Ass't Sec'y & Nidy v. Benton Enterprises, 1990- STA-11 (Sec'y Nov. 19, 1991)

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Ass't Sec'y & Nidy v. Benton Enterprises, 1990- STA-11 (Sec'y Nov. 19, 1991)

U.S. DEPARTMENT OF LABOR

SECRETARY OF LABOR
WASHINGTON, D.C.

DATE: November 19, 1991
CASE NO. 90-STA-11

IN THE MATTER OF

ASSISTANT SECRETARY OF LABOR
FOR OCCUPATIONAL SAFETY AND HEALTH,
PROSECUTING PARTY,

and

GERALD P. NIDY,
COMPLAINANT,

BENTON ENTERPRISES,
RESPONDENT.¹

BEFORE: THE SECRETARY OF LABOR

DECISION AND ORDER

Before me for review is the Decision and Order (D. and O.) of the Administrative Law Judge (ALJ), issued July 19, 1991, in this case which arises under Section 405, the employee protection provision, of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1988). The ALJ found that the complaint of Complainant Nidy, a driver for Respondent, was covered by the STAA and that Respondent Benton Enterprises, a trash collection and disposal company, had violated the STAA by discharging Complainant for refusing to drive an unsafe vehicle. The ALJ thus ordered Respondent to pay back wages with interest and to pay Complainant's attorney fees.

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Upon review of the record evidence, I find, although on a different basis from the ALJ, that the complaint in this case falls within the scope of the STAA. I also find, in agreement with the ALJ, that Respondent violated the STAA when it discharged Complainant.

I .

The initial question is whether this case falls within the scope of the STAA. Section 405 of the STAA protects an "employee" from discrimination due to certain protected activity. Section 401(2) of the STAA defines an employee as a driver, inter alia, of a "commercial motor vehicle" who is employed by a "commercial motor carrier."² 49 U.S.C. app. § 2301(2). A "commercial motor vehicle" is defined in the STAA as a vehicle falling into one of three categories of vehicles used on the highways "in commerce" primarily to transport passengers or cargo.³ 49 U.S.C. app. § 2302(i). Furthermore, an "employer" under the STAA is defined as "any person engaged in a business affecting commerce who [(1)] owns or leases a commercial motor vehicle in connection with that business, or [(2)] assigns employees to operate it in commerce, . . . ." 49 U.S.C. app. § 2301(3). Thus coverage under the Act depends upon whether the vehicles being used are "in commerce" and whether the employer is a "commercial motor carrier" which is engaged in a business "affecting commerce." The ALJ found that Respondent was a commercial motor carrier, and this is not disputed by the parties. The ALJ's findings that Respondent is a commercial motor carrier ⁴ are supported by substantial evidence and I adopt them. 29 C.F.R. § 1978.109(c)(3).

The issue of contention is the reach of the statutory language "in commerce" and "affecting commerce." Respondent contended that there is no STAA coverage because Respondent was engaged in intrastate rather than interstate commerce and because its intrastate activities did not substantially impact interstate commerce. Post Hearing Brief of Respondent (Resp. Br.) at 2-4.⁵ The Assistant Secretary does not characterize Respondent's or Complainant's transportation activities as either intrastate or interstate but argues that, because the STAA does not define the term "commerce," the statute applies to all intrastate transportation as well as to interstate transportation. Brief of the Assistant Secretary before the Secretary of Labor (Ass't Sec. Br.) at 4-9. The ALJ concluded that Respondent was engaged in interstate commerce. The STAA has been held to apply to interstate transportation and to intrastate transportation that affects interstate commerce. See Taylor v. T.K. Trucking, Sec. Final Dec. and Order, Oct. 31, 1988, adopting Administrative Law Judge's decision of July 7, 1988. It, therefore, must be determined whether the transportation activities involved herein are interstate or affect interstate commerce; and, if not, whether the STAA applies to purely intrastate transportation.

[Page 3]

The facts relevant to this issue are as follows. Complainant was employed as a transfer driver for Respondent for a period of 16 days in January 1989. Transcript (T.) 10. Respondent, a trash and waste disposal company located in Toledo, Ohio, had municipal contracts with the Ohio cities of Maumee and Oregon and several commercial contracts with the Toledo public schools for collection and disposal of waste. T. 100, 106. Respondent picked up trash and waste only in two Ohio counties. T. 108. Normally, Respondent disposed of this waste by transporting it to landfills in Ohio. T. 54. Travel to the Port Clinton, Ohio, landfill was on State Route 2. T. 23.

