Date: October 31, 1994
Case Number: 92-STA-12
In the Matter of
CLYDE ETCHASON
Complainant
v.
CARRY COMPANIES OF ILLINOIS, INC.
Respondent
APPEARANCES:
Kent Heller, Esq.
Heller, Holmes & Associates
Mattoon, Illinois
For the Complainant
Kathryn M. Hartrick, Esq.
Seyfarth, Shaw, Fairweather & Geraldson
Chicago, Illinois
For the Respondent
BEFORE: DANIEL J. ROKETENETZ
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This action arises under the Surface Transportation Assistance
Act of 1982 (hereinafter "STAA"), 49 U.S.C. § 2305, and the
regulations found at 29 C.F.R. Part 1978. Section 405 of the STAA
provides protection from discrimination to employees who report
violations of commercial motor vehicle safety rules or who refuse
to operate a vehicle when such operation would be in violation of
those rules.
STATEMENT OF THE CASE
The Complainant, Clyde Etchason (hereinafter "Etchason"),
[PAGE 2]
filed the first documented complaint in this action with the United
States Department of Labor, Occupational Safety and Health
Administration (OSHA) on May 21, 1991, alleging that the Respon-
dent, Carry Companies of Illinois, Inc. ("Carry"), discriminated
against him in violation of § 405 of the STAA.
Etchason contends that he was discharged by Carry on March 15,
1991 in retaliation for his filing of a complaint with the federal
Department of Transportation ("DOT") alleging that Carry's drivers
were being forced to drive in violation of federal hours of service
regulations[1] . Carry maintains that Etchason was terminated as
a result of a series of infractions, culminating in an incident on
March 14, 1991 where a Carry customer demanded that Etchason not be
sent back to the customer's facility.
The Secretary of Labor, through a duly-authorized agent,
investigated the complaint, and on December 18, 1991, determined
that Etchason's complaint was without merit (Ad. Ex. 1)[2] .
Etchason filed a timely appeal on January 13, 1992 (Ad. Ex. 2), and
the matter was referred to this office for a formal hearing. A
hearing was conducted before the undersigned in Cincinnati, Ohio on
July 20 and 21, 1993, at which time the parties were afforded full
opportunity to present evidence and argument.
ISSUE
The sole issue to be determined in this matter is whether
Etchason was discharged by Carry as a result of his having engaged
in protected activity.
STIPULATIONS
Pursuant to my prehearing order, the parties were instructed
to confer and prepare a stipulation of facts which are not in
dispute (Ad. Ex. 38). To that end, Etchason filed a Proposed
Stipulation of Facts on July 12, 1993 (Ad. Ex. 43). Carry filed
its own proposed stipulations as part of its pre-hearing submission
on July 14, 1993 (Ad. Ex. 40), and also filed a Motion to Strike
certain of Etchason's proposed stipulations on July 20, 1993 (Ad.
Ex. 54). A comparison of the three documents reveals that the
parties stipulated to the following facts:
1. That Clyde Etchason was employed by Carry;
2. That on or about February 1, 1991, Randy Tamminga,
Carry's Vice President of Operations, recommended that
Etchason be terminated;
[PAGE 3]
3. That Randy Tamminga executed a document captioned "Carry
Transit Incident Warning Notice" dated February 1, 1991,
indicating that Etchason should be fired;
4. That Etchason filed an unfair labor practice charge
against Carry with the National Labor Relations Board
(NLRB) on or about April 3, 1991;
5. That the NLRB ruled against Etchason;
6. That Howard Hoving was, at all relevant times, the
President of Carry; and,
7. That Carry terminated Etchason on March 15, 1991.
Based upon my observation of the appearance and demeanor of
the witnesses who testified at the hearing, and upon a thorough
analysis of the entire record in this case, with due consideration
accorded to the arguments of the parties, applicable statutory
provisions, regulations, and relevant case law, I hereby make the
following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Factual Background:
Carry Transit, a division of Carry Companies of Illinois,
Inc., is engaged in the transportation of bulk food products
throughout the United States (Tr. 294-95). As Carry is the owner
of commercial motor vehicles used in an activity which affects
interstate commerce, it is an "employer" subject to the employee
protection provisions of the STAA. 49 U.S.C.A. § 2301 (Supp.
1994). Of Carry's approximately 400 employees, between 310 and 320
are drivers, who in turn are further broken down into groups
consisting of local drivers, intermediate drivers, and long
distance or over-the-road drivers (Tr. 295-96). Etchason applied
for a position as an over-the-road driver on May 7, 1990, and was
hired by Carry near the end of May, 1990 (Com. Ex. 15; Tr. 101).
1. Employment Incidents:
During the nine and one half months he was employed by
Carry, Etchason was involved in a variety of mishaps, the first of
which occurred on August 2, 1990. On that date, Etchason was
making a delivery at Grey & Company when he scraped the landing
gear of his trailer on the customer's asphalt driveway (Tr. 117-
18). Carry's incident report concerning the event states that
Etchason was
[PAGE 4]
entering the driveway from the wrong direction, and that he spilled
some of the syrup he was delivering while disconnecting hoses (Res.
Ex. 1). It further states that Etchason failed to notify Carry of
the incident. Id.
Etchason admitted scraping the asphalt, but claimed that "only
a handful" of asphalt was affected (Tr. 118). He further claimed
that Carry had given him the wrong type of trailer for the
delivery, which was the cause of the problem. Id. Etchason
admitted that he did not report the incident to his dispatcher (Tr.
118-19).
Carry alleges that on August 10, 1990, a second incident
occurred at Grey & Company, again involving a syrup spill by
Etchason (Res. Ex. 2). Etchason flatly denies that such an
incident ever occurred (Tr. 120). Randy Tamminga ("Tamminga"),
Carry's Vice President of Operations, testified that on August 10,
1990, he received a call from Robert Tothe, the Shipping Superin-
tendent at American Maize, Grey & Company's supplier, requesting
that Etchason not be sent back to Grey & Company (Tr. 392-93).
Tamminga followed up with Grey & Company, whose manager informed
him that, in addition to the syrup spill, Etchason had scraped and
cut the asphalt at Grey & Company on August 2, 1990 (Tr. 394).
Tamminga testified that Etchason had not reported these incidents,
and that Carry first learned of them when Mr. Tothe called to
complain (Tr. 395).
However, there is an incident report filled out by dispatcher
Steven Lay[3] dated August 4, 1990 (Res. Ex. 1), which undercuts
Tamminga's assertion somewhat, and suggests that someone, albeit
perhaps the customer, informed Carry of the earlier incident prior
to August 10th. This apparent contradiction raises a related
issue, the problematic nature of the "Incident Report" and
"Incident Warning Notice" documents offered into evidence by Carry.
Nine such documents were produced by Carry, only one of which
contained Etchason's signature, despite the fact that five of the
documents contained a signature line for the employee involved[4]
. Vague allegations were made by the Complainant that the notices
were prepared after Etchason's termination, and then placed
in his personnel file to justify his termination. I find no
significant evidence in the record to support such a conclusion.
However, as the documents are unsigned, they do not establish that
Etchason received copies of the notices at the time of the events.
Consequently, Etchason's knowledge of Carry's displeasure with his
actions will be addressed in relation to each specific incident.
With regard to the incidents at Grey & Company, Etchason
[PAGE 5]
admitted that Tamminga discussed his scraping of the asphalt "two
or three days" after the incident occurred (Tr. 119-120). He also
stated that Tamminga asked him whether he had spilled syrup at Grey
& Company, but that he denied any such spill (Tr. 120-21). There
was some disagreement between the parties over what constituted a
"spill". Etchason claimed that Mike Tallaksen ("Tallaksen"),
Carry's Vice President of Safety and Personnel at the time[5] ,
told him that only spills over ten gallons were required to be
reported (Tr. 228). Tallaksen testified in a deposition, however,
that while drivers could clean up "minor" spills, they were
required to report spills over five gallons to their dispatcher
(Com. Ex. 14, Tallaksen Depo., at 33-34).
Carry's written procedural materials offer little illumina-
tion. Its Orientation Materials[6] merely admonish the driver to
"be careful not to spill any product at the customer" and to "clean
up [the] area in which you pumped off if any product residue exists
within the proximity of the loading area." (Res. Ex. 17, "Tank
Trailer Delivery Procedures" June 10, 1986, at p. 4). In Carry's
Employee Manual, the failure to promptly report "spillage" is
identified as an example of behavior which could lead to corrective
action up to and including discharge (Res. Ex. 18). In addition,
there is some question as to whether Etchason ever received all of
the written materials. Etchason admitted that he had received a
copy of the Employee Manual upon beginning at Carry (Tr. 184).
However, he denied ever receiving a copy of the Orientation
Materials (Tr. 184-85, 262), and no conclusive proof to the
contrary was provided by Carry[7] .
Herman Rosenberg ("Rosenberg"), a former driver at Carry,
testified that he had never received a written warning for spills
of five to ten gallons, although he added that he had been careful
to clean such spills up before leaving the customer's place of
business (Tr. 471-72). Rosenberg testified that he had been told
by Tallaksen that it was not necessary to report spills of five or
ten gallons (Tr. 476). Jeffrey Burns ("Burns"), a driver who was
still working at Carry at the time of the hearing, testified that
he reported all spills to the company. However, he further
testified that he did not consider such a "spill" to exist unless
there was an amount of product involved large enough that the
driver was unable to clean it up on his own (Tr. 478-79).
