Date: August 2, 1996
Case No. 96-STA-20

In the Matter of:

MICHAEL A. PATEY,
    Complainant

    v.

SINCLAIR OIL CORPORATION,
d/b/a SINCLAIR TRUCKING
COMPANY,.
    Employer

    and

DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS,
    Party-in-Interest.

Appearances:

    Margaret A. Miller, Esq.
    Office of the Solicitor - USDOL
    1999 Broadway, Suite 1600
    Denver, CO 80202-5716
    nbsp;   For the Complainant

    Lisa-Michele Church, Esq.
    Sinclair Oil Company
    550 East South Temple
    P.O. Box 30825
    Salt Lake City, UT 84130-0825
    nbsp;   For the Employer

Before: Edward C. Burch
    Administrative Law Judge

This matter arises under the provisions of section 405 of the Surface Transportation Assistance

Act of 1982, 49 U.S.C. 31105 (the act). Complainant timely filed a complaint with the Secretary of Labor alleging the Respondent, Sinclair Oil Corp. (Sinclair), discriminatorily discharged the complainant for making job safety complaints and refusing to perform an allegedly unsafe job assignment as an operator of a commercial vehicle. Following an investigation the Regional Administrator of the Occupational Safety and Health Administration concluded that complainant Michael A. Patey had engaged in activities protected under Section 405 of the act when he brought safety concerns about the wet-line fueling procedures to the attention of Sinclair and when he refused to make deliveries because he feared injury might occur to himself and to others. The Secretary's agent concluded that Sinclair's termination of Patey would not have occurred in the absence of the protected activity and, accordingly, ordered back pay to be paid to complainant by Sinclair until Patey either obtained employment or refused reinstatement with Sinclair. Following timely objections to the Secretary's findings a formal hearing was convened in Salt Lake City, Utah on June 19, 1996 before the undersigned Administrative Law Judge. At that trial evidence was admitted, testimony was received, and the record was closed. On July 30 a three page fax was received from Mr. Steven Kehl of Sinclair and on July 31 another three page fax was received from a Mr. Nathan C. Root of the Department of Transportation. The record having been closed, and there having been no motion to reopen the record, these facsimile receipts were not admitted. They were, however, read. It should be noted that their contents were of no assistance, even had they been admitted, and their admission would in no way have changed the findings of fact, conclusions or recommendation in this matter.

The only valid safety concerns, lighting and spillage, were timely addressed by Sinclair and were corrected. The other concerns were simply apprehension on the part of Mr. Patey and did not constitute protected activity. Complainant was not let go because he voiced safety complaints, or because he refused to perform an unsafe job. He was let go because he would not service an important account. Accordingly, it is recommended that the complaint of Michael A. Patey be dismissed.

Respondent Sinclair is engaged in trucking operations and maintains a place of business in Salt Lake City, UT. In the regular course of this business Sinclair's employees operate commercial motor vehicles in interstate commerce principally to haul liquid fuels. Respondent is now and, at all times material herein, has been a person as defined in section 401(4) of the act.

On or about June 18, 1995, and October 12, 1995, Sinclair hired complainant, Michael A. Patey, as a driver of a commercial motor vehicle, to wit, a tanker truck with a gross vehicle weight rating in excess of 10,000 pounds.

At all times material Michael A. Patey was an employee in that he was the driver of a commercial motor vehicle having a gross vehicle weight rating of 10,000 or more pounds used on the highways in interstate commerce to transport liquid fuels and in that he was employed by a commercial motor carrier and, in the course of his employment, directly affected commercial motor vehicle safety.

Respondent hired complainant originally and he began work as a driver of a commercial motor vehicle for Sinclair on June 18, 1994. On June 30, 1995 Patey quit his job with Sinclair and commenced employment with Fleischli Oil as a commercial motor vehicle driver. On October 13, 1995 Patey returned to work for Sinclair as a driver of a commercial motor vehicle, having been rehired by Steve Johnson. His usual shift was 4 p.m. to midnight. On or about November 10, 1995 Sinclair obtained the Utah Railway account for delivering and doing wet-line fueling of locomotives at Provo, and eventually, Helper, UT. Sinclair's terminal manager, Steve Johnson, visited the work site and obtained photographs. With the photographs he discussed this new account with Patey. On November 16, 1995 Johnson and Patey went on a fueling run together to the Utah Railway yard.

The manner in which the locomotives were refueled then, and at all times, was to drive the fuel truck between tracks, stopping the truck at the locomotives and then connecting the fuel line from the truck to the locomotives. Of necessity the trucks were within a few feet of the idling locomotives. Diesel fuel number two was the fuel always used. The connection at the locomotive is by a special fitting and is a twist lock. Once locked there can be no spillage. It is only when connecting or disconnecting that spillage can possibly occur.

