April 2019
Jacobs v. Liberty Logistics, Inc., ARB No. 2017-0080, ALJ No. 2016-STA-00007 (ARB Apr. 30, 2019) (per curiam) (Final Decision and Order)
[Editor's note: This decision was reissued with an errata on May 9, 2019. See Jacobs v. Liberty Logistics, Inc., ARB No. 2017-0080, ALJ No. 2016-STA-00007 (ARB May 9, 2019) (reissuance with errata) (per curiam)] Casenote(s):Slip Opinion
The ARB affirmed the ALJ's Decision and Order in a Per Curiam Final Decision and Order. The only issue the ARB discussed was whether the Complainant was terminated from his employment or voluntarily resigned:
The ALJ found that Complainant resigned from his job when he gave Respondent a so-called "Notice of Rescission" letter, in which Complainant said he was terminating "any and all agreements" between his employer and himself. The letter also purported to preserve the Respondent's obligation to pay him. The content of Complainant's Notice of Rescission letter persuaded the ALJ that Complainant had voluntarily resigned his employment. . . . Although Complainant asserted in his testimony that he did not resign and that the letter meant something else, the ALJ did not find that testimony credible
Slip op. at 3 (citation omitted).
Hunter v. CSX Transportation, Inc., ARB Nos. 2018-0044, and -0045, ALJ No. 2017-FRS-00007 (ARB Apr. 25, 2019) (per curiam) (Final Decision and Order)
Casenote(s):
The ARB summarily affirmed the ALJ’s Decision and Order and adopted it as its own.
Corrections Corp. of America, ARB Nos. 2016-074, -075, ALJ No. 2015-CBV-00001 (ARB Apr. 18, 2019) (per curiam) (Final Decision and Order)
Casenote(s):
SUCCESSOR CONTRACTS AND SUBSTANTIAL VARIANCE REQUEST; SUBSTANTIAL VARIANCE PROCEEDINGS CAN BE USED BOTH TO RAISE OR LOWER RATES
SUCCESSOR CONTRACTS AND SUBSTANTIAL VARIANCE REQUEST; BURDEN OF PROOF; COMPARATOR JOBS MUST BE SHOWN TO BE SIMILAR; EVIDENCE OF NON-ARM’S LENGTH BARGAINING NOT RELEVANT UNLESS IDENTIFIED AS ISSUE BY ADMINISTRATOR
In Corrections Corp. of America, ARB Nos. 2016-074, -075, ALJ No. 2015-CBV-00001 (ARB Apr. 18, 2019) (per curiam), the United Government Security Officers of America (UGSOA) sought a variance from the collectively-bargained wages for detention officers at the Elizabeth Detention Center in Elizabeth, New Jersey, in a contract between the Corrections Corporation of America (CCA) and the U.S. Department of Homeland Security’s Immigration and Customs Enforcement (ICE).
Background
In 2009, CCA had entered into a CBA with the detention facility employees’ union at a wage rate of $20 per hour for detention officers. In 2012, the employees elected a different union, UGSOA, as their collective bargaining representative, and a new CBA was negotiated. This CBA provided for hourly wage rates for detention officers of $20.40 in 2013, $20.71 in 2014 and $21.02 in 2015. In 2014, UGSOA filed a request with the Wage and Hour Administrator for a substantial variance hearing, asserting that the CBA wage rate was substantially below the prevailing wage for detention officers in the locality. The Administrator filed an Order of Reference with OALJ, and the ALJ conducted a hearing, after which he “concluded that, although UGSOA could utilize the substantial variance process to obtain a higher rate, the union failed to submit evidence providing the required comprehensive mix of hourly wage rates necessary to establish the prevailing wage for workers providing similar services in the same locality as the EDC and, therefore, a substantial variance.” Slip op. at 2-3 (footnote omitted).
Successor contracts and substantial variance claims
On appeal, the ARB first noted that “SCA Section 4(c), as amended, ’imposes on successor contracts an obligatory floor for wages and fringe benefits in the event that the predecessor contract has specified collectively bargained rates.’” Id. at 4 (citations omitted). That obligation, however, may be suspended if it is demonstrated that a substantial variance between the wages and fringe benefits from the predecessor contract and the prevailing wages and fringe benefits in the same locality for services of a similar character. A substantive variance finding requires a “clear showing” — which means “persuasion by a substantial margin.” Id. DOL regulations require a showing of considerable disparity in rates.
Raising of CBA negotiated rates
CCA argued that “Section 4(c) of the SCA ‘does not permit the Department of Labor to replace the collectively-bargained wage with higher “prevailing wages.”’” Id. at 6 (quoting CCA’s brief). The ARB, however, found no such limitation in applicability the substantial variance provision of the statute, and held that “the variance can include rates that are both higher and lower than the previously-negotiated rate.” Id.
