Case No.: 88-STA-24

In the Matter of:

Timothy C. Ertel,
    Complainant

   v.

Giroux Brothers Transportation, Inc.
    Respondent

Appearances:
    Kevin, Sullivan, Esquire
       For Department of Labor

    John D. O'Reilly, Esquire
       For Respondent

Before: CHESTER SHATZ
    Administrative Law Judge

    This case arises under the Surface Transportation Act (STA), 49 U.S.C. 2305. Complainant alleges that Respondent had engaged in retaliatory action by firing him on November 17, 1987 because of his engaging in protected activity (i.e. refusing to drive an "out-of-service" tractor). For reasons below, I find on the evidentiary record that the claim should

be denied.

    At the hearing held in Boston, Massachusetts on August 3, 1988, Complainant was represented by the Regional Solicitor's office (Boston) and Respondent was represented by John D. O'Reilly, Esquire of Framingham, Massachusetts. The witnesses presented on behalf of the Complainant were Complainant himself, Mr. Robert Molla, and Ms. Barbara Oaks. The only witness called by Respondent was Mr. James Giroux, Respondent's terminal manager. Respondent originally requested permission to take a post-hearing deposition of a Mr. Ames, one of respondent's dispatchers at the relevant time, who could not appear because of being hospitalized at time of hearing. Such permission was granted by me, but at the close of the hearing Respondent waived its right to take such deposition. I draw no adverse inference from the failure of Mr. Ames to appear at the hearing and no adverse inference from Respondent's waiving its right to take a post-hearing deposition. This recommended decision is made upon my review of the record before me.

    1. Respondent, Giroux Brothers Transportation, Inc., is engaged in the interstate trucking business, and maintains a regular place of business in Worcester, Massachusetts. In the regular course of business, its employees operate motor vehicles in interstate commerce, and Respondent currently owns approximately seventy trailers and thirty-five tractors.

    2. Gary Giroux is Respondent's terminal manager and actually is in charge of the running of Respondent's business. His assistant, or "right-hand" man was a Mike Ames whose primary duty consisted of acting as Respondent's dispatcher. James Giroux, Gary's brother, is the chief mechanic in charge of two other mechanics. Their duties consisted of repairing and maintaining the fleet of trailers and tractors Respondent owns.

    3. Complainant, Timothy C. Ertel, commenced working for Respondent on October 12, 1987. Prior to being hired by Respondent, Complainant never worked as a tractor-trailer driver but did complete an eight-week training course at the New England Tractor-Trailer Training School in Somers, Connecticut. When hired by Respondent in October, 1987 Complainant was informed that he would earn $10 an hour during

a thirty-day probationary period, and that thereafter he would earn $11.15 an hour plus all fringe benefits paid to non-probationary drivers.

    4. Complainant ran into difficulties during his probationary period. Both Gary Giroux and Mike Ames were not satisfied with his delivery times since they thought he was too slow in reaching his required destinations after leaving Respondent's terminal in the early morning. In fact, Complainant has admitted in a written statement (Respondent's X 3) that "the dispatcher, Mike (Ames) and dispatcher, Gary Giroux, used to hassle me about working faster.")

    5. In addition to the difficulty Complainant had in making timely deliveries, he was involved in two accidents, both of which were due to faulty driving on his part.

    6. Because of dissatisfaction with Complainant's performance, Gary Giroux decided a few days before November 13, 1987 that he would not keep Complainant as an employee afer his thirty-day probationary period was over. There is conflicting testimony on this issue. on the one hand, Gary testified that he told Complainant of his intention to fire him, and that Complainant then asked that he be kept on as a driver until at least after the first of the year because trucking firms do not usually hire during the holiday season i.e. (Thanksgiving. through New Year's day). Gary Giroux testified further that he agreed to keep Complainant on as a driver but only on a continuing probationary basis and at $10 an hour. Complainant, on the other hand, testified that Gary Giroux never told him that he was going to retain Complainant as a driver on a continuing probationary basis but rather informed him a few days before his thirty-day probationary period would end that he would take him off probation and pay him $11.15 an hour plus fringe benefits. In resolving the conflicting testimony, I have taken into account the demeanor of the two witnesses. I found Mr. Giroux to be a straightforward witness and a candid one, while on the other hand I found Complainant's testimony in many respects to be evasive, vague, inconsistent, and only self-serving. I thus find Mr. Giroux's testimony to be credible and further find that Complainant's recollection to be faulty. Accordingly, I fully credit Mr. Giroux's version of events and find that Respondent, prior to the expiration of the Complainant's thirty day probationary period, had decided to fire him because of its dissatisfaction with his work, and that

only after discussing the matter with Complainant agreed to extend the probationary period beyond the original thirty-day period in an effort to give Complainant a chance to improve work performance. However, for reasons discussed immediately below, Complainant's work performance did not improve but rather worsened at least in the eyes of Respondent's management.

