DATE: November 29, 1993
CASE NO. 93-STA-41
IN THE MATTER OF
CHARLES V. AKE,
Complainant
v.
ULRICH CHEMICAL, INC.,
Respondent.
Appearances:
Charles V. Ake, Esq.
Pro Se
Douglas J. Heckler, Esq.
For the Respondent
Before: PAUL H. TEITLER
Administrative Law Judge
DECISION AND ORDER
This proceeding arises under the employee protection
provisions of the Surface Transportation Assistance Act of 1982,
49 U.S.C. §2305 (the Act), and the regulations promulgated
thereunder, 29 C.F.R. Part 1978.
Complainant, Charles V. Ake, timely filed a complaint with
the Secretary of Labor on February 23, 1993 alleging that the
Respondent, Ulrich Chemical, Inc. (Ulrich), discriminated against
him in violation of Section 405 of the Act. The Secretary,
acting through his duly authorized agents, investigated the
complaint and determined that there was no reasonable cause to
believe that Ulrich violated Section 405 of the Act.
By letter received on August 9, 1983, the Complainant
opposed the finding of the Secretary and appealed his
determination. A formal hearing was held on September 8, 1993,
in Indianapolis, Indiana, at which time the parties were afforded
the opportunity to present both documentary and testimonial
evidence. Since the parties formally waived the procedural time
[PAGE 2]
constraints, the record remained open until September 30, 1993
for the filing of original and reply briefs. The findings of
fact and conclusions of law as set forth in this decision are
based upon a thorough review of the testimony, evidentary record
and consideration of the written arguments of the Parties.[1]
ISSUE
1. Whether Ulrich Chemical, Inc.'s termination of the
Complainant, Charles V. Ake, was due to Mr. Ake's involvement in
an activity protected by the Act.
FINDINGS OF FACT
1. Respondent, Ulrich Chemical, Inc., is engaged in
interstate and intrastate trucking operations and maintains a
place of business in Indianapolis, Indiana. In the regular
course of this business, Respondent's employees operate
commercial motor vehicles in interstate commerce principally to
transport cargo.
2. Respondent, Ulrich Chemical, Inc., is now and at all
times material herein, has been an entity as defined in Section
401(4) of STAA (49 U.S.C. 2301(4)).
3. On or about September 23, 1985, Ulrich Chemical, Inc.,
hired Complainant, Charles V. Ake, as a driver of a commercial
motor vehicle, to wit, a tractor-trailer with a gross vehicle
weight rating in excess of 10,000 pounds.
4. At all times material herein, Charles V. Ake was an
employee, in that he was required to drive commercial motor
vehicles having a gross vehicle weight rating of 10,000 or more
pounds used on the highways in interstate commerce to transport
cargo, and in that he was employed by a commercial motor carrier
and, in the course of his employment, directly affected
commercial motor carrier safety (49 U.S.C. 2301(2)(A)).
5. On or about February 23, 1993, Complainant, timely,
filed a complaint with the Secretary of Labor alleging that
Respondents discriminated against him in violation of Section 405
of the STAA (49 U.S.C. 2305).
6. Complainant alleged he was discharged by Respondent for
complaining about unsecured chemical containers and safety
deficiencies on trucks. Mr. Ake was a driver representative on
[PAGE 3]
the Safety Committee of Ulrich Chemical, Inc from approximately
June, 1992 through the date of his termination on February 12,
1993.
7. Respondent alleged that Complainant was discharged for
careless work performance after progressive discipline failed to
correct his errors, and that Complainant was treated no
differently than other employees with similar performance
problems.
8. The Secretary, acting through his duly authorized
agents, thereafter investigated the above complaint in accordance
with Section 405 (c)(2)(A), (49 U.S.C. 2305 (c)(2)(A)), and had
determined that there was not sufficient evidence to believe that
the Respondent violated Section 405 of STAA.
9. The Secretary determined that the Complainant had
engaged in protected activity, and that he had received
progressive discipline, including a suspension and subsequent
discharge for three separate violations of company work rules
within a one year time frame. The Secretary further determined
that the preponderance of the evidence did not substantiate that
Complainant's discipline and final termination constituted
disparate treatment, in that other employees had also been
disciplined, up to and including termination, for violating
established company work rules.
10. The Secretary found that violation of established work
rules and regulations is not activity protected by Section 405 of
the STAA, and dismissed Charles V. Ake's complaint.
