USDOL/OALJ Reporter: ARB Decision Caselist - June 2018

FILING OF FRSA COMPLAINT IN U.S. DISTRICT COURT ENDS DOL JURISDICTION; ARB DISMISSES PENDING APPEAL UPON LEARNING OF DISTRICT COURT ACTION

On August 23, 20 17, the Complainant in Guerra v. Consolidated Rail Corp. (Conrail) , ARB No. 2017-069, ALJ No. 2017-FRS-47 (ARB June 29, 2018), petitioned the ARB for review of the ALJ’s order dismissing his FRSA retaliation complaint. In its June 29, 2018, Order Dismissing Appeal, the ARB noted that in Guerra v. Consolidated Rail Corp. , No.: 2:17-cv-6497, 2018 WL 2947857 (D. N.J. June 13, 2018), the district court granted Conrail’s motion to dismiss the Guerra’s whistleblower complaint on the grounds that he failed to timely file it with OSHA. The ARB found that because the Complainant chose to proceed in district court pursuant to 49 U.S.C.A. § 20109(d)(3), the Department of Labor no longer has jurisdiction over the case. The ARB noted that it had no record of receiving notice of the filing of the district court complaint as required by 29 C.F.R. § 1982.114(c).

CERTIFICATE OF SERVICE; REPEATED FAILURE TO INCLUDE CERTIFICATE ON FILINGS RESULTS IN ARB NOTIFYING OFFENDING PARTY THAT IT WILL ACCEPT NO FURTHER DOCUMENTS FOR FILING UNLESS THEY INCLUDE THE REQUIRED CERTIFICATE OF SERVICE

In Smith v. Kareem Transportation , ARB No. 18-021, ALJ No. 2017-STA-60 (ARB June 29, 2018), the ARB denied the Complainant’s second motion for reconsideration. The ARB had dismissed the appeal because it was not clear that the Complainant intended to petition for ARB review and because the Complainant failed to respond to an order to show cause why the ARB should accept the petition given that it was not timely filed. In his first motion for reconsideration, the Complainant submitted documents concerning the merits of the case, but did not discuss the lack of timeliness of the petition. The ARB denied the motion. In his second motion for reconsideration, the Complainant again filed documents supporting the merits of his case. The ARB denied the motion because it had not dismissed the appeal on the merits, but based on the failure to respond to the order to show cause concerning the timeliness of the petition. The ARB also noted that "once again" the Complainant failed to attach a certificate of service to his documents establishing that he served them on Respondent and its counsel, the date of service, and the address at which they were served. The ARB stated that it “ will accept no further documents from Smith unless they include the required certificate of service.” USDOL/OALJ Reporter at 2 (emphasis as in original).

The ARB dismissed a FRSA case pending before it upon the Complainant’s filing of a notice of the filing of action in U.S. district court.

[STAA Digest V B 2 d]
PROTECTED ACTIVITY; REFUSAL TO DRIVE; PROTECTED ACTIVITY NOT ESTABLISHED WHERE COMPLAINANT FAILED TO ESTABLISH THAT HE HAD A REASONABLE BELIEF THAT ASSIGNMENT WOULD EXCEED HOURS-OF-SERVICE LIMIT AND WHERE EVIDENCE SHOWED THAT ASSIGNMENT DID NOT CONTEMPLATE AN HOURS-OF-SERVICE VIOLATION

In Mauldin v. G & K Services , ARB No. 16-059, ALJ No. 2015-STA-54 (ARB June 25, 2018), the ARB affirmed the ALJ’s determination that the Complainant did not engage in an STAA protected refusal to drive where objective evidence in form of a covert tape recording the Complainant made of his conversation with his manager supported the Respondent’s contention that the Complainant was not given an assignment that contemplated an hours-of-service violation. Rather, the manager had instructed the Complainant to obtain an overdue medical clearance and then “do what you can do on the route.” When the Complainant said that would be five or six stops, the manager said “whatever it is.” The ALJ found that the evidence showed that “Complainant’s instructions were to get his DOT physical and then finish as much of the route as he could without violating the maximum hours.” The ALJ further noted that the Complainant tended to overstate time because he felt that, as a salaried employee, he was being cheated every time he exceeded an eight hour work day or 40 hours in a week. This tendency impeached his hearing testimony that had he completed more stops he would have exceeded the 14-hour limit. The testimony did not meet the reasonable belief test.

