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May 18, 1992

LYNN MARTIN, Secretary of Labor, United States Department of Labor, Plaintiff,


The opinion of the court was delivered by: GERARD L. GOETTEL


 Robert Spinner was employed by Yellow Freight System, Inc. as a truck driver. The facts stated here have been drawn from the decision of Administrative Law Judge Rippey in In the Matter of Robert C. Spinner v. Yellow Freight System, Inc., No. 90-STA-0017 (July 16, 1991). On October 3, 1989, at 5:00 a.m., he was assigned to drive a tractor-trailer from Cleveland, Ohio to Maybrook, New York. The trailer had been driven from Chicago to Cleveland by another driver. The paperwork given to Spinner by the dispatcher indicated he was to drive tractor number 4805. When Spinner went to the tractor, he observed that its number was 4804, not 4805. Under Federal Highway Administration regulations, a driver vehicle inspection report, known as an "OD-199", must be completed by the actual driver at the end of each work day and a copy must be carried on the tractor driven. The next driver is required to review the report before driving the tractor in order to assure himself that any defects noted by the previous drive had been corrected. The OD-199 found inside the tractor assigned to Spinner also carried the number 4805. Spinner could have verified that the OD-199 he found actually referred to tractor number 4804 but when he went to obtain that information, *fn1" his request was denied. He also requested that the tractor be inspected by a mechanic. That request, too, was denied. Spinner investigated further and the results could have persuaded him that the OD-199 in his truck, purportedly for number 4805, actually referred to the tractor he was assigned to drive although there was no hard evidence to support that view. Despite what the real facts may have been, Spinner still needed a correct OD-199 for number 4804. Spinner was asked to change the number on the OD-199 and proceed with his assignment. No one from Yellow Freight offered to make the change and take responsibility for that act. While under these circumstances obviously just a technical violation, requiring Spinner to drive number 4804 with an OD-199 for number 4805 was nevertheless a violation of the Federal Motor Carrier Safety Regulations. Spinner refused to drive the tractor and he was discharged. *fn2" The next day he filed a grievance pursuant to the collective bargaining agreement executed by Yellow Freight and Local 707 of the International Brotherhood of Teamsters. On October 5, 1989, he filed a complaint with the Department of Labor with three separate allegations: that he was retaliated against for filing a safety complaint, that he was fired for refusing to drive a tractor when to do so would violate a federal regulation and for refusing to drive when he believed his safety would be jeopardized.

 After an investigation, on December 15, 1989, the Regional Administrator for the Occupational Safety and Health Administration, acting under a delegation of authority from the Secretary of Labor, ordered Spinner's reinstatement pursuant to the § 2305(b) of the Surface Transportation Assistance Act, 49 App. U.S.C. § 2301 et seq ("STAA"), finding that there was probable cause to believe that Spinner had been fired for refusing to drive a vehicle in violation of safety regulations.

 Yellow Freight filed objections and supplemental objections to the Administrator's findings in January 1990. Among their contentions was the argument that the Administrator should have waited to issue the preliminary order until resolution of Spinner's union grievance. The matter was assigned to an administrative law judge for a hearing and determination which was scheduled for August 1990. In April 1990, the Department of Labor moved to postpone the ALJ's determination while the union grievance arbitration was pending. This motion was granted and on May 31, 1990, the arbitration decision was rendered in favor of Yellow Freight.

 The Arbitrator found that Spinner was required to pre-trip, i.e. perform a quick safety inspection, his vehicle. The facts found in the arbitration were not inconsistent with those later found by the ALJ *fn3" but the arbitrator believed that Spinner did not have a good faith doubt as to the safety of his vehicle. The Arbitrator concluded that Spinner "was not asked or directed to violate Local, State or Federal law, pertaining to Highway safety." Defendant's Memorandum of Law in Opposition to Plaintiff's Motion for Temporary Restraining Order, Exh. C, at 7. Instead, he concluded that Spinner, by refusing to pre-trip the tractor and proceed with his assignment, had voluntarily chosen to resign, rather than be told what to do, or to follow orders. The Arbitration decision was upheld in the New York state courts on September 5, 1990 although it appears that the confirmation was not on the merits but occurred as a result of a default taken because Spinner did not enter an appearance.

 On June 28, 1990, the Assistant Secretary of Labor for OSHA *fn4" issued a Notice of Determination to Defer to Outcome of Other Proceedings. Spinner did not withdraw his complaint within the Department of Labor and as he was not granted relief by the arbitration, he was permitted to become the prosecuting party.

 Motions pertaining to the hearing were then filed. The scope of the hearing before the ALJ was limited to matters deciding issues under Section 405(b) (prohibition against discharge for discrimination for refusal to operate vehicle in violation of federal regulation) as the Secretary had not yet made preliminary findings on the merit of Spinner's claim pursuant to Section 405(a) that he was discharged in retaliation for filing complaints about Yellow Freight safety. In October 1990, Spinner was notified that the Regional Administrator found no merit to the Section 405(a) claim.