Testimony of Charles V. Ake
Mr. Ake testified that he was born on July 1, l936 and was a
high shool graduate. He is the holder of a 1-A fully endorsed
driving license for the State of Indiana. He started working for
the Respondent on September 23, 1985. He drove a chemical truck
for the Respondent. While driving he had about two accidents.
He had an accident in August 1991, slipping, twisting his leg on
his fuel tank after loading some drums. He notified Mr. Davis
that he had stopped at Chem Trex where he got his check. He did
not lose any work. TX 9-15.
The Company determined that this accident was Mr. Ake's
fault. He pursued an internal appeal within the company. He
stated that the DOT regulation §399.207 paragraph 2, stated
that the fuel tank was supposed to be 24 inches high and that it
was
[PAGE 4]
actually 26 inches high.
He testified that he was terminated on Feburary 23, 1993 and
thereafter he made a complaint to the Secretary of Labor for the
following reason:
During the course of my safety work, we had
several drivers who fell down in the trucks.
They were not strapped in properly. The
levels were not secured properly. I have had
the same problem on my truck, which I took to
Mr. Davis and was satisfied with. The other
drivers liked the situation, the way they
were loading our trucks. They put one guy
with the responsibility to load. In other
words, one man was loading the truck which he
was responsible for, which we had several
screw ups after that.
TX 20.
When asked to relate the safety violations that he
complained of, Mr. Ake stated:
Approximately around 1990, l99l, I had a
shoulder injury due to a palatte jack
malfunctioning, ...that you load and unload
your trucks with...I was unloading my truck
and when it finally let loose after raising
it up, it got me between the shoulder, my
shoulder was pinned between the side of the
truck and the pallet jack...the weight and
the wheels on the pallet jack wasn't working
right...I had Mr. Etten, and the safety man
at the time was Fred Gray, look at the pallet
jacks and try to get them fixed. Eventually,
I had to go to IOSHA(Indiana OSHA) and file a
complaint with IOSHA before they ever got
fixed...I lost two months work out of that.
TX 25,26,27.
He testified that he filed another complaint with IOSHA in
mid-1991 for harassment. TX 29-32.
Well, we had several incidents where the
[PAGE 5]
drivers were complaining about the way their trucks
was loaded.I was complaining about the way my truck
was loaded...the drums was loose. Some of them had holes
in them. There was leakage. And then, the safety meeting,
dated,...I think it was October, 1992...I brought up one of
the problems we were having with the tote tanks. We were
delivering swimming pools, and the tote tanks were being
pumped off...When you have to unload them, and
you have to unhook, hook up to a pump, they unhook from
one tank to a pump, there was spillage. We had a drum, or
a gallon can to put it into, but you couldn't catch it all.
Then you go to the next one and the stuff was leaking out
of the truck. We put Zorball and stuff on it, but you couln't
stop it at all. That was one of the areas I brought up on the
safety committee that some of our drivers had gotten hurt on.
He testified that a driver was hit in the eye with a hose.
TX 32.
He testified that there was an incident on May 5, 1992,
They had my truck loaded so tight, I couldn't
get the doors opened. I had to have another
driver come out and help me get the door
opened...Once we got the load it was
okay...It had nothing to do with driving the
truck. This was to get in there to unload
and get to the chemicals. That is why I say,
if there had been a spill, you couldn't have
gotten the door opened. If I was out on the
road, it wouldn't that way. I had to have
two guys help me.
TX 33,34,35.
Mr. Ake stated that this matter was corrected when he went
into the truck. TX 35.
When asked if he had another incident. He stated they were
having trouble getting the chock, the chock keeps the truck from
moving while being loaded. His truck hadn't been chocked several
times. He would bring these incidents up and they'd call
bitching about my job when it is a safety issue. He said he told
Mr. Davis and he was taking these conversations and putting them
all against him. He was talking with other drivers and their
concerns. He said that this matter was resolved. TX 36.
He testifed that another incident occured on November 18,
[PAGE 6]
1992. A driver had cylinders fall down on him because they
weren't strapped in, or if they were strapped in, the straps were
unloose. It was chlorine cylinders. The driver was not hurt.
TX 37.
He also testified that on November 23, 1992 he had two bad
drums on his truck, they were leaking. He went to the
supervisor, Kim Davis, that matter was resolved, but it happened
continuously after that. He was not injured as a result of this
incident.
TX 38.
On July 8, l991 he had a leak on his truck of nitric acid
due to a bad drum. Three drivers helped him get it changed. He
was not injured. TX 39.
Mr Ake stated that because he was on the safety committee,
and because these matters were brought to his attention, and he
took them to the Employer, he was subsequently discharged,
although he was engaged in a protected activity, being on the
safety committee. TX 39.
