Department of Labor: 03 071

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U.S. Department of Labor Administrative Review Board 200 Constitution Avenue, NW Washington, DC 20210 In the Matter of: DAVID O. ROBERTS, ARB CASE NOS. 03-071 03-095 ALJ CASE NO. 02-STA-35 DATE: August 6, 2004 COMPLAINANT, v. MARSHALL DURBIN COMPANY, RESPONDENT. BEFORE: Appearances: THE ADMINISTRATIVE REVIEW BOARD For the Complainant: David O. Roberts, pro se, Moody, Alabama For the Respondent: Elmer E. White, III, Esq., and F. Daniel Wood, Jr., Esq., The Kullman Firm, Birmingham, Alabam
  U.S. Department of Labor Administrative Review Board200 Constitution Avenue, NWWashington, DC 20210 USDOL/OALJ   R EPORTER P AGE 1 In the Matter of:DAVID O. ROBERTS, ARB CASE NOS. 03-07103-095COMPLAINANT, ALJ CASE NO. 02-STA-35v. DATE: August 6, 2004MARSHALL DURBIN COMPANY,RESPONDENT.BEFORE: THE ADMINISTRATIVE REVIEW BOARD Appearances:    For the Complainant:  David O. Roberts  , pro se, Moody, Alabama    For the Respondent: Elmer E. White, III, Esq., and F. Daniel Wood, Jr., Esq., The Kullman Firm, Birmingham, Alabama   FINAL DECISION AND ORDER David O. Roberts filed a complaint under the employee protection provisions of the Surface Transportation Assistance Act of 1982 (STAA), as amended and recodified,49 U.S.C.A. § 31105 (West 1997), alleging that his employer, Marshall Durbin Company(M-D), terminated his employment because he refused to drive two trucks in violation of DOT requirements. On March 6, 2003, a Department of Labor Administrative LawJudge (ALJ) issued a Recommended Decision and Order (R. D. & O.) finding that M-Dhad discriminated against Roberts because he engaged in conduct protected by theSTAA, and ordered reinstatement, backpay, and compensatory damages. On April 30,2003, the ALJ issued a Recommended Supplemental Decision and Order (R. S. D. & O.)awarding attorney’s fees. The R. D. & O. and R. S. D. & O. are now before theAdministrative Review Board (ARB) pursuant to 49 U.S.C.A. § 31105(b)(2)(C) and 29C.F.R. § 1978.109(c)(1)(2003).   USDOL/OALJ   R EPORTER P AGE 2 BACKGROUND Roberts went to work in the trucking industry in 1978 as a mechanic on tractor-trailers. TR at 21-22. He eventually earned certification as a driver and started workingfor M-D in 1997. TR at 22-23. He became a driver trainer and then took over a route inlate 2000, compiling a clean driving record.  Id. at 24-27.At 4:00 a.m. on Monday, September 17, 2001, Roberts checked out his assignedtractor, Truck No. 1, but found a mileage inaccuracy on the post-trip inspection report. 1   According to Roberts, this led him to believe that the previous driver had not physicallyinspected the truck before completing the report. TR at 27-29. Roberts informed LilyJeffcoat, M-D’s training manager, of his concern. Jeffcoat called the operations manager,James Jamison, and then inspected Roberts’s truck. She found a leak in the air brakesand marked the truck out of service.  Id. at 30-32, 109-10; CX 1-2.Roberts also marked the truck out of service on his pre-trip inspection report andcalled Penske’s SOS Road Service, which had contracted to repair M-D’s trucks. TR at32, 11-12; CX 3. Penske’s repairman, Roy Morrison, came to M-D’s depot, but couldnot find the leak. He certified the truck as road-worthy. TR at 141-45. However, Robertsand Jeffcoat tested the brakes after Morrison’s visit, again found the leak, and Jeffcoatput the truck out of service.  Id. at 33-34; CX 15 at 341. Later that day, Penske replacedsome brake couplings on the truck. TR at 146-47, 151-52, 168.Meanwhile, Jamison arrived at work and told Roberts to take another, oldertractor, and make his deliveries. TR at 35. Roberts checked out Truck No. 2, butinformed Jamison that its post-trip report was missing and the windshield wipers lookeddefective.  Id. at 38. Jeffcoat found the post-trip report, dated September 5, 2001, underthe driver’s seat, but Roberts pointed out a nine-mile discrepancy between the “finish”mileage and the odometer reading. CX 5, RX 3; TR at 38. Roberts also was givenanother post-trip report, signed by Jamison and dated September 10, 2001, which coveredthe missing nine miles. 2 Jamison instructed Roberts to do the pre-trip inspection. TR at 1 Post-trip inspection reports, or driver vehicle inspection reports (DVIRs), are requiredunder the Federal Motor Carrier Safety Regulations (FMCSRs), 49 C.F.R. § 396.11; CX 4. 2   The circumstances under which the second post-trip report was created and given toRoberts are unclear. Roberts testified that Jamison signed the report in front of him and gaveit to him. TR at 39. Jamison testified that the report bore his signature but he did not recallcompleting it.  Id. at 192-95. Jeffcoat testified that she found both reports in the truck and thatshe had earlier written in the date and other identifying information on the second report.She further testified that she did not complete it because the truck’s taillights were defectiveand the truck therefore was unsafe to drive, and that Jamison could not have lawfully driventhe truck nine miles because he didn’t have the required license.  Id. at 125-28, 132-35.   USDOL/OALJ   R EPORTER P AGE 3 39. Roberts obeyed, moved the truck across the parking lot, and tested the wipers.  