In Van Der Meer v. Western Kentucky
University, 95-ERA-38 (ARB Apr. 20, 1998), the ALJ in her
recommended decision had directed release of the DOL decisions in the matter without
comment to the press.
The ARB, although affirming the ALJ's finding on the merits, rejected this recommendation,
finding that it "has no authority to prohibit comment by Respondent, or its attorney, to
the media expressing their opinions of either the ALJ's Recommended Decision and Order or
this
Final Decision and Order." Id. @ 9-10.
In McMahan v. California Water Quality Control Board, San
Diego Region, 90-WPC-1 (Sec'y July 16, 1993), Respondent
was ordered to expunge from its records all memoranda or
reference to a reprimand which had been found to be in violation
of the FWPCA's whistleblower provision, to post written notice
for 30 days advising its employees that the reprimand had been
expunged and that he has been reinstated to his former position,
and to pay Complainant's costs and expenses.
[Nuclear and Environmental Whistleblower Digest XVI G 2 a]
POSTING; ORDER TO POST RESCINDED WHERE SUCH RELIEF WOULD NOT BE
EFFECTIVE
In Doyle v. Hydro Nuclear
Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB
May 17, 2000), the ARB rescinded an earlier order requiring a putative successor company to
post copies of the ARB's decision at its nuclear operations. Respondent argued that it had been
sold, and the putative successor company never reentered the decontamination business thus
rendering a posting requirement unnecessary and ineffective. Complainant argued that this was a
mis-characterization, and that the putative successor company still regularly employees
decontamination technician contractors.
The ARB declined to engage in an analysis of whether the putative successor company
meets the criteria for liability as a successor corporation given that the litigation had already been
prolonged and that Respondent had offered to post a supersedeas bond to secure payment of
damages. In regard to the posting requirement, the ARB found that it was no longer a practical
remedy to require the putative successor corporation to post, or even to impose an alternative
publication in a general circulation newspaper as was required in Smith v. Esicorp, Inc.,
ARB No. 97-065, ALJ No. 1993-ERA-16 (ARB Aug. 27, 1998). The ARB, however, affirmed
its order to require Respondent itself to post the decision at its own facilities.
[Nuclear & Environmental Digest XVI G 2 a]
INJUNCTIVE RELIEF; POSTING OF DECISION; REMEDY IF POSTING NO LONGER
POSSIBLE
In Smith v. Esicorp,
Inc.,1993-ERA-16 (ARB Aug. 27, 1998),
Respondent was ordered to post, for a period of 90 days, the ARB's decision, and an earlier
Secretary of Labor remand decision, in a lunchroom and another prominent place, accessible to
employees at the nuclear facility where Complainant was subjected to harassment. Respondent
represented that it is no longer in business, has no presence at the nuclear plant and would have
no way of assuring that the order for posting the decision can be carried out. Complainant
moved to add Raytheon Corporation as a party respondent, asserting that Raytheon succeeded to
all of Respondent's property and personnel at the plant. Complainant only sought to add
Raytheon as a party for purposes of affirmative and injunctive relief.
The ARB concluded that it would not serve any useful purpose to reopen the record and
take evidence on whether Raytheon meets the tests for successorship liability, only to assure that
the posting relief is carried out. The ARB stated that "[t]he purpose of posting is to
provide notice that whistleblowers will be protected if they are discriminated against. If
[Respondent] is unable to secure posting . . . at the . . . nuclear plant, notification may be
accomplished by publishing the two documents in a local general circulation newspaper. Such an
order brings this longstanding matter to a close and provides [Complainant] more timely relief.
[Editor's note: The case had been before either the OALJ or ARB since 1994]
REMEDIES; EXPUNGEMENT; POSTING
[N/E DIGEST XVI G 2 a]
In Doyle v. Hydro Nuclear
Services, 89-ERA-22 (ARB Sept. 6, 1996), Respondent was ordered to
expunge
from Complainant's records all derogatory or negative information related to
the failure to hire
him, to provide neutral employment references, not to divulge any information
pertaining to not
hiring Complainant or denying him unescorted access to a nuclear facility, and
to post the ARB's
decision.
