USDOL/OALJ Reporter: ARB Decision Caselist -- March 2011

[Nuclear and Environmental Digest XI D 1]
CLEAR AND CONVINCING EVIDENCE; RELATIONSHIP BETWEEN SUPERVISOR AND COMPLAINANT HAD BEEN SEVERELY DAMAGED EVEN BEFORE COMPLAINANT'S PROTECTED ACTIVITY

In Chen v. Dana-Farber Cancer Institute , ARB No. 09-058, ALJ No. 2006-ERA-9 (ARB Mar. 31, 2011), the ARB found that, while the Complainant, a research fellow, proved that her reporting of a radiation spill was a contributing factor to her discharge, the Respondent was not liable under the whistleblower provision of the ERA because it proved by clear and convincing evidence that it would have fired the Complainant absent her protected activity. The Complainant's day-to-day supervisor, the laboratory's principal researcher, heavily influenced the decision by the laboratory head to discharge the Complainant. The supervisor and the Complainant had disagreed over laboratory protocols shortly after the Complainant began her 90 day probationary employment. The relationship was severely damaged before the protected activity of reporting the radiation spill occurred, and the ARB found that there was clear and convincing evidence that the supervisor would have recommended termination absent the protected activity.

One member of the Board dissented, finding that under the very high standard of proof presented by the clear and convincing evidence standard the Respondent had not demonstrated that it would have fired the Complainant absent her protected activity. The dissent includes a discussion of the "cat's paw" theory of liability approved by the Supreme Court in Staub v. Proctor , 131 S.Ct. 1186 (2011) (arising under the USERRA).

FAILURE TO EFFECT BONA FIDE TERMINATION AND RETALIATION IN RESPONSE TO FILING OF LCA COMPLAINT; LIABILITY FOR BACK PAY, HEALTH INSURANCE PENSION PLAN CONTRIBUTIONS, AND LITIGATION COSTS

In Huang v. Ultimo Software Solutions, Inc. , ARB No. 09-044, 09-056, ALJ No. 2008-LCA-11 (ARB Mar. 31, 2011), the ARB affirmed the ALJ's finding that the Respondent did not effect a bona fide termination of the Complainant H-1B worker, and the ALJ's order that the Respondent pay back wages and amend its LCA to reflect the Complainant's original assignment to San Jose and later reassignment to Houston. The ARB also affirmed the ALJ's finding that the Respondent retaliated against the Complainant for filing a complaint and participating in DOL's investigation when it notified USCIS that it had terminated the Complainant's employment two days after learning of the complaint from the Wage and Hour investigator. The ARB likewise found that the record supported the ALJ's determination that, because the Respondent did not effect a bona fide termination, it owed the Complainant compensation for health insurance benefits and pension plan contributions. The ARB found that the ALJ permissibly ordered the Respondent to pay the Complainant's litigation travel costs.

CONSOLIDATED SUBSIDIARIES OF PUBLICLY TRADED COMPANY WERE COVERED UNDER THE SOX WHISTLEBLOWER PROVISION, EVEN PRIOR TO DODD-FRANK ACT AMENDMENT OF SECTION 806

Coverage of consolidated subsidiaries

In Johnson v. Siemens Building Technologies, Inc. , ARB No. 08-032, ALJ No. 2005-SOX-15 (ARB Mar. 31, 2011) (en banc), the ARB held in an en banc decision that Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002, Title VIII of the Sarbanes-Oxley Act of 2002, Pub. L. 107-204, 18 U.S.C.A. § 1514A (West Supp. 2010) "covers a subsidiary whose financial information is included in the consolidated financial statements of a parent company subject to the registration and reporting requirements of Sections 12 and 15(d), respectively, of the Securities Exchange Act of 1934." The ARB remanded the case to the presiding ALJ for a determination of whether the Respondent was a consolidated subsidiary of the parent company at the time of the adverse employment action.

