Administrative Review Board Decisions - July 2023

Administrative Review Board Decisions

The following case summaries were created by the Administrative Review Board staff.

Administrator, Wage and Hour Div., USDOL v. A&M Labor Management, Inc., ARB No. 2023-0025, ALJ Nos. 2022-MSP-00002, 2022-TAE-00004 (ARB July 31, 2023) (Decision and Order)

MSPA LEGAL DUTIES TO WORKERS; MSPA PER-WORKER VIOLATIONS; MSPA PER-WORKER PENALTIES

In Administrator, Wage and Hour Div., USDOL v. A&M Labor Management, Inc., ARB No. 2023-0025, ALJ Nos. 2022-MSP-00002, 2022-TAE-00004 (ARB July 31, 2023), the ARB vacated in part and modified in part the Chief ALJ's ruling.

On December 3, 2019, the DOL WHD issued a Notice of Determination, assessing Civil Money Penalties (CMPs) for MSPA violations against Respondent, a farm labor contractor (FLC). The Notice of Determination indicated that Respondent failed to obtain required workers' compensation insurance coverage for eight MSPA-covered workers who were in a bus accident on November 23, 2018.

On March 23, 2023, the Chief ALJ issued a D. & O. in which he found that Respondent violated the MSPA by failing to obtain either workers' compensation insurance or vehicle liability insurance covering the eight workers transported in the bus. However, the Chief ALJ determined that Respondent's failure to provide insurance coverage to eight workers on the bus only constituted a single MSPA violation, rather than eight separate violations for each of the workers on the bus. Therefore, the Chief ALJ reduced the CMPs from $20,040.00 to $2,505.00, finding that it was impermissible to assess "a separate penalty for each individual denied workers compensation coverage."

On appeal, the ARB vacated the Chief ALJ's ruling that Respondent committed a single violation of the MSPA and the ARB modified the Chief ALJ's assessment of CMPs. The ARB determined that (1) Bittner v. United States does not preclude per-worker violations and penalties under MSPA; (2) MSPA imposes a legal duty on contractors to obtain insurance coverage for each worker transported; (3) Respondent committed eight violations of MSPA for failure to provide insurance coverage for each of the eight workers transported; and (4) a CMP of $20,040.00 is appropriate, reflecting an award of $2,505.00 for each of the eight violations.

BITTNER V. UNITED STATES; BITTNER DOES NOT PRECLUDE PER-WORKER VIOLATIONS AND PENALTIES UNDER MSPA

The Chief ALJ found that Respondent's failure to provide insurance coverage to workers on the bus only amounted to a single violation and penalty, not multiple violations and separate penalties for each individual without insurance coverage. To support his decision, the Chief ALJ cited to Bittner v. United States, 143 S. Ct. 713 (2023), characterizing the decision as establishing that "when the legal duty imposed by a statute is violated regardless of the number of errors made, it is not appropriate to multiply the resulting penalty by the number of errors that were actually made."

 The ARB disagreed with the Chief ALJ's reliance on Bittner because the caseinvolves a different statutory scheme and limits its discussion to interpreting the legal duties and penalties under the Bank Secrecy Act. Bittner did not sweep so broadly as to preclude per-worker violations and penalties under the MSPA. Instead, Bittner illustrated that textual interpretation determines the legal duties from which violations and corresponding penalties flow. Therefore, the ARB turned to the language of the MSPA and its regulations for the outcome.

MSPA LEGAL DUTIES; MSPA IMPOSES A LEGAL DUTY ON FLCS TO PROVIDE EACH WORKER TRANSPORTED WITH APPROPRIATE INSURANCE COVERAGE

To understand what constitutes a "violation" of the MSPA and how to assess a penalty for "each violation" under 29 U.S.C. § 1853, the ARB reviewed the legal duties that parties violate to incur penalties.

Read collectively, both the statutory and regulatory text speak in terms of legal duties FLCs owe to each of their workers. The MSPA and its implementing regulations allow FLCs contractors to satisfy MSPA by either obtaining (1) vehicle liability insurance that covers injury to passengers, 29 U.S.C. § 1841(b), or (2) workers' compensation coverage for each such worker, 29 U.S.C. § 1841(c); 29 C.F.R. § 500.122.

