Administrative Review Board - August 2020

Administrator, Wage and Hour Div. v. Volt Management Corp., ARB No. 2018-0075, ALJ No. 2012-LCA-00044 (ARB Aug. 27, 2020) (Decision and Remand Order)

SCOPE OF ADMINISTRATOR’S INVESTIGATION INITIATED BASED UPON RECEIPT OF AGGRIEVED PARTY COMPLAINT; ARB RE-VISITS ITS PRECEDENT ON THE QUESTION AND FINDS COMMON GROUND BETWEEN ARB AND COURT RULINGS; ADMINISTRATOR’S INVESTIGATION MUST BE MUST BE CONDUCTED WITH REGARD TO THE AGGRIEVED PARTY COMPLAINT, BUT UNDER SOME CIRCUMSTANCES MAY EXTEND BEYOND THE AGGRIEVED COMPLAINANT OR HIS PARTICULAR GRIEVANCE; ARB DECLINES TO DEFINE EXACT CONTOURS

The parties agreed that the Administrator’s investigation was initiated based on the Complainant’s aggrieved party complaint pursuant to 8 U.S.C. § 1182(n)(2)(A). The Administrator sought records on Volt’s H-1B employees and LCAs for a two-year period. The Administrator ultimately determined that Volt failed to pay the Complainant and many other H-1B employees for non-productive time in violate of 20 C.F.R. § 655.731. As noted, the ALJ granted summary decision based on a determination that the scope of the Administrator’s investigation went too far.

The ARB described how the ARB and the courts had grappled with this issue in the past.

In Admin., Wage & Hour Div. v. Greater Missouri Med. Providers, Inc., ARB No. 2012-0015, ALJ No. 2008-LCA-00026 (ARB Jan. 29, 2014) , the ARB in a split decision, concluded that the Administrator had the power and authority to conduct investigations not constrained to the specific allegations in a single aggrieved party complaint, and under the facts of the case where the complainant’s allegations were detailed, the Administrator had reasonable cause to investigate related H-1B violations encountered in the course of the investigation. On appeal in Greater Missouri Med. Pro-Care Providers, Inc. v. Perez, 812 F.3d 1132 (8th Cir. 2015), the Eighth Circuit circumscribed the scope of an investigation in response to an aggrieved party complaint. Although it declined to set the exact contours of the Administrator’s authority to investigate, it found that an open-ended investigation without regard to the actual allegations of the aggrieved party complaint was not supported by the plain language of the INA.

The ARB next addressed the issue in Admin., Wage & Hour Div. v. Aleutian Capital Partners, LLC, ARB No. 2014-0082, ALJ No. 2014-LCA-00005 (ARB June 1, 2016), where the Administrator’s expansion of the investigation was on a much smaller scale to cover the complainant and the employer’s lone other H-1B worker. The ARB “rejected the Eighth Circuit’s interpretation of the INA, summarily affirmed its holding from Greater Missouri, and held that the Administrator’s expansion of the investigation was within the authority granted to her under the Act.” Slip op. at 9 (footnotes omitted); see also id. at 10-11, n. 53, explaining that the ARB exercised “non-acquiescence” in Greater Missouri outside the Eighth Circuit. The Southern District of New York affirmed the outcome in Aleutian Capital Partners, LLC v. Hugler, 16 Civ. 5149 (ER), 2017 WL 4358767 (S.D.N.Y. Sept. 28, 2017) (appeal pending in the Second Circuit). The district court, however, held that the Administrator’s investigatory powers are not unlimited, and must be “tethered” the allegations of the complaint.

For the instant case, the Administrator asked the ARB to recommit to its holdings in Greater Missouri and Aleutian, while Volt asked the ARB to adopt the holdings of the Eighth Circuit and the Southern District of New York.

