Vudhamari v. Advent Global Solutions, ARB No. 2019-0061, ALJ No. 2018-LCA-00022 (ARB July 30, 2020) (per curiam) (Order of Remand)
MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED CAN BE CONVERTED TO A MOTION FOR SUMMARY DECISION WHERE PARTIES SUBMIT EVIDENCE OUTSIDE THE PLEADINGS
MOTION FOR SUMMARY DECISION; WHERE A PARTY IS SELF-REPRESENTED, ALJ MUST PROVIDE THAT PARTY WITH NOTICE, IN A SUFFICIENTLY UNDERSTANDABLE FORM, OF THE REQUIREMENTS FOR OPPOSING A MOTION FOR SUMMARY DECISION ALONG WITH THE TEXT OF 29 C.F.R. § 18.72
In Vudhamari v. Advent Global Solutions, ARB No. 2019-0061, ALJ No. 2018-LCA-00022 (ARB July 30, 2020) (per curiam), the Prosecuting Party before the ALJ was the H-1B worker. Respondent filed a motion to dismiss for failure to state a claim upon which relief could be granted. The ALJ denied the motion for failure to state a claim, but granted the motion under summary decision.
On appeal, the ARB agreed with the ALJ that the Prosecuting Party stated a claim upon which relief could be granted by alleging that Respondent underpaid his wages. The ARB, however, reversed the ALJ’s grant of summary decision and remanded for additional proceedings. The ARB explained that the ALJ properly converted the motion to a request for summary decision, but erred in failing to provide the self-represented Prosecuting Party with adequate notice of the requirements for opposing a motion for summary decision:
But the Complaint incorporates claims beyond the back pay award, and Advent submitted exhibits in support of its assertion that it was entitled to dismissal of the Complaint. Vudhamari also submitted additional documents in support of his response to the Motion. Because the parties submitted evidence outside the pleadings, it was proper for the ALJ to interpret the Motion as a request for summary decision. Hukman v. U.S. Airways, Inc., ARB No. 2015-0054, ALJ No. 2015-AIR-00003, slip op at 6-7 (ARB July 13, 2017).
The ALJ informed Vudhamari of the consequences for failing to reply to the Motion when it was presented as a motion to dismiss. See March 19, 2019 Order Establishing Deadline for Prosecuting Party to File Reply to Respondent’s Motion to Dismiss. But the ALJ did not inform Vudhamari that he was converting the Motion to a motion for summary decision. Vudhamari is appearing pro se, and the ALJ should have provided him with notice of the requirements for opposing a motion for summary decision, in a form sufficiently understandable to apprise him of what was required, along with the text of the rule governing summary decisions. See, e.g., Zavaleta v. Alaska Airlines, Inc., ARB No. 2015-0080, ALJ No. 2015-AIR-00016, slip op. at 11-12 (ARB May 8, 2017); see also Timms v. Frank, 953 F.2d 281, 285 (7th Cir 1992) (“a short and plain statement in ordinary English” is appropriate because “the need to answer a summary judgment motion with counter-affidavits is contrary to lay intuition.”).
Accordingly, we direct the ALJ to provide Vudhamari with a notice containing: (1) the text of the rule governing summary decisions before ALJs (i.e., 29 C.F.R. § 18.72), and (2) a short and plain statement that factual assertions in Advent’s submissions will be taken as true unless he contradicts Advent with counter-affidavits or other documentary evidence. Although we express no opinion on the merits of Vudhamari’s claims, we REVERSE the ALJ’s Decision and Order Granting Summary Decision and REMAND the case for further proceedings consistent with this opinion.
Slip op. at 4.
