DOL Home > OALJ > Whistleblower > Bettner v. Daymark, Inc., 2000-STA-41 (ALJ July 31, 2001) |
Bettner v. Daymark, Inc., 2000-STA-41 (ALJ July 31, 2001)
U.S. Department of Labor | Office of Administrative Law Judges 525 Vine Street, Suite 900 Cincinnati, OH 45202 (513) 684-3252 | ![]() |
Issue date: 31Jul2001
Case No: 2000-STA-41
In the Matter of
WILLIAM J. BETTNER
Complainant,
v.
DAYMARK, INC.,
Respondent.
APPEARANCES:
Paul O. Taylor, Esquire
4260 Heine Strasse
Eagan, MN 55122
For the Complainant
Donald J. Vogel, Esquire
Sarah L. Thomas, Esquire
Michael, Best & Freidrich
77 West Wacker Drive
Chicago, Illinois 60601-5828
For the Respondent
BEFORE: THOMAS F. PHALEN, JR.
Administrative Law Judge
This proceeding arises under the employee protection provision of the Surface Transportation Assistance Act of 1982, 49 U.S.C. §§ 31105 (the Act), and the regulations promulgated thereunder, 29 C.F.R. Part 1978. The hearing was held before the undersigned on October 11 and 12, 2001, in Chicago, Illinois.
Complainant, William J. Bettner, (Mr. Bettner or Complainant, herein) filed a timely complaint with the Secretary of Labor (Secretary, herein,) on February 10, 1999, alleging that Daymark, Inc. (Daymark or Respondent, herein,) discriminated against him in violation of the whistleblower provisions of the Act. The Secretary, acting through her duly authorized agents in the Occupational Safety and Health Administration, (OSHA, herein) investigated the complaint and, on May 26, 2000, determined that there was no reasonable cause to believe the Respondent had violated the whistleblower provisions. (CX l9).1
Mr. Bettner contested the Secretary's decision under cover of a letter dated May 30, 1999, and appealed her determination. (CX 2). Pursuant to appropriate notices (ALJXs 1 & 2), I conducted a formal hearing in Chicago, Illinois on October 11 and 12, 2000, at which time the parties were given the opportunity to present both testimony and documentary evidence. The record remained open until January 8, 2001, when the simultaneous briefs of the parties were filed.
The findings of fact and conclusions of law which follow are based upon the testimony and documentary evidence presented and arguments of counsel. The following exhibits were received into evidence at the hearing: ALJX 1- 2; JX 1, & 3 - 22; CX 1- 20; RX 2 - 5, & 7-11. JX 12 and RX 2 were withdrawn, and RX 6 was rejected. At the end of the hearing, the deposition of Jim Lape was marked as Respondent's Exhibit 7, and admitted into evidence.
In summary, I recommend that the Administrative Review Board find that there is a health care insurance and medical benefit payment issue resulting from the prior settlement agreement, in the failure of Daymark to timely pay Mr. Bettner for insurance benefits and medical care of Mrs. Bettner after Mr. Mr. Bettner's reinstatement with "full benefits," and to immediately cover such conditions with health benefits. I also find that the violation is technical, or de minimus since the insurance and medical benefits were paid, in full, in December of 1998. I also recommend a finding that there are no other STA violations arising from the present charge and that the complaint, in all other respects, be dismissed.
1. Whether Daymark, Inc. discharged William J. Bettner as a result of his prior Surface Transportation Act complaint and settlement, and safety complaints and actions protected by the Act.
2. Whether or not he quit, Daymark was obligated to either reinstate, continue his employment or rehire him.
3. Whether the failure of Daymark to immediately pay Mr. Bettner all of his "full benefits," including health insurance and medical benefits, in a timely manner, upon his reinstatement pursuant to a May, 1998 settlement agreement between the parties of a prior Surface Transportation Act charge, constituted a violation of the Act, for which a remedy was required when they were paid in full by Daymark in December of 1998.
Stipulations:
The parties stipulate, (T 25) and I so find:
1: Complainant William J. Bettner is an individual residing at 428 North Third Street, Rochelle, Illinois, 61068, and is an employee within the meaning of 49 U.S.C. Section 31101, Paragraph 2, and 29 C.F.R. Section 1978.101(d).
2: The parties stipulate that Respondent, Daymark, Inc., is a corporation with its principal business located at 3501 East Main Street, Russellville, Arkansas, 72802, and is an employer within the meaning of 49 U.S.C. Section 31101, Paragraph 3.
3: Respondent is a commercial motor carrier within the meaning of 29 C.F.R. Section 1978.101(e) and a motor carrier as defined at 49 U.S.C. Section 13102, Paragraph 12.
4: At all times material Complainant was an employee of Respondent operating commercial motor vehicles with a gross vehicle weight rating of 10,000 pounds or more in interstate commerce.
Summary of the Facts:
Mr. Bettner testified that he had been a long distance truck driver for 22 years, driving, primarily tractor-trailers. (T 48) He was initially hired by Daymark in May of 1996, and was terminated for the first time on October 16, 1996. (CX 7) This termination was the subject of an initial Surface Transportation Act charge against Daymark, which was settled, and resulted in Mr. Bettner's return to work on approximately May 26, 1998. (RX 1)
After Mr. Bettner's reinstatement, Daymark failed to timely complete the health insurance element of his "make whole" remedy from the settlement of the first charge, and, partially, as a result thereof, the parties experienced a rocky start in his reinstated employment. Therefore, Mr. Allison J. (Bud) Pierce, Daymark's Vice President of Safety and Human Resources, (T 310) scheduled a meeting with Mr. Bettner on October 1, 1998, concerning a number of other issues, and summarized the meeting with a letter on October 6, 1998, (JX 11) in which the following subjects were discussed:
1. Delay pay (Pa. on 9-3-98)
2. Lumber Charge (To Chicago 9-14-98 @$225.00)
3. Overweight Ticket (8-28-98)
4. Short Runs
5. Dispatched on 1548 mile run in 2 days (7-22-98)
6. Scheduled loads too close together.
7. The way (or method) we calculate mileage point to point.
By November 16, 2001, Mr. Bettner was considered by Daymark to have "quit" his employment, and to have been terminated for a second time. This resulted from a November 13, 1998 Qualcom message2 sent by Mr. Bettner to Jim Lape of Daymark, following a dispute over Daymark's
refusal to reimburse him for $127.25, allegedly incurred to unlock his truck when an alleged "malfunction" of the truck, or truck lock, resulted in him locking his keys in the truck, while he urinated outside of the truck. The Qualcom stated:
AT THE PRESENT TIME THIS WILL BE MY LAST LOAD FOR DAYMARK. YOU OR MR. PIERCE DEDUCTED $127 FROM MY CHECK AND TO ME AS I SAID BEFORE THIS IS THEFT. (CX 17)
In a follow-up letter of November 15, 1998, he argued that there should have been no deduction from his pay since there was a malfunction of the truck's lock system; that the company was responsible when such a breakdown has taken place, and that he had given no permission for the deduction. (CX 18)
Following this message, Mr. Bettner continued to Blufton, Indiana, and delivered the load on November 16, 1998, as scheduled, at which time he called Mr. Pierce concerning an "overage." (More product on the trailer than on the bill of lading.) (T 168) After other calls and an agreement by the Hershey Company to accept the overage, Mr. Bettner testified that he asked Mr. Pierce whether he had received the above November 15th letter. He testified that Mr. Pierce responded that he had not, and that Mr. Bettner did not tell him anything else in that conversation. (T 169) Mr. Bettner then unloaded the truck, and sent a Qualcom message saying that he was empty and reminded them that he had to return home for medication. He then dead-headed to Rochelle, Illinois. (T 169-171) He testified that on the way back, he received a Qualcom message that his resignation had been accepted, and sent a response asking: "Don't you think you're jumping the gun?" He received a reply on the way back to Rochelle, Illinois, telling him to clean out his truck. (T 171-172) When Mr. Bettner returned to Rochelle, they informed him to clean out his truck. (T 255-256)
However, Daymark continued to process the protest of its non-payment of the $127.25, and the appeal of the denial of the complaint, (JX 23) and processed other payments due under the settlement agreement, including the health plan payments. Mr. Bettner, did not return to work, but sought, and eventually obtained, another truck driving position at CX Roberson,3 from which he was terminated. (T 171-172) This resulted in a discussion with Mr. Pierce in which Mr. Bettner was asked what he wanted Daymark to say about his termination. He initially told Mr. Pierce that he didn't care what they put down (T 175) but later acknowledged that he told him to put down that he had "quit". (T 270 & 356) Mr. Bettner's health benefit payments, due under the settlement agreement of the first termination, were finally adjusted and paid in December, 1998. ( CX 7) He then worked for Best WayCarriers. (T 172)
Besides reinstatement and back pay (and/or front pay) and benefits due to him in the present matter, Mr. Bettner claims payment of ,531.00 due to him in vacation and other pay. (CX 7)
The Witnesses:
Besides the testimony of Mr. Bettner, and his wife, Nancy Lee Bettner, whose testimony was generally creditable, testimony was taken from the following witnesses:
Personnel Manager, Maribel Baker:
Daymark's Personnel Manager, Maribel Baker, testified about the changes in health benefits on April 1, 1998, just before Mr. Bettner returned to Daymark. (T 291)
She was recalled to review pay for miles traveled to retrieve his truck after his vacation, and the result was that he was paid double miles for the trip, which he states was, "due to an error," and for which no claim for reimbursement to Daymark has been made. (T 431-433)
I find that Ms. Baker was also a forthright and credible witness, based upon the directness of her testimony, and her demeanor on the witness stand. (Some of her statements were a little too self serving, but did not affect my overall evaluation.)
Vice President of Health and Human Services, Allison (Bud) Pierce:
Daymark's former Vice President of Health and Human Services, Allison (Bud) Pierce, testified that he served in that position from January, 1998 through December 31, 1999, when he left due to a downsizing there, (T 310) thus covering the period of Mr. Bettner's reinstatement, through his termination. He testified that his predecessor had left in November of 1997, and he had no one to tell him what had taken place, so he discovered Mr. Bettner's pending matter through a review of records on pending litigation. (T 311) In May of 1998, he was called by Mr. Bettner who told him that the judge had ruled for him to return to work, and he was ready to come to work. Mr. Pierce stated that he was cordial as he could be and told him that he did not have the court order yet, but he'd be glad to work with him on it as soon as he got it if that was the case, if that's what the judge has ordered. Mr. Bettner told him that this is what the judge had ordered, and if Mr. Pierce did not have him back there he was going to call his lawyer and sue him right then. He then assured Mr. Bettner not to worry about the matter; that we would walk through it, and to be patient with him. (T 312-313)
After contacting Daymark's attorney and verifying the order, Mr. Pierce talked to Mr. Bettner and told him that he was looking forward to having another driver come back to work with them and that, as a matter of fact, he felt pretty good about it since they needed drivers. Mr Pierce also testified that he told him that all the principals that were involved in his previous unfortunate circumstances were no longer there, so he could come back without any interference of them, if he felt they were a problem to him. (T 313)
Mr. Pierce then sent Mr. Bettner to go to their training facility in Indianapolis to review company procedures. This did not matter whether it was Mr. Bettner or anybody else that had been gone for six months, they would have him do the same reorientation. They also used it to fill out all of their paperwork to meet DOT and the labor standards. The process takes a couple of days, for which he was paid time and transportation. (T 314)
Before his return, Mr. Pierce talked to Indianapolis Director, Dave Stahle, and discussed the fact that, one of the things that he found that was consistent in the paperwork on Mr. Bettner, was that there seemed to be a lot of confusion with dispatches and with fleet managers, so he told him that he did not want this to happen again. He told Mr. Stahle that he did not care who he assigned him to, as a fleet manager, he wanted him to assign Mr. Bettner to one fleet manager, and that either he Mr. Stahle, or the other assigned fleet manager take care of it. He testified that he told Mr. Stahle to "make sure this fellow is treated as good as we possibly can." He eventually assigned him to Jim Lape as the Fleet Manager, which is the same thing as a dispatcher. (T 315)
Mr. Pierce stated that as the director of safety and human resources, he would be the appellate rebuttal for any issue he may have with operations or any other department; that what he meant by looking at Mr. Bettner's records from before, he noticed that there was some confusion with the dispatches, and that he didn't want that to happen again. He put that in the category of very fuzzy communication problems, and he just wasn't comfortable that it was a very well handled situation. (T 316-317) He testified that he did not know any other driver other than Mr. Bettner that complained that Daymark asked the driver to do something in violation of a commercial motor vehicle safety regulation. (T 317-318)
Mr. Pierce testified that he told Mr. Bettner to call him if he ever had any confusion. He did so at least weekly; sometimes twice or three times a week, on everything from his tractor through when he wanted to take some vacation, and really went ballistic because he was having to turn in his truck when he took a vacation. It took him hours to convince him it wasn't his truck, it was Daymark's truck; and going on vacation, they had a right to the truck, to put it in commerce. Mr. Bettner threatened to go back to his attorney, which he did at least every other week. He just would not come to the realization that he couldn't take his truck home and let it sit for a week, but he finally came around to it. He felt that we were not treating him fairly in the same spirit of which the court order was given to him. (T 321-322)
With regard to the meeting of October 1, 1998, and the resulting letter of October 6th, Mr. Pierce stated that he flew to Russellville to meet with Mr. Bettner about several matters that were raised by Mr. Bettner, including the seven matters listed in the October 6th letter. (T 336; see p.3, supra) The meeting lasted from 7:30 or 8:00 a.m. on the 1st until 2:00 in the afternoon, and covered all of the specific items of the October 6th letter discussed herein. (T 367)
I find that Mr. Pierce was a credible and forthright witness, whose testimony and demeanor support this conclusion.
Present Daymark Risk Manager, Curtis Singleton:
Although he has only been employed at Daymark since February of 2000, Risk Manager, Curtis Singleton, is involved with safety matters, and reviews drivers' logs to determine the number of hours worked, etc., including how the drivers fill out their logs. He has done this for three years, including other employers. (T 398-399)
Referencing the 15 hour rule, he stated his interpretation of it to be that it sets a limit that you can be on duty for 15 hours following an eight-hour consecutive break, off-duty break. . ., " and that the driver cannot drive more than ten hours within the 15 hour limit. His understanding of the 70-hour-in-eight-day rule states that a driver can't be on duty more than 70 hours in eight consecutive days. (T 400)
Drivers are notified of a delivery time on a particular load when they get their load assignment. This differs from a pre-planned assignment, since drivers are then given a window of delivery times. (T 410) A "predicted time of availability" is the time when Daymark's system indicates that a driver will be finished with another load and be ready to be dispatched on his new assignment. This is based on the information the driver has given you while in the course of delivering that prior load, and then, on his check call in the morning, telling us how many hours he has. (T 411) Basically, he testified that when a driver gets the dispatch he has to look at his own time and his own log book and determine whether or not he can legally deliver that load. If so, then he accepts the assignment. From Daymark's standpoint and the dispatcher's standpoint, if that driver accepts the load, that means it's a legal load. (T 412) Daymark concedes that in the course of driving that load, things can come up that would change whether or not the driver can make it, including weather, road conditions, driver fatigue, breakdowns, equipment breakdowns. When such circumstances come up, the driver is supposed to immediately notify his driver manager, so he can take a look at the overall load to see if we can still make the appointment, or see what their options are. If that can't be done, they either redispatch it to a Daymark driver or broker it out to an outside trucking firm if they need to do so in order to make their appointment time.
