Administrative Review Board - May 2021 | U.S. Department of Labor

Corbin v. Norfolk Southern Railway Co., ARB No. 2020-0023, ALJ Nos. 2019-FRS-00018, -00019 (ARB May 28, 2021)(per curiam)

CONTRIBUTORY FACTOR CAUSATION; A COMPLAINANT IS NOT REQUIRED TO PROVE RETALIATORY ANIMUS—HOWEVER—MOTIVATION IS RELEVANT CIRCUMSTANTIAL EVIDENCE THAT MAY BE CONSIDERED IN DETERMINING WHETHER A COMPLAINANT DEMONSTRATED CONTRIBUTORY FACTOR CAUSATION

In Corbin v. Norfolk Southern Railway Co., ARB No. 2020-0023, ALJ Nos. 2019-FRS-00018, -00019 (ARB May 28, 2021)(per curiam), Complainants were responsible for moving trains throughout Respondent’s rail system. They alleged in a FRSA complaint that Respondent suspended, and then dismissed them, in retaliation for expressing protected safety concerns about operating a locomotive in long hood forward mode in a manner that decreased vision of the road, and about diesel exhaust potentially causing the crew’s eyes to water. Following a hearing, the ALJ found, in a very fact-specific decision, that Plaintiffs failed to prove contributory factor causation. The ALJ also found that Respondent established its affirmative defense by showing by clear and convincing evidence that the suspensions and terminations were based on rules violations wholly independent of protected activity. The rules violations charged were Complainants’ failure to follow supervisor instructions concerning early departures from work, and in one Complainant’s case, refusal to permit inspection of his driver’s license when entering the facility in a manner as directed by a supervisor.

On appeal, Complainants argued that the ALJ erroneously required them to prove that Respondent’s trainmaster (Siffre) had retaliatory motives when he was the charging officer in the disciplinary hearings on the rules violations. The ARB found that the ALJ had not erred:

Complainants are correct that the complainants do not need to prove retaliatory motivation in FRSA whistleblower cases. Rather, “the contributing factor that an employee must prove is intentional retaliation prompted by the employee engaging in protected activity.” To satisfy this standard, “a complainant need not prove a retaliatory motive beyond showing that the employee’s protected activity was a contributing factor in the adverse action.”

However, the ALJ did not hold that Complainants must show retaliatory animus to successfully prove their claims against Respondent. The ALJ made findings that Complainants had failed to prove by a preponderance of the evidence that Siffre “was motivated in any way to retaliate against [them] because of the safety complaint made in the summer of 2017.” Motivation, however, is relevant circumstantial evidence that may be “consider[ed] when determining whether a complainant has demonstrated that protected activity was a contributing factor in the adverse action.” We interpret the ALJ’s findings as support for its overall findings that Complainants failed to prove their protected activity contributed to Siffre’s disciplinary actions. Therefore, the ALJ did not err in finding that Siffre was not motivated to retaliate against Complainants

Slip op. at 6-7 (footnotes omitted).

Complainants also sought reversal of the ALJ’s findings that they failed to prove that their protected activities were contributory factors in the trainmaster’s disciplinary actions. Complainants pointed to temporal proximity, certain testimony, and their contention that the rules violation charges were pretext. The ARB found these challenges unpersuasive. The ARB found the temporal proximity evidence weak, as Complainants had not established the length of time between the protected activity and disciplinary action—and even the approximate temporal proximity of early summer to August, was not particularly close As to the testimony and contentions cited by Complainants on appeal, the ARB found that substantial evidence supported the ALJ’s finding of no contribution, noting lack of evidentiary support for Complainants contentions, and considerable evidence showing rules violations by Complainants.

ARB REVIEW; WHERE ARB AFFIRMED ALJ’S FINDING OF FAILURE TO PROVE CONTRIBUTORY FACTOR CAUSATION, IT WAS UNNECESSARY FOR THE ARB TO ALSO REVIEW THE ALJ’S ALTERNATIVE FINDING THAT RESPONDENT MET ITS BURDEN OF PROOF FOR AN AFFIRMATIVE DEFENSE

In Corbin v. Norfolk Southern Railway Co., ARB No. 2020-0023, ALJ Nos. 2019-FRS-00018, -00019 (ARB May 28, 2021)(per curiam), the ARB found that substantial evidence supported the ALJ’s finding that Complainants failed to prove by a preponderance of evidence that their FRSA protected activity contributed to the disciplinary actions against them. As a result, the ARB found it unnecessary to review the ALJ’s affirmative defense determination that Respondent showed by clear and convincing evidence that it had suspended and later terminated Complainants based on rules violations wholly independent of FRSA protected activity.

