[STAA Digest V A] PROTECTED ACTIVITY; COMPLAINANT'S GOOD FAITH BELIEF THAT THE RESPONDENT WAS FAILING TO CONDUCT AN ADEQUATE INVESTIGATION OF A FIRE IN A SORTING FACILITY WAS NOT PROTECTED ACTIVITY UNDER THE STAA WHEN IT WAS NOT SHOWN TO BE LINKED TO HIGHWAY SAFETY
In Luckie v. United Parcel Service, Inc., ARB Nos. 05-026, 05-054, ALJ No. 2003-STA-39 (ARB June 29, 2007), the Complainant was the security manager for the Respondent's Alabama district. His primary responsibilities were to direct his staff in resolving customers' claims for lost, stolen, or damaged packages; investigate incidents of employee theft and violations of UPS harassment and integrity policies; and oversee security at the company's facilities, including alarm systems and guard services. Following a package fire on a conveyor belt inside a sorting facility, the Complainant sent one of his investigators who reported back that the fire looked suspicious. The Complainant contacted the manager whose Department was responsible for UPS's compliance with federal hazardous materials statutes and regulations. When the Complainant concluded that the fire was not being properly investigated and that there was potential danger with possibly hazardous packages being unloaded, he contacted his district manager. Noting that an employee need demonstrate only a reasonably perceived violation of the underlying statute, the ALJ found that the Complainant's concerns about the fire were "in good faith," particularly in the wake of 9/11. The ARB agreed that the complaint to the district manager was "in good faith," but stated that the issue was whether the Complainant had a "reasonable belief" that the Respondent's actions were in violation of the STAA or a STAA regulation. Reversing the ALJ's finding that the Complainant had engaged in protected activity, the ARB wrote that "the purpose of the STAA is to promote highway safety, encourage the safe operation and maintenance of commercial motor vehicles, and protect the health and safety of operators. See 128 Cong. Rec. S32,510 (1982). We fail to see how a package fire caused by a possible malfunction of a conveyor belt in a sorting center such as the Montgomery hub could endanger public safety on the highways."
[STAA Whistleblower Digest V A] PROTECTED ACTIVITY; NON-SAFETY RELATED COMPLAINT ABOUT THE CONDITION OF THE VEHICLE IS NOT PROTECTED UNDER THE STAA
In Gage v. Scarsella Brothers, Inc., ARB No. 05-095, ALJ No. 2005-STA-21 (ARB Aug. 31, 2006),
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the ARB found that subtantial evidence supported the the ALJ finding that the Complainant's non-safety related complaint about a damaged fender was not protected activity under the STAA.
[STAA Whistleblower Digest V A]
REFUSAL TO DRIVE; ANALYSIS UNDER THE "ACTUAL VIOLATION" AND "REASONABLE APPRENSION" PRONGS
The ALJ's Recommended Decision and Order in Harris v. C&N Trucking, 2004-STA-37 (ALJ Sept. 8, 2004), contains an orderly and succinct analysis of a refusal-to-drive based complaint. In Harris, the Complainant expressed concerns about whether the truck was safe to drive because of play in the kingpins. The Respondent (a mechanic who performs repairs on its trucks) checked the truck, found normal wear for the age of truck but no damage or safety issue. The Complainant took the truck to a mechanic when the truck was assigned to him again, confirmed that there was play in the kingpins and at the right spring, and returned the truck and refused to make the delivery for fear that the wheels would fall off. The Respondent informed the Complainant that it was not possible for the wheels to fall off, and when the Complainant continued to refuse to drive, terminated his employment. Subsequently, the truck logged about 80,000 miles without complaint or incident.
The ALJ first analyzed the facts under the "actual violation" provision at 49 U.S.C. 31105(a)(1)(B)(i), and found that although the Complainant had not specified any specific regulations or laws, his complaint seemed to fall within the parameters of DOT regulations. The Complainant's position was essentially that it is a federal mandate that the driver be satisfied as to the working condition of the truck. Nonetheless, the ALJ noted that courts have stressed that the driver's level of satisfaction is not unfettered, but that a complainant must show by a preponderance of the evidence that an actual violation of the regulation would have occurred. Proof of the driver's subjective good faith opinion is not sufficient; a complainant must prove that his assessment of the condition is correct. The ALJ found that the Complainant's evidence in the instant case did not establish protected activity under the "actual violation" prong.
The ALJ then analyzed the facts under the "reasonable apprehension" provision at 49 U.S.C. 31105(1)(B)(ii). In the instant case there was no dispute that the Complainant refused to drive because of his safety concern, that he made the Respondent aware of the concern and sought to have the condition corrected. Thus, the focus was on whether the Complainant's apprehension of the problem was objectively reasonable. Under the reasonable apprehension prong, the Complainant did not need to establish an actual safety defect, but rather sufficient evidence indicating that his assigned vehicle could reasonably be perceived as unsafe. The ALJ summarized that when examining reasonableness under this prong, "relevant factors include the driver's apprehension about past experience, the vehicle's susceptibility to the defect at issue, whether other drivers have driven under similar circumstances, and the driver's experience." Slip op. at 7 (citations omitted). In the instant case, although the Complainant was an experienced driver, the Respondent was also an experienced mechanic and often repaired his own trucks and there was no evidence to support an assumption that the Complainant was more creditable than the Respondent in regard to the performance or safety of the Respondent's vehicles. The ALJ observed that "[t]he Complainant cannot simply insist upon a standard of care for his vehicles that is stricter than the normal or legal standard." Id. (citation omitted). The ALJ also took into account that other subsequent drivers of the same vehicle found no such concerns, and the principle enunciated in Pensyl v. Catalytic, Inc., 1983-ERA-2 (Sec'y Jan. 13, 1984), that an important factor in determining reasonableness is whether the employer has investigated the hazard, determined the vehicle was safe, and informed the employee of that determination. Thus, the ALJ found that the Complainant had failed to demonstrate that a reasonable person, under the circumstances, would conclude that there was a bona fide danger of accident or injury. The Complainant's subjective good faith opinion alone did not demonstrate an objectively reasonable apprehension of serious injury.
