USDOL/OALJ Reporter: ARB Decision Caselist - May 2013

PROTECTED ACTIVITY; SUBSTANTIAL EVIDENCE SUPPORTED ALJ�S FINDING THAT COMPLAINANT DID NOT HAVE A REASONABLE BELIEF THAT THE ACTION SHE REFUSED TO TAKE WAS A SOX VIOLATION; COMPLAINANT�S ACTUAL CONCERN WAS VIOLATION OF COMPANY POLICY

In Dampeer v. Jacobs Technology - Engineering and Science Group , ARB No. 12-006, ALJ No. 2011-SOX-33 (ARB May 31, 2013), the ARB affirmed the ALJ's determination that the Complainant failed to demonstrate that she engaged in protected activity under the SOX. In June 2010, the Complainant refused to verify a job title or coding change on an employee's personnel profile because she believed it would be against company policy. Later, in August 2010, the Complainant's supervisor informed her that the employee's personnel file was part of an internal company "Sarbanes-Oxley" audit and asked the Complainant to verify the employee's job title or coding change, after assuring the Complainant that it was not against company policy to do so. The Complainant again refused, testifying that she did so because she still believed it would be against company policy and also because she believed to alter a file subject to a "Sarbanes-Oxley" audit would be illegal. Subsequently, the Complainant lost her job as part of a company reduction in force. The ALJ found that the Complainant failed to establish that her refusal to verify the job profile was based on an actual subjective or objective reasonable and genuine belief that the verification would constitute a violation of any conduct prohibited by SOX Section 806. The ALJ noted that the Complainant's initial concern in June 2010 was only over potentially violating an internal company policy, and that it was not until two months later that she alleged any concern that the verification would constitute a SOX violation. Given this background, the ALJ was not convinced of the reasonableness of the Complainant's alleged concern that to do so would constitute a SOX violation. The ARB found that this was a close case, but that substantial evidence supported the ALJ's finding that the Complainant's actual concern about verifying the job title or coding change pertained to an internal company policy issue, not to a SOX violation concern.

ARB REVIEW; ISSUES RAISED IN PERFUNCTORY MANNER WITHOUT DEVELOPED ARGUMENT ARE DEEMED WAIVED

In Administrator, Wage and Hour Div., USDOL v. Global Horizons, Inc. > , ARB No. 11-058, ALJ Nos. 2005-TAE-1, 2005-TLC-6 (ARB May 31, 2013), the Respondents sought an ALJ hearing on the WHD Administrator's findings that the Respondents were jointly and severally liable for back pay, impermissible deductions, and civil penalties under the employee protection provisions of the H-2A temporary agricultural worker program. The ALJ consolidated a hearing on ETA's related debarment proceedings. The ALJ granted summary decision in favor of the Administrator because many factual allegations had been deemed admitted by the Respondent due to three sets of discovery sanctions, and because the Respondent had failed to create a genuine issue of material fact on the other allegations. The ALJ awarded $134,791.78 in back pay, $17,617.52 in impermissible deductions, and $194,400 in civil penalties damages, along with pre- and post-judgment interest.

On appeal, the Respondent claimed generically in one or two sentences of its appellate brief that the ARB should review the ALJ's sanctions findings. The ARB found that these few sentences were insufficient for an appeal of the ALJ's detailed sanctions orders.

The Respondents� appeal of the summary decision order focused mostly on the claim that the Respondent company's president was not an employer under the regulations and is not personally liable. Because the ALJ's sanctions orders were central to his finding of coverage of the president, and the Respondent company did not adequately dispute the ALJ's sanctions orders, and did not raise the issue in its petition for ARB review, the ARB found that the issue was waived. The ARB also found the issue waived because it was not adequately briefed on appeal, and because the president waited several years to raise the issue despite the president being named an employer in both WHD's determination and in ETA's notice of debarment.

