DATE: August 24, 1995
CASE NO.: 95-STA-33
In the Matter of:
FRANK E. SHOUP,
Complainant,
v.
KLOEPFER CONCRETE,
Respondent.
Appearances:
FRANK E. SHOUP
In Propria Persona
ALFRED E. BARRUS
For the Respondent
RECOMMENDED DECISION AND ORDER
This is a proceeding arising under Section 405 of the
Surface Transportation Assistance Act of 1982 (STAA or Act) (49
U.S.C. § 31105).
On April 3, 1995, Complainant Frank E. Shoup filed a
complaint against Respondent Kloepfer Concrete with the
Occupational Safety and Health Administration (OSHA) which
alleged that he had been fired because he refused to drive an
overloaded truck. On May 10, 1995, the OSHA Acting Regional
Administrator issued Secretary's Findings which determined that
after investigation, the complaint had no merit. Thereafter,
Complainant filed a timely request for a hearing on the record.
A hearing was held in this case on June 28, 1995 in Twin
Falls, Idaho. The record was kept open to permit the
reproduction of a tape recording which had been received in
evidence but not previously furnished to Respondent, and
Respondent was given seven days after its receipt to file
comments or objections to the contents of the recording.
Respondent's comments were filed on July 14, 1995. The
transcript was filed on July 28, 1995.
FACTS
Respondent is a corporation which supplies concrete. Steven
Straubhaar (Steve) is the Yard Supervisor and Batchman at its
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Twin Falls Plant. Steve's brother, Terry Straubhaar (Terry) is
the Manager of the Twin Falls Plant. Ernest Straubhaar (Ernest)
the father of Steve and Terry, is the Vice President of
Respondent. Respondent's main office is in Paul, Idaho. (TR 75-
77).[1]
Complainant was hired as a truck driver by Respondent on
March 16, 1993. TR 26. Six months later he became an assistant
batchman. (Id.) Respondent operates two types of cement mixer
trucks: a regular cement mixer and a train mixer. Each type has
a barrel designed to haul 12 cubic yards of cement. TR 163. The
train mixer has extra axles which enables it to meet Idaho bridge
weight requirements. TR 148, 163.
On July 30, 1993, Complainant was involved in an accident in
which the train mixer he was driving overturned and he was
injured. TR 26, 28 58; CX 3. Complainant contends that the
train mixer was unsafe. TR 28. Respondent argues it was due to
Complainant's fault. TR 81. Complainant was charged with
operating a vehicle at a speed that was not reasonable and
prudent. After a court trial, Complainant was acquitted of the
offense. CX 2.
Idaho law prohibits the operation of trucks which exceed
specified weight limits per axle. TR 104. Respondent concedes
that on occasion it operates cement mixers that are overweight
under Idaho law. TR 103, 135. Complainant and Respondent differ
as to the frequency at which these violations occur. Compare TR
61 with TR 135. The weight law is intended to protect bridges in
Idaho from being damaged. TR 104.
Complainant was assigned to the Twin Falls yard. At some
time around the occasion of the accident all of the train mixers
were moved to the Paul yard for business reasons unrelated to the
accident. TR 39.
Complainant testified that after the accident he was fearful
of driving a train mixer and only drove one, which was empty,
thereafter. TR 38. After the accident, Complainant made
arrangements with Respondent so that he only drove regular cement
mixers which were based in Twin Falls. TR 64. Complainant
complained that the regular cement mixers were poorly maintained.
TR 41-44. Complainant testified that on one occasion he called
the Department of Transportation and asked what he could do about
the situation and was told to "turn Kloepfer in." TR 43.
Complainant was on probation for an unspecified offense.
One of the terms of probation was that he was to be continuously
employed. TR 44. Complainant did not want to jeopardize his
probation so he started collecting paperwork which could be used
after the probation ended. Id.
Complainant's probation ended while he was on vacation. TR
44, 67. The day he returned to work after the vacation
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Complainant had a secreted tape recorder with him. He found that
Steve had changed an eight-yard load which he was supposed to
drive to a ten yard one which made it overweight. TR 44.
Complainant radioed Steve and said they had to talk about the
load. Steve came over and Complainant told him that he would not
run overweight loads anymore. He would run a nine-yard load but
not a ten-yard one. Id. Steve told Complainant that if he
didn't run the load "we don't need you anymore." TR 45.
