Childs v. DimensionalMechanics, Inc., ARB No. 2021-0001, ALJ No. 2017-LCA-00008 (ARB Sept. 30, 2021) (per curiam) (Decision and Order)
BONA FIDE TERMINATION’S REQUIREMENT TO PAY FOR RETURN TRANSPORTATION; ARB AFFIRMED ALJ’S FINDING THAT THERE HAD BEEN A BONA FIDE TERMINATION WHERE RESPONDENT HAD REPEATEDLY OFFERED IN GOOD FAITH TO PAY FOR THE H-1B WORKER’S AIRFARE BACK TO HIS HOME COUNTRY, BUT COMPLAINANT HAD NOT BEEN RESPONSIVE
In Childs v. DimensionalMechanics, Inc., ARB No. 2021-0001, ALJ No. 2017-LCA-00008 (ARB Sept. 30, 2021) (per curiam), Complainant, (the H-1B worker), filed a complaint alleging a variety of violation of the H-1B labor condition application regulations. The ALJ awarded $1,359.12 based on a finding that Respondent committed two violations: it made an unauthorized wage deduction and it failed to automatically enroll Complainant in its 401(k) plan. Id., slip op. at 1. The ALJ found Complainant’s other objections without merit. Id. at 3. The ARB affirmed the ALJ’s decision. Id. at 5–7. In doing so, the ARB held that the employer effectuated a bona fide termination under 20 C.F.R. § 655.731(c)(7)(ii). Id. at 7.
As there was no dispute that the employer notified the Complainant and USCIS of the termination, the sole issue addressed by the ARB was whether the employer satisfied the requirement to provide return transportation to effect a bona fide termination under 20 C.F.R. § 655.731(c)(7)(ii). Id. at 5. The Complainant alleged that the employer failed to do so when it did not pay for return transportation until five months after the termination. Id. The employer stated that it repeatedly attempted to contact the Complainant and it offered to pay for return transportation. Id. The employer also stated that the Complainant filed with USCIS to change to another legal status the day after he was terminated and purchased a return ticket when it learned that the Complainant was still in the United States. Id.
The ARB noted that the ALJ relied on Puri v. Univ. of Alabama Birmingham Huntsville, ARB No. 2013-0022, ALJ Nos. 2012-LCA-00010, 2008-LCA-00038, 2008-LCA-00043, slip op. at 8 (ARB Sept. 17, 2014), and other caselaw recognizing exceptions to the “three-part bona fide termination test in some circumstances.” Id. at 5–6. The ARB stated that the ALJ recognized that, generally, a statement that “return flights will be provided” is insufficient to satisfy the return transportation requirement of 20 C.F.R. § 655.731(c)(7)(ii), but in some cases, “offers to provide for the reasonable costs of return transportation were sufficient.” Id. The ARB agreed with the ALJ’s reliance on Baiju v. Fifth Avenue Committee, ARB No. 2010-0094, ALJ No. 2009-LCA-00045, slip op. at 9 (ARB Apr. 4, 2012) (reissued decision), aff’d, No. 12–cv–5610, 2014WL349295 (E.D.N.Y. Jan. 31, 2014), in finding that the employer effected a bona fide termination because it “repeatedly offered to pay for his airfare back to the United Kingdom” to which the Complainant was not responsive. Id.
While the ARB noted that changing to another lawful status alleviates employers’ obligation to provide return transportation, the ARB found dispositive to its affirmance the employer’s good faith effort to comply with the law by repeatedly attempting to contact the Complainant to pay for return transportation. Id. at 7.
