USDOL/OALJ Reporter
Decisions of the Administrative Review Board
July 2005

Forrest v. Dallas and Mavis Specialized Carrier Co. , ARB No. 04-052, ALJ No. 2003-STA-53 (ARB July 29, 2005)

Title : Final Decision and Order

  • Link : PDF
  • Case type : STAA Whistleblower
  • Summary :

    • Timeliness of brief : The ARB exercised its discretion to consider the pro se Complainant's untimely brief where he did not receive the ALJ's recommended decision in a timely manner because the Complainant was working �over the road� at the time the ALJ's decision was served.

    • Employer-employee relationship : A respondent carrier that operated through independent contractor drivers, paid its independent contractors a percentage of gross receipts, screened drivers to make sure they qualified under its liability insurance and DOT regulations, but did not engage in the hiring or firing decisions of its independent contractors, who were responsible for withholding state and federal taxes and providing workers� compensation and unemployment insurance for their own employees, was not the Complainant's employer within the meaning of the STAA.

Friday v. Northwest Airlines, Inc. , ARB No. 03-132, ALJ Nos. 2003-AIR-19 and 20 (ARB July 29, 2005)

Title : Final Decision and Order

  • Link : PDF
  • Case type : AIR21 Whistleblower
  • Summary :

    • Discovery; summary decision : The ALJ did not abuse his discretion in denying the Complainant's motion for additional discovery filed after the ALJ had limited discovery to the issues presented in the Respondent's motion for summary decision.

    • Timeliness of complaint : A complaint that revocation of the Complainant's retirement travel pass was in retaliation for safety complaints was not timely where the revocation occurred two years prior to the complaint; a more recent letter merely confirmed that the travel pass revocation was still in effect.

    • Adverse employment action : The Respondent's letter to the Complainant threatening to report him for the unauthorized practice of law if he appeared as a representative in a worker's grievance proceeding was not adverse action under AIR 21; the letter was not related to the Complainant's compensation, terms, conditions, or privileges as a medically-retired former employee of the Respondent.

    • Adverse employment action : The Complainant, a medically disabled retiree, was banned from the Respondent's property and argued that the ban was related to compensation, terms, conditions, or privileges of his employment relationship with the Respondent because it would prevent him from returning to work. The ALJ found that this was not a cognizable ground to establish an adverse employment action, being based on a �a theoretical argument based on a theoretical fact which may never occur.� The ARB affirmed.

Getman v. Southwest Securities, Inc. , ARB No. 04-059, ALJ No. 2003-SOX-8 (ARB July 29, 2005)

Title : Final Decision and Order

  • Link : PDF
  • Case type : Sarbanes-Oxley Whistleblower
  • Summary :

    • Protected Activity : The Complainant was a stock analyst appearing before a company stock review committee. The ALJ erred as a matter of law in holding that the Complainant's refusal to change her stock rating, done in the presence of her managers, was protected activity. The Board wrote: "In our view, her unspecified 'refusal' [to sign her name to a 'strong buy' recommendation] was not sufficient to 'provide information' to a person with supervisory authority relating to a violation. In the context of a review committee meeting between an analyst and her supervisor, where disagreement over a rating may be a normal part of the process, the analyst must communicate a concern that the employer's conduct constitutes a violation in order to have whistleblower protection."

Minkina v. Affiliated Physician's Group , ARB No. 05-074, ALJ No. 2005-SOX-19 (ARB July 29, 2005)

Title : Final Decision and Order Dismissing Appeal

  • Link : PDF
  • Case type : Sarbanes-Oxley Whistleblower
  • Summary :

    • Timeliness of request for Board review : Equitable grounds for tolling the period for requesting Board review were not established based on the Complainant's inability to find an attorney nor her confusion over the appeal period. The ALJ's notice of appeal rights informed her of the process and it was her obligation to read it carefully.

McNeill v. Crane Nuclear Inc. , ARB No. 02-002, ALJ No. 2001-ERA-3 (ARB July 29, 2005)

Title : Final Decision and Order

  • Link : PDF
  • Case type : ERA Whistleblower
  • Summary :

    • Claim preclusion : Since the Complainant could not have litigated his ERA whistleblower complaint along with his state common law whistleblower complaint in federal court, a federal court judgment in the state claim did not not bar the DOL proceeding.

    • Admissibility of evidence of remedial action : The ALJ did not err in receiving into evidence an internal memo detailing remedial actions taken after two engineers had complained of being fired for objecting to a deficient work package where it was being used for impeachment, as permitted by FRE 407

    • Adverse employment action : Telling workers to "go home" if they would not do an assigned job is not proof that the workers were fired.

