USDOL/OALJ Reporter: ARB Decision Caselist - May 2014

[STAA Digest V A 3]
ARB REMANDS CASE FOR FURTHER FACTFINDING BY ALJ WHERE ELEVENTH CIRCUIT HAD REJECTED ARB�S HOLDING THAT THE STAA PROTECTS A REFUSAL TO DRIVE BASED ON A REASONABLE BELIEF THAT DRIVING WOULD VIOLATE A SAFETY LAW; COURT INSTEAD HELD THAT THE STAA REQUIRES AN ACTUAL VIOLATION

In Ass't Sec'y & Bailey v. Koch Foods, LLC , ARB No. 14-041, ALJ No. 2008-STA-61 (ARB May 30, 2014), the 11th Circuit The Eleventh Circuit disagreed with the ARB's conclusion that STAA, 49 U.S.C.A. � 31105(a)(1)(B)(i) protects an employee's refusal to operate a motor vehicle where the employee reasonably believes at the time that operation of the vehicle would violate a pertinent safety law. The court held instead that Section 31105(a)(1)(B)(i) covers "only those situations where the record shows that operation of a motor vehicle would result in the violation of a regulation, standard, or order related to commercial motor vehicle safety, health, or security." Koch Foods, Inc. v. Secretary, U.S. Dept. of Labor , 712 F.3d 476 (11th Cir. 2013). On remand, the ARB stated that the 11th Circuit's decision was the law of the case), and therefore it was necessary to remand for the ALJ to determine whether an actual violation would have occurred in this case had the Complainant hauled the trailer that he believed was overweight. The ARB noted that the 11 Circuit's decision was at odds with the 2d Circuit's ruling in Yellow Freight Sys. Inc. v. Martin , 983 F.2d 1195 (2d Cir. 1993). The ARB also directed the ALJ to clarify whether the Complainant had asserted whistleblower protection under other provisions of the STAA and, if so, the ALJ's rulings on those provisions.

[STAA Digest IV A 1]
AIR21 BURDEN OF PROOF STANDARDS APPLY TO STAA, 49 U.S.C.A. � 31105 WHISTLEBLOWER COMPLAINTS

In Ass't Sec'y & Bailey v. Koch Foods, LLC , ARB No. 14-041, ALJ No. 2008-STA-61 (ARB May 30, 2014), the ARB noted that the recodification of the STAA made pursuant to the 9/11 Commission Act of 2007, Pub. L. No. 110-53, 121 Stat. 266 (Aug. 3, 2007), amended the burdens of proof standard to incorporate the AIR 21 standards set forth at 49 U.S.C.A. � 42121(b). See 49 U.S.C.A. � 31105(b)(1). The ARB reiterated its recent ruling in Beatty v. Inman Trucking Management, Inc. , ARB No. 13-039, ALJ Nos. 2008-STA-20 and 21 (ARB May 13, 2014), in which the ARB stated that

in its adoption of the AIR 21 burden of proof standards Congress replaced the McDonnell Douglas Title VII burden of proof standards and burden-shifting analytical framework applicable under STAA prior to the 2007 amendments

with a new burden of proof framework in which the complainant is initially required to show by a preponderance of the evidence that protected activity was a �contributing factor� in the alleged adverse personnel action. Should the complainant meet the �contributing factor� burden of proof, the burden shifts to the employer who is required, in order to overcome the complainant's showing, to prove by �clear and convincing evidence� that it would have taken the same adverse action in the absence of the protected conduct.

USDOL/OALJ Reporter at 4, quoting Beatty , ARB No. 13-039, slip op. at 8 (citations omitted).

ATTORNEY FEE PETITION; ARB SUMMARILY APPROVES UNOPPOSED PETITION

ATTORNEY FEE PETITION; PETITION FOR WORK BEFORE OSHA AND ALJ SHOULD BE FILED WITH THE ALJ RATHER THAN THE ARB

In Tablas v. Dunkin Donuts Mid-Atlantic , ARB Nos. 11-050, 13-091, ALJ No. 2010-STA-24 (ARB May 30, 2014), the ARB summarily approved the Complainant's unopposed petition for attorney's fees for proceedings before the ARB. The ARB noted that requested fees for work before the ALJ and OSHA were for the ALJ to determine, citing 29 C.F.R. § 1978.109(d)(1).

Approval of settlement agreement.

[STAA Digest II H 4]
SUBSTANTIAL EVIDENCE REVIEW; IF SUBSTANTIAL EVIDENCE SUPPORTS THE ALJ�S DECISION, THE ARB MUST AFFIRM EVEN IF IT MAY HAVE DECIDED THE MATTER DIFFERENTLY

In Clark v. Hamilton Hauling, LLC , ARB No. 13-023, ALJ No. 2011-STA-7 (ARB May 29, 2014), the Complainant reported problems with his assigned truck and was told to take the truck to a repair shop over the weekend. When arriving for work on Monday, the Complainant found that a cracked windshield, and possibly other repairs, had not been made. The Complainant notified his boss, who told him to drive the truck. After experiencing difficulty driving the truck, the Complainant took the truck to a state inspection station. While at the inspection station, the Complainant's boss arrived and they exchanged hostile words. The state inspector asked the Complainant to leave. The inspector found several problems with the truck. The truck was repaired and back in service the next day without the newly assigned driver reporting any problems. In the meantime, the Complainant's boss called the Complainant and left a voicemail message. The Complainant did not respond and did not return to work. The ALJ found that the Complainant established that he engaged in protected activity under the STAA, but that he did not establish that he suffered adverse action. Specifically, the ALJ found that the voicemail message informed the Complainant that a safe truck would be provided and that the driver would be welcomed back to work. On appeal, the Complainant argued that the facts showed that his boss fired him, that he was constructively discharged because his boss told him to drive or be fired, that his boss physically threatened him such that a reasonable person would have felt compelled to resign, and that the employee who drove the truck after the repairs were made was not a credible witness. The ARB found no merit to these arguments and affirmed the ALJ's findings. The ARB stated that although it may have decided the case differently, substantial evidence supported the ALJ's finding. The ARB explained substantial evidence review:

