Fountain v. P&T Container Service, ARB No. 00-002, ALJ No. 1999-STA-9 (ARB Nov. 30, 1999)
[Caption on case shows wrong ARB No., see Errata]

U.S. Department of Labor

Administrative Review Board 200 Constitution Avenue, N.W. Washington, D.C. 20210

ARB CASE NO. 99-125
ALJ CASE NO. 99-STA-9
DATE: November 30, 1999

In the Matter of:

SEAN FOUNTAIN,
   COMPLAINANT,

   v.

P & T CONTAINER SERVICE,
SUBSIDIARY OF USA WASTE
SERVICES, INC.,
   RESPONDENT.

BEFORE: THE ADMINISTRATIVE REVIEW BOARD

Appearances:

For the Complainant:
   Michael F. Mimno, Esq., Andover, Massachusetts

For the Respondent:
   Paul R. Keane, Esq., Martin, Magnuson, McCarthy & Kenney, Boston, Massachusetts

   Complainant, Sean Fountain, filed a complaint under the employee protection provision of the Surface Transportation Assistance Act of 1982 (STAA), as amended, 49 U.S.C. §31105 (1994). He alleged that his employer, Respondent, P&T Container Service, violated the STAA's employee protection provision when it discharged him from his employment as a truck driver.

   After a hearing, the Administrative Law Judge (ALJ) issued a Recommended Decision and Order in which he found that Fountain had not met his burden of establishing that P&T discharged him because he engaged in activities protected under the STAA.

   The case is now before the Administrative Review Board for final decision. P & T Container Service filed a motion to accept its brief, which was submitted after the time for filing had expired. We grant the motion and accept the brief into the record.

   The record has been reviewed and we find that the ALJ's factual findings are supported by substantial evidence on the record as a whole, and therefore are conclusive. 29 C.F.R. §1978.109(c)(3) (1998); BSP Trans. Inc. v. United States Dep't of Labor, 160 F.3d 38, 46 (1st Cir. 1998). We accept the ALJ's credibility determinations, as well.

   On page one of the Recommended Decision, the ALJ cited to the STAA prior to a 1994 codification. See Pub. L. No. 103-272, July 5, 1994, 108 Stat. 745 ("An act to revise, codify, and enact without substantive change certain general and permanent laws, related to transportation . . . ."). The ALJ used the correct citation, 49 U.S.C. §31105, in the remainder of the Recommended Decision. Later in the decision, the ALJ mistakenly provided the text of the STAA as it existed prior to the 1994 codification. Accordingly, we correct the citation and the quotation on page 7 of the Recommended Decision as follows:

   Section 31105(a) provides:

(1) A person may not discharge an employee, or discipline or discriminate against an employee regarding pay, terms, or privileges of employment, because

(A) the employee, or another person at the employee's request, has filed a complaint or begun a proceeding related to a violation of a commercial motor vehicle safety regulation, standard, or order, or has testified or will testify in such a proceeding; or

(B) the employee refuses to operate a vehicle because

(i) the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety or health; or

(ii) the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle's unsafe condition.

(2) Under paragraph (1)(B)(ii) of this subsection, an employee's apprehension of serious injury is reasonable only if a reasonable individual in the circumstances then confronting the employee would conclude that the unsafe condition establishes a real danger of accident, injury, or serious impairment to health. To qualify for protection, the employee must have sought from the employer, and been unable to obtain, correction of the unsafe condition.

   The record fully supports the ALJ's well reasoned decision, and we adopt the attached ALJ's decision with the corrections noted above.

   SO ORDERED.

      PAUL GREENBERG
      Chair

      E. COOPER BROWN
      Member

      CYNTHIA L. ATTWOOD
      Member