1. Whether the Complainant engaged in activity which is protected within the meaning of the Act; and

2. Whether the Complainant's discharge was due to his engaging in protected activity.

    In order for the Complainant to recover under the Act, he must establish that he was discharged for one of the two classes of activities protected under the Act: 1) that he filed a complaint or instituted a proceeding relating to a motor vehicle

safety violation; or 2) he refused to operate a vehicle in violation of a Federal safety regulation or because he reasonably feared injury to himself or the public due to the unsafe condition of the equipment. There is no evidence in this case that the Complainant ever reported an alleged safety violation to a State or Federal agency. The Complainant's alleged protected activity lies solely in his refusal to operate vehicles which were in a condition which violated a motor vehicle safety regulation(s) or which he reasonably believed were unsafe.

    The Complainant was in the employment of the Respondent for approximately nine months before his termination. He was assigned Unit #17 in September, 1985. He had some problems with the truck, all of which were repaired, but on December 5, 1985, while on a trip, he had electrical problems to the extent that the vehicle had to be taken to a dealer in Monroe, Louisiana, for repair. The unit was repaired sufficiently for it to be driven back to the Respondent's location in Muskogee, Oklahoma, and on December 7, the Complainant ceturned the vehicle there for completion of repairs. Because his truck was down and because he was assigned another trip, the Complainant went in the late hours of December 8, 1985, or early morning hours of December 9, to the Respondent's place of business to chose another truck, but refused to accept the ones available and waited until the following day, December 9, for his truck (Unit #17) to be repaired before making his trip. Upon reaching his destination, Mr. Davis called in for instructions and was told not to pick up a return load, but rather come back. He returned to the office on December 10, 1985, and was terminated. Mr. Davis testified to a number of incidents during his employment in which he believed he was dealt with unfairly and/or which he believed led to his discharge. However, as previously discussed, since only specified activity is protected under this Act, only the Complainant's refusal to operate four or five motor vehicles on the morning of December 9, 1985, is at issue here, since this apparently, at least in part, occasioned his termination on December 10, 1985, and any other reasons for his termination are not protected by this particular Act.

    There is a dispute as to how many trucks the Complainant was offered and refused. Mr. Richardson, the shop foreman, testified that the Complainant was offered five trucks, (Tr. 115), yet Mr. Richardson was not present at the time the incident occurred, and the security guard who was purportedly present did not testify,

nor were any records offered to contradict the Complainant's testimony that he was offered only four trucks on that morning. I found the Complainant to be a credible witness and in the absence of something more than contradictory testimonial evidence from a person present after the fact, I accept Mr. Davis' testimony that he was offered only four trucks to drive on the morning of December 8, 1985.

    The Complainant testified that he was first offered Unit #55, which he refused because it had no defroster and since the temperature was below freezing and it was foggy that morning, he considered the vehicle unsafe to drive. (Tr. 46). Bill Richardson, the Respondent's shop foremant also testified that it was foggy that morning, though he thought the temperature was above freezing. (Tr. 118). Mr. Richardson further testified that the defroster worked when he checked it later that morning, although, being a GMC truck he agreed it did not have the force of the defroster in the International truck (Unit 17) that Mr. Davis ordinarily drove. (Tr. 118). Mr. Richardson also testified that the defroster accomplished the purpose for which it was intended, and it had passed the shop's safety inspection. (Tr. 118). I found Mr. Richardson to be a credible witness, and I find his explanation of why the Complainant might have believed the defroster to be inoperable to be plausible. Consequently, I conclude that the Complainant was mistaken in his belief that the defroster was inoperable, and I find his belief that the truck was unsafe to be unceasonable. Had the Complainant been more patient and thorough in his investigation of the truck, I believe that he might well have found the defroster to be working sufficiently to clear the windshield. For these reasons, I conclude that Unit #55 was not unsafe, and, therefore, the Complainant's apprehension of injury from driving that truck was not reasonable.

    Mr. Davis testified that he next tried Unit #84 and the heater on the side mirrors was not working and the right window would not release. (Tr. 47). The Complainant explained that since the right window could not be rolled down, he could not wipe the fog off the right side mirror and, therefore, he was not able to see adequately. (Tr. 48, 79-80). Mr. Richardson testified that he did not remember checking whether the right window would roll down, but that not having defrosters on the mirrors was not a requirement of the Department of Transportation and older trucks do not have them. (Tr. 120-121). Although Mr. Richardson stated

that the side window defrosters are a "convenience" (Tr. 120), there is no testimony in the record to contradict the Complainant's testimony that his vision would have been impaired and that he would not have been able to see adequately. Whether an alleged condition is a Department of Transportation Safety violation, although relevant, is not binding in this case on the issue of whether the condition would cause a driver to reasonably refuse to drive the vehicle; and although the evidence is by no means overwhelming, given the weather conditions and the Complainant's uncontradicted testimony that his vision would have been impaired, I find that the fact that the side mirrors were not heated and the right window would not release were unsafe conditions of such a nature that the Complainant's refusal to drive Unit #84 was reasonable and protected within the meaning of the Act.