When contractors opt to satisfy MSPA's requirements by obtaining passenger insurance through vehicle liability coverage, the regulation requires that coverage be no less than "$100,000 for each seat in the vehicle." 29 C.F.R. § 500.121(b) (emphasis added). Alternatively, MSPA provides that a farm labor contractor that employs "any" MSPA-covered worker may satisfy MSPA's insurance requirements if it "provides workers' compensation coverage for such worker." 29 U.S.C. § 1841(c) (emphasis added); see also 29 C.F.R. § 500.122(a).

The ARB found that, under either option of liability insurance or workers' compensation, an FLC cannot satisfy MSPA's requirements simply by obtaining an insurance policy. Rather, an FLC must ensure that insurance protects each individual MSPA-covered worker, whether by obtaining passenger insurance on a per-seat basis, or by obtaining workers' compensation coverage on a per-worker basis "for such worker." Because an FLC owes a legal duty to each of its workers, a contractor commits a separate violation of the regulations every time it fails to insure any such worker.

MSPA VIOLATIONS; RESPONDENT COMMITTED A SEPARATE VIOLATION OF MSPA FOR EACH OF THE EIGHT WORKERS WITHOUT INSURANCE COVERAGE

Respondent violated its legal duty to obtain insurance coverage for each worker prior to transporting them in Respondent's vehicle. To receive workers' compensation coverage, Respondent had to provide hiring documents to Impact Staff Leasing (ISL) before each employee began work for Respondent. At the time of the November 23, 2018 bus accident, Respondent had not submitted hiring documents to ISL for seven of Respondent's workers and the bus driver. In addition, Respondent declined vehicle liability insurance from Bruce Hendry Insurance. Due to Respondent's failure, the eight workers did not have insurance coverage and were denied workers' compensation coverage following the bus accident.

Accordingly, the ARB held that Respondent violated the MSPA and its implementing regulations by not providing insurance coverage for each worker, committing eight separate violations.

MSPA PENALTIES; THE ARB EXERCISED ITS AUTHORITY TO MODIFY THE CHIEF ALJ'S ASSESSMENT OF CMPS

Under 29 U.S.C. § 1853(a)(1), the Secretary may assess "a civil money penalty" for "each violation" of MSPA or any of its implementing regulations. To account for Respondent's eight violations of the MSPA, the ARB modified the Chief ALJ's penalty from $2,505.00 for one violation of the MSPA to a total CMP of $20,040.00, reflecting a penalty of $2,505.00 for each of the eight violations.

Dickerson v. Iteris, Inc., ARB No. 2023-0026, ALJ No. 2019-SOX-00009 (ARB July 28, 2023) (Order Denying Motion to Dismiss and Reestablishing Briefing Schedule)

MOTION TO DISMISS; EQUITABLE TOLLING

In Dickerson v. Iteris, Inc., ARB No. 2023-0026, ALJ No. 2019-SOX-00009 (ARB July 28, 2023), the ARB denied Respondent's Motion to Dismiss the Complainant's appeal of an ALJ's D. & O. Complainant filed a complaint under the Sarbanes-Oxley Act of 2002. On March 21, 2023, an ALJ issued a D. & O. denying the complaint. The D. & O. informed Complainant that, to appeal the D. & O., he was required to file a Petition for Review (Petition) that must be either postmarked or received by the ARB within fourteen (14) days of the date of the ALJ's decision. The Petition was therefore due on April 4, 2023.

The ARB received Complainant's Petition on April 6, 2023. On May 17, 2023, Respondent filed a Motion to Dismiss Complainant's Petition (Motion to Dismiss), arguing that, on April 4, 2023, Complainant instructed Federal Express, a private carrier, to deliver the Petition in two days; therefore, he knowingly ensured that the ARB would not receive the Petition by the April 4, 2023 deadline set forth in the D. & O.

The ARB denied the Motion to Dismiss. Noting that its filing deadline is not jurisdictional and is therefore subject to equitable tolling, the ARB held that Complainant had a valid reason for believing that the date he instructed Federal Express to deliver his Petition met the deadline described in the D. & O. At the hearing on his complaint, Complainant, appearing pro se, informed the ALJ that he was utilizing Federal Express to deliver documents. The ALJ provided Complainant with instructions indicating that the date upon which Federal Express completed a "pick up" of his brief satisfied the filing deadline.

