Department of Labor: 04 097

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U.S. Department of Labor Administrative Review Board 200 Constitution Avenue, N.W. Washington, D.C. 20210 In the Matter of: GREG KRAHN, COMPLAINANT, v. UNITED PARCEL SERVICE OF AMERICA, INC., RESPONDENT. ARB CASE NO. 04-097 ALJ CASE NO. 2003-STA-24 DATE: May 9, 2006 BEFORE: Appearances: THE ADMINISTRATIVE REVIEW BOARD For the Complainant: Paul O. Taylor, Esq., Truckers Justice Center, Burnsville, Minnesota For the Respondent: Brauch A. Fellner, Esq., Jason C. Schwartz, Esq., Joshua Ian Rose
  U.S. Department of Labor Administrative Review Board200 Constitution Avenue, N.W.Washington, D.C. 20210 USDOL/OALJR EPORTER P AGE 1 In the Matter of:GREG KRAHN,ARB CASE NO. 04-097COMPLAINANT,ALJ CASE NO. 2003-STA-24v.DATE: May 9, 2006UNITED PARCEL SERVICEOF AMERICA, INC.,RESPONDENT.BEFORE:THE ADMINISTRATIVE REVIEW BOARDAppearances:  For the Complainant :Paul O. Taylor, Esq., Truckers Justice Center, Burnsville, Minnesota For the Respondent :Brauch A. Fellner, Esq., Jason C. Schwartz, Esq., Joshua Ian Rosenstein,Esq., Gibson, Dunn & Crutcher, LLP, Washington, D.C. FINAL DECISION AND ORDER Greg Krahn filed a complaint with the United States Department of Laboralleging that his employer, United Parcel Service (UPS), violated the employeeprotection provisions of the Surface Transportation Assistance Act (STAA or Act) 1 whenit disciplined him and ultimately relieved him of his duties.After a hearing, aDepartment of Labor Administrative Law Judge (ALJ) recommended dismissing thecomplaint becauseKrahn did not establish he engaged in protected activity under the Act.We affirm the ALJ ’ s April 30, 2004 Recommended Decision andOrder (R.D. & O.) anddeny the complaint. 1 49 U.S.C.A. § 31105 (West 1997).  USDOL/OALJR EPORTER P AGE 2 B ACKGROUND Krahn worked as a tractor-trailer operator and after almost 24 years of service,UPSdischargedhim in August and September 2000. The stated reason for the latesttermination on September 8, 2000, was Krahn ’ s “ failure to follow proper methods andsupervisory instructions. ” 2 For 12 years prior to the termination of his employment, Krahn worked as a UPSfeeder driver, operating out of Phoenix, Arizona.His last regular assignment was analmost 400 mile roundtriproute between Phoenix and Winslow, Arizona.In the first legof the trip, Krahn traveled north out of Phoenix on Interstate 17 (I-17) to Flagstaff,Arizona. This portion of the route was approximately 145 miles, traveling through themountains rising to an elevation of approximately 7,000 feet above sea level. FromFlagstaff Krahn traveledeast on Interstate 40 (I-40) for approximately 55 miles. Uponarriving in Winslow he routinely exchanged his set of double trailers with another UPSdriver based out of Albuquerque, New Mexico. Krahn would then make a return trip toPhoenix with a different set of double trailers.UPS determined the appropriate drivingtime for the Phoenix-Winslow-Phoenix route was 7.5 hours. 3 Krahnregularly exceededthe allotted driving time for this route. 4 Beginning August 7, 2000, Krahn participated in a series of on-the-job service(OJS) rides with Craig Rollie, a UPS manager. 5 Rollie rode with Krahn on six occasionsbetween August 7 and September 5, 2000. During these rides, Rollie identified certaindeficiencies that included tailgating, wandering from the lane, improper shifting,traveling at slower speeds and excessive braking. 6 On August 14, 2000, afteraccompanying Krahnon his route, Rollie recommended that he receive a letter of  2 Joint Exhibit (JX) -20. 3 Hearing Transcript (TR) at 882. 4 TR at 362-64; Respondent ’ s Exhibit (RX) -20. At certain points along theComplainant ’ s route the posted speed limit was 75 miles per hour. TR at 136, 658-59.However, UPS restricted its drivers to a maximum speed of 65 miles per hour or the postedspeed limit if lower than 65. JX-32, 33. Also, portions of Krahn ’ s route along southbound I-17 included six percent downgrades. TR at 135, 137, 147, 867. 5 The decision to conduct OJS rides stemmed from a prior grievance Krahn filedregarding a reassignment of duties in May 2000. TR at 840-841. 6 After the initial OJS ride on August 7, 2000, Krahn was on sick leave through August13, 2000. TR at 847.  USDOL/OALJR EPORTER P AGE 3 warning.According to Rollie, Krahn exhibited little improvement and was generallyuncooperative. 7 The OJS rides continued and on August 16, 2000, Krahnshowed “ considerableimprovement ” in completing his route just slightly over the allotted driving time of 7.5hours. 