USDOL/OALJ Reporter: ARB Decision Caselist - November 2013

FAILURE TO PAY CERTIFICATION FEE FOR H-2A APPLICATION IN A TIMELY MANNER; WITHDRAWAL OF APPLICATION AFTER CERTIFICATION DOES NOT OBVIATE THE OBLIGATION TO PAY THE FEE; FAILURE TO TIMELY PAY, HOWEVER, IS NOT AUTOMATICALLY GROUNDS FOR DEBARMENT � 7 FACTOR TEST FOR "SUBSTANTIAL" VIOLATION IS BASED ON OVERALL WEIGHT OF FACTORS FOR OR AGAINST DEBARMENT

In Administrator, Office of Foreign Labor Certification, ETA, USDOL v. Castro Harvesting , ARB No. 13-082, ALJ No. 2013-PED-2 (ARB Nov. 26, 2013), the Administrator of the Office of Foreign Labor Certification, debarred the Employer from participating in the H-2A temporary employment certification program for its failure to timely pay a certification fee. The Employer had filed an application requesting certification for 99 temporary agricultural (H-2A) workers. The Office of Foreign Labor Certification (OFLC) in Chicago granted certification and enclosed a bill for fees relating to the approval. The bill informed the Employer that "[n]on-payment or untimely payment may be considered a substantial violation subject to debarment procedures under 20 CFR 655.182." USDOL/OALJ Reporter at 3 (quoting the OFLC bill). The certification had been granted almost two weeks after the first day that workers were needed, and one week after the certification the Employer requested withdrawal of its H-2A application. The OFLC granted the withdrawal, but reminded the Employer that it was "still obligated to comply with the terms and conditions of employment contained in the Application for Temporary Employment Certification with respect to workers recruited in connection with that application." USDOL/OALJ Reporter at 3 (quoting the OFLC order granting withdrawal). Several weeks later, having received no payment for the certification fee, the Administrator issued a Notice of Debarment to the Employer. After some confusion about whether the Employer timely replied to the debarment notice, the Administrator considered two emails that had been sent by the Employer's representative, one asking that the debarment notice be amended because the application had been withdrawn, and the second asking whether an overnight payment would take care of the debarment. The Administrator held that "the fee must be paid regardless of any post-determination to withdraw the certified" application, and that the Employer was still obligated to pay the fee within 30 days from the date of certification. USDOL/OALJ Reporter at 3 (quoting the Administrator's final determination). Accordingly, the Administrator declined to reverse the debarment decision. The Employer then remitted a check to the OFLC, and the same day requested an ALJ hearing.

The ALJ issued a decision granting the Administrator's motion for summary decision. The ALJ found that the Employer's payment of the certification fee for its application was untimely under 20 C.F.R. § 655.163(b), which requires payment within 30 days of certification. The ALJ determined that the withdrawal of the application after certification did not eliminate the obligation to pay the fee, and that because the fee is non-refundable under 20 C.F.R. § 655.163, the Employer was not entitled to a refund of the fee. The ALJ found that the failure to pay the fee timely constituted a substantial violation of its certification and, therefore, the Employer should be debarred pursuant to 8 U.S.C.A. § 1188(b)(2) and 20 C.F.R. § 655.182(e).

On appeal, the ARB affirmed the ALJ's determination that the Employer was required to pay a certification fee and that the Employer's payment was untimely and constituted a violation of the INA. The ARB, however, reversed the ALJ's determination that the Employer's late payment constituted a substantial violation. The ARB therefore reversed the debarment order.

The ARB noted that the Immigration and Nationality Act provides that "[t]he Secretary of Labor may require by regulation, as a condition of issuing the certification, the payment of a fee to recover the reasonable costs of processing applications for certification." USDOL/OALJ Reporter at 6, quoting 8 U.S.C.A. § 1188(a)(2) (emphasis added by the ARB). The Department's regulation at 20 C.F.R. § 655.163 provides:

A determination . . . to grant an Application for Temporary Employment Certification . . . will include a bill for the required certification fees. Each employer of H-2A workers under the Application . . . must pay in a timely manner a non-refundable fee upon issuance of the certification granting the Application.

The ARB noted that this regulation further provides that such fees must be received "no more than 30 days after the date of the certification" and that "non-payment or untimely payment may be considered a substantial violation subject to the procedures in § 655.182." USDOL/OALJ Reporter at 7, quoting 20 C.F.R. § 655.163(b).

The Employer argued that upon withdrawal of the application it was no longer obligated to pay the fee, and that it was entitled to a refund of the fee. The ARB, however, found that the obligation to pay the fee becomes effective upon issuance of the certification, and that the certification fee is non-refundable. In the instant case, the Employer did not withdraw the application until after the certification had been granted, and did not pay the fee within the required 30 days. Thus, the remaining question was whether the untimely payment was a "substantial violation" under 20 C.F.R. § 655.182(e).

