USDOL/OALJ Reporter: ARB Decision Caselist - February 2012

Approval of settlement agreement.

CONTRIBUTING FACTOR; COMPLAINANT IS NOT REQUIRED TO ESTABLISH THAT RESPONDENT HAD RETALIATORY ANIMUS

CONTRIBUTING FACTOR UNDER THE FRSA; WHERE THE RESPONDENT REVIEWED THE COMPLAINANT'S DISCIPLINE AND INJURY HISTORY AFTER THE COMPLAINANT REPORTED A WORK-RELATED PERSONAL INJURY, THE ARB FOUND AS A MATTER OF LAW THAT THE REPORT OF INJURY WAS A CONTRIBUTING FACTOR TO THE SUSPENSION

In DeFrancesco v. Union Railroad Co. , ARB No. 10-114, ALJ No. 2009-FRS-9 (ARB Feb. 29, 2012), the Complainant filed a complaint charging that the Respondent violated the FRSA employee protection provision when the Respondent suspended the Complainant for 15 days after he reported a slip-and-fall accident. Following the report of the accident, a supervisor decided to review the Complainant's discipline and injury history to determine whether he exhibited a pattern of unsafe behavior that required corrective action. It was following that review that the Complainant was suspended. After a hearing, the ALJ found that the Complainant failed to establish that his protected activity was a contributing factor in the adverse action and dismissed the complaint. On appeal, the ARB found that the ALJ had erred in his analysis of whether the Complainant's report of his injury was a contributing factor to the suspension because the ALJ had considered the "key inquiry" to be whether the Complainant could establish that supervisors were motivated by "retaliatory animus." The ARB wrote:

...This is legal error. DeFrancesco is not required to show retaliatory animus (or motivation or intent) to prove that his protected activity contributed to Union's adverse action. Rather, DeFrancesco must prove that the reporting of his injury was a contributing factor to the suspension. By focusing on the motivation of [the supervisors], the ALJ imposed on DeFrancesco an incorrect burden of proof, thus requiring remand.

    The ARB has said often enough that a "contributing factor" includes "any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision." The contributing factor element of a complaint may be established by direct evidence or indirectly by circumstantial evidence. Circumstantial evidence may include temporal proximity, indications of pretext, inconsistent application of an employer's policies, an employer's shifting explanations for its actions, antagonism or hostility toward a complainant's protected activity, the falsity of an employer's explanation for the adverse action taken, and a change in the employer's attitude toward the complainant after he or she engages in protected activity.

    If DeFrancesco had not reported his injury as he was required to do, Kepic would never have reviewed the video of DeFrancesco's fall or his employment records. Kepic admitted this at the hearing, testifying that such a review was routine after an employee reported an injury and that the purpose of the review was to determine "the root cause." Kepic stated that after seeing the video he reviewed DeFrancesco's injury and disciplinary records to determine whether there was a pattern of safety rule violations and what corrective action, if any, needed to be taken.

    While DeFrancesco's records may indicate a history and pattern of safety violations, the fact remains that his report of the injury on December 6 triggered Kepic's review of his personnel records, which led to the 15-day suspension. If DeFrancesco had not reported his fall and Kepic had not seen the video, Kepic would have had no reason to conduct a review of DeFrancesco's injury and disciplinary records, decide that he exhibited a pattern of unsafe conduct, and impose disciplinary action.

    Union's decision to suspend DeFrancesco for 15 days thus violated the direct language of the FRSA, which provides that a railroad carrier may not "suspend" an employee when the employee's actions are "due, in whole or in part, to the employee's lawful, good faith act done." The statute provides that a "good faith act" includes "notify[ing]" his employer of "a work-related personal injury." Applying the framework of proving a contributing factor under AIR 21, we can only conclude as a matter of law that DeFrancesco's reporting of his injury was a contributing factor to his suspension.

DeFrancesco , ARB No. 10-114, USDOL/OALJ Reporter at 6-8 (footnotes omitted). The ARB remanded the case for the ALJ to consider whether the Respondent showed by clear and convincing evidence that it would have suspended the Complainant absent the protected activity.