[I]n conducting our review, we must uphold an ALJ's findings of fact to the extent they are supported by substantial evidence, even if there is also substantial evidence for the other party, and even if we justifiably disagree with the finding. Bobreski v. J. Givoo Consultants , ARB No. 09-057, ALJ No. 2008-ERA-003, slip op. at 8 (ARB June 24, 2011). Substantial evidence is evidence that a reasonable person might accept to support a conclusion. Id . "[T]he determination of whether substantial evidence supports [an] ALJ's decision is not simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by other evidence or if it really constitutes mere conclusion." Id . (internal quotations and citations omitted). "A determination whether evidence is substantial on the record considered as a whole must �take into account whatever in the record fairly detracts from its weight.�" Id . (quoting Universal Camera Corp. v. NLRB , 340 U.S. 474, 488 (1951)). "�A single piece of evidence will not satisfy the substantiality test if the [adjudicator] ignores, or fails to resolve, a conflict created by countervailing evidence.�" Id . (quoting Dorf v. Bowen , 794 F.2d 896, 901 (3d Cir. 1986)).

USDOL/OALJ Reporter at 4-5. The ARB found that the ALJ had properly resolved conflicts in witness testimony, and had committed no reversible legal error. The ARB declined to reweigh the evidence. One member of the ARB dissented, noting holdings to the effect that when an employer's conduct creates ambiguity and confusion about the employee's status, the test of whether there has been a discharge "depends on the reasonable inferences that the employee could draw from the statements or conduct of the employer." USDOL/OALJ Reporter at 6 (citations omitted). This member disputed the deductions made by the ALJ about the import of the voicemail message, and found that the case presented a situation where the Employer had not made a clear statement about the Complainant's employment status � that the Complainant would have reasonably believed that he had been fired � and that because of the ambiguity created by the Employer's actions, the Respondent had the burden to prove that the Complainant had not been fired.

LIABILITY OF EMPLOYER THAT FILES AN H-1B PORTABILITY PETITION; EMPLOYEE BEARS BURDEN OF PROVING ELIGIBILITY FOR WAGES PRIOR TO ENTERING EMPLOYMENT; EMPLOYER BEARS BURDEN OF PROVING THAT IT IS NOT LIABLE FOR WAGES AFTER H-1B WORKER ENTERED EMPLOYMENT

In Gupta v. Compunnel Software Group, Inc. , ARB No. 12-049, ALJ No. 2011-LCA-45 (ARB May 29, 2014), the Prosecuting Party was an H-1B worker who had accepted employment with the Respondent pursuant to the INA's portability provisions.

Respondent's liability for wages and travel time during period between filing of portability petition with USCIS and Prosecuting Party's commencement of work; burden is on employee to establish that he was qualified to work during this period and did work during this period

The ARB affirmed the ALJ's holding that the Prosecuting Party was not entitled to back wages for the period of time prior to the date that the Respondent filed a nonfrivolous H-1B petition with the USCIS under the portability provision where the Prosecuting Party had performed no actual work for the Respondent during this time. The ARB found, however, that the ALJ erred in concluding that the prior H-1B employer's benching of the Prosecuting Party rendered him unavailable to work for the Respondent during the period between the Respondent's filing of the H-1B petition and the Prosecuting Party's commencement of work on a project for a client of the Respondent. The ARB noted that the INA's portability provision "permits an H-1B nonimmigrant to work for more than one employer so long as each employer has filed an H-1B petition on the nonimmigrant's behalf with USCIS." 8 C.F.R. § 214.2(h)(2)(i)(C). The ARB also noted that if the prior employer had been benched, the conclusion that he was not available to work for the Respondent was not valid. The ARB, however, found the ALJ's error to be harmless because the Prosecuting Party failed to prove that he had worked for the Respondent during this period of time.

The ARB found that the portability provision at 8 U.S.C. § 1184(n)(2) does not address an employer's payment obligations during the portability period. The regulations only provide that once DOL approves the LCA, the H-1B employer must pay the wage rates required under sections 655.731 and 655.732 at any time H-1B nonimmigrants are employed pursuant to the LCA. In the absence of any other legal authority, the ARB held that "it is the H-1B employee's burden to prove that he qualifies under 8 U.S.C.A. § 1182(n)(2) to work for a new employer during a portability phase and that he engaged in compensable activities for such employer." The ARB found that the ALJ's findings and the record demonstrated that the Respondent owed no wages for the period between the filing of the H-1B portability petition and the Prosecuting Party's commencement of work. The ARB, however, found that the Prosecuting Party was entitled to compensation for travel time to the client location.

Respondent's liability for wages after nonimmigrant worker entered into employment with the Respondent; burden is on employer to prove that it is excused from paying the employee

The ALJ had placed the burden on the Prosecuting Party to show that he was available for work after entering into employment for the Respondent at the client's facility. The ARB found that this was reversible error. The ARB found that the employer's continuing obligation to pay wages subject to the conditions in 20 C.F.R. § 655.731(c)(7), coupled with the employer's attestations in the LCA and H-1B petition, impose the burden on the employer to prove that it is excused from paying the employee.

