This newsletter covers materials that became available during the period from September 3 to September 29, 1997.

[N/E Digest I A 2]
GAO REPORTS

On September 2, 1997, the U.S. Government Accounting Office issued a Report to the Chairman, Subcommittee on Oversight and Investigations, Committee on Commerce, House of Representatives, Nuclear Power Safety: Industry Concerns With Federal Whistleblower Protections Systems (GAO/HEHS-97-162, Sept. 2, 1997). This report is a follow-up to an earlier report entitled Nuclear Employee Safety Concerns: Allegation System Offers Better Protection, but Important Issues Remain (GAO/HEHS-97-51, Mar. 31, 1997), which addressed concerns by some members of Congress that laws, as implemented by NRC and DOL, have not adequately protected nuclear power industry workers who raise health and safety issues. The follow-up report discusses how recent NRC and DOL actions and proposals to strengthen whistleblower protections have been received by the nuclear power industry.

[N/E Digest II B 2]
UNDERLYING VIOLATION; DOL JURISDICTION

When Complainant in Roberts v. Rivas Environmental Consultants, Inc., 96-CER-1 (ARB Sept. 17, 1997), filed her whistleblower complaint, both OSHA and Complainant apparently treated the charges as both a CERCLA and an OSHA whistleblower complaint because Complainant worked at a CERCLA Superfund site. The nature of her complaints, however, were not environmental in nature, but were entirely based in workplace health and safety. The ARB held that "[u]nder CERCLA, there can be no adjudication on the merits if an alleged discriminatee has failed to submit a complaint alleging CERCLA employee protection violations to the Department of Labor for investigation within the prescribed time period. 42 U.S.C. §9610(b) (1994) and 29 C.F.R. §24.3(c) (1995). [Complainant] has not satisfied this jurisdictional requirement. Accordingly, we are precluded from further review of this matter." Slip op. at 3-4 (citations omitted).

The ARB noted that OSHA whistleblower actions are brought by the Secretary of Labor in U.S. District Court, and that Complainant had testified to the effect that the Solicitor was awaiting the outcome of the CERCLA proceeding before pursuing the OSHA action. Thus, the ARB sent copies of its decision to OSHA attorneys from their consideration in determining whether to proceed under the OSHA statute.

[N/E Digest II B 3 b]
WRITTEN COMPLAINT; OSHA MEMORANDUM SUFFICES

In Roberts v. Rivas Environmental Consultants, Inc., 96-CER-1 (ARB Sept. 17, 1997), OSHA apparently solicited a supplementary letter from Complainant on the mistaken assumption that a written submission from the complainant is needed. The ARB agreed with the ALJ that Complainant's oral statement to an OSHA investigator, and the subsequent preparation of an internal memorandum by that investigator satisfies the "in writing" requirements of 42 U.S.C. § 9610(b) and 29 C.F.R. § 24.3.

[N/E Digest III B 1]
FILING; DATE OF MAILING

An ERA complaint is filed as of the date it is mailed. Webb v. Carolina Power & Light Co., 93-ERA-42, slip op. at 6 n.3 (ARB Aug. 26, 1997) (citing 29 C.F.R. § 24.3(b)).

[N/E Digest III B 2 a]
FILING; TRIGGER DATE FOR LIMITATIONS PERIOD BEGAN WHEN COMPLAINANT STRONGLY SUSPECTED HE WAS WRONGFULLY BEING EXCLUDED FROM CONSIDERATION FOR EMPLOYMENT

In Webb v. Carolina Power & Light Co., 93-ERA-42 (ARB Aug. 26, 1997), Complainant was a contract engineer who was laid-off, and filed an ERA complaint alleging that later he was not considered for rehire because of whistleblowing activity.

