DATED: April 6, 1994
CASE NO.: 93-STA-00044
In the Matter of
LAURENT PAQUIN
Complainant
v.
J. B. HUNT TRANSPORT, INC.
Respondent
BEFORE: Robert D. Kaplan
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This proceeding was commenced under the Surface Transportation
Assistance Act of 1982 (the "Act"), 49 U.S.C. § 2301, et
seq., based upon a complaint filed with the Secretary of Labor
alleging that J. B. Hunt Transport, Inc. (hereinafter Respondent or
Hunt) discharged Complainant in violation of Section 405 of the
Act, 49 U.S.C. § 2305.
I. Procedural Background
Complainant filed his complaint with the Secretary of Labor on
or about April 16, 1992. On August 3, 1993, after an investigation
was conducted, the Secretary of Labor issued "Secretary's Findings"
in which it was found that the complaint was without merit and
should be dismissed. (R 1)[1] On September 6, 1993 Complainant
filed objection to the Secretary's Findings and requested a formal
hearing.
On September 17, 1993 I issued a Notice of Hearing, schedul-
ing the hearing for October 6, 1993. The hearing was held before
[PAGE 2]
me on October 6, 1993 in New Brunswick, New Jersey. Complainant's
and Respondent's briefs were received on November 17 and November
24, 1993, respectively.
II. Contentions of the Parties
Complainant alleges that Respondent's termination of his
employment on December 18, 1992 after he refused to drive was in
violation of the Act because at the time he refused to drive he was
"out of hours" and was tired and needed rest. (TR 9, 165; Complain-
ant's Brief)
Respondent contends that it was not in violation of the Act
because its motivation for terminating Complainant's employment was
his refusal to drive until his dispute over his pay was resolved.
Respondent avers that it was not motivated by any protected activi-
ty by Complainant. (TR 14; Respondent's Brief)
III. Issues
1. Whether Respondent discharged Complainant in violation of
the Act.
2. If so, what is the appropriate remedy.
IV. Findings of Fact and Conclusions of Law
Respondent does not controvert that the parties come within
the jurisdiction of the Act, and based on the record I so find.
A. Summary of the EvidenceComplainant's Testimony
Complainant testified that on December 16, 1992[2] he drove
one of Respondent's tractor-trailers with a load of freight from
Indiana with a destination in Philadelphia, Pennsylvania. On the
evening of December 16, Complainant called his home terminal in
East Brunswick, New Jersey and left a "Voice Mail" message for
Respondent's dispatcher, stating that Hunt owed him for four hours'
shuttle pay (amounting to $40) for work performed a week or so
before. Complainant testified that he arrived at the receiving
customer's location in Philadelphia about 6:30 A.M. on December 17
and called the "computer" to leave a message that he had arrived.
However, the computer message was blocked, so that Complainant was
compelled to call the dispatcher. Complainant reached a substitute
[PAGE 3]
dispatcher who told him that the regular dispatcher said that
Complainant should not leave Voice Mail messages but should call
him personally. Complainant stated he was "annoyed" and "upset
when I got through talking with him" because he anticipated that
the extra call would put him further behind schedule. Complainant
finished unloading the trailer about 11:00 A.M. or noon on December
17. (TR 74-80)
Complainant testified that after unloading the truck on
December 17 he drove the empty trailer to Bordentown, New Jersey,
arriving about 2:00 P.M., and called the dispatcher in East Bruns-
wick. Complainant told the dispatcher that the trailer was unload-
ed, and asked to speak to someone about the $40 error in pay. The
call was transferred to Respondent's operations manager. Complain-
ant testified that he "didn't particularly like ... her [the opera-
tions manager's] attitude ... or her response, so I asked to speak
with the terminal manager." The terminal manager, Michael Scialpi,
got on the telephone and Complainant explained that he was owed $40
for past work. Scialpi said that he needed time to discuss this
with the fleet manager (another term for the dispatcher). Com-
plainant testified that he replied: "All right, I am not going
anywhere anyways." Scialpi responded in a loud, angry voice:
"What, you are not going anywhere? Where are you?" Complainant
testified that he asked Scialpi to lower his voice and Scialpi said
he would not, and again asked Complainant, "Where are you?"
Complainant testified he did not tell Scialpi where he was but,
rather, "At that I hung up." (TR 80-83, 104-105)
Complainant stated that at that time he had driven ten hours,
had had four hours sleep but nevertheless delivered the load in
Philadelphia. Complainant explained that if Scialpi had not raised
his voice he and Complainant "could have discussed everything in
its entirety," but that Complainant hung up on Scialpi because he
"didn't like [Scialpi's] attitude as far as raising his voice."
(TR 82) Subsequently, Complainant testified that when Scialpi
"started screaming, I said I am out of hours anyway and hung up."
