Laidler v. Grand Trunk Western Railroad Co., ARB No. 2021-0013, ALJ No. 2014-FRS-00099 (ARB Aug. 31, 2021) (per curiam) (Decision and Order)
REFUSAL TO WORK UNDER HAZARDOUS CONDITIONS; REQUIREMENT TO NOTIFY THE RAILOARD CARRIER “WHERE POSSIBLE”; ARB AFFIRMS ALJ’S DETERMINATION THAT IT HAD NOT BEEN POSSIBLE FOR COMPLAINANT TO NOTIFY RESPONDENT THAT A ROLL-BY INSPECTION COULD NOT BE PERFORMED DUE TO THE CONDITIONS
BACK WAGES; ALJ DID NOT ERR IN INCLUDING AN 18.6% RETROACTIVE INCREASE BASED ON A UNION OFFICIAL’S TESTIMONY WHERE RESPONDENT PRESENTED NO REBUTTAL
PUNITIVE DAMAGES; ALJ DID NOT COMMIT REVERSIBLE ERROR IN AWARDING $100,000 WHERE THE ALJ CONSIDERED MULTIPLE FACTORS, HAD SET THE AMOUNT BASED ON COMPARABLE FRSA CASES, AND DETERMINED THAT RESPONDENT HAD CREATED AN ENVIRONMENT WHERE EMPLOYEES WERE PLACED IN DANGER FOR FEAR OF LOSING THEIR JOBS
In Laidler v. Grand Trunk Western Railroad Co., ARB No. 2021-0013, ALJ No. 2014-FRS-00099 (ARB Aug. 31, 2021) (per curiam), On March 7, 2013, Complainant filed a complaint with OSHA alleging that Respondent violated the FRSA by terminating his employment in retaliation for not performing a roll-by inspection due to hazardous conditions. The ARB remanded the first ALJ’s decision to reconsider whether it had been possible for Complainant to notify Respondent of his intention not to perform an on-the-ground roll-by inspection because of the hazardous terrain. A newly assigned ALJ on remand found, after a comprehensive review of the evidence, that it was not possible for Complainant to have given the notice under the circumstances. The ALJ on remand adopted the original ALJ’s remedies, which included an 18.6% increase upon any lost wages by Complainant and $100,000 in punitive damages.
Refusal to work "where possible" notification requirement
The remand issue focused on 49 U.S.C. § 20109(b)(2), which protects an employee’s refusal to work under hazardous conditions. That provision includes a notification to the railroad condition—i.e., “…where possible, [the employee] has notified the railroad carrier of the existence of the hazardous condition and the intention not to perform further work . . . unless the condition is corrected immediately[.]” On appeal, Respondent argued that the ALJ had conflated the questions of--whether the urgency of the situation did not allow sufficient time to eliminate the danger without refusal—and whether the employee, where possible, notified the railroad carrier of the existence of the hazard. The ARB, however found that substantial evidence supported the ALJ’s determination that it was not possible for Complainant to notify the railroad carrier of the existence of the hazardous condition.
Increase to back wages based on union official testimony about CBA
Respondent also argued on appeal that the ALJ erred by imposing an 18.6% increase to Complainant’s lost wages; Respondent contended that the ALJ did not have the jurisdiction to interpret the collective bargaining agreement. The ARB, however, determined that the only evidence in the record concerning Complainant’s back pay determination was “the union official’s testimony, which stated that a new labor wage agreement was passed between Respondent and Complainant’s union, that it was ratified and retroactive to 2010, and that it called for an 18.6% pay increase for all employees.” Slip at 7 (footnote omitted). The ARB noted that “Respondent provided no rebuttal witnesses or documents to dispute the annual percentage wage increase.” Id.
Punitive damages
Respondent also argued that the ALJ erred in awarding Complainant $100,000 in punitive damages “because Respondent’s general manager ‘honestly believed that [Complainant] was lying’ . . . .” Id. at 6 (footnote omitted). The ARB, however, found no reversible error by the ALJ in making the punitive damages award. The ARB noted that the ALJ had relied on factors such as--that Complainant had been singled out for discipline while other employees faced no discipline; Respondent’s general manager had relied on unverifiable personal assumptions about the conditions and ignored objection evidence; and, the general manager relied in making the termination decision upon witnesses and information that were never presented at the formal investigation or revealed to Complainant. The ARB also noted that the ALJ based the amount of the award on amounts awarded in other FRSA cases, how Complainant had been treated, and mitigating factors. The ALJ had determined that a work environment had been created by Respondent that put employees in danger out of fear of losing their livelihoods.
