ARB CASE NO. 02-071
ALJ CASE NOS. 01-STA-22
01-STA-29
DATE: October 31, 2003
In the Matter of:
JERRY L. MONDE,
COMPLAINANT,
v.
ROADWAY EXPRESS, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant: Paul O. Taylor, Esq., Truckers Justice Center, Eagan, Minnesota
FINAL DECISION AND ORDER
This case arises under Section 405 (employee protection provision) of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C.A. § 31105 (West 1997), and the regulations set out at 29 C.F.R. Part 1978 (2003). Relevant Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation (DOT) regulations appear at 49 C.F.R. Parts 392, 395, 396, and 397 (2002).
Complainant Jerry L. Monde filed complaints of unlawful discrimination against his employer Roadway Express (Roadway) on July 17 and October 13, 2000, which after investigation the Occupational Safety and Health Administration found to be without merit. Following timely objections, an Administrative Law Judge (ALJ) heard the complaints on November 13-15, 2001. On April 26, 2002, the ALJ issued a Recommended Decision and Order (R. D. & O.) denying the complaints. Monde petitioned for review of the R. D. & O. and filed a brief in opposition. Although Roadway participated before the ALJ, it declined to file a brief on review. We affirm the ALJ's decision as described below.
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Jurisdiction and Standard of Review
This Board has jurisdiction to review the ALJ's recommended decision under 49 U.S.C.A. § 31105(b)(2)(C) and 29 C.F.R. § 1978.109(c). See Secretary's Order No. 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002) (delegating to the ARB the Secretary's authority to review cases arising under, inter alia, the STAA).
Pursuant to 29 C.F.R. § 1978.109(c)(3), an ALJ's factual findings are conclusive if they are supported by substantial evidence on the record considered as a whole. BSP Trans, Inc. v. United States Dep't of Labor, 160 F.3d 38, 46 (1st Cir. 1998); Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1063 (5th Cir. 1991).
In reviewing an ALJ's conclusions of law, the Administrative Review Board, as the designee of the Secretary of Labor, acts with "all the powers [the Secretary] would have in making the initial decision . . . ." 5 U.S.C.A. § 557(b) (West 1996), quoted in Goldstein v. Ebasco Constructors, Inc., No. 86-ERA-36, slip op. at 19 (Sec'y Apr. 7, 1992) (applying analogous employee protection provision of Energy Reorganization Act, 42 U.S.C.A. § 5851 (West 1995)); see 29 C.F.R. § 1978.109(b). The Board accordingly reviews questions of law de novo. See Yellow Freight Sys., Inc. v. Reich, 8 F.3d 980, 986 (4th Cir.1993); Roadway Express, Inc. v. Dole, 929 F.2d at 1063. See generally Mattes v. United States Dep't of Agric., 721 F.2d 1125, 1128-1130 (7th Cir. 1983) (rejecting argument that higher level administrative official was bound by ALJ's decision); McCann v. Califano, 621 F.2d 829, 831 (6th Cir. 1980), and cases cited therein (sustaining rejection of ALJ's recommended decision by higher level administrative review body).
Issues
(1) Whether Monde engaged in protected activity when he performed regular, interim tire inspections on his truck tractor and trailers in the course of completing a dispatch.
(2) Whether Monde engaged in protected activity by logging compensated layover time at foreign domiciles as "on duty" time.
(3) Whether Monde demonstrated a causal nexus between protected activity and adverse action.
(4) Whether the outcome of grievances filed by Monde affects the STAA proceeding.
(5) Whether after-acquired evidence of wrongdoing bars relief.
Statutory and Regulatory Provisions
Section 405 of the STAA prohibits employment discrimination against any employee for engaging in protected activity, including filing a complaint or beginning a proceeding "related to" a violation of a commercial motor vehicle safety regulation, standard, or order or testifying or intending to testify in such a proceeding. 49 U.S.C.A. § 31105(a)(1)(A). Protected activity also includes a refusal to operate a commercial motor vehicle because "(i) the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety or health; or (ii) the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle's unsafe condition." 49 U.S.C.A. § 31105(a)(1)(B).
