USDOL/OALJ Reporter: ARB Decision Caselist - June 2014

IN LCA CASE, WHERE MOTION FOR RECONSIDERATION WAS PENDING BEFORE ALJ, ARB FOUND CASE NOT YET RIPE FOR ARB REVIEW

In The Principal Deputy Administrator, Wage and Hour Div. v. International Technologies, Inc. , ARB No 14-064, ALJ No. 2013-LCA-35 (ARB June 30, 2014), where the Respondent had a motion for reconsideration pending before the ALJ prior to filing its petition for review with the ARB, the ARB found that the case was not yet ripe for its consideration because the ALJ had not yet issued a final decision. The ARB stated that it would hold the petition for review in abeyance, and that the Respondent must notify the ARB within 30 days after the ALJ's decision on reconsideration if it still wanted ARB review. The other parties were also to file within 30 days of the ALJ's decision on reconsideration if they sought ARB review.

UNTIMELY AMENDMENT OF COMPLAINT; RELATION BACK CRITERIA FOR AMENDMENT OF COMPLAINT IS NOT MET WHERE § 11(c) COMPLAINT BEFORE OSHA FOCUSED EXCLUSIVELY ON WORK SAFETY ISSUES AND NOT MISCONDUCT COVERED UNDER SOX, 18 U.S.C.A. § 1514A

In Brown v. Teamstaff Government Solution , ARB No. 13-008, ALJ No. 2012-SOX-31 (ARB June 27, 2014), the Complainant filed an OSHA § 11(c) complaint on December 1, 2011, the subject of which was complaints to management about exposure to prescription drugs at a Consolidated Mail Outpatient Pharmacy. On June 11, 2012, the Complainant sent a letter to OSHA informing that she was "amending" her OSH Act complaint to add a SOX claim alleging that the Respondent repeatedly under-reported or completely failed to report workplace injuries and illnesses in order to contain worker’s compensation premiums and healthcare costs. OSHA dismissed the OSH Act complaint on the merits and the SOX complaint on the ground that it was not timely. The Complainant requested an ALJ hearing. The ALJ issued an order to show cause why the SOX complaint should not be dismissed as untimely. The Complainant raised "relation back" and "equitable modification" arguments. The ALJ rejected those arguments and dismissed the SOX complaint as untimely. The ALJ noted the relationship between ALJ Rule 18.5(e) (amendments and supplement pleadings) and FRCP 15 (relation back of amendments), and concluded that the amended complaint did not satisfy the relation back criteria. The ARB affirmed because "the SOX claim alleged in [the Complainant’s] June 11, 2012 amended complaint did not reasonably fall within the scope of the facts asserted in the original complaint she filed with OSHA on December 1, 2011." The ARB wrote

    Before filing a complaint with OALJ, the SOX regulations require a complainant to file a complaint with OSHA and wait for OSHA to investigate the complaint if it meets the regulatory requirements to justify an investigation. The facts asserted in the December 1, 2011 complaint did not alert OSHA of a SOX complaint because the first complaint focused exclusively on work safety issues, not on any misconduct connected to mail fraud; wire, radio, or TV fraud; bank fraud; fraud upon shareholders; or a violation of a securities law. Brown did not present a timely SOX complaint to OSHA to investigate and neither 29 C.F.R. § 18.5 nor Fed. R. Civ. P. 15 permits her to file such a complaint with the OALJ in this case. We also agree with the ALJ that Brown failed to raise sufficient grounds to equitably toll the running of the 180-day statute of limitations.

USDOL/OALJ Reporter at 6 (footnotes omitted).

