USDOL/OALJ Reporter: ARB Decision Caselist -- January 2008

 

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Summary :

[STAA Digest II L]
BANKRUPTCY; DISCHARGE BY LIQUIDATION PLAN

Where the Respondent filed for bankruptcy and the Complainant failed to file a proof of claim, the ARB affirmed the ALJ's finding that the bankruptcy court's plan of liquidation discharged any liability the Respondent may have had toward the Complainant on his employee protection complaint under the STAA. Belt v. Consolidated Freightways Corp. , ARB No. 06-069, ALJ No. 2002-STA-32 (ARB Jan. 31, 2008).

 

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Summary :

Approval of settlement agreement.

 

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Summary :

Approval of settlement agreement.

 

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SUBPOENAS; ALJ FOUND NOT TO HAVE ERRED IN REFUSING TO ISSUE SUBPOENAS

In Hafer v. United Airlines, Inc. , ARB No. 06-017, ALJ No. 2005-AIR-8 (ARB Jan. 31, 2008), the Complainant contended that the ARB should "reconsider" the ALJ's ruling denying issuance of subpoenas. A two member panel of the ARB held that the ALJ "did not err by concluding that [the Complainant] was not entitled to the subpoenas he requested." USDOL/OALJ Reporter at 6 (footnote omitted).

 

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[ Editor's note : The ARB referenced in this regard a ruling made by the ALJ in a letter to the Complainant declining to issue requested subpoenas. The ALJ had written:

   Although Congress has authorized Administrative Law Judges to issue subpoenas in various kinds of proceedings, it has not given Administrative Law Judges the authority to issue subpoenas in any type of whistleblower proceeding, including proceedings under the AIR21 statute. In other whistleblower cases, some other Administrative Law Judges have on occasion decided to issue subpoenas based upon the decision of the Administrative Review Board (ARB) in Childers v. North Carolina Power & Light ARB Case 98-77 (2000). However, the ARB's decision in the Childers case is inconsistent with the opinion of the Solicitor of the Department of Labor, who would be responsible for enforcing any such subpoena, and with a decision issued in 2003 by the Federal District Court for the District of Columbia. See Bobreski v. U.S. Environmental Protection Agency , 284 F.Supp.2d 67 (DC DC 2003) As a result, I have concluded that the subpoenas you request would in all likelihood be unenforceable. For that reason, I have further concluded that they should not be issued.

The content of this letter, however, is not recited in the ARB's decision, and it is not entirely clear that the Board was affirming the ALJ's analysis. Childers was an important precedent, and it seems unlikely that the Board would overturn it in this way.]

 

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CONTRIBUTING CAUSE; DELAY IN PAYMENT OF WORKERS� COMPENSATION BENEFITS NOT SHOWN TO BE ATTRIBUTABLE TO AN INTENT TO RETALIATE

In Hafer v. United Airlines, Inc. , ARB No. 06-017, ALJ No. 2005-AIR-8 (ARB Jan. 31, 2008), the ARB found that the Complainant failed to meet his burden of proving that his protected activity was a contributing factor in a delay in the payment of certain workers� compensation payments. The ARB found that substantial evidence supported the ALJ's findings that the delay was not attributable to any intentional efforts by employees of the Respondent (the payments were the responsibility of an independent, third party workers� compensation administrator), that deliberately delaying such payments would have been an illogical way to retaliate because it only would result in increasing the Respondent's liability to the Complainant, and that the delay was likely due to inadvertence and clerical errors.

CLEAR AND CONVINCING BURDEN OF PROOF; NO NEED TO CONSIDER IF THE COMPLAINANT FAILED TO MEET THE CONTRIBUTING CAUSE BURDEN

In an AIR21 case, where the complainant does not prove that the respondent took adverse action in part because of the complainant's protected activity, it is not necessary to proceed to an analysis of whether the respondent could demonstrate by clear and convincing evidence that it would have taken the same unfavorable personnel actions in the absence of any protected behavior. Hafer v. United Airlines, Inc. , ARB No. 06-017, ALJ No. 2005-AIR-8 (ARB Jan. 31, 2008).

 

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Summary :

[STAA Digest IX B 2 b iii]
BACK PAY; LIABILITY FOR BACK PAY ENDS UPON A BONA FIDE OFFER OF REINSTATEMENT, NOT UPON THE COMPLAINANT�S OBTAINING A COMPARABLE JOB

In Hobson v. Combined Transport, Inc. , ARB Nos. 06-016, 06-053, ALJ No. 2005-STA-35 (ARB Jan. 31, 2008), the ALJ erred in awarding back pay from the date of discharge to the date when the Complainant found comparable work. The ARB stated that "[b]ack pay liability ends when the employer makes a bona fide, unconditional offer of reinstatement or, in very limited circumstances, when the employee rejects a bona fide offer, not when the employee obtains comparable employment." USDOL/OALJ Reporter at 5 (footnote omitted). The ARB vacated the ALJ's back pay award, and instead ordered back pay from the date of discharge to the date of a bona fide offer of reinstatement, with a reduction in liability for other earnings, but enhanced by pre-judgment and post-judgment interest.