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Part 397, 49 C.F.R., governs commercial motor vehicles engaged in the transportation of hazardous materials and required to be marked or placarded. See 49 C.F.R. §§ 172.500-172.560 (2002). The driver of any such motor vehicle equipped with dual tires on any axle must "stop the vehicle in a safe location at least once during each 2 hours or 100 miles of travel, whichever is less, and must examine its tires." 49 C.F.R. § 397.17. The regulation requires the driver to "examine the vehicle's tires at the beginning of each trip and each time the vehicle is parked." Id.
Section 392.7 of 49 C.F.R. provides: "No commercial motor vehicle shall be driven unless the driver is satisfied that the following parts and accessories are in good working order . . . ." The list that follows includes tires. Tire specifications appear at 49 C.F.R. § 393.75 (2002).
Section 396.11 of 49 C.F.R. requires drivers to prepare a written report at the completion of each day's work covering vehicle parts and accessories, including tires. Drivers should be aware of the condition of the parts and accessories after having operated the unit during the preceding ten hours of drive time. Section 396.13 of 49 C.F.R. requires that a driver "[b]e satisfied that the motor vehicle is in safe operating condition" prior to its operation.
Under section 395.2 of 49 C.F.R., "on duty" time is "all time from the time a driver begins to work or is required to be in readiness to work until the time the driver is relieved from work and all responsibility for performing work." It includes "[a]ll time at a plant, terminal, facility, or other property of a motor carrier or shipper, or on any public property, waiting to be dispatched, unless the driver has been relieved from duty by the motor carrier . . . ." Requirements for recording duty status appear at 49 C.F.R. § 395.8. Drivers must record their duty status for each 24-hour period and certify that the log entries are correct.
A tire inspection entails feeling for overheated tires and looking for tread separation, breakage, cracks, and flat spots. T. 77. These conditions could result in a blowout. Monde checks the tire rims for metal fatigue and the tires for air leaks. He checks the lug nuts to make certain that they are secure and checks the hub seal for leakage. Grease leaking from a seal can cause the bearings to overheat and create a tire fire. Monde also checks tire pressure. Tires and tire pressure change over the course of a trip. T. 78, 269. Inspection requires a driver to position himself under the vehicle in order to check for cuts or bulges on the inside of each tire. A bulge signals that a tire likely will blow out. T. 79. Monde also listens for air leaks in the brake lines and checks the brake pads for cracks. T. 80. He checks for foreign objects lodged between dual tires, for example rocks, pieces of metal, or pieces of recapped tires from the highway. Monde inspects each of the 18 tires on a fully assembled Roadway set of doubles. T. 85. See T. 63-86.
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Robert Spearman's evidence
The report of Robert Spearman, an experienced operator of truck tractors hauling semi-trailers, double trailers, and triple trailers and a 31-year employee of Roadway, generally supports Monde's testimony. Spearman testified that the contents of his report are true and correct. T. 384.
The report states that Spearman performed tire inspections "regardless of placard or not." Spearman gave the following reasons: (i) to satisfy himself that the tires were in good condition for safe operation of the vehicle and safety of the motoring public, (ii) to remind himself of two co-workers killed as the result of blown steering tires on their units, and (iii) because of an accident that he witnessed involving another Roadway unit resulting in a blown tire and damage to an automobile. Complainant's Exhibit (CX) 4, page 2. With reference to whether drivers should inspect the tires on non-placard hazmat loads, Spearman's report states: "The same conditions should be met with any amounts of Hazard[ous] Materials. Being safe is the main issue, for the safety of the motoring public. Checking your tires and vehicles every 2 hours or 100 miles also helps to reduce fatigue." Id. The report describes three hazardous materials spills experienced by Spearman involving non-placard loads. In all instances drums of hazardous materials had been damaged by forklift blades prior to loading in the trailers. Spearman failed to detect the damage during the pre-trip inspection because the trailers had been sealed prior to transport. Id., page 4. Spearman states that tire checks done properly take 15 minutes or more depending on the situation and should include examination of both exterior and interior surfaces of all tires for knots, cracks in the side wall, tread separation, loose lugs, cracked rims, objects between the duals, and leaking fluids. Id., page 2.
Spearman logged layover time as "on duty (not driving)" and flagged the area in the "remarks" section of the log to show time waiting in readiness for dispatch following a required rest period. CX 4, page 3. Drivers were confined to their motel rooms and could wait for as many as 32 hours before being dispatched. When required to remain in readiness in a motel room with nowhere to go, a "fatigue situation" may develop.
