U.S. Department of Labor
Office of Administrative Law Judges
1111 20th Street, N.W.
Washington, D.C. 20036
Case No. 86-STA-16
In the Matter of
KEITH STONE
Complainant
v.
NU-CAR CARRIER
Respondent
Russell H. Gardner, Esquire
For the Respondent
James E. Culp, Esquire
For the Department of Labor
Before: ANASTASIA T. DUNAU
Administrative Law Judge
RECOMMENDED DECISION AND
ORDER
This matter arises under the Surface Transportation
Assistance Act of 1982 (STAA) 49 U.S.C. 2301 et seq. Complainant,
Keith Stone, charged that Respondent, Nu-Car Carriers have
violated the "Whistleblower" provisions § 405 of the STAA by
discharging him on October 1, 1985 when he refused to drive a load
[Page 2]
on the ground that he was ill and under the influence of a
prescribed pain killing drug. Employer denies that Claimant was ill
and claims he was discharged for cause. On April 9, 1986 after
investigation by Linda Anku, Regional Administrator for Region
III of the Occupational Safety and Health Administration, the
Secretary of Labor found Complainant's complaint well founded and
issued a Preliminary Order ordering Claimant's reinstatement with
back pay and making provisions to make him whole for his
discharge.
Respondent filed timely objections to these findings and
preliminary order and requested a hearing as provided by § 405 of
the STAA. Such a hearing was held on July I and 2, 1986 in
Washington, D.C. At the beginning of that hearing counsel for
the Secretary informed the court that he was dropping all
complaints that Respondent's discharge of Complainant had
violated § 405(a) of the STAA and was proceeding solely on the
basis of an § 405(b) violation. The hearing then proceeded. All
parties were given full opportunity to be heard and to submit
evidence. Thereafter the Secretary and Respondent submitted
briefs and reply briefs. Upon consideration of all the evidence
before me and the briefs of the parties, I make the following:
Findings of Fact and Conclusions of Law
I. FACTS
Respondent's business is to deliver automobiles to dealerships
in Maryland, Virginia and the District of Columbia and
other areas. For this purpose it uses tractors pulling a trailer
capable of carrying 7-9 automobiles. As a truckaway driver
Complainant is responsible for inspecting the tractor trailer,
performing the necessary paper work, loading the trailer and
driving the loaded trailer to the dealership, unloading it and
returning to Respondent's place of business. Respondent's
facility involved herein is located in Jessup, Maryland.
Depending on the length of the first trip of the day a driver may
be assigned one or two trips for the day.1
the date of this order is 5.79% from the date such
wages would have been paid to Complainant from October
1, 1985 to the date such payments are actually made.
4. Within 20 days of the date of this Order post for 30
days a copy of this Order in a prominent position on a
bulletin board where notices to Nu-Car employees at the
Respondent's Jessup, Maryland, facilities are customarily
posted.
5. Expunge from Complainant's personnel record all
references to his October 1, 1985 discharge.
2Complainant testified that he had
to walk to the lots to get
the cars because the shuttle bus operated for that purpose was
not available when he needed it. The Employer denies the
unavailability of the shuttle bus but produced no evidence to
show that Complainant actually rode the bus. As I consider this
conflict of no importance to the resolution of the issues herein
I shall not resolve it. I conclude in view of the uncontroverted
evidence that Complainant walked to fetch the cars but did not
walk long distances.
3The Respondent denies the entire
leaking coupler incident
stating that no repair could have been made without a shop card
and that all mechanics were permitted to do without a shop card
was to add fluids. Again it is not crucial to resolving the
issue herein that this conflict be resolved. However, I do
believe the Complainant's version of the incident, primarily
because the running drivers log which Complainant kept as
required by DOT regulations (Gov. Ex. 9) and which Complainant
turned in at 12:30 p.m. on the day of his discharge shows that at
9:15 a.m. Complainant had a broken hydraulic line repaired. At
the time of the making of the entry Complainant had no way of
knowing he would be discharged that day and therefore needed to
make a record. This would not be the first nor the last time of
an instance that low level employees are disregarding upper
echelon orders to get a job done rapidly. Complainant never
denied that this repair had been supposedly performed the night
before, he just insisted that it had not been done right. Such a
scenario is unfortunately all too familiar to those who have cars
repaired.
4It is not clear whether the
discharge was upheld because both
parties agreed that it was justified or because the parties were
deadlocked. In any event it was not pursued to the Board of
Arbitration provided by Article 41 of the contract.
55/ There is of course the
possibility of eventual conflict between
the Departments in those areas where the standards set by
DOT are not well enough defined or self-evident and DOL must act
before DOT has clarified the matter. It must be assumed that
Congress was aware of this potential for confusion and chose the
current statutory scheme as a lesser evil than the bifurcated
proceeding which would be necessary if a violation of 29 C.F.R.
392.3 had to be established at DOT followed by a trial at DOT, as
to whether there was a connection between this violation and the
action taken against the complaining employee.
6The cases cited by Respondent
do
not require deference here.
They merely establish that the Secretary, if he wishes, may defer
to a union's assessment of whether the employer has complied with
contractually mandated procedures. Compliance with contractual
procedures are not at issue here.
7Section 4 of the Master
Agreement between the Teamsters and
the Eastern Conference Area Employers provides for five days sick
leave payable in cash if unused at the end of the contract year.
According to the contract no doctor's certificate is required to
substantiate sick leave.
8Complainant testified that he did
not expect delay pay,
Respondent's witnesses Morrison and Schellenschlager disagreed on
whether the failure to discover the cracked deck posts was attributable
to Complainant or to the driver who regularly drove the
spare.
9The record is devoid of any
evidence of Complainant's income
prior to his discharge or of any figures on the basis of which
such income is computed. Respondent also raised the issue of
whether Complainant had exerted himself sufficiently in the
search of new employment. The parties are urged to come to an
amicable settlement of the amount of the back wages due under this
order. If they are unable to do so, they shall request another
hearing limited solely to the question of the amount of back pay
due. However, the fact that the amount remains unsettled shall
not excuse Respondent from complying with the other parts of this
Order forthwith, particularly from promptly reinstating Complainant
to his former position.