ARB CASE NO. 01-020
ALJ CASE NO. 99-STA-46
DATE: July 19, 2001
In the Matter of:
CHARLES L. DALTON,
COMPLAINANT,
v.
COPART, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Robert S. Coffey, Esq.,
Tulsa, Oklahoma
For the Respondent:
Steve Broussard, Esq., Monica Goodman, Esq., Hall, Estill, Hardwick, Gable, Golden & Nelson, Tulsa, Oklahoma
FINAL DECISION AND ORDER
Complainant Charles Dalton brought this action alleging that he was terminated as a truck driver for Respondent Copart, Inc. (Copart), in violation of the employee protection (whistleblower) provision of the Surface Transportation Assistance Act of 1982 (STAA), as amended, 49 U.S.C.A. §31105 (West 1997). The Occupational Safety and Health Administration investigated Dalton's complaint and found it to be without merit. Dalton objected to OSHA's findings and requested a hearing. Following that hearing a Department of Labor Administrative Law Judge (ALJ) issued a Recommended Decision and Order (RD&O), ruling that Dalton was terminated in violation of the STAA and ordering that he be reinstated. The case is before this Board pursuant to the automatic review provision of the STAA implementing regulations. 29 C.F.R. §1978.109(c)(1) (2000).
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Before this Board Copart challenges the RD&O. By separate motion, Copart also seeks emergency relief from the ALJ's order that Copart reinstate Dalton immediately. We reverse the ALJ's decision and dismiss the case; therefore Copart's motion is moot.
BACKGROUND
I. Facts.
Copart is in the business of auctioning wrecked vehicles on behalf of insurance companies. Copart hired Complainant Charles Dalton on January 11, 1999, to work out of its Tulsa, Oklahoma, facility as a "salvage hauler," picking up wrecked vehicles. Although Dalton had experience driving a conventional wrecker, he had no experience driving a large four-car hauler such as the one he drove for Copart. On March 4, 1999, less than two months after he was hired, Copart terminated Dalton's employment.
A. Dalton's Job and Truck. Dalton's job was to drive one of Copart's large haulers (which had the capacity to hold three wrecked vehicles on its decks while towing a fourth vehicle), load wrecked vehicles onto the hauler, return the vehicles to Copart's facility, and unload them. In order to load a vehicle onto the hauler, the driver operates controls at the side of the truck which raise and tilt the hauler deck by means of a hydraulic ram. From this same location, the driver also operates three different hydraulically-driven winches that are used to pull the wrecked vehicles into their respective positions on the hauler deck. The winches are located at the front of the hauler, in the center of the hauler, and towards the rear of the hauler. Each winch, which is capable of pulling 4,800 pounds of weight, is attached to a cable designed to hold up to 15,000 pounds of weight. The driver attaches the cable to the vehicle he is loading; tilts the deck of the hauler using the ram; and, using the winch attached to the cable, pulls the vehicle onto the deck where it is secured with three chains.
B. The Survey. On February 4, 1999, Jim Powell, Copart's National Fleet and Safety Manager, performed a routine inspection of Copart's trucks in Tulsa, including the one Dalton drove. Powell, who is a civil engineer, had previously spent five years designing trucks and equipment for the fleet of a large public utility. His responsibilities at Copart included overseeing the Copart fleet, consisting of several hundred trucks and other equipment, and ensuring the safety of its 1,600 employees. Powell rated the components of the truck and made handwritten comments on a form, captioned "Copart Auto Auctions Truck Survey." Respondent's Exhibit (RX) 5. The rating scale applied by Powell was printed on the form:
Rating: 3 = Meets Standard in ALL Areas; 2 = Generally Good, Needs Some Improvement; 1= Not Meeting Standards, Needs Immediate Attention; N/A = Not Applicable; R = Not Rated During the Inspection.
Id.
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Powell rated 21 components on Dalton's truck as "3," four components as "2," and 10 components as "1." Of significance in this case, Powell assigned a "2" rating to the item "Winch and Cables." In the "Action Needed" column, Powell wrote, "Add T latch to hooks/#3 winch replace cable." Dalton testified that he spoke with a member of Powell's survey team on the day of the inspection, and was aware of the items that needed attention on his truck.
Powell testified that a "1" rating did not necessarily mean that there was a safety hazard. If an item did relate to safety, Powell testified that he would rate it a "1" indicate on the form that it should be fixed immediately, and discuss the matter with the General Manager. After the survey team rated all the vehicles at Copart's Tulsa facility, Powell met with Tulsa Copart officials and discussed all of the surveys on Copart's trucks.
1 Dalton had complained to the survey team about the brakes on his truck, and for that reason Powell had given the brakes a "1" rating and told the Copart yard manager, Dan Cupp, that the brakes needed immediate attention. They were repaired later that day or the next morning before Dalton drove the truck again.
2 Copart sent trucks needing cable work to Industrial Splicing, a company specializing in cable installation, repair, and replacement.
3 Copart asserted that governors on Copart's vehicles were set at 62-64 mph, and that Dalton was responsible for having the governor on his truck reset to 75 mph without permission. Dalton denied having the governor reset. However, Copart officials did not learn about the reset governor until after Dalton was terminated. Therefore the governor could not have had a role in Dalton's termination.
4 We emphasize that there is directly contradictory testimony regarding the events of March 4. In particular, Dalton testified that he told his supervisors that day that he was refusing to drive his truck because of his concerns about the safety of the cable and the hydraulic leaks. Dalton's supervisors Cupp and Craig Gille on the other hand, testified that Dalton did not raise safety concerns until after he was terminated, and that Dalton in essence told them he had better things to do with his time than drive that afternoon. The ALJ largely credited Dalton's testimony and discredited Cupp's and Gille's. Because, as we discuss below, we determine that Dalton did not engage in a protected refusal to drive, we need not reappraise the ALJ's credibility determinations. Therefore, we relate the facts as the ALJ found them.
5 It is uncontroverted that Frontier did not replace cables. See n.2, supra. Thus, the fact that Frontier had not replaced the #3 winch cable could have come as no surprise to Dalton.
The administrative law judge's decision and order concerning whether the reinstatement of a discharged employee is appropriate shall be effective immediately upon receipt of the decision by the named person. All other portions of the judge's order are stayed pending review by the Secretary.
29 C.F.R. §1978.109(b) (2000).
7 The STAA also prohibits retaliation against an employee who refuses to operate a vehicle because "the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety or health . . . ." 49 U.S.C.A. §31105(a)(1)(B)(i). That provision is not implicated in this case.
8 Although pages 5-24 of the RD&O are denominated "Findings of Fact" those pages actually contain a summary of the testimonial and documentary evidence in the record, not findings. The ALJ's findings of fact are related in the section denominated "Conclusions of Law."
9 The ALJ did not differentiate between the hydraulic leaks on the winches and the hydraulic leak on the ram, and made no specific findings about the danger associated with an hydraulic leak on the ram.
10 Dalton admitted that he had been told prior to his refusal and termination that the cables were scheduled to be replaced on the sixth.