Bankruptcy Estate of Donald M. Graff v. BNSF Railway Co., ARB No. 2021-0002, ALJ No. 2018-FRS-00018 (ARB Sept. 30, 2021) (per curiam) (Decision and Order)
ALJ DECISION AND ORDER; ALJ NEED NOT DISCUSS ALL EVIDENCE IN DISCUSSION SECTION OF DECISION, BUT ONLY EXPLAIN WHY SIGNIFICANT PROBATIVE EVIDENCE HAS BEEN REJECTED
In Bankruptcy Estate of Donald M. Graff v. BNSF Railway Co., ARB No. 2021-0002, ALJ No. 2018-FRS-00018 (ARB Sept. 30, 2021) (per curiam), Complainant noted on appeal that the ALJ had not discussed in the discussion section of his Decision and Order certain of his supervisor’s statements that Complainant argued demonstrated animosity. The ARB stated, however, that “an ALJ ‘need not discuss all evidence presented to her’ and only must explain why ‘significant probative evidence has been rejected.’ Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (quoting Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981)).” Slip op. at 14, n. 116. The ARB determined that in the instant case the evidence of animosity had not been significantly probative, and noted that “the ALJ did refer to the statements in the Findings of Fact and Conclusions of Law section, indicating the he did consider the evidence.” Id.
CONTRIBUTORY FACTOR CAUSATION; ARB AFFIRMED ALJ’S FINDING THAT COMPLAINANT FAILED TO ESTABLISH CONTRIBUTION IN A FACT-SPECIFIC DECISION; MERE SHOWING THAT INVESTIGATION LEADING TO COMPLAINANT’S DISCHARGE WAS FLAWED, WAS INSUFFICIENT TO SHOW CONTRIBUTORY FACTOR CAUSATION, AS THE QUESTION IS WHETHER RESPONDENT BELIEVED IN GOOD FAITH THAT COMPLAINANT WAS GUILTY OF MISCONDUCT AND NOT WHETHER COMPLAINANT WAS ACTUALLY GUILTY OF THAT MISCONDUCT
In Bankruptcy Estate of Donald M. Graff v. BNSF Railway Co., ARB No. 2021-0002, ALJ No. 2018-FRS-00018 (ARB Sept. 30, 2021) (per curiam), Complainant worked as an electronics technician and then as a foreman for Respondent railroad from 2007 to 2017. Complainant lodged a variety of safety complaints with his supervisor. In 2017, Complainant was suspended and then fired for attempting to destroy company property and insubordination. Complainant filed an FRSA retaliation complaint, and the ALJ found that Complainant failed to establish by a preponderance of the evidence that his protected activity contributed to Respondent’s decision to terminate his employment. On appeal, Complainant pointed to evidence he believed demonstrated that he met his burden. The ARB, however, found that substantial evidence supported the ALJ’s decision, and affirmed dismissal of the complaint.
Complainant first pointed to the temporal proximity of only ten days from his protected activity to his suspension. The ARB, however, found that the ALJ correctly determined that temporal proximity alone is generally insufficient to provide contribution by a preponderance of the evidence.
Second, Complainant alleged that there was evidence of disparate treatment of another employee. The ARB noted that “[d]isparate treatment requires that both employees committed similar conduct with comparable seriousness.” Slip op. at 12. The ALJ had afforded more weight to Respondent’s witnesses’ testimony that the other employee’s actions had not been a serious safety violation. Complainant, in contrast, was accused of intentional acts of destroying property. The ARB thus affirmed the ALJ’s finding that Complainant failed to show disparate treatment.
Third, Complainant alleged that “evidence of antagonism and hostility towards Complainant’s safety reports and a change in management’s attitude toward Complainant demonstrates a contributing factor to his termination.” Id. at 13. In this regard, Complainant cited to alleged statements by his supervisor demanding that Complainant not call HR, and to quit bringing safety complainants; to the fact that the supervisor collected information that resulted in an investigation of Complainant; and to the fact that he had never been disciplined in the 10 years prior until the supervisor displayed animosity toward him. Respondent countered that Complainant was not disciplined when making safety complaints in the past, including one directed at the supervisor; the supervisor denied making the statements; and no evidence supported Complainant’s contention that the supervisor made the statements. The ARB noted that Complainant’s evidence had some probative value, but found that it was not enough to cause the ARB to reverse the ALJ’s contributory factor findings.
