DOL Home > OALJ > Whistleblower > Ass't Sec'y & Helgren v. Minnesota Corn Processors, 2000-STA-44 (ALJ Feb. 21, 2001) |
Ass't Sec'y & Helgren v. Minnesota Corn Processors, 2000-STA-44 (ALJ Feb. 21, 2001)
U.S. Department of Labor | Office of Administrative Law Judges 2600 Mt. Ephraim Avenue Camden, NJ 08104 (856) 757-5312 | ![]() |
Issue date: 21Feb2001
CASE NO.: 2000-STA-00044
In the Matter of
ASSISTANT SECRETARY OF LABOR
FOR OCCUPATIONAL SAFETY AND HEALTH
Prosecuting Party
and
KENNETH D. HELGREN
Complainant
v.
MINNESOTA CORN PROCESSORS
Respondent
Appearances:
Kenneth D. Helgren, Puyallup, Washington, pro se
John Groseclose, Esquire (Greene & Lloyd), Puyallup, Washington, for the Complainant1
William W. Kates, Esquire (U.S. Department of Labor, Office of the Solicitor), Seattle, Washington, for the Prosecuting Party
Philip L. Ross, Esquire, Wesley J. Fastiff, Esquire, and David F. Byrnes, Esquire (Littler Mendelson), San Francisco, California, for the Respondent
Before: Daniel F. Sutton
Administrative Law Judge
This case arises from a complaint filed by Kenneth D. Helgren (the "Complainant" or "Helgren") against Minnesota Corn Processors (the "Respondent" or "MCP") alleging employment discrimination in violation of the employee protection provisions of section 405 of the Surface Transportation
Assistance Act of 1982 ("STAA"), 49 U.S.C. §31105,2 and the implementing regulations at 29 C.F.R. Part 1978. Section 405 of the STAA protects an employee from being discharged, disciplined or discriminated against because the employee has engaged in certain activities pertaining to commercial motor vehicle safety and health. The case is before me on MCP's objections to the findings and preliminary order issued by the Assistant Secretary of Labor for Occupational Safety and Health (the "Assistant Secretary" or "OSHA") after investigation of Helgren's complaint. 49 U.S.C. §31105(b)(2)(A), 29 C.F.R. §1978.105.
Helgren filed his complaint with OSHA on March 1, 2000, alleging that MCP had violated section 405 of the STAA on February 18, 2000 by suspending him for refusing to drive an unsafe truck. ALJX 4.3 After an investigation, the Regional Administrator for OSHA Region X issued a Secretary's Findings and Preliminary Order on May 25, 2000. ALJX 1. Based on information gathered during this investigation, the Regional Administrator concluded that Helgren's refusal to drive one of MCP's trucks on February 18, 2000 was protected by section 405 and that MCP's decision to terminate his employment because of this refusal violated the STAA.4 The Regional Administrator's Preliminary Order directed MCP to, inter alia, reinstate Helgren to his former position, compensate him with back pay and expunge any reference to his protected activity and discharge from its records. By letter dated June 9, 2000, MCP filed its objections to the Secretary's Findings and Preliminary Order and requested that the matter be set for a formal hearing. ALJX 6. In a separate letter dated June 9, 2000, MCP notified the OSHA Regional Administrator that it was not prepared to reinstate Helgren as provided in the Preliminary Order based on its contention that the investigation failed to afford it the minimum due process required under the Fifth Amendment to the United States Constitution; specifically, an opportunity to respond to the charges and evidence against it in a meaningful manner. JX 2. The Secretary of Labor responded by filing a complaint for injunctive relief on June 15, 2000 in United States District Court in Tacoma, Washington, seeking to enjoin MCP from failing to temporarily reinstate Helgren. JX 6. Argument was heard on August 14, 2000 by U.S. District Court Judge Robert J. Bryan who made oral findings and denied the Secretary's motions for a temporary restraining order and preliminary injunction. Herman v. Minnesota Corn Processors, Case No. COO-5350RJB (Minute Order August 15, 2000); JX 3. Judge Bryan concluded that OSHA had not provided MCP with relevant supporting evidence before issuing the reinstatement order and thereby did not afford MCP the minimum due process required by the Fifth Amendment and the Supreme Court's decision in Brock v. Roadway Express, Inc., 481 U.S. 252 (1987).5 JX 4 (Transcript of Oral Argument) at 43-35.
Pursuant to notice, a hearing was conducted before me in Tacoma, Washington on August 15-18, and 21, 2000, at which time all parties were afforded an opportunity to present evidence and argument. The Claimant appeared at the hearing, and appearances were made by counsel on behalf of MCP and the Assistant Secretary acting as the prosecuting party pursuant to 29 C.F.R. §1978.107(a). Testimony was elicited at the hearing from the Complainant and four additional witnesses called by the Assistant Secretary (Brian Cook, Billy Wayne Moore, Richard Jensen and Vicky Coleman), and from eight witnesses called by MCP (Robert Goerisch, William Thomas, Roger Evert, Larry S. Blood, Martin Thomas, Kevin Lewis, Brian Gallup, and Jesse Gonzales). Documentary evidence was admitted as ALJX 1-20, JX 1-6, CX 1-7 and RX 1-24.6 At the close of the hearing, the parties waived the time frames set forth in 29 C.F.R. §1978.109(a) for closing the record and issuance of my decision so that they would have an opportunity to submit post-hearing briefs. TR 1327. By agreement of the parties, October 6, 2000 was established as the deadline for submission of post-hearing briefs. Pursuant to a Joint Motion field by the Parties, I extended this deadline to November 6, 2000. The Assistant Secretary and the Respondent both timely submitted post-hearing briefs, and the record was then closed.
At the outset of the hearing, the parties stipulated to the following findings:
JX 1. During the course of the hearing, the parties entered into the following additional stipulations:
TR 977-85. The parties' stipulations are adopted as findings.
A. Background
The Respondent MCP which is sometimes referred to in the record by its former name, Liquid Sugars or LSI, produces and sells corn syrups (liquid product) and granulated sugar (bulk or dry product). MPC operates a distribution facility or terminal located in Puyallup, Washington from which the company's products are distributed to customers in the Pacific Northwest. TR 698-702 (Thomas). Distribution of these products is accomplished by drivers operating trucks with attached trailers. During the time periods involved in this matter, there were five trucks assigned to the Puyallup terminal as well as a sixth truck which was on loan from MCP's Portland, Oregon facility. TR 702-706 (Thomas); RX 5, 6.
MCP's operations at the Puyallup terminal are supervised by a terminal manager who at all times relevant to this proceeding was William "Bill" Thomas. TR 31-32 (Helgren), 699 (Thomas). Thomas, in turn, reports to Kevin Lewis, MCP's area manager in Portland, Oregon. TR 709 (Thomas). The Puyallup terminal also has an assistant terminal manager, Jesse Gonzales, who oversees the dispatch of drivers and who is primarily responsible for scheduling and coordinating with outside mechanics any maintenance and repair work on MCP's vehicles. TR 708-712 (Thomas). In addition to these supervisory functions, Gonzales functions as a truck driver, spending between 50% and 75% of his time making deliveries from the Puyallup terminal. TR 1207 (Gonzales). At all times relevant to this proceeding, MCP employed approximately 13 other individuals at the Puyallup terminal: an office clerical; a plant maintenance worker; five product handlers whose functions include transferring MCP's products from rail cars to storage tanks and loading trailer units for delivery to MCP's customers; and six truck drivers (Kenneth Helgren, Brian Cook, Richard Jensen, Billy Wayne Moore, Shannon Hinkle and Kerry Fagen). Some truck drivers, including the Complainant, were cross-trained as product handlers. TR 716-717 (Thomas).
The Complainant, Kenneth Helgren, has worked as a truck driver since 1990, and he possesses a Class A commercial driver's license with T and X endorsements. TR 26-28 (Helgren). He was hired by Respondent as a truck driver at its Puyallup terminal as a truck driver/product handler in May 1999 and worked for MCP until February 18, 2000 when he was suspended and eventually terminated. TR 25 (Helgren). Helgren's duties at MCP included loading liquid and solid sugar products into a truck, transporting these products to Respondent's customers and unloading the products into the customers' containers. TR 28-30 (Helgren). He generally worked eight hour shifts which started between 3:30 a.m. and 12:00 noon, and he would call the terminal after 5:00 p.m. to learn what his dispatch would be the next day and what time he would be required to report to work. TR 29-32 (Helgren). Although each of the truck drivers was assigned a particular truck, which in Helgren's case was truck 322 ("T322 "), drivers could be assigned to drive any available vehicle on a given day based upon the day's dispatch needs. TR 726-727 (Thomas), 1207-1208 (Gonzales). The Puyallup drivers average between five and ten deliveries per week, some days making no deliveries and as many as three deliveries on other days. TR 726 (Thomas). Helgren's starting wage rate was $13.50 per hour, and he received a raise to $14.50 per hour after he successfully completed his probationary period in August 1999. TR 43-44 (Helgren). At that time, he received a performance appraisal from Thomas who rated him as "exceeds expectations" on four of eight appraisal factors and "meets expectations" on the remaining factors. CX 3.
Around the time that Helgren was hired by MCP, the International Brotherhood of Teamsters began an organizing drive at the Puyallup terminal. Following an election, the Union was certified in August 1999 as the exclusive representative for a bargaining unit which consists of the product handlers, truck drivers and the plant maintenance worker at the Puyallup terminal. TR 45-46 (Helgren), 718-719 (Thomas). Helgren assisted the Union in the organizing activities at the Puyallup terminal and served as a shop steward and contract negotiator while employed by MCP. TR 46-50 (Helgren), 720-721 (Thomas). There were approximately eight bargaining sessions between October 1999 and January 2000, and the negotiations were finally completed in July 2000, after Helgren's termination. TR 719-721 (Thomas).7
The record indicates that the contract negotiations and Helgren's union activities were a source of conflict between Helgren and Gonzales.8 According to Helgren, Gonzales drove a truck into the yard at the Puyallup terminal around 6:00 a.m. on January 10, 2000, while Helgren was conducting a pre-trip inspection on another truck, and asked Helgren why he had not been included in union activities as he felt that he was part of the bargaining unit. Helgren testified that he responded that he had been told at the bargaining table that Gonzales was part of management, and Gonzales then jumped out of his truck, which was still moving, and approached him in a shaking and agitated state. Helgren further testified that he walked away, avoiding further confrontation with Gonzales, and that he told other employees and wrote a letter to the human resources manager at MCP's headquarters in Marshall, Minnesota, Roger Evert, about the incident. TR 51-57; CX 4.9 For his part, Gonzales denied ever threatening Helgren. He testified that he was aware of Helgren's version of the January 10, 2000 incident because he saw a copy of Helgren's letter to Evert and was asked to respond. TR 1283-1284. His written response is generally consistent with Helgren's description of the incident, except that he denied any verbal or physical threats: "Yes, I was upset, but at no time did I verbally or physically threaten Ken. Ken did not back down or back off at any time. The tone of his voice was not much different than mine." RX 24b.10
The record also shows that labor-management tensions at the Puyallup terminal during the period preceding Helgren's termination were not confined to the relationship between Helgren and Gonzales. In this regard, driver Brian Cook testified that Thomas approached him concerning a notice that the drivers had posted on the blackboard outside the office stating that they would not haul overweight loads. According to Cook, Thomas asked if the notice applied to him (Cook) and, when he answered that it did, Thomas stated that if he (Cook) couldn't be flexible, then he (Thomas) could not be flexible either. TR 438. Cook further testified that he had hauled overweight loads (i.e., loads weighing in excess of the legal limit) prior to this conversation with Thomas but not thereafter. TR 439-440.
B. MCP's Vehicle Maintenance and Safety Policies and Practices
MCP's Puyallup terminal has a formal motor vehicle maintenance program which provides two levels of periodic service. An "A" service is performed every 7,500 miles and involves greasing the vehicle and checking and, replenishing as needed, all fluids. TR 738 (Thomas), 1209 (Gonzales). A "B" service is performed every 15,000 miles and includes changing the oil and filters, another greasing and a full inspection of the vehicle, including the suspension and other mechanical components. TR 739 (Thomas), 1209 (Gonzales). As indicated above, these periodic services are scheduled by Gonzales as part of his duties as the assistant terminal manager. TR 1209-1210 (Gonzales). Both the "A" and "B" services are performed at the Puyallup terminal by a contractor, Valley Freightliner, which employs a mobile service mechanic, Brian Gallup. TR 739-741 (Thomas), 1209 (Gonzales). If Gallup is unable to perform a necessary repair, the vehicle is sent to an outside shop. Thomas is responsible as terminal manager for approving or pre-approving any maintenance or repair work that is to be performed on the MCP's vehicles, and he has independent authority to approve all billings up to $500.00 for work on the vehicles. Work costing over $500.00 is submitted as a proposed purchase order to the MCP area manager in Portland, Kevin Lewis. TR 742 (Thomas). Thomas has never refused to approve any maintenance or repair work recommended by a mechanic, and Lewis has not refused to approve any of the proposed purchase orders submitted by Thomas. TR 742-745 (Thomas).
