USDOL/OALJ Reporter: ARB Decision Caselist -- July 2009

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Summary :

[Nuclear & Environmental Whistleblower Digest III B 2 a]
TIMELINESS OF COMPLAINT; PAY-SETTING DECISION AS DISCRETE ACT THAT BEGINS LIMITATIONS PERIOD; CONTINUING ISSUANCE OF PAYCHECKS AT LOWER RATE

ARB CASELAW IS CONTROLLING RATHER THAN SUPREME COURT'S LEDBETTER DECISION OR THE LILLY LEDBETTER FAIR PAY ACT OF 2009

In Cante v. New York City Dept. of Education , ARB No. 08-012, ALJ No. 2007-CAA-4 (ARB July 31, 2009), the Complainant alleged that he was demoted in violation of the whistleblower provisions of several environmental statutes in retaliation for complaints about asbestos removal. Each of the statutes had a 30 day limitations period. The complaint was filed more than 30 days after the Complainant had notice of the demotion decision and more than 30 days after the actual demotion. The Complainant argued, however, that since he received paychecks within 30 days before he filed his whistleblower complaint with OSHA, and the paychecks were issued with discriminatory animus, they were separate actionable events, and thus his complaint was timely. Citing ARB authority, the ARB found as a matter of law that the lower paychecks received less than 30 days before the filing of the complaint were not separate discrete discriminatory acts that triggered a new limitations period.

While the case was before the ALJ, much of the argument centered on the applicability of Supreme Court decisions in Ledbetter v. Goodyear , 550 U.S. 618 (2007) and Bazemore v. Friday , 478 U.S. 385 (1986). The ALJ concluded that Ledbetter in which the Court held that

a pay-setting decision is a discrete act which begins the charging period and the receipt of a neutral paycheck is not an unlawful practice which breathes life into prior, uncharged discrimination -- was controlling. The ARB, however, found that Ledbetter was not specifically controling, and stated that "[w]e apply Ledbetter only to the extent that it is consistent with our precedent that the limitations period begins to run when the complainant has final, definitive, and unequivocal knowledge of a discrete adverse act rather than when the adverse consequences are felt, e.g., reduced pay."

Finally, the ARB found that Lilly Ledbetter Fair Pay Act of 2009, in which Congress abrogated the Ledbetter holding, did not affect the disposition of the matter because that Act applies only to claims brought under Title VII of the Civil Rights Act of 1964, Age Discrimination in Employment Act of 1967, Americans with Disabilities Act of 1990, and the Rehabilitation Act of 1973, and not to the environmental statutes under which the instant complaint was brought.

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Summary :

ARB AUTHORITY TO RECONSIDER DBA PREVAILING WAGE DETERMINATION PRIOR TO FINAL ORDER BY WAGE AND HOUR ADMINISTRATOR BASED ON EXTRAORDINARY CIRCUMSTANCES

In Amprite Electric Co., Inc. , ARB No. 09-075 (ARB July 30, 2009), the ARB held that assuming arguendo that pursuant to 29 C.F.R. § 7.1(e) under extraordinary circumstances the ARB could hear de novo a petition for reconsideration of a prevailing wage determination under the Davis-Bacon Act the Petitioners had failed to establish such circumstances. The first alleged extraordinary circumstance was the Administrator's failure to comply with 29 C.F.R. § 1.8, the regulation establishing time limitations for responding to requests for reconsideration. The ARB found that the regulation did not, in fact, require the Administrator to issue his decision within 30 days, but rather requires him to either issue the decision or inform the requestor that more time is necessary. Although the Administrator was tardy in informing the Petitioners that more time was necessary, the Petitioners had not demonstrated any resulting harm, especially given that the Administrator had informed the ARB that he intended to complete his review by the end of July and to inform the Petitioners of his decision shortly thereafter.

The second allegedly extraordinary circumstance was a concern that stimulus funding will be wasted if it is used to fund DBA contracts under which wages are not properly paid. The ARB found that such alleged possibility constituted "a circumstance that would permit the Board to co-opt the Administrator's responsibility to make a final decision on reconsideration in this case, especially given his intention to complete his reconsideration by the end of July."

