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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Sumas Energy 2 Generation Facility
In re Sumas Energy 2 Generation Facility (EAB PSD Appeal Nos. 02-10 and 02-11): permit remanded for technical correction
The Province of British Columbia and Environment Canada challenged a PSD permit for an electric generating facility near the Canadian border. The EAB found that the permit incorrectly retained references to “either fuel” in a startup and shutdown condition even though the permit required the…
Secretary of Labor on behalf of Raymond Roman v. Eagle Coal Company, Inc.
Hearing postponement denied
The discrimination hearing in Raymond Roman's case had been delayed after two essential witnesses became subjects of related criminal and Section 110(c) investigations. Eagle Coal again sought a postponement because it had not received a letter from the U.S. Attorney declining prosecution and…
Secretary of Labor on behalf of Andrew J. Garcia v. Colorado Lava, Inc.
Discrimination complaint dismissed on remand
Andrew J. Garcia complained to MSHA after Colorado Lava's predecessor directed him to operate a front-end loader with a nonworking parking brake. After Colorado Lava acquired the facility, it did not rehire Garcia, and the Commission sent the case back for further proceedings after an earlier…
Social Security Administration, Seattle Region and American Federation of Government Employees, Local 3937
SSA Seattle computer access discipline (FLRA 0-AR-3614): One day suspension upheld
The Social Security Administration suspended an employee for two days after he accessed his own agency computer record without authorization. An arbitrator found discipline warranted but reduced the suspension to one day because the agency had not adequately considered how it had handled similar…
American Federation of Government Employees, Local 507 and United States Department of Veterans Affairs Medical Center, West Palm Beach, Florida
West Palm Beach VA weekend work grievance (FLRA 0-AR-3551): Compensatory time ruling upheld
A VA medical center offered three employees a choice between temporarily changing their regular schedules to cover three weekends or working one weekend for compensatory time. The employees chose the second option, and the union grieved, arguing that the choice was coerced and that the agency…
American Federation of Government Employees, AFL-CIO, Local 1923 and Social Security Administration, Baltimore, Maryland
Social Security Administration suspension grievances (FLRA 0-AR-3544): Remand remedy upheld
The Social Security Administration suspended three employees after separate instances of unauthorized access to its computer records. An arbitrator found that the agency had not fully considered the Douglas penalty factors and returned the grievances so the agency could reconsider and reissue each…
Casey J. Mayberry v. Oxbow Mining, LLC
Discrimination complaint dismissed
Casey J. Mayberry worked as a temporary contract miner at Oxbow Mining's underground Sanborn Creek Mine in Colorado. He said he complained to MSHA about ventilation and that Oxbow later failed to rehire him after a foot injury and the loss of another job opportunity. Judge Richard W. Manning…
Michigan CAFO General Permit
In re Michigan CAFO General Permit (EAB NPDES Appeal No. 02-11): petition dismissed for lack of jurisdiction
Sandra K. Yerman challenged Michigan's general NPDES permit for concentrated animal feeding operations. The Environmental Appeals Board held that it could not review the permit because Michigan issued it under its federally approved state program. The Board also held that NPDES general permits…
Roosevelt Ezell v. Direct Labor, Incorporated and The Gray Insurance Company
Ezell v. Direct Labor (BRB 00-0478): regular work boat travel establishes maritime coverage
Rigger Roosevelt Ezell injured his back while riding a boat from an assigned worksite to his employer's shore facility. The Board held that his employer required boat travel to worksites on more than half of his preinjury workdays, so his presence on navigable water was part of his work rather than…
Equipment Depot, LTD
Two forklift safety items affirmed after fatal accident
An Equipment Depot field technician died after a Hyster forklift rolled and pinned him against his service truck. The judge found the lockout/tagout standard applicable because the service call included authorized repairs, but concluded that Equipment Depot's combined formal, apprenticeship, and…
Black Hills Bentonite
Mine Act discrimination complaint dismissed after injury
Jason C. Sheperd, a loader operator and laborer at Black Hills Bentonite's Casper plant, alleged that the company discriminated against him after he injured his neck and back and was required to keep doing heavy work despite doctors' light-duty restrictions. Judge Richard W. Manning held that…
Carlos Goicochea v. Wards Cove Packing Company and Alaska National Insurance Company
Goicochea v. Wards Cove Packing (BRB 02-0439): dismissal and immigration record orders vacated
Carlos Goicochea sought additional benefits after a work related knee injury. An administrative law judge ordered him to authorize release of his immigration file, then dismissed his claim when he did not comply. The Board held that the Longshore Act provides a specific procedure for disobedience…
Hill Brother Construction, Inc.
