DATE: May 1, 1996
CASE NO. 95-STA-43
IN THE MATTER OF
GALE COOK,
COMPLAINANT,
v.
GUARDIAN LUBRICANTS, INCORPORATED,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER OF REMAND
This case arises under Section 405 (the employee protection
provision) of the Surface Transportation Assistance Act of 1982
(STAA), 49 U.S.C.A. § 31105 (West 1994). Before me for
review is the Recommended Decision and Order (R. D. and O.)
issued on January 12, 1996, by the Administrative Law Judge
(ALJ). The ALJ concluded that Complainant Gale Cook (Cook) had
failed to establish that Respondent, Guardian Lubricants,
Incorporated (Guardian), had violated the STAA by terminating
Cook for engaging in protected activity and he therefore
recommended that the complaint be dismissed. Following a
thorough review of the record, including the findings of the ALJ,
I disagree with the recommendation that the complaint be
dismissed.
The facts in this case establish that Guardian was a joint
employer with Conex Freight Systems (Conex) and Seattle Freight,
transport companies to which Cook was assigned while employed by
Guardian. The record also establishes that Guardian knowingly
participated[1] in a continuing violation of the STAA, with
Conex and Seattle Freight, which culminated in Guardian's
termination of Cook. The evidence of record thus establishes
that Guardian's
[PAGE 2]
termination of Cook was motivated, at least in part, by
retaliatory animus against Cook for engaging in protected
activity. Further, I conclude that Guardian has not demonstrated
that it would have terminated Cook in the absence of his
protected activity. Guardian is therefore liable not only for
damages resulting from Cook's termination but also for the loss
of income that Cook suffered during the October-November, 1994
period that he was assigned to work with Seattle Freight. I
therefore remand the case to the ALJ for a hearing regarding the
damages due Cook.
I. Pertinent findings of fact
If the ALJ's findings of fact are supported by substantial
evidence on the record considered as a whole, they are
conclusive. 29 C.F.R. § 1978.109(c)(3)(1995). In the
instant case, the ALJ did not address evidence that is pertinent
to the question of retaliatory intent as well as the joint
employer, continuing violation and knowing participation
issues.[2] Consequently, I find it necessary to render findings
of fact as required for the resolution of those dispositive
issues and to reject those factual findings that are not
supported by the record, considered in its entirety.[3] See
Moyer v. Yellow Freight System, Inc., Case No. 89-STA-07,
Sec. Dec., Oct. 21, 1993, slip op. at 12-13; see generally
Bechtel Const. Co. v. Secretary of Labor, 50 F.3d 926 (11th
Cir. 1995)(affirming Secretary's reversal of ALJ's findings in
case arising under the employee protection provision of the
Energy Reorganization Act, 42 U.S.C. § 5851 (1988));
Simon v. Simmons Foods, Inc., 49 F.3d 386 (8th Cir.
1995)(affirming Secretary's reversal of ALJ's findings in case
arising under the employee protection provisions of the Federal
Water Pollution Control Act, as amended, 33 U.S.C. § 1367(a)
(1988), and the Solid Waste Disposal Act, 42 U.S.C.
§ 6971(a) (1988)). In rendering the necessary factual
findings, I have engaged in a thorough review of the evidence of
record.
As basis for the resolution of any pertinent conflicts
presented in the testimony, see NLRB v. Cutting, Inc., 701
F.2d 659, 667 (7th Cir. 1983); Cotter v. Harris, 642 F.2d
700, 706-07 (3d Cir. 1981); Dobrowlosky v. Califano, 606
F.2d 403, 409-10 (3d Cir. 1979), I note that the testimony of
Carol Guddat (Guddat), Guardian's secretary/treasurer,[4] is
riddled with inconsistencies, particularly with regard to his
business relationships with Conex and Seattle Freight. In
addition, Guddat was extremely evasive about the nature of Cook's
protected activity regarding overweight shipments at Conex.
Guddat's reply to the ALJ in the following exchange provides an
example:
Q. To your knowledge, did Mr. Cook ever refuse to accept a
load from Conex or any other contract carrier or common carrier
[PAGE 3]
because he felt a particular load was illegal?
A. No. I didn't know about this until about a week after it
happened.
Q. When you say "this," what are you talking about?
A. Well when he said he was let go. In other words, we
didn't know that he --
Q. You mean when he was let go by Conex?
A. Yes, right.
T. 106.[5] Similarly confused was Guddat's testimony regarding
what he had been told about Cook's raising of complaints to the
Conex manager, Tony Stafford (Stafford), on October 14, 1994.
The ALJ asked:
Q. Do you know what it was that Mr. Cook allegedly did to --
A. No, I don't.
Q. -- get him kicked out?
A. And it's the same thing with Conex.....Now I talked to
Tony this morning again about it, and he said that Gale was not
let go. He just told him he couldn't use his services any more,
and that there was no -- there wasn't even a discussion about
which load he was going to haul that might have been overloaded.
He just said he was going to haul -- he wanted him to haul some
containers for them and Gale said "I'm not going to haul them
anymore." So there wasn't even a discussion about this container
is overloaded, "I'm just not going to haul it anymore."
T. 137-38. Later in the hearing, Guddat testified as follows:
Q. When you first heard that Conex was refusing to allow Mr.
Cook to pick up any more loads, what was it that Tony told you
then, if --
A. He --
Q. -- you recall. I know you testified at one point about
this, but if you could kind of reiterate it and maybe expand upon
what he said?
A. Yes. What he said was that he had called him in to haul
some containers out of their terminal and Mr. Cook said that he
wasn't going to haul any more of those overloaded containers. Or
maybe it wasn't overloaded, maybe -- I think he said just
[PAGE 4]
containers, period. And Tony had said that what did he mean --
you know, he didn't know what the containers weighed. He just
said he wasn't going to haul them anymore from their location
there at their office. . . . .
T. 142-43. In addition, Guddat's son, acting on Guddat's behalf
in his absence from the hearing initially scheduled in this case,
T. 12, submitted a letter signed by Guddat and addressed to the
ALJ which stated that Cook had called Guardian and "stated that
he was quitting," RX 1. Guddat's son reiterated that point at
that hearing. T. 13. In contrast, Guddat acknowledged at the
second hearing, where both he and Cook were in attendance, that
Cook did not indicate that he quit. T. 121.