[STAA Digest V A]
PROTECTED ACTIVITY; REFUSAL TO SUBMIT TO A RANDOM DRUG TEST
Refusal to take a random drug test is not protected activity under the whistleblower provision of the STAA. Because it was undisputed that the Complainant was fired for this reason, the ALJ properly dismissed the complaint as a matter of law. Bergman v. Schneider National, ARB No. 03-155, 2004-STA-19 (ARB Apr. 29, 2005).
[STAA Whistleblower Digest V A]
PROTECTED ACTIVITY; MANNER OF RAISING COMPLAINT; COMPLAINANT MAY BE DISCIPLINED FOR NOT FOLLOWING PROCEDURE
In Harrison v. Administrative Review Board, __ F.3d __, No, 03-4428 (2d Cir. Nov. 30, 2004) (case below ARB No. 00-048, ALJ No. 1999-STA-37), the Respondent had a procedure where if a yard switcher observed serious safety defects regarding a trailer, he could "red tag" the defective equipment. Under the Respondent's procedure, however, the switcher was required to obtain authorization from a supervisor before red tagging equipment. The Complainant was disciplined repeatedly for red tagging without authorization. The Second Circuit affirmed DOL's finding that the Complainant was not disciplined because he red tagged equipment, but because he did so without the authorization required under the Respondent's procedures. The court wrote: "The STAA prohibits employers from disciplining employees in retaliation for filing safety complaints; it also authorizes employees to refuse to drive unsafe vehicles. See 49 U.S.C. § 31105(a)(1). But it does not guarantee to employees the entitlement to use their own judgment to determine when to take equipment out of service. * * * An employee's entitlement to submit a complaint about a vehicle's safety would not mean that the employee was similarly entitled to attach the complaint to a rock and throw it through his supervisor's window. The employee's protected right to complain would not prevent Roadway from disciplining the employee for communicating his complaint by rock-throwing." (footnote omitted).
[STAA Whistleblower Digest V A] PROTECTED ACTIVITY; COMPLAINANT'S USE OF E MAIL AND WEBSITES TO HARASS WITNESSES AND OPPOSING COUNSEL
In Somerson v. Mail Contractors of America Inc., 2003 STA 11 (ALJ Jan. 10, 2003), Complainant asserted that Mail Contractors of America, Inc., its attorney, and that attorney's law firm, acted contrary to the employee protection provisions of the STAA by filing before the administrative law judge in Case No. 2002 STA 44 filings intended to induce the ALJ to dismiss a whistleblower complaint previously filed by Complainant against Mail Contractors. In that prior complaint, Respondent had filed a motion for a protective order, supporting that motion with copies of anonymous e mails to two witnesses and counsel for Respondent, and websites dedicated to haranguing counsel for Respondent, evidently created by the Complainant. The ALJ in that prior case found that Complainant's intimidation of witnesses and opposing counsel was so severe that he dismissed the claim outright, and certified the facts to the U.S. District Court with a request for appropriate remedy.
The ALJ considering the instant complaint found that it was "completely specious." The ALJ granted the Respondent's motion for summary decision, holding that Respondent's filing of a motion for a protective order was not an adverse employment action (observing, moreover, that Complainant's behavior in the prior ALJ proceeding was not protected activity), and that Respondent's attorney and his law firm were not Complainant's employer.
The ALJ found that Complainant's attorney's response to the motion for summary decision failed to address the legal issues in question and was nothing short of an irrelevant and vicious attack on Respondent's attorneys. The ALJ concluded that Complainant's attorney was more than a bystander to his client's attacks, and therefore reported the behavior to the relevant Board of Professional Responsibility. The ALJ wrote:
Th[e Complainant's attorney's] continuum of attacks, intimidation and harassment under the guise of representing a client constitutes an abuse of the administrative process. It wastes this Office's time and the valuable time of OSHA investigators. It perverts the use of an employee protection statute, the STAA. It violates an attorney's rules of professional responsibility, and constitutes a breech of the duty that an attorney owes his client.
(footnote omitted).
[STAA Whistleblower Digest V A] COMPLAINTS ABOUT YARD HORSES NOT PROTECTED AS THEY ARE NOT COMMERCIAL MOTOR VEHICLES WHERE THEY DID NOT LEAVE THE TERMINAL YARD
In Harrison v. Roadway Express, Inc., ARB No. 00 048, ALJ No. 1999 STA 37 (ARB Dec. 31, 2002), Complainant alleged, inter alia, that he engaged in protected activity by "red tagging" (out of service tagging) yard horses. The ARB, however, agreed with the ALJ's finding that because the yard horses were used wholly within the terminal, they were not commercial motor vehicles according to FHA regulations, and, therefore, red tagging of yard horses were not covered by the FMCSR [Federal Motor Carrier Safety Regulations] and, thus, cannot constitute protected activity under the STAA's whistleblower provision. See 49 C.F.R. § 390.5 (definition of "commercial motor vehicle").
The employee protection provision of the STAA, 49 U.S.C. app.
§ 2305, prohibits an employer from discharging an employee
for refusing to operate a motor vehicle "when such operation
constitutes a violation of any Federal rules, regulations,
standards or orders applicable to commercial motor vehicle
safety" [the "when" clause] or "because of
the employee's reasonable apprehension of serious injury to
himself or the public due to (the unsafe condition of such
equipment" [the "because" clause]. Boone v.
