DATE: January 12, 1996
CASE NUMBER 95-STA-43
In the Matter of
GALE COOK,
COMPLAINANT,
v.
GUARDIAN LUBRICANTS, INC.,
RESPONDENT.
Appearances
Gale W. Cook, ProSe
P.O. Box 88432
Tukwila, Washington 98055
For the Complainant
Jeff and Carol Guddat, ProSe
P.O. Box 1044
Renton, Washington 98057
For the Respondent
RECOMMENDED DECISION AND ORDER
This proceeding arises under the provisions of Section 405
of the Surface Transportation Assistance Act, 49 U.S.C.
§31105 (hereinafter referred to as "the Act" or "the
STAA").[1] A formal hearing was held in Seattle, Washington, on
October 17, 1995. The Complainant appeared prose,
and Guardian Lubricants, Inc., was represented by Jeff Guddat,
who at that time was the company's general manager. Tr. at 64-
65. Testimony was received from both of these
individuals and the following exhibits were admitted into
evidence: Complainant's Exhibits ("CX") 1 and 2; Respondent's
Exhibits ("RX") 1 and 2; and Administrative Law Judge Exhibit
("ALJX") 1. As well, official notice was taken of the Federal
highway safety regulations set forth at 49 C.F.R. Parts 383, 387,
390-99.
During the October 17 hearing it was represented by Jeff
Guddat that he has no personal knowledge of the facts in dispute
and that the only person at Guardian Lubricants who does have
such knowledge is his father, Carol Guddat. He further indicated
[PAGE 2]
that Carol Guddat had been on an out-of-state vacation when the
original hearing notice was issued and had not yet returned to
Seattle. Tr. at 68-69. Accordingly, after the completion of the
hearing the record was re-opened and a supplemental hearing was
scheduled to receive the testimony of Carol Guddat, as well as
any rebuttal evidence that the Complainant might offer.[2]
During the supplemental hearing, which was held in Seattle on
December 4, 1995, both Carol Guddat and the Complainant
testified. In addition, the Respondent introduced into evidence
a copy of a magazine article, which has been marked as
Respondent's Exhibit 3.
BACKGROUND
The Respondent, Guardian Lubricants, Inc. ("Guardian"), is a
small family business that is operated by members of the Guddat
family and one non-family employee. Tr. at 65, 93. Among other
things, Guardian provides trucks (i.e., truck tractors) with
drivers to various common carriers that are engaged in hauling
containers and empty chassis between various points around the
Port of Seattle. Tr. at 15, 64, 94. According to Carol Guddat,
Guardian currently owns a total of six trucks, only three of
which are in use. Tr. at 121.
The Complainant, Gale Cook, began working as a driver for
Guardian on March 13, 1994. RX 2. Under the written agreement
between the Complainant and Guardian, the Complainant was
assigned a 1977 Freightline tractor belonging to Guardian and
promised that he would be paid a percentage of the revenues on
each shipment he hauled at such time as the revenues for the
shipments were received by Guardian. Id. The agreement
also characterized the Complainant as "an independent contractor"
and expressly stated that from time to time either Guardian or
other companies might provide him shipments. Id.
However, the agreement also specified that "[i]t shall be the
duty and responsibility of the contractor [i.e., the Complainant]
to procure and schedule loads to keep the truck as busy as
possible ...." Id. According to the Complainant, after
signing the contract and taking possession of the truck, he
reported several safety-related problems with the truck to Carol
Guddat which were eventually corrected. Tr. at 49-50, 165.