PRELIMINARY ENFORCEMENT ORDERS UNDER ERA; POST-REINSTATEMENT
PERFORMANCE EVALUATIONS AND REFERENCES
[N/E Digest XVI B 3 and XVI G 2 a]
In McNeice v. Northeast
Nuclear Energy Co., 95-ERA-18 and 47 (ARB July 3,
1996), the Board clarified the Secretary's earlier Preliminary
Order and Order of Remand, which directed Respondent to correct a
1994 performance evaluation relating to Complainant. The Board
stated that the directive only affected that performance
evaluation, and not any performance evaluations subsequent to
Complainant's reinstatement in 1996. The Board noted, however,
that post reinstatement evaluations must not reflect anything
other than a fair and accurate evaluation of the Complainant's
performance.
In addition, the Board noted that the preliminary order
directing Respondent not to give a less than satisfactory
reference regarding Complainant, only related to the period up to
Complainant's 1996 reinstatement. The Board stated that if
Complainant ceases to be employed by Respondent in the future,
Respondent is expected to provide a fair and accurate reference
of Complainant's performance subsequent to the 1996
reinstatement.
NON-ECONOMIC REMEDIES; ORDER OF EXPUNGEMENT OF PERSONNEL
RECORD SHOULD NOT BE OVERLY BROAD
[N/E Digest XVI G 2 a]
In Smith v. Littenberg, 92-ERA-52 (Sec'y Sept.
6, 1995), the Secretary modified the ALJ's order that the
Respondents expunge all derogatory or negative information from
the Complainant's personnel records, limiting the expungement to
negative references relating to his discharge.
RELIEF; POSTING OF DECISION [N/E Digest XVI G 2 a]
In Zinn v. University of Missouri, 93-ERA-34
and 36 (Sec'y Jan. 18, 1996), the Secretary ordered the
Respondent to post on all bulletin board of the Missouri
University Research Reactor, where official documents are posted,
a copy of his Decision and Order for a period of 60 days,
ensuring that it is not altered, defaced or covered.
In Varnadore v. Oak Ridge National Laboratory, 92-
CAA-2, 5 and 93-CAA-1 (ALJ June 7, 1993), the ALJ considered
certain affirmative or structural relief requested by the
Complainant, such a continuing monitoring of Respondent's
operations. The ALJ denied this request because DOE already
provides such oversight, though he did recommend that the
Secretary serve a copy of the final decision on DOE.
The ALJ did approve other creative forms of relief:
Respondent to post a copy of the Secretary's decision
and order for a period of 60 days and take reasonable steps to
prevent tampering with the posting
Respondent to send written notification to each
witness that retaliation against individuals for testifying is
illegal and that if such occurs, a complaint may be filed with
the U.S. Department of Labor, giving the procedures. (the ALJ
found evidence that the Respondent had been keeping track of the
testimony)
[Nuclear & Environmental Digest XVI G 2 b]
AFFIRMATIVE RELIEF
In Marcus v. U.S. Environmental
Protection Agency, 1996-CAA-3 and 7 (ALJ Dec. 15, 1998), Complainant had
been reinstated to a comparable position as the result of a prior DOL whistleblower lawsuit. The
ALJ in the instant action found in her recommended decision that Respondent had again violated
several environmental whistleblower provisions by "badmouthing" him
(e.g., in providing negative references to a reference checker), and by isolating him.
Complainant sought affirmative relief in the form of a detailed order specifically stating all of the
terms of employment that must be undertaken in order to remedy the effects of these adverse
actions. The ALJ agreed that a detailed consent agreement or ALJ order would be necessary.
She noted that "[i]f the parties had been able to successfully integrate Complainant back
into the EPA, the present suit would not have been necessary. Accordingly, I order the parties to
attempt to reach a mutually agreeable plan to integrate Complainant back into the agency."
