LaRosa arrived back at Barcelo at 10:30 p.m., dropped off his truck and went home. He did
not return to work to take a run that was scheduled to begin only about four hours later, at 3:00 a.m.
on August 10. LaRosa did not inform anyone that he would not take the August 10 run. LaRosa
admits that Munoz did not tell him that he need not report to work. LaRosa contends that Munoz
knew the hours he had worked, and that the scheduled 3:00 a.m. run on August 10th would violate
DOT regulations. LaRosa further contends that Munoz should have put another driver on the run and
not expected LaRosa to report at 3: 00 a.m. R. D. and O. at 4. When Munoz returned to the office on
the morning of August 10th, he saw that LaRosa had not come in to work and allegedly made the
decision to fire him.
DISCUSSION
The relevant portion of the STAA states:
(a) Prohibitions. (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.
49 U.S.C.A. § 31105 (a) (1).
[Page 3]
We agree with the conclusion of the ALJ that on August 9 LaRosa was on duty for fifteen hours,
R. D. and O. at 2-3, and that therefore LaRosa would have been justified in refusing to make the 3:00
a.m. run on August 10. But LaRosa's statement regarding bringing the truck in on August 9, because
he was approaching fifteen hours, cannot be considered a refusal to make the 3:00 a.m. run on August
10. LaRosa wants us to assume that Munoz was aware, not only of the fact that he could not take the
3:00 a.m. run, but that the reason for refusing to take the run was safety related.
At this point in our analysis LaRosa has the burden of proof and we simply cannot assume
compliance with the requirement, where reasonally possible, that a driver inform his employer of
the safety basis for his refusal to drive. Assistant Secretary of Labor and Johnny E. Brown v.
Besco Steel Supply, 93-STA-30, Sec. Dec., Jan. 24, 1995, slip op. at 3; LeBlance v.
Fogleman Truck Lines, Inc., 89-STA-8, Sec Dec., Dec. 20, 1989, slip op. at 12-13; Perez
v. Guthmiller Trucking Co., 87-STA-13, Sec. Dec., Dec. 7, 1988, slip op. at 25 n.14. LaRosa
never expressly refused to take the 3: 00 a.m. run, he just did not show up. Therefore, the record
fully supports the ALJ's findings that LaRosa did not prove by a preponderance of the evidence
that he engaged in a protected refusal to drive.
That conclusion, however, does not end our analysis. The record indicates that LaRosa's claim
was also filed under subsection (a)(1)(A), the "complaint' provision of the STAA. The ALJ made no
findings regarding this provision. We find that serious issues exist concerning whether LaRosa made
protected complaints prior to his being terminated. Further, if such complaints were made, an analysis
of the effect of those complaints on Barcelo's decision to terminate LaRosa must be made. We
remand this matter to the ALJ for consideration of these issues and for the taking of additional
evidence, if appropriate. The following discussion sets out certain conclusions that can be made from
the present record, and should provide guidance to the ALJ in reviewing the remaining issues on
remand.
The record reveals that on three separate occasions LaRosa may have engaged in protected
activity. The first allegation of protected activity is found in LaRosa's October 23, 1995 statement
of complaint, as follows:
Into the second week working long hours I mentioned to Mr. Reyes
[Munoz] that I can't come to work on a few hours sleep, and because of that he didn't have
me scheduled to work the next day. I was told by Victor Granchukoff [that] Mr. Reyes
will have you stay home because you refuse to work, but I can't properly function with a
couple of hours of sleep or I will fall asleep at the wheel trying to do my job.
At 2-3. On remand the ALJ should make a finding as to whether a protected complaint was made.
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If so, the complaint needs to be placed into the appropriate context and a recommendation must be
made as to the effect of this complaint, if any, on Barcelo's decision to terminate LaRosa.
[1]On April 17, 1996, a Secretary's Order was
signed delegating jurisdiction to issue final agency decisions under this statute to the newly
created Administrative Review Board. 61. Fed. Reg. 19978 (May 3, 1996) (copy appended).
Secretary's Order 2-96 contains a comprehensive list of the statutes, executive order, and
regulations under which the Administrative Review Board now issues final agency decisions. A copy
of the final procedural revisions to the regulations (61 Fed. Reg. 19982), implementing this
reorganization is also attached.
[2]Despite LaRosa's problems in making the run on
August 9, he was fired, according to Barcelo, solely for the failure to report for work on August 10.
T. 70 and 74.
[3]The relevant substantive regulations in this case are
the "hours of service" rules codified under Section 395.3 of Title 49 of the Code of Federal
Regulations, which state that a driver may not drive "[f]or any period after having been on duty 15
hours." 49 C.F.R. § 395.3(a)(2).
[4] Even though Munoz's memory of the circumstances
surrounding LaRosa's termination is quite good on most points, he does not recall talking to LaRosa
on August 9 at 7:00 p.m. R. D. and O. at 3. The ALJ found that Barcelo's long distance phone record
(page two of which is not in the record received by this office) supports some of LaRosa's allegations
concerning the phone call. R. D. and O. at 5-6. The ALJ did not fully credit LaRosa's allegations
because the record does not indicate the parties to the conversation. Id. LaRosa has
consistently stated that he called Barcelo from Los Angeles at around 7:00 p.m., was disconnected,
called back and was patched through to Munoz's home. The phone record supports, to the extent
possible, these allegations. Since Munoz does not deny that the phone conversation took place and
no other record evidence indicates otherwise, e.g. a showing by Barcelo that its phone system
does not have "patch through" capability, we find LaRosa did talk to Munoz at 7:00 p.m. on August
9.
[5]For example, Munoz seems to admit that if he had
talked to LaRosa on August 9 at 7:00 p.m. and was made aware of the situation regarding LaRosa's
hours, he "would figure [the violation of DOT regulations] out by myself." T. 79.