WHISTLEBLOWER NEWSLETTER
United States Department of Labor
Office of Administrative Law Judges Law Library

ADMISSIONS; FAILURE TO HONOR REQUEST FOR DATA NOT AN ADMISSION WHERE OPPOSING PARTY DID NOT REQUEST ADMISSION OR SEEK ORDER TO COMPEL
[N/E Digest VII A 6]

In Seater v. Southern California Edison Co., 95-ERA-13 (ARB Sept. 27, 1996), Complainant contended that Respondent's refusal to provide data on the number of employees who had engaged in whistleblowing activity that were still employed by Respondent constituted an admission. The Board held, however, that since Complainant did not pursue this data by means of a request for admission nor seek an order to compel discovery, there was no admission.

ADVERSE ACTION; RELEVANCE OF TESTIMONY ON RESPONDENT'S CAPACITY FOR SURVEILLANCE
[N/E Digest XIII B 18]

Surveillance of employees, or the creation of an impression of surveillance, for the purpose of monitoring participation in protected activity would be a violation of the ERA's prohibition on interference, or action intended to interfere, with the exercise of protected activity. See 42 U.S.C. § 5851(a).

A witness' mere speculation that management is conducting surveillance, however, does not create such a reasonable perception of surveillance by the complainant that the ALJ must hear testimony regarding the technical potential for such surveillance.

Respondent posted a sign at the facility entrance stating that "For your protection, this facility is electronically monitored by video surveillance." Complainant argued that the sign failed to indicate that Respondent would refrain from subjecting employees to surveillance relative to protected activity. The Board noted that Complainant's argument was misplaced because the burden of proof is on Complainant.

Seater v. Southern California Edison Co., 95-ERA-13 (ARB Sept. 27, 1996).

ATTORNEY CONDUCT; BOUNDARY BETWEEN ZEALOUS AND OVER ZEALOUS ADVOCACY
[N/E Digest IX M 2]

In Seater v. Southern California Edison Co., 95-ERA-13 (ARB Sept. 27, 1996), Complainant argued that he was denied a fair hearing because of the ALJ's alleged bias. The Board rejected Complainant's contention, and concluded with the following advice:

...[T]he ALJ's role in maintaining order and decorum in the courtroom may become an onerous task in some instances. . . . We recognize that the difficulties of distinguishing between the actions of a zealous advocate and those of an overzealous opponent, while attempting to ensure the efficient use of Federal resources in the adjudication of cases before him, may substantially increase the burden on the ALJ. We therefore caution counsel for both parties that denigrating statements regarding opposing counsel and overtly hostile exchanges . . . . , as well as introduction of extraneous issues [e.g.] (comment "for the record," that certain exhibits had been provided to Congressional investigators) serve only to cloud the issues at hand and to delay the completion of the adjudication of this case by the Department of Labor.6/

______

6/ These principles are equally applicable to proceedings before this Board. The parties should also be mindful that reliance on inaccurate factual statements in briefs and motions does not enhance the persuasive value of the party's corresponding contention; it merely delays the decisional process. ...

Slip op. at 3-4 and n.6 (citations omitted).

ATTORNEY FEES; COSTS AND EXPENSES INCURRING DURING APPEAL TO FEDERAL COURT OF APPEALS
[N/E Digest XVI E 4 c]

In Delcore v. W.J. Barney Corp., 89-ERA-38 (ARB Oct. 31, 1996), the Board adopted the reasoning of Blackburn v. Reich, 79 F.3d 1375, 1379 (4th Cir. 1996), in which the court held that "fees related to prosecuting an appeal before the court of appeals are 'costs . . . incurred . . . in connection with the bringing of [a] complaint' under § 5851(b) . . . ." Contra Deford v. Secretary of Labor, 715 F.2d 231, 232-33 (6th Cir. 1983).

BACK PAY; DISCRIMINATING RESPONDENT BEARS BURDEN OF PROVING THAT COMPLAINANT WOULD NOT HAVE BEEN HIRED IF PROPERLY REFERRED FOR ANOTHER JOB; LIABILITY BEGINS ON DATE COMPLAINANT WOULD HAVE BEGUN NEW JOB
[N/E Digest XVI C 2 b]

Where a respondent retaliates against a complainant by refusing to refer that complainant to another employer for possible employment, that respondent bears the burden of proving that the complainant would not have been hired even if he had been referred for the job. If the respondent fails to meet that burden, back pay relief is available for the complainant.