Kossen v. Asia Pacific Airlines, ARB No. 2021-0012, ALJ No. 2019-AIR-00011 (ARB Aug. 26, 2021) (per curiam) (Decision and Order)
The ARB determined that the ALJ's Decision and Order Denying Complaint had been well reasoned based on the facts and applicable law, and specifically that substantial evidence supported the ALJ's finding that Respondent did not commit an adverse action against Complainant. The ARB was not persuaded by Complainant's appellate briefing that the ALJ erred. The ARB affirmed, adopted and attached the ALJ's decision.
Administrator, Wage and Hour Div. USDOL v. Frank's Nursery, ARB No. 2020-0015 and -0016, ALJ No. 2018-TAE-00028 (ARB Aug. 25, 2021) (per curiam) (Decision and Order)
H-2A JOB ORDER; DRUG SCREEN MUST BE DISCLOSED AS A JOB REQUIREMENT; ARB WILLING TO ENTERTAIN ARGUMENT THAT NON-IMMIGRANT WORKERS WOULD KNOW THAT SUCH SCREENING WAS THE NORM, BUT NO SUCH EVIDENCE WAS PUT INTO THE RECORD IN THE INSTANT CASE
H-2A REGULATORY REQUIREMENT OF PAY STATEMENT WITH EMPLOYER’S FEIN; ARB REJECTS CONTENTIONS THAT PAY STATEMENTS ARE NOT REQUIRED; AND -- THAT LIABILITY SHOULD BE WAIVED BECAUSE THERE WAS A PRIVACY CONCERN, THAT IT WAS A MERE TECHNICAL VIOLATION WITH NO HARM SHOWN, AND THAT A THIRD-PARTY PAYROLL VENDOR WAS AT FAULT
H-2A REGULATORY REQUIREMENT OF SANITARY HOUSING; CLAIM OF DE MIMINIS VIOLATION INSUFFICIENT TO OVERTURN ALJ’S DETERMINATION OF VIOLATION; ARB WILLING TO ENTERTAIN ARGUMENT THAT EMPLOYEES SHARE A RESPONSIBILITY TO MAINTAIN THE PREMISES ONCE OCCUPATION BEGINS, BUT DECLINED TO DO SO IN THE INSTANT CASE WHERE RESPONDENT PRESENTED NO EVIDENCE THAT IT HAD EVEN ATTEMPTED TO MAINTAIN THE PREMISES
PAYROLL DEDUCTIONS FOR SOCIAL SECURITY AND MEDICARE FOUND TO BE H-2A VIOLATIONS; RESPONSIBILITY COULD NOT BE SHIFTED TO WORKERS FOR NOT CLAIMING EXEMPTIONS OR TO PAYROLL PROVIDER; FACT THAT RESPONDENT HAD NOT PROFITTED FROM DEDUCTIONS WAS NOT A FACTOR; ARB DECLINED TO CREDIT EMPLOYER FOR REPAYMENTS OR REFUNDS OF DEDUCTIONS TO THE WORKERS WHERE THERE WAS NO EVIDENCE OF SUCH IN THE RECORD, BUT STATED ITS EXPECTATION THAT THE WAGE AND HOUR DIVISION WOULD ENSURE THAT WORKERS DID NOT GET A DOUBLE RECOVERY
In Administrator, Wage and Hour Div. USDOL v. Frank's Nursery, ARB No. 2020-0015 and -0016, ALJ No. 2018-TAE-00028 (ARB Aug. 25, 2021) (per curiam), the parties filed cross petitions for ARB review of the ALJ’s Decision and Order on the Wage and Hour Division Administrator’s complaint in which multiple violations of H-2A program regulations were alleged. The ALJ had affirmed the complaint as to certain violations and denied it as to others.
Requirement that drug screening be disclosed in the Job Order
The ARB reversed the ALJ’s determination that Respondent’s not disclosing on the job order a drug screening requirement was not an H-2A regulation violation. The ARB noted that the H-2A regulations require the employer to disclose on the job order all material terms and conditions of employment for the position the employer seeks to fill. The ARB explained why such a requirement is material:
- “Material” means “[o]f a nature that knowledge of the item would affect a person’s decision-making; significant; essential.” Drug screening is a condition of employment that surely could affect an H-2A worker’s decision to apply for or accept employment with Respondent, and has a significant impact on the employer-employee relationship. Employees, especially those like H-2A workers who take the extraordinary step of leaving their home countries to accept temporary employment in the United States, should know before applying for or accepting a position that they may be subjected to drug testing, and that they could be disqualified, disciplined, or terminated based on the results thereof. The fact that H-2A workers’ employment may be conditioned on their willingness and their ability to take and pass a drug test makes this a material term of employment.