Administrator, Wage and Hour Div., USDOL v. Wyrick & Sons Pine Straw, ARB No. 2017-0046, ALJ No. 2015-MSP-00001 (ARB July 30, 2020) (per curiam) (Decision and Order)
RESPONDENT’S LIABILITY FOR MSPB VIOLATIONS FOR PINE STRAW HARVESTING OPERATIONS WHERE IT USED CONTRACTORS FOR THE HARVESTING; HARVESTING FOUND TO BE AN AGRICULTURAL OR HORICULTURAL COMMODITY BECAUSE AGRICULTURAL TECHNIQUES WERE USED TO PREPARE FOR HARVESTING; ARB DECLINES TO FOLLOW ELEVENTH CIRCUIT PRONOUNCEMENT IN CARO-GALVAN THAT ALL FIELD WORK IS SEASONAL; SEVEN FACTOR TEST OF 29 C.F.R. § 500.20(h)(5)(iii) IS APPLIED QUALITATIVELY AND NOT QUANTITATIVELY
REGULATORY HISTORY AND INTERPRETATION; PREAMBLE IN RULEMAKING CAN INFORM ON THE INTERPRETATION OF A REGUATION, BUT THE PREMABLE IS NOT BINDING; WHEN A PREMABLE CONFLICTS WITH THE PLAIN LANGUAGE OF THE REGULATION, THE REGULATION CONTROLS
In Administrator, Wage and Hour Div., USDOL v. Wyrick & Sons Pine Straw, ARB No. 2017-0046, ALJ No. 2015-MSP-00001 (ARB July 30, 2020) (per curiam), Respondent conceded that it did not abide by the requirements of the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) with respect to laborers it used to harvest pine straw. Specifically, its contractor Crew Chiefs were not registered as farm labor contractors (FLCs), and Respondent did not maintain employment records, issue wage statements, or make required employment disclosures to the laborers. Respondent, however, argued that it was not liable because the laborers were not “seasonal agricultural workers,” and because the laborers were employed by the Crew Chiefs, and not by Respondent. The ARB affirmed the ALJ’s decision in part, reversed in part, and remanded for additional proceedings.
Harvesting of pine straw is a an agricultural or horticultural commodity under Morante-Navarro
Respondent argued that that it was not liable because the laborers were not “seasonal agricultural workers” as defined by 29 U.S.C. § 1802(10)(A); 29 C.F.R. § 500.20(r). Specifically, Respondent argued that the laborers were not engaged in “agricultural employment,” because pine straw is not an agricultural or horticultural commodity. The ARB, however, agreed with the ALJ that pine straw is an agricultural or horticultural commodity, and the laborers were engaged in agricultural employment, based on the Eleventh Circuit’s holding in Morante-Navarro v. T & Y Pine Straw, Inc., 350 F.3d 1163 (11th Cir. 2003). The ARB determined that “in both [Morante-Navarro and the instant case], the land had to be cleared and prepared through the use of various agricultural techniques before the pine straw could be harvested.”
Harvesting of pine straw as seasonal work; ARB finds that Caro-Galvan pronouncement that all field work is seasonal is in conflict with the MSPA and is dicta that should not be followed
Respondent argued that pine straw harvesting is performed year-round, and thus the employment was not of a “seasonal or other temporary nature.” The ALJ applied, albeit with reservation, the ruling in Caro-Galvan v. Curtis Richardson, Inc., 993 F.2d 1500 (11th Cir. 1993), indicating that all field work is seasonal work. The ARB stated that the “ALJ’s reservation about applying this rule was appropriate. We find that the Eleventh Circuit’s pronouncement that all field work is seasonal work is contrary to the plain language of the MSPA and its implementing regulations and was dicta which the ALJ should not have followed.” The ARB looked to the plain language of the statute, and the fact that the regulations separately define the terms “seasonal” and “field work.” The ARB noted that its ruling was in conflict with the rulemaking preamble to the regulatory definition of “seasonal,” which agreed with the 11th Circuit that all field work is, by definition, seasonal work. The ARB, however, stated: “Although the preamble can inform the interpretation of the regulation, the preamble is not binding. When a preamble conflicts with the plain language of the regulation, the regulation controls.” Slip op. at 9 (citations omitted). The ARB also concluded that the 11th Circuit’s pronouncement in Caro-Galvan was non-binding dicta. The ARB cited the Southern District of Florida in Bautista Hernandez v. Tadala’s Nursery, Inc., No. 12-61062, 2013 WL 12043485, *5 (S.D. Fla. Oct. 21, 2013), in which the court concluded that the statement in Caro-Galvan’s ruling “that all field work is seasonal work could have been omitted from the decision without impairing the court’s analytical foundation regarding the seasonal fluctuation of fern harvesting. Bautista Hernandez, 2013 WL 12043485, at *5 …. “ Id. at 10 (citation omitted).