Furthermore, Guddat's testimony suggests that his memory of
the events here at issue is faulty. Guddat testified in a rather
detailed manner and without equivocation that Cook delivered the
truck keys and telephone to Guddat in person following his
termination by Guddat. T. 122-23. Following Cook's testimony
that he mailed the truck keys and telephone to Guddat, T. 159,
Guddat recalled that the keys and telephone had indeed been
mailed by Cook,T. 180-83.
In contrast, Cook's testimony was consistent on all
pertinent points throughout two hearings and, although he stated
that he could not recall some details of his last conversations
with Guddat prior to his termination, the content of his
testimony was otherwise quite direct and straightforward.
See Universal Camera Corp. v. NLRB, 340 U.S. 474, 496
(1951); Dorf v. Bowen, 794 F.2d 896, 901-02 (3d Cir.
1986); Kent v. Schweiker, 710 F.2d 110, 116 (3d Cir.
1983); Cutting, Inc., 701 F.2d at 666; Ertel v. Giroux
Brothers Transp., Inc., Case No. 88-STA-24, Sec. Dec., Feb.
16, 1989, slip op. at 12 and n.7 (differentiating between
demeanor based credibility determinations and those based on the
substance of the testimony). The foregoing factors have been
taken into consideration in rendering any necessary findings of
fact. As background for the analysis to follow, I provide the
following factual framework.
Cook worked under a contract agreement with Guardian from
March 13, 1994 until mid-November, 1994.[6] T. 14, 51 (Cook);
RX 2. Pursuant to the agreement with Guardian, Cook was leased a
truck, which was to be maintained by Guardian and operated by
Cook to transport freight or equipment as directed by freight
companies with which Guardian also had lease agreements, which
were located primarily around the port of Seattle. T. 15-
20 (Cook); see R. D. and O. at 2-3. From the beginning of
his employment with Guardian until October 15, 1994, Cook
regularly worked with Conex, a freight company that dispatched
shipments from various pick-up sites serving the Seattle port
area.
[PAGE 5]
T. 18-19, 28-33 (Cook), 143-45 (Guddat); R. D. and O. at 3. Cook
also worked some weekends with other companies having contracts
with Guardian. T. 19, 174-76 (Cook).
While working with Conex, Cook became concerned about the
high incidence of shipments that were over applicable weight
limits that he was being assigned, particularly at the Conex
terminal in Tukwila. T. 34-39, 55-56 (Cook); see R. D.
and O. at 3. On various occasions, Cook relayed his concerns to
Guddat, who responded by advising Cook that the decision of
whether to haul a load or reject it was Cook's. T. 25 (Cook),
101, 141 (Guddat); see R. D. and O. at 3. Prior to
October 14, 1994, Cook did not address his concerns to Conex
personnel, but opted to avoid shipments dispatched from the
Tukwila terminal, and sought assignments from Conex that were
dispatched from the Burlington Northern railroad yard. T. 31-
33; see R. D. and O. at 3.
On October 13, 1994, Cook was summoned to carry refrigerated
containers for Conex from their Tukwila terminal. T. 34-40
(Cook); R. D. and O. at 3. When those containers were weighed
upon delivery at the Seattle port, Cook's concern that they were
overweight was confirmed. T. 34-39 (Cook); R. D. and O. at 3.
The next day, Stafford summoned Cook to the Tukwila terminal to
transport a similar refrigerated container. T. 34-37 (Cook);
R. D. and O. at 3. When Cook advised Stafford regarding the
overweight shipments that he had transported the previous day and
expressed his objection to hauling overweight shipments, Stafford
told Cook that he was fired. T. 37-40, 55-56 (Cook);
R. D. and O. at 3-4. Cook then left the Conex premises. T. 39
(Cook).
About a week later, not having heard any further word from
Stafford, Cook telephoned Guddat and told him that he had been
fired for refusing to transport overweight shipments at Conex.
T. 39-40, 150-51 (Cook); see T. 107 (Guddat); R. D. and O.
at 4. Cook then sought assignments with Seattle Freight. T. 20,
40, 152 (Cook), 112 (Guddat); R. D. and O. at 4. Cook's request
to haul shipments originating at the Burlington Northern rail
yard near the Seattle port was denied by the Seattle Freight
manager, however, and Cook was assigned empty equipment to haul
and was no longer utilized for weekend work. T. 40-42, 46-47
(Cook); see T. 153-54 (Cook); R. D. and O. at 4.
On the evening of Thursday, November 10, Cook telephoned
Seattle Freight to advise that he would not be in the next day,
because of illness. T. 43-44, 73-74 (Cook); see R. D. and
O. at 5. At some point around that date, Cook telephoned Guddat
to discuss with him paychecks for his work with Seattle Freight
that Cook believed to be overdue and told Guddat that he could
not be expected to work without being paid.[7] T. 73-74, 152-62
(Cook). Cook did not, however, indicate that he wished to
terminate his
[PAGE 6]
employment with Guardian. T. 156 (Cook); see T. 121
(Guddat);
R. D. and O. at 5-6. Cook received a paycheck from Guddat over
the weekend of November 11, T. 159-60 (Cook); see T. 116-
18 (Guddat), and on the morning of Monday, November 14 or
Tuesday, November 15, Cook arrived at Harbor Island to pick up
the truck and begin his work for the day, T. 158-69, 190-91;
see T. 131-32 (Guddat). Finding the truck missing, Cook
telephoned Guddat who had picked up the truck and demanded that
Cook return the keys to him. T. 20, 158, 168-70, 190-91 (Cook).
Within a few days, Guddat received the truck keys and cellular
telephone by mail. T. 159 (Cook), 180-83 (Guddat).
II. Pertinent legal standards and analysis
To establish a violation under the employee protection
provision of the STAA, Cook must establish that adverse action
was taken against him because he engaged in activity protected
under either the complaint clause, 49 U.S.C. §
31105(a)(1)(A), or the work refusal clause, 49 U.S.C. §
31105(a)(1)(B). See, e.g., Yellow Freight System, Inc. v.
Reich, 27 F.3d 1133 (6th Cir. 1994), aff'g Smith v. Yellow
Freight System, Inc., Case No.
91-STA-45, Sec. Dec., Mar. 10, 1993.
The ALJ concluded that Guddat had terminated Cook based
solely on Guddat's concern that Cook was refusing to haul
shipments for Seattle Freight until he received payments that
Cook believed were overdue from Guddat. R. D. and O. at 10-12.
