1 On April 17, 1996, a
Secretary's Order was signed delegating jurisdiction to issue final agency decisions under the
statute and regulations involved in this case to the newly created Administrative Review Board.
61 Fed. Reg. 19978 (May 3, 1996). Secretary's Order 2-96 contains a comprehensive list of the
statutes, executive order, and regulations under which the Administrative Review Board now
issues final agency decisions. Final procedural revisions to the regulations implementing this
reorganization were also promulgated on that date. 61 Fed. Reg. 19982.
2 This includes the
full briefs of the parties to the Board. We grant their motions to exceed the page limits of the
Nov. 1, 1995 briefing order because of the complexities of the case.
We have some options. We should all work together,
so as to help the company profit so as to help us to profit- how about a % of the
profit for us?
Our basic option is - we should unionize! I
recommend The Teamsters Union - Local 355
(Salisbury Office).
I hope that this is not taken as an insult. But,
I believe that we, as employees, should be able to
enjoy our job and to benefit by having decent trucks,
health benefits and a good wage. Contact me and if
you want a change!
JX 3.
4 The ALJ
mentioned but did not address this assertion of a statutorily protected internal complaint to
Fluharty (but not Hobbs) as a basis of his discharge. R.D. and O. at 2. The ALJ focused on
Immanuel's distribution of the leaflets. R.D. and O. at 2, 4, 7-10. Immanuel requests that we
supplement the ALJ's findings on protected activity by holding that Immanuel reported his
concerns about acid and cement residue from truck washings and oil leaks and spills to Fluharty
and Hobbs and that these complaints were the basis of his discharge, even if the intention to fire
him was made prior to his distribution of the leaflets at the company picnic. See
Complainant's initial brief to the Board at 3, 16, 21-23, 32-33; Complainant's reply brief to the
Board at 9, n.6. Contrary to Respondent's answering brief in opposition to Complainant's appeal
at 24-25, we hold that Immanuel raised this argument before the ALJ with respect to Fluharty and
Hobbs. Complainant's post-hearing brief at 4, 25-26, referring to Fluharty, and T. 78,
concerning Hobbs. SeeExeter Bank Corporation, Inc. v. Kemper Securities
Group, Inc., 58 F.3d 1306, 1318 (8th Cir. 1995); Rose v. Dole, 945 F.2d 1331,
1335-36 (6th Cir. 1991) (argument waived on appeal if not raised below). Although reference to
Hobbs is limited to the transcript, its omission from the brief to the ALJ does not amount to a
waiver of Immanuel's argument as applied to Hobbs. SeeRose v. Dole,
945 F.2d at 1334 ("[i]t appears the ALJ did hear testimony on the requirement . . . . Thus,
even though this argument was not forcefully raised below, we think it was sufficiently raised to
preserve it for review."). Accordingly, we shall address these incidents involving Fluharty
and Hobbs.
5 Respondent's
answering brief in opposition to complainant's appeal at 7 states that Immanuel offered no proof
that the letter was actually mailed or received. However, he testified that he had mailed the letter,
T. 109, 149-50, and that DNREC did not respond. Such an explanation is persuasive when
considering that it is a reasonable presumption that mail may occasionally be lost or misdelivered,
distributed to the wrong office or section of a governmental agency, lost within the agency, or
otherwise misplaced, forgotten or unprocessed. See 29 C.F.R. § 18.301
(presumptions in hearings before the Office of Administrative Law Judges, U.S. Dept. of Labor);
U.S. v. Perry, 496 F.2d 429, 430 (10th Cir. 1974); U.S. v. Seligson, 377
F.Supp. 638, 641 n.6 (S.D.N.Y. 1974). Accordingly, the ALJ was correct in considering whether
this document constituted a complaint under the WPCA.
6 Immanuel's
NLRB complaint, R. D. and O. at 4, was not an issue before the ALJ. See
complainant's post-hearing brief at 21-22.
7 The July 22
memorandum from Francis A. DiMondi, Jr., Wyoming's vice-president (from minutes routinely
prepared by William DiMondi), was addressed to those listed in attendance at the 6:00 p.m.
meeting the previous day, including Frank Fluharty, Larry Hobbs and William DiMondi. RX 18
at 1. Complainant's initial brief to the Board at 28-29 suggests that this document may have been
altered or fabricated because the statement, "he will be terminating Henry Immanuel's
employment withing the next week or two due to customer complaints," contains only the
word "employment" on the last line of p. 2 with the remainder of the sentence
appearing on p. 3. The document is prepared with full justification, like the format of this page,
so the fact that only one word appears on the last line of page 2 does raise some suspicion.
However, raising a suspicion is a far cry from carrying a burden of proof by a preponderance of
the evidence. The original document was not offered into evidence. Moreover, Immanuel's
counsel did not object to the admittance of the copy presented. See T. 356-58, 473-75,
576-78. Accordingly, this matter is waived on appeal to the Board. See n.4 and cases
cited. Although Hobbs, according to Immanuel's testimony, T. 535-36, told Immanuel that he
was not at the meeting and did not recall receiving a copy of this memorandum, William DiMondi
testified emphatically that Hobbs attended the meeting, T. 475. In any event, Hobbs' attendance
is irrelevant to the substance of the meeting minutes. These minutes were maintained in the
regular course of business, and Wyoming introduced similar minutes involving adverse personnel
actions immediately preceding its decision to fire Immanuel. See RX 20, Jun. 18,
1993, at 1 (terminations of Bucky Shelton and Preston Northam).
8 The record does
not contain any information regarding the date on which Immanuel's replacement commenced
work. Since Immanuel was kept on, despite his perceived inadequacies as an employee, because
of Wyoming's busy schedule, we would expect that his replacement would have begun working
very soon after Immanuel's termination became effective. However, since that information is not
contained in the record, we cannot draw an inference one way (that the replacement started right
after Immanuel's termination, which supports Wyoming's claim) or the other (that a gap occurred
between the effective date of Immanuel's termination and the start date of his replacement such
that doubt is cast upon Wyoming's stated reason for keeping Immanuel on for two weeks after the
decision to discharge him was made).
9 DiMondi testified
that Immanuel told him at the picnic, "Now that I have distributed this leaflet, you cannot
fire me." T. 382.
10 We do not
conclude that Immanuel's insistence on resting when he was "fried" was shown on this
record to be an appropriate basis for Wyoming's termination decision. The Surface Transportation
Assistance Act, 49 U.S.C.A. § 31105 (1994), protects covered employees who refuse to
drive when fatigued. Immanuel has made no claim under this statute, but public policy
considerations preclude us from using this potentially unlawful basis for Wyoming's termination
decision as support for our holding (although we do not decide whether that statute was actually
violated in this case).