    It is clear from these provisions that an H-1B employee's non-productivity caused by the H-1B employer, and particularly due to a "lack of assigned work," results in the continuing obligation to pay. If, however, during a period of non-productivity, the H-1B employee has "assigned work" duties that he is not performing, then the focus turns to the reasons that take him away from those duties. Subsection 655.731(c)(7)(i) makes clear that the employer is liable for any reason that takes the employee away from his duties "except" those specified in subsection 20 C.F.R. § 655.731(c)(7)(ii). Under 20 C.F.R. § 655.731(c)(7)(ii), to be relieved from paying wages for nonproductive periods the H-1B employer must prove: (1) the existence of conditions unrelated to the employee's employment that either; (2) took the employee away from his/her duties at his or her request and convenience, or (3) otherwise render the employee unable to work. A "condition unrelated to employment" cannot take an employee "away from his duties" if the employee has no duties. Logically, to invoke the unavailability exception to wage liability, the employer must prove that the H-1B employee had assigned work. Then, the employer must prove that the worker requested to be away from those duties for reasons unrelated to work or that conditions unrelated to work rendered him "unable" to do those assigned duties.

USDOL/OALJ Reporter at 16 (footnote omitted; this footnote noted second basis for excusing an H-1B employer's liability for back wages based on conditions unrelated to employment which render the non-immigrant unable to work).

Reviewing the facts of the case, the ARB found that there was no evidence in the record that the Prosecuting Party had any assigned duties during a nonproductive period. Evidence that the Respondent kept in contact with the Prosecuting Party about projects and that the Prosecuting Party had interviewed for a position did not show that the Prosecuting Party had assigned duties. In a footnote, the ARB expressed concern that that it appeared that the Respondent was acting more like a job placement service or "job shop" than an employer; the ARB, however, found that it was not presented with the question of whether the Respondent was violating the H-1B program by only bringing in H-1B workers to meet possible workforce needs.

FRINGE BENEFITS; H-1B WORKER IS ENTITLED TO FRINGE BENEFITS ON THE SAME BASIS AND UNDER THE SAME CRITERIA THE EMPLOYER OFFERS TO U.S. WORKERS

In Gupta v. Compunnel Software Group, Inc. , ARB No. 12-049, ALJ No. 2011-LCA-45 (ARB May 29, 2014), the ALJ denied fringe benefits to the Prosecuting Party (who was the H-1B worker) for the period he was in nonproductive status. The ARB found that under 20 C.F.R. § 655.731(c)(7)(ii), the Prosecuting Party was entitled to all fringe benefits afforded U.S. workers.

INTEREST ON BACK PAY AWARD

The H-1B worker to whom back pay is owed under the LCA regulations is entitled to interest on the back pay award. Where that worker was the Prosecuting Party, he did not waive entitlement to interest where he had preserved that right by requesting a hearing and seeking additional damages. Gupta v. Compunnel Software Group, Inc. , ARB No. 12-049, ALJ No. 2011-LCA-45 (ARB May 29, 2014) (Editor's note: the ARB decision is not clear on this point, but apparently the Respondent was contending that there had been a waiver because the Prosecuting Party had accepted a $6,976.00 back wage payment at the end of the WHD investigation.).

LCA RETALIATION CLAIM; ALJ PRODUCED UNREVIEWABLE DECISION BY APPLYING STANDARDS FOUND IN ERA AND ENVIRONMENTAL WHISTLEBLOWER REGULATION AT 29 C.F.R. PART 24; CORRECT STANDARD REQUIRES BRIEFING; BRIEFING, HOWEVER, MAY BE UNNECESSARY IF PROSECUTING PARTY CANNOT SHOW WHAT VIABLE RELIEF WOULD BE AVAILABLE UNDER RETALIATION CLAIM NOT ALREADY RECEIVED UNDER OTHER LCA REGULATORY PROVISIONS

In Gupta v. Compunnel Software Group, Inc. , ARB No. 12-049, ALJ No. 2011-LCA-45 (ARB May 29, 2014), the ALJ decided, in the absence of explicit regulatory guidance, to apply the standards found in 29 C.F.R. Part 24 for nuclear and environmental whistleblower cases to the Prosecuting Party's LCA retaliation claim under 8 U.S.C. § 1182(n)(2)(C)(iv). The ALJ applied the Title VII framework, analyzed whether the Prosecuting Party established a prima facie case, and applying shifting burdens of proof. The ARB found the ALJ's rulings unreviewable because Part 24 contains different standards for ERA and environmental whistleblower cases. The ARB remanded for the parties to brief the appropriate burdens under Section 1182(n)(2)(C)(iv). The ARB, however, indicated that the ALJ should first consider whether the Prosecuting Party is seeking, and is entitled to, any viable remedies under his retaliation claim that he had not already received under his claim for back wages and other relief under other provisions of the LCA regulations.

VARIANCE FROM CBA WAGES FOR TELECOMMUNICATIONS WORKERS DENIED WHERE PETITIONER FAILED TO SHOW THAT WAGE DEFERENTIALS WERE BASED ON EMPLOYEES IN THE LOCALITY PERFORMING SERIVCES SIMILAR TO THOSE IN THE CBA

In BAE Systems , ARB No. 12-056, ALJ No. 2012-CBV-1 (ARB May 19, 2014), the Department of the Navy sought a variance from the collectively-bargained wages for telecommunications services in a contract between BAE Systems, Incorporated (BAE), and the International Brotherhood of Electrical Workers, Local 1260 (Union). The ALJ denied the variance. The ARB affirmed the ALJ's decision, finding that "[t]he Navy advances its substantial variance argument principally on wage differentials for each of 17 CBA job classifications and very little else. A substantial variance showing requires not only evidence of a wage differential between CBA wages and other local rate wages, but also a prior showing that other employees in the locality are performing services similar in character to those in the CBA. The ALJ correctly determined in this case that the Navy's evidence falls short. While the Navy sought to advance its case at hearing and in its opening brief before the ARB that a substantial variance existed with respect to ET IIs, the Navy failed to provide any evidence (and failed to advance any argument in its brief to the ARB) that other employees in the locality were performing similar services in character for the remaining 16 CBA job categories, and thus failed to show a relevant mix of rates to determining a prevailing wage. For these reasons, the Navy failed to meet its burden under SCA section 4(a)." USDOL/OALJ Reporter at 6.

