OSHA Orders Reinstatement of Memphis Truck Driver

[truckersjustice]

In a decision issued on February 23, 2011, the United States Department of Labor's Occupational Safety and Health Administration (OSHA), has ordered a Memphis-based towing company to reinstate a commercial driver, William Beecher. OSHA found that the employer unlawfully fired Beecher because he refused to drive a transport recovery vehicle that did not comply with DOT regulations. In Beecher v. United Auto Recovery and Memphis Auto Auction, OSHA also ordered Beecher's former employer to pay him back pay in excess of $38,000, emotional distress damages of $20,000, punitive damages of $40,000 and more than $10,000 in attorney fees.

On February 5, 2009, Beecher refused to drive a tow truck because the vehicle had a severe coolant leak which he had previously noted on numerous daily vehicle inspection reports submitted to the employer. An outside vendor for the employer had noted on a work order that the vehicle was "not driveable." It appeared to Beecher that the truck also had a blown head gasket. OSHA found that if Beecher had driven the truck, he would have violated 49 C.F.R. § 396.7(a) which operations of a vehicle "in such a condition as to likely cause an accident or a breakdown of the vehicle."

Although the employer claimed it offered Beecher an alternative vehicle to drive, a 4900 four-car hauler, Beecher did not have a license allow him to drive that larger vehicle. OSHA found that Beecher's refusal to drive the larger vehicle was legally protected because he would have otherwise violated 49 C.F.R. § 383.23(a).

OSHA found that an award of damages for emotional distress was appropriate because Beecher's discharge caused him to fall into "a deep depression" and that he and his family "have suffered mental anguish due to this financial stress." OSHA also held that punitive damages were warranted because of United Auto Delivery and Recovery and Memphis Auto Auctions' "reckless disregard for the law and complete indifference to [Beecher's] rights."

Beecher brought his claim under the employee protection provisions of the Surface Transportation Assistance Act, 49 U.S.C. § 31105, which prohibits retaliation against commercial drivers because they have filed safety-related complaints or because they have refused to drive in violation of a commercial vehicle safety regulations.

Beecher was represented by Paul O. Taylor of Truckers Justice Center, a law firm handling employment-related claims for commercial drivers based in Burnsville, MN. Mr. Taylor may be reached at 651-454-5800 or visit Home - Truckers Justice Center- Employment Lawyer

[Warlock]

Way to go!

[Chunker]

I'd like to know more about the STAA. Where can I find it online?

[GMAN]

I don't understand how a coolant leak or a possible bad head gasket would cause an accident. I don't understand why the guy could not find another job. I don't think that anyone should be forced to drive a vehicle that is unsafe, but I can't believe that he could have gotten such a settlement out of it. I suppose the company will now file bankruptcy to prevent from paying him. I don't understand why some people feel that they are entitled to get a free ride when all they need do is find another job. If he really wanted to work he could have easily upgraded his license. I suppose that he won't need to work now, providing he actually collects. I wonder how many others will now be out of work if his former company goes out of business.

[Chunker]

On February 5, 2009, Beecher refused to drive a tow truck because the vehicle had a severe coolant leak which he had previously noted on numerous daily vehicle inspection reports submitted to the employer. An outside vendor for the employer had noted on a work order that the vehicle was "not driveable." It appeared to Beecher that the truck also had a blown head gasket. OSHA found that if Beecher had driven the truck, he would have violated 49 C.F.R. § 396.7(a) which operations of a vehicle "in such a condition as to likely cause an accident or a breakdown of the vehicle."
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Here's where the company was wrong. They didn't care to fix the vehicle properly and would have left him sitting on the side of the road. Try and understand GMAN, that the driver sued for being fired for refusing to drive a vehicle that would not pass a DOT inspection with leaking coolant. Would you like to be told you're fired for not wanting to break a law?

[geeshock]

I don't understand how a coolant leak or a possible bad head gasket would cause an accident. I don't understand why the guy could not find another job. I don't think that anyone should be forced to drive a vehicle that is unsafe, but I can't believe that he could have gotten such a settlement out of it. I suppose the company will now file bankruptcy to prevent from paying him. I don't understand why some people feel that they are entitled to get a free ride when all they need do is find another job. If he really wanted to work he could have easily upgraded his license. I suppose that he won't need to work now, providing he actually collects. I wonder how many others will now be out of work if his former company goes out of business.

