DATE: July 7, 1995
CASE NUMBERS: 95-STA-14
95-STA-15
In the Matter of:
ASSISTANT SECRETARY OF LABOR
FOR OCCUPATIONAL SAFETY & HEALTH,
Prosecuting Party,
GUY V. MULANAX,
Complainant,
and
DANIEL ANDERSEN,
Complainant,
vs.
RED LABEL EXPRESS,
Respondent.
Appearances:
Jay A. Williamson, Esquire
U.S. Department of Labor
Office of the Solicitor
1111 Third Avenue, Suite 945
Seattle, Washington 98101
For the Prosecuting Party
Harvey Richman, Esquire
Law Offices of Harvey Richman
111 N. 2nd Street, Suite 200
Coeur d'Alene, Idaho 23874
For the Respondent
Before: Paul A. Mapes
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This proceeding arises under Section 405 of the Surface
Transportation Assistance Act, 49 U.S.C. §31105 (hereinafter
referred to as "the Act" or "the STAA").[1] The Complainants,
Guy
[PAGE 2]
V. Mulanax (hereinafter "Mulanax") and Daniel W. Andersen
(hereinafter "Andersen"), both allege that they were fired from
their jobs at Red Label Express (hereinafter "Red Label") on
September 9, 1994, in retaliation for activities that are within
the scope of the Act's protection. Their cases were
consolidated for hearing with the consent of all parties, and a
formal hearing was held in Spokane, Washington, on March 13-14,
1995. At the hearing, testimony was received from 10 witnesses
and the following exhibits were admitted into evidence:
Prosecuting Party's Exhibits (PX) 1-5 and 7-10; Respondent's
Exhibits (RX) 8, 10-12, 24, 31-33, 39 and 42. The Prosecuting
Party and the Respondent have both agreed that the proceedings in
this case should not be considered terminated for the purposes of
complying with the 30-day decisional deadline until the final
post-hearing reply brief is filed.[2] Tr. at 596.
BACKGROUND
Complainant Andersen was born on December 11, 1971, and has
an eleventh grade education. Tr. at 127, RX 24. Complainant
Mulanax was born on March 12, 1974, and has completed one
semester of community college. Tr. at 177, 234. The
Complainants both live in Priest River, Idaho, and are longtime
friends. Tr. at 27, 287.
Respondent Red Label is a family-owned, interstate motor
carrier which was founded by its president, John Walker, in 1980.
Tr. at 511. Red Label employs 51 drivers and has 48 trucks. Tr.
at 511. During all times relevant to the violations alleged
herein, John Walker's son, Jimmy Walker, was the Operations
Manager for Red Label, John Walker's daughter, Debbie Walker
Salisbury, was Red Label's bookkeeper, and John Walker's son-in-
law, Ron Salisbury, was a mechanic, "truck boss," and backup
driver. Tr. at 84, 401, 419, 519. Until September 8, 1994, Red
Label also employed a close friend of the Complainants, Shane
Steele, as a data entry clerk and part-time dispatcher. Tr. at
287-88, 298, 340.
A. Summary of Evidence Concerning Andersen
Complainant Andersen began working as a driver for Red Label
during the last part of June or the first part of July, 1994, at
a salary of ,000 per month. Tr. at 27-28. Andersen's job as
a driver involved delivering freight along a 70-mile route from
Post Falls to Mullen, Idaho. Tr. at 28-29. For the majority of
the time that he worked at Red Label, Andersen drove Red Label's
Truck Number 84 (hereinafter "Truck 84"). Tr. at 29.
[PAGE 3]
Shortly after beginning his employment at Red Label,
Andersen began making numerous internal reports, both written and
verbal, regarding mechanical problems with Truck 84. The written
reports, which were contained in daily truck inspection forms,
pertained to alleged problems with the truck's horn, brakes,
headlights, outside marker lights, interior dome light, fuel
gauge, exhaust system, tires, and cargo box.[3] Tr. at 32-44,
137, 165, RX 33. The oral reports, which were less frequent,
were generally made to Ron Salisbury or John Walker, but were
also addressed to other Red Label employees. Tr. at 44, 53-54,
308-09, 430-31, 515.
Sometime in July of 1994, Andersen was driving Red Label
Truck Number 21 when he noticed that one of the inside dual tires
was flat. Tr. at 44. While Andersen waited for the tire to be
changed at Les Schwab's, a local tire dealer, he casually began
examining the truck and noticed that the mountings for the
truck's rear leaf springs were defective. Tr. at 44-45.
Andersen pointed this out to the mechanic fixing the tire, and,
according to Andersen, the mechanic called John Walker to inform
him that he wanted the truck towed off the lot because of its
dangerous condition.[4] Tr. at 47-49. A short while later,
Andersen testified, he also called Walker and told him that he
did not want to drive the truck because he did not feel that it
was safe. Nonetheless, according to Andersen, Walker told him to
drive carefully but finish his deliveries. Tr. at 49-50. When
Andersen finished the route, he returned to Red Label and
complained to John Walker about the condition of the truck.
Although Andersen concedes that he was upset and raised his
voice, he asserts that he did not yell, scream or curse during
the conversation. Tr. at 51.
On another occasion in July, Andersen testified, he was
driving Truck 84 on his usual route when his eyes started burning
because of exhaust leaking into the cab.[5] Tr. at 54. He
therefore stopped at a gas station, called the State Police, and
asked that an officer pull him over to check the leak. Tr. at
54. According to Andersen, he was subsequently pulled over by
the State Police and given a warning ticket for various alleged
mechanical defects, including an alleged exhaust leak. Tr. at
55-57. In addition, Andersen testified, the ticket also directed
that the truck be placed out of service until it was inspected.
Tr. at 59. Andersen testified that he gave the ticket to Ron
Salisbury when he returned to the Red Label terminal that
afternoon.[6] Tr. at 59. According to Andersen, shortly after
he returned from lunch later that same day, he saw that Truck 84
had
[PAGE 4]
been loaded for its afternoon run. Tr. at 61. Andersen
testified that he then went back into the Red Label office and
asked John Walker why Truck 84 was going out again when the
ticket he just received stated that it should be out of service
until inspected.[7] Tr. at 64. Andersen further testified that
although he raised his voice during the conversation, he did not
yell, scream, or curse. Tr. at 64. According to John Walker,
however, Andersen came into his office "hollering," even though
Walker was already involved in a meeting with two outside
consultants.[8] Tr. at 517.
According to Andersen, on September 7, 1994, he noticed that
the drag link on Truck 84 was so worn that the truck would wander
from side to side as it moved down the road. Tr. at 66-67.
Andersen made a written notation of the problem on a vehicle
inspection report and also told John Walker about the situation
over the truck's radio. According to Andersen, Walker told him
that there was nothing wrong with the steering. Tr. at 68.
Later that day, Andersen testified, he spoke to Ron Salisbury
about the steering problem and was told that a new part for the
steering had already been ordered. Tr. at 69. According to
Andersen, he then told Salisbury that he did not want to drive
Truck 84 until the steering was fixed. Tr. at 69. As well,
Andersen wrote a note stating that if he was told to drive Truck
84 before it was fixed, he would take it to the scales at the
Washington State port of entry and have it inspected. Tr. at 70.
Andersen addressed the note to John or Jimmy Walker and placed
it in the middle of John Walker's desk.[9] Tr. at 70.
When Andersen arrived to work on the morning of September 8,
1994, the freight that he was to deliver that day was loaded in
Truck 84. Tr. at 71. While Andersen was at the office picking
up his paperwork, he testified, he asked Ron Salisbury and Jimmy
Walker what would happen if the drag link fell apart and caused
an injury. According to Andersen, Salisbury and Walker informed
him that there was absolutely no way that the drag link would
fall apart. Tr. at 72. While on his route, Andersen stopped at
three different auto repair shops and had mechanics write up
"estimates" concerning the drag link.[10] Tr. at 73, PX 1-3.
When Andersen returned to the Red Label terminal after completing
his route, he wrote another note to John and Jimmy Walker. This
note stated: "I will not drive 84 again untill [sic] it is fixed.
I have statements attached which show it is not safe to drive."
Tr. at 80, 82, PX 4. Andersen placed this note, along with the
three "estimates," on top of the note that he had placed on John
Walker's desk the day before. Tr. at 83. John Walker has
acknowledged seeing both this second note and its
attachments.[11]
[PAGE 5]
Tr. at 557.
Sometime after Andersen left the note on John Walker's desk,
Tom Jones, another Red Label driver, took Truck 84 to the scales
and had it inspected. Tr. at 149. At the scales the Washington
Department of Transportation issued Jones a ticket because the
truck had excessive play in its drag link.[12] Tr. at 88, PX 5.
