Aityahia v. Air Line Pilots Association (agency decision, May 19, 2020)

Plain-English summary

Former Mesa Airlines pilot Aziz Aityahia alleged that the Air Line Pilots Association was complicit in his 2013 termination and Mesa's 2017 refusal to rehire him. His challenge to the union's arbitration representation was filed more than three years after the arbitration award, beyond the then-applicable AIR21 deadline. The ALJ also found no evidence that the union acted for Mesa, caused the later rehire decision, or distributed damaging employment information. The Board agreed that the union took no adverse personnel action and that the ALJ lacked authority to review a separate Occupational Safety and Health Act claim. It adopted the attached order and affirmed dismissal.

Decision snapshot

• Cited authorities: 49 U.S.C. § 42121; 29 U.S.C. § 660(c); 29 C.F.R. §§ 18.72(a), 1979.102(b), and 1979.110
• Outcome: The AIR21 claims were dismissed as untimely or unsupported, and the separate OSH Act claim was dismissed for lack of an administrative appellate remedy.
• Key point: A union's representation is not an adverse personnel action without evidence that it acted as the employer's agent or caused the challenged employment decision.

Full text (DOL official public release)

U.S. Department of Labor Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001

In the Matter of:


AZIZ AITYAHIA,                                   ARB CASE NO. 2019-0037

             COMPLAINANT,                        ALJ CASE NO. 2018-AIR-00042

      v.                                         DATE: May 19, 2020

AIR LINE PILOTS ASSOCIATION,

             RESPONDENT.

Appearances:

For the Complainant:
      R. Chris Pittard, Esq.; Pittard Law Firm; San Antonio, Texas

For the Respondent:
      John E. Wells, Esq.; Air Lines Pilots Association International;
      Herndon, Virginia

Before: James A. Haynes, Heather C. Leslie, and James D. McGinley,
Administrative Appeals Judges.


                              DECISION AND ORDER

      PER CURIAM. The Complainant, Aziz Aityahia, filed a retaliation complaint
under the employee protection provision of the Wendell H. Ford Aviation
Investment and Reform Act for the 21st Century (AIR 21)1 with the Department of
Labor’s Occupational Safety and Health Administration (OSHA). Complainant


1      49 U.S.C. § 42121 (2000). AIR 21’s implementing regulations are found at 29 C.F.R.
Part 1979 (2018).
                                     2

alleged that Respondent Air Line Pilots Association (ALPA) was complicit in the termination of his employment with Mesa Airlines (Mesa) on May 10, 2013, and also in Mesa’s refusal to rehire him in 2017. OSHA concluded Complainant suffered an adverse employment action when he was terminated in 2013, but dismissed the complaint because it was not filed within 90 days of the alleged adverse action. The case was referred to the Office of Administrative Law Judges (OALJ) at Complainant’s request. The ALJ granted Respondent’s Motion to Dismiss, holding that the OALJ lacked jurisdiction to consider complaints under Section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. § 660(c) (1970) (OSH Act) and that the complaint under the whistleblower provisions of AIR 21 was untimely. Order Granting Motion for Summary Decision (Feb. 14, 2019). Complainant filed a petition requesting that the Administrative Review Board (ARB or the Board) review the ALJ’s order. We granted that petition and now affirm.

                JURISDICTION AND STANDARD OF REVIEW

   The Administrative Review Board has jurisdiction to review the ALJ’s AIR 21

decision pursuant to Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of Responsibility to the Administrative Review Board (Secretary’s discretionary review of ARB decisions)), 85 Fed. Reg. 13,186 (Mar. 6, 2020). The ARB will affirm the ALJ’s factual findings if supported by substantial evidence, but reviews all conclusions of law de novo. Summary decision is permitted when “there is no genuine dispute as to any material fact and the movant is entitled to decision as a matter of law.” 29 C.F.R. § 18.72(a) (2018). On appeal from summary decision, we review the record on the whole in the light most favorable to the non-moving party. Micallef v. Harrah’s Rincon Casino & Resort, ARB No. 2016-0095, ALJ No. 2015-SOX-00025, slip op. at 3 (ARB July 5, 2018).

