USDOL/OALJ Reporter: ARB Decision Caselist -- July 2008

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Summary :

SUBSTANTIAL VARIANCE APPEAL MOOT WHERE COLLECTIVE BARGAINING AGREEMENT HAD ALREADY EXPIRED

In Am-Gard, Inc. , ARB Nos. 06-049, 06-050, ALJ No. 2006-CBV-1 (ARB July 31, 2008), the ARB dismissed appeals from the ALJ's ruling that the union did not prove that the collectively bargained wage rate paid to its members was substantially less than the local prevailing wage rate paid for similar services. Because the applicable collective bargaining agreement had expired, the issue before the ARB was now moot. The ARB wrote:

[E]ven if we decided that the ALJ erred and we found that a substantial variance existed, we could not retroactively apply such a finding. Regulations that implement the SCA clearly specify that only prospective relief is available, and that relief must be under the same contract or option period at issue. Administrative appeals under the SCA have been dismissed where no practical relief is available and only advisory decisions for future applications could be issued. This Board, however, "disfavors engaging in speculative adjudication of challenges to wage determinations."

USDOL/OALJ Reporter at 3-4 (footnotes omitted).

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Summary :

Approval of settlement agreement.

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Summary :

Approval of settlement agreement.

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Summary :

Approval of settlement agreement.

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Summary :

[STAA Digest II E 4]
DUE PROCESS; ALJ ERRED IN ADJUDICATING, OVER THE OBJECTION OF THE COMPLAINANT, A TERMINATION OF THE COMPLAINANT THAT OCCURRED SHORTLY BEFORE THE HEARING WHERE THE COMPLAINANT DID NOT HAVE ADEQUATE NOTICE THAT THE ISSUE WOULD BE HEARD

In Israel v. Schneider National Carriers, Inc. , ARB No. 06-040, ALJ No. 2005-STA-51 (ARB July 31, 2008), the Complainant filed a complaint with OSHA alleging that the Respondent had harassed and discriminated against him and had removed him from active employment for engaging in whistleblower activities. Shortly before the ALJ hearing, the Respondent terminated the Complainant's employment. The Respondent included evidence concerning the termination in its pre-hearing statement. At the hearing, believing it more efficient to hear the case in whole, the ALJ consolidated the termination with the original complaint filed with OSHA. The Complainant objected on the ground that he was not prepared to address his termination. On appeal that he argued that he was prejudiced by the ALJ's inclusion of his termination in the hearing. The ARB agreed, and remanded for further proceedings. The ARB found that the consolidation of the termination issue violated the Complainant's right to due process, and that the ALJ should have afforded the Complainant proper notice and time to conduct discovery and prepare a case against his termination. The ARB, however, was not convinced that the Complainant was entitled to a re-opening of the record. On remand, the ALJ was directed to conduct an inquiry into what additional discovery or evidence the Complainant would seek if the ALJ were to re-open the record. The ARB stated that the burden would be on the Complainant to put forward facts or witnesses that, if true, could result in a successful legal conclusion; if he could not do this, the ALJ could conclude that the Complainant is not entitled to a hearing and dismiss the case.

[STAA Digest II M]
MISCONDUCT; BOARD DOES NOT HAVE THE AUTHORITY TO IMPOSE RULE 11 SANCTIONS

In Israel v. Schneider National Carriers, Inc. , ARB No. 06-040, ALJ No. 2005-STA-51 (ARB July 31, 2008), the Complainant filed a motion with the ARB for Rule 11 sanctions, claiming that the Respondent made false accusations before the ALJ hearing. The Board denied the motion, writing:

   The Board may not impose Rule 11 sanctions. The Secretary has observed that "the incorporation of the Federal Rules in 29 C.F.R. § 18.29 is for purposes of procedure and case management to fill in any gaps where no specific provision in the Rules of Practice is applicable. . . . [The Federal Rules do] not give the Secretary the authority directly to impose sanctions and penalties if not otherwise authorized by law." Even if the Board could impose Rule 11 sanctions, Israel has failed to identify any pleadings, motions, or advocacy before the ALJ in which Rule 11 violations occurred.

USDOL/OALJ Reporter at 14-15.

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Summary :

Approval of settlement agreement.

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Summary :

TIMELINESS OF COMPLAINT

In Shelton v. Time Warner Cable , ARB No. 06-153, ALJ No. 2006-SOX-76 (ARB July 31, 2008), the ALJ properly dismissed the SOX complaint because it was filed more than 90 days after the adverse employment action. Earlier complaints to the Secretary of Labor and the Acting Assistant Secretary for OSHA presented claims pursuant to ERISA and Section 11(c) of the Occupational Safety and Health Act, but did not contain any allegation that the Respondent committed an act that constituted a violation of the SOX.