Slip op. at 5-6 (footnote omitted). The ARB stated that its holding was consistent with those of other administrative bodies concerning the materiality of drug testing to an employment relationship, and noted that it was significant that ETA requires drug screening to be identified as a job requirement on the Form ETA-790. The ARB was not persuaded by Respondent’s argument that drug screens are so prevalent in the industry that they are implied. The ARB stated that “[e]ven if drug testing or screening is widespread in the Texas agricultural industry, we nevertheless hold that it is a material term of employment, and, therefore, had to be disclosed on Respondent’s job order.” Id. at 7 (footnote omitted). In a footnote, the ARB suggested that its holding might be different if Respondent put on evidence showing that nonimmigrant, foreign workers would be aware that drug testing was the norm. Id. at 7, n. 26.
FEIN on pay statements
The ARB affirmed the ALJ’s determination that Respondent violated the H-2A regulation requiring employers to provide H-2A workers with written pay statements that include the employer’s Federal Employer Identification Number (FEIN). In the instant case, it was undisputed that the pay statements had not included the FEIN. The ARB rejected Respondent’s contention, citing FLSA and MSPA guidance, that it was not required to issue pay statements at all. The ARB noted that FLSA and MSPA are different laws, and that the H-2A regulations require issuance of pay statements with a FEIN. Nor was the ARB persuaded that Respondent should be relieved of liability for this technical violation because they were trying to prevent identity theft, because no harm had been shown, and because the end of year W-2s had the FEIN. The ARB stated that such policy and purpose-driven arguments could not override the plain language of the regulation. Respondent’s argument that the failure to include the FEIN was the fault of a third-party payroll vendor was also rejected by the ARB. The ARB said that it fine for an employer to delegate payroll preparation tasks to another entity, but doing so does not relieve the employer from ensuring a compliant pay statement.
Sanitary housing
The ARB affirmed the ALJ’s determination that the housing Respondent provided to its H-2A workers violated OSHA standards, the compliance with is required by the H-2A regulations. The ARB was not persuaded by Respondent’s assertion that any violations were de minimis and quickly remedied. The ARB noted that the violations were supported by a combination of factors, including evidence of rat or other pest feces and significant amounts of garbage and debris on the grounds--and Respondent’s owner’s admission that he would not want to live in such conditions.
The ARB was willing to entertain an argument that employees share a responsibility to maintain the premises once occupancy begins, and that employee conduct might be germane to employer liability. The ARB found, however, that it was not necessary to explore a shared responsibility factor in the instant case because Respondent had presented no evidence that it took any steps to maintain the property after the H-2A workers took occupancy – even the of the grounds and common areas of the housing.
Social Security and Medicare Deductions; WHD to Ensure No Double Dipping If Workers Had Already Been Refunded or Repaid for Improper Deductions
The ARB affirmed the ALJ’s determination that Respondent’s paycheck deductions for Social Security and Medicare violated the H-2A regulations because non-resident H-2A workers do not owe Social Security or Medicare taxes, and such impermissible deductions brought the H-2A workers’ pay below the statutory minimum. The ARB was not convinced by Respondent’s argument that it should be relieved from liability because the workers had not claimed exemptions from tax withholding on their W-4s, because it trusted its third-party payroll provider to make appropriate deductions, and because it did not profit from or abscond with the deductions.
The ARB rejected Respondent’s contention that it should be credited for amounts repaid or refunded to the H-2A workers, because (1) this argument was not raised below, and (2) no evidence was offered that this actually occurred. Nonetheless, the ARB stated:
- However, we expect that before the WHD makes any payments for back wages in this case, it will ensure that the H-2A workers from whom deductions were made for Social Security and Medicare taxes did not previously receive a refund or repayment for the deductions. Making back wage payments to employees who have already been repaid would result in an improper double recovery.
Id. at 14. The ARB declined to reduce the civil money penalty for the deductions, as Respondent had failed to address the regulatory factors that may be considered in assessing the amount of a penalty.