In this case I feal it was apropriate. Mabem the company will learn to fix thier equipment. I'm not a big person on sewing and yes, I'd still seak emplyment someplace else.

[truckersjustice]

Surface Transportation Assistance Act - Wikipedia, the free encyclopedia

[truckersjustice]

The coolant leak would result in overheating. Overheating could shut truck down creating a hazard on the highway.

[Orangetxguy]

Maybe the company does file bankruptcy...maybe not. Definitely the settlement doesn't provide enough money to not work. As for filing Bankrupt and not paying......I am willing to bet that since this was done at the federal level and not local or state....the settlement would be protected by the courts. I don't know...don't really care.

I am not a huge fan of suing.....but there are always exceptions that have to be made. Being fired because you refuse to break the law is one of those cases. Breaking down along side any roadway is dangerous...........more so in the Memphis area. Doubly so in the case of a towing service, as you are not just talking about the truck operator, but also the "client". Safety-wise and health-wise.

I for one, would not want to be sitting alongside I-40 or I-55, in that area, with my broke down car on a tow truck....that is broke down itself (I have seen this so many times recently and am always amazed by it)........and unable to provide AC when it is 90+ degrees outside......or heat when it is under 20 degrees either. Since this all took place fairly recently, the owner of the Tow Company should have been fully aware of the DOT regulations and his or her need to comply with them. Oil leaks and coolant leaks are OOS items. Both can also lead to "Enviromental" tickets for both the company and the driver....unlike the "old days" when leaks were totally ignored because they were accepted as common. It is one thing for a road truck to develop a leak while enroute and need to limp in to a shop. It is an entirely different deal, when the truck is waiting on a dispatch list and the needed repairs are known and being ignored.

just my opinion

[truckersjustice]

Orangexguy said:

Maybe the company does file bankruptcy...maybe not. Definitely the settlement doesn't provide enough money to not work.

Opie says: There was no settlement so there is no settlement to provide "enough money not to work."

Orangexguy said:

As for filing Bankrupt and not paying......I am willing to bet that since this was done at the federal level and not local or state....the settlement would be protected by the courts.

Opie says: No, but Memphis Auto Auction is not going to file bankruptcy I don't think.

Orangexguy said:

I am not a huge fan of suing.....but there are always exceptions that have to be made. Being fired because you refuse to break the law is one of those cases. Breaking down along side any roadway is dangerous...........

Opie says: Well said.

Paul Taylor
Attorney
Truckers Justice Center
900 West 128th Street, Suite 104
Burnsville, MN 55337
Tel. No. 651-454-5800

[Snowman7]

I don't understand how a coolant leak or a possible bad head gasket would cause an accident. I don't understand why the guy could not find another job. I don't think that anyone should be forced to drive a vehicle that is unsafe, but I can't believe that he could have gotten such a settlement out of it. I suppose the company will now file bankruptcy to prevent from paying him. I don't understand why some people feel that they are entitled to get a free ride when all they need do is find another job. If he really wanted to work he could have easily upgraded his license. I suppose that he won't need to work now, providing he actually collects. I wonder how many others will now be out of work if his former company goes out of business.

violated 49 C.F.R. § 396.7(a) which operations of a vehicle "in such a condition as to likely cause an accident or a breakdown of the vehicle."

The bottom line is they expected him to drive junk that would not pass inspection. Junk that endangered his life and the lives of others. Then they offered him equipment he is not qualified on or legally liscensed to drive. Also risking his life and lives of others. When he refused they fired him. Your answer would be he go find another job and the company just go about ignoring inconvienient laws and risking lives of the motoring public? I wouldnt expect anything else from you. Every man for himself right? I'm sure if you had it your way the employee would not only keep his mouth shut and drive the truck but also do it for minimum wage with no benefits and paid on a w2 or better yet cash under the table.

[Orangetxguy]

Orangexguy said:

Opie says: There was no settlement so there is no settlement to provide "enough money not to work."

Orangexguy said:

Opie says: No, but Memphis Auto Auction is not going to file bankruptcy I don't think.

Orangexguy said:

Opie says: Well said.

Paul Taylor
Attorney
Truckers Justice Center
900 West 128th Street, Suite 104
Burnsville, MN 55337
Tel. No. 651-454-5800

Ummmmmmm........Opie...your original posting contains this phrase.....

