DERECOGNITION OF STATE APPRENTICESHIP AGENCY OR COUNCIL UNDER THE NATIONAL APPRENTICESHIP ACT
The USDOL's Office of Apprenticeship Training, Employment and Labor Services (OATELS)
has the authority under the National Apprenticeship Act to approve apprenticeship programs for various "Federal purposes," and
may delegate this authority to a state by "recognizing" a "State Apprenticeship Agency or Council" (SAC) so long as the state's apprenticeship laws conform to federal standards
and requirements. If a state does not continue to conform to the federal standards and requirements, however, OATELS has the authority to "derecognize" the SAC for "reasonable cause."
In USDOL, Office of Apprenticeship Training, Employment and Labor Services (OATELS) v. California Dept. of Industrial
Relations, ARB No. 05-093, ALJ Nos. 2002-CCP-1, 2003-CCP-1 (ARB Jan. 31, 2007), the State of California amended its apprenticeship laws in a way that
OATELS found did not conform to federal standards. After concilation efforts failed, OATELS moved to derecognize California's SAC.
The ALJ issued a decision recommending that the case be decided in OATELS' favor on summary judgment. The ALJ rejected OATELS's argument that it had the authority
to derecognize CDIR and CAC solely on the basis that they had not requested or received OATELS's approval of the amended California apprenticeship statute prior to its
enactment. The ALJ recommended that summary decision be granted to OATELS, however, on the ground that OATEL's contention that the amended California statute does not conform to federal
apprenticeship standards was reasonable. Conducting de novo review, the ARB concluded that the ALJ had correctly analyzed the case.
ERC/Teledyne Brown Engineering, ARB No. 05-133 (ARB Jan. 31, 2007)
WAGE DETERMINATION; SLOTTING AS A CONFORMANCE PROCEDURE; ADMINISTRATOR'S DETERMINATION WILL
BE REVERSED ONLY IF INCONSISTENT WITH REGULATIONS, UNREASONABLE, OR CONSTITUTE A DEPARTURE FROM
PAST PRACTICE
In ERC/Teledyne Brown Engineering, ARB No. 05-133 (ARB Jan. 31, 2007), a case arising
under the Service Contract Act, the ARB reviewed
the Deputy Administrator's final ruling classifying (i.e., "slotting") calibration technicians under a NASA contract as
Metrology/Calibration Technician (MCT) I, II and III, by using the Instrument Mechanic (IM) classification rate of pay as a benchmark.
The Board observed that slotting is a well established conformance procedure, that the Administrator is accorded broad discretion in
establishing a conformed rate, and that the Administrator's determination will be reversed only if inconsistent
with the regulations, or if they are unreasonable in some sense, or if they exhibit an unexplained departure from past determinations.
Upon review, the Board found that the Petitioners (ERC employees who were dissatisfied with the wage determination)
had not presented convincing argument or factual support to demonstrate that the levels of skill,
experience, education, and training required of the IM were so dissimilar from those of the MCT that the Deputy Administrator's choice
of benchmark classification was unreasonable.
Harris v. C & N Trucking, ARB No. 04-175, ALJ No. 2004-STA-37 (ARB Jan. 31, 2007)
PROTECTED ACTIVITY; REFUSAL TO DRIVE; RESPONDENT'S INSPECTION OF VEHICLE AND EXPLANATION
TO COMPLAINANT OF WHY IT IS SAFE TO DRIVE
In Harris v. C & N Trucking, ARB No. 04-175, ALJ No. 2004-STA-37 (ARB Jan. 31, 2007), the ARB affirmed the ALJ's finding that the Complainant did not prove that he engaged in protected activity under the
STAA where, although the Complainant believed that his assigned vehicle was unsafe to drive, the Respondent's owner
credibly testified that he examined the truck and explained to the Complainant that there was no reason to remove it from service.
[Editor's note: The ARB decision does not elaborate on why the owner's testimony prevented a finding that the
Complainant did not engage in protected activity when he refused to drive. The ALJ's recommended decision, however,
contains a discussion of caselaw holding that a complainant's refusal to drive may lose protected status if the respondent
investigated the hazard, determined the vehicle was safe, and informed the employee of that determination.
