Federal Agency Decisions

Federal workers' compensation appeals from the Department of Labor's Employees' Compensation Appeals Board (ECAB), federal-sector labor-relations cases from the Federal Labor Relations Authority (FLRA), mine-safety cases from the Federal Mine Safety and Health Review Commission (FMSHRC), workplace-safety cases from the Occupational Safety and Health Review Commission (OSHRC), Longshore Act and Black Lung Benefits Act appeals from the Department of Labor's Benefits Review Board (BRB), precedent decisions of the Board of Immigration Appeals (BIA), environmental permit and penalty appeals from the EPA's Environmental Appeals Board (EAB), and whistleblower and other labor appeals from the Department of Labor's Administrative Review Board (ARB), each with a plain-English summary, the law it cites, and whether it counts as precedent. More agencies are coming.

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COMM

Bobbie G. Gillus v. Newport News Shipbuilding and Dry Dock Company

Gillus v. Newport News Shipbuilding (BRB 02-0637): nominal award for a worsening knee condition

Bobbie Gillus injured her knee while working for Newport News Shipbuilding and later requested a nominal disability award because her condition was worsening. The employer argued that her request came too early and that a leg injury could not support this kind of award. The Board held that the…

June 12, 2003 ·BRB
Affirmed
ALJ

Brian Hanley Logging

Yarder guyline hazard affirmed as repeat

Brian Hanley Logging anchored three guylines from a skyline logging yarder to standing trees. The judge found that the trees could fall toward employees when stressed by the yarding operation, that both the logging industry and the employer recognized the hazard, and that using notched stumps or…

June 12, 2003 ·Ken S. Welsch ·OSHRC
Citations affirmed
COMM

Social Security Administration and American Federation of Government Employees, Local 1923

Social Security priority consideration (FLRA 0-AR-3401): Contract remedy upheld after remand

After an earlier FLRA remand, an arbitrator clarified why a Social Security job applicant deserved priority consideration for a building management position. He found no discrimination, but concluded that the agency violated its labor agreement by taking no action to address known…

June 12, 2003 ·FLRA
Upheld
COMM

In re Christopher PICKERING, Respondent

Rehabilitative vacatur did not erase conviction

The Board reviewed whether a Canadian court's order quashing the respondent's controlled-substance conviction removed that conviction for immigration purposes. The respondent had been convicted of possessing LSD and later obtained the Canadian order after learning that the conviction could prevent…

June 11, 2003 ·BIA
Affirmed
COMM

National Association of Government Employees, Local R5-188 and United States Department of the Air Force, Seymour Johnson Air Force Base

Seymour Johnson appraisal factors (FLRA 0-AR-3602): Evaluation standards upheld

A union challenged the appraisal factors used in a second evaluation of an employee at Seymour Johnson Air Force Base. The factors measured work behaviors used for competitive placement, and an arbitrator found them sufficiently clear and objective. The Authority rejected the union's claim that the…

June 11, 2003 ·FLRA
Upheld
COMM

General Services Administration, Region 2 and American Federation of Government Employees, Council 236

GSA probationary separation (FLRA 0-AR-3649): Arbitrability award set aside

A GSA probationary employee resigned after being offered the choice of resignation or termination for unsatisfactory performance. The union grieved her separation, alleging that the agency had not followed contract requirements for probationary employees. An arbitrator found the grievance…

June 10, 2003 ·FLRA
Set aside
COMM

American Federation of Government Employees, Local 1592 and United States Department of the Air Force, Ogden Air Logistics Center

Hill Air Force Base medical disclosure (FLRA 0-AR-3560): Privacy Act exception denied

After conflicting fitness assessments, an Air Force physician wrote to an employee's personal physician about the employee's medical condition. The union claimed the disclosure violated the Privacy Act because the employee had not given prior written consent. An arbitrator rejected the grievance…

June 9, 2003 ·FLRA
Upheld
COMM

United States Department of Justice, Federal Bureau of Prisons, United States Penitentiary, Terre Haute and American Federation of Government Employees, Local 720

Terre Haute prison arbitration (FLRA 0-AR-3487): Reconsideration denied

The union sought reconsideration of an earlier Authority decision involving an arbitration at the Terre Haute federal prison. It argued that the Authority had made legal and remedial errors. The Authority found no extraordinary circumstances: the union cited no law requiring a merits ruling on…

