This newsletter covers materials that became available during the period from January 14, 1998 to January 29, 1998.

[N/E Digest II B 2]
SETTLEMENT; FEES ONLY OFFER AS BASIS FOR WHISTLEBLOWER COMPLAINT

In High v. Lockheed Martin Energy Systems, Inc., 97-CAA-3 (ARB Nov. 13, 1997), Complainant alleged that Respondents violated nuclear and environmental whistleblower provisions when it made a counteroffer in a settlement negotiation that in exchange for dismissal of the complaint, it would reimburse Complainant's attorney for incurred fees and expenses up to $5000. Complainant characterized the offer as an unethical attempt to bribe plaintiff lawyers, undermine client confidence, and elicit whistleblowers to give up their rights to compensatory damages in nuclear and environmental whistleblower cases.

A motion to dismiss for failure to state a cause of action was filed, and the ALJ recommended dismissal in part on this ground. The ARB observed that Fed. R. Civ. P. 12(b)(6) is referenced for the standard for considering a motion for failure to state a claim, and that in such a situation all reasonable inferences are made in favor of the non-moving party.

The ARB then found that the factual allegations of Complainant's complaint, if considered true, would be that DOE lawyers encouraged and gave permission to lawyers for one of the other Respondents to offer to Complainant and other, unnamed whistleblowers, a settlement under which the complainants' attorneys would receive payment of legal fees and the whistleblowers themselves would not receive any other relief available under the whistleblower provisions. The ARB found that the remainder of Complainant's complaint were legal conclusions.

The ARB concluded that the complaint failed to contain either a direct or an inferential allegation concerning a material element of a whistleblower complaint -- i.e., that Respondents discriminated against Complainant with respect to the compensation, terms, or privileges of employment. The ARB distinguished Delcore v. W.J. Barney Corp., 89-ERA-38 (Se'cy Apr. 19, 1995), aff'd sub nom. Connecticut Light & Power Co. v. Secretary of Labor, 85 F.3d 89 (2d Cir. 1996), on the ground that in the instant case there was no allegation of a settlement term that would curtail Complainant's rights under the whistleblower provisions such that Respondents discriminated against him with respect to the compensation, terms, conditions, or privileges of employment. In Delcore, the settlement offer included an improper "gag" provision.

[N/E Digest VII B 1]
SUBPOENA POWER; DOL DOES NOT HAVE SUBPOENA POWER UNDER THE SWDA OR THE FWPCA

In Oliver v. Hydro-Vac Services, Inc., 91-SWD-1 (ARB Jan. 6, 1998), both Complainant and Respondent filed exceptions to the ALJ's refusal to issue third party subpoenas. The ARB denied the exceptions, stating that "[i]t is well established that an agency has no authority to issue subpoenas absent explicit statutory authority." Slip op. at 2 (citations omitted).

The ARB noted that an ALJ has authority to compel testimony and production of documents from witnesses in control of the parties under 29 C.F.R. § 18.29(a)(3), and by making appropriate adverse findings for failure of a party to comply. See Fed. R. Civ. Pro. 37(b)(2)(A), (B) and (C).

The ARB found that the ALJ acted within his discretion in admitting certain documents objected to by Respondent and according them appropriate weight in light of the lack of an opportunity for cross-examination. 29 C.F.R. § 24.5(e).

[N/E Digest VII D 6]
CONFIDENTIAL INFORMATION IN BRIEF

In Thompson v. Houston Lighting & Power Co., 96-ERA-34 and 38 (ALJ Jan. 8, 1998), the ALJ permitted the parties to submit briefs for the record that were redacted in regard to confidential medical information.

[N/E Digest VII D 6]
FOIA; RELATIONSHIP TO ALJ'S ORDER SEALING RECORD

In Macktal v. Brown & Root, Inc., 86-ERA-23 (ARB Jan. 6, 1998), Complainant alleged bias because the ALJ refused to sign an order sealing certain documents that shed adverse information about Complainant. The ARB observed that the documents, in fact, were never received into evidence and were not included in the court reporter's looseleaf binder of respondent's exhibits (the documents, however, were placed in a folder marked "Rejected Exhibits"). The ARB also observed that even if the documents had been included in the record and had been placed under "seal" by the ALJ, whether they would be available to the public would be determined by the FOIA and applicable FOIA regulations. See 29 C.F.R. Part 70.