Harris v. C & N Trucking, 2004-STA-37 (ALJ Sept. 9, 2004), slip op. at 8-9.]
BONA FIDE OFFER OF REINSTATEMENT; MOTIVE OF EMPLOYER TO CIRCUMVENT LIABILITY IS NOT RELEVANT
In Hirst v. Southeast Airlines, Inc., ARB Nos. 04-116, 04-160, ALJ No. 2003-AIR-47 (ARB Jan. 31, 2007),
the ALJ made a finding that the Respondent made an offer of reinstatement only after realizing that termination of the
Complainant violated AIR21 and its implementing regulations. The ALJ, therefore, concluded that the offer was not bona fide
because it was only asserted to circumvent liability. Thus, the ALJ found that the Complainant reasonably rejected the offer
and was entitled to back pay from the date he was discharged until he regained full employment as a pilot.
The ARB found, however, that the Respondent's motive in offering reinstatement was not relevant.
"Instead, an employer makes a bona fide offer of reinstatement when it unconditionally offers the same or a
comparable position as the one held before an unlawful discharge." Slip op. at 8 (footnote omitted).
The ARB also found that the Complainant did not suffer adverse action. Thus,
the ALJ's use of the wrong standard for determining whether a bona fide reinstatement offer had been made
-- which goes to back pay and reinstatement remedies -- was harmless error.
ADVERSE ACTION; ADOPTION OF BURLINGTON NORTHERN "MATERIALLY ADVERSE" STANDARD; EMPLOYER'S IMMEDIATE RESCINDING OF DISCHARGE
In Hirst v. Southeast Airlines, Inc., ARB Nos. 04-116, 04-160, ALJ No. 2003-AIR-47 (ARB Jan. 31, 2007),
the ARB found that it was bound to accept the ALJ's finding that the Complainant had been discharged because it was supported by substantial evidence.
Applying a recent Supreme Court Title VII decision to to STAA whistleblower provision, however,
the ARB held that the Complainant had not established that he suffered adverse employment action. See
Burlington Northern & Santa Fe Ry. Co. v. White, --- U.S. ----, 126 S. Ct. 2405 (June 22, 2006). The ARB cited
the Supreme Court's ruling that a Title VII plaintiff must show that a reasonable employee or job applicant would find
the employer's action "materially adverse," i.e., "the employer's actions must be harmful to the point that they could well
dissuade a reasonable worker from making or supporting a charge of discrimination." USDOL/OALJ Reporter at 10-11, quoting
126 S. Ct. at 2409.
In Hirst, the ARB found that a reasonable employee would have concluded that though the Respondent's
Director of Operations acted hastily and retaliated against the Complainant for refusing to pilot a flight,
the Respondent's officials, including the Director of Operations:
quickly recognized this mistake, promptly corrected
it, immediately informed Hirst that he was still employed, confirmed that fact in writing,
and made sure that Hirst suffered no economic loss. A reasonable worker would see that
SEAL [Southeast Airlines] corrected its mistake within two days and that Hirst, at most,
suffered only temporary unhappiness. In the wake of Malone's decision to discharge Hirst,
SEAL's actions certainly sent a message that management will respect and protect employees
who are concerned with safety. That, of course, is the right message. Therefore, based solely
on these particular facts, we find that a reasonable SEAL employee would not be afraid to make
management aware of safety concerns, or, in White terminology, would not be "dissuaded"
from engaging in protected activity.
USDOL/OALJ Reporter at 12.
Johnson v. Rocket City Drywall, ARB No. 05-131, ALJ No. 2005-STA-24 (ARB Jan. 31, 2007)
WITNESS CREDIBILITY; DEFERENCE TO ALJ'S CREDIBILITY FINDINGS UNLESS THEY ARE INHERENTLY INCREBILE OR PATENTLY UNREASONABLE
In Johnson v. Rocket City Drywall, ARB No. 05-131, ALJ No. 2005-STA-24 (ARB Jan. 31, 2007), the
Complainant's only allegation on appeal was that the Respondent's witnesses perjured themselves to avoid higher rates on unemployment compensation.
The ARB stated that it will uphold an ALJ's credibility findings based on substantial evidence unless they are "inherently incredible or patently unreasonable."