Yates v. Superior Air Charter LLC, ARB No. 2017-0061, ALJ No. 2015-AIR-00028 (ARB May 28, 2021) (per curiam) (Order Awarding Attorney Fees)

ATTORNEY’S FEE RATES BASED ON LAFFEY MATRIX MAY BE FOUND REASONABLE WHERE THEY ARE SHOWN TO BE LOWER THAN THE PREVAILING RATES IN THE RELEVANT LOCAL COMMUNITY

DISFAVORED VAGUE BLOCK BILLING OF ATTORNEY FEES MAY BE ADDRESSED BY REDUCTION OF LODESTAR FEE BY A SET PERCENTAGE RATHER THAN AN ITEM-BY-ITEM REDUCTION

In Yates v. Superior Air Charter LLC, ARB No. 2017-0061, ALJ No. 2015-AIR-00028 (ARB May 28, 2021) (per curiam), the ARB considered Complainant’s fee and costs petition for appellate proceedings before the ARB.

Respondent first contested the reasonableness of Complainant’s use of the Laffey Matrix, which provides a schedule of hourly rates prevailing in Washington, D.C., where the relevant community was, according to Respondent, the Central District of California. The ARB agreed that the relevant community was the Central District of California—but, citing Barrett v. e-Smart, Techs., Inc., ARB Nos. 2011-0088, 2012-0013, ALJ No. 2010-SOX00031, slip op. at 10 (ARB Apr. 25, 2013)—found that Complainant “has met his burden to show that the Laffey Matrix is a reasonable rate, because Complainant has demonstrated that the requested rate is lower than the prevailing rates in the community in the Central District of California.” Slip op. at 5.

The ARB, however, imposed a reduction of 10% for vague block billing by one law firm. In this regard, the ARB stated:

The ARB requires that “time and task entries be sufficiently detailed to demonstrate their reasonableness.” The ARB “disfavor[s] the use of block billing,” which is “the practice of grouping multiple tasks into a single time entry.” “Where the billing descriptions do not provide sufficient documentation to determine the reasonableness of the hours claimed, a reviewing body need not engage in an item-by-item reduction of the hours, but may instead reduce the lodestar fee by a set percentage.”

Id. at 6 (footnotes omitted).

The ARB also reduced a fee request for one person to reflect that person’s status as a law clerk, and removed fee requests for unidentified billers.

Administrator, Wage and Hour Div., USDOL v. Sun Valley Orchards, LLC, ARB No. 2020-0018, ALJ No. 2017-TAE-00003 (ARB May 27, 2021) (per curiam) (Decision and Order)

RESPONDENT, THROUGH ITS AGENT, DEDUCTED MEALS AND BEVERAGES FROM WORKERS’ WAGES, VIOLATED THE THREE-FOURTHS GUARANTEE, FURNISHED INADEQUATE LIVING CONDITIONS, AND PROVIDED SUBSTANDARD TRANSPORTATION AND UNLICENSED DRIVERS; ARB AFFIRMS DECISION AND ORDER AWARDING BACK WAGES AND CIVIL MONEY PENALTIES

In Administrator, Wage and Hour Div., USDOL v. Sun Valley Orchards, LLC, ARB No. 2020-00018, ALJ No. 2017-TAE-00003 (ARB May 27, 2021) (per curiam), the Administrator filed a Notice of Determination against the Respondent, citing multiple violations of the H-2A regulations. Following a hearing, the ALJ affirmed in part and modified in part the Administrator’s determination. Id., slip op. at 2. The ALJ found that the Respondent committed the following violations through the actions of its agent:

1) the Respondent unlawfully deducted meals, non-alcoholic beverages, and beer from the workers’ wages pursuant to 20 C.F.R. §§ 655.122(g), (p), and (q);
2) the Respondent profited from the sale of non-alcoholic beverages to the workers;
3) the beer sales were unlawful deductions because the Respondent’s agent sold beer without a license, in violation of state law;
4) the Respondent discharged 24 workers before they were offered work for at least three-fourths of the workdays specified in the job orders, in violation of 20 C.F.R. § 655.122(i)(1);
5) the Respondent violated the three-fourths guarantee for 4 workers that were laid off in August 2015 due to a crop failure;
6) the Respondent failed to satisfy the three-fourths guarantee for an additional worker because the record contained no evidence that the worker abandoned his job;
7) the Respondent unlawfully attempted to cause the workers to waive their three-fourths guarantee;
8) the Respondent furnished inadequate housing conditions, in violation of 20 C.F.R. § 655.122(d)(1); and
9) the Respondent used substandard transportation and unlicensed drivers, in violation of 20 C.F.R. § 655.122(h)(4).

