Administrative Review Board Decisions

The following case summaries were created by the Administrative Review Board staff.

McMillan v. American Federation of Government Employees, Local Union 2145, ARB No. 2024-0044, ALJ No. 2021-SOC-00003 (ARB Jan. 31, 2025) (Decision and Order Reversing ALJ's Recommended Decision and Order)

UNION DUES; REMEDY FOR VIOLATIONS OF THE SOC REGULATIONS

In McMillan v. American Federation of Government Employees, Local Union 2145, ARB No. 2024-0044, ALJ No. 2021-SOC-00003 (ARB Jan. 31, 2025), Complainant, a member of Respondent, a local labor organization, alleged that Respondent violated the SOC regulations by raising dues without notice to members. The ARB previously affirmed the ALJ's recommendation to enter default judgment against Respondent and remanded the case to the ALJ to reassess the relief ordered. On remand, the ALJ determined that all members of Local 2145 whose dues were unlawfully raised were complainants in this litigation and issued a Recommended Decision and Order Awarding Remedy, ordering Respondent to reimburse every Local 2145 member who paid the unlawfully raised dues in an amount equal to the excess dues they paid.

The ARB found that the ALJ erred in determining the proper parties. The ARB observed that the complaint referred by OLMS to OALJ described Cassandra McMillan as the complainant, the ALJ's notices were served on McMillan but not on other members of Local 2145, and other members of Local 2145 were not provided an opportunity to participate in, or be excluded from, the litigation. Based on this, the ARB concluded that Cassandra McMillan was the sole complainant and the ALJ erred when he stated that "all the members of Local 2145 were part of the litigation headed by Ms. McMillan" and directed that the case caption be amended to reflect that determination. Although the OALJ Rules of Practice and Procedure provide a mechanism to consolidate proceedings, no related proceedings were pending before an ALJ and thus no cases were consolidated.

The ARB further determined that neither the OALJ Rules of Practice and Procedure nor the SOC regulations permit complainants to bring complaints on behalf of others. Accordingly, Complainant's action was not and could not have been brought on behalf of all members of Local 2145 who paid the increased dues. In determining the appropriate remedy, the ARB observed that the SOC regulations, like Title I of the LMRDA, provide the ARB with a broad mandate to fashion appropriate relief. The ARB found that injunctive relief was not warranted given that the membership of Local 2145 subsequently voted to set dues at a lower amount and the record did not contain any indication that this vote violated the SOC. However, the ARB found that monetary relief was warranted, in an amount equal to the excess dues that were collected between when Respondent unlawfully raised the dues and when the vote to set dues at a lower amount was implemented.

The ARB reversed the ALJ's recommended remedial order and ordered Respondent to reimburse Complainant in an amount equal to the excess dues it collected during the period when dues were unlawfully raised.

Berg v. Nicholas Services, LLC, ARB No. 2025-0027, ALJ No. 2023-AIR-00012 (ARB Jan. 31, 2025) (Decision and Order Denying Interlocutory Appeal)

ORDER OF DISMISSAL; INTERLOCUTORY APPEAL

In Berg v. Nicholas Services, LLC, ARB No. 2025-0027, ALJ No. 2023-AIR-00012 (ARB Jan. 31, 2025), Complainant filed a petition for interlocutory appeal with the ARB to review an ALJ's order to produce employee witnesses.

Complainant filed a motion with the ALJ to issue subpoenas to five of Respondents' employees to appear to testify at a hearing. On November 8, 2024, the ALJ denied Complainant's subpoena request, finding that the AIR21 did not provide subpoena authority. However, the ALJ ordered Respondents to produce employee witnesses pursuant to 29 C.F.R. § 1979.107(d) and 29 C.F.R. § 18.12(b)(3), which he found provided ALJs with the authority to compel witnesses within a party's control.

