U.S. Department of Labor
Office of Administrative Law Judges
John W. McCormack Post Office and Courthouse
Room 409
Boston, Massachusetts 02109
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
RECOMMENDED DECISION AND
ORDER
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
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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.
FINDINGS OF FACT
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
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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
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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
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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
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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
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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
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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.
ADDITIONAL FINDINGS OF FACT AND CONCLUSIONS
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.
ORDERED
It is hereby my recommended decision and order that the
claim of Complainant be DENIED.