No retroactive effect to Dodd-Frank amendment because Dodd-Frank was merely a clarification of what was intended

The ARB found that the amendment to Section 806 of SOX by Section 929A of the Dodd-Frank Act to include coverage of "any subsidiary or affiliate whose financial information is included in the consolidated financial statements" of "a company with a class of securities registered under section 12 of the Securities Exchange Act of 1934 (15 U.S.C. 78l), or that is required to file reports under section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78o(d))" is merely a clarification of Section 806, and what was intended all along. Thus, the Dodd-Frank Act amendment does not need to be afforded retroactive effect as to "consolidated subsidiaries" because they were covered under the pre-amendment law.

Agency analysis; Klopfenstein should not be interpreted narrowly

In Johnson , the ALJ had originally analyzed the complaint under Klopfenstein v. PCC Flow Tech. Holdings, Inc. , ARB No. 04-149, ALJ No. 2004-SOX-11 (ARB May 31, 2006), and found that the Respondent subsidiary was not a covered "agent" under SOX because there was no evidence that the parent controlled employment decisions at the subsidiary, knew of the Complainant's concerns about accounting irregularities, or played any role in the termination of the Complainant's employment. The ARB indicated that the ALJ had applied Klopfenstein too narrowly "by exclusively focusing on the agency factors upon which the Board's ruling in Klopfenstein turned, [and] fail[ing] to consider alternative bases and factors upon which common law agency might be established." The ARB stated, however, that given its finding that a consolidated subsidiary is covered, it would not discuss the issue further.

The ARB left open for the ALJ to address on remand the question of whether its ruling affected the liability of the parent company.

The concurring opinion

� Agency coverage: focus should be on Section 806's purpose as a securities law

One member of the Board noted in a concurring opinion that the Board had not explained how the ALJ erred by failing to consider alternative grounds for agency coverage, and stated that an explanation was warranted. Specifically, the ALJ only looked at "actual authority," and not two other bases for attributing legal consequences of one party's actions to another party � "apparent authority" and "respondeat superior." The concurring member also stated that the ALJ had failed to take into consideration that Section 806 is primarily a securities law when construing the common law agency principles. The concurring member wrote: "Construed as an antifraud provision, rather than an employment or labor law, it is sufficient, as an example, to establish that the retaliating entity exists as an agent of the publicly traded parent company 'for purposes of producing accounting or financial information which is consolidated into the parent's financial reports, or that an agent or contractor facilitated fraud like the subsidiaries, off-the-books special purpose entities (SPEs), and the accounting firms that helped precipitate the financial collapse of Enron, the key corporate figure in the legislative history of Sarbanes-Oxley.'" USDOL/OALJ Reporter at 24, quoting Walters v. Deutsche Bank AG , ALJ No. 2008-SOX-70 (ALJ Mar. 23, 2009), slip op. at. 7-8. In such instances, the focus for coverage purposes is "on the agent's role in preparing financial data or its participation in fraud or deception." Id. , quoting Walters :, supra .

� Parents and consolidated subsidiaries are a single, unitary company under SEC registration and filing rules, and so too under Section 806 of the SOX

The concurring member also wrote separately to emphasize what he considered to be the key factor in determining that the Dodd-Frank amendment was merely a clarification of SOX Section 806: the statutory and regulatory backdrop, by which the publicly traded parent company and its consolidated subsidiaries are considered a single, unitary company. The member stated that "the absence of an explicit reference to subsidiaries in Section 806 does not, as ALJs and several district courts have held, exclude subsidiaries from coverage. ... Rather than exclude subsidiaries from coverage, Section 806's statutory and regulatory backdrop evidence a congressional presumption that consolidated subsidiaries of publicly traded companies are subject to Section 806's prohibitions against retaliation, and that employees of such subsidiaries who engage in whistleblower protected activities are thereby protected." USDOL/OALJ Reporter at 27.

ARB affirmed ALJ's findings that the Complainant's STAA complaint was not timely and presented no grounds for equitable modification, and moreover that the Complainant failed to allege or show that he engaged in protected activity.

