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

Pepperell Associates

In re Pepperell Associates (EAB CWA Appeal Nos. 99-1 and 99-2): oil-spill liability and penalty increased

Pepperell Associates operated a facility in Lewiston, Maine, where an October 1996 oil spill discharged several hundred gallons into Gully Brook and the Androscoggin River. EPA alleged failures to maintain a Spill Prevention Control and Countermeasure Plan, failure to timely amend and implement a…

May 10, 2000 ·EPA EAB
Mixed result
COMM

David L. Coffey v. Marine Terminals Corporation and Majestic Insurance Company

Coffey v. Marine Terminals (BRB 99-0864): hearing-loss claim denied

Longshoreman David Coffey claimed that noise at waterfront jobs caused his hearing loss. The judge found that he qualified for the statutory presumption connecting the condition to work, but that the employer rebutted it with medical evidence. On appeal, Coffey challenged the rebuttal and the…

May 10, 2000 ·BRB
Affirmed
COMM

Charles Pukas v. Schuylkill Contracting Company

Pukas v. Schuylkill Contracting (BRB 99-0786): Black lung modification request sent back for hearing

Charles Pukas sought to reopen a denied black lung claim based on a change in conditions or a factual mistake. After the district director proposed denying modification, Pukas asked for a formal hearing. The judge refused the hearing and denied benefits on the written record. The Board held that a…

May 10, 2000 ·BRB
Remanded
COMM

U.S. Department of the Treasury, Internal Revenue Service, Washington, D.C., (Agency) and National Treasury Employees Union, (Union)

IRS and NTEU (FLRA 0-AR-3172): contractual bargaining election enforced

Arbitrator Roger P. Kaplan found that the IRS elected in its 1994 partnership agreement to bargain over permissive subjects under section 7106(b)(1). He held that the contractual election required participation in impasse-resolution procedures. The Authority denied the agency’s exceptions because…

May 10, 2000 ·FLRA
Upheld
COMM

Arch of Illinois

Reconsideration denied as untimely

Gary D. Morgan asked the Commission to reconsider its denial of discretionary review and requested scientific analysis of test results in his discrimination case against Arch of Illinois. The Commission denied reconsideration because the motion was filed after the 10-day deadline in Commission…

May 9, 2000 ·FMSHRC
Procedural
COMM

In re S-V-, Respondent

CAT protection required official acquiescence to torture

The Board reviewed a lawful permanent resident's motion to reopen so he could seek withholding of removal and protection under Article 3 of the Convention Against Torture. The Board held that his robbery conviction was a particularly serious crime that barred withholding of removal, and that his…

May 9, 2000 ·BIA
Procedural
COMM

James B. Plourde v. Bath Iron Works Corporation and Birmingham Fire Insurance Company

Plourde v. Bath Iron Works (BRB 99-836): federal disability claim returned to the judge

James Plourde sought Longshore Act disability benefits after a wrist and elbow injury while working for Bath Iron Works. A Maine workers' compensation proceeding had found he retained some ability to work, and the federal judge treated that finding as barring his Longshore claim. The Board held…

May 9, 2000 ·BRB
Remanded
ALJ

David Morales v. Asarco Incorporated

Discrimination complaint dismissed, later vacated on review

David Morales alleged that Asarco Incorporated terminated him in retaliation for reporting fumes in his haul truck cab to MSHA. Judge Richard W. Manning found that Morales engaged in protected activity but did not prove that his discharge was motivated by that complaint. The judge concluded that…

May 8, 2000 ·Richard W. Manning ·FMSHRC
Other
ALJ

Delta T Construction Co., Inc.