Approval of settlement agreement

[STAA Digest IV A 1]
ALJ'S DISCUSSION OF FACTS UNDER THE McDONNELL-DOUGLAS ANALYTICAL FRAMEWORK DID NOT PREVENT THE ARB FROM AFFIRMING THE ALJ'S DECISION WHERE THE ALJ ULTIMATELY APPLIED THE CORRECT POST-2007 AMENDMENT STAA BURDENS OF PROOF, AND THE ALJ'S PRETEXT ANALYSIS SUPPORTED THE FINDINGS PERTAINING TO "CONTRIBUTORY CAUSE"

In Blackie v. D. Pierce Transportation, Inc. , ARB No. 13-065, ALJ No. 2011-STA-55 (ARB June 17, 2014), the ARB, citing its recent decision Beatty v. Inman Trucking Mgmt. , ARB No. 13-039, ALJ No. 2008-STA-20 (ARB May 12, 2014), affirmed the ALJ's decision finding that the Respondent violated the STAA when it terminated the Complainant's employment, even though the ALJ had employed the McDonnell-Douglas prima facie case/pretext analysis (as erroneously sanctioned by former ARB caselaw). Despite employing the McDonnell-Douglas burden-shifting analysis, the ALJ also made rulings under the correct standard of proof under the STAA as amended in 2007. Further, the ALJ's findings on pretext were supportive of his weighing of the circumstantial evidence in the case, which together with evidence of proximity between the protected activity and the adverse action, supported the ALJ's finding that the preponderance of the evidence established that the protected activity was a contributing factor in the Respondent's decision to take adverse employment action against the Complainant. In a concurring opinion, one member of the Board noted that the McDonnell-Douglas analytical framework "overcomplicates and muddies" the ultimate "contributory cause" question and that an "ALJ need not go through the confusing mental ping pong required by the McDonnell Douglas framework."

ARB REVIEW OF FEE AND COSTS PETITION FOR WORK BEFORE THE COURT OF APPEALS AND SUBSEQUENT REMAND

In Clemmons v. Ameristar Airways, Inc. , ARB No. 12-105, ALJ No. 2004-AIR-11 (ARB June 17, 2014), the Complainant submitted a fees and costs petition for litigating the Respondents' appeal before the 5th Circuit and a subsequent remand to the ARB. The ARB reviewed the fee petition and found that it adequately described the legal services rendered, that such services were appropriate, and that the number of hours was reasonable in view of the issues addressed in the case. The ARB also found that the attorney and non-attorney hourly rates were in line with prevailing legal fees. The ARB also found, in any event, that the Respondent had not contested the requested fees and costs. One member of the Board concurred, indicating that the fact that the Respondent did not contest the fee application was sufficient.

In Joyner v. Georgia-Pacific Gypsum, LLC , ARB No. 12-028, ALJ No. 2010-SWD-1 (ARB June 17, 2014), the ARB issued an Erratum to correct the inadvertent reversal of the appearances for the Complainant and the Respondent on the caption of the decision.

WHERE COMPLAINANT DID NOT PARTICIPATE AS A PARTY BEFORE THE ALJ, OR VOICE AN OBJECTION WHILE THE MATTER WAS BEFORE THE ALJ TO A SETTLEMENT REACHED BETWEEN THE PROSECUTING PARTY (THE WAGE AND HOUR DIVISION ADMINISTRATOR) AND THE RESPONDENT, THE ARB DECLINED TO DISTURB THE SETTLEMENT AGREEMENT ON APPEAL

In Mikami v. Administrator, Wage and Hour Div., USDOL , ARB No. 13-005, ALJ No. 2012-LCA-25 (ARB June 16, 2014), the Complainant petitioned for ARB review of the ALJ's Decision and Order Approving Consent Findings. The Wage and Hour Division Administrator had issued a determination assessing back wages and a civil money penalty against the Respondent. The Respondent appealed, which under the regulations made the Administrator the Prosecuting Party before the ALJ. The Complainant, who was the H-1B worker whose complaint had instigated the Wage and Hour Division investigation, did not request a hearing. Nor did he request permission from the ALJ to participate either as an intervening party or amicus. Thus, he was not a party-participant before the ALJ. The Administrator's attorney informed the Complainant's attorney that the Administrator/Prosecuting Party and the Respondent had reached a settlement. The ALJ subsequently approved the settlement agreement. The Complainant petitioned for review of the ALJ's approval of the settlement. The ARB declined to disturb the settlement agreement given the Complainant's failure to participate in the ALJ proceedings or to assert any objection to the settlement during those proceedings. The ARB noted that the Complainant may not have been personally responsible for that non-participation and failure to object during the ALJ proceedings, but that parties are held to the acts and omissions of their freely chosen representatives.