                               CONCLUSION

  The ALJ’s determination that there is no evidence that ALPA was complicit

in Mesa Airlines’ decision to rehire Complainant is correct. For the reasons stated by the ALJ, there is no genuine dispute of material fact that Respondent might have taken an adverse action against Complainant, a required element for relief.
3

We agree that the ALJ correctly dismissed the claim.2 Moreover, the ALJ correctly concluded that Section 11(c)(2) of the OSH Act does not provide an administrative appellate remedy for complaints that are dismissed by the Secretary of Labor. Thus, we ADOPT the ALJ’s well-reasoned order Ruling on Respondent’s Motion to Dismiss as the final agency decision in this matter and ATTACH a copy hereto.

  SO ORDERED.

2 We reject Aityahia’s submission of new exhibits not considered by the ALJ. When deciding whether to consider new evidence, the Board ordinarily relies on the same standard found in the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges, 29 C.F.R. Part 18 (2005), which provides that, “[n]o additional evidence may be admitted unless the offering party shows that new and material evidence has become available that could not have been discovered with reasonable diligence before the record closed.” 29 C.F.R. § 18.90(b)(1). Aityahia has not established that his additional exhibits were not available at the time of the ALJ’s consideration of ALPA’s motion for summary decision. We therefore do not consider them in our review. U.S. Department of Labor Office of Administrative Law Judges
90 Seventh Street, Suite 4-800
San Francisco, CA 94103-1516

                                      (415) 625-2200
                                      (415) 625-2201 (FAX)



                                                                            Issue Date: 14 February 2019
 CASE NO.: 2018-AIR-00042


 In the Matter of:

 AZIZ AITYAHIA,
         Complainant,

         vs.

 AIR LINE PILOTS ASSOCIATION
      Respondent,


                ORDER GRANTING MOTION FOR SUMMARY DECISION

        This matter was brought by Aziz Aityahia (“Complainant”) against the Air
 Line Pilots Association (“Respondent”) under the whistleblower provision of the
 Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (“AIR
 21” or “the Act”), 49 U.S.C. section 42121, with implementing regulations at 29
 C.F.R. Part 1979, Subpart B. The hearing is currently scheduled for February 26,
 2019, in Phoenix, Arizona.

        On January 18, 2019, Respondent filed a Motion to Dismiss Appeal or In the
 Alternative for Summary Decision (“Motion”). On February 5, 2019, Complainant
 filed a Response.1

                                       I. LEGAL STANDARDS

                                           Motion to Dismiss

        Under this court’s rules a party “may move to dismiss part or all of the
 matter for reasons recognized under controlling law, such as lack of subject matter
 jurisdiction, failure to state a claim upon which relief can be granted, or
 untimeliness.” 29 C.F.R. § 18.70(c).

 1 Under this court’s rules of practice and procedure Complainant’s Response was filed untimely. 29

 C.F.R. § 18.33(d). Failure to timely file an opposition may result in the requested relief being grant-
 ed. Because there is no sign of prejudice to the opposing party as a result of the late filing, I elect to
 accept and consider Complainant’s response.
    The corresponding motion in the Federal Rules of Civil Procedure is 12(b)(6).

But because "federal litigation materially differs from administrative whistleblower litigation within the Department of Labor . . . a different legal standard for stating a claim" is afforded in cases pending before the agency. Gallas v. Medical Center of Aurora, ARB No. 16-012, ALJ No. 2015-SOX-013 (ARB April 29, 2017.)2 In administrative whistleblower proceedings before the Department of Labor a sufficient statement of the claims need only provide

   1. Some facts about the protected activity, showing some "relatedness" to the
   laws and regulations of one of the statutes in our jurisdiction;

   2. Some facts about the adverse action;

   3. A general assertion of causation and;

   4. A description of the relief that is sought.

Evans v. EPA, ARB No. 08-059, ALJ No. 2008-CAA-003, at 23 (ARB July 31, 2012.)