TFE, Inc., 90-STA-7 (Sec'y July 17, 1991).
[STAA Digest V A]
PROTECTED ACTIVITY; CONSIDERATION OF POSSIBLE PROTECTED
ACTIVITY OTHER THAN THAT EXPRESSLY ALLEGED BY COMPLAINANT
In Shannon v. Consolidated
Freightways, 96-STA-15 (ARB Apr. 15, 1998), the ALJ had considered
Complainant's protected activity exclusively in the terms alleged by Complainant. The ARB,
however, also considered other possible references to protected activity stated in Respondent's
"position of discharge" issued in relation to a local National Master Freight
Agreement hearing on the discharge.
V A 1 STAA purpose
Section 405(b) of the STAA prohibits discriminatory treatment of
employees for refusing to operate a vehicle "when such
operation constitutes a violation of any Federal rules,
regulations, standards, or orders applicable to commercial motor
vehicle safety or health . . . ." 49 U.S.C. app. §
2305(b). Discrimination also is prohibited for refusing to
operate a vehicle "because of the employee's reasonable
apprehension of serious injury to himself or the public due to
the unsafe condition of such equipment." Id. This
ground for refusal carries the further requirements (1) that the
unsafe condition causing the employee's apprehension of injury
must be such that a reasonable person, under the circumstances,
would perceive a bona fide hazard and (2) that the employee must
have sought from his employer, and have been unable to obtain,
correction of the unsafe condition.
Reed v. National Minerals Corp., 91-STA-34 (Sec'y
July 24, 1992).
[STAA Whistleblower Digest V A 2]
COMPLAINT PRONG; EVIDENCE OF DISOBEDIENCE IS NOT REQUIRED
Evidence of disobedience is not required in establishing coverage under the "complaint" prong of the STAA. Pugh v. Con-way Southern Express, ARB No. 03-142, ALJ No. 2003-STA-27 (ARB May 28, 2004).
[STAA Whistleblower Digest V A 2]
PROTECTED ACTIVITY UNDER SECTION 31105(a)(1)(A); PREPONDERANCE OF THE EVIDENCE; LACK OF CORROBORATING EVIDENCE
The ALJ weighed the testimony concerning whether the Complainant had raised the issue of over hours driving with the dispatcher or in a meeting with supervisors about his failure to deliver a load. The ALJ found that the Complainant did not establish by a preponderance of the evidence that he had made aN internal complaint protected by subsection (A) because no evidence corroborated the Complainant's version of events and because the dispatcher's and supervisors' testimony was as credible as that of the Complainant. The ARB found that the record supported these findings and affirmed the ALJ. Hilburn v. James Boone Trucking, ARB No. 04-104, ALJ No. 2003-STA-45 (ARB Aug. 30, 2005).
In Harrison v. Roadway Express, Inc., ARB No. 00 048, ALJ No. 1999 STA 37 (ARB Dec. 31, 2002), the ARB reviewed the caselaw relevant to what constitutes "filing a complaint" for purposes of establishing protected activity under the STAA. In conclusion, the ARB stated: "[T]he "filed a complaint" language of STAA § 31105 (a)(1)(A) protects from discrimination an employee who communicates a violation of a commercial motor vehicle regulation, standard or order to any supervisory personnel." (citation omitted; emphasis added). The ARB then considered whether Complainant's "red tagging" of trailers was a protected activity. Based on the sketchy evidence of record, the ARB concluded that red tagging meant notifying the relay dispatcher and the dock supervisor about any safety problems found with a trailer, obtaining approval for red tagging from Relay, filling out the tag, affixing the tag onto the unsafe trailer, moving the trailer to or from the dock, and, at the end of the shift, turning the bottom half of each tag in to the Relay Department.
The Board then determined that red tagging was not "filing a complaint" and therefore not protected activity. The ARB wrote: "Filling out the tag and affixing it to a defective trailer so that 'others,' i.e., non supervisory personnel, might be made aware of his safety concerns is not a communication to a supervisor about a violation of a commercial motor vehicle regulation, standard or order. Furthermore, turning in the bottom of the tag to management at the end of a shift was only a confirmation of Harrison's earlier oral, or computer generated, notification to his supervisors that he had found unsafe equipment." In other words, "filing a complaint" must be a communication to a supervisor concerning the safety of commercial motor vehicles and not merely a confirmation of an earlier safety complaint.
The ALJ had relied on Schulman v. Clean Harbors Envtl. Servs., Inc., ARB No. 99 015, ALJ No. 1998 STA 24 (ARB Oct. 18, 1999) (filing of Vehicle Inspection Reports (VIRs) constituted protected activity), in finding that the red tagging was protected activity. The ARB, however, distinguished Schulman on the ground that the purpose of VIRs was to apprize management of equipment defects, and the driver was also required to immediately inform an appropriate management official of defects. In contrast, the record in the instant case demonstrated that red tagging trailers did not constitute filing a complaint because it was not a communication to a supervisor concerning commercial motor vehicle safety.
A complaint need not explicitly mention a commercial motor
vehicle safety standard to be protected under the STAA's
whistleblower provision. The Secretary stated:
As long as the complaint raises safety concerns, the
layman who usually will be filing it cannot be expected to
cite standards or rules like a trained lawyer. The statute
requires only that the complaint "relate" to a
violation of a commercial motor vehicle safety standard.
Finally, the plain language of section 2305(a) protects all
complaints, whenever filed relating to any commercial motor
vehicle safety standard. There is no basis in either the
Act or its legislative history to read the limitation of
section 2305(b)(refusing to operate a vehicle when doing so
would violate a Federal safety standard) into
subsection (a).
Nix v. Nehi-RC Bottling Company, Inc., 84-STA-1 (Sec'y
July 13, 1984), slip op. at 8-9.
