[Code of Federal Regulations]
[Title 29, Volume 9, Parts 1927 to end]
[Revised as of July 1, 1997]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1978]
[Page 195-201]
TITLE 29--LABOR
CHAPTER XVII--OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, DEPARTMENT OF LABOR--(CONTINUED)
PART 1978--RULES FOR IMPLEMENTING SECTION 405 OF THE SURFACE TRANSPORTATION ASSISTANCE ACT OF 1982 (STAA)
Subpart A--Interpretive Rules [Reserved]
Subpart B--Rules of Procedure
Complaints, Investigations, Findings and Preliminary Orders
Sec.
1978.100 Purpose and scope.
1978.101 Definitions.
1978.102 Filing of discrimination complaint.
1978.103 Investigation.
1978.104 Issuance of findings and preliminary orders.
1978.105 Objections to the findings and the preliminary order.
Litigation
1978.106 Scope of rules; applicability of other rules; notice of
hearing.
1978.107 Parties.
1978.108 Captions, titles of cases.
1978.109 Decision and orders.
1978.110 Judicial review.
1978.111 Withdrawal of section 405 complaints, objections, and
findings; settlement.
Miscellaneous Provisions
1978.112 Arbitration or other proceedings.
1978.113 Judicial enforcement.
1978.114 Statutory time periods.
1978.115 Special circumstances; waiver of rules.
Authority: 29 U.S.C. 657(g)(2); 29 U.S.C. 660(c)(2); 49 U.S.C. 31101
and 31105; Secretary of Labor's Order No. 1-90, 55 FR 9033.
Source: 53 FR 47681, Nov. 25, 1988, unless otherwise noted.
Subpart A--Interpretive Rules [Reserved]
Subpart B--Rules of Procedure
Complaints, Investigations, Findings and Preliminary Orders
Sec. 1978.100 Purpose and scope.
(a) This subpart implements the procedural aspects of section 405 of
the Surface Transportation Assistance Act of 1982, 49 U.S.C. 2305, which
provides for employee protection from discrimination because the
employee has engaged in protected activity pertaining to commercial
motor vehicle safety and health matters.
(b) Procedures are established by this subpart pursuant to the
statutory provision set forth above for the expeditious handling of
complaints of discrimination made by employees, or persons acting on
their behalf. These rules, together with those rules set forth at 29 CFR
part 18, set forth the procedures for submission of complaints under
section 405, investigations, issuance of findings and preliminary
orders, objections thereto, litigation before administrative law judges,
post-hearing administrative review, withdrawals and settlements,
judicial review and enforcement, and deferral to other forums.
Sec. 1978.101 Definitions.
(a) Act means the Surface Transportation Assistance Act of 1982
(STAA) (49 U.S.C. 2301 et seq.).
(b) Secretary means Secretary of Labor or persons to whom authority
under the Act has been delegated.
[[Page 196]]
(c) Assistant Secretary means the Assistant Secretary of Labor for
Occupational Safety and Health or the person or persons to whom he or
she delegates authority under the Act.
(d) Employee means (1) a driver of a commercial motor vehicle
(including an independent contractor while in the course of personally
operating a commercial motor vehicle); (2) a mechanic; (3) a freight
handler; or (4) any individual other than an employer; who is employed
by a commercial motor carrier and who in the course of his employment
directly affects commercial motor vehicle safety, but such term does not
include an employee of the United States, any State, or a political
subdivision of a State who is acting within the course of such
employment.
(e) Commercial motor carrier means a person who meets the definition
of motor carrier found at 49 U.S.C. 10102(13) (Supp. 1987) and motor
private carrier found at 49 U.S.C. 10102(16) (Supp. 1987).
(f) OSHA means the Occupational Safety and Health Administration.
(g) Complainant means the employee who filed a section 405 complaint
or on whose behalf a complaint was filed.
(h) Named person means the person alleged to have violated section
405.
(i) Person means one or more individuals, partnerships,
associations, corporations, business trusts, legal representatives or
any group of persons.
Sec. 1978.102 Filing of discrimination complaint.
(a) Who may file. An employee may file, or have filed by any person
on the employee's behalf, a complaint alleging a violation of section
405.
(b) Nature of filing. No particular form of complaint is required.
(c) Place of filing. The complaint should be filed with the OSHA
Area Director responsible for enforcement activities in the geographical
area where the employee resides or was employed, but filing with any
OSHA officer or employee is sufficient. Addresses and telephone numbers
for these officials are set forth in local directories.