The ARB noted that the INA includes a mandatory prohibition on certifications for H-2A employers who substantially violated a material term or condition of the labor certification with respect to the employment of domestic or nonimmigrant workers during the previous 2-year period. 8 U.S.C.A. § 1188(b)(2)(A). This mandatory prohibition is implemented through the debarment process set forth at 20 C.F.R. § 655.182. Specifically, the Administrator may debar an employer if the Administrator finds that the employer "substantially violated a material term or condition of its temporary labor certification, with respect to H-2A workers, workers in corresponding employment, or U.S. workers improperly rejected for employment, or improperly laid off or displaced." USDOL/OALJ Reporter at 9, quoting 20 C.F.R. § 655.182(a). To determine whether a violation is "so substantial" as to merit debarment, 20 C.F.R. § 655.182(e) lists seven non-exclusive factors that the Administrator "may consider." Citing the regulatory history, the ARB stated:

   In weighing these seven non-exclusive factors, the Administrator must keep in mind that the ultimate question is whether the factors taken as a whole demonstrate the violation is so substantial that it "merits debarment," an obviously severe penalty. Nothing in the regulations indicates that each individual factor considered necessarily weighs the same as every other factor in every case. Nor do the regulations suggest that "substantial violation" can be determined solely by mathematically tallying the factors for and against debarment. Instead, the statute and regulations implicitly allow for flexibility to determine the question of "substantial factor." After assessing all the factors and fairly assessing the weight of each factor, the overall weight of the factors supporting debarment must outweigh the overall weight of the factors against debarment.

USDOL/OALJ Reporter at 10 (footnote omitted). In the instant case, the ARB found that the record contained insufficient evidence as a matter of law to support debarment or to remand the matter on this issue. The violation was based on a mistaken belief that the certification fee could be avoided by withdrawing an application shortly after issuance of a certification, and although the violation was a serious one, in this particular case fell "far below the gravity of many other potential violations that threaten the health, safety, and welfare of domestic and non-immigrant workers." USDOL/OALJ Reporter at 14. The ARB found it significant that no harm was caused to domestic or non-immigrant workers, and that there was no evidence supporting debarment except the current violation and one earlier violation on which the evidence was debatable. The ARB stated that "To allow a debarment on this basis would essentially eliminate the meaning of 'substantial violation� as the regulations define that term. We do not suggest that a late payment of a certification fee can never support debarment; only that it does not under the undisputed facts of this case." USDOL/OALJ Reporter at 14.

BACK PAY LIABILITY; AFTER-ACQUIRED EVIDENCE; ARB ADOPTS "CLEAR AND CONVINCING EVIDENCE" STANDARD IN DETERMINING WHETHER THE RESPONDENT WOULD HAVE FIRED THE COMPLAINANT BASED ON THE AFTER-ACQUIRED EVIDENCE

In Clemmons v. Ameristar Airways, Inc. , ARB No. 12-105, ALJ No. 2004-AIR-11 (ARB Nov. 25, 2013), the Fifth Circuit Court of Appeals had affirmed the ARB's decision on the merits finding that the Respondent violated the whistleblower provision of AIR21, but remanded for determination of the proper amount of the back pay award in light of after-acquired evidence potentially showing that the Complainant may have been discharged for wrongdoing. Specifically, the Complainant � who was the Respondent's Director of Operations -- had sent an email to the Respondent's pilots voicing complaints about management, mocking the Vice President of Operations, stating that he intended to leave the company soon, and offering to support any pilots who wished to quit the company. The Complainant conceded that the email was insubordinate, unprofessional and grounds for termination; however, the Respondent had not been aware of the email until two months after the Complainant's termination from employment.

On remand, the ALJ applied a standard suggested by the ARB in its remand order requiring the Respondent to show that it would have fired the Complainant because of the after-acquired email under the AIR21 "clear and convincing evidence" standard. The ALJ found that the Respondent had not met that standard.

On appeal, the Respondent argued that the ALJ erred in (1) applying the clear-and-convincing burden of proof, (2) ignoring undisputed, significant, material facts, and (3) subverting the principles of the after-acquired evidence doctrine.

The ARB affirmed the ALJ's use of the clear-and-convincing burden of proof, finding that it was the express standard set forth in AIR21 governing whether a complainant is entitled to relief, 49 U.S.C.A. § 42121(b)(2)(B)(iv), and that even if AIR21 was found to be silent on the question, the purposes and policies underlying AIR21's whistleblower protection provision would lead to the same result.

The ARB further found that substantial evidence supported the ALJ's finding that the Respondent failed to establish that it would have fired the Complainant based on the email. The Respondent failed to offer any additional proof beyond the content of the email to establish that it would have first the Complainant based solely on the email. A bald assertion based on the "context, substance, and intent" of the email did not suffice. Moreover, substantial evidence supported the ALJ's conclusion that the Respondent made shifting and contradictory statements regarding the reason for the discharge. In a footnote, the ARB stated even if the preponderance-of-the-evidence standard applied, the Respondent failed to meet that lesser standard.

