USDOL/OALJ Reporter: ARB Decision Caselist - December 2015

[STAA Digest II P]
SUMMARY DECISION; ADJUDICATOR DOES NOT WEIGH EVIDENCE OR DETERMINE TRUTH OF MATTERS ASSERTED; DENIAL OF SUMMARY DECISION SIMPLY MEANS EVIDENTIARY HEARING IS REQUIRED TO RESOLVE FACTUAL QUESTION

In White v. Carl Perry Enterprise, Inc , ARB No. 14-024, 2013-STA-13 (ARB Dec. 10, 2015), the ARB summarized what the adjudicator must do when ruling on a motion for summary decision:

When reviewing the evidence the parties submitted, the ALJ must view it in the light most favorable to the non-moving party. The moving party must come forward with an initial showing that it is entitled to summary decision. In ruling on a motion for summary decision, neither the ALJ nor the Board weighs the evidence or determines the truth of the matters asserted. Denying summary decision because there is a genuine issue of material fact simply means that an evidentiary hearing is required to resolve some factual questions; it is not an assessment on the merits of any particular claim or defense.

USDOL/OALJ Reporter at 3-4 (footnotes omitted).

[STAA Digest II P]
PROTECTED ACTIVITY; COMPLAINANT’S MERELY INFORMING RESPONDENT THAT HE WAS SUFFERING FROM INJURIES AND WAS NOT FIT TO LEGALLY OPERATE VEHICLES IS NOT PROTECTED ACTIVITY

PROTECTED ACTIVITY; MERE CONCLUSIVE STATEMENT THAT RESPONDENT WAS VIOLATING STAA RIGHTS IS NOT PROTECTED ACTIVITY

In White v. Carl Perry Enterprise, Inc. , ARB No. 14-024, 2013-STA-13 (ARB Dec. 10, 2015), the Complainant suffered a work-related injury, and some 4-5 months later, was cleared by DOT to return to work and so informed Respondent, who told him to contact one of its dispatchers. The Complainant failed to do so. On May 3, the Complainant engaged in conversations with the Respondent in which he alleged that the Respondent had failed to provide information to the state DOL. The Complainant alleged before OSHA that the Respondent had terminated him when he refused to return to work until released medically. Before the ALJ, the Respondent filed a letter, which the ALJ treated as a motion for summary decision, which the ALJ granted on the grounds that the Complainant had failed to establish a genuine issue of material fact (1) that his employment was terminated, and (2) that his alleged refusal to drive before he was cleared by medical personnel was a contributing factor On appeal, the ARB considering the motion de novo, did not reach the grounds decided by the ALJ, but instead determined that the Complainant failed to point to sufficient information in the record that could support a factual finding that he engaged in protected activity.

In response to the Motion, the Complainant submitted an affidavit listing his alleged protected activities, and copies of e-mail messages and transcripts of telephone conversations. The ARB found these materials provided no evidence that the Complainant engaged in STAA-protected activity during his employment with the Respondent. The Complainant spoke to the Employer reminding that he was still suffering from his injuries, was not fit to legally operate vehicles, and had not been released from a doctor’s case; but he did not contend, and no evidence reflected that the Respondent directed him to operate a vehicle at that time. The ARB thus found that his statements could not be construed as a refusal to drive under the STAA whistleblower provision, nor a complaint about motor vehicle safety. The Complainant also had phone conversations with the Respondent in which he accused the Respondent of failing to provide sufficient tax information about him to the Georgia Department of Labor, and of violating his rights under the STAA. The ARB found the accusation of “nothing more than a conclusive statement that fails to point to any specific evidence of unsafe conduct or violations of a motor vehicle safety or security regulation, standard, or order.” USDOL/OALJ Reporter at 5 and n.21 (citing Menefee v. Tandem Transp. Corp. , ARB No. 09-046, ALJ No. 2008-STA-055, slip op. at 8 (ARB Apr. 30, 2010); see also Coates v. Southeast Milk, Inc. , ARB No. 05-050, ALJ No. 2004-STA- 60, slip op. at 5 (ARB July 31, 2007) (evidence offered in an opposing affidavit must be of sufficient caliber or quantity to allow a rational finder of fact to find for that party)).