Although Andersen denied telling Jones to have Truck 84
inspected, he testified that he may have suggested to Jones that
such an inspection would be a good idea. Tr. at 149-150.
When Andersen reported for work on the morning of September
9, 1994, the freight that he was to deliver was again loaded in
Truck 84. Tr. at 84. Andersen drove the truck to the Red Label
office and asked Debbie Salisbury what would happen if the truck
crashed and injured someone. Tr. at 84. Andersen testified
that Salisbury would not answer his question, but told him that
the truck had to go out that day because there was no other truck
to replace it. Tr. at 84. Salisbury testified that when
Andersen told her that the truck was still having a problem, she
told him that a part was on order. Tr. at 498. In addition,
she testified, she told Andersen that she had "no idea" what to
do about any mechanical problem and that all she knew was that
"he had to deliver his freight." Id.
Thereafter, Andersen went to John Walker's office and looked
on his desk to see if the note and attached estimates were still
there. On top of his note, Andersen saw the ticket that Tom
Jones had received the day before. Tr. at 88. Andersen made a
copy of the ticket and drove Truck 84 along his usual route to
the scales. Tr. at 90. Andersen testified that when he arrived
at the scales, he gave the ticket and the three "estimates" to an
individual working there. Tr. at 91. Thereafter, according to
Andersen, the individual inspected the truck and told him that
the truck was not safe to drive.[13] Tr. at 91. Andersen then
called the Red Label office, spoke to Debbie Salisbury, and told
her the situation. According to Andersen, she told him "you did
exactly what you said you were going to do, didn't you?"[14] Tr.
at 92. On the directive of Salisbury, Andersen then walked back
to the terminal, picked up another truck, and drove it back out
to the scales. Tr. at 96. Shortly after Andersen returned to
the scales an officer from the Idaho State Patrol arrived,
inspected Truck 84, wrote out a ticket, and placed the truck out
of service. Tr. at 97, RX 38. Andersen then finished loading
the replacement truck and completed his route. Tr. at 102.
When Andersen returned to the Red Label terminal at
[PAGE 6]
approximately 3:00 to 3:30 p.m., he gave Ron Salisbury a copy of
the ticket from the Idaho State Patrol and asked Jimmy Walker if
he still had a job. Tr. at 100, 103. According to Andersen,
Walker told him that he did not know and that he would have to
talk to John Walker. Tr. at 103. Andersen subsequently saw
John Walker at the terminal giving a drag link part to a
mechanic, but did not attempt to speak to him at that time
because he wanted to talk to him at the office. Tr. at 103, 555-
56. Ultimately, however, Andersen left for home without speaking
to John Walker. Id.
Since Andersen was scheduled to drive early the following
morning, he called Red Label's office sometime between 8:00 and
10:00 p.m. on the evening of September 9 to ask if he was still
employed. Tr. at 104, 455. The call was answered by Seana
Peterson, Red Label's Accounts Receivable Manager, who then
called Ron Salisbury for advice. According to Andersen, Peterson
told him that Salisbury had said that he "didn't need to bother
coming back." Tr. at 104, 454. Andersen testified that he
believed that Salisbury had the power to hire and fire and that
he had therefore concluded that Salisbury's response meant that
his employment with Red Label was terminated as of September 9,
1994. Tr. at 154-545. Peterson, however, testified that
Salisbury only told her to tell Andersen "not to worry about it,
that [his] route was covered in the morning," and that Salisbury
said nothing about the job issue. Tr. at 456-57. Peterson also
testified that she told Andersen that if he "had a problem," he
would have to speak to John Walker. Id. According to Ron
Salisbury, he instructed Peterson to tell Andersen that he would
have to ask John Walker if he had been fired, but that he did not
need to bother showing up to work the next morning. Tr. at 444,
447. Salisbury testified that he made this statement because he
felt, based on the time of the call and the distance that
Andersen lived from the terminal, that Andersen would have
received only two hours of sleep before beginning his eight hour
shift. Tr. at 447.
According to John Walker, Andersen called him on Monday,
September 12, to ask if he still had a job. Tr. at 538-40. In
response, Walker testified, he told Andersen that he was fired
and that he would mail him a copy of a "Daily Incident Log,"
which would set forth the reasons for his termination.
Id. The Daily Incident Log that Walker later sent to
Andersen (RX 31) is a single sheet of paper which states as
follows:
7/21 Insubordination -- Disrespect.
Witnessed by 2 George S. May Rep.
[PAGE 7]
9/9/94 Continued Personality Conflicts
Fired because of Attitude
and disrespect for Co. --
Payroll advances Given and deducted --
Wrote up and Signed
John Walker
On November 15, 1994, John Walker was interviewed concerning
Andersen's termination by Russell C. Hart, an investigator
employed by the Occupational Safety and Health Administration
("OSHA"). Tr. at 345. According to Hart, Walker asserted that
he could not remember why he discharged Andersen, and then
indicated to Hart that the interview was over.[15] Tr. at 362-
63.
During the hearing, John Walker testified that he made the
decision to terminate Andersen after a meeting at his home on
September 10 where he, his son Jimmy, and some other Red Label
drivers discussed problems they were having with Andersen,
including Andersen's alleged attempts to persuade the other
drivers to walk off the job and Andersen's efforts to persuade
Tom Jones to take Truck 84 to the scales to have it
inspected.[16] Tr. at 534-36, 558. John Walker acknowledged
that during this meeting he learned for the first time that
Andersen had carried out his threat to have Truck 84 inspected.
Walker testified that when he decided to fire Andersen, he
considered the conflict that Andersen was creating at Red Label
and the disrespect that Andersen had previously shown to him.[17]
Tr. at 519, 541. However, he testified, the main reason for
firing Andersen was to prevent his son, Jimmy, from beating "the
crap" out of Andersen. Id., Tr. at 541, 558-59. In this
regard, Walker asserted that such an altercation appeared likely
because there was a "personality conflict" between his son and
Andersen. Tr. at 558-59. Walker initially testified that he did
not have a problem with Andersen taking Truck 84 to be
inspected,[18] but later acknowledged that it did have at least
some bearing on his decision to fire Andersen.[19] Tr. at 538,
542, 558. As well, Walker acknowledged that Andersen's actions
on the morning of September 9 created a shortage of one truck,
caused deliveries to be late, and cost Red Label $50 for towing.
Tr. at 538, 540.
After Andersen was terminated by Red Label, he began working
30 to 40 hours a week as a self-employed logger. Tr. at 114-15.
Andersen's gross earnings from this employment were $2,800.00.
However, according to Andersen, after expenses, including the
[PAGE 8]
cost of parts, repairs, gas, and oil for his chain saw,
maintenance for his trailer, and amounts paid to have a trucker
tow the logs, he netted only ,800.00. Tr. at 114-15, 132, 134,
167. After his opportunities for this type of work ended in
early January of 1995, Andersen applied for work at several
temporary services that specialize in industrial employment,
followed up a lead on a trucking job, and reviewed the classified
ads in local papers on a weekly basis. Tr. at 115-16, 578. As a
result of these efforts, on January 30, 1995, he was able to
obtain a temporary job at Sunshine Minting in Hayden Lake,
Idaho.[20] Tr. at 116, 130, 579. At the time of the hearing,
Andersen was working an average of 50 hours per week at that job
and earning an average gross weekly income of $230.00. Tr. at
27, 118, 130. As well, Andersen expected that on March 20,
1995, he would start a full time job at Sunshine Minting that
would pay $7.00 per hour. Tr. at 131. In order to appear at
the hearing, Andersen missed two days of work and, as a result,
lost an estimated $140 in wages. Tr. at 117-18.
The evidence also shows that on February 16, 1995, Red Label
sent the Solicitor a written offer to reinstate Andersen pending
a final decision in this case.[21] Tr. 172-73. During the
hearing, however, Andersen declined any offer of reinstatement on
the grounds that his present employment is more lucrative. Tr.
at 173.
B. Summary of Evidence Concerning Mulanax
Complainant Mulanax began working for Red Label on July 14,
1994, as a terminal worker earning $4.60 per hour. Tr. at 176-
77. In the middle of August, 1994, he was transferred to a
driving job and his wages increased to $5.00 per hour.
Id. Once he began working as a driver, Mulanax drove a
small blue van in the mornings and a larger vehicle known as a
Truck Number 80 (hereinafter "Truck 80") in the afternoons. Tr.
at 178-79. According to Mulanax, during the time that he was a
driver for Red Label, he made written reports concerning a
variety of problems with Truck 80, including a minor exhaust
leak, a missing carrier arm nut, a defect in a door, a cracked
windshield, and a missing fire extinguisher.[22] Tr. at 188-89.