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Summary :

REMOVAL TO FEDERAL COURT AFTER THE ALJ ISSUED DECISION ON SUMMARY JUDGMENT; MANDAMUS FOR ARB TO ISSUE DECISION ON THE MERITS

On November 30, 2007, the ARB dismissed the Complainant's appeal in Stone v. Instrumentation Laboratory, SpA , ARB No. 07-122, 2007-SOX-21 (Nov. 30, 2007), after the Complainant filed a de novo action in federal district court on his SOX claim. On July 2, 2008, the district court stayed the proceedings before it and issued a mandamus to the DOL to reinstate the proceedings within 14 days and to order the ARB to rule on the merits of the Complainant's appeal within 90 days. Stone v. Instrumentation Laboratory, SpA , No. 07-cv-03191 (D.Md. July 2, 2008). The court also granted the Defendant's motion to dismiss. The court reviewed the law on collateral estoppel and found little authority on the subject under SOX. The court noted that in Allen v. Stewart Enterprises, Inc. , No. 05-4033 (E.D.La. Apr. 6, 2006), the court had stayed its proceedings and remanded for the ARB to rule on the merits on the ground that relitigating the case after it had been fully litigated before an ALJ and the Complainant had requested ARB review would be absurd. The court noted that in Hanna v. WCI Communities, Inc. , 348 F. Supp. 2d 1322 (S.D.Fla. 2004), the court found that OSHA's findings were entitled to neither res judicata nor collateral estoppel effect. The court noted that the Hanna court had stressed the absence of an ALJ or ARB decision in the matter. The court noted that in the case before him, unlike Hanna , the ALJ had issued a decision and the Complainant had filed an ARB appeal before suit in the federal court. The Complainant had an opportunity to fully litigate his claims, filing voluminous briefs, declarations, and supporting exhibits, which were considered by the ALJ in a 24 page decision. The court rejected the Complainant's claim that he was not afforded an adequate opportunity to litigate his claims because the ALJ dismissed without discovery and a hearing. The court found that discovery had not been necessary to resolve the legal issue before the ALJ. The court found that the ALJ's decision was a final judgment on the merits for purposes of collateral estoppel.

On July 14, 2008, the ARB issued an Order Reinstating Case and Establishing Briefing Schedule. In view of the fact that the district court had ordered expedited review, the ARB stated that it would grant no motions for enlargement of time to file briefs.

In Stone v. Instrumentation Laboratory, SpA , ARB No. 08-113, 2007-SOX-21 (ARB July 31, 2008), the ARB therefore dismissed the appeal on July 31, 2008 for failure to prosecute because the Complainant had refused to file a brief with the ARB. The Complainant had refused because "[he] believes that the ARB does not properly have jurisdiction over this matter since Stone filed his SOX claim in the United States District Court."

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Summary :

MANDATORY ARBITRATION; ALJ PROPERLY DISMISSED SOX COMPLAINTS AFTER COMPLAINANTS REPORTED THAT THEY WOULD NOT BE PURSUING ARBITRATION; LATER ARGUMENT THAT THE ARBITRATION WAS NOT MANDATORY WAS NOT CONSIDERED BECAUSE THE COMPLAINANTS' ATTORNEY HAD NOT ARGUED THAT POSITION PRIOR TO DISMISSAL

ANDATORY ARBITRATION; COMPLAINANTS FOUND TO HAVE THE BURDEN TO INITIATE ARBITRATION

In Ulibarri v. Affiliated Computer Services , ARB No. 07-003, ALJ No. 2005-SOX-46 and 2006-SOX-47 (ARB July 31, 2008), the Complainants filed SOX complaints, and the Respondent filed a motion with the ALJ to stay the proceedings arguing that the matter was governed by the company's Dispute Resolution Program (DRP), which compelled arbitration. The Complainants argued that the contract was void ab initio or, alternatively, that the Respondent had breached the DRP and thereby forfeited the right to compel arbitration. Following a hearing on the issue, the ALJ granted the stay. Months later, the Complainants had not proceeded to arbitration and the ALJ ordered them to show cause why the SOX complaints should not be dismissed. When they responded that they would not be pursuing arbitration, the ALJ dismissed the complaints. The Complainants then petitioned the ALJ to reconsider, arguing for the first time that their attorney had failed to highlight for them certain portions of the DRP that arguably excluded their SOX complaints from mandatory arbitration. They also argued for the first time that the dismissal was in error because the Respondent had not initiated the arbitration process. The ALJ denied the motion.

