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

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).

    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

§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.

    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

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

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 absorbent around 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?

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, Harkins took 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.

    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

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?

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

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

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.

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?

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:

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

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?

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)

    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.

    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 prima facie showing that protected activity motivated Respondent's decision to take adverse employment action.

    In order to establish a prima facie 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 prima facie case that his complaints regarding mislabeling played a part in his dismissal.

    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

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).

    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

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.

    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.

    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.

    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).