In so doing, the ALJ credited the general basis advanced by
Guddat, i.e., that it was too costly for Guardian to
maintain the truck driven by Cook if the truck were not kept
"busy" so as to maximize Guardian's revenues from Cook's hauling
work. R. D. and O. at 11-12. The record indicates, however,
that Cook's failure to keep the truck adequately "busy" was
directly attributable to the repercussions of Cook's raising
concerns about the high incidence of overweight loads at Conex,
which gave rise to his blacklisting by Stafford and the
assignment of less profitable shipments to Cook at Seattle
Freight. Furthermore, as noted supra, the ALJ failed to
consider the issue of Guddat's knowing participation in the
retaliatory actions of Seattle Freight and Conex, as joint
employers.
A. Employee and joint employers
The ALJ properly concluded that Cook, although working under
an independent contractor agreement entered into with Guardian,
RX 2, was an employee as defined under the STAA. R. D. and O. at
7; see 49 U.S.C.A. § 31101(2)(West 1994); 29
C.F.R. § 1978.101(d)(1995).[8] The ALJ failed to
recognize, however, the significance of the control shared with
Guardian by Conex and, alternatively, Seattle Freight, as freight
companies to which Cook was assigned. In cases involving similar
employment arrangements, i.e., the leasing of drivers and
trucks to a
[PAGE 7]
separate business entity that shared employment responsibilities
with the respondent employer, the two entities have been deemed
to be joint employers, for the purpose of determining liability
under the STAA. Settle v. BWD Trucking Co., Inc., and
Red Arrow Corp., Case No. 92-STA-16, Sec. Dec., May 18, 1994,
slip op. at 4 n.2; White v. "Q" Trucking Co., Case No. 93-
STA-28, Sec. Ord., Mar. 7, 1994, slip op. at 3 n.1; Palmer v.
Western Truck Manpower, Inc., Case No. 85-STA-16, Sec. Dec.
on Remand, Mar. 13, 1992, slip op. at 2-3; see 42 U.S.C.A.
§ 31101(3) (West 1994)(definition of "employer").[9]
In this case, Cook's contract was with Guardian, who
provided and maintained the truck tractor and paid Cook from
revenues received from the assigned freight company, RX 2; T. 15,
75 (Cook), 99, 111, 118-19 (Guddat), but Conex and Seattle
Freight each exercised the requisite degree of control over Cook,
through the day-to-day assignment of work, see, e.g., T.
21, 27-43 (Cook), 106-07, 126 (Guddat), and the authority to
reject Cook's services, T. 38-39 (Cook), 138 (Guddat). See
Carrier Corp. v. NLRB, 768 F.2d 778, 781 (6th Cir. 1985);
Palmer, slip op. at 4-5 (citing Tanforan Park Food
Purveyors Council v. NLRB, 656 F.2d 1358, 1360 (9th Cir.
1981), and Sun-Maid Growers of Calif. v. NLRB, 618 F.2d
56, 59 (9th Cir. 1980)).[10] The record also establishes an
interrelationship between the operations of Guardian and each of
these two transport companies, a significant factor in
determining that a joint employer relationship exists for
purposes of adjudication of a STAA complaint, Palmer, slip
op. at 4-5. Guardian was engaged in the business of leasing
trucks to drivers and leasing drivers and trucks to freight
companies for use in hauling freight, whereas both Conex and
Seattle Freight were engaged in the business of transporting
freight. See, e.g., T. 15-17 (Cook), 71 (J. Guddat), 95-
97, 112-14, 138 (Guddat); RX 2.[11] I therefore conclude
that Guardian and Seattle Freight, and Guardian and Conex,
respectively, were joint employers of Cook for purposes of this
adjudication.
B. Protected activity under the complaint clause
The record indicates that all three employers were aware of
Cook's raising of complaints about overweight shipments. As the
ALJ found, Cook had raised safety concerns about overweight
shipments to Guddat beginning in the summer of 1994 and
continuing until his reassignment to Seattle Freight in late
October 1994.[12] T. 24-6, 33, 193 (Cook), T. 101-02 (Guddat);
see R. D. and O. at 3, 8-9. In addition, the record
demonstrates that Cook had raised complaints about overweight
loads directly to Stafford at Conex, on October 14, 1994.
Although the ALJ properly concluded that the work refusal
that Cook engaged in on October 14 would not be protected under
the STAA,[13] Cook's uncontradicted testimony indicates that,
[PAGE 8]
immediately prior to declining to transport a load of freight
that he believed to be overweight on October 14, 1994, he
complained to Stafford about similar refrigerated container
shipments, which Cook had transported the previous day and which
had been weighed as overweight at the destination. T. 34-39,
55-56 (Cook); R. D. and O. at 3; see T. 143-45 (Guddat,
testifying that Stafford told Guddat that he expected Cook to
haul all loads assigned by Conex or none at all); but see
T. 32-33 (Cook, testifying regarding previous occasions when
he had complained to Guddat rather than Conex personnel about
overweight loads). Such complaints clearly constitute a
protected activity under Section 405 of the STAA.[14] See
Yellow Freight System, Inc. v. Martin, 954 F.2d 353, 356-57
(6th Cir. 1992); see generally Brock v. Roadway Express, Inc.,
481 U.S. 252 (1987)(addressing purpose of employee protection
provision of the STAA); see also R. D. and O. at 8-9
(properly concluding that complaints regarding overweight
shipments made to Guddat constitute protected activity).
Furthermore, although Cook apparently did not raise safety
concerns to or otherwise engage in protected activity while
assigned to Seattle Freight, T. 43 (Cook), 102 (Guddat), the
record establishes that the Seattle Freight manager was aware of
Cook's raising of concerns about overweight shipments at Conex,
T. 40-41 (Cook).
C. Continuing violation
The ALJ properly noted that the STAA provides a 180 day
period in which a complainant may challenge a particular adverse
action.[15] R. D. and O. at 7 n.5; see 49 U.S.C.A.
§ 31105(b)(1) (West 1994); 29 C.F.R. § 1978.103 (1995);
see also R. D. and O. at 3. Regulations promulgated under
Section 405 of the STAA, however, provide that discrimination "in
the nature of a continuing violation" will justify tolling the
statutory period. 29 C.F.R. § 1978.103(d)(3) (1995);
seeEllis v. Ray A. Schoppert Trucking, Case No.
92-STA-28, Sec. Dec., Sept. 23, 1992, slip op. at 2-5.
Although Cook has failed to establish that his
October 14, 1994 work refusal was protected and thus that the
ensuing termination action by Stafford at Conex was in violation
of the STAA, see n.13 supra, the record does
establish that, after October 14, when Cook left his assignment
with Conex, he was given discriminatory assignments in
retaliation for his raising complaints about overweight shipments
at Conex.