The Puyallup terminal also has a formal employee safety program that begins with safety training as part of every employee's orientation. TR 728-729 (Thomas). Safety is stressed in employee orientation and in the MCP employee handbook. TR 731 (Thomas); CX1 at 40. MCP requires each driver to pass a road test to ensure that he/she can properly operate both the tractors and the different types of trailers used at the facility. MCP also holds safety meetings, lasting from 40 minutes to over an hour, at least twice-monthly for all employees. At these meetings, general safety practices and specific safety issues that have arisen at the facility are discussed, and written minutes of the safety meetings are prepared and posted. TR 736 (Thomas). Additionally, MCP has developed specific written policies and procedures for its truck drivers which emphasize motor vehicle safety and the reporting of safety hazards. TR 730-731 (Thomas); CX 2. Specifically, LSI Transportation Procedure #402, Driver Instructions, in pertinent part states,
4.0 EQUIPMENT 4.1 A written pre-trip inspection must be done daily on each piece of equipment operated. The driver must determine if the equipment is safe before leaving. NO UNSAFE EQUIPMENT IS TO BE OPERATED. (Complete DRIVERS' INSPECTION REPORT, LSI FORM #108.) 4.2 Tires, windshield wipers, tire chains, brakes, air loss. All lights, fuel, oil, water, hydraulic oil, are only some of the things to be checked daily. 4.3 Equipment must be clean (truck & trailer). This is a food grade product, treat it as such. * * * * * 4.6 A post trip inspection is required at the end of trip.
CX 2 at 3 (boldface in original). Pursuant to this instruction, MCP drivers perform both a
pre-trip inspection of the vehicle before making a delivery and a post-trip inspection upon return to the terminal, completing a Driver's Vehicle Inspection Report ( "DVIR") which is required by the federal motor carrier regulations.11 TR 68-70 (Helgren). The pre-trip inspection involves looking over the vehicle and checking tires, lights, oil and fluid levels and the general condition of the vehicle. The post-trip inspection notes any conditions in the equipment the driver experienced while making the delivery. The DVIR form lists a series of tractor and trailer systems followed by several blank lines labeled "Remarks", and the form instructs the driver to "check any defective item and give details under Remarks'". JTX 5; RX 2. Below the "Remarks" section is a space for the driver's signature underneath a statement, which can be checked, that the condition of the vehicle is satisfactory. Below this space is another line for a mechanic's signature underneath two statements, which can also be checked, that the above defects are corrected or that the above defects need not be corrected for safe operation of the vehicle. Finally, there is a place for the driver to sign and date below the mechanic's signature. Id.
Each DVIR form has a white "original" top sheet and a pressure sensitive carbon yellow copy beneath it. Once a driver completes a DVIR, the white "original" sheet is left in a box outside Thomas's office for Gonzales to review. The yellow carbon stays in the truck included as part of a booklet of DVIR forms. TR 748 (Thomas). If a DVIR reports a condition that requires a mechanic's inspection or repair, Gonzales copies the DVIR, highlights the condition, adds any comments of his own that he wishes to bring to Gallup's attention, and then places the DVIR on a clipboard entitled "TRUCK REPAIRED AND TRAILER REPAIRED" that is posted in a hallway outside Thomas's office. TR 1214-1215 (Gonzales); RX 1. Typically, Gallup will review the clipboard, perform whatever maintenance or repair is necessary, put a notation on the DVIR reflecting the work he has done, and return the clipboard to the wall outside of Thomas's office. TR 748-751 (Thomas), 1152 (Gonzales). Once the maintenance or repair work is completed, Gonzales would initial the DVIR. TR 1214-1214, 1296 (Gonzales). Gonzales testified that he places his initials on the DVIR pursuant to DOT regulations. TR 1214.
The drivers, including Helgren, Billy Wayne Moore and Richard Jensen, were aware that the clipboard outside Thomas's office contained DVIRs and that he also understood that drivers could check the clipboard to see what action had been taken with respect to conditions reported on the DVIRs. TR 189-90 (Helgren), 512 (Moore), 536 (Jensen). Helgren further testified that he did not check the clipboard to determine the status of work done by the mechanics regarding T416, but only checked it to determine the status of T322, the truck that was assigned to him. Id.
In addition to reporting problems or concerns on the DVIR forms, it is undisputed that MCP drivers can report serious safety hazards directly to Thomas or Gonzales. TR 512-513 (Moore), 773-774 (Thomas). Each driver has a "Nextel" phone, a combination telephone and walkie-talkie, with them while driving, and the drivers have been instructed that they should use the phone to call Thomas or Gonzales if a condition arises while driving which makes further operation of the vehicle unsafe or impractical. TR 204-205 (Helgren), 747-748 (Thomas).
Three MCP drivers (Helgren, Brian Cook and Billy Wayne Moore) testified that Gonzales had told them that once they noted a problem on one DVIR, they did not need to report the same problem again on subsequent DVIRs. Helgren stated that he initially reported any problems he encountered on the DVIR; however, he was instructed by Gonzales in September or October 1999 that "once a truck is written up you don't have to continually write it up on a daily basis. They are aware of the problem." TR 70-71. Cook testified that he was told early in his employment at MCP that "once you write something up you don't need to worry about it, you know, don't write it up repeatedly, you know." TR 435-436. On cross-examination, Cook was referred to a statement which he had provided to OSHA during the investigation of Helgren's complaint, and he acknowledged stating to OSHA that Gonzales had also provided the following explanation for his instruction regarding the DVIRs: "Jesse said not to do so because he puts the write-ups by the door for Brian Gallup, Freightliner mechanic." TR 487.12 Moore recalled a discussion where Gonzales "said there would be no need for me or any of us I believe we were in a group at the time, to write them up more than once because once he saw it he'd take care of it. Some things would take longer to fix, so if you write it up every day it gets kind of ". TR 504. However, the only instruction Richard Jensen recalled receiving the completion of DVIRs was he had been told to "be a little more explicit at times." TR 551-552. For his part, Gonzales testified that he has never given drivers instructions about what they can or can not put in a DVIR, and he specifically denied ever telling a driver that once they note a condition they can only do so once. TR 1211-1212.
MCP argues that Gonzales should be credited over "Helgren and his cohorts" because (1) Helgren's testimony in this regard is "newly minted" (i.e., Helgren conceded that it was not included in his OSHA statement), (2) Jensen did not corroborate Helgren's claim that Gonzales had given the alleged instruction to all drivers, and (3) the drivers' own actions, as reflected in the DVIR forms in the record which contain repeated entries for recurring problems, belie their testimony that Gonzales had instructed them to not repeat prior entries on DVIRs. MCP Post-Hearing Brief at 7-8 n.4. I have considered these points but, upon review of the entire record, I find the testimony of Helgren, Cook and Moore more credible than Gonzales's denial. First, while it appears that Helgren's statement to OSHA does not mention Gonzales's instructions about completing DVIRs,13 this silence does not have the same effect as a prior statement that is inconsistent with a witness's testimony, particularly where the matter omitted from the statement is not directly related to the matter being investigated. That is, OSHA was investigating Helgren's complaint that he discriminated against for refusing to drive a
truck on February 18, 2000. The matter of what instructions Helgren may have been given about filling out DVIRs, while possibly relevant background information, clearly did not have any direct bearing on MCP's reasons for suspending and terminating him. Helgren's testimony at the hearing consumed nearly 400 transcript pages. It is unreasonable to expect that each and every relevant conversation during his 10 months of employment at MCP would be contained in an investigative statement.14 Second, the testimony elicited from Helgren and the other drivers does not bear any indicia of a recent fabrication such as implausibly consistent recitation of details. Instead, each driver's recollection varied somewhat with respect to such details as when, where and to whom Gonzales communicated his instructions, and one of Helgren's alleged cohorts, Jensen, even failed to recall any instruction about DVIRs other than a suggestion that he should be more explicit. This, plainly, is not the type of performance one expects from a group of witnesses who conspire to furnish false testimony. Third, the drivers did not testify that they were ordered or directed not to repeatedly write up the same problem on DVIRs; rather, the substance of their testimony is that Gonzales told then that they did not "need" to write the same problem up repeatedly. Thus, I do not perceive any material inconsistency between what the drivers were reportedly told and what the record shows that they actually did when completing DVIRs. Finally, I find Gonzales's denial unconvincing.15 Accordingly, I find that Gonzales did tell Helgren and other drivers that they did not need to repeatedly write up the same problem on DVIRs.
C. Reported Problems with Truck T416 and MCP's Responses
The vehicle at issue in this matter, truck T416, is a tractor manufactured by Freightliner. RX 5. T416 was assigned primarily to Gonzales, but it was also driven by Helgren, Cook, Moore, Jensen and others. TR1208 (Gonzales); JX 5; RX 8. The story of T416's problems begins on January 7, 2000 when Jensen included a negative comment about the driver's seat on the DVIR and checked the suspension system and steering as defective items. JX 5 at 18.16 Five days later, Helgren completed a DVIR for T416, noting an inoperative fog light and loose fog light bracket. JX 5 at 21. The DVIR contains a notation that these items were repaired on January 12 followed by Gonzales's initials. On January 13, Moore made a post-trip notation on the DVIR that T416's driver's side mirror bracket was broken, and the DVIR contains an unsigned notation that this defect was repaired on the same date. JX 5 at 22.
On January 17, Helgren drove T416 and noted on his DVIR that the truck made a "clunking noise turning into corners when loaded something is not right." JX 5 at 25. This DVIR also contains Gonzales's initials and a notation, "to be checked 1-20-00." Id. Helgren drove T416 again on January 18 and January 19. On January 18, he checked the frame and assembly and front axle as defective items on the DVIR, and he added the following comment: "Front end needs to be checked out. Clunks in corners and when in traffic at stops and starts. Front end shakes out of alignment." JX 5 at 26. On January 19, Helgren added the steering and tires to the list of defective items on the DVIR, and
he commented that T416 "pulls to the left, shakes, rattles and goes bump." JX 5 at 29. At Gonzales's request, Brian Gallup, the Valley Freightliner mobile mechanic, inspected T416's front end on the evening of January 20 and found that the spring pins needed more grease which, in his opinion, was the cause of the popping or clunking noises. TR 1155-1159 (Gallup). Gallup then wrote the following note to Gonzales on the January 18 DVIR: "Spring Pins all took grease & didn't show much sign of wear, but was the popping. Probably worn in & will need to be replaced. I'll talk to you tomorrow on it." JX 5 at 27. Gallup testified that he also checked the king pins, wheel bearings, tie rod ends, drag links, steering box and steering U-joints and found no problem whatsoever with any of these parts or the T416's frame assembly, and no condition which raised any immediate concern or safety issue. TR 1159-1160. MCP was billed for the Gallup's work on T416. RX 9. Because Gallup did not have the necessary equipment to perform an on-site front end alignment check, Gonzales scheduled an appointment for T416 to be checked at Valley Freightliner on January 28. TR 1223 (Gonzales).
Gonzales and Moore both drove T416 on January 20, and they did not check any items as defective on their DVIRs or include any adverse comments. JX 5 at 30-31. However, when Helgren drove T416 on January 24, he checked that frame and assembly, front axle, suspension system and steering were defective items, commenting, "front steering shakes and pulls to the left, knocking noise up front somewhere." JX 5 at 32.17 Moore drove T416 after Helgren on January 24 and placed a post-trip notation on the DVIR that there was "front end wobble." JX 5 at 33. On January 25, Helgren drove T416 and checked the frame and assembly, front axle, suspension system, steering and tires as defective items on the DVIR. He also added a remark that the "front end and drive train need to be torn apart and put back properly to manufacturer's specifications." JX 5 at 34.18 Moore drove T416 after Helgren on January 25 but noted no defective items and checked that the condition of the truck was satisfactory. JX 5 at 35.19
On January 26, Jensen drove T416 and checked the brakes and front axle as defective items on the DVIR. He also wrote in the "Remarks" section "vibration front axle R/R [repair/replace]" and "Red Tagged ? no front drive axle brakes possibly steer axle also." JX 5 at 36. Jensen testified that he had placed the "red tagged" notation on the DVIR, taking T416 out of service upon his return to the Puyallup terminal on January 26, because he had "put the brakes on hard in the parking lot and watched in the mirrors and could see that the front drive axle had not locked up, but the rear had." TR 539. At Gonzales's request, Gallup checked the brakes that evening and found that the two rear slack adjusters, which are used to adjust the truck's brakes, needed replacement. Gallup replaced the slack adjusters and also adjusted all the brakes. TR 1165-1169 (Gallup); RX 9 - 10. Regarding this repair work, Gallup wrote the following note to Gonzales on Jensen's DVIR: "Rear two slack adjusters replaced. Need P.O. [purchase order]. All brakes adjusted. Let's run with that before we replace any more. Those both had problems. One very hard to adjust & other worn out." JX 5 at 37. Gonzales noted that the slack adjusters had been replaced on the DVIR which he posted on the clipboard. JX 5 at 36; TR 1230-1231 (Gonzales). Gonzales also informed Jensen of the brake work and commended Jensen for his action, and Jensen testified that Gallup's work corrected the braking problem that he had reported. TR 561-562, 591, 595.
Gallup's work on T416's brakes did not remedy the reported vibration problem as Cook wrote that the "truck shimmys [sic] after about 45 or 50" when he completed a DVIR on January 27. JX 5 at 38. The following day, Cook drove T416 again and, consistent with Gonzales's earlier statements that drivers did not need to repeatedly write up the same problem, his DVIR for January 28, 2000 lists no defective items and simply states that the truck is "OK." JX 5 at 39.
On the evening of January 28, T416 was brought to Valley Freightliner with instructions to "c[heck] and advise for vibration at 59 mph - loaded or empty." RX 11. Valley Freightliner's invoice reported that it trouble shot and test drove T416 on January 29 and checked the ride height, drive line, and front end. The invoice further states, "found tires on #2 axle mismatched - (17/32 & 6/32) the outside tire is larger than the others (it weighs more) causing the vibration." RX 11. After T416 was returned from Valley Freightliner, Gonzales wrote "completed" on the January 18 DVIR. JX 5 at 28. On January 31, Gonzales requested a price quote for four new tires from Tiny's Tire Service, and a purchase order for the tires was then prepared. TR 1238 (Gonzales); RX12.