Id. at 6–8. The ALJ modified the back wage assessment regarding the workers’ purchase of non-alcoholic drinks because the preponderance of the evidence demonstrated that the workers purchased an average of 4 drinks a day rather than the Administrator’s finding of 4.42. Id. at 6–7. The ALJ affirmed the Administrator’s determinations in all other respects, totaling $344,945.80 in back wages and $211,800 in civil money penalties (“CMP”) against the Respondent. Id. at 9. The Respondent appealed. Id. The ARB affirmed. Id. at 10–21.

Meal Plan Violations

-- Common Law Agency Principles and Beer Sales

First, the ARB held that the ALJ correctly applied common law agency principles to violations arising under the INA, and accordingly, an H-2A employer is liable for an employee’s unlawful actions while acting under the actual or apparent authority of the employer. Id. at 10. The ARB found that the individual acting on behalf of the Respondent was properly characterized as the Respondent’s agent because he sold beer to the workers and “operated the meal plan service and collected money from the workers for the food” and without the meal plan service, the “Respondent would not have complied with its requirement to provide meals to its workers.” Id. at 11.

-- Kitchen Access

The ARB next held that the ALJ properly found that the Respondent failed to meet its legal obligation, as stated in the job order submitted to the Department of Labor, to provide the workers with access to its kitchen to prepare their own meals based on the testimony at the hearing. Id. at 11–12.

-- Back Wages and CMPs for Undisclosed Meal Charges Impacting Wages

The ARB affirmed the ALJ’s order of $128,185 in back wages and $198,450 in CMPs for deducting the workers’ wages from the undisclosed meal plan under 20 C.F.R. § 655.122(p). Id. at 12–15. The ARB rejected the Respondent’s argument that it did not deduct the meal plan costs from the workers’ pay because the workers paid the Respondent’s agent after they “received their cash.” Id. at 12–13. In doing so, the ARB stated that whether its agent “took the money before or after providing the workers’ pay is a distinction without a difference because . . . [t]he workers’ would lose $75-80 of their earnings.” Id. at 13. The ARB also rejected the Respondent’s contention that the per-worker CMP was excessive because the Respondent only committed one violation of failing to disclose the meal charges. Id. at 12. The ARB held that 29 C.F.R. § 501.19(a) permits the Administrator to assess a CMP “for each violation of the work contract” including each failure to “pay an individual worker properly or to honor the terms or conditions of a worker’s employment,” and that the Respondent falsely represented that an adequate kitchen would be provided in each of the workers’ contracts, thus resulting in a violation for each worker. Id. at 13 & n.81. The ARB also noted that the meal plan deductions were unlawful because they were not disclosed, which resulted in a wage below the wage specified in the workers’ job orders. Id. at 14–15.

-- Back Wages for Profits from Sale of Soft Drinks and Beer; ALJ Correctly Applied Burden Shifting Framework to Adopt Administrator’s Approximation of Profits

The ARB upheld the $64,960 back wage award for the Respondent’s agent’s non-alcoholic drink sales to employees and the $8,972.61 back wage award for beer sales to employees. Id. at 16–18. The ARB found that while the regulations do not require H-2A employers to provide “soft drinks” to employees, if an employer or an “affiliated person” sells employees drinks, “the regulations prohibit [the employer] from profiting from the sales,” and the employer would be “liable for the amount charged that reduced the employee’s wages below the amount promised in the job orders.” Id. at 16. With respect to the beer sales, the ARB rejected the Respondent’s contention that the Administrator’s back wage calculation was “incorrect because the investigator based the calculations off of a different brand of beer, store, and price used by” the Respondent’s agent. Id. at 17. The ARB held that the ALJ correctly applied the Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), burden shifting framework, “in which the plaintiff only needs to produce sufficient evidence of the wages owed as a matter of just and reasonable inference,” and the burden “shifts to the employer to produce evidence of the precise amount owed, and if the employer fails to do so, the court may award damages that need only be ‘approximate.’” Id. The ARB found that since the Respondent failed to rebut the Administrator’s calculations “with precise amounts,” the ALJ was correct in awarding back wages that were an approximation of” Respondent’s agent’s profits. Id.