    7. In connection with the above, on November 13 and 17, 1987 Complainant was stopped by authorities while on the road and his truck was placed "out of service" because of certain equipment deficiencies, including faulty lights, faulty brakes, excessive steering lash, fuel leaks and air leaks (See CX 3, CX 4 and Respondent X 5). Respondent's management concluded (whether correctly or incorrectly) that some of the cited deficiencies could have been remedied at the terminal before Complainant departed on his route if he had adequately performed his required pre-trip vehicle inspection before leaving the terminal.

    8. With regard to the incident occurring on November 17, 1987 Complainant was stopped in Connecticut by a state inspector who found faulty brakes, a fuel leak, excessive steering lash, faulty lights, and a problem with air pressure. I find the deficiencies of faulty lights, faulty brakes, and excessive steering lash should have been discovered by Complainant if he had adequately performed the required pre-trip inspection. In any event, as a result of the deficiencies found, the state inspector placed an out-of-service sticker on the tractor and trailer (An out-of-service sticker precludes the driving of the vehicles until a mechanic certified that the deficiencies have been corrected). As a result of being put out-of-service, Complainant called Respondent arid spoke to both Gary and James Giroux who informed him that they would hire a local mechanic to correct the deficiencies. That mechanic did arrive later at the place where the Complainant's truck was parked and was able to repair the trailer brakes but could not perform repairs on the tractor at the side of the road because the repair-work required special tools. The Girouxs then directed the mechanic to tow the tractor to his place of business in Connecticut and await further instructions. Such instructions finally came, and the mechanic was directed to tow the tractor over the state line to a parking area in Southbridge, Massachusetts. James

Giroux requested the Complainant drive the tractor back to the terminal after it was towed to Southbridge, but he refused to do so because the deficiencies had not been repaired and the tractor was still out of service.

    9. James Giroux was not happy about that response, but nonetheless he knew that Complainant was acting within the law by refusing to drive an out-of-service vehicle whose cited deficiencies bad not been corrected so he informed Complainant to standby the tractor after it was towed to Southbridge, and that he and Gary Giroux would drive from the terminal to Southbridge and attempt to correct the cited deficiencies. After arriving where the tractor was parked in Southbridge, Gary effected some but not all required repairs, removed the out-of-service sticker, and then drove the tractor back to the terminal. In the meantime, Complainant drove back with James Giroux in the vehicle he had driven from the terminal to Southbridge. Complainant testified that one of the Giroux brothers stated on arrival that Complainant "could have driven it back to Worcester", and that in response Complainant stated "well, I'm not putting my license on the line for you." (TR 65) The only other conversation concerning his refusal to drive the out-of-service tractor occurred during his drive back to the terminal with James Giroux when he stated that he hoped he would not get "into any trouble for not driving the tractor back" (TR 67). James Giroux did not respond at all, and no further conversation between James Giroux and Complainant took place.

    10. When Complainant and James Giroux returned to the terminal sometime in mid-afternoon, both went their separate ways with Complainant reporting to his dispatcher, Mike Ames. He asked whether he had any further work that day, and Mr. Ames replied in the negative but told him to wait because he thought one of the Giroux brothers wanted to talk to him. Complainant then jokingly stated that because of the many instances when the tractors broke down or were put out of service, the company should put sleepers on the tractors so that drivers could at least catch up on rest while waiting for a repairman to arrive. The discussion then proceeded to get heated with Mr. Ames informing Complainant that the breakdowns and recent out-of service situations probably could have been avoided if Complainant would have adequately performed his pre-trip vehicle inspection. Additionally, Mr. Ames told Complainant

that he had been, and still was, too slow in making his deliveries. Finally, Complainant could no longer stand receiving criticism of his work, and he told Mr. Ames "either let me work or fire me." Mr. Ames did not respond to that statement, and Complainant, refusing to let discretion be the better part of valor, again threw down the gauntlet and said, "either work me or fire me." Mr. Ames, apparently at that point had enough, and thus fired Complainant.

    11. There has been no evidence presented that Mr. Ames, during the discussion which ultimately evolved into the firing of Complainant, ever mentioned or displayed any knowledge or displeasure about Complainant's refusal to drive the out-of-service tractor from Southbridge to the Respondent's terminal. Moreover, there has not been any credible evidence presented that Mr. Ames actually knew that Complainant had refused to drive the out-of-service tractor back to the terminal prior to the time he fired him. In fact, Complainant has conceded that "in his opinion he was fired for being too huffy" to Mr. Ames (TR 70).

