USDOL/OALJ Reporter: ARB Decision Caselist - July 2015

POORLY DEVELOPED RECORD REQUIRES REMAND TO ADMINISTRATOR AND POSSIBLE REFERRAL TO ALJ FOR DISPUTED RELEVANT FACTUAL ISSUES UNDERLYING ANY LOCAL AREA PRACTICE SURVEY WHICH, WITHIN THE ADMINISTRATOR'S DISCRETION, MAY NEED TO BE DONE

DETERMINATION OF PROPER CLASSIFICATION OF WORK REQUIRES CONSIDERATION OF PERFORMANCE OF LEAD-BASED PAINT ABATEMENT WORK ON A REGULAR BASIS BY CLASSIFICATION OR WORKERS IN AREA, NOT ON CERTIFICATION OR TRAINING OF PETITIONER'S WORKERS ON THEIR PERFORMANCE OF SUCH WORK ON AN INCIDENTAL BASIS

In Barco Enterprises, Inc. , ARB No. 13-041 (ARB July 31, 2015), Barco sought review of Administrator's decision denying its request for approval to pay its lead paint abatement employees as Common/General laborers, a non-union prevailing rate, rather than as either the "Painter" or "Skilled Laborer" classification based on union-rates. Administrator treated the request as a conformance request for a new classification. ARB finding the record and the treatment of Petitioner's request unclear, remanded the case to the Administrator for a determination whether Petitioner's request should be treated as a "conformance" request or a request seeking clarification of which of the existing classifications is applicable. ARB orders the Administrator, pursuant to 29 C.F.R. § 5.11 (b) and (c), to refer the case to the ALJ if it finds that local area practice survey ("LAPS") needs to be performed in order to consider and resolve relevant factual issues involving the underlying. ARB also finds that if LAPS needs to be performed, it must be done in accordance with Wage and Hour's Field Operations Handbook. ARB also found that failure by WHD to conduct a survey including non-union based Common/General Laborer classifications erroneously relied on the training or certification of petitioner's workers rather than whether workers employed as common/general laborers in the D.C. area perform lead paint abatement work, and if so, under what of the three relevant classifications. ARB found that reliance on the advice of the skilled laborers' union that lead paint abatement is not within the scope of the work of the union's skilled laborers is insufficient as an evidentiary basis; the issue of performance of lead abatement work requires that work be performed on a regular rather than incidental basis.

Judge Corchado issued a concurring opinion explaining that the record for the Administrator's decision as to the prevailing practice for treating lead abatement was insufficient; both local union and non-union contractors should have been contacted to determine the local area practice; and, while it need not be reached in the instant case, he questioned the intent and scope of the addition of new classification under 29 C.F.R. § 5.5(a)(1)(A)(i).

SUBSTANTIAL EVIDENCE FOUND IN ALJ'S DETERMINATIONS INVOLVING CONTRIBUTING FACTOR AND FAILURE TO MEET AFFIRMATIVE DEFENSE STANDARD

INCONSISTENT OPERATIONS MANUAL AND INCONSISTENT PRE-EXISTING PERFORMANCE APPRAISAL REFLECTS EMPLOYER PRETEXT

SERIOUSNESS OF COLLISION INCIDENT DID NOT OVERCOME LACK OF CLEAR AND CONVINCING EVIDENCE THAT COMPLAINANT WOULD HAVE BEEN TERMINATED FROM EMPLOYMENT ABSENT PROTECTED ACTIVITY

In Dady v. Harley Marine Services, Inc. , ARB Nos. 13-076, -077, ALJ No. 2012-SPA-2 (ARB July 31, 2015), both parties appealed from the ALJ's decision that the Respondent terminated the Complainant's employment in violation of Seaman's Protection Act ("SPA"). The ALJ ordered reinstatement and other relief, including punitive damages. The ARB summarily affirmed the ALJ's decision, highlighting some of its particular reasons. The ARB approved the ALJ's determination of the meaning of the parties' stipulation to the underlying conduct constituting protected activity. The ARB found that such conduct "overlapped" with the public reports Complainant had made in a newspaper duck boat article, conduct fitting within the categories of protected activity in the SPA, i.e., public disclosure of maritime law violations and safety issues. The ARB found that substantial evidence supported the ALJ's finding of a causal link between the Complainant's protected activity and termination, including a conversation with the employer constituting indirect evident of causal connection. The ARB also noted the ambiguity of facts involving the Respondent's explanation of its termination of the Complainant resulted in the ALJ's conclusion of pretext and inference of the Respondent's knowledge. The Respondent's affirmative defense relied on an operations manual that was "inconsistent" regarding the responsibilities of a captain and of the person in charge at the time of an allision (i.e., collision). The ARB found that substantial evidence supported the ALJ's determinations that another discharged employee was not similarly situated, and that the Complainant's positive performance appraisals cast doubt on the Respondent's assertions of Complainant's communication problems. The ARB stated in conclusion:

    We recognize the seriousness of the events that occurred here. First, there was a serious allision that punctured the hull of the barge, followed by the crew's failure to report the allision or, supposedly, even to mention it to Dady, which all lead up to the near sinking of the barge in New York harbor when the barge was full of oil. But equally significant is the lack of clear and convincing evidence that Harley Marine would have terminated Dady's employment absent the contribution of the protected activity. We do not consider whether some discipline was inevitable because that issue was not raised.

REINSTATEMENT IS REQUIRED TO BE ORDERED BY THE ALJ WHERE "APPROPRIATE" IN SPA WHISTLEBLOWER CASE

In Dady v. Harley Marine Services, Inc. , ARB Nos. 13-076, -077, ALJ No. 2012-SPA-2 (ARB July 31, 2015), the ARB rejected both parties' arguments that reinstatement was not an appropriate remedy. The ARB wrote:

The regulations provide that where the ALJ finds a SPA violation, as the ALJ in this case did, the ALJ "will" issue an order which will require reinstatement where "appropriate." 29 C.F.R. § 1986.109(d)(1). The ALJ's reinstatement order, which was issued in his decision dated June 25, 2013, was "effective immediately" upon Harley Marine's receipt of the decision, and remains a standing order that Harley Marine must follow. 29 C.F.R. § 1986.109(e). Accordingly, Harley Marine is required to make a bona fide offer of reinstatement to Dady to his "former position, with the same compensation, terms, conditions and privileges" of his employment. 29 C.F.R. § 1986.109(d)(1). As the ALJ properly determined, Dady is entitled to back pay until he is reinstated or he receives a bona fide offer of reinstatement. �

USDOL/OALJ Reporter at 6.

PUNITIVE DAMAGES OF $20,000 FOUND TO BE SUPPORTED BY THE RECORD

In Dady v. Harley Marine Services, Inc. , ARB Nos. 13-076, -077, ALJ No. 2012-SPA-2 (ARB July 31, 2015), the Respondent challenged the ALJ's award of $20,000 in punitive damages as unsupported by the facts of this case, and on cross-appeal, the Complainant argued that the ALJ erred in failing to impose the maximum punitive damages allowed under the SPA of $250,000. The ARB, found, however, that the ALJ had adequately addressed the relevant facts of this case, including the Respondent's conduct, and determined that $20,000 "is a sufficient amount in punitive damages to accomplish the aims of punishment and deterrence in this case." The ARB found that the ALJ's punitive damages award, was supported by the record and consistent with applicable law, the ARB citing in this respect Youngermann v. United Parcel Serv., Inc. , ARB No. 11-056, ALJ No. 2010-STA-47 (ARB Feb. 27, 2013).

AIR21 CAUSATION STANDARD AND BURDENS OF PROOF APPLY TO SEAMAN'S PROTECTION ACT WHISTLEBLOWER CASES

In Dady v. Harley Marine Services, Inc. , ARB Nos. 13-076, -077, ALJ No. 2012-SPA-2 (ARB July 31, 2015), the Respondent argued that the ALJ erred in finding that the AIR 21 causation standard and legal burdens of proof apply under the under the employee protection provisions of the Seaman's Protection Act, because the SPA requires that a seaman show discharge or other discrimination "because" of protected activity. See 46 U.S.C.A. § 2114(a)(1). The ARB rejected this argument, finding that the SPA provides that a complaint may be filed in the same manner as a STAA complaint under 49 U.S.C.A. § 31105(b), and that such complaint will be "subject to the procedures, requirements, and rights described in that section," 46 U.S.C.A. § 2114(b). The ARB found that the STAA in turn references AIR 21. The ARB stated that while the Respondent argued that "nowhere in the STAA are the AIR 21 burdens of proof �described,' that verb can be easily understood to include the AIR 21 causation standard expressly referenced in the STAA." The ARB stated that the Respondent was urging "a hypertechnical interpretation of statutory language that runs contrary to the remedial purposes of the Acts involved here."

