DISMISSAL; EMPLOYER'S FAILURE TO PARTICIPATE IN HEARING PROCESS RESULTS IN THE OSHA FINDINGS BEING ADOPTED AS THE FINAL ORDER OF THE SECRETARY WHERE THE RESPONDENT WAS THE PARTY THAT RAISED OBJECTIONS TO THE OSHA FINDINGS
In Ass't Sec'y & Marziano v. Kids Bus Service, Inc., ARB No. 06-068, ALJ No. 2005-STA-64 (ARB Dec. 29, 2006), the Respondent objected to OSHA's findings and requested a hearing before an ALJ. During the course of the proceedings before the ALJ, counsel for the Respondent informed the ALJ that the Respondent was out of business, had no assets, would not appear at the rescheduled hearing, and "fully underst[ood] the potential impact of a default." Upon motion by the Solicitor of Labor's regional office, the ALJ issued an order to show cause why the Respondent's objections to OSHA's findings and order should not be "stricken" and the findings and order not be adopted by the ALJ as the final order of the Secretary. See 29 C.F.R. § 18.39(b). The Respondent did not respond, and the ALJ granted the motion. See 18.5(b). Upon automatic review, the ARB affirmed.
PRETEXT; USE OF PROFANITY AND ATTEMPT TO EXTORT MONEY FROM CLIENT; COMPLAINANT'S FAILURE TO SHOW THAT HIS VERSION OF EVENTS WERE CREDIBLE
In Crowell v. Americoach Tours, ARB No. 04-173, ALJ No. 2002-STA-33 (ARB Jan. 16, 2007) (reissue of Dec. 29, 2006 decision), the Complainant was a co-driver on a educational bus tour tracking an underground railroad route. During the trip some teenage students because disorderly and disruptive, and the Complainant called in to the Respondent to state that he may not drive because it had become unsafe. Later, however, when asked if he needed a relief driver he indicated that everything had been worked out. After the tour completed, the client's program director called the Respondent to complain that the Complainant had used profanity in front of the teenagers and had tried to extort money to continue driving. The program director followed up the conversation with a written statement. The co-driver on the trip wrote to the Respondent that the Complainant had threatened not to drive in Toronto and had asked the program director, "what's in it for me," if he continued. The Respondent thereafter fired the Complainant. The ARB affirmed the ALJ's finding that the Complainant engaged in protected activity when he reported safety concerns regarding his hours of service and the disruptive behavior of his passengers, but also affirmed the ALJ's finding that the Complainant failed to show that the Respondent's stated ground for firing him (the profanity and the attempted extortion) were pretext in view the program director's and co-driver's statements.
Wentworth v. We Care Transportation, LLC, ARB Nos. 06-080, 06-158, ALJ No. 2005-STA-13 (ARB Jan. 16, 2007)
