The Department of Labor, Occupational Health and Safety Administration (OSHA) investigated the complaint and dismissed it as lacking merit on September 3, 2003. (RX-2). OSHA found no evidence of discrimination, but rather, evidence that Complainant was discharged because of a failure to follow company policy and procedures in notifying and having inspections and corrective measures taken to address safety concerns. Complainant filed objections to OSHA's determination and requested a hearing which was held before the undersigned on November 5, and 6, 2003 in Houston, Texas.
At the hearing Complainant represented himself. Non-attorneys Darrell Green and Tony Robertson represented DM and RB, respectively. All parties were afforded the opportunity to adduce testimony, offer evidence, and submit post- hearing briefs. Complainant testified and offered 12 exhibits of which the following 9 were admitted: a September 3, 2003, OSHA determination dismissing Complainant's complaint (CX-2); a Travel Center of America work request dated March 7, 2003 (CX-3); a March 10, 2003 vehicle inspection report from the Tennessee Department of Safety (CX-4); a Travel Center of America work request dated March 9, 2003 (CX-5); a commercial bill of lading dated March 8, 2003, issued by U.S. Army, Fort McCoy, Wisconsin (CX-6); a tractor annual vehicle inspection report dated February 17, 2003 (CX-7); a diploma from U.S. Army dated August 30, 1973, showing Complainant's successful completion of an electrical/electronic repair course (CX-8); a U.S. DOT Compliance and Vehicle Inspection report of DM dated September 19, 2003 (CX-9); a U.S. DOT compliance and driver inspection review of DM dated September 19, 2003. (CX-10).
Respondents introduced 5 exhibits which were admitted: including a copy of an independent contractor agreement between DM and RB (RX-1); an inspection report on Complainant's truck by the Tennessee Department of Safety dated March 10, 2003 (RX-2); RB truck maintenance records for March 20 and April 20, 2003 (RX-3, 4); and DOT internet compliance records of DM as of November 2, 2003 (RX-5). Respondents called 5 witnesses: Darrell Green, Tony Robertson, Henry Herring, Raymond W. Green and Harold Robertson. Neither party filed a brief in this matter.
Forrest alleged that he was employed by both Respondents, and that when Tony Robertson terminated him on March 12, 2003, he did so because he (Forrest) reported malfunctioning brakes on March 7, 2003. Robertson, on the other hand, contends that he terminated Forrest because of Forrest's refusal over a 3 month period to abide by company rules about obtaining prior authorization for truck repairs, mailing in paperwork including expenditure receipts after making deliveries, keeping a company cell phone with him while on the road so as to permit frequent conversation between Robertson and Forrest, and refusing to delivery an empty trailer to Vernon, Alabama.
II. ISSUES
1. Whether RB or Respondents (RB and DM) as joint employers employed Forrest as an over the road truck driver from December 12, 2002 to March 12, 2003.
2. Whether RB or Respondents as joint employers terminated Forrest on March 12, 2003 in violation of Section 31105 (a)(1) the Act, because of Forrest's protected activity in reporting malfunctioning brakes to Tony Robertson on March 7, 2003.
III. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Background
Respondents are persons and commercial motor carriers within the meaning of Sections 31101 and 31105 of the Act. DM is an affiliate of JHT Holdings Company and is located in Kenosha, Wisconsin where it is engaged in the business of leasing trucks (tractors) and trailers for the interstate transportation of metal sheets, coils, and rolls, logs, poles, beams, lumber, building materials, and machinery throughout the United States, Canada and Mexico.
DM leases 1,089 trucks and uses the services of 1080 drivers which it designates as independent contractors. (RX-5; Tr. 293-305) These drivers run under DM's DOT authorization. (Tr. 249). In addition, DM utilizes the services of about 160 agents who solicit customers for DM's trucking operation. About 60 of these agents also function as independent contractor drivers delivering cargo to designated customer locations. DM provides insurance for its independent contractor drivers and agents paying independent contractor drivers 75% out of 100% of the gross freight revenues, plus a cash safety bonus. In turn, DM requires contract drivers to submit logs, bills of lading, toll, and fuel receipts after each delivery. (Tr. 332-343).