CLEAR AND CONVINCING EVIDENCE STANDARD

In DeFrancesco v. Union Railroad Co. , ARB No. 10-114, ALJ No. 2009-FRS-9 (ARB Feb. 29, 2012), the ARB held that where the Respondent reviewed the complainant's discipline and injury history after the complainant reported a work-related personal injury, the report of injury was a contributing factor to the suspension as a matter of law. Because the ALJ had not reached the issue of whether the Respondent showed by clear and convincing evidence that it would have suspended the Complainant absent the protected activity, the ARB remanded the case. The ARB wrote:

   The burden of proof under the clear-and-convincing standard is more rigorous than the preponderance-of-the-evidence standard. Clear and convincing evidence denotes a conclusive demonstration, i.e., that the thing to be proved is highly probable or reasonably certain. Clear and convincing evidence that an employer would have disciplined the employee in the absence of the protected activity overcomes the fact that an employee's protected activity played a role in the employer's adverse action and relieves the employer of liability.

DeFrancesco , ARB No. 10-114, USDOL/OALJ Reporter at 8 (footnotes omitted).

[Nuclear and Environmental Whistleblower Digest VII C 1]
[Nuclear and Environmental Whistleblower Digest VIII B 2 d]
SUMMARY DECISION; HOW ALJ MUST ANALYZE MOTION FOR SUMMARY DECISION AND ARB'S STANDARD AND SCOPE OF REVIEW OF ALJ'S GRANT OF SUMMARY DECISION

In Lee v. Parker-Hannifin Corp., Advanced Products Business Unit , ARB No. 10-021, ALJ No. 2009-SWD-3 (ARB Feb. 29, 2012), the ARB described how a motion for summary decision is to be analyzed and its standard and scope of review of ALJ's grant of summary decision:

   The Board reviews de novo an ALJ's grant of summary decision pursuant to 29 C.F.R. § 18.40 (2011). Pursuant to that regulation, summary decision is appropriate "if the pleadings, affidavits, material obtained by discovery or otherwise, or matters officially noticed show that there is no genuine issue as to any material fact and that a party is entitled to summary decision."4 The first step is to determine whether there is any genuine issue of a material fact. If the pleadings and documents the parties submitted demonstrate the existence of a genuinely disputed material fact, then summary decision cannot be granted. Denying summary decision because there is a genuine issue of material fact simply means that an evidentiary hearing is required to resolve some factual questions; it is not an assessment on the merits of any particular claim or defense.

    Determining whether there is an issue of material fact requires several steps. First, the ALJ must examine the elements of the complainant's claims to sift the material facts from the immaterial. Once materiality is determined, the ALJ next must examine the arguments and evidence the parties submitted to determine if there is a genuine dispute as to the material facts. The party moving for summary decision bears the burden of showing that there is no genuine issue of material fact. When reviewing the evidence the parties submitted, the ALJ must view it in the light most favorable to the non-moving party, the complainant in this case. The moving party must come forward with an initial showing that it is entitled to summary decision. The moving party may prevail on its motion for summary decision by pointing to the absence of evidence for an essential element of the complainant's claim.

    In responding to a motion for summary decision, the nonmoving party may not rest solely upon his allegations, speculation or denials, but must set forth specific facts that could support a finding in his favor. See 29 C.F.R. § 18.40(c). If the moving party presented admissible evidence in support of the motion for summary decision, the non-moving party must also provide admissible evidence to raise a genuine issue of fact. In reviewing an ALJ's summary decision, we do not weigh the evidence or determine the truth of the matters asserted.

Lee , ARB No. 10-021, USDOL/OALJ Reporter at 4-5 (footnotes omitted).

