USDOL/OALJ Reporter
Decisions of the Administrative Review Board
ay 2016

  • Rosenfeld v. Cox Enterprises, Inc. , ARB No. 16-026, ALJ No. 2014-SOX-33 (ARB May 24, 2016)
    Final Decision and Order Dismissing Appeal PDF


    Summary :

    APPELLATE BRIEF; ARB ACCEPTS COMPLAINANT'S LATE FILED BRIEF BECAUSE OF COMPLAINANT'S PRO SE STATUS AND UNFAMILIARITY WITH ARB'S ELECTRONIC FILING SYSTEM, BUT DOES NOT REQUIRE REPLY BRIEF FROM RESPONDENT WHERE COMPLAINANT'S BRIEF FAILED TO ADDRESS THE BASIS FOR THE ALJ'S DECISION

    In Rosenfeld v. Cox Enterprises, Inc. , ARB No. 16-026, ALJ No. 2014-SOX-33 (ARB May 24, 2016), the ARB dismissed the Complainant's appeal where the Complainant's brief did not address the basis for the ALJ's decision nor point to any error in the ALJ's findings that the complaint was untimely and that the Complainant failed to establish any equitable tolling grounds. The Complainant's brief was not timely filed, but the ARB accepted it over the Respondent's objection in view of the Complainant's pro se status, and unfamiliarity with the ARB's electronic docketing system. The ARB, however, ruled:

    [G]iven that the [Complainant's] brief does not address the basis for the ALJ's decision nor points to any error in the findings that Rosenfeld's complaint was untimely and that he failed to establish any equitable tolling grounds, it is unnecessary to require Respondents to expend further resources to respond to Rosenfeld' s brief, as there are no relevant legal arguments to respond to.

  • Powers v. Union Pacific Railroad Co. , ARB No. 13-034, ALJ No. 2010-FRS-30 (ARB May 23, 2016)
    Order Vacating the Administrative Review Board's Decision and Order of Remand and Returning the Case to the Administrative Review Board for Decision PDF


    Summary :

    CONTRIBUTORY FACTOR CAUSATION; ARB'S POWERS DECISION VACATED

    On May 23, 2016, the ARB vacated its en banc decision in Powers v. Union Pacific Railroad Co. , ARB No. 13-034, ALJ No. 2010-FRS-30 (ARB Mar. 20, 2015) (en banc), reissued with full dissent (ARB Apr. 21, 2015). Powers v. Union Pacific Railroad Co. , ARB No. 13-034, ALJ No. 2010-FRS-30, (ARB May 23, 2016) (en banc).

    In the now vacated Powers decision, the ARB had addressed, en banc, the contributory factor element of an FRSA whistleblower complaint. The order vacating the en banc decision was prompted by a determination by the ARB that one member of the ARB had engaged in an ex parte communication that created the appearance of lack of impartiality in the case.

  • Williams v. Union Pacific Railroad Co. , ARB No. 16-058, ALJ No. 2014-FRS-153 (ARB May 23, 2016)
    Order Granting Withdrawal of Petition for Review PDF


    Summary :

    The ARB granted the Complainant's withdrawal of her petition for review, with the result that the ALJ's Order Granting Respondent's Motion for Summary Decision and Order Cancelling Hearing issued on April 8, 2016 became the Secretary of Labor's final order in the case.

  • Bohanon v. Grand Trunk Western Railroad Co. , ARB No. 16-048, ALJ No. 2014-FRS-3 (ARB May 18, 2016)
    Order Denying Motion for Reconsideration PDF


    Summary :

    MOTION FOR RECONSIDERATION OF DECISION FINDING THAT APPEAL WAS UNTIMELY DENIED WHERE GROUND PRESENTED HAD BEEN CONSIDERED BY THE ARB IN ITS DECISION

    In Bohanon v. Grand Trunk Western Railroad Co. , ARB No. 16-048, ALJ No. 2014-FRS-3 (ARB May 18, 2016), the Respondent filed a motion for reconsideration of the ARB’s Final Decision and Order Denying Motion to File Petition for Review, After Time for the Filing Has Expired. The Respondent relied on the parties’ desire to settle the case as the ground for reconsideration. This factor, however, had already been considered by the ARB in its decision, in which it had found that the parties’ motion for approval of a settlement was not an exceptional circumstance warranting tolling of the limitations period for requesting ARB review.

