JX 1. During the course of the hearing, the parties entered into the following additional stipulations:

1. If called to testify, Pat Dirk would testify that he drove T416 on or about January 31, 2000, that he test drove the vehicle on freeway or highway 512 at highway speeds between 45 miles per hour (MPH) and 60 MPH, and, as Mr. Goerisch testified, he related back his findings to Mr. Goerisch that he was unable to duplicate the alleged shimmy, the shimmy that other drivers had reported, and on that basis, work was performed to at least further examine that condition.

2. Respondent's Exhibit 4, the invoice prepared by Mr. Goerisch on behalf of Dirk's and forwarded to Liquid Sugars, MCP, describes or relates the actions taken by Mr. Dirk in conjunction with RX 4.

3. The work which was actually performed by the mechanic is described on the fourth page of RX 4, and the mechanic, Mr. Tremblett, if called to testify, would testify that he found a "little (very little) movement in the red end" and that he checked the spring pins on the bushings, the king pins and the wheel bearings and that, in fact, he did perform all of those physical inspections and performed the work as described throughout RX 4.

4. With regard to RX 11, that truck number T416 was, in fact, taken to Valley Freightliner on January 28, 2000 and was taken into the service department there with a request to "check and advise for vibration at 59 MPH - loaded or empty" and that, in fact, the mechanics at Valley Freightliner performed various functions, including those described on Exhibit 11 related to trouble-shooting and test-driving the vehicle for vibration. They checked the ride height, the front end, and the mechanics or mechanic found that the tires on the number two axle were mismatched, as is further described actually on RX 11.

5. If called to testify, Curtis Martin of Tiny's Tire Center would testify that he spoke to Bill Thomas on two occasions on the morning of February 18th, that on the first occasion in response to Mr. Thomas's inquiry as to what if anything had occurred in connection with truck 416 on February 11th, he told Mr. Thomas that John was not there right now, but that John lived close by, that he would go check with John, that in a second conversation with Mr. Thomas on the morning of the 18th, he advised Mr. Thomas that he had spoken with John, that John had not done the work, that an employee, Bill, had done the work, and that Bill had advised him that there were no problems with the undercarriage of the vehicle and that Bill had advised Mr. Helgren of that and that Mr. Helgren did seem unusually adverse to the condition of the vehicle, as if he were trying to find something wrong with it and that further, Mr. Martin thereafter authored and sent RX 15 by fax to Mr. Thomas that morning.

TR 977-85. The parties' stipulations are adopted as findings.

   A. Background

   The Respondent MCP which is sometimes referred to in the record by its former name, Liquid Sugars or LSI, produces and sells corn syrups (liquid product) and granulated sugar (bulk or dry product). MPC operates a distribution facility or terminal located in Puyallup, Washington from which the company's products are distributed to customers in the Pacific Northwest. TR 698-702 (Thomas). Distribution of these products is accomplished by drivers operating trucks with attached trailers. During the time periods involved in this matter, there were five trucks assigned to the Puyallup terminal as well as a sixth truck which was on loan from MCP's Portland, Oregon facility. TR 702-706 (Thomas); RX 5, 6.

   MCP's operations at the Puyallup terminal are supervised by a terminal manager who at all times relevant to this proceeding was William "Bill" Thomas. TR 31-32 (Helgren), 699 (Thomas). Thomas, in turn, reports to Kevin Lewis, MCP's area manager in Portland, Oregon. TR 709 (Thomas). The Puyallup terminal also has an assistant terminal manager, Jesse Gonzales, who oversees the dispatch of drivers and who is primarily responsible for scheduling and coordinating with outside mechanics any maintenance and repair work on MCP's vehicles. TR 708-712 (Thomas). In addition to these supervisory functions, Gonzales functions as a truck driver, spending between 50% and 75% of his time making deliveries from the Puyallup terminal. TR 1207 (Gonzales). At all times relevant to this proceeding, MCP employed approximately 13 other individuals at the Puyallup terminal: an office clerical; a plant maintenance worker; five product handlers whose functions include transferring MCP's products from rail cars to storage tanks and loading trailer units for delivery to MCP's customers; and six truck drivers (Kenneth Helgren, Brian Cook, Richard Jensen, Billy Wayne Moore, Shannon Hinkle and Kerry Fagen). Some truck drivers, including the Complainant, were cross-trained as product handlers. TR 716-717 (Thomas).

   The Complainant, Kenneth Helgren, has worked as a truck driver since 1990, and he possesses a Class A commercial driver's license with T and X endorsements. TR 26-28 (Helgren). He was hired by Respondent as a truck driver at its Puyallup terminal as a truck driver/product handler in May 1999 and worked for MCP until February 18, 2000 when he was suspended and eventually terminated. TR 25 (Helgren). Helgren's duties at MCP included loading liquid and solid sugar products into a truck, transporting these products to Respondent's customers and unloading the products into the customers' containers. TR 28-30 (Helgren). He generally worked eight hour shifts which started between 3:30 a.m. and 12:00 noon, and he would call the terminal after 5:00 p.m. to learn what his dispatch would be the next day and what time he would be required to report to work. TR 29-32 (Helgren). Although each of the truck drivers was assigned a particular truck, which in Helgren's case was truck 322 ("T322 "), drivers could be assigned to drive any available vehicle on a given day based upon the day's dispatch needs. TR 726-727 (Thomas), 1207-1208 (Gonzales). The Puyallup drivers average between five and ten deliveries per week, some days making no deliveries and as many as three deliveries on other days. TR 726 (Thomas). Helgren's starting wage rate was $13.50 per hour, and he received a raise to $14.50 per hour after he successfully completed his probationary period in August 1999. TR 43-44 (Helgren). At that time, he received a performance appraisal from Thomas who rated him as "exceeds expectations" on four of eight appraisal factors and "meets expectations" on the remaining factors. CX 3.