                            Motion for Summary Decision

   On a motion for summary decision the court must determine, after viewing

the evidence in the light most favorable to the nonmoving party, whether there are any genuine disputes of material fact, and whether the moving party is entitled to summary decision as a matter of law. 29 C.F.R. § 18.72(a); O’Hara v. Weeks Marine, Inc., 294 F.3d 55 (2d Cir. 2002); Brockington v. Certified Electric, Inc., 903 F.2d 1523 (11th Cir. 1990), cert. denied, 498 U.S. 1026 (1991). I must look at the record as a whole, and determine whether a fact-finder could rule in the non-moving party’s favor. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587.

  An issue is “genuine” if there is sufficient evidence to support the alleged

factual dispute, and a fact is “material” if, under the substantive law, it affects the outcome of the litigation. Hall v. Newport News Shipbuilding & Dry Dock Co., 24 BRBS 1, 4 (1990). To rule on a Motion for Summary Decision, I compare the evidence presented in the moving papers with the evidence presented in the opposing papers and determine whether there is any conflict in the evidence on any

2 Respondent cites to Powers for the proposition that the corresponding Federal Rule of Civil Proce- dure addressing motions to dismiss, Rule 12(b)(6), sets the standard for determining whether a whis- tleblower states a claim . Powers v. Paper, Allied-Indus., Chem. & Energy Wkrs. Int’l Union (PACE), ARB NO 04-11, ALJ No. 2004-AIR-19 (ARB Aug. 31, 2007). But the ARB overruled Powers in Evans v. EPA, ARB No. 08-059, ALJ No. 2008-CAA-003, at 23 (ARB July 31, 2012)(holding that the standard for dismissal for administrative whistleblower proceedings before the DOL is lower than the 12(b)(6) standard established in federal litigation.)

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material issue. I do not weigh the evidence. If there is a conflict in the evidence on any material issue, I deny the motion, and the matter proceeds to hearing. If there is no conflict in the evidence on any material point, and the moving party is entitled to a decision as a matter of law, I grant the motion, and decide the case in favor of the moving party without any additional hearing. See 29 C.F.R. § 18.72(a); Brockington v. Certified Electric, Inc., 903 F.2d 1523 (11th Cir. 1990), cert. denied, 498 U.S. 1026 (1991). The nonmoving party’s evidence “is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). But a party “cannot rest on the allegations contained in his complaint in opposition to a properly supported summary judgment motion made against him.” First Nat. Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289 (1968).

                        II. EVIDENCE OF RECORD

   Complainant served as a pilot for Mesa Airlines (“Mesa”) from 2008 to 2009,

but was furloughed in 2009. (Arbitration Transcript, “Transcript,” pp. 7-8.) In March, 2013, Mesa recalled him from that furlough. (Transcript, p. 8.) To reclaim his position as a pilot he had to successfully complete a training program. Id. Complainant received an unsatisfactory rating on a simulator training three different times, and Mesa decided they would not allow him to continue with the program. (Transcript, p. 10.) Mesa terminated him on May 10, 2013. (Respondent’s Exhibit, “RX,” C.) On May 16, 2013, Respondent filed a grievance with Mesa on behalf of Complainant, and a hearing was held on July 10, 2013. (RX C.) On July 15, 2013, Mesa issued its written decision denying the grievance. The Respondent, representing Complainant, then submitted the grievance to the Airline System Board of Adjustment for arbitration. (RX B.)

   Respondent’s Senior Labor Relations Counsel, John B. Dean, represented

Complainant at the System Board of Adjustment arbitration. (Transcript, p. 4);(Complainant’s Exhibit “CX” 1.) Complainant sought reinstatement and the opportunity to continue with training. (RX B.) On October 30, 2014, the arbitrator issued an award finding justifiable cause to terminate Complainant’s employment and denying reinstatement. (CX 1.) But the arbitrator awarded Complainant back pay and benefits because of Mesa’s violation of a procedural provision in the collective bargaining agreement requiring a training review board. (RX C);(CX 1.) In the award the arbitrator stated “the Employer persuasively demonstrated that its termination of the Grievant was justified on the grounds of passenger/crew member safety,” and that Mesa “made out a colorable case that arbitral reinstatement of this Grievant might well constitute a violation of public policy” (RX C.)

