ARB CASE NO. 07-015
ALJ CASE NO. 2006-STA-018
DATE: October 31, 2007
In the Matter of:
JOSEPH LEWMAN,
COMPLAINANT,
v.
KEN BRICK MASONRY SUPPLY,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL DECISION AND ORDER
This case arises under the employee protection provisions
of the Surface Transportation Assistance Act (STAA) of 1982, as amended and
recodified, 49 U.S.C.A. § 31105 (West 1997), and its implementing regulations,
29 C.F.R. Part 1978 (2007).[1]
Joseph Lewman filed a complaint with the Department of Labor’s
Occupational Safety and Health Administration (OSHA) alleging that Ken Brick
Masonry Supply terminated his employment in violation of the STAA. On October
27, 2006, an Administrative Law Judge (ALJ) issued an Order Dismissing Complaint,
recommending that the complaint be dismissed. For the following reasons we
dismiss the complaint.
[Page 2]
Background
Lewman worked as a
delivery truck driver for Ken Brick Masonry Supply from approximately December
21, 2005 to January 26, 2006. On January 31, 2006, he contacted OSHA by
telephone and alleged that Ken Brick Masonry Supply had discharged him. The
OSHA employee who spoke to Lewman “didn’t get a definite answer regarding
whether or not [Lewman] absolutely wanted a discrimination case opened.”[2]
OSHA initiated an
investigation into the discharge allegation but was unable to reestablish contact
with Lewman during the investigation. On March 2, 2006, OSHA dismissed Lewman’s
complaint “due to a lack of cooperation.”[3]
On March 10, 2006, OSHA forwarded the complaint to the Office of
Administrative Law Judges (OALJ).
On March 13, 2006,
Lewman contacted OSHA by letter to contend that he was discharged because he
refused to drive above the speed limit. Although the letter does not refer to
OSHA’s findings, it suggests that Lewman intended to appear at a hearing on his
complaint.[4]
On July 20, 2006, an ALJ issued a Notice of Hearing which he mailed to the
address Lewman provided in his March 13, 2006 letter to OSHA.
The ALJ
convened the hearing on Lewman’s complaint on September 21, 2006. Ken Brick
Masonry Supply appeared at the hearing. Lewman failed to appear either in
person or through counsel. In response, the ALJ issued a Show Cause Order on
September 25, 2006, directing Lewman to “explain his failure to appear at the
hearing and show cause, on or before October 13, 2006, why this matter should
not be dismissed.” The Show Cause Order urged Lewman to seek the assistance
of counsel and stated that if he did not respond, his complaint would be
dismissed. Lewman did not respond to the Show Cause Order.
On October 27, 2006,
the ALJ issued an Order Dismissing Complaint, concluding that Lewman’s
complaint should be dismissed for his failure to respond to the Show Cause
Order.
[Page 3]
This case is before
the Board pursuant to the STAA’s automatic review provisions.[5]
On November 14, 2006, the Board issued a Notice of Review and Briefing
Schedule, informing the parties of their right to file briefs in support of or
in opposition to the Order Dismissing Complaint. Neither party filed a brief.
Jurisdiction and Standard of Review
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.[6]
The ARB is required to issue “a final decision and order based on the record
and the decision and order of the administrative law judge.”[7]
The Board is bound by the ALJ’s factual findings if those findings are
supported by substantial evidence on the record considered as a whole.[8] The Board reviews questions of law de novo.[9]
Discussion
Courts possess the
“inherent power” to dismiss a case on their own initiative for lack of
prosecution.[10] This power is “governed not
by rule or statute but by the control necessarily vested in courts to manage
their own affairs so as to achieve the orderly and expeditious disposition of
cases.”[11] Like the courts, the
Department of Labor’s Administrative Law Judges and this Board must necessarily
manage their dockets in an effort to “achieve the orderly and expeditious
disposition of cases.” Thus, the Board will
[Page 4]
affirm an ALJ’s recommended
decision and order on the grounds of abandonment, where the facts dictate that
a party has failed to prosecute his or her case.[12]
Furthermore, the
applicable Rules of Practice and Procedure permit an ALJ to dismiss cases when
a party fails to comply with any of the ALJ’s orders.[13]
The rules of
procedure applicable to STAA hearings provide for dismissal of a complaint
based on abandonment:
A party shall be
deemed to have abandoned a request for hearing if neither the party nor his or
her representative appears at the time and place fixed for the hearing and
either (a) prior to the time for hearing such party does not show good cause as
to why neither he or she nor his or her representative can appear or (b) within
ten (10) days after the mailing of a notice to him or her by the administrative
law judge to show cause, such party does not show good cause for such failure
to appear and fails to notify the administrative law judge prior to the time
fixed for hearing that he or she cannot appear.