In this circumstance, where the respondent's layoff of the complainant was not unlawful, the backpay period does not begin with the date of the layoff, but the date when he or she would have first begun working on the other job.

See Artrip v. Ebasco Services, Inc., 89-ERA-23 (ARB Sept. 27, 1996).

BACK PAY; LIABILITY ENDS WHEN EMPLOYMENT WOULD HAVE ENDED LAWFULLY
[N/E Digest XVI C 2 b i]

The period of an employer's liability for back pay ends when the employee's permanent employment would have ended for reasons independent of the violation found. A complainant working on a fixed term contract, however, may be entitled to back pay beyond that term if he or she establishes that the employment would have continued beyond the end of the contract. Artrip v. Ebasco Services, Inc., 89-ERA-23 (ARB Sept. 27, 1996).

BACK PAY; PRESUMPTION OF LAST LAID OFF
[N/E Digest XVI C 2 b i]

In Artrip v. Ebasco Services, Inc., 89-ERA-23 (ARB Sept. 27, 1996), the ALJ applied the principle expressed in Nichols v. Bechtel Constr. Inc., 87-ERA-44, slip op. at 9-10 (Sec'y Nov. 18, 1993), aff'd, 50 F.2d 926 (11th Cir. 1995), to apply an assumption that Complainant would have been the last laid off. Respondent proffered that the principles of Dougherty v. Barry, 869 F.2d 605, 614 (D.C. Cir. 1989), should be applied to reduce the award based on the odds that Complainant would not have been the one person retained.

In Dougherty, eight firefighters charged and proved discrimination when two other firefighters were promoted, and the court ruled that a pro rate back pay scheme was appropriate since each would not have received the promotion. In Artrip, however, the record did not establish that only one worker could possibly have continued past the date five of the six contract workers were laid off. The Board found that in view of the uncertainties in the record, the Nichols presumption of last laid off should apply.

BACK PAY; EXTENSION BEYOND LAWFUL LAYOFF PERIOD NOT APPROPRIATE WHEN CHANCES FOR REHIRE SPECULATIVE
[N/E Digest XV C 2 b i]

In Artrip v. Ebasco Services, Inc., 89-ERA-23 (ARB Sept. 27, 1996), after the fixed-term contract of employment ended on a job from which Complainant had been unlawfully denied referral, several workers were rehired, but there was no evidence of direct transfers or promises of future work. This was insufficient evidence to extend the back pay period for Complainant beyond the lawful layoff date.

BACK PAY; DEDUCTION OF UNEMPLOYMENT COMPENSATION; BOARD REJECTS VIEW THAT SUCH DEDUCTIONS ARE A MATTER FOR DISCRETION OF THE TRIAL COURT
[N/E Digest XVI C 2 c ii]

The Board in Artrip v. Ebasco Services, Inc., 89-ERA-23 (ARB Sept. 27, 1996), noted a spilt among the circuits in discrimination cases over whether a deduction of unemployment compensation in regard to a back pay award should be prohibited or left to the discretion of the trial court. The Board noted that the instant case arose in the Fifth Circuit, which follows a minority view that such deductions are discretionary (the court also holds this view in regard to the collateral source rule). Observing that no court had addressed this issue under the ERA or similar whistleblower laws, and that the Secretary of Labor has consistently held that unemployment compensation is not deductible in such cases, the Board held that unemployment benefits are not deductible from gross back pay.

BACK PAY; DEDUCTION FOR SELF-EMPLOYMENT PENSION CONTRIBUTIONS
[N/E Digest XVI C 2 c iii]

Pension income received by a complainant during a back pay period from another source, as opposed to earnings from alternative interim employment, are not deducted from back pay awards. Artrip v. Ebasco Services, Inc., 89-ERA-23 (ARB Sept. 27, 1996). In Artrip, however, the Board agreed with Respondent that a sum earned by Complainant during the relevant period, but allotted by him to self-employment pension plan, should be deducted. The Board stated: "This ... is not a case in which the complainant received pension benefits as assistance during the back pay period based on entitled [sic] in the thermolag job during the same period."