Burden for establishing a substantial variance
UGSOA raised five issues on appeal; however, the ARB found that the record supported the ALJ’s determination that the evidence was insufficient to establish the existence of a substantial variance.
UGSOA argued that the ALJ erred by not relying on evidence relating to correctional officers at a county jail. The ARB noted, however, that the ALJ found that such evidence did not describe the county officers’ job duties for the base salary or steps, and did not include any other evidence of the character of the duties performed. Thus, UGSOA did not establish that the services were similar.
UGSOA argued that the ALJ erred by identifying the hourly wages paid at another detention facility in New Jersey as probative. The ARB noted, however, that the ALJ ultimately concluded that those wage rates were largely irrelevant because UGSOA had not provided enough evidence to determine a prevailing rate regardless of whether the other detention facility’s rates were considered.
UGSOA asserted that the ALJ improperly discounted evidence of a non-arm’s length negotiation. The ARB found, however, that the ALJ was correct in concluding that evidence of non-arm’s length bargaining was not relevant in a substantial variance proceeding unless so designated by the Administrator.
UGSOA contended that the ALJ made an incorrect legal conclusion that the relevant locality was limited to the Newark-Union (New Jersey-Pennsylvania) area, citing 29 C.F.R. § 4.54(a), which in this context indicates that “locality” is an “elastic” term. The ARB was not persuaded, noting that the regulation also says that “‘[l]ocality is ordinarily limited geographically to a particular county or cluster of counties,’ which is what the ALJ concluded in this case.” Id. at 7-8 (quoting the regulation).
Finally, UGSOA challenged the ALJ’s application of All Agency Memorandum No. 166 (Acting Administrator, Wage and Hour Division) (Oct. 8, 1992) (AAM No. 166), arguing that it only states what categories of data are probative and does not state that they are required. The ARB, however, stated that “this assertion does nothing to establish why the information the union did submit was sufficient to establish a substantial variance between [the detention center’s] hourly wage rates and those prevailing for services of a similar character in [the detention center’s] locality.” Id. at 8.
Huang v. Ultimo Software Solutions, Inc., ARB No. 2019-0047, ALJ No. 2008-LCA-00011 (ARB Apr. 18, 2019) (Notice of Determination to Decline Review)
Casenote(s):
MOTION TO RENEW JUDGMENT UNDER STATE LAW; ALJ’S DECISION AND ORDER IS NOT A “JUDGMENT,” DOES NOT NEED TO BE RENEWED, AND IS NOT SUBJECT TO STATE LAW
MOTION TO ENFORCE; ALJ DOES NOT HAVE AUTHORITY TO ENFORCE LCA DECISION AND ORDER; PROPER VENUE IS WAGE AND HOUR DIVISION ADMINISTRATOR OR FEDERAL COURT
In Huang v. Ultimo Software Solutions, Inc., ALJ No. 2008-LCA-11, slip op. at 3 (Feb. 2013, 2019), the Prosecuting Party filed a request for an order, pursuant to a California code provision, renewing the ALJ’s “judgment” because it allegedly had not yet been satisfied. The Acting District Chief ALJ (“DCJ”) considered the request because the presiding judge had retired. The DCJ found that the ALJ’s Decision and Order was not a judgment under the California code, and even if it was, the ALJ’s decision was not subject to the California code and does not expire.
The DCJ further noted that he had no authority to enforce the action or even take any action in the matter because the original ALJ’s decision had become final more than six years earlier. Moreover, the original ALJ’s order had made it clear that payment occurs through the Wage and Hour Division Administrator, and if the Prosecuting Party had not yet received the unpaid wages and other damages he is entitled to under the original ALJ’s orders, “that is an issue for the Administrator or the appropriate federal district court, as the ARB indicated in its November 10, 2011 order denying reconsideration.” The DCJ denied the Prosecuting Party’s motion for reconsideration, finding that it was, at its core, simply an argument that the DCJ was wrong and reassertion of prior argument. See Huang v. Ultimo Software Solutions, Inc., ALJ No. 2008-LCA-11 (ALJ Mar. 19, 2019).
In Huang v. Ultimo Software Solutions, Inc., ARB No. 2019-0047, ALJ No. 2008-LCA-00011 (ARB Apr. 18, 2019), the ARB issued a notice that it was declining the Prosecuting Party’s request for review of the DCJ’s Order Denying Motion To Renew Judgment, ALJ No. 2008-LCA-00011 (Feb. 2013, 2019) and Order Denying Reconsideration, ALJ No. 2008-LCA-00011 (Mar. 19, 2019).