Roof-cover and training-record violations affirmed

Delta T Construction was an insulation contractor working on a cold-storage warehouse roof. A temporary employee removed an unsecured roof-hole cover while collecting scrap, stepped into the opening, and fell 31 feet in a fatal accident. The judge held that Delta controlled the work environment and…

May 8, 2000 ·Stanley M. Schwartz ·OSHRC
Citations affirmed
ALJ

A. Hansen Masonry, Inc.

Repeat scaffold violation affirmed, forklift item vacated

A. Hansen Masonry performed construction work in San Antonio, Texas. OSHA observed an employee making repeated trips on a twelve-foot scaffold whose southwest corner lacked guardrails, and the employee used no other fall protection. The judge found employer knowledge because the foreman knew the…

May 8, 2000 ·James H. Barkley ·OSHRC
Mixed result
ALJ

John B. Coffman, d/b/a Southeast Industrial Painting

Penalties cut for a small painting contractor who admitted the violations

John B. Coffman ran Southeast Industrial Painting, a small tank painting and renovation business in Florida. OSHA inspected a jobsite in Orange Park, Florida in August 1997 and issued five citations spread across two dockets. Coffman first contested the citations, but the cases were held while a…

May 8, 2000 ·Stephen J. Simko, Jr. ·OSHRC
Modified
COMM

U.S. Securities and Exchange Commission, Washington, D.C. (Agency) and National Treasury Employees Union (Union)

SEC and NTEU (FLRA WA-RP-90086): nationwide bargaining unit may proceed to an election

The Securities and Exchange Commission challenged an election in a proposed nationwide unit sought by NTEU. The Authority upheld the regional director’s finding that employees shared a community of interest and that the unit would promote effective dealings and efficient operations. Central…

May 5, 2000 ·FLRA
Upheld
COMM

U.S. Department of the Navy, Commander, Naval Base, Norfolk, Virginia (Agency) and National Association of Government Employees, Local R4-1, SEIU, AFL-CIO (Union)

Navy Naval Base Norfolk and NAGE Local R4-1 (FLRA WA-RP-80061): unit continuity requires further findings

A Navy reorganization divided employees in an existing Yorktown bargaining unit among several organizational components while leaving their duties, immediate supervisors, and work locations generally unchanged. The agency sought separate units, while the union sought to preserve a single unit under…

May 5, 2000 ·FLRA
Remanded
COMM

National Mediation Board (Agency/Petitioner) and American Federation of Government Employees, AFL-CIO (Union)

National Mediation Board and AFGE (FLRA WA-RP-80049-REC): clerical election duties do not warrant reconsideration

The National Mediation Board asked the Authority to reconsider whether three support employees could join the bargaining unit sought by AFGE. The agency argued that their ballot, correspondence, and information-request duties amounted to administering the Railway Labor Act. The Authority found the…

May 5, 2000 ·FLRA
Procedural
COMM

U.S. Department of Justice, Immigration and Naturalization, Service, Washington, D.C., (Respondent) and American Federation of Government, Employees, National Border, Patrol Council, (Charging Party)

INS and National Border Patrol Council (FLRA WA-CA-80124): search-policy bargaining and restoration ordered

INS implemented a revised body-search policy without responding to the union’s final proposals or bargaining request. The Authority found an unfair labor practice because the agency failed to complete bargaining; it did not need to determine the proposals’ negotiability where the agency had not…

May 5, 2000 ·FLRA
Modified
ALJ

Allied Custom Gypsum, Inc.

Three citations vacated at a small gypsum mine

Allied Custom Gypsum operated a small gypsum mine and crusher plant near Fairview, Oklahoma. MSHA cited the company over a diesel-fuel warning sign, access to the top of a fuel-tank hatch, and guarding around a conveyor head pulley, and sought a $165 penalty. Judge T. Todd Hodgdon found that the…

May 5, 2000 ·T. Todd Hodgdon ·FMSHRC
Citations vacated
COMM

National Association of Government, Employees, Local R14-143, (Union) and U.S. Department of the Interior, Bureau of Reclamation, Yuma Area Office, Yuma, Arizona, (Agency)

NAGE Local R14-143 and Bureau of Reclamation Yuma (FLRA 0-NG-2380): Sunday differential bargaining required

The union proposed a 25-percent pay differential for non-overtime Sunday work. The Authority majority found bargaining preserved under section 704 of the Civil Service Reform Act because the parties negotiated the subject in their 1968 agreement and it had a place in current pay practices. The…

May 5, 2000 ·FLRA
Set aside
COMM

National Association of Government, Employees, Local R5-136 (Union) and U.S. Department of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, South Carolina (Agency)

