Administrative Review Board Decisions

The following case summaries were created by the Administrative Review Board staff.

Gulden v. Exxon Mobil Corporation, ARB No. 2023-0050, ALJ Nos. 2023-SOX-00021, -00022 (ARB Feb. 29, 2024) (Decision and Order)

INTERLOCUTORY APPEAL; COLLATERAL ORDER EXCEPTION; TIMELINESS; DENYING PETITION FOR INTERLOCUTORY REVIEW

In Gulden v. Exxon Mobile Corporation, ARB No. 2023-0050, ALJ Nos. 2023-SOX-00021, -00022 (ARB Feb. 29, 2024), Complainants filed a joint whistleblower complaint with OSHA, alleging that Respondent retaliated against them in violation of the SOX by terminating their employment. OSHA found reasonable cause to believe that Respondent violated the SOX and ordered Respondent to "immediately reinstate both Complainants to their former position. Such reinstatement shall include all salary, benefits, rights and seniority that Complainants would have enjoyed had they never been illegally discharged. Such reinstatement is not stayed by an objection to this order." The ARB found that this language was consistent with the SOX's implementing regulations, which provide, "[i]f a timely objection is filed, all provisions of the preliminary order will be stayed, except for the portion requiring preliminary reinstatement, which will not be automatically stayed."

Respondent requested a hearing before an ALJ, but neither reinstated Complainants nor filed a motion to stay the order of reinstatement.

Complainants filed a complaint and emergency motion to show cause in the United States District Court of New Jersey, seeking an order to enforce Respondent's compliance with OSHA's preliminary reinstatement order. The District Court dismissed the action, finding that the court did not have subject matter jurisdiction because the order of reinstatement was not a final order of the Department of Labor. Complainants appealed the dismissal to the Third Circuit. As of the date of the ARB's order, the appeal was still pending.

After the District Court granted Respondent's motion to dismiss, Complainants filed a motion to enforce OSHA's reinstatement order with the ALJ. The ALJ denied the motion, finding that whether OSHA's order is enforceable is a question properly before the Article 3 courts and that the ALJ lacked enforcement authority. Complainants filed an interlocutory appeal with the ARB.

TIMELINESS; THE ARB TREATS COLLATERAL ORDERS AS FINAL ORDERS FOR APPEAL AND TIMELINESS PURPOSES

Citing 28 U.S.C. § 1292(b), Respondent contended interlocutory appeals must be filed within ten days after entry of the order being appealed. Because Complainants filed their interlocutory appeal fourteen days after the ALJ issued the Ruling, Respondent contended Complainants' interlocutory appeal was untimely. However, the ARB stated that ten-day deadline only applies in instances where the interlocutory appeal has been certified by the trial court. In this case, the Complainants' interlocutory appeal was not certified by the ALJ; instead, they sought review under the collateral order doctrine. In collateral order interlocutory appeals, the ARB applies the deadline for appeals of ordinary final orders under the applicable statute, which, in the case of SOX, is within fourteen days of the date of the ALJ's decision. Because Complainants filed fourteen days after the ALJ's ruling, the ARB found that Complainants filed a timely collateral order appeal.

INTERLOCUTORY REVIEW; AS A MATTER OF DISCRETION, THE ARB FOUND THAT NOT ACCEPTING THE PETITION FOR REVIEW DID NOT MAKE THE ALJ'S ORDER EFFECTIVELY UNREVIEWABLE

As the issue was not certified pursuant to 28 U.S.C. § 1292(b), the ARB analyzed whether the ALJ's subpoena order satisfied the Collateral Order Exception based on the three factors identified in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949).

The ARB may consider reviewing an interlocutory order that meets the "collateral order" exception, which applies if the appealed decision belongs to that "small class [of decisions] which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." To fall within the narrow "collateral order" exception to the traditional finality rule, the moving party must establish that the order being appealed: (1) conclusively determines the disputed question; (2) resolves an important issue completely separate from the merits of the action; and (3) would be effectively unreviewable on appeal from a final judgment. This exception is "strictly construe[d]" to avoid "unnecessarily protracte[d] litigation." If the ALJ's Order "fails to satisfy any one of these requirements, it is not appealable under the collateral order doctrine." And even if the order meets the requirements, the ARB's decision to accept the petition remains discretionary.

