASLB decision is a relevant public document that became
available only after the close of the hearing and the transfer of
the record to me. Although I do not consider the ASLB decision
critical to my decision in this case and I have not relied upon
it, I will, in the interest of a complete record, admit the ASLB
decision into the record for whatever probative value it may
have. See 5 U.S.C. 557(B) (1988): "On appeal from or
review of the initial decision, the agency has all the powers
which it would have in making the initial decision except as it
may limit the issues on notice or by rule."
3. Letters from NRC Chairman to Secretary of Labor
and to Senator Baucus.
In response to an inquiry from the Senate Committee on
Environment and Public Works, the NRC's Chairman wrote a letter
to the committee's Chairman, Max Baucus, giving the NRC's views
"whether one-party taping of conversations by employees of NRC
licensees could constitute, in some circumstances, protected
activity under section 211 of the Energy Reorganization Act of
1974." Pursuant to Baucus' suggestion, the NRC Chairman provided
a copy of his views to the Secretary of Labor and served a copy
on the parties to this proceeding. Although I have not relied
upon the views of the NRC Chairman in reaching a decision on
Mosbaugh's complaint, the July 14, 1993 letters from the NRC
Chairman to Senator Baucus and to the Secretary of Labor are
admitted into the record in this case for whatever probative
value they may have.
4. NRC-OI Memorandum and Report of Investigation.
Mosbaugh seeks to admit into the record the December 17,
1993 NRC-OI Report of Investigation entitled "Vogtle Electric
Generating Plant: Alleged False Statements Regarding Test
Results on Emergency Diesel Generators," and a December 20, 1993
memorandum from the Director of the NRC-OI concerning that
report. The report and memorandum refer to investigation of
safety concerns that Mosbaugh brought to the NRC's attention.
Georgia Power opposes their admission.
Pursuant to a memorandum of understanding, the Department of
Labor has agreed to administer its responsibilities under the
ERA's employee protection provision with maximum cooperation and
"timely exchange of information in areas of mutual interest" with
[PAGE 6]
the NRC. Memorandum of Understanding Between NRC and Department
of Labor, Employee Protection, 47 Fed. Reg. 54585 (Dec. 3, 1982).
To that end, copies of both recommended and final decisions in
ERA cases are provided to the NRC to aid in its responsibility to
ensure the safety of nuclear power installations.
Since the memorandum and NRC-OI report were issued in 1993,
they were not readily available prior to the 1992 hearing. In
view of the NRC's responsibility concerning nuclear safety and
the unavailability of the documents prior to the close of the
hearing, I will admit into the record the December 17, 1993 NRC-
OI report and the December 20, 1993 memorandum of the NRC-OI
Director concerning that report for whatever probative value they
may have, although I have not relied upon the report and
memorandum in reaching this decision.
5. Motion to reopen the record, grant a new trial
and for other relief.
Mosbaugh sought to reopen the record to obtain the testimony
of an NRC-OI investigator Larry Robinson concerning the report
discussed above. Subsequently, Mosbaugh moved to reopen the
record, grant additional discovery, and for a new trial on the
basis of the testimony of Joseph Farley, former Executive Vice
President - Nuclear of Southern Company and Southern Company
Services, at the ASLB proceeding concerning transfer of the
license for Plant Vogtle to Southern Nuclear. Farley's testimony
purportedly reveals that Farley communicated animus against
Mosbaugh to Georgia Power president Dahlberg, who made the
decisions to suspend and discharge Mosbaugh. Georgia Power
opposes the motions.
In light of the disposition of this complaint in Mosbaugh's
favor, there is no reason to remand to the ALJ for the purpose of
reopening the record to permit Mosbaugh to conduct additional
discovery and adduce additional testimony. Accordingly, the
motions are denied.
In connection with this motion, Mosbaugh requested leave to
file a reply to Respondent's Brief in Opposition to Complainant's
Motion to Reopen the Record, etc. Georgia Power opposed the
request. In the interest of a complete record of pleadings,
Mosbaugh's motion for leave to file a reply is granted and the
reply is accepted into the record, as is Georgia Power's Brief in
Opposition to Complainant's Motion to File a Reply.
DISCUSSION
Where a respondent has introduced evidence to rebut a
prima facie case of a violation of the ERA's employee
protection provision, it is unnecessary to examine the question
of whether the complainant established a prima facie case.