Furthermore, as discussed infra, these less
profitable assignments directly contributed to Guardian's
termination of Cook. A continuing violation of the STAA thus
occurred, beginning with action taken by Stafford after his
termination of Cook on October 14, 1994, and culminating in the
termination of Cook by Guddat approximately one month later.
Inasmuch as this
[PAGE 9]
series of related discriminatory actions culminated in Guddat's
termination of Cook, which was timely complained of, the series
of events is properly within the ambit of this complaint.[16]
See Elliott v. Sperry Rand Corp., 79 F.R.D. 580, 585
(D.Minn. 1978), cited in Carter v. Electrical Dist. No. 2 of
Pinal Cty., Case No. 92-TSC-11, Sec. Dec., July 26, 1995,
slip op. at 14; cf. Varnadore v. Oak Ridge National
Laboratory, Case Nos. 92-CAA-2, 92-CAA-5, 93-CAA-1, Sec.
Dec., Feb. 5, 1996, slip op. at 73 (holding that ALJ erred in
failing to determine whether any of a series of allegedly
retaliatory acts occurred within the time period provided under
environmental whistleblower statutes there at issue).
D. Retaliatory intent -- Conex and Seattle Freight
The record indicates that Stafford was clearly hostile to
Cook's raising of concerns about overweight shipments. Cook
testified that when he expressed his concern to Stafford about
overweight refrigerated containers on October 14, Stafford
replied, "I don't care," and directed Cook to transport the
shipment that Cook suspected to be overweight "anyway."
T. 36-39; see T. 55. Stafford's response to Cook's
concern suggests a disregard for applicable Federal highway
weight limits; such disregard is consistent with statements from
Guddat's testimony concerning the Conex operation.
For example, Guddat testified that Conex did dispatch
overweight shipments and that Stafford routinely advised drivers
that Conex would reimburse them for any fines levied by the
Department of Transportation for carrying overweight loads.
T. 103-04; see T. 145. Guddat also testified that Conex
has "to have people that are willing to do everything that they
have to do," T. 143, and that Stafford did not want Cook working
with Conex if "he didn't want to haul any" of the shipments
assigned, T. 144.
When possible, Cook had worked at the Northern railway yard
near the Seattle port while assigned to Conex, because it
appeared that fewer overloaded shipments were assigned there than
at other Conex pick-up sites. T. 27-33 (Cook). Following his
move to work with Seattle Freight in late October, 1994, Cook
asked to be assigned to the Burlington Northern railway yard, but
the Seattle Freight manager denied his request, stating, "No, you
can't work the rail because of Tony [Stafford]." T. 41-42. Cook
testified that Stafford had worked for the railroad company for
several years and was "a big wheel" in the freight industry
serving the Seattle port. T. 41-43, 60-61. Cook was then
assigned by Seattle Freight to transport empty chassis and
containers, which was much less profitable than transporting full
loads of freight. T. 41-42, 174 (Cook); see T. 141-45
(Guddat).
[PAGE 10]
This evidence clearly supports a finding that Cook was the
target of blacklisting by Stafford and that such blacklisting
resulted in discriminatory assignments by Seattle Freight.
See Earwood v. Dart Container Corp., Case No. 93-STA-
0016, Sec. Dec., Dec. 7, 1994, slip op. at 2-3, and cases
cited therein. Guddat's testimony suggested that the
difficulty between Stafford and Cook arose from a personality
conflict, T. 138-39, but he did not provide any factual support
for that conclusion and nothing in this record contradicts the
evidence establishing that Stafford was hostile to Cook as the
result of his protected activity.The type of shipments, i.e., empty equipment,
that Cook was assigned by Seattle Freight makes clear the
connection between Cook's assignments with that company and
retaliatory animus emanating from Cook's October 14 exchange with
Stafford about overweight shipments. See generally Esmark,
Inc. v. NLRB, 887 F.2d 739, 747-48 (7th Cir. 1989)
(discussing concept of "inherently destructive" conduct, which
carries with it unavoidable consequences that the employer must
have foreseen and must have intended, as enunciated in
National Labor Relations Board v. Great Dane Trailers,
Inc., 388 U.S. 26 (1967)). The assigning of empty container
shipments to Cook obviated the need for any discussions about
overweight shipments. See T. 40-41 (Cook, testifying that
he did not recall any problems with overweight shipments arising
at Seattle Freight, but also testifying that he was hauling empty
equipment).
These assignments by Seattle Freight had an adverse effect
on Cook because such assignments were much less profitable than
shipments of freight. T. 174-76 (Cook, testifying that his
income dropped by approximately one-half while working only with
Seattle Freight).[17] Cook also testified that his working
conditions with Guardian seemed to deteriorate after the
October 14 exchange with Stafford, T. 170-71, that he had kept
the truck "busy" until he was terminated from Conex, T. 163,
174-75, and that he thought that Guddat wanted him "to quit after
leaving Conex, because of the problems that we were having there
with the illegal loads," T. 167-68; see T. 50-51, 156-57
(Cook), and especially because "Conex was a big customer," T. 51.
Furthermore, Cook testified that he ultimately filed a complaint,
months after he left Guardian, because he felt that he was
continuing to be discriminated against because of his complaints
about overweight shipments, and he decided "either I file a
complaint or [I] stop driving on the waterfront." T. 56-57;
see T. 60-61 (Cook), 88-89 (J. Guddat). As discussed in
the following analysis, the record supports Cook's allegation
that the October 14 exchange with Stafford, in which Cook raised
his concerns regarding overweight shipments, contributed to
Guddat's termination of Cook approximately one month later.
[PAGE 11]
E. Retaliatory intent -- Guardian
The ALJ concluded that Cook failed to establish that
Guddat's termination of Cook was motivated, even in part, by
Cook's protected activity. R. D. and O. at 8-10; see Yellow
Freight System, Inc., 27 F.3d at 1138. The ALJ
properly noted that Cook had raised safety concerns about
overweight shipments to Guddat, R. D. and O. at 3, 8-9; see
T. 24-5, 33, 193 (Cook), T. 101-02 (Guddat), and that Guddat
was aware that Cook's complaints about overweight shipments from
Conex contributed to Stafford's termination of Conex' business
relationship with Cook on October 14, 1994, R. D. and O. at 4;
see T. 106-07, 145 (Guddat). The ALJ erroneously
concluded, however, that the evidence did not indicate that
"Guddat was particularly hostile" to Cook's complaints about
overweight shipments, R. D. and O. at 11. That conclusion does
not reflect proper consideration of Guddat's testimony that
demonstrates a disregard for applicable weight limits and an
emphasis on profits at the expense of safety.
