USDOL/OALJ Reporter: ARB Decision Caselist -- December 2007

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Summary :

CONTRIBUTING CAUSE; INFERENCE BASED ON TEMPORAL PROXIMITY IS NOT NECESSARILY DISPOSITIVE

In Barker v. Ameristar Airways, Inc. , ARB No. 05-058, ALJ No. 2004-AIR-12 (ARB Dec. 31, 2007), the ARB found that the only evidence that connected the Complainant's protected activity and his discharge under a reduction-in-force was temporal proximity, and agreed with the ALJ's ultimate conclusion that the temporal proximity alone was insufficient to establish that the Complainant's protected activity was a contributing cause to the Respondent's decision to discharge him. The ARB wrote:

    Temporal proximity between protected activity and adverse personnel action "normally" will satisfy the burden of making a prima facie showing of knowledge and causation. 29 C.F.R. § 1979.104(b)(2). While a temporal connection between protected activity and an adverse action may support an inference of retaliation, the inference is not necessarily dispositive. Robinson v. Northwest Airlines, Inc. , ARB No. 04-041, ALJ No. 2003-AIR-022, slip op. at 9 (ARB Nov. 30, 2005). For example, if an employer has established one or more legitimate reasons for the adverse action, the temporal inference alone may be insufficient to meet the employee's burden of proof to demonstrate that his protected activity was a contributing factor in the adverse action . Barber v. Planet Airways, Inc ., ARB No. 04-056, ALJ No. 2002-AIR-019, slip op. at 6-7 (ARB Apr. 28, 2006).

PRETEXT; ONCE COMPLAINANT ESTABLISHES THAT PROTECTED ACTIVITY WAS A CONTRIBUTING FACTOR TO THE ADVERSE ACTION, THE RESPONDENT'S BURDEN IS TO ARTICULATE A LEGITIMATE NON-DISCRIMINATORY REASON; THE CLEAR AND CONVINCING EVIDENCE BURDEN ONLY ARISES IF THE COMPLAINANT ESTABLISHES DISCRIMINATION BY A PREPONDERANCE OF THE EVIDENCE

In Barker v. Ameristar Airways, Inc. , ARB No. 05-058, ALJ No. 2004-AIR-12 (ARB Dec. 31, 2007), the ALJ made an analytical error regarding pretext under the whistleblower provision of AIR21 when she merged the Respondent's burden of producing a legitimate non-discriminatory reason for its adverse action with its later burden of proving by clear and convincing evidence that it would have taken the adverse action absent protected activity. Rather, once a complainant establishes that protected activity was a contributing factor to the adverse action, the respondent's burden is to articulate a legitimate non-discriminatory reason. The burden then shifts back to the complainant to establish that the articulated reason was pretext. The Respondent's clear and convincing evidence burden to show that it would have taken the same adverse action even in the absence of the complainant's protected activity arises only once the complainant establishes discrimination by a preponderance of the evidence.

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Summary :

[STAA Digest V A 3 e]
PROTECTED ACTIVITY; COMPLAINT CLAUSE; COMPLAINANT MUST ESTABLISH THAT HE HAD A REASONABLE BELIEF REGARDING THE EXISTENCE OF A SAFETY VIOLATION

In Bethea v. Wallace Trucking Co. , ARB No. 07-057, ALJ No. 2006-STA-23 (ARB Dec. 31, 2007), the ARB found that substantial evidence supported the ALJ's finding that the Complainant had not had a reasonable belief that an STAA violation had occurred when he made an hours-of-service complaint and a complaint about a fuel leak. In affirming the ALJ, the Board wrote: "For a finding of protected activity under the complaint clause of the STAA, [the Complainant] must at least be acting on a reasonable belief regarding the existence of a safety violation." USDOL/OALJ Reporter at 8 (footnote omitted).

[STAA Digest V B 2 d]
PROTECTED ACTIVITY; COMPLAINT ABOUT SCHEDULING IS NOT PROTECTED ACTIVITY ABSENT IMPLICATION OF HOURS OF SERVICE RULES

In Bethea v. Wallace Trucking Co. , ARB No. 07-057, ALJ No. 2006-STA-23 (ARB Dec. 31, 2007), the ARB noted that voicing concerns about scheduling which did not implicate hours of service rules is not protected activity under the STAA.