On appeal, the Navy argued that the ALJ erred in rejecting comparison of the position descriptions in the SCA and Salary.com data with position descriptions for labor classifications in the CBA. The ARB noted first that the Navy did not provide position descriptions for four of the labor classifications in the CBA, and such absence of evidence foreclosed providing a substantial variance for those positions. The Navy next argued that that workers under the CBA job classifications perform work that is the same or similar to that of other workers in the locality. The ARB noted that the Navy had only advanced that argument as to one classification, but advanced that argument solely as to one classification for an Electronics Technician II (ET II) position. The ARB found that the Navy waived the argument as to the remaining 12 classifications as it had not advanced that argument as to those positions in its brief (or even before the ALJ). The ARB further found, that even if there was no waiver, the ALJ did not find that the data presented by the Navy from Salary.com were sufficient to establish a prevailing wage rate. Citing the U.S. Department of Labor Prevailing Wage Resource Book, 4(c) Hearings, Administrative Hearings Regarding Application of Section 4(c), the ARB found that "the use of Salary.com data would not fall within the scope of other relevant wage data anticipated under the regulations, and indeed Salary.com data has been characterized as an �informal source[] and estimate[].�" USDOL/OALJ Reporter at 8 (quoting Beyond the Payment Fairness Act: Mandatory Wage Disclosure Laws � A Necessary Tool for Closing the Residual Gender Wage Gap ," 50 Harv. J. on Legis. 385, 432 (Summer 2013); see also "Money, Sex, and Sunshine: A Market-Based Approach To Pay Discrimination ," 43 Ariz. St. L. J. 951, 990 (Fall 2011) ("Websites such as salary.com and glassdoor.com collect anonymous information about compensation and benefits from employees, but this information is incomplete and often inaccurate.")).

Turning to the Navy's central argument � that there is a similarity of services in the locality for ET IIs � the ARB noted that this category of workers appeared to represent the vast majority of CBA workers at issue. The ARB found that substantial evidence supported the ALJ's finding that ET IIs under the CBA perform duties unique to the contract.

The Navy argued that that the ALJ erred in failing to give great weight to the SCA Area Wage Data for determining the prevailing wage in the locality. The ARB found that the ALJ correctly determined that the Navy failed to demonstrate a comprehensive mix of rates that show a prevailing wage in the locality. The ARB noted that All Agency Memorandum No. 166 (Oct. 8, 1992) "does not limit a comparison to the SCA area wage data in assessing the prevailing wage in a locality for purposes of a substantial variance proceeding. Instead the DOL recognizes that the SCA is a "minimum monetary compensation required to be paid to the various employees . . . usually listed in the wage determination as hourly wage rates." DOL Prevailing Wage Resource Book 2010 at 3." USDOL/OALJ Reporter at 11. The ARB found that the Navy had not presented any other wage rates from CBAs or civil wage rates for similar services in the locality, but only argued that proper comparison data constituted wage data derived from the Economic Research Institute (ERI) and Salary.com. The ARB found, however, that the Navy's appellate brief did not dispute the ALJ's discrediting of that evidence because ERI and Salary.com processes and methodology was not established.

The Navy argued that a comparison of wage rates must include premiums to portray actual wages paid. The ARB found that while the Navy failed to show services of similar character performed in the locality, the record nonetheless supported the ALJ's finding that a shift premium is paid to only one lead employee per shift and that 60 percent of BAE employees under the CBA do not work shifts. The ARB found therefore that the ALJ reasonably concluded that including premiums "artificially inflated" the CBA wage rate when compared with the SCA rate.

The Navy argued that a comparison of wage rates must include premiums to portray actual wages paid. The ARB found that the record supported the ALJ's finding that a shift premium is paid to only one lead employee per shift and that 60 percent of BAE employees under the CBA do not work shifts, and that including premiums "artificially inflated" the CBA wage rate when compared with the SCA rate.

FEDERAL CONTRACTOR�S COMPLAINT REQUESTING DECLARATORY RELIEF PROPERLY DISMISSED BY ALJ ON THE GROUND THAT THE REGULATIONS ONLY AUTHORIZE OFCCP TO FILE A COMPLAINT WITH OALJ

In Entergy Services, Inc. , ARB No. 13-025, ALJ No. 2013-OFC-1 (ARB May 19, 2014), the Complainants, which were federal contractors subject to the equal opportunity laws, filed an "Administrative Complaint for Declaratory Relief" with the Office of Administrative Law Judges (OALJ) seeking declaratory relief from compliance reviews scheduled by the Office of Federal Contract Compliance Programs (OFCCP). The Chief ALJ dismissed the Complaint for lack of jurisdiction. The ARB affirmed the dismissal. The ARB stated: "The Office of Administrative Law Judges is an administrative tribunal that exercises authority only as defined by statute or regulation. See, e.g., Matthews v. Leavitt, 452 F.3d 145, 152 (2d Cir. 2006) (�The authority of an ALJ is circumscribed by the appointing agency's enabling statutes and its regulations.�). " The ARB found that the applicable OFCCP regulations at 41 C.F.R. § § 60-30.5 and 60-30.32(a) expressly grant only the OFCCP the authority to file a complaint and that there was �no authorization in the statutes or their implementing regulations empowering any other party to file a complaint under the EO Laws.� USDOL/OALJ Reporter at 3.