In regard to the Respondent's argument that the ALJ's decision subverts the fundamental principle of the after-acquired evidence doctrine -- that an employee's wrongdoing must be taken into account "lest the employer's legitimate concerns be ignored" -- the ARB found that the Respondent's characterization of the Complainant's email as "unpardonable wrongdoing" and "perhaps the most disloyal and destructive e-mail in the annuals of American business" was a hyperbolic description that itself did not establish that the Respondent would have fired the Complainant solely on the basis of the email. USDOL/OALJ Reporter at 10 (quoting the Respondent's appellate brief). The ARB quoted the Supreme Court for the proposition that "proving that the same decision would have been justified . . . is not the same as proving that the same decision would have been made." Price Waterhouse v. Hopkins , 490 U.S. 228, 252 (1982). The ARB further noted that the Complainant had been prompted to send the email based on the actions of superior officers, one of whom had adopted a policy that "had pilots flying excess hours with unsafe aircraft that needed maintenance and had engaged in non-authorized common carriage on 112 separate occasions, all in violation of Federal Aviation Administration (FAA) regulations." USDOL/OALJ Reporter at 11 (quoting the ALJ's Feb. 20, 2008 decision).

[Nuclear and Environmental Whistleblower Digest III A 6]
FAILURE OF RESPONDENT TO POST SECTION 24.102(d)(1) NOTICE TOLLS FILING DATE ONLY UP UNTIL COMPLAINANT IS SHOWN TO HAVE OBTAINED KNOWLEDGE OF THE PROVISIONS OF THE NOTICE

In Friedman v. Columbia University , ARB No. 12-089, ALJ No. 2012-ERA-8 (ARB Nov. 25, 2013), the Complainant was notified that his job was to be eliminated on a date certain. When that date arrived, the Complainant's job was in fact eliminated. About 1 � months later, the Complainant's attorney wrote a letter to the Respondent pursuing a severance agreement acknowledging therein that the Complainant's whistleblower rights were subject to a 180-day filing limitation. The Complainant did not file his ERA whistleblower complaint with OSHA until more than a year after both the date of notification of the elimination of the job and the actual elimination date. The Respondent, however, had failed to post the whistleblower provisions of the ERA explaining the provisions of the Act and its implementing regulations, including the filing deadline for filing an ERA whistleblower complaint as required under 29 C.F.R. § 24.102(d)(1). Pursuant to 29 C.F.R. § 24.102(d)(2), if the required notice has not been posted, the deadline for filing an ERA whistleblower complaint within 180 days of an alleged violation will be "inoperative, unless the respondent establishes that the complainant had knowledge of the material provisions of the notice," whereby the 180 days will run from the date "that the complainant later obtained knowledge of the provisions of the notice." In the instant case, the ARB found that (assuming the Complainant was unaware of the ERA limitations period) section 24.102(d)(2) tolled the limitations period for filing an ERA whistleblower complaint only until the date that the Complainant's attorney wrote the letter to the Respondent pursuing the severance agreement acknowledging knowledge of the ERA limitations period. Because the complaint was filed more than 180-days after the Complainant's attorney acknowledged the deadline, the regulatory tolling did not save the timeliness of the claim.

Approval of settlement agreement.

[STAA Digest X A 3]
STAA SETTLEMENT; REVIEW AND APPROVAL BY THE ARB

In Uhley v. William F. Braun Milk Hauling, Inc. , ARB No. 12-082, ALJ No. 2011-STA-33 (ARB Nov. 22, 2013), the parties cross-appealed the ALJ's decision to the ARB. The Complainant's appeal was dismissed upon notice to the ARB withdrawing the appeal. Later, the ARB issued an order directing the Respondents to show cause why their appeal should not be dismissed for failure to file an opening brief. The Respondents replied that they had previously requested withdrawal of their petition for review and dismissal of their appeal based on settlement of the underlying claim. The ARB granted the motion to dismiss, writing:

   Based on the parties� respective and undisputed representations that this case has been settled, and because no party objects to dismissal and neither party contests the settlement, we will grant Respondents� motion requesting dismissal. We do so noting, however, that dismissal of this appeal is not to be interpreted as approval of the settlement reached by the parties nor do we otherwise condone the failure by both parties to submit the settlement to the Administrative Review Board for review and approval prior to respectively seeking dismissal.

USDOL/OALJ Reporter at 2 (footnote omitted). In a footnote, the ARB observed that adjudicatory settlements may be settled "if the participating parties agree to a settlement and such settlement is approved by the Administrative Review Board . . . or the ALJ." 29 C.F.R. § 1978.111(d)(2). The ARB stated that "Because the parties have not provided the Board with a copy of the settlement, the Board did not have the opportunity to determine whether the parties� settlement agreement constituted a fair, adequate, and reasonable settlement of Uhley's STAA complaint." USDOL/OALJ Reporter at n.2.

[Editor's note: The ARB vacated its Nov. 21, 2013 Decision and Order in this matter; an Amended Final Decision and Order was issued on December 17, 2013. See Hoffman v. Nextera Energy, Inc. , ARB No. 12-062, ALJ No. 2010-ERA-11 (ARB Dec. 17, 2013).].

