U.S. Department of Labor Office of Administrative Law Judges
Commerce Plaza
603 Pilot House Drive, Suite 300
Newport News, VA 23606
DATE: October 2, 1995
CASE NO.: 94-STA-54
In the Matter of
RICKY L. BROWN,
Complainant
v.
WILSON TRUCKING CORPORATION,
Respondent.
Appearances:
Leonard J. Spooner, Esq.
For the Complainant
John Skinner, Esq.
Craig Siegenthaler, Esq.
For the Respondent
BEFORE: Richard K. Malamphy, Esq.
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This proceeding arises under Section 405, the
employee protection provision, of the Surface Transportation
Assistance Act, 49 U.S.C. §2305 (1982) (hereinafter "the
Act"), and the implementing regulations set out at 29 C.F.R.
[Page 2]
Part 1978 (1988). In order to promote safety on the Nation's
highways, the Act and the regulations prohibit covered employers in
the transportation industry from discharging or otherwise
discriminating against employees who have engaged in certain
protected activities. More specifically, the Act protects
employees from discharge, discipline, or discrimination for filing
a complaint about commercial motor vehicle safety, testifying in a
proceeding regarding such safety, or refusing to operate a
commercial motor vehicle when operation would violate a Federal
safety rule or when the employee reasonably believes it would
result in serious injury to himself or others.
STATEMENT OF THE CASE
On July 8, 1994, Complainant, Ricky L.
Brown, filed a complaint with the Secretary of Labor alleging that
he had been discriminatorily discharged for refusing to drive in
violation of the United States Department of Transportation
regulations in contravention of 49 C.F.R. Sections 172, 173, and
174 of the Hazardous Materials Act. Reportedly, he was fired for
refusing to load and transport an unlabeled drum of chemicals--with
broken seal (RX 1 - See preliminary matters).
Following an investigation on August 25, 1994,
the Regional Administrator, U.S. Department of Labor - OSHA,
dismissed the complaint based on a lack of merit under Section 405
of the Surface Transportation Assistance Act (RX 2).
In a letter dated September 12, 1994,
Complainant's counsel filed an appeal with the Office of
Administrative Law Judges.
The parties have stipulated that Wilson
Trucking Company is an employer as described in the Surface
Transportation Assistance Act, that Mr. Brown was a driver for the
employer, and that Brown was discharged by the employer (TR 6-7).
A formal hearing was held in Greenville, South
Carolina, on January 18 and 19, 1995, and on March 7, 8, and 9,
1995. During this time, all parties were afforded full opportunity
[Page 3]
to present evidence and argument as provided in the Act.
Post hearing briefs were filed and the record
was closed on July 17, 1995. Based upon a review of said briefs,
the entire record of this case, and the applicable law, I have
reached the following findings of facts and conclusions of law.
Where appropriate, consideration has been given to my observation
of the appearance and demeanor of the witnesses. Each exhibit in
the record has been given careful consideration whether or not it
is specifically mentioned in this recommended decision.
At the hearing, the Employer argued that the
case should be limited to the issue of improper labeling as stated
in RX 1 (TR 18). Complainant's counsel stated that the complaint
was filed by telephone and that RX 1 was an inaccurate account of
the conversation with Department of Labor personnel (TR 19-20).
The Secretary's findings, as part of the August
25, 1994, report from the Regional Administrator, indicated that
the investigation considered complaints of mislabeling, lack of
training in handling hazardous chemicals, and safety concerns due
to chemical exposure (RX 2).
Notwithstanding the possible lack of notice
prior to the administrative hearing, due process is not offended if
an agency decides an issue the parties fairly and fully litigated
at a hearing. When parties fully litigate an issue, they obviously
have notice of the issue and have been given an opportunity to
respond. This satisfies the requirement of administrative due
process. Yellow Freight System, Inc. v. Martin, 954 F.2d
353 (6th Cir. 1992). This circuit emphasized in Martin that
"[t]he fundamental elements of procedural due process are
notice and an opportunity to be heard." Yellow Freight
System, Inc. v. Reich, 27 F.3d 1133 (6th Cir. 1994).