June 9, 2003 ·FLRA
Procedural
COMM

Michigan CAFO General Permit

In re Michigan CAFO General Permit (EAB NPDES Appeal No. 02-11): reconsideration denied

Sandra K. Yerman challenged Michigan's NPDES general permit for concentrated animal feeding operations. The EAB had dismissed the original petition because the permit was state-issued and the Board also lacked jurisdiction over EPA-issued NPDES general permits. The Board waived the reconsideration…

June 8, 2003 ·EPA EAB
Procedural
COMM

American Federation of Government Employees, Council 236 and United States General Services Administration

GSA property division bargaining (FLRA 0-AR-3617): Good-faith finding upheld

GSA reorganized part of its property management program to reduce costs. The union grieved, arguing that GSA's bargaining team lacked authority and that the agency used an adversarial approach during talks over the change. An arbitrator found that GSA had negotiated in good faith and denied the…

June 6, 2003 ·FLRA
Upheld
COMM

American Federation of Government Employees, Local 507 and United States Department of Veterans Affairs Medical Center, West Palm Beach

West Palm Beach VA weekend schedules (FLRA 0-AR-3646): Schedule-change award upheld

After no electrical department employees volunteered for weekend work at the West Palm Beach VA Medical Center, a supervisor temporarily changed three schedules to include weekend hours within a forty-hour week. An arbitrator found no violation of the labor agreement, law, or regulations. The…

June 6, 2003 ·FLRA
Upheld
COMM

U.S. Army, Fort Wainwright Central Heating and Power Plant

In re U.S. Army, Fort Wainwright Central Heating and Power Plant (EAB CAA Appeal No. 02-04): federal penalty factors upheld, penalty issues remanded

The U.S. Army's Fort Wainwright central heating and power plant in Alaska was already found liable for Clean Air Act violations. In this interlocutory appeal, the Army argued that EPA could not consider the facility's size or any economic benefit from delayed compliance when setting a civil penalty…

June 5, 2003 ·EPA EAB
Mixed result
COMM

CDT Landfill Corporation

In re CDT Landfill Corporation (EAB CAA Appeal No. 02-02): performance-test liability restored, no penalty assessed

CDT Landfill Corporation operated a municipal solid waste landfill in Joliet, Illinois. EPA alleged that CDT failed to submit required landfill reports and design documents, obtain a CAA permit, and timely test its gas collection and emission control system. The Environmental Appeals Board reversed…

June 5, 2003 ·EPA EAB
Mixed result
COMM

Tidewater Virginia Federal Employees Metal Trades Council, International Brotherhood of Electrical Workers, Local 734 and United States Department of the Navy, Navy Public Works Center, Norfolk

Norfolk Navy military leave (FLRA 0-AR-3637): Weekend overtime claim denied

A Navy public works employee sought military leave pay for voluntary weekend overtime he missed while attending reserve training. An arbitrator found the overtime shifts were outside his regularly scheduled Monday through Friday workweek and denied the grievance. The Authority explained that…

June 5, 2003 ·FLRA
Upheld
COMM

American Federation of Government Employees, Local 1757 and United States Department of the Air Force, 311th Human Systems Wing, Brooks Air Force Base

Brooks Air Force Base temporary promotion (FLRA 0-AR-3579): Grievance remanded

A GS-6 employee at Brooks Air Force Base claimed she had temporarily performed duties of an established GS-9 position and sought a temporary promotion under the labor agreement. An arbitrator treated the claim as a position classification dispute and found it excluded from grievance arbitration…

June 5, 2003 ·FLRA
Remanded
COMM

South Shore Power, L.L.C.

In re South Shore Power, L.L.C. (EAB PSD Appeal No. 03-02): review denied for proposed power facility permit

South Shore Power, L.L.C. received a federal prevention of significant deterioration permit to build an electric generating facility in Bridgman, Michigan. Four nearby residents challenged the permit on several grounds, including air-dispersion modeling, multiple-source pollution, humidity, ammonia…

June 4, 2003 ·EPA EAB
Affirmed
ALJ

Rawson Contractors, Inc.