[Nuclear & Environmental Whistleblower Digest XII A]
PROTECTED ACTIVITY; UNDER THE ERA WHISTLEBLOWER PROVISION, PROTECTED ACTIVITY MUST RELATE TO NUCLEAR SAFETY "DEFINITIVELY AND SPECIFICALLY"

In Hoffman v. NextEra Energy, Inc. , ARB No. 12-062, ALJ No. 2010-ERA-11 (ARB Nov. 21, 2013), the ALJ found that a number of the Complainant's alleged protected activities were not protected activities under the ERA whistleblower provision because they did not specifically and definitively implicate nuclear safety, but merely constituted non-nuclear safety related suggestions or inquiries, or otherwise did not identify actions leading to discrimination. The ARB affirmed the ALJ's finding, as it had previously held that protected activity under the ERA "must relate to nuclear safety �definitively and specifically.�" USDOL/OALJ Reporter at 7, quoting Vinnett v. Mitsubishi Power Sys. , ARB No. 08-104, ALJ No. 2006-ERA-29, slip op. at 6 (ARB July 27, 2010). See also Sylvester v. Parexel Int�l, LLC , ARB No. 07-123, ALJ Nos. 2007-SOX-39, -42, slip op. at 17. (ARB May 25, 2011).

[Nuclear and Environmental Digest XII C 4]
PROTECTED ACTIVITY; RESIGNATION TO PROTEST TIMING OF RESTART OF NUCLEAR REACTORS WAS NOT PROTECTED ACTIVITY WHERE IT WAS NOT OBJECTIVELY REASONABLE TO BELIEVE THAT THE RESPONDENT WOULD RESTART THE REACTORS SAFELY, AND WHERE OTHER EMPLOYEES BELIEVED THAT THE RESTART TIMING WAS ONLY A GOAL RATHER THAN AN ORDER TO RESTART

In Hoffman v. NextEra Energy, Inc. , ARB No. 12-062, ALJ No. 2010-ERA-11 (ARB Nov. 21, 2013), the Complainant was the assistant operations manager at a nuclear power plant. Following an automatic shutdown of two reactors due to an under-voltage disruption in the electrical grid outside the plant, the plant's general manager set a goal of restarting the reactors within 12 hours. The Complainant told the site vice president that 12 hours would not be sufficient, but the vice president replied that 12 hours would be the target. At a shift change, the Complainant went home. He told several people that he was considering quitting because of being bypassed and ignored, and because he thought a restart in 12 hours would be unsafe. The Complainant emailed a resignation prior to the start of the night shift. After the Complainant had gone home but prior to the email resignation, however, the Respondent had changed the restart goal to 24 hours. The Complainant asserted before the ALJ that the resignation was protected activity. The ALJ found that the resignation was not protected activity because it was not objectively reasonable for the Complainant to believe that the Respondent would begin the restart process in 12 hours unsafely and in violation of the ERA. The ALJ explained that a restart required many people to implement it, and an unsafe restart was unlikely especially given NRC and Institute of Nuclear Power Operations oversight; other employees present during the restart operations with similar experience to the Complainant's did not consider the 12 hour directive as an order to restart but only a goal; and the Complainant did not ascertain prior to emailing his resignation whether the situation at the plant continued to justify a work refusal. The ARB found that substantial evidence supported the ALJ's finding.

[Nuclear and Environmental Whistleblower Digest XII C 9]
PROTECTED ACTIVITY; RESIGNATION TO PROTEST TIMING OF RESTART OF NUCLEAR REACTORS LOST PROTECTION UNDER THE ERA WHISTLEBLOWER PROVISION WHERE COMPLAINANT DENIED RESPONDENT OPPORTUNITY TO SHOW THAT CONDITIONS WERE ACTUALLY SAFE

In Hoffman v. NextEra Energy, Inc. , ARB No. 12-062, ALJ No. 2010-ERA-11 (ARB Nov. 21, 2013), the Complainant was the assistant operations manager at a nuclear power plant. Following an automatic shutdown of two reactors due to an under-voltage disruption in the electrical grid outside the plant, the plant's general manager set a goal of restarting the reactors within 12 hours. The Complainant told the site vice president that 12 hours would not be sufficient, but the vice president replied that 12 hours would be the target. At a shift change, the Complainant went home. He told several people that he was considering quitting because of being bypassed and ignored, and because he thought a restart in 12 hours would be unsafe. The Complainant emailed a resignation prior to the start of the night shift. After the Complainant had gone home but prior to the email resignation, however, the Respondent had changed the restart goal to 24 hours. The Complainant asserted before the ALJ that the resignation was protected activity. The ALJ found that the found that the resignation was not protected activity because it was not objectively reasonable, a finding affirmed by the ARB. In addition, the ALJ found that even if the resignation was objectively reasonable, it lost protection because the Complainant "denied his employer the opportunity to provide an explanation and show that conditions were safe when he refused to talk to them to allow them to address his concerns and offer a satisfactory response." USDOL/OALJ Reporter at 9. The ARB found that substantial evidence supporting the ALJ's alternative finding, stating that if the Complainant "had inquired as to whether FPL was going to actually restart in 12 hours, he would have learned that they were not going to do so." USDOL/OALJ Reporter at 10.