 Complainant applied for a new First Officer position with Mesa in 2017. On

November 27, 2017, Complainant received an email from Mesa Airlines Flight Operations Recruitment stating they appreciated his interest in a First Officer

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position, but that the “human resources department has noted that you are ineligible for rehire” (CX 3.)

   On December 12, 2017, Complainant filed a complaint with the Secretary of

Labor alleging that Respondent retaliated against him in violation of AIR 21. (CX 2.) In his complaint he stated that he “continue [sic] to suffer adverse action because
[he] have [sic] engaged in protected activities,” and asserted that Mesa fired him in May 2013, refused to rehire him in November, 2017, and continues to keep false statements about him, causing prospective employers to not hire him. (RX B);(CX 2.). The Secretary concluded Complained suffered an adverse employment action when he was terminated in 2013, but dismissed the complaint because it was not filed within 90 days of the alleged adverse action. (RX A);(CX 4.). In his Objections to the Findings of the Secretary of Labor Complainant asserts

  1. His complaint against Respondent was timely filed;

  2. Respondent discriminated against him because it was aware of his
  protected activity and failed to provide adequate representation, including,

         a. deliberately failing to “defend against the cause stated for
         employment termination by Mesa Airlines”; and

         b. “deliberately permit[ing] the objection for reinstatement during the
         grievance process.”

(RX B.)

 Complainant has a separate claim against Mesa pending before the Office of

Administrative Law Judges. Aityahia v. Mesa Airlines, ALJ No. 2018-AIR-00044.

                                III. ANALYSIS

             Section 11(c) of Occupational Safety and Health Act

   Complainant alleges in his response that Respondent violated Section 11(c) of

the Occupational Safety and Health Act, (“OSHA”) 29 U.S.C.S. §660(c). But I must dismiss the complaint as it relates to Section 11(c) because this court has no juris- diction over such claims.
An employee who believes that he has been discriminated against by any
person in violation of 11(c) may file a complaint with the Secretary alleging such discrimination. 29 U.S.C.S. § 660(c)(2). If appropriate the Secretary shall investi- gate, and if a violation is found shall bring an action in any appropriate U.S. district court. 29 U.S.C.S. § 660(c)(2). Complainant’s own exhibit, an informational sheet on

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Section 11(c) distributed by OSHA, states that if the Administrator finds no viola- tion the employee “may seek review by the Directorate of Whistleblower Protection Programs (DWPP)…” (CX 6.)
Thus, if any court had jurisdiction over the Section 11(c) claim, it would be
the appropriate U.S. district court. If Complainant disagreed with the Administra- tor’s determination of no violation he could have sought review by the DWPP. But the Complainant has no private right of action under § 11(c), and the OALJ has no jurisdiction to act on it. See Wood v. Dep't of Labor, 275 F.3d 107 (D.C. Cir. 2001) (Secretary's decision to not bring an action in district court under § 11(c) is discre- tionary and not subject to judicial review); George v. Aztec Rental Center, Inc., 763 F.2d 184 (5th Cir. 1985) (no private right of action); McCarthy v. The Bark Peking, 676 F.2d 42 (2d Cir. 1982) (same); Taylor v. Brighton Corp., 616 F.2d 256 (6th Cir. 1980) (same); Fletcher v. United Parcel Serv., Local Union 705, 155 F. Supp.2d 954, 957 (N.D. Ill. 2001); Holmes v. Schneider Power Corp., 628 F. Supp. 937 (W.D. Pa. 1986), judgment affirmed, 806 F.2d 252 (3d Cir. 1986); Powell v. Globe Indus., Inc., 431 F. Supp. 1096 (N.D. Ohio 1977). Thus, I dismiss Complainant’s claims under Section 11(c) because I do not have jurisdiction over it, and thus it is not a claim up- on which relief can be granted. 29 C.F.R. § 18.70(c)
The AIR 21 Whistleblower Provision

