On cross-examination, Complainant acknowledged that he had a radio conversation with another driver, in which he made an inappropriate comment about Susan Johnson. He acknowledged that this conversation could have been heard by anyone listening to the radio. He further acknowledged that Mr. Geiger spoke to him an told him he should not have done it. Complainant testified that after speaking to Mr. Geiger, he apologized to Susan Johnson.

    He also testified that had he waited to get the tire fixed after speaking with Mr. Stephanec, on the morning of August 9, 1995 there would have been no financial penalty to him.

    After leaving DSI, Complainant has continued to work as a driver. He lost one month of work before being hired by Texaco. His salary at DSI was about $1000.00 per week. If he were to prevail, he seeks back pay but does not desire reinstatement. At Texaco, he now earns about $1000.00 per week, after starting at about $700.00 - $900.00.

    Mr. John Deline was called as a witness by Complainant. Mr. Deline is presently self- employed, but previously worked with Complainant at DSI for three years from August, 1992 to August, 1995. He hauled gasoline and worked as a dispatcher for six or eight months.

    He testified that it was common for workers to use vulgar language in the office and on the radio. He also testified that it was common for workers to be upset with a dispatcher, and to refuse to do loads. He was never disciplined any time he was upset in the office or on the radio. During his tenure as a dispatcher, Mr. Deline did not know of any time Complainant refused to take a load, but he was aware of Complainant getting upset at dispatchers just as others did.

    On cross-examination, Mr. Deline testified that he left DSI because he was terminated. He was fired a few weeks after he settled a law suit with DSI for a back injury. He was told he was terminated due to his job performance, such as repeatedly making mistakes in deliveries.

    Mr. Carl Bush testified on behalf of Complainant, Mr. Bush testified that he is a tank truck driver for Total Petroleum. He worked as a tank truck driver for DSI from April 1993 to early August, 1996. He also testified that the use of vulgar language was a common occurrence over the radio net and in the dispatch office. He also witnessed employers being upset with a dispatcher.

    He was present when Complainant had his confrontation with Mr. Stephanec on August 11th. Mr. Bush testified that it was unusual for Complainant to get that upset, but it was not out of the ordinary from what Mr. Bush had otherwise seen or heard in the dispatch office. He states that he has gone into the office " ranting and raving" and was never reprimanded by the terminal manger, Mr. Geiger. Mr. Bush does acknowledge that the terminal manager talked to him about his attitude. He was threatened with being put on probation as well as being fired, but both "settled down" and no disciplinary action was taken.

    Mr. Bush also testified that he had driven a vehicle after having reported safety violations that were not repaired. It was common not to have repairs made in a timely fashion. He states that "a percentage of the time" it was fixed overnight, unless they were missing the parts.

    On cross-examinations, Mr. Bush testified that he could drive another truck if his truck wasn't ready and another was available, but, if not, and his vehicle wasn't fixed, he had it drive it. He did not have the option of not working if his truck wasn't fixed on time.

    The parties have stipulated to the testimony of Mr. Mark Vogalsberg, who, if called to testify, would state that he had difficulty with the same tractor unit that had been driven by Complainant, and that Mr. Vogalsberg came close to running out of fuel and was relieved by another DSI employee who brought him fuel at his first delivery stop.

    Mr. Brent Geiger testified on behalf of Employer. Mr. Geiger has been the terminal manager for DSI in Kansas City since April, 1993. He had been with DSI for eleven (11) years, during which time he served as a dispatcher, a central dispatcher, a district manager and as terminal manager. As part of his job duties, he has attended approximately 10 seminars dealing with management, quality and safety.

    Mr. Geiger testified that on July 26, 1995 Susan Johnson, the dispatcher about whom Complainant spoke in a vulgar manner when criticizing her job performance over the two-way radio, was concerned that if this matter was not properly dealt with by the company, she would lose the respect and understanding of other drivers.

    Thereafter, Mr. Geiger met with Complainant and counseled him about his

comments about Ms. Johnson. He investigated why the truck that Complainant was to drive was late and determined that the delay was unavoidable due to working conditions on the route.