  • Dietz v. Cypress Semiconductor Corp. , ARB No. 15-047, ALJ No. 2014-SOX-2 (ARB May 12, 2016)
    Order Affirming the Administrative Law Judge's Supplemental Decision and Order Awarding Attorneys' Fees PDF


    Summary :

    Order approving ALJ's Supplemental Decision and Order Awarding Attorneys' Fees.

  • Katerberg Verhage, Inc. , ARB No. 16-053 (ARB May 5, 2016)
    Order Granting Administrator's Motion to Dismiss the Petition for Review Without Prejudice PDF


    Summary :

    Order approving the Administrator's unopposed motion to dismiss the petition for ARB review.

  • Administrator, Wage and Hour Div., USDOL v. Puget Sound Environmental , ARB No. 14-068, ALJ No. 2012-SCA-14 (ARB May 4, 2016)
    Final Decision and Order PDF


    Summary :

    OWNER AND HIS TWO COMPANIES FOUND LIABLE FOR OVER $1.4 MILLION IN BACK WAGES AND BENEFITS FOR VIOLATIONS OF THE SERVICE CONTRACT ACT

    In Administrator, Wage and Hour Div., USDOL v. Puget Sound Environmental , ARB No. 14-068, ALJ No. 2012-SCA-14 (ARB May 4, 2016), the ARB affirmed the ALJ’s order granting the Administrator’s motion for summary decision, with relief in the form of $1,409.409.98 in back wages and benefits for violations of the terms of contracts subject to the Service Contract Act for general housekeeping, painting, maintenance, and health and safety services on ships and shore facilities primarily at the Puget Sound Naval Shipyard. The violations included misclassification of workers resulting in failure to pay the contractual determined prevailing wages; failure to pay required holiday time; failure to pay required vacation time; and failure to pay a “health and welfare” benefit or to provide health insurance in lieu of that benefit. The ARB found that these violations meant that the Administrator was to forward the names of the Respondents to the Comptroller General for inclusion on the federal contract ineligible list.

    DEBARMENT FOR SCA VIOLATIONS; STRICTLY SPEAKING AND ALJ DOES NOT HAVE THE AUTHORITY TO ORDER DEBARMENT; RATHER, THE ALJ’S AUTHORITY IS TO DETERMINE WHETHER THE RESPONDENT ESTABLISHED THE “UNUSUAL CIRCUMSTANCES” NECESSARY TO BE RELIEVED FROM THE INELIGIBLE LIST

    In Administrator, Wage and Hour Div., USDOL v. Puget Sound Environmental , ARB No. 14-068, ALJ No. 2012-SCA-14 (ARB May 4, 2016), the ALJ had ordered three Respondents debarred for three years from federal contracts for violations under the Service Contract Act. The ARB clarified:

    Strictly speaking … the ALJ does not have the authority to debar anyone for Service Contract Act violations. The Department’s Service Contract Act regulations require the ALJ to “include in his/her decision an order as to whether the respondent is to be relieved from the ineligible list ,” 29 U.S.C. § 6.19(b)(2) (2015) (emphasis added), the Comptroller General’s list of persons and firms who have violated the Service Contract Act, see 41 U.S.C. § 6706(a); the regulations do not, however, give ALJs authority to do anything more. Thus, the final full sentence in the ALJ’s decision that Moreno et al. “are debarred from federal contracting for three years,“ … was beyond his authority. The ALJ should have simply concluded that Moreno et al. had failed to establish the “unusual circumstances” necessary to be relieved from the “ineligible list.” Formally, it is the Administrator who, on the Secretary’s behalf, must forward to the Comptroller General the .names of those found to be in violation of the Act. See 29 C.F.R. § 6.21 (a) (“Upon the final decision of the Administrative Law Judge or Administrative Review Board, as appropriate, the Administrator shall within 90 days forward to the Comptroller General the name of any respondent found in violation of the Service Contract Act, including the name of any firm, corporation, partnership, or association in which the respondent has a substantial interest, unless such decision orders relief from the ineligible list because of unusual circumstances.”); 41 U.S.C. § 6706(b) (“If the Secretary does not recommend otherwise because of unusual circumstances, the Secretary shall, not later than 90 days after a hearing examiner has made a finding of a violation of this chapter, forward to the Comptroller General the name of the person or firm found to have violated this chapter.”); see generally Admin., Wage & Hour Div. v. 5 Star Forestry , ARB No. 14-021, ALJ No. 2013-SCA-004, slip op. at 7-8 (ARB June 24, 2015).