[Nuclear and Environmental Whistleblower Digest XII C 8]
[Nuclear and Environmental Whistleblower Digest XII D 13]
PROTECTED ACTIVITY; A COMPLAINANT'S CONDUCT CAN BE PROTECTED PROVIDED THAT THE COMPLAINANT HAD A REASONABLE BELIEF THAT THERE WOULD BE A VIOLATION OF THE SWDA OR OTHER PERTINENT LAWS, AND THAT THE CONDUCT WAS TAKEN PURSUANT TO THE COMPLAINANT'S EMPLOYMENT AUTHORITY OR WAS OTHERWISE WITHIN THE RIGHTS AFFORDED EMPLOYEES UNDER THE SWDA

In Lee v. Parker-Hannifin Corp., Advanced Products Business Unit , ARB No. 10-021, ALJ No. 2009-SWD-3 (ARB Feb. 29, 2012), the Complainant was an Environmental Health and Safety Coordinator at the Respondent's Advanced Products Business Unit. In response to a concern raised by the state environmental protection agency, the Complainant raised concerns with the highest ranking official at the facility that the Respondent's hazardous waste treatment from one evaporator was possibly non-compliant with federal and state regulations. Management informed the Complainant that it would schedule a meeting in about three weeks to discuss the matter. Two days later, the Complainant informed the official that he was "ordering" that the evaporator be shut down. Later that day the official informed the Complainant that he did not have the authority to shut down the evaporator, instructed him not to do so, and informed him that the company would investigate his concerns. Several days later, the Complainant shut down the evaporator and placed a padlock on it. That same day the Respondent began an investigation. The investigation found the Complainant's allegations to be without merit. The Complainant was then terminated because he shut down the evaporator.

The ALJ granted summary decision dismissing the Complainant's SWDA whistleblower complaint. The ALJ concluded that the undisputed facts established that the Complainant was not engaged in protected activity when he shut down the evaporator. On appeal, the ARB vacated the grant of summary decision and remanded for further proceedings. The ARB described in detail its holding that conduct can be afforded whistleblower protection provided that the complainant can demonstrate that he had a reasonable (objective and subjective) belief that there would be a violation of the SWDA and/or pertinent environmental laws, and that his conduct was either taken pursuant to his employment authority or otherwise was within the rights afforded employees under the SWDA.

The ARB looked to the language of the SWDA and relevant caselaw to find that protected activity is interpreted expansively under the SWDA. The ARB noted that it had previously found that conduct can constitute protected activity under the SWDA and other whistleblower laws. Such conduct has been found to include airline pilots who refuse to certify a plane as airworthy, taking photographs, making secret tape recordings, performance of quality control and quality assurance functions, and refusal to work.

The ARB noted that under the SWDA, the concern is external to the employee and focuses on environmental purposes. Thus, to secure the protection of the SWDA, actions of an employee whether in the form of a complaint, participation in an investigation, or conduct, must be reasonably be perceived by the employee as furthering the SWDA's purposes.

The ARB found that the ALJ's reliance on several decisions was misplaced. Harrison v. A.R.B. , 390 F.3d 752 (2d Cir. 2004), an STAA case, did not stand for the proposition that there is a distinction between safety complaints and conduct. Rather, the decision holds that the STAA may not necessarily protect an employee who engages in unauthorized conduct. Consolidated Coal v. Marshall , 663 F.2d 1211 (3d Cir. 1981), a FMSHA case, did not stand for the proposition that conduct is never protected. Rather, conduct is protected only if it is within the rights of the complainant to take, provided that the complainant "has a reasonable good faith belief that his conduct is in furtherance of the purposes of the act under which he seeks protection. " Lee , ARB No. 10-021, USDOL/OALJ Reporter at 11. The ARB acknowledged that in Sievers v. Alaska Air , ARB No. 05-109, ALJ No. 2004-AIR-028 (ARB Jan. 30, 2008), it was held that AIR21-protected activity requires more than aggressively carrying out one's duties for ensuring air safety. Rather, the complainant must communicate his or her concerns to management. Nonetheless, the ARB found that the conduct in Sievers for which AIR21 whistleblower protection was afforded � a pilot's decision, acting within the scope of his authority, to place an airplane out of service because of safety concerns � is functionally no different from the Complainant's conduct at issue in the present case.

