Date: January 25, 1995
Case No. 94-STA-39
In the Matter of:
ASSISTANT SECRETARY OF LABOR
FOR OCCUPATIONAL SAFETY AND HEALTH,
Prosecuting Party,
and
GEORGE BEARD,
Complainant,
v.
APAR BROKERAGE,
Respondent.
Appearances:
Jamison Poindexter Milford, Esq.
United States Department of Labor
Office of the Solicitor
1210 City Center Square
1100 Main Street
Kansas City, Missouri 64105
For the Complainant
Douglas L. Phillips, Esq.
Klass, Hanks, Stoos, Stoik,
Mugan & Villone
Jackson Plaza, Suite 300
4th and Jackson Streets
Sioux City, Iowa 51102
For the Respondent
Before: ALFRED LINDEMAN
Administrative Law Judge
DECISION AND ORDER
A hearing in this matter under section 405 of the Surface
Transportation Assistance Act of 1982 ('the Act'), 49 U.S.C.
§2301, et seq., 29 C.F.R. §§1978.106-1978.109, was
held in Sioux
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City, Iowa, on October 26, 1994, on complainant's timely filed
complaint and respondent's objections to the Secretary of Labor's
finding of reasonable cause to believe that respondent violated
§5(b) of the Act. The issues in dispute revolve around
whether claimant's refusal to drive an assigned truck was due to
a 'reasonable apprehension of serious injury to himself or the
public,' and whether complainant informed respondent of his
safety concerns before his employment was terminated.
Complainant seeks back pay minus interim earnings for the period
between being fired by respondent and obtaining a new job, and
compensatory damages; complainant does not seek reinstatement
pursuant to section 405(c)(2) of the Act.
Findings of Fact
It is uncontested that respondent, a commercial motor
carrier engaged in interstate and intrastate commerce, employed
complainant as a driver of commercial motor trucks within the
meaning of the Act. Further, it is uncontested that complainant
was terminated from his employment on March 23, 1993, after he
refused to drive truck number 15, a 1988 Chevrolet straight
truck. Complainant claims that his refusal was based on safety
concerns.
Complainant, who measured 6'6" tall at his last DOT physical
examination, contends that he was unable to safely operate the
pedals in truck number 15 because he could not fit his legs under
the nonadjustable steering wheel. Complainant also testified
that there was not enough room between the door and the steering
wheel for his left leg. Further, he testified that his feet
would slip off the pedals when his shoes were wet, forcing him to
push down on the pedals with the side of his foot. TR 24-26. On
the other hand, complainant testified that the other trucks owned
by respondent had roomier cabs that enabled him to maneuver his
legs and feet. TR 4043.
Complainant testified that he nearly had an accident the
first time he drove truck number 15. This alleged "near-miss"
occurred in June of 1992 while complainant was driving a route
that took him through Carroll, Iowa. Complainant testified that
it was raining and his leg became wedged between the door and the
brake as he approached an intersection, causing the brakes to
lock up and the truck to skid out of control. Complainant
testified that he informed respondent of the incident after
returning from the run. TR 26.
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According to complainant, respondent owner Max Rasmussen
arranged for complainant to switch to another route driving a
semi truck on the basis of these safety concerns. TR 29.
Complainant testified that he overheard a conversation between
Rasmussen and Tom Hummel, one of respondent's drivers, in which
Hummel agreed to relinquish a semi route to complainant because
complainant was having trouble with truck number 15. TR 30-31.
Rasmussen, however, testified that complainant never mentioned a
"near-miss" in Carroll. TR 155. Rasmussen also testified that
the reason complainant was allowed to switch to the semi route
beginning in November was that complainant preferred that route,
and not because he was too tall to drive truck number 15. TR
157. Rasmussen testified that complainant had to give up the
route in late February or March when Hummel decided he wanted it
back. TR 158. Hummel confirmed Rasmussen's version of events.
TR 183-185.
Respondent contends that complainant never raised safety as
an issue in connection with truck number 15 at any time.
Rasmussen testified that complainant objected to driving truck
number 15 on the grounds that he felt 'uncomfortable" and
"cramped, " but that he never reported having trouble operating
the pedals. TR 161-164. Hummel, who was also respondent's
mechanic, testified that complainant never registered any
complaints about truck number 15 on the mechanic's form that
drivers used to indicate problems with the trucks. TR 190-191.
Respondent also disputes complainant's testimony that he voiced
his concerns to two other drivers, James Meehan and Don Hawkins.
TR 85. Both Meehan and Hawkins testified that complainant never
told them he was worried about driving truck number 15. TR 118-
119; 208.
In addition, respondent contends that complainant never
objected to driving a straight truck or raised safety concerns
during an earlier period of employment with the company in the
late 1970's. TR 147. Indeed, complainant testified that he
drove a straight truck on 300 mile "peddle runs" five or six
times a week during this earlier employment.[1] TR 71. Although
complainant stated that he initially believed he had been hired
to drive semi trucks only, Rasmussen testified that complainant
understood that he had been hired to drive all the trucks owned
by respondent and that as the employee with the least seniority
he would have last choice of routes. TR 148-149. Don Hawkins,
respondent's night supervisor, also testified that he overheard
the interview in which complainant was hired to drive all of the
trucks owned by respondent. TR 117-118.