Lawrence Alden's testimony
Alden currently fills the position of chief union steward. Employed by Roadway for 23 years as an over-the-road truck driver, Alden testified that he performs tire inspections on non-placard trailers when transporting hazardous materials, although not always. When asked why he performs interim tire inspections on non-placard loads, Alden testified: "If I have any inclination that there's anything wrong with the tires on the vehicle, even if it's empty, I will immediately stop and check the tires at the nearest, safest location like on the top of a ramp." T. 391. Every time he stops the truck he inspects his equipment including the tires, coupling devices, and air hoses. Whether he stops every two hours on a non-placard load would depend on what he had on board. Although it is the safe course to stop every two hours or more frequently, he will not necessarily do so. The condition of tires changes in transit. Sometimes tires go flat without the driver's knowledge. Flat tires will produce heat and may catch fire or go to pieces and possibly fly into automobiles. See T. 391-398. According to Alden, the quality of Roadway's equipment is poor. T. 390-391.
Dennis McMickens's evidence
McMickens has been employed by Roadway since 1994 in a variety of management positions, including Director of Corporate Safety. McMickens testified that Roadway is committed to safety, has received numerous awards for safety, and maintains a very good safety record. T. 401-403.
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McMickens's positions are set out in RX 32 (Report of Dennis McMickens). If a trailer requires no placard under DOT regulations, tire checks are not necessary. Roadway drivers are not authorized to establish their own standards for tire checks beyond the requirements of DOT regulations. McMickens testified that Roadway has no publication that states that a driver may not check his non-placard equipment every two hours or 100 miles to ensure its safety. T. 412. He is not aware of any serious problems as the result of using recapped tires and similarly is not aware of any rollovers resulting from tire failure. Recapped tires have shorter lives than non-capped tires. A peeled cap can present a hazard to other drivers and trailing equipment. Roadway has experienced spills of hazardous materials, even on non-placard loads. T. 418.
McMickens stated that logging time for paid layovers that last more than 14 hours as "on duty (not driving)" is improper under DOT regulations. CX 32, page 2. DOT safety regulations do not apply to compensation issues, which are determined under the collective bargaining agreement. If a driver is free from an employer's obligations and is able to use time awaiting dispatch to secure appropriate rest, the time may be logged as "off duty." Id.
James Grizzel's testimony
Grizzel is an over-the-road truck driver employed by Roadway for 28 years and a defensive driving and hazmat instructor. He testified that Roadway's use of recapped tires does not alarm him and that in all his years with Roadway he has blown a dozen tires. Grizzel never has flipped a trailer as the result of a blow out. He does not perform interim tire checks except when at a truck stop for a break. Grizzel testified that overheating from a flat tire is virtually unheard of. Tire fires may result, however, from a faulty wheel bearing or overheated brakes. The Roadway Road Driver's Manual prohibition against running with a soft or flat tire, see infra, would require tire checks. If a tire is hot the driver will smell it. T. 493-523. A DOT inspector accompanying him during a test run did not require him to stop for tire inspections every two hours or 100 miles when, during the return trip, he transported a non-placard load containing hazardous materials. T. 508-510. Grizzel strongly disagreed with testimony that the condition of Roadway's equipment is poor. T. 488-489.
Grizzel testified as to various methods for maintaining contact with Roadway's dispatch on layover while leaving the motel room and pursuing his own interests. T. 485-488.
Jerry Lyons's testimony
Lyons, a business agent for Teamsters Local Union 135, maintains a commercial driver's license and worked for 20 years as a truck driver. He is not aware of any work rule prohibiting tire inspections on non-placard vehicles carrying hazardous material. T. 590. Lyons testified as to the union's involvement in negotiating running times. Drivers can make the running times even if they must perform interim tire checks. T. 574-576. Lyons testified that he attended a "settlement" meeting with Monde and other union officials during which Monde was told he should not perform routine tire checks unless he was hauling a placard load. Monde agreed to follow the advice. T. 567, 569, 749. Lyons testified to a number of additional conversations with Monde regarding Roadway's position on tire inspections. T. 570, 571.