OSHA also ordered Beecher's former employer to pay him back pay in excess of $38,000, emotional distress damages of $20,000, punitive damages of
$40,000 and more than $10,000 in attorney fees.

I do not imagine those figures appeared out of "nowhere". A settlement was reached, between the three parties......correct?

OSHA does not arbitrarily levy fines and order payment.........do they??

[GMAN]

violated 49 C.F.R. § 396.7(a) which operations of a vehicle "in such a condition as to likely cause an accident or a breakdown of the vehicle."

The bottom line is they expected him to drive junk that would not pass inspection. Junk that endangered his life and the lives of others. Then they offered him equipment he is not qualified on or legally licensed to drive. Also risking his life and lives of others. When he refused they fired him. Your answer would be he go find another job and the company just go about ignoring inconvenient laws and risking lives of the motoring public? I wouldn't expect anything else from you. Every man for himself right? I'm sure if you had it your way the employee would not only keep his mouth shut and drive the truck but also do it for minimum wage with no benefits and paid on a w2 or better yet cash under the table.

The only thing that I recall that was wrong with the vehicle was a coolant leak. Tell me how that would have been an unsafe vehicle or junk? I have had coolant leaks on my trucks over the years. I usually don't let those things go. I don't want to take a chance of one of my trucks breaking down. That doesn't mean that my trucks are junk. Anyone can have a coolant leak. I am not saying that there could not have been other things wrong with the truck, but unless I missed something he refused because of the coolant leak. I am not sure that I would have driven it myself if it were bad enough. But, unless other facts were omitted from what has been stated, I don't see why he should have filed a lawsuit, much less prevailed in a court of law, providing the only offense was a coolant leak. If having a coolant leak is considered having an unsafe vehicle, you would have tens of thousands of unsafe vehicles on the road.

The driver was given an opportunity to drive a different vehicle. He apparently didn't have a license for it and didn't want to take a trip to his DAV and get the proper license. Instead of spending a couple of hours getting a license which would have helped his career, he chose to file a lawsuit. That is the problem I have with this guy. He apparently refused to take responsibility for his career and instead, filed a lawsuit. If it were me, I would have just gone and gotten the proper license and forgotten about a lawsuit.

It isn't a matter of every man for himself. It is a matter of taking responsibly for ones self. I agree that the company should have repaired the coolant leak. But, we have only heard one side of the story. It would be best to withhold an opinion until you can hear both sides.

You seem to think that just because a driver is unhappy that he is entitled to file a lawsuit. I don't understand why you always want to take the side of the driver, without knowing all the facts. As far as pay is concerned, I have always believed in paying people what they are worth. That means that some may not be worth minimum wage. Others could be worth $100M/year or more. I think that if you have a driver or any employee who is a good producer that you should find a way to compensate him in a way that offers the employee an incentive to produce and excel in a way that also makes sense to the company. Effort, dedication and hard work should be rewarded.

[Orangetxguy]

G.....You have your back up, because this guy filed a claim against a company which dismissed him..fired him...terminated him....for refusing to perform an unlawful act. In fact..for refusing to perform work which would have resulted in several unlawful acts. Snowman highlighted that portion of the 49 CFR, which coolant leaks fall under. "Breakdown". How many times have you seen an accident, which resulted because of a truck which was broke down alongside the road?? Probably more than you are willing to admit.

The OP's initial post states that after investigation, OSHA determined that the truck in question, with the coolant leak, had been written up, presumably on a VIR or some other company mandated maintanence form, numerous times, for the coolant leak.

As the owner of trucks which are required to comply with USDOT regulations, you know that coolant leaks, just as oil leaks, are "Out of Service" items. Have you fired drivers for refusing to operate one of your own trucks, which had been written up for such items?

I am a pretty flexable guy G. But OOS items are one of those things that get MY back up. If a company is going to operate on the highways, then that company, whatever type vehicle it chooses to operate, should accept the burden of properly maintaining the equipment that is used to produce revenue. THAT is what this entire post is about. The burden of responsibility.

A company fired an employee, wrongly, for refusing to operate the only equipment which that operator appears to have been qualified to operate, because the equipment was deemed "Not fit" to operate safely, as well as for refusing to operate equipment which he was not qualified to operate. A driver....an employee.... has the right to refuse to commit illegal acts in this country. Period. I would assume that when the operator in question was hired, the mangement knew exactly which equipment he was qualified, under DOT regulations, to operate on the road.

