DATE: April 21, 1994
Case No. 94-STA-10
In the Matter of
ASSISTANT SECRETARY OF LABOR
FOR OCCUPATIONAL SAFETY AND
HEALTH, and KENNETH D. MILLER,
Prosecuting Parties
vs.
BRENNER ICE, INC., and MICHAEL
MAZUREK, President,
Respondents
DECISION AND ORDER
(Default)
On December 13, 1993 this matter was duly set for trial on
January 10, 1994 in Seattle, Washington. On January 10, 1994 the
case was called for trial. Cathy Barnes, Esq. appeared on behalf
of the prosecuting parties but no one appeared for respondents.
A record was made without the respondents' participation. Ms.
Barnes introduced a letter, ostensibly from Mr. Michael Mazurek,
received by her office in response to my order. (Govt. Ex. 1,
attached to transcript of proceedings.) I infer that respondents
had notice of my order of December 13, and so find.
The prosecuting parties made a prima facie case that
the "Secretary's Findings" dated October 20, 1993 and
signed by James W. Lake, Regional Administrator, Occupational
Safety & Health Administration, Region X, were accurate. A copy
of said findings is attached hereto and incorporated by this
reference.
On January 19, 1994, pursuant to 29 CFR Part 1978 and 29 CFR
§18.39, I issued an Order to respondents ordering them:
"to show cause, if any, why you failed to
appear at the scheduled trial of this matter
on January 10, 1994, at 2:00 P.M., in
Seattle, Washington, and why a default
judgment should not be entered against you.
[PAGE 2]
"Such cause must be shown in writing
addressed to the undersigned and received in
this office no later than at 5:00 P.M. on
February 4, 1994."
No response to said order has been received.
On the basis of the evidence presented at the trial I find
that the attached Secretary's Findings are true, that Kenneth D.
Miller was fired by Brenner Ice, Inc. and Michael Mazurek, its
president, in violation of §405 of the Surface
Transportation Assistance Act of 1982, and that said respondents
are indebted to said Kenneth D. Miller for lost wages from March
15, 1993 through September 5, 1993, at the rate of $650 every two
weeks, less $170 that Miller earned elsewhere during this period,
plus interest at 7% annually, compounded quarterly. (March 15 -
September 6 = 25 weeks. $650 every 2 weeks = $325 per week.
$325 x 25 weeks = $8,125. $8,125 - $170 = $7,955. $7,955 x
25/52 x .07 = $267.72. $7,955 + $267.72 = $8,222.72.)
ORDER
Respondents shall pay Kenneth D. Miller $8,222.72 plus
interest at the rate of 7% per annum, compounded quarterly, from
September 6, 1993 until paid.
Respondents are further ordered to expunge from Kenneth D.
Miller's personnel records any adverse references to his
discharge or to any protected activity.
Thomas Schneider
Administrative Law Judge
U.S. Department of Labor Occupational Safety & Health
Administration
1111 Third Avenue - Suite 715
Seattle, Washington 98101-3212
In the matter of:
[PAGE 3]
Brenner Ice, Inc., and Kenneth D. Milier
Section 405 Complaint, Case File No. 0-1960-93-014
STAA 506
SECRETARY'S FINDINGS
Pursuant to Section 405 of the Surface Transportation Assistance
Act of 1982 (hereinafter "STAA") (49 U.S.C. 2305), complainant,
Kenneth D. Miller, filed a complaint with the Secretary of Labor,
alleging that respondent, Brenner Ice, Inc., discriminatorily
discharged complainant for refusing to operate a vehicle when
such operation constituted a violation of a federal regulation
applicable to commercial motor vehicle safety. The respondent
denied these allegations. Following an investigation of this
matter by a duly authorized investigator, the Secretary of Labor,
acting through his agent, the Regional Administrator for the
Occupational Safety and Health Administration, Region X, pursuant
to Section 405 of the STAA and the Secretary's Order 9-83, 48
F.R. 35736 (August 5, 1983), and delegation of authority in
Chapter X of the Field Operations Manual, OSHA instruction CPL
2.45A makes the following findings:
1. (a) Respondent, Brenner Ice, Inc., is engaged in
intrastate trucking operations and maintains a place of business
in Granite Falls, Washington. In the regular course of this
business, respondent's employees operated commercial motor
vehicles in commerce principally to transport cargo.