Stearns v. Union Pacific Railway Co., ARB No. 2017-0001, ALJ No. 2016-FRS-00024 (ARB Apr. 5, 2019) (Final Decision and Order)
Casenote(s):
PROTECTED ACTIVITY; PROTECTED ACTIVITY NOT ESTABLISHED MERELY BASED ON DELAY OF TRAIN MOVEMENT—RATHER, COMPLAINANT MUST ALSO SHOW THAT SUCH DELAY ENDANGERED SAFETY OR CAUSED A HAZARDOUS CONDITION
PROTECTED ACTIVITY; PROTECTED ACTIVITY NOT ESTABLISHED BASED MERELY ON COMPLAINANT’S STATUS AS AN EMPLOYEE COVERED BY THE FRSA ENGAGED IN MOVING INTERSTATE COMMERCE
CONTRIBUTING FACTOR CAUSATION NOT ESTABLISHED WHERE COMPLAINANT FAILED TO PROFFER ANY EVIDENCE OF PROTECTED ACTIVITY
In Stearns v. Union Pacific Railway Co., ARB No. 2017-0001, ALJ No. 2016-FRS-00024 (ARB Apr. 5, 2019), the ARB found that the ALJ properly granted summary decision in favor of the Respondent where the Complainant failed to proffer evidence that any alleged protected activity contributed to his discharge for violating a workplace rule and policy by making threatening comments directed at a co-worker. The Complainant had become irate when a co-worker had not provided information the Complainant believed was necessary to keep trains moving. The Complainant argued that as yardmaster he was responsible for the safe and efficient operation of train movement. The ARB, however, found that the Complainant had not produced evidence “that a delay in moving a particular train would have endangered safety in the terminal operations or cause any hazardous condition.” Slip op. at 5. The Complainant also argued that he engaged in protected activity “just by being an employee under the FRSA and by moving interstate commerce through the terminal.” The ARB stated that “ [t]he FRSA, however, still requires an employee to prove the specific elements of a complaint.” Id. at 5-6. The ARB found that the Complainant had “offered no evidence that could prove that he engaged in protected activity or that the activity he did claim contributed to his discharge.“ Id.
Williams v. D.L.F., Inc., ARB No. 2015-0089, ALJ No. 2013-STA-00027 (ARB Apr. 5, 2019) (Order Dismissing Petition for Review)
Casenote(s):
BANKRUPTCY; ARB APPEAL DISMISSED WHERE ARB LEARNED OF APPARENT CLOSURE OF BANKRUPTCY PROCEEDINGS IN 2016, AND WHERE PARTIES DID NOT RESPOND TO ARB’S 2019 ORDER TO SHOW CAUSE WHY STAA APPEAL SHOULD NOT BE DISMISSED FOR FAILURE TO PROSECUTE
In Williams v. D.L.F., Inc., ARB No. 2015-0089, ALJ No. 2013-STA-00027 (ARB Apr. 5, 2019), the ARB was informed in early 2016 by the Respondent of its bankruptcy filing; the Respondent requested that the ARB close the STAA case without prejudice until the automatic bankruptcy stay was terminated. In 2019, having been provided no further information from the parties, and learning from public records that the bankruptcy proceeding may have been closed or otherwise terminated in September 2016, the ARB issued to the last known addresses of the parties an Order to Show Cause why the STAA appeal should not be dismissed for failure to prosecute. Receiving no response, the ARB dismissed the matter, noting that the ALJ’s decision had now become the Secretary’s final order in the case. The ARB noted that an automatic stay ordinarily terminates upon case closure of the bankruptcy proceeding, citing 11 U.S.C. § 362(c)(2)(A).
Barr v. CTL Transportation, LLC, ARB No. 2018-0034, ALJ No. 2014-STA-00022 (ARB Apr. 1, 2019) (Order Dismissing Interlocutory Appeal)
Casenote(s):
INTERLOCUTORY APPEAL; WHERE ALJ ISSUES DECISION PRIOR TO ARB RULING ON REQUEST FOR INTERLOCUTORY APPEAL OF PROCEDURAL ORDERS, AND THE ALJ’S DECISION IS NOT TIMELY APPEALED, THE ALJS’ DECISION BECOMES FINAL BY OPERATION OF LAW, AND THE ARB IS DEPRIVED OF JURISDICTION TO CONSIDER EARLIER REQUEST FOR INTERLOCUTORY APPEAL
In Barr v. CTL Transportation, LLC, ARB No. 2018-0034, ALJ No. 2014-STA-00022 (ARB Apr. 1, 2019), the ARB dismissed the Complainant’s pending interlocutory appeal of an ALJ’s procedural orders where, in the interim, an ALJ to whom the matter had been reassigned had issued a Decision and Order Dismissing the Complaint, and the ALJ’s decision was not timely appealed. The ARB found that the ALJ’s decision had become the final decision of the Secretary by operation of law, citing 29 C.F.R. § 1978.110(a), (b). In the alternative, the ARB held that even if it had not lost jurisdiction, the Complainant’s interlocutory appeal of discretionary and procedural rulings by the ALJ did not raise exceptional circumstances suitable for interlocutory review.