Procedures for the Handling of Discrimination Complaints under Section 519 of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century

Part VI

Department of Labor

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Occupational Safety and Health Administration

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29 CFR Part 1979

Procedures for the Handling of Discrimination Complaints Under Section

519 of the Wendell H. Ford Aviation Investment and Reform Act for the

21st Century; Final Rule

Federal Register&thnsp;/&thnsp;Vol. 68, No. 55&thnsp;/&thnsp;Friday,

March 21, 2003&thnsp;/&thnsp;Rules and Regulations

[[Page 14100]]

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1979

RIN 1218–AB99

Procedures for the Handling of Discrimination Complaints under

Section 519 of the Wendell H. Ford Aviation Investment and Reform Act

for the 21st Century

AGENCY: Occupational Safety and Health Administration, Labor.

ACTION: Final rule.

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SUMMARY: This document provides the final text of regulations governing

the employee protection (“whistleblower”) provisions of

Section 519 of the Wendell H. Ford Aviation Investment and Reform Act

for the 21st Century (“AIR21”), a Federal Aviation

Administration reauthorization bill, enacted into law April 5, 2000.

This rule establishes procedures and time frames for the handling of

complaints under AIR21, including procedures and time frames for

employee complaints to the Occupational Safety and Health

Administration (“OSHA”), investigations by OSHA, appeals of

OSHA determinations to an administrative law judge (“ALJ”)

for a hearing de novo, hearings by ALJs, appeal of ALJ decisions to the

Administrative Review Board (acting on behalf of the Secretary) and

judicial review of the Secretary's final decision.

On April 1, 2002, OSHA published an interim final rule (67 FR

15454) which provided for rules of procedure and time frames to

implement Section 519 of AIR21. At that time the agency requested

comments concerning the interim final rules, and in response several

comments were received from interested parties. OSHA has reviewed the

comments and now adopts this final rule which has been revised in part

to address problems perceived by the agency and the commenters.

DATES: This final rule is effective on March 21, 2003.

FOR FURTHER INFORMATION CONTACT: John Spear, Director, Office of

Investigative Assistance, Occupational Safety and Health

Administration, U.S. Department of Labor, Room N–3603, 200

Constitution Avenue, NW., Washington, DC 20210; telephone (202)

693–2199.

SUPPLEMENTARY INFORMATION:

I. Background

The Wendell H. Ford Aviation Investment and Reform Act for the 21st

Century (“AIR21”), Public Law 106–181, was enacted on

April 5, 2000. Section 519 of the Act, codified at 49 U.S.C. 42121,

provides protection to employees against retaliation by air carriers,

their contractors and their subcontractors, because they provided

information to the employer or the Federal Government relating to air

carrier safety violations, or filed, testified, or assisted in a

proceeding against the employer relating to any violation or alleged

violation of any order, regulation, or standard of the Federal Aviation

Administration (“FAA”) or any other law relating to the

safety of air carriers, or because they are about to take any of these

actions. These rules establish procedures for the handling of

complaints under AIR21.

II. Summary of Statutory Provisions

The AIR21 whistleblower provisions include procedures which allow a

covered employee to file, within 90 days of the alleged discrimination,

a complaint with the Secretary of Labor (“the

Secretary”).\1\ Upon receipt of the complaint, the Secretary must

provide written notice to both the person named in the complaint who is

alleged to have violated the Act (“the named person”) and

the FAA of: The allegations contained in the complaint, the substance

of the evidence submitted with the complaint, and the rights of the

named person throughout the investigation. The Secretary must then,

within 60 days of receipt of the complaint, afford the named person an

opportunity to submit a response and meet with the investigator to

present statements from witnesses, and conduct an investigation.

However, the Secretary may conduct an investigation only if the

complainant has made a prima facie showing that the alleged

discriminatory behavior was a contributing factor in the unfavorable

personnel action alleged in the complaint and the named person has not

demonstrated, through clear and convincing evidence, that the employer

would have taken the same unfavorable personnel action in the absence

of that behavior. This provision is similar to the 1992 amendments to

the ERA, codified at 42 U.S.C. 5851.

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\1\&thnsp;Responsibility for receiving and investigating these

complaints has been delegated to the Assistant Secretary for OSHA.

Secretary's Order 5–2002 (67 FR 65008, October 22, 2002);

Secretary's Order 1–2002 (67 FR 64272, October 17, 2002).

Hearings on determinations by the Assistant Secretary are conducted

by the Office of Administrative Law Judges, and appeals from

decisions by administrative law judges are decided by the

Administrative Review Board. See Secretary's Order 1–2002.

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After investigating a complaint, the Secretary shall issue a

determination letter. If, as a result of the investigation, the

Secretary finds there is reasonable cause to believe that

discriminatory behavior has occurred, the Secretary must notify the

named person of those findings along with a preliminary order which

requires the named person to: Abate the violation, reinstate the

complainant to his or her former position and provide make-whole relief

and compensatory damages to the complainant, as well as costs and

attorney's and expert fees reasonably incurred. The complainant and the

named person then have 30 days after the date of the Secretary's

notification in which to file objections to the findings and/or

preliminary order and request a hearing on the record. The filing of

objections under AIR21 shall stay any remedy in the preliminary order

except for preliminary reinstatement. This provision for preliminary

reinstatement after the investigation is similar to the employee

protection provision of STAA, 49 U.S.C. 31105. If a hearing before an

administrative law judge is not requested within 30 days, the

preliminary order becomes final and is not subject to judicial review.

If a hearing is held, AIR21 requires the hearing to be conducted

“expeditiously.” The Secretary then has 120 days after the

“conclusion of a hearing” in which to issue a final order,

which may provide appropriate relief or deny the complaint. Until the

Secretary's final order is issued, the Secretary, complainant and the

named person may enter into a settlement agreement which terminates the

proceeding. The Secretary shall assess against the named person, on the

complainant's request, a sum equal to the total amount of all costs and

expenses, including attorney's and expert witness fees, reasonably

incurred by the complainant in bringing the complaint to the Secretary

or in connection with participating in the proceeding which resulted in

the order on behalf of the complainant. The Secretary also may award a

prevailing employer an attorney's fee, not exceeding $1,000, if he or

she finds that the complaint is or has been brought in bad faith.

Within 60 days of the issuance of the final order, any person adversely

affected or aggrieved by the Secretary's final order may file an appeal

with the United States Court of Appeals for the circuit in which the

violation occurred or the circuit where the complainant resided on the

date of the violation. Finally, AIR21 makes persons who violate these

newly created whistleblower provisions subject to a

[[Page 14101]]

civil penalty of up to $1,000. This provision is administered by the

FAA.

III. Summary of Regulations and Rulemaking Proceedings

On April 1, 2002, the Occupational Safety and Health Administration

published in the Federal Register an interim final rule promulgating

rules which implemented Section 519 of the Wendell H. Ford Aviation

Investment and Reform Act for the 21st Century, Public Law

106–181, 67 FR 15454—15461. In addition to promulgating the

interim final rule, OSHA's notice included a request for public comment

on the interim rules by May 31, 2002. On May 29, 2002, OSHA received a

request from the Association of Flight Attendants requesting a 30-day

extension of the comment period, and on June 13, 2002, OSHA published a

notice in the Federal Register extending the comment period to June 30,

2002, 67 FR 40597.

In response, six organizations filed comments with the agency.

Comments were received from the Association of Flight Attendants (AFA);

the Air Line Pilots Association (ALPA); the Transportation Trades

Department, AFL–CIO (TTD); the Air Transport Association (ATA);

the American Federation of Labor and Congress of Industrial

Organizations (AFL–CIO); and the National Whistleblower Legal

Defense and Education Fund on behalf of the National Whistleblower

Center (NWC). Senator Charles Grassley of Iowa also submitted comments.

OSHA has reviewed the comments and, in response, has developed a

final rule which makes some changes in the interim final rule. Other

changes urged by commenters were considered but rejected. OSHA

addresses the comments in the discussion that follows. The comments and

OSHA's response are discussed in the order of the provisions of the

rule.

General Comments

OSHA received four comments of a general nature relating to the

regulations. The AFL–CIO questioned whether the interim

procedures related to filing of complaints, processing of

investigations and conduct of administrative reviews satisfy the

following four requirements which, in its opinion, are needed to meet

the intent of Congress:

(1) Whistleblowers must have control of their legal cases through

an Individual Right of Action;

(2) The investigating and prosecuting authority must not have

discretionary authority that may be abused to undermine the legal

interests of complainants;

(3) Loopholes that allow illegal employer conduct or circumscribe

the protected acts of complainants must be eliminated; and

(4) Legal burdens of proof for whistleblowers must be realistic.