Fourth, Complainant alleged that pretext was demonstrated by a showing that Respondent’s investigation was flawed. The ARB noted: “The critical inquiry in pretext analysis is ‘whether the employer in good faith believed that the employee was guilty of the conduct justifying discharge,’ rather than ‘whether the employee actually engaged in the conduct for which he was terminated.’” Id. at 14 (footnote and citations omitted). The ARB agreed with Complainant and the ALJ that Respondent’s finding that Complainant attempted to damage company property was based on limited and unreliable evidence. The ARB noted, however, that the ultimate decision-maker could not have been influenced by Complainant’s protected activity when he recommended dismissal, and that the ALJ had accepted Respondent’s witnesses’ testimonies that they believed Complainant had committed the violation. Complainant had not presented any further evidence of pretext.
Feldman v. Risk Placement Services, Inc., ARB No. 2020-0068, ALJ No. 2019-SOX-0052 (ARB Sept. 29, 2021) (per curiam) (Decision and Order)
PROTECTED ACTIVITY; SUMMARY DECISION PROPERLY GRANTED BY ALJ WHERE COMPLAINANT FAILED TO ESTABLISH THAT IT WAS OBJECTIVELY REASONABLE TO ASSERT THAT RESPONDENT HAD DISCRIMINATORY PRACTICES TO STEER MORE EXPENSIVE INSURANCE POLICIES TO ETHNIC CUSTOMERS -- AND EVEN IF IT DID -- COMPLAINANT DID NOT SHOW THAT SUCH A PRACTICE WAS AMONG THE ENUMERATED CATEGORIES OF LAW PROTECTED BY SOX
In Feldman v. Risk Placement Services, Inc., ARB No. 2020-0068, ALJ No. 2019-SOX-0052 (ARB Sept. 29, 2021) (per curiam), Complainant was a licensed insurance broker who owned a California-based company that sold errors-and-omissions insurance to other insurance agents and brokers. Respondent was a managing general agent and insurance wholesaler that worked with independent insurance agents and brokers, like Complainant’s company. Complainant asserted that Respondent terminated its contract with his company because of Complainant’s numerous complaints that Respondent discriminated against ethnic customers, offering them only more expensive policies in violation of federal and state laws. Respondent disputed Complainant’s charge of discriminatory practices and argued that it terminated the contract because Complainant had offered an illegal rebate to a client. Complainant filed a SOX complaint, which OSHA dismissed on the ground that Complainant was not a covered employee under SOX. The ALJ granted summary decision on the ground that Complainant did not engage in SOX-protected activity. The ARB conducted de novo review of the ALJ’s decision to grant summary decision.
The ARB agreed with the ALJ that Complainant could not establish it was objectively reasonable for him to believe that Respondent was committing mail fraud. The ARB stated:
- Viewing the record in the light most favorable to Feldman, we hold Feldman failed to present evidence that could support a finding that a reasonable person in Feldman’s circumstances would have believed that RPS was making insurance coverage decisions based on solely the ethnicities of Feldman’s clients. To the extent that Feldman’s discrimination claim constitutes the basis of his SOX protected activity claim, he has also failed to establish a genuine issue of material fact that his complaints about RPS’s discriminatory insurance practices fell into one of the protected categories of law enumerated by SOX.
Slip op. at 6-7. The ARB pointed to evidence in the record indicating that the sample size of allegedly ethnic clients was far too small to reasonably conclude that there had been a discriminatory scheme; that there was no evidence that Respondent knew the ethnicities of Complainant’s clients; and that there was no evidence to support Complainant’s theory that Respondent directed clients with “ethnic names” or “ethnic zip codes” to more expensive insurance. Although Complainant asserted that one of Respondent’s underwriters had years of experience issuing insurance policies in California, he did not show that this individual would have been familiar with the demographics of the entire state of California, and there was “no evidence that demographic, race, or ethnicity information was ever provided to this individual in connection with the underwriting of RPS’s insurance policies.” Id. at 9. The ARB inferred that Complainant had no objectively legitimate basis to assert that his clients in Northern California were being driven to less expensive policies, while clients around Los Angeles or in Southern California were being driven to more expensive policies -- Complainant’s own evidence showing that his clients were essentially evenly split between Northern and Southern California for both types of policies.
