USDOL/OALJ Reporter: ARB Decision Caselist -- September 2008

---

Summary :

[Nuclear & Environmental Digest XII D 1 b]
PROTECTED ACTIVITY; CONTENTION THAT OVERTIME ASSIGNMENT WOULD BE UNSAFE INSUFFICIENT TO IMPLICATE NUCLEAR SAFETY DEFINITIVELY AND SPECIFICALLY

In Backus v. Indiana Michigan Power Co. , ARB No. 06-129, ALJ No. 2005-ERA-8 (ARB Sept. 30, 2008), the Employer and its workers had a collective bargaining agreement consistent with NRC guidelines relating to work, rest and overtime hours. The Complainant, a nuclear power plant mechanic, was fired for refusing overtime assignments. The Complainant argued that that he engaged in ERA-protected activity when he told his duty supervisor that he would not work both the midnight shift and his day shift. The ALJ, however, found credible the duty supervisor's testimony that the Complainant did not mention any safety concerns during their conversation. This testimony was supported by the testimony of a mechanic who overheard the conversation. The ARB held, moreover, that even if it accepted the Complainant's contention that he called the assignment "unsafe," his statement to the duty supervisor did not definitively and specifically implicate nuclear safety. The ARB noted that it had previously held that "the ERA does not protect every incidental inquiry or superficial suggestion that somehow, in some way, may possibly implicate a safety concern."

---

---

Summary :

PROTECTED ACTIVITY; PROTECTED COMPLAINT MUST "DEFINITIVELY AND SPECIFICALLY" RELATE TO THE SOX SUBJECT MATTER

In Giurovici v. Equinix, Inc. , ARB No. 07-027, ALJ No. 2006-SOX-107 (ARB Sept. 30, 2008), the Respondent supplied Internet exchange services and a guaranteed power supply for its customers' computer systems. The Complainant was a site engineer. In June 2005, a fire at an electrical substation which provided electricity to the Respondent's facility caused a power failure. The Respondent's automatic control system failed, causing generator interruptions as the engineers, including the Complainant, attempted to operate the system manually and keep power flowing to customers. The Complainant discussed disagreements with an incident follow-up report with the company vice-president who had headed the investigation. At the ALJ hearing, the Complainant testified that the incident report was a "bunch of marketing strategy mumbo jumbo" designed "to save face for the company," and that he kept his mouth shut about the "untrue facts" in the report because he did not want to hurt the company's reputation and its share prices. In April 2006, the Complainant received a counseling memorandum from the Respondent specifying several work deficiencies. That same day, the Complainant called the Respondent's headquarters in California asking for a face-to-face meeting to discuss documents concerning the 2005 power outage. The Complainant was asked to send the documents by facsimile or mail, but he did not do so on the belief that he wouldn't get anywhere by doing so. A personnel manager later spoke with the Complainant about his allegation that he was being harassed with "piddly stuff" in retaliation for disagreeing with the 2005 investigation report. She asked the Complainant to mail or fax copies of the documents "he needed to show somebody" so that they could set up a call and discuss them, but he refused. She testified that she had no sense of the topic in the documents and that the Complainant would not give her any information. The Complainant was later fired after he failed to follow instructions relating to a training program he was assigned to conduct. The Complainant then filed a SOX complaint with OSHA.

The ARB found that the Complainant had not engaged in protected activity under SOX in his communications with the vice president in charge of the incident investigation about the 2005 power outage report; those communications did not reference financial matters, but rather concerns about changes in the programming of generators and that the VP did not have an accurate picture of the power interruptions. The Complainant never conveyed that his disagreements with the report meant that the Respondent was engaged in securities fraud or had violated a SEC rule or regulation or any federal law relating to fraud against shareholders. The Complainant had not directly or specifically implicated in these communications the listed categories of fraud or securities violations under the SOX.

The ARB also found that the Complainant had not engaged in protected activity under SOX when he contacted the corporate headquarters offering to reveal documents about the report. The Complainant refused to mail or fax the documents and would not divulge their contents. Moreover, none of the documents the Complainant submitted to the ALJ as evidence contained any reference to financial matters.