Complainant then punched out. Id. Then a series of events
occurred upon which this case turns.
Steve testified that at the same time he told Complainant
that they could not use him and, in response to a question from
Complainant, that he was fired, he also told Complainant that he
could not make the sole decision as to whether Complainant was
fired. Terry, Steve's supervisor, also had to be involved. TR
93. Steve called Terry on the intercom and he came to the batch
office where Complainant and Steve were. TR 94. After a
conversation, Steve reaffirmed the firing but then said that
Ernie needed to be involved. Id. Terry then told Complainant
that he was caught off guard, needed time to think about the
firing, and get Ernie's opinion about it. TR 95.
Terry called Ernie, who was at the Paul office, and told him
about the situation. TR 95. Ernie called the batch office and
talked to Complainant and Steve. Shortly thereafter, Ernie
called back and told Steve to tell Complainant that they had a
plan which would benefit all. Complainant would be assigned to
drive a larger truck (train mixer) which would not require him to
haul overweight loads. TR 97. Because of the extra axle the
train mixer would not likely be overweight under Idaho law.
Steve told Complainant he would scratch out the punchout on the
time card and he would be paid for the entire day. Id.
Complainant stated that if he stayed he would be badly treated
and Steve told him he would not. TR 98. Steve then told
Complainant to take the company pick-up truck and go to Paul and
get a train mixer so he could deliver concrete. Id. Complainant
took the keys to the pick-up but returned in a few minutes. He
told Steve "You've already fired me" and then left. TR 99. The
complaint at bench ensued.
DISCUSSION
A. Jurisdictional Findings
Based upon the findings of fact heretofore made, I make the
following findings relating to jurisdiction:
1. Both parties are subject to the Act.
2. The parties are subject to the jurisdiction of the
Office of Administrative Law Judges of the United States
Department of Labor.
3. Respondent is a person within the meaning of the STAA.
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4. Complainant is an employee with the meaning of STAA.
B. The Tape Recording
The surreptitious tape recording made by Complainant was
received in evidence. TR 177; CX 14; Fed. Rules Ev.,
§901. However, since Respondent had never heard the tape
the Court provided for its reproduction by a third party and
permitted Respondent to file comments or objections. TR 185.
Respondent filed timely comments. It objects to the tape
because of its brevity and alleges that only a selective, minimal
portion of the conversation among the parties was recorded.
Complainant concedes parts of the conversation were not
captured on the tape and parts of it are not understandable. TR
108-09. The Court has listened to the tape. I find that it
should not be stricken from the record but that it has little
probative value. The conversation on the tape that can be
discerned is not inconsistent with the testimony of Respondent's
witnesses up to the point where the tape ends. As hereinafter
discussed, I find that the tape does not contain the entire
conversation among the parties and does not accurately reflect
the entire incident.
C. Termination Events
The primary issue in this case is whether Complainant's
employment with Respondent was terminated because Complainant
engaged in protected activity under the Act. There is no direct
jurisdiction in this proceeding to enforce Idaho weight limit
restrictions, mandate safe maintenance practices or require the
utilization of safe equipment. Enforcement of these matters is
left to others.
The parties disagree about what happened after Complainant
refused to drive the overweight regular cement mixer.
Complainant contends that he was fired for refusing to haul an
overweight load when Steve told him that Respondent could not use
him anymore and he punched out. TR 47-48. Respondent contends
that Complainant was not fired but left for his own reasons.
Complainant also asserts that when Respondent offered to let him
drive the train mixer it knew he was afraid to drive it and would
refuse to do so. TR 50 -52.
It is unnecessary to dwell at length as to whether
Complainant was fired. This case turns upon the issue of whether
Complainant had a reasonable apprehension of serious injury if he
drove the train mixer. If Complainant was not fired, relief
herein would be dependent on the reasonable apprehension issue.
If it is assumed that Complainant was fired he would not be
entitled to back pay if Respondent's almost immediate offer to
continue his employment and have him drive the train mixer
constituted a bona fide offer of reinstatement. Polewsky v.
B&L Lines, 90-STA-21 (Sec'y May 29, 1991). This
determination also
[PAGE 5]
depends on the reasonable apprehension issue.