[Nuclear and Environmental Whistleblower Digest XIII B 6]
ADVERSE ACTION; COMPLAINANT DID NOT ESTABLISH THAT HIS RESIGNATION IN PROTEST OF THE TIMING A REACTOR RESTART WAS A CONSTRUCTIVE DISCHARGE WHERE IT WAS NOT REASONABLE TO BELIEVE THAT RESPONDENT WOULD HAVE RESTARTED THE REACTOR IN A DANGEROUS MANNER

In Hoffman v. NextEra Energy, Inc. , ARB No. 12-062, ALJ No. 2010-ERA-11 (ARB Nov. 21, 2013), the Complainant was the assistant operations manager at a nuclear power plant. Following an automatic shutdown of two reactors due to an under-voltage disruption in the electrical grid outside the plant, the plant's general manager set a goal of restarting the reactors within 12 hours. The Complainant told the site vice president that 12 hours would not be sufficient, to which the vice president replied that 12 hours would be the target. At a shift change, the Complainant went home. He told several people that he was considering quitting because of being bypassed and ignored, and because he thought a restart in 12 hours would be unsafe. The Complainant emailed a resignation prior to the start of the night shift. After the Complainant had gone home but prior to the email resignation, however, the Respondent had changed the restart goal to 24 hours. The Complainant asserted that the resignation was a constructive discharge. The ARB found that substantial evidence supported the ALJ's finding that the Complainant was not constructively discharged. Several other employees did not view the 12-hour time as an order but only a goal; no one person, including the plant's general manager, had the authority to order the restart of the nuclear reactor; the Complainant had not been required to do anything improper because of the stated 12-hour goal before he left the plant at the shift change; many people at the plant were responsible for the restart, and none of these similarly situated individuals felt forced to resign. The ARB thus agreed with the ALJ "that it would not be reasonable to believe that all of the people responsible for a restart would collude to restart in a dangerous manner, under NRC and INPO oversight, no less." USDOL/OALJ Reporter at 10-11. Finally, the ARB also noted that the Complainant had other means available to object to the 12-hour restart without a threat of being terminated or charged with insubordination, including confidential complaints to the NRC representative or directly to the NRC.

[Nuclear and Environmental Digest XI A 2 a]
CAUSATION; PROTECTED ACTIVITY FOUND NOT TO BE CONTRIBUTING FACTOR IN THE NON-PAYMENT OF A BONUS WHERE THE RECORD ESTABLISHED THAT THE NON-PAYMENT WAS BASED ON A CONSISTENTLY APPLIED, NON-PRETEXTUAL COMPANY POLICY

In Hoffman v. NextEra Energy, Inc. , ARB No. 12-062, ALJ No. 2010-ERA-11 (ARB Nov. 21, 2013), the Complainant resigned in protest over the timing of a nuclear reactor restart. The Respondent's HR department ordered removal of the Complainant's performance bonus payment for the prior year from a subsequent paycheck. The ALJ found that the Complainant's protected activities were not a contributing factor to the non-payment of the bonus because the record established that the Respondent's company policy required that a person be an employee on the distribution date to receive a performance bonus. This policy reflected the circumstance that the bonus partially represented an incentive for future performance. The ALJ reviewed circumstantial evidence associated with animus, pretext, disparate treatment and temporal proximity, but found that the non-payment of the bonus to the Complainant occurred under a consistently applied, non-pretextual company policy that the recipient be an employee on the payment date. The ALJ noted that the temporal proximity was strong, but that it was negated by the intervening event of the Complainant's resignation. On appeal, the Complainant argued that the ALJ erred because "nothing in the statute or regulations allows the proven inference to be rebutted by evidence of poor performance or attendance, or the employer's dissatisfaction with the employee on either." USDOL/OALJ Reporter at 12, quoting Complaint's brief). The Complainant further argued that the ALJ was required to determine the existence of a prima facie case.

The ARB found that the Complainant's argument reflected a misunderstanding of the applicable law. The ARB stated that "Once a case goes to hearing before an ALJ, proof of contributing factor is required by a preponderance of the evidence; whether there has been a prima facie showing is irrelevant. Thus, a causal link is established if Hoffman showed by a preponderance of the evidence that his protected activity was a �contributing factor� in the adverse action taken against him. �Contributing factor� means any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision." USDOL/OALJ Reporter at 12 (footnotes omitted). The ARB found that substantial evidence supported the ALJ's findings of fact, and that the ALJ correctly applied the applicable law.

[Nuclear & Environmental Whistleblower Digest VIII B 2 b]
NEW EVIDENCE FILED WITH APPELLATE BRIEF; ARB APPLIES 29 C.F.R. § 18.42(c) TO REQUIRE SHOWING THAT THE EVIDENCE WAS NOT READILY AVAILABLE BEFORE THE CLOSE OF THE RECORD BEFORE THE ALJ

In Hoffman v. NextEra Energy, Inc. , ARB No. 12-062, ALJ No. 2010-ERA-11 (ARB Nov. 21, 2013), the ALJ dismissed NextEra as a respondent because the Complainant failed to put forth evidence to establish that it was a covered employer under the ERA. On appeal, the Complainant attached evidence to its appellate brief showing that NextEra has indirect subsidiaries that own and operate nuclear power plants, and asked the ARB to take judicial notice of that evidence. The Respondent argued that the evidence was not in the record before the ALJ, and furthermore, that it did not show that NextEra itself was a covered NRC licensee. The ARB, applying the standard from the OALJ procedural rule at 29 C.F.R. § 18.42(c), found that it would not consider the new evidence as it had not been shown that the evidence was not readily available prior to the close of the record before the ALJ.