 Spinner then appealed the Section 405(a) claim which was assigned to ALJ Rippey and the appeal was consolidated with the Section 405(b) claim. More motions followed. On July 16, 1991, ALJ Rippey issued a decision which found that Spinner was fired in violation of both Sections 405(a) and 405(b) of the STAA. Spinner's reinstatement was ordered. Further proceedings were held to determine the amount of backpay owed to Spinner and a decision on that matter was rendered on January 17, 1992. The Secretary of Labor has 120 days to make that decision final. *fn5"

 On December 12, 1991, the Secretary of Labor filed a complaint in this court seeking to enforce Judge Rippey's July 16th order of reinstatement. Robert Spinner immediately moved to intervene and that motion was granted. A hearing on the propriety of a temporary restraining order and preliminary injunction was held and decision reserved. Yellow Freight, strongly objecting to Spinner's intervention, moved to reargue. In March 20, 1992, cross-motions for summary judgment were argued. This opinion addresses all of the outstanding motions in this very complex case which raises many issues of first impression.


 The Motion to Reargue

 Yellow Freight System, Inc. moves to reargue our memorandum decision of January 13, 1992 which permitted Robert Spinner to intervene in this enforcement action brought by the Secretary of Labor. This motion is denied.

 First, Rule 3(j) of the Civil Rules for the United States District Courts for the Southern and Eastern District of New York requires a notice of motion for reargument to be served within ten days after the docketing of the determination. The challenged memorandum decision was docketed on January 15, 1992. Yellow Freight served its memorandum of law on January 27, 1992 and its notice of motion on January 28, 1992. Thus, the motion is untimely.

 Moreover, even had the motion been timely, defendant still has not shown that we overlooked controlling decisions concerning the right of parties to intervene in the enforcement of an interim order. *fn6"

 The right of a party to intervene in an enforcement proceeding brought under the STAA, 49 App. U.S.C. § 2305(e), has never been addressed by any court as far as our research shows. In reaching our conclusion that permissive intervention by Spinner was appropriate in this case, we relied on International Union, United Auto., Aerospace and Agr. Implement Workers of America v. Scofield, 382 U.S. 205, 15 L. Ed. 2d 272, 86 S. Ct. 373 (1965), for the proposition that a successful party in administrative proceedings has the right to intervene in proceedings which review or enforce administrative orders even if the person has no private right of enforcement. We reasoned that because Spinner prevailed in the administrative proceedings conducted by the Department of Labor, he was entitled to intervene in these proceedings.

 In support of its position, Yellow Freight points to Solien v. Miscellaneous Drivers & Helpers Union, 440 F.2d 124 (8th Cir.), cert. denied sub nom., Sears Roebuck and Co. v. Solien, 403 U.S. 905, 29 L. Ed. 2d 680, 91 S. Ct. 2206 (1971). Solien was a petition for injunctive relief brought by the National Labor Relations Board ("NLRB") pursuant to § 10(1) of the National Labor Relations Act, 29 U.S.C. § 160(1). Under this statute, if a preliminary investigation by the NLRB shows that an unfair labor practice has occurred, the Board is permitted to petition the district court for preliminary relief. The Solien court held that a charging party had no right to intervene in these proceedings, reasoning that there was no risk of multiple appeals since § 10(1) did not give an aggrieved person the right to appeal if he is denied injunctive relief. Id. at 131. That court opined that the Scofield decision turned upon the policy of avoiding multiple appeals. Yellow Freight argues that Spinner, if he receives an adverse final ruling from the Secretary, has the right to appeal that decision.

 We do not believe that Solien should control the outcome of this decision. First of all, as the Scofield court noted, the statutory structure of the Act in question must be examined in order to resolve the question of whether intervention is appropriate. 382 U.S. at 210. In doing so, we note that the statutory structure of the NLRA is very different from the STAA. Under the STAA, the Secretary of Labor may issue an order for reinstatement without seeking an injunction from the district court as required by the NLRA. Thus, the Secretary goes to court to enforce its own order of equitable relief, rather than seeking an injunction from the court. Moreover, the STAA is silent regarding the role of the charging party. Statutory silence in the NLRA was precisely what the Scofield court took to mean that there was no bar to intervention by the party. In contrast, the role of the charging party in the NLRA injunction proceedings brought in Solien is clearly defined and limited by the statute to receiving notice, appearing by counsel and presenting relevant testimony. 29 U.S.C. § 160(1); see Hirsch v. Building & Const. Trade Council, 530 F.2d 298, 307 (3d Cir. 1976).

 Second, we do not agree with the Solien court's view that concern about multiple appeals was the single controlling factor in Scofield. The Scofield court was also concerned about fairness to the proposed intervenor. Significantly, enforcement proceedings brought by the Secretary under § 2305(e) vindicate private interests rather than public interests as under § 10(1). The Secretary's order concerns the reinstatement of one individual. Indeed, the purpose of the Secretary's orders under § 2305(c)(2) is to protect "whistleblowers" from suffering devastating financial consequences as a result of a retaliatory discharge. Brock v. Roadway Express, Inc., 481 U.S. 252, 258-59, 95 L. Ed. 2d 239, 107 S. Ct. 1740 (1987) (plurality opinion); accord id. at 272 (White, J., concurring in part and dissenting in part). In contrast, the injunction provisions of the NLRA are designed to protect ...

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