Three-Fourths Guarantee; ARB Affirms ALJ’s Grant of Back Wages and CMPs; Evidence that Respondent Asked Workers to Sign Falsified Waiver

The ARB rejected the Respondent’s challenge of the award of $142,728.22 in back wages and $1,350 in CMPs for the three-fourths guarantee violation. Id. at 18. The ARB accorded the ALJs credibility determinations “great deference” because they were not “inherently incredible or patently unreasonable.” Id. With respect to “four workers who were sent home after the pepper crop had become diseased,” the ARB held that the Respondent waived the argument that these workers were offered the required hours of work but were unable to work them for personal reasons because the Respondent agreed with the Administrator’s calculation and failed to raise any argument against this alleged violation in its post-hearing brief. The ARB also held that even if the Respondent did not waive this argument, there was no evidence of record demonstrating that these workers were offered the required amount of work. Id. at 19. The ARB also noted that the Respondent asked the workers to sign a falsified form waiving their rights to the three-fourths guarantee, and substantial evidence supported this finding because the Respondent admitted that no workers “had sick or deceased family members and that the purpose of falsifying the forms was ‘to protect against . . . this lawsuit.’” Id. at 20.

ARB Finds No Legal Merit to Respondent Arguments Regarding WHD Investigator’s Pursuit of Enforcement Action Rather Than Immediately Notifying Respondent of Violations

The ARB rejected the Respondent’s challenge to $3,150 in CMPs for inadequate living conditions because no legal argument could be discerned from the Respondent’s contention that the poor conditions were caused by the workers living there, which “could have been remedied immediately if the WHD Investigator had been interested in the workers’ living conditions rather than in assessing CMPs and raised the issue to [the Respondent] in a timely manner.” Id.

Finally, the ARB rejected the Respondent’s contention that the WHD failed to raise concerns about the meal plan charges and bring an enforcement action in a timely manner because “there is no case law that applies the doctrine of laches or estoppel to a government enforcement action[,] . . . H-2A employers are . . . responsible for complying with the regulations[, and] . . . there is no regulatory requirement for the WHD to notify an employer the instant a violation is suspected and that the Supreme Court has long recognized that laches is not a defense to a government enforcement action.” Id. at 20–21.

Huang v. Greatwide Dedicated Transport II, LLC, ARB No. 2019-0053, ALJ No. 2016-STA-00017 (ARB May 27, 2021) (per curiam) (Decision and Order)

[STAA Digest II E 9]

INVESTIGATORY AND ADJUDICATORY DELAYS AS GROUNDS FOR DISMISSAL OF STAA COMPLAINT; SUCH DELAYS DO NOT NEGATE SECRETARIAL ACTION ON A STAA COMPLAINT AND STATUTORY TIME LIMITS ARE ONLY DIRECTORY; MOREOVER, RESPONDENT FAILED TO ESTABLISH ACTUAL PREJUDICE

In Huang v. Greatwide Dedicated Transport II, LLC, ARB No. 2019-0053, ALJ No. 2016-STA-00017 (ARB May 27, 2021) (per curiam), the ALJ had ruled in favor of Complainant on his STAA complaint. On appeal, Respondent argued that the complaint should be dismissed because of delays adjudication delays caused it severe prejudice -- specifically, OSHA’s determination was issued more than three years after the complaint was filed, and the ALJ’s decision was issued more than a year and a half after the hearing. Respondent contended that Complainant “contributed to the delay by requesting a hearing postponement, and by entering into a settlement agreement and later refusing to sign it.” Slip op. at 4. Respondent contended that the delay resulted in fading of witnesses’ memories, and its being unable to locate other witnesses. Respondent also contended that changes in personnel and document management systems damaged its ability to respond to the complaint. The ARB was not persuaded by these contentions.

The ARB first noted that failure to meet STAA deadlines does not invalidate the Secretary’s actions, and that statutory time limits for agency action are usually deemed directory. The ARB determined that a decision beyond the deadline is not unreasonable where the ALJ, as here, had to consider sharply conflicting testimony, and the result was a lengthy and well-reasoned decision.

