...................
In the Matter of: :
:
JOSEPH A. CAIMANO : Date Issued: September 7, 1995
Complainant :
: Case No.: 95-STA-4
v. :
:
BRINK'S INC. :
Respondent :
..................:
Ted E. Karatinos, Esq.
For Complainant
Herbert I. Meyer, Esq.
For Respondent
Before: JOHN C. HOLMES
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This matter arises under the Surface Transportation Act of
1982 (the "Act"), 49 U.S.C. §2305. After due notice and
granting of a continuance for each party, a hearing was held in
Clearwater, Florida on January 26 and 27, 1995. My Decision and
Order is based upon the entire record.
Complainant, Joseph A. Caimano was employed as a messenger
for respondent, Brink's Inc. As such his job was to deliver
money and/or other secured items to respondent's customers; he
rode in the back section of armored cars. On the morning of
April 21, 1994 he was discharged by respondent after he refused
to go out on his run. The next day, Mr. Caimano filed a
complaint with the Occupational Safety and Health Administration.
After investigation, the Regional Administrator for the U.S.
Department of Labor on September 30, 1994 dismissed the
complaint.
Discussion: Jurisdiction
Section 405 of the STAA was enacted in 1983. This
legislation is intended to promote safety of the highways by
protecting employees from disciplinary action because of an
employee's engagement in protected activity. Section 405(b)
provides as follows:
[PAGE 2]
No person shall discharge, discipline, or in any manner
discriminate against an employee with respect to the
employee's compensation, terms, conditions, or
privileges of employment for refusing to operate a
vehicle when such operation constitutes a violation of
any Federal rules, regulations, standards, or orders
applicable to commercial motor vehicle safety or
health, or because of the employee's reasonable
apprehension of serious injury to himself or the public
due to the unsafe condition of such equipment. The
unsafe conditions causing the employee's apprehension
of injury must be of such nature that a reasonable
person, under the circumstances then confronting the
employee, would conclude that there is a bona fide
danger of an accident, injury, or serious impairment of
health, resulting from the unsafe condition. In order
to qualify for protection under this subsection, the
employee must have sought from his employer, and have
been unable to obtain, correction of the unsafe
condition. 49 U.S.C. §2305 (b) (1983).
The Regional Administrator found, and it is not disputed
that Brink's is engaged in commercial vehicle operations and
operates commercial vehicles that are engaged in interstate
commerce, thus coming under the definition of an employer covered
under the Act.
An "employee" is a driver of a commercial motor vehicle, a
mechanic, a freight handler, or any individual other than an
employer "who is employed by a motor carrier and who in the
course of his employment directly affects commercial vehicle
safety." 49 U.S.C. app. §2301 (2); 29 C.F.R. 1978. 101(d).
In my view, Complainant does not come under the definition
of an employee under the Act. A thorough research of cases
brought under the Act, reveals only two were brought by other
than truck drivers; both mechanics. In the leading cause
of Gay v. Burlington Motor Carriers, 92-STA-5
(1992), the Secretary of Labor found the lead mechanic an
employee under the Act, since his work in repairing trucks
directly affected the safety of a motor carrier. Moreover,
"mechanic" is specifically named by definition as an employee.
Absent being named in the definition, i.e. driver, mechanic or
freight handler, one employed by a motor carrier, I believe,
should have to positively demonstrate that his employment
directly affected motor vehicle safety, and that
[PAGE 3]
absent such nexus, the individual would be presumed to not
be a covered employee. (See, Foley v. J.C. Maxwell, Inc. 95-
STA-11 (Sec'y July 3, 1995).
However, since the issue of covered employee was not
presented by either party and for other reasons including the
interests of both parties in having other issues resolved, I will
address the matter as if arguendo Complainant is an
employee under the Act.
The provisions of the Act provides employee protection when
a refusal to operate a motor vehicle constitutes a violation of
any Federal rules, regulations, standards or orders applicable to
commercial motor vehicle safety or because of the
employee's reasonable apprehension of serious injury to himself
or the public due to the unsafe conditions of such equipment. 49
U.S.C. 2305 (b).
