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June 2016
- Hopper v. Marten Transport, Ltd., ARB No. 16-043, ALJ No. 2014-STA-69 (ARB June 29, 2016)
Final Decision and Order Approving Settlement and Dismissing Complaint
Summary:[STAA Digest X A]
SETTLEMENT REACHED AFTER APPEAL TAKEN TO ARB; ARB DECLINES TO APPROVE TERM REQUESTING THAT ALJ’S DECISION BE VACATEDIn Hopper v. Marten Transport, Ltd., ARB No. 16-043, ALJ No. 2014-STA-69 (ARB June 29, 2016), shortly after the Respondent petitioned for ARB review of the ALJ’s Decision and Order concluding that the Respondent had violated the STAA’s employee protection provisions, the parties jointly moved for a remand to OALJ for mediation. The ARB granted the motion. Subsequently, the Respondent filed with the ARB an unopposed motion for approval of a settlement agreement. The ARB noted that one paragraph of the agreement requested that the ARB vacate the ALJ’s D. & O., but also provided that if the ARB refused to do so, it would not alter the parties’ obligations under the agreement. The ARB approved the settlement agreement, but declined to vacate the ALJ’s decision, writing: “It is not our practice to vacate underlying Administrative Law Judge decisions when considering whether to approve a settlement under the whistleblower acts, and we do not do so in this case.” Slip op. at 2 (footnote omitted).
- Rudolph v. National Railroad Passenger Corp. (Amtrak), ARB No. 14-080, ALJ No. 2009-FRS-15 (ARB June 28, 2016)
Order Awarding Attorney's Fees and Costs- PDF (slip opinion)
Summary:XXXX
- Beatty v. Inman Trucking Management, Inc., ARB Nos. 15-064, -067, ALJ Nos. 2008-STA-20, -21 (ARB June 27, 2016)
Final Decision and Order
Summary:XXXX
- Carter v. BNSF Railway Co., ARB Nos. 14-089, 15-016, -022, ALJ No. 2013-FRS-82 (ARB June 21, 2016)
Final Decision and Order
Summary:Decision affirming ALJ's decision finding that BNSF violated the FRSA and unlawfully discriminated against the Complainant.
- Sorenson v. Terracare Associates, LLC, ARB No. 16-005, ALJ No. 2015-STA-1 (ARB June 20, 2016)
Order Denying Motion for Reconsideration
Summary:The Complainant filed a motion for reconsideration of ARB's dismissal of appeal based on Complainant's failure to include a certificate of service on filings despite repeated warnings from the ARB that failure to do so would result in dismissal. The motion for reconsideration did not explain why he failed to file a certificate as ordered, and the ARB found that he had provided no grounds for reconsideration of the dismissal.
- Palmer v. Canadian National Railway, ARB No. 16-035, ALJ No. 2014-FRS-154 (ARB June 17, 2016)
Order Setting En Banc Review- PDF (slip opinion)
Summary:CONTRIBUTING FACTOR CAUSATION; ARB TO REVISIT QUESTION OF EVIDENTIARY LIMITATIONS PREVIOUSLY CONSIDERED UNDER THE NOW VACATED EN BANC DECISION IN POWERS AND THE EARLIER PANEL DECISION IN FORDHAM
In Palmer v. Canadian National Railway, ARB No. 16-035, ALJ No. 2014-FRS-154 (ARB June 17, 2016), the ARB provided notice that it will review this appeal en banc. The Board stated the following for briefing:
The parties are requested to file supplemental briefs that should address the questions set forth below that were previously considered before a panel of the Board in Fordham v. Fannie Mae, ARB No. 12-061, ALJ No. 2010-SOX-051 (ARB Oct. 9, 2014) and before the Board en banc in Powers v. Union Pacific Railroad, Co., ARB No. 13-034, ALJ No. 2010-FRS-030 (ARB Apr. 21, 2015, reissued with full dissent), which the Board vacated on May 23, 2016:
1) In deciding, after an evidentiary hearing, if a complainant has proven by a preponderance of the evidence that his protected activity was a “contributing factor” in the adverse action taken against him, is the Administrative Law Judge (ALJ) required to disregard the evidence, if any, the respondent offers to show that the protected activity did not contribute to the adverse action?
2) If the ALJ is not required to disregard all such evidence, are there any limitations on the types of evidence that the ALJ may consider?
Slip op. at 1-2.
- Space Exploration Technologies Corp., ARB No. 14-001 (ARB June 16, 2016)
Order Granting Motion to Remand and Dismissing the Appeal Without Prejudice
Summary:The Petitioner Space Exploration Technologies Corp. (SpaceX) had appealed from a final ruling of the Wage and Hour Division Administrator holding that "the Davis-Bacon Act applied to a License Agreement by and between SpaceX and the United States Air Force for the construction, establishment, and maintenance of a space launch complex for the support of private commercial and, possibly, federal government space launches." Slip op. at 1. The primary issue raised on appeal was whether the License Agreement constitutes a contract for the construction of a public work within the meaning of the Davis-Bacon Act and its implementing regulations. While the appeal was pending, "the United States Court of Appeals for the District of Columbia Circuit issued a decision addressing Davis-Bacon Act coverage in District of Columbia and CCDC Office, LLC v. Dep't of Labor, 819 F.3d 444 (D.C. Cir. 2016) (CityCenterDC) . The D.C. Circuit Court of Appeals affirmed a District Court decision, see District of Columbia v. U.S. Dep't of Labor, 34 F.Supp. 3d 172 (D.D.C. Mar. 31, 2014), in which the lower court reversed the ARB's decision finding DBA coverage in Application of the Davis-Bacon Act to Construction of the CityCenterDC Project in the District of Columbia, ARB Nos. 11-074, -078, -082 (ARB Apr. 30, 2013)." Id. The ARB asked for supplemental briefing in view of the CityCenterDC decision. In response, and the Administrator requested a remand for reexamintion of the matter in light of the DC Circuit court's decision. The ARB granted the motion to remand over the objection of SpaceX and intervenor parties. One member of the ARB would have denied the motion to remand (at least in part) given significant factual differences between the instant case and the CityCenterDC case, and the age of the appeal.
- Administrator, Wage and Hour Div., USDOL v. Coleman Construction Co., ARB No. 15-002, ALJ No. 2013-DBA-4 (ARB June 8, 2016)
Final Decision and Order
Summary:XXXX
- City of Ellsworth, Maine, Bayside Road Wastewater Treatment Facility, ARB No. 14-042 (ARB June 6, 2016)
Decision and Order of Remand
Summary:XXXX
- Administrator, Wage and Hour Div. v. Aleutian Capital Partners, LLC, ARB No. 14-082, ALJ No. 2014-LCA-5 (ARB June 1, 2016)
Final Decision and Order
Summary:XXXX
- Johnson v. BNSF Railway Co., ARB No. 14-083, ALJ No. 2013-FRS-59 (ARB June 1, 2016)
Final Decision and Order
Summary:XXXX