In an FLSA child labor case arising from the Wage and Hour Division's order of reference, the ALJ has the authority to dismiss for failure to respond to the ALJ's Order to Show Cause why a default judgment should not be entered for failure to comply with the ALJ's prehearing order requiring a prehearing exchange. The Respondent's communication with the attorney for the Wage and Hour Division asking for a wavier of the fine was not responsive to the ALJ's order to show cause.

EQUITABLE ESTOPPEL; RESPONDENT�S ACTIONS, WHETHER INTENTIONAL OR NOT, THAT LULLED COMPLAINANT INTO INACTION REGARDING AN FRSA COMPLAINT; EVIDENCE THAT RESPONDENT LED COMPLAINANT TO BELIEVE HE WOULD BE REINSTATED SUFFICIENT TO SURVIVE MOTION FOR SUMMARY DECISION

In Jenkins v. CSX Transportation, Inc. , ARB No. 13-029, ALJ No. 2012-FRS-73 (ARB May 15, 2014), the Complainant's FRSA was not timely filed, and the ALJ granted the Respondent's motion for summary decision, finding that the Complainant failed to establish equitable estoppel grounds for excusing the untimely filing. On appeal, the ARB stated that in addition to the three equitable estoppel principles identified in School District of Allentown , the ARB had recognized a fourth principle: "equitable estoppel will also apply to toll the running of a statute of limitations in situations �where the employer's own acts or omissions have lulled the plaintiff into foregoing prompt attempts to vindicate his rights.�" USDOL/OALJ Reporter at 7 (footnote with citations omitted). The Board stated:

Under this test it is immaterial whether the employer engaged in intentional misconduct. The equitable principle justifies tolling because one party "lull[ed] another into a false security, and into a position he would not take only because of such conduct." For estoppel to apply in this context, "the issue is whether the [employer]'s conduct, innocent or not, reasonably induced the [employee] not to file suit within the limitations period." "It is only necessary to show that the person estopped, by his statements or conduct, misled another to his prejudice."

Id . (footnotes omitted). Reviewing the Administrative Record, the ARB found that the Complainant had submitted sufficient evidence to create a genuine issue as to whether equitable estoppel applied in the form of three uncontested affidavits indicating that the Respondent led him to believe that he would be reinstated. The Respondent argued that discussions to resolve the Complainant's grievance could not be used as evidence to toll the filing period. The Board, however, wrote:

If Jenkins were merely invoking the existence of his pending grievance to toll the statute of limitations, we might agree with CSXT. Grievance proceedings are little different from settlement negotiations in this respect, which we distinguished in Hyman from the current situation. As we there noted, the Board has held that settlement negotiations alone will not toll the running of the statute of limitations. Hyman , ARB No. 09-076, slip op. at 8 (citing Beckmann v. Alyeska Pipeline Servs. Co. , ARB No. 97-057, ALJ No. 1995-TSC-016 (ARB Sept. 16, 1997) (settlement negotiations in the absence of any showing that the employer misled or otherwise prevented the employee from filing a complaint held insufficient to toll running of limitations period)). Unlike the situation in Beckmann, the showing in this case is to the effect, as in Hyman , that one party �lull[ed] another into a false security, and into a position he would not take only because of such conduct." Humble Oil v. The Fidelity & Casualty Co. of N.Y. , 402 F.2d 893, 897-98 (4th Cir. 1968). No showing of actual fraud is required. "It is only necessary to show that the person estopped, by his statements or conduct, misled another to his prejudice." Id.

USDOL/OALJ Reporter at 9-10. The ARB therefore remanded to the ALJ for further proceedings, noting that equitable modification to toll a statute of limitations is a fact intensive question, rarely appropriate for summary decision. One member of the ARB dissented, stating that he would find that the Complainant had not "presented legally sufficient evidence to support an equitable relief from the statute of limitations." Id . at 11.

WHERE PRO SE COMPLAINANT MISSED DUE DATE FOR RESPONSE TO ALJ�S ORDER TO SHOW CAUSE BY ONE DAY, BUT PRESENTED MATERIAL EVIDENCE WITH POTENTIALLY SIGNIFICANT PROBATIVE VALUE, THE ARB EXERCISED ITS DISCRETION TO REMAND FOR THE ALJ TO CONSIDER THAT EVIDENCE

In McAllister v. Lee County Bd. of County Commissioners , ARB No. 13-073, ALJ No. 2013-AIR-8 (ARB May 15, 2014), the ALJ had ordered the parties to show cause why the Complainant's AIR21 whistleblower case should be dismissed or allowed to proceed to hearing on three issues, one of which was whether the Respondent, the Lee County Bd. of County Commissioners, is an "air carrier" as defined under AIR21. The ALJ found that the Complainant had not timely replied to the Order to Show Cause, and proceeded to decide the "air carrier" issue, finding that it was determinative that the Respondent was not a "citizen of the United States" under 49 U.S.C. § 40102(a)(15). On appeal, the ARB found the Complainant's response to the Order to Show Cause in the Administrative Record. It was postmarked one date late according to the deadline set by the ALJ's Order to Show Cause. Upon the Complainant's request, the ARB treated this response as the Complainant's opening brief. The response alleged that the FAA had issued the Respondent an Air Carrier Certificate. The Complainant's reply to the ARB's briefing order included a copy of the purported Air Carrier Certificate. The Respondent did not admit or deny in its response brief that the FAA had issued it an Air Carrier Certificate. The ARB stated:

    The ARB is an appellate body whose review is generally limited to the record that was before the ALJ when he or she decided the case. But the Board may consider remanding a case to an ALJ to re-open a record where a party establishes that the party has submitted new and material evidence that was not readily available prior to the closing of the record. Given McAllister's pro se status and the potentially significant probative value of an FAA Air Carrier Certificate in a case in which the employer is denying that it is in fact, an air carrier, we do not feel that it would be appropriate to consider the issue whether the ALJ properly found that LCBCC was not an air carrier when the ALJ has not had the opportunity to consider the ramifications, if any, of the Air Carrier Certificate that the FAA allegedly issued to LCBCC.