NAGE Local R5-136 and VA Charleston (FLRA 0-NG-2365): retail pharmacist wage-survey bargaining required

The union proposed including local retail pharmacies alongside hospitals whenever the agency surveyed wages for its hybrid title 38 pharmacists. The Authority ordered bargaining because the proposal specified survey participants without requiring a survey, setting pay, or dictating use of the…

May 5, 2000 ·FLRA
Set aside
COMM

American Federation of Government Employees, Local 1858 (Union) and U.S. Department of the Army, Army Missile Command, Redstone Arsenal, Alabama (Agency)

AFGE Local 1858 and Army Missile Command (FLRA 0-AR-3277-REC): confusing a cure order does not justify reconsideration

AFGE Local 1858 sought reconsideration after its arbitration exceptions were dismissed for failure to correct procedural deficiencies. The union acknowledged receiving the order but said it mistook it for a notice that required no response. The Authority held that this oversight did not establish…

May 5, 2000 ·FLRA
Procedural
COMM

Laborers' International Union of North America, Local 28 (Union) and U.S. Department of Defense, U.S. Army Garrison, Fort Sam Houston, Texas (Agency)

Army Fort Sam Houston and Laborers Local 28 (FLRA 0-AR-3243): temporary-promotion denial upheld

An Army employee at grade WG-8 took over traffic-signal maintenance duties previously assigned to WG-11 electronic mechanics. Arbitrator Kathy L. Eisenmenger denied a requested temporary promotion because the duties themselves were not higher-graded work. The Authority denied all three union…

May 5, 2000 ·FLRA
Upheld
COMM

U.S. Department of the Navy, Supervisor of Shipbuilding Conversion and Repair, Newport News, Va (Agency) and National Association of Government Employees, Local R4-2 (Union)

Navy Shipbuilding Newport News and NAGE Local R4-2 (FLRA 0-AR-3236): selection-rerun award clarification required

Arbitrator Jerome T. Barrett found a production-controller selection process unfair and ordered a new competition with a different panel and removal of the selectee. The Authority rejected the agency’s contract-based arbitrability objection and its reliance on the abolished Federal Personnel…

May 5, 2000 ·FLRA
Remanded
COMM

U.S. Department of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, South Carolina, (Agency) and National Association of Government, Employees, Local R5-136, (Union)

VA Charleston and NAGE Local R5-136 (FLRA 0-AR-3204): temporary-promotion qualifications remanded

Arbitrator Robert G. Williams awarded a wage-grade computer mechanic a retroactive temporary promotion to a GS-12 computer-specialist position with back pay for performing higher-graded duties. The Authority denied the agency’s objections concerning timeliness, contract interpretation, disputed…

May 5, 2000 ·FLRA
Remanded
COMM

National Treasury Employees Union, Chapter 143 (Union) and U.S. Department of the Treasury, U.S. Customs Service, El Paso, Texas (Agency)

NTEU Chapter 143 and Customs El Paso (FLRA 0-AR-3134): a changed shift did not change historical night overtime

Customs inspectors in El Paso sought additional overtime for early-morning work performed in 1992 and 1993. Their union argued that a new work shift changed the night hours used to calculate overtime under the rules then in force. The Authority upheld the arbitrator’s denial because the official…

May 5, 2000 ·FLRA
Upheld
ALJ

Consolidation Coal Company

Roof-support order affirmed on remand with $4,000 penalty

Consolidation Coal operated the Robinson Run No. 95 underground coal mine in West Virginia. MSHA found that the mine lacked the required supply of supplementary roof-support materials and issued a section 104(d)(2) order under 30 C.F.R. § 75.214. After the Commission found the violation resulted…

May 3, 2000 ·Jacqueline R. Bulluck ·FMSHRC
Citations affirmed
COMM

Atlantic States Materials, Inc.