In sum, the ARB declined to " depart from its well established precedent that it will not consider a petition for review under the DBA in the absence of a final order on reconsideration by the Administrator."

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Summary :

PROTECTED ACTIVITY; MUST RAISE SOX VIOLATION DEFINITIVELY AND SPECIFICALLY

In Godfrey v. Union Pacific Railroad Co. , ARB No. 08-088, ALJ No. 2008-SOX-5 (ARB July 30, 2009), the ARB affirmed the ALJ's order granting summary decision in favor of the Respondent based on the Complainant's failure to establish a genuine issue of material fact that he engaged in SOX-protected activity prior to his discharge. On appeal, the ARB identified from the Complainant's filings three potential instances of protected activity. First, the ARB found that hotline calls made by the Complainant's wife alleging discrimination and sexual harassment did not definitively and specifically relate to the matters protected under SOX (and the Complainant admitted as much). Second, the ARB found that the Complainant's claim that he had raised an issue about credit card abuse (parceling of purchases to avoid a company rule on a written contract for purchases of more than $5,000 with a particular vendor) failed to establish protected activity because of lack of evidence that the Complainant had linked his complaint at the time to defrauding of shareholders, and because "speculation or a mere possibility that shareholders would be defrauded because Union Pacific employees parceled purchases does not satisfy the reasonable belief requirement" of SOX protected activity. Finally, the ARB found that the Complainant's claim on appeal that he had reported financial "kickbacks" was not supported by the record, and was waived on appeal because it had not been argued before the ALJ.

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Summary :

UNREBUTTED TESTIMONY OF INVESTIGATOR SUPPORTED BY CERTIFIED PAYROLL RECORDS IS SUFFICIENT TO CARRY DOL'S BURDEN OF PROOF OF ESTABLISHING MISCLASSIFICATION OF WORKERS UNDER THE DBA

FAILURE OF EMPLOYER TO DOCUMENT WORK DONE IN MORE THAN ONE CLASSIFICATION RESULTS IN ALL HOURS BEING COMPENSATED AT THE HIGHER RATE

In Palisades Urban Renewal Enterprises, LLP , ARB No. 07-124, ALJ No. 2006-DBA-1 (ARB July 30, 2009), the Wage and Hour Division had found after an on-site investigation that certain workers had been misclassified and underpaid as laborers, when they actually performed carpentry functions, for purposes of DBA wage requirements on an urban renewal construction contract. On appeal, the construction company argued that DOL had not met its burden of proof. But the ARB found that the investigator's testimony concerning his personal observations and interviews with employees, which the ALJ credited, and the certified payroll reports, which showed wage underpayments, were substantial evidence of the violations. The ARB found that the construction company's only witness admitted that he was not on the job every day and could not be certain of type of work the employees were doing. Thus, the ARB found that DOL had produced sufficient evidence showing the amount and extent of work performed by employees for which they were not properly compensated, and that the Respondents had failed to produce evidence to rebut the inferences the ALJ drew from the Department's evidence

The construction company also argued that, even assuming that laborers performed some carpentry work, "[a] few moments, hours, or even days of carpentry do not convert all of a laborer's work into carpentry." The ARB, however, found that the law was clear: "while it is permissible under the contract labor requirements for employees to work in more than one classification, the contractor then has the added responsibility to make certain that it properly documents and pays the employee for the various types of work he performed and for the hours he performed it." USDOL/OALJ Reporter at 8 (citation omitted). The ARB therefore found that the construction company "must pay its employees the rate of the highest paid classification for all hours worked here, the carpenters' rate." Id .

ARGUMENTS FIRST RAISED IN REPLY BRIEF ARE WAIVED

Arguments raised for the first time in a reply brief on appeal are waived. Palisades Urban Renewal Enterprises, LLP , ARB No. 07-124, ALJ No. 2006-DBA-1 (ARB July 30, 2009).