DM conducts back ground checks on all drivers to insure they meet insurance requirements. (Tr. 235). DM maintains its own separate personnel policies and does not share any common management, ownership, control or personnel with any independent contract driver or agent. (Tr. 238, 239). DM has a central dispatch service which contract drivers can use if they want to secure new loads. Contract drivers are free to reject such loads and can chose the routes they drive. DM provides billing and administrative services for contract drivers. In turn, contract drivers such as RB are responsible for direct supervision of and determining % of gross revenues each of their drivers receive. Contract drivers are also responsible for paying fringe benefits, and making payroll, and tax deductions for their drivers. (Tr. 240-253).
Each contract driver signs an independent contractor agreement with DM. The agreement between Respondents that was in effect during Forrest's employment ran from March 15, 2002 through March 14, 2003, and thereafter, was renewed for an additional year. (RX-1). According to this agreement, DM agrees to pay RB 76% of the gross line haul revenues. In turn RB determines the method, means, and manner of performing the deliveries in accordance with rules and regulations of appropriate agencies and is solely responsible for withholding state or federal taxes and providing workers' compensation or unemployment insurance, fuel, oil, tires and maintenance necessary for safe equipment operation. (RX-1).
Section 4 (d) of the contract provides as follows:
That CONTRACTOR and all personnel furnished or used by CONTRACTOR including drivers, drivers' helpers and laborers, are the employees or agents of CONTRACTOR and not the employees or agents of CARRIER and, as such, CONTRACTOR will be solely and totally responsible for:
i. the payment of all such personnel, including drivers, drivers' helpers and laborers;
RB is a partnership consisting of 3 equal partners (Tony, Billy and Harold Robertson. (Tr. 365.). RB owns 4 trucks under contract with Respondent DM. RB has had contracts with RB since November, 1997. Individual driver applicants for RB are required to fill out a DM application and undergo a pre-employment screening by DM which includes a check out of references, drug screening, and physical. Once this is accomplished, RB is free to hire or reject the applicant. (Tr. 365-369). RB sets its driver wages at 22% of gross delivery revenues. Drivers are free to accept or reject loads from either RB or DM. (Tr. 370-373). Customers direct when loads are to be picked up and delivered. (Tr. 375). As of November 2, 2003, DM had undergone 1961 vehicle and 2957driver DOT inspections over the past 24 months resulting in 539 vehicles and 262 drivers out of service violations for an overall satisfactory rating. (CX-9; RX-5).
B. Forrest's Work History
Forrest has a 12th grade education with 3 years service in the U.S. Army where he drove trucks for about 2 years. (Tr.69) Following his discharge, Forrest worked as a pipe-fitter for 14 years after which he returned to truck driving in November, 1995. (Tr. 70-73). On December 12, 2002, RB hired Forrest as a truck driver after his approval by DM. (Tr. 74-80). Tony Robertson assigned Forrest to drive truck 33137, and provided loads and a cell phone paying Forrest 22% of gross load revenues. Forrest was instructed to call in daily and secure prior approval before having truck repairs. (Tr. 85, 86). Forrest did neither.
On the morning of March 7, 2002, Forrest had completed delivery of duck work in East Chicago, Illinois, and while en-route to Gary, Indiana, began to experience brake problems at about 8:00 a.m. Forrest pulled off the highway and into a Travel Center of America truck stop. (Tr. 87-93). Forrest called Tony Robertson, but was not able to reach him immediately, so he left a voice message explaining the brake problem. After waiting about a minute, Forrest went into the truck stop, talked to a clerk about getting the truck inspected, and repaired whereupon the clerk called Tony Robertson for authorization. Robertson denied authorization and then directed the clerk to hand the phone over to Forrest at which point Robertson told Forrest he was fired. (Tr. 94). An argument ensued whereupon according to Forrest, Robertson allegedly told him to clean out his truck and find his own way home. (CX-3; Tr. 95, 96). Robertson told Forrest that his brother Harold was across the street at another truck stop and would come over in a few minutes. Harold Robertson arrived on the scene shortly thereafter, took the truck for about 20 to 30 minutes and repaired or unfroze the brakes by pouring glycol in the air compressor. (Tr. 95-102).
Tony Robertson apparently changed his mind about immediate termination and instead directed Forrest to drive to Fort McCoy, Wisconsin, to pick up another load to be delivered to Jacksonville, Florida. While en-route to Fort McCoy, Forrest decided to have his truck inspected and pulled into a closed Illinois scale house. There he demanded an inspection because allegedly, the brakes on his trailer were not releasing. Forrest became so obnoxious that the officer in charge threatened him with arrest if he did not leave. (Tr. 126-130). Harold Robertson, who was also driving to Fort McCoy, followed Forrest into the scale house and witnessed Forrest's antics and near arrest. Harold Robertson also observed that Forrest had a microphone cord wrapped around a hand valve which in turn caused the trailer brakes not to properly release. (Tr. 486-492, 505-507).
