USDOL/OALJ Reporter: ARB Decision Caselist - December 2013

CONSENT ORDER; ARB DECLINES TO ADDRESS RESPONDENT'S CONTENTION ON APPEAL THAT ALJ'S REFUSAL TO POSTPONE A HEARING FORCED IT TO NEGOTIATE, WHERE CONSENT ORDER INCLUDED PROVISION EXPLICITLY WAIVING RIGHT CHALLENGE ITS VALIDITY

Where the Respondent in an E-3 nonimmigrant worker Wage and Hour Division enforcement action explicitly waived its right to challenge the validity of a consent order that had been filed with the ALJ, the ARB declined to address the Respondent's contention on appeal that it had been forced to participate in negotiations leading to the consent order because it had been unable to attend the scheduled hearing date, and the ALJ declined to postpone the hearing. Administrator, Wage and Hour Div., USDOL v. S V Technologies, LLC , ARB No. 12-042, ALJ No. 2011-LCA-9 (ARB Dec. 23, 2013).

BONA FIDE TERMINATION OF E-3 WORKER; VERBAL NOTICE TO USCIS OF TERMINATION OF E-3 WORKER'S EMPLOYMENT FOUND INSUFFICIENT TO EFFECT BONA FIDE TERMINATION; WORKER'S CONTINUED TRAINING, NOTICE OF JOB OPPORTUNTIES, AND RESIDENCE IN RESPONDENT GUEST HOUSE, SUPPORTED FINDING THAT EMPLOYMENT RELATIONSHIP CONTINUED BEYOND PURPORTED DISCHARGE

In Administrator, Wage and Hour Div., USDOL v. S V Technologies, LLC , ARB No. 12-042, ALJ No. 2011-LCA-9 (ARB Dec. 23, 2013), an E-3 nonimmigrant worker filed a complaint with the Wage and Hour Division alleging that the Respondent violated the Immigration and Nationality Act by failing to pay wages to which he was entitled. The WHD found in favor of the worker, and the Respondent requested a hearing before an ALJ. E-3 labor condition applications, which involves a program for nationals of the Commonwealth of Australia, are handled under the H-1B LCA regulations.

In the instant case, the Respondent determined that the foreign worker did not have the necessary skills for the job, and informed the worker that he was being discharged and was being asked to leave the country. The Respondent's president called USCIS and verbally informed it that the Respondent had terminated an E-3 employee. USCIS asked for a reference number for the worker, but the Respondent did not provide the number, did not inform USCIS of the name of the worker, and never followed up with USCIS to provide the necessary documentation. The worker stayed in the U.S., continued to participate in the Respondent's training, and continued to receive potential employment projects from the Respondent. The ALJ found on summary decision on undisputed facts that the Respondent failed to effect a bona fide termination of the E-3 worker. On appeal, the ARB affirmed. The Respondent admitted that it had had not given USCIS written notification that it had terminated the worker's employment, that it did not provide USCIS with the worker's name or any other data that would enable USCIS to identify the worker, and that the Respondent's president did not expect the worker's E-3 petition to be cancelled following his call to USCIS. The ARB held that "Verbal notification to USCIS that an unnamed E-3 employee was terminated would not enable USCIS to identify which E-3 petition to cancel and does not therefore meet the requirement contained in 20 C.F.R. § 655.731(c)(7)(ii). Without the bona fide termination, [the Respondent] owes [the E-3 worker] wages during [his] employment in productive status." USDOL/OALJ Reporter at 7. The ARB also found that the undisputed facts of record showed that the E-3 worker's employment relationship with the Respondent continued after he was allegedly discharged. The worker continued to be emailed concerning job opportunities and sample resumes after his alleged termination; he continued to receive training form the Respondent; and he continued to live rent-free in the Respondent's guest home.

Pursuant to remand instructions from the Tenth Circuit in Lockheed Martin Corp. v. Administrative Review Board , No. 11-9524, slip op. at 33 (10th Cir. June 4, 2013), the ARB remanded this Sarbanes-Oxley Act, Section 806 whistleblower case to the ALJ to quantify back pay and medical expenses awards, to resolve attorney's fees issues, and possibly to reexamine the question of reinstatement.

Approval of settlement agreement.