   B. MCP's Vehicle Maintenance and Safety Policies and Practices

   MCP's Puyallup terminal has a formal motor vehicle maintenance program which provides two levels of periodic service. An "A" service is performed every 7,500 miles and involves greasing the vehicle and checking and, replenishing as needed, all fluids. TR 738 (Thomas), 1209 (Gonzales). A "B" service is performed every 15,000 miles and includes changing the oil and filters, another greasing and a full inspection of the vehicle, including the suspension and other mechanical components. TR 739 (Thomas), 1209 (Gonzales). As indicated above, these periodic services are scheduled by Gonzales as part of his duties as the assistant terminal manager. TR 1209-1210 (Gonzales). Both the "A" and "B" services are performed at the Puyallup terminal by a contractor, Valley Freightliner, which employs a mobile service mechanic, Brian Gallup. TR 739-741 (Thomas), 1209 (Gonzales). If Gallup is unable to perform a necessary repair, the vehicle is sent to an outside shop. Thomas is responsible as terminal manager for approving or pre-approving any maintenance or repair work that is to be performed on the MCP's vehicles, and he has independent authority to approve all billings up to $500.00 for work on the vehicles. Work costing over $500.00 is submitted as a proposed purchase order to the MCP area manager in Portland, Kevin Lewis. TR 742 (Thomas). Thomas has never refused to approve any maintenance or repair work recommended by a mechanic, and Lewis has not refused to approve any of the proposed purchase orders submitted by Thomas. TR 742-745 (Thomas).

   The Puyallup terminal also has a formal employee safety program that begins with safety training as part of every employee's orientation. TR 728-729 (Thomas). Safety is stressed in employee orientation and in the MCP employee handbook. TR 731 (Thomas); CX1 at 40. MCP requires each driver to pass a road test to ensure that he/she can properly operate both the tractors and the different types of trailers used at the facility. MCP also holds safety meetings, lasting from 40 minutes to over an hour, at least twice-monthly for all employees. At these meetings, general safety practices and specific safety issues that have arisen at the facility are discussed, and written minutes of the safety meetings are prepared and posted. TR 736 (Thomas). Additionally, MCP has developed specific written policies and procedures for its truck drivers which emphasize motor vehicle safety and the reporting of safety hazards. TR 730-731 (Thomas); CX 2. Specifically, LSI Transportation Procedure #402, Driver Instructions, in pertinent part states,

     4.0     EQUIPMENT
              4.1 A written pre-trip inspection must be done daily on each
                  piece of equipment operated.  The driver must determine if
                  the equipment is safe before leaving.  NO UNSAFE
                  EQUIPMENT IS TO BE OPERATED.  (Complete
                  DRIVERS' INSPECTION REPORT, LSI FORM #108.)

              4.2 Tires, windshield wipers, tire chains, brakes, air loss. 
                  All lights, fuel, oil, water, hydraulic oil, are only some
                  of the things to be checked daily.

              4.3 Equipment must be clean (truck & trailer). This is a food
                  grade product, treat it as such.

              *     *     *     *     *

              4.6 A post trip inspection is required at the end of trip.

CX 2 at 3 (boldface in original). Pursuant to this instruction, MCP drivers perform both a

   In addition to reporting problems or concerns on the DVIR forms, it is undisputed that MCP drivers can report serious safety hazards directly to Thomas or Gonzales. TR 512-513 (Moore), 773-774 (Thomas). Each driver has a "Nextel" phone, a combination telephone and walkie-talkie, with them while driving, and the drivers have been instructed that they should use the phone to call Thomas or Gonzales if a condition arises while driving which makes further operation of the vehicle unsafe or impractical. TR 204-205 (Helgren), 747-748 (Thomas).

he commented that T416 "pulls to the left, shakes, rattles and goes bump." JX 5 at 29. At Gonzales's request, Brian Gallup, the Valley Freightliner mobile mechanic, inspected T416's front end on the evening of January 20 and found that the spring pins needed more grease which, in his opinion, was the cause of the popping or clunking noises. TR 1155-1159 (Gallup). Gallup then wrote the following note to Gonzales on the January 18 DVIR: "Spring Pins all took grease & didn't show much sign of wear, but was the popping. Probably worn in & will need to be replaced. I'll talk to you tomorrow on it." JX 5 at 27. Gallup testified that he also checked the king pins, wheel bearings, tie rod ends, drag links, steering box and steering U-joints and found no problem whatsoever with any of these parts or the T416's frame assembly, and no condition which raised any immediate concern or safety issue. TR 1159-1160. MCP was billed for the Gallup's work on T416. RX 9. Because Gallup did not have the necessary equipment to perform an on-site front end alignment check, Gonzales scheduled an appointment for T416 to be checked at Valley Freightliner on January 28. TR 1223 (Gonzales).

   Gallup's work on T416's brakes did not remedy the reported vibration problem as Cook wrote that the "truck shimmys [sic] after about 45 or 50" when he completed a DVIR on January 27. JX 5 at 38. The following day, Cook drove T416 again and, consistent with Gonzales's earlier statements that drivers did not need to repeatedly write up the same problem, his DVIR for January 28, 2000 lists no defective items and simply states that the truck is "OK." JX 5 at 39.

   On the evening of January 28, T416 was brought to Valley Freightliner with instructions to "c[heck] and advise for vibration at 59 mph - loaded or empty." RX 11. Valley Freightliner's invoice reported that it trouble shot and test drove T416 on January 29 and checked the ride height, drive line, and front end. The invoice further states, "found tires on #2 axle mismatched - (17/32 & 6/32) the outside tire is larger than the others (it weighs more) causing the vibration." RX 11. After T416 was returned from Valley Freightliner, Gonzales wrote "completed" on the January 18 DVIR. JX 5 at 28. On January 31, Gonzales requested a price quote for four new tires from Tiny's Tire Service, and a purchase order for the tires was then prepared. TR 1238 (Gonzales); RX12.

   The record shows that Helgren drove T416 twice on Monday, January 31, after the truck had been returned from Valley Freightliner. Following his first trip, Helgren checked on the DVIR that the frame and assembly, front axle, suspension system and steering were defective items, and he remarked that there was a "clunking noise in front end and still shakes in the front axel [sic] when steering loaded or empty." JX 5 at 40. After this DVIR was turned in, Gonzales wrote "front end checked OK 1-29-00 R/S front drive has miss [sic] matched tire causing shake." Id. After his second trip on January 31, Helgren checked brake accessories, frame and assembly, front axle, suspension system and tires as defective items. He indicated that the truck's condition was not satisfactory, and he wrote the following remarks:

Officially taken "out of service" and red tagged, according to DOT Rules and Regulations. Front axle and suspension need taken out and rebuilt to find problem. Left front brake grabs hard and pulls truck out of lane and steering shakes all the time.