USDOL/OALJ Reporter at 5 (footnotes omitted). The ARB thus remanded the case to the ALJ for additional proceedings.

[STAA Digest II I]
WHERE PARTY FILES MOTION FOR RECONSIDERATION WITH ALJ AND A PETITION FOR REVIEW WITH THE ARB, THE ARB WILL HOLD THE PETITION IN ABEYANCE UNTIL ALJ RULES ON MOTION

In Dick v. Tango Transport , ARB No. 14-054, ALJ No. 2013-STA-60 (ARB May 14, 2014), the Complainant filed a request for reconsideration with the ALJ, and a petition for review with the ARB. The ARB issued an Order Holding Petition for Review in Abeyance. The ARB stated that if the ALJ accepted the Complainant's motion for reconsideration as timely, the ALJ's decision would not yet be ripe for appeal, but that if the ALJ found that the motion for reconsideration was not timely, the Complainant must notify the Board at which time the Board would decide whether to accept the case for review. The Board stated that if the ALJ issued a decision on reconsideration, a petition for review could be filed as provided in 29 C.F.R. § 1978.110(a).

[STAA Digest IV A 1]
UNDER 2007 AMENDMENTS TO STAA�S BURDEN OF PROOF FRAMEWORK, THREE-STEP MCDONNELL DOUGLAS BURDEN-SHIFTING FRAMEWORK IS NO LONGER APPLICABLE; THE STAA AMENDMENTS EMPLOY A TWO-STEP ANALYTICAL PROCESS: (1) WHETHER THE COMPLAINANT HAS MET HIS BURDEN OF ESTABLISHING THAT PROTECTED ACTIVITY WAS A "CONTRIBUTING FACTOR," AND IF SO, (2) WHETHER THE RESPONDENT CAN ESTABLISH BY "CLEAR AND CONVINCING EVIDENCE," THAT IT WOULD HAVE TAKEN THE SAME ADVERSE PERSONNEL ACTION HAD THERE BEEN NO PROTECTED ACTIVITY

In Beatty v. Inman Trucking Management, Inc. , ARB No. 13-039, ALJ Nos. 2008-STA-20 and 21 (ARB May 13, 2014), the ALJ applied the McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-804 (1973) Title VII burden shifting paradigm to the Complainants� STAA blacklisting complaint, and denied the complaint based on his finding that the Complainants had not established by a preponderance of the evidence that the Respondent's articulated, legitimate non-discriminatory reason for filing negative DAC reports about the Complainants was pretext. On appeal, the ARB found that the McDonnell Douglas burden of proof framework was supplanted by the 2007 amendments to the STAA adopted as part of the 9/11 Commission Act of 2007, Pub. L. No. 110-53, 121 Stat. 266 (Aug. 7, 2007). That Act imposed the legal burdens of proof and framework imposed by AIR21:

Under the AIR 21 standard, a new burden of proof framework is established in which the complainant is initially required to show by a preponderance of the evidence that protected activity was a "contributing factor" in the alleged adverse personnel action. Should the complainant meet the "contributing factor" burden of proof, the burden shifts to the employer who is required, in order to overcome the complainant's showing, to prove by "clear and convincing evidence" that it would have taken the same adverse action in the absence of the protected conduct.

USDOL/OALJ Reporter at 8 (footnotes omitted). The ARB described the framework:

   The AIR 21 burden of proof framework is far more protective of complainant-employees and much easier for a complainant to satisfy than the McDonnell Douglas standard. As the Federal Circuit explained in Marano v. Dep't of Justice , the "contributing factor" standard was "intended to overrule existing case law, which requires a whistleblower to prove that his protected conduct was a 'significant�, �motivating�, 'substantial�, or �predominant� factor in a personnel action in order to overturn that action." The complainant need not demonstrate the existence of a retaliatory motive on the part of the employer taking the alleged prohibited personnel action, that the respondent's reason for the unfavorable personnel action was pretext, or that the complainant's activity was the sole or even predominant cause. The complainant "need only show that his protected activity was a �contributing factor� in the retaliatory discharge or discrimination." A "contributing factor," the ARB has repeatedly noted, is "any factor which, alone or in combination with other factors, tends to affect in any way the outcome of the [adverse personnel] decision." Thus, for example, a complainant may prevail by proving 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." Moreover, the complainant can succeed by providing either direct proof of contribution or indirect proof by way of circumstantial evidence.

   If the complainant proves that his/her protected activity was a contributing factor in the unfavorable personnel action, the burden shifts to the respondent, in order to avoid liability, to prove "by clear and convincing evidence" that it would have taken the same adverse action in any event. "The �clear and convincing evidence� standard is the intermediate burden of proof, in between �preponderance of the evidence� and �proof beyond a reasonable doubt.� To meet the burden, the employer must show that �the truth of its factual contentions is highly probable.�" Clear and convincing evidence is "evidence indicating that the thing to be proved is highly probable or reasonably certain."

