Dolan v. Aero Micronesia, Inc., ARB Nos. 2020-0006 and -0008, ALJ No. 2018-AIR-00032 (ARB June 30, 2021) (per curiam) (Decision and Order)
WHERE, DESPITE STATING THAT A LATER AIR21 COMPLAINT ALLEGING REDUCED HOURS AND RETALIATORY DISCHARGE WAS NOT BEFORE HIM, THE ALJ PERMITTED ALL EVIDENCE AND TESTIMONY ON THOSE MATTERS, AND HAD FOUND A LACK OF NEXUS BETWEEN PROTECTED ACTIVITY AND THE TERMINATION ON A RECORD THAT WAS CLEAR ON THE POINT, THE ARB FOUND THE ALJ’S STATEMENT WAS HARMLESS ERROR
In Dolan v. Aero Micronesia, Inc., ARB Nos. 2020-0006 and -0008, ALJ No. 2018-AIR-00032 (ARB June 30, 2021) (per curiam), Complainant was a pilot who filed an AIR21 complaint in 2015 alleging retaliation for several protected activities. The ARB summarily affirmed the ALJ’s Decision and Order where it was supported by substantial evidence, and none of the parties’ arguments demonstrated abuse of discretion or reversible error by the ALJ. The ALJ had dismissed some of the AIR21 retaliation claims as untimely raised, or because Complainant had not carried his burden of proof – but found that Complainant had carried his burden on one incident.
In the Decision and Order, the ALJ had stated that the complaint before him was limited to Complainant’s 2016 filing, and that the Decision and Order would not materially discuss allegations made by Complainant in a 2017 filing with OSHA in which Complainant alleged reduction of flight hours and a retaliatory termination. Complainant argued on appeal that the ALJ should have considered the 2017 complaint, while Respondent noted that Complainant had not introduced the 2017 complaint during the hearing, and it was still pending before OSHA. OSHA filed an amicus brief recommending a remand for a clear ruling by the ALJ on the 2017 retaliatory termination claim.
The ARB determined that the ALJ’s statement about the 2017 complaint was harmless error, and that the ALJ had in fact resolved the termination issue on a clear record. The ARB stated:
- Throughout the proceedings, the ALJ permitted all evidence and testimony concerning Complainant’s reduced hours and termination into the record, and his analysis fully considered both adverse employment actions. Ultimately, he found that the termination had no nexus to an activity protected under AIR 21. As such, we find that the record is clear on this point, and a remand for the ALJ to consider Complainant’s termination from employment is unnecessary. Accordingly, we summarily AFFIRM the ALJ’s D. & O.
Slip op. at 7.
Ho v. Air Wisconsin Airlines, ARB No. 2020-0027, ALJ No. 2019-AIR-00009 (ARB June 30, 2021) (per curiam) (Decision and Order)
ARB EMPLOYS AN ABUSE OF DISCRETION STANDARD OF REVIEW OF ALJ’S DISMISSAL OF COMPLAINT AS SANCTION FOR REFUSAL TO COOPERATE IN DISCOVERY
DISMISSAL FOR CAUSE; ARB AFFIRMS DISMISSAL WHERE COMPLAINANT FAILED TO COOPERATE IN DISCOVERY DESPITE ALJ’S REPEATED EFFORTS TO GET HIM TO PARTICIPATE IN GOOD FAITH, AND LESSER SANCTION WOULD NOT HAVE BEEN EFFECTIVE
In Ho v. Air Wisconsin Airlines, ARB No. 2020-0027, ALJ No. 2019-AIR-00009 (ARB June 30, 2021) (per curiam), the ALJ granted Respondent’s third motion to dismiss Complainant’s AIR21 complaint as a sanction for failing to cooperate in discovery. The ALJ had previously denied two prior motions, instead taking actions to try to get Complainant to cooperate. Applying an abuse of discretion standard of review, the ARB affirmed the ALJ’s sanction of dismissal.
