A. The Complainant's Testimony and Supporting Documentary Evidence

   At the hearing, the Complainant relied on his March 7, 2001 correspondence as the evidence supporting his complaint. TR 19-20. In that statement, the Complainant alleges that he was unlawfully discharged because he told the Respondent that he would not drive the Respondent's trucks unless they were repaired and inspected because he felt that the vehicles were in a state of disrepair so that continued operation would present a hazard to both himself and the public at large. The Complainant further stated that he was a member of Local 98 of the International Union of Operating Engineers, AFL-CIO (the Union) and that the Respondent repeatedly assigned him to perform manual labor in violation of the applicable collective bargaining agreement. The Complainant also alleges that the Respondent retaliated against him after he expressed safety concerns by giving him a grade of "fair" on his November 1999 performance report. ALJX 14.

   Upon cross-examination by the Respondent, the Complainant testified that he had worked for the Respondent from October 7, 1999 to December 7, 1999. He acknowledged that prior to starting work, he had discussed what the job would entail and that he became aware that his job duties would include manual labor. TR 26-27. He further testified that within a few weeks of starting his employment with the Respondent and becoming aware that he would be required to perform manual labor, he asked his Union business agent to reassign him to another job. TR 28-29. The Claimant testified that he was an apprentice operating engineer during the period of his employment with the Respondent, and he did not obtain a license to operate hoisting equipment until December 14, 1999, after his employment was terminated. TR 31; CX 7. As an apprentice, the Complainant testified that he could only operate some of the machinery on the Respondent's job sites. TR 44-48.

   The Complainant also testified that he repeatedly informed the Respondent of the unsafe condition of vehicles, particularly Truck 5 (TR5), a Chevrolet C-series, one ton flatbed truck, which, according to the Complainant, had an expired inspection sticker, a flat rear inner tire on the left side, an engine that would continue running after it was shut off, and a faulty emergency break. TR 29-35, 68, 70.

   The Claimant testified that on December 6, 1999, when Nicholas Langone asked him to back up TR5 so that it could be loaded, he told Langone that he would not operate the truck until it was repaired and officially inspected. TR 69, 71-72. This was the first time that the Complainant refused to operate one of the Respondent's trucks. TR 70-71. The Complainant testified that he was fired the following day, December 7, 1999, at which time Langone informed him that the Respondent would not allow an employee decide "what they're going to drive and what they're not." TR 81.

   B. Testimony of Nicholas Langone

   At the hearing, Mr. Langone read from a statement that he had submitted during the OSHA investigation of the Complainant's allegations. TR 95-99; EX 3. Mr. Langone testified that during the last week in September 1999 he contacted Douglas Richards, a Union business agent, because he wanted to hire a few operators to work on horizontal directional drilling projects. TR 95. Horizontal directional drilling is a "trenchless" method of installing pipe or cable. The process involves drilling a pilot bore by means of a remote control device which guides the drill head. After the pilot bore is drilled, a cutter device is used to simultaneously enlarge the diameter of the bore and pull the pipe or cable through the bore. TR 103-104. Due to the scarcity of operators experienced with horizontal directional drilling equipment, Mr. Langone agreed to hire two apprentice operators, the Complainant and Michael Duquette, to train under his own crew until they were sufficiently experienced to operate independently. TR 95-96. Mr. Langone testified that prior to hiring the apprentice operators, he called Complainant and Mr. Duquette on the telephone and explained that the positions for which they had been hired are very labor-intensive, that they would not just be operating machinery and that they would be expected to do their own shoveling and jack-hammering work as there would not be a laborer on the job. According to Mr. Langone, the Complainant and Mr. Duquette both agreed and were enthusiastic about starting work. TR 96.

   Mr. Langone further testified that he supervised the training of the crew during the first few days of the Complainant's employment. Mr. Langone stated that after the Complainant's initial training was completed, he made spot checks of the job sites and had daily progress meetings with his foreman, Todd Chamberlain, who informed him that the Complainant "had a tendency to disappear when any physical labor was going on." TR 96-97. Mr. Langone testified that although he had reiterated to both apprentices that they were expected to perform manual labor, he continued to receive reports from the foreman regarding the Complainant's lack of effort. He stated that he again contacted Mr. Richards, the Union's business agent, and asked if the Union he had any other operators available because he felt that the Complainant was not working out. Mr. Richards told him that he would look into it, and Mr. Langone decided to keep the Complainant on the job in the interim. After not hearing back from the Union, Mr. Langone testified that called Mr. Richards a second time to inform him that he wanted to make a move as quickly as possible because the overall morale of the crew was dropping, and production was lagging. Mr. Langone stated that he was informed by Mr. Richards during this second conversation that the Complainant had also contacted the Union, asking to be placed elsewhere. TR 97.

   Mr. Langone continued that shortly after this second conversation with Mr. Richards, he directly supervised the Complainant on a new project in Ridgefield, Connecticut and "reached wits end with Mr. Gonzalez and his lack of teamwork" which led him

to decide to terminate the Complainant's performance on December 6, 1999. TR 97. Mr. Langone described his decision and the communication of that decision to the Complainant as follows:

I planned on finishing up the job with Mr. Gonzales, and terminating him on the 7th of December when he returned. This did not happen due to how late he and the other apprentice finished up on that Monday.

