USDOL/OALJ Reporter: ARB Decision Caselist - December 2014

The ARB dismissed without prejudice the Petitioner's petition for review under the Davis-Bacon Act of a minimum conformed wage rate where the Petitioner did not respond to the ARB's order to show cause why the petition should not be dismissed for lack of a final decision as required by 29 C.F.R. § 7.1. The Administrator of the Wage and Hour Division had averred that the matter was not ripe for review because there had not been a final ruling in the matter by the Wage and Hour Division.

[Nuclear & Environmental Digest XI D 1]
CLEAR AND CONVINCING EVIDENCE BURDEN OF PROOF MET BY RESPONDENT WHERE THE COMPLAINANT ENGAGED IN A PROFANE OUTBURST AT A STAFF MEETING ANNOUNCING A CONTROVERSIAL NEW POLICY WHERE THE COMPLAINANT WAS IN A LEADERSHIP CAPACITY, THE COMPLAINANT S SUPERVISOR UNDERSTOOD THE OUTBURST TO MEAN THAT THE COMPLAINANT WOULD NOT COMPLY WITH THE NEW POLICY, AND THE OUTBURST OCCURRED AFTER MANAGEMENT HAD MADE IT CLEAR THAT ITS DECISION ON THE NEW POLICY WAS FINAL; ALJ SUFFICIENTLY CONSIDERED FACTS THAT WOULD HAVE CHANGED IN THE ABSENCE OF THE COMPLAINANT S PROTECTED ACTIVITY; ALJ FOUND THAT THE COMPLAINANT S OUTBURST DID NOT EXPRESS ANYTHING REGARDING POLICY S IMPACT ON SAFETY BUT ONLY CONCERN ABOUT LOSS OF JOURNEYMAN JOBS

In Speegle v. Stone & Webster Construction, Inc. , ARB No. 14-079, ALJ No. 2005-ERA-6 (ARB Dec. 15, 2014), the Complainant was a journeyman painter and foreman. He and other journeymen opposed a management plan to certify apprentice painters for certain painting repair work. The opposition included both protected nuclear safety concerns and union issues. As a result, there was tension in the workplace. In a meeting in which management announced that it approved the plan the certify apprentice painters, the Complainant stood up and told the general foreman in a loud voice in front of other members of his journeymen crew that management could take the plan and 'shove it up their ass. The Complainant also testified that before walking out of the meeting he may had told the general foreman [t]hank you; you just gave all these people's jobs away. A supervisor viewed the Complainant's outburst as meaning that he would not comply with management's decision. The Complainant was suspended and then terminated from employment for insubordination. A lengthy adjudication of the Complainant's ERA whistleblower complaint before the Department of Labor and the Eleventh Circuit ensued. In a 2013 decision on remand, the second ALJ on the case determined that the Respondent had established by clear and convincing evidence that it would have taken the same action against Complainant absent the protected activity. In a two judge majority decision in April 2014, the ARB remanded the matter because it found that the ALJ had failed to discuss some material facts or to discuss what facts would have changed absent the protected activity. In its remand decision, the ARB

held that the express terms of the whistleblower statute require the employer to prove by clear and convincing evidence that it would have taken the same adverse action in the absence of protected activity. We explained that this statutory mandate requires adjudicators of whistleblower cases to consider the combined effect of at least three factors applied flexibly on a case-by-case basis: (1) how clear and convincing the independent significance is of the non-protected activity; (2) the evidence that proves or disproves whether the employer would have taken the same adverse action; and (3) the facts that would change in the absence of the protected activity.

    The majority noted that the employer may have direct or circumstantial evidence of what it would have done and that the circumstantial evidence can include, among other things: (1) evidence of the temporal proximity between the non-protected conduct and the adverse actions; (2) the employee's work record; (3) statements contained in relevant office policies; (4) evidence of other similarly situated employees who suffered the same fate; and (5) the proportional relationship between the adverse actions and the bases for the actions.

USDOL/OALJ Reporter at 4 (footnotes omitted) (summarizing ruling from Apr. 25, 2014 remand decision). On remand, the ALJ struggled with some aspects of the ARB's remand order, particularly on how to hypothetically consider all logically connected facts that would have changed in the absence of the protected activity, and issued a decision that focused on clarifying his earlier decision and specifically addressing the matters and analysis raised by the ARB's remand order. See Speegle v. Stone & Webster Construction, Inc. , 2005-ERA-6 (ALJ July 9, 2014).