USDOL/OALJ Reporter at 8-9 (footnotes omitted). The ARB acknowledged that it had sanctioned continued use of the Title VII analytical framework in past decisions, but concluded that use of the Title VII methodology had caused confusion and was legal error on its part. The ARB stated that federal appellate courts have recognized that "the statutory adoption of the new burdens of proof in several whistleblower case types has been was coupled with a new analytical framework." Id . at 10. See Stone & Webster Eng�g Corp. v. Herman , 115 F.3d 1568 (11th Cir. 1997) (ERA recodification); Allen v Administrative Review Board , 514 F.3d 468 (5th Cir. 2008) (analyzing independent burden-shifting framework of SOX and AIR21); Araujo v. New Jersey Transit Rail Operations, Inc. , 708 F.3d 152, 157 (3d Cir. 2013) (in AIR 21 Congress set forth, in place of the McDonnell Douglas burden-shifting framework, a two-part burden-shifting test); Bechtel v. Admin. Review Bd., U.S. Dep't of Labor , 710 F.3d 443, 448 (2d Cir. 2013) (in SOX cases, burden-shifting scheme has no basis in relevant law or regulation). The Board stated:

    The Title VII framework imposes a three-step analytical process, beginning by requiring from the complainant an initial "prima facie" showing which, if met, is followed by a rebuttal showing by the respondent which, if met, returns the ultimate burden of proof again to the complainant. The STAA amendments instead impose a two-step analytical process that focuses first on whether the complainant has met his burden of establishing that protected activity was a "contributing factor," which entitles the complainant to relief unless the respondent can establish in rebuttal, by "clear and convincing evidence," that it would have taken the same adverse personnel action had there been no protected activity.

USDOL/OALJ Reporter at 10.

[STAA Digest IV G]
CONTRIBUTING FACTOR; APOLOGY BY MANAGER TO COMPLAINANTS INDICATING THAT HE WAS MISTAKEN ABOUT THE VALIDITY OF THEIR SAFETY COMPLAINT WHEN HE MADE DEFAMATORY DAC ENTRIES ABOUT THE COMPLAINANTS, AND STATEMENT THAT HE AGREED TO REMOVE THE ENTRIES, DOES NOT PROTECT THE RESPONDENT FROM LIABILITY UNDER THE STAA; "MISTAKEN BUT SINCERE" IS NOT A DEFENSE UNDER THE STAA

In Beatty v. Inman Trucking Management, Inc. , ARB No. 13-039, ALJ Nos. 2008-STA-20 and 21 (ARB May 13, 2014), the ARB found that there was uncontroverted evidence that the Complainants� protected activity was a contributing factor in the Respondent's decision to place negative information in the Complainants� DAC report. The ARB pointed to the temporal proximity between the Complainants� protected complaints about exhaust leaks and a faulty muffler and the negative DAC reports ten days later. Moreover, the ALJ had cited the Respondent's safety director's testimony "that nine out of ten times the Beattys complained about the cleanliness of the trucks and not about safety," in explaining his entry of "excessive complaints" on the DAC report. The ARB found that this was an admission permitting the inference that the "excessive complaints" entry on the DAC report included complaints about exhaust leaks. And most importantly, the ARB pointed to documentation of the safety manager's apology to the Complainants and agreement to remove the negative information on their DAC reports. The safety manager indicated that upon further investigation, he learned that the exhaust leak were valid. The ARB wrote:

The fact that Grover, upon learning that the Beattys� exhaust leak complaints were valid, apologized and removed the offending entries from their DAC report constitutes tacit acknowledgment on Grover's part that the Beattys� exhaust leak complaints were a factor in Grover's decision to submit the negative entries. However, that Grover believed at the time he submitted the defamatory DAC report that the Beattys were lying did not make their complaints about an exhaust leak any less protected.[76]

[76] Elbert v. True Value Co. , ARB No. 07-031, ALJ No. 2005-STA-036, slip op. at 3 n.5 (ARB Nov. 24, 2010) ("[A] �mistaken but sincere� defense has no place in STAA jurisprudence; an employer may not escape liability for discharging an employee for protected activity merely by claiming a "mistaken but sincere" belief that the employee's safety complaint was groundless. An employee's complaint based upon a reasonable, albeit mistaken, belief that a potential or actual violation of a commercial motor vehicle safety regulation under 49 U.S.C.A. § 31105(a)(1)(A)(i) has occurred is sufficient to establish protected activity. See Guay v. Burford's Tree Surgeons, Inc. , ARB No. 06-131, ALJ No. 2005-STA-045, slip op. at 7 (ARB June 30, 2008); Harrison v. Roadway Express, Inc. , ARB No. 00-048, ALJ No. 1999-STA-037, slip op. at 6 (ARB Dec. 31, 2002), aff�d sub nom Harrison v. Admin. Review Bd. , 390 F.3d 752, 759 (2d Cir. 2004) (citing Dutkiewicz v. Clean Harbors Envtl. Servs., Inc. , ARB No. 97-090, ALJ No.1995-STA-034, slip op. at 3-4 (ARB Aug. 8, 1997)), cited with approval in Clean Harbors Envtl. Servs., Inc. , 146 F.3d 12, 19 (1st Cir. 1998). Accordingly, protection is not dependent upon the employer's belief in the accurateness of the employee's complaint. The primary consideration is assuring the right of employees to raise concerns, not the accuracy of those complaints. See Passaic Valley Sewerage Comm�rs v. U. S. Dep't of Labor , 992 F. 2d 474, 478 (3d Cir. 1993)").

USDOL/OALJ Reporter at 12 and n. 76.

[STAA Whistleblower Digest II H 4 c]
ARB MAY DECIDE ISSUE RATHER THAN REMAND TO ALJ WHERE REMAND WOULD BE MERE FORMALITY

In Beatty v. Inman Trucking Management, Inc. , the ALJ applied the wrong burdens of proof on the issue of causation, but the ARB decided the "contributing cause" issue rather than remanding to the ALJ on the issue because uncontroverted evidence of record proved that the Complainants� protected activity contributed to the adverse action. In regard to its decision to decide the case rather than to remand to the ALJ, the ARB cited the following federal court decisions:

See Hussain v. Gonzales , 477 F.3d 153 (4th Cir. 2007) (when the result of a remand is a foregone conclusion amounting to a mere formality, the "rare circumstances" exception to the remand rule is met and remand is unwarranted); Zhong v. U.S. Dep't of Justice , 461 F.3d 101, 113 (2d Cir. 2006) (stating that an agency error does not warrant remand when it is clear from the record "that the same decision is inevitable on remand, or, in short, whenever the reviewing panel is confident that the agency would reach the same result upon a reconsideration cleansed of errors") (citation omitted).