To summarize, Guddat's testimony indicates that he had no
interest in correcting the high incidence of overweight Conex
shipments complained of by Cook and felt no obligation to assist
Cook in pursuing that issue with Conex. Furthermore, Guddat's
testimony, as a whole, demonstrates that he was hostile to Cook's
raising of concerns about overweight shipments and terminated
Cook, at least in part, because his protected activity on
October 14, 1994 had ultimately resulted in a significant
decrease in Guardian's revenues. Finally, the inconsistent and
evasive substance of Guddat's testimony evinces an intent to
obfuscate the facts pertinent to this complaint, and thus further
supports a finding of retaliatory intent. See generally St.
Mary's Honor Center v. Hicks, 113 S.Ct. 2742, 2749, 125 L.Ed.
2d 407, 418-19 (1993)(addressing role of defendant's mendacity in
drawing inference of retaliatory intent).
Cook testified that he had expected Guddat to respond to his
complaints about the high incidence of overweight loads assigned
by Conex by contacting Conex in the interest of resolving the
issue. T. 192-93; see T. 31. Cook testified regarding
the provision in his contract with Guardian requiring that he
operate the truck in a safe manner and in compliance with
applicable laws, T. 26, 55, 63; see RX 2, repeatedly urged
that Guddat was remiss for failing to address his concern to
Conex, T. 24-27, 88-89, 140-41, 170-71, 192-93, and questioned
Guddat at hearing regarding why Guddat did not address Cook's
concerns to Conex, T. 134-136. Cook testified that Guddat's
response when Cook discussed concerns about overweight loads with
Guddat was "Turn them down, haul 'em, or quit." T. 25. Guddat
characterized his response to Cook as a reminder that, pursuant
to the terms of his
[PAGE 12]
contract agreement, the decision regarding whether to refuse to
haul a load based on a concern that it was overweight was
Cook's.T. 101, 141. The record, taken as a whole,
compels the conclusion that Guddat's response was tantamount to a
warning to Cook that he could not expect any support from Guddat
if he complained about the high incidence of overweight shipments
at Conex and that Cook would be acting at the risk of any adverse
consequences that might result.
Further support for this conclusion is provided by Guddat's
testimony concerning the hauling of overweight shipments by
trucks leased to freight companies by Guardian. Although Guddat
asserted that Guardian did "not condone doing anything illegal,"
T. 101, he nonetheless defended his failure to address Conex
management regarding the overweight issue as follows, "Because as
far as we were concerned, we were providing the truck to Conex to
do whatever they wanted done and it was between the drivers and
Conex to work things out." T. 136. Furthermore, at hearing,
Guddat was critical of Cook's attempt to avoid the overweight
issue by avoiding what Cook believed to be the source of most of
the overweight shipments, the Conex Tukwila terminal; Guddat
testified that Conex has "to have people that are willing to do
everything that they have to do." T. 143; see T. 27-29;
but see T. 33 (Cook, testifying that Guddat did not
interfere with his working "most of the time" at the Seattle port
rather than at the Tukwila terminal). Similarly, Guddat
testified approvingly regarding Stafford's announced policy of
reimbursing drivers who were fined by the Department of
Transportation for carrying overweight loads. T. 103-04.[18]
Guddat also emphasized that "[A]ll of the different freight
companies have a problem like that . . . ." T. 103-04. The
clear import of this testimony is that Guddat viewed the hauling
of overweight shipments to be a routine occurrence in the
ordinary course of business, not a proper subject for complaint
by drivers like Cook.
At hearing, Guddat attempted to justify his failure to
address Cook's complaints to Conex by down-playing the extent of
Guardian's business relationships with Conex and Seattle Freight.
Guddat sought to distance Guardian from Conex and other freight
companies to which Cook had been assigned, stating, "[W]e have no
contact with these people that he's working for,"
T. 101, and "I'm not the party that's contracting with them,"
T. 137. These statements are inconsistent with several other
statements made by Guddat, and Cook, at hearing concerning
contracts entered into between Guardian and the freight companies
to which Cook was assigned. See n.11 supra.
Guddat was also evasive concerning the issue of whether
Conex played a role in some containers being overloaded. In
response to the ALJ's question regarding whether Conex loaded
[PAGE 13]
certain containers that were assigned to Cook for transport,
Guddat testified, "Probably. Could be. I don't know whether
these containers were containers that they loaded or not. That
really is not my business to go in and tell them how to run their
business. . . ." T. 142. These statements clearly demonstrate
Guddat's complete lack of interest in pursuing with Conex the
question of correcting the high incidence of overweight shipments
being assigned by Conex.
Similarly non-responsive was Guddat's testimony indicating
his view that a truck driver could not legitimately question
whether a shipment was overweight without first weighing it.[19]
Specifically, Guddat testified that if Cook had taken an
overweight shipment to be weighed and then returned it to a
freight company, refusing to transport it because overweight,
Guardian would "have a legal right" to intervene on Cook's behalf
and would have done so. T. 142; see T.141, 145.
Guddat also stated that Cook would have been "perfectly" within
his rights to refuse to haul an assigned shipment if "he knew" it
was overweight. T. 102-03. Guddat pointed out, however, that
the drivers "really don't know what [the shipment] weighs unless"
it is taken to be weighed.[20] Id.
Guddat appears to be relying on the distinction between
a protected work refusal and an unprotected work refusal, see
nn. 13, 15 supra, which is not at issue here.
Guddat's statements do not address the issue of complaints
concerning the high incidence of overweight containers assigned
by Conex, which is the protected activity that is at issue in
this case. Further, Guddat's testimony on this point disregards
the fact that Cook could, and did, properly raise concerns about
overweight shipments based on his experience with Conex shipments
that were in fact confirmed to have been overweight. T. 34-39
(Cook); see n.14 supra. Finally, Guddat's
explanation wholly sidesteps the issue of why he did not consider
Guardian to be obligated, if not under the STAA then pursuant to
contract, to act on Cook's complaints in the interest of ensuring
the legal operation of the truck leased to Conex.[21]
In sum, Guddat has failed to refute the evidence that
establishes that he was hostile to Cook's complaints by providing
an independent basis for his failure to discuss the overweight
shipments issue with Conex management. Cook testified
that he thought that Guddat was more concerned about "keeping the
revenues coming in" than compliance with weight limits.
