ARB CASE NOS. 99-054
99-064
ALJ CASE NOS. 98-ERA-40
98-ERA-42
DATE: September 29, 2000
In the Matter of:
HARRY L. WILLIAMS,
SHERRIE G. FARVER,
COMPLAINANTS,
v.
LOCKHEED MARTIN CORPORATION,
LOCKHEED MARTIN ENERGY SYSTEMS, INC.,
RESPONDENTS.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant: Edward A. Slavin, Jr., Esq.,
St. Augustine, Florida
For the Respondent:
Charles W. Van Beke, Esq., Wagner, Myers & Sanger, Knoxville,
Tennessee
FINAL DECISION AND ORDER
These cases were brought under the employee protection provisions of the
Energy Reorganization Act of 1974, as amended, 42 U.S.C. §5851 (1994); the Clean Air Act,
42 U.S.C. §7622 (1994); the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. §9610 (1994); the Federal Water Pollution Control Act, 33 U.S.C.
§1367 (1994); the Safe Drinking Water Act, 42 U.S.C. §300j-9 (1994); the Solid Waste
Disposal Act, 42 U.S.C. §6971 (1994); and the Toxic Substances Control Act, 15 U.S.C.
§2622 (1994) (collectively, the "whistleblower acts").
[Page 2]
Complainants Harry L. Williams and Sherrie G. Farver were employees of
Lockheed Martin Energy Systems, Inc. (LMES) at an LMES facility in Oak Ridge, Tennessee. They
alleged that LMES and Lockheed Martin Corporation (Lockheed Martin) violated the whistleblower
acts by surreptitiously recording the private portion of a public meeting, and that the taping was part
of an ongoing campaign of covert surveillance of LMES whistleblowers. The Administrative Law
Judge recommended that we grant Respondents' motion for summary decision. We agree with the
ALJ's recommendation and dismiss the complaints.
BACKGROUND
The material facts (which were not disputed by Complainants) are as follows.
On March 23, 1998, Williams and Farver attended a public meeting of LMES employees at the Oak
Ridge Associated Universities in Oak Ridge, Tennessee. The purpose of the meeting was to allow
physicians who had been studying employee health concerns related to possible exposures to toxic
materials at the Oak Ridge facilities to discuss their findings. Recommended Decision and Order
(R. D. and O.) at 2. The meeting was open to the public, but was followed by an unannounced
impromptu session involving only the physicians and LMES employees. An LMES employee who
had planned to attend was injured just before the meeting, and an LMES official, in a "spur-of-
the- moment reaction to the medical problem," set up a tape recorder in the room so that the
injured employee would be able to hear what had transpired. The tape recorder was left running
unattended during the private portion of the meeting, and the tapes ultimately were removed not by
LMES management but by one of the meeting participants. R. D. and O. at 8-9.
1 The ALJ also recommended that the
complaint against Lockheed Martin be dismissed because Complainants did not allege that Lockheed Martin
was their employer. R. D. and O. at 9.
2 We have previously denied
Complainants' motions for oral argument and summary reversal of the R. D. and O. See Order dated
April 20, 1999.
3 Each complaint consists of ten
paragraphs. Paragraphs one through six explicitly and exclusively refer to the March 23 meeting. Paragraph
seven alleges that "[p]reviously, Respondents gave the impression of surveillance and the reality of
both overt and covert surveillance, for example Lockheed Martin Energy Systems' covert surveillance of
public protests and overtly taping a July 11, 1996 closeout briefing meeting between workers and residents
and NIOSH, in response to employees who filed a confidential request for NIOSH health hazard
evaluation." Paragraphs eight and nine both addressed the relief sought. Paragraph ten offers
assistance, presumably in the investigation of the complaint. See Complaint regarding Harry L.
Williams, dated April 8, 1998; Complaint regarding Sherrie G. Farver, dated April 8, 1998.
4 For unexplained reasons,
Complainants argue that the ALJ erred in dismissing the complaints "for failure to state a claim . . .
." Complainants' Opening Brief (Comp. Br.) at 16.
5 OALJ Rule 18.36(b), 29 CFR
§18.36(b), provides a procedure for challenging an ALJ's order suspending an attorney from further
participation in a proceeding before the ALJ, i.e., the suspended attorney may appeal the suspension
to the Chief Administrative Law Judge. The record does not indicate whether Mr. Slavin appealed the
suspension to the Chief Judge as provided in the regulation.
6 We do not even attempt to list all
of the personal insults which Mr. Slavin heaps upon the ALJ. However, the following is a partial list of
invective contained in Complainants' Opening Brief to this Board:
"The ALJ allowed his prejudices to run this case." Comp. Br. at 17.
"The ALJ created a hostile litigation environment . . . ." Id.
"The ALJ tried to make mincemeat of a hostile working environment. . .
." Id.
The Board "should reject, reverse and remand the ALJ's arbitrary, capricious,
unconstitutional, arbitrary [sic], capricious [sic], insolent, hostile and irascible actions in this
case." Id.
Reference to the "ALJ's kangaroo court" Id. at 19 n.17.
The ALJ is accused of "[h]olding the Prehearing Conference . . . under stressful,
ungracious and unfriendly circumstances, with no water for counsel, no welcome, little or
no eye contact and no handshake with Complainant or their counsel, with an uncivil demand
that Complainant and their counsel identify themselves before being allowed into the OALJ
courtroom, while OALJ showed greater courtesy to Lockheed's counsel. . . ."
Id. at 19 n.17.
The ALJ is charged with "[i]ssuing an insulting, pejorative and half-baked
Recommended Decision and Order . . . ." Id. at 20 n. 17.
"The ALJ had a barely hidden agenda: narrowing the law to hurt
whistleblowers." Id. at 21.
"The ALJ was overtly hostile. The ALJ's one-way 'reign of error' shows
partiality toward Respondents. . . ." Id.
"The ALJ shows palpable, almost pathological 'prejudice' was [sic] against
protected activity by [sic] the part of Complainants, wasting their time and funds and
robbing them of their dignity and their day in Court." Id.
"The ALJ showed no signs of an active social conscience, or appreciation for
whistleblowers, or judicial independence or judicial temperament." Id. at 22.
The ALJ was "[t]ilting toward the retaliators. . . ." Id. at 23.
"The ALJ's refusal to allow Complainants to testify was unreasonable. It was
hostile. It was utterly unprecedented." Id.
"The ALJ forced Mrs. Farver and Mr. Williams both persons the Complaint
make clear have disabilities to travel to Cincinnati the week before Thanksgiving, while
not allowing them to testify." Id.
"Refusal to let Complainants testify is one of the most mortal errors ever
committed by a DOL ALJ akin to an intentional tort by the ALJ, who looks down his nose
at workers." Id.
"The ALJ made anger, bitterness and insults into an art form, like a judicial Don
Rickles." Id. at 24.
"The ALJ misrepresented, ridiculed and twisted the facts in an Oak Ridge
whistleblower surveillance civil rights case marginalizing Complainants. The ALJ's bias
is on display, not unlike a judicial confession." Id. at 27.
"The ALJ erred with his hostile mishandling of this case. . . ."
Id. at 29.
7 Because we dismiss the complaints
we need not address Lockheed Martin Corporation's Motion for Dismissal.