The ARB returned to a review of the statutory and regulatory language, and determined that read in conjunction, the Secretary’s and Administrator’s investigation is bounded in its purpose, nature and scope—but that the Administrator is granted “significant discretion with respect to defining and conducting an investigation.” Id. at 13. The ARB stated that “[t]his discretion gives the Administrator the power and authority to go beyond the four corners of the complaint, as may be appropriate.” Id. The ARB also determined that the opinions of the courts in Greater Missouri and Aleutian did not bind the Administrator to the four corners of the complaint, and recognized latitude to investigate “as necessary and appropriate, so long as the investigation did not lose sight of the complaint or the finding of reasonable cause.” Id. (footnote omitted). The ARB concluded that the statutory scheme had been a compromise between using a foreign labor supply to compete in the global economy, and protection of the domestic labor market. The ARB stated:

The compromise statutory scheme may be undermined with too narrow of an application of the aggrieved party complaint investigation provision of the INA. The H-1B program is, after all, a voluntary program offered by the government, and employers participate in the program because of the benefit it provides. The Department of Labor has been given the power, and the responsibility, to ensure that the applicable laws and rules are followed by all the participants in the H-1B visa program. It is incomprehensible that Congress would delegate enforcement power to the Secretary in an elaborate, detailed statutory scheme without also giving the Secretary the means to exercise that delegated power and responsibility.

As the foregoing discussion reflects, while the Administrator’s investigation is prompted by and must be conducted with regard to a particular aggrieved party complaint, there is authority for and circumstances in which the investigation may extend beyond the aggrieved complainant or his particular grievance. But, just as the Eighth Circuit and the Southern District of New York did, we decline today to define the exact contours of an investigation in response to an aggrieved party complaint.

Id. at 14-15.

In the instant case, the ARB could not determine based on the record whether the investigation was authorized under the INA, and remanded to the ALJ for additional proceedings and factual development.

NON-ACQUIESCENCE; WHERE ARB HAD ISSUED A DECISION NOT ACQUIESCING TO COURT OF APPEALS DECISION OUTSIDE THAT CIRCUIT, THE ALJ WAS BOUND TO APPLY THE ARB PRECEDENT IN ANOTHER CIRCUIT EVEN THOUGH A DISTRICT COURT IN YET ANOTHER CIRCUIT HAD EXPRESSED DISAGREEMENT WITH THE ARB PRECEDENT

In Administrator, Wage and Hour Div. v. Volt Management Corp., ARB No. 2018-0075, ALJ No. 2012-LCA-00044 (ARB Aug. 27, 2020), the ALJ granted summary decision in favor of Respondent on the ground that the violations and penalties imposed by the Administrator in regard to all of the employer’s H-1B workers, and not just the aggrieved party complainant’s situation, were based on an investigation in excess of the Administrator’s power under the INA. In this regard, the ALJ had departed from ARB precedent because he concluded that it had been reversed or modified on appeal. The ARB disagreed with the ALJ’s conclusion. At ARB noted that although it had been reversed by the Eighth Circuit in Greater Missouri Med. Pro-Care Providers, Inc. v. Perez, 812 F.3d 1132 (8th Cir. 2015), it had issued a subsequent decision in Admin., Wage & Hour Div. v. Aleutian Capital Partners, LLC, ARB No. 2014-0082, ALJ No. 2014-LCA-00005 (ARB June 1, 2016), declining to acquiesce in the Eighth Circuit’s decision outside the Eighth Circuit. Although the Southern District of New York in Aleutian Capital Partners, LLC v. Hugler, 16 Civ. 5149 (ER), 2017 WL 4358767 (S.D.N.Y. Sept. 28, 2017), indicated disagreement with the ARB’s Aleutian decision, the instant case arose in the Ninth Circuit. The ARB thus stated that for purpose of the instant case, the ARB’s precedent remained valid and the ALJ was bound to follow it.

Despite noting that the ALJ should have applied the ARB’s precedent, in order to decide the instant appeal, the ARB reevaluated the law and clarified its opinion in a way that harmonized its ruling with the reasoning employed by the Eighth Circuit and the Southern District of New York.