The ARB found that the limitations period for filing the complaint began on the date that Complainant strongly suspected that Respondent was wrongly excluding him from consideration for employment. Although Complainant's complaint was filed more than 180 days after that date, Complainant had also alleged a continuing violation. Thus, the ARB next considered under the continuing violation theory whether an adverse action had occurred within 180 days of the filing. See casenote at III C 1 for more on continuing violation analysis]

[N/E Digest III C 1]
CONTINUING VIOLATION THEORY; NEGATIVE REFERENCE MADE WITHIN THE FILING LIMITATIONS PERIOD -- EVEN THOUGH NOT ITSELF AN INDEPENDENT ERA VIOLATION BECAUSE IT DID NOT RESULT IN TANGIBLE JOB DETRIMENT -- PERMITS EXAMINATION OF ALL ALLEGED INCIDENTS ON THE MERITS

In Webb v. Carolina Power & Light Co., 93-ERA-42 (ARB Aug. 26, 1997), Complainant was a contract engineer who was laid-off, and filed an ERA complaint alleging that later he was not considered for rehire because of whistleblowing activity.

The ARB found that the limitations period for filing the complaint began on the date that Complainant strongly suspected that Respondent was wrongly excluding him from consideration for employment. Although Complainant's complaint was filed more than 180 days after that date, Complainant had also alleged a continuing violation. Thus, the ARB next considered under the continuing violation theory whether an adverse action had occurred within 180 days of the filing. Focusing on the "same subject matter" element of the three-part-test found in Thomas v. Arizona Public Serv. Co., 89-ERA-19 @ 7 (Sec'y Sept. 17, 1993) (Editor's note: In Webb, the ARB cites the Thomas decision as "88-ERA-212, Sec. Dec. and Ord. of Rem., Sept. 25, 1993, slip op. at 13"; this, however, appears to be an error), the ARB found that the continuing violation theory applied. The ARB wrote:

Systematically excluding an individual from consideration for employment, by its very nature, is a continuing course of conduct and may constitute a continuing violation if it is based upon an employee's protected activity. Egenrieder v. Metropolitan Edison Co./G.P.U., Case No. 85-ERA-23, Order of Remand, Apr. 20, 1987, slip op. at 4. In this case, [Complainant's former supervisor's] negative reference [about Complainant's performance, which the ARB found to be motivated by discriminatory animus, and which was made within 180 days of the filing of the complaint], to the extent that it is accepted as evidence of an ongoing decision to exclude [Complainant] from consideration for employment, is sufficiently similar in nature to [Complainant's] other allegations as to constitute a continuing violation. Accordingly, the merits of all of the alleged claims will be considered.

Slip op. at 7.

In a footnote, the ARB indicated that the former supervisor's remark that was within the 180 days prior to the filing of the complaint, was not itself an independent ERA violatin because there was no evidence of a tangible job detriment resulting from the remark. Slip op. at 6 n.4. Nonetheless, the ARB found that the former supervisor's "discriminatory animus could have manifested itself earlier in other actions that Carolina Power took in failing to rehire [Complainant]. We therefore examine the merits of all of the alleged incidents to determine if they were tainted by the same animus. If so, [Complainant] would have the opportunity to show that the [former supervisor's] remarks were evidence of a practice of exclusion that wrongfully prevented [Complainant] from being considered for jobs for which he was qualified." Id.

In reviewing the evidence, however, the ARB concluded that Complainant had not established that the former supervisor's comments were part of an ongoing practice of exclusion which explained the earlier adverse actions.

[N/E Digest IV C 6]
TIMELINESS OF COMPLAINT; TOLLING CANNOT BE BASED ON SETTLEMENT NEGOTIATIONS OR USE OF INTERNAL GRIEVANCE PROCEDURE

Neither employer participation in settlement discussions nor use of an internal grievance procedure tolls the statute of limitations in a whistleblower case. Beckmann v. Alyeska Pipeline Service Co., 95-TSC-16 (ARB Sept. 16, 1997), citing Tracy v. Consolidated Edison Co. of New York, Inc., 89-CAA-1, slip op. at 8 (Sec'y July 8, 1992).

