ARB CASE NO. 00-048
ALJ CASE NO. 99-STA-37
DATE: December 31, 2002
In the Matter of:
MICHAEL HARRISON,
COMPLAINANT,
v.
ROADWAY EXPRESS, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant: Paul O. Taylor, Esq.,Truckers Justice Center, Eagan, Minnesota
For the Respondent: Paul M. Sansoucy, Esq., Prashanth Jayachandran, Esq., Bond, Schoeneck & King, LLP, Syracuse, New York
FINAL DECISION AND ORDER
Michael Harrison claims that one of the reasons his employer, Roadway Express, Inc., discharged him was because he complained that Roadway's trailers were unsafe. Harrison alleges that his termination violates the employee protection provisions of the Surface Transportation Assistance Act ("STAA" or "Act"), 49 U.S.C.A. § 31105 (West 1997). The Administrative Law Judge ("ALJ") agreed with Harrison and recommended that we order Roadway to reinstate Harrison and award him all of the remedies to which he is entitled. However, because we find that Harrison did not engage in activity protected by the Act, we reverse the ALJ and deny Harrison's complaint. We also address several additional issues.
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BACKGROUND
Roadway operates commercial motor vehicles in interstate commerce. It hired Michael Harrison in 1989, and in 1997 he became a "switcher" at Roadway's West Seneca (Buffalo), New York terminal. Switchers operate "yard horses," tractor-like vehicles used to shuttle trailers to and from the various loading docks and other areas on the terminal grounds. Part of Harrison's work was to release ("drop") the trailers attached to the arriving inbound tractor trucks and move them to other parts of the terminal. He also "hooked" trailers onto outbound tractor trucks. While performing his "drop and hook" duties, Harrison was required to perform a thorough inspection of the trailers. When shuttling the trailers throughout the terminal, he was only to visually check the trailers for obvious defects.
To identify this unsafe equipment, Roadway employed a process called "red tagging." Between July 9, 1997, and August 7, 1997, Roadway utilized three different red tagging policies. The red tagging policy that became effective on August 7 required switchers, prior to placing a red tag on unsafe equipment, to obtain approval to do so from their supervisors in "Relay," the department responsible for the logistics and movement of the tractor-pulled trailers traveling from the mid-west to the east coast. Roadway disciplined Harrison six times between August 5, 1997, and January 14, 1998, for red tagging equipment without approval. The discipline included a written counseling, two written warnings, and three suspensions ranging from one to five days.
And the discipline continued. Three Occupational Safety and Health Administration (OSHA) representatives visited the terminal on June 19, 1998, and inspected the yard horses. They were there to investigate a complaint Harrison had made a week before about the safety of the yard horses. Later that day, Roadway suspended Harrison for ten days for failing to follow instructions to put a trailer behind the garage and his overall work record. On July 2, 1998, Roadway terminated Harrison's employment because he failed to follow instructions concerning an inspection of a yard horse and his overall work record. He filed grievances for both the suspension and the termination.
Soon thereafter, on July 27, Harrison went to the Bowmansville OSHA office to complain about the disciplinary actions but was informed he would have to wait until the grievances were resolved to file a discrimination complaint. When the grievances were resolved in Roadway's favor, Harrison filed a discrimination complaint with OSHA.1
1 Roadway also disciplined Harrison for his inspection and red tagging of yard horses, and those matters were also part of his complaint to OSHA. Because the activities involving the yard horses are not covered by the STAA, we do not describe the disciplinary activities pertaining to them in any detail.
2 In the alternative, Roadway argues that Harrison's complaint is time barred by the 180-day rule even under the ALJ's (and our) finding that a valid complaint was filed on July 27, 1998. Roadway argued to the ALJ that because Harrison's protected activity – red tagging trailers between August 5, 1997, and January 14, 1998, – occurred more than 180 days before the July 27, 1998 complaint, this matter must be dismissed. The ALJ rejected that argument and held that the 180-day rule does not begin to run until the date Roadway took adverse action against Harrison. Recommended Decision & Order (R.D. & O.) at 8.
Roadway points out in its Brief to the Board, that it suspended Harrison for 5 days on January 14, 1998, for, among other reasons, red tagging without authorization. It argues that Harrison's STAA claim is time-barred because the suspension was "an adverse action of sufficient magnitude to trigger the filing requirement [of STAA § 31105 (b)]" and more than 180 days had elapsed between the date of that adverse action (January 14, 1998) and the filing of the complaint with OSHA (July 27, 1998). Respondent's Brief at 10-11. Given our ultimate conclusion that Roadway did not terminate Harrison's employment because he engaged in protected activity, it is not necessary for us to determine whether Roadway's termination of Harrison's employment, at least in part "based on his disciplinary record," Respondent's brief at 7, triggered a new limitations period for filing a complaint based on his red tagging activity.
3 We are aware that in Donovan v. Diplomat Envelope Corporation, 587 F. Supp. 1417, 1424 (E.D.N.Y. 1984), the court held that "an allegation that an employee was discharged for reporting an alleged health hazard to his union states a claim for which relief can be granted under 29 U.S.C. Section 660c(1)." (Emphasis supplied). We distinguish Diplomat primarily because it arose under the OSHA statute, 29 U.S.C.A. § 651 et seq. (West 1999). We also note that although the complaint was not made to management, it was directed to a specific recipient under circumstances in which one may infer that, as a result of the communication, the unsafe condition would be reported to management. Cf. Stone & Webster Eng'g Corp. v. Herman, 115 F.3d 1568, 1574-76 (11th Cir. 1997) (under Energy Reorganization Act, 42 U.S.C.A. § 5851(a) (West 1995), expressing safety concerns to fellow workers was protected communication since, in the particular circumstances and context presented, "as a practical matter . . .[Complainant's] statement [to his fellow workers] at the meeting served as another notice to the employer."). (Emphasis supplied).
4 Ray Tangent, the Relay Manager, and Glanville's supervisor, testified that Glanville was not a supervisor, but a "clerk." TR 582-83.
5 Though the new red tagging policy became effective on August 7, Harrison was "counseled" on August 5, in part, for red tagging without authorization on August 4. CX 16.