Petitt v. Delta Airlines, ARB No. 2019-0087, ALJ No. 2018-AIR-00041 (ARB Aug. 26, 2020) (per curiam) (Decision and Order [denying interlocutory review])

INTERLOCUTORY REVIEW; ARB DENIES INTERLOCUTORY REVIEW OF ALJ’S ORDER DENYING RESPONDENT’S MOTION FOR A PROTECTIVE ORDER CONCERNING COMPLAINANT’S COUNSEL’S POSTING ON YOUTUBE OF VIDEO DEPOSITIONS OF RESPONDENT’S CEO AND ITS SENIOR VP OF FLIGHT OPERATIONS, WHERE THOSE DEPOSITIONS HAD BEEN ADMITTED INTO THE PUBLIC RECORD AT THE HEARING BEFORE THE ALJ; ARB NOTES THAT VIDEO HAS BECOME UBIQUITOUS

In Petitt v. Delta Airlines, Inc., ARB No. 2019-0087, ALJ No. 2018-AIR-00041 (ARB Aug. 26, 2020) (per curiam), Respondent sought interlocutory review by the ARB of the ALJ’s order denying Respondent’s motion for a protective order concerning Complainant’s counsel’s posting on YouTube of videotaped depositions of Respondent’s CEO and its Senior VP of Flight Operations.

Those depositions had been entered into evidence before the ALJ by stipulation of the parties because of the deponents’ lack of availability for the hearing. The ALJ had carefully pointed out that admission of the depositions into the record waived any privilege as to the contents of the transcripts, and noted that the depositions were admitted in lieu of live testimony for the convenience of Respondent. The YouTube posting of the depositions by Complainant’s counsel occurred after the conclusion of the hearing. Counsel’s law firm website had hyperlinks to the YouTube postings. Respondent’s counsel wrote to Complainant’s counsel requesting that the videos be taken off the Internet. Complainant’s counsel declined. Respondent then filed a request for a protective order with the ALJ. The ALJ denied the request, noting that the party’s confidentiality agreement specified that it would not carry forward if the depositions were admitted into the record. The ALJ also denied a motion for reconsideration and for certification of an interlocutory appeal. Respondent then petitioned the ARB directly for interlocutory review. The ARB reviewed the petition under the collateral order doctrine.

Respondent argued that the “collateral order doctrine was met because of the need for clear rules preventing abuse of video and other manipulable media. According to Respondent, the publication of the videos on the law firm’s website and on YouTube subjects the individuals to unwanted exposure and chills participation in the judicial process. Further, a delay while the merits opinion is issued and appealed to the ARB would render relief from the posted videos unattainable.” Slip op. at 4. The Office of the Solicitor filed an amicus brief urging denial of the petition on the ground that “Respondent’s fears of embarrassment are too speculative to warrant interlocutory review.” Id. at 5.

The ARB determined that the standard for review of an ALJ’s ruling on a motion for a protective order is abuse of discretion. The ARB found that Respondent’s strongest argument was that having video deposition testimony posted to the internet is embarrassing. The ARB noted that Respondent was not objecting to public release of a written transcript of the depositions, but “to the release of video images where the viewer can see the deponent speak the words.” Id.

The ARB denied the petition. The ARB wrote:

Respondent’s Protective Order is insufficient to warrant interlocutory review under the collateral order exception.[4] Respondent has not shown how the law firm’s distribution has caused Respondent any harm beyond the kind of unwelcome attention that accompanies litigation. Respondent’s own glowing characterization of the testimony critically undercuts the claim of embarrassment, noting, “both Mr. Bastian and Captain Graham testified truthfully and competently . . . .” Id. at 25. We note that the deposition transcripts are available and the case has received significant publicity. This theme is also restated in the introduction to Respondent’s Petition thusly: “Delta’s leaders testified truthfully and frankly about Delta’s absolute commitment to safety as a complete review of those transcripts demonstrates.” Id. at 4. The added embarrassment in this case is the video component of the deposition. The fact that a party suffers embarrassment does not make the matter unreviewable upon final review. Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 108-09 (2009) (“The crucial question . . . is whether deferring review until final judgment so imperils the interest as to justify the cost of allowing immediate appeal of the entire class of relevant orders. We routinely require litigants to wait until after final judgment to vindicate valuable rights, including rights central to our adversarial system.”). As a result, Respondent’s claim that this “truthful,” “competent,” and “frank” testimony becomes embarrassing as soon as the public views the deponent is neither compelling nor persuasive to satisfy the Cohen exception and warrant interlocutory review. As the Supreme Court in Carpenter recognized “[p]ermitting parties to undertake successive, piecemeal appeals of all adverse attorney-client rulings would unduly delay the resolution of district court litigation and needlessly burden the Courts of Appeals . . . ‘Routine appeal from disputed discovery orders would disrupt the orderly progress of the litigation, swamp the courts of appeals, and substantially reduce the district court's ability to control the discovery process.’” 558 U.S. at 112-13.

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[4] Importantly, we note that video has become a ubiquitous part of society permeating all aspects of public life. With the explosive growth of video cameras, it is no longer possible to avoid security cameras, dashcams, bodycams, webcams, phonecams, nannycams, minicams, spycams, and doorbell cams. We also note that it is routine for senior corporate officers to appear on business news programs, communicate by video teleconference, and appear in television advertising as the lead pitchman for their brand. Although this experience is not controlling, it does inform our analysis when contrasting it with claims of “embarrassment” discussed in legacy decisions through the years.

Id. at 6.

Poulter v. Central Cal Transportation, LLC, ARB No. 2018-0056, ALJ No. 2017-STA-00017 (ARB Aug. 18, 2020) (Decision and Order)

[STAA Digest V B 2]
PROTECTED ACTIVITY; COMPLAINANT’S REPORT OF OVERWEIGHT REAR AXLE, FOLLOWED BY REFUSAL TO ATTEMPT A “SLAM” MANEUVER TO ADJUST THE LOAD ON THE AXLE TO THE LEGAL LIMIT, FOUND NOT TO BE A PROTECTED REFUSAL TO DRIVE; RECORD SHOWED THAT RESPONDENT NEVER DIRECTED COMPLAINANT TO DRIVE ON A OVERWEIGHT AXLE; DISPATCHER’S MISSTATEMENT CONCERNING LEGAL LIMIT ON REAR AXLE DID NOT SUPPORT INFERENCE THAT COMPLAINANT WAS INSTRUCTED TO DRIVE OVER LEGAL LIMIT UNDER THE FACTS OF THE CASE

[STAA Digest IV G]
CONTRIBUTING FACTOR CAUSATION; AXIOMATIC THAT WITHOUT PROTECTED ACTIVITY, THERE CAN BE NO CAUSAL RELATIONSHIP; CIRCUMSTANTIAL EVIDENCE FOUND NOT TO SUPPORT FINDING OF CAUSATION UNDER THE FACTS OF THE CASE

[STAA Digest IV H]
AFFIRMATIVE DEFENSE; ARB CITES FOSAMAX PRODS. LIAB. LITIG. TO DEFINE CLEAR AND CONVINCING EVIDENCE AS EVIDENCE INDICATING THAT THE THING TO BE PROVED IS HIGHLY PROBABLE OR REASONABLY CERTAIN; RESPONDENT ESTABLISHED CLEAR INSUBORDINATION UNDER THE FACTS OF WHERE COMPLAINANT REFUSED A DIRECTIVE TO ATTEMPT A LEGAL MANEUVER TO ATTEMPT TO ADJUST LOAD TO BRING REAR AXLE WITHIN LEGAL LIMIT, AND YELLED AT HER SUPERVISOR

