USDOL/OALJ Reporter: ARB Decision Caselist - February 2014

TIMELINESS OF AIR21 WHISTLEBLOWER COMPLAINT; THE AIR21 STATUTE DOES NOT REQUIRE AN EMPLOYER TO NOTIFY AN EMPLOYEE OF HER RIGHT TO FILE AN OSHA COMPLAINT

TIMELINESS OF AIR21 WHISTLEBLOWER COMPLAINT; PURSUIT OF A CBA GRIEVANCE FOUND NOT TO TOLL THE LIMITATIONS PERIOD

In Barrett v. Shuttle America , ARB No. 12-075, ALJ No. 2012-AIR-10 (ARB Feb. 28, 2014), the Complainant, a flight attendant, filed her AIR21 complaint outside the 90 day limitations period. The Complainant alleged an unlawful suspension for reporting irregular behavior by a flight captain. The Complainant alleged that her in-flight manager purposely delayed sending a certified copy of the suspension notice so that so could not file her complaint in time. The ARB found that the Complainant had received a definitive and unequivocal notice of the adverse action in ample time to file a timely AIR21 complaint, that the whistleblower provision of AIR 21 does not require that an employer notify an employee of her right to file an OSHA complaint in the context of disciplinary matters, and that even if the manager had procrastinated in sending the letter, there was no evidence that she did so to prevent the Complainant from filing an AIR 21 complaint.

The Complainant also contended that the union caused the late filing of her OSHA complaint by failing to pursue her grievance promptly under the collective-bargaining agreement. Citing Delaware State Coll. v. Ricks , 449 U.S. 250, 258 (1980), the ARB found that the pursuit of a grievance did not toll the limitations period. The ARB stated: "The grievance procedure by its very nature is a remedy for a prior decision, not an opportunity to influence that decision." USDOL/OALJ Reporter at 5-6 (footnote omitted). The ARB found that nothing precluded the Complainant from filing a complaint with OSHA before she filed a grievance or while the grievance was pending.

Accordingly, the ARB agreed with the ALJ that the Complainant "failed to show good cause for her failure to file her AIR 21 complaint within the limitations period or to meet her burden of proof to demonstrate that equitable modification principles should apply." USDOL/OALJ Reporter at 6.

[Nuclear & Environmental Whistleblower Digest IV C 2]
TIMELINESS OF ERA WHISTLEBLOWER COMPLAINT; ERA REGULATIONS REQUIRE A POSTING CONCERNING THE LAW, AND PROVIDE THAT FAILURE TO POST CAN AFFECT THE LIMITATIONS PERIOD FOR FILING AN ERA COMPLAINT

In McGowan v. Bechtel National, Inc. , ARB No. 12-094, ALJ No. 2012-ERA-9 (ARB Feb. 28, 2014), the Complainant filed an ERA whistleblower complaint. Before the ALJ, the Respondent filed a motion to dismiss based on the complaint not having been timely filed. After issuing an order to show cause, the ALJ granted the motion to dismiss. On appeal, the ARB found that the ALJ erred because he failed to address the Complainant's argument that the Respondent failed to post the ERA whistleblower law as required by 29 C.F.R. § 24.102(d)(1) and (2). Section 24.102(d)(1) requires that companies that fall within the scope of the Act post a notice that explains the whistleblower Act and regulations. Section 24.102(d)(2) provides that failure to comply with the posting requirement can affect the limitations period for filing a complaint with OSHA. That section provides:

Where the notice required by paragraph (d)(1) of this section has not been posted, the requirement in 24.103(d)(2) that a complaint be filed with the Assistant Secretary within 180 days of an alleged violation will be inoperative, unless the respondent establishes that the complainant had knowledge of the material provisions of the notice. If it is established that the notice was posted at the employee's place of employment after the alleged retaliatory action occurred or that the complainant later obtained knowledge of the provisions of the notice, the 180-days will ordinarily run from whichever of those dates is relevant.