In addition, Mulanax testified, on at least two occasions, he
made verbal reports to Ron Salisbury and others about a problem
with the truck's carrier arm.[23] Tr. at 189-92. This
testimony was partially corroborated by Ron Salisbury and Shane
Steele. Tr. at 406, 443 (testimony of Ron Salisbury), Tr. at 303
(testimony of Shane Steele).
[PAGE 9]
According to Mulanax, on the morning of September 9, 1994,
Debbie Salisbury told him that two people had quit and that he
would have to drive the south Coeur d'Alene route as well as his
usual route.[24] Tr. at 196. Mulanax testified that he then
decided to drive Truck 80 because the amount of cargo he would be
carrying would be too great for the blue van that he usually
drove in the mornings. Tr. at 196. However, he asserted, when
he went to Truck 80 the keys were not in the ignition. As a
result, he explained, he went to Cheryl Eby, the morning
dispatcher, and was told to look for the keys around the
office.[25] Tr. at 197-198. Eventually, Mulanax testified, he
found the keys on a table in a small room at the end of the Red
Label terminal. Tr. 198-99. According to Mulanax, there was
nothing in Truck 80 or attached to the keys which indicated that
Truck 80 had been taken out of service. Tr. at 200. As well, he
testified, no one at Red Label told him that he should not take
Truck 80 or that the absence of keys from a truck meant that it
was out of service.[26] Tr. at 199-203, 430.
According to Ron Salisbury, however, Truck 80 had in fact
been taken out of service by the time that Mulanax arrived at
work on September 9. In particular, Salisbury testified that on
the evening of September 8 he had discovered a problem with the
truck's ball joints and had therefore taken the truck out of
service by removing the keys from the ignition and attaching them
to a paper which indicated that the truck was not to be
driven.[27] Tr. at 406, 424, 443. Salisbury further testified
that, according to Red Label policy, if a key is not in a
vehicle's ignition or on the visor above the driver's seat, the
vehicle is out of service. Tr. at 408. Ron Salisbury's
assertion that Truck 80 was out of service on September 9 is
supported by the testimony of Cheryl Eby, Debbie Salisbury, and
John Walker. Tr. at 477 (testimony of Cheryl Eby), Tr. at 493-94
(testimony of Debbie Salisbury), Tr. at 512 (testimony of John
Walker). As well, the testimony of Cheryl Eby (Tr. at 477-79),
Debbie Salisbury (Tr. at 494-95), and John Walker (Tr. at 514) is
generally consistent with Ron Salisbury's testimony regarding Red
Label's policy on out-of-service vehicles. However, John Walker
did testify that although Ron Salisbury started a practice of
labelling the keys of trucks that are out of service, that policy
was not in force in September of 1994. Tr. at 514. Walker
further testified that Salisbury started this practice because he
found that "there was such a problem with guys grabbing the
keys." Id.
According to Mulanax, after leaving Red Label's terminal in
Truck 80 he noticed that the truck was shimmying and therefore
stopped at a nearby truck stop to have the truck inspected. Tr.
[PAGE 10]
at 203-04. At the truck stop, Mulanax testified, a mechanic
told him that the vehicle was "in critical shape" and that he
could lose control of it at any time. Tr. at 203-04. Mulanax
then drove to the scales where Andersen was having his truck
inspected. According to Mulanax, he had two reasons for going to
the scales: (1) to help Andersen reload his cargo, and (2) to
request an inspection. Tr. at 204-05.
When Mulanax arrived at the scales, he helped Andersen move
a few shipments from Truck 84 into the new truck, but shortly
thereafter asked an officer to inspect his truck. Tr. at 100,
205. The officer inspected the truck and, according to Mulanax,
found that the carrier arm was missing a bolt, that there was
excessive play in the steering wheel, and that there was no fire
extinguisher or warning setups. Tr. at 208. As a consequence
of these alleged violations, the officer issued a citation and
"red tagged" the truck.[28] Tr. at 206.
After the officer "red tagged" Truck 80, Mulanax called
Cheryl Eby on the radio inside the truck, explained the situation
to her, and told her that Truck 80 needed to be towed. Tr. at
209. Mulanax testified that Eby was upset and that she told him
to walk down to the terminal and pick up another truck so that he
could finish his route. Tr. at 209-10. Mulanax testified that
he told Eby that he was not going to walk to the terminal because
it was raining and because it was illegal to walk on an
interstate highway. Tr. at 211. According to Mulanax, this
exchange was repeated a couple of times before he finally said
that he "wasn't going to walk down in the goddamn rain." Tr. at
211. However, according to Eby, Mulanax told her "I ain't
walking in this fucking rain" and "If you want this fucking
freight delivered, somebody's going to come get me."[29] Tr. at
476. Eby's account of this conversation is corroborated by Ron
Salisbury, Debbie Salisbury, and John Walker, all of whom
testified that they overheard Mulanax say either "fuck" or
"fucking" on the radio. Tr. at 402 (testimony of Ron Salisbury),
Tr. at 493 (testimony of Debbie Salisbury), and Tr. at 522
(testimony of John Walker).
Eventually, Mulanax got a ride in the tow truck that hauled
Truck 80 to a local garage. Tr. at 212. Ron Salisbury met
Mulanax at the garage, helped him transfer the freight from Truck
80 into the blue van, and drove him back to Red Label. Tr. 213,
441. According to Mulanax, he then continued his route in the
blue van until he encountered a problem with the van's brakes.
Tr. at 215. As a result, he testified, he called Jimmy Walker on
the radio and told him that because of this problem, he did not
[PAGE 11]
want to continue driving the van.[30] Tr. at 214-15. According
to Mulanax, Walker then told him to get back to the office. Tr
at 216. As soon as he returned, Mulanax testified, he was told
by Jimmy Walker to go immediately to John Walker's office. Tr.
at 216. Once there, according to Mulanax, John Walker told him
that the Federal Communications Commission ("FCC") had called and
told him that Red Label was going to be fined for what Mulanax
had said over the radio, but that if Red Label fired him, the
fine would be smaller. Tr. at 217. Thereupon, Mulanax
testified, John Walker immediately discharged him. Id.
According to Mulanax, on the following Monday (September 12)
he returned to Red Label with a note for John Walker which
requested that he be given his final paycheck within 48 hours.
Tr. at 219. In response, Mulanax testified, Walker told him that
he would give him his paycheck by 4:00 p.m. that afternoon, but
that he would first have to sign a "Daily Incident Log" which set
forth the reasons for his termination. Tr. at 219. Mulanax
further testified that when he returned later to pick up his
check, he was shown the Daily Incident Log but refused to sign
it. Id., Tr. at 219-20, 526, 528-29, RX 12. The Daily
Incident Log (RX 12) states as follows:
payroll advance
not showing up to ride with
Owner to learn Route.
Late on Sat. had to call in
Owner --
9/9 driving trk that was out of
service -- key put in room with
no light -- parts had been on
order for 2 days -- came in that day.
9/9/94 Fired because of complaint
from F.C.C. monitor from Spo
on profanity over a B.C. Freq.
Wrote up by John Walker
chance read this report 9/12/94 16:30
and refused to sign it!
The date on the top of the Daily Incident Log is "9-12-94" but it
appears that the "1" in the "12" was originally a "9." RX 12.
John Walker's version of Mulanax's termination differs in
[PAGE 12]
two important respects from Mulanax's account. First, Walker
contends that he did not speak to Mulanax at all about his
termination until September 12 and claims that he was not even at
Red Label's office at the time of day on September 9 when Mulanax
alleges he was fired. Tr. at 525-26, 533-34. Second, Walker
contends that, contrary to Mulanax's assertions, he did not
receive the alleged phone call from the FCC until sometime during
the evening of September 9, when someone he believed to be an FCC
agent called him at home. Tr. at 529. According to Walker,
during the call an unidentified person asked him if he had heard
what was said on the radio that day and told him that "we cannot
have that kind of language over the radio." Tr. at 531. Walker
testified that although the caller did not identify himself, he
assumed that the caller was with the FCC. Tr. at 531, 571-72.
Walker also testified that although two of the entries on the
Daily Incident Log documenting Mulanax's termination were dated
September 9, all of the entries on that document were in fact
written on the morning of September 12. Tr. at 529, 570-71.
During his testimony John Walker gave two reasons for his
decision to terminate Mulanax. First, he testified, Mulanax was
discharged because of the language that he allegedly used over
the radio. Tr. at 529, 532. Indeed, Walker asserted, he decided
to fire Mulanax as soon as he overheard Mulanax's conversation
with Eby on the morning of September 9, and would have fired him
even if he had not received the alleged call from the FCC.[31]
Tr. at 523, 529, 532. In this regard, Walker also noted that he
had even fired Ron Salisbury during the last week of October of
1994 for using the same type of profanity on the radio.[32] Tr.
at 543-44. Second, Walker testified, he believes that Mulanax
knew Truck 80 was out of service when he took it on the morning
of September 9 and that he therefore, in effect, stole the truck.