As a matter of discretion, the ARB found that not accepting the petition for interlocutory review did not make the ALJ's order effectively unreviewable. Complainants' appeal of the District Court's order was pending before the Third Circuit. Both Complainants and the Acting Secretary of Labor asked the Circuit Court to reverse the District Court's order and find that the SOX authorizes judicial enforcement of post-investigation preliminary orders as well as final orders. Given the Secretary's long-held position, the ARB found that the most efficient way to direct the course of the litigation was to remand this matter to the ALJ to continue the remaining agency proceedings on the complaint while affording the Third Circuit the opportunity to rule on the judicial enforcement of the preliminary order.

PRACTICAL EFFECTS TEST

Complainants asserted that the ARB could also review this matter under the practical effects test. The practical effects test allows for immediate appeal of orders that (1) have the practical effect of an injunction, and (2) can be "effectively challenged only by immediate appeal" because the interlocutory order "might have a serious, perhaps irreparable, consequence."

As of the date of the ARB's order, Complainants' appeal of the District Court's order was pending before the Third Circuit. Before the Third Circuit, Complainants opined that a merits decision by the ALJ would not moot the appeal "because the issue is capable of repetition, yet evading review." Based on this, the ARB concluded that the practical effects test did not apply.

Fagan v. Department of the Navy, ARB No. 2023-0006, ALJ No. 2021-CER-00001 (ARB Feb. 28, 2024) (Decision and Order)

ALJ SUBPOENA AUTHORITY; THE CERCLA AND THE SDWA DO NOT PROVIDE AN ALJ WITH THE AUTHORITY TO ISSUE THIRD-PARTY SUBPOENAS

In Fagan v. Department of the Navy, ARB No. 2023-0006, ALJ No. 2021-CER-00001 (ARB Feb. 28, 2024), Complainant filed a complaint against Respondent alleging that it terminated her employment because she engaged in conduct protected under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and the Safe Drinking Water Act (SDWA). On October 7, 2022, an ALJ issued an Order Denying Complainant's Motion for Subpoenas for Attendance at Hearing (Order Denying Subpoenas), concluding that he did not have subpoena authority under either statute. At Complainant's request and pursuant to 28 U.S.C. § 1292(b), the ALJ certified for interlocutory review the question of "whether ALJs have subpoena authority in whistleblower and other proceedings with trial-type hearings but no express statutory authorization." Complainant timely filed a petition for interlocutory review with the ARB. The ARB accepted the interlocutory appeal and a concurrent Order Allowing Filing of Amicus Curiae Briefs.

ADMINISTRATIVE PROCEDURE ACT (APA); THE APA DOES NOT AUTOMATICALLY CONFER SUBPOENA AUTHORITY

The ARB found that the APA does not confer subpoena authority. The CERCLA and the SDWA both grant the Secretary of Labor the authority to conduct record hearings on whistleblower claims. Section 554 of the APA delineates certain procedural rights afforded to parties in administrative hearings conducted "on the record." Among those rights includes that "[s]ubject to published rules of the agency and within its powers, employees presiding at hearings may . . . issue subpoenas authorized by law." Similarly, the ARB found that the OALJ Rules of Practice and Procedure similarly provide that a "judge may issue a subpoena authorized by statute or law." The ARB found that a straightforward reading of this language establishes that Congress grants subpoena power to the Secretary of Labor on a statute-by-statute basis. The ARB concluded that the APA does not automatically infer subpoena power based on the authority to conduct hearings.

SUBPOENA AUTHORITY; THE CERLCA AND THE SDWA DO NOT EXPLICITLY OR IMPLICITLY PROVIDE ALJS WITH THE AUTHORITY TO ISSUE SUBPOENAS TO THIRD-PARTY WITNESSES

The ARB also found that the CERCLA and the SDWA did not provide subpoena authority. First, the ARB found that the text of the CERCLA neither explicitly nor implicitly provided subpoena authority. Because the text of the statute did not provide an answer, the ARB looked to the statutory framework. When Congress enacted the CERCLA, it granted both the whistleblower provision and subpoena authority to an arbitration board that was charged with resolving hazardous substances claims, but did not grant subpoena authority to the Secretary of Labor. The ARB found that variations in language within a statute were presumed to be intentional, and that when Congress includes particular language in one section of a statute and omits it from a neighbor, the difference in language conveys a difference in meaning. Thus, the ARB concluded that Congress did not intend to authorize subpoena power under the CERCLA's whistleblower provision.