ARB REVIEW OF EXPIRED CONTRACT UNDER THE SERVICE CONTRACT ACT; ARB MAY DISMISS APPEAL WHERE NO PRACTICAL RELIEF IS AVAILABLE, BUT ALTERNATIVELY MAY CHOSE TO DECIDE APPEAL IF IT PRESENTS SIGNIFICANT ISSUES OF GENERAL APPLICABILITY

In National Aeronautics and Space Administration (NASA) , ARB No. 12-027, ALJ No. 2011-CBV-3 (ARB Dec. 19, 2013), NASA sought a variance from the collectively bargained wages for custodial services at the Johnson Space Center. The contract had expired by the time the ARB issued its decision, but the ARB went ahead and decided the appeal. The ARB explained:

� The ARB has held that once the contract at issue expired, the case becomes moot because the relief accorded under the SCA is prospective only. See 29 C.F.R. § 4.163(c) ("variance decisions do not have application retroactive to the commencement of the contract."); In re Ceres Gulf Inc., ARB No. 96-192, ALJ Nos. 1993-CBV-001, 1995-CBV-001; slip op. at 2 (ARB Jan. 6, 1998). In this case, NASA's contract with INC expired on February 28, 2013, at the end of the second, one-year option. The ARB has dismissed appeals under the SCA where no practical relief is available because review would be nothing more than an advisory opinion. In re Am-Gard, Inc., ARB Nos. 06-049, -050; ALJ No. 2006-CBV-001, slip op. at 4 n.14 (ARB July 31, 2008). Nonetheless, we will address the issues NASA raises, which are "significant issue[s] of general applicability." 29 C.F.R. § 8.6 (d).

USDOL/OALJ Reporter at n.2.

SERVICE CONTRACT ACT; VARIANCE FROM COLLECTIVELY BARGAINED WAGE RATE UNDER SUBSTANTIAL VARIANCE EXCEPTION; ALJ IS NOT LIMITED TO ASSESSMENT OF STATEMENT OF WORK, BUT MAY ANALYZE ACTUAL JOB DUTIES AND SKILLS REQUIRED; DATA PURPORTEDLY SUPPORTING VARIANCE FOUND INSUFFICIENT WHERE COMPARABLE COLLECTIVELY-BARGAINED WAGE RATES ARE NOT AVAILABLE FOR LOCALITY

In National Aeronautics and Space Administration (NASA) , ARB No. 12-027, ALJ No. 2011-CBV-3 (ARB Dec. 19, 2013), NASA sought a variance from the collectively bargained wages for custodial services at the Johnson Space Center in a contract between Integrity National Corporation (INC) and the International Association of Machinists and Aerospace Workers, District Lodge 377, Local Lodge 1786. The positions in question were custodian/janitor service worker; custodian/janitor crew leads; recycling specialist; and warehouse clerk. Section 4(c) of the Service Contract Act (SCA), imposes a successorship obligation: where service employees are covered by a collective bargaining agreement (CBA), a successor contractor furnishing substantially the same services at the same location ordinarily will be obligated to pay those employees no less than wages and fringe benefits required by the CBA. The SCA, however, provides for an exception where, after a hearing, it is determined that "wages and fringe benefits under the predecessor contract are substantially at variance with wages and fringe benefits prevailing in the same locality for services of a similar character." 41 U.S.C.A. § 6707(c); 29 C.F.R. § 4.10(a). In the instant case, the ALJ denied NASA's petition for a collective bargaining variance.

On appeal, NASA first argued that that the ALJ erred because its Statement of Work (SOW) specifying the basic required services is the sole basis for comparing similar services in the locality. The ALJ had found that NASA's sole reliance on the SOW ignored significant differences required of custodial personnel at NASA as compared to other known work sites in the locality (such as, security clearances, language proficiency, reading/writing ability, educational requirements and people skills). The ARB held that "contrary to NASA's contention, the Act permits the ALJ to analyze the actual job duties and skills of custodial workers employed at NASA for purposes of determining 'services of a character similar in the locality.' 41 U.S.C.A. § 6707(c)." USDOL/OALJ Reporter at 7 (emphasis as in original). Reviewing the evidence of record, the ARB found that a preponderance of the evidence supported "the ALJ's determination that NASA failed to compare the services of INC custodial workers at the Johnson Space Center with jobs of a similar character in the locality as required by the Act." Id . at 9.