Tr. at 533. In any event, Walker testified, he was not bothered
that Mulanax had taken Truck 80 to be inspected. Tr. at 532-33.
In fact, he noted, the truck was scheduled to be in the shop
anyway, and it only cost Red Label an additional $35 to pay for
the ticket. Id.
John Walker's assertion that he had been called by the FCC
was contradicted during the hearing by Jack Bazhaw, Engineer in
Charge of the regional FCC office with responsibility for
monitoring radio communications in the states of Oregon,
Washington, Idaho, and Montana. According to Bazhaw, FCC records
show that none of the personnel in his office were in any
location on September 9, 1994, where they could have overheard
land-mobile radio transmissions in the vicinity of Post Falls,
Idaho. Tr. at 389-90. Moreover, he testified, even if these
[PAGE 13]
personnel had overheard some profane language, they would have
been precluded from taking any action unless they had received a
written or oral complaint from a member of the general public.
Tr. at 391. Indeed, Bazhaw testified that he seriously doubts
whether any action would have been taken by the FCC even if
Mulanax had said the worst of what Red Label alleges. Tr. at
393-94. Bazhaw also noted that he could not recall a single time
during his 38 years with the FCC when the Commission had taken
action against a licensee for the use of profane language over a
land-based mobile frequency. Id.
According to Mulanax, after he was terminated from Red Label
he searched the classified ads in the Bonner County Daily Bee and
submitted employment applications to seven different employers,
but was unable to find any work other than a few odd jobs that
paid a total of $220. Tr. at 235-41. However, he testified,
just before the hearing he had applied for a $6.00 per hour job
at a publishing company and indicated that he expected to begin
working at that job on March 20, 1995. Tr. at 238. Mulanax
admits that while he was unemployed, he failed to read the
classified sections of various newspapers that would have had
more job listings than the Bonner County Daily Bee and that he
did not register with the local unemployment office. Tr. at 235,
253-54, 332. As well, he acknowledged that from the middle of
October of 1994 until the end of February of 1995, he attended
classes at a local police academy on weekends and two nights a
week.[33] Mulanax also acknowledged that he received a written
offer of re-employment from Red Label on February 28, or March 1,
1995, but indicated that he does not now wish to return to such
employment.[34] Tr. at 242-43, RX 39. He reiterated his
determination not to return to Red Label's employment, even after
being informed that it would be unlawful for Red Label to harass
him or manufacture a bogus reason for again terminating his
employment. Tr. at 242-43, RX 39.
ANALYSIS
The parties have stipulated to the existence of the factual
prerequisites for jurisdiction under the Act, and it is clear
from the evidence that such jurisdiction does exist. Tr. at 22-
23. In addition, the parties stipulated that Complainant
Andersen earned a salary of ,000 per month during the time that
he worked at Red Label Express and that Complainant Mulanax
earned $5.00 per hour while he worked as a driver for Red Label.
Id. Hence, the only issues in dispute are the legality
of the terminations and, if any violations occurred, the nature
of the appropriate remedies. See 49 U.S.C. §31105.
[PAGE 14]
The legal standard for determining if there has been a
violation of the STAA is well established. In particular, a
complainant must initially present a primafacie
case consisting of a showing that he or she engaged in protected
conduct, that the employer was aware of that conduct, and that
the employer took some adverse action against the
complainant.[35] In addition, as part of the primafacie case the complainant must present evidence
sufficient to raise the inference that the complainant's
protected activity was the likely reason for the adverse action.
If the complainant establishes a primafacie case,
the employer then has the burden of producing evidence to rebut
the presumption of disparate treatment by presenting evidence
that the alleged disparate treatment was motivated by legitimate,
non-discriminatory reasons. At this point, however, the
employer bears only a burden of producing evidence, and the
ultimate burden of persuasion of the existence of intentional
discrimination rests with the employee. If a respondent
successfully rebuts the employee's primafacie
case, the employee still has the opportunity to demonstrate that
the proffered reason was not the true reason for the employment
decision. This may be accomplished either directly, by
persuading the factfinder that a discriminatory reason more
likely motivated the employer, or indirectly, by showing that the
employer's proffered explanation is unworthy of credence. In
either case, the factfinder may then conclude that the employer's
proffered reason is a pretext and rule that the complainant has
proved actionable retaliation for the protected activity.
Conversely, the trier of fact may conclude that a respondent was
not motivated in whole or in part by the employee's protected
activity and rule that the employee has failed to establish his
or her case by a preponderance of the evidence. Finally, the
factfinder may decide that the employer was motivated by both
prohibited and legitimate reasons, i.e., that the employer had
dual or mixed motives. In such a case, the burden of proof
shifts to the respondent to show by a preponderance of the
evidence that it would have taken the same action with respect to
the complainant, even in the absence of the employee's protected
conduct. See Darty v. Zack Company, 80-ERA-2 (April 25,
1983); McGavock v. Elbar, Inc., 86-STA-1 (July 9, 1986);
Nix v. Nehi-RC Bottling Co., Inc., 84-STA-1 (July 13,
1984). SeealsoRoadway Express, Inc. v.
Brock, 830 F.2d 179 n.6 (11th Cir. 1987).
The provisions of the STAA expressly provide that if a
complainant has been terminated from his or her employment in
violation of the Act's provisions, the complainant is entitled to
reinstatement and compensatory damages, including back pay. 49
[PAGE 15]
U.S.C. §31105(b)(3)(A). Moreover, any uncertainties
concerning the amounts that an employee would have earned but for
the illegal conduct should be resolved against the discriminating
party. Moravec v. HC & M Transportation, Inc., 90-STA-44
(Jan. 6, 1992). In addition, the Secretary may award pre-
judgment interest on awards of back pay and benefits based on the
interest rates set forth in 26 U.S.C. §6621. Nidy v.
Benton Enterprises, 90-STA-11 (Nov. 19, 1991).
A. Andersen's Termination
As noted above, in order to establish a primafacie case a complainant must establish: (1) that he
engaged in protected activity, (2) that the respondent knew of
the protected activity, (3) that the respondent took adverse
action against him, and (4) that the protected activity was the
likely reason for the adverse action. It is clear that Andersen
has proven the first three of these elements. He definitely
engaged in a long series of protected activities, virtually all
of these activities were known to Red Label, and an adverse
action was taken against him. Thus, if Andersen has also
produced enough evidence to warrant at least an inference that
his protected activities were a likely reason for his
termination, he will have established a primafacie
case. In this regard, review of the record indicates that
Andersen has clearly satisfied this requirement. Indeed, the
record shows such a close temporal proximity between Anderson's
protected activities on September 9 and his termination that
there is a very strong reason for concluding that there was a
causal relationship between Andersen's termination and his
protected activities. SeeMoravec v. HC & M
Transportation, Inc., 90-STA-44 (Jan. 6, 1992).
Since Andersen has established a primafacie
case, Red Label has the burden of producing evidence to show that
the adverse action against Andersen was in fact motivated by
legitimate and lawful considerations. As previously explained,
Red Label has attempted to satisfy this burden by presenting the
testimony of various witnesses who alleged that Andersen had a
"bad attitude" and "personality conflicts" with other employees.
Such evidence is sufficient to meet an employer's burden of
producing evidence of a lawful motive for its conduct.
SeeSt. Mary's Honor Center v. Hicks, ___ U.S. ___,
113 S.Ct. 2742 (1993); Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 254-55 (1981). Accordingly, it is
necessary to weigh all of the relevant evidence in order to
determine if Andersen was fired in violation of the STAA.
[PAGE 16]
Review of all of the evidence concerning Andersen's
termination by Red Label clearly demonstrates that the
termination was the direct result of Andersen's safety complaints
and that the alternative reasons that Red Label has given for the
termination are nothing but a pretext. Indeed, the alternative
justifications offered by John Walker and the other Red Label
witnesses are remarkably unpersuasive. Although these witnesses
have managed to come up with a long list of derogatory
adjectives to describe Andersen's personality (e.g. "obnoxious,"
"volatile," "abrasive," and "moody"), they have failed to provide
enough specific examples of antisocial conduct by Andersen to
give any credibility to such assertions. In fact, the only
specific example of such conduct by Andersen is the testimony
indicating that Andersen spoke too loudly on July 21, 1994, when
complaining to John Walker about Red Label's continued use of a
truck that was supposed to have been taken out of service.[36]
In view of the fact that Andersen was not even warned about such
allegedly insubordinate behavior at the time it occurred, it is
hard to believe that it provided an independent basis for
Andersen's termination almost seven weeks later. See Tr.
at 65, 108, 555. Likewise, Red Label's contention that Andersen
was terminated in order to prevent Jimmy Walker from physically
attacking him is simply not credible, particularly in view of
Jimmy Walker's failure to articulate or justify such extreme
hostility when interviewed by Russell Hart in November of 1994.