JX 5 at 41 (quotations in original). Helgren testified that after he had "red tagged" T416, Thomas informed him that Valley Freightliner had determined that the vibration problem was being caused by the mismatched drive axle tires, and Helgren responded that he was so confident that this was not the source of the problem that he was willing to bet his house on it. TR 1321. Helgren testified that he also told Thomas that based on his experience driving T416, he did not think that the shops were giving Thomas accurate information regarding T416's problems, and he explained that it was his belief that the vibration in the hood and mirrors and the front end clunking could not be accounted for by mismatched tires. TR 1321-1322.

   When Helgren took T416 out of service, MCP decided to take the truck to a second shop, Dirk's Truck Repair, for evaluation. Gonzales drove T416 to Dirk's and explained to the manager, Robert "Spike" Goerisch, that there had been a complaint about steering wheel vibration and movement, that MCP wanted Dirk's to check out the front end and make sure everything was okay, that he was not sure what the vibration was, and that Dirk's should "just find it and fix it." TR 674 (Goerisch), 1237 (Gonzales). Dirk's performed several tests on the vehicle and did a comprehensive inspection. TR 676-679 (Goerisch), 977-979 (stipulation). Additionally, Gonzales took T416 to Tiny's Tire where the mismatched drive axle tires were replaced, and the truck was taken to a third shop, M&M Truck Repair, where the tires were spun tested. TR 1112-1113 (Thomas), 1239-1240 (Gonzales). Dirk's invoice summarizes its work and findings as follows:

Vehicle brought to shop to inspect for vibration and pulling on brake application. Jack up truck and check the king pins no problem found. Inspect tie rods and tie rod ends no problem found Check spring pins/bushings and hangers no problem found. Check suspension no problem found Sent vehicle to Tiny's Tire They replaced drive axle tires They removed front wheels and balanced the tires and reinstalled This took out most all of the vibration The truck was taken to another shop and they put the truck up on a tire runout machine and no problems were found This vehicle is safe to drive. Vehicle T416 Freightliner. License YACX991. Mileage 77344.

   On February 17, Jensen listed the clutch, front axle, steering and "other" as defective items and he included the following remarks: "DVIRs 2-1-00 thru 2-9-00 missing from report book. King pins R/R per John @ Tiny's Tire Service." JX 5 at 56. As discussed below, Helgren refused to drive T416 on February 18, resulting in his suspension and eventual termination. On the evening of February 18, T416 underwent regularly scheduled "B" service by Gallup at the Puyallup terminal. Gallup checked the front end, including the king pins, and testified that he found no defective condition or safety hazard. TR 1174-1178; RX 16. Upon completion of the "B" service, Gallup checked the "ABOVE DEFECTS CORRECTED" box on the February 16 DVIR and signed on the mechanic's signature line. JX 5 at 55; TR 1174 (Gallup). Gonzales also placed a notation on Jensen's February 17 DVIR that reads, "B-service completed 2-18-00 truck has been checked." JX 5 at 56.

   Based on the foregoing, it is undisputed and I find that from mid-January 2000 through late March 2000, MCP drivers experienced conditions in T416 which included front end vibrations or shimmying, drifting off center and irregularities during braking. It is also undisputed and I find that during this period, the Respondent had T416's front end, including the steering and front axle components, checked out by several different mechanics and mechanical repair shops; that the Respondent initiated several different corrective attempts at the suggestion of these mechanics (e.g., greasing spring pins, replacing rear brake slack adjusters, adjusting brakes, replacing and balancing tires and replacing brake drums) which did not completely or permanently resolve the reported conditions; that T416 was declared safe to drive by each mechanic who inspected it; and that the drift and vibration or shimmy was finally corrected at the end of March 2000, after Helgren's termination, when T416 underwent a four-way alignment, during which it was discovered that one of the rear drive axles was misaligned, and tire rotation. Although these basic facts are undisputed, the testimony offered by the witnesses at the hearing varied greatly with respect to the severity of the reported conditions.

   Helgren and the other MCP drivers called at the hearing portrayed what appear to be significant and potentially unsafe conditions in T416 during the January - February 2000 time frame. Helgren testified that the cab of T416 shook erratically from the tires bouncing on the road at speeds between 50 MPH and 60 MPH and that the shaking was severe enough to prevent him from seeing images clearly in the truck's rear view mirrors. TR 64-65, 93, 162, 201-216. He additionally testified that he encountered "a bumping noise under the floorboards in the front of the truck" in mid-January that he could feel in his feet when turning at 25 MPH to 35 MPH. TR 65, 201.

   Referring to the DVIR he completed after driving T416 on January 27, 2000, JX 5 at 38, Cook testified that when he drove T416 on January 27, 2000 the truck shimmied and that the steering wheel "violently" shifted about four or five inches from left to right at speeds between 45 MPH and 50 MPH. TR 420-421. Cook further testified that between late January and March 20, 2000, he experienced shimmying in T416's steering as well as pulling to the right several times which he reported to MCP management. TR 454-455. He also acknowledged that the problems temporarily abated after MCP attempted different corrective measures but eventually reappeared:

You know, there was times that the truck drove good. You know, they'd replace the tires, the truck drove good for, you know, a little while, a couple of days a week or whatever, and then it got worse. And there's times that they did other things, you know, and it drove fine for a little while.

