ARB CASE NO. 07-062
ALJ CASE NO. 2007-STA-055
DATE: August 27, 2007
In the Matter of:
JOEL KING,
COMPLAINANT,
v.
U-HAUL COMPANY OF NEVADA,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Respondent:
Anderson B. Scott, Fisher & Scott LLP, Atlanta, Georgia
FINAL DECISION AND ORDER GRANTING COMPLAINANT’S
REQUEST TO WITHDRAW HIS OBJECTIONS TO OSHA’S FINDINGS
This case arises under Section 405, the
employee protection provision, of the Surface Transportation Assistance Act of
1982 (STAA).[1] The Complainant, Joel King
[Page 2]
(King), filed a complaint
with the United States Department of Labor’s Occupational Safety and Health
Administration (OSHA) alleging that his employer, the Respondent, U-Haul Company
of Nevada, fired him in retaliation for complaining about alleged violations of
truck safety regulations. OSHA found
that the complaint was untimely filed and denied it in August 2004. King
objected and requested a hearing by a Department of Labor Administrative Law Judge.[2]
On September 10, 2004, the Administrative
Law Judge (ALJ) to whom the case had been assigned issued a Notice of Trial. The
ALJ set the hearing for September 24, 2004, and ordered the parties to start
the discovery process. Five days later, the ALJ issued an Order to Show Cause
why King’s STAA complaint should be considered timely filed. Both parties
responded to the Show Cause Order. The ALJ ruled in January 2005 that King’s
STAA complaint was timely filed. The case was later reassigned to another ALJ.
The parties subsequently jointly requested that the hearing be continued until
a related matter before the National Labor Relations Board (NLRB) was resolved.
The ALJ granted the parties’ request for a stay. The NLRB matter was resolved in
September 2005.
In October 2005, the parties entered into
settlement discussions. In November 2005 however, the Respondent sought
dismissal of King’s STAA complaint, alleging estoppel and King’s lack of
standing. King opposed the motion and filed a counter-motion for a stay
pending bankruptcy court proceedings he had previously initiated. The Respondent
opposed King’s counter-motion. The ALJ denied the Respondent’s motion for
dismissal and granted King’s motion for a stay pending the answer to an inquiry
the ALJ ordered King to make to the bankruptcy trustee.
In May 2006, King filed a Motion for Summary
Judgment or Preliminary Reinstatement. In June 2006, the parties filed a
Stipulation for Stay to Participate in Mediation. The Chief Administrative Law
Judge appointed a settlement judge, but the case did not settle. The Respondent,
in August 2006, filed a response to King’s pending
[Page 3]
Motion. In September 2006,
King withdrew that Motion and requested that the hearing be held promptly. The
ALJ issued a Notice of Trial, scheduling the hearing for January 2007.
Prior to the hearing, the parties filed both
a Stipulation of Dismissal with Prejudice and a Consent Withdrawal of
Objections. In the Stipulation of Dismissal with Prejudice, the parties
stipulated to the “dismissal with prejudice of all claims brought by the
Complainant in this proceeding, with each party to bear his or her own costs
and attorney’s fees.” In the Consent Withdrawal of Objections, King withdrew
his objections to OSHA’s findings in denying his STAA complaint. King also
requested that the matter become final and not subject to judicial review. The
Respondent consented to both King’s withdrawal of his objections to OSHA’s denial
of his complaint and to King’s request that the matter become final and not
subject to judicial review.
On November 16, 2006, the ALJ issued a
Recommended Order Approving Withdrawal of Objections and Dismissing Claim. The
ALJ noted King’s withdrawal under 29 C.F.R. § 1978.111(c) of his objections to OSHA’s
findings in denying his complaint. The ALJ reinstated those findings and
indicated that they became the Secretary of Labor’s final decision in this
matter. The ALJ next addressed the parties’ stipulation of Dismissal with
Prejudice. Finding no evidence of any settlement agreement, the ALJ recommended
that the matter be dismissed with prejudice, with each party bearing its own
fees and costs.
