ARB CASE NO. 03-101
ALJ CASE NO. 2002-AIR-7
DATE: July 29, 2003
In the Matter of:
JAMES M. STONEKING,
COMPLAINANT,
v.
AVBASE AVIATION,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearance:
For the Respondent:
Roy J. Shechter, Esq., Lichko & Schechter,Cleveland, Ohio
FINAL DECISION AND ORDER
Background
James A. Stoneking filed a complaint alleging that his former employer, AvBase Aviation, LLC (AvBase), retaliated against him in violation of the whistleblower protection provisions of Section 519 of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21), 49 U.S.C.A. § 42121 (West 1997) and its implementing regulations, 29 C.F.R. Part 1979. On March 17, 2003, a Department of Labor Administrative Law Judge, (ALJ) issued a Decision and Order (D. & O.) concluding that Stoneking's complaint should be dismissed. The D. & O. included this "Notice":
This decision shall become the final order of the Secretary pursuant to 29 C.F.R. § 1979.110 (2002), unless a petition for review is timely filed with the Administrative Review Board ("Board"), United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, D.C. 20210. Any party desiring to seek review, including judicial review, of a decision of the administrative law judge must file a written petition for review with the Board, which has been delegated the authority to act for the Secretary and issue final decisions under 29 C.F.R. Part 1979. To be effective, a petition must be received by the Board within 15 days of the date of the decision of the administrative law judge. The petition must be served on all parties and on the Chief Administrative Law Judge. . . . See 29 C.F.R. §§ 1979.109(c) and 1979.110(a) and (b).
1 On April 1, 2002, the Occupational Safety and Health Administration (OSHA) published the interim final rules applicable to this case. 67 Fed. Reg. 15454. OSHA subsequently published final rules effective March 21, 2003. These rules provide that a petition for review must be filed within ten business days of the date of the administrative law judge's decision, however, "the date of the postmark, facsimile transmittal, or e-mail communication will be considered to be the date of filing; if the petition is filed in person, by hand delivery or other means, the petition is considered filed upon receipt." 29 C.F.R. § 1979.110, 68 Fed. Reg. 14100 (March 21, 2003).