    • Adverse employment action : Even though an internal memo detailing remedial actions taken by a manager after two engineers had complained of being fired for objecting to a deficient work package referred to a "termination," other evidence of record established that the person who purportedly fired the engineers had no authority to do so.

    • Adverse employment action : Placing a temporary "administrative hold" on the unrestricted access of two workers was not adverse employment action where such action did not sever the employment relationship or change the workers' clearance status; the Board found that the record did not support the Complainant's claim that this action harmed his job prospects at nuclear facilities because he would henceforward be required to report that his unrestricted access clearance had been denied at the Respondent's facility.

    • Adverse employment action : The Respondent did not engage in adverse employment action where the Complainant suffered, at most, only temporary unhappiness. The record established that a manager immediately and thoroughly aborted any adverse consequences when he recognized that the matter had not been properly handled by the Complainant's immediate supervisor.

Sabin v. Yellow Freight System, Inc. , ARB No. 04-032, ALJ No. 2003-STA-5 (ARB July 29, 2005)

Title : Final Decision and Order Dismissing Complaint

  • Link : PDF
  • Case type : STAA Whistleblower
  • Summary :

    • Motion for stay : The ALJ did not abuse his discretion in denying the Complainant's motion for a stay presented on the eve of the hearing because he wanted to continue the STAA action until the resolution of a state court action he intended to file (the Complainant not wanting to pay attorney's fees for two actions). The Complainant had ample notice of the hearing date and gave no reason for waiting until the eve of the hearing to present his motion.

    • Withdrawal of objections to findings : When OSHA has found against a complainant and the complainant withdraws his objections to the findings, the result is a final order upholding the OSHA findings. The ALJ's dismissal of the matter under such circumstances is �with prejudice� insofar as a complainant could not thereafter refile a complaint in the DOL alleging the same facts.

    • Costs imposed against complainant : The ALJ did not have the authority to award to the Respondent $150 for the attendance of its witness on the scheduled hearing date where the Complainant withdrew his objections to the OSHA findings at the hearing. The ARB distinguished Hester v. Blue Bell Servs. , 1986-STA11 (Sec�y July 9, 1986), because this was not a case in which the Complainant was allowed to take a voluntary dismissal conditioned on payment of the opposing parties� costs.

Santiglia v. Sun Microsystems, Inc. , ARB No. 03-076, ALJ No. 2003-LCA-2 (ARB July 29, 2005)

Title : Final Decision and Order

  • Link : PDF
  • Case type : Labor Condition Application (H-1B non-immigrant worker)
  • Summary :

    • Posting and Public Access; Substantial and Wilful Violations : The ARB affirmed the ALJ's finding that the Respondent violated the posting and public access requirements of the Immigration and Nationality Act but that neither of these violations was substantial or willful. The ARB also affirmed the ALJ's determination that she would not assess any civil money penalties but only order the Respondent to change its posting practices. The Respondent had posted one notice at headquarters and one notice the worksite rather than two at the worksite. The ALJ found that the Prosecuting Party had been denied access for several months, but that this was not a substantial or willful violation because the Prosecuting Party had been given access both prior to and afterwards, and the reason he had been denied access was because of employee concerns over his past angry behavior while reviewing the files.

    • Withdrawal of Administrator : The ALJ did not unfairly prejudice the Prosecuting Party in granting Administrator's motion to withdraw where the Administrator was not a party when the Prosecuting Party requested a hearing and did not choose to exercise her discretion to intervene or appear as amicus curiae. The effect of the withdrawal had been that ESA's investigators were not made available to testify.

    • Burden of proof : The regulation at 20 C.F.R. § 655.705(c)(5), which states that �The employer shall develop sufficient documentation to meet its burden of proof with respect to the validity of the statements made in its LCA and the accuracy of information provided, in the event that such statement of information is challenged� does not change the Prosecuting Party's burden of proof at the hearing; the party who requests a hearing before an ALJ in an LCA case is the prosecuting party.

    • Motion in limine : ALJ properly granted motion in limine requesting exclusion of an allegation that the Respondent filed improper "blanket LCAs" where this allegation had not been included in the complaint filed with or investigated by Wage and Hour.

    • Jurisdiction to determine what constitutes a speciality occupation : The ARB affirmed the ALJ's ruling that she did not have jurisdiction to rule on the Prosecuting Party's argument that the positions for which the Respondent filed LCAs are not 'specialty occupations� and that, therefore, the LCAs should not have been approved; only the INS (USCIS) has the authority to determine what constitutes a 'specialty occupation.� See 20 C.F.R. § 655.715 and 20 C.F.R. § 655.705(b).