BACKPAY; CALCULATION OF INTERIM EARNINGS; USE OF RATIO TO APPROXIMATE EARNINGS DURING PART OF YEAR
[N/E Digest XVI C 2 c i]

In Artrip v. Ebasco Services, Inc., 89-ERA-23 (ARB Sept. 27, 1996), Complainant's interim earnings were based on his income tax returns, which did not reflect the precise amount he would have earned during the relevant ten month period. The Board indicated that the ALJ's method of multiplying Complainant's yearly earnings by the decimal .833 (the ratio of ten months to twelve months) to approximate the interim earnings was reasonable.

BIAS; FINANCIAL TRANSACTION OF ALJ
[N/E Digest VIII A 5]

In Seater v. Southern California Edison Co., 95-ERA-13 (ARB Sept. 27, 1996), Complainant argued that he was denied a fair hearing because of the ALJ's alleged bias. In this regard, Complainant asserted that the ALJ during the course of the hearing had "entered into a financial arrangement concerning the mortgage on the ALJ's residence with a subsidiary of a parent company having a significant role in the energy industry." The Board found that "the asserted connection between the ALJ and the energy industry was too tenuous to pose a prohibited appearance of impropriety." Slip op. at 3 n.5.

BIAS; ALJ'S IMPATIENCE WITH COUNSEL
[N/E Digest VIII A 5]

In Seater v. Southern California Edison Co., 95-ERA-13 (ARB Sept. 27, 1996), Complainant argued that he was denied a fair hearing because of the ALJ's alleged bias. In this regard, the Board found that the transcript indicated that the ALJ had expressed annoyance and frustration with Complainant's counsel. Nonetheless, the Board did not find bias on the part of the ALJ that deprived Complainant of a fair and impartial hearing, noting that the ALJ had also attempted "to defuse the exceptional level of tension and hostility generated in the courtroom by the issues arising in the case." The Board also found that the ALJ's rulings demonstrated efforts to be even-handed.

CONSTRUCTIVE DISCHARGE
[N/E Digest XIII C]

In Talbert v. Washington Public Power Supply System, 93-ERA-35 (ARB Sept. 27, 1996), the Board considered whether Respondent had rendered Complainant's continued employment so unpleasant or unattractive that a reasonable person would have been compelled to resign. Complainant had been scheduled for transfer out of the reactor operations group because of his poor working relationship with the core design group, and the need for greater cooperation between those groups following an oscillation event. The managers who proposed the transfer made it clear that they would not support Complainant's appointment to a position that would put him in a spokesperson role. The manager into whose group Complainant was to be transferred, however, was not subject to the position of previous managers. That manager also was confident of Complainant's engineering skills, wanted to obtain his services, and believed that he could work with Complainant on how he delivered his message. Before that manager could confirm with Complainant his view that there would be no limitations, Complainant had already resigned and could not be reached although he knew that the new manager was in the process of clarifying that point.

The Board held that Complainant's resignation was premature; that Respondent wished to retain him and was in the process of finding him suitable employment.

DISCOVERY; EXCHANGE OF DOCUMENTS RELATING TO PRIOR INCONSISTENT STATEMENTS BY WITNESS
[N/E Digest VII D 6]

A respondent may not properly withhold evidentiary exhibits solely because such exhibits would be used on cross-examination. A narrow exception exists, however, for evidence of inconsistent statements by witnesses, when introduced solely for the purpose of impeaching witness testimony. Pursuant to 29 C.F.R. § 18.613, evidence of such statements may be withheld, subject to disclosure to opposing counsel at the time the witness is questioned regarding those statements.

Seater v. Southern California Edison Co., 95-ERA-13 (ARB Sept. 27, 1996).

DISCOVERY; DOCUMENTS NOT TIMELY EXCHANGED; ADMISSION PERMISSIBLE WHERE ALJ MADE ERRONEOUS PRE-HEARING RULINGS REGARDING RELEVANCY
[N/E Digest VII D 2]

In Seater v. Southern California Edison Co., 95-ERA-13 (ARB Sept. 27, 1996), the ALJ had rejected several exhibits proffered by Complainant based on their untimely exchange with Respondent. The Board, however, held that in view of the ALJ's erroneous rulings concerning relevancy in a prehearing teleconference, Complainant's failure to make the timely exchange did not constitute a bar to their admission. The Board noted that Respondent's personnel had generated these documents and that Respondent had provided them to Complainant during discovery, thereby undermining any contention of surprise.