[STAA Whistleblower Digest V A]
[STAA Digest V B 2 d]
PROTECTED ACTIVITY; ARB DECLINES TO ACQUIESCE IN RULING OF 11TH CIRCUIT IN KOCH FOODS THAT TO BE PROTECTED UNDER THE STAA, A REFUSAL TO DRIVE MUST BE BASED ON AN ACTUAL VIOLATION OF SAFETY LAWS IF THE VEHICLE WAS OPERATED; RATHER, ARB APPLIES A “SUBJECTIVELY AND OBJECTIVELY REASONABLE BELIEF OF A VIOLATION” STANDARD

In Mauldin v. G & K Services , ARB No. 16-059, ALJ No. 2015-STA-54 (ARB June 25, 2018), the ARB noted that the ALJ had cited Minne v. Star Air, Inc. , ARB No. 05-005, ALJ No. 2004-STA-26 (ARB Oct. 31, 2007) for the premise that if a complainant’s protected activity is a refusal to drive under 49 U.S.C.A. § 31105(a)(1)(B)(i), he must prove that driving would have resulted in an actual violation. The ARB disavowed this premise, writing:

But more recent ARB precedent holds that the complainant must demonstrate a subjectively and objectively reasonable belief of a violation. Gilbert v. Bauer’s Worldwide Transp. , ARB No. 11019, ALJ No. 2010-STA-022, slip op. at 7 (ARB Nov. 28, 2012). In Koch Foods, Inc. v. Sec’y Dep’t of Labor , 712 F.3d 476, 486 (11th Cir. 2013), the Eleventh Circuit ruled that refusals to drive must be based on an actual violation. But we are not bound by the Eleventh Circuit’s opinion as this case falls within the ambit of a different circuit. Instead, we continue to adhere to the Board’s opinion in Bailey v. Koch Foods, LLC , ARB No. 14-041, ALJ No. 2008-STA-061, slip op. at 3 n.6 (ARB May 30, 2014)(holding that a complainant’s refusal to drive, based upon a subjectively and objectively reasonable belief in a violation, constitutes protected activity under 49 U.S.C.A. § 31105(a)(1)(B)(i)); see also Boone v. TFE, Inc. , No. 1990-STA-007, slip op. at 3 (Sec’y July 17, 1991), aff’d Trans Fleet Enters., Inc. v. Boone , 987 F.2d 1000, 1004 (4th Cir. 1992)(a dispatch that contemplates a violation of the hours-of-service regulations violates the refusal to drive provision even if the driver had available driving time at the outset of the run).

USDOL/OALJ Reporter at 5 n.12.

SERVICE CONTRACT ACT; WHERE PRINCIPAL PURPOSE OF A COMMERICAL SHOPPING CENTER FOR MILITARY PERSONNEL WAS TO FURNISH SERVICES, THE ADMINISTRATOR PROPERLY FOUND THAT RETAIL SUBLEASES ARE SUBCONTRACTS COVERED UNDER THE SCA

In Servicestar Landmark Properties-Fort Bliss LLC , ARB No. 17-013 (ARB June 25, 2018), the ARB affirmed the Wage and Hour Division Administrator’s finding that “the principal purpose of the contracts for construction and operation of ‘Freedom Crossing,’ a commercial shopping center on the military installation at Fort Bliss, Texas, is to furnish services through the use of service employees.” The ARB also affirmed the Administrator’s conclusion “that the partial exemption for Davis-Bacon covered contracts does not apply and the retail subleases are subcontracts that are covered by the SCA.”

