Kolbusz-Kijne v. Technical Career Institute, Inc., 94-LCA-10 (ALJ Nov. 4, 1994)
DATE: November 4, 1994
CASE NO. 94-LCA-00010
In the Matter of
EVA KOLBUSZ-KIJNE
Complainant
v.
TECHNICAL CAREER INSTITUTE, INC.
Respondent
and
ADMINISTRATOR, WAGE AND HOUR DIVISION,
EMPLOYMENT STANDARDS ADMINISTRATION,
UNITED STATES DEPARTMENT OF LABOR
Intervenor
Appearances:
Dr. Hugo Kijne, Lay Representative
For Complainant
Janet A. Savrin, Esquire
For Respondent
Marc Sheris, Esquire
Diane Wade, Esquire
For the Administrator
Before: Robert D. Kaplan
Administrative Law Judge
DECISION AND ORDER
This proceeding arises under the Immigration and Nationality
Act, 8 U.S.C. §§1101(a)(15)(H)(i)(b), 1182(n), and 1184
(the Act)
[PAGE 2]
and the regulations promulgated thereunder which are found at 29
C.F.R. §507. Under the Act, an employer may hire workers from
"specialty occupations" to work in the United States as a non-
immigrant. These workers are issued a H-1B visa by the Department
of State. §507.700(b). Respondent, Technical Career
Institute, employed H-1B visa holders to teach English as a second
language at its New York, New York facility. Complainant, Eva
Kolbusz-Kijne, alleges that Respondent, who is her employer, failed
to properly notify its teachers' collective bargaining
representative (trade union) of the filing of certain Labor
Condition Applications (LCA) prior to renewing the H-1B visas of
its employees. See §507.730(h)(1)(i). Complainant
further alleges that since filing her complaint against Respondent
she has been the object of improper intimidation by Respondent.
See §507.800.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. FACTUAL AND PROCEDURAL HISTORY
This case involves Complainant's second complaint against
Respondent under the Act. The first complaint was filed with the
Wage and Hour Division of the Employment Standards Administration
on April 29, 1993. After investigation by the Administrator, on
August 10, 1993, a formal hearing was held before Administrative
Law Judge Charles P. Rippey (Case No. 93-LCA-00004). On October
14, 1993, Judge Rippey found that Respondent had failed to properly
notify the union of two LCAs filed on January 12, 1993 and February
19, 1993. Judge Rippey also found that no violation occurred with
respect to an LCA dated January 9, 1992 because the LCA was filed
prior to the effective date of the Regulations which govern the LCA
application process. Considering the factors set forth in
§507.810(c)(1)-(7), Judge Rippey concluded that a civil money
penalty of $500.00 should be imposed for each violation for a total
civil money penalty of ,000.00.
Complainant, Respondent, and the Administrator all sought
review by the Secretary of Judge Rippey's Decision and Order.
On February 23, 1994, while the case heard by Judge Rippey was
being reviewed by the Secretary, Complainant filed the second
complaint. (A 1)[1] In the instant complaint, Complainant
attached a list obtained from the Department of Labor which seemed
to indicate that 35 LCAs had been issued covering a total of 47
employees. Complainant referenced Judge Rippey's Decision and
Order and requested a full investigation and an accounting for the
remaining LCAs for which no notice had been provided to the union.
[PAGE 3]
On June 10, 1994 the Administrator issued a determination
letter which found that Respondent had failed to properly post
several LCAs. (C 1) However, it is impossible to determine from
the determination letter which LCAs were considered. As a remedy
for Respondent's failure to properly post the LCAs, the
Administrator ordered Respondent to repost the LCAs at issue. The
Administrator further determined that since these violations were
neither "substantial" nor "willful" no notification to the Attorney
General under §507.855 was warranted.
On June 24, 1994, Complainant requested a formal hearing
before the Office of Administrative Law Judges and on July 8, 1994,
I issued a notice scheduling a hearing.