[STAA Digest II D 1]
AMENDMENT OF COMPLAINT; POST-HEARING REFUSAL TO WORK COMPLAINT DOES NOT RELATE BACK TO A CLAIM UNDER THE COMPLAINT CLAUSE OF THE STAA

In Bethea v. Wallace Trucking Co. , ARB No. 07-057, ALJ No. 2006-STA-23 (ARB Dec. 31, 2007), the Complainant's complaint had asserted protected activity in the raising of concerns about hours of service violations, a fuel leak, and the filing of a workers' compensation claim. During the hearing, the ALJ concluded that accusations of pressure to falsify were within the scope of the complaint, and therefore a permissible amendment to the complaint. The ALJ found, however, that the Complainant's post-hearing complaints about refusing to work were not within the scope of the original complaint, and were untimely raised. On appeal, the ARB noted that it had ruled that a claim for refusing to work under the STAA does not relate back to a claim under the complaint prong of the STAA, and affirmed the ALJ's finding that the refusal to work accusation was not timely.

[STAA Digest V B 2 a i]
PROTECTED ACTIVITY; FILING OF WORKERS' COMPENSATION CLAIM

In Bethea v. Wallace Trucking Co. , ARB No. 07-057, ALJ No. 2006-STA-23 (ARB Dec. 31, 2007), the ARB affirmed the ALJ's finding that the filing of a workers' compensation claim was not protected activity under the whistleblower provision of the STAA because it is not a complaint related to violation of a motor vehicle safety regulation.

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Summary :

The ARB affirmed the ALJ's finding that the Complainant failed to prove that the Respondent violated the whistleblower provision of the STAA.

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Summary :

[Nuclear and Environmental Digest XVII D 2]
SETTLEMENTS; WPCA CASE MAY BE SETTLED WITHOUT DOL APPROVAL OF SETTLEMENT AGREEMENT

In Hager v. Noveon Hilton-Davis, Inc. , ARB No. 05-145, ALJ No. 2004-WPC-4 (ARB Dec. 31, 2007), the parties notified the ARB that they had reached a private settlement and jointly sought dismissal of the complaint and the appeal. The ARB dismissed the complaint and appeal with prejudice under FRCP 41(a)(1)(ii), noting that unlike the whistleblower provisions of the CAA, SDWA, and TSCA, Secretarial approval of a settlement is not required under the the WPCA.

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Summary :

[STAA Whistleblower Digest V B 2]
PROTECTED ACTIVITY; MECHANIC WHO REFUSED TO CLEAR VEHICLES FOR SERVICE IS NOT PROTECTED UNDER THE "REFUSAL TO DRIVE" CLAUSE; HOWEVER, THE SAME ACTIVITY MAY BE PROTECTED UNDER THE "MOTOR SAFETY REGULATION" CLAUSE

In Williams v. Capitol Entertainment Services, Inc. , ARB No. 05-137, ALJ No. 2005-STA-27 (ARB Dec. 31, 2007), the ALJ erred in concluding that the Complainant engaged in activity protected by 49 U.S.C.A. § 31105(a)(1)(B)(ii), because under that clause a complainant must show that he refused to operate a vehicle, and as a mechanic, the Complainant did not drive or operate any vehicles for the Respondent and therefore his complaints concerning the safety of school buses did not constitute a refusal to drive. The ALJ had characterized the protected activity as a refusal to clear vehicles for service. This was harmless error, however, because the Complainant made internal complaints to his manager concerning the safety of tires and an exhaust system. These complaints related to motor safety regulations regarding the safe operation of a school bus, which were protected activity under 49 U.S.C.A. § 31105(a)(1)(A).

[STAA Whistleblower Digest V B 1 c ii]
PROTECTED ACTIVITY; REQUESTS FOR ADDITIONAL MATERIALS TO COMPLETE REPAIR OF VEHICLES WAS NOT PROTECTED ACTIVITY WHERE SUCH REQUESTS WERE MERELY PART OF THE ORDINARY COURSE OF BUSINESS

In Williams v. Capitol Entertainment Services, Inc. , ARB No. 05-137, ALJ No. 2005-STA-27 (ARB Dec. 31, 2007), the ARB affirmed the ALJ's finding that the Complainant's concerns about equipment and inventory were not protected activity because they did not directly impact safety because the Respondent made arrangements with other service providers to make repairs outside the ability of its shop. The ARB found that Complainant's requests were merely for additional materials to complete the daily repair of vehicles in the ordinary course of business. The Complainant also complained about inadequate items available for necessary repairs. The ARB found, however, that the Respondent acquired the majority of its parts from outside vendors, and the Complainant was required, in completing his job requirements, to request inventory from the Respondent on a regular basis.