Drivers are supposed to let Daymark know their hours by 9:00 a.m. each day. (T 413) They cannot know where every driver is at every moment of every day, and depend on the driver reports to make such decisions. (T 414-415) On cross examination, Mr. Singleton confirmed that he had been with Daymark since February of 2000, and that he had reviewed the procedures of the old driver handbook and asked questions to confirm the procedures in effect before his employment there. (T 415-416) The computer scan of the logbooks catches the 15, 70 or 10 hour violations, recognizing his interpretation of the rules prohibiting a driver from driving after 15 or 70 hours, (etc.) , not being on duty for more than that amount of time. (T 416) I consider this to be a reasonable statement of the expectations of the company about driver response to assignments, which appears to be consistent with policy in 1998. The question is whether Mr. Bettner was in reasonable compliance with those expectations.
I find Mr. Singleton to have been a credible witness, with the caveat that he was not at Daymark during the Bettner issue, and that he should be given appropriate limitation and weight.
Fleet Manager Jim Lape:
In addition, a deposition was submitted from Fleet Manager, Jim Lape, (RX 12) which I have consulted for specific verification of conclusions in the findings of fact. He testified that, while he did not remember the specific incident with Mr. Bettner, nor did he have specific recall on many other matters upon which he was deposed, that he probably took Mr. Bettner's "last load" message to have been a "quit," and probably told him to clean out his truck because that is what he did when someone quit. He did not recall Mr. Bettner's specific "quit," or Mr. Bettner's telling him that he thought Mr. Lape was jumping the gun for saying that he had quit. (Lape Depo T 11-12) Mr. Lape verified the two Unsatisfactory Performance Reports, which he prepared on August 28, 1998 and September 3, 1998, (JX 3 & 6) but did not add much to them. (Lape Depo T 14-19) The rest of his direct testimony was all general, and added little to this case. (Lape Depo T 20-24)
Mr. Lape's cross examination revealed little else. (Lape Depo T 28-56) The most that he could say about Mr. Bettner was that his performance was not the best; maybe the worst, and that he was hard to communicate with. (Lape Depo T 55) He provided no details specific to this case.
I give no weight to Mr. Lape's deposition testimony.
The Health Insurance Issue:
With regard to Mr. Bettner's claim to health insurance benefits as part of his May, 1998 Settlement Agreement with Daymark, concerning a prior Surface Transportation Act charge, those benefits were not immediately paid, due, primarily, to a change in insurance carriers by Daymark. (See, testimony of Maribel Baker - T 292-299) Mr. Bettner testified that he sent a letter to the owner of CBS, the claims administrator for Daymark, explaining why his health benefits should be paid (T 182) and cited the terms of the prior settlement agreement, Item # 7 of which stated that he was, "entitled to all benefits and pay increases the same as if his employment with the Respondent had been continuous." (CX 4) He also filed protests to the Regional Solicitor of the Department of Labor, (CX 5) and, following other exchanges on the settlement agreement, (CX 6) sent a letter dated November 28, 1998 demanding full payment of his final compensation to Richard Hill, Chairman of the Board of Daymark, in the amount of ,531.00. (CX 7) Although he was considered to have resigned his employment by November 16, 1998, and paid his insurance benefits by the following December, on February 7, 1999, he filed the charge against Daymark, which is the subject of the present complaint. (T 184; RX 11)
Mr. Bettner testified that, one problem was the requirement that every employee had to fill out a new "HIPPA" enrollment form, including his wife and himself, with, what appeared to be a new "preexisting conditions" provision, that might render him unqualified for coverage. He stated that:
My understanding was that Daymark's insurance would go back from the date I was hired in 1996, which would have went into effect on September 1, 1996, according to the judge's order. (T 261)
It was Mr. Bettner's position that he should not have to fill out a new form due to the settlement agreement, and he refused to do so. His specific problem was that between the time of his first termination by Daymark and his reinstatement, he had gone to work for Roehl trucking, where he had health insurance, but then went to work for another place, where he had no insurance from May, 1997 to January 1998, when his other insurance expired. Therefore, he had no health insurance for the period of 60 days before his reinstatement to report, (T 264) thus leaving him in a position of possible non-qualification for the Daymark's health insurance, under the new plan.
Verifying that she was married to Mr. Bettner at the time of the hearing, Mr. Bettner's wife, Nancy Lee Bettner, testified that they had incurred medical bills after his return, due to a condition that she had. These included a number of medications due to her blood tests every three months which were not covered by insurance, but which were then submitted to Daymark representative Pam Love, but were not paid by Daymark. (T 27) After calls to Ms. Love, Mrs. Bettner called insurance company representative, Vivian Joyner (owner of CBS - Corporate Benefit Solutions, the Plan Administrator of Daymark's health insurance plan) on Ms. Love's referral. ( T 31 - 32) Mrs. Bettner told Ms. Joyner that their doctor would not see her due to the insurance company's non-payment of the bills, and she could not get her necessary prescriptions without first seeing the doctor. Ms. Joyner stated that their records did not reflect his reinstatement, and she did not know anything about it. (T 29)
Mrs. Bettner stated that Ms. Joyner told her that she said that she had discussed the problem with Daymark's Bud Pierce, and told him that he had to okay it, but that he would not do so. She had also discussed it with Daymark's Personnel Manager, Maribel Baker, who said she would check into it. She continued to try to get Bud Pierce to act on it, who she testified, she questioned about the matter ten to fifteen times. A letter was sent about supplying the information about the pre-existing conditions, and Attorney Taylor told her not to fill it out, after a discussion with the DOL Solicitor's office. (T 32 - 33)
Regarding the changes, Ms. Baker, testified the employees were sent a letter regarding preexisting limitation of 12 months for every Daymark employee receiving treatment within previous 6 months prior to their effective date. (T 292) As a complicating factor she testified:
When we switched insurance companies, it happened also at the initial [start?] of a new plan year, meaning that open enrollment is available. And anybody who was not with the prior carrier and was going to enroll a dependent or themselves into the plan ...[or]... anybody that came on board after the switch would have received that letter whether they were new employees or not. (T 292)
On June 19, 1998, Mr. Bettner was sent a letter to this effect about the preexisting conditions, which began as follows:
According to our records, your effective date with DAYMARK GROUP, INC. is 5/27/98. You will have a pre-existing limitation period of 12 months for any condition for which you sought treatment 6 months prior to your effective date. (JX 19)
The letter also stated that the limitation period could be, " reduced or eliminated by providing evidence of prior health care coverage," for which he was invited to provide certificates of coverage. (Ibid.) When asked whether he was given the 5/27/98 date as his date of employment, Ms. Baker said, "No," that "[h]e was given an effective date on insurance of 5/27/98." (T 293) When asked whether there was a six months limitation, she said, "No," that, [t]here was a six-month, for existing limitations, six months prior to that date. The carry forward would be 12 months for that preexisting condition if they could not show proof of credible coverage. (T 293)
She went on to state that HIPPA regulation does allow for portability of coverage, and that if a person has coverage [with any company] prior to their initial coverage with a new insurance for any particular period of time, that time is allowed to deduct from the preexisting period forward. (T 293-294) To qualify for that condition, she added: Now, for that preexisting also to be in place, the person had to have been treated, diagnosed for that condition the six months prior to the initial date of coverage. (T 294)
She also testified that the above terms and conditions basically apply to everybody; that the letter only went to certain ones that fell within certain categories, and that the letter that was sent to the Complainant here would have been the same letter that went to everybody in that class. It is a form letter printed immediately by the computer system of the insurance company, of the TPA. If something is wrong with that, it would have been wrong because of the calculations that were made about it in terms of his date calculations.
She testified that:
if we were to call that insurance company right now and ask them my effective date of coverage with them, they will tell you it was April 1, '98, even though my insurance actually started in "97." The reason is because of the switch. They cannot enter a prior date in the system because they did not have the contract prior to that time. And regardless of the fact that we're self-funded, like Mr. Taylor said, we still purchase other insurance to cover us after a certain point . . . [such as Catastrophic insurance and so on.
* * * And if we go outside of the plan document stipulated for that period of time, that will mean that that insurance company will find us in breach of contract and will not reimburse us for that money, plus violating some of our areas of regulations and things like that. (T 295)
At this point, I instructed the parties to address the question of whether Mr. Bettner was treated any differently than people in his class, in their briefs, taking any mistakes in calculation into consideration. Mr. Bettner's counsel stated that he knew of no such errors in calculations. (T 295-296)
With regard to Mrs. Bettner's statement that her medical bills were not paid until December of 1998, Ms. Baker stated that she disputed that position, because , "the TPA started processing their claims in October of 1998." (T 296) That, however, is not when they were paid.
When asked whether it normally takes six months to get a bill paid, Ms. Baker said, "No," but that, due to the change, everybody in the company was required to fill out a new enrollment form, including Mr. Bettner who was asked to fill one out. (T 296-297) She explained that, the Bettners refused to complete that form, and it was not until July of '98 when they finally received it. This was about a three-month period, from July until October, when the claims actually started being processed, which was not unreasonable for the industry. (T 297)
Mr. Bettner's counsel stated that he had no reason to contest what Ms. Baker had said, but that he believed that it was still retaliatory since it was very clear to them that he was to be treated as if his employment was uninterrupted, that they treated him otherwise, as evidenced by JX-19.
When asked what would have happened that was different had Mr. Bettner been continuously employed but did the same thing that he did, that is, delay his application for insurance, and come forward that way, he responded that he would not have the preexisting limitations outlined -- the preexisting limitation period of 12 months as outlined in JX-19. This was not a problem of the new coverage because the fact is that only certain people who were not enrolled in the plan were required to fill out were required to fill out those forms.
Complainant's counsel did concede, however that it got corrected. At some point (T 298), the fact that it was coming from the top, that is, from the insurance company; and didnot make any difference. Mr. Bettner's employment was that he was to be treated as if it was uninterrupted, and either that or the Employer can take it upon himself to resolve it.
Mr. Pierce also testified that he had several complaints from Daymark's third-party administrator about his abusive language on the health care issue, but Mr. Bettner was not bad with him. (T 322-323) Ms. Joyner complained that he was verbally abusive; that he used profanity; and he was instructed not to talk to anyone else other than her. (T 234) Ms. Joyner stated that this was the first time in their history that they've ever had a claimant that was so disruptive with them that they couldn't let a claims manager work with them. (T 325)4 Ultimately, Mr. Bettner provided all of the insurance claims forms and documentation, except for prior employer health care coverage certification, so when they learned that he didn't have prior coverage, they just told their insurance carrier to pay it. Daymark did have to "take a hit" for his preexisting circumstances, and was not able to use that to apply to their excess coverage insurance because they didn't have a HIPPA certificate that they thought he was capable of producing for it, to fulfil the settlement order. (Such an order would have allowed them to apply it to their aggregate coverage.) (T 327-328) Respondent concedes that the settlement agreement read that Mr. Bettner was to be restored to "full benefits," but argues that no one knows what those are. (T 334)
I would admonish Mr. Pierce and I now find that the failure to immediately pay Mr. Bettner the equivalent of "all benefits," if, and when (as happened here) something prevented direct payment of the benefits by the carrier, constituted a separate violation of the Act. Due to the extenuating circumstances of unexpected problems wrought by the change in carriers, and the final, full payment of benefits, plus Daymark's payment of those not covered by the new carrier, thus constituting a de facto admission and cure of the violation, I find that it was a separate violation, whether it be considered "technical" or not as referred to by me at the hearing, and find that the violation has been remedied, and that none of the alleged adverse actions taken against Mr. Bettner such as the Unsatisfactory Performance Reports, the deduction of the $127.25, and the refusal to reimburse the $225.00 lumper fee, etc., as otherwise set forth herein, constituted one or more other violations of the Act.
With regard to the insurance issues, Ms. Baker testified that she handled the day-to-day issues, reporting to Mr. Pierce, and verified the changes with insurance companies, including the various forms required to do so, and with which Mr. Bettner had problems. (T 318) Mr. Bettner was argumentative about signing anything, in that they were not supposed to treat him as a new hire, but like he was just coming back, and he would spend hours talking to him about the fact that all they were doing was going through a very bureaucratic process. The key thing that got him to finally fill out his enrollment form, was that Mr. Pierce said that he had to put him down for his life insurance to be in effect, and he had to have an enrollment form with his wife as beneficiary, which he finally filled out. He stated that Mr. Bettner was not treated any differently than any other employee at Daymark that did not have prior coverage with Daymark. (T 319-320) Ms. Baker confirmed that in addition to the health insurance claims that were processed and paid by the health insurance company in December of 1998, Daymark did pay out of pocket expenses to Mr. Bettner, (and/ or to creditors) to conclude the health insurance dispute with Mr. Bettner, for which they were not reimbursed. (T 444)
This may have indicated an act of non-compliance, regardless of the clarification. He certainly should not have been treated the same way as any other employee who did not have insurance with Daymark prior to the switch; but, perhaps, he should have been treated differently than any other employee at Daymark that did not have prior coverage with Daymark. He had prior coverage with Daymark before the termination and charge on that matter that resulted in his reinstatement and "make whole" order. Since he had insurance before his termination, or would have had continuing eligibility at that time, that same condition attaches when he is reinstated, regardless of changes wrought by a change in insurance carriers.
Three "Illegal Loads," Two Unsatisfactory Performance reports:
Three of the above issues discussed in the October 1, 1998 meeting involved late deliveries. One involved a 1548 mile trip from New Kingston, Pennsylvania, to Arlington, Texas, from July 23, 1998 to July 24, 1998, in which he testified that he had sleeping and fatigue problems; the second involved a trip from Chicago, Illinois to Chatanooga Tennessee, on August 26-27, 1998, in which he had a number of
problems, including an "overweight" ticket problem, and the third was the Foglesville, Pennsylvania trip on September 2-3, 1998. The Chattanooga and Foglesville "late deliveries" resulted in Unsatisfactory Reports.