In the current appeal, the Board summarized the ALJ's findings on the relevant circumstantial evidence. The ARB stated that the ALJ found that the temporal proximity between the outburst and the termination indicated that the termination was for the outburst rather than the previous raising of safety concerns. The ARB noted that the ALJ found that the Complainant's outburst must be viewed in the unique context that the Complainant was responding as a leader at a public meeting about the new policy when reviewing the Respondent's determination that the outburst was insubordinate and an indication of a refusal to complete the task. The ALJ gave no weight to the fact that the Respondent's policy that employees may be fired for insubordination did not include a definition of insubordination because employers want to retain some discretion with such decisions. The ALJ found that there were no comparator employees under the unique circumstances of the case. The ALJ noted that the supervisors were aware of the Complainant's good work record and that he may have deserved some leeway for an outburst regarding safety concerns or protected activity, but that the only concern raised by the Complainant at the time of the outburst related to union concerns about giving journeyman jobs to apprentices.

The two-judge majority of the ARB panel stated that the instant case was not a strong case for finding that the Respondent established its clear and convincing evidence burden, but nonetheless found that substantial evidence supported the ALJ's finding that the Respondent established by clear and convincing evidence that it would have fired the Complainant absent the Complainant's protected activity. The ARB stated:

The ALJ explained that the reason for the termination was clear, that S & W considered Speegle's outburst regarding the new policy, telling management it could 'shove it, was insubordinate. The ALJ found the grounds for termination convincing because (1) Speegle made his outburst, as a leader before other journeyman painters at a public meeting announcing the new policy; (2) Gero understood that Speegle would not comply with management's directive; and (3) Speegle made his outburst after tension had built up and management made clear that it had reached a final decision and the matter was resolved.

   In considering the evidence that proves that S & W still would have terminated Speegle, the ALJ found that S & W had not terminated either Speegle or any other worker before that meeting for raising previous concerns or expressing safety concerns or protected activity, but suspended and terminated Speegle after his outburst. Finally, considering the facts that would change in the absence of Speegle's safety concerns or protected activity, the ALJ found that Speegle did not express anything regarding safety with his outburst, but only his journeyman union job concerns. Thus, there is no need to engage in hypothetical analysis because, assuming Speegle had not expressed any safety concerns, the ALJ sufficiently explained that the other concerns not ERA related also created tension that led to the May 22, 2005 meeting, and Speegle's outburst would have been just as insubordinate and unacceptable to management in the manner that it occurred, leading to immediate suspension and termination.

USDOL/OALJ Reporter at 6. Because the ALJ had sufficiently considered and explained the combined effect of the three factors, the ARB affirmed the ALJ's decision. One member of the Board issued a concurring opinion focusing on precedent to the effect that protected activity does not shield an insubordinate employee from discipline, and that the record showed that the Complainant had apparently refused to comply with company procedures in an outburst during a staff meeting.

[STAA Whistleblower Digest II H 4 c]
MOTION TO REOPEN ONCE PETITION FOR REVIEW IS FILED IN COURT OF APPEALS; ARB DETERMINES THAT WITHOUT A REMAND, IT HAS NO JURISDICTION TO ENTERTAIN MOTION TO ADD NEW EVIDENCE TO THE ADMINISTRATIVE RECORD, OR ALTERNATIVELY, THAT THE SUCH EVIDENCE IN THE INSTANT CASE HAD NOT BEEN SHOWN TO BE MATERIAL BECAUSE IT WOULD NOT BE LIKELY TO CHANGE RESULT

In Smith v. Lake City Enterprises, Inc. , ARB No. 14-063, ALJ No. 2006-STA-32 (ARB Dec. 10, 2014), the Complainant obtained a stay from the Sixth Circuit Court of Appeals of his petition for review of the ARB's decision in order for the Complainant to file with the ARB a motion to reopen the record for the submission of new evidence. The new evidence related to whether the Respondent's owner's spouse exercised control over the Complainant's employment. The ARB denied the motion to reopen. The ARB first determined that it lacked jurisdiction to entertain the motion because the Sixth Circuit had not remanded the case the ARB. The ARB also determined, assuming that it had the jurisdiction over the motion, that the evidence the Complainant sought to add to the administrative record did not appear to be material because it would not be likely to change the result in the case.

The ARB granted the parties joint motion to vacate the ARB's order awarding attorney fees and expenses. The motion was based on a resolution of all of the Complainant's claims against the Respondent following the Sixth Circuit's order denying the Respondent's petition for review.

Following the ALJ's dismissal of the Complainant's NTSSA and environmental whistleblower claims for lack of timeliness, the Complainant filed with the ARB a Response to Order to Dismiss. It was unclear whether the Complainant's filing was intended as a petition for review. Moreover, the filing did not cite any error in the ALJ's decision. The ARB therefore issued an order giving the Complainant ten business days to file a petition for review that complied with 29 C.F.R. § 24.110(a) and 29 C.F.R. 1982.110(a). The Complainant did not file such a petition, and the ARB then closed the case.