In Ishmael v. Calibur Systems, Inc., 96-SWD-2 (ALJ June 23, 1997), evidence of prior convictions offered by Respondent to rebut deposition testimony of Complainant that he had never been convicted of any crime except speeding tickets was admitted into evidence by the ALJ, but afforded little weight because they had not been produced pursuant to a specific discovery request, and because the convictions were more than ten years old and were for misdemeanors. See 29 C.F.R. § 18.609; United States v. Sims, 588 F.2d 1145, 1147 (6th Cir. 1978).

In Ishmael v. Calibur Systems, Inc., 96-SWD-2 (ALJ June 23, 1997), the ALJ considered what test should be applied to determine when a parent company is "merely a parent" and should be dismissed as a respondent. See Varnadore v. Oak Ridge Nat'l Lab., 92-CAA-2 and 5, 93-CAA-1, 94-CAA- 2 and 3 (ARB June 14, 1996)(finding that a mere parent company that did not employ the complainant should be dismissed as a respondent, but not articulating a test for when a company is a mere parent).

The ALJ applied the test found in Baker v. Stuart Broadcasting Co., 560 F.2d 389, 391 (8th Cir. 1997), a Title VII case in which the courts held that there must be sufficient indicia of an interrelationship to justify a belief by the aggrieved employee that the affiliated corporation is jointly responsible for the acts of the immediate employer. The court applied a four-part test: degree of (1) interrelated operations, (2) common management, (3) centralized control of labor relations, and (4) common ownership).

Applying this test, the ALJ found that the two corporations in the present case were alter egos, and declined to dismiss the parent corporation.

In Paine v. Saybolt, Inc., 97-CAA-4 (ARB July 22, 1997), the parties submitted a settlement agreement seeking approval of the settlement and dismissal of the complaint. The agreement contained a provision indicating that the record shall be covered by a protective order. This, together with a designation of the record as confidential commercial information, was intended as an attempt to shield the entire record from disclosure under FOIA. The ALJ recommended severing the provision from the agreement. The Board, however, held that "[w]e expressly reject this recommendation because the Board cannot sever or modify material terms of a negotiated settlement. See, e.g., Macktal v. Secretary of Labor, 923 F.2d 1150, 1154-56 (5th Cir. 1991)...."

[Editor's note: This decision appears to conflict with Brown v. Holmes & Narver, Inc., 90-ERA-26 (Sec'y May 11, 1994), in which the Secretary found that a offensive provision could be severed without violating Macktal, where the agreement also contained a savings provision.]

In Paine v. Saybolt, Inc., 97-CAA-4 (ARB July 22, 1997), the parties submitted a settlement agreement seeking approval of the settlement and dismissal of the complaint. The agreement contained a provision indicating that the record shall be covered by a protective order, and designating the contents of the record "confidential commercial information." The purpose of this provision was an attempt to shield the entire record from disclosure pursuant to the Freedom of Information Act. The Board rejected the blanket designation and refused to approve the settlement, finding that the intent of the predisclosure notification provision of DOL's FOIA regulations "is to protect specific information which the submitter in good faith claims could reasonably be expected to cause [substantial competitive] harm." The Board wrote: "Designating the entire contents of the record, some portions of which would not qualify for FOIA exemption under any circumstances (e.g., the hearing transcript and exhibits which are already public records) does not constitute a good faith designation."

The Board distinguished its approval of the settlement agreement in Seater v. Southern California Edison Co., 95-ERA-13 (ARB Mar. 27, 1997), on the ground that the parties only designated certain financial information regarding the settlement and not the entire record. The Board noted that the ALJ in Seater, had suggested that financial terms of a settlement should be set forth in the ALJ's recommended decision. The Board, however, stated:

We recognize that publishing the financial terms of a settlement may serve the purpose of encouraging employees to engage in whistleblower activities. However, we also recognize that publishing the financial terms of settlements would likely lead to fewer settlements, perhaps more contentious litigation and potentially have a chilling effect on whistleblowing activities. Therefore, we decline to adopt the ALJ's suggestion in Seater.

In STAA whistleblower cases, deference is paid to the findings of another government agency made in proceedings brought under different statutes only in limited circumstances. 29 C.F.R. § 1978.112. Nichols v. Gordon Trucking, Inc., 97-STA-2 (ARB July 17, 1997).

In Andreae v. Dry Ice, Inc., 95-STA-24 (ARB July 17, 1997), the Board declined to discuss the ALJ's findings on whether a prima facie showing had been made because once Respondent presented rebuttal evidence, the answer to the question whether Complainant made a prima facie showing is not useful. The Board emphasized that it applies the following principle set out in United States Postal Serv. v. Aikens, 460 U.S. 709 (1983):

Because this case was fully tried on the merits, it is surprising to find the parties and the [court] still addressing the question whether [the plaintiff] made out a prima facie case. . . .

Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant. The [court] has before it all the evidence it needs to decide the [ultimate question of discrimination].

Andreae, 95-STA-24, slip op. at 2, quoting Aikens, 460 U.S. at 713-14, 715 (emphasis added by Board).

Evidence that the employer routinely encouraged drivers to make written reports of safety defects affecting the vehicles is highly relevant evidence that militates against a finding of retaliatory motivation. Andreae v. Dry Ice, Inc., 95-STA-24 (ARB July 17, 1997).

A complainant's motivation in making safety complaints has no bearing on whether those complaints are protected activity. Nichols v. Gordon Trucking, Inc., 97-STA-2 (ARB July 17, 1997).

In Spady v. Roadway Express, 96-STA-28 (ARB June 24, 1997), the ALJ recommended dismissal with prejudice where Complainant did not respond to the ALJ's order to show cause why the complaint should not be dismissed for failure to comply with the prehearing order and failure to appear at the hearing. The Board issued its own order to show cause, and when Complainant did not respond, adopted the ALJ's order of dismissal.