1There is presently a vacancy in the
office of Secretary of Labor. The Deputy Secretary is authorized to "perform the duties of
the Secretary until a successor is appointed. . . ." 29 U.S.C. § 552 (1982);
Department of Labor Executive Level Conforming Amendments of 1986, Pub. L. No. 99-619
(November 6, 1986).
CORRECTED COPY
U. S. Department of Labor
In the matter of:
Blue Springs Hatchery/Underwood
Case No.: 4-0350-87-510
Section 405 Complaint
SECRETARY'S FINDINGS
Pursuant to Section 405 of the Surface Transportation Assistance Act of
1982 (hereinafter, "STAA") (49 U.S.C. 2305), complainant Charles W. Underwood,
filed a complaint with the Secretary of Labor alleging that respondents Blue Springs Hatchery
discriminatingly terminated complainant for his complaints about driving a truck when he had
insufficient rest. Respondent denied these allegations. Following an investigation of this matter
by a duly authorized investigator, the Secretary of Labor, acting through his agent, the Regional
Administrator, Region IV of the Occupational Safety and Health Administration, pursuant to
Section 405 of STAA, Secretary's Order 9-83, 48 FR 35736 (August 5, 1983), and CPL 2.45,
Chapter X (March 8, 1984), finds there is reasonable cause to believe the following:
1. (a) Respondent, Blue Springs Hatchery, engaged in interstate
trucking operations and maintained a place of business in Leeds, Alabama. In the regular course
of this business, respondent's employees operate motor vehicles with less than 10,000 pounds
capacity in interstate commerce principally to transport cargo. Respondent is not a commercial
motor carrier subject to Section 405 of the STAA.
(b) Respondent is now and, at all times material herein, has been a person
as defined in Section 401(4) of STAA (49 U.S.C. 2301(4)).
2. (a) In February 1986, respondent hired complainant Charles W.
Underwood as a driver of a motor vehicle, with a gross vehicle weight rating of less than 10,000
pounds.
(b) At all times material herein, Charles W. Underwood was not an
employee under the Act in that he was a driver of a motor vehicle having a gross vehicle rating of
less than 10,000 pounds used on the highways to transport cargo and in that he was not employed
by a commercial motor carrier nor, in the course of his employment, directly affected
commercial motor vehicle safety (Section 401(2)(A) of STAA (49 U.S.C. 2301(2)(A)).
3. (a) on or about March 27, 1987, complainant Underwood filed a
complaint with the Secretary of Labor alleging that respondent had discriminated against him in
violation of Section 405 of STAA (49 U.S.C. 2305(c)(2)(A)). The complaint was timely filed.
(b) The Secretary, acting through his duly authorized agents, thereafter
investigated the above complaint in accordance with Section 405 of STAA (49 U.-S.C.
2305(c)(2)(k)), and has determined that there is not reasonable cause to believe that the
respondents have violated Section 405(a) of STAA.
4. Complainant had alleged that he was terminated February
13, 1987, due to complaints he made about too little rest on his trips. Respondent stated that the
complainant was terminated because of repeated warnings about unsatisfactory performance.
Events leading to the termination are as follows.
(a) Complainant had received repeated warnings of unsatisfactory
performance, late arrivals, etc.
(b) The largest van in use was rated at less than 10,000 pounds gross
weight.
(c) Complainant had not made any safety complaints nor refused to drive,
before he was terminated.
(d) Complainant was insubordinate at his last meeting with management.
and he was terminated February 13, 1987.
5. In view of the foregoing, it is the determination of the Secretary
that respondent did not violate Section 405 of STAA (49 U.S.C. 2305).
