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USDOL/OALJ Reporter
Caimano v. Brink's
Inc., 95-STA-4 (Sec'y Jan. 26, 1996)
DATE: January 26, 1996
CASE NO. 95-STA-4
IN THE MATTER OF
JOSEPH A. CAIMANO,
COMPLAINANT,
v.
BRINK'S, INCORPORATED,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER OF REMAND
This case arises under Section 405 (the employee protection
provision) of the Surface Transportation Assistance Act of 1982
(STAA), 49 U.S.C.A. § 31105 (West 1994). Before me for
review is the Recommended Decision and Order (R. D. and O.)
issued on September 7, 1995, by the Administrative Law Judge
(ALJ). The ALJ concluded that Complainant Joseph A. Caimano
(Caimano) had failed to establish that Respondent, Brink's,
Incorporated (Brink's), had violated the STAA by terminating
Caimano for engaging in protected activity and he therefore
recommended that the complaint be dismissed. Following a
thorough review of the record, including the findings of the ALJ,
I reject the conclusion that the complaint lacks merit. Based on
the analysis provided herein, I conclude that Caimano has
established that Brink's violated the STAA by terminating him on
April 21, 1994 and I remand for a hearing on the issue of damages
due Caimano.[1]
I. Pertinent findings of fact
If the ALJ's findings of fact are supported by substantial
evidence on the record considered as a whole, they are
conclusive. 29 C.F.R. § 1978.109(c)(3)(1995). In the
instant
[PAGE 2]
case, however, the ALJ failed to render factual findings
pertinent to all dispositive legal issues before him. As
indicated in the analysis infra at Point II., the ALJ
failed to address the "complaint clause" of the employee
protection provision of the STAA, and evaluated the evidence of
record only within the context of a violation of the "work
refusal clause." In addition, although the ALJ summarized the
testimony of the witnesses at hearing, R. D. and O. at 4-8, he
failed to render credibility determinations, along with
supporting reasoning.[2]
Consequently, I find it necessary to render findings of fact
as required for the resolution of dispositive issues related to
the complaint clause in this case. It is also necessary to
render further findings of fact pertinent to the work refusal
clause and to reject those factual findings of the ALJ that are
not supported by substantial evidence based on the record
considered as a whole. See Moyer v. Yellow Freight System,
Inc., Case No. 89-STA-07, Sec. Dec., Oct. 21, 1993, slip op.
at 12-13; see generally Bechtel Const. Co. v. Secretary of
Labor, 50 F.3d 926 (11th Cir. 1995)(affirming Secretary's
reversal of ALJ's findings in case arising under the employee
protection provision of the Energy Reorganization Act, 42 U.S.C.
§ 5851 (1988); Simon v. Simmons Foods, Inc., 49 F.3d 386 (8th Cir.
1995)(affirming Secretary's reversal of ALJ's findings in case
arising under the employee protection provisions of the Federal
Water Pollution Control Act, as amended, 33 U.S.C. § 1367(a)
(1988), and the Solid Waste Disposal Act, 42 U.S.C. §
6971(a) (1988)). In so doing, I have engaged in a thorough
review of the evidence of record, including a complete review of
the hearing testimony,[3] and have provided explanation for any
necessary resolution of conflicts presented in that testimony.
See N.L.R.B. v. Cutting, Inc., 701 F.2d 659, 667 (7th Cir.
1983); Cotter v. Harris, 642 F.2d 700, 706-07 (3d Cir.
1981); Dobrowlosky v. Califano, 606 F.2d 403, 409-10 (3d
Cir. 1979). As background for the discussion to follow, I note
the following facts.
Caimano worked for Brink's from September 16, 1991 until
April 21, 1994. T. 47. During that time, he progressed from the
position of part-time driver to that of full-time driver and then
full-time messenger. T. 77-9. As a messenger, Caimano was
responsible for receiving the truck assigned and the valuables to
be transported daily from the vault staff, for personally
delivering such cargo to the clients on the route assigned, and
for returning the truck and return cargo to the vault staff at
the end of the route. CX 6, 7. While en route, Caimano was
positioned in the cargo compartment of the armored truck, which
was separated from the truck cab by a partition. T. 62, 70, 73,
81-2, 117, 356, 362; see CX 7.
On the day he was terminated, April 21, 1994, Caimano was
[PAGE 3]
subject to direction from the following Brink's personnel:
Billie Creamer (Creamer), vault cashier; David Espinosa
(Espinosa), vault supervisor; Gene Kelley (Kelley), assistant
branch manager; Terry Dawson (Dawson), branch manager; and Doug
Ellison (Ellison), general regional manager. T. 474-79
(Creamer), 482-84 (Espinosa), 506 (Dawson), 587-89 (Ellison),
690-92 (Kelley).
On the morning of April 21, 1994, Caimano was assigned a
truck that he considered to be unsafe and that he had complained
about previously. T. 118-20, 357-60. He was particularly
concerned about the safety of the truck as he was also assigned
an inexperienced driver that day, Jesus Rivera. T. 118.
Caimano raised objections about the truck's safety to
Creamer and Espinosa; Espinosa discussed with Caimano possible
steps that could be taken in response to his concern. T. 120-21,
361-65. Following exchanges with Espinosa, Dawson and Ellison,
Caimano was terminated. T. 121-23, 365-68 (Caimano), 508-16
(Dawson).
II. Pertinent legal standards and analysis
A. Coverage under the STAA
The STAA defines "employee" as follows:
a driver of a commercial motor vehicle (including an
independent contractor when personally operating a commercial
motor vehicle), a mechanic, a freight handler, or an individual
not an employer, who--
(A) directly affects commercial motor vehicle safety in
the course of employment by a commercial motor carrier; and
(B) is not an employee of the United States Government, a
State or a political subdivision of a State acting in the course
of employment.
49 U.S.C.A. § 31101(2)(West 1994); see 29 C.F.R.
§ 1978.101(d)(1995). Although the ALJ addressed the merits
of this complaint, he initially erroneously concluded that
Caimano would not be subject to coverage under the STAA. R. D.
and O. at 1-4, 8-9.