[N/E Digest VIII A 5]
ALLEGED BIAS OF ALJ; ALJ'S REVIEW OF EVIDENCE PROFFERED BY RESPONDENT PUTTING COMPLAINANT IN UNFAVORABLE LIGHT

In Macktal v. Brown & Root, Inc., 86-ERA-23 (ARB Jan. 6, 1998), Complainant alleged that the ALJ was biased because, inter alia, he may have looked at some of Respondent's exhibits (which revealed adverse information about Complainant) before they were actually introduced into evidence. The documents were offered by Respondent to show that Complainant would have been fired anyway. The ARB, however, held that the ALJ had to review the material to exercise his discretion whether to admit it. In fact, the ALJ sustained Complainant's counsel's objections, and the documents were not included in the record. The ARB found no evidence that review of the material influenced the ALJ's findings.

Complainant also alleged bias because the ALJ refused to sign an order sealing the documents. The ARB observed that the documents, in fact, were never received into evidence and were not included in the court reporter's looseleaf binder of respondent's exhibits (the documents, however, were placed in a folder marked "Rejected Exhibits"). The ARB also observed that even if the documents had been included in the record and had been placed under "seal" by the ALJ, whether they would be available to the public would be determined by the FOIA and applicable FOIA regulations. See 29 C.F.R. Part 70.

[N/E Digest VIII A 5]
ALLEGED BIAS OF ALJ; QUESTIONING OF WITNESSES

In Macktal v. Brown & Root, Inc., 86-ERA-23 (ARB Jan. 6, 1998), Complainant alleged that the ALJ was biased because, inter alia, he excessively questioned witnesses and assisted Respondent's counsel. The ARB noted that an ALJ, "of course," has the authority to question witnesses directly, 29 C.F.R. § 18.614(b), and found that the ALJ did not abuse that authority nor improperly assist Respondent's counsel.

[N/E Digest XII B 1 d ii]
INTERNAL COMPLAINTS; PRE-1992 COMPLAINT ARISING IN FIFTH CIRCUIT; COMPLAINANT'S THREAT TO GO TO GOVERNMENT OFFICIALS; REFUSAL TO WORK

The ARB will follow the decision of Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984), in an ERA case, where the case arose in the Fifth Circuit prior to the 1992 amendments to the ERA that provided explicit protection for internal safety or health complaints. Brown & Root states a minority opinion that the ERA (prior to the 1992 amendments) did not protect internal complaints. See Macktal v. Brown & Root, Inc., 86-ERA-23 (ARB Jan. 6, 1998).

In Macktal, the ALJ concluded that Complainant engaged in protected activity under Brown & Root, because he indicated on his last day of employment that he would file complaints with government agencies, including the NRC. The ARB concluded that Brown & Root did not even permit these kinds of actions by a Complainant, even though the pre-1992 ERA protected an employee who is about to commence a proceeding.

Complainant also alleged that his request to be relieved of his duties was protected activity; the ARB, however, found that refusal to work is simply an internal complaint subcategory.

[N/E Digest XII D 10]
PROTECTED ACTIVITY; REFUSAL TO WORK; RESPONDENT IS NOT REQUIRED TO READ COMPLAINANT'S MIND

In Macktal v. Brown & Root, Inc., 86-ERA-23 (ARB Jan. 6, 1998), Complainant alleged that his request to be relieved of his duties is protected activity under Pensyl v. Catalytic, Inc., 83-ERA-2 (Sec'y Jan. 13, 1984). The ARB, however, found that "[i]t would have required considerable mental gymnastics on the part of [Respondent's] managers to recognize that, when [Complainant] said he wanted to be relieved of his duties, he really meant he wanted to be reassigned to work that did not require him to violate NRC procedures." Slip op. at 5. The ARB stated that it agreed with the ALJ that "a reasonable person could only interpret [Complainant's] request as a resignation and could not be held responsible for failure to intuit what [Complainant] now claims was on his mind." Slip op. at 5-6.

[N/E Digest XVI C 2 b ii]
BACK PAY LIABILITY; TERMINATION ON DATE EMPLOYMENT WOULD HAVE ENDED FOR REASONS INDEPENDENT OF VIOLATION

Under both the ERA and the environmental whistleblower provisions, the period of an employer's liability for back pay ends when the employee's employment would have been terminated for reasons independent of the violation found. See Oliver v. Hydro-Vac Services, Inc., 91-SWD-1 (ARB Jan. 6, 1998).

[N/E Digest XVI E 1]
ATTORNEY FEE REQUEST; LENGTHY DELAY

In Macktal v. Brown & Root, Inc., 86-ERA-23 (ARB Jan. 6, 1998), Complainant filed a request for attorney's fees for his successful litigation of an issue relating to an illegal term in a settlement agreement. The request was delayed by eight years.

