In fact neither Rau nor
McCracken testified that they observed such behavior. Rather, East testified that he had two
concerns about the incident. First, there was no bus to transport people to the casino; and
second, the driver made the situation worse by "heightening the tensions of the
customers" instead of attempting to calm them through an apology or explanation. (Tr.
345)
Rau's written report to East states that Complainant became very loud
and pounded on the desk while talking on the telephone in the bus waiting room, and that he
continued to be upset when he came out from the waiting room, announcing that he couldn't
drive the bus and that the passengers should be sent to the casino on a back-up bus that was
present at Green Mountain. Her report continued that when the customers started coming in to
see why the bus was late, Complainant told them that the back-up bus should take them, and
they should telephone Respondent and complain. The report concluded that the passengers
became angry and in reaction, Rau gave them a free pass.
Rau's testimony is consistent with her written report. She testified that
Complainant walked in to the ticketing office reception area and asked if he could use the
phone. Rau did not notice whether Complainant was angry as she was busy on the phone. (Tr.
297) Rau directed him to the telephone in a back office. (Tr. 280) She heard Complainant
talking on the phone in a loud voice and banging on the table about four or five times. The
conversation lasted about five minutes. She heard Complainant say that he would not drive the
bus because it was unsafe. (Tr. 309) Rau testified that Complainant came into the lobby area
looking very angry about the same time some of the bus passengers arrived. (Tr. 277) Rau
heard Complainant announce to the passengers that he was not going to drive the bus, and she
observed the passengers respond in anger. "Gamblers are very strange people. When they
want to go, they want to go. They don't have a whole lot of patience." (Tr. 278) She felt
that the Complainant made the situation worse by telling the passengers that they should
telephone Marco, the owner of Respondent Company, and Von Dreele to complain. (Tr. 278)
Rau reacted by placing a telephone call to Von Dreele, telling him that the passengers were
upset that they could not get on the bus, and requested that another bus be sent over as soon as
possible. (Tr. 282, 291) Von Dreele agreed to send another bus as soon as possible, and asked
to speak to the Complainant. (Tr. 292, 306, 307) The replacement bus was late because the
driver lost his way. (Tr. 308, 417) Rau testified that the commotion lasted about thirty
minutes; that the passengers calmed down when she apologized profusely, assured the
passengers another bus was on its way, and gave out free bus passes. (Tr. 283-4) Rau
portrayed the passengers as upset and angry when the Complainant told them that he had been
instructed but refused to drive an unsafe bus. (Tr. 288)
Teresa McCracken's testimony was particularly cogent. McCracken was
critical of the way that the Complainant interacted with the passengers from a customer service
viewpoint. She offered the opinion that the passengers might not have reacted so angrily if
Complainant had handled the situation by apologizing to the passengers for not being able to
drive the bus to the casino, and assuring that the bus company would rectify the situation.
"...it sometimes isn't necssarily what you say, but how you say it." (Tr. 315, 316)
As previously stated, the record is unclear on what information Von
Dreele had regarding Complainant's conduct at the ticketing office on November 12. The
record shows that Von Dreele talked only to East before terminating the Complainant on
November 13. Also, Rau testified that she did not submit her report to East until after East had
talked to Von Dreele. Nevertheless, assuming that Von Dreele's knowledge about
Complainant's conduct at the time he fired Claimant was equivalent to the information as
developed at the hearing, the record reveals that the passengers' anger was not a reaction to
intemperate conduct by Complainant but to his blunt and impolitic message, that is, the bus on
which they were passengers would not continue on to the casino, that the bus company was
insisting he drive the bus even though it was unsafe, and that he did not know if and when a
replacement bus would arrive. As inferred by McCracken, Complainant could have shown
more tact and could have shown more concern for the passengers. He could have been
apologetic when he announced that he had been pulled off the schedule and would not take the
bus to the casino. He could have told the passengers that a replacement bus was on its way.
He could have refrained from suggesting that the passengers complain to the Respondent, and
he did not have to point out the back-up bus setting in the Green Mountain parking lot. In
effect, as expressed by McCracken, he could have been more customer oriented.
