This rendering of the Preliminary Order on Remand is from a digital scan and still contains errors. Most of them are obvious, and you are welcome to email corrections to me at rrenner@igc.org. The Office of Administrative Law Judges has released their electronic version of the previous Recommended Decision and Order Granting Relief. It uses a different pagination than the hard copy. It fits a bit more text on each page to get the decision into 51 pages, instead of the 60 used in the hardcopy slip opinion. Click here to link to it. The text below was last updated on 2003-05-07 at 11:30 pm. Pages numbers from the hardcopy slip opinion are at the top of the page with a hyphen before and after the number.
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U.S. Department of Labor Office of Administrative Law Judges
Issue Date: 06 May 2003
In the Matter of
DONNA L. TRUEBLOOD,
v.
VON ROLL AMERICA, INC., d/b/a WTI or WASTE TECHNOLOGY INC.; HERITAGE ENVIRONMENTAL SERVICES, INC.
On March 26, 2003, I issued a Recommended Decision and Order ("RD & O") in the above-styled matter. Among other matters, I found jurisdiction under the Energy Reorganization Act ("ERA"), 42 U.S.C. 5851. Respondents' Petitions for Review were filed with the Administrative Review Board
("ARB") on April I, 2003. On April 17, 2003, I issued a Preliminary Order and Ruling and Order on Complainant's Motion for Discovery. On April 23 and 24, 2003, Respondents Von Roll America, Inc., and Heritage Environmental Services, respectively, filed Motions to Strike Preliminary Order Issued April 17, 2003 or, in the Alternative, Motion to Vacate Preliminary Order. On April 25 and 29, Respondents Von Roll America, Inc., and Heritage Environmental Services, respectively, sent letters to the undersigned stating they did not intend to comply with the Preliminary Order pending the ARB's action on their various motions. On April 30, 2003, the ARB remanded the matter with the direction to issue a Preliminary Order.
Under 29 C.F.R. § 24.7(c)(2), in cases brought under the ERA, the remedies set forth in the RD & O become immediately effective upon the issuance of a "preliminary order" by the Administrative Law Judge, except compensatory damages. The judge is required to issue such an order. Such a preliminary order "shall constitute" the preliminary order of the Secretary. 29 C.F.R. § 24.7(c)(2) states: "This preliminary order. . . shall be effective immediately whether or not a petition for review is filed with the Administrative Review Board." The Secretary has repeatedly made clear that the purpose of the Preliminary Order is to immediately provide relief. See e.g., Varnadore v. Oak Ridge National Laboratory, et al., 94-CAA-2 and 3 (Sept. 11, 1995, Sec'y Prelim. Order) and Zinn v. University of Minnesota, 93-ERA-34 and 36 (Sec'y June 20, 1994, Preliminary Order). In Varnadore, the Secretary
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quoted Representative Ford's comments concerning the purpose of the preliminary order: "To remedy the long delays in obtaining relief for complainants with meritorious cases. . ." (Citing 138 Congo Rec. H 11445 (daily ed. Oct. 5, 1992).
When the rules applicable to administrative proceedings before the Office of Administrative Law Judges, U.S. Department of Labor, do not address a procedural matter, we are directed to examine the Federal Rules of Civil Procedure ("FRCP"). Rule 60(b), FRCP, addresses instances where relief is sought from a judgment or order. The ARB has looked at FRCP 60(b) with some disfavor, however, it has not completely ruled out its use. See Varnadore, ARB Case No. 99-121, (Sec'y July 14,2000). It is an extraordinary remedy to be applied only in exceptional cases. Id. A motion under FRCP 60(b) does not affect the finality of a judgment or suspend its operation. By analogy, it would appear the filing of motions to either vacate or stay a preliminary order issued by the undersigned would neither affect nor suspend the operation of the preliminary order. Thus, I find neither the filing of motions nor sending letters of intent to the undersigned will serve to excuse the Respondents' failure to execute this Preliminary Order. The Respondents' effort to delay the relief awarded is lamentable.
ORDER
WHEREFORE, IT IS ORDERED THAT:
1. The Respondent, Von Roll, shall immediately reinstate the complainant to her former position, if she so desires, with the same terms, benefits, privileges, and conditions she enjoyed prior to her termination, with her leave time reinstated as set forth in the RD & O and her record of discipline expunged as set forth in the RD & O;
2. The Respondent, Von Roll, submit the amount it intends to furnish the complainant as back pay and benefits with interest, as set forth in the RD & O, and the underlying calculations and data supporting their calculation, to the undersigned by May 16, 2003;
3. The Respondent, Von Roll, submit a copy of the back pay and interest material specified above to the complainant's counsel by May 16, 2003 for his review;
4. Respondent, Von Roll, shall pay, as an initial payment of back pay, pay the Complainant five thousand dollars ($5,000.00), within ten days of the date of this Order, given that back pay will far exceed that amount; .
5. Respondent, Von Roll, shall thereafter pay five hundred dollars ($500.00) per week to the Complainant, as back pay, until such time that the amount determined under paragraph 6 below, or as otherwise determined by the undersigned, is reached;
6. In the event the parties cannot agree on the amount of the back pay and interest specified above, the Complainant's counsel may submit objections to the above calculations and amounts to the undersigned by May 23,2003; In the event the parties cannot agree on the amount of the back pay and interest specified above, Respondent, Von Roll, shall pay, as a secondary payment, the minimum amount to which
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the complainant does agree to, on or before May 30, 2003, and the undersigned will resolve issues as to any remaining disputed amount;
7. The complainant's counsel submit a documented fee petition to the Respondents within twenty- five (25) calendar days of the date of this Order for their review;
8. The Respondent, Yon Roll, make every effort to reach an agreement with the complainant as to the proper amount of back pay and benefits with interest prior to submitting the calculations to the undersigned;
9. Both Respondents shall make every effort to reach an agreement with the complainant as to the proper amount of attorney fees and expenses prior to submitting objections to said fee petition;
10. Both Respondents submit their objections, if any, to the complainant's fee petition by June 4, 2003;
11. The complainant's counsel submit a response, if necessary, to the Respondents' fee petition objections by June 11, 2003;
12. Both Respondents shall immediately and prominently post notices (in at least 12-point font with a bold heading) at all their facilities, in the United States, as specified in the RD & O;
13. Both Respondents shall, upon receipt of this Order, prominently post notices (in at least 12- point font with a bold heading), as specified in the RD & O, at their facilities, in the United States, along with a copy of the RD & O.
14. Both Respondents shall, within 10 calendar days of this Order, inform the undersigned how they are complying with the Order to prominently post notices (in at least 12-point font with a bold heading) at their facilities, in the United States, along with a copy of the RD & O. The Respondents shall specify whether the required notices are obscured in any manner;
15. The Respondents shall submit, within thirty calendar days of the date of this Order, a plan showing how they do or will train their managers and supervisory personnel, at their East Liverpool, Ohio, facilities, on the laws and regulations governing employee reporting of possible or actual violations of federal environmental laws or regulations and concerning whistleblower protections of those laws and regulations; and,
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16. The Respondents immediately execute the terms of this Preliminary Order notwithstanding the filing of any appeal, motion to vacate, or motion to stay, this Order. This Preliminary Order remains in effect until such time that the ARB or federal court order otherwise.
RICHARD A. MORGAN
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ARB NOS. 03-082 and 03-083
CASE NO.: 2002-WPC-3, 4, 5 & 6; 2003-WPC-1
Complainant
Respondents
PRELIMINARY ORDER ON REMAND
Administrative Law Judge