Katherine Brittin, the Director of the Audits and Assessments Office at LANL (TR 882), explained that the purpose of AA-2 is to provide management with independent and objective evaluations of the status of the environmental, safety, health, security and quality assurance programs within the Laboratory. (TR 825)

   Dennis Derkacs was the group leader of AA-2 through February of 1997. (EX W at 4-5) His duties included supervising the employees in the group, making assignments and managing the Internal Assessment Program. (EX W at 5-6) James Loud took over the role of group leader of AA-2 in March of 1997. (TR 974)

   Mr. King, Mr. Frostenson and Mr. Loud indicated that if there were imminent safety issues uncovered, they should immediately be brought to the attention of members of the assessed organization. (TR 606, 718, 1165-1166) This way, the members of the assessed organization can begin addressing those issues before the assessment report comes out. (TR 606)

   According to Complainant, a process was established whereby he would "co-manage the assessment." (TR 1129) Complainant stated that he co-managed the assessments in relation to the quality assurance topic as it related to the assessment. (TR 1129) He further explained that he assisted Mr. Griffin in the planning and scheduling. (TR 1130) He, along with Mr. Griffin, would introduce the quality assurance topic and address the quality assurance aspects of the assessment. (TR 1130) He would also make a special out-brief specifically just for the topic of quality assurance. (TR 1130) Complainant stated that Mr. Griffin gave him full authority to deal with the QA part of the assessment. (TR 1120)

   However, Mr. Derkacs stated that he never appointed anybody, including Complainant, an assessment co-team leader for an independent assessment. (EX W at 11-13) He stated that no one else would have the authority to appoint a co-team leader while he was the group leader. (EX W at 13) However, Mr. Derkacs did explain that QA audit leader would be a fair term to use for Complainant, in connection with the RAB Audit Logs, but that was not the same thing as a team leader at LANL. (EX W at 24) Complainant had significant responsibilities because of his subject matter expertise in the area of quality assurance. (EX W at 22)

   Complainant pointed out that the RAB Audit Logs, which provide evidence and documents the certification to the ISO 9000 quality requirements, indicate that he was the lead auditor on June 3, 1996, June 27, 1996, September 14, 1996 and October 7, 1996. (TR 184-185; CX 17) The logs were signed by Mr. Derkacs, who was Complainant's group leader at the relevant times. (TR 184-185) The logs also indicate that Complainant was a lead auditor on July 16, 1997, and it was signed by Mr. Loud, who was Complainant's group leader at that time. (TR 185) Complainant explained that the term "lead auditor" used in the RAB Audit Logs is equivalent to a team lead assessor in AA-2 parlance, and that the AA-2 logs should list him as a team leader for some of the assessments for which he is listed as a lead auditor in the RAB Audit Logs. (TR 348-349; CX 17)

   Mr. Derkacs explained that the RAB Audit logs were to document Complainant's participation in audits and assessments so that he could be certified a QA audit leader. (EX W at 15; CX 17) He further explained that Complainant had a leadership role for QA, but he was not a team leader. (EX W at 19) According to Mr. Derkacs, for AA-2 purposes, Complainant was the subject matter expert for quality assurance. (EX W at 19) For the purpose of the RAB certification, Complainant had the total responsibility for the QA. (EX W at 19-20). Mr. Derkacs explained that by signing the RAB Audit Logs, he was saying that, for purposes of that organization, Complainant was fulfilling a role that was similar enough to what they were looking for. (EX W at 35)

B. BUS Assessment

You in turn responded by stating that we should not disclose to the public the information revealed by the assessments since this information can be considered privileged and confidential. I pointed out that Secretary O'Leary has announced that the Laboratory no longer operates under the veil of secrecy. Besides there are professional ethics, moral and legal issues that may impact us if we knowingly suppress potentially damaging and life threatening information.

(CX 2) According to Complainant, Mr. Derkacs was "very nervous" that he would go to the public with his concerns. (TR 77) Complainant sent a copy of the memo to Katherine Brittin, and to Mr. Jackson. (TR 79) Ms. Brittin did not respond to Complainant's memo. (TR 86, 837)

   Ms. Brittin received Complainant's March 22, 1996 memo to Mr. Derkacs. (TR 917) She indicated that the memo did reference health and safety issues. (TR 917-919) However, Ms. Brittin noted that Complainant did not tie the health and safety issues to the findings he had in his report. (TR 920) Ms. Brittin did not discuss the health and safety issues with Complainant, although she did discuss them with Mr. Derkacs. (TR 920-921) Ms. Brittin explained that it is her job "to advise management about the state of the environmental, safety and health programs", and it is "management's job to ensure protection." (TR 922)

   Ms. Brittin stated that if Complainant had major concerns about health and safety issues, she would expect him to raise them immediately with the Business Operations Division. (TR 863) She also reiterated that if Complainant had significant health and safety problems, he should have raised them with her. (TR 917)

care if it ever got out. (TR 772) Mr. Frostenson stated that he did not change the factual content of the report, but that he reorganized the material in the report so that it was understandable. (TR 773-774) He believed he included all of Complainant's findings and observations, and that he did not water down Complainant's findings. (TR 774) Mr. Frostenson did not recall any particular significant safety concerns in the report. (TR 777)

   Siegfried S. Hecker, the Laboratory Director, issued a memo dated July 15, 1996. (CX 6) The memo stated, in relevant part, as follows:

The purpose of this memorandum is to reiterate and clarify the message that I presented to you this morning in our LLC meeting. As a result of the serious safety incident last week, I am instituting "Safety First Days" at the Laboratory. The features of "Safety First Days" were outlined in the viewgraph hardcopies that were distributed to you this morning. In this memorandum I want to focus specifically on two of the key elements: temporary suspension of work pending internal safety reviews and obtaining a clear and formal commitment to safety from all workers at this site.

By 8:00 a.m. Tuesday, July 16, 1996, all work at the Laboratory will be temporarily suspended. We are not shutting down our facilities but rather pausing so we can step back and reexamine the way we all approach our work. During this suspension, all on-site workers (University of California employees and all subcontractor employees) will review the safety of their current operations with their supervisors. This review will include work planning, hazards analysis, safety procedures, and training. The key questions are: Are necessary policies and procedures in place for the safe performance of current operations? Are workers properly trained to carry out these procedures? Are workers actually following procedures they are trained to use? Please note that this temporary suspension is not intended to determine the adequacy of procedures for current operations but rather to ensure that procedures exist and are being followed.

(CX 6)

   On July 15, 1996, Complainant, as well as all other individuals at LANL, were asked to sign an Employee Safety Commitment ("ESC") form. (TR 100) On July 17, 1996, Complainant sent a memo to Mr. Frostenson setting forth his concerns with the ESC. (TR 100; CX 7) Complainant would not sign the ESC without annotating it, because in his opinion, it required that he take responsibility not only for himself, but also for his associates and line management. (TR 101) Complainant felt "uncomfortable" with signing the ESC as it did not address the responsibilities of management to ensuring workplace safety. (TR 101) Complainant referenced the configuration/as-built problem and the fact that there was no QA program in place. (TR 101-102) According to Complainant, Mr. Frostenson made a comment that if he did not sign the ESC, he would be fired. (TR 286)

   Mr. Derkacs responded to Complainant's memo in a memo of his own dated July 22, 1996. (TR 103; CX 8) He indicated that Complainant's questions deserved review,

and he would forward those questions to Ms. Brittin. (TR 104) Complainant has not heard from Ms. Brittin with regards to the ESC. (TR 104)

   On July 29, 1996, LANL issued a news release entitled "LABORATORY ANNOUNCES COMPLIANCE WITH CLEAN AIR ACT". (CX 9) The news release announced that LANL had notified the DOE that it could demonstrate compliance with radioactive air emissions requirements of the Clean Air Act. (CX 9) Complainant first saw the news release on July 30, 1996. (TR 105) Based upon his knowledge of the configuration program and the overall quality assurance program at the Laboratory, Complainant found the claims being made by LANL to be deceptive. (TR 105-106) He felt "very concerned" and he also felt that there was a "compelling need to make things right in the public eye and for the public's benefit." (TR 106) Complainant felt that he "needed to blow the whistle." (TR 106)

   The "last straw" that made Complainant decide to blow the whistle was an article that appeared which described the incident involving a graduate student who received an electrical shock while working at the Laboratory. (TR 106) According to Complainant, management indicated that they were starting to question the effectiveness of the audit and assessment function because they relied on them to provide information about problems. (TR 106-107) Complainant explained that from his past experience in the nuclear industry, "that told [him] that somebody was looking for a scapegoat and that scapegoat was the audit and assessment function." (TR 107) As the concerns related to the quality assurance program, Complainant felt that "it pointed the finger right back at [him] because [he] was the one individual in the Audit and Assessment Group that focused on assessing and evaluating the effectiveness of the quality assurance program across the Laboratory." (TR 107)

   After accumulating information, Complainant decided he was on firm footing to blow the whistle. (TR 107-108) Complainant drafted a statement dated October 7, 1996, which set forth his concerns. (TR 108; CX 27) He tried to convey that many, if not all, of the problems could be attributed to the fact that an effective quality assurance program had not been implemented. (TR 122) Another related observation in the statement is that LANL had been informed in many ways about the potential problems that come about by not having a fully implemented effective quality assurance program. (TR 122) Complainant explained that quality assurance is applicable to the Clean Air Act activities. (TR 122) Complainant stated that there was a culture, behavior and attitude of individuals at LANL whereby they were not willing to embrace the QA requirements. (TR 124)

indicated that records for the emissions calculations for a complete year could not be located. (TR 131) Complainant had written an assessment for TA-21, dated March 28, 1995, which included a critique of the tritium air monitoring system. (TR 132; EX G) He also noted that there was a potential structural weakness with the plutonium facility, and that there was a potential for gas and/or liquid leakage. (TR 128-129)

   According to Complainant, his concerns affected public health and safety because, through his assessments, he found problems with the configuration of the radionuclide monitoring system. (TR 1148) He explained that the "individuals responsible for those areas were unaware of the requirements of quality assurance as applied to those particular monitoring instruments and how to ensure that procedures were in place and prior to the use of monitoring equipment." (TR 1148) Complainant agreed that if there were a power outage because somebody bore through the wall, it could affect the monitoring of radionuclides that could escape to the public. (TR 1149)

4. Be responsible for ensuring due care to prevent improper disclosure of in-strict confidence or privileged information acquired in the course of their duties, and shall not use such information for personal gain, nor in a manner which would be contrary to law or detrimental to the welfare of the University of California, the Los Alamos National Laboratory, or the Audits and Assessments Office.

