This is a proceeding arising under the employee protection provision of
the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. §2305.
Complainant Rezac contends that his employer discharged him from his
position as an over-the-road truck driver, in violation of section 2305, because he complained to
Roadway management and to the United States Department of Transportation about unsafe
equipment and practices. The sole issue before me is whether Complainant timely filed his
complaint.
The record reveals that, on September 21, 1983, Complainant was told by
his supervisor that he was fired. Two days later, on September 23rd, Roadway sent Complainant
a written notice of his discharge stating that his discharge was effective on September 21st.
Complainant thereupon filed a grievance under the collective bargaining agreement which
applied to his employment. On November 14, 1983, a grievance arbitration panel sustained
Complainant's discharge. Subsequently, either on May 9th or May 24, 1984,1 a complaint was filed alleging that
Complainant was discharged as a result of his safety complaints.
Prior to a hearing on the merits of the complaint, Roadway filed a motion
for summary judgment. Telephonic oral argument was held, and written position statements
were submitted by the parties. Complainant, who was not represented by legal counsel but by a
Transportation Consultant friend, took the position that the statutory time limit for the filing of
complaints under the STAA began to run from the date of the decision of the arbitration panel
upholding his discharge. Complainant argued that, inasmuch as a large percentage of Roadway
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drivers had in the past been put back to work after a grievance hearing, he expected that he too
would be reinstated; therefore, his termination was not final until itwas upheld by the
arbitration panel. Complainant also contended that the Federal authorities in Phoenix advised
him that the STAA limitation period would begin to run from the date of the decision of the
arbitration panel. Finally, Complainant argued that, in the absence of any regulations
implementing the STAA, consideration should be given to a parallel regulation of the Secretary
of Labor which permits the tolling of the limitations period for the filing of OSHA discrim-
ination complaints under the Occupational Safety and Health Act (OSHA), 29 U.S.C.
§651, where the employee has filed a grievance.
Roadway took the position that Complainant's discharge was final on
September 21, 1983, and that the statutory period within which Complainant had to file his
complaint began to run from that date. Roadway further argued that, since Complainant's
contractual rights under the collective bargaining agreement and his statutory rights under the
STAA are independent of one another, there is no basis for the tolling of the STAA limitation
period until the termination of a grievance proceeding. Roadway also objected to the application
of the OSHA regulation on the ground that the policy considerations in implementing each of
these statutes are different.
Administrative Law Judge (ALJ) Steven E. Halpern issued a decision
recommending that the complaint be dismissed as untimely. Specifically, the ALJ held that the
STAA period of limitations began to run from the date of Complainant's discharge, either on
September 21 or 23 in 1983. The ALJ reasoned that the September 21/23 discharge constituted
the violation of the STAA which would trigger the running of the statutory limitations period,
and that the discharge would have remained a violation even if the grievance had never been
filed. The ALJ also found that no separate discriminatory action in violation of the STAA
occurred when the arbitration panel sustained Complainant's discharge. The ALJ did not
comment on any other arguments raised by the parties.
For the reasons set forth below, I accept the ALJ's conclusion that the
complaint in this case was untimely filed.
The STAA provides that any employee, against Whom discriminatory
action is taken in violation of section 2305, may, 'within one hundred and eighty days after such
violation occurs', file a complaint with the Secretary of Labor. 49 U.S.C. §2305(c). As
noted by the ALJ, the alleged violation in this case is Complainant's discharge from his position
as a truck driver. That discharge is admitted by Complainant to have become final2 on either September 21 or 23
1Complainant contends that he filed
his complaint on May 9th when he contacted by phone the OSHA Area Director in Phoenix,
Arizona. Employer contends that the complaint was filed on May 24th, on which date a written
document was prepared on an OSHA form by someone in OSHA's San Francisco Regional
Office. The ALJ held that, because Roadway failed to timely object to the OSHA Regional
Administrator's finding that the complaint was filed on May 9th, the March 9th date was not in
dispute. In view of my decision in this case, it is not necessary for me to rule, and I therefore
make no ruling, on whether the complaint was filed on May 9th or May 24th.
2At the hearing on March 1, 1985,
both Complainant and his representative were asked by Judge Halpern if they agreed with
Roadway's statement "that it is possible that you could have been reinstated as a result of
the grievance procedure, but that in any event, the firing-was final until such time as the
grievance committee decided otherwise". Both Complainant and his representative agreed.
Tr.13. Furthermore, Roadway contended that, when it discharged Complainant, in September of
1983, he was paid all wages and unused vacation time, was immediately removed from the
seniority list; thus he was not on any kind of layoff or suspended status pending his grievance
hearing. Complainant does not contest these statements.
3In view of my decision that the
complaint was untimely filed, it makes no difference whether the discharge occurred on
September 21 or September 23. I, therefore, do not decide this question.
Additionally, I do not decide whether the arbitration panel's decision
constitued a violation of section 2305 since Complainant made no such argument.
