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

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Summary :

[STAA Digest V A]
PROTECTED ACTIVITY; CONCURRING OPINION THAT CASE LAW EXTENDS PROTECTION TO THOSE WHO PROVIDE INFORMATION ABOUT VIOLATIONS, BUT NOT TO THOSE WHO ONLY SEEK INFORMATION

In Bucalo v. United Parcel Service , ARB No. 08-087, ALJ No. 2006-TSC-2 (ARB July 30, 2010), the Complainant filed a complaint under both the TSCA and the STAA related to his investigation of a mercury spill at one of the Respondent's sorting facilities. At the end of the evidentiary hearing, the ALJ granted a directed verdict in favor of the Respondent on the STAA complaint based on the conclusion that the Complainant had failed to present "any" evidence regarding a concern of a violation of the Federal Motor Carrier Safety Act. The ARB concluded that the ALJ erred in concluding that the Complainant failed to present evidence of STAA protected activity, quoting testimony of the Complainant to the effect that he had mentioned the STAA when meeting with supervisors on their treatment of the spill. The ARB nonetheless found that record clearly supported a finding that the Respondent suspended and discharged the Complainant for reasons unrelated to the alleged protected activity. One member concurred in the result, but found that the Complainant had not engaged in protected activity because the case law extends protection to those who provide information to employers about violations of the law at issue, but not those who, like the Complainant, merely seek information:

While I agree with my colleagues that that is at least "some" evidence that Bucalo had STAA on his mind, I write to emphasize that that it is not enough to preponderate on the issue of whether he engaged in protected activity. As in Luckie , during the spill incident, Bucalo asked for information out of concern for employee safety. But he did not provide information about a violation of a commercial motor vehicle safety regulation, standard, or order that had to be remedied in a specific way. By merely asking questions, he did not "file a complaint" or "begin a proceeding" within the meaning of the STAA.

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Summary :

[STAA Digest X A 3]
STAA SETTLEMENT AGREEMENT MUST BE SUBMITTED AND REVIEWED

In Coogler v. Schneider National Carriers, Inc. , ARB No. 09-133, ALJ No. 2009-STA-23 (ARB July 30, 2010), the Complainant submitted a voluntary withdrawal based on an amicable resolution of the case, and the the ALJ recommended dismissal of the complaint. On review, the ARB found that the ALJ had neither requested nor reviewed the settlement agreement. The ARB therefore ordered submission of the settlement agreement. Upon review the agreement, the ARB approved it.

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Summary :

PROTECTED ACTIVITY; COMPLAINT THAT DISLCOSURE FORM GAVE FALSE AND MISLEADING INFORMATION ABOUT THE COST OF FRONT END LOAD CHARGES IS PROTECTED; COMPLAINT THAT SUPERVISOR THE COMPLAINANT TO CONSULT WITH HIM BEFORE OFFERING NON-PROPRIETARY PRODUCT FOUND NOT TO BE PROTECTED

In Ryerson v. American Express Financial Services, Inc. , ARB No. 08-064, ALJ No. 2006-SOX-74 (ARB July 30, 2010), the Respondent did not challenge on appeal the ALJ's finding that the Complainant engaged in protected activity when he complained that a disclosure form that the Respondent's financial advisors were required to provide clients who invested in mutual funds gave a false and misleading impression that for certain investments, investing in "A" shares having initial front end load charges were less costly than investing in "B" shares having no front end load charges. In affirming the ALJ's finding, the ARB noted that the ALJ had found that the Respondent had revised the form in response to the Alien's concern, and that this action supported a finding that the Complainant had a reasonable belief that the form violated securities lawas dealing with fraud against shareholders.

The Complainant also alleged that that a complaint he made about his supervisor preventing him from recommending non-proprietary investment products to clients over the Respondent's proprietary products constituted SOX protected activity. The ARB agreed with the ALJ's finding that this complaint was not protected activity because the supervisor had only required that the Complainant consult with him prior to offering a non-proprietary product to a client � a policy which itself was not illegal.