T. 52-53, 55-56. This record clearly supports that conclusion.
See generally Caimano v. Brink's, Inc., Case No. 95-STA-4,
Sec. Dec., Jan. 26, 1996, slip op. at 26-27 (addressing
employer's emphasis on profits at the expense of safety).
As indicated supra at n.1, the Secretary has held
that the
[PAGE 14]
STAA provides strict liability for the discriminatory conduct of
joint employers. Palmer, slip op. at 3-6. The United
States Court of Appeals for the Ninth Circuit affirmed the
Secretary's decision in Palmer without reaching the issue
of strict liability. Western Truck Manpower, Inc. v. United
States Dep't of Labor, 12 F.3d 151, 153-54 (9th Cir. 1993).
As the record in this case supports a finding of vicarious
liability based on Guddat's knowing participation in the
discriminatory conduct of Conex and Seattle Freight against Cook
after October 14, 1994, I need not rely on a theory of strict
liability in this case.
Knowing participation is not established when an employer
has merely acquiesced in the discriminatory conduct of a joint
employer, as "an entirely innocent and unconscious instrument" of
the perpetrating employers, Carrier Corp. v. NLRB, 768
F.2d 778, 783 (6th Cir. 1985) (quoting NLRB v. Gluek Brewing
Co., 144 F.2d 847, 855 (8th Cir. 1944)). In this case,
however, Guardian is vicariously liable based on Guddat's
knowledge of the discriminatory conduct and his knowledge of the
illegal motivation for the conduct. See Capitol EMI Music,
Inc., 311 N.L.R.B. 997 (1993) and cases cited therein; cf.
Carrier Corp., 768 F.2d at 783.
Guddat testified that, on a weekly basis, he collected a
copy of the paperwork indicating the hauling work done by Cook
for each day. T. 125; see T. 107. Such paperwork would
have indicated the dollar amount due to be paid per mile by the
freight company for each shipment. See RX 2.
Furthermore, testimony by Guddat and his son, Jeff Guddat,
indicates that they were aware of "the situation that [Cook] was
having down at the port." T. 88 (J. Guddat), T. 123-24 (Guddat).
Assuming, arguendo, that Guddat did not have direct
knowledge that Stafford had interfered with Cook's working
relationship at Seattle Freight, the record nonetheless indicates
that Guddat knew that Cook was being assigned the less lucrative
shipments of empty equipment while he was working with Seattle
Freight.
In addition, Guddat was put on notice that Seattle Freight
was retaliating against Cook for his protected activity by the
very nature of the conduct, i.e., the assignment of loads
of empty equipment to a driver who had raised questions
concerning overweight shipments. See Esmark, Inc., 887
F.2d at 747-48 (discussing concept of "inherently destructive"
conduct). The record thus supports the inference that Guddat
knew that Seattle Freight was acting on an illegal motive. Also,
as discussed previously, Guddat knew of Stafford's hostility
toward Cook, and Guddat shared Stafford's cavalier attitude
toward weight restrictions. Finally, as discussed supra,
Guddat culpably failed to address Cook's complaints about the
high incidence of overweight shipments to Conex. The record thus
supports the
[PAGE 15]
conclusion that Guddat knowingly participated in the
discriminatory conduct of Conex and Seattle Freight, as joint
employers. Cf. Capitol EMI Music, Inc., supra (holding
joint employer not vicariously liable because it had no knowledge
of improper motive of discriminating employer); Palmer,
slip op. at 10 (holding that employer's failure to enforce
contractual obligation of joint employer supported a finding that
employer knowingly participated in discriminatory conduct).
The preponderance of the evidence thus establishes that
Guddat was hostile to Cook's protected activity and that he
knowingly participated in the retaliatory conduct of Conex and
Seattle Freight. The record also establishes that the diminished
revenues earned by Cook as a result of such retaliatory conduct
contributed to Guddat's termination of Cook approximately one
month after Cook's termination by Conex.
Cook questioned Guddat at hearing concerning his "haul 'em
or quit" approach to the overweight shipments issue, specifically
asking if Guddat merely expected to replace Cook with another
driver who would not question such practices. T. 141.
Particularly in view of the evidence indicating that, at the time
of hearing, Guardian had three trucks in operation and all three
were working for Conex, T. 121, 182 (Guddat); see T. 112
(Guddat), I conclude that such approach was indeed Guddat's
intention.[22] Guddat's testimony clearly indicates that he
considered Cook to be a business liability following Cook's
exchange with Stafford on October 14, 1994 and his inability to
keep the Guardian truck "busy" thereafter. In responding to the
ALJ's question regarding why Guddat had not rehired Cook later to
drive one of his idle trucks, Guddat stated:
[I]f we couldn't work it at Conex, we had a definite problem
there, so that we wouldn't be able to put -- you know, if
the drivers couldn't work -- if he -- if he couldn't work
for Conex, then he was definitely limited just to where he
could work. And as far as we were concerned, if -- if he
wasn't willing to keep the truck busy, it was actually a
detriment to us, because every day that the truck sits, it
costs us money.
T. 123-24. Guddat's statement that he terminated Cook because he
had not kept the truck busy is tantamount to an admission that
Cook was terminated, at least in part, for engaging in protected
activity. See Blake v. Hatfield Electric Co., Case No.
87-ERA-4, Dep. Sec. Dec., Jan. 22, 1992.
I therefore conclude that Cook has established that he was
terminated, at least in part, in retaliation for his protected
activity. See Yellow Freight System, Inc., 27 F.3d at
1138.
[PAGE 16]
Consequently, Guardian may avoid liability only by establishing
that it would have taken the adverse action in the absence of the
protected activity. See Yellow Freight System, Inc., 27
F.3d at 1140; Williams v. Carretta Trucking, Inc., Case
No. 94-STA-07, Sec. Dec., Feb. 15, 1995, slip op. at 10-11;
Asst. Sec. and Kovas v. Morin Transport, Inc., Case No.
92-STA-41, Sec. Dec., Oct. 1, 1993, slip op. at 6 (direct
evidence case). On the following basis, I conclude that Guddat
has not established that he would have terminated Cook in the
absence of his protected activity.