In the instant case, the ALJ had found all of Rocket's witnesses to be "highly credible," and found that the Respondent's witnesses were consistent in
their testimony as to the reasons for the Complainant's firings. The Board deferred to the ALJ's findings, noting that upon review of the hearing
transcript, they had concluded that the ALJ had fairly and throughly analyzed the testimony.
CAUSATION; INFERENCE RAISED BY TEMPORAL PROXIMITY MAY BE NEGATED BY INTERVENING EVENTS
In Johnson v. Rocket City Drywall, ARB No. 05-131, ALJ No. 2005-STA-24 (ARB Jan. 31, 2007), the ARB
held that intervening events negated any inference of causal relationship raised by temporal proximity between
the Complainant's protected activity and his termination. Specifically, on his last day of work, the Complainant dropped two loads of drywall
while unloading a truck at a job site, and then blew out a tire because he backed up his truck without using a spotter in violation of
the Respondent's safety rules.
Kingsbury v. West Wisconsin Transport, Inc., ARB No. 07-029, ALJ No. 2006-STA-25 (ARB Jan. 31, 2007)
Title: Final Decision and Order Approving Settlement and Dismissing Complaint With Prejudice
Talukdar v. U.S. Dept. of Veterans Affairs, Medical and Regional Office Center, Fargo, North Dakota, ARB No.
04-100, ALJ No. 2002-LCA-25 (ARB Jan. 31, 2007)
SETTLEMENT OF LCA EMPLOYEE PROTECTION CASE; ARB'S AUTHORITY TO DISMISS APPEAL; DISCRETIONARY NATURE OF AUTHORITY;
MOOTNESS AND ABSENCE OF REQUIREMENT OF REVIEW OF SETTLEMENT BY THE ARB
In Talukdar v. U.S. Dept. of Veterans Affairs, Medical and Regional Office Center, Fargo, North Dakota, ARB No.
04-100, ALJ No. 2002-LCA-25 (ARB Jan. 31, 2007), one of two Complainants settled her employee protection complaint against the Respondent while the matter was pending on appeal before the ARB. The ARB found that it had the authority to
dismiss a settled case, citing 5 U.S.C. § 557(b) (authority of agency review body) and the ALJ rules of practice at 29 C.F.R. § 18.9(a) and (c)(2). The
ARB, however, observed that its authority to dismiss is discretionary rather than mandatory. The Board found two reasons supporting dismissal. First,
the settlement mooted the portion of the appeal relating to the settled case. Although the ARB is not required to dismiss on grounds of mootness,
it is the ARB's preferred option absent exceptional policy considerations. Second, the INA and its implementing regulations contain
no suggestion that the ARB should refrain from exercising dismissal authority in such a situation, or that the ARB review the settlement such as
in several other types of whistleblower complaints adjudicated by DOL. The ARB's dismissal rendered the relevant portion of ALJ's decision inoperative
pursuant to 20 C.F.R. § 655.845(c), since the ARB was not "affirming the decision and order" of the ALJ.
LCA EMPLOYEE PROTECTION PROVISION; COVERAGE OF VETERANS AFFAIRS PHYSICIANS APPOINTED UNDER 38 U.S.C. § 7405(a)(1)
In Talukdar v. U.S. Dept. of Veterans Affairs, Medical and Regional Office Center, Fargo, North Dakota, ARB No.
04-100, ALJ No. 2002-LCA-25 (ARB Jan. 31, 2007), the Respondent argued that the LCA employee protection provision (8 U.S.C.A. § 1182(n)(2)(C)(iv) (West 2007); 20 C.F.R. § 655.801 (2006)) did not apply to the Complainant
because he was a physician appointed under 38 U.S.C.A. § 7405(a)(1), which authorizes appointments "without regard to civil service or classification laws, rules, or regulations."
The Respondent argued that the LCA employee protection provision is a civil service law. The ARB found no support for this contention because, unlike laws applying specifically to
civil service workers (such as the Whistleblower Protection Act, the Veterans Preference Act, and the federal reduction in force law), the Immigration and Nationality Act applies not only to
government workers but to those employed by all covered employers.