As contemplated in the Complainant's contract with Guardian,
around the middle of March, 1994 the Complainant began hauling
shipments tendered by four different companies which had on-going
arrangements with Guardian to have their shipments transported by
Guardian-owned trucks. Tr. at 16-17, 112-13. Initially,
however, most of the shipments were offered by a company known as
[PAGE 3]
Conex, which routinely needed to have containers hauled to
various Seattle-area piers from a local Burlington Northern
railroad yard and from Conex's own Seattle-area terminal. Tr. at
18, 30-31. According to the Complainant, during the summer of
1994 he complained "a couple of times" to Carol Guddat that some
of the shipments he was being given by Conex were overweight,
i.e., exceeded the 80,000-pound Federal maximum by 5,000 to
10,000 pounds. Tr. at 24-25, 27, 36. It is the Complainant's
recollection that Mr. Guddat was not particularly concerned about
the complaints and simply replied that the Complainant should
"'turn them down, haul 'em, or quit.'" Tr. at 25. The
Complainant further testified that Mr. Guddat did not object when
the Complainant told him that he preferred to pick up the Conex
shipments originating at the Burlington Northern railroad yard
because most of the overweight Conex shipments were coming from
Conex's Seattle-area terminal. Tr. at 32-33. During the
supplemental hearing Carol Guddat agreed that the Complainant had
complained to him about receiving overweight containers from
Conex and represented that he told the Complainant that under his
contract he had to decide for himself whether to haul containers
that he considered to be overweight. Tr. at 101-02. In
addition, Mr. Guddat acknowledged that the Complainant had also
made safety-related complaints to him about the number of hours
Conex expected him to work and indicated that, in response, he
told the Complainant that he should make his own decisions about
the number of hours he drove. Tr. at 105-06.
According to the Complainant, on October 14, 1994, he picked
up a "couple of" refrigerated containers at the Conex terminal
that were found to be overweight when later weighed at the
waterfront in Seattle. Tr. at 34-36. The following morning, he
recalls, he returned to the Conex terminal, at which time the
general manager of Conex, Tony Stafford, asked him why another
refrigerated container that was still at the terminal had not yet
been delivered. Tr. at 34, 36-37. In response, the Complainant
testified, he told Stafford that the containers he delivered the
prior day had been overweight and asserted that the remaining
container was also overweight.[3] Tr. at 37. Stafford then
allegedly told the Complainant to deliver the container anyway,
and the Complainant began to walk away so that he could call
Carol Guddat for advice. Id. As he was walking away, the
Complainant asserts, Stafford said, "'You're fired. You're done,
Gale.'" Tr. at 37-38. Thereafter, the Complainant testified, he
left Guardian's truck in a lot on Harbor Island where it was
usually parked, and waited about five days before notifying Carol
Guddat. Tr. at 39-40. According to the Complainant, he did not
contact Carol Guddat any sooner because he was "shocked" as a
[PAGE 4]
result of being "fired" by Stafford. Tr. at 157.
Carol Guddat testified that he first became aware of Conex's
refusal to do business with the Complainant when he picked up
some papers from Conex about five or six days later, and admits
that at that time Mr. Stafford told him that the decision was
based in part on the Complainant's refusal to haul allegedly
overweight containers from the Conex terminal. Tr. at 106-07,
145. Mr. Guddat also testified, however, that Mr. Stafford had
asserted that on at least one occasion the Complainant had failed
to appear for four or five days in a row and that the Complainant
had been undependable in various other ways.[4] Tr. at 108-09.
Mr. Guddat further testified that he was "dismayed" by the fact
that Guardian's truck had been sitting idle for four or five days
before he even learned of Conex's refusal to give any more
shipments to the Complainant. Tr. at 113. In this regard, he
explained that Guardian incurs about $30 in out-of-pocket
expenses for each of its trucks every day and therefore needs to
keep the trucks in service as much as possible. Tr. at 110. Mr.
Guddat also noted that the Complainant had repeatedly refused to
drive substitute trucks on the days when Guardian was servicing
his assigned truck, and that, as a result, he came to believe
that the Complainant wanted to work only some of the time and
"didn't need to work." Tr. at 111, 125. The Complainant
acknowledges that he refused to drive substitute trucks but
asserts that his agreement with Guardian didn't contemplate that
he would drive any vehicles other than the one assigned to him.
Tr. at 163-64.