Amended settlement approved in discrimination case

The Secretary filed a discrimination complaint on behalf of Kevin T. Donald against Atlantic States Materials under section 105(c) of the Mine Act. An administrative law judge approved a settlement after the Secretary mistakenly filed a draft motion that Atlantic States' counsel had not reviewed…

May 3, 2000 ·FMSHRC
Settled
COMM

James O’Kelley v. Department of the Army/NAF

O’Kelley v. Department of the Army/NAF (BRB 99-0810): chemical-exposure causation remanded

James O’Kelley worked as a golf course superintendent at Fort Benning and alleged that workplace pesticide exposure worsened his neurological condition. The judge awarded permanent total disability benefits after finding that the Army had not rebutted the presumption connecting the condition to…

May 2, 2000 ·BRB
Remanded
COMM

U.S. Department of the Interior, Washington, D.C. and U.S. Geological Survey, Reston, Virginia (Respondents) and National Federation of Federal Employees, Local 1309 (Charging Party/Union)

Interior, USGS, and NFFE Local 1309 (FLRA WA-CA-30451-REC): midterm-bargaining reconsideration denied

The U.S. Geological Survey asked the Authority to reconsider its ruling that refusing to bargain over a midterm-bargaining proposal was an unfair labor practice. It argued that the Authority had not followed the Supreme Court’s remand instructions. The Authority found no extraordinary circumstances…

April 28, 2000 ·FLRA
Procedural
COMM

L & T Fabrication & Construction, Inc.

EAJA fee application denied

L & T Fabrication & Construction, a small construction contractor working at a Wyoming coal mine, sought $14,809.82 in attorney fees and expenses under the Equal Access to Justice Act. The underlying case involved a falling handrail that permanently paralyzed an employee, and the ALJ reduced MSHA's…

April 28, 2000 ·FMSHRC
Procedural
ALJ

Contractors Sand and Gravel, Inc.

EAJA award set at $99,935.51 on remand

Contractors Sand and Gravel pursued attorney fees and expenses under the Equal Access to Justice Act after the D.C. Circuit held that the Secretary's position in the underlying case was not substantially justified. The Commission reinstated the judge's EAJA award and remanded for calculation of…

April 28, 2000 ·August F. Cetti ·FMSHRC
Settled
ALJ

AIA Environmental

Unsecured-cylinder item affirmed, two items vacated

AIA Environmental performed interior demolition at an office building in Connecticut. OSHA found unsecured oxygen and acetylene cylinders, cited their close placement, and alleged that AIA did not make its written hazard-communication program available upon request. The judge affirmed the…

April 28, 2000 ·Covette Rooney ·OSHRC
Mixed result
COMM

Great Lakes Packaging Corp.

Annual-audiogram violation made willful and penalty doubled

Great Lakes Packaging made cardboard packaging and displays at a Germantown, Wisconsin facility. Its workers' compensation insurer repeatedly warned that measured noise levels triggered OSHA hearing-conservation requirements, including baseline and annual audiograms. Great Lakes gave audiograms at…

April 28, 2000 ·OSHRC
Modified
COMM

National Air Traffic Controllers, Association, Rochester Local (Union) and U.S. Department of Transportation, Federal Aviation Administration, Rochester, New York (Agency)

NATCA Rochester and FAA (FLRA 0-NG-2486): prior agreement does not make supervisory assignments mandatory bargaining

NATCA’s Rochester local proposed continuing a leave process that used supervisors to cover operational air-traffic-control work. The Authority found the disputed proposals properly before it as a negotiability appeal because they sought negotiations over adjustments to the existing agreement. It…

April 28, 2000 ·FLRA
Upheld
COMM

U.S. Department of the Navy, Naval Explosive Ordinance Disposal Technology Division, Indian Head, Maryland (Agency) and American Federation of Government, Employees, Local 1923 (Union)

Navy Indian Head and AFGE Local 1923 (FLRA 0-AR-3199): eight equipment specialists retain overtime and liquidated damages

Eight Navy equipment specialists challenged their exemption from Fair Labor Standards Act overtime after the agency settled similar claims for twenty-one other specialists. An arbitrator ordered nonexempt status, two years of unpaid overtime, and liquidated damages. The Authority upheld the award…

April 28, 2000 ·FLRA
Upheld
COMM

Social Security Administration, Chicago North District Office (Agency) and American Federation of Government Employees, Local 1346 (Union)

SSA Chicago North and AFGE Local 1346 (FLRA 0-AR-3191): meaningful first consideration supports rerunning selections

