DATE: October 1, l993
CASE NO: 93-STA-27
IN THE MATTER OF
DOMINIC J. PANGALLO and WANDA PANGALLO,
Complainants
v.
PITTMAN TRUCKING COMPANY, INC.
Respondent
APPEARANCES:
Clark H. Tidwell,
Lassiter, Tidwell & Trentham
Nashville, Tennessee
For The Complainants
Frank Steiner,
Steiner & Steiner
Nashville, Tennessee
For The Respondent
BEFORE:
Bernard J. Gilday, Jr.
Administrative Law Judge
CORRECTED RECOMMENDED DECISION AND ORDER
Issuance of this Corrected Recommended Decision and Order is
required due to the omission of four words and a case citation in
Conclusion of Law No. l of the Recommended Decision and Order
issued on September 23, l993.
This proceeding arises under the employee protection provision of
the Surface Transportation Assistance Act of 1982 (STAA), 49
U.S.C. Section 2305.
Pursuant to notice issued on June 1, 1993, a Hearing was held on
July 13, 1993 and July 14, 1993 at Nashville, Tennessee. An
[PAGE 2]
Order Closing Record on September 15, 1993 was issued on August
10, 1993, the date when the Transcript of Proceedings was filed.
Procedural History
On January 29, 1993, Dominic J. Pangallo and Wanda Pangallo filed
a complaint with the Secretary of Labor alleging that Pittman
Trucking Company, Inc. discriminatorily terminated them for
complaining about unsafe tires on the truck to which they were
assigned to drive in violation of Section 405 of the STAA.
Investigation was initiated and completed by the Regional Admin-
istrator, Region IV, Occupational Safety and Health Administra-
tion, the duly authorized agent of the Secretary of Labor.
Secretary's Findings, issued on April 30, 1993, determined that
the complaint is without merit and that Pittman Trucking Company,
Inc. did not violate Section 405 of the STAA (ALJX 1).[1]
Complainants' objections and exceptions were filed on May 6, 1993
(ALJX 2).
Stipulations
Complainants and Respondent stipulated to each and all of the
following (ALJX 7 & Tr 8-10):
1. Complainants are a husband and wife team of truck drivers who
drive tractor-trailer vehicles on long-haul trips and live in New
Richmond, Ohio.
2. Respondent's principal place of business is in Puryear,
Tennessee. Respondent owns commercial trucks and leases some of
them to Transportation Services, Inc. (TSI). In the regular
course of business, Respondent operated commercial motor vehicles
in interstate commerce to transport cargo. Consequently, Respon-
dent is a commercial motor carrier and is subject to the STAA.
3. On September 1, 1992, Respondent hired Complainants as a
husband and wife team to drive a tractor-trailer with a gross
vehicle weight rating in excess of 10,000 pounds. Complainants
were assigned to drive a 1991 Freightliner tractor designated by
Respondent as Unit No. 60792.
4. Each Complainant was paid ten cents per mile plus three cents
per mile for meals and incidental expenses. During their twelve
week period of employment, each Complainant received $5,257.80 in
wages in accordance with their W-2 form. The total miles driven
was 52,578.
[PAGE 3]
5. In the course and scope of their employment by Respondent,
Complainants directly affected Commercial Motor Vehicle Safety.
6. On or about January 29, 1993, Complainants filed a complaint
with the Secretary of Labor alleging that Respondent had discrim-
inated against them in violation of the STAA, which complaint was
filed in a timely manner. This matter is properly before the
Administrative Law Judge assigned to hear this case.
FINDINGS OF FACT
1. Pittman Trucking Company, Inc. is a family owned and operated
business situate in Puryear, Tennessee. Clifford Pittman is the
Corporate President, Mary Pittman, wife of Clifford Pittman, is
the Corporate Vice-President and Debra Wyatt, daughter of
Clifford and Mary Pittman, is the Corporate Secretary-Treasurer
(Tr 25, 231 & 283). Clifford Pittman has engaged in the trucking
business for approximately seventeen years and serves as a truck
driver (Tr 32). As of the date of the Hearing, Respondent owned
fifteen trucks, which with a driver, are leased to various common
carriers of general freight (Tr 308-310). Mary Pittman is the
company's night dispatcher and, after 4:00 p.m. she takes tele-
phone calls from drivers and receives messages from and delivers
messages to drivers. All incoming and outgoing telephone messag-
es are memorialized in a telephone message book (Tr 283). Debra
Wyatt is assigned as the company operation manager. She works
from 8:00 a.m. to 4:00 p.m. daily (Tr 231).