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Complainant, however, contends that respondent made a
decision to allow him to drive other trucks in light of his
difficulties driving truck number 15. Respondent's assignment
calendar indicates that complainant did not drive truck number 15
after September 1992. RX U. Further, the record shows that
complainant was assigned to drive truck numbers 58 or 24 to
Carroll on six occasions during this period. Complainant
contends that the absence of truck number 15 assignments during
this period supports his argument. Rasmussen testified, however,
that he merely told Hawkins to avoid assigning complainant truck
number 15, if possible, because complainant was "unhappy" with
it. TR 154. I note that complainant was assigned to four runs
in truck number 15 after his alleged "near-miss" in Carroll, and
that he accepted these assignments. In addition, complainant's
assumption of Hummel's semi route precluded assignments to truck
number 15 beginning in November.
Rasmussen testified that he had to assign complainant to
drive truck number 15 on a peddle-run on March 23, 1993, because
the only other truck available was a semi that was too large for
the light load. TR 160. Complainant testified that he refused
the assignment on the ground that it was not safe for him to
drive truck number 15, and that he offered to drive truck number
24 instead. TR 44. Rasmussen testified that truck number 15 had
already been loaded by the time he assigned complainant to the
route and that nobody was available to switch the load. TR 178-
179. Additionally, Rasmussen testified that two weeks earlier
complainant had announced he would not "peddle out of a semi
anymore."[2] TR 158-159. Complainant, however, denies having
complained about driving a semi, and points out that he drove a
semi, truck number 58, twice after the drive about which he
supposedly complained. TR 77. Complainant contends that
Rasmussen's decision was based on the expense involved in sending
out a semi rather than one of the smaller straight trucks.
Rasmussen, however, testified that complainant's unwillingness to
drive a semi on a peddle run was a factor in his decision to
assign complainant to drive truck number 15, as well as the
expense involved in sending out a semi with a light load. TR
160.
Rasmussen also testified that none of the other drivers ever
complained about driving truck number 15, and that another driver
named Jack Shur, who was 6'6" tall and weighed 385 pounds, had no
problem driving truck number 15. TR 166. In the same vein, Jim
Meehan, another of respondent's drivers, testified that he had
driven truck number 15 on 40 to 50 trips of 250 to 350 miles each
in the past year and a half. TR 204. Mr. Meehan is 6'4" and
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wears size 11-1/2 C width shoes. Complainant testified that his
shoe size is 15-D and his inseam length is 33". Although Mr.
Meehan is two inches shorter than complainant, he testified that
his inseam length is 36", which indicates that his legs are
longer than complainant's. Despite his long legs, Mr. Meehan
testified that he had no problem operating the pedals in truck
number 15. TR 206.
The record indicates that the car complainant regularly
drove to work was a Chevette, which has far less leg room than
that in truck number 15, that he sat sideways in order to operate
the pedals, and that he has never had an accident in any vehicle
that could be attributed to him. TR 88-89. Finally, having
viewed both complainant and Mr. Meehan sitting in truck number
15, which was parked outside the courthouse, I noted that they
both sit with one knee on each side of the steering wheel,
although complainant's legs appear to ride higher that Mr.
Meehan's; that although complainant wears a larger shoe size than
Mr. Meehan, it appears that the width of the shoe is more crucial
than the length in terms of ease in moving from one pedal to
another; and that the pedals appear to be far enough apart to
accommodate the width of complainant's shoes. TR 209-21 1.
Conclusions
Section 405(b) of the Act provides in pertinent part:
No person shall discharge...an employee...for
refusing to operate a vehicle...because of
the employee's reasonable apprehension of
serious injury to himself or to the public
due to the unsafe condition of such
equipment. The unsafe condition 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 this case, therefore, the issue is whether complainant's
perception of an unsafe condition was reasonable.
Based on the totality of the record including my
observations of Meehan and complainant sitting in the cab of
truck number 15, the photos of complainant sitting in
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respondent's other trucks, see PI: A-N, the fact that he
is able to drive a small Chevette as a personal car, and the
evidence regarding Meehan's use of truck number 15, 1 find that
although complainant had a bona fide feeling that truck number 15
was uncomfortable for him to drive, the evidence does not
support a finding that he reasonably feared an unsafe condition.
See Yellow Freight System, Inc. v. Reich, 38 F.3d 76 (2d
Cir. 1994). Therefore, I conclude that complainant was not
engaging in a protected activity by refusing the assignment to
drive truck number 15 and respondent did not violate section
405(b) of the Act by discharging him because of said refusal.
Accordingly, the March 26, 1993, complaint of George Beard under
the Surface Transportation Act is DISMISSED.[3]
SO ORDERED.
ALFRED LINDEMAN
Administrative Law Judge
[ENDNOTES]
[1]
Peddle-runs are routes with stops in different locations where
the driver unloads part of the cargo.
[2]
Similarly, Hawkins, respondent's night supervisor, testified that
complainant told him that he would not accept any more
assignments to peddle out of a semi. Hawkins explained that
peddle runs are more physically demanding because the drivers
handle each piece of merchandise, whereas merchandise in the
larger shipments is moved by pallets.
[3]
In view of the conclusions reached, findings regarding
complainant's entitlement to back pay and other damages are
rendered moot.