The ARB stated that "[t]his is not a case where Complainant unreasonably delayed filing by months, weeks, or even days, or otherwise failed to act diligently to preserve his appeal rights. Instead, Complainant understandably, albeit erroneously, relied on his understanding that the 'postmark' rule applied to Federal Express, in part based on an exchange with the ALJ regarding same. In the unique circumstances of this case, we conclude that equitable tolling is appropriate."

Administrator, Wage and Hour Div., USDOL v. Butler Amusements, Inc., ARB No. 2021-0007, ALJ No. 2018-TNE-00019 (ARB July 28, 2023) (Decision and Order)

TIMELINESS; CASE WAS NOT TIME BARRED; THE DETERMINATION LETTER WAS TIMELY ISSUED; THE FOUR-YEAR LIMITATIONS PERIOD IN 28 U.S.C. 1658(A) DOES NOT APPLY TO ADMINISTRATIVE ACTIONS; STATUTES OF LIMITATIONS SHOULD NOT BE BORROWED FROM OTHER STATUTES IN SUITS BROUGHT BY THE GOVERNMENT

In Administrator, Wage and Hour Div., USDOL v. Butler Amusements, Inc., ARB No. 2021-0007, ALJ No. 2018-TNE-00019 (ARB July 28, 2023), the ARB affirmed the ALJ's D. & O. Respondent is a traveling amusement carnival that requested a prevailing wage determination for the job opportunity "Amusement and Recreation Attendants" (ARAs) for 246 H-2B workers in October of 2012. For ARA positions, O*NET identified the core tasks as: selling tickets; collecting fees; selling refreshments; recording details of attendance, sales, receipts, reservations, or repairs; providing information about facilities; directing patrons, monitoring safety; cleaning rides; and staying informed of safety measures.

Respondent's agent completed and submitted ETA Forms 9141 and 9142B on its behalf. Respondent's ETA Form 9142B, filed in December of 2012, represented a temporary need for 246 full-time seasonal ARAs for its 2013 season. Respondent described the position's "Job duties" as "[p]erform [a] variety of attending duties at amusement facility (traveling carnival). Set-up, tear-down, operate amusement rides, food concessions and/or games." Respondent indicated that H-2B workers in this position would not supervise any other employees. Respondent submitted an Addendum to ETA Form 9142B, listing 71 worksites and stating it "makes available mobile housing valued at $125.00 per week," and "transportation from venue to venue, and scheduled transportation to laundry, shopping valued at $25.00 per week."

In Section I, Declaration of Employer and Attorney/Agent, Respondent checked "Yes" confirming it had read and agreed to all applicable terms, assurances, and obligations in Appendix B.1 of ETA Form 9142. Respondent's agent signed Appendix B.1 Section A, and its former CEO signed Appendix B.1 Section B. By signing the Declaration (Attestation #13), the CEO certified that the job opportunity was a full-time temporary position and that "[t]he dates of temporary need, reason(s) for temporary need, and number of worker positions being requested for certification has been truly and accurately stated on the application."

On December 14, 2012, ETA certified Respondent's application for temporary labor certification of 246 H-2B workers as ARAs who arrived in early February 2013. In 2013, WHD began an investigation and visited Respondent's worksite in California. In November 2013, WHD found that nine H-2B workers were employed outside the approved job duties of ARA as drivers (five H-2B workers), maintenance shop workers (two H-2B workers), and first-line supervisors (two H-2B workers), all of which have different SOC codes and prevailing wage determinations. Respondent paid the nine workers more than the ARA prevailing wage, but less than the prevailing wage for the jobs they performed.

On February 6, 2018, the Administrator issued a Determination Letter finding that Respondent substantially failed to comply with Attestation #13 which requires the employer to accurately state the dates of temporary need, reason for temporary need, and number of workers for temporary need. Stated another way, Respondent failed to comply with the requirement to provide proper job classification information on Form 9142B and DHS Form I-129. The Administrator based this finding on the substantive provisions of the 2008 H-2B regulations and the procedural provisions of the 2015 H-2B regulations and determined that Respondent violated Attestation #13 and 20 C.F.R. § 655.22(n) (2009). The Administrator assessed back wages totaling $24,987.20, and $10,000 in civil monetary penalties (CMP). Respondent contested the Administrator's findings and requested administrative review with the OALJ.

