USDOL/OALJ Reporter: ARB Decision Caselist -- January 2009

 

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Summary :

[STAA Digest X A 3]
SETTLEMENT AGREEMENT MUST BE SUBMITTED FOR ALJ REVIEW AND APPROVAL

In Bradbury v. Schwan's Food Co. , ARB No. 08-120, ALJ No. 2008-STA-7 (ARB Jan. 29, 2009), the ALJ received a letter informing that the parties had settled the case, and noting that under the agreement the Complainant must have the ALJ's dismissal order before the terms favorable to the Complainant could be applied. The ALJ also received a request from the Complainant for issuance of an Order of Dismissal With Prejudice. The ALJ dismissed under 29 C.F.R. § 1978.111(c), which permits a party to withdraw objections to the OSHA findings. The ALJ's recommended order did not acknowledge that a settlement had been entered into, and did not approve the settlement as required by 29 C.F.R. § 1978.111(c). Thus, on review, the ARB ordered the parties to either submit the settlement for review or show cause why the case should not be remanded for a hearing on the merits. The settlement was thereafter submitted and approved by the ARB.

 

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Summary :

Denial of reconsideration where many of the arguments made in the motion for reconsideration were raised before the Board in the original appeal, and others were not directly part of the ARB's consideration in the Final Decision and Order, and thus were not eligible for reconsideration

 

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Summary :

Because DOL had not yet issued procedural regulations for NTS whistleblower cases, the ALJ referred his decision to the ARB for possible review. The ARB issued an Order directing the parties to state whether review was requested. Since there was no response, the ARB closed the case, noting that the ALJ's decision thus became the Secretary of Labor's final order.

 

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Summary :

FERRY TRANSPORTATION SERVICES CONTRACT FOUND NOT TO BE EXEMPT FROM THE SERVICE CONTRACT ACT

In Alcatraz Cruises LLC , ARB No. 07-024 (ARB Jan. 23, 2009), the Wage-Hour Administrator determined that National Park Service contracts for ferry transportation services to and from Alcatraz Island were concession contracts covered under the SCA, and were not within any of the categories of concession contracts that are specifically exempted from SCA coverage pursuant to 29 C.F.R. § 4.133(b). The Administrator also determined that the contracts were not entitled to an exemption pursuant to the Secretary of Labor's authority under Section 4(b) of the Act and 29 C.F.R. § 4.123. On appeal, the ARB found that the Administrator's determination was reasonable, supported by a preponderance of the evidence and in accordance with the plain language of the Act and its implementing regulation. The ARB declined to pass on the validity of the regulations, and declined to opine on any alleged conflict between the SCA and the National Park Service Concessions Management Improvement Act of 1998

 

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