District Council of Iron Workers of the State of California v. Wage and Hour Div., USDOL, ARB No. 2020-0035 (ARB Sept. 27, 2021) (per curiam) (Decision and Order), rev’d and remanded ARB No. 2020-0035 (Sec’y July 15, 2022) (Final Agency Decision and Order).
ADMINISTRATOR DID NOT ABUSE HER DISCRETION IN NOT SETTING A SINGLE PREVAILING WAGE RATE FOR A SINGLE “IRONWORKER” CLASSIFICATION
In District Council of Iron Workers of the State of California v. Wage and Hour Div., USDOL., ARB No. 2020-0035 (ARB Sept. 27, 2021) (per curiam), the ARB found that the Wage and Hour Division (WHD) Administrator did not abuse her discretion in recognizing three distinct classifications for ironworkers (structural, reinforcing, and ornamental), rather than a single ironworker classification, in wage determination surveys for certain rural counties of California. Because survey responses did not satisfy WHD’s six-worker to three-employer sufficiency requirement, the WHD did not issue a Davis-Bacon Act prevailing wage determination for each ironworker classification. The ARB found that “[i]n expanding the geographic scope, and dividing ironworkers into three distinct classifications, the Administrator and WHD reasonably followed the prescribed DBA regulations, agency guidance, and past practices in conducting the wage survey.”
The ARB’s decision was subsequently reversed and remanded by the Secretary of Labor. District Council of Iron Workers of the State of California v. Wage and Hour Div., USDOL, ARB No. 2020-0035 (Sec’y July 15, 2022) (Final Agency Decision and Order).
The ARB adopted the Secretary's Decision and remanded the case to the Administrator to reconsider, consistent with the Secretary's Final Agency Decision and Order, the minimum wage rate for the Iron Worker classification in residential construction projects in the subject rural counties in California. District Council of Iron Workers of the State of California v. Wage and Hour Div., USDOL, ARB No. 2020-0035 (ARB July 26, 2022) (Decision and Order of Remand).
Kolehmainen v. CS Auto HND, LLC, ARB No. 2021-0027, ALJ No. 2020-SOX-00044 (ARB Sept. 27, 2021) (per curiam) (Decision and Order Approving Settlement and Dismissing Complaint with Prejudice)
SETTLEMENT AGREEMENT; ARB REVIEW AND APPROVAL; ARB CONSTRUES CONFIDENTIALITY AND NON-DISPARAGEMENT CLAUSES AS BEING SUBJECT TO THE DEPARTMENT'S OBLIGATIONS UNDER FOIA, AND NOT PRECLUDING COMPLAINANT FROM COMMUNICATING WITH STATE AND FEDERAL AUTHORITIES EITHER VOLUNTARILY OR PURSUANT TO AN ORDER OR SUBPOENA
In Kolehmainen v. CS Auto HND, LLC, ARB No. 2021-0027, ALJ No. 2020-SOX-00044 (ARB Sept. 27, 2021) (per curiam), the parties submitted a settlement agreement for the ARB's review and approval. The ARB found that the settlement, as construed by the ARB, was fair, adequate, and reasonable, and did not contravene the public interest. One of the items construed by the ARB was the agreement's confidentiality and non-disparagement clauses. The ARB first noted that the agreement was subject to release under FOIA, subject to applicable exemptions and DOL regulatory procedures for responding to FOIA requests. The ARB then addressed whether the agreement would preclude Complainant from communicating with government enforcement agencies. The ARB stated:
- Additionally, if the confidentiality and non-disparagement clauses were interpreted to preclude Complainant from communicating with federal or state enforcement agencies concerning alleged violations of law, they would violate public policy and constitute unacceptable “gag” provisions.
The Agreement provides that Complainant is excused from the confidentiality obligations “as required by law.” We construe such language as allowing Complainant, either voluntarily or pursuant to an order or subpoena, to communicate with, or provide information to, state and federal authorities about suspected violations of law involving Respondent.
Slip op. at 3 (footnotes omitted).