[[STAA Digest V B 2 c]]
PROTECTED ACTIVITY; REFUSAL TO DRIVE OVERWEIGHT TRUCK IS A REFUSAL TO VIOLATE A REGULATION RELATED TO COMMERCIAL MOTOR VEHICLE SAFETY

In Hood v. R&M Pro Transport, LLC , ARB No. 15-010, ALJ No. 2012-STA-36 (ARB Dec. 4, 2015), the Respondents argued on appeal that the Complainant did not engage in protected activity because it would not have been a safety issue if the Complainant had driven an overweight truck. The ARB rejected this argument, stating that the Respondents had ignored that protected activity includes an employee’s refusal to operate a motor vehicle if it would violate a regulation related to commercial motor vehicle safety, health, or security. The ARB noted that the ALJ had explained that the regulation proscribing driving overweight trucks is a regulation related to safety.

[STAA Digest VI B 1]
ADVERSE ACTION; RESPONDENT’S ACCEPTANCE OF EQUIVOCAL “VOLUNTARY RESIGNATION” CONSTITUTES A DISCHARGE

In Hood v. R&M Pro Transport, LLC , ARB No. 15-010, ALJ No. 2012-STA-36 (ARB Dec. 4, 2015), the Respondents argued on appeal that they took no adverse action against the Complainant. The ARB, however, agreed with the ALJ’s legal analysis and conclusions, when he explained that the Respondents each interpreted as a resignation the Complainant’s statement that the Respondents were asking him to do something illegal, that he was not going to do it, was “done,” and would clean out his truck. The ARB agreed with the ALJ’s reliance on Minne v. Star Air, Inc. , ALJ No. 2004-STA-26 (ARB Oct. 31, 2007) and Klosterman v. E.J. Davies , ARB No. 08-035, ALJ No. 2007-STA-19 (ARB Sept. 30, 2010), to find that when the Respondents treated the Complainant’s statement as a voluntary resignation, and then accepted that resignation the next day, they effectively discharged the Complainant. The ALJ had found that the Complainant did not unequivocally quit.

[STAA Digest VII B 3]
JOINT RESPONDENTS; WHERE RESPONDENTS HAD NOT ASKED ALJ TO APPORTION LIABILITY, ISSUE WAS WAIVED ON APPEAL AND THE RESPONDENTS THEREFORE JOINTLY SHARED LIABILITY

In Hood v. R&M Pro Transport, LLC , ARB No. 15-010, ALJ No. 2012-STA-36 (ARB Dec. 4, 2015), the Complainant worked as a contract driver for one Respondent, a company that hauled freight exclusively for the second Respondent. The ALJ found both Respondents worked jointly to assign deliveries to the Complainant, pay him, and fire him, and were both “employers” and covered under the STAA. The ALJ found both Respondents liable, and ordered each to pay damages. On appeal, the Respondents argued that the ALJ made no clear finding as to apportionment of liability. The ARB, however, stated that the Respondents failed to show where in the record they asked the ALJ to apportion liability or where in the record such an argument was made. The ARB thus found that the argument had been waived. The ARB stated that the Respondents jointly share liability, and could work together to ensure that the ALJ’s orders were carried out.

[STAA Digest II E 9]
ALJ’S ISSUANCE OF DECISION 17 MONTHS AFTER THE EVIDENTIARY HEARING FOUND NOT BE AN ABUSE OF DISCRETION; NEITHER OALJ RULES NOR STAA REGULATIONS IMPOSE TIME LIMITATION FOR ISSUANCE OF ALJ DECISION

In Hood v. R&M Pro Transport, LLC , ARB No. 15-010, ALJ No. 2012-STA-36 (ARB Dec. 4, 2015), the Respondents’ argued that they were prejudiced by the ALJ’s issuance of his decision approximately seventeen months after the hearing. The ARB found that neither the OALJ regulations, nor the STAA regulations, provide for a time limitation for an ALJ’s decision, and held that the ALJ had not abused his discretion. The ARB noted 29 C.F.R. 18.92, which states that “[a]t the conclusion of the proceeding, the judge must issue a written decision and order.” and 29 C.F.R. 18.12(b)(8), which gives the ALJ “all powers necessary to conduct fair and impartial proceedings, including . . . to . . . [i]ssue decisions and orders.”