D. Reasonable Apprehension Issue
Clearly, Complainant was apprehensive about driving a train
mixer. However, under the Act an employee's apprehension is
reasonable "only if a reasonable individual in the circumstances
then confronting the employee would conclude that the unsafe
condition establishes a real danger of accident, injury, or
serious impairment to health." 49 U.S.C. §31105(a)(2). In
addition, to qualify for protection under this provision, the
employee "must have sought from the employer, and been unable to
obtain, correction of the unsafe condition." Id.
Unlike Section 31105(a)(1)(B)(i), Section 31105(a)(1)(B)(ii)
does not require complainant to establish that an unsafe
condition actually existed at the time of his refusal to drive.
Rather complainant need only demonstrate that his apprehension of
serious injury was reasonable at the time of his refusal to
drive. See Thom v. Yellow Freight System, Inc., 93 STA-2
(Sec'y Nov. 19, 1993), slip op. at 6-7 ("Whether a condition is
sufficiently hazardous requires the exercise of judgment and
ordinarily is made on the basis of information available at the
time of the refusal"), affd, Yellow Freight Systems, Inc. v.
Reich, 38 F.3d 76, 82-83 (2d Cir. 1994).
Complainant did not go to the Paul yard to pick up a train
mixer. No specific piece of equipment was involved. Thus, his
apprehension was based on his contention that all of Respondent's
train mixers are unsafe to drive, particularly when loaded. TR
60. Would a reasonable individual under these circumstances come
to the same conclusion?
As indicated, Complainant testified about the accident he
had while driving the train mixer. TR 27, 34. Complainant also
introduced in evidence photographs of train mixers and regular
mixers. CX 4A-4F; 5A-5C;[2] 6; 7; 8; 9; 10. Two diagrams
prepared by Complainant which purport to illustrate the inherent
unsafeness of the train mixers, were received in evidence. CX
1OA;[3] 11. Complainant testified that the train mixers are
inherently unsafe because the barrel is located much further back
of the cab than on a regular mixer. Complainant testified that
he had observed train mixers operated by other drivers where the
front wheels came off the ground while being driven both forward
and backward. Complainant attributes this to the weight and
location of the barrel. Complainant testified that it is
impossible to steer the train mixer while the front wheels are
off the ground. TR 36 -37. Complainant also testified that the
steering for the back of a train mixer is controlled by an
electric toggle switch on the dash which is unsafe. TR 38.
Complainant testified that he told Respondent about the
alleged defects of the train mixers on various occasions. TR 32,
[PAGE 6]
34, 37. He also stated that, since the accident, except for the
occasion when he drove an empty one, he never drove a train mixer
again. He asked Respondent not to assign him to drive one and
until the termination incident it did not. TR 38.
Shane Dickard, who is employed by Respondent as an assistant
batchman trainee, was called as a witness by Complainant.
Dickard testified that he had driven a train mixer but did not
have a lot of experience with it. Dickard never had a close
call with a train mixer. TR 10, 14. Dickard also testified
that driving an overweight truck was not unsafe if the driver
drove it slow and carefully. TR 15.
Derek Johnson, who is a cement mixer truck driver for
Respondent, was also called as witness by Complainant. Johnson
testified that he had driven a train mixer on two occasions for a
total distance of approximately four miles. He stated that based
on that limited experience he could not say whether the train
mixer was safe or unsafe to drive. TR 18. He stated that he
never had a problem with an unsafe truck while working for
Respondent. TR 23.
At Complainant's request all witnesses were excluded from
the courtroom. Respondent was permitted to designate one person
to represent the corporation at the counsel table. TR 6-7.
Steve was the designee.
Steve was the first witness to testify in behalf of
Respondent. He stated that he had driven cement trucks for
fifteen years. TR 78. Steve testified that the only difference
between the regular cement trucks and the train mixer was an
extra set of wheels. He testified that the extra set of wheels
was located at the back of the truck and was hooked up to steer
hydraulically, just as the front end, but that the steering for
the extra set of wheels was controlled by a toggle switch. TR
79. Steve stated that the hydraulic steering of the rear wheels
was only used on the job site. Id. When the train mixer is
operated on the highway there is a knob that is pushed which
makes the back tires free wheel. There is also an electric
switch which must be engaged to hold the back tires straight
while going down the road. No hydraulic power is used by the
rear wheels while on the highway. Id.
