He also argued that he engaged in protected activity by complaining that the truck he was driving did not have a New York Highway Use Tax ("HUT") sticker. According to Forrest, because he engaged in these protected activities, Transwood created such a coercive working atmosphere that he was forced to resign.
With regard to Forrest's concerns about the HUT sticker, the ALJ determined that the HUT sticker was a tax collection matter unrelated to truck safety, and therefore did not constitute a protected complaint about a violation of a safety regulation. In addition, the ALJ held that no reasonable person could believe that the failure to obtain a HUT sticker established a real danger of accident, injury, or serious impairment to health. Thus, in the ALJ's view, Forrest's concerns about the HUT sticker simply did not constitute protected activity under the STAA.
The ALJ agreed that Forrest's refusal to drive a truck in excess of the hours permitted by regulation was a protected activity. However, the ALJ found that the dispatcher's failure to afford Forrest an eight hour break was the result of a simple miscalculation and that, once the dispatcher realized her error, she immediately apologized and allowed him to take an eight-hour
break. Most significantly, the ALJ found that, to the extent that Forrest was having difficulty working for Transwood, his problems were due to an on-going pattern of problem behavior and were not occasioned by this protected activity. Moreover, the ALJ found that none of Forrest's jobsite conflicts rose to the level of aggravation that would support a finding of constructive discharge. Because Forrest was not discriminated against because of his protected activity, and because he was not subjected to an adverse action, the ALJ recommended that the complaint be dismissed.
The ALJ's decision is before the Board pursuant to the automatic review procedures under 29 C.F.R. §1978.109(c)(1). Pursuant to 29 C.F.R. §1978.109(c)(2), the Board invited both parties to file briefs in support of, or in opposition to, the ALJ's recommended decision. Forrest filed a brief, but Transwood did not.
On appeal, Forrest objects to several statements or rulings made by the ALJ and alleges that they demonstrate the ALJ's predisposition to rule against him. We have reviewed the record in this case and find no basis upon which to conclude that the ALJ's statements or rulings were erroneous or the result of bias. Moreover, none of the arguments proffered by Forrest has any bearing on the dispositive issue in this case: whether Transwood constructively discharged Forrest for engaging in protected activity.
Here, the ALJ found that Transwood did not retaliate against Forrest for engaging in activity protected by the STAA. The ALJ's findings are amply supported by substantial evidence in the record. We therefore adopt and attach the ALJ's recommendation and DENY the complaint.4
SO ORDERED.
PAUL GREENBERG
OLIVER M. TRANSUE
[ENDNOTES]
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