DATE: January 12, 1995
CASE NO.: 94-STA-0016
IN THE MATTER OF:
KENNETH C. CLIFTON,
Complainant
v.
UNITED PARCEL SERVICE,
Respondent.
APPEARANCES:
Mary A. Parker, Esquire
Jeannie Joe, Esquire
For the Complainant
Charles Hampton White, Esquire
For the Respondent
BEFORE: PAUL H. TEITLER
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This action arises under the Surface Transportation Assistance
Act of 1982 (the Act), 49 U.S.C. §2305, and the regulations
promulgated thereunder, 29 C.F.R. §1978. Section 405 of the
Act provides protection from discrimination to employees who report
violations of commercial motor vehicle safety rules or who refuse
to operate a vehicle when the operation would be a violation of
these rules. This legislation is designed to promote safety on the
highways by protecting employees from discriminatory action due to
an employee's engagement in protected activity.
ISSUES
(1) Whether the Complainant filed a timely complaint with the
United States Department of Labor.
(2) Whether the Complainant is a protected person under
Section 405.
[PAGE 2]
(3) Whether the Complainant engaged in protected
activity.
(4) Whether the Complainant was subject to adverse
action by the Respondent.
(5) Whether the Respondent was aware of the Complainant's
protected activity.
(6) Whether there is a causal link between the Complainant's
protected activity and the adverse action of the
Respondent.
Procedural History
In January 1990, Kenneth C. Clifton, the Complainant, filed a
telephone complaint with Tennessee Occupational Safety and Health
Administration (TOSHA). He spoke with Steve Hawkins (Hawkins), a
compliance officer. He later filed a complaint at the TOSHA
office. Hawkins subsequently conducted an inspection
of the United Parcel Service (UPS) site at White's Creek.
The Complainant was discharged on April 24, 1990 for
just cause, sexual harassment. EX[1] 15. After receiving the
discharge notice, the Complainant filed a grievance with the
International Brotherhood of Teamsters Local Union 480 (Union or
Teamsters) and contacted TOSHA asserting that the discharge was in
retaliation for his filing the TOSHA complaint. TR at 38. The
Panel upheld his grievance and he was reinstated.
The Complainant was discharged again on August 27, 1990 for
reckless endangerment. EX 19. He again filed a grievance with the
Teamsters. The grievance was again upheld and the Complainant was
reinstated.
The Complainant was discharged a final time on March 18, 1991
for an act of dishonesty. EX 25. He filed a grievance. The
grievance was denied at the local hearing and at the panel. The
Complainant then contacted TOSHA and told Mr. Robert Bradford
Cooper (Cooper) that his grievance had been denied. Cooper assured
him that TOSHA would investigate. TR at 133. He received a letter
from Commissioner White, Tennessee Department of Labor, informing
him that TOSHA conducted an investigation and found his claim
without merit. He then contacted the United States Department of
Labor, Occupational Safety and Health Administration (OSHA) by
letter dated August 30, 1991 and requested them to investigate his
discharge. TR at 137.
[PAGE 3]
Testimony of Kenneth C. Clifton
The Complainant, Kenneth Clayton Clifton, testified on
September 21, 1994 in Nashville, Tennessee. He began working with
UPS in June 1978 and was last discharged on March 18, 1991. TR at
21, EX 25. He always worked part-time, about thirty-five hours per
week with two part-time job classifications. TR at 22. At the
time of his final discharge, he was working as a shifter and an air
driver. A shifter drives the tractors away from the dock after the
trailer has been loaded or unloaded. An air driver delivers the
overnight air packages.
He testified that he was discharged in 1981 because he failed
to double check packages to avoid missorts. He denied having any
other disciplinary problems until 1990. TR at 23.
In late January of 1989, Clay Harrell (Harrell), the
Complainant's immediate supervisor, told the Complainant about a
new procedure in which the shifter no longer checked the trailers.
TR at 24. The new procedure required the supervisor to check the
trailer and radio to the shifter when it was safe to depart. He
explained that prior to the change in the switching procedure, the
shifters were responsible for checking and ensuring that no one was
in the trailer before they drove the trailer away from the dock.
TR at 23-24.
The Complainant testified that he saw the potential for danger
with the new procedure and discussed this with Bill Shadelow
(Shadelow), warehouse supervisor. TR at 25. When the Complainant
did not hear back from Shadelow, he demonstrated to Harrell how an
individual could be injured. Harrell recommended banging on the
nose of the trailer. TR at 26. The Complainant felt this was not
adequate because an individual in the trailer may not hear the
banging over the other noises.
The Complainant testified that he reported the alleged safety
violations to TOSHA in January 1990, only after he had spoken to
four managers to no avail. He told his co-workers and his
supervisors, Joe Carlton, Harrell, and Keith Gill (Gill), "well, I
believe I'll have to go to OSHA to file a complaint to have this
stopped." TR at 27. In filing the complaint, he phoned TOSHA and
spoke with Hawkins. He then went uptown and filed the complaint.
Upon inspecting the UPS site at White's Creek, Hawkins issued a
citation and fined UPS three hundred dollars for the safety
violations. TR at 29; CX 7.
[PAGE 4]
The Complainant testified that in March 1990 he tried to make
a switch by visually checking the trailer before pulling away from
the dock. He stated that Carlton told him that he would be
discharged if he got out of his yardbird.
On April 2, 1990, the Complainant phoned Liberty Mutual
Insurance, the insurance company responsible for paying claims of
those injured on the job. He spoke with Jan Gatlin (Gatlin) and
told her of the alleged safety violations and that UPS had not
rectified the problem. TR at 31. Gatlin recommended that the
Complainant speak with the loss prevention department, and the
Complainant did. TR at 32. On April 4, 1990 the new procedure was
abandoned. The shifters reverted back to the previous method of
personally checking the trailers before pulling away from the dock.