GRIEVANCE PROCEEDING MUST RELATE TO SAFETY
VIOLATION FOR TESTIMONY GIVEN AT SUCH PROCEEDING TO BE
PROTECTED UNDER THE STAA
[STAA Digest V A 2 b and V B 1 c ii]
In Yellow Freight System, Inc. v. Reich, No. 95-4135
(6th Cir. Dec. 16, 1996)(unpublished decision available at 1996 U.S. App.
LEXIS 33233)(case below, 89-STA-7), the court rejected the Secretary's
determination that a grievance proceeding of a co-worker at which
Complainant testified, was one relating to a violation of a commercial motor
vehicle safety rule, where the subject of the proceeding was to determine
whether the co-worker had or had not provided medical documentation for his
absence after being on the sick board for an extended period, rather than the
co-worker's fitness for driving. See 49 U.S.C. app. § 2305(a)
(Editor's note: this provision has been re-codified at 49 U.S.C. §
31105).
The court interpreted the Secretary's theory in the matter as follows:
that drivers who placed themselves on the sick board who are required to
provide medical substantiation of their illness may be pressured to return to
work before it is safe for them to do so; in their testimony at the grievance
proceeding, the co-worker and Complainant challenged the medical
substantiation requirement as unreasonable strict; this challenge turned the
grievance proceeding into one relating to a possible safety violation.
The court found, inter alia, that there was no evidence that the
medical substantiation requirement was challenged at the grievance
proceeding, and that "any relationship between the grievance proceeding
and a possible safety rule violation was far too attenuated to trigger the
protections of § 405(a)."
V A 2 b "Relating to" broadly construed
The STAA's statutory "relating to" language does not
restrict protection to participation in STAA proceedings.
Rather, protection extends to employees who have filed any
complaint or instituted or testified in any proceedings relating
to a violation of a spectrum of safety criteria. The language
contemplates proceedings arising under Department of
Transportation, other Federal, and state laws, and could
encompass arbitration and involve an employer's safety rules.
Moyer v. Yellow Freight System, Inc., 89-STA-7
(Sec'y Sept. 27, 1990) (order denying motion to vacate and
reopen).
V A 2 b Complaint need only to relate to safety standard
A STAA whistleblower complaint need not explicitly mention a
commercial motor vehicle safety standard to be protected.
"As long as the complaint raises safety concerns, the layman
who usually will be filing it cannot be expected to cite
standards or rules like a trained lawyer. The statute requires
only that the complaint 'relate' to a violation of a commercial
motor vehicle safety standard. Finally, the plain language of
section 2305(a) protects all complaints, whenever filed relating
to any commercial motor vehicle safety standard. There is no
basis in either the Act or its legislative history to read the
limitation of section 2305(b) (refusing to operate a vehicle when
doing so would violation a Federal safety standard) into
subsection (a)." Nix v. Nehi-RC Bottling Co.,
Inc., 84-STA-1 (Sec'y July 13, 1984).
V A 2 b Complaint did not allege an underlying
violation of a motor safety vehicle standard
In Perrine v. Poole Truck Line, Inc., 85-STA-13
(Sec'y Mar. 11, 1986), the Secretary adopted the ALJ's
recommendation that the complaint be dismissed because
Complainant did not engage in protected activity when he wrote to
Respondent's president concerning safety conditions in relation
to the width of Respondent's scales at one terminal.
The ALJ had noted that a pro se Complainant cannot be expected to
cite standards or rules like a trained lawyer but that the
statute requires that the complaint "relate" to a
violation of a commercial motor safety vehicle standard. He
wrote:
In this case, Complainant did not cite a specific
motor safety vehicle standard which has been violated. That
is not necessary. However, a review of the Department of
Transportation Federal Motor Carrier Safety Regulations 49
C.F.R. §325 et seq. did not bring to light any
regulation or standard which would apply to the facts of
this case. . . .
In short, there is no evidence in this record that
[Complainant's] complaint relates to a motor vehicle safety
standard applicable to the facts of this case. Although, it
is not necessary that a complaint expressly cite the
specific motor vehicle standard which it is alleged has been
violated, the complaint must "relate" to a
violation of a commercial motor vehicle safety standard.
That prerequisite to finding a violation of Section 405 has
not been met. Accordingly, [Complainant's] action in filing
the complaint in question cannot be considered protected
activity under the statute. The complaint should be
dismissed for that reason.
Perrine v. Poole Truck Line, Inc., 85-STA-13 (ALJ
Jan. 9, 1986).
V A 2 b STAA complaint need only be related to a
safety violation
Where the complainant was discussing his displeasure over having
to work excessive hours over the CB radio, his supervisor's
interjection into the conversation upon overhearing the
conversation transformed the conversation into a complaint to the
employer. Moravec v. HC & M Transportation,
Inc., 90-STA-44 (Sec'y July 11, 1991) (order of remand).
Under the STAA, an employee's complaint is protected if it is
"related" to a safety violation. Monteer v. Milky
Way Transport Company, Inc., 90-STA-9 (Sec'y July 31, 1990),
slip op. at 8, appeal docketed, No. 90-3943 (6th Cir. Oct.
26, 1990). Although the complainant did not refer in his
conversation to the hours of service regulation, and his
uppermost concern might have been that his assignment schedule
would interfere with plans for his wife's birthday, his
statements concerned workplace conditions subject to the Federal
service hours regulation (49 C.F.R. § 395.3(b)(1)),
providing those statements with sufficient nexus between
complaint and a safety violation to render his statement
cognizable under 49 U.S.C. § 2305(a). STAA complaints need
not refer to particular safety standards in order to be
protected. See Davis v. H.R. Hill, Inc., 86-STA-18 (Sec'y
Mar. 1987), slip op. at 5-6; Nix v. Nehi-R.C. Bottling
Co., 84-STA-1 (Sec'y July 31, 1984), slip op. at 8, aff'd,
Nehi-RC Bottling Co., Inc. v. Donovan, No. 89-1951 (4th Cir.