LCA EMPLOYEE PROTECTION PROVISION; CAUSATION; ARB APPLIES "MOTIVATING FACTOR" STANDARD RATHER THE "CONTRIBUTING FACTOR" STANDARD
In Talukdar v. U.S. Dept. of Veterans Affairs, Medical and Regional Office Center, Fargo, North Dakota, ARB No.
04-100, ALJ No. 2002-LCA-25 (ARB Jan. 31, 2007), a case involving the LCA employee protection provision (8 U.S.C.A. § 1182(n)(2)(C)(iv) (West 2007); 20 C.F.R. § 655.801 (2006)), the ARB wrote:
Absent congressional indication that a different standard applies, we have found that an employer acts "because of" protected activity when the employer is "motivated" by that activity. See Lopez v. Serbaco, Inc.,
ARB No. 04-158, ALJ No. 04-CAA-5, slip op. at 4 n.6 (ARB Nov. 29, 2006) (discussing ARB's use of motivating factor standard unless Congress has indicated
that a different standard applies). Although Congress has specified a "contributing factor" standard in the Energy Reorganization Act (ERA), 42 U.S.C.A. §
5851 (West 2003), the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, 49 U.S.C.A. § 42121 (West Supp. 2005), and the
Sarbanes-Oxley Act, 18 U.S.C.A. § 1514A (West Supp. 2005), Congress has not made any such specification in the INA [Immigration and Nationality Act]. Thus, we
apply a "motivating factor" standard in reviewing the ALJ's determination that VAMC acted "because of" protected activity.
LCA EMPLOYEE PROTECTION PROVISION; PRETEXT ESTABLISHED WHERE CIRCUMSTANCES UNDERMINED BUDGET DEFICIT RATIONALE FOR
DISCHARGING COMPLAINANTS
In Talukdar v. U.S. Dept. of Veterans Affairs, Medical and Regional Office Center, Fargo, North Dakota, ARB No.
04-100, ALJ No. 2002-LCA-25 (ARB Jan. 31, 2007), a case involving the LCA employee protection provision (8 U.S.C.A. § 1182(n)(2)(C)(iv) (West 2007); 20 C.F.R. § 655.801 (2006)),
the ARB affirmed the ALJ's finding that the Respondent's stated ground for dismissing the Complainants -- a budget deficit -- was pretext where the Respondent
had hired personnel during the same time period that it had released the Complainants, the Respondent had denied one the Complainants the second of
a two-step pay increase, and there was evidence that the Complainants were considered "discontent" but that they carried their share of the workload. The
ARB also observed that the Respondent had not taken issue with the ALJ's findings that the Respondent had ended the Fiscal Year with a budget surplus,
that it had a budget deficit in the year that the Complainants had been hired, and that ending the Complainants' employment was a departure with a
decade-long practice of renewing all temporary appointments.
SCOPE OF REVIEW; ARB DECLINES TO CONSIDER ISSUES NOT RAISED IN THE PETITION FOR REVIEW
In Talukdar v. U.S. Dept. of Veterans Affairs, Medical and Regional Office Center, Fargo, North Dakota, ARB No.
04-100, ALJ No. 2002-LCA-25 (ARB Jan. 31, 2007), the ARB declined to consider the Respondent's appellate argument disagreeing with the ALJ's award of
back pay in a case involving the LCA employee protection provision (8 U.S.C.A. § 1182(n)(2)(C)(iv) (West 2007); 20 C.F.R. § 655.801 (2006)), where the
Respondent had not specified back pay as an issue in its petition for review. See 29 C.F.R. § 655.845(b)(2) and (3).
LCA EMPLOYEE PROTECTION PROVISION; REINSTATEMENT TO TEMPORARY POSITION
In Talukdar v. U.S. Dept. of Veterans Affairs, Medical and Regional Office Center, Fargo, North Dakota, ARB No.
04-100, ALJ No. 2002-LCA-25 (ARB Jan. 31, 2007), a case arising under the LCA employee protection provision (8 U.S.C.A. § 1182(n)(2)(C)(iv) (West 2007); 20 C.F.R. § 655.801 (2006)),
the Respondent argued that reinstatement was an impossibility because the Complainant's temporary primary care physician position no longer existed. The ARB, however, was
not convinced that the position was actually "gone," noting that the Respondent continued to employ primary care physicians. The ARB noted that in DOL
employee protection cases "[w]here reinstatement is ordered but the complainant's former position no longer exists, the employer generally must offer the complainant reinstatement to 'a substantially
equivalent position in terms of duties, functions, responsibilities, working conditions, and benefits.'" USDOL/OALJ Reporter at 15 (citation omitted).