After picking up a load at Fort McCoy, on March 8, 2002, Forrest proceeded to Jacksonville. En-route, Forrest stopped at a travel center truck stop in Nashville, Tennessee, on March 9, 2003 and had the truck and trailer inspected getting authorization from Respondents DM night dispatcher, Shannon followed by another inspection the following day by the Tennessee Department of Safety. (CX-4, 5, 6; Tr. 254, 255). The March 8th thirty minute inspection showed work needed to be done on the steering shaft and u-joints, shocks, tires, brakes of right front and left rear, left muffler, u-bolts on rear springs and turn signal. (CX-5). The March 9th two hour and fifteen minute inspection by the Tennessee Department of Safety, showed no brake problems, but rather the following: left lower front auxiliary lamp missing, steering shaft looseness, universal joint looseness, drag link ball and socket joint looseness, eroded muffler, non-secured fire extinguisher, worn out left axle 3 shock absorber, inoperative left side center auxiliary turn signal and inoperative right side auxiliary marker lamps. Warnings were issued for these defects, but Forrest was allowed to continue driving since none of the equipment defects rendered the truck out of service. (CX-4; Tr. 177). Forrest then proceeded to Jacksonville where he delivered the load on March 11, 2003 and then drove back to RB office in Millport, Alabama, where he was given a bus ticket to his home. (Tr. 103, 104). RB repaired the truck within 15 days after citation followed by timely notification by DM. (Tr.258-262). 2
Forrest contends that Tony Robertson never, on either March 7, 2003, when initially informed of his discharge, or on March 12, 2003, when he returned to Respondent RB's Millport office, told him the reason for his discharge, thus leading him to the conclusion that he was fired because he reported malfunctioning brakes. Tony Robertson, on the other hand, contends there were multiple reasons for Forrest's discharge, none of which had anything to do with report of safety problems. (Tr. 427-429). Rather Robertson argues, and the record shows that Forrest failed to follow RB rules dealing with seeking prior authorization for repairs. (Tr.123, 171, 376; 394-410); mailing in logs and paperwork after unloading cargo for which RB provided self-addressed stamped envelopes. (Tr. 134-144, 448) ; keeping Respondent's cell phone with him when on the road (Tr. 140, 378-385, 412) and refusing to drive an empty trailer to Vernon, Alabama. (Tr.145, 146, 413-415, 434). Other drivers, (Henry Herring, Raymond Green), had no trouble observing these rules and no problem in getting their safety concerns addressed and corrected by Robertson. (Tr. 459-463, 469-471,473-475).
Based upon the entire record, I credit Tony Robertson that he terminated Forrest because he was an uncooperative employee who refused to follow company rules, involving seeking prior authorization for repairs, mailing in paperwork after delivering cargo, keeping a company cell phone with him when on the road and refusing to drive an empty trailer to Vernon, Alabama, which Robertson described as returning a favor since he had been the beneficiary of having another driver deliver an empty trailer to that location. Indeed, Forrest never denied failing to: (1) get prior authorization; (2) keep the company cell phone with him; (3) mail delivery and fuel records; and (4) deliver an empty trailer to Vernon, Alabama.
E. Discussion, Conclusion, and Recommended Order
Concerning the issue of joint employer, the Fifth Circuit in Skidmore v. Precision Printing, 188 F.3d 606 (5th Cir. 1999) stated that in Title VII cases the four factor test adopted by the United States Supreme Court in Radio Union v. Broadcast Service, 380 U.S. 255, 257 (1965) should be applied when determining the existence of a joint employer relationship, namely: (1) interrelation of operations; (2) centralized control of labor relations; (3) common management; and (4)common ownership or financial control. Of these criteria the most important is the centralize control of labor relations such that many courts have focused almost exclusively on that factor in order to determine which entity makes the final decision regarding employment matters relating to the person claiming discrimination. See Schweitzer v. Advanced Telemarketing Corp. 104 F.3d 761, 764 (5th Cir.1997). In the present case, there is no evidence of centralized control of labor relations, common management, common ownership or financial control. The only evidence of interrelation of operations comes in DM screening drivers to make sure they meet insurance requirements and DOT regulations. Drivers who fail to meet such cannot drive trucks leased to DM. DM played no part in the final decision to either hire or terminate Forrest.
