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| September 23, 2008 DOL Home > OALJ Home > Whistleblower Collection |
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USDOL/OALJ Reporter Office of Administrative Law Judges 50 Fremont Street, Suite 2100 San Francisco, CA 94105
DATE: March 18, 1999 CASE NO. 1998-STA-0034 In the Matter of
ASSISTANT SECRETARY OF LABOR
HARRY D. COTES,
v.
DOUBLE R TRUCKING, INC.,
William W. Kates, Attorney
Roger E. Ardnt, President
Before: ALFRED LINDEMAN
A hearing in this matter under section 405 of the Surface Transportation Assistance Act of 1982, 49 U.S.C. §31101, et seq., 29 C.F.R. §§1978.106-1978.109, was held on November 16, 1998, in Seattle, Washington, on the complaint of Harry D. Cotes, dated April 15, 1998, alleging that he was unlawfully discharged from his employment as a truck driver for the Respondent employer. [Page 2]
It is undisputed that Respondent, Double R Trucking, Inc., is a corporation engaged in a business affecting interstate commerce by virtue of its operation of commercial vehicles transporting wood chips and other products over public highways in the State of Washington, that the owner and president of Respondent is Roger Arndt, and that on April 15, 1998, Complainant Harry D. Cotes was assigned to operate one of Respondent's tractor-trailers with a licensed gross vehicle weight of 98,000 pounds to haul a load of wood chips from Shelton to Port Townsend, Washington. According to the essentially uncontradicted record, when complainant loaded his truck on the morning of April 15, 1998, its total weight was 95,600 pounds. He knew from having been cited by the Highway Patrol for driving the same truck with an overweight load on January 30, 1998, that the weight allowed under Washington State law was 94,000 pounds, and he had in fact appeared in court the day before, i.e., on April 14, and paid the sum of $352 for that citation. Thus, complainant first called Respondent Arndt by radio to report the overage, and then started a forklift in order to unload some of the chips so as to bring the load into compliance. However, Mr. Arndt arrived on the scene and directed complainant to stop and to take the load as it was, on the ground that there were no scales between Shelton and Port Townsend. When complainant refused to drive the overweight truck, Arndt told him to "consider himself fired" if he didn't want to do his job; complainant thus ceased work and asked to be laid off instead so he could qualify for unemployment benefits. See TR 10-33; CX 2, 4. It is noted that although Respondent Arndt testified that he subsequently measured the subject vehicle and determined it qualified to carry 97,500 pounds, he did not verify the vehicle's actual weight at the time of the subject events with complainant on April 15, 1998. See TR 54-57; CX 3. Finally, it is established that complainant, who had earned $11.00 per hour with Respondent, would have earned a total of $7,821.66 had he not been terminated on April 15, and that instead he earned a total of about $683.38 from other employers after he was terminated and before he began full-time attendance as a college student on September 21, 1998. Lastly, the record indicates that the Respondent deducted $281.00 of the $352.00 citation fine referred to above from complainant's pay. See TR 10-11; CX 7-8.
Section 405(b) of the Act provides in pertinent part:
[Page 3] Based on the undisputed evidence in this case, I find that complainant was discharged by the respondent's president, Roger Arndt, because of complainant's refusal to drive the assigned vehicle with its overloaded weight. As to whether the operation of the vehicle in such condition would have constituted a violation of any Federal rule, regulation, standard or order applicable to commercial motor vehicle safety, I find that the operation of the vehicle in the condition complainant refused to drive it would have constituted a violation of both State and federal law. It would have violated the specific State law as to weight, just as it evidently had when complainant was cited for driving an overloaded truck a few months earlier, see CX 4, and it would have violated Federal regulations that require operation in accordance with the State's laws and regulations, generally, and further require drivers of trucks and truck tractors to "examine the vehicle's cargo . . . and cause any adjustments to be made to the cargo . . . as may be necessary to maintain the security of the vehicle's load." See 49 C.F.R. §§392.2 and 392.9(b). I conclude, therefore, that complainant's termination in this case was a violation of section 405(b) of the Act. 49 U.S.C. §31105(b); see Yellow Freight System, Inc. v. Martin, 954 F.2d 353 (6th Cir. 1992).
Based on the record that complainant, as a consequence of his discharge on
April 15, 1998, sustained lost wages of $7,138.28 until he voluntarily began full-time student status
in September 1998, I conclude that the respondent is to pay complainant compensatory damages in
the amount of $7,138.28.1 Finally, in view
of the record regarding complainant's full-time student status, reinstatement is a moot issue and, in
my judgment, the other remedies proposed by the prosecuting party are not warranted based on the
totality of the record in this case. See 49 U.S.C. §31105.
SO ORDERED
ALFRED LINDEMAN
San Francisco, California
NOTICE: This Recommended Decision and Order and the administrative file in this
matter will be forwarded for review by the Administrative Review Board, U.S. Department of Labor,
Room S-4309, 200 Constitution Avenue, NW, Washington D.C. 20210. See 29 C.F.R.
§ 1978.109(a); 61 Fed. Reg. 19978 (1996).
1 It is noted in this connection
that I cannot conclude that complainant is entitled to reimbursement in this proceeding for the $281.00 that was
deducted from his pay as a result of the January 30, 1998, citation. That citation was not the subject of the complaint
in this action and there is no evidence that the deduction was in any way a form of retaliation for the events that are
the subject of this case.
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