Mr. Patey testified that on November 16, in the dark of night, he went on his first fueling run with Johnson. Because of the darkness and poor lighting (they worked with flashlights) he had some trouble making the connection and there was some diesel spillage. He and Johnson also noticed sparks coming from the stacks of the four locomotives. With the smell of diesel fuel in the air and the added rumbling and hissing noises of the locomotives, he felt quite uncomfortable.

Mr. Patey testified that he felt at risk, for he feared there might be an explosion. After leaving the yard he and Johnson discussed making the job easier and more comfortable, and Johnson stated he would look into putting lights on their truck.

The following day Patey and another employee, Robert Day, fueled the locomotives. Patey again felt uneasy. That night he talked to Johnson and told him he didn't like wet line fueling and did not wish to do it in the future. That night and the next day there were discussions between Patey and Johnson in which Johnson said he would have lights put on the trucks and would provide support for the hoses to prevent leakage from the hoses twisting. Patey suggested using another truck with a thinner line which could extend approximately 100 feet. Johnson discounted that suggestion. When Patey decreed he would not engage in wet-line fueling he was advised there would be no further work for him.

Steven L. Kehl, who succeeded Patey in the fueling operation, testified that he too felt uneasy in the wet-line fueling environment but that he had fueled locomotives on many occasions without incident. He further testified that safety meetings are held monthly and safety concerns of employees are never ignored.

An employee of M.K. Rail, a builder of locomotives, Edward Harding, testified that Utah Railway leases locomotives from his corporation. He further testified that wet-line fueling is done all over the United States and represents about forty percent of the fueling of locomotives. He stated that in most instances it is not possible to shut off in route locomotives because it takes several hours to get them ready to go. In addition, they can not be shut down in freezing weather. He stated that wet-line fueling has been a common practice since the early 1940's when diesel electric locomotives became standard. His testimony concerning the sparks is that they are caused by minute oil droplets and pose no fire hazard as they bum out almost as soon as they leave the stack and do not reach the ground. In addition, diesel fuel cannot be ignited below 130 degrees and cannot be ignited with a match. He stated that diesel fuel gives off a smell, but there are no fumes since fumes do not occur until at least 130 degrees is reached. The fittings used by Sinclair are standard throughout the industry. When he visited the Sinclair fueling operation he observed lights on the truck which made the area very light at night. When asked about using the other truck, as once suggested by Patey, Harding stated this would be impossible because the line was so narrow the operation would take hours. In addition, it would be extremely dangerous to have the truck far from the locomotives because the lines would have to extend over the tracks. In summary, he stated that "Sinclair has done it the same way it's done across the United States ... the way ... the rest of the world does it, there's absolutely no problem.

The terminal manager, Steven L. Johnson then testified and stated that Sinclair has a very strong posture on safety and has meeting approximately each month. He further stated that he had been informed by Fleichly Oil, Patey's prior employer, that Patey would not be permitted on their premises. Fleichly represented 30 to 40 percent of Sinclair's business. That Patey would not be sent on any Fleichly jobs was acceptable. But, it was not acceptable that Patey not work on either the Fleichly account or the Utah account. Drivers, understandably, cannot be permitted to select the accounts to be serviced.

Johnson confirmed that on November 16 Patey had had some difficulty with the fitting and approximately two cups of fuel were spilled. This occurred because of inexperience and because the line had twisted, perhaps due to poor lighting. He advised Patey he would have lights installed on the truck, and, in fact, this was accomplished the following Monday. After leaving the rail yard he and Patey discussed how they could make the job easier. In addition to better lighting Johnson told Patey to obtain couplings, or supports for the fuel lines, or whatever he felt he needed.

The night of the 17th, when they talked following Patey's second wet-line fueling, Patey said he did not wish to continue. Johnson advised him to consider what he had said and discuss it further the next day. Johnson advised Patey he would provide whatever equipment he wished.

The following day there was no resolution and Patey was advised there would be no work for him.

The sum total of all the testimony and evidence is that there is no substantial factual dispute. I accept all of the testimony as factual and accurate. Mr. Patey felt very uncomfortable and believed the wet-line operation was unsafe. It is understandable that he would feel uncomfortable in such an environment. There were, however, no safety problems that were not immediately addressed. Hence, it must be concluded that complainant's refusal to service the locomotives was unreasonable under the circumstances. There is no credible evidence that Patey was terminated because of safety complaints or because of a justified refusal to perform an unsafe job.

It is concluded no violation of the act occurred. It is recommended that the complaint of Michael A. Patey be dismissed.

EDWARD C. BURCH

Administrative Law Judge

ECB:mw

This recommended Decision and Order and the administrative file in this matter willl be forwarded for review by the Secretary of Labor to the Administrative Review Board, U.S. Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Ave., N.W., Washington, D.C. 20210. The Administrative Review Board 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).