USDOL/OALJ Reporter: ARB Decision Caselist -- November 2008

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Summary :

[STAA Digest XI B 1]
ALJ DISCRETION TO MANAGE CASE; COMPLAINANT'S CONTACT WITH ALJ ONLY AFTER ISSUANCE OF ORDER OF DISMISSAL

In Claypoole v. U.S. Xpress Enterprises, Inc. , ARB No. 08-058, ALJ No. 2008-STA-2 (ARB Nov. 28, 2008), the ALJ had issued a recommended order of dismissal after he had been unable to communicate with the Complainant at known addresses. After the ALJ issued his dismissal, the ALJ received a fax from the Complainant requesting that the hearing be postponed. The ALJ treated the fax as an appeal, and forwarded it to the ARB. The ARB remanded for the ALJ to consider whether the fax had any effect on the dismissal. The Board wrote: "Given the severity of the sanction imposed and the ALJ's discretion to direct the proceedings before him, we believe that it is preferable for the ALJ, in the first instance, to determine, after having the opportunity to consider Claypoole's explanation and request for a postponement, whether she has forfeited the right to continue with the prosecution of her complaint. Accordingly, we REMAND this case to the ALJ so that he can consider the effect, if any, of Claypoole's March 13th letter. We note that in so doing, we do not intend to in any way suggest the outcome of the ALJ's ultimate decision we remand this case only in furtherance and acknowledgement of his broad discretion to manage the hearing process."

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Summary :

Approval of withdrawal of complaint.

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FAILURE TO PROSECUTE; FAILURE TO FILE APPELLATE BRIEF OR RESPOND TO ARB'S ORDER TO SHOW CAUSE

In Administrator Wage and Hour Div. v. Pegasus Consulting Group, Inc. , ARB No. 05-085, ALJ No. 2004-LCA-21 (ARB Nov. 28, 2008), the ARB dismissed the Respondent's appeal where it failed to file an appellate brief or to respond to the ARB order to show cause.

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Summary :

Approval of settlement agreement.

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Summary :

BONA FIDE TERMINATION UNDER LCA REGULATIONS; FAILURE TO REPORT TERMINATION TO DHS AND FAILURE TO TENDER PAYMENT FOR RETURN TRANSPORATION IS CRITICAL ELEMENT OF PROOF SHOWING LACK OF BONA FIDE TERMINATION

In Mao v. Nasser Engineering & Computing Services , ARB No. 06-121, ALJ No. 2005-LCA-36 (ARB Nov. 26, 2008), a case arising under the labor condition application regulations governing DOL's H-1B program, the ARB agreed with the ALJ's finding that the Respondent did not effect a bona fide termination under 20 C.F.R. § 655.731(c)(7)(ii) of the Prosecuting Party's ("the Alien") employment under the INA and its implementing LCA regulations because it did not notify DHS of the termination or tender payment for the Alien's return transportation home. The ARB agreed with the ALJ's finding that the Respondent's failure to report to DHS its termination of the Alien's employment "is the critical element of proof that there was no bona fide termination of the employment relationship that would have relieved Nasser of the liability to pay Mao his full salary." Slip op. at 9, quoting the ALJ's decision. The ARB thus held that the Respondents failed to establish an end to their obligation to pay the Complainant's "actual wage." The ARB rejected the one Respondent's alternative argument that the Complainant was on extended leave at his own choosing, finding that the Complainant was ready and willing to take on new projects, but that the Respondent did not have assignable work and cooperated with the Complainant to perpetuate a false impression of his status vis-�-vis the immigration authorities. The ARB calculated a back pay liability of $66,919.48.

INTEREST ON BACK PAY AWARD

In Mao v. Nasser Engineering & Computing Services , ARB No. 06-121, ALJ No. 2005-LCA-36 (ARB Nov. 26, 2008), the ARB agreed with the ALJ's finding that the Prosecuting Party was entitled to prejudgment compound interest on the back pay award and post-judgment interest from the date of the ALJ's D. & O. until satisfaction in accordance with the procedures to be followed in computing the interest due on back pay awards outlined by the ARB in Doyle v. Hydro Nuclear Servs., ARB Nos. 99-041, 99-042, 00-012, ALJ No. 1989-ERA-022 (May 17, 2000) (case arising under the whistleblower protection provisions of the Energy Reorganization Act).