Meek v. BNSF Railway Co., ARB No. 2021-0063, ALJ No. 2019-FRS-00070 (ARB Sept. 22, 2021) (per curiam) (Order Approving Withdrawal of Respondent's Petition for Review and Dismissing Appeal)
The ARB dismissed the appeal based on Respondent's notice that it was withdrawing its petition for review of the ALJ's decision and order.
Campbell v. National Railroad Passenger Corp (Amtrak), ARB No. 2020-0056, ALJ No. 2018-FRS-00012 (ARB Sept. 21, 2021) (per curiam) (Decision and Order)
CONTRIBUTING FACTOR CAUSATION; APPLICATION OF ESTABLISHED DOWNSIZING POLICY AND COLLECTIVE BARGAINING AGREEMENT WAS SOLE CAUSE OF COMPLAINANT'S FURLOUGH
In Campbell v. National Railroad Passenger Corp (Amtrak), ARB No. 2020-0056, ALJ No. 2018-FRS-00012 (ARB Sept. 21, 2021) (per curiam), Complainant filed a complaint alleging that Respondent violated the FRSA and FSMA by furloughing her after she reported the improper storage of pillows, pillow cases, food, and beverages at one of Respondent’s station base. The ALJ found that Complainant failed to prove by a preponderance of the evidence that her protected activity was a contributing factor in the furlough decision. In a summary decision, the ARB affirmed the ALJ's decision. The ARB stated:
- Substantial evidence supports the ALJ’s findings that Respondent’s reasons for terminating Complainant’s employment were clear and straightforward—based on its application of the previously established company-wide downsizing directive and the CBA. He also found that there was no indication of pretext. Thus, substantial evidence supports the ALJ’s finding that Complainant’s report of improper storage was not a contributing factor in her being furloughed. Accordingly, we summarily affirm the ALJ’s conclusion.
Slip op. at 4-5 (footnote omitted).
Deepali Company, LLC, ARB No. 2021-0028, ALJ No. 2017-DBA-00022 (ARB Sept. 20, 2021) (per curiam) (Decision and Order)
DEFAULT JUDGMENT; ALJ DID NOT ABUSE HIS DISCRETION IN DEFAULTING RESPONDENTS WHERE THE ADMINISTRATOR MADE REPEATED ATTEMPTS TO RESOLVE A DISCOVERY DISPUTE TO NO AVAIL, AND THE ALJ HAD GIVEN RESPONDENTS AN ADDITIONAL CHANCE TO PROVIDE DISCOVERY AND WARNED THAT FAILURE TO COMPLY WITH THE ALJ'S ORDER TO COMPLY COULD RESULT IN A DEFAULT JUDGMENT
In Deepali Company, LLC, ARB No. 2021-0028, ALJ No. 2017-DBA-00022 (ARB Sept. 20, 2021) (per curiam), Respondents requested an ALJ hearing on the Wage and Hour Division conclusion that Respondents had disregarded several DBA and CWHSSA labor standards. The ALJ granted a default judgment based on Respondent's lack of cooperation in discovery. The ARB summarily affirmed the ALJ's default judgment. The ARB stated:
- In entering a default judgment, the ALJ considered [the five factor test of Howick v. Campbell-Ewald Co., ARB No. 2004-0065, ALJ No. 2004-STA-00007, slip op. at 8 (Nov. 30, 2004)], and the procedural background supports his reasoning. From 2018 through 2020, the Administrator made repeated attempts to resolve the discovery dispute, including explaining to Petitioners why their responses were deficient. Despite these efforts, Petitioners failed to complete and/or supplement the Administrator’s discovery requests. In addition, the Administrator filed two motions to compel, the second of which the ALJ granted. In the order to compel, the ALJ provided Petitioners with an additional chance to respond to discovery requests and warned that failure to comply with the order could result in a default judgment.
However, Petitioners remained uncooperative and did not respond to any of the outstanding discovery requests. Further, the ALJ considered Petitioners’ failure to comply with the order to compel, and their continued failure to participate in discovery when he determined that default judgment was warranted.
Slip op. at 4 (footnotes omitted).
