U.S. Department of Labor Administrative Review Board
200 Constitution Ave, NW
Washington, DC 20210
DATE: February 18, 1999
ARB CASE NO. 99-005
ALJ CASE NO. 98-STA-9
In the Matter of:
DANIEL S. SOMERSON
COMPLAINANT,
v.
YELLOW FREIGHT SYSTEM, INC.
RESPONDENT.
and
ARB CASE NO. 99-036
ALJ CASE NO. 98-STA-11
GARY C. BUHNERKEMPER,
COMPLAINANT,
v.
YELLOW FREIGHT SYSTEM, INC.
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainants: Daniel S. Somerson, Jacksonville, Florida
For the Respondent: Anderson B. Scott, Esq., Fisher & Phillips LLP, Atlanta,
Georgia
FINAL DECISION AND ORDER
These cases arise under the employee protection provision of the Surface
Transportation Assistance Act (STAA), 49 U.S.C.A. §31105 (West, 1996). In two separate
complaints filed with the Labor Department, Complainants Daniel Somerson (Somerson) and Gary
[Page 2]
Buhnerkemper (Buhnerkemper) allege they were discriminated against under the STAA by
Respondent Yellow Freight Systems, Inc. (Yellow Freight) because they complained about Yellow
Freight's procedure for assigning drivers for dispatch, and because they had filed previous STAA
complaints related to safety. They allege that in retaliation for having raised these safety complaints,
Yellow Freight sabotaged their tractor-trailers and failed to select them to become "regular
drivers." Somerson also alleges that he refused many dispatches because of fatigue, and that
Yellow Freight retaliated against him when it took his record of absences into account in failing to
select him as a regular driver. Yellow Freight denies it sabotaged the equipment that Complainants
were assigned to drive, and asserts that it chose other drivers for the limited number of regular driver
positions because the other candidates were better qualified than Complainants.
Somerson and Buhnerkemper filed their complaints on October 8, 1996.
Because the complaints arise out of related facts, the Administrative Law Judge (ALJ) consolidated
the two cases both for hearing and for decision. In his Recommended Decision and Order (R. D. and
O.), the ALJ found that Complainants did not carry their burden of proof and recommended
dismissal of the complaints.
These factors, relied upon by Yellow Freight in selecting regular drivers, were
not used to retaliate against the Complainants. The practice of selecting regular drivers from among
casual drivers without regard to relative tenure with Yellow Freight had been in existence before
Complainants began to work at the Jacksonville terminal. T. 621-22; R-11 (seniority list of regular
and casual drivers). This procedure therefore could not have been instituted by Yellow Freight in
order to prevent Somerson and Buhnerkemper from being selected.
ii. Driver fatigue issue.
Olover (whose testimony was credited by the ALJ) also testified that
Somerson was not considered for a position as a regular driver because his attendance was poor.
Somerson frequently was not available because of dental appointments, doctor appointments, car
trouble, or fatigue. T. 896, 991, 994.
[Page 12]
In opposition to the company's contention, Somerson appears to argue that
the failure to select him because of his poor job attendance amounts to adverse action, taken because
he (Somerson) complained about the on-call system and refused to drive when fatigued. See,
e.g., R. D. and O. at 30.
1 Board decisions are subject to
appeal to a United States Court of Appeals. 49 U.S.C.A. §31105(c); 29 C.F.R.
§1978.110(a).
2 On October 28, 1998,
the Board issued a briefing order in this case, allowing Complainants and Respondents to
file briefs up to 30 pages in length supporting their positions. Yellow Freight filed such a brief.
Complainant Somerson, who has appeared in these proceedings pro se and on behalf of
Complainant Buhnerkemper, filed several letters.
3 For example, if a driver returned
from a trip at 6 AM, having expended his on-duty hours, his rest period would last
until 2 PM. He could not be called for a dispatch until the next call block , i.e., 3 PM to 6
PM. In addition to the eight hour rest period, plus any additional time until the next call block period
began, drivers were given two hours from the time of the call to report for dispatch. Therefore, our
hypothetical driver, if called exactly at 3 PM (the beginning of his next available call block), would
not have to arrive at the terminal until 5 PM, eleven hours after the end of his previous run.
