DATE: January 11, 1996
CASE NO. 95-STA-33
IN THE MATTER OF
FRANK E. SHOUP,
COMPLAINANT,
v.
KLOEPFER CONCRETE COMPANY,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
Before me for review is a Recommended Decision and Order (R.
D. and O.) issued on August 24, 1995 by the Administrative Law
Judge (ALJ) in this case arising under the employee protection
provision of the Surface Transportation Assistance Act of 1982
(STAA), 49 U.S.C.A. § 31105 (West 1994). Complainant Frank
Shoup (Shoup) alleges that Respondent Kloepfer Concrete Company
(Kloepfer) violated the STAA by discharging him for refusing to
drive a vehicle overloaded with cement to the point that state
bridge weight requirements would have been violated. After a
review of the entire record I accept the decision of the ALJ and
find that Shoup is not entitled to relief.
BACKGROUND
Kloepfer is a corporation which operates cement mixer trucks
that transport concrete and similar materials in the State of
Idaho. Shoup was hired as a truck driver by Kloepfer on
March 16, 1993, and was promoted to the position of assistant
batchman six months later. On July 30, 1993, Shoup was involved
in an accident in which the vehicle he was driving, a train mixer
with extra axles as required by Idaho bridge weight requirements,
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overturned. After this accident Shoup made arrangements with
Kloepfer to only drive regular cement mixers. Shoup claimed that
train mixers were inherently unsafe. T.[1] 41-44.
On April 3, 1995, Shoup was scheduled to deliver an eight
cubic yard load in a regular cement mixer from Kloepfer's Twin
Falls plant. While Shoup was preparing to make his scheduled
delivery, Steve Straubhaar (Steve), Yard Supervisor and Batchman
at Kloepfer's Twin Falls plant, changed the order from eight
cubic yards to ten cubic yards. Ten cubic yards of concrete
would have caused Shoup's truck to be overweight. Shoup told
Steve that he would no longer operate trucks that were
overweight. T. 44. Steve then told Shoup that if he would not
run the load, his services were no longer needed. Shoup asked if
he was being fired and Steve responded that he could not make the
sole decision regarding firing and proceeded to call Terry
Straubhaar (Terry), Manager of Kloepfer's Twin Falls plant.
Shoup, Steve, and Terry conferred, and during this
conference Steve repeated his desire to fire Shoup. Terry
thereupon noted that Ernest Straubhaar (Ernest), Kloepfer's Vice
President, needed to be involved in the decision. Terry called
Ernest, and Ernest suggested that Shoup operate a train mixer
located at Kloepfer's Paul, Idaho yard. This alternate truck had
the capacity to transport a heavier load without being in
violation of rules and regulations regarding truck weights. T.
97. Shoup declined the offer to operate a train mixer declaring
that he had already been fired, and then left. T. 99. Shoup
claims that he refused to operate the train mixer because they
are inherently unsafe and that he previously made this belief
known to Kloepfer. T. 32, 34, 37.
DISCUSSION
The issue to be resolved in this case is whether Shoup's
employment with Kloepfer was terminated because he engaged in
protected activity under the STAA. In order to establish a
prima facie case for relief under the STAA an employee
must show that he engaged in protected conduct, that he was the
subject of adverse employment action, and that there was a causal
link between his protected activity and the adverse action of his
employer. Moon v. Transport Drivers,Inc., 836
F.2d 226, 228 (6th Cir. 1987).
Shoup alleges that his refusal to drive was protected
activity. Under the "refusal to drive" provision of the STAA,
an employer may not discharge an employee because:
(B) the employee refuses to operate a vehicle because--
(i) the operation violates a regulation, standard,
or order of the United States related to commercial
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motor vehicle safety or health; or
(ii) 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.A. § 31105(a)(1)(B) (West 1994).
I conclude that Shoup's refusal follow Steve's order to
drive the overweight regular mixer was protected activity
pursuant to the STAA. I also conclude that Steve, in violation
of the STAA, wanted to discharge Shoup because of this protected
activity. However, Steve's recommendation to discharge Shoup was
not a final company decision.
Steve did not have the authority to fire Shoup. Steve
sought the authority from Terry. T. 93. Terry deferred to
Ernest who chose not to implement Steve's recommendation and
instead offered an alternative to Shoup that would have made the
delivery legal. T. 97. Shoup knew that Ernest refused to
implement Steve's discharge recommendation because he was told of
Ernest's decision to have him deliver the load in a train mixer.
T. 99. Shoup responded to Ernest's solution by walking out and
stating that he had already been fired. This action constituted
a voluntary quit.
Additionally, I conclude that Ernest's decision to offer a
train mixer to deliver the load was a reasonable solution to
Shoup's dilemma and not a constructive discharge. Under the
STAA, a constructive discharge occurs where:
working conditions would have been so difficult or
unpleasant that a reasonable person in the employee's
shoes would have felt compelled to resign ...
Furthermore, it is not necessary to show that the
employer intended to force a resignation, only that he
intended the employee to work in the intolerable
conditions.
Hollis v. Double DD Truck Lines, Inc., Case No. 84-STA-13,
Sec. Dec., March 18, 1985, slip op. at 8-9. The record does not
support a conclusion that Kloepfer intended to force Shoup to
work under intolerable conditions. Even though Shoup's general
position that train mixers were unsafe was a matter of record,[2]
Kloepfer did not create an intolerable working condition by
asking Shoup to operate a train mixer. No evidence was presented
to show that other drivers or employers believed that train
mixers, vehicles widely used in the industry, are inherently
unsafe. T. 10, 14, 18, 78; R. D. and O. 6-8. Ernest's instruction to drive a train mixer did not constitute a
constructive discharge.
For the foregoing reasons the decision of the ALJ is
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affirmed and the complaint is dismissed.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, DC
[ENDNOTES]
[1]
T. refers to the transcript of the hearing in this case that
took place on June 28, 1995.
[2]
Shoup's internal complaint regarding the inherently unsafe
condition of train mixers, while potentially protected activity,
is not sufficient to prevail under the complaint section of the
STAA, 49 U.S.C. §31105 (a)(1)(A). No adverse action was
taken against him for engaging in this protected activity.