Steve also testified that Respondent had operated mixer
trains for approximately twenty years. Other than the accident
involving Complainant, he was unaware of any other accident
involving a mixer train, although there had been numerous
accidents involving regular mixers. TR 80. He was not aware of
any driver other than Complainant who did not like to drive the
mixer trains. TR 81.
Steve further testified that it is not uncommon for the
wheels of mixer trains to leave the ground on job sites but this
[PAGE 7]
was not unsafe. TR 82-83. This does not happen on the road.
TR 83. In fact, on cross-examination Complainant testified that
the only times he saw train mixer wheels come off the ground were
on job sites. TR 61.
Steve did not recall any prior conversations with
Complainant about driving overloads and denied telling
Complainant, or anyone else, that he would be fired if he refused
to drive an overload. TR 84-85, 93, 102.
Terry testified next in behalf of Respondent. He stated
that Complainant had never communicated to him about any problem
he was having with overweight trucks. TR 141 -42, 144, 149.
Ernest was the final witness called by Respondent. He
testified that he made the decision to tell Complainant to pick
up and drive a train mixer because it would solve the problem.
TR 163-64. Ernest stated that he made this decision because
Respondent was not a "firing company" and it tried to work out
problems just as it had done with Complainant after his accident.
TR 164. He also testified that at the time he made the decision
he knew nothing about Complainant's problem with driving the
train mixers. TR 164.
I find that Complainant had a personal apprehension of
driving train mixers but that this apprehension does not meet the
statutory test under 49 U.S.C. §31105(a)(2).
Since Complainant did not go to the Paul yard to pick up a
train mixer his apprehension was not based on driving a specific
truck. It was based on his contention that all of Respondent's
train mixers are unsafe.
The only evidence of record to support Complainant's
contention that the train mixers are unsafe is his testimony and
the pictures and diagrams he introduced in evidence. The two
witnesses called by Complainant did not corroborate his
contention. Shane Dickard, who had driven a train mixer but had
little experience with them, testified that he never had a close
call in one. TR 10, 14. Derek Johnson, who had driven two train
mixers for short distances, testified that based on this limited
experience he could not say whether they were safe or unsafe to
drive. TR 18.
Steve testified that Respondent had operated mixer trains
for approximately twenty years. Other than the accident
involving Complainant he had not heard of another accident
involving a mixer train. TR 80. There is nothing in the record
which contradicts this statement. If the train mixers are
inherently unsafe one would infer that there would have been more
than one accident involving them in twenty years. Steve also
testified that he was not aware of any driver other than
Complainant who did not like to drive mixer trains. TR 81. As
indicated, Complainant did not produce any other witness who
[PAGE 8]
testified that mixer trains were unsafe. The weight of the
evidence does not support a finding that a reasonable individual
in the circumstances confronting Complainant would have concluded
that driving any of Respondent's train mixers would have
constituted a real danger of accident, injury or serious
impairment to health.
B. Applicable Law
A complainant may recover under the Act in three
circumstances. First, an employee may recover by showing that he
or she was subject to an adverse employment action for refusing
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.
§31105(a)(1)(B)(i). Second, an employee may recover by
showing that he or she was subject to an adverse employment
action for refusing to operate a motor vehicle "because 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)(1)(B)(ii). To qualify for
protection under this provision, a complainant must also "have
sought from the employer and been unable to obtain, correction of
the unsafe condition." 49 U.S.C. § 31105(a)(2). Third, an
employee may recover by demonstrating that he or she was subject
to an adverse employment action because the employee "has filed a
complaint . . . related to a violation of a commercial motor
vehicle safety regulation, standard, or order." 49 U.S.C. §
31105(a)(1)(A).
The burdens of proof under the Act have been adopted from
the model articulated by the Supreme Court in Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248 (1981) and, more
recently, in St. Mary's Honor Center v. Hicks, - U.S. -,
113 S.Ct. 2742 (1993). See Anderson v. Jonick & Co., Inc.,
93-STA-6 (Sec'y Sept. 29, 1993). Under this model,
Complainant must first establish a prima facie case by
demonstrating, through a preponderance of the evidence, that he
was engaged in a protected activity, was subject to adverse
employment action, and the Respondent was aware of the protected
conduct when it took the adverse action. Complainant must also
present evidence sufficient to raise the inference that the
protected activity was the likely reason for the adverse action.
