USDOL/OALJ Reporter: ARB Decision Caselist -- April 2007

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Summary :

Approval of settlement agreement.

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Summary :

In Daigle v. United Parcel Service , ARB No. 05-025, ALJ No. 2004-STA-42 (ARB Apr. 30, 2007), the ARB found that substantial evidence supported the ALJ's finding that the Complainant was fired because of dishonest manipulation and fabrication of delivery records, and performance deficiencies, rather than his protected activity.

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Summary :

PROTECTED ACTIVITY; CAA PROTECTED ACTIVITY MUST RELATE TO REASONABLE BELIEF THAT RESPONDENT WAS EMITTING, OR MIGHT EMIT, POLLUTANT INTO THE AMBIENT AIR

In McKoy v. North Fork Services Joint Venture , ARB No. 04-176, ALJ No. 2004-CAA-2 (ARB Apr. 30, 2007), the Complainant contended that he engaged in protected activity when he informed a Senate regional staff member and a Homeland Security Site Director that he had observed a supervisor and another employee improperly handling asbestos in the basement of the Plum Island Animal Disease Center bio-containment area and that he believed the asbestos could escape into the air. The ARB stated that "[t]o establish that this was CAA-protected activity, [the Complainant] must prove that when he expressed his concerns about the asbestos to [the Senate staffer and the DHS officer], he reasonably believed that [his Employer] was emitting, or might emit, asbestos into the ambient air. 'Ambient air' is 'that portion of the atmosphere, external to buildings, to which the general public has access.'" USDOL/OALJ Reporter at 6 (footnotes omitted). The Board continued:

Employee complaints about purely occupational hazards are not protected under the CAA's employee protection provisions. For example, in the case of asbestos, even though the Environmental Protection Agency has regulated the manner in which it is handled within workplaces to prevent emissions into the outside air, if the complainant is concerned only with airborne asbestos as an occupational hazard within the workplace, and not in the outer, ambient air, the employee protection provisions of the CAA would not be triggered.

Id. at 7 (footnotes omitted). The ARB agreed with the ALJ's finding that the Complainant had first raised the issue of a possible failure in the air handling system at the ALJ hearing, and therefore when the Complainant spoke to the officials he did not have a reasonable belief that asbestos could escape into the ambient air. Thus, the Complainant did not engage in protected activity under the CAA.

PROTECTED ACTIVITY; MERE SPECULATION ABOUT POSSIBLE SECURITY BREACHES DOES NOT SUPPORT A FINDING OF REASONABLE BELIEF OF A CAA OR FWPCA VIOLATION

In McKoy v. North Fork Services Joint Venture , ARB No. 04-176, ALJ No. 2004-CAA-2 (ARB Apr. 30, 2007), the Complainant contended that he engaged in protected activity when he informed a Senate regional staff member and a Homeland Security Site Director about alleged security lapses in the bio-containment area of the Plum Island Animal Disease Center. The ARB agreed with the ALJ that the Complainant's concerns about security were speculative and did not constitute a reasonable belief that security breaches could enable persons to gain access to hazardous material and therefore harm the environment. Although the Complainant testified that he "could have" stolen materials and in "some way" escaped undetected, he presented no supporting evidence, whereas the record indicated that the Center had elaborate measures in place to prevent the removal of pathogens. The ARB found that the Complainant did not establish protected activity under either the CAA or the FWPCA.

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Summary :

SETTLEMENT; REPUDIATION; ALLEGATION THAT THE SETTLEMENT WAS MISLEADING AS TO THE WITHHOLDING OF TAXES; MERE REGRET DOES NOT RENDER A SETTLEMENT VOIDABLE

In Taylor v. Greyhound Lines , ARB No. 06-137, ALJ No. 2006-STA-19 (ARB Apr. 30, 2007), the ALJ had recommended approval of a settlement agreement, but on automatic review by the ARB the Complainant sought to repudiate the agreement. The ARB stated that an STAA settlement agreement is a contract which is binding and conclusive, but which may be challenged upon a showing of fraud, duress, illegality, or mutual mistake. In Taylor , the Complainant argued that the Respondent tricked him into signing the settlement agreement, but proffered no supporting evidence. The Complainant also alleged that he agreed to the settlement in a hasty manner. The ARB, however, held that "[m]ere regret will not make a settlement voidable." USDOL/OALJ Reporter at 3. The Complainant contended that the settlement erroneously listed him as an employee; that when he was remitted the settlement check, taxes had been withheld; and that he was due the full dollar amount stipulated in the agreement. The ARB rejected this contention, observing that the settlement covered incidents that occurred while the Complainant was an employee, that the settlement consistently listed him as an employee, and that the settlement explicitly stated that tax withholdings would be made. Thus, the ARB found that the settlement was not misleading or deceptive.

SETTLEMENT; REPUDIATION; ALLEGATION OF FAILURE TO PROVIDE LETTER OF REFERENCE REQUIRED BY SETTLEMENT IS A QUESTION OF BREACH OF CONTRACT, WHICH IS WITHIN THE JURISDICTION OF THE FEDERAL DISTRICT COURTS, NOT THE ARB

In Taylor v. Greyhound Lines , ARB No. 06-137, ALJ No. 2006-STA-19 (ARB Apr. 30, 2007), the Complainant argued for repudiation of a settlement agreement based, inter alia , on the alleged failure of the Respondent to produce a letter of reference as required in the settlement. The ARB found that this contention related to whether the settlement had been breached, which is a question under the jurisdiction of the federal district courts.