Covered Activity
Neither party has cited cases, nor does my research reveal
any complaints brought under the Act against a security company
such as Brink's. While the legislative history indicates and the
Act specifically states its concern is with commercial motor
vehicle safety such as interstate motor carrier and public
transportation operations, there would be little dispute that
Brink's operation, is covered. [1] However, the activity
covered by the Act is safety in the operations of the
vehicle. Even if we assume, however, that Complainant was an
employee, his conduct must constitute covered activity.
The express purpose of the Act is the safe operation
of vehicles and not the protection of all individuals that happen
to be employed by a motor carrier. Thus, for example, an office
worker for an interstate motor carrier company should not come
under the Act in protesting that a file cabinet was unsafe.
Since the Act is specific in its goals of safety while the
vehicle is in operation, absent compelling evidence, I would
strictly limit those covered.
Complainant has given no credible arguments that Brink's
violated any Federal rules, regulations or standards applicable
to commercial motor vehicle safety (the "when" clause).[2] He
bases his arguments on the proposition that he was reasonably
apprehensive of serious injury to himself because of the
unsafe condition of such equipment (the "because" clause).
The issue of whether Complainant engaged in protected
[PAGE 4]
activity is important to Brink's and similarly situated concerns.
Brink's does not contend, nor would I find, that a complaint
concerning safety of the operation of the vehicle by the
driver would not be covered by the Act. Absent specific
language to the contrary, I would find the messenger is not
covered by the Act concerning problems that might give him
apprehension of serious injury to himself that did not
arise from unsafe condition of the vehicle. Thus, for example,
whether or not Complainant should have discretionary or mandatory
authority to wear a gun, and/or to wear a bullet-proof vest, are
matters involved in the employer/employee relationship and not
subject to the provisions of the Act. Absent extenuating and
very unusual circumstances, I would require the messenger in this
unique type case, to first complain to the driver of the subject
vehicle of safety concerns, in order for his activities to be
covered.[3] There is nothing in the job requirement of the
messenger to indicate that he would have first hand knowledge and
expertise in the area of vehicle safety. The operation of the
vehicle is, after all, the province of the driver and is the
subject of the Act. Whether or not the operation of a motor
carrier provides adequate protection against outside
interference, such as robbery, is beyond the scope of the Act.
I would find for Brink's on this narrow basis. However, a
larger discussion of the facts of this case follows since the
issue addressed is unique, and since a determination should be
made as to whether the facts support Complainant's contentions
concerning the "because" clause.
Findings of Facts
The parties do not disagree on the basic facts of this case.
On September 16, 1991, Joe Caimano began working for Brink's Inc.
as a part-time "driver" in Tampa, Florida. Each Brink's driver
operates an assigned armored car, which is identified by number.
Aside from the driver, the only other person riding in an armored
car is called a "messenger." A messenger rides in the rear
compartment of the armored car with the valuables, and delivers
those valuables by hand to customer checkpoints along a planned
daily route. During his tenure with Brink's, Joe Caimano worked
both as a driver and as a messenger.
Before hiring Joe Caimano, Brink's put him through a
training program. During that program, Brink's emphasized the
safe operation of its armored cars.
On April 21, 1994, Complainant was assigned to his usual job
[PAGE 5]
as a messenger in armored car #201, the oldest vehicle amongst
Brink's Tampa, Florida Branch. Brink's vehicles are routed on
daily runs to customer locations according to predetermined
routes and time schedules. The schedules for each of the drivers
and messengers and the runs to which they are assigned are
prepared by the Route Supervisor, usually on a weekly basis. (T-
601-610;299, 320; R#11). During the period April, 1993 to April
1994, Complainant's usual or "regular" driver was Charles A.
(Chuck) Jones. However, there were numerous occasions when the
two were assigned to different routes. (T-80,135, 657-658).
Since it was the oldest and smallest vehicle, Truck #201 was
assigned, primarily to the last runs of the day, and most often
on Tuesdays or Thursdays. On April 21, 1994, Mr. Caimano was
assigned to a relatively inexperienced driver Mario Rodriguez.