ALJ'S DISCRETION REGARDING THE ADMISSION OF POST-HEARING EXHIBITS

The ARB found in Mao v. Nasser Engineering & Computing Services , ARB No. 06-121, ALJ No. 2005-LCA-36 (ARB Nov. 26, 2008), that the ALJ had not abused his discretion when he refused to admit into the record proposed exhibits submitted by the Respondents for the first time in their post-hearing brief to the ALJ. The ARB found that the record showed that the Respondents had ample opportunity to present their case and to develop and submit all evidence they deemed relevant.

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Summary :

DISMISSAL FOR CAUSE; FAILURE TO COMPLY WITH ALJ'S DISCOVERY ORDERS

In Matthews v. LaBarge, Inc. , ARB No. 08-038, ALJ No. 2007-SOX-56 (ARB Nov. 26, 2008), the ALJ dismissed the complaint after the Complainant blatantly failed to comply with the ALJ's discovery orders and failed to show cause why sanctions should not be imposed. The ARB found that the ALJ had given the Complainant adequate opportunity to comply with his orders, had given him two opportunities to show cause why he should not impose sanctions, and had warned the Complainant about the consequences of failing to comply with the discovery orders. Affirming the ALJ, the ARB wrote: "'If an ALJ is to have any authority to enforce prehearing orders, and so to deter others from disregarding theses orders, sanctions such as dismissal or default judgments must be available when parties flagrantly fail to comply.' To hold otherwise would render the discovery process meaningless and vitiate an ALJ's duty to conclude cases fairly and expeditiously." Slip op. at 3, quoting Cynthia E. Aiken , BSCA No. 92-06 (July 31, 1992) (footnotes omitted).

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Summary :

Approval of settlement agreement.

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In Anderson v. Robinson Terminal Warehouse Corp. , ARB No. 07-032, ALJ No. 2006-STA-28 (ARB Nov. 21, 2008), the ARB found that substantial evidence supported the ALJ's ruling that the Complainant's performance, not his protected activity, was the reason for his suspension rather than STAA-protected activity.

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DECISION ON WHICH ALJ TO ASSIGN TO DECIDE A REMANDED CASE IS WITHIN THE PURVIEW OF THE CHIEF ALJ AND NOT THE ARB

In William J. Lang Land Clearing, Inc. , ARB Nos. 01-072 and 01-079, ALJ Nos. 1998-DBA 1 through 6 (ARB Nov. 20, 2008), the ALJ had ruled against the Wage and Administrator on all issues except one; the ARB ultimately issued a Final Decision and Order affirming the Administrator's positions on all issues; and the Sixth Circuit on appeal affirmed the ARB. The Acting Administrator then filed a motion for remand to an ALJ for calculation of back wages because the ALJ had not made specific findings regarding the back wages for those violations on which he ruled against the Administrator. The Respondent objected, not to the remand, but to what it characterized as the Administrator's specific request for remand to "any ALJ." The Respondent stated its preference that the remand be to the ALJ who originally heard the case. The ARB found that the Acting Administrator had not asked for remand to "any ALJ" but to "an ALJ," and criticized the Respondent's counsel for failing to contact OALJ to learn that the original ALJ was now retired. Thus, the Acting Administrator's request for remand to "an ALJ" was perfectly appropriate. The ARB wrote: "In any event, while we agree that it would be preferable for the same ALJ to hear the case on remand, and we believe that, generally, the Chief Administrative Law Judge routinely assigns remanded cases to the same ALJs who had originally heard them, the decision whether to assign a case to a particular ALJ on remand, is within the Chief Judge's purview, not the Board's." The ARB granted the motion for remand.

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Summary :

[STAA Digest XII]
JUDICIAL ESTOPPEL; FAILURE OF COMPLAINANT TO DISCLOSE STAA PROCEEDING TO BANKRUPTCY COURT; ESTOPPEL APPLIES TO CLAIM FOR MONETARY DAMAGES, BUT NOT TO CLAIM FOR REINSTATEMENT

In White v. Gresh Transport Inc. , ARB No. 07-035, ALJ No. 2006-STA-048 (ARB Nov. 20, 2008), the ARB affirmed the ALJ's grant of summary decision pursuant to the doctrine of judicial estoppel in regard to any monetary damages that may have resulted from the Complainant's termination from employment in violation of the STAA whistleblower provision, where the Complainant had failed to disclose the STAA case to a bankruptcy court in which he had filed a Chapter 7 bankruptcy petition, even though the STAA complaint was filed after the Complainant had filed his original bankruptcy petition. The ARB, however, remanded for resolution of the Complainant's request for reinstatement based on caselaw indicating that judicial estoppel is not applicable to requests for injunctive relief.

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Summary :

Approval of settlement agreement.

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