Harrison v. Roadway Express, Inc., 1999-STA-37 (ALJ Dec. 16, 1999)

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Harrison v. Roadway Express, Inc., 1999-STA-37 (ALJ Dec. 16, 1999)

U.S. Department of Labor Office of Administrative Law Judges
2600 Mt. Ephraim Avenue
Camden, NJ 08104
(856) 757-5312
856-757-5403 (FAX)
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DATE ISSUED: December 16, 1999
CASE NO.: 1999-STA-00037

In the Matter of

MICHAEL HARRISON
Complainant,

ROADWAY EXPRESS, INC.
Respondent.

PRELIMINARY DETERMINATION
THAT THE COMPLAINT WAS TIMELY

and
BRIEFING SCHEDULE

At the hearing on August 31 and September 1, 1999, a question arose regarding whether a complaint was filed within 180 days of the notice of employment termination given by Respondent to Complainant on July 2, 1998, in compliance with the 180-day statute of limitations in the Surface Transportation Assistance Act of 1982 ("STAA"), 49 U.S.C. § 31105. By Order dated September 9, 1999, I bifurcated this case into two segments: (1) whether a timely complaint was filed and, if so, (2) whether Respondent violated the STAA, and the appropriate remedy for such violation. I ordered the parties to file briefs addressing the issue of whether a timely complaint was filed. Respondent and Complainant filed briefs on December 8 and 10, 1999, respectively.

The pertinent history is as follows. On June 19, 1998, Respondent issued a letter to Complainant suspending him from work for ten days. (CX 26)¹ On June 30, 1998, Complainant filed a grievance with the collective bargaining agent representing Respondent's employees, Teamsters Local Union No. 375 ("Local 375"). (CX 26) The grievance complained about the suspension, stating that it was in retaliation for Complainant's reporting safety defects at Respondent's yard to the Occupational Safety and Health Administration ("OSHA"). On July 2, 1998, Respondent issued a letter terminating Complainant's employment. (CX 27) Subsequently, Complainant filed a grievance regarding his termination. (Respondent's August 10, 1999 Motion for Summary Judgment, Exhibit "N") Complainant

[Page 2]

was permitted to remain working pending a final determination of his discharge, apparently pursuant to the grievance-arbitration provisions in the collective bargaining agreement between Respondent and Local 375. On July 27, 1998, Complain-ant visited the OSHA office in Bowmansville, New York and orally complained to an OSHA official about his suspension and termination. The OSHA official told Complainant that she would not accept his complaint prior to the exhaustion of the grievance-arbitration procedures. (T 293-95) On January 25, 1999, Complainant's discharge by Respondent was upheld by the Eastern Region Joint Area Committee ("Committee"), the last step of the grievance- arbitration procedure in Com-plainant's grievance. (CX 27)

On February 1, 1999, Complainant notified OSHA that his termination had been upheld by the Committee. (T 295) The complaint filed on February 1, 1999 was untimely, as it was filed more than 180 days after Respondent's suspension and termination of Complainant on June 19 and July 2, 1998, respectively.²

Complainant argues that his oral complaint to OSHA on July 27, 1998 constitutes a complaint under the STAA. Respondent argues that the July 27, 1998 meeting with OSHA does not constitute the filing of a complaint.

Respondent makes several arguments in support of its contention that Complainant's meeting with OSHA on July 27, 1998 fails to satisfy the requirements of a complaint. Respondent's first contention is that OSHA failed to follow the procedures set forth in its Investigator's Manual ("OSHA Manual"), section 11(c)/405, described in the November 4, 1999 deposition of David Boyce, OSHA Area Director of the Buffalo, New York-area offices. The specific procedural defects relied on by Respondent are the failure of the OSHA official to whom Complainant spoke to fill out a Form 87 or send any other notification to the OSHA Discrimination Office in New York City. (Respondent's brief, p. 7) However, the OSHA Manual is not a legally binding statute or regulation. And neither the STAA nor its enabling regulations mandate any specific procedure, form or content for the filing of a complaint, other than that the complaint "should be filed with the OSHA Area Director ... in the geographical area where the employee resides or was employed..." and must be filed within 180 days after the alleged violation occurs. 29 C.F.R. §§ 1978.102(c) and (d). Indeed, the pertinent regulation, 29 C.F.R. § 1978.102, broadly states:

(b) Nature of Filing. No particular form of complaint is required.

There is not even a requirement that a complaint be in writing. Reemsnyder v. Mayflower Transit, Inc., 93-STA-4 (Sec'y Feb. 25, 1994), citing Greathouse v. Greyhound Lines, Inc., 92-STA-0018 (Sec'y Aug. 31, 1992). Further, although the OSHA Manual's procedures were not followed on July 27, 1998, the OSHA official with whom Complainant met on that date made a "log entry" describing Complainant's visit on an OSHA "diary sheet." (Boyce deposition, pp. 14-15) The OSHA diary sheet contains the following handwritten notations for July 27, 1998:

[Page 3]

Visit to office by complainant alleging further discrimination in that he has 2 notices of firing.³ He also claims employer never posted. OSHA citation discussed w/AAD Pietroluongo. Complain-ant stated repairs had been taken care of.