Undermined-pavement violation affirmed

Rawson Contractors allowed employees to work on and below pavement that had been undermined by a sewer excavation, with part of an excavator resting near the unsupported area. The judge held that the cited standard presumes a hazard when pavement is undermined without support or other protection…

June 4, 2003 ·James H. Barkley ·OSHRC
Mixed result
COMM

United States Department of the Navy, Naval Computer and Telecommunications Area Master Station Atlantic Detachment Cutler and American Federation of Government Employees, Local 2635

Cutler Navy guard overtime (FLRA 0-AR-3603): Overtime award set aside

At the Navy's Cutler station, a military guard already on duty covered two vacant guard shifts. An arbitrator found that an oral labor agreement required the Navy to give half of each shift to civilian guards on overtime and awarded two guards four hours of pay each. The Authority held that the…

June 4, 2003 ·FLRA
Set aside
ALJ

Lacerte Builders, Inc.

Controlling employer liable for subcontractor fall hazards

An OSHA compliance officer observed subcontractor employees using elevated aerial lifts and working on open third-floor balconies without proper fall protection. The judge found that Lacerte controlled the exterior work, supervised the subcontractors, could correct hazards, and had actual knowledge…

June 2, 2003 ·Stephen J. Simko, Jr. ·OSHRC
Mixed result
ALJ

CDK Contracting Company

Motion to compel granted in part

CDK Contracting contested citations and orders issued at its Portland Plant and Quarry, along with related civil penalty proceedings. It sought Special Assessment Review Forms and a Special Investigation file. Judge Richard W. Manning held that MSHA's special assessment process was irrelevant to…

May 30, 2003 ·Richard W. Manning ·FMSHRC
Procedural
ALJ

Secretary of Labor on behalf of John G. Muehlenbeck v. Concrete Aggregates, LLC

Discrimination complaint dismissed after termination for walk-off

John G. Muehlenbeck was superintendent at Concrete Aggregates' small sand and gravel quarry. He objected to an employee acknowledgment form containing a broad arbitration clause because he reasonably believed signing it could waive protections under the Mine Act, and the judge found that objection…

May 30, 2003 ·Richard W. Manning ·FMSHRC
Other
ALJ

Secretary of Labor v. Big Buck Asphalt

Settlement approved with reduced penalty

MSHA sought civil penalties against Big Buck Asphalt in six related dockets. The parties proposed reducing the penalty from $48,262 to $12,065 and allowing payment in 20 monthly installments based on the operator's claimed financial condition. Judge Jerold Feldman noted that the financial statement…

May 30, 2003 ·Jerold Feldman ·FMSHRC
Settled
COMM

FABI Construction Company, Inc.

Construction violations affirmed after fatal slab collapse

A FABI employee was killed when a 10,000-pound concrete knockout slab collapsed during demolition at an Atlantic City construction project. After reviewing the full record, the Commission affirmed the judge's findings that FABI committed multiple serious construction violations, including failures…

May 30, 2003 ·OSHRC
Citations affirmed
COMM

Rosario Giacalone v. Matson Terminals, Incorporated, et al.

Giacalone v. Matson Terminals (BRB 02-0608): separate hearing loss claims against successive employers

Longshoreman Rosario Giacalone filed hearing loss claims after working in noise at Matson Terminals and later Marine Terminals. Two accepted hearing tests showed 36.6 percent binaural hearing loss in 1995 and 40.6 percent in 1998. The administrative law judge treated the claims as one and assigned…

May 29, 2003 ·BRB
Remanded
COMM

United States Department of Health and Human Services, Food and Drug Administration, New England District Office and National Treasury Employees Union

FDA consumer safety promotion (FLRA 0-AR-3596): Back pay award set aside

An FDA consumer safety inspector sought a temporary promotion and back pay after performing duties of a higher-grade consumer safety officer position. An arbitrator awarded both, finding she had been constructively detailed to that work. The Authority accepted that the claim was about a temporary…

May 29, 2003 ·FLRA
Modified
ALJ

Lafarge Building Chemical Corporation

Contest dismissed after citation vacated

MSHA issued Lafarge Building Chemical Corporation a citation concerning procedures for taking dust samples from a rotating rotary kiln at the Tulsa Plant. The citation alleged a violation of 30 C.F.R. § 56.14105, which generally requires machinery to be stopped and blocked before repair or…

May 28, 2003 ·Jerold Feldman ·FMSHRC
Procedural
COMM

Tidewater Virginia Federal Employees Metal Trades Council and United States Department of the Navy, Navy Public Works Center, Norfolk

