Up to this time, all of the actions of the parties in this suit, excepting, of course, Yellow Freight's failure to obey the reinstatement order issued after the preliminary investigation, were exactly as prescribed by the regulations.
Although the Secretary deferred to the outcome of the arbitration, Spinner continued to prosecute his Section 405 complaint. A hearing was held and, in July 1991, the ALJ ruled in Spinner's favor, also issuing an order of reinstatement. The ALJ issued his final decision concerning damages in January 1992 and the Secretary's final order after review of the record and the ALJ decision is pending.
Yellow Freight argues that summary judgment should be granted in its favor because all of the hearings after the Assistant Secretary's decision to defer to the outcome of the arbitration are a nullity. It contends that the Assistant Secretary's deferral was a final disposition of Spinner's complaint under Section 405 of the STAA, the statutory equivalent of the decision now awaited from the Secretary's review of the ALJ decision and order. Yellow Freight maintains that the Secretary is thus bound by this determination.
In response, the Secretary argues that the decision to defer to the outcome of an arbitration is not a final disposition of a complaint filed under Section 405 because regulations provide that the Secretary may proceed with the investigation and issuance of findings and orders regardless of the pendency of other proceedings. See 29 C.F.R. § 1978.112(a). What the Secretary suggests is that the deferral to the outcome of an arbitration is a finding that the complaint lacks merit, equivalent to the findings issued after a preliminary investigation. It is this continued prosecution that Yellow Freight contends was improper.
The underlying dispute -- whether Spinner was discharged in violation of Section 405 -- is irrelevant to the matter before us. Instead, to resolve this dispute we must concern ourselves only with the STAA and its supporting regulations and the significance of what has transpired. As the questions to be resolved are purely ones of law, summary judgment is an appropriate device. Flair Broadcasting Corp. v. Powers, 733 F. Supp. 179, 184 (S.D.N.Y. 1990); Holland Industries, Inc. v. Adamar of New Jersey, Inc., 550 F. Supp. 646, 648 (S.D.N.Y. 1982). See Longo v. United States Postal Service, 953 F.2d 790, 793 (2d Cir. 1991) (where summary judgment motions debate only the significance of undisputed facts, summary judgment is appropriate).
At the outset, we should observe that the Secretary's view has always been that the deferral to the outcome of Spinner's arbitration was not a final determination of the merits of the dispute between Spinner and Yellow Freight and that it was permissible for Spinner to continue the litigation within administrative channels. In the Notice of Determination to Defer to Outcome of Other Proceedings, see e.g., Defendant's Memorandum of Law in Opposition to Plaintiff's Motion for Temporary Restraining Order, Exh. E, the Assistant Secretary indicated that it was declining the role of prosecuting party. Spinner was instructed to assume the role of prosecuting party as set forth in Rule 107(b) and Rule 108. Rule 107(b) states that "where the complainant objects to findings that the complaint lacks merit . . . the complainant shall be the prosecuting party." 29 C.F.R. § 1978.107(b). Rule 108 dictates the appropriate caption. See id. § 1978.108.
This view of the posture that Spinner's dispute had assumed within the administrative channels of the Labor Department was echoed by ALJ Rippey who issued an order stating that "the case is in the same posture as if on that date the Assistant Secretary had determined that the complaint of Robert Spinner under the Act was without merit." Affidavit of Ronald G. Dunn (March 30, 1992), Exh. L. Spinner was given thirty days to file objections to the Notice of Deferral. Spinner filed his objections on July 9, 1990 and it was the subsequent litigation arising out of these objections that created the ALJ order the Secretary now seeks to enforce.
In addition, the Secretary's own interpretation of the role of deferral to arbitration places the deferral process within the investigation stage of proceedings within the Department.
Under this provision [29 C.F.R. § 1978.112(c)], the Assistant Secretary, at the investigative phase, may defer to the outcome of proceedings conducted in another forum, including arbitration and grievance proceedings, if those proceedings dealt adequately with all factual issues, were fair, regular and free of procedural defects and the outcome of the proceedings was not repugnant to the purpose and policy of the Act.
