Office of Administrative Law Judges 2600 Mt. Ephraim Avenue
Camden, NJ 08104
(856) 757-5312 856-757-5403 (FAX)
Issue Date: September 6, 2000
CASE NO.: 2000-STA-00029
In the Matter of
BRIAN L. HOULE Complainant
v.
COLLINS LUMBER CORPORATION
Respondent
Appearances:
Kelly Schorr, Esquire, Troy, New York, for the Complainant
Gerry Zartmann, General Manager, Troy, New York, for the Respondent
Before: Daniel F. Sutton
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
I. Jurisdiction
This case arises from a complaint filed by Brian L. Houle (the
"Complainant") against the Collins Lumber Corporation (the
"Respondent") under the employee protection provisions of section 405 of the
Surface Transportation Assistance Act of 1982 ("STAA"), 49 U.S.C. §31105,
and the implementing regulations at 29 C.F.R. Part 1978. Section 405 of the STAA protects a
covered employee from discharge, discipline or discrimination because the employee has
engaged in protected activity pertaining to commercial motor vehicle safety and health matters.
The matter is before me on the Complainant's request for hearing and objection to the findings
issued by the Regional Administrator of the Department of Labor's Occupational Safety and
Health Administration after investigation of the complaint. 49 U.S.C. §31105(b)(2)(A), 29
C.F.R. §1978.105.
1 The documentary evidence admitted
to the record will be referred to as "ALJX" for jurisdictional and procedural
documents admitted by the Administrative Law Judge, "CX" for documents offered
by the Complainant, and "RX" for documents offered by the Respondent.
2 It is noted that the letters serving
the Secretary's Findings on the parties, as well as the letter filing the Secretary's Findings with the
Office of Administrative Law Judges, are dated February 17, 2000. However, since the
Secretary's Findings were not signed by the Regional Administrator until February 22, 2000, it
appears that the February 17, 2000 date is in error and that the Secretary's findings were not
served on the parties until February 22, 2000.
3 While the Respondent
challenged the accuracy of the Complainant's "driver's log" (TR 60, 69), the official
driver's logs were not offered in evidence. The Complainant's personal diary also was not
offered.
4 Specifically, the lab report on the
Claimant's arterial blood gas study, which was conducted at the Samaritan Hospital in Troy on
December 23, 1999, indicates that the Complainant's carboxyhemoglobin level was measured in
the normal range at 1.1. CX 4 at 2.
5 The delivery ticket in question
contains an instruction to pick up "8-2x10-22/0 [and] 12-3/4 TG ULP" and a notation
signed by Mr. Zartmann on December 21 that "Brian forgot to p/u material. 'Said' 'He
didn't read the ticket.'" RX 5 (quotations in original).
6 No mileage records were offered
in evidence. Assuming the accuracy of the mileage figures cited by the Complainant's counsel,
the Complainant's monthly mileage totals actually decreased over the first three months of
employment, then increased over the last three months, but not to the level achieved in the first
month of employment.
7 In view of the fact that the
Respondent has not argued that the Complainant's safety complaints are unprotected, I find the
ARB's recent decision in Assistant Secretary and Bates v. West Bank Containers, 98-
STA-30 (April 28, 2000) (discussing the analysis required where a respondent challenged
OSHA's interpretation that section 31105(a)(1)(A) protects safety complaints as long as the
employee has a reasonable belief that the condition violates a motor vehicle safety regulation) to
be inapplicable.
8 I recognize that my findings
regarding the reason for the Complainant's termination differ from the conclusion of the
Unemployment Insurance Appeals Board ALJ that the record before him showed that the
Complainant was terminated because he was perceived by the Respondent to be a
"troublesome" employee. However, it is unclear what evidence was offered in the
unemployment claim hearing. More importantly, the issue in that case was whether the
Complainant engaged in any conduct amounting to a substantial disregard of the Respondent's
interests which would rise to the level misconduct, not whether he met his burden of proving that
the Respondent terminated him in violation of the STAA because he engaged in protected
activities.