Amended section 24.7(c)(2) provides that upon issuing a recommended order finding a violation in an ERA case, the ALJ shall also issue a preliminary order providing all the relief specified in paragraph (c)(1) of this section [i.e., affirmative relief, such as reinstatement and back pay] with the exception of compensatory damages. This preliminary order shall constitute the preliminary order of the Secretary and shall be effective immediately.

Issuance of preliminary orders upon an ALJ recommended order finding a violation of the ERA whistleblower provision is not new, but up to now, the ARB has handled issuance of the preliminary order. It will now be the ALJ's responsibility. The following ARB orders, which are found on the OALJ Web Site, illustrate how the ARB has implemented the preliminary order requirement:

• Boschuk v. J & L Testing, Inc., 96-ERA-16 (ARB Jan. 14, 1997), illustrates a standard preliminary order.

• Smith v. Esicorp, Inc., 93-ERA-16 (ARB Apr. 3, 1997), illustrates the ARB's refusal to issue a preliminary order for a pre-1992 amendments case.

• Varnadore v. Oak Ridge National Laboratory, 94-CAA-2 and 3 (ARB Sept. 6, 1996), illustrates the ARB's holding that the preliminary order should include attorney's fees, and the ARB's order to the attorney to repay the fees once the ARB revised the ALJ's holding in favor of the complainant.

• Van Der Meer v. Western Kentucky University, 95-ERA-38 (ARB Apr. 8, 1997), illustrates the ARB's preliminary order requiring Respondent to comply with the ALJ's order to expunge and post the Recommended Decision -- but declining to require Respondent to release the ALJ's decision to the press.

New 29 C.F.R. § 28.7(d) provides that "[t]he recommended decision of the administrative law judge shall become the final order of the Secretary unless, pursuant to § 24.8, a petition for review is timely filed with the Administrative Review Board."

Under traditional administrative practice, such an ALJ decision would normally be titled an "initial" decision, but the regulations still refer to "recommended" ALJ decisions. See 2 Am Jur 2d, Administrative Law § 365 (1994) (ALJ's decision is "initial" where it can become final if no appeal is taken; ALJ's decision is "recommended" where it is automatically reviewed by agency decision maker).

The probable major implication of the requirement that parties petition for review is that settlements are unlikely to be reviewed by the ARB. This places increased importance on the ALJ to ensure that the agreement is "fair, adequate and reasonable." See generally Ruud v. Westinghouse Hanford Co., 88-ERA-33 (ARB Nov. 10, 1997)(decision reiterating responsibility of Secretary of Labor to review settlements). The OALJ Web Site contains guidance on review of settlements at the Nuclear and Environment Digest at XVII, and the memoranda entitled "When Submission to DOL Is Required & When ALJ's Decision Is Final or Recommended" and "Disclosure of Dollar Amount of Payments and Attorneys' Fees; Possible Side Agreements.".

The regulatory amendments also provide at section 24.6(f)(1), that the Assistant Secretary has the discretion, at any time in the proceeding to participate as a party or amicus curiae. This provision includes the right to petition for review of an ALJ's recommended decision, "based on a settlement agreement between complainant and respondent, to dismiss a complaint or to issue an order encompassing the terms of the settlement." Thus, it may be appropriate for the ALJ to notify the Solicitor representing the Assistant Secretary of the existence of any settlement proffered by the complainant and respondent, and provide an opportunity for the Assistant Secretary to voice any reservations about the agreement prior to issuing a recommended decision approving or rejecting such settlement.

[N/E Digest II B 1 b]
AMENDMENT/SUPPLEMENTATION OF COMPLAINT TO CONFORM TO THE EVIDENCE AND TO RAISE UNPLEADED ISSUES

In Ruud v. Westinghouse Hanford Co., 88-ERA-33 (ARB Nov. 10, 1997), Complainant originally filed a complaint about protected activity and retaliation occurring between 1986 and 1988. Complainant and Respondent negotiated a settlement agreement, but refused to submit the agreement to the ALJ or the Secretary for review, and the Secretary remanded the matter for a hearing. The parties then revealed the terms of the settlement to the ALJ. Complainant then took the position that the settlement was void for a number of reasons, including breach of the agreement in 1990 and 1991 based on harassment, blacklisting and constructive discharge.