2. Dominic J. Pangallo and Wanda Pangallo have worked as a
husband and wife truck driver team for approximately thirteen
years (Tr 77). They were transported from Cincinnati, Ohio to
Puryear, Tennessee on August 31, 1992 in truck 60792 which they
ultimately were assigned to drive (Tr 316). After an approximate
three hour interview-orientation with Clifford Pittman, during
which Complainants were informed of company vehicle inspection
and maintenance requirements, the nature of freight transported,
payroll policy and leasing arrangements, Complainants drove truck
60792 from Puryear, Tennessee to the TSI facility in Dallas,
Texas, to which Complainants and truck 60792 were leased (Tr 41).
3. Respondent's lease with TSI obligated TSI to perform a com-
plete Federal Highway inspection of the vehicle, to affix the
required inspection-safety seal to the vehicle windshield, to
inspect at the TSI facility the vehicle each time it arrived in
Dallas, Texas and to dispatch the leased equipment and drivers to
and from points and places of TSI's choice with loads designated
by TSI (Tr 310-311).
[PAGE 4]
4. Respondent purchased the 1991 Freightliner truck new on or
about December 27, 1990 from Duckett Truck Center, Calvert City,
Kentucky (Tr 29). Prior to the time when this vehicle was
assigned to Complainants, the front or "steering" tires were
replaced in accordance with Respondent's policy of replacing
front tires every 100,000 to 120,000 miles (Tr 31). The rear, or
"drive" tires had not been replaced, since it was Respondent's
practice to replace rear tires every 300,000 to 350,000 miles
because extremely light loads were transported extremely long
distances (Tr 32). The 52,578 miles driven by Complainants were
accumulated, for the most part, from Detroit, Michigan to Laredo,
Texas, a one-way distance of about 1550 miles (Tr 32-33). At the
time when Complainants commenced driving truck 60972, the rear
tires had approximately 250,000 miles on them (Tr 38).
5. To insure compliance with the Federal Motor Carrier Safety
Regulations, Respondent requires that all of its vehicles arrive
at Puryear once each month for an inspection (Tr 319). In order
to protect warranties, Respondent enforces a preventative mainte-
nance schedule for each of its vehicles every 10,000 miles (Tr
319). Complainants, having moved truck 60972 from Puryear on
September 1, 1992, did not return it to Puryear until November 1,
1992 (Tr 319-320)
6. Complainants did not comply with Respondent's requirements
for a monthly truck inspection, as required by Federal Motor
Carrier Safety Regulations, nor did they comply with Respondent's
l0,000 mile preventative maintenance schedule (Tr. 3l9-320-329).
7. While Complainants maintain that, on and after September 1,
1992, they expressed concern about the condition of the tires on
truck 60972 and the need for new steering and drive tires,
Respondent's documentary evidence largely refutes such conten-
tions. The day time telephone message record made by Operations
Manager Wyatt reflects receipt of twenty-eight telephone calls
placed by Complainants (RX 1). Only two of the twenty-eight
messages mention tires. On October 21, 1992, it appears that
Complainants expressed a need for tires. A record of a telephone
report made by Complainants to Respondent on November 9, 1992
contains the notation "got tires changed last night." The
evening and night time telephone message record documents seven-
teen calls from Complainants to Respondent (RX 2). The sole
mention of tires was made on October 24, 1992 by Complainant
Wanda Pangallo who expressed a need for tires.
8. Fourteen Driver's Daily Logs - Driver's Vehicle Inspection
Reports, completed and signed by Complainant, Dominic Pangallo,
[PAGE 5]
during the October 7, 1992 - October 28, 1992 period, contain no
mention of either a need for tires or the condition of the tires
on truck 60972. Additionally, there is no mention of tires in
the Driver's Daily Log - Driver's Vehicle Inspection Report
completed and signed by Complainant, Wanda Pangallo, on October
10, 1992, on October 11, 1992, on October 20, 1992 or on October
25, 1992 (RX 5).
9. The testimony of Complainant, Wanda Pangallo, that driver's
logs are falsified, "they're done everyday", and that she falsi-
fied driver's logs deliberately to help Mr. Pittman is not
credible (Tr 201-203).