OSHA believes that, as a general matter, the interim rules provide for

administrative and judicial review procedures and burdens of proof

required by AIR21 and fully satisfy the spirit and intent of Congress

to provide whistleblower protection to aviation workers, thus helping

to increase the safety of the aviation industry and the traveling

public.

The NWC suggested that OSHA posters be amended to inform employees

of all the whistleblower laws administered by OSHA; or, in the

alternative, OSHA should make posters regarding employee rights under

all the whistleblower laws widely available free of charge to the

regulated community and encourage employers to comply with the law and

voluntarily post notice of the law. OSHA believes that posters and

other means or informing employers and employees of their rights and

responsibilities under the various whistleblower statutes are vital to

achieving the goals of the statutes, although AIR21 does not authorize

OSHA to require employers to post notice of the law. However, the FAA

has developed and distributed posters and other informational materials

to airport authorities, employers and employee groups around the

country.

The ATA submitted three general comments regarding the nature of

the relationship between OSHA and the FAA. The ATA suggested that the

rules be modified to provide that (1) the FAA has complete and

exclusive jurisdiction over air carrier safety issues, (2) when OSHA

receives an AIR21 discrimination complaint, the FAA must first make a

threshold determination as to whether the underlying safety issues

raised by the complaint relate to a violation, and (3) throughout any

investigation by OSHA, the FAA retains exclusive authority to determine

any air carrier safety issues underlying or related to the

discrimination complaint. With respect to the first and third comments,

OSHA agrees that the FAA has authority over air carrier safety issues

as defined by statute. OSHA does not agree, however, that AIR21

provides that it is the FAA's responsibility to first make a threshold

determination as to whether the underlying safety issues raised by the

complainant relates to an air carrier safety violation. That initial,

threshold determination of whether the complainant engaged in

activities protected by the law is common to all the various

whistleblower statutes and is made by OSHA in the regular course of

determining a prima facie showing that protected conduct was a

contributing factor in the alleged unfavorable personnel action.

Section 1979.100 Purpose and Scope

This section describes the purpose of the regulations implementing

AIR21 and provides an overview of the procedures covered by these new

regulations. No comments were received relating to this section.

Section 1979.101 Definitions

In addition to the general definitions, the regulations include

program-specific definitions of “air carrier” and

“contractor.” The statutory definition of “air

carrier” applicable to AIR21 is found at 49 U.S.C. 40102(a)(2), a

general definitional provision applicable to air commerce and safety.

The statutory definition of “contractor” is found in AIR21

at 49 U.S.C. 42121(e).

Four comments were received regarding the definitions contained in

§&thnsp;1979.101. The NWC proposed that the term “air

carrier” include those carriers owned by foreign persons, stating

that it would be inconsistent with safety and national security to

exclude from protection whistleblowers who uncovered and disclosed

problems related to air carriers which may happen to be owned or

controlled by foreign corporations or persons. AIR21 is contained in

Title 49, Subtitle VII, Part A, of the United States Code. While AIR21

contains a definition of “contractor,” it does not contain

a definition of “air carrier” and so the general

definitions applicable to Part A contained in Subpart 1 apply. The

terms “air carrier” and “foreign air carrier”

are separately defined by statute at 49 U.S.C. 40102(a)(2) (“air

carrier”) and 49 U.S.C. 40102(a)(21) (“foreign air

carrier”), and the general definition of air carrier is set forth

in the AIR21 rule. OSHA has no authority to define the terms otherwise.

The NWC also stated that the definition of the term

“contractor” should be further explained to ensure that the

definition include all contractors which perform, directly or

indirectly, any function whatsoever which may have safety implications,

and that safety-sensitive functions specifically include security

related activities. The NWC suggested that the definition of

“safety-sensitive” should include persons who work for

[[Page 14102]]

contractors who are in a position to witness and or identify the

misconduct of other employees or contractors as opposed to reporting

only on the employee's own employer. OSHA agrees that “safety-

sensitive functions” include security-related activities, but

believes that the definition as written is adequate.

The AFA commented that the terms “contractors,

subcontractors, or agents or air carriers” be added to the

definition of “person.” The term “person” is

included in the definitions because it is used variously in the statute

to mean both organizations and individuals. The definition describes

what type of legal entities may be included in the term

“person.”

Section 1979.102 Obligations and Prohibited Acts

This section describes the whistleblower activity which is

protected under the Act and the type of conduct which is prohibited in

response to any protected activity.

The NWC commented that §&thnsp;1979.102(b) should explicitly

include reports of security violations or reports of security

weaknesses made to the employer or a law enforcement agency in the

definition of protected activity. OSHA believes that the regulation

appropriately sets forth the statutory definition of protected

activity, which includes providing “information relating to any

violation or alleged violation of any order, regulation, or standard of

the Federal Aviation Administration or any other provision of Federal

law relating to air carrier safety under this subtitle or any other law

of the United States.” Therefore, OSHA does not believe that the

additional language requested is necessary.

The AFA suggested that the words “actively or

passively” be added to §&thnsp;1979.102(b) to clarify that

all forms of discrimination, whether active or passive, are violations

of the Act. The AFA also recommended that the words “actual or

constructive” be added before the word “knowledge” in

§&thnsp;1979.102(b)(1) and (2) to prevent an employer from making

a “don't want to know” plausible deniability argument to

escape accountability for violating the Act. OSHA considers that

extensive case law exists involving analogous language in other

employee protection statutes. Therefore, OSHA anticipates that similar

interpretations would be applied under AIR21.

The NWC recommended that §&thnsp;1979.102(c) be further

defined, in order to prevent a chilling effect on employee disclosures,

by stating that the term “deliberate” does not apply to

unintentional conduct. There is case law involving analogous provisions

of other employee protection statutes defining the phrase

“deliberate violations” for purposes of denying protection

to an employee who causes a violation of applicable safety laws. See,

e.g., Fields v. United States Department of Labor Administrative Review

Board, 173 F.3d 811, 814 (11th Cir. 1999) (“petitioners moved

knowingly and dangerously beyond their authority when, on their own,

and fully aware that their employer would not approve, they conducted

experiments inherently fraught with danger”). We anticipate that

a similar construction of that term would be applied under AIR21.

Section 1979.103 Filing of Discrimination Complaint

This section explains the requirements for filing a discrimination

complaint. Under AIR21, to be timely a complaint must be filed within

90 days of the alleged violation. Under Delaware State College v.

Ricks, 449 U.S. 250, 258 (1980), this date is considered to be when the

discriminatory decision has been both made and communicated to the

complainant. In other words, the limitations period commences once the

employee is aware or reasonably should be aware of the employer's

decision. Equal Employment Opportunity Commission v. United Parcel

Service, 249 F.3d 557, 561–62 (6th Cir. 2001). Under

§&thnsp;1979.103(a), complaints may be made by any person on the

employee's behalf with the consent of the employee.

Section 1979.103(b) of the interim rule permitted complaints to be

made both in writing and orally. The rule has been changed to require

that complaints be made in writing, which shall include a full

statement of the acts and omissions alleged to constitute the

violation, in accordance with the procedures for filing whistleblower

complaints under several other employee protection provisions for which

the Secretary of Labor has delegated the responsibility for enforcement

to OSHA. Complaints still do not need to be made in accordance with any

particular form. However, because of difficulty encountered in the

processing of oral complaints, OSHA has determined that the process for

filing full complaints in writing codified at 29 CFR 24.3(c) should

apply to whistleblower complaints filed under AIR21.

The AFA commented that §&thnsp;1979.103(c) should be changed

to include the Federal Aviation Administration as a place where

complaints may be sent because the FAA website advised that

whistleblower complaints may be filed with the FAA. Similarly, the NWC

proposed that §&thnsp;1979.103.(c), (d) and (e) should make clear

that whistleblower complaints filed with other agencies should be

deemed timely filed, particularly when the underlying safety concern

was originally directed to the other agency. The NWC also commented

that an internal whistleblower complaint to the employer should also

act to toll the AIR21 statute of limitations. OSHA wants to make clear

in the regulations that claims should preferably be filed with OSHA.