Next, the ARB found that the SDWA did not authorize subpoena power. Like the CERCLA, the SDWA does not expressly provide for ALJ subpoena power. However, unlike the CERCLA, it does not provide subpoena authority under any other provision, either. As such, the ARB examined the legislative history and purpose of the SDWA. In Bobreski v. U.S. E.P.A., 284 F. Supp. 2d 67 (D.D.C. 2003), the district court found that the SDWA's legislative history demonstrated that Congress did not intend to provide subpoena authority based on the SDWA's legislative history. The court found that Congress intended the SDWA to have the same whistleblower protections as other environmental statutes, which did not authorize subpoena power for whistleblowers. The ARB agreed with the district court's reasoning and conclusion in Bobreski that the SDWA does not authorize an ALJ to issue subpoenas to third-party witnesses.

Complainant contended that the ARB should follow Childers v. Carolina Power & Light. Co., ARB No. 1998-0077, ALJ No. 1997-ERA-00032, slip op. at 8-10 (ARB Dec. 29, 2000), rather than Bobreski. In Childers, the ARB found, in dictum, that ALJs have the authority to issue subpoenas in formal trial-type hearings under the Energy Reorganization Act. The ARB found that Childers was not controlling because the discussion of subpoena authority was dicta and because it did not arise from either the CERCLA or the SDWA. In addition, the ARB further reasoned that, in Childers, the ARB highlighted the importance of a twenty-four-year gap between the enactment of the relevant sections of the ERA, whereas the CERCLA provisions authorizing subpoenas for one provision while not granting subpoena authority in the whistleblower provision was enacted at the same time by the same Congress.

REMEDIAL PURPOSE; THE REMEDIAL PURPOSE OF THE CERCLA AND THE SDWA DID NOT PROVIDE SUBPOENA AUTHORITY

The ARB further found that the remedial purpose of the CERCLA and the SDWA did not provide subpoena power. The ARB agreed with the ALJ that, while sympathetic to the concerns of Complainant and amici curiae, Congress has not granted subpoena power under the CERCLA and the SDWA. The ARB further found that whistleblower complainants have several methods available to obtain information from employers or other parties through the discovery process, and that complaints can obtain third-party information via the Freedom of Information Act.

Complainant contended that an ALJ's authority to issue subpoenas need not be explicitly granted but can be implied based on the power to conduct a hearing on the record and cited to several cases. However, the ARB found that the cases Complainant cited were inapposite and addressed an agency's authority to regulate or obtain information, not a private party seeking to obtain third-party discovery. Moreover, the ARB found that those cases did not provide that an implied authority existed where Congress already considered the matter. Thus, the ARB concluded that Congress spoke to this issue by not enacting subpoena authority in the CERCLA or the SDWA.

DUE PROCESS; CONGRESS'S DECISION NOT TO INCLUDE SUBPOENA POWER IN THE CERCLA AND THE SWDA DID NOT VIOLATE DUE PROCESS

Lastly, the ARB found that due process did not provide subpoena authority. The ARB found that neither Complainant nor amicus provided a legal argument demonstrating why due process compels the need for subpoena power under the CERCLA and the SDWA. Regardless, the ARB found that Congress's decision not to include subpoena power in the CERCLA and the SDWA did not deprive Complainant of either notice or the opportunity to be heard.

Thus, the ARB affirmed the ALJ's order denying Complainant's motion for subpoenas for attendance at hearing.

M1 Support Services, LP v. Administrator, Wage and Hour Div., USDOL, ARB Nos. 2022-0022, -0023, -0067 (ARB Feb. 23, 2024) (Decision and Order)

In M1 Support Services, LP v. Administrator, Wage and Hour Div., USDOL, ARB Nos. 2022-0022, -0023, -0067 (ARB Feb. 23, 2024), M1 had SCA-covered service contracts with the Army and the Air Force. M1 negotiated CBAs with the International Association of Machinists and Aerospace Workers to provide its service employees on the Army and Air Force contracts with pension benefits through a multi-employer defined-benefit pension plan, referred to as the IAM Fund, that specified an hourly rate for M1 to contribute for each employee. Those pension contributions were incorporated into the Army's and the Air Force's contracts in a CBA-based wage determination under the SCA.