The record shows that Helgren drove T416 twice on Monday, January 31, after the truck had been returned from Valley Freightliner. Following his first trip, Helgren checked on the DVIR that the frame and assembly, front axle, suspension system and steering were defective items, and he remarked that there was a "clunking noise in front end and still shakes in the front axel [sic] when steering loaded or empty." JX 5 at 40. After this DVIR was turned in, Gonzales wrote "front end checked OK 1-29-00 R/S front drive has miss [sic] matched tire causing shake." Id. After his second trip on January 31, Helgren checked brake accessories, frame and assembly, front axle, suspension system and tires as defective items. He indicated that the truck's condition was not satisfactory, and he wrote the following remarks:
Officially taken "out of service" and red tagged, according to DOT Rules and Regulations. Front axle and suspension need taken out and rebuilt to find problem. Left front brake grabs hard and pulls truck out of lane and steering shakes all the time.
JX 5 at 41 (quotations in original). Helgren testified that after he had "red tagged" T416, Thomas informed him that Valley Freightliner had determined that the vibration problem was being caused by the mismatched drive axle tires, and Helgren responded that he was so confident that this was not the source of the problem that he was willing to bet his house on it. TR 1321. Helgren testified that he also told Thomas that based on his experience driving T416, he did not think that the shops were giving Thomas accurate information regarding T416's problems, and he explained that it was his belief that the vibration in the hood and mirrors and the front end clunking could not be accounted for by mismatched tires. TR 1321-1322.
When Helgren took T416 out of service, MCP decided to take the truck to a second shop, Dirk's Truck Repair, for evaluation. Gonzales drove T416 to Dirk's and explained to the manager, Robert "Spike" Goerisch, that there had been a complaint about steering wheel vibration and movement, that MCP wanted Dirk's to check out the front end and make sure everything was okay, that he was not sure what the vibration was, and that Dirk's should "just find it and fix it." TR 674 (Goerisch), 1237 (Gonzales). Dirk's performed several tests on the vehicle and did a comprehensive inspection. TR 676-679 (Goerisch), 977-979 (stipulation). Additionally, Gonzales took T416 to Tiny's Tire where the mismatched drive axle tires were replaced, and the truck was taken to a third shop, M&M Truck Repair, where the tires were spun tested. TR 1112-1113 (Thomas), 1239-1240 (Gonzales). Dirk's invoice summarizes its work and findings as follows:
Vehicle brought to shop to inspect for vibration and pulling on brake application. Jack up truck and check the king pins no problem found. Inspect tie rods and tie rod ends no problem found Check spring pins/bushings and hangers no problem found. Check suspension no problem found Sent vehicle to Tiny's Tire They replaced drive axle tires They removed front wheels and balanced the tires and reinstalled This took out most all of the vibration The truck was taken to another shop and they put the truck up on a tire runout machine and no problems were found This vehicle is safe to drive. Vehicle T416 Freightliner. License YACX991. Mileage 77344.
RX 4 at 1-2. Helgren next drove T416 on February 3 and 4, and on both dates he noted no defective items and instead checked on the DVIR that the condition of the vehicle was satisfactory. JX 5 at 44-45.20 Cook drove T416 on February 5 and also reported finding no defective conditions. JX 5 at 46. On February 8, Jensen drove T416 and only reported a problem with wiper blades, JX 5 at 47,21 but Cook, who drove T416 after Jensen on February 8, placed a post-trip remark on the DVIR that the "truck pull[s] hard to the left under breaking [sic] (sometimes) and shakes in the steering." JX 5 at 48. At Gonzales's request, Gallup checked T416's brakes on February 8 and adjusted them after he found the left front brake to be "slightly tighter" than the right front brake. JX 5 at 47; TR 1169-1171 (Gallup), 1251-1252 (Gonzales). Gallup also checked the "ABOVE DEFECTS CORRECTED" line on the original of the Jensen's February 8 DVIR, and he signed and dated the DVIR in the spaces provided for a mechanic's signature and date. JX 5 at 47. Gallup testified that although the brakes needed adjustment, he did not feel that this was an unsafe condition. TR 1170.
Gonzales drove T416 on February 9 and checked the tires as a defective item on the DVIR. He also wrote "L/Front steer tire needs replace" under remarks. JX 5 at 49. Gonzales testified that he still noticed some vibration when driving T416 on February 9, so he decided to replace the left front steer tires as he thought that a split cord in one of those tires might be causing the shimmy. TR 1252-1254. Accordingly, the front steer tires were to be replaced by Tiny's Tires on February 11. TR 841 (Thomas), 1253-1254 (Gonzales); RX14. Between February 9 and February 16, Cook, Moore and Gonzalez all drove T416 and reported no defective items aside from Moore's remark about a loose phone connection on February 10. JX 5 at 50-55.
On February 17, Jensen listed the clutch, front axle, steering and "other" as defective items and he included the following remarks: "DVIRs 2-1-00 thru 2-9-00 missing from report book. King pins R/R per John @ Tiny's Tire Service." JX 5 at 56. As discussed below, Helgren refused to drive T416 on February 18, resulting in his suspension and eventual termination. On the evening of February 18, T416 underwent regularly scheduled "B" service by Gallup at the Puyallup terminal. Gallup checked the front end, including the king pins, and testified that he found no defective condition or safety hazard. TR 1174-1178; RX 16. Upon completion of the "B" service, Gallup checked the "ABOVE DEFECTS CORRECTED" box on the February 16 DVIR and signed on the mechanic's signature line. JX 5 at 55; TR 1174 (Gallup). Gonzales also placed a notation on Jensen's February 17 DVIR that reads, "B-service completed 2-18-00 truck has been checked." JX 5 at 56.
Gonzales drove T416 on February 18 after Helgren refused, and he reported no defective items on his DVIR for that trip. JX 5 at 57. However, when Cook drove T416 on February 21, he included a remark that "truck shakes in front end and pulls to the right" on his DVIR. JX 5 at 58. Jensen drove T416 the following day, February 22, and checked the suspension system and steering as defective items on his DVIR. He also wrote that the "steering/suspension no seals" should be checked. JX 5 at 59. Cook drove T416 again on February 23 and 24, and on both occasions he checked the suspension system and steering as defective items on his DVIR and wrote "shimmy in steering" in the "Remarks" section. JX 5 at 60-61. Gallup testified that he discussed these continuing complaints with Thomas and Gonzales and suggested two possible causes of the vibration, unbalanced brake drums or "hubs" on the front steering axle or worn spring pins.22 MCP accepted Gallup's recommendation that the brake drums be replaced first. Gallup replaced the drums and discovered that the right side drum was missing a balance weight and that the brake shoe was not coming in contact with about four or five inches of the surface of the old drum. TR 1178-1187 (Gallup). He recorded that the drums were replaced on the February 24 DVIR and signed on the mechanic's signature line that the defects reported by Cook had been corrected. JX 5 at 61.
The vibration/shimmy/shaking problem in T416 appears to have abated for a few weeks with replacement of the steer axle hubs, but the problem resurfaced by March 20, 2000 when Cook reported on his DVIR that the "truck pulls to the right and shimmys [sic] in steering." JX 5 at 64. MCP brought the truck back to M & M Truck Repair where a four-way alignment was done on March 28, 2000. RX 19. Martin Thomas, a mechanic and part-owner of M & M, test drove T416 and observed that it drifted to the right and that there was vibration in the hood but not the steering. Based on these observations and the fact that M & M had previously balanced the front steer tires, Thomas felt confident that the problem was in the rear end, not the front end. TR 1114-1116. He further testified that the truck was placed on an alignment machine where it was discovered that the rear axle was out of alignment "which was driving the truck to that that direction to the right." TR 1117. The axle was realigned, and the tires were rotated to correct a misalignment which Thomas attributed to the tires being ground a bit during hard braking, a common occurrence. TR 1117-1118. Thomas drove T416 again and stated that it "steered straight, no bounce in the hood. It was ready for service." TR 1118. In Thomas's opinion, the problems with the drift and vibration in T416 prior to the alignment and tire rotation were an "annoyance" but did not make the truck unsafe. TR 1117.
Based on the foregoing, it is undisputed and I find that from mid-January 2000 through late March 2000, MCP drivers experienced conditions in T416 which included front end vibrations or shimmying, drifting off center and irregularities during braking. It is also undisputed and I find that during this period, the Respondent had T416's front end, including the steering and front axle components, checked out by several different mechanics and mechanical repair shops; that the Respondent initiated several different corrective attempts at the suggestion of these mechanics (e.g., greasing spring pins, replacing rear brake slack adjusters, adjusting brakes, replacing and balancing tires and replacing brake drums) which did not completely or permanently resolve the reported conditions; that T416 was declared safe to drive by each mechanic who inspected it; and that the drift and vibration or shimmy was finally corrected at the end of March 2000, after Helgren's termination, when T416 underwent a four-way alignment, during which it was discovered that one of the rear drive axles was misaligned, and tire rotation. Although these basic facts are undisputed, the testimony offered by the witnesses at the hearing varied greatly with respect to the severity of the reported conditions.
Helgren and the other MCP drivers called at the hearing portrayed what appear to be significant and potentially unsafe conditions in T416 during the January - February 2000 time frame. Helgren testified that the cab of T416 shook erratically from the tires bouncing on the road at speeds between 50 MPH and 60 MPH and that the shaking was severe enough to prevent him from seeing images clearly in the truck's rear view mirrors. TR 64-65, 93, 162, 201-216. He additionally testified that he encountered "a bumping noise under the floorboards in the front of the truck" in mid-January that he could feel in his feet when turning at 25 MPH to 35 MPH. TR 65, 201.
Referring to the DVIR he completed after driving T416 on January 27, 2000, JX 5 at 38, Cook testified that when he drove T416 on January 27, 2000 the truck shimmied and that the steering wheel "violently" shifted about four or five inches from left to right at speeds between 45 MPH and 50 MPH. TR 420-421. Cook further testified that between late January and March 20, 2000, he experienced shimmying in T416's steering as well as pulling to the right several times which he reported to MCP management. TR 454-455. He also acknowledged that the problems temporarily abated after MCP attempted different corrective measures but eventually reappeared:
You know, there was times that the truck drove good. You know, they'd replace the tires, the truck drove good for, you know, a little while, a couple of days a week or whatever, and then it got worse. And there's times that they did other things, you know, and it drove fine for a little while.
TR 460. Moore testified that he had observed a "front end wobble or shimmying" of varying intensity while driving T416 at around 50 MPH such that it
appeared to him that the truck "wanted to kind of self-destruct on itself." TR 502. Moore stated that the truck's fiberglass hood shook back and forth, and he stated that he could feel the shaking through the steering wheel to the point that it was tiring to hold the truck on line. TR 502-503. On cross-examination, Moore stated that he also experienced a braking problem, which he described as a pull or unevenness, in T416 prior to Helgren's suspension but not to the extent that he considered the brakes to pose a safety concern. TR 515-518.23
Jensen testified that he experienced "vibration in the steering and throughout the truck and braking problems with the front drive axle" of T416 on January 26, 2000. TR 537. He stated T416's vibration caused a "shake through the whole truck" that varied between 45 MPH and 60 MPH and that he could eliminate the vibration by changing the speed of the truck. TR 538. Jensen further testified that upon his return to the Puyallup terminal on January 26, 2000 after a trip, he placed a "red tag" notation on the DVIR for T416, taking the vehicle out of service, because he had "put the brakes on hard in the parking lot and watched in the mirrors and could see that the front drive axle had not locked up, but the rear had." TR 539.
Though Jensen took T416 out of service on January 26, it is clear that he did so because of the problem he perceived with the operation of the brakes and not because of concerns related to the vibration or shaking in the front end. It is also clear from the record that Helgren was the only MCP driver who considered the shaking and suspected front end problems to pose a safety problem. Indeed, Thomas questioned the other Puyallup terminal drivers on February 18, after Helgren refused to drive T416, whether they considered the truck safe, and each driver indicated that he/she considered the truck to be safe and would drive it if dispatched. TR 879 (Thomas), 553-555 (Jensen).
In contrast to the testimony of the other drivers, Gonzales, who was the driver primarily assigned to T416, characterized the truck's vibration as no more than an "annoyance" and not a safety issue. TR 1253, 1310-1311. He described the condition as a slight shaking in the hood with a sideways movement of approximately an inch or so, similar to what he had experienced on other trucks. TR1221-1222, 1240, 1261. According to Gonzales, any truck will experience some shaking or movement in the hood. TR 1240. Gonzales further testified that he never experienced any shimmy in T416 which he considered to be an unsafe condition and that he would have not allowed the truck to be driven with an unsafe condition. TR 1240, 1281. He added that he had been involved in a fatal accident in the past and, consequently, treats safety matters seriously. TR 1282-1283. Terminal manager Thomas, who is not a driver himself, testified that he had ridden in T416 during the period when the shimmy or vibration was being reported by drivers and observed "very little" or "normal" vibration or movement. TR 864, 907, 944.