Late contest dismissed after owner failed to read notice
Hill Brothers' president received OSHA's citations well before the contest deadline but looked only at the proposed penalties and did not read the prominently stated filing instructions. He then consulted several attorneys and made no effort to contact OSHA until more than 40 days after the…
Fraternal Order of Police, Local 158 and United States Department of the Navy, NAVSEA Crane Division Naval Surface Warfare Center, Crane, Indiana
Navy police hazard pay proposal (FLRA 0-NG-2669): Petition dismissed over classification issue
A police officers' union at the Navy's Crane facility proposed hazard pay for work near explosives or toxic chemicals. The Navy argued that the proposal required a determination of whether those hazards were already accounted for in the officers' position classifications. The Authority agreed and…
Safeway, Inc.
Review vacated after split over propane grill citation
Safeway managers directed employees to adapt an oversized 40-pound propane cylinder to a grill designed for a 20-pound cylinder, leaving the larger cylinder leaning against the grill. Escaping liquid propane ignited and injured two employees. Both participating Commissioners agreed that the…
George Harms Construction Co., Inc.
Late contest dismissed when mail handler was not called
George Harms Construction had established mail procedures, and its president acted promptly after learning of the citation through a collection notice. But the employee who signed for, date-stamped, and distributed certified mail did not testify, even though she was the only known person to possess…
Ormet Primary Aluminum Corporation, Hannibal Reduction Division
Review vacated after split over union settlement objection
The Secretary and Ormet settled a citation with a proposed $3,400 penalty, but the participating union said it had timely objected to the settlement's abatement method in a letter the judge apparently never received. Chairman Railton would have affirmed the settlement because an employee…
American Federation of Government Employees, Local 1546 and United States Department of Defense, Defense Logistics Agency, Defense Distribution Depot San Joaquin, Stockton, California
San Joaquin depot staffing proposal (FLRA 0-NG-2644): Contract dispute outside negotiability appeal
A union at the San Joaquin defense depot proposed moving 100 employees from the Bulk Division to the Bin Division. The agency argued that it had no duty to bargain and that the union's negotiability petition was late. The Authority found the petition timely, but dismissed it because the dispute…
Manalapan Mining Company
Safety-retaliation complaint dismissed after foreman discharge
Danny Foust was a foreman and certified electrician at Manalapan Mining's coal preparation plant when the company discharged him on May 31, 2001. The Secretary alleged that the discharge was retaliation for safety activity, including Foust's refusal to sign the electrical book because of overloaded…
Mineral Recovery Specialists, Inc.
Subpoena revoked as moot and overbroad
Thomas P. Dye sought a subpoena for broad records from Cotter Corporation, a nonparty, in his discrimination case against Mineral Recovery Specialists. Dye alleged that MRSI terminated him after he insisted that repaired equipment be fully safety-tested before it returned to service. Judge Richard…
Alcoa-Warrick Power Plant
In re Alcoa-Warrick Power Plant (EAB PSD Appeal No. 02-14): petition denied for lack of jurisdiction
Stephen A. Loeschner challenged an Indiana permit allowing Alcoa-Warrick Power Plant to install low-nitrogen-oxide burners on three boilers. He argued that the project should have been treated as a federal PSD matter and that the permit had been mislabeled. The Environmental Appeals Board held that…
Social Security Administration, Office of Hearings and Appeals, Nashville, Tennessee and Association of Administrative Law Judges, International Federation of Professional and Technical Engineers
SSA Nashville case file procedures (FLRA CH-CA-01-0347): Bargaining complaint dismissed
The Social Security Administration began sending administrative law judges certain cases recommended for decision on the record without the fully organized exhibit files they had usually received. A union complained that the agency should have provided notice and an opportunity to bargain over the…
Dorothy Boone v. Newport News Shipbuilding and Dry Dock Company
Boone v. Newport News Shipbuilding (BRB 02-0414): warehouse clerk covered and award corrected
Dorothy Boone injured her knee while routing incoming materials in a shipyard warehouse. The Board reaffirmed that her work was integral to shipbuilding and upheld the finding that the office clerical exclusion did not apply because she worked on the warehouse floor. It also found that the…
Virginia Slate Company
Remand decision sets $1,850 penalty
Virginia Slate returned to the judge after the Commission vacated and remanded earlier unwarrantable-failure determinations and penalty assessments. Judge Avram Weisberger found that the operator's failure to provide an impeding device for a front-end loader was not unwarrantable, but that the…
American Federation of Government Employees, Local 446 and United States Department of Veterans Affairs Medical Center, Asheville, North Carolina
Asheville VA standby pay grievance (FLRA 0-AR-3568): Interest added and fees remanded
Employees at the Asheville VA Medical Center won an arbitration award for standby pay they had not received after sick leave. The arbitrator denied interest and attorney fees, reasoning in part that the fee claim had been heard in arbitration rather than court. The Authority added interest because…
Villa Marina Yacht Harbor, Inc.