Respondent also was involved in recycling scrap paper. T. 100, 107. It sold baled paper to paper companies in Ohio and to Monroe Paper in Michigan. Respondent had a "back purchase order" with Monroe Paper, T. 103, -- i.e., an arrangement with Monroe whereby once a month Monroe notified Respondent of the price Monroe would pay for baled paper and, if Respondent had baled paper to sell, Respondent would advise Monroe. Monroe would then send a contract carrier to Respondent's yard to pick up the paper. Respondent's drivers never drove the paper to Monroe. T. 101-103.

As a transfer driver, Complainant hauled semi-trailers loaded with compacted household and industrial waste from Respondent's yard in Toledo either to the Port Clinton landfill or to a Waste Management landfill in Toledo, Ohio. T. 11, 18. (Port Clinton was approximately 45 miles from Respondent's yard and Waste Management was 8-10 miles from the yard. T. 21.) When empty, the tractor-trailer Complainant drove weighed over 15,000 pounds; when loaded, its weight was 95,000-100,000 pounds. T. 18. Complainant also made local trips, T. 12, consisting of driving empty trailers to different sites within Toledo, exchanging them for trailers full of uncompacted trash and waste and driving the full trailers to Respondent's yard. T. 58. Complainant testified that he never drove to other states while employed by Respondent but that he was subject to driving out of state. T. 11.

Another of Respondent's drivers had occasion to drive out of state. Charles Shepherd, who had been employed by Respondent as a transfer driver during the period of Complainant's employment, testified that he had transported material to a recycling company in Taylor, Michigan. T. 55, 101. According to Robert Benton, chief executive officer and sole stockholder of Respondent, the transfer to Taylor took place during the period that Respondent's baler was broken and the city refused to let Respondent, which had already had some 31 fires, store any more trash. T. 99, 101. Respondent received no compensation for this delivery. T. 108. Benton testified to one other out of state trip made by mistake to Romulus, Michigan. T. 101, 103.

Benton testified that the U.S. Department of Transportation has inspected all of Respondent's vehicles. T. 105. Complainant testified that, on the way to the Port Clinton landfill, drivers followed a lead truck which watched out for DOT inspectors. T. 22-23.

[Page 4]

The ALJ concluded that Respondent was actually engaged in interstate transportation and that Complainant was subject to driving out of state. D. and O. at 6. Because I find these factual findings unsupported by substantial evidence in the record, I do not consider them to be conclusive. See 29 C.F.R. § 1978.109 (c) (3).

The record does not substantiate that Respondent's vehicles regularly or even occasionally made out of state trips. The testimony the ALJ relied on as "evidence of the interstate trips," D. and O. at 6 (emphasis added), establishes merely that driver Shephard made a trip to Taylor, Michigan, but nothing more. See T. 54-55. Nor does Benton's testimony indicate that more than one trip to Taylor was made during the period that Respondent's waste paper baler was not in operation. T. at 100-101. There was no other testimony about other trips to Taylor.⁶ If more than one trip actually were made, the record before me does not reflect it. I conclude that this evidence of an isolated trip does not prove that Respondent was engaged in interstate transportation. Evidence of minimal interstate commerce is not sufficient to establish activity in interstate commerce. See Mabee v. White Plains Publishing Co., 327 U.S. 178, 181 (1946) (sporadic or occasional shipments out of state would not determine that newspaper is engaged in production of goods for interstate commerce); Coast Van Lines v. Armstrong, 167 F.2d 705, 707 (9th Cir. 1948) (evidence of interstate trips during only one month insufficient to establish interstate commerce).⁷

Nevertheless, it is not necessary to cross state lines to be within the ambit of Congress' power to regulate interstate commerce. Its power extends not only to actual commerce among the states but to such intrastate activities as exert a substantial effect on interstate commerce. See Maryland v. Wirtz, 392 U.S. 183, 189-190 (1968); Wickard v. Filburn, 317 U.S. 111, 125 (1942); United States v. Wrightwood Dairy Co., 315 U.S. 110, 120 (1942); United States v. Darby, 312 U.S. 100, 119-120 (1941); United States v. Hill, 248 U.S. 420, 425 (1919).