The ARB thus remanded the case to the ALJ to determine whether the Respondent complied with the posting requirement, and if not, "whether this noncompliance rendered the 180-day requirement for McGowan to file his ERA complaint with OSHA inoperative, or whether McGowan's OSHA complaint is timely based on his �later obtained knowledge of the provisions of the notice.�" USDOL/OALJ Reporter at 4.

In Tablas v. Dunkin Donuts Mid-Atlantic , ARB No. 13-091, ALJ No. 2010-STA-24 (ARB Feb. 28, 2014), a split decision, the ARB found that substantial evidence did not support the ALJ's conclusion that there was clear and convincing evidence that the Respondent would have terminated the Complainant's employment absent any protected activity because the Complainant had failed to wait for repairs before returning to his home. The majority found logical inconsistencies between the ALJs' original decision and her later decision on remand, found under the facts of the case that failure to wait for repairs was legally inseparable from the Complainant's protected refusal to drive, and found unsupportable the ALJ's conclusion that the termination notice articulated that the reason the Complainant was terminated was based on his failure to wait on the repair to his vehicle. One member dissented, finding that substantial evidence supported the ALJ's holding.

LCA COMPLAINT DISMISSED WHERE IT WAS UNTIMELY AS TO THE PROSECUTING PARTY PERSONALLY, THE PROSECUTING PARTY WAS NOT A "COMPETITOR" UNDER THE "AGGRIEVED PARTY" REGULATION AT 20 C.F.R. § 655.806(a)(5), AND THE WAGE AND HOUR DIVISION HAD DECLINED AN INVESTIGATION UNDER THE "CREDIBLE SOURCE" REGULATION AT 20 C.F.R. § 655.807

In Gupta v. Administrator, Wage and Hour Div. , ARB No. 12-050, ALJ No. 2010-LCA-24 (ARB Feb. 27, 2014), the Prosecuting Party filed two complaints in 2009 alleging illegal deductions by the Respondent, Wipro Ltd., to H-1B wages connected to the base salary earned in its H-1B workers' home country. The Wage and Hour Division (WHD) issued a letter finding reasonable cause to investigate the second complaint pursuant to 20 C.F.R. § 655.806(a)(5), which pertains to �aggrieved party� complaints. The ARB affirmed three of the grounds on which the ALJ dismissed the claims: (1) the wage claims were not timely as to the Prosecuting Party, who had not worked for the Respondent as a H-1B worker since 2006; (2) the Prosecuting Party was not an "aggrieved party" for the alleged violations related to the wages of other H-1B workers, and (3) the Prosecuting Party had no basis to appeal the WHD Administrator's having taken no action on the claims under 20 C.F.R. § 655.807. Under 20 C.F.R. § 655.806, the WHD may initiate an investigation of alleged H-1B program violations based on a complaint filed by an aggrieved person or organization, (including competitors). In the instant case, the Prosecuting Party had wanted to set up his own recruitment business when he returned to India, but admitted that the business had not actually been set up at the time the complaints were filed. The ARB affirmed the ALJ's finding that he was not the Respondent's "competitor" and therefore was not adversely affected by the alleged violation, either as an employee or as a competitor. Thus, the ARB affirmed the ALJ's dismissal of the "aggrieved party" complaint. In regard to the Prosecuting Party's complaint as a "credible source" complaint under 20 C.F.R. § 655.807, the ARB affirmed the ALJ's holding that "the discretion to initiate such an investigation lies with the Wage and Hour Administrator and other Labor Department officials. [T]here is no evidence that the Administrator or other Labor Department official exercised such discretion in this case, and the regulations prohibit parties from appealing the Labor Department's exercise or refusal to exercise such discretion. See 20 C.F.R. § 655.807(h)(2)." USDOL/OALJ Reporter at 6.