Mr. Ake stated that on December 9, 1992 he delivered the
wrong drum to Plainfield Water, this is when the problems really
started. This was a multiple load trip. He said the bill of
lading was not wrong. He delivered the drum to the sewage plant,
and Mr. Davis told him he delivered the wrong drum, another
driver had to pick it up and deliver it to the water plant. Mr.
Ake said that when he attempted to deliver the drum the water
plant said they did not order it, so he delivered it to the
sewage plant. He received a disciplinary letter for this
incident on January 12, 1993. TX 40-43.
On January 22, 1993, he delivered the wrong drum to Lin-El
in Morrisville. He did not see the numbers right. He received a
disciplinary letter, and a three day suspension. On February 8,
1993, he delivered the wrong waste. He was terminated on
February 12, 1993. TX 43,44.
Mr. Ake was cross-examined by Respondent's counsel. TX 45.
He stated that the accident of August 8, 1991 where he slipped on
the gas tank was investigated by the Company. He was assigned a
Class II counseling session because the Company found that it was
his fault. He requested an appeal. Steve Hiatt, the Company's
General Manager, and Kim Davis, Mr. Ake's supervisor, agreed that
it was his fault. EX 1; TX 46,47.
[PAGE 7]
He said that the Company, as a result of his note, changed
the height of the fuel tanks to 24 inches on December 13th.
He attended safety meetings once a month with the Company,
and he admitted the Company was willing to discuss these matters
and that on occasion changes were made. TX 50.
Mr. Ake stated that he contacted IOSHA relative to his
hurting his shoulder in 1990 and filed a complaint. Afterwards
he was fired. He filed no other complaints with them. TX 51. He
admitted that the Company told the drivers that it was their
responsibility to do a pre-trip safety inspection, both of the
vehicle and to make sure that the load is secure, and that the
truck is properly chocked at time of loading. When he spoke to
the Company regarding the trucks not being chocked properly, the
Company talked to the drivers and warehousemen to make sure the
trucks were chocked. TX 52.
He testified that if a driver reported a safety problem with
a truck it is not allowed out on the road until that safety
problem is fixed. TX 53.
Testimony of Kim Brian Davis
Mr. Davis testified that he supervised Mr. Ake, who was a
driver representative participant in the Safety Committee at the
Company, for approximately nine months. The Company employs 140
people in Indiana and has the Department of Transportation's
highest safety rating. He testified that the incidents testified
to by Mr. Ake were brought up to prevent a recurrence by changing
procedures. TX 57.
He testified that it was routine for drivers to report
discrepancies on their loads, not properly tightened, leaking or
misloaded, and that no disciplinary action was ever taken for
reporting these conditions. TX 59.
He testified further that he did not have knowledge that Mr
Ake went to IOSHA in l990, l99l.
The DOT regulations require the driver to check the items
that they can safety check from the rear of the truck to see if
the load is properly secured before they leave the plant, and if
they are given a separate bill of lading for each delivery.
TX 59-62.
[PAGE 8]
Employer's Exhibit 1, as admitted, it is the outcome of the
appeal of the slip on the gas tank. Mr. Ake was shown a copy of
EX 3, the rules and regulations of Ulrich Chemical, Inc. which he
admitted receiving. A copy of the counseling letter of December
9, 1992 was admitted as EX 4. The counseling leter dated January
29, l993 was marked EX 5. The February 15, 1993 letter
terminating Mr. Ake's employment was marked EX 6.
Mr. Davis testified that several employees were discharged
for incidents involving pick up and delivery of the wrong
material. He listed three other employees, not on the safety
committee, that were discharged for this reason. Mr. Davis
maintained that the paperwork was correct relative to the
Plainfield Water delivery and another driver had to be sent to
deliver the drum. Mr Davis said that Mr. Ake had the right,
according to the Company rules and regulations, to appeal his
firing, but he never did. Mr. Ake said that he appealed.
TX 69-71.
Mr. Davis could not recall if an appeal on a termination had
ever been successful. TX 73.
CONCLUSIONS OF LAW
This case arises under the Service Transportation Assistance
Act since, Complainant, Charles V. Ake was employed as an over-
the-road truckdriver. His employment with Respondent was from on
or about September 23, 1985 to February 12, 1993. Ulrich
Chemical, Inc. was engaged in the operation of commercial motor
vehicles in interstate commerce to transport cargo. 49 U.S.C.