The ARB noted reservations about entertaining the request after such a lengthy delay, but cited some district court decisions indicating that such motions are not barred by the mere passage of time, and found that its reservations were overcome "by the expansive language of the ERA regarding the recovery of attorney's fees and the resulting incentive to pursue environmental whistleblower claims." Slip op. at 6 n.8.

[N/E Digest XVII G 1]
ATTORNEY FEES FOR SUCCESS ON ILLEGAL SETTLEMENT TERMS

In Macktal v. Brown & Root, Inc., 86-ERA-23 (ARB Jan. 6, 1998), the matter had been settled at a much earlier stage in the litigation. Certain terms of the settlement were found illegal by the Secretary. The matter eventually reached the ARB on the merits, which found that the complaint must be dismissed because Complainant only stated internal complaints for his pre-1992 ERA amendment complaint in the Fifth Circuit. Complainant, however, now requested attorney's fees for his successful litigation of the illegal settlement terms. Noting the similarity of the settlement terms ruling in the instant case with Connecticut Light& Power Co. v. Secretary of Labor, 85-F.3d 89 (2d Cir. 1996), the ARB concluded that such fees should be awarded.

[STAA Digest IV B 2 d]
RETALIATORY ANIMUS; SENDING COMPLAINANT FOR PSYCHOLOGICAL EVALUATION

In Griffin v. Consolidated Freightways Corp. of Delaware, 97-STA-10 and 19 (ARB Jan. 20, 1998), Respondent became concerned about Complainant's fitness for duty based on statements made by Complainant in a letter to an ALJ presiding over a different STAA complaint and in deposition statements. Respondent referred the letter to a psychiatrist, who concluded that Complainant might have a delusional disorder and potential for dangerous behavior during employment activities. Respondent then arranged for a certified forensic psychologist who specializes in assessing threats posed by employees to evaluate Complainant. The psychologist concluded that Complainant had a delusional disorder, paranoid type, and recommended that Respondent find Complainant temporarily unfit for driving pending mandatory psychological treatment. Respondent then put Complainant on paid medical leave, and offered to pick up certain costs not covered under the health benefits plan if Complainant would arrange an appointment with a recommended psychiatrist. Complainant did not seek psychiatric help, and Respondent placed Complainant on medical leave without pay. Later, Respondent notified a subsequent employer about the reason Complainant was on leave. Complainant then filed the instant complaint alleging that because of earlier safety complaints and his pending STAA complaint, Respondent removed him from driving service, discharged him and blacklisted him.

The ARB focused on whether retaliatory animus motivated Respondent. The ARB found that a DOT regulation, 49 C.F.R. § 391.41(b), provides a regulatory basis for an employer to examine a truck driver's psychological fitness to drive, and, if justified, to remove the driver from service. The ARB then noted that in some contexts, an employer's direction of a psychological evaluation of fitness to work may be based on retaliatory animus for protected activity, citing as examples, Robainas v. Florida Power & Light Co., 92-ERA-10 (Sec'y Jan. 19, 1996), and Robainas v. Florida Power & Light Co. (Robainas II), 92-ERA-10 (Sec'y Apr. 15, 1996)(order denying reconsideration). On the other hand, in other contexts, a referral for psychological evaluation may be warranted, as where Complainant exhibits aberrant behavior. Citing Mandreger v. Detroit Edison Co., 88-ERA-17 (Sec'y Mar. 30, 1994), and Robainas II, slip op. at 4. The ARB then stated that Robainas and Mandreger show that the evidence is examined "in each case carefully to determine if the employer observed unusual or threatening behavior prior to referring an employee for psychological evaluation of fitness for duty." Slip op. at 7. The ARB found that such observations in the instant case justified Respondent's actions. In a footnote, the ARB held that on the facts of the instant case, Respondent's letter to the subsequent employer informing it of the reason for Complainant's medical leave, was not an adverse action under the STAA, and that Respondent did not have a discriminatory motive in providing the information. Slip op. at 6 n.8.

[STAA Digest IV B 2 e]
LEGITIMATE GROUNDS FOR ADVERSE ACTION; EMPLOYEE'S WASTING TIME

In Frechin v. Yellow Freight Systems, Inc., 96-STA-34 (ARB Jan. 13, 1998), Respondent articulated the legitimate, nondiscriminatory ground for discharging Complainant that Complainant wasted company time (specifically, taking excessive time to depart from the terminal). Although Complainant presented evidence tending to show that this reason was prextexual, the ARB agreed with the ALJ's conclusion that such evidence was not convincing.