[N/E Digest VIII A 8]
FINDINGS OF FACT AND CREDIBILITY DETERMINATIONS

In Roberts v. Rivas Environmental Consultants, Inc., 96-CER-1 (ARB Sept. 17, 1997), the ARB noted that although the ALJ had made implicit credibility determinations in his recommended decision, "our review would have benefitted from more expansive findings of fact, including specific credibility determinations. Pages 2-22 of the R.D. and O. do not provide such findings because they merely summarize the testimony of the various witnesses."

[N/E Digest VIII A 8]
UNETHICAL CONDUCT; OBLIGATION OF ALJ TO RESOLVE UNCERTAINTIES SURROUNDING QUESTIONABLE CONDUCT

In Webb v. Carolina Power & Light Co., 93-ERA-42 (ARB Aug. 26, 1997), the ARB pointed out a number of suspicious discrepancies between a handwritten and signed statement about Complainant's performance by Complainant's former supervisor, and a typed version supplied by Respondent to the DOL investigator. The ARB found that these discrepancies were "highly probative of an effort to cover up unlawful motivation on [the former supervisor's] part." Slip op. at 9. The ARB criticized the ALJ for not pursuing the issue, writing that "[w]here the integrity of the Department's adjudicative processes are at stake, the presiding Administrative Law Judge should take all appropriate steps to resolve the uncertainty surrounding questionable conduct." Id. The ARB also wrote that

If [Respondent's] counsel knowingly allowed the altered version to be submitted to the Department of Labor assuming that it would be accepted as a typed version of the handwritten statement, that would be a serious violation of the standards of conduct for practice before the administrative tribunals of the Department. See 29 C.F.R. § 18.36(a): "All persons appearing in proceedings before an administrative law judge are expected to act with integrity, and in an ethical manner."

Id.

[N/E Digest IX M 2]
UNETHICAL CONDUCT; FABRICATION OF EVIDENCE

In Mansour v. Oncology Services Corp., 94-ERA-41 (ARB Sept. 11, 1997), Employer attempted to establish that Complainant had fabricated evidence. The ALJ found that Employer had established that the allegedly fabricated evidence (a memorandum purporting to advise Employer on restrictions on the use of certain radiation technology) was typed on the same word processing equipment that Complainant had used to type his complaint to DOL, but declined to find that Employer had established that the memorandum was not authentic. Although the ARB's disposition of the complaint rendered it unnecessary to resolve the authenticity of the memorandum, the ARB made a point of stating that it questioned the ALJ's conclusion that Employer failed to establish that the memorandum was not authentic. Accordingly, the ARB observed that "...the fabrication of evidence in administrative proceedings is a very serious matter. Not only does the United States Code provide for prosecution of such an offense, 18 U.S.C. § 1505 (1994), but also the ALJ is empowered to exclude parties from proceedings on the basis of unethical conduct. 29 C.F.R. § 18.36(b) (1995); cf. Sheridan v. E.I. Dupont de Nemours & Co., 100 F.3d 1061, 1069 (3d Cir. 1996)(noting principle that a party's fabrication of evidence is indicative that his case is weak or unfounded)."

[N/E Digest IX M 2]
UNETHICAL CONDUCT; OBLIGATION OF ALJ TO RESOLVE UNCERTAINTIES SURROUNDING QUESTIONABLE CONDUCT

In Webb v. Carolina Power & Light Co., 93-ERA-42 (ARB Aug. 26, 1997), the ARB pointed out a number of suspicious discrepancies between a handwritten and signed statement about Complainant's performance by Complainant's former supervisor, and a typed version supplied by Respondent to the DOL investigator. The ARB found that these discrepancies were "highly probative of an effort to cover up unlawful motivation on [the former supervisor's] part." Slip op. at 9. The ARB criticized the ALJ for not pursuing the issue, writing that "[w]here the integrity of the Department's adjudicative processes are at stake, the presiding Administrative Law Judge should take all appropriate steps to resolve the uncertainty surrounding questionable conduct." Id. The ARB also wrote that

If [Respondent's] counsel knowingly allowed the altered version to be submitted to the Department of Labor assuming that it would be accepted as a typed version of the handwritten statement, that would be a serious violation of the standards of conduct for practice before the administrative tribunals of the Department. See 29 C.F.R. § 18.36(a): "All persons appearing in proceedings before an administrative law judge are expected to act with integrity, and in an ethical manner."