1. The Legal Standard

   Complainant alleges Respondent discriminated against him in violation of
   AIR 21. It is a violation of AIR 21 “for any air carrier or contractor or subcontractor of an air carrier to intimidate, threaten, restrain, coerce, blacklist, discharge or in any other manner discriminate against any employee” because the employee has engaged in protected activity. 29 C.F.R. § 1979.102(b). Protected activity includes providing information, filing a proceeding, or participating in a proceeding, "relating to any violation or alleged violation of any order, regulation, or standard of the Fed- eral Aviation Administration or any other provision of Federal law relating to air carrier safety under subtitle VII of title 49 of the United States Code or under any other law of the United States.” 29 C.F.R. § 1979.102(b).

   There is a two-pronged burden-shifting framework applicable to a whistle-
   

   blower claim under AIR 21. 42 U.S.C § 42121(b). The complainant has the initial burden of satisfying prong one of the two-part test. See 42 U.S.C § 42121(b). To sat- isfy prong one he must demonstrate, by a preponderance of the evidence, that: (1) he engaged in protected activity; (2) the employer knew he engaged in protected activi- ty; (3) he suffered an adverse personnel action by employer; and (4) his protected activity was a contributing factor in the adverse action. Clemmons v. Ameristar Airways, Inc., ARB Nos. 05-048, 05-096, ALJ No. 2004-AIR -11, slip op. at 6 (ARB June 29, 2007) (citing 49 U.S.C. § 42121(b)(2)(B)(i); 29 C.F.R. § 1979.104(b)(1)).42 U.S.C § 42121(b). If the complainant demonstrates all four elements, then the bur-

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   den shifts to the employer to show, by clear and convincing evidence, that it would have taken the same adverse personnel action notwithstanding the protected activi- ty. Cain v. BNSF Railway Co., ARB No. 13-006, ALJ No. 2012-FRS-019, slip op. at 3 (ARB Sep. 18, 2014). If Complainant cannot demonstrate each of the four elements then his claim is unsuccessful, and the employer prevails.

2. Analysis

   The adverse actions Complainant alleges against Respondent include Re-
   spondent’s failure to provide adequate representation at the arbitration upholding his termination from Mesa in 2013, which he alleges shows Respondent was com- plicit with Mesa in “collectively” punishing him, and Mesa’s blacklisting and subse- quent failure to rehire him in November, 2017.

   First, I dismiss as untimely the allegations in his complaint concerning Re-
   

   spondent’s alleged inadequate representation at the arbitration upholding his ter- mination from Mesa in 2013. In its arbitration award issued on October 30, 2014, the System Board of Adjust upheld Complainant’s 2013 termination. Upon the com- pletion of the arbitration and issuance of the award Complainant was fully on notice of his termination and any perceived deficiencies in Respondent’s representation of him at the arbitration. Yet he did not file the complaint with OSHA until over three years later on December 12, 2017. (Attachment B). A complainant alleging a viola- tion under the Act must be filed with the Secretary within 90 days after the date on which such violation occurs. 42 U.S.C.S. §42121(b). Complainant failed to file within 90 days of the alleged adverse action becoming final, and thus his complaint regard- ing the termination is dismissed as untimely. 29 C.F.R. § 18.70(c).