As noted by the ALJ, R. D. and O. at 2, it is not disputed
that Caimano, while employed with Brink's, was employed by a
commercial motor carrier subject to the STAA. RX 3;[4]
see, e.g., Howe v. Domino's Pizza Distribution Corp.,
Case No. 89-STA-11, Sec. Dec., Jan. 25, 1990. In addition, I
conclude that the record establishes that Caimano, in his duties
as a messenger for Brink's, directly affected commercial motor
vehicle safety. In a manner analogous to that of a freight
handler, which is specifically included within the statutory
definition, Caimano's duties as a messenger involved the loading
and unloading of the cargo being transported within the armored
truck and the securing
[PAGE 4]
of such cargo, usually currency and coin, within the messenger's
compartment of the truck. CX 7 at 2-3 (excerpt from Brink's
Driver's Training Manual of Standard Operating Procedures
addressing roles of messenger and driver in the unloading and
loading of the armored truck); T. 226-28 (Barrett); see also
49 C.F.R. § 393.100, et seq. (Subpart I of
Federal Motor Carrier Safety Regulations, Protection Against
Shifting or Falling Cargo).
Furthermore, the record establishes that, on the two person
Brink's delivery runs, the messenger rather than the driver was
in charge. CX 6 at 25 (excerpt from Brink's training manual); CX
7 at 3 (excerpt from Brink's Driver's Training Manual of Standard
Operating Procedures); T. 135-36 (Thompson), 234-35 (Barrett).
As the messenger was frequently responsible for directing the
specific route for the driver to follow, Caimano in his position
as messenger also impacted directly on motor vehicle safety in
that manner. CX 7 at 2-4 (excerpts from Brink's Driver's
Training Manual of Standard Operating Procedures); see CX
6 at 17, 19 (excerpts from Brink's training manual regarding use
of radio equipment); T. 62, 70, 81-2, 117, 356, 362-63 (Caimano
testifying to importance of providing such information to drivers
unfamiliar with a route), 135-36 (Thompson); cf. Gay v.
Burlington Motor Carriers, Case No. 92-STA-5, Sec. Dec., May
20, 1992 (holding that mechanic whose employment with a
commercial motor carrier directly impacted commercial motor
vehicle safety was covered by the STAA). I therefore reverse the
ALJ's conclusion concerning the question of coverage under the
STAA.
B. Violation of the STAA
The STAA protects covered employees from adverse action
taken by an employer in retaliation for the following protected
activity:
(A) the employee, or another person at the employee's
request, has filed a complaint or begun a proceeding related to a
violation of a commercial motor vehicle safety regulation,
standard, or order, or had testified or will testify in such a
proceeding; or
(B) the employee refuses to operate a vehicle because --
(i) the operation violates a regulation, standard, or order of
the United States related to commercial motor vehicle safety or
health; or (ii) the employee has a reasonable apprehension of
serious injury to the employee or the public because of the
vehicle's unsafe condition.
49 U.S.C.A. § 31105(a)(1)(A), (B)(West 1994).
To prevail in this proceeding, Caimano must establish that
Brink's took adverse action against him because he engaged in
[PAGE 5]
activity protected under Section 405 of the STAA. See, e.g.,
Yellow Freight System, Inc. v. Reich, 27 F.3d 1133 (6th Cir.
1994), aff'g Smith v. Yellow Freight System, Inc., Case
No. 91-STA-45, Sec. Dec., Mar. 10, 1993. The complaint filed by
Caimano in this case raised issues pertinent to both the
complaint clause, 49 U.S.C. § 31105(a)(1)(A), and the work
refusal clause, 49 U.S.C. § 31105(a)(1)(B). RX 1, 2, 3. As
noted by Brink's in its post-hearing brief, Respondent's Brief to
the ALJ at 6-7, Caimano has pursued violations under both the
work refusal and complaint clauses and evidence pertinent to the
issue of a violation under either clause was adduced at hearing.
See T. 332-33, 343-47 (Caimano). As indicated
supra, the ALJ analyzed the complaint under the work
refusal clause but failed to render conclusions of law pertinent
to the complaint clause. R. D. and O. at 8-13. Based on the
following analysis, I conclude that Caimano has established that
Brink's violated the STAA by retaliating against him for activity
protected under both the complaint clause and the work refusal
clause.[5]
Initially, I note that the ALJ properly questioned whether
Section 405 of the STAA would provide coverage for the raising of
security concerns that relate solely to the threat of criminal
activity posed by third parties, and not to the issue of health
and safety as related to the operation of commercial motor
vehicles on the nation's highways. R. D. and O. at 3-4, 11-12;
see H.R. Rep. 987, 97th Cong., 2d Sess. 4, reprinted in
1982 U.S. Code Cong. & Ad. News 3745, 3746; see Brock v.
Roadway Express, Inc., 481 U.S. 252 (1987); see generally
49 C.F.R. Chapter III, Subchapter B, Federal Motor Carrier
Safety Regulations (1995). I will therefore confine my analysis
to Caimano's raising of concerns that are related to conventional
motor vehicle safety.[6] In this case, Caimano raised concerns
about the following: 1)the lack of a base radio; 2)the lack of a
portable radio; 3)the lack of a radio charger; 4)malfunctioning
electric door locks; 5)the lack of interior gunports; and
6)protection from exhaust fumes.
The electric door locks in this case functioned as a back-up
system to the mechanical locking system on the armored truck, T.
93-4 (Caimano), 206, 224-26 (Barrett). I therefore conclude
that, on this record, malfunctioning electric door locks have not
been shown to relate to conventional motor vehicle safety.
See generally Dutile v. Tighe Trucking, Inc., Case No. 93-
STA-31, Sec. Dec., Nov. 29, 1993, slip op. at 5-7 (addressing
unsafe condition not in violation of a specific Federal Motor Carrier
Safety Regulation).[7] Similarly, the record does not establish
that the lack of interior gunports is related to conventional
vehicular safety. See n.8 infra. The issue of
exposure to exhaust fumes is clearly related to a Federal motor
vehicle safety standard, see 49 C.F.R. § 393.83
(Federal Motor Carrier
[PAGE 6]
Safety Regulation regarding exhaust systems), as is the issue of
holes in the truck floor through which, Caimano testified, T. 84,
96, the fumes were rising, see 49 C.F.R. § 393.84
(Federal Motor Carrier Safety Regulation regarding floors);
see also T. 130-31 (Thompson testifying regarding holes in
floor of Truck 201 cab).
In addition, the record contains evidence that Caimano,
while seated in the messenger, or cargo, compartment of the
armored truck, relied upon radio communication to provide
direction to the driver of the armored truck regarding the route
to be taken on the delivery runs. T. 62, 70, 73, 81-2, 117, 356,
362 (Caimano); see also CX 6 at 17, 19, 25 (excerpts from
Brink's training manual regarding use of radios); T. 508, 510
(Dawson).[8] The implications for the safe operation of an
armored truck in situations where a driver cannot clearly
understand the directions being provided by his supervisor in the
truck, the messenger, who is located in the cargo compartment
and completely separated from the driver by a partition, are
obvious.[9] See Dutile, slip op. at 5-7. I therefore conclude
that, to the extent that adequate radio communication was necessary
to safely and effectively direct the driver regarding the operation of
the armored truck, Caimano's complaints concerning the lack of
portable radios and chargers are covered under the STAA.[10]
1. Protected activity under the complaint clause
Internal complaints related to a Federal standard are
protected under the STAA. See Martin, 954 F.2d at 356-57.