Jaludi v. Citigroup, Inc., ARB No. 2021-0053, ALJ No. 2021-SOX-00014 (ARB Aug. 25, 2021) (per curiam) (Order Dismissing Petition for Review)
TIMELINESS OF PETITION FOR ARB REVIEW; EQUITABLE TOLLING IS NOT ESTABLISHED BY COMPLAINANT’S DIFFICULTY FINDING AN ATTORNEY TO TAKE HIS CASE, OR BY ALJ’S NOT HAVING INCLUDED A NOTICE OF APPEAL RIGHTS ON THE ORDER OF DISMISSAL
In Jaludi v. Citigroup, Inc., ARB No. 2021-0053, ALJ No. 2021-SOX-00014 (ARB Aug. 25, 2021) (per curiam), Complainant filed his petition for ARB review outside the regulatory deadline. Because this deadline is not jurisdictional, the ARB issued an Order to Show Cause permitting Complainant to explain why his petition should not be dismissed as untimely. The ARB determined that Complainant’s explanations did not establish grounds for equitable tolling. Complainant first asserted that he could not afford an attorney and could not find one willing to take his case on a contingency basis. The ARB held that “inability to hire a representative does not toll the limitations period.” Slip op. at 3. Complainant also asserted that the ALJ’s final order had not mentioned the option to petition for ARB review, or the time period for such a petition. The ARB, however, stated “ALJs are not required by statute or regulation to include a Notice of Appeal Rights in their decisions, and failure to do so does not constitute grounds for tolling the limitations period.” Id. (footnote omitted).
Yelder v. Norfolk Southern Railway Co., ARB No. 2020-0041, ALJ No. 2018-FRS-00069 (ARB Aug. 24, 2021) (per curiam) (Decision and Order)
CONTRIBUTORY FACTOR CAUSATION; SUBSTANTIAL EVIDENCE SUPPORTED ALJ'S FINDING THAT COMPLAINANT WAS FIRED FOR ENGAGING IN A PHYSICAL ALTERCATION, AND THAT PROTECTED ACTIVITY HAD NOT CONTRIBUTED TO RESPONDENT'S TERMINATION DECISION
In Yelder v. Norfolk Southern Railway Co., ARB No. 2020-0041, ALJ No. 2018-FRS-00069 (ARB Aug. 24, 2021) (per curiam), the ARB summarily affirmed the ALJ's determination that FRSA protected activity had not contributed to Respondent's decision to terminate Complainant's employment. Complainant had engaged in protected activity when reporting "a transport driver’s verbal unresponsiveness to his repeated requests, made before and after contacting the Maumee Bridge Operator, to be told where they were going and to stop the vehicle to let him out." Slip op. at 2-3 (footnote omitted). Substantial evidence, however, supported the ALJ's finding that "Complainant’s actions in engaging in a physical altercation with the transport driver and his attempt to take over the steering wheel and brakes of a moving vehicle led to the disciplinary action in this case." Id. at 3.
Lorenzetti v. Worldpay, Inc., ARB No. 2020-0055, ALJ No. 2020-SOX-00012 (ARB Aug. 24, 2021) (per curiam) (Decision and Order)
TIMELINESS OF REQUEST FOR ALJ HEARING; ALJ'S DISMISSAL WAS CONSISTENT WITH THE REGULATIONS WHERE COMPLAINANT WAS PROVIDED AMPLE TIME TO RESPOND TO RESPONDENT'S MOTION TO DISMISS, AND HAD BEEN WARNED THAT A FURTHER EXTENSION WOULD NOT BE GRANTED, BUT COMPLAINANT NEVER RESPONDED SUBSTANTIVELY
In Lorenzetti v. Worldpay, Inc., ARB No. 2020-0055, ALJ No. 2020-SOX-00012 (ARB Aug. 24, 2021) (per curiam), Respondent filed a motion to dismiss Complainant's SOX retaliation complaint on the ground that Complainant's request for an ALJ hearing was not timely filed.
The ALJ provided Complainant about two weeks to respond. The ALJ then granted a two-month extension of time to respond based on a letter from Complainant asking for more time to retain an attorney. The ALJ's Order stated in bold and all caps, “NO FURTHER EXTENSIONS OF TIME WILL BE PERMITTED.” On the day that the response was due, Complainant asked for more time to hire an attorney. The next day, the ALJ dismissed the complaint, first denying the request for additional time, and second reviewing the available record and finding that the hearing request was filed two days after the deadline.
On appeal, the ARB affirmed the ALJ's dismissal, finding that Complainant had responded to the motion to dismiss only in form but not substance, and noting that 29 C.F.R. § 18.70(c) allows an ALJ to treat motions to dismiss for untimeliness as unopposed when the opposing party fails to respond. The ARB found that the ALJ had provided Complainant with a generous amount of time to respond to the motion to dismiss and warned that another extension would not be granted.