(d) Time for filing. (1) Section 405(c)(1) provides that an employee
who believes that he has been discriminated against in violation of
section 405 (a) or (b) ``* * * may, within one hundred and eighty days
after such alleged violation occurs,'' file or have filed by any person
on the employee's behalf a complaint with the Secretary.
(2) A major purpose of the 180-day period in this provision is to
allow the Secretary to decline to entertain complaints which have become
stale. Accordingly, complaints not filed within 180 days of an alleged
violation will ordinarily be considered to be untimely.
(3) However, there are circumstances which will justify tolling of
the 180-day period on the basis of recognized equitable principles or
because of extenuating circumstances, e.g., where the employer has
concealed or misled the employee regarding the grounds for discharge or
other adverse action; or where the discrimination is in the nature of a
continuing violation. The pendency of grievance-arbitration proceedings
or filing with another agency are examples of circumstances which do not
justify a tolling of the 180-day period. The Assistant Secretary will
not ordinarily investigate complaints which are determined to be
untimely.
(e) Relationship to section 11(c) complaints. A complaint filed by
an employee within thirty days of the alleged violation or otherwise
timely filed pursuant to section 11(c) of the OSHA Act, which alleges
discrimination relating to safety or health, shall be deemed to be a
complaint filed under both section 405 and section 11(c). Normal
procedures for investigations under both sections will be followed,
except as otherwise provided.
(f) Upon receipt of a valid complaint, OSHA shall notify the named
person of the filing of the complaint by providing a copy of the
complaint, sanitized to protect witness confidentiality if necessary,
and shall also notify the named person of his or her rights under 29 CFR
1978.103 (b) and (c).
Sec. 1978.103 Investigation.
(a) OSHA shall investigate and gather data concerning the case as it
deems appropriate.
(b) Within twenty days of his or her receipt of the complaint the
named person may submit to OSHA a written statement and any affidavits
or documents explaining or defending his or her position. Within the
same twenty
[[Page 197]]
days the named person may request a meeting with OSHA to present his or
her position. The meeting will be held before the issuance of any
findings or preliminary order. At the meeting the named person may be
accompanied by counsel and by any persons with information relating to
the complaint, who may make statements concerning the case. At such
meeting OSHA may present additional allegations of violations which may
have been discovered in the course of its investigation.
(c) If, on the basis of information gathered under paragraphs (a)
and (b) of this section, OSHA has reasonable cause to believe that the
named person has violated the Act and that temporary reinstatement is
warranted, prior to the issuance of findings and preliminary order as
provided for in Sec. 1978.104, OSHA shall again contact the named person
to give him or her notice of the substance of the relevant evidence
supporting the complainant's allegations as developed during the course
of the investigation. The named person shall be given the opportunity to
submit a written response, to meet with the investigators and to present
statements from rebuttal witnesses. The named person shall present this
rebuttal evidence within five days of OSHA's notification pursuant to
this subsection, or as soon thereafter as OSHA and the named person can
agree, if the interests of justice so require.
Sec. 1978.104 Issuance of findings and preliminary orders.
(a) After considering all the relevant information collected during
the investigation, the Assistant Secretary will issue, within sixty days
of the filing of the complaint, written findings as to whether there is
reasonable cause to believe that the named person or others have
discriminated against the complainant in violation of section 405 (a) or
(b). If the Assistant Secretary concludes that there is reasonable cause
to believe that a violation has occurred, he shall accompany his
findings with a preliminary order providing the relief prescribed in
section 405(c)(2)(B). Such order will include, where appropriate, a
requirement that the named person abate the violation; reinstatement of
the complainant to his or her former position, together with the
compensation (including back pay), terms, conditions and privileges of
the complainant's employment; and payment of compensatory damages. At
the complainant's request the order may also assess against the named
party the complainant's costs and expenses (including attorney's fees)
reasonably incurred in filing the complaint.
(b) The findings and the preliminary order shall be sent by
certified mail, return receipt requested, to all parties of record. The
letter accompanying the findings and order shall inform the parties of
the right to object to the findings and/or the order and shall give the
address of the Chief Administrative Law Judge. At the same time, the
Assistant Secretary shall file with the Chief Administrative Law Judge,
U.S. Department of Labor, the original complaint and a copy of the
findings and/or order.
