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USDOL/OALJ Reporter
Office of Administrative Law Judges Commerce Plaza 603 Pilot House Drive, Suite 300 Newport News, VA 23606
DATE: October 2, 1995 CASE NO.: 94-STA-54 In the Matter of RICKY L. BROWN,
WILSON TRUCKING CORPORATION,
Appearances: Leonard J. Spooner, Esq.
John Skinner, Esq.
BEFORE: Richard K. Malamphy, Esq. Administrative Law Judge
This proceeding arises under Section 405, the employee protection provision, of the Surface Transportation Assistance Act, 49 U.S.C. §2305 (1982) (hereinafter "the Act"), and the implementing regulations set out at 29 C.F.R.
[Page 2] Part 1978 (1988). In order to promote safety on the Nation's highways, the Act and the regulations prohibit covered employers in the transportation industry from discharging or otherwise discriminating against employees who have engaged in certain protected activities. More specifically, the Act protects employees from discharge, discipline, or discrimination for filing a complaint about commercial motor vehicle safety, testifying in a proceeding regarding such safety, or refusing to operate a commercial motor vehicle when operation would violate a Federal safety rule or when the employee reasonably believes it would result in serious injury to himself or others.
On July 8, 1994, Complainant, Ricky L. Brown, filed a complaint with the Secretary of Labor alleging that he had been discriminatorily discharged for refusing to drive in violation of the United States Department of Transportation regulations in contravention of 49 C.F.R. Sections 172, 173, and 174 of the Hazardous Materials Act. Reportedly, he was fired for refusing to load and transport an unlabeled drum of chemicals--with broken seal (RX 1 - See preliminary matters). Following an investigation on August 25, 1994, the Regional Administrator, U.S. Department of Labor - OSHA, dismissed the complaint based on a lack of merit under Section 405 of the Surface Transportation Assistance Act (RX 2). In a letter dated September 12, 1994, Complainant's counsel filed an appeal with the Office of Administrative Law Judges. The parties have stipulated that Wilson Trucking Company is an employer as described in the Surface Transportation Assistance Act, that Mr. Brown was a driver for the employer, and that Brown was discharged by the employer (TR 6-7). A formal hearing was held in Greenville, South Carolina, on January 18 and 19, 1995, and on March 7, 8, and 9, 1995. During this time, all parties were afforded full opportunity
[Page 3] to present evidence and argument as provided in the Act. Post hearing briefs were filed and the record was closed on July 17, 1995. Based upon a review of said briefs, the entire record of this case, and the applicable law, I have reached the following findings of facts and conclusions of law. Where appropriate, consideration has been given to my observation of the appearance and demeanor of the witnesses. Each exhibit in the record has been given careful consideration whether or not it is specifically mentioned in this recommended decision.
At the hearing, the Employer argued that the case should be limited to the issue of improper labeling as stated in RX 1 (TR 18). Complainant's counsel stated that the complaint was filed by telephone and that RX 1 was an inaccurate account of the conversation with Department of Labor personnel (TR 19-20). The Secretary's findings, as part of the August 25, 1994, report from the Regional Administrator, indicated that the investigation considered complaints of mislabeling, lack of training in handling hazardous chemicals, and safety concerns due to chemical exposure (RX 2). Notwithstanding the possible lack of notice prior to the administrative hearing, due process is not offended if an agency decides an issue the parties fairly and fully litigated at a hearing. When parties fully litigate an issue, they obviously have notice of the issue and have been given an opportunity to respond. This satisfies the requirement of administrative due process. Yellow Freight System, Inc. v. Martin, 954 F.2d 353 (6th Cir. 1992). This circuit emphasized in Martin that "[t]he fundamental elements of procedural due process are notice and an opportunity to be heard." Yellow Freight System, Inc. v. Reich, 27 F.3d 1133 (6th Cir. 1994). The undersigned must conclude that the Respondent had adequate notice of the Complainant's three allegations in view of the investigative report from the regional
[Page 4] administrator (see RX 2). Therefore, this case will not be limited to the one issue raised in RX 1 (see Brame v. Consolidated Freightways, Case No. 90-STA-20, Sec. Final Dec. and Order June 17, 1992).
