USDOL/OALJ Reporter: ARB Decision Caselist -- April 2006

USDOL/OALJ Reporter
Decisions of the Administrative Review Board
April 2006

Barber v. Planet Airways, Inc. , ARB No. 04-056, ALJ No. 2002-AIR-19 (ARB Apr. 28, 2006)

• Title : Final Decision and Order
• Link : PDF
• Case type : AIR21 Whistleblower
• Summary :

  CONTRIBUTING FACTOR; TEMPORAL PROXIMITY AND INTERVENING EVENTS

  In Barber v. Planet Airways, Inc. , ARB No. 04-056, ALJ No. 2002-AIR-19 (ARB Apr. 28, 2006), the ALJ properly found that the Complainant had not carried his burden of proving by a preponderance of the evidence that his protected activity was a contributing factor in the Respondent's decision to fire him. Although there was temporal proximity between the protected activity and the adverse action, substantial evidence supported the ALJ's finding of no nexus: (1) the evidence showed that the Respondent had been making preparations to fire the Complainant for months; (2) there was credible testimony by the Respondent's HR manager that he received numerous complaints about the Complainant's sexual harassment, poor management and retaliation against employees; (3) the Complainant had been behind the firing of two captains who had voiced safety complaints to the FAA, and the Respondent had settled, over the Complainant's objection, whistleblower cases filed by those captains because it did not have a defense; (4) the Complainant maintained an "inappropriate" and "unusual" relationship with a FAA inspector, which the ALJ correctly found played a role in the firing -- but not based on safety concerns reported to the FAA. The Board wrote:

      [W]hile a temporal connection between protected activity and an adverse action may support an inference of retaliation, Robinson v. Northwest Airlines, Inc. , ARB No. 04-041, ALJ No. 03-AIR-22, slip op. at 9 (ARB Nov. 30, 2005), the inference is not necessarily dispositive. For example, inferring a causal relationship between the protected activity and the adverse action is not logical when the two are separated by an intervening event that independently could have caused the adverse action. Tracanna v. Arctic Slope Inspection Serv. , ARB No. 98-168, ALJ No. 97-WPC-1, slip op. at 8 (ARB July 31, 2001). Also, where an employer has established one or more legitimate reasons for the adverse action, the temporal inference alone may be insufficient to meet the employee's burden of proof to demonstrate that his protected activity was a contributing factor in the adverse action.

  In the instant case, there had been intervening events. Moreover, the Complainant gave testimony that tacitly agreed with many of the non-discriminatory reasons given by the Respondent for the discharge.

  STATEMENT OF EMPLOYEES WHO DID NOT TESTIFY AT THE HEARING; WHETHER THE STATEMENTS WERE HEARSAY; FAILURE OF COMPLAINANT TO DEPOSE OR SUBPOENA POTENTIAL WITNESSES

  In Barber v. Planet Airways, Inc. , ARB No. 04-056, ALJ No. 2002-AIR-19 (ARB Apr. 28, 2006), the Complainant argued that the ALJ improperly relied on hearsay evidence when he credited the statements of employees who had not testified at the hearing. The ARB found that the ALJ acted within his discretion in admitting the statements because they were not hearsay, as they were admitted -- not to establish the truth of the complaints -- but only to corroborate the testimony of an HR manager that he had received a large number of employee complaints about the Complainant. The ARB also held that even if they were hearsay, the ALJ could determine under 29 C.F.R. § 1979.17(d) that the statements in themselves had some probative value and were therefore admissible.

  The Complainant also argued that the ALJ should have required certain of the Respondent's witnesses who signed statements to testify. The ARB found that the burden of deposing or subpoenaing potential witnesses is on the parties, and not the ALJ.

