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

 

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Summary :

SCA WAGE DETERMINATION CLASSIFICATION OF POSITION; PETITIONER SEEKING NEW CLASSIFICIATION MUST SHOW THAT ADMINISTRATOR'S CLASSIFICATION WAS UNREASONABLE, NOT JUST THAT ANOTHER CHOICE WAS AVAILABLE

In In the Matter of Andrew Aiken , ARB No. 08-009 (ARB Apr. 30, 2009), the petitioners were Biomedical Engineering Technicians (BMETs) and Senior BMETs seeking review of a SCA wage classification on a contract their employer had with the Army to provide medical equipment services. The Wage and Hour Division had classified the job for purposes of the wage determination as Electronics Technician, Maintenance (ETMs). The petitioners sought a new classification, but Wage and Hour found that the classification was correct and that a conformance was unnecessary, as the BMETs' duties fit within the ETM classification, which expressly mentioned maintenance of medical equipment. On appeal, the ARB found that the Administrator's determination was reasonable because the BMET job duties fell within the scope of the ETM classification. The ARB emphasized that its review was focused on the Administrator's choice and the rationale advanced to support it. In challenging a determination, the burden is on the petitioner not merely to prove that another choice was available, or perhaps even preferable, but to demonstrate affirmatively that the Administrator's choice was unreasonable. The ARB stated that the conformance process does not require the exactitude that might be achieved on a de novo determination of prevailing wage rates. Although the petitioners had argued that their work differs substantially from the work of ETMs, the ARB found no convincing argument or factual support in the record to show that the Administrator's classification was unreasonable. The classification need not fit precisely within the definitional contours of preexisting wage determination classifications so long as it is "within the scope" of the classification. The ARB found little relevance in the petitioners' citation of an HHS job announcement or an O*Net job classification showing a separate BMET classification.

SCA WAGE CONFORMANCE REQUEST; REGULATIONS ADEQUATE TO PUT PETITIONERS ON NOTICE OF OBLIGATIONS AND OPTIONS IN REQUESTING CONFORMANCE; PURPORTED OUTDATED AND INCORRECT ADVISE FROM WAGE ADVISOR AND SPECIALIST WAS NOT AT ISSUE BUT RATHER THE ADMINISTRATOR'S ULTIMATE DECISION TO DENY THE REQUEST

In In the Matter of Andrew Aiken , ARB No. 08-009 (ARB Apr. 30, 2009), the petitioners argued that flaws in the Administrator's conformance procedures required setting aside the Administrator's determination. Specifically, the petitioners pointed to inadequate and incorrect guidance and the wrong appeal information, and the lack of notice of defects in their Form SF 1444 (Request for Authorization of Additional Classification). The ARB found the argument to be without merit. The ARB found that the language of the conformance regulations was clear and sufficient to place the petitioners on notice of their obligations and options in requesting conformance. The ARB found that there was actual notice because with their conformance request, the petitioners had included a Wage and Hour guidance letter downloaded from the Wage and Hour website. The ARB found, moreover, that the defects in the SF 1444 did not impact the Administrator's ruling denying conformance. Finally, the ARB was not persuaded by the argument that the petitioners had received outdated and incorrect advice from an Army Labor Advisor and a Contracting Agency Specialist, because it is the Administrator who alone made the ultimate decision to deny the request.

 

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Summary :

TRIGGER DATE FOR LIMITATIONS PERIOD; FINAL, DEFINITE AND UNEQUIVOCAL NOTICE; DISTINCTION BETWEEN "COLLATERAL" PROCEDURE SUCH AS ARBITRATION OR GRIEVANCE PROCEDURE, AND LESS FORMAL LETTER FROM EMPLOYER HOLDING OUT OPPORTUNITY FOR REVIEW OF DECISION

In Snyder v. Wyeth Pharmaceuticals , ARB No. 09-008, ALJ No. 2008-SOX-55 (ARB Apr. 30, 2009), the Complainant had been suspended with pay pending an investigation into whether he had improperly accessed a confidential system. While suspended, the Complainant sent an e-mail to the Respondent alleging that company officials had committed Code of Conduct violations. The Director of HR responded in an October 2007 letter informing the Complainant that prior to receiving the e-mail, the company had decided to terminate the Complainant's employment, but also informing the Complainant that the HR Director would entertain evidence addressing the behavior which the company found objectionable or information as to why the Complainant thought the termination was not justified. The Complainant responded. Several months later, in February 2008, the Complainant was informed that an investigation had not substantiated his claims, and that the decision to terminate would stand. The Complainant's suspension was converted to a discharge. The Complainant then filed SOX whistleblower complaint. The complaint was timely if the limitations period began in February 2008, but not if it began on the date of the October 2007 letter. The ALJ found that the willingness of the company to review the discharge decision was similar to an arbitration or grievance procedure, which under Delaware State Coll. v. Ricks , 449 U.S. 250 (1980), did not stay the limitations period. The ARB disagreed.