It was only after he was fired that the Complainant alleged that inaccurate information was included in the report to avoid harm to the Respondent's reputation and to ensure that the value of stock options owned by managers would not suffer. The ARB stated that "[s]uch speculative allegations after Giurovici's discharge are insufficient to constitute protected activity under the SOX."

CLEAR AND CONVINCING EVIDENCE THAT COMPLAINANT WOULD HAVE BEEN DISCHARGED IN THE ABSENCE OF PROTECTED ACTIVITY; COMPLAINANT'S DETERIORATING PERFORMANCE, INSUBORDINATION AND POOR TEAMWORK

In Giurovici v. Equinix, Inc. , ARB No. 07-027, ALJ No. 2006-SOX-107 (ARB Sept. 30, 2008), the ARB found that even if the Complainant had met his burden of proof to establish that he had engaged in protected activity under SOX prior to his discharge (which he had not), the Respondent adduced clear and convincing evidence that it would have fired the Complainant because of his deteriorating performance, demonstrated insubordination, and refusal to participate in teamwork.

---

---

Summary :

[STAA Whistleblower Digest II V]
CONSOLIDATION OF APPEALS BEFORE THE ARB; COMMONALITY OF EVIDENCE AND JUDICIAL AND ADMINISTRATIVE ECONOMY

In Jackson v. Smedema Trucking, Inc. , ARB Nos. 07-011, 08-052, ALJ Nos. 2005-STA-44, 2006-STA-36 (ARB Sept. 30, 2008), the Complainant filed a complaint about his discharge, which was found non-meritorious by OSHA and the ALJ. While this complaint was pending, the Complainant filed a second complaint alleging blacklisting. OSHA and a different ALJ both dismissed this complaint. On review, the ARB consolidated the appeals based on the commonality of much of the evidence, and in the interest of judicial and administrative economy.

[STAA Digest IV B 2 e]
LEGITIMATE, NONDISCRIMINATORY REASON FOR DISCHARGE; COMPLAINANT'S FALSIFICATION OF DRIVING LOGS

[STAA Digest IV C 2 b]
PRETEXT; MERE FACT THAT COMPLAINANT WAS NOT FIRED ON THE SPOT BUT RATHER THAT THE NEXT DAY DOES NOT ESTABLISH PRETEXT

In Jackson v. Smedema Trucking, Inc. , ARB Nos. 07-011, 08-052, ALJ Nos. 2005-STA-44, 2006-STA-36 (ARB Sept. 30, 2008), a previous whistleblower complaint by the Complainant against the Respondent had resulted in the Complainant's reinstatement following a settlement. An audit of the Complainant's driving records revealed several serious violations, including log falsification, and upon his return to work, the Respondent warned the Complainant about the previous violations and had him sign a notice confirming the warning. Several weeks later the Respondent terminated the Complainant for intentionally falsifying logs. The Complainant filed a new STAA complaint alleging that he was fired as retaliation for complaining about violations of DOT's maximum driving times and for filing the earlier STAA complaint. The ALJ granted summary decision against the Complainant. On appeal, the ARB affirmed. The Respondent presented evidence that the Complainant was terminated because he falsified logs in violation of DOT regulations, and the Complainant failed to put forth evidence which, giving all favorable inferences to him, raised a genuine issue of material fact that he was terminated because of the prior complaint. The ARB noted that the Complainant had signed a written warning listing his previous log violations including log falsification, and that the Complainant had expressly admitted that he intentionally falsified the logs to provide a "smoking gun" against the Respondent in subsequent audits and that he had done this to "half a dozen" or more employers. Like the ALJ, the ARB also rejected the Complainant's claim of pretext on the ground that no other employee had been fired for log falsification and that the Complainant had not been fired on the spot but instead was fired the next day. The ARB found that the Complainant failed to raise a genuine issue of material fact. "The fact that Smedema did not terminate Jackson on the spot but instead waited until the next day to terminate him does not provide probative evidence of pretext."