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Summary :

BACK WAGES; EMPLOYER'S POTENTIAL LIABILITY IS FOR ENTIRE PERIOD OF EMPLOYMENT OF THE ALIEN, INCLUDING A PRIOR LCA

In Vojtisek-Lom v. Clean Air Technologies International, Inc. , ARB No. 07-097, ALJ No. 2006-LCA-9 (ARB July 30, 2009), the Respondent had engaged the Complainant (the H-1B worker) on two sequential LCAs. On appeal, the Respondent argued that because the Complainant had not filed a complaint within one year of the end of the first LCA, the ALJ erred in assessing back pay liability for periods covered by the first LCA. The ARB rejected this argument, agreeing with the ALJ's analysis that the LCA regulations make an employer liable for paying the required wage for the entire period of employment.

FAILURE TO OBJECT TO FINDING BY ADMINISTRATOR DOES NOT COMPEL WAIVER OF DE NOVO REVIEW BY THE ARB

In Vojtisek-Lom v. Clean Air Technologies International, Inc. , ARB No. 07-097, ALJ No. 2006-LCA-9 (ARB July 30, 2009), the Administrator argued that the Respondent waived its right to have the ARB review de novo the ALJ's back wage award for the same time period as the Administrator's earlier finding because the Respondent had not contested the Administrator's determination that it owed the back wages for that period. The ARB rejected this argument, finding no basis for not exercising its de novo review authority.

BACK WAGE LIABILITY IS FOR ACTUAL WAGE OR PREVAILING WAGE, WHICHEVER IS HIGHER

The ARB found meritless the Employer's argument in Vojtisek-Lom v. Clean Air Technologies International, Inc. , ARB No. 07-097, ALJ No. 2006-LCA-9 (ARB July 30, 2009), that the ALJ erred in basing a back wage calculation on the higher amount actually paid to the Alien rather than the prevailing wage listed on the LCA. The ARB cited 8 U.S.C.A. § 1182(n)(1) and 20 C.F.R. § 655.731(a) for the proposition that "[t]he enforceable wage obligation for an employer of an H-1B nonimmigrant is the 'actual wage' or the 'prevailing wage,' whichever is greater."

BACK PAY AWARD; NO REDUCTION FOR ALLEGED VIOLATION BY COMPLAINANT OF ROYALTY AGREEMENT

In Vojtisek-Lom v. Clean Air Technologies International, Inc. , ARB No. 07-097, ALJ No. 2006-LCA-9 (ARB July 30, 2009), the Respondent argued that after it terminated the Complainant (the H-1B worker), the Complainant had kept computer codes essential to operation of the product the Complainant had invented, and which the Respondent was attempting to manufacture, in contravention of a royalty agreement. The Respondent contended that because of this wrong-doing, the Complainant should not be allowed to profit in any manner from his actions and should be denied any back pay. The Respondent cited in this regard the after-acquired evidence rule from McKennon v. Nashville Banner Pub. Co. , 513 U. S. 352 (1995). Both the ALJ and the ARB rejected this contention. The ARB wrote: "While Clean Air may have other rights to pursue a cause of action in another forum, alleged wrong-doing by an H-1B nonimmigrant under a royalty agreement does not fall within DOL's jurisdiction."

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Summary :

ARB DECLINES TO REVIEW REFUSAL TO ISSUE FARM LABOR CONTRACTOR CERTIFICATE OF REGISTRATION

In Evergreen Forestry Services, Inc. , ARB No. 09-119, ALJ No. 2005-MSP-6 (ARB July 29, 2009), the ARB declined to issue a Notice of Intent to Modify or Vacate ALJ's Decision and Order affirming the Wage and Hour Administrator's refusal to issue a farm labor contractor certificate of registration and a farm labor contractor employee certificate of registration because of the Respondents' failure to comply with the requirements of the Migrant and Seasonal Agricultural Workers Protection Act. The Respondents had been investigated, found to have violated a number of provisions of the MSPA, and had consequently paid civil money penalties -- in particular in relation to a vehicle crash in which 14 migrant forestry workers were killed. The petition was both untimely and failed to raise any legally sound challenge to the ALJ's decision. Therefore, the ALJ's decision became the final order of the Secretary in the matter. See Evergreen Forestry Services, Inc. , 2005-MSP-00006 (ALJ June 25, 2009).