The undersigned must conclude that the
Respondent had adequate notice of the Complainant's three
allegations in view of the investigative report from the regional
[Page 4]
administrator (see RX 2). Therefore, this case will not be limited
to the one issue raised in RX 1 (see Brame v. Consolidated
Freightways, Case No. 90-STA-20, Sec. Final Dec. and Order June
17, 1992).
CONTENTIONS
The contentions in this case focus on the
following:
1. Labeling of the drum in question.
2. Training in handling of Nalco
Chemical Company drums.
3. Reasons for Complainant's
discharge.
The Complainant argues that the drum in
question was unlabeled and that he refused to transport the drum
because of that defect and because of a reasonable apprehension for
his safety. Mr. Brown asserts that he had not been trained in the
delivery of hazardous materials that were made by Nalco.
In addition, the Complainant states that he was
discharged in retaliation for protected activity under the
provisions of Section 11(c) of the Occupational Safety and Health
Act of 1970, 29 U.S.C. §660(c). The pertinent complaints
are his lack of a respirator and his lack of training in handling
hazardous materials.
The Respondent argues that the drum was
properly labeled and that Brown was discharged as he refused to
pump the contents of the drum into a base unit at a customer's
site.
In addition, the Respondent argues that with
respect to the pumping procedure itself, this Court does not have
jurisdiction over the issues raised by Brown. Not only did Brown
fail to mention this in his Complaint (RX 1), but also, even if he
had, these types of claims are not governed nor protected by
[Page 5]
§405, or any other section of the STAA. Finally, even
assuming this Court had jurisdiction over these claims, Brown
failed to establish that the pumping procedures presented any
genuine threat to his health and safety such that his termination
for refusing to pump the contents of the drum would be considered
a violation of the STAA or OSHA.
HISTORY
At the hearing on January 19, 1995, Brown
testified that he began working as a truck driver for Wilson about
four years ago and that he was terminated on March 30, 1994 (TR
373). He was certified as a commercial truck driver and was
certified to haul hazardous materials. Mr. Brown testified that he
had not received training by the Nalco Chemical Company.
On February 28, 1994, Brown was scheduled for
his third delivery of "bifusites in organic aqueous," in
a Nalco drum. (See RX N for identification of this chemical.)
Normally, a driver would take such a drum from the terminal with
the Nalco mini porta-feed chemical handling system and one or more
nitrogen tanks. However, on February 28, the drum was transferred
to him on the road by Virginia Livingston, the dock foreman.
The proper procedure for delivering such a
chemical to a customer is indicated by the Nalco Transfer
Procedures for Delivery Specialists (RX 11), the Nalco video
tape (RX 3), and by the testimony of James Nardone from Nalco (TR
816-912).
Brown testified that he ran out of nitrogen in
the pumping procedure on February 28. Brown called Floyd Pepper,
a leadman supervisor for the Respondent. The Complainant stated
that he would try to obtain nitrogen from the customer, Grover
Industries, or would try to elevate the drum with a fork lift for
a gravity feed. (See RX 10, p. 27, deposition of Floyd Pepper.)
Pepper testified, by deposition, that:
A. The second time Rick called back he
informed me that he could not find a forklift
[Page 6]
or nitrogen, and he had tried to disconnect it
from the cylinder to bring it back and that he
had spilled some. He said it made him a
little dizzy, and I asked him if he was okay
to drive back or did I need to send somebody
up there to get him, and he assured me he was
fine.
Q. Was anything else said during that
conversation?
A. No, sir, other than, you know, he said that he
would be okay and he was going to put the drum and
the equipment back on the truck and drive it in.
And then approximately 15 to 20 minutes later he
called back and said that he didn't feel like
driving back and could I send someone to get him
and at which point we did.
