DATE: 7-31-96

CASE NO: 96-STA-0017

OSHA Case File No. 31105

IN THE MATTER OF

      Joseph A. Dear, Assistant Secretary of Labor for 
      Occupational Safety and Health,
                      Prosecuting Party,

      David Ferguson and Robert Womack,
                      Complainants,

              v.

      K & P, Inc.
                      Respondent,

Counsel:

Dorian West, Esq,
     For the Complainant

(Respondent appeared pro se.)


Before:  CHARLES P. RIPPEY
         Administrative Law Judge
      
                      
                RECOMMENDED DECISION AND ORDER
                               
  This matter is before me on a request by the Respondent for
a formal hearing following issuance of the Secretary's Findings
on March 20, 1996 in which the Secretary determined that the
Complainants' termination on February 24, 1996 was in violation
of ¶31105 of the Surface Transportation Assistance Act
(STAA),.  49 U.S.C. 31101, et. seq., and ordered payment of back
wages and expunging of personnel records.

      This matter arises from a timely complaint filed by David
Ferguson on behalf of himself and Robert Womack, alleging that
they were discharged from the employ of Respondent, K & P, Inc.,
(hereafter K&P) for lodging safety complaints.

      In 1992, Ken Pratt entered into a contract with the O & C
Corporation (O&C) to haul lead oxide to O&C's customers in
Georgia, Ohio, and Kansas.  In 1993 respondent K&P was created
which assumed Ken Pratt's contract with O&C.  At all times
relevant hereto, Ken Pratt has been president of K&P.  Georgia
Oxide, O&C's Georgia facility, owned the lead oxide trailers
which were pulled by truck cabs owned by K&P in fulfillment of
its contract with O&C.  Prior to June of 1994, K&P was
financially responsible for the maintenance and repair of the
trailers owned by Georgia Oxide which it pulled.  In June of
1944, Georgia Oxide took over the full responsibility for the
maintenance and repair of the trailers, including brakes, lights,
seals, springs and shock absorbers.

      Robert Womack was hired by K&P has a truck driver in
October, 1993 to haul lead oxide to customers of Georgia Oxide. 
Lead oxide was loaded into the trailers from a hatch on top of
the trailer and then would be unloaded at customer locations
through a vacuum system on the bottom of the trailer through a
four inch hose into a storage silo.  Lead oxide is a power that
is made into a paste and placed into batteries.

      Toward the end of October, 1994 David Ferguson was hired by
K&P as a truck driver and from then until their termination on

[Page 2]
February 24, 1995, the Complainants, David Ferguson and Robert
Womack, were the two primary truck drivers for K&P under its
contract with O&C for the hauling of lead oxide.

      Starting in July, 1994, Robert Womack complained orally to
Ken Pratt regarding leaking hatches, leaking hoses, bad brakes on
the trailers, bad seals, broken shock absorbers, faulty wiring,
and cracks in the frames of the trailers.  These complaints also
were made to Frank Lockovic, a supervisor for K&P in Ohio and to
Don Richards, manager of Georgia Oxide.  When Mr. Womack's oral
complaints did not result in corrections, he started writing them
on bills of lading for each trip where there was a problem.  Ken
Pratt was aware that Robert Womack was writing safety complaints
on the bills of lading, and in December of 1994 told him to stop
writing complaints on the bills and to make all complaints di-
rectly to himself, Ken Pratt.

      David Ferguson began complaining daily about safety
concerns to his supervisor, Frank Lickovic, shortly after he was
employed.  These complaints involved the same subjects as those
of Robert Womack.

      Don Richards was angry about the complaints, particularly
the ones written on the bills of lading, and stated that if they
did not stop he would attempt to have the Complainant's
terminated.  He instructed clerical personnel at Georgia Oxide to
white-out the complaints on the bills of lading so the corporate
office would not see them.

      Ken Pratt believed the complaints made by the Complainants
to be valid and was aware that Don Richards was not happy about
the complaints.  Robert Womack refused to take several lads
because of safety concerns with the trailers, and both Ken Pratt
and Frank Lickovic were aware of and angry about these refusals. 
In February of 1995 both Complainant were discharged at the same
time.

      When first asked at the hearing, Ken Pratt stated that the
reason he fired the Complainants was "because they refused to
shave their beards." Shortly thereafter, Ken Pratt stated that
"it was those refusals, not shaving their beards."  When later
reading a response to a question asked during an interview with
an OSHA[1]  investigator
regarding the cause for the dismissals, Ken  Pratt stated, "Of
them refusing the loads and this kind of stuff, okay, more than
anything. . . the hatch problems got enormous I can tell you."

      Robert Womack testified, "He [Ken Pratt] told me he says--he
says I know they put your back up against the wall.  You didn't have
no choice but to come out fighting.  And he says--he
says I guess the main reason I'm firing you is because of your
beard."

      Complaints to supervisors and officials of an employer is
protected activity under the STAA, and here the Complainants
complained consistently to such persons about the unsafe
conditions of the trailers described above, and refused to take
loads because of these complained of conditions. 

