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

U.S. Department of Defense, Education Activity, Arlington, Virginia (Agency) and Federal Education Association (Union)

Defense Education Activity and Federal Education Association (FLRA 0-AR-3274): interest on delayed housing allowance upheld

An overseas teacher’s housing-allowance application was lost, and the agency paid the allowance in installments long after its submission. An arbitrator found violations of contractual and statutory payment obligations and awarded interest under the Back Pay Act. She excluded interest for the…

September 29, 2000 ·FLRA
Upheld
COMM

U.S. Department of the Navy, Naval Surface Warfare Center, Indian Head Division, Indian Head, Maryland (Agency) and American Federation of Government Employees, Local 1923 (Union)

Navy Indian Head Division and AFGE Local 1923 (FLRA 0-AR-3246, 0-AR-3287): compliance and attorney-fee awards remanded

The Navy challenged two awards enforcing settlements of grievances, including a position-description dispute. The Authority rejected allegations of arbitrator bias, an unfair hearing, and excess authority. It held that pending exceptions stayed the fourth award, so the arbitrator could not enforce…

September 29, 2000 ·FLRA
Remanded
COMM

U.S. Department of Defense, Education Activity, Arlington, Virginia (Agency) and Federal Education Association (Union)

Defense Education Activity and Federal Education Association (FLRA 0-AR-3229): teacher pay correction and interest upheld

An overseas teacher sought credit for prior teaching experience after the agency paid her at the wrong salary step. An arbitrator found the grievance timely under the agreement and the parties’ practice, sustained it, and ordered interest and an audit of the corrected pay. The Authority rejected…

September 29, 2000 ·FLRA
Upheld
COMM

U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Depot Red River, Texarkana, Texas (Agency) and National Association of, Government Employees, Local R14-52 (Union)

Defense Distribution Depot Red River and NAGE Local R14-52 (FLRA 0-AR-3192-REM): restriction on drug-testing positions set aside

An arbitrator ordered the depot to rescind positions added to its random drug-testing program. After an earlier remand, he clarified that the agreement allowed additions only when later federal court decisions expanded or clarified the positions eligible for testing. The Authority held that this…

September 29, 2000 ·FLRA
Set aside
COMM

American Federation of Government Employees, Council, of Prison Locals, Local 1286 (Union) and U.S. Department of Justice, Federal Bureau of Prisons and Federal Prison Industries, Inc. (Agency)

AFGE Local 1286 and Federal Bureau of Prisons (FLRA 0-AR-3112): representation dispute returned for clarification

Two prison employees requested union representation while an FBI agent questioned them about drugs found at work, with a prison investigations lieutenant present. The arbitrator denied their grievance because the FBI conducted the criminal investigation. The Authority could not determine whether he…

September 29, 2000 ·FLRA
Remanded
ALJ

Gabel Stone Company, Inc.

Quarry operator found to have discharged miner for safety complaint

Gabel Stone operated a small Missouri quarry that mined, crushed, sized, and stockpiled stone. John Noakes filed a confidential MSHA hazard complaint describing eight safety concerns, after which the operator restricted his work, encouraged him to leave, and ended his employment. Judge T. Todd…

September 28, 2000 ·T. Todd Hodgdon ·FMSHRC
Citations affirmed
COMM

McDevitt Street Bovis, Inc.

General contractor liable for a subcontractor's scaffold violations

McDevitt Street Bovis was the general contractor building a two-story medical center in Douglas, Georgia. During a 1997 inspection, OSHA found that a scaffold used by employees of subcontractor CPD Plastering was not fully planked, lacked cross-bracing, guardrails, and safe access, and had not been…

September 28, 2000 ·OSHRC
Citations affirmed
COMM

David Weekley Homes

General contractor citation vacated for insufficient proof and lack of knowledge

David Weekley Homes was the general contractor for residential construction at the Horizon Pointe development in Colorado. OSHA cited Weekley for nine conditions grouped into six willful items involving its safety program, hard hats, scaffold support, fall protection, guardrails, training, and…

September 28, 2000 ·OSHRC
Citations vacated
COMM

American Federation of Government Employees, Local 1904 (Union) and U.S. Department of the Army, Army Communications- Electronics, Command and Fort Monmouth, Fort Monmouth, New Jersey (Agency)

AFGE Local 1904 and Fort Monmouth (FLRA 0-NG-2512-001): removable vehicle decal proposal rejected

