Appeal of Fred Fuller Oil Co.

744 A.2d 1141, 144 N.H. 607, 15 I.E.R. Cas. (BNA) 1872, 2000 N.H. LEXIS 5
CourtSupreme Court of New Hampshire
DecidedJanuary 31, 2000
DocketNo. 96-667
StatusPublished
Cited by8 cases

This text of 744 A.2d 1141 (Appeal of Fred Fuller Oil Co.) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Appeal of Fred Fuller Oil Co., 744 A.2d 1141, 144 N.H. 607, 15 I.E.R. Cas. (BNA) 1872, 2000 N.H. LEXIS 5 (N.H. 2000).

Opinion

HORTON, J.

The petitioner, Fred Fuller Oil Company, Inc., (Fuller Oil) appeals the decision of the New Hampshire Department of Labor (DOL) ruling that it violated the Whistleblowers’ Protection Act (Act), RSA 275-E-.2 (1999), when it discharged the respondent, [608]*608Barry S. Leonard, Sr. The DOL ruled that Fuller Oil illegally fired Leonard for reporting what he reasonably believed was a violation of the law. See RSA 275-E:2, 1(a). We vacate and remand.

From November 1992 until his discharge on January 12, 1996, Leonard was employed by Fuller Oil as a fuel-oil delivery driver. Throughout December 1995 and early January 1996, Leonard worked in excess of sixty hours per week due to harsh weather conditions, which had increased the demand for fuel oil. On January 10, 1996, the Federal Highway Administration of the United States Department of Transportation declared a regional emergency pertaining to the transportation of heating fuels in New Hampshire, thereby suspending certain maximum driving-time limitations for fuel-oil delivery drivers. See 49 C.F.R. § 390.23 (1998). Also on that date, Fuller Oil posted a notice at Leonard’s place of employment indicating that the company needed volunteer fuel-oil delivery drivers on Sunday, January 14, 1996. The notice did not mention the state of emergency.

On January 12, 1996, a supervisor informed Leonard that all employees would be required to work on January 14 and that any questions should be directed to the president, Fred Fuller. Later that afternoon, Leonard contacted Fuller to inform him that he could not work on that day. At the DOL hearing, Leonard testified:

... I told [Fuller] I need a day off, I was tired. My wife was coming down with another MS attack where her eyes get blurry and she was getting really stressed out from all the hours I was working and I need to spend some time with her and I had also planned a snowmobile trip for that Sunday afternoon.

Leonard further testified that after he stated that he would not work on Sunday, Fuller told him that if he refused to work on Sunday, he should return the truck and he would be fired. Shortly thereafter, Leonard dropped off his truck and did not return to work.

On March 7, 1996, Leonard filed a whistleblowers’ complaint with the DOL, see RSA 275-E.-4, I (1999), alleging that Fuller Oil wrongfully discharged him for reporting its violation of laws and regulations limiting the number of hours commercial drivers may work. See RSA 275-E:2, 1(a).

After hearing, the DOL issued a decision including findings that Fuller Oil had: (1) violated statutory and regulatory provisions regarding ill or fatigued commercial drivers and the mandatory “day of rest” for commercial drivers; and (2) discharged Leonard for his refusal to deliver oil on January 14. The DOL ruled that Fuller Oil had violated RSA 275-E:2 by discharging Leonard for [609]*609reporting what he believed to be Fuller Oil’s violations of law. The DOL reinstated Leonard’s employment with Fuller Oil retroactive to January 12, 1996, and ordered the payment of all past wages and fringe benefits and restoration of seniority rights.

On appeal, Fuller Oil argues that the DOL erred in: (1) finding that Fuller Oil required Leonard to “execute a directive which . . . violates any law or rule,” RSA 275-E:3 (1999); (2) ruling that Leonard was terminated for “reporting” a violation when the purported report did not include a reference to a “violation of any law or rule,” RSA 275-E:2, 1(a); (3) ruling that Fuller Oil violated the Act when Leonard had not satisfied the factual predicates necessary to invoke its protections, see RSA 275-E:2, II, :4, I; and (4) denying rehearing pursuant to RSA 541:3 (1997). Fuller Oil also argues that the decision of the DOL was clearly unreasonable, unlawful, and unjust.

We will not set aside an order of the DOL except for errors of law, unless we are satisfied, by a clear preponderance of the evidence, that such order is unjust or unreasonable. See RSA 541:13 (1997). The agency’s findings of fact are deemed prima facie lawful and reasonable. See id. “This presumption may be overcome only by a showing that there was no evidence from which the [agency] could conclude as it did.” Appeal of Briand, 138 N.H. 555, 558, 644 A.2d 47, 49 (1994).

We begin our analysis with the observation that, as it relates to this case, the Act protects two distinct activities on the part of employees. RSA 275-E:2, 1(a) (section two) prohibits an employer from terminating an employee who reports what the employee reasonably believes is illegal activity. RSA 275-E:3 (section three) prohibits an employer from terminating an employee who refuses to follow an illegal directive.

Leonard brought his complaint against Fuller Oil under section two, alleging that he was fired for reporting Fuller Oil’s violation of statutes and regulations limiting the number of hours a commercial driver may work. The DOL hearing officer who heard the case expressly decided the case under section two, concluding that Leonard “was illegally discharged as a result of his reporting of what he reasonably believed was a violation of the law.” The hearing officer’s primary findings, however, related to section three: “[T]he claimant. . . was actively discharged for his failure to make fuel oil deliveries in violation of RSA 275:33 [(1999) (the ‘day of rest’ statute)] and [49 C.F.R. § 392.3 (1998) (the federal ‘ill or fatigued operator’ regulation)].”

[610]*610Leonard conceded at oral argument that he brought his complaint below exclusively under section two and that he had raised issues relating to the illegality of Fuller Oil’s actions only to establish his “reasonable cause to believe” that the actions he reported were, indeed, violations of the law. RSA 275-E:2, 1(a). In light of this concession and the fact that Leonard did not complain of a section three violation below, we need not address Fuller Oil’s first argument.

Fuller Oil’s second argument is that Leonard’s complaint to Fred Fuller did not constitute a “report” under section two, which provides, in pertinent part:

I. No employer shall discharge, threaten, or otherwise discriminate against any employee regarding such employee’s compensation, terms, conditions, location, or privileges of employment because:
(a) The employee, in good faith, reports or causes to be reported, verbally or in writing, what the employee has reasonable cause to believe is a violation of any law or rule adopted under the laws of this state, a political subdivision of this state, or the United States ....

RSA 275-E:2, I.

Fuller Oil contends that Leonard’s subjective complaints to Fuller, without reference to any “violation of any law or rule,” do not constitute a “report” under section two. According to Fuller Oil, although citation to a particular statute or regulation is not necessary, an employer must be put on notice that the employee is blowing the whistle by objective reference to violation of a law.

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Bluebook (online)
744 A.2d 1141, 144 N.H. 607, 15 I.E.R. Cas. (BNA) 1872, 2000 N.H. LEXIS 5, Counsel Stack Legal Research, https://law.counselstack.com/opinion/appeal-of-fred-fuller-oil-co-nh-2000.