(c) Upon the issuance of findings that there is reasonable cause to
believe that a violation has occurred, any pending section 11(c)
complaint will be suspended until the section 405 proceeding is
completed. When the section 405 proceeding is completed the Assistant
Secretary will determine what action, if any, is appropriate on the
section 11(c) complaint. If the Assistant Secretary's findings indicate
that a violation has occurred, the Assistant Secretary shall make a
separate determination as to whether section 11(c) has been violated.
Sec. 1978.105 Objections to the findings and the preliminary order.
(a) Basic procedures. Within thirty days of receipt of the findings
or preliminary order the named person or the complainant, or both, may
file objections to the findings or preliminary order providing relief or
both and request a hearing on the record. The objection and request
shall be in writing and shall state whether the objection is to the
findings or the preliminary order or both. Such objection shall also be
considered a request for a hearing.
[[Page 198]]
The date of the postmark shall be considered to be the date of filing.
Objections shall be filed with the Chief Administrative Law Judge, U.S.
Department of Labor, Washington, DC and copies of the objections shall
be mailed at the same time to the other parties of record, including the
Assistant Secretary's designee who issued the findings and order.
(b) Effective date of findings and preliminary order and failure to
object. (1) The findings and the preliminary order shall be effective
thirty days after the named person's receipt thereof, or on the
compliance date set forth in the preliminary order, whichever is later,
unless an objection to the findings or preliminary order has been timely
filed. However, the portion of any preliminary order requiring
reinstatement shall be effective immediately upon the named person's
receipt of the findings and preliminary order, regardless of any
objections thereto.
(2) If no timely objection is filed with respect to either the
findings or the preliminary order, such findings or preliminary order,
as the case may be, shall become final and not subject to judicial
review.
Litigation
Sec. 1978.106 Scope of rules; applicability of other rules; notice of
hearing.
(a) Except as otherwise noted, hearings shall be conducted in
accordance with the Rules of Practice and Procedure for Administrative
Hearings Before the Office of Administrative Law Judges promulgated at
29 CFR part 18, 48 FR 32538 (July 15, 1983), amended at 49 FR 2739
January 20, 1984. Hearings shall be conducted as hearings de novo.
(b) Upon receipt of an objection, the Chief Administrative Law Judge
shall immediately assign the case to a judge who shall, within seven
days following the receipt of the objection, notify the parties, by
certified mail, of the day, time, and place of hearing. The hearing
shall commence within 30 days of the filing of the objection, except
upon a showing of good cause or unless otherwise agreed to by the
parties.
(c) If both complainant and the named person object to the findings
and/or order, the objections shall be consolidated and a single hearing
shall be conducted. If the objections are not received simultaneously,
the hearing shall commence within 30 days of the receipt of the later
objection.
(d) At the time the hearing order issues, the judge may order the
prosecuting party to file a prehearing statement of position, which
shall briefly set forth the issues involved in the proceeding and the
remedy requested. Such prehearing statement shall be filed within three
days of the receipt of the hearing order and shall be served on all
parties by certified mail. Thereafter, within three days of receipt of
the prosecuting party's prehearing statement, the other parties to the
proceeding shall file prehearing statements of position.
Sec. 1978.107 Parties.
(a) In any case in which only the named person objects to the
findings or the preliminary order the Assistant Secretary ordinarily
shall be the prosecuting party. In such a case the complainant shall
also be a party and may engage in discovery, present evidence or
otherwise act as a party. The named person shall be the party-
respondent. If, at any time after the named person files objections, the
Assistant Secretary and complainant agree, the complainant may present
the case to the judge. Under such circumstances the case will be handled
as if it had arisen under paragraph (b) of this section.
(b) In any case in which only the complainant objects to findings
that the complaint lacks merit, to the preliminary order, or to both,
the complainant shall be the prosecuting party. The Assistant Secretary
may as of right intervene as a party at any time in proceedings under
this paragraph. The named person shall be the party-respondent.
(c) In any case in which both the complainant and the named person
object to the preliminary order the Assistant Secretary shall be the
prosecuting party. The complainant and the named person shall be the
party-respondents. In any such case, if the named person also objected
to the findings the Assistant Secretary, complainant, and named party
shall each
[[Page 199]]
have the party status, rights, and responsibilities set forth in
paragraph (a) of this section with respect to the findings.
Sec. 1978.108 Captions, titles of cases.
(a) Cases described in Sec. 1978.107(a) shall be titled:
Assistant Secretary of Labor for Occupational Safety and Health,
Prosecuting Party and (Name of Complainant), Complainant v. (Name of
named person), Respondent.
(b) Cases described in Sec. 1978.107(b) shall be titled:
(Name of complainant), Complainant v. (Name of named person),
Respondent.