[STAA Digest II E 4]
DUE PROCESS; PRO SE LITIGANT CANNOT SHIFT THE BURDEN OF LITIGATING HIS CASE TO THE COURT

In Hobson v. Combined Transport, Inc. , ARB Nos. 06-016, 06-053, ALJ No. 2005-STA-35 (ARB Jan. 31, 2008), the Respondent was represented at the ALJ hearing by a recruiting manager, who was not an attorney. On appeal, the Respondent contended that the ALJ erred in failing to inform this representative of the Respondent's burden to prove that the Complainant failed to mitigate damages. The ARB rejected this contention, however, because the ALJ had examined the Complainant about his employment search, and directed the representative to address the issue of damages. The representative, however, asked no questions of the Complainant.

The Respondent also contended that the ALJ erred in not informing the company at the outset of the litigation about essential elements of the case, such as the applicable rules of practice, the fact that the OSHA investigatory findings and preliminary order were not part of the record, the company's burden of proof, and the need to order a transcript. The Respondent contended that this failure denied it due process. The ARB found no merit to this contention, finding that a pro se litigant cannot shift the burden of litigating his case to the courts nor avoid the risk attending the decision to forego expert assistance.

[STAA Digest IX b 1]
COMPENSATORY DAMAGES IS SYNONYMOUS WITH ACTUAL DAMAGES, AND HAS THE PURPOSE OF MAKING THE COMPLAINANT WHOLE FOR HARM CAUSED BY THE RESPONDENT�S UNLAWFUL ACT

In Hobson v. Combined Transport, Inc. , ARB Nos. 06-016, 06-053, ALJ No. 2005-STA-35 (ARB Jan. 31, 2008), the ARB defined "compensatory damages" as follows:

    The STAA does not define "compensatory damages." Black's Law Dictionary defines the term to mean "[d]amages sufficient in amount to indemnify the injured person for the loss suffered." Compensatory damages is synonymous with "actual damages," which is the amount awarded to "compensate for a proven injury or loss; damages that repay actual losses." The purpose of a compensatory damage award is to make the complainant whole for the harm caused by the employer's unlawful act. Put another way, compensatory damages are meant to restore the employee to the same position he would have been in if not discriminated against. Compensatory damages are designed to compensate discriminatees not only for direct pecuniary loss, but also for such harms as impairment of reputation, personal humiliation, and mental anguish and suffering.

USDOL/OALJ Reporter at 7-8 (footnotes omitted).

[STAA Digest IX b 1]
COMPENSATORY DAMAGES; COMPLAINANT�S PURCHASE OF A TRACTOR IN ORDER TO OBTAIN WORK FOUND NOT TO BE A LOSS RESULTING FROM THE RESPONDENT�S UNLAWFUL ACT

In Hobson v. Combined Transport, Inc. , ARB Nos. 06-016, 06-053, ALJ No. 2005-STA-35 (ARB Jan. 31, 2008), the ARB found that the ALJ erred in awarding the Complainant the $20,000 he spent to buy a tractor to become an owner/operator (which was a condition to being able to drive for another freight company following his discharge by the Respondent). The ALJ had reasoned that the Respondent's unlawful discharge had put the Complainant in the position where the tractor purchase was necessary to obtain employment. The ARB found that this was error as a matter of law.

The ARB found that the Complainant had not lost a $20,000 tractor as the result of his discharge. Rather, the ARB found that the Complainant chose to buy the tractor to go to work for the other company, and that awarding him $20,000 for the tractor would not restore the Complainant to the same position he would have had but for the discharge, but instead amounted to a windfall.

[STAA Digest IX b 1]
COMPENSATORY DAMAGES; EMOTIONAL DISTRESS AWARD MAY BE BASED SOLELY ON COMPLAINANT�S CREDIBLE TESTIMONY

In Hobson v. Combined Transport, Inc. , ARB Nos. 06-016, 06-053, ALJ No. 2005-STA-35 (ARB Jan. 31, 2008), the ARB affirmed the ALJ's award of $5,000 in compensatory damages for stress and anxiety which was based solely on the Complainant's testimony and was not supported by medical evidence. The ARB noted that the ALJ had found the testimony credible, that it was unrefuted, and that the ARB has affirmed reasonable emotional distress awards that had been based solely on the employee's testimony.