However, as noted in OSHA's Whistleblower Investigations Manual (OSHA

Instruction DIS 0–0.8), it is OSHA's policy, as supported by case

law, that complaints timely filed by mistake with the FAA or other

agency not having the authority to grant relief to the whistleblower

may be considered timely filed with OSHA. The reference to filing with

“any Department of Labor officer or employee” has been

changed to “any OSHA officer or employee” to make the rule

consistent with other whistleblower rules administered by OSHA.

The ATA commented that §&thnsp;1979.103(e) should be deleted

in its entirety because OSHA states no legal authority for the

provision, individuals may intentionally file under one statute and not

the other, and the section is vague because it does not make clear

which statutory process OSHA will follow. The purpose of

§&thnsp;1979.103(e) is to make clear to the regulated community

that OSHA reserves the right to investigate any whistleblower claim

that properly falls under OSHA's purview. Section 11(c) of the

Occupational Safety and Health Act (“OSH Act”) provides

employment protection for employees who exercise certain rights under

the OSH Act, principal among them being the right to file an

occupational safety and health complaint with OSHA within 30 days of

the alleged violation. Section 11(c), unlike STAA and ERA, does not

provide for an administrative determination of the merits of a

complaint by the Secretary; instead, the Secretary of Labor may seek to

bring an action in Federal District Court to enforce the whistleblower

protection provision of the OSH Act. Section 1979.103(e), which is

comparable to a provision in the STAA regulations (see

§&thnsp;1978.102(e)), puts the community on notice that OSHA

considers all complaints filed with it as potential complaints under

Section 11(c) if it should turn out in the course of the investigation

that the underlying

[[Page 14103]]

protected safety or health activity falls under OSHA's authority rather

than that of the FAA. The final rule also clarifies that the

requirements of Section 11(c) necessarily apply to complaints that OSHA

treats as having been filed under the OSH Act, and that the

requirements of AIR21 apply to complaints that OSHA treats as having

been filed under AIR21.

Section 1979.104 Investigation

AIR21 contains a requirement similar to the requirement in the ERA

that a complaint shall be dismissed if it fails to make a prima facie

showing that protected behavior or conduct was a contributing factor in

the unfavorable personnel action alleged in the complaint. Also

included in this section is the AIR21 requirement that an investigation

of the complaint will not be conducted if the named person demonstrates

by clear and convincing evidence that it would have taken the same

unfavorable personnel action in the absence of the complainant's

protected behavior or conduct, notwithstanding the prima facie showing

of the complainant. Under this section, the named person has the

opportunity within 20 days of receipt of the complaint to meet with

representatives of OSHA and present evidence in support of his or her

position.

If, upon investigation, OSHA has reasonable cause to believe that

the named person has violated the Act and therefore that preliminary

relief for the complainant is warranted, OSHA again contacts the named

person with notice of this determination and provides the substance of

the relevant evidence upon which that determination is based,

consistent with the requirements of confidentiality of informants. The

named person is afforded the opportunity, within ten business days, to

provide written evidence in response to the allegation of the

violation, meet with the investigators, and present legal and factual

arguments why preliminary relief is not warranted. This provision

provides due process procedures in accordance with the Supreme Court

decision under STAA in Brock v. Roadway Express, Inc., 481 U.S. 252

(1987). In addition, we clarified that the ten-day time period refers

to ten business days. This is consistent with the Federal Rules of

Civil Procedure 6(a), which excludes from the computation of the period

of time intermediate Saturdays, Sundays, and legal holidays, when the

period of time prescribed or allowed is less than 11 days.

In a comment submitted by the AFA, it was suggested that

§&thnsp;1979.104(a) be revised to require the Assistant Secretary

to notify both the named person and the complainant of the filing of

the complaint and their rights under the Act. However, the statutory

language only requires that the named person be notified in writing. As

a matter of policy, OSHA does acknowledge receipt of the complaint in

writing back to the complainant.

The ATA commented that §&thnsp;1979.104.(b) should be modified

to make clear that if OSHA initiates an investigation, but later

concludes that the complainant has failed to establish a prima facie

case or that the respondent has rebutted the prima facie case, the

agency should terminate the investigation. This comment misapprehends

OSHA's practice and the intent of the rule. If, at any point in the

investigation, it becomes clear that a prima facie showing cannot be

established or that the evidence otherwise reveals that the complaint

lacks merit, OSHA will dismiss the complaint.

The TTD, NWC, AFA, and Senator Grassley all commented that

§&thnsp;1979.104(b)(1)(iv) and (b)(2) should be changed to more

accurately reflect the language of the statute in describing the

complainant's burden of proof. The commenters felt that the use of the

word “likely” effectively changed the intent of the

statutory language placing on the complainant the burden to demonstrate

that the protected activity “was a contributing factor in the

unfavorable personnel action alleged in the complaint.” OSHA

agrees that the language of the interim rule could be construed to

alter or otherwise inaccurately reflect the language of the statute,

and has changed it by deleting the word “likely.”

The AFA suggested that §&thnsp;1979.104(c) be changed to

require the Assistant Secretary to share documents submitted by the

named person with the complainant and to allow the complainant to be

present during the initial meeting with the named person, if requested.

OSHA believes that, consistent with other whistleblower laws, the

language of the statute is clear that the initial investigation by OSHA

is to be conducted independently for the purpose of establishing the

factual circumstances and facilitating an early resolution of the

claim.

The ATA recommended that §&thnsp;1979.104(c) be changed to

lengthen the named person's response time from ten days to 30 days. ATA

felt that ten days is not enough time to research and provide an

appropriate response that is substantial enough to make the required

demonstration by “clear and convincing evidence.” OSHA

agrees that ten days may frequently be a very short time to effectively

research and prepare a response. However, because the statute provides

only 60 days for OSHA to complete the entire investigation and issue

findings, OSHA believes that allowing half that time for submitting an

initial response will impede its ability to complete the investigation

in a timely manner. The final rule is changed to permit 20 days for

submitting an initial response and a request for a meeting, which is

also consistent with other whistleblower statutes having a 60-day

investigation time frame.

The AFA suggested that §&thnsp;1979.104(d) be modified to

delete the words, “other than the complainant” from the

last sentence to ensure confidentiality for all persons, including the

complainant. This rule is intended to affirmatively provide for the

protection of the identity of persons who come forward to OSHA to

provide information or testimony relevant to OSHA's investigation of

the whistleblower complaint. The phrase is not intended to limit or

restrict in any way OSHA's ability to appropriately withhold

information or documentation provided by the complainant which would

ordinarily be exempt from disclosure under the provisions of the

Freedom of Information Act.

The AFA also suggested that §&thnsp;1979.104(e) be changed to

require that when the Assistant Secretary concludes that reinstatement

is warranted, the complainant, as well as the named person, be

contacted to give notice of the substance of the evidence supporting

the complainant's claim and an opportunity to be present in any

subsequent meeting. The NWC recommended that §&thnsp;1979.104(e)

be deleted in its entirety because a second review of the respondent's

position unnecessarily delays the investigation. As noted above, it is

OSHA's position that OSHA's investigation is conducted independently

prior to the administrative hearing phase of the process, in which all

parties participate fully. The purpose of §&thnsp;1979.104(e) is

to ensure compliance with the Supreme Court's ruling in Brock v.

Roadway Express, Inc., 107 S. Ct. 1740 (1987), in which the court, on a

constitutional challenge to the temporary reinstatement provision in

the employee protection provisions of the Surface Transportation

Assistance Act (now codified at 49 U.S.C. 31105), upheld the facial

constitutionality of the statute and the procedures adopted by OSHA

under the Due Process Clause of the Fifth Amendment, but ruled that the

record

[[Page 14104]]

failed to show that OSHA investigators had informed Roadway of the

substance of the evidence to support reinstatement of the discharged

employee.

Section 1979.105 Issuance of Findings and Preliminary Orders

This section provides that, on the basis of information obtained in

the investigation, the Assistant Secretary will issue a finding

regarding whether or not the complaint has merit. If the finding is

that the complaint has merit, the Assistant Secretary will order

appropriate preliminary relief. The letter accompanying the findings

and order advises the parties of their right to file objections to the

findings of the Assistant Secretary. If no objections are filed within

30 days of receipt of the findings, the findings and any preliminary

order of the Assistant Secretary become the final findings and order of

the Secretary. If objections are timely filed, any order of preliminary

reinstatement will take effect, but the remaining provisions of the

order will not take effect until administrative proceedings are

completed. The language of §&thnsp;1979.105(c) has been changed to

explain this process without repeating the discussion in

§&thnsp;1979.106(b).