Before the ALJ, Respondent filed a Motion for Summary Judgment arguing that the action was time-barred by a number of different statutes of limitation. The ALJ issued an Order Denying Summary Judgment finding that the five-year statute of limitations in 28 U.S.C. § 2462 was applicable to this case, and that the Administrator had timely filed its Determination Letter within the five-year limitations period. The ALJ's May 2, 2019 Order amended the unpaid wages to $26,955.40 due to an inadvertent omission of one of the employees entitled to back wages.

The ALJ issued a Decision and Order in September 2020, finding that Respondent substantially failed to comply with the H-2B program by employing nine H-2B workers outside the job duties of ARAs; that the Administrator's method of calculating back wages through reconstruction was appropriate, but in recalculating the back wages owed, the ALJ lowered them from $26,955.40 to $26,786.95; that Respondent was not entitled to certain credits; and that the Administrator's assessment of a $10,000 CMP was reasonable.

In affirming the ALJ, the ARB found that the current case was not time barred as the Administrator timely issued the Determination Letter. The Administrator issued the letter on February 6, 2018, covering the period from February 1, 2013, through April 24, 2013. The ARB found that the claim did not begin to accrue until February 2013, and Respondent substantially failed to comply repeatedly throughout the period that WHD investigated through April 2013. Applying a five-year limitations period, the ARB affirmed the ALJ's finding that the Determination Letter was timely because it was issued before April 24, 2018. The ARB rejected Respondent's argument that the ALJ incorrectly determined that the statute of limitations did not start on February 1, 2013, as that was the date of Respondent's single discrete violation when the workers arrived (the "moment of employment") and began working, and that its violation was not continuing or repeating throughout their employment. The ARB found that that each significant deviation from the terms and conditions of the H-2B petition and accompanying labor certification is the violation itself, and thus began a new statute of limitations.

The ARB rejected Respondent's argument that the Administrator was required to charge the violation as a willful representation, rather than a substantial failure to comply, because the willful representation would have occurred when it filed its ETA Form 9142B in 2012, outside of the limitations period. The ARB found that an employer may willfully misrepresent facts on its ETA Form 9142B and be charged with willful misrepresentation, or an employer may substantially fail to comply with the statements it made on its ETA Form 9142B regarding its temporary need for H-2B workers and be charged with a substantial failure to comply. The ARB found that Respondent had not substantially failed to comply with the requirement in 20 C.F.R. § 655.22(n) until it actually acted with reckless disregard of the H-2B program requirements by employing nine H-2B workers in job classifications other than ARA.

The ARB rejected Respondent's argument that the statute of limitations should be governed by the four-year limitations period set forth in 28 U.S.C. § 1658(a), which governs civil actions arising under an Act of Congress enacted after 1990. The ARB noted that the text, context, purpose, and history of Section 1658(a) made clear that it governs court actions and not administrative enforcement actions. The ARB also rejected Respondent's argument that the ALJ erred by failing to "borrow" a statute of limitations from either the Fair Labor Standards Act or the H-2A program. The ARB found that the borrowing principles relied upon by Respondent applied to private actions brought under a federal statute that does not itself specify a statute of limitations, unlike the current case where the enforcement action was brought by the government itself.

VIOLATION OF THE INA AND H-2B REGULATIONS; RESPONDENT VIOLATED 20 C.F.R. § 655.22 BY EMPLOYING H-2B WORKERS OUTSIDE THE JOB CLASSIFICATION LISTED ON ITS APPLICATION FOR TEMPORARY LABOR CERTIFICATION; SUBSTANTIAL FAILURE TO COMPLY; RECKLESS DISREGARD WITH 2008 H-2B REGULATIONS; DID NOT ACT REASONABLY OR WITH A GOOD FAITH BELIEF

In affirming the ALJ, the ARB found Respondent substantially failed to comply with the 2008 H-2B regulations by employing nine H-2B workers as ARAs who did not perform ARA job duties. The ARB noted that Section 655.22(n) requires the employer to attest that it truly and accurately stated the number of workers needed, the dates of need, and the reasons underlying the temporary need in its labor certification request. On ETA Form 9142B, Respondent represented that it had a temporary need for 246 full-time season ARAs starting on February 1, 2013, and ending on October 31, 2013. When Respondent's former CEO signed the Employer's Declaration in Appendix B.1 Section B on ETA Form 9142, he certified that the "job opportunity was a full-time temporary position and that 'the dates of temporary need, reason(s) for temporary need, and number of worker positions being requested for certification has been truly and accurately stated on the application[.]'" The ARB agreed with the ALJ that because Respondent employed nine H-2B workers as drivers, shop workers, and supervisors, it substantially failed to meet the conditions of the labor certification and violated Section 655.22(n).