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Summary :

Approval of settlement agreement.

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Summary :

ARB found that susbtantial evidence supported the ALJ's decision finding that the Complainant had not demonstrated that he had engaged in protected activity or that the Respondent was aware of protected activity when it discharged the Complainant.

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Summary :

PROTECTED ACTIVITY; REQUIREMENT THAT COMPLAINANT REASONABLY BELIEVE IN EXISTENCE OF VIOLATION RELATING TO AIR CARRIER SAFETY

In order to be protected under the whistleblower provision of AIR21, the complainant must reasonably believe in the existence of a violation of a regulation, order, or standard relating to air carrier safety. Once an employee's concerns are addressed and resolved, it is no longer reasonable for the employee to continue claiming a safety violation. In Malmanger v. Air Evac EMS, Inc. , ARB No. 08-071, ALJ No. 2007-AIR-8 (ARB July 2, 2009), the Complainant alleged three instances of protected activity. The ARB, however, agreed with the ALJ that none of the instances were based on a "reasonable belief" that the Respondent had violated any provision of Federal law relating to air safety.

First, the Complainant had sent an e-mail to the Respondent's CEO and Board of Directors alleging that several years before, a friend of the CEO had taken a joyride in one the Respondent's helicopters and had returned the helicopter in an unairworthy condition, and that the CEO had caused pressure to be put on the Complainant - a regional mechanic - to keep his mouth shut about the incident. The "joyriding" incident had occurred years before, and the e-mail had been sent shortly before a scheduled evaluation of the Complainant. The Complainant anticipated that the evaluation process would be used to get rid of him. The ARB found that the e-mail was not protected activity because when the Complainant sent the e-mail, he knew that his concerns about the joyriding incident had been resolved. The Complainant himself had signed off on the safety of the helicopter before it was returned to service, and had never raised concerns relevant to this issue in the three years that elapsed before he sent his e-mail.

Second, the Complainant did not demonstrate that he reasonably believed that another mechanic had violated an air safety rule when the two disagreed about which maintenance manual was applicable to determine whether a tail rotor assembly was out of limits. The matter had been resolved because the Complainant had ignored the other mechanic's advice and changed the rotor assembly. Moreover, the Complainant did not pinpoint an air safety violation.

Third, the Complainant did not reasonably believe that a supervisor had violated an air safety rule when he allowed a base mechanic to keep a helicopter in service pending delivery of a new oil tank. By the time the Complainant complained to management, he knew that the oil tank had been replaced, and it was no longer reasonable for the Complainant to continue claiming a safety violation.

Finally, the Complainant argued that the ALJ improperly relied on the Complainant's motivation for the complaints (the ALJ finding that the complaints were made to forestall a probable adverse performance evaluation). The ARB agreed with the proposition that there is no requirement that a whistleblower's actions be motivated by safety concerns. Nonetheless, the ARB found that the ALJ's finding that the Complainant "was insincere [was] a finding that [the Complainant] did not actually believe that violations existed at the time he made his complaints."

ALJ'S FAILURE TO MAKE SPECIFIC CREDIBILITY DETERMINATIONS IS NOT, IN ITSELF, GROUNDS FOR FINDING ERROR WHERE THERE IS NO SHOWING OF HOW IT AFFECTED THE OUTCOME OF THE CASE

In Malmanger v. Air Evac EMS, Inc. , ARB No. 08-071, ALJ No. 2007-AIR-8 (ARB July 2, 2009), the Complainant argued on appeal that the ALJ erred in not making specific credibility determinations. The ARB rejected this argument because the Complainant had not explained how this factor affected the outcome of the case. The ARB wrote: "While it is preferable that the ALJ delineate the specific credibility determinations for each witness, an 'arguable deficiency in opinion-writing technique' does not require us to set aside an administrative finding if that deficiency had no bearing on the outcome." USDOL/OALJ Reporter at 10 (footnote omitted).

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