Bucalo v. Teamsters Local 100, ARB No. 2021-0030, ALJ No. 2018-STA-00082 (ARB Aug. 11, 2021) (per curiam) (Decision and Order of Remand)
[STAA Whistleblower Digest VII B 5 c]
COVERAGE OF UNION, AND UNION OFFICIALS, UNDER THE STAA; STAA PROHIBITS ANY “PERSON” FROM DISCRIMINATING AGAINST PROTECTED ACTIVITY, AND NOT JUST “EMPLOYERS”; WHERE THE TEAMSTERS UNION PROVIDED AN EXCLUSIVE DRIVER REFERRAL SERVICE, THE ARB REMANDED FOR THE ALJ TO CONSIDER WHETHER THIS MADE THE UNION A “PERSON” WITHIN THE STAA DEFINITION; ALJ ALSO DIRECTED TO CONSIDER WHETHER UNION SECRETARY-TREASURER NAMED IN THE COMPLAINT FIT THE “PERSON” DEFINITION
[STAA Whistleblower Digest VII A 2]
EMPLOYEE UNDER STAA; ARB REMANDED WHERE ALJ HAD FOUND THAT COMPLAINANT, WHO WORKED AS A DRIVER FOR FILM PRODUCTIONS, WAS NOT AN “EMPLOYEE” BECAUSE HE WAS NOT EMPLOYED BY A COMMERCIAL MOTOR CARRIER, BUT ALJ HAD MADE NO FINDINGS OF FACT ON THE QUESTION AND THE STAA DEFINITION INCLUDES “A DRIVER OF A COMMERCIAL MOTOR VEHICLE”
In Bucalo v. Teamsters Local 100, ARB No. 2021-0030, ALJ No. 2018-STA-00082 (ARB Aug. 11, 2021) (per curiam), Complainant worked as the Secretary-Treasurer for Teamsters Local 100. After being voted out of office, he worked as a driver for film productions whose driving jobs were filled through the Teamsters’ exclusive referral service. He filed a STAA complaint contending that the Teamsters refused to refer him after he called in sick. OSHA and the ALJ found that the Teamsters did not fit the definition of “employer” pursuant to the STAA and dismissed the complaint. The ARB reversed and remanded, stating:
- The STAA prohibits any person from discharging, disciplining, or discriminating against an employee regarding the pay, terms, or privileges of employment for engaging in protected activity. A “person” is not exclusively restricted to an employer. Rather, the Act defines a “person” as “one or more individuals, partnerships, associations, corporations, business trusts, legal representatives, or any other organized group of individuals.”
The ALJ erred as a matter of law in holding that Teamsters cannot be a covered respondent because it does not meet the Act’s definition of an “employer.” Rather, the appropriate question is whether Teamsters is a “person” as defined by the Act. Notably, the exclusive referral service in this case presents a unique circumstance. However, the ALJ did not make any findings of fact about whether the referral service provided Teamsters with the ability to discharge, discipline, or discriminate against drivers regarding their pay, terms, or privileges of employment. Thus, the Board remands this case for the ALJ to determine whether Teamsters is a “person” as defined by the Act.
Slip op. at 4 (footnotes omitted) (emphasis as in original). The ARB also noted that the ALJ had not addressed Complainant’s claim against the Secretary-Treasurer who had succeeded Complainant, and directed the ALJ to consider on remand whether the new Secretary-Treasurer was a “person” as defined by the STAA, and to analyze the claim against him. The ARB further stated that the ALJ erred as a matter of law in holding that Complainant was not an “employee” because he was not employed by a commercial motor carrier. The ARB stated:
- The Act’s definition of an “employee” includes “a driver of a commercial motor vehicle.” However, the ALJ made no factual finding as to whether Complainant drove a commercial motor vehicle. On remand, the ALJ must also determine whether Complainant drove a commercial motor vehicle as defined by 49 U.S.C. § 31101(1), and, if so, to reconsider whether Complainant is an “employee.”
Id. at 5 (footnote omitted)
Alliance Exterior Construction, Inc., ARB Case No. 2021-0043, ALJ Case No. 2018-DBA-00005 (ARB Aug. 10, 2021) (Order of Dismissal)
The ARB granted the parties two extensions of time to file a petition for review of the ALJ’s Decision and Order. The parties subsequently filed a notice that they will not pursue an appeal, and the ARB thus dismissed the case.
[Editor’s note: The ALJ had found that Respondent owed $132,644.80 in back wages for violations of the Davis-Bacon Act and the Contract Work Hours and Safety Standards Act. See
Alliance Exterior Construction, Inc., 2018-DBA-00004 (ALJ May 10, 2021).]