Relevant to Caimano's protected activity under the complaint
clause, and as noted by the ALJ, R. D. and O. at 12, Caimano had
raised safety concerns at a "speak-out" meeting held by Brink's
for its employees on March 8, 1994. CX 12 (minutes of meeting
prepared by Brink's management);[11] T. 106-14 (Caimano), 285
(Rodriguez, testifying that Caimano expressed concern "about the
radios and the door locks, mostly. And the fuel smell.");
see T. 136-37, 160-62, 193-94 (Thompson, who testified in
exchange with ALJ that Caimano was outspoken at the "speak-out"
in a "courageous" rather than a "belligerent" way).
In addition, Caimano's uncontradicted testimony indicates
that he had raised various concerns relating to the vehicular
safety of the Brink's Tampa fleet of armored trucks from early in
his tenure with Brink's.[12] T. 94-5, 97. Finally, prior to
his raising of safety concerns on April 21, 1994, Caimano had
complained to Kelley about having to drive Truck 201 without
portable radios and with an inexperienced driver. T. 116-18,
361-63, 403-06 (Caimano).[13]
2. Protected activity under the work refusal clause
A work refusal based on a reasonable apprehension of serious
injury to the employee or the public under 49 U.S.C.
§ 31105(a)(1)(B)(ii) is protected if the employee has
[PAGE 7]
communicated the safety concern to the employer and the employer
has had a reasonable opportunity to correct the unsafe condition.
49 U.S.C.A. § 31105(a)(2)(West 1994); see, e.g., Reed v.
National Minerals Corp., Case No. 91-STA-34, Sec. Dec., July
24, 1992, slip op. at 4-7; see generally Hadley v. Southeast
Coop. Service Co., Case No. 86-STA-24, Sec. Dec., June 28,
1991, slip op. at 2-4 and cases cited therein (comparing
differing requirements for work refusal protection under the
"when" clause, 49 U.S.C. § 31105(a)(1)(B)(i), and the reasonable
apprehension or "because" clause, 49 U.S.C. § 31105(a)(1)(B)(ii)).
Assuming that Caimano did refuse to drive Truck 201 on April 21, 1994,
he has met the elements of communication to the employer and
reasonable apprehension of injury that are necessary for
protection under the work refusal clause.
Contrary to the ALJ's finding, R. D. and O. at 9, the
evidence does establish that Caimano was reasonably apprehensive
that driving Truck 201 on April 21, 1994 could result in possible
injury to himself or the public. The determination regarding
whether or not such apprehension is reasonable must focus on the
information available to the employee at the time of the work
refusal. Thom v. Yellow Freight System, Inc., Case No.
93-STA-2, Sec. Dec., Nov. 19, 1993, slip op. at 7.
The record supports Caimano's concern that riding in Truck
201 on April 21, 1994 would expose him to hazardous exhaust
fumes. There is ample evidence that the air conditioning system
in Truck 201 had been and continued to be defective on April 21,
1994,[14] and that ventilation was further impaired by the
sealed doors and windows of the armored truck. T. 96-7
(Caimano), 130-31, 141-42, 151-55, 197-98 (Thompson, who
testified that he noted defective air conditioning in Truck 201
on a Form 111, truck condition report, on 4/20/94); RX 17 (Form
111 completed by Threatts for 4/21/94, indicating that air
conditioning for Truck 201 needed repair); see T. 566-67
(Dawson); R. D. and O. at 8. There is also evidence to
corroborate Caimano's testimony that he had previously suffered a
headache and dizziness after a few hours of exposure to such
fumes in the messenger compartment. T. 131-47 (Thompson), 207-09
(Barrett); see T. 281 (Rodriguez, testifying that he had
not suffered adverse effects from fumes, although other employees
had complained of becoming ill because of such fumes).[15]
The record indicates no basis for an assumption by Caimano
on April 21, 1994 that the ventilation problem with Truck 201
would have been corrected since the previous occasion when he had
ridden in that truck.[16] Caimano's apprehension regarding
hazardous exposure to exhaust fumes in that truck was thus
reasonable.[17] Cf. Wiggins v. Roadway Express, Inc.,
Case No. 84-STA-07, Sec. Dec., Aug. 9, 1985 (adopting
decision of ALJ that
[PAGE 8]
reasonable apprehension had not been established based on
employee's standards, which were more stringent than either
applicable Federal or state standards for tires).
Caimano was also reasonably apprehensive about the lack of
portable radios to facilitate communication with the driver on
his route on April 21, 1994. Caimano's uncontradicted testimony
indicates that the driver, Jesus Rivera, was unfamiliar with the
particular route to be driven on April 21, 1994[18] and
therefore would have required extensive direction by Caimano from
his position in the messenger compartment.[19] T. 117, 356,
362; see T. 309, 494, 513, 630 (corroborating testimony of
Rodriguez, Espinosa, Dawson and Ellison that Caimano expressed
concern regarding communication with the driver on April 21, 1994,
and concern that he would suffer a headache and/or hoarseness if he
had to "scream" through the partition to the driver on the
route).
As noted supra, Caimano had expressed protected
safety concerns regarding Truck 201 to his supervisors on various
occasions prior to April 21, 1994, including complaints about
exposure to exhaust fumes in the cargo compartment and inadequate
radio equipment. In addition, the uncontradicted evidence
establishes that, on the morning of April 21, 1994, Caimano
expressed concern about the radio equipment available for Truck
201 and sought correction of that problem.[20] Thus, and
contrary to the finding of the ALJ, R. D. and O. at 10, the
evidence establishes that Brink's had been given ample
opportunity to correct the hazardous ventilation and radio
communication conditions posed by operation of Truck 201 on April
21, 1994, but had failed to do so.[21]
3. Knowledge of protected activity
As indicated in the foregoing discussion, uncontradicted
documentary evidence and hearing testimony establish that Dawson
and Ellison were present at the March 8, 1994 "speak-out" and
were also aware of Caimano's raising covered safety concerns on
other occasions. CX 12; T. 562-83 (Dawson), 629-53 (Ellison).
It is also undisputed that Dawson and Ellison agreed to terminate
Caimano after he expressed concerns about the safety of Truck 201
on April 21, 1994. T. 507-15 (Dawson), 629-35 (Ellison).