The Secretary has addressed intemperate language and impulsive
behavior associated with the exercise of STAA rights. Kenneway v. Matlack, Inc .,
Case No. 88-STA-20, (Sec'y 1989, slip op. at 6-7, 10-13); Ertel v. Giroux Brothers
Transportation Co ., Case No. 88-STA-24, (Sec'y 1989, slip op. at 20-21, 30-31)
Cf. Dunham v.Brock , 794 F.2d 1037 (5th Cir. 1986) (employee protection
provision of Energy Reorganization Act). In such cases the Secretary has considered labor
relations precedent. The "well settled" standard employed under the National
Labor Relations Act requires balancing the right of the employer to maintain shop discipline
and the "heavily protected" right of employees to bargain effectively: to fall
outside statutory protection, an employee's conduct actually must be "indefensible under
the circumstances." NLRB v. Southwestern Bell Telephone Co ., 694 F.2d
974,976-977 (5th Cir. 1982). See Reef Industries, Inc. v.NLRB , 952 F.2d 830,
836-838 (5th Cir. 1991) (satirical letter and tee-shirt were not so offensive as to lose protection
"when not fraught with malice, obscene, violent, extreme, or wholly unjustified");
NLRB v. Lummus Industries, Inc ., 679F.2d 229, 233-235 (11th Cir. 1982)
("allegedly false and defamatory statements" made in context of concerted
activity"will be protected unless they are made with knowledge of their falsity or with
reckless disregard for their truth or falsity"). Moreover, "an employer may not rely
on employee conduct that it has unlawfully provoked as a basis for disciplining an
employee." NLRB v. Southwestern Bell Telephone Co ., 694 F.2d at 978-979.
See NLRB v. Steiner film, Inc ., 669 F.2d 845,851-852 (1st Cir. 1982),
citing Trustees of Boston University v. NLRB , 548 F.2d 391, 392-393 (1st Cir.
1977)("insubordination was an excusable, if a regrettable and undesirable, reaction to the
unjustified warning . . . received just minutes before," and the discharge therefore was
improper).
Under the reasoning employed in the above cases, and particularly in the
STAA Kenneway and Ertel cases, Complainant's behavior at the ticketing
office in reaction to the Respondent's failure to provide a different bus or otherwise rectify the
windshield washer problem neither removes statutory protection nor provides Respondent
with a legitimate, nondiscriminatory motivation. Respondent's allegations that the
Complainant engaged in an "almost ballistic" tirade or that Complainant
"used foul language" has no support in the record. Rau testified that Complainant
banged his fist on a table while he was in the ticket room on the telephone with Von Dreele,
but there is no showing that the passengers had yet entered the Lobby or were within hearing
range of the ticket office lobby. In reality, the passengers' anger was not caused by
Complainant's behavior. Their anger and any hostility toward Respondent or Harvey's Casino
was a natural reaction to the unavailability of the bus for which they had purchased a pass to
take them to the casino. That anger may have been aggravated by Complainant's
announcements as his statements implied an indifference to the passengers plight on the part of
Respondent and Harvey's. But his statements were not so indefensible under the circumstances
that they remove him from the protection afforded under the STAA. In proffering
Complainant's behavior, Respondent has failed to meet its burden to produce evidence that
Complainant's discharge was motivated by a legitimate, nondiscriminatory reason.
Complainant's behavior was not Respondent's "reason" for discharge and is not
legally sufficient to justify judgment in its favor. Texas Dept. of Community Affairs v.
Burdine , 450 U.S. at 255.
Complainant has succeeded in establishing a prima facie case of
unlawful discrimination under the STAA, and Respondent has failed to rebut that case.
DAMAGES
Complainant was unemployed from November 13, 1997 the date on
which his job was terminated by Respondent, until he took a job as a truck driver with Stevens
Transport on December 21, 1997. He worked at Stevens until January 10, 1998. Complainant
left employment with Stevens because degenerative arthritis in his left knee caused him
problems driving over the road. Complainant relocated to Florida and took a job with Mears
Transportation on January 26, 1998 as a passenger bus driver. Complainant's earnings from the
time he was fired on November 13, 1997 until the March 24, 1998 hearing were appoximately
$2,923.95. Department of Labor Exhibit 19 shows Complainant's wages during the period as
$2,623.95 plus unknown wages for a period of employment from January 4, 1998 to January
10, 1998. $300.00 is set as wages for that period based on documentation showing the amount
of $300.00 earned during equivalent periods of December 21 to December 27, 1997 and
December 28, 1997 to January 3, 1998.