The contentions in this case focus on the following:
The Complainant argues that the drum in question was unlabeled and that he refused to transport the drum because of that defect and because of a reasonable apprehension for his safety. Mr. Brown asserts that he had not been trained in the delivery of hazardous materials that were made by Nalco. In addition, the Complainant states that he was discharged in retaliation for protected activity under the provisions of Section 11(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §660(c). The pertinent complaints are his lack of a respirator and his lack of training in handling hazardous materials. The Respondent argues that the drum was properly labeled and that Brown was discharged as he refused to pump the contents of the drum into a base unit at a customer's site. In addition, the Respondent argues that with respect to the pumping procedure itself, this Court does not have jurisdiction over the issues raised by Brown. Not only did Brown fail to mention this in his Complaint (RX 1), but also, even if he had, these types of claims are not governed nor protected by
[Page 5] §405, or any other section of the STAA. Finally, even assuming this Court had jurisdiction over these claims, Brown failed to establish that the pumping procedures presented any genuine threat to his health and safety such that his termination for refusing to pump the contents of the drum would be considered a violation of the STAA or OSHA.
At the hearing on January 19, 1995, Brown testified that he began working as a truck driver for Wilson about four years ago and that he was terminated on March 30, 1994 (TR 373). He was certified as a commercial truck driver and was certified to haul hazardous materials. Mr. Brown testified that he had not received training by the Nalco Chemical Company. On February 28, 1994, Brown was scheduled for his third delivery of "bifusites in organic aqueous," in a Nalco drum. (See RX N for identification of this chemical.) Normally, a driver would take such a drum from the terminal with the Nalco mini porta-feed chemical handling system and one or more nitrogen tanks. However, on February 28, the drum was transferred to him on the road by Virginia Livingston, the dock foreman. The proper procedure for delivering such a chemical to a customer is indicated by the Nalco Transfer Procedures for Delivery Specialists (RX 11), the Nalco video tape (RX 3), and by the testimony of James Nardone from Nalco (TR 816-912). Brown testified that he ran out of nitrogen in the pumping procedure on February 28. Brown called Floyd Pepper, a leadman supervisor for the Respondent. The Complainant stated that he would try to obtain nitrogen from the customer, Grover Industries, or would try to elevate the drum with a fork lift for a gravity feed. (See RX 10, p. 27, deposition of Floyd Pepper.) Pepper testified, by deposition, that:
[Page 6]
[Page 7]
During testimony, Brown described checking the paperwork at Grover Industries, hooking the base unit to the transporter drum, and then injecting the nitrogen into the drum (TR 383-4). He spoke with Pepper and stated that he would seek additional nitrogen or attempt to use a fork in order to complete the transfer. As neither option was available, Brown shut off the drum and base unit valves and put an absorbent material on the floor to catch any spillage. During the disconnecting procedure, a small amount of chemical spilled into the absorbent material. Brown testified that:
[Page 8]
Thereafter, Brown loaded the truck, but drove only about six miles before he became dizzy. Brown then called Pepper who indicated that a mechanic and Donald Harkins, the terminal manager, would bring him back. On their return, Harkins took Brown to the Exigent Medical Center. Brown returned to work later than usual the next morning. The record indicates that the drum in question was sent from the Greenville terminal to the Wilson terminal in Atlanta on March 2, 1994 (TR 1030, RX G). In Atlanta, it was determined that the drum had not been emptied. Therefore the drum was returned to Greenville on March 23 to complete the delivery at Grover Industries.