[STAA Digest IX B 2 b iii]
BACK PAY; ALJ DID NOT ERR BY ORDERING BACK PAY UNTIL A BONA FIDE OFFER OF REINSTATEMENT WAS MADE, EVEN THOUGH IT INCLUDED A PERIOD IN WHICH THE COMPLAINANT COULD NOT HAVE WORKED DUE TO AN INJURY

In Butler v. Neier, Inc. , ARB No. 16-084, ALJ No. 2014-STA-68 (ARB June 22, 2018), the Respondent asserted that the ALJ erred by awarding back pay during a period in which the Complainant could not have worked due to a workers’ compensation injury. The ARB, however, agreed with the ALJ that the Complainant’s “injury in the past is not a bar to his reinstatement in the future and, under ruling precedent, liability for back pay continues until the employer makes a bona fide, unconditional offer of reinstatement.” USDOL/OALJ Reporter at 13. The ARB held that the award of back pay would stand until the Respondent made a bona fide offer of reinstatement.

[STAA Whistleblower Digest V A]
[STAA Digest V B 2 d]
PROTECTED ACTIVITY; ARB DECLINES TO ACQUIESCE IN RULING OF 11TH CIRCUIT IN KOCH FOODS THAT TO BE PROTECTED UNDER THE STAA, A REFUSAL TO DRIVE MUST BE BASED ON ACTUAL VIOLATION OF SAFETY LAWS IF THE VEHICLE WAS OPERATED; RATHER, ARB APPLIES A “SUBJECTIVELY AND OBJECTIVELY REASONABLE BELIEF OF A VIOLATION” STANDARD

In Butler v. Neier, Inc. , ARB No. 16-084, ALJ No. 2014-STA-68 (ARB June 22, 2018), the ARB found that substantial evidence supported the ALJ’s finding that the Complainant engaged in protected activity under the STAA where he refused a dispatch that would have resulted in an hours of service violation when the Complainant’s attendance at a mandatory safety meeting was factored in. Although the Respondent advanced a different interpretation of the evidence on appeal, the ARB declined to reweigh the evidence—the ALJ being the trier of fact.

The Respondent argued that the ALJ erred by not requiring the Complainant to establish that his refusal to drive was based on the fact that operation of his truck would actually violate safety laws. This standard was stated in Koch Foods, Inc. v. Sec’y Dep’t of Labor , 712 F.3d 476 (11th Cir. 2013). The ARB replied:

The Eleventh Circuit’s decision conflicts with ARB precedent and we are not bound by it in cases outside the Eleventh Circuit and do not acquiesce in it. This case arises within the appellate jurisdiction of the United States Court of Appeals for the Seventh Circuit. The Seventh Circuit has not followed the ruling in Koch Foods, Inc. that to be protected, a refusal to drive under Section 31105(a)(1)(B)(i) must be based on the fact that operation of the vehicle would actually violate safety laws. The ALJ found that Butler engaged in protected activity because he correctly believed that he could not take the dispatch without violating the hours of service rules. Under the objective, reasonable person standard, Butler’s correct belief was borne out by the preponderance of the evidence as comprehensively analyzed and weighed by the ALJ.

USDOL/OALJ Reporter at 8-9 (footnotes and citations omitted). The ARB noted: “Although the Seventh Circuit has favorably cited Koch Foods, Inc. , the citation refers only to protected complaints, not refusals to drive. See Gaines v. K-Five Constr., Corp. , 742 F.3d 256, 269 (7th Cir. 2014) (citing Koch Foods, Inc. , 712 F.3d at 482-83 (recognizing that a complaint is protected under Section 31105(a)(1)(A)(i) if it was based on a reasonable belief or perception that a company was engaged in a violation of a motor vehicle safety violation)).” Id . at 9 n.3. The ARB’s interpretation of the statute is that “for a refusal to be protected under the STAA, § 31105(a)(1)(B)(i), the complainant must demonstrate a subjectively and objectively reasonable belief of a violation. Gilbert v. Bauer’s Worldwide Transp. , ARB No. 11-019, ALJ No. 2010-STA-022, slip op. at 7 (ARB Nov. 28, 2012) (noting that refusals do not need to be based on actual violations to be protected under STAA)….” Id . at 7.