53 F.R. 47676-01 (November 25, 1988).
It is well accepted that the Secretary's interpretation of her own regulations is entitled to substantial deference. Udall v. Tallman, 380 U.S. 1, 16, 13 L. Ed. 2d 616, 85 S. Ct. 792 (1985); Fluor Constructors v. Occupational Safety and Health Review Commission, 861 F.2d 936, 939-40 (6th Cir. 1988). Agency interpretations are upheld when they are consistent with the purpose of the statute and have a rational basis. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bobker, 808 F.2d 930, 936 (2d Cir. 1986). Finally, the agency interpretation must be consistent with the plain language of the regulations. Capital Cities/ABC, Inc. v. Brady, 740 F. Supp. 1007, 1014 (S.D.N.Y. 1990).
We conclude that the Secretary's interpretation is reasonable in view of the plain language of the regulations for the following reasons. The litigation commenced when Yellow Freight filed its objections to the Secretary's preliminary order. At that time, Spinner and the Secretary stood on equal footing as parties. 29 C.F.R. § 1978.107(a); id. § 1978.108(a); see Aff. of Ronald Dunn, Exh. C (letter serving as the filing of objections contained caption indicating Secretary as prosecuting party and Spinner as complainant, pursuant to 29 C.F.R. § 108(a)). The fact that the Assistant Secretary chose to defer to the outcome of the arbitration in the ensuing litigation merely affects the Secretary's role as the prosecuting party because under 29 C.F.R. § 1978.107(a) Spinner was still a party to the action. Like co-plaintiffs in ordinary civil litigation, the decision by one plaintiff to withdraw from prosecuting a case do not bind the right of the other plaintiff to continue in court. The Assistant Secretary's deferral is nothing more than its election not to continue to prosecute Spinner's complaint. This interpretation is easily gleaned from the plain words of the regulations, supported by the Secretary's interpretation. Bonessa v. U.S. Steel Corp., 884 F.2d 726, 731-32 (3d Cir. 1989).
It is our view that allowing the litigation to continue was permissible. Yellow Freight's argument that the Secretary's deferral is a final determination of the case's merits would necessarily completely subsume the complainant's action in that pursued by the Secretary because the complainant would have no ability to prosecute his or her case without the assistance of the Secretary. This interpretation has no support in the regulations. For example, the employee is permitted to litigate the case in place of the Secretary. See 29 C.F.R. § 1978.107(a). Also, the complainant may file objections to a preliminary decision and order and prosecute the case on his or her own. Id. § 1978.107(b); id. § 108(b) (describing caption in case arising from objections filed by complainant as Complainant v. Respondent).
We have given careful consideration to National Labor Relations Board v. Motor Convoy, Inc., 673 F.2d 734 (4th Cir. 1982). In that case, the court ordered the NLRB to defer to the outcome of an arbitration proceeding initiated by a discharged worker under his collective bargaining agreement. The court reasoned that the NLRB had a stated policy of consistently deferring to arbitration awards and could not depart from this procedure without offering a reason. On first glance, Motor Convoy appears to support Yellow's Freight position that the Secretary is obligated to defer to the arbitration. However, further analysis reveals that Motor Convoy is not applicable to the case before us.
Under the statutory and regulatory scheme of the National Labor Relations Act which governed Motor Convoy, a complainant such as Skinner would not have the right to prosecute his or her own case in administrative proceedings. See N.L.R.B. v. United Food and Commercial Workers Union, Local 23, AFL-CIO, 484 U.S. 112, 118-19, 108 S. Ct. 413, 98 L. Ed. 2d 429 (1987). Thus, under the NLRA, the Board's decision to defer to the outcome of an arbitration would conclude all proceedings before it because no prosecuting party would remain. In contrast, under the STAA, the complainant can prosecute its complaint regardless of whether the Secretary chooses to do so. The decision by the Secretary to defer to the outcome of arbitration is unilateral, as discussed earlier, and cannot bind the complainant especially in light of the fact that regulations permit the complainant to pursue arbitration remedies in addition to Section 405 proceedings, 29 C.F.R. § 1978.112(a), instead of in place of.
More significantly, in Motor Convoy, the court invoked a test known as the "Spielberg Doctrine"
to determine whether the NLRB should be compelled to defer to arbitration. One of the elements to be satisfied before deferral to arbitration could be compelled was whether the parties agreed to be bound by the results of the arbitration.
Under the STAA, whether the complainant and the employer have agreed to be bound by the arbitration is irrelevant to the decision of the Secretary to defer to the arbitration's outcome. Compare Motor Convoy, 673 F.2d at 735 with 29 C.F.R. § 1978.112(c).