The ARB found that Ricks was premised on "collateral" review of an employment decision, and that the HR Director's letter "carried none of the indicia of a formal collateral procedure to remedy a final decision. Instead, it injected an element of ambiguity into the transaction and an opportunity for further action, discussion, or change. Thus, the letter did not constitute final, definitive, and unequivocal notice of the termination of Snyder's employment sufficient to commence the running of the limitations period." USDOL/OALJ Reporter at 8. The ARB found this interpretation of Ricks was consistent with the Fourth Circuit's decision in English v. Whitfield , 858 F.2d 957 (1998), and distinguishable from or consistent with several of the ARB's own decisions.

 

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Summary :

Withdrawal of appeal.

 

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Summary :

H-1B WAGE REQUIREMENT TO PAY ALIEN FOR TIME IN NON-PRODUCTIVE STATUS; CIVIL MONEY PENALTIES; WILLFULNESS MAY BE DEMONSTRATED BY A KNOWING FAILURE TO COMPLY WITH THE REGULATIONS

In Administrator v. Pegasus Consulting Group, Inc. , ARB No. 05-086, ALJ No. 2004-LCA-21 (ARB Apr. 28, 2009), the ALJ awarded the complainant back pay for the Respondent's violation of the H-1B wage requirements, but rejected the Administrator's assessment of civil money penalties, holding that it had not been established that the violations were willful. The Administrator appealed, and the ARB reversed on the civil money penalties issue. The ALJ had focused on whether the Respondent had "recklessly" stopped paying the complainant for time he was in non-productive status. The ARB found, however, that the ALJ had not addressed whether the Respondent's conduct constituted a "knowing failure" to comply with the H-1B wage requirements, which is sufficient in itself to establish a "willful" failure to comply. The record demonstrated that the Respondent's president and CFO were aware of the requirement to pay H-1B nonimmigrant employees for non-productive time, and in fact had paid the worker for some period of time. In closing, the ARB observed that the CMP was $5,000, and that this was a "moderate exercise of the Administrator's authority under the circumstances."

COMPENSATION OF BENCHED WORKERS; ALTHOUGH 1995 REGULATIONS INVALIDATED ON PROCEDURAL GROUNDS, STATUTORY REQUIREMENT STILL APPLIED

In Administrator v. Pegasus Consulting Group, Inc. , ARB No. 05-086, ALJ No. 2004-LCA-21 (ARB Apr. 28, 2009), the ARB noted that the 1995 LCA regulation requiring an employer to compensate H-1B workers for non-productive time was declared invalid on procedural grounds by a U.S. District Court. The ARB, however, applied 8 U.S.C. § 1182(n)(2)(C)(vii)(I), because it was the same as the invalidated regulations.

 

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Summary :

FAILURE TO FILE PETITION FOR REVIEW CONFORMING TO 29 C.F.R. § 8.4

In Professional Air Traffic Controllers Organization (PATCO) , ARB No. 09-030 (ARB Apr. 23, 2009, the Petitioner's Service Contract Act appeal was dismissed because its petition failed to meet all of the requirements of 29 C.F.R. § 8.4, and its failed to respond to the ARB's order permitting it to file an amended petition.

 

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Summary :

Approval of settlement.

 

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Summary :

SELECTION OF COMPETING APPLICANT FOR WIA GRANT; GRANT OFFICER MAY CONSIDER PERFORMANCE UNDER A GRANT THAT HAD BEEN VACATED BY THE ALJ; ADVISORY PANEL MEMBERS ARE NOT REQUIRED TO BE WIA EXPERTS; "THE RECORD" INCLUDES ANY INFORMATION USED BY GRANT OFFICER TO MAKE DECISION AND IS NOT CONFINED TO DOCUMENT CONTAINED IN ADMINISTRATIVE FILE

In Commonwealth of Puerto Rico, Dept. of Labor and Human Resources, Right to Employment Adm. v. USDOL , ARB Nos. 09-011, 09-013, ALJ No. 2008-WIA-4 (ARB Apr. 10, 2009), the Complainant appealed the decision of an ETA grant officer to award a Workforce Investment Act (WIA) grant for support to eligible migrant and seasonable farmworkers to a competing applicant. The Complainant had previously been the grantee.