After reviewing the entire record, I am satisfied that the truth regarding the severity of T416's problems lies somewhere between these two conflicting lines of testimony. If fully credited, the descriptions offered by Helgren, Cook, Moore and Jensen suggest that the condition of T416 was so severe at times that images were obscured in the rear view mirrors, the steering wheel moved erratically back and forth and was tiring to control, the cab appeared to be on the verge of self-destruction and the truck would swerve out of its lane when the brakes were applied with force. It is simply unbelievable that experienced, prudent and reasonable drivers would continue to willingly drive a vehicle in this condition as these drivers allegedly did, day after day. Clearly, a certain degree of exaggeration and inflation is present in these accounts. On the other hand, I find the characterization by Gonzales and Thomas that the vibration was no more than an "annoyance" and comparable to the "normal" hood movement in any truck to be equally unconvincing in light of the repeated mechanical interventions that were undertaken to identify and correct the problems. I do not consider it credible that a reasonable and prudent employer would go to the lengths that MCP did in this case just to placate a group of ultra-sensitive (or as MCP argues, mendacious) drivers if it truly believed that T416 was operating normally and with no more than a minor, annoying vibration. Moreover, their understatement is belied by that fact that Gonzales himself was sufficiently motivated by the persistent vibration problem to spend nearly $800.00 on new front tires. RX 14a. This said, I find that T416 operated abnormally during January, February and March 2000 in terms of excessive vibration, steering drift and occasional irregularities while braking.
D. Events Leading to Helgren's Suspension and Termination
1. Helgren's "Red Tagging" of T416 on January 31, 2000
Helgren testified that he took T416 out of service after driving it for two trips on January 31, 2000 because he felt that the truck was not safe to drive. TR 88-92, 221. He noted on the DVIR after the second trip that the "left front brake grabs hard and pulls truck out of lane and steering shakes all the time." JX 5 at 41. Regarding the braking problems, Helgren described an incident where he applied the brakes quickly when a car merged too closely in front of him as traffic was coming to a stop, and this quick braking forced the steering wheel out of his hands and caused T416 to move half way into the left lane before he regained control of the truck and corrected the trajectory. TR 85.24 Gonzales testified that immediately after Helgren "red tagged" T416, he took the truck out for a ride and attempted to duplicate the reported brake problem but was unable to do so despite going 60 miles per hour and hitting the brakes hard. TR1236. However, Helgren's report of continuing problems in T416 as of January 31 was corroborated by Cook on February 8 when he similarly reported that the truck "pulls hard to the left under braking (sometimes) and shakes in the steering." JX 5 at 48. Additionally, the repeat inspection of the brakes on February 8 disclosed that the left front brake was tighter than the right, necessitating adjustment by Gallup. TR 1169-1171 (Gallup); JX 5 at 47. Although Thomas told Helgren on January 31 that Valley Freightliner had checked out T416 and found the vibration to be the result of mismatched tires, Helgren was confident that the source of the shaking he'd experienced lay elsewhere. TR 806-807 (Thomas), 1321-1322 (Helgren). Accordingly, I find that Helgren took T416 out of service on January 31, 2000 because he believed that the vehicle had continuing steering and braking problems which had not been adequately addressed and corrected.
2. Helgren's Refusal to Drive T416 on February 2, 2000
Helgren was scheduled to drive T416 on February 2, after the vehicle had been to Dirk's, Tiny's Tire and M&M for inspection and service which included replacement of the drive axle tires and balancing of the front steer tires. Helgren did a pre-trip inspection, JX 5 at 42, and was informed by Gonzales that the truck had been to Dirk's where it had been checked out as satisfactory. TR 225 (Helgren). Helgren told Gonzales that he was not going to put T416 back in service, and he asked Gonzales to provide him with "paperwork" (i.e., confirmation that T416 had been to Dirk's and inspected) and to have a mechanic sign the prior DVIR, indicating that the defects he'd cited on January 31 had been corrected. TR 225-226 (Helgren). Gonzales responded that a mechanic did not have to sign the DVIR and that a company representative's signature was all that is required by the Department of Transportation regulations. TR 226 (Helgren). Gonzales brought out the pertinent regulations and the invoices from Valley Freightliner and Dirk's, but Helgren continued to insist that Gonzales was wrong and that a mechanic's signature was required.25 TR 226, 263 (Helgren), 1242-1244 (Gonzales). Helgren then had a brief telephone conversation with Portland area manager Lewis, who also stated that a mechanic's signature was not required. TR 226-227 (Helgren), 1129-1130 (Lewis). Notwithstanding his position that a mechanic's signature was not required, Lewis told Helgren that MCP would get the DVIR signed by a mechanic and instructed Thomas to do so. TR 1130 (Lewis), 822-825 (Thomas). Helgren also told Thomas on February 2 that he would not take T416 out on the road because a mechanic's signature was not on the DVIR, and Thomas responded that MCP was getting a signature to indicate that the work had been done. TR 262-263. In view of Helgren's refusal to drive T416 until the January 31 DVIR had been signed by a mechanic, he was told to stay in the plant, and Moore was assigned to take T416 on its scheduled trip. TR 227, 416 (Helgren), 1247-1248 (Gonzales). Moore did not complete a DVIR on February 2. RX 2.
Pursuant to Lewis's instructions, Gonzales took the original of Helgren's second January 31 DVIR, along with the DVIR book containing the yellow copy, to Dirk's TR 1245-1247 (Gonzales). Goerisch then signed and dated the DVIR on the line designated for the mechanic's signature. TR 685-687 (Goerisch). However, Goerisch did not check either of the boxes above the mechanic's signature line to indicate that the defective items had been corrected or that correction was not necessary for safe operation of the vehicle. JX 5 at 41. Gonzales returned to the Puyallup terminal after obtaining Goerisch's signature, and he showed the DVIR containing Goerisch's signature to Helgren who smiled and said, "That's all I wanted." TR 1247 (Gonzales).26 It is undisputed that MCP took no disciplinary against Helgren based on his refusal to drive T416 on February 2, 2000.
3. The Trips to Tiny's Tire and Valley Freightliner on February 11, 2000
After driving T416 on February 3 and 4, Helgren was asked to take the truck to Tiny's Tire on February 11 to get the front steer tires replaced. TR 92 (Helgren), 1254 (Gonzalez). Helgren did not complete a DVIR for this trip but testified that he noticed the same shaking that he had previously experienced while driving T416. TR 92-93, 269-70. While T416 was jacked off the floor at Tiny's to mount the new tires, Helgren inspected the truck's front end components to see what work had been done; that is, he checked the front hubs for oil, the cam brakes for adjustment, the grease fittings and tie rods for being greased. TR 94 (Helgren). Helgren observed that the oil was low in the front axle and that the adjustment sleeves on the cam brakes, the grease fittings and the tie rods were covered with mud which led him to believe that, contrary to the earlier statements by Gonzales and Thomas, that no work had been done on the front end. TR 94-98, 272-278 (Helgren).27 Helgren testified that he also asked one of the tire changers at Tiny's, whose name he thought was John, to check the truck's king pins by using a three-foot tire changing bar to apply pressure against the bottom of the front tire while the truck was jacked off the floor. Although he conceded that he is not a certified mechanic and that he was unaware whether the tire changer at Tiny's had any mechanical training, Helgren stated that he had learned this procedure for checking king pins from a mechanic at the driving school he had attended, and that the tire on T416 showed movement or "slop" at the top when pressure was applied by the tire changer with the bar. TR 279-283.28
When he returned to the Puyallup terminal, Helgren told Gonzales that he had inspected the front axle while the truck was at Tiny's Tire, that he had also checked the king pins by placing a bar under the tire and observing "slop" or movement, and that he considered T416 to not be roadworthy. TR 99-101, 291 (Helgren), 1254-1255 (Gonzales). Gonzales's testimony was clear that Helgren told him that it was his (Helgren's) observation and opinion that there was movement in the king pins and that Helgren did not state to him that anyone at Tiny's Tire had voiced any opinion or concern about the king pins or suggested that they needed to be replaced. TR 1255-1258. Helgren also told Gonzales that T416 still shimmied. TR 1259 (Gonzales).
Having heard these comments from Helgren concerning T416, Gonzales decided to have Helgren drive his regularly assigned truck, T322, to Valley Freightliner for a scheduled appointment, while he would drive T416 in for further service. TR 1260 (Gonzales). Helgren testified that he observed T416 while it was being driven to Freightliner and saw it vibrating with the mirrors "moving up and down erratically" and the muffler stack moving eight to ten inches back and forth and the tires bouncing up and down on the pavement. TR 101-102 (Helgren). Gonzales also observed a shimmy in the steering while driving to Valley Freightliner, but he described it as no different than the shimmy he'd previously experienced, about one inch of movement in the steering wheel, nothing which caused him to feel that the vehicle was unsafe. TR 1260-1261. Gonzales further testified that he spoke to Helgren by phone while they were driving to Valley Freightliner and asked him to pull alongside and look down at
the tires for any shaking, but Helgren stated that he couldn't see anything. TR 1261-1262. In my view, as I've previously discussed, neither witness is completely reliable. That is, I find it to be more likely than not that Helgren has exaggerated the severity of the shaking he observed while Gonzales veered the other way toward understatement. Based on my assessment of the entire record, including the demeanor of the witnesses, I find that Helgren and Gonzales both observed some abnormal shaking or shimmy in T416 on the way to Valley Freightliner, but Helgren was unable to identify the source from his observations.29 It is undisputed that Valley Freightliner was unable to fit T416 into its service schedule on February 11, and the truck returned with Helgren and Gonzales to the Puyallup terminal. TR 1263-1263 (Gonzales).
4. February 17, 2000 and the "Missing" DVIRs
Jensen was assigned to drive T416 for a delivery on February 17. He testified that during his pre-trip inspection, he found the DVIR book "fanned out" and "falling apart" with missing pages lying on the floor of the cab. TR 546-547. Jensen recalled that the DVIRs started out in the end of January, around January 28, and continued to January 31 but then jumped to February 10 or 11. TR 548. Jensen was uncertain whether the missing DVIRs had been torn out of the book, only that there was a nine day gap in the sequence. TR 573-574. Jensen though that it "seemed odd" that a week of DVIRs would be missing, TR 548, and he wrote in the "Remarks" section of his DVIR, "DVIR's 2-1-00 thru 2-9-00 missing from Report Book." JX 5 at 56.30 He also checked the boxes indicating that the clutch, front axle, steering and "other" were defective items, and he wrote the additional remark, "King Pins R/R per John @ Tiny's Tire Service." Id.; TR 548, 573-574 (Jensen). Regarding this latter remark, Jensen testified that he had a conversation with Helgren after Helgren had taken T416 to Tiny's Tire, and Helgren had told him that the tire guy at Tiny's had wiggled the tires, that Helgren had seen a lot of wiggle and that it was Helgren's opinion that the king pins needed to be replaced. TR 578-582. Jensen did not speak to anyone at Tiny's and had no personal knowledge of what had transpired while T416 was at Tiny's on February 11, and he "imagine[d] John and whoever was checking the king pins at that time" had also observed the wiggle. TR 579, 582. Jensen denied that Helgren had told him to place the remark about the king pins in the DVIR. TR 580.
Helgren testified that he had two conversations with Jensen on February 17, 2000, first by telephone while he was out making a delivery and the second back at the Puyallup terminal. This first conversation took place when Jensen called him and stated that the DVIRs were missing and that T416 was still operating in the same manner as when Helgren had previously written it up. TR 293-294. Helgren further testified that he told Jensen that he had observed "slop" in the king pins as well as the condition of the grease fittings, cam brakes and front axle oil while the T416 was at Tiny's on February 11, TR 294-295, but he stated that "John" was not mentioned in this conversation:
TR 295-296.31 Finally, Helgren testified that Jensen told him during their second conversation on February 17 that he was going to put something in the DVIR about the condition of T416. TR 296-297. Jensen did not check the box on the February 17 DVIR to indicate that the condition of the vehicle was satisfactory. JX 5 at 56.
5. Helgren's Refusal to Drive T416 on February 18, 2000
On February 18, Helgren was assigned to drive T416 on his second delivery of the day. TR 112, 299-301 (Helgren). Helgren testified that, after reviewing the dispatch sheet, he attached a trailer to T416. TR 112, 300. He then reviewed the DVIR book for T416 and determined that T416 still had the same problems and that it had not been taken back to Valley Freightliner to get the problems resolved. TR 112-113. That is, there is no indication in the DVIRs or any other evidence that T416 had been brought back to Valley Freightliner at any time between February 11 and February 18, 2000 or that any other service on the vehicle had been performed between February 11 and February 18. The sole reference to service on T416 during this period is a notation "B Service Due" which appears on the February 16 DVIR. JX 3 at 55.32 Helgren additionally noticed that the DVIR book appeared to have been dismantled and stapled back together. TR 301-302 (Helgren). While he did not review any DVIRs other than the DVIR Jensen had completed on February 17, Helgren concluded from what Jensen had told him on February 17 that the reportedly missing DVIRs had been destroyed, a circumstance which he had never previously experienced during his employment at MCP. TR 114, 303. After reading Jensen's February 17 DVIR, Helgren called Jensen on his Nextel phone to verify what Jensen had
written on the DVIR, and he was told by Jensen that T416 was experiencing the same problems as had been previously reported. TR 115. Helgren then went to Gonzales and asked which tractor Gonzales wanted him to put under Trailer 627, pointing out that there was something wrong with T416 and that the DVIR had not been signed off by a mechanic. TR 116-117.33 According to Helgren, Gonzales asked him what was wrong with the truck, and he answered that the paperwork, Jensen's February 17 DVIR, had not been signed off that the work had been done. TR 117-118, 306-308.34 Gonzales responded by telling Helgren to go to lunch, and Helgren then went to return the DVIR book to T416, pausing briefly to talk to Cook. TR 116, 119 (Helgren). Helgren testified that Gonzales followed him as he was walking out to T416, stating that he didn't see what the problem with the truck was, and asking him if he was refusing to take the load, to which he responded that he was not refusing the load, only the truck. TR 312 (Helgren), 431 (Cook). Helgren then accused Gonzales of taking the DVIRs out of the book, and he admitted to being angry, raising his voice and using profanity while he was talking to Gonzales outside of the terminal building. TR 119-120, 129-130, 313-315.