Id. The shifters were required to sign a waiver stating
that they would visually check the trailers before they pulled
away.
On April 19, 1990 the Complainant was discharged for sexual
harassment. TR at 33. The charges were filed by Brenda Kay
Kennedy (Kennedy). The Complainant alleged that she was the
designer of the unsafe procedure involving the shifters. He
conceded that he made an inappropriate comment to her about her
sexual preference. TR at 34. He also made a comment about her
girlfriend working at the Sunday School. He denied saying anything
about writing letters to her girlfriend's school to get her fired.
TR at 89. When asked if he made the statement on the radio, he
answered, "as I recall, I don't remember saying it on the radio."
TR at 90-91. He stated that he made the statements because Kennedy
was harassing him about getting out of his yardbird to get a drink
of water and go to the bathroom. TR at 92.
The Complainant testified that he knew of other employees who
had made inappropriate comments to management and supervisors, but
knew of no one that was discharged or received a warning letter for
making such comments. TR at 92.
Upon being discharged, the Complainant notified TOSHA and
spoke with Robert B. Cooper (Cooper) about his discharge. The
Complainant asserted that he was discharged in retaliation for his
filing the TOSHA complaint. TR at 38. He testified that he does
not recall telling Peter Cheng (Cheng), the Teamsters business
agent, about his complaints to TOSHA or his assertion that the
discharge was in retaliation for the complaints. TR 99-100. The
Complainant filed a grievance with the Teamsters Union. They held
a panel, but the Complainant was not present as he could not afford
to attend. He was reinstated on April 19, 1990. TR at 38.
[PAGE 5]
The Complainant testified that beginning in 1989, after he
complained about the dangers inherent in the new switching
procedure, his supervisor, Mike Terrell (Terrell), followed him
"pretty much everyday that I worked." TR at 60. He testified,
"eighty percent of the time, every switch that I made, [Terrell]
was right behind me. Every switch I made." TR at 62. He
explained that Terrell's job was to observe all the switchers and
ensure that everyone was working properly. Id.
On August 27, 1990, the Complainant was discharged again. TR
at 39. This incident involved Terrell. Terrell was doing an on
the job survey and sat on a stadium seat on the hood of the
Complainant's yardbird. The Complainant testified that he asked
Terrell not to sit on the hood because it would not be safe.
Id. The Complainant claimed Terrell slid off the truck
because the ride was not smooth. The Complainant was discharged
for reckless endangerment.
After his discharge, the Complainant filed a grievance with
the Teamsters. A hearing was conducted in Daytona Beach, Florida.
TR at 63. At the panel, the Complainant did not tell that he filed
complaints with TOSHA. TR at 106, 116. He testified that Cheng
advised him not to tell the Panel about his complaints. TR at 106.
As a result of the panel's decision, he was reinstated on September
18, 1990 and received back pay. TR at 40.
On March 18, 1991, the Complainant was discharged a final
time. TR at 41. He was discharged for an act of dishonesty, more
specifically, being paid for time while he took an unauthorized
break. TR at 175. He argued that the National Master United
Parcel Service Agreement for August 1, 1990 through July 31, 1993,
page 102, Section 3 titled "Part Time - Relief Periods," provided
for a ten minute break for part-time employees. He testified that
the Agreement provided for a break between the first and third
hour. He stated that he had been an air driver for one and one
half years and did not know that he was not permitted to take a
break while on his run. TR at 126.
The Complainant testified that he began the day's shift on
March 15, 1991 at 8:00 in the morning, running next day air
packages. TR at 43. At 8:35 he made his first stop at the
Tennessee Teacher's Credit Union at 1400 Eighth Avenue, South. TR
46. The business did not open until 9:00. The Complainant put a
UPS notice on the door to show that he attempted to make the
[PAGE 6]
delivery. Id. He testified that he then delivered the
other packages. TR at 45. He explained that the fifteen minutes
between his second to last stop and his last stop were a result of
his having to collect and count $2,520.00 in cash collected for a
delivery. TR at 46-47. His last stop, at 10:30, was the Tennessee
Teacher's Credit Union. TR at 45. After his last stop, he
conceded that he went to the Pie Wagon Restaurant on Twelfth Avenue
to take his break. TR at 50. He testified that he had worked two
and one half hours and was therefore entitled to take a break
before 11:00. Id.
The Complainant testified that while he was at the Pie Wagon,
his supervisor at that time, Steve Burtnett (Burtnett) entered the
restaurant. TR at 55. Burtnett asked him what he was doing. The
Complainant answered that he was taking his ten minute break.
Id. Burtnett told him he was not permitted to take a break
on air time and that this was told to him at orientation. TR at
56. The Complainant testified that Burtnett knew he had not
completed orientation. Id. The discussion grew heated
before Burtnett finally left. The Complainant finished eating and
then went back to work. He conceded being at the Pie Wagon for a
total of fifteen to twenty minutes. He argued that if Burtnett had
not come in, he probably would have been there for only ten
minutes. Id.
The Complainant left the restaurant at about 10:50 and drove
back to UPS. TR at 57. After arriving at UPS, he completed his
paperwork, ensured the truck had plenty of gas, and parked it in
the line-up. Id. He then clocked out. The Complainant
testified that he clocked back in at 1164, about 11:35, to work his
second part time job in the warehouse. TR at 159. The time sheet
submitted for March 15, 1991 is clock stamped February 12. TR at
157, CX 6. The Complainant explained that the time clock was
stamping an incorrect date, but UPS was still using it because it
was recording the correct times. TR at 158. He testified that he
received the copies of the time card from Cheng. TR at 158.