According to the Complainant, when he did inform Carol
Guddat about what had happened at Conex, Mr. Guddat suggested
that he start hauling shipments for another Guardian client,
Seattle Freight. Tr. at 40, 151-52. Carol Guddat concurs with
this representation, but points out that it was the Complainant
who made the first contact with Seattle Freight about such an
arrangement. Tr. at 112, 126, 146. As a result, during the
third week of October the Complainant began hauling shipments for
Seattle Freight. Tr. at 40-41. However, the Complainant
asserts, the shipments he received from Seattle Freight generally
consisted of unloaded chassis or empty containers and therefore
did not generate as much income as the loaded containers he had
been hauling for Conex. Tr. at 42. The Complainant does not
recall if any of the shipments he was given by Seattle Freight
were overweight or otherwise in violation of any laws. Tr. at
43.
There are several material conflicts in the evidence
[PAGE 5]
concerning the events that occurred next.
According to the Complainant, on November 10, 1994 he called
the dispatcher at Seattle Freight and told him that he was sick
and would not be picking up shipments that day. Tr. at 43-44,
78. As well, the Complainant also thinks he told the dispatcher
that he would not be back until the following Monday. Tr. at 44.
It is the Complainant's recollection that when he went to pick up
the truck the following Monday morning (November 14), the truck
was not in the lot on Harbor Island where he had parked it, and
that he therefore called Carol Guddat on the telephone. Tr. at
20, 45, 79, 148. The Complainant testified that during the
telephone conversation Mr. Guddat indicated that he had taken the
truck and told the Complainant to return the truck's keys and
cellular phone. Tr. at 20, 45-46. As well, the Complainant
testified, Mr. Guddat complained that the truck hadn't been
utilized over the weekend and explained that the truck had to be
in use "every day" because it was costing Guardian money every
day. Tr. at 46, 48. The Complainant also testified that he
believes he told Mr. Guddat that he had been sick, but that Mr.
Guddat did not respond to that representation. Tr. at 48-49.
The Complainant further testified that he "believe[s]" that this
conversation occurred on Monday, November 14, but acknowledged
that it may have taken place on Tuesday, November 15. Tr. at
169.
During cross-examination, the Complainant acknowledged that
during the first part of November he had not received the
payments he had expected for the work he had done for Seattle
Freight and had called Carol Guddat to complain about the delays.
Tr. at 73-74. According to the Complainant, he was told that
Seattle Freight was slow in paying Guardian for those shipments,
but didn't fully understand what Mr. Guddat said. Tr. at 74-75.
During the supplemental hearing, the Complainant further
testified that he believes this conversation occurred about a
week before he discovered that Carol Guddat had taken back the
Guardian truck. Tr. at 156-57. The Complainant also indicated
that he expected to be paid each Friday, even if Seattle Freight
had not yet paid Guardian, and that the Friday he told Seattle
Freight he was sick was "maybe" the second Friday he had failed
to receive an expected payment for such work. Tr. at 75-77, 81-
84, 157. The Complainant acknowledges that during his
conversation with Carol Guddat he remarked that he couldn't be
expected to work without pay. Tr. at 160-62, 167. However, he
denies threatening to quit driving if not paid or being told by
Mr. Guddat to either drive or turn in the truck keys. Tr. at 76-
78, 162, 167-70. The Complainant also denies that any
[PAGE 6]
relationship exists between the delay in receiving his pay and
his failure to operate the truck after November 9 or 10. Tr. at
77-78.
Carol Guddat's version of the November events differs in a
number of details. According to Mr. Guddat, on Thursday,
November 10, the Complainant spoke with him on the telephone and
asked that his paycheck be sent to him in the mail. Tr. at 116.
Thereafter, Mr. Guddat testified, he received two telephone calls
from the Complainant. During the first call, which was on the
following Saturday, the Complainant allegedly complained that he
had not yet received the check. Tr. at 116. During the second
call, which Mr. Guddat recalls was placed to his home at 7:30
a.m. on Monday, November 14, the Complainant again complained
that he had not yet received the check and said that he wouldn't
drive until he received it. Tr. at 116-17, 130. In response,
Mr. Guddat testified, he told the Complainant to either drive the
truck or return the keys. Tr. at 117. On the morning of next
day, Mr. Guddat testified, he observed that Guardian's truck was
parked at the location on Harbor Island where it was customarily
stored and therefore concluded that the Complainant was refusing
to work. Tr. at 117, 129. As a result, Mr. Guddat asserted, he
moved the truck back to Guardian's office. Tr. at 117.