1985).
[Editor's Note: In her Decision and Order on Remand, the
Secretary found that "during the CB conversation, [the
complainant] objected having to work longer hours than
anticipated and that he already had logged more hours than
legally permissible." This finding is inconsistent with
the tenor of the decision and is directly contrary to the ALJ's
finding (see Moravec v. HC & M Transportation, Inc.,
90-STA-44 (ALJ Sept. 12, 1991) (decision and order on remand).
This factual inconsistency is not reconciled by the Secretary's
final decision (Sec'y Jan. 6, 1992). Given the entire
proceeding, it may be that the quoted language was the
Secretary's inartful way of saying that the number of hours
complained of by the complainant indicated that he had worked
more than legally permitted.]
Protection under the whistleblower provision of the STAA is not
dependent on actually proving a violation. Yellow Freight
System, Inc. v. Martin, 954. F.2d 353, 356-57 (6th Cir.
1992). Lajoie v. Environmental Management Systems,
Inc., 90-STA-31 (Sec'y Oct. 27, 1992).
[STAA Digest V A 2 c]
PROTECTED ACTIVITY; REFUSAL TO DRIVE
In Jackson v. Protein
Express,
95-STA-38 (ARB Jan. 9, 1997), the
Board emphasized that a refusal to drive is protected activity under the STAA
if the driver's
perception of the unsafe condition was reasonable at the time, even if
subsequent mechanical
inspection revealed no actual safety defect. See 49 U.S.C. §
31105(a)(1)(A)(2)
(reasonable apprehension of serious injury). Thus, in the instant case the
fact that the truck had
been inspected with no finding of a problem, and driven for 10 days following
Complainant's
work
refusal without incident, did not deprive Complainant's work refusal
protection given the facts
available to Complainant at the time he refused to drive.
V A 2 c Section 405(a) complaint not dependent on
underlying complaint successfully proving a
federal violation
The Secretary correctly interpreted section 405(a) of the STAA in
concluding that a complainant's protection under section 405(a)
for testifying at the grievance proceeding of a coworker is not
dependent on whether the coworker was actually successful in
proving a violation of a federal safety provision. "The
primary consideration is not the outcome of the underlying
grievance hearing, but whether the proceeding is based upon
possible safety violations." This interpretation does not
posit that the actual facts surrounding the grievance proceeding
are irrelevant to section 405(a) protection. Yellow
Freight System, Inc. v. Martin, 954 F.2d 353 (6th Cir.
1992).
V a 2 c STAA complaint relating to violation of
DOT regulations; need not ultimately be
determined to have merit
Where the complainant in an STAA action makes complaints to his
supervisor "relating to" alleged violations of
Department of Transportation regulations, these complaints
constitute protected activity under the STAA. A complaint is
protected under section 405(a) even if the alleged violation
complained about ultimately is determined to be meritless.
Allen v. Revco D.S., Inc., 91-STA-9 (Sec'y Sept. 24,
1991), slip op. at 6, n.3.
Hernandez v. Guardian Purchasing Co., 91-STA-31
(Sec'y June 4,1992).
V A 2 c Reasonable belief that complaint was about
safety hazard; impropriety of granting summary
decision against Complainant whose asserted
protected activity was refusal to plead guilty to
overload citation
In Schuler v. M & P Contracting, Inc., 94-STA-
14 (Sec'y Dec. 15, 1994), the ALJ recommended dismissal of the
complaint on the ground that the Complainant did not engage in
protected activity when he refused to plead guilty to a state
citation for operating an overweight motor vehicle. Although the
Secretary agreed with the ALJ that to be protected, an
employee's complaint must relate to a safety rule, regulation,
standard or order, the Secretary noted that he has held that, to
be protected, a complainant need only show that he reasonably
believed he was complaining about a safety hazard.
Since it was not clear from the record why Complainant refused to
plead guilty to the overload citation, the Secretary remanded the
case instructing that the ALJ should give Complainant an
opportunity to show that his refusal to plead guilty to the
overload citation was based in part on safety concerns.
V A 2 c Safety complaint protected under STAA
even if ultimately found meritless
A complaint related to a safety violation is protected under
section 2305(a) of the STAA even if the complaint is ultimately
determined to be meritless. Barr v. ACW Truck Lines,
Inc., 91- STA-42 (Sec'y Apr. 22, 1992).
V A 2 c Scope of STAA § 2305(a); Complaint
related to safety violation protected
even if meritless
Any complaint related to a safety violation is protected under
section 2305(a) of the STAA, which prohibits discharge of an
employee "because such employee has filed any complaint
relating to a violation of a commercial motor vehicle safety
rule, [or] regulation..." 49 U.S.C. app. § 2305(a),
even if the complaint is ultimately determined to be meritless.
Allen v. Revco D.S., Inc., 91-STA-9 (Sec'y Sept.
24, 1991), citing Stack v. Preston Trucking Co., 86-STA-22
(Sec'y Feb. 26, 1987).
V A 2 c Whether safety violation must be
established
In Doyle v. Rich Transport, Inc., 93-STA-17 (Sec'y
Apr. 1, 1994), the Secretary noted that, at least in the Second
Circuit, it must be shown that the condition complained about
actually violated a federal safety regulation to establish a
section 405(b) complaint. See Yellow Freight System, Inc. v.