The Complainant filed a grievance in regards to his March 18,
1991 discharge. A Panel was held in Daytona Beach, Florida. The
Panel denied his grievance and did not reinstate him. He called
Cooper and told him that his grievance had been denied. TR at 133.
Cooper informed him that TOSHA would investigate. On May 16, 1991,
he phoned Mr. Spurgon (Spurgon), legal counsel for TOSHA. TR at
133. Spurgon was aware of the Complainant's case and the decision
of the Panel.
The Complainant received a letter dated August 7, 1991 from
Commissioner White, Tennessee Department of Labor, stating that the
[PAGE 7]
Complainant's charges have been investigated and found to be
without merit. TR at 136; JX 3. The case was closed and not
subject to further review. The Complainant then spoke with Gill
who advised him to send a letter to OSHA within thirty days of
receiving Commissioner White's letter and ask them to investigate.
TR at 137. He spoke with Gill in Atlanta on August 23, 1991 and
received no response. This prompted him to write a letter dated
August 30, 1991 to the United States Department of Labor, OSHA, in
Atlanta. TR at 64-65. The Complainant sent a letter dated August
30, 1991 to OSHA requesting them to investigate his discharge.
The Complainant filed an 11(c) complaint with TOSHA on
September 20, 1990. TR at 143. He did not file a concurrent
complaint with OSHA because "TOSHA did not tell me that I had to
file it at the federal level, too." TR at 145. An entry on page
10 of his notes states that on August 23, 1991, Fred Deeley of OSHA
advised him that he had to file an 11(c) complaint with OSHA within
fifteen days of filing one with TOSHA. TR at 141; EX 29.
He did not file with the National Labor Relations Board
against the Teamsters Local 480 for not fairly representing him.
TR at 119. He did, however, write to Ron Kerry of the Teamsters in
Washington, D.C. TR at 119.
The Complainant testified that after the three most recent
discharges, he notified TOSHA within three to four days. TR at 63.
He told them that each discharge was in retaliation for his safety
complaints.
Testimony of James Allen Fryer
Mr. James Allen Fryer (Fryer) testified on September 21, 1994
in Nashville, Tennessee. He has worked with UPS for about fifteen
years. In March of 1991, Fryer worked in the same position as the
Complainant, delivering 10:30 air packages. TR at 185. He had
been delivering air packages for about six months when the Pie
Wagon episode occurred. TR at 191. He stated that if an air
driver started work at 8:00, 8:35 would be early for a downtown
stop because in the morning, before leaving the center, the drivers
had to sort the packages by order of their stop. TR at 196. He
testified that he would take a break after all the packages were
delivered. He would stop and call in to see if there was something
else that was misloaded or something needed to be picked up. TR at
188. When he stopped to make the phone call he would usually get
a drink. At the time the Complainant was fired, 10:30 air package
delivery was new. "No one ever said do not take a break or do take
a break." TR at 189. After the Complainant was discharged,
[PAGE 8]
however, managers and supervisors gave instructions about not
taking breaks. TR at 189. Those instructions had not been given
at any time earlier.
Testimony of Michael Louis Bochette, Sr.
Mr. Michael Louis Bochette, Sr. (Bochette) testified on
September 21, and 22, 1994 in Nashville, Tennessee. He has been
working for UPS for fourteen years. TR at 198. He has been a
union steward since his second year at UPS. TR at 199.
Bochette knew that the Complainant complained about the new
switching procedure. TR at 199. He overheard the Complainant
telling other managers about the dangers involved. TR at 200.
Bochette was in attendance at a meeting between the Complainant and
his supervisors where the Complainant said, "well am I going to
have to go to OSHA in order to get this solved." TR at 201.
Bochette tried to resolve the problem by speaking with his managers
and supervisors. TR at 199. The new procedure was utilized for
approximately nine to twelve months, before management returned to
the original procedure. TR at 449.
Bochette tells of the time he was accused of taking an
excessive break. He testified that he would clock in at 8:00 pm
and would go into the break room with the six or seven other part
time shifters. TR at 204. The yard controller knew the shifters
were in the break room and would call to them if she needed them.
Bochette said this was routine practice. TR at 204. While
Bochette was in the break room one night, Randy Dunn (Dunn), hub
manager of that shift, entered. Bochette, as job steward, had to
discuss some grievances with Dunn. Dunn said the break room was
not the place for such a discussion. Bochette responded that
instead of trying to resolve the problems, he would simply file the
grievances. TR at 204.
Dunn left and returned to the break room with Harrell,
Bochette's supervisor. TR at 205. Bochette testified that Dunn
told Harrell that he was stealing company time and had taken an
excessive break. Bochette further testified that Dunn wanted to
terminate him for this, but Bochette was not discharged and did not
receive a warning letter. TR at 205. He was the only part timer
in the break room that was reprimanded. TR at 206. Bochette
stated that he knew of no one else that was disciplined for
stealing time. TR at 219.
Bochette testified that after the Complainant filed the TOSHA
complaint, management treated him differently. TR at 208. He had
[PAGE 9]
a discussion with Terrell about the TOSHA complaint, but does not
recall specifically what was discussed. TR at 450. He also had a
discussion about the TOSHA complaints at Hooters with Bob Mannery,
the division manager of the feeder department, and Ron McClain, the
labor relations manager. TR at 449. He also testified that he
noticed Terrell observing the Complainant for more time than he
spent watching anyone else. Bochette stated that Terrell said to
him, "I'm out here to baby-sit Kenny Clifton." TR at 209.
Bochette testified that he saw Terrell on the hood of the
Complainant's yardbird on August 21, 1990. TR at 451. He had
never seen a manager ride on the hood of a yardbird before. TR at
451. Bochette also testified that he did not see the Complainant
speed up and brake suddenly. TR at 452. He explained that the
yardbird is a bad ride because the yard is uneven and the braking
system is crude. TR at 452. He had spoken with Terrell about the
incident. Terrell said it was ordered by Carlton. TR at 452.