ARB STANDARD OF REVIEW IN GRANT DENIAL CHALLENGE UNDER THE OLDER AMERICANS ACT IS WHETHER THE GRANT OFFICER�S DECISION LACKED A RATIONAL BASIS

In The Workplace, Inc. v. USDOL , ARB No. 13-064, ALJ No. 2012-WIA-11 (ARB Nov. 14, 2013), the Complainant challenged the Grant Officer's denial of its application for a grant to administer a job training program under the Senior Community Service Employment Program, authorized by the Older Americans Act. The Complainant argued that the Grant Officer failed to adhere to the process for reviewing applications as set out in the Solicitation for Grant Applications (SGA), causing the Complainant's application to lose points. The Complainant further argued that the Grant Officer's refusal to reduce a minimum scoring floor was arbitrary and lacked a rational basis.

The ARB applied the highly deferential standard of review used in comparable WIA grant programs as announced in United Tribes of Kansas v. U.S. Dep't of Labor , ETA, ARB No. 01- 026, ALJ No. 2000-WIA-3 (ARB Aug. 6, 2001). In that decision, the ARB held that the Grant Officer's decision must be affirmed "unless the party challenging the decision can demonstrate that the decision lacked any rational basis." USDOL/OALJ Reporter at 2, quoting United Tribes of Kansas, supra at 5). In the instant case, the ARB found that the record supported the ALJ's determination that panelists� comments and deductions were grounded in the SGA criteria, and agreed with the ALJ that it was within the Grant Officer's discretion to establish a scoring floor and that it was not abuse of discretion to not lower that floor for the Complainant's application where an acceptable number of applicants had already been selected, and it was consistent with DOL standard practice to deny applicants with low scores.

Approval of settlement agreement.

PROTECTED ACTIVITY; FACT THAT EMPLOYER AGREES WITH SAFETY CONCERN DOES NOT NEGATE THE RAISING OF THE CONCERN AS PROTECTED ACTIVITY

PROTECTED ACTIVITY; FACT THAT EMPLOYER GROUNDS A PLANE BASED ON SAFETY CONCERN RAISED BY COMPLAINANT CONFIRMS THAT RAISING OF COMPLAINT WAS REASONABLE

PROTECTED ACTIVITY; ATTEMPT TO TAPE RECORD MEETING TO DOCUMENT RETALIATION UNDER AIR21 IS PROTECTED ACTIVITY

In Benjamin v. Citationshares Management, LLC , ARB No. 12-029, ALJ No. 2010-AIR-1 (ARB Nov. 5, 2013), the Complainant was a pilot who flew passenger jets for CitationAir's private clients. Prior to the beginning of a tour of duty, he saw the plane he was to fly being serviced and undergoing a Continued Service Inspection. The mechanics confirmed in writing that the plane passed inspection, including the landing gear struts. The next day, the Complainant observed a problem with one of the landing gear struts, and the pilot in command agreed that it should be reported. The Complainant contacted the Flight Duty Officer and was referred to the company's Chief Pilot. The Chief Pilot advised on steps to bring the strut into compliance, but when those were unsuccessful, agreed that the plane must be grounded. The Chief Pilot then instructed the Flight Duty Officer to remove the Complainant from the flight and assign another pilot for the tour of duty. CitationAir then summoned the Complainant for a face-to-face meeting at its headquarters relating to the report of the landing gear strut. The next day the Complainant filed an Aviation Safety Action Program (ASAP) report with CitationAir's Vice President of Safety alleging that indirect pressure was being placed on pilots to keep planes flying, and that this was a dangerous and unsafe situation. The Complainant, expecting to be fired, purchased a pocket-size audio recorder. At the meeting, an HR employee was present, which confirmed for the Complainant that he needed to record the meeting to protect himself. The meeting began with a discussion of the wing strut incident. When the recorder noisily malfunctioned, the Complainant was asked by the Chief Pilot why he was recording the meeting, to which the Complainant stated he was afraid the Chief Pilot would yell at him. The Chief Pilot immediately had the Complainant turn in his company key and ID card, and had him escorted from the building. Several days later the Complainant received a termination letter. CitationAir subsequently denied the Complainant's request to have the termination decision peer reviewed. The Complainant then filed an AIR21 complaint. Following a hearing, the ALJ concluded that the Complainant had not engaged in protected activity. The ARB reversed that finding.

Report of landing gear strut concern -- fact that Respondent agreed with Complainant's safety report did not negate the report as protected activity

The ALJ found that the grounding of the plane was not protected activity because everyone concerned agreed that the plane had to be grounded. The ARB found that the ALJ focused too narrowly on the grounding and overlooked the safety report regarding the landing gear strut. The ARB stated that "The fact that management agrees with an employee's assessment and communication of a safety concern does not alter the status of the communication as protected activity under the Act, but rather is evidence that the employee's disclosure was objectively reasonable." USDOL/OALJ Reporter at 6. The ARB found that this report was protected activity as a matter of law, even if CitationAir agreed with the concern and decided to ground the plane.