10. There is no credible evidence that any other truck driver
employed by Respondent complained about the condition of vehicle
tires, the need for new tires and/or Respondent's failure or
refusal to arrange for installation of new tires.
11. On November 25, 1992, Clifford Pittman measured the tire
depth of the eight tires on truck 60972 with a gauge used by
Department of Transportation Vehicle Inspectors. No tire mea-
sured below five-thirty-seconds of an inch. Clifford Pittman
then well knew that 49 C.F.R. Section 393.75(c) provides that
drive tires shall have at least two-thirty-seconds of an inch (Tr
67-68). On December 1, 1992, the tire depth was measured at the
Pro Stop Travel Plaza, Mortons Gap, Kentucky. Depth ranged from
five-thirty-seconds of an inch to eight-thirty-seconds of an
inch. New drive tires were installed and the old tires were
accepted in trade by Pro Stop and sold as used tires (Tr 237).
12. The front or "steering" tires on truck 60972 were replaced
with new tires on November 8, 1992 (RX 9).
13. On November 11, 1992, while Complainant, Dominic Pangallo,
was driving truck 60972 in the vicinity of Fostoria, Ohio, the
left fuel tank was damaged during a skidding incident. The
damaged tank was not repaired, but was by-passed, which limited
driving range and necessitated more frequent fuel stops. The
damaged fuel tank was not repaired until November 27, 1992 (Tr
63, 90, 92, 133, 134 & 226).
14. Respondent arranged with Duckett's Truck Center, Calvert
City, Kentucky to receive from Pro Stop Truck Plaza new drive
tires for truck 60972 and to install new tires and repair the
damaged fuel tank any time after November 1, 1992 (Tr 61).
15. During the September 30, 1992 - October 2, 1992 period, Com
[PAGE 6]
plainant, Dominic Pangallo, initially refused to comply with a
TSI dispatch order to pick up a load in Wixsom, Michigan for
delivery to another destination. His stated reason was his
wife's illness and his desire to return to his Ohio home.
Ultimately, he complied with the TSI dispatch order as a "favor"
to Respondent (Tr 328).
16. Truck 60972 was inspected approximately 34 times at the TSI
Dallas Terminal during the September-November, l992 period.
There is no evidence that any inspection revealed any defect
and/or need for any part or accessory repair or replacement.
17. Complainant, Dominic Pangallo, resisted Respondent's demands
that truck 60972 be returned to Puryear in early November, 1992
and assured Respondent that the damaged fuel tank would be
repaired and that the ordered new tires would be installed during
his off-time around the Thanksgiving holiday. Complainants
brought truck 60972 to Respondent's place of business in Puryear
on November 25, 1992 after considerable arguing with Clifford
Pittman and multiple telephone conversations.
18. Truck 60972 was inspected at the TSI Dallas, Texas facility
on November 24, 1992. When it was observed that the tire tread
was getting low, Safety Manager Joe Willis made a courtesy
telephone call to Clifford Pittman during which he advised that,
while no measurements had been made, the tires were getting low,
but no consideration was given to removing the truck from service
(Tr 224-225).
19. Respondent has never had a credit problem with and its credit
has never been limited by Pro Stop Travel Plaza (Tr 327).
Respondent's trucks have never been observed by Pro Stop Travel
Garage Manager, Harold Sloop, with substandard tires. Respondent
is considered one of Pro Stop Travel's "best customers" (Tr 327-
328).
20. Complainants arrived at Respondent's place of business in
Puryear at approximately 3:00 a.m. on November 25, 1992 (Tr 341).
Clifford Pittman directed Complainants to obtain their personal
items from the truck and proceed to their residence (Tr 341).
21. A decision was made by the Pittman family during the day of
November 25, 1992 to terminate Dominic Pangallo due to his
failure to follow the vehicle inspection and preventive mainte-
nance schedules enforced by Respondent, for being involved in
chargeable accidents, for insubordination and his "argumentative
attitude" (Tr 344 through 350).
[PAGE 7]
22. Complainant, Wanda Pangallo, was not terminated (Tr 363).
23. Complainant, Wanda Pangallo, placed a telephone call to
Respondent on November 27, 1992. She was informed by Clifford
Pittman that Dominic Pangallo was terminated. Clifford Pittman
had no conversation with Dominic Pangallo and did not personally
inform him of the termination decision (Tr 361).