The Respondents� other challenges to the ALJ's findings on wages, deductions, transportation expenses, and retaliation were all also rejected by the ARB, largely based on the Respondents failure to adequately raise arguments. The ARB refused to consider another ALJ's legal conclusions in another case involving different workers and a different H-2A contract.

CONTRIBUTING FACTOR ANALYSIS; CHAIN OF EVENTS MAY SUBSTANTIATE

CLEAR AND CONVINCING EVIDENCE ANALYSIS

In Hutton v. Union Pacific Railroad Co. , ARB No. 11-091, ALJ No. 2010-FRS-20 (ARB May 31, 2013), the Complainant worked for the Respondent as a brakeman and switchman. He reported a work-related injury, and was referred to the company's Vocational Rehabilitation Program (VRP). After the Complainant found a new job as a dispatcher trainee with a different railroad, but before he started work at that new job, the Respondent notified the Complainant that it could accommodate his medical restrictions on an engineer position. To qualify the Complainant was told that he needed to take some classes and pass a set of exams. The Complainant did not commit to the exams because he believed that the exams were voluntary under the company's return to work program, he was already involved in the VRP program, and he knew that he lacked the necessary seniority to obtain an engineer position. The Complainant was then directed to take the exams because he could work as an engineer at some future date. The Complainant was also told to resign because he had accepted another position. The Complainant emailed back that he would not be able to attend the classes because of his work obligations, and complained that he had only one day notice of an exam. The Respondent investigated the failure to take the exam, and the local union requested a postponement of the hearing because the Complainant was out of the state and would not return until the next month. The Respondent then sent a notice that it was disciplining the Complainant for missing the exam, followed by second notice that it was terminating his employment for failure to attend the investigation hearing.

The Complainant filed an FRSA complaint. After a hearing, the ALJ dismissed the case because he found that the Complainant's injury report was not a contributing factor in the Respondent's decision to terminate his employment. The ALJ ruled that the Complainant's "chain of events" argument could not sustain a finding of contributing factor under the FRSA. The ALJ observed the lack of animosity against the Complainant for reporting his injury, found that under the CBA failure to attend a hearing was grounds for termination, and that such a termination was the Respondent's prerogative.

Contributing Factor Analysis

The ARB held that the ALJ erred both in his application of the contributing factor analysis and in his finding that the termination comported with the CBA. The ARB wrote:

   Although the ALJ stated that the "chain of events" leading to Hutton's termination would likely never have occurred had he not reported his injury, the ALJ determined that this was not the test for contributory factor under the FRSA. ... This was error. The ARB has repeatedly ruled that under certain circumstances a "chain of events" may substantiate a finding of contributory factor. Compounding his error, the ALJ determined that no witness demonstrated "animosity" against Hutton, suggesting that Hutton was required to prove retaliatory animus or motive. Neither motive nor animus is a requisite element of causation as long as protected activity contributed in any way � even as a necessary link in a chain of events leading to adverse activity.

   Causation or "contributing factor" in a FRSA whistleblower case is not a demanding standard. The FRSA expressly adopts the standard of proof applicable to AIR-21 whistleblower cases. The "AIR-21 burden-shifting framework that is applicable to FRSA cases is much easier for a plaintiff to satisfy than the McDonnell Douglas standard." As the Eleventh Circuit reasoned in the context of the nuclear whistleblower law upon which AIR-21 was based: "For employers, this is a tough standard, and not by accident. Congress appears to have intended that companies in the nuclear industry face a difficult time defending themselves." "The 2007 FRSA amendments [adopting AIR-21's contributing factor standard] must be similarly construed, due to the history surrounding their enactment."