The ARB summarized:

   While an employee's authority (or lack thereof) is not necessarily determinative of whether particular speech or conduct is protected it is a factor in assessing the objective reasonableness of an employee's belief that his conduct is in furtherance of the purposes of the whistleblower act under which he seeks protection. An employee may exceed his authority and thereby take his conduct outside of the protection afforded by the statute. "That employees are protected while presenting safety complaints does not give them carte blanche in choosing the time, place and/or method of making those complaints." Garn v. Benchmark Techs. , No. 1988-ERA-021, slip op. at 4 (Sec'y May 18, 1995). On the other hand, an unauthorized act may, under certain circumstances, be protected under the whistleblower statutes. The Secretary has concluded that the operative determination of whether intemperate or insubordinate (unauthorized) behavior may be eligible for protection requires a balancing of interests: "[t]he right to engage in statutorily-protected activity permits some leeway for impulsive behavior, which is balanced against the employer's right to maintain order and respect in its business by correcting insubordinate acts." Kenneway v. Matlack, Inc. , No. 1988-STA-020, slip op. at 3 (Sec'y June 15, 1989). Determining whether conduct is protected can thus turn on the objective reasonableness of an employee's belief of a violation, which can be affected by the extent of his/her professional authority to even make such a decision. Even unauthorized conduct may be protected as long as it is lawful and "the character of the conduct is not indefensible in its context." Id .

 

   This balancing of interests to determine whether an employee's unauthorized actions are defensible is, in our view, simply another way of arriving at a determination of the objective reasonableness of an employee's belief that his actions were protected. These analyses turn on the distinctive facts of each case.

Lee , ARB No. 10-021, USDOL/OALJ Reporter at 11-12 (emphasis as in original) (footnote omitted).

[Nuclear and Environmental Whistleblower Digest XIX]
SECTION 211(g) AS AFFIRMATIVE DEFENSE TO ERA WHISTLEBLOWER COMPLAINT BASED ON COMPLAINANT'S DELIBERATIVELY CAUSING A VIOLATION OF THE ERA OR AEA WITHOUT THE EMPLOYER'S DIRECTION; COLLATERAL ESTOPPEL BASED ON CRIMINAL CONVICTION

In Siemaszko v. First Energy Nuclear Operating Co. Inc. , ARB No. 09-123, ALJ No. 2003-ERA-13 (ARB Feb. 29, 2012), the ALJ granted the Respondent's motion for summary decision dismissing the Complainant's ERA whistleblower complaint pursuant to the affirmative defense provided by Section 211(g) of the ERA, 42 U.S.C.A. § 5851(g). Section 211(g) provides that the employee protection provision of the ERA, 42 U.S.C.A. § 5851(a), "shall not apply with respect to any employee who, acting without direction from his or her employer (or the employer's agent), deliberately causes a violation of any requirement of this chapter or of the Atomic Energy Act of 1954, as amended. [42 U.S.C. § 2011 et seq.]." The Complainant had been found guilty by a jury on three criminal counts related to violations of 18 U.S.C. §§ 1001 and 1002 for knowingly and willfully concealing and covering up, and causing to be concealed and covered up material facts in a matter within the jurisdiction of the NRC, and knowingly and willfully making, using, and causing others to make and use a false writing knowing that it contained material statements, which were fraudulent, to the NRC. See U.S. v. Siemaszko, 612 F.3d 450 (6th Cir. 2010). The ALJ found that the criminal convictions did not resolve the exact issue in § 211(g), but they did resolve dispositive facts that established a violation of the ERA and the AEA. On appeal the ARB found that the criminal convictions resolved two of the three elements of the § 211(g) defense, but that genuine issues of fact remained on the third element. The three elements of a § 211(g) affirmative defense are that (1) the complainant caused a violation of the ERA or AEA; (2) the violation was deliberate; and (3) the conduct occurred without the employer's direction.

The ARB noted that it would review the appeal "cognizant of the need to exercise caution in application of the § 211(g) affirmative defense to avoid undermining the broader remedial purpose of the statute. The applicability and impact of the § 211(g) defense must be analyzed case-by-case based on the specific facts of each case." Siemaszko , ARB No. 09-123, USDOL/OALJ Reporter at 12. The ARB then considered whether the doctrine of collateral estoppel prevented the relitigation of the relevant legal or factual issues. Because the final judgment in the case was a general guilty verdict, the record in the first litigation needed to be reviewed.

