USDOL/OALJ Reporter: ARB Decision Caselist -- March 2006

USDOL/OALJ Reporter
Decisions of the Administrative Review Board
arch 2006

Bloodworth v. B&K Transportation, Inc. , ARB No. 06-006, ALJ No. 2005-STA-32 (ARB Mar. 31, 2006)

Title : Final Decision and Order Approving Settlement and Dismissing Complaint With Prejudice
Link : PDF
Case type : STAA Whistleblower
Summary : Settlement

Hillis v. Knochel Brothers, Inc. , ARB No. 03-136, ALJ No. 2002-STA-50 (ARB Mar. 31, 2006) (reissued)

Title : Final Decision and Order on Remand
Link : PDF
Case type : STAA Whistleblower
Summary :

[STAA Whistleblower Digest II B 2 d ii]
TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; WRONG FORUM; FILING WITH ANOTHER FORUM IN PURSUIT OF REMEDIES OTHER THAN THE STAA DOES NOT SUPPORT EQUITABLE TOLLING; HOWEVER, FILING A STAA COMPLAINT WITH THE WRONG FORUM MIGHT

In Hillis v. Knochel Brothers, Inc. , ARB No. 03-136, ALJ No. 2002-STA-50 (ARB Mar. 31, 2006), the ARB held that the reference in the STAA regulation at 29 C.F.R. § 1978.102(d)(3) to "filing with another agency" as an example of a circumstance that does not justify equitable tolling of the 180-day period for filing a STAA whistleblower complaint does not preclude tolling of the limitations period when a complainant has filed a STAA complaint in the wrong forum. The ARB reviewed the regulatory history of this regulation, and found that "'filing with another agency' refers to the proceedings initiated in the pursuit of remedies created by statutes or regulations other than the STAA." USDOL/OALJ Reporter at 7.

[STAA Whistleblower Digest II B 2 d ii]
TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; WRONG FORUM; MERELY MAKING PHONE CALLS TO STATE AGENCIES IS NOT THE FILING OF A COMPLAINT

In Hillis v. Knochel Brothers, Inc. , ARB No. 03-136, ALJ No. 2002-STA-50 (ARB Mar. 31, 2006), the ARB held that telephone calls to state agencies in which the Complainant's name was not taken down nor a report generated, and in which the agencies informed the caller that they did not have jurisdiction to receive the complaint, did not constitute the filing of a claim. Therefore, the "precise statutory claim mistakenly filed in the wrong forum" ground for equitable tolling did not apply to relieve the Complainant from the 180-day limitations period for filing a STAA whistleblower complaint.

[STAA Whistleblower Digest II B 2 d ii]

TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; WRONG FORUM; CLOCK IS STOPPED ONLY FOR THE PERIOD IN WHICH COMPLAINANT WAS UNAWARE THAT THE COMPLAINT HAD BEEN FILED IN THE WRONG FORUM

In Hillis v. Knochel Brothers, Inc. , ARB No. 03-136, ALJ No. 2002-STA-50 (ARB Mar. 31, 2006), the Complainant and/or his wife called a number of state agencies prior to filing his untimely STAA complaint with OSHA. The ARB held that such calls, standing alone, did not constitute the filing of a claim in the wrong forum to support equitable tolling of the STAA limitations period. However, assuming arguendo that they were filings of the precise claim mistakenly filed in the wrong forum, the complaint was still untimely because the Complainant did not file timely with OSHA after learning that the places he called did not have jurisdiction over STAA whistleblower complaints. Tolling only stops the clock only during the period in which the complainant was unaware that the complaint had been filed in the wrong forum.

Mistick Construction , ARB No. 04-051 (ARB Mar. 31, 2006)

Title : Decision and Order of Remand
Link : PDF
Case type : Davis-Bacon Act Prevailing Wage Determination
Summary :
DBA PREVAILING WAGE DETERMINATION; ABUSE OF DISCRETION IN COMBINING CBA WAGE RATES AND FAILING TO ADEQUATELY EXPLAIN WHY PRIVATE WAGE DATA WAS CONSIDERED INSUFFICIENT

In Mistick Construction , ARB No. 04-051 (ARB Mar. 31, 2006), the ARB found that the Administrator abused her discretion in combining various CBA wage rates into a single rate in determining the prevailing wage rates for six counties in the Pittsburgh, Pennsylvania area. The ARB also found that she abused her discretion when she did not adequately explain why she found private wage data from the five counties insufficient, and, despite that finding, did not consider federal project wage data.