See Carroll v. Bechtel Power Corp., Case No. 91-ERA-0046,
Final Dec. and Order,
[PAGE 7]
Feb. 15, 1995, slip op. at 11 and n.9, petition for review
docketed, No. 95-1729 (8th Cir. Mar. 27, 1995). "The [trier of
fact] has before it all the evidence it needs to determine
whether 'the defendant intentionally discriminated against the
plaintiff.'" USPS Bd. of Governors v. Aikens, 460 U.S.
711, 715 (1983) quoting Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Thus, the question is
whether Mosbaugh proved by a preponderance of the evidence that
Georgia Power discriminated against him for engaging in protected
activity.
There is no dispute that Mosbaugh's complaints to the NRC
about nuclear safety issues constituted protected activities
under the ERA. Also protected were his internal safety
complaints to superiors. Bechtel Const. Co. v. Secretary of
Labor, 50 F.3d 926 (11th Cir. 1995). After Mosbaugh made a
confidential complaint to the NRC he engaged in secret one-party
tape recording that was legal in the State of Georgia.[3]
Indeed, the NRC later asked Mosbaugh to make such recordings to
aid in its investigation of Mosbaugh's allegations concerning
management actions at Plant Vogtle. Georgia Power argues that
even though the tape recording was legal, its effect was so
detrimental to open communication that Mosbaugh's discharge was
appropriate.
The Secretary previously has found that "assisting the
government by . . . secret tape recording of conversations
concerning alleged illegal dumping practices" constituted
protected activity under the employee protection provision of the
Solid Waste Disposal Act, 42 U.S.C. 6971. Haney v. North
American Car Corp., Case No. 81-SDWA-1, Sec. Dec., June 30,
1982, slip op. at 4. Here, Mosbaugh's recordings clearly
supported his complaints to the NRC concerning management actions
at Plant Vogtle.
The ALJ stated that even if Mosbaugh's tape recording
constituted protected activity at the outset, its duration and
scope "became so egregious and potentially disruptive to the
workplace that it lost any protected status it may have once
possessed." R. D. and O. at 35. The ALJ opined that after the
NRC was engaged in investigating Mosbaugh's three complaints,
there was no reasonable or appropriate reason for Mosbaugh to
continue tape recording his conversations at Plant Vogtle.
Id.
The NRC, however, asked Mosbaugh to make secret recordings
during the period in which the ALJ found that Mosbaugh's taping
constituted egregious, disruptive behavior. No one discovered
that Mosbaugh made the tapes until he revealed their existence,
and therefore I question whether his behavior can be called
disruptive.
I disagree that the duration and scope of the recording
removed it from being a protected activity. I find that Mosbaugh
engaged in protected activity under the ERA by making lawful tape
[PAGE 8]
recordings that constituted evidence gathering in support of a
nuclear safety complaint. Mosbaugh's tape recording is analogous
to other evidence gathering activities that are protected under
employee protection provisions, such as making notes and taking
photographs that document environmental or safety complaints.
See, e.g., Adams v. Costal Production Operations, Inc.,
Case No. 89-ERA-3, Dec. and Order of Remand, Aug. 5, 1992, slip
op at 9 and n.4 (photographing oil spill constituted protected
activity).
Georgia Power attempts to justify the discharge on the
ground that Mosbaugh could not be an effective manager once other
employees learned of his tape recording. The company argues that
the employees would not likely engage in free and frank
communication with Mosbaugh because of fear of being taped. According to Georgia Power, open communication among employees is
critical in a nuclear plant.
I reject Georgia Power's argument for several reasons. It
was Georgia Power that revealed the existence of the tape
recordings in a general announcement to all employees and also
conducted staff meetings to discuss the taping. T. 679; RX 22.
Mosbaugh sought no publicity, kept the tapes in a locked safe,
and gave the tapes only to the NRC. Moreover, he only revealed
the tapes' existence in response to a question at a sworn
deposition taken by Georgia Power.
Further, other employees' potential unwillingness to
communicate with Mosbaugh is not dispositive. Dahlberg testified
that the company would not have fired Mosbaugh if he had made the
secret recordings at the request of the NRC.[4] T. 428. But
the chilling of open communication would be the same even if the
NRC had directed Mosbaugh's secret taping. Further, if Mosbaugh
were simply known as a whistleblower and not as a recorder of
conversations, the chilling effect would be the same. I
therefore find that other employees' potential unwillingness to
communicate with Mosbaugh was not a legitimate reason for
discharging him.