Terrell never complained to Bochette of being injured. TR at 455.
Testimony of Robert Bradford Cooper
Mr. Robert Bradford Cooper (Cooper) testified on September 21,
1994 in Nashville Tennessee. He has worked for TOSHA for almost
twenty years. TR at 222. He is chief of standards and procedures.
TR at 223. His job entails handling all discrimination cases under
Tennessee Code Annotated 50-3-409 which is the state equivalent to
11(c) under the Federal Act. TR at 223.
The Complainant first contacted TOSHA when he spoke with
Hawkins, a compliance officer, and reported the safety violations.
TR at 223. He also filed a written complaint that was undated, but
was filed prior to February 1, 1990, the date of TOSHA's inspection
of the UPS center at White's Creek. TR at 224. The inspection
resulted in a citation dated March 1, 1990 for the violation of the
General Duty Clause, which is the state equivalent to Section
5(a)(1) of the Federal Act, and a fine of three hundred dollars.
TR at 224. UPS sent a letter to TOSHA dated March 16, 1990
indicating that UPS rectified the violation for which they were
cited. TR at 234; CX 7. The Complainant saw UPS' response and
challenged it.
At the request of the Complainant, TOSHA conducted a
discrimination investigation. When the Complainant was reinstated
in April 1990, TOSHA took no further action. The Complainant then
filed another complaint and the two complaints were consolidated.
TR at 232. TOSHA conducted an investigation. Cooper concluded
there was no violation under Section 50-3-409 of the Tennessee Code
[PAGE 10]
and recommended to Relus Fleming, General Counsel, that he dismiss
the complaint. TR at 232. During the investigation, Bochette and
Fryer were not interviewed. TR at 241-242. The only witnesses
interviewed were those provided by UPS. UPS also provided
documentation that the Complainant had received orientation. TR at
243. The training occurred, however, in 1978. TR at 244. The
complaint was dismissed by the Commissioner in a letter dated
August 7, 1991. JX 3. The Complainant then filed an 11(c)
complaint with regard to his ultimate dismissal. TR at 233.
Testimony of Steve Burtnett
Mr. Steve Burtnett testified on September 22, 1994 in
Nashville, Tennessee. Currently, Burtnett is a full time input
supervisor in the twilight hub at the UPS center at White's Creek.
TR at 255. In March 1991, he was an on-car supervisor at White's
Creek. He was responsible for fourteen drivers, their deliveries
and their dispatch. TR at 256. At that time, there were only two
air drivers at White's Creek, the Complainant and Fryer. Before
the drivers drove on their own, they completed a two day
orientation in which Burtnett explained the safe work methods, how
to drive safely, delivery methods, and that everything had to be
delivered by 10:30 am. TR at 267. During the two day orientation,
Burtnett also discussed the start schedule. TR at 268. He is not
sure whether he discussed breaks during the Complainant's training,
but when he was on the road with the Complainant, they did not take
a break. TR at 272. As of March 1991, Burtnett had been
supervising the Complainant and Fryer for four to five months. TR
at 258. The drivers load their own vans and are responsible for
arranging the sequence of the stops and filling out the delivery
record.
On March 15, 1991 Burtnett was on an on the job survey drive
with Tom Hill, another air driver. On their way to a delivery
stop, they drove by the Pie Wagon restaurant at 10:15 and saw the
UPS air van parked at the restaurant. When they reached their
delivery stop, Burtnett phoned the center to inquire whether a van
had broken down. TR at 276. There were no reports of a disabled
van.
Burtnett testified that the two of them finished delivering at
10:30 am and passed the restaurant again. TR at 276-77. The van
was still in the parking lot and had not moved since they last saw
the van fifteen minutes earlier. He further testified that they
drove to the van and checked it for packages. TR at 277. There
were no packages. Burtnett saw the Complainant sitting at a corner
[PAGE 11]
table in the restaurant.
Burtnett stated that he went into the restaurant and
confronted the Complainant. He told the Complainant that he did
not get a lunch or a break. TR at 277. The Complainant responded
that he did and Burtnett said he did not. Id. After their
conversation, Burtnett left, returned to the van, and drove to
their next delivery stop. TR at 278. Burtnett estimated that the
Complainant was parked at the restaurant for twenty-five minutes.
Burtnett testified that he was present at the hearing
regarding the grievance filed by the Complainant on April 30, 1991.
Also present were the Complainant, Hill, Cheng, and another
business agent. TR at 285. Burtnett also testified that at the
hearing the Complainant did not challenge the times that Burtnett
stated the Complainant was at the Pie Wagon. TR at 286. Burtnett
did not recall testifying that the Complainant had a three day
class orientation, nor did he bring his delivery record or other
documentation to establish that he had conducted two on the job
survey rides with the Complainant. TR at 292.
Burtnett testified as to the proper procedure regarding the
delivery sheet. The drivers should not write down the delivery
address on the record before the delivery. TR at 294. Drivers are
trained to write the address of the delivery on their walk back to
their vehicle. TR at 295. If a delivery can not be made, the
driver should write "NI 1." TR at 296.
Also, Burtnett testified that if the time clock is broken, it
is fixed immediately. TR at 299.
Testimony of Thomas Ben Hill
Mr. Thomas Ben Hill testified on September 22, 1994 in
Nashville, Tennessee. He began working for UPS in 1977. He has
worked as a truck driver for UPS since July 1987. TR at 312.
On March 15, 1991, he was doing an on the job survey air drive
with Burtnett who was showing him a new route to cover while the
regularly scheduled employee was out on medical leave. TR at 314.
