USDOL/OALJ Reporter: ARB Decision Caselist -- June 2010

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Summary :

[STAA Digest II B 2 c iii]]
TIMELINESS OF BLACKLISTING CLAIM; ARB ADOPTS DISCOVERY RULE AS TO CLAIM ACCRUAL

In Beatty v. Inman Trucking Management, Inc. , ARB No. 09-032, ALJ Nos. 2008-STA-20 and 21 (ARB June 30, 2010), the ARB found that the statute of limitations on the Complainants' blacklisting complaint did not accrue until the date they discovered, almost two years after they had been terminated by the Respondent, that a negative DAC report (an employment record maintained by a consumer reporting agency on commercial truck drivers) submitted by the Respondent prevented their obtaining other truck driving employment. The ARB noted that there was nothing in the record to suggest that the Respondent ever communicated to the Complainants its decision to file an arguably negative DAC report, or that the Complainants were required to look at the DAC report. The ARB acknowledged that complainants have an affirmative duty of diligent inquiry in response to an adverse event, but found that it did not necessarily follow that the Complainants in the instant case should have suspected that the Respondent would file a negative DCA report upon their termination.

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Approval of complainant's motion to withdraw appeal of ALJ's decision

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Approval of withdrawal of objections to OSHA findings.

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Approval of withdrawal of objections to OSHA findings.

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Approval of withdrawal of objections to OSHA findings.

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PROTECTED ACTIVITY; LACK OF REASONABLE BELIEF OF AIR SAFETY VIOLATION ONCE DETERMINATION MADE THAT SUSPICIOUS DEVICE WAS FAA FLIGHT APPROVED; MERE WORDS DO NOT CREATE VIOLATION OF AIR SAFETY REGULATIONS WHERE THERE WAS NO VIOLATION IN FACT

In Hindsman v. Delta Air Lines, Inc. , ARB No. 09-023, ALJ No. 2008-AIR-13 (ARB June 30, 2010), the Complainant, a lead flight attendant, noticed, before departure of a flight, a suspicious portable oxygen device. She asked the gate agent and captain about it. Both replied that they thought that devices such as portable oxygen concentrators were allowed on board. A lead agent told the Complainant that the Respondent would not delay the flight and that she would have to decide whether to take the passengers who owned the device, or to deplane them. The Complainant consulted a manual and determined that the device was approved for flight by the FAA. Upon being informed by another flight attendant that the device was FAA-approved, the caption told that attendant to "shut the door and let's go." The flight left 8 minutes late. Two days later the Complainant wrote to the Respondent's flight safety director to report the incident, alleging that the Respondent was going to dispatch the flight before she found out that the device was flight approved. Several months later the Complainant was discharged on grounds of excessive absenteeism. The Complainant filed an AIR21 complaint.

The ALJ granted summary decision in favor of the Respondent on the ground that, although the Complainant had been aggressively carrying out her duties to ensure safety, once she discovered that the device was flight approved she could not have had a reasonable belief that flying with the device on board violated air safety regulations, and therefore she had not engaged in protected activity. The ARB agreed. On appeal the Complainant argued that her memo to the flight safety director was protected activity. The ARB, however, found that the memo demonstrated that no violation of air safety regulations occurred, and that according to the Complainant's own account of the incident , she, the captain, and the flight attendant all knew that the device was acceptable before the plane took off. The Complainant also argued that there had been a violation because ground personnel put on-time departure over safety by attempting to dispatch the flight without investigation of the device. The ARB agreed with the ALJ, however, that "mere words do not create an FAA violation when the parties' actual conduct does not violate the FAA regulations." USDOL/OALJ Reporter at 6, quoting ALJ decision at 6. Moreover, while the lead agent did say that the flight would not be delayed, she also told the Complainant to decide whether the passengers and the device or to deplane them; the Complainant chose to determine whether the device was FAA-approved and did so.

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Summary :

[STAA Digest II E 7]
REMANDS; ALJ DOES NOT HAVE THE AUTHORITY TO COMPEL OSHA TO CONDUCT INVESTIGATIONS

In Kerchner v. Grocery Haulers, Inc. , ARB No. 08-066, ALJ No. 2007-STA-41 (ARB June 30, 2010), OSHA had dismissed the blacklisting element of the Complainant's STAA whistleblower complaint on the ground that it was not timely filed. In making this finding, OSHA had identified the potential employer as the Respondent. The ALJ found that it was the Complainant's former employer and a union that were the Respondents rather than the potential employer, and that the blacklisting claim was timely in regard to the former employer. Noting that unlike the SOX and AIR21 regulations, the STAA regulations did not bar a remand to OSHA, the ALJ ordered a remand for an investigation of the merits of the blacklisting claim. The ARB found that the ALJ erred in ordering a remand, noting that it had held in Freeze v. Consolidated Freightways, Inc. , ARB No. 04-128, ALJ No. 2002-STA-4 (ARB Aug. 31, 2005), that "neither STAA nor its implementing regulations vest ALJs with authority to compel OSHA to conduct investigations." Kerchner , USDOL/OALJ Reporter at 4, quoting Freeze , slip op. at 2 n.3.

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Summary :

Approval of withdrawal of objections to OSHA findings.

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Summary :

otion for reconsideration filed four months after ARB's decision was untimely

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Approval of settlement agreement.

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Summary :

[STAA Digest XI B 4]
DISMISSAL FOR CAUSE; FAILURE TO APPEAR AT HEARING; ALJ ABUSED HIS DISCRETION IN DISMISSING CASE WHERE RESPONDENT WAS NOT ENTIRELY AT FAULT AND HAD NOT ENGAGED IN EGREGIOUS BEHAVIOR

In Stalworth v. Justin Davis Enterprises, Inc. , ARB No. 09-038, ALJ No. 2009-STA-1 (ARB June 16, 2010), the ARB found that, because the OALJ failed to serve the Respondent at the correct address, the ALJ abused his discretion in finding that the Respondent defaulted when it failed to appear at the hearing and in awarding the Complainant remedies in reliance on the default. Although the ARB found that the Respondent did not exercise due diligence in determining the location of the hearing once it learned of the date, and had filed an inadequate response to the ALJ's order to show cause, the ARB also found that the Respondent had not been entirely at fault and that its conduct was not so egregious that it should be denied the opportunity to present its case.

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