Confirming that there were three loads that he "considered illegal:" the July 24, 1998 load to Texas (Arlington); the August 26, 1998 load to Chattanooga, and the September 2, load to Foglesville, Pennsylvania, (T 193) Mr. Bettner confirmed that there was never a time in the log pages shown for those trips (CX 1) that he violated DOT regulations, and that no one at Daymark ever told him to do so when running those trips. (T 194) He also confirmed that he was never given discipline or adverse action for the Texas trip, (T 194-195) and that while he considered the Texas load to be illegal from the time frame that he was given to deliver it, Daymark did reschedule the trip. (T 195) Mr. Bettner also affirmed that it is common business practice to make changes when the driver cannot get to the shipper in time, as originally planned, and notice of problems to the dispatcher gives him the opportunity to reschedule pick-ups and drop-offs. (T 196) There is a canned message concerning driver hours that is sent-in, in the morning, (T197) one of which for Mr. Bettner for the period from August 1, 1998 through September 3rd, is demonstrated in the back of the logbook. None showed hour violations. (RX 8)
Quoting Daymark's understanding of the 15 hour rule as not being able to drive 15 hours without an eight hour break, and that a violation is in control of the driver, the driver is supposed to shut down and go into the sleeper berth when he reaches his fifteen hours. (T 200) When a load is assigned, which has a pick-up and delivery time on it, the driver acknowledges the load by canned message Qualcom, with the driver having the opportunity to determine whether he can run it legally. (T 200) At the bottom of the message, if the delivery time is to be changed, there is a place "to punch in the date and time when you can be there." (T 201) The company is then supposed to take care of the matter, and either acknowledge the change, or state that it is a "hot load and it has to be there." (T 201) Mr. Bettner agreed that "acceptance of that load acknowledges that it's a legal load that can be run legally," from the figures that he had put in at the bottom. (T 202)
He then confirmed that he had accepted the three loads in July, August and September, which may or may not have had adjustments, (T 202-203) but in accepting them he would not say that they were legal. (T 203)
With regard to the October 1st meeting and the October 6th letter, followed by the two Unsatisfactory Performance Reports which were sent to him, with Mr. Bettner's responses, he testified that they were sent to him for rebuttal, which were sent back to Daymark, (T 240) but otherwise, did not respond to the October 6th letter. (T 242)
The testimony and the documentary evidence, and my findings of fact on each of the three alleged illegal loads are discussed as follows:
Dispatched on a 1548 mile run in 2 days (7-22-98): New Kingston, PA to Arlington, TX - (10/6/98 Ltr. - Item # 5):
On July 22, 1998, Mr. Bettner received a dispatch sending him to New Kingston, Pennsylvania, (CX 10, p. 10; CX 2) to pick up a load for delivery to Arlington, Texas on July 24, 1998 (T 59); a distance of "1545" (sic: 1548) miles. (T 71) On October 1, 1998, he met with Mr. Pierce, Mr. Lape and Maurice Kessler, and objected to being dispatched on a 1,545-mile run that was to be delivered at 1900 hours on 7/24/98. (T 71) He testified that the load was not ready for him in New Kingston on July 22nd until 10:30 p.m., and he felt that it was not possible to drive the distance in 24 hours , (T 71 - 72) calling it an "illegal run." (T 72) Mr. Bettner testified that Mr. Pierce stated that he knew that Mr. Bettner could not make the run of 1,545 "book" miles (Household Mover's Guide miles) in two days. (T 73)
Mr. Bettner contends that it is his experience as a truck driver since 1979 that those "book" miles are 10 to 15% shorter than the miles of the actual run. (T 74) (For reasons otherwise stated herein, this is due to a Daymark, non-discriminatory policy to use the Rand McNally Houson's Moving Guide Mileage System, and does not affect this case.)
The October 6th memorandum of Daymark stated that this was a "legal run;" that Mr. Bettner stated to them that he "didn't have the hours to run it;" that a review of his logs showed that he had entered "on duty, not driving" even though he did not "have any loading or unloading responsibilities;" that his "explanation was that ...[he] ... can't just go to sleep and ...[he]... just walk around," and that they suggested " that ...[he]... make efforts to gain sleep in the sleeper berth and avoid the fatigue factor the remainder of the day." (JX 11)
Mr. Bettner testified that the entry for "on duty not driving" did not refer to the "1,545" - mile run from Kingston, Pennsylvania to Arlington, Texas, but that he did tell Mr. Pierce that he did not have the hours to make that trip in that time, and make it by July 24, 1998, and did not recall reviewing the logs with him on October 1, 1998. He stated that this logged "on duty, not driving" time during that trip had to do with unloading, fueling and vehicle inspections, including air leaks for brakes, exhaust leaks, headlights, tail lights, brake lights and stop lights. (T 76-78) He testified that the amount of such "on duty, not driving" time does not affect a day's work but will affect the "70 hour" rule (the 70 hours in 8 days driving limitation). (T 79) His log for July 25, 1998 shows that he actually arrived at Arlington. Texas at 1:00 p.m. (T 75; CX 1, p. 13) His hours when he is most prone to sleepiness are 4:00 to 7:00 p.m. (T 75)
So the question is: why log it as "on duty, not driving," when it could have been logged as something that would not count against his 70 hours? This was a legitimate question. He was not disciplined for this. It was part of a legitimate discussion.
When asked why he didn't go into the sleeper berth, he answered that he just could not go to sleep whenever he wanted to, so he would "just walk around." (T 351)
Having testified that the driver could make the 1,545 mile trip in two days if the driver was fresh off from an eight hour break, assuming that the driver on day 7 has driven 68 hours as a total on duty time, and he gets a "fresh eight," Mr. Singleton confirmed that such a condition would not mean that he could travel 1,500 miles in two days, and that the previous days' travel could affect that calculation. (T 417-418) He also conceded that other on duty, not driving time may affect the result, such as refueling, vehicle inspections, etc. (T 418-419) He also conceded that there was no way that a driver could make a 1,545 mile trip in two days, every single [two] day(s). (T 419)
In light of Mr. Bettner's own explanation, the differences over the Arlington, Texas trip appears to have been a legitimate inquiry and response by the Employer, even though the threshold raising of it as a safety matter by Mr. Bettner may have been facially and initially protected, and the raising of it in the October 1 meeting constituted a potential adverse action in response thereto, as it was potentially disciplinary in it's nature. However, it is my conclusion, that the employer's business explanation of the legitimacy of the assignment was reasonably articulated; that the assignment itself does not appear to have been an illegal one when it was made; that the delay in loading was not timely and reasonably communicated to the Employer; that Mr. Bettner was, in fact responsible for some of the delays that resulted in his late arrival, deserving of inquiry and explanation; that this was a normal, day-to-day dispute between the Employee and the Employer over which reasonable minds could differ, rather than part of a pattern of discrimination, and that no aspect or effect of this particular inquiry constituted a violation of the Act, in the final analysis.
Overweight Ticket - (8-28-98 (sic) 8-26-98): Chicago, IL to Chattanooga, TN - ( 10/6/98 Ltr. Item #3):
Mr. Bettner testified that on August 26, 1998, he was dispatched by Daymark on a load to Indianapolis from Columbus, Ohio. When he arrived for the trailer, he discovered that the locking pins for the axle were not locked in, and that he "jacked around and pounded and beat, and ... finally got the pins locked in." (T 80-81) He then drove the truck to London, Ohio and had it weighed; found that it was still overweight,5 and had to move the axles again, to reduce the poundage on the axles. (T 81-82)
He then received an "advance load information" report for a Chattanooga, Tennessee run, to be picked-up in Chicago and delivered to Chattanooga by 9:30 a.m. on August 27th. (T 86-87) He testified that he informed them by Qualcom that he could not make it by 9:30 on the 27th, and he went in the sleeper because he was "tired, sleepy." (T 87) He testified that he believed that it would have been unsafe for him to drive, because he was "afraid of falling asleep at the wheel." (T 88)
Mr. Bettner stayed in the sleeper until 1:30 a.m on the 27th; tried driving for a half hour; pulled into a rest area in Columbus, Indiana, to sleep again because he was "fatigued," and slept from 2:00 a.m. until 8:00 a.m. (T 89; CX 1 pp. 14-15) In response to the question as to whether he had an eight hour break from 7:30 a.m. on August 26th, Mr. Bettner recounts that he slept for two hours from 11:30 p.m. to 1:30 a.m starting on the 26th to the 27th, and then had six hours from 2:00 to 8:00 a.m. on the 27th. (T 90) This raises the "split sleeper berth" rule, which is that, "[y]ou can take it in two segments if one is at least two hours long .... and the other one totals .... eight hours, the two sleeper berth times." (T 90)
It is my conclusion that Mr. Bettner met the 70 hour rule, despite his inferences to the contrary.
Mr. Bettner then drove until 9:30 a.m., but stopped at the State Highway Scales at 8:30, at Seymour, Indiana, at which he was found to be overweight on the axles, and received an "overweight ticket." He testified that since this was a sealed load by the shipper or another drive, and figured that the driver who had delivered the load to that point had weighed it because that driver had at least one, and possibly two scales from Chicago to Indianapolis, he did not weigh it in Indianapolis. However, as a result of the ticket, he was delayed 45 minutes at that scale, and paid it himself. (T 91-93)
In response to a Qualcom inquiry at Seymour, Indiana, Mr. Bettner testified that he sent a Qualcom reply stating that he had "sent back a message that I had to stop and sleep, that I was tired. And ... that I couldn't make it at 9:30 in the morning and I ... had just got an overweight ticket." (T 95) In response to that, he received a Qualcom that they had rescheduled the arrival time of his load to 1500 on August 27th, or 3:00 p.m. He testified that he actually arrived in Chattanooga at 6:00 p.m. on August 27, 1998, for which he received an unsatisfactory performance report dated August 28, 1998, for "late delivery." The report itself states both "Late for Delivery" and "Other: Did not weigh Ld @ Indy when he pick'd up....;" (T 96-98; JX 3) with the comment:
Original appt. was 1500/ Driver pick'd up Ld @ 0048 27th in home in yrd - 391 miles to drive - appt had to be changed - because Drvr could not make deliver @ 1500?-
Mr. Bettner maintains that he did not discuss the report until the October 1st meeting, but did not acknowledge when it was received. (T 97) The delivery was then rescheduled to 15:00, but he did not arrive in Chattanooga until 1800 (6:00 p.m. ) (T 98) The report states that it did not arrive until19:21, (JX 3) but he testified that, "I probably didn't send the arrival." (T 98) He then testified that he could not have arrived at 1500 because, "I just could not drive that fast." He stated that this was the case, even if he had not had the overweight ticket., and that he could probably have made it had he skipped his sleep breaks in Indianapolis and Columbus, Indiana, (T 99) but that he might had fallen asleep and killed someone had he done so. (T 100) (Mr. Taylor maintains that regardless of whether he arrived at 6:00 p.m. (18:00 hours) or 7:21 p.m. (1921 hours) Mr. Bettner could not have made the 15:00 rescheduled time. - T 100)
With that, Mr. Bettner reviewed the responses that he made to the report. (T 104; JX 3, p. 2) The original report is signed on August 28, 1998 by James W. Lape, (JX 3, p. 1) but the driver, Mr. Bettner, did not sign it until October 22, 1998, (JX 3, p. 3) to which he added the following statement of disagreement and rebuttal:
Item #1: The original appointment was 9:30 A.M. on August 17, 1998.Item #2: I was expected to drive from Columbus, Ohio to Indianapolis, IN (181 Miles) and then from Indianapolis, Indiana to Chattanooga, TN (419 Miles) without taking an 8 hour break, even though I would be breaking the 15 hour rule.
Item#3: At 9:00 A.M. I was stopped for being overweight at Seymour, Indiana [at which point he describes the Qualcom exchange on the delay; his release from the scales at 9:45 A.M., and his rescheduling to 3:00 p.m. E.S.T., (2:00 C.S.T), which for 350 miles would be 82 mph, to run from Seymour, IN to Chattanooga.]
Item #4: Did the other driver get written up for not weighing the load . . . in Chicago? If he did not then you have singled me out. I knew nothing about this report until October 1, 1998. [It] should be removed from my file at once. (JX 3, p. 3)
With regard to Item #2, Mr. Bettner insisted that he would have to drive the 419 miles from Indianapolis to Chattanooga without an eight hour break, if he was to arrive by 9:30 a.m. on the 27th.
On the August load, he did remember accepting the load, and that it did have a delivery time of 9:30, but could not recall whether he had put anything at the bottom at that time. (T 205-206) He does state, however, that when he picked up the load, he told them that he could not make it by 9:30 a.m. EST on August 27th. (T 206) There were hours between the time of the dispatch and the time of picking up the load on that trip. (T 207) He recalled receiving the dispatch on a freeform message, preplan, before he had the problems with moving the axles on the trailers. (T 208) This delayed him picking up the load in Indianapolis. (T 209)
The log shows that he arrived in Indianapolis at 11:00 p.m.; that the delay was due to the axle problem; that he spent hour on duty, not driving when he dropped off one trailer and picked up another, and at that point Qualcommed that he could not deliver the load by 9:30 a.m. because he was too tired. He did not say it was due to not having enough hours, and does not think he ever said that. (T 209-210) At that point, he went back into the sleeper til 1:30 a.m. on the 27th;
drove for half hour; was still too sleepy; stopped and went back into the sleeper at 2:00 a.m. until 8:00 a.m. On awakening, he took an eating/bathroom break for 15 minutes, then did an inspection for 15 more, and arrived at the Seymour, Indiana DOT scale at 9:00 a.m. to 9:45. He had not weighed the load, because it was a "split load" that someone else had picked up in Chicago, and he assumed that someone else had weighed it. (T 211-212) So, at the Seymour DOT scales he received an overweight ticket. (T 212) He acknowledged that it was his responsibility to have had the load weighed. (T 213) Mr. Lape Qualcomed him at the Seymour scales, asking in a nasty message, why he was not further down the road. (T 213-215) Mr. Bettner stated that he must not have read his screen about what was happening. (T 215) At that point, however, whether Mr. Lape had seen the screen or not, he did change the appointment from the 9:30 arrival time to 15:00 hours. (T 216) Mr. Bettner did not Qualcom him back at that time, but did so later on, stating that he did not have enough hours. (T 217)
Looking at page 2 of the Unsatisfactory Performance Report, (JX 3, p. 2) regarding possibly breaking the 15 hour rule on the Indianapolis to Chattanooga load, he admitted that he did not break it; (T 219) that he had a fresh 15 hours from 8:15 that morning of August 26th, per the log, (CX 1, p. 14) and could have driven 10 hours. (T 219-220) Then, after sleeping from 11:30 p.m. on the 26th until 8:00 a.m. on the 27th, he would have another 15 hours to drive 10 hours. (T 220-221; CX 1, pp. 14-15) However, he was fatigued, according to his testimony, and that is why he stopped. (T 221-222) He complained that he had been up since 7:00 a.m. on the 26th, (and worked until 11:30) but admitted that he had a 2 hour nap during the day. (T 223) When asked that he never told Daymark that he couldn't make it because he was too tired - only that it was, "too far," he responded that he had said that he could not make it by 9:30. However, when quoted paragraph 20 of his affidavit, in which he said that it was "too far," he acknowledged that that's probably what he said. (T 223) He also confirmed that when he arrived in Chattanooga, at 6:00 p.m., according to his log, (CX 1 p. 15) he did not Qualcom the delivery until 11:00 p.m., (T 224) the times of which would have been another hour, since the entries were made on Central time, even though the arrival was on Eastern time. (T 225) In other words, Mr. Bettner was not clearly giving messages to dispatch that he was stopping due to being fatigued, when he made such stops.
Concerning the August 26th / 27th load to Chattanooga, he was not the one who rescheduled it from 9:30 a.m. to 1500, and did not tell Mr. Lape to do it. (T 273) Acknowledging that he has weighed other loads, Mr. Bettner testified that it usually takes a half hour or so to weigh a load, and weighing the load would have caused another half hour delay on the Chattanooga load. (T 274)
That did not relieve his responsibility for the overweight ticket, which must have cost him at least a half hour.