The ARB rejected the settlement agreement based on the breach of the agreement. The ALJ had alternatively recommended a finding of liability on the part of Respondent for the 1990-1991 conduct. On review, Respondent argued that this finding was unfair because the evidence establishing violation purportedly was introduced solely for purposes of showing misrepresentation in reaching the 1988 settlement agreement. The ARB found that the introduction of the evidence relating to the 1990-1991 conduct was not so limited. The ARB found that the ALJ, by overruling Respondent's relevancy objection and denying its motion to strike when this evidence was introduced, essentially (and appropriately) amended the complaint to conform to the supplemental evidence. The ARB stated that Respondent should have been aware of this issue and defended against it, but in an abundance of caution, remanded the case to the ALJ to give Respondent an additional opportunity to defend against the evidence relating to the 1990-1991 conduct.

The decision contains several paragraphs of discussion about Fed. R. Civ. P. 15(b) and (d), and the mechanism for amendment or supplementation of the complaint to conform to the evidence.

[N/E Digest XI D 3 d]
DUAL MOTIVE ANALYSIS; COMPLAINANT INSTIGATED A BRAWL

In Combs v. Lambda Link, 95-CAA-18 (ARB Oct. 17, 1997), the ARB applied dual motive analysis where Complainant had communicated concerns about asbestos exposure to Respondent's CEO prior to Complainant's discharge, but found "it beyond question that [Complainant's] activity in instigating or provoking [a] brawl which resulted in his being injured superseded his protected activity and provided ample independent grounds for his discharge."

Compare Abraham v. Lawnwood Regional Medical Center, 96-ERA-13 (ARB Nov. 25, 1997), where Complainant was discharged for his excessive response to an poorly timed interruption by his supervisor; the ARB held that the complaint did not present a dual motive case because Complainant had not proved by a preponderance of the evidence that his termination from employment was partially motivated by protected activities.

[N/E Digest XI B 2 b iv]
LEGITIMATE NON-DISCRIMINATORY GROUNDS FOR DISCHARGE; DISCHARGE UNREASONABLE OR ERRONEOUS FOR OTHER REASONS

Even assuming that a complainant's confrontation with a supervisor was a protected internal complaint because the supervisor's actions might have affected quality or safety matters, the ARB in Abraham v. Lawnwood Regional Medical Center, 96-ERA-13 (ARB Nov. 25, 1997), held that Respondent was still free to discharge Complainant for his misbehavior towards the supervisor. The ARB held that "[a]n employee's insubordination towards supervisors and coworkers, even when engaged in protected activity, may be justification for termination." Abraham, 96-ERA-13 @ 4-5 (citations omitted).

Complainant in Abraham also argued that Respondent's decision to discharge him was improper because of the supervisors inappropriate choice of Complainant's work station for the confrontation, her alleged fabrications of the incident, and Respondent's faulty investigation of her charges. The ARB observed that resolution of these matters in Complainant's favor would not establish by a preponderance of the evidence that he was discharged for protected activities, but only that his discharge was unreasonable or flawed as a matter of sound management practice. The ARB agreed with the ALJ's explanation that DOL's jurisdiction over an ERA whistleblower complaint is limited to determining whether the complainant's discharge was based on his protected activities not whether his discharge was unreasonable or erroneous for other reasons. See also Kahn v. U.S. Secretary of Labor, 64 F.3d 271, 280-81 (7th Cir. 1995).