8 Rollie did not accompany Krahn on August 17, 2000. However, another UPSmanager, Jerry Dalzell, observed Krahn driving southbound on I-17 at a significantlyreduced speed with his four-way flashing lights on.Dalzell reported this information toRollie, who decided to resume OJS rides the following morning. Less than midwaythrough their August 18, 2000 OJS ride, Rollie verbally terminatedKrahn ’ s employmentfor “ failure to follow supervisor ’ s instructionsabout maintaining a reasonable speed. ” 9 The Complainant received written notification of this termination on August 22, 2000.UPS advised him he was dismissed as a result of his August 18, 2000 failure to “ followproper methods and supervisory instructions. ” 10 Because of contractual obligations, UPS could not immediately terminateKrahn ’ semployment. Therefore, he continued to drive his regular route pending a hearing on hisAugust 2000 dismissal. 11 During this working termination, UPS engaged the services of an outside agent to observe Krahn ’ s driving habits.He was under video surveillance onsix days between August 25and September 1, 2000. Based on his performance onAugust 30, 31 and September 1, 2000, UPS again firedKrahnon September 8, 2000. 12 On January 20, 2001, Krahn filed a timely complainant with the Department of Labor alleging that UPS disciplined him for engaging in protected activity under the Act.According to Krahn, he refused to follow Rollie ’ s instructions because had he done so hewould have violated various Department of Transportation (DOT) regulations pertainingto speed, equipment inspection and usage. He also alleged he refused to operate his 7 TR at 853-55, 860, 863-64, 866. The letter of warning, signed by Robert “ Bart ”  Bartholomew, UPS Feeder Division Manager, indicates Krahn did not follow proper methodswhen he failed to maintain the posted speed limit. Bartholomew also noted Krahn failed tofollow supervisor ’ s instructions when given a direct work order numerous times to maintainthe posted speed limit. JX-9, 19. 8 TR at 882. 9 TR at 894-95. 10 JX-27. 11 Krahn filed a grievance on September 5, 2000, challenging his August 18, 2000,discharge. JX-29. 12 This latter discharge became final when Krahn failed to timely file a grievance withthe appropriate authorities. JX-30.  USDOL/OALJR EPORTER P AGE 4 feeder set at increased speedsbecause of a reasonable apprehension of serious personalinjury or injury to the public. Upon investigation, the Secretary of Labor foundinsufficient evidence to support Krahn ’ s allegations. He subsequently requested ahearing with the Office of Administrative Law Judges, which culminated in the April 30,2004 recommended decision currently before the Administrative Review Board (ARB orBoard). 13 The issue to be resolved is whether Krahn engaged in protected activity underthe Act. J URISDICTION AND S TANDARD OF R EVIEW The Secretary of Labor has delegated her authority to decide this matter to theBoard. 14 When reviewing STAA cases, the Board is bound by the ALJ ’ s factual findingsif those findings are supported by substantial evidence on the record considered as awhole. 15 Substantial evidence is defined as “ such relevant evidence as a reasonable mindmight accept as adequate to support a conclusion. ” 16 In reviewing the ALJ ’ s legalconclusions, the Board, as the Secretary ’ s designee, acts with “ all the powers [theSecretary] would have in making the initial decision … . ” 17 Therefore, the Board reviewsthe ALJ ’ s legal conclusions de novo. 18 13 When the case was pending before the ALJ, the American Trucking Associations(ATA) requested leave to file an amicus curiae brief under 29 C.F.R. § 18.12. On July 12,2004, the Board received an additional copy of ATA ’ s amicus brief. Because ATA ’ s March9, 2004 amicus curiae brief was already part of the record forwarded to the ARB and theparties did not specifically object to its resubmission on July 12, 2004, the Board willconsider ATA ’ s brief along with all other properly submitted information of record. 14 49 U.S.C.A. § 31105(b)(2)(C); see Secretary ’ s Order 1-2002, 67 Fed. Reg. 64,272(Oct. 17, 2002); 29 C.F.R. § 1978.109(c)(2005). 15 29 C.F.R. § 1978.109(c)(3);  BSP Trans, Inc. v. United States Dep ’  t of Labor, 160F.3d 38, 46 (1st Cir. 1998); Castle Coal & Oil Co., Inc. v. Reich, 55 F.3d 41, 44 (2d Cir.1995). 16 Clean Harbors Envtl. Servs., Inc. v. Herman, 146 F.3d 12, 21 (1st Cir. 1998) (quoting  Richardson v. Perales , 402 U.S. 389, 401 (1971)). 17 5 U.S.C.A. § 557(b) (West 1996). 18  Id. ; see Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1066 (5th Cir. 1991).
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