Although Respondent cited Todd Shipyards Corp. v. Sec’y of Labor, 566 F.2d 1327, 1330 (9th Cir. 1977), for the proposition that there are remedies for prejudice caused by the Secretary’s failure to conduct an investigation and issue an order with reasonable promptness, the ARB found that it did not apply because it was about citations brought by DOL for OSH Act violations, whereas the instant case involved a complaint filed by an employee against a former employer. The ARB further determined that Respondent had not shown prejudice. The ALJ’s award for back pay was limited to a period of time that was not impacted by the adjudicatory delay; Complainant’s filing of the complaint with OSHA put Respondent on notice to preserve relevant evidence; and the three witnesses who did testify were central to the Complainant’s reporting and termination. The ARB also found that Complainant had not caused unreasonable delays, and that substantial evidence supported the ALJ’s finding that the parties had not entered into a settlement agreement.

[STAA Whistleblower Digest II S]

CONSIDERATION BY ALJ OF CLAIMS AND EVIDENCE THAT SELF-REPRESENTED COMPLAINANT HAD NOT LISTED IN HIS INITIAL DISCLOSURES AS REQUIRED BY 29 C.F.R. § 18.57(c) FOUND NOT TO BE ERROR BY THE ARB, WHERE RESPONDENT HAD AMPLE TIME TO PREPARE ITS DEFENSE, AND WHERE COMPLAINANT DID NOT YET HAVE AN ATTORNEY WHEN THE INITIAL DISCLOSURES WERE DUE

In Huang v. Greatwide Dedicated Transport II, LLC, ARB No. 2019-0053, ALJ No. 2016-STA-00017 (ARB May 27, 2021) (per curiam), Respondent argued on appeal that the ALJ erred in considering claims and evidence that Complainant introduced at the evidentiary hearing, but had not listed in his initial disclosures. The ALJ had found that such failure had been harmless “because Complainant was pro se when initial disclosures were due, and Respondent already had a calculation of damages, Complainant’s tax returns, and ‘plenty of time to prepare.’” Slip op. at 5 (quoting ALJ).

The ARB noted that 29 C.F.R. § 18.57(c) provides that when a party fails to make its initial disclosures, “the party is not allowed to use that information or witness to supply evidence on a motion or at a hearing, unless the failure was substantially justified or is harmless.” The ARB, however, affirmed the ALJ’s finding that the Complainant’s failure to timely make his initial disclosures was harmless. The ARB noted that Respondent had three months to conduct discovery and four and a half months to prepare a defense, and that Complainant was self-represented when his initial disclosures were due.

[STAA Digest V B 1 a]

PROTECTED ACTIVITY; GATHERING OF EVIDENCE; RECORDING OF MEETING WAS STAA PROTECTED ACTIVITY WHERE THE RECORD DID NOT SHOW THAT THE RECORDING WAS ILLEGAL, WHERE THE RECORDING WAS NOT INDISCRIMINATE BUT DONE SELECTIVELY TO GATHER EVIDENCE TO SUPPORT COMPLAINANT’S CONCERN OF HOURS OF SERVICE VIOLATIONS; AND WHERE RESPONDENT HAD NO WRITTEN POLICY PROHIBITING SUCH RECORDINGS

[STAA Digest V B 1 a]

PROTECTED ACTIVITY; GATHERING OF EVIDENCE; REMOVING DOCUMENTS FROM A LOCKBOX AND COPYING THEM WAS STAA PROTECTED ACTIVITY WHERE THE INFORMATION REMOVED WAS USED TO SUPPORT THE STAA COMPLAINT, WHERE COMPLAINANT DID NOT RELEASE THE INFORMATION OUTSIDE THE COMPANY, AND WHERE RESPONDENT’S HANDBOOK’S POLICY ON CONFIDENTIAL INFORMATION DID NOT INCLUDE THE INFORMATION ON THE DOCUMENTS AT ISSUE

In Huang v. Greatwide Dedicated Transport II, LLC, ARB No. 2019-0053, ALJ No. 2016-STA-00017 (ARB May 27, 2021) (per curiam), Complainant retrieved documents from a lockbox pertaining to drivers he suspected were violating the hours of service limitation. Complainant also recorded management conversations. Complainant then sent an anonymous letter about his allegations to Respondent’s vice president and to its regional director of safety. Employees were disciplined as a result. About a month later, Complainant acknowledged he was the author of the letters. Less than four days later he was suspended, and then later fired. Complainant then filed a STAA complaint alleging Respondent unlawfully terminated his employment in retaliation for reporting safety violations. After a hearing, the ALJ issued a decision in Complainant’s favor. The ALJ found that Complainant’s actions of submitting the anonymous letters, removing documents from the lockbox and copying them, and recording a meeting, were STAA protected activity.