Consequently, the record establishes that Dawson and Ellison
possessed the requisite knowledge of Caimano's protected activity
under both the complaint clause and the work refusal clause at
the time that they terminated him.
4. Discriminatory intent
At hearing, Brink's presented the testimony of Dawson and
Ellison that Caimano had been terminated for insubordination and,
as Dawson stated, because Caimano had been a "difficult"
employee. T. 514, 577-81 (Dawson), 631, 650 (Ellison); see
R. D.
[PAGE 9]
and O. at 7, 12. As discussed supra, Caimano has
established that his objection to the assignment of Truck 201 on
April 21, 1994 was protected under the STAA. Consequently,
Brink's assertion that it terminated Caimano for insubordination
on April 21, 1994 is an effective admission that he was
terminated, at least in part, for engaging in protected activity.
See Blake v. Hatfield Electric Co., Case No. 87-ERA-4,
Dep. Sec. Dec., Jan. 22, 1992.
Where there is direct evidence that the adverse action is
motivated, at least in part, by the 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. Asst. Sec. and Kovas v. Morin Transport, Inc.,
Case No. 92-STA-41, Sec. Dec., Oct. 1, 1993, slip op. at 6. A
review of the record evidence indicates that the only additional
basis for terminating Caimano that was attested to at hearing,
i.e., Dawson's characterization of Caimano as a difficult
employee, T. 562-63, was clearly related to Caimano's history of
"whistleblower" activity while employed at Brink's.[22] The
evidence thus provides no defense on behalf of Brink's.
First, the record indicates no basis to conclude that Dawson
and Ellison would have terminated Caimano on the basis of his
performance alone. Although Dawson testified regarding one
occasion when Caimano had committed a violation of Brink's policy
by stopping during his route to complete a personal errand, T.
568-69, Dawson also testified that he had decided at the time
that he discovered the unauthorized stop not to discipline or
terminate Caimano because it was the "first time that he actually
ever did anything wrong . . . . ," T. 584-85; see T. 416-
18, 454, 464-68 (Caimano).[23] In addition, Dawson referred only to
other unspecified "complaints" about Caimano, T. 582-83; see
T. 568-69,[24] and the only complaint that Ellison referred
to was a complaint that Caimano was intentionally delaying the
completion of his route, which Ellison said he had concluded to
be unfounded, T. 622-24. Dawson also stated that he trusted
Caimano in the performance of his duties for Brink's. T. 576-77
(exchange with ALJ).[25]
Furthermore, Caimano testified that Dawson had discussed
the incident involving the unauthorized stop with him, but that
the incident had occurred six to eight months before Caimano's
termination. T. 454, 467; see T. 568-69 (Dawson). In
contrast, Caimano engaged in significant instances of protected
activity within the period approximately six weeks before
Caimano's termination, viz., when he complained about
Truck 201 publicly at the March 8, 1994 "speak-out", and when he
objected to Kelley about being assigned Truck 201 on a separate
occasion prior to his termination on April 21, 1994. See
Simon, 49 F.3d at 389
[PAGE 10]
(citing Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989)
regarding significance of temporal proximity between protected
activity and adverse action).
The ALJ stated that "There may be tension between the
people in the [Brink's branch] office . . . and those outside in
the trucks for a number of obvious reasons." R. D. and O. at 11.
At hearing, the ALJ questioned various witnesses regarding the
tension between "safety and profits". See, e.g., T. 266-
67 (Barrett), 497-98 (Espinosa), 649-50 (Ellison), 696 (Kelley);
R. D. and O. at 7; see also T. 509-12, 560 (Dawson,
testifying that the exchange with Caimano on 4/21/94 became more
"heated" because that was the first day that Brink's was serving
an important new client and punctuality was crucial). The ALJ
failed, however, to recognize the significance of this evidence
in the analysis of retaliatory animus toward Caimano. It is well established
that an employee who raises safety concerns "may come into conflict
with his employer by identifying problems that might cause added
expense and delay." See Mackowiak v. University Nuclear
Systems, Inc., 735 F.2d 1159, 1163 (9th Cir. 1984)(involving
nuclear inspector). The record in this case indicates that the
hostility toward Caimano was the result of his persistent
requests that Brink's correct safety defects in its Tampa
fleet.[26]
For example, Dawson testified that Caimano was "nit-picky,"
"you couldn't get him to work with you," and
"difficult," on "a professional level" but not on
"a personal level." T. 562-63 (exchange with ALJ). Dawson also
testified that he thought that he and Caimano "got under each"
other's skin, T. 573 (exchange with ALJ), but Dawson denied that
he and Caimano had a "personality conflict," T. 582 (exchange
with ALJ). Dawson also characterized Caimano as "very over-
conscious of his safety." T. 574. Dawson testified that other
employees complained about the trucks but "[n]ot in great detail.
. . ." T. 583. Espinosa testified that Caimano was a respected
individual at Brink's, with a reputation for complaining. T.
496-97 (exchange with ALJ). Ellison characterized Caimano as
"a nice guy," and acknowledged that he thought Caimano had acted
in good faith on April 21, 1994 in raising what Caimano believed to
be a legitimate safety issue. T. 651. Ellison stated that he agreed
to terminate Caimano on April 21, 1994 because "he was bound and
determined that he was going to take a stand at that point, and I
couldn't deal with that." T. 650.
In addition to the foregoing evidence, the testimony of two
other Brink's employees supports the conclusion that Brink's
management demonstrated hostility toward employees engaged in
protected activity. Edward Thompson (Thompson) and Phillip R.
Barrett III (Barrett), each of whom had been terminated by
Brink's, testified that they had complained about being assigned
[PAGE 11]
trucks that they felt were unsafe. Thompson, who had worked at
Brink's as a part-time driver,[27] testified that he had
objected to driving Truck 201 on April 20, 1994, and that his
repeated complaints, including those voiced in a discussion with
Dawson on April 20, about unsafe conditions in the Brink's trucks
had been futile. T. 143-47; see R. D. and O. at 7-8.
Thompson also testified that conditions noted on the Form 111, truck
condition report, which were completed by the drivers daily, "never
seemed to get fixed." T. 133-34. Also, Thompson stated that "nothing
really changed" in response to the concerns raised at the "speak-
outs." T. 137. Finally, Thompson testified that on April 21,
1994, following Caimano's objections to Truck 201 and his
subsequent termination, Kelley asked Thompson for a statement
that Truck 201 was safe, based on Thompson's having driven Truck
201 on the previous day. T. 137-38, 143, 174-80; see RX
5; T. 691-93 (Kelley, testifying that he had asked Thompson for a
statement regarding the condition of Truck 201 because Thompson
had not completed a Form 111 on 4/20/94 and acknowledging on
cross-examination that such request was unprecedented).
