This newsletter covers materials that became available during the period from December 3, 1997 to January 13, 1998.

[N/E Digest VI E]
REQUEST FOR HEARING; TIMELINESS AND OTHER FILING ISSUES

In Staskelunas v. Northeast Utilities Co., 98-ERA-8 (ALJ Dec. 4, 1997), the ALJ recommended dismissal of the request for hearing because Complainant failed to establish that his notice of appeal was timely. There was no indication in the record on the day Complainant actually received OSHA's determination letter, so the ALJ use the five-day rule of 29 C.F.R. § 18.4(c)(3) to conclude that the appeal letter was late. The ALJ also observed that even if Complainant had received OSHA's determination on the same day that he mailed the hearing request, the request was still untimely because Complainant had chosen to mail the request by certified mail, and that the docket section in Washington, D.C. had not received the request until the sixth day following the date of mailing. The ALJ noted that certified mail was not one of the methods enumerated in the regulations, see 29 C.F.R. § 24(d)(2)(i), and that Complainant therefore assumed the risk that the appeal letter would be delayed in the mail. Additionally, the ALJ noted that OSHA's determination letter had stated the proper methods for filing an appeal.

See also Jackson v. Northeast Utilities Co., 98-ERA-6 (ALJ Dec. 5, 1997)(no evidence Complainant ever filed a hearing request); Degostin v. Bartlett Nuclear, Inc., 98-ERA-7 (ALJ Dec. 1, 1997)(convoluted order of Complainant's receipt of various letters and orders not a ground for tolling filing requirement; rather this should have alerted Complainant of need to file timely).

[N/E Digest VII B 1]
SUBPOENA; ALJ'S AUTHORITY TO ISSUE

In Nason v. Maine Yankee Atomic Power Co., 97-ERA-37 (ALJ Nov. 12, 1997), the ALJ indicated that he would issue subpoenas in an ERA at the request of either party. The ALJ stated his opinion that the Secretary of Labor's dicta in Malpass v. General Electric Co., 85-ERA-38 and 39 (Sec'y Mar. 1, 1994), about subpoena power failed "to take into consideration the inherent authority of an administrative law judge to issue subpoenas as is permitted by the Office of Administrative Law Judges' Rules of Practice." The ALJ stated that "...I deem it necessary for the recipient of the subpoena to determine whether or not he or she will abide by the subpoena."

[N/E Digest VIII A 4]
ALLEGED HARASSMENT OF POTENTIAL WITNESS; ALJ'S AUTHORITY TO ISSUE PROTECTIVE ORDER

In Nason v. Maine Yankee Atomic Power Co., 97-ERA-37 (ALJ Nov. 10, 1997), Complainant moved for a protective order directing a person (who was not a party to the instant proceeding) to cease and desist from further contact with and harassment of a potential witness. The ALJ denied the motion on the ground it did not request something properly within the realm of a protective order (see 29 C.F.R. § 18.46). The ALJ, however, noted that a employee who is about to testify in an ERA proceeding may have a right of action under the ERA if he or she is intimidated, threatened, restrained, coerced, blacklisted, discharged, or otherwise discriminated against.

[N/E Digest VIII C 2]
APPELLATE JURISDICTION

In Williams v. Metzler, No. 97-3127, 1997 WL 793315 (3rd Cir. Dec. 30, 1997) (case below, ARB No. 96-160, ALJ No. 94-ERA-2), the ARB had entertained Complainant's motion to enforce a settlement agreement because of a clause in the agreement purportedly giving DOL the authority to enforce the agreement, but found that employer had not breached the agreement. Although the Third Circuit held, sua sponte, that DOL did not have the authority under the ERA to make binding findings on whether a settlement agreement was breached because the enforcement function lies in federal district court, it addressed Respondent's contention that the Court of Appeals did not have jurisdiction to review the ARB's action on the theory that the ARB's action was not among those authorized by 42 U.S.C. § 5851(b) (Secretary of Labor may issue orders granting relief, denying the complaint, or settling the dispute). The court, noting that jurisdictional provisions are to be construed generously in the absence of clear and convincing evidence of a contrary legislative intent, held that it had jurisdiction to review the Secretary's action.

Respondent also questioned the Third Circuit's jurisdiction based on the theory that the Secretary's action were, in effect, a decision not to begin a suit in the district court, i.e., a discretionary and unreviewable decision not to enforce. See Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). The court, however, distinguished Chaney, and held that the Secretary's actions were reviewable because DOL had taken affirmative steps to adjudicate a breach of contract claim, and made findings that determined the amount paid to Complaint, i.e., the actions directly affected property rights. The court also found that the stronger indication in the record was that the Secretary had considered the administrative proceedings to be a formal adjudication rather than an informal and nonbinding proceeding.