Helgren stated that after returning the DVIR book to T416, he went to the break room for lunch. He then went back downstairs around 7:00 a.m., saw that Gonzales and Thomas were on the phone in the office, so he began helping the maintenance man, Don Lamb, repair a pump. TR 123-124. Helgren testified that he and Lamb finished the work on the pump, and he went over to the tool bench where he was approached by Gonzales and Thomas who asked him if he was refusing to take the load. TR 124-125. Helgren states that he responded that he was not refusing to take the load, just the truck, and Thomas told him that he was suspended for insubordination. TR 125. Helgren denied that he had refused to drive T416 because the king pins had not been repaired or replaced, and he denied ever telling anyone that was the reason he refused to drive T416 on February 18. TR 306. Helgren testified that he would have driven T416 if a mechanic had signed the DVIR indicating that work had been done; however, he would not have driven if the mechanic had merely indicated that corrective action was not necessary for safe operation because he personally believed that T416 was not safe to operate on February 17, 2000. TR 308-309.
Gonzales's version of his conversations with Helgren on February 18 differs markedly in two important areas. Gonzales agreed that Helgren asked what truck he wanted him to put under the trailer and that he asked Helgren what he was talking about, but he testified that Helgren responded by stating, "According to John at Tiny's Tires, the truck is not roadworthy because of the king pins. And you can go ahead and call Tiny's Tire." TR 1269. Gonzales also denies that Helgren ever made any reference to the February 17 DVIR not being signed. TR 1276-1277.
Gonzales and Thomas testified that after the first conversation between Helgren and Gonzales, the latter went to Thomas's office and reported that Helgren was refusing to drive T416 because the king pins needed to be repaired or replaced per John at Tiny's Tires. TR 854-855 (Thomas), 1270 (Gonzales). Thomas had Gonzales call Curtis Martin, the manager of Tiny's Tires, to determine whether "John" had worked on T416 and, if so, whether he'd said anything about the truck's king pins. TR 856 (Thomas), 1270 (Gonzales). Martin
responded that John was not there at the time. TR 1270 (Gonzales). Thomas testified that he called Martin back, explaining that he needed an answer because a driver was refusing to operate T416 based on something John had reportedly said about the king pins, and Martin agreed to go to John's home. TR 857. Thomas further testified that Martin called back about 15 or 20 minutes later to report that John had not worked on T416, that another tire changer, Bill, had done the work and had said nothing about the king pins and that Helgren had tried to get him to find something wrong with T416's front end. TR 858-859. At Thomas's request, Martin then faxed the following statement to Thomas:
On Friday February 11th a freightliner truck owned by Liquid Sugar Inc. came into our shop to have two new tires put on. The driver constantly engaged our employee in conversation and asked numerous questions about the mechanical fitness of this truck. Our employee checked the undercarriage and saw no problems and informed the driver of this. Bill (our employee) finished the installation of the tires, the billing was made, but Bill did note that the driver was unusually adverse to the condition of the vehicle almost as if he were trying to find something wrong with it.
RX 15; TR 984 (stipulation).35 Thomas then contacted area manager Lewis to advise him of the situation, and Lewis in turn contacted Roger Evert, MCP's Vice President of Human Resources. TR 862-866 (Thomas), 1136-1138 (Lewis). At Evert's instruction, Lewis called Thomas and told him to explain to Helgren that T416 had been checked by several mechanic shops and determined to be safe to drive and that if Helgren were to continue to refuse to drive the truck, he would be suspended for insubordination with a possibility of termination. TR 954-955 (Evert), 1139 (Lewis). Thomas testified that, pursuant to these instructions, he went out and asked Helgren if he was refusing to drive T416 and, when Helgren responded that he was refusing to drive T416, he stated that T416 was safe to drive, that it had been "checked out by all those shops and each shop had told us that the vehicle is safe to drive" and that he would be suspended with a possibility of termination for insubordination if he refused to drive. TR 872-873. Thomas stated that he then asked Helgren if he would drive T416 and, when Helgren responded that he would not, he said, "Then you are on suspension right now with the possibility of termination for insubordination." TR 873.
Gonzales drove T416 on the delivery which Helgren had been scheduled to make on February 18. TR 878 (Thomas), 1277-1278 (Gonzales). Gonzales testified that he again felt a shimmy in the steering, but characterized it as just an "annoyance." TR 1279. He completed a DVIR which cited no items as defective. JX 5 at 57. Thomas testified that he personally polled each one of the other drivers as to whether they felt T416 was unsafe to drive and that all of the drivers responded that they felt that the truck was safe and that they would drive it if dispatched. TR 879. Jensen confirmed that he told Thomas that he would drive T416. TR 553-555.
The foregoing summary of the testimony shows that there is a sharp divergence as to what Helgren said to Gonzales during their initial conversation on the morning of February 18 when Helgren first refused to drive T416. Helgren claims that he told Gonzales that he would not drive because there was still something wrong with T416 and the paperwork, Jensen's February 17 DVIR, had not been signed by a mechanic indicating that the work had been done. Gonzales denied that Helgren ever mentioned the DVIR and lack of a signature, and he quoted Helgren as instead saying that he would not drive because, "According to John at Tiny's Tires, the truck is not roadworthy because of the king pins. And you can go ahead and call Tiny's Tire." TR 1269.
Based on my review of the record, including my observations of the witnesses's demeanor, I find that Helgren's account of this conversation is more credible than Gonzales's version. First, I note that Helgren's raising of the lack of a mechanic's signature is entirely consistent with his behavior two weeks earlier on February 2 when it is conceded that he refused to drive T416 because the prior DVIR had not been signed by a mechanic. Second, it simply would make no sense for Helgren to assert that John at Tiny's Tire had proclaimed T416 to be unsafe because of its king pins. Helgren knew that this was not true and, more importantly, he had never previously told Gonzales that John or anyone at Tiny's Tire had said anything about the king pins. Rather, Helgren and Gonzales both testified that Helgren stated upon returning to the Puyallup terminal from Tiny's on February 11 that he personally had observed the "slop" in the king pins. Thus, if Gonzales is to be believed, Helgren came up to him one week later on February 18, made a knowingly false claim that John at Tiny's had deemed T416 to not be roadworthy because of the king pins, and then invited Gonzales to call Tiny's to expose his mendacity. Only an idiot or an employee trying to commit industrial suicide would act this recklessly, and Helgren certainly did not impress me as either. Third, although Helgren's OSHA statement was not offered, MCP's cross-examination revealed that he raised the claim to OSHA that MCP had violated the regulations dealing with DVIRs by not having a mechanic sign off a DVIR on which a driver had noted defective items, TR 284, and there was no suggestion through his extensive cross-examination that Helgren's statement to OSHA varied from his hearing testimony regarding the reasons he gave to Gonzales for his refusal to drive T416 on February 18. For these reasons, I find that Helgren told Gonzales that he would not drive T416 because there was still something wrong with it and because the prior DVIR had not been signed by a mechanic. I further find that Helgren did not tell Gonzales that he was refusing to drive T416 based on his false claim that John at Tiny's Tire had said that T416 was not roadworthy because of the king pins, and I find that the statement on Jensen's February 17 DVIR ("King Pins R/R per John @ Tiny's Tire Service") was based on Jensen's interpretation of what had transpired at Tiny's on February 11. Finally, I find that there is no material dispute regarding the remainder of the pertinent conversations and events on February 18, 2000, as described by Helgren, Gonzales and Thomas.
E. MCP's Decision to Terminate Helgren's Employment
Following Helgren's suspension, Evert testified that he reviewed the chronology of events leading up to February 18 including Curtis Martin's letter to Thomas, and he concluded that Helgren had provided false information to the company regarding what had happened at Tiny's Tire. TR 958-960. Evert also learned that the "B" service
performed by Gallup on February 18 after Helgren had refused to drive T416 did not find any problem with the truck which confirmed his belief that Helgren had provided false information to the company. TR 960-961. On the basis of this information and his conclusions as to what had occurred, Evert testified that he decided to terminate Helgren's employment, effective February 25, 2000, for two reasons (1) insubordination for refusing to drive on February 18 and (2) improperly attempting to disrupt MCP's operations by providing false and misleading information regarding the visit to Tiny's Tires and by then using that false information as an excuse for refusing to drive T416. TR 961-962. The termination decision and the reasons for the termination were communicated to Helgren by letter dated February 25, 2000. CX 6.
F. Helgren's Damages and Efforts at Mitigation
Helgren was not paid by MCP after February 18, 2000, though he testified that he did receive a check for accrued vacation time which he had not cashed at the time of the hearing. TR 130-132. In addition to his loss of pay, Helgren testified without contradiction that his dependent daughter required medical treatment during July 2000 and that he incurred medical expenses in the amount of $517.75 which would have been paid by his employer-sponsored health insurance had he still been employed at MCP. TR 139-140; CX 7. He also testified that he had retained an attorney in connection with his termination, TR 137-138, and his attorney moved for allowance of fees in the amount of $527.50. TR 352-352; CX 8.
After his termination by MCP, Helgren sought alternative employment, and he began working for Alaska West Express ("AWE") on April 3, 2000 as a full-time truck driver with a pay rate of $15 an hour, more than he was earning at MCP. TR 23-24, 365, 371 (Helgren). Helgren worked at AWE until May 30, 2000 when he voluntarily quit immediately after receiving the Secretary's preliminary order for reinstatement so that he could return to employment with MCP. TR 24 (Helgren). Helgren did not seek further employment and remained unemployed through the date of the hearing. TR 385-386 (Helgren). He testified that he no reason to believe that he would not still be employed at AWE had he not voluntarily quit on May 30. TR 372. Helgren testified that he has made no effort to find employment since May 30, 2000, and he acknowledged that the business representative for Teamsters Local 313 gave him the names of employers looking for drivers and told him on several occasions that the union hall was empty and that he could immediately get a job driving a dump truck at a rate of $24.00 per hour. TR 387-389.
Section 405 of the STAA prohibits the discharge of, or discipline or discrimination against, an employee in the commercial motor transportation industry because the employee either files a complaint or initiates or testifies in a proceeding related to a violation of a commercial motor vehicle safety regulation, standard, or order, or because the employee refuses
to operate a vehicle in certain circumstances. That section in pertinent part states,
(1) A person may not discharge an employee or discipline or discriminate against an employee regarding pay, terms, or privileges of employment because
* * * * * (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.
(2) Under paragraph (1)(B)(ii) of this subsection, an employee's apprehension of serious injury is reasonable only if a reasonable individual in the circumstances then confronting the employee would conclude that the unsafe condition establishes a real danger of accident, injury, or serious impairment to health. To qualify for protection, the employee must have sought from the employer, and been unable to obtain, correction of the unsafe condition.
49 U.S.C. §31105(a). To prevail on their allegation that MCP violated the STAA, Helgren and the Prosecuting Party must prove: (1) that Helgren engaged in protected activity as defined in the STAA and that MCP was aware of the protected activity; (2) that MCP discharged, disciplined or discriminated against Helgren; and (3) that there is a causal connection between the Helgren's protected activity and the adverse employment action. BSP Trans., Inc. v. United States Dep't Labor, 160 F.3d 38, 45 (1st Cir. 1998); Clean Harbors Environmental. Services, Inc. v. Herman, 146 F.3d 12, 21 (1st Cir. 1998) (Clean Harbors); Yellow Freight Systems, Inc. v. Reich, 27 F.3d 1133, 1138 (6th Cir. 1994); Moon v. Transport Drivers, Inc., 836 F.2d 226, 228 (6th Cir. 1987).
Under the STAA, the ultimate burden of proof generally remains on the complainant throughout the proceeding. Byrd v. Consolidated Motor Freight, 1997- STA-9 (ARB May 5, 1998), slip op. at 4 n.2. A respondent's burden is generally one of production only, to articulate a legitimate, non-discriminatory reason for the adverse action. To prevail, the complainant must establish, by a preponderance of the evidence, that the proffered reason is a pretext for discrimination, Clean Harbors, 146 F.3d at 21, and that he or she was disciplined or discharged because of engaging in protected activities. Byrd, slip op. at 4.
A. Protected Activity and Employer Awareness
The Prosecuting Party contends that Helgren's refusal to drive T416 on February 18, 2000 is protected by section 405(a)(1)(B)(ii) because he had a reasonable apprehension of serious injury due to the unsafe condition of the vehicle. It further contends that his refusal to drive is protected by section 405(a)(1)(B)(i) because operation of T416 on February 18, 2000 would have been in violation of a federal motor vehicle safety regulation.
1. Reasonable Apprehension of Serious Injury
In order to receive protection under this subsection (ii), an employee's apprehension of a serious injury due to an unsafe condition must be objectively reasonable based on the information available to him at the time of the work refusal and, despite seeking a correction of the condition, the employee must have been unable to obtain correction. Brinks, Inc. v. Herman, 148 F.3d 175, 180-81 (2nd Cir. 1998). See also Murray v. Air Ride, Inc., 1999-STA-34 (ARB December 29, 2000), slip op. at 5; Thom v. Yellow Freight System, Inc., Case No. 1993-STA-2 (Sec'y November 19, 1993), slip op. at 7. The existence of an actual safety defect need not be proven, and the fact that a subsequent inspection affirmatively shows that there was no mechanical defect does not remove the STAA's protection so long as the analysis of the situation encountered by a driver at the time of the refusal to drive compels the conclusion that the driver's perception of an unsafe condition was reasonable. Yellow Freight System v. Reich, 38 F.3d 76, 82-83 (2nd Cir. 1994); Jackson v. Protein Express, 1995-STA-38 (ARB January 9, 1997), slip op. at 2-3. Therefore, a careful examination of information available to Helgren on February 18, 2001 is in order.
