ARB CASE NO. 99-109
ALJ CASE NO. 99-CAA-11
DATE: February 8, 2000
In the Matter of:
MICHAEL B. GARCIA,
COMPLAINANT,
v.
WANTZ EQUIPMENT,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances: For the Complainant:
Michael B. Garcia, Pro se, Sacramento, California
ORDER ACCEPTING PETITION FOR REVIEW
AND ESTABLISHING BRIEFING SCHEDULE
The Administrative Law Judge (ALJ) issued his Recommended Decision
and Order (R. D. & O.) in this case arising under the employee protection provisions of the Clean
Air Act, 42 U.S.C. §7622 (1994) on May 17, 1999. Department of Labor regulations
implementing the whistleblower provisions of the Clean Air Act provide that any party seeking
review of a R. D. & O. must file a petition for review with the Administrative Review Board
(ARB). 29 C.F.R. §24.8(a)(1998). The regulations provide further that "[t]o be effective,
such a petition must be received within ten business days of the date of the [R. D. & O.] . . .
." Id.
The tenth business day after May 17, 1999 (the date of the R. D. & O.) was
June 1, 1999. The complainant, Michael Garcia, received the ALJ's R. D. & O. on May 23, 1999.
His handwritten Petition for Review is dated May 28, 1999, and the ARB received it on June 10,
1999.
[Page 2]
On July 12, 1999, Garcia requested an "extension" of time for
filing the Petition for Review in a handwritten letter sent to the ARB by facsimile. He states that
he was unable to file the Petition for Review within the ten business days provided in 29 C.F.R.
§29.8(a) because he suffers from a 40% permanent disability which makes him housebound
and unable to get to the Post Office. In addition, he claims he did not have sufficient money to
send the Petition for Review by facsimile or ship it by the United Parcel Service.
The Supreme Court has recognized the general principle that
"[i]t is always within the discretion of a court or an
administrative agency to relax or modify its procedural rules
adopted for the orderly transaction of business before it when in a
given case the ends of justice require it. The action of either in such
a case is not reviewable except upon a showing of substantial
prejudice to the complaining party." NLRB v. Monsanto
Chemical Co., 205 F.2d 763, 764 [8th Cir.1953].
American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 539 (1970). In
the principal authority upon which the Court relies, NLRB v. Monsanto Chemical Co., the
facts are similar to those in this case. A discharged employee filed an application for review of
an order of the National Labor Relations Board's Regional Director six days after the time fixed
by the NLRB's rules for filing an application for review. Noting that there was no proof or claim
of prejudice to opposing parties, the Eighth Circuit rejected the argument that the NLRB had no
authority to relax a time provision of its procedural rules. 205 F.2d at 764. In fact, the court
stated that the contention that the NLRB was powerless to relax its rules "is not worthy of
serious consideration." Id.
1 In Gutierrez and other cases, the
Board has said it is guided by the principles of equitable tolling articulated in cases such as School
Dist. of the City of Allentown v. Marshall, 657 F.2d 16 (3d Cir.1981). We view the grounds for
equitable tolling stated in Allentown v. Marshall as alternative bases for waiver of internally
established time limits under the authority of the Board to relax procedural rules in the interests of justice
and in the absence of prejudice to other parties.