Q. Were you one of the ones that went up to get
him?
A. No, sir. I believe it was Donnie (the
terminal manager) and the shop man if I'm not
mistaken.
Q. Did you later talk with Mr. Brown about what
happened after he came back to work?
A. He explained that, you know--he just vaguely
told me what happened. He had tried to disconnect
it and had spilled some and the fumes had made him
sick.
Q. Is it part of the training here, Mr. Pepper,
that when you have a spill one of the first things
you're supposed to do is try to contain it if you
can do so?
A. Well, the first thing you're supposed to do is
[Page 7]
call the 1-800 number that's on every -- the bill
of lading and get instructions from Nalco because
different chemicals require different handling.
And I don't believe Ricky--I don't--to the best of
my knowledge, Ricky never called them to get any
instruction as to how to contain the spill (RX 10,
pp. 28 and 29).
During testimony, Brown described checking the
paperwork at Grover Industries, hooking the base unit to the
transporter drum, and then injecting the nitrogen into the drum (TR
383-4). He spoke with Pepper and stated that he would seek
additional nitrogen or attempt to use a fork in order to complete
the transfer.
As neither option was available, Brown shut off
the drum and base unit valves and put an absorbent material on the
floor to catch any spillage. During the disconnecting procedure,
a small amount of chemical spilled into the absorbent material.
Brown testified that:
Well, I stayed there to make sure none of it
got out and I just kept stirring the
absorbentaround to make sure
that it absorbed all the chemicals and then I
took some rags or cloth that was there and
wiped off the bottom of the drum and during
that process, cleaning it up, was when I got
hurt.
Q. How did you get hurt?
A. I couldn't breathe. I couldn't move. And I
don't know how long I was there. I just finally
got up enough strength to get out of the building
and get out into the fresh air.
Q. All right. So what did you do next?
[Page 8]
A. I sat out in the air long enough to get my
senses back and then I went and called Floyd
Pepper.
Q. The same fellow you had talked to earlier?
A. Yes, sir.
Q. Tell us what you told Mr. Pepper this time.
A. I told him what I had done and what had
happened and I told him that it made me sick,
couldn't--I was dizzy from it and I believe that's
about it (TR 386-7).
Thereafter, Brown loaded the truck, but drove
only about six miles before he became dizzy. Brown then called
Pepper who indicated that a mechanic and Donald Harkins, the
terminal manager, would bring him back. On their return,
Harkinstook Brown to the Exigent Medical Center. Brown
returned to work later than usual the next morning.
The record indicates that the drum in question
was sent from the Greenville terminal to the Wilson terminal in
Atlanta on March 2, 1994 (TR 1030, RX G). In Atlanta, it was
determined that the drum had not been emptied. Therefore the drum
was returned to Greenville on March 23 to complete the delivery at
Grover Industries.
LABELING ON "THE DRUM" ON MARCH 30,
1994
Virginia Livingston, the dock foreman,
testified that it was not her job to inspect each and every item of
hazardous material to see if appropriate labels had been attached.
Such duties were assigned to those who had gone through hazardous
material training. Livingston testified that:
Everybody in the terminal, billing clerks,
everyone who worked the dock and all the
[Page 9]
drivers, and they were--the procedures in
place were that when they took something off a
truck, that was coming in from the other
terminal, they would match the bill up to the
freight, and that they would make sure not
only did they have the right consignee or they
could go by the pro number, and they would
count the pieces and see if it was damaged.
But they would also match up the description
of the freight in the body of the bill to what
is the description and the label on the
freight.
Q. Okay. What, during your experience, from time
to time on occasion did any individuals report to
you that a item of hazardous material did not have
the appropriate hazardous material label on it?
A. I've had occasion where the wrong--either the
wrong label was on a piece of freight or a label
had fallen off.
Q. And was that reported to you by another
employee at Wilson Trucking?
A. Yes.
Q. Okay. In all of those occasions, what did you
do in response to that report?