    • Hearsay : Hearsay is admissible in administrative proceedings concerning the INA. See 20 C.F.R. § 655.825(b).

    • Public access file; prevailing wage rate : The ARB affirmed the ALJ's interpretation of 20 C.F.R. § 655.760 (a)(2) as not requiring an employer to make available to the public the specific wage rate it pays to specific H-1B workers.

McDowell v. Eagle Express Lines, Inc. , ARB No. 04-095, ALJ No. 2004-STA-32 (ARB July 28, 2005)

Title : Final Decision and Order

  • Link : PDF
  • Case type : STAA Whistleblower
  • Summary :

    • Untimely filing of complaint : The ARB affirmed the ALJ's holding that the complaint was untimely filed.

Ass't Sec'y & Briney v. Exel Logistics , ARB No. 04-075, ALJ No. 2004-STA-5 (ARB July 27, 2005)

Title : Final Order Approving Settlement and Dismissing Complaint
Link : PDF
Case type : STAA Whistleblower
Summary :

  • Approval of settlement agreement.

McIntyre v. Merrill Lynch Pierce Fenner & Smith, Inc. , ARB No. 04-055, 2003-SOX-23 (ARB July 27, 2005)

Title : Final Decision and Order Dismissing Appeal
Link : PDF
Case type : SOX Whistleblower
Summary :

  • Removal to District Court : The ARB dismissed the appeal where the Complainant had begun a proceeding in U.S. District Court seeking a de novo hearing on his SOX claim. The record did not show that the Complainant ever notified the ALJ or the ARB of this suit until after the ARB issued a briefing schedule.

Shaikh v. Vision Systems Group , ARB No. 04-094, ALJ No. 2004-LCA-5 (ARB July 27, 2005)

Title : Final Decision and Order Dismissing Complaint with Prejudice
Link : PDF
Case type : Labor Certification Application (H-1B non-immigrant worker)
Summary :

  • Withdrawal of Appeal : The Complainant took an appeal of an ALJ decision in which he found that the Respondent did not owe the Complainant back wages. The ARB approved a withdrawal of the appeal which had been agreed to in a settlement reached in state court. The Respondent had to seek enforcement actions in the state court to get the Complainant to comply with his agreement to withdraw the ARB appeal.

Stinger v. Science & Engineering Associates, Inc. , ARB No. 05-001, ALJ No. 2004-ERA-20 (ARB July 27, 2005)

Title : Final Decision and Order Dismissing Appeal
Link : PDF
Case type : ERA Whistleblower
Summary :

  • Interlocutory appeal; mootness : The ARB dismissed an interlocutory appeal of the ALJ's refusal to accept the Complainant's attorney's entry of appearance. The Complainant failed to respond to the ARB's order to show cause why the interlocutory appeal should not be dismissed as moot given that the Complainant had not appealed the ALJ's later recommended decision and order on the merits.

Edmonds v. Tennessee Valley Authority , ARB No. 05-002, ALJ No. 2004-CAA-15 (ARB July 22, 2005)

Title : Final Decision and Order Dismissing Appeal
Link : PDF
Case type : CAA whistleblower/FOIA request
Summary :

  • Dismissal of appeal; mootness : The Complainant requested the ARB to review a letter from the Chief ALJ responding to a FOIA request filed by the Complainant's counsel informing the Complainant that his counsel would not be permitted to file future FOIA requests on behalf of the Complainant because of an order issued by the Associate Chief ALJ denying the Complainant's attorney the right to represent parties before OALJ. The ARB issued an order directing the Complainant to demonstrate why his request was not moot given the Board's affirmance of the Associate Chief ALJ's order. (The Board also expressed doubt that it had the authority to review the Chief ALJ's letter at all). The Complainant did not respond and the ARB consequently dismissed the appeal.

Administrator, Wage & Hour Division, USDOL v. Wings Digital Corp. , ARB No. 05-090, ALJ No. 2004-LCA-30 (ARB July 22, 2005)

Title : Final Decision and Order Dismissing Appeal
Link : PDF
Case type : Labor Certification Application (H-1B non-immigrant worker)
Summary :

  • Timeliness of appeal : The ALJ had found that the Respondent owed over $78,000 in back wages and other liabilities. The Respondent's appeal to the ARB was several days late. The ARB held that neither the illness of the Respondent's representative nor his misinterpretation of the regulations established meritorious grounds for equitable tolling. The record indicated that the representative had apparently drafted the appeal within the limitations period despite a serious headache and fever, but had failed to either fax the appeal to the Board or telephone to request an enlargement of time. The ARB rejected the misinterpretation argument where the ALJ's notice of appeal rights provided unambiguous notice of the steps necessary to perfect an appeal.