Martin, 983 F.2d 1195 (2d Cir. 1993). Nonetheless, the Sixth
Circuit has agreed with the Secretary's interpretation that
section 405(a) protection is not dependent on actually proving a
violation of a federal safety provision. See Yellow Freight
System, Inc., v. Martin, 954 F.2d 353, 357 (6th Cir. 1992).
Rather, it is sufficient to show reasonable belief in a safety
hazards.
V A 2 c Validity of underlying claim not required
In cases involving participation, e.g., making complaints or
offering testimony, the discriminatee need not prove the validity
of the underlying claim in order to prevail.
Moyer v. Yellow Freight System, Inc., 89-STA-7
(Sec'y Sept. 27, 1990) (order denying motion to vacate and
reopen).
In Webb v. Hickory Springs, Inc., 94-STA-20 (Sec'y
Aug. 5, 1994), the evidence established that Complainant was
fatigued, and that he engaged in protected activity when he
complained about fatigue and refused to drive while fatigued.
Complainant "refusal" came in the form of inadvertently
falling asleep.
Nonetheless, the record revealed that these activities did not
motivate Respondent to suspend the Complainant. Specifically,
the person who suspended Complainant did not even know about
Complainant being fatigued until well after he had made the
suspension decision. Thus, there was no prima facie showing of
discrimination under section 405(a).
Based on credibility of the witnesses, it was found in regard to
the work refusal issue that the Respondent suspended the
Complainant for insubordination rather than protected activity.
RESPONDENT'S ADDRESSING OF SAFETY CONCERN
[STAA Digest V A 2 d]
In Patey v. Sinclair Oil
Corp., 96-STA-20 (ALJ Aug. 2, 1996), adopted (ARB Nov. 12, 1996),
Complainant
expressed concerns about the method for refueling locomotives. Respondent
fully addressed
those concerns, but Complainant still felt uneasy about the refueling and
informed Respondent
that he did not wish to do it in the future, after which Complainant was
discharged. The ALJ
found that Complainant's valid safety concerns had been corrected by
Respondent, and that his
other concerns were simply apprehension on the part of Complainant and did not
constitute
protected activity.
V. A. 2. d. Resolved safety complaints
In Webb v. Hickory Springs, Inc., 94-STA-20 (Sec'y
Aug. 5, 1994), the evidence established that Complainant was
fatigued, and that he engaged in protected activity when he
complained about fatigue and refused to drive while fatigued.
Complainant "refusal" came in the form of inadvertently
falling asleep.
Nonetheless, the record revealed that these activities did not
motivate Respondent to suspend the Complainant. Specifically,
the person who suspended Complainant did not even know about
Complainant being fatigued until well after he had made the
suspension decision. Thus, there was no prima facie showing of
discrimination under section 405(a).
Based on credibility of the witnesses, it was found in regard to
the work refusal issue that the Respondent suspended the
Complainant for insubordination rather than protected activity.
[Editor's note: Prior to recodification, 29 USC
§ 2305(b) was frequently referred to as having a
"when" or "federal violation" clause, and a
"because" or "reasonable apprehension"
clause. New section 31105(a)(1)(B) leads into both clauses with
a "because", with the result that the old shorthand way
of referencing the clauses can no longer be used.]
[STAA Whistleblower Digest V A 3]
PROTECTED ACTIVITY; PROTECTION NOT LIMITED TO FEDERAL LAWS, BUT NONETHELESS MUST RELATE TO SPECIFIC REGULATION, STANDARD OR ORDER
The STAA whistleblower provision protection extends beyond just complaints relating to federal motor vehicle safety regulations, but any relevant motor vehicle regulation, standard or order. Chapman v. Heartland Express of Iowa, ARB No. 02 030, ALJ No. 2001 STA 35 (ARB Aug. 28, 2003) (as reissued under Sept. 9, 2003 errata) (general complaints about fatigue were not protected as they did not relate to a violation of any particular motor vehicle regulation, standard or order).
[STAA Whistleblower Digest V A 3 and 4]
ABSENCE OF HIGHWAY USE TAX STICKER DOES NOT IMPLICATE SAFETY, BUT TAX ISSUES
In Forrest v. Transwood Logistics, Inc., 2001-STA-43 (ALJ Aug. 7, 2001), the ALJ found that, although the truck Complainant was driving did not have a New York Highway Use Tax sticker, the absence of such a sticker was not a safety matter as alleged by Complainant, but rather related to a tax and not safety. Therefore this issue did not support a whistleblower complaint under section 31105(a)(1)(B)(i). The ALJ also found that no reasonable person could conclude that absence of a HUT sticker established a real danger of accident, injury or serious impairment to health, and therefore a whistleblower complaint under section 31105(a)(1)(B)(ii) was not supported.
[STAA Digest V A 3 a]
FEDERAL MOTOR SAFETY VIOLATION; COVERAGE OF EMPLOYEE WHO
CAUSES ILLEGALITY TO BE CORRECTED
In Beveridge v. Waste Stream
Environmental, Inc., 97-STA-15 (ARB
Dec. 23, 1997), the ARB rejected the ALJ's conclusion that there is a
distinction under the
statutory provision covering a "federal motor safety violation" --
49 U.S.C. §
31105(a)(1)(B)(i) -- between the inaction of an employee, which would
be covered, and
the action of an employee, which would not be covered. The ARB found
that this
reasoning would result in a refusal to drive an overweight vehicle not being
covered if the load
was reduced by the employee to a legally acceptable level and then delivered.
The ARB held
that "[a]n employee who refuses to drive illegally does not lose his STAA
protection by
correcting the illegality and then proceeding to drive." Slip op. at 3.