(CX 15) Complainant took issue with items two, three and four, because he believed the first commitment of the Laboratory and the University of California is to ensure public safety. (TR 310) He found the statements calling for loyalty in all matters to the University of California, LANL and the Audits and Assessments Office to be "very confining and limiting." (TR 311)

   Complainant asked to speak with Congressman Richardson and Senator Bingaman after he sent them copies of his October 8, 1996 statement, but he did not receive a response. (TR 288) However, he also indicated that at some point, he did have an opportunity to speak with them about his concerns. (TR 289) Complainant did not personally give a copy of the statement to the Laboratory, and no one in line management ever discussed the statement with him. (TR 290-291)

   James Coughlan, the LANL Program Director at CCNS, stated that Complainant contacted him sometime after July 30, 1996, and he met with Complainant "up to a half a dozen times." (TR 401) Mr. Coughlan explained that the substance of the meetings with Complainant "pertained to quality assurance programs at Los Alamos" in general, and specifically to "quality assurance programs relative to Clean Air Act compliance." (TR 402) He was informed by Complainant that "essentially because quality assurance is an integral part of Clean Air Act compliance and that those quality assurance programs were inadequate, that essentially the Laboratory was not in compliance with the Clean Air Act even after it claimed it was." (TR 402)

   According to Mr. Coughlan, in April of 1996, Judge Mechem ruled that LANL was not in compliance with the Clean Air Act, and he directed the parties to negotiate. (TR 402) A settlement conference took place on October 28, 1996, before Judge DeGiacomo. (TR 404) At that time, CCNS submitted a document to Judge DeGiacomo, at his request, outlining their position. (TR 404) One of the attachments to that document was Complainant's October 7, 1996 statement. (TR 405; CX 27) Mr. Coughlan stated that he personally had no way of checking Complainant's accuracy before submitting Complainant's statement to Judge DeGiacomo. (TR 418) However, he did believe Complainant's statement was corroborated by the court ruling. (TR 421-422) Mr. Coughlan stated that, as far as he knew, nobody from CCNS distributed Complainant's statement. (TR 414)

   With regards to Complainant's October 7, 1996 statement, Mr. Frostenson stated that, in his experience, QA assessors are not demoralized or reluctant to write up the true severity of their findings. (TR 780; CX 27; EX N) He also stated that neither himself, nor anybody on his team, has ever been reluctant to write up the true severity of their findings or downplayed the seriousness of operational deficiencies. (TR 780)

   Ms. Brittin saw Complainant's statement, after it was faxed to her office from the Public Affairs Office, which had received it from a reporter. (TR 870) Ms. Brittin gave the statement a cursory reading, as she had personal matters to attend to, and she never discussed it with Complainant. (TR 871) However, she stated that she did briefly discuss it with Mr. Loud. (TR 871-872)

   Ms. Brittin noted that in Complainant's statement, he claimed that he had written an assessment for TA 21 which included a critique of the tritium air monitoring system, that sat on the Director's desk for over a year. (TR 906; EX N; CX 27) Ms. Brittin indicated that the final assessment report for the assessment Complainant referred to went out on March 29, 1995, five months after she arrived at LANL. (TR 906-907; EX G)

   Ms. Brittin stated that she did not have a concern with Complainant going to CCNS or being involved with the Clean Air Act lawsuit. (TR 961) She added that she would have a concern if Complainant was "using our material if it's connected with a lawsuit." (TR 962)

D. Santa Fe New Mexican Article

the Laboratory for them to determine how best to handle that information." (TR 593-594)

   At some point, Ms. Brittin did see the article in the Santa Fe New Mexican. (TR 872; EX E; CX 10) She was concerned that similar assessment materials were in the paper, that the assessments were considered for internal use only, and that assessors were giving press interviews which did not appear to have been through official LANL channels. (TR 873) She was also concerned that Complainant was quoted as saying that the internal audit and assessments process was not independent or functioning. (TR 873) Ms. Brittin explained that if the assessed organizations do not think the assessors can be objective and fair and give them a balanced perspective, then they will not rely on the reports. (TR 874)

E. Santa Fe Reporter Article

   Complainant was next quoted in an article from the Sante Fe Reporter entitled "The Truth About the Stacks", which appeared in the January 15-21, 1997 edition. (TR 144; CX 11; EX D) Complainant explained that the article tried to "characterize the facets of the true status of the air emissions program as it is at the Laboratory." (TR 145) It was noted in the article that Complainant found that two technicians compiling air emissions data at TA-21 were not using the same methodology to calculate emissions, and that records for the emissions calculations for a complete year could not be located. (CX 11; EX D) It was also noted that Complainant found a defect in the concrete walls of the plutonium processing facility, and that gases could escape the building without being recorded by the air monitoring system. (CX 11; EX D) Complainant was quoted as follows:

The Lab is accustomed to doing what it wants without being held accountable. It suppresses information. It fabricates information. And it destroys information (using) using (sic) half truths, lies and slick marketing.

(CX 11; EX D) Complainant made this statement at a press conference held to announce that a settlement had been reached in the Clean Air Act case.(TR 145) Complainant explained that, attending the press conference, were representatives of CCNS, LANL, DOE and perhaps the University of California. (TR 148-149) He specifically stated that Denny Ericson, the Division Director for the Environmental Safety and Health Division at the Laboratory was present. (TR 148) According to Complainant, Mr. Ericson did not make any remarks to him regarding his participation in the press conference. (TR 150)

   In the article, Complainant referred to "shabby" practices. (TR 151) He elaborated on this by explaining that the quality assurance programs "are in a state of disarray", that there is a fair amount of turnover in people, that individuals are dissatisfied, and programs as a whole are ineffective. (TR 152)

   Complainant explained that his remarks in the article came from both an interview and the January, 1997 press conference announcing the settlement in the Clean Air Act case. (TR 243-244) He further explained that he specifically mentioned to the reporter that it was

(CX 12) He stated that nobody spoke with him about his quote in the article until August of 1997. (TR 153)

   Mr. King read the article in the Santa Fe Reporter, and he stated that he was "concerned over the fact that there had been a number of evaluations done by the Laboratory about the stack emissions and at no point had we exceeded the limits established by the EPA." (TR 595-596; CX 11; EX D) Mr. King did not speak to Complainant about the articles in the Santa Fe Reporter or the Santa Fe New Mexican. (TR 612- 613)

   Mr. Frostenson read the article in the Santa Fe Reporter. (TR 726; EX D; CX 11) He was "surprised" about the article, because Complainant was quoted in the article, and he made a number of statements with which Mr. Frostenson did not agree. (TR 728-729) Specifically, Mr. Frostenson stated that he does not believe that Complainant is an air quality expert, nor has he been used as a subject matter expert in the Clean Air Act. (TR 729) He also stated that he does not believe that LANL suppresses information. (TR 729) Mr. Frostenson believed that the assessors' credibility would be impaired because the

statements were not factual. (TR 731) He explained that the assessors' relationship with the assessed organization would be jeopardized if the press is given information prior to their having an opportunity to correct any problems. (TR 731)

   Ms. Brittin saw the article in the Sante Fe Reporter. (TR 882; EX D; CX 11) She was concerned that one of the assessors was being quoted in the article, that there were some inaccuracies and that it would have an effect on the ability of assessors to do their job. (TR 882) She did not speak to Complainant about the article because she was out of the Laboratory a lot of the time on personal matters from September of 1996 through May of 1997. (TR 883) Ms. Brittin stated that Complainant is not considered, in the AA office, to be an expert in the Clean Air Act. (TR 883) She also stated that she has not experienced disdain for QA programs from the director on down the line. (TR 884) It has not been Ms. Brittin's experience that LANL does what it wants without being held accountable. (TR 885) According to Ms. Brittin, Complainant has never come to her with such complaints. (TR 885-886)

   Mr. Loud recalled seeing the article in the Santa Fe Reporter. (TR 979; EX D; CX 11) He was "surprised" and "saddened to some degree" because he believed it would have a detrimental impact on the group. (TR 980) He explained that by detrimental impact, he meant that it might cause an adversarial relationship between the assessors and customers. (TR 980-981) He also explained that he was surprised because he did not "realize that there was an issue brewing that would result in public disclosure." (TR 980)

F. Objections to Complainant's Participation

information." (TR 647) Mr. Villarreal noted a particular statement in the article, that WIPP could be producing data that is not fully compliant, as disturbing. (TR 647)

