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ARB Says Whistleblowers Can Sue Unions for Retaliation Under AIR 21

Reversing a lower-level judge, the U.S. Department of Labor’s Administrative Review Board (ARB) said that that unions can be held liable for retaliating against whistleblowers under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21).

The decision was a win for former American Airlines worker Robert Mawhinney, who seeks damages from American, the Transportation Workers Union (TWU), and several individuals under the whistleblower protection provision of AIR 21. Mr. Mawhinney says he reported safety violations to management and the federal authorities, then was fired after being “threatened, ignored, abandoned, and subjected to a hostile work environment.”

Mr. Mawhinney contends that TWU and the other parties conspired in his firing.

AIR 21 forbids air carriers , their contractors and subcontractors from retaliating against whistleblowers who provide information about suspected violations of FAA regulations or related laws.

At the lower level, a Labor Department judge held that TWU was not an “air carrier” under AIR 21, and that it couldn’t be held liable as a contractor or subcontractor. The ARB’s three-judge panel, by contrast, said it discerned “no common sense reason for treating the TWU in this case differently from a contractor.”

The lower-level judge also had ruled that individuals can’t be held personally liable under AIR 21. That’s true enough, but the ARB ruled that Mr. Mawhinney wasn’t trying to establish individual liability — rather he sought to hold American and TWU liable for the actions of their employees.

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