Sexton v. Kroll's Trucking (Murphy's Garage), 2003-STA-18 (ALJ Dec. 1, 2003)

	U.S. Department of Labor Office of Administrative Law Judges

www.oalj.dol.gov

[skip navigational links] Search | A-Z Index

Find It! on DOL | OALJ Home | OALJ Law Library | About Us

September 24, 2008 DOL Home > OALJ Home > USDOL/OALJ Reporter

USDOL/OALJ Reporter

Sexton v. Kroll's Trucking (Murphy's Garage), 2003-STA-18 (ALJ Dec. 1, 2003)

U.S. Department of Labor Office of Administrative Law Judges
50 Fremont Street, Suite 2100
San Francisco, CA 94105
(415) 744-6577
(415) 744-6569 (FAX)
DOL Seal

Issue Date: 01 December 2003

CASE No.: 2003-STA-00018

In the Matter of:

David Sexton,
Complainant,

vs.

Kroll's Trucking (Murphy's Garage),
Respondent.

David Sexton
Complainant, pro se

Roshdy Baskaron
for Respondent, pro se

RECOMMENDED DECISION AND ORDER

David Sexton complained to the Secretary of Labor that his employer, Kroll's Trucking, discriminated against him by offering him no more work after he told Kroll's dispatcher he would not drive trucks that failed to meet U. S. Department of Transportation safety requirements. After investigation, the Deputy Regional Administrator of the Occupational Safety and Health Administration (OSHA) found that Kroll's trucks met the applicable standards or had minor deficiencies, so that Mr. Sexton could not have had a reasonable belief that driving them endangered either him or the public, and dismissed the complaint. Mr. Sexton objected to the findings, and the matter was scheduled for trial.

He seeks relief under the employee protection provisions of section 405 of the Surface Transportation Assistance Act of 1982, as amended and re-codified at Title 49 United States Code, Section 31105, and under the Secretary's regulations found at Title 29, Code of Federal Regulations, Part 1978. Congress enacted Section 405 to protect employees in the commercial motor transportation industry who make safety complaints, participate in proceedings under the Act, or refuse to commit unsafe acts, from adverse employment consequences because of their actions. See Brock v. Roadway Express, Inc., 481 U.S. 252, 262 (1987), citing 128 Cong. Rec. 32509, 32510 (1982).

[Page 2]

No testimony was taken at the first trial setting; it became a pretrial conference and the case was continued to allow Mr. Baskaron time to find an attorney to represent him, but he never found one. A second setting was continued because of Complainant's back condition, and Mr. Baskaron's heart condition. Neither party was represented when the trial convened in San Bernardino, CA on November 17, 2003. The three exhibits Mr. Sexton offered in evidence were admitted; Respondent offered none.

Mr. Sexton failed to prove he had been hired by Respondent, Murphy's Garage and Towing, or its owner, Roshdy Baskaron (who is known as Rusty¹ ). OSHA's investigation did not identify an appropriate defendant because the claim was rejected. The investigation's findings skirted the issue by naming Kroll's Trucking as Respondent, but put Murphy's Garage in parentheses, implying a relationship between those entities that the investigation neither developed nor described.

Findings of Fact

Rusty Baskaron owns and operates Murphy's Garage and Towing, which repairs trucks and offers a towing service in Victorville, California. English is not his native language; he can understand and speak but cannot read or write English ² .

Rusty Baskaron's nephew, Ed Baskaron, used space at Murphy's Garage to initiate a trucking business, which ultimately failed, called Kroll's Trucking. Angie Uribe was Kroll's dispatcher. Kroll's had no trailers and used three trucks.³ At first Kroll's borrowed poor quality trailers, but ultimately trailers had to be leased. Rusty Baskaron allowed Ed to use one truck he owned. The evidence does not show where the two other trucks came from, but they were not from Murphy's Garage and Towing. If the trucking business got off the ground, Ed Baskaron was to pay Rusty Baskaron rent.

Ms. Uribe and Ed Baskaron interviewed Mr. Sexton for a job as a driver when Kroll's began in business, Rusty Baskaron was in the room but did not participate in the interview. Ms. Uribe telephoned Mr. Sexton to offer him work and was the primary person he dealt with. Mr. Sexton first drove for Kroll's on May 7, 2002; his last trip was on June 21, 2002. None of his paychecks were offered into evidence, as he no longer had them after they were cashed. He testified that Rusty Baskaron never handed him a paycheck, the checks were drawn on an account for Kroll's Trucking at first, and then on a personal account of Ed Baskaron, not on Murphy's Garage. Mr. Sexton thought one check may have been written by Mrs. Baskaron (Rusty's wife), but his testimony on the point was too vague and tentative to accept. Murphy's Garage and Towing never employed Mr. Sexton.