The AFA commented that §&thnsp;1979.105(a) should be modified

to require the awarding of attorney's fees to the complainant and to

provide only to the complainant a written summary of the relevant facts

obtained when a complaint is dismissed. OSHA believes that it is

obligated under the law to provide written findings to both parties

regardless of the outcome of the investigation. OSHA agrees that the

statutory language requires the Secretary to award reasonable

attorney's fees, and the language of the regulation has been changed

accordingly.

The ATA commented that §&thnsp;1979.105(a) should be modified

to make clear that OSHA should not order preliminary reinstatement of

an employee involved in air carrier operations if the individual poses

a safety risk to employees or passengers. The ATA felt that it was

possible in certain situations that OSHA might reasonably conclude that

a complainant should be reinstated, but that the complainant's return

to work could pose a safety hazard to other employees or the public.

AIR21 only permits issuance of a preliminary order granting

reinstatement if there is reasonable cause to believe that a violation

has occurred. Section 1979.104(e) provides opportunities for the named

person to present evidence to OSHA that the complainant would have been

discharged even in the absence of his or her protected activity. Where

the named party establishes that the complainant would have been

discharged even absent the protected activity, there would be no

reasonable cause to believe that a violation has occurred. Therefore, a

preliminary restatement order would not be issued.

Furthermore, a preliminary order of reinstatement would not be an

appropriate remedy where, for example, the named party establishes that

the complainant is, or has become, a security risk based upon

information obtained after the complainant's discharge in violation of

AIR21's employee protection provision. See McKennon v. Nashville Banner

Publishing Co., 513 U.S. 352, 360–62 (1995), in which the Supreme

Court recognized that reinstatement would not be an appropriate remedy

for discrimination under the Age Discrimination in Employment Act

where, based upon after-acquired evidence, the employer would have

terminated the employee upon lawful grounds. The final regulation

explicitly so provides. Moreover, because section 1979.105(a) provides

that the Assistant Secretary's preliminary order will require

reinstatement, along with the other make-whole remedies, “where

appropriate,” we believe that the regulations provide safeguards

that address ATA's legitimate security-risk concerns. Finally, in

appropriate circumstances, in lieu of preliminary reinstatement, OSHA

may order that the complainant receive the same pay and benefits that

he received prior to his termination, but not actually return to work.

Such “economic reinstatement” frequently is employed in

cases arising under section 105(c) of the Federal Mine Safety and

Health Act of 1977. See, e.g., Secretary of Labor on behalf of York v.

BR&D Enters., Inc., 23 FMSHRC 697, 2001 WL 1806020 **1 (June 26,

2001).

The AFA suggested that §&thnsp;1979.105(b) should be changed

to require the named person to produce proof of attorney's fees and to

provide the evidence directly to the complainant in cases where OSHA

finds that a complaint is frivolous or brought in bad faith. The NWC

commented that such sanctions against the complainant should not be

available during the investigation phase. In consideration of the

comments presented and OSHA's own re-evaluation of the statutory

language, OSHA has deleted the paragraph delegating to OSHA

responsibility for assessing attorney's fees up to $1,000 during the

investigation phase for complaints frivolously filed or filed in bad

faith (§&thnsp;1979.105(b)). The remaining paragraphs of this

section have been renumbered. The named person may seek attorney's fees

for complaints filed frivolously or in bad faith in the administrative

law judge proceeding as provided in §&thnsp;1979.106(a). Such

attorney's fees may be sought for fees incurred during the

investigation of a frivolous complaint, even where the Assistant

Secretary finds no merit to the complaint and the complainant does not

file any objection to the determination. See §&thnsp;1979.105(b)

and §&thnsp;1979.109(b). The named person also may seek attorney's

fees as provided in §&thnsp;1979.110(a), in a petition for review

by the Board. See §&thnsp;1979.110(e).

Section 1979.106 Objections to the Findings and the Preliminary

Order

To be effective, objections to the findings of the Assistant

Secretary must be in writing and must be filed with the Chief

Administrative Law Judge, U.S. Department of Labor, Washington, D.C.

within 30 days of receipt of the findings. The date of the postmark,

facsimile transmittal, or e-mail communication is considered the date

of the filing. The filing of objections is also considered a request

for a hearing before an ALJ. The language of §&thnsp;1979.106(b)

has been changed to explain the effect of the timely filing of

objections on the preliminary order without repeating the discussion in

§&thnsp;1979.105(c).

The NWC commented that in §&thnsp;1979.106(a) the requirement

that a party needs to file “objections” at the time a

request for hearing is filed should be deleted. The basis for the

comment was that other whistleblower regulations do not require it and

that unnecessary litigation may result over the adequacy of the

objections rather than the merits of the case. OSHA has considered this

concern and believes that the rules as drafted are correct and

consistent with the language of the statute. It is not expected that a

party's list of objections needs to be exhaustive at the time of the

initial request for hearing. A named person may seek attorney's fees

for the filing of a frivolous complaint or a complaint filed in bad

faith when filing any objections and a request for a hearing.

The NWC also felt that §&thnsp;1979.106(b)(1) should require

that all of the remedies of a preliminary order be immediately

effective, rather than just the reinstatement portion, when the

employee prevails at the investigative stage. OSHA believes that such

an interpretation is clearly inconsistent with the statutory language

which states that objections shall not operate to stay any

reinstatement remedy contained in the preliminary order.

[[Page 14105]]

Section 1979.107 Hearings

This section adopts the rules of practice of the Office of

Administrative Law Judges at 29 CFR Part 18, Subpart A. In order to

assist in obtaining full development of the facts in whistleblower

proceedings, formal rules of evidence do not apply. The section

specifically provides for consolidation of hearings if both the

complainant and the named person object to the findings and order of

the Assistant Secretary.

The ALPA commented that a new subsection should be added to

§&thnsp;1979.107 setting forth the standard of proof to be used by

the administrative law judges at hearing. OSHA believes that the

statute clearly sets forth the criteria for determination by the

Secretary, and additional clarification is not necessary.

Section 1979.108 Role of Federal Agencies

The ERA and STAA regulations provide two different models for

agency participation in administrative proceedings. Under STAA, OSHA

ordinarily prosecutes cases where a complaint has been found to be

meritorious. Under ERA and the other environmental whistleblower

statutes, on the other hand, OSHA does not ordinarily appear as a party

in the proceeding. The Department has found that in most environmental

whistleblower cases, parties have been ably represented and the public

interest has not required the Department's participation. Therefore

this provision utilizes the approach of the ERA regulation at 29 CFR

24.6(f)(1). The Assistant Secretary, at his or her discretion, may

participate as a party or amicus curiae at any time in the

administrative proceedings. For example, the Assistant Secretary may

exercise his or her discretion to prosecute the case in the

administrative proceeding before an administrative law judge; petition

for review of a decision of an administrative law judge, including a

decision based on a settlement agreement between complainant and the

named person, regardless of whether the Assistant Secretary

participated before the ALJ; or participate as amicus curiae before the

ALJ or in the Administrative Review Board proceeding. Although we

anticipate that ordinarily the Assistant Secretary will not participate

in AIR21 proceedings, the Assistant Secretary may choose to do so in

appropriate cases, such as cases involving important or novel legal

issues, large numbers of employees, alleged violations which appear

egregious, or where the interests of justice might require

participation by the Assistant Secretary. The FAA, at that agency's

discretion, also may participate as amicus curiae at any time in the

proceedings. The Department believes it is unlikely that its

preliminary decision not to ordinarily prosecute meritorious AIR21

cases will discourage employees from making complaints about air

carrier safety.

Four comments were received regarding §&thnsp;1979.108(a)(1).

The TTD and the AFA commented that the regulation should explicitly

provide that the Assistant Secretary shall act only in the interests of

the complainant at any hearings. The ALPA commented that the Assistant

Secretary should always act as prosecutor at any hearing before the ALJ

or review by the Board. The AFA commented that the Assistant Secretary

should act as prosecutor only at the request of the complainant. And

the ATA supported the section as written and commented that the

Assistant Secretary should limit participation to those few cases that

present issues of such particular legal significance to the agency as

to warrant participation. In consideration of all the comments received

it is OSHA's determination to leave the language of this rule as

written. The Assistant Secretary may participate as a party or may

participate as amicus curiae as he or she may deem necessary or

appropriate.