Mr. Caimano refused to go on his assigned run; his employment was
terminated that morning. The circumstances surrounding his
refusal to run his assigned route and his termination are in some
dispute, and are a source of this controversy. Mr. Caimano
alleges he was terminated for expressing safety considerations.
Respondent denies the allegations and contends Mr. Caimano was
fired for insubordination.
Testimony
Mr. Caimano testified that car #201 had numerous things
wrong. It didn't have portable radios; base radio; charger for
radios; or gun ports in the interior wall. It had fumes through
holes in the floor, (T-84) and the electric door locks didn't
work. Brink's had "speak outs" where employees could voice
complaints. Mr. Caimano could only attend 2 or 3 of the
scheduled monthly meetings because of conflict with his duties.
The minutes from the March 8, 1994 "speak-out" did not contain
Mr. Caimano's concern over money for eating during long days.
Mr. Caimano opined that Brink's head mechanic, Tony Paloo, was
competent in determining whether a truck was safe or not
mechanically, but Mr. Caimano didn't have knowledge
of a messenger's concerns such as radios doors, locks, etc. (T-
108-115). Mr. Caimano had previously complained to Mr. Billy
Creamer, in Brink's "vault management" as to the condition of
Truck #201, particularly his concern of no radios when a new
driver was on the job. Mr. Caimano was under the impression that
he would not be assigned the vehicle without improvements being
made. However, on April 21, the vehicle was assigned and with a
new driver, Bombo Rivera, who was unfamiliar with the run. Mr.
Caimano complained to Mr. Creamer who referred him to Mr.
Espinosa, the vault supervisor who then checked out the portable
[PAGE 6]
radios and none were working. Mr. Espinosa then called Mr. Terry
Dawson on the phone. When Mr. Caimano was put on the phone, Mr.
Dawson was screaming and yelling and demanding he go on the run
or he would be fired. Mr. Caimano asked to talk to Mr. Doug
Ellison who before listening to him, fired him. (T-119-123); 356-
375). He believed his firing was at least partially in
retaliation for his complaints at the April 21, "speak out." (T-
335-341). He had gone out many times with Chuck Jones in
Truck #201 without radios. (T-408). He had been given a previous
warning at one time when he stopped to buy film while on the job,
(T-416-419; E#8) as well as several other written warnings for
wrong delivery and failure to deliver a package. (T-466-68).
Billie Creamer was a cashier at time of Complainant's
termination. Complainant told him the truck was unsafe because
it had no radios. He left the building after turning the matter
over to his supervisor David Espinosa. No driver had ever
refused a truck because of no radio. (T-476-80).
David Espinosa testified that he had been employed with
Brink's for 9 years, as a vault supervisor since March, 1994.
Complainant complained about no two-way radio and door locks. He
talked with his supervisor, Mr. Dawson, who told him of the
options, getting a radio from Mr. Gene Kelly's office, or picking
up a radio from one of the messengers at a bank not too far away.
On the previous day, April 20, 1994, the base radio was working,
the electric door locks were working and they had two portable
radios. (T-491) Mr. Threats was assigned as driver to truck #201
on April 21, 1994. Truck #201 was one of the last assigned and
was not used every day. Mr. Caimano complained a lot. (T-495-
97). Mr. Espinosa considered Mr. Caimano a friend and was
saddened to have to convey Mr. Dawson's orders to terminate him.
However, Mr. Espinosa felt the refusal to take the truck out was
unreasonable; Mr. Espinosa was willing to replace Mr. Caimano on
the run if a usual replacement could not be found (T-497-99).
Mr. Terry Dawson testified that he received a call from
David Espinosa on April 20, 1994 on his car phone explaining
Complainant's refusal to go on the run. He then talked to
Complainant and offered him a hand-held radio from Gene Kelly's
office, that was fully charged, and they could later get a radio
from one of the other drivers. Mr. Dawson, also, offered to have
the scheduled driver, Bombo Rivera, substituted for, since
Complainant felt he didn't know the run. When Complainant still
refused to go on the run, he called his supervisor, Mr. Ellison,
at complainant's request. (T-504-515). The run was completed
with John Threats as driver and Bernie Conner as messenger. (T-
[PAGE 7]
516;E#12). Mr. Dawson had hired Complainant but found him to be
a difficult employee; he was "nit-picking". (T-562-63). Mr.