Moreover, it appears more likely than not that if Jimmy Walker
did have some animosity toward Andersen, the animosity was the
result of Andersen's protected activities. See Tr. at
534-36, 542, 558-59 (testimony by John Walker indicating that his
son Jimmy had told him that Andersen had taken Truck 84 to be
inspected on September 9 and had also encouraged Tom Jones to
seek such an inspection). Hence, Andersen's protected activities
would have at least been an indirect cause of the termination.
It is of course recognized that there is some evidence that
in the past other Red Label drivers have requested vehicle
inspections without being fired as a result. However, this
evidence is very sketchy and by itself is not sufficient to
outweigh the extensive volume of evidence which indicates that
the reasons now being given for Andersen's termination are in
fact a pretext.
Because Andersen was terminated from his employment in
violation of the STAA, Andersen is entitled to reinstatement and
back pay with interest. However, at the hearing Andersen
rejected Red Label's offer of reinstatement. Therefore, the only
matter in dispute is the extent of Andersen's entitlement to back
[PAGE 17]
pay. In this regard, the evidence indicates that although
Andersen was able to earn approximately ,800 as a self-employed
logger after being fired by Red Label, he was not able to obtain
any steady, full-time employment that paid as much as his job at
Red Label until he began working at Sunshine Minting on January
30, 1995. Hence, I find that Andersen suffered an actual loss of
income between September 9, 1994, and January 30, 1995, and that
he is entitled to recover the difference between what he earned
as a logger and what he would have earned by working for Red
Label during that period.[37] Since Andersen would have earned
an additional $4,750 if his employment by Red Label had continued
until January 30, 1995, (i.e., 4.75 months times ,000), his
unlawful termination by Red Label caused him a net loss of $2,950
(i.e., $4,750 minus ,800 earned logging). In addition,
Andersen also lost approximately $140 in wages due to his
attendance at the hearing. Thus, he is entitled to a total
payment of $3,090, plus interest at the rates prescribed at 26
U.S.C. §6621. It is hereby officially noticed that during
the relevant period the annual interest rate prescribed under 26
U.S.C. §6621 was 9 percent. Accordingly, the $3,090
liability for lost wages pay shall accrue interest at an annual
rate of 9 percent until paid.
B. Mulanax's Termination
Red Label does not dispute the evidence indicating that
Mulanax engaged in protected activities and that an adverse
action was taken against him. However, Red Label does dispute
the contention that John Walker knew of Mulanax's protected
activities at the time he decided to fire him. As well, Red
Label also disputes the contention that those activities were a
likely cause for the termination.
1. Knowledge of Protected Activities. The evidence
clearly shows that Mulanax engaged in two distinct protected
activities on September 9: he arranged for the inspection of
Truck 80 and later in the day refused to continue driving a van
because of alleged problems with its brakes. There is no direct
evidence indicating exactly when John Walker first learned of
these actions, and Walker has testified that he decided to
terminate Mulanax before learning of either of these protected
activities, i.e., as soon as he overheard Mulanax use obscenities
on the radio during the morning of September 9. Hence, if
Walker's testimony were credible, it would be necessary to find
that the Prosecuting Party has failed to establish one of the key
elements of a primafacie case. However, I find
that John Walker's testimony on this issue is not credible and
that he did not in
[PAGE 18]
fact decide to terminate Mulanax until after he had learned of
Mulanax's protected activities. There are two primary reasons
for this conclusion.
First, the implausibility of the story that Walker told
Mulanax about being contacted by the FCC circumstantially
indicates that Walker in fact knew of Mulanax's protected
activities at the time he decided to fire Mulanax and was
attempting to use the FCC story to deliberately conceal his
actual motivation for that action. Indeed, the evidence that
Walker fabricated the story about the call from the FCC is quite
strong. For instance, it is clear from Jack Bazhaw's testimony
that the FCC never contacted Walker about Mulanax's language.
Moreover, a variety of other evidence shows that over time Walker
has changed his account of the alleged call in several material
respects. For example, although Walker initially told Mulanax
that he had received the alleged call before noon on September 9,
during the hearing Walker asserted that the call had not come
until he was at his home on the evening of September 9. Tr. at
217, 529. Similarly, even though Walker indicated to Mulanax
that the FCC had represented that it would reduce a putative
monetary fine if Mulanax were fired, Walker now asserts that the
alleged caller did not even identify himself as an FCC
employee.[38] Id. Likewise, Walker wrote on the Daily
Incident Log documenting Mulanax's termination that Mulanax had
been fired on "9/9/94," but now contends that this entry was back
dated and that the termination did not occur until September 12.
RX 12, Tr. at 529.
Second, there is convincing circumstantial evidence that by
the time Walker actually informed Mulanax that he was being
fired, he knew of at least one and probably both of Mulanax's
protected activities. For example, in view of the operational
problems apparently caused by the sidelining of Trucks 80 and 84
on the morning of September 9, it is more likely than not that
the dispatcher or some other employee of Red Label promptly
informed Walker that these two trucks had been taken out of
service as a result of the actions of Andersen and Mulanax.
Indeed, it appears highly likely that if Walker did in fact
overhear Mulanax's argument with Cheryl Eby on the morning of
September 9, he also overheard enough of the conversation to
determine that Mulanax had requested an inspection of Truck 80.
Likewise, since Mulanax testified that he conveyed his refusal to
continue driving the blue van directly to Jimmy Walker shortly
before Jimmy Walker told him to go immediately to John Walker's
office, it also seems likely that when Mulanax appeared in the
office and was fired, John Walker also knew of Mulanax's refusal
[PAGE 19]
to drive the van. Tr. at 215-16. In addition, the fact that Red
Label is a small, informally managed family enterprise may be
sufficient evidence by itself to warrant a finding that Mulanax's
protected activities were made known to John Walker before
Mulanax's termination. SeeD & D Distribution Co. v.
NLRB, 801 F.2d 636, 641 (discussing the "small shop
doctrine"); Ertel v. Giroux Brothers Transportation,
Inc., 88-STA-24 (Feb. 16, 1989).
2. Likely Cause for the Adverse Action. The
Prosecuting Party contends that the close temporal relationship
between Mulanax's protected activities and his termination is
sufficient to warrant a finding that the protected activities
were a likely reason for the termination. In an effort to refute
this contention, Red Label again relies on the assertion that
John Walker decided to fire Mulanax immediately after hearing him
use profanity during the morning of September 9 and before he had
any knowledge of Mulanax's protected activities. For the reasons
previously explained, this assertion is not convincing.
Accordingly, I find that since Mulanax's termination occurred
almost immediately after he engaged in protected activities,
there has been a sufficient showing that those activities were a
likely reason for the termination. This conclusion is, of
course, strengthened by the fact that John Walker's statements to
Mulanax at the time of his termination have since been shown to
be less than credible.
Since the evidence shows that all four prerequisites for a
primafacie case have been met, Red Label has the
burden of producing evidence to show that Mulanax's termination
was in fact motivated by lawful considerations. Red Label has
attempted to satisfy this burden by offering evidence that the
actual reason for the termination was Mulanax's alleged use of
profanity on the radio and his allegedly unauthorized taking of
Truck 80 on the morning of September 9. Red Label has offered
testimony from a variety of witnesses to substantiate both of
these assertions, and such evidence is more than sufficient to
meet an employer's burden of producing evidence of a lawful
motive. SeeBurdine, supra. Accordingly,
it is necessary to weigh all of the relevant evidence in order to
determine whether Mulanax's termination did in fact violate the
STAA.
Red Label's primary justification for terminating Mulanax is
that he used terms such as "the fucking rain" and "the fucking
freight" when speaking on Red Label's private radio frequency.
Although Mulanax has denied using such language, the
preponderance of the evidence supports a conclusion that he did
in fact utter such words. The use of such profanity on the radio
[PAGE 20]
is unprofessional, offensive, and could in theory jeopardize Red
Label's license to use a private radio frequency. Hence, it is
entirely conceivable that Mulanax's termination could have been
motivated by bona fide dissatisfaction with his use of such
profanity. However, there is other evidence which strongly
militates against such a conclusion and clearly demonstrates that
Mulanax's use of profanity was a mere pretext for the
termination. First, as already explained, the evidence shows
that rather than simply telling Mulanax that he was being fired
for using profanity, John Walker fabricated a story about being
called by the FCC. Second, Red Label's nearly simultaneous
termination of Andersen for having Truck 84 inspected clearly
supports an inference that the real reason for Mulanax's
termination was his nearly identical act of having Truck 80
inspected. See 29 C.F.R. §18.404(b). Finally, there
is evidence which indicates that the use of profanity on Red
Label's radio frequency was not uncommon and not previously a
cause for termination.[39]
Red Label's second alleged justification for terminating
Mulanax is that he deliberately drove a truck that had been taken
out of service. This justification is somewhat more credible
than the first justification, but it is still not convincing.