Administrator, Wage and Hour Div., USDOL v. G Farms, LLC, ARB No. 2021-0040, ALJ No. 2018-TAE-0034 (ARB Sept. 20, 2021) (per curiam) (Order Granting Respondents' Notice of Withdrawal of Appeal)
Order granting Respondents' notice to withdraw their pending appeal.
Ellis v. Goodheart Specialty Meats, ARB No. 2021-0005, ALJ No. 2019-FDA-00006 (ARB Sept. 9, 2021) (Order Denying Motion for Reconsideration)
Kinnett v. Sotera Defense Solutions, ARB No. 2021-0055, ALJ No. 2021-OFC-00001 (ARB Sept. 9, 2021) (Decision and Order)
OALJ IS NOT A COURT OF GENERAL JURISDICTION, AND HAS NO AUTHORITY TO REVIEW A COURT OF APPEALS DECISION AFFIRMING A DISTRICT COURT'S DISMISSAL OF A COMPLAINANT'S TITLE VII ACTION THAT HAD BEEN FILED AFTER OFCCP HAD ISSUED A "RIGHT TO SUE" LETTER; OFCCP HAS EXCLUSIVE AUTHORITY TO BRING COMPLAINTS BEFORE OALJ ENFORCING E.O. 11246
In Kinnett v. Sotera Defense Solutions, ARB No. 2021-0055, ALJ No. 2021-OFC-00001 (ARB Sept. 9, 2021), Complainant filed a charge with the Office of Federal Contract Compliance (OFCCP) alleging that Respondent had discriminated against him based on sexual orientation and religion in violation of Executive Order 11246. OFCCP determined that there was insufficient evidence to find that Respondent had violated the law and issued a "Right-To-Sue" letter. Complainant then filed a Title VII suit in a Federal district. The district court granted Respondent's motion to dismiss, and the Fourth Circuit Court of Appeals affirmed the dismissal.
Complainant then filed a request for review of the Fourth Circuit’s decision with the Office of Administrative Law Judges (OALJ). After briefing from Complainant, Respondent, and OFCCP, the ALJ issued a Recommended Decision and Order Dismissing Request for Review for Lack of Jurisdiction. "The ALJ explained that the OALJ is not a court of general jurisdiction and that the OFCCP has exclusive authority to bring complaints enforcing Executive Order 11246 before the OALJ." Slip op. at 3, citing in n.3 to Entergy Services, Inc. v. OFCCP, ARB No. 2013-0025, ALJ No. 2013-OFC-00001, slip op. at 3 (ARB May 19, 2014)).
Complainant filed an exception asserting that the ALJ had indicated that the ALJ would have granted Complainant's motion to remand the case to the Fourth Circuit had he cured a procedural error by withdrawing his request for review. The ARB found, however, that the ALJ was expressing that he would have granted a motion to withdraw the request for ALJ review, rather than a motion to remand. The ARB affirmed the ALJ's recommended decision, finding no reason to disturb it.
Mazenko v. Pegasus Aircraft Management, LLC, ARB No. 2021-0032, ALJ No. 2019-AIR-00001 (ARB Sept. 7, 2021) (Order Accepting Complainant's Appeal and Setting Briefing Schedule)
TIMELINESS OF PETITION FOR REVIEW; SHOW CAUSE FOR FAILURE TO TIMELY FILE; EQUITABLE TOLLING APPROPRIATE WHERE COMPLAINANT MISSED APPEAL DEADLINE BECAUSE ALJ CHANGED METHOD OF SERVICE WITHOUT ADEQUATE NOTICE
In Mazenko v. Pegasus Aircraft Management, LLC, ARB No. 2021-0032, ALJ No. 2019-AIR-00001 (ARB Sept. 7, 2021), the ARB found that the Complainant showed good cause for his failure to timely file his Petition for Review with the ARB. Accordingly, the Board accepted Complainant's appeal.