In April 2019, as a result of a funding deficit, the IAM Fund entered "critical status" under the Pension Protection Act (PPA), triggering M1's obligation to make supplemental rehabilitation plan contributions to the plan. M1 and the IAM subsequently agreed to supplemental CBAs in which M1 agreed to increase its contributions "by a compounding 2.5% while the Rehabilitation Plan remains in effect." M1 then sought to have the rehabilitation plan contributions incorporated in its contracts with the Army and the Air Force as revised CBA-based wage determinations. The Army and the Air Force declined to incorporate the supplemental terms in the contracts and/or refused to reimburse M1 for the increased costs of providing the pension benefits.

 M1 then sought a ruling from the Administrator regarding the treatment of the rehabilitation plan contributions under the SCA. The Administrator ruled that the rehabilitation plan contributions were costs "relat[ing] to" fringe benefits under the SCA and, therefore, had to be incorporated in the contracts as revised or supplemental CBA-based wage determinations. However, the Administrator declined M1's request to require the Army and the Air Force to retroactively incorporate appropriate CBA-based wage determinations in the contracts for past contract periods, instead electing to enforce its decision prospectively, only.

M1, the Army, and the Air Force each petitioned the ARB for review of the Administrator's decision. The Army and the Air Force petitioned with respect to the Administrator's decision that the rehabilitation plan contributions had to be incorporated in CBA-based wage determinations. M1 petitioned with respect to the Administrator's decision to decline to enforce its decision retroactively. The ARB affirmed the Administrator in both respects.

REHABILITATION PLAN CONTRIBUTIONS; REHABILITATION PLAN CONTRIBUTIONS MADE PURSUANT TO THE PPA ARE TERMS "RELAT[ING] TO" A FRINGE BENEFIT UNDER THE SCA AND, THEREFORE, MUST BE INCLUDED IN CBA-BASED WAGE DETERMINATIONS

In its determination, the Administrator concluded that supplemental CBA terms reflecting rehabilitation plan payments had to be incorporated in CBA-based wage determinations under 29 C.F.R. § 4.53, which requires CBA-based wage determinations to include "provision[s] relating to" fringe benefits. The Administrator reasoned that the rehabilitation plan payments were terms "relat[ing] to" the pension benefits provided through the IAM Fund because they constituted part of M1's cost to provide the benefits. The ARB agreed, stating: "The rehabilitation plan contributions supplemented M1's base contributions and, in combination with the base contributions, were needed to fund the IAM Fund at a sufficient level to allow it to continue to pay pensions to the service employees. Thus, as the Administrator correctly reasoned, 'essentially, the new payments reflect the true, updated cost of the negotiated IAM Pension Fund defined benefit plan.'"

In reaching this conclusion, the ARB rejected the Army's and the Air Force's attempt to draw a distinction between contributions "directly" for the cost of providing pension benefits, on the one hand, and supplemental contributions for fund "replenishment," on the other. The ARB stated: "The contributions at issue here—whether at the original rate or at the subsequently negotiated rate—simply provide the required fringe benefit." The ARB also rejected the Army's contention that the Administrator's interpretation of "relating to" in the context of fringe benefits was overbroad compared to the meaning and use of the phrase "relating to wages" in the same regulation. The ARB stated that the Army overlooked fundamental differences in the SCA's treatment of wages and fringe benefits and that, under the SCA, "the same type of immediately traceable, one-to-one correlation between the dollars paid by the employer and the fringe benefit received may not exist." Finally, the ARB rejected the Army's and the Air Force's contention that the Administrator's determination was "inconsistent with" the Pension Benefit Guarantee Corporation and the American Rescue Plan Act of 2021, which they argued created a "well-funded, comprehensive scheme to address the problems of severely underfunded pension plans." The ARB concluded that the alternative funding programs did not replace the employer's obligation to make rehabilitation plan payments under the PPA or impact the analysis of whether such payments had to be included in CBA-based wage determinations under the SCA.

REHABILITATION PLAN CONTRIBUTIONS; REHABILITATION PLAN CONTRIBUTIONS ARE NOT FRINGE BENEFITS "REQUIRED BY FEDERAL, STATE, OR LOCAL LAW"

Although the SCA generally requires SCA-covered contracts to specify fringe benefits to be provided under the contracts, contracts need not specify fringe benefits "required by Federal, State, or local law to be provided by the contractor." The Air Force argued that rehabilitation plan contributions are fringe benefits "required by Federal [law]" because M1 was required to make them under the PPA. The ARB disagreed. Only benefits required by federal or other law are excluded from the SCA's requirements. The ARB stated that although the PPA may require M1 to incur additional costs to provide benefits, it did not obligate M1 to offer pension benefits in the first place. Consequently, the SCA did not exclude the increased costs of the benefit from wage determinations.

