In Verdone v. Northeast Utilities, 97-ERA-27, 28, 29 and 30 (ALJ May 9, 1997), the ALJ declined to order the Wage and Hour Division to produce Complainants' interview statements submitted during the investigation of the matter. Respondents had filed a FOIA request with Wage and Hour for the statements, but Wage and Hour declined to disclose the documents, citing FOIA exemption 7(c) (unwarranted invasion of personal privacy). The ALJ noted that appeals of FOIA requests are resolved in another forum (appeal to the Solicitor of Labor), and that he would not over step judicial boundaries to order Wage and Hour to produce the documents.

In addition, the ALJ held, even assuming he could order Complainants' to waive their privacy interest in the statements, it was not necessary under the present posture of the case in which there was a pending motion for summary decision that did not require evidence of the statements for resolution. The ALJ, however, did not encourage or prohibit an attempt at discovery of the statements.

In Berkman v. U.S. Coast Guard Academy, 97-CAA-2 and 9 (ALJ Apr. 9, 1997), the ALJ granted Complainant's motion to disqualify Respondent's counsel, where it was clear that Complainant intended to call Respondent's counsel as a witness and that the expected interrogation would be material and important to the case. The ALJ took into consideration that the motion to disqualify had come early in the proceedings and that only limited discovery had been done.

The fact that Complainant's supervisor candidly acknowledged that he would prefer not to supervise an employee who, without authorization, gave business documents to a reporter and to Congress, and that he suspected that Complainant had participated in such activities, does not end the inquiry in a DOL ERA whistleblower proceeding. Rather, the complainant has the burden to establish that the supervisor's animus against supervising whistleblowers was a contributing factor in an adverse action. Trimmer v. Los Alamos National Laboratory, 93-CAA-9 and 93-ERA-55 (ARB May 8, 1997).

In considering whether Respondent engaged in adverse employment action in the way it undertook to find suitable alternative employment for Complainant, the Board in Trimmer v. Los Alamos National Laboratory, 93-CAA-9 and 93-ERA-55 (ARB May 8, 1997), took into consideration Complainant's passive role despite the job coordinator's suggestions that he needed to network and actively seek job leads.

In Clifton v. United Parcel Service, 94-STA-16 (ARB May 14, 1997), the ALJ had recommended in a January 15, 1997 decision on remand that Complainant be awarded six months of front pay because Respondent had ignored the Secretary of Labor's May 5, 1995 order of reinstatement. The Board, however, found that the record did not reflect a level of hostility between Complainant and Respondent sufficient to require substitution of the reinstatement order with an award of front pay, "at this time". The ARB noted that "there is no reason to assume that [Respondent] would not comply with a final order once it is issued by the Secretary of Labor, if enforced by the Court of Appeals." The Board reminded Respondent "that although it has appealed the Secretary's May 5, 1995 order to the United States Court of Appeals for the Sixth Circuit, such an appeal does not automatically stay the Secretary's order of reinstatement." Slip op. at 2 n.1.

See also Dutkiewicz v. Clean Harbors Environmental Services, Inc., 95-STA-34 (ARB May 15, 1997)(order), in which the ARB ordered Complainant to respond to Respondent's motion to stay reinstatement. Respondent argued that if the Board determines that Complainant should be reinstated, he would be made whole by an award of back pay that lasts until he is reinstated. Respondent pointed out that Complainant is now living and working in another state, and argued that if Complainant should ultimately not prevail before the Board, he made may be faced with another termination after surrendering other employment and relocating. Thus, the Board noted that a stay of reinstatement may well be in Complainant's best interest. (Motion still pending)

In Clifton v. United Parcel Service, 94-STA-16 (ARB May 14, 1997), Complainant's back pay award was adjusted for a promotion based on the experience of a representative employee: the fellow employee who was ranked in seniority just below Complainant at the time Complainant was fired. That representative employee was given a full-time position after Complainant was terminated.

The record indicated that Complainant had bid on three positions in prior years, and had held two part-time positions at the time he was fired. The Board concluded that this evidence proved Complainant's desire to obtain full-time employment and that he would have bid on the position awarded to the representative employee.

The record also indicated that Respondent had a collective bargaining agreement with the Teamsters Union, which made positions available to employees according to seniority. Respondent did not offer any evidence that there were circumstances where the most senior employee bidding on the position did not receive the job. Thus, the Board concluded that Complainant would have been awarded the job had he not been wrongfully discharged.

"Where an employer is found to have violated the STAA and the claimant is found to be entitled to an offer of reinstatement to his former position with back pay, the claimant does not breach the obligation to mitigate damages by declining a job that is not substantially equivalent to his or her former position." Clifton v. United Parcel Service, 94-STA-16, slip op. at 3-4 (ARB May 14, 1997) (citation omitted).

In Somhorst v. Silver Eagle Transport, 97-STA-4 (ARB May 13, 1997), the ALJ had issued, via certified mail, an order to show cause why the matter should not be dismissed because of Complainant's non-compliance with prehearing orders. When the certified mail was returned to the ALJ with a notation by the U.S. Postal Service that the document was unclaimed despite two notifications of attempted delivery, the ALJ recommended dismissal. The ARB issued a second order to show cause. When neither Complainant nor Respondent responded, the ARB adopted the ALJ's order of dismissal.