On appeal, the ARB found that the Complainants' attorney had specifically informed the ALJ that the challenge to the arbitration was limited to two grounds (void ab initio or breach). The ARB held that the new argument that the DRP did not mandate arbitration had not been presented by the Complainants' attorney and that they were bound by the attorney's argument. The ARB also found that the Respondent was under no obligation to initiate the arbitration under the language of the DRP or in the context of American jurisprudence generally. The Complainants were the aggrieved parties and it was their burden to initiate the arbitration process.

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Summary :

PART B BLACK LUNG CLAIM; IN ORDER TO QUALIFY FOR SURVIVOR'S BENEFITS AS A DISABLED ADULT CHILD OF THE MINER, THE DISABILITY MUST HAVE ARISEN PRIOR TO THE CHILD'S REACHING THE AGE OF 22

PART B HEARINGS ARE NON-ADVERSARIAL; ERROR FOR OWCP'S COUNSEL TO PARTICIPATE IN HEARING; ENTRY OF APPEARANCE OF OWCP'S COUNSEL, HOWEVER, NOT REVERSABLE ERROR WHERE NO PREJUDICE SHOWN

In R.L.H. v. Director, OWCP , ARB No. 08-075, ALJ No. 2007-BLA-5279 (ARB July 30, 2008), the ARB reviewed the denial of a claim for survivor's benefits of the adult disabled daughter of the deceased miner under Part B of the Federal Coal Mine Health and Safety Act. The ARB affirmed the ALJ's finding that the Claimant was not disabled before she turned twenty-two years old, as she must have been to qualify for survivor's benefits under Part B. 20 C.F.R. § 410.370.

On appeal, the Claimant referred to the fact that the Director's counsel entered an appearance at the hearing. The ARB observed that SSA hearings to determine a claimant's entitlement to benefits under the Black Lung Act were non-adversarial in nature, and to maintain the non-adversarial nature of such hearings, counsel for the Director, OWCP, may not participate at the hearing level in DOL proceedings under Part B of the Black Lung Act. The Claimant, however, did not allege any resulting prejudice to her case, and the ARB found none.

The Claimant's appeal was originally filed with the Benefits Review Board, but was transferred to the ARB according to the provisions of the Black Lung Consolidation of Administrative Disability Act.

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Summary :

[STAA Digest IV A 2 a]
LACK OF KNOWLEDGE OF PROTECTED ACTIVITY BY RESPONDENT; ARB FINDS SUBSTANTIAL EVIDENCE SUPPORTED ALJ’S FINDINGS THAT DOCUMENTATION PRESENTED BY COMPLAINANT FAILED TO SHOW THAT RESPONDENT’S OWNER KNEW ABOUT PROTECTED ACTIVITY PRIOR TO TERMINATION DECISION, AND THAT COMPLAINANT’S TESTIMONY ABOUT ORAL COMPLAINTS WAS NOT CREDIBLE

WHETHER ACTIONS BY COMPLAINANT ARE PROTECTED ACTIVITY, AND WHETHER RESPONDENT WAS AWARE OF THOSE ACTIONS ARE TWO DISTINCT QUESTIONS

In Davis v. Chem Canada Logistics, Inc. , ARB No. 08-075, ALJ No. 2006-STA-47 (ARB July 24, 2008), the ARB found that substantial evidence supported the ALJ’s decision finding the Complainant had not provide a  violation of the STAA.   The ARB found that the record supported the ALJ’s conclusion that the documentary evidence provided by the Complainant (notably, his travel logs containing complaints about safety problems) did not provide notice to the Respondent’s owner of the Complainant’s safety complaints prior to the owner’s decision to terminate the Complainant’s employment.  The ALJ thus, found that such documentation could not have influenced the termination decision.   In this regard, the ARB clarified a misstatement by the ALJ that the documentary evidence failed to establish protected activity.  Actions are not determined to be protected activity based on an employer’s knowledge of the actions.  Rather, knowledge of the protected activity by the respondent is separate component of the analysis of whether an STAA violation occurred.