The ARB began by stating the ALJ’s authority in this regard:
- ALJs have an inherent authority to “manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Failure to comply with a judge’s order may result in sanctions, which includes dismissal of the proceeding. When determining whether dismissal is warranted, there are several factors an ALJ may consider, including: (1) prejudice to the other party, (2) the amount of interference with the judicial process, (3) the culpability, willfulness, bad faith or fault of the litigant, (4) whether the party was warned in advance that dismissal of the action could be a sanction for failure to cooperate or noncompliance, and (5) whether the efficacy or lesser sanctions were considered.
Slip op. at 4 (footnotes omitted). In the instant case, the ALJ had taken in account Complainant’s status as a self-represented litigant, provided three warning of the potential consequences of failure to cooperate in discovery, provided multiple opportunities for compliance, and postponed the hearing twice to provide more time for discovery. Complainant’s responses to interrogatories were incomplete or evasive, and he repeatedly disregarded the ALJ’s orders to participate in discovery (as, for example, walking out of deposition despite Respondent having hired a Cantonese interpreter to assist Complainant). Complainant acknowledged that he willfully refused to participate in a deposition, and implied that he was trying to run out the clock on the discovery deadline. The ALJ also had considered Complainant’s refusal to comply with her earlier orders, and determined that a lesser sanction would be ineffective. The ARB found that the ALJ had applied the correct legal standard and thoroughly considered all five factors. The ARB also found that the procedural background supported the ALJ’s reasoning.
The ARB summarily rejected Complainant’s argument that the ALJ had not considered Respondent’s alleged offer of bribe – the ARB finding that this was a settlement offer. The ARB also rejected Complainant’s argument that Respondent had not requested dismissal, finding instead that the ALJ had granted Respondent’s third request for dismissal. The ARB rejected Complainant’s argument that the ALJ denied him an equal opportunity to conduct discovery, finding that Complainant had not complied with the ALJ’s instruction that all discovery requests had to be made thirty days prior the deadline for completion of discovery. The ARB noted lack of evidence to support Complainant’s contention that there was a partnership between Respondent and the ALJ. Rather, the ARB found that the ALJ acted with extreme patience and professionalism to encourage Complainant to participate in the hearing in good faith. Thus, the ARB found that the ALJ did not abuse her discretion in dismissing the case with prejudice.
Manoharan v. HCL America, Inc., ARB No. 2021-0031, ALJ Nos. 2018-LCA-00029, 2021-LCA-00009 (ARB June 30, 2021) (per curiam) (Order Dismissing Interlocutory Appeal)
INTERLOCUTORY REVIEW; ARB DENIES INTERLOCUTORY REVIEW OF ALJ RULINGS GRANTING PARTIAL SUMMARY DECISION WHERE THE RULINGS WERE ON MERITS ISSUES, FULLY REVIEWABLE ON APPEAL ONCE THE ALJ ISSUES A FINAL DECISION
INTERLOCUTORY REVIEW; ARB DENIES INTERLOCUTORY REVIEW OF ALJ’S DECISION TO DENY MOTION TO RECUSE BECAUSE DISQUALIFICATION ISSUES ARE FULLY REVIEWABLE ON APPEAL ONCE THE ALJ ISSUES A FINAL DECISION
In Manoharan v. HCL America, Inc., ARB No. 2021-0031, ALJ Nos. 2018-LCA-00029, 2021-LCA-00009 (ARB June 30, 2021) (per curiam), the Complainant (an H-1B worker), sought interlocutory review by the ARB of the ALJ’s order granting summary decision on a LCA wage claim, but denying on Respondent’s motion to dismiss a retaliation claim. Complainant specifically contended that the ALJ incorrectly determined the period of time that Respondent was obligated to pay the required wages, erred in findings that there was not a genuine issue of material fact regarding when Complainant entered into employment with Respondent, and incorrectly determined Complainant’s last date of authorized employment. The ARB found that these were merits issues, fully reviewable on appeal once the ALJ issued a final decision, and that the collateral order exception did not apply.
Complainant also sought interlocutory review of the ALJ’s order denying Complainant’s motion to recuse. The ARB, however, stated that it “has held that the denial of a recusal motion is not subject to interlocutory review because disqualification issues are fully reviewable on appeal from the ALJ’s final decision.” Slip op. at 4, citing Dann v. Bechtel SAIC Co., LLC, ARB No. 2005-0150, ALJ Nos. 2005-SDW-00004 to -00006, slip op. at 3 (ARB Oct. 31, 2005).
