Date:  July 28, 1995 

Case No.  95-STA-28

In the Matter of:

RAY TANGUAY
          Complainant

              v.

WESTSIDE TRANSPORT, INC.
          Respondent                                              
                                                 

Appearances:

Ray Tanguay, In pro per
               Complainant

Roy A. Graham, Representative
               For the Respondent

Before:   ALFRED LINDEMAN
          Administrative Law Judge


                            DECISION AND ORDER 

     A hearing in this matter under section 405 of the Surface
Transportation Assistance Act of 1982 ("the Act"), 49 U.S.C.
§2301, et seq., 29 C.F.R. §§1978.106-1978.109, was
held in Monterey, California, on June 29, 1995, on complainant's
timely filed complaint and his objections to the Secretary of
Labor's findings, dated March 29, 1995, that "there were no actions
by the respondent which violated Section 405(a) or (b)." 

     The issues in dispute are whether complainant was fired by
respondent's field representative because of his refusal to drive
an assigned truckload of tomatoes and whether the operation of such
vehicle would have constituted "a violation of any Federal rules,
regulations, standards, or orders applicable to commercial motor 
[PAGE 2]
vehicle safety or health."  Complainant seeks back pay for the
period between his being fired by respondent and his obtaining a
new job; he does not seek reinstatement pursuant to section
405(c)(2) of the Act.

                          Findings of Fact

     It is uncontested that respondent, a commercial motor vehicle
carrier engaged in interstate and intrastate commerce, employed
complainant as a driver of commercial motor trucks within the
meaning of the Act.  Having started working for respondent on or
about July 25, 1994, complainant was dispatched to pick up a load
of tomatoes on August 6, 1994, at a field south of Firebaugh,
California, where he found that the trailer was overloaded with
tomatoes spilling over the edges.  Further, according to his
credible and uncontradicted testimony, he was concerned that unless
the load was rearranged he would be cited by the Highway Patrol as
he had been one week earlier, see CX 4-5; he thus spent 40
to 45 minutes rearranging one trailer load while a radio call was
made to the employer's "field representative," John,[1]  to get
help; then, by the time John got to the site complainant was very
upset[2]  and complained of chest pains, and when he explained his
concern about the overloads and his recent CHP encounter, John said
"if you're not going to cooperate, the company doesn't need you,"
or words to that effect, and told him to stop rearranging the load
of the second trailer which he had just begun.  Complainant then
walked to a telephone to call the respondent's dispatcher, who
asked if complainant needed medical attention, complainant said he
did not, and returned to the field, where he slept in the cab of
his truck until morning, at which time he drove it to the
respondent's Gilroy yard and, understanding from John's comments
that he had been discharged, he turned in the truck and all
appropriate paperwork.  Complainant also testified, without
contradiction, that when he telephoned the respondent's offices a
few days later to request that he be sent a State workers'
compensation claim form,[3]  he was not corrected when he mentioned
that he had been fired and "no longer worked for the company."  

     Complainant acknowledged that he knew he had been hired as a
"seasonal agricultural driver" and the respondent's safety
director, Kenneth Fry, testified that the tomato season runs from
about July 1st to late September, which results in a sharp drop in
the number of drivers in mid-September, and the likelihood that
complainant would not have been needed after that time.  Finally,
relevant to the issues at hand, complainant testified that his
earnings as a driver for the respondent averaged about $80 per day
and that he would have worked 7 days a week for the duration of the

[PAGE 3]
season.
     
                            Conclusions

     Section 405(b) of the Act provides in pertinent part:

          No person shall discharge . . . an employee .
          . . 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 . . . .

     Based on the totality of this record, I find that complainant
did not quit but rather he was discharged by the respondent's field
representative, John, because of complainant's refusal to drive the
trailer with overloaded tomatoes without adjustment.[4]   The
remaining question is whether the operation of the vehicle in such
condition would have constituted a violation of any Federal rule,
regulation, standard or order applicable to commercial motor
vehicle safety.  In my judgment, the operation of the vehicle in
the condition complainant refused to drive it would have
constituted a violation of both State law, as it evidently had when
he was cited for driving a truck with spilling tomatoes the week
before, see CX 4, and a Federal "Safe Loading" regulation at
29 C.F.R. §392.9(b), which requires drivers of trucks and
truck tractors to "examine the vehicle's cargo . . . and cause any
adjustments to be made to the cargo . . . as may be necessary to
maintain the security of the vehicle's load."  I conclude,
therefore, that complainant's termination in this case was a
violation of section 405(b) of the Act.  49 U.S.C. §2305(b);
see Yellow Freight System, Inc. v. Martin, 954 F.2d 353 (6th
Cir. 1992).

     Finally, based on the record that complainant, if he had not
been discharged on August 6, 1994, would have worked for the
employer for about five more weeks until mid-September, and that he
would have earned $560 per week (i.e.,  $80/day x 7
days/week), I conclude that the respondent is to pay complainant
compensatory damages in the amount of $2,800.00.  49 U.S.C.
§2305(c)(2)(B). 

     SO ORDERED.




                                                               
           
                                        ALFRED LINDEMAN
                                        Administrative Law Judge

San Francisco, California


[ENDNOTES]
                
[1]   No one at the hearing was able to recall John's last name; however, the employer's
representative, Mr. Graham, acknowledged that John was, as of that time, still employed by the
respondent, and that he was not called to testify to rebut complainant's account of the events in
question because it was not thought to be necessary.  TR 24-30, 101-102.  

[2]   Complainant was also upset about some difficulty uncoupling the trailer from the tractor and
an apparent mix-up in dispatch orders.  See CX 2.

[3]   Evidently, the workers' compensation claim, which is still pending, is based on the
exertional requirements of the events of August 6th.

[4]   I note that following the hearing, a copy of a letter, dated July 20, 1995, addressed to
complainant from Mr. Graham, containing the full name and address of the field representative,
John Alvarez, was received in this office on July 24, 1995.  The letter reflects that Alvarez
"resigned from employment with Westside Transport Inc. on 07-14-95" and that "at the time of
the hearing June 29, 1995, he was employed by Westside Transport Inc. in the Three Rocks, CA
area."  This information thus confirms that an adverse inference must be drawn from respondent's
election not to call him to testify to rebut complainant's version of events.