According to Mr. Guddat, he did not receive any telephone calls
from the Complainant after removing the truck from Harbor Island.
Tr. at 122. He did recall, however, that at some later time the
Complainant visited Guardian's office and discussed with him the
possibility of purchasing the truck from Guardian. Tr. at 123.
Mr. Guddat also testified that not long after he removed the
truck from Harbor Island, the Complainant mailed the truck's keys
and cellular phone to Guardian's office. Tr. at 159, 180, 182-
83.
According to Mr. Guddat, the Complainant's safety-related
complaints played no part in his decision to retrieve the truck
from Harbor Island. Tr. at 191, 193. As well, he represents
that he was simply getting tired of the Complainant's refusals to
work and indicated that, in his view, the Complainant's refusal
to continue to driving was tantamount to voluntarily quitting his
job. Tr. at 125-26. He also represents that if he had not found
Guardian's truck parked on Harbor Island on November 15, the
Complainant might still be driving for Guardian. Tr. at 129.
Mr. Guddat concedes that the Complainant never explicitly said
that he was quitting and that the payments for the Complainant's
work for Seattle Freight had been delayed. Tr. at 121, 130, 171-
72. He explained, however, that the delay was due to a normal
lag in Seattle Freight's payments to Guardian. Tr. at 171-72.
[PAGE 7]
Mr. Guddat also represents that he was subsequently unable to
find another driver for the truck and that he elected not to re-
license the truck at the end of 1994. Tr. at 114, 120. He also
testified that the truck was sold in the summer of 1995. Tr. at
120.
The Complainant did not file a complaint with the Department
of Labor concerning his termination by Conex or Guardian until
May 6, 1995. ALJX 1. According to the Complainant, he did not
file the complaint earlier because he was unaware of his rights
under the STAA until he received a May 3, 1995 letter from a
Federal Highway Administration ("FHA") official in response to an
April 27, 1995 letter he sent to the FHA concerning overweight
vehicles.[5] Tr. at 58, 60. After being discharged by
Guardian, the Complainant received unemployment benefits for
about a month and then worked for another trucking company for
about two months. Tr. at 61. Sometime after that job ended, he
began working for Kidimula International, Inc., where he also
claims that he was fired due to a refusal to haul overweight
containers.[6]
ANALYSIS
Although the Complainant's written agreement with Guardian
described the Complainant as an independent contractor, it is
clear that the Complainant was an "employee" as that term is
defined in the STAA, i.e., that the Complainant was a driver of a
commercial motor vehicle whose work duties directly affected
commercial motor vehicle safety. See 49 U.S.C.
§31101(2)(explicitly defining the term "employee" to include
independent contractors who personally operate commercial motor
vehicles). Likewise, it is also clear that Guardian is a
"person" as that term is defined in the Act. Hence, the only
issue in dispute is whether the Complainant was discharged or
otherwise discriminated against because he made safety-related
complaints or refused to drive for safety-related reasons.
See 49 U.S.C. §31105.
The legal standard for determining if there has been a
violation of the STAA is well established. In particular, an
employee must initially present a prima facie 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 employee. In addition, as part
of the prima facie case the employee must present evidence
sufficient to raise the inference that his or her protected
activity was the likely reason for the adverse action. If the
[PAGE 8]
employee establishes a prima facie 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 the employer
successfully rebuts the employee's prima facie case, the employee
still has the opportunity to demonstrate that the proferred
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 proferred
explanation is unworthy of credence. In either case, the
factfinder may then conclude that the employer's proferred reason
is a pretext and rule that the employee has proved actionable
retaliation for the protected activity. Conversely, the trier of
fact may conclude that the employer 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
employer to show by a preponderance of the evidence that it would
have taken the same action with respect to the employee, even in
the absence of the employee's protected conduct. SeeDarty v. Zack Company, 80-ERA-2 (April 25, 1983);
McGavock v. Elbar, Inc., 86-STA-5 (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, 181 n. 6 (11th Cir. 1987).