The Army required permanent windshield decals to identify vehicles authorized to enter and park at Fort Monmouth. The union proposed removable decals, citing employee safety away from the installation and the base's open access. The Authority found a reasonable link between permanent decals and the…

September 28, 2000 ·FLRA
Upheld
COMM

U.S. Department of Defense, Education Activity, Arlington, Virginia (Agency) and Federal Education Association (Union)

Defense Education Activity and Federal Education Association (FLRA 0-AR-3275): Guantanamo teacher backpay and interest upheld

Twenty-four teachers reassigned to reopened Guantanamo Bay schools experienced payroll problems involving salary, allowances, and other payments. An arbitrator found contractual violations and ordered unpaid principal and interest for payments delayed beyond thirty days. The Authority upheld the…

September 28, 2000 ·FLRA
Upheld
COMM

American Federation of Government, Employees, Local 2608 (Union) and Social Security Administration, San Juan Teleservice Center, San Juan, Puerto Rico (Agency)

SSA San Juan Teleservice Center and AFGE Local 2608 (FLRA 0-AR-3264): emergency-closing remedy returned for reconsideration

SSA offered employees annual leave or work at nearby offices during an emergency building closure and a separate computer-installation closure. The arbitrator found a violation for the emergency closure and awarded leave restoration and compensatory time in the form of credit hours. The Authority…

September 28, 2000 ·FLRA
Remanded
COMM

U.S. Department of the Army, 10TH Mountain Division, (Light Infantry) and Fort Drum, Fort Drum, New York (Agency) and National Association of Government Employees, Local R2-61 (Union)

Army Fort Drum and NAGE Local R2-61 (FLRA 0-AR-3194): danger pay excluded from overtime base

A wage-system maintenance work leader deployed to Bosnia received danger pay during regular hours and sought to include it in the rate used to calculate overtime and premium pay. The arbitrator ordered additional compensation based on agency guidance, promises, and his treatment of danger pay as an…

September 28, 2000 ·FLRA
Set aside
COMM

Lavelle Construction

Default dismissal reversed and remanded for a hearing

Lavelle Construction is a small contractor that appeared before the Commission without a lawyer. After an OSHA inspection of its worksite in Ashland, Massachusetts, the agency issued serious and repeat citations with penalties totaling $7,800. Lavelle filed a timely notice of contest but never…

September 27, 2000 ·OSHRC
Remanded
COMM

Southwestern Bell Telephone Company

Trench inspection and cave-in protection violations affirmed

Southwestern Bell Telephone had two technicians repairing telephone lines in an unshored trench about six feet deep with nearly vertical sides in Alton, Texas, in 1998. An OSHA compliance officer driving by stopped and inspected. The soil was Type B, which requires sloping or another protective…

September 27, 2000 ·OSHRC
Citations affirmed
COMM

Manganas Painting Co.

Commission affirms bridge fall violations and raises repeated-violation penalties

Manganas Painting was sandblasting and repainting the Jeremiah Morrow Bridge near Cincinnati, Ohio. OSHA cited the company after employees used an unguarded painter's pick and clipped safety-belt lanyards to beam openings in a way that could let the hooks disengage. The Commission held that the…

September 27, 2000 ·OSHRC
Modified
COMM

U.S. Department of Defense, Education Activity, Arlington, Virginia (Agency) and Federal Education Association (Union)

Defense Education Activity and Federal Education Association (FLRA 0-AR-3308): delayed post allowance interest upheld

A teacher in Germany received reduced post allowances and later recovered $3,365.61 after filing a grievance. The arbitrator found a violation of the agreement's payment requirements and awarded interest on the delayed allowance. The Authority upheld the award under the Back Pay Act because…

September 27, 2000 ·FLRA
Upheld
COMM

U.S. Department of Defense, Education Activity, Arlington, Virginia (Agency) and Federal Education Association (Union)

Defense Education Activity and Federal Education Association (FLRA 0-AR-3273): delayed housing allowance interest upheld

A teacher did not receive two living-quarters allowance payments when due, despite the agency acknowledging the entitlement. The agency later paid the principal in installments but no interest. The arbitrator denied any additional principal claim and found that willful noncompliance with statutory…

September 27, 2000 ·FLRA
Upheld
COMM

U.S. Department of Defense, Education Activity, Arlington, Virginia (Agency) and Federal Education Association (Union)