 The ARB also found that substantial evidence supported the ALJ’s finding that the Complainant’s testimony was not credible that he made verbal reports of safety defects to the Respondent’s owner prior to the termination.   The ALJ cited Complainant’s testimony that he routinely delayed completion of his daily Driver’s Record of Duty Status, which diminished their probative value.  The ALJ also found that the content of those reports diminished the Complainant’s credibility.  The ALJ noted that the Complainant reported no safety defects on the status log of the first of two relevant trips despite his claim of oral complaints.  The ALJ also found indications that the second log had been changed, among other indicators of lack of credibility.  The ARB noted that the Complainant had the opportunity on appeal to challenge these findings by the ALJ, but had chosen not to do so.

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Summary :

PETITION FOR ARB REVIEW; SPECIFICITY REQUIREMENT

A blanket objection to of all of the ALJ's findings and conclusions does not satisfy the specificity requirement of 29 C.F.R. § 1980.110(a) for a petition for ARB review. Brookman v. Levi Strauss & Co. , ARB No. 07-074, ALJ No. 2006-SOX-36 (ALJ July 23, 2008).

PROTECTED ACTIVITY; COMPLAINT ALLEGING THAT COMPANY POLICY CAUSED DISCRIMINATION AGAINST HANDICAPPED EMPLOYEES; REASONABLE BELIEF STANDARD

The Complainant's letter to the Respondent's outside counsel complaining that the Respondent was violating its code of conduct and the Americans With Disabilities Act by requiring persons who needed service animals to work from home was not protected activity under SOX because it did not allege any of the enumerated fraud or securities violations prohibited under the SOX. Brookman v. Levi Strauss & Co. , ARB No. 07-074, ALJ No. 2006-SOX-36 (ALJ July 23, 2008). In Brookman , the ARB rejected the Complainant's argument that he was only required to demonstrate that he reasonably believed that an actual SOX violation had occurred. The ARB held that the Complainant had failed "to explain why an objectively reasonable employee in his situation would view a complaint regarding a company's discrimination against disabled employees as a violation of the fraud or securities violation provisions of SOX."

FILING OF COMPLAINT; ALJ MAY LIMIT CONSIDERATION OF ADVERSE ACTIONS TO THOSE STATED IN THE OSHA COMPLAINT AND OBJECTIONS TO THE OSHA RULING WHERE THE COMPLAINANT FAILED TO FILE A FORMAL COMPLAINT AS ORDERED BY THE ALJ

In Brookman v. Levi Strauss & Co. , ARB No. 07-074, ALJ No. 2006-SOX-36 (ALJ July 23, 2008), the ALJ ordered the Complainant to file a complaint specifically identifying the alleged protected activities and adverse actions supporting his case. The Employer filed a motion to dismiss based on the Complainant's failure to comply. By that time the Complainant was no longer represented by counsel, so the ALJ denied the motion to dismiss, but restricted the hearing to the allegations contained in the OSHA complaint and the Complainant's subsequent objections to the OSHA findings. On appeal, the Complainant alleged that a meeting he had with an attorney for the Respondent was an interrogation, and an adverse action under SOX. This meeting was not identified as adverse action in the original OSHA complaint or in the Complainant's objections to the OSHA finding. The ARB found that the "interrogation" was not adverse action given the ALJ's proper limitation of the actions to be considered as a result of the Complainant's failure to file a formal complaint as directed by the ALJ. The ARB found that the ALJ acted properly in not addressing the meeting in his recommended decision.

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Summary :

[Nuclear and Environmental Digest VI E]
TIMELINESS OF HEARING REQUEST; ATTORNEY WHO FAILED TO MAKE PROVISIONS FOR TIMELY FILING OF HEARING REQUEST WHILE SHE WAS AWAY FOR THE HOLIDAYS

In Comiskey v. BHE Environmental, Inc. , ARB No. 07-055, 2007-CER-1 (ARB July 22, 2008), the ARB affirmed the ALJ's dismissal based on an untimely request for an ALJ hearing where the only explanation proffered for the untimely request was that the Complainant's attorney had been absent from her office during the holiday season and was therefore not available to receive findings, which were issued on December 22, 2006, until January 3, 2007. At the time, the applicable regulations provided only five days from receipt of the OSHA findings to file a hearing request. In the instant case, the Atlanta OSHA regional office had informed the Complainant's attorney, who was also located in Atlanta, on December 19, 2006, that the findings would be sent via certified mail shortly before December 25, 2006. The Respondent received the findings in Cincinnati on December 26, and OALJ received its copy on December 27. As noted, the Complainant's attorney did not receive the certified letter until January 3, 2007. The Complainant filed the hearing request on January 9, 2007.