 

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Summary :

[STAA Digest XI A 1]
WITHDRAWAL OF OBJECTIONS TO OSHA FINDINGS; ARB MUST ISSUE FINAL ORDER

In Hutchins v. TNT Logistics , ARB No. 05-065, ALJ No. 2004-STA-9 (ARB Jan. 31, 2008), the ARB held that it must issue the final order where the complainant requests to withdraw his objections to the Secretary's preliminary findings. In so holding, the panel declined to follow the 1987 holding of the Secretary of Labor in Underwood v. Blue Springs Hatchery , 1987-STA-21 (Sec�y Sept. 23, 1987) -- an Order to Show Cause --stating that an ALJ's order approving a withdrawal becomes the final administrative order in a case. One member of the panel concurred with the approval of the withdrawal, but forcefully argued that the panel did not have the authority to overrule Underwood without the participation of all members of the Board, that the panel had misinterpreted the regulations, and that the ALJ's order approving the withdrawal should have been the final order in the case.

 

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Summary :

The ARB affirmed the ALJ's findings that the Complainant did not engage in protected activity when he complained that he was out of hours when, in fact, he still had adequate driving hours. The ARB also affirmed the ALJ's finding that the Complainant's assertion that he had been too sick to drive was not credible.

 

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DEBARMENT; CULPABLE CONDUCT PREVENTS RELIEF FROM DEBARMENT; CULPABLE CONDUCT MEANS BEYOND NEGLIGENCE, BUT SHORT OF SPECIFIC INTENT

Once a federal service contractor has been found to have violated the SCA, it is debarred for three years unless it can meet a three-part test for relief. The first part of the test involves proving that the conduct in causing or permitting violations of the SCA was not willful, deliberate, of an aggravated nature, or the result of culpable conduct. In W/D Enterprise, Inc. , ARB No. 06-018, ALJ No. 2004-SCA-5 (ARB Jan. 31, 2008), the evidence showed that the Respondents failed to ensure that its pay practices complied with the SCA, and that they had repeatedly violated the wage and fringe benefits provisions by underpaying employees, despite having received Wage and Hour's expert advice in connection with prior violations. The ARB, therefore, held that the Respondents� conduct amounted to culpable conduct within the meaning of 29 C.F.R. § 4.188(b)(3)(i).

The ARB rejected the Respondents� contention that a finding of culpable conduct was legally insufficient without a finding of intentional or reckless misconduct. Rather, the standard is conduct which is beyond negligence, but short of specific intent. The ARB also affirmed the ALJ's finding that even if the Respondents� SCA errors may have been the result of misunderstanding and confusion at first, such was no longer credible after several years of Wage and Hour investigations. The ARB agreed with the ALJ's finding that the Respondents� president had been "negligent, to the point of disinterested as to compliance."

The fact that the Respondent made good on the underpayment does not relieve debarment. Making the underpayments is not the penalty; rather debarment is the penalty.

 

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Summary :

Approval of settlement agreement.

 

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Summary :

[STAA Digest IX A 7 and IX B 2 b xvi]
DISCOVERY SANCTION; AFTER-ACQUIRED EVIDENCE; REFUSAL OF RESPONDENT TO DISCLOSE INFORMANT MAY SUBJECT RESPONDENT TO EVIDENTIARY SANCTION ON MERITS � BUT NOT ON THE QUESTION OF THE REMEDY

In Cefalu v. Roadway Express, Inc. , ARB No. 08-001, ALJ No. 2003-STA-55 (ARB Jan. 30, 2008), the ARB remanded the matter to the presiding ALJ for consideration of whether reinstatement was an appropriate remedy in light of the 7th Circuit's decision in Roadway Express, Inc. v. United States Dep't of Labor , 495 F.3d 477 (7th Cir. 2007). In Roadway , the court had held that the ALJ properly imposed a discovery sanction for the Respondent's refusal to disclose who reported that the Complainant had lied on his employment application about his record of accidents; but that the sanction went to evidentiary matters, and should not have been applied the question of remedy.

 

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Summary :

RECONSIDERATION BY THE ARB; APPLICATION OF FRAP 40

In considering a motion for reconsideration, the ARB looks for guidance to FRAP 40. See Powers v. Pinnacle Airlines, Inc. , ARB No. 06-078, ALJ Nos. 2006-AIR-4 and 5 (ARB Jan. 30, 2008).

RECONSIDERATION BY THE ARB; REHASHING OF PREVIOUSLY REJECTED ARGUMENTS AND IMMATERIAL ALLEGATIONS DO NOT SUPPORT RECONSIDERATION

Reconsideration will be denied by the ARB where the motion for reconsideration is merely a rehashing of arguments already considered and rejected by the Board, and allegations not material to the basis for the Board's Final Decision and Order. See Powers v. Pinnacle Airlines, Inc. , ARB No. 06-078, ALJ Nos. 2006-AIR-4 and 5 (ARB Jan. 30, 2008).