DUAL MOTIVE; CLEAR AND CONVINCING STANDARD UNDER CNEPA AMENDMENTS TO ERA; WHEN EMPLOYER'S BURDEN ATTACHES
[N/E Digest XI D 2]

Under the CNEPA amendments to the ERA, "the clear and convincing evidence standard applies only if a complainant establishes by a preponderance of the evidence that the adverse action was motivated, at least in part, by retaliatory intent; the amended Section 211(b)(3) of the ERA heightens an employer's burden of proof only under the dual, or mixed, motive doctrine. Section 211(b)(3)(D) of the ERA, codified at 42 U.S.C. § 5851(b)(3)(D)...." Seater v. Southern California Edison Co., 95-ERA-13, slip op. at 21 (ARB Sept. 27, 1996)(case citations omitted).

DUAL MOTIVE; CLEAR AND CONVINCING EVIDENCE
[N/E Digest XI D 3 d]

In Talbert v. Washington Public Power Supply System, 93-ERA-35 (ARB Sept. 27, 1996), Respondent established that it would have transferred Complainant even if Complainant had not engaged in protected activity where Complainant's decisions about reactor core operators had contributed to an oscillation event (the first in many years) that resulted in the reactor core having to be shut down manually. Complainant in the past had a strained relationship with the reactor core design group. In evaluating the oscillation event, Respondent determined that the groups that operated the reactor and that designed the reactor core should have closer cooperation because the question had arisen whether the event resulted from operator error or too limited operating margins due to core design. Complainant's presence made such cooperation difficult, and the decision was made to transfer him even though he was not solely responsible for the strained relationship. The oscillation event had been very serious; thus, in its aftermath Respondent had a compelling reason to transfer Complainant even if he had never engaged in protected activity.

DUAL MOTIVE ANALYSIS; WHEN INVOKED BY DIRECT EVIDENCE
[N/E Digest X D 2]

The dual motive analysis is used where the complainant produces "'evidence that directly reflects the use of an illegitimate criterion in the challenged decision.' [i.e.,] evidence showing a specific link between an improper motive and the challenged employment decision." Talbert v. Washington Public Power Supply System, 93-ERA-35, slip op. at 4 (ARB Sept. 27, 1996), quoting Carroll v. U.S. Dep't of Labor, No. 95-1729, 1996 U.S. App. LEXIS 3813 at *9 (8th Cir. Mar. 5, 1996), quoting Stacks v. Southwestern Bell Yellow Pages, Inc., 996 F.2d 200, 202 (8th Cir. 1993).

In Talbert, the Board continued that "[e]vidence of actions or remarks of an employer tending to reflect a discriminatory attitude may constitute direct evidence. ... such evidence does not include stray or random remarks in the workplace, statements by nondecisionmakers or statements by decisionmakers unrelated to the decisional process." Id., slip op. at 4 (citations omitted).

EVIDENCE; RELEVANCY OF TECHNICAL MERIT OF COMPLAINANT'S SAFETY CONCERN; LIMITATIONS ON ADMISSION OF RELEVANT AND PROBATIVE EVIDENCE
[N/E Digest VII D 2; X G; XI E 7]

In Seater v. Southern California Edison Co., 95-ERA-13 (ARB Sept. 27, 1996), Complainant argued that the ALJ committed error in the exclusion of evidence, on relevancy grounds, proffered regarding the technical merit of Complainant's safety concerns. The Board agreed with Complainant that such evidence was relevant in regard to Respondent's motive -- the more credence given to Complainant's theory within Respondent's facility and elsewhere in the nuclear industry, the more likely it is that Respondent's management believed Complainant's theory would cause tension and would have wanted to cause Complainant's prompt departure. The Board ruled that with regard to the merits of Complainant's view of the technical issues, "it is adequate, for purposes of providing evidence relevant to the issue of retaliatory intent, to establish that others having expertise in this technological area found [Complainant's] view to have merit. The question of who is actually correct regarding the competing views about [the technological issue] is not germane to the retaliatory intent issue. The ALJ may therefore find it appropriate to exclude from consideration 'unduly repetitious' evidence concerning the technical merits of [Complainant's] view on [the technological issue] in conducting the proceeding on remand, pursuant to 29 C.F.R. § 24.5(e)(1) and Section 7(c) of the Administrative Procedure Act, 5 U.S.C. § 556(d)." Slip op. at 6 (citations omitted).