He testified that as an air driver, he is not allowed to take a
break, but as a full timer, he is permitted to take a break after
the third hour and before the fifth hour. TR at 316.
Hill has delivered air packages for three years. TR at 336.
He also testified that most packages are pre-loaded according to
sequence numbers. TR at 333. The truck is supposed to be set-up
stop by stop in the order the packages will be delivered.
Id.[PAGE 12]
After a delivery run, there are administrative tasks that must be
accomplished before clocking out. The tasks include, among others,
turning in checks and counting the money received on cash on
delivery stops. The routine takes about twenty minutes, but the
drivers are allotted twenty-four minutes. TR at 335.
Hill testified that he learned how to correctly complete a
delivery sheet by being trained and retrained. TR at 338. He was
trained in a package car for five days. Id. Also, a
supervisor does an on the job survey ride about every quarter. He
also testified that on the delivery sheet, a driver marks "NI 1" to
indicate that he attempted to make a delivery but was unable to
deliver. TR at 337. The driver should then re-sheet the delivery
at the second attempt. Id.
Hill testified that he first saw the UPS air van in the Pie
Wagon parking lot at 10:15. Hill also testified that he knew it
was 10:15 because as an air driver, he constantly looks at his
watch to ensure delivery before 10:30. At the time they saw the
air van at the restaurant, they were on their way to their last air
delivery. TR at 317. After making their last delivery, they drove
by another location where Hill would have deliveries in the future.
TR at 320. They passed by the restaurant again and noticed the van
had not been moved. TR at 320. They then made two more
deliveries, the last to Universal Tire where Steve called UPS.
When they both returned to the van, it was 10:35. TR at 322. They
drove by the restaurant again and noticed the van was still in the
same spot. They parked their van and Burtnett checked the
Complainant's van for packages. Burtnett then entered the
restaurant and returned to the van approximately ten to fifteen
minutes later. TR at 323. Hill testified that he did not know
whose van it was until he saw the Complainant in the doorway at
approximately 10:50 am. TR at 323. Hill also testified that when
Burtnett returned to the truck he said "I can't believe he is doing
what he is doing. It got loud. He knows he is not supposed to
take a break." TR at 323.
After they left the restaurant, they met Robert Vaughn for
lunch. Later that day, Hill spoke with a union steward who advised
him to make a written statement. TR at 324. He did so.
Id.Testimony of Brenda Kay Kennedy
Ms. Brenda Kay Kennedy testified on September 22, 1994 in
Nashville, Tennessee. She began working for UPS in 1975 as a
package car driver. TR at 343. She worked for four years in the
industrial engineering department. In 1989, she was a feeder
[PAGE 13]
engineer involved with the procedures, practices, and policies used
in pulling the trailers away from the docks. Currently, she is an
on-car supervisor responsible for the delivery drivers and air
package drivers. TR at 342.
Kennedy had a conversation with the Complainant about the
switching procedure in which the shifter would not visually check
the trailer. TR at 349. Before the new procedure was effectuated,
the shifter had the responsibility to ensure that no one was in the
trailer and the door was down. It was the hub manager's
responsibility to actually close the door. TR at 355. Kennedy had
recommended that the shifter should remain in the yardbird and wait
until he was told by radio to pull away from the dock. Id.
The Complainant did not complain directly to her about the new
procedure. TR at 351.
The Complainant, while in the hub at White's Creek, got on the
radio and asked Kennedy whether her lesbian girlfriend was still
working for the Baptist Sunday School Board and wondered what would
happen if the Baptist Sunday School Board knew that there was a
lesbian writing children's books. TR at 352. Then, also over the
radio, the Complainant asked Ronnie Giles (Giles) if he heard what
the Complainant said. Giles asked him to repeat it and the
Complainant did. Id. Kennedy was standing next to the
Complainant when this incident occurred. Id. Kennedy
testified that she said nothing to the Complainant but after her
shift, she spoke with her supervisor and manager. TR at 353. She
also reported it to the feeder department and her boss at the
engineering department. She requested action to be taken against
the Complainant. TR at 353. The Complainant was discharged, but
no action was taken against Giles even though he asked the
Complainant to repeat the statement. TR at 366.
At the time of the above incident, Kennedy had no knowledge
about the TOSHA investigation. She also did not know that the
Complainant had filed a complaint with TOSHA. TR at 354. She
testified that she first learned of the Complainant's filing a
complaint during the week of the September 21-22, 1994 hearing. TR
at 360. Although she was responsible for the safe operation of the
switching procedure at the time of the TOSHA inspection, she denied
ever being told about the inspection or the resulting citation. TR
at 361. Kennedy denies ever seeing the citation, and being
provided with the recommendations of TOSHA, or being informed of
how to comply. TR at 361. She also denies that management told
her to pay special attention to the Complainant. TR at 361.
[PAGE 14]
Kennedy recalls that the Complainant said to her, "I guess
you're pretty upset since I got all of them in a war." TR at 362.
Kennedy did not inquire into what he meant. TR at 363.
Testimony of Michael Terrell
Mr. Michael Terrell testified on September 22, 1994 in
Nashville, Tennessee. Has worked for UPS for twenty-one years. TR
at 370. In August 1990, he worked as an on-yard supervisor in the
feeder department at White's Creek.
It was common practice at UPS to conduct on the job surveys on
a quarterly basis. TR at 377. If there was no seat in the
yardbird for the supervisor, it was common practice for the
supervisor to sit on the hood of the yardbird and hold on to the
several rails on the hood. Id.
Terrell testified that on August 21, 1990, he conducted an on
the job survey with the Complainant. TR at 377. He denied
conducting the survey because the Complainant had filed complaints.