Id.

[N/E Digest X D]
"SMOKING GUN" EVIDENCE MAY BE REBUTTED

In Webb v. Carolina Power & Light Co., 93-ERA-42 (ARB Aug. 26, 1997), a recruiter made a log entry about an inquiry she had made with Respondent about resume submissions she had made in regard to engineering positions, to wit: "...Only 1 hire per month & nobody ruled out on this req[uest] except former emp[loyee] Chuck Webb." Webb was the Complainant. Although the record indicated that Respondent was requiring a college degree that Complainant did not have, two other submitted candidates also did not have a college degree. Although this notation appeared to be direct evidence of discrimination, the recruiter testified that she made the notation about Complainant because she only inquired about his fate and not the fate of any of the other candidates who had been submitted. The ARB found the explanation credible, and noted that "[n]otwithstanding a seeming smoking gun' in the record, other evidence may show that there was not discriminatory intent." Slip op. 14 (citation omitted).

[N/E Digest XII D 13]
PROTECTED ACTIVITY; GOSSIPING

In Mansour v. Oncology Services Corp., 94-ERA-41 (ARB Sept. 11, 1997), the ALJ had concluded that Complainant's actions in relating, in an unofficial conversation with an NRC inspector, rumors about a personal relationship between a management official and a state or federal nuclear inspector, and the alleged stagging of an equipment failure by the management official, were undeniably in poor judgment and were unrelated to any protected activity on the part of Complainant.

The ARB noted that "[i]n view of the overriding importance of encouraging communications by employees with the NRC regarding safety-related matters, we are reluctant to agree with the ALJ that [Complainant's] remarks to [the NRC inspector] were unprotected or that [Employer's] dissatisfaction with [Complainant's] exercise of judgment in that instance is wholly unrelated to activity that is protected by the ERA." The ARB, however, did not render a holding on this issue because there was clear and convincing evidence that Complainant would have been terminated from employment even in the absence of his protected activity (and even assuming that the relating of rumors in the present context was protected activity).

[N/E Digest XIII B 1]
ADVERSE ACTION; NEGATIVE EMPLOYMENT REFERENCES; REQUIREMENT THAT COMPLAINANT ESTABLISH THAT A SUBSTANTIAL JOB DETRIMENT WOULD BE A PREDICTABLE AND NATURAL OUTCOME

In Webb v. Carolina Power & Light Co., 93-ERA-42 (ARB Aug. 26, 1997), the ARB found that Respondent had not presented clear and convincing evidence that Complainant's former supervisor would have given a negative appraisal of Complainant to a friend of Complainant who still worked at the plant, even if the former supervisor did not suspect that Complainant had engaged in protected activities. Nonetheless, the ARB found that Complainant had not established an adverse employment action.

The ARB distinguished earlier decisions indicating that an ERA whistleblower violation is established if a negative reference is given to a reference checker hired by Complainant. See Leveille v. New York Air Natl. Guard, 94-TSC-3 and 4 (Sec'y Dec. 11, 1995); Gaballa v. The Atlantic Group, Inc., 94-ERA-9 (Sec'y Jan. 18, 1996). The ARB found that the unique facts of the instant case did not establish that there was a substantial risk that the negative reference would be maintained in a record or would be given to outside organizations seeking information about Complainant. In the instant case, tComplainant's friend had asked if there was a problem with Complainant's performance and the former supervisor said Complainant was not as a strong a performer as others and that he not good in a group setting The ARB found that the prior cases were different because a substantial job detriment would have been a predictable and natural outcome of the respondent's conduct.