Virginia Livingston, the dock foreman, testified that it was not her job to inspect each and every item of hazardous material to see if appropriate labels had been attached. Such duties were assigned to those who had gone through hazardous material training. Livingston testified that:
[Page 9]
[Page 10]
Brown testified that following his injury he made copies of the bill of lading for the drum so that he would be able to identify the drum if it were to be rescheduled for delivery. (There is some confusion in the record as to whether or not a delivery of this drum was scheduled for Grover Industries on or about March 2, 1994.) The drum in question should carry a hazard Class 8 label for a corrosive material (see RX M). Brown and other drivers usually came to the terminal early in the morning, and they would unload the incoming trucks and trailers. The drivers would use bills of lading as guides to load the outgoing trucks. Livingston testified that the drivers checked the freight for damage and for proper labeling (TR 1016). Brown testified that on March 30, 1994:
[Page 11]
[Page 12]
Livingston testified that on March 30, Brown:
[Page 13]
Later on March 30, Livingston asked Brown if he had enough nitrogen.
[Page 14]
James Nardone, a trainer from Nalco, testified that if the seal was broken on a drum dust cap, the only concern was whether or not the bottom valve on the drum was closed (TR 880-1). Brown met with Harkins and Ralph Myers, the safety supervisor, and Brown stated that:
[Page 15]
Thereafter, Harkins informed Brown that Wilson no longer required his employment. Tony Findley, Raylan Jackson, William Elder, and Sammy Hughes testified, in effect, that after the February 28 injury and or on March 30, 1994, Brown pointed to a Nalco drum and stated that this was the drum that caused his injury. Brown stated that the drum did not have a corrosive label, such as RX M, and these drivers concurred in that assessment. However, all four drivers acknowledged that they did not check the billing of lading to see whether or not a corrosive label was required. (TR 190-371) Ralph Myers testified that Brown went through the Wilson hazardous materials course when he was hired in 1990. Myers stated that Brown made no mention of improper labeling after the injury or during the meeting with Harkins on March 30. Myers testified that Brown stated that he had been injured by the contents of the Nalco drum and that he would not pump those products again. Harkins indicated that Brown would be dismissed for refusing to deliver the drum (TR 1110). Myers stated that Brown did not mention use of a respirator on March 30, prior to the hearing for unemployment benefits when mis-labeling was reported. During testimony by Donald Harkins, the following occurred:
[Page 16]
[Page 17]
Harkins testified that the drum had been loaded on a truck on March 30 as indicated by the documents. Livingston informed Harkins that Brown would carry the drum but would not make the delivery. Harkins told Brown of the consequences of not making the delivery. Brown made no mention of improper labeling, and Harkins indicated that such a defect could be easily remedied. Harkins testified that:
Despite the allegations of the Complainant, the testimony of Harkins and Myers suggest that Brown made no complaints of improper labeling to Wilson management, Harkins or Myers, on March 30, 1994. Livingston was specific in the procedures for moving freight in the terminal, and the drivers substantiated the policy of checking and signing off at various steps in the transfers.
[Page 18] The record suggests that Brown verified the freight when he loaded his truck on March 30, 1994 (see RX L). The four drivers who testified regarding an unlabeled drum were uncertain as to the contents of the drum or the necessity for a hazardous chemical label. On review of the record, I must conclude that there is no substantiation that the drum in question was in violation of pertinent regulations regarding transport of hazardous materials. Parts 172, 173, and 177 of 49 C.F.R. have been considered. In addition, one must question whether or not Mr. Brown meets the definition of a "whistleblower." Complainant must first make a prima facie showing that protected activity motivated Respondent's decision to take adverse employment action. In order to establish a prima facie case, a complainant must show that: (1) he engaged in protected conduct: (2) the employer was aware of that conduct; and (3) the employer took some adverse action against him. In the previous discussion, this Administrative Law Judge has followed Brown's contention that he engaged in protected conduct by reporting mislabeling, a safety concern involving the cargo, to his supervisors. However, Livingston, Myers, and Harkins have testified that the complainant did not raise such a concern on March 30, 1994. The STAA requires that the employer have notice that a safety concern has been raised. Therefore, I find that Brown has not established a prima facie case that his complaints regarding mislabeling played a part in his dismissal.