[STAA Digest II J]
TIMELINESS OF FILING WITH THE ARB; ARB CONSIDERS DATE OF SERVICE OF PROCESS/MAILING TO BE THE DATE OF FILING

In Butler v. Neier, Inc. , ARB No. 16-084, ALJ No. 2014-STA-68 (ARB June 22, 2018), the Respondent argued that the Complainant’s brief was not timely and should not be considered. The Complainant argued that the brief was timely because “the ARB considers the date of service of process/mailing as the date of filing and that date was timely….” USDOL/OALJ Reporter at 2 n.1. The ARB agreed with the Complainant, and considered the brief.

CONTRIBUTING FACTOR CAUSATION; ARB REMANDS TO OALJ WHERE 8TH CIRCUIT FOUND THAT ALJ USED AN IMPROPER “CHAIN-OF-EVENTS” ANALYSIS, AND THAT THE ARB’S AFFIRMANCE ON A DIFFERENT ANALYSIS WAS NOT SUPPORTED BY THE RECORD AND THAT ARB HAD MISSTATED THE SCOPE OF ITS DECISION IN LEDURE ; IN REMAND TO OALJ, ARB NOTES DISAGREEMENT WITH 8TH CIRCUIT’S REMAND ABOUT NEED TO FIND ANIMUS, CITING 8TH CIRCUIT’S KUDUK DECISION

In Carter v. BNSF Railway Co. , ARB Nos. 14-089, 15-016, -022, ALJ No. 2013-FRS-82 (ARB June 21, 2018), the ARB remanded the case to the Office of Administrative Law Judges for further proceedings consistent with the decision of the Eighth Circuit in BNSF Ry. Co. v. United States DOL Admin. Review Bd. , 867 F.3d 942 (8th Cir. 2017). The ARB described the court’s ruling as follows:

   The court determined that the ALJ ascribed to a “flawed chain-of-events causation theory,” “erred in interpreting and applying the FRSA, and failed to make findings of fact that are critical to a decision applying the proper legal standard.” Specifically, the ALJ failed to make findings of fact regarding whether Carter’s supervisors targeted him, if there was discriminatory animus against Carter, if BNSF in good faith believed that Carter was guilty of the conduct justifying discharge, if Carter’s FELA lawsuit provided BNSF with “more specific notification” about Carter’s injury report, and about credibility issues. Further, the court found that the Board exceeded its scope of review to the extent it filled in missing findings and “misstat[ed] the scope of [our] decision in Ledure .” Because the ALJ order could not be upheld, the Eighth Circuit vacated the Board’s decision and remanded.

USDOL/OALJ Reporter at 2-3 (footnotes omitted). In regard to the court’s finding that the ALJ failed to make a finding on whether there was discriminatory animus, the ARB noted that “the Court in Kuduk v. BNSF Ry. Co. , 768 F.3d 786, 791 (8th Cir. 2014) explicitly recognized that, under the FRSA’s ‘contributing factor’ causation standard, a complainant need not demonstrate ‘retaliatory motive.’” Id . at 2, n.6.

[Editor’s note: The Eighth Circuit in BNSF Ry. Co. v. United States DOL Admin. Review Bd. , 867 F.3d 942 (8th Cir. 2017), said the following about the ALJ’s “chain-of-events” analysis:

The ALJ’s chain-of-events theory of causation is contrary to judicial precedent construing the causation element of an FRSA retaliation claim. As the Seventh Circuit explained in Koziara v. BNSF Ry. , to hold that protected activity is a “contributing factor” to an adverse action simply because it ultimately led to the employer’s discovery of misconduct “is a further example of confusing a cause with a proximate cause. … Absent sufficient evidence of intentional retaliation, a showing that protected activity initiated a series of events leading to an adverse action does not satisfy the FRSA’s contributing factor causation standard.