Respondents filed a motion to certify the issue for interlocutory review. The ALJ issued an Order Granting Motion to Certify Interlocutory Appeal and Staying Proceedings. Respondents filed an interlocutory appeal with the ARB regarding whether an ALJ has the authority to compel witnesses within a party's control to testify.

When determining whether to accept an interlocutory appeal, the ARB follows the procedures provided in 28 U.S.C. § 1292(b). Interlocutory review requires two separate actions: (1) the ALJ must certify that the interlocutory order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, and (2) when those elements are met, the Board then exercises its unfettered discretion in deciding whether to accept or reject the petition for review.

Respondents asserted that there was a controlling question of law with substantial grounds for difference of opinion because Fagan v. Dep't of the Navy called into question whether ALJs have the authority to compel the testimony of witnesses under a party's control. In Fagan, the ARB found that neither the Comprehensive Environmental Response Compensation and Liability Act, the Safe Drinking Water Act, nor their implementing regulations provided ALJs with the express authority to issue subpoenas to third parties. However, it did not address the separate issue regarding an ALJ's authority to compel the testimony of employee witnesses.

The ARB found that the class of witnesses at issue in Fagan materially differed from the class of witnesses at issue in Berg. Unlike the missing authority in Fagan, Respondents did not dispute that the plain language of 29 C.F.R. § 18.12(b)(3) expressly authorizes ALJs to "compel the testimony of persons within a respondent's control." Rather, Respondents contended that the regulation itself was unconstitutional.

As a matter of discretion, the ARB found that those arguments did not justify delaying the hearing. Even assuming Fagan did call into question settled law regarding a different class of witnesses subject to different statutory and regulatory provisions, and even further assuming the ARB would then have the delegated authority to rule on the facial constitutionality of a regulation, the ARB found it still would not create the "exceptional circumstances" warranting the "piecemeal" appeal of this matter.

DeVoe v. AMSA Contractors, Inc. ARB No. 2025-0011, ALJ No. 2024-STA-00061 (ARB Jan. 28, 2025) (Decision and Order Dismissing Petition for Review)

ORDER OF DISMISSAL; COMPLAINANT FAILED TO FILE AN OPENING BRIEF AND RESPONSE TO ORDER TO SOW CAUSE

In DeVoe v. AMSA Contractors, Inc., ARB No.2025-0011, ALJ No. 2024-STA-00061 (ARB Jan. 28, 2025), the ARB dismissed Complainant's petition for review for failing to file a response to the Board's Order to Show Cause and an opening brief.

On November 20, 2024, Complainant filed a Petition for Review of the ALJ's Decision and Order Denying Complaint. The ARB issued a Briefing Order, and Complainant did not file an Opening Brief. Therefore, on January 8, 2025, the ARB issued an Order to Show Cause ordering Complainant to explain why the ARB should not dismiss the appeal for failure to comply with the ARB's order and briefing requirements. Complainant did not respond or file an opening brief. Accordingly, the ARB dismissed the appeal.

Cleary v. CSX Transportation, Inc., ARB Nos. 2025-0020, -0021, ALJ Nos. 2020-FRS-00028, 2021-FRS-00012 (ARB Jan. 14, 2025) (Decision and Order Approving Settlement and Dismissing Case with Prejudice)

VOLUNTARY DISMISSAL; APPROVAL OF SETTLEMENT

In Cleary v. CSX Transportation, Inc., ARB Nos. 2025-0020, -0021, ALJ Nos. 2020-FRS-00028, 2021-FRS-00012 (ARB Jan. 14, 2025), the ARB approved Complainant and Respondent's Joint Motion to Withdraw Petition for Review and Approve Settlement. The case was before the ARB following an ALJ's Order Granting Respondent's Motion for Summary Decision. Before the ARB, Complainant and Respondent filed a Joint Motion to Withdraw Petition for Review and Approve Settlement, which included a copy of the proposed settlement. The parties requested that the Board approve the settlement agreement.

