ARB CASE NO. 03-006
ALJ CASE NO. 02-STA-38
DATE: February 27, 2004
In the Matter of:
SELWYN T. LANE,
COMPLAINANT,
v.
ROAD WAY EXPRESS, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant: Paul O. Taylor, Esq., Truckers Justice Center, Eagan, Minnesota
For the Respondent:
Sally J. Scott, Esq., Franczek Sullivan PC, Chicago, Illinois
DECISION AND ORDER OF REMAND
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). On January 20, 2000, the Respondent, Roadway Express, issued a warning letter to the Complainant, Selwyn T. Lane, for delay of freight occurring on January 9 and 10, 2000. Lane filed a complaint with the United States Department of Labor's Occupational Safety and Health Administration (OSHA), alleging "that he received discipline and lost wages as a result of his refusal to drive in the hazardous conditions on January 9, 2000."1 On or about May 23, 2000, Roadway withdrew the letter from Lane's disciplinary file.
1 Discriminatory Case Activity Work Sheet, Allegation Summary, May 12, 2000.
2 Had Roadway submitted evidence outside the pleadings in support of its Motion to Dismiss, the Board would have viewed the motion as a motion for summary decision under 29 C.F.R. §18.40. See Erickson v. United States Envt'l Prot. Agency, ARB No. 99-095, ALJ No. 1999-CAA-2 (ARB July 31, 2001); High v. Lockheed Martin Energy Sys., Inc., ARB No. 98-075, ALJ No. 96-CAA-8, slip op. at 3-4 (ARB Mar. 13, 2001).
3 Discriminatory Case Activity Work Sheet, Allegation Summary, May 12, 2000.
4 Lane Affidavit, ¶ 7 ("Roadway Express, Inc. has not made me whole for the illegal discipline. Under Article 51 of the National Master Freight Agreement, I was entitled to 8 hours pay for delay due to bad weather, in addition to my regular per mile pay for completing the trip to Wausau, WI. Roadway Express, Inc. paid me my regular per mile pay for the run from Oak Creek, WI to Wausau, WI on January 9-10, 2000. Roadway Express, Inc. did not pay me the 8 hours of pay that I am entitled to for waiting in Westfield, WI.")
5 Lane argues that he is entitled to attorney's fees for pursuing his claims. However, Lane is only entitled to attorney's fees if an order has been issued under 49 U.S.C.A. § 31105(3)(B), following a decision that the STAA has been violated. Since no such decision and order have been issued, Lane is not entitled to attorney's fees at this time.