Office of Federal Contract Compliance Programs, USDOL v. Convergys Customer Management Group, Inc., ARB No. 2022-0020, ALJ Nos. 2015-OFC-00002 through -00008, 2016-OFC-00003 (Sec'y July 1, 2022) (Final Agency Decision and Order)
District Council of Iron Workers of the State of California v. Wage and Hour Div., USDOL, ARB No. 2020-0035 (Sec’y July 15, 2022) (Final Agency Decision and Order)
Administrative Review Board Decisions
The following case summaries were created by Administrative Review Board staff.
District Council of Iron Workers of the State of California and Vicinity v. Wage and Hour Div., USDOL, ARB No. 2020-0035 (ARB July 26, 2022) (Decision and Order of Remand)
DECISION AND ORDER OF REMAND; ADMINISTRATOR ABUSED HER DISCRETION IN DENYING A REQUEST FOR RECONSIDERATION; THE ARB REMANDED THE CASE TO THE ADMINISTRATOR TO RECONSIDER THE MINIMUM WAGE RATE FOR THE IRON WORKER CLASSIFICATION IN RESIDENTIAL CONSTRUCTION PROJECTS IN THE SUBJECT RURAL COUNTIES IN CALIFORNIA
In Dist. Council of Iron Workers of the State of Cal. and Vicinity v. Adm'r, Wage & Hour Div., U.S. Dep't of Labor, ARB No. 2020-0035 (ARB July 26, 2022) (per curiam), the ARB adopted and attached the Secretary's Final Agency Decision and Order. See Dist. Council of Iron Workers of the State of Cal. and Vicinity, ARB No. 2020-0035 (Sec'y July 15, 2022) (Final Agency Decision and Order). In 2013, the United States Department of Labor's Wage and Hour Division (WHD) conducted a survey of prevailing wage rates of residential construction in rural counties in California and published prevailing wage rates for certain classifications in August 2015. District Council requested the WHD Administrator to reconsider the residential wage determinations for the survey at issue because WHD did not publish a prevailing wage rate for any ironworker classification. On July 5, 2019, the Administrator issued a final ruling denying District Council's request for reconsideration. On September 27, 2021, the ARB issued a D. & O. affirming the Administrator's final ruling.
The Secretary of Labor (Secretary) exercised his discretionary authority to undertake further review of the ARB's D. & O. pursuant to Sections 6(b)(2) and 6(c)(1) of Secretary's Order 01-2020. On July 15, 2022, the Secretary issued a Final Agency Decision and Order reversing the D. & O. and remanding to the Board for further proceedings.
The Secretary determined that WHD's decision not to consult with the District Council of Iron Workers of the State of California and Vicinity as part of its data clarification process, despite evidence that the vast majority of workers at issue were being paid in accordance with its collective bargaining agreement (CBA), was inconsistent with WHD's guidance. According to the Secretary, WHD's guidance for conducting surveys is intended to ensure that the agency exercises its best efforts to publish timely, accurate, and comprehensive wage determinations reflective of the practices that actual prevail in a particular locality. In this case, WHD received wage data that uniformly identified the workers' job classification as "Iron Worker," which was submitted by mostly union contractors, and the wages reported (17 of 18) were paid in accordance with the applicable CBA. Ultimately, WHD determined, without consulting the signatories to the CBA, that it was appropriate to divide the data into three separate ironworker subclassifications and that the agency received insufficient data for each subclassification; as a result, WHD did not issue a prevailing wage rate for ironworkers. Since WHD deviated from its own procedures, the Secretary reversed the ARB's D. & O. and remanded the case back to the ARB for further proceedings.
Upon remand, the ARB reversed the Administrator's decision denying District Council's request for reconsideration and remanded the case to the Administrator to reconsider the minimum wage rate for the Iron Worker classification in residential construction projects in the subject rural counties in California.
McCurry v. Kenco Logistic Services, LLC, ARB No. 2022-0024, ALJ No. 2019-FDA-00015 (ARB July 26, 2022) (Decision and Order)
MOTION FOR SUMMARY DECISION; COMPLAINANT FAILED TO PRESENT EVIDENCE THAT RESPONDENT HAD ANY INVOLVEMENT IN THE ALLEGED ADVERSE ACTION AGAINST HER
In McCurry v. Kenco Logistic Services, LLC, ARB No. 2022-0224, ALJ No. 2019-FDA-00015 (ARB July 26, 2022), the ARB affirmed the ALJ grant of summary decision in a Decision and Order Denying Complaint on Remand. The ARB agreed with the ALJ that the complainant failed to raise a genuine issue of material fact that her alleged protected activity was a contributing factor in an alleged adverse action of terminating of her long-term disability benefits. The record demonstrated that the respondent had no role in the administration of the complainant's benefits plan, and the complainant failed to present evidence that the respondent had informed the benefits administrator of the alleged protected activity before the termination of the benefits.
Admin. v. Kesco, Inc. ARB No. 2022-0031 (ARB July 13, 2022) (Order Dismissing Petition for Review)
DISMISSAL FOR LACK OF JURISDICTION
The ARB dismissed Respondent's petition for review for lack of jurisdiction. Respondent appealed to the ARB from WHD's notification letter denying Respondent's requested wage rates. The ARB determined that WHD's letter did not constitute a final ruling as provided in 29 C.F.R. § 7.9. Therefore, the case was not ripe for review.
Fernandez v. SAP America, Inc., ARB No. 2022-0033, ALJ No. 2022-LCA-00005 (ARB July 5, 2022) (Order Denying Reconsideration) (per curiam)
ORDER DENYING RECONSIDERATION; COMPLAINANT'S MOTION FOR RECONSIDERATION FAILED TO ADDRESS ANY OF THE FOUR LIMITED CIRCUMSTANCES UNDER WHICH THE BOARD WILL RECONSIDER ITS DECISIONS
In Fernandez v. SAP America, Inc., ARB No. 2022-0033, ALJ No. 2022-LCA-00005 (ARB July 5, 2022) (Order Denying Reconsideration) (per curiam), the ARB denied the complainant's request for reconsideration. The ARB has previously identified four non-exclusive grounds for reconsidering a decision and order, which include whether the movant has demonstrated: (i) material differences in fact or law from those presented to the Board of which the moving party could not have known through reasonable diligence, (ii) new material facts that occurred after the Board's decision, (iii) a change in the law after the Board's decision, or (iv) failure to consider material facts presented to the Board before its decision. The complainant failed to demonstrate a ground upon which the ARB will grant reconsideration. Moreover, the complainant was a registered E-filer, which allowed him to access case filings in any location, including the Briefing Schedule and Order to Show Cause. The complainant filed his request for reconsideration utilizing the same electronic filing system the ARB used to serve the complainant with the Briefing Schedule, Order to Show Cause, and Order of Dismissal.