Administrator, Wage and Hour Div. v. Vasquez Drywall, LLC, ARB No. 2021-0036, ALJ No. 2020-FLS-00004 (ARB June 29, 2021) (per curiam) (Order Granting the Administrator's Motion to Dismiss Appeal)
The ARB dismissed the WHD Division’s petition for review where the Administrator filed a notice that she had determined that she will not pursue an appeal in the matter.
Yadav v. Frost Bank, ARB No. 2020-0048, ALJ No. 2020-SOX-00017 (ARB June 24, 2021) (per curiam) (Order Dismissing Complaint)
UNTIMELY FILING OF COMPLAINT; FILING WITH THE FBI FOUND NOT TO SUPPORT EQUITABLE TOLLING WHERE COMPLAINANT HAD NOT ASSERTED THAT THE FILING WAS A SOX COMPLAINT
DISMISSAL OF COMPLAINT; ALJ GAVE COMPLAINANT AMPLE OPPORTUNITY TO AMEND HIS COMPLAINT BEFORE GRANTING RESPONDENT’S MOTION TO DISMISS, WHERE THE ALJ HAD ORDERED COMPLAINANT TO FILE A BILL OF PARTICULARS, AND THEN ISSUED AN ORDER DIRECTING COMPLAINANT TO PROVIDE ADDITIONAL FACTUAL INFORMATION ABOUT TIMELY ALLEGATIONS OF ADVERSE ACTION; REVIEWING THE MATTER DE NOVO, THE ARB DISMISSED THE COMPLAINT AS EITHER RAISING ALLEGATIONS OUTSIDE THE LIMITATIONS PERIOD, OR WHICH FAILED TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED
In Yadav v. Frost Bank, ARB No. 2020-0048, ALJ No. 2020-SOX-00017 (ARB June 24, 2021) (per curiam), OSHA dismissed Complainant’s SOX Section 806 complaint on the grounds that it was not timely filed. In a conference call with the ALJ, the parties agreed to resolve potentially dispositive issues before setting a hearing date, and the ALJ directed Complainant to file a bill of particulars listing each alleged adverse action and the date of each action, and explaining why each action was retaliatory unless self-evident (such as a suspension or termination). After Complainant filed his bill of particulars, Respondent filed a motion to dismiss based on the complaint not being timely and equitable tolling not being warranted. Complainant replied that Respondent’s managers and employees were conspiring against him. The ALJ issued an order finding that Complainant had alleged seven instances of adverse action, and found that the complaint was untimely except as to an allegation alleging the release of derogatory information and libel. The ALJ ordered Complainant to identify the dates any such information had been released or communicated, to whom it was released, and what the information was. Complainant’s response failed to provide the descriptions the ALJ ordered. The ALJ issued an order dismissing the remaining claims for failure to state a case upon which relief can be granted.
The ARB conducted de novo review, and found that the complaint was not timely as to most of the actions. The ARB rejected Complainant’s argument that he was entitled to equitable tolling because he filed a complaint with the FBI, because he had not asserted that a SOX claim was filed with the FBI. As to the timely claims of libel and release of derogatory information, the ARB found that the complaint, the bill of particulars, and the response to the ALJ’s order, did not indicate adverse personnel actions taken by Respondent, but only repeated vague accusations about legal proceedings separate from the instant SOX complaint. The ARB found that the ALJ had given “the complainant every reasonable opportunity to amend his complaint to clarify whether it stated a cause of action cognizable under SOX, and he failed to do so.” Slip op. at 6 (footnote omitted). Moreover, the ARB, upon its own review, had been “unable to discern any grounds to find a possible cause of action under the relevant statute,” and found that Complainant’s allegations were either untimely or failed to state a claim upon which relief can be granted. The ARB thus denied the complaint.