On July 18, 1994, the Secretary affirmed Judge Rippey's
decision but determined that a lesser civil money penalty of
$250.00 per violation was warranted, for a total civil money
penalty of $500.00. Applying the criteria at §507.810(c)(1)-
(7), the Secretary found that the following factors warranted a
lesser civil money penalty:
Respondent has no history of violations, a minimal number
of workers were potentially affected by the violation,
there was no financial gain to Respondent and no
demonstrated financial loss or injury to any other party
as a result of the failure to notify of the union of the
labor condition applications, and Respondent has
committed to future compliance.
(Secretary, D & O, p. 16).
A formal hearing in the instant case was held before me on
September 20, 1994 in New York, New York. After the hearing, the
record remained open for submission of the affidavit of Mary Pat
Dodds and the parties' briefs. Dodds' affidavit has been filed and
is received into evidence as A 5. The parties have filed briefs.
II. THE INSTANT CASE
A. Failure to notify of filing of labor condition
applications
Under §507.730(h)(1)(i), where there is a collective
bargaining representative in the occupational classification in
which H-1B visa holders will be employed, an employer is required
to provide written notice to the bargaining representative "on or
before the date the labor condition application is filed." In the
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instant case, Complainant alleges that such notice was not provided
to the bargaining representative in a timely fashion. The
Administrator and Respondent state that while notice may have been
given later than prescribed in the Regulations, no additional
action is required to bring Respondent into compliance and there is
no need to assess additional penalties against it.
At the outset of the hearing Complainant listed LCAs that she
alleged should have been considered by the Administrator. These
LCAs are dated October 19, 1993, April 26, 1993, May 20, 1993, June
23, 1993, and January 11, 1994. (TR 12) In addition, Complainant
stated she believed, based on her reading of other documents
obtained from the Department of Labor, that additional LCAs were
filed on or before May 20, 1993, May 26, 1993, and July 16, 1993.
(TR 19-20)
Complainant withdrew from consideration the LCAs of October
19, 1993 and January 11, 1994 because they related to non-union
positions. (TR 19) After considering the witnesses' testimony at
the hearing, Complainant also withdrew from her complaint the LCAs
filed on or before May 20, 1993, May 26, 1993 and July 16, 1993,
whose existence has not been established. (TR 232) Although
initially contested, Complainant also acquiesced in the
Administrator's determination that another LCA dated May 20, 1993
was a forgery which had been filed without Respondent's consent,
and she withdrew it from consideration. (TR 227)[2]
Therefore, the remaining LCAs to be considered are those of
April 26, 1993 and June 23, 1993. Complainant
contends that the Act was violated because Respondent failed to
notify the union about these LCAs until Respondent sent the union
a letter dated August 5, 1993. (C 1)[3]
Mary Pat Dodds, an investigator with the Wage and Hour
Division, testified that she conducted the investigations in both
the case that was heard by Judge Rippey and the instant case. (TR
65) Dodds testified that the Administrator felt that additional
remedial action for the LCAs in question in the instant case would
be "redundant" to the fines already imposed by Judge Rippey in the
prior case. (TR 102) Dodds reiterated the Administrator's opinion
that the additional violations found by Dodds were neither willful
nor substantial.
Dodds testified at the hearing that she met with
representatives of Respondent on two occasions in 1993 and at those
times explained the requirements of the Act and Regulations to
Respondent's representatives. (TR 112, 141) In her post-hearing
affidavit Dodds revised her testimony and stated that she met with
[PAGE 5]
representatives of Respondent in connection with her investigation
in the prior case on only one occasion, June 15, 1993. (A 5)
Despite Dodds' face-to-face meeting with Respondent to explain
the requirements of the Act and Regulations on June 15, 1993, the
only document evidencing notice to the union is Respondent's letter
to the union dated August 5, 1993. (C 1) Dr. Henry Moss,
Respondent's president during the time in question and currently
vice president for academic affairs, testified that he recalled
giving notice to the bargaining representative with respect to the
June 23, 1993 LCA -- apparently prior to the letter of August 5,
1993 -- but he was unable to find a copy of the notice. (TR 168-
173) Dr. Moss further testified that after meeting with Dodds,
Respondent took steps to improve its control over the LCA process.