Social Security employees challenged the filling of temporary adjudication-officer positions. An arbitrator found that the agency had not given bargaining-unit candidates the real and meaningful first consideration required by the agreement before considering outside candidates. The Authority…

April 28, 2000 ·FLRA
Upheld
COMM

U.S. Department of the Treasury, Internal Revenue Service, Oxon Hill, Maryland (Agency) and National Treasury Employees Union, Chapter 65 (Union)

IRS Oxon Hill and NTEU Chapter 65 (FLRA 0-AR-3149): liability upheld, damages narrowed and remanded

An IRS contract administrator obtained an arbitration award granting a retroactive temporary promotion, backpay, and damages after performing higher-graded duties and being removed from a project. The Authority rejected the agency’s challenges to the promotion and discrimination findings. It held…

April 28, 2000 ·FLRA
Mixed result
COMM

Calhar Construction Inc.

Late contest remains dismissed

CalHar Construction employed field construction workers and a four-person administrative staff in Texas. After a fatal accident, OSHA issued two serious citation items with proposed penalties totaling $3,375. An office employee called OSHA because she found the citation confusing, left a message…

April 27, 2000 ·OSHRC
Procedural
COMM

Montgomery Security Doors & Ornamental Iron, Inc.

Late contest relief denied

Montgomery Security Doors & Ornamental Iron was a small ornamental-iron manufacturer and installer in Alabama. OSHA issued five serious citation items with proposed penalties totaling $5,150, but the company mailed its notice of contest nine days after the deadline. The company said its vice…

April 27, 2000 ·OSHRC
Procedural
COMM

National Association of Government Employees, Local R1-100 (Union) and U.S. Department of the Navy, Naval Submarine Support Facility, Groton, Connecticut (Agency)

NAGE Local R1-100 and Navy Groton (FLRA 0-NG-2467): appraisal disclosure negotiable, supervisory assignments outside bargaining

NAGE challenged five performance-appraisal proposals at a Navy submarine support facility. The Authority ordered bargaining over proposals requiring disclosure and explanation of rating standards, interpreting them to preserve management’s ability to choose rating elements and change standards…

April 27, 2000 ·FLRA
Mixed result
COMM

Association of Civilian Technicians, Roughrider Chapter (Union) and U.S. Department of Defense, North Dakota National Guard, Bismark, North Dakota (Agency)

ACT Roughrider Chapter and North Dakota National Guard (FLRA 0-NG-2444): three disapproved provisions restored

The North Dakota National Guard disapproved three negotiated provisions covering civilian attire at third-party proceedings, selection procedures, and grievances over performance standards. The Authority adopted an ALJ’s recommendation and ordered the agency to rescind all three disapprovals. It…

April 27, 2000 ·FLRA
Set aside
COMM

Bremerton Metal Trades Council (Union) and U.S. Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington (Agency)

Bremerton Metal Trades Council and Puget Sound Naval Shipyard (FLRA 0-AR-3278): union’s award challenges denied

The Bremerton Metal Trades Council challenged an arbitration award involving Puget Sound Naval Shipyard. The Authority found no defect on the grounds raised and denied the union’s exceptions. Its short order cites the standards for arbitrator bias, excess of authority, factual error, and…

April 27, 2000 ·FLRA
Upheld
COMM

National Federation of Federal Employees, Local 1023 (Union) and U.S. Department of the Army, Army Corps of Engineers, Norfolk, Virginia (Agency)

NFFE Local 1023 and Army Corps Norfolk (FLRA 0-AR-3266): unsupported arbitration exceptions denied

NFFE Local 1023 challenged an arbitration award involving the Army Corps of Engineers in Norfolk. The Authority found no defect on the grounds raised and denied the union’s exceptions. It cited rules rejecting review based on evidence arising after arbitration and limiting challenges to an award’s…

April 27, 2000 ·FLRA
Upheld
COMM

U.S. Department of the Navy, United States Marine Coprs (Agency) and American Federation of Government Employees, Local 1482 (Union)

Marine Corps and AFGE Local 1482 (FLRA 0-AR-3220): firefighter television-service remedy upheld