With regard to the overweight ticket on the August 27th load, and the Unsatisfactory Performance Report , (JX 11, par. 3,; JX 3) Mr. Pierce identified the issue to be that: "He didn't weigh the load. He didn't scale it out according to company policy. And he felt like that he didn't have to pay this ticket, the company should pay it." (T 345-346) Other than that, the reason that he gave for being late was that, "he couldn't slide the axles, which I took issue with, because he ...had the ability to notify night dispatch that he had a mechanical problem, ... [or]
any problem, but he didn't." He did not say that he was fatigued or sleepy, or that he did not have enough driving hours. (T 346) He testified that split loads are treated the same, (T 347) and paragraph 21 of Daymark's handbook provides:
On overweights, you're responsible for all overweight tickets. When you have a question, weigh it and contact your fleet manager. (T 348; JX 20)
With regard to vehicle inspections that average 15 minutes, post trip paperwork, refueling, rest breaks, Mr. Pierce admitted that these must be factored in during a ten hour run. (T 379-381) Also, with regard to the 70 hour rule, (a driver cannot drive after being on duty more than 70 hours in 8 days) (T 381) Mr. Bettner's rebuttal to the August 26th/ 27th Unsatisfactory Performance Report (JX 3, pp. 2 & 3) was seen by him, and he has a problem with item 3. (T 383) Mr. Pierce said that if Mr. Bettner had called in, they would have changed the delivery times, and he would not have been late, but he did not do so. (T 384)
Mr. Pierce confirmed that Mr. Bettner's adjusting of the axles that took place in London, Ohio, was not unusual, and that it takes place every day. (T 385) Otherwise, Mr. Bettner did not complain to Mr. Pierce about having services available to him, and there is no other evidence that he had such an axle problem, which Mr. Pierce is, therefore, inclined not to believe, (T 389-390) apparently, because of that fact; the lack of evidence in the form of log notations, calls, etc. On redirect, Mr. Pierce directly tied this Mr. Bettner's failure to report such a problem, and testified that, "on top of that, we researched that trailer afterwards to see if the next driver had problems with it, and they did not." (T 395-396)
Mr. Singleton testified that the drivers' log forms are scanned into a log scanner, and a monthly driver's report is printed from it, as demonstrated from that of Mr. Bettner from August 1-September 3, 1998. (RX 8; T 400-401) Other than the driver rule violation noted for Mr. Bettner for August 7, 1998, he did not know of any others during the six month tenure of Mr. Bettner's reinstatement. (T 401-402) It was Mr. Singleton's opinion that a driver coming off from an eight hour, off-duty period, could drive a 1,400 - 1,600 mile run in 48 hours. (T 403) Regarding the August, Indianapolis to Chattanooga, trip, his review of Mr. Bettner's logs for the trip reveal " poor driver management of time." (T 403-404) In explanation, he testified that:
The law allows for you to split sleeper berth time or combine sleeper berth time with off-duty time in order to reach eight consecutive hours, again, to allow you to start counting ten hours and 15 hours again.And from what I could tell, what Mr. Bettner was doing was taking unnecessary time off or using his time unwisely, not taking advantage of the allowances in the law in order to meet our schedule times. (T 404)
In addition, Daymark requires that overweight tickets be reported to the safety department; that drivers are required to weigh loads each time that they pick up a new or a split load, to assure that it is legal, and that each time that a DOT rule is violated, which is public information, it affects Daymark's insurance, and its customer relations. (T 404-405) The "gross vehicle weight limit" of 80,000 lbs., affects both the tractor and the trailer, so a "repowered move" with another tractor, and/or with the "paraphanalia" carried by the driver, could immediately affect the "gross weight." (T 406). The axle overweight is 12,000 lbs. for a front axle, and 34,000 lbs. for rear trailer tandems. Depending on how the load is loaded, if the driver is not over gross, he should be able to compensate for that by either sliding the slider forward or back, take some more weight off the trailer, put it back onto the tractor tandems, or vice versa. (T 406)
Regarding Mr. Bettner's claim that he did not weigh the split load due to the fact that he assumed it was underweight because the driver had already brought it down from Chicago, the load can shift, or again, the configuration of the tractor could be different. There could be more fuel on one or the other. Sometimes, he stated, the loads run pretty close to the limits on gross weights in order to carry a full load, and the amount of fuel they can have will be specified. (T 406)
Mr. Singleton testified that he was not familiar with any Daymark policy regarding drivers being prevented from stopping if they're fatigued, and, in fact, they encourage them to stop and rest if fatigued. He stated that the handbook is pretty clear on that point, that if the driver is fatigued, safety is first. If they have to stop, they are required to deliver their loads on time. Therefore, the first thing they should do is let the manager (driver manager, dispatch, 24-hour support, whoever) know, so that they can reschedule that load. This could include, perhaps, taking them off the load and putting somebody else on it if we have somebody available. (T 408-409)
Mr. Singleton knew that Mr. Bettner was "written up" for being late to Chattanooga. (T 422; Jx 3) Looking at his log book for August 26, 1998, the Indianapolis entry for 11:00 p.m. (actually, "on duty, not driving" at 11:00 p.m., and "sleeper berth" at 11:30 p.m.) Mr. Singleton was asked what Mr. Bettner should have done differently after leaving Indianapolis. He confirmed that it was okay for him to sleep there, and that the one thing that should not have happened was the overweight ticket in Seymour, Indiana, but that if he had scaled the truck there, it would have taken some time; with, perhaps, a ten to fifteen minute difference; and that he could have taken a lunch break. (T 424-425) However, Mr. Singleton maintained that while, "(h)e can sleep when he's ready, (h)e needs to manage his time ... appropriately." (T 426)
On redirect, dealing first with the Chattanooga trip, and Mr. Bettner's sleeping at 11:30 p.m. on August 26th, Mr. Singleton acknowledged that Mr. Bettner had already been in the sleeper berth ten hours and off duty for another five hours, leaving nine hours for work, which he characterized as not indicative of the rest of Daymark,s driving staff, "by any means." (T 428-429) He also acknowledged that it was not impermissible for him to be in the sleeper berth from noon to 2:30 p.m. that day. (T 430)
I find that that Mr. Bettner did not notify dispatch in a timely and exact manner when he had to divert from the schedule. What happened, according to Mr. Vogel , was that when he did not make the 1500 schedule, they simply called the customer back and said, "Figure its going to be there by 2300 hours and it will get there sometime." A Qualcom to Mr. Bettner says, "Just get there when you get there." To Mr. Vogel the Employer's problem was that Mr. Bettner was late for the 1500 scheduled time. (See my discussion at T 100 - 103.) I also conclude that there was no evidence of discriminatory conduct presented in Daymark's treatment of Mr. Bettner, on any of these points. While it is not always clear when parties are arguing minute differences between purported, legitimate management perceptions and concerns, and alleged retaliatory conduct, and exactly which is which, it is my perception that Daymark's concern with the way Mr. Bettner was managing his time was within the bounds of legitimate management discretion, and that it is far from proof by a preponderance of the evidence that it was, in any manner, retaliatory conduct.
Delay Pay: (Sept 2-3, 1998); "Blocked-in;" Indianapolis, IN to Foglesville, PA - ( 10/6/98 Ltr. Item #1):
A similar exchange and Unsatisfactory Performance Report issued on September 3, 1998, from the October 1, 1998 meeting regarding another late delivery due to being blocked-in by two other trucks at a truck stop. (JX 4 &5) He was scheduled to arrive in Rogersville, PA at 14:00, (2:00 p.m. EST) and arrived at 15:01 (3:00 EDT) He sent a Qualcom at 4:39 CDT (3:39 EDT) recounting the blockage at Shenendoa Truck Stop in Old Washington, Ohio. (Judicial notice is taken of the fact that Old Washington, Ohio is approximately 45 - 50 miles from the Ohio/West Virginia border, and another 40 + miles from there to Rogersville; while Jones Mills, Pennsylvania is another 100 miles east of Rogersville. ( JX 4) (This Qualcom also showed his "current location" at 08:52 to be 4.3 miles ENE Jones Mill, Pennsylvania, although he stated in the Qualcom that he was in Old Washington, Ohio at 04:39) (2001 Rand McNally Road Atlas).
Mr. Bettner stated in the response to the Unsatisfactory Performance Report, that he did not receive the report until October 19, 1998, although it was definitely raised to him on October 1st. (JX5, p.2) He also stated that there were 3 trucks blocking him on September 3rd, and that the company had ignored his dispatch (Qualcom) that stated that he was stopping for safety reasons. (JX 5, P.3) He further stated that they had ignored the fact that he, "had either been on duty or driving ... day before (Sep 2) for 10 hours and ... was fatigued at Old Washington," when he, "stopped for safety reasons." (Ibid.) In addition, he stated that the company, "ignored the fact that it was 469 miles from London, Ohio to Foglesville, PA when ... (he) ... received the load at about 9:00 o'clock _.m. on September 2, 1998." He then went on to state that it was an "unreasonable" and an illegal" dispatch., and demanded that it be removed from his record. (Ibid.)
Mr. Bettner had driven 2 hours on September 2nd, and had spent from 8:00 a.m. until 2:30 p.m. doing a piece count on the dock, i.e., "on duty, not driving," in Columbus, Ohio. (T 117-118) when he was dispatched to Foglesville, Pennsylvania. The load was to be picked up at a 76 Truck Stop in London, Ohio. At 4:00 to 5:00 p.m. he drove from
Columbus to London, Ohio; went in the sleeper berth from 5:00 to 8:00 p.m. while waiting for the other driver to show up with the load, and had something to eat. Next he unhooked his trailer for the other driver, and hooked his for the load to Foglesville from 8:30 - 9:30 p.m.(corrected to 8:15 - 9:15 - T 121); drove to Old Washington, and went in the sleeper berth from11:15 on September 2nd until 4:45 on September 3rd. (T 119-123; CX 1, pp. 16-17)
Basically, he testified that he went in the sleeper because he was tired, and it was safer for him to stop and go into the sleeper at that time. (T 223) When he got out of the sleeper berth, he saw that he could not move his truck, so he sent the Qualcom message stating that: "I CANNOT GET OUT OF THIS PARKING SPOT SO I AM GOING IN TO HAVE SOME COFFEE AND NOBODY HAS MOVED BY THEN I AM GOING BACK TO BED. THE LOAD CAN JUST GET THERE WHEN IT GETS THERE. I'M AT THE SHENENDOAH TRUCK STOP IN OLD WASHINGTON, OHIO." (JX 4) After sending the Qualcom regarding the situation, (JX 4) he did not receive a reply, and did not receive any instructions from Daymark. (T 276) He lost 45 minutes at that stop, after he had exited the sleeper there; from 4:45 until 5:30 p.m. (T 125 - 126) At 5:30, the J.B. Hunt truck that was blocking him was gone, and he cannot tell exactly what time it left. (T 126) He would have normally taken time to clean up and eat than anyway. (T 127) Mr. Bettner explained that when on the road, knocking on the door of a driver who is sleeping, "is a good way to get yourself shot." (T 127) He was going into the stop for the reasons stated anyway, and did not see any reason to call the sherriff. (T 128)
Following this stop, he drove to Wheeling, West Virginia and got fuel from 6:45 to 7:15 on the 3rd, and arrived in Foglesville at 2:00 p.m. (T 128) Noting that he was on the phone (from 9:45 a.m. to 10:30 a.m. - CX 1, p.17) at Somerset, Pennsylvania, Mr. Bettner was asked about that, and stated that he was on the phone with Mr. Pierce. This was after having received a Qualcom message, which he assumed to be from dispatcher, Jim Lape, wanting to know why he was not further down the road. (T 128-129) He referred him to his earlier Qualcom message stating that he was stopping in Old
Washington for safety reasons, which he repeated to Mr. Pierce, and stated that he had stopped because he was "tired," " sleepy" and "fatigued." (T 129-130)
Here, he confirmed that he did not always send a message when he stopped to sleep; and, on the Chattanooga trip, that he only told them that he could not make the delivery by 9:30 a.m. on August 27th. However, he did tell Mr. Pierce about being fatigued, in the October 1st meeting. (T 130) In Foglesville, he arrived at 2:00 p.m., and was told that he would be "sitting awhile," and was not unloaded until 11:00 p.m. Meanwhile, he went to the sleeper berth from 2:00 to 10:00, and off duty for an hour from 10:00 to 11:00. (T 131-135)
Referring to the Unsatisfactory Performance Report that he received on October 19th for the September 3rd trip, (JX 5) it was pointed out that the appointment time was stated to be "14:00 hours, or 2:00 p.m., ["arrived at 15:01 3rd"] Mr. Bettner testified that, in his October 1st meeting with Mr. Pierce and Mr. Lape, he testified, as shown also in his rebuttal to the report (JX 5, p. 2-3) that the three trucks, including the J.B. Hunt Truck, were blocking him, and that they had ignored a dispatch that he was stopping for safety reasons; that he had been driving for 10 hours on September 2nd, and that he, "was fatigued at Old Washington when ...[he]... stopped for safety reasons." (T 136-138) He testified that he had told Mr. Pierce on October 1st that Daymark had ignored the fact that it was 469 miles from London, Ohio to Foglesville, Pennsylvania; that he had received that load at 9:00 p.m. and that the London to Foglesville dispatch was an unreasonable and an illegal one. Mr. Lape's reply was that it was his responsibility where J.B. Hunt's trucks parked, and that he should park in spots where he would be able to move his vehicle. (T 138-139) Mr. Becker testified that he had parked in a place marked for trucks; that he parked in the same manner that he usually parked, and that the Hunt truck was not there when he parked. (T 139-140) He also testified that he requested detention pay for the September 3rd Foglesville delay, which set off the September 9-10, 1998 dispute with Jim Lape over detention pay, and 20 pages of Qualcoms resulting therefrom. ( T 140, pp 1-20) Mr. Bettner asked Mr. Lape how detention pay was calculated, to which Mr. Lape gave the formula, and added: "IF DRIVER IS LATE AND IS AT FAULT THERE WILL BE NO DELAY PAY." (JX 6, p. 2) Mr. Bettner argued that the word "late" was not used in the handbook, to which Mr. Lape responded that this was the way it was paid. (JX 6 p. 4) Mr. Bettner asked if he had been written up as "late," on the Foglesville trip, and was told that Mr. Pierce was working on it. (JX 6 p. 6) He then asked whether there was an "APPT TIME" for the trip he was on, and was told it was "midnite tomorrow," thus ending the exchange on September 9th at 20:49:12 CDT. (JX 6, pp. 8-9)
However, in the next Qualcom of September 10, 1998, at 9:43:33, he asks whether Mr. Lape was suggesting that he not have stopped to sleep, to have had a break or to eat, and then asked when the detention policy began, (JX 6 p. 10-11) to which Mr. Lape responded that he does not pay delay on late deliveries due to the fault of the driver. Mr. Lape told him to talk to Mr. Pierce about it if he has a problem with it, and that he did not have time to argue about it. (JX 6 p. 12) Mr. Bettner then Qualcomed a question about not answering his questions and Mr. Lape responded that that is his answer, and that: "IF U CAN'T DO THE LD U NEED TO TELL ME WHEN YOU GET ADVANCE LD INFO/ SO WE CAN PUT A DRIVER THAT CAN DO THE LD ON IT/ DO NOT WAIT UNTIL U GET THE LD LD'D THEN TELL ME U THAT U CAN'T MAKE DELIVERY B-CUZ U DO HAVE HRS." (JX 6 p. 15) Mr. Bettner retorted that he never said he was out of hours; that he stopped for "safety reasons;" that he was "fatigued tired and sleepy, " and that he "could not stay awake." He also stated that this is exactly what happened in 1996 to him, when he was terminated, previously. (JX 6 pp. 15-16) Mr. Bettner's problem was not his fatigue and stopping, it was his timely reporting.
The above Qualcoms were verified in his testimony. (T 140-144) With regard to the Fogelsville trip, where Mr. Lape told him not to wait until he was loaded to tell him he could not make the delivery because he did not have the hours. At the time he received the dispatch, he did not know he would have to wait for the driver in London, or how long it would take him to get there. (T 143.)