[N/E Digest XII B 2 g]
COVERAGE

In Ruud v. Westinghouse Hanford Co., 88-ERA-33 (ARB Nov. 10, 1997), the ALJ had found violations of the employee protection provisions of the CAA and the CERCLA, but declined to find coverage under the SDWA which, unlike the CAA and CERCLA, provides for awards of exemplary damages. The ARB disagreed with the rejection of the SDWA complaint because the record established that Complainant had "discussed leakage of nuclear waste into groundwater and the Columbia River during hearings convened by a subcommittee of the United States Congress and during meetings with congressional staff and consultants", and because leakage and unauthorized disposal formed a basis for Complainant's "burial ground audit." The ARB concluded that by compiling and providing information about such contamination, Complainant participated or assisted in a proceeding or other action to promote safe drinking water. Citing, by comparison, Stone & Webster Engineering Corp. v. Herman, 1997 U.S. App. LEXIS 16225, at *22 (11th Cir. July 2, 1997) (discussion about nuclear safety compliance during meeting with co-workers constituted an action to carry out purposes of the ERA; employee was protected where "expression has a public dimension and fits closely into an extended pattern of otherwise protected activity").

[N/E Digest XII D 1 b]
PROTECTED ACTIVITY; TYPES OF ACTS PROTECTED MUST IMPLICATE SAFETY DEFINITELY AND SPECIFICALLY

In American Nuclear Resources, Inc. v. U.S. Dept. of Labor, No. 96-3825, 1998 WL 29862 (6th Cir. Jan. 29, 1998) (case below 92-ERA-37), the Sixth Circuit discussed the preliminary requirement that a complainant establish that the ERA protected his or her conduct. The court wrote:

    [A] court first must determine whether the ERA protects the employee's acts. Building on the Act's language, courts have held that the ERA protects many types of acts that implicate safety. For example, the ERA protects an employee who files internal reports concerning regulatory violations. . . .

    Despite this generally broad reading, courts limit the ERA to protect only certain types of acts. To constitute a protected safety report, an employee's acts must implicate safety definitively and specifically. . . .

    The ERA does not protect every incidental inquiry or superficial suggestion that somehow, in some way, may possibly implicate a safety concern. . . .

    Moreover, an employer may terminate an employee who behaves inappropriately, even if that behavior relates to a legitimate safety concern. . . .

Slip op. at __ (citations omitted).

In American Nuclear Resources, Inc., some Radiation Protection employees (RPs) sprayed the reactor cavity's walls to prevent airborne radiation, but delay evidently resulted in particles contaminating Complainant; Complainant then complained to his supervisor about "the stupid RP's not knowing what they were doing," even though the RPs did not work for Respondent. The next day, Complainant underwent a "full body count" to measure his radiation level; after the test, Complainant requested a copy of the body count but the RPs instead gave him an exposure report that contained the same information. There was conflicting testimony regarding whether Complainant had lost his temper during these incidents. Later on the day of the test and less than two weeks after Complainant had started work for Respondent the decision was made to discharge Complainant. The ALJ and the Secretary of Labor ruled that Respondent terminated Complainant because he questioned the RPs about safety, and, therefore violated the ERA. The Sixth Circuit reversed the DOL ruling. The court found that:

    [Complainant] Sprague's conduct falls outside the scope of ERA protection. His conduct lacks a sufficient nexus to safety concerns. Sprague did the following things that possibly implicate safety: he complained about "the stupid RP's not knowing what they were doing" after they waited too long to spray; he grew angry at the RPs while they administered his full body count test; and, after the test, he asked the RPs for a copy of the body count, even though he received a more understandable exposure report.

    Sprague, however, never alleged that ANR was violating nuclear laws or regulations. He never alleged that ANR was ignoring safety procedures or assuming unacceptable risks. He simply asked for a document, one that he had no right to receive and one that contained little useful information. ... While Sprague's complaints resulted in one set of additional body counts on the RPs, those tests ultimately revealed no safety problem or health hazard. Sprague's conduct never led anyone to change, probe, or even question ANR's safety procedures.

    In cases where courts protected the employee's acts, the employee typically alleged a safety concern that was both concrete and continuing. ... Sprague complained about an isolated incident involving a wall spraying, not a procedural hazard. A single act or inquiry may, of course, fall under the ERA's scope, but that act must bear a closer nexus to safety than Sprague's conduct.

Slip op. at __ (citations omitted).