Filing of ASAP report -- fact that Respondent grounded the plane based on safety concern raised by Complainant confirmed that Complainant's safety concerns were reasonable

The ALJ did not make an express ruling on whether the ASAP report was protected activity, but the ARB found that it was protected activity as a matter of law because (1) it expressly raised specific safety concerns about the landing gear strut incident, and (2) CitationAir's management agreed that the plane needed to be grounded thereby confirming that the Complainant's safety concerns were reasonable.

Attempting recording of meeting

The ALJ acknowledged that ARB authority holds that under the proper circumstances, the lawful taping of conversations to obtain information about safety-related conversations is protected activity and should not subject an employee to any adverse action. Hoffman v. NetJets Aviation, Inc. , ARB No. 09-021, ALJ No. 2007-AIR-7 (ARB Mar. 24, 2011). The ALJ, however, found that the Complainant's attempted recording in the instant case was not protected activity because "such a �recording was not expected or intended to preserve evidence of a compromise of safety.�" USDOL/OALJ Reporter at 8 (quoting ALJ's decision). The ARB disagreed. The ARB found that protected activity under AIR21 includes an attempt to provide information of retaliation that violates AIR21. Thus, if the Complainant held a reasonable belief of retaliation at the meeting he was summoned to, then his attempted recording of such retaliation was protected activity. The ARB stated: "The ALJ held that �the recording was not expected or intended to preserve evidence of a compromise of safety.� But the ALJ should have also considered whether [the Complainant] had a subjectively and objectively reasonable belief that he would suffer unlawful whistleblower retaliation at the meeting, including discipline, intimidation, threats, or coercion." USDOL/OALJ Reporter at 8 (citation omitted). The ARB found that the ALJ had resolved all the material facts on the issue, leaving only the legal question as to whether the attempted recording in this case was protected activity. The ARB found that it could resolve the legal question without a remand to the ALJ. The record showed that the Complainant held a reasonable belief that the purpose of the meeting was to fire him. Moreover, the Complainant had filed his ASAP complaint alleging that the CitationAir uses indirect pressure to avoid writing up maintenance issues, and reasonably believed that the meeting would be such an instance. Thus, under the facts of the case, the ARB found that the Complainant's attempt to record the "yelling" he expected was a protected attempt to document the unlawful intimidation he raised in his ASAP.

CAUSATION; CONTRIBUTING FACTOR SHOWN WHERE COMPLAINANT�S PROTECTED ACTIVITY WAS INEXTRICABLY INTERTWINED WITH THE UNFAVORABLE EMPLOYMENT ACTION

RESPONDENT�S CLEAR AND CONVINCING EVIDENCE BURDEN OF PROOF; WHERE COMPLAINANT�S PROTECTED ACTIVITY WAS INEXTRICABLY INTERTWINED WITH THE UNFAVORABLE EMPLOYMENT ACTION, IT MAY NOT BE POSSIBLE FOR THE RESPONDENT TO MEET THE CLEAR AND CONVINCING EVIDENCE BURDEN OF PROOF

In Benjamin v. Citationshares Management, LLC , ARB No. 12-029, ALJ No. 2010-AIR-1 (ARB Nov. 5, 2013), the Complainant was a pilot who flew passenger jets for CitationAir's private clients. Prior to the beginning of a tour of duty, he saw the plane he was to fly being serviced and undergoing a Continued Service Inspection. The mechanics confirmed in writing that the plane passed inspection, including the landing gear struts. The next day, the Complainant observed a problem with one of the landing gear struts, and the pilot in command agreed that it should be reported. The Complainant contacted the Flight Duty Officer and was referred to the company's Chief Pilot. The Chief Pilot advised on steps to bring the strut into compliance, but when those were unsuccessful, agreed that the plane must be grounded. The Chief Pilot then instructed the Flight Duty Officer to remove the Complainant from the flight and assign another pilot for the tour of duty. CitationAir then summoned the Complainant for a face-to-face meeting at its headquarters relating to the report of the landing gear strut. The next day the Complainant filed an Aviation Safety Action Program (ASAP) report with CitationAir's Vice President of Safety alleging that indirect pressure was being placed on pilots to keep planes flying, and that this was a dangerous and unsafe situation. The Complainant, expecting to be fired, purchased a pocket-size audio recorder. At the meeting, an HR employee was present, which confirmed for the Complainant that he needed to record the meeting to protect himself. The meeting began with a discussion of the wing strut incident. When the recorder noisily malfunctioned, the Complainant was asked by the Chief Pilot why he was recording the meeting, to which the Complainant stated he was afraid the Chief Pilot would yell at him. The Chief Pilot immediately had the Complainant turn in his company key and ID card, and had him escorted from the building. Several days later the Complainant received a termination letter. CitationAir subsequently denied the Complainant's request to have the termination decision peer reviewed. The Complainant then filed an AIR21 complaint. The ALJ denied the complaint on the ground that the Complainant had not engaged in protected activity.

The ARB reversed, finding that the Complainant engaged in protected activity when he (1) made safety reports about the landing gear struts, (2) submitted the ASAP report, and (3) attempted to record expected retaliatory conduct at the meeting to which he had been summoned.

