· Mawhinney
v. Transportation Workers Union, ARB No. 15-013, ALJ No. 2012-AIR-14
(ARB Feb. 3, 2015)
Decision and Order on Reconsideration Denying Interlocutory Appeal PDF
Summary:
CONTENTIONS THAT ALJ’S DEFERRAL OF HEARING ON REMAND
UNTIL ARB RULED ON A RELATED CASE WAS A DENIAL OF DUE PROCESS, AND THAT ALJ HAD
ENGAGED IN EX PARTE COMMUNICATIONS, FOUND NOT TO CONSTITUTE GROUNDS FOR
INTERLOCUTORY APPEAL TO THE ARB
In Mawhinney
v. Transportation Workers Union, ARB No. 15-013, ALJ No.
2012-AIR-14 (ARB Jan. 21, 2015), the ARB dismissed the Complainant’s petition
for an interlocutory appeal for failure to reply to the ARB’s order to show
cause why the petition should not be dismissed.
It was subsequently determined that the Complainant had,
in fact, filed a timely response, and the ARB issued a decision on
reconsideration denying the petition based on the Complainant’s failure to
obtain certification from the ALJ of the issue for interlocutory appeal and
failure to demonstrate exceptional circumstances sufficient to invoke the ARB’s
interlocutory review of the issues presented. Mawhinney
v. Transportation Workers Union, ARB No. 15-013, ALJ No.
2012-AIR-14 (ARB Feb. 3, 2015). The matter had been remanded to the ALJ, who
deferred scheduling a hearing until the ARB ruled on a related pending appeal.
The ALJ had ordered, however, that discovery proceed in the interim. The
Complainant contended that the ALJ’s order denied him due process to reiterate
or amend arguments concerning whether the named Respondents could be held
individually liable, and had excluded the Complainant from input regarding ARB
remand orders. The Complainant also alleged that the ALJ had engaged in ex
parte communications with the Respondent and the Board. The ARB found that it
could fully consider and dispose of both issues upon appeal of the ALJ’s final
order in the case, should that be necessary. The ARB noted too that it is ”very
reluctant to interfere with an ALJ’s control over procedural and discovery
issues.“ USDOL/OALJ Reporter at 3, n.11 (citations omitted).
· Administrator,
Wage & Hour Div., USDOL v. Sirsai, Inc., ARB No. 12-102, ALJ No.
2011-LCA-1 (ARB Jan. 28, 2015)
Final Decision and Order PDF
Summary:
In Administrator,
Wage & Hour Div., USDOL v. Sirsai, Inc., ARB No. 12-102, ALJ
No. 2011-LCA-1 (ARB Jan. 28, 2015), the ARB summarily affirmed the ALJ’s
Decision and Order finding that the Respondents violated the H-1B regulations
when it misclassified various employees and paid them improper wages; “benched”
employees; failed to reimburse employees for business expenses; misrepresented
material facts on their LCAs regarding prevailing wages and employees’ worker
locations; and failed to comply with posting requirements. The ARB also
affirmed the ALJ’s conclusion that the actions were willful and that CMPs and
debarment were appropriate. The ARB rejected the Respondents’ argument on
appeal that the WHD provided them with insufficient notice of the extent of the
violations that WHD was investigating. The ARB agreed with the ALJ that sufficient
notice had been provided and that there had been no prejudicial effect of
altering the time frame of the period covered on the WH-56. The ARB noted that
the Respondents' violations had been “particularly egregious.”
· Mawhinney
v. Transportation Workers Union, ARB No. 15-013, ALJ No. 2012-AIR-14
(ARB Jan. 21, 2015)
Order Dismissing Interlocutory Appeal PDF
Summary:
In Mawhinney
v. Transportation Workers Union, ARB No. 15-013, ALJ No.
2012-AIR-14 (ARB Jan. 21, 2015), the ARB dismissed the Complainant’s petition
for an interlocutory appeal for failure to reply to the ARB’s order to show
cause why the petition should not be dismissed. It was subsequently determined
that the Complainant had, in fact, filed a timely response, and the ARB issued
a decision on reconsideration denying the petition based on the Complainant’s
failure to obtain certification from the ALJ of the issue for interlocutory
appeal and failure to demonstrate exceptional circumstances sufficient to
invoke the ARB’s interlocutory review of the issues presented. See Mawhinney
v. Transportation Workers Union, ARB No. 15-013, ALJ No.
2012-AIR-14 (ARB Feb. 3, 2015).
· Luder
v. Continental Airlines, Inc., ARB No. 13-026, ALJ No. 2008-AIR-9 (ARB
Jan. 7, 2015)
Order Awarding Attorney's Fees and Costs PDF
Summary:
ALJ HAS JURISDICTION TO ISSUE AN ATTORNEY FEE DECISION
WHILE APPEAL ON THE MERITS IS PENDING BEFORE THE ARB
An ALJ has jurisdiction to issue an attorney fee award in
an AIR21 whistleblower case even though the Respondent’s appeal on the merits
is pending before the ARB. Luder
v. Continental Airlines, Inc., ARB No. 13-026, ALJ No. 2008-AIR-9
(ARB Jan. 7, 2015).
Source: Department
of Labor
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