A. Evidence of a Prima Facie Case
As noted above, in order to establish a prima facie case a
complainant must establish: (1) that he or she engaged in
protected activity, (2) that the respondent knew of the protected
activity, (3) that the respondent took adverse action against him
or her, and (4) an inference that the protected activity was a
likely reason for the adverse action. For the reasons set forth
below, I find that in this case the Complainant has satisfied
each of these requirements.
1. Participation in Protected Activity
There are three distinct types of protected activities under
[PAGE 9]
the provisions of the STAA: (1) safety-related complaints
(either internal or external), (2) refusals to operate a vehicle
when the operation of the vehicle would in fact violate Federal
safety standards, and (3) refusals to operate a vehicle if (a) an
employee has a "reasonable apprehension of serious injury to
himself or the public" because of the unsafe condition of the
vehicle and (b) the employee has unsuccessfully attempted to have
his employer correct the unsafe condition. 49 C.F.R.
§31105(a)(1).
In this case, the evidence indicates that the Complainant
made several complaints to Carol Guddat about being given
overweight shipments and about the number of hours he had been
driving for Conex.[7] As well, the record also indicates that
the Complainant made internal safety-related complaints
concerning the mechanical condition of his truck. All of these
complaints clearly constitute protected activities. SeeDoyle v. Rich Transport, Inc., 93-STA-17 (April 1, 1994).
Hence, the Complainant has met the first requirement for
establishing a prima facie case.[8]
2. Respondent's Knowledge of the Protected Activity
It is well established that before any respondent can be
held liable for taking an adverse action against an employee, the
employee must show that at the time of the adverse action the
respondent was aware that the employee had engaged in some sort
of protected activity. Greathouse v. Greyhound Lines,
Inc., 92-STA-18 (Dec 15, 1992). In this case, the evidence
shows that Carol Guddat was aware of the Complainant's various
safety-related complaints as well as the Complainant's refusal to
transport allegedly overweight containers. Hence, the
Complainant has also satisfied the second requirement for
establishing a prima facie case.
3. Adverse Action
The third element of a prima facie case is proof of an
adverse action against a complainant. In this regard, the
evidence indicates that Carol Guddat in effect "fired" the
Complainant when he retrieved Guardian's truck from Harbor
Island. Accordingly, I find that the Complainant has established
the third element of a prima facie case.
4. Inference that a Protected Activity was a Likely Reason
for the Adverse Action.
[PAGE 10]
In order to establish the final element of a prima facie
case, a complainant must show that the evidence is sufficient to
support an inference that the protected activity was the likely
reason for the adverse action. Among other things, proximity in
time between the protected activity and the adverse action can
support such an inference. SeeMoravec v. HC & M
Transportation, Inc., 90-STA-44 (Jan. 6, 1992). In this
case, the evidence shows that the Complainant's protected
activities occurred within a few months prior to his termination
by Guardian. Accordingly, there is enough evidence to support an
inference that there was a causal relationship between the
Complainant's protected activity and the adverse action against
him. Thus, the Complainant has established all four elements of
a prima facie case.
B. Evidence of Lawful Motives
Since all of the prerequisites of a prima facie case have
been established, Guardian has the burden of producing evidence
that the adverse action against the Complainant was based on
lawful motives. However, this burden can be met by merely
introducing evidence which, if believed by the trier of fact,
would support a finding that unlawful discrimination was not the
cause of the employment action, even if such evidence is not
ultimately credited by the finder of fact. St. Mary's Honor
Center v. Hicks, ____U.S.____, 113 S.Ct. 2742 (1993);
Anderson v. Jonick & Co., Inc., 93-STA-6 (September 29,
1993). If such evidence is introduced, the presumption of
discrimination created by the prima facie case is rebutted and
the overall burden of proving illegal discrimination by a
preponderance of the evidence remains on the complainant.