(c) Cases described in Sec. 1978.107(c) shall be titled:
Assistant Secretary of Labor for Occupational Safety and Health,
Prosecuting Party v. (Name of named person), Respondent.
(Name of complainant), Complainant v. (Name of named person),
Respondent.
(d) The titles listed in paragraphs (a), (b), and (c) of this
section shall appear at the left upper portion of the initial page of
any pleading or document (other than exhibits) filed.
Sec. 1978.109 Decision and orders.
(a) Administrative Law Judge decisions. The administrative law judge
shall issue a decision within 30 days after the close of the record. The
close of the record shall occur no later than 30 days after the filing
of the objection, except upon a showing of good cause or unless
otherwise agreed to by the parties. For the purposes of the statute the
issuance of the judge's decision shall be deemed the conclusion of the
hearing. The decision shall contain appropriate findings, conclusions,
and an order pertaining to the remedy which, among other things, may
provide for reinstatement of a discharged employee and also may include
an award of the complainant's costs and expenses (including attorney's
fees) reasonably incurred in bringing and litigating the case, if the
complainant's position has prevailed. The decision shall be forwarded
immediately, together with the record, to the Secretary for review by
the Secretary or his or her designee. The decision shall be served upon
all parties to the proceeding.
(b) The administrative law judge's decision and order concerning
whether the reinstatement of a discharged employee is appropriate shall
be effective immediately upon receipt of the decision by the named
person. All other portions of the judge's order are stayed pending
review by the Secretary.
(c) Final order. (1) Within 120 days after issuance of the
administrative law judge's decision and order, the Administrative Review
Board, United States Department of Labor, shall issue a final decision
and order based on the record and the decision and order of the
administrative law judge.
(2) The parties may file with the Administrative Review Board,
United States Department of Labor, briefs in support of or in opposition
to the administrative law judge's decision and order within thirty days
of the issuance of that decision unless the Administrative Review Board,
United States Department of Labor, upon notice to the parties,
establishes a different briefing schedule.
(3) The findings of the administrative law judge with respect to
questions of fact, if supported by substantial evidence on the record
considered as a whole, shall be considered conclusive.
(4) Where the Administrative Review Board, United States Department
of Labor, determines that the named party has not violated the law, the
final order shall deny the complaint.
(5) The final decision and order of the Administrative Review Board,
United States Department of Labor, shall be served upon all parties to
the proceeding.
[53 FR 47681, Nov. 25, 1988, as amended at 61 FR 19986, May 3, 1996]
Sec. 1978.110 Judicial review.
(a) Within 60 days after the issuance of a final order under
Sec. 1978.109, any person adversely affected or aggrieved by such order
may file a petition for review of the order in the United States Court
of Appeals for the circuit in which the violation allegedly occurred or
the circuit in which the person resided on the date of the violation (49
U.S.C. 2305(d)(1)).
(b) A final order of the Administrative Review Board, United States
Department of Labor, shall not be subject
[[Page 200]]
to judicial review in any criminal or other civil proceedings (49 U.S.C.
2305(d)(2)).
(c) The record of a case, including the record of proceedings before
the administrative law judge, shall be transmitted by the Administrative
Review Board, United States Department of Labor, to the appropriate
court pursuant to the rules of such court.
[53 FR 47681, Nov. 25, 1988, as amended at 61 FR 19986, May 3, 1996]
Sec. 1978.111 Withdrawal of section 405 complaints, objections, and
findings; settlement.
(a) At any time prior to the filing of objections to the findings or
preliminary order, an employee may withdraw his or her section 405
complaint by filing a written withdrawal with the Assistant Secretary.
The Assistant Secretary shall thereafter determine whether the
withdrawal shall be approved. The Assistant Secretary shall notify the
named person of the approval of any withdrawal.
(b) The Assistant Secretary may withdraw his findings or a
preliminary order at any time before the expiration of the 30-day
objection period, provided that no objection has yet been filed, and
substitute new findings or preliminary order. The date of the receipt of
the substituted findings or order shall begin a new 30-day objection
period.
(c) At any time before the findings or order become final, a party
may withdraw his objections to the findings or order by filing a written
withdrawal with the administrative law judge or, if the case is on
review, with the Administrative Review Board, United States Department
of Labor. The judge or the Administrative Review Board, United States
Department of Labor, as the case may be, shall affirm any portion of the
findings or preliminary order with respect to which the objection was
withdrawn.