Initially, I note my disagreement with the ALJ's conclusion
that Guddat's failure to terminate Cook when he was made aware of
the October 14, 1994 incident at Conex indicates a lack of
retaliatory animus towards Cook, R. D. and O. at 11. Guddat
testified concerning the exceptional difficulty of attracting
drivers to work under contract with Guardian, T. 114, 120-21,
and, although Guddat raised some vague complaints about Cook's
performance, see, e.g., T. 107-11, 136-38, he also
testified about other drivers who were apparently much less
dependable than Cook had been, working only a week and then
quitting without advising Guddat, T. 114. In addition, at the
time that Guddat became aware of Cook's termination by Conex,
approximately a week after the October 14 incident, it is likely
that Guddat was not yet aware that Cook would be blacklisted by
Stafford and limited to less profitable assignments by Seattle
Freight.
I similarly reject the conclusion that Cook's reluctance to
drive other trucks that he was offered by Guardian when his
leased truck was being serviced provides any justification for
Guddat's termination of him. See R. D. and O. at 12. As
noted by Cook, T. 163-67, his contractual agreement with Guardian
required that he drive a specific truck. RX 2. In addition, and
on a more practical level, Cook explained his concern about his
driving trucks that were leased to other Guardian drivers and
vice versa, testifying to one incident in which the truck leased
to him had been driven by another Guardian driver and incurred
tire damage as a result. T. 165-67. Cook's testimony also
indicates that Guddat had exaggerated the number of occasions on
which such offers of alternate trucks were made, as most repairs
were made by Guardian to its trucks over weekends, and not during
Cook's regular work week. T. 165-67.
In conclusion, I note the following factors. The record
establishes that Guddat was hostile to Cook's protected activity.
The record also demonstrates Guddat's view that Cook's complaints
about overweight shipments had unnecessarily cost Guardian
revenues derived from Cook's work with Conex. Furthermore, the
record demonstrates that Guddat knowingly participated in the
discriminatory conduct of Conex and Seattle Freight toward Cook,
which occurred after Cook's termination at Conex. Finally,
[PAGE 17]
Guddat effectively admitted that Cook's protected activity at
Conex contributed to Guddat's conclusion that Cook had become a
business liability, which conclusion precipitated Guddat's
termination of Cook. I therefore conclude that Guddat was
anxious to terminate Cook based on his protected activity, and
that Cook's absence on November 11, 1994, and the
misunderstanding about Cook's "overdue" paychecks provided an
opportunity for Guddat to advise Cook that he was cancelling
their contract. In view of the foregoing, I conclude that Guddat
has failed to establish that he would have terminated Cook in the
absence of his protected activity. See Yellow Freight System,
Inc., 27 F.3d at 1140.
ORDER
I find Respondent Guardian Lubricants, Inc., to be
individually liable for its discrimination against Complainant in
violation of Section 405 of the STAA based on its termination of
Complainant in November 1994, and also liable based on its
knowing participation in the discriminatory conduct engaged in by
Respondent's joint employers Conex and Seattle Freight between
October 14, 1994 and November 15, 1994. Accordingly, Respondent
is ORDERED to offer Complainant reinstatement to his position as
a truck driver, or to a comparable position; to refrain from
engaging in or knowingly participating in discriminatory conduct
toward Complainant; to pay all back pay and other appropriate
compensation, with interest, as provided for under the STAA; and
to pay Complainant's costs and expenses incurred in bringing this
complaint, including a reasonable attorney's fee. This case is
hereby REMANDED to the ALJ for such further proceedings as may be
necessary to establish Complainant's complete remedy, consistent
with this decision.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1]
Under the STAA, the Secretary has held that a joint employer
may be held vicariously liable, even in the absence of knowing
participation, for the discriminatory acts of another. Palmer
v. Western Truck Manpower, Inc., Case No. 85-STA-16, Sec.
Dec. on Remand, Mar. 13, 1992, slip op. at 3-6. In view of the
finding that Guardian knowingly participated in the
discriminatory acts of joint employers Conex and Seattle Freight,
I need not rely on a theory of strict liability in this case.
See Western Truck Manpower, Inc. v. United States Dep't of
Labor, 12 F.3d 151, 153-54 (9th Cir. 1993).
[2]
Inasmuch as Cook's May 6, 1995 complaint alleged a continuing
violation resulting from protected activity engaged in at Conex,
and evidence pertinent to activity protected under both the work
refusal clause and the complaint clause was adduced at hearing,
it is unnecessary to remand this case for further development of
the evidence. Cf. Caimano v. Brink's, Inc., Case No. 95-
STA-4, Sec. Dec., Jan. 26, 1996, slip op. at 9 n.5
(distinguishing Yellow Freight System, Inc. v. Martin [Moyer],
954 F.2d 353 (6th Cir. 1992) in which the court remanded the
case for adjudication under the complaint clause).
[3]
I note that the illumination of these issues was impeded by the
pro se status of the parties, which added considerably to
the burden of the ALJ in conducting the hearing in this case.
[4]
Although Guddat testified that his wife, Joyce Guddat, was the
president of the family business, T. 93, Mrs. Guddat did not
appear at hearing and the record clearly demonstrates that Guddat
was the Guardian manager. See, e.g., T. 3-4 (J. Guddat).
[5]
The following abbreviations are used herein for references to
the record: Hearing Transcript, T.; Complainant's Exhibit, CX;
Respondent's Exhibit, RX. Both Jeff Guddat and Carol Guddat
testified at hearing. References to the testimony of Jeff Guddat
are designated "J. Guddat".
[6]
In view of the conclusion, discussed infra, that the
events immediately preceding Guddat's termination of Cook did not
play a determinative role in Guddat's decision, it is
unnecessary to determine the exact day, Monday, November 14, or
Tuesday, November 15, 1994, that Cook was terminated. See
T. 51-2, 79-80, 190; R. D. and O. at 6.
[7]
The reasons for this delay in payment by Seattle Freight were
explained by Guddat in his hearing testimony. T. 186-88.
[8]
The STAA defines "employee" as follows:
a driver of a commercial motor vehicle (including an
independent contractor when personally operating a commercial
motor vehicle), a mechanic, a freight handler, or an individual
not an employer, who--
(A) directly affects commercial motor vehicle safety in the
course of employment by a commercial motor carrier; and
(B) is not an employee of the United States Government, a
State or a political subdivision of a State acting in the course
of employment.
42 U.S.C.A. § 31101(2) (West 1994).
[9]
As in Palmer, only one of the joint employers has been
named as respondent in this complaint. Cf. White, slip
op. at 1-2 (addressing complainant's motion to join additional
joint employers).
