The following case summaries were created by the Administrative Review Board staff.
Shah v. Albert Fried & Co., ARB No. 2020-0063, ALJ No. 2019-SOX-00015 (ARB Nov. 4, 2022) (Order Denying Motion for Reconsideration Without Prejudice and With Leave to Refile)
Order Denying Motion for Reconsideration Without Prejudice and With Leave to Refile
In Shah v. Albert Fried & Co., ARB No. 2020-0063, ALJ No. 2019-SOX-00015 (ARB Nov. 4, 2022), the ARB denied Complainant's Motion for Reconsideration because it exceeded the length limitations outlined in the Board's Briefing Schedule. However, the Board denied Complainant's Motion for Reconsideration without prejudice and with leave to refile in compliance with the Briefing Schedule's length limitations.
Furlong-Newberry v. Exotic Metals Forming Co., LCC, ARB No. 2022-0017, ALJ No. 2019-TSC-00001 (ARB Nov. 9, 2022) (Decision and Order Affirming in Part and Vacating and Remanding in Part)
CAUSATION; ALJ APPLIED CORRECT MOTIVATING FACTOR STANDARD; COMPLAINANT'S TSCA-PROTECTED ACTIVITY DID NOT MOTIVATE THE TERMINATION OF HER EMPLOYMENT
In Furlong-Newberry v. Exotic Metals Forming Co., LCC, ARB No. 2022-0017, ALJ No. 2019-TSC-00001 (ARB Nov. 9, 2022), the ARB affirmed the ALJ's determination that Complainant's TSCA-protected activity did not motivate the termination of her employment. In September of 2018, Complainant engaged in protected activity and reported risks associated with a pending project transfer, including a need to identify a new source for paint because the Respondent's paint supplier had estimated the supply of paint required for the project was going to be unavailable through October of 2018. Prior to Complainant's report, however, Complainant breached confidentiality by telling a co-worker of the project transfer before he was supposed to learn of it pursuant to Respondent's Communication Plan, which outlined when certain employees would learn of the transfer. The co-worker told his supervisor that he learned of the project transfer from Complainant. Afterwards, Complainant's direct supervisor questioned Complainant twice and she denied breaching confidentiality both times. Respondent then terminated Complainant's employment.
On appeal, the ARB affirmed the ALJ's D. & O. on the merits. The ARB found the ALJ applied the correct theory of contribution in environmental whistleblower cases: whether the protected activity was a motivating factor in the adverse action. The ARB also found that substantial evidence in the record supported the ALJ's findings that Complainant failed to establish that her protected activity was a motivating factor in Respondent's decision to terminate her employment. The ARB relied on the ALJ's credibility findings—specifically, Respondent's witnesses' testimony that the paint availability issue was not considered during the decision-making leading to the termination of Complainant's employment. The ARB noted that the credibility decisions were consistent with the objective facts also found by the ALJ, including the fact that Respondent's employees already knew of the paint availability issue, that Respondent already identified the issue to its contract partner, and the fact the paint was not in fact unavailable and caused no problems for Respondent.
EVIDENTIARY RULINGS; ALJ DID NOT ABUSE HIS DISCRETION IN DENYING COMPLAINANT'S LATE REQUEST FOR PRODUCTION OF ADDITIONAL DOCUMENTS
In Furlong-Newberry v. Exotic Metals Forming Co., LCC, ARB No. 2022-0017, ALJ No. 2019-TSC-00001 (ARB Nov. 9, 2022), Complainant argued that the ALJ abused his discretion in his evidentiary rulings. Specifically, Complainant challenged the ALJ's decision during the hearing to deny Complainant's request for production of additional documents. Complainant argued that the ALJ's decision denied her due process because she was prevented from having access to certain materials until a week before the hearing, and that this prevented her from investigating, organizing, and requesting more documents from Respondent relating to the belated production.