    The Complainant was next offered Unit #77 which he testified that he also refused because it did not have turn signals and four-way flashers. (Tr. 47). Bill Richardson confirmed this statement and further testified that these conditions were indeed safety hazards. (Tr. 122). Although he stated that the problem could have been corrected easily by the Complainant unscrewing a latch and plugging in the flasher, there is no evidence that the Complainant knew how to do this or that he should have known how to correct the flashers; to the contrary, the testimony indicated that the Respondent did not require its drivers to have any mechanical ability whatsoever. (Tr. 106, 108). Based upon the testimony that the flashers were not working and that such a condition was a safety hazard, I am persuaded that the Complainant refused to drive #77 because of a reasonable fear of danger to himself and the public.

    Lastly, Mr. Davis was offered Unit #76, and he testified that the key would not unlock the door, probably due to the weather being cold, so he never got into the vehicle. (Tr. 48). Bill Richardson testified, however, he unlocked the door with the key when he checked it later Monday morning. (Tr. 122). Even assuming that the Complainant could not get into the truck, such a condition is not a safety hazard. The Act at issue in this case protects an individuals refusal to drive a vehicle which he reasonably believes to be unsafe, not his refusal to drive a vehicle due to alleged inconvenience or impossibility. In other words, were the Complainant fired solely for "refusing" to drive Unit #76 because he could not gain entry, his refusal would not

constitute protected activity and his discharge, however, unfair would not be unlawful under this Act. Moreover, I am not entirely persuaded that the Complainant would not have gained entry to the truck had he been even slightly resourceful. Mr. Davis did not testify to trying to heat the key or the lock or looking for a de-icing solution or doing anything beyond simply trying the key in the lock. This gives me cause to question the Complainant's willingness to drive any truck other than his own.

    Mr. Hill, the terminal manager and vice-president of the Respondent company, testified that the Complainant was discharged, in part, for his disobeyance of the company's order on the morning of December 9, when he refused to deliver a load at the originally scheduled time (Tr. 181), and I find this testimony to be supported by the facts of this case. Although the Complainant's disobeyance of the company order included protected activity, i.e., refusal to drive Units #84 and #77, his disobeyance of the company's order also included unprotected activity by his unreasonable refusal to drive the two remaining "safe" trucks. In short, I find that Mr. Davis was not discharged simply for his refusal to drive Units #84 and #77, but rather, his refusal to drive all four trucks he was offered. Mr. Davis could have avoided disobeying the company's order by accepting the two remaining trucks which were safe to drive. Because the incident which precipitated the Complainant's discharge could have occurred in the absence of the protected activity, I do not find his discharge to be a violation of the Act. The Act protects a driver's refusal due to a reasonable apprehension, not refusal due to a driver's extraordinary cautiousness.

    The Complainant testified to a number of other incidents in which he believed he was dealt with unfairly and/or which he believed led to his ultimate discharge. He offered testimony that he had driven a truck in which the throttle spring was broken, a truck which had only overhead lights and a truck in which the air cushion was deflated and he was forced to drive standing up. (Tr. 23, 31, 35). None of these incidents, however, resulted in the Complainant's refusal to operate these vehicles; rather, despite any unpleasantries which passed between the Complainant and the Respondent regarding these events, the Complainant proceeded to drive the trucks on these occasions, and the conditions complained of were all ultimately repaired. In summation, the Complainant expressed the sentiment that he was

not well treated by the Respondent on several occasions and that his discharge was unfair because he had not been confronted with the alleged problems nor been given the opportunity to defend his actions and/or correct them. (Tr. 240-245).

    I appreciate the Complainant's position and personally think the circumstances surrounding the Complainant's discharge are unfortunate since the Complainant demonstrated that he would have been willing to remedy deficiencies regarding his work had the Respondent followed the discipline/discharge procedures outlined in its own employment manual (Complt. Ex. 2), but regardless how desirable it might have been for the Employer to follow its own procedures, its failure to do so is not addressed by the law upon which I must base my decision in this instance. The Act in question proscribes a limited number of protected activities and is not a remedy for all manner of unfairness which may or may not occur in the workplace.

    Because the Complainant has not demonstrated that his discharge was due to his reasonable refusal to drive an unsafe vehicle(s), or due to other activity which is specifically protected under the Act, he is not entitled to monetary damages.

    It is Ordered that the complaint of Leon Davis is hereby dismissed.

       C. RICHARD AVERY
       Administrative Law Judge