§2301(2)(A). Mr. Ake alleges in his complaint under this
Act that he was fired by Ulrich Chemical, Inc. because of
protected activity as a driver representative of the company
safety committee. Therefore, the complaint falls within Section
405(b) of the Act which provides:
No person shall discharge, discipline, or in
any manner discriminate against an employee
with respect to an employee's compensation,
terms, conditions, or privileges of
employment for refusing to operate a motor
vehicle when such operation constitutes a
violation of any Federal rules, regulations,
standards or orders applicable to commercial
motor vehicle safety or health, or because of
the employee's reasonable apprehension of
serious injury to himself or to the public
[PAGE 9]
due to the unsafe condition of such equipment.
The unsafe conditions causing the employee's
apprehension of injury must be of such nature
that a reasonable person, under the circumstances
then confronting the employee, would conclude
that there is a bona fide danger of an accident,
injury or serious impairment of health, resulting
from the unsafe condition. In order to qualify
for protection under this subsection, the employee
must have sought from his employer, and have been
unable to obtain, correction of the unsafe condition.
49 U.S.C. §2305(b).
It is well established that for Mr. Ake to prove a prima
face case under Section 405, the evidence before me must
demonstrate that he was engaged in an activity protected by the
Act, that his employment was terminated by Ulrich Chemical, Inc.
and that Ulrich Chemical, Inc. was aware of his protected
activity when it took the adverse action. Moon v. Transport
Drivers, Inc.. 836 F.2d 226 (6th Cir. 1987); McGavock v.
Elbar, Inc., 86-STA-5 (Sec'y July 9, 1986); Moyer v.
Yellow Freight Systems, Inc., 89-STA-7 (Sec'y November 21,
1989), aff'd in part and rev'd in part on other grounds, sub.
nom., Yellow Freight Systems, Inc. v. Martin, 954 F.2d 353
(6th Cir. 1992), citing Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248 (1981) and Mt. Health City School
District Board of Education v. Doyle, 429 U.S. 274 (1977).
If the Complainant satisfies this requirement, then the
evidentiary burden shifts to Ulrich Chemical, Inc. to prove that
Mr. Ake was discharged for a legitimate non-discriminatory
reason. The evidence produced by Ulrich Chemical, Inc. to rebut
the presumption of discrimination only has to raise a genuine
issue of fact as to whether discrimination actually occurred; it
does not have to prove at this stage that it was actually
motivated to fire the complainant because of the proffered
reason. Burdine, 450 U.S. at 454, 455. Mr. Ake must then
prove that Ulrich's explanation for terminating his employment is
not the "true reason."
Mr. Ake argues that he was terminated relative to his duties
as a driver representative on the Ulrich Safety Committee and for
his raising complaints relative to safety. However, the evidence
of record convinces me that Mr. Ake was not terminated for
engaging in activities protected under the Act.
Mr. Ake has acknowledged that Ulrich drivers are responsible
for checking the loads on their trucks, and the safety of their
vehicles prior to going out on the road. He also acknowledged
that Ulrich drivers are also responsible for accurately
delivering chemicals to customers as required on the bill of
lading.
Ulrich drivers are given "Work Rules and Regulations." EX 6.
Mr. Ake acknowledged receiving a copy of EX 6. Drivers are
required to abide by the work rules and regulations. Employess
who deviate from the rules are subject to discipline.
I find Ulrich Chemical, Inc's argument persuasive that:
Mr. Ake's employment was terminated after he
carelessly delivered or picked up the wrong
material on three occassions during a short
period of time. Specifically, on December 4,
1992 Ake delivered the wrong material to a
customer and received a written warning
(Employer Exhibit 4). On January 22, 1993,
Ake again delivered the wrong material to a
customer. Pursuant to the Company's
progressive discipline policy, Ake received a
three day discipline suspension (Employer
Exhibit 5). On February 8, l993 Ake picked
up the wrong material from a customer.
Because this was his significant, similar
rule violation in a short period of time, his
employment was terminated. (Employer Exhibit
6).
I also find the testimony of Mr. Kim Davis credible that
other employeees have been similarly discharged for making
loading, delivery or pick-up mistakes.
ORDER
For the above-stated reasons, IT IS HEREBY ORDERED
that the complaint of Charles V. Ake under the Surfact
Transportation Assistance Act is Dismissed.
Paul H. Teitler
Administrative Law Judge
[END NOTES]
[1] / The following references will be used herein: "CX"
designates Complainant's exhibits; "SX" designates the
Secretary's exhibits; "EX" designates Employer's exhibits; and
"TX" designates pages from the transcript of the hearing held
before me on September 8, 1993.