REHABILITATION PLAN CONTRIBUTIONS; REHABILITATION PLAN CONTRIBUTIONS ARE NOT COSTS INCURRED BY THE CONTRACTOR

The Air Force also argued that rehabilitation plan contributions should be excluded from wage determinations under 29 C.F.R. § 4.172, which provides that "administrative costs which may be incurred by the contractor" in providing a benefit are not reflected in wage determinations. According to the Air Force, the rehabilitation plan contributions "very likely will fund an assortment of administrative expenses or business costs necessary to run and manage the plan." The ARB observed that the regulatory carveout for administrative expenses applies only to those costs which are incurred "by the contractor." Any portion of M1's rehabilitation plan contributions that went towards the IAM's Fund's administrative expenses would be incurred by the plan, not the contractor. Thus, the carveout did not apply to rehabilitation plan payments to the IAM Fund.

RETROACTIVE APPLICATION OF WAGE DETERMINATION; ADMINISTRATOR DID NOT ABUSE DISCRETION IN DECLINING TO REQUIRE RETROACTIVE INCORPORATION OF WAGE DETERMINATION

The ARB affirmed the Administrator's decision to decline to require the Army and the Air Force to retroactively incorporate CBA-based wage determinations reflecting the rehabilitation plan payments for past contract periods, emphasizing the broad discretion afforded to the Administrator to make a retroactivity decision. In particular, the ARB concluded that the Administrator did not abuse its discretion in determining that the Army and the Air Force did not act in bad faith in taking the position that rehabilitation plan payments did not have to be incorporated in CBA-based wage determinations, and that there would be little or no recovery for service employees if the decision were enforced retroactively.

Regarding the lack of bad faith, the Administrator explained that the case involved a novel legal issue of first impression at the intersection of several federal laws. The ARB determined that the Administrator did not abuse its discretion in finding that the agencies acted in good faith in steadfastly maintaining their defensible, although ultimately incorrect, legal position.

Regarding the impact on service employees, M1 argued that the fact that it paid its service employees in accordance with the SCA should weigh in favor of retroactivity, so that it is not punished for complying with its obligations under the law. The ARB determined that M1's compliance did not invalidate the Administrator's conclusion that retroactivity would not further the purposes of the SCA, which protects service employees, not contractors.

The ARB also rejected M1's arguments that the Administrator abused its discretion by giving no weight to other factors or considerations. M1 contended, for example, that applying the decision retroactively would have little disruption to the service contracts and would impose minimal administrative burden on the Army and the Air Force. However, the ARB observed that the dispute reached back more than two years before the Administrator issued its ruling and concerned millions of dollars in costs and potential reimbursement by the agencies. The ARB also observed that several of the contracts were approaching their expected completion. The ARB recognized that, in similar circumstances, it had held that retroactivity "could be an overly onerous administrative and economic burden to the" contracting agency and could "constitute a severe disruption in the agency procurement practices."

Finally, the ARB rejected M1's argument that the Administrator failed to appropriately consider the fact that the agencies "expressly bore the financial risk of the increased cost of pension contributions" pursuant to Federal Acquisition Regulation (FAR) 52.222-43, which requires contracting agencies to reimburse contractors for increased wage and fringe benefit costs "made to comply with" a wage determination. The ARB determined that M1 did not adequately explain why this cost-shifting provision must be regarded as "the most important factor," let alone why it overrode the other factors considered by the Administrator. As the Administrator reasoned, M1's argument regarding the FAR concerned, "essentially, which party should bear the costs of" the rehabilitation plan payments. The ARB concluded that the Administrator reasonably considered this to be a contractual dispute beyond its exclusive jurisdiction which should be afforded little weight, especially compared to other relevant considerations, like the recovery (or lack thereof) of back wages for the contractor's service employees, which directly bear on the primary and fundamental purposes of the SCA.