A. I went out there and checked the bill of
lading and matched it up to the freight, and if it
indeed was wrong, I would fix it. I had labels in
the dispatch office. They were sitting out, and if
they were right, we just left them alone, or if
they just needed a label, we would put a label on
there.
Q. And approximately how long did the process
take?
[Page 10]
A. About two minutes.
Q. In your experience, did you ever ignore an
employee's report of a mislabeled hazardous
material?
A. No.
Q. Did you ever require an individual to take out
an item of hazardous material on the highways,
which was reported to you as being improperly
labeled?
A. No, sir.
Q. And why is that?
A. It's not legal. It's not right, and it's so
easy to fix, there's no reason for it (TR 1015-1017).
Brown testified that following his injury he
made copies of the bill of lading for the drum so that he would be
able to identify the drum if it were to be rescheduled for
delivery. (There is some confusion in the record as to whether or
not a delivery of this drum was scheduled for Grover Industries on
or about March 2, 1994.) The drum in question should carry a
hazard Class 8 label for a corrosive material (see RX M).
Brown and other drivers usually came to the
terminal early in the morning, and they would unload the incoming
trucks and trailers. The drivers would use bills of lading as
guides to load the outgoing trucks. Livingston testified that the
drivers checked the freight for damage and for proper labeling (TR
1016).
Brown testified that on March 30, 1994:
Livingston came out and handed me the bills
for the particular route that I was on that
day, and as I started loading the freight I
[Page 11]
got down to the bill of the drum I had gotten
hurt with, so I noticed serial numbers still
matched up with the drum, and went back there
and had not put a corrosive material label on
it, so I took the drum and I moved it down to
the back of my truck, because if it didn't
have a label on it then, maybe they was going
to get me a label to put on it before I take
it out.
Q. Did anybody else there that day see that drum
that you're talking about?
A. Jimmy Elder, Tony Findley, and Raylan Jackson.
Q. Why did they look at the drum?
A. Because I asked them to.
Q. Why?
A. Because I wanted them to see that it did not
have a hazardous material label on it.
Q. What did you do after you determined that it
didn't have the label on it, if anything?
A. I didn't do anything except take it and set it
on the back of my truck and go ahead and finish
loading my truck. And then I took the bills of
lading in there --
Q. In where now?
A. Into the dispatch office.
Q. All right. Go ahead.
A. Give them the bills of lading to make our the
manifests for the day's run, and then Virginia
Livingston asked me if I had enough nitrogen to do
[Page 12]
the job that day, and I told her I didn't need
enough nitrogen because I was not going to pump
that drum or transport that drum out.
So she said well, I'd have to talk to Donnie about
it.
Q. Did you tell her why you weren't going to
transport the drum out?
A. I told her that earlier that morning.
Q. When did you tell her that earlier that
morning?
A. Right after that I found out that the drum was
not labeled and I put it on the truck. She came by
and asked me about it, and about taking the drum
out, and I told her I was not going to take the --
transport the drum out because it did not have a
label on it and I had been hurt by it previously
and I did not have a respirator.
Q. What did she say when you said that?
A. She said I'd have to take it up with Donnie
Harkins. (TR 410, 411)
Livingston testified that on March 30, Brown:
...said that the seal was broken on the drum,
and I said that was the drum you pumped
before, and that was the end of that
discussion.
Q. What seal was he referring to?
A. Just the one -- the one around the bottom, the
dust cap.
[Page 13]
Q. And can you describe what the seal looks like?
A. It's just a little wire twisty tie seal.
Q. Did he report to you anything about the drum
leaking or being unsafe?
A. No.
Q. At that time, did Mr. Brown say anything to
you about the drum being improperly labeled?
A. No, sir.
Q. Did he say anything to you about a need for a
respirator while engaging in this pumping or
transferring process?
A. No, sir. (TR 1046-7)
Later on March 30, Livingston asked Brown if he
had enough nitrogen.