The ALJ had not specifically reached causation, but the ARB found that the ALJ's finding and the undisputed facts permitted it to find that that each of the protected actions contributed to one or more unfavorable employment actions. There was no dispute that the attempted recording was not only a contributing factor, but the decisive factor in the Respondent's termination of the Complainant's employment and denial of the peer review request.

The ARB found moreover that the reporting of safety concerns and the filing of the ASAP were inextricably intertwined with the Respondent's decision to remove the Complainant from the flight and to call the face-to-face meeting. The ARB reviewed the applicable law:

A contributing factor is "any factor which, alone or in combination with other factors, tends to affect in any way the outcome of the decision." Smith v. Duke Energy Carolinas , LLC, ARB No. 11-003, ALJ No. 2009-ERA-007, slip op. at 4 (ARB June 20, 2012). A complainant need not show that protected activity was the only or most significant reason for the unfavorable personnel action, but rather may prevail by showing that the respondent's "reason, while true, is only one of the reasons for its conduct, another [contributing] factor is the complainant's protected" activity. Hoffman , ARB No. 09-021, slip op. at 4. An employee may prove causation through indirect or circumstantial evidence, which requires that each piece of evidence be examined with all the other evidence to determine if it supports or detracts from the employee's claim that his protected activity was a contributing factor. Bobreski v. J. Givoo Consultants, Inc. , ARB No. 09-057, ALJ No. 2008-ERA-003, slip op. at 13 (ARB June 24, 2011). Circumstantial evidence may include a wide variety of evidence, such as motive, bias, work pressures, past and current relationships of the involved parties, animus, temporal proximity, pretext, shifting explanations, and material changes in employer practices, among other types of evidence.

The ARB has repeatedly found that protected activity and employment actions are inextricably intertwined where the protected activity directly leads to the unfavorable employment action in question or the employment action cannot be explained without discussing the protected activity. In DeFrancesco v. Union R.R. Co. , ARB No. 10-114, ALJ No. 2009-FRS-009, slip op. at 3 (ARB Feb. 29, 2012), the employee's suspension was directly intertwined with his protected activity because the employer investigated the reason for the reported injury and blamed the employee for the injury. In Smith , ARB No. 11-003, slip op. at 4, the employee reported a rule violation and was fired for reporting the violation late. Similarly, in Henderson v. Wheeling & Lake Erie Railway , ARB No. 11-013, ALJ No. 2010-FRS-012, slip op. at 4 (ARB Oct. 26, 2012), the employee was also fired for an allegedly late reporting of an injury as well as for causing the injury. Where protected activity and unfavorable employment actions are inextricably intertwined, causation is established without the need for circumstantial evidence; however, such evidence may certainly bolster the causal relationship.

USDOL/OALJ Reporter at 11-12 (footnote omitted). The ARB reviewed the record in the instant case and found that the meeting had been called based on the very discrepancy that the Complainant had reported, and known to CitationAir only because the Complainant reported it. The ARB found those facts similar to those in Smith and Henderson .

The ARB remanded the case to the ALJ to consider whether the Employer meet its burden to show by clear and convincing evidence that it would have taken the same personnel actions in the absence of protected activity, and if not, to determine damages. The ARB acknowledged that, in view of its finding on the link between the protected activity and the unfavorable employment actions, this may be an impossible burden:

Typically, respondents meet this burden of proof by showing what they would have done if protected activity had never actually occurred. Arguably, that is an impossible burden in this case. Here, Benjamin's report of safety concerns arguably was the single catalyst for the adverse actions taken against him. Consequently, in remanding this case, we leave open the question of whether the statute permits CitationAir to meet its burden under AIR 21 by showing with clear and convincing evidence that it would have taken the same action based solely on non-retaliatory and legitimate reasons, rather than proving what it would have done if protected activity had never occurred.

USDOL/OALJ Reporter at 13.

ARB REVIEW OF SETTLEMENT AGREEMENT; ARB RECONSIDERS DENIAL OF PARTIES' MOTION FOR VACATING OF ALJ'S DECISION AND REMOVAL OF THAT DECISION FROM ANY DOL WEBSITE OR DATABASE AS PREREQUISITE FOR THE SETTLEMENT, AND REMANDS TO THE ALJ FOR FURTHER PROCEEDINGS

In Vannoy v. Celanese Corp. , ARB No. 09-118, ALJ No. 2008-SOX-64 (ARB Nov. 4, 2013), the parties presented a settlement agreement while the case was pending on appeal at the ARB. The settlement included a provision obligating the Department to remove the ALJ's original decision from any website or database affiliated with the Department. The ARB initially approved the settlement, but not the provision about expunging the ALJ's decision. See < Vannoy v. Celanese Corp. , ARB No. 09-118, ALJ No. 2008-SOX-64 (ARB Sept. 27, 2013). The parties moved for reconsideration on the ground that the ARB changed the terms of the settlement in its approval order, and the modification was not acceptable to the parties. On reconsideration, the ARB noted the parties� representation that the presiding ALJ had told them in a conference call that he would vacate his Decision and Order if it would facilitate a settlement. In view of this representation by the parties, the ARB remanded the matter to the ALJ "for further proceedings to facilitate the settlement."