The ALJ had expressed concern about unduly burdening the record. In a footnote, the Board held that 29 C.F.R. § 24.5(e)(1) is controlling over the OALJ Rules of Practice and Procedure rule of evidence at 29 C.F.R. § 18.403 in regard to the exclusion of relevant evidence. Section 18.403 would permit exclusion of relevant evidence in certain circumstances including "undue delay, waste of time, or needless presentation of cumulative evidence." Section 24.5(e)(1), however, does not allow for exclusion of probative evidence unless it is "unduly repetitious". The Board noted that this section "is consistent with the nature of the evidence presented in a circumstantial evidence case of retaliatory intent, some of which may appear to be of little probative value until the evidence is considered as a whole...", and "is also in accord with Section 7(c) of the APA, 5 U.S.C. § 556(d)." Slip op. at 6 n.8.

EVIDENCE; RETALIATORY INTENT CASE REQUIRES FULL PRESENTATION OF BROAD RANGE OF EVIDENCE
[N/E Digest X C; XI E 3]

In retaliatory intent cases that are based on circumstantial evidence, ... fair adjudication of the complaint 'requires full presentation of a broad range of evidence that may prove, or disprove, retaliatory animus and its contribution to the adverse action taken.' Timmons v. Mattingly Testing Servs., Case No. 95-ERA-40, ARB Dec., June 21, 1996, slip op. at 10-11 [footnote omitted]; see generally K.C. Davis, Administrative Law, 2d Ed., Vol. 3, Ch. 16, Evidence (1980)."

Seater v. Southern California Edison Co., 95-ERA-13, slip op. at 5 (ARB Sept. 27, 1996).

EVIDENCE; ALJ MAY LIMIT PRESENTATION OF ADDITIONAL EVIDENCE WHERE PROFFERER CANNOT IDENTIFY WHAT SALIENT POINTS WOULD BE ADDED
[N/E Digest VII D 2]

In Seater v. Southern California Edison Co., 95-ERA-13 (ARB Sept. 27, 1996), Complainant elicited testimony and submitted documentary evidence that tended to show that Respondent may have been interested in garnering favor with NRC officials. There was not necessarily a connection, however, between that interest and Complainant's safety concerns or the adverse action being taken against Complainant. Thus, where Complainant was not able to identify what salient points could be established by the presentation of further evidence on this issue, the ALJ did not err in limiting further presentation of evidence on this allegation.

The Board noted that Complainant had filed a motion to supplement the record on this collusion allegation with a magazine article concerning the relationship of the NRC to the nuclear industry. The Board denied the motion between the article did not provide evidence that would link any interest by Respondent's management in garnering favor in regard to the safety issue raised by Complainant.

EVIDENCE; EFFECT OF COMPLAINANT'S TERMINATION ON WORKPLACE
[N/E Digest XI E 12]

In Seater v. Southern California Edison Co., 95-ERA-13 (ARB Sept. 27, 1996), the Board held that the ALJ erred in limiting, on relevancy grounds, the parties' presentation of evidence in regard to Complainant's argument that the laboratory in he worked in as a contractor and related training program suffered as a result of Complainant's termination from the laboratory. The Board held that "[i]n the instant case, ...evidence of incidents occurring or conditions developing in the ... laboratory and training program as a result of [Complainant's] accelerated departure may provide valuable indicia of the supervisory mindset at the pertinent time." The Board also held that the ALJ erred in excluding a document pertaining to the qualifications of laboratory personnel.

EVIDENCE; PROBATIVE VALUE OF EXPERT WHOSE PAYMENT IS CONTINGENT ON OUTCOME OF LITIGATION
[N/E Digest X E]

In Seater v. Southern California Edison Co., 95-ERA-13 (ARB Sept. 27, 1996), the ALJ excluded a proposed expert witness on the question of whether surveillance by Respondent was possible on the ground that the witness' objectivity was so questionable as to be of little probative value. The witness had made statements indicating sympathy toward Complainant and antipathy toward Respondent, and indicated that he intended to discount his fee if Complainant did not prevail. The Board agreed with the ALJ that the witness' ability to present reliable testimony in the case, but stated that the appropriate course would have been to admit the evidence and consider the reliability of the testimony when weighing the evidence. The Board found the error harmless, however, because of the lack of evidence on surveillance generally made Respondent's capability to engage in surveillance unimportant. Such testimony would be relevant, however, if Respondent had contended that such surveillance was not technically possible.