Id.
In this case, the Respondent has offered evidence indicating
that the adverse action against the Complainant was the result of
the Complainant's refusal to continue driving until such time as
he received payments which he believed to be overdue. In
particular, Carol Guddat testified that he retrieved Guardian's
truck from Harbor Island because the Complainant had explicitly
threatened to stop driving and then left the truck sitting idle
when it should have been in service. Moreover, the Complainant
in effect admitted that essentially this same explanation was
given to him by Mr. Guddat when he allegedly spoke to Mr. Guddat
after finding that the truck was gone. In view of this evidence,
I find that the presumption created by the Complainant's prima
facie case has been rebutted and that the burden of proving
illegal discrimination still remains on the Complainant.
Accordingly, it is necessary to weigh all of the relevant
evidence in order to determine whether the termination of the
[PAGE 11]
Complainant's employment did in fact violate the STAA.
C. Conclusions
On balance, the Complainant has not shown by a preponderance
of the evidence that his termination was even partially motivated
by a desire to punish him for his protected activities. There
are several reasons for this conclusion.
First, although it is clear that the Complainant did make
some complaints about overweight containers and other safety-
related matters and that these complaints might have indirectly
had some adverse impact on Guardian's revenues (e.g., caused the
loss of some revenue from Conex), the evidence does not indicate
that Carol Guddat was particularly hostile to such complaints.
For example, the evidence shows that when the Complainant made
complaints about overweight containers Mr. Guddat merely reminded
the Complainant that under his contract with Guardian compliance
with safety requirements was his own responsibility and that he
had to decide for himself whether to haul containers that he
suspected of being overweight. Likewise, the record shows that
even after the Complainant was precluded from hauling shipments
for Conex, Carol Guddat chose to suggest another source of work
for the Complainant, rather than simply terminating Guardian's
contract with the Complainant on the grounds that there was a
lack of work.
Second, the evidence indicates that Guardian had legitimate
reasons for being dissatisfied with the Complainant's
performance. For instance, as previously noted, the record shows
that after being "fired" at Conex the Complainant inexplicably
let Guardian's truck sit idle for almost a whole week before
informing Guardian that he needed another source of shipments.
Similarly, the Complainant's refusal to drive substitute trucks
while his assigned truck was being serviced also suggests that
the Complainant was not strongly motivated to work.
Finally, and most importantly, it appears more likely than
not that Carol Guddat sincerely believed that the Complainant was
unjustifiably refusing to haul shipments for Seattle Freight
because of the delays in receiving payment for such work.
Although the Complainant has disputed Carol Guddat's testimony
that the Complainant said he would stop hauling for Seattle
Freight until he received the allegedly overdue payments, Mr.
Guddat's testimony on this and related issues is more credible.
In this regard, it is noted that the Complainant admits that he
told Carol Guddat that he couldn't be expected to keep driving if
he wasn't going to be paid and that the Friday he stopped hauling
[PAGE 12]
shipments for Seattle Freight was "maybe" the second Friday he
had failed to receive an expected payment. As well, the evidence
also indicates that the Complainant was likely to have been
particularly upset by the perceived delays because he mistakenly
thought that he was entitled to be paid weekly even though his
contract with Guardian clearly provided that he would not be paid
until Guardian received payment from Seattle Freight. Moreover,
although there is a conflict in the evidence concerning the exact
days the Complainant failed to haul any shipments for Seattle
Freight, it is clear that at some point in time the Complainant
did in fact temporarily stop hauling such shipments and thereby
gave Guardian reason to believe that he was refusing to work
until he received the allegedly overdue payments.
RECOMMENDED ORDER
For the reasons set forth above, it is recommended that the
complaint of Gale W. Cook against Guardian Lubricants, Inc.,
under Section 405 of the Surface Transportation Assistance Act be
dismissed.