On appeal, Respondent contended that the recording was not protected activity because the recording violated Federal and state wiretap laws. The ARB, however, agreed with the ALJ that there was “insufficient evidence in the record about the nature of the conversation and how it was recorded to determine whether Complainant’s recording was illegal.” Slip op. at 6-7.

Respondent also contended that “indiscriminate recording of all oral communications is not protected, relying on Hoffman v. Netjets Aviation, Inc.[, ARB No. 2009-0021, ALJ No. 2007-AIR-00007, slip op. at 3 (ARB Mar. 24, 2011)]. ” Id. at 7. The ARB, however, found that Hoffman was distinguishable on the facts:

In Hoffman, the Board determined that the complainant’s recording was not protected because employees were prohibited from recording matters related to the employer’s business, and because the complainant recorded approximately 750 conversations over a year and eight months. Conversely, the Board has held that making selective recordings to gather evidence is a protected activity. Here, Complainant recorded only a few hours during a single meeting at a time that he knew dispatchers reviewed drivers’ hours in order to capture driving violations. Further, Respondent had no written policy either prohibiting recordings, or that product type, delivery locations, or assigned routes were confidential.

Id. (footnotes omitted).

Respondent further contended that “only recordings relating to safety matters are protected, and that here, only a few minutes of the recording relates to safety.” Id. Respondent also contended that “Complainant did not record the dispatchers’ meeting to capture safety violations, but rather did so to document which Nordstrom stores needed products.” Id. The ARB found that this contention mischaracterized Complainant’s testimony, which was that ”he recorded this meeting because, based on his prior observations, he knew when the dispatchers would discuss the Nordstrom account.” Id.

Respondent contended that removing and copying confidential information violated its company policy, and therefore was not protected regardless of whether it supports a complaint. Respondent cited in this regard BSP Trans. Inc. v. Dep’t of Labor, 160 F.3d 38, 49 (1st Cir. 1998). The ARB distinguished this case:

However, the complainant in BSP Trans. Inc. never submitted a complaint alleging STAA violations. In contrast, here, Complainant used the information he removed and copied to support his complaint. Further, as the ALJ correctly observed, Complainant never provided these copies to anyone outside of Greatwide, and, even if he did, the handbook’s policy on confidential information does not include the information found on these documents. Thus, the ALJ correctly determined Complainant engaged in protected activity when he removed and copied documents pertaining to timekeeping.

Id. at 7-8 (footnotes omitted).

[STAA Digest IV G]

CONTRIBUTORY FACTOR CAUSATION ESTABLISHED BY TEMPORAL PROXIMITY, RESPONDENT’S KNOWLEDGE OF THE PROTECTED ACTIVITY, AND RESPONDENT’S ADMISSION THAT COMPLAINANT WAS FIRED, IN PART, FOR REMOVING AND COPYING DOCUMENTS, AND RECORDING EMPLOYEE CONVERSATION (THE ALJ HAVING FOUND THAT THIS WAS PROTECTED ACTIVITY)

On appeal, the ARB affirmed the ALJ’s finding that Complainant’s actions in gathering evidence to support his claim was protected activity under the STAA. Respondent argued that contributory factor causation was not established because Complainant was fired for violating company policy when he removed and copied confidential information and recorded a dispatchers’ meeting. Respondent argued that the “STAA does not authorize the Secretary to police and undercut its policies and disciplinary practices.” Slip op. at 8.

The ARB found that substantial evidence supported the ALJ’s finding of temporal proximity and knowledge by Respondent of Complainant’s protected activity – but stated that this was insufficient standing alone to conclusively determine contribution. The ARB, however, found additional facts supported contributory factor causation.

For example, the ALJ determined Complainant engaged in protected activity when he removed and copied documents and recorded the dispatchers’ meeting. As previously discussed, we have found that these findings of fact are supported by substantial evidence in the record. In addition, Respondent admits that Complainant was fired, in part, because he removed and copied documents and recorded employee conversations. Because a contributing factor is any factor that affects the outcome of an adverse action in any way, we conclude that Complainant’s protected activity contributed to his firing.