Late contest denied after messenger mishandled mail twice
Villa Marina's messenger signed for an OSHA citation and failure-to-abate notice on January 18 but delivered them to the office the next day without disclosing the earlier pickup date. A secretary therefore stamped them received on January 19, causing the company to calculate the deadline one day…
Pico Industries
Two construction items affirmed with $650 in penalties
Following an OSHA inspection in June 2002, Pico Industries contested a citation alleging two serious construction-safety violations and $4,200 in proposed penalties. After an E-Z Trial hearing, the judge issued a bench decision. The written order affirmed item 1 as serious with a $500 penalty and…
D. Allen Bros., Inc.
Scaffold fall-protection violation affirmed after fatal fall
A bricklayer fell 42 feet to his death while crossing between scaffold sections that lacked end rails, and neither he nor his coworker wore personal fall protection. The construction manager's safety official had documented missing end rails on D. Allen scaffolds ten times before the accident and…
Lodestar Energy, Inc.
Weekly air-course examination citation affirmed on remand
Lodestar Energy was cited after it examined one entry but not a second entry in a 6,615-foot intake air course at its Baker Mine. On remand from the Commission, Judge T. Todd Hodgdon considered whether the regulation gave Lodestar adequate notice that both entries required weekly examination. He…
Parsons Contracting
Default entered after repeated missed conferences
Parsons Contracting missed a scheduled pretrial telephone conference but initially avoided default by explaining confusion about whether it would occur. The company then agreed to a second conference, failed to appear again without notice, and did not respond to the judge's order to show cause. The…
Lunda Construction Co.
Bridge-demolition lead violations result in $33,500 penalties
Lunda demolished a Milwaukee viaduct containing residual lead paint and relied on monitoring from a different bridge project instead of assessing the distinct cutting tasks at the new site. When employees began sizing steel on the ground, one cutter was exposed to more than 70 times the lead…
U.S. Borax, Inc.
Prehearing order sets discrimination case and settlement steps
Robert G. Jungers alleged that U.S. Borax retaliated against him after he spent time with OSHA compliance officers and that a supervisor removed workplace cleanup assignments. Judge Richard W. Manning explained that the case would turn on whether Jungers engaged in protected Mine Act activity and…
Big Buck Asphalt
Settlement not approved pending financial documentation
The parties asked Judge Jerold Feldman to approve a settlement reducing Big Buck Asphalt's proposed civil penalty from $48,262 to $12,065, with payment spread over 20 installments. The judge found that the submitted financial statement was unaudited and did not adequately explain the relationship…
American Federation of Government Employees, Local 2145 and United States Department of Veterans Affairs Medical Center, Richmond, Virginia
Richmond VA arbitration appeal (FLRA 0-AR-3653): Union exception denied
A union at the Richmond VA Medical Center sought Authority review of an arbitration award. The Authority considered the record and the standard for finding an award deficient under the federal labor statute. It concluded that the union's exception did not establish a ground to disturb the award. It…
Avon Contractors, Inc.
Late notice of contest dismissed
Avon Contractors received an OSHA citation but did not file a notice of contest within the required 15 working days. The company argued that a disgruntled receptionist may have destroyed the citation and that the late filing resulted from mistake or excusable neglect. The judge found that Avon did…
84 Components Company
Settlement approval set aside for inquiry into disputed abatement
After the judge approved a settlement, 84 Components asserted that the parties had not agreed on how to abate one machine-guarding item. The Secretary did not oppose the company's request for relief. The Commission set aside the approval and remanded so the judge could investigate the disputed…
Proto Construction & Development Corp.