RETROACTIVE APPLICATION OF WAGE DETERMINATION; ADMINISTRATOR DID NOT ABUSE DISCRETION IN DECLINING TO STATE WHETHER ITS UNDERLYING INTERPRETIVE CONCLUSION APPLIED RETROACTIVELY

Although the Army and the Air Force declined to incorporate the rehabilitation plan contributions into some of their contracts with M1, they did incorporate the new terms into others. Even so, the agencies still declined to reimburse M1 for those contributions. M1, therefore, asked the Administrator to declare that its underlying "interpretive conclusion" applied retroactively, so that it could seek a price adjustment under the FAR for past option periods on the contracts in which the rehabilitation plan contributions had been incorporated. The Administrator declined to state whether its interpretation applied retroactively because it would not weigh in on the reimbursement dispute and the parties' respective rights and obligations under the contract, which were issues beyond its exclusive jurisdiction.

The ARB affirmed the Administrator's decision. The ARB observed that M1 conceded that its goal in requesting the Administrator declare that its interpretation extended retroactively to past contract periods was to aid M1 in its eventual contract enforcement action against the agencies. The ARB stated that M1 could pursue its contract action, and the resolution of the parties' respective rights and obligations for past contract periods, in a claim under the Contracts Dispute Act (CDA), which sets forth a comprehensive scheme for resolving contractual disputes between a contractor and a contracting agency. The ARB observed that the Administrator has interpreted the SCA and made a ruling that rehabilitation plan contributions were "relat[ed] to" a fringe benefit under the SCA. "The remaining issue—the impact of that interpretation on the parties' respective rights and obligations under the Contracts—is a matter that the Administrator reasonably left to resolution by and through other, appropriate forums."

RETROACTIVE APPLICATION OF WAGE DETERMINATION; ADMINISTRATOR DID NOT ABUSE DISCRETION IN DECLINING TO RULE ON WHETHER M1 TIMELY SUBMITTED NOTICE OF THE SUPPLEMENTAL CBA TERMS TO THE ARMY AND THE AIR FORCE

Finally, M1 argued that the Administrator erred in declining to confirm that M1 submitted notice of the supplemental CBA terms to the Army and the Air Force in time for them to be incorporated into wage determinations for past contract periods. The ARB stated that whether M1 submitted the supplemental terms in time for them to be incorporated into wage determinations for past contract periods would only be relevant if the Administrator required the Army and the Air Force to retroactively incorporate wage determinations into the Contracts, which it did not do.

M1 alternatively argued that the timeliness of its submissions was also relevant to the "independent" issue of whether M1's "direct statutory obligations" under SCA Section 4(c) automatically applied by operation of law to past contract periods. Section 4(c), which requires a successor contractor to pay service employees no less than the wages and fringe benefits paid under a predecessor contractor's CBA, is "self-executing" if notice of the CBA terms to the contracting agency is timely submitted even if those wages and fringe benefits are not incorporated in a wage determination. Thus, M1 contended that if it timely submitted the supplemental CBA terms to the Army and the Air Force, then, pursuant to Section 4(c), the supplemental CBA terms became part of M1's SCA "obligations" by operation of law, even if the Administrator declined to compel the Army or the Air Force to retroactively incorporate the terms in a wage determination.

The ARB stated that the "obligation" under Section 4(c) to which M1 referred is the duty of a contractor, like M1, to pay not "less than the wages and fringe benefits the service employee would have received under the predecessor contractor, including . . . any prospective increases in wages and fringe benefits provided for in a [CBA]." The ARB stated that there did not appear to be any question that M1 satisfied its obligation to pay the required fringe benefit rate on behalf of its service employees, in accordance with the supplemental CBA terms. Therefore, the ARB determined it would be fruitless to require the Administrator to determine whether the CBA terms were submitted in time to "trigger Section 4(c) obligations," where there was no dispute that those obligations were fulfilled.

Lamm v. Indiana Harbor Belt Railroad Co., ARB No. 2024-0008, ALJ No. 2021-FRS-00014 (ARB Feb. 20, 2024) (Order of Dismissal)

ORDER OF DISMISSAL; APPEAL DISMISSED WHERE COMPLAINANT FILED ORIGINAL ACTION IN DISTRICT COURT

In Lamm v. Indiana Harbor Belt Railroad Co., ARB No. 2024-0008, ALJ No. 2021-FRS-00014 (ARB Feb. 20, 2024), the ARB dismissed Complainant's complaint because he filed an original de novo complaint in a United States District Court.

