Complainant worked as a mixer truck driver at Respondent's facility in San Diego, California. Rx 1 at 2. In May 1998, Complainant was suspended after Respondent concluded that he had threatened and harassed another employee. Rx 7 at 3, Appx D. Complainant believed that he had been suspended for reporting safety violations to the California Highway Patrol (CHP), and he filed a complaint with the Occupational Safety and Health Administration (OSHA), alleging that Respondent had violated the STAA. Germann v. CalMat Co. , 1999-STA-00015, slip op. at 1-2 (ALJ Aug. 6, 1999). The case was heard by an administrative law judge, who found that Respondent had violated Section 405 and recommended that an appropriate remedial order be entered. Id. at 56. The case is pending before the Administrative Review Board (ARB).
On November 19, 1998, Complainant was terminated. Rx 1 at 7. According to Respondent, Complainant made threatening remarks to a supervisor and attempted to cause a "work slowdown." Cx B. Complainant denied these allegations; he believed that his termination, like his suspension, resulted from his complaints to the CHP. Rx 1 at 5, 7.
Complainant filed a grievance, alleging that his termination violated the collective bargaining agreement between Respondent and the union. Rx 3 at 2-3. The matter proceeded to voluntary arbitration before a panel, which included an arbitrator selected by Respondent, an arbitrator selected by the union, and a Chairman selected by both Respondent and the union. Rx 3 at 3. Both Respondent and the union, on Complainant's behalf, were represented during the proceedings. Rx 3 at 2. Both parties were given opportunities to call and examine witnesses, present evidence, and submit arguments. Rx 2; Rx 3 at 2. In a two-to-one decision, the panel found that Respondent had not violated the collective bargaining agreement when it terminated Complainant. Rx 3 at 20.
A complaint was also filed with the Regional Director of the National Labor Relations Board (NLRB). Rx 6 at 1. The Regional Director deferred to the findings of the arbitration panel, and the NLRB affirmed on appeal. Rx 6 at 1-2.
In addition, Complainant filed an action for wrongful discharge in the California Superior Court, alleging that his termination resulted from his complaints to the CHP. Rx 1 at 7. Complainant contended that his termination violated the public policies set forth in California Vehicle Code section 34501.2, which limits the driving times of those operating commercial vehicles, and Labor Code sections 1102 and 6310, which prohibit an employer from retaliating against an employee who discloses violations of federal or state safety laws to the government or law enforcement. Rx 1 at 7 (citing Cal. Veh. Code § 34501.2 and Cal. Lab. Code §§ 1102, 6310 (West, WESTLAW through 2002 Sess.)).
A three-week trial was held. Both parties were represented by counsel. Tr at Vols. 1-17. The parties were given opportunities to call and examine witnesses, present evidence, and submit arguments. Tr at Vols. 1-17. The jury returned a verdict in favor of Respondent. According to the special verdict form, nine of the twelve jurors answered "No" to the question: "Did Plaintiff prove, by a preponderance of the evidence, that he was terminated by Defendant because he disclosed information to a law enforcement agency which he had reasonable cause to believe disclosed a violation of a state law or regulation?" Tr at Vol. 17, p. 3310-11; Rx 5 at 2. Complainant's motion for a new trial was denied, and his appeal is pending before the California Court of Appeal, Fourth District, Division One. Tr at Vol. 17, p. 3324.
Complainant's termination is also the subject of the instant STAA complaint. Cx C. After an investigation, OSHA deferred to the outcome of the state court trial. OSHA concluded that the "state court trial concerned the same issues as raised in this STAA complaint." Complainant requested a hearing, which has been continued so that Respondent's motion may be considered.
Respondent contends that the issues presented in the instant case are identical to those litigated at the arbitration, the NLRB proceeding, and the state trial. As Complainant was unsuccessful in those proceedings, Respondent contends that, by operation of the doctrines of res judicata and collateral estoppel, the instant complaint is barred and should be dismissed or suspended.
Complainant argues that neither res judicata nor collateral estoppel applies, so dismissal or suspension of his complaint is inappropriate. Claimant cites Eichman v. Fotomat Corp. , 759 F.2d 1434 (9th Cir. 1985), in support of this contention. Eichman stands for the proposition that a state court judgment cannot constitute res judicata for claim preclusion if the state court lacked jurisdiction over the federal statutory claim. However, the court in Eichman indicated that collateral estoppel could apply in appropriate circumstances:
This is not to say that in all circumstances we will decline to give collateral estoppel effect in a federal antitrust action to specific findings of fact made in a prior state court adjudication. In this case, however, looking to California law, we are not able to apply principles of collateral estoppel. [Eichman's first suit, filed in San Bernardino Superior Court,] ended in a compromise settlement pursuant to section 998 of the California Code of Civil Procedure. Under California law, a judgment obtained pursuant to section 998 cannot be used as a collateral estoppel because the element of litigated issues is absent.