(TR 169) Dr. Moss stated that the August 5, 1993 letter was sent
to the bargaining representative to "clean up our files" and bring
Respondent into compliance. (C 1)
As Ms. Dodds correctly testified, "[t]he burden falls to the
firm to maintain a record of the notification that they've given
and there was no such record. The earliest record I have is of the
August notification." (TR 98); See also §507.705(c)(5).
I agree, and find that the union was not sent notice of the filing
of the April 26, 1993 and June 23, 1993 LCAs until August 5, 1993.
During her testimony, Dodds continually characterized the
August 5, 1993 notice to the bargaining representative as
"untimely" but "proper," thereby -- Dodds stated -- extinguishing
the need for any further action against Respondent by the
Administrator. (TR 134-135)
Dodds testified that she spoke to the bargaining
representative, Sue Lyons, and that Lyons "indicated to me that she
had no objection at all to the filings of the LCAs and indicated
that there were no ramifications of their not having been timely or
properly notified." (TR 144) Lyons' deposition testimony is
consistent with that of Dodds on this subject. (C 2, pp. 20, 22-23)
Dodds further stated that Lyons' representations were a "major
factor" in the determination reached by the Administrator.
However, I find no provision in the Act or Regulations which
permits a union's waiver of the requirement to be notified to be
considered in determining whether a violation has occurred.
The facts presented in this case are more clear than those
decided by Judge Rippey. In Judge Rippey's case, notice of the
January 12, 1993 and February 19, 1993 LCAs was provided in a
letter dated March 11, 1993. In the instant case, proper notice of
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the April 26, 1993 and June 23, 1993 LCAs was not provided until
August 5, 1993. Furthermore, the June 23, 1993 LCA was filed just
eight days after Dodds had explained the LCA filing and
notification process to Respondent. Yet it was not until almost
six weeks later, on August 5, 1993, that Respondent gave proper
notice to the union.
Based upon my reading of the Secretary's decision in the
previous case, I find that the failure to properly notify the
bargaining representative is a "substantial" failure under the
Regulations. See Secretary D & O, p. 16.
Section 507.810 provides that upon determination that the
employer has committed any violation described in §507.805(a),
the Administrator may assess a civil money penalty not to exceed
,000.00 per violation. In determining the amount of civil money
penalty to be assessed, the Administrator shall consider the type
of violation committed and other relevant factors. The factors
which may be considered include, but are not limited to:
1. Previous history of violation, or violations by the
employer under the INA and subparts H or I;
2. The number of workers affected by the violation or
violations;
3. The gravity of the violation or violations;
4. Efforts made by the violator in good faith to comply with
the provisions of 8 U.S.C. 1182(n) and subparts H and I;
5. The violator's explanation of the violation or viola-
tions;
6. The violator's commitment to future compliance; and
7. The extent to which the violator achieved a financial
gain due to the violation, or the potential financial
loss, potential injury of adverse effect with respect to
the other parties.
§507.810(c).
In his decision, the Secretary assessed a civil money penalty
of $250.00 for each of the two violations adjudicated before Judge
Rippey. In the instant case, an increased penalty is warranted for
several reasons. First, these two additional violations increase
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the total violations committed by Respondent to four. Second, as
I have already found, Respondent ignored the advice and guidance
provided by the Wage and Hour Division's investigator and failed to
provide notice to the bargaining representative for an LCA filed
eight days after being apprised of the proper filing procedure.
Finally, although Respondent has stated that it is committed to
future compliance, it has failed to demonstrate that its attempts
at compliance have been effective. Based upon the following
factors, as well as those that have not changed since the final
decision of the Secretary, I assess a civil money penalty of
$500.00 for each of the two violations, for a total civil money
penalty of ,000.00.[4]
B. Intimidation
During the pendency of the appeal of Judge Rippey's Decision
and Order, Complainant submitted a letter brief to the Secretary
which argued, interalia, that Respondent's Vice
President, Edward Leff, committed perjury in his testimony before
Judge Rippey.