[N/E Digest XII D 1 b]
ATTRIBUTABLE SAFETY VIOLATION

In American Nuclear Resources, Inc. v. U.S. Dept. of Labor, No. 96-3825, 1998 WL 29862 (6th Cir. Jan. 29, 1998) (case below 92-ERA-37), the court held that, even assuming that Complainant's internal safety complaint was protected activity under the ERA, Respondent did not retaliate for such actions where Complainant's supervisor testified that she fired Complainant because of his interpersonal problems, Complainant had complained primarily about the incompetence of workers who were not employed by Respondent and whose errors could not be attributed to Respondent, and therefore, Complainant's complaints alleged no safety breach by Respondent. Thus, the record did not indicate that Complainant's conduct could have forced Respondent to change its procedures or incur extra costs, and the court concluded that "[a]n employer would hardly retaliate over such an insignificant sleight."

[N/E Digest XIII B 18]
SETTLEMENTS; TOUGH NEGOTIATING AS EVIDENCE OF RETALIATION

In Ruud v. Westinghouse Hanford Co., 88-ERA-33 (ARB Nov. 10, 1997), the ALJ had rejected Complainant's argument that Respondent failed to deal in good faith when negotiating the settlement, concluding that"tough negotiating does not equal bad faith retaliation". The ARB "disagree[d] to the extent that [Respondent] premised negotiations on [an] unlawful "gag" provision which violated public policy and constituted adverse action." Ruud, 88-ERA-33 @ 16 (citation omitted).

[N/E Digest XIII B 18]
ADVERSE EMPLOYMENT ACTION; BREACH OF SETTLEMENT AGREEMENT

Breach of a settlement agreement can constitute a violation of the nuclear and environmental whistleblower statutes. Ruud v. Westinghouse Hanford Co., 88-ERA-33 (ARB Nov. 10, 1997), citing Gillilan v. Tennessee Valley Authority, 91-ERA-31/34, slip op. at 9 (Sec'y Aug. 28, 1995); Blanch v. Northeast Nuclear Energy Co., 90-ERA-11, slip op. at 4 (Sec'y May 11, 1994); O'Sullivan v. Northeast Nuclear Energy Co., 90-ERA-35, slip op. at 3 (Sec'y Dec. 10, 1990).

[N/E Digest XIV B 1]
EMPLOYERS; CORPORATE SUBSIDIARIES

In Ruud v. Westinghouse Hanford Co., 88-ERA-33 (ARB Nov. 10, 1997), the ARB adopted the ALJ's finding that the corporate connection between two subsidiaries of Westinghouse Electric Corporation (the Hanford reservation and the Savannah River facility) had sufficiently close connections to attribute the actions of one to the other for purposes of whistleblower protection. The factors considered included that, although the companies maintained separate employment benefit plans, employees transferred from one company to another without termination of employment and application for reemployment; both subsidiaries' stock option plans provided for purchase of Westinghouse Electric Corporation stock through the subsidiaries; the subsidiaries shared employees on task team assignments; management employees moved from subsidiary to subsidiary during their careers.

[N/E Digest XVI E 3 g]
FEDERAL EXPRESS CHARGES ARE RECOVERABLE AS COSTS

Specific delivery charges incurred in a whistleblower case are recoverable by the complainant as costs. Ishmael v. Calibur Systems, Inc., 96-SWD-2 (ARB Oct. 17, 1997) (Federal Express charges improperly deducted by ALJ as overhead expenses).

[N/E Digest XVI E 4 a]
ATTORNEY'S FEE AWARD MAY INCLUDE PERIOD PRIOR TO HEARING PHASE

In Ishmael v. Calibur Systems, Inc., 96-SWD-2 (ARB Oct. 17, 1997), the ALJ concluded that the fees and rates indicated in Complainant's fee petition were reasonable but that any work performed before the date the case was docketed before the Office of Administrative Law Judges was not compensable. The ARB disagreed, holding that costs and expenses incurred in connection with the bringing of a complaint include work performed prior to the hearing phase of a whistleblower action.