Id. at 1437 (citations omitted).
"Res judicata" or "claim preclusion" refers to "the preclusive effect of a judgment in foreclosing relitigation of claims that were raised or should have been raised in earlier litigation." Frank v. United Airlines, Inc. , 216 F.3d 845, 850 n.4 (9th Cir. 2000), cert. denied , 532 U.S. 914 (2001); United Parcel Service, Inc. v. California Public Utilities Commission , 77 F.3d 1178, 1185 & n.6 (9th Cir. 1996). "Collateral estoppel" or "issue preclusion" refers to "the preclusive effect of a judgment in foreclosing relitigation of issues that have been actually and necessarily decided in earlier litigation." Frank , 216 F.3d at 850 n.4; United Parcel Service , 77 F.3d at 1184-85 & n.6. When an administrative agency acts in a judicial capacity, claim and issue preclusion apply. Paynes v. Gulf States Utilities Company , ARB No. 98-045, ALJ No. 1993-ERA-00047, HTML at 4 (ARB Aug. 31, 1999).
Claim preclusion requires (1) identical claims in the two actions; (2) a final judgment on the merits in the first action; and (3) privity between the parties in the two actions. Frank , 216 F.3d at 850. Because the United States Department of Labor has exclusive jurisdiction over complaints filed under the STAA, claim preclusion can only apply where the first action was also before the United States Department of Labor. See Paynes, supra at 3-4; Kosciuk v. Consumers Power Co. , ALJ No. 1990-ERA-00056, HTML at 2-3 (Sec'y Mar. 31, 1994); see also Rockefeller v. U.S. Department of Energy , ARB No. 00-039, ALJ Nos. 1999-CAA-00021/-00022, HTML at 2-3 (ARB May 30, 2001). Here the three prior proceedings were held before other tribunals, so claim preclusion is inapplicable.
"Under both California and federal law, collateral estoppel applies only where it is established that (1) the issue necessarily decided at the previous proceeding is identical to the one which is sought to be relitigated; (2) the first proceeding ended with a final judgment on the merits; and (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the first proceeding." Hydranautics v. Filmtec Corp. , 204 F.3d 880, 885 (9th Cir. 2000) (citations omitted); Bianchi v. City of San Diego , 214 Cal. App. 3d 563, 262 Cal. Rptr. 566, 567 (Cal. Ct. App. 1989).
The arbitration, the NLRB proceeding, or the state trial may be a "prior proceeding" for the purpose of applying the doctrine of collateral estoppel. See Brock v. Roadway Express, Inc. , 481 U.S. 252, 261 n.2 (1987); Paynes, supra at 3-4; Kosciuk, supra at 3 (all involving arbitrations and state proceedings); Combs v. Mash Transportation Services , ALJ No. 1986-STA-00014, HTML at 1-2 (Sec'y July 24, 1992) (involving NLRB proceedings); see also United States v. Utah Construction & Mining Co. , 384 U.S. 394, 421-22 (1966) (remarking that res judicata effect should be given to arbitrations and administrative proceedings). In the instant STAA complaint, the issue is whether Complainant was terminated for engaging in protected activity, namely, reporting safety violations to law enforcement. See Clean Harbors Environmental Services, Inc. v. Herman , 146 F.3d 12, 21-22 (1st Cir. 1998); Scott v. Roadway Express Inc. , ARB No. 99-013, ALJ No. 1998-STA-00008, slip op. at 6-8 (ARB July 28, 1999), dismissed in part on other grounds sub nom. Roadway Express, Inc. v. Administrative Review Board, U.S. Department of Labor , 6 Fed.Appx. 297 (6th Cir. Mar. 7, 2001).
The findings contained in the arbitration decision cannot support a summary decision on the basis of collateral estoppel, because the issue before the arbitration panel was whether Respondent had violated the collective bargaining agreement when it terminated Complainant. Rx 3 at 14-16. Likewise, the decision of the NLRB is not an appropriate basis for collateral estoppel. The proceedings before the NLRB also concerned whether Respondent had violated the terms of the collective bargaining agreement. Rx 6 at 1.
The state court judgment, however, must be given collateral estoppel effect. The issue adjudicated at the state court trial is identical to the one presented here: whether Respondent terminated Complainant because of his protected activity. Rx 1 at 7; Rx 5 at 2. Moreover, Complainant received a full opportunity to litigate the issues related to his termination, and the lengthy transcript indicates that the state trial was fair and regular. Tr at Vols. 1-17. Both sides were well represented at the three-week trial, numerous exhibits were presented, nearly 40 witnesses testified, and closing arguments were presented. Tr at Vol. 1-17 and Accompanying Exhibits. A jury of twelve of Complainant's peers received comprehensive instructions, considered the evidence, and rendered a special verdict in favor of Respondent. Cx H at 1-24; Rx 5 at 2.
Complainant argues that the state trial did not encompass all of the issues raised in the instant complaint under the STAA. Legally, an action under the STAA may be distinguished from a state action for wrongful termination, but both actions depend on the same factual issue: whether Respondent terminated Complainant in violation of public policy. See Scott, supra at 6-8; Cal. Lab. Code §§ 1102, 6310 (West, WESTLAW through 2002 Sess.). A jury of Complainant's peers specifically found that Respondent did not terminate Complainant in violation of public policy.3 And even though the arbitration decision is not determinative here, it should be noted that the Chairman seriously doubted Complainant's credibility and upheld his termination as entirely justified under the collective bargaining agreement. Rx 3 at 18. After examining Complainant's answer and the other available documents, I find no new issues raised by his instant STAA complaint.
Complainant next argues that procedural infirmities prevented him from receiving a fair trial in the state court. According to Complainant, the state judge excluded two witnesses, whose testimonies would have changed the outcome of the case. The state judge, however, entertained arguments regarding these witnesses on many occasions and explained several times throughout the trial that the testimonies concerned incidents of no relevance to Complainant's case. The state trial was fair and regular, and its outcome comports with the purpose and policy of the STAA.
Document: Germann OrdGrant.wpd Created by: DJARVIS on 07/11/2002 12:25:03 PM At this point, a summary decision in favor of Respondent cannot be issued, as the California Superior Court judgment must be final before it may be given collateral estoppel effect. However, an administrative proceeding may be suspended pending the outcome of another proceeding initiated by the complainant. The other proceeding must have been "fair, regular, and free of procedural infirmities," it must have "dealt adequately with all factual issues," and its outcome must comport with the purpose and policy of the STAA. 29 C.F.R. § 1978.112(c); Roadway Express, Inc. v. Brock , 830 F.2d 179, 182 (11th Cir. 1987); Brame v. Consolidated Freightways , ALJ No. 1990-STA-00020, HTML at 4 n.3 (Sec'y June 17, 1992).
As discussed, the state trial provided Complainant a more than ample opportunity to litigate the reason for his termination. Accordingly, should the California appellate courts uphold the verdict returned in the superior court, Respondent is entitled to judgment of as a matter of law in the STAA complaint, as no material issue of fact will remain for adjudication. See 29 C.F.R. § 18.40; Stauffer v. Wal-Mart Stores, Inc. , ARB No. 99-107, ALJ No. 1999-STA-00021, HTML at 6 (ARB Nov. 30, 1999). If the judgment is reversed, this case will be set for hearing.
ORDER
It is ordered that:
1. Further proceedings in the matter of Germann v. CalMat Co. , 2002-STA-00028, are suspended until such time as the California appellate courts render a decision in Germann v. Vulcan Materials Co. , Appeal No. D039265, California Superior Court No. GIC 738800.
2. Counsel shall inform this Court, within 10 days after the following:
a. The California Court of Appeal or the California Supreme Court issues a decision reversing the judgment of the California Superior Court; or
b. The California Court of Appeal or the California Supreme Court issues a final decision, affirming the judgment of the California Superior Court.
DONALD B. JARVIS
[ENDNOTES]
1
2
3
To establish termination in violation of public policy, it must be established that the termination of plaintiff's employment was in violation of public policy.
The public policy of the State of California is embodied in the California Motor Carrier Safety Act and regulations which implement it and the California Labor Code which prohibits an employer from retaliating against an employee for disclosing information to a government or law enforcement agency, where the employee has a reasonable cause to believe that the information discloses a violation of state or federal statute, or violation or noncompliance with a state or federal regulation.
Rx 4.