I find it likely that some type of spill occurred at Grey &
Company in August of 1990. However, it does not appear as though
Etchason's superiors viewed the incident as a serious violation.
Tallaksen, Carry's Vice President of Safety and Personnel and the
Carry employee who ultimately fired Etchason, stated in a deposi-
tion that when making his later decision to place Etchason on
[PAGE 6]
probation in December, 1990, he "ignored" the alleged syrup spill,
and that it "had nothing to do with the probation", due to the fact
that there was no evidence as to the magnitude of the alleged spill
(Com. Ex. 14, Tallaksen Depo., at 34-35). More serious,
however, was the effect of Grey & Company's banning of Etchason
from their facility, which Tamminga testified created a problem for
Carry. See Tr. 393-95. Etchason admitted at the hearing
that he was not permitted to return to Grey & Company after August,
1990 (Tr. 175-78).
The next incident occurred on September 12, 1990, at which
time Carry alleges Etchason was delayed for nine hours, but failed
to notify Carry of the delay. The Incident Report prepared by
dispatcher Lance White ("White") is somewhat unclear, but appears
to state that Etchason called from Dean Foods to report that he was
being delayed, but failed to update his dispatcher every two hours
thereafter on his situation (Res. Ex. 3; Com. Ex. 14, Tallaksen
Depo., at 35-37). Etchason testified that the delay was caused
by a problem with the customer's equipment, and that he called in
to his dispatcher "numerous times" (Tr. 121). Later, he claimed to
have called in every two hours until 6:00 p.m., at which time he
left a message for the next dispatcher and fell asleep (Tr. 179-
80). The Incident Report is nearly illegible, but appears to state
that Etchason called in at 1:00 a.m. (Res. Ex. 3). Tallaksen
confronted Etchason about it later, but Etchason informed him that
he had, in fact, called in (Tr. 121-22). Carry's Orientation
Materials advise drivers to report any delay to their dispatcher
"as soon as possible", and in addition, to document any load-
ing/unloading delay of greater than two hours (Res. Ex. 17).
However, as noted earlier, there is no evidence that Etchason ever
received the materials. In any event, this likewise was not
considered a serious violation by Etchason's superiors. On the
Incident Report, White remarked "Talk to[.] No action at this time"
(Res. Ex. 3).
On October 22, 1990, Etchason erroneously pulled the wrong
trailer to USI Quantum Chemical (Res. Ex. 4). By this time,
Carry's "Incident Report" notices had been superseded by a form
entitled "Incident Warning Notice", which included a line for the
signature of the driver who was being warned. Id.
Seealso Tr. 411, 415. However, Etchason's signature
does not appear on the Incident Warning Notice documenting the
October 22, 1990 incident. As a result of Etchason's error, the
trailer he pulled was one which had not been properly washed out,
and Carry was forced to have Etchason drive the empty trailer to
Decatur, Illinois, approximately forty miles away, to be cleaned
before he could return to the customer (Res. Ex. 4; Tr. 352-57).
Etchason claimed
[PAGE 7]
that his dispatcher had orally given him the wrong trailer number,
but admitted that he neglected to check the number written on the
dispatch ticket (Tr. 122-25). Etchason also claimed that Dave
Hoekstra ("Hoekstra"), Carry's Manager of Tank Fleet Operations,
laughed about the incident and told him he would not get paid for
his erroneous trip (Tr. 123). He later contradicted himself,
claiming that a dispatcher, Wes Van Bruggen ("Van Bruggen"), was
the only Carry official to speak with him about the incident, and
denied having spoken with Hoekstra (Tr. 180-81). Hoekstra, for his
part, claimed to have spoken only over the phone with Etchason
concerning the incident (Tr. 355-56).
Hoekstra also testified that Carry's policy requires the
drivers to check the tank for cleanliness prior to departure, and
to obtain a tank wash certification (Tr. 352-53). The Orientation
Materials, which Etchason may or may not have been given, place the
responsibility of checking the tank for cleanliness and obtaining
a wash certificate upon the driver (Res. Ex. 17, "Partners in
Perfection Guidelines" Oct. 24, 1988). Even in the absence of such
materials, however, I find Etchason's claims that he was unaware of
the need to check trailers for cleanliness, and that Carry did
"[n]ot necessarily" require tanks to be cleaned before being loaded
with a new product, to be implausible. See Tr. 182-83.
An Incident Warning Notice was prepared on December 18, 1990
by dispatcher Van Bruggen detailing an incident where a customer
called at 4:30 a.m. to report that Etchason had not arrived for a
scheduled 4 a.m. pickup (Res. Ex. 5). The notice also states that
Etchason arrived while the customer was on the phone. Id.
Etchason testified that he was delayed by a flat tire, and that it
was not necessary for a driver to report such a delay unless he or
she was going to be more than thirty minutes late (Tr. 126-27). He
stated that he received no Incident Warning Notice at that time
(Tr. 127). He admitted that Tallaksen asked him why he was late
and why he had failed to call in to report the flat tire, but
stated that Tallaksen accepted his explanation that he thought he
could make it to the customer within the thirty minute window.
Id. Seealso Tr. 186. Carry's Orientation
Materials provide that a driver must notify his or her dispatcher
of any anticipated late pickup or delivery, but again, there is no
conclusive evidence that Etchason received the materials (Res. Ex.
17, "Delivery Performance", Nov. 1, 1988).
The next incident occurred on December 28, 1990, when Etchason
took a Carry tractor to his home rather than back to the Bridgeview
terminal after dropping off a load in Decatur, Illinois (Res. Ex.
6). Etchason admitted taking the tractor home, but contended that,
pursuant to an unwritten Carry policy, he was allowed to take the
[PAGE 8]
tractor from Decatur to his home in Mattoon, rather than returning
all the way to the Bridgeview terminal to pick up his car (Tr. 188-
91). Etchason estimated that his home in Mattoon, Illinois, was
approximately sixty miles from Decatur, while Bridgeview, Illinois
was approximately 200 miles from Decatur (Tr. 191). He later
testified that, prior to the incident, he had taken a tractor home
frequently, and that other drivers took tractors home "all the
time" (Tr. 229). Burns, another Carry driver, testified that
drivers took their trucks home "all the time", and that they
continued to do so at the time of the hearing (Tr. 478).
Tallaksen stated in his deposition testimony that Carry's
company policy forbade taking a tractor home without first
obtaining permission to do so (Com. Ex. 14, Tallaksen Depo.,
at 21-22). In fact, the Orientation Materials contain a memoran-
dum, dated November 19, 1990, which states that drivers may not
take trucks home without first obtaining permission to do so (Res.
Ex. 17, "Notice to All Drivers" Nov. 19, 1990). However, as the
memorandum was prepared in November, 1990, the parties stipulated
at the hearing that it could not have been in the Orientation
Materials allegedly distributed to Etchason when he began work at
Carry in May, 1990 (Tr. 329). Carry offered no other evidence that
Etchason ever received a copy of the memorandum, or that he was
aware of the policy before the incident on December 28, 1990.
The testimony of Tamminga, Carry's Vice President of Opera-
tions, supports Etchason's version of the events. Tamminga
testified that not only had he given Etchason permission to park
his tractor at home on previous occasions, but that it was to
Carry's advantage to have the drivers take their tractors home
where doing so would position them closer to their next pickup (Tr.
399-400). He denied having given Etchason such permission on the
date in question, and stated that following the opening of Carry's
Decatur, Illinois facility in August, 1990, the drivers were told
to park their units at the terminal "as much as possible"[8] (Tr.
400). Tamminga explained that by parking tractors at the termi-
nals, drivers could take their cars home, which allowed the
tractors to remain on company property, where the chance of theft
was less likely (Tr. 400-01). However, Etchason's uncontradicted
testimony was that he was based out of the Bridgeview terminal, and
that on the date in question, his car was parked in Bridgeview,
some 200 miles away from Decatur. See Tr. 190-91. Thus,
given Tamminga's testimony, Etchason's decision to take the tractor
to his home, which was only sixty miles from Decatur, seems reason-
able.
In any event, while the tractor was parked at Etchason's
residence, it became disabled, apparently due to the cold weather
[PAGE 9]
(Tr. 398). Due to problems with the air compressor, air pressure
could not build up to allow the brakes to function properly, and
the tractor in question ultimately had to be towed from Etchason's
residence for repairs costing approximately ,000 (Com. Ex. 14,
Tallaksen Depo., at 22-23; Tr. 189-92, 239). On cross-
examination, Etchason admitted that he had poured alcohol into the
intake line of the compressor, but claimed that he had done so on
the instructions of Keith Day, a Carry mechanic (Tr. 229-30).
Tallaksen stated in his deposition testimony that Etchason caused
the problem by pouring alcohol into the intake line, and that he
could think of no reason for doing so (Com. Ex. 14, Tallaksen
Depo., at 22-23). However, he admitted that, after investigat-
ing the matter, he found that Keith Day had instructed Etchason to
pour a "small amount of alcohol" into the compressor to release an
ice blockage. Id. at 25.