Holmes v. Roadway Express, Inc. , ARB No. 05-112, ALJ No. 2005-STA-30 (ARB Apr. 28, 2006)

• Title : Final Decision and Dismissal Order
• Link : PDF
• Case type : STAA Whistleblower
• Summary : Withdrawal of objections to OSHA findings

Knox v. United States Dept. of the Interior , ARB No. 06-089, 2001-CAA-3 (ARB Apr. 28, 2006)

• Title : Final Decision and Order on Remand
• Link : PDF
• Case type : CAA Whistleblower
• Summary :

  [Nuclear and Environmental Digest XVII D 2]
  PROTECTED ACTIVITY; POSSIBLE SPILT IN ARB AND FOURTH CIRCUIT INTERPRETATION OF WHETHER COMPLAINANT'S REASONABLE BELIEF OF VIOLATION ALONE IS SUFFICIENT TO ESTABLISH PROTECTED ACTIVITY

  [Nuclear and Environmental Whistleblower Digest XI A 2 c]
  CAUSATION; LACK OF KNOWLEDGE OF RESPONDENT OF COMPLAINANT'S PROTECTED ACTIVITY

  In Knox v. United States Dept. of the Interior , ARB No. 06-089, ALJ No. 2001-CAA-3, the matter was on remand to the ARB from the Fourth Circuit. Knox v. United States Dep't of the Interior , 434 F.3d 721 (4th Cir. 2006). The ARB found that that the Fourth Circuit believed that the ARB's protected activity standard under the CAA only required that the Complainant in the case reasonably believed that asbestos was escaping into the outside, ambient air, and that the ARB had misapplied that standard. The Board, however, clarified its standard as requiring whistleblower to take some action on that belief, and indicated that there may be a conflict between the ARB's standard and the standard enunciated by the Fourth Circuit:

   &nbps;  The ARB's protected activity standard for the CAA is . . .that an employee engages in protected activity under the CAA when he or she expresses a concern, and reasonably believes, that the employer has either violated an Environmental Protection Agency (EPA) regulation implementing the CAA or has emitted or might emit, at a risk to the general public, potentially hazardous materials into the ambient air. If the Fourth Circuit's standard for CAA-protected activity, however, requires only that the whistleblower reasonably believe that an employer is violating EPA regulations or is emitting, or is about to emit, potentially hazardous materials into the ambient air, Knox engaged in CAA-protected activity.

  USDOL/OALJ Reporter at 5 (footnote omitted). The ARB indicated, however, that regardless of the standard for protected activity, the Complainant still did not prevail in the instant case because he admitted in testimony that he had not expressed a concern to the Respondent's management about asbestos escaping from a Job Corp. facility. Since the Respondent was not aware of the Complainant's protected activity, it could not have retaliated against him because of protected activity.

Zappala Farms , ARB No. 04-047, ALJ No. 1997-MSP-9 (ARB Apr. 28, 2006)

• Title : Final Decision and Order
• Link : PDF
• Case type : igrant and Seasonal Agricultural Workers Protection Act - Equal Access to Justice Act
• Summary :

  EQUAL ACCESS TO JUSTICE; APPLICATION FOR ATTORNEY'S FEES AND EXPENSES; BURDEN ON ADMINISTRATOR TO ESTABLISH THAT WAGE AND HOUR'S POSITION WAS SUBSTANTIALLY JUSTIFIED

  A Respondent was not entitled to an award of attorney's fees and expenses under the Equal Access to Justice Act where, although the ALJ and the ARB had not found the facts sufficient to hold the Respondent liable, the undisputed facts of the case and relevant case law demonstrated that the Wage and Hour Administrator had been substantially justified in charging this Respondent with violating the MSPA and assessing civil money penalties. In reviewing an EAJA application, it is not necessary to review the Administrator's position at each stage of the proceedings; rather only one threshold determination of substantial justification is to be made. It is the Administrator's burden to demonstrate that her position was substantially justified. Zappala Farms , ARB No. 04-047, ALJ No. 1997-MSP-9 (ARB Apr. 28, 2006).