This is not the 1960's, the 1970's or the 1980's. Companies don't get to operate "Willy-nilly". A tow company especially, should take the maintenance of its equipment seriously. The "Customers" which that tow company services, rely on that equipment to perform adequately and safely. The lives of the customer and that customer's passenger(s) depend on that equipment.

I already pointed out that the tickets which can be issued, no longer over look leaks. Not only are those tickets encompassing the leak itself, but many many states, and Tennessee is one of them, are ticketing for the enviromental damages those leaks cause. If a truck blows a turbo and spews oil, or blows the motor and spills oil, or over turns and leaks oil and diesel, the driver of the truck as well as the owner of the truck, can expect such tickets. The Carrier can be forced to clean up all contaminated property.

The chemicals used to make coolant(mainly glycol), never go away. They soak into the ground water and they migrate with the flow of the underground aquifers. Companies can be made to clean up those aquifers.

Did this driver take it to far? Maybe. Maybe not. Obviously someone felt he was justified.

G, I have known men whom were fired for refusing to drive a truck, which had broken drivers seats. Fired for refusing to drive when they were out of hours. Fired for refusing to perform work which they were not qualified to perform. 90% of those drivers sued and got a lot more money than this guy got. The difference is, those men sued in District Court, in front of a jury, while this guy took a different approach. He went with OSHA.

Actually...on reflection......He deserves more respect than one would think, because he can legitimately claim to have been more interested in Public Safety, than in the almighty dollar. This tow company can expect to have Law Enforcement taking a closer look at its equipment .........at least for a while. Some of the tow trucks out there are nice and shiney, all chromed up and sparkling, while the reality is, they are junk under all that paint and chrome.

Go figure.


oooooh yeah. I have a special bone for tow companies. One tow truck cost me an entire new frontend last summer, when the operator used the wrong type equipment and tore my front end up. My mistake was continuing to operate my truck, for two weeks, after I first noticed that something was wrong. I paid the price. $2,850 in repairs. I was towed because of a blown radiator in July. Luckily I was not "DOT'ed" during those two weeks.

[Snowman7]

GMAN read this part again.

On February 5, 2009, Beecher refused to drive a tow truck because the vehicle had a severe coolant leak which he had previously noted on numerous daily vehicle inspection reports submitted to the employer. An outside vendor for the employer had noted on a work order that the vehicle was "not driveable." It appeared to Beecher that the truck also had a blown head gasket. OSHA found that if Beecher had driven the truck, he would have violated 49 C.F.R. § 396.7(a) which operations of a vehicle "in such a condition as to likely cause an accident or a breakdown of the vehicle."

What dont you get?

As for you and I we're just on opposite sides of the fence. As a truck driver and employee I am admittedly predjudice against the majority of trucking companies because I get sick and tired of hearing all the horror stories of bad treatment, equipment, unpaid time, no regard for home time, etc etc etc. I'm well aware of my good fortune in my current job and I'm also well aware of the fact that if I had to find another one the pickens are slim for a good employer.

As an owner and businessman I'm sure you feel the same way about all the lazy, no good, unreliable drivers you've had the misfortune of being associated with over the years. I'm willing admit these drivers are out there. You should be willing to admit that company abuses are also out there. I'm just sticking up for my team, and you yours. Simple as that.

[truckersjustice]

Orangexman said:

I do not imagine those figures appeared out of "nowhere". A settlement was reached, between the three parties......correct?

OSHA does not arbitrarily levy fines and order payment.........do they??

Opie says: There was no settlement. OSHA issued a decision awarding Will Beecher his job back, back pay, compensatory damages, and attorney fees. A settlement was not reached because United Auto Recovery/Memphis Auto Auction did not "settle" by agreeing to pay anything. The next step is for OSHA to seek enforcement of the order if there is no appeal. If there is an appeal, the reinstatement portion of the order is enforceable.

Paul Taylor
Attorney at Law
Home - Truckers Justice Center- Employment Lawyer

[One]

Gman always defends the companies....This case turned out well. Because this 1 man had the guts to push back, with the law of the land behind him, many others will be spared the grief. Companies that bend the law give the industry a bad name. I do not want to be seen as a hazard to the public, but the protector that i am.
Thank you William Beecher, thank you Paul Taylor and thank those that established OSHA and OSHA for doing thier job.