   After the article came out, Mr. Villarreal called the AA-2 office to confirm the source of the information. (TR 652) Following that, he instructed Shirley O'Rourke, the quality assurance manager, to request that Complainant not be part of the next requested assessment because he did not want "this kind of information leaking out to the press under an internal audit that we have requested." (TR 653) Mr. Villarreal indicated that he was not trying to improperly manipulate an audit team by making this request. (TR 653) Rather, his primary concern was for his sponsor and customer. (TR 653)

   Mr. Villarreal indicated that he judged Complainant without talking to him about why he made the statements attributed to him in the Santa Fe New Mexican article. (TR 664) He explained that the statements in the article were dangerous because it would become a problem for his sponsor, the Carlsbad Area Office of the DOE. (TR 665) The article was also a concern because Mr. Villarreal would have to take time to respond. (TR 666)

   Mr. Villarreal had an expectation of confidentiality with the assessors, but this was not in writing. (TR 668) He agreed that there were not any details regarding the WIPP project in the article, but he added that "a little knowledge can be taken the wrong way." (668-689) Mr. Villarreal explained that the article, in stating LANL used inadequate quality assurance, made "an encompassing and negative statement about the quality assurance procedures" being used. (TR 671)

   Shirley O'Rourke is the Transportation Program Manager at LANL. (TR 675) She recently returned to this position after spending six years in quality assurance working for the Source-Term Test Program (STTP), which is a WIPP program. (TR 675) Ms. O'Rourke read the article in the Santa Fe New Mexican. (TR 682; EX E; CX 10) She noted that she was not happy with a paragraph which stated that LANL used inadequate quality assurance procedures related to an experiment for the WIPP program, and that the results of the experiment could not be certified or relied on. (TR 683) Specifically, Ms. O'Rourke stated that to the best of her knowledge, there is no question about the results of the experiment. (TR 683) According to Ms. O'Rourke, there were numerous audits, and at no time did anyone ever question the data, the experimental processes or the methodology. (TR 683) Ms. O'Rourke was not pleased by the article because it was bad publicity and it was not accurate. (TR 684) She also stated that the impact of the article "casts a doubt on the value and on the validity and of the results and of the work that's being done." (TR 684)

   Ms. O'Rourke discussed the article with Mr. Villarreal, and then she called Mr. Griffin, who was the team leader for the most recent assessment. (TR 687) She told Mr. Griffin that she did not want Complainant involved in assessments on any projects with which she was affiliated. (TR 687) She explained that she did not feel that Complainant could be trusted because he was passing on confidential information, and because the data he was giving to the newspaper was inaccurate. (TR 687)

   Ms. O'Rourke explained that her concerns with regards to the article revolved around the fact that it was "a condemnation of all of the projects of the [WIPP]" and that it was "not specific about what they're talking about." (TR 711) She added that the "way the experiments are put together the results and the data, there's no question about the results or the data." (TR 711)

   Ms. O'Rourke indicated that she was satisfied with Complainant's level of competency and his expertise when he did assessments. (TR 692) She stated that she never spoke with Complainant about the statements in the newspaper article, and that she did not know what he based his statements on. (TR 693-694)

   According to Mr. Frostenson, Margie Gavett from CST-7 asked that Complainant not be used on an assessment that was being planned. (TR 731-732) Ms. Gavett did not want Complainant because she did not want to read about her problems in the newspaper. (TR 732) Mr. Frostenson indicated that he found another qualified quality assurance person to take Complainant's place. (TR 733) He stated that he informed Mr. Derkacs of Ms. Gavett's complaint. (TR 734) Mr. Frostenson stated that he never spoke with Complainant about Ms. Gavett's request that Complainant not be part of the assessment team. (TR 812) He also stated that he did not try to get access for Complainant. (TR 814)

   Ms. Brittin indicated that she is concerned when she gets feedback from assessed organizations relating to the quality of the assessors work. (TR 962) Ms. Brittin agreed that she was concerned enough about the feedback from the assessed organizations to allow work to be taken away from Complainant without his knowledge. (TR 963-964) However, Ms. Brittin later stated that work was not taken away from Complainant, rather, resources were aligned to better serve the interests of the customers. (TR 969-970)

   Mr. Loud, when he came on as group leader in March of 1997, scheduled meetings with all the employees. (TR 982) According to Mr. Loud, all three team leaders stated that they had negative customer feedback pertaining to Complainant's participation in certain assessments. (TR 984) He also believed that all three team leaders stated that they had customers who "requested or demanded" that Complainant not be used on their assessments. (TR 984) Mr. Loud recalled being told that Complainant was not working on an assessment because of the customer feedback. (TR 984-986) Mr. Loud stated that he did not do any independent investigation of what the team leaders told him. (TR 985) However, he also stated that some members of the assessed organizations expressed displeasure to him regarding news media disclosure of assessment issues. (TR 1081-1082)

   Mr. Loud did not address the situation because he was not sure how to address it at that point. (TR 986) He decided that "the best way to deal with it would be in the upcoming performance appraisals." (TR 986) Mr. Loud stated that he did not consider disciplining Complainant. (TR 986) According to Mr. Loud, some of the group was angry about the disclosure and Complainant's actions. (TR 987) Mr. Loud stated that not using Complainant on assessments "really wasn't an option." (TR 987) He explained that he

   Floyd Segura is presently Project Leader in the Compensation and Benefits Group at LANL. (TR 478) Prior to this, he was the Group Leader of Compensation and Benefits at LANL. (TR 479) Mr. Segura explained that LANL is on an October 1 to September 30 fiscal year. (TR 480) Thus, the fiscal year for 1998 begins in October of 1997. (TR 480) He also explained that the salary review exercise for 1998 would begin in September of 1997, and that a salary increase would become effective in the closest beginning of a pay period to the fiscal year. (TR 480-481)

and job content. (TR 497) He also stated that obtaining a degree does not automatically result in a pay increase, although the obtaining of an advanced degree or special certification are factors that should be taken into consideration when making salary determinations. (TR 497-498, 504)

   Mr. Segura stated that an employee's performance assessment, as well as good and bad comments should be taken into consideration. (TR 505) He further stated that if there were any other documents taken into consideration, they should be shown to the employee. (TR 511) Mr. Segura indicated that in the case of an assessor, the work to be considered in the salary determination is the assessing work. (TR 513)

   Mr. Segura explained that most salary determinations are made at the team level, then the group leader would review them, followed by review by the division director. (TR 498) He also explained that there is some review at the director level, but that this review would deal with trends and not individual salary increases. (TR 498)

   Mr. Segura stated that, in most cases, a team leader's salary would be greater than a non-team leader's salary. (TR 500) Similarly, Mr. Segura stated that employees with leadership roles would more likely receive higher salary increases over employees without leadership roles, because those with leadership roles would have greater job content. (TR 500) He also stated that employees with significantly higher performance ratings than others would have greater salary increases. (TR 501)

   It was Mr. Segura's experience that managers have abused their discretion in making salary determinations. (TR 506) He stated that it would be improper to use the salary review process to penalize someone who blew the whistle on unsafe conditions. (TR 507-508)

   Mr. Segura did not know whether an employee's salary determination is grievable within LANL's employee complaint process. (TR 517) However, he did state that an employee could go to the Employee Relations Group or the Ombuds Office with salary concerns. (TR 518)

H. Complainant's Performance Assessment

contained the following comments:

Joe is a well recognized expert in Quality Assurance and continuously strives to maintain and enhance his expertise in this area. He recertified as an ISO 9000 Lead Auditor during this period and is one of only a handful of Laboratory employees to hold this distinction. He has provided leadership to the group in development of standards and operating practices to increase our effectiveness. Joe also added to his professional credentials during this period by obtaining a Master of Business Administration/Technology Management degree.

There was some unfavorable customer feedback during this period regarding the unrestricted distribution of some of Joe's assessment issues. Since Joe routinely works with customers in sensitive and service oriented fashion, I am confident that the trust and confidence of these and other customers can be reestablished through use of new and existing AA/Laboratory channels for issue escalation and resolution. I look forward to working with Joe to use these systems to enhance the Laboratory's ability to identify and correct significant ES&H deficiencies.

(CX 17; EX I) Mr. Loud explained that he included the sentence regarding "unfavorable customer feedback" because it was true, it was something that needed to be on the record, and it was something Complainant needed to know about. (TR 1013) It was also included so "we would have an agreement where we could do a more effective job of what we're chartered to do which is to do internal assessments at the Laboratory." (TR 1087) Mr. Loud explained that the effectiveness of the organization was at stake because of customers' concerns that Complainant had gone to the media. (TR 1069)

   Complainant was "rather offended" at the manner in which the customer complaints were introduced, as he had heard no complaints from anyone prior to reviewing the assessment. (TR 155) He asked to be permitted an opportunity to comment, and then he entered his comments in the appraisal. (TR 155, 1016-1017; CX 14; EX I-11) Complainant's comment, in relevant part, stated as follows:

The comment about the ... "unrestricted distribution of some of Joe's Assessment issue." ... refers to my providing input to the Concerned Citizens for Nuclear Safety (CCNS) law suit brought against the Laboratory.

The Laboratory channels I attempted to utilize to escalate and alert Lab management of my concerns failed, because line management refused to acknowledge my concerns and denied the existence of the issues and facts I brought to their attention.

The Court ruled in favor of CCNS and acknowledged my concerns as being valid and corroborated.