When Etchason returned to Bridgeview after this incident, he
met for an hour with Tallaksen and Tamminga, and was informed that
he was being placed on probationary status for ninety days (Tr.
192-94; Res. Ex. 6). Etchason testified that he was told not to
take the tractor home in the future, and that "two or three"
previous incidents were discussed (Tr. 192-93). An Incident
Warning Notice was prepared, and was signed by Etchason, the only
such warning submitted by Carry which contains Etchason's signature
(Res. Ex. 6). Tamminga testified that, at the time of the meeting,
he felt that Etchason should be terminated due to the air compres-
sor incident and his previous incidents, but that, after hearing
from both Etchason and Tallaksen, probation was agreed upon (Tr.
402-03). Tallaksen stated in his deposition testimony that
Etchason was placed on probation due to all of the previous
incidents, with the exception of the alleged August 10, 1990 syrup
spill at Grey & Company, which was not considered because the
extent of the spill had not been verified (Com. Ex. 14,
Tallaksen Depo., at 34-36).
On January 17, 1991, Etchason called in to report that he was
delayed at a customer, Campbell's Soup, due to the fact that the
pump on his trailer was "candied up"[9] , preventing him from
pumping off his load of product (Tr. 128-29; Res. Ex. 7). Etchason
was instructed to wait until the next morning, when two other Carry
drivers arrived to help him pump the product off (Tr. 129). He
testified that, after the drivers arrived, it took six hours to
pump the product off, which normally takes only forty-five minutes
(Tr. 129-30).
Hoekstra, Carry's Manager of Tank Fleet Operations, testified
that Jim Sargent, one of the drivers dispatched to help Etchason,
[PAGE 10]
called in and reported that there was no problem with the pump, and
that the product was being pumped off (Tr. 359-60). Seealso Res. Ex. 7. Hoekstra also testified that the product
involved, liquid corn syrup, was extremely thick and of heavy
consistency and that, due to the cold winter temperatures, it may
have taken longer than usual to pump off (Tr. 360). On cross-
examination, he also admitted that the viscosity of such a product
is related to temperature, and that the product would flow more
freely as the temperature warmed up (Tr. 371). Hoekstra main-
tained, however, that while such a change in temperature could make
pumping the product difficult, it would not be impossible (Tr.
377).
Carry's own Orientation Materials contain a memorandum which
provides, in part:
When hauling HFCS, Blends, and Sugar, before leaving
loading station, spin the pump full of product as these
products won't freeze and the pump will be free at stop.
However, with any corn syrup . . . do not fill the
pump. This will set up very quickly and cause prob-
lems.
When preparing to pump at a customer in cold weather,
make sure customer pipe is not set up with product,
especially heavy syrup.
Res. Ex. 17, "All Tank Drivers" Nov. 9, 1988 (emphasis added)[10]
.
Etchason testified that, other than when he reported the
problem to dispatcher Lance White, no one from Carry ever discussed
the incident with him, or told him he had done anything wrong (Tr.
130, 195-97). Hoekstra claimed to have told Etchason that an
Incident Warning Notice would be prepared and placed in his
personnel file (Tr. 377). However, he had previously testified
that his discussion with Etchason concerning the incident was
limited to asking Etchason if he had any idea what the problem was
in making the delivery (Tr. 360-61).
The next Incident Warning Notice, dated February 1, 1991,
documents an incident in which Etchason apparently demanded that he
be given thirty days of credit for a raise review (Com. Ex. 1).
Tamminga, who prepared the notice, remarked on the form that he
informed Etchason that such a request was "off base" in light of
the fact that Etchason was still in probationary status.
Id. Tamminga's final comment stated "This man is on
probation now. He should be terminated." Id.
Etchason admitted talking to Tamminga about a raise, and
[PAGE 11]
claimed that, during the same conversation, he also told Tamminga
that he was going to report Carry to the Department of Transporta-
tion (DOT) (Tr. 113, 131-32, 249-52). On one occasion, Etchason
testified that Tamminga responded by telling him he ought to be
fired (Tr. 113). Later, he testified that Tamminga responded by
asking him "[Do] you want to be fired?" (Tr. 132). Still later,
Etchason testified that Tamminga had told him that if he complained
to the DOT, he "would be fired" (Tr. 249-50). When asked if
Tamminga had really told him he would be fired for complaining to
the DOT, Etchason replied "Right. That's on his statement that he
gave me" (Tr. 250). Further discussion established that the
"statement" Etchason was referring to was Tamminga's statement on
the Incident Warning Notice prepared by Tamminga. See Tr.
250; Com. Ex. 1. However, Etchason had previously denied that
Tamminga had shown him the Warning Notice at the time it was
prepared (Tr. 132).
Etchason's testimony concerning the subject matter of the
conversation was also unclear. Initially, when asked what he had
discussed with Tamminga at the meeting, Etchason replied that they
had discussed "the problems that had happened" (Tr. 114). Later,
he stated that he asked Tamminga to document in writing "[a]ll
these things that have happened to me", but he did not specify that
he was referring to hours of service violations (Tr. 252).
Instead, he seemed to be referring to Carry's refusal to conduct
his salary review and to raise his rate of pay (Tr. 132). At
another point, he seemed to be referring to the incidents document-
ed in the Incident Notices and Incident Warning Reports (Tr. 252).
Tamminga testified that at the time, he considered Etchason's
demand for a raise review "bizarre" (Tr. 405). However, he
admitted on cross-examination that, regardless of whether a raise
would be granted, an employee who had been with the company for
Etchason's length of time at that point would have been eligible
for a performance and raise review (Tr. 420-21). Tamminga stated
that he reminded Etchason that he had wanted to fire Etchason in
December, and that he was still a probationary employee.
Id. He further stated that a company-wide wage freeze was
in effect, and that he told Etchason that no request for a raise
would be considered while he remained on probation. Id.
When asked whether Etchason had mentioned the DOT, OSHA, or hours
of service violations during the conversation, Tamminga replied
"[n]ot that I recall" (Tr. 407).
I find it likely that, after Tamminga told him he would not be
considered for a raise, Etchason made, at least, generalized
threats to contact the DOT. However, I find insufficient evidence
[PAGE 12]
to establish that Etchason specifically brought up the hours of
service issue with Tamminga at this time, or that Tamminga
threatened to fire Etchason if he contacted the DOT.
Rosenberg, the former Carry driver, executed a sworn affidavit
stating that, on February 1, 1991, he overheard a conversation
between Tamminga and Hoekstra (Com. Ex. 2). In the conversation
described in Rosenberg's affidavit, Tamminga allegedly told
Hoekstra that Etchason had threatened to report Carry to the DOT
and OSHA for safety and hours of service violations, and that
Etchason "was going to be fired for [reporting Carry], one way or
the other." Id. However, I did not find Rosenberg to have
been a particularly credible witness. His testimony at the hearing
differed somewhat from his affidavit. There, he testified that
Tamminga had stated only that he was going to "handle the situa-
tion", which he understood to mean that Etchason would be fired
(Tr. 25). When further questioned about the discrepancy, Rosenberg
admitted that he had not actually heard Tamminga say that he was
going to fire Etchason (Tr. 51-52). This discrepancy would not
seem significant were it not for the relative detail with which
Rosenberg described the alleged statement in his affidavit. In
addition, as a former employee of Carry terminated under disputed
circumstances, Rosenberg may have been motivated to portray Carry
in as unflattering a light as possible.
On March 13, 1991, Etchason, while at Carry's Lafayette,
Indiana facility, mistakenly failed to lower the trailer on a
concrete landing pad, and instead lowered it on a gravel surface,
which resulted in the trailer's landing gear[11] sinking into the
ground (Tr. 130-31; Res. Ex. 8). Etchason claimed that he dropped
the trailer where he had been instructed to (Tr. 131), and that no
concrete pad was available on which to drop the trailer (Tr. 198).
As a result of the sinking, Carry was forced to send out another
tanker to pump out the product from Etchason's trailer, so that
Etchason's trailer could be raised back up (Tr. 198, 311).
Tamminga testified that the landing gear is cranked down by hand,
and that Etchason should have been able to tell whether or not he
was on the concrete pad (Tr. 409-10). He further stated that
common sense would dictate dropping the trailer on a concrete pad,
although he admitted that "it would have made a difference" if
Etchason had been instructed to drop the trailer there (Tr. 431).
Carry's Orientation Materials contain a memorandum instructing
drivers to "[m]ake sure the area that the landing gear shoes will
rest on is solid, (concrete pad)" (Res. Ex. 17, "All Drivers" Nov.
15, 1988), but again, there is no proof that Etchason ever received
the memorandum.
[PAGE 13]
Etchason claimed that no one from Carry discussed the incident
with him at the time, and that he received no written warning
concerning the incident (Tr. 131, 199). Tamminga's testimony
supports Etchason's contention. Tamminga, who filled out the
Incident Warning Notice, testified that while the trailer was
sinking and Carry management was determining how to correct the
problem, he communicated only with another driver, Dennis Pickett
(Tr. 410-11). He further testified that he never had a chance to
discuss the incident with Etchason, due to the fact that Etchason
was terminated by Tallaksen on March 15, 1991, following an
unrelated incident (Tr. 411, 430).