TR 460. Moore testified that he had observed a "front end wobble or shimmying" of varying intensity while driving T416 at around 50 MPH such that it

   After reviewing the entire record, I am satisfied that the truth regarding the severity of T416's problems lies somewhere between these two conflicting lines of testimony. If fully credited, the descriptions offered by Helgren, Cook, Moore and Jensen suggest that the condition of T416 was so severe at times that images were obscured in the rear view mirrors, the steering wheel moved erratically back and forth and was tiring to control, the cab appeared to be on the verge of self-destruction and the truck would swerve out of its lane when the brakes were applied with force. It is simply unbelievable that experienced, prudent and reasonable drivers would continue to willingly drive a vehicle in this condition as these drivers allegedly did, day after day. Clearly, a certain degree of exaggeration and inflation is present in these accounts. On the other hand, I find the characterization by Gonzales and Thomas that the vibration was no more than an "annoyance" and comparable to the "normal" hood movement in any truck to be equally unconvincing in light of the repeated mechanical interventions that were undertaken to identify and correct the problems. I do not consider it credible that a reasonable and prudent employer would go to the lengths that MCP did in this case just to placate a group of ultra-sensitive (or as MCP argues, mendacious) drivers if it truly believed that T416 was operating normally and with no more than a minor, annoying vibration. Moreover, their understatement is belied by that fact that Gonzales himself was sufficiently motivated by the persistent vibration problem to spend nearly $800.00 on new front tires. RX 14a. This said, I find that T416 operated abnormally during January, February and March 2000 in terms of excessive vibration, steering drift and occasional irregularities while braking.

   D. Events Leading to Helgren's Suspension and Termination

       1. Helgren's "Red Tagging" of T416 on January 31, 2000

       2. Helgren's Refusal to Drive T416 on February 2, 2000

       3. The Trips to Tiny's Tire and Valley Freightliner on February 11, 2000

Q. Was John mentioned by anyone?

A. On that date?

Q. Yes.

A. No.

Q. So you never mentioned the name John to Mr. Jensen?

A. Yes, I did.

Q. On that day?

A. No.

Q. Okay. All right. So you've now told me everything you said during that conversation, is that correct?

A. Correct.

responded that John was not there at the time. TR 1270 (Gonzales). Thomas testified that he called Martin back, explaining that he needed an answer because a driver was refusing to operate T416 based on something John had reportedly said about the king pins, and Martin agreed to go to John's home. TR 857. Thomas further testified that Martin called back about 15 or 20 minutes later to report that John had not worked on T416, that another tire changer, Bill, had done the work and had said nothing about the king pins and that Helgren had tried to get him to find something wrong with T416's front end. TR 858-859. At Thomas's request, Martin then faxed the following statement to Thomas:

On Friday February 11th a freightliner truck owned by Liquid Sugar Inc. came into our shop to have two new tires put on. The driver constantly engaged our employee in conversation and asked numerous questions about the mechanical fitness of this truck. Our employee checked the undercarriage and saw no problems and informed the driver of this. Bill (our employee) finished the installation of the tires, the billing was made, but Bill did note that the driver was unusually adverse to the condition of the vehicle almost as if he were trying to find something wrong with it.

   The foregoing summary of the testimony shows that there is a sharp divergence as to what Helgren said to Gonzales during their initial conversation on the morning of February 18 when Helgren first refused to drive T416. Helgren claims that he told Gonzales that he would not drive because there was still something wrong with T416 and the paperwork, Jensen's February 17 DVIR, had not been signed by a mechanic indicating that the work had been done. Gonzales denied that Helgren ever mentioned the DVIR and lack of a signature, and he quoted Helgren as instead saying that he would not drive because, "According to John at Tiny's Tires, the truck is not roadworthy because of the king pins. And you can go ahead and call Tiny's Tire." TR 1269.

Based on my review of the record, including my observations of the witnesses's demeanor, I find that Helgren's account of this conversation is more credible than Gonzales's version. First, I note that Helgren's raising of the lack of a mechanic's signature is entirely consistent with his behavior two weeks earlier on February 2 when it is conceded that he refused to drive T416 because the prior DVIR had not been signed by a mechanic. Second, it simply would make no sense for Helgren to assert that John at Tiny's Tire had proclaimed T416 to be unsafe because of its king pins. Helgren knew that this was not true and, more importantly, he had never previously told Gonzales that John or anyone at Tiny's Tire had said anything about the king pins. Rather, Helgren and Gonzales both testified that Helgren stated upon returning to the Puyallup terminal from Tiny's on February 11 that he personally had observed the "slop" in the king pins. Thus, if Gonzales is to be believed, Helgren came up to him one week later on February 18, made a knowingly false claim that John at Tiny's had deemed T416 to not be roadworthy because of the king pins, and then invited Gonzales to call Tiny's to expose his mendacity. Only an idiot or an employee trying to commit industrial suicide would act this recklessly, and Helgren certainly did not impress me as either. Third, although Helgren's OSHA statement was not offered, MCP's cross-examination revealed that he raised the claim to OSHA that MCP had violated the regulations dealing with DVIRs by not having a mechanic sign off a DVIR on which a driver had noted defective items, TR 284, and there was no suggestion through his extensive cross-examination that Helgren's statement to OSHA varied from his hearing testimony regarding the reasons he gave to Gonzales for his refusal to drive T416 on February 18. For these reasons, I find that Helgren told Gonzales that he would not drive T416 because there was still something wrong with it and because the prior DVIR had not been signed by a mechanic. I further find that Helgren did not tell Gonzales that he was refusing to drive T416 based on his false claim that John at Tiny's Tire had said that T416 was not roadworthy because of the king pins, and I find that the statement on Jensen's February 17 DVIR ("King Pins R/R per John @ Tiny's Tire Service") was based on Jensen's interpretation of what had transpired at Tiny's on February 11. Finally, I find that there is no material dispute regarding the remainder of the pertinent conversations and events on February 18, 2000, as described by Helgren, Gonzales and Thomas.

   E. MCP's Decision to Terminate Helgren's Employment

   Following Helgren's suspension, Evert testified that he reviewed the chronology of events leading up to February 18 including Curtis Martin's letter to Thomas, and he concluded that Helgren had provided false information to the company regarding what had happened at Tiny's Tire. TR 958-960. Evert also learned that the "B" service

performed by Gallup on February 18 after Helgren had refused to drive T416 did not find any problem with the truck which confirmed his belief that Helgren had provided false information to the company. TR 960-961. On the basis of this information and his conclusions as to what had occurred, Evert testified that he decided to terminate Helgren's employment, effective February 25, 2000, for two reasons (1) insubordination for refusing to drive on February 18 and (2) improperly attempting to disrupt MCP's operations by providing false and misleading information regarding the visit to Tiny's Tires and by then using that false information as an excuse for refusing to drive T416. TR 961-962. The termination decision and the reasons for the termination were communicated to Helgren by letter dated February 25, 2000. CX 6.