Georgia Power's president admitted that he suspended and
discharged Mosbaugh solely because of his tape recording. R. D.
and O. at 36. Therefore, the company admittedly fired Mosbaugh
for engaging in activity that was legal and in furtherance of
protected activity. Thus, Georgia Power has admitted to a
violation of the ERA employee protection provision.
I will turn now to another adverse action about which
Mosbaugh complained, his "average" interim performance rating in
August 1990. Both Bockhold and McCoy testified that Mosbaugh
needed to improve his communication skills and teamwork,
particularly in coordinating with his counterpart, the Assistant
Plant Manager for Operations, Skip Kitchens. T. 527, 640. One
of Mosbaugh's subordinates, Richard Mansfield, agreed that
[PAGE 9]
Mosbaugh was ineffective in working with other departments.
T. 845. Moreover, Mosbaugh's performance rating for 1989
similarly mentioned the goals of improving "organizational
synergy" and improving relations with Kitchens to better than
"peaceful coexistence." CX 8. Since Mosbaugh introduced no
testimony to overcome the various witnesses' assessments of his
need to improve coordination and communication with other
departments, I find that the average rating was given for
permissible reasons and did not violate the ERA.
Mosbaugh also complained about the removal of his company
car. Georgia Power explained that it provided Mosbaugh with a
car to use for company business when his position required him to
go to the plant at unusual hours. T. 566-567. McCoy testified
that the company removed the car when Mosbaugh was assigned to
SRO school because he no longer would need to go to the plant at
unusual hours. T. 567. Although Tom Greene kept his car while
attending SRO school, McCoy explained that Greene's car was part
of his compensation as a higher level employee than Mosbaugh.
Id. The record reveals that other employees with status
equal to Mosbaugh's similarly lost their company cars while
attending SRO school. Id. I find that Mosbaugh did not
overcome the evidence that removal of the car was proper under
company policy.
REMEDIES
A successful complainant under the ERA is entitled to
reinstatement and back pay. 42 U.S.C. § 5851(b)(2)(B)(ii).
Accordingly, I will order Georgia Power to reinstate Mosbaugh to
the position he occupied when he was discharged, or an equivalent
position with the same terms, conditions, and privileges of
employment.
Mosbaugh is entitled to back pay from the date of discharge
until reinstatement, less any interim earnings. Sprague v.
American Nuclear Resources, Inc., Case No. 92-ERA-37, Sec.
Dec. and Ord., Dec. 1, 1994, slip op. at 12. He also is entitled
to interest on the back pay amount, at the rate specified for
underpayment of Federal income tax. 26 U.S.C. § 6621.
Blackburn v. Metric Constructors, Inc., Case No. 86-ERA-4,
Dec. and Order on Damages, Oct. 30, 1991, slip op. at 18-19,
aff'd in relevant part and rev'd on other grounds,Blackburn v. Martin, 982 F.2d 125 (4th Cir. 1992).
Although the record reflects Mosbaugh's monthly salary at
the time of discharge, CX 55, there has been no calculation of
the exact amount of back pay owed. For example, Mosbaugh is
entitled to salary increases that reasonably would have occurred
in the five years since his discharge. Accordingly, I will
remand to the ALJ for any further proceedings he deems necessary
in this regard and for a recommended decision setting forth the
amount of back pay.
[PAGE 10]
Mosbaugh also received various employee benefits. See CX 56
and 57. He is entitled to repayment of benefits that Georgia
Power would have provided to him from the date of discharge to
reinstatement.
The ERA also authorizes compensatory damages for a
complainant's pain and suffering. 52 U.S.C. §
5851(b)(2)(b)(ii) (1988). To recover compensatory damages,
Mosbaugh had "to show that he experienced mental and emotional
distress and that the wrongful discharge caused the mental and
emotional distress." Blackburn v. Martin, 982 F.2d 125,
131 (4th Cir. 1992), citingCarey v. Piphus, 435
U.S. 247, 263-64 and n.20 (1978).
Mosbaugh testified that his professional reputation was
destroyed by the discharge and that in one and a half years
between his discharge and the hearing, he was unable to obtain
any employment despite documented efforts to find a position at
nuclear facilities that he knew were hiring. T. 322-324; see
CX 58 through 75. Mosbaugh reported that he experienced, stress,
headaches, family problems, and feeling "bad" about not finding
another position. T. 323. He testified that additional stress
occurred because he had to use the funds set aside for his
children's college education to pay his legal expenses.
Id.
The very fact of being discharged in violation of the ERA
may have a serious emotional impact on a complainant.
