Whistleblower Protection Blog : Whistleblower Lawyer & Attorney : National Whistleblower Legal Defense and Education Fund : Whistleblower Protection, Fraud Claims : Washington DC

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.

On January 11, 2005, Timothy Elbert told his bosses at True Value that the brakes on a trailer were broken and he would not drive it.  Two days later, they fired him. Elbert had worked for the company for 16 years.

Since 1983, the Surface Transportation Assistance Act (STAA), 49 U.S.C. § 31105, has protected the employees of motor carriers from retaliation for refusing to drive unsafe equipment, refusing to violate the hours of service rule or other safety laws, or for raising safety concerns. Under STAA, truck drivers have 180 days to file a written complaint with OSHA to seek relief for retaliation. Unfortunately, OSHA's record on ruling for truck drivers has been slow and disappointing.  When truck drivers appeal to the Office of Administrative Law Judges (ALJs), it can take months or longer to get a hearing, and then again to get a decision, and the decisions can still be disappointing.  The required review by the Administrative Review Board (ARB) can take years.  

As part of the Implementing Recommendations of the 9/11 Commission Act in 2007, Congress updated the STAA whistleblower protection (and created new protections for public transportation and railway workers). The updates include a right to file a civil action in federal district court if the Department of Labor (DOL) takes more than 210 days to issue a final order, and a right seek punitive damages up to $250,000. 

When Elbert filed his complaint with OSHA, True Value claimed that it fired him for becoming argumentative with a dispatcher about signing a new policy on tracking fuel and miles, and also for making up the claim that the brakes were bad.  OSHA accepted this claim and determined that Elbert's complaint had no merit.  Elbert appealed to an ALJ who also accepted the managers' claim that they fired Elbert for his abrasiveness, and not because of his protected activity.  The ALJ even held that it was okay to fire Elbert for believing that Elbert made up the brake problem as the managers did not learn about Elbert's corroboration for the problem until after they decided to fire him.

Elbert's case was pending at the ARB when the 2007 STAA amendments passed.  Elbert's attorney, Paul Taylor of the Truckers Justice Center, promptly filed a new civil action in U.S. District Court.  That court dismissed the case saying that the new procedure would apply only to violations that happened after the amendments became effective.  On appeal, Taylor argued that as the amendments are procedure and not substantive (except for the new provision for punitive damages), they should apply to cases that were pending at the time they were enacted.  Taylor noted that the district court action did not seek punitive damages, so that provision should not affect this case.  The Eighth Circuit disagreed.  The court was concerned about the "additional costs to True Value" from relitigating Elbert's claims. Even though Elbert was not seeking punitive damages, the court said that applying the law retroactively deprived True Value of how the new remedy could impact employee relations. The court did not address how punitive damages are meant to deter others from the unlawful conduct, and this purpose is served by applying such damages now for conduct that was already unlawful before the remedy was enacted. The court affirmed the lower court's dismissal.

Elbert's case still awaits a final decision from the ARB.  Meanwhile, this case shows the practical benefits that can flow from careful drafting of new legislation.  If Congress had just said that it wanted the amendments to apply to pending cases, then Elbert would have his day before a jury.  Perhaps Congress will be so attentive when it considers new whistleblower protection bills next year. Perhaps the next administration will manage whistleblower cases more promptly, and with a spirit that gives life to the protection Congress originally intended. See the National Whistleblowers Center (NWC) Roadmap for Change. We can continue to hope.