[STAA Whistleblower Digest IV A 2 a ]
CAUSATION; ALL INSTANCES OF ALLEGED PROTECTED ACTIVITY MUST BE ASSESSED IN ORDER TO PROPERLY EVALUATE WHETHER THEY CONTRIBUTED TO THE ADVERSE EMPLOYMENT ACTION

In Williams v. Capitol Entertainment Services, Inc. , ARB No. 05-137, ALJ No. 2005-STA-27 (ARB Dec. 31, 2007), the ARB remanded the case for additional proceedings where the ALJ had not addressed whether the Complainant's complaints concerning the lack of, and subsequently the improper use of, "defect logs" were protected activities under STAA. The ARB found that the "ALJ's evaluation of causation is not complete since the effect of this possible protected activity was not assessed. To properly evaluate whether protected activity contributed to CES's decision to terminate Williams's employment, all instances of protected activity must be thoroughly assessed."

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Summary :

Reissuance of an order approving a settlement originally issued on Oct. 31, 2007. The original order was missing a signature.

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Summary :

The ARB affirmed the ALJ's recommendation to grant the Complainant's request to withdraw his objections to the OSHA findings.

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Summary :

SCA DEBARMENT; UNUSUAL CIRCUMSTANCES TEST NOT MET WHERE RESPONDENTS ENGAGED IN CONDUCT THAT WAS "BEYOND NEGLIGENT"

In International Services Inc. , ARB No. 05-136, ALJ No. 2003-SCA-18 (ARB Dec. 21, 2007), the ARB held that the Respondents were properly debarred under the SCA where a preponderance of the evidence demonstrated that the contractor underpaid contract employees the wages and fringe benefits due them. Although not admitting any violation of the SCA, the Respondents had previously entered into a consent decree in 2001 establishing a compliance program. Even after the consent decree, however, the company at one point had underpaid $631,081.07 in wages and fringe benefits to 1,943 contract employees.

Under the SCA, violators are debarred for three years unless they are able to show that "unusual circumstances" exist. The regulations set out a three part test for determining when relief from debarment is appropriate. In the instant case, the ARB affirmed the ALJ's finding that the Respondents failed to pass the first level of the test in that they had engaged in "culpable conduct" given that their conduct was "beyond negligent" in the "outstanding" circumstance of underpaying 1,943 employees well over $600,000, despite specific guidance in the consent decree on how to comply with the SCA.

PERSONAL JURISDICTION; DEFENSE BASED ON FAILURE TO SERVE CORPORATE ENTITY WITH COMPLAINT WAIVED WHERE THE ENTITY ANSWERED THE COMPLAINT AND FULLY PARTICIPATED IN THE ALJ HEARING

In International Services Inc. , ARB No. 05-136, ALJ No. 2003-SCA-18 (ARB Dec. 21, 2007), the Respondents were debarred for underpayment of wages and fringe benefits required by the SCA. The corporate entity named in the matter argued on appeal that DOL lacked personal jurisdiction over it because it had not been served with the complaint. The ARB agreed with the ALJ, however, that the issue of personal jurisdiction had been waived when the corporate entity answered the complaint, filed motions, and fully defended the complaint at the hearing.