The record shows that Helgren was aware from his own experience as well as discussions with other drivers that T416 had a history during the months of January and February 2000 of shaking, vibration or shimmy, steering drift and occasional brake malfunction. He knew that MCP had taken vehicle to Valley Freightliner and Dirk's for inspection and had been told that there was no mechanical or safety defect, and he knew that T416 had been to Tiny's Tire for new tires. Additionally, Helgren's personal examination of T416's front end on February 11, 2000 raised a question in his mind as to whether any work had been recently done on the front end, and he knew from driving T416 on February 11 that the shimmy was still present despite MCP's repeated efforts, including the two new steer tires installed by Tiny's. Helgren also knew that Gonzales had unsuccessfully attempted to get Valley Freightliner to look at the vehicle again on February 11 and that Jensen had told him and reported on his DVIR for February 17 that the vehicle still continued to shake and that DVIRs from the beginning of February were missing from the DVIR book. Finally, he knew, or information was available to him, that T416 had not been returned to Valley Freightliner for further inspection as of February 18, that no mechanic or other individual had certified on the original of Jensen's February 17 DVIR that the cited defects had been corrected or that correction was not necessary, that no driver had reported brake problems after Gallup adjusted the brakes on February 8 and that the persistent shaking, vibration or shimmy had not caused him or any other driver to lose control of the vehicle. Under the circumstances in which he found himself on February 18, I conclude that Helgren reasonably believed that the shaking, vibration or shimmy problem in T416 had not been corrected as of February 18. I further conclude that Helgren reasonably questioned whether in fact all of the inspection and mechanical work reportedly done by Valley Freightliner and Dirk's had in fact been performed since his visual inspection of the truck's front end did not disclose any obvious signs of recent repair work and since Jensen's report of missing DVIRs gave rise to a reasonable inference that something untoward might be afoot regarding T416's maintenance and repair history. However, I also conclude that Helgren did not have an objectively reasonable apprehension of serious injury due to an unsafe condition. Although Helgren testified at the
hearing that he felt himself to be at personal risk whenever he drove T416 after January 17, 2000, TR 401, I find it significant that no driver including Helgren testified that they had problems controlling or safely operating T416 because of vibration, shaking, shimmy or steering drift. In contrast, Jensen and Helgren both described problems with the brakes (pulling out of the lane and not properly locking) which any reasonable driver would regard as a potential safety hazard, but the information available to Helgren on February 18 showed that Gallup had done an adjustment on February 8 and that no driver had subsequently reported any braking problem. Thus, what Helgren knew on February 18 was that T416 had the same problem with shaking, vibration or shimmy and steering drift which had not previously compromised safe operation. Moreover, there is no evidence that MCP had a past history of lax vehicle maintenance, ignoring driver complaints or pressuring drivers to operate defective vehicles. Indeed, the record, as discussed above, shows that MCP runs a comprehensive vehicle maintenance and safety program, that it had promptly addressed the defects reported by Jensen and Helgren when they had "red tagged" T416 in the past and that it was continuing to pursue correction of T416's vibration and steering drift problems. Under the circumstances present on February 18, 2000, and noting that no other driver testified that they believed T416 to be unsafe, I conclude that Helgren did not have a reasonable apprehension of serious injury due to an unsafe condition and that his refusal to drive was not protected by section 405(a)(1)(B)(ii). In making this determination, I considered the evidence of record which reveals that Helgren and Gonzales had an acrimonious relationship and that there was a strained labor-management climate at the Puyallup terminal during the relevant time frame. However, as there is no evidence that these conflicts were related to vehicle safety, I find that the labor-management relationship would not have contributed to a reasonable apprehension of serious injury in connection with the operation of T416.
2. Violation of a Federal Regulation
The Prosecuting Party also alleges that Helgren's refusal to drive is protected because MCP violated the Department of Transportation's Federal Motor Carrier Safety Regulations ("FMCSRs") by failing to certify on Jensen's February 17, 2000 DVIR that the defects had been repaired or that repair was not necessary for safe operation In this regard, the FMCSRs mandate that motor carriers require their drivers to complete DVIRs:
(a) Report required. Every motor carrier shall require its drivers to report, and every driver shall prepare a report in writing at the completion of each day's work on each vehicle operated and the report shall cover at least the following parts and accessories:
- --Service brakes including trailer brake connections
- --Parking (hand) brake
- --Steering mechanism
- --Lighting devices and reflectors
- --Tires
- --Horn
- --Windshield wipers
- --Rear vision mirrors
- --Coupling devices
- --Wheels and rims
- --Emergency equipment
(b) Report content. The report shall identify the vehicle and list any defect or deficiency discovered by or reported to the driver which would affect the safety of operation of the vehicle or result in its mechanical breakdown. If no defect or deficiency is discovered by or reported to the driver, the report shall so indicate. In all instances, the driver shall sign the report. On two-driver operations, only one driver needs to sign the driver vehicle inspection report, provided both drivers agree as to the defects or deficiencies identified. If a driver operates more than one vehicle during the day, a report shall be prepared for each vehicle operated.
49 C.F.R. §396.11(a)-(b). The FMCSRs also impose specific requirements on motor carriers with respect to the actions required when a defect or deficiency is listed on a DVIR:
(c) Corrective action. Prior to requiring or permitting a driver to operate a vehicle, every motor carrier or its agent shall repair any defect or deficiency listed on the driver vehicle inspection report which would be likely to affect the safety of operation of the vehicle. (1) Every motor carrier or its agent shall certify on the original driver vehicle inspection report which lists any defect or deficiency that the defect or deficiency has been repaired or that repair is unnecessary before the vehicle is operated again. (2) Every motor carrier shall maintain the original driver vehicle inspection report, the certification of repairs, and the certification of the driver's review for three months from the date the written report was prepared.
49 C.F.R. §396.11(c) (underlining supplied). This certification requirement was the subject of a considerable amount of testimony at the hearing. Helgren steadfastly maintained that a mechanic's signature on the DVIR is required by section 396.(c)(1), and MCP's expert witness, Larry Blood, insisted that a written certification need not appear on the DVIR and that the certification requirement can be satisfied in a variety of ways including MCP's practice of attaching repair records to the DVIR and posting such records on a clipboard. Both views depart from the unambiguous language of section 396.11(c), and they are rejected by the Federal Motor Carrier Safety Administration's Regulatory Guidance for the Federal Motor Carrier Safety Regulations, 62 Fed. Reg. 16370 (April 4, 1997). Regarding the question of what constitutes the certification required by section 396.11(c), the Regulatory Guidance states,
A motor carrier or its agent must state, in writing, that certain defects or deficiencies have been corrected or that correction was unnecessary. The declaration must be immediately followed by the signature of the person making it.
62 Fed. Reg. 16427. And, the Regulatory Guidance makes it clear that the certification, with exceptions not relevant to the instant case, need not be made by a mechanic:
Section 396.11 does not establish minimum qualifications for motor carrier officials or agents who certify that defects or deficiencies on DVIRs are corrected. With the exception of individuals performing the periodic or annual inspection (§396.19), and motor carrier employees responsible for ensuring that brake-related inspection, repair, or maintenance tasks are performed correctly (§396.25), Part 396 of the FMCSRs does not establish minimum qualifications for maintenance personnel. Motor carriers, therefore, are not prohibited from having DVIRs certified by company officials or agents who do not have experience repairing or maintaining commercial motor vehicles.
62 Fed. Reg. 16428. Finally, the FMCSRs require that drivers take specific actions prior to driving a commercial motor vehicle:
Before driving a motor vehicle, the driver shall: (a) Be satisfied that the motor vehicle is in safe operating condition; (b) Review the last driver vehicle inspection report; and (c) Sign the report, only if defects or deficiencies were noted by the driver who prepared the report, to acknowledge that the driver has reviewed it and that there is a certification that the required repairs have been performed. The signature requirement does not apply to listed defects on a towed unit which is no longer part of the vehicle combination.
49 C.F.R. §396.13. I find that Helgren acted in compliance with section 396.13 on February 18, 2000 when he reviewed the prior DVIR which Jensen had completed on February 17 and noted that there was no certification, as required by section 396.11(c), that the defects or deficiencies cited by Jensen had either been repaired or that repair was not necessary before the vehicle was operated again. Helgren informed Gonzales that there was no mechanic's signature on the DVIR. Gonzales and Thomas responded by asserting that T416 had been checked out by multiple shops and that there was no mechanical or safety problem; however, neither they nor any other MCP official or agent placed the certification required by section 396.11(c) on the DVIR that the cited defects or deficiencies had been repaired or that repair was not necessary before Helgren was suspended for refusing to drive. The Regulatory Guidance anticipated precisely this type of scenario and provides the following interpretation regarding the carrier's and driver's respective responsibilities:
Question 1: If a DVIR does not indicate that certain defects have been repaired, and the motor carrier has not certified in writing that such repairs were considered unnecessary, may the driver refuse to operate the motor vehicle?Guidance: The driver is prohibited from operating the motor vehicle if the motor carrier fails to make that certification. Operation of the vehicle by the driver would cause the driver and the motor carrier to be in violation of §396.11(c) and both would be subject to appropriate penalties. However, a driver may sign the certification of repairs as an agent of the motor carrier if he/she is satisfied that the repairs have been performed.
62 Fed. Reg. 16428. Since Helgren obviously was not satisfied on the morning of February
18 that repairs had been performed or were unnecessary and since he had not signed the certification, it was incumbent on MCP to execute the required certification before T416 was operated again. In my view, Helgren's mistaken belief that section 396.11(c) requires certification by a mechanic does not excuse MCP's failure to comply with the clear and unambiguous requirements of section 396.11(c). I also reject, as contrary to the public safety and record-keeping purposes underlying the FMCSRs, MCP's arguments and the suggestions of its expert, Larry Blood, that it was somehow relieved of its certification obligations because Gonzales and Thomas assured Helgren that T416 was safe to drive and because Jensen's report of defects and deficiencies was "redundant" and did not raise a significant safety concern. There is no serious argument reported defects and deficiencies in a truck's front axle and steering, items listed by Jensen on February 17, would affect safe operation as envisioned by section 396.11. I find and conclude that Jensen's report of these defects or deficiencies triggered MCP's certification obligations under section 396.11(c), even if the reports were redundant of earlier drivers' reports. MCP could have easily remedied any potential violation of section 396.11(c) if Gonzales or some other agent had completed the necessary certification on the original of the DVIR before ordering Helgren to drive T416 under threat of discipline. Instead, they drew a line in the sand and placed themselves on the wrong side of that line as far as the FMCSRs are concerned. Accordingly, I conclude that inasmuch as driving T416 on February 18, 2000 without the certification required by section 396.11(c) would have constituted an actual violation of a commercial motor vehicle safety regulation, Helgren's refusal to drive is protected by section 405(b)(i) of the STAA. Yellow Freight System, Inc. v. Martin, 983 F.2d 1195, 1197-99 (2nd Cir. 1992) (Yellow Freight) (refusal to operate a vehicle when carrier refused to check and rectify a discrepancy in vehicle's identification number recorded on the DVIR was protected by the STAA since driving under those circumstances would have violated section 396.11 even though it subsequently was discovered that the discrepancy was a mere clerical error). I further conclude that MCP was aware of Helgren's protected activity through its agents Gonzales, Thomas, Lewis and Evert.
B. Adverse Employment Action
There is no dispute that Helgren was suspended without pay on February 18, 2000 or that his employment relationship with MCP was terminated effective February 25, 2000. Therefore, the element that the Complainant be subjected to an adverse employment action is satisfied.
C. Causal Connection
There is also no dispute that Helgren suspended because he refused to drive T416 on February 18, 2000, and the evidence shows that his refusal to drive was one of the two reasons relied on by MCP in its decision to terminate his employment. Accordingly, I conclude that the Helgren and the Prosecuting Party have met their burden of proving a causal connection between Helgren's protected activity and the adverse employment actions.
D. MCP's Asserted Legitimate, Nondiscriminatory Reasons for Termination
Where, as in this case, there is direct evidence that an adverse action is motivated, at least in part, by protected activity, the respondent may avoid liability only by establishing that it would have taken the adverse action in the absence of the protected activity. Caimano v. Brink's, Inc., 1995-STA-4, slip op. at 23-24 (Sec'y January 26, 1996); Assistant Secretary of labor and Kovas v. Morin Transport, Inc., 1992-STA-41 (Sec'y October 1, 1993), slip op. at 6. MCP has offered evidence in the form of the February 25, 2000 termination letter and Evert's testimony that it decided to terminate Helgren's employment because of his insubordinate refusal to drive T416 on February 18, 2000 and because he attempted to disrupt MCP's operations by making false statements regarding what had transpired at Tiny's Tire on February 11, 2000 and by using those false statements as an excuse for not driving. The insubordination can not form a legitimate basis for discipline since Helgren's refusal to drive was protected by the STAA. I also find that MCP's false statement charge does not withstand scrutiny. Gonzales's testimony convincingly establishes that Helgren truthfully related what had occurred at Tiny's Tire when he returned to the Puyallup terminal on February 11. TR 1254-1257. Significantly, Gonzales confirmed that Helgren did not claim that John or any other person at Tiny's had made any statement regarding the conditions of the king pins or T416. TR 1257. I have discredited Gonzales's testimony that Helgren never mentioned the lack of a certification on Jensen's February 17 DVIR when he refused to drive on February 18 and that he instead attempted to justify his refusal by claiming that John at Tiny's had opined that the king pins needed to be repaired or replaced, and I find that the "King pins R/R per John @ Tiny's Tire Service" statement that Jensen placed on the February 17 DVIR was a product of Jensen's conjecture as to what had occurred at Tiny's rather than the fruit of any misrepresentation by Helgren. On these facts, and since Gonzales knew that Helgren had not made false claims about what had transpired at Tiny's, I conclude that MCP's "disruption and false information" allegation is a pretext for discrimination. Accordingly, I conclude that MCP has not established that it would have terminated Helgren's employment in the absence of his protected activity.
