And substantial evidence also
[Page 5]
supports the ALJ's finding that Barclay fired Carter for abandoning the mail in Knoxville, not for refusing to drive the defective tractor.
Thus, Carter did not prove by a preponderance of the evidence that that he engaged in activity that the STAA protects. And even if he had, the record amply demonstrates that Barclay fired him because he abandoned the mail in Knoxville, not because he refused to drive the defective tractor. Therefore, we accept the ALJ's recommendation and DENY this complaint.
SO ORDERED.
OLIVER M. TRANSUE
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
[ENDNOTES]
1 49 U.S.C.A. § 31105 (West 2008). Regulations that implement the STAA are found at 29 C.F.R. Part 1978 (2007). Congress has amended the STAA since Carter filed his complaint. See Implementing Recommendations of the 9/11 Commission Act of 2007, P.L. 110-53, 121 Stat. 266 (Aug. 3, 2007). It is not necessary for us to determine whether the amendments are applicable to this case because even if they were, they would not affect our decision since they are not applicable to the issues presented for our review.
2 Carter v. Barclay, Inc., 2006-STA-022 (ALJ Sept. 22, 2006).
3 "The [ALJ's] decision shall be forwarded immediately, together with the record, to the Secretary for review by the Secretary or his or her designee." 29 C.F.R. § 1978.109(a).
The Secretary of Labor has delegated to the Administrative Review Board the authority to issue final agency decisions under the STAA and its implementing regulations. Secretary's Order 1-2002 (Delegation of Authority and Responsibility to the Administrative Review Board), 67 Fed. Reg. 64,272 (Oct. 17, 2002); 29 C.F.R. Part § 1978 (2004).
4 29 C.F.R. § 1978.109(c)(3). The Board reviews questions of law de novo. See Yellow Freight Sys., Inc. v. Reich, 8 F.3d 980, 986 (4th Cir. 1993).
5 Transcript (T.) 15-17.
6 Id. at 122, 138.
7 Carter gave three different explanations for his call to Porter. He testified that Allen told him to do so. T. 18. He later testified that he did not remember why he called Porter. T. 80. Earlier he told Labor Department investigators that he called Porter because Allen had "said something" about Porter when he called her. Respondent's Exhibit 10, at 59.
8 T. 18-19.
9 Respondent's Exhibit 1.
10 49 U.S.C.A. § 31105 (a).
11 See West v. Kasbar, Inc./Mail Contractors of America, ARB No. 04-155, ALJ No. 2004-STA-034, slip op. at 3-4 (ARB Nov. 30, 2005).
12 Respondent's Brief at 15-16. Carter did not file a brief.
13 See Minne v. Star Air, Inc., ARB No. 05-005, ALJ No. 2004-STA-026, slip op. at 10 (ARB Oct. 31, 2007).
14 49 U.S.C.A. § 31105 (a) (2).
15 See, e.g., Bates v. Kasbar, Inc., 1985-STA-011 (Sec'y May 29, 1986) (adopting ALJ's finding that when driver was offered another truck after attempts to repair his defective truck were unsuccessful, driver did not prove that employer refused to correct an unsafe condition).
16 See n.7.