The ARB approved the parties' settlement agreement as fair, adequate, and reasonable, and not in contravention of the public interest. The ARB noted that this determination was restricted only to the FRSA case over which it has jurisdiction. The ARB also noted that the parties' submissions, including the settlement agreement, remain subject to the Freedom of Information Act. The ARB further noted that it construed the language of the agreement's confidentiality clause as allowing Complainant to communicate with or provide information to state and federal authorities about suspected violations of law involving Respondent. Lastly, the ARB construed the parties' provision that the agreement shall be interpreted under the laws of the state of Florida as not limiting the authority of the Secretary of Labor, the ARB, and any federal court regarding any issue arising under the FRSA.

Accordingly, the ARB approved the settlement agreement and dismissed the appeal with prejudice.

Siddiqui v. Transit Administrative Center, Inc., ARB No. 2024-0012, ALJ No. 2021-NTS-00001 (ARB Jan. 14, 2025) (Decision and Order)

NTSSA EMPLOYER COVERAGE; COMPLAINANT DID NOT SHOW THAT RESPONDENT WAS A CONTRACTOR OR SUBCONTRACTOR OF A PUBLIC TRANSPORTATION AGENCY

In Siddiqui v. Transit Administrative Center, Inc., ARB No. 2024-0012, ALJ No. 2021-NTS-00001 (ARB Jan. 14, 2025), the ARB affirmed the ALJ's decision that Respondent was not covered under the NTSSA.

Chicago licenses companies called "Affiliations" to provide branding, dispatch, insurance, and other services to taxicab owners. Several Affiliations, in turn, contracted with Respondent for cashiering and other back-of-house services.

PACE is a regional public transportation provider in and around Chicago. PACE provides eligible disabled riders access to subsidized rides with private taxicabs in its "Taxi Access Program" (TAP). Eligible riders use a PACE-issued swipe card to pay the taxicab drivers for their rides. The drivers then go to their Affiliation's cashier, like Respondent, to "cash out" for their portion of the fare. Although Respondent cashed out TAP fares for drivers on behalf of Affiliations, Respondent indisputably did not contract with PACE.

Complainant worked for Respondent as a cashier supervisor. Respondent terminated Complainant's employment on May 28, 2020, allegedly because he cashed out a taxicab driver against company orders. Complainant countered that he was fired because he raised concerns about withholding payments in violation of local taxicab rules and regulations. After his termination, Complainant filed a complaint against Respondent, alleging it terminated him in violation of the NTSSA.

The NTSSA prohibits "[a] public transportation agency, [or] a contractor or a subcontractor of such agency," from discriminating against an employee for engaging in activity protected by the NTSSA. After a hearing, an ALJ found that Complainant had not shown that Respondent was covered as a public transportation agency, or as a contractor or subcontractor thereof.

On appeal, Complainant argued that Respondent was a subcontractor of PACE, a public transportation agency, because it contracted with the Affiliations, who, in turn, contracted with PACE as part of the TAP. Although Complainant established that Respondent contracted with the Affiliations, the ARB agreed with the ALJ that Complainant failed to produce sufficient evidence that would allow the ALJ to conclude that the Affiliations, in turn, contracted with PACE. Complainant did not identify or produce any contract, written or otherwise, between the Affiliations and PACE, or offer any testimony or other evidence that would allow the ALJ to find that such a contract existed.

Complainant urged the ARB to infer that the Affiliations contracted with PACE merely from the fact that they participated in the TAP and accepted payments under that program. However, the ARB determined that Complainant had not adequately explained how participation in that local program, alone, made the Affiliations a "contractor" of PACE under the NTSSA. Complainant did not identify any arrangements or agreements, written or otherwise, between the Affiliations and PACE, any evidence as to how the Affiliations' participation in the TAP was defined, regulated, or structured, or any other evidence as to the precise nature of the relationship between PACE and the Affiliations, whether as part of the TAP or otherwise. Complainant also did not offer evidence as to the mechanism(s) by which PACE paid the Affiliations, including how and under what rules, terms, or conditions PACE paid the Affiliations for TAP fares.