The Marine Corps discontinued television service in firefighters’ sleeping quarters despite a memorandum agreeing to provide it. An arbitrator ordered restoration, reimbursement of employees’ expenses, and notice and bargaining before any proposed discontinuance. The agency argued that…

April 27, 2000 ·FLRA
Upheld
ALJ

F&E Erection Company

Constructive discharge found after Commission remand

Bryce Dolan worked for F&E Erection Company on lead-paint removal at an alumina plant. He complained that the crew's respirators and Tyvek suits did not adequately protect workers from lead exposure, and he resigned after F&E offered continued use of the existing equipment and a temporary…

April 25, 2000 ·Jerold Feldman ·FMSHRC
Citations affirmed
COMM

Southern Energy, Inc.

In re Southern Energy, Inc. (EAB PSD Appeal No. 00-2): petition withdrawn and appeal dismissed

Mead Johnson petitioned for review under the federal PSD permit rules in a matter involving Southern Energy, Inc. Mead Johnson later told the Environmental Appeals Board that it had reached a settlement with Southern Energy and asked to withdraw the petition. The Board granted the motion and…

April 24, 2000 ·EPA EAB
Procedural
ALJ

Earnest Yazzie, employed by Agronics, Inc.

Section 110(c) proceedings dismissed

The Secretary brought section 110(c) civil penalty proceedings involving Earnest Yazzie and Leland T. Taylor, employees associated with Agronics, Inc., in two consolidated dockets. After a settlement conference and at the hearings, the Secretary vacated the section 110(c) charges. Judge Gary Melick…

April 24, 2000 ·Gary Melick ·FMSHRC
Procedural
ALJ

Agronics, Inc.

Five-docket settlement approved with $17,000 penalty

Agronics, Inc. faced civil penalty proceedings in five consolidated dockets concerning its Clod Buster Pit No. 1. After a settlement conference and hearings, the Secretary vacated three citations and proposed reducing the penalty to $17,000. Judge Gary Melick found the settlement acceptable under…

April 24, 2000 ·Gary Melick ·FMSHRC
Settled
ALJ

Seven Seventeen HBE Colorado Corporation d/b/a/ Antler's Adam's Mark

Late refund request denied

Seven Seventeen HBE Colorado Corporation operated the Antler's Adam's Mark hotel in Colorado Springs. The company corrected the cited conditions and paid the full $9,000 penalty without filing a timely contest, then later asked for a refund. It argued that it had not operated the hotel at the time…

April 24, 2000 ·Sidney J. Goldstein ·OSHRC
Procedural
ALJ

Justis Supply & Machine Shop

Three citations affirmed at a dragline assembly site

Justis Supply & Machine Shop performed cutting and welding on a dragline being assembled near BHP Minerals' Navajo Mine in New Mexico. Judge Richard W. Manning found that the dedicated dragline site was a mine under the Mine Act and that Justis was an independent contractor performing services…

April 20, 2000 ·Richard W. Manning ·FMSHRC
Citations affirmed
COMM

Domingo Alexander v. Triple A Machine Shop

Alexander v. Triple A Machine Shop (BRB 99-0763 and 99-0763A): asbestos award and settlement credit upheld

Shipyard worker Domingo Alexander developed asbestosis and sought benefits for respiratory impairment. After two earlier Board remands, the judge awarded benefits beginning May 6, 1983, for a 10 percent impairment that later increased to 37.5 percent. He also allowed Triple A Machine Shop a credit…

April 20, 2000 ·BRB
Affirmed
ALJ

Mac Construction

Fall-protection case settled for $1,100

Mac Construction performed construction work in Wisconsin. OSHA cited the company for inadequate jobsite inspections, insufficient safety training, employees working more than 25 feet above a lower surface without fall protection, and employees using aerial lifts without personal fall-arrest…

April 20, 2000 ·Stanley M. Schwartz ·OSHRC
Settled
ALJ

Corna/Kokosing Construction Co., Inc.