[Nuclear and Environmental Digest VII D 6]
ALJ'S DISMISSAL OF TWO COMPLAINTS CONSOLIDATED FOR HEARING BASED ON RESPONDENT'S MOTION TO DISMISS SECOND COMPLAINT; ARB REINSTATES FIRST COMPLAINT WHERE ALJ'S ORDER TO SHOW CAUSE DID NOT GIVE NOTICE THAT FAILURE TO RESPOND WOULD BE DISPOSITIVE OF BOTH COMPLAINTS

In Madry v. Emlab P&K, LLC , ARB No. 13-049, ALJ Nos. 2013-TSC-1, 2013-CAA-3 (ARB June 6, 2014), on November 1, 2012, OSHA issued a Findings Letter finding reasonable cause to believe that the Respondent violated the TSCA and CAA by giving the Complainant a negative performance appraisal, placing him on a performance improvement plan, and requiring a psychological assessment -- but no reasonable cause to believe that the Complainant's termination violated the TSCA and CAA. On November 13, 2012, the Respondent sent the Complainant a settlement offer that included a waiver-of-reinstatement provision. The Complainant refused the offer and filed a second complaint with OSHA alleging that the waiver-of-reinstatement provision was a violation of the TSCA, CAA and other environmental employee protection laws. On November 27, 2012, the Complainant requested an ALJ hearing on his first complaint. On December 20, 2012, OSHA found no reasonable cause on the second complaint. On January 17, 2013, the Complainant requested an ALJ hearing on the second complaint, and suggested that the two matters be consolidated for hearing. The Respondent moved to dismiss the second complaint on the ground that the waiver-of-reinstatement provision was not an adverse action under the TSCA or CAA. The Complainant, who was appearing pro se, failed to respond to the motion to dismiss, and the ALJ issued an Order to Show Cause. The Complainant then obtained counsel, who responded stating that the Complainant had no objection to dismissal of the second complaint. The response was silent as to the first complaint. The ALJ, noting that the Order to Show Cause had stated the motion to dismiss was dispositive, found that the Complainant had defaulted, and dismissed the entire claim. On appeal, the ARB employing an abuse of discretion standard of review on the ALJ's default ruling, reversed, finding that there was no motion pending for dismissal of the first complaint, and that the Order to Show Cause did not give notice to the Complainant that the ALJ would dismiss the first complaint. The ARB found that the ALJ was within his discretion is dismissing the second complaint, but erred in sua sponte dismissing the first complaint.

One member of the Board concurred, finding that the majority had erroneously employed an "abuse of discretion" standard of review on the ALJ's dismissal of the first complaint because (1) failure to provide notice and opportunity to respond is a matter of due process and not a matter within the ALJ's discretion, and (2) under the ARB's caselaw, summary decision is reviewed de novo.

[Editor's note: The ALJ had treated the Respondent's motion to dismiss as a motion for summary decision because the Respondent had attached exhibits to its motion. See Madry v. Emlab P&K LLC , 2013-TLC-1, 2013-CAA-3 (ALJ Mar. 25, 2013).]