When he came into work on Tuesday the 7th, I asked to have a word with him. We took a walk away from the rest of the crews who were preparing their trucks. Before I could get a word in he explained to me that TR5 had a problem with the clutch slipping on the way home from the job that Friday. He then told me that he deemed all of my trucks unsafe and that he would not drive them. Out of curiosity I asked "aside from the clutch, why is this truck unsafe?" He stated that there was no flares, triangles, or a first aid kit. I then proceeded to lift forward the seat to show him that all of these things were present, and that if there is a problem with the clutch, the normal procedure is to notify my mechanic. I also stated that if it was so bad then why did he not take the truck out of service, instead of making it back to the shop. Obviously I was insulted even more by this than the lack of work that I received from him. It was then that I carried out what I originally intended to do by stepping aside with him. So at approximately 7:30 a.m., Edwin Gonzales was terminated as an employee with Langone.

TR 98. On cross-examination by the Complainant, Mr. Langone testified that he and Mr. Duquette were forced to perform a majority of the manual work on this last project which caused him to decide to terminate the employment the Complainant. He also testified that after Mr. Chamberlain was moved to another job, the production of the Complainant and Mr. Duquette "lagged", though he did not have a problem with Mr. Duquette's performance. TR 124-125. Mr. Langone acknowledged that he had never approached the Complainant directly about his performance, but he explained that he expressed his dissatisfaction with the Complainant's performance to Mr. Richards on at least four or five occasions and was told that the Union did not have anybody to replace the Complainant. TR 126-128. After the Claimant was terminated, the Union sent the Respondent another apprentice, George Romano, who replaced the Complainant on the horizontal directional drilling crew on December 8 or 9, 1999. TR 119-120.

   C. Testimony of Michael Duquette

   Mr. Duquette testified that the Complainant excelled at running the locator on the drilling rig but had difficulty with the more physical aspects of the job such as operating a jackhammer and shoveling. TR 146. He also testified that he had spoken to Mr. Langone about a possible replacement for the Complainant prior to the Complainant's termination, and he agreed that he is more productive with George Romano on the crew than he was when he worked with the Complainant. TR 147-148. Although he testified on cross-examination by the Complainant that he felt that the Complainant made an honest effort, he considered the Complainant's performance to be "fair" and less than the job required:

A. I would say it was fair. I would also say maybe I don't know if the proper word is more physical conditioning

Q. Okay.

A. where you could do a little shoveling or something like that, it could have got better and probably fit the job a little bit more. I don't know if you had any kind of physical training. I don't know your background or what, you know, how much you could lift before your back is sore or whatnot, but the job definitely required more than you could do, and probably could have done more if the condition was better, I would say. But for what I've seen, you know, you seem to be an honest guy. You seem to do what you could do, you know, which made me do a little bit more in some aspects, but that was fine for me. I didn't mind. I could use the workout. I could use a few pounds knocked off.

TR 160-161. Mr. Duquette also corroborated the Complainant's testimony concerning some of the reported defects with TR5. He testified that the inspection sticker had expired at one point, that the exhaust pipe "blew off" and that clutch occasionally slipped on hills. TR 156-157. Mr. Duquette worked for the Respondent until January 2000 when he and Mr. Romano were laid off due to the weather. In March 2000, he went to work for another contractor where he is currently employed. TR 151-152, 162-163.

   D. Testimony of Douglas Richards

   Mr. Richards testified that he is employed as a business agent by Local 98 of the International Union of Operating Engineers which has approximately 1,200 members and covers all of Vermont, western Massachusetts and five counties in New Hampshire. TR 169-171. He testified that he was the Complainant's business agent while he was employed at the Respondent, and he stated that the Complainant contacted him almost immediately after beginning work at the Respondent to express his unhappiness with the working conditions and equipment and to request a reassignment. TR 170-171. Mr. Richards also testified that he had

been asked by Mr. Langone on more than one occasion to find a replacement for the Complainant. He stated that he initially told Mr. Langone that he did not have another apprentice available at that time and that Mr. Langone made it clear to him that he wanted to replace the Complainant as soon as possible. TR 165-166. Mr. Richards recalled that Mr. Langone complained to him about the Complainant's performance and, specifically, that the Complainant was unwilling to get dirty and help out by doing what is necessary to get the job done. TR 178. He also stated that he was told that although the Complainant did part of the job well, there were other parts where he could have helped out more and that "maybe he wasn't cut out for that type of work." TR 180. Mr. Richards testified that he spoke to Mr. Langone after the Complainant was terminated by the Respondent and that Mr. Langone stated that the Complainant "wasn't working out with the job and he refused to run the equipment, the trucks." TR 181.