[STAA Whistleblower Digest IV F]
BLACKLISTING; MERE SPECULATION INSUFFICIENT RESPONSE TO RESPONDENT'S AFFIDAVITS DENYING THAT IT HAD CONTACTED A SUBSEQUENT EMPLOYER ABOUT THE COMPLAINANT

In Jackson v. Smedema Trucking, Inc. , ARB Nos. 07-011, 08-052, ALJ Nos. 2005-STA-44, 2006-STA-36 (ARB Sept. 30, 2008), the Complainant alleged blacklisting on the ground that the Respondent or its attorney contacted a subsequent employer providing information that resulted in the Complainant's termination from the new employer. The Respondent moved for summary decision before the ALJ providing affidavits stating that neither the Respondent nor its attorney contacted the subsequent employer, and providing evidence suggesting that the subsequent employer fired the Complainant for falsifying his job application. In response, the Complainant did not address the merits of the motion, but made some technical objections to the form of the motion and requested additional discovery. The ALJ denied the request for additional discovery, but gave the Complainant more time to respond to the motion. The Complainant filed a one-page response that merely rehashed his earlier procedural objections and did not address the merits of the motion. The ALJ therefore granted summary decision. On appeal, the Complainant presented argument about the denial of additional discovery, but again did not address the merits. The ARB found that the ALJ had acted within the scope of his discretion when denying the request for additional discovery, and that mere speculation that someone from the Respondent contacted the subsequent employer was an insufficient response to the motion for summary decision.

[STAA Digest II M]
ALJ DOES NOT HAVE AUTHORITY TO AWARD MONETARY SANCTIONS UNDER FRCP RULE 11 EVEN WHERE THE COMPLAINANT ADMITTED THAT HE HAD FALSIFIED DRIVING LOGS TO PROVIDE EVIDENCE OF A DOT VIOLATION, AND DONE SO SEVERAL TIMES

In Jackson v. Smedema Trucking, Inc. , ARB Nos. 07-011, 08-052, ALJ Nos. 2005-STA-44, 2006-STA-36 (ARB Sept. 30, 2008), a case in which appeals from two different ALJ decisions were consolidated before the ARB, the Respondent had asked both ALJs for FRCP Rule 11 sanctions where the Complainant filed a claim of retaliation but admitted that he intentionally falsified driving logs to provide evidence of a DOT violation and that he had done this several times before. The Complainant also admitted filing roughly forty complaints against various employers in the last five years. Both ALJs concluded that the Complainant appeared to be abusing the legal system, but that an ALJ does not have the power to award monetary sanctions. The ARB also concluded that an ALJ, absent statutory authority, does not have authority to award monetary sanctions. The ARB noted that one of the ALJs attempted to certify the issue of Rule 11 sanctions to the Western District Court of Wisconsin, but that the district court refused to award Rule 11 sanctions for procedural reasons. Jackson v. Smedema Trucking, Inc. , 536 F. Supp. 2d 1009 (W.D. Wis. 2008).

[Editor's note: The district court found that the regulation permitting an ALJ to certify misconduct issues to federal district court did not, in itself, create jurisdiction for the district court; rather, there must be statutory authority for such jurisdiction.]

---

---

Summary :

Final order approving withdrawal of objections to OSHA findings.

---

---

Summary :

[STAA DIGEST V B 2 a iv]
PROTECTED ACTIVITY; REFUSAL TO DRIVE; FATIGUE RULE

In Melton v. Yellow Transportation, Inc. , ARB No. 06-052, ALJ No. 2005-STA-2 (ARB Sept. 30, 2008), the ARB found that the Complainant engaged in protected activity under 49 U.S.C.A. § 31105(a)(1)(B)(ii), based on fatigue where, expecting a 6:00 am departure, the Complainant was put on an indeterminate hold at 12:12 pm, was entitled to a two hour notice, and would have had a nine hour drive once dispatched with the load. The ARB found that substantial evidence supported the ALJ's conclusion that the Complainant had a serious apprehension of serious injury due anticipated fatigue. Prior to making this finding, the ARB reviewed the law regarding the "fatigue rule":

   A complainant's refusal to drive may be protected activity under subsection (1)(B)(i) if his operation of a motor vehicle would have violated a Department of Transportation (DOT) regulation that states:

No driver shall operate a commercial motor vehicle, and a motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the driver's ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness or any other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle.