(d)(1) Investigative settlements. At anytime after the filing of a
section 405 complaint by an employee and before the finding and/or order
are objected to, or become a final order by operation of law, the case
may be settled if the Assistant Secretary, the complainant and the named
person agree to a settlement.
(2) Adjudicatory settlement. At any time after the filing of
objections to the Assistant Secretary's findings and/or order, the case
may be settled if the participating parties agree to a settlement and
such settlement is approved by the Administrative Review Board, United
States Department of Labor, or the ALJ. A copy of the settlement shall
be filed with the ALJ or the Administrative Review Board, United States
Department of Labor as the case may be.
(3) If, under paragraph (d)(1) or (2) of this section the named
person makes an offer to settle the case which the Assistant Secretary,
when acting as the prosecuting party, deems to be a fair and equitable
settlement of all matters at issue and the complainant refuses to accept
the offer, the Assistant Secretary may decline to assume the role of
prosecuting party as set forth in Sec. 1978.107(a). In such
circumstances, the Assistant Secretary shall immediately notify the
complainant that his review of the settlement offer may cause the
Assistant Secretary to decline the role of prosecuting party. After the
Assistant Secretary has reviewed the offer and when he or she has
decided to decline the role of prosecuting party, the Assistant
Secretary shall immediately notify all parties of his or her decision in
writing and, if the case is before the administrative law judge, or the
Administrative Review Board, United States Department of Labor on
review, a copy of the notice shall be sent to the appropriate official.
Upon receipt of the Assistant Secretary's notice, the parties shall
assume the roles set forth in Sec. 1978.107(b).
[53 FR 47681, Nov. 25, 1988, as amended at 61 FR 19986, May 3, 1996]
Miscellaneous Provisions
Sec. 1978.112 Arbitration or other proceedings.
(a) General. (1) An employee who files a complaint under section 405
of the Act may also pursue remedies under grievance arbitration
proceedings in collective bargaining agreements. In
[[Page 201]]
addition, the complainant may concurrently resort to other agencies for
relief, such as the National Labor Relations Board. The Secretary's
jurisdiction to entertain section 405 complaints, to investigate, and to
determine whether discrimination has occurred, is independent of the
jurisdiction of other agencies or bodies. The Secretary may proceed with
the investigation and the issuance of findings and orders regardless of
the pendency of other proceedings.
(2) However, the Secretary also recognizes the national policy
favoring voluntary resolution of disputes under procedures in collective
bargaining agreements. By the same token, due deference should be paid
to the jurisdiction of other forums established to resolve disputes
which may also be related to section 405 complaints.
(3) Where complainant is in fact pursuing remedies other than those
provided by section 405, the Secretary may, in his or her discretion,
postpone a determination of the section 405 complaint and defer to the
results of such proceedings.
(b) Postponement of determination. When a complaint is under
investigation pursuant to Sec. 1978.103, postponement of determination
would be justified where the rights asserted in other proceedings are
substantially the same as rights under section 405 and those proceedings
are not likely to violate rights guaranteed by section 405. The factual
issues in such proceedings must be substantially the same as those
raised by a section 405 complaint, and the forum hearing the matter must
have the power to determine the ultimate issue of discrimination.
(c) Deferral to outcome of other proceedings. A determination to
defer to the outcome of other proceedings initiated by a complainant
must necessarily be made on a case-by-case basis, after careful scrutiny
of all available information. Before the Assistant Secretary or the
Secretary defers to the results of other proceedings, it must be 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. In this regard, if such other actions initiated
by a complainant are dismissed without adjudicatory hearing thereof,
such dismissal will not ordinarily be regarded as determinative of the
section 405 complaint.
Sec. 1978.113 Judicial enforcement.
Whenever any person has failed to comply with a preliminary order of
reinstatement or a final order or the terms of a settlement agreement,
the Secretary may file a civil action seeking enforcement of the order
in the United States district court for the district in which the
violation was found to occur.
Sec. 1978.114 Statutory time periods.
The time requirements imposed on the Secretary by these regulations
are directory in nature. While every effort will be made to meet these
requirements, there may be instances when it is not possible to meet
these requirements. Failure to meet these requirements does not
invalidate any action by the Assistant Secretary or Secretary under
section 405.
Sec. 1978.115 Special circumstances; waiver of rules.
In special circumstances not contemplated by the provisions of these
rules, or for good cause shown, the judge or the Secretary on review
may, upon application, after three days notice to all parties and
intervenors, waive any rule or issue such orders as justice or the
administration of section 405 requires.
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