Complainant conceded that he does not know whether Scialpi heard
him say he was out of hours. (TR 96, 107-109)
After hanging up on Scialpi, Complainant called Respondent's
operations headquarters in Lowell, Arkansas and told a secretary
about his conversation with Scialpi concerning the $40 error in
pay. Complainant also told the secretary he was not going anywhere
with the truck. The secretary replied, "Uh-oh," and asked Com-
plainant for the telephone number where she could reach him. In a
short while the secretary called Complainant and told him she had
[PAGE 4]
spoken with Scialpi who stated that Respondent was going to pay him
the four hours' pay and he should bring the truck to the East
Brunswick terminal, and they wanted to speak with him there.
(TR 82-83, 100-101)
Complainant arrived with the truck in East Brunswick about
6:00 P.M. on December 17, but was told Scialpi was not there. On
the morning of December 18, Complainant returned to the terminal.
Complainant testified that as he walked through the door of
Scialpi's office he stated, "I want you to know I am more than
willing to go back out and continue driving my truck." Scialpi
replied that he was not sure Complainant was the "type of guy" he
wanted to drive his truck and suggested that Complainant might
decide to leave the truck somewhere such as Oklahoma City. Com-
plainant testified that his mind was "whirling" because he did not
know why Scialpi did not want him driving the truck and it was a
long walk for Complainant from Oklahoma to his home in Massachu-
setts. Scialpi then told Complainant he had no right to say he was
not going to drive the truck, so long as Scialpi was not telling
him to do something illegal or immoral. Scialpi asked Complainant
if a similar situation arose in the future whether he would repeat
the same behavior. Complainant testified that he himself consider-
ed the existing situation to be one in which "I needed rest." He
therefore replied to Scialpi that he would refuse to drive again in
the same circumstances. Complainant then pulled out a tape
recorder and stated, "This will supervise our conversation for
future people who are reviewing the situation." Complainant stated
his name for the tape recording and asked Scialpi to do the same.
However, Scialpi gestured for Complainant to leave the office and
stated that Complainant should clean out the truck. Complainant
testified he understood that to mean that he was fired, and should
remove his belongings from the truck. (TR 84-87, 120-21)
Complainant left Scialpi's office, called the secretary in
Lowell, Arkansas and told her what had occurred. The secretary
asked that Complainant wait until the northeast regional manager,
Mr. Hanisch (or Hanschu), showed up. Complainant then asked
Scialpi if he would mind waiting for Hanisch to arrive. Scialpi
motioned for Complainant to come into the office, and he saw that
Hanisch was there speaking on the telephone. Scialpi began
explaining the situation to Hanisch and stated that Complainant had
refused a "central monitored load." Complainant testified that
such a load is for an important client and has top priority.
However, Complainant testified that he believed Scialpi was lying,
because Complainant had called the computer on December 17 before
speaking to Scialpi on the telephone and "there was no load on my
truck" scheduled to be picked up. (TR 87-90)
[PAGE 5]
Complainant testified that when Scialpi stated that he had
refused a load, "it sounded like a lie to me and it sounded like I
was going to be railroaded no matter what I said." Complainant
also explained that when Scialpi told him to clean out his truck
I s[aw] no point in saying anything. And he
[Scialpi] had no desire to know how many hours I
had worked the day before.
(TR 90) Complainant did not describe what else, if anything,
occurred in the presence of Hanisch.
Finally, Complainant testified: "I think if you check with DOT
[the U.S. Department of Transportation], they would [have told] me
to park the truck for another two days if they would review my
total logs." (TR 90)
Employer's Testimony
Michael Scialpi, manager of Respondent's East Brunswick, New
Jersey terminal, testified that on December 17 and 18 he had no
indication that Complainant had any complaint about being out of
hours or too fatigued to drive. So far as Scialpi knew, the only
matter about which Complainant was complaining was the failure of
Respondent to pay him $40 in wages for the week before the incident
under consideration. Scialpi testified that Complainant never
stated he had driven too many hours or was too tired to drive.
(TR 19-21, 26, 137, 138-140, 157)
Scialpi testified that the dispatcher informed him that
Complainant had refused to pick up a pre-assigned load in
Philadelphia on December 17 after his Philadelphia delivery. The
dispatcher said that Complainant told him that Complainant would
not move the truck until his complaint about the $40 was
straightened out. Further, Scialpi testified that in their
telephone conversation on December 17 Complainant stated he would
not tell Scialpi where he was and would not move the truck until
the pay issue was resolved. Scialpi directed Complainant to pick
up the freight and then bring the truck into the terminal. Scialpi
stated that in the meanwhile he would investigate the $40 question
and he would have an answer on that for Complainant upon his
return. However, Complainant stated that he would not move the
truck or tell Scialpi where the truck was until Scialpi gave him an
answer on the pay issue. Scialpi told Complainant that this was
[PAGE 6]
not acceptable, and Complainant hung up the telephone. (TR 23-27,
147-48)
Scialpi testified that in their meeting on December 18 Scialpi
gave Complainant the opportunity to retain his job by promising not
to "hold our truck hostage," not to refuse to say where he was
located and not to refuse to do assigned work. However,
Complainant refused to provide such a commitment. Scialpi
testified that Complainant was discharged because he had engaged in
this conduct and refused to disavow it in the future. (TR 23, 157-
58)
B. Discussion
Section 405(a) of the Act prohibits the discharge or other
action against an employee because the employee has filed a
complaint or instituted any action related to a violation of a
commercial motor vehicle safety rule, regulation, etc. Since it is
clear that at the time he was discharged Complainant had not filed
any legal action involving Respondent, I conclude that Section
405(a) is not applicable in this matter.