   The FRSA's legislative history ... reveals Congress's intent to comprehensively address the problem of railway retaliation for occupational injury reporting. Congress's adoption in 2007 of the comparatively lower contributory factor standard reflects congressional intent to promote effective enforcement of the Act by making it easier for employees to prove causation. A "contributing factor" includes "any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision." The contributing factor standard was "intended to overrule existing case law, which required that a complainant prove that his protected activity was a 'significant,' �motivating,' 'substantial,' or �predominant' factor" in a personnel action. Therefore, a complainant need not show that protected activity was the only or most significant reason for the unfavorable personnel action, but rather may prevail by showing that the respondent's "reason, while true, is only one of the reasons for its conduct, and another [contributing] factor is the complainant's protected" activity. Indeed, the Third Circuit recently held that the 2007 FRSA amendments adopting the contributing factor standard for FRSA whistleblower complaints reflects Congress's intent to be "protective of plaintiff-employees."

USDOL Reporter at 6-8 (footnotes omitted). The ARB held that if the Complainant had not reported his injury, he "would never have been urged and/or required to comply with the provisions of three separate �return to work� programs � programs specially created and offered by the employer to address work-place injury. Had he not run afoul of the confusing, if not contradictory, dictates of the several programs, Union Pacific would not have disciplined him." Id . at 9-10. The Board noted that the Respondent's return to work programs, one of which was apparently voluntary while the other was mandatory, and which were ostensibly set up to address the needs of ill and injured railroad employees, must be operated reasonably and in good faith to avoid harming and thereby discriminating against the very employees they were designed to serve. The Board stated that the circumstances of the instant case were analogous to the facts of DeFrancesco v. Union RR Co. , in which the ARB held that if DeFrancesco had not reported his injury, the company would not have conducted the investigation that resulted in the discipline and therefore the injury report was a contributing factor in the suspension. The ARB wrote:

   Despite correctly identifying evidence that supported a contributing factor finding35 � the Respondent's knowledge of the protected activity, temporal proximity, and evidence of the Respondent's arbitrary personnel decisions � the ALJ ultimately ignored this evidence and ruled, in effect, that the Respondent need only articulate a legitimate business reason for its action to prevail. Without adequately considering the totality of the circumstances,36 the ALJ determined that the Respondent had a legitimate business reason to terminate Hutton, which the ALJ declined to "second-guess." D. & O. at 12. In so doing, he short-circuited the statutory burden of proof by concluding that it was the Respondent's prerogative, "in the usual course of business," to terminate Hutton and leaving it at that. The ALJ appeared to base his dismissal solely on a finding that Hutton committed a dismissible offense (failure to attend investigative hearing), similar to the "legitimate business reason" burden of proof analysis that does not apply to FRSA whistleblower cases.37 Under the FRSA whistleblower statute, the causation question is not whether a respondent had good reasons for its adverse action, but whether the prohibited discrimination was a contributing factor "which, alone or in connection with other factors, tends to affect in any way" the decision to take an adverse action.

USDOL/OALJ Reporter at 11-12 (footnotes omitted). The ARB also found that under the CBA, because formal, reasonable efforts had been made to obtain a postponement of the investigatory hearing, the CBA did not support the Respondent's decision to terminate the Complainant's employment.

Affirmative Defense - Clear and Convincing Evidence Standard

The ARB remanded for the ALJ to consider the affirmative defense of proving by clear and convincing evidence that it would have terminated the Complainant absent his protected activity. The ARB instructed:

   A respondent's burden to prove the affirmative defense under FRSA is purposely a high one. ...FRSA whistleblower cases are governed by the legal burdens set out in AIR 21, 49 U.S.C.A. § 42121(b). The AIR-21 burdens of proof were modeled after the burdens of proof provisions of the 1992 amendments to the Energy Reorganization Act, 42 U.S.C.A. § 5851.40 Congress intentionally drafted the burdens of proof contained in the 1992 ERA amendments � the same as those now contained in FRSA � to provide complainants a lower hurdle to clear than the bar set by other employment statutes: "Congress desired to make it easier for whistleblowers to prevail in their discrimination suits . . . ." In addition to lowering a complainant's burden, Congress also raised the respondent's burden of proof � once an employee demonstrates that protected activity was a contributing factor, the burden is on the employer to prove by clear and convincing evidence that it would have taken the same action absent the employee's protected activity.