[N/E Digest IX D 3]
ALJ'S AUTHORITY TO RECONSIDER

In Willy v. The Coastal Corp., 85-CAA-1 (ALJ Dec. 4, 1997), the ALJ drew an assumption that he could recommend correction of a clear error in an earlier recommended decision.

[N/E Digest XII D 13]
PROTECTED ACTIVITY; PROVIDING DOCUMENTATION FOR ANOTHER'S COMPLAINT

In Paynes v. Gulf States Utilities Co., 93-ERA-47 (ALJ Dec. 3, 1997), the ALJ recommended a holding that Complainant's documentation of a safety concern that was raised by another employee is sufficient to constitute protected activity under the ERA.

[N/E Digest XVI A 4]
SCOPE OF REMAND

In Creekmore v. ABB Power Systems Energy Services, Inc., 93-ERA-24 (ALJ Dec. 1, 1997), the ALJ had, in an earlier decision, found that reinstatement was not appropriate under the factual scenario, and had recommended front pay instead. The Deputy Secretary (the Secretary having recused himself), however, had found that the front pay award was not appropriate because "the observed tension between the parties at the hearing is not sufficient to demonstrate the impossibility of a productive and amicable working relationship in this case." Creekmore v. ABB Power Systems Energy Services, Inc., 93-ERA-24, slip op. at 18 (Dep. Sec'y Feb. 14, 1996).

In the instant remand proceeding, Complainant presented additional evidence and argument on the reasonableness of reinstatement. In addition, the ALJ concluded that the Deputy Secretary's standard for evaluating the reinstatement/front pay issue had been overruled in Michaud v. B.S.P. Transport, 95-STA-29 (ARB Jan. 6, 1997), which adopted a reasonable person standard to evaluate a complainant's decision to refuse to accept a bona fide offer of reinstatement. The ALJ reviewed the circumstances, concluded that no reasonable person would accept reinstatement, and indicated that under Michaud, it was reasonable for Complainant to receive front pay rather than reinstatement.

Nonetheless, the ALJ found that he was constrained to follow the Deputy Secretary's ruling rejecting the ALJ's earlier award of front pay and remanding the case for the limited purpose of determining back pay and other specified damages. The ALJ indicated that another forum would have to resolve whether the original recommendation of front pay was proper under the new Michaud reasonableness test.

[N/E Digest XVI B 4]
FRONT PAY VERSUS REINSTATEMENT

In Creekmore v. ABB Power Systems Energy Services, Inc., 93-ERA-24 (ALJ Dec. 1, 1997), the ALJ had, in an earlier decision, found that reinstatement was not appropriate under the factual scenario, and had recommended front pay instead. The Deputy Secretary (the Secretary having recused himself), however, had found that the front pay award was not appropriate because "the observed tension between the parties at the hearing is not sufficient to demonstrate the impossibility of a productive and amicable working relationship in this case." Creekmore v. ABB Power Systems Energy Services, Inc., 93-ERA-24, slip op. at 18 (Dep. Sec'y Feb. 14, 1996).

In the instant remand proceeding, Complainant presented additional evidence and argument on the reasonableness of reinstatement. In addition, the ALJ concluded that the Deputy Secretary's standard for evaluating the reinstatement/front pay issue had been overruled in Michaud v. B.S.P. Transport, ARB No. 96-198 (Jan. 6, 1997), which adopted a reasonable person standard to evaluate a complainant's decision to refuse to accept a bona fide offer of reinstatement. The ALJ reviewed the circumstances, concluded that no reasonable person would accept reinstatement, and indicated that under Michaud, it was reasonable for Complainant to receive front pay rather than reinstatement.

Nonetheless, the ALJ found that he was constrained to follow the Deputy Secretary's ruling rejecting the ALJ's earlier award of front pay and remanding the case for the limited purpose of determining back pay and other specified damages. The ALJ indicated that another forum would have to resolve whether the original recommendation of front pay was proper under the new Michaud reasonableness test.