The final incident prior to Etchason's termination occurred on
March 14, 1991, when Etchason was delivering a shipment of sugar to
Pepsi-Cola in Cincinnati, Ohio (Res. Ex. 9). According to the
Incident Report filled out by Paul Zielenga ("Zielenga"), the
General Manager of Carry's Lafayette facility, Nancy Rachford
("Rachford"), the lab technician[12] at Pepsi, called to request
that Etchason not be sent back to Pepsi. Id. Rachford
complained of repeated delays caused by Etchason's failure to
follow instructions, and stated that Etchason had "the appearance
and actions of someone on drugs." Id.
Zielenga did not testify at the hearing. However, Rachford,
who has since left Pepsi, did appear and testify. Rachford
testified that when she arrived at work, her lab technician
complained that she had instructed Etchason to back up his truck so
that bacteriological samples could be taken, but that Etchason had
failed to do so (Tr. 437-38). Rachford stated that she then
instructed Etchason to back up to an overhead door, and that when
she returned, Etchason had backed up to the wrong door (Tr. 439).
She then instructed Etchason to pull out the hoses to unload the
tank, which he also failed to do without further delay (Tr. 441).
Finally, when the unloading process was underway, she noticed that
Etchason had left his truck[13] , and was wandering around in
Pepsi's syrup mix room (Tr. 443). Rachford confirmed that she had
called Zielenga and asked that Etchason not be sent back to Pepsi,
and that she had in fact stated that Etchason appeared as though he
were on drugs (Tr. 444, 451-52).
Rachford was unsure how long the unloading process had taken,
although she estimated two hours, at the maximum (Tr. 458). She
stated that, to her knowledge at the time, Etchason had never
delivered to Pepsi before (Tr. 456-57). Yet, despite Etchason's
unfamiliarity, she was sufficiently "perturbed" at the amount of
her time wasted in the unloading, and Etchason's failure to
comprehend her instructions that she called Carry to request that
Etchason not be sent back. Id. She admitted that Etchason
was not
[PAGE 14]
rude, hostile or discourteous to her (Tr. 459). She denied
requesting that Carry terminate Etchason's employment (Tr. 460).
Etchason denied that the lab technician at Pepsi told
him he had parked in the wrong spot (Tr. 201). He claimed to have
stayed within fifteen feet of his truck throughout the entire
unloading process, although he admitted that part of the time was
spent inside the Pepsi building (Tr. 202-03). Etchason testified
that when he left, Rachford stated that she was going "to take
care" of him (Tr. 203). Later, Etchason testified that the entire
truck was parked in the building while it was unloaded (Tr. 233).
He admitted backing up to the wrong door, but stated that he had
used the door on the one previous occasion that he delivered to
Pepsi (Tr. 232-33). Etchason claimed that Rachford told him that
she was having him back up to the other door because it was cold
out that morning (Tr. 233).
2. Etchason's March 15, 1991 Termination:
When he returned to Carry on March 15, 1991, Etchason met with
Tallaksen, who informed him that his employment was being terminat-
ed (Tr. 204). Etchason testified that, during the meeting,
Tallaksen read the statement prepared by Zielenga, after which
Etchason denied that he had done anything wrong, and accused
Rachford of lying. Id. He admitted pointing at Tallaksen
during the conversation. Id. Etchason also stated that
neither hours of service violations nor his alleged complaints to
the DOT were discussed at any point during his March 15th meeting
with Tallaksen (Tr. 214).
Tallaksen testified at his deposition that, following the
incident, he called Etchason into his office in order to hear his
side of the story (Com. Ex. 14, Tallaksen Depo., at 53-54).
He further stated that, after hearing the complaint, Etchason
became belligerent with him, rising from his chair, pointing at
him, and "ranting and raving", at which time he terminated
Etchason's employment. Id. at 54-59. At first Tallaksen
stated that he fired Etchason because of his conduct during the
meeting, but later contended that he considered Etchason's entire
record, and that his finger-pointing was merely "the last straw."
Id. at 57. Carry's Employee Manual, which Etchason admits
receiving a copy of, warns that improper conduct which could lead
to discipline up to and including discharge includes "engaging in
. . . offensive, hostile, or intimidating conduct" (Res. Ex. 18,
"Rules of Conduct").
Hoving, Carry's President, also met with Etchason on March 15,
1991, just after Etchason had been discharged (Tr. 315). He
testified that Etchason did not mention DOT complaints or drivers'
hours at any point during the conversation (Tr. 316). Tamminga
[PAGE 15]
testified that he played no part in the decision to fire Etchason
(Tr. 429). He stated that he had no contact with Tallaksen prior
to the termination, other than to provide Tallaksen with a copy of
Zielenga's Incident Report concerning the complaint from Pepsi (Tr.
429-30). Hoekstra also testified that he played no part in the
decision to fire Etchason (Tr. 381).
3. Hours of Service Violations:
A great deal of testimony was elicited concerning hours of
service violations at Carry. Etchason testified that the first
time he received a dispatch which he lacked the available hours of
service to legally perform, he informed his dispatcher, Lance
White, that he was out of hours, but that White insisted he accept
the dispatch anyway (Tr. 105-07). Etchason complied, and completed
the dispatch, falsifying his log books so that it would appear he
did not violate hours of service regulations (Tr. 106, 108). In
fact, Etchason testified that Tallaksen even showed him how to
alter his log book to cover up any violations, although Etchason
already knew how to do so (Tr. 108-09). When he complained to
Tallaksen about repeatedly being dispatched over hours, Etchason
testified that Tallaksen replied "That is the way it works here"
(Tr. 112). Besides White and Tallaksen, Etchason also claimed to
have voiced his complaints concerning hours of service violations
to Hoving, Hoekstra, Tamminga, and many of the Carry drivers with
whom he came into contact (Tr. 112-13).
Etchason testified that in January of 1991, he contacted the
DOT to file a complaint alleging that it was standard procedure at
Carry to require drivers to operate in violation of hours of
service regulations, which was resulting in accidents due to driver
fatigue (Tr. 114-15). Later, Etchason stated that he could not
remember the exact date he called the DOT, but that the person he
spoke with was Algie Horton ("Horton"), a DOT employee (Tr. 144).
He produced a letter signed by Horton confirming such a conversa-
tion (Com. Ex. 7). However, the letter was not printed on DOT
letterhead, and Horton advised that he could not represent the
DOT's official position. Id. Etchason claimed to have told
Tamminga about his contacting the DOT during the February 1, 1991
confrontation he had with Tamminga concerning his request for a
raise review, which was previously discussed, supra.
Etchason testified that while he complained on a weekly basis
about driving out of hours, Carry dispatchers continued to assign
him loads even when he told them he was out of hours, and he
continued to accept the dispatches (Tr. 247-48). He stated that he
actually refused to accept a dispatch on only one occasion due to
[PAGE 16]
his being out of hours (Tr. 248). On that occasion, the dispatch-
er, whose name Etchason could not recall, did not threaten him with
loss of employment if he refused to accept the dispatch (Tr. 249).
There was ample support in the record for Etchason's allega-
tion that it was standard procedure for Carry, as a company, to
encourage, if not to require, its drivers to drive in violation of
DOT hours of service regulations. Rosenberg, the former Carry
driver, testified that it was a weekly occurrence for him to drive
in excess of the legally permitted hours of service (Tr. 20-21).
Burns, who remained a driver for Carry at the time of the hearing,
testified that he had observed at least fourteen violations since
1990, and that it was standard practice for Carry drivers to drive
in violation of hours of service regulations (Tr. 58-59). He
further testified that Bob Hoffman, a former Safety Director at
Carry, had instructed him to "make the log books look legal" when
driving while out of hours (Tr. 60). Burns stated that such
violations still occurred at Carry to some extent up to the time of
the hearing (Tr. 63). He also testified that, on previous
occasions, both Hoekstra and Tamminga had instructed him to take
loads despite the fact that he was out of hours (Tr. 67).
Burns also testified that he overheard conversations while in
the dispatch area in which Hoekstra instructed Etchason to take
loads, despite the fact that he was out of hours (Tr. 76). He
stated that he heard Hoekstra refer to Etchason as a "baby" for
complaining about being required to drive excessive hours, and that
Hoekstra and Tamminga were at times upset with Etchason for telling
his dispatchers that he was out of hours[14] (Tr. 77, 80-81). In
addition, Burns testified that Etchason complained to him about his
hours of service in July, 1990, threatening to report Carry to the
DOT, and that afterward, he told Hoving and Hoekstra about
Etchason's statements (Tr. 79-81). Burns stated that the problem
with drivers violating DOT hours regulations was due to a combina-
tion of Carry's requiring them to do so and the drivers' willing-
ness to work excess hours to obtain additional compensation (Tr.
98). He stated that, while working in the dispatch office auditing
log books in October, 1992, which was after Etchason's termination,
he noticed a decrease in hours of service violations, due to
increased compliance efforts by Carry (Tr. 72-74, 96-97). When a
violation was found, he was to report the offending driver to
Tallaksen, who would then reprimand the driver (Tr. 74-75).