DEBARMENT LIABILITY OF PRESIDENT OF HOLDING COMPANY; CONTROL, SUPERVISION OR MANAGEMENT OF CONTRACT; LIABILITY CANNOT BE AVOIDED BY BLAMING SUBORDINATES

In International Services Inc. , ARB No. 05-136, ALJ No. 2003-SCA-18 (ARB Dec. 21, 2007), the Respondent company's president argued on appeal that he was not personally responsible for the SCA violations and therefore should not be subject to debarment. The ALJ had found that the company president was subject to debarment because he was the president and CEO of the holding company that owned the named corporations and exercised significant control over their business operations. The Respondent argued that subordinate officials who had settled their cases with DOL before the hearing and agreed to be debarred were the responsible officials. The ARB reviewed the president's activities -- negotiating government and other contracts, negotiating CBAs, ensuring that contract procedures were being followed, assignment of job responsibilities, management of subordinate officials, hiring of specialized lawyers and public relations firms, representing the Respondent company in the press, and arrangement of financing � and found that he was a party responsible within the meaning of the regulations and therefore subject to debarment. Moreover, under 29 C.F.R. § 4.188(b)(5), he could not avoid debarment by arguing that subordinates were responsible for the SCA violations.

DEBARMENT; ALLEGED RACISM AND SABOTAGE OF GOVERNMENT REPRESENTATIVE WERE NOT AN "UNUSUAL CIRCUMSTANCES" TO PRECLUDE DEBARMENT WHERE SUCH ALLEGATIONS WERE NOT SHOWN TO HAVE CAUSED THE RESPONDENTS TO UNDERPAY THEIR EMPLOYEES UNDER THE SCA

In International Services Inc. , ARB No. 05-136, ALJ No. 2003-SCA-18 (ARB Dec. 21, 2007), the Respondents claimed that "unusual circumstances" existed to preclude debarment for violations of the SCA based on an allegation that a GSA contracting officer's technical representative used racial slurs against the Respondent company's president during the course of the contract performance and had attempted to sabotage the contract. The ARB rejected this claim, finding no relationship between the allegations and the underpayment of employees.

DEBARMENT; CASH FLOW PROBLEM FOUND NOT TO CONSTITUTE AN UNUSUAL CIRCUMSTANCE SUFFICIENT TO PRECLUDE DEBARMENT

In International Services Inc. , ARB No. 05-136, ALJ No. 2003-SCA-18 (ARB Dec. 21, 2007), the Respondents claimed that "unusual circumstances" existed to preclude debarment for violations of the SCA based on GSA's making of late payments, which created a cash flow problem preventing the company from paying wages and fringe benefits. The ARB rejected this argument, finding that it had been addressed in Kleen-Rite Corp. , BSCA No. 92-09, slip op. at 3 (Oct. 13, 1992) (SCA does not permit an employer to wait until being reimbursed by another party before fulfilling its objections to its employees).

DEBARMENT; "DE FACTO" DEBARMENT DOES NOT OPERATE AS A DEFENSE TO OR CREDIT OF FORMAL DEBARMENT

In International Services Inc. , ARB No. 05-136, ALJ No. 2003-SCA-18 (ARB Dec. 21, 2007), the Respondents claimed that the company had been subjected to a de facto debarment once GSA cancelled its service contract and removed the company from the Federal Supply Schedule, and that such a de facto debarment preempted the ARB's authority to formally debar it, or that it should at least operate as a mitigating factor. The ARB rejected this argument on the ground that contractors cannot receive credit against the three year debarment period, and on the ground that debarment is the statutorily required sanction for SCA violators. The adverse effect of debarment on the contractor's business was not a reason for excusing its wrongdoing.

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Summary :

RECONSIDERATION BY THE ARB; AUTHORITY TO RECONSIDER UNDER AIR21

In Powers v. Paper, Allied-Industrial Chemical & Energy Workers Int'l Union (PACE) , ARB No. 04-111, ALJ No. 2004-AIR-19 (ARB Dec. 21, 2007), the ARB held that it has the authority to reconsider its decisions under AIR21. In this regard, the ARB concluded that reconsideration of AIR21 decisions would not adversely affect accomplishment of the purposes and goals of AIR21, and thus AIR21 did not limit the ARB's inherent authority to reconsider.