Barrett testified that he had worked as a messenger and a
driver for approximately two years with Brink's and that he was
terminated in December 1993 for refusing a truck that was
assigned to him despite his previous complaints about fumes in
the messenger compartment and a seat that hurt his back.[28]
T. 216-19, 226-39; see T. 143-47 (Thompson, testifying
regarding leg cramps caused by uncomfortable driver's seat).
Barrett also testified that, on several occasions, repairs that
he had requested had not been completed, T. 214-16, 228-36, including
one instance where he addressed his concern directly to Dawson
and was assured that the repair would be made, T. 209-10, 281-32.
Barrett also testified that he had been required, despite his
objections, to drive a truck that would not retain brake fluid
and which did, before the end of Barrett's route, lose its brake
fluid and become inoperable. T. 246-48. Finally, Barrett
testified that Brink's management attempted to intimidate
employees who raised concerns about unsafe trucks. T. 243;
see T. 97-99 (Caimano, testifying that Brink's supervisors
who assigned trucks demonstrated a "take it or go home" mindset
toward employees who complained about condition of trucks
assigned); R. D. and O. at 8. Following his termination, Barrett
wrote a letter to Brink's headquarters, because, he testified, he
felt that an audit of the Tampa branch should be conducted as
"things [we]re really just going haywire down there." T. 242-48,
263-68; see RX 6 (Brink's reply letter to Barrett).
The record, taken as a whole, clearly indicates that
Brink's management considered Caimano to be a difficult employee
because of the safety concerns he raised. I accordingly conclude
[PAGE 12]
that Brink's has failed to demonstrate that it would have
terminated Caimano in the absence of the protected activity that
he engaged in under both the complaint clause and the work
refusal clause of the STAA.
ORDER
I find that Complainant was discriminated against in
violation of Section 405 of the STAA by Respondent when he was
terminated on April 21, 1994. Accordingly, Respondent is ORDERED
to offer Complainant reinstatement to his position as a
messenger, or to a comparable position; to pay all back pay and
other appropriate compensation, with interest, as provided for
under the STAA; and to pay Complainant's costs and expenses
incurred in bringing this complaint, including a reasonable
attorney's fee. This case is hereby REMANDED to the ALJ for such
further proceedings as may be necessary to establish
Complainant's complete remedy, consistent with this decision.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1]
The regulation found at 29 C.F.R. § 1978.109(c) provides
that a final decision and order will be issued by the Secretary
under the STAA within 120 days after issuance of the decision and
order of the ALJ. In the normal course of events, that period
would have expired in this case on January 5, 1996. In the
interim since the ALJ's decision was issued on September 7, 1995,
however, operations within the Department of Labor have been
suspended, as the result of a lack of Congressional funding, on
two occasions, for a total of 17 days. In addition, Federal
offices located in the Washington, D.C. area were closed on four
days, January 7, 8, 9 and 11, 1996, because of the blizzard
conditions then existing. Inasmuch as the purpose of the 120 day
provision is to ensure expeditious action by this Department on
the processing of STAA complaints, see Brock v. Roadway
Express, Inc., 481 U.S. 252 (1987), and that purpose has been
served to the extent possible, the period provided by Section
1978.109(c) has thus been tolled and this decision is being
issued within the proper timeframe. See
Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984) (addressing
deference owed agency's interpretation of statute that it is
mandated to administer); Bechtel Const. Co. v. Secretary of
Labor, 50 F.3d 926, 932 (11th Cir. 1995)(discussing deference
due agency's reasonable interpretation of statute under
Chevron); Yellow Freight System, Inc. v. Martin,
954 F.2d 353, 357 (6th Cir. 1992)(discussing deference due
Secretary in construing Section 405 of the STAA if the
interpretation is reasonable, consistent with the statutory
mandate, and persuasive); see also Roadway Express, Inc. v.
Dole, 929 F.2d 1060, 1066-67 (5th Cir. 1991)(rejecting
employer's argument that 120 day provision is jurisdictional);
see generally Pauley v. BethEnergy Mines, Inc., 501
U.S. 680 (1991)(addressing statutory program being administered
by both the Department of Labor and the Social Security
Administration).
[2]
At hearing, however, the ALJ did comment upon witness demeanor
as it pertains to witness credibility, in response to Brink's
argument. T. 325, 446-47. Where pertinent, I have relied upon
these observations of the ALJ in rendering necessary findings of
fact. See NLRB v. Cutting, Inc., 701 F.2d 659,
667 (7th Cir. 1983); Ertel v. Giroux Brothers Transp., Inc.,
Case No. 88-STA-24, Sec. Dec., Feb. 16, 1989, slip op. at 12
and n.7.
[3]
At hearing, the ALJ properly overruled various objections to
evidence admissibility, see, e.g., T. 57-9, 110, 629,
based on the general rule that the ALJ should not refuse to admit
evidence on a technical basis but should consider factors
relevant to the reliability and probative value of contested
evidence in determining the weight to be accorded such evidence.
See Fugate v. Tennessee Valley Authority, Case No. 93-ERA-
0009, Sec. Dec., Sept. 6, 1995, slip op. at 3-4 (citing
Builders Steel Co. v. Commissioner of Internal Rev., 179
F.2d 377 (8th Cir. 1950)(addressing lessened significance of
technical rulings on evidence admissibility in non-jury trials));
see also 29 C.F.R.
§§ 24.5(e)(1), 1978.106.
[4]
The following abbreviations are used herein for references to
the record: Hearing Transcript, T.; Complainant's Exhibit, CX;
Respondent's Exhibit, RX.
[5]
The case is thus clearly distinguishable from Yellow Freight
System, Inc. v. Martin [Moyer], 954 F.2d 353 (6th Cir.
1992) in which the United States Court of Appeals for the
Sixth Circuit held that the Secretary erred in concluding that
the respondent employer had violated the complaint clause of the
STAA whereas the case had been adjudicated below under only the
work refusal clause. See Moyer, 954 F.2d at 358.
[6]
As reflected in the following analysis, some of the equipment
concerns raised by Caimano are pertinent both to commercial
vehicle safety covered by the STAA and to protection from the
threat of criminal interference as an armored truck messenger.
[7]
I note that a lack of properly functioning latches on vehicle
doors would be related to Federal regulatory provisions. See
49 C.F.R. § 393.203 (Federal Motor Carrier Safety
Regulation regarding cab and body components); 49 C.F.R. §
393.100, et seq. (Subpart I of Federal Motor Carrier
Safety Regulations, Protection Against Shifting or Falling
Cargo).