The ARB found that the ALJ did not abuse his discretion. The ARB found that Complainant's argument was unpersuasive because Complainant did not address why she failed to bring a motion to compel production during the discovery period. Although the parties had been negotiating terms of a protective order at length after the close of the discovery period, thereby delaying the production of certain documents, the ARB determined this was not a sufficient reason to find error in the ALJ's evidentiary rulings. The ARB noted Complainant had an obligation to diligently seek the discovery she needed, and her failure to compel production earlier rebounded to her peril. Additionally, the ARB determined that the only specific information Complainant identified as unprovided and necessary to her case would not have impacted the case's result. The ARB regarded Complainant's insistence to the contrary as "mere speculation" which was insufficient to establish an abuse of discretion.
SEALING RECORD AND PROTECTIVE ORDER; ALJ ABUSED DISCRETION IN SEALING ENTIRE D. & O. AND ISSUING A PROTECTIVE ORDER UNDER INTERNATIONAL TRAFFIC IN ARMS REGULATIONS WITHOUT SUFFICIENT FACTUAL RECORD
In Furlong-Newberry v. Exotic Metals Forming Co., LCC, ARB No. 2022-0017, ALJ No. 2019-TSC-00001 (ARB Nov. 9, 2022), during discovery, Respondent withheld materials, alleging they were protected by the International Traffic in Arms Regulations (ITAR), 22 C.F.R. §§ 120-30, issued under the Arms Export Control Act, 22 U.S.C. § 2278. Without viewing or examining any specific information for which ITAR protections were claimed, the ALJ issued an Order Granting in Part and Denying in Part Motion for Protective Order, allowing the parties to designate as "Confidential Material" any newly produced unclassified materials and "technical data" within the meaning of ITAR. With the Protective Order in place, Respondent produced to Complainant 56 new pages of unredacted documents marked as Confidential Material. At the ensuing hearing, the ALJ admitted seven exhibits designated as confidential and sealed under the Protective Order pursuant to ITAR.
On December 6, 2021, the ALJ issued two orders: (1) a Decision and Order (D. & O.) Denying Complaint, finding the Complainant failed to establish that her protected activity was a motivating factor in her termination; and (2) Order Closing Case and Sealing Decision and Order (Order Sealing D. & O.). In the Order Sealing D. & O., the ALJ sealed the D. & O. form public access, noting that the D. & O. relied on and contained "technical data" within the meaning of the ITAR and that attempting to redact the full D. & O. would run an unacceptable risk of an unauthorized disclosure.
The ARB found that the ALJ abused his discretion in issuing the protective order and sealing the D. & O. The ARB found that the ALJ issued the Order Sealing D. &. O. without identifying or applying the compelling reasons standard. The ARB emphasized that ITAR requires the consideration of the components of the statute in light of the specific information at issue in order to determine whether and where the bar to public transparency should be set, citing West v. Bell Helicopter Textron, Inc., 2014 WL 12908077 (D.N.H. Sept. 30, 2014). The ARB found that nothing in the record established that the ALJ applied the correct legal standard for sealing the entire D. & O. and that it was apparent that many facts set forth in the D. & O. were not technical data and/or were already in the public domain. As to the protective order, the ARB also found that the ALJ abused his discretion in failing to make an adequate record to support the conclusion that good cause existed to protect the information from disclosure. The ARB remanded the case back to the ALJ to reexamine and reissue the protective order and the D. & O., if necessary, with redactions or other anonymizing edits as necessary to ensure compliance with ITAR and the applicable law.
Shanker, Chief, Div. of Enforcement, OLMS, USDOL v. Patent Office Professional Association, ARB No. 2023-0001, ALJ No. 2021-SOC-00002 (ARB Nov. 16, 2022) (Decision and Order Affirming Recommended Decision and Order and Ordering New Election)
REASONABLE REQUEST TO DISTRIBUTE CAMPAIGN LITERATURE; COMPLAINANT MADE REASONABLE REQUEST TO DISTRIBUTE CAMPAIGN LITERATURE WHEN HE CONTACTED DESIGNATED PRINTER
In Shanker, Chief, Div. of Enforcement, OLMS, USDOL v. Patent Office Professional Association, ARB No. 2023-0001, ALJ No. 2021-SOC-00002 (ARB Nov. 16, 2022), Complainant, a candidate for union president, contacted the respondent-union's designated third-party printer regarding printing and distributing campaign materials to the union's members before the election. The printer never responded to Complainant and never distributed his campaign materials.