PROTECTED ACTIVITY; TAPING OF CONVERSATIONS TO SUPPORT AIR21 CLAIM NOT PROTECTED WHERE THEY HAD BECOME INDISCRIMINATE AND EXCESSIVE

In Hoffman v. NetJets Aviation, Inc. , ARB No. 09-021, ALJ No. 2007-AIR-7 (ARB Mar. 24, 2011), the ARB affirmed the ALJ's finding that the Respondent placed the Complainant on paid administrative leave because it was concerned that the Complainant was recording confidential information and non-safety related conversations, rather than because of the protected activity of gathering evidence of air safety violations and discovery for an ongoing AIR21 whistleblower proceeding. The record established that the Complainant had made over 750 recordings, and the Respondent had a reasonable belief that some of the recordings did not involve protected activity. Moreover, there was evidence that the Respondent had been concerned about recordings of confidential financial information, and had scaled back the amount of confidential information it disclosed to employees. The Complainant admitted that he had recorded portions of meetings during which the company's financial status and business strategy were discussed, and the evidence established that at least 37 recordings were not related to safety concerns.

The ARB emphasized that the lawful taping of conversations to obtain information about safety-related conversations is protected activity and should not subject an employee to any adverse action. Nonetheless it distinguished earlier decisions holding that tape recording to gather evidence of activities that are protected under the whistleblower statutes is protected, on the ground that the Complainant in the instant case had engaged in indiscriminate and excessive recording of topics unrelated to air safety, including the company's business strategy and finances.

One member of the Board dissented on the ground that under the facts of the case, it was impossible to separate legal from illegal motives. Thus, the dissenter would have proceeded to mixed motive analysis and found the Respondent liable for illegally placing the Complainant on administrative leave while the tapes were reviewed by the Employer. Because the Complainant had been paid while on leave, and had only suffered negligible loss of flight time due to protected activity, the dissenter would not have awarded damages. The dissenter, however, would have declared the Respondent's recordation policy, as written, illegal as a means of affirmative relief.

AUTHORITY OF ALJ AND ARB TO DECLARE AN EMPLOYER POLICY INVALID OR UNLAWFUL

In Hoffman v. NetJets Aviation, Inc. , ARB No. 09-021, ALJ No. 2007-AIR-7 (ARB Mar. 24, 2011), the Complainant argued on appeal that the ALJ erred when he refused to consider whether a policy of the Respondent's Flight Operation Manual requiring pilots to inform management before writing up safety issues violated a federal aviation regulation, or whether a policy barring recordings by employees relating to the Respondent's business was unlawful because it did not specifically exclude protected activity under AIR21. Rather, the ALJ only considered whether the Respondent had applied its policies to the Complainant in a manner that violated AIR21. The ARB agreed with the ALJ's analysis. The ARB stated that under AIR21, it can hear complaints of alleged discrimination in response to protected activity and, upon finding a violation , order the employer to take affirmative action to abate the violation. Because the Complainant failed to prove a violation of AIR 21, it had no power to declare the policies invalid or unlawful. The ARB thus agreed with the ALJ that he had to determine only whether the Respondent discriminated or retaliated in applying its policies to the Complainant. One dissenting member indicated that she would have declared the Respondent's recordation policy, as written, illegal as a means of affirmative relief.

ATTORNEY'S FEE NOT AWARDED FOR COST OF ESTABLISHING THAT RESPONDENT HAD, IN FACT, TURNED OVER AN EMAIL IN DISCOVERY

In Hoffman v. NetJets Aviation, Inc. , ARB No. 09-021, ALJ No. 2007-AIR-7 (ARB Mar. 24, 2011), the Complainant filed a motion to supplement the record in his AIR21 appeal with an email he argued first became available during an arbitration hearing. The ARB first noted that granting leave to reopen the record is committed to the sound discretion of the ALJ, and that the ARB's standard of review does not permit examination of new evidence. The ARB also found, however, that the email was part of a thread of emails already in the record. The ARB denied the Respondent's request for an attorney's fee to cover the cost of culling the voluminous record for this email because the ARB found that the Complainant's motion was neither frivolous nor brought in bad faith.