TR at 380. Rather, he argued, it was a standard quarterly survey
as required. Id. At the time of the survey, Terrell knew
that the Complainant had filed a complaint regarding a safety-
related item with TOSHA, but did not know the specifics. TR at
388. He does not recall seeing anything posted from TOSHA
regarding its citation. TR at 389.
To conduct the survey, Terrell sat on a stadium type seat that
he placed on the hood of the Complainant's yardbird. TR at 377.
He had never used the stadium type seat before. TR at 382.
Terrell also testified that as they were driving across the yard at
a pretty good speed, the Complainant slammed the brakes. TR at
377. Terrell testified that he had to hold on in order that he
would not be thrown. Id. He stated that the Complainant
slammed on his brakes four times. Id.
Terrell conceded that he thought sitting on the hood of the
yardbird was not safe, but he never complained to management about
it. TR at 383. He further testified that he was injured from the
Complainant's behavior. TR at 379. His shoulder popped and he
suffered soreness and stiffness for "some time." Id. After
the ride he told Carlton, his manager, what just occurred. TR at
378.
Testimony of Charles D. Coleman
Mr. Charles D. Coleman (Coleman) testified on September 22,
1994 in Nashville, Tennessee. He has worked for UPS for twenty-
[PAGE 15]
eight years. TR at 393. He has been the labor relations manager
since 1989. TR at 394. His responsibilities include presenting
all cases on behalf of UPS to the panel. TR at 400.
Coleman explained the permitted break periods. TR at 428-32.
Under Article 40 of the Agreement, air operation employees who are
covered by a daily guarantee are allotted the same rest periods as
outlined for part-time employees on page 102. TR at 428. That
section reads, "Part-time employees will be guaranteed ten minutes
relief period during each work shift. The relief period may not
start before the end of the first hour and must be completed by the
end of the third hour. EX 28 at 102. Air operation employees that
are covered by a daily guarantee are those employees who have as
their sole job air operations. TR at 429. There is nothing in the
Agreement, however, that states air operations must be their sole
job. TR at 429. Coleman further explained that if an employee is
doing an air job in addition to another job, he gets paid for the
actual hours he worked and is permitted to take his ten minute
break on his principal, non-air job. TR at 431.
He conceded that if the Complainant had taken only a ten
minute break, these proceedings would not have been brought. TR at
433. At the local hearing, the Complainant's grievance was denied
based on the testimony of Hill and Burtnett, the Complainant's
delivery sheet, the fact that White's Creek is 9.7 miles, a twelve
to fourteen minute ride, from the Pie Wagon restaurant. TR at 417-
18. When asked if the Complainant had ever filled out a delivery
sheet correctly, Coleman responded, "evidently he did or somebody
would have corrected him since he'd been doing it for two years."
TR at 447. The Complainant made no reference at the hearing about
his filing a TOSHA complaint. Id.
At the panel in Daytona Beach, Florida, Coleman recalls the
Complainant testifying, "the company is only terminating me because
I filed OSHA complaints." TR at 422. The Panel also upheld the
discharge. TR at 425. Once the Panel renders its decision, an
employee has no further recourse under the Agreement. TR at 425.
The Complainant's attorney asked Coleman about Fryer not being
able to testify. TR at 435. Coleman responded that Fryer was in
Florida on vacation and would have been allowed to testify if he
wanted. Id.
Coleman opined that the Complainant was at the restaurant for
longer than he admits, considering that it takes between twelve and
fourteen minutes to travel by car at 10:30-11:00 in the morning
from the restaurant to White's Creek. TR at 419. He explained
[PAGE 16]
that stealing time means taking excessive break time. TR at 419.
It is taking a break when you are not permitted to do so and not
properly documenting it. Id. It is also being paid for
time not worked. Id.
In regards to the Terrell incident in August 1990, Coleman
testified that he had never heard of a manager riding on the hood
of the yardbird. TR at 441.
CONCLUSIONS OF LAW
Issue 1. Whether the Complainant filed a timely complaint with the
United States Department of Labor.
The regulations at 29 C.F.R. §1978.102 provide as
follows:
(b) Nature of filing. No particular form of
complaint is required.
(c) Place of filing. The complaint should be
filed with the OSHA Area Director responsible
for enforcement activities in the geographical
area where the employee resides or was
employed, but filing with any OSHA officer or
employee is sufficient. Addresses and
telephone numbers for these officials are set
forth in local directories.
(d) Time for filing. (1) Section 405(c)(1)
provides that an employee who believes that he
has been discriminated against in violation of
Section 405(a) or (b) " * * * may, within one
hundred and eighty days after such alleged
violation occurs, file or have filed by any
person on the employee's behalf a complaint
with the secretary.
The charge made by a complainant in these proceedings is not
[PAGE 17]
to be considered a formal pleading setting forth legal causes of
action which may serve to limit the suit. Richter v. Baldwin
Associates, 84-ERA-9 (Secy March 12, 1986). The purpose of the
complaint is merely to initiate an investigation by OSHA.
Spearman v. Roadway Express, Inc., 92-STA-1 (Secy August 5,
1992). The regulations and the ensuing case law makes clear that
there is no particular form of complaint required.
The Complainant was discharged for a final time on March 18,
1991. The Complainant testified that after TOSHA dismissed his
complaints he wrote to OSHA in a letter dated August 30, 1991,
requesting them to further investigate. Also in the record is the
Complainant's letter. CX 4. The record makes clear that he filed
a complaint with the OSHA office in Atlanta within one hundred and
eighty days of his discharge. Accordingly, I find that the
Complainant filed a timely complaint with the U.S. Department of
Labor.
Issue 2. Whether the Complainant is a protected person under
Section 405.