USDOL/OALJ Reporter at 13 (footnotes omitted).

Concurring Opinion

One member of the ARB agreed to the remand only because he believed that clarification from the ALJ was needed before a causation finding could be made by the ARB. This member indicated that the ALJ may have intended to explain that there was a complete break in the chain of events such that reporting of the injury dropped out of the causation line leading to employment termination. The concurring member wrote:

   To the extent that the majority opinion suggests that the reporting of an injury automatically and inextricably latches onto every personnel decision that "would never have happened" but for the reporting of the injury, I respectfully disagree. Respectfully, I also disagree with the majority that this case resembles other Board cases cited by the majority where the reporting of an injury was "inextricably intertwined" with the termination of employment. In DeFrancesco v. Union R.R. Co. , ARB No. 10-114, ALJ No. 2009-FRS-009, slip op. at 3 (ARB Feb. 29, 2012), a case cited by the majority, the employee's suspension was directly intertwined with his protected activity because the employer investigated the reason for the reported injury and blamed the employee for the injury. In Smith v. Duke Energy Carolinas, LLC , ARB No. 11-003, ALJ No. 2009-ERA-007, slip op. at 4 (ARB June 20, 2012), the employee reported a rule violation and was fired for reporting the violation late. Similarly, in Henderson v. Wheeling & Lake Erie Railway , ARB No. 11-013, ALJ No. 2010-FRS-012, slip op. at 4 (ARB Oct. 26, 2012), the employee was also fired for an allegedly late reporting of an injury Smith , and Henderson , the protected activity and adverse action were inextricably intertwined because the basis for the adverse action could not be explained without discussing the protected activity. In this case, if the Respondent fired Hutton solely because he failed to comply with necessary steps to accommodate his return to work, it is not necessary to discuss that he reported his injury. Therefore, the reporting of the injury and the adverse action are not inextricably intertwined.

   Lastly, I appreciate but disagree with the majority's characterization of the burden of proof on remand, essentially repeating the standard stated in DeFrancesco . The majority requires the Respondent to prove that it would have disciplined Hutton "even if he had not reported his injury." The DeFrancesco standard may be an impossible standard in cases like this one unless a respondent could travel back in time and change history. Moreover, without more careful analysis, it is not clear to me whether Congress intended the DeFrancesco standard in the FRSA whistleblower statute. While resembling other whistleblower statutes, FRSA has the unique aspect of protecting employees who report injuries but then the employees and employers necessarily interact often for days, months, or even years to work through medical care issues and work accommodations in addressing the injury. Nevertheless, I reserve further comment because this issue is not ripe. In my view, on remand, the ALJ and the parties may fully address the burden of proof required in FRSA cases like this one. If an appeal is filed, the Board can address this issue at that time.

USDOL/OALJ Reporter at 15-16 (footnotes omitted).

ADVERSE EMPLOYMENT ACTION; SUBSTANTIAL EVIDENCE SUPPORTED ALJ�S FINDING THAT IT WAS RESPONDENT�S BEHAVIOR RATHER THAN A RESIGNATION BY THE COMPLAINANT THAT ENDED THE EMPLOYMENT RELATIONSHIP; RESPONDENT�S DEPARTURE FROM NORMAL PROTOCOL

In Nagle v. Unified Turbines, Inc. , ARB No. 13-010, ALJ No. 2009-AIR-24 (ARB May 31, 2013) (reissued with corrected caption on June 12, 2013), the ARB affirmed the ALJ's finding that it was the Respondent's behavior rather than a resignation by the Complainant, that ended the employment relationship. The Respondent sent the Complainant home following a work altercation. When the Complainant called one of the Respondent's owners to talk about what happened, he got the owner's voicemail and left a message. The owner never returned the call. The owner failed to call the Complainant back even after the owner found out that the Complainant thought he had been fired, and, that another employee was the aggressor in the altercation. The ALJ found that it was the Respondent's protocol to call employees if they did not come to work as planned, and that the Respondent departed from this protocol in this case and decided instead to interpret the Complainant's failure to report for work on the following work day as a voluntary quit. The ALJ reasoned that it was thus the Respondent's behavior that ended the employment relationship. The ARB found that substantial evidence supported the ALJ's findings of fact, and that the Respondent terminated the Complainant under controlling ARB precedent ( Minne v. Star Air, Inc. , ARB No. 05-005, ALJ No. 2004-STA-26 (ARB Oct. 31, 2007); Klosterman v. E.J. Davies, Inc. , ARB No. 08-035, ALJ No. 2007-STA-19 (ARB Sept. 20, 2010)).