Greathouse v. Greyhound Lines, Inc., 92-STA-18 (Sec'y
Dec. 15, 1992), slip op. at 2.
Once Complainant establishes a prima facie case, the
burden of production shifts to Respondent to rebut the
presumption of discrimination by producing evidence which, if
believed by the trier of fact, would support a finding that the
adverse action was motivated by a legitimate non-prohibited
reason. If Respondent rebuts the presumption, the burden of
production
[PAGE 9]
shifts back to Complainant to establish that Respondent's
proffered reason to pretextual and that Complainant has proved
retaliation. However, I may also find for Respondent if I
conclude that it was not motivated in whole or in part by the
protected conduct. Carroll v. J.B. Hunt Transportation,
91-STA-17 (Sec'y June 23, 1992).
C. Conclusions of Law
Clearly, Complainant's refusal to drive the cement mixer
which was overweight under Idaho law was a protected activity. A
violation of a federal regulation would have occurred if
Complainant had not refused to operate the vehicle as directed by
Respondent. 49 U.S.C. 33105(a)(1)(B)(i); 49 C.F.R. § 392.2.
However, the incident did not end at this point.
As indicated, it is not necessary to determine whether or
not Complainant was fired at that time. Respondent did not
attempt to compel Complainant to drive the overweight vehicle.
Within less than an hour Respondent told Complainant to go to the
Paul yard and pick up a train mixer which could be operated
without violating Idaho weight limits. Complainant refused to do
so and left. If he had not been fired this terminated his
employment. If Complainant had been fired this constituted a
refusal of an offer to reinstate him.
Complainant's refusal to drive the train mixer is the
determinative event in this case. If he was still an employee of
Respondent was his conduct justified under the reasonable
apprehension rule? If Complainant had been fired was the offer
of reinstatement bona fide if he was required to drive a train
mixer which he had a reasonable apprehension was unsafe?
Preliminarily, I address the question of whether, absent the
overload incident, Complainant's employment could have been
terminated at any time if he refused to drive a train mixer where
he had a personal apprehension of driving one and Respondent knew
he was apprehensive about driving that type of mixer? I conclude
that regardless of Complainant's personal apprehension and
Respondent's knowledge thereof he could be fired an any time for
refusing to drive a train mixer unless his refusal was based on
the reasonable apprehension test or other applicable provisions
of 49 U.S.C. § 33105 and regulations adopted thereunder.
As previously discussed, Complainant did not refuse to drive
a specific train mixer. His refusal was based on his contention
and belief that all of Respondent's train mixers are inherently
unsafe because of their design. I have already found that
Complainant's personal apprehension did not meet the test of
reasonable apprehension under 49 U.S.C. § 33015(a)(2).
I conclude that Complainant has failed to establish a
prima facie case that his employment was terminated
because he engaged in a protected activity under the STAA. If
he was an employee
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of Respondent at the time he refused to drive the train mixer he
has failed to establish that he refusal was based on a reasonable
apprehension under 49 U.S.C. § 31105(a)(2). If he had been
fired, Respondent made a bona fide offer of reinstatement when it
asked Complainant to drive the train mixer, which he declined to
do.
In the light of the foregoing I find and conclude that
Complainant is entitled to no relief in this case.
RECOMMENDED ORDER
It is Ordered That Complainant is entitled to no relief in this
case and the complaint is denied.
DONALD B. JARVIS
Administrative Law Judge
NOTICE: This Recommended Decision and Order and the
administrative file in this matter will be forwarded for review
by the Secretary of Labor to the Office of Administrative
Appeals, U.S. Department of Labor, Room S-4309, 200 Constitution
Avenue, N.W., Washington, D.C. 20210. The Office of
Administrative Appeals has the responsibility to advise and
assist the Secretary in the preparation and issuance of final
decisions in employee protection cases adjudicated under the
regulations at 29 C.F.R. Parts 24 and 1978. See 55 Fed.
Reg. 13250 (1990).
[ENDNOTES]
[1] Claimant's Exhibits are referred as CX and the Transcript as
TR. Respondent offered no exhibits.
[2] At the hearing there was no objection to Complainants
Exhibits 4A-4F and 5A-5C. I inadvertently failed to include them
in evidence. TR 56. They are hereby admitted in evidence.
[3] Two exhibits were designated as CX 10. The first diagram has
been renumbered as CX 1OA.