NASA also argued that the ALJ erred in determining that it misapplied the wage measure charts by comparing an average of wage-based rates and surveys. NASA asserted that there is no set statutory or regulatory methodology required to prove substantial variance. The ARB held that the ALJ did not err. The ARB cited Wage and Hour Division All Agency Memorandum (AAM) No. 166, which directs parties seeking a wage variance to include information and analysis concerning the differences between the collectively-bargained rates issued and the rates contained in (1) federal wage board rates and surveys; (2) relevant BLS surveys and comparable SCA wage determinations; (3) other relevant wage data such as what other employers pay for similar services; and (4) other collectively-bargained wages and benefits in the locality. Slip op., quoting AAM No. 166 at 2-3. The ARB noted that the Department recognizes that a party seeking a variance "may not be able to submit complete data at the time the hearing request is made," but the Department expects that this information will be available prior to a decision on the variance request. Slip op., quoting AAM No. 166 at 3. The ARB noted that "Merely providing a statement that data is not available is not sufficient." Slip op., quoting AAM No. 166 at 3. "The request must adequately demonstrate the effort made to obtain or develop such information." Slip op., quoting AAM No. 166 at 3.

In the instant case, NASA witnesses testified that NASA could not obtain any collectively-bargained wage rates in the Houston locality. Moreover, a labor economist expert testified that NASA relied on measures of central tendency to compare wage rates of custodial service employees at the Space Center with the average wage rates of custodial employees in the locality, and that this resulted in a misleading conclusion with respect to assessing a substantial variance. The expert further testified that NASA's evidence compared collectively-bargained wages at NASA with a market that is mostly non-unionized, and collectively-bargained wages are generally higher than non-collectively bargained wages. Accordingly, the ARB held that the preponderance of evidence supported the ALJ's determination that NASA relied on inadequate wage measurement charts.

• Final Decision and Order PDF | HTM
• Erratum (ARB Feb. 13, 2015) PDF

HOSTILE WORK ENVIRONMENT; IN GENERAL, PRE- AND POST-LIMITATIONS PERIOD INCIDENTS COMPRISE THE SAME HOSTILE ENVIRONMENT WHEN THEY INVOLVE THE SAME TYPE OF EMPLOYMENT ACTIONS, OCCUR RELATIVELY FREQUENTLY, AND ARE PERPETRATED BY THE SAME MANAGERS

In Williams v. National Railroad Passenger Corp. , ARB No. 12-068, ALJ No. 2012-FRS-16 (ARB Dec. 19, 2013) (reissued with erratum on Feb. 13, 2015), the ARB affirmed the ALJ's finding that the Complainant did not timely file an FRSA whistleblower complaint for discrete actions that occurred prior to June 2011. The Complainant, however, had referred to incidents in December 2011 concerning which the ALJ did not expressly discuss the legal significance. The ARB determined that in light of the Complainant's pro se status, it would review whether those incidents were either a continuance of alleged hostile environment and/or independent grounds for asserting a whistleblower claim. In December 2011, the Complainant had been asked to assist in performing efficiency tests on one of his crews. The crew failed the tests, and the Complainant was criticized for not following up with the crew after the testing. The Complainant was required to attend several meetings to discuss the failed tests despite having been scheduled to start a vacation.

The ARB stated: "As general guidance, we rely on the Court's reasoning in Morgan that a series of alleged events comprises the same hostile environment when �the pre- and post-limitations period incidents involve the same type of employment actions, occur[] relatively frequently, and [a]re perpetrated by the same managers.'" USDOL/OALJ Reporter at 6-7, quoting Nat'l R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 120 (2002) (omitting a citation to the court below in the Morgan case). In the instant case, the Board held that the December 2011 incidents did not form part of a preceding hostile work environment claim, finding that the alleged criticisms and meetings during a scheduled vacation were materially different from the Complainant's earlier unsuccessful pursuit of promotional opportunities, and that a ten month gap separated the events. Also different were the timing and nature of earlier allegations of retaliation (probation for failing to submit to a drug and alcohol test and violating hours of service laws).