[8]
Although the record contains evidence indicating that interior
gunports may aid in the communication between the driver, seated
in the cab, and the messenger, seated in the cargo compartment of
the armored truck, when radio equipment linking the two employees
is not available, T. 143 (Thompson), the record also contains
conflicting evidence regarding the question of whether Truck 201
had an interior gunport, T. 284-85 (Rodriguez testifying that
Truck 201 had an interior gunport high on the passenger side,
rather than in the usual location in the center of the
partition). In view of my conclusion that Caimano engaged in
protected activity related to such communication concerns when he
questioned the lack of portable radio equipment, I need not
resolve the issue of whether Truck 201 lacked interior gunports
and that such condition interfered with effective communication
between the driver and messenger.
[9]
The testimony of Mario Rodriguez, a Brink's employee who had
worked there as a driver, messenger and cashier, T. 273,
contradicts the statements of Caimano and other witnesses
concerning whether a radio was strictly necessary for
communication between the cab and the cargo compartment of Truck
201, but corroborates the testimony of the witnesses who
indicated that a radio was generally necessary for the messenger
to effectively communicate directions to the driver of the
armored car. Rodriguez testified that there was a small hole in
the partition between the cab of Truck 201 and the cargo area,
and that the driver and messenger "should be able to" communicate
through that area, T. 290-91; but see T. 157-59 (Thompson,
testifying that, to his knowledge, no such hole existed in Truck
201). Rodriguez also testified that, when radios for both
personnel were unavailable in another truck that he was assigned,
he, as the messenger on that run, had contacted the Brink's Tampa
office and obtained permission to ride in the cab with the
driver, Ed Thompson, so that they could communicate concerning
the route. T. 297, 315-16, 321; see T. 164, 186-89
(Thompson); R. D. and O. at 7-8. Thus, although there is
contradictory evidence concerning the question of whether radio
equipment was necessary for communication between the
driver and the messenger within Truck 201, there is ample
support for Caimano's concerns regarding the need for portable radios
to facilitate effective communication between the messenger and the driver
concerning the route. T. 142-43, 157-59, 186-89 (Thompson), 312-
17 (Rodriguez); see R. D. and O. at 10 (concluding that
portable radios were useful although apparently not necessary);
but see CX 6 at 18 (excerpt from Brink's training manual
regarding radio equipment, which indicates that portable
transmitters are to be turned off when the messenger is inside
the truck, to conserve the battery); T. 643-44 (Ellison stating
that portable transmitters were not meant to be used to talk back
and forth to the driver).
[10]
/ Under the complaint clause, 49 U.S.C. §
31105(a)(1)(A), and the "reasonable apprehension" provision of
the work refusal clause, 49 U.S.C. § 31105(a)(1)(B)(ii), it
is unnecessary for Caimano to establish that operation of trucks
about which he raised concern would have been in violation of a
specific Federal provision. See Hornbuckle v. Yellow Freight
System, Inc., Case No. 92-STA-09, Sec. Dec., Dec. 23, 1992,
slip op. at 9-10 (citing Yellow Freight System, Inc. v.
artin, 954 F.2d 353, 356-57 (6th Cir. 1992)); see also
Dutile v. Tighe Trucking, Inc., Case No. 93-STA-31, Sec.
Dec., Nov. 29, 1993, slip op. at 5-7 and cases cited therein
(discussing unsafe conditions not directly in violation of
specific Federal regulatory provisions). As discussed in
Dutile and the cases cited therein, the existence of an
unsafe condition under the STAA is not contingent on the
violation of a specific Federal regulation, rule or order. Such
requirement would vitiate the purpose of the statute in
circumstances such as this, where the commercial motor vehicle is
being operated in an atypical manner that is not directly
addressed by the Federal regulations. The circumstances in this
case involve a sharing of the responsibility for operating the
vehicle by the messenger and driver, an arrangement that is akin
to that of a ship's captain and the helmsman or first mate.
See generally Rehling v. Sandel Glass Co., Case No. 91-
STA-33, Sec. Dec., Jan. 6, 1992, slip op. at 9-11 (broadly
construing "relating to a violation" provision of complaint
clause).
[11]
The record establishes that these minutes are not complete,
although reference to some comments made by Caimano are included.
Compare CX 12 with T. 106-14 (Caimano), 285
(Rodriguez); see T. 136 (Thompson, regarding incomplete
minutes), 618 (Ellison, testifying that such meetings, which are
required by Brink's national headquarters, are now tape recorded
to ensure accuracy of the minutes).
[12]
In its post-hearing brief filed with the ALJ, Brink's, in
urging that Caimano was not retaliated against for the protected
activity that he engaged in at the March 8, 1994 "speak-out,"
states that the "Complainant's role at that 'Speak-Out' pales
next to his like activities over the entire three years of his
employment." Respondent's Brief to the ALJ at 19.
[13]
Caimano testified that only weeks prior to his termination he
had expressed reluctance regarding operation of Truck 201 under
similar conditions to those that confronted him on April 21,
1994, and he had been promised by Kelley that he would not again
be assigned Truck 201 under such circumstances. T. 116-18, 361-
63, 403-06. Although Kelley denied having made such promise, T.
690-91, Caimano's allegation is consistent with the testimony of
Dawson that Caimano had complained about being assigned Truck 201
previously, although April 21, 1994 was "maybe the first time
[he] refused" to drive the truck. T. 564-65 (exchange with ALJ).
Such an exchange between Kelley and Caimano is also consistent
with the operation of the Tampa branch office as attested to by
other former Brink's employees. See discussion supra.
Furthermore, contrary to Brink's contention, Respondent's
Post-Hearing Brief to the ALJ at 24, 45, the documentary evidence
does not establish that Caimano was not assigned Truck 201
between March 8, 1994 and the date of his termination. The
timecards cited by Brink's in support of this assertion do not
reflect the truck assigned, and the vehicle condition and route
record forms are incomplete for Truck 201 for the March 8 to
April 21 period. See RX 9, 14, 15, 16, 17, 18(a), 18(b);
T. 533-40 (discussion among ALJ, Dawson, and both counsel
regarding issue of incomplete vehicle records being admitted into
evidence).
[14]
The record also indicates that defective air conditioning
systems were a problem in other trucks in the Brink's Tampa
fleet. T. 139-41 (Thompson), 207 (Barrett), 296
(Rodriguez).