Although the union attempted to classify Complainant's communication with the printer as a mere request for a price quote, the ARB agreed with the ALJ that Complainant's communication constituted a "reasonable request" to distribute campaign literature under the LMRDA. The content and context of Complainant's communication, in which he indicated his desire to distribute postcards to the entire union membership in connection with the election and requested information concerning pricing and timing, made clear that he was attempting to effectuate a mailing in accordance with the union's instructions and preparatory arrangements with the printer. The ARB concluded that "to allow a union to stymie or stonewall a challenger candidate's campaign by ignoring his legitimate efforts to effectuate the distribution of his campaign literature in accordance with the process offered by, and through the channels allegedly arranged for by, the union, as happened in this case, would undermine the clear statutory purposes of the LMRDA to ensure fair and democratic elections and to remedy the abuse of power within labor organizations."
FAILURE TO COMPLY WITH REASONABLE REQUEST TO DISTRIBUTE CAMPAIGN LITERATURE; UNION RESPONSIBLE FOR PRINTER'S FAILURE TO RESPOND TO REQUEST
In Shanker, Chief, Div. of Enforcement, OLMS, USDOL v. Patent Office Professional Association, ARB No. 2023-0001, ALJ No. 2021-SOC-00002 (ARB Nov. 16, 2022), the respondent-union clearly and unequivocally represented to members that a specific third-party printer could receive and fulfill printing and distribution requests for the upcoming union election. The ARB determined that when the printer subsequently failed to comply with Complainant's reasonable request to distribute campaign literature, the union was ultimately responsible for the violation of the LMRDA. The ARB rejected the union's attempts to shift blame and responsibility to the printer. The ARB stated that the union "has no statutory obligation to retain an independent entity to conduct an election, or parts thereof like printings and mailings. However, if, as here, a union chooses to do so, it remains the union's statutory duty to comply with section 401 [of the LMRDA]. That duty, and responsibility for violations thereof, cannot be passed to the union's designee."
The ARB also rejected the union's arguments that its alleged subsequent good faith efforts to assist Complainant after the printer failed to distribute his campaign literature cured any violation. The union's subsequent efforts did not undo the fact that a violation had already occurred. Additionally, election ballots had already been mailed to the union's members by the time the union endeavored to help Complainant, which eviscerated any remedial or curative effect the union's efforts might otherwise have had.
AFFECT ON OUTCOME OF ELECTION; FAILURE TO DISTRIBUTE CAMPAIGN LITERATURE BEFORE BALLOTS WERE MAILED MAY HAVE AFFECTED OUTCOME OF ELECTION
In Shanker, Chief, Div. of Enforcement, OLMS, USDOL v. Patent Office Professional Association, ARB No. 2023-0001, ALJ No. 2021-SOC-00002 (ARB Nov. 16, 2022), the ARB determined that the respondent-union's failure to comply with Complainant's reasonable request to distribute campaign literature to the entire union membership may have affected the outcome of the union election. Applying the maximum theoretical possibility standard, under which it is assumed that all those impacted by the violation who could have voted would have voted unanimously for the disadvantaged candidate, the ARB assumed that each one of the union's members would have voted for Complainant had his campaign literature been distributed as requested. The ARB determined that the respondent-union's arguments to the contrary—including that Complainant never would have sent campaign literature to the entire union membership because of his limited budget and that the literature would not have convinced enough members to vote for him to change the election's results—were too speculative to satisfy the union's substantial burden of proving that its violation did not affect the election's outcome.
Berberich v. Kansas City Southern Ry. Co., ARB No. 2022-0064, ALJ No. 2020-FRS-00083 (ARB Nov. 29, 2022) (Order of Dismissal)
ORDER OF DISMISSAL; APPEAL DISMISSED WHERE COMPLAINANT FILED ORIGINAL ACTION IN DISTRICT COURT
In Berberich v. Kansas City Southern Ry. Co., ARB No. 2022-0064, ALJ No. 2020-FRS-00083 (ARB Nov. 29, 2022), the ARB dismissed Complainant's administrative complaint because he filed an original de novo complaint the United States District Court for the District of Kansas.