In a letter dated December 15, 1993, Mr. Leff responded to
Complainant's allegation by stating:
Your appeal letter to the Secretary of Labor (case # 93-
LCA-0004) dated November 10, 1993 contains untrue and
libelous statements meant to defame me personally. To
wit, in paragraph 2A you state that if the information
you received from Dr. Moss is correct "Mr. Leff committed
perjury". Before you use a term such as perjury, I
suggest you consult a dictionary.
We have tried to maintain a level of professionalism in
dealing with you, but you are resorting to personal
attacks which are undignified.
Unless you retract these statements, in writing, to the
Secretary of Labor and issue a written apology to me
within 30 days, I will take the appropriate legal action
against you.
Very truly yours,
/s/ Edward Leff
(A 1)
In a reply letter dated December 20, 1993, Complainant
responded to Leff's demand for a written apology by stating that
[PAGE 8]
her statement was "conditional" and therefore not libelous.
Complainant also reiterated the basis for her original statement.
(A 6)
By letter dated January 5, 1994,[5] Complainant filed a
complaint with the Administrator stating that Leff's letter was an
attempt to intimidate her. (A 1)
In a letter dated January 6, 1994, Respondent's counsel sent
Complainant a letter which states in part:
As Mr. Leff correctly stated, your accusation that Mr. Ed
Leff committed perjury during the August 10th hearing is
a libelous statement. I wish to inform you that perjury
is a "willful and corrupt sworn statement made without
sincere belief in its truth." Even if, as you say in
your letter, that your accusation is "conditional", it is
libelous. You will have to prove that Mr. Leff did not
believe his statement to be the truth at the time that he
said it in order to have a defense against your libelous
statement. I suggest that you retract this accusation in
writing to Mr. Leff, with a copy to the Labor Department,
and refrain from any further libelous statement against
my client.
The Administrative Law Judge has rendered a decision, and
Petition for Review has been filed. I strongly recommend
that you discontinue any personal correspondence to Mr.
Leff or [Respondent] asking for clarification or
additional information to satisfy your curiosity in
regard to any LCAs. This matter is appropriately before
the Secretary of Labor, who will review the record and
render a decision.
(C 1)
Section 507.800(d), states that "No employer shall intimidate,
threaten, restrain, coerce, blacklist, discharge, or in any manner
discriminate against any person" because that person has engaged in
certain protected activities. The Act itself contains no specific
"whistleblower" protection.
As this is a case of first impression with respect to the
"whistleblowing" provision of the Regulations, I must borrow from
other statutes in order to define the elements which Complainant
must establish.
In Reich v. Hoy Shoe Co., Inc., 32 F.3d 361, 365 (8th
Cir. 1994), the United States Court of Appeals set forth a "three-
[PAGE 9]
pronged framework for analysis" of adverse action claims under the
Occupational Safety and Health Act, 29 U.S.C. §651, etseq.; See alsoBrock v. Casey Truck Sales,
Inc., 839 F.2d 872, 876 (2nd Cir. 1988)(employing same test in
Fair Labor Standards Act cases); Passaic Valley Sewerage Com'rs
v. Department of Labor, 992 F.2d 474, 480 (3d Cir. 1993)(Clean
Water Act); Lockert v. Department of Labor, 867 F.2d 513,
519 (9th Cir. 1989)(Energy Reorganization Act and National Labor
Relations Act).
Under the three-pronged test, Complainant must first set forth
a primafacie case by "showing participation in a
protected activity, a subsequent adverse action by the employer,
and some evidence of a casual connection between the protected
activity...and the adverse action." Id. (quoting Schweiss
v. Chrysler Motors Corp., 987 F.2d 548, 549 (8th Cir. 1993)).