[15]
Although the ALJ stated that corroborating evidence for
Caimano's apprehension regarding exhaust fumes in Truck 201 "was
scanty and not fully credible in the case of Ed Thompson," R. D.
and O. at 10, the ALJ failed to provide a basis for this
conclusion and failed to address the aforementioned evidence that
corroborated Caimano's statements regarding both the problem and
the adverse effects of exhaust fumes in Truck 201. I
therefore reject the ALJ's conclusion in this regard. See
Moyer v. Yellow Freight System, Inc., Case No. 89-STA-
07, Sec. Dec., Oct. 21, 1993, slip op. at 12-13. I also note
that Ellison's testimony regarding whether or not he knew of
ventilation problems in Truck 201 lacks consistency and is
directly contradicted, at least in part, by documentary evidence
of record. He initially testified, in an exchange with the ALJ,
that he "[a]bsolutely [did] not" know about any ventilation
problems with Truck 201, and that he would have had the floor of
Truck 201 patched had he known it had holes. T. 645. He
continued, however, by acknowledging that Caimano "might have"
told him of the symptoms that he was experiencing as the result
of exposure to exhaust fumes, and added "But he told me they were
coming from the fact that he was unloading by where the pipe came
out right there by the side door [of the truck]". T. 645.
Further, Ellison added that "[m]aybe a month, two months" before
April 21, 1994, he had engaged in a discussion about Truck 201
being an old truck with "a lot of problems" and that the issue of
fumes may have arisen at that time. T. 646. As noted,
infra, the record, including Ellison's testimony,
establishes that Ellison was present at the "speak-out" on March
8, 1994 when Caimano raised the fumes issue. T. 638; see
CX 12.
[16]
The record is replete with evidence indicating that requests
for repairs that were not absolutely necessary to the operation
of the trucks were typically not immediately responded to, if the
defects were corrected at all. See, e.g., T. 92, 112-16
(Caimano), 133-34, 137, 163 (Thompson), 214-16, 223-24
(Barrett). Regarding the Brink's mechanics, Rodriguez testified:
Q. How would you describe their attitude towards the trucks?
A. They're very conscientious.
Q. And when a defect or problem is reported to them, what is
their reaction to it?
A. They say they will get to it, you know, soon as they can on a
priority basis.
Q. But they will fix the vehicles?
A. Yes, sir.
Q. When they need fixing?
A. Yes, sir.
Q. Have you ever known them to send a truck they knew to be
unsafe?
A. Not unsafe with bad brakes or t[ir]es; no, sir.
Q. Well it depends on what --
A. Right.
Q. --one calls unsafe.
A. What we call unsafe.
Q. Yeah. All right. Mechanically defective; have you ever known
of that?
A. Not normally; no.
T. 300 (on cross-examination by Brink's counsel). In addition to
the foregoing testimony from Rodriguez, who, at the time of
hearing was a member of Brink's managerial staff, the record
contains other management testimony indicating an almost
exclusive focus on repair of conditions that would render the
armored trucks inoperable. For example, Ellison testified "[M]y
theory is we spend whatever it is to keep those trucks on the
road in a safe condition so that we never have breakdowns," T.
598, "I don't hesitate to spend anything when it means keeping a
truck on the road. I hate breakdowns. I hate service failures,"
T. 617, and that he threatened to fire Dawson and the mechanic at
one time if there were any trucks operating with bad exhaust
systems or faulty brakes, T. 599-600. In response to the ALJ's
inquiry regarding the failure to correct the exhaust problems
complained of with Truck 201, however, Ellison initially provided
a vague response, T. 646; see n.15 supra, then
replied, "If it was a minor problem and it was considered not to
be a major factor in that run's ability or that truck's ability
to make the run the next day, it may be [sic] wait two or three
days until a more major problem was taken care of," T. 647.
See also T. 616-17 (Ellison testifying regarding a $11,000
repair to correct a
leaking truck cab, although "It was not necessarily unsafe [for
the driver] to get wet.").
[17]
Brink's urges that Caimano's testimony regarding his inspection
of Truck 201 on the morning of April 21, 1994 is in conflict with
his deposition statements regarding that subject. Respondent's
Post-hearing Brief to the ALJ at 41-43; see RX 7. As
indicated supra, in view of the evidence establishing that
Brink's typically failed to respond to employee complaints
regarding truck defects of the type that contributed to Caimano's
apprehension on April 21, see n.16 supra,
reasonable apprehension in this case need not be based on an
inspection of Truck 201 by Caimano. Furthermore, with regard to
the issue of Caimano's credibility, I note that Caimano's
testimony at hearing is consistent with his deposition statements
regarding the facts essential to establishing a violation of the
STAA by Brink's. I also note the ALJ's statement regarding Caimano's
forthright response to questions at hearing. T. 325; see
n.2 supra. Moreover, I have relied on the
corroboration provided by other witness testimony in crediting
Caimano's hearing testimony, as indicated in this decision.
[18]
Although Rivera's timecard for the week ending March 20, 1994
indicates that he had driven route L-3 previously on one
occasion, RX 15, Caimano's concern that Rivera was an
inexperienced driver who was unfamiliar with the route on April
21, 1994 remains viable. It is also noteworthy that, when the
route was delayed by Caimano's termination, Rivera was replaced
by a more experienced driver, John Threatts. RX 12; T. 492-93
(Espinosa), 515-16, 523-25, 529-30 (Dawson); see R. D. and
O. at 6.
[19]
The testimony of Thompson, T. 190-92, Rodriguez, T. 297, 321,
and Ellison, T. 624, indicated that it was strictly against
Brink's policy for the messenger to ride in the cab with the
driver.
[20]
Furthermore, the actions that Brink's proposed to take in
response to Caimano's concerns about the lack of properly charged
portable radios on April 21, 1994 were inadequate. First, when
Espinosa did not have a properly functioning set of portable
radios available to send with Caimano for use in Truck 201, he
and Dawson offered to obtain radios from the office of another
Brink's supervisor and from a Brink's employee at a nearby bank.
T. 483-86 (Espinosa), 507-11 (Dawson). Caimano testified that he
was not satisfied by this offer because no charger would be
available to recharge the portable units when they lost power
later in the run. T. 120-23, 361-68; see T. 86-7; see
also T. 511 (Dawson). Caimano's concern on this point is
supported by other testimony of record indicating that, even with
limited use, the battery operated portable radios would last
seven to eight hours, T. 643-44 (Ellison, exchange with ALJ),
whereas the average length of Caimano's run was ten hours, T. 86-
7, 96 (Caimano); see T. 660-61, 663 (corroborating
testimony of Jones regarding length of Caimano's run and that
radio batteries "would go down" on occasion). It would also be
reasonable to consider an offer to send an experienced driver out
to meet Caimano in order to replace Rivera and to bring freshly
charged radios to be unsatisfactory, in view of the previous
failures of Brink's management to complete other corrective
actions that they had agreed to. T. 116-18, 361-63, 403-06
(Caimano); T. 209-10, 231-32 (Barrett); see also R. D. and
O. at 9 (questioning whether Brink's had established that Dawson
made such offer to Caimano on 4/21/94). Furthermore, Rodriguez'
personal offer to switch trucks with Caimano on that day, see
T. 311, would not have alleviated the hazard posed by
exposure to fumes in the cargo compartment of Truck 201. Cf.