29 C.F.R. § 18.39(b).[14]
Dismissal as a
sanction for failure to prosecute is a matter within the ALJ’s sound
discretion.[15]
Lewman did not appear for his hearing and he failed to comply with the Show
Cause Order by explaining his absence from the hearing. Nor has Lewman
attempted to explain to the Board his failure to respond to the Show Cause
Order.
[Page 5]
Having considered the record and the ALJ’s reasoning, we conclude that
Lewman’s complaint should be dismissed because he abandoned his claim.
Conclusion
The Board AFFIRMS the ALJ’s decision and DISMISSES Lewman’s STAA complaint.
SO ORDERED.
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
DAVID G. DYE
Administrative Appeals Judge
[1] The STAA has been amended since Lewman filed his complaint. See
Implementing Recommendations of the 9/11 Commission Act of 2007, P.L. 110-53,
121 Stat. 266 (Aug. 3, 2007). Even if the amendments were applicable to his
complaint, they would not affect our decision.
[2] See
electronic message to Dennis Russell, OSHA Regional Supervisory Investigator,
which has been attached to the OSHA Determination and is designated “ORIGINAL
COMPLAINT 1/31/06 VERBAL.”
[3] OSHA Determination at 3.
[4] See
Mar. 13, 2006 letter from Lewman to OSHA at page 2 (“I Joseph William Lewman
will testified (sic) to and all about the complaint.”). OALJ received a copy
of this letter on March 16, 2006.
[5] “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).
[6] 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 (2005).
[7] 29 C.F.R. § 1978.109(c)(1).
[8] 29 C.F.R. § 1978.109(c)(3); BSP Trans, Inc. v. U.S. Dep’t of Labor, 160 F.3d 38, 46 (1st Cir. 1998).
[9] See Yellow Freight Sys., Inc. v. Reich, 8 F.3d 980, 986 (4th
Cir. 1993).
[10] Link v. Wabash R. R. Co., 370 U.S. 626, 630 (1962).
[11] Id. at 630-631.
[12] Kruml v.
Patriot Express, ARB 03-015, ALJ No. 2002-STA-007, slip op. at 4-5 (ARB
Feb. 25, 2004); Ass’t Sec’y for OSHA & Reichelderfer
v. Bridge Transp., Inc., ARB No. 02-068,
ALJ No. 2001-STA-040, slip op. at 3 (ARB Aug. 29, 2003); Tucker v. Conn.
Winpump Co., ARB No. 02-005, ALJ No. 2001-STA-053, slip op. at 4 (ARB Mar.
15, 2002); Curley v. Grand Rapids Iron & Metal Co., ARB No. 00-013,
ALJ No. 1999-STA-039, slip op. at 2 (ARB Feb. 9, 1999).
[13] See 29 C.F.R. § 18.6(d)(2)(v);
Dickson v. Butler Motor Transit, ARB No. 02-098, ALJ No. 2001-STA-039,
slip op. at 4 (ARB July 25, 2003) (ALJ acted within range of his discretion in
dismissing STAA complaints after complainant repeatedly ignored the ALJ’s
discovery and other orders.).
[14] Cf. Rose v. ATC Vancom, Inc., ARB No.
05-091, ALJ No. 2005-STA-014, slip op. at 3 (ARB Aug. 31, 2006).
[15] Ferguson v. Bomac Lubricant
Techs., Inc., ARB No. 04-057, ALJ No. 2002-STA-027,
slip op. at 15 (ARB June 29, 2005).