Defense Education Activity and Federal Education Association (FLRA 0-AR-3230): delayed education-based pay change interest upheld

A teacher qualified for a higher salary after completing additional graduate credits, but processing problems delayed correct payment. She eventually received $25,599.77 in principal without interest. The arbitrator found that the mandatory pay change was delayed in violation of law, regulation…

September 27, 2000 ·FLRA
Upheld
COMM

U.S. Department of Defense, Education Activity, Germany Region, (Agency) and Federal Education Association, (Union) and

Defense Education Activity Germany Region and Federal Education Association (FLRA 0-AR-3206): pay increase and post allowance interest upheld

The agency misplaced a teacher's transcripts, delayed her earned salary increase, and incorrectly stopped her post allowance. Partial payments still left shortages and no interest. The arbitrator found violations and ordered backpay with interest under the established calculation formula. The…

September 27, 2000 ·FLRA
Upheld
COMM

U.S. Department of Defense, Education Activity, Arlington, Virginia (Agency) and Federal Education Association (Union)

Defense Education Activity and Federal Education Association (FLRA 0-AR-3175): twelve employee payment grievances support interest

An arbitrator resolved twelve employee grievances over delayed pay and allowances, including interest the agency refused to pay. The underlying entitlements were not disputed. The Authority upheld the interest remedy because the arbitrator found violations of contractual timely-payment duties that…

September 27, 2000 ·FLRA
Upheld
COMM

United States Immigration and Naturalization Service, Washington, D.C. (Respondent) and National Border Patrol Council, American Federation of Government Employees, AFL-CIO (Charging Party/Union)

INS and National Border Patrol Council (FLRA SF-CA-30165-001): Air Operations Manual complaint dismissed

The Immigration and Naturalization Service implemented an Air Operations Manual while the union's request for assistance was pending before the Federal Service Impasses Panel. On remand, the parties stipulated that the Panel had never directed the agency to maintain existing conditions. The…

September 26, 2000 ·FLRA
Upheld
COMM

U.S. Department of Veterans Affairs (Respondent) and American Federation of Government Employees, Local 1687, AFL-CIO (Charging Party/Union)

Veterans Affairs and AFGE Local 1687 (FLRA CH-CA-80325): steward questioning and settlement offer violated protected rights

A supervisor filed an EEO complaint after a union steward challenged a proposed employee admonishment. The agency required the steward to disclose communications received while representing the employee and offered a settlement that would restrict his protected representation activity. The…

September 26, 2000 ·FLRA
Set aside
COMM

U.S. Department of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio (Respondent) and International Association of Firefighters, Local F-88 (Charging Party) and U.S. Department of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio Respondent and International Association of Firefighters, Local F-88 Charging Party

Wright-Patterson Air Force Base and Firefighters Local F-88 (FLRA CH-CA-70577): smoking change required bargaining

The Air Force ended the practice of permitting smoking inside fire stations at Wright-Patterson Air Force Base without bargaining with the firefighters' union. On remand, the ALJ found that the union had made a valid oral bargaining request and that a written request would have been futile because…

September 26, 2000 ·FLRA
Modified
COMM

U.S. Department of Labor, Washington, D.C. (Agency) and American Federation of Government Employees, Local 12 (Union)

Department of Labor and AFGE Local 12 (FLRA 0-AR-3347): contract-interpretation exception denied

The Department of Labor challenged Arbitrator Marilyn S. Ermer's award. The Authority found no defect under the standards for reviewing whether an award drew its essence from the collective bargaining agreement. It denied the exception after considering the record and precedent. The brief decision…

September 26, 2000 ·FLRA
Upheld
COMM

National Air Traffic Controllers Association (Union) and U.S. Department of Transportation, Federal Aviation Administration, Dallas, Texas (Agency)

NATCA and FAA Dallas (FLRA 0-AR-3302): recognition-award grievance excluded by negotiated program

About 170 air traffic controllers sought quality step increases or time-off awards for implementing the Dallas-Fort Worth Metroplex airspace project. Facility managers recommended the awards, but the authorized division manager did not approve them. The arbitrator found that the negotiated…

September 26, 2000 ·FLRA
Upheld
COMM

U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Center, Distribution Depot Red River, Texarkana, Texas (Agency) and National Association of Government Employees, Local R14-52 (Union)

Defense Distribution Depot Red River and NAGE Local R14-52 (FLRA 0-AR-3276): temporary-duty rotation remedy upheld