Harvesting of pine straw by contract laborers; application of 29 C.F.R. § 500.20(h)(5)(iii) factors
Respondent also argued that the laborers were employed by the Crew Chiefs, and not by Respondent, and thus it was not liable for the recordkeeping, wage, and disclosure requirements of the MSPA. 29 U.S.C. § 1831(a)-(c), 29 C.F.R. §§ 500.76(b), (d)(1), 500.80(a), (d). The ARB stated that although Respondent retained the laborers’ services indirectly through the Crew Chiefs it could nonetheless be liable as the laborers’ joint employer under the Act, and “will be considered the laborers’ joint employer if, as a matter of economic reality, the laborers were dependent upon Wyrick. See 29 C.F.R. § 500.20(h)(5)(iii); Antenor v. D & S Farms, 88 F.3d 925, 929 (11th Cir. 1996).” Applying the factors outlined in § 500.20(h)(5), the ARB concluded that the laborers were not so economically dependent on Respondent to render it their joint employer.
— Control and supervision
The ARB found that there was no evidence that Respondent “had any involvement in who or how many workers to hire, which laborers were assigned to specific tasks, how work schedules were determined, or when work should begin or end each day.” Id. at 12 (footnote omitted). The ARB determined that Respondent “was concerned with the end product, and left it to the Crew Chiefs to control the means of production.” Id. at 13. The ARB rejected the Administrator’s argument that Respondent indirectly controlled the laborers by setting expectations for the Crew Chiefs and laborers. The ARB determined that meeting “like setting standards, specifications, or expectations for the harvest, or choosing which fields to pick on which days—do not create the type of control contemplated by the MSPA.” Id. at 13 (citation omitted).
— Ability to hire or fire, modify employment conditions, and determine rates and methods of pay
The ARB found no evidence suggesting Respondent had a hand in hiring or firing the laborers; that Respondent modified or controlled the laborers’ employment conditions; that Respondent set working hours, assigned laborers to specific tasks or fields, or dictated any other terms and conditions of the laborers’ employment. It was undisputed that Respondent did not pay the laborers directly. Although Respondent identified a piece rate of $0.70 for baling and $0.10 for loading each bale, Respondent’s representative testified that “the rates on the pay statements were mere suggestions which tracked local industry standards, and that it was up to the Crew Chiefs to determine how much the laborers were actually paid.” Id. at 15. Although the actual pay rates tracked Respondent’s suggestions, the ARB determined that this fact was insufficient as “the Administrator presented no other evidence that the Crew Chiefs were beholden to, or even swayed by, the rates indicated on the pay statements, or evidence that Wyrick prohibited or dissuaded the Crew Chiefs from setting their own pay rates for the laborers.” Id. at 15-16.
— Permanency and duration of relationship
Although the ALJ found that the laborers were in a somewhat permanent relationship because they “consistently accepted the crew chiefs’ invitations to gather pine straw for Wyrick,” Id. at 16 (quoting ALJ decision), the ARB found that the evidence did not support this conclusion. The ARB found that the only evidence of consistent work was by two laborers; that Respondent’s representative testified that the company did not prohibit the Crew Chiefs from working other land; and that nothing in the written agreement between the Crew Chiefs and Respondent indicated exclusivity. The ARB further noted that laborers’ statements suggested a high level of turnover and lack of permanency in the harvesting workforce.