[STAA Digest IV A 1]
STAA ANALYTICAL FRAMEWORK; 2007 AMENDEMENTS REPLACED THREE-STEP TITLE VII-DERIVED FRAMEWORK WITH TWO-STEP AIR21 FRAMEWORK

In White v. Action Expediting, Inc. , ARB No. 13-015, ALJ No. 2011-STA-11 (ARB June 6, 2014), the ALJ had recited the correct burden of proof standards applicable to STAA whistleblower complaints, but in denying the complaint relied upon Title VII case law to find that the Respondent established legitimate, non-discriminatory, non-retaliatory reasons independent of the Complainant's protected activity for terminating the Complainant's employment, and that the Complainant failed to establish that these reasons were pretextual. Citing its recent decision in Beatty v. Inman Trucking Mgmt , ARB No. 13-039, ALJ No. 2008-STA-20 (ARB May 12, 2014), the ARB found that although it had sanctioned use of the Title VII framework in past decisions, the 2007 amendments to the STAA replaced the three-step Title VII framework and replaced it with the two-step AIR21 framework, which is more protective of complainant-employees and much easier for complainant-employees to meet. The AIR21 framework involves only two steps: the complainant has the burden of proving that protected activity was a "contributing factor" in the unfavorable personnel action; the respondent then has the burden to establish by "clear and convincing evidence" that it would have taken the same adverse personnel action had there been no protected activity. The ARB remanded to the ALJ for further consideration consistent with the ARB's decision.

REMOVAL OF CLAIM TO FEDERAL COURT

In Pittman v. Siemens AG , ARB No. 14-046, ALJ No. 2013-SOX-29 (ARB June 5, 2014), neither party responded to the ARB's order to show cause why it should not dismiss the administrative complaint based on the Complainant's notice of removal to district court under 18 U.S.C. § 1514A(b)(1)(B). Accordingly, the ARB granted the Complainant's motion to withdraw so that he could proceed in district court.

DENIAL OF PETITION FOR INTERLOCUTORY REVIEW

In Gupta v. Headstrong, Inc. , ARB No. 14-058, ALJ No. 2014-LCA-8 (ARB June 4, 2014), the ARB denied the Prosecuting Party's petition for interlocutory review of certain ALJ orders where the Prosecuting Party had not obtained a certification from the ALJ (the ALJ having denied a motion for such certification) and had not demonstrated exceptional circumstances sufficient to persuade the ARB to exercise its discretionary authority to accept an interlocutory appeal. The ALJ had denied a request to include an additional party, ruled that Headstrong, Inc. was the sole respondent in the matter, and denied a motion for default against Headstrong.

WHEN CONDUCTING AN LCA ENFORCEMENT INVESTIGATION, THE WAGE AND HOUR DIVISION "MAY" GO TO THE EMPLOYMENT AND TRAINING ADMINISTRATION FOR A PREVAILING WAGE DETERMINATION, BUT HAS THE DISCRETION TO MAKE THE PWD WITHOUT RESORT TO ETA; ARB AFFIRMS ALJ'S "REASONABLENESS OF METHODOLOGY" REVIEW OF WHD'S ASCERTATION OF PW RATE

In Administrator, Wage and Hour Div., USDOL v. Advanced Professional Marketing, Inc. , ARB No. 12-069, ALJ No. 2008-LCA-17 (ARB June 3, 2014), the Wage and Hour Division (WHD) conducted an investigation of the Respondents' LCA, and found a number of violations. The WHD calculated back wages owed. Where the WHD found that the prevailing wage determinations (PWD) reported in the LCA were inaccurate, or where the LCA was missing, the WHD used the OES Wage Survey to determine the rate for the back wages. The Respondents argued that the WHD violated 20 C.F.R. § 655.731(d) by assigning the PWD without going to the Employment and Training Administration (ETA). The Respondents argued that ETA is the specialist and correct institution to make prevailing wage determinations, and failure to use ETA deprived the Respondents of access to the § 655.731(d)(2) complaint system as intended by the regulations. Before the ALJ, the Respondents introduced into evidence a section of the WHD Field Operations Handbook (FOH) which indicated that the WHD must go to ETA for the PWD. The ALJ acknowledged that the FOH contained mandatory language, but held that the governing regulations were the binding authority and were permissive on the point of going to ETA for a PWD. On appeal, the ARB affirmed the ALJ's holding.