[N/E Digest XVII B 1 a]
GAG PROVISION; EFFECT OF "SUBPOENA" EXCEPTION

A settlement term providing that --

Complainant agrees not to make further additional remarks or comments, either verbally or in writing, concerning his employment at Respondent or concerning the safety of operations at Respondent to anyone, provided that if Complainant is subpoenaed by a court, administrative body, or congressional committee or subcommittee or similar entity under force of law, then the parties agree that Complainant may testify regarding his employment at Respondent or concerning the safety of operations at Respondent

is not saved from being a unlawful gag provision by the exception permitting Complainant to respond to a lawful subpoena because not all regulatory agencies possess the authority to issue subpoenas. Ruud v. Westinghouse Hanford Co., 88-ERA-33 @ n12 (ARB Nov. 10, 1997).

[N/E Digest XVII E 2]
SETTLEMENT JUDGE PROCEEDINGS; APPLICABILITY OF FOIA

A matter that was unclear under the settlement judge regulation at 29 C.F.R. § 18.9(e), was whether papers created by, or received by and retained by, an OALJ settlement judge are subject to the Freedom of Information Act. The answer appears to lie in the Administrative Dispute Resolution Act, 5 U.S.C. §§ 571-584. In 1996, Congress reenacted the Administrative Dispute Resolution Act of 1990 (the original act had a 1995 sunset date). The 1996 reenactment deals directly with the issue of the application of FOIA to a federal government neutral, to wit: "A dispute resolution communication which is between a neutral and a party and which may not be disclosed under this section shall also be exempt from disclosure under section 552(b)(3)." 5 U.S.C. § 574(j). Section 552(b)(3) is FOIA exemption 3, which exempts matters "specifically exempted from disclosure by statute."

[N/E Digest XVII F]
SETTLEMENT; DISAPPROVAL WHERE MATERIAL BREACH OCCURRED PRIOR TO CONSIDERATION BY ARB; DISAPPROVAL WHERE LACK OF ASSENT TO MATERIAL TERM

In Ruud v. Westinghouse Hanford Co., 88-ERA-33 (ARB Nov. 10, 1997), the ARB reiterated the law concerning settlements of whistleblower complaints where the underlying statute contains language indicating that the Secretary must consent to any settlement negotiated by the other parties the Secretary's role being to protect the public interest as well as that of complainant employees. The Secretary's approval (i.e., the ARB's approval) of the settlement demonstrates consent to the settlement agreement. The ARB noted that the consent of the other parties is determined at the time of the initial negotiated consent rather than at the time of the Secretary's approval.

Complainant contended that Respondent's "duress or coercion" -- essentially that he settled because of Respondent's threat to fight him to the end, and that Respondent misrepresented its intent not to interfere with Complainant's prospective employment -- rendered the agreement voidable. The ARB considered and rejected these contentions. The ARB found that Complainant, who was represented by counsel, had alternatives to settling the case, and that at the time of settlement, there was no evidence that there was a misrepresentation as to the non-interference provision or that managers intended to renege on the deal.

The ARB, however, found that evidence showing that Respondent in fact breached the agreement by interfering with Complainant's prospective employment provided independent grounds for rejecting the settlement. The ARB stated that "[w]e decline to 'enter into' a settlement when evidence shows that a material term has been breached. We are charged with "protect[ing] the interests of the public and the complainant." Macktal v. Secretary of Labor, 923 F.2d at 1156 and n.30 (Congress sought to 'guarantee by statute that the employee's interests not be compromised [by settlement]'). Approval of a breached agreement would not ensure this protection. ... The settlement, as effectuated, thus was not fair, adequate and reasonable because it did not afford Ruud the benefit of a material term. We consequently decline to approve it." Ruud, 88-ERA-33 @ 14-15.

Alternatively, the ARB found that the parties did not agree on a material term of the settlement and therefore did not reach agreement, because Respondent possibly read the provision solely to refer to the content of personnel documents and references, whereas Complainant read it -- reasonably according to the ARB -- to prohibit Respondent from interfering in any manner with prospective employment. The ARB found that such a lack of necessary assent is grounds for disapproval.