With reference to the September 2nd/3rd load, and its log entries from London, Ohio to Foglesville, Pennsylvania, (CX1 p. 16-17) he did not recall whether it had a delivery time on it, but he did accept the load, and felt it was a legal load at the time of the dispatch. (T 225-226) The log, however, shows him from 8:00 a.m. to 3:30 p.m., "on duty, not driving," since Daymark wanted him to get a piece count on the load that he had dropped-off in Columbus, Ohio, and the 7 hours would go against the 15 hour rule. Therefore, he could only either drive 7 hours, or be "on duty, not driving," without requiring another 8 hour break. (T 226-227)
At this point, after he finished unloading in Columbus at 3:30 p.m., when asked whether he knew about the London to Foglesville load, he said that he did not. (T 227) However, he was reminded that he knew he was going to London, Ohio to meet another driver to exchange loads; that he arrived in London, Ohio at 4:00; that after a one hour break, and three hours in the sleeper before the other driver showed up, that he went off duty, from 8:00 a.m. until 8:45, then got the load, and after being hooked up and doing the vehicle inspection, at 9:15, he started driving again. Then, at 11:15 p.m., he was tired and went into the sleeper berth. (T 228) When asked whether he had Qualcomed Daymark that he had stopped, he said that he had; that he had stopped for safety reasons. (T 229) In his affidavit, he confirmed he did not tell them he was going to have to stop and sleep, and needed to get his 8 hours in, he stated, "No," that he, "stopped and slept, and ... got up at 4:30 in the morning." (T 229) He also testified that he did not Qualcom to say that the other driver had been 4 hours late, to which counsel objected, but was reminded of his affidavit in which he stated that he had not alerted Daymark , or given a Qualcom, that the driver was three hours late. (T 230)
Mr. Bettner reviewed the logs stating that at 11:15 a.m. he stopped in Old Washington, Ohio; went into the sleeper berth; stayed until 4:15 p.m., and got up to find he was blocked-in. (T 232) He testified that when he stopped for the sleeper, he sent a message, which is different from what he said in his deposition; but that he did send one at 4:45 a.m. after he got up and found that he was "parked-in, and . . . can't go anywhere." (T 233) He admitted that he went in to eat and go to the bathroom; that he was there for 45 minutes; that he could not see his truck, and that the blocking truck could have left within that time. (T 234) He then confirmed that he drove for an hour to Wheeling, West Virginia and stopped for fuel for hour, at which time he was on time. (T 234-235) However, he stopped to eat a donut and make a phone call to Mr. Pierce, which took an hour. (T 236-237) His log shows "two o'clock p.m." and the arrival time is 14:00, but there is a discrepancy of an hour, which he knew about, and did not enter into his rebuttal to the Report. (T 236-237)
With regard to the meeting of October 1, 1998, and the resulting letter of October 6th, Mr. Pierce stated that he flew to Russellville to meet with Mr. Bettner about the matters that were raised by Mr. Bettner, including the delay pay for September 3rd, they reviewed the Qualcom regarding being blocked-in, and the Unsatisfactory Performance Report (JX 5) related to it that had not been seen by him until that day, and was not received by him until October 19th, after the meeting. (He responded to it on October 22nd, stating that he was fatigued due to driving 10 hours the previous day, and other reasons, but there was no other reply from Daymark, other than the October 1st discussion, and the fact that it was left in his file - or added to it, after the meeting.) They reviewed his logs, and showed him where he would have been on time, where there were delays on the telephone, which included talking to Mr. Pierce [for at least 45 minutes of that time.] Mr. Pierce stated that they discussed the fact that he had spent so much time on the telephone either talking with him, or doing other things, that he was an hour late, and he was not worthy of delay pay as per the policy. The issue with respect to this load was whether or not he was going to get delay pay, and the reason for not paying him delay pay was because his being late was his own fault. (T 238) Mr. Pierce testified that Mr. Bettner did not deliver the load on time for reasons that were personal; that they were not because of a professional interference, and they were within his control. He denied that Mr. Bettner told him that he was late because he was fatigued. (T 340-341)
Mr. Pierce confirmed that Mr. Bettner's adjusting of the axles that took place in London, Ohio, was not unusual, and that it takes place every day. (T 385) Otherwise, Mr. Bettner did not complain to Mr. Pierce about having services available to him, and there is no other evidence that he had such an axle problem, which Mr. Pierce is, therefore, inclined not to believe, (T 389-390) apparently, because of that fact; the lack of evidence in the form of log notations, calls, etc. On redirect, Mr. Pierce directly tied Mr. Bettner's failure to report such a problem, and testified that, "on top of that, we researched that trailer afterwards to see if the next driver had problems with it, and they did not." (T 395-396)
Concerning the September 3rd load going to Foglesville, Pennsylvania, Mr. Singleton stated that it was also due to poor management of time in that Mr. Bettner chose to get probably more time in the sleeper berth or more off-duty time than was necessary, and he didn't split it out like he could have to get sleeper berth split time. He testified that Mr. Bettner certainly could have arrived in plenty of time that way. (T 408)
Mr. Singleton was aware that Mr. Bettner also claimed to have been blocked-in at a truck stop. He testified that the appropriate thing would be to find out why they are blocked in, find the driver, and ask him to move. Its either that, or park in a way that the driver will not be blocked-in. (T 408-409)
He confirmed that, otherwise, if Mr. Bettner felt that it was not safe for him to drive, he should have stopped there; and it was okay for him to take a meal break, and a break to relieve himself later that day. (T 427; CX 1, pp. 16-17)
In the end run, the late delivery may be solely attributable to the fact that he talked to Mr. Pierce, for without it, he would not have been late. In fact, he was told to call Mr. Pierce. (T 239) While I doubt (without deciding) that Mr. Bettner would have been entitled to delay pay for that trip, even under a grievance procedure of a collective bargaining agreement, I am really uncomfortable with this report, or "warning notice," as it was called. (T 338) The fact that the delay was, in part, due to Mr. Bettner's being on the phone with Mr. Pierce, discussing some items that may have been, at least in part, arguably protected matters, perceptibly colors the reasons for the delay, and should have been taken into consideration by Mr. Pierce in leaving the warning in effect, which he appears to have done. While Mr. Pierce states that they did not discuss Mr. Bettner's fatigue or sleepiness in the October 1st meeting, there is no response denial or evidence that it was not discussed in the 45 minute conversation with him on September 3rd. There is no evidence that Mr. Pierce told Mr. Bettner on September 3rd, that the conversation that he was having with him, would be counted in any delay that might have resulted in the late delivery of that particular trip, or that the warning notice was being removed from his files. While they apparently discussed the delay in the October 1st meeting, it was recounted in the October 6th letter, and Mr. Bettner did not see and respond to the report until October 19th and 22nd. If it is determined that Mr. Bettner did not quit; that the perception of it by Daymark was more than just an error in interpreting the "last load" words he used to be such a "quit"; or, it is determined that he was affirmatively discharged , then it must be determined whether he was, in fact, discharged for reasons that may be best summed up by the responses to the seven items in the October 6th letter, and his October 22nd response to this September 3rd delay incident. Such a "warning notice" might, then, be considered to be one of the reasons therefore, and it could result in a finding that the termination was, in part, motivated by a response to protected activity, the allegations of fatigue, etc. of which are spelled out, in the October 22nd response.
This is another circumstance in which the outcome in an arbitration on the dispute would be a toss-up. Facially, Mr. Lape was not getting the timely reports that he wanted. At Mr. Bettner's end, he had some excuses that have some merit. However, this is an employment-at-will environment, with no collective bargaining agreement to test the issues. Recognizing that the STA is, itself, an exception to the employment-at-will doctrine, wrongful actions of an employer must be proven, by a preponderance of the evidence, to have been motivated by STA protected activity. I find that they were not. Once again, the Employer has a logical business position for its determination. Even if wrong, by not considering all of Mr. Bettner's positions the evidence is insufficient to find that the position was in retaliation or motivated by protected STA activity.
The fact that the Employer did not discuss this report until October 1st, nearly a month after the incident raises its own issue, and was compounded by the fact that it was not shown to him until October 22nd, the same day as Mr. Bettner's reply. Had these matters been sprung on Mr. Bettner as a part of a discharge action on October 1st, I would find that there was insufficient notice of these actions, however warranted they might otherwise have been. However, this is not what took place, and there is no collective bargaining agreement notice and grievance procedure governing employer action on them. Instead, Mr. Pierce discussed each one of the seven problem areas with Mr. Bettner on October 1st, and followed this with the October 6th letter. Two problems involved written warnings to which he was permitted to respond, both orally and in writing, and was also specifically warned that further such late deliveries could result in further disciplinary action. (JX 6) From that point on, however, Mr. Bettner was justifiably on notice that he was subject to further disciplinary action, which could include discharge, for delays that were legitimate, discretionary, management concerns, regardless
of difference of opinions about the particulars of them, and provided that employer action on those differences was not motivated by protected activity.
Lumper Charge: (September 15, 1998) Chicago, IL - ( 10/6/98 Ltr. Item # 2):
Mr. Bettner had been accumulating vacation time, and with enough in the fall of 1998 to take some, so he scheduled it for September 15th, and was then asked by Load Planner, Kelly Finney, to delay it. (T 144) He was then scheduled to take a delivery from Souderton, Pennsylvsania to Chicago, Illinois, to Calvetti Meats, on September 15, 1998, and did so. (JX 7; T 145) At Chicago, he hired "lumpers" (people not employed by the company) to unload the trailer. He had hired lumpers in the past, and testified that he asked Daymark to hire them, and sent a Qualcom asking the company to authorize the payment of $225.00. (T 146-148) The Qualcom came back stating that the writer (Roger Cook, the Daymark night dispatcher in Arlington, Texas) could not "do $225.00," and asked if he had made a mistake. (JX 8, p. 1; T 149) In response, Mr. Bettner stated that he "did not." (JX 8, p. 2; T 149) Daymark did not authorize the payment. He also testified that Daymark had never denied payment on a lumper. (T 150)
In total, 28 Qualcoms were exchanged over this matter, with neither positions changing. However, it is clear from reading the Qualcoms, that Mr. Bettner hired the lumpers and paid them before asking permission from Daymark, and that Daymark did not reimburse the $225.00. (JX 8, pp. 1-28 & JX 9; T 151) Eventually, he received $52.00 for unloading that trailer. (T 152) He had spoken with Bud Pierce by phone, who told him that the $225.00 was too high, and he would not approve it, but that he would pay him for the normal wage of someone to unload it. (T 152-153) When asked why he did not seek authorization in advance, he stated that he had always hire the lumper in advance and "then got the PO" (Purchase Order) and had never been turned down. (T 153) In response to a question from the under signed about an inference that, while they would not pay the $225.00 but there was an implication that they might have paid $150.00, and why they did not at least reimburse that much, he did not discuss that approach. (T 154) The dispatchers talked in terms of it being worth $70.00 or $80.00, and one message stated that they might have gone as high as $120.00 if he could have gotten the lumper down to that, but he had already hired and paid him. (T 155)
Mr. Singleton confirmed that there were two lumpers, although he only put down one on the purchase order (PO). (T 243) He denied that just filling out one was to save time, but stated that just filling out one PO happens all the time [without further evidence of this.] He confirmed that it was the highest charge that he had heard requested, and that rather than getting approval, he just hired them, and that he got approval later. (T 244-245)
Mr. Pierce testified that the sum total of their conversation with regard to this subject was that there had to be a reasonable number to come up with; that he showed him the history prior lumper payments, and that Mr. Bettner finally said: "Well, you're right. If it's not in the handbook, I don't want it." Mr. Pierce thought that the issue had been resolved. (T 341-342) Mr. Bettner was paid $52.00 for unloading the load as if he had done it himself, (T 344) which, at the normal rate of 15 cents per hundred weight would have been 35,000 lbs. (350 hundred weight) X .$015 = $52.50. (T 344-345) Mr. Pierce also admitted that there may not be anything in the handbook concerning advance approval for hiring a lumper, so the real reason for the problem was that the fee was too high, and they paid the stipulated loading amount to Mr. Bettner (approximately $52.00, despite having paid $100.00 to $150.00 previously. (T 390-391)
Ms. Baker testified that the reason for the $52.00 payment was that there was no clear understanding of how the lumper issue had went; that he said he hired two lumpers, and there was only a receipt for one, and that it was decided to reimburse him as if he had unloaded the truck, taking the total pounds for the load and paying 15 cents per hundred pound. (T 438)
I asked whether it comes down to there being no other evidence that he hired a lumper, so you didn't believe he hired a lumper, to which Ms. Baker replied that there were two issues. One is the fact that -- there's a purchase order system in place in our company so that there's approval for certain amounts that are not prespecified that particular load, the customer, which was the shipper, had a contract with Daymark that they would pay this certain amount of money per load only if the pounds were excessive or the number of cases was excessive. So the dispatcher only had authorization for what the contract said. If the amount wasn't that, then, there was a requirement to have a purchase order approval for the additional amount, and that didn't happen. The lumper was hired by Mr. Bettner prior to that authorization being given. There was also a question on whether there was one person or two persons, since the receipt actually shows one being paid $225 to unload the truck. Yet Mr. Bettner says that he actually hired two.
I asked Ms. Baker to assume it was one, which he put on the form, and they didn't like the amount, they didn't just pay him $100 or something. She replied that she couldn't answer that, because she didn't make that decision. She knew that part of what they tried to do was to negotiate with the shipper. I stated that, Mr. Pierce's testimony and Joint Exhibit 11, ... (a)lmost all of the disputes boil down to a position that you didn't believe him, that the company didn't believe him. The attorneys disagreed.
Here, Respondents's counsel asked another question that he thought might clarify the matter with respect to this lumper reimbursement, as follows: When asked whether, similar to the situation where Mr. Bettner was overpaid for mile reimbursement, perhaps was there a mistake, and he was underpaid for the lumper reimbursement, $52, Ms. Baker responded, "Perhaps there was." She did not know why, but stated that if she would look at the case right now I will say that we probably should have paid him $70, which was what the customer had agreed to pay.6
At the conclusion of Ms. Baker's testimony, she gave an open admission that Mr. Bettner was probably paid the wrong rate in its reimbursement of $52.00 on the claimed $225.00 lumper fee reimbursement, and that the shipper had agreed to $70.00. Despite the fact that Daymark should have told Mr. Bettner about this, the question remains whether the dispute, at its outset, was one rooted in retaliatory conduct; and, whether, if it was not, whether the erroneous payment rendered it as such? Basically, the answer is: not without substantial evidence that the erroneous payment was separately so motivated. I believe that the Complainant has failed to establish by a preponderance of the evidence that it was. Mr. Bettner was simply wrong when he hired the lumper or lumpers at the rate that he did,
without first obtaining approval from Daymark. He opened himself up for everything that followed - absent evidence that the low payment was motivated by such retaliatory conduct. He either knew, or should have known, that he was hiring lumpers at well above anything that had been approved for him before that time, namely $150.00 at the highest, and $120.00 down to $80.00 below that. He knowingly took a took a risk, and it was not approved. The payment of $52.00 was not particularly fair, and may have even been a wrong calculation, but the evidence fails to establish a retaliatory motive. I would even suggest that the $18.00 difference should be paid to Mr. Bettner, but I have no authority to order such a payment, without the finding of an STA violation.