Late notice of contest dismissed and the citation affirmed in full
OSHA inspected a Proto Construction worksite in the Bronx in August 2002 and issued a citation on September 20, 2002. Proto received it by certified mail on September 23, which gave it until October 15 to file a notice of contest. An employer that misses that 15 working day deadline loses the right…
Big Poll Construction, Inc.
Late notice of contest dismissed
Big Poll Construction filed its notice of contest after the 15-working-day deadline and did not respond to the Secretary's dismissal motion. The company had attributed the delay to confusion about a letter from its engineer, but that letter predated the citation and did not concern contesting it…
Anderson Columbia Co., Inc.
Truck-bed transport violations yield $14,000 penalty
Anderson Columbia used a pickup truck to carry an employee and oversized traffic warning signs along a highway work area. The employee fell from the moving truck bed and later died from his injuries. The judge affirmed a serious violation for failing to secure the signs and found that allowing the…
Stahl Roofing, Inc.
Roofing safety citations vacated for lack of employer knowledge
OSHA cited Stahl Roofing after employees at two residential worksites lacked required fall protection and, at one site, eye protection. The Commission found that Stahl had appropriate work rules, training, site inspections, and progressive discipline, and that the employees' prior safety records…
M & H Coal Company
Roof-control violations affirmed and proceedings stayed
M & H Coal began removing pillars at its Mercury Slope Mine before MSHA approved an addendum to the mine's roof control plan. MSHA issued a citation and an order after observing the work, and the Secretary sought summary decision. Judge Michael E. Zielinski held that M & H had not waited for the…
United States Department of the Treasury, Customs Service, Tucson, Arizona and National Treasury Employees Union, Chapter 116
Tucson Customs weapon authorization grievance (FLRA 0-AR-3553): Premature exceptions dismissed
A Customs employee challenged two temporary suspensions of his authorization to carry a service weapon. An arbitrator found that the suspensions initially were reasonable but lasted too long, and asked the parties to consider whether the employee had lost earnings. The agency filed exceptions while…
United States Department of Health and Human Services, Navajo Area Indian Health Service and Laborers' International Union of North America, Local 1376
Navajo Area Indian Health Service transfer grievance (FLRA 0-AR-3581): Premature exceptions dismissed
An Indian Health Service employee grieved after an expected transfer offer was withdrawn following contact between managers. An arbitrator found violations of law and the labor agreement but left the remedy for the parties to develop, retaining jurisdiction if they could not agree. The agency filed…
In re Bassel Nabih ASSAAD, Respondent
Ineffective-assistance claim failed for lack of prejudice
The Board reviewed a Syrian respondent's motion to reopen after his former attorney filed an appeal one week late from an order denying a waiver related to his conditional permanent resident status. The respondent argued that ineffective assistance of counsel caused the late filing and that the…
Thelma Braenovich (survivor of and on behalf of Stoin Braenovich) v. Cannelton Industries, Incorporated/Cypress Amax
Braenovich v. Cannelton Industries (BRB 02-0365): Miner and survivor benefit awards upheld
Thelma Braenovich sought black lung benefits as Stoin Braenovich's widow and on his behalf. The judge found that autopsy evidence established complicated pneumoconiosis, triggering an irrebuttable presumption of disability and death due to the disease. The Board upheld that finding after the judge…
AMSCO, Inc.
Default dismissal vacated after missed conference
Amsco's attorney missed one scheduled prehearing telephone conference because of staffing and communication problems at his law firm. The judge declared Amsco in default and dismissed its notice of contest, relying partly on the attorney's conduct in unrelated cases. The Commission found no…
Aggregate Industries, West Central Region, Inc., Contestant
Aggregate Industries, West Central Region, Inc. (FMSHRC WEST 2002-317-RM, WEST 2002-318-RM, WEST 2002-319-RM, WEST 2003-32-M and WEST 2003-33-M): Special-assessment form ordered produced, depositions denied
Aggregate Industries contested four citations and two civil penalty proceedings at its Fort Collins Plant. It asked for the Secretary's Special Assessment Review Form and for a deposition of an MSHA official about the special-assessment process. Judge Richard W. Manning held that the Secretary's…
Frank Lill & Son, Inc.