Q. You asked him if he had enough nitrogen?
A. Yes.
Q. Why did you ask him that?
A. It was just in reference to his incident.
Over the course of the days following the accident
at Grover Industries, he had indicated that he had
run out of nitrogen.
Q. And what was his response?
A. His response was what do I need nitrogen for?
Q. What was said later in the conversation?
[Page 14]
A. I said to pump the drum, and he said I'm not
going to pump the drum because of what, you know.
I said what are you going to do with it, and he
said I'm going to carry it around, but I'm not
going to pump it.
Q. What did you understand carry around to mean?
A. Well, I had, in my walks around the dock, I
had seen the drum on his truck. I didn't go up to
it and check the labels on it to make sure it was
the one for Grover Industries, but he had a Nalco
drum on the truck.
Q. Did you see any equipment on the truck with
the drum?
A. There was equipment on the truck.
Q. And would this Nalco equipment?
A. Yes, sir.
Q. Okay. So that morning, during the second
conversation that you had with him in the office,
did he say anything about the drum being improperly
labeled?
A. No, sir. The only -- the rest of the
conversation was we'll go back to Donnie about
this is what I said, and he said we won't talk
about anything, you can talk to Donnie. And I went
around the corner and told Donnie. (TR 1047-9)
James Nardone, a trainer from Nalco, testified
that if the seal was broken on a drum dust cap, the only concern
was whether or not the bottom valve on the drum was closed (TR 880-1).
Brown met with Harkins and Ralph Myers, the
safety supervisor, and Brown stated that:
[Page 15]
We discussed the drum and I told them that I
was not going to transport that drum because
it did not have a hazardous material label on
it, and I had gotten hurt by it, and I did not
have a respirator. (TR 412)
Thereafter, Harkins informed Brown that Wilson
no longer required his employment.
Tony Findley, Raylan Jackson, William Elder,
and Sammy Hughes testified, in effect, that after the February 28
injury and or on March 30, 1994, Brown pointed to a Nalco drum and
stated that this was the drum that caused his injury. Brown stated
that the drum did not have a corrosive label, such as RX M, and
these drivers concurred in that assessment. However, all four
drivers acknowledged that they did not check the billing of lading
to see whether or not a corrosive label was required. (TR 190-371)
Ralph Myers testified that Brown went through
the Wilson hazardous materials course when he was hired in 1990.
Myers stated that Brown made no mention of improper labeling after
the injury or during the meeting with Harkins on March 30.
Myers testified that Brown stated that he had
been injured by the contents of the Nalco drum and that he would
not pump those products again. Harkins indicated that Brown would
be dismissed for refusing to deliver the drum (TR 1110). Myers
stated that Brown did not mention use of a respirator on March 30,
prior to the hearing for unemployment benefits when mis-labeling
was reported.
During testimony by Donald Harkins, the
following occurred:
Q. And what procedures or practices are in
place at Wilson to verify that each hazardous
material is properly labeled?
A. Well, then they're unloaded from the trucks,
the dock workers should be checking them, and if
they have any problem, if the bill doesn't match up
[Page 16]
with the freight, they're supposed to contact their
immediate supervisor.
Q. Let me give you a hypothetical situation. In a
situation where an employee is going to load a
hazardous material onto one of the Wilson trucks,
what procedures would that employee follow during
the loading process?
A. First of all, he takes the bill that he has to
load, takes the bill over to the freight that he
thinks corresponds with it, checks it as far as the
labels, as far as making sure the destinations are
correct, piece counts are correct, and also, if
there's a hazardous material, make sure that all
the hazardous information is correct and all the
proper labels and everything is listed.
Q. And after doing that procedure, what does the
employee do?
A. Then they go and load the trailer, and sign off
the travel copy.
Q. And the "trailer" copy you're
referring to, what does that refer to?
A. The travel copy is the copy of the actual bill
of lading. We put a template at the bottom of it,
and the travel copy goes terminal to terminal with
the freight until it reaches its final destination
or destination terminal.