The ALJ stated that the following concerns must be addressed: (1) finding a way to allow
Complainant to work at the office (Complainant works at home because of allergies; the ALJ
noted that although Complainant has an allergic reaction to EPA's present building, testimony
indicated that a relocation may be forthcoming); (2) ensuring that Complainant's duties are
meaningful; (3) detailing how other EPA employees will be informed of this decision, including
postings, meetings, or any other mutually agreeable method; (4) prohibiting "bad
mouthing" or otherwise providing information or opinions relating to Complainant that
would be potentially damaging to his personal or professional reputation or privacy interests
absent good cause; (5) providing training for Complainant's supervisors and other managers as to
the prohibition of adverse actions against whistleblowers and for guiding EPA managers in how
to deal with situations such as requests for references or for expert testimony.
[N/E Digest XVI G 2 b]
REMEDIES; DENIAL OF ACCESS FLAGS
In McCafferty v. Centerior
Energy, 96-ERA-6 (ARB Sept. 24, 1997), the ARB ordered removal of
denial of
access flags Respondent had placed in the records of several Complainants.
The ARB also
ordered Respondent to inform other entities to which it had written about
denial of access --
another employer and the union local -- that the letter informing them of the
denial of access had
been ruled unlawful retaliation under the ERA.
PRELIMINARY ENFORCEMENT ORDERS UNDER ERA; TYPES OF RELIEF
ENFORCED
[N/E Digest XVI B 3 and XVI G 2 b]
In McCafferty v.
Centerior Energy, 96-ERA-6 (ARB July 15, 1996), the
ALJ issued a recommended decision and order in favor of
Complainants. The Board issued a Preliminary Order directing
Respondent to comply with various forms of relief recommended by
the ALJ: reinstatement of Complainants in accordance with
certain directives by the ALJ; payment of back pay with interest;
removal of denial of access flags from the records of all
Complainants. The Board indicated that it would supplement the
Preliminary Order once the ALJ issued his recommended
supplemental decision and order concerning costs and expenses,
including attorney's fees.
The ALJ had ordered reinstatement of one Complainant -- who
had been denied access to at least one of Respondent's facilities
because of falsification of a self-disclosure questionnaire -- be
conditioned on compliance with NRC regulations. The ALJ held
that if NRC regulations mandated a professional assessment before
reinstatement, that Complainant should be given the opportunity
to pursue the assessment. McCafferty v. Centerior
Energy, 96-ERA-6 (ALJ June 11, 1996).
NON-ECONOMIC REMEDIES; REQUIRING LETTERS TO OTHERS TO CORRECT
THE RECORD
[N/E Digest XVI G 2 b]
In Smith v. Littenberg, 92-ERA-52 (Sec'y Sept.
6, 1995), the ALJ ordered the Respondents to write to the NRC and
an insurance carrier correcting earlier statements to those
entities. The Respondents complained on appeal that this order
was improper and humiliating. The Secretary found the ALJ's
order to be a proper correction of the record.
XVI.G.2.b.
In Zinn v. University of Missouri, 93-ERA-34 and 36
(Sec'y June 20, 1994) (preliminary order), the ALJ had
recommended ordering that the procedures for establishing a
promotion committee for one Complainant should be initiated
within 10 days of the Secretary's final order, and that a second
Complainant should be reinstated to his former positions within
10 days of the Secretary's final order.
The Secretary found that pursuant to 42 U.S.C. §
5851(b)(2)(A) (as amended in 1992), the Secretary was required to
issue "a preliminary order providing the relief prescribed.
. . but may not order compensatory damages pending a final
order." Thus, the Secretary rejected the ALJ's
recommendation that remedies be delayed until up to 10 days after
the Secretary's final order, and ordered the Respondent to comply
with the remedies as described in the ALJ's R.D. and O. without
further delay.