Dawson several times thought of suspending Complainant; they got
under each other's skin. (T-573). Complainant complained more
than other employees`, including about other trucks than #201.
(T-583)
Doug Ellison testified that he is general manager for
Brink's in the area that included Tampa, and was Mr. Dawson's
immediate supervisor. He had ultimate responsibility for whether
or not an employee was wrongfully terminated. (T-589-91) He took
pride in running a safe, efficient operation. Telephones had
been installed relatively recently, and new technology was
constantly being looked into. Refusal to go on a run was reason
for dismissal, but an appeal could be made "up the line" by
Brink's policy. Complainant had been warned several times about
refusing to go out on runs. (T-603-622). Mr. Ellison actually
made accommodations to have Complainant on the later L-3 run,
since Mr. Caimano had an elderly mother who sometimes required
attention in the morning. (T-625-26). Mr. Ellison was so mad "he
couldn't see straight" when Mr. Caimano was told April 21 that
Complainant was not going out on the run. He fired Complainant
on the spot over the phone without an explanation. Complainant
knew that a big account, First Union, was to be serviced for the
first time that day. (T-634-36). Mr. Ellison liked Joe, but he
fired him because no matter what accommodation they tried to
make, he was not going out on the run. On reflection, Mr.
Ellison thought he made the right decision. (T-650-53).
Charles A. Jones testified that he was hired October, 1993
by Brink's as a driver. He worked virtually every day with
Complainant. During the time he drove Truck #201 it had only one
incident where a base radio was used. (T-656-58) The truck was a
good running one; he had no complaints, but Complainant did
complain about no radio and sometimes exhaust fumes. (T-660-61).
He felt Mr. Caimano's fear of the company putting him in danger
was paranoia. (T-663). Mr. Caimano was the only messenger he was
aware of at Brink's who felt his life was in danger. Truck #201
ran well, but some driver's didn't like the stick shift and the
fact it was old. (T-676)
Chris Colina testified that he was a mechanic for Brink's
currently and in April 1994. The trucks would always be repaired
off the driver's forms if there was a problem. No truck would
leave that was unsafe. (T-680-690).
Gene Kelly testified that he is currently Assistant Branch
[PAGE 8]
Manager at Brink's. He never led Complainant to believe that
Complainant would never be assigned to Truck #201. There is some
natural tension between the drivers and messengers in the truck
and the inside vault people; roughly safety and profits. (T-690-
696). Complainant was probably paranoic about safety. (T-697).
Minutes of the March 9, 1994, "speak-out" reported by Terry
Dawson, show Complainant asked questions concerning smoking
policy, reimbursement for CDL as well as exhaust fumes. In
answer to Complainant's question of procedure if a driver or
messenger feels a truck is unsafe, Mr. Dawson stated that the
mechanic will inspect the vehicle; if he finds it safe it will go
on the road, if not, he will fix the problem or hold the truck
(C#12).
Edward Thompson, a former Brink's part-time driver testified
that he was concerned that car #201 did not have a base radio to
communicate with the home base, nor a portable radio or gun
ports. (T-127-130). The messenger is the supervisor in the
armored cars at Brink's. (T-136). He was fired on the day after
Complainant; he took out a separate truck which, also, didn't
have air-conditioning and had exhaust fumes which made him
uncomfortable, resulting in his taking his clothes off down to
his underwear. (T-137-140) He complained about the air-
conditioning not working. Mario Rodriguez was the messenger on
the day before Mr. Caimano was fired, and road up front for
awhile. Mr. Thompson felt his own firing was justified. (T-140-
200).