Slavin v. Donald Bren School of Env. Science and Management at the Univ. of Cal., Santa Barbara , ARB No. 06-060, ALJ No. 2006-CAA-2 (ARB Apr. 27, 2006)

• Title : Final Decision and Order
• Link : PDF
• Case type : CAA Whistleblower
• Summary :

  UNTIMELY ARB APPEAL

  In Slavin v. Donald Bren School of Env. Science and Management at the Univ. of Cal., Santa Barbara , ARB No. 06-060, ALJ No. 2006-CAA-2 (ARB Apr. 27, 2006), the ARB dismissed the appeal where it was not timely filed and where the Complainant did not respond to the ARB's order to show cause why the ALJ's decision had not become the Secretary's final decision.

Chelladurai v. Infinite Solutions, Inc. , ARB No. 03-072, ALJ No. 2003-LCA-4 (ARB Apr. 26, 2006)

• Title : Final Decision and Order
• Link : PDF
• Case type : Immigration - Labor Condition Application
• Summary :

  LCA BACK WAGES; ENTITLEMENT BEGINS ON DATE COMPLAINANT MADE HERSELF AVAILABLE FOR WORK; UNDER PORTABILITY PROVISIONS OF THE INA, THE ALIEN WAS ELIGIBLE TO WORK ON THE DATE HER EMPLOYER FILED A NONIMMIGRANT WORKER PETITION WITH INS RATHER THAN THE DATE INS APPROVED THE PETITION

  In Chelladurai v. Infinite Solutions, Inc. , ARB No. 03-072, ALJ No. 2003-LCA-4 (ARB Apr. 26, 2006), the Respondent had been found to have failed to pay wages required under the LCA regulations to the Complainant during a period in which she was in nonproductive status for lack of assigned work. The issue on appeal before the ARB was the date on which entitlement to back wages commenced. The ALJ found that the Complainant's entitlement to those wages commenced on the date that the Complainant first came under the Respondent's control following INS's approval of the Respondent's Petition for Nonimmigrant Worker. The ARB, however, citing the portability provisions of the Immigration and Nationality Act, found that the Complainant's entitlement to wages began on the date that the Complainant made herself available for work or otherwise came under the Respondent's control. See 20 C.F.R. § 655.731(c)(6). Under the portability provisions, the Complainant had been eligible for work anytime after the Respondent's filing of the INS petition; her eligibility was not dependent on the INS's approval of the petition. In the instant case, the Complainant's activities taking a computer course and beginning preparations to market herself for computer consulting work while under the Respondent's control constituted her entry into employment with the Respondent within the meaning of section 655.731(c)(6)(i), even though she had no assigned work and was in nonproductive status much of the time. The ARB noted that testimony from the Respondent's that the INS petition was filed as part of an arrangement between families to help the Complainant was not relevant as it was the representations "made to the United States Government, not the expectations or agreement of the parties" which were relevant.

  CALCULATION OF BACK WAGES; WHERE NO ALTERNATIVE WAGE LEVEL AVAILABLE, PROPER TO USE WAGE LISTED IN THE LCA

  The enforceable wage obligation for an employer of an H-1B nonimmigrant is the actual wage level or the prevailing wage level listed in the LCA, whichever is greater. 8 U.S.C.A. § 1182(n)(1); 20 C.F.R. §§ 655.731(c)(6)(i), 655.731(c)(7)(i). Where there was no alternative wage, it was proper for the Wage and Hour Investigator and the ALJ to use the prevailing wage level listed in the LCA to calculate back wages. Chelladurai v. Infinite Solutions, Inc. , ARB No. 03-072, ALJ No. 2003-LCA-4 (ARB Apr. 26, 2006) (the Complainant wanted use of the wage referred to in the Respondent's offer of employment or in its Petition for Nonimmigrant Worker filed with INS).