49 C.F.R. § 392.3 (2003). This regulation, known colloquially as the "fatigue rule," plainly covers a driver who anticipates that his or her ability or alertness is so likely to become impaired that it would be unsafe to begin or continue driving. Eash , slip op. at 6; Stauffer v. Wal-Mart Stores, Inc. , ARB No. 00-062, ALJ No. 1999-STA-021, slip op. at 5 (ARB July 31, 2001).

    However, a complainant must prove that operation of the vehicle would in fact violate the specific requirements of the fatigue rule at the time he refused to drive - a "mere good-faith belief in a violation does not suffice." Eash , slip op. at 6; Yellow Freight Sys. v. Martin , 983 F.2d 1195, 1199 (2d Cir. 1993); Cortes v. Lucky Stores, Inc. , ARB No. 98-019, ALJ No. 1996-STA-030, slip op. at 4 (ARB Feb. 27, 1998). Thus, a complainant must introduce sufficient evidence to demonstrate that his driving ability is or would be so impaired that actual unsafe operation of a motor vehicle would result. See Wrobel v. Roadway Express, Inc. , ARB No. 01-091, ALJ No. 2000-STA-048, slip op. at 6 (ARB July 31, 2003) (complainant who claimed sickness failed to produce sufficient evidence to demonstrate an actual violation of the fatigue rule).

    A complainant's refusal to drive may also be protected under subsection (1)(B)(ii) if he has "a reasonable apprehension of serious injury to [himself] or the public because of the vehicle's unsafe condition." This clause covers more than just mechanical defects of a vehicle - it is also intended to ensure "that employees are not forced to commit . . . unsafe acts." Garcia v. AAA Cooper Transp. , ARB No. 98-162, ALJ No. 1998-STA-023, slip op. at 4 (ARB Dec. 3, 1998). Thus, a driver's physical condition, including fatigue, could cause him to have a reasonable apprehension of serious injury to himself or the public if he drove in that condition. Somerson v. Yellow Freight Sys., Inc. , ARB Nos. 99-005, -036, ALJ Nos. 1998-STA-009, -11, slip op. at 14 (ARB Feb. 18, 1998). The employee's refusal to drive must be based on an objectively reasonable belief that operation of the motor vehicle would pose a risk of serious injury to the employee or the public. Jackson v. Protein Express , ARB No. 96-194, ALJ No. 1995-STA-038, slip op. at 3 (ARB Jan. 9, 1997).

USDOL/OALJ Reporter at 6.

[Nuclear and Environmental Digest XIII A]
[STAA Digest VI A]
ADVERSE ACTION; ARB FINDS THAT THE BURLINGTON NORTHERN "MATERIALLY ADVERSE" STANDARD APPLIES TO THE STAA AND ALL OF THE EMPLOYMENT PROTECTION STATUTES ADJUDICATED BY THE DEPARTMENT OF LABOR

In Melton v. Yellow Transportation, Inc. , ARB No. 06-052, ALJ No. 2005-STA-2 (ARB Sept. 30, 2008), the ARB addressed the Complainant's request on appeal to abandon the "tangible employment consequence" test, and to adopt instead the deterrence standard of Burlington Northern & Santa Fe Ry. Co. v. White , 548 U.S. 53 (2006). In Melton , the Complainant had been issued a warning letter in which the Respondent admonished the Complainant not to use fatigue as a subterfuge to avoid work. Both the Respondent and union witnesses testified that a single warning letter was corrective action, and although it was a pre-condition to most discipline, it was not itself discipline. The letter had no effect on hours, work assignments, pay, opportunities for advancement, or retirement benefits. All members of the Board agreed that under ARB precedent, such a warning letter would not be considered adverse employment action. The panel, however, spilt on the issue of whether the Burlington Northern "materially adverse" standard should now apply to an STAA whistleblower case (as well as all of the other anti-retaliation laws adjudicated before the DOL). A two-member majority found that it does. The majority wrote:

    Burlington Northern held that for the employer action to be deemed "materially adverse," it must be such that it "could well dissuade a reasonable worker from making or supporting a charge of discrimination." For purposes of the retaliation statutes that the Labor Department adjudicates, the test is whether the employer action could dissuade a reasonable worker from engaging in protected activity. According to the Court, a "reasonable worker" is a "reasonable person in the plaintiff's position."