Q. In a situation where an employee was going to
load hazardous material, and the employee notices
there the item did not have the appropriate
hazardous material label on it, is it permissible
for that employee to go ahead and sign off on the
travel copy and then sometime later correct the
labeling problem?
[Page 17]
A. No.
Q. Why is that?
A. The procedures we set up is whenever you
load a shipment, you sign it off then. Not
until then. (TR 694-5)
Harkins testified that the drum had been loaded
on a truck on March 30 as indicated by the documents. Livingston
informed Harkins that Brown would carry the drum but would not make
the delivery. Harkins told Brown of the consequences of not making
the delivery. Brown made no mention of improper labeling, and
Harkins indicated that such a defect could be easily remedied.
Harkins testified that:
Ricky said that he was not going to pump the
drum, and that he thought more of himself and
his family than to go out and pump it under --
you know, that he basically refused to, and if
he needed to look for another job, that's what
he would do.
Q. And what was your response to that?
A. I explained to him that if he failed to perform
the drum pump, I'd have no other, nothing else to
do but to dismiss him. (TR 742-3)
DISCUSSION
Despite the allegations of the Complainant, the
testimony of Harkins and Myers suggest that Brown made no
complaints of improper labeling to Wilson management, Harkins or
Myers, on March 30, 1994. Livingston was specific in the
procedures for moving freight in the terminal, and the drivers
substantiated the policy of checking and signing off at various
steps in the transfers.
[Page 18]
The record suggests that Brown verified the
freight when he loaded his truck on March 30, 1994 (see RX L). The
four drivers who testified regarding an unlabeled drum were
uncertain as to the contents of the drum or the necessity for a
hazardous chemical label.
On review of the record, I must conclude that
there is no substantiation that the drum in question was in
violation of pertinent regulations regarding transport of hazardous
materials. Parts 172, 173, and 177 of 49 C.F.R. have been
considered.
In addition, one must question whether or not
Mr. Brown meets the definition of a "whistleblower."
Complainant must first make a primafacie showing
that protected activity motivated Respondent's decision to take
adverse employment action.
In order to establish a primafacie case, a complainant must show that: (1) he engaged in
protected conduct: (2) the employer was aware of that conduct; and
(3) the employer took some adverse action against him.
In the previous discussion, this Administrative
Law Judge has followed Brown's contention that he engaged in
protected conduct by reporting mislabeling, a safety concern
involving the cargo, to his supervisors. However, Livingston,
Myers, and Harkins have testified that the complainant did not
raise such a concern on March 30, 1994.
The STAA requires that the employer have notice
that a safety concern has been raised. Therefore, I find that
Brown has not established a primafacie case that his
complaints regarding mislabeling played a part in his dismissal.
NALCO TRAINING
The Nalco Chemical Company utilizes a mini
porta-feed chemical handling system to deliver products to its
customers. The record indicates that Brown made some 200
deliveries of non-hazardous chemicals for Nalco and three
[Page 19]
deliveries of an oxygen scavenger.
Brown was trained in "Nalco
procedures" by Floyd Pepper, a Wilson employee. Brown has
maintained that he never was trained by Nalco personnel and there
is no documentation to the contrary.
James Nardone, a senior transportation analyst
for Nalco, testified that he was responsible for training common
carrier drivers in the delivery of Nalco products. Nardone
acknowledged that Nalco could not confirm that Brown had received
Nalco training in the use of the mini porta-feed system. Nardone
testified that training was to be done by Nalco personnel. It
would be unacceptable for a driver who had received the training to
train another driver (TR 864).
DISCUSSION
The record shows that Brown was not trained by
Nalco personnel and that the Nalco trainer, Nardone, considered
Brown's training to be deficient, at the very least. There is no
doubt that Brown expressed a legitimate concern when he refused to
make further Nalco deliveries which involved the delivery of
freight after the truck had reached its destination.