Davis v. United Airlines, Inc. , ARB No. 02-105, ALJ No. 2001-AIR-5 (ARB Apr. 26, 2006)

• Title : Final Decision and Order
• Link : PDF
• Case type : AIR21 Whistleblower
• Summary :

  DISMISSAL; CHAPTER 11 REORGANIZATION OF RESPONDENT

  In Davis v. United Airlines, Inc. , ARB. 02-105, ALJ No. 2001-AIR-5 (ARB Apr. 26, 2006), the Bankruptcy Court entered into an order confirming United Airlines' Chapter 11 reorganization plan. Shortly thereafter, United filed a Notice of Discharge with the ARB relating to three appeals under stay before the Board. The ARB issued orders to show cause why the stays should not be lifted and the complaints dismissed. None of the Complainants proffered any legally supported rationale for not dismissing their complaints. Accordingly, the ARB dismissed all three appeals in a consolidated decision.

Am-Gard, Inc. , ARB No. 06-050, 2006-CBV-1 (ARB Apr. 24, 2006)

• Title : Final Decision and Order
• Link : PDF
• Case type : cNamara-O'Hara Service Contract Act, substantial variance hearing
• Summary :

  EMPLOYER'S STANDING TO APPEAL ALJ'S DECISION THAT THERE WAS NO SUBSTANTIAL VARIANCE

  In Am-Gard, Inc. , ARB No. 06-050, ALJ No. 2006-CBV-1 (ARB Apr. 24, 2006), the ALJ dismissed a case brought under the "substantial variance" provisions of the McNamara-O'Hara Service Contract Act after finding that the union that had initially sought the hearing had failed to show the existence of a substantial variance. The Employer petitioned for ARB review. The Acting Administrator of the Wage and Hour Division argued that the Employer did not have standing to appeal because it was not an aggrieved party given that it had suffered no adverse consequences from the ALJ's decision. The ARB issued an order to show cause, to which the Employer did not respond. The ARB dismissed the appeal based on the Employer's failure to demonstrate standing to pursue the appeal.

Slavin v. Aigner , ARB No. 06-059, ALJ No. 2005-CAA-11 (ARB Apr. 24, 2006)

• Title : Final Decision and Order
• Link : PDF
• Case type : CAA Whistleblower
• Summary :

  UNTIMELY ARB APPEAL

  In Slavin v. Aigner , ARB No. 06-059, ALJ No. 2005-CAA-11 (ARB Apr. 24, 2006), the ARB dismissed the appeal where it was not timely filed and where the Complainant did not respond to the ARB's order to show cause why the ALJ's decision had not become the Secretary's final decision.

Bertacchi v. City of Columbus - Div. of Sewerage & Drainage , ARB No. 05-155, ALJ No. 2003-WPC-11 (ARB Apr. 13, 2006)

• Title : Final Decision and Order Dismissing Complaint and Appeal
• Link : PDF
• Case type : WPCA Whistleblower
• Summary :

  [Nuclear and Environmental Digest XVII D 2]
  SETTLEMENT WHILE CASE ON APPEAL BEFORE THE ARB; IN WPCA CASES, DOL APPROVAL OF THE SETTLEMENT IS NOT REQUIRED

  In Bertacchi v. City of Columbus - Div. of Sewerage & Drainage , ARB No. 05-155, ALJ No. 2003-WPC-11 (ARB Apr. 13, 2006), while the appeal was pending before the ARB the parties reached a settlement. The ARB dismissed the appeal, noting that under the WPCA, there is no requirement that the Secretary of Labor approve a settlement. Thus, the appeal was dismissed pursuant to FRCP 41(a)(1)(ii).

Cummings v. USA Truck, Inc. , ARB No. 04-043, ALJ No. 2003-STA-47 (ARB Apr. 11, 2006)

• Title : Final Order Denying Reconsideration
• Link : PDF
• Case type : STAA Whistleblower
• Summary : Denial of reconsideration.

Halpern v. XL Capital, Ltd. , ARB No. 04-120, ALJ No. 2004-SOX-54 (ARB Apr. 4, 2006)

• Title : Order Denying Reconsideration
• Link : PDF
• Case type : Sarbanes Oxley Whistleblower
• Summary : The ARB found that it did not fail to reconsider material facts as alleged by the Complainant in a motion for reconsideration.