In Poulter v. Central Cal Transportation, LLC, ARB No. 2018-0056, ALJ No. 2017-STA-00017 (ARB Aug. 18, 2020), Complainant picked up a sealed intermodal container of tires and proceeded directly to truck scales, where it was determined that the weight on the trailer’s tandem axle was 600 pounds over the legal limit, apparently because the tires had piled up toward the back doors of the sealed container. Complainant texted the dispatcher, who directed Complainant to try to “slam” the load. Slamming is a technique for shifting a load by using forward momentum with an abrupt stop. During the texting, the dispatcher erroneously stated that the legal limit on the tandem axel was 34500 pounds; it was actually 34000 pounds. Complainant disputed the dispatcher’s statement about the legal limit, refused to attempt the slam maneuver, and stated that she could not be forced to run an overweight load. The dispatcher directed Complainant to call the office. Both parties agreed that the subsequent phone conversation concerned the dispatcher’s instruction to attempt to bring the load into compliance with the weight restrictions and to determine whether the load could be safely transported; that Complainant refused to attempt to try to bring the load into compliance; and that Complainant was instructed not to drive the load once she refused to try to adjust the weight off the rear axle. Complainant became agitated and yelled at the dispatcher. As a result of this incident, Complainant was terminated from employment for insubordination. Complainant filed an STAA retaliation complaint, naming both her employer and the dispatcher as Respondents. The ALJ found in Complainant’s favor. On appeal, the ARB reversed in a split decision.

Protected activity

The ARB majority stated that ALJ had found that the dispatcher’s error in stating the legal axle limit represented an instruction to drive with the weight in excess of the correct limit, rendering Complainant’s refusal to haul the load protected activity. The ARB found that the ALJ’s focus on the dispatcher’s misstatement was error, and that the ALJ had ignored credible evidence demonstrating that the “refusal to drive” was not protected. The ARB found that, despite the dispatcher’s misstatement, Complainant and the dispatcher had agreed that the weight was over the limit, and that Complainant was actually instructed not to drive the load with an excessive weight on the rear axle. Complainant’s testimony, and the undisputed general policy of Respondent, indicated that drivers were never instructed to drive overweight loads if they could not be adjusted to legal weight requirements. The majority found that Complainant’s testimony indicated that it was her primary responsibility to try to adjust an overweight load, as it is the driver who is in the best position to take reasonable corrective action. Both Complainant and the dispatcher understood that slamming did not violate vehicle codes or DOT regulations, and was common practice for Respondent’s drivers. Although there was disagreement between the dispatcher and Complainant whether slamming would work in this instance, they agreed that the dispatcher ordered her to try the technique. Complainant refused, and instead drove the load while overweight to Respondent’s facility to drop it off. The majority found that the circumstances indicated that it was only an irrelevant, speculative, and hypothetical question whether the dispatcher would have attempted to compel Complainant to drive. The majority found that no interpretation of the evidence supported an inference that the dispatcher’s factual error about the legal weight limit amounted to an instruction to drive overweight.

The dissenting member of the Board would have found that Complainant engaged in protected activity “under 49 U.S.C. § 31105(a)(1)(A) when she conveyed to her supervisor, Respondent Ryan Rotan, that his request to drive the truck with an overweight tandem-axle would violate the law (23 C.F.R. § 658.17) and when she refused to drive under § 31105(a)(1)(B)(i).” Slip op. at 18.

Contributing factor causation

The ARB majority began its analysis of contributing factor causation by noting that “[i]t is axiomatic that without protected activity, there can be no causal relationship between the Respondents and any claim of adverse action.” Id. at 13. The majority found that it was Complainant’s refusal to attempt to make the load safe which caused her termination, and that such refusal could not be characterized either as protected activity or as a contributing factor. The ARB further determined that, even if the reporting of the overweight condition of the load was protected activity, the ALJ’s conclusion of contributing factor causation was in error. The ARB noted that the ALJ discussed the “intertwined” nature of the protected activity and the termination. The ARB noted that the ALJ rendered his decision prior to the ARB’s decision in Thorstenson v. BNSF Ry. Co., ARB Nos. 2018-0059, -0060, ALJ No. 2015-FRS-00052, slip op. at 10 (ARB Nov. 25, 2019), in which the ARB determined that “an ‘inextricably intertwined’ or ‘chain of events’ analysis may impede the necessary analysis of the facts and the law.” Id. (footnote omitted). The majority found that the ALJ’s discussion on this subject “obscured and oversimplified the evidence in this case.” Id. The dissenting member noted in this regard his conclusion that “an ALJ can find that protected activity was intertwined with (was the proximate cause for) the adverse action through normal causation analysis without violating the criticism identified in Thorstenson. . . .” Id. at 22, n.92.

