Here, it is determined that amending the complaint filed before OSHA by adding BancGroup, the parent company of Complainant's employer, as a respondent comports with the purpose of Rule 15(c) and the purpose of the Act. Complainant has alleged that BancGroup was responsible for his employment at Colonial and had responsibility for the termination of his employment at Colonial. Specifically, that BancGroup appointed Complainant to the position of Advisory Board Member for Colonial and that the BancGroup CEO approved of the proposal of the Colonial CEO to terminate Complainant. As Complainant points out the Act covers an employee of a company as well as an employee whose employment could be affected by a company. See 29 C.F.R. § 1980.101
[Page 4]
Also, it is undisputed that a shared management and function existed between the parent and the subsidiary. BancGroup and Colonial had the same chairman of the Board, CEO and president in 2002. The principal activity of BancGroup is to supervise and coordinate the business of its subsidiaries and to provide them with capital and services. BancGroup derives substantially all of its income from dividends received from Colonial. Complainant's service to the Colonial Bank Bay Area Advisory Board was paid, in part, with stock in BancGroup. The address of both BancGroup and Colonial is One Commerce Street, Montgomery, Alabama, and Colonial and BancGroup are represented by the same law firm.
Granting Complainant's motion to amend his complaint presents him with the opportunity to establish whether he was discriminated against with respect to his employment at Colonial and/or whether his employment at Colonial was affected by BancGroup contrary to § 806 of the Sarbanes-Oxley Act.
ORDER
In consideration of the aforesaid, IT IS HEREBY ORDERED THAT:
1) Complainant's Motion For Leave To Amend Initial Complaint is granted;
2) The complaint is amended as set forth in Exhibit "A" of Complainant's motion and relates back to July 11, 2003.
Thomas M. Burke
Associate Chief Administrative Law Judge
[ENDNOTES]
1 The caption on prior Orders issued by the undersigned administrative law judge incorrectly identified the Respondent as Colonial Bancgroup.
2 Complainant's motion was filed on July 16, 2004.
3 When the Regional Administrator issued its Findings and Preliminary Order it treated BancGroup as a named Respondent.
4 Rule 15(c) provides that [w]henever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.
5 Respondent's Opposition To Complainant's Motion To Amend, p. 8, 9.
6 Respondent's Opposition To Complainant's Motion To Amend, p. 8.
7Wilson v. Bolin, 91-STA-4 (Sec'y Dec. 30, 1991) p. 3.