   A. Analytical Framework

   The STAA prohibits the discharge of, or discipline or discrimination against, an employee in the commercial motor transportation industry because the employee either files a complaint or initiates or testifies in a proceeding related to a violation of a commercial motor vehicle safety regulation, standard, or order, or because the employee refuses to operate a vehicle in certain circumstances:

(1) A person may not discharge an employee or discipline or discriminate against an employee regarding pay, terms, or privileges of employment because
(A) the employee, or another person at the employee's request, has filed a complaint or begun a proceeding related to a violation of a commercial motor vehicle safety regulation, standard, or order, or has testified or will testify in such a proceeding; or
(B) the employee refuses to operate a vehicle because
(i) the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety or health; or
(ii) the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle's unsafe condition.

49 U.S.C. §31105(a). The elements of a violation of the STAA's employee protection provisions are that the employee engaged in protected activity, that the employee was subjected to adverse employment action, and that there is a causal connection between the protected activity and the adverse action. BSP Trans., Inc. v. United States Dep't Labor, 160 F.3d 38, 45 (1st Cir. 1998); Clean Harbors Environmental Services, Inc. v. Herman, 146 F.3d 12, 21 (1st Cir. 1998) (Clean Harbors). A complainant initially may show that protected activity likely motivated the adverse action by proving: (1) that he engaged in protected activity; (2) that the respondent was aware of the activity; (3) that he suffered adverse employment action;

and (4) the existence of a causal link or nexus, e.g., that the adverse action followed the protected activity so closely in time as to justify an inference of retaliatory motive. Shannon v. Consolidated Freightways, USDOL/OALJ Reporter (HTML), ARB No. 98-051, OALJ No. 1996-STA-15 at 5-6 (ARB April 15, 1998); Kahn v. United States Secretary of Labor, 64 F.3d 261, 277 (7th Cir. 1995). An employer may rebut this prima facie showing by articulating a legitimate, non-discriminatory reason for taking the adverse action, and the complainant must then prove that the employer's proffered reason was not the true reason for the adverse action and that protected activity was the real reason for the action. Shute v. Silver Eagle Co., USDOL/OALJ Reporter (HTML), ARB No. 97-060, OALJ No. 1996-STA-19 at 1-2 (ARB June 11, 1997); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 146-47 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-508 (1993).

   B. Protected Activity

of the refusal to drive compels the conclusion that the driver's perception of an unsafe condition was reasonable. Yellow Freight System v. Reich, 38 F.3d 76, 82-83 (2nd Cir. 1994); Jackson v. Protein Express, USDOL/OALJ Reporter (HTML), ARB No. 98-104, 1995-STA-38 at 2-3 (ARB January 9, 1997). In view of Mr. Langone's candid admission that the clutch on TR5 was "blown" on December 7, 1999 and that the vehicle was taken out of service as of that date, I find that the Complainant's refusal to drive on December 7, 1999 was reasonable and, therefore, protected by subsection (a)(1)(B)(ii).

   C. Awareness of the Protected Activity, Adverse Action and Causal Connection

   There is no dispute that the Respondent was aware of the Complainant's protected activity and that the Complainant was subjected to an adverse employment action when he was terminated on December 7, 1999. The fact that the Complainant's protected activity was followed immediately by the Respondent's announcement of its decision to terminate his employment alone would be enough to support an inference of a causal connection between the two. Bergeron v. Aulenback Transportation, Inc., USDOL/OALJ Reporter (HTML), OALJ No. 1991-STA-38 at 2 (Sec'y June 4, 1992); Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989). The inference of a causal connection is further supported by the uncontradicted testimony from the Claimant that Mr. Langone referred to the Complainant's refusal to drive when he told the Complainant that he was being terminated and by the uncontradicted testimony from Mr. Richards, the Union business agent, that Mr. Langone told him that the Claimant was terminated because he wasn't working out and because he refused to drive the Respondent's trucks. Based on the close proximity of the Complainant's protected activity to the date of his termination, and Mr. Langone's statements connecting the Complainant's termination to his protected refusal to drive TR5, I find that the Complainant has met his burden of establishing that the Respondent's termination decision was, at least in part, motivated by retaliatory considerations.

   D. Respondent's Legitimate, Nondiscriminatory Reasons for Termination

   Because the Complainant has met his burden of proving that his termination was, at least in part, motivated by his protected activity under the STAA, the burden of persuasion shifts to the Respondent to demonstrate that it would have terminated the Complainant even if he had not engaged in the protected activity. Pogue v. U.S. Dep't of Labor, 940 F.2d 1287, 1289-1290 (9th Cir. 1991) (dual motive test set forth in Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274 (1977), applies where it was "undisputed" that complainant engaged in protected activity and "that this was a motive for disciplinary action"); Passaic Valley Sewerage v. United States Dep't of Labor, 992 F.2d 474, 481 (3 rd Cir. 1993), cert. denied, 510 U.S. 964 (1993); Mackowiak v. Univ. Nuclear Sys., Inc., 735 F.2d 1159, 1163-1164 (9th Cir. 1984). Mr. Langone, the Respondent's job superintendent, testified that after the Complainant began working on the horizontal directional drilling crew, he determined that the Complainant was not cut out