Tallaksen, the Vice President of Safety and Personnel during
Etchason's tenure at Carry, testified in deposition that Carry had
been assessed fines of $27,000, $11,000 and $16,000 by the DOT for
violations including paperwork violations, log falsification and
[PAGE 17]
hours of service violations (Com. Ex. 14, Tallaksen Depo.,
at 13-16). He testified that he was unaware of Etchason ever
complaining about excessive hours being forced upon the drivers
until after he had been terminated. Id. at 11, 31.
Tallaksen also testified in the deposition about a memorandum
prepared by Carry's owner, Tom Wierenga, allegedly instructing
Carry's dispatchers never to turn down a load from a Carry customer
(the "Wierenga Memorandum")[15] . He stated that while the
Wierenga Memorandum stated only that dispatchers were not to refuse
a load from a customer, what it meant was that, instead of turning
down a load, the dispatchers were to inform the customer that,
although the load could not be delivered precisely when requested,
it could be delivered at a later time. Id. at 87. Hoving
testified that the Wierenga Memorandum merely requires a dispatcher
to go up the chain of command, to ensure that all possibilities for
accepting an order are considered (Tr. 304-07). Tamminga and
Hoekstra gave similar explanations of the policy (Tr. 365, 412-14).
Hoving testified extensively on the hours of service issue.
He admitted that Carry has had continuing problems with hours of
service violations since at least 1983-84 (Tr. 316-18). Carry took
steps to improve its performance, but Hoving testified that in each
DOT audit, hours of service violations and log falsifications had
been identified as continuing problems (Tr. 317-20). On cross-
examination, Hoving admitted that Carry knew its drivers were
driving out of hours and falsifying logs at the same time as the
Wierenga Memorandum was issued instructing dispatchers not to turn
down loads (Tr. 325-27). He agreed that when a dispatcher lacked
a driver with hours available to make a run, one of the options
considered before turning down a dispatch was allowing a driver to
run in violation of the hours of service regulations (Tr. 327). In
fact, Hoving frankly admitted that, from Carry's standpoint, it was
better to break the law (with respect to hours of service) than to
turn down a load from a customer (Tr. 328).
Hoving testified that Etchason never complained to him about
driving excessive hours[16] , or about Carry's policy of encourag-
ing drivers to do so (Tr. 312). He also denied hearing about
Etchason's complaints and threats to contact the DOT from anyone
else at Carry, including Burns (Tr. 313, 344). He contended that
if a driver were to refuse a load due to a lack of available hours,
no adverse action would result (Tr. 323).
Hoekstra testified that Etchason never told him he was going
to contact the DOT, or complained to him about hours of service
(Tr. 361). In fact, he testified that Etchason frequently
[PAGE 18]
complained that he wanted more dispatches (Tr. 362). Hoekstra
stated that a driver turning down a dispatch for lack of hours
would suffer no adverse consequences (Tr. 363-64). In direct
contrast to Hoving's testimony, Hoekstra stated that when faced
with a customer request to pick up a load, sending a driver who was
out of hours was not an option (Tr. 365). He also stated that he
could not recall any situation where Etchason informed him that he
was out of hours, but was sent out anyway (Tr. 370).
Tamminga testified that, although some drivers did run while
out of hours, it was not true that Carry's owner, Wierenga, cared
more about accepting orders, with their accompanying revenue, than
about complying with the law (Tr. 414). He denied ever having
dispatched Etchason to cover a load while knowing that he was out
of hours (Tr. 432). He also denied having ever dispatched
any Carry driver to cover a load knowing that the driver was
out of hours (Tr. 433-34). Like Hoekstra, Tamminga testified that,
not only did Etchason not complain about working over the permitted
hours, but that he in fact frequently requested that he be assigned
more hours (Tr. 431-32).
4. Etchason's Post-termination Contacts with
Tallaksen:
Much of Etchason's belief that he was terminated by Carry for
improper reasons seems to stem from conversations he had with
Tallaksen in meetings following his termination by Carry. The
discussions at these meetings were the subject of conflicting
evidence.
Etchason testified that when he spoke with Tallaksen on the
day Tallaksen terminated him, Tallaksen told him he was being fired
because of the incident at Pepsi-Cola, and that no discussion of
hours of service occurred (Tr. 115-16). Following his termination,
however, Etchason claimed to have met with Tallaksen "four or five"
times, including at least one such meeting at a bar called
"Nickaby's" (Tr. 136). He testified that, while at these meetings,
he discussed Carry's hours of service problems with Tallaksen, and
that Tallaksen told him that he had to carry out the policies of
Carry in order to avoid losing his job. Id. Etchason
claims that during the meeting at Nickaby's, Tallaksen told him
that he had been fired for being on Carry's "hit list", an
informal, unwritten list of drivers who were to be terminated (Tr.
138-42). Etchason first stated that the "hit list" consisted of
drivers who supported unionization (Tr. 139). Later, he claimed it
also included drivers who complained about being out of hours of
service (Tr. 140). Still later, he again associated the list
exclusively with union activity (Tr. 142).
[PAGE 19]
Rosenberg testified that during the meetings, Tallaksen never
indicated that Etchason had been fired for poor job performance
(Tr. 37). In fact, the only statement by Tallaksen concerning
Etchason's job performance which Rosenberg recalled was Tallaksen's
statement that the mechanic who told Etchason to pour alcohol into
the air intake line should have admitted his responsibility for the
compressor problem. Id. Rosenberg denied that Tallaksen
was intoxicated at any of the meetings, although he admitted that
some of them did take place at bars (Tr. 52). He stated that
Tallaksen had in fact discussed an unwritten "hit list" maintained
by Carry, and had stated that, after a driver's name was placed on
the list, the company would begin to document seemingly legitimate
reasons to justify the driver's termination (Tr. 473-74).
Tallaksen admitted meeting with Etchason "several times" after
Etchason had been terminated, but contended that Etchason never
mentioned his belief that he was fired for reporting Carry to the
DOT until after a separate complaint of Etchason's had been
dismissed by the National Labor Relations Board (Com. Ex. 14,
Tallaksen Depo., at 66-67). Later, he claimed that he did
not recall Etchason mentioning hours of service regulations at the
meeting, but noted that they had been drinking "quite a bit", to
the extent that his responses to Etchason's questions at that time
were "possibly" unreliable. Id. at 75-76. Etchason
testified that, following Tallaksen's deposition, Tallaksen
informed him that he had lied in the deposition in order to save
his job (Tr. 137). Rosenberg also claimed to have been told by
Tallaksen that parts of his deposition testimony were not true (Tr.
33-34). Etchason claimed, at the hearing, to have a letter written
by Tallaksen setting forth the true reasons why Etchason was fired,
which purportedly cited his hours of service complaints among the
reasons (Tr. 253-54). However, no such letter was ever produced.
I do not find Etchason's and Rosenberg's allegations of a "hit
list" to be credible, at least to the extent that it related to
anything other than union activists. When testifying about the
alleged list at the hearing, Etchason associated the list with the
union. His later attempt to add STAA activists to the "list"
appeared to me to be an attempt to reshape his discussions with
Tallaksen to fit an STAA cause of action. This impression is
further supported by Tallaksen's statement that Etchason never
mentioned his belief that he had been fired for reporting Carry to
the DOT until after his NLRB complaint was dismissed.
B. Discussion:
[PAGE 20]
Section 2305 provides, in part:
(a) No person shall discharge, discipline, or in any
manner discriminate against any employee with respect to
the employee's compensation, terms, conditions, or
privileges of employment because such employee (or any
person acting pursuant to a request of the employee) has
filed any complaint or instituted or caused to be
instituted any proceeding relating to a violation of a
commercial motor vehicle safety rule, regulation,
standard, or order, or has testified or is about to
testify in any such proceeding.
(b) No person shall discharge, discipline, or in any
manner discriminate against an employee with respect to
the employee's compensation, terms, conditions, or
privileges of employment for refusing to operate a
vehicle when such operation constitutes a violation of
any Federal rules, regulations, standards, or orders
applicable to commercial motor vehicle safety or health,
or because of the employee's reasonable apprehension of
serious injury to himself or the public due to the unsafe
condition of such equipment. The unsafe conditions
causing the employee's apprehension of injury must be of
such nature that a reasonable person, under the circum-
stances then confronting the employee, would conclude
that there is a bona fide danger of an accident, injury,
or serious impairment of health, resulting from the
unsafe condition. In order to qualify for protection
under this subsection, the employee must have sought from
his employer, and have been unable to obtain, correction
of the unsafe condition.
49 U.S.C.A. § 2305 (Supp. 1994).
Claims under the STAA are adjudicated pursuant to the standard
articulated in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). Under that framework, the Complainant must initially
establish a primafacie case of retaliatory dis-
charge, which raises an inference that the protected activity was
likely the reason for the adverse action. Once a primafacie case is established, the burden of production then
shifts to the Respondent to articulate, through the introduction of
admissible evidence, a legitimate, nondiscriminatory reason for its
employment decision. If the Respondent is successful, the
primafacie case is rebutted, and the Complainant
must then prove, by a preponderance of the evidence, that the
legitimate reasons proffered by the Respondent were merely
[PAGE 21]
a pretext for discrimination. Moon v. Transport Drivers,
Inc., 836 F.2d 226, 229 (6th Cir. 1987); SeealsoTexas Dep't. of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981).