 

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Summary :

PROTECTED ACTIVITY; MERELY PERFORMING SAFETY-RELATED DUTIES, STANDING ALONE, DOES NOT CONSTITUTE PROTECTED ACTIVITY

A maintenance supervisor's carrying out of his required, safety-related duties -- supervising the maintenance of the Respondent's aircraft and reporting, repairing, or deferring the repair of any documented defects -- is not, standing alone, protected activity under AIR21. Rather, to be protected, the employee must provide information to the employer or to the federal government that relates FAA orders, regulations or standards, or other provision of law related to air carrier safety. While laudable, competently and aggressively carrying out duties to ensure safety does not, standing alone, constitute protected activity. Thus, in Sievers v. Alaska Airlines, Inc. , ARB No. 05-109, ALJ No. 2004-AIR-28 (ARB Jan. 30, 2008), the ARB found that the Complainant did not engage in protected activity regarding incidents in which information was not provided to the employer or to a Federal entity, but that he did engage in protected activity when he refused to override a maintenance crew's decision to take a plane out of service because it would have been "wrong" (i.e., it would have violated the FAA rule at 14 C.F.R. § 135.443).

PRETEXT/CONTRIBUTING CAUSE NOT ESTABLISHED MERELY BY TEMPORAL PROXIMITY OR SOME CIRCUMSTANTIAL EVIDENCE; RATHER COMPLAINANT�S BURDEN IS TO SHOW CONTRIBUTING CAUSE BY THE PREPONDERANCE OF THE EVIDENCE

In Sievers v. Alaska Airlines, Inc. , ARB No. 05-109, ALJ No. 2004-AIR-28 (ARB Jan. 30, 2008), the ARB found that the record supported some, but not all, of the ALJ's findings on circumstantial evidence which led the ALJ to find that the Respondent had used time card violations as a pretext to fire the Complainant, a maintenance supervisor, over protected activity, and that the protected activity contributed to the firing. The ARB agreed with the ALJ that the protected activity and the termination occurred closely in time; that the managers were upset when out-of-service delays occurred; that a manager had recommended that another employee who had also been discharged, but not the Complainant, be eligible for rehire; and that the Respondent did not investigate the allegations that the facility's maintenance manager knew about and condoned timecard fraud. However, the ARB found that these findings did not constitute a preponderance of the evidence that the Complainant's protected activity contributed to his firing. Rather, the ARB found that the weight of the evidence demonstrated that the Respondent terminated the Complainant because of timecard fraud. Specifically, the ARB found that the Respondent had a clear, legitimate reason to discipline the Complainant over the time card violations; that employees had been warned about such violations; that the investigation of time card violations and subsequent disciplinary action was not contrived; and that the record demonstrated that managers � though occasionally having passing impatience over delays -- had harbored no animus toward the Complainant when he insisted on safety.

 

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Summary :

RECONSIDERATION BASED ON NEW EVIDENCE; FAILURE TO SHOW THAT THE EVIDENCE COULD NOT HAVE BEEN OBTAINED UPON REASONABLE DILIGENCE PRIOR TO THE ARB�S ORIGINAL RULING

In Amtel Group of Florida, Inc. , ARB No. 07-104, ALJ No. 2004-LCA-6 (ARB Jan. 29, 2008), the Respondent moved for reconsideration based on new evidence. The ARB had earlier found that the Respondent was liable for back wages to an H-1B worker because it had failed to effect a bona fide termination of her employment because the record did not provide evidence that the Respondent had notified the USCIS of the termination and because the Respondent had not paid the worker for her transportation home. After the ARB's decision, the Respondent's immigration counsel provided evidence to the Respondent's counsel before the Board showing that the immigration counsel had, in fact, notified USCIS. The ARB, however, agreed with the worker that the Respondent could have known through reasonable diligence not only of the regulatory notice requirement, but also of the evidence that the notification had been made. The ARB therefore denied reconsideration. The ARB also denied reconsideration because the Respondent conceded that it had not paid for the worker's transportation home.

 

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SETTLEMENT; APPROVAL IN ABSENCE OF TIMELY OBJECTION IN RESPONSE TO SHOW CAUSE ORDER

In Administrator, Wage and Hour Div., USDOL, v. API Accounting & Computer Consulting , ARB No. 07-081, 2006-LCA-26 (ARB Jan. 25, 2008), the Administrator filed a motion for approval of settlement agreement, attaching thereto a signed copy of the agreement and request for entry of a Final Order in accordance with the terms and conditions set forth in the settlement agreement. The Respondent thereafter filed a brief in which it was not clear about whether it agreed to the settlement. The ARB then issued a show cause order, warning that if a response was not timely received, the settlement would be approved. The Respondent did not respond, and the ARB then approved the settlement and dismissed the case.

 

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Summary :

Petitioner withdrew its request for review of modifications to DBA wage decisions because the Administrator had published modifications that satisfied the Petitioner's concerns.

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