Jamek Engineering Services, Inc., ARB No. 2020-0043, ALJ No. 2017-DBA-00021 (ARB June 23, 2021) (per curiam) (Decision and Order Affirming in Part, Reversing in Part and Vacating and Remanding)
CALCULATION OF WAGES RELATING TO DBA AND DBRA VIOLATIONS; ALJ ERRED IN USING CERTIFIED PAYROLL RATHER THAN INTERNAL PAYROLL JOURNAL, WHERE DOING SO FAILED TO TAKE INTO ACCOUNT DEDUCTIONS FOR UNION DUES
LATE AND INACCURATE PAYROLL RECORDS; EXCUSES THAT ACCOUNTANT WAS INEXPERIENCED AND THAT A CITY’S EMPLOYEE’S ABSENCE CAUSED SOME PAYROLLS TO BE LATE FOUND UNPERSUASIVE AND NOT SUPPORTED BY LEGAL AUTHORITY; REMAND TO ALJ, HOWEVER, WAS REQUIRED TO CONSIDER WHETHER CERTIFICATIONS CONCERNING QUARTERLY FRINGE BENEFIT PAYMENTS TO UNION WERE INACCURATE AT THE TIME MADE, WHERE PETITIONER HAD LATER BEEN UNABLE TO MAKE THE PAYMENTS TIMELY BECAUSE OF WITHHOLDING OF PAYMENTS BY THE CONTRACTOR
DEDUCTIONS FOR UNION INITIATION FEES; ARB REJECTED CONTENTION THAT SUCH DEDUCTIONS WERE LAWFUL BECAUSE THE COLLECTIVE BARGAINING AGREEMENT DID NOT PROHIBIT THEM
DEBARMENT; DBA AND DBRA REGULATIONS HAVE DIFFERENT STANDARDS FOR DEBARMENT; DBRA REGULATIONS APPLY TO CONTRACTS ON A GOVERNMENT-FUNDED CONSTRUCTION PROJECT; DBA REGULATIONS APPLY WHEN THE U.S. GOVERNMENT IS A PARTY TO A CONTRACT FOR CONSTRUCTION WORK ON PUBLIC BUILDINGS; REMAND PERMITTED ALJ TO REQUEST ADDITIONAL BRIEFING ON WHETHER DBA STANDARD APPLIED TO THE FACTS OF THE CASE
In Jamek Engineering Services, Inc., ARB No. 2020-0043, ALJ No. 2017-DBA-00021 (ARB June 23, 2021) (per curiam), the ALJ found that Petitioner (Jamek Engineering Services, Inc., and its owner James Ekhator) violated the labor standards of the Davis-Bacon Act (DBA) and “Related Acts” (DBRA) in regard to its painting subcontracting work on a project for the City of St. Paul, Minnesota. The ALJ debarred Petitioner from federal contract work for three years. The ALJ found that Petitioner failed to pay its painters the prevailing wage rate for a portion of the project; failed to maintain the ratio of journeymen to apprentices required by the applicable collective bargaining agreement (CBA) during a large part of the project, and thus failed to pay the apprentices the prevailing wage rate; failed to make timely contributions to the applicable fringe benefits fund, despite being aware of the requirement from a previous Wage and Hour Division investigation; failed to file timely and accurate certified payrolls; and violated the Copeland Act by deducting union initiation fees because the CBA did not permit the deductions and no regulatory exception applied.
ALJ error in using certified payrolls rather than internal payroll journal in calculating wages paid
On appeal, Petitioner contested the ALJ’s finding that the certified payrolls, rather than the internal payroll journal, represented the wages its employees received. Petitioner noted that the difference in gross pay reflected the exact amount deducted for the union dues and that the net pay in both records was the same. The Administrator agreed that the ALJ erred. The ARB also noted that the CBA required Petitioner to deduct $2.05 per hour in “Check-off Dues” from the journeymen’s pay, which the journal listed as “Union Dues.” The ARB thus reversed the ALJ’s finding that the certified payroll records reflected the actual wage rate, and remanded for the ALJ to recalculate the wages paid to the journeymen. The ARB also determined that the ALJ needed to recalculate the wages owed to the apprentices based on the certified payrolls, and that on remand the ALJ could consider the parties arguments concerning how restitution payments made by Petitioner should be taken into account when calculating the amount owed to the apprentices.