The Prosecuting Party argues in its post hearing brief that the
Complainant worked sixty hour weeks during his employment with the Respondent, therefore
his loss of earnings should equate to a loss of wage earned over a sixty hour work week.
However, the Complainant did not testify to working a sixty hour work week, and the record is
otherwise void of evidence of same. PPX 13 is Complainant's last pay stub and it shows 75.75
hours of work. Complainant testified that was paid every two weeks. There is testimony that
the Complainant started work on November 12, 1997 at 6:00 a.m. and would have worked until
6:00 p.m. had he not been forced to return to the office. However, there is no evidence that
such a twelve hour work day was either typical or unusual. Thus Complainant is assumed to
have worked a 40 hour work week.
Complainant 's loss of earnings because of the termination equates to
$3,916.05, or $6,840.00 ($9.50 per hour x 40 hour week x 18 weeks from date of firing to date
of hearing) he would have earned from Respondent had he not been fired minus the $2,923.95
that he did earn. Complainant also claims damages of $875.76 as the cost of his relocation to
Florida to take the passenger bus driver job with Mears Transportation. (Rental truck cost of
$500.85 + fuel cost of $283.47 + storage costs of $91.44).
Respondent argues that the Complainant took no steps to mitigate his
loss of wages. However, the record shows that the Complainant set up two or three job
interviews with prospective employers within days of his termination and accepted
employment and started training with Stevens Transportation within three weeks of his
termination. (Tr. 537, 564, EX 19) Complainant also testified that he relocated to Florida
because he had lost his job, his residence and car and he therefore considered his best interest
was to move in with his family in Florida. (Tr. 536) Complainant's explanation for his move
and the fact that the move resulted in part because of loss of job and loss of its income is
accepted.
Respondent also argues that unemployment compensation received by
the Complainant for three weeks should be subtracted from any damages due Complainant.
Respondent's argument is rejected as it has been held that unemployment compensation is not
deducted from a back pay award pursuant to the STAA. Moyer v. Yellow Freight System,
Inc., 89-STA-7 (Sec'y Aug. 21, 1995).
CONCLUSIONS OF LAW
1. The Surface Transportation Assistance Act governs the parties
and the subject matter.
2. Complainant has demonstrated that he was engaged in protected
activity when he refused to drive Bus number 16 on November 13, 1997 because the
windshield washer was inoperable on a day that his windshield was becoming progressively
more dirty from splashback and he was driving over mountainous terrain roads that were partly
covered with snow and ice and were wet with slush and water, as the evidence shows operation
of this vehicle would have violated 49 C.F.R. § 383.83 and the evidence shows
Complainant had a reasonable apprehension of harm to himself and the public.
3. Complainant presented sufficient evidence to raise the inference that
the protected activity was the likely reason for the adverse action.
4. Complainant has demonstrated that his employment with
Respondent was terminated as a result of his protected activity.
5. In proffering Complainant's behavior with the passengers at the
ticketing office on November 12, 1998, Respondent has failed to meet its burden to produce
evidence that Complainant's discharge was motivated by a legitimate, nondiscriminatory
reason.
RECOMMENDED ORDER
Based on the foregoing, the following order is recommended:
1. Respondent, Four Winds Inc., d/b/a People's Choice
Transportation, Inc., shall:
a. Pay directly to Complainant back wages, less interim
earnings, which sum is computed to be $3,916.05, and $875.76 in moving expenses;
b. Pay interest on the sum awarded to Complainant
calculated in accordance with 26 U.S.C.A §6621;
C. Expunge all adverse references to Complainant's termination from
employment from his personnel records with Respondent.
THOMAS M. BURKE
Dated: November 18, 1998
[ENDNOTES]
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