Despite the finding of protected activity in regard to the disclosure form, the ARB affirmed the ALJ's finding that the Complainant failed to prove that his protected activity played any role in his subsequent termination.

The Respondent had not challenged the ALJ's finding that the Complainant was required to rewrite his previously approved financial plans because the protected activity and the ALJ's order to expunge the Complainant's personnel file and any record referencing the directive. Neither had the Respondent challenged the ALJ's order allowing the Complainant to submit an itemized application for litigation costs and expenses. Because these aspects of the ALJ's order were not challenged, the ARB affirmed them.

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Summary :

[STAA Digest XII]
APPLICATION OF RES JUDICATA AND COLLATERAL ESTOPPEL TO RULINGS OF DISTRICT COURT; SUPPLEMENTAL JURISDICTION OF DISTRICT COURT

In Abbs v. Con-Way Freight, Inc. , ARB No. 08-017, ALJ No. 2007-STA-37 (ARB July 27 , 2010), the Complainant filed an STAA whistleblower complaint with OSHA. He also filed a complaint in federal district court alleging several causes of action including breach of contract, age and employment discrimination under the ADEA and Title VII of the Civil Rights Act, and wrongful discharge under the FMCSIA and the STAA. The Respondent filed a motion for summary judgment in district court. In regard to the STAA complaint, the Respondent argued that a private cause of action was not permitted under the STAA and the claim was not properly before the court. The Complainant denied that he had brought an STAA claim before the court and maintained that his only STAA complaint was pending with OSHA. The district court granted summary judgment as to all counts, including the STAA complaint, on the theory that the STAA only protects employees who refuse to drive, and that the Complainant had not refused to drive. The court did not address the Respondent's argument that the STAA complaint was not before the court. The Sixth Circuit affirmed the district court's decision without addressing the STAA claim. OSHA dismissed the complaint on the ground that it had been adjudicated in court. The ALJ issued a recommended decision holding that the doctrines of collateral estoppel and res judicata barred the complaint from being relitigated. The ARB reversed and remanded.

The ARB held that res judicata did not bar the STAA complaint because the district court lacked jurisdiction to determine the STAA claim. The ALJ had made an alternative finding that the district court had supplemental jurisdiction under 28 USCA 1367(a). The ARB held that, by its terms, section 1367(a) excepts federal court supplemental jurisdiction where a federal statute provides otherwise, and that the STAA whistleblower provision accords exclusive jurisdiction to the Secretary of Labor, subject to review before federal circuit courts.

The ARB held that collateral estoppel did not bar the STAA complaint because the Complainant did not have a full and fair opportunity to litigate the issue of whether the Respondent's proffered reason for discharging him was the true reason or was a mere pretext for unlawful retaliation. The ALJ had found that the court's finding the Complainant had failed to demonstrate pretext under the ADEA raised the precise issue of pretext under the STAA, resulting in collateral estoppel. The ARB, however, found the ALJ failed to take into account that the pretext showings may not be the same. The ARB found that allegations of disparate treatment which were irrelevant under the ADEA might, if proven, serve as evidence of pretext under the STAA. Thus, the precise issues were not the same. The ARB also found that because of the manner in which dismissal was sought, it could not be said that the Complainant was afforded a full and fair opportunity to litigate the issue. The Respondent challenged the district court's jurisdiction, and the Complainant thus never had a reason to present evidence on pretext under the STAA. The ARB therefore remanded the case for further proceedings before the ALJ.