Section 1979.109 Decision of the Administrative Law Judge

This section sets forth the content of the decision and order of

the administrative law judge, and includes the statutory standard for

finding a violation. The section further provides that the Assistant

Secretary's determination to dismiss the complaint without an

investigation or complete an investigation pursuant to

§&thnsp;1979.104 is not subject to review. Paragraph (a) of this

section has been clarified to state expressly that the Assistant

Secretary's determinations on whether to proceed with an investigation

and to make particular investigative findings are discretionary

decisions not subject to review by the ALJ. The ALJ hears the case on

the merits, and may not remand the matter to the Assistant Secretary to

conduct an investigation or make further factual findings. Paragraph

(c) of this section has been changed to make the ALJ decision effective

ten business days after the date on which it was issued, unless a

timely petition for review has been filed with the Administrative

Review Board, to conform with the change in §&thnsp;1979.110(a),

which provides ten business days instead of “15 days” from

the date of the ALJ decision for the filing of a petition for review.

The AFA commented that §&thnsp;1979.109(b) should be changed

to require the administrative law judge to provide the complainant with

any evidence of the named person's attorney's fees and to formally

advise the complainant that the decision to award fees may be appealed.

OSHA does not believe this language is necessary because the right of

either party to appeal the administrative law judges' decisions is

explained in the subsequent section, to wit, §&thnsp;1979.110.

The NWC commented that §&thnsp;1979.109(c) should be modified

to reflect that the administrative law judges do not have statutory

authority to lift the Assistant Secretary's preliminary order of

reinstatement. OSHA does not believe that the proposed change can be

supported by the language of the statute.

Section 1979.110 Decision of the Administrative Review Board

The decision of the ALJ is the final decision of the Secretary if

no timely petition for review is filed with the Administrative Review

Board. Upon the issuance of the ALJ's decision, the parties may

petition the Board for review of that decision. The date of the

postmark, facsimile transmittal, or e-mail communication will be

considered to be the date of filing; if the petition is filed in

person, by hand-delivery or other means, the petition is considered

filed upon receipt. Paragraph (a) of this section has been modified to

facilitate the review process by stating expressly that the parties

must specifically identify the findings and conclusions to which they

take exception in the petition, or the exceptions are deemed waived by

the parties.

Paragraphs (a) and (b) also have been modified to provide that

appeals to the Board are not a matter of right, but rather petitions

for review are accepted at the discretion of the Board. The Board has

30 days to decide whether to grant the petition for review. If the

Board does not grant the petition, the decision of the ALJ becomes the

final decision of the Secretary. If the Board grants the petition, the

Act requires the Board to issue a decision not later than 120 days

after the date of the conclusion of the hearing before the ALJ. The

conclusion of the hearing is deemed to be the conclusion of all

proceedings before the administrative law judge—i.e., ten

business days after the date of the decision of the administrative law

judge unless a motion for reconsideration has been filed in the

interim. If a timely petition for review is filed with the

[[Page 14106]]

Board, any relief ordered by the ALJ, except for a preliminary order of

reinstatement, is inoperative while the matter is pending before the

Board. This section now further provides that, when the Board accepts a

petition for review, its review of factual determinations will be

conducted under the substantial evidence standard. This standard also

is applied to Board review of ALJ decisions under the whistleblower

provision of STAA. 29 CFR 1978.109(b)(3).

The AFA recommended that §&thnsp;1979.110(a) be changed to

state that a petition for review must be filed with the ARB within ten

days, rather than received by the Board within 15 days to allow either

party sufficient time to file without being penalized by inconsistent

postal delivery. OSHA agrees that, due to the vagaries of postal

delivery, the date of filing as described in this section rather than

the date of the Board's receipt of the petition should be used to

determine whether a petition is timely, and that ten days is sufficient

time to petition for review of an ALJ decision. Only business days

shall be counted in the ten days allowed for filing a petition,

consistent with the Federal Rules of Civil Procedure 6(a), and

paragraph (a) of this section has been changed to clarify the change

from “15” to “ten” days.

The AFA also recommended that §&thnsp;1979.110(c) be changed

to avoid undue delay by providing that the administrative law judge's

decision becomes the final order of the Secretary after 120 days if the

Administrative Review Board fails to act within the 120 days. OSHA

agrees that the procedure for Board review of an ALJ decision should be

modified to avoid delay and prejudice to the parties, and to facilitate

the issuance of a final order of the Secretary as required by the Act.

The modifications to the Board review procedure in paragraphs (a) and

(b) of this section, i.e., discretionary review by the Board, which

shall accept as conclusive ALJ findings of fact that are supported by

substantial evidence, address the concerns expressed by the AFA, and

the recommended change to paragraph (c) of this section is not

necessary.

Section 1979.111 Withdrawal of Complaints, Objections, and

Findings; Settlement

This section provides for the procedures and time periods for

withdrawal of complaints, the withdrawal of findings by the Assistant

Secretary, and the withdrawal of objections to findings. It also

provides for approval of settlements at the investigatory and judicial

stages of the case.

The NWC commented that §&thnsp;1979.111 should be modified to

permit a complainant to freely withdraw his or her complaint without

prejudice. OSHA believes that §&thnsp;1979.111 does permit a

complainant to freely withdraw his or her complaint without prejudice.

The purpose of the Assistant Secretary's approval is to help ensure

that the complainant's withdrawal is, indeed, made freely without

threat of coercion or unlawful promise.

Section 1979.112 Judicial Review

This section describes the statutory provisions for judicial review

of decisions of the Secretary and requires, in cases where judicial

review is sought, the Administrative Review Board to submit the record

of proceedings to the appropriate court pursuant to the rules of such

court.

Section 1979.113 Judicial Enforcement

This section describes the Secretary's power under the statute to

obtain judicial enforcement of orders and the terms of a settlement

agreement. It also provides for enforcement of orders of the Secretary

by the person on whose behalf the order was issued.

Section 1979.114 Special Circumstances; Waiver of Rules

This section provides that in circumstances not contemplated by

these rules or for good cause the Secretary may, upon application and

notice to the parties, waive any rule as justice or the administration

of the Act requires.

The NWC commented that §&thnsp;1979.114 should be deleted in

its entirety because it has no basis in the statutory language. OSHA

believes that the regulation should remain to give the administrative

law judges and the Administrative Review Board the flexibility to take

actions in unusual situations that are not contemplated by the

regulations.

IV. Paperwork Reduction Act

This rule contains a reporting requirement (§&thnsp;1979.103)

which was previously reviewed and approved for use by the Office of

Management and Budget (“OMB”) under 29 CFR 24.3 and

assigned OMB control number 1218–0236 under the provisions of the

Paperwork Reduction Act of 1995 (Pub. L. 104–13).

V. Administrative Procedure Act

This rule is a rule of agency procedure and practice within the

meaning of Section 553 of the Administrative Procedure Act

(“APA”), 5 U.S.C. 553(b)(A). Therefore, publication in the

Federal Register of a notice of proposed rulemaking and request for

comments was not required for these regulations, which provide

procedures for the handling of discrimination complaints. However, the

Assistant Secretary sought and considered comments to enable the agency

to improve the rules by taking into account the concerns of interested

persons.

Furthermore, because this rule is procedural rather than

substantive, the normal requirement of 5 U.S.C. 553(d) that a rule be

effective 30 days after publication in the Federal Register is

inapplicable. The Assistant Secretary also finds good cause to provide

an immediate effective date for this rule. It is in the public interest

that the rule be effective immediately so that parties may know what

procedures are applicable to pending cases.

VI. Executive Order 12866; Unfunded Mandates Reform Act of 1995; Small

Business Regulatory Enforcement Fairness Act of 1996; Executive Order

13132.

The Department has concluded that this rule should be treated as a

“significant regulatory action” within the meaning of

Section 3(f)(4) of Executive Order 12866 because AIR21 is a new program

and because of the importance to FAA's airline safety program that

“whistleblowers” be protected from retaliation. E.O. 12866

requires a full economic impact analysis only for “economically

significant” rules, which are defined in Section 3(f)(1) as rules

that may “have an annual effect on the economy of $100 million or

more, or adversely affect in a material way the economy, productivity,

competition, jobs, the environment, public health or safety, or State,

local, or tribal governments or communities.” Because the rule is

procedural in nature, it is not expected to have a significant economic

impact; therefore no economic impact analysis has been prepared. For

the same reason, the rule does not require a Section 202 statement

under the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531 et seq.).