Roseberry v. City of Portsmouth, New Hampshire , ARB No. 06-046, ALJ No. 2005-WPC-4 (ARB Mar. 31, 2006)

Title : Final Decision and Order Dismissing Petition for Review
Link : PDF
Case type : WPCA Whistleblower
Summary :
[Nuclear and Environmental Whistleblower Digest IX B 2]
TIMELINESS OF APPEAL; FAILURE OF POSTAL SERVICE TO MAKE TIMELY DELIVERY

In Roseberry v. City of Portsmouth, New Hampshire , ARB No. 06-046, ALJ No. 2005-WPC-4 (ARB Mar. 31, 2006), the ARB found that the Complainant had failed to establish equitable grounds for tolling of the limitations period for petitioning for ARB review. The Complainant argued that he had mailed his appeal five days before it was due with the good faith belief that this was ample time for the postal service to deliver the petition. The ARB, however, found that "[t]he failure to inquire of the Board whether the document had been delivered when the preservation of [the Complainant's] right to appeal was dependent upon timely receipt is evidence of a lack of due diligence."

Welch v. Cardinal Bankshares Corp. , ARB No. 06-062, ALJ No. 2003-SOX-15 (ARB Mar. 31, 2006)

Title : Order
Link : PDF
Case type : Sarbanes-Oxley Act Whistleblower
Summary :
REINSTATEMENT; PREREQUISITE TO ENFORCEMENT IS OPPORTUNITY FOR RESPONDENT TO MOVE FOR A STAY BY THE ARB

In Welch v. Cardinal Bankshares Corp. , ARB No. 06-062, ALJ No. 2003-SOX-15 (ARB Mar. 31, 2006), the ARB affirmed that the ALJ had issued a preliminary order of reinstatement and ordered that the Respondent would have ten days to move for a stay of that order. This issue arose because, in Welch , the ALJ had ordered the Respondent to reinstate the Complainant, but because he had issued a merits decision and a second decision on damages, and had erroneously placed a notice of appeal rights on the earlier merits decision, there was some confusion over when the matter became ripe for appeal to the ARB and whether the reinstatement order was merely recommended. When the Complainant sought enforcement of the reinstatement order in federal district court, the court concluded that the Respondent did not, under the circumstances of this case, have adequate notice, and that the ALJ's reinstatement order could not be enforced without the Respondent having had the opportunity to seek a stay from the ARB. The court therefore dismissed the enforcement action. The court, however, indicated that the dismissal was without prejudice to file a new motion to seek enforcement "should the ARB deny a stay on the merits."

Davis v. MTL of the Southeast, Inc. , ARB No. 05-151, ALJ No. 2005-STA-12 (ARB Mar. 30, 2006)

Title : Final Decision and Order Approving Settlement and Dismissing Complaint With Prejudice
Link : PDF
Case type : STAA Whistleblower
Summary : Settlement

Green v. Thompson, Inc. , ARB No. 05-049, ALJ No. 2004-STA-27 (ARB Mar. 30, 2006)

Title : Final Decision and Order Approving Settlement and Dismissing Complaint With Prejudice
Link : PDF
Case type : STAA Whistleblower
Summary : Settlement

Hibler v. Exelon Generation Co., LLC , ARB No. 05-035, ALJ No. 2003-ERA-9 (ARB Mar. 30, 2006)

Title : Final Decision and Order
Link : PDF
Case type : ERA Whistleblower
Summary :
[Nuclear and Environmental Whistleblower Digest XIX]
DELIBERATE VIOLATION; BURDEN OF PROOF

In ERA whistleblower cases, an 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" forfeits his or her whistleblower protection. 42 U.S.C.A. § 5851(g). This is an affirmative defense on which the employer bears the burden of proof by a preponderance of the evidence. In Hibler v. Exelon Generation Co., LLC , ARB No. 05-035, ALJ No. 2003-ERA-9 (ARB Mar. 30, 2006), the ARB agreed with the ALJ's finding that the Employer had proved by a preponderance of the evidence that the Complainant's false certification of weld inspections had been without direction from his employer, and had been a deliberate violation of NRC regulations promulgated pursuant to the ERA and the Atomic Energy Act. Thus, the Complainant was precluded from relief under the ERA whistleblower provision. The ARB agreed with the ALJ that, in view of this finding, it was not necessary to determine whether the Complainant had established a violation of the ERA whistleblower provision.

