Long hard fight
OSHA fines failed carrier $250,000 over two fired OOIDA members

By Charlie Morasch
staff writer


The U.S. Department of Labor has ordered a failed California trucking company to pay two OOIDA members $250,000 in back pay and compensatory damages.

The Department of Labor’s Occupational Safety and Health Administration announced in late May that it has ordered Bertolini Trucking to pay the drivers $250,000 after an investigation revealed the drivers were fired for refusing to haul a trailer with a welded leaf spring.

“We will protect the rights of workers who take a stand on the side of safety under the law,” said Ken Nishiyama Atha, OSHA regional administrator in San Francisco. “Employees and the public are put at risk when laws protecting whistleblowers are ignored.”

OSHA determined that in 2008 Curtis Firebaugh and Jack Martin were both wrongfully terminated following their refusals to pull the trailer with a damaged leaf spring – although the company claimed they were fired for other reasons.

According to documents obtained by Land Line, the trailer in question broke a leaf spring in November 2007. Documents include witness statements that the trailer was then dispatched 28 times during January through March 2008, a period in which an FMCSA-initiated investigation by the Nevada State Highway Patrol was being conducted. However, the investigation found no evidence that the trailer had been used on a highway.

Firebaugh said the California and Nevada DOTs told him they couldn’t find the trailer until March 10, 2008, when it was having the damaged leaf spring replaced.

OOIDA Member Curtis Firebaugh was fired for allegedly failing to show up for a DOT-required drug test in the weeks following his first complaint about the damaged trailer.

OSHA agreed with Firebaugh that the company unfairly reported that Firebaugh failed to show up for drug tests, when his driving to the drug tests would have put him in violation of federal hours-of-service limits.

The company allowed Firebaugh to drive for five more weeks before firing him in January 2008 after he finally threatened to report the welded leaf spring to authorities. OSHA also ordered Bertolini Trucking to “notify several insurance consortia that it had provided incorrect reports” on one of the drivers.

“The investigation revealed that (Firebaugh) was told by (Bertolini’s) managers that he would be fired if he did not pull Trailer 129. … There is evidence that (Bertolini) used complainant’s legitimate refusal to take the drug and/or alcohol test on Nov. 29, 2007, as a pretext to terminate his employment,” according OSHA documents.

OSHA said Bertolini admitted and several witnesses confirmed that Bertolini was at fault for making it appear Firebaugh had failed to test, and apparently was trying to damage Firebaugh’s ability to work for other companies.

“(Bertolini) could have corrected the mix-up with the insurance company, but chose not to do so.”

OOIDA Member Jack Martin complained about the same trailer, and was later fired after refusing to drive a truck without proper snow chains, OSHA said in a statement.

Martin said he wished an investigation had removed the unsafe trailer and its welded leaf spring from the road – before the situation got out of control.

“I’m glad OSHA ruled in my favor,” Martin said. “OSHA was the only one that did anything about this, and for that I am grateful.”

Bertolini Trucking Inc. shut down in late 2008.

The company’s failure – combined with the personal bankruptcy of Brian Bertolini, who operated the trucking company – leaves the truckers’ chances of seeing that money in question. OSHA mailed Bertolini letters in early May, which state he had 30 days to respond to the labor agency’s findings.

Firebaugh said he was glad OSHA ruled in his favor, but said he is taking a realistic approach.

“It’s great – but it’s still just a piece of paper that says ‘you were in the right all along,’ ” Firebaugh said in May. “Brian Bertolini filed bankruptcy. My question is: What do we do now? What does this do for us?”

According to bankruptcy court filings, Brian Bertolini is currently working as a farmhand making $60,000 at A&R Bertolini Farms, Inc. with monthly expenses of $5,900.

Bertolini’s assets include a house worth nearly $500,000; IRA and mutual funds totaling $90,000; four cars; two snowmobiles and farm animals.

What he owes, however, is staggering in comparison.

Bertolini owes $2 million to the Internal Revenue Service; $478,845 to Highway 70 Industrial Park; $356,900 to A & R Bertolini Farms, Inc.; $342,500 to Lakeview Petroleum; $335,240 to Financial Federal Credit, Inc.; $178,589 to Roosevelt Petroleum; and several hundred thousand dollars to Bank of America for various loans and revolving lines of credit.

A longtime trucker, Firebaugh said his options are limited because of the bankruptcy. He has contacted numerous attorneys about his case, all of whom told him they couldn’t represent him.

“Every door I went to was slammed in my face,” said Firebaugh, who lives in Silver Springs, NV.

Firebaugh, who has three sons in the military, said he’s sustained his family by working a few odd jobs and selling equipment he’s stored up over the years.

“I’m excited,” he said. But I’m still broke.”

In May, OSHA announced that it was seeking stronger whistleblower protection laws. The agency said it received 2,160 whistleblower complaints in 2009, completing 1,947 of those investigations. It recommended litigation or otherwise found merit in only 3 percent of the complaints, dismissing 63 percent. LL