The ARB found that notwithstanding the general guilty verdicts, collateral estoppel applied to both the first two elements of the § 211(g) defense � there was no question that the Complainant had been convicted of illegally misrepresenting to or concealing from the NRC material facts or illegally causing someone else to misrepresent or conceal such material facts � and found guilty of deliberately participating in the efforts to deceive the NRC. Thus, collateral estoppel applied to these elements.

The ARB found, however, that an evidentiary hearing is required to determine whether the Complainant acted without the Respondent's direction. The ARB noted that it had previously ruled that "direction" could be expressed or implied; but that the "mere presence" of a supervisor during the illegal conduct is not enough; and that negligent management oversight may not be enough. The ARB stated that in keeping with the liberal application of whistleblower protections, "the overriding consideration is whether the employer was sufficiently involved such that a reasonable factfinder could conclude that there was expressed or implied 'direction' or 'pressure' on the complainant to commit the acts that led to the violation of the ERA or AEA." Siemaszko , ARB No. 09-123, USDOL/OALJ Reporter at 17. The ARB found that as the moving party, the Respondent had failed to demonstrate that there was no genuine issue of material fact on the question of whether the Complainant had acted of his own volition, and that there was ample evidence in the record to raise a genuine issue of material fact as to whether the Respondent directed the Complainant to violate the Acts. For example, the Complainant's supervisor had been convicted of participating in the same criminal fraud committed against the NRC, and in fact a team of the Respondent's employees had been indicted, convicted, or signed a deferred prosecution agreement. It was undisputed that the Complainant had prepared initial drafts and/or assisted in drafting responses to the NRC upon the Respondent's request. There was an overwhelming amount of evidence in the record supporting the inference that the Respondent and its employees operated with the singular goal of keeping the Plant open despite an NRC Bulletin that made a shutdown was a real threat, and the responses to the NRC were obviously written to avoid such a shut down. There was evidence that the Complainant's entire management chain was familiar with the problem raised by the NRC. The Complainant submitted evidence that all of the responses to the NRC were subject to an interactive process of review, revision, and editing by a number of individuals, many of whom were his superiors and/or supervisors.

One member of the ARB wrote separately, concurring with the remand, but disagreeing that collateral estoppel should be applied to the first two elements of the § 211(g) defense given the difficulty of applying collateral estoppel in the context of a prior criminal trial where only a general verdict was issued. The concurring member also pointed out that under a strict reading of § 211(g), "a relatively insignificant or technical violation of a procedural regulation under the Acts would deprive a whistleblower complainant of his cause of action as readily as the most intentional and egregious misconduct," Siemaszko , ARB No. 09-123, USDOL/OALJ Reporter at 25, and that this could not have been what Congress intended. Consequently, the concurring member recommended applying § 211(g) in the same manner as the treatment of "after acquired evidence" under McKennon v. Nashville Banner Pub. Co. , 513 U.S. 352 (1995). Thus, "a finding of deliberate misconduct by a complainant under § 211(g), would not completely bar [a complainant's ] retaliation cause of action but might affect any damages otherwise available." Siemaszko , ARB No. 09-123, USDOL/OALJ Reporter at 26.

[STAA Whistleblower Digest IV A 2 d]
CAUSATION; EMPLOYER'S KNOWLEDGE; "BUREAUCRATIC IGNORANCE" CANNOT SHIELD RESPONDENT FROM LIABILITY

In Warren v. Custom Organics , ARB No. 10-092, ALJ No. 2009-STA-30 (ARB Feb. 29, 2012), the Complainant testified that when he began verbally reporting problems with trucks to his manager, the manager requested that the complaints be in writing. The Complainant and other drivers filled out pre-trip checklists noting any problems with the assigned truck. The Complainant testified that when he tried to turn in the checklists, the manager told the Complainant to keep them. Thus, the Complainant left the checklists in the truck. The ARB found that these facts established that the manager had constructive knowledge of problems reported by the Complainant by virtue of the Complainant's initial complaints to the manager and other supervisors, and the checklists left in the truck in accordance with the manager's instructions. The ARB held that the Complainant was not required to prove "direct personal knowledge on the part of" the manager that he engaged in protected activity. The Board stated that "[i]ndeed, the law 'will not permit an employer to insulate itself from liability by creating �layers of bureaucratic ignorance' between a whistleblower's direct line of management and the final decision-maker.'" Warren , ARB No. 10-092, USDOL/OALJ Reporter at 7-8 (citation omitted). The ARB remanded for the ALJ to make findings on whether the Complainant had engaged in protected activity of which the Respondent had constructive knowledge.