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Kelly Wade's testimony
Wade has been employed by Roadway as an over-the-road driver for 11 years. Wade serves on various safety committees, inspects Roadway equipment, and is a hazmat instructor. His testimony about procedures for inspecting tires is consistent with Monde's testimony. T. 612-614. Wade does not routinely perform interim tire inspections on non-placard loads carrying hazardous materials. T. 622-623. He inspects his tires in certain circumstances including if he believes he has run over something inadvertently or when he stops to eat. The condition of the tires changes during a trip, for example tires may lose air pressure or recapped tires may peel. He has experienced peeling tires on 30-50 occasions. Unless he sees pieces of rubber coming off a tire in his rear view mirror or a tire just completely blows, he has no indication of a problem when driving. A blown tire results in more weight on the other (dual) tire. T. 623-626. The post-trip driver vehicle inspection report reflects what the driver noticed during the pre-trip inspection and any problems that he noticed during the trip. T. 644-645. Wade disagrees with testimony that the quality of Roadway's equipment is poor. In his opinion Roadway's equipment is safe. T. 611-612.
Wade testified to a variety of methods for maintaining contact with Roadway's dispatch on layover while leaving the motel room. T. 614-615.
Ronald Baysinger's testimony
Baysinger is a relay manager employed by Roadway. Previous positions in his more than 24-year tenure with Roadway included dispatch clerk, dispatcher, relay coordinator, and driver superintendent. T. 648. Baysinger testified that when drivers take rest breaks they should check their tires before they resume driving. Drivers are not required to take their entire allotted rest period during a single break. They may take a number of breaks in 15-minute increments, for example. T. 699-700. Drivers may pull off the road if they have reason to believe their equipment is faulty. T. 705. Roadway has experienced spills of hazardous material with non-placard loads. T. 729. Unnecessary routine tire checks were part of the discipline issued to Monde. T. 682. Baysinger denied retaliating against Monde for any safety issue. T. 688. Disciplinary letters and corresponding trip logs contained in RXX 1-20 represent only a sample of Monde's runs. In many instances Monde made his running times. When Monde hauled placard loads, he performed interim tire checks legitimately.
Baysinger testified about the history of the negotiated running times which include allocations for pre-trip inspections, maximum drive time, and breaks. Leeway exists within the drive times to allow for heavy traffic, inclement weather, and tire inspections. T. 660-667.
Gary Behling's testimony
Behling, employed by Roadway as manager of labor relations, never has held a commercial driver's license and never has worked as a truck driver. He testified initially that drivers are not required to check tires every two hours or 100 miles on non-placard loads, but that a driver of a non-placard load has a right to do so if he makes his running time. T. 781-782. He later testified that he "misspoke there." T. 783, 785.
Behling testified about disciplinary letters issued to Monde for exceeding running times/delay of freight. T. 761-771.
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Documentary evidence
A Roadway Spotlight publication directs drivers to "[s]chedule a break every two hours or every 100 miles" in the event of fatigue and during the break to "safety-check [their] rig." CX 1, page 6.
In the portion of Roadway's booklet explaining FMCSA Part 397 regulations that "apply to each driver of a motor vehicle requiring DOT hazardous material placards," Roadway states:
While driving a vehicle with any amount of hazardous materials, you must stop and check the tires at least every 2 hours or every 100 miles, whichever is less, and indicate the tire check on your log. If you discover a flat, leaking, or improperly inflated tire, it must be repaired or inflated before further operation of the truck; the truck may be driven to the nearest safe place to make the repair or change. An overheated tire must be removed.
CX 2, page 10.
The Indiana Commercial Drivers License Manual directs drivers to conduct inspections "during a trip," specifically that they should "check vehicle operation regularly" including checking tires. CX 3, page 16. It also states:
Check the tire mounting and air pressure. Inspect the tires every two hours or every 100 miles when driving in very hot weather. Air pressure increases with temperature. Do not let air out or the pressure will be too low when the tires cool off. If a tire is too hot to touch, remain stopped until the tire cools off. Otherwise the tire may blow out or catch fire.
Id. at 20.
Under the heading "Improperly Inflated or Hot Tires," a Roadway Road Driver's Manual fire prevention provision instructs drivers never to run on a soft or flat tire and sets out the procedures drivers must follow should these conditions occur. RX 21, page 47. These procedures include moving the unit "to the nearest place where a tire change or repair can be made safely." The Manual admonishes against leaving the unit upon discovering a hot tire, rather the driver should "have it removed or wait until it is cool." The Manual contains separate instructions for drivers carrying hazardous materials. The Roadway Road Driver's Manual's sample log appearing under the "General On-Duty Policies and Procedures" section shows five tire inspections, logged in 15-minute increments, as time spent "on duty (not driving)." RX 21, page 14.
