Mawhinney v. Transport Workers Union, Local 591 (agency decision, December 9, 2020)

Plain-English summary

Robert Steven Mawhinney alleged that Transport Workers Union Local 591 colluded with American Airlines and others to discharge him in violation of AIR21's aviation whistleblower protections. The union sought dismissal through motions for summary decision and dispositive action. The Board reviewed both dismissal standards without deferring to the ALJ, accepting Mawhinney's factual allegations for the failure-to-state-a-claim issue and viewing the summary-decision evidence in his favor. It found the ALJ's ruling lawful and well-reasoned, adopted the order, and dismissed the case against the union.

Decision snapshot

• Cited authorities: 49 U.S.C. § 42121; 29 C.F.R. §§ 18.70, 18.72, and 1979.110(a)
• Outcome: ALJ order adopted and case against Transport Workers Union Local 591 dismissed.
• Key point: The Board found dismissal proper under the governing dispositive-action and summary-decision standards.

Full text (DOL official public release)

U.S. Department of Labor Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001

 In the Matter of:

 ROBERT STEVEN MAWHINNEY,                         ARB CASE NO. 2019-0018

              COMPLAINANT,                        ALJ CASE NO. 2012-AIR-00014

       v.                                         DATE: December 9, 2020

 TRANSPORT WORKERS UNION,
 LOCAL 591

              RESPONDENT.


 Appearances:

 For the Complainant:
       Robert Steven Mawhinney, pro se, LaJolla, California

 For the Respondent:
       Nicholas Granath, Esq.; Seham, Seham, Meltz & Petersen, LLP; White
       Plains, New York

 BEFORE: James D. McGinley, Chief Administrative Appeals Judge;
 Thomas H. Burrell and Randel K. Johnson, Administrative Appeals Judges


                               DECISION AND ORDER

       This case arises under the employee protection provisions of the Wendell H.
 Ford Aviation Investment and Reform Act for the 21st Century (AIR 21).1
 Complainant Robert Steven Mawhinney filed a complaint alleging that Respondent


       1       49 U.S.C. § 42121 (2000). AIR 21’s implementing regulations are found at 29
 C.F.R. Part 1979 (2018).
                                        2

Transport Workers Union Local 591 (TWU) violated AIR 21 by colluding with American Airlines and several individuals to discharge him from employment.2

   TWU seeks dismissal as a party pursuant to two motions. On September 30,

2016, it filed a “Motion for Summary Decision on All Claims Against Transport Workers Union, Local 591 & Memorandum of Law in Support of It Motion, Pursuant to Rule §18.72.” On November 16, 2018, TWU filed a “Motion for Dispositive Action & Memorandum of Law in Support of Its Motion, On All Claims Against Transport Workers Union, Local 591, Pursuant to Rule §18.70(c).” On December 27, 2018, an Administrative Law Judge (ALJ) issued an “Order Granting Respondent’s Motion for Dispositive Action and Order Granting Respondent’s Motion for Summary Decision” (Order), dismissing TWU.

    The Administrative Review Board has jurisdiction to review the Order.3 The

Board reviews an ALJ’s grant of a motion for dispositive action de novo. The regulation governing such motions states that “[a] party may move to dismiss part or all of the matter for reasons recognized under controlling law, such as lack of subject matter jurisdiction, failure to state a claim upon which relief can be granted, or untimeliness.”4 In considering a motion to dismiss for failure to state a claim, we accept the non-movant’s factual allegations as true and draw all reasonable inferences in his favor.5

    The Board also reviews an ALJ’s grant of summary decision de novo.6 Under

the regulation governing the entry of summary decision, judgment must be entered if the pleadings, affidavits, material obtained in discovery, or matters officially noticed show that there is no genuine issue as to any material fact and that a party

  2      Mawhinney’s retaliation claim proceeded as two consolidated cases before the

Office of Administrative Law Judges. The ALJ severed the cases and considered TWU’s motions as ALJ Case No. 2012-AIR-00014.
3 Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of
Responsibility to the Administrative Review Board (Secretary’s discretionary review of ARB decisions)), 85 Fed. Reg. 13186 (Mar. 6, 2020); 29 C.F.R. § 1979.110(a).
4 29 C.F.R. § 18.70.
5 Tyndall v. U.S. EPA, ARB No. 1996-0195, ALJ Nos. 1993-CAA-00006, 1995-CAA- 00005, slip op. at 2 (ARB June 14, 1996).
6 Vinayagam v. Cronous Sols., Inc., ARB No. 2015-0045, ALJ No. 2013-LCA-
00029, slip op. at 2 (ARB Feb. 14, 2017).
3

is entitled to summary decision.7 In reviewing such a motion, the evidence before the ALJ is viewed in the light most favorable to the non-moving party, and the ALJ may not weigh the evidence or determine the truth of the matter.8

  Upon review of the Order and the parties’ arguments, we conclude that the

ALJ’s decision is in accordance with the law and is well-reasoned. As a result, we ADOPT and ATTACH the Order and, accordingly, we DISMISS Mawhinney’s case against TWU.

  SO ORDERED.




  7      29 C.F.R. § 18.72.
  8      See, e.g., Vudhamari v. Advent Glob. Sols., ARB No. 2019-0061, ALJ No. 2018-

LCA-00022, slip op. at 3 (ARB July 30, 2020).