The record contains evidence of Respondent's activities involving interstate commerce. The trash Respondent collected included scrap paper. Respondent baled this paper and on a regular basis sold some to Monroe Paper in Monroe, Michigan. Complainant testified that he drove city runs -- that is, picked up full trailers of trash and drove them to Respondent's yard. It was from such material that Respondent salvaged the scrap paper and cardboard which he sold to Monroe Paper. Respondent's intrastate collection of this paper was, therefore, a part of the movement of the baled paper across state lines. That Respondent's sales to Monroe Paper may not have been a major portion of Respondent's total activities does not alter the fact that Respondent's activities substantially affected interstate commerce. See Harding v. Kurco, 650 F.2d 228, 230 (10th Cir. 1981) ("[I]t is not necessary that [an employer's] interstate contacts be overwhelming.") Whether transportation between two points in the same state is deemed to be a part of an interstate movement is ascertained from all the facts and circumstances surrounding the transportation. See, generally, Walling v. Jacksonville Paper Co., 317 U.S. 564 (1943); Baltimore & O.S.W.R. Co. v. Settle, 260 U.S. 166 (1922).

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The pertinent fact here is that picking up scrap paper on city runs was a part of the movement of that material to Monroe Paper. Respondent did not process the paper; it did nothing more than bale the paper before selling it to Monroe. Cf. Goldberg v. Faber Industries, Inc., 291 F.2d at 234 (drivers picking up meat scraps from local sources for delivery to employer's rendering plant in same state were not engaged in interstate commerce because the processing of the scraps "[broke] the continuity of the transportation . . . . "). Because Respondent simply baled the scrap paper, here there is no break in the continuity of the interstate movement of the paper. Respondent's sales to Monroe thus constituted the sale of goods in interstate commerce.⁸

Accordingly, I find the transportation activities in this case sufficient to establish the "in commerce" and "affecting commerce" statutory requirements of the STAA. As such, Complainant is an employee protected by the STAA and Respondent is an employer subject to the STAA.⁹

II.

The ALJ concluded that Respondent violated STAA Section 2305(b)¹⁰ which prohibits discrimination against an employee who refuses to drive a commercial motor carrier when to do so would constitute a violation of Federal law, or because the employee has a reasonable apprehension of serious injury due to the unsafe condition of the vehicle. The ALJ found that Respondent discharged Complainant for refusing to drive a vehicle which Complainant had good reason to believe was overweight and unsafe. D. and O. at 7. Thus, the ALJ found that Complainant had violated the because clause of Section 2305(b).

The Assistant Secretary supports the ALJ's decision, taking the position that Respondent violated both the when and the because clauses of Section 2305(b). Ass't Sec. Br. at 10-16. Respondent denies that it discharged Complainant, arguing that Complainant "refused to work even though offered other tractors to drive." Resp. Br. at 4.

The facts relevant to Complainant's discharge are as follows. on the morning of February 1, 1989, just before he reached the Port Clinton landfill, Complainant received a citation from the State Highway Patrol because his vehicle was 20,600 pounds overweight in violation of Section 5577.04 of the Ohio Code, 55 Ohio Rev. Code Ann. § 5577.04 (1985). Government Exhibit (G.E.) 3. Complainant was permitted to proceed to the landfill where he unloaded the trailer. At the landfill, his supervisor told him to return to Respondent's yard and then go home for the day. Once back at the yard, Complainant was told by Benton that he could not leave because he had to take another load to Port Clinton. Complainant testified that he refused, telling Benton that he was not going to drive Respondent's unsafe and overweight vehicles anymore, and that Benton then "replied, 'Well, I guess you don't have a job then."' T. 27-29. Benton testified that, when Complainant said he wasn't going to drive the "junk equipment" anymore, Benton told him that,

[Page 6]

"since he is low seniority on the list, if he felt that way, when we went through his vehicle to repair any defects that we could find, that he would have to take a temporary layoff." T. 104-105.