Although Ron Salisbury did testify that he had taken Truck 80 out
of service on the evening of September 8, the credibility of this
testimony is severely undermined by the fact that Red Label has
given inconsistent accounts of how and when the truck was
supposedly taken out of service. For example, although Salisbury
now claims that the key to Truck 80 was given an "out-of-service"
tag and placed on a special pegboard, Red Label's interrogatory
answers indicate that nothing more was done to remove the truck
from service than "simply" removing the keys from the truck. Tr.
at 406-09, 425, 567-68. Moreover, there is even a direct
conflict among Red Label's own witnesses about whether the
tagging and pegboard procedure described by Salisbury was even
being used at the time that Mulanax was fired.[40] See
Tr. at 514 (testimony of John Walker), Tr. at 477-79 (testimony
of Cheryl Eby), Tr. at 493-94 (testimony of Debbie Salisbury).
In addition, even though Salisbury asserts that he did not
discover the mechanical problem that caused him to take Truck 80
out of service until September 8, the Daily Incident Log
documenting Mulanax's termination states that parts for Truck 80
had been on order for two days. Tr. at 424, RX 12. If nothing
else, such dramatic inconsistencies suggest that any inquiry by
John Walker into Mulanax's use of Truck 80 was not thorough
enough to be regarded as a good faith attempt to determine if
Mulanax had actually done something improper. Moreover, when
such evidence is considered along with John Walker's dubious
statements
[PAGE 21]
concerning the alleged telephone call from the FCC, it is almost
impossible to conclude that Mulanax's allegedly unauthorized use
of Truck 80 was a bona fide reason for his termination.
Accordingly, I find that both of the reasons given for Mulanax's
termination are mere pretexts and that the termination violated
the provisions of the STAA.[41]
Since the evidence indicates that Mulanax was terminated
from his employment as a result of his protected activities, he
is entitled to reinstatement and back pay with interest.
However, as previously explained, Mulanax has apparently found
another job and has, in any event, declined Red Label's offer of
re-employment. Hence, the only dispute concerns the amount of
back pay to be awarded. In this regard, Mulanax estimated that
during the period he was employed by Red Label, he was paid a
total of $2,040. Tr. at 180. However, Red Label's payroll
records indicate that between Mulanax's first day of work on July
14 and his last day of work on September 9, he worked only 283.25
hours--275.25 hours of straight time and 8.0 hours of overtime.
See RX 8, RX 10, RX 11. Since the parties have stipulated
that Mulanax's hourly wage rate was only $5.00, it appears that
Mulanax's testimony is in error and that in fact his total
earnings during his 58 days of employment by Red Label were no
more than ,436.25. See Tr. at 23 (stipulation that
Mulanax earned $5.00 per hour during the period he was employed
as a driver). Accordingly, I find that Mulanax's back pay award
should be based on average weekly earnings of $173.46 (i.e.,
,436.25 divided by 8.28 weeks). A total of 24.5 weeks elapsed
between Mulanax's termination on September 9, 1994, and Mulanax's
receipt of Red Label's offer of reemployment on March 1,
1995.[42] Hence, Mulanax's total potential wage loss is
$4,249.77. However, since there is evidence that Mulanax earned
approximately $220 doing odd jobs prior to receiving Red Label's
offer of re-employment, the actual total wage loss is only
$4,029.77.
Red Label argues that if Mulanax has any entitlement to back
pay, the amount of any award should be substantially reduced
because he failed to make a determined effort to find alternative
employment and because he could not have been legally employed as
a commercial truck driver by Red Label or any other motor carrier
until his twenty-first birthday on March 12, 1995. Neither
argument is convincing.
The rules concerning an employer's liability for back pay in
STAA cases are set forth in Hufstetler v. Roadway Express,
Inc., 85-STA-8 (Aug. 21, 1986), overruledonothergrounds, Roadway
[PAGE 22]
Express, Inc. v. Brock, 830 F.2d 179 (11th Cir. 1987). In
that decision, the Secretary of Labor determined that in cases
arising under the STAA, lost wages will be fully compensable
unless the respondent bears the burden of showing that the
complainant "intentionally and heedlessly" failed to mitigate his
damages by seeking alternative employment. SeealsoJackson v. Shell Oil Company, 702 F.2d 197,
201-02 (9th Cir. 1983) (holding that in comparable cases a
defendant has the burden of showing failure to mitigate damages
from loss of employment by establishing (1) that there were
suitable alternative jobs available which the plaintiff could
have discovered, and (2) that the plaintiff failed to use
reasonable care and diligence in seeking them out). It is clear
that Red Label has failed to satisfy the requirements set forth
in Hufstetler. Although it appears that Mulanax could
have made a somewhat more concerted effort to seek alternative
employment, the evidence does not demonstrate that his attempts
to find new employment were so deficient that they could be
characterized as intentionally and heedlessly ineffective.
Moreover, there is no evidence in the record which indicates that
Mulanax would have found a suitable alternative job, even if he
had made a greater effort. It is of course recognized that for
about four and one-half months Mulanax was a student at a local
police academy. However, the evidence shows that the police
academy classes were held only on weekends and evenings so that
students could be employed on a full-time basis. Hence, any
argument that Mulanax's enrollment in the academy prevented him
from working is unpersuasive.
During the hearing, Red Label also appeared to contend that
any award of back pay must be reduced because prior to March 12,
1995, Mulanax was under the age of 21 and therefore barred from
driving for any commercial motor carrier by the provisions of 49
C.F.R. §391.11(b). See Tr. at 21. Under the Supreme
Court's recent decision in McKennon v. Nashville Banner
Publishing Company, ____U.S.____, 115 S.Ct. 879 (1995), when
evidence which would justify an employee's termination is not
discovered until after an alleged act of illegal discrimination
has already occurred, a defendant accused of unlawful
discrimination may not use such evidence to totally escape
liability for unlawful conduct, but may, in appropriate
circumstances, rely on such "after-acquired evidence" to avoid
reinstating the terminated employee or to reduce the amount of
damages that would otherwise be owed. Thus, it could be argued
that since Mulanax was completely barred by law from working as a
commercial truck driver prior to his twenty-first birthday, he
would have had to have been fired anyway and is therefore not
entitled to any back pay award in this case. However, such a
conclusion would be in
[PAGE 23]
error because Red Label has failed to make the kind of
evidentiary showing that is necessary to terminate liability for
back pay under the McKennon decision. In particular, even
though the McKennon decision explicitly indicates that
back pay must continue to be paid until such time as an employer
first became aware of a lawful reason for terminating an
unlawfully discharged employee, in this case Red Label has failed
to offer into evidence any information indicating when it first
realized that its employment of Mulanax as a driver was
unlawful.[43] Moreover, even if Red Label had shown when it
first became aware of the regulation prohibiting the employment
of such drivers, the equitable doctrine of unclean hands would
still prevent Red Label from now relying on its own illegal
conduct in hiring an underage driver as a justification for
reducing damages that would otherwise be owed.[44]
ORDER
1. The Respondent shall pay Complainant Andersen back pay in
the amount of $3,090.00 plus interest at an annual rate of 9.0
percent until paid.
2. The Respondent shall pay Complainant Mulanax back pay in
the amount of $4,029.77 plus interest at an annual rate of 9.0
percent until paid.
3. The Respondent shall expunge from its files all adverse
references to the protected activities of Complainants Andersen
and Mulanax and shall refrain from providing adverse information
to any third party about the job performance of either
Complainant.
_____________________________
Paul A. Mapes
Administrative Law Judge
NOTICE: This Recommended Decision and Order and the related
administrative file is herewith being forwarded to the Office of
Administrative Appeals, U.S. Department of Labor, Room S-4309,
Frances Perkins Building, 200 Constitution Avenue, N.W.,
Washington, D.C. 20210. The Office of Administrative Appeals
has responsibility for advising and assisting the Secretary of
Labor in the preparation and issuance of final decisions in
employee protection cases adjudicated under the regulations set
forth at 29 C.F.R. Parts 24 and 1978.
[ENDNOTES]
[1]
The STAA was enacted for the purpose of promoting safety on the
nation's highways. Among other things, it prohibits trucking
companies from discharging or otherwise discriminating against
employees who have engaged in certain safety-related activities.
Regulations implementing Section 405 of the STAA are set forth at
29 C.F.R. §1978.
[2]
The final reply brief was received in the San Francisco office of
the Office of Administrative Law Judges on June 22, 1995.