[N/E Digest XVI B 5 b]
RESPONDENT'S TERMINATION OF QUALITY ASSURANCE/QUALITY CONTROL DIVISION; EFFECT ON BACK PAY/REINSTATEMENT LIABILITY

Where Respondent had been sold and relocated, and its quality assurance/quality control (QA/QC) business effectively eliminated, all persons involved in the QA/QC functions laid off, and there was no substantially similar position for which Complainant is qualified under the new business structure, the ALJ recommended a holding that Respondent's liability for back pay and reinstatement terminated on the date Respondent's QA/QC was ended. In making this determination, the ALJ took into consideration whether QA/QC employees would have had transfer rights, and the Deputy Secretary's holding in a remand order that Respondent's decision to withdraw from the QA/QC business and to lay off staff was a legitimate business decision. Creekmore v. ABB Power Systems Energy Services, Inc., 93-ERA-24 (ALJ Dec. 1, 1997).

[N/E Digest XVI C 2 b ii]
RESPONDENT'S TERMINATION OF QUALITY ASSURANCE/QUALITY CONTROL DIVISION; EFFECT ON BACK PAY/REINSTATEMENT LIABILITY

Where Respondent had been sold and relocated, and its quality assurance/quality control (QA/QC) business effectively eliminated, all persons involved in the QA/QC functions laid off, and there was no substantially similar position for which Complainant is qualified under the new business structure, the ALJ recommended a holding that Respondent's liability for back pay and reinstatement terminated on the date Respondent's QA/QC was ended. In making this determination, the ALJ took into consideration whether QA/QC employees would have had transfer rights, and the Deputy Secretary's holding in a remand order that Respondent's decision to withdraw from the QA/QC business and to lay off staff was a legitimate business decision. Creekmore v. ABB Power Systems Energy Services, Inc., 93-ERA-24 (ALJ Dec. 1, 1997).

[N/E Digest XVI D 4 a]
COMPENSATORY DAMAGES; COMPARATIVE AWARDS

In LaTorre v. Coriell Institute for Medical Research, 97-ERA-46 (ALJ Dec. 3, 1997), the ALJ found that Complainant had testified credibily about his loss of self esteem and emotional pain and suffering resulting from Respondent's adverse employment action, and reviewing compensatory damages awards of similar complaints, determined that the circumstances justified an award of $26,500 in compensatory damages.

In Berkman v. U.S. Coast Guard Academy, 97-CAA-2 and 9 (ALJ Jan. 2, 1998), the ALJ recommended a compensatory damage award of $70,000 where Complainant presented evidence of a clinical diagnosis of major depression requiring medication and therapy, and with physical manifestations in the form of frequent anxiety attacks. In addition, the ALJ considered that Complainant's character had changed "from an outgoing and pleasant gentleman to a defeated and downtrodden individual; from a professional working in his field of experience to a store clerk working with little responsibility; and from an employee who took pride in his work to an employee who performed his duties in fear of personal liability." Slip op. at 51.

[N/E Digest XVI E 3 a]
ATTORNEY'S FEES; SUBMISSION OF REQUEST FOR REIMBURSEMENT

In LaTorre v. Coriell Institute for Medical Research, 97-ERA-46 (ALJ Dec. 3, 1997), Complainant sought reimbursement for attorneys fees, but did not provide any documentation. The ALJ, finding that he could not determine the reasonableness of the request, recommended denial of the attorney fee request, but without prejudice, in order to afford counsel "an opportunity to submit an application for fees, together with supporting data, including among other things, her professional qualifications, an itemization of the hours expended on complainant's behalf in this case, and her hourly billing rate." Slip op. at 44.

[N/E Digest XVII G 4]
SETTLEMENT AGREEMENT; DOL'S AUTHORITY TO ENFORCE

In Williams v. Metzler, No. 97-3127, 1997 WL 793315 (3rd Cir. Dec. 30, 1997) (case below, ARB No. 96-160, ALJ No. 94-ERA-2), the Third Circuit held that "the Secretary of Labor does not have the authority, even with the consent of the parties, to enforce a settlement agreement resolving a retaliation claim brought by an employee/whistleblower against his employer under the Energy Reorganization Act."

The court raised this issue sua sponte, noting that the ERA provides only that either the Secretary or a party may seek enforcement of a settlement in the district court. 42 U.S.C. § 5851(d), (e); see also 24 C.F.R. § 24.8. The court indicated that the Secretary could utilize an informal fact gathering proceeding preliminary to enforcement (i.e., to inform the Secretary's decision on whether to pursue enforcement on the complainant's behalf), but does not have the authority under the ERA to make a formal adjudication entitled to preclusive effect in subsequent district court actions, on whether there was a breach of a settlement agreement. The court found that the ERA places the enforcement function in the district court, and that the parties cannot place consensual jurisdiction in the Secretary to perform that function (the settlement agreement included a provision giving the complainant the right to seek enforcement of the agreement through the Department of Labor).