AUTHORITY OF WAGE AND HOUR DIVISION TO REQUEST PREVAILING WAGE DETERMINATION DURING INVESTIGATION BASED ON NONEXISTENT OR INSUFFICIENT DOCUMENTATION

In Administrator, Wage and Hour Div., USDOL v. Lung Associates, P.A. , ARB No. 09-029, ALJ No. 2007-LCA-13 (ARB Mar. 24, 2011), the Wage and Hour Division obtained a prevailing wage determination from the State Workforce Agency during its investigation of an LCA complaint about the wages paid to H-1B nonimmigrant physicians by a medical professional association. The investigator requested the wage determination because the Respondent had no documentation supporting the prevailing wages it attested to in the LCA for two of the physicians, and only a one-page job classification print-out for the third, which appeared on its face to be incredibly low for a physician and in comparison to the prevailing wage attestations for the other two physicians.

On appeal, the Respondent argued that the job classification print-out it retained adequately supported all of the prevailing wage attestations for all three physicians. The Respondent also asserted that the Wage and Hour investigator's procurement of a wage determination was unwarranted and inappropriate.

The ARB found these arguments unpersuasive. The ARB found that the argument that the print-out for one of the physicians was sufficient to document all prevailing wage attestations was contrary to the record. Rather, the record showed that the Respondent's prevailing wage documentation was either "nonexistent" or "insufficient," which are grounds under 20 C.F.R. § 655.731(d) for Wage and Hour to seek an appropriate prevailing wage during the investigation.

SCOPE OF ARB REVIEW; ARB WILL NOT CONSIDER ARGUMENTS RAISED FOR THE FIRST TIME ON APPEAL

REGULATION THAT FORMERLY PROVIDED A 95% THRESHOLD FOR A PREVAILING WAGE VIOLATION DID NOT SHIELD RESPONDENT FROM LIABILITY FOR 100% OF UNDERPAID WAGES WHERE IT HAD PAID LESS THAN 95% OF PREVAILING WAGE

In Administrator, Wage and Hour Div., USDOL v. Lung Associates, P.A. , ARB No. 09-029, ALJ No. 2007-LCA-13 (ARB Mar. 24, 2011), the Respondent argued on appeal that because of a regulation that was in effect at the time of the LCA which provided that no prevailing wage violation would be found in a case where the employer paid a wage equal to or more than 95% of the prevailing wage, 20 C.F.R. § 655.731(d)(4) (2004), the Administrator's higher calculations based on 100% of the prevailing wage which had been accepted by the ALJ were erroneous. The ARB rejected the argument for two reasons. First, under well-established precedent, the ARB declines to consider arguments a party raises for the first time on appeal. Second, even if it considered the argument, the record showed that the Respondent paid less than 95% of the applicable prevailing wage, and therefore could not avail itself of the old regulation.

LIABILITY FOR ATTORNEY FEES CONNECTED WITH H-1B PETITION

In Administrator, Wage and Hour Div., USDOL v. Lung Associates, P.A. , ARB No. 09-029, ALJ No. 2007-LCA-13 (ARB Mar. 24, 2011), the Respondent argued that it was not liable for unreimbursed attorney's fees for two physicians paid in connection with their H-1B petitions because those workers had retained their own immigration counsel who advised them on matters outside the H-1B program including their J-1 visa waivers, and because the filing of the H-1B petitions benefitted the applicants and not the Respondent. The ARB rejected these arguments:

    Lung Associates's arguments lack merit. Where attorney fees and other costs connected to the preparation and filing of the H-1B petition are specifically considered to be a business expense of the employer, we reject Lung Associates's contention that it should not be responsible for paying such fees. By virtue of their J-1 visa, Ghobrial and Yataco were entitled to enter the United States for graduate medical training. Upon completion of that training, they had to fulfill, unless waived, a two-year foreign residency requirement. Lung Associates's attempt to distinguish legal services rendered in procuring those waivers from legal services rendered in employing Ghobrial and Yataco must fail. Only upon receiving a J-1 waiver is a nonimmigrant alien J-1 visa holder eligible to obtain an H-1B visa. Because Ghobrial and Yataco had to obtain a J-1 waiver before Lung Associates could employ them, the Administrator's determination and the ALJ's finding that their legal costs are employer's business expenses is consistent with the Act and regulations. Therefore, we affirm the ALJ's conclusion that Lung Associates is liable for Ghobrial's and Yataco's unreimbursed legal costs.

USDOL/OALJ Reporter at 10 (footnotes omitted).

WILLFUL VIOLATIONS; PAYMENT OF BONUSES OR EXTRA MONEY TO OTHER WORKERS AND OTHER FACTORS FOUND NOT RELEVANT TO ISSUE OF WILLFULNESS

In Administrator, Wage and Hour Div., USDOL v. Lung Associates, P.A. , ARB No. 09-029, ALJ No. 2007-LCA-13 (ARB Mar. 24, 2011), the Respondent argued that the Administrator and the ALJ found that the Respondent's failure to pay two H-1B physicians certain wages was "willful," without considering that it had relied on documents counsel provided to support its job classification, that it was misled by the job classification, that its payment of bonuses and extra pay for the physicians' covering for other physicians is evidence of a good faith effort to comply with its wage obligations, and it had been negotiating with one of the physicians the terms of his future employment. The ARB rejected these arguments.

First, the finding of a willful violation had not been based on failure to sufficiently support the job classification and wage attestations, but rather a willful failure to pay the physicians at the appropriate wage rate during the final weeks of their employment. Second, the fact that the Respondent paid bonuses or extra money for covering other physicians was irrelevant where the ALJ properly found that this money was not "wages paid" under the H-1B program. Third, assuming that it was true the Respondent and one of the physicians were negotiating future employment terms, and that the Respondent withheld the other physician's wages in an attempt to recover expenses, neither factor relieved the Respondent of its obligation to pay wages.

RESPONDENT'S REPRESENTATION AT THE HEARING BY ITS PRESIDENT; ALJ WAS NOT OBLIGATED TO QUESTION THE PRESIDENT AS TO HIS QUALIFICATIONS AS A REPRESENTATIVE

In Administrator, Wage and Hour Div., USDOL v. Lung Associates, P.A. , ARB No. 09-029, ALJ No. 2007-LCA-13 (ARB Mar. 24, 2011), the Respondent's president entered an appearance at the outset of the ALJ hearing. The ALJ advised the president of his right to be represented by counsel and the president acknowledged that he was aware of that right. The ALJ stated that, although counsel was not required to proceed, an attorney would be of assistance in this kind of case. The ALJ then asked the president whether it was his desire to proceed without counsel. The president replied that he was willing to present his facts. On appeal, now represented by counsel, the Respondent argued that the ALJ erred by not inquiring into the president's qualifications to render legal advice, which put the Respondent at a disadvantage by allowing its president to represent the company. The ARB rejected this argument. The ARB found that the applicable rules of practice and procedure at 29 C.F.R. Part 18 provide that any party has the right to appear at the hearing in person, by counsel, or by other representative including a non-lawyer. The president's representation of the Respondent at the hearing was in keeping with these rules, and the ALJ was under no obligation to question the president as to his qualifications.