Jackson v. Logistics Services, Inc. , ARB No. 05-148, ALJ No. 2005-STA-23 (ARB Mar. 30, 2006)

Title : Final Decision and Order Approving Settlement and Dismissing Complaint With Prejudice
Link : PDF
Case type : STAA Whistleblower
Summary : Settlement

Collier v. Sunshine Concrete and Materials, Inc. , ARB No. 05-147, ALJ No. 2004-STA-62 (ARB Mar. 29, 2006)

Title : Final Decision and Order Approving Settlement and Dismissing Complaint With Prejudice
Link : PDF
Case type : STAA Whistleblower
Summary : Settlement

Hinds v. Ore-Cal Livestock, Inc. , ARB No. 06-002, ALJ No. 2005-STA-39 (ARB Mar. 29, 2006)

Title : Final Decision and Order Approving Settlement and Dismissing Complaint With Prejudice
Link : PDF
Case type : STAA Whistleblower
Summary : Settlement

Norman v. Wiley Sanders Truck Lines, Inc. , ARB No. 05-124, ALJ No. 2005-STA-18 (ARB Mar. 29, 2006)

Title : Final Decision and Order Approving Settlement and Dismissing Complaint With Prejudice
Link : PDF
Case type : STAA Whistleblower
Summary : Settlement

Sicard v. Nimbus Landscaping Materials, Inc. , ARB No. 05-080, ALJ No. 2005-STA-22 (ARB Mar. 29, 2006)

Title : Final Decision and Order Approving Settlement and Dismissing Complaint With Prejudice
Link : PDF
Case type : STAA Whistleblower
Summary : Settlement

Pardis v. B&I Auto Supply , ARB No. 05-103, ALJ No. 2005-STA-17 (ARB Mar. 27, 2006)

Title : Final Decision and Dismissal Order
Link : PDF
Case type : STAA Whistleblower
Summary : Withdrawal of objections to OSHA findings

Ayers v. Ryder Systems, Inc. , ARB No. 06-011, 2005-STA-15 (ARB Mar. 23, 2006)

Title : Final Decision and Order Approving Settlement and Dismissing Complaint With Prejudice
Link : PDF
Case type : STAA Whistleblower
Summary : Settlement

Isenmann v. Carthage Specialty Pallet Co. , ARB No. 06-009, ALJ No. 2005-STA-41 (ARB Mar. 23, 2006)

Title : Final Decision and Order Approving Settlement and Dismissing Complaint With Prejudice
Link : PDF
Case type : STAA Whistleblower
Summary : Settlement

Mouser v. Hoovestol, Inc. , ARB No. 06-034, ALJ No. 2005-STA-49 (ARB Mar. 23, 2006)

Title : Final Decision and Order Approving Settlement and Dismissing Complaint With Prejudice
Link : PDF
Case type : STAA Whistleblower
Summary : Settlement

Eash v. Roadway Express, Inc. , ARB Nos. 02-008 and 02-064, ALJ No. 2000-STA-47 (ARB Mar. 13, 2006)

Title : Order of Remand
Link : PDF
Case type : STAA Whistleblower
Summary :
[STAA DIGEST V B 2 a iv]
PROTECTED ACTIVITY; FATIGUE; COMPLAINANT'S FAILURE TO GET ENOUGH REST TO DRIVE DOES NOT, PER SE, REMOVE STAA PROTECTION

In Eash v. Roadway Express, Inc. , ARB Nos. 02-008 and 02-064, ALJ No. 2000-STA-47 (ARB Mar. 13, 2006), the ARB in an earlier decision had, inter alia , affirmed the ALJ's grant of summary decision to the Respondent on the ground that, under Porter v. Greyhound Bus Lines , ARB No. 98-116, ALJ No. 1996-STA-23 (ARB June 12, 1998), the STAA does not protect an employee who, through no fault of the employer, makes himself unavailable for work (in this instance by not getting enough rest to be ready to drive). Both parties appealed to the Sixth Circuit. At the motion of the Solicitor of Labor, who was representing the ARB, the Sixth Circuit remanded on this issue (the Sixth Circuit affirmed the ARB on another issue). The remand was based on the circumstance that in another case involving the same parties and similar facts, the ARB had reversed the ALJ. In the meantime, the ARB issued another decision involving the same parties in which the ARB held that the ALJ in that case erred as a matter of law when he concluded that the Complainant was not entitled to protection under the STAA because he had deliberately made himself available for work, finding in that case that the ALJ had misapplied Porter . Thus, in the instant case on remand from the Sixth Circuit, the ARB vacated that portion of the decision that conflicted with its later ruling and remanded the case to the ALJ for further proceedings.