[3]
According to Andersen, many of these defects were never fixed, or
were fixed only after a lengthy period of time. For example,
Andersen testified, during the entire time that he drove Truck
84, neither its interior dome light nor exterior marker lights
were in working order. Tr. at 32, 36-37, 42-43.
[4]
During the hearing the Respondent objected to the admission of
this statement as well as to the admission of various other
similar statements by mechanics and police officers on the
grounds that such out-of-court assertions concerning the
mechanical condition of Red Label trucks are hearsay. Under
decisions and regulations promulgated by the Secretary of Labor,
out-of-court statements are generally not admissible in
proceedings under the STAA to prove the truth of the matters
asserted in such statements unless the statements fall within one
or more of the specific exceptions set forth at 29 C.F.R.
§18.803-804. SeeHadley v. Southeast Coop.
Service Co., 86-STA-24 (June 28, 1991); 29 C.F.R.
§1978.106; 29 C.F.R. §18.101. Although these
exceptions are more extensive than the various exceptions to the
hearsay rule set forth in the Federal Rules of Evidence and
common law evidence treatises, they are not so extensive that
they would ordinarily permit out-of-court statements of mechanics
or police officers to be admitted for the purpose of proving that
a particular vehicle was unsafe to operate. Hence, such
statements cannot be regarded as probative evidence concerning
the mechanical condition of the various trucks driven by the
Complainants. However, it is also important to recognize that
such statements can be admitted into evidence for other purposes,
such as showing that a Complainant engaged in a protected
activity or that a Complainant had a reasonable and good faith
basis for a particular action. Thus, to the extent that such
hearsay statements have been admitted into evidence in this
proceeding, they have been admitted solely for such purposes and
have not been treated as probative in any other respect. Any
evidentiary ruling to the contrary during the hearing is hereby
withdrawn.
[5]
John Walker testified that he believes that the exhaust leak was
on Truck Number 21, not Truck 84. Tr at 516.
[6]
Ron Salisbury testified that he does not remember seeing the
ticket itself, but does recall Andersen telling him that he had
received either a ticket or a warning concerning an exhaust leak.
Tr. at 414-15.
[7]
According to John Walker, Andersen also stated that he had asked
the highway patrol to pull him over because of the exhaust leak.
Tr. at 515-17.
[8]
There were apparently at least two other witnesses to the
conversation, Cheryl Eby, a dispatcher at Red Label, and Shane
Steele. According to Eby, Andersen was very loud and angry. Tr.
at 481-82. In contrast, Shane Steele testified that although
Andersen was upset and raised his voice, he did not yell, curse,
or in any other way act disrespectfully toward Walker. Tr. at
312, 326.
[9]
Shane Steele testified that he observed Andersen writing this
note and saw him place it in the center of John Walker's desk.
Tr. at 315-17. As well, both Debbie Salisbury and John Walker
acknowledged reading the note. Tr. at 501, 546-47.
[10]
These "estimates" are not in fact actual estimates of repair
costs but merely statements asserting that the steering mechanism
in Truck 84 needed repairs. Since these statements constitute
hearsay, they have not been considered for purposes of proving
the truth of the matter asserted therein, i.e., that repairs were
actually needed. These statements, however, do corroborate
Andersen's assertion that he made complaints about safety
problems with Truck 84 and have therefore been admitted into
evidence for that purpose.
[11]
John Walker has also acknowledged that he probably wrote the
notation on the bottom of the note which states, in a different
handwriting: "9/6 -- parts ordered, out of service." PX 4, Tr.
at 557-58. Walker contends, however, that this statement does
not mean that Truck 84 had been taken out of service on September
6, but only that the part was ordered on the sixth and that the
truck was scheduled to be out of service on September 10, at
which time he was going to replace the drag link himself. Tr. at
557-58, 521.
[12]
The ticket states, in relevant part: "CORRECT VIOLATION(S)
IMMEDIATELY. Return this signed card for proof of compliance
within 15 days." PX 5.
[13]
Since the individual who made this statement did not testify at
the hearing, the statement has not been considered for purposes
of proving that the truck was unsafe. However, it has been
considered as circumstantial evidence that Complainant Andersen
reported alleged safety problems with Truck 84.
[14]
Salisbury, however, testified that she does not remember saying
these words to Andersen. Tr. at 501.
[15]
Hart testified that prior to interviewing John Walker, he had
interviewed his son, Jimmy Walker. According to Hart, Jimmy
Walker told him that on July 21, 1994, Andersen "blew up" at John
Walker while there were members of a consulting firm in Walker's
office, and that the consultants remarked that they would have
discharged Andersen for his actions. Tr at 353. Hart further
testified that Jimmy Walker had also stated that he did not know
anything about the Daily Incident Log entry dated September 9 and
that Hart would have to ask his father about it. Id.
[16]
According to Walker, the final entry on the Daily Incident Log
concerning Andersen was actually written on September 10, 1994,
but dated September 9, 1994, because that was the last day that
Andersen was to be paid. Tr. at 560.
[17]
John Walker's assertions about Andersen's alleged attitude
problems were supported by various other Red Label employees.
For example, Ron Salisbury testified that he had problems getting
along with Andersen and that he was afraid of Andersen because of
his "attitude and moodiness." Tr. at 415. Likewise, Cheryl Eby
testified that every time she saw Andersen in the office he was
so "volatile" and "highly excited" that she did not like being in
the same room with him. Tr. at 481. Similarly, Debbie Salisbury
testified that Andersen was "obnoxious" and had a "terrible
temper." Tr. at 496. There is, however, other evidence which
conflicts with this testimony. For example, on cross examination
Ron Salisbury admitted that Andersen had never said anything
threatening to him, that he never heard Andersen raise his voice,
and that he only spoke with Andersen on a few occasions. Tr. at
416, 434. Similarly, Eby admitted that she never complained
about Andersen and that he never did anything to her personally.
Tr. at 481. Moreover, there is no evidence that Andersen was
ever reprimanded for insubordination, disrespect, personality
conflicts, or attitude. Tr. at 108-09. In addition, Shane
Steele testified that the only time he ever heard Andersen raise
his voice at Red Label was on July 21, 1994. Steele also
asserted that he never saw Andersen act disrespectfully toward
any Red Label employees and was unaware of any problems between
Andersen and the other office workers. Tr. at 308, 313.
[18]
In support of this assertion, John Walker also testified that
other drivers have intentionally taken trucks to be inspected
without being fired. Tr. at 542. For example, he testified,
drivers Dave Stoddard and Tom Jones had taken trucks to be
inspected two or three times without losing their jobs. Tr. at
153, 520, 542.
[19]
In particular, Walker testified that Andersen's decision to take
Truck 84 to the scales "was just another, show you that I can do
this or whatever," and "a culmination of I'm better than thou"
behavior, but that "[i]t really wasn't that much to figure into
[the termination]." Tr. at 542.
[20]
It is noted that Andersen testified that as of March 13, 1995, he
had worked at Sunshine Minting for exactly six full weeks, and
therefore concluded that he had begun working at that job on
January 23, 1995. Tr. at 130. Reference to the calendar,
however, indicates that if in fact Mr. Andersen had been working
for exactly six full weeks on March 13, he must have begun his
employment with Sunshine Mining on January 30, not January 23.
[21]
This offer is contained in Respondent's Exhibit 40, which was
marked at the time of the hearing, but not offered into evidence
by any party. As made clear in that letter, the offer was made
only because Andersen's reinstatement pendentelite
had been ordered by the Regional Administrator of OSHA on
December 14, 1994, pursuant to the provisions of 49 U.S.C.
§31105(b)(2)(A).
[22]
According to Mulanax, none of these conditions was repaired
during the period when he drove Truck 80, even though he filled
out inspection reports an average of three or four times a week.
Tr. at 182, 189.
[23]
According to Mulanax, the carrier arm problem would cause the
truck to shimmy and shake, and he would have to come to a
complete stop in order to stop the shaking. Tr. at 188.
Mulanax testified that Ron Salisbury and James Walker responded
to his initial reports of the problem by chuckling and saying
"its getting worse, huh." Tr. at 189-90.
[24]
Debbie Salisbury testified that she does not remember telling
Mulanax that he had to drive two routes on September 9, 1994, but
acknowledged that she could have made such a statement. Tr at
507. Cheryl Eby, however, testified that Mulanax was not asked
to drive more than one route on the morning of September 9, 1994.
Tr at 486.
[25]
Cheryl Eby, however, denies any recollection of Mulanax asking
about the keys for Truck 80 on the morning of September 9. Tr.
at 480, 486.
[26]
Both Andersen and Steele also testified that they were unaware
that the absence of keys from a truck was supposed to mean that
the truck was out of service. Tr. at 109-13 (testimony of
Andersen), Tr. at 300-01, 335 (testimony of Steele). Steele also
testified that he was dispatching on September 6, 7, and 8 and
that he was not told on any of those days that Truck 80 was out
of service. Tr. at 304.