Brief open scaffold gate violated fall rule

Corna/Kokosing Construction worked on a middle-school construction project in Ohio. Two employees unloaded materials from a forklift pallet onto a scaffold about 28 feet above the ground. After the pallet was removed, a five-foot gate remained open for several seconds while the employees used…

April 19, 2000 ·Ann Z. Cook ·OSHRC
Citations affirmed
ALJ

American Tower, LLC

Oral disagreement did not preserve contest rights

American Tower had erected a radio tower for the Township of Verona, New Jersey. After an OSHA inspection prompted by an injury complaint, the company received a citation alleging serious violations. Its owner orally disagreed with the citation and later said he believed he had contested it, but no…

April 19, 2000 ·Irving Sommer ·OSHRC
Procedural
ALJ

Boh Brothers Construction Co., L.L.C.

Unbalanced pipe lift violations affirmed

Boh Brothers was a heavy-construction contractor building a power plant in Alabama. A crew lifted six steel pipes weighing about 12,000 pounds in an unbalanced basket hitch, and the foreman approached and tried to guide the suspended load by hand. Pipes shifted, and the load crushed the foreman…

April 17, 2000 ·Stephen J. Simko, Jr. ·OSHRC
Citations affirmed
ALJ

FPC, Inc., and its successors

Unguarded balcony violation affirmed

FPC was the general contractor constructing an apartment complex in Houston. OSHA observed upper-floor balconies without guardrails and an employee clearing trash from a second-floor balcony without other fall protection. FPC disputed that any employee worked near the edge and said trash was…

April 17, 2000 ·Sidney J. Goldstein ·OSHRC
Citations affirmed
ALJ

RNC, Inc.

Companion-case stipulation yields split result

OSHA cited RNC, Inc. after investigating a workplace fatality. RNC and the Secretary stipulated that the outcome of the related Summit Habitats, Inc. case would control RNC's citation. After deciding the companion case, the judge applied that result to RNC. Citation Item 1 was vacated, while Items…

April 17, 2000 ·Sidney J. Goldstein ·OSHRC
Mixed result
COMM

Dumbarton Quarry Associates

Safety-retaliation layoffs upheld

Anthony Saab alleged that Dumbarton Quarry Associates retaliated against him for raising equipment and highwall safety concerns with MSHA by laying him off for one day and then laying him off again when the quarry's water-truck work changed. The Commission held that the operator showed legitimate…

April 14, 2000 ·FMSHRC
Citations affirmed
ALJ

Rosebud Mining Company

Official release contains conflicting orders

Rosebud Mining operated the Josephine No. 3 underground coal mine. MSHA alleged that a panic bar on a mobile bridge carrier required more than 15 pounds of force to deenergize a connected continuous miner, and proposed a $184 penalty after a miner suffered crushing injuries. The first signed…

April 14, 2000 ·David F. Barbour ·FMSHRC
Other
COMM

Dakota Underground, Inc.

Water-accumulation item remanded after court ruling

Dakota Underground performed excavation work in Fargo, North Dakota. The administrative law judge had affirmed willful violations involving trench egress, accumulated water, and cave-in protection, while vacating a competent-person inspection item. The Eighth Circuit affirmed the Commission's final…

April 14, 2000 ·OSHRC
Remanded
COMM

U.S. Department of the Air Force, Seymour Johnson Air Force Base, North Carolina (Agency) and National Association of Government Employees, Local R5-188 (Union)

Seymour Johnson AFB and NAGE Local R5-188 (FLRA 0-AR-3195; 0-AR-3195-001): official-time relief upheld, fees sent to another arbitrator

An Air Force union president was charged five hours of AWOL after declining to return to work during approved representational time. The Authority upheld the arbitrator’s order to remove the AWOL notation and make her whole under the agreement’s official-time protections. It rejected the agency’s…

April 14, 2000 ·FLRA
Remanded
COMM

Glen Turk v. Eastern Shore Railroad Incorporated

Turk v. Eastern Shore Railroad (BRB 99-938): barge-loading rail worker covered

Glen Turk injured his back while working on a float bridge used to move Eastern Shore Railroad's rail cars onto and off barges crossing the Chesapeake Bay. The railroad argued that he was only a railroad worker and that the location and duties fell outside the Longshore Act. The Board held that the…

April 13, 2000 ·BRB
Affirmed

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.