Timeliness of brief: The ARB exercised its discretion
to consider the pro se Complainant’s untimely brief
where he did not receive the ALJ’s recommended
decision in a timely manner because the Complainant
was working “over the road” at the time the ALJ's decision was served.
Employer-employee relationship: A respondent carrier
that operated through independent contractor drivers,
paid its independent contractors a percentage of gross receipts, screened drivers to make sure they qualified under its liability insurance and DOT regulations, but did not engage in the hiring or firing decisions of its independent contractors, who were responsible for withholding state and federal taxes and providing workers’ compensation and
unemployment insurance for their own employees, was
not the Complainant’s employer within the meaning of
the STAA.
Friday v. Northwest Airlines, Inc., ARB No. 03-132, ALJ Nos. 2003-AIR-19 and 20 (ARB July 29, 2005)
Discovery; summary decision: The ALJ did not abuse
his discretion in denying the Complainant’s motion for additional discovery filed after the ALJ had limited discovery to the issues presented in the Respondent’s motion for summary decision.
Timeliness of complaint: A complaint that revocation
of the Complainant’s retirement travel pass was in
retaliation for safety complaints was not timely where
the revocation occurred two years prior to the complaint; a
more recent letter merely confirmed that the travel
pass revocation was still in effect.
Adverse employment action: The Respondent's letter to
the Complainant threatening to report him
for the unauthorized practice of law if he appeared as
a representative in a worker’s grievance proceeding
was not adverse action under AIR 21; the letter was not
related to the Complainant’s compensation, terms,
conditions, or privileges as a medically-retired
former employee of the Respondent.
Adverse employment action: The Complainant, a
medically disabled retiree, was banned from the
Respondent’s property and argued that the ban was
related to compensation, terms, conditions, or
privileges of his employment relationship with the
Respondent because it would prevent him from returning
to work. The ALJ found that this was not a cognizable
ground to establish an adverse employment action,
being based on a “a theoretical argument based on a theoretical fact which may never occur.” The ARB affirmed.
Getman v. Southwest Securities, Inc., ARB No. 04-059, ALJ No. 2003-SOX-8 (ARB July 29, 2005)
Protected Activity: The Complainant was a stock analyst appearing before
a company stock review committee. The ALJ erred as a matter of law in holding that
the Complainant's refusal to change her stock rating, done in the presence of her managers, was protected activity. The Board wrote: "In our view, her unspecified 'refusal' [to sign her name to a 'strong buy' recommendation] was not sufficient to 'provide
information' to a person with supervisory authority relating to a violation. In the context of a review committee meeting between an analyst and her supervisor, where
disagreement over a rating may be a normal part of the process, the analyst must communicate a concern that the employer’s conduct constitutes a violation in order to
have whistleblower protection."
Minkina v. Affiliated Physician's Group, ARB No. 05-074, ALJ No. 2005-SOX-19 (ARB July 29, 2005)
Timeliness of request for Board review: Equitable
grounds for tolling the period for requesting Board
review were not established based on the Complainant’s inability to find an attorney nor her confusion over the appeal period. The ALJ’s notice of appeal rights informed her of the process and it was her obligation to read it carefully.
McNeill v. Crane Nuclear Inc., ARB No. 02-002, ALJ No. 2001-ERA-3 (ARB July 29, 2005)
Claim preclusion: Since the Complainant could not have litigated his ERA whistleblower complaint along with his state common law whistleblower complaint in federal court,
a federal court judgment in the state claim did not not bar the DOL proceeding.
Admissibility of evidence of remedial action: The ALJ did not err in receiving into evidence an internal memo detailing remedial actions taken after two engineers had complained of
being fired for objecting to a deficient work package where it was being used for impeachment, as permitted by FRE 407
Adverse employment action: Telling workers to "go home" if they would not do an assigned job is not proof that the workers were fired.
Adverse employment action: Even though an internal memo detailing remedial actions taken by a manager after two engineers had complained of
being fired for objecting to a deficient work package referred to a "termination," other evidence of record established that the person who purportedly fired
the engineers had no authority to do so.
Adverse employment action: Placing a temporary "administrative hold" on the unrestricted access of two workers was not adverse employment action where such action did not sever the employment relationship or change
the workers' clearance status; the Board found that the record did not support the Complainant's claim that this action harmed his job prospects at nuclear facilities
because he would henceforward be required to report that his unrestricted access clearance had been denied at the Respondent's facility.