The Board also noted the impropriety of contingent fee arrangements for expert witnesses.

EVIDENCE; LACK OF OPPORTUNITY FOR RESPONDENT TO DEPOSE WITNESS NOT GROUND FOR DENIAL OF TESTIMONY WHERE RESPONDENT WAS PROVIDED A WRITTEN STATEMENT OF PROPOSED TESTIMONY
[N/E Digest X E 4]

In Seater v. Southern California Edison Co., 95-ERA-13 (ARB Sept. 27, 1996), the ALJ refused to allow the testimony of a severely ill witness to be taken by telephone before Respondent was given an opportunity to depose that witness on the ground that without that opportunity, Respondent would be deprived of an adequate opportunity to respond to the witness' testimony. The Board held that a statement signed by the proposed witness given to Respondent one week prior to the hearing provided it with notice of the matters on which the witness could be expected to testify. The Board also noted that the expected testimony concerned matters about which Respondent should have been readily able to frame a rebuttal response.

EXPERT WITNESS; FEES FOR EXPERT WHOSE TESTIMONY WAS REJECTED
[N/E Digest XVI E 6]

In Artrip v. Ebasco Services, Inc., 89-ERA-23 (ARB Sept. 27, 1996), Complainant enlisted an expert to testify regarding lost earnings. The ALJ did not credit the testimony because the calculations were based merely on assumptions and were inaccurate. The ALJ, however, included the expert's bill as expense reasonably incurred by Complainant. The Board held that "[i]t was not unreasonable in this case for [Complainant] to enlist an expert to make computations and projections based on his theory of back pay liability, even though his theory was ultimately rejected." See 42 U.S.C. § 5851(b)(2)(B).

PROTECTED ACTIVITY; FAILURE TO FOLLOW ESTABLISHED CHANNELS OR CIRCUMVENTION OF SUPERIOR
[N/E Digest XII D 1 d]

An employer may not, with impunity, discipline an employee for failing to follow the chain-of-command, failing to conform to established channels or circumventing a superior, when the employee raises a health or safety issue. ... Such restrictions on communication would seriously undermine the purpose of whistleblower laws to protect public health and safety." Talbert v. Washington Public Power Supply System, 93-ERA-35, slip op. at 8 (ARB Sept. 27, 1996) (citations omitted).

PROTECTED ACTIVITY; MANNER OF EXPRESSION
[N/E Digest XII C 6]

In Talbert v. Washington Public Power Supply System, 93-ERA-35 (ARB Sept. 27, 1996), Complainant's manner of raising a safety concern was not so disruptive as to be indefensible under the circumstances, and therefore did not lose protection under the ERA even though Respondent felt that Complainant should have raised the concern through a "Problem Evaluation Report" or by bringing it to management's attention "at an opportune time, quietly and privately." Complainant had raised a germane concern during a "question and answer" period. Complainant's raising of the concern, however, was problematic for Respondent because it contradicted the message Respondent was trying to convey. The NRC has expressed concern that engineers improperly felt that emergency operating procedures (EOP) were merely guidelines, and Complainant's question was premised on a certain EOP being, in his view, unsafe. The timing was "poor" in Respondent's view because the "message" during the meeting had been strict compliance with the procedures. The Board, however, found that there was nothing objectively disruptive about Complainant's question under the circumstances.