[27]
However, it is noted that in answers to interrogatories, Red
Label stated that Truck 80 was taken out of service on or around
September 5, 1994, but, in any event, before September 9, 1994,
and that the only measure taken to withdraw the truck from
service was the removal of the keys from the vehicle. Tr at 425,
568. It is also noted that Mulanax testified that he drove Truck
80 on September 6, 7 and 8 and that the keys were in the ignition
on each of these days. Tr. at 227.
[28]
When a truck is "red-tagged," it can no longer be driven and must
be either towed away or fixed. Tr at 209.
[29]
However, on cross examination Eby admitted telling OSHA
investigator Russell Hart in November of 1994 that Mulanax had
told her that he wasn't going to walk in the "damn rain." Tr. at
489-90. When Hart was called as a rebuttal witness, he verified
that Eby had in fact said that Mulanax had referred to the "damn
rain," but further testified that the during the same interview
Eby also said that Mulanax had "used the F word." Tr. at 591.
[30]
According to Mulanax, both Jimmy Walker and Ron Salisbury told
him about the problem with the brakes before he left with the
van. Tr. at 213-14. Salisbury, however, testified that there
were no problems with the van's brakes until Mulanax returned
from his route. Tr at 442.
[31]
Walker also asserted that he had attempted to call Red Label over
the radio immediately after hearing Mulanax's comments, but had
not been heard because his radio's transmitter was too weak to
reach Red Label's dispatcher from his location. Tr. at 524-25.
At that time, Walker asserted, he was aware that Mulanax was at
the scales but did not suspect that Mulanax might have driven a
truck to the scales with the intention of having it inspected.
Tr. at 562-63.
[32]
Although the testimony of Ron Salisbury corroborates Walker's
assertion that he fired Salisbury for using profane language on
the radio, the record also shows that Salisbury was subsequently
rehired. Tr. at 417, 543-44.
[33]
The classes lasted from 6:00 to 10:00 p.m. on Tuesdays and
Thursdays and all day on Saturday and Sunday. Tr. at 245.
Mulanax voluntarily withdrew from the academy in February of 1995
after being told that he had been observed drinking alcohol
before his twenty-first birthday. Tr. at 235, 244-45, 295.
[34]
Like the offer of reinstatement sent to Anderson, Red Label's
offer to re-employ Mulanax was made only because the Regional
Administrator of OSHA issued an order in December of 1994
requiring that such an offer be made.
[35]
In this regard, it is noted that an employee's safety complaints
fall into the category of protected conduct, even if there is no
showing that the complaints were actually meritorious. Yellow
Freight System, Inc. v. Martin, 954 F.2d 353, 356-57 (6th
Cir. 1992); Allen v. Revco D.D., Inc., 91-STA-9 (Sept.
24, 1991). Moreover, the types of safety complaints protected
under the STAA include both internal complaints and complaints to
law enforcement agencies. Doyle v. Rich Transport, Inc.,
93-STA-17 (April 1, 1994); Davis v. H.R. Hill, Inc., 86-
STA-18 (March 18, 1987).
[36]
It is also noted that even if Andersen's conduct on July 21 could
be fairly characterized as insubordinate, it occurred in the
context of a clearly protected activity and was hardly so extreme
as to be indefensible in its context. Hence, by itself such
conduct would not provide a lawful basis for Andersen's
termination. SeeKenneway v. Matlack, 88-STA-20
(June 15, 1989).
[37]
The Prosecuting Party contends that Andersen is also entitled to
recover for an alleged difference between what Andersen earned at
Sunshine Minting between January 30 and March 13, 1995, and what
he would have earned if employed by Red Label during that period.
However, the Prosecuting Party has failed to recognize that
Andersen's earnings at Red Label were almost exactly the same on
a weekly basis as his earnings at Sunshine Minting, i.e., that
when Andersen's ,000 monthly salary at Red Label is annualized
over 52 weeks and then converted into a weekly salary, it is
equivalent to $230 a week---the same amount that Andersen
testified he was earning at Sunshine Minting.
[38]
It is recognized, of course, that Walker now denies having spoken
at all to Mulanax on September 9. However, this denial is not
credible in view of the fact that Walker's own handwritten notes
indicate that he fired Mulanax on the ninth and the fact that
other documentary evidence clearly indicates that on September 12
Mulanax reported to OSHA that he had been fired by Walker on
September 9. See RX 12 (Daily Incident Log documenting
Mulanax's termination), PX 7 (OSHA report of Mulanax's initial
complaint). Indeed, it appears that Walker is now asserting that
the termination did not occur until September 12 in order to
explain away the fact that about two months after the termination
he told an OSHA investigator that the alleged FCC call had not
taken place until the evening of September 9. Tr. at 362.
[39]
For example, Shane Steele testified that he heard swear words
over the radio, including "shit," "damn" and "fuck," two to three
times a month, and that usually the use of such language just
resulted in a verbal reprimand over the radio. Tr. at 314-15.
Likewise, Cheryl Eby testified that other drivers said "shit,"
"damn," and "hell" over the radio, and that as far as she knew,
they were only reprimanded for saying these words. Tr. at 488.
Eby also testified that September 9, 1994, was the only day she
ever heard Mulanax swear over the radio. Tr. at 488-89. While
Red Label has emphasizes Ron Salisbury's testimony that he was
fired during the latter part of October of 1994 for saying "fuck"
over the radio, such posthoc evidence is not
particularly convincing. Indeed, it appears that if Salisbury
had really believed that Mulanax was fired for using such
language, he would not have subsequently used it himself.
Finally, it is noted that although Red Label's post-hearing brief
asserts that John Walker also fired his own son for using
profanity on the radio, there is in fact no support for this
assertion anywhere in the hearing transcript.
[40]
In contrast, Andersen, Mulanax and Shane Steele all testified
that such a procedure was not being followed prior to September
9, 1994. Tr. at 109 (testimony of Andersen), Tr. at 200
(testimony of Mulanax), Tr. at 300-01 (testimony of Shane
Steele).
[41]
It is noted that there is some evidence in the record suggesting
that Red Label was dissatisfied with Mulanax's attendance record.
See, e.g., RX 12 (notations on Daily Incident Log
indicating that on one or more occasions Mulanax had arrived late
or not at all for work). However, it appears that Red Label is
not now claiming that these attendance problems were the reason
for Mulanax's termination. Moreover, the evidence indicates that
the bulk of any such attendance problems occurred long before
Mulanax's termination and, in fact, even preceded his promotion
from terminal worker to driver. Tr. at 176-77, 229-32, 576.
Accordingly, I find that Mulanax's attendance problems were not
one of the true reasons for his termination. SeeYellow Freight Systems v. Reich, 8 F.3d 980, 986 (4th Cir.
1993).
[42]
In this regard, it is noted that the Prosecuting Party has cited
a decision from the Second Circuit in support of its argument
that Red Label's liability for back pay should not be terminated
until the date that Mulanax expressly rejected Red Label's offer
of reinstatement. SeeClarke v. Frank, 960 F.2d
1146, 1151-52 (2nd Cir. 1992). However, that decision did not
directly address remedies under the STAA. Moreover, the
Secretary of Labor has indicated that in cases arising under the
STAA an employer's liability for back pay continues only until a
respondent reinstates a complainant to his former position "or
makes him a bona fide offer of reinstatement." Polewsky v. B
& L Lines, Inc., 90-STA-21 (May 29, 1991). Accordingly, I
find that Red Label's liability for back pay ended on March 1,
1995, when Mulanax's received Red Label's written offer of
reinstatement.
[43]
In this regard, it is noted that Red Label did produce a February
22, 1995 safety report by the Federal Highway Administration
which indicates that Mulanax's employment as a driver prior to
his twenty-first birthday was in violation of the provisions of
49 C.F.R. §391.11(b). However, although this report was
marked as Respondent's Exhibit 41, it was not offered into
evidence, and no testimony was provided to indicate when this
report was either received or read by Red Label's management.
[44]
Indeed, the Supreme Court's decision in McKennon specially
noted that equitable considerations should be taken into account
when determining the appropriate relief in cases involving
unlawful discrimination. ___ U.S. at ___, 115 S.Ct. at 886. In
this regard, it is also noted that there are no grounds for
concluding that Mulanax in any way misled Red Label concerning
his true age. In fact, the evidence indicates that Red Label was
at all times aware of Mulanax's actual age, and that he was hired
as a driver only because Red Label did not know of the regulation
prohibiting the employment of drivers under age 21 or did not
care to obey it. See Tr. at 177-78 (testimony by Mulanax
that he disclosed his true age to Red Label at the time of his
employment).