In determining the existence of independent contractor versus employee status, the Fifth Circuit in Hathcock v. Acme Truck Lines, Inc. 262 F. 3d 522, 526 (5th Cir. 2001) in Title VII and ADEA cases has employed a hybrid economic realities/common law control test focusing on whether the alleged employer had the right to hire and fire, supervise, set the work schedule, pay the employee's salary, withhold taxes, provide benefits and set the terms and conditions of employment. In examining employee status under the FLSA, the Fifth Circuit considers five factors: (1) degree of control exercised by the alleged employer; (2) the extent of the relative investments of the worker and alleged employer; (3) the degree to which the worker's opportunity for profit or loss is determined by the employer; (4) the skill and initiative required in performing the job; and (5) the permanency of the relationship. Under either test, RB is an independent contractor determining the conditions of Complainant's employment, hiring, firing, supervising, setting the pay and work rules, providing job assignments and workers compensations insurance and withholding taxes. Forrest was thus an employee of independent contractor RB, and not Respondents. Since Forrest produced no credible evidence that DM played any roll in Forrest's discharge or that DM was a joint employer, I find no evidence to hold DM responsible for Forrest's termination.3
In order to prevail on a retaliatory discipline or discharge claim under the Act, a complainant must prove: (1) he/she engaged in protected activity under the Act; (2) the employer took adverse employment action against him/her; and (3) the employer's reason(s) for the adverse action were discriminatory and due to the protected activity. BSP Transp Inc. v. U.S. Department of Labor, 160 F.3d 38 , 46(1st Cir. 1998); Castle Coal & Oil Co., Inc. v. Reich, 55 F.3d 41, 46 (2nd Cir. 1995); Moon v. Transport Drivers, Inc., (6th Cir. 1987); See Yellow Freight System, Inc. v Reich, 27 F.3d 1133, 1138 (6th Cir. 1994). Such claims are often analysed under the familiar burden shifting framework of Mc Donnell Douglas Corp., v. Green, 411 U.S. 792 (1973). However, where as here the employer has satisfied its burden of producing evidence of a non-discriminatory reason for adverse action the Mc Donnell Douglas framework falls by the wayside with the trier of fact faced with the ultimate question of whether the employer intentionally discriminated against complainant or whether complainant established the elements of his/her case by preponderance of credible evidence.
In the present case, I find that Forrest's action in reporting frozen brakes on March 7, 2003, was protected activity, and further, that employer, Respondent RB took adverse action against him. However, I find no credible evidence to link Forrest's discharge with any protected activity including the reporting of malfunctioning brakes. Rather I find and credit Tony Robertson's testimony that Forrest's action in reporting the frozen brakes had nothing to do with his discharge. Rather, Tony Robertson discharged Forrest because of Forrest's persistent misconduct over a 3 month period in failing to follow company rules as detailed above. On March 7, 2003, Forrest did not give Tony Robertson a chance to return his call before he sought an inspection and repair at the Gary, Indiana, truck stop. As it turned out, Harold Robertson was near by and was able with minimal expense to unfreeze the brakes. Robertson had repeatedly instructed Forrest to obtain prior authorization as occurred on December 17, 2002, when Forrest experienced heater or water hose problems in Wichita Falls, Texas, and on a January 25, 2003 trip to Houston, when Forrest had speedometer problems. (Tr. 394-404). Forrest's action in not waiting was consistent with past misconduct and evidenced an intent not to comply with Respondent's RB work rules.
In essence, I find no credible evidence that RB discharged Forrest in violation of the Act. Accordingly, I find no merit to Forrest's complaint and recommend dismissal of such.
CLEMENT J. KENNINGTON
NOTICE : This Recommended Decision and Order and the administrative file in this matter will be forwarded by the Administrative Review Board, U. S. Department of Labor, Room S-4309, 200 Constitution Ave., NW, Washington, D.C. 20210 See 29 C.F.R. § 1978.109(a); 61 Fed. Reg. 19978(1996).
[ENDNOTES]
1 . Respondents exhibits are designated RX- Transcript pages are designated Tr. .
2
3