A heavy mobile equipment mechanic was passed over for a temporary-duty assignment to Denmark despite a contract requiring equitable rotation among qualified employees. The agency relied on conduct during an earlier assignment, but the arbitrator found that it had not established a disqualifying…

September 26, 2000 ·FLRA
Upheld
COMM

National Federation of Federal Employees, Forest Service Council, Local 1771 (Union) and U.S. Department of Agriculture, Forest Service, Shasta Trinity National Forest (Agency)

NFFE Local 1771 and Shasta Trinity National Forest (FLRA 0-AR-3262): conditional promotion and reduced attorney fees upheld

A GS-7 employee performed GS-9 duties and sought an immediate permanent promotion. The arbitrator ordered continued higher-rate backpay and allowed management 120 days to eliminate or redistribute those duties before a noncompetitive promotion became required. He also limited attorney fees to 25…

September 26, 2000 ·FLRA
Upheld
COMM

U.S. Department of Defense, Education Activity, Arlington, Virginia (Agency) and Federal Education Association (Union)

Defense Education Activity and Federal Education Association (FLRA 0-AR-3151): interest on prior awards and settlements upheld

The union sought interest on employee payments required by three earlier arbitration awards and four settlement agreements after payroll consolidation caused delays. Arbitrator Robert Bennett Lubic held that the Back Pay Act covered the payments and required interest. The Authority denied the…

September 26, 2000 ·FLRA
Upheld
ALJ

The Haskell Company

Scaffold items affirmed for hazards exposing its own employee

The Haskell Company was the general contractor expanding a pilot training center in Savannah, Georgia. OSHA found Haskell's employee working 12 feet above the ground on an exterior tubular-frame scaffold with wide gaps in the planking, missing guardrails, and no access ladder. The superintendent…

September 25, 2000 ·Ken S. Welsch ·OSHRC
Citations affirmed
ALJ

General Glass & Window, Inc.

All citations vacated after a glazier's fatal crushing

General Glass & Window is a Florida glass installation (glazing) company. In February 1999 an experienced glazier, working alone in the bed of a flatbed truck, was fatally injured when a stack of glass panes tilted and fell on him as he unloaded them at a West Palm Beach work site. OSHA…

September 25, 2000 ·G. Marvin Bober ·OSHRC
Citations vacated
COMM

A. W. Ross, Inc.

Late notice of contest, Rule 60(b) relief denied

A.W. Ross, Inc. is a small New Jersey company run by its president, Alexander Ross. OSHA inspected its Passaic facility in March 1999 and cited it for four serious violations with a proposed penalty of $2,550. Mr. Ross glanced at the citation, noticed only the abatement date, and assumed no penalty…

September 25, 2000 ·OSHRC
Procedural
ALJ

Wolkow Braker Roofing Corp.

Attorney fees awarded under EAJA for an excessive penalty demand

Wolkow Braker Roofing Corp. is a small roofing company that was cited after two OSHA inspections of the same worksite in 1997, with combined proposed penalties of $61,100, including a willful item carrying $56,000. After a consolidated trial, Administrative Law Judge Robert A. Yetman had vacated…

September 25, 2000 ·Robert A. Yetman ·OSHRC
Procedural
ALJ

Summit Contractors, Inc.

Stair handrail item vacated, fire-extinguisher item affirmed without penalty

Summit Contractors was the general contractor building a two-story apartment complex in Guymon, Oklahoma. OSHA cited a stairway that lacked a handrail and the absence of fire extinguishers within the building. The judge found the handrail requirement infeasible during the narrow stage when workers…

September 25, 2000 ·Nancy J. Spies ·OSHRC
Mixed result
ALJ

Thiro USA, Inc.