The Supreme Court recently addressed the burden-shifting under
such statutes in extensive detail in St. Mary's Honor Center v.
Hicks, 113 S.Ct. 2742 (1993). In that case, Justice Scalia,
writing for the Court, held that in meeting its burden of produc-
tion, an employer need only articulate a legitimate reason for the
adverse action, and that no credibility assessment is appropriate
at that time. Id. at 2748. In proving that the asserted
reason is pretextual, the employee must do more than simply show
that the proffered reason was not the true reason for the action.
Instead, he or she must prove both that the asserted reason is
false (i.e. not the true reason for the action), and that discrimi-
nation was the real reason for the adverse action. Id. at
2752-56. Such a requirement is necessary in that it is the
employee who bears the ultimate burden of persuading the trier of
fact that he or she was the victim of intentional discrimination.
Texas Dep't. of Community Affairs v. Burdine, supra,
at 253; SeealsoHicks, supra, 113
S.Ct. at 2751.
To establish a primafacie case of retaliatory
discharge, the Complainant must prove: (1) that he engaged in
protected activity under the STAA; (2) that he was the subject of
adverse employment action; and (3) that there was a causal link
between his protected activity and the adverse action of his
employer. Moon, supra, 836 F.2d at 229. The
Secretary has taken the position that, in establishing the "causal
link" between the protected activity and the adverse action, it is
sufficient for the employee to show that the employer was
aware of the protected activity at the time it took the
adverse action. SeeOsborn v. Cavalier Homes, 89-
STA-10 (Sec'y July 17, 1991); Zessin v. ASAP Express, Inc.,
92-STA-33 (Sec'y Jan. 19, 1993).
Etchason's Prima Facie CaseProtected Activity:
Under subsection (a) of Section 2305, protected activity may
be the result of complaints or actions with agencies of federal or
state governments, or it may be the result of purely internal
activities, such as internal complaints to management, relating to
a violation of a commercial motor vehicle safety rule, regulation,
standard, or order. 49 U.S.C.A. § 2305(a) (Supp. 1994);
Reed v. National Minerals Corp., 91-STA-34 (Sec'y July 24,
1992); Davis v. H.R. Hill, Inc., 86-STA-18 (Sec'y Mar. 18,
1987).
[PAGE 22]
Etchason's complaint to DOT employee Algie Horton in January,
1991 constitutes protected activity under subsection (a). While an
official DOT memorandum of such a contact would certainly have been
preferable, I find that Etchason's testimony (Tr. 114-15, 144, 152-
59), combined with the letter he received from Horton (Com. Ex. 7),
is sufficient to establish such a contact. In addition, Etchason's
uncontradicted testimony establishes that he also contacted Patrick
Gleason of the Illinois DOT in January, 1991, a contract which also
constitutes protected activity (Tr. 150).
Etchason also testified that he frequently complained about
hours of service violations to various Carry supervisory personnel,
including Tallaksen, Hoving, Hoekstra and Tamminga (Tr. 112-13,
143). Tallaksen denied, in his deposition, that Etchason had ever
complained to him regarding excessive hours of service (Com. Ex.
14, Tallaksen Depo., at 11, 31). Etchason claimed that he
had brought the question of hours of service up with Tallaksen, who
responded "That is the way it works [at Carry]" (Tr. 112).
Etchason and Rosenberg each testified that, when they had met with
Tallaksen at Nickaby's following Etchason's termination, Tallaksen
had told them that he had lied during his deposition in order to
save his job (Tr. 33-34, 137). Rosenberg was extremely
vague when pressed to identify specific topics Tallaksen had
admitted lying about, mentioning only topics concerning his own
firing (Tr. 34-35). Based upon the frank nature of Tallaksen's
deposition testimony, much of which was unflattering to Carry, I
find the allegations of Etchason and Rosenberg in this regard to be
unworthy of belief.
Hoekstra and Tamminga also denied ever having heard Etchason
complain about his hours of service, and in fact testified that
Etchason frequently asked for more hours (Tr. 361, 431-32). I find
neither Hoekstra nor Tamminga to have been a credible witness.
Hoekstra testified that, when faced with a lack of available
drivers, sending a driver who was out of hours to cover a dispatch
was not an option considered by Carry, despite the fact that
Hoving, Carry's President, admitted exactly the opposite during his
testimony. See Tr. 327. Hoekstra also denied that Etchason
had ever complained to him about hours of service, or that he had
ever dispatched Etchason knowing he was short of available hours.
However, Etchason's testimony on this issue was buttressed by the
testimony of Burns. Burns testified that he had heard Hoekstra
dispatch Etchason despite his lack of available hours, and that
Hoekstra had called Etchason a "baby" for complaining about such
dispatches (Tr. 76-81). I find Burns to be credible in this
regard, especially in light of the fact that, unlike Rosenberg, he
was still employed by Carry at the time of the hearing, and thus
[PAGE 23]
had every incentive to be as favorable to Carry as possible during
his testimony.
Tamminga went even further than Hoekstra, denying at one point
that he had ever dispatched any Carry driver to cover a load
knowing that the driver was out of available hours. However, in
addition to Etchason, Burns testified that he had instructed to
take loads by both Hoekstra and Tamminga despite their knowledge
that he had no available hours (Tr. 67). Moreover, Tallaksen and
Hoving both testified that hours of service violations were a
continuing problem at Carry, as recounted previously, supra.
Based on the testimony at the hearing, it seems Hoekstra and
Tamminga were the only people at Carry who were not aware of the
extensive hours of service violations occurring at Carry during the
period in question, a scenario which I find extremely unlikely in
light of their respective positions within the company. Therefore,
I find that the evidence establishes that Etchason complained at
various times to Tamminga and Hoekstra about being dispatched
beyond his available hours of service, and that such complaints
constituted protected activity.
Hoving denied that Etchason had ever complained directly to
him about being dispatched when out of available hours of service
(Tr. 312). In general, I found Hoving to be a credible witness, an
impression which was reinforced in light of his frank testimony
concerning Carry's extensive and persistent hours of service
compliance problems. To this end, I credit his testimony that
Etchason never complained directly to him concerning hours of
service violations prior to his termination[17] .
Under subsection (b) of Section 2305, an employee also engages
in protected activity when he or she refuses to operate a commer-
cial motor vehicle where such operation would constitute a
violation of a commercial motor vehicle rule or regulation,
including the DOT hours of service regulations. Greathouse v.
Greyhound Lines, Inc., 92-STA-18 (Sec'y Aug. 31, 1992). Also
protected under subsection (b) is a work refusal where the employee
reasonably believes that, due to the unsafe condition of the
equipment, operation of the vehicle would likely result in serious
injury to himself or the public. 49 U.S.C.A. § 2305(b) (Supp.
1994). The "federal violation" clause is not triggered, however,
unless there is proof of a work refusal. Id.
In this case, Etchason testified that there was only one such
occasion when he refused to accept a dispatch because he was out of
hours (Tr. 248). However, he could not remember the time,
approximate date, or dispatcher involved in the incident.
Id. I
[PAGE 24]
find Etchason's testimony to be so vague on this point so as not to
support a finding that he engaged in protected activity under
subsection (b) of Section 2305.
Adverse Employment Action:
The parties stipulated that Carry terminated Etchason's
employment on March 15, 1991. See "Stipulations",
supra. Therefore, I find that this element of the
Complainant's primafacie case has been established.
Causal Relationship:
The final element of the Complainant's primafacie case is the establishment of a causal link between the
protected activity and the adverse employment action. As noted
previously, an inference of causation may be raised by proving that
Carry had knowledge of Etchason's protected activity at the time it
engaged in the adverse employment action.
By the very nature of Etchason's direct complaints concerning
hours of service to Hoekstra and Tamminga, I find that Carry did,
in fact, have knowledge of that portion of Etchason's protected
activity. As discussed above, however, I find insufficient
evidence to support a finding that Etchason made such complaints to
Tallaksen. I find it likely, however, that in his position as Vice
President of Safety and Personnel, Tallaksen was at least aware of
the fact that Etchason had made such complaints.
Hoving, Carry's President, also testified that Etchason never
complained to him regarding excessive hours prior to his termina-
tion, and I have previously credited his testimony on that point.
I do not credit his statement, however, that he had not heard of
Etchason's complaints from anyone else at Carry, including Burns.
See Tr. 313, 344. Burns testified that in July, 1990, after
Etchason had complained to him about his hours of service, he
informed Hoving about Etchason's complaints, and suggested having
the dispatchers "ease up" on Etchason (Tr. 79). Burn's version of
the events is supported by the testimony of Tallaksen. Tallaksen
admitted that he had "probably" told Etchason that Burns was a
"snitch", and explained that "[e]very time somebody does something
wrong, you see [Burns] running in Howard's office" (Com. Ex. 14,
Tallaksen Depo., at 77).