Under the Solicitation for Grant Application (SGA) procedures, where no applicant scored above the threshold scoring criteria before an advisory review panel, and one of the applicants was a state agency (like the Complainant), DOL reserved the right to designate another organization. The SGA also required a "responsibility review" of each potential grantee. In making a final selection, the grant officer determined what applicant best meets the needs of eligible migrants and seasonal farmworkers in the area to be served. The grant officer was permitted to consider any information that came to his or her attention, including past performance.

Following a convoluted procedural history, the ALJ eventually held that the grant officer's decision not to select the Complainant was not unreasonable, arbitrary or capricious. The ALJ also held that the decision to select the competing applicant, however, had been unreasonable because the grant officer had relied on that applicant's performance under a grant that the ALJ had previously vacated due to misapplication of the scoring criteria. The ALJ, however, had not actually removed that applicant as a grantee. After a new selection process, a different grant officer selected the competing applicant even though it had not scored above the threshold at the panel level. The grant officer took into account that applicant's satisfactory performance under the grant that the ALJ had found employed an invalid score.

The ARB held that the ALJ erred in vacating the award to the competing applicant, finding that the ALJ had, without authority, invented a distinction between performances under a valid versus an invalid grant award. The ARB noted that the SGA specifically permitted the grant offer to consider "any" information to comes to his or her attention, including past performance under a previous grant and information from the program office.

The ARB affirmed the ALJ's finding that the Complainant's non-selection was not unreasonable, arbitrary, or not in accordance with law. The Complainant argued that the panel review was faulty because its members were unqualified for the work, and that the panel had misapplied the criteria. The ARB agreed with the ALJ that there was no legal requirement that the panel members be WIA experts, and that there was no evidence of misapplication of the scoring criteria. The ARB also agreed with the ALJ that the responsibility review was not faulty. The ARB found that the ALJ did not err in admitting into evidence e-mail exchanges between the grant officer and the program officer regarding the other applicant's performance, even though they were not part of the administrative file. The ALJ found that "the record" meant the information that the grant officer relied upon to make his decision and not merely the contents of the administrative file.

 

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Summary :

[Nuclear and Environmental Whistleblower Digest II B 1 b]
AMENDMENT OF COMPLAINT BEFORE THE ALJ; ADDITION OF WHISTLEBLOWER CLAIM NOT REASONABLY WITHIN SCOPE OF ORIGINAL COMPLAINT

In Jay v. Alcon Laboratories, Inc. , ARB No. 08-089, ALJ No. 2007-WPC-2 (ARB Apr. 10, 2009), OSHA had found that the Complainant's Federal Water Pollution Control Act (WPCA) whistleblower complaint was not timely filed, and the Complainant requested an ALJ hearing. In a prehearing submission, the Complainant argued that his complaint arose under the Sarbanes-Oxley Act as well as the WPCA. The ARB found that the ALJ did not abuse his discretion in denying the Complainant's motion to amend his complaint to include a SOX claim. The ALJ had found that the request to amend occurred at a "very late" stage, that the SOX claim did not reasonably relate to the scope of the original complaint, and that the SOX claim had only been raised because the complaint would have been timely under the SOX. The ARB found that the Complainant had cited no authority or argument to support the contention that both the WPCA and the SOX were applicable to the complaint.

[Nuclear & Environmental Whistleblower Digest IV B 1]
TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; ACTIVELY MISLEADING THE COMPLAINANT; DIFFERING EXPLANATIONS FOR ADVERSE ACTION

In Jay v. Alcon Laboratories, Inc. , ARB No. 08-089, ALJ No. 2007-WPC-2 (ARB Apr. 10, 2009), the Complainant argued that his WPCA whistleblower complaint should be found timely because it was not until the Employer gave differing explanations for why he was fired that the Complainant realized that something was not right and that his protected activity may have caused the termination. Specifically, the Complainant was first told that his employment was being terminated because of a "skill set mismatch." About a month later, he was told that he had been fired because of failing a performance improvement plan. The ARB agreed with the ALJ in rejecting this argument, finding that the Employer had not actively misled the Complainant the explanations given for the firing being essentially synonymous.

 

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