_____________________________
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. Pursuant to the
provisions of 29 C.F.R. §1978.109(c)(2) the parties may file
briefs with the Office of Administrative Appeals supporting or
opposing this Recommended Decision and Order within 30 days of
its issuance, unless the Secretary establishes a different
briefing schedule.
[ENDNOTES]
[1]
The STAA was enacted for the purpose of promoting safety on the
nation's highways, and, among other things, prohibits any person
from discharging or otherwise discriminating against an employee
in retaliation for having engaged in certain safety-related
activities. The Department of Labor regulations implementing the
STAA are set forth at 29 C.F.R. §1978.
[2]
On November 4, 1995, the Complainant objected to having such a
supplemental hearing and sent a copy of his letter of objection
to the Federal Bureau of Investigation. The Complainant also
reiterated this objection at the outset of the supplemental
hearing.
[3]
In this regard, the Complainant concedes that it is ordinarily
not possible to know if a container is overweight until it is
weighed at the point of delivery, but contends that in his
experience approximately 75 percent of the containers he picked
up at the Conex terminal turned out to be overweight. Tr. at 27,
32.
[4]
The Complainant, however, denies missing any work at Conex prior
to being "fired" by Mr. Stafford. Tr. at 81, 163, 167-68.
[5]
In this regard, it is noted that although the Complainant's
initial complaint to the Department of Labor also indirectly
accused Conex of violating the STAA, no complaint was filed with
any government agency (including the FHA) until more than 180
days after October 14, 1994--the day he was "fired" by Conex.
Accordingly, any claim against Conex is barred by the 180-day
limitations period set forth at 49 U.S.C. §31105(b).
However, since the complaint was mailed to the Department of
Labor within 180 days after the termination of the Complainant's
employment by Guardian, the claim against Guardian is timely.
[6]
A hearing concerning the Complainant's STAA claim against
Kidimula International was held in Seattle on October 16, 1995,
and a Recommended Decision and Order rejecting that claim was
issued on November 21, 1995.
[7]
The provisions of the Department of Transportation's Motor
Carrier Safety Regulations, 49 C.F.R. §§390-99, do not
contain any maximum weight limitations. However, the provisions
of 23 U.S.C. §127 generally prohibit the operation of
vehicles having a gross weight of more than 80,000 pounds on
interstate highways. It is assumed that this provision was
designed to both protect the highways from damage attributable to
overloaded vehicles and promote safety. Accordingly, I find that
complaints about overweight vehicles are a type of activity
protected under the provisions of the STAA. SeeGalvin
v. Munson Transportation, Inc., 91-STA-41 (August 31, 1992)
(decision assuming that a refusal to drive an overweight vehicle
is a protected activity under the STAA).
[8]
In this regard it is noted that the Complainant's refusal to
transport allegedly overweight containers could also qualify as a
protected activity if the transportation of such containers would
have violated Federal safety standards or created a "reasonable
apprehension of serious injury." However, in this case the
Complainant has provided little convincing evidence to show that
any container he refused to haul was actually overweight. In
fact, the only evidence concerning the weight of such containers
is the Complainant's assertion that two specific containers given
to him by Conex had later been found to be overweight and his
impression that approximately 75 percent of the containers he
picked up at the Conex terminal were overweight. I find that
such evidence, by itself, is not sufficient to establish a
violation of Federal safety standards or to show that there was a
"reasonable apprehension of serious injury." Indeed, under the
rules of evidence applicable to this proceeding and to
proceedings in the Federal courts, such evidence ordinarily would
not even be admissible for the purpose of proving that containers
that the Complainant refused were in fact overloaded.
See 29 C.F.R. §18.404(b) (rule of evidence precluding
the admission of evidence of past "crimes, wrongs or acts" by a
person in order to prove the person's character and thereby
circumstantially establish that the person committed a similar
alleged crime, wrong or act). SeealsoRobinson v. Duff Truck Line, Inc., 86-STA-3 (March 6,
1987); Brame v. Consolidated Freightways, 90-STA-20 (June
17, 1990).