    Slip op. at 9, n.36 (emphasis added).

    SUMMARY DECISION; GENERAL DENIAL IN THE ABSTRACT IS NOT SUFFICIENT TO “DISPUTE” THAT FACT IN A LEGAL PROCEEDING; WHERE MOVING PARTY SUPPORTS A MOTION FOR SUMMARY DECISION WITH SPECIFIC EVIDENCE, THE OPPOSING PARTY MUST PRODUCE ADMISSIBLE EVIDENCE TO RAISE A DISPUTED ISSUE OF MATERIAL FACT

    In Administrator, Wage and Hour Div., USDOL v. Puget Sound Environmental , ARB No. 14-068, ALJ No. 2012-SCA-14 (ARB May 4, 2016), the ARB affirmed the ALJ’s order granting the Administrator’s motion for summary decision, with relief in the form of $1,409.409.98 in back wages and benefits for violations of the terms of contracts subject to the Service Contract Act for general housekeeping, painting, maintenance, and health and safety services on ships and shore facilities primarily at the Puget Sound Naval Shipyard. On appeal, the contractor challenged the ALJ’s findings of undisputed facts on the ground that he had continually denied some of those facts. The ARB was not persuaded by this challenge, and explained that the contractor’s general denials were insufficient to withstand the Administrator’s motion for summary decision:

       But, Moreno et al. misunderstand what “undisputed” means in this context. Just because Moreno et al. might disagree with, or deny , some of the facts does not make those facts “disputed.” Where the moving party—here, the Administrator—has supported the motion for summary decision with specific evidence, the opposing party’s-here, Moreno et al.’s unsupported disagreement with, or denial of, those facts is not enough. When we (and the ALJ) refer to there not being a “genuine issue of material fact,” this means simply that, given the rules of evidence and procedure in matters before the ALJ , there are no disputed material facts. This is not the same thing as there being no disputed material facts in the abstract. To deny a fact is not the same as to “dispute” that fact in a legal proceeding. To make a fact “disputed” in a legal proceeding, Moreno et al. must provide the judge with admissible evidence relevant to that fact. Without such admissible evidence, neither the ALJ nor we have any authority to rely on Moreno et al.’s denials. Here, what Moreno et al. provided to the ALJ was not admissible evidence: none of the documents they submitted with their response to the Administrator’s motion for summary decision were authenticated, and none of their claims and/or denials were supported even by a declaration. Since Moreno et al. did not provide the ALJ with any admissible evidence, Moreno et al.’s denial of certain facts does not undermine our conclusion that there are no disputed material facts.

    Slip op. at 10-11 (footnotes omitted) (emphasis as in original).

    SELF-REPRESENTED RESPONDENTS; ALJ’S NEED TO BALANCE LEEWAY TO UNREPRESENTED LITIGANTS AGAINST DUTY OF IMPARTIALITY

    In Administrator, Wage and Hour Div., USDOL v. Puget Sound Environmental , ARB No. 14-068, ALJ No. 2012-SCA-14 (ARB May 4, 2016), the ARB affirmed the ALJ’s order granting the Administrator’s motion for summary decision, with relief in the form of $1,409.409.98 in back wages and benefits for violations of the terms of contracts subject to the Service Contract Act for general housekeeping, painting, maintenance, and health and safety services on ships and shore facilities primarily at the Puget Sound Naval Shipyard.