PROTECTED ACTIVITY; UNDER ERA, NEED NOT HAVE DIRECT EFFECT ON NUCLEAR SAFETY; COMPLAINANT NEED NOT DETERMINE WHETHER HAZARD HAD ALREADY BEEN DISCOVERED BY RESPONDENT OR REPORTED TO NRC
[N/E Digest XII C 5]

From McCafferty v. Centerior Energy, 96-ERA-6 (ARB Oct. 16, 1996):

It is not necessary, in order for an employee's action to be considered protected under the ERA whistleblower provision, for that action to have a direct effect upon nuclear safety. Thus, for example, it matters not that an employee complains about a hazard that has already been corrected, or complains to the NRC about a condition that the employer is already aware of. The complaint may still be considered protected activity. If, in order to come within the protection of the ERA's whistleblower provision, an employee had to determine whether the condition he or she wanted to report had already been discovered by the employer, or was already being addressed by the NRC, employees would be discouraged from bring potentially significant complaints to the attention of authorities. If [Respondent's] theory were correct, an employer who had created a nuclear hazard and had been cited for it by the NRC, could retaliate with impunity against an employee who belatedly reported that violation to the NRC. The language of Section 211 does not require such a far-fetched result. ...[7]

______

[7] That is not to say that an employer's actions to correct a hazard are not relevant in a retaliation case. The fact that a hazard has already been addressed by an employer before an employee complains about it might be highly relevant to the issue of the employee's motive to retaliate.

REASONABLE APPREHENSION REQUIREMENT UNDER STAA
[STAA Digest V A 4 b iii]

In Brown v. Wilson Trucking Corp., 94-STA-54 (ARB Oct. 25, 1996), the issue was whether Complainant had a reasonable apprehension of serious injury to himself or the public when he refused to transport and pump out a drum of hazardous material, after having been exposed to the material on a previous occasion. The Board did not question Complainant's good faith belief that he could again suffer exposure to the hazardous substance, but held that "the employee's belief must be objectively reasonable, not simply subjectively made in good faith." Slip op. at 2 (citation omitted). The Board agreed with the ALJ's determination that Complainant did not have a reasonable apprehension of serious injury -- Complainant had been fully trained, had made numerous other deliveries without incident, and had caused the prior spill by failing to follow proper procedure.

SETTLEMENT AGREEMENT; ENFORCEMENT; DOL JURISDICTION
[N/E Digest XVII G 4]

In Ing v. Jerry L. Pettis Veterans Affairs Medical Center, 96-ERA-32 (ALJ Sept. 4, 1996), the proceeding involved a claim of violation of a prior settlement agreement in Case No. 95-ERA-6, and was viewed as an enforcement proceeding by Complainant. Respondent moved for dismissal based on lack of jurisdiction because the settlement contained no provision or clause for retention of jurisdiction by the Department of Labor. Complainant's counsel acknowledged that he did not oppose the motion or have any good cause or otherwise why the motion for dismissal should not be granted.

In his recommended dismissal, the ALJ observed that the statute and regulations provide that enforcement actions are appropriate in United States District Court, and that by implication, the Secretary's decision in Williams v. Public Service Electric & Gas Co., 94-ERA-2 (Sec'y Apr. 10, 1995), indicates that if a settlement agreement does not contain a retention of jurisdiction clause, DOL does not have such jurisdiction. The Board ordered dismissal without comment. Ing v. Jerry L. Pettis Veterans Affairs Medical Center, 96-ERA-32 (ARB Sept. 27, 1996).

STAY OF PRELIMINARY ORDER OF RELIEF UNDER ERA
[N/E Digest XVI B 6; XVI C 1 d]

In McCafferty v. Centerior Energy, 96-ERA-6 (ARB Oct. 16, 1996), Respondents sought an order staying a preliminary order that Respondent comply with the relief ordered by the ALJ in his Recommended Decision and Order. The Board, noting that this matter was a bit unusual in that it involves a preliminary agency order rather than a final order, applied the four part test of State of Ohio ex rel. Celebrezze v. N.R.C., 812 F.2d 288, 290 (6th Cir. 1987) in denying the motion. The Board found neither a strong or substantial likelihood of success by Respondent on review of the merits, no strong showing of irreparable harm ("mere" financial loss of back pay not sufficient to establish irreparable harm; Complainants not shown to be judgment proof; since power plant is not currently in outage, unlikely that Complainants would be immediately reinstated), but a strong public interest in favor of preliminary orders in ERA cases.