The Board also found the December 2011 incidents were not a legally sufficient basis for an FRSA whistleblower claim. The Board noted that the Complainant did not describe the criticisms as a reprimand, that the Complainant admitted that it is a manager's responsibility to ensure compliance with crew efficiency testing, that the Respondent crew testing was proper, and that it was undisputed that the Complainant's crew failed the test. The ARB stated that "On balance, we find that the general criticism and required meetings do not rise to the level of �discriminatory' conduct needed to form the basis of a FRSA whistleblower complaint, such as discipline, reprimanding, intimidating, threatening, restraining, coercing, or blacklisting. In addition, we also find that Williams failed as a matter of law to present sufficient circumstantial evidence of a causal link between his only protected activity in November 2008 and the December 2011 incidents to raise a genuine issue of material fact on the issue of causation." USDOL/OALJ Reporter at 7 (footnote omitted).

[Note: On February 13, 2015, the ARB issued an erratum to its December 19, 2013 Decision and Order. The ARB stated in the Erratum: "[O]n pages three and seven of the decision, the Board stated that Respondent placed Williams on probation in part 'for failing to submit to a drug and alcohol test.' This was a misstatement of fact. Accordingly, we reissue the decision with the following language to replace the misstatement: 'for failing to administer a random drug and alcohol test to a crew under his management.'"].

Order Vacating ARB's November 21, 2013 Decision and Order. An Amended Final Decision and Order was issued on Dec. 17, 2013, and is casenoted below.

[Nuclear & Environmental Whistleblower Digest XII A]
PROTECTED ACTIVITY; ARB AFFIRMS ALJ DECISION THAT RELIED IN LARGE PART ON PRECEDENT HOLDING THAT UNDER THE ERA WHISTLEBLOWER "ANY-OTHER-ACTION-TO-CARRY-OUT-THE-PURPOSES-OF-THIS-CHAPTER" PROVISION, PROTECTED ACTIVITY MUST RELATE TO NUCLEAR SAFETY "DEFINITIVELY AND SPECIFICALLY"; ARB RECOGNIZED CONCERN ABOUT "DEFINITIVELY AND SPECIFICALLY" STANDARD AS APPLIED TO 42 U.S.C. § 5851(a)(1)(F), BUT RESERVED THE QUESTION FOR ANOTHER DAY AS ANY ALTERNATIVE INTERPRETATION OF SUBSECTION (F) WOULD NOT CHANGE THE RESOLUTION OF THE INSTANT APPEAL

In Hoffman v. NextEra Energy, Inc. , ARB No. 12-062, ALJ No. 2010-ERA-11 (ARB Dec. 17, 2013), the Complainant was the assistant operations manager at a nuclear power plant who argued, inter alia, that he disclosed safety-related staffing inadequacies, maintenance defaults and safety-related equipment maintenance defaults, that constituted protected activity under the ERA. The ALJ found that some of the activities were protected, but not where the discussions about staffing routine issues did not "specifically and definitively" include discussion of nuclear safety. The ARB affirmed the ALJ's finding that eight of the alleged protected activities "were not protected activities 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." USDOL/OALJ Reporter at 7. The ARB found that, clearly, none of the activities fit the five specific categories of activity protected from retaliation, "including notifying one's employer of an alleged violation of the ERA or the Atomic Energy Act (AEA), refusing to engage in activities prohibited under either the ERA or AEA provided the employee has identified the alleged illegality to his or her employer, testifying before Congress or at any Federal or State proceeding regarding any provision of the ERA or the AEA, commencing or causing to be commenced a proceeding under or the enforcement of the ERA or AEA, or testifying (or being about to testify) in any such proceeding. 42 U.S.C.A. § 5851(a)(1)(A)-(D)." Id . The remaining question, therefore was whether the Complainant's activities were "protected under the ERA's catch-all provision that protects an employee who, among other things, assists or participates or is about to assist or participate "in any other action to carry out the purposes of this chapter or the Atomic Energy Act of 1954, as amended.� 42 U.S.C.A. § 5851(a)(1)(F)." Id . at 7-8. The ARB wrote:

The ERA does not define the phrase "any other action to carry out the purposes of this chapter" as set forth in subsection (F). Courts, however, have construed the phrase as requiring, in light of the ERA's overarching purpose of protecting acts implicating nuclear safety, that an employee's actions must implicate safety "definitively and specifically" to constitute whistleblower protected activity under subsection (F). Viewing Hoffman's eight activities detailed above through this lens, we find the ALJ's determination that Hoffman failed to prove that any of these activities constituted ERA-protected activity consistent with this court precedent.