Phillip R. Barrett, III, testified that as a messenger he
would not fill out a form 111 for complaints of the vehicle, but
only as a driver (T-221). He found management at Brink's to be
intimidating so far as complaints were concerned. At least one
of the trucks had fumes that leaked into the truck. His
complaints of no radios in the truck would go unanswered. He was
fired in December, 1993, after two years with the company. There
is some tension between the drivers and the inside or "vault"
management personnel at Brink's. Low pay and high risks results
in high turnover at Brink's (T-262-269).
Mario Rodriguez testified that he was a driver for Truck
#201 for about a year. Mr. Caimano reported safety concerns at
the speak-out about the radios and door locks and the fuel smell.
(T-285). Mr. Rodriquez worked for Brink's about 5 years.
Mechanics usually fix a truck when requested. Truck #201 was a
"spare" used only when others weren't available. (T-301) Some
drivers refused #201 because it was standard shift; nobody wanted
[PAGE 9]
it because it wasn't comfortable, but nobody to his knowledge
refused it because of safety concerns. (T-303). He offered to
trade truck #282 with Mr. Caimano (T-311). No robberies have
occurred during the five year period he has been with Brink's in
Tampa; he can recall incidents where a radio was used for
reporting suspicious characters only once or twice. (T-321-22).
Various drivers' vehicle condition reports concerning Truck
#201 were entered into evidence. No defects were found on April
6 and 8 and 12 and 28 that would affect safety of operation. On
April 14, power steering fluids were requested. Mr. Threats,
after the run on April 21, 1994, remarked that air conditioning
needs to be fixed; left front signal doesn't work sometimes;
brakes stiffen up.
Conclusions
As stated, supra, I find that the activities of a
messenger on a Brink's truck are generally not covered by the Act
so far as they relate to personal safety from outside
interference as opposed to potential injury from the
operation of the vehicle. I find nothing in the
Complainant's case to conclude that Complainant would be exempt
from this general rule by specifics of this case. However, I
here conclude that even assuming Complainant's allegations of
unsafe conditions are covered activities, he has not carried his
burden of demonstrating that he should be successful in his
prosecution. This is primarily because his apprehension of
serious injury to himself or the public is not reasonable and,
also, because the alleged unsafe conditions were not proved to be
such. In addressing these issues it is perhaps useful to discuss
the items alleged unsafe by Complainant, which were, no: 1. base
radio; 2. portable radio; 3. radio charger; 4. electric door
locks; 5. interior gunports; 6. protection from exhaust fumes.
To my mind, perhaps the most serious allegation so far as
protection of the driver and messenger is the alleged lack of a
serviceable radio. Testimony indicated that other security
companies had a less comprehensive radio system than Brink's.
Moreover, technology is constantly changing so that improved
methods and better radios can be installed. What may be
considered adequate at one time may be insufficient only a short
time later. For parallel example, real estate agents only 20
years ago did not have access to car telephones; today few do
without them, feeling it to be competitively, a necessity. A
base radio is useful in an emergency to alert the home office of
the conditions causing it. I am not convinced, however, that it
[PAGE 10]
is a necessity. Brink's had installed serviceable phones in all
its trucks. The fact that when one was not working at a
particular time would not appear to be reason to refuse to make a
one day run. In that connection, while the business of security
at Brink's is inherently dangerous, I credit the testimony of
Mario Rodriguez that in approximately five years of employment,
no robberies occurred from the Tampa operation, and on only one
or two occasions was base radio used to report suspicious
circumstances. Thus, I find that Complainant's apprehension on
this issue was not reasonable.
Further Respondent was not only not negligent, but
acted responsibly in attempting to remedy the situation. I find
the safety system at Brink's, whereby drivers reported daily on
any truck defects, and 3 mechanics worked to remedy the defects,
to be a commendatory process. Brink's depends on safety and has
demonstrated it by their program. There was no evidence that
prior to the day in question, April 21, 1994, Brink's had any
knowledge that the base radio was not operable. Moreover, as
discussed below, Brink's made reasonable efforts to find
alternative methods of communications. Additionally, while not
conclusively established beyond a doubt at the hearing, the
testimony indicates strongly that Complainant was offered an
opportunity to have a more experienced driver substituted, since
one of his apprehensions was that the assigned driver didn't know
the route.