(CX 14; EX I-11)

   In response to Complainant's comments, Mr. Loud wrote a note, dated August 27, 1997, to Complainant. (TR 1021-1022; EX I-12; CX 15) The note stated as follows:

(CX 15; EX I-12) Mr. Loud explained that he wrote the note because he felt Complainant's comments were inaccurate, and he wanted to correct it for the record. (TR 1022) Mr. Loud's concerns were based on Complainant's comments in the Santa Fe Reporter, and he was not concerned with CCNS. (TR 1108-1110) According to Complainant, Mr. Loud indicated that the note would be added to his performance appraisal. (TR 158)

   On September 8, 1997, Complainant sent an e-mail to Mr. Loud regarding Mr. Loud's August 27, 1997 note. (TR 159, 1025; CX 18; EX L-1) Complainant had questions about the "customer concerns." (CX 18; EX L-1) He felt that if the note were entered into his appraisal, it would have an adverse action on further employment, and he felt it did not accurately characterize the situation as it had transpired. (TR 159-160) In the e-mail, Complainant reserved the right to go outside the Laboratory when people's lives are at stake. (TR 161; CX 18; EX L-1)

   On October 3, 1997, Complainant prepared a memo documenting a conversation he had with Mr. Loud regarding his raise. (TR 173, 1030; CX 20) Complainant objected to the negative comments in his performance assessment relating to customer dissatisfaction. (TR 173-174) According to Complainant, Mr. Loud stated that he did not have much participation in the performance assessment, but that it was probably Mr. Derkacs or Ms. Brittin who did. (TR 174) According to Complainant, Mr. Loud indicated that he felt Complainant contributed more to the Laboratory than was reflected in the raise. (TR 175) Mr. Loud presented Complainant with a notification of his raise, which was dated September 30, 1997. (TR 176; CX 21) Complainant's raise was 2.75 percent. (TR 175; EX J)

   According to Mr. Loud, it was "conceivable" that he told Complainant that he wished the raises were more, because he did not feel that there was a very big pool to begin with. (TR 1060) He explained that he does not remember telling Complainant that he had nothing to do with Complainant's salary determination, although he added that he might have been referring to the size of the pool. (TR 1060) Mr. Loud also did not recall telling Complainant that he would try to make it up the next year. (TR 1061) He did recall that Complainant stated that he could do more. (TR 1062) Mr. Loud assumed Complainant was referring to the fact that he was not being used on some assessments, and he agreed with Complainant's statement. (TR 1062) Mr. Loud indicated that he was not commenting that Complainant's contribution was actually greater than that which was reflected in his pay increase. (TR 1062-1063)

   Ms. Brittin indicated that she became aware of the comment regarding "unfavorable customer feedback" sometime in the summer of 1997, when Mr. Loud brought it to her attention. (TR 890) According to Ms. Brittin, Mr. Loud wanted to communicate to Complainant that there were issues concerning the way he distributed some of the assessment issues. (TR 891) She did not believe that the comment referring to "unfavorable customer feedback" was made in retaliation for Complainant's statement to CCNS. (TR 909) She explained that she did not discuss the "unfavorable customer feedback" with Complainant because she was away from the laboratory for most of the time between September of 1996 and May of 1997. (TR 891) She also explained that the performance assessment was the proper way to address the issue since it was the place to provide feedback to employees. (TR 891-892)

   Mr. Loud made his salary recommendation based on performance and job content, and he explained that the performance assessment weighed heavily in making the salary determination. (TR 1099-1101) According to Mr. Loud, job content was the "only objective differentiation" between Complainant, Mr. Beckmann and Mr. Emerson. (TR 1103) Mr. Loud agreed that one of the reasons he gave more money to Mr. Beckmann was because he was the team leader of the management self-assessment. (TR 1103) Mr. Loud noted that Complainant's job content had been affected that year, as Complainant had been taken off assessments because of customer complaints. (TR 1106-1107) However, he explained that he never took into consideration that Complainant was not fully engaged during the assessment period, and that he considered all the team members to have similar job content. (TR 1113)

   Mr. Loud stated that the performance appraisal system can be a disciplinary tool, but that he was not using it as a disciplinary tool in this case. (TR 1014) He admitted that his second paragraph in the comments section was not required and that it could give the impression that Complainant's performance needed improvement, although that was not his intent. (TR 1077) According to Mr. Loud, comments in a performance appraisal might be taken into account in making salary decisions, and that they might be evaluated in terms of promotion. (TR 1083-1084)

   After discussing the salary determinations with the group leaders, the recommendations are sent to Ms. Brittin for approval. (TR 1058) Mr. Loud indicated that Ms. Brittin approved the recommendations that came from the management team. (TR 1058) Mr. Loud believed that Complainant's rating in the raises was an accurate reflection of his contribution to the group, although he would have liked a bigger pot of money to divide at the outset. (TR 1058) According to Ms. Brittin, she did not recall Complainant's raise recommendation being changed at the team management meeting. (TR 904-905) She indicated that Complainant's raise was appropriate and based on his contribution to the organization. (TR 905)

   Complainant did not seek a higher level of management review of his performance appraisal, as is allowed by AM 109.23. (TR 313-314, 892; EX C-4)

   Complainant indicated that he has been asked to assist a different group for a period of six months, with the possibility of an extension. (TR 312) He also indicated that the group has the choice of whether to accept his participation. (TR 313) Complainant assumed that the group would have the opportunity to see his performance appraisals if they wanted. (TR 313)

   Respondent has argued that Complainant's speech is not protected by the First Amendment to the United States Constitution because it fails the balancing test enumerated by the United States Supreme Court in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731 (1968) and Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684 (1983). (EX X at 20-25) According to Respondent, although Complainant's speech was of public concern, his chosen method of delivering the speech was unduly disruptive to Respondent's business activities, and thus, Complainant's speech falls outside the gambit of First Amendment protection. (EX X at 25)

   This Administrative Law Judge finds Respondent's arguments unpersuasive. None of the cases cited by Respondent in its post-hearing brief, with regards to the First Amendment issue, concerned matters arising out of the employee protection provisions of the ERA. Those provisions are set forth at 42 U.S.C. §5851, and I will conduct my analysis pursuant to them, and pursuant to the implementing regulations set forth at 29. C.F.R. Part 24.

   This case proceeded to a full hearing on the merits. Accordingly, examining whether Complainant has established a prima facie case is no longer particularly useful and this Administrative Law Judge shall consider whether, viewing all of the evidence as a whole, the Complainant has shown, by a preponderance of the evidence, that he was discriminated against for engaging in protected activity. See Boudrie v. Commonwealth Edison Co., 95-ERA-15(ARB 04/22/97); Boytin v. Pennsylvania Power and Light Co., 94-ERA-32 (Sec'y 10/20/95); Marien v. Northeast Nuclear Energy Co., 93-ERA-49/50 (Sec'y 09/18/95). To carry that burden, Complainant must prove that Respondent's stated reasons for placing the comment regarding "negative customer feedback" in his performance assessment, and for giving him a 2.75% pay increase for fiscal year 1998, are pretextual, i.e., that they are not the true reasons for the adverse actions and that the protected activity was. Leveille v. New York Air Nat'l Guard, 94-TSC-3/4, at p. 4 (Sec'y 12/01/95); Hoffman v. Bossert, 94-CAA-4, at p. 4 (Sec'y 09/19/95). It is not sufficient that Complainant establish that the proffered reasons were unbelievable; he must establish intentional discrimination in order to prevail. Leveille, supra.

   A complainant under the ERA must prove that retaliatory action was taken against him because he engaged in conduct listed in 42 U.S.C. §5851(a)(1), (2) or (3), which the Secretary has interpreted broadly to mean any action or activity related to nuclear safety. Keene v. Ebasco Constructors, Inc., 95-ERA-4 (ARB 02/19/97)(complainant engaged in protected activity where he reported safety concerns that were neither frivolous nor extraneous to the safety interests promoted by the whistleblower protections of the ERA); Van Beck v. Daniel Constr. Co., 86-ERA-26 (Sec'y 08/03/93)(complainant engaged in protected activity where he expressed concerns about non-nuclear hazards present during the construction phase of a nuclear power plant which had a potentially substantial effect on nuclear safety). Cf. Roberts v. Rivas Environmental Consultants, Inc., 96-CER-1 (ARB 09/17/97)(dismissing complaint because employee raised concerns about occupational safety and health matters, rather than CERCLA protected activities); Tucker v. Morrison & Knudson, 94-CER-1 (ARB 02/28/97)(holding that certain safety concerns raised by complainant were not protected by the CERCLA because they did not relate to environmental safety, but rather to occupational safety)(emphasis in original).

   On the basis of the totality of this closed record, I find and conclude that Complainant has established by a preponderance of the evidence that he engaged in protected activity and that Respondent was aware of it. Complainant raised concerns regarding the need for as-built configuration design (TR 81-82, 1143-1144; CX 4), implementation of the quality assurance program (TR 75-76, 122-124; CX 2; CX 27), the potential for leaks between the concrete placements at the plutonium facility (TR 128-129), and problems with the radionuclide monitoring system (TR 127-132, 1148-1149; EX G). This Administrative Law Judge finds Complainant's concerns to be within the parameters of the ERA as they relate to nuclear safety. See Smith v. Esicorp, Inc., 93-ERA-16 (Sec'y 03/13/96).