Negron v. Vieques Air Link, Inc. , ARB No. 04-021, ALJ No. 2003-AIR-10 (ARB Mar. 7, 2006)

Title : Order Awarding Attorney's Fees and Costs
Link : PDF
Case type : AIR21 Whistleblower
Summary :
ATTORNEY'S FEES FOR WORK BEFORE THE ARB; ARGUMENT THAT RESPONDENT'S APPEAL HAD MERIT IS NOT GROUNDS FOR DENIAL OF FEE AWARD

In Negron v. Vieques Air Link, Inc. , ARB No. 04-021, ALJ No. 2003-AIR-10 (ARB Mar. 7, 2006), the Respondent challenged the Complainant's fee petition for work before the ARB on the ground that its appeal challenging the ALJ's decision had merit even though the ARB eventually sustained the ALJ's decision in favor of the Complainant. The ARB found that this is not a ground upon which an award of attorney's fees could be denied.

ATTORNEY'S FEES FOR WORK BEFORE THE ARB; COMPLAINANT'S ATTORNEY IS NOT REQUIRED TO DIVULGE FEE ARRANGEMENTS WITH OTHER CLIENTS TO JUSTIFY AN HOURLY RATE

In Negron v. Vieques Air Link, Inc. , ARB No. 04-021, ALJ No. 2003-AIR-10 (ARB Mar. 7, 2006), the Respondent challenged the Complainant's fee petition for work before the ARB on the ground that the fee petition failed to indicate the hourly rate that the Complainant's attorney charges for cases similar to the Complainant's, an argument that was raised before the ALJ in regard to that fee petition. The ARB agreed with the ALJ that AIR21 "contains no requirement that attorneys justify their billing rates by revealing fee arrangements made with other clients." Slip op. at 2.

ATTORNEY'S FEES FOR WORK BEFORE THE ARB; CHALLENGE TO FEE PETITION BASED ON ALLEGATION OF LACK OF ADEQUATE DETAIL REJECTED WHERE RESPONDENT DID NOT CHALLENGE ANY PARTICULAR ENTRY AND THE PETITION AND THE PETITION WAS OTHERWISE ADEQUATE

In Negron v. Vieques Air Link, Inc. , ARB No. 04-021, ALJ No. 2003-AIR-10 (ARB Mar. 7, 2006), the Respondent challenged the Complainant's fee petition for work before the ARB on the ground that the fee petition allegedly did not clearly state the attorney's hourly rate and did not contain a clear itemization of the complexity and type of services rendered. The ARB rejected this argument where the Respondent failed to challenge any particular time entry and the fee petition contained an itemized list of time billed on the matter that clearly described the services rendered and the rate charged. The ARB found the detail adequate and the stated overall number of hours for out-of-court service (29.25 hours) reasonable.

Getman v. Southwest Securities, Inc. , ARB No. 04-059, ALJ No. 2003-SOX-8 (ARB Mar. 7, 2006)

Title : Order Denying Reconsideration
Link : PDF
Case type : Sarbanes-Oxley Whistleblower
Summary :
MOTION FOR RECONSIDERATION OF ARB DECISION; ARB ADOPTS PRINCIPLES EMPLOYED BY FEDERAL COURTS

In Getman v. Southwest Securities, Inc. , ARB No. 04-059, ALJ No. 2003-SOX-8 (ARB Mar. 7, 2006), the ARB reiterated that it has adopted principles employed by the federal courts in deciding requests for reconsideration, such as "(i) material differences in fact or law from that presented to a court of which the moving party could not have known through reasonable diligence, (ii) new material facts that occurred after the court's decision, (iii) a change in the law after the court's decision, and (iv) failure to consider material facts presented to the court before its decision. " Slip op. at 1-2 (citations omitted). In Getman , the Board denied reconsideration where the Complainant's motion for reconsideration merely reiterated points raised in the original appeal and rejected in the Board's final decision.