[STAA Digest IX C]
ATTORNEY'S FEES; EVEN THOUGH PETITION IS UNOPPOSED, ARB WILL REVIEW PETITION FOR COMPLIANCE WITH APPLICABLE STANDARDS

In Cefalu v. Roadway Express, Inc. , ARB No. 09-070, ALJ No. 2003-STA-55 (ARB Mar. 17, 2011), the ARB held that, even though the Complainants' attorneys' fees petitions were unopposed, it nonetheless had the obligation to ensure that they followed applicable standards, such as documentation of the hours worked and rates claims, and documentation of the reasonableness of the hourly fee. In the instant case, the ARB found that the fee petitions met those standards, and the ALJ's attorney fee awards would be affirmed.

INTERLOCUTORY REVIEW ON WAIVER OF PRIVILEGES ISSUE DENIED WHERE ALJ DECLINED TO CERTIFY ISSUE AND PROTECTIVE PROCEDURES ARE AVAILABLE

In Johnson v. U.S. Bancorp , ARB No. 11-018, ALJ No. 2010-SOX-37 (ARB Mar. 14, 2011), the Respondent had hired an attorney to independently investigate the Complainant's allegations of fraudulent activities under the SOX. The attorney determined that the Complainant's allegations were not supported and instead that the Complainant committed ethics violations. As a result of the investigation, the Complainant was fired. The Complainant filed a SOX complaint. During discovery, the Complainant sought information that the Respondent claimed was protected from disclosure pursuant to both attorney-client privilege and work product privilege. The ALJ found that the attorney hired by the Respondent had been both an attorney and investigator, and consequently there had been a waiver of the attorney-client privilege. The ALJ found a waiver of the work-product privilege when the Respondent placed its investigation at issue by asserting it as an affirmative defense. The ALJ ordered in camera inspection of the documents for which privilege was claimed, and the joint drafting of protective orders where there was a legitimate need to protect the identity of third-party customers or employees. The Respondent filed a motion requesting that the ALJ certify to the ARB for interlocutory review under 28 U.S.C. 1292(b) the issue of whether there had been a waiver of the attorney-client privilege . The ALJ did not find sufficient ground to certify or to stay the proceeding pending an interlocutory appeal. The Respondent then filed a direct petition for interlocutory review with the ARB. The ARB decided the petition based on the lack of certification by the ALJ and the availability of protective, in camera, and other orders to preserve any potentially privileged material or evidence, citing Mohawk Indus. Inc. v. Carpentier , 558 U.S. __, 130 S.Ct. 599, 608 (2009).

TIMELINESS OF COMPLAINT; COMPLAINT BROUGHT THREE YEARS AFTER END OF LIMITATIONS PERIOD FOUND NOT TO JUSTIFY PAYMENT OF $1000 BY PRO SE COMPLAINANT

In Greene v. Omni Visions, Inc. , ARB No. 09-109, ALJ No. 2009-SOX-44 (ARB Mar. 9, 2011), the Complainant was terminated from her employment, and 213 days later she filed a False Claims Act complaint in federal district court. 517 days after she voluntarily dismissed the False Claims Act complaint, and 1024 days after her termination from employment, she filed a SOX whistleblower complaint with OSHA. Both OSHA and the ALJ found that the complaint was not timely filed. The ALJ rejected the Complainant's arguments why equitable tolling should apply. On appeal, the ARB affirmed the denial. The Complainant first argued that she had been misled by her attorney because he had told her that filing a SOX complaint was not an option while the False Claims Act complaint was pending. The ARB found that the Complainant freely chose her attorney and must bear the consequences of any acts or omissions by that attorney. The Complainant argued that tolling should apply because the Respondent had not disclosed to her that it was an "employee stock ownership plan corporation." The ARB found that the Complainant did not explain why the fact that she did not know about the Respondent's corporate structure precluded the timely filing of her SOX complaint, or why the Respondent had an obligation to inform her of the corporate structure. The ARB found no support for the contention that the False Claims Act was a filing of the precise claim in the wrong forum, and that even if it was an extraordinary event that prevented a timely filing, she still waited 517 days after that complaint was dismissed to file her SOX complaint. The ARB also rejected the arguments that the SOX complaint should not be dismissed because of the serious nature of her concerns with the Respondent's business practice and because of a lack of prejudice to the Respondent. The ARB stated that neither of those factors are a basis for equitable tolling.