The ARB reviewed the regulatory framework for establishing the PWD for a LCA. An employer has the opportunity, prior to filing the LCA, of obtaining a PWD from the ETA Office of Foreign Labor Certification. Such a PWD cannot be further reviewed during the enforcement or litigation phase of a WHD investigation. In the instant case, however, the Respondent did not take that opportunity. During the investigation, a number of the relevant LCAs were missing and the Administrator challenged other of the Respondents' LCA-PWDs. The WHD therefore assigned PWDs based on the OES Wage Surveys based on information extrapolated from the available documentation. The ARB quoted the regulation at § 655.731(d)(1), which states that the WHD Administrator "may' contact ETA for a PWD. The ARB found that the plain language of the regulation established that the Administrator's decision to go to ETA for the PWD is discretionary, and does not forbid the Administrator from establishing its own prevailing wage for the purpose of assessing back wages. The ARB rejected the Respondents' contention that they were denied the ability to dispute the assigned wages before ETA, finding that the Respondents' right to such review was conditioned on the Administrator seeking a PWD from ETA. The ARB noted that the ALJ had carefully reviewed the methodology used by the WHD to determine the wage rates at issue and found it to be reasonable. The ARB noted that the WHD used the same source of wage data (the OES Wage Survey) that the Respondents had used in most of the LCAs, and indicated that the WHD investigator had used reasonable extrapolations from the available documentation. The ARB agreed with the WHD Administrator that "where the prevailing wage is readily ascertainable, it would be inefficient to mandate resort to ETA." Slip op. at 11. The ARB agreed with the ALJ that FOH provision was not controlling in light of the regulation.

The Respondents argued that the ALJ erred by reviewing the validity of the PWDs because the regulation at 20 C.F.R. § 655.840(c) states that "[u]under no circumstances shall the administrative law judge determine the validity of the wage determination…." The ARB stated that the Respondents had taken this language out of context because that language appears to pertain solely to review of a PWD obtained from ETA. Moreover, the ARB noted that the ALJ had not assessed "the accuracy or validity of the wage determination but instead considered the reasonableness of the Administrator's methodology of ascertaining the prevailing wage rates." Slip op. at 13.

One member of the ARB wrote a concurring opinion explaining that he disagreed with the majority's conclusion that the Administrator has the authority to establish prevailing wages for an H-1B LCA enforcement action other than through the ETA process. This member, however, concurred with the majority's ultimate decision because (1) the Respondent had not shown how its procedural objection would lead to any different result, and (2) the Respondent had a two year period during which it knew about and participated in the WHD investigation, but raised no procedural objection before the Administrator's determination letter. The concurring member would have found the objection untimely under the particular circumstances of the case.

SETTLEMENT BEFORE THE ARB; ARB'S REVIEW OF SETTLEMENT AGREEMENT INCLUDED JOINT REQUEST FOR ATTORNEY'S FEES AND COSTS FOR PROCEEDINGS BEFORE BOTH THE ALJ AND THE ARB

In Griebel v. Union Pacific Railroad Co. , ARB No. 13-038, ALJ No. 2011-FRS-11 (ARB June 2, 2014), while the matter was pending on appeal before the 8th Circuit Court of Appeals, the parties notified the court that it had reached a settlement. The court remanded to the ARB for approval of the settlement and any outstanding issues. The parties jointly moved the ALJ for approval of fees and costs for proceedings before the ALJ, and the ARB for fees and costs for proceedings before it. The ALJ entered an order finding that the fees agreed upon appeared to be part of the settlement that was before the ARB for approval, and therefore jurisdiction to approve the fees part of the settlement rested with the ARB rather than the ALJ. On review, the ARB approved the settlement agreement, including the joint request for attorney's fees, costs, and expenses associated with proceedings before both the ALJ and the ARB.