SETTLEMENT; CLAUSE FORBIDDING RE-EMPLOYMENT IS NOT INHERENTLY VOID AS AGAINST PUBLIC POLICY

In Taylor v. Greyhound Lines , ARB No. 06-137, ALJ No. 2006-STA-19 (ARB Apr. 30, 2007), the Complainant argued for repudiation of a settlement agreement based, inter alia , on the contention that a clause forbidding re-employment was too restrictive. The Complainant argued that given the Respondent's market share, the clause essentially precluded him from seeking employment with any motor carrier and would be a violation of his Civil Rights. The ARB rejected the contention, noting that the Complainant had freely agreed to the waiver, and not provided any evidence, legal authority or analysis in support of his position. The ARB also stated that it was "not aware of any case precedent holding such reemployment waivers void as against the public interest," whereas a recent Tenth Circuit decision upheld such a provision in a Title VII case. Jencks v. Modern Woodmen of America , 479 F.3d 1261, 1266-67 (10th Cir. 2007).

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Summary :

Dismissal based on Complainant's Notice of Intent to File in Federal District Court.

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TRIBAL SOVEREIGN IMMUNITY

In Kanj v. Viejas Band of Kumeyaay Indians , ARB No. 06-074, ALJ No. 2006-WPC-1 (ARB Apr. 27, 2007), the ARB accepted interlocutory review "on the question whether Congress abrogated the Band's sovereign immunity from suit by a private citizen pursuant to [the Federal Water Pollution Control Act a/k/a the Clean Water Act] 33 U.S.C.A. § 1367 (West 2001)." The ARB affirmed the ALJ's findings that Congress abrogated tribal sovereign immunity under the FWPCA, and that tribal immunity from suit based on self-government in purely intramural matters did not arise.

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Summary :

Approval of settlement agreement.

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Summary :

TIMELINESS OF COMPLAINT; TELEPHONE CALL TO OSHA TO GIVE A "HEAD'S UP" ABOUT ANTICIPATED RETALIATION

In Farrar v. Roadway Express , ARB No. 06-003, ALJ No. 2005-STA-46 (ARB Apr. 25, 2007), the Complainant argued that he timely filed a STAA complaint when he called OSHA from a truck stop to give it a "heads-up" that he suspected that he may be retaliated against in an upcoming grievance hearing. The ARB rejected this contention, holding that that, "while � 29 C.F.R. § 1978.102 provides that '[n]o particular form of complaint is required,' at the very least a complainant must evince his current intention to file a complaint." USDOL/OALJ Reporter at 8. The ARB distinguished Harrison v. Roadway Express, Inc. , 1999-STA-37 (ALJ Dec. 16, 1999), aff'd ARB No. 00-048 (ARB Dec. 31, 2002), because in that case the complainant had personally visited an OSHA office and provided specific and detailed information on the nature of the complaint sufficient to permit OSHA to build the entire complaint from the record of the interview, whereas in the instant case the Complainant had not alleged that he had provided such details, nor that his phone call was memorialized in notes or a logbook as had happened in Harrison .

TIMELINESS OF COMPLAINT; JUDICIAL LATITUDE TOWARDS PRO SE LITIGANTS IN RAISING ARGUMENTS

In Farrar v. Roadway Express , ARB No. 06-003, ALJ No. 2005-STA-46 (ARB Apr. 25, 2007), the ARB affirmed the ALJ's finding that the Complainant had not filed a timely complaint of retaliation under the STAA in regard to his discharge. However, the ALJ erred in failing to address the Complainant's allegation that he had attempted to raise a complaint with OSHA alleging that he was retaliated against during a grievance proceeding because the Respondent had presented false and misleading information. OSHA had dismissed the complaint for lack of timeliness and closed the investigation. When the Complainant subsequently mailed a packet of materials to OSHA, it returned the packet to the Complainant unopened. The Complainant alleged that a letter in that packet clarified that his complaint included the Respondent's actions at the grievance proceedings. Before the ALJ, the Respondent filed a motion to dismiss based on lack of timeliness of the complaint following the discharge. The Complainant's response only addressed timeliness in regard to the discharge and did not address timeliness in regard to the grievance proceeding. Although the ALJ was aware of the allegation concerning the grievance proceeding, he recommended dismissal based on motion to dismiss. On appeal to the ARB, the ARB construed the Complainant's position liberally and with a degree of judicial latitude because of his pro se status, and remanded for the ALJ to make findings regarding the grievance hearing allegations.

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NOTICE OF APPEAL OF ADMINISTRATOR'S FINAL DECISION ON WAGE CONFORMANCE CHALLENGE

In In re Aiken , ARB No. 07-017 (ARB Apr. 23, 2007), the petitioners were engineering technicians under a U.S. Army contract who challenged their classification in the SCA Directory of Occupations. After several years of seeking a decision on their challenge, the petitioners received notice that a Wage-Hour Regional Wage Specialist had been assigned to investigate. Several months later, the Wage Specialist denied the conformance request, and the petitioners asked for instructions on how to obtain further review within DOL. The Wage Specialist responded that the 29 C.F.R. Part 8 regulations did not provide for any further administrative appeal. Shortly thereafter the petitioners filed an appeal with the ARB. Wage and Hour filed a motion to dismiss arguing that the ARB did not have jurisdiction because the Administrator had not issued a final decision in accordance with 29 C.F.R. § 4.56(a)(2). The ARB agreed, but admonished Wage and Hour in the future to provide reasonable notice of what constitutes a final order of the Administrator subject to ARB review.

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