    According to Mr. Geiger, strong language is often used on the radio, but it was not to be directed at an another employee. Typically, it would be directed toward other vehicles or pedestrians.

    Regarding the August 11th incident, Mr. Stephanec advised Mr. Geiger about the failure to fix some of the defects on Complainant's truck and the fact that Complainant was upset. Mr. Stephanec had a second conversation later that evening with Mr. Geiger and advised Geiger of the shop foreman's explanation about why some of the defects weren't fixed.

    Subsequently, on August 12th, the shop foreman, Mr. Mooney, told Mr. Geiger what had been fixed but noted that there was a misunderstanding about one item due to the way it was written by Mr. Ash and interpreted by the shop workers. However, he agreed that the shop had missed the flat tire. He apologized and said they would have fixed it right away if the truck had been brought in.

    Mr. Geiger stated that he wanted to terminate Mr. Ash because of his temperament and attitude as displayed in the July 15 and August 11, 1995 incidents, but he does not have the authority to terminate a driver. He subsequently talked to other DSI officials: the vice president of safety, the vice president of human resources and the president of DSI, Thomas Hindle, before any decision relative to Complainant was made.    

Mr. Geiger testified that he has fired other employees for the same reasons. He referred to a Mr. Scott Glen who refused work from a dispatcher because he apparently was dissatisfied with the quality or destinations. He went home alleging that he was sick and was terminated. He was unable to name any other employees who were terminated for having a bad attitude or temperment, but testified that such employees decided to leave and look elsewhere for work.

    On cross-examination, Mr. Geiger admitted that Complainant was never given a write-up and never asked to sign a statement that he did something wrong. On past occasions if any violation occured, such as with log books or accidents, Complainant was given a statement to acknowledge what had happened.

    Mr. Robert Stephanec testified on behalf of Respondent. His position since January 1995, is regional safety supervisor for DSI transport. He also worked as a tractor trailer-driver for Proctor and Gamble, and prior to that was a regional safety supervisor for Sherwin-Williams Paint Co.

    His qualifications include being a certified fleet supervisor and safety professional with the Texas Department of Public Safety and the American Trucking

Association. In these positions, he has received training regarding Department of Transportation and OSHA regulations. He has responsibility for numerous freight terminals and about 120 employees. He testified that under company policy, a safety concern could be voiced to anyone in management.

    On August 11, 1995 Mr. Stephanec testified that he had a conversation with Complainant in the dispatch area. According to Mr. Stephanec, Complainant approached him in an agitated state and wanted to know what has going to be done about continuing reports of deficiencies and equipment problems, because they weren't being addressed to his satisfaction.

    Mr. Stephanec testified that Complainant was talking in a loud voice, drawing the attention of others in the area. He stated that Complainant threw a vehicle condition report to the floor because he wasn't satisfied with the exceptions noted on the report.

    Mr. Stephanec advised Complainant that he was unfamiliar with the problem noted on the report but would discuss it with the shop foreman to see why any of the noted exceptions weren't addressed. Mr. Stephanic testified that Complainant used foul language spoke in a raised tone of voice

    Mr. Stephanic stated that he followed Complainant out to the parking lot to try to counsel him further about the problem of operating a truck with a tire lacking proper inflation. He acknowledged that the flat tire was a safety related problem, but the shop would prioritize fixing the other items. For example, the heater control cable would not be a repair priority because it was August.

    Mr. Stephanec states that he tested the tire pressure, which was 40 psi. He told Complainant to get the tire repaired or put more air in it before he left. He doesn't know if Complainant put any air in the tire, before going to the loading facility. Subsequently, he went out to meet Complainant at his first delivery stop and advised him that the shop made a mistake in not fixing the tire. He rechecked the tire pressure and it again was 40 psi.

    Mr. Stephanec then spoke with Mr. Geiger. He advised Geiger that Complainant disregard his directive to put air in the tire and drove a load of hazardous materials on an under inflated tire.