[Page 3]

Mr. Sexton told Angie Uribe and Ed Baskaron about problems with the trucks he was assigned to drive. He logged the deficiencies on the Driver's Vehicle Inspection Reports, forms the U.S. Department of Transportation regulations require drivers to complete and leave in the truck. Mr. Sexton kept his own copies of those forms, he offered them as Exhibit 3. The 13 reports he completed over the time he drove for Kroll's describe deficiencies in all three trucks. These included, among other things, that a truck lacked a mattress in the sleeper cab, another truck vented exhaust containing carbon monoxide into the cab, creating a dangerous condition, a driver's seat belt buckle did not work, brakes were in need of repair, lights were not working, and tires needed to be replaced. He also found a front drive left axel brake was worn out. All were significant problems that ought to have been repaired.

Three times he talked to Rusty Baskaron about the repairs, but which truck or trucks were involved in those conversations is unclear. One of the mechanics at Murphy's Garage did repair work on the trucks, but many of the problems Mr. Sexton included on the Driver's Vehicle Inspection Reports for the trucks went unrepaired.

After Mr. Sexton declined to take trucks with deficiencies on the road, Ms. Uribe told him "You can drive these trucks as they are or not drive." This would be an overt act of discrimination, but the evidence does not show that Rusty Baskaron or Murphy's Garage and Towing were responsible for the actions of Ms. Uribe. There is no basis in the record to treat her as an employee or agent of Murphy's or of Rusty Baskaron.

Mr. Sexton was assigned no more runs after June 21, 2002, although he never was fired. He began to look for other work, which he found by July 24, 2002.

When Ed Baskaron could not make the trucking business profitable after three months, Rusty Baskaron severed his connection with the enterprise. Without a location and one of the three trucks, Kroll's folded. As far as Rusty Baskaron knows, Kroll's Trucking was never incorporated. Ed Baskaron's whereabouts are unknown, so neither party could call him as a witness. I infer from the available evidence that Kroll's Trucking was a sole proprietorship operated by Ed Baskaron.

Conclusions of Law

The Surface Transportation Assistance Act of 1982, codified at 49 U.S.C. § 31105, prohibits "a person" from discharging, disciplining or discriminating against "an employee" in pay, terms or privileges of employment when the employee refuses to operate a vehicle in violation of a regulation of the United States relating to commercial vehicle safety or health. 49 U.S.C. § 31105 (a)(1)(B).

The co-location of Kroll's Trucking and Murphy's Garage and Towing does not, in itself, make Rusty Baskaron responsible for everything that happened there. Mr. Sexton was employed by Kroll's Trucking, but not by Rusty Baskaron or by his business, Murphy's Garage and Towing. Ms. Uribe was the person who engaged in employment discrimination by giving Mr. Sexton no more driving runs after he objected to driving trucks any of Kroll's trucks that had safety deficiencies. The evidence does not indicate that Rusty Baskaron was involved in the operation of Kroll's Trucking, had any authority over Ed Baskaron or Ms. Uribe, could have

[Page 4]

required them to assign any runs to Mr. Sexton, or drop him from any runs. Mr. Sexton failed to show that Rusty Baskaron was personally responsible for the acts of Ms. Uribe, Kroll's dispatcher. See, Kovas v. Morin Transport, Inc., 92-STA-41 (Sec'y Oct. 1, 1993). The evidence gives no basis to treat Kroll's Trucking and Murphy's Garage and Towing as joint employers of Mr. Sexton.

Recommendation

It is recommended that the complaint against Murphy's Garage and Towing be dismissed.

WILLIAM DORSEY
Administrative Law Judge

NOTICE: This Recommended Decision and Order and the administrative file in this matter will be forwarded for review by the Administrative Review Board, U.S. Department of Labor, Room S-4309, 200 Constitution Avenue, NW, Washington D.C. 20210. See 29 C.F.R. § 1978.109(a); 61 Fed. Reg. 19978 (1996).

[ENDNOTES]

¹ Honorifics are not used in references to the Baskarons for clarity, not out of disrespect.

² For this reason at the first trial on April 15, 2003 in Long Beach and on November 18, 2003 in San Bernardino, relatives assisted him with written evidence.

³ One was a white International truck with Murphy's Garage marking on it, one a blue 1992 Freightliner, and the last a Black 1997 truck that was ultimately assigned full time to another driver. Mr. Sexton believes that driver had a lease/option to purchase that truck.