Saini v. Hospital Care Consultants, Inc., ARB Nos. 2024-0021, -0022, ALJ No. 2022-LCA-00015 (ARB Feb. 16, 2024) (Order of Remand)

INDICATIVE RULING; ARB REMANDED CASE TO ALJ UPON ALJ'S ISSUANCE OF INDICATIVE RULING UNDER 29 C.F.R. § 18.94

In Saini v. Hospital Care Consultants, Inc., ARB Nos. 2024-0021, -0022, ALJ No. 2022-LCA-00015 (ARB Feb. 16, 2024), Complainant and Respondent filed cross-appeals challenging various aspects of the ALJ's D. & O. finding that Respondent violated H-1B program requirements. While the appeals were pending with the ARB, Complainant submitted an email to the ALJ noting a calculation error in the litigation costs awarded to Complainant. The ALJ subsequently issued an Indicative Ruling, observing that since the matter had been appealed, the ALJ lacked jurisdiction to issue further orders or rulings in the case, but that, pursuant to 29 C.F.R. § 18.94, if the Board were to remand the matter, the ALJ would amend the order to reflect the correct amount of litigation costs.

Section 18.94 provides that "[i]f a timely motion is made for relief that the judge lacks authority to grant because a petition for review has been docketed and is pending, the judge may [state] that the judge would grant the motion if the reviewing body remands for that purpose." The ARB remanded the case to the ALJ to issue an order consistent with the Indicative Ruling.

Kirschmann v. Hampton Roads Transit, ARB No. 2023-0002, ALJ No. 2021-NTS-00006 (ARB Feb. 14, 2024) (Decision and Order)

In Kirschmann v. Hampton Roads Transit, ARB No. 2023-0002, ALJ No. 2021-NTS-00006 (ARB Feb. 14, 2024), Complainant worked as a bus driver for Respondent. After an extensive array of progressive disciplinary charges and escalating levels of discipline under Respondent's personal conduct and conduct towards passengers policies, Respondent terminated Complainant's employment. Complainant filed a complaint against Respondent alleging that the termination of her employment constituted retaliation under the STAA and the NTSSA. An ALJ granted summary decision in favor of Respondent, concluding that Complainant failed to establish that she engaged in protected activity under the STAA or the NTSSA. The ARB affirmed.

ADEQUATELY BRIEFING APPEAL; COMPLAINANT FAILED TO MEET BURDEN TO ADEQUATELY BRIEF HER APPEAL

The ARB emphasized that parties in their briefs to the Board must establish the factual basis of their claims and defenses with citations to the record and relevant legal authority in support of the relief they request. If a party fails to do so, and instead relies upon bare conclusions, the party forfeits its position on appeal. In this case, the ARB stated that Complainant failed to adequately or coherently support her appeal with citations to record evidence or relevant legal authority. It determined that Complainant's pleadings were, therefore, per se insufficient to support her burden to demonstrate that the ALJ erred. Nevertheless, given Complainant's unrepresented status, the ARB elected to independently review the ALJ's decision to determine whether it accorded with the law.

PROTECTED ACTIVITY; ALJ PROPERLY GRANTED SUMMARY DECISION WHERE COMPLAINANT FAILED TO RAISE A GENUINE ISSUE OF MATERIAL FACT THAT SHE ENGAGED IN PROTECTED ACTIVITY

Complainant alleged that she engaged in several different protected activities under the STAA and the NTSSA. The ARB affirmed the ALJ's determination that none of the activities cited by Complainant were protected.

First, Complainant alleged that she engaged in protected activity when she took breaks from her route or when she complained about transit passengers interfering with her ability to take breaks. The ARB recognized that taking a break can, in some instances, implicate the sort of safety issue that may constitute protected activity under the STAA or the NTSSA. For example, the ARB noted the "driver fatigue rule," which prohibits a driver from operating a commercial motor vehicle while suffering from an unsafe level of fatigue. However, Complainant did not contend that she was suffering from fatigue, nor did she contend that her hours on the road exceeded safety protocols or raise any other safety concern related to her breaks. Instead, Complainant simply contended the mere act of taking a break was protected. The ARB agreed with the ALJ, however, that merely taking a break or complaining about passengers interfering with a break, without more, did not, as a matter of law, raise the type of safety concern protected by the STAA or the NTSSA. 