B. The ALJ's Findings
The Necessity for Regular, Interim Tire Inspections
The ALJ found that the 49 C.F.R. § 397.17(a) requirements do not require routine tire checks for non placard vehicles. R. D. & O. at 17. He reasoned that "operating such a vehicle without performing tire checks every two hours or 100 miles would not violate a ‘regulation, standard, or order of the United States related to commercial motor vehicle safety or health,' pursuant to section 405(B)(i) [and that] Monde's refusal to so operate a vehicle does not constitute protected activity." Id.
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In discussing reasonableness under 49 U.S.C.A. § 31105(a)(1)(B)(ii) (reasonable apprehension of serious injury because of unsafe condition), the ALJ considered Monde's apprehension about past experience with tire problems, double trailers prone to a "crack the whip" effect, his relative inexperience as a truck driver, and his concern that he could not inspect sealed trailers. He found Monde's testimony to lack credibility based on inconsistencies and inaccuracies in his testimony and also his demeanor at trial. The ALJ acknowledged testimony by Alden regarding the poor condition of Roadway's equipment as compared to other commercial motor vehicles. He found Alden's testimony regarding the safety of Roadways' trucks to be incredible because it was based on his "casual observance" of Roadway's trucks and he did not back it up with specifics.
On the other hand he found the testimony of Grizzel and Wade, who are on safety committees and are driving and hazardous materials trainers, to be credible. They testified as to Roadway's maintenance program and the good condition of Roadway's equipment. R. D. & O. at 14. The ALJ also credited the testimony of McMickens, Director of Corporate Safety, citing the safety awards received by Roadway, the regular safety maintenance and Roadway's record on DOT inspections. Grizzel, Wade and McMicken's safety testimony was consistent, corroborated and therefore very credible. R. D. & O. at 15.
1 That letter stated: "On 7/26 & 7/27/00 you falsified your logs. This is the tenth time in a 9 month period that you have falsified your logs." Respondent's Exhibit (RX) 15, page 1. The term "falsification" is a misnomer in the sense that Monde did not "lie" in logging tire inspections as time spent "on duty (not driving)." Monde actually performed the inspections and logged them correctly. Roadway's position was that the inspections were unnecessary.
2 These regulations prohibit a driver from operating a commercial motor vehicle unless he is satisfied that parts and accessories, including tires, are in "good working order" and "safe operating condition." Additionally, upon completing a trip, a driver must report any defects or deficiencies which would affect the safe operation of the vehicle or result in its mechanical breakdown. Monde used two-hour/100-mile tire inspections to achieve these objectives.
3 Under 49 C.F.R. § 395.8(f)(7), a driver must certify that all duty status log entries are true and correct. "On duty" time is defined as including time when a driver "is required to be in readiness to work," time "remaining in readiness to operate [a] commercial motor vehicle," and time "waiting to be dispatched, unless the driver has been relieved from duty by the motor carrier." 49 C.F.R. § 395.2. Monde considered himself "on duty" when restricted to a motel room for an extended period awaiting dispatch.
4 The Roadway Road Driver's Manual recognizes this general effect. It states "Combination units (doubles and triples) handle differently than single units. Abrupt steering changes can cause a whipping action in the rear trailer. To avoid this possible hazard, make steering changes gradually." RX 21, page 23.
5 As noted above, drivers are required to perform pre-trip tire inspections on any vehicle, placarded or not, under 49 C.F.R. §§ 392.7 and 396.13.
6 The cited testimony follows: When asked about a communication with Monde, Lyons testified, "I told him that the guidelines under the DOT, you could not log to work and back[ ] or the issues on the placard loads – I represent 900 people here in Indianapolis that's road drivers and he was the only one doing this." T. 567. Lyons did not elaborate on the meaning of "this." Lyons also testified –
Q. Mr. Lyons, are you aware of any Roadway work rules or procedures that prohibit a driver from doing tire checks on non-placarded shipments?
A. I'm not aware of anything.
Q. Prior to this issue arising with Mr. Monde doing those tire checks, were there other drivers who had the same type of issues or is this the first time it came up?
A. First time it came up.
Q. So it was kind of a new situation, that people didn't know how to deal with it, correct?