See T. 601-602; 882-85. If the next driver returned at 6:05 AM, his next call block also
would be 3 PM, but he would be placed on the bottom of the dispatch board behind the first driver.
4 In tractor-trailers, maintaining
constant air pressure in the brake air line holds the brakes in the disengaged position; if pressure is
reduced significantly or lost, the brakes will engage. T. 810-11.
5 The line haul manager found
older drivers more mature and reliable.
6 Yellow Freight argued before
the ALJ and before us (Respondent Yellow Freight System, Inc.'s Brief to the Administrative
Review Board in Support of Administrative Law Judge's Recommended Decision and Order (Resp.
Br.) at 3 n.2) that this allegation had been the subject of a previous STAA complaint filed by
Somerson. Yellow Freight argues that this allegation therefore is time barred. We agree.
However, even assuming that this allegation were not time barred, or barred on
grounds of estoppel, we would rule against Somerson on the merits.
7 The accident report indicated
"possible weight shift of load in 2nd trailer" as a contributing cause. C-3.
8 The Teamsters Union would
recommend drivers who had a significant number of years credited toward a Teamsters' pension and
who had good driving records. Yellow Freight was not obligated to hire these workers, but often
did. T. 625, 932-33. Consistent with this general practice, two of the three casual drivers hired as
regular drivers in the fall of 1996 had a significant number of years credited toward a Teamsters'
pension and were recommended by the union.
9 As Yellow Freight has noted,
however, Somerson had many gaps in his employment as a truck driver. Res. Br. at 9; see R-2.
10 Yellow Freight viewed
Somerson as disruptive in the workplace. The record contains evidence regarding two disruptive
incidents: a co-worker wrote to Yellow Freight complaining that Somerson had made threats against
him and his family (R-21); and the terminal manager in Ft. Myers, Fla. reported to Olover an
argument he had with Somerson. R-22. See also T. 1002.
11 The Secretary and the
Board often have found in favor of a STAA complainant who was subject to retaliation for refusing
to drive because of fatigue or illness: Self v. Carolina Freight Carriers Corp., Case No. 89-STA-9, Sec. Dec. and Ord., January 12, 1990; Earwood v. D.T.X. Corp., Case No. 88-STA-21, Sec. Dec. and Ord. of Remand, Mar. 8, 1991; Asst. Sec. and Curless v. Thomas Sysco Food
Service, Case No. 91-STA-12, Sec. Final Dec. and Ord., Sept. 3, 1991, rem. with instr. to
vacate as moot sub nom. Thomas Sysco Food Services v. Martin, 983 F.2d 60 (6th Cir. 1993);
Self v. Carolina Freight Carriers Corp., Case No. 91-STA-25, Sec. Final Dec. and Ord.,
Aug. 6, 1992; Hornbuckle v. Yellow Freight System, Inc., Case No. 92-STA-9, Sec. Dec.
and Ord., Dec. 23, 1992, aff'd sub nom. Yellow Freight Systems, Inc. v. Reich, 8 F.3d 980
(4th Cir. 1993); Asst. Secretary of Labor and Killcrease v. S. & S. Sand and Gravel, Inc.,
Case No. 92-STA-30, Sec. Final Dec. and Ord., Feb. 2, 1993; Smith v. Yellow Freight System,
Inc., Case No. 91-STA-45, Sec. Dec. and Ord., Mar. 10, 1993, aff'd sub nom. Yellow
Freight System, Inc. v. Reich, 27 F.3d 1133 (6th Cir. 1994); Spearman v. Roadway Express,
Inc., Case No. 92-STA-1, Sec. Final Dec. and Ord., June 30, 1993, aff'd sub nom. Roadway
Express, Inc. v. Reich, No. 93-3787 (6th Cir. Aug. 22, 1994) (unpublished); Turgeon v.
Maine Beverage Container Services, Inc., Case No. 93-STA-11, Sec. Final Dec. and Ord., Nov.