Blackburn, 982 F.2d at 132. Although a complainant may
support his claim of pain and suffering with the testimony of
medical and psychiatric experts, it is not required. Thomas
v. Arizona Public Service Co., Case No. 89-ERA-19, Final Dec.
and Order, Sept. 17, 1993, slip op. at 27-28; Busche v.
Burkee, 649 F.2d 509, 519 n.12 (7th Cir.), cert.
denied, 454 U.S. 897 (1981). Mosbaugh is entitled to some
compensatory damages based on the existing record, which
demonstrates his anguish over losing his job and remaining
unemployed for a lengthy time.
Mosbaugh attempted to introduce the testimony of an expert
witness, Dr. Donald Soeken. In lieu of permitting Soeken's
testimony, the ALJ accepted into the record a written offer of
proof concerning the expert's expected testimony. T. 322, 946.
Soeken, a social worker who regularly counseled whistleblowers,
interviewed Mosbaugh and Mosbaugh's wife and would have testified
to the stress and financial difficulties that the discharge
caused Mosbaugh and his family. See Soeken offer of proof
submitted to the record on March 18, 1992.
On remand, the ALJ shall permit the examination and cross-
examination of Dr. Soeken concerning stress, emotional distress, and related subjects, and shall recommend the amount of
compensatory damages to which Mosbaugh is entitled.
Mosbaugh also is entitled to payment of his attorney's fees
and costs. Since the record does not contain any statement of
[PAGE 11]
costs and attorney's fees, on remand Mosbaugh may submit a
detailed petition and Georgia Power shall be afforded the
opportunity to respond. In view of the ALJ's recommended
decision dismissing the complaint, I consider the attorney's fees
and costs associated with Mosbaugh's various requests to reopen
and supplement the record to have been reasonably incurred in
bringing the complaint, see 42 U.S.C. §
5851(b)(2)(b), even though I have denied some of the requests as
unnecessary in light of the disposition of the case.
ORDER
1. Georgia Power shall immediately offer Mosbaugh
reinstatement to the same position he occupied at the time of
discharge, or a substantially similar position, with the same
terms, conditions, and privileges of employment.
2. The case is REMANDED to the ALJ for any necessary
supplemental proceedings consistent with this decision and a
supplemental recommended decision on the amount of back pay,
benefits and compensatory damages to which Mosbaugh is entitled.
The amount of back pay and benefits owed shall be subject to
interest at the rate specified in 26 U.S.C. § 6621.
3. The ALJ shall afford Mosbaugh the opportunity to submit a
detailed petition setting forth his costs and attorney's fees,
and shall afford Georgia Power the opportunity to respond. In
the recommended supplemental decision, the ALJ shall set forth
the amount of costs and attorney's fees to which Mosbaugh is
entitled, consistent with this decision.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] Section 2902 of the Comprehensive National Energy Policy
Act of 1992, Pub. L. No. 102-86, 106 Stat. 2776, amended the ERA
for claims filed on or after the date of its enactment, October
24, 1992. See Section 2092(i) of Pub. L. No. 102-486. These
complaints were filed in 1990 and therefore the 1992 amendments
do not apply.
[2] Under any standard of review I am free to evaluate and
reject inferences drawn by the ALJ from the facts presented.
See Hedstrom Co. v. NLRB, 629 F.2d 305, 316 (3d Cir.
1980), cert. denied, 450 U.S. 996 (1981) (agency has
authority to draw its own inferences from proven facts in the
record without deference to the inferences drawn by the ALJ).
[3] Contrary to Respondents' argument (Resp. Brief at 25), I
find that Mosbaugh's lawful tape recording is not analogous to
the situation in Dartey v. Zack Co. of Chicago, Case No.
82-ERA-2, Dec. and Final Ord., Apr. 25, 1983. In that case, the
employer fired an employee who violated the company's explicit
instruction when he took confidential personnel files from the
company vault and placed them in his truck. Dartey, slip
op. at 10. The Secretary found in that case that
misappropriation of confidential company records was a lawful
reason to suspend or discharge an employee. Id. at 12.
[4] Dahlberg distinguished Mosbaugh's tape recording from the
case of a Georgia Power accountant who, at the request of the
Internal Revenue Service, secretly tape recorded conversations
related to the IRS' criminal investigation into certain Georgia
Power accounting practices. T. 469-471; see CX 84. Since
the NRC asked Mosbaugh to do the kind of tape recording that he
did on his own, however, I do not agree that there is a
significant distinction between the two situations.