Once Complainant has established her primafacie
case, the burden then shifts to Respondent to "articulate an
appropriate non-discriminatory reason for its action." Id.
Finally, if Respondent overcomes this burden, Complainant must then
demonstrate that the proffered reason is pretextual.
Id. This general framework has
been applied by the Secretary to cases adjudicated under 29 C.F.R.
Part 24. Dartey v. Zack Co. of Chicago, 82-ERA-2 (Sec'y,
April 25, 1983); See alsoTexas Dep't of Community
Affairs v. Burdine, 450 U.S. 248 (1981).
While Complainant herself did not testify about the alleged
intimidation, Dodds testified that in addition to investigating the
second complaint regarding LCAs, she investigated Complainant's
allegations of intimidation. Dodds testified that during the
course of her investigation she discussed the letters with
Complainant. Dodds recalled, "I should say she said that she was
upset, she was upset, physically upset by the [Respondent's]
letters." (TR 126)
Dodds stated that based on her discussion with Complainant, "I
determined that there was no harm to [Complainant] and she suffered
no adverse affect at her work or no adverse affect on either her
pay, her performance evaluations, or in any way that had anything
to do with her work situation." (TR 77) Dodds further testified
that "I didn't feel that it [the threat of a law suit] was
something that fell within our jurisdiction under this law or
within that section of the Regulations." (TR 77) Dodds later
suggested that the letters were not related to any protected
activity. (TR 120-121)
While the Administrator stipulated that Complainant's
allegations of intimidation were incorporated into the
Administrator's determination letter of June 10, 1994, the letter
[PAGE 10]
is silent on this issue. (TR 54)
Other than the letters themselves and the brief testimony by
Dodds, Complainant introduced no evidence with respect to the
intimidation claim.
With respect to Complainant's primafacie case,
I find that Complainant has established the first element by
showing that she
engaged in several protected activities including the filing of a
complaint with the Administrator and by filing an appeal to the
Secretary. §507.800(d)(1).
The second element for a primafacie case is
that Complainant must show that she has been subjected to an
adverse action by Respondent. Although not clearly articulated by
Complainant, I infer from her brief the argument that the threat of
a libel suit if she did not suspend her efforts had a chilling
effect on her continuing to pursue this matter before the
Department of Labor. However, no testimony or other evidence was
introduced on this point. In fact, Moss testified that the
"paperwork," (i.e., correspondence) from Complainant, "kept
coming" after Respondent's letters were sent. (TR 213)
I disagree with the argument of Respondent and the
Administrator that the letters did not coerce or intimidate
Complainant because she continued to press forward with her
actions. Such an analysis makes the violation turn on the
subjective response of the "victim." Rather, I find that a threat
to file a defamation lawsuit against the complaining individual
unless she ceases her protected activity has an implicit chilling
effect and therefore would be prohibited by §507.800(d).[6]
However, I find no support in the Act for the "whistleblower"
regulation. Whereas in other statutes Congress has enacted
whistleblower protection, it has not done so here. This provision
is solely the creation of the Secretary and, I find, as such the
Secretary has usurped the authority of Congress to make
legislation.
In Malpass v. General Electric Co., 85-ERA-38 and 39
(Sec'y Mar. 1, 1994), the Secretary recently recognized such a
limitation on his authority to promulgate regulations empowering an
administrative law judge to issue subpoenas or impose sanctions in
the absence of specific legislation providing for these actions.
In Malpass, the Secretary stated, "I do not believe the
Secretary can assume powers not delegated to him by Congress simply
by incorporating provisions, such as the Federal Rules of Civil
Procedure, in departmental regulations." Slip. op. at 22. In the
[PAGE 11]
instant case, the Secretary has impermissibly attempted to create
a whole new body of substantive rights and violations not expressly
contemplated by Congress. Consequently, it would not be
appropriate to find that Respondent's letters to Complainant
constitute a remediable violation.