Noting that the expedited filing requirement for Part 24 had been strictly construed, the ARB faulted the Complainant's attorney for failing to make provisions to ensure that a timely request for a hearing could be filed in her absence. The ARB stated that parties cannot circumvent the regulations' expedited filing requirements by absenting themselves from their offices and making themselves unavailable to accept delivery of the OSHA findings. The ARB found that, especially in this case where the Complainant's counsel had been informed by OSHA that the findings were forthcoming, counsel had an obligation to her client to make arrangements to protect his rights. The ARB was not swayed by the argument that the Complainant's counsel was under the misapprehension that OSHA would also serve the Complainant.

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Summary :

POST-HEARING AMENDMENT OF PLEADINGS DENIED WHERE IT WAS BASED ON DIFFERENT FACTS AND OCCURRENCES THAN THE MATTERS IN LITIGATION

In Hoffman v. NetJets Aviation, Inc. , ARB No. 06-141, ALJ No. 2005-AIR-26 (ARB July 22, 2008), the ARB found that the presiding ALJ did not abuse his discretion in denying the Complainant's post-hearing motion to supplement the pleadings. The ARB stated that "[w]hile the ALJ rules allow for liberal amendment under 29 C.F.R. § 18.5(e), [the Complainant] has identified a post-hearing adverse action arising under a different set of facts and occurrences than the matters in litigation. The post-hearing consideration of the new evidence would prejudice [the Respondent]."

CLEAR AND CONVINCING EVIDENCE; DENIAL OF PROMOTION; EVIDENCE THAT COMPLAINANT DID NOT POSSESS IMPORTANT INTERNATIONAL EXPERIENCE, HAD SCORED POORLY, AND HAD NOT INTERVIEWED WELL

In Hoffman v. NetJets Aviation, Inc. , ARB No. 06-141, ALJ No. 2005-AIR-26 (ARB July 22, 2008), the ARB affirmed the ALJ's finding that the Respondent had established by clear and convincing evidence that it would have denied the Complainant a promotion even in the absence of protected activity. First, the Complainant did not have international experience being sought by the Employer, and possessed by most of the persons who were awarded the position. The Complainant alleged that the experience criterion was made up, but the Respondent countered with testimony noting the need for international experience prior to the bid. Second, the Complainant ranked 27th out of 30 applicants, and more than 13 applicants scored higher than Complainant. The ARB found that substantial evidence supported the ALJ's view that the point system was not pretext. Third, testimony indicated that several interviewers found that the Complainant had not interviewed well for the position.

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Summary :

[Nuclear and Environmental Digest XI C 1]
SUMMARY DECISION; ERROR TO GRANT WHERE THERE WAS A FACTUAL DISPUTE REGARDING WHETHER THE RESPONDENT FOLLOWED ITS DISCIPLINARY PROCEDURES

In King v. BP Products North America, Inc. , ARB No. 05-149, ALJ No. 2005-CAA-5 (ARB July 22, 2008), the ARB found that the ALJ had erroneously granted summary decision in favor of the Respondent where, viewing the evidence in the light most favorable to the non-moving party, there was a factual dispute regarding whether the Respondent followed its disciplinary procedures and thus whether its reason for terminating the Complainant was a pretext. One member of the Board dissented, stating that upon de novo review of the case he would have granted summary judgment to the Respondent on an insubstantial claim. Specifically, the dissenter would have found that the Complainant's response to the motion for summary judgment, which was based on the proffer of a legitimate non-discriminatory reason for the firing (causing a preventable accident), failed to demonstrate a genuine issue of material fact over why the Respondent fired him. What was material was not whether the Respondent followed its disciplinary procedures, but whether it fired the Complainant because of an alleged complaint to EPA and not because he caused a preventable accident.

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Summary :

CONTRIBUTING FACTOR; ONCE COMPLAINANT ESTABLISHES THAT PROTECTED ACTIVITY WAS A CONTRIBUTING FACTOR IN ADVERSE ACTION, RESPONDENT'S BURDEN IS TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT IT WOULD HAVE TAKEN THE ADVERSE ACTION IN THE ABSENCE OF THE PROTECTED ACTIVITY

In Patino v. Birken Manufacturing Co. , ARB No. 06-125, 2005-AIR-23 (ARB July 7, 2008), once the Complainant established by a preponderance of the evidence that his protected activities were a contributing factor in his firing, the ALJ imposed the wrong analysis when she stated that the Respondent could rebut by producing evidence of a legitimate, non-discriminatory reason for the firing. Rather, the Respondent's burden was to prove by clear and convincing evidence that it would have fired the Complainant in the absence of his protected activity. The ARB remanded for the ALJ to apply the correct legal standard.

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