ARB CASE NO. 99-011
ALJ CASE NO. 97-CAA-12
DATE: June 13, 2000
In the Matter of:
MARK DUNCAN,
COMPLAINANT,
v.
SACRAMENTO METROPOLITAN AIR
QUALITY MANAGEMENT DISTRICT,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Mark Duncan, pro se, Shingle Springs, California
For the Respondent: Kenneth Swenson, Esq., Matthew D. Evans, Esq., Duncan, Ball, Evans & Ubaldi, Sacramento,
California
ORDER
Complainant Mark Duncan has filed a "Motion to Accept New Evidence Into
the Record and Motion to Grant a Thirty-Day Extension for the Filing of the Initial Brief." This
motion requested the Administrative Review Board to accept new evidence into the record: 1)
transcripts of the arbitration proceedings which arose from Duncan's discharge from employment by the
respondent Sacramento Metropolitan Air Quality Management District (the District), including the
exhibits presented during those proceedings; 2) a May 13, 1999 complaint of blacklisting against the
District and associated attachments previously filed with the Board; and 3) a bank statement showing
payment of check #2008 from Duncan to the District, covering the cost of his alleged misuse of a District
cellular phone. Duncan subsequently filed a "Motion to Expand the Initial Brief Page Limitation
from Thirty to Fifty Pages."
[Page 2]
In response to Duncan's request to supplement the record, the District filed
Respondent's "Statement of Provisional Non-Opposition to Complainant Duncan's Motion to
Supplement the Record" (Statement of Provisional Non-Opposition). The District stated that it
does not oppose the motion to supplement the record provided the Board also admits into evidence the
Arbitration Opinion and Award which issued as a result of the arbitration proceeding. The District
subsequently filed a "Motion to Reopen the Record to Supplement it with the Arbitration Opinion
and Award Concerning Termination of Complainant Mark Duncan; and Declaration of Kenneth L.
Swenson in Support Thereof" (District's Motion to Reopen the Record).
A. Transcripts of the Arbitration Proceedings and Arbitration
Award.
When considering a motion to reopen the record to admit new evidence, the
Board and its predecessor, the Secretary, ordinarily relies upon the same standard found in the Rules
of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law
Judges, 29 C.F.R. Part 18, which provides:
Once the record is closed, no additional evidence shall be accepted
into the record except upon a showing that new and material evidence
has become available which was not readily available prior to the
closing of the record.
29 C.F.R. §18.54(c). See, e.g., Lassin v. Michigan State University, 93-ERA-31,
Fin. Dec. & Ord. (June 29, 1995). The ALJ initially closed the record in this case on March 26,
1998. See Order to Show Cause (April 13, 1998). However, by order dated May 7, 1998,
the ALJ reopened the record upon the District's motion to allow the District to submit into evidence
a copy of an arbitrator's decision dated March 25, 1998, concerning Duncan's challenge of a five-day
suspension the District had imposed in March 1997. The District also asserts in its Statement of
Provisional Non-Opposition that the ALJ issued an order on July 7, 1999, again reopening the record
to permit Duncan to introduce ALJX9, "'transcript of the May 14, 1998 arbitration proceeding
before arbitrator Geraldine M. Randall.'" Although an examination of the record did not reveal
the ALJ's July 7, 1999 order, ALJX9 is, in fact, in the ALJ record. The ALJ issued his
Recommended Decision and Order on October 16, 1998.
The Arbitration Award the District seeks to introduce into evidence was not
issued until November 23, 1998. Thus, it was not available prior to the closing of the record or the
issuance of the ALJ's decision. The arbitration transcripts and exhibits Duncan seeks to introduce
first became available after the ALJ closed the record, but apparently before the ALJ issued his
decision.1[Page 3]
1 Both the District and Duncan
successfully petitioned the ALJ to reopen the record to include additional evidence after he initially
closed the record. Duncan does not explain why he did not request the ALJ to reopen the record to
accept the transcripts and exhibits so that the ALJ could initially rule upon the request and, if he
granted it, could consider the transcripts and exhibits in rendering his recommended decision and
order. Allowing the ALJ initially to consider this request would certainly be the preferred course of
action.
2 While reaching no conclusions
on the merits of Duncan's blacklisting claim, we note that we previously have found that given the
"invidious and insidious" nature of blacklisting, it may be appropriate to apply the
continuing violation theory in determining the timeliness of a blacklisting claim. See Egenrieder
v. Metropolitan Edison Co., 85-ERA-23, Ord. of Rem., slip op. at 6 (April 20, 1987). We also
note that even if Duncan had not filed a complaint with the OSHA office, his April 1, 1999 letter to
the Secretary of Labor, if timely filed, would be sufficient to constitute a "complaint"
pursuant to section 7622(b)(1) of the Clean Air Act, 42 U.S.C. §7622(b)(1) (1994) and 29
C.F.R. §24.3(d). Accord School District of Allentown v. Marshall, 657 F.2d 16, 18-20
(3d Cir. 1981).
