It has now been seven (7) weeks since Hilda Solis was confirmed as Secretary of Labor, and in those seven weeks, that Department's Administrative Review Board (ARB) continues to churn out decisions that run against the purpose of protected whistleblowers from retaliation.
The new Secretary of Labor can appoint a new set of ARB members at any time, but until she does, we will continue to suffer with decisions like these:
In Carter v. GDS Transport, Ltd., ARB No. 08-053, ALJ No. 2008-STA-9 (ARB Feb. 27, 2009), the ARB dismissed Marcolm Carter's case by holding that his complaint about a broken air conditioner on a shuttle bus was not protected. The ARB finds that air conditioning is not a safety or health issue, even for shuttle buses in El Paso, Texas. The ARB shows a remarkable lack of imagination. Have they never sensed how it feels to drive for hours in the heat? How about a CNN news poll: Are you a safer driver when the air conditioner works, or when it doesn't work? Moreover, the ARB is not moved by Carter's long record of complaining about issues such as brakes, tires and doors. Apparently, it is okay with this Board to fire truck driver whistleblowers as long as you wait for them to complain about a broken air conditioner.
In Johnson v. Econo Steel, LLC, ARB No. 07-111, ALJ No. 2007-STA-12 (ARB Feb. 23, 2009), the ARB held that Gary Johson is not protected when he asks to talk to the plant manager about an assignment to drive 860 miles after making local deliveries. The ARB wants truck drivers to specifically cite the Department of Transportation's hours of service rule to show that their concern for safety is one that is specifically required by law. It is no longer enough for a driver to just say, "I am concerned about how long this trip is," even when everyone in the industry knows about the hours of service rule. So, truck drivers should complete law school before getting behind the wheel.
In Farnham v. International Manufacturing Solutions, ARB No. 07-095, ALJ No. 2006-SOX-111 (ARB Feb. 6, 2009), the company sued the whistleblower for interference in its loans, slander and infliction of emotional distress. The ARB wrote that Keith Farnham, " has failed to establish how [the] filing [of the] civil suit against [him]... injured him in any way in relation to 'the terms and condition of his employment.'" All those bosses angry at their whistleblowers just need to learn not to fire them -- just sue them instead and you will be off the hook for retaliating. The ARB's decision does not even mention the U.S. Supreme Court decision of Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). There, the high court made clear that courts must accept retaliation cases for any materially adverse action. That is the only way to encourage employees to come forward with information in the public interest. That this ARB would seek to narrow the scope of actionable adverse actions shows a desire to do less work for whistleblowers. That desire is the opposite of the purpose of the DOL's whole whistleblower program.
In LeRoy v. Keystone Helicopter, Inc., ARB No. 07-056, ALJ Nos. 2006-AIR-3 and 24 (ARB Mar. 31, 2009), the ARB dismissed Danny LeRoy's AIR 21 case because he could not prove that the particular helicopter he was working on was used for passenger transportation. This decision overlooks how the company as a whole is covered by AIR 21 as a "contractor" to an air carrier. See 49 U.S.C. § 42121(a). Now, the ARB does not want to protect us from falling helicopters unless the whistleblower can prove not only that he or she is fired on account of raising a safety concern, but also that this particular safety concern was for a specific aircraft that the whistleblower can prove was used to carry passengers. This is not a requirement in the statute, but rather another effort by the ARB to limit the number cases for which it must award protection for whistleblowers.
In Collins v. Village of Lynchburg, Ohio, ARB No. 07-079, ALJ No. 2006-SDW-3 (ARB Mar. 30, 2009), the ARB wipes out the Department's ability to award exemplary damages against municipalities. To do this, the ARB misreads the Supreme Court's opinion in Newport v. Fact Concerts, Inc., 453 U.S. 247, 270-271 (1981) (holding that in action brought under 42 U.S.C.A. § 1983, municipalities are immune from punitive damages). The ARB didn't notice how 42 U.S.C.A. § 1983 fails to state explicitly that punitive damages can be awarded. The Supreme Court held that it would not imply such a remedy against government units. However, the Safe Drinking Water Act (SDWA) DOES explicitly provide for exemplary damages. As such, the logic of Newport has no application to SDWA claims. Also, did the ARB forget that practically all employers in SDWA cases would be municipalities? Who else runs public drinking water systems? Of course Congress knew that its provision of exemplary damages would apply to municipalities.
Together, these decisions show that we are burdened with an old ARB that is just not with the program of protecting whistleblowers and the public. It is time for a change.
Today was the first day on a new job for E. Cooper Brown as he begins his service as Vice-Chair of the Department of Labor's Administrative Review Board (ARB). Brown had served on the ARB in the 1990's, until the Bush Administration swept out the old Board members in 2001. I particularly appreciate his concurring opinion in Khandelwal v. Southern California Edison, ARB No. 98-159, ALJ Nos. 1997-ERA-6 (ARB Nov. 30, 2000). He made clear that the scope of discovery is broad -- something the ARB was reluctant to say thereafter. Brown previously served the District of Columbia as Chair of the Compensation Review Board (CRB), where his tenure was noted for more efficient administration and clearing a pre-existing backlog. This skills are well suited for today's ARB.