— Degree of skill required In the instant case, the parties stipulated that “no training or education was required for the
laborers to perform the harvest, except a short amount of time to learn to use the manual baler.” Id. at 17. The ARB thus found that raking and baling pine straw required little skill.
— Integral to business operations
The ARB found that, as Respondent “is a pine straw wholesaler, and the laborers harvested pine straw for Wyrick to sell,” “the raking and baling performed by the laborers was therefore integral to Wyrick’s business.” Id.
— Performed on work premises
In the instant case, Respondent did not own the pine fields upon which the laborers worked, but had agreements with the landowners that permitted the harvesting. The Crew Chiefs, in contrast, “did not have relationships with the landowners and the laborers only had access to the land through their association with Wyrick.” Id. The ARB thus agreed with the ALJ that, “as a practical matter,” Respondent “controlled the land for purposes of the joint employment analysis.” Id. The ARB stated:
Although Wyrick may be right that Wyrick’s agreements with landowners did not confer a technical and legal possessory interest, the fact remains that the laborers were only on the land by virtue of Wyrick’s agreements with the landowners. We agree with the ALJ’s principal conclusion that the practical nature of the relationship is clear, regardless of the technical legal status between Wyrick and the landowners. The laborers’ and Crew Chiefs’ ability to work the land was wholly dependent on, and derivate of, Wyrick’s agreements with the landowners, thus giving Wyrick some level of control over the land for purposes of the laborers and work at issue in this action.
Id. at 18 (citation omitted) (emphasis as in original).
— Responsibilities commonly performed by employers
In the instant case, Respondent provided tools necessary for harvesting the pine straw (pitchforks, strings, balers, tractors, and trailers), but did not manage payroll, issue paychecks, pay or deduct for taxes, provide worker’s compensation insurance, provide housing or transportation, or provide field sanitation facilities or water. The ARB found that the provision of tools and equipment alone was only minimum indicia of employment or economic dependency.
— Weighing of factors; qualitative analysis
The ARB cited Antenor v. D & S Farms, 88 F.3d 925, 933 (11th Cir. 1996), for the proposition that the § 500.20(h)(5)(iv) factors “must be weighed qualitatively, not quantitatively based on a strict mathematical formula.” Id. at 11. Here, the ARB determined:
Weighing the relevant factors, we find that Wyrick did not jointly employ the laborers. Although the laborers provided unskilled work that was integral to Wyrick’s business on land secured by Wyrick, Wyrick did not supervise or control the laborers, set their working conditions or terms and conditions of employment, hire or fire them, or set their pay rates. The evidence also suggests that the workforce was largely transient and temporary and, therefore, not dependent on Wyrick. And, other than providing the few tools that were necessary to do the work, Wyrick assumed none of the other responsibilities typical of an employer. Wyrick hired the Crew Chiefs to recruit, hire, supply, supervise, and pay the work force, and remained primarily concerned only with the final product that was produced. Weighing all of the factors qualitatively, we find that the laborers were not economically dependent on Wyrick under these circumstances. Therefore, we reverse the ALJ’s ruling that Wyrick jointly employed the laborers.
Id. at 19.
The ARB held that:
Because Wyrick did not employ the laborers, it was not required to provide them with wage statements, maintain their employment records, provide or post disclosures of employment conditions, or display MSPA posters in the work fields pursuant to 29 U.S.C. § 1831(a)-(c) and 29 C.F.R. §§ 500.76(b), (d)(1), 500.80(a), (d), as cited by WHD. We REVERSE the ALJ’s assessment of penalties with respect to those violations.”