The ARB found that the ALJ’s analysis of the circumstantial evidence was not supported by substantial evidence in the record. Rather, temporal proximity was not supported because the dispatcher never asked Complainant to drive an overweight load; Complainant had previously reported overweight loads and had never been told to drive the load; Complainant had attempted momentum shifts in the past, and if they didn’t work, she was instructed to take another load or to return to the facility without a load; the record indicated that Respondents were accommodating to drivers reporting overweight loads; during the incident in question the dispatcher stressed that he did not want Complainant driving an overweight load. In contrast, Complainant testified that attempting to adjust the load was part of her obligation as a driver.

Affirmative defense

The ARB majority held that Respondent established by clear and convincing evidence that it would have taken the same action based on the Complainant’s insubordination in refusing to attempt to balance the load. The ARB noted that in in Gordon v. Brindi Trailer and Service, Inc., ARB No. 2017-0054, ALJ No. 2016-STA-00019 slip op. at 5 (ARB Mar. 13, 2020)(per curiam), it had stated that “an employer will have a complete affirmative defense when it can prove ‘by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of the protected activity.’” Id. at 15. The ARB further cited In re Fosamax (Alendronate Sodium) Prods. Liab. Litig., 852 F3d 268, 286 & fn. 99 (3rd Cir. 2017)(quoting Black’s Law Dictionary (10th ed. 2009), for the proposition that “the high bar of clear and convincing evidence has been defined as ‘evidence indicating that the thing to be proved is highly probable or reasonably certain.’” Id.

In the instant case, the ARB determined that there was substantial evidence showing that Respondent had a disciplinary action policy which included the possibility of termination for insubordination. The ARB found that the record showed that Complainant was insubordinate, having been ordered to attempt to shift the load. The ARB noted that Complainant failed to show that the order was illegal, and that the ALJ had discredited Complainant’s contention that she believed at the time that the maneuver under the circumstances would have been unsafe. The ARB found that Complainant’s subjective belief that the maneuver would have been futile did “not excuse her from engaging in what was an unobjectionable task that was within her means and experience to try.” Id. at 16. Complainant also admitted that yelling at her supervisor was both inappropriate and possible grounds for termination. The majority noted the dissent’s proposal that the legal term of “insubordination” should be considered “elastic”—and agreed that legal concepts must be applied to the facts of the case —but found that the insubordination in this case was clear.

The dissent found that Complainant was protected when she reported the overweight axle and refused to drive, and that she did not lose that protected status when her employer asked her to slam and she refused. The dissent stated that “[f]or purposes of STAA’s contributing factor element, I agree with the ALJ that Poulter’s refusal to drive because the truck was overweight encapsulates her refusal to slam the truck to remedy that overweight axle.” Id. at 21-22.

Budri v. FirstFleet, Inc., ARB No. 2020-0061, ALJ No. 2020-STA-00090 (ARB Aug. 17, 2020) (per curiam) (Decision and Order)

The ARB denied Complainant’s petition for review of his fifth complaint alleging that FirstFleet, Inc. retaliated against him in violation of the STAA. The ALJ had dismissed the fifth complaint because Complainant had not alleged something beyond what had been fully adjudicated in his four previously denied complaints. The ALJ found that the instant complaint was barred by res judicata and issue preclusion, and was frivolous.