USDOL/OALJ Reporter: ARB Decision Caselist - January 2016

NO PROTECTED ACTIVITY UNDER AIR21 WHERE EMPLOYEE OPPOSED FEDERAL FLIGHT DECK OFFICER (FFDO) PROGRAM GENERALLY BUT DID NOT DEMONSTRATE GOOD FAITH BELIEF THAT FLYING WITH FFDO PILOT WOULD POSE SAFETY RISK

In Burdette v. ExpressJet Airlines, Inc. , ARB No. 14-059, ALJ No. 2013-AIR-16 (ARB Jan. 21, 2016), the Complainant filed a complaint alleging that he was terminated from his position as a pilot based on his protected activity of refusing to alternate flight legs with a Federal Flight Deck Officer (FFDO), an individual authorized and trained to carry a firearm in aircraft cockpits to defend against acts of criminal violence. The Complainant alleged that he felt unsafe flying in the presence of an FFDO, and over the course of several years he engaged in a number of actions indicating his opposition to the FFDO program, including sending complaint letters and refusing to fly with FFDOs. These actions culminated in his being required to sign a “Last Change Agreement” and being issued a warning letter from his employer. On the date of the alleged protected activity, the Complainant was assigned to fly as co-pilot with an FFDO. After learning that his request for a replacement pilot had not been granted, the Complainant designated the FFDO to be the flying pilot for each flight leg of the multi-day trip, stating that the assignment was necessary for him to safely manage the cockpit in the presence of the FFDO. After refusing the on-call chief pilot’s request that he alternate flying legs of the trip with the FFDO, the Complainant was terminated from his position.

The Board found that substantial evidence in the record supported the ALJ’s finding that the Complainant failed to prove that he engaged in AIR21 protected activity. The Board agreed with the ALJ that the Complainant did not demonstrate a good faith belief that flying with an FFDO would have been too great a distraction for him to fly safely, given that the Complainant testified that his previous flights with FFDOs had been conducted safely and that he was not distracted as a flying pilot on these flights. The Board stated that, while Complainant opposed the FFDO program and believed it to be unsafe generally, his testimony indicated that he believed he could fly safely with FFDOs. Further, the Board found that the Complainant put forth no evidence that individuals with his training and experience would have believed that safety would have been a risk had he acted as flying pilot.

ARBITRATION AGREEMENT FROM PRIOR SETTLEMENT DOES NOT DEPRIVE DOL OF JURISDICTION OVER AIR21 COMPLAINT; DISTRICT COURT, NOT ALJ, HAS JURISDICTION TO ENFORCE SETTLEMENT AGREEMENTS

In Mawhinney v. American Airlines , ARB No. 14-060, ALJ No. 2012-AIR-17 (ARB Jan. 21, 2016), the Respondent in an AIR 21 action filed a motion to compel arbitration and dismiss the claim, alleging that the Complainant signed an arbitration agreement as part of a prior settlement agreement with the Respondent. The ALJ granted the motion, finding that the Complainant agreed to arbitrate all claims arising from his employment relationship with the Respondent. The Complainant appealed the dismissal to the Board.

The Board found that the existence of the settlement agreement did not prohibit the Complainant from pursuing his AIR21 claim. It also noted that the parties simultaneously participated in the arbitration process and the AIR21 claim without either party raising any objection. The Board further found that the issue of whether a settlement agreement has been breached is not a matter for the ALJ or the Board to determine, but rather, may be brought before the district court as a matter of contract dispute as provided by the AIR21 whistleblower provision. Thus, the Board found that the ALJ erred in dismissing the claim and remanded the claim to OALJ for proceedings consistent with the Board’s decision. On remand, the Board instructed the ALJ to clarify the positions of the parties given that they willingly participated in both arbitration and the claim under AIR 21.

DUE PROCESS; IN-PERSON, EVIDENTIARY EVIDENCE ORALLY WAIVED BY RESPONDENTS’ LEGAL REPRESENTATIVE IN SCA DEBARMENT CASE; WAIVER UNENFORCEABLE BECAUSE IT WAS NOT IN WRITING AS REQUIRED BY THE THEN APPLICABLE PROCEDURAL REGULATION AND WHERE RESPONDENTS ARGUED PERSUASIVELY THAT WAIVER CAUSED THEM PREJUDICE

In Administrator, Wage and Hour Div., USDOL v. Mesa Mail Service, LLC , ARB No. 14-075, ALJ No. 2009-SCA-11 (ARB Jan. 21, 2016), the ALJ decided the case on the record, without an in-person evidentiary hearing, based on the parties’ oral agreement that because the dispute was primarily a legal one, the ALJ could decide the case on the written record. This oral agreement was made on behalf of the Respondents by its legal representative. On appeal to the ARB, the Respondents argued that they had clearly made it known to their legal representative and the ALJ that they wanted an in-person hearing and were entitled to such. The Respondents contended that their representative had waived the in-person hearing against the best interests of the Respondents, “and/or wrongfully induced Respondents to do so based on the alleged fact that the ALJ could properly adjudicate the case upon a paper hearing. Cf. 29 C.F.R. [§] 18.39. ” USDOL/OALJ Reporter at 2-3. Id . at 4. The Respondents alleged prejudice, asserting that they denied the opportunity to demonstrate a good faith compliance defense and “unusual circumstances” in order to avoid debarment. The ARB vacated the ALJ’s decision and remanded for an evidentiary hearing “ absent a valid written waiver. ” The ARB found that “ [t]he regulation in effect when the ALJ cancelled the hearing required that a party’s waiver of his or her right to present evidence at a hearing be submitted in writing. 29 C.F.R. § 18.39 (2013). Thus, absent a valid written waiver, the ALJ must hold a hearing, given the factual disputes in this matter. ” Id . at 3-4.The ARB noted that the SCA regulations entitled the Respondents to a hearing before the ALJ, stated that it was persuaded by the Respondents’ argument “that being denied a hearing prejudiced their case because they were denied the opportunity to testify about circumstances that may warrant relief from any debarment order under the SCA. ” Id . at 4.

INTERLOCUTORY APPEAL BASED ON DUE PROCESS RIGHTS WHERE ADMINISTRATOR HAD NOT TIMELY FORWARDED MATTER TO OALJ FOR HEARING; FAILURE TO SHOW ISSUES WERE UNREVIEWABLE ON APPEAL OR THAT TIMELINESS QUESTION WAS A THRESHOLD DISPOSITIVE JURISDICTIONAL ISSUE

In William Nichols d/b/a Nichols Tree Farm , ARB No. 16-008, ALJ No. 2015-TAE-13 (ARB Jan. 19, 2016), the Respondent petitioned for review of the ALJ’s order denying the Respondent’s motion to dismiss. The Respondent had argued that the case should not be allowed to proceed based on his due process rights under the 5th Amendment to the U.S. Constitution because of significant delay by the Administrator in referring the case to OALJ for hearing. The ARB found that the petition was an interlocutory appeal, and that the Respondent had not demonstrated that his appeal fell within the collateral order exception. The ARB found that the Respondent had conceded that the question of whether the case should be permitted to proceed to hearing may require the ARB to remand the case to the ALJ for additional fact finding, and thus, the ALJ’s order of dismissal could not be said to have conclusively determined a disputed question of law. The ARB also found that the Respondent had not demonstrated that the issues raised were effectively unreviewable on appeal from a final judgment. The ARB found that the Respondent had cited no support for his argument that the timeliness issues were threshold dispositive jurisdictional issues.

Order approving Complainant's withdrawal of petition for ARB review.

Order approving settlement agreement.