    On cross-examination, Ms. Stephanec testified that he related Complainant's irritation to his frustration at not having the truck fixed it an acceptable manner, but he never believed Mr. Ash was yelling at him personally. He states that Mr. Ash walked the entire distance of the office without indicating that he was upset, but when he got to Stephanec's desk, it was clear that he was upset. After he voiced his opinion, Mr. Ash, according to Mr. Stephanec "resumed that professional demeanor that I have come to know you by and you walked out of the general office area".

    Mr. Stephenec states that he did not consider the in operability of the fuel sending unit to be a safety violation, even though it could cause the truck to run out of fuel if it gave a false reading. However, he agrees that running out of fuel could be a safety problem if the truck could not get off the road. But for DSI drivers, this would not normally be a problem if they pre-inspected their truck. He further testified that he has the authority to take a truck out of service if there is a safety issue, but he did not take the truck out of service, because he told Complainant to get the tire repaired.

whether Respondent discriminated against Complainant. "The explanation provided must be legally sufficient to justify a judgment for the [Employer]." See Texas Dept. Of Community Affairs v. Burdine, 450 U.S. 248, 254-55 (1981) Respondent argues that Complainant was discharged due to poor attitude in that he "had 2 incidents with his supervisors in less than 2 weeks."

    It is recognized that abusive or profane language coupled with defiant conduct or demeanor may justify an employee's discharge on the grounds of insubordination. Huckaby v. U.S. Dept. Of the Treasury, I.R.S. 794 F2d 1041 (5th Cir. 1986).

    In Kenneway v. Matlock Inc. 88-STA-20 (Sec'y June 15, 1989), the Secretary held that the right to engage in statutorily protected activity permits some leeway for impulsive behavior, which is balanced against the employer's right to maintain order and respect in its business by correcting insubordinate acts. Citing NLRB v. Leece-Neville Co. 396 F2d 773,774, (5th Cir. 1968), The Secretary stated:

A key inquiry is whether the employe has upset the balance that must be maintained between protected activity and shop discipline. The issue of whether an employee's actions are indefensible under the circumstances turns on the distinctive facts of the case.

    In the instant case, there is no evidence whatsoever that either incident that formed the basis for Mr. Ash's dismissal threatened the work place. Additionally, there is uncontradicted testimony that it was common to hear intemperate language on the radio and in the workplace. No action was ever taken against any driver solely for intemperate language. There is also evidence that a driver had to sign a statement or form if a violation of law or company policy occured. That did not happen here.

    There is no probative evidence that Mr. Ash had anything but a unblemished work record, nor is there any evidence that any other employee was terminated for improper language or complaining about not fixing his truck. To the contrary, the testimony of Complainant along with that of Mr. Deline and Mr. Bush support my finding that in interperate or vulgar language was commonly used with impunity, and it was not unusual to have repairs performed in an untimely fashion.

    I find that in proferring Mr. Ash's " poor attitude and temperment," as evidenced by the two incidents described herein, Respondent has failed to meet its burden to produce evidence that Ash's discharge was motivated by legitimate, nondiscriminatory reasons. I further find that, in its context, Ash's language was not insubordinate, and Respondent's reason for discharge is not legally sufficient to justify judgement in its favor. Texas Dept. Of Community Affairs v. Burdine 450 U.S. at 255.

    Complainant did not use good judgment in how he expressed himself, or in driving a tank trailer with a defective tire and fuel gauge but, Mr. Stephanec could have insured that the repairs were made or deadlined the truck before Complainant left the yard. His actions are not consistent with his training and experience as a safety official.

    I conclude that Complainant has succeeded in establishing a prima facie case of unlawful discrimination under the STAA, and Respondent he failed to rebut that case.

1. Respondent shall pay Complainant Richard Ash the sum of $1000.00, per week as back pay less required withholdings, commencing the date of his discharge as back pay.

2. Said back pay shall include all fringe benefits, if any, to which Complainant was entitled at the time of his discharge.

3. Interest shall be paid on said backpay in accordance with §6621 of the Internal Revenue Code (26 U.S.C. 6621), computed from date due until date paid.

4. Said back pay award shall be reduced by the earnings of complainant as a driver for Texaco during the period that forms the basis for the back pay computation.

      ROBERT G. MAHONY
      Administrative Law Judge

Washington, D.C.
RGM/krt