[10]
As this case involves an independent contractor arrangement, a
narrower range of employment responsibilities are involved than
those discussed in Palmer. An agreement entitled
"Acknowledgement of Independent Contractor" between Guardian and
Cook provided that Guardian would not deduct any taxes from
payments to Cook and Cook would not be entitled to any fringe
benefits. RX 2.
[11]
Although he repeatedly acknowledged that he entered into lease
agreements with these companies, see, e.g., T. 94-96, 113-
14, 125-26, 180-82, 192, Guddat attempted throughout the hearing
to minimize the extent of Guardian's business arrangements with
Conex and Seattle Freight, see, e.g., T. 101, 137, and he
did not offer copies of the lease agreements with these companies
into evidence.
[12]
Cook had also raised concerns to Guddat regarding the
mechanical condition of the truck he had leased from Guardian as
well as the hours of service being requested by Conex. T. 24-26,
49-50 (Cook), 101-02, 105 (Guddat); see R. D. and O. at 8-
9. Although these safety concerns may have contributed to the
retaliatory animus demonstrated on this record, the following
analysis focuses on the evidence of record concerning retaliation
for Cook's complaints regarding the high incidence of overweight
shipments assigned by Conex, which clearly contributed to such
animus.
[13]
The evidence does not establish, as is required for work
refusal protection under the STAA, that such refusal was based on
knowledge that the operation of the truck would violate a
Federal safety standard (49 U.S.C. § 31105(a)(1)(B)(i)) or
an allegation that Cook was reasonably apprehensive that he or
the public would be seriously injured due to an unsafe condition
if he had accepted the load assigned by Stafford (49 U.S.C.
§ 31105(a)(1)(B)(ii)). R. D. and O. at 9 n.8; see
T. 34-39 (Cook); cf.Cook v. Kidimula
International, Inc., Case No.
95-STA-44, Sec. Dec., Mar. 12, 1996 (dismissing complaint because
work refusal not covered under actual violation clause, no
allegation regarding reasonable apprehension clause made, and no
covered complaints made to employer); seegenerally
Hadley v. Southeast Coop. Service Co., Case No. 86-STA-24,
Sec. Dec.,
June 28, 1991, slip op. at 2-4and cases cited therein
(comparing differing requirements for work refusal protection
under the actual violation or "when" clause, 49 U.S.C. §
31105(a)(1)(B)(i), and the reasonable apprehension or "because"
clause, 49 U.S.C.
§ 31105(a)(1)(B)(ii)).
[14]
Cook testified that his complaints about the high incidence of
overweight shipments assigned by Conex were based on firsthand
experience. Cook testified, without contradiction, that he had
seen "interchange" paperwork, which was prepared attendant to the
transfer of container shipments from the dock to the ships in
port, that indicated that certain shipments were several thousand
pounds over the 80,000 pound limit set by the Department of
Transportation for the truck driven by Cook. T. 32 (Cook,
estimating that 75% of Conex shipments that he carried from the
Conex Tukwila terminal to the port were overweight, based on the
interchange paperwork for each shipment); see T. 36
(Cook), 66 (J. Guddat testifying regarding the weight limit for
Guardian trucks); Cook's letter of Sept. 7, 1995 to Department of
Labor Regional Administrator Richard S. Terrill (referring to
interchange paperwork).
[15]
The ALJ properly noted that the October 14, 1994 action taken
by Conex to terminate its business relationship with Cook falls
outside the 180 day statutory period for the filing of complaints
under the STAA and was not timely complained of by Cook. R. D.
and O. at 7 n.5; see 49 U.S.C.A. § 31105(b) (West
1994); see also
R. D. and O. at 3. Moreover, as noted supra, the
record does not establish that Cook's work refusal on October 14
qualified for protection under the STAA.
[16]
The ALJ found that Cook filed his complaint on May 6, 1995,
based on a letter that Cook wrote to the Occupational Safety and
Health Administration following receipt of a reply to a April 27,
1995 letter sent by Cook to the Department of Transportation.
R. D. and O. at 6-7; see ALJ Exhibit 1; T. 57-60. In view
of the conclusion that Cook's termination by Guardian was the
culmination of a continuing violation and that the 180 day filing
period is thus tolled pursuant to 29 C.F.R. §
1978.102(d)(3), I need not address the question of whether Cook's
letter of
April 27, 1995 constituted a filing of his complaint in the wrong
forum, see Ellis, slip op. at 4; but see Lewis v.
McKenzie Tank Lines, Inc., Case No. 92-STA-20, Sec. Dec.,
Nov. 24, 1992 (construing 29 C.F.R. § 1978.102(d)(3)).
[17]
Some portion of this decrease in income was attributable to the
weekend hauling work that Cook had engaged in at the Seattle port
prior to being terminated by Conex. T. 174-76.
[18]
Guddat was nonetheless anxious to defend Conex in regard to
overweight shipments, as indicated by the following exchange with
the ALJ:
Q. Well have any other drivers complained to you about Conex
giving them overloaded containers?
A. No.
Q. Do you know if Conex has a particular reputation in this
area as --
A. No, I don't think so.
Q. -- overloading? You don't think so or you don't know?
A. I don't -- no, I -- well I've never heard of it. I mean,
like I say, all of the different freight companies have a problem
like that . . . .
[19]
Guddat's statement that it was Cook's decision regarding
"whether to legalize the load or haul it or not haul it or
whatever," T. 101, suggests that a driver could question
whether an assigned shipment was overweight and seek corrective
action rather than simply refusing to haul the shipment, which
action would put a driver at risk of acting outside the
protection of the STAA, see n.13 supra. The
conflict in Guddat's statements on this point represents yet
another inconsistency in his testimony.
[20]
Guddat submitted a magazine article concerning the need for a
weigh station at the site where trucks picked up container
shipments, so that the weight of the shipment could be
ascertained prior to acceptance by the driver. T. 102-03; RX 3.
[21]
Any valid contract or lease entered into between Guardian and
Conex or Seattle Freight would contain a provision, either
expressly included by the parties or implied by operation of law,
requiring that the truck be operated in a lawful manner. See
generally 17 Am.Jur.2d Contracts § 155 (1995).
[22]
Like its counterpart in Carrier Corp., Guardian suffered
losses concomitant to those of the employees who were
discriminated against. Unlike the innocent employer in
Carrier Corp., however, Guardian has had an opportunity to
recoup those losses, through the trucks and drivers it has since
leased to Conex.