[N/E Digest XVII G 9]
SETTLEMENT AGREEMENT TO PROVIDE RETIREMENT ANNUITY; INTERPRETATION OF CONTRACT WHERE TAX CONSEQUENCES NOT ADDRESSED

In Williams v. Metzler, No. 97-3127, 1997 WL 793315 (3rd Cir. Dec. 30, 1997) (case below, ARB No. 96-160, ALJ No. 94-ERA-2), the ARB had entertained Complainant's motion to enforce a settlement agreement because of a clause in the agreement purportedly giving DOL the authority to enforce the agreement, but found that employer had not breached the agreement. The Third Circuit held that "the Secretary of Labor does not have the authority, even with the consent of the parties, to enforce a settlement agreement resolving a retaliation claim brought by an employee/whistleblower against his employer under the Energy Reorganization Act." The court, however, found that the record was ambiguous as to the nature of the Secretary's actions (i.e., whether the administrative proceedings before the ALJ and the ARB had been an adjudication on the merits intended to be a binding determination, or whether they had been preliminary to a decision by the Secretary whether to file a suit in district court to enforce the settlement). Thus, in the interest of judicial efficiency, and because the parties had fully briefed the issues, the court determined that it would not rest on ultra vires agency action, but would address the merits.

As part of the settlement, the parties had agreed that Complainant would receive a retirement benefit based on a "single life annuity." The agreement did not specify the manner in which Respondent was to fulfill this commitment, nor did it address the allocation of taxes. Respondent was advised on the cost of an annuity policy that would provide the agreed monthly benefit; but concluding that the cost purchase price of the annuity would be taxable income to Complainant, withheld state and federal taxes due on that sum and used the remaining amount to purchase an annuity policy. As a result, Complainant received monthly checks of $477.13, rather than the expected amount of $782.35.

The court held that the parties agreement was to provide an "annuity" not an "annuity policy" or "annuity contract." An annuity is defined as "'a right to receive fixed, periodic payments, either for life or for a term of years . . . A fixed sum payable to a person at specified intervals for a specific period of time or for life.'" 1997 WL 793315 at * 10 (quoting Black's Law Dictionary, at 90 (6th ed. 1990)). The court found that the parties intentions were the same: that the annuity payments be equivalent to an immediately payable pension as if Complainant had been eligible to retire immediately and receive pension benefits as would any other company retiree.

Since the agreement had not addressed tax consequences, the court examined the agreement's underlying purpose and integrated provisions to "fill what appears to be a gap." Id. at * 12. The court observed that retirees do not pay taxes "upfront", but only as monthly payments are received, while Respondent's purchase of an annuity policy withholding the taxes resulted in Complainant's paying a much higher tax rate than other retirees. The court noted that there were other ways of structuring the settlement that would have avoided this problem. The court held that there was no doubt that Respondent had breached the settlement agreement, that the ALJ's conclusion that there had been no breach was erroneous, and that the Secretary's derivative determination not to seek enforcement was likewise not in accordance with law.

Thus, the court remanded the case to the Secretary for further proceedings, noting that "the Secretary retains the discretion whether or not to seek enforcement, but may not consider the company's actions as set forth in this record to be in compliance with the settlement agreement. In view of the Secretary's inability to enforce, [Complainant] is to have the opportunity to withdraw his motion if he chooses and pursue an action for enforcement in the district court." Id. at * 13.

[N/E Digest XXI B]
ARBITRATION PROCEEDING; RES JUDICATA CLAIM AND ISSUE PRECLUSION

In Paynes v. Gulf States Utilities Co., 93-ERA-47 (ALJ Dec. 3, 1997), Respondent contended that Complainant's ERA complaint was barred by res judicata based on an arbitration proceeding in which Complainant's transfer to a tool room was litigated. The Arbitrator had determined that Respondent's transfer of Complainant to the tool room was invalid as a matter of contract law, but that Complainant's performance was so unsatisfactory as to require a disciplinary demotion to the lowest position with the department. The ALJ reviewed the law of both claim preclusion and issue preclusion, and determined that the arbitration proceeding had no res judicata effect. Claim preclusion was not applicable because Complainant could not have successfully have raised his ERA Section 211 complaint in the arbitration proceeding which was grounded in a breach of contract claim. See Restatement (Second) of Judgments, § 26. Issue preclusion was not applicable because the issue of whether Complainant's actual job performance was not fully and vigorously litigated in the arbitration proceedings, and because the main issue in the arbitration proceeding of the transfer was decided on contract law. See Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979)(four-part standard for applicable of issue preclusion).