Utility-pole training and fall-protection violations affirmed

Thiro USA is an electrical utility construction company. During a November 1999 inspection at a utility-pole worksite in Everett, Massachusetts, an OSHA compliance officer saw two Thiro employees working from the elevated end of a derrick truck boom, at least 15 feet up, without fall protection…

September 25, 2000 ·Ann Z. Cook ·OSHRC
Citations affirmed
COMM

American Federation of Government Employees, Local 225 (Union) and U.S. Department of the Army, Armament Research, Development, and Engineering Center, Picatinny Arsenal, New Jersey (Agency)

AFGE Local 225 and Picatinny Arsenal (FLRA 0-NG-2515): fixed performance-rating formulas outside bargaining duty

The Army proposed higher thresholds for its top performance ratings, and the union proposed keeping the existing formula or restoring the earlier system. The Authority found both proposals outside the duty to bargain because they would fix the performance levels needed for particular ratings and…

September 25, 2000 ·FLRA
Upheld
COMM

General Services Administration, Region 9, Los Angeles, California (Agency) and American Federation of Government Employees, Council 236 (Union)

GSA Region 9 and AFGE Council 236 (FLRA 0-AR-3292): formal-meeting representation award upheld

GSA invited a local union representative to a formal meeting through the same invitation sent to other employees. Arbitrator Barbara Bridgewater found that the agency had not honored the union's contractual right to choose who would represent it and ordered compliance with the agreement. The…

September 25, 2000 ·FLRA
Upheld
ALJ

Douglas R. Rushford Trucking

Remand penalty set at $4,000

Douglas R. Rushford Trucking operated the Seymour Road Pit in New York, where an employee died after a truck wheel rim exploded during tire inflation without a stand-off device. Judge Gary Melick reconsidered the civil penalty on remand and reviewed the statutory penalty criteria, including the…

September 22, 2000 ·Gary Melick ·FMSHRC
Modified
ALJ

Durbin Coal, Inc.

Motion to compel denied after in-camera review

Durbin Coal asked the judge to compel production of witness statements and a memorandum that the Secretary had submitted for in-camera review. The judge found that the materials did not contain information so closely tied to the critical events that Durbin had a substantial need for them, and that…

September 22, 2000 ·Michael E. Zielinski ·FMSHRC
Procedural
COMM

Association of Civilian Technicians, Montana Air Chapter No. 29 (Union) and U.S. Department of Defense, National Guard Bureau, Montana National Guard, Helena, Montana (Agency)

Civilian Technicians Montana Air Chapter 29 and Montana National Guard (FLRA 0-NG-2527): retention-register proposal negotiable

The union proposed ranking technicians for a reduction in force by tenure group and length of service augmented by performance credit. The National Guard argued that the proposal conflicted with its regulation, which gave performance priority and used seniority as a tie breaker. The Authority…

September 22, 2000 ·FLRA
Set aside
COMM

American Federation of Government Employees, Local 31 (Union) and U.S. Department of Veterans Affairs, Louis Stokes Medical Center, Nursing Home Care Unit, Brecksville, Ohio (Agency)

AFGE Local 31 and Brecksville VA Nursing Home Care Unit (FLRA 0-AR-3333): arbitration exceptions denied

AFGE Local 31 challenged Arbitrator Glen M. Bendixsen's award involving the VA Nursing Home Care Unit in Brecksville, Ohio. The Authority denied the exceptions after reviewing the record and precedent on procedural arbitrability and fair hearings. A party cannot directly challenge an arbitrator's…

September 22, 2000 ·FLRA
Upheld
COMM

U.S. Department of Agriculture, Farm Service Agency, Oklahoma State Office, Stillwater, Oklahoma (Agency) and American Federation of Government Employees, Local 3354 (Union)

Farm Service Agency Oklahoma and AFGE Local 3354 (FLRA 0-AR-3295): outstanding appraisal restored

A reviewing official reduced an employee's overall appraisal from outstanding to superior over her supervisor's objection, citing consistency across the district. Arbitrator Don J. Harr found that the lower rating did not reflect her actual performance and ordered restoration of the outstanding…

September 22, 2000 ·FLRA
Upheld
ALJ

Harney Rock & Paving Co.

Eight mobile-equipment citations resolved with $1,904 penalty

Harney Rock & Paving Co. operated a crusher in Oregon. MSHA issued eight citations involving backing alarms and observers, parking brakes, elevated walkways, access, berm height, mobile-equipment warning devices, and a dozer operator's seat belt. Judge August F. Cetti affirmed the violations and…

September 21, 2000 ·August F. Cetti ·FMSHRC
Modified
COMM

Ormet Primary Aluminum Corp., Hannibal Reduction Division

Commission remands a settlement approval to let the ALJ weigh the union's objections

Ormet Primary Aluminum's Hannibal Reduction Division faced a five-item serious OSHA citation. Ormet and the Secretary of Labor signed a settlement that affirmed three items with penalties and withdrew the other two. The steelworkers union, which had elected party status, refused to sign and…