Furthermore, because this is a rule of agency procedure or practice, it

is not a “rule” within the meaning of the Small Business

Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.), and

does not require Congressional review. Finally, this rule does not have

“federalism implications.” The rule does not have

“substantial direct effects on the States, on the relationship

between the national government and the States, or on the distribution

of power and

[[Page 14107]]

responsibilities among the various levels of government” and

therefore is not subject to Executive Order 13132 (Federalism).

VII. Regulatory Flexibility Analysis

The Department has determined that the regulation will not have a

significant economic impact on a substantial number of small entities.

The regulation simply implements procedures necessitated by enactment

of AIR21, in order to allow resolution of whistleblower complaints.

Furthermore, no certification to this effect is required and no

regulatory flexibility analysis is required because no proposed rule

has been issued.

Document Preparation: This document was prepared under the

direction and control of the Assistant Secretary, Occupational Safety

and Health Administration, U.S. Department of Labor.

List of Subjects in 29 CFR Part 1979

Administrative practice and procedure, Air carrier safety,

Employment, Investigations, Reporting and recordkeeping requirements,

Whistleblowing.

Signed at Washington, DC this 17th day of March, 2003.

John L. Henshaw,

Assistant Secretary for Occupational Safety and Health.

Accordingly, for the reasons set out in the preamble part 1979 of

title 29 of the Code of Federal Regulations is revised to read as

follows:

PART 1979—PROCEDURES FOR THE HANDLING OF DISCRIMINATION

COMPLAINTS UNDER SECTION 519 OF THE WENDELL H. FORD AVIATION

INVESTMENT AND REFORM ACT FOR THE 21ST CENTURY

Subpart A—Complaints, Investigations, Findings and Preliminary

Orders

Sec.

1979.100  Purpose and scope.

1979.101  Definitions.

1979.102  Obligations and prohibited acts.

1979.103  Filing of discrimination complaint.

1979.104  Investigation.

1979.105  Issuance of findings and preliminary orders.

Subpart B—Litigation

1979.106  Objections to the findings and the preliminary order

and request for a hearing.

1979.107  Hearings.

1979.108  Role of Federal agencies.

1979.109  Decision and orders of the administrative law judge.

1979.110  Decision and orders of the Administrative Review

Board.

Subpart C—Miscellaneous Provisions

1979.111  Withdrawal of complaints, objections, and findings;

settlement.

1979.112  Judicial review.

1979.113  Judicial enforcement.

1979.114  Special circumstances; waiver of rules.

Authority: 49 U.S.C. 42121; Secretary of Labor's Order

5–2002, 67 FR 65008 (October 22, 2002).

Subpart A—Complaints, Investigations, Findings and

Preliminary Orders

§&thnsp;1979.100 Purpose and scope.

(a) This part implements procedures under section 519 of the

Wendell H. Ford Aviation Investment and Reform Act for the 21st

Century, 49 U.S.C. 42121 (“AIR21”), which provides for

employee protection from discrimination by air carriers or contractors

or subcontractors of air carriers because the employee has engaged in

protected activity pertaining to a violation or alleged violation of

any order, regulation, or standard of the Federal Aviation

Administration or any other provision of Federal law relating to air

carrier safety.

(b) This part establishes procedures pursuant to AIR21 for the

expeditious handling of discrimination complaints made by employees, or

by persons acting on their behalf. These rules, together with those

rules codified at 29 CFR part 18, set forth the procedures for

submission of complaints under AIR21, investigations, issuance of

findings and preliminary orders, objections to findings and orders,

litigation before administrative law judges, post-hearing

administrative review, and withdrawals and settlements.

§&thnsp;1979.101 Definitions.

Act or AIR21 means section 519 of the Wendell H. Ford Aviation

Investment and Reform Act for the 21st Century, Public Law

106–181, April 5, 2000, 49 U.S.C. 42121.

Air carrier means a citizen of the United States undertaking by any

means, directly or indirectly, to provide air transportation.

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.

Complainant means the employee who filed a complaint under the Act

or on whose behalf a complaint was filed.

Contractor means a company that performs safety-sensitive functions

by contract for an air carrier.

Employee means an individual presently or formerly working for an

air carrier or contractor or subcontractor of an air carrier, an

individual applying to work for an air carrier or contractor or

subcontractor of an air carrier, or an individual whose employment

could be affected by an air carrier or contractor or subcontractor of

an air carrier.

Named person means the person alleged to have violated the Act.

OSHA means the Occupational Safety and Health Administration of the

United States Department of Labor.

Person means one or more individuals, partnerships, associations,

corporations, business trusts, legal representatives, or any group of

persons.

Secretary means the Secretary of Labor or persons to whom authority

under the Act has been delegated.

§&thnsp;1979.102 Obligations and prohibited acts.

(a) No air carrier or contractor or subcontractor of an air carrier

may discharge any employee or otherwise discriminate against any

employee with respect to the employee's compensation, terms,

conditions, or privileges of employment because the employee, or any

person acting pursuant to the employee's request, engaged in any of the

activities specified in paragraphs (b)(1) through (4) of this section.

(b) It is a violation of the Act for any air carrier or contractor

or subcontractor of an air carrier to intimidate, threaten, restrain,

coerce, blacklist, discharge or in any other manner discriminate

against any employee because the employee has:

(1) Provided, caused to be provided, or is about to provide (with

any knowledge of the employer) or cause to be provided to the air

carrier or contractor or subcontractor of an air carrier or the Federal

Government, information relating to any violation or alleged violation

of any order, regulation, or standard of the Federal Aviation

Administration or any other provision of Federal law relating to air

carrier safety under subtitle VII of title 49 of the United States Code

or under any other law of the United States;

(2) Filed, caused to be filed, or is about to file (with any

knowledge of the employer) or cause to be filed a proceeding relating

to any violation or alleged violation of any order, regulation, or

standard of the Federal Aviation Administration or any other provision

of Federal law relating to air carrier safety under subtitle VII of

title 49 of the United States Code, or under any other law of the

United States;

(3) Testified or is about to testify in such a proceeding; or

(4) Assisted or participated or is about to assist or participate

in such a proceeding.

[[Page 14108]]

(c) This part shall have no application to any employee of an air

carrier, contractor, or subcontractor who, acting without direction

from an air carrier, contractor, or subcontractor (or such person's

agent) deliberately causes a violation of any requirement relating to

air carrier safety under Subtitle VII Aviation Programs of Title 49 of

the United States Code or any other law of the United States.

§&thnsp;1979.103 Filing of discrimination complaint.

(a) Who may file. An employee who believes that he or she has been

discriminated against by an air carrier or contractor or subcontractor

of an air carrier in violation of the Act may file, or have filed by

any person on the employee's behalf, a complaint alleging such

discrimination.

(b) Nature of filing. No particular form of complaint is required,

except that a complaint must be in writing and should include a full

statement of the acts and omissions, with pertinent dates, which are

believed to constitute the violations.

(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 may

be filed with any OSHA officer or employee. Addresses and telephone

numbers for these officials are set forth in local directories and at

the following Internet address: http://www.osha.gov.

(d) Time for filing. Within 90 days after an alleged violation of

the Act occurs (i.e., when the discriminatory decision has been both

made and communicated to the complainant), an employee who believes

that he or she has been discriminated against in violation of the Act

may file, or have filed by any person on the employee's behalf, a

complaint alleging such discrimination. The date of the postmark,

facsimile transmittal, or e-mail communication will be considered to be

the date of filing; if the complaint is filed in person, by hand-

delivery, or other means, the complaint is filed upon receipt.

(e) Relationship to section 11(c) complaints. A complaint filed

under AIR21 that alleges facts which would constitute a violation of

section 11(c) of the Occupational Safety and Health Act, 29 U.S.C.

660(c), shall be deemed to be a complaint filed under both AIR21 and

section 11(c). Similarly, a complaint filed under section 11(c) that

alleges facts that would constitute a violation of AIR21 shall be

deemed to be a complaint filed under both AIR21 and section 11(c).

Normal procedures and timeliness requirements for investigations under

the respective laws and regulations will be followed.

§&thnsp;1979.104 Investigation.