E. Conclusion
Based on the foregoing findings and conclusions, I conclude that Helgren and the Prosecuting Party have proved by a preponderance of the evidence that MCP violated section 405(a) of the STAA by suspending Helgren without pay and terminating his employment because he engaged in refusal to drive activity protected by the STAA.
F. Remedy
Helgren, as a successful litigant under the STAA, is entitled to an order requiring MCP to take affirmative action to abate the violation, reinstate him to his former position with the same pay, terms and privileges of employment, and pay him compensatory damages, including back pay with interest calculated in accordance with 26 U.S.C. §6621 (1988). 49 U.S.C. §31105(b)(3)(A); Polgar v. Florida Stage Lines 1994-STA-46 (Sec'y April 18, 1995), slip op. at 3, aff'd sub nom Florida Stage Lines v. Reich, 100 F.3d 969 (11th Cir. 1996).
As relief, the Assistant Secretary seeks an order requiring MCP to: (1) reinstate Helgren to his former position with the same pay and terms and privileges of employment and to deem Helgren's employment continuous for the purposes of determining seniority, longevity of employment, retirement, vacation accrual, and other employment benefits; (2) pay Helgren back wages of $14.50 per hour, in the amount of $3,480.00 from February 18, 2000 through April 3, 2000 when he obtained comparable employment, in the amount of $6,380.00 from May 29, 2000 through August 14, 2000 while Helgren held himself ready to return to work pursuant to the preliminary reinstatement order issued by the Assistant Secretary, and such further amounts from August 22, 2000 until reinstated in his former employment; (3) pay Helgren compensatory damages in the amount of $582.75 representing medical costs incurred in July 2000 which would have otherwise been paid through MCP's group medical plan; (4) expunge all material and references to Helgren's discharge (5) provide neutral job references which will include Helgren's dates of employment, which will have been deemed continuous, job title, and final wage rate, to all potential employers; (6) take affirmative action to abate the violation by immediately discontinuing harassment and intimidation and all acts of reprisal against Helgren or anyone who acknowledges his or her support of Helgren for instituting or causing to be instituted any proceeding under or related to 49 U.S.C. §31105; and (7) posting a notice in conspicuous places in or about its facility, including all places where notices for employees are customarily posted, and maintain for a period of at least sixty (60) consecutive days from the date of posting, a Notice to Employees confirming the foregoing abatement to be signed by a responsible official of the Respondent and the date of the actual posting to be shown thereon.
MCP, on the other hand, contends that Helgren is not entitled to back pay for the period of time after he voluntarily left his employment with AWE on May 30, 2000. MCP additionally contends that Helgren had no real interest in being reinstated as shown by a settlement offer which he sent to MCP's attorney on June 5, 2000.
An award of back pay is mandatory once it is determined that an employer has violated the STAA. Hufstetler v. Roadway Express, Inc., 1985-STA-8 (Sec'y August 21, 1986), slip op. at 50, aff'd sub nom., Roadway Express, Inc. v. Brock, 830 F.2d 179 (11th Cir. 1987). However, it is well-established under the STAA that a wrongfully discharged employee has a responsibility to mitigate damages by diligently seeking substantially equivalent employment and by acting reasonably to maintain such employment, and an employee's failure to mitigate will reduce the employer's back pay liability by no less an amount than that which the employee would have made had he diligently sought and remained in interim employment throughout the back pay period. Cook v. Guardian Lubricants, Inc., 1995-STA-43 (ARB May 30, 1997), slip op. at 6. A respondent's noncompliance with a temporary reinstatement order does not suspend the complainant's duty to mitigate damages; however, once
reinstatement is ordered, a complainant reasonably can expect that the employer will obey the law and thus, for some period of time, may "mitigate" his damages by maintaining his readiness to return to work for the respondent. Spinner v. Yellow Freight System, Inc., 1990-STA-17 (Sec'y May 6, 1992), slip op. at 13-14. Applying these mitigation principles to the facts in this case, I find that Helgren acted diligently following his termination in securing employment at AWE and that he did not act unreasonably when he quit this job on May 30, 2000 after receiving the preliminary reinstatement order and remaining unemployed through August 14, 2000 when the District Court denied interim relief. However, I further find that Helgren was under a duty to diligently seek alternative employment after the District Court denied interim relief and, in view of the uncontroverted evidence in the record that suitable truck driving jobs were available through the union hiring hall at pay rates higher than the rate Helgren would have received at MCP, I will limit MCP's back pay liability to the periods of unemployment from February 18, 2000 through August 21, 2000. With this one modification, the relief sought by the Prosecuting Party is appropriate under the STAA, and it has been incorporated in the following recommended order.36 See generally Michaud v. BSP Transport Inc., 95-STA-29 (ARB October 9, 1997). Finally, I have reviewed the fee application submitted by the Claimant's attorney and, noting that the Respondent has offered no objection, I approve the requested fee of $527.50 as reasonably incurred in connection with the Complainant's litigation of his wrongful termination.
The Respondent, Minnesota Corn Processors, is ordered to
1. offer the Complainant, Kenneth Helgren, reinstatement to his former position as a driver/product handler with the same pay, terms and privileges of employment that he would have received had he continued working from February 18, 2000 through the date of the offer of reinstatement;
2. pay the Complainant, Kenneth Helgren, back pay at the rate of $14.50 per hour for the period from February 18, 2000 through April 3, 2000 and for the period from May 31, 2000 through August 21, 2000, less authorized payroll deductions, with interest thereon calculated pursuant to 26 U.S.C. §6621;
3. pay the Complainant, Kenneth Helgren, compensatory damages in the amount of $582.75 representing medical costs incurred in July 2000 which would have otherwise been paid through Respondent's group medical plan;
4. expunge from its personnel records any reference to the February 18, 2000 suspension of the Complainant, Kenneth Helgren, the February 28, 2000 Employment Termination Record and any other adverse or derogatory reference to the Complainant's protected activities on February 18, 2000;
5. provide the Complainant, Kenneth Helgren, neutral job references which will include the Complainant's dates of employment, which will have been deemed continuous, job title, and final wage rate, to all potential employers;
6. post copies of the Notice of Findings (Appendix A), attached to this Recommended Decision and Order, for 60 consecutive days in conspicuous places in and about its Puyallup, Washington facility so that drivers may read it; and
7. pay to the Complainant's attorneys, Greene & Lloyd, attorney's fees and costs in the amount of $527.50.
SO ORDERED.
Daniel F. Sutton
Administrative Law Judge
Camden, New Jersey
NOTICE: This Recommended Decision and Order and the administrative file will be forwarded for review to the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Ave., Washington D.C. 20210. See 29 C.F.R. §1978.109 (a); 61 Fed. Reg. 19978 and 19982 (1996).
1 Attorney Groseclose appeared briefly at the hearing on August 16, 2000 in support of a motion to quash a subpoena served on the Complainant, and to address motion for attorney's fees. The Complainant represented himself during the remainder of the hearing.
2 On July 5, 1994, section 405 of the STAA was renumbered and reorganized without substantive change and is now codified at 49 U.S.C. §31105. See Act of July 5, 1994, Pub.L. 103-272, §1(e), 108 Stat. 745, 990.
3 The documentary evidence admitted to the record will be referred to as "ALJX" for jurisdictional and procedural documents admitted by the Administrative Law Judge, "CX" for documents offered by the Complainant,"RX" for documents offered by the Respondent, and "JX" for documents offered jointly by the parties. References to the hearing transcript will be designated by "TR" followed parenthetically by the name of the witness where necessary to identify the source.
4 It appears that Helgren's complaint was amended during the OSHA investigation to include an allegation that he was discriminatorily fired by MCP because of his refusal to drive on February 18, 2000. The STAA regulations provide for inclusion of additional allegations developed during an OSHA investigation:
§ 1978.103 Investigation.(a) OSHA shall investigate and gather data concerning the case as it deems appropriate. (b) Within twenty days of his or her receipt of the complaint the named person may submit to OSHA a written statement and any affidavits or documents explaining or defending his or her position. Within the same twenty days the named person may request a meeting with OSHA to present his or her position. The meeting will be held before the issuance of any findings or preliminary order. At the meeting the named person may be accompanied by counsel and by any persons with information relating to the complaint, who may make statements concerning the case. At such meeting OSHA may present additional allegations of violations which may have been discovered in the course of its investigation.
29 C.F.R. §1978.103 (underlining supplied). MCP has raised no objection to consideration of the termination allegation. See generally White v. "Q" Trucking Co., 1993-STA-28 (Sec'y June 9, 1995), slip op. at 1-2 (adequacy of OSHA investigation no longer at issue before ALJ where objecting party is afforded de novo hearing).
5 Regarding the question of what process is due an employer confronted with a preliminary reinstatement order in an STAA proceeding, the Court held,
We conclude that minimum due process for the employer in this context requires notice of the employee's allegations, notice of the substance of the relevant supporting evidence, an opportunity to submit a written response, and an opportunity to meet with the investigator and present statements from rebuttal witnesses. The presentation of the employer's witnesses need not be formal, and cross-examination of the employee's witnesses need not be afforded at this stage of the proceedings.
481 U.S. at 264.
6 Complainant's exhibit CX 8 was withdrawn, and the Respondent's objection to the admission of Complainant's exhibit CX 9 (a "Wanted" poster allegedly prepared by William Thomas) was sustained on relevancy grounds and this document was excluded. TR 1090-1091. A related motion by the Respondent to strike testimony elicited from Mr. Thomas on cross-examination concerning this document was taken under advisement. Upon further reflection and review of the hearing transcript, the motion to strike is denied on the ground that the testimony in question provides the factual foundation supporting my ruling to exclude CX 9.
7 Counsel for the Prosecuting Party represented at the hearing that the government is not claiming that the Complainant's union activity was a motivating factor in his termination. TR 46-49
8 Evidence relating to this conflict was admitted over MCP's strenuous objection in view of its temporal proximity to the events leading to Helgren's termination and because I determined that exclusion of this evidence would foreclose a complete and accurate understanding of the relationship between Helgren and MCP management at the time of his termination. Cf. Etchason v. Carry Companies of Illinois, Inc., 92-STA-12 (Sec'y March 20, 1995), slip op. at 3 n.2. (holding that ALJ did not err in giving no weight to evidence of respondent's misconduct in an entirely different case brought before the National Labor Relations Board, noting that 29 C.F.R. §18.404(b) provides that evidence of other wrongs not admissible to prove character in order to show action in conformity therewith). In my view, the incident which occurred between Helgren and his immediate supervisor a little over a month before his termination is not an entirely different case and provides, at a minimum, relevant background to the events which occurred between that incident and Helgren's termination.
9 Helgren's contemporaneous account of the January 10, 2000 incident also related a subsequent incident that same morning when Thomas reportedly confronted Helgren about his hard hat:
I was then confronted by Bill Thomas on a hard hat issue that according to my Employee Handbook is legal. I choose to wear my own personal hat (hard) because it has a ratchet adjustment which releases tension and is much more comfortable. I have put union stickers on it since it is my hat. Bill tried to intimidate me on a one on one basis regarding this issue.I like my job working for MCP and always see to it that I go above and beyond whats [sic] expected of me and also seeing to it that customers are always satisfied.
I feel that I cannot discuss matters such as this with Kevin Lewis due to his poor attitude during the contract meetings. He wouldn't even shake my hand at the close of the meeting. I shouldn't have to be subjected with such intimidation on the job by anyone especially management. These are important issues and need to be resolved before it gets out of hand even further. The workplace should be a safe, productive environment not a hostile one with verbal harassment.
CX 4 (underlining in original). Helgren did not testify at the hearing regarding this alleged incident with Thomas.
10 Respondent also introduced a second statement which Gonzales testified that he submitted to MCP management at the same time as his response to Helgren's charges concerning the January 10, 2001 incident. TR 1285-1286. In this second statement, Gonzales alleged that he had previously confronted Helgren on October 24, 1999 about not being kept abreast of union matters and that Helgren had responded with a threat that if MCP employees went on strike and any employees crossed the picket line, union members would follow them and their wives, harass them and slash their tires. Gonzales also alleged that Helgren warned him to keep a certain employee, who is otherwise not identified in the record, away from him or that he, Helgren, would wait for this employee outside of the plant gate and beat him up. Gonzales's statement further alleges that Helgren called him shortly after making these threats and told Gonzales not to say anything because he (Helgren) could get in serious trouble. The statement concludes, "My concern is that if there is a strike and someone crosses the picket line, whether it is a union member or nonunion person, Ken Helgren is very capable of taking extreme and dangerous measures to carry out his threat against all employees and their families. In my opinion, Ken Helgren has a serious problem." RX 24a. Although called as a rebuttal witness, Helgren did not deny making these statements.
11 See 49 C.F.R. §396.11, discussed in detail, infra. The DVIR is referred to as a Drivers' Inspection Report in MCP's Driver Instructions. CX 2 at 3.
