ARB CASE NO. 99-037
ALJ CASE NO. 1998-STA-28
DATE: October 29, 1999
In the Matter of:
LARRY E. EASH, SR.,
COMPLAINANT,
v.
ROADWAY EXPRESS, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Paul O. Taylor, Esq. Eagan, MN
For the Respondent:
John T. Landwehr, Esq. Eastman & Smith, Ltd., Toledo,
OH
DECISION AND ORDER OF REMAND
Complainant Larry E. Eash, Sr. (Eash) filed a complaint against his employer,
Respondent Roadway Express, Inc. (Roadway) under section 405 of the Surface Transportation
Assistance Act of 1982 (STAA), as amended, 49 U.S.C. §31105 (1994). The Administrative Law
Judge (ALJ) assigned to the case issued a Recommended Decision and Order (R. D. & O.) in which the
ALJ determined that negotiations to settle the action subsequent to Eash's filing of the complaint had
resulted in an enforceable settlement agreement. The ALJ found that Eash either had accepted or had
authorized acceptance of an offer to settle the complaint; that an agreement therefore existed; and that the
[Page 2]
agreement should be approved because it
constituted a fair, adequate and reasonable settlement of the complaint. We disagree with the ALJ's finding
that the parties entered into an enforceable settlement. Accordingly, the complaint is remanded to the ALJ
for a hearing on the merits.
BACKGROUND
Eash was employed by Roadway beginning in March 1988 as an operator of
commercial motor vehicles. Eash maintained a near perfect work record until late 1997 and early 1998
when he received disciplinary letters and was suspended for having declined two work calls.
In March 1998, in response to the warning letters and suspension, Eash filed a
STAA section 405 complaint of unlawful discrimination with the Occupational Safety and Health
Administration (OSHA). Eash alleged that Roadway issued the disciplinary letters and suspended him in
retaliation for complaining about operating a commercial motor vehicle when fatigued and for refusing to
operate a vehicle because he was fatigued, in violation of 49 U.S.C. §31105(a)(1)(A) and (B) and
the Department of Transportation's "fatigue rule."1
1See 49 C.F.R. §392.3
(1999) (prohibiting any driver from operating, and any motor carrier from requiring or permitting a driver
to operate, a commercial motor vehicle "while the driver's ability or alertness is so impaired, or so
likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to
begin or continue to operate the commercial motor vehicle").
2 Eash was engaged in his line haul
truck driving duties during the course of the settlement negotiations.
3 The court in Macktal
cited legislative history evincing congressional intent. In comments explaining the addition of the
"participation and consent" requirement under the parallel employee protection provision of
the Safe Drinking Water Act, 42 U.S.C. §300j-9i, a co-sponsor of the amendment to include the
requirement stated that it "is important because the Labor Department has found . . . that as the cases
near the final steps of the machinery there is a tendency for settlements to be entered into. It is important
that we guarantee by statute that the employee's interests not be compromised in these situations."
Macktal v. Sec'y of Labor, 923 F.2d at 1157, quoting 102 Cong. Rec. 36393 (1974)
(Representative Symington).
4 Roadway's additional
"concession" was not consideration. Roadway offered essentially to comply with the STAA
by agreeing not to retaliate against Eash for filing the discrimination complaint. Eash, however, was entitled
by law to this STAA protection. See John D. Calamari & Joseph M. Perillo, The Law of
Contracts §4-2 (consideration requires that a promisee suffer detriment, "that is, do or promise
to do what he is not legally obligated to do").
5 Apparent authority arises "as
to a third person by written or spoken words or any other conduct of the principal which, reasonably
interpreted, causes the third person to believe that the principal consents to have the act done on his behalf
by the person purporting to act for him." Restatement (Second) of Agency §27 (1958).
Here, Eash never spoke to Landwehr directly or engaged in any conduct towards Landwehr which would
cause Landwehr to understand that Tucker was authorized to settle the complaint. Edwards v. Borne,
Inc., 792 F.2d at 390-391 (apparent authority not present where record devoid of direct
communication from client to opposing attorney). Landwehr conducted his settlement discussions
exclusively with Tucker, who as the agent was not capable of imbuing himself with the apparent authority
to settle since creation of that authority rested solely with Eash as principal. See Evans v. Skinner,
742 F. Supp. 30, 32-33 (D.D.C. 1990) (the issue is whether the principal has made
representations concerning the agent's authority to the third party) (emphasis added) .
6 The manifestation rather than the
intention of the principal is important. "[W]henever the principal manifests to the agent that the agent
is to act on his account, authority exists although the principal is not in fact willing that he should do
so." Restatement (Second) of Agency §26, at comment (a).
8 Eash stated that he "want[ed]
out." He explained that Roadway had curtailed any opportunity for him to prepare for the hearing
by threatening to discharge him if he took time off from work on the day preceding scheduled depositions
and on the day preceding the hearing. According to Eash, Tucker initially had instructed him to arrange
to take time off from work on those dates in order to assist Tucker's preparation. After Eash had
requested the time off and after Tucker had engaged in early discussions with Landwehr, Tucker warned
Eash that he could face discharge if he took time off to prepare for the depositions. T. 76-77. The
possibility of reprisal prompted Eash to "want out" of the proceeding. When asked whether
the threat to his employment caused him to make the comment, Eash replied, "Well, sure; I was
scared." T. 77.
9 The ALJ credited Tucker's
testimony in its entirety and rejected Eash's testimony in its entirety. R. D. & O. at 5. Such blanket
credibility determinations are highly questionable. See Dorf v. Bowen, 794 F.2d 896, 901-901
(3d Cir. 1983) (judge's wholesale discounting of testimony, especially in light of other record evidence
which supported it, required reversal); Kent v. Schweiker, 710 F.2d 110, 116 (3d Cir. 1983)
(conclusory wholesale rejection of testimony did not meet substantial evidence test); Cotter v.
Harris, 642 F.2d 700, 706-707 (3d Cir. 1981) (full explanation required of why evidence was
rejected since fact finder "cannot reject evidence for no reason or for the wrong reason").
10 Partial performance could have
included action withheld, i.e., declining to proceed with a disciplinary hearing. Eash asserts,
however, that "[w]hile Respondent's offer included cancellation of a hearing on one of the warning
letters, the Respondent went ahead and held the hearing anyway about one month ago."
Complainant's Brief Opposing Recommended Decision and Order at 6. Roadway did not contest this
statement, and the record otherwise is silent on the subject.