Id. at 9 (footnote omitted).

[STAA Digest IV H]

AFFIRMATIVE DEFENSE; RESPONDENT FAILED TO PRESENT A CONSISTENT THEORY FOR COMPLAINANT’S FIRING; FADED MEMORY OF WITNESSES DUE TO LENGTH OF PROCEEDING WAS NOT A GROUND TO RELIEVE RESPONDENT WHERE IT LONG HAD NOTICE OF THE CLAIM AND COULD HAVE TAKEN STEPS TO PRESERVE EVIDENCE; ANOTHER EMPLOYEE WHO REPORTED HOURS OF SERVICE VIOLATIONS STILL WORKED FOR RESPONDENT WAS NOT SHOWN TO BE SIMILARLY SITUATED TO COMPLAINANT

[STAA Digest IV H]

AFFIRMATIVE DEFENSE; VIOLATIONS OF COMPANY POLICY ON THEFT AND CONFIDENTIALITY; CLEAR AND CONVINCING EVIDENCE DID NOT ESTABLISH COMPLAINANT WOULD HAVE BEEN FIRED ABSENT THE PROTECTED ACTIVITY; GATHERING OF EVIDENCE BY COMPLAINANT NOT SHOWN TO BE CLEARLY IN VIOLATION OF HANDBOOK, AND EVEN IF A VIOLATION, HANDBOOK DID NOT CLEARLY SHOW WHAT DISCIPLINE WOULD BE IMPOSED

In regard to the affirmative defense, the ARB found that substantial evidence supported the ALJ’s conclusion that Respondent had not presented a consistent theory for why Complainant was fired, and failed to establish it would have fired Complainant for the purported reasons. The ARB noted, in particular, that the termination letter did not state a specific reason why Complainant was fired. Also, the ARB found that Respondent’s witnesses gave contradictory testimony regarding to the reasons. The ARB was not swayed by Respondent’s contention that the inconsistencies were the product of a five and half year gap between the firing and the date of hearing. The ARB had previously addressed Respondent’s contentions that it had been prejudiced by the extended period, and reiterated that “Respondent knew about Complaint’s claim shortly after Complainant was fired, and, therefore, had more than sufficient notice to preserve any evidence relevant to the reason(s) for terminating Complaint’s employment.” Slip. at 10 (footnote omitted). Neither was the ARB persuaded by Respondent’s contention that another employee reported hours of service violations but did not violate company policy and was still employed by Respondent. The ARB noted that the record was unclear about whether any actions had been taken in regard to that other complaint; that several of Respondent’s employees had been disciplined as a result of Complainant’s reporting; and that the regional director of safety testified that she was not aware of other employees making similar allegations at Complainant’s terminal prior to receiving Complainant’s letter. The ARB thus found that Complainant was not similarly situated.

Respondent further contended that Complainant was also fired for violating company policy -- damaging the lockbox, removing and copying documents, recording his superiors’ communications, and detaching and abandoning a trailer. The ARB found that there was contradictory evidence about damage to the lockbox and no reason to overturn the ALJ’s credibility determination on this question, or the ALJ’s finding that Respondent did not present clear and convincing evidence that it would have fired Complainant because he damaged the lockbox.

The ARB also found that the record supported the ALJ’s conclusion that Respondent did not establish that it would have fired Complainant for detaching and abandoning a trailer. This ARB stated that this basis for termination was first presented at the hearing, that the circumstances surrounding the trailer were unclear, and that the company handbook did not address detaching and leaving a trailer to take a permitted meal break.

Finally, the ARB found that the record supported the ALJ’s finding that recording conversations and removing and copying documents did not violate Respondent’s policies. First, only managers were required to sign a confidentiality policy, and Complainant was not a manager. Second, there was no evidence that Complainant disclosed the recordings outside the company. Third, even if Complainant violated the confidentiality policy, the handbook was not clear as to what discipline would follow.

As to the copying of the records, the ARB noted that Complainant had only temporarily removed the documents to copy them, and had returned them to the lockbox. The ARB stated that “even if temporarily removing the documents constituted an inappropriate removal of property, the handbook includes a range of disciplinary actions.” Id. at 13 (footnote omitted).