Notification under 29 C.F.R. § 458.91(a) to the parties that, no exceptions having been filed, the ALJ's Recommended Decision and Order had become the final decision in the case.

[STAA Digest II J]
[STAA Digest IX C]
TIMELINESS OF FEE AND COSTS PETITION BEFORE THE ARB; FILING OF PETITION WITH ALJ RATHER THAN ARB TOLLED FILING PERIOD UNDER �WRONG FORUM� GROUND FOR EQUITABLE TOLLING OF NON-JURISDICTIONAL DEADLINE

In Maddin v. Transam Trucking, Inc. , ARB No. 13-031, ALJ No. 2010-STA-20 (ARB July 24, 2015), the ARB directed in its Final Decision and Order that any petition for fees and costs incurred before the Board be filed with the ARB within 30 days of the decision. The Complainant filed his petition with the ALJ rather than with the Board. The ARB exercised its discretion and accepted the petition as timely filed based on the �wrong forum� ground for equitable tolling of a non-jurisdictional deadline. The ARB noted that the Respondent had not claimed prejudice and that the Complainant had filed his petition with the ARB in a timely manner once the ALJ notified him that he needed to file the petition with the ARB.

CAUSATION; SUBSTANTIAL EVIDENCE SUPPPORTED ALJ�S FINDING OF LACK OF CAUSATION WHERE ADVERSE ACTIONS WERE CONSISTENT WITH COMPANY POLICY AND COMPLAINANT PRESENTED NO EVIDENCE TO SHOW THAT ASSESSMENT OF SAFETY POINT AND ATTENDANCE POINT WERE CAUSALLY RELATED TO PROTECTED ACTIVITY

In Graves v. MV Transportation, Inc. , ARB No. 14-045, ALJ No. 2013-NTS-2 (ARB July 23, 2015), the ARB found that substantial evidence supported the ALJ's finding that there was no causal link between Complainant's protected activities and the alleged adverse actions, i.e., assessment of a safety point, a �tailgating incident,� an interview notice following a customer complaint, the lack of medical leave for treatment due to a work-related injury, Respondent's treatment of the work-related assault, and the assessment of attendance penalty points. The ARB noted that the ALJ had specifically found that �it was the company's policy to check on the drivers, including following them on their routes, to interview employees regarding customer complaints, and to require employees to schedule work-related doctor appointments after work hours.� The ARB also noted that the ALJ found that the Complainant submitted no evidence that the assessment of a safety point following the minor traffic accident and the attendance point related to the early return from lunch were causally related to his protected activity.

CIVIL MONEY PENALTIES FOR REPEATED VIOLATIONS UNDER THE FAIR LABOR STANDARDS ACT: VIOLATIONS NEED NOT BE IDENTICAL NOR HAVE OCCURRED AT THE SAME FACILITY OF MULTI-ESTABLISHMENT EMPLOYERS

In Texas Roadhouse Management Corp. , ARB No. 14-037, ALJ No. 2013-FLS-9 (ARB July 21, 2015), the Wage and Hour Division conducted an investigation in late 2011 and early 2012, and found FLSA minimum wage and overtime violations at the Respondent's Hickory, North Carolina restaurant. In early 2012, WHD investigated the Respondent's Bangor, Maine restaurant, and found failure to pay for time spent on rest/smoke breaks. In May 29, 2013, the WHD assessed a civil money penalty against the Respondent for a repeat violation. The ALJ affirmed the CMP for repeated violations of the Fair Labor Standards Act, 29 U.S.C. §§ 206 and 207.

The ARB agreed with the ALJ "that neither the FLSA nor its implementing regulations require the previous and subsequent violation to be the 'same or similar,' as Respondent argues on appeal." USDOL/OALJ Reporter at 3-4. The ARB was not persuaded by the Respondent's contention that "repeatedly" under the FLSA has the same meaning as in the Occupational Safety and Health Act (OSHA), at 29 U.S.C.A. § 666(a), as interpreted by federal and administrative courts. The ARB cited the regulatory history of the FLSA regulation at 29 C.F.R. § 578 in which the WHD has rejected comments urging section 578.3(b) to be changed so that only identical minimum wage or overtime violations be considered a repeated violation. The ARB also agreed with the ALJ that even if the FLSA requires similar violations before CMPs may be imposed, the violations here were similar as they both involved improper payment for the hours worked.

