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The Cold Hand of Judge Neil Gorsuch–Supreme Court Nominee, on Worker Rights

March 25, 2017 – Recently the Senate Judiciary Committee embarked upon confirmation hearings for the open position on the US Supreme Court vacated by the late Justice Antonin Scalia in February of 2016. The candidate chosen by President Trump is Judge Neil Gorsuch of the 10th Circuit Federal Appeals Court (Colorado). During these hearings some judicial candidates share their views when questioned by the Committee, sometime they do not. However, using the claim that issues asked may ‘someday’ come before the Court, Judge Gorsuch took refusal to answer questions posed to the extreme–not even explaining how he came to decisions he already made–cases he took part in deciding. One such case that should raise the ire of everyone who hauls goods for a living is: TransAm Trucking, Inc. v. Administrative Review Board (ARB), United States Dept of Labor (DOL) regarding trucker Alphonse Maddin. The opinion by the 10th Circuit Appeals Court was filed on August 8, 2016. The facts of this “frozen trucker” case are startling.

A trucker, Alphonse Maddin was hauling cargo for TransAm in the dead of winter through Illinois–January 2009, when the brakes on his tractor-trailer froze because of subzero temperatures. According to the “Opinion” written by one of the three circuit judges hearing the case, Judge Murphy who wrote for the panel consisting of Murphy, McHugh, of which the third panel member  Gorsuch wrote a dissent, which means he is in disagreement with the majority opinion, of the other two members of the 10th circuit appeals court who heard the case.

Usa, Court, Right, Paragraphs, Hammer

The facts found by the Appeals court are as follows:

“Maddin was employed by TransAm as a truck driver. In January 2009, [Mr. Maddin] was driving a tractor-trailer for TransAm on I-88 in Illinois. At approximately11:00 p.m., Maddin pulled to the side of the highway because he was unable to find the TransAm-mandated fuel station and his gas gauge was below empty. When he attempted to pull back onto the road ten minutes later, he discovered the brakes on the trailer had locked up because of the frigid temperatures. Maddin reported the frozen brakes to TransAm at 11:17 p.m. and was advised by TransAm’s Road Assist service that a repairperson would be sent to his location. While waiting for the repair truck, Maddin discovered that his auxiliary power unit (“APU” or “bunk heater”) was not working and there was no heat in the cab of the truck.
Maddin eventually fell asleep in the truck but was awakened at approximately 1:18 a.m.[2 hours later] when he received a telephone call from his cousin, Gregory Nelson. According to Nelson, Maddin’s speech was slurred and he sounded confused. When Maddin sat up, he realized his torso was numb and he could not feel his feet. He called Road Assist again and told the dispatcher his bunk heater was not working. He also told the dispatcher about his physical condition and asked when the repairperson would arrive. The dispatcher told Maddin to “hang in there.”
About thirty minutes after his second call to Road Assist [now 2 1/2 hours later], Maddin became concerned about continuing to wait in the freezing temperatures without heat. He unhitched the trailer from the truck, pulled the truck about three feet away, and called his supervisor, Larry Cluck. Maddin told Cluck he couldn’t feel his feet and was having trouble breathing because of the cold. Cluck repeatedly told Maddin to turn on the APU even though Maddin told Cluck several times it was not working.
When Maddin told Cluck he was leaving to seek help, Cluck told Maddin not to leave the trailer, instructing him to either drag the trailer with its frozen brakes or remain with the trailer until the repairperson arrived. Maddin did not follow either instruction but, instead, drove off in the truck leaving the trailer unattended. The repair truck arrived less than fifteen minutes after Maddin left. [At minimum, a total of 2 hours and 45 minutes after the first call.] Maddin drove the truck back to the trailer and met with the repairperson.
After the repairs to the brakes were completed, Maddin called Cluck for instructions on where to purchase fuel. During this conversation, Cluck threatened to write Maddin up for either a late load or for missing his fuel stop earlier. During a subsequent conversation, Cluck informed Maddin he was being written up for abandoning the trailer. Less than a week later, Maddin was fired for violating company policy by abandoning his load while under dispatch.
After his termination, Maddin filed a complaint with OSHA [Occupational Safety and Health Administration], an agency within the DOL {Dept. of Labor], asserting TransAm violated the whistle-blower provisions of the STAA [Surface Transportation Assistance Act of 1982 ] when it discharged [Maddin]. After the complaint was dismissed by OSHA, Maddin requested a hearing before a DOL ALJ [Administrative Law Judge]. 49 U.S.C. § 31105(b)(2)(B). The ALJ issued a written interim decision and order on October 26, 2012, ruling that Maddin was terminated in violation of the STAA. Specifically, the ALJ concluded Maddin engaged in protected activity when he reported the frozen brake issue to TransAm and again when he refused to obey Mr. Cluck’s instruction to drive the truck while dragging the trailer. The ALJ further concluded Maddin’s protected activity was a contributing factor in TransAm’s decision to fire him because Maddin’s refusal to operate the truck while dragging the trailer was “inextricably intertwined” with TransAm’s decision to terminate him for abandoning the trailer at the side of the highway. The ALJ provided Maddin with an opportunity to present evidence of economic damages.
The ALJ issued a final decision and order on January 7, 2013, awarding backpay to Maddin in an amount calculated from the date of his discharge to the  date of his reinstatement. Included in the award were per diem travel allowances which the ALJ concluded were part of Maddin’s compensation. Maddin’s interim earnings were not deducted based on the ALJ’s finding that those earnings were more than offset by interim expenses that Maddin would not have incurred but for his termination. The ALJ also ordered TransAm to take steps to remove all negative reports made to any entity about Maddin or his termination. TransAm appealed the ALJ’s decision to the ARB. The ARB [US Dept. of Labor Administrative Review Board] affirmed the ALJ’s interim and final decisions, concluding that substantial evidence supported all the applicable findings. The Board also affirmed the amount of backpay.”
Based upon the foregoing, both the Administrative Law Judge who heard the case as well as the entire Administrative Review Board (ARB) heard the case and came to the same conclusion: that the company by their actions put the trucker, Maddin in jeopardy and as a result he was wrongfully discharged and owed backpay from the date of his discharge to the date of his reinstatement. plus travel allowances, and was ordered to remove negative reports made to anyone inquiring about Maddin or his termination.