(a) Upon receipt of a complaint in the investigating office, the

Assistant Secretary will notify the named person of the filing of the

complaint, of the allegations contained in the complaint, and of the

substance of the evidence supporting the complaint (redacted to protect

the identity of any confidential informants). The Assistant Secretary

will also notify the named person of his or her rights under paragraphs

(b) and (c) of this section and paragraph (e) of §&thnsp;1979.110.

A copy of the notice to the named person will also be provided to the

Federal Aviation Administration.

(b) A complaint of alleged violation will be dismissed unless the

complainant has made a prima facie showing that protected behavior or

conduct was a contributing factor in the unfavorable personnel action

alleged in the complaint.

(1) The complaint, supplemented as appropriate by interviews of the

complainant, must allege the existence of facts and evidence to make a

prima facie showing as follows:

(i) The employee engaged in a protected activity or conduct;

(ii) The named person knew or suspected, actually or

constructively, that the employee engaged in the protected activity;

(iii) The employee suffered an unfavorable personnel action; and

(iv) The circumstances were sufficient to raise the inference that

the protected activity was a contributing factor in the unfavorable

action.

(2) For purposes of determining whether to investigate, the

complainant will be considered to have met the required burden if the

complaint on its face, supplemented as appropriate through interviews

of the complainant, alleges the existence of facts and either direct or

circumstantial evidence to meet the required showing, i.e., to give

rise to an inference that the named person knew or suspected that the

employee engaged in protected activity and that the protected activity

was a contributing factor in the unfavorable personnel action. Normally

the burden is satisfied, for example, if the complaint shows that the

adverse personnel action took place shortly after the protected

activity, giving rise to the inference that it was a factor in the

adverse action. If the required showing has not been made, the

complainant will be so advised and the investigation will not commence.

(c) Notwithstanding a finding that a complainant has made a prima

facie showing, as required by this section, an investigation of the

complaint will not be conducted if the named person, pursuant to the

procedures provided in this paragraph, demonstrates by clear and

convincing evidence that it would have taken the same unfavorable

personnel action in the absence of the complainant's protected behavior

or conduct. Within 20 days of receipt of the notice of the filing of

the complaint, the named person may submit to the Assistant Secretary a

written statement and any affidavits or documents substantiating his or

her position. Within the same 20 days the named person may request a

meeting with the Assistant Secretary to present his or her position.

(d) If the named person fails to demonstrate by clear and

convincing evidence that it would have taken the same unfavorable

personnel action in the absence of the behavior protected by the Act,

the Assistant Secretary will conduct an investigation. Investigations

will be conducted in a manner that protects the confidentiality of any

person who provides information on a confidential basis, other than the

complainant, in accordance with 29 CFR part 70.

(e) Prior to the issuance of findings and a preliminary order as

provided for in §&thnsp;1979.105, if the Assistant Secretary has

reasonable cause, on the basis of information gathered under the

procedures of this part, to believe that the named person has violated

the Act and that preliminary reinstatement is warranted, the Assistant

Secretary will again contact the named person to give notice of the

substance of the relevant evidence supporting the complainant's

allegations as developed during the course of the investigation. This

evidence includes any witness statements, which will be redacted to

protect the identity of confidential informants where statements were

given in confidence; if the statements cannot be redacted without

revealing the identity of confidential informants, summaries of their

contents will be provided. The named person shall be given the

opportunity to submit a written response, to meet with the

investigators to present statements from witnesses in support of his or

her position, and to present legal and factual arguments. The named

person shall present this evidence within ten business days of the

Assistant Secretary's notification pursuant to this paragraph, or as

soon afterwards as the Assistant Secretary and the named

[[Page 14109]]

person can agree, if the interests of justice so require.

§&thnsp;1979.105 Issuance of findings and preliminary orders.

(a) After considering all the relevant information collected during

the investigation, the Assistant Secretary will issue, within 60 days

of filing of the complaint, written findings as to whether or not there

is reasonable cause to believe that the named person has discriminated

against the complainant in violation of the Act.

(1) If the Assistant Secretary concludes that there is reasonable

cause to believe that a violation has occurred, he or she will

accompany the findings with a preliminary order providing relief to the

complainant. The preliminary 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.

Where the named person establishes that the complainant is a security

risk (whether or not the information is obtained after the

complainant's discharge), a preliminary order of reinstatement would

not be appropriate. At the complainant's request the order shall also

assess against the named person the complainant's costs and expenses

(including attorney's and expert witness fees) reasonably incurred in

connection with the filing of the complaint.

(2) If the Assistant Secretary concludes that a violation has not

occurred, the Assistant Secretary will notify the parties of that

finding.

(b) The findings and the preliminary order will be sent by

certified mail, return receipt requested, to all parties of record. The

letter accompanying the findings and order will inform the parties of

their right to file objections and to request a hearing, and of the

right of the named person to request attorney's fees from the

administrative law judge, regardless of whether the named person has

filed objections, if the named person alleges that the complaint was

frivolous or brought in bad faith. The letter also will give the

address of the Chief Administrative Law Judge. At the same time, the

Assistant Secretary will file with the Chief Administrative Law Judge,

U.S. Department of Labor, a copy of the original complaint and a copy

of the findings and order.

(c) The findings and the preliminary order shall be effective 30

days after receipt by the named person pursuant to paragraph (b) of

this section, unless an objection and a request for a hearing has been

filed as provided at §&thnsp;1979.106. However, the portion of any

preliminary order requiring reinstatement shall be effective

immediately upon receipt of the findings and preliminary order.

Subpart B—Litigation

§&thnsp;1979.106 Objections to the findings and the preliminary

order and request for a hearing.

(a) Any party who desires review, including judicial review, of the

findings and preliminary order, or a named person alleging that the

complaint was frivolous or brought in bad faith who seeks an award of

attorney's fees, must file any objections and/or a request for a

hearing on the record within 30 days of receipt of the findings and

preliminary order pursuant to paragraph (b) of §&thnsp;1979.105.

The objection or request for attorney's fees and request for a hearing

must be in writing and state whether the objection is to the findings,

the preliminary order, and/or whether there should be an award of

attorney's fees. The date of the postmark, facsimile transmittal, or e-

mail communication will be considered to be the date of filing; if the

objection is filed in person, by hand-delivery or other means, the

objection is filed upon receipt. Objections must be filed with the

Chief Administrative Law Judge, U.S. Department of Labor, Washington,

DC 20001, and copies of the objections must be mailed at the same time

to the other parties of record, the OSHA official who issued the

findings and order, and the Associate Solicitor, Division of Fair Labor

Standards, U.S. Department of Labor, Washington, DC 20210.

(b)(1) If a timely objection is filed, all provisions of the

preliminary order shall be stayed, except for the portion requiring

preliminary reinstatement. The portion of the preliminary order

requiring reinstatement shall be effective immediately upon the named

person's receipt of the findings and preliminary order, regardless of

any objections to the order.

(2) If no timely objection is filed with respect to either the

findings or the preliminary order, the findings or preliminary order,

as the case may be, shall become the final decision of the Secretary,

not subject to judicial review.

§&thnsp;1979.107 Hearings.

(a) Except as provided in this part, proceedings will be conducted

in accordance with the rules of practice and procedure for

administrative hearings before the Office of Administrative Law Judges,

codified at subpart A, of 29 CFR part 18.

(b) Upon receipt of an objection and request for hearing, the Chief

Administrative Law Judge will promptly assign the case to a judge who

will notify the parties, by certified mail, of the day, time, and place

of hearing. The hearing is to commence expeditiously, except upon a

showing of good cause or unless otherwise agreed to by the parties.

Hearings will be conducted as hearings de novo, on the record.

Administrative law judges shall have broad discretion to limit

discovery in order to expedite the hearing.

(c) If both the complainant and the named person object to the

findings and/or order, the objections will be consolidated and a single

hearing will be conducted.

(d) Formal rules of evidence shall not apply, but rules or

principles designed to assure production of the most probative evidence

shall be applied. The administrative law judge may exclude evidence

which is immaterial, irrelevant, or unduly repetitious.

§&thnsp;1979.108 Role of Federal agencies.

(a)(1) The complainant and the named person shall be parties in

every proceeding. At the Assistant Secretary's discretion, the

Assistant Secretary may participate as a party or may participate as

amicus curiae at any time in the proceedings. This right to participate

shall include, but is not limited to, the right to petition for review

of a decision of an administrative law judge, including a decision

based on a settlement agreement between complainant and the named

person, to dismiss a complaint or to issue an order encompassing the

terms of the settlement.