September 21, 2000 ·OSHRC
Remanded
COMM

American Federation of Government Employees, Local 2004 (Union) and U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Depot, Susequehana Pennsylvania, New Cumberland, Pennsylvania (Agency)

AFGE Local 2004 and Defense Distribution Depot (FLRA 0-NG-2545): reduction-in-force proposals dismissed

The union proposed achieving a 461-position reduction through attrition and voluntary incentives by fiscal year 2005, transferring a call center to reduce separations, and barring personnel moves from another depot site. The Federal Service Impasses Panel had already ordered a staffing plan…

September 21, 2000 ·FLRA
Upheld
COMM

Antilles Consolidated Education Association (Union) and U.S. Department of Defense, Education Activity, Antilles Consolidated School System, Fort Buchanan, Puerto Rico (Agency)

Antilles Education Association and Defense Education Activity (FLRA 0-NG-2518): dental and optical contribution proposal negotiable

The union proposed increasing employer contributions to its dental and optical insurance plans and extending coverage to certain longer-term temporary employees. The agency argued that federal law already specified the benefits and excluded them from bargaining. The Authority rejected that…

September 21, 2000 ·FLRA
Set aside
COMM

Tidewater Virginia Federal Employees Metal Trades Council (Union) and U.S. Department of the Navy, Navy Public Works Center, Norfolk, Virginia (Agency)

Tidewater Metal Trades Council and Navy Norfolk (FLRA 0-AR-3344): procedural-arbitrability ruling upheld

The union challenged Arbitrator Stanley H. Sergent, Jr.'s award involving the Navy Public Works Center in Norfolk. The Authority denied the exceptions because they did not establish a permissible basis for overturning the arbitrator's procedural-arbitrability determination. That ruling…

September 21, 2000 ·FLRA
Upheld
COMM

National Federation of Federal Employees, Local 2030 (Union) and U.S. Department of the Interior, Bureau of Land Management, Idaho Falls District Office, Idaho Falls, Idaho (Agency)

NFFE Local 2030 and BLM Idaho Falls (FLRA 0-AR-3224): career-ladder backpay and split costs upheld

A fire dispatcher met the requirements for a career-ladder promotion, but his supervisor failed to initiate it because she thought he already held the higher grade. Arbitrator Harold G. Wren ordered a retroactive GS-6 promotion effective April 28, 1998, with backpay and benefits, and split…

September 21, 2000 ·FLRA
Upheld
COMM

Rag Cumberland Resources Corporation

Section 104(d)(2) order reinstated

RAG Cumberland Resources operated the underground Cumberland bituminous coal mine near Waynesburg, Pennsylvania. MSHA issued a section 104(d)(1) order and later a section 104(d)(2) withdrawal order after a roof-control violation. The Commission considered whether inspectors' repeated travel through…

September 19, 2000 ·FMSHRC
Citations affirmed
COMM

Social Security Administration, Albuquerque, New Mexico (Respondent) and American Federation of Government Employees, Local 4041 (Charging Party)

SSA Albuquerque and AFGE Local 4041 (FLRA DA-CA-90509, DA-CA-90515): investigatory representation violation upheld

An SSA employee repeatedly requested union representation before supervisors questioned her about a disagreement over handling a customer call. The Authority upheld the ALJ's finding that the questioning was an investigatory examination and that she reasonably feared possible discipline. A promise…

September 19, 2000 ·FLRA
Upheld
COMM

CMC Electric Inc.

Penalties cut to $2,250 and $2,800 on remand from the Sixth Circuit

This is the Commission's second decision in the CMC Electric case. In 1999 the Commission affirmed several citation items against the company. CMC appealed, and the Sixth Circuit affirmed in part, modified Serious Citation 1, Item 2(a), vacated Serious Citation 1, Item 4(c), and sent the case back…

September 18, 2000 ·OSHRC
Modified
ALJ

Eastern Associated Coal Corp.

Motion withdrawal noted and record restored

Eastern Associated Coal Corp. withdrew its motion to stay economic reinstatement in a temporary reinstatement proceeding involving Gary Dean Munson. The judge found that the withdrawal made the jurisdictional dispute unnecessary to resolve and treated the motion as effectively withdrawn. The record…

September 15, 2000 ·Michael E. Zielinski ·FMSHRC
Procedural
ALJ

Durbin Coal, Inc.