Id . at 8 (footnotes omitted). The panel qualified its discussion, however, with the following note:

This panel recognizes the existence of some concern about the propriety of the "definitively and specifically" requirement that several courts have embraced in interpreting 42 U.S.C.A. § 5851(a)(1)(F). Nevertheless, because any alternative interpretation of subsection (F) that this panel might consider would not change our resolution of the present case, we do not find it necessary to address those concerns at this time. We reserve for a later day and another case the question of whether the "definitively and specifically" requirement for assessing whether an employee has engaged in ERA protected activity under subsection (F) is deserving of reconsideration.

Id . at 8, n.16.

[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 Dec. 17, 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 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 Dec. 17, 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 9.

[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 Dec. 17, 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. 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 Dec. 17, 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 for the prior year. 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. § 18.54(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 Dec. 17, 2013), the ALJ had 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. § 18.54(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.

CLEAR AND CONVINCING EVIDENCE; SUBSTANTIAL EVIDENCE FOUND TO SUPPORT ALJ'S FINDING THAT COMPLAINANT'S PERFORMANCE PROBLEMS AND INSUBORDINATION WERE SOLE CAUSE OF COMPLAINANT'S DISCHARGE

In Zinn v. American Commercial Lines Inc. , ARB No. 13-021, ALJ No. 2009-SOX-25 (ARB Dec. 17, 2013), the ARB affirmed the ALJ's finding that the Respondent established by clear and convincing evidence that it would have discharged the Complainant even absent any protected activity. The Complainant was an attorney for a publicly traded company whose business included contracting with customers to transport industrial products by barges on waterways. The Complainant asserted protected activity when she raised an issue about whether the Respondent's statement on a SEC Form 10-K that it was upholding safety might be a misrepresentation because of a failure to adequately vet or audit a tugboat vendor, and when she raised an issue about whether the appointment of a new general counsel and senior vice-president needed to be reported in an SEC Form 8-K. For purposes of deciding the appeal, the ARB assumed that the Complainant proved that she engaged in protected activity that contributed to adverse action by the Respondent.

The ARB found that the ALJ's clear and convincing evidence finding was based on substantial evidence. The Complainant, who had a history of depression, started experiencing performance problems after her mother's accidental death. The Complainant began taking a prescription drug to prevent and control seizures and to treat panic attacks. This drug had a number of side effects, including slurred speech. The ALJ found that the Complainant's work on projects had been reduced because she requested he reduction and that the Complainant acknowledged that she had not been able to complete projects in a timely fashion. The ALJ found that the Complainant was administered a drug test because she showed signs of being under the influence as defined by the company's drug policy. The ALJ found the Complainant admitted that her reaction to the prescription drug caused people to think she was on drugs or alcohol, and that a company should be concerned when an in-house attorney appears to be confused and has slurred speech. The Complainant's supervisor had not been informed about the prescribed medication. The ALJ found that after a negative drug test, the Complainant's supervisor monitored the Complainant's performance because she had been falling behind, and some of her workload had to be re-assigned. And finally, the ALJ found that the Complainant's termination was due to insubordination directed at the general counsel and failure to complete assigned work for a legal department meeting; the sequence of events relating to this finding was documented through a series of emails.

ALJ SHOULD PERMIT LIBERAL AMENDMENTS TO WHISTLEBLOWER COMPLAINTS; PROBABLY ERROR FOR ALJ TO HAVE DENIED MOTION TO AMEND TO ADD RESPONDENTS IN AIR21 CASE

In Cobb v. FedEx Corporate Services, Inc. , ARB No. 12-052, ALJ No. 2010-AIR-24 (ARB Dec. 13, 2013), the Complainant originally named FedEx Express Corp. in his AIR21 complaint filed with OSHA. The Complainant was employed by a subsidiary, FedEx Corporate Services, Inc. At some point during the investigation, OSHA substituted FedEx Services as the Respondent. Before the ALJ, the Complainant moved to amend the complaint to include FedEx Corp., FedEx Express and FedEx Office as Respondents. The Respondent objected because the Secretary's Findings were only against FedEx Services and no other entities. The ALJ denied the motion to amend, and the Complainant did not appeal that ruling. On appeal, the ARB declined to formally rule on ALJ's ruling on the motion to amend because the Complainant had not appealed it, but wrote:

We note however that we have ruled that ALJs should liberally grant whistleblower complainants leave to amend their complaints. Evans v. U.S. Envtl. Prot. Agency , ARB No. 08-059, ALJ No. 2008-CAA-003, slip op. at 11 (ARB July 31, 2012) (citations omitted). Especially given that Cobb initially named FedEx Corp. as the respondent, the ALJ may have erred in disallowing Cobb to amend his complaint to allege direct liability by FedEx Corp.

USDOL/OALJ Reporter at 4, n.4.

COVERED EMPLOYER; BROAD DEFINITION OF "AIR CARRIER" IS NECESSARY TO GIVE FULL EFFECT TO THE PURPOSE UNDERLYING SECTION 42121; FEDEX CORP. SUBSIDIARY THAT PROVIDED INFORMATION TECHNOLOGY, SUPPLY CHAIN, AND OTHER SERVICES, FOUND TO PROVIDE INDIRECT AIR CARRIER SERVICES, AND THEREFORE WAS AN AIR CARRIER UNDER AIR21

In Cobb v. FedEx Corporate Services, Inc. , ARB No. 12-052, ALJ No. 2010-AIR-24 (ARB Dec. 13, 2013), the Complainant was an employee of FedEx Services, a subsidiary of FedEx Corp. The ALJ found that FedEx Services was not an air carrier because it does not own or operate any aircraft, and was not a contractor of an air carrier covered by AIR21 because it did not conduct "safety-sensitive functions for an air carrier." The ARB found that FedEx Services was an air carrier because, while it does not directly provide air transportation, its services are integral to FedEx's provision of air transportation, and therefore is an "air carrier" for purposes of 49 U.S.C. 42121. Under AIR21, an "�air carrier' means a citizen of the United States undertaking by any means, directly or indirectly, to provide air transportation." 49 U.S.C.A. § 40102(a)(2)(Thomson/West 2007 & Supp. 2013); 29 C.F.R. § 1979.101.

The ARB looked to the historical definition of air carrier in federal aviation law, found that Congress intended a broad definition of "air carrier" in AIR21, found that neither the statute nor the regulations require ownership or operation of aircraft for coverage, and noted that its decision in Evans v. Miami Valley Hosp. , ARB Nos. 07-118, -121, ALJ No. 2006-AIR-2 (ARB June 30, 2009) was instructive. In Evans , the ARB held that a hospital that owned three helicopters and contracted with another company to provide pilots and mechanics for the hospital air ambulance service, was indirectly providing air carrier services, and therefore was an air carrier within the meaning of AIR21. In the instant case, the ARB found that the facts showed that FedEx Services' operations were essential for the air transportation services conducted by FedEx Express. It coordinated information technology and worldwide supply chain services for the FedEx brand. It coordinated data management and networking expertise behind FedEx Express's packing tracking. It also provided disaster and security planning. The ARB noted that FedEx Corp. had formed at least seven operating companies that were each potentially vital to FedEx Corp.'s role as an air carrier. The Board stated: "The technicalities of corporate structure may not act to shield operating 'segments' of an air carrier from their air safety obligations as an air carrier under AIR 21." USDOL/OALJ Reporter at 12. The ARB found further support for its decision in the statutory history of AIR21 generally and section 42121 specifically. The Board summarized:

   [A Congressional statement about the intent to provide strong whistleblower laws to protect aviation employees from retaliation for stepping forward to assist in the enforcement of safety laws] is no less true when it comes to workers like Cobb whose jobs directly involve airline safety � whether it is disaster planning, detecting package bombs, cargo tracking, or drafting runway vulnerability studies. Cobb, and other employees of FedEx's companies, may be "in the best position to recognize breaches in safety regulations and can be the critical link in ensuring safer air travel." Congress cannot have intended that a FedEx Express employee working side by side with a FedEx Services employee in the SuperHub at Memphis International Airport, each seeing an air safety violation and reporting it, would result in the former employee being protected by Section 42121 and the latter not. A broad definition of "air carrier" is necessary to give full effect to the purpose underlying Section 42121 of encouraging reporting of air safety concerns. For all these reasons, we find that FedEx Services is a covered air carrier under AIR 21.