   F. Helgren's Damages and Efforts at Mitigation

   Helgren was not paid by MCP after February 18, 2000, though he testified that he did receive a check for accrued vacation time which he had not cashed at the time of the hearing. TR 130-132. In addition to his loss of pay, Helgren testified without contradiction that his dependent daughter required medical treatment during July 2000 and that he incurred medical expenses in the amount of $517.75 which would have been paid by his employer-sponsored health insurance had he still been employed at MCP. TR 139-140; CX 7. He also testified that he had retained an attorney in connection with his termination, TR 137-138, and his attorney moved for allowance of fees in the amount of $527.50. TR 352-352; CX 8.

   After his termination by MCP, Helgren sought alternative employment, and he began working for Alaska West Express ("AWE") on April 3, 2000 as a full-time truck driver with a pay rate of $15 an hour, more than he was earning at MCP. TR 23-24, 365, 371 (Helgren). Helgren worked at AWE until May 30, 2000 when he voluntarily quit immediately after receiving the Secretary's preliminary order for reinstatement so that he could return to employment with MCP. TR 24 (Helgren). Helgren did not seek further employment and remained unemployed through the date of the hearing. TR 385-386 (Helgren). He testified that he no reason to believe that he would not still be employed at AWE had he not voluntarily quit on May 30. TR 372. Helgren testified that he has made no effort to find employment since May 30, 2000, and he acknowledged that the business representative for Teamsters Local 313 gave him the names of employers looking for drivers and told him on several occasions that the union hall was empty and that he could immediately get a job driving a dump truck at a rate of $24.00 per hour. TR 387-389.

   Section 405 of the STAA prohibits the discharge of, or discipline or discrimination against, an employee in the commercial motor transportation industry because the employee either files a complaint or initiates or testifies in a proceeding related to a violation of a commercial motor vehicle safety regulation, standard, or order, or because the employee refuses

to operate a vehicle in certain circumstances. That section in pertinent part states,

(1) A person may not discharge an employee or discipline or discriminate against an employee regarding pay, terms, or privileges of employment because

* * * * *

(B) the employee refuses to operate a vehicle because
(i) the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety or health; or
(ii) the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle's unsafe condition.
(2) Under paragraph (1)(B)(ii) of this subsection, an employee's apprehension of serious injury is reasonable only if a reasonable individual in the circumstances then confronting the employee would conclude that the unsafe condition establishes a real danger of accident, injury, or serious impairment to health. To qualify for protection, the employee must have sought from the employer, and been unable to obtain, correction of the unsafe condition.

49 U.S.C. §31105(a). To prevail on their allegation that MCP violated the STAA, Helgren and the Prosecuting Party must prove: (1) that Helgren engaged in protected activity as defined in the STAA and that MCP was aware of the protected activity; (2) that MCP discharged, disciplined or discriminated against Helgren; and (3) that there is a causal connection between the Helgren's protected activity and the adverse employment action. BSP Trans., Inc. v. United States Dep't Labor, 160 F.3d 38, 45 (1st Cir. 1998); Clean Harbors Environmental. Services, Inc. v. Herman, 146 F.3d 12, 21 (1st Cir. 1998) (Clean Harbors); Yellow Freight Systems, Inc. v. Reich, 27 F.3d 1133, 1138 (6th Cir. 1994); Moon v. Transport Drivers, Inc., 836 F.2d 226, 228 (6th Cir. 1987).

   Under the STAA, the ultimate burden of proof generally remains on the complainant throughout the proceeding. Byrd v. Consolidated Motor Freight, 1997- STA-9 (ARB May 5, 1998), slip op. at 4 n.2. A respondent's burden is generally one of production only, to articulate a legitimate, non-discriminatory reason for the adverse action. To prevail, the complainant must establish, by a preponderance of the evidence, that the proffered reason is a pretext for discrimination, Clean Harbors, 146 F.3d at 21, and that he or she was disciplined or discharged because of engaging in protected activities. Byrd, slip op. at 4.

   A. Protected Activity and Employer Awareness

   The Prosecuting Party contends that Helgren's refusal to drive T416 on February 18, 2000 is protected by section 405(a)(1)(B)(ii) because he had a reasonable apprehension of serious injury due to the unsafe condition of the vehicle. It further contends that his refusal to drive is protected by section 405(a)(1)(B)(i) because operation of T416 on February 18, 2000 would have been in violation of a federal motor vehicle safety regulation.

       1. Reasonable Apprehension of Serious Injury

   In order to receive protection under this subsection (ii), an employee's apprehension of a serious injury due to an unsafe condition must be objectively reasonable based on the information available to him at the time of the work refusal and, despite seeking a correction of the condition, the employee must have been unable to obtain correction. Brinks, Inc. v. Herman, 148 F.3d 175, 180-81 (2nd Cir. 1998). See also Murray v. Air Ride, Inc., 1999-STA-34 (ARB December 29, 2000), slip op. at 5; Thom v. Yellow Freight System, Inc., Case No. 1993-STA-2 (Sec'y November 19, 1993), slip op. at 7. The existence of an actual safety defect need not be proven, and the fact that a subsequent inspection affirmatively shows that there was no mechanical defect does not remove the STAA's protection so long as the analysis of the situation encountered by a driver at the time of the refusal to drive compels the conclusion that the driver's perception of an unsafe condition was reasonable. Yellow Freight System v. Reich, 38 F.3d 76, 82-83 (2nd Cir. 1994); Jackson v. Protein Express, 1995-STA-38 (ARB January 9, 1997), slip op. at 2-3. Therefore, a careful examination of information available to Helgren on February 18, 2001 is in order.

   The record shows that Helgren was aware from his own experience as well as discussions with other drivers that T416 had a history during the months of January and February 2000 of shaking, vibration or shimmy, steering drift and occasional brake malfunction. He knew that MCP had taken vehicle to Valley Freightliner and Dirk's for inspection and had been told that there was no mechanical or safety defect, and he knew that T416 had been to Tiny's Tire for new tires. Additionally, Helgren's personal examination of T416's front end on February 11, 2000 raised a question in his mind as to whether any work had been recently done on the front end, and he knew from driving T416 on February 11 that the shimmy was still present despite MCP's repeated efforts, including the two new steer tires installed by Tiny's. Helgren also knew that Gonzales had unsuccessfully attempted to get Valley Freightliner to look at the vehicle again on February 11 and that Jensen had told him and reported on his DVIR for February 17 that the vehicle still continued to shake and that DVIRs from the beginning of February were missing from the DVIR book. Finally, he knew, or information was available to him, that T416 had not been returned to Valley Freightliner for further inspection as of February 18, that no mechanic or other individual had certified on the original of Jensen's February 17 DVIR that the cited defects had been corrected or that correction was not necessary, that no driver had reported brake problems after Gallup adjusted the brakes on February 8 and that the persistent shaking, vibration or shimmy had not caused him or any other driver to lose control of the vehicle. Under the circumstances in which he found himself on February 18, I conclude that Helgren reasonably believed that the shaking, vibration or shimmy problem in T416 had not been corrected as of February 18. I further conclude that Helgren reasonably questioned whether in fact all of the inspection and mechanical work reportedly done by Valley Freightliner and Dirk's had in fact been performed since his visual inspection of the truck's front end did not disclose any obvious signs of recent repair work and since Jensen's report of missing DVIRs gave rise to a reasonable inference that something untoward might be afoot regarding T416's maintenance and repair history. However, I also conclude that Helgren did not have an objectively reasonable apprehension of serious injury due to an unsafe condition. Although Helgren testified at the

hearing that he felt himself to be at personal risk whenever he drove T416 after January 17, 2000, TR 401, I find it significant that no driver including Helgren testified that they had problems controlling or safely operating T416 because of vibration, shaking, shimmy or steering drift. In contrast, Jensen and Helgren both described problems with the brakes (pulling out of the lane and not properly locking) which any reasonable driver would regard as a potential safety hazard, but the information available to Helgren on February 18 showed that Gallup had done an adjustment on February 8 and that no driver had subsequently reported any braking problem. Thus, what Helgren knew on February 18 was that T416 had the same problem with shaking, vibration or shimmy and steering drift which had not previously compromised safe operation. Moreover, there is no evidence that MCP had a past history of lax vehicle maintenance, ignoring driver complaints or pressuring drivers to operate defective vehicles. Indeed, the record, as discussed above, shows that MCP runs a comprehensive vehicle maintenance and safety program, that it had promptly addressed the defects reported by Jensen and Helgren when they had "red tagged" T416 in the past and that it was continuing to pursue correction of T416's vibration and steering drift problems. Under the circumstances present on February 18, 2000, and noting that no other driver testified that they believed T416 to be unsafe, I conclude that Helgren did not have a reasonable apprehension of serious injury due to an unsafe condition and that his refusal to drive was not protected by section 405(a)(1)(B)(ii). In making this determination, I considered the evidence of record which reveals that Helgren and Gonzales had an acrimonious relationship and that there was a strained labor-management climate at the Puyallup terminal during the relevant time frame. However, as there is no evidence that these conflicts were related to vehicle safety, I find that the labor-management relationship would not have contributed to a reasonable apprehension of serious injury in connection with the operation of T416.

       2. Violation of a Federal Regulation

   The Prosecuting Party also alleges that Helgren's refusal to drive is protected because MCP violated the Department of Transportation's Federal Motor Carrier Safety Regulations ("FMCSRs") by failing to certify on Jensen's February 17, 2000 DVIR that the defects had been repaired or that repair was not necessary for safe operation In this regard, the FMCSRs mandate that motor carriers require their drivers to complete DVIRs:

(a) Report required. Every motor carrier shall require its drivers to report, and every driver shall prepare a report in writing at the completion of each day's work on each vehicle operated and the report shall cover at least the following parts and accessories:

--Service brakes including trailer brake connections

--Parking (hand) brake

--Steering mechanism

--Lighting devices and reflectors

--Tires

--Horn

--Windshield wipers

--Rear vision mirrors

--Coupling devices

--Wheels and rims

--Emergency equipment

(b) Report content. The report shall identify the vehicle and list any defect or deficiency discovered by or reported to the driver which would affect the safety of operation of the vehicle or result in its mechanical breakdown. If no defect or deficiency is discovered by or reported to the driver, the report shall so indicate. In all instances, the driver shall sign the report. On two-driver operations, only one driver needs to sign the driver vehicle inspection report, provided both drivers agree as to the defects or deficiencies identified. If a driver operates more than one vehicle during the day, a report shall be prepared for each vehicle operated.

49 C.F.R. §396.11(a)-(b). The FMCSRs also impose specific requirements on motor carriers with respect to the actions required when a defect or deficiency is listed on a DVIR:

(c) Corrective action. Prior to requiring or permitting a driver to operate a vehicle, every motor carrier or its agent shall repair any defect or deficiency listed on the driver vehicle inspection report which would be likely to affect the safety of operation of the vehicle. (1) Every motor carrier or its agent shall certify on the original driver vehicle inspection report which lists any defect or deficiency that the defect or deficiency has been repaired or that repair is unnecessary before the vehicle is operated again. (2) Every motor carrier shall maintain the original driver vehicle inspection report, the certification of repairs, and the certification of the driver's review for three months from the date the written report was prepared.

49 C.F.R. §396.11(c) (underlining supplied). This certification requirement was the subject of a considerable amount of testimony at the hearing. Helgren steadfastly maintained that a mechanic's signature on the DVIR is required by section 396.(c)(1), and MCP's expert witness, Larry Blood, insisted that a written certification need not appear on the DVIR and that the certification requirement can be satisfied in a variety of ways including MCP's practice of attaching repair records to the DVIR and posting such records on a clipboard. Both views depart from the unambiguous language of section 396.11(c), and they are rejected by the Federal Motor Carrier Safety Administration's Regulatory Guidance for the Federal Motor Carrier Safety Regulations, 62 Fed. Reg. 16370 (April 4, 1997). Regarding the question of what constitutes the certification required by section 396.11(c), the Regulatory Guidance states,

A motor carrier or its agent must state, in writing, that certain defects or deficiencies have been corrected or that correction was unnecessary. The declaration must be immediately followed by the signature of the person making it.

62 Fed. Reg. 16427. And, the Regulatory Guidance makes it clear that the certification, with exceptions not relevant to the instant case, need not be made by a mechanic:

Section 396.11 does not establish minimum qualifications for motor carrier officials or agents who certify that defects or deficiencies on DVIRs are corrected. With the exception of individuals performing the periodic or annual inspection (§396.19), and motor carrier employees responsible for ensuring that brake-related inspection, repair, or maintenance tasks are performed correctly (§396.25), Part 396 of the FMCSRs does not establish minimum qualifications for maintenance personnel. Motor carriers, therefore, are not prohibited from having DVIRs certified by company officials or agents who do not have experience repairing or maintaining commercial motor vehicles.

62 Fed. Reg. 16428. Finally, the FMCSRs require that drivers take specific actions prior to driving a commercial motor vehicle:

Before driving a motor vehicle, the driver shall: (a) Be satisfied that the motor vehicle is in safe operating condition; (b) Review the last driver vehicle inspection report; and (c) Sign the report, only if defects or deficiencies were noted by the driver who prepared the report, to acknowledge that the driver has reviewed it and that there is a certification that the required repairs have been performed. The signature requirement does not apply to listed defects on a towed unit which is no longer part of the vehicle combination.

49 C.F.R. §396.13. I find that Helgren acted in compliance with section 396.13 on February 18, 2000 when he reviewed the prior DVIR which Jensen had completed on February 17 and noted that there was no certification, as required by section 396.11(c), that the defects or deficiencies cited by Jensen had either been repaired or that repair was not necessary before the vehicle was operated again. Helgren informed Gonzales that there was no mechanic's signature on the DVIR. Gonzales and Thomas responded by asserting that T416 had been checked out by multiple shops and that there was no mechanical or safety problem; however, neither they nor any other MCP official or agent placed the certification required by section 396.11(c) on the DVIR that the cited defects or deficiencies had been repaired or that repair was not necessary before Helgren was suspended for refusing to drive. The Regulatory Guidance anticipated precisely this type of scenario and provides the following interpretation regarding the carrier's and driver's respective responsibilities:

Question 1: If a DVIR does not indicate that certain defects have been repaired, and the motor carrier has not certified in writing that such repairs were considered unnecessary, may the driver refuse to operate the motor vehicle?

Guidance: The driver is prohibited from operating the motor vehicle if the motor carrier fails to make that certification. Operation of the vehicle by the driver would cause the driver and the motor carrier to be in violation of §396.11(c) and both would be subject to appropriate penalties. However, a driver may sign the certification of repairs as an agent of the motor carrier if he/she is satisfied that the repairs have been performed.

62 Fed. Reg. 16428. Since Helgren obviously was not satisfied on the morning of February

18 that repairs had been performed or were unnecessary and since he had not signed the certification, it was incumbent on MCP to execute the required certification before T416 was operated again. In my view, Helgren's mistaken belief that section 396.11(c) requires certification by a mechanic does not excuse MCP's failure to comply with the clear and unambiguous requirements of section 396.11(c). I also reject, as contrary to the public safety and record-keeping purposes underlying the FMCSRs, MCP's arguments and the suggestions of its expert, Larry Blood, that it was somehow relieved of its certification obligations because Gonzales and Thomas assured Helgren that T416 was safe to drive and because Jensen's report of defects and deficiencies was "redundant" and did not raise a significant safety concern. There is no serious argument reported defects and deficiencies in a truck's front axle and steering, items listed by Jensen on February 17, would affect safe operation as envisioned by section 396.11. I find and conclude that Jensen's report of these defects or deficiencies triggered MCP's certification obligations under section 396.11(c), even if the reports were redundant of earlier drivers' reports. MCP could have easily remedied any potential violation of section 396.11(c) if Gonzales or some other agent had completed the necessary certification on the original of the DVIR before ordering Helgren to drive T416 under threat of discipline. Instead, they drew a line in the sand and placed themselves on the wrong side of that line as far as the FMCSRs are concerned. Accordingly, I conclude that inasmuch as driving T416 on February 18, 2000 without the certification required by section 396.11(c) would have constituted an actual violation of a commercial motor vehicle safety regulation, Helgren's refusal to drive is protected by section 405(b)(i) of the STAA. Yellow Freight System, Inc. v. Martin, 983 F.2d 1195, 1197-99 (2nd Cir. 1992) (Yellow Freight) (refusal to operate a vehicle when carrier refused to check and rectify a discrepancy in vehicle's identification number recorded on the DVIR was protected by the STAA since driving under those circumstances would have violated section 396.11 even though it subsequently was discovered that the discrepancy was a mere clerical error). I further conclude that MCP was aware of Helgren's protected activity through its agents Gonzales, Thomas, Lewis and Evert.

   B. Adverse Employment Action

   There is no dispute that Helgren was suspended without pay on February 18, 2000 or that his employment relationship with MCP was terminated effective February 25, 2000. Therefore, the element that the Complainant be subjected to an adverse employment action is satisfied.

   C. Causal Connection

   There is also no dispute that Helgren suspended because he refused to drive T416 on February 18, 2000, and the evidence shows that his refusal to drive was one of the two reasons relied on by MCP in its decision to terminate his employment. Accordingly, I conclude that the Helgren and the Prosecuting Party have met their burden of proving a causal connection between Helgren's protected activity and the adverse employment actions.