The ARB rejected Respondent's argument that the ALJ erred in finding it violated Section 655.22(n) because the statute is violated when there is a misrepresentation on the application, and, thus, the Administrator was required to charge this case as willful misrepresentation of material fact instead of substantial failure to comply. The ARB found that the Administrator may charge an employer with a willful misrepresentation or a substantial failure to comply with the conditions attested to on ETA Form 9142B, and in this case chose to charge Respondent with the latter.

The ARB affirmed the ALJ's finding that Respondent failed to comply with the 2008 H-2B regulations because it recklessly disregarded whether it was in compliance with the INA and H-2B program requirements. The ARB found that several sections of the 2008 H-2B regulations would have given notice of Respondent's obligations, including the clear directive that employers must truly and accurately state on its application the dates of temporary need, reason for temporary need, and number of positions being requested for labor certification. The ARB noted that the 2008 H-2B regulations provided context and purpose of the advertising requirements such that it should have given Respondent notice of the level of specificity required for the job description for requesting a job code during the application process, and also noted the regulations state that the job description in the advertisement and the temporary employment certification application have to be similar because employers cannot place "less favorable" job requirements on U.S. workers. The ARB concluded that Respondent should have known it was supposed to employ the number of ARA workers it had represented on its application and found unconvincing Respondent's argument that it did the best it could in the absence of clear directive and guidance.

The ARB rejected Respondent's argument that the H-2B workers performed a variety of job duties but that none of them were assigned outside of the job code, and it was being efficient by concentrating approved duties in a small number of H-2B workers. The ARB noted that Respondent did not include in its job description that workers would need a commercial's driver's license, that they would drive a semi-truck to transport rides, that they would work in a repair shop, or that they would supervise other employees. The ARB agreed with the ALJ that Respondent should have known it was required to describe the job duties with enough specificity to inform workers of the labor to be performed, and that Sections 655.20 and 655.34(b) also provided notice that a strategy of concentrating duties to promote efficiency would violate the 2008 H-2B regulations. The ARB also found that the instructions accompanying ETA Forms 9141, 9142B, and the DHS I-129 informed Respondent of its obligations and agreed with the ALJ that Respondent ignored these instructions.

The ARB found that Respondent should have submitted separate applications if it wished to fill positions that included supervisory roles, driving, and shop work, but instead it exerted minimal effort to comply with the INA and 2008 H-2B regulations. The ARB rejected Respondent's argument that the "incidental-duty rule" should be borrowed from H-2A regulations because it would undermine and ignore the purpose of the H-2B program to protect U.S. workers by ensuring there was no qualified U.S. workers available for the positions. The ARB found that if the regulations did not require H-2B workers to be only employed in the job code requested, the certification process would be rendered meaningless to allow workers to select a job code and receive a prevailing wage determination, advertise the job to U.S. workers, and then hire and employ H-2B workers to perform a different job after certifying no U.S. workers wanted the position. The ARB concluded that Respondent demonstrated reckless disregard for whether its actions violated the statute and regulations by placing nine H-2B employees outside of ARA positions.

The ARB rejected Respondent's argument that it did not willfully violate the regulations because it relied on an experienced agent when filing out Form 9142B. The ARB noted that the Department's proposed rulemaking confirmed that in the H-2B program an agent simply represents an employer and the employer is ultimately responsible for its obligations under the program. The ARB found that the ALJ did not impose strict liability on Respondent by finding that it did not reasonably rely on counsel but simply concluded that it was Respondent's responsibility to ensure its application was correct.

REMEDY; BACK WAGES OWED; NOT ELIGIBLE FOR CREDITS; CMPS

The ARB affirmed the ALJ's recalculation of the Administrator's back wages determination from $26,955.40 to $26,786. In his recalculation, the ALJ relied on one of Respondent's exhibits, finding it was reasonably reliable regarding the location of the workers. The ARB affirmed the ALJ's recalculation of waged based on this document and his use of the mean H-2B wage for each worker as best determined from the locations available in the exhibit. The ARB rejected Respondent's argument that ALJ erred as a matter of law by awarding back wages because they were not available for violations of Section 655.22(n) under the 2008 regulations. The ARB found that the first clause of Section 655.65(i) provides a broad grant of authority to the Administrator to impose remedies as the Administrator determines to be appropriate, and the ALJ properly concluded that back wages were an appropriate remedy because the H-2B workers were not paid the prevailing wages that they should have been paid for the work they performed.

