The opinion of the court was delivered by: WEXLER
In this action plaintiff, the Secretary of Labor, contends that one Thomas Dugan was discharged by the defendants because Mr. Dugan complained to his union of certain alleged violations of the Occupational Safety and Health Act of 1970 ("OSHA"), 29 U.S.C. Section 651 et seq., and that said discharge violated Section 11(c)(1) of the Act, 29 U.S.C. Section 660(c)(1).
Defendants have moved for summary judgment.
On January 25, 1980, defendant Diplomat Envelope, acting through its Vice-President, defendant Krassner, discharged Mr. Dugan. Defendants contend that Mr. Dugan was discharged because he had twice walked off the job without proper explanation, excuse or permission. Plaintiff contends that Mr. Dugan was discharged because Mr. Dugan on January 25, 1980, complained to his union of certain alleged OSHA violations.
Plaintiff contends that on January 29, 1980 Mr. Dugan telephoned the Department of Labor and complained that he had been discharged because he had reported OSHA violations.In any case, on March 3, 1980, the Department of Labor issued a letter to defendant Diplomat Envelope stating that Mr. Dugan had filed a complaint. Defendants, however, contend that no formal written complaint was filed until March 4, 1980. It should be noted that under 29 U.S.C. Section 660(c)(2) "[a]ny employee who believes that he has been discharged or otherwise discriminated against by any person in violation of this subsection may, within thirty days after such violation occurs, file a complaint with the Secretary [of Labor] alleging such discrimination." Plaintiff Secretary of Labor commenced the instant action in May 1981.
The firing of Mr. Dugan has given rise to a number of proceedings besides the instant action.
Mr. Dugan sought unemployment compensation. On July 10, 1980, following three hearings, the first of which Diplomat's counsel was unable to attend and unsuccessfully sought to have adjourned, Edward Doberman of the New York State Department of Labor, Unemployment Insurance Administrative Law Judge Section, issued an opinion stating: "claimant was discharged for walking off the job without proper explanation, excuse or permission on two occasions, after having been warned concerning such action following the first such occasion." The ALJ therefore concluded that Mr. Dugan was not entitled to unemployment compensation, and ordered Mr. Dugan to repay $712.00 in benefits he had already received (Mr. Dugan has apparently not complied). The ALJ further stated: "[t]he evidence showed that claimant had not yet been discharged when a vice president of the employer spoke to his union representative. In that conversation, in addition to discussion of claimant's early departures, the union representative repeated claimant's complaint, made to the union representative, about an allegedly faulty gas heater and its consequences. In irritation after being told of that complaint, the employer's vice president made up his mind to discharge claimant. Under these circumstances, claimant could believe that he was actually discharged because of his complaint, even though the vice president may have stated to him that he was discharged for walking off the job." The ALJ therefore concluded that Mr. Dugan had not committed a wilful misrepresentation subject to penalty when he informed the unemployment insurance office that "I complained to the union about a faulty gas heater's fumes and was fired." On November 13, 1980, the New York Unemployment Compensation Appeals Board affirmed the ALJ's decision and adopted his opinion and findings of fact as its own. Mr. Dugan then appealed. On June 18, 1981, the Appellate Division of the New York Supreme Court (Third Department) affirmed the Board's decision.
Shortly after Mr. Dugan was discharged, his union sought arbitration on his behalf. On April 22, 1980, Diplomat, a defendant in the instant action, commenced an action in state court against the union, seeking among other things to prevent arbitration. On or about May 5, 1980, the union filed charges against Diplomat with the National Labor Relations Board, charging unfair labor practices, including refusal to arbitrate. On May 7, 1980, the union removed Diplomat's state court action to the U.S. District court for the Southern District of New York. On May 11, 1981, the Southern District stayed the action in that court pending a decision by the National Labor Relations Board. On March 4, 1982, an Administrative Law Judge of the National Labor Relations Board ordered Diplomat to arbitrate the discharge of Dugan. An appeal by Diplomat from that order is still pending.
Defendants' first ground for summary judgment is that the finding of the state Unemployment Insurance Administrative Law Judge (affirmed by the Appellate Division) that Mr. Dugan was discharged for walking off the job, has res judicata or collateral estoppel effect in the instant action.
Plaintiff Secretary of Labor argues that he is not bound by the state proceedings becuae he was not a party thereto. However, the real party in interest in the instant action is Mr. Dugan. Although the Secretary's ultimate aim in commencing the instant action is not so much to benefit Mr. Dugan personally as to create an atmosphere in which employees in general feel safe in making complaints regarding alleged OSHA violations, the Secretary in the instant action seeks to further this ultimate aim solely through the means of benefiting Mr. Dugan personally. Consequently, it is wholly equitable that the Secretary should be bound by any decision binding upon Mr. Dugan.
B. EXISTENCE OF PRECLUSION
We find that Mr. Dugan himself (and hence the plaintiff Secretary) is bound by the ALJ's finding (affirmed by the Appellate Division) that Mr. Dugan was discharged for walking off the job without excuse. In Kremer v. Chemical Const. Corp., 456 U.S. 461, 102 S. Ct. 1883, 72 L. Ed. 2d 262 (1982), the Supreme Court held that where a state administrative agency summarily dismisses as meritless a claim for ethnic discrimination in employment, and the agency's ruling is affirmed on appeal by a state court, a federal action based on the same claim is barred. Although Kremer dealt with ethnic discrimination, there is no reason why more deference should be paid to state proceedings regarding ethnic discrimination than to other state proceedings. Although in Kremer the state administrative agency did not make any findings of fact, the Supreme Court specifically stated that "[t]here is no requirement that judicial review must proceed de novo if it is to be preclusive." 102 S. Ct. at 1897 n.21. The Court thus acknowledged that if a state administrative agency makes findings of fact which are affirmed on appeal by a state court, the ...