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Tuggle v. Roadway Express, Inc., 2003-STA-8 (ALJ Mar. 7, 2003)
U.S. Department of Labor | Office of Administrative Law Judges Heritage Plaza Bldg. - Suite 530 111 Veterans Memorial Blvd Metairie, LA 70005 (504) 589-6201 | ![]() |
Issue Date: 07 March 2003
CASE NO.: 2003-STA-00008
PHIL P. TUGGLE,
v.
ROADWAY EXPRESS, INC.,
Complainant
Respondent
This proceeding arises from a claim under the Surface Transportation Assistance Act of 1982 ("the Act"), 49 U.S.C. § 31105. On February 18, 2003, Respondent moved for dismissal of the claim pursuant to 29 C.F.R. § 1978.111(d) alleging that the matter was settled on September 21, 2001. On February 20, 2003, Complainant filed an Answer. Having reviewed the Motion, the Answer and the evidence submitted, the Court is of the opinion that the Motion to Dismiss should be granted.
I find the following undisputed facts:
1. Complainant and his co-driver were scheduled to make a run to Arizona on July 3, 2001. On July 2 and July 3, 2001, Complainant and members of Respondent's management met and discussed problems that had arisen between Complainant and his co-driver.
2. Complainant did not make the run but called the sleeper coordinator and asked to be put on the sick board. Complainant then left Respondent's facility and proceeded to the union hall. A union official contacted Respondent. Through the union official, Complainant was informed that he was terminated by Respondent.
3. On July 5, 2001, Complainant received a termination notice in the mail. He contacted his union representative by letter concerning the termination.
4. On July 13, 2001, Complainant initiated the grievance process available to him under the terms of the National Master Freight Agreement and Over-The-Road Supplemental Agreement. Complainant alleged that on July 3, 2001, he was ill and could not operate a vehicle at that time and alleged Respondent violated "DOT regulations Article 49 CRF-Chapter III Part 392.3 Ill or fatigued operator."
5. On September 11, 2001, Complainant filed a complaint with OSHA under the Act alleging that he was terminated in reprisal for refusing to drive while ill on July 3, 2001.
6. The facts at issue in the grievance process are the same as the facts at issue in the case brought under the Act.
7. On September 21, 2001, several meetings took place between Complainant, Complainant's union representatives and Respondent. The result of these meetings was an agreement among the Parties that the grievance filed by Complainant's union representative under the National Master Freight Agreement and Over-The-Road Supplemental Agreement was settled and Complainant was to be reinstated with no back pay beginning September 29, 2001.
8. Complainant returned to work on September 29, 2001. The terms of the September 21, 2001 agreement have been complied with.
29 C.F.R. § 1978.112 provides that an employee who files a complaint under the Act may also pursue remedies under grievance arbitration proceedings in collective bargaining agreements. The regulations provide the Secretary may defer to the decision of another forum if it is clear that those proceedings dealt adequately with all factual issues, that the proceedings were fair, regular and free of procedural infirmities, and that the outcome of the proceedings was not repugnant to the purpose and policy of the Act. The regulations specifically recognize the national policy favoring voluntary resolution of disputes under procedures in collective bargaining agreements. 29 C.F.R. § 1978.112(a)(2).
Administrative law judges and the Board have previously deferred to the outcome of arbitration proceedings and dismissed complaints filed under the Act. See Porter v. Greyhound Bus Lines, ARB No. 98-116, ALJ No. 96-STA-23 (ARB June 12, 1998). The reported decisions have dismissed complaints filed under the Act after the complainants had lost in arbitration proceedings. It seems axiomatic that a complainant who would be bound by an adverse grievance arbitration finding as in Porter would also be bound by an agreed upon settlement achieved during the grievance process as long as the requirements of § 1978.112 are met.
In his Answer to the Motion to Dismiss, Complainant argues that he should not be bound by the grievance settlement agreement as he had no experience with this type of grievance procedures, that he only had one day to consider the settlement, that the settlement was not clear and that he was not represented by an attorney. While these are certainly factors to be considered in determining whether the grievance proceedings were fair, regular and free of procedural infirmities, even if true, these facts do not prevent deference to the results reached during the grievance process.
I note that on September 21, 2001, several meetings took place between Complainant, Complainant's union representatives and Respondent. The settlement reached provided that Complainant was to be reinstated with no back pay beginning September 29, 2001. There is no indication that this was a rush-rush deal. Several meetings took place on September 21, 2001. It was not until September 24, 2001, that the letter was sent confirming the terms of the settlement. It was not until September 29, 2001, that Complainant actually returned to work. Complainant had eight days to consider the terms of the settlement before he returned to work. While Complainant did not have an attorney, he did have union representation. He also had adequate time to consult with an attorney if he chose to do so. And the result reached from these several meetings was very clear: Complainant was to be reinstated with no back pay beginning September 29, 2001. Complainant has also taken advantage of the settlement: as he returned to work and has continued in the employ of Respondent for the past seventeen months.
The facts at issue in the grievance process are the same as the facts at issue in the case brought under the Act. I find that the Parties and the union dealt adequately with these factual issues. Complainant was represented by more than one union official during the grievance process and I find the resultant settlement was fair, regular and free of procedural infirmities. Pursuant to the settlement agreement, Complainant was returned to full duty, albeit with the three months he was out of work being treated as a suspension without pay. I find this result is not repugnant to the purpose and policy of the Act. I find the Parties voluntarily resolved their disputes under procedures in their collective bargaining agreement.
It is hereby RECOMMENDED that Respondent's Motion For Approval of Adjudicatory Settlement and to Dismiss Complaint be GRANTED and that Phil P. Tuggle's claim be DISMISSED.
LARRY W. PRICE
LWP:bab
Administrative Law Judge
NOTICE: This Recommended Decision and Order and the administrative file in this matter will be forwarded for review by the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. See 29 C.F.R. §1978.109(a); 61 Fed. Reg. 19978 (1996).