[STAA Digest V A 3 a]
FEDERAL MOTOR SAFETY VIOLATION; REFERENCE TO LAWS OF LOCAL
JURISDICTION
The statutory provision covering a "federal motor safety violation"
-- 49
U.S.C. § 31105(a)(1)(B)(i) -- incorporates the laws of the jurisdiction
in which the vehicle
is being operated. See 49 C.F.R. § 392.2. Beveridge v. Waste Stream
Environmental, Inc., 97-STA-15 (ARB Dec. 23, 1997) (Complainant
shortloaded
his vehicle because he did not accept Employer's explanation that it had
contacted the pertinent
state agency and been told that it could continue to operate its vehicle
because; that overweight
registrations had not been sent out because of administrative backlogs;
Complainant believed he
needed physical possession of sticker to operate an overweight vehicle; ARB
found that under
state law, the registration need not be carried, but merely available).
REFUSAL TO DRIVE; REQUIREMENT OF ACTUAL REFUSAL [STAA Digest V A 3 a]
An employee must actually refuse to operate a vehicle to be
protected under the refusal to drive provision of the STAA. 49
U.S.C. § 31105(a)(1)(B). Williams v. CMS
Transportation Services, Inc., 94-STA-5 (Sec'y Oct. 25,
1995).
In Minne v. Star Air, Inc., ARB No. 05-005, ALJ No. 2004-STA-26 (ARB Oct. 31, 2007), the
ALJ concluded that the Complainants ceased driving "because they believed that
the trucks that they were assigned to drive were not in compliance with the
applicable regulations."� The ALJ found that this perception was "justified,"
although it "may have been mistaken."� Having made these two findings, the ALJ
appeared to have concluded that the refusals based upon this justified
perception constituted "protected activity."� The ARB, thus, concluded that the
ALJ appeared to have applied the standard applicable to a complaint brought
under the STAA's complaint provision, 49 U.S.C.A. § 31105(a)(1)(A).� However,
the Complainants brought their complaint under the (B)(i) refusal to drive
provision.� The ARB observed that it had repeatedly held that under the refusal
provision, a complainant must prove that an actual violation would have
occurred, and a reasonable and good faith belief is not enough.� Because the
ALJ had not made a clear finding as to whether, at the time of the refusal to
drive, driving would have violated an applicable regulation, the ARB remanded
for a determination on this issue.
In a footnote, the ARB observed:
Where a complainant brings his complaint only under the
STAA's refusal provision, we must not find a violation under the complaint
provision unless the employer had notice of or actually litigated a section (a)
complaint. SeeYellow Freight Sys., Inc. v. Martin, 954
F.2d 353, 356-57 (6th Cir. 1992) (where complainant raised only a refusal claim
under section (b) and not a complaint claim under section (a), Secretary
violated Due Process by finding that employer violated section (a)).
There is no indication in the record that Minne and Privott made a
section (a) complaint, or that such a complaint was litigated at the
hearing. Moreover, there is no indication in the record that Minne and
Privott engaged in or argued that they engaged in a refusal protected under
section (B)(ii), despite their apparent attempt to recast their complaint on
appeal. See Complainants' Brief (CB) at 5 (arguing that conditions
at Star put Minne and Privott in "extreme danger"), 9-10 (citing to (B)(ii)).
Therefore, we consider only whether Minne and Privott engaged in activity
protected under the (B)(i) refusal provision.
USDOL/OALJ Reporter at n.9.
V A 3 b Requirement of actual
violation under when
clause
Refusing to drive when the contemplated run would cause a
violation of a Federal motor carrier safety regulation is a
protected activity under STAA subsection 405(a)(1)(B)(i) if the
driver informed his employer of the safety basis for the
refusal.
Paquin v. J.B. Hunt Transport, Inc., 93-STA-44
(Sec'y July 19, 1994), slip op. at 5; Asst Sec. and
Waldrep v. Performance Transport, Inc., 93-STA-23 (Sec'y
Apr. 6, 1994), slip op. at 8 (complainant's remark to
employer about no longer driving "illegally"
sufficient to establish protected refusal to drive).
To come within the protection of this provision, the complainant
must also show that an actual violation of a regulation would
have occurred; it is not sufficient that the driver had a
reasonable belief about a violation.
Yellow Freight System, Inc. v. Reich, 38 F.3d 76
(2d Cir. 1994); Robinson v. Duff Truck Line, Inc.,
86-STA-3 (Sec'y Mar. 6, 1987), slip op. at 12-13, aff'd,
Duff Truck Line, Inc. v. Brock, 848 F.2d 189 (6th Cir.
1988)(per curiam) (unpublished decision available at 1988
U.S. App. LEXIS 9164); Brame v. Consolidated
Freightways, 90-STA-20 (Sec'y June 17, 1992), slip op.
at 3.
In Nolan v. AC Express, 92-STA-37 (Sec'y Jan. 17,
1995), where there was evidence that to comply with a company
directive that drivers must reach Cleveland from Buffalo at a
certain hour, drivers would have to speed or skip the DOT
required pre-trip inspection, the Complainant established that he
engaged in protected activity under section 405(a)(1)(B)(i).
SECTION 31105(a)(1)(B)(I) REQUIRES SHOWING OF ACTUAL
VIOLATION
[STAA Digest V A 3 b]
A STAA complaint under 49 U.S.C. §
31105(a)(1)(B)(I) requires that a complainant show an
actual violation of a commercial motor vehicle
safety regulation; it is not sufficient that the driver has
a reasonable good faith belief about a violation.
Cook v. Kidimula International, Inc., 95-STA-
44 (Sec'y Mar. 12, 1996).
V A 3 b Requirement of actual violation under
31105(a)(1)(B)(i)
In order to prevail under 49 U.S.C. § 31105(a)(1)(B)(i), the
complainant must prove by a preponderance of the evidence that an
actual violation of a regulation, standard, or order of the
United States would have in fact occurred had the complainant
operated the vehicle. The complainant's good faith belief that
the vehicle was unsafe in violation of a safety regulation is not
sufficient, standing alone, to prove a violation under section
31105(a)(1)(B)(i).