In another part of the decision discussing Complainant's claim that the reason he had not been hired by any employer in nuclear industry, despite numerous applications, must be blacklisting by Respondent, the ARB noted that Complainant presented no evidence that any other employer contacted Respondent for a reference or otherwise received negative information about Complainant from Respondent.

[N/E Digest XVI E 3 a]
ATTORNEY'S FEES; SUFFICIENT SPECIFICITY

The ARB will usually require a petition for attorney's fees to include the date on which the attorney's time was expended, the amount of hours expended, and a specific description of the tasks undertaken by the attorney during that time. Pillow v. Bechtel Construction, Inc., 87-ERA-35 (ARB Sept. 11, 1997).

[N/E Digest XVI E 3 c]
ATTORNEY'S FEES; REDUCTION OF HOURLY FEE WHERE COUNSEL DID NOT PROVIDE AFFIDAVIT OF QUALIFICATIONS OR REASONABLE COMMUNITY BILLING RATES

In Pillow v. Bechtel Construction, Inc., 87-ERA-35 (ARB Sept. 11, 1997), the ARB rejected Complainant counsel's request for approval of an hourly billing rate of $250, and found instead a reasonable hourly rate of $125 where counsel did not provide an affidavit attesting to his qualifications or that $250 was a reasonable hourly billing rate in his community. The ARB noted that counsel had stated that $250 per hour is less than the rate charged by opposing counsel, but found the statement inadequate to demonstrate entitlement to that hourly rate.

[N/E Digest XVI E 4 c]
ATTORNEY'S FEES INCURRED DURING JUDICIAL REVIEW; AUTHORITY OF ARB TO AWARD; SPILT IN CIRCUITS

In Pillow v. Bechtel Construction, Inc., 87-ERA-35 (ARB Sept. 11, 1997), a case arising in the Eleventh Circuit, the ARB granted appellate level costs and attorney's fees where Complainant prevailed before the Secretary, and Complainant participated in the judicial review proceeding. The Board noted a spilt in the circuits on the issue of the Secretary of Labor's authority to make such an award. The Fourth Circuit has held that the Secretary has such authority, Blackburn v. Reich, 79 F.3d 1375, 1379 (4th Cir. 1995), but the Sixth Circuit has held that the Secretary does not. DeFord v. Secretary of Labor, 715 F.2d 231 (6th Cir. 1983).

[N/E Digest XVI E 4 c]
ATTORNEY'S FEE; PREPARATION OF BRIEF ON APPEAL WHERE BRIEF WAS NOT REQUIRED

In Pillow v. Bechtel Construction, Inc., 87-ERA-35 (ARB Sept. 11, 1997), Respondent had sought judicial review of the Secretary's determination in favor of Complainant. The Eleventh Circuit affirmed the Secretary. See Pillow v. Bechtel Construction, Inc., 87-ERA-35 (ARB Feb. 5, 1997). Respondent objected to items in an attorney's fee petition submitted to the ARB for time spent in preparing Complainant's brief in the appellate court because, according to Respondent, such a brief was voluntary and Complainant's appearance gratuitous. The ARB acknowledged that Complainant was not required to file in the Eleventh Circuit proceeding, but found that "he clearly had an interest in the outcome [and therefore] preparing and submitting the brief was reasonable under the circumstances." Slip op. at 5. Thus, it allowed costs for work performed in producing the brief.

[N/E Digest XVII A 1]
SETTLEMENT; AUTHORITY OF DOL TO VOID SETTLEMENT REACHED PRIOR TO ADMINISTRATIVE ADJUDICATORY STAGE

In Beliveau v. Naval Undersea Warfare Center, 97-SDW-6 (ALJ Sept. 9, 1997), Complainant sought a ruling that a settlement agreement that he had entered into with Respondent in 1995 prior to completion of an investigation of the matter by Wage and Hour was void ab initio because it was not approved by the Secretary of Labor, and therefore the complaint that was the subject of the settlement agreement could be reopened. The ALJ found language in an ARB order declining to take jurisdiction of the matter as an interlocutory appeal to be controlling. See Beliveau v. Naval Undersea Warfare Center, 97-SDW-6 (ARB Aug. 14, 1997)(Order Denying Interlocutory Appeal). In essence, the ALJ found that DOL has no authority to declare a settlement entered into prior to completion of the investigatory stage void because such a settlement does not need to be approved by the ALJ or the ARB.