The ARB also was unpersuaded by the Respondent's argument that the Hickory and Bangor violations were dissimilar "because the two restaurants operated under entirely different management teams separated geographically by 1,000 miles." USDOL/OALJ Reporter at 4. The ARB agreed with the ALJ's observation that "WHD addressed this exact issue when it adopted the FLSA regulations, rejecting the argument of several commentators that a repeated violation should not be charged 'to multi-establishment employers when the violations occurred at different establishments.' 57 Fed. Reg. 49,128 (Oct. 29, 1992)." Id .

One member of the ARB panel dissented, noting that the violations were virtually overlapping in time, and that the FLSA regulation plainly contemplates "successive" violations. This member would have remanded for clarification of this point, and urged that the WHD provide a warning with a first violation that "further violations of section 206 or 207 anywhere in the company, can be deemed a 'repeated' violation subjecting the company to civil monetary penalties." Id . at 5.

PROTECTED ACTIVITY; FILING OF EARLIER COMPLAINT IN GOOD FAITH

In Coates v. Grand Trunk Western Railroad Co. , ARB No. 14-019, ALJ No. 2013-FRS-3 (ARB July 17, 2015), the Respondent argued on appeal that the ALJ erred in finding that the Complainant engaged in protected activity when he had filed a prior FRSA complaint. The Respondent contended that the earlier complaint had not been filed in good faith. The ARB found, however, that substantial evidence supported the ALJ's finding that the earlier complaint had been filed in good faith and was protected activity. The ARB noted that it was undisputed that the Complainant left work to go to hospital with racing heart and was not permitted to return to work for about a month, and had consulted with union representative before filing a complaint. The ARB stated that this evidence, among other evidence provided sufficient substantial evidence to support the ALJ's conclusion that the Complainant's earlier complaint alleging that the Respondent retaliated against him for reporting a work-related injury was filed in good faith, even if the Complainant's allegations later proved to be incorrect.

EMPLOYER KNOWLEDGE OF PROTECTED ACTIVITY IS NOT A SEPARATE ELEMENT OF AN FRSA CLAIM, BUT RATHER IS PART OF THE CAUSATION ANALYSIS

In Coates v. Grand Trunk Western Railroad Co. , ARB No. 14-019, ALJ No. 2013-FRS-3 (ARB July 17, 2015), the ALJ had cited employer knowledge as an element of an FRSA claim (in addition to the three elements of protected activity, adverse action, and a causal link). On appeal, the ARB indicated that this was error. Rather, the ARB had "held that knowledge is not a separate element, but instead forms part of the causation analysis. See Bobreski v. J. Givoo Consultants, Inc. , ARB No. 09-057, ALJ No. 2008-ERA-003, slip op. at 13 (ARB June 29, 2011) ( Bobreski I ). See also Moon v. Transp. Drivers, Inc. , 836 F.2d 226, 229 (6th Cir. 1987) (citing three elements for a whistleblower claim under the Surface Transportation Assistance Act, 49 U.S.C.A. § 31105 (2011))."

CAUSATION; COMPLAINANT'S BURDEN IS TO PROVE CONTRIBUTING FACTOR, AND NOT MERELY TO RAISE AN INFERENCE; COMPLAINANT IS NOT REQUIRED TO PROVIDE PRETEXT

In Coates v. Grand Trunk Western Railroad Co. , ARB No. 14-019, ALJ No. 2013-FRS-3 (ARB July 17, 2015), the ALJ had stated that the Complainant's causation burden was to prove by a preponderance of the evidence that "the circumstances were sufficient to raise [an] inference" of causation. The ARB indicated that this was error, because the statute requires a complainant to prove as a fact and not simply to raise an inference, "that protected activity was a contributing factor in the adverse action." 29 C.F.R. § 1982.109(a). The ARB stated, however, that contributing factor is a low standard of causation. Moreover, under that standard, protected activity and non-retaliatory reasons can coexist, and a complainant is not required to prove the employer's proffered non-discriminatory reasons are pretext.