Discovery motion partly granted and denied

The Secretary, acting for Michael Jenkins and Michael Mahon, asked Judge Michael E. Zielinski to evaluate Durbin Coal's responses to requests for admissions and to compel answers to interrogatories in a discrimination case. The judge denied the motion as to 12 specified admission requests and…

September 15, 2000 ·Michael E. Zielinski ·FMSHRC
Procedural
COMM

Nolichuckey Sand Company, Inc.

Judge's conveyor violation determinations vacated and remanded

Nolichuckey Sand Company operated a sand and gravel pit in Greenville, Tennessee, where miners used platforms beside conveyor belts for inspections and maintenance. MSHA cited six conveyors because they lacked emergency stop cords or railings, and the judge affirmed all six citations under 30…

September 15, 2000 ·FMSHRC
Remanded
COMM

Tennessee Valley Authority

In re Tennessee Valley Authority (EAB CAA Docket No. 00-6): compliance order partly sustained and partly vacated

The Tennessee Valley Authority operates coal-fired power plants, and EPA alleged that changes at 14 generating projects required preconstruction permits under the Clean Air Act. The Board held that every project was a physical change and that TVA did not prove the projects qualified for the routine…

September 15, 2000 ·EPA EAB
Mixed result
ALJ

Joseph J. Magnolia, Inc.

Willful trench citation vacated, backhoe-bucket general duty violation affirmed

Joseph J. Magnolia, Inc. is a Washington, D.C. area utility contractor that was excavating and installing sewer lines during a hospital expansion. After an OSHA inspection it was cited for one willful and two serious violations. Administrative Law Judge Michael H. Schoenfeld reached a split result…

September 15, 2000 ·Michael H. Schoenfeld ·OSHRC
Mixed result
COMM

U.S. Department of Veterans Affairs, Veterans Integrated Service, Network 13 (Agency) and American Federation of Government Employees, Local 390 (Union)

Veterans Integrated Service Network 13 and AFGE Local 390 (FLRA 0-AR-3272): nonselection remedy upheld

After a reorganization, the VA did not select a qualified employee for any of several information-resources positions. Arbitrator Robert J. Mueller found that the agency violated hiring procedures and contractual protections for fair treatment and against reprisal, and ordered a retroactive GS-12…

September 15, 2000 ·FLRA
Upheld
COMM

Fort Mcclellan Education Association (Union) and U.S. Department of Defense, Fort Mcclellan Schools, Fort Mcclellan, Alabama (Agency)

Fort McClellan Education Association and Schools (FLRA 0-AR-3267): discounted attorney-fee rate upheld

After obtaining longevity backpay, the union requested attorney fees at $250 per hour. Arbitrator Cary J. Williams awarded fees at $200 per hour, and the union challenged that reduction. The Authority upheld the award because the retainer agreement actually charged the union $200, making that rate…

September 15, 2000 ·FLRA
Upheld
ALJ

Alan Lee Good, an individual doing business as Good Construction

Mixed citation ruling and listed penalties

Good Construction operated a portable crusher at a Washington quarry. Judge Gary Melick found violations involving unguarded moving machine parts, an inoperative truck parking brake, and missing handrails. He treated the jaw-crusher flywheel violation as significant and substantial, but found that…

September 13, 2000 ·Gary Melick ·FMSHRC
Mixed result
COMM

Sultan Chemists, Inc.

In re Sultan Chemists, Inc. (EAB FIFRA Appeal No. 99-7): 89 violations affirmed and $175,000 penalty upheld

Sultan Chemists manufactured and distributed dental products and sold four unregistered antimicrobial pesticide products. EPA alleged 89 violations of FIFRA section 12(a)(1)(A), and the Environmental Appeals Board considered whether a distributorship agreement supplied a valid guaranty covering…

September 13, 2000 ·EPA EAB
Affirmed
COMM

U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Center, Defense Distribution Depot Red River, Texarkana, Texas (Agency) and National Association of Government Employees, Local R14-52 (Union)

Defense Distribution Depot Red River and NAGE Local R14-52 (FLRA 0-AR-3279): temporary-promotion selection rerun upheld

The agency temporarily selected a motor vehicle operator leader who lacked a license required for the assignment. Arbitrator Donald P. Goodman found a contract violation and ordered the selection rerun using the original criteria, excluding the unqualified selectee and a candidate who had declined…

September 13, 2000 ·FLRA
Upheld

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.