Norfolk hazardous waste positions (FLRA 0-NG-2686): Upgrade clauses dismissed

The union proposed upgrading hazardous waste disposers from WG-6 to WG-7 if they held or earned a Class C commercial driver's license, and retaining employees who did not earn one at WG-6. The Authority treated the upgrade clauses together and found them outside the duty to bargain because they…

May 28, 2003 ·FLRA
Upheld
COMM

American Federation of Government Employees, Local 2142 and United States Department of the Army, Corpus Christi Army Depot

Corpus Christi mechanic selections (FLRA 0-AR-3606): Nonselection grievances denied

Two employees at Corpus Christi Army Depot challenged their nonselection for aircraft engine mechanic jobs. The union argued that the selected employees had submitted Air Force appraisals instead of Army appraisals and that favoritism affected the choices. An arbitrator found no proven improper…

May 28, 2003 ·FLRA
Upheld
COMM

United States Department of the Navy, Military Sealift Command and Marine Engineers' Beneficial Association

Military Sealift Command tanker pay (FLRA 0-AR-3599): Differential award set aside

Licensed engineers on a Military Sealift Command tanker sought the special pay differential given to engineers performing underway replenishment work. An arbitrator ruled that the vessel's classification entitled them to that differential at all times. The Authority found that the governing pay…

May 27, 2003 ·FLRA
Set aside
COMM

American Federation of Government Employees, Local 2006 and Social Security Administration, Region III

Social Security claims authorizer selection (FLRA 0-AR-3541): Grievance denial upheld

A Social Security Administration benefit authorizer challenged his nonselection for a claims authorizer position. An arbitrator found that the selecting officials used a rational and objective process under the parties' agreement and denied the grievance. The union argued that the award conflicted…

May 27, 2003 ·FLRA
Upheld
COMM

In re Y-T-L-, Respondent

Forced sterilization supported asylum grant

The Board considered whether the passage of time after the respondent's wife's forced sterilization, together with the absence of further persecution, rebutted the presumption that the respondent had a well-founded fear of persecution. The respondent was a Chinese national whose wife was…

May 22, 2003 ·BIA
Other
COMM

United States Department of Justice, Federal Bureau of Prisons, Metropolitan Detention Center, Guaynabo, Puerto Rico and American Federation of Government Employees, Local 4052

Guaynabo detention center uniform allowances (FLRA 0-AR-3620): Allowance award set aside

A federal detention center temporarily assigned employees from non-correctional jobs to correctional posts without requiring them to wear uniforms. An arbitrator awarded those employees uniform allowances and retroactive payments. The Authority found that the parties' agreement made a uniform…

May 22, 2003 ·FLRA
Set aside
COMM

Tallmadge Generating Station

In re Tallmadge Generating Station (EAB PSD Appeal No. 02-12): permit remanded in part

A petitioner challenged a PSD permit for the Tallmadge Generating Station. The Environmental Appeals Board remanded because MDEQ's response to comments was inadequate in the administrative record and because the permit contained unsupported startup and shutdown emission conditions. The Board denied…

May 21, 2003 ·EPA EAB
Mixed result
ALJ

Anderson Masonry, Inc.

Scaffold access and locking-pin violations affirmed

Employees erecting Anderson Masonry's scaffold climbed cross bracing because no ladder or other safe access had been provided, and scaffold frames lacked locking pins despite repeated forklift deliveries that could cause uplift. Those serious violations were affirmed with penalties totaling $3,000…

May 21, 2003 ·Ken S. Welsch ·OSHRC
Mixed result
COMM

Damon E. Cunningham, Jr. v. Bath Iron Works Corporation

Cunningham v. Bath Iron Works (BRB 02-0577): inland pipe shop outside covered maritime area

Damon Cunningham injured his back while working as a pipefitter at Bath Iron Works' East Brunswick Manufacturing Facility. The facility made pipe sections for ships built at the company's waterfront shipyard several miles away. The Board held that the nearby Thompson Brook was not navigable and…

May 16, 2003 ·BRB
Affirmed
COMM

United States Department of Veterans Affairs, VA Regional Office, St. Petersburg, Florida and American Federation of Government Employees, Local 1594

St. Petersburg VA flexiplace program (FLRA 0-AR-3582): Suspension award upheld

A VA regional office suspended its flexiplace program without consulting the union as its agreement required. An arbitrator ordered the office to restore the program, process applications, and consider employee claims for losses caused by the suspension. The VA argued that a growing workload…