Again, this lumper reimbursement dispute is more akin to an arbitration issue under a collective bargaining agreement, wherein the exact same factual matters might have been presented to an arbitrator to recover the balance between the $225.00 and the $52.00 he was paid. There is no evidence that this dispute, or the position taken by the company in it, was motivated by an STA protected circumstance. Even in an arbitration, the outcome would have required substantial evidence of past practice, if the contract was silent on reimbursement of lumpers. Here, the conflicting evidence supported Mr. Bettner's claim that he had always been reimbursed for lumper fees, while that of the Employer supported reimbursements of no more than $150.00, with other lesser amounts common. However, there was conflicting evidence regarding a requirement for prior dispatcher approval. Regardless of who was right in the end run, this is a legitimate, discretionary dispute between an employee and an employer that arose in the ordinary course of business, without a collective bargaining agreement and a grievance procedure within which to process the claim. As a self evident business explanation of the event, I am unable to conclude that the evidence of the business reason offered by the Respondent of its origins through the Arlington dispatcher, who initially rejected the request, nor that of Mr. Pierce, in his review of the rejection, constituted evidence of adverse action in response to, or motivated by, Mr. Bettner's alleged protected activity. Frankly, on the basis of his delayed vacation alone, I do not understand why the Employer did not just pay him the difference, but this does not render the conduct - retaliation. However, the fact that Mr. Bettner was reimbursed at $52.00 rather than $70.00, $80.00, $120.00 or $150.00, may even have been unfair, morally wrong, or reimbursable under a collective bargaining agreement (which did not exist), but Complainant has failed to establish that this was anything other than a disputed discretionary business difference, or that it was either false or a pretext for responding to protected activity.
The "other" October 1st Meeting/ October 6th Letter Matters:
Short Runs: (October 6th Ltr. Item # 4)
Returning to the October 1st meeting, and October 6th letter, Mr. Bettner complained that it seemed like he was getting "short runs" in August or September of 1998, with the amount of his pay going down, and stayed that way until his November termination. This was followed by receiving higher pay at CX Roberson, after his termination. Sometimes he got more miles at Roberson, from which he was terminated for refusing to drive an unsafe truck. (T 264-266)
I informed the parties that, unless they could find authority to the contrary, I probably would not find the refusal to drive an unsafe truck to be gross misconduct. (T 267)]
On the "short runs" issue, Mr. Pierce testified that Mr. Bettner stated that he didn't like the under-500-mile short runs because they were not as productive, as a 1,000-mile run. What he actually wanted, what he thought he could produce for them concerned how much productivity they wanted in a day, and related to the fifth issue, where he was objecting driving too many hours during a given day. Yet, he didn't want anything that was under 500 miles. At the end of the discussion, he agreed to be able to run at least 500 miles a day which was one of the objectives in the meeting. (T 348-349)
Ms. Baker also testified that the average miles a Daymark driver drives as of the day of the hearing was between 2,400 and 2,600 miles per week; whereas the average miles in 1998 was 1,400 to 1,500 miles per week. It was then going through, "some rough times," and was hard to get long loads or large mileage loads close together so that drivers were not sitting for long periods of time waiting for dispatches. They also cut back on their fleet at that time. (T 445)
Concerning the trips being "preplanned" in item 6 of the October 6th letter, as Mr. Bettner stated that he felt that they ran their business too tight for him so he wanted the long runs, but he didn't want to be controlled, so to speak, from one load to the next. Mr. Pierce stated that they let him know that when he put in his proposed time available (PTA) they start looking for another load for him to be able to run at that time. He responded that he might not be able to run it at that time, and they replied that he should just let them know when he's ready to run, put his PTA in when you're ready, "because you're right, we don't know your circumstances." (T 349) Returning to the "short runs" issue, he said that he really does not them, and they replied that he could not have it all. Their average dispatch then was 460 or -70 miles, and in order for him to get 2,000 miles a week, that would be loading him five times, which is going to be tough. Their business at that time was, "Very shallow," having dropped from 500 miles an average dispatch to the mid 400's, with some drivers required to wait a couple of days for dispatches for certain locations. (T 349-350)
Mr. Bettner's position on these "short runs" is, at best, contradictory, and of the worst, infringes on legitimate business practices. However, Daymark did agree to try to accommodate him and there is no conclusion that may be drawn from this conversation that it was retaliation against him for alleged protected activity.
Scheduled Loads Too Close together:
The only specific evidence on this point appears in the October 6th letter, which states
Typically we look at our drivers and pre-plan loads. We will respect your wishes and not pr-plan unless you indicate a PTA. Please understand this may reduce your overall monthly mileage as we will not secure your our load without a PTA.
There is no evidence of a violation of the STA in this discussion.
The Way (or Method we calculate Mileage Point to Point: -(October 6th ltr, Item # 7)
With regard to item 7, the calculation of mileage, Mr. Pierce set forth the method to calculate mileage under the Rand McNally, Household Mover's Guide, as company policy, in the October 6th letter. (JX 11, p. 3) Mr. Pierce admitted that he recognizes that utilizing the Guide, results in a lower mileage calculation than actual miles driven. (T 352) The mileage is calculated from Zip code to Zip code, along the shortest possible (or most practical) truck route, there being programs that allow practical versus shortest routes. (T 373) Basically, he agreed, but was stating that this was company policy, and applied equally to all, and would not, or could not be changed for Mr. Bettner. He also agreed that there were trucker complaints on that. (T 374)
Mr. Bettner then asked about the Arlington, Texas run of 1,545 miles, and asked whether it could be run in less than 48 hours without violating hours of service regulations or speed limits, to which he answered, "Sure, " stating that he could drive ten hours; take an eight hour break; then run another seven hours, so as to not break the 15 hour rule, which is 17 hours of driving (6 hours to midnight, plus one hour the next day). (T 375-376) 16 hours of driving X 55 mph = 880 miles in 24 hours, or 1760 miles that he could go in 48 hours. (T 377)
I find that there is no substantial evidence of adverse, discriminatory or retaliatory conduct in the discussion of, and resolution of these issues, within the application and meaning of the STA.
The Post-October 6th Letter, Unlocked Truck Service Fee (October 15, 1998):
Mr. Bettner's testimony over the October 14, 1998, service fee of $127.25 for opening the locked truck with his keys in it, is also recounted in his testimony, as well as in the documentation. (T 156 -163; JX 14) In a rather thorough accounting of the calls by Mr. Bettner to CDI Services, Inc., which performed the service of unlocking the truck, the report simply states that: 10/14/98 the driver called with a problem, "HE LOCKED HIMSELF OUT OF TRK." After calling the customer, Daymark, the service was, "OK'D BY ROGER." After meeting with Mr. Bettner at a Hardees', and taking him to the truck, the report merely advises that at 8:15 , the vendor was called and advised that, "TRUCK IS UNLOCKED." (JX 14)7 Qualcoms beginning at 7:01:43 show Daymark asking if he is on schedule, with the response from Mr. Bettner that he has been, "locked out of the truck since 3AM;" another acknowledging that the dispatcher did not get a message that he had been locked out of the truck; and his last Qualcom that the truck did not unlock, with everything in the truck, including his phones, and that he was locked out from about 3 AM til 8 AM. The last was sent at 8:20:45. (JX 16 pp. 1-5)
In addition to the Qualcoms, Mr. Bettner testified that he did not do anything to cause the door to lock behind him; that this was not the truck that was assigned to him on his return in May, 1998; that it was one that he picked up after his vacation, in Napoleon, Ohio; that he urinated, then came back to the truck, found it locked and tried the other side, which was also locked. (T 158-161) He then went to a convenience store to get Daymark's night dispatch number from his home, and called for service as above described. (T 161) Daymark deducted the charge from his paycheck without telling him in advance that they were going to do so, after discussing it on the phone with Bud Pierce. (T 162) Mr. Bettner informed Mr. Pierce that the lock did not work and that it had malfunctioned. When asked why he did not take the keys with him, Mr. Bettner told him that he had gotten out to urinate, and intended to get right back into the truck, and that, "it didn't work out that way." (T 163)
On the deduction of the $127.25 locksmith charge from his paycheck, Mr. Bettner confirmed that he had signed the authorization to deduct personal advances from his earnings. ( T 245; JX 21) Mr. Bettner differs with Daymark's interpretation of the document, and whether they had authority to deduct it as an advance, when it was his position that it was not an advance. (T 246) Mr. Bettner also contended that he gave a copy of the work order on the malfunctioning door to Jim Lape, but he did not keep a copy of it. (T 248) Reviewing the Qualcom notifying Daymark of his last load due to the deduction, he confirmed that he had talked to Bud Pierce and Jim Lape about it; that he had given them his position on it, and that he knew that they were threatening to deduct it before the Qualcom. (T 250-251)
If the expense was not approved, then I find that Daymark had a reasonable basis for deducting the locksmith service charge from his paycheck, as a personal, expense, based upon the signed document.
With regard to Daymark's policy on leaving keys in the truck, Mr. Pierce basically said to see the company's handbook. (RX 10; T 354) It states:
Equipment assigned to the driver must be secured. You must remove your tractor keys from the ignition and lock all doors. The trailers are equipped with hand locks. (T 355; RX 10, Tab 10, Section 49)
He stated that there were no exceptions to the rule, and that he was not allowed to leave the keys in the ignition while he left it merely to urinate. (T 355)
He also determined that to the best of his understanding, and upon his own investigation of other drivers and maintenance records, the truck door did not malfunction, and had never been repaired in its tenure with the company. (T 355) He testified that the $127.25 was, therefore, deducted from Mr. Bettner's pay as a personal expense under Daymark's Authorization to Deduct Pay form, signed by Mr. Bettner on May 27, 1998. (T 356; JX 21)
I find that Mr. Pierce's testimony is credible on this point, and there is insufficient evidence to find by a preponderance of the evidence that the truck the door or the lock malfunctioned.
Mr. Pierce testified that he also determined that to the best of his understanding, and upon his own investigation of other drivers and maintenance records, the truck door did not malfunction, and had never been repaired in its tenure with the company. (T 355) He testified that the $127.25 was, therefore, deducted from Mr. Bettner's pay as a personal expense under Daymark's Authorization to Deduct Pay form, signed by Mr. Bettner on May 27, 1998. (T 356; JX 21)
I find that Mr. Pierce's testimony is credible on this point, and there is insufficient evidence to find by a preponderance of the evidence that the truck the door or the lock malfunctioned.
Mr. Pierce testified that he still considered the lockout fee reimbursement issue to be an open issue, still pending after the claimant's termination. (T 396)
Mr. Pierce testified that Employer rules require the driver to be responsible for the keys, and that Mr. Bettner did not give an adequate explanation about the malfunctioning of the truck lock. Mr. Bettner's statement about that amounted to unsupported guesswork, and he did not follow the rules about control of his keys. More importantly, the event happened, and the enforcement of the rule as a business explanation for deducting the $127.25 as an expense, was not demonstrated by a preponderance of the evidence to have been an adverse action in response to Mr. Bettner's alleged protected activities. Again, as was the case with the refusal to reimburse the lumper fee, Daymark's explanation was neither incredible, nor was it demonstrated to be a pretext for retaliation for alleged protected activities.
The "Last Load" v. the "Quit":
The final Qualcoms concerning the deduction of the $127.25 from his paycheck as described above, and his notice that, "AT THE PRESENT TIME THIS WILL BE MY LAST LOAD FOR DAYMARK...." were discussed in Mr. Bettner's testimony. (T 163 -164 & JX 17, P. 2) He testified that when he heard of the deduction of the $127.25 out of his paycheck, and "everything that had gone on prior to" it, that it was the "last straw;" and that he, "had to come home .... [and] ... talk to somebody" about it. By all the things that had gone on prior to it, he testified that it meant the short runs, the refusal to pay the lumper fee or the lockout service charge , and the refusal to pay him his medical insurance. (T 164) He stated that it was not his intention to resign his employment with Daymark effective November 13, 1998, and that by the statement "AT THE PRESENT TIME," he meant that he wanted to talk to someone to resolve all of the things discussed above. He confirmed, however, that if he could not resolve them, it was his intention to resign. (T 165) On November 13th, he attempted to talk to Mr. Pierce and that he left a voice mail message about the $127.25 charge, but that he did not tell him that he had resigned. He also confirmed that he was upset when he sent the above Qualcom "last load" message to Daymark. (T 166) He also faxed him a handwritten letter on November 15th, spelling out his position on the truck lock service fee, in response to a message that his wife had received from Mr. Pierce to write up his position on the service fee. . (T 167-168; JX 18) At this point in his testimony he discussed completion of delivery of the load to Blufton on November 16th; the issue concerning the "overage" and his discussion with Mr. Pierce about it; its acceptance at Hershey, and his "deadhead" back to Rochelle, Illinois. There were other conversations and Qualcoms about completion of the load. Mr. Pierce had not seen his letter when he talked to him. (T 169-170) After Mr. Bettner received a message from Mr. Lape he did tell him: "DON'T YOU THINK YOU'RE JUMPING THE GUN?" with regard to the November 13th Qualcom . (T 171) When he got to Rochelle, he was again told to clean out his truck; which, to him, meant that he was "fired." (T 172) When he got to Rochelle, he was again told to clean out his truck; which, to him meant he was "fired." (T 172)
Following his termination from Daymark, Mr. Bettner sought employment at other trucking companies, and was finally hired at (CX Roberson), which generated a requested telephone conversation with Mr. Pierce on or about November 30, 1998. (T 173) Mr. Pierce told Mr. Bettner that they were releasing no information about him until he turned in his keys to the truck (which he admittedly had forgotten to return, and agreed to have his wife do so) and asked him what he wanted Daymark to say about his referral. (T 174-175) He initially testified that he, "didn't care what they put down." (T 175)8 (He later acknowledged that he said that Mr. Pierce could put down that he had "quit." (T 252 )
With regard to actually saying that he "quit" in the Qualcom, Mr. Bettner contends that he did not say he "quit," and that it was not what he meant. (T 252) He also confirmed the following exchange at his deposition:
Q Page 37. "Answer: All Bud Pierce had to do was put the $127.25, a Comm Check, and send it to me, and it wouldn't be my last load.""Question: If he didn't do that, what did it mean then? If he didn't put the $127 back into your account, what does it mean then? It was your last load?"
"Answer: It means I would quit."
"Question: Okay. And Bud Pierce never put the $127 back in?"
"Answer: No, he didn't." (T 253)
In addition, he confirmed that the Qualcom was sent from one of the Hershey warehouses in Mechanicsville, Pennsylvania, in the Harrisburg area; that it was 750 to 800 miles from Rochelle, Illinois, a two day trip; that he was loading at the time, that he delivered the load on the 16th. (T 254) At this point, Mr. Bettner was asked about having been told to clean out his truck, and was questioned about having been told to clean out his truck for use by another driver when he was leaving for vacation. (T 255) It turned out that the driver assigned to it used it permanently, thereafter. (T 256)
Mr. Bettner verified that after the "last load" Qualcom, Jim Lape replied that, "your resignation has been accepted or something on that order," which put an end to that Qualcom exchange. (T 257) After that, he had discussions about the detention pay and the lockout service charge with Mr. Pierce. (T 258) The accepted resignation Qualcom was received on the 16th, when he had unloaded, and was deadheading back to Rochelle. When asked why he never rescinded his resignation, Mr. Bettner replied: "Why would I? I didn't resign." (T 258)
It is my opinion that the question should have been why he did not contest the acceptance of it? Perhaps the answer is: He did, when he asked whether the acceptance of it was "a bit premature." However, that answer was ambiguous, and he did not argue that he had not quit, either in his conversation with Mr. Pierce of November 16th, or in any immediate response to him from his letter of November 23rd, or thereafter, until the charges were filed. Mr. Bettner argues, instead, that they were still working on the $127.25 locksmith charge, so that held the matter of
quitting or not, open for discussion. It is my determination, that this was not a reasonable position to adopt. It could not go on forever, even if management had agreed to hold his job open for awhile, pending resolution of the matter - which it did not.