USDOL/OALJ Reporter at 13 (footnotes omitted). The Board thus reversed the ALJ's holding, and remanded for further proceedings. One member of the Board concurred, stating that there was not enough information in the record to determine whether FedEx Services indirectly supports the provision of air transportation, and therefore he would have remanded the coverage issue for further consideration.

[STAA Digest II L]
ARB DENIES PETITION FOR REVIEW OF ALJ'S STAA DECISION WHERE BANKRUPTCY COURT DETERMINED THAT IT WOULD ADJUDICATE THE CLAIM

In Joyner v. Coach AM Group Holdings Corp. , ARB No. 13-093, ALJ No. 2011-STA-42 (ARB Dec. 13, 2013), the Complainant petitioned for ARB review of the ALJ's decision dismissing his STAA whistleblower claim. The Respondent's counsel filed a motion to withdraw with ARB, indicating therein that a Bankruptcy court had determined that the Complainant's proof of claim on the STAA matter would be adjudicated by the Bankruptcy court. The ARB granted the motion to withdraw, and ordered the parties to state whether the ARB has the authority to proceed given the Bankruptcy court's determination. The Complainant replied by asking the ARB to request the Bankruptcy court to forward the Complainant's case to district court for consideration of withdrawal under 28 U.S.C. § 157(d). The ARB found that the response failed to establish that the ARB had the authority to proceed, and therefore rejected the petition for review of the ALJ's decision under 29 C.F.R. § 1982.110(b). The ARB noted that its denial of review resulted in the ALJ's decision becoming the final order of the Secretary, and that the appeal was to the appropriate U.S. Court of Appeals.

TRUCK MODIFIED TO INCLUDE A PASSENGER COMPARTMENT FOR WORKERS FOUND TO VIOLATE MSPA REGULATIONS WHEN IT WAS ALSO SIMULTANEOUSLY USED TO TOW TRAILERS; ORIGINAL DESIGN AND CONSTRUCTION OF VEHICLE RATHER THAN ITS CURRENT USE AND PURPOSE FOUND TO BE DETERMINATIVE

In Administrator, Wage and Hour Div. USDOL v. Alpha Services LLC , ARB No. 12-070, ALJ No. 2011-MSP-3 (ARB Dec. 12, 2013) the Respondent tree planting company acquired pick-up trucks and modified them by attaching passenger compartments to the trucks' beds. The company transported seasonal and agricultural workers in these modified trucks while also towing trailers containing gear and equipment. The Wage and Hour Division imposed a $800 civil money penalty against the Respondents under the Migrant and Seasonal Agricultural Worker Protection Actor for failing to provide safe transport vehicles. The regulation at 29 C.F.R. § 500.105(b)(2)(ix) provides, in relevant part, that "[w]orkers may be transported in or on only . . . [a] bus, [or] a truck with no trailer attached . . . ." 29 C.F.R. § 500.105(b)(2)(ix). The MSPA regulations do not define the terms "bus" or "truck." The parties waived an evidentiary hearing, and agreed to have the ALJ decide the issue as a matter of law. The ALJ held that the company's vehicles were buses under the MSPA because the company "modified the vehicles precisely to convert their primary use from transporting property to transporting passengers." USDOL/Reporter at 3, quoting ALJ decision at 4. The ALJ found the primary use of the vehicle as currently configured to be determinative. The ARB, employing principles of regulatory construction, and in particular the principle that context matters, found it illogical to say that adding a passenger compartment to a vehicle originally designed and constructed as a truck, and modifying the truck to comply with 29 C.F.R. § 500.105(b)(2)(vi) (which requires that"[e]very motor vehicle transporting passengers, other than a bus, shall have a passenger compartment meeting the requirements [specified in the subsection]"), transformed the company's truck into a bus within the meaning of 29 C.F.R. § 500.105(b)(2)(ix). The ARB found that accepting such reasoning would render 29 C.F.R. § 500.105 "unmanageable and absurdly cyclical." The ARB held that "it is not the current use of a vehicle or the purpose to which it is employed that determines its classification. Rather, it is the purpose and use for which the vehicle was originally designed that is controlling." USDOL/OALJ Reporter at 6.