(2) Copies of pleadings in all cases, whether or not the Assistant

Secretary is participating in the proceeding, must be sent to the

Assistant Secretary, Occupational Safety and Health Administration, and

to the Associate Solicitor, Division of Fair Labor Standards, U.S.

Department of Labor, Washington, DC 20210.

(b) The FAA may participate as amicus curiae at any time in the

proceedings, at the FAA's discretion. At the request of the FAA, copies

of all pleadings in a case must be sent to the FAA, whether or not the

FAA is participating in the proceeding.

§&thnsp;1979.109 Decision and orders of the administrative law

judge.

(a) The decision of the administrative law judge will contain

appropriate findings, conclusions, and an order pertaining to the

remedies provided in

[[Page 14110]]

paragraph (b) of this section, as appropriate. A determination that a

violation has occurred may only be made if the complainant has

demonstrated that protected behavior or conduct was a contributing

factor in the unfavorable personnel action alleged in the complaint.

Relief may not be ordered if the named person demonstrates by clear and

convincing evidence that it would have taken the same unfavorable

personnel action in the absence of any protected behavior. Neither the

Assistant Secretary's determination to dismiss a complaint without

completing an investigation pursuant to §&thnsp;1979.104(b) nor

the Assistant Secretary's determination to proceed with an

investigation is subject to review by the administrative law judge, and

a complaint may not be remanded for the completion of an investigation

or for additional findings on the basis that a determination to dismiss

was made in error. Rather, if there otherwise is jurisdiction, the

administrative law judge shall hear the case on the merits.

(b) If the administrative law judge concludes that the party

charged has violated the law, the order shall direct the party charged

to take appropriate affirmative action to abate the violation,

including, where appropriate, reinstatement of the complainant to that

person's former position, together with the compensation (including

back pay), terms, conditions, and privileges of that employment, and

compensatory damages. At the request of the complainant, the

administrative law judge shall assess against the named person all

costs and expenses (including attorney's and expert witness fees)

reasonably incurred. If, upon the request of the named person, the

administrative law judge determines that a complaint was frivolous or

was brought in bad faith, the judge may award to the named person a

reasonable attorney's fee, not exceeding $1,000.

(c) The decision will be served upon all parties to the proceeding.

Any administrative law judge's decision requiring reinstatement or

lifting an order of reinstatement by the Assistant Secretary shall be

effective immediately upon receipt of the decision by the named person,

and may not be stayed. All other portions of the judge's order shall be

effective ten business days after the date of the decision unless a

timely petition for review has been filed with the Administrative

Review Board.

§&thnsp;1979.110 Decision and orders of the Administrative Review

Board.

(a) Any party desiring to seek review, including judicial review,

of a decision of the administrative law judge, or a named person

alleging that the complaint was frivolous or brought in bad faith who

seeks an award of attorney's fees, must file a written petition for

review with the Administrative Review Board (“the Board”),

which has been delegated the authority to act for the Secretary and

issue final decisions under this part. The decision of the

administrative law judge shall become the final order of the Secretary

unless, pursuant to this section, a petition for review is timely filed

with the Board. The petition for review must specifically identify the

findings, conclusions or orders to which exception is taken. Any

exception not specifically urged ordinarily shall be deemed to have

been waived by the parties. To be effective, a petition must be filed

within ten business days of the date of the decision of the

administrative law judge. The date of the postmark, facsimile

transmittal, or e-mail communication will be considered to be the date

of filing; if the petition is filed in person, by hand-delivery or

other means, the petition is considered filed upon receipt. The

petition must be served on all parties and on the Chief Administrative

Law Judge at the time it is filed with the Board. Copies of the

petition for review and all briefs must be served on the Assistant

Secretary, Occupational Safety and Health Administration, and on the

Associate Solicitor, Division of Fair Labor Standards, U.S. Department

of Labor, Washington, DC 20210.

(b) If a timely petition for review is filed pursuant to paragraph

(a) of this section, the decision of the administrative law judge shall

become the final order of the Secretary unless the Board, within 30

days of the filing of the petition, issues an order notifying the

parties that the case has been accepted for review. If a case is

accepted for review, the decision of the administrative law judge shall

be inoperative unless and until the Board issues an order adopting the

decision, except that a preliminary order of reinstatement shall be

effective while review is conducted by the Board. The Board will

specify the terms under which any briefs are to be filed. The Board

will review the factual determinations of the administrative law judge

under the substantial evidence standard.

(c) The final decision of the Board shall be issued within 120 days

of the conclusion of the hearing, which shall be deemed to be the

conclusion of all proceedings before the administrative law

judge—i.e., ten business days after the date of the decision of

the administrative law judge unless a motion for reconsideration has

been filed with the administrative law judge in the interim. The

decision will be served upon all parties and the Chief Administrative

Law Judge by mail to the last known address. The final decision will

also be served on the Assistant Secretary, Occupational Safety and

Health Administration, and on the Associate Solicitor, Division of Fair

Labor Standards, U.S. Department of Labor, Washington, DC 20210, even

if the Assistant Secretary is not a party.

(d) If the Board concludes that the party charged has violated the

law, the final order shall order the party charged to take appropriate

affirmative action to abate the violation, including, where

appropriate, reinstatement of the complainant to that person's former

position, together with the compensation (including back pay), terms,

conditions, and privileges of that employment, and compensatory

damages. At the request of the complainant, the Board shall assess

against the named person all costs and expenses (including attorney's

and expert witness fees) reasonably incurred.

(e) If the Board determines that the named person has not violated

the law, an order shall be issued denying the complaint. If, upon the

request of the named person, the Board determines that a complaint was

frivolous or was brought in bad faith, the Board may award to the named

person a reasonable attorney's fee, not exceeding $1,000.

Subpart C—Miscellaneous Provisions

§&thnsp;1979.111 Withdrawal of complaints, objections, and

findings; settlement.

(a) At any time prior to the filing of objections to the findings

or preliminary order, a complainant may withdraw his or her complaint

under the Act by filing a written withdrawal with the Assistant

Secretary. The Assistant Secretary will then determine whether the

withdrawal will be approved. The Assistant Secretary will notify the

named person of the approval of any withdrawal. If the complaint is

withdrawn because of settlement, the settlement shall be approved in

accordance with paragraph (d) of this section.

(b) The Assistant Secretary may withdraw his or her findings or a

preliminary order at any time before the expiration of the 30-day

objection period described in §&thnsp;1979.106, 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

[[Page 14111]]

order will begin a new 30-day objection period.

(c) At any time before the findings or order become final, a party

may withdraw his or her 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 Board. The judge or the Board, as the case may be,

will determine whether the withdrawal will be approved. If the

objections are withdrawn because of settlement, the settlement shall be

approved in accordance with paragraph (d) of this section.

(d)(1) Investigative settlements. At any time after the filing of a

complaint, and before the findings 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 settlements. 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

the settlement is approved by the administrative law judge if the case

is before the judge, or by the Board if a timely petition for review

has been filed with the Board. A copy of the settlement shall be filed

with the administrative law judge or the Board, as the case may be.

(e) Any settlement approved by the Assistant Secretary, the

administrative law judge, or the Board, shall constitute the final

order of the Secretary and may be enforced pursuant to

§&thnsp;1979.113.

§&thnsp;1979.112 Judicial review.

(a) Within 60 days after the issuance of a final order by the Board

under §&thnsp;1979.110, any person adversely affected or aggrieved

by the 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 complainant resided on

the date of the violation. A final order of the Board is not subject to

judicial review in any criminal or other civil proceeding.

(b) If a timely petition for review is filed, the record of a case,

including the record of proceedings before the administrative law

judge, will be transmitted by the Board to the appropriate court

pursuant to the rules of the court.

§&thnsp;1979.113 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 or a person on whose behalf the order was

issued 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 have occurred.

§&thnsp;1979.114 Special circumstances; waiver of rules.

In special circumstances not contemplated by the provisions of this

part, or for good cause shown, the administrative law judge or the

Board on review may, upon application, after three days notice to all

parties and interveners, waive any rule or issue any orders that

justice or the administration of the Act requires.

[FR Doc. 03–6792 Filed 3–20–03; 8:45 am]

BILLING CODE 4510–26–U