RECONSIDERATION; MUST BE FILED WITHIN A REASONABLE TIME, WHICH MUST BE WITHIN A SHORT TIME AFTER THE DECISION OR RAISE A RULE 60(b)-TYPE GROUND OR SHOW GOOD CAUSE FOR THE DELAY; 27 DAYS IS NOT A SHORT TIME; BOARD�S CASELAW ON RECONSIDERATION IS ADEQUATE TO ESTABLISH RECONSIDERATION PROCEDURE; LOSS OF SOX JURISDICTION UPON REMOVAL TO FEDERAL COURT DOES NOT NEGATE ARB�S JURISDICTION OVER OTHER WHISTLEBLOWER LAWS RAISED IN THE APPEAL

In Powers v. Paper, Allied-Industrial Chemical & Energy Workers Int'l Union (PACE) , ARB No. 04-111, ALJ No. 2004-AIR-19 (ARB Dec. 21, 2007), the ARB applied its ruling in Henrich v. Ecolab, Inc., ARB No. 05-030, ALJ No. 2004-SOX-51 (ARB May 30, 2007), that a motion for reconsideration must be filed within a "reasonable time." In applying this requirement, the motion must be filed within a "short time" after the decision, or, after a longer period if the petition raises Rule 60(b)-type grounds or showed "good cause" for the delay. In Powers , the Board found that 34-days for the filing of the Complainant's motion for reconsideration was too long to be characterized as a "short time." In a footnote, the Board also suggested that the 27 days from the date that the Complainant alleged she received the Board's decision was also not a short time, but did not reach the issue of whether the time frame begins upon issuance or receipt of the decision.

The Board found that the Complainant did not show good cause for the delay based on the absence of applicable procedures, the Board finding ample caselaw precedent for its "short time" requirement. It also found that it was under no obligation to inform the Complainant about the requirement and that a pro se litigant bears the risk of foregoing expert assistance. The case had been remanded, and the Complainant observed that the ALJ had not issued any orders on remand; but the Board found the ALJ's schedule of communications to be irrelevant.

The Board then reviewed a series of other grounds raised by the Complainant for reconsideration, and found that only one of them raised a Rule 60(b)-type ground warranting a longer period for the filing of a motion to reconsider � namely, that the Complainant had removed her SOX complaint to federal district court prior to the ARB's decision. The Board observed that it was not aware of the filing of the SOX complaint in federal court, but found that the issue of subject matter jurisdiction cannot be waived. The Board then screened the jurisdictional ground for reconsideration to determine whether there existed a reason to reconsider, and found that its assuming that it had jurisdiction over the SOX complaint when it actually did not constituted manifest error. The ARB, however, rejected the Complainant's contention that the entire remand order was void, the ARB finding that it still had jurisdiction over the portions of the complaint raising AIR21 and various environmental whistleblower laws. Accordingly, the Board modified those portions of the remand order that referenced the SOX complaint, and reissued the order.

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Summary :

[Nuclear and Environmental Digest VIII B 2 a]
ARB STANDARD OF REVIEW ON QUESTIONS OF FACT; CASE THAT WAS APPEALED PRIOR TO AUGUST 2007 AMENDMENTS TO PART 24

In Redweik v. Shell Exploration and Production Co , ARB No. 05-052, 2004-SWD-2 (ARB Dec. 21, 2007), at the time that the Complainant appealed the ALJ's decision and the parties filed their briefs with the ARB, the ARB reviewed questions of fact de novo. By the time the ARB rendered its decision, however, the regulation at 29 C.F.R. § 24.110(b) had been amended to provide for a substantial evidence standard of review. See 72 Fed. Reg. 44,956 (Aug. 10, 2007). The Board, however, did not rule on whether it would apply the de novo or substantial evidence standard of review because in the instant case applying either standard lead to the conclusion that the Respondent had not violated the whistleblower provisions of the various environmental laws specified in the complaint.

[Nuclear and Environmental Digest XI C 2 b]
LEGITIMATE NONDISCRIMINATORY REASON FOR TERMINATION; VIOLATIONS OF EXPENSE ACCOUNT RULES

In Redweik v. Shell Exploration and Production Co , ARB No. 05-052, 2004-SWD-2 (ARB Dec. 21, 2007), the Complainant had contended that the Respondent used his violations of expense account rules as a pretext for forcing him to resign in retaliation for protected activity. The ALJ, however, found that the Respondent's investigation into the expense account violations had been very thorough and that the official who made the decision to terminate the Complainant had not blindly accepted the recommendation to terminate. On appeal, the Complainant argued that the ALJ had erred in ignoring evidence that supported a pretext theory. The ARB, however, found that the preponderance of the evidence did not support the Complainant's pretext theory.

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