   Alternatively, even if the complaint was timely, I would grant summary deci-
   sion because there is no genuine dispute of material fact. Respondent’s role as a la- bor representative in arbitration, including any alleged ineffective representation, is not an adverse personnel action. Respondent is a labor union, not Complainant’s employer, and thus generally cannot take any personnel action against him. In Powers the ARB held that an ALJ could have jurisdiction over a whistleblower complaint concerning a union if the union was acting as an agent on behalf of the employer. See Powers v. Paper, Allied-Industrial Chemical & Energy Workers Int'l Union (PACE), ARB No. 04-111, ALJ No. 2004-AIR-19, at *30-31 (ARB Aug. 31, 2007)(vacating and remanding ALJ’s dismissal of claim where the complaint alleged the union was acting as an agent of the employer when it failed to provide adequate assistance, because it was directed by the employer to not to provide it.) Complain- ant concludes Respondent was complicit and, together with Mesa, “collectively” pun- ished him. But unlike in Powers, Complainant alleges no facts sufficient to support that conclusion. There is no evidence Respondent acted on Mesa’s behalf, or under Mesa’s direction, at the arbitration. Moreover, unlike in Powers where the union al- legedly did not investigate or conduct a hearing on grievances filed against the em- ployer because the employer directed it not to, id., here the evidence demonstrates

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   Respondent expeditiously filed a grievance, held a hearing, petitioned for arbitra- tion, and provided skilled representation of Complainant at the arbitration. Since there are no facts alleged which would support the conclusory assertion that Mesa and Respondent acted “collectively,” I grant summary decision as to the allegations against Respondent for inadequate representation because there is no genuine dis- pute as to whether Respondent took an adverse personnel action against Complain- ant.

   Second, I find there is no genuine dispute as to a material fact regarding the
   remaining alleged adverse actions. Complainant alleges Mesa finding him ineligible for rehire and providing false statements about his performance to prospective em- ployers is an adverse action by Respondent because Respondent was “complicit with Mesa Airlines to deny him further employment.” (Response, p. 2.). I find Respond- ent entitled to summary decision as a matter of law on these complaints. 29 C.F.R. § 18.70(c). Complainant asserts Respondent was “complicit” because “as a result of Respondent ALPA’s deliberate failures to properly represent [him] during the arbi- tration/grievance process, the termination was upheld and resulted in the most re- cent adverse action—the failure to rehire.” (Response, p. 4.) This assertion is ex- tremely attenuated, and alleges no actual action by Respondent. Complainant has not alleged or offered any facts to suggest Respondent directly disseminated damag- ing information about him to prospective employers. See Beatty v. Inman Trucking Mgmt., Inc., ARB No. 11-021, ALJ Nos. 2008-STA-020,-021, slip op. at 6 (ARB June 28, 2012)(defining blacklisting as disseminating damaging information that affirm- atively prevents another from finding employment.) He also does not allege, or prof- fer any facts to suggest, that Respondent in any way determines or controls the statements Mesa provides to prospective employers. Complainant also fails to allege or proffer any evidence that Respondent had anything whatever to do with Mesa’s 2017 decision not to re-hire him.

   In essence, Complainant alleges if Respondent had not failed adequately to
   represent him at the arbitration in 2013, he would have been reinstated, and thus Mesa would not have had the chance to not re-hire him, and would not have provid- ed unflattering statements to other prospective employers in 2017. Complainant cannot circumvent the untimeliness of his allegation regarding inadequate repre- sentation at the arbitration in 2013 by asserting it triggered an adverse action by an entirely different party four years later. There is no genuine dispute regarding these adverse actions because Complainant has not provided any, much less suffi- cient, evidence to supports his position that the alleged adverse actions by Mesa al- so constitute adverse actions by Respondent.

   To prevail on his claims Complainant must demonstrate Respondent took an
   actionable adverse action against him. He has failed to proffer any facts to suggest it has done so. Having found no actionable adverse action I need not address the three other factors. A fact-finder could not rule in Complainant’s favor, and thus I grant summary decision for Respondent as to all claims against it.

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                                IV. ORDER
   

   For the reasons stated above, Respondent’s Motion to Dismiss or in the Al-
   ternative for Summary Decision is GRANTED.

   The February 26, 2019, hearing date in this matter is vacated.

   This order does not affect the proceedings in Aityahia v. Mesa Airlines, 2018-
   AIR-00044.