STIPULATIONS; AGREEMENT BETWEEN COUNSEL ON TRIAL PROCEDURE
[N/E Digest X H]

In Seater v. Southern California Edison Co., 95-ERA-13 (ARB Sept. 27, 1996), Complainant objected to receipt of one of Respondent's exhibits, at which point Respondent's counsel reminded the ALJ of the parties' agreement the previous day when Respondent waived objection to one of Complainant's proffers in exchange for Complainant's agreement not to object to the variety of exhibits now being offered by Respondent. The ALJ commented that it was not his role to enforce contracts between counsel. The Board noted "that the parties are considered to be bound by their stipulations. See, e.g., 29 C.F.R. §§ 18.17, 18.51." Slip op. at 15-16 n.25.

WITNESSES; SENSITIVITY TO STATE OF HEALTH IN REGARD TO TESTIFYING
[N/E Digest VII D 6]

In Seater v. Southern California Edison Co., 95-ERA-13 (ARB Sept. 27, 1996), the Board held that the ALJ's ruling that a proposed witness for Complainant would be allowed only if the witness' deposition was taken in person, either for discovery or in lieu of hearing testimony, failed to accommodate the witness' critical state of health. Complainant's assertion at the hearing that the witness' condition would be adversely affected by unrestricted, in-person questioning was substantiated by a physician's statement. See 29 C.F.R. §18.611 (ALJ should control mode and order of questioning of witnesses); 29 C.F.R. § 18.15 (authority of ALJ to restrict conditions of discovery).

In this regard, the Board found misplaced Complainant's reliance on the Americans with Disabilities Act. The Board also noted that Section 501 of the Rehabilitation Act provides for access for handicapped individuals to Federal agency proceedings. Neither of these statutes, however, controls the issue at hand--how to strike a balance between the due process rights of the parties to the case.

WITNESSES; TAKING OF TESTIMONY BY TELEPHONE
[N/E Digest VII D 6]

Although neither the procedural regulations governing DOL whistleblower proceedings, 29 C.F.R. Part 24, nor the general OALJ rules of practice, 29 C.F.R. Part 18, provide for the taking of testimony by telephone, such practice is permissible in certain circumstances. Seater v. Southern California Edison Co., 95-ERA-13 (ARB Sept. 27, 1996). In Seater, telephonic testimony was appropriate where the proposed witness' state of health precluded unrestricted, in-person questioning.

The Board stated that "[a]lthough telephonic testimony does not provide the opportunity for observation of the witness that is provided by in-person testimony, it does provide more opportunity for observation of the witness than does a deposition submitted in lieu of such testimony." Slip op. at 14 (citation omitted). The Board found that since the proposed witness was an employee of Respondent -- the party which will cross-examine that witness--"the requirement of an in-person appearance at hearing is unnecessary to impress upon the witness the seriousness of the matter in which he is giving testimony." Slip op. at 15 (citation omitted).

In a footnote, the Board noted that "[t]elephonic testimony should be taken with specified safeguards to reliability in place, e.g., a notary/court reporter present with the witness to administer the oath or affirmation pursuant to Section 18.603, the recording of the witness testimony on videotape, in addition to transcription of the testimony by the court reporter at the hearing site...." Slip op. at 15 n.24 (citations omitted).

WITNESSES; INTIMIDATION AS EVIDENCE OF HOSTILITY TOWARD PROTECTED ACTIVITY
[N/E Digest XI E 3]

In Seater v. Southern California Edison Co., 95-ERA-13 (ARB Sept. 27, 1996), Complainant contended that Respondent demonstrated its hostility toward protected activity by basing its policy toward its employees appearing as witnesses in the case on the content of their testimony. The Board, however, found that this contention was not supported by the record, which indicated that Respondent paid all employees that appeared at the hearing their regular salary, but limited reimbursement for expenses to only those employees appearing as witnesses for Respondent. The Board indicated, however, that its rejection of the contention should not be considered indicative that it does not consider intimidation of witnesses to be a serious matter.

WITNESSES; REQUIREMENT THAT ALJ MAKE FINDINGS REGARDING WITNESS DEMEANOR
[N/E Digest X E 2]

An ALJ should provide findings concerning witness demeanor in connection with resolution of conflicts in the pertinent controverted testimony. In resolving conflicts in testimony, however, the ALJ may also rely on factors related to the content of the witnesses' testimony, such as internal inconsistency, inherent improbability, important discrepancies, impeachment and witness self-interest. Seater v. Southern California Edison Co., 95-ERA-13 (ARB Sept. 27, 1996).