Adverse employment action: The Respondent did not engage in
adverse employment action where the Complainant suffered, at most, only temporary unhappiness. The record established that a manager immediately and thoroughly aborted any adverse
consequences when he recognized that the matter had not been properly handled by the Complainant's immediate supervisor.
Sabin v. Yellow Freight System, Inc., ARB No. 04-032, ALJ No. 2003-STA-5 (ARB July 29, 2005)
Title: Final Decision and Order Dismissing Complaint
Motion for stay: The ALJ did not abuse his discretion
in denying the Complainant’s motion for a stay
presented on the eve of the hearing because he wanted
to continue the STAA action until the resolution of a
state court action he intended to file (the
Complainant not wanting to pay attorney’s fees for two actions). The Complainant had ample notice of the hearing date and gave no reason for waiting until the eve of the hearing to present his motion.
Withdrawal of objections to findings: When OSHA has
found against a complainant and the complainant
withdraws his objections to the findings, the result
is a final order upholding the OSHA findings. The ALJ’s dismissal of the matter under such circumstances is “with
prejudice” insofar as a complainant could not thereafter refile a complaint in the DOL alleging the same facts.
Costs imposed against complainant: The ALJ did not have the authority to award to the
Respondent $150 for the attendance of its witness on
the scheduled hearing date where the Complainant
withdrew his objections to the OSHA findings at the
hearing. The ARB distinguished Hester v. Blue Bell
Servs., 1986-STA11 (Sec’y July 9, 1986), because this
was not a case in which the Complainant was allowed to
take a voluntary dismissal conditioned on payment of
the opposing parties’ costs.
Santiglia v. Sun Microsystems, Inc., ARB No. 03-076, ALJ No. 2003-LCA-2 (ARB July 29, 2005)
Case type: Labor Condition Application (H-1B non-immigrant worker)
Summary:
Posting and Public Access; Substantial and Wilful Violations: The ARB affirmed the ALJ's finding that the Respondent violated
the posting and public access requirements of the Immigration and Nationality Act but that neither of these violations was substantial or willful. The ARB also affirmed the ALJ's determination that she would not assess
any civil money penalties but only order the Respondent to change its posting practices. The Respondent had posted one notice at headquarters and one notice the worksite rather than two at the worksite.
The ALJ found that the Prosecuting Party had been denied access for several months, but that this was not a substantial or willful violation because the Prosecuting Party had been given access both prior to and afterwards, and the
reason he had been denied access was because of employee concerns over his past angry behavior while reviewing the files.
Withdrawal of Administrator: The ALJ did not unfairly prejudice the Prosecuting Party in granting Administrator's motion to withdraw where the Administrator was not a party when the Prosecuting Party requested a hearing and
did not choose to exercise her discretion to intervene or appear as amicus curiae. The effect of the withdrawal had been that ESA's investigators were not made available to testify.
Burden of proof: The regulation at 20 C.F.R. § 655.705(c)(5), which states that “The employer shall develop sufficient documentation to meet its burden of proof with
respect to the validity of the statements made in its LCA and the accuracy of information
provided, in the event that such statement of information is challenged” does not change the Prosecuting Party's
burden of proof at the hearing; the party who requests a hearing before an ALJ in an LCA case is the prosecuting party.
Motion in limine: ALJ properly granted motion in limine requesting exclusion of an allegation that the Respondent filed improper
"blanket LCAs" where this allegation had not been included in the complaint filed with or investigated by Wage and Hour.
Jurisdiction to determine what constitutes a speciality occupation: The ARB affirmed the ALJ's ruling that she did not have jurisdiction to rule on the Prosecuting Party's argument that the
positions for which the Respondent filed LCAs are not “specialty occupations” and that, therefore, the LCAs should not have been approved; only the INS (USCIS)
has the authority to determine what constitutes a “specialty occupation.” See 20 C.F.R. § 655.715 and 20 C.F.R. § 655.705(b).
Hearsay: Hearsay is admissible in administrative proceedings concerning the INA. See 20 C.F.R. § 655.825(b).
Public access file; prevailing wage rate: The ARB affirmed the ALJ's interpretation of 20 C.F.R. § 655.760 (a)(2) as not requiring an employer to make available to the public the specific wage rate it pays to
specific H-1B workers.