Section 405 of the STAA deals with compliance
with safety regulations governing commercial motor vehicles.
Section 405 contains two provisions relevant to the disposition of
this case. Section 405(a) prohibits a commercial motor carrier
from discharging, disciplining, or discriminating against an
employee in retaliation for filing a complaint or starting a
proceeding relating to a violation of a commercial motor vehicle
safety provision, or for testifying in such a proceeding. Section
405(b) prohibits a commercial motor carrier from discharging,
disciplining, or discriminating against an employee who refuses
either to operate a commercial motor vehicle he believes is unsafe
or to operate the vehicle under conditions that would violate any
federal provision applicable to commercial motor vehicle safety or
health.
As the complaint was filed after Brown's
[Page 20]
dismissal, this case falls under Section 405(b) rather than 405(a).
Section 405(b) states that 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 for refusing to operate a
vehicle when such operation constitutes a violation of any Federal
rules, regulations, standards, 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 unsafe condition of such equipment. The unsafe conditions
causing the employee's apprehension of injury must be of such
nature that reasonable person, under the circumstances 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.
The undersigned previously concluded that the
drum was not mislabeled based on the testimony of Harkins and Myers
and the four drivers. Despite Brown's allegations of mislabeling,
his signature on RX L strains his credibility based on his
reputation for thoroughness prior to March 30, 1994.
The record does not establish that driving the
truck on March 30 would have been in violation of a federal rule.
Truck safety defects were not alleged, and the existence of the
drum, during transit, was not a health hazard.
In essence, Brown was concerned about pumping
the hazardous chemical after the drum was removed from the truck.
I must agree with the Respondent that this
situation falls outside of the provisions of the STAA. Brown was
concerned with duties that were beyond the driving of a truck.
This Administrative Law Judge has jurisdiction under the STAA which
is concerned with the hours of the driver and the safety of the
vehicle and its contents.
[Page 21]
However, the undersigned concludes that a case
has not been made under the STAA as mislabeling has not been
documented and as the remaining allegation deals with matters
occurring after the cargo has been removed from the vehicle.
In Mace v. Ona Delivery Systems, Inc.,
Case No. 91-STA-10, Sec. Dec. January 27, 1992, it was noted that
the Complainant's complaints centered on his extra job assignments,
rather than on perceived safety violations (relating to the STAA).
See Foley v. J. C. Maxwell, Inc., Case No. 95-STA-11, Sec.
Dec. July 3, 1995.
REASONS FOR COMPLAINANT'S DISCHARGE
Mr. Brown was discharged as he refused to
deliver freight as ordered. As there was no hours of service
violation in the assigned trip and as there were no safety
violations in the truck or in the cargo, I find no violation under
STAA.
Mr. Brown may well have raised legitimate
issues as to Nalco training and the use of a respirator under the
Occupational Safety and Health Act of 1970 (29 U.S.C. 651; 29
C.F.R. Part 1977). However, the Office of Administrative Law
Judges does not have general jurisdiction and is limited to
jurisdiction under specific Acts. I do not find that I have
jurisdiction regarding the above complaints.
RECOMMENDED ORDER
On the basis of the foregoing, I recommend that
the complaint filed (under the STAA) by Ricky L. Brown be
dismissed.
SO ORDERED
RICHARD K. MALAMPHY
Administrative Law Judge
RKM/dlh
Newport News, Virginia
NOTICE: This Recommended Decision and Order and the administrative
file in this matter will be forwarded for review by the Secretary
of Labor, Room S-4309, Frances Perkins Building, 200 Constitution
Avenue, N.W., Washington, DC 20210. The Office of Administrative
Appeals has the responsibility to advise and assist the Secretary
in the preparation and the issuance of final decisions in employee
protection cases adjudicated under the regulations of 29 C.F.R.
Parts 24 and 1978. See 55 Fed. Reg. 13250 (1990).
[ENDNOTES]
1The following
abbreviations will be used as citations to the record: