Bauman v. U.S. Cargo and Courier Service, 1999- STA-45 (ALJ Nov. 16, 2000)

U.S. Department of Labor

Office of Administrative Law Judges Seven Parkway Center - Room 290 Pittsburgh, PA 15220 (412) 644-5754 (412) 644-5005 (FAX)

DATE: November 16, 2000

CASE NO.: 1999-STA-45

In the Matter of:

WILLIAM BAUMAN
    Complainant

    v.

U.S. CARGO AND COURIER SERVICE
    Respondent

   The above-captioned matter arose upon a complaint filed by William Bauman against the above- named Respondent under the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. § 31101, et seq., and the regulations promulgated thereunder at 29 C.F.R., Part 1978, et seq. A formal hearing was held on October 4, 2000 in Cleveland, Ohio.

   At the hearing counsel for the respondent moved that the claim be dismissed because the complainant failed to establish that the STAA applies to this action. (Hearing Record (HR) 84) Respondent's counsel argues that the respondent does not engage in activity that involves commercial motor vehicles within the meaning of the STAA.

   The pertinent statute reads:

A person may not discharge an employee, or discipline or discriminate against an employee regarding pay, terms, or privileges of employment, because the employee, or another person at the employee's request, has filed a complaint or begun a proceeding related to a violation of a commercial motor vehicle safety regulation, standard, or order, or has testified or will testify in such a proceeding

49 U.S.C. § 31105(a)(1)(A). As such, an essential part of the coverage of the STAA involves the activity of "commercial motor vehicles." The term "commercial motor vehicle" has been defined as "any self-propelled ... motor vehicle used on the highway in commerce principally to transport passengers or cargo" with a gross weight rating of ten thousand or more pounds. 44 U.S.C. app. § 2301(1).

   At the hearing the respondent called as a witness the Vice-President of Risk Management and Human Resources for U.S. Cargo and Courier Service, Bobbie May Gross, who testified that the trucks driven by the complainant in the course of his employment did not exceed ten thousand pounds. (HR 57). Ms. Gross' testimony is supported by the State of Ohio Bureau of Motor Vehicles registrations for the fleet of vehicles owned by the respondent. (Respondent's Exhibit V). None of the vehicles registered to the respondent exceed ten thousand pounds. This evidence was not contradicted by the complainant.

   Therefore, this court lacks jurisdiction to hear the complainant's allegations of discrimination under the STAA. While the complainant presented an articulate and well- reasoned argument, such allegations are not properly before this court.

   IT IS ORDERED the respondent's motion to dismiss is GRANTED.

      GERALD M. TIERNEY
      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, DC 20210. See 29 C.F.R. § 1978.109(a); 61 Fed. Reg. 19978 (1996).