To establish a violation of the because clause, Complainant must prove that Respondent took adverse action against him, that Complainant had a reasonable apprehension of serious injury either to himself or to the public, and that Complainant sought from his employer, and [was] unable to obtain, correction of the unsafe condition." 49 U.S.C. app. § 2305(b). As the ALJ stated, "[t]here is no dispute in this case that the driver complained about vehicle safety . . . ." D. and O. at 6. The testimony of both Complainant and Benton confirm that Complainant informed Respondent that he refused to drive because the Respondent's equipment was overweight. T. 28, 104-5.

Although the ALJ found that "[t]here is no dispute . . . that the employer fired the driver," D. and O. at 6, Respondent clearly disputed that it discharged Complainant. "Plaintiff claims he was fired, but it is the position of the respondent that he refused to work and that he refused to drive other trucks that were offered to him to drive." Resp. Br. at 2, Item D. See also, Resp. Br. at 4. The record, nevertheless, establishes that Respondent did discharge Complainant. According to Complainant, Benton said to him that "[w]ell, I guess you don't have a job then." T. 28. Benton's testimony that he told Complainant that he would be "laid off" -- albeit temporarily -- is not contradictory.¹¹ Accordingly, I find that Complainant established that he was discharged by Respondent.

The ALJ also found that Respondent "had good reason to believe that the truck he was assigned was overweight or unsafe." D. and O. at 6. The record supports the finding that Complainant had a reasonable apprehension that, if he made another trip to Port Clinton, his transfer trailer would be overweight.

The record establishes that Respondent's trailers were overloaded routinely. Complainant and Shephard both testified that, in loading the trailers, the automatic stop on the compactor, which fed the trash into the trailer, would be overridden in order to force more trash into the trailer. T. 19-20, 59-60. The compactor override would be used as many as three or four times per load. T. 60. Respondent had no scales at its yard, T. 58, and only made periodic checks on the weight of its vehicles at the adjacent yard. T. 109. Respondent's drivers were never told to have their loads weighed before leaving the yard. T. 24-25, 58. Indeed, on their way to the Port Clinton landfill, they usually travelled in a convoy headed by a pickup truck which acted as a scout and ordered the drivers to pull off the road when a highway patrol with portable scales or Department of Transportation vehicles were spotted. T. 22-24; 62-63. State Trooper Miller testified that, on State Routes 2 and 63 leading to the Port Clinton landfill, he had on numerous occasions cited Respondent's drivers for being overweight.¹² T. 81-88; G.E. # 1. In Trooper Miller's opinion, Respondent Benton received more citations than any other company using the landfill. T. 95. Benton did not deny that Respondent's vehicles were overweight; rather he admitted that "during certain times of the year, yes, loads were heavier than others due to rain and that type of thing." T. 109.

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The record also establishes that an overweight trailer is unsafe. Trooper Miller testified that overloads cause tires to blow out, make the vehicle harder to stop and affect the breaking distance. T. 89. Complainant testified that "conservatively" he could expect that the convoy of three trucks would have at least two blowouts on its way to the landfill because the trucks were fully loaded. T. 22. Complainant also testified that between the yard and Port Clinton, there were several traffic lights. "The usual practice was to try and time the lights so you didn't have to stop and start. It is an effort on the equipment and the driver to get the vehicle stopped at traffic lights, and once again moving after having to stop." T. 50. Thus, driving the overloaded vehicles could lead to traffic accidents.

On the basis of the above evidence, I find that Complainant had a reasonable belief that the vehicle he was assigned to drive to Port Clinton would be overloaded and, therefore, potentially injurious to himself and the public.

As already noted, a requisite to establishing Respondent's violation of the because clause is that Complainant have sought, and have failed to obtain from Respondent, correction of the unsafe condition. Perez v. Guthmiller Trucking Company, Inc., Case No. 87-STA-00013, Sec. Final Decision and Order, Dec. 7, 1988, slip op. at 4. Gohman v. Polar Express, Case No. 88-STA14, Sec. Final Dec. and Order, Nov. 14, 1988, slip op. at 2; Juarez v. Ready Trucking Co., Case No. 86-STA-7, Sec. Final Dec. and Order, July 7, 1988, slip op. at 3, n.4. The ALJ failed to make any finding to this effect. It is clear, however, from Benton's testimony that, after Complained voiced his objection to driving an overloaded vehicle, Benton took no steps to ensure that the load he intended Complainant to take was not overweight.