Id. at40. He then reported to Jamison that they weren’t working properly and suggested thatJamison call Penske to come and repair them.  Id. at 40-41, 168-70.Jamison directed Roberts to take the truck to Penske, nine miles away, and havethe wipers replaced.  Id. at 41-44, 169; CX 15 at 345. 3 Roberts refused and took thesecond truck out of service at which point Jamison told him to go home. TR at 41-45,169-70. Later, another driver took the second truck to Penske for repair of the wipers, theemergency flashers, a brake light, and the fifth wheel.  Id. at 42-44, CX 8.That same day, Roberts telephoned state and federal motor vehicle safety agenciesto complain about M-D’s practices and seek an investigation. TR at 46-49, Respondent’sPost-Hearing Memorandum of Law at 7. The next day, Jamison called Roberts and askedhim to come in for a meeting to discuss the previous day’s events. TR at 51. Robertswent to the meeting at M-D with a tape recorder.  Id. at 52-53. Attending were BarryHildegardner from M-D’s human resources department, Roy Montgomery, chief operations manager, driver Marcus Williams, Jamison, and Roberts.  Id. at 52; CX 15.Roberts insisted on recording the meeting and, at its outset, told the managersthat he had contacted the Department of Transportation (DOT). CX 15 at 327. Jamisonstated that M-D’s consultants (Federal Motor Carrier Consultants, Inc.) had told him thatif a post-trip was missing or inaccurate, a pre-trip would take care of any problembecause that’s what the pre-trip was for. CX 15 at 338-40; TR at 179-80. Robertsresponded: “That’s not what is in the regulations.” He explained that the driver has toreview the post-trip and also be satisfied that the truck is safe to drive. CX 15 at 339; TRat 76-82. After a protracted exchange on whether Roberts would comply with M-D’spolicy regarding post-trip inspection reports, Hildegardner fired Roberts. TR at 55; CX15 at 346-60. ALJ ’S DECISION Roberts sought an ALJ hearing after the Department of Labor’s (DOL)Occupational Safety and Health Administration (OSHA) dismissed his complaint for lack of merit. ALJX 1-2. In his R. D. & O., the ALJ summarized the testimony of Roberts,Jeffcoat, Morrison, Jamison, and Jimmy Ramia, M-D’s office manager. R. D. & O. at 3-21. 3 Testimony differs as to whether Jamison initially directed Roberts to drive his regularroute with the defective wipers; however, it is uncontested that Jamison told Roberts to takethe truck to Penske to have the defective wipers repaired, and that Roberts refused to do so.   USDOL/OALJ   R EPORTER P AGE 4 Credibility of the Witnesses  Based on both demeanor and plausibility, the ALJ found Roberts’s testimony tobe impressive, forthright, sincere, and consistent. R. D. & O. at 22. He found that, bycontrast, Jeffcoat’s “demeanor belied her testimony in crucial areas,” such as her failureto recall the September 17, 2001, conversation between Roberts and Jamison or hertelephone call to Roberts the next day, warning him about the meeting and suggesting hebring a tape recorder.  Id. He also found that Jamison was not sincere, and his statementsabout the post-trip inspection report he signed on September 10, 2001, were“incredulous” (sic), which “tempered” the ALJ’s view of his other testimony.  Id. TheALJ found that Ramia’s testimony was a “catalogue of non-recollection” (as to whetherRoberts informed him that he had made complaints to federal and state safety agenciesprior to the September 18, 2001, meeting, TR at 153-59) and was therefore unpersuasive. 4   Protected Activity Complaints The ALJ concluded that Roberts made both internal and external complaints thatM-D was not enforcing its own rules and those of DOT requiring drivers to completepost-trip inspection reports. R. D. & O. at 26-27. Noting that only internal concerns toJamison were alleged in Roberts’s initial complaint, the ALJ found that Roberts allegedexternal complaints at the hearing as additional protected activity.  Id.    Refusal to Drive Truck No. 1 The ALJ found that Roberts correctly refused to drive Truck No. 1, initiallybecause of an inaccurate post-trip inspection report which, he determined, violated DOTregulations. 49 C.F.R. §§ 396.11 and 396.13. The ALJ also found that Robertsconstructively refused to drive Truck No. 1 when he put it out of service because of defective air brakes, pursuant to 49 C.F.R. § 392.7. The ALJ concluded that Robertstherefore engaged in protected activity under 49 U.S.C.A. § 31105(a)(1)(B)(i), 5 R. D. & 4   Also unpersuasive was M-D’s argument that Hildegardner, the manager who firedRoberts, was unaware of his protected activities and thus could not have discriminatedagainst him. The ALJ found that Roberts announced his contact with DOT at the start of theSeptember 18, 2001, meeting and that M-D’s failure to call Hildegardner as a witness“diminished” the strength of its alleged legitimate business reasons for firing Roberts. R. D.& O. at 22. 5   This section prohibits discharge, discipline, or discrimination against an employeeregarding pay, terms or privileges of employment because the employee refuses to operate avehicle in violation of a federal commercial motor vehicle safety requirement.
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