Conclusion
James E. Dickey's claim (ARB No. 06-151) is DENIED because West Side did not terminate him because he filed a complaint about truck # 26080 emitting fumes but because he was medically unfit to drive.
As for Lori J. Dickey's claim (ARB No. 06-150), we conclude that West Side violated the STAA because it terminated her when she refused to drive truck # 25093 out of a reasonable apprehension that she would be injured or her health impaired. Therefore, we AFFIRM the ALJ's order that West Side violated the STAA, that the company expunge Mrs. Dickey's records, and that West Side pay, with interest, the $569.00 that it withheld. But we REMAND on the issues of reinstatement and back pay as discussed above.
SO ORDERED.
OLIVER M. TRANSUE
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
[ENDNOTES]
1 49 U.S.C.A. § 31105 (West 2008). Regulations that implement the STAA are found at 29 C.F.R. Part 1978 (2007). Congress has amended the STAA since the Dickeys filed their complaints. See Implementing Recommendations of the 9/11 Commission Act of 2007, P.L. 110-53, 121 Stat. 266 (Aug. 3, 2007). It is not necessary for us to determine whether the amendments are applicable to this case because even if they were, they would not affect our decision since they are not applicable to the issues presented for our review.
2 James E. Dickey v. West Side Transp., Inc., 2006-STA-026 (ALJ Sept. 15, 2006); Lori J. Dickey v. West Side Transp., Inc., 2006-STA-027 (ALJ Sept. 15, 2006).
3 "The [ALJ's] decision shall be forwarded immediately, together with the record, to the Secretary for review by the Secretary or his or her designee." 29 C.F.R. § 1978.109(a). The Secretary of Labor has delegated to the Administrative Review Board the authority to issue final agency decisions under the STAA and its implementing regulations. Secretary's Order 1-2002 (Delegation of Authority and Responsibility to the Administrative Review Board), 67 Fed. Reg. 64,272 (Oct. 17, 2002); 29 C.F.R. Part § 1978.
4 29 C.F.R. § 1978.109(c)(3). The Board reviews questions of law de novo. See Yellow Freight Sys., Inc. v. Reich, 8 F.3d 980, 986 (4th Cir. 1993).
5 In view of the substantial identity of the legal issues and the commonality of much of the evidence, and in the interest of judicial and administrative economy, we have consolidated these cases. See Harvey v. Home Depot U.S.A., Inc., ARB Nos. 04-114, 04-115, ALJ Nos. 2004-SOX-020, 2004-SOX-036, slip op. at 6 (ARB June 2, 2006).
6 49 U.S.C.A. § 31105(a).
7 See West v. Kasbar, Inc. /Mail Contractors of Am., ARB No. 04-155, ALJ No. 2004-STA-034, slip op. at 3-4 (ARB Nov. 30, 2005).
8 James E. Dickey v. West Side Transp., Inc., slip op. at 2-4.
9 See 49 U.S.C.A. § 31105(a)(1)(A).
10 Dutkiewicz v. Clean Harbors Envtl. Servs., Inc., ARB No. 97-090, ALJ No. 1995-STA-034, slip op. at 3-4 (ARB Aug. 8, 1997).
11 Bethea v. Wallace Trucking Co., ARB No. 07-057, ALJ No. 2006-STA-023, slip op. at 8 (ARB Dec. 31, 2007).
12 See 49 C.F.R. § 392.66.
13 R. D. & O. at 5.
14 Lori J. Dickey v. West Side Transp., Inc., slip op. at 2-5.
15 49 U.S.C.A. § 31105(a)(1)(B)(ii).
16 49 U.S.C.A. § 31105(a)(2).
17 Id.
18 Calhoun v. UPS, ARB No. 04-108, ALJ No. 2002-STA-031, slip op. at 24-25 (ARB Sept. 14, 2007).
19 R. D. & O. at 8.
20 Respondent's Brief at 18-20.
21 Respondent's Exhibit H, at 33.
22 Transcript 163.
23 Complainant's Exhibit 3, p. 4.
24 49 U.S.C.A § 31105(b)(3)(A).
25 R. D. & O. at 11.
26 Dale v. Step 1 Stairworks, Inc., ARB No. 04-003, ALJ No. 2002-STA-030, slip op. at 4-5 (ARB Mar. 31, 2005).
27 1993-STA-031, slip op. at 4-5 (Sec'y Oct. 31, 1994).
28 Cook v. Guardian Lubricants, Inc., ARB No. 97-055, ALJ No. 1995-STA-043, slip op. at 3 (ARB May 30, 1997). See also Heinrich Motors, Inc. v. NLRB, 403 F.2d 145, 150 (2d Cir. 1968) (remarks indicating a disinterest in reinstatement are "of little value" when made before a company has offered reinstatement).
29 See Dale, slip op. at 6; Michaud v. BSP Transp., Inc., ARB No. 97-113, ALJ No.1995-STA-029, slip op. at 5-6 n.3 (ARB Oct. 9, 1997).