   SO ORDERED.

                                   CHRISTOPHER LARSEN
                                   Administrative Law Judge
   

NOTICE OF APPEAL RIGHTS: To appeal, you must file a Petition for Review (§Petition§) with the Administrative Review Board (§Board§) within ten (10) business days of the date of issuance of the administrative law judge’s decision. The Board's address is: Administrative Review Board, U.S. Department of Labor, Suite S-5220, 200 Constitution Avenue, NW, Washington DC 20210, for traditional paper filing. Alternatively, the Board offers an Electronic File and Service Request (EFSR) system. The EFSR for electronic filing (eFile) permits the submission of forms and documents to the Board through the Internet instead of using postal mail and fax. The EFSR portal allows parties to file new appeals electronically, receive electronic service of Board issuances, file briefs and motions electronically, and check the status of existing appeals via a web-based interface accessible 24 hours every day. No paper copies need be filed.

An e-Filer must register as a user, by filing an online registration form. To register, the e-Filer must have a valid e-mail address. The Board must validate the e-Filer before he or she may file any e-Filed document. After the Board has accepted an e- Filing, it is handled just as it would be had it been filed in a more traditional manner. e-Filers will also have access to electronic service (eService), which is simply a way to receive documents, issued by the Board, through the Internet instead of mailing paper notices/documents.

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Information regarding registration for access to the EFSR system, as well as a step by step user guide and FAQs can be found at: https://dol-appeals.entellitrak.com. If you have any questions or comments, please contact: [email protected]

Your Petition is considered filed on the date of its postmark, facsimile transmittal, or e-filing; but if you file it in person, by hand-delivery or other means, it is filed when the Board receives it. See 29 C.F.R. § 1979.110(a). Your Petition must specifically identify the findings, conclusions or orders to which you object. You waive any objections you do not raise specifically. See 29 C.F.R. § 1979.110(a).

At the time you file the Petition with the Board, you must serve it on all parties as well as the Chief Administrative Law Judge, U.S. Department of Labor, Office of Administrative Law Judges, 800 K Street, NW, Suite 400-North, Washington, DC 20001-8002. You must also serve the Assistant Secretary, Occupational Safety and Health Administration and the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, Washington, DC 20210. See 29 C.F.R. § 1979.110(a).

If filing paper copies, you must file an original and four copies of the petition for review with the Board, together with one copy of this decision. In addition, within 30 calendar days of filing the petition for review you must file with the Board an original and four copies of a supporting legal brief of points and authorities, not to exceed thirty double-spaced typed pages, and you may file an appendix (one copy only) consisting of relevant excerpts of the record of the proceedings from which the appeal is taken, upon which you rely in support of your petition for review. If you e- File your petition and opening brief, only one copy need be uploaded.

Any response in opposition to a petition for review must be filed with the Board within 30 calendar days from the date of filing of the petitioning party§s supporting legal brief of points and authorities. The response in opposition to the petition for review must include an original and four copies of the responding party§s legal brief of points and authorities in opposition to the petition, not to exceed thirty double- spaced typed pages, and may include an appendix (one copy only) consisting of relevant excerpts of the record of the proceedings from which appeal has been taken, upon which the responding party relies. If you e-File your responsive brief, only one copy need be uploaded.

Upon receipt of a legal brief filed in opposition to a petition for review, the petitioning party may file a reply brief (original and four copies), not to exceed ten double-spaced typed pages, within such time period as may be ordered by the Board. If you e-File your reply brief, only one copy need be uploaded.

If no Petition is timely filed, the administrative law judge§s decision becomes the final order of the Secretary of Labor pursuant to 29 C.F.R. § 1979.110. Even if a

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Petition is timely filed, the administrative law judge§s decision becomes the final order of the Secretary of Labor unless the Board issues an order within thirty (30) days of the date the Petition is filed notifying the parties that it has accepted the case for review. See 29 C.F.R. §§ 1979.109(c) and 1979.110(a) and (b).

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