Regarding the February 7, 1999 letter to Mr. Connors regarding charges against Daymark, Mr. Bettner stated that it does not say that he was fired (T 260) [It does refer to the two disciplinary actions, and the "constructive process to get me to quit Daymark." (T 260)]
Again referring to the post termination by Daymark, and application for work at CX Roberson, Mr. Pierce had been called for a reference by Roberson, and called Mr. Bettner. (T 269) When finally told that Daymark might have had a tape of the conversation, Mr. Bettner admitted that he "could have told" Mr. Pierce to just tell them that he had "quit." (T 270)
Aside from the above issues, although Mr. Pierce had the authority to fire Mr. Bettner, he denied that he fired him. (T 356) Mr. Lape could have recommended that he be fired the same as any other driver, [which he did not testify that he did or did not do] but that it was Mr. Lape that told Mr. Pierce that Mr. Bettner was quitting. (T 357) He then told Mr. Pierce that he would send him Mr. Bettner's Qualcom in which he said, "this is his last load for Daymark." (T 358) He talked to Mr. Bettner on Monday, November 16th, about a load issue. (T 359) Mr. Pierce then said to him: "Listen, I understand you're leaving us;" to which Mr. Bettner responded that he did not have time to talk to him about it. (T 360)
At that point, Mr. Bettner was provided an opportunity to clarify or deny his position, and this time, the failure was fatal to his case.
Finally, Mr. Pierce wrote a letter of November 23rd (RX 5) because Mr. Bettner did not call him back, and he did not talk to him until after that. He did talk to Mrs. Bettner, "a lot;" and in one call she told him that he, "was leaving the company." When asked what it was about, she said that he, "ought to take that up with Bill." (Ibid.) Mr. Pierce said that he told Mrs. Bettner, "let's investigate this thing. Why don't you have him get in touch with me?" He did so on the 16th over the cargo claim. He never told him that he had not resigned, or that he wanted to remain with the company. (T 361) Mr. Bettner completed the last load, and never told him he was fired, or that he wanted to come back to work. (T 362)
In the letter of November 23rd, Mr. Pierce recounted last speaking with him on the 16th; that when Mr. Pierce raised the door lock issue, Mr. Bettner said that he would call him back to discuss it, and that he did not do so. (RX 5) After discussing the status of the issue on his wife's health claim, and documents that needed to be signed, he stated in the letter:
Finally, this will confirm receipt of your Qualcom message of November 13, 1998 wherein you resigned your employment with Daymark. (RX 5)
He referenced the reason as being the deduction from his pay of the $127.25 service charge to unlock his truck after he locked the keys in it, and noted the appeal of that deduction, and attempts to contact him about that, through his wife. As of then he had not heard back from him, and advised him again that he considered the resignation to be effective on November 13, 1998. (RX 5)
At some point in her conversations with Mr. Pierce, which would have had to have taken place after November 23rd, Mrs Bettner told him that Mr. Bettner already had another job at Roberson, and Mr. Pierce acknowledged talking to someone there about a reference. Mr. Bettner had provided employment dates, but they asked for an explanation, so he told them that he wanted to talk to Mr. Bettner first. (T 363) This resulted in a taped telephone conversation with Mr. Bettner when he called and asked why he was not giving out his references to a place he wanted to work. (T 364) He first asked Mr. Bettner about holding some of his property, the keys to the truck, which he agreed to return that night . They agreed on using the exact dates, and when he asked him, what he should tell them about his employment, he said, "Tell them I quit." (T 365) The tape was played, and it was an accurate recording of what was described by Mr. Pierce. (T 365-366) I do not believe that this was an admission of "quit," but was merely a normal consultation in which most employees would rather have a "quit" than a discharge showing on their record.
On cross examination, Mr. Pierce agreed that it was better to have a resignation on his record than a firing; that he had to straighten out the dates with the fact that there was interim employment in the 1996 to 1998 time period. (T 367) He also agreed that when Mr. Bettner called-in, on November 16th, he was fulfilling a duty; that he did not say words of "quit" to him; (T 368) and that it was Jim Lape who had construed the "last load" words of the November 13th Qualcom to be a resignation. (T 369) Mr. Pierce testified that when he received it on November 13th, 14th or 15th, he was satisfied that he was quitting; and that his wife had said that he was. (Ibid.) When he spoke to Mr. Bettner on the 16th, he had not received Mr. Bettner's letter of November 15th about the $127.25 deduction. (T 370) Mr. Pierce denied that the $127.25 issue was not settled, and would admit only to the fact that it was being appealed by Mr. Bettner. He reluctantly agreed, however, that if Mr. Bettner showed him something different they would look at that. (T 371-373)
Aside from the Hershey cargo issue of Mr. Bettner's last load of November 16, 1998, Mr. Pierce's letter of November 23, 1998 basically recounts all that was discussed with Mr. Bettner on November 16, 1998. (T 394) In terms of discussions about leaving the company in that discussion, Mr. Pierce stated that it was, "my olive branch to him to continue communication with me." (T 395)
I find that Mr. Pierce was a credible witness on the question of his interpretation of the "quit" issue; that he continued to play-out the locksmith service fee in a way that could have led Mr. Bettner to conclude that that issue could be resolved, and that there might be some continued prospect for employment, as of the November 16th call. However, by November 23rd, he was justified in concluding that Mr. Bettner had left the employment of Daymark, and not because he was" fired " in the technical or punitive sense, but because the service charge had not been resolved.
As stated above, it is my opinion that this "last load" statement is not determinative of what actually happened. It is my opinion that Mr. Bettner did not originally quit; that the company was in error on this point, but that Mr. Bettner still has problems in proving that the resulting termination was motivated by his alleged protected activity.
It is my opinion, based upon all of the evidence with regard to the November 13, 1998 Qualcom message that Mr. Bettner neither intended to quit his employment on that date, nor did he do so. The Qualcom was ambiguous, and Mr. Bettner did present evidence that supported his view that he wanted to, and did, talk about the matters raised with Daymark officials. There is ample authority concerning resignations in the heat of anger, and of language that sounds like a quit but was not intended to be so, to support this determination. While, the hasty acceptance of such a "resignation" may be found to have been for retaliatory reasons, when the necessary link has been established, the problem with Mr. Bettner's case is that for reasons that have been discussed herein, Mr. Bettner has failed to establish that the hasty acceptance of his resignation was for protected reasons. In other words, I find that Daymark was both hasty and wrong in the acceptance of the Qualcom as a present resignation, and that it, thereby placed itself in a precarious position in evaluating whether it had violated the Surface Transportation Act. However, as I have otherwise found herein, neither the health insurance issue, nor the failure to reimburse either the lumper fee or the door lock service fee, were demonstrated to be acts of retaliatory conduct by a preponderance of the evidence. Neither were the Unsatisfactory Performance Reports for late deliveries, which I have found to have been within the discretion of Daymark's management although belated in their issuance. For those reasons, and the fact that I am unable to find any other facts supporting Mr. Bettner's position, by a preponderance of the evidence, I must determine that the Employer's hasty and erroneous acceptance of the November 13th Qualcom as a resignation or quit was not an adverse action taken in response to Mr. Bettner's protected activity, nor was its final recognition of the action as a termination.
The Surface Transportation Assistance Act ("STA" or the "Act," herein), 49 U.S.C. §§ 31105(a), often referred to as Section 405 of the Act, prohibits discharging an employee because
(A) the employee ... has filed a complaint or begun a proceeding related to a violation of a commercial motor vehicle safety regulation, standard, or order, . . . or(B) the employee refuses to operate a vehicle because
(i) the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety or health; or(ii) the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle's unsafe condition.
These activities, which are referred to as "protected activities," are the only activities for which redress is available under the Act. Different wrongful activities by an employer may be redressed under different statutes, but those statutes are not at issue in this proceeding.9
Generally, in order for a claim under the Act to proceed, a complainant must first make out a prima facie case showing that the employer and employee are covered under the Act, that the employee engaged in a protected activity under the Act, and that the employee was terminated or otherwise discriminated against as a result of this protected activity. Mace v. Ona Delivery Systems, Inc., 9 1 STA-10 @ 3 (Sec'y Jan. 27, 1992).10 Normally, the Respondent then has the opportunity to rebut the prima facie case by showing it had a non-discriminatory reason for disciplining the Complainant. Green v. Creech Brothers Trucking, 92-STA-4 @ 7 (Secy Dec. 9, 1992) remanded on other grounds (Sec'y Dec. 7, 1993). However, where the employer asserts a non-discriminatory reason for discharge during its case, the prima facie step can be skipped, and I may proceed directly to the next step: deciding whether the employer's reason is pretextual. Olson v. Missoula Ready Mix, 95-STA-21 (Sec'y Mar. 15, 1996); Pittman v. Goggin Truck Line, Inc., 96-STA-25 @ n.2 (ARB Sept. 23, 1997) (citing Carroll v. Bechtel Power Corp., 9 1 -ERA-46 (Sec'y Feb. 15, 1995), affd sub nom, Carroll v. U. S. Dept. of Labor, 7 8 F. 3 d 3 5 2, 3 5 6 (8th Cir. 1996)). See also, Scott v. Roadway Express, Inc., ARB No. 99-013, ALJ No. 1998-STA-8 (ARB July 28, 1999), for a general overview of the standards and burdens for claims arising under Section 405 of the Act. In addition, in Pike v. Public Storage Companies, Inc., ARB No. 99-072, ALJ No. 1998-STA-35 (ARB Aug. 10, 1999), the ARB adopted the ALJ's recommended decision, but noted in regard to the ALJ's analysis of a prima facie case: "In a case fully tried on the merits, ... [i]t is not particularly useful to analyze whether the Complainant established a prima facie case. ... Rather, the relevant inquiry is whether [the Complainant] established, by a preponderance of the evidence, that the reason for his discharge was his protected safety complaints." This is similar to the analyses of the whistleblower environmental cases, which have adopted the United States Supreme Court's required analysis of the shifting burdens in discrimination cases as set forth in St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742 (1993) 11
Initially, I find that there is no dispute that the Respondent is covered by the Act. Daymark does not dispute that it is covered by the Act. See 49 U. S. C. § § 3 110 1. Nor do I find that there is a question of whether Mr. Bettner engaged in "protected activity" in filing his initial charges, or whether Daymark took "adverse actions" against him in the form of unsatisfactory performance reports, delayed payment of health benefits and precipitously accepting his purported resignation, and then not rehiring him. I do find, however, that the parties differ about what qualifies as "protected activity" under the Act, and whether the adverse actions were motivated by his protected activity. Some activities Mr. Bettner assumes are protected are not, while some activities Daymark presumes are not, are protected. Mr. Bettner may have had a protected right to stop when he was sleepy or fatigued, but he did not have a right to do so without keeping his dispatcher so informed in a timely manner, and giving the dispatcher an opportunity to either engage the services of another driver; or to change the delivery schedule.
Since I also find that Mr. Bettner did not "quit," i.e., that he did not voluntarily resign his employment at Daymark on November 13 , 1998, the question remains, however, whether, in accepting initially Mr. Bettner's involuntary action and treating him as though he had quit, or by his own later conduct, Mr. Bettner did effectuate a quit, or in Respondent's refusing to either reinstate him, or refusing to accept his application for re-employment, Daymark either accepted his resignation or impliedly discharged him in retaliation for his protected activity, in violation of the Act. The latter assumes that Daymark had an obligation to reinstate him; that the refusal to do so constituted an "adverse action" under the Act; that it was motivated by his protected activity, and that it was prohibited by the Act, as a pretext for taking an adverse action against him. For the reasons stated herein, I find, as a matter of fact and law, that Daymark has not engaged in an adverse action against Mr.
Bettner in erroneously accepting his resignation in response to any protected activity; and that in refusing to rehire him or continue his employment, Respondent has articulated a legitimate business reason for its action, and therefore, it has not violated the Act.
The Secretary has recognized a clear distinction between the concept of a "constructive discharge and a termination where the complainant was not "formally" discharged , the issue being whether the complainant was "forced to resign" or whether he "quit voluntarily." Nathaniel v. Westinghouse Hanaford Company, 91-SWD-2, pp. 8-9, 1995 WL 848011 (DOL Off. Adm. APP., Feb. 1, 1995) In the former, constructive discharge, the Complainant must establish that working conditions were rendered so difficult, unpleasant, unattractive, or unsafe that a reasonable person would have felt compelled to resign." By the Complainant's own position as stated at the hearing, I find that such conditions were not established here. (Ibid.) There was no "constructive" discharge. In addition, there were no words of discharge; that is, no Daymark official told Mr. Becker that he was discharged. (He was informed, however precipitously, that his resignation had been accepted.) In the present instance, for reasons otherwise stated herein, I have found that the "last load" message was not a resignation and that the Respondent was simply "wrong" about it. However, I have also found that it was not "wrong" for a protected reason, so subsequent developments rendering. The action of a termination was likewise not wrong. The preponderance of the evidence does not support a violation, neither formed a resignation and discharge. I have been continuously curious, however, why Mr. Bettner did not immediately contest this acceptance. Basically, I also believe that he acquiesced in the acceptance, and thus rendered further protest meaningless, unless he could establish a protected reason for accepting it, beyond any legitimately articulated business reason. This leaves, for purposes of this case, only one possible position, which I reject: that there was an "implied" discharge for a protected reason, for which neither authority, nor sufficient facts, are presented. As an additional consideration, if some form of discrimination may otherwise be established, Nathaniel makes it clear that in a "voluntary quit" situation, "[u]nless constructively discharged, a complainant is not eligible for post-resignation damages and back pay or for reinstatement." (Ibid.)
Mr. Bettner's complaints to Daymark management about its trip scheduling and planning were such that those factors were causing him to be tired or "fatigued," within the meaning of the Act, and, therefore, qualifies as protected activity to the extent that the safety of the vehicle was affected. Complaints do not have to be made to an outside agency in order to be protected. Internal safety complaints also qualify. Pittman v. Goggin Truck Line, Inc., 96STA-25 @ 2 (ARB Sept. 23, 1997); Davis v. H.R. Hill, Inc., 86-STA-18 @ (Sec'y Mar. 19,1987). Mr. Bettner's complaint is similar to that found in Pittman, where the Complainant, a truck driver, after driving the truck, complained to members of management that he was tired (fatigued) due to its planning and scheduling. (Id.) Mr. Bettner complained to a member of Daymark management that the scheduling and failure to take all matters into consideration, such as delays at consignee locations, made driving his vehicle unsafe, as in Pittman, and contrary to the view of Daymark, would qualify as protected activity.
The comments Mr. Bettner made to management about working more hours than expected and needing more time off in such circumstances, also qualify as protected activity. Federal regulations prohibit operating or requiring or permitting a driver to operate a commercial vehicle "while the driver's ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle. " 49 C.F.R. § § 392.3. Had Mr. Bettner simply refused to operate his vehicle because of his fatigue and so communicated that fact, he would have clearly been engaged in protected activity. Self v. Carolina Freight Carriers Corp., 91-STA-25 @ 3 (Secy Aug. 6, 1992). As noted, the Act also recognizes complaints relating to safety regulations to be protected activity under the Act. 49 U. S. C. § § 3 1105 (a)(1)(A). It is uncontested that Mr. Bettner and Daymark supervisors discussed his position that when his driving time was combined with his "on duty, not driving" time, he may have been working more hours than he expected. As excessive driving or driving while fatigued would constitute a violation of the regulations, I find these complaints are related to safety regulations, and thus constitute "protected activity." However, I also find that, in the present instance, Daymark's complaint about his failure to timely notify Daymark of his sleeper berth stops offset that protected activity, and constitutes a legitimate business explanation for the unsatisfactory performance reports that resulted from some of his delays, and other action that might have flowed there from.