One member of the Board wrote separately to note his disagreement that the "bureaucratic ignorance" legal proposition applied to the facts of this case. This member noted that the caselaw on which the proposition was based involved creating layers between direct line management and the final decision-maker. In the instant case, the immediate supervisor and the final decision maker were one in the same. Moreover, whether the manager was on constructive notice was immaterial as the Complainant already engaged in protected activity by making oral complaints. Thus, there was no need for a remand on the issue of protected activity (albeit there did need to be a remand on the issue of causation).

[STAA Whistleblower Digest II H 4 a]
SUBSTANTIAL EVIDENCE STANDARD OF REVIEW; REMAND WHERE ALJ EMPLOYED THE WRONG BURDENS OF PROOF

In Warren v. Custom Organics , ARB No. 10-092, ALJ No. 2009-STA-30 (ARB Feb. 29, 2012), the ARB found that although it is bound by the substantial evidence standard of review of the ALJ's findings of fact, grounds for reversal of such findings may exist where the ALJ applied the wrong legal standard in reaching those findings. In Warren , the ALJ had applied the burdens of proof applicable to STAA whistleblower cases prior to the 2007 amendments to the STAA as part of the 9/11 Commission Act. The 2007 amendments reduced the burden of proof for complainants and raised it for employers. Because the ARB could not ascertain whether the ALJ definitely resolved certain conflicting evidence and factual inconsistencies due to employing the incorrect legal standard, the ARB remanded to the ALJ to make specific factual findings under the proper burden of proof standard.

[STAA Whistleblower Digest V A]
[STAA Digest V B 1 a]
PROTECTED ACTIVITY; FACT THAT REPORTING SAFETY ISSUES IS PART OF TRUCK DRIVER'S DUTIES DOES NOT PREVENT SUCH REPORTS FROM BEING PROTECTED ACTIVITY

In Warren v. Custom Organics , ARB No. 10-092, ALJ No. 2009-STA-30 (ARB Feb. 29, 2012), the ALJ erred as a matter of law in concluding that the Complainant's oral safety complaints were not protected because they were part of his job duties The ARB stated that "[t]he Secretary and Board have consistently found that employees who report safety concerns as part of their job responsibilities engage in protected activity." The ARB noted that one court of appeals had reasoned that quality control inspectors play a crucial role in enforcing NRC regulations and consequently, "[i]n a real sense, every action by quality control inspectors occurs �in an NRC proceeding,' because of their duty to enforce NRC regulations." Warren , ARB No. 10-092, USDOL/OALJ Reporter at 7-8, quoting Mackowiak v. University Nuclear Sys., Inc ., 735 F.2d 1159, 1163 (9th Cir. 1984). The ARB held that "[t]his rationale applies with equal force to employees ... whose job duties include monitoring the safety of the trucks they operate."

Order denying reconsideration.

The ARB exercised its discretion not to review the Administrator's SCA wage determination where, because of the passage of time, the appeal may have been moot.

Appeal dismissed for want of prosecution.

CLEAR AND CONVINCING EVIDENCE THAT RESPONDENT WOULD HAVE ELIMINATED THE COMPLAINANT'S POSITION EVEN IN THE ABSENCE OF PROTECTED ACTIVITY; EVIDENCE OF COST-CUTTING PROGRAM

In Wignall v. Union Pacific Railroad Co. , ARB No. 10-103, ALJ No. 2009-FRS-5 (ARB Feb. 22, 2012), the ARB found that substantial evidence supported the ALJ's finding that the Respondent established by clear and convincing evidence that it would have abolished the Complainant's welder position even absent any protected activity where the Respondent had implemented a cost-cutting program called Project 75. In this regard, the Complainant's supervisor had consulted with the Director of Track Maintenance for the service unit and obtained permission to abolish a welder and add a welder helper to make the gang consistent with the rest of the two-man welding gangs on the maintenance side of the service unit. The supervisor had also consulted with the Director prior to abolishing various other operator positions, and had made other cost cutting measures during the same period of time. The supervisor estimated that the Respondent saved tens of thousands of dollars from these initiatives, including the elimination of the Complainant's job and the other section jobs.