H-2B DEBARMENT; ONCE OFLC ADMINISTRATOR PROVES THAT A SUBSTANTIAL VIOLATION OCCURRED, DEBARMENT IS MANDATORY; ALJ HAS DISCRETION TO REDUCE LENGTH OF DEBARMENT; REDUCTION OF DEBARMENT AFFIRMED WHERE ADMINISTRATOR ONLY PROVED ONE INSTANCE OF FAILURE TO COOPERATE WITH INVESTIGATION, WHERE EMPLOYER'S FAILURE TO PROVIDE REQUESTED DOCUMENTS WAS EXPLAINED BY THEIR NON-EXISTENCE, AND WHERE RESPONDENT'S POST-INVESTIGATION COMPLIANCE WAS TAKEN INTO CONSIDERATION

In Administrators, WHD and OFLC v. Peter's Fine Greek Food, Inc. , ARB No. 14-003, ALJ Nos. 2011-TNE-2, 2012-PED-1 (ARB Feb. 26, 2014), the ARB affirmed the ALJ's determination that the Respondent should be debarred from participation in the H-2B program for a period of one year. In this case, the 2008 H-2B regulations applied. The Office of Foreign Labor Certification Administrator argued that the ALJ had improperly reduced OFLC's debarment order from two years to one year, and by considering the Respondent's post-investigation compliance. The OFLC Administrator argued that the applicable debarment regulation at 20 C.F.R. § 655.31 (2009) does not expressly include consideration of a violator's current or future compliance, and, focusing on the policy reasons requiring debarment, and contended that the applicable regulations restrict the ALJ's discretion to reduce the length of debarment. The ALJ had held, relying on 20 C.F.R. § 655.31(e)(5)(ii) and 65(h) (2009), that the regulations do not automatically require debarment even if the employer met the conditions of debarment, and therefore she had the discretion to consider the employer's conduct after an investigation occurred.

The ARB found that the Administrator and the ALJ had collapsed two questions into one. The ARB held that the regulations at 20 C.F.R. § 655.31(a)(1) and (2) (2009) mandate debarment once the OFLC Administrator proves that a substantial violation occurred. The ARB disagreed with the ALJ that discretion to debar existed pursuant to 20 C.F.R. § 655.65(h) (2009). The ARB found that this regulation only provides that the Wage and Hour Division Administrator has the discretion to recommend debarment, but no authority to order debarment. Rather, the OFLC Administration has such authority, and is required to debar employers upon finding a 'substantial violation.� 20 C.F.R. § 655.31(a)(1) (2009).

The ARB found, however, that the ALJ had discretion to decrease the duration of the debarment. The ARB noted that the "2008 H-2B rule regulations do not provide guidance but simply provide a range of one to three years," and thus, "the regulations establish one year as the minimum mandatory debarment period but provide no guidance for deciding whether to impose more than one year. 20 C.F.R. §� 655.31(c), 655.65(h) (2009)." USDOL/OALJ Reporter at 4. The ARB found that "other similar departmental regulations may provide meaningful guidance, but the ultimate decision must rest on the reasonable exercise of discretion." Id .

The ARB further found that the ALJ had stated persuasive reasons for reducing the debarment to a one-year period. The OFLC Administrator proved only one of the two alleged substantial violations. The Respondent failed to cooperate with the WHD Administrator's investigation efforts in some instances, but it cooperated in other instances. And although it failed to produce some records, it was only because those records did not exist. The ARB agreed that the absence of records may be a consideration in whether an employer cooperated in an investigation, but cautioned that the reason for their absence must be considered. The ARB also found that the applicable regulations do not prohibit "consideration of a violator's future compliance when determining whether debarment is warranted or the length of debarment." Id . at 4 (footnote omitted). The ARB stated, however, that "such alleged compliance must be considered cautiously where the WHD Administrator had no opportunity to investigate assertions of post-investigation compliance." Id . at 5.

Order approving stipulated dismissal.