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Summary :

Petition for review withdrawn as moot after Wage and Hour Division's withdrawal of its Davis-Bacon General Wage Decision

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Summary :

[Nuclear & Environmental Digest XII D 5]
PROTECTED ACTIVITY; EMPLOYEE MAY BE PROTECTED UNDER THE ERA WHISTLEBLOWER PROVISION EVEN IF HIS DUTIES INCLUDE REPORTING SAFETY CONCERNS

In Vinnett v. Mitsubishi Power Systems , ARB No. 08-104, ALJ No. 2006-ERA-29 (ARB July 27, 2010), the Complainant was a Field Project Engineer for a company that inspects and performs periodic maintenance on turbines and generators in both nuclear and non-nuclear power plants. The Complainant alleged that he was retaliated against during outage work at a nuclear power plant for reporting technical errors, procedural deficiencies, and damage to a pressurized vessel. The ALJ granted summary decision in favor of the Respondent, finding as a matter of law that the Complainant's communications about safety were not protected because they were merely part of his job, rather than a report of safety-related violations for whistleblower purposes. The ARB rejected this finding:

The Board has never taken the position that an employee's job duties can remove him from the whistleblower protection provisions of the ERA. To the contrary, the Board has consistently found that employees who report safety concerns that they reasonably believe are violations of the ERA or AEA are engaging in protected activity, regardless of their job duties. The federal appellate courts have upheld the Board in these cases.

    Finally, there is nothing in the language of the ERA that carves out an exception limiting whistleblower protection based on an employee's job duties. To the contrary, the statute protects "any employee" who engages in protected activity. Congress passed the ERA in 1974 as part of its continuing effort to regulate the production, use, and control of nuclear energy. An employee protection provision was added in 1978 to protect employees who assist or participate in any proceeding to administer or enforce the requirements of the ERA or the Atomic Energy Act of 1954. Nuclear safety is encouraged by protecting workers from retaliation because they report safety concerns. "The whistleblower provision in the [ERA] is modeled on, and serves an identical purpose to, the provision in the Mine Health and Safety Act [sic]. They share a broad, remedial purpose of protecting workers from retaliation based on their concerns for safety and quality." As the court in Mackowiak observed, "The [Secretary's] ruling simply forbids discrimination based on competent and aggressive inspection work. In other words, contractors regulated by [the ERA] may not discharge quality control inspectors because they do their jobs too well." Congress amended the ERA in 1992 to expand its whistleblower protection to workers who report safety violations to their employers. Because the ALJ erroneously concluded that Vinnett had not engaged in protected activity because he was just doing his job, the ALJ committed reversible error.

USDOL/OALJ Reporter at 10-12 (footnotes omitted).

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Summary :

[STAA Digest X A 3]
STAA SETTLEMENT AGREEMENT MUST BE SUBMITTED AND REVIEWED

In Hamilton v. Tri-National, Inc. , ARB No. 10-100, ALJ Nos. 2009-STA-12 and 13 (ARB July 22, 2010), the parties submitted a joint stipulation of dismissal based on settlement the ALJ, who recommended dismissal of the complaint. On review, the ARB found that the ALJ had neither requested nor reviewed the settlement agreement. The ARB therefore ordered submission of the settlement agreement. Upon review the agreement, the ARB approved it.

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Summary :

The ARB affirmed the ALJ's finding that the Complainant failed to timely file his STAA and TSCA complaints and failed to demonstrate that equitable modification principles should apply.

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Summary :

Where DOL had not yet issued regulations for the whistleblower provision of the FRSA, the ALJ forwarded his Decision and Order to the ARB for possible review. The ARB issued a notice informing the parties that in order to obtain ARB review, a petition for review must be filed. Since neither party filed a petition, the ARB closed the case, noting that the ALJ's decision thus became the final decision of the Secretary.

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Summary :

Approval of settlement agreement

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Summary :

Where DOL had not yet issued regulations for the whistleblower provision of the NTSA, the ALJ forwarded his Decision and Order to the ARB for possible review. The ARB issued a notice informing the parties that in order to obtain ARB review, a petition for review must be filed. Since neither party filed a petition, the ARB closed the case, noting that the ALJ's decision thus became the final decision of the Secretary.

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