This distinction suggests that the Secretary of Labor, in making a decision to defer to arbitration proceedings, is considering only the impact on her own actions. Otherwise, under well-settled precedent
, if the Secretary were to take action that would preclude further consideration of Spinner's complaint, she would necessarily have to consider whether the arbitration was binding. See, e.g., N.L.R.B. v. Plasterer's Local Union No. 79, 404 U.S. 116, 136-37, 30 L. Ed. 2d 312, 92 S. Ct. 360 (1971); N.L.R.B. v. Designcraft Jewel Industries, Inc., 675 F.2d 493, 496 (2d Cir. 1982) (per curiam); N.L.R.B. v. South Central Bell Telephone Co., 688 F.2d 345, 350 (5th Cir. 1982), cert. denied, 460 U.S. 1081, 103 S. Ct. 1768, 76 L. Ed. 2d 342 (1983). Finally, Motor Convoy stands only for the proposition that the NLRB must defer to arbitration unless it has offered reasons why it should not do so. Although it contains dicta extolling the benefits of arbitration, we cannot derive from that any precedent for deeming the Secretary's deferral to arbitration under the STAA the final conclusion of the complaint brought by Spinner.
Yellow Freight also argues that the regulations contain language that suggests that a deferral to the outcome of an arbitration is a final determination of the merits of the case. The regulation states that if the complainant has initiated proceedings in another forum and "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." 29 C.F.R. § 1978.112(c). Yellow Freight contends that this regulation must necessarily imply the converse, namely, that if a complainant's claim was dismissed in another forum after an adjudicatory hearing, that dismissal is determinative of the section 405 complaint. Even assuming that Yellow Freight is correct, this argument begs the question of whether it was permissible for Spinner to continue litigating his claim on his own. We have already stated that the deferral to arbitration merely governs the Secretary's own action and does not create a final resolution of the complaint filed by Spinner. We do not see that this is contradicted by the language of Rule 112(c).
4. Should the order be enforced?
A review of the final order of the Secretary is properly performed only by the Court of Appeals and the final decision of the Secretary may be affirmed only upon the finding that substantial evidence in the record supported her findings. See Roadway Express v. Dole, 929 F.2d 1060, 1065; Lewis Grocer Co. v. Holloway, 874 F.2d 1008, 1011 (5th Cir. 1989). See 49 App. U.S.C. § 2305(d). Not so stringent a review occurs in an enforcement proceeding because this court may not undertake the review of the record that Congress assigned to the circuit courts.
We do not believe, however, that an order issued under the STAA should be enforced just because it exists.
Although the regulations promulgated pursuant to the STAA demand that the employer comply immediately with any order of reinstatement, see 29 C.F.R. §§ 1978.105(b), 109(b), some review by this court is necessary to protect the rights of the employer. After much consideration, we conclude that the task of this court is not to review the evidence but to simply ascertain whether the procedures followed by the Secretary in issuing the ALJ order satisfied due process. We reject the invitation of Yellow Freight to scrutinize whether the evidence before the ALJ was sufficient to determine that a violation of the STAA had occurred. That is not this court's role and we will not intrude into the jurisdiction of the Court of Appeals.
Yellow Freight has not argued that it was deprived of due process.
Indeed, though the carrier may quarrel with basis of the ALJ's decision, these are arguments better addressed to the appellate court. Instead, the record presented here makes it abundantly clear that Yellow Freight litigated this case to the fullest in front of the Administrative Law Judge before the reinstatement order was issued. Yellow Freight was given "an opportunity to present contrary testimony and evidence and to cross-examine witnesses" before imposition of an indefinite preliminary reinstatement order. Brock v. Roadway Express, 481 U.S. at 269 (Brennan, J., concurring in part and dissenting in part). Moreover, this case has not arisen out of a summary proceeding as in Brock v. Roadway Express -- due process has been more than satisfied here. Therefore, our inquiry need not continue. For our purposes, the order of reinstatement was properly issued and we conclude that it should be enforced.
Defendant's motion for summary judgment is denied.
Plaintiff's motion for summary judgment and plaintiff-intervenor's motion for summary judgment are granted. Plaintiff will submit an order to effect reinstatement of Robert Spinner as an employee of Yellow Freight, Inc. pending the issuance of the Secretary's final order and should that order be in favor of Robert Spinner, pending the outcome of any appeal by the aggrieved party to the Court of Appeals. Plaintiff's motion for a temporary restraining order and for a preliminary injunction are denied as moot.
Dated: White Plains, N.Y. May 18, 1992
GERARD L. GOETTEL