   Complainant raised his concerns in the BUS and TSFF assessments, and in his March 22, 1996 memo. (EX G, H; CX 2) Such internal safety and quality control complaints are within the scope of protected activities covered by the ERA. Kansas Gas & Elec. Co. v. Brock, 780 F.2d 1505 (10th Cir. 1985), cert. denied, 478 U.S. 1011, 92 L.Ed. 2d 724, 106 S.Ct. 3311 (1986). Complainant is employed at LANL as an internal assessor in the Office of Audits and Assessments (ALJ EX 18), and he is a subject matter expert in the area of quality assurance. (EX W at 22) Employees performing quality control and quality assurance functions are engaged in activity protected by Section 5851 of the ERA. Richter v. Baldwin Associates, 84-ERA-9 to 10 (Sec'y 03/12/86)(order of remand)(citing Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159(9th Cir. 1984)("In a real sense, every action by quality control inspectors occurs 'in an NRC proceeding,' because of their duty to enforce NRC regulations.")); Collins v. Florida Power Corp., 91-ERA-47 and 49 (Sec'y 05/15/95)(employees engaged in quality control work in nuclear power facilities are precisely the people the ERA whistleblower provision is designed to protect).

   In early 1996, Complainant raised his concerns regarding quality assurance and the potential for leaks in the plutonium facility with Mr. Le Doux of the Department of Energy. (TR 83, 464-466) Complainant provided his October 7, 1996 statement to Congressman Richardson and Senator Bingaman, among others. (TR 139; CX 27) These contacts with a federal agency and the New Mexico congressional delegation are protected under the employee protection provision of the ERA. See Saporito v. Florida Power & Light Co., 89- ERA-7 and 17 (Sec'y 06/03/94)(employee who bypassed the chain of command to speak directly with the Nuclear Regulatory Commission engaged in protected activity).

   Complainant also provided CCNS with his October 7, 1996 statement. (TR 139) CCNS submitted Complainant's statement, as an attachment to another document, to Judge DeGiacomo in connection with the Clean Air Act lawsuit. (TR 404-405) It was Complainant's expectation that by giving his statement to CCNS, he could get his concerns to the court. (TR 375-376) I find that Complainant's contact with CCNS is protected activity. See Scott v. Alyeska Pipeline Service Co., 92-TSC-2 (Sec'y 07/25/95)(providing information to a private person for transmission to responsible government agencies, or for use in environmental lawsuits against one's employer is protected activity under the CAA, SWDA, TSCA, and FWPCA), citing Simon v. Simmons Indus., 87-TSC-2 (Sec'y 04/04/94). See also Nunn v. Duke Power Co., 84-ERA-7 (Sec'y 07/30/87)(complainant may be able to establish that contact with public interest group was protected activity pursuant to 42 U.S.C. §5851 (a)(2) and (a)(3)).

   Finally, Complainant was quoted in articles published in the Santa Fe New Mexican and the Santa Fe Reporter. (CX 10, 11; EX E, D) His comments related to the quality assurance program, and to his findings from his assessments of the tritium and plutonium facilities. (CX 10, 11; EX E, D) Communications with the media are protected activities under the Act. Wedderspoon v. City of Cedar Rapids, Iowa, 80-WPC-1 (Sec'y 07/28/80); Carter v. Electrical District No. 2 of Pinal County, 92-TSC-11 (Sec'y 07/26/95)(contact with the press is protected activity under the whistleblower statutes); Floyd v. Arizona Public Service Co., 90-ERA-39 (Sec'y 09/23/94)(complainant engaged in protected activity when he met with a newspaper reporter and provided him documents concerning safety at the respondent's nuclear facility).

   Complainant has also established by a preponderance of the evidence that Respondent was aware of his protected activity. To establish the element of knowledge of complainant's protected activities, the evidence must show that respondent's managers responsible for taking the adverse actions had knowledge of the protected activities. Floyd v. Arizona Public Service Co., 90-ERA-39 (Sec'y 09/23/94).

   Mr. Loud, who prepared Complainant's performance assessment, was aware of much of Complainant's protected activity. According to Ms. Brittin, she briefly discussed Complainant's October 8, 1996 statement with Mr. Loud. (TR 871-872) Mr. Loud admitted that he saw the article in the Santa Fe Reporter, and he added that he was "surprised" and "saddened to some degree" because he believed it would have a detrimental impact on the group. (TR 979-980) Mr. Loud also admitted that some

members of the assessed organizations expressed displeasure to him regarding news media disclosure of the assessment issues. (TR 1081-1082) Furthermore, all three team leaders informed Mr. Loud that they had negative customer feedback concerning Complainant's participation in certain assessments. (TR 984) Mr. Loud was also aware of Complainant's participation in the CCNS lawsuit, although he stated that he did not recall such participation at the time of the performance appraisal meeting. (CX 15; EX I-12)

   Ms. Brittin, who reviewed and approved Complainant's performance assessment, was also aware of Complainant's activity. Ms. Brittin did receive a copy of Complainant's March 22, 1996 memo to Mr. Derkacs, and she conceded that the memo did reference health and safety issues. (TR 837, 917-919) She also received a copy of Complainant's October 7, 1996 statement, after it was faxed to her by the Public Affairs Office. (TR 870) Ms. Brittin read the articles in both the Santa Fe New Mexican and the Santa Fe Reporter, and she was aware of Complainant's participation with CCNS. (TR 872, 882, 961)

   The uncontroverted evidence also establishes that Mr. Jackson, the Deputy Director of the Laboratory, was aware of Complainant's protected activity. Complainant sent a copy of his March 22, 1996 memo to Mr. Jackson. (TR 79; CX 2) According to Mr. Le Doux, he informed Mr. Jackson that Complainant was concerned about getting a report through audits and assessments, and that Complainant was concerned about concrete placements. (TR 469-470) Mr. Le Doux also stated that Mr. Jackson informed him that LANL had followed up on Complainant's concerns. (TR 470) In June or July of 1997, Complainant spoke with Mr. Jackson about some of his concerns. (TR 260)

   Respondent argued that the comment in Complainant's performance assessment regarding "unfavorable customer feedback", and the 2.75% pay raise for fiscal year 1998 were not adverse employment actions. Respondent further argued that the comment in the performance assessment was not an adverse action because it did not meet the ERA definition of an adverse action, the comment was a proper statement of fact regarding "true" customer feedback, and Complainant suffered no adverse consequences as a result of the notation in his performance appraisal. This Judge rejects each of these arguments and addresses each in turn.

   Respondent argued that the comment regarding "unfavorable customer feedback" does not meet the definition of adverse action because the "entries reflect positively on the Complainant and record the Supervisor's willingness to work with, and confidence in the, Complainant." (EX X at 30) However, the narrative contained in a performance appraisal may constitute adverse action, even if the ultimate rating does not. Varnadore v. Oak Ridge National Laboratory, 92-CAA-2 and 5, 93-CAA- 1 and 94-CAA-2 and 3, slip op. at 32 (ARB 06/14/96), citing Bassett v. Niagra Mohawk Power Corp., 85-ERA-34, slip op. at 4 (Sec'y 09/28/93). Thus, the fact that Mr. Loud's comment contains other statements that could be perceived as positive does not negate the overall tone of the comment. Furthermore, this Administrative Law Judge does not find that Mr. Loud's comments, that he is "...confident that the trust and confidence of these and other customers can be reestablished...", and that he "...looks forward to working with..." Complainant, reflect positively on Complainant. Such comments show that customers no longer trust or have confidence in Complainant, because of his engaging in protected activity.

   Citing to Varnadore v. Oak Ridge National laboratory, 92- CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB 06/14/96), Respondent argues that the comment regarding "negative customer feedback" is a mere statement of fact that does not constitute an adverse action. (EX X at 30) In Varnadore, the respondent introduced the complainant at a meeting by stating, "we all know him." Id. With regards to this statement, the ARB reasoned as follows:

Given the amount of publicity that the Varnadore cases have generated, Minter's comment was merely a statement of fact. Certainly nothing which even arguably had an adverse impact on Varnadore's work environment can be read into this innocuous remark.

Id. The situation in the present matter is distinguishable from the one in Varnadore. Here, Mr. Loud included the comment in Complainant's performance assessment, as opposed to making the comment to a gathering of people. Comments in a performance assessment can be taken into account as one of the factors in determining an individual's pay increase in a particular year. (TR 449) In fact, Mr. Loud stated that the performance assessment weighed heavily in making the salary determination. (TR 1099-1101) Mr. Loud also stated that comments in the performance assessment are part of Complainant's

permanent record, and could be evaluated in terms of promotion. (TR 1083-1084) Thus, as the comment regarding "unfavorable customer feedback" was included in Complainant's performance assessment, and as Mr. Loud admitted that the performance assessment weighed heavily in making the salary determination, it would be incongruous to find that the comment did not have an adverse impact on Complainant's work environment.

   Furthermore, the comment regarding "unfavorable customer feedback" cannot be considered an "innocuous remark", as was the comment in Varnadore. While the comment in Varnadore was obviously an acknowledgment of the complainant's alleged whistleblowing activities, the comment itself was harmless. In the present matter, the comment regarding "unfavorable customer feedback" is, on its face, a negative reflection on Complainant's job performance.

   Respondent's final argument was that Complainant has suffered no adverse consequences as a result of the comment in the performance assessment, specifically noting that Complainant has been asked to assist another group within the Laboratory. (EX X at 31) As previously discussed, the comment regarding "unfavorable customer feedback" was included in Complainant's performance assessment, and Mr. Loud admitted that the performance assessment weighed heavily in making the salary determination. Thus, the comment did cause Complainant to suffer an adverse consequence. Furthermore, negative comments made in a performance evaluation can, in themselves, constitute an adverse action. Bassett v. Niagara Mohawk Power Corp., 85-ERA-34 (Sec'y 09/28/93)(negative comments and warnings contained in performance evaluation are an adverse work evaluation, affected the terms of complainant's employment, and they constitute an adverse employment action).

