THE CASE OF TRUCKER STOPPED

Based on Cabesuela v. Browning-Ferris Industries of California, Inc.(1998) 68 Cal.App.4^th 101

[It is Thursday, November 2, 1995.Lynne Ashcraft, the district manager of North American waste management company Browning-Ferris, Inc. ("BFI"), is towards the end of a meeting with a small group of truck drivers she oversees to discuss safety and health issues.Among the truck drivers is Mr. Lupe Cabesuela, who was hired on May 23, 1995.Lupe is a convicted felon now on parole.It has been a rough week at BFI.That Monday, a male employee had murdered his female supervisor and then killed himself, but the meeting has not been called for that purpose.]

Lynne:OK.I think that covers the topics we needed to address.We have a few minutes to hear questions and comments.[Lupe raises his hand.]Yes, Lupe.

Lupe:I have a concern about the extended working hours truck drivers are driving. Many times, we work over 12 hours per day and more than 60 hours per week.It's not enough that we get paid the wages that are due us under that schedule.I believe this poses a serious health and safety hazard.

Lynne:I appreciate your concern, Lupe, but I ask that you trust the company and me to avoid scheduling you in such a way to put your health and safety in jeopardy.

Lupe:Trust you?Over trust we just had a killing.

Lynne:Lupe, that homicide-suicide earlier this week has nothing to do with this meeting today.

Lupe:I disagree.I think it has everything to do with a meeting on health and safety in our workplace.We're being pushed too hard and bad things happen in the workplace when workers are pushed too hard.

Lynne:I consider that a threat of physical violence against me as your supervisor.

Lupe:That was no threat.You didn't let me finish what I was saying.I was just making the point that . . .

Lynne [interrupting]:Save it.Effective immediately, you are suspended without pay.

Lupe:But, under California law, you can't suspend me for complaining about unsafe working conditions.I would be entitled to reinstatement and any lost wages and benefits if you do.

Lynne [sarcastically]:Oh, I had forgotten your personal experience with this state's legal system.Nothing in state law gives you the right to threaten me with violence.This meeting is over.

[Lupe and the other workers exit.It is now later that day and Lynne has called her regional manager.]

Lynne:Yes, that's exactly what he said.(Pauses to get response.)Yes, there were witnesses.(Pauses to get response.)Well, I did suspend him, but I think we need to make an example of him to other employees.(Pauses.)OK, so we agree.I'll fire Lupe on Monday for threatening me with violence.I'll also call the San Jose Police Department with this information.I suspect Lupe's parole officer will be contacted.That'll scare him, even if nothing comes of it.Thanks for the advice.Bye.

[Lynne hangs up and exits.]

What's the legal question?

who do you agree with the employer or the employee why, explain. who wins?