Second, Complainant alleged that she engaged in protected activity when she operated a bus while suffering from bronchitis, which she later reported to Respondent. However, the ARB stated that Respondent had already vetted the decision to terminate Complainant's employment in the weeks prior to the time she finally reported that she operated a bus while sick, which precluded the possibility that the latter caused the former. Moreover, the ARB agreed with the ALJ that Complainant's allegation lacked a fundamental transportation safety concern under the STAA or the NTSSA. Although there could be certain circumstances where working while sick could pose a safety risk, Complainant failed to put forth any actual evidence that she subjectively believed, or that a reasonable person in her situation could believe, that operating a bus with bronchitis posed such a hazardous safety condition. Complainant did not refuse to drive because she was sick, nor did she complain that she was too sick to drive or complain that driving would be dangerous in her condition. Thus, Complainant's allegation was the type of "rank speculation" that could not support a claim of protected activity.

Third, Complainant alleged that she engaged in protected activity when she complained that safety vests were distributed inequitably and that there was a route change without the appropriate planning process. Once again, the ARB stated that it was indisputable that Complainant did not provide any information regarding these allegations to any decisionmaker prior to the termination of her employment. Additionally, even if she had, the ARB stated that these complaints lacked the same readily recognizable transportation safety concern and suffered the same lack of proof that belied her other allegations of protected activity.

Finally, Complainant alleged that she engaged in protected activity when she stated to a passenger "we can have someone call OSHA," "I'll be talking to OSHA," they may "take our funding," and "you'll be blessed when they take our funding." These statements were captured by videos that were, allegedly, viewed by Respondent's decisionmakers. Complainant argued that, upon hearing these statements, Respondent perceived Complainant as about to engage in protected activity. The ARB recognized that the STAA prohibits a person from discriminating against an employee because the person "perceives that the employee has filed or is about to file a complaint . . . related to a violation of a commercial motor vehicle safety or security regulation, standard, or order," and that the NTSSA similarly protects an employee who is "perceived by the employer" to have engaged in protected activity. However, the ARB concluded that Complainant's statements were too vague to support a reasonable perception that Complainant was about to engage in protected activity.

Administrator, Wage and Hour Div., USDOL v. Deggeller Attractions, Inc., ARB No. 2024-0007, ALJ No. 2018-TNE-00008 (ARB Feb. 14, 2024) (Decision and Order Dismissing Petition for Review)

ORDER OF DISMISSAL; RESPONDENT FAILED TO FILE AN OPENING BRIEF AND RESPONSE TO ORDER TO SOW CAUSE

In Administrator, Wage and Hour Div., USDOL v. Deggeller Attractions, Inc., ARB No. 2024-0007, ALJ No. 2018-TNE-00008 (ARB Feb. 14, 2024), the ARB dismissed Respondent's petition for review for failing to file an opening brief and for failing to respond to the Board's Order to Show Cause.

The Estate of Daniel A. Ayres by Kimberly Ayres, Administrator v. Weatherford U.S., L.P., ARB Nos. 2018-0006, -0074, ALJ No. 2015-STA-00022 (ARB Feb. 14, 2024) (Decision and Order Approving Settlement)

VOLUNTARY DISMISSAL; APPROVAL OF SETTLEMENT

In The Estate of Daniel A. Ayres by Kimberly Ayres, Administrator v. Weatherford U.S., L.P., ARB Nos. 2018-0006, -0074, ALJ No. 2015-STA-00022 (ARB Feb. 14, 2024), the Board approved Complainant and Respondent's Joint Motion to Approve Settlement Agreement. The case was before the ARB following the United States Court of Appeals for the Sixth Circuit's remand to determine the merits of a request by Complainant for an additional award of attorney fees and costs for work performed before the Sixth Circuit. On January 11, 2024, the ARB issued a Decision and Order Awarding Attorney Fees and Costs.

Complainant and Respondent filed a Joint Motion to Approve Settlement Agreement, which included a copy of the proposed settlement. The parties requested that the Board approve the settlement agreement.

The ARB approved the parties' settlement agreement as fair, adequate, and reasonable, and not in contravention of the public interest. The ARB noted that this determination was restricted only to the STAA case over which it has jurisdiction. The ARB also noted that the parties' submissions, including the settlement agreement, remain subject to the Freedom of Information Act. The ARB further noted that it construed the language of the agreement's confidentiality clause as allowing Complainant to communicate with or provide information to state and federal authorities about suspected violations of law involving Respondent. Lastly, the ARB construed the parties' provision that the agreement shall be interpreted under the laws of the State of Ohio as not limiting the authority of the Secretary of Labor, the Board, and any federal court regarding any issue arising under the STAA.