U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB CASE NO. 97-103 ALJ CASE NO. 96-STA-5 DATE: September 17, 1997
In the Matter of:
ASSISTANT SECRETARY OF LABOR
FOR OCCUPATIONAL SAFETY AND
HEALTH,
PROSECUTING PARTY,
and
KENNETH BURKE,
COMPLAINANT,
v.
C.A. EXPRESS, INC.
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
DECISION AND ORDER OF REMAND
On May 20, 1997, the Administrative Law Judge (ALJ) submitted a
Recommended Decision and Order (R. D. and O.) in this case arising under the employee
[Page 2]
protection provision of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C.A.
§31105 (West 1997). The ALJ recommended that the complaint be granted and awarded
back pay.
1 The STAA provides, in
pertinent part, as follows:
(1) A person may not discharge an employee, or discipline or discriminate against an
employee regarding pay, terms, or privileges of employment, because --
(A) the employee, or another person at the employee's request, has filed a complaint
or begun a proceeding related to a violation of a commercial motor vehicle safety
regulation, standard, or order, or has testified or will testify in such a proceeding; or
(B) the employee refuses to operate a 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.
(2) Under paragraph (1)(B)(ii) of this subsection, an employee's apprehension of
serious injury is reasonable only if a reasonable individual in the circumstances then
confronting the employee would conclude that the unsafe condition establishes a real
danger of accident, injury, or serious impairment to health. To qualify for protection, the
employee must have sought from the employer, and been unable to obtain, correction of
the unsafe condition.
49 U.S.C.A. §31105 (West 1997).
2 The weekly sum
is calculated based upon a forty hour work week at $16.13 per hour.