Thom v. Yellow Freight System, Inc., Case No. 93-STA-
2, Sec. Dec., Nov. 19, 1993 (adopting standard set forth in
Pennsyl v. Catalytic, Inc., Case No. 83-ERA-2, Sec.
Dec., Jan. 12, 1984, regarding circumstances in which continued
work refusal loses its protected status following authoritative
investigation of alleged unsafe condition and discussion with
employee).
[21]
Brink's supervisors acknowledged that Truck 201, as one of the
oldest trucks in the Tampa fleet, was considered a "spare" truck
that no one wanted to be assigned. T. 301-03 (Rodriguez), 493-96
(Espinosa), 565-66 (Dawson). Truck 201 was sold by Brink's to
the St. Petersburg, Florida police department for $10 on November
11, 1994. RX 20; T. 548-50 (Dawson).
[22]
It is well established that, in employee discrimination cases,
"[t]he presence or absence of retaliatory motive is a legal
conclusion and is provable by circumstantial evidence even if
there is testimony to the contrary by witnesses who perceived
lack of such improper motive." Ellis Fischel State Cancer
Hospital v. Marshall, 629 F.2d 563, 566 (8th Cir. 1980),
quoted in Mackowiak v. University Nuclear Systems, Inc.,
735 F.2d 1159, 1162 (9th Cir. 1984).
[23]
The ALJ erroneously found that Caimano had refused to accept
impromptu assignments to work additional hours after his regular
shift, R. D. and O. at 7, when the record indicates that
Ellison's testimony on this point refers to another employee, T.
620-22; see T. 259-62 (Barrett).
[24]
In an exchange with the ALJ at hearing, Dawson stated that
Caimano had received "warnings," but that he was unable to recall
the nature of such warnings "without [Caimano's] personnel file .
. . ." T. 568-69. On cross-examination, Brink's counsel
questioned Caimano regarding written warnings he had purportedly
received. T. 467-68. Brink's produced no evidence or testimony
to contradict Caimano's denial that he had received any written
warnings.
[25]
The record contains documentary evidence of Caimano's having
received recognition from Brink's as a "safe driver" and "safe
worker." CX 8; see T. 74-6. Caimano's uncontradicted
testimony indicates that his promotion to the position of full-
time messenger within one year following his initial employment
as a part-time driver was expeditious by Brink's standards. T.
77-79; see also T. 135-36 (Thompson, testifying that
Caimano had trained him after he was hired by Brink's and that he
considered Caimano to be "quite a good messenger").
[26]
Although the improvements in truck maintenance that Ellison
attested to may indeed be laudable, see T. 596-99, 647,
the ALJ erred in relying on such improvements, specifically the
increase in the number of mechanics at the Tampa office, that
occurred after Caimano's termination, T. 647 (Ellison), 681-82
(Colina), in determining whether Caimano had established a
violation under the STAA, R. D. and O. at 9.
[27]
Thompson candidly acknowledged the impropriety, i.e.,
performing his duties as driver in a partial state of undress on
April 21, 1994, that led to his termination on April 22, 1994.
T. 164-65, 168-72; see 139-40, 192-93. Thompson also
testified, however, that the heat, the fumes and poor ventilation
in Truck 202, which he was driving on April 21, in addition to
his having driven Truck 201, which had similar problems, on April
20, as well as a heart condition that he was recovering from,
contributed to this action. T. 139-42.
[28]
The substance of Barrett's testimony indicates that he was a
completely straightforward witness. See Universal Camera
Corp. v. NLRB, 340 U.S. 474, 496 (1951); Dorf v.
Bowen, 794 F.2d 896, 901-02 (3d Cir. 1986); Kent v.
Schweiker, 710 F.2d 110, 116 (3d Cir. 1983); NLRB v.
Cutting, Inc., 701 F.2d 659, 666 (7th Cir. 1983); Ertel v.
Giroux Brothers Transp., Inc., Case No. 88-STA-24, Sec. Dec.,
Feb. 16, 1989, slip op. at 12 and n.7 (differentiating between
demeanor based credibility determinations and those based on the
substance of the testimony). As was the case with Caimano,
see n.24 supra, Brink's counsel unsuccessfully
attempted to discredit Barrett on cross-examination through
largely irrelevant and almost wholly unsubstantiated attacks on
his performance while employed by Brink's. See T. 240-62.
In cross-examination of Barrett, Brink's counsel asked Barrett to
identify "written warning" letters, which Barrett testified he
had not seen before. T. 252-62. At that time, Brink's counsel
stated that the documents would be authenticated by Dawson when
he testified and offered into evidence at that time. T. 253.
Although Dawson, in his role as branch manager and records
custodian, authenticated various records documents during his
testimony, Brink's counsel at no time referred to or attempted to
submit into evidence any documents relevant to the purported
written warnings raised by Brink's in Barrett's cross-
examination. T. 519-31, 533-41, 545-47, 548-50, 552-55. Indeed,
when Dawson was questioned on cross-examination by Caimano
regarding whether he would include a warning letter in an
employee's personnel file without first allowing the employee an
opportunity to read the letter, Dawson was vague and shifted the
attention to Kelley, his assistant manager, thus failing to
support Brink's counsel's reference to such letters. T. 556-58.
Furthermore, Brink's did not question Kelley regarding such
letters. See T. 690-701.
In response to the ALJ's inquiry, Barrett explained that he had
not filed a STAA complaint because he and his family "felt it was
better to live without the aggravation." T. 268. As indicated
by the ALJ's exchange with Barrett, former employees are covered
for purposes of filing complaints under the STAA and, as stated
by Barrett in response to Brink's counsel's comments implying
that Barrett would not be given a good employment reference by
Brink's, "[i]f they give [Barrett] a reference, they would have
to be fair about it." See Blackburn v. Martin, 982 F.2d
125, 130 (4th Cir. 1992)(addressing blacklisting); Gaballa v.
The Atlantic Group, Inc., Case No. 94-ERA-9, Sec. Dec., Jan.
18, 1996, slip op. at 3-4 and cases cited therein (discussing
requirement that employers not provide improper information to
employee's prospective employers regarding employee's protected
activity); see generally Apple Tree Chevrolet, Inc., 237
N.L.R.B. 867 (1978)(addressing threat to blacklist).