[STAA Digest III G]
EVIDENCE; EXISTENCE OF FREQUENT SAFETY REPORTS BY COMPLAINANT DOES NOT ESTABLISH, BY ITSELF, RETALIATORY INTENT

In Griffin v. Consolidated Freightways Corp. of Delaware, 96-STA-8 (ARB Feb. 3, 1998), Complainant asserted that Respondent engaged in a pattern of harassment against him for making an internal complaint and filing a union grievance involving the safety of a tractor. Complainant asserted that this harassment consisted of 38 incidents involving the intentional assignment of unsafe equipment to him. The ARB agreed with the ALJ that the nature of Respondent's business necessitated that it rely on drivers to notify it of safety issues relating to equipment; the documents submitted by Complainant simply did not establish that his experience was any different from other drivers or that the frequency of his safety reports was any greater than that prior to the protected activity. In fact, the record indicated that Respondent was responsive, taking prompt action to ensure that equipment was in compliance with federal safety regulations.

[STAA Digest V B 2 a iv]
REFUSAL TO DRIVE BASED ON FATIGUE; FEDERAL SAFETY REGULATION CLAUSE

In Cortes v. Lucky Stores, Inc., 96-STA-30 (ARB Feb. 27, 1998), Complainant failed to establish that his discharge violated STAA, 49 U.S.C. § 31105(a)(1)(B)(i), based on a refusal to drive because of fatigue, see 49 C.F.R. § 392.3 (1996), where there were 15 to 16 hours between the dispatch and the report time. A subsection (B)(i) complaint must be based on a genuine violation, not a mere good faith belief in a violation. See Brandt v. United Parcel Service, 95-STA-26 (Sec'y Oct. 26, 1995).

[STAA Digest V B 2 a iv]
REFUSAL TO DRIVE BASED ON FATIGUE; REASONABLE APPREHENSION CLAUSE

In Cortes v. Lucky Stores, Inc., 96-STA-30 (ARB Feb. 27, 1998), Complainant failed to establish that his discharge violated STAA, 49 U.S.C. § 31105(a)(1)(B)(ii), when he refused to drive based on fatigue. a subsection (B)(ii) complaint focuses on whether a reasonable person in the same situation would conclude that there was a reasonable apprehension of serious injury. The ARB agreed with the ALJ's finding that Complainant's testimony that he was falling asleep during his earlier shift was not credible. Thus, where Complainant relied on only self-serving testimony that he needed two days off to rest after a regular work week, and gave no reason why he could not rest and sleep during the at least 14 hours he had to rest before reporting to work, the ARB concluded that a reasonable person in the same circumstance as Complainant would not conclude that his ability or alertness would be impaired such that a violation of the fatigue rule would have occurred.

[STAA Digest X a]
SETTLEMENT JUDGE PROCEEDINGS; APPLICABILITY OF FOIA

A matter that was unclear under the settlement judge regulation at 29 C.F.R. § 18.9(e), was whether papers created by, or received by and retained by, an OALJ settlement judge are subject to the Freedom of Information Act. The answer appears to lie in the Administrative Dispute Resolution Act, 5 U.S.C. §§ 571-584. In 1996, Congress reenacted the Administrative Dispute Resolution Act of 1990 (the original act had a 1995 sunset date). The 1996 reenactment deals directly with the issue of the application of FOIA to a federal government neutral, to wit: "A dispute resolution communication which is between a neutral and a party and which may not be disclosed under this section shall also be exempt from disclosure under section 552(b)(3)." 5 U.S.C. § 574(j). Section 552(b)(3) is FOIA exemption 3, which exempts matters "specifically exempted from disclosure by statute."

[STAA Digest XI B 2]
DISMISSAL FOR CAUSE; COMPLAINANT'S FAILURE TO RESPOND TO ALJ'S ORDERS

In Griffin v. Consolidated Freightways Corp. of Delaware, 97-STA-25 (ARB Feb. 10, 1998), the ALJ recommended dismissal of the complaint Complainant failed to respond to any of the ALJ's orders and had been uncooperative in other aspects of the pretrial stage. The ARB observed that the ALJ's findings of fact were supported by substantial evidence on the record as a whole and therefore were conclusive pursuant to 29 C.F.R. §1978.109(c)(3) (1997) (the ALJ had detailed the procedural history leading to his recommendation of dismissal). Accordingly, the ARB accepted the ALJ's recommendation and dismissed the complaint. 29 C.F.R. §§1978.106(a) and 18.6(d)(2)(v) (1997).