Regarding the remaining violation, for utilizing the services of unregistered FLCs in violation of 29 U.S.C. § 1842 and 29 C.F.R. § 500.71, we AFFIRM the ALJ’s ruling that the laborers were engaged in agricultural employment, but REMAND for further proceedings consistent with this Order on the issue of whether the laborers were employed on a seasonal basis.
Asmore v. Amtrak, ARB No. 2020-0049, ALJ No. 2018-FRS-00140 (ARB July 28, 2020) (per curiam) (Decision and Order Approving Settlement and Dismissing Complaint With Prejudice)
The ARB approved the parties' settlement agreement.
Dick v. United Services Automobile Association, ARB No. 2019-004, ALJ No. 2018-STA-00054 (ARB July 23, 2020).(Order Dismissing Interlocutory Appeal)
[STAA Digest II Q]
INTERLOCUTORY APPEAL; PETITION FOR REVIEW OF ALJ SUMMARY DECISION FINDING COMPLAINANT WAS NOT A COVERED EMPLOYEE VIS-À-VIS ONE RESPONDENT WAS A REQUEST FOR AN INTERLOCUTORY APPEAL WHERE CLAIM AGAINST ANOTHER RESPONDENT WAS STILL PENDING BEFORE ALJ; SITUATION DID NOT MET COLLATERAL ORDER EXCEPTION
In Dick v. United Services Automobile Association (USAA), ARB No. 2019-004, ALJ No. 2018-STA-00054 (ARB July 23, 2020), the ALJ granted summary decision dismissing United Services Automobile Association (USAA) as a Respondent. The claim against Respondent Contracted Driver Services, Inc. (CDS), however, remained pending before the ALJ. Complainant filed a petition for review with the ARB. The ARB issued an order to show cause why the petition should not be dismissed as an interlocutory appeal. It later issued a clarification order explaining Board practice regarding potential interlocutory appeals. The ALJ stayed the hearing proceedings.
The ARB denied the petition. The ARB cited Elliott v. Archdiocese of New York, 682 F.3d 213, 219 (3d Cir. 2012), in which the court held: “Generally, an order which terminates fewer than all claims pending in an action or claims against fewer than all the parties to an action does not constitute a ‘final’ order for purposes of 28 U.S.C. § 1291.”
The ARB noted that Complainant had not asked the ALJ to certify the issue decided (that Complainant was not an USAA employee) for appeal as provided in 28 U.S.C. § 1292(b). The ARB stated that, as a consequence, to consider the interlocutory appeal, the ARB would have to determine that the order met the collateral order exception recognized by the Supreme Court in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949).. The ARB determined that it did not, finding that “[w]hile the ALJ has decided the question whether Complainant was a USAA employee (and has decided that he was not), it is not collateral to his complaint that he is entitled to relief, but instead is integrated with his overall claim against Respondents.” Slip op. at 4 (footnote omitted). The ARB noted its ruling in Dempsey v. Fluor Daniel Inc., ARB No. 2001-0075, ALJ No. 2001-CAA-00005, slip op. at 2 (ARB May 7, 2002) (stating “[b]ecause the R. D. & O. did not dispose of the case on its merits, but only decided the initial issue whether Dempsey was a covered employee, Fluor Daniel’s appeal is interlocutory.”). Id. at 5, n.16.