CAUSATION; TEMPORAL PROXIMITY AND CHAIN OF CAUSAL LINKS SUFFICIENT TO PROVE THAT PROTECTED ACTIVITY WAS A CONTRIBUTING FACTOR IN DISCHARGE

In Nagle v. Unified Turbines, Inc. , ARB No. 13-010, ALJ No. 2009-AIR-24 (ARB May 31, 2013) (reissued with corrected caption on June 12, 2013), the ARB affirmed the ALJ's finding that the Complainant proved by a preponderance of the evidence that his protected activity under AIR 21 was a contributing factor to his discharge. Temporal proximity between the protected activity and termination was a factor. In addition, there were identifiable links in a chain of causation from the protected activity to the adverse action establishing that the Complainant's protected activity was a factor in the termination of his employment. The Complainant had reported to the Respondent that a coworker was abusing prescription narcotic medication while on the job and was drug dealing outside of the Respondent's shop. This was protected activity. The ALJ reasoned that the reports of the drug dealing were intertwined with the Complainant's reports about the coworker's problem with drugs. The Respondent informed the coworker that the Complainant was the source of the complaint. The coworker started an altercation with the Complainant. It was the altercation that caused one of the Respondent's owners to angrily order the Complainant to leave the premises, and that caused the owner not to return the Complainant's post-altercation phone call and instead let the Complainant believe that he had been fired. The ARB found that substantial evidence supported the ALJ's findings of fact regarding causation.

REINSTATEMENT; ARB AFFIRMS ALJ�S ORDER OF REINSTATEMENT WHERE RESPONDENT DID NOT INTRODUCE ANY EVIDENCE OR ARGUMENT BEFORE THE ALJ DEMONSTRATING THAT REINSTATEMENT WAS NOT APPROPRIATE

In Nagle v. Unified Turbines, Inc. , ARB No. 13-010, ALJ No. 2009-AIR-24 (ARB May 31, 2013) (reissued with corrected caption on June 12, 2013), the Respondent argued on appeal that a lack of a suitable job opening or hostility between the parties warranted staying the ALJ's order of reinstatement. The ARB noted that it has recognized that circumstances may exist in which reinstatement is impossible or impractical and alternative remedies are necessary. In the instant case, however, the Respondent had not argued while the matter was before the ALJ that reinstatement was not appropriate in this case. Nor had the Respondent introduced any evidence to support such an argument. The ARB stated that it will not consider arguments a party did not, but could have made before the ALJ, and affirmed the ALJ's order of reinstatement.

SCOPE OF ARB REVIEW AUTHORITY; ARB IS NOT AUTHORIZED TO RULE ON CONSTITUTIONALITY OF DOL REGULATIONS

In Nagle v. Unified Turbines, Inc. , ARB No. 13-010, ALJ No. 2009-AIR-24 (ARB May 31, 2013) (reissued with corrected caption on June 12, 2013), the Respondent argued on appeal that the regulation at 29 C.F.R. § 1979. 109(c) requiring that an ALJ's order of reinstatement be effective immediately is unconstitutional. The ARB declined to address this issue, stating it is not authorized to rule on the constitutionality of Department of Labor regulations. See Secretary's Order No. 2-2012 (Delegation of Authority and Assignment of Responsibility to the Administrative Review Board), 77 Fed. Reg. 69378 (Nov. 16, 2012) ("The Board shall not have jurisdiction to pass on the validity of any portion of the Code of Federal Regulations that has been duly promulgated by the Department of Labor and shall observe the provisions thereof, where pertinent, in its decisions.").