In a memorandum dated September 1, 1999 by which a copy of the above diary sheet was provided to Complainant during the course of the hearing on that date, Area Director Boyce stated:

The attached is a copy of a diary sheet from case file Roadway Express Inc.. Inspection report #301002357.

(CX 35)

Based on the foregoing, I find that the fact that OSHA failed to follow the procedures in the OSHA Manual does not invalidate the complaint Complainant made to OSHA on July 27, 1998.

Respondent also argues that the log entry does not have the necessary characteristics of a complaint, in that it fails to identify the parties and dates of alleged discrimination, nor refers to the STAA. As noted, the relevant regulation, 29 C.F.R. § 1978.102(b), states that no particular form of complaint is required under the STAA. In Richter v. Baldwin Associates, 84-ERA-9 (Sec'y Mar. 12, 1986), the Secretary was dealing with a regulation, 29 C.F.R. § 24.3(b) (1985), that requires a written complaint and suggests the need for much more specificity than is required by the STAA regulation. Despite this, the Secretary stated:

This complaint, although "equivalent to the filing of a formal legal complaint," is not a formal pleading setting forth legal causes of action [but] is an informal complaint filed ... for the purpose of initiating an investigation on behalf of the Secretary of Labor...." (Citation omitted.)

Richter, supra, slip op. at 6. Richter held that the fact that some complainants' complaints omitted allegations of protected activity was not fatal to the allegations.

In the instant case, Area Director Boyce testified, "The diary sheet relates to a visit to this office by the Complainant [and] refers back to an original complaint that we received in the office and a further discussion about that."⁴ (Boyce deposition, p. 8) Although the notations in the diary sheet do not state the names of Complainant or Respondent, or the dates of the alleged discrimina-tory acts, the essential nature of the complaint and the identity of the parties were in the OSHA records: Boyce stated that the diary sheet is contained in the OSHA case file on Respondent, which he identified as Inspection report #301002357." (See p. 3, above.) It appears that this file was opened when Complainant went to OSHA with his safety concerns.

[Page 4]

Respondent's final argument is that the log entry did not put it on notice that allegations of discrimination were made. In my view, however, the important question is whether Respondent had adequate notice to prepare for the formal hearing that commenced before me on August 31, 1999. There is no question that Respondent had sufficient notice prior to the hearing. In the OSHA determination letter dated May 12, 1999, OSHA advised Respondent's counsel that, after investiga-tion, OSHA found that Complainant's discrimination complaint against Respondent was without merit. It is obvious that sometime during the OSHA investigation (which commenced after February 1, 1999), and prior to May 12, 1999, OSHA informed Respondent of Complainant's discrimination complaint. Consequently, Respondent had specific notice of the complaint at least three and a half months, and possibly up to seven months, prior to the formal hearing. I therefore find that this contention of Respondent is without merit.

In sum, Complainant did everything required to file a complaint. A broader view of the circumstances involved here reveals that the fault, if any, lies with OSHA's failure to commence an investigation until more than six months after Complainant came to the OSHA office on July 27, 1998 to complain about being discharged. However, this delay does not diminish the validity of the complaint filed on July 27, 1998.⁵

Based on the foregoing facts, I find that the complaint is valid and was timely filed on July 27, 1998.⁶

Accordingly, it is ORDERED that

1. The evidentiary record is closed.

2. The parties shall file briefs on the merits of the case and the appropriate remedy, if any, no later than February 14, 2000.

3. Reply briefs shall not be permitted in the absence of my finding of good cause.

Robert D. Kaplan
Administrative Law Judge

Dated: December 16, 1999
Camden, New Jersey

[ENDNOTES]

¹The following abbreviations are used herein: "CX" denotes Claimant's Exhibit; "T" denotes the transcript of the hearing on August 31 and September 1, 1999.

²Complainant does not argue that the February 1, 1999 complaint was timely. The sole basis for such an argument is that the 180-day statute was tolled during the pendency of his grievances. However, the filing of a grievance does not toll the statute of limitations. Rezas v. Roadway Express, Inc., 85-STA-4 (Sec'y June 5, 1985); Prybys v. Seminole Tribe of Florida, 95-CAA-15, slip op. at 4-5 (ARB Nov. 27, 1996). Both cases rely on International Union of Electrical, Radio & Machine Workers v. Robbins & Myers, 429 U.S. 29 (1976).

³The reference to "further discrimination" is ambiguous. Although this implies that Com-plainant had previously complained to OSHA about discrimination, the record contains no evidence of such a complaint. (Also see n. 4, below) It appears that the reference to "2 notices of firing" includes Complainant's second discharge, on July 14, 1998, which is only briefly mentioned in the record. (T 294)

⁴The "original complaint"apparently refers to Complainant's initial communication to OSHA about safety concerns relating to Respondent's yard.

⁵ In a letter to me dated September 8, 1999, Respondent's counsel stated that he had spoken with "the OSHA 11(c) investigator who investigated the Harrison complaint" who told counsel that Complainant "had been informed, incorrectly, [by OSHA] that the complaint would be accepted when his discharge became final" (i.e., after the grievance-arbitration procedure had run its course).

⁶This determination is interlocutory and is not a final order that can be appealed to the Administrative Review Board. Plumley v. Federal Bureau of Prisons, 86-CAA-6 (Sec'y Apr. 29, 1987). In the event that Respondent nevertheless files an appeal, I shall not stay the proceeding before me.