Davenport v. LTI Trucking Services Inc., ARB No. 2020-0026 ALJ No. 2016-STA-00015 (ARB July 22, 2020) (per curiam) (Decision and Order)
[STAA Digest VI B 4]
ADVERSE EMPLOYMENT ACTION; RESPONDENT’S SENDING DRIVER HOME AFTER DISCOVERY THAT HE WAS NOT CLEARED TO DRIVE WAS NOT AN ADVERSE ACTION WHERE COMPLAINANT WAS NOT FIRED AND COULD HAVE RETURNED TO WORK ONCE CLEARED, AND THE RECORD DID NOT SHOW AN ATTEMPT BY RESPONDENT TO FORCE COMPLAINANT OUT OF WORK OR TO CONSTRUCTIVELY DISCHARGE COMPLAINANT
In Davenport v. LTI Trucking Services Inc., ARB No. 2020-0026 ALJ No. 2016-STA-00015 (ARB July 22, 2020) (per curiam), Respondent had a policy that if a driver could not drive due to illness for more than a short period of time, it would send the driver home. The driver is permitted to return to work after being cleared by a medical provider and passing a physical examination. In the instant case, Complainant had been complaining that the truck was making him ill. When Respondent learned that Complainant was not medically cleared to drive, it told Complainant that he could not use Respondent’s truck, took away the keys to the truck, and provided Complainant a bus ticket home. Complainant asked if Respondent would instead pay for a hotel room so that he could see doctors in the area of the workplace. Complainant also asked if he was being fired. Respondent declined to pay for a hotel but informed Complainant he was not being fired but only being sent home until he was well enough to drive. Complainant refused the bus ticket and never returned to work.
The ALJ who originally heard the case found that Complainant had voluntarily quit, and the ALJ who decided the case on remand concluded that the record supported the first ALJ’s findings. The ARB agreed. The ARB first noted that the case was similar to prior cases in which the ARB had affirmed ALJs’ findings that no termination occurred. The ARB further noted that Respondent had not told Complainant to “drive or go home.” Rather, “Respondent’s decision to send Complainant home was based on a company policy that if a driver cannot drive for an extended period of time he or she should be sent home until medically cleared to drive (and having passed a physical examination).” Slip op. at 6 (citations omitted). The ARB also found that Respondent had not tried to force Complainant to leave work or constructively discharge Complainant. The ARB found that Respondent had been attempting to discover and remedy any problems it found with Complainant’s truck as they materialized. Finally, the ARB stated that “in this case there was no memorialization by Respondent that Complainant quit or was fired when he left, which supports that Respondent did not terminate Complainant’s employment.” Id. at 7. The ARB concluded by stating:
This is a straightforward case in which Respondent did not fire Complainant even though Complainant chose to interpret his being sent home because he was not well enough to drive as a termination decision. Again, the ALJ so found and concluded and those findings and conclusions are supported by substantial evidence in the record and in accordance with law
[STAA Digest IV H]
AFFIRMATIVE DEFENSE; COMPLAINANT MADE STATEMENT INDICATING SYMPATHY WITH THOSE WHO ENGAGE IN WORKPLACE VIOLENCE
In Davenport v. LTI Trucking Services Inc., ARB No. 2020-0026 ALJ No. 2016-STA-00015 (ARB July 22, 2020) (per curiam), the ARB affirmed the ALJ finding that—assuming arguendo that Complainant’s decision not to return to work after being sent home because he was not medically cleared to drive was a termination—Respondent proved that it would have refused to take Complainant back to work absent protected activity. Complainant did not dispute that he had written to an insurer that he understood why people take AK-47 weapons and go off. Respondent learned of the statement, and Respondent’s Director of Safety credibly testified that it concerned him so much that he decided that Complainant would not be permitted to return to work.
[STAA Digest VI B 4]
ADVERSE ACTION; MERE SPECULATION INSUFFICIENT TO ESTABLISH BLACKLISTING
In Davenport v. LTI Trucking Services Inc., ARB No. 2020-0026 ALJ No. 2016-STA-00015 (ARB July 22, 2020) (per curiam), the ARB affirmed as based on substantial evidence the ALJ’s finding that “Complainant did not fulfill his burden to prove that Respondent blacklisted him by a preponderance of the evidence because Complainant failed to introduce or identify any evidence that Respondent blacklisted him other than mere speculation.” Slip op. at 8. Complainant alleged that Respondent blacklisted him by telling other employers not to hire him because he had a “preexisting condition.” Although Complainant recorded a conversation with the owner of a potential employer, the recording did not establish that the potential employer ever communicated with anyone at Respondent. The owner denied knowledge of the job application getting to the point where his company would have contacted Respondent for references, and speculated that the decision not to hire Complainant was based on information contained in driver history reports. On appeal, the ARB noted the ALJ’s findings that “Complainant did not present any evidence of what his driver reports contained, that Respondent provided any negative information to be placed on his driver reports, or that anyone at Respondent actually communicated with anyone at a prospective employer.” Id.