Accordingly, I find that Complainant was discharged because of his refusal to drive an unsafe vehicle.¹³ Respondent does not present any other reason for Complainant's discharge other than his refusal to drive. Resp. Br. at 2, Item D.¹⁴

III.

As a remedy for the violation, the ALJ recommended that Respondent "pay the Complainant backpay based on his yearly salary from the date of his discharge until April 10, 1989, plus 7 percent interest." D. and O. at 7. I do not agree that Complainant's back pay should be based on his annual salary. Complainant was paid weekly but the amount of pay varied according to the number and type of trips he took. T. 30. Complainant worked only 16 days for Respondent. T. 10. The parties stipulated to Complainant's weekly earnings during this short period. T. 33. Furthermore, Complainant was only out of work for a period of approximately 10 weeks. T. 34. It is, therefore, more appropriate that Complainant's lost earnings be calculated on a weekly basis.

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Subsequent to filing its brief before me, the Assistant Secretary "note[d] that an award of interest should be made pursuant to 26 U.S.C. § 6621 (1988)." Letter of Aug. 29, 1991, from Powasnik to Culbreth. Respondent has not objected. I agree with the Assistant Secretary that it is appropriate that an award of interest be made in accordance with 26 U.S.C. § 6621 (1988). See Polewsky v. B & L Lines, Inc., Case No. 90-STA- 0021, Sec. Final Dec. and order, May 29, 1991, slip op. at 5 and cases cited therein.

IV.

The ALJ also recommended that Respondent be ordered to pay the Complainant's attorney fees. D. and O. at 7.¹⁵ Prior to the hearing before the ALJ, Complainant was represented by private counsel, who attended the hearing but not as a participant. Complainant is entitled to be compensated for the work done by private counsel "for, or in connection with, the bringing of the complaint upon which the [Secretary's] order was issued." 49 U.S.C. app. § 2305(c)(2)(B). Thus, Complainant's counsel is entitled to fees for work performed on Complainant's case prior to the hearing.

Order

Accordingly, it is ORDERED that:

1. Respondent pay Complainant back pay with interest from the date of his discharge on February 1, 1989, until April 10, 1989, less interim earnings, if any.¹⁶

Back pay is to be calculated at the rate of $350.00 per week.¹⁷ Interest shall be calculated in accordance with 26 U.S.C. § 6621 (1988), and continue at such rate(s) as modified from time to time by the Secretary of the Treasury until compliance with this order.

2. Respondent shall expunge Complainant's personnel records of all adverse references to Complainants' discharge.

3. Respondent shall pay Complainant's attorney's fees. Counsel John A. Coble is permitted a period of 30 days in which to submit to the Secretary any petition for fees and expenses incurred in connection with the bringing of the complaint in this case.¹⁸ Respondent thereafter may respond to any petition within 20 days of its receipt. All filings shall be submitted to the Office of Administrative Appeals, Room S-4309, U.S. Department of Labor, 200 Constitution Avenue, N.W. 20210.

SO ORDERED.

Lynn Martin
Secretary of Labor

Washington, D.C.

[ENDNOTES]

¹The caption is modified in conformance with 29 C.F.R. § 1987.108(a) (1991).

²"[E]mployee" means

(A) a driver of a commercial motor vehicle . . . who is employed by a commercial motor carrier and who in the course of his employment directly affects commercial motor vehicle safety . . . .

49 U.S.C. app. § 2301(2).

³"[C]ommercial motor vehicle" means any self-propelled or towed vehicle used on the highways in commerce principally to transport passengers or cargo--

(A) if such vehicle has a gross vehicle weight rating of ten thousand or more pounds . . . .

49 U.S.C. app. § 2301(l). Mr. Nidy's vehicle met the 10,000 or more pound standard. T. 20.

⁴The STAA does not define "commercial motor carrier." The regulations implementing the STAA define a "commercial motor carrier" in terms of the definitions of "motor carrier" and "motor private carrier" found at 49 U.S.C. § 10102(13) and (16) (Supp. 1987). See 29 C.F.R. § 1978.101(e). A "'motor carrier' means a motor common carrier and a motor contract carrier." 49 U.S.C. § 10102(13). These terms are further defined in 49 U.S.C. § 10102(14) and (15).