The ARB rejected Respondent's argument that the ALJ erred as a matter of law by disregarding its pay record countersigned by the H-2B workers and thus imposed a "de facto timekeeping duty with strict liability." The ARB found that the ALJ did not impose such a duty and both the record and the ALJ's Decision reflects that the ALJ carefully reviewed the submitted pay records and determined they were unreliable (some were incomplete, some were missing, and some timesheets conflicted with others) and that the pay slips were not contemporaneously recorded timecards.

The ARB affirmed the ALJ's determination that Respondent was not entitled to take any offsets for wages due. The ARB rejected Respondent's argument that it was entitled to credits for providing housing, local transportation, relocation expenses, taxes, and reimbursement for a prepayment plan because the H-2B workers did not reach 40 hours a week during the period of investigation. The ARB affirmed the ALJ's decision not to give any weight to Respondent's joint statement signed by employees in 2019 who worked for it in 2013 that it received "valuable benefits" or to statements made in its job offer and temporary employment certification application wherein it stated it would make both housing and transportation available because the statements were ambiguous.

The ARB affirmed the ALJ's determination to uphold the Administrator's assessment of a $10,000 CMP for Respondent's substantial failure to pay H-2B workers for the work they actually performed. The ARB noted that the ALJ independently weighed the discretionary factors used to assess CMPs and concluded that the Administrator's assessment was reasonable. The ARB agreed with the ALJ's balancing of the seven factors, noting that two factors neither weighed for nor against Respondent. The ARB concluded that the discretionary factors favored imposing the maximum CMP of $10,000 in this case.

Hendrix v. CSX Transportation, Inc., ARB No. 2023-0033, ALJ No. 2020-FRS-00076 (ARB July 13, 2023) (Decision and Order Approving Settlement, Denying Motion to Seal, and Dismissing Case with Prejudice)

VOLUNTARY DISMISSAL; APPROVAL OF SETTLEMENT

In Hendrix v. CSX Transportation, Inc.,ARB No. 2023-0033, ALJ No. 2020-FRS-00076 (ARB July 13, 2023), the parties filed a Joint Motion to Approve Settlement and Dismiss Action with Prejudice, stating that the parties had settled Complainant's FRSA claim and agreed to dismiss the appeal with prejudice pursuant to the terms of a settlement agreement. The ARB approved the parties' settlement agreement as fair, adequate, and reasonable, and not in contravention of the public interest. Accordingly, the ARB dismissed the appeal.

Kossen v. Empire Airlines, ARB No. 2022-0004, ALJ No. 2019-AIR-00022 (ARB July 19, 2023) (Order Denying Reconsideration)

ORDER DENYING MOTION FOR RECONSIDERATION; COMPLAINANT'S MOTION FOR RECONSIDERATION FAILED TO DEMONSTRATE SUFFICIENT GROUNDS FOR THE ARB TO RECONSIDER ITS DECISION

In Kossen v. Empire Airlines, ARB No. 2022-0004, ALJ No. 2019-AIR-00022 (ARB July 19, 2023), the ARB denied Complainant's request for reconsideration.

The ARB will reconsider a decision and order only under limited circumstances. These circumstances include whether the movant has demonstrated: (i) material differences in fact or law from those presented to the ARB of which the moving party could not have known through reasonable diligence, (ii) new material facts that occurred after the ARB's decision, (iii) a change in the law after the ARB's decision, or (iv) failure to consider material facts presented to the ARB before its decision.

Respondent raised several arguments for reconsideration, but none of the arguments satisfied any of the requirements for reconsideration. Furthermore, substantial evidence supported the ALJ's conclusion that Respondent discharged Complainant in response to his lack of competency and ability as a pilot in command as well as his lapses in judgment, including his unprofessional attitude and continued failure to accept responsibility for his actions. Based on the substantial evidence identified in the record and in the D. & O., Respondent had serious concerns about allowing Complainant to continue working as a pilot.

Accordingly, the ARB found that nothing in the Motion for Reconsideration indicated that the ARB should reverse the ALJ's findings.