USDOL/OALJ Reporter at 19-20 (footnotes omitted). The majority stated that "the purpose of the employee protections that the Labor Department administers is to encourage employees to freely report noncompliance with safety, environmental, or securities regulations and thus protect the public. Therefore, we think that testing the employer's action by whether it would deter a similarly situated person from reporting a safety or environmental or securities concern effectively promotes the purpose of the anti-retaliation statutes." Id. at 20. Moreover, it stated that both ARB and federal case law demonstrated that the terms "tangible consequences" and "materially adverse" are "used interchangeably to describe the level of severity an employer's action must reach before it is actionable adverse employment action." Id . The majority summarized:

The Board has consistently recognized that not every action taken by an employer that renders an employee unhappy constitutes an adverse employment action. The employee protections that the Labor Department administers are not "general civility codes," nor do they make ordinary tribulations of the workplace actionable. Actions that cause the employee only temporary unhappiness do not have an adverse effect on compensation, terms, conditions, or privileges of employment. Therefore, the fact that the Burlington Northern test is phrased in terms of "materially adverse" rather than "tangible consequence," or "significant change," or "materially disadvantaged," or the like, is of no consequence. Applying this test would not deviate from past precedent. Like the Burlington Northern Court, our task has always been, and will continue to be, to separate harmful employer action from petty, minor workplace tribulations.

Id. at 23 (footnotes omitted). Applying the standard, the majority held that the warning letter in the instant case "was not materially adverse because the record demonstrates that it did not affect his pay, terms, or privileges of employment, did not lead to discipline, and was removed from his personnel file without consequences. Therefore, under the particular facts and circumstances presented here, the warning letter at issue would not dissuade a reasonable employee from refusing to drive because of fatigue." Id. at 24.

[STAA Whistleblower Digest IV C 3]
PRETEXT NOT SHOWN IF THE EMPLOYER'S REASON FOR ISSUING A WARNING LETTER WAS BASED ON THE MISTAKEN, BUT NONETHELESS REASONABLE BELIEF UNDER THE CIRCUMSTANCES THAT THE COMPLAINANT WAS NOT ACTUALLY FATIGUED WHEN HE TOOK HIMSELF OUT OF SERVICE FOR A DISPATCH

In Melton v. Yellow Transportation, Inc. , ARB No. 06-052, ALJ No. 2005-STA-2 (ARB Sept. 30, 2008), the ARB found that although the Complainant reasonably believed that he would be too tired to drive, the Respondent articulated a legitimate non-discriminatory reason for giving the Complainant a warning letter not to use fatigue as a subterfuge to avoid work. Specifically, the Complainant had just come off a ten-day vacation and had had ample opportunity to rest to safely complete his run. Under the dispatch schedule, the Complainant by missing a Sunday run would not work again until the following Wednesday. Thus, if the claim of fatigue was untrue, the warning letter would have been a legitimate exercise of the Respondent's rights. The Complainant therefore had the burden of showing that the reason for the warning letter was pretext. The ARB agreed with the ALJ's finding, however, that the Respondent issued the warning letter based on a mistaken, but reasonable, belief that the Complainant was not genuinely fatigued. The Complainant, therefore failed in his ultimate burden of proving that his protected activity (the complaint of fatigue) was the reason for the warning letter.

---

---

Summary :

[Nuclear & Environmental Digest IX]
2007 AMENDMENTS TO 29 C.F.R. PART 24 REGULATIONS NOT APPLIED RETROACTIVELY

In Schafermeyer v. Blue Grass Army Depot , ARB No. 07-082, ALJ No. 2007-CAA-1 (ARB Sept. 30, 2008), the ARB applied the 29 C.F.R. Part 24 regulations as they appeared prior to their amendment in 2007, which was after the Complainant filed his complaint on the grounds that the DOL had not indicated that the new regulations should be applied retroactively and that neither party had argued that the new regulations should be applied.

