1 This case has been assigned to a panel of two Board members, as authorized by Secretary's Order 2-96. 61 Fed. Reg. 19,978 §5 (May 3, 1996).
2 The Secretary of Labor issued final agency decisions in ERA whistleblower cases prior to 1996. In April 1996 the Secretary delegated this authority to the newly-created Administrative Review Board. Secretary's Order 2-96, 61 Fed. Reg. 19978 (May 3, 1996). See also 29 C.F.R. §24.8 (2000).
3 References to the 1991 ALJ Dec. are to the opinion as published on the Department of Labor's World Wide Web site www.oalj.dol.gov, using the OALJ citation format found at www.oalj.dol.gov/cite.htm.
4 As an aside, we note specifically our disagreement with Georgia Power's exaggerated reaction to one statement from the Secretary's 1995 decision. In its brief in support of its stay motion, Georgia Power argues that the Secretary erred and proclaims that "Incredibly, Secretary Reich concluded that Mr. Williams inherently would have included Complainant's assertions of wrongdoing and predictions of NRC intervention as a corollary to McDonald's lack of cooperation with NOCA.'" Georgia Power brief at 6, quoting Sec'y 1995 Dec. at 24 (emphasis supplied). What the Secretary really said was "[Sr. V.P.] Williams admitted that he, at least, informed them [i.e., Georgia Power executives Dahlberg and Baker] of some of the concerns raised in the [Hobby] April 27 memo, which inherently would have included Complainant's accusations of wrongdoing and predictions of NRC intervention as a corollary to McDonald's lack of cooperation with NOCA."
In its full context, the Secretary's statement plainly is reasonable, albeit inartful in its use of the word "inherent." If McDonald informed Dahlberg fully about the contents of Hobby's April 27 memo, then the Secretary's statement plainly is correct because it follows that McDonald would have reported Hobby's concerns about his (McDonald's) alleged non-cooperation and possible licensure repercussions at the NRC. These concerns are clear on the face of the memorandum. Thus in suggesting that such a reporting was "inherent," the Secretary apparently assumed that McDonald's report to his superiors about Hobby's concerns would have been comprehensive and truthful, and would have included aspects of Hobby's April 27 memo that were critical of his own behavior. McDonald openly admitted making a report to his superiors about Hobby's April 27 memo; if McDonald withheld this critical information when making his report to Baker and Dahlberg, such an omission would raise significant doubts about McDonald's credibility.
5 Hobby's complaint was filed in 1990. The ERA was amended in 1992; however, the language relating to reinstatement is the same in both the pre- and post-1992 versions of the statute.
6 Board Member E. Cooper Brown did not participate in the consideration of this case.