As to Etchason's January, 1991 contacts with the DOT, Etchason
estimated that 300 of Carry's 400 drivers knew of his complaint to
the DOT (Tr. 163, 238). Burns testified that he heard of
[PAGE 25]
Etchason's DOT complaint "through the grapevine", and that it was
"common knowledge" among the drivers that Etchason had made such a
complaint (Tr. 90, 93). The only Carry supervisor Etchason claimed
to have informed of his intent to contact the DOT was Tamminga (Tr.
163-64)[18] . As discussed extensively, supra, I find
sufficient evidence to support a finding that Etchason threatened
to contact the DOT in his February, 1991 confrontation with
Tamminga, although perhaps not specifically in relation to hours of
service violations. Therefore, I find the evidence sufficient to
establish that Tamminga had knowledge of Etchason's January, 1991
contact with the DOT.
The knowledge, on the part of various Carry supervisory
personnel, of Etchason's protected activity is sufficient to
establish the necessary "causal link" between the protected
activity and the subsequent adverse employment action. As such, I
find that Etchason has succeeded in establishing a primafacie case of retaliatory discharge.
Rebuttal of the Prima Facie Case
Since Etchason has established a primafacie
case of retaliatory discharge, the burden of production now shifts
to Carry to establish a legitimate, nondiscriminatory reason for
terminating Etchason's employment. To meet its burden, Carry need
only articulate such a legitimate reason, a task which involves no
credibility assessment at this stage of the proceedings. St.
Mary's Honor Center v. Hicks, 113 S.Ct. 2742, 2748 (1993).
Most of the evidence concerning Carry's alleged reasons for
terminating Etchason's employment was contained in Tallaksen's
deposition testimony. As discussed previously, Tallaksen testified
that after Rachford had called from Pepsi-Cola to complain about
Etchason's conduct and to request that he not be sent back to
Pepsi, he instructed Tamminga to call Etchason in so that he could
hear Etchason's side of the story (Com. Ex. 14, Tallaksen
Depo., at 52-53). Tallaksen contended that after he related
Rachford's complaint to Etchason, Etchason jumped out of his chair
and pointed at Tallaksen, stating that Rachford was lying, and that
he was being set up. Id. at 54, 58-59. Tallaksen claimed
that, after trying unsuccessfully to calm Etchason down, he finally
said "That's it, Clyde. You are through. Get your stuff out of
your truck." Id. at 59. Tallaksen first indicated that he
fired Etchason because of the complaint from Pepsi and Etchason's
conduct during the meeting. Id. at 54-55. Later, he
characterized Etchason's behavior at the meeting as merely being
"the last straw" in the decision to fire him. Id. at 57.
[PAGE 26]
In an affidavit executed in support of Carry's Motion for
Summary Decision in this case, dated September 25, 1992, Tallaksen
stated: "On or about March 15, 1991, as a result of Etchason's
persistent performance problems and customer complaints, I informed
him that he was discharged." Com. Ex. 14, Tallaksen
Deposition Exhibit 1; Ad. Ex. 22, Motion for Summary Decision,
Exhibit F. Etchason's personnel file from Carry contains a
termination form dated March 17, 1991 on which Tallaksen listed the
reason for Etchason's termination as: "Customer Complaint. Failure
to complete Probation period." (Com. Ex. 15).
Etchason's history of mishaps and customer complaints, his
being banned from further deliveries at Pepsi, and his conduct
during the meeting with Tallaksen, if credited, certainly would
constitute legitimate and nondiscriminatory grounds for Etchason's
termination. Therefore, I find that Carry has successfully carried
its burden of production. As a result, it is now incumbent upon
Etchason to prove that Carry's asserted reasons are pretextual,
i.e. that they were not the true reasons for his termination, and
that retaliation for STAA protected activity was in fact the true
reason.
Pretext
Etchason has gone to great lengths to demonstrate that
violations of the DOT's hours of service regulations were a common
occurrence during his tenure at Carry. Those violations are noted.
Carry's own President admitted as much, and in fact stated that,
from Carry's point of view, it was better to break the law than to
turn down a load from a customer (Tr. 328). While such an attitude
is appalling, it is, in many cases, a correct statement of the
economic realities of the trucking industry, and does not necessar-
ily lead to the conclusion that Carry discharged Etchason for
engaging in protected activity. In any event, it is still
incumbent upon Etchason to establish that the reasons asserted by
Carry for his termination are pretextual, and I ultimately conclude
that Etchason has failed to carry his burden of persuasion.
Etchason's termination occurred on March 15, 1991, slightly
over one month after his dispute over a salary review with
Tamminga, during which he allegedly threatened to contact the DOT.
The proximity in time of protected activity vis-a-vis adverse
employment action can support an inference of causation. Ertel
v. Giroux Bros. Transp., Inc., 88-STA-24 (Sec'y Feb. 16, 1989).
However, several factors lead me to conclude that such an inference
is not warranted here.
[PAGE 27]
Initially, I note that Etchason never explicitly stated
what he threatened to report to the DOT, and that his
testimony led me to believe that he had threatened to approach the
DOT over Carry's refusal to conduct his anticipated salary review.
Tamminga's statement on the Warning Notice, "This man is on
probation now. He should be terminated." (Com. Ex. 1), does not
persuade me to the contrary. Although I did not find Tamminga to
be a credible witness, I find it implausible to think that, if
Etchason had really informed Tamminga that he was going to report
Carry to the DOT for hours violations, Tamminga would have been
foolish enough to immediately recommend, Etchason's termination in
writing.
I find that Tamminga's comment was more likely another example
of Tamminga's personal animosity toward Etchason, which was
exacerbated by Etchason's demand for a raise while he was still on
probation. Tallaksen testified in his deposition that Etchason and
Tamminga "had a personality conflict", and that Tamminga had made
up his mind "months prior" to the Pepsi incident that Etchason
should be fired (Com. Ex. 14, Tallaksen Depo., at 59-60).
No matter what Tamminga's motive, he did not find Tallaksen to be
an ally in his attempt to have Etchason fired. In fact, Tallaksen
intervened on Etchason's behalf on more than one occasion. When
asked whether Tamminga was "out to get" Etchason, Tallaksen replied
that Tamminga "can't get [Etchason] without me." Id. at 60.
Tallaksen further testified that he had refused Tamminga's requests
that he fire Etchason on three occasions: in December, 1990, when
the compressor on Etchason's tractor was damaged while parked at
Etchason's home (Tallaksen had instead placed Etchason on proba-
tion); after Etchason's demand for a salary review; and a third
occasion which Tallaksen could not recall. Id. at 60-61.
The overwhelming consideration which leads me to conclude that
Etchason's termination was unrelated to his protected activity is
his abysmal performance history, which culminated in his being
banned by Pepsi from making future deliveries, the second time a
Carry customer had taken such action. In the less than ten months
he was employed at Carry, Etchason averaged one disciplinary
problem per month, was placed on probationary status, and had been
banned by two separate customers.
Etchason contended at various times that the Incident Warning
Notices had been produced after his termination in order to
document seemingly legitimate reasons for his termination. Such a
contention is belied, however, by Etchason's admissions that
virtually all of the events documented in the Incident Warning
Notices did in fact occur. Etchason denied that he had spilled
syrup at Grey & Company on August 10, 1990 (Res. Ex. 2), or that he
[PAGE 28]
had failed to call in every two hours when delayed on September 12,
1990 (Res. Ex. 3). Giving Etchason the benefit of the doubt, and
assuming that neither incident took place, a substantial number of
events remain:
Etchason admitted scraping his landing gear at Grey & Company
on August 2, 1990 (Res. Ex. 1), which resulted in Carry's
having to pay for repairs to the customer's driveway;
Although he denied the syrup spill at Grey & Company (Res. Ex.
2), he admitted that he was banned from returning to Grey and
Company at the customer's request;
Etchason admitted having pulled the wrong trailer to USI
Quantum Chemical on October 22, 1990 (Res. Ex 4), as a result
of having failed to either check the trailer number on his
dispatch ticket or check the tank for cleanliness. Carry was
forced to have Etchason drive to a washing facility some forty
miles away;
He also admitted arriving late for a pickup on December 18,
1990 (Res. Ex. 5);
Although there is some dispute over whether Etchason was wrong
in parking his tractor at his home on December 28, 1990, and
the instructions given Etchason by a Carry mechanic, it is not
denied that Carry was forced to replace the compressor on the
tractor at a cost of approximately ,000 (Res. Ex. 6). In
addition, Etchason admitted that after this incident, he was
placed on probation for ninety days after an hour-long disci-
plinary meeting with Tallaksen and Tamminga;
While it is possible that Etchason's inability to pump a load
of corn syrup out of his trailer on January 17, 1991 (Res. Ex.
7) was due mainly to cold weather, it was not denied that the
two drivers dispatched to help Etchason were able to pump the
syrup out the next day with the pump in question; and,
Although he denies wrongdoing, Etchason admitted that he was
banned from returning to Pepsi-Cola after a Pepsi employee
called to complain (Res. Ex. 9)[19] .
Taking this checkered history into account, I find that
Tallaksen was fully justified in terminating Etchason's employment,
especially in light of Etchason's finger-pointing and belligerent
conduct when Tallaksen called him in to discuss Pepsi's complaint.