   Also, the fact that a group within the Laboratory later requested Complainant's participation does not lead to the conclusion that the comment has not interfered with opportunities available to Complainant. Mr. Carathers, Mr. Villarreal, Ms. O'Rourke, Mr. Ruminer and Ms. Gavett all informed the team leaders that they did not want Complainant participating in assessments of their facilities because of his contacts with the media. (TR 538-539, 554, 646-653, 683-684, 731-732) Mr. Griffin, Mr. King and Mr. Frostenson each indicated that they acceded to requests to keep Complainant off the assessment teams. (TR 542, 600-601, 733-734)

   Ms. Brittin agreed that she was concerned enough about the feedback from the assessed organizations to allow work to be taken away from Complainant without his knowledge. However, she later characterized the actions as "aligning our resources...to better serve the interests of our customers..." (TR 969) Euphemisms aside, the result is clearly the same: work was taken away from the Complainant. Although these incidents, which formed the basis of the unfavorable customer feedback, occurred prior to the comment being included in Complainant's performance assessment, to argue that Complainant's work environment was not affected after inclusion of the comment strains credulity.

   Respondent generally asserts that Complainant's 2.75% pay raise for fiscal year 1998 does not constitute an adverse action, although Respondent did not set forth any specific rationale in its post-hearing brief to support this conclusion.

   This Administrative Law Judge finds that Complainant's 2.75% pay raise for fiscal year 1998 does constitute an adverse action. Whistleblower provisions prohibit discrimination with respect to an employee's compensation, terms, conditions, or privileges of employment, including transfers to a less desirable position, even if no loss of salary is involved. Carter v. Electrical District No. 2 of Pinal County, 92-TSC-11 (Sec'y 07/26/95), citing DeFord v. Sec. of Labor, 700 F.2d 281, 283, 287 (6th Cir. 1983); Jenkins v. U.S. EPA, 92-CAA-6, (Sec'y 05/18/94). Although Complainant did receive a pay increase for fiscal year 1998, for the reasons stated below, I find that such increase does constitute an adverse action.

   As previously noted, salary determinations at the Laboratory are based on performance and job content. (TR 490) An employee's performance assessment, as well as good and bad comments, should be taken into consideration. (TR 505) Mr. Loud admitted that his salary recommendation was based on performance and job content, and that the performance assessment weighed heavily in making the salary determination. (TR 1099-1101) In fact, Mr. Loud stated that the performance assessment was the only document used in determining Complainant's pay raise. (TR 1100-1101) Given Mr. Loud's admitted reliance on the performance assessment in making the salary determination, and given that the performance assessment contained the comment regarding "unfavorable customer feedback", it is evident that such comment was a factor in the pay raise given to Complainant. It is equally evident that such comment had a detrimental impact on Complainant's pay raise, as "unfavorable customer feedback" is, on its face, a negative comment.

   Furthermore, Mr. Loud stated that job content was the "only objective differentiation" between Complainant, Mr. Beckman and Mr. Emerson. (TR 1103) Mr. Loud noted that Complainant's job content had been affected because Complainant was taken off assessments because of customer complaints. (TR 1106-1107) As previously discussed, these customer complaints arose out of Complainant's contacts with the media regarding health and safety issues at LANL. (TR 538-539, 554, 646-653, 683-684, 731-732) Thus, work was taken away from Complainant because of his protected activity, and this reduction in work was used to justify Complainant's pay raise.

   I note that Mr. Loud explained that he did not take into consideration that Complainant was not fully engaged during the assessment period, and that he considered all the team members to have similar job content. (TR 1113) However, had work not been taken away from Complainant, he would have had a greater job content than that which was considered by Mr. Loud. Under either scenario, Complainant's job content was reduced because of his protected activity, and this reduction had a negative impact on Complainant's pay raise.

   Respondent has also argued that the comment in Complainant's performance assessment and the 2.75% pay raise are not causally related to protected activity because they were made for legitimate business reasons and served a valid business purpose. (EX X at pp. 32-44) Specifically, Respondent argues that it was trying to accomplish the objectives

outlined in the Administrative Manual. (EX X at 33) The objectives of the performance assessment, as set out in AM 109.05, are as follows:

The performance assessment process should provide employees and supervisors with a mutual understanding of job responsibilities and provide a basis for a meaningful assessment of performance. This process should also improve job performance, job satisfaction, and productivity of the employees; develop and maintain open communication between employees and their supervisors; Provide input into the salary review process; and encourage a discussion of employee development.

(CX 25-10; EX C)

   This Administrative Law Judge recognizes the whistleblower statutes do not restrict an employer in its operational decisions. Bauch v. Landers, 79-SDW-1 (Sec'y 05/10/79)(quoting the ALJ's R.D.O.). See Also Ray v. Harrington, 79-SDW-2 (Sec'y 07/13/79). The statutes do not, and should not, preclude management from taking steps to assure and maintain the effectiveness of its staff in enforcing a particular environmental statute and the employer should not be faulted for mandating an adverse action, such as reassignment or termination or removal, to achieve this action. However, in Timmons v. Franklin Electric Coop., 1997-SWD-2 (ARB 10/01/98), the ARB held that it did not run afoul of the prohibition against DOL supplanting the employer's business judgment when they found that complainant's termination was prompted by his protected activity, and not by respondent's explanation of poor work performance.

   Respondent, despite arguments to the contrary, has virtually admitted that the comment regarding "unfavorable customer feedback" was related to Complainant's protected activity. The "unfavorable customer feedback" in question came from LANL employees, such as Mr. Carathers, Ms. O'Rourke, Mr. Villarreal, Mr. Ruminer and Ms. Gavett, and it was in reference to Complainant going to the media with his safety and health concerns. (TR 538-539, 687, 652-653, 554, 732) Mr. Loud, in his August 27, 1997 note to Complainant, stated as follows:

...My present concerns and my comments during our meeting were related to media coverage referencing our internal assessment issues. Understandably our customers do not want to read about their real and/or perceived deficiencies in media sources such as the Santa Fe Reporter. We need to be sensitive to these customer concerns and avoid media interaction leading to such coverage of internal assessment issues. ...

(CX 15; EX I-12) Mr. Loud explained that his concerns were based on complainant's comments in the Santa Fe Reporter, although he was not concerned with CCNS. (TR 1108-1110) Thus, Respondent's argument, that the comment in Complainant's performance assessment was not in retaliation for Complainant's protected activity, is disingenuous at best, as the comment is admittedly made in reference to Complainant's contacts with the media over health and safety issues.

   Respondent's argument that the comment was made for legitimate business reasons and served a valid business purpose does not place its actions outside the purview of the Act. As the ARB explained in Timmons v. Franklin Electric Coop., 1997-SWD-2 (ARB 12/01/98):

... It is well-settled that the employee protection provided by the SWDA and similar statutes does not prohibit an employer from imposing a wide range of requirements on employees. See, e.g., Kahn v. U.S. Sec'y of Labor, 64 F.3d 271, 279 (7th Cir. 1995)(under the Energy Reorganization Act); see also Smith v. Monsanto Chem. Co., 770 F.2d 719, 723 n.3(8th Cir. 1985)(noting, in a case arising under Title VII of the Civil Rights Act of 1964, that employer may develop arbitrary, ridiculous and even irrational policies as long as they are applied in a nondiscriminatory manner), cert. denied, 475 U.S. 1050 (1986). When an employer applies an otherwise legitimate criterion in such a way that it interferes with the exercise of specific whistleblower rights, however, the employer acts in violation of the employee protection provision of the corresponding statute. See Assistant Sec'y and Ciotti v. Sysco Foods of Philadelphia, ARB No. 98-103, ALJ Case No. 97- STA-00030, July 8, 1998, slip op. at 8 (citing Self v. Carolina Freight Carriers Corp., Case No. 91-STA-25, Sec. Dec., Aug. 6, 1992, slip op. at 5).

An employer's expectation that an employee interact with others in the company as a "team player" does not constitute a proscribed criterion per se. See Odom v. Anchor Lithkemko/International Paper, ARB No. 96-189, ALJ Case No. 96-WPC-0001, Oct. 10, 1997, slip op. at 12; Erb v. Schofield Mgmt., ARB No. 96-056, ALJ Case No. 95-CAA-1, Sept. 12, 1996, slip op. at 2-3. Nonetheless, the extension of that expectation to a point where it interferes with protected activity is prohibited.

In the present matter, the objectives of the performance assessment, as set forth in AM 109.05, do interfere with Complainant's protected activity. The "unfavorable customer feedback" relates solely to Complainant's media contacts concerning health and safety concerns, and comments in performance assessments are taken into account when making salary determinations. (TR 505) The tone and the content of the comment clearly manifest an intent to inform the Complainant that his engaging in protected activity was not met with approval. The provisions of Respondent's Administrative Manual do not take precedence over the employee protection provisions of the Act.