USDOL/OALJ Reporter at n.72.

WHERE STATE ACTION ALLEGING SOX COMPLAINT WAS REMOVED TO FEDERAL DISTRICT COURT MORE THAN 180 DAYS AFTER COMPLAINT WAS FILED WITH OSHA, DISTRICT COURT PROCEEDINGS DEPRIVED ALJ OF JURISDICTION

In Cheng v. Worldwide Energy & Manufacturing USA, Inc. , ARB No. 12-111, ALJ No. 2012-SOX-26 (ARB May 13, 2014), the Complainant filed a SOX whistleblower complaint. The parties submitted a settlement agreement, but OSHA dismissed the complaint for failure to include certain language in the agreement. While the complaint was pending before OSHA, the Complainant filed a state court action which included a federal SOX claim. The state action was removed to U.S. district court, where the parties jointly stipulated to a dismissal due to a settlement. The Complainant then requested a hearing before a DOL ALJ. The ALJ dismissed the complaint finding that the district court proceedings resolving the SOX complaint deprived the ALJ of jurisdiction. The ARB affirmed the dismissal. The removal to federal court had occurred more than 180 days after the complaint's filing with OSHA, giving the district court jurisdiction over the SOX matter. The ARB wrote: "the proceedings that led to the DOL's loss of jurisdiction in this case (removal of Cheng's SOX whistleblower claim from state to federal court) is distinguishable from proceedings where a complainant pursues a non-SOX claim arising out of the same set of facts and involving the same parties in state court based on state law, or in federal court based on federal law. In that situation, SOX would not foreclose DOL's jurisdiction over a complainant's federal SOX administrative action. On review, however, Cheng fails to present any legal basis for disturbing the ALJ's dismissal order for lack of jurisdiction. " USDOL/OALJ Reporter at 3 (footnote omitted).

Administrative Law Judge Decision

[Nuclear & Environmental Digest IX M 1]
[Nuclear & Environmental Digest XX B 3]
CONFLICT BETWEEN PSIA REGULATIONS AND ENVIRONMENTAL STATUTE REGULATIONS ON APPLICATION OF FORMAL RULES OF EVIDENCE; WHERE COMPLAINT ALLEGED VIOLATIONS OF BOTH PSIA AND ENVIRONMENTAL STATUTES FOR THE SAME CONDUCT; ALJ DETERMINED THAT IT WOULD BE�NECESSARY TO APPLY A SINGLE EVIDENTIARY STANDARD AND THAT THE LESS FORMAL STANDARD OF THE PSIA REGULATIONS SHOULD APPLY

In Pedersen v. ASRC Energy Services, Inc. , 2013-CER-1 (ALJ May 6, 2014), the Complainant filed a complaint with OSHA under the whistleblower provisions of the Pipeline Safety Improvement Act (PSIA) and five environmental statutes (SWDA, SWDA, FWPCA, TSCA, and CERCLA).� In an earlier order concerning a motion for summary decision, the ALJ ordered that the less formal rules of evidence applied in PSI cases would apply at the hearing.� Later, during a pre-trial conference, the ALJ modified this order to apply the formal rules of evidence to evidence regarding exemplary damages under the SDWA and the TSCA.� The Respondent moved for reconsideration. �

The ALJ noted that the PSIA regulations expressly reject application of formal rules of evidence.� See 29 C.F.R. § 1981.107(d); 70 Fed. Reg. 17889, 17892.� The regulations applying to the five environmental statutes require application of formal rules of evidence.� See 29 C.F.R. § 24.107(a).� In the instant case, the complaint alleged that the same conduct violated both the PSIA and the other five statutes, thereby setting up the need to select a framework for questions of admissibility of evidence.� The ALJ concluded that simultaneous application of two sets of rules would be unwieldy and unworkable, and that he would apply the regulations that permit an ALJ to waive any rule or to issue any order that justice or administration of the statutes requires.� See 29 C.F.R. §§ 24.115, 1981.114.� The ALJ rejected the Respondent's contention that such a waiver or order is only permitted upon application of a party, finding that the Respondent had an opportunity to present arguments and to be heard before the wavier is put into place at the hearing.

The ALJ found the less formal evidentiary framework of the PSIA to be more appropriate to apply because they conform to the APA, because the PSIA's burden of proof is more� favorable to the Complainant than under the five environmental statutes; with the exception of exemplary damages, the remedies under all the statutes are the same; and "[i]t would arguably infringe on Complainant's due process rights to apply more rigorous evidentiary standards to the [PSIA] because it would reduce his likelihood of success where Congress intended that it� be at its highest"; the Respondent would not be unduly burdened as the Complainant only need to prevail on the PSI complaint; the Secretary has favored less formal evidentiary rules in more recently adopted whistleblower regulations; and the ALJ had already ordered the use of more formal rules of evidence in the one area where it could actually disadvantage the Respondent (the exemplary damages issue).� The ALJ was not persuaded by the Respondent's argument that it would make more sense to apply the rule for the five environmental statutes, the ALJ finding that due process and general policy considerations outweighed a "majority vote."

The ALJ was not persuaded by the Respondent's argument that the Complainant's pro per status suggests that the court should prefer formal rules.� The ALJ found that applying two sets of rules would likely increase the duration and complexity of the hearing.� The ALJ stated that he had not based his conclusions in the order based on the Complainant's pro per status, but that if he were to take that into consideration, he would conclude that the hearing would proceed more expeditiously and effectively without formal rules of evidence.