Brunner v. Dunn's Tree Service, 94-STA-55 (Sec'y
Aug. 4, 1995) (Complainant failed to establish an actual
violation where no other employee noted problems; vehicle passed
inspection about 1 1/2 months before the work refusal; vehicle
also passed a surprise inspection about one month after
complainant's discharge with no evidence of repairs in the
interim).
V A 3 b Section 405(b) case; requirement that actual
violation would have occurred
To invoke protection under 49 U.S.C. § 2305(b), a
Complainant must prove that an actual violation would have
occurred. Thus, where the Complainant had only 6 additional
miles to drive and 30 minutes to do so without violating the
seventy-hour on-duty regulation at 49 C.F.R. § 395.3(b)(2),
he did not establish by a preponderance of the evidence that he
would have violated DOT regulations had he not refused to drive
as scheduled. Although the Complainant contended that a
violation would have occurred because of the time it would take
to unload the truck, Respondent's evidence showed that the
Complainant would have been logged off-duty upon arrival.
Ass't Sec'y & Boyles v. Highway Express, Inc.,
94-STA-21 (Sec'y July 13, 1995).
V A 3 b Sufficiency of evidence;
complainant's subjective opinion
Testimony of subjective pain is entitled to significant weight
and severe headaches can be debilitating enough to prevent a
driver from continuing to operate a vehicle. A driver's
communication to the dispatcher of his reason for leaving early
is evidence of a good faith belief in a hazard. Self v.
Carolina Freight Carriers Corp., 89-STA-9 (Sec'y Jan. 12,
1990).
V A 3 b Complainant's notion of safety more
stringent than state or federal laws
In Wiggins v. Roadway Express, Inc., 84-STA-7
(Sec'y Aug. 9, 1985), the Secretary adopted the ALJ's conclusion
that Complainant did not have a reasonable apprehension of an
unsafe condition when he refused to drive a tractor-trailer with
two front tires Complainant thought to be unsafe. The ALJ
conclude that the tires in question complied with federal
standards, and with Georgia law which was even more stringent
than the federal standards. Because Complainant's rejection of
the tires was more stringent than those imposed by law, his
subjective notion of "good working order" did not
justify his refusal to drive the vehicle.
V A 3 b Complainant's subjective opinion
The Secretary rejected the position that section 2305(b) is
violated whenever a driver has a reasonable and good faith belief
that it is unsafe to drive. Section 392.14 of the regulations
prohibits the operation of a vehicle when the weather conditions
are in fact such that the vehicle cannot be operated safely. The
Secretary noted that a determination as to whether such
conditions exist requires the exercise of subjective judgement
and is ordinarily made on the basis of information available at
the time, but that determination is not reserved to the driver
alone. In fact, the regulations also impose a duty upon the
carrier to determine whether the vehicle can be safely operated
under the existing conditions. Robinson v. Duff Truck
Line, Inc., 86-STA-3 (Sec'y Mar. 6, 1987), aff'dDuff Truck Line, Inc. v. Brock, 48 F.2d 189 (6th Cir.
1988)(per curiam)(unpublished decision available at 1988 U.S.App.
9164).
V A 3 b Sufficiency of evidence; complainant's
subjective opinion -- first clause STAA
A complainant's unsubstantiated, subjective opinion is
insufficient to establish a violation under section 2305(b), even
if it represents good faith. See Robinson v. Duff Truck Line,
Inc., 86-STA-3 (Sec'y Mar. 6, 1987), slip op. at 12, aff'd
Duff Truck Line, Inc. v. Brock, No. 87-3324 (6th Cir. 1988)
(LEXIS, Genfed Library, Court of Appeals file). Rather, to
invoke protection under the first clause of Section 2305(b), a
complainant must prove that his assessment of the condition is
correct. Robinson, slip op. at 12 n.7. Brame v.
Consolidated Freightways, 90-STA-20 (Sec'y June 17,
1990).
The operation of a vehicle may constitute a violation of 49
U.S.C. app. § 2305(b) either presently or over time
prospectively where it is inevitable that a violation must occur;
there is no requirement in this provision that the driver's
operation of the vehicle must immediately violate a federal rule
or regulation.
Thus, where a violation of DOT driving time regulations, 49
C.F.R. § 395.3 is necessarily contemplated in a dispatch
order, albeit at a somewhat later time, the order is regarded as
requiring the operation of a motor vehicle contrary to federal
rules and regulations, and consequently a driver's refusal is
protected under the STAA provision which prohibits an employer
from discharging an employee for refusing to operate a motor
vehicle "when such operation constitutes a violation of any
federal rules, regulations, standards or orders applicable to
commercial motor vehicle safety." 49 U.S.C. app. §
2305(b).
The Secretary distinguished Brothers v. Liquid Transporters,
Inc., 89-STA-1 (Sec'y Feb. 27, 1990), in which it was held
that a driver without available driving hours may be ordered to
begin a run by resting in the sleeper berth while his partner
drives because the Brothers complainant was only
instructed to begin a rest break and not to operate a commercial
motor vehicle, and because in Brothers there was no
mandatory delivery time requiring violation of Department of
Transportation driving time regulations.
Boone v. TFE Inc., 90-STA-7 (Sec'y July 17,
1991).
[STAA Digest V A 3 c]
"ANTICIPATORY FATIGUE"
"Neither Somerson [v. Yellow Freight System, Inc., ARB Nos.
99-005, 036; ALJ Nos. 98-STA-9, 11 (ARB Feb. 18, 1998)] nor prior Secretary and ARB
decisions should be read to