Id . at 946 (footnote omitted). The court noted that the ARB had not endorsed the ALJ’s chain-of-events analysis, but then found that the ARB grounded its affirmance on findings insufficient to support the ARB’s contributing factor and affirmative defense rulings. The court stated: “The ARB was unable to salvage an ALJ analysis built upon a flawed theory of causation because the ARB lacked critical fact findings needed to affirm the ALJ’s decision when applying the appropriate legal standard. To the extent the ARB filled in the missing findings, it exceeded its scope of review.” Id . at 949 (citation omitted). The court also found that the ARB had misinterpreted its own decision in LeDure v. BNSF Ry. Co. , ARB No. 13-044, ALJ No. 2012-FRS-020, slip op. at 5 (ARB June 2, 2015), agreeing with the concurring ARB member in Carter v. BNSF Railway Co. , ARB Nos. 14-089, 15-016, 15-022, ALJ No. 2013-FRS-82 (ARB June 21, 2016) that “ LeDure held only that the FRSA protects a notice of injury made in the course of FELA litigation, not that FELA litigation is per se protected by the FRSA.”]

[STAA Digest II P]
[STAA Digest V A 2 a]
SUMMARY DECISION ON CAUSATION ELEMENT OF STAA COMPLAINT; ARB AFFIRMS ALJ’S GRANT OF SUMMARY DECISION WHERE RESPONDENT SUBMITTED DOCUMENTATION SUPPORTING COMPLAINANT’S DISCHARGE TO WHICH COMPLAINANT’S ONLY RESPONSE WAS TO CHARGE THAT THE RESPONDENT’S WITNESSES SUBMITTED THE DECLARATIONS IN BAD FAITH AND CONTAINED PERJURED INFORMATION

In Budri v. FirstFleet, Inc. , ARB No. 18-025, ALJ No. 2017-STA-86 (ARB June 19, 2018), the ARB summarily affirmed the ALJ’s grant of summary decision on the issue of causation in a STAA whistleblower case. The Respondent had provided documentation with its motion for summary decision showing that it fired the Complainant for causing accidents, failing to report accidents, failing to deliver a time-sensitive order, driving on a flat tire rather than waiting for a service crew, and being barred from a customer’s facility. The Complainant’s only response was to assert that the Respondent’s witnesses’ declarations were submitted in bad faith and contained perjured information. In ruling on the motion, the ALJ noted that there was undisputed evidence that the Respondent had immediately remedied a burned out bulb, took no action against the Complainant after a discussion on logging time, and that all of the alleged protected activity happened prior to the incidents cited as the basis for the Complainant’s termination. The ARB found that the Complainant’s evidence was insufficient to create a genuine issue of material fact on the issue of causation.

[Nuclear & Environmental Digest VII B 1 h]
SETTLEMENT CONTINGENT ON DEPARTMENT OF ENERGY APPROVAL AND FULFILLMENT OF CONTINGENCIES; ARB STAYS REVIEW OF AGREEMENT UNTIL APPROVAL AND FULFILLMENT RESOLVED

In Ladd v. Babcock & Wilcox Conversion Services , ARB Nos. 17-019, -020, -065, ALJ Nos. 2013-ERA-10, 2016-ERA-5 (ARB June 19, 2018), the parties submitted to the ARB for approval a Settlement and Release Agreement concerning two ERA whistleblower complaints filed by the Complainant. Upon reviewing the documents, the ARB noted that the agreement was contingent upon the Respondent receiving notice from the U.S. Department of Energy (DOE) that DOE approved the settlement of the civil actions between the Respondent and the DOE. The ARB, declining to approve an agreement that would be null and void if certain contingencies were not met, issued an order for the parties to submit status reports regarding DOE approval. Once the parties submitted a joint status report asserting that DOE approved the settlement and the contingencies were fulfilled, the ARB reviewed and approved the settlement in regard to the ERA whistleblower complaints.

The ARB vacated its Final Decision and Order of June 12, 2015 and dismissed the Complainant’s FRSA complaint based on the Second Circuit’s decision in Metro-North Commuter R.R. Co. v. United States Dep’t of Labor , 886 F.3d 97 (2d Cir. Mar. 23, 2018). In Metro-North , the ARB had affirmed the ALJ’s determination that the Respondent denied, delayed, or interfered with the Complainant’s medical treatment for a back injury. The Second Circuit, however, concluded that the ALJ’s determination was not supported by substantial evidence.