[Editor's note: Compare Rogers v. Pregis Innovative Packaging, Inc. , 2008-CAA-1 (ALJ Aug. 29, 2008), in which the Chief ALJ applied the amended Part 24 rules in consideration of an adjudicatory settlement. The Chief ALJ wrote: "These regulations, being procedural rather than substantive, became effective immediately for pending cases upon publication in the Federal Register. See 72 Fed. Reg. at 44962 (Paragraph VI. Administrative Procedure Act)." Slip op. at 3.]

[Nuclear and Environmental Whistleblower Digest IV B 3]

TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; WRONG FORUM; COMPLAINT IN WRONG FORUM MUST BE TIMELY AND RAISE PRECISE STATUTORY CLAIM; IGNORANCE OF THE LAW DOES NOT WARRANT TOLLING; RESPONDENT DOES NOT HAVE A LEGAL OBLIGATION TO NOTIFY COMPLAINANT OF WHISTLEBLOWER RIGHTS

In Schafermeyer v. Blue Grass Army Depot , ARB No. 07-082, ALJ No. 2007-CAA-1 (ARB Sept. 30, 2008), the Complainant filed a complaint with the MSPB 36 days after he was notified that he would be discharged. The MSPB ALJ informed the Complainant that his MSPB complaint would be dismissed because he was a probationary employee, and that he should have filed his complaint under OSHA's whistleblower protection program. Thereafter, the Complainant voluntarily dismissed his MSPB complaint and filed a whistleblower complaint with OSHA under the SWDA and the CAA. By that time, 105 days had passed since he had been discharged.

The ARB held that the Complainant was not entitled to equitable tolling under the "wrong forum" tolling element of School Dist. of Allentown 657 F.2d 16, 20 (3d Cir. 1981), because that tolling provision required that the filing in the wrong forum itself be timely. In the instant case, the complaint was filed with the MSPB 36 days after the discharge. The limitations period for the SWDA and the CAA was only 30 days.

oreover, even if the complaint had been timely filed at the MSPB, the ARB found that it did not raise the precise statutory claim in the wrong forum. The Complainant did not know that he had a potential cause of action under the environmental statutes until the MSPB ALJ so informed him, so this was not a case in which the Complainant intended to file an environmental whistleblower complaint but merely did so in the wrong forum. The ARB was not persuaded by the Complainant's argument that even though he did not intentionally file a CAA or SWDA complaint, the MSPB complaint nonetheless raised such a precise claim. The ARB found nothing in the MSPB complaint presenting a simple statement that he was entitled to relief because of protected activity under the environmental whistleblower statutes, that the Respondent knew of those activities, and consequently terminated his employment. The ARB held that the MSPB complaint was insufficient to put the Respondent on notice that the Complainant was asserting a claim of whistleblower discrimination against it under the environmental protection acts.

The ARB rejected the Complainant's claim that equitable tolling should be applied because he was diligent in the absence of actual or constructive knowledge of the limitations period, and because the Respondent had only notified him of the right to file a MSPB complaint. The ARB found that ignorance of the law is not sufficient, standing alone, to warrant equitable tolling; that there was no argument that the Respondent actively misled the Complainant from seeking legal advice; and that the Respondent was under no legal obligation to inform the Complainant of any environmental whistleblower rights.

---

---

Summary :

Final order approving withdrawal of objections to OSHA findings.

---

---

Summary :

Final order approving settlement.

---

---

Summary :

SITE OF THE WORK; TRUCK DRIVING FROM BORROW PITS UNDER PRE-2001 LAW

In Gary J. Wicke , ARB No. 06-124 (ARB Sept. 30, 2008), the ARB affirmed the Wage and Hour Administrator's finding that the Petitioner's truck driving work involved transporting materials from borrow pits located three to five miles from the various stream crossing rehabilitation project sites at issue, and therefore did not meet the statutory requirement that it be performed at the "site of the work." The appeal was decided under the pre-2001 regulations.

