USDOL/OALJ Reporter: ARB Decision Caselist - October 2011

SOVEREIGN IMMUNITY OF INDIAN TRIBE

COVERED EMPLOYER; INDIAN TRIBE

A sovereign Indian tribe is not an entity covered under SOX, 18 U.S.C.A. � 1514A, and moreover is immune from suit under that provision pursuant to sovereign immunity. Hylton v. The Seminole Tribe of Florida , ARB No. 10-078, ALJ No. 2010-SOX-14 (ARB Oct. 31, 2011)

The ALJ properly dismissed for lack of jurisdiction where the alleged adverse actions took place prior to the effective date of the 2007 FRSA amendments giving DOL jurisdiction over FRSA whistleblower complaints. The Complainant's contention that subsequent actions by the Respondent brought his claims within DOL's jurisdiction were unavailing as, even if they were considered, the FRSA complaint was not filed until after the 180 day limitations period had expired.

[STAA Digest II M]
REPETITIOUS FILINGS OF COMPLAINTS IN ATTEMPT TO RELITIGATE AN ISSUE MAY INVITE LEGAL SANCTIONS

In Bedwell v. Spirit Miller NE, LLC , ARB No. 10-024, ALJ No. 2009-STA-60 (ARB Oct. 27, 2011), the Complainant had twice previously filed STAA whistleblower complaints that had been found untimely by OSHA and the ALJ. In both instances, the ARB had affirmed the finding that the complaint was not timely filed, and in both instances the Complainant had not appealed to the federal courts. The Complainant filed a third complaint, and the ALJ found that issue preclusion barred this complaint. The ARB agreed and dismissed the complaint. The ARB observed in a footnote that the Complainant had filed two other complaints which had been dismissed as untimely by an ALJ. The ARB noted that "...Bedwell continues to relitigate an issue that was first decided in 2006. His repetitious filing of complaints borders on abuse of process and invites legal sanctions." USDOL/OALJ Reporter at 5, n.17 (citation omitted).

The ALJ granted summary decision in favor of the Respondent on the ground that the Complainant had failed to establish that the Respondent had taken adverse action against the Complainant. On appeal, the ARB found that there was a genuine dispute about the motivation and intent of both parties regarding the Complainant's employment and whether he had been terminated prior to the filing of the STAA whistleblower complaint. The ARB therefore found that summary decision was precluded and remanded for further proceedings before the ALJ.

PROTECTED ACTIVITY; SUBJECTIVE AND OBJECTIVE BELIEF; CHECKING OFF ON CREW MEMBER VERIFICATION LIST

In Blount v. Northwest Airlines, Inc. , ARB No. 09-120, ALJ No. 2007-AIR-9 (ARB Oct. 24, 2011), the Complainant was a part-time probationary customer service agent. His mentor, who was trying to provide the Complainant with the experience of being a lead gate agent, asked him to sign off on a crew verification list after she and another agent had checked in the crew members. The Complainant refused because he had not seen any of the crew and had not verified their identities personally. The Complainant continued to refuse even after a supervisor informed him that signing off on the paperwork did not indicate that the he had checked each crew member personally, but only that other agents had done so as evidenced by their initials next to each crew member's name. Later, supervisors and a safety director met with the Complainant to try to get him to understand the procedure, but after the Complainant insisted that it would be fraudulent for him to check off the paperwork without personally checking the crew's identification, the Complainant was discharged for insubordination. The Complainant then filed an AIR21 whistleblower complaint.

On appeal, the ARB found that verification of crew members' identities is on its face an air safety concern, but that protected activity under AIR 21 has two elements: (1) the information the complainant provides must involve a purported violation of a regulation, order, or standard relating to air carrier safety, though the complainant need not prove an actual violation; and (2) the complainant's subjective belief that a violation occurred must be objectively reasonable. The ARB found that substantial evidence supported the ALJ's finding that while the Complainant firmly believed that signing the crew list without verifying crew members' identities personally would violate an FAA regulation, his belief was not objectively reasonable in light of the testimony of his mentor, the person who had drafted the Respondent's policy on crew verification; the Complainant's classroom trainer, and the customer service manager who fired the Complainant. Consequently, the Complainant had not engaged in protected activity.

One member of the Board concurred with the result, but found that the problem was not that the Complainant's actions were not objectively reasonable - the member finding that the Complainant had an objectively rational basis for his confusion as a new trainee. The member stated that "I believe it is a dangerous precedent to say that an initially objective reason for an airport security concern loses its protected activity status because a team of veteran employees insists that a policy does not say what it appears to say." USDOL/OALJ Reporter at 12 (footnote omitted). Rather, the concurring member found that the Complainant did not have a subjectively reasonable belief that a violation had occurred, having been more worried about personal liability than raising of a safety concern.

VOLUNTARY DISMISSAL TO PURSUE UNION GRIEVANCE; MATTER NOT REOPENED WHERE THERE WAS A FAILURE TO PRESENT EVIDENCE OF COERCION OR DURESS

In Bailey v. Greater Cleveland Regional Transit Authority , ARB No. 09-078, ALJ No. 2009-NTS-1 (ARB Oct. 12, 2011), the Complainant moved before the ALJ to withdraw his NTSSA complaint because under the terms of the settlement of his union grievance, he was awarded the remedies he had requested in his complaint. The ALJ granted the motion, noting that the Complainant was represented by counsel. The Complainant appealed to the ARB, requesting that it reverse the ALJ's ruling on the ground that the Respondent engaged in "misleading and untruthful" behavior both during and following the grievance process. The ARB, however, noted that the Complainant had not described any behavior that coerced him into withdrawing his NTSSA claim, and agreed with the ALJ's finding that the Complainant's "alleged financial and medical needs do not render his request involuntary or made under coercion or duress." The ARB found that based on the record before it, the Complainant freely decided to request withdrawal of his NTSSA claim following settlement of his union grievance, and affirmed the ALJ's dismissal.