The regulations define an employee as (1) a driver of a
commercial motor vehicle; (2) a mechanic; (3) a freight handler;
or (4) any individual other than an employer who is employed by a
commercial motor carrier and who in the course of his employment
directly affects commercial motor vehicle safety. 29 C.F.R.
§1978.101(d).
The Complainant, although also responsible for making local
deliveries, was responsible for interstate deliveries to Alabama
and Kentucky. He also performed duties as a freight handler,
loading the next-day air vans for the day's deliveries.
Furthermore, the Complainant is an individual employed by a
commercial motor carrier who affects commercial motor vehicle
safety. See 409 U.S.C. §10102.
Accordingly, I find that the Complainant is a protected person
under the Act.
The Complainant bears the initial burden of establishing
a primafacie case of retaliatory discharge. The
primafacie case raises an inference that protected
activity was the likely reason for the adverse action. Once
successful, the burden of production shifts to the Respondent to
articulate a legitimate, nondiscriminatory reason for its
employment decision. If the Respondent rebuts the inference of
retaliation, the Complainant then bears the ultimate burden of
demonstrating by a preponderance
[PAGE 18]
of the evidence that the legitimate reasons were a pretext for
discrimination. Moon v. Transport Driver, Inc., 836 F.2d
226 (6th Cir. 1987).
To establish a primafacie case of retaliatory
discharge, the Complainant must prove that he engaged in protected
activity, that he was the subject of adverse employment action,
that his employer was aware of his protected activity, and that
there was a casual link between his protected activity and the
adverse action of his employer. Moon at 226.
Section 2305 provides:
(a) No person shall discharge, discipline, or in any
manner discriminate against any employee with respect to
the employee's compensation, terms, conditions or
privileges of employment because such employee has filed
any complaint or instituted or caused to be instituted
any proceeding relating to a violation of a commercial
motor vehicle safety rule, regulation, standard, or
order, or had testified or is about to testify in any
such proceeding.
(b) No person shall discharge, discipline or in any
manner discriminate against an employee with respect to
the employee's compensation, terms, conditions, or
privileges of employment for refusing to operate a
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 the public 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
circumstance 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.
The evidence produced by the Respondent to rebut the
presumption of discrimination only has to raise a genuine issue of
fact as to whether discrimination actually occurred. It does not,
at this stage, have to prove that it was actually motivated to fire
[PAGE 19]
the Complainant because of the proffered reason. Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 454-55 (1981). The
Complainant must then prove that the Respondent's explanation for
terminating his employment is not the "true reason."
Issue 3. Whether the Complainant engaged in protected
activity.
To establish his primafacie case, the
Complainant must prove that he has engaged in protected activity.
Under subsection (a) of Section 2305, protected activity may be the
result of complaints or actions with agencies of federal or state
governments, or it may be the result of purely internal activities,
such as internal complaints to management. Mackowiak v.
University Nuclear Sys., Inc., 735 F.2d 1159 (9th Cir. 1984);
Davis v. H.R. Hill, Inc., 86-STA-18.
The Complainant testified that when the switching procedure
was changed, he noticed the potential for danger and discussed this
first with Shadelow, his warehouse supervisor. When he received no
response, he discussed the issue with Harrell. After speaking with
four managers and receiving no satisfactory response, he spoke with
Hawkins at TOSHA and reported the violations. He also filed an
11(c) complaint with TOSHA on September 20, 1993. Additionally,
the Complainant phoned Liberty Mutual and reported the unsafe
switching procedure. He contacted TOSHA again, after his April 24,
1990 discharge and again after his March 18, 1991. discharge.
The Complainant's testimony as to this issue is supported by
other evidence in the record. First, the testimony of Cooper
bolsters the Complainant's assertion that he participated in
protected activity. Cooper testified that the Complainant filed
a complaint over the phone with Hawkins some time prior to February
1, 1990. Also, Hawkins inspected the UPS center at White's Creek
and issued a citation for safety violations. Additionally, TOSHA
conducted a discrimination investigation after the Complainant's
April 24, 1990 and August 27, 1990 discharges.
Second, the testimony of Bochette supports the Complainant's
testimony that he participated in protected activity. Bochette
testified that he knew that the Complainant had complained about
the new switching procedure. He had overheard the Complainant
telling other managers about the dangers involved in the new
procedure. Also, he was present at a meeting when the Complainant
suggested he would contact OSHA to get the problem resolved.
Bochette had conversations with other managers about the TOSHA
complaints.
[PAGE 20]
I find the record replete with evidence establishing that the
Complainant participated in protected activity. No one denies that
the Complainant filed TOSHA complaints. The most convincing
evidence is the TOSHA citation dated March 1, 1990.
Issue 4. Whether the Complainant was subject to adverse
action by the Respondent.
The Complainant must establish that the Respondent took some
adverse action against him. In the record, it is not disputed that
the Respondent discharged the Complainant. He was discharged on
March 18, 1991. Clearly, the Complainant was the subject of
adverse employment action.
Issue 5. Whether the Respondent was aware of the
Complainant's protected activity.
The third element that the Complainant must establish in order
to make his primafacie case is whether the
Respondent was aware of the Complainant's protected activity.
The Complainant testified that he reported the potential
dangers first to his immediate supervisor, Harrell. In the period
that followed, he reported the dangers to numerous other
supervisors and union stewards and told them that he would report
the violations to OSHA if the problem was not rectified.
Bochette testified that the Complainant told him about the
potential danger. Also, Bochette testified that he was present at
a meeting where the Complainant told supervisors that he would
follow through with his complaints and contact OSHA.
Additionally, Terrell testified that he was aware of the
complaints to TOSHA. Furthermore, Coleman testified that the
Complainant stated at his March 1991 hearing that he was being
terminated because he had filed complaints with OSHA.
