For the Complainant:
Richard S. Schulman, Colchester, Connecticut, pro se
For the Respondent:
Felix J. Springer, Esq., Sarah Moore Fass, Esq.
Day Berry & Howard LLP, Hartford, Connecticut
FINAL DECISION AND ORDER
This case arises under Section 405, the employee protection provision, of the
Surface Transportation Assistance Act of 1982 (STAA), as amended, 49 U.S.C. §31105 (1994).
Complainant, Richard S. Schulman (Schulman), alleges that Respondent Clean Harbors Environmental
Services, Inc. (Clean Harbors) violated the STAA by firing him for citing safety problems with Clean
Harbors' equipment and his refusal to operate such equipment.
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Following a hearing on the merits, the Administrative Law Judge (ALJ) issued a
Recommended Decision and Order (R. D. & O.) in which he found that Schulman had not proven by a
preponderance of the evidence that Clean Harbors violated the employee protection provisions of Section
405 when it discharged him from employment as a truck driver. For the reasons set forth below, we agree
with the ALJ's conclusion that Schulman's discharge did not violate the employee protection provision of
the STAA.
PROCEDURAL HISTORY
On or about March 18, 1998, Schulman filed a complaint with the Department of
Labor's Occupational Safety and Health Administration (OSHA), alleging that Clean Harbors unlawfully
retaliated against him on February 24, 1998, when he was terminated from his position as a Class A
Hazardous Waste Transporter. Complainant's Exhibits (CX) 5 and 6. Upon a determination by the
OSHA Area Director that Schulman's complaint did not have merit, Schulman filed objections with the
Office of Administrative Law Judges, requesting a hearing on his complaint. ALJ Exhibit 7. A hearing was
subsequently held before an ALJ from September 8-10, 1998, in New London, Connecticut. The ALJ
issued his R. D. & O. on December 7, 1998, and immediately forwarded the recommended decision to
the Administrative Review Board for final disposition.
The Board has jurisdiction to determine this case pursuant to 49 U.S.C.
§31105(b)(2)(C) and 29 C.F.R. §1978.109 (1998).
STANDARD OF REVIEW
Pursuant to the regulation implementing the STAA at 29 C.F.R.
§1978.109(c)(3), if the factual findings rendered by the ALJ are supported by substantial evidence
on the record considered as a whole, the Administrative Review Board is bound by those findings.
BSP Trans., Inc. v. United States Dept. of Labor, 160 F.3d 38, 46 (1st Cir. 1998); Roadway
Express, Inc. v. Dole, 929 F.2d 1060, 1063 (5th Cir. 1991).
Pursuant to the Administrative Procedure Act, in reviewing the ALJ's conclusions
of law, the Board, as the designee of the Secretary, acts with "all the powers [the Secretary] would
have in making the initial decision . . . ." 5 U.S.C. §557(b), quoted in Goldstein v.
Ebasco Constructors, Inc., Case No. 86-ERA-36, Sec. Dec., Apr. 7, 1992 (applying analogous
employee protection provision under the Energy Reorganization Act, 42 U.S.C. §5851); see
29 C.F.R. §1978.109(b). Accordingly, the Board reviews questions of law de novo.
See Yellow Freight Systems, Inc. v. Reich, 8 F.3d 980, 986 (4th Cir. 1993); Roadway
Express, 929 F.2d at 1063. See generally Mattes v. United States Dep't of Agriculture,
721 F.2d 1125, 1128-30 (7th Cir. 1983) (rejecting argument that higher level administrative official was
bound by ALJ's decision); McCann v. Califano, 621 F.2d 829, 831 (6th Cir. 1980), and cases
cited therein (sustaining rejection of ALJ's recommended decision by higher level administrative review
body).
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FACTUAL BACKGROUND
The facts underlying this case are set forth in considerable detail by the ALJ in the
R. D. & O. at pages 3-12. Summarized in relevant part, they are as follows:
Schulman was hired by Clean Harbors on August 1, 1994, as a Class A Hazardous
Waste Transporter. At the time of his employment, Schulman had been hauling chemicals for
approximately seven and one-half years. Clean Harbors is an environmental services company that
transports, stores and disposes of waste materials. Schulman's job required him to haul waste from Clean
Harbors' customers' facilities to other sites for treatment and disposal. Schulman's job description also
required him to regularly inspect his vehicle and report any equipment defects to the company on a Vehicle
Inspection Report (VIR).1
1 Under Clean Harbors' Transportation
Manual, drivers were responsible for completing a VIR before and after each trip. The purpose of a VIR
is to apprise management of equipment defects. VIRs must be completed whether or not there are defects,
and if there are defects noted, the driver is required immediately to inform an appropriate management
official, who must ensure that the defect is repaired prior to the dispatch of the vehicle. CX 14B-C.
A driver may use the previous day's VIR for the current day's work if no defects are noted on the report and
the driver is satisfied that the vehicle is in safe operating condition. R. D. & O. at 12.
2 Each day Gager reviewed the next
work day's schedule for pick-ups and deliveries, and at that time assigned drivers, trips, trucks and trailers.
T. 514-15.
3 Gager testified that this was not the
first time that the company's drivers had been informed of the company's policy with regard to trailer
switching. T. 518.
4 We construe Schulman's argument
to suggest that he was concerned at the time of his assignment about violating the hours of service rules. The
"hours of service" rules, codified at 49 C.F.R. §395.3, state that a driver may not drive
more than 10 hours following 8 consecutive hours off duty or for any period after having been on duty 15
hours.