ARB CASE NO. 01-042
ALJ CASE NO. 2000-STA-0044
DATE: July 31, 2003
In the Matter of:
ASSISTANT SECRETARY OF LABOR
FOR OCCUPATIONAL SAFETY AND
HEALTH,
PROSECUTING PARTY,
and
KENNETH HELGREN,
COMPLAINANT,
v.
MINNESOTA CORN PROCESSORS, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Prosecuting Party:
Howard Radzely, Esq., Joseph M. Woodward, Esq., Donald G. Shaloub, Esq.,
Daniel J. Mick, Esq., Mark J. Lerner, Esq., Mark Richter, Esq., U. S. Department
of Labor, Washington, D.C.
For the Complainant:
Kenneth D. Helgren, pro se, Puyallup, Washington
For the Respondent: Philip L. Ross, Esq., Littler Mendelson, P.C., San Francisco, California
FINAL DECISION AND ORDER
Kenneth Helgren complained that his employer, Minnesota Corn Processors (MCP), suspended and subsequently discharged him for refusing to drive a commercial vehicle that he believed to be unsafe. The employee protection provisions of the Surface Transportation Assistance Act (STAA) prohibit discrimination against an employee for engaging in activities that are protected under the Act. 49 U.S.C.A. § 31105 (West 1997). In his Recommended Decision and Order (R. D. & O.), the Administrative Law Judge (ALJ) concluded that MCP had terminated Helgren's employment in violation of the STAA. We find the ALJ's determination that MCP violated the STAA reversible error, and we deny the complaint.
1 Citations to the record are as follows: "Tr." for the hearing transcript and "ALJX," "CX," "RX," and "JX" for the Administrative Law Judge's, Complainant's, Respondent's and Joint Exhibits, respectively.
2 The front end problems continued well after the termination of Helgren's employment. Id. at 19. The repair made on March 28, 2000, may have finally corrected the problem. Id.
3 The ALJ's numerous findings of fact are thorough and detailed as are his credibility determinations. The clarity of these findings greatly facilitated the Board's efforts.
(1) Every motor carrier or its agent shall certify on the original driver vehicle inspection report which lists any defect or deficiency that the defect or deficiency has been repaired or that repair is unnecessary before the vehicle is operated again.
5 We reviewed the OSHA Investigator's Discrimination Case Activity Worksheet, the Assistant Secretary's Findings and Preliminary Order, and the Prehearing Statement of the Prosecuting Party. ALJX 4, 1, 20.
6 During cross-examination, Helgren stated that MCP failed to have a mechanic sign off on the DVIR, and therefore, violated the regulations at § 396.11. Tr. at 284, 348-350. Helgren further testified that he had told the OSHA investigator about his view that MCP violated the regulations regarding DVIRs. Id. At the hearing, the prosecuting party neither explored nor developed Helgren's testimony on this point. Furthermore, the prosecuting party does not argue, and we do not find, these passing statements sufficient to give MCP notice that it was being charged with a section (i) violation.