12 Cook's OSHA statement was not offered in evidence.
13 Helgren's OSHA statement was not offered in evidence.
14 In this regard, it is noteworthy that some details of the conversations between Helgren and Gonzales on February 18, 2000, the day Helgren was suspended, such as Helgren's accusation that Gonzales removed DVIRs from a DVIR book, were also not included in Helgren's OSHA statement even though Helgren and Gonzales both agreed that such an accusation was made. TR 304-305 (Helgren), 1272-1273 (Gonzales).
15 In this regard, Gonzales, a generally credible witness, was asked a series of narrowly tailored questions which he was able to truthfully answer in the negative but which, upon careful reading, do not directly contradict the testimony of Helgren, Cook and Moore:
TR 1211-1212 (italics added).
16 The seat was later replaced. The DVIRs for December 1999 contain no adverse driver comments regarding T416, JX 5 at 1-15, though Helgren testified at the hearing that he believed that he felt vibration in T416 as early as December 1999. TR 65.
17 Helgren also reported a separate problem with the trailer on this DVIR. MCP argues that Helgren's remark about hearing noise in the front end after Gallup had greased the spring pins on January 20, raises a serious question about the bona fide nature of the complaints listed on Helgren's DVIRs. MCP Brief at 17 n.11. However, Helgren didn't report a "clunk" or "bump" while cornering on January 24 and 25, as he had before Gallup greased the spring pins. Rather, he stated on January 24 that there was "knocking noise up front somewhere" and on January 31 that there was a "clunking noise" in the front end. Thus, the record is ambiguous as to whether Helgren was reporting the same problem. Given the facts, discussed infra, that other drivers continued to report front end problems after Gallup's January 20 service and, more importantly, that additional corrective measures were required after January 20 to eliminate the vibration in T416 and that Gallup subsequently discovered a missing steel balancing weight on the left front hub (a possible source of front end noise), I find that no objective basis has been established for entirely discrediting Helgren's comments on the DVIRs after January 18.
18 This remark was attacked on cross-examination at the hearing, and Helgren admitted that he had never seen and, hence, had no idea what the Freightliner specifications are for the front end and drive train of a vehicle such as T416. TR 208.
19 Moore was questioned on cross-examination regarding how often he made comments on a DVIR regarding a wobble in T416 and stated, "I think what it is, I made one and then I waited a while, because we weren't really supposed to keep doing it day-after-day, if I was in the truck again, or and then later on wrote it up again." Again, I note that this is consistent with the credited testimony that Gonzales had told some drivers that they did not need to write up the same problem repeatedly.
20 While Gonzales testified that Cook drove T416 on February 2 after Helgren refused to drive, TR 1247-1248, the record contains no DVIR form completed by Cook for T416 on February 2, 2000. It is additionally noted that Helgren testified that he did not place the check marks which appear on the DVIRs for February 3 and 4, indicating that the condition of T416 was satisfactory. MCP contends that this testimony is plainly deceitful because Gonzales denied ever adding the check marks in question (TR 1248-1250) and because the carbon copies of the DVIRs for February 3 and 4 (RX 2) also show the check marks. There is of course another possible explanation -- that is, someone took the original DVIRs for these dates back to the DVIR book after they'd been turned in by Helgren, inserted these originals in place over the carbon copies and added the check marks. Interestingly, several other DVIRs completed by Helgren for T416 during the December 1999 - February 2000 time frame contain no marks whatsoever next to the "CONDITION OF THE ABOVE VEHICLE IS SATISFACTORY" line, and only one DVIR in the record, December 23, 1999, contains a check mark resembling the check marks on the DVIRs for February 3 and 4, 2000. JX 5 at 10. As the record, including my observation of the demeanor of the respective witnesses, provides no reliable means of solving this mystery, I conclude that the evidence is inconclusive on who placed the check marks on the DVIRs for February 3 and 4, 2000.
21 The photocopy of the original or white DVIR sheet for February 8 also contains remarks about the air line on the suspension lowering and the left front brake needing adjustment. JX 5 at 47. However, Jensen testified that he had not written these remarks which he attributed to Gallup. TR 545. The carbon or vehicle copy of the DVIR for this date supports Jensen's testimony as it only contains the remark about the wiper blades, indicating that the other remarks were placed on the original after Jensen had removed it from the DVIR book and turned it in. RX 2.
22 Gallup had previously suspected that the spring pins might be worn and in need of replacement. JX 5 at 27.
23 Counsel to MCP attempted to impeach Moore's testimony at the hearing by means of the prior investigative statement he'd provided to OSHA. Although the statement was not offered in evidence, Moore acknowledged stating to the OSHA investigator that he "also heard some of the other guys talking about 416's brakes pulling, but I never felt that, so I couldn't say nothing." TR 516, 519. Contrary to counsel's suggestion that the testimony elicited from Moore on cross-examination regarding braking problems in T416 is inconsistent with his prior OSHA statement, I find that Moore credibly explained that he was referring in the OSHA statement to a violent, lane-shifting pulling in the brakes described by other drivers which he had not personally experienced, as distinguished from the slight pull or unevenness which he felt did not rise to the level of a safety concern.
24 It is noted that Helgren testified that reported this incident on a DVIR; however, counsel for the Assistant Secretary referred him to the DVIR for January 18, 2000, and Helgren stated that this was not the date on which the incident occurred. TR 85-86. Although the date of the incident was not subsequently clarified at the hearing, I find on the basis of Helgren's testimony and the remarks on the DVIR that he completed after his second trip on January 31, that he encountered the reported braking problem on January 31, 2000.
25 At this point, there was no mechanic's or company representative's signature or other indication on the January 31 DVIR that the cited defects had been corrected.
26 Helgren testified on cross-examination that he did not see Goerisch's signature on the January 31 DVIR when he reviewed the prior DVIRs before he drove T416 on February 3 and February 4 because he simply wasn't looking for it. TR 339-347. To the extent that this testimony suggests that Goerisch's signature was not on the January 31 DVIR on February 3 when Helgren examined the DVIR book prior to driving T416, it is rejected as incredible given Helgren's insistence on February 2 that he would not drive T416 until a mechanic had signed the DVIR. In fairness to Helgren, and upon careful reading of his testimony, I don't really think that he was making the patently absurd assertion that Goerisch's signature was not placed on the DVIR until sometime after February 4. Rather, this appears to me to be a case of a clever witness attempting to befuddle opposing counsel by answering questions posed as narrowly as possible while making no effort to correct the emerging obfuscation. If indeed Helgren did not look for Goerisch's signature on February 3 and February 4, it was because he had already been shown the signature on February 2, as Gonzales credibly testified.
27 Jensen similarly testified that it appeared to him from pre-trip inspections he conducted on T416 on unspecified dates after January 26, 2000 that nothing had been touched on the truck because he didn't see any marks or "shiny spots" on components such as the steering box, tie rod ends, and axle adjustments. TR 539-541. The record shows that after January 26, 2000, Jensen next drove T416 on February 8 and February 17, 2000. JX 5 at 47, 56.
28 An expert witness called by MCP, Larry Blood, ridiculed this technique as a "shade tree mechanic trick" and "totally invalid" as it would show movement in the wheel bearings rather than excessive play in the king pins. TR 1026-1027. However, Valley Freightliner's mobile mechanic, Brian Gallup, described the same procedure Helgren had employed at Tiny's as one method of inspecting king pins, although he added that one must tear apart the mechanism to inspect for wear to be certain. TR 1172-1173.
29 That Gonzales observed something more than the minimal shimmy he described at the hearing is strongly suggested by his testimony regarding the extent of his efforts to get Valley Freightliner to look at T416 even though he had not scheduled an appointment:
I went to the body shop with 416. I was still at the body shop when Ken walked over there. He told me that they couldn't see 416 because they you know, they didn't have the time to do it. So we got back into 416, after I got done, we got into 416. He drove back. I told him to go ahead and drive back to the service shop. I went in there and I talked to the girl at the desk and I told her, look, we're still getting this shimmy on it, can I have the truck checked out, you know, can I leave the truck here. She said we can't get you in today because we're booked solid. We're they were booked solid. So, I asked her, well, when do you think I might be able to get it in. She goes, maybe, you know, looks of it, it could be Monday. And I told her, I said, why don't you go ahead and tentatively schedule it in.
TR 1262-1263. Since Gonzales already knew that T416's front end and steering had been thoroughly checked out by both Valley Freightliner and Dirk's and that Helgren's inspection of the King Pins at Tiny's was invalid, TR1256-1258, it would make no sense for him to plead for an emergency admission unless he too observed something out of the ordinary in T416's performance.
30 The mystery of the reportedly missing DVIRs can not be solved on this record. Jensen was unwavering in his testimony that the DVIRs from February 1 to February 9, 2000 were not in the DVIR book which he examined in the cab of T416 on February 17 and which ran from late January 2000. TR 572-574, 576-577. However, the DVIR book for T416 covering the period of January 5, 2000 through February 9, 2000 was introduced in evidence and shows no signs of being disassembled, altered or otherwise tampered with. Nor are there any missing DVIRs. The next DVIR book for T416 (i.e., the book containing Jensen's February 17, 2000 DVIR) was not placed in evidence, so it is left to a matter of speculation, in which I will not participate, as to whether there was any irregularity in those documents. I do find that Jensen's testimony was consistent and sincere regarding what he observed on February 17, 2000, and I conclude that he genuinely believed that the February 1 to February 9, 2000 should have been in the DVIR book in T416's cab and were instead missing.
31 Precisely when and in what context Helgren mentioned "John" to Jensen was not explored further.
32 As discussed above, the "B"service on T416 was completed by Gallup on the evening of February 18, after Helgren had been suspended. Though Gonzales testified that he thought that the "B" service would be a way of checking on T416's continued shaking or shimmying, TR 1266, there is no clear explanation in the record for why T416 was not brought back to Valley Freightliner as Gonzales had originally planned to do on February 11.
33 Helgren testified that another truck, T406 which he had driven on his first delivery on February 18, was also available as it was not listed on the dispatch sheet for any other deliveries that day. TR 119. There was also a substantial amount of testimony elicited regarding the policy and practice relating to the "switching" of assigned tractor-trailer units at the Puyallup terminal. All witnesses essentially agreed that units were switched infrequently and that MCP policy required prior management approval.
34 Helgren stated that two other drivers, Shannon Hinkle and Kerry Fagen, were present during this conversation with Gonzales. TR 307. Neither was called to testify at the hearing.
35 Neither John nor Bill was called to testify.
36 I find that Helgren's settlement proposal, which was never accepted by MCP, does not constitute a knowing and deliberate waiver of his right to reinstatement. See Nidy v. Benton Enterprises, 1990-STA-11 (Sec'y November 19, 1991), slip op. at 17 n.15.
In the Matter of
ASSISTANT SECRETARY OF LABOR
FOR OCCUPATIONAL SAFETY AND HEALTH
Prosecuting Party
and
KENNETH D. HELGREN
Complainant
v.
MINNESOTA CORN PROCESSORS
Respondent
OALJ CASE NO. 2000-STA-000448
Notice of Findings regarding Termination of
Kenneth Helgren's Employment in February 2000
The Surface Transportation Assistance Act ("STAA"), 49 U.S.C. §31105(a)(1), provides that a person may not discharge an employee, or discipline or discriminate against an employee regarding pay, terms, or privileges of employment, because
The Federal Motor Carrier Safety Regulations ("FMCSRs") found at 49 C.F.R. Part 396 contain the following requirements:
The certification required by the FMCSRs is a statement, in writing, that any defect or deficiency reported on the prior driver's report, which would affect the safety of operation of the vehicle or result in its mechanical breakdown, have been corrected or that correction was unnecessary. The statement must be on the original of the DVIR which lists the defects or deficiencies, and the statement must be immediately followed by the signature of the person making it. The statement and signature may be made by the motor carrier, an agent of the motor carrier, a mechanic, or the driver if he or she is satisfied that the repairs have been performed. A DRIVER IS PROHIBITED FROM DRIVING A VEHICLE IF THE DVIR DOES NOT CONTAIN A STATEMENT, FOLLOWED BY A SIGNATURE, THAT ANY DEFECTS OR DEFICIENCIES LISTED ON THE DVIR, WHICH WOULD AFFECT THE SAFE OPERATION OF THE VEHICLE OR RESULT IN ITS MECHANICAL BREAKDOWN, HAVE BEEN CORRECTED OR THAT CORRECTION WAS UNNECESSARY.
Minnesota Corn Processors terminated Kenneth Helgren's employment because he refused to drive a vehicle on February 18, 2000 when the prior DVIR, which listed defects or deficiencies that would affect the safe operation of the vehicle, did not contain a statement certifying that the defects or deficiencies had been corrected or that correction was not necessary prior to the vehicle being operated again. Helgren's refusal to drive under these circumstances has been found to be protected by the STAA, and Minnesota Corn Processors has been found in violation of the STAA by terminating Kenneth Helgren's employment. Accordingly, Minnesota Corn Processors has been ordered to take affirmative action to abate this violation by offering to reinstate Kenneth Helgren to his former position with the same pay, terms and privileges of employment and by paying him compensatory damages, including back pay with interest.
THIS NOTICE IS POSTED BY ORDER OF THE ADMINISTRATIVE REVIEW BOARD, U.S. DEPARTMENT OF LABOR. IT SHALL BE POSTED FOR A PERIOD OF NOT LESS THAN 60 CONSECUTIVE DAYS IN CONSPICUOUS PLACES AT THE MINNESOTA CORN PROCESSORS PUYALLUP, WASHINGTON FACILITY, INCLUDING ALL PLACES WHERE EMPLOYEE NOTICES ARE CUSTOMARILY POSTED.