      Here Ken Pratt came to Georgia in December of 1994 and
asked the Complainants to stop complaining, and when they did not
they were terminated two months later.  But this case does not
rest solely on temporal proximity, Ken Pratt admitted that safety
complaints and refusals based thereon were one of the reasons for
the dismissal of the Complainants.

      There is absolutely nothing in this record that supports
Ken Pratt's contention that he fired the Complainants because
they refused to shave their facial hair.  Ken Pratt never told
the Complainants that they would be disciplined or fired because
of facial hair; he never provided Complainants with respirators
or gave them any information on lead oxide dangers; he never had
the respirators that Complainants secured on their own fit tes-
ted; and never check to see if Complainants were trained to use
the respirators.  Both before and after the terminations of the
Complainants, other K&P drivers had beards or facial hair. 
Robert Womack had been employed for 17 months, during which time
he always had some facial hair, but it was not until the
January/February 1995 time frame that Ken Pratt alleges that the
Complainant's beards became an issue.  Ken Pratt's stance that
the Complainants were discharged because of facial hair is a
pretext, and played no real part in the discharge decision.


             Discussion of Respondent's Brief

      The Respondent asserts in its brief that Joseph Hearn
testified at the hearing that it was the Respondent's policy for
drivers to be clean shaven.  Although Mr. Hearn testified that
the facial hair worn by the Complainant's would preclude a proper
respirator fitting and that when he drove with Frank Lickovic on
an inspection run, Mr. Lickovic was clean shaven, he did not
testify that it was Respondent's policy to have drivers clean
shaven, or that Respondent required drivers to be clean shaven. 
Although Ken Pratt testified that Robert Womack shaved his beard
when he came to work and was clean shaven for a year thereafter,
Robert Womack testified that he shaved his full beard back to a
goatee after he was hired by Respondent, but always maintained
what he called scruffy hair over his entire face because he does
no like to shave.  I accept Robert Womack's testimony on these
matters.  In the brief signed by Ken Pratt, it states that Robert
Womack refused to shave and "that is the reason both of them were
terminated by from Ken Pratt Trucking [sic] (presumably referring
to Respondent, K & P, Inc.).  However, there is no testimony or
other evidence in this record that either of the Complainants
ever were directed by Ken Pratt or anyone else in supervisory
authority over the Complainants to remove their facial hair. 
Robert Womack testified that Ken Pratt said at the December 1994
meeting that facial hair was not an issue.  That testimony is
consistent with the other evidence in this record, and I accept
it.

[Page 3]

      Ken Pratt asserts in his brief that the Complainant's
refused to work on the trailers, however, the testimony in the
record is that Don Richards directed them not to work on the
trailers and told them that his insurance was not effective when
they were on the trailers.  I find this testimony credible and
consistent with the other evidence in this record and accept it.

      The Complainant's testified that they were required to file
false logs by not showing safety problems or illegal driving
time, and this is confirmed with regard to the driving time by a
comparison with the payroll records with the logs and with regard
to safety problems by the frustrated attempt to create a record
of safety problems on the bills of lading when they could not be
shown on the logs.  The Complainants testimony on these points is
consistent with other supporting evidence; I found them credible
witnesses, and it is accepted.

      In its brief, the Respondent attacks the Complainants as
persons who would lie and cheat on their log books, after requir-
ing that they lie and cheat.  It states that the only thing
Complainants were doing "is beating the system and benefiting
themselves to make money without working for it like most
Americans".  In fact, the Respondent discharged the Complainants
for complaining about unsafe, hazardous, and illegal conditions,
and cannot take advantage of any illegal records kept by the
Complainants which were demanded by the Respondent.

                        Conclusion

      The Respondent violated the Surface Transportation Assis-
tance Act by discriminating against the Complainants because they
engaged in protected activity.

      While reemployment is a usual component of the remedy for
violations of the STAA, in this case Robert Womack became
disabled and was unable to work after as of November 5, 1995.

      The detailed testimony and reports of calculations
regarding lost wages for the Complainants is in the record, was
not contested, and is accepted.  The total back wages lost by
Robert Womack through November 5, 1995 is $24,290.44, while the
wages lost by David Ferguson through June 3, 1996 is $16,518.31.

                             ORDER

      The Respondent, K & P, Inc., is ordered to:

      1.      Offer reinstatement to David Ferguson as a full
              time employee, and pay him $16,518.31 for back
              wages and interest due through June 3, 1996, plus
              back wages and interest for the period from June 4,
              1996 to the effective date of the reinstatement
              offer.

      2.      Pay back wages and interest of $24,290.44 to Robert
              Womack.

      3.      Expunge from its records all references to the
                            terminations of Robert Womack and David Ferguson 

              and make no oral or written references to the ter-
              minations in future inquiries by anyone, including
              prospective employers.



                              Charles P. Rippey
                              Administrative Law Judge
                              Voice Phone 202-565-4042
                              Fax Number 202-565-5325
                              E-Mail CRippey@OALJ.DOL.GOV






Washington, D.C.
CPR:bdw:2021_6

[ENDNOTES]

[1] Occupational Safety
and Health Administration