The ALJ found that it did not matter whether Respondent was a motor common carrier or a motor contract carrier since its primary business was transportation and it is a "for- hire carrier." D. and O. at 5. This position was taken before the ALJ by the Assistant Secretary. Assistant Secretary of Labor for Occupational Safety and Health, Prosecuting Party's Post-Hearing Brief at 9. Before me, the Assistant Secretary takes the position that Respondent is a "motor contract carrier". Sec. Br. at 9. I agree that the record establishes that Respondent was a "motor contract carrier" as defined in 49 U.S.C. § 10102(15).

⁵Although permitted to do so, Respondent filed no brief before me. See 29 C.F.R. § 1978.109(c)(2).

⁶The only other evidence that an employee of Respondent drove out of state was Benton's testimony regarding one trip, apparently made by mistake to Romulus, Michigan. T. 101, 103.

⁷Nor does Complainant's bare statement, without further amplification, that he was subject to driving out of state fulfill his burden of establishing that he was subject to out-of-state driving. See Austin Road Co. v. Occupational Safety and Health Review Commission, 683 F.2d 905, 907 (5th Cir. 1982) (testimony that it was "believed" that boom used by employer was made out of state not sufficient to carry Secretary of Labor's burden of proof that employer's business affected commerce). The ALJ's reliance on Morris v. McComb, 332 U.S. 422 (1947) and Starrett v. Bruce, 391 F.2d 320 (10th Cir. 1968) to establish Complainant's involvement in interstate commerce is misplaced. There was evidence in those cases that the employer either conducted business in interstate commerce or held itself out to be willing to do so and assigned or would have assigned drivers to drive out of state in connection with that business. Such evidence has not been presented here. See Goldberg v. Faber Industries, Inc., 291 F.2d 232, 234 (7th Cir. 1961) (drivers never used in interstate commerce and not expected to be, found not to be engaged in operating motor vehicles in commerce).

⁸Having reached this conclusion, I do not decide the issue of whether the STAA applies to purely intrastate transportation.

⁹The Assistant Secretary asserts that the definition of "employer" has no applicability to coverage. Ass't Sec. Br. at 8, n.5, as clarified by letter of August 29, 1991, from Powasnik to Culbreth. The complaint here falls within Section 2305(b), which requires the employee refusing to drive because of the unsafe condition of the vehicle to seek from the "employer" correction of the unsafe condition. An "employer" is a "person," as defined in 49 U.S.C. app. § 2301(4), for purposes of both subsections (a) and (b) of Section 2305. The legislative history confirms that Section 2305 was aimed at employers. See 128 Cong. Rec. S14028 (daily ed. December 7, 1982 (Section 2305 "provides one more incentive to employers to comply with rules, regulations standards and orders issued under this Title.") Thus the definition of "employer" is applicable.

¹⁰Although the ALJ does not specifically cite to subparagraph (b) of Section 2305, he discusses that provision. See D. and O. at 6.

¹¹I also note that G.E. #4, the notice of the determination of Complainant's entitlement to unemployment benefits, does not indicate that Respondent contested Complainant's entitlement to such benefits on the ground that Respondent did not discharge Complainant.

¹²The State Highway Patrol had portable scales which they used to weigh vehicles on the road, and they suspected a vehicle was overweight when they saw the tires bulge. T. 80, 87.

¹³Since I have found that Respondent violated the because clause of Section 2305(b), I do not need to determine whether Respondent violated the when clause of that section.

¹⁴Contrary to the assertion in Respondent's brief, the record contains no testimony that Complainant was offered another vehicle to drive.

¹⁵Complainant does not seek reinstatement.

¹⁶Any unemployment compensation Complainant received for the back pay period shall not be deducted from the back pay. See Hadley v. Southeast Cooperative Services Company, Case No. 86-STA-24, Sec. Decision, June 28, 1991, Slip op. at 5 and cases cited therein.

¹⁷This appears to be the appropriate rate. The ALJ found that Complainant's weekly salary was $350, D. and O. at 7, and neither party contests this finding.

¹⁸Because counsel's work was not performed before the ALJ, I do not remand this case for determination of attorney fees.