On October 26, 2020, the ALJ issued a Decision and Order Denying Relief (D. & O.). Under 29 C.F.R. § 1979.110(a), a petition for review of an ALJ's decision must be filed "within ten business days of the date of the decision of the" ALJ to be effective. On April 23, 2021, Complainant filed an untimely Petition for Review. Complainant and his counsel claimed that they never received the D. & O. On May 17, 2021, the ARB issued an Order to Show Cause, ordering Complainant to show cause why the ARB should not dismiss his appeal for failing to timely file a Petition for Review.
Complainant argued equitable tolling was appropriate because the ALJ changed the form of service without adequately notifying Complainant, which prevented Complainant from timely filing a Petition for Review. The ARB held that the circumstances justified equitable tolling of the limitations period because inadequate notice of the change in service prevented Complainant from filing a timely Petition for Review. Consequently, the ARB accepted Complainant's Petition for Review.
International Brotherhood of Electrical Workers, Local 113 v. Administrator, Wage and Hour Div., USDOL, ARB No. 2020-0039 (ARB Sept. 1, 2021) (per curiam) (Decision and Order)
SERVICE CONTRACT ACT REQUIREMENT TO PAY FRINGE BENEFITS UNDER THE COLLECTIVE BARGAINING AGREEMENT; WHERE THE RELEVANT PORTION OF THE CBA WAS AMBIGUOUS, THE ADMINISTRATOR PROPERLY CONSIDERED EXTRINSIC EVIDENCE OF THE PARTIES’ INTENTION TO CONTINUE AN HISTORICAL PRACTICE OF INCLUDING FRINGE BENEFITS AS PART OF SEASONAL WORKERS’ BASE WAGE
In International Brotherhood of Electrical Workers, Local 113 v. Administrator, Wage and Hour Div., USDOL, ARB No. 2020-0039 (ARB Sept. 1, 2021) (per curiam), the Petitioner – a union representing seasonal workers – filed a complaint with the Wage and Hour Division (WHD) alleging that the workers were not being paid benefits in accordance with the collective bargaining agreement (CBA) as required by the Service Contract Act (SCA). The contractor had paid full-time grounds workers approximately $13.00 an hour, while seasonal laborers were paid approximately $16.50 an hour. The full-time workers, however, received about $6.00 per hour as a contribution to a mandatory insurance benefit plan. The ARB affirmed the WHD Administrator’s ruling affirming the WHD district office’s (DO) determination that there had been no SCA violations.
Although the DO investigator interpreted the CBA to require the contractor to pay seasonal workers both the base wages and separate fringe benefits, the Assistant District Director permitted the contractor to respond and provide additional information, and was convinced that the CBA should be interpreted in light of the parties’ historical practice under prior CBAs, in which seasonal workers’ fringe benefits were included in the labor rates. In the final ruling, the Administrator found that the CBA was intended to continue the historical practice, as full-time grounds workers had more responsibilities and were expected to have more experience. There was no evidence of an intention to pay seasonal workers more than the full-time workers.
The central issue of the case was whether the Administrator reasonably interpreted the CBA to memorialize the parties’ past practices of paying fringe benefits to seasonable workers within the scheduled rate of pay rather than making direct contributions. During the appeal, the ARB directed briefing on whether the applicable part of the CBA was ambiguous, because unclear provisions must be interpreted based on the intent of the parties to the CBA. The ARB agreed with the Administrator that the relevant part of the CBA was ambiguous. The ARB thus found that the Administrator “did not err in considering extrinsic evidence, including past historical practices, to determine parties’ intent on how much the seasonal workers are owed.” Slip op. at 7. The ARB rejected the Petitioner’s interpretation of the CBA, and stated:
- If the parties intended for temporary employees to be paid contribution amounts in addition to their Schedule A labor rates, the parties would have included such rates in the CBA, as well as lowering the seasonal worker labor rates to be more even or less than the full time employee labor rates. Petitioner provides no persuasive explanation for why the parties would have agreed to pay the seasonal workers substantially more than full time workers who have greater responsibilities and are often more experienced. Though Petitioner suggests the parties negotiated higher rates for seasonal workers because it is more difficult to find quality employees for temporary work, it fails to explain why it did not do so for all of the past CBAs, as well. We therefore affirm the Administrator’s interpretation of the CBA.
Id. at 8.