Johnson v. FedEx Ground Package System, Inc., ARB No. 2019-0024, ALJ No. 2018-STA-00028 (ARB July 22, 2020) (Decision and Order Dismissing Interlocutory Appeal)
[STAA Digest II Q]
INTERLOCUTORY APPEAL; COMPLAINANT’S APPEAL OF ALJ’S GRANT OF SUMMARY DECISION DISMISSING ONLY ONE RESPONDENT DISMISSED AS INTERLOCUTORY
In Johnson v. FedEx Ground Package System, Inc., ARB No. 2019-0024, ALJ No. 2018-STA-00028 (ARB July 22, 2020), the ALJ issued a summary decision dismissing FedEx from the action. This dismissal, however, did not concern claims against other Respondents which remained pending before the ALJ. Complainant filed a petition for ARB review. The ARB issued an order to show cause why the petition should not be denied as interlocutory. Complainant replied, agreeing that the petition should be dismissed as interlocutory, and noting that he had only filed the petition in an abundance of caution to preserve his appeal rights. The ARB thus dismissed the petition.
Towe v. Autobahn Freight Lines, Ltd., ARB No. 2020-0045, ALJ No. 2019-STA-00069 (ARB July 22, 2020) (Order [Dismissing Appeal as Untimely])
The Complainant’s petition for review was dismissed after he did not respond to the ARB’s order to show cause why the petition should not be dismissed as untimely filed.
Cole v. Norfolk Southern Railway Co., ARB No. 2019-0029, ALJ No. 2018-FRS-00023 (ARB July 14, 2020) (Decision and Order)
PROTECTED ACTIVITY; COMPLAINANT FIRED FOR COMMUNICATIONS WITH RAILWAY CLIENT DETRIMENTAL TO RAILWAY’S RELATIONSHIP WITH THE CLIENT COULD NOT SHOW THAT DECISIONMAKERS WERE AWARE AT THE TIME OF THE DECISION OF ANY PURPORTED SAFETY CONCERNS RAISED WITH THE CLIENT DURING THE COMMUNICATIONS; CLIENT WAS NOT SHOWN TO BE AN ENTITY WITH AUTHORITY TO INVESTIGATE, DISCOVER, OR TERMINATE THE MISCONDUCT UNDER § 20109(a)(1)(C) WHERE COMPLAINANT KNEW RESPONDENT HAD MADE DECISION TO USE OHIO RATHER MICHIGAN BASED CREWS TO SERVICE CLIENT
In Cole v. Norfolk Southern Railway Co., ARB No. 2019-0029, ALJ No. 2018-FRS-00023 (ARB July 14, 2020), Complainant was a conductor for Respondent railway in its Dearborn Division, and local chair of his union. Respondent entered into a contract with DTE Energy to provide rail service to coal-fired plants in the Detroit area. Respondent informed the unions that Ohio-based crews would be used for the service. The unions opposed this decision under the Railway Labor Act. Respondent filed a civil action in Federal district court seeking arbitration. Complainant, seeking information to provide witness names for the Federal suit, contacted an official at DTE during which he asked the DTE official to “confirm or deny” whether DTE made the decision to use Ohio-based crews. During the conversation, Complainant asked the DTE “[i]f the union was to put it on a billboard that DTE was requiring the Norfolk Southern to move, or to use the base in Toledo would that be true?” The DTE official cautioned that DTE would pursue a libel claim if false information was published, to which Complainant replied, “Oh, we have our lawyers too.” When Respondent learned of the phone call, Complainant was removed from service pending an investigation into whether Complainant had attempted to undermine Respondent’s business relationship with DTE. Complainant was ultimately terminated for conduct unbecoming of an employee and detrimental to Respondent’s interests. Complainant filed a FRSA complaint with OSHA. The ALJ granted summary decision denying the complaint finding that the conversation with the DTE official was not protected activity. The ARB summarily affirmed the ALJ’s decision.