The case is now before the Administrative
Review Board pursuant to the STAA’s automatic
review provisions.[3]
The Secretary of Labor has delegated to the Board her authority to issue final
agency decisions under the STAA.[4]
When reviewing STAA cases, the ARB is bound by the ALJ’s factual findings if
those findings are supported by substantial evidence in the record considered
as a whole.[5]
In reviewing the ALJ’s legal conclusions, the Board, as the Secretary’s
designee, acts with “all the powers [the Secretary] would have in making the
initial decision . . . .”[6]
Therefore, the Board reviews the ALJ’s legal conclusions de novo.[7]
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The
Board issued a Notice of Review and Briefing Schedule reminding the parties of
their right to file briefs with the Board in support of or in opposition to the
ALJ’s recommended order within thirty days of the date on which the ALJ issued
it.[8]
The Respondent has filed a response urging the Board to affirm the ALJ’s
recommended order dismissing King’s STAA claim because the parties jointly
requested its dismissal with prejudice and the Respondent consented to King’s
withdrawal of his objections to OSHA’s denial of his complaint.
The ALJ’s recommended order complies with applicable
STAA statutory and regulatory provisions. The STAA’s implementing regulation
at 29 C.F.R. § 1978.111(c) provides:
At any time before the findings or order
become final, a party may withdraw his objections to the findings or order by
filing a written withdrawal with the administrative law judge or, if the case
is on review, with the Administrative Review Board, United States Department of
Labor. The judge or the Administrative Review Board, United States Department
of Labor, as the case may be, shall affirm any portion of the findings or
preliminary order with respect to which the objection was withdrawn.[[9]]
Consistent
with 29 C.F.R. § 1978.111(c), the ALJ (1) recommended that King’s claim
be dismissed based on his withdrawal of his
objections to OSHA’s denial of his STAA complaint, and (2) reinstated those findings
denying his complaint. The Respondent consented to King’s withdrawal of his
objections to OSHA’s findings and the parties stipulated to the dismissal with
prejudice of King’s claim.
Accordingly,
we GRANT King’s request to withdraw his objections to OSHA’s findings
and AFFIRM those findings denying his complaint as provided in 29 C.F.R.
§ 1978.111(c).
SO ORDERED.
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
DAVID G. DYE
Administrative Appeals Judge
[1] 49 U.S.C.A. § 31105 (Thompson/West 2007). Pursuant to the STAA’s
whistleblower provision, a person may not discharge an employee, or discipline
or discriminate against an employee regarding pay, terms, or privileges of
employment, because:
(A)(i)
the employee, or another person at the employee’s request, has filed a
complaint or begun a proceeding related to a violation of a commercial motor
vehicle safety or security regulation, standard, or order, or has testified or
will testify in such a proceeding; or
(ii)
the person perceives that the employee has filed or is about to file a
complaint or has begun or is about to begin a proceeding related to a violation
of a commercial motor vehicle safety or security regulation, standard, or
order;
(B)
the employee refuses to operate a vehicle because –
(i)
the operation violates a regulation, standard, or order of the United States related
to the commercial motor vehicle safety, health, or security; or
(ii)
the employee has a reasonable apprehension of serious injury to the employee or
the public because of the vehicle’s hazardous safety or security condition.
49 U.S.C.A. § 31105 (A), (B).
[2] See 29 C.F.R. § 1978.105(a) (2006).
[3] See 49 U.S.C.A. § 31105(b)(2)(C); 29 C.F.R. § 1978.109(c)(1).
[4] Secretary’s Order
1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002); 29 C.F.R. § 1978.109(a).
[5] 29
C.F.R. § 1978.109(c)(3); BSP Trans, Inc. v. U.S. Dept of Labor, 160
F.3d 38, 46 (1st Cir. 1998); Castle Coal & Oil Co., Inc. v. Reich, 55
F.3d 41, 44 (2d Cir. 1995).
[6] 5 U.S.C.A. § 557(b) (West 1996).
[7] See Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1066 (5th
Cir. 1991).
[8] See 29 C.F.R. § 1978.109(a).
[9] 29 C.F.R. § 1978.111(c).