The Superintendent of the service unit testified to an instance where an arc welder position in the service unit was abolished "only five days after it was filled, replacing the welder with a welder helper." The arc welder position was changed to a welder helper after the Superintendent reviewed all manning on welding gangs across the service unit and identified specific jobs for elimination for cost savings purposes. The Superintendent also learned that some three-man gangs had two welders and one welder helper, and requested that they be changed to one welder with two welder helpers for cost savings. The Superintendent testified that the cost-saving measure affected some management level employees, who either lost their jobs or were reassigned, and that there was a reduction pool made in an effort to give people whose jobs were being cut an opportunity to look for other employment with the Respondent. The Complainant appeared to agree that a welder on a two-person welder gang could be effectively replaced by a welder helper, and stated at the hearing that the welder helper could be paid approximately $2.83 per hour less than a welder.

NOTICE OF INTENT TO FILE IN DISTRICT COURT; ARB REINSTATES APPEAL TO DOCKET WHERE COMPLAINANT ARGUED THAT THE ARB HAD MISCONSTRUED HER INTENTION; ADJUDICATIVE LATITUDE IN CONSTRUING PAPERS FILED BY PRO SE LITIGANTS

In Wimer-Gonzales v. J.C. Penney Corp., Inc. , ARB No. 10-148, ALJ No. 2010-SOX-45 (ARB Feb. 7, 2012), the Complainant filed a motion for reconsideration of the ARB's dismissal of her DOL complaint so that so could pursue her case de novo in federal district court. The Complainant argued that she had not intended the Board to dismiss her complaint so she could proceed in district court, but had only communicated that the ARB appeal had gone beyond 180 days without a decision and that she knew of her right to take the case to district court. The Board found that although the Complainant had titled her filing "Notice of Intent to File Complaint in the United States District Court," it would reinstate her appeal given her pro se status. The Board noted that it had issued an Order to Show Cause before dismissing the appeal.

Approval of settlement agreement.

[STAA Whistleblower Digest III D]
[STAA Whistleblower Digest XIII C]
DEFERRAL TO ARBITRATION UNDER A COLLECTIVE BARGAINING AGREEMENT; NO DEFERRAL WHERE ARBITRATOR DID NOT ADDRESS ELEMENTS OF STAA WHISTLEBLOWER PROTECTION COMPLAINT

In Lachica v. Trans-Bridge Lines , ARB No. 10-088, ALJ No. 2010-STA-27 (ARB Feb. 1, 2012), under the STAA regulations in effect when the ALJ conducted the hearing, the Secretary of Labor was permitted to defer to the outcome of arbitration proceedings under an applicable collective bargaining agreement when the arbitration �dealt adequately with all factual issues,� the proceedings were �fair, regular, and free of procedural infirmities,� and the outcome of the proceedings �was not repugnant to the purpose and policy of the Act.� 29 C.F.R. 1978.112(c). The regulations were amended in 2010 to delete this provision. In Lachica , the Complainant had been discharged for unprofessional behavior following a grievance hearing, and under the CBA the discharge went to arbitration and was denied. The ALJ reviewed the transcript of the arbitration hearing and the arbitrator's decision, and deferred to it. The arbitrator had concluded that the Complainant had been fired for just cause in that he engaged in unprofessional behavior toward passengers.

On appeal, the ARB reviewed the record of the arbitration and concluded that neither the subject matter of the hearing nor the arbitrator's decision addressed the whistleblower protections of the STAA. The arbitrator, for example, did not determine whether the Complainant engaged in protected activity under the STAA or whether such activity contributed to the Complainant's lay-off and eventual discharge. Thus, the ARB vacated the ALJ's dismissal and remanded for further proceedings. The ARB did not decide whether it was appropriate to defer to the arbitration proceedings under a regulation that was later removed.