   D. MCP's Asserted Legitimate, Nondiscriminatory Reasons for Termination

   Where, as in this case, there is direct evidence that an adverse action is motivated, at least in part, by protected activity, the respondent may avoid liability only by establishing that it would have taken the adverse action in the absence of the protected activity. Caimano v. Brink's, Inc., 1995-STA-4, slip op. at 23-24 (Sec'y January 26, 1996); Assistant Secretary of labor and Kovas v. Morin Transport, Inc., 1992-STA-41 (Sec'y October 1, 1993), slip op. at 6. MCP has offered evidence in the form of the February 25, 2000 termination letter and Evert's testimony that it decided to terminate Helgren's employment because of his insubordinate refusal to drive T416 on February 18, 2000 and because he attempted to disrupt MCP's operations by making false statements regarding what had transpired at Tiny's Tire on February 11, 2000 and by using those false statements as an excuse for not driving. The insubordination can not form a legitimate basis for discipline since Helgren's refusal to drive was protected by the STAA. I also find that MCP's false statement charge does not withstand scrutiny. Gonzales's testimony convincingly establishes that Helgren truthfully related what had occurred at Tiny's Tire when he returned to the Puyallup terminal on February 11. TR 1254-1257. Significantly, Gonzales confirmed that Helgren did not claim that John or any other person at Tiny's had made any statement regarding the conditions of the king pins or T416. TR 1257. I have discredited Gonzales's testimony that Helgren never mentioned the lack of a certification on Jensen's February 17 DVIR when he refused to drive on February 18 and that he instead attempted to justify his refusal by claiming that John at Tiny's had opined that the king pins needed to be repaired or replaced, and I find that the "King pins R/R per John @ Tiny's Tire Service" statement that Jensen placed on the February 17 DVIR was a product of Jensen's conjecture as to what had occurred at Tiny's rather than the fruit of any misrepresentation by Helgren. On these facts, and since Gonzales knew that Helgren had not made false claims about what had transpired at Tiny's, I conclude that MCP's "disruption and false information" allegation is a pretext for discrimination. Accordingly, I conclude that MCP has not established that it would have terminated Helgren's employment in the absence of his protected activity.

   E. Conclusion

   Based on the foregoing findings and conclusions, I conclude that Helgren and the Prosecuting Party have proved by a preponderance of the evidence that MCP violated section 405(a) of the STAA by suspending Helgren without pay and terminating his employment because he engaged in refusal to drive activity protected by the STAA.

   F. Remedy

   Helgren, as a successful litigant under the STAA, is entitled to an order requiring MCP to take affirmative action to abate the violation, reinstate him to his former position with the same pay, terms and privileges of employment, and pay him compensatory damages, including back pay with interest calculated in accordance with 26 U.S.C. §6621 (1988). 49 U.S.C. §31105(b)(3)(A); Polgar v. Florida Stage Lines 1994-STA-46 (Sec'y April 18, 1995), slip op. at 3, aff'd sub nom Florida Stage Lines v. Reich, 100 F.3d 969 (11th Cir. 1996).

   As relief, the Assistant Secretary seeks an order requiring MCP to: (1) reinstate Helgren to his former position with the same pay and terms and privileges of employment and to deem Helgren's employment continuous for the purposes of determining seniority, longevity of employment, retirement, vacation accrual, and other employment benefits; (2) pay Helgren back wages of $14.50 per hour, in the amount of $3,480.00 from February 18, 2000 through April 3, 2000 when he obtained comparable employment, in the amount of $6,380.00 from May 29, 2000 through August 14, 2000 while Helgren held himself ready to return to work pursuant to the preliminary reinstatement order issued by the Assistant Secretary, and such further amounts from August 22, 2000 until reinstated in his former employment; (3) pay Helgren compensatory damages in the amount of $582.75 representing medical costs incurred in July 2000 which would have otherwise been paid through MCP's group medical plan; (4) expunge all material and references to Helgren's discharge (5) provide neutral job references which will include Helgren's dates of employment, which will have been deemed continuous, job title, and final wage rate, to all potential employers; (6) take affirmative action to abate the violation by immediately discontinuing harassment and intimidation and all acts of reprisal against Helgren or anyone who acknowledges his or her support of Helgren for instituting or causing to be instituted any proceeding under or related to 49 U.S.C. §31105; and (7) posting a notice in conspicuous places in or about its facility, including all places where notices for employees are customarily posted, and maintain for a period of at least sixty (60) consecutive days from the date of posting, a Notice to Employees confirming the foregoing abatement to be signed by a responsible official of the Respondent and the date of the actual posting to be shown thereon.

   MCP, on the other hand, contends that Helgren is not entitled to back pay for the period of time after he voluntarily left his employment with AWE on May 30, 2000. MCP additionally contends that Helgren had no real interest in being reinstated as shown by a settlement offer which he sent to MCP's attorney on June 5, 2000.

   An award of back pay is mandatory once it is determined that an employer has violated the STAA. Hufstetler v. Roadway Express, Inc., 1985-STA-8 (Sec'y August 21, 1986), slip op. at 50, aff'd sub nom., Roadway Express, Inc. v. Brock, 830 F.2d 179 (11th Cir. 1987). However, it is well-established under the STAA that a wrongfully discharged employee has a responsibility to mitigate damages by diligently seeking substantially equivalent employment and by acting reasonably to maintain such employment, and an employee's failure to mitigate will reduce the employer's back pay liability by no less an amount than that which the employee would have made had he diligently sought and remained in interim employment throughout the back pay period. Cook v. Guardian Lubricants, Inc., 1995-STA-43 (ARB May 30, 1997), slip op. at 6. A respondent's noncompliance with a temporary reinstatement order does not suspend the complainant's duty to mitigate damages; however, once

   5. provide the Complainant, Kenneth Helgren, neutral job references which will include the Complainant's dates of employment, which will have been deemed continuous, job title, and final wage rate, to all potential employers;

   6. post copies of the Notice of Findings (Appendix A), attached to this Recommended Decision and Order, for 60 consecutive days in conspicuous places in and about its Puyallup, Washington facility so that drivers may read it; and

   7. pay to the Complainant's attorneys, Greene & Lloyd, attorney's fees and costs in the amount of $527.50.

SO ORDERED.

       Daniel F. Sutton
       Administrative Law Judge

Camden, New Jersey

NOTICE: This Recommended Decision and Order and the administrative file will be forwarded for review to the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Ave., Washington D.C. 20210. See 29 C.F.R. §1978.109 (a); 61 Fed. Reg. 19978 and 19982 (1996).