---

---

Summary :

ASSISTANT SECRETARY FOR OSHA'S PETITION TO INTERVENE FOR PURPOSE OF SEEKING INTERLOCUTORY REVIEW BY THE ARB OF AN ALJ'S ORDER IS PROPERLY FILED WITH THE ALJ RATHER THAN THE ARB

SUBPOENA; CERTIFICATION OF FACTS TO DISTRICT COURT; QUESTION OF AUTHORITY OF ARB TO REVIEW ALJ'S CERTIFICATION ORDER MOOTED BY DISTRICT COURT'S REFUSAL TO FILE ALJ'S ORDER

In Davis v. The Home Depot, Inc. , ARB No. 08-114, ALJ No. 2006-SOX-17 (ARB Sept. 29, 2008), the ALJ issued a subpoena to compel a former Home Depot employee to testify at a SOX hearing. The former employee failed to appear. The ALJ then certified the facts to the District Court for the District of Columbia pursuant to 29 C.F.R. § 18.29(b)(2008), and requested the court to compel the former employee's attendance and testimony before the ALJ. The Assistant Secretary for OSHA then filed with the ARB a motion to intervene, and a petition for review of the ALJ's order certifying facts to the U.S. district court. In the meantime, the Chief Judge of the district court wrote to the ALJ refusing to accept her order, and questioning her authority to file the order within the participation of the U.S. Attorney's office or the Department of Justice. The ALJ replied that she believed that the Chief Judge's interpretation was incorrect, but because the Assistant Secretary was seeking interlocutory review of the order before the ARB, she would await the ARB's decision and then consider whether to resubmit the order to the district court. The ARB, not knowing about the exchange of letters between the Chief Judge and the ALJ, issued an order permitting the parties to brief the question of whether the Assistant Secretary should be permitted to intervene. The ALJ then issued an order granting the Assistant Secretary's petition to intervene, finding that such a motion should have been filed before her since the only proceedings in the case were pending before her.

The ARB suggested that the proper procedure would have been for it to decide where the Assistant Secretary's petition to intervene should have been filed, but since it agreed with the conclusion that it should have been filed before the ALJ, found no useful purpose to remand to the ALJ. The ARB dismissed the Assistant Secretary's petition for review (assuming that it would even have been proper for the ARB to review the ALJ's certification order), finding that the Chief Judge's refusal to file the ALJ's certification order and the ALJ's decision not to refile it, left no justiciable issue to decide.

---

---

Summary :

[STAA Digest X A 2]
STAA HEARING MAY NOT BE DISMISSED BASED ON A SETTLEMENT UNLESS AND UNTIL THE SETTLEMENT AGREEMENT IS SUBMITTED TO THE ALJ OR ARB FOR REVIEW

In Karoly v. Brink's Inc. , ARB No. 07-019, ALJ No. 2005-STA-10 (ARB Sept. 29, 2008), the ARB remanded the case to the ALJ for a hearing or submission of a settlement agreement, where the Complainant had requested dismissal of the STAA action based on a settlement, but failed to provide a copy of a signed, executed settlement agreement to either the ALJ or the ARB.

---

---

Summary :

[STAA Digest V A 4 b iii]

[STAA DIGEST V B 2 a iv]
PROTECTED ACTIVITY; REASONABLE APPREHENSION CLAUSE; SUMMARY DECISION WHERE COMPLAINANT REFUSED TO DRIVE WITHOUT EVEN INSPECTING OR TESTING THE TRUCK DESPITE BEING TOLD THAT THE TRUCK HAD BEEN TESTED AND FOUND TO BE SAFE

In Barnett v. Lattimore Materials, Inc. , ARB No. 07-053, ALJ No. 2006-STA-38 (ARB Sept. 22, 2008), the ARB affirmed the ALJ's grant of summary judgment in favor of the Respondent where the undisputed facts were that the truck assigned to the Complainant, in which the Complainant had been involved in an accident, had been checked and found to be safe, the Complainant had been told that it had been checked and found to be safe, the Complainant had not complained about brakes at the time of the accident, the truck had been driven loaded after the accident safely, but the Complainant refused to drive the truck without inspecting or testing it. The ARB found that under these facts, the Complainant did not have an objectively reasonable belief that the truck was unsafe to drive due to defective brakes. The case had been brought under the "reasonable apprehension" subsection of the STAA at 49 U.S.C.A. § 31105(a)(1)(B)(ii).

---