May 16, 2003 ·FLRA
Upheld
COMM

United States Department of the Treasury, Internal Revenue Service, Austin Service Center and National Treasury Employees Union, Chapter 72

IRS Austin accommodation grievance (FLRA 0-AR-3486): Arbitration award set aside

An IRS tax examiner requested changes to her keyboarding work because of carpal tunnel syndrome. An arbitrator found that the IRS had failed to provide a reasonable accommodation and ordered it to restore leave, reimburse any pay loss, and explore other work. The Authority found that the IRS had…

May 16, 2003 ·FLRA
Set aside
COMM

United States Department of the Air Force, Luke Air Force Base, Arizona and American Federation of Government Employees, Local 1547, AFL-CIO

Luke Air Force Base EEO meetings (FLRA DE-CA-00309): Union notice order upheld

Luke Air Force Base held three meetings with a bargaining unit employee about her formal employment discrimination complaint without notifying the union. The Authority agreed with the ALJ that the meetings were formal discussions about a grievance under the federal labor relations statute. It…

May 15, 2003 ·FLRA
Upheld
ALJ

Secretary of Labor on behalf of Charles Scott Howard v. Panther Mining, LLC, Cave Spur Mining, LLC, and Black Mountain Resources, LLC

Economic temporary reinstatement approved

Charles Scott Howard had obtained other employment after leaving Cave Spur Mining, but at a lower rate of pay. The parties negotiated a settlement providing for temporary economic reinstatement, with the respondents paying the difference between Howard's average weekly pay at Cave Spur and his…

May 13, 2003 ·Gary Melick ·FMSHRC
Procedural
COMM

Robert Castro v. General Construction Company and Liberty Northwest Insurance Company

Castro v. General Construction (BRB 02-0783): total disability benefits during vocational training

Pile driver Robert Castro injured his knee at work and could not return to his former job. His employer identified other jobs he could physically perform, but Castro enrolled in a Labor Department vocational program in hotel tourism. The Board upheld total disability benefits during training…

May 13, 2003 ·BRB
Affirmed
ALJ

James Womack v. Graymont Western US Inc.

Termination claim granted, earlier discipline claims denied

James Womack worked as a kiln operator at Graymont's Tacoma quick-lime plant and had previously received accommodations for a back condition. After he complained to MSHA about protective clothing following burn injuries, he received reprimands, a suspension, unpaid leave, and later termination…

May 12, 2003 ·Jerold Feldman ·FMSHRC
Mixed result
COMM

American Federation of Government Employees, Local 1122 and Social Security Administration, Western Program Service Center, Richmond, California

Social Security downgrade grievance (FLRA 0-AR-3574): Untimely grievance dismissal upheld

A Social Security Administration employee challenged his reassignment to a lower grade during his probationary period. An arbitrator dismissed the grievance because it was filed after the collective bargaining agreement's 15-day deadline. The union argued that the grievance was timely and raised…

May 12, 2003 ·FLRA
Upheld
COMM

UniSea, Inc.

In re UniSea, Inc. (EAB NPDES Appeal No. 03-04): petition dismissed as moot

UniSea, Inc. challenged an EPA Region X permit determination for its facility. UniSea later withdrew its petition after the Region issued a revised permit determination incorporating the requested changes. The Environmental Appeals Board found the petition moot and dismissed it with prejudice. The…

May 8, 2003 ·EPA EAB
Procedural
COMM

In re Jose Abraham DEANDA-ROMO, Respondent

Petty offense did not stop residence accrual

The Board reviewed whether the respondent's first misdemeanor crime involving moral turpitude ended the seven-year continuous-residence period needed to seek cancellation of removal. The respondent had two misdemeanor assault convictions, but the first qualified for the statutory petty-offense…

May 8, 2003 ·BIA
Remanded
COMM

In re Fidel GARCIA-HERNANDEZ, Respondent

Petty offense preserved cancellation eligibility

The Board reviewed whether a misdemeanor conviction for corporal injury to a spouse made the respondent ineligible for cancellation of removal. The conviction qualified for the statutory petty-offense exception because it was charged as a misdemeanor and the respondent received a sentence of less…

May 8, 2003 ·BIA
Remanded
ALJ

GFW Construction

Contest dismissed for ignoring discovery order

GFW Construction failed to answer the Secretary's interrogatories even after the judge ordered a full response within five days and warned that noncompliance would lead to sanctions. GFW also did not respond to the Secretary's sanctions motion. Finding that the refusal to comply was conscious…

May 8, 2003 ·Irving Sommer ·OSHRC
Citations affirmed
COMM

Coast Wood Preserving, Inc.