The ARB found that the record supported Respondent’s contention that Complainant did not convey to Respondent at any point prior to his termination any safety concerns he may have raised to the DTE official. Rather, the first time Complainant indicated that he conveyed safety concerns to the DTE official was during a deposition more than a year and half after his employment was terminated.
The ARB also found no merit to Complainant’s argument that his phone call with the DTE official was FRSA protected activity regardless of what was said because he believed DTE had “the authority to investigate, discover, or terminate the misconduct” pursuant to 49 U.S.C. § 20109(a)(1)(C). The ARB pointed to the complaint filed by Respondent in Federal court which stated that Respondent decided to use Ohio-based crews and that DTE was not involved in this decision. The ARB stated: “As DTE was not involved in this decision, it could not have investigated or terminated the alleged misconduct. Further, as Complainant was served with this complaint twelve days prior to his phone call with Mr. Corbett, he cannot demonstrate a good faith belief that Mr. Corbett, DTE’s Communications Manager, had the authority to investigate, discover, or terminate any alleged misconduct.” Slip op. at 8.
Varess v. Persian Broadcast Service Global, Inc., ARB No. 2020-0017, ALJ No. 2016-LCA-00019 (ARB July 14, 2020) (per curiam) (Decision and Order)
TIMELINESS OF LCA COMPLAINT; ARB INDICATES THAT ANY NON-PAYMENT OF WAGES DURING SECOND LCA PERIOD STARTS THE CLOCK; IN ALTERNATIVE, ARB RULES THAT RESPONDENT’S NOTIFICATION TO H-1B WORKER DURING SECOND LCA PERIOD THAT IT WOULD NO LONGER PAY HIM STARTED A LIMITATIONS PERIOD
BACK PAY; WHERE EMPLOYMENT INVOLVED TWO LCA PERIODS, BACK PAY LIABILITY EXTENDED TO BOTH LCA PERIODS EVEN THOUGH PLAINTIFF’S COMPLAINT WAS NOT FILED UNTIL SECOND LCA PERIOD
In Varess v. Persian Broadcast Service Global, Inc., ARB No. 2020-0017, ALJ No. 2016-LCA-00019 (ARB July 14, 2020) (per curiam), the ALJ initially found in favor of Respondent. On a first appeal, the case had been remanded to the ALJ after the ARB found that none of the exceptions to the Respondent’s obligations to pay wages under the LCAs applied. On remand, the ALJ was directed to determine the timeliness of the complaint. On remand, the ALJ held that the complaint was timely as Respondent’s obligation to pay Complainant wages continued until the end of a second LCA period, which ran from September 12, 2013, to September 12, 2015.
In its appeal of the ALJ’s decision on remand, Respondent argued that the complaint was not timely. The ARB, however, had rejected in its prior decision Respondent’s arguments as to why its obligation to pay ended at an earlier date. The ARB agreed with the ALJ’s explanation as to why Respondent was liable to pay wages for the duration of the second LCA, the ARB stating that: “It seems that any nonpayment of wages during the second LCA period would start the clock as a failure to perform an action.” The ARB held in the alternative that the evidence showed that “on July 11, 2014, Respondent paid Complainant wages and notified Complainant that it would no longer pay him”—and that “[c]onsidering this notification, notice of an adverse action, the limitations period would have started running on July 11, 2014. Thus, Complainant February 5, 2015 is timely under either alternative.”
The ARB affirmed the ALJ’s order of payment of back wages for both LCA periods.