Fall-protection violation reduced from willful to serious
Frank Lill employees worked and walked on narrow generator catwalks 75 to 85 feet above lower levels without guardrails, nets, or attached personal fall protection. The judge found that employees could foreseeably enter the fall hazard zone and that management knew workers did not always tie off…
Summit Contractors, Inc.
Subcontractor fall-hazard citations vacated for lack of knowledge
OSHA cited Summit, the general contractor for a large apartment project, for several fall hazards affecting subcontractor employees. The judge held that Summit's broad contractual and practical authority made it a controlling employer under the multi-employer worksite doctrine. She vacated the…
Mineral Recovery Specialists, Inc.
Thomas P. Dye v. Mineral Recovery Specialists, Inc. (FMSHRC WEST 2002-408-DM): Motion to add related companies denied
Thomas P. Dye alleged that Mineral Recovery Specialists, Inc. discriminated against him after he insisted that repaired equipment be fully safety-tested before it returned to service. He sought to add Recovery Dynamics LLC and TBD LLC as respondents, arguing that the companies shared owners…
American Federation of Government Employees, Local 1827 and United States Department of Defense, National Imagery and Mapping Agency, St. Louis, Missouri
AFGE Local 1827 and National Imagery and Mapping Agency (FLRA 0-NG-2626): Three outsourcing proposals negotiable, five rejected
The National Imagery and Mapping Agency planned to contract out two functions over seven years, and AFGE Local 1827 proposed terms for affected employees and the contractor's role. The Authority found two proposals for voluntary separation incentives negotiable as appropriate arrangements for…
CDK Contracting Company
Fatality-related penalty dismissal denied
CDK Contracting Company, a construction contractor, contested a citation and a proposed $100 penalty connected to a fatal accident at the Portland Plant and Quarry. CDK argued that MSHA proposed the penalty too late, about 16 months after issuing the citation and about 13 months after completing…
CDK Contracting Company
Penalty dismissal denied after fatality investigation delay
CDK Contracting Company contested eight of twelve citations and sought dismissal of the related civil penalty proceeding, arguing that MSHA proposed the penalties too late after a fatal accident investigation at the Portland Plant and Quarry. The penalties were proposed 13 to 15 months after the…
Extreme Buildings Services Corp.
Unclaimed mail and late contest lead to dismissal
Extreme Buildings Services did not claim OSHA's certified-mail package despite three postal notices. OSHA then delivered the citation by Federal Express, but the company mailed its notice of contest after the resulting 15-working-day deadline. The company did not respond to the Secretary's…
CIR Electrical Construction Corp.
Controller's illness does not excuse late contest
CIR Electrical filed its notice of contest after the 15-working-day deadline and did not respond to the Secretary's dismissal motion. The company explained that the citation had been placed on the desk of its controller, who was briefly out sick, and was not found until the controller returned. The…
Constructora Marvic, Inc.
First OSHA case does not excuse late contest
Constructora Marvic mailed its notice of contest after the 15-working-day deadline and did not respond to the Secretary's dismissal motion. The company said this was its first OSHA citation, it expected an informal meeting, it had corrected the hazards, and the penalty strained its finances. The…
Whirlpool Corporation, Oxford Division
Press safety and lockout violations affirmed
A press operator suffered severe head injuries when a mechanical power press cycled while she was inside it removing material. The judge found that Whirlpool lacked machine-specific energy-control procedures, left press-control keys available to operators without adequate supervision, and did not…
Cason Roofing, LLC
Late contest accepted after faulty service advice
OSHA's original certified mailing was returned, and the judge found that the agency had not proved its compliance officer later hand-delivered the citation. Cason Roofing did receive the citation by fax, which provided actual notice and completed service. OSHA personnel then incorrectly told the…
Eastern Associated Coal Corp.
Three citations vacated, two affirmed or modified
Eastern Associated Coal operated the Harris No. 1 underground coal mine in West Virginia. During polyurethane roof grouting, falling roof material struck a contractor employee, causing a serious knee injury, and MSHA issued five citations. Judge T. Todd Hodgdon vacated three citations because the…
CB&I Constructors, Inc.
Gas-cylinder item withdrawn and fall item corrected to serious
The Commission reviewed a decision involving access, fall-protection, scaffold-platform, ladder, and compressed-gas-cylinder conditions during construction of a water tower. The Secretary withdrew the compressed-gas-cylinder item, and the Commission granted that withdrawal. It also corrected the…
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.