[Nuclear and Environmental Digest XI A 2 b ii]
CAUSATION; COMPLAINANT'S EMPLOYMENT FOUND TO HAVE BEEN TERMINATED DUE TO END OF COMPLAINANT'S ELIBILITY FOR EXTENDED ILLNESS STATUS RATHER THAN PROTECTED ACTIVITY; TEMPORAL PROXIMITY FOUND NOT TO BE PERSUASIVE FACTOR WHERE INITIATION OF TERMINATION PROCEEDING PRECEDED PROTECTED ACTIVITY AND WHERE SEVERAL INTERVENING FACTORS DIMINISHED INFERENCE BASED ON THAT TEMPORAL PROXIMITY; CONCURRING MEMBER CLARIFIES HOW INTERVENING EVENTS RELATE TO TEMPORAL PROXIMITY ANALYSIS

In Kuehu v. United Airlines , ARB No. 12-074, ALJ No. 2010-CAA-7 (ARB Feb. 10, 2014), the Complainant was a Reservations Sales and Service Representative who worked in the Respondent's reservation call center in the subbasement of a building within the Honolulu International Airport. The Complainant and many other employees frequently complained internally about environmental conditions at the call center. The Complainant also made numerous complaints to state and federal agencies. The Complainant was placed on extended illness status (EIS) due to poor health. The Complainant alleged that she engaged in numerous instances of protected activity following her placement on EIS status and prior to her termination. Under a Collective Bargaining Agreement (CBA), an employee could be on EIS status for a maximum of three years, and termination of employment was thereafter automatic. Near the end of her three year EIS term, the Complainant was notified that her employment would be automatically terminated. The Complainant got a physician to release her for work and the Respondent extended her EIS. The Complainant, however, declined the Respondent's arrangements to accommodate her return to work. The Respondent again extended the EIS to permit the Complainant to attempt to obtain employment in another location with the Respondent. The Complainant applied for a position but was not selected. An outside contractor administered the selection process. The Complainant's employment was then terminated. The Complainant filed a whistleblower complaint under the CAA, the SDWA, the FWPCA, and the SWDA. After conducting a hearing, the ALJ dismissed the complaint.

On appeal, the ARB assumed arguendo that the Complainant engaged in protected activity under the environmental acts, but found that substantial evidence supported the ALJ's finding the Complainant had not shown by a preponderance of the evidence that the protected activity caused or was a motivating factor for the adverse action. The CBA provided a maximum period for EIS with automatic termination thereafter. The Defendant nonetheless extended the EIS twice, and only terminated the Complainant's employment after she was notified that she had not been selected for the other position.

The ALJ had acknowledged that there was temporal proximity between a letter the Complainant had sent to the EPA and the notice of termination, creating the possibility of an inference of causation. The ARB agreed with the ALJ, however, that the termination process under the EIS had commenced well before the Complainant sent the letter. The ARB also agreed with the ALJ that several intervening events served to diminish any possible inference of causation: the Complainant's rejection of an offer to return to work with accommodations; the Complainant's unsuccessful application for another position through a contractor unaware of her indoor environmental quality complaints; the Defendant's extension of the EIS; and the fact that the termination did not occur until the Complainant was unable to obtain the alternate job.

One member of the Board wrote a concurring opinion because he has found that the concept of "intervening cause" is frequently misapplied. The member wrote: "�In determining whether an event caused an unfavorable employment action in environmental whistleblower cases, the question is whether the complainant persuaded the ALJ that protected activity was a 'substantial factor.� If protected activity substantially contributed to setting in motion the unfavorable action, I believe liability exits even in the presence of other contributing independent events, but the amount of damages might be partially or completely reduced. Independent intervening events do not negate or change the temporal distance between two events, but they can remove the persuasiveness of the temporal proximity as circumstantial evidence of unlawful retaliation. " USDOL/OALJ Reporter at 7-8 (footnotes omitted; one footnote indicated that ERA cases are treated differently). In the instant case, the ALJ had characterized the intervening events as " negating" any causation that could have been inferred by the temporal proximity. The concurring member found this statement harmless because in the end, the ALJ found that he was persuaded that the events occurring after the Complainant sent the letter to the EPA, were the substantial factors in the termination of employment and not the preceding protected activity.

Denial of interlocutory review of ALJ's denial of the Complainant's request for a protective order, and grant of the Respondent's motion to compel certain discovery responses.