McDowell v. Eagle Express Lines, Inc., ARB No. 04-095, ALJ No. 2004-STA-32 (ARB July 28, 2005)
Untimely filing of complaint: The ARB affirmed the ALJ’s holding that the complaint was untimely filed.
Ass't Sec'y & Briney v. Exel Logistics, ARB No. 04-075, ALJ No. 2004-STA-5 (ARB July 27, 2005)
Title: Final Order Approving Settlement and Dismissing Complaint
Link: PDF Case type: STAA Whistleblower
Summary:
Approval of settlement agreement.
McIntyre v. Merrill Lynch Pierce Fenner & Smith, Inc., ARB No. 04-055, 2003-SOX-23 (ARB July 27, 2005)
Title: Final Decision and Order Dismissing Appeal
Link: PDF Case type: SOX Whistleblower
Summary:
Removal to District Court: The ARB dismissed the appeal where the Complainant had begun a proceeding in U.S.
District Court seeking a de novo hearing on his SOX claim. The record did not show that the Complainant
ever notified the ALJ or the ARB of this suit until after the ARB issued a briefing schedule.
Shaikh v. Vision Systems Group, ARB No. 04-094, ALJ No. 2004-LCA-5 (ARB July 27, 2005)
Title: Final Decision and Order Dismissing Complaint with Prejudice
Link: PDF Case type: Labor Certification Application (H-1B non-immigrant worker)
Summary:
Withdrawal of Appeal: The Complainant took an appeal of
an ALJ decision in which he found that the Respondent did not owe the Complainant back wages.
The ARB approved a withdrawal of the appeal which had been agreed to in a settlement reached in state court. The Respondent
had to seek enforcement actions in the state court to get the Complainant to comply with his agreement
to withdraw the ARB appeal.
Stinger v. Science & Engineering Associates, Inc., ARB No. 05-001, ALJ No. 2004-ERA-20 (ARB July 27, 2005)
Title: Final Decision and Order Dismissing Appeal
Link: PDF Case type: ERA Whistleblower
Summary:
Interlocutory appeal; mootness: The ARB dismissed an interlocutory appeal of the ALJ's refusal to accept the Complainant's attorney's entry of appearance.
The Complainant failed to respond to the ARB's order to show cause why the interlocutory appeal should not be
dismissed as moot given that the Complainant had not appealed the ALJ's later recommended decision and order on the
merits.
Edmonds v. Tennessee Valley Authority, ARB No. 05-002, ALJ No. 2004-CAA-15 (ARB July 22, 2005)
Title: Final Decision and Order Dismissing Appeal
Link: PDF Case type: CAA whistleblower/FOIA request
Summary:
Dismissal of appeal; mootness: The Complainant requested the ARB to review a letter from the Chief ALJ responding to
a FOIA request filed by the Complainant's counsel informing the Complainant that his
counsel would not be permitted to file future FOIA requests on behalf of the Complainant
because of an order issued by the Associate Chief ALJ denying the
Complainant's attorney the right to represent parties before OALJ. The ARB issued an order
directing the Complainant to demonstrate why his request was not moot
given the Board’s affirmance of the Associate Chief ALJ's order. (The Board also
expressed doubt that it had the authority to review the Chief ALJ's letter at all).
The Complainant did not respond and the ARB consequently dismissed the appeal.
Administrator, Wage & Hour Division, USDOL v. Wings Digital Corp., ARB No. 05-090, ALJ No. 2004-LCA-30 (ARB July 22, 2005)
Title: Final Decision and Order Dismissing Appeal
Link: PDF Case type: Labor Certification Application (H-1B non-immigrant worker)
Summary:
Timeliness of appeal: The ALJ had found that the Respondent owed over $78,000 in back wages and other liabilities.
The Respondent's appeal to the ARB was several days late.
The ARB held that neither the illness of the Respondent's representative nor his misinterpretation
of the regulations established meritorious grounds
for equitable tolling. The record indicated that the representative had
apparently drafted the appeal within the limitations period despite a serious headache and fever, but had failed to either fax the appeal to
the Board or telephone to request an enlargement of time. The ARB rejected the misinterpretation argument where the
ALJ's notice of appeal rights provided unambiguous notice of the steps necessary to perfect an appeal.