[N/E Digest XVII G 4]
BOARD JURISDICTION OVER PROPER INTERPRETATION OF PREVIOUSLY APPROVED SETTLEMENT

In Pillow v. Bechtel Construction, Inc., 87-ERA-35 (ARB Sept. 11, 1997), the Secretary had earlier found in favor of Complainant and remanded the case to the ALJ for a determination on damages. On remand, the parties settled in regard to the amount of damages and attorney's fees, although the settlement contemplated that Respondent would seek judicial review on the issue of liability. The Eleventh Circuit affirmed the Secretary. Upon motion of Complainant, Respondent was ordered by the ARB to pay the amount agreed in the settlement. See Pillow v. Bechtel Construction, Inc., 87-ERA-35 (ARB Feb. 5, 1997). A dispute, however, remained concerning the proper interpretation of the settlement agreement as to interest. Id.

Respondent argued that 42 U.S.C. § 5851(e) gives jurisdiction over enforcement matters to the U.S. District Court rather than the Secretary of Labor. The ARB stated that it "agree[s] with the general proposition that after a final decision has been issued, the Board lacks jurisdiction over a dispute about the proper interpretation of a settlement agreement." Pillow, 87-ERA-35, slip op. at 2 (ARB Sept. 11, 1997)(citation omitted). The ARB distinguished Williams v. Public Serv. Elec. & Gas Co., 94-ERA-2 (Sec'y Apr. 10, 1995), appeal filed, No. 97-3127 (3d. Cir), on the ground that, unlike here, in Williams, the settlement included a provision retaining jurisdiction for the Board to enforce the agreement. Thus, the ARB concluded that, pursuant to 42 U.S.C. § 5851(e), the interpretation issue may be addressed to the U.S. District Court.

[STAA Digest IX B 2 b iii]
BACK PAY; DATE ELIGIBILITY FOR BACK PAY ENDS; WAIVER OF REINSTATEMENT NOT VALID UNLESS EMPLOYER MADE UNCONDITIONAL OFFER OF REINSTATEMENT

In Ass't Sec'y & Burke v. C.A. Express, Inc., 96-STA-5 (ALJ May 20, 1997), the ALJ had accepted the OSHA investigator's calculation of back pay as it was the only evidence of record on the issue. Id. @ 13; slip op. at 15. In the ARB's decision adopting the ALJ's decision on the merits, the ARB indicated that this calculation was based on the period from termination of employment to an alleged waiver of reinstatement. Ass't Sec'y & Burke v. C.A. Express, Inc., 96-STA-5, slip op. at 3 (ARB Sept. 17, 1997). The ARB found that a waiver of reinstatement is valid only when an employer has made an unconditional offer of reinstatement, and since there was no evidence of such an offer in the instant case, held that the appropriate cut-off date for back pay is the date of hire at a commensurate rate of pay.

[STAA Digest X A 1]
SETTLEMENT; FAIRNESS, ADEQUACY AND REASONABLENESS WHERE COMPLAINANT ACCEPTS SMALLER AMOUNT THAN AMOUNT AWARDED IN ARB DECISION

In Cook v. Guardian Lubricants, Inc., 95-STA-43 (ALJ Sept. 11, 1997), the ALJ found a settlement agreement to be fair and adequate even though Complainant would receive an amount substantially smaller than was awarded to him in an earlier ARB remand decision. The ALJ found Complainant's decision to accept this amount was reasonable given the risks involved in continuing the litigation, the ALJ noting that there were several grounds on which an appellate court could potentially reverse the ARB's decision.