(b) Respondent is now and, at all times material herein,
has been a person as defined in Section 401(4) of the Act (49
U.S.C. 2301(4)).
2. (a) In approximately July 1991, Brenner Ice, Inc., hired
complainant, Kenneth D. Miller, as a driver of a commercial motor
vehicle, a truck having a gross vehicle weight rating in excess
of 10,000 pounds.
(b) At all times material herein, Kenneth D. Miller was
an employee in that he was a driver of a commercial motor vehicle
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
vehicle safety (49 U.S.C. 2301(2)(A)).
3. (a) On or about August 12, 1993, complainant filed a
complaint with the Secretary of Labor alleging that respondent
[PAGE 4]
had discriminated against him in violation of Section 405 of the
Act (49 U.S.C. 2305). This complaint is timely filed.
(b) 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 has
determined that there is reasonable cause to believe that the
respondent has violated Section 405(b) of the STAA.
4. On or about March 15, 1993, respondent notified
Kenneth D. Miller that he was discharged from employment as
of March 15, 1993, principally because he had refused the
customer service manager's order to make two additional
deliveries on March 15, 1993. At approximately 2:00 a.m., on the
morning of March 15th, Mr. Miller picked up his delivery truck at
respondent's ice plant for the purpose of starting his delivery
route for that day. Attached to his route scheduling was a note
directing him to stop at Eagle Truck and Equipment repair to have
an oil leak checked on the truck's right rear wheels. After he
had completed his deliveries, he stopped at the repair garage as
he had been directed. After a mechanic removed the right rear
wheels, Mr. Miller saw the brake lining covered with oil, and he
observed that parts of the brake lining were broken or missing.
ln response to respondent's telephone page, Mr. Miller contacted
respondent by telephone at which time he was directed to make two
more deliveries. Mr. Miller notified respondent he would not
accept the assignment because the brakes on his truck were in
need of repair.
Mr. Miller refused to operate his vehicle on the afternoon
of March 15, 1993, when such operation would have constituted a
violation of the U.S. Department of Transportation's Rules and
Regulations concerning "Brakes" which provide that the "The brake
lining on every motor vehicle shall be so constructed and
installed as not to be subject to excessive fading and grabbing
and shall be adequate in thickness, means of attachment, and
physical characteristics to provide for safe and reliable
stopping of the motor vehicle," (49 C.F.R. 393.47). Mr. Miller's
refusal to operate his vehicle in contravention of a federal
regulation applicable to motor vehicle safety is activity
protected by Section 405 of the STAA. Consequently, respondent's
discharge of Mr. Miller for his engaging in activity protected
under the STAA constitutes a violation of Section 405(b) of the
STAA.
5. Mr. Miller obtained new employment commencing on
September 6, 1993, and he is not interested in returning to
work for respondent. Mr. Miller had a temporary job wherein he
[PAGE 5]
earned a gross amount of $170.00. Complainant's backpay is to be
calculated at the rate of $650.00 for each two-week pay period,
less his interim earnings of $170.00, plus 7 percent interest,
from the date of his discharge March 15, 1993, to September 6,
1993.
Date 10/20/93 James W. Lake
Regional Administrator
Occupational Safety &
Health Administration
Region X
U.S. Department of Labor
ORDER
Pursuant to Section 405(c)(2)(A) of the Act, the Regional
Administrator, in accordance with the Findings made herein,
orders respondent, Brenner Ice, Inc., to compensate complainant
for backpay in an amount based on the terms of Paragraph 5 of the
Findings and to expunge from his personnel records any adverse
references to his discharge or any protected activity.
Date 10/20/93 James W. Lake
Regional Administrator
Occupational Safety &
Health Administration
Region X
U.S. Department of Labor