[STAA Whistleblower Digest IV A 2 d]
EMPLOYER�S KNOWLEDGE OF PROTECTED ACTIVITY; SUMMARY DECISION NOT WARRANTED WHERE THERE WAS A GENUINE ISSUE OF MATERIAL FACT ABOUT WHETHER COMPLAINANT SPOKE TO RESPONDENT�S PRESIDENT AND CO-OWNER ABOUT SPEEDING

In White v. American Mobile Petroleum, Inc. , ARB No. 12-058, ALJ No. 2011-STA-32 (ARB May 31, 2013), the ALJ granted summary decision on the ground that the company president/co-owner was not aware of the Complainant's protected activity at the time that he fired the Complainant. The ARB reversed, finding that viewing the record in the Complainant's favor showed a genuine issue of material fact about whether the Complainant complained to the president/co-owner about being asked by his trainer to exceed the speed limit. Thus, the granting summary decision was error. One member of the Board concurred, finding that there was no admissible evidence in the record that the trainer spoke to the president/co-owner about any of the Complainant's alleged safety complaints, but stating that he would nonetheless remand because the Complainant should have been permitted to depose the trainer before the ALJ ruled on the Respondent's motion for summary decision.

Summary denial of Complainant's motion for reconsideration.

Appeal to the ARB stayed under the Bankruptcy Code's automatic stay provision, 11 U.S.C.A. � 362(a)(1)(2013). The ARB ordered the Respondent to provide status reports on the bankruptcy proceedings every 60 days and to notify the ARB when the bankruptcy proceedings are concluded.

The ARB affirmed the ALJ's finding that the Complainant failed to prove that his protected activity contributed to the company's decision to terminate his employment. Although there was conflicting testimony, the ARB deferred to the ALJ finding that the Respondent's witnesses were more credible that the Complainant.

MOTION FOR RECONSIDERATION OF ARB�S FINAL DECISION; FILING OF PETITION FOR REVIEW IN COURT OF APPEALS EXTINGUISHES ARB�S AUTHORITY TO RECONSIDER

In Leon v. Securaplane Technologies, Inc. , ARB No. 11-069, ALJ No. 2008-AIR-12 (ARB May 22, 2013), the Complainant filed a motion with the ARB requesting reconsideration of its Final Decision and Order. Upon learning that the Complainant had petitioned the Ninth Circuit Court of Appeals for review of the Board's decision prior to the filing of the request for reconsideration, the Board dismissed the motion for reconsideration. The Board held that its authority to reconsider was pre-exempted by the Complainant's appeal to the appellate court.

The ARB summarily affirmed the ALJ's Decision and Order Granting Relief. The ALJ had found that the Complainant's protected activity of complaining to So. Cal. Precision Aircraft's (SCPA) quality control manager about SCPA's FAA violations and of providing copies of a letter describing some of those concerns to the FAA and SCPA employees contributed to the Complainant's discharge. The ALJ also found that Norton Aircraft Maintenance Services, Inc. was liable as a successor in interest to SCPA. The ARB found that substantial evidence supported the ALJ's essential factual findings, and those findings supported his ultimate conclusion.