   Furthermore, the situation in the present case is similar to those in which an employer expects an employee to interact with others at the company as a "team player." Although Mr. Loud did not specifically use the phrase "team player" in Complainant's performance assessment, his comment plainly implies that Complainant is not

a "team player", and that Complainant must stop engaging in protected activity if he wants to be considered a "team player." Mr Loud's comment stated as follows:

There was some unfavorable customer feedback during this period regarding the unrestricted distribution of some of Joe's assessment issues. Since Joe routinely works with customers in sensitive and service oriented fashion, I am confident that the trust and confidence of these and other customers can be reestablished through use of new and existing AA/Laboratory channels for issue escalation and resolutions. I look forward to working with Joe to use these systems to enhance the Laboratory's ability to identify and correct significant ES&H deficiencies.

(Emphasis added)(CX 17; EX I)

   Mr. Loud emphasized his point more clearly in his September 25, 1997 e- mail to Complainant, wherein he stated, in relevant part, as follows:

... In no case, however, should assessment issues be passed along to the media or to any organization outside of appropriate and established avenues for such disclosure. Uncontrolled disclosure of our assessment issues can lead to alienation of our customers and make it more difficult for the group to obtain the cooperation necessary to provide the Laboratory with an accurate and vitally important assessment of its ES&H status.

(CX 19) Mr. Loud explained that he made the comment about not going to the media, because he "didn't believe that was within [Complainant's] legal rights." (TR 1028- 1029) Although he later explained that he misspoke if he stated that Complainant had no legal right to go to the media, he added that, as a supervisor, he feels he has the right to ensure that his organization is run as effectively as possible. (TR 1086) Mr. Loud's comments establish that Complainant lost the trust of other LANL employees because of his engaging in protected activity, and that if he wanted to regain that trust, he would have to cease engaging in such protected activity. Thus, Respondent's expectation that Complainant be a "team player" has interfered with his protected activity, and therefore, is prohibited. See Timmons v. Franklin Electric Coop., 1997-SWD-2 (ARB 12/01/98)

   While some members of the AA2 group saw themselves as mere "servants" (TR 593-594), Complainant commendably persisted in his attempts to force Respondent to address the safety and health issues he identified. Clearly, Complainant, unlike some Laboratory employees, does not think that "a little knowledge can be a dangerous thing." (TR 647)

   This Administrative Law Judge also finds that Respondents asserted reasons for including the comment in Complainant's performance assessment are not credible because actions taken by Complainant's superiors are not consistent with those asserted reasons. Respondent argues that AM 109.05 serves the legitimate business purposes of: 1) increasing

dialogue between employees and their supervisors; 2) clarifying employees' job duties, and 3) identifying problems. (EX X at 33) It is doubtful that Respondent was truly interested in increasing dialogue, clarifying job duties or identifying problems, as no one at LANL spoke to Complainant about his actions until August 8, 1997. See Nichols v. Bechtel Construction, Inc., 87-ERA-44 (Sec'y 10/26/92)(respondent's stated reason for laying off complainant, poor job performance and attitude, were not credible where the three instances of poor performance were not discussed with complainant or foreman's superiors).

when there is a change of supervision." Mr. Derkacs did prepare a performance assessment for Complainant when he left his position as group leader, however, that performance assessment was not conducted with Complainant. (RX S)

   Mr. Loud failed to adhere to the Administrative Manual when he included his August 27, 1997 note in Complainant's performance assessment. Although Mr. Loud suggested to Complainant that the note would be added to the performance assessment (TR 158), Complainant sent Mr. Loud an e-mail on September 8, 1997, raising his concerns about the note being included in the performance assessment. (TR 159-161; CX 18; EX L-1) When Complainant first saw his completed performance assessment in early 1998, he "got rather mad" because he had sent the e-mail to Mr. Loud regarding his reservations about the note being included. (TR 169-170) Ms. McCabe explained that it is mandatory that when an employer puts a comment in the performance assessment he has to inform the employee before it becomes part of the official performance assessment, because the language of AM 109.204 requires that the employee and supervisor must read, discuss and sign the addendum. (TR 451-452; EX C-5) Complainant did not sign Mr. Loud's August 27, 1997 note which he made part of the performance assessment. (EX I-12)

   Respondent also argues that Complainant's 2.75% pay raise was not made in retaliation for his protected activity, but was taken for a legitimate business reason and served a valid business purpose. (EX X at 37-44) Specifically, Respondent argues that it was merely trying to comply with salary review process as set out in AM 202. (EX X at 37-44) The policy of the salary determination, as set out in AM 202.32, is as follows:

Salary increase decisions must reflect employee job performance, as documented in the performance assessment, relative to the employee's peer group performance; the relative importance of the employee's skill to the organization; the alignment of the employee's salary with the salaries of other employees making similar contributions; and the amount of the SIA available for each employment series in an organization. Individual salary increases are reviewed and approved by appropriate managers.

   Where management has considerable discretion in personnel matters, there is a potential that management will use this discretion in a discriminatory fashion. See Varnadore v. Oak Ridge National Laboratory, 92-CAA-2, 5 and 93-CAA-1 (ALJ 06/07/93)(where the record indicated that management had considerable discretion in determining how excused absences are factored into a personnel appraisal, the ALJ concluded that there was substantial leeway for applying this factor in a discriminatory manner.)

   The evidence of record

establishes that Respondent had considerable discretion in determining pay raises for employees, and that such discretion was used to deny Complainant an adequate pay raise for fiscal year 1998. According to Mr. Segura, LANL's salary management philosophy is to provide the flexibility to managers to attract and retain the best possible workforce, and to reward behaviors and values that are critical to LANL's success. (TR 493) He explained that managers have flexibility within the guidance given by the Compensation Group. (TR 485) Specifically, managers have flexibility to place their people into peer groups as they see appropriate, and to determine raises based on salary alignment, performance and "those kinds of things." (TR 485)

   Mr. Loud made his salary recommendation based on performance and job content, and he explained that the performance assessment weighed heavily in making the salary determination. (TR 1099-1101) Complainant's performance assessment contained the reference to "unfavorable customer feedback." (CX 14) As this comment reflects negatively on Complainant's performance, and as it was made in relation to his protected activity, it is clear that the rate of Complainant's pay raise was based on his engaging in protected activity. I note that the only negative comment in Complainant's performance assessment is the one which relates to his protected activity.

   According to Mr. Loud, job content was the "only objective differention between Complainant, Mr. Beckmann and Mr. Emerson. (TR 1103) Both Mr. Loud and Ms. Brittin indicated that Complainant's raise was based on his contribution to the organization. (TR 1058, 905) However, Complainant's job content was affected because he was taken off of assessments due to customer complaints. (TR 1106-1107) Thus, the rate of Complainant's pay raise was influenced by his engaging in protected activity. Mr. Loud explained that he never took into consideration that Complainant was not fully engaged during the assessment period, and that he considered all the team members to have similar job content. (TR 1113) However, if Complainant did not have work taken away from him, he would have had greater job content than that which was considered by Mr. Loud.

   Respondent emphasizes that both Mr. Beckmann and Mr. Emerson were assessment team leaders during the applicable review period, while Complainant was not. (EX X at 40-44) As previously noted, Mr. Loud stated that job content was the "only objective differentiation" between Complainant, Mr. Beckmann and Mr. Emerson. (TR 1103) Although Complainant was not an assessment team leader during the applicable time period, he was the team leader for the revision of the Director's Policy. (TR 1152-1153) When Mr. Loud was questioned concerning Complainant's participation in this assignment, he stated that he did not recall what was being referred to. (TR 1163) Complainant, when not working on assessments, was obviously engaging in more than just "reviewing QA manuals and books". (TR 988) This Administrative Law Judge finds that Mr. Loud's attempt to minimize Complainant's role as team leader for the revision of the Director's Policy inescapably points to the conclusion that it was Complainant's protected activity, and not his job content, that determined his salary increase.

   Accordingly, this Judge finds and concludes that the Respondent's stated reasons for including the comment in Complainant's performance assessment regarding "unfavorable customer feedback", and for awarding Complainant only a 2.75 percent pay raise in fiscal year 1998 are pretextual. Complainant has proven, by a preponderance of the

evidence, that Respondent's true reason for these actions was in retaliation for Complainant's engaging in protected activity.

   Complainant argued in the alternative that, if this matter was viewed as a dual motive case, Complainant would still prevail. (CX 40 at 20) This Judge only reaches the dual motive analysis if I determine there is a legitimacy to Respondent's stated reasons for the adverse employment action, a conclusion which I have specifically rejected for the aforementioned reasons.

   Nevertheless, I note that the burdens of production and persuasion in whistleblower cases are governed by the statutorily delineated burdens of proof added by the 1992 amendments to the ERA. If a complainant successfully proves that his protected activity was a "contributing factor" to the adverse action, the respondent must then demonstrate "by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of such behavior," 42 U.S.C. §5851(b)(3)(D). Talbert v. Washington Public Power Supply Sys., 95-ERA- 35 (ARB 09/27/96). It is this Judge's reasoned conclusion that the Respondent has not presented clear and convincing evidence that it would have taken the same action if Complainant had not engaged in protected activity because the evidence establishes that Respondent's actions were made in response to Complainant's having raised safety and health concerns.

   This Judge, having found the Respondent in violation of the ERA, is required to issue a preliminary order, effective immediately, awarding affirmative action to abate the violation and attorney fees and costs. 29 C.F.R. Part 24.7(c)(2). Overall v. Tennessee Valley Auth., 97-ERA-53 (ARB 04/27/98); Varnadore v. Oak Ridge Nat'l Lab., 94-CAA-2/3 (Sec'y 09/11/95). This Judge must also issue a recommended order on the appropriate compensatory damages, if any. 29 C.F.R. Part 24.7(c)(1).

whistleblower policy that contains the following elements (CX 40):

1. A clear statement that Laboratory employees have the right to disclose public safety concerns to outside organizations, the media, and elected officials.