Portable radios are usually considered a back-up system to
the base radio, but, also, useful when the messengers are making
a delivery. Again the item does not appear a necessity to the
safety of the driver and messenger, although it is useful.
Respondent made efforts, to provide Complainant with a portable
radio including from Mr.Creamer's office. While knowing
Respondent was anxious to get the truck on the road, Complainant
refused a reasonable alternative. I find again, that
Complainant's apprehension was not reasonable and that Respondent
made adequate attempts to remedy the situation even assuming
arguendo that Complainant's request was reasonable.
Complainant alleges that there were no electric door locks
on Truck #201. On the other hand, Mr. Espinosa testified that
the electric door locks were working. Mr. Threat, who ended up
driving the truck on the day in question, though listing several
complaints, did not mention inoperable electric door locks.
There is serious question that Complainant even raised the issue
of electric door locks before taking the truck out. Under these
circumstances, and based on the record intoto,
assuming arguendo[PAGE 11]
electric door locks were necessary for safety, I find that
Respondent did not know or have reasonable cause to know that the
locks at the time were alleged to be inoperable.
The lack of a gunport in the truck, perhaps made the vehicle
slightly more vulnerable to a "gang" robbery attack than other
vehicles. There is no indication in the record that other
Brink's employees found this to be adequate and sufficient reason
to refuse to take the vehicle out or that they complained about
this aspect of the truck, either in submitting vehicle reports or
at the fairly frequent "speak-outs" held by Respondent.
Importantly, even assuming arguendo the matter was
actionable, there is no indication that Respondent was aware that
employees considered this a safety hazard, nor that Complainant
specifically objected at the time in question. In that
connection, a vague former expression of such a complaint, would
not be sufficient to alert Respondent through its employees, that
Complainant refused the truck on April 21, for this reason.
Finally, a problem of exhaust fumes, even, if true, would be
a matter of convenience rather than safety absent a finding of
threat to serious health not present in this case. Again,
Complainant's alleged vague reference at the time to fumes is an
insufficient basis for refusing to go on the run. Truck #201 had
been operated for years without the alleged problem with fumes
being of sufficient magnitude to warrant complaints by other
messengers. Corroborating evidence was scanty and not fully
credible in the case of Ed Thompson. As in the other
allegations, Respondent did not have a sound basis for
recognizing this was a serious problem.
I thus find that none of the specific allegations made by
Complainant were of a serious enough nature to warrant a refusal
to take the truck out based on safety, even as defined by
Complainant. Moreover, while not necessary to my
conclusions as set out supra, as a general matter
Complainant has not demonstrated that he had a
reasonable apprehension of serious injury and, therefore,
has not established a necessary element of a prima facie
case. Moreover, respondent did attempt reasonably to remedy any
alleged defects, a factor that distinguishes this case from most
or all of those cited by Complainant, wherein respondents refused
alternative safety measures. A discussion of the factual basis
for my findings on these issues is appropriate.
The security business requires that safety of the
merchandise, in most cases money or its equivalent, be
maintained, indeed it is the primary ingredient of the business.
[PAGE 12]
Corporations that use Brink's do so to protect the physical
moving of money. In turn, the hauling of cash, whether as
messenger or driver involves an inherently present, but
realistically remote possibility of outside violent interference.
Trucks must be maintained in good condition; the driver and
messenger must be alert to the remote possibility of robbery and
take appropriate protection. From testimony and the record in
general, I conclude that Brink's took at least the precautions of
its competitors, and would appear to be significantly more
security conscious. Complainant cites no specific regulatory or
precedent requiring a higher standard.
The work of a messenger requires, a significant amount of
merely sitting in cramped quarters, alone, with little to do or
see. The pay both for messenger and driver is relatively low,
$6.00-$9.00 per hour. Turnover in the business is high. There
may be tension between the people in the office (vault people)
and those outside in the trucks for a number of obvious reasons.