    12. After being fired by Mr. Ames, Complainant did not make any appeal to either of the Giroux brothers but instead immediately departed from the terminal. He did return a few days later to pick up his last check and had a conversation with Gary Giroux about liking his job with Respondent and indicating that he would like to return to work. Gary refused to rehire him but did give him names of other trucking firms who were looking for drivers. It is clear from Complainant's testimony that nothing was said in this discussion with Gary Giroux about being fired for his refusal to drive the out-of-service tractor on November 17, 1987.

    13. Shortly after receiving his last check from Respondent, Complainant filed a letter with either the Department of Transportation (DOT) or the Department of Labor (DOL) complaining about certain violations of Department of Transportation Regulations by Respondent regarding keeping of logs, hours of work, and required safety reports. He also stated therein that he refused to drive an out-of-service tractor, and that "he was fired for it" (Respondent's X 2). This written complaint triggered two separate investigations, one by Department of Transportation for the alleged violations of its safety regulations, and one by Department of Labor

concerning whether or not Claimant's firing was due to retaliatory action on the part of the Respondent for Complainant's refusal to drive an out-of-service tractor. The Department of Transportation investigation apparently resulted in an enforcement action and a civil fine against Respondent for matters not directly related to Complainant's firing. Thus, whatever the results of the Department of Transportation investigation, they have no relevancy to the current issue before me - namely, nature of firing Complainant, was taken by Respondent in violation of the surface Transportation Act for his refusal to drive an out-of-service tractor.

    14. The government investigator from Department of Labor to whom the retaliatory action complaint was assigned testified that Mr. Gary Giroux told her that he had planned to terminate Complainant's employment because of poor job performance occurring prior to the incident on November 17, 1987 and that in any event Complainant had been fired on November 17, 1987 "because he had words with Mr. Ames." (TR 122). She also stated that her interview with Mr. Ames indicated that he felt that claimant was too slow in making deliveries, and that he had informed complainant of this fact during their discussion on November 17, 1987. He also indicated that Claimant was "fired because of his repeated statements about "if you don't like my work, fire me," and he clearly indicated that his decision to fire complainant was in no way related to "the truck that day." (TR 124 and 126).

    15. A careful review of the investigator's testimony indicates that she did not uncover any direct evidence that Complainant was fired because of his refusal to drive the out-of-service tractor on November 17, 1987. Moreover, her testimony does not reflect in any way that Mr. Ames actually knew, prior to his firing Complainant, that Complainant had refused to drive the out-of-service tractor as requested by the Giroux brothers.

    16. Finally, it is clear from Complainant's own statement given to the government investigator on January 12, 1988 (Respondent's X 3) that no one had told him that he was being, or had been fired, for his refusal to drive an out-of-service tractor. Rather, his statement was "I believe I was fired because I refused to drive an out-of-service tractor."(Emphasis added). Of course such a belief is pure conjecture on the part

of Complainant. Moreover, his statement indicates that Respondent had been unhappy with his work because of his being slow long before he was fired on November 17, 1987, and that he was repeatedly "hassled" about his being slow by both Gary Giroux and Mr. Ames.

    17. Since his being terminated by Respondent, Complainant worked for several trucking companies, and is presently working as a spare driver with another firm.

    In resolving the dispute before me, I am bound by the evidentiary record presented by the parties and not by the finding below my level. As stated above, I find no direct evidence indicating that Complainant was fired because of his refusal to drive an out-of-service tractor on November 17, 1987. Moreover, there has been no credible evidence presented indicating that at the time Complainant was fired that Mr. Ames actually knew Complainant had refused to drive the tractor back to the terminal. Thus, I do not find that Complainant was fired because of his refusal to drive the tractor. Rather, the evidence indicates to me that Complainant was fired because of "the words" he had with Mr. Ames on November 17, 1987. In this regard, the evidence indicates to me that Complainant actually instigated his own firing. I conclude that he actually dared Mr. Ames to terminate his employent. He stated not once, but twice, words to that effect "either work me or fire me." I conclude that such conduct on Complainant's part was extremely provocative and that under those circumstances, the action taken by Mr. Ames in terminating Complaint's employment was not unreasonable or taken in retaliation for Complainant's refusal to drive the out-of-service tractor.

    Accordingly, I find that the claim alleging Complainant was fired for refusing to drive the out-of-service truck to be without merit.

    It is hereby my recommended decision and order that the claim of Complainant be DENIED.

       CHESTER SHATZ
       Administrative Law Judge

Dated: OCT 19 1988
Boston, Massachusetts