The Occupational Safety and Health Administration investigated and found no violation by UPS. Martin objected, and requested a hearing before an administrative law judge ("ALJ") of the United States Department of Labor. The ALJ issued a Recommended Decision and Order, in which she found that Martin "was disciplined and discharged for his consistent failure to follow instructions on how he should take and record his required meal period, and for acts of dishonesty," not in retaliation for his STAA complaints.
Martin appealed to the ARB, pursuant to 49 U.S.C. § 31105(b) and 29 C.F.R.§ 1978.109. The ARB concurred with the findings of the ALJ and denied Martin's complaint. It found that the ALJ's finding that "UPS did not discriminate against Martin in violation of the STAA" was supported by substantial evidence.
Martin now petitions this Court for review of the ARB's final decision and order, pursuant to 49 U.S.C. § 31105(d) and 29 C.F.R. § 1978.110.
II.
We review the ARB's decision under the STAA to "determine whether it was supported by substantial evidence, which is ‘such relevant evidence as a reasonable mind might accept as adequate
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to support a conclusion.'" Moon v. Transport Drivers, Inc., 836 F.2d 226, 229 (6th Cir. 1987) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
Martin does not argue that the ARB's decision was unsupported by substantial evidence. Instead, he argues that the ARB failed to address his STAA claims with respect to the December 13, 2001 warning letter and the January 9, 2002 intent-to-discharge letter. He further argues that the ARB should not have reached his claim regarding the January 28, 2002 discharge because "it was not properly before the ALJ or the [ARB]."
Martin asserts that the ARB "sidestepped" his claims regarding the first two letters by "uph[olding] the second discharge for alleged dishonesty." Pet'r Br. at 22-23. Martin argues that "this case should be remanded to the ARB with instructions to determine whether UPS violated the STAA by issuing the December 13, 2001 and January 9, 2002 disciplinary notices[.]" Id. at 26. We disagree. The ARB unmistakably considered and rejected Martin's STAA claims with respect to the December 13 and January 9 letters. It wrote:
We reject Martin's contention that ‘[a]ssuming arguendo [he] was properly discharged for dishonesty, he is still entitled to relief under the STAA for the disciplinary letters issued on December 13, 2001 and January 9, 2002." The December 13, 2001 Warning Notice addresses Martin's "continuing failure to follow instructions regarding the taking of the contractual meal period." The January 9, 2002 Intent to Discharge Notice points to his "failure to take [his] meal periods as instructed" and "additional violations of the meal policy with the most recent occurrences being December 28, 2001 and January 4, 2002." Again, Martin's contention that he was sick on certain dates does not explain his failure to follow UPS's policy regarding the recording of meal periods.
J.A. 11 (emphasis added).
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Martin does not argue that this finding was unsupported by substantial evidence. He has therefore waived that argument. Bickel v. Korean Air Lines Co., 96 F.3d 151, 153 (6th Cir. 1996). In any case, the ARB's findings were supported by substantial evidence, including Martin's undisputed and repeated disciplinary violations.
Martin's second argument—that the ARB erred in addressing his January 28 discharge—is also meritless. Martin argues that this discharge was "not properly before the ALJ or the [ARB]" because his STAA "complaint did not allege that UPS' attempt to discharge him on January 28, 2002 was motivated by protected activities." Pet'r Br. at 12, 18. Martin asserts that "[u]nder the Steelworkers trilogy of Supreme Court decisions, the [ARB] lacked jurisdiction to decide the merits of the January 28, 2002, discharge." Pet'r Br. at 11 (footnote omitted) (citing United Steelworkers v. American Mfg., 363 U.S. 566 (1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960)).
Those cases are inapposite here. Each addressed the authority of a court to interpret provisions of a collective bargaining agreement, where the parties had agreed to submit those issues to an arbitrator. Martin's claims did not involve interpretation of the CBA; rather, they were STAA claims, over which the ARB had jurisdiction under 49 U.S.C. § 31105(b). Martin concedes that the ARB had authority to address his second discharge. See Pet'r Br. at 18 ("Martin does not dispute that the ALJ and the [ARB] could determine if the January 28, 2002 discharge violated the STAA"). Indeed, though he now claims to the contrary, Martin himself placed that issue before the ARB. He argued there that "the articulated reason for discharging [him] on January 28, 2002 [was] a pretext for discriminati[ng]" against him for his STAA complaints. J.A. 740. Having presented this
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challenge to the ARB, Martin cannot now complain that the ARB addressed it. As it did with respect to Martin's December 13 and January 9 disciplinary notices, the ARB considered and rejected his January 28 STAA claim. That finding too was supported by substantial evidence, including Martin's undisputed acts of falsification of his timecards on January 16, 22, and 25, 2002.
III.
For these reasons, we affirm the decision of the ARB.
[ENDNOTES]
* The Honorable James G. Carr, Chief Judge of the United States District Court for the Northern District of Ohio, sitting by designation.
1 UPS did not issue this letter. Instead, it issued a warning letter on December 13, 2001, as discussed below.
2 49 U.S.C. § 31105(a)(1)(B) provides that an employer "may not discharge an employee, or discipline or discriminate against an employee . . . because . . . the employee refuses to operate a vehicle because . . . the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety, health, or security[,]" or "the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle's hazardous safety or security condition[.]"