How the Administrative Judge and Administrative Review Board of the US Dept. of Labor–Came to Their Conclusion:

Justice, Statue, Lady Justice

There is a complaint provision in the law, the Surface Transportation Assistance Act (STAA) of 1982, specifically allows a complaint to be filed against a company. The complaint provision of the STAA prohibits an employer from discharging an employee because the employee “has filed a complaint or begun a proceeding related to a violation of a commercial motor vehicle safety or security regulation, standard, or order.” 49 U.S.C. § 31105(a)(1)(A)(I).
During the Administrative Trial before the Board (ARB) the Board upheld the Administrative Law Justice’s (ALJ’s) finding that trucker Maddin engaged in protected activity under this provision when he notified TransAm about the frozen brakes, concluding the finding was supported by substantial evidence. TransAm challenges the ARB’s conclusion that “uncorrected vehicle defects, such as faulty brakes, violate safety regulations and reporting a defective vehicle falls squarely within the definition of protected activity under STAA.”
Moreover, there is an an “alternative provision is codified at 49 U.S.C. § 31105(a)(1)(B)(ii) and makes it unlawful for an employer to discharge an employee who “refuses to operate a vehicle because . . . the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle’s hazardous safety or security condition.” For an employee’s apprehension of serious injury to be reasonable, the employee must show that a reasonable individual in the employee’s circumstances “would conclude that the hazardous safety or security condition establishes a real danger of accident, injury, or serious impairment to health.” Id. § 31105(a)(2). An employee seeking protection under this provision must also show that he “sought from the employer, and [was] unable to obtain, correction of the hazardous safety or security condition.”

 It is this provision that Judge Gorsuch shows his true metal…

 All the tribunals, the ALJ-the judge, the ARB-the Board of the Dept. of Labor (DOL), all agreed that Mr. Maddin was due compensation for his injury–except Judge Gorsuch. He wrote a five page dissent stating why Mr. Maddin who almost froze to death is not entitled to compensation. His reasoning is a technicality in the law. He argues that because Mr. Maddin directly disobeyed his superiors, and detached the cab of the truck and drove a way, because it was “unpleasant” in the cab and because it was “cold” he put in motion the vehicle he claims should not be driven and according to the verbatim words of the statute, drove the vehicle. He curiously omits that Mr. Maddin had hypothermia, was slurring his words when he was awaken after a phone call which woke him, and that he needed to move the cab to try and generate some heat and/or get help. His opinion is what the law would deem a “callous disregard” to the facts of the case, that Mr. Maddin took efforts upon himself–engaged in ‘self-help’ to save his own life–which is worth much more than cargo left attended for 15 minutes to which he returned. Moreover, Judge Gorsuch when questioned in the hearing by Sen. Al Franken of what he would do if he were in Mr. Madden’s situation, he said he did not know because he wasn’t in his shoes. Well the purpose of the Judiciary is to put oneself in the shoes of the victim to determine what the “reasonable person” might do in such a situation. If a judge can’t do that–he has no business being a judge. And the fact that in his analysis, the Judge Gorsuch separated the cab and the trailer issue to make the claim that the cab shouldn’t be driven when in fact, it was the trailer brakes that were frozen and not the cab–is a blatant abuse of discretion given to a judge.
Fortunately, the two other judges on the panel did not agree with Gorsuch, and Mr. Maddin was allowed to obtain his pay and  restore his reputation that had been tarnished by TransAm, and would prevent him from obtaining another trucking job. This is a clear case of judicial overreaching. Had Mr. Maddin died, TransAm would be looking at paying Mr. Maddin’s widow and children for their providing faulty equipment, for their lack of care and attentiveness to his concerns and could be charged with wrongful death if not criminal wrongdoing. TransAm and Gorsuch are complicit in this act of cruelty. And, without more, in my book–the book of ethics–this should disqualify him not only from serving on our nation’s highest Court, but from even serving in his current capacity as an appellate court judge. Teamsters and AFLCIO the Senate Confirmation Committee needs to hear from you!

To read the entire case, click here.

For information on how large Tractor Trailers can be allowed on American Roads to determine danger of having a driver in a vehicle that is deemed ‘unsafe,’ click here.