The Nalco Chemical Company utilizes a mini porta-feed chemical handling system to deliver products to its customers. The record indicates that Brown made some 200 deliveries of non-hazardous chemicals for Nalco and three
[Page 19] deliveries of an oxygen scavenger. Brown was trained in "Nalco procedures" by Floyd Pepper, a Wilson employee. Brown has maintained that he never was trained by Nalco personnel and there is no documentation to the contrary. James Nardone, a senior transportation analyst for Nalco, testified that he was responsible for training common carrier drivers in the delivery of Nalco products. Nardone acknowledged that Nalco could not confirm that Brown had received Nalco training in the use of the mini porta-feed system. Nardone testified that training was to be done by Nalco personnel. It would be unacceptable for a driver who had received the training to train another driver (TR 864).
The record shows that Brown was not trained by Nalco personnel and that the Nalco trainer, Nardone, considered Brown's training to be deficient, at the very least. There is no doubt that Brown expressed a legitimate concern when he refused to make further Nalco deliveries which involved the delivery of freight after the truck had reached its destination. Section 405 of the STAA deals with compliance with safety regulations governing commercial motor vehicles. Section 405 contains two provisions relevant to the disposition of this case. Section 405(a) prohibits a commercial motor carrier from discharging, disciplining, or discriminating against an employee in retaliation for filing a complaint or starting a proceeding relating to a violation of a commercial motor vehicle safety provision, or for testifying in such a proceeding. Section 405(b) prohibits a commercial motor carrier from discharging, disciplining, or discriminating against an employee who refuses either to operate a commercial motor vehicle he believes is unsafe or to operate the vehicle under conditions that would violate any federal provision applicable to commercial motor vehicle safety or health. As the complaint was filed after Brown's
[Page 20] dismissal, this case falls under Section 405(b) rather than 405(a). Section 405(b) states that 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 for refusing to operate a vehicle when such operation constitutes a violation of any Federal rules, regulations, standards, 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 unsafe condition of such equipment. The unsafe conditions causing the employee's apprehension of injury must be of such nature that 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. The undersigned previously concluded that the drum was not mislabeled based on the testimony of Harkins and Myers and the four drivers. Despite Brown's allegations of mislabeling, his signature on RX L strains his credibility based on his reputation for thoroughness prior to March 30, 1994. The record does not establish that driving the truck on March 30 would have been in violation of a federal rule. Truck safety defects were not alleged, and the existence of the drum, during transit, was not a health hazard. In essence, Brown was concerned about pumping the hazardous chemical after the drum was removed from the truck. I must agree with the Respondent that this situation falls outside of the provisions of the STAA. Brown was concerned with duties that were beyond the driving of a truck. This Administrative Law Judge has jurisdiction under the STAA which is concerned with the hours of the driver and the safety of the vehicle and its contents.
[Page 21] However, the undersigned concludes that a case has not been made under the STAA as mislabeling has not been documented and as the remaining allegation deals with matters occurring after the cargo has been removed from the vehicle. In Mace v. Ona Delivery Systems, Inc., Case No. 91-STA-10, Sec. Dec. January 27, 1992, it was noted that the Complainant's complaints centered on his extra job assignments, rather than on perceived safety violations (relating to the STAA). See Foley v. J. C. Maxwell, Inc., Case No. 95-STA-11, Sec. Dec. July 3, 1995.
Mr. Brown was discharged as he refused to deliver freight as ordered. As there was no hours of service violation in the assigned trip and as there were no safety violations in the truck or in the cargo, I find no violation under STAA. Mr. Brown may well have raised legitimate issues as to Nalco training and the use of a respirator under the Occupational Safety and Health Act of 1970 (29 U.S.C. 651; 29 C.F.R. Part 1977). However, the Office of Administrative Law Judges does not have general jurisdiction and is limited to jurisdiction under specific Acts. I do not find that I have jurisdiction regarding the above complaints.
On the basis of the foregoing, I recommend that the complaint filed (under the STAA) by Ricky L. Brown be dismissed.
RKM/dlh
NOTICE: This Recommended Decision and Order and the administrative file in this matter will be forwarded for review by the Secretary of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, DC 20210. The Office of Administrative Appeals has the responsibility to advise and assist the Secretary in the preparation and the issuance of final decisions in employee protection cases adjudicated under the regulations of 29 C.F.R. Parts 24 and 1978. See 55 Fed. Reg. 13250 (1990).
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