    On appeal, the ARB addressed the question of whether the ALJ should have given more leeway to the Respondents because they did not have a lawyer, even though the question had not been explicitly raised by the Respondents. The ARB recited several things the ALJ perhaps could have done to have cut more slack to the Respondents in view of their lack of representation, but found that a reversal and/or remand was not warranted. The ARB wrote in regard to the ALJ’s prehearing conference call with the parties in which the Administrator’s motion for summary decision was discussed:

    First, the ALJ had a fine line to walk: while an ALJ does have some role in assisting an unrepresented party, “he also has a duty of impartiality. A judge must refrain from becoming an advocate for the [unrepresented] litigant.” While the ALJ would have been within his discretion to explain in more detail what he meant when he said to Moreno, “you’ll have to have some sort of proof in the answer to the motion. Just saying that you deny it will not be enough,” the ALJ was within his discretion not to have done more than he did.

    Slip op. at 11-12 (footnotes omitted). The ARB next noted that the case involved multimillion dollar contracts and that the Administrator’s complaint included a prayer for over $1.4 million dollars in back pay and benefits. The ARB observed that there was a lot of money at stake, and opined that the Respondents should have hired a lawyer as they had the right to do under the regulations. The ARB expressed some skepticism about the Respondents’ claim of inability to afford a lawyer, but stated that even if it was true the ALJ was not required to let the owner “off the hook, given the vast sums of money that the government has awarded” to his companies. Id . at 12-13.

    Editor’s note: One member of the ARB indicated that he concurred only with the majority’s holding that the Administrator was entitled to summary decision.

    RELIANCE ON ADVICE FROM CONTRACTING AGENCY OFFICIALS IS NOT A DEFENSE AGAINST LIABILITY FOR SCA BACK WAGES

    In Administrator, Wage and Hour Div., USDOL v. Puget Sound Environmental , ARB No. 14-068, ALJ No. 2012-SCA-14 (ARB May 4, 2016), the ARB affirmed the ALJ’s order granting the Administrator’s motion for summary decision, with relief in the form of $1,409.409.98 in back wages and benefits for violations of the terms of contracts subject to the Service Contract Act for general housekeeping, painting, maintenance, and health and safety services on ships and shore facilities primarily at the Puget Sound Naval Shipyard.

    On appeal, the Respondents asked that the ARB consider their claim that the contracting agency—the Naval Supply Center—failed to include the proper wage determination in the contracts. The ARB construed this as an estoppel argument. The ARB was not persuaded. First, the Respondents misconstrued the Administrator’s complaint. It did not charge that the contracts failed to include an appropriate wage determination; the wage determinations were correct. The charge was that the Respondents placed employees into the wrong wage categories. Thus, the Respondent’s reliance on 29 C.F.R. § 4.5(c) was unpersuasive. Second, assuming that the Naval Supply Center made a mistake in advising the Respondents which employees belonged in which categories, the regulations explicitly state that “[r]eliance on advice from contracting agency officials ... is not a defense against a contractor’s liability for back wages under the Act.” 29 C.F.R. § 4.187(e)(5).

  • Material Movement, LLC , ARB No. 16-061, ALJ No. 2015-SCA-1 (ARB May 17, 2016)
    Order Denying Appeal Pending Issuance of Decision on Reconsideration PDF


    Summary :

    ARB DECLINES REVIEW OF ALJ'S DECISION IN SCA CASE WHILE A MOTION FOR RECONSIDERATION IS PENDING BEFORE THE ALJ

    In Material Movement, LLC , ARB No. 16-061, ALJ No. 2015-SCA-1 (ARB May 17, 2016), the ALJ granted summary decision, and the Respondents requested ARB review. In the request for review, the Respondents stated that they had requested the ALJ to reconsider his decision, and that the ALJ had not yet responded to that request. The ARB stated: “Until the ALJ issues an order in response to the request for reconsideration, the Board does not consider his decision to be final and subject to review.” The ARB thus denied the petition for review, but stated that the Respondents could file a new petition within 40 days of the date on which the ALJ issues his decision on reconsideration.