Edwin Gonzalez, Springfield, Massachusetts, pro se
Nicholas Langone, Russell, Massachusetts and
Ellis Langone, Agawam, Massachusetts, for the Respondent
Before: Daniel F. Sutton
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
I. Statement of the Case
This case arises from a complaint filed by Edwin Gonzalez (the Complainant) against Langone Pipeline & Utility Contracting Division (the Respondent) under the employee protection provisions of section 405 of the Surface Transportation Assistance Act of 1982 (the STAA), 49 U.S.C. §31105, and the implementing regulations at 29 C.F.R. Part 1978. Section 405 of the STAA protects a covered employee from discharge, discipline or discrimination because the employee has engaged in protected activity pertaining to commercial motor vehicle safety and health matters. The matter is before me on the Complainant's request for hearing and objection to findings issued on behalf of the Secretary of Labor by the Regional Administrator of the Department of Labor's Occupational Safety and Health Administration (OSHA) after investigation of the complaint. 49 U.S.C. §31105(b)(2)(A), 29 C.F.R. §1978.105.
1 The documentary evidence admitted to the record will be referred to as "ALJX" for jurisdictional and procedural documents admitted by the Administrative Law Judge, "CX" for documents offered by the Complainant, and "EX" for documents offered by the Respondent. References to the hearing transcript will be designated as "TR".
2 This matter was originally scheduled before Chief District Administrative Law Judge David W. Di Nardi, but was reassigned to me due to a scheduling conflict. ALJX 11.
3 Mr. Langone testified that he was not aware of any problem with TR5's brakes, and he denied that the vehicle had a flat tire on December 6, 1999 when the Complainant drove back from the Ridgefield job though he did admit that there previously had been a flat on TR5 which the Complainant and Mr. Duquette drove for about five days before it was repaired. TR 129-130.
4 In view of the fact that the Respondent has not argued that the Complainant's safety complaints are unprotected, I find the ARB's recent decision in Assistant Secretary and Bates v. West Bank Containers, USDOL/OALJ Reporter (HTML), ARB No. 99-055, OALJ No. 1998-STA-30 at (April 28, 2000) (discussing the analysis required where a respondent challenged OSHA's interpretation that section 31105(a)(1)(A) protects safety complaints as long as the employee has a reasonable belief that the condition violates a motor vehicle safety regulation) to be inapplicable.
5 I do note that there is a discrepancy between the Complainant's testimony that he told Mr. Langone on December 6, 1999 that he would not drive TR5 and Mr. Langone's account that this conversation took place on December 7, 1999. However, I do not find this discrepancy to be significant in light of the substantial and credible evidence that the Respondent had a legitimate, nondiscriminatory reason for terminating the Complainant and would have terminated him in the absence of any protected activity. That is, I find that it makes no material difference whether the Complainant's refusal to drive was communicated to Mr. Langone on December 6 or 7, 1999.