[PAGE 29]
Finally, I find it significant that it was Tallaksen who fired
Etchason. It was Tallaksen who had resisted Tamminga's attempts to
have Etchason fired, and who Etchason characterized as his friend
(Tr. 245). Tallaksen cited Etchason's conduct at the March 15th
meeting, the Pepsi complaint, and Etchason's performance record as
the reasons behind his decision to fire Etchason at the meeting.
Significantly, Etchason admits that neither he nor Tallaksen
mentioned hours of service complaints at any time during the
meeting (Tr. 214). Furthermore, it appears that Tallaksen acted
alone in deciding to terminate Etchason's employment. Hoekstra and
Hoving played no part in the decision to fire Etchason, and
Tamminga's involvement was limited to providing Tallaksen with a
copy of the Incident Warning Notice concerning the Pepsi complaint.
These considerations lead me to conclude that Etchason has
failed to show that the reasons asserted by Carry for his termina-
tion were pretextual.
In conclusion, the picture painted at the hearing of Carry's
operations during the time of Etchason's employment was an
unflattering one. In addition to a company-wide disregard for DOT
hours of service regulations, Carry supervisory personnel frequent-
ly failed to follow their own procedural regulations. The
jurisdictional scope of this inquiry, however, is limited to
determining whether Etchason was discharged by Carry in retaliation
for his having engaged in protected activity under the STAA.
In evaluating the entire record, I conclude that the over-
whelming weight of the evidence demonstrates that the reasons
advanced by Carry for the termination of Etchason's employment are
legitimate and not pretextual. The credible evidence in this
record is susceptible to no conclusion but that Carry would have
reached the same employment decision even in the absence of the
protected activity in which the Complainant engaged.
RECOMMENDED ORDER
IT IS RECOMMENDED that the complaint of Clyde Etchason be
DISMISSED.
DANIEL J. ROKETENETZ
Administrative Law Judge
NOTICE: This Recommended Decision and Order an the
administrative file in this matter will be forwarded for review by
the Secretary of Labor to the Office of Administrative Appeals,
U.S. Department of Labor, Room S-4309, Frances Perkins Building,
200 Constitution Avenue, N.W., Washington, D.C. 20210. The Office
of Administrative Appeals 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).
[ENDNOTES]
[1] "Hours of Service" regulations, as used in this decision,
are DOT limitations on the number of hours a commercial truck
driver may operate his or her vehicle before stopping for rest.
There are three main rules limiting a driver's hours. Briefly
summarized, the "Ten Hour Rule" provides that a driver may
accumulate a maximum of ten driving hours before stopping for
eight hours of off-duty time; the "Fifteen Hour Rule" applies to
time spent on duty, but not driving, such as loading, unloading,
etc., and requires that a driver accumulate no more than fifteen
"duty hours" (which include both driving and non-driving time)
before stopping for eight hours of rest; and finally, the "Seven-
ty Hour Rule" forbids the accumulation of more than seventy total
duty hours in any eight day period. 49 C.F.R. §
395.3.
[2] In this decision, "Com. Ex." refers to Complainant's Exhib-
its, "Res. Ex." refers to Respondent's Exhibits, "Ad. Ex." refers
to Administrative Exhibits, and "Tr." refers to the Transcript of
the hearing.
[3] In the deposition of Mike Tallaksen, the dispatcher who
filled out the August 2, 1990 incident report is referred to as
Steve "Lake".
[4] Tamminga testified that the incident forms were changed in
October, 1990, in order to provide a space for the employee's
signature acknowledging receipt of the notice (Tr. 415). The
forms themselves support his assertion. Compare Res. Ex.
3 (September 12, 1990 notice without signature line) with
Res. Ex. 4 (October 22, 1990 notice with signature line). I note
that the most recent notice, dated March 15, 1991, was prepared
on one of the older forms (Res. Ex. 9). However, I find that
this discrepancy is most likely due to the fact that the form was
prepared by Paul Zielenga, the General Manager of Carry's Lafay-
ette, Indiana facility. The exhibit contains a facsimile trans-
mission identification line which reflects a March 15, 1991
transmission date. Id.
[5] According to the Respondent's attorney, Tallaksen resigned
his position at Carry in January, 1993. See Ad. Ex. 41.
Tallaksen did not testify at the hearing. However, the tran-
script of his deposition was admitted into evidence (Tr. 288).
[6] There are two collections of written policies and procedures
which have relevance to this case. The first is a series of
memoranda instructing the drivers as to the performance of
various operating procedures, such as loading and unloading tanks
and trailers, etc. (Res. Ex. 17). For the sake of clarity, this
document is referred to as the "Orientation Materials" in this
decision. The second such item is a document entitled "Carry
Companies Employee Manual", which contains more generalized
personnel policies concerning, e.g. vacation, overtime, sick
leave, and the like (Res. Ex. 18). This document is referred to
herein as the "Employee Manual".
[7] Carry submitted a checklist, listing the Orientation Materi-
als, with a line for the driver's signature acknowledging their
receipt (Res. Ex. 20). However, the document, which is dated May
22, 1990, contains no signature and bears only what appears to be
the letters "Cl". Id. At the hearing, there was some
dispute over whether the signature page was contained in the copy
of Etchason's personnel file provided by Carry to the Complainant
during discovery (Tr. 328-38, 384-86). There is insufficient
evidence to support a finding that Etchason signed a copy of the
document, for a number of reasons. First, while the letters "Cl"
on the document appear similar to the first two letters of
Etchason's signature on other documents, there is simply not
enough writing to make an adequate comparison. Secondly, the
date on the document is May 22, 1990, which was a week before
Etchason started at Carry, and which does not match the May 29,
1990 date on all of the other documents executed by Etchason when
he started work. See Com. Ex. 15. In addition, Ms.
Hartrick, counsel for Carry, admitted at the hearing that
Etchason's personnel file "at first could not be located" when
the Complainant requested its production during discovery (Tr.
332). Finally, two other drivers, one of whom was still employed
by Carry at the time of the hearing, testified that they never
received a copy of the Orientation Materials (Tr. 470, 478).
These factors raise legitimate concerns as to the document's
authenticity, and preclude me from ascribing it a great deal of
weight.
[8] Tamminga testified that it was unlikely that Etchason did
not know of the new policy, since it was posted and, in addition,
the terminal manager in Decatur was instructed to convey the
policy to each driver based in Decatur (Tr. 401). However,
Etchason's testimony was that he was based in Bridgeview, not
Decatur. See Tr. 190-91.
[9] According to Etchason, the phrase "candied up" refers to a
situation where liquid product solidifies in the pump of a tank
trailer, rendering it impossible to pump off the product until
the blockage is removed (Tr. 129).
[10] For the reasons expressed previously, supra, there
is no reliable evidence to prove that Etchason ever received a
copy of this memorandum, which was contained in the Orientation
Materials.
[11] A trailer's landing gear, also known as "shoes" or "sand
shoes" is cranked down by hand so that the tractor may be re-
moved, allowing the trailer to stand by itself. See Tr.
311 (testimony of Hoving).
[12] Rachford's position at Pepsi-Cola was actually Quality
Control Manager. See Tr. 437.
[13] Carry's Orientation Materials contain a memorandum in-
structing its drivers not to leave their trucks unattended while
unloading, except to check the level of the customer's storage
tank (Res. Ex. 17, "Tank Trailer Delivery Procedures" June 10,
1986, at 3). However, once again, there was insufficient proof
offered at the hearing to establish that Etchason ever received a
copy of the Orientation Materials.
[14] Burns also testified that, at one point, he overheard
Tamminga telling Hoekstra that "we might as well get rid of
[Etchason]" (Tr. 81). However, he could not relate the context
of the discussion in which the statement was made (Tr. 81-82).
[15] Although various witnesses testified about the Wierenga
Memorandum and its meaning, the memorandum itself was never
offered into evidence.
[16] Hoving did admit that Rosenberg complained to him on a
number of occasions about the hours the drivers were being
required to drive (Tr. 313-14).
[17] Etchason's testimony on this point was contradicto-
ry. He first stated that he talked to Hoving about hours of
service violations, but that Hoving "never had a response" (Tr.
113), which at least suggests that he spoke with Hoving about it
on more than one occasion. However, in the next breath, Etchason
testified that he spoke with Hoving concerning hours of service
only once, a week or two after he was hired. Id. There-
fore, I credit Hoving's testimony on this point.
[18] Etchason also testified that he informed Hoving of his
intention to file a complaint with the DOT concerning hours of
service violations on March 15, 1991, the day he was terminated.
However, Etchason's own testimony established that his discussion
with Hoving took place while Tallaksen was already in the process
of preparing Etchason's termination papers. See Tr. 163-
66, 249-50.
[19] In addition, Etchason dropped a trailer off of the concrete
pad on March 13, 1991, two days before he was fired (Res. Ex. 8).
However, based on Tallaksen's deposition testimony that he was
unaware of this incident when he fired Etchason on March 15th, I
find that it was not a factor in the decision to terminate
Etchason. See Com. Ex. 14, Tallaksen Depo., at 51-
52.