MOTION FOR STAY OF ALJ�S REINSTATEMENT ORDER; ARB APPLIES FOUR-PART TEST FOR DETERMINING WHETHER AGENCY ACTION SHOULD BE STAYED

MOTION FOR STAY OF ALJ�S REINSTATEMENT ORDER; RESPONDENT�S ARGUMENT THAT IT WAS NOT ON NOTICE THAT REINSTATEMENT WAS A POTENTIAL REMEDY FOUND TO BE MERITLESS

MOTION FOR STAY OF ALJ�S REINSTATEMENT ORDER; FACT THAT POSITION IS NOW FILLED BY ANOTHER EMPLOYEE IS NOT DETERMINATIVE AS THE ONLY REQUIREMENT IS REINSTATEMENT TO THE SAME SENIORITY THAT THE COMPLAINANT WOULD HAVE HAD BUT FOR THE SOX VIOLATION

In Johnson v. U.S. Bancorp , ARB No. 13-014, ALJ No. 2010-SOX-37 (ARB May 21, 2013), the ALJ found in the Complainant's favor and ordered relief, including immediate reinstatement of the Complainant with the same seniority he would have had but for the Respondent's SOX violation. The Respondent filed with the ARB a motion for a stay of the ALJ's reinstatement order arguing that it lacked fair notice regarding the potential for reinstatement as a remedy and that it was not afforded the opportunity to be heard on the issue. The ARB applied its four-part test for determining whether agency action should be stayed. First, the ARB found that although its review of the merits may or may not lead to a different conclusion, it was not persuaded by the Respondent's arguments that it would likely prevail on appeal. Second, the ARB found meritless the Respondent's argument that it was denied due process based on a lack of fair notice of reinstatement as a possible remedy. The ARB noted that SOX and the implementing regulations state that relief under SOX 'shall� or �will� include reinstatement. Moreover, the Respondent had filed a motion with OALJ to stay OSHA's preliminary order of reinstatement. Both the Complainant and the OSHA Administrator filed responses opposing the motion, and the Complainant later filed a motion to compel reinstatement. An ALJ denied the motion. The ARB was not convinced by the Respondent's argument that there had been waiver of reinstatement as a remedy, but reserved further consideration of that issue when it reviews the appeal on the merits. Third, the ARB did not find that the Respondent established that it would suffer irreparable harm due to the hostility of the parties if a stay was not granted. The ARB stated that there must be actual and not theoretical irreparable harm. The Respondent argued that reinstatement was impossible because another employee now holds the Complainant's former position. But the ARB held that SOX merely requires that the Complainant be reinstated with the same seniority that he would have but for the discrimination. The Respondent requested an opportunity to offer evidence before the ARB to demonstrate the hostility that exists between the parties and the irreparable harm that reinstatement would occasion; but the ARB held that the Respondent had not made a showing under 29 C.F.R. § 178.54(c) (which the ARB relies on when considering requests to supplement the record) sufficient to merit consideration of new evidence on appeal. Finally, the ARB found that the public interest militates against a stay of the ALJ's reinstatement order.

ARB summarily affirmed ALJ's finding, based on substantial evidence, that the Complainant failed to establish that her protected activity was a motivating factor in the decision to terminate her employment.

APPEAL SEEKING RULING ON LIABILITY FOR UNDERPAYMENT OF WAGES NOT RIPE FOR ARB REVIEW WHERE WAGE AND HOUR DIVISION HAD NOT ISSUED AN ENFORCEMENT OR OTHER ORDER IMPOSING SUCH LIABILITY

In Town of Berryville Wastewater Treatment Plant , ARB No. 11-081 (ARB May 7, 2013), the Petitioner sought ARB review of a WHD determination that portions of work at the Petitioner's project required the payment of Davis-Bacon Act wages at the heavy construction wage rate. The ARB found that the petition failed to raise a challenge to the WHD's final ruling that the work involved heavy construction. Rather, the petition focused on the issue of potential liability for underpayment of wages. The ARB found that the WHD's determination on appeal found only that the heavy construction wage rate applies to portions of the Town of Berryville project. The ARB found that there was no enforcement order before it or any order applying the wage rates to any particular subcontractor employees or any specific laborers or determining the issue of liability. Hence, the ARB ruled that � because there is no WHD order addressing the financial responsibility for any such increase in wages, the request in its Petition is not ripe for review. See, e.g., In Re: Int'l Ass'n of Machinists , ARB No. 11-073 (Jan. 25, 2012).� USDOL/OALJ Reporter at 3.