[STAA Digest IV B 2 e]
LEGITIMATE GROUNDS FOR ADVERSE ACTION; FAILURE OF COMPLAINANT TO EXERCISE EMPLOYMENT OPTION FOLLOWING CLOSING OF TERMINAL

In Leidigh v. Freightway Corp., 87-STA-12 (ARB Dec. 18, 1997), Respondent lost a contract, and decided to close the terminal from which Complainant was taking dispatches. Respondent gave drivers several employment options, including exercising seniority rights and transferring to a different terminal, becoming an owner-operator, retiring, or seeking employment elsewhere. Complainant missed several deadlines for stating which option he would exercise, and Respondent actually informed Complainant that it considered his employment to be terminated because he had not made himself available for dispatch at a new terminal. Complainant failed to establish that retaliatory animus motivated this adverse action, and his complaint was dismissed.

[STAA Digest IV C 2 b]
PRETEXT; LACK OF WRITTEN POLICY

In Frechin v. Yellow Freight Systems, Inc., 96-STA-34 (ARB Jan. 13, 1998), Respondent articulated the legitimate, nondiscriminatory ground for discharging Complainant that Complainant wasted company time -- specifically, taking excessive time to depart from the terminal. Complainant contended that this ground was pretextual, inter alia, because Respondent did not have a written policy requiring drivers to leave the terminal within 15 minutes of receiving their manifests. The ARB found that the fact that the policy was not written did not negate its existence, pointing out evidence establishing that Complainant and other drivers were aware of the policy.

[STAA Digest V A 3 a]
FEDERAL MOTOR SAFETY VIOLATION; COVERAGE OF EMPLOYEE WHO CAUSES ILLEGALITY TO BE CORRECTED

In Beveridge v. Waste Stream Environmental, Inc., 97-STA-15 (ARB Dec. 23, 1997), the ARB rejected the ALJ's conclusion that there is a distinction under the statutory provision covering a "federal motor safety violation" -- 49 U.S.C. § 31105(a)(1)(B)(i) -- between the inaction of an employee, which would be covered, and the action of an employee, which would not be covered. The ARB found that this reasoning would result in a refusal to drive an overweight vehicle not being covered if the load was reduced by the employee to a legally acceptable level and then delivered. The ARB held that "[a]n employee who refuses to drive illegally does not lose his STAA protection by correcting the illegality and then proceeding to drive." Slip op. at 3.

[STAA Digest V A 3 a]
FEDERAL MOTOR SAFETY VIOLATION; REFERENCE TO LAWS OF LOCAL JURISDICTION

The statutory provision covering a "federal motor safety violation" -- 49 U.S.C. § 31105(a)(1)(B)(i) -- incorporates the laws of the jurisdiction in which the vehicle is being operated. See 49 C.F.R. § 392.2. Beveridge v. Waste Stream Environmental, Inc., 97-STA-15 (ARB Dec. 23, 1997) (Complainant shortloaded his vehicle because he did not accept Employer's explanation that it had contacted the pertinent state agency and been told that it could continue to operate its vehicle because; that overweight registrations had not been sent out because of administrative backlogs; Complainant believed he needed physical possession of sticker to operate an overweight vehicle; ARB found that under state law, the registration need not be carried, but merely available).

[STAA Digest V A 3 e]
FEDERAL MOTOR SAFETY VIOLATION; COVERAGE DEPENDS ON PROOF OF ACTUAL VIOLATION -- MERE GOOD FAITH BELIEF IS NOT ENOUGH

Under the statutory provision covering a "federal motor safety violation" -- 49 U.S.C. § 31105(a)(1)(B)(i) -- the complainant must show that the operation of a vehicle would have been a genuine violation of a federal safety regulation at the time he or she refused to drive -- a mere good-faith belief in a violation does not suffice. Beveridge v. Waste Stream Environmental, Inc., 97-STA-15 (ARB Dec. 23, 1997).

[STAA Digest X A 3]
SETTLEMENTS IN STAA PROCEEDINGS; ALJ'S ORDER IS FINAL IF SETTLEMENT REACHED IN ADJUDICATORY STAGE

Pursuant to 29 C.F.R. § 1978.111(d)(2), an ALJ has the authority to approve a settlement under the STAA at the adjudicatory stage of the proceeding. Accordingly, an ALJ's order approving such a settlement is the final departmental action on the case. Ass't Sec'y & Ely v. Air Ride, Inc., 97-STA-24 (ARB Jan. 14, 1998); Hahn v. New Directions Tours, 97-STA-26 (ARB Jan. 14, 1998); Dinkins v. Bull Market, Inc., 97-STA-34 (ARB Jan. 14, 1998).