The Board noted that the Respondent had not argued that the Complainant's position was unique, or that substantially equivalent positions were not available.
The Board also held that the fact that the Complainant held a limited term appointment was not in itself a bar to reinstatement. The Board stated that it
was only ordering that the Respondent return the Complainant to the situation he would have occupied absent the discrimination – i.e., the situation
he would have occupied had his appointment been renewed. The Board held that once the Respondent has reinstated the Complainant to a temporary
position, it will have fulfilled its obligations under this order (but also observing in a footnote that subsequent discrimination would be grounds for a new employee protection
complaint).
In Talukdar v. U.S. Dept. of Veterans Affairs, Medical and Regional Office Center, Fargo, North Dakota, ARB No.
04-100, ALJ No. 2002-LCA-25 (ARB Jan. 31, 2007), the Complainant sought attorney's fees for costs on appeal on a case arising under the LCA employee protection provision (8 U.S.C.A. § 1182(n)(2)(C)(iv) (West 2007); 20 C.F.R. § 655.801 (2006)).
The ARB, noting that the American Rule is generally not to award fees to a prevailing party absent explict statutory authority, and finding no such authority under the INA, and noting that
the Complainant had not provided any reason not to follow the general rule, held that the Complainant was not entitled to recover such fees.
White v. Maricopa Ready Mix, LLC, ARB No. 07-023, ALJ No. 2006-STA-7 (ARB Jan. 31, 2007)
Title: Final Decision and Order Approving Settlement and Dismissing Complaint With Prejudice
Summary: Complainant's motion to reopen the record to present evidence that she
sustained additional compensable injuries after the record closed is denied as moot by the ARB where it had already
issued a Final Decision and Order dismissing the complaint on the merits.
Johnson v. Siemens Building Technologies, Inc., ARB No. 07-010, ALJ No. 2005-SOX-15 (ARB Jan. 19, 2007)
Title: Final Decision and Order Denying Interlocutory Appeal
INTERLOCUTORY APPEAL; "DEATH KNELL" THEORY GENERALLY WILL NOT SUPPORT INTERLOCUTORY REVIEW IN
REGARD TO ALJ'S RULINGS ON DISCOVERY, VENUE AND SUMMARY JUDGMENT
In Johnson v. Siemens Building Technologies, Inc., ARB No. 07-010, ALJ No. 2005-SOX-15 (ARB Jan. 19, 2007),
the ALJ granted a request by the Respondents to deny the Complainant further extensions of time to file a response
to their motion for summary judgment. Before the ALJ ruled on the motion for summary judgment, the Complainant sought
an interlocutory appeal with the ARB, arguing that the ALJ's ruling denying the filing of a response to the summary judgment
motion constitutes a "death knell" to her litigation. The ARB observed that "death knell" theories are generally disapproved
as grounds for an interlocutory order in regard to rulings on discovery, venue, and summary judgment. The Board found that the Complainant could appeal any adverse ruling, and that any
error could be readily remedied should the Complainant prevail on such an appeal.
In Bulls v. Chevron Texaco, Inc., ARB Nos. 07-014, 07-016, ALJ No. 2006-SOX-117 (ARB Jan. 17, 2007),
the ALJ found that the SOX whistleblower complaint was not timely filed and that the Complainant was not entitled to either
equitable tolling or equitable estoppel. The Complainant filed a petition for review with the ARB, but the same day
also filed a Notice of Intent to File Lawsuit in Federal District Court. Under SOX if the Board has not issued a final decision within 180 days of the date on which the complaint was filed
and there is no showing of bad faith by the complainant to delay the proceedings, the complainant may bring an action in the appropriate United States district court.
In the instant case the 180-day period had already expired by the time the Complainant petitioned for ARB review. Neither party responded to the ARB's order to show cause
why the appeal should not be dismissed, and therefore the Board dismissed the appeal.