System Tech, Inc. v. USDOL, Administrator, Wage and Hour Div., ARB No. 2020-0029 (ARB May 25, 2021) (per curiam) (Decision and Order)

Petitioner sought ARB review of the Wage and Hour Division Administrator's determination denying Petitioner's conformance request to add a “Telecommunications Installer” classification at a proposed wage rate of $19.75. The ARB determined that the Administrator exercised reasonable discretion in ruling that the proposed wage rate did not bear a reasonable relationship to the wage rates in the applicable wage determination. Thus, the ARB held that the Administrator "did not abuse her discretion in rejecting the proposed conformance request and substituting in its place a wage rate for the Telecommunications Installer classification that bears a reasonable relationship to the wage rates in the wage determination...."

Govindarajan v. NS Services, Inc., ARB No. 2020-0032, ALJ No. 2020-LCA-00001 (ARB May 25, 2021) (per curiam) (Order Denying Motion for Reconsideration)

MOTION TO RECONSIDER DISMISSAL FOR FAILURE TO SHOW CAUSE WHY RESPONDENT WAS NOT SERVED WITH OPENING BRIEF; PURPORTED MISUNDERSTANDING OF ORDER TO SHOW CAUSE, AND MOVE TO NEW LOCATION IN INDIA, DID NOT CONVINCE THE ARB TO RECONSIDER WHERE THE ORDER HAD BEEN EXPLICIT AND WHERE COMPLAINANT HAD BEEN USING E-FILING

In Govindarajan v. NS Services, Inc., ARB No. 2020-0032, ALJ No. 2020-LCA-00001 (ARB May 25, 2021) (per curiam), Complainant requested that the ARB reconsider its Order Dismissing Complaint for Complainant's failure to explain why he did not serve his opening brief in accordance with the ARB's Briefing Schedule. Specifically, Complainant failed to serve the Respondent.

Complainant argued that the ARB should reconsider because he misunderstood the Order to Show Cause and because he had recently moved from one location to another in India. The ARB, however, denied the motion, finding that the Order to Show Cause had been explicit, and that Complainant was an e-filer who could electronically access case filings from any location.

Haynes v. Union Pacific Railroad Co., ARB No. 2021-0026, ALJ No. 2019-FRS-00062 (ARB May 20, 2021) (per curiam) (Order Dismissing Complaint)

The ARB dismissed the administrative case because Complainant filed notice that he filed an original action in the U.S. District Court for the Western District of Missouri.

Kossen v. Empire Airlines, ARB No. 2021-0033, ALJ No. 2019-AIR-00022 (ARB May 12, 2021) (per curiam) (Order Denying Interlocutory Appeal)

INTERLOCUTORY APPEAL; EXCEPTIONAL CIRCUMSTANCES FOR INTERLOCUTORY APPEAL NOT ESTABLISHED WHERE ALJ CONSIDERED AND CORRECTLY DENIED COMPLAINANT'S MOTION TO RECUSE

In Kossen v. Empire Airlines, ARB No. 2021-0033, ALJ No. 2019-AIR-00022 (ARB May 12, 2021) (per curiam), the ARB denied Complainant's interlocutory appeal. The ARB explained:

Kossen has failed to allege exceptional circumstances sufficient to merit interlocutory review in this case. He asserts that the ALJ is biased against him because the ALJ did not rule in his favor in a prior case and because the ALJ’s son is employed by an airline. The ALJ considered these allegations and correctly concluded that neither was grounds for recusal. Accordingly, the request for interlocutory review is DENIED.

Slip op. at 2 (footnotes omitted) (emphasis as in original).

Mitchell v. National Railroad Passenger Corp. (AMTRAK), ARB No. 2020-0040, ALJ NO. 2019-FRS-00101 (ARB May 13, 2021) (per curiam) (Order Dismissing Complaint)

The ARB dismissed the FRSA administrative case because Complaint removed it to U.S. District Court for the Eastern District of Pennsylvania.

Marusak v. Burlington Northern Santa Fe Railway (BNSF), ARB No. 2021-0010, ALJ No. 2020-FRS-0038 (ARB May 11, 2021) (per curiam) (Order Dismissing Interlocutory Appeal)

The ARB dismissed Complainant's interlocutory appeal relating to his FRSA retaliation complaint. The ARB had issued an order to show cause why it should entertain Complainant's interlocutory appeal. Complainant did not timely respond, but later filed two documents that the ARB reviewed before ruling, given that Complainant was self-represented. The ARB, however, found that those documents were not responsive to the Order to Cause, and specifically failed to show why the ARB should not dismiss the interlocutory appeal or show why it fell within the collateral issue exception.