Section 405(b) of the Act provides:
No person shall discharge ... an employee ... for
refusing to operate a vehicle when such operation
constitutes a violation of any Federal rules, [or]
regulations ... applicable to commercial vehicle
safety or health, or because of the employee's
reasonable apprehension of serious injury to him-
self or to the public due to the unsafe condition
of such equipment....
Section 405(b) is applicable in the instant case because
Claimant alleges that his continued operation of the truck would
have violated the U.S. Department of Transportation's regulations
regarding the amount of time an employee may drive a commercial
vehicle in a given period. On the other hand, although Complainant
also states that he was tired and needed rest, I conclude that the
provision in Section 405(b) regarding apprehension of serious
injury relates only to injury which could be caused by unsafe
equipment and not to danger of injury due to driver fatigue.
Therefore, the "apprehension of serious injury" portion of Section
405(b) is not applicable in this case.
Complainant bears the burden of proving a violation of the
Act. In the Matter of Walter C. Stack v. Preston Trucking
Company, 86-STA-22 (Decision of the Secretary of Labor, 1987)
In order to
[PAGE 7]
prove that Respondent violated Section 405(b), Complainant must
establish that (1) his continued operation of the truck on December
17 would have violated the U.S. Department of Transportation's
regulations regarding the amount of time a commercial vehicle may
be driven in a given period, and (2) he refused to drive the
truck because he was "out of hours," and (3) Respondent
discharged him for such refusal.
It is not necessary to decide whether Complainant's continued
operation of the truck on December 17 would have violated the
maximum hours limitations of the Department of Transportation
because I find that Complainant has failed to establish either
element 2 or element 3 set forth above.
I find from Complainant's own testimony that his complaints
that he was out of hours, as well his complaint about fatigue, were
afterthoughts and not reasons he expressed prior to his discharge
for his refusal to drive the truck farther on December 17.
Complainant testified that the only time he informed Respondent
about an hours violation is when he told Scialpi "I am out of hours
anyway," and hung up the telephone. Complainant also concedes that
he does not know whether Scialpi heard this statement.
Scialpi, as noted, denies that Complainant mentioned being out
of hours or fatigued at any time prior to his discharge. At the
hearing I mentioned to Complainant that Scialpi denied that Com-
plainant told him about any problem other than the one involving
the $40 pay dispute. Complainant replied that Scialpi did not seem
"rational" and refused to lower his voice, and that
I was going to proceed and tell him that [i.e.,
about the other problems, but] I am not talking to
somebody who is yelling in my ear.
The next question to Complainant was: "So you are saying because he
[Scialpi] was upset with you, you didn't tell him about your
fatigue or the hours problem?" Complainant replied:
I had run out of patience, your Honor. I worked
about 22 hours at that point with only four hours
sleep ... And to have someone yelling at me on the
phone you might say is unacceptable. And my mind
started rolling and I didn't know whether I was
coming and going for a while. I don't know what
else you want me to say.
(TR 66)
[PAGE 8]
Based on the foregoing, I also discredit Complainant's testi-
mony that he had made an attempt to inform Respondent he was out of
hours or fatigued.
In conclusion, I find that Respondent's discharge was not
motivated by a complaint that Complainant was out of hours or
fatigued. I further find that the evidence fails to establish that
Respondent was significantly motivated to discharge Complainant
simply because he refused to drive the truck. Rather, the evidence
establishes that Respondent discharged Complainant because he
refused to reveal to Scialpi the location where he had Hunt's
tractor-trailer and he told Scialpi that he would not move the rig
until Respondent agreed to pay him the $40 in back wages he
claimed. As Respondent maintains, Complainant in effect held the
truck "hostage" in order to extract from it the $40. Complainant
concedes that, at the end, Respondent offered him an opportunity to
promise not to do this again, and that he refused to provide such
a commitment.
I therefore find that there is insufficient evidence to
establish that Respondent violated the Act in discharging
Complainant. Consequently, the complaint should be dismissed.
ORDER
The complaint of Laurent Paquin against J.B. Hunt Transport,
Inc., is dismissed.
ROBERT D. KAPLAN
Administrative Law Judge
[ENDNOTES]
[1] The following abbreviations are used herein: "C" denotes
Complainant's exhibit; "R" denotes Respondent's exhibit; TR
denotes the transcript of the hearing on October 6, 1993.
[2] All dates herein are in 1992 unless otherwise indicated.