Complainant appeared to me to be a conscientious but overly
fastitidious and defensive individual. He was described as "nit-
picky"; some would use the vernacular "worry wart".
Truck #201, alleged by Complainant to be unsafe, was the
oldest of the trucks in the Tampa branch office, and was used for
usually the last run of the day, and not every day. The main
complaint by drivers was that it was a stick-shift rather than
automatic. Additionally the air-conditioning was frequently non-
operable causing discomfort in warm Tampa. Company records show
routine repairs were made on the truck at varying intervals. I
find, however that the truck was not unsafe, generally, so far as
both operation and protection of employees, and specifically
during the date in question, April 21, 1994.
I find favorably to Complainant that in his own mind, he had
a concern for safety, mainly his own anxiety of possible personal
injury from outside interferences, i.e. a potential robbery.
However, that concern was neither reasonable under the
circumstances of this case, nor was it adequately conveyed to
Respondent. Complainant was revealing in his testimony,
suggesting that only he had the last determination on safety.
For example he stated: "I felt like the only one who could
determine if a truck was safe for me to work in would be me." (T-
116).
Nor do I find a meaningful relationship between
Complainant's complaints at the "speak-out" and his termination.
[PAGE 13]
In addition to alleged safety concerns, Complainant complained
about smoking in the trucks and reimbursement for expenditures at
the March 9, 1994 "speak-out". Thus Complainant's motivations
for complaints were generally directed at least as much toward
personal convenience as they were toward safety.
Complainant did demonstrate concern by his report of
termination to the Occupational Safety and Health Administration
the day after the termination. Again, however, while this
perhaps supports Complainant's internalized safety concerns, it
does not cause his apprehension to be reasonable nor indicate
true concerns were adequately expressed to Respondents. A case
can be made just as strongly, that Complainant's presentation of
his case was a reconstructed scenario to highlight his safety
complaints, when in actual fact he was merely a somewhat
disgruntled overly complaining individual.
Respondent subsequent to the termination investigated the
incident "all the way up the line." While such action in itself
does not justify a wrongful termination, it does demonstrate
respondent's concern for making a proper decision. Rather than
contest this case, a simple expedient would be for Respondent to
rehire Complainant. Moreover, Respondent made good, reasonable
efforts to comply with Complainant's concerns. Complainant's
vague complaints made over a period of time, were not a
justification for an immediate refusal that required quick
action. Justice Oliver Wendell Holmes, once wrote "... detached
reflection cannot be demanded in the presence of an uplifted
knife." While nothing so serious is here involved, Respondent
cannot be expected to exhaust all remedies, nor have all its
employees exhibit perfect composure in dealing with, in its eyes,
an emergency situation due entirely to Claimant's refusal to make
the run. In so finding, I give little significance to Employer's
repeated reference to the importance of a new, significant
client, First Union, as a basis for either their motivations or
actions. If Respondent was so concerned with the account, why
did they leave it for the last run, on the oldest truck with an
admittedly fussy employee as messenger?
I conclude that Respondent's termination was done solely on
the basis of Complainant's insubordination. Even assuming a
"dual motive" was initially present, i.e. that Respondent knew
that Complainant had a legitimate safety concern, I would find
that Respondent's attempts to remedy the situation were adequate
to eliminate that concern, leaving Complainant with only an
unjustified refusal to perform his function as an employee.
ORDER
Complainant's application for relief under the Surface
Transportation Act is denied.
______________________________
JOHN C. HOLMES
Administrative Law Judge
Date Issued:
Washington,DC
JCH/mlc
[ENDNOTES]
[1] The vehicle in question was over 10,000 pounds gross weight
and was used as a commercial motor vehicle. 49 U.S.C. 2301(2)(A).
[2] In its post-hearing brief, Complainant acknowledges no
violation under the "when" clause.
[3] A case could be conjured up, where a messenger might know of
a serious safety defect, and, also, know complaining to the
driver would be fruitless since the driver was either a reckless
individual or intimidated by his Employer, and would not,
therefore, complain to his Employer of legitimate safety
concerns.
