ARB CASE NO. 01-032
ALJ CASE NO. 00-STA-4
DATE: February 27, 2003
In the Matter of:
DALE A. BECKER,
COMPLAINANT,
v.
WEST SIDE TRANSPORT, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant: Paul O. Taylor, Esq., Truckers Justice Center, Eagan, Minnesota
For the Respondent:
Chris J. Scheldrup, Esq., Ronald D. Fadness, Esq., Moyer & Bergman P.L.C., Cedar Rapids, Iowa
FINAL DECISION AND ORDER
This case arises under the employee protection ("whistleblower") provision of the Surface Transportation Assistance Act (STAA) of 1982, as amended, 49 U.S.C. ' 31105 (1994). Complainant Dale A. Becker filed a complaint alleging that Respondent West Side Transport, Inc. (West Side) retaliated against him for engaging in activities protected by the STAA. Following a hearing on the merits, the ALJ held that West Side did not violate the STAA and recommended dismissal of the case. Becker has appealed the ALJ=s recommended order to the Board.
The record supports the ALJ's conclusions that Becker quit his position with West Side, that West Side treated Becker as having quit based on Becker's statements and related conduct, not his protected activity, and that West Side did not violate the STAA by refusing to rehire Becker. The record also indicates that West Side did not violate the STAA by providing a negative comment about Becker's work record to an employment history-reporting bureau.
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BACKGROUND
Becker was hired by West Side, a commercial motor carrier based in Cedar Rapids, Iowa, on August 3, 1998. Becker completed a number of long-distance trips during the months he was employed by West Side, and during his employment he made a number of complaints to management, including comments regarding West Side's methods of trip scheduling and planning. He testified as to several instances in which he drove for West Side while fatigued:
Between September 23 and 25, 1998, Becker drove a route from Indiana to Virginia that included three separate stops. Toward the end of that route he was assigned an additional load but complained that he was too tired to complete the assignment. Despite his fatigue Becker took the assignment when the dispatcher informed him that he was hauling hurricane relief supplies.
At 9:30 a.m. on October 13, 1998, Becker arrived in Lufkin, Texas to pick up a load. He did not commence driving that load until 1:30 a.m. on October 14, 1998. Becker testified that the long wait affected his sleep pattern, resulting in his driving while fatigued.
Between November 4 and 5, 1998, Becker drove through Texas, Arkansas, and Missouri. He testified that during that period he drove while fatigued because he felt pressured to complete his assignments.
Between November 14 and 16, 1998, he drove between Iowa and Pennsylvania. At one point he had to wait for a load that was not ready, which resulted in his driving despite feeling fatigued.
1 GSTC is a trucking company based in Walford, Iowa.
2 See JX 4 ("I have made a lot of Complaints the last 6 weeks on the Road . . . I have complained that we are not given enough time to Drive and Relax on our trips . . . as I only had a couple of hours sleep that nite waiting for load, I had a terrible time fighting to stay awake . . . By this time of (day ?) I could hardly stay awake, I was very tired. I was ready to take a nap as soon as the truck was empty . . . I headed down the road very tired . . . I could have had a nap in Mt. Pleasant and something to eat and not risk my life and equipment driving half asleep to Greenville, TX.")
3 The ALJ also noted that Becker's failure to apply for unemployment insurance payments might indicate that he quit, rather than that he was discharged. R. D. & O. at 8. The ALJ did not rely on this fact, however, in finding that Becker quit his job.