The Respondent moved for an award of $1,000 in attorney fees pursuant to 29 C.F.R. § 1980.110(e), on the ground that the Complainant filed the SOX three years after the limitations period had expired, with no recognized basis for doing so. The ARB found some merit to the request, but because of the Complainant's pro se status declined to find that the complaint was totally baseless or brought in bad faith. Thus, the ARB denied the motion.

Approval of settlement agreement.

[STAA Digest II I]
RECONSIDERATION; ARB OVERLOOKED MATERIAL FACT

In Kerchner v. Grocery Haulers, Inc. , ARB No. 08-066, ALJ No. 2007-STA-41 (ARB June 30, 2010), the ARB had affirmed the ALJ's finding that the Respondent was the proper party to a timely blacklisting claim. Because the ALJ found that OSHA had misconstrued the blacklisting claim as against the company with which the Complainant applied rather than the Respondent (his former employer) the ALJ ordered a remand for OSHA to investigate the blacklisting claim. The ARB found in its June 30, 2001 decision that the ALJ should have heard the blacklisting claim rather than remanding to OSHA. The Respondent then filed a motion for reconsideration informing the Board that OSHA had already considered and rejected the blacklisting claim. An ALJ hearing had been requested on this second complaint, but the Complainant withdrew it after failing to secure the services of an attorney. The ARB affirmed the ALJ's dismissal in Kerchner v. Grocery Haulers, Inc. , ARB No. 10-003, ALJ No. 2009-STA-52 (ARB Nov. 30, 2009). In view of having overlooked this material fact, the ARB found that it erred in remanding the blacklisting claim to the ALJ in ARB No. 08-066, ALJ No. 2007-STA-41. The ARB reissued its decision in ARB No. 08-066, ALJ No. 2007-STA-41, affirming in all other respects. Kerchner v. Grocery Haulers, Inc. , ARB No. 08-066, ALJ No. 2007-STA-41 (ARB Mar. 8, 2011)

[STAA Digest II E 7]
REMAND TO OSHA TO INVESTIGATE PORTION OF CLAIM NOT PREVIOUSLY INVESTIGATED; ALJ DID NOT HAVE SUCH REMAND AUTHORITY UNDER OLD STAA REGULATIONS

In Kerchner v. Grocery Haulers, Inc. , ARB No. 08-066, ALJ No. 2007-STA-41 (ARB Mar. 8, 2011), the ARB granted reconsideration of its June 10, 2010 decision which had remanded the matter to the ALJ for a hearing on the Complainant's blacklisting claim, because the ARB had overlooked the fact that the blacklisting claim had already been resolved in a second proceeding. The Board also reissued its June 10, 2001 decision to clarify that its remand order to the ALJ was moot; however, the ARB reiterated that the ALJ had erred in ordering a remand to OSHA of the blacklisting claim because neither the STAA nor the regulations authorized the ALJ to compel OSHA to conduct investigations. Thus, where a complainant has alleged ongoing retaliation after he has filed his initial complaint that OSHA has either failed or refused to consider, the ALJ should afford the complainant the opportunity to submit supplemental pleadings pursuant to 29 C.F.R. § 18.5(e)(2009). The ARB noted that the STAA regulations were later amended to explicitly prevent remands from the ALJ to OSHA in STAA cases. Kerchner v. Grocery Haulers, Inc. , ARB No. 08-066, ALJ No. 2007-STA-41 (ARB June 10, 2010, Revised Mar. 8, 2011).

Denial of reconsideration where Complainant merely repeated arguments already considered and rejected by the ARB.

Denial of reconsideration where Complainant merely repeated arguments already considered and rejected by both the ALJ and the ARB.

Reissued decision correcting numerical and spelling errors. Decision was casenoted with the February ARB decisions.

Correction of numerical and spelling errors.