Late and inaccurate payrolls
Petitioner argued that the ALJ erred in finding that it violated the DBRA by submitting late and inaccurate payrolls. While Petitioner did not deny that it left employees off certain payrolls, submitted payrolls late several times, and stated that it was making the required fringe benefits contributions despite paying the contributions late, it contended that the deficiencies were unintentional and should be excused for several reasons, such as its accountant’s inexperience, and its contention that a several week absence by its point of contact with the City of St. Paul prevented timely payroll submissions because the point of contact needed perform a certain action in the software used. The ARB dismissed the contentions as unpersuasive and lacking legal support. The ARB, however, remanded for the ALJ to consider whether Petitioner’s certification of payment of fringe benefits were accurate at the time made because Petitioner had anticipated that it would be making the payments at the time of the certification. Petitioner argued that it had later been unable to make the payments because the contractor withheld payment to Petitioner on the contract work after cancelling the contract, and that Statement of Compliance for the payrolls did not give an option to distinguish whether the contributions “had been or would be” paid to the fund.
Union initiation fee deductions
The ARB rejected Petitioner’s argument that the union initiation fee deductions were lawful because the CBA did not prohibit it. The ARB stated: “However, the CBA’s failure to prohibit the deductions does not make them permissible, because the DBRA requires for a CBA to ‘provide for’ specific deductions. The CBA here does not provide for such deductions. Rather, it permits deductions for ‘administrative dues . . . for each hour worked or paid for.’ The union initiation fee was a flat fee that did not relate to the hours the employees worked. Conversely, administrative check off dues are tied to the amount an employee works.” Slip op. at 11 (emphasis as in original) (footnotes omitted).
Nor was the ARB persuaded by Petitioner’s argument that the CBA did not prohibit it from classifying the deductions as a “loan agreement” between employee and employer. The ARB found that none of the authorized deductions under the Copeland Act regulations at 29 C.F.R. § 3.5 applied.
Debarment
Because the ALJ’s determination that debarment was warranted relied on his finding that Petitioner submitted inaccurate payroll information regarding its fringe benefit contributions—a finding that the ARB had vacated and remanded for the ALJ’s reconsideration—the ARB also vacated the debarment determination and remanded on that issue. Although the ARB found that the ALJ properly considered debarment under the DBRA standards, it vacated and remanded on the ALJ’s decision to debar under the DBA standards. The ARB noted that the DBRA and DBA each have their own standard for ordering debarment, and that while the DBRA covers contracts for work on a government-funded construction project, the DBA covers contracts for construction work on public buildings to which the U.S. Government is a party. Here, the contract did not include the U.S. Government as a party. The ARB suggested that on remand the ALJ could request supplemental briefing as to whether the DBA’s debarment standard was applicable to the instant contract.
The ARB affirmed the ALJ’s decision in all other aspects.
Chambers v. BNSF Railway Co., ARB No. 2019-0074, ALJ No. 2018-FRS-00086 (ARB June 11, 2021) (per curiam) (Order Denying Motion for Reconsideration)
The ARB denied Complainant’s motion for reconsideration where it did not present any new evidence or change in controlling law, but only a contention that the ARB had not addressed every issue raised by Complainant. The ARB stated that it had “already carefully considered the evidentiary record as a whole and the parties’ briefs on appeal, including the arguments Complainant highlights again in his Motion for Reconsideration.” Slip op. at 2-3 (footnote omitted).
Clem v. Computer Sciences Corp., ARB No. 2020-0025, ALJ Nos. 2015-ERA-00003, -00004 (ARB June 11, 2021) (per curiam) (Order Awarding Attorneys’ Fees)
The ARB granted Complainant’s petition for attorneys’ fees for work before the ARB. Although Respondent filed a response to the petition, it did not discuss or contest any of the fees claimed by counsel for Complainant for their work before the ARB, and instead opposed some attorneys’ fees and costs incurred before the ALJ. The ARB thus deemed the petition for attorneys’ fees for work before the ARB unopposed.
Dohogne v. Terminal Railroad, ARB No. 2020-0044, ALJ No. 2018-FRS-00050 (ARB June 11, 2021) (per curiam) (Order of Dismissal)
The ARB dismissed Complainant's appeal where she did not respond to an order to show cause why the appeal should not be dismissed for failure to prosecute, Complainant having failed to file an appellate brief.