24. Complainant, Dominic Pangallo, was not a credible witness.
On direct examination his answers to Counsel's questions were
wholly responsive and complete. On cross-examination he was
evasive and hesitant. On occasion, his answers were mostly self-
serving and unresponsive. It was considered necessary to
admonish him for making speeches (Tr 373).
25. The tires on vehicle 60972 were worn, but were within the
established regulatory standard.
26. There is no evidence that either of Complainants, at any
time, refused to drive vehicle 60972.
CONCLUSIONS OF LAW
1. Section 405(b) of the STAA prohibits discriminatory treatment
of employees for refusing to operate a vehicle because of the
employee's reasonable apprehension of serious injury to himself
or to the public due to the unsafe condition of such equipment.
This ground for refusal to drive also requires that the unsafe
condition causing the employee's apprehension of injury must be
such that a reasonable person, under the circumstances, would
perceive a bona fide hazard and the employee must have sought
from his employer, and have been unable to obtain, correction of
the unsafe condition. Hadley v. Southeast Coop. Service
Company, 86-STA-24 (Sec'y June 28, l99l).
2. The employee protection provision of the STAA also prohibits
an employer from discharging or disciplining an employee for
refusing to operate a motor vehicle when such operation consti-
tutes a violation of any Federal rules, regulations, standards or
orders applicable to commercial motor vehicle safety.
Boone v. TFE, Inc., 90-STA-7 (Sec'y July 17, 1991).
3. Neither under the Federal violation clause nor under the
reasonable apprehension clause of the STAA is the employee
[PAGE 8]
protection provision triggered unless there is proof of work
refusal. 49 U.S.C. app. Section 2305(b). Since there is no
evidence that either Complainant refused to drive, Part (b) of
Section 2305 is not applicable.
4. The employee protection provision in 49 U.S.C. app. Section
2305 (a), covers situations where a complaint has been filed or a
proceeding instituted relating to a violation of a commercial
motor vehicle safety rule, regulation, standard or order. Work
refusal is not an element of Part (a).
5. The complaint filing requirement of Part (a) is satisfied by
an employee's oral safety violation complaints made to his
employer and a subsequent oral complaint made to the U.S. Depart-
ment of Labor by the employee. Hernandez v. Guardian Purchas-
ing Co., 91-STA-31 (Sec'y June 4, 1992); Barr v. ACW Truck
Lines Inc., 91-STA-42 (Sec'y April 22, 1992).
6. This case is governed by and must be and is adjudicated under
49 U.S.C. app. Section 2305(a).
7. Complainants engaged in protected activity when either or both
of them complained about the condition of the tires on truck
60972.
8. Respondent was aware of the protected activity in which
Complainants engaged.
9. However, operation of Respondent's Truck 60972 by Complainants
did not violate a commercial motor vehicle safety rule, regula-
tion, standard or order.
l0. Respondent took adverse employment action against Complain-
ant, Dominic Pangallo. While Respondent took no direct adverse
employment action against Complainant, Wanda Pangallo, the
discharge of Dominic Pangallo operated to force her to acquire a
new driving partner acceptable to Respondent. Her inability or
refusal to do so effectively ended her employment with Respon-
dent.
11. The presumption of disparate treatment triggered by and
through Complainant's presentation of a prima facie case (Tr
218), is rebutted by Respondent's proof that the employment
action taken was solely motivated by legitimate, nondiscriminato-
ry business reasons. The evidence does not support a finding
that Respondent was motivated, in whole or in part, by
Complainants' protected activity.
[PAGE 9]
12. Complainants have not proved that it is more probable than
not that Respondent, in taking adverse employment action, was
motivated by a discriminatory reason, nor have they shown that
Respondent's reasons for taking adverse employment action are
unworthy of belief.
13. The evidence in this case is susceptible of no conclusion but
that Respondent would have reached the same employment decision
even in the absence of the protected activity in which Complain-
ants engaged.
RECOMMENDED ORDER
WHEREFORE, IT IS RECOMMENDED that the Complaint filed on January
29, 1993 by Dominic Pangallo and Wanda Pangallo, be DISMISSED.
BERNARD J. GILDAY, JR.
ADMINISTRATIVE LAW JUDGE
[ENDNOTES]
[1] ALJX refers to Administrative Law Judge Exhibit; JX refers to
Joint Exhibit; RX refers to Respondent Exhibit; Tr refers to
Transcript of Proceedings.