Employer witnesses testified that they did not discharge Mr. Bettner, and there is no testimony by Mr. Bettner that he was told that he was discharged by them. Upon completing the run on November 16, 1998, he contacted Mr. Pierce to talk about a cargo problem on the last load, and declined to even discuss the $127.25 lockout charge for which he had asserted that it was his "last load." He did not talk to Mr. Pierce again until sometime after that, when CX Roberson sought a reference, and then only discussed that he preferred that Mr. Pierce state to prospective employers that he had quit. As noted above, I do not find that this was an admission that he had quit, but merely a preferred recommendation that would not, thereby, adversely affect his prospects for employment.
Regardless of what his own assumption might have been about stating the limitation of his "last load," Qualcom, i.e., that it was contingent upon a final refusal to reimburse him for the $127.25 lockout service charge deduction, it was, at best, merely his gratuitous assumption, that remained controverted, at least since he was notified that it had been accepted. In not acting to correct this view of his actions, it could be construed as neither evidence that he was still employed, as seems to be the position of the Complainant, nor any kind of a withdrawal of his "last load" notice, and his intent to keep working for Daymark if its officials would satisfactorily address his issues. I find that the weight of the evidence favors the latter position: it was initially not an effective quit, and it was a precipitous action on the part of Daymark to have accepted it as such. But that posture on the part of Mr. Bettner could not last forever, and it did not.
However, Mr. Bettner was angry at the failure of Daymark to satisfactorily address the lockout reimbursement issue to that point in time. He stated that this was his "last load" because he was dissatisfied with the answer, and it did not address other issues. His action could, therefore, reasonably be construed to mean that he was intending to quit, in the future, if Daymark did not address the lockout issue. Mr. Bettner's subsequent conversations constituted negotiations to achieve a different result. He was unsuccessful. Management did not agree. Mr. Bettner applied for, discussed, and accepted employment with another trucking company without contesting the question of whether he was still employed at Daymark with Mr. Pierce when he had the golden opportunity to do so. That is what was wrong with this conversation with Mr. Pierce; not whether his negotiation of the wording of the reference to CX Roberson constituted an admission that he had quit. The fact is, after that time, Mr. Pierce had substantial reason to believe that Mr. Bettner was no longer employed at Daymark. The fact that Mr. Bettner failed to raise or discuss his status after having completed his load pursuant to his "last load" declaration may not be projected upon the Respondent as its failure, when at all times it acted consistently in the actions of its officials that they considered Mr. Bettner to have resigned his employment at Daymark - again, however precipitous its response thereto.
In explanation for its refusal to rehire Mr. Bettner, or to continue his employment, Daymark maintains that it had no obligation to rehire him; that its refusal to do so was not as the result of these complaints, but because of the way he continuously acted toward Daymark's employees and members of management when he did so. In so responding, Daymark has offered (articulated) a legitimate business reason for its actions. It's sole obligation in response to Mr. Becker's allegations in this matter, was to "articulate" a non-discriminatory business reason for the refusal to do so. Under the circumstances, it need not have "proven" that this was the reason, Shute v. Silver Eagle Co., 96-STA- 19 @ 2 (ARB June 11, 1997), but it is my opinion that it has done so. It remained Mr. Becker's burden to show that this reason was not credible or that it was pretextual, and that it was for the retaliatory purposes alleged. It is my conclusion that Mr. Becker has failed to offer sufficient credible evidence to the accounts offered by Mr. Pierce and Ms. Baker about this conduct, and by so doing, he basically set himself up for the precipitous acceptance of his "last load" Qualcom. He did so voluntarily, and is saddled with the result.
Laced into the three alleged "illegal load," disputes by Mr. Bettner , discussed in the October 1st meeting (October 6th letter), two resulted in written warnings for "late delivery." The disputes in all three were patently legitimate, discretionary disputes between Mr. Bettner as an employee, and Daymark's management, as representatives of the employer. Mr Bettner first complained of the July 23-24, 1998, assignment from New Kingston, Pennsylvania to Arlington, Texas, a distance of 1,548 (1,545) mile in two days. The assignment was not an illegal one when it was made, and the delay in loading, which might have been a legitimate complaint, was not timely and reasonably communicated to the Employer. Mr. Bettner was, in fact responsible for some of the delays that resulted in his late arrival, deserving of inquiry and explanation. This was a legitimate dispute between an employee and employer over which reasonable minds could differ, rather than part of a pattern of discrimination. There is insufficient evidence to establish that any aspect or effect of this particular inquiry constituted a violation of the Act. The evidence established that it was a legal load, and that no discipline resulted from the alleged late arrival.
The Indianapolis to Chattanooga trip of August 26-17, 1998, is factually, problematic for the Claimant. The overweight ticket was paid out of Mr. Bettner's pocket, because he failed to scale the load before he began his trip, and was a partial cause of a "late delivery," as well as a separate company rule violation, when combined, and other delays. More importantly, following one notice that he was stopping because he was tired, or "fatigued," his delivery time was rescheduled to 1500 (3:00 CDT), but he did not arrive until 6:00 p.m (1800) CDT, and did not report that until much later than that. The fact is that Mr. Bettner was several hours late for this delivery, not all of which is adequately beyond the initial stop for being tired or "fatigued." This constitutes the substance of Daymark's reasonable business explanation for this action. There were no rule violations in getting there, (Mr. Bettner met the 70- hour rule, despite his protestations to the contrary, and the 8 hour rule.) and Daymark had a reasonable basis for issuing a written warning on the late delivery without a complete and adequate explanation of why that had taken place, when he failed to inform Daymark that he was not going to be on time because he was too tired, and took another 2 hour nap. At the most, when told of the new 9:30 arrival time, he stated that it was, "too far," not that he was stopping because he was either "fatigued," or too "tired." In addition he did not inform Daymark of his actual delivery time at 6:00 p.m. until later in the evening (9:21 p.m.).
The length of time that it took for Daymark to inform Mr. Bettner that a written notice was being issued for the "late delivery," was questionable, and might have given Daymark a problem in another forum such as an arbitration, if there was such a provision in a collective bargaining agreement. However, I find that the preponderance of evidence, even if such an inference was possible here, the present setting does not support such an inference, or a conclusion that the reason for the warning notice, or its delay, was prompted by STA protected activity. Neither did it support a violation of the Act, either in accepting Mr. Bettner's resignation, or in it's conclusion that he had finally resigned or had otherwise been terminated.
Similarly, the "late delivery" written warning in relation to the Foglesville, Pennsylvania trip on September 3, 1998, was fraught with problems, and either mis-communications or none at all, when accurate ones were required. On this trip, Mr. Bettner states that he had problems with his axles, and that he had been "blocked-in." at a rest stop, while sleeping. In addition, Mr. Bettner stopped for 45 minutes to call Mr. Pierce on the phone over a number of matters, including his health insurance problem. The company also questioned the allocation of his time, to be able to deliver the load in a timely manner. Mr. Bettner arrived approximately one hour late for his "delivery time," and this resulted in the October 1st discussion, and a second written warning.
Mr. Bettner failed to note the axle problem in the log book, and records failed to note a problem with them. Consequently, I find that this constituted part of the reason for issuing him a warning notice for "late delivery" on the trip.
Mr. Bettner was technically "late" for his delivery, but I question whether issuing a warning notice just for that fact alone, was warranted. This is particularly so when it is considered that a good part of that hour may also be attributed to the conversation with Mr. Pierce. However, there is a neutralizing effect, here. Neither of them brought up the fact that a delivery time was being jeopardized by the conversation, and Mr. Pierce was not the person doing the dispatching who would have to know about such things to make an adjustment. Once again, the fact that Daymark may have possibly been wrong for so acting in issuing the warning, does not establish
an STA violation, and Mr. Bettner has, again, failed to establish by a preponderance of the evidence that the action was motivated by protected activity. That Mr. Bettner may have stopped because he was fatigued or tireded, in and of itself, is insufficient to establish such a violation. The fact is that he failed to give the appropriate notice that this was the reason that he was taking his truck out of service, to allow for alternative arrangements, or that such a reason was the motivating factor for the warning notice. To the extent that such an inferrence could be made in this circumstatce, I find that it was not established by a preponderance of the evidence, and that no violation of the Act has been established by it.
The "lumper" charge reimbursement of $225.00 paid by him on the trip to Chicago was justifiably denied by Daymark based upon Mr. Bettner's failure to secure advance approval of such an unprecedented, high payment, alone. Insufficient evidence has been presented that the denial had its roots in protected activity under the STA. Neither was there any such evidence in the discussion of "short loads," scheduled loads too close together, or in the use of the Rand-McNally, Household Movers Guide as a policy for setting payment of mileage for trips to and from various cities.
It is my determination that the belated payment of health insurance benefits, and out-of-pocket payments of medical coverage, as part of the "make-whole" remedy in the settlement of the first charge, despite the understandable circumstance of the change in insurance carriers, was a technical, or de minimus violation of the Act. As was discussed in the section on findings of fact, it related solely to resolution of the first charge, and the delays were unrelated to any of the alleged protected activity of the present charge. Daymark could have, and should have, made a calculation, and directly paid Mr. Bettner for at least some, if not all, of the money owed to him, due to the illness of Mrs. Bettner. Indeed, one may only speculate on the relationship of this failure in the mind of Mr. Bettner, or anyone else similarly situated, to the perceptions gleaned therefrom, to other matters of difference that arose in this context, however justified or unjustified. Since the parties agree that Mr. Bettner did receive all of his compensation in settlement of that charge, at least by the time of its payment to Mr. Bettner in December of 1998, that there is no other practical remedy warranted for this violation, so none has been ordered.
In summary, the protected activity at issue in this case involves the internal complaints about being tired from poor scheduling and trip planning by management. The alleged "adverse action" for that protected activity, however, is an alleged discharge, which I find did not take place. Linked to this position of the Complainant, is the alleged failure Daymark to either continue Mr. Becker's employment there, after it had precipitously accepted his "last load" Qualcom as a resignation, or to offer to rehire him - neither of which it had any obligation to do under the circumstances of this case. As stated above, it is my conclusion that having failed to contest Daymark's position that he had resigned, having acted consistently with that position, while Mr. Becker did not act consistently with his contention that his "last load" Qualcom was merely an attempt to negotiate reimbursement of the lockout service charge, he then confirmed Daymark's position that he was voluntarily quitting his employment at Daymark, as a matter of fact, effective, at the very least, in his next conversation with Mr. Pierce.
As a consequence, I find that Mr. Becker has not proven that he was discharged for engaging in protected activity, and therefore that he is not entitled to the whistleblower relief set forth in the Act. His claim must therefore be denied.
Therefore, for the above stated reasons, it is recommended that the following order be adopted:
If such is deemed appropriate, a petition for attorney's fees, together with a memorandum in support, must be filed within 15 days of the receipt of this recommended decision and order.
IT IS ORDERED that, insofar as the complaint of William J. Bettner alleges, and I find, that the failure of Respondent, Daymark, Inc. to immediately pay health insurance and medical benefit payments due under the prior settlement agreement between the parties, constitutes a violation of 29 U.S.C. § 31105(a)(1), Section 405(a)(1)(a) of the Surface Transportation Act; and that the full payment of those health insurance benefits and medical payments in December of 1998 constitutes a full, complete and adequate remedy for that violation, that no further remedy is ordered; and
IT IS FURTHER ORDERED that, in all other respects, the complaint of William J. Bettner alleging other violations of 29 U.S.C. § 31105(a)(1), Section 405(a)(1)(a) and (b) of the Surface Transportation Assistance Act, is DISMISSED.
THOMAS F. PHALEN, JR.
Administrative Law Judge
This Recommended Decision and Order and the administrative file in this matter will be forwarded for review by the Administrative Review Board, U. S. Department of Labor, Room S4309, Frances Perkins Building, 200 Constitution Avenue, N. W., Washington, D. C. 20210. See 29 C.F.R. §§ 1978.109(a); 61 Fed. Reg. 19978 (1996).
1References to ALJX, JX, CX, and RX refer to exhibits of the administrative law judge, joint exhibits, and those of Complainant, and Respondent, respectively. The transcript of the hearing is cited as "T", followed by the page number.
2After a description of his logs, portions of which appear as Claimant's Exhibit 1, (T 48-57) he also described the "canned" messages of the "Qualcom" satellite communications system between Daymark and the trucks, and explained what a "preplan" was. (T 57-58) His practice with regard to committing to a load was that, when they would send him the load he would acknowledge the load assignment. (T 59)
3I take administrative notice that the correct name of this company is "CX Roberson," not "CX Robarson," as set forth in the transcript.
4With regard to Mr. Bettner's anger, I advised Respondent's counsel that I understood when a person who is supposed to be reinstated and made whole, and was not being able to get your health benefits in line, you would be quite angry, and that I would take it in a different vein than I would take the ordinary circumstance. (T 325-326)
5"Gross weight" refers to the overall weight of the load, 80,000 lbs. The legal weight on axles on tandem loads is 34,000 lbs., for each axle. T 83 ) He was overweight on the trailer axles, and the adjustment caused him to be delayed for his arrival in Indianapolis, arriving at 11:00 p.m. on August 26, 1998. (T 84)
6Ms. Baker also confirmed that, the $52.00 was taxable pay rather than reimbursement of an expense, (T 450), [which further reduced the amount of his reimbursement, which, while it might be reimbursed, but is not within my power to order, depending on how the Internal Revenue Service would view a proposed set-off against the actual expense. .]
7Nothing is stated in the report that there was anything wrong with the truck, the lock, or the truck lock mechanism, for which a charge certainly would have been made to overcome or repair.
8Mr. Bettner then discussed his interim earnings and loss of earnings, through the date of the hearing, in comparison with his mileage payments at Daymark, and his premiums paid to continue health benefits under various circumstances, which will not be discussed in detail here. (T 175-180; CX 8-15) See also, the testimony and exhibits concerning continued health benefit coverage. (T 184-189; CX 16-18)
9For instance, attempts by Mr. Bettner to get Daymark to change its policies on going to the sleeper berth when fatigued or sleepy may have invoked the protective provisions of Section 8(a) (1) of the National Labor Relations Act, as amended, 29 U.S.C. §158(a)(1) and (3).
10Citations to administrative decisions are citations to the official copies of the decisions found in the Office of Administrative Law Judges on-line law library, which is accessible through the Internet at https:www.oalj.dol.gov/library.htm. Record documents that may be referenced by the undersigned, have been marked as ALJX 1-5.
11 In general, under established case law regarding the protective, environmental "whistleblower" statutes, once having established the employer/employee status, the employee must establish a prima facie case, and under the ERA, that it was a contributing factor to the unfavorable (adverse) personnel action. The Respondent may rebut the Complainant's prima facie by producing evidence that the adverse action was motivated by legitimate, nondiscriminatory reasons. Under the ERA, the Respondent must produce clear and convincing evidence to establish a legitimate, nondiscriminatory reason for its action, while it may merely articulate the legitimate, nondiscriminatory reason under the other six statutes. Complainant, then must counter Respondent's evidence by proving that the legitimate reason proffered by the Respondent is false or a pretext for the prohibited discriminatory reason. See, Yule v. Burns International Security Service, Case No. 93-ERA-12 (Sec'y May 24, 1994)(Slip op. at 7-8). This burden now applies to the seven environmental Acts under the jurisdiction of the Secretary of Labor, including the entire analysis of the burdens of production, proof and shifting obligations in a Title VII, Civil Rights action under 42 U.S.C. Section 2000e cases to the relevant environmental "whistleblower" cases, as established under McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) and Burdine, supra, through St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742 (1993).