30, 1993; Polger v. Florida Stage Lines, Case No. 94-STA-46, Sec. Final Dec. and Ord.,
Apr. 18, 1995, aff'd sub nom. Florida State Lines v. Reich, 100 F.3d 969 (table)(11th Cir.
1996)(unpublished); Asst. Sec. and Ciotti v. Sysco Foods of Philadelphia, ARB Case No.
98-103, ALJ Case No. 97-STA-30, ARB Final Dec. and Ord., July 8, 1998.
Most of the cases in which the Secretary or the Board has ruled against a
complainant asserting a fatigue or illness retaliation claim have involved drivers who refused to work
in anticipation of becoming fatigued, without evidence to support that anticipation. See
D'Agostino v. B&Q Distribution Service, Inc., Case. No. 88-STA-11, Sec. Final Dec. and Ord.,
May 10, 1989; Brandt v. United Parcel Service, Case No. 95-STA-26, Sec. Final Dec. and
Ord., Oct. 26, 1995; Cortes v. Lucky Stores., Inc., ARB Case No. 98-019, ALJ Case No. 96-STA-30, ARB Final Dec. and Ord., Feb. 27, 1998; Byrd v. Consolidated Motor Freight,
ARB Case No. 98-064, ALJ Case. No. 97-STA-9, ARB Final Dec. and Ord., May 5, 1998,
appeal filed, May 27, 1998 (11th Cir.).
The remainder of the fatigue cases turn on their particular facts. See
Brothers v. Liquid Transporters, Inc., Case No. 89-STA-1, Sec. Final Dec. and Ord., Feb. 27,
1990 (complainant's failure to follow order to start a sleeping break led to termination);
Palazzolo v. PST Vans., Inc., Case No. 92-STA-23, Sec. Dec. and Ord., Mar. 10, 1993
(complainant failed to prove that employer was aware that he had refused to drive in part due to pain
and medication); Asst. Sec. and Porter v. Greyhound Bus Lines, ARB Case No. 98-116,
ALJ Case No. 96-STA-23, ARB Final Dec. and Ord., June 12, 1998 (not reasonable that, after three
days off, complainant would be too fatigued to drive safely).
12 Somerson's
characterization of the on-call system is in error. As described above, under the rest time and call
block system drivers were not literally on call 24 hours a day, seven days a week. They always were
allowed their rest period after completing their on duty time, plus two hours time to report after
being called. See n. 3, supra. If a casual driver was ill or fatigued he or she could
so inform the dispatcher before the first call block and the driver would be dropped to the bottom
of the board. When this happened, the driver would not be called again until all other drivers ahead
of him or her on the board had been dispatched. Moreover, casual drivers were required to be
available only during the first call block after their rest period; if they were not dispatched by Yellow
Freight during that limited period, the company did not require them to remain available
continuously. See discussion at 4, supra.
13 In a line of cases
beginning with Robinson v. Duff Truck Line, Inc., the Secretary and the ARB have construed
what is now subsection (ii) to apply to unsafe conditions such as bad weather and fatigue, as well
as to unsafe vehicles. Robinson v. Duff Truck Line, Inc., Case No. 86-STA-3, Sec. Final
Dec. and Ord., March 6, 1987, aff'd on other grounds sub nom. Duff Truck Line, Inc. v.
Brock, 848 F.2d 189 (Table)(6th Cir. 1988)(bad weather). See Self v. Carolina Freight
Carriers Corp., Case No. 89-STA-9, Sec. Final Dec. and Ord., Jan. 12, 1990, slip op. at 9
(fatigue); Byrd v. Consolidated Motor Freight, ARB Case No. 98-064, ALJ Case No. 97-STA-9, ARB Final Dec. and Ord., May 5, 1998 (fatigue).
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.
49 U.S.C. 31105(a)(2).
15 Yellow Freight recorded
all dispatch calls to assure that dispatches were being given out and accepted according to Yellow
Freight's policy and the collective bargaining agreement.
16 Somerson initially was told that
he was being terminated for this incident. However, after he spoke to higher-level management,
Somerson was placed back on the casual board the next day. R. D. and O. at 5.