C. Debarment
Under §507.855 the Administrator is required to notify
the Attorney General upon a finding of a violation by the
Administrator, an Administrative Law Judge, or the Secretary even
though an appeal might be pending. Upon receipt of this
notification, the INS will debar the violator from the H-1B visa
program for a certain period of time, even though an appeal might
be pending. §507.855(c). In the instant case, Respondent is
ineligible to participate in the H-1B visa program from January 26,
1994 to January 25, 1995 based on the determination by Judge
Rippey. See Secretary D & O, p. 5.
Despite language in Judge Rippey's Decision and Order in which
he directed the Administrator to forbear from notifying the
Attorney General until his Decision and Order could be reviewed by
the Secretary, the Administrator informed the Attorney General of
Judge Rippey's decision and Respondent was debarred prior to review
by the Secretary. As the meaning and application of the Act are
still in the formative stage, I too believe it is best that
debarment be stayed until the final agency action takes place.
ORDER
It is HEREBY ORDERED that:
1. Respondent, Technical Career Institute, is ordered to pay
a civil money penalty of $500.00 for its failure to
properly notify the bargaining representative of the
filing of the labor condition application dated April 26,
1993.
2. Respondent, Technical Career Institute, is ordered to pay
a civil money penalty of $500.00 for its failure to
properly notify the bargaining representative of the
filing of the labor condition application dated June 23,
1993.
3. Complainant's complaint against Respondent for
intimidation is DISMISSED.
It is further ORDERED that application of this Decision and
Order to debar Respondent pursuant to §507.855(a)(2) is stayed
for thirty (30) calendar days. Further, if Respondent files a
timely petition for review with the Secretary, the stay of
debarment shall remain in effect until the Secretary issues a final
determination.
ROBERT D. KAPLAN
Administrative Law Judge
DATED: November 4, 1994
Camden, New Jersey
NOTICE TO THE PARTIES: The Administrator of the Wage and
Hour Division or any other party to this proceeding desiring review
of this Decision and Order may petition the Secretary of Labor to
review this Decision and Order. To be effective, such petition
shall be received by the Secretary within 30 calendar days of the
date of this Decision and Order. Copies of the petition shall be
filed with the Secretary at the Office of Administrative Appeals,
U.S. Department of Labor, Room S-4309, Frances Perkins Building,
200 Constitution Ave., NW, Washington, DC 20210. Copies of the
petition shall be served on all parties and on the Administrative
Law Judge. Provisions regarding review rights are set forth at 29
C.F.R. §507.845.
[ENDNOTES]
[1] The following references will be used herein: "A" for
Administrator's exhibits; "C" for Complainant's exhibits; "R" for
Respondent's exhibits; and "TR" for references to the hearing
transcript.
[2] Based upon my review of the record as a whole, except for
the October 19, 1993 and January 11, 1994 LCAs, I agree that no
chargeable violations occurred with respect to the withdrawn
LCAs. With respect to the October 19, 1993 and January 11, 1994
applications, insufficient evidence was submitted to determine
whether proper notice was or was not given. Therefore no
determination is made regarding these two applications.
[3] Complainant also posits that Respondent's employment of H-1B
visa holders is an attempt by Respondent to gain control over the
union. According to Complainant, those members of the union that
are H-1B visa holders are obligated to their employer for
providing the opportunity to work in the United States. (TR 10,
186-187, 190-191) However the deposition testimony of Susan
Lyons, secretary of the affected union, indicates that in her
estimation only 10 of 280-300 union members are non-immigrant
visa holders. (C 2, p. 12) Therefore, I conclude that there is
insufficient evidence to support Complainant's theory.
Furthermore, I fail to see how the Act is applicable to these
allegations.
[4] Contrary to the Administrator's assertion, these violations
are separate and distinct from those adjudicated by Judge Rippey
and ultimately the Secretary. Therefore the imposition of
additional civil money penalties for these violations is not
"redundant."
[5] The parties stipulated that the 1993 date which appears on
the letter is a typographical error. (TR 53)
[6] The Regulation does not limit prohibited threats to those
which pertain to an employment relationship between a complainant
and a respondent.
