W. Terrence Kilroy, Esq.
Before: JOHN C. HOLMES Administrative Law Judge
DECISION AND ORDER - DENYING CLAIM
The above matter was initiated by Claimant who complained that he had
been discriminated against in violation of Section 405 of the Surface Transportation Assistance
Act of 1982, 49 U.S.C. 2305 (Act) and the applicable regulations. A hearing was held in Kansas
City, Missouri on December 3, 1985 at which both parties were given an opportunity to fully
litigate the case. My Decision and Order is based upon the entire record.
Background and History
49 CFR §2305(b) states in pertinent part:
"No person shall discharge, discipline, or in any manner
discriminate against an 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 or 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 the unsafe condition of such
equipment. 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."
Melvin E. Bates, on December 4, 1984 filed a complaint with the
Secretary of Labor alleging that he was fired by his employer Kasbar, Inc. for refusing to drive a
motor vehicle that was unsafe to operate in violation of the Act.
On March 28, 1985, the Regional Administrator U.S. Department
of Labor, issued an Administrative finding, based on their investigation, that the complaint was
without merit. Claimant objected to the findings and requested a hearing.
Findings of Facts and Conclusion of Law
There is no dispute and I find that Employer, Kasbar, Inc. is engaged in
interstate trucking, primarily contracting to haul mail for the U.S. Postal Service, and is covered
under the Act. Claimant, Melvin Bates, a driver, for Kasbar, in the early morning hours of
October 31, 1984, prior to starting a run to Indianapolis, Indiana, returned the truck to the
terminal in Kansas City, Kansas alleging an unsafe working vehicle, including lights weren't
working, steering unsafe, the clutch was slipping and the seat belts had been removed; he filed an
.Equipment Condition Report stating same. (Tr.-4,44, C#1). The serviceman (or mechanic) then
on duty, Timothy Wade Huggins, first told Claimant he would attempt to repair the vehicle
which he unsuccessfully tried to do (Tr.71). Mr. Huggins, thereupon, at approximately 3:00 -
3:30 a.m. telephoned the dispatcher, Rocky Elkins. A conversation ensued between the two with
Huggins relaying information to Claimant that had conflicting versions. Claimarnt alleges that
as a result of the conversations he was told to turn in his Postal I.D. equivalent to being fired.
(Tr.-48) He denies that he was told he could drive truck No. 50. (Tr.17, 72-79, 140). Employer,
on the other hand, alleges that Mr. Huggins informed Claimant that after failing to repair the first
vehicle, No. 74, Huggins, after conversing with Mr. Elkins, informed Claimant he could take No.
50 on the run, and that Claimant instead walked out (Tr.-73). Employer introduced evidence
demonstrating that truck No. 50 was dispatched at approximately 4:15 a.m. that morning, driven
by Mr. Charles Webb, and that No. 74 was not in service from October 31 - November 5, 1984
(R#4,5,6, Tr.-125).
It was, also, uncontradicted that Claimant was offered an opportunity to
be rehired on December 14 or 15, 1984, that he was to report to work on Monday, December 17,
1984. Mr. Bates called on December 17, 1984 and declined the offer of reinstatement for reasons
unrelated to this matter.
It is not crucial to my determination as to whether Claimant or Employer's
version of the circumstances under which Claimant left employment conforms to the actual facts.
Employer acknowledges that Truck No. 74, which Claimant was originally intended to drive, had
safety violations which would make it inadvisable to proceed. However, it is undisputed that
Employer at no time refused to correct the unsafe condition. Employer attempted on the spot to
correct the safety conditions of Truck No. 74. Claimant never alleged that Employer required him
to drive Truck No. 74 the morning of October 31, 1984 once the conditions were pointed out.2 Therefore, even were the best case made for
Claimant, no action would here lie, since the crucial-element that Employer does not correct an
unsafe condition is missing.
Moreover, the evidence on balance supports Employer's contentions. It
seems clear that Mr. Webb did drive Truck No. 50 the morning of October 31, 1984. That this
matter was accomplished approximately 1 hour after Claimant walked out of the terminal indicates
company policy and the individuals involved were aware of safety problems and how to properly
deal with them. This objective evidence would support Mr. Huggins testimony that he offered Truck
No. 50 to Mr. Bates prior to his leaving the terminal. Moreover, while the issue is not crucial, Mr.
Bates should have known that ultimate authority, in case of doubt, to send Claimant did not lie with
Mr. Huggins nor with Mr. Elkins, the dispatcher.
Further, even assuming arguendo , there were any coloration of
dismissal for bringing forward safety violations (which I do not find), Kasbar offered to rehire
Claimant with no strings attached. Any remedy, therefore, would be inappropriate since claimant's
failure to be rehired was on his own volition. Rather, I find this offer by Employer and the
circumstances surrounding it demonstrates that Employer never intended any violation in the first
place.3 Since Mr.Elkins and Mr. Huggins did
not have authority to terminate Claimant, the Employer's first authoratative act was to attempt to
reinstate him. Prior thereto, management with responsibility to act had no indication that Claimant
had done other than quit. In circumstances such as here where quick or instantaneous action is taken
between employees resulting in a question of a discriminatory action as opposed to a long term
pattern and practice of discrimination the subsequent action of officials of Employer having author
ity to act takes an added significance in determining the intent of an Employer. Thus if an Employer
by subsequent action of responsible officials ratifies a discriminatory act of unauthorized employees
taken "in the heat of passion", a discriminatory -intent may be found. However, where,
at the first available opportunity, an Employer rescinds, overrules or negates the actions of an
unauthorized employee which may have been discriminatory, an intent of discrimination may
usually not be imputed to Employer.
For the reasons stated, Claimant has failed to demonstrate that
Employer violated the Act.
ORDER
Since Employer did not violate the Act, Claimant's claim is dismissed.
JOHN C. HOLMES
Date Issued: MAR 7 1986
Washington, D.C.
JCH/mlc
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