2. A three person panel with the authority to immediately and timely investigate any allegations of the Laboratory's violation of the whistleblower policy and the underlying public safety concerns. The panel will then make detailed findings on the basis of the investigation. The findings will be public. One member of the panel will be appointed by management, one member will be a non-supervisory Laboratory employee selected through a closed ballot election among all non- supervisory employees, and one member will be selected by the other two members.

3. The new policy will not supplant nor supercede other available whistleblower remedies.

   The appropriate remedy in any given case is dictated by the violation for which the Respondent is found liable. In the present matter, this Judge has found that the Respondent violated the ERA by including the comment referring to "unfavorable customer feedback" in Complainant's performance assessment, and by awarding Complainant only a 2.75% pay increase for fiscal year 1998. Complainant may recover those damages which were caused by these actions.

   Accordingly, this Administrative Law Judge finds that it would not be appropriate to require LANL to adopt a new whistleblower policy, as set forth in Complainant's post-hearing brief. (CX 40 at 41-42) The creation of such a remedy is beyond the authority of this Administrative Law Judge. 29 C.F.R. §24.7(c)(1). I note that pursuant to 29 C.F.R. §24.2(d)(1), every employer subject to the Act is required to

...prominently post and keep posted in any place of employment to which the employee protection provisions of the Act apply a fully legible copy of the notice prepared by the Occupational Safety and Health Administration, printed as appendix A to this part, or a notice approved by the Assistant Secretary for Occupational Safety and Health that contains substantially the same provisions and explains the employee protection provisions of the Act and the regulations in this part. ...

29 C.F.R. §24.2(d)(1)

   Complainant seeks a four percent (4%) increase in his annual salary retroactive to October 1, 1997, plus interest from that date. (CX 40 at 41) Respondent argues that Complainant's 2.75% salary increase was based solely upon his job performance and job content, and therefore, Complainant is not entitled to the 4% pay increase. (EX Y at 5-12) In the alternative, Respondent argues that the maximum Complainant should receive is the difference between his actual pay increase, 2.75% and 3.38%, the highest pay increase in his comparable group. (EX Y at 12-13)

   The purpose of a back pay award is to make the employee whole, that is, to restore the employee to the same position he would have been in if not discriminated against. Blackburn v. Metric Constructors, Inc., 86-ERA-4 (Sec'y 10/30/91).

   Complainant has the burden of establishing the amount of back pay that a respondent owes. Pillow v. Bechtel Construction, Inc., 87-ERA-35 (Sec'y 07/19/93). However, uncertainties in establishing the amount of back pay to be awarded are to be resolved against the discriminating party. McCafferty v. Centerior Energy, 96-ERA-6 (ARB 09/24/97). Because back pay promotes the remedial statutory purpose of making whole the victims of discrimination, "unrealistic exactitude is not required" in calculating back pay, and "uncertainties in determining what an employee would have earned but for the discrimination, should be resolved against the discriminating [party]." EEOC v. Enterprise Ass'n Steamfitters Local No. 638, 542 F.2d 579, 587 (2d Cir. 1976), cert. denied, 430 U.S. 911 (1977), quoting Hairston v. McLean Trucking Co., 520 F.2d 226, 233 (4th Cir. 1975). See NLRB v. Browne, 890 F.2d 605, 608 (2d Cir. 1989)(once the plaintiff establishes the gross amount of back pay due, the burden shifts to the defendant to prove facts which would mitigate the liability). Lederhaus v. Donald Paschen & Midwest Inspection Service, Ltd., 91-ERA-13 (Sec'y 10/26/92), slip op. at 9-10)

   This Administrative Law Judge finds that a 4% pay raise will restore Complainant to the same position he would have been in had he not been discriminated against.

   For fiscal year 1998, Mr. Frostenson received four exceptional performances and a 5.31 percent pay increase (TR 331, 1048-1049; EX I-95; EX J-1), Mr. Geoffrion received four exceptional performances and a 4.09 percent pay increase (TR 331-332, 1050; EX I-69; EX J-1), Mr. Griffin received three exceptional performances and a 4.98 percent pay increase (TR 333, 1049; EX I-168; EX J-1), Mr. King received three exceptional performances and a 3.78 percent pay increase (TR 333-334, 1051-1052; EX I-121; EX J-1), Mr. Beckman received on exceptional performance and a 3.38 percent pay increase (TR 334, 1052- 1053; EX I-48; EX J-1), Mr. Emerson received one exceptional performance and a 3.19 percent pay increase (TR 334-335; EX I-148; EX J-1), and Mr. Gustafson received no exceptional performance and a 2.23 percent pay increase. (TR 335; EX I-27) Complainant received on exceptional performance and a 2.75 percent pay increase. (EX I; EX J-1)

   According to Mr. Loud, he made his salary recommendation based on performance and job content, and the performance assessment weighed heavily in making the salary determination. (TR 1099-1101) Mr. Loud admitted that Complainant's job content had been affected, as Complainant had been taken off assessments because of customer complaints. (TR 1106-1107) He explained that he never took into consideration that Complainant was not fully engaged during the assessment period, and that he considered all the team members to have similar job content. (TR 1113) However, as previously held above, had Complainant not been taken off of assessment, his job content would then have been greater than that considered by Mr. Loud. Thus, Complainant's pay raise was lower than what it would have been had he not engaged in protected activity.

   Mr. Loud stated that job content was the "only objective differentiation" between Complainant, Mr. Beckman and Mr. Emerson. (TR 1103) Mr. Loud agreed that one of the reasons he gave more money to Mr. Beckman was because he was the team leader of the management self-assessment. (TR 1103) However, Complainant did serve as the team leader for the revision of the Director's Policy, although this was not an assessment. (TR 1152-1153; EX I-9) Mr. Loud admitted that he did not recall what was being referred to where it was noted that Complainant served as the team leader for the revisions of the Director's Policy and the associated implementation documents. (TR 1163) Complainant was also assigned to represent Laboratory participation in the American Society of Mechanical Engineers Research and Development QA Group. (TR 1150) During the applicable assessment period, Complainant received his Master's degree in Business Administration Technology Management. (TR 350- 351; CX 30) Mr. Derkacs commented on Complainant's performance assessment that Complainant was the only subject matter expert in the group who supported the independent assessment program and participated in almost all of the AA-2 assessments requiring QA support. (EX S)

or her mental anguish is the proximate result of respondent's unlawful discriminatory conduct. See Bigham v. Guaranteed Overnight Delivery, 95-STA-37 (ALJ 05/08/96)(adopted by ARB 09/05/96); Crow v. Noble Roman's Inc., 95-CAA-8 (Sec'y 02/26/96). See Also Blackburn v. Metric Constructors, Inc., 86-ERA-4 (Sec'y 10/31/91). Complainant bears the burden of proving the existence and magnitude of any such injuries; although, as a caveat, it should be noted that medical or psychiatric expert testimony on this point is not required. Jones v. EG&G Defense Materials, Inc., 1995-CAA-3 (ARB 09/29/98); Lederhaus v. Paschen, 91-ERA-13 (Sec'y 10/26/92).

   Complainant is entitled to reasonable costs, expenses and attorney fees incurred in connection with his complaint. 42 U.S.C. §5821(b)(2)(B). Complainant did not submit an itemization of costs and expenses incurred in connection with his complaint. Moreover, Complainant's attorney did not submit a fee petition detailing the work performed, the time spent on such work, and the hourly rates of those performing the work.

   The Rules of Practice and Procedure before the Office of Administrative law Judges allow the administrative law judge to make part of the record any motion for attorney fees authorized by statute, any supporting documentation, and any determinations thereon. 29 C.F.R. §18.54(c). Accordingly, Complainant shall, within twenty (20) days from receipt of this Recommended Decision and Order, file and serve a fully supported application for costs and expenses including attorney fees. Thereafter, Respondent shall have ten (10) days from receipt of the application in which to file a response.

   Based upon the foregoing findings of fact, conclusions of law and upon the entire record, this Judge RECOMMENDS the following PRELIMINARY ORDER:

(1) (1) Respondent shall provide Complainant with a four percent (4%) salary increase retroactive to October 1, 1997, plus interest from that date. Interest shall be calculated pursuant to 26 U.S.C. §6621.

(2) Respondent shall reimburse Complainant with five vacation days.

(3) Respondent shall immediately expunge Complainant's performance assessment of the second paragraph in the comments section, which references "unfavorable customer feedback". Respondent shall also immediately expunge Complainant's performance assessment of Mr. Loud's August 27, 1997 note.

(4) Respondent shall pay Complainant compensatory damages in the amount of $15,000.00.

It is FURTHER RECOMMENDED that:

(5) Complainant shall, within twenty (20) days from receipt of this Recommended Decision and Order, file and serve a fully supported application for costs and expenses including attorney fees. Thereafter, Respondent shall, within ten (10) days from receipt of the application, file a response.

       DAVID W. DI NARDI
       Administrative Law Judge

Boston, Massachusetts

DWD:jgg

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. §24.8, a petition for review is timely filed with the Administrative Review Board; U.S. Department of Labor; Frances Perkins Building; Room S-4309; 200 Constitution Avenue, N.W.; Washington, DC 20210. Such a petition for review must be received by the Administrative Review Board within ten (10) business days of the date of this Recommended Decision and Order and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).