The ARB also rejected Complainant's reliance on the definitions of "contract" and "third party contract" from a Federal Transit Administration Circular. The ARB determined that Complainant had not explained how the Circular related in any way to deciding the issue of coverage under the NTSSA, and that any such relationship was not evident based on the Circular's content.

Nix v. Symphony Technology Solutions, Inc., ARB No. 2025-0013, ALJ No. 2024-AIR-00008 (ARB Jan. 8, 2025) (Decision and Order Approving Settlement and Dismissing Case with Prejudice)

VOLUNTARY DISMISSAL; APPROVAL OF SETTLEMENT

In Nix v. Symphony Technology Solutions, Inc., ARB No. 2025-0013, ALJ No. 2024-AIR-00008 (ARB Jan. 8, 2025), the ARB approved Complainant and Respondent's settlement agreement. On December 23, 2024, the parties filed a Joint Motion to Dismiss Appeal together with an executed Settlement Agreement and Release of Claims with the ARB, in which they agreed to dismiss the matter with prejudice.

The ARB approved the parties' settlement agreement as fair, adequate, and reasonable, and not in contravention of the public interest. The ARB noted that this determination was restricted only to the AIR21 case over which it has jurisdiction. The ARB also noted that it construed the language of the agreement's confidentiality clause as allowing Complainant to communicate with or provide information to state and federal authorities about suspected violations of law involving Respondent. Further, the ARB construed the settlement agreement's "Governing Law" provision, which states that the agreement shall be interpreted under the laws of the state of Tennessee, as not limiting the authority of the Secretary of Labor, the ARB, and any federal court regarding any issue arising under AIR21.

Accordingly, the ARB approved the settlement agreement and dismissed the appeal with prejudice.

Yates v. Superior Air Charter LLC, ARB No. 2025-0015, ALJ No. 2015-AIR-00028 (ARB Jan. 8, 2025) (Order Approving Withdrawal of Complainant's Petition for Review and Dismissing Appeal)

ORDER APPROVING WITHDRAWAL OF COMPLAINANT'S PETITION FOR REVIEW AND DISMISSING APPEAL

In Yates v. Superior Air Charter LLC, ARB No. 2025-0015, ALJ No. 2015-AIR-00028 (ARB Jan. 8, 2025), the ARB granted Complainant's request to withdraw Complainant's petition for review and dismiss the appeal.

On November 14, 2024, an ALJ issued a D. & O. Awarding Attorney Fees. Complainant filed a Petition for Review of the ALJ's ruling, but Complainant subsequently requested to withdraw his Petition for Review. Pursuant to AIR 21 regulations, "a party may withdraw his or her objections . . . if the case is on review, with the Board."

The ARB granted Complainant's request to withdraw the petition for review and dismissed the appeal.

Anderson v. United States Postal Service, ARB No. 2024-0055, ALJ No. 2023-CAR-00001 (ARB Jan. 7, 2025) (Decision and Order)

PROTECTED ACTIVITY; EEO COMPLAINTS AND GRIEVANCES DID NOT CONSTITUTE PROTECTED ACTIVITY UNDER CAARA

In Anderson v. United States Postal Service, ARB No. 2024-0055, ALJ No. 2023-CAR-00001 (ARB Jan. 7, 2025), the ARB affirmed the ALJ's Order Granting Respondent's Motion for Summary Judgement. Complainant alleged that she suffered retaliation for filing two EEO complaints, two union grievances, and refusing to accept a settlement offer related to an EEO claim. The ALJ found that Complainant failed to demonstrate protected activity relating to criminal or antitrust laws, as required by the Criminal Antitrust Anti-Retaliation Act (CAARA). On appeal, Complainant similarly failed to explain how her grievance or EEO-related activities could constitute protected activities under CAARA. Accordingly, the Board affirmed the ALJ's decision and denied Complainant's complaint.