Kennedy testified at the hearing that she was not aware of the
TOSHA investigation or the TOSHA citation. She also denied being
shown the TOSHA recommendations on how to comply with the safety
regulations. Although I find Kennedy credible on other issues, I
do not find her credible in this matter. I find it incredible that
Kennedy, the hub engineer who is responsible for the safe operation
of the switching procedure, was not informed of the safety
violations involving the switching procedure or the TOSHA
recommendations.
[PAGE 21]
Based on the foregoing, I find that the Respondent was aware
of the Complainant's complaints with TOSHA.
Issue 6. Whether there is a casual link between the
Complainant's protected activity and the adverse action of
the Respondent.
In order to establish his primafacie case, the
Complainant must prove a causal link between his protected activity
and the adverse action of his employer. The Complainant alleges
that his employer terminated him because of his complaints to
TOSHA. The Respondent alleges that they discharged the Complainant
for an act of dishonesty, "stealing time."
The Complainant testified and conceded to being at the Pie
Wagon restaurant for over ten minutes. He testified that he was in
the restaurant for fifteen to twenty minutes and that he left at
10:50. He also testified that if Burtnett did not enter the
restaurant, he probably would have only been there for ten
minutes. Additionally, he submitted a time sheet allegedly
representing the hours that he worked on March 15, 1991. CX 6.
Burtnett testified that he saw the Complainant's van parked in
the restaurant parking lot for twenty-five minutes. He testified
also that if the time clock is broken, it is fixed immediately, as
so many employees rely on it.
Hill testified that he first saw the Complainant's van parked
in the restaurant parking lot at 10:15. He testified also that it
was not until 10:50 when he and Burtnett left the parking lot. At
that time, the Complainant remained inside the restaurant.
I find the Complainant's testimony not credible. His past
behavior exemplifies his weakness of character. In his years at
UPS, he received numerous warnings and suspensions, even years
before the switching procedure was changed. He had a consistent
record of discharges before his last discharge on March 18, 1991.
Despite the warnings and the progressive discipline which had been
imposed upon him before his report to TOSHA and OSHA, his
performance deteriorated. Although the exhibits submitted by the
Respondent show otherwise, the Complainant testified that he was
discharged in 1981, rehired, and did not receive any warning
notices, suspensions, or discharges until 1990. His behavior
towards his supervisor, Kennedy was egregious. The fact that he
used Kennedy's sexual orientation for his own benefit is so
flagrant that it brings his own character into question.
[PAGE 22]
Additionally, I find that the Complainant intentionally
falsified his delivery sheet. He testified that his first stop was
at the Tennessee Teachers' Credit Union where he was unable to
deliver. Yet, he did not properly indicate this on his delivery
sheet by writing "NI 1." As Coleman pointed out, the Complainant
must have known the correct way to fill out the delivery sheets,
because he had been using them for two years. I believe that had
he completed the delivery sheets incorrectly in the past, he would
have received a warning notice. As there is no warning notice
indicating such, I believe the Complainant knew how to correctly
complete the delivery sheet.
Furthermore, I do not find his explanation credible as to why
the time clock stamped "Feb 12" on his March 15 time sheet. I do
not believe that a company such as UPS, which runs "the tightest
ship in the shipping business," would use a time clock that was
not functioning properly. I find Burtnett's testimony more
credible in that if the time clock was malfunctioning, it would
have been repaired immediately. Therefore, there is no credible
evidence establishing what time the Complainant returned to White's
Creek. As I find Burtnett's and Hill's testimony credible[2] ,
there is evidence establishing that the Complainant was at the
restaurant until atleast 10:50, thirty-five minutes
after his van was first spotted in the parking lot.
Based on the foregoing, I find that the Complainant took at
least a thirty-five minute break while still on the clock. Had the
Complainant been entitled to a ten minute break, he would still be
guilty of "stealing time," as UPS terms it. He conceded to being
at the restaurant between fifteen and twenty minutes. Accordingly,
the Complainant failed to establish a causal link between his
complaints to TOSHA and the Respondent's discharging him. The
Respondent submitted clear and convincing evidence that the
Complainant was guilty of an act of dishonesty, a dischargeable
offense. The Complainant failed to establish that the March 18,
1991 discharge was for any reason other than his own dishonesty.
RECOMMENDED ORDER
IT IS RECOMMENDED that the complaint of Kenneth C. Clifton
against United Parcel Service be dismissed.
PAUL H. TEITLER
ADMINISTRATIVE LAW JUDGE
NOTICE: This Recommended Decision and Order and the administrative
file in this matter will be forwarded for review by the Secretary
of Labor to the Office of Administrative Appeals, U.S. Department
of Labor, Room S-4309, Frances Perkins Building, 200 Constitution
Ave., NW, Washington, DC 20210. The Office of Administrative
Appeals has the responsibility to advise and assist the Secretary
in the preparation and issuance of final decisions in employee
protection cases adjudicated under the regulations at 29 C.F.R.
Parts 24 and 1978. See 55 Fed. Reg. 13250 (1990).
[ENDNOTES]
[1] The following references are used herein: "CX" designates
the Complainant's Exhibits; "EX" designates the Employer's
Exhibits; "JX" designates Joint Exhibits; "TR" designates the
pages of the transcript of the hearing conducted on September 21-
22, 1994 in Nashville, Tennessee.
[2] I do find some discrepancies in their testimony. For
example, Burtnett testified that the air drivers are responsible
for loading their own vans and arranging the packages in order of
their stops. TR at 258. Hill testified that the packages are
pre-loaded according to the order of delivery. TR at 333. I
recognize that their testimonies do differ in some areas, but are
substantially the same in regards to the time they saw the
Complainant's van parked in the restaurant lot and their stops on
that day. Therefore, I find that their testimony is credible.