In re Coast Wood Preserving, Inc. (EAB EPCRA Appeal No. 02-01): reporting liability and $23,375 penalty vacated

Coast Wood Preserving, Inc. and related company Cal Coast Lumber operated on adjacent property in Ukiah, California, under common control. EPA treated the companies as one EPCRA facility and alleged that Coast Wood failed to submit Toxic Chemical Release Inventory Forms for chromium, arsenic, and…

May 6, 2003 ·EPA EAB
Vacated
COMM

American Federation of Government Employees, Local 2128 and United States Department of Defense, Defense Contract Management Agency, District West, Hurst, Texas

Defense Contract Management holiday pay (FLRA 0-AR-3610): Compressed schedule award upheld

Employees on compressed work schedules received only eight hours of holiday pay even when they would otherwise have worked nine or ten hours. An arbitrator found that the agency had allowed compressed schedules as a past practice and awarded back pay with interest for qualifying holiday periods…

May 6, 2003 ·FLRA
Upheld
ALJ

Creative Gold, Inc.

Late contest dismissed after FedEx delivery

After certified-mail attempts were returned, OSHA sent two citations by FedEx to Creative Gold's new Brooklyn address, where someone at the shared entrance signed for them. The judge held that service was reasonably calculated to provide notice and that receipt occurred on the delivery date…

May 5, 2003 ·Irving Sommer ·OSHRC
Procedural
COMM

United States Department of the Air Force, 913th Air Wing, Willow Grove Air Reserve Station, Pennsylvania and National Association of Government Employees, Local R3-32

Air Force union president's official time (FLRA 0-AR-3576): Arbitration award upheld

The president of a union representing employees at an Air Force reserve station used 8.75 hours of annual leave to attend hearings in two grievances the agency had filed against the union. An arbitrator found that attending the hearings was a representational function under the parties' agreement…

May 5, 2003 ·FLRA
Upheld
COMM

United States Department of the Army, United States Army Signal Center and Fort Gordon, Fort Gordon, Georgia and American Federation of Government Employees, Local 2017

Fort Gordon fire truck staffing (FLRA 0-AR-3508): Arbitration award set aside

Fort Gordon sent two firefighters in a fire truck and two in an emergency vehicle when responding to fires. The union grieved that practice, citing a Defense Department instruction requiring four firefighters on a structural or aerial fire truck. An arbitrator ordered the Army to dispatch no such…

May 2, 2003 ·FLRA
Set aside
ALJ

Secretary of Labor v. U.S. Steel Mining Company, Inc.

Enclosed conveyor citation affirmed

MSHA found a half-inch hole in an enclosed flight conveyor in U.S. Steel's granular coal injection system at the Concord preparation plant. The opening allowed outside air into a system designed to maintain an inert atmosphere around coal dust and methane, creating a potential fire or explosion…

April 30, 2003 ·Gary Melick ·FMSHRC
Citations affirmed
COMM

Charity E. Clark (widow of Benjamin J. Clark) v. Barnwell Coal Company

Clark v. Barnwell Coal (BRB 01-0876): Trust Fund must pay survivor's benefits

Charity Clark won survivor's black lung benefits after the death of her husband, Benjamin, and that award was not challenged on appeal. Barnwell Coal disputed the ruling that it had employed him long enough to be responsible for payment. The Board found that the judge's three methods of estimating…

April 30, 2003 ·BRB
Mixed result
COMM

National Association of Government Employees, Local R1-109 and United States Department of Veterans Affairs, VA Connecticut Healthcare System

VA Connecticut operator suspension (FLRA 0-AR-3622): Five-day discipline upheld

A VA Connecticut boiler operator missed a scheduled shift after police arrested him while he was driving toward work. He later requested sick leave for another shift and told his supervisor that he had been incarcerated. The agency imposed a five-day suspension, and an arbitrator found just cause…

April 30, 2003 ·FLRA
Upheld
COMM

American Federation of Government Employees, Local 1757 and United States Department of the Air Force, 311th Human Systems Wing, Brooks Air Force Base, Texas

Brooks Air Force Base performance appraisal (FLRA 0-AR-3542): Award upheld

A procurement technician at Brooks Air Force Base challenged a performance appraisal that was below the superior rating she expected. An arbitrator found that the agency failed to annotate a performance form as the agreement required, but that the employee knew the standards for a higher rating and…

April 30, 2003 ·FLRA
Upheld
COMM

United States Department of Agriculture, Farm Service Agency, New York State Office, Malone, New York and American Federation of Government Employees, Local 2831

Farm Service Agency step increase (FLRA 0-AR-3537): Arbitration award set aside

A Farm Service Agency employee moved from a county position to a federal position while continuing essentially the same work at the same office. An arbitrator awarded her a retroactive within-grade step increase, treating her county service as continuous federal service for that purpose. The agency…

April 30, 2003 ·FLRA
Set aside
COMM

United States Department of the Navy, Naval Surface Warfare Center, Indian Head Division, Indian Head, Maryland and American Federation of Government Employees, Local 1923

Indian Head higher-grade duties (FLRA 0-AR-3517): Temporary promotion award upheld

A Navy personnel certification assistant at Indian Head performed duties associated with a higher-grade program analyst position. An arbitrator awarded a retroactive temporary promotion, back pay, and interest after finding that she performed the higher-grade duties for at least a quarter of her…

April 30, 2003 ·FLRA
Upheld
COMM

Kendall New Century Development

In re Kendall New Century Development (EAB PSD Appeal No. 03-01): PSD permit review denied

Kendall New Century Development, LLC sought a PSD permit for an eight-turbine, natural-gas-fired electric generating facility in Kendall County, Illinois. Verena Owen challenged the permit's carbon monoxide best available control technology limit, the exclusion of a catalyst from the BACT analysis…

April 29, 2003 ·EPA EAB
Affirmed
ALJ

Secretary of Labor v. Branham and Baker Coal Company, Inc.

Respirable-dust petitions dismissed for lack of fair notice

Branham and Baker operated Kentucky surface mines subject to MSHA respirable-dust monitoring rules. The dispute concerned whether a designated work position continued when the mining equipment tied to that position left the mine, requiring the operator to take samples from substitute equipment…

April 29, 2003 ·Irwin Schroeder ·FMSHRC
Citations vacated
ALJ

Secretary of Labor on behalf of Mark Gray v. North Star Mining, Inc., Mike Caudill, and Jim Brummett

Discrimination complaint dismissed

Mark Gray was a roof bolter at North Star Mining who was subpoenaed for a federal grand jury investigating mine safety issues, but the prosecutor did not call him after another miner testified. Gray claimed that threats, workplace conduct, and a shift transfer forced him to quit in retaliation for…

April 29, 2003 ·Jacqueline R. Bulluck ·FMSHRC
Other

What these documents are

  • The agencies: Federal workers' compensation appeals from the Department of Labor's Employees' Compensation Appeals Board (ECAB), federal-sector labor-relations cases from the Federal Labor Relations Authority (FLRA), mine-safety cases from the Federal Mine Safety and Health Review Commission (FMSHRC), workplace-safety cases from the Occupational Safety and Health Review Commission (OSHRC), Longshore Act and Black Lung Benefits Act appeals from the Department of Labor's Benefits Review Board (BRB), precedent decisions of the Board of Immigration Appeals (BIA), environmental permit and penalty appeals from the EPA's Environmental Appeals Board (EAB), and whistleblower and other labor appeals from the Department of Labor's Administrative Review Board (ARB). Each decision page names its agency.
  • Commission, Board and Authority decisions: Rulings by the agency's highest review level (the Commission at OSHRC and FMSHRC, the Authority at FLRA, the Board of Immigration Appeals, the Administrative Review Board at Labor, and the Environmental Appeals Board at EPA). These are citable as precedent, though a decision may have been appealed to a U.S. Court of Appeals after issuance.
  • ALJ decisions: Rulings by the agency's Administrative Law Judges after a hearing. When no Commissioner directs review, an ALJ decision becomes a final order that binds the parties in that case but is not binding precedent: under 29 U.S.C. § 661(j) at OSHRC, and after the 40-day window of 30 U.S.C. § 823(d)(1) at FMSHRC.
  • Why finality matters: Every page here says which kind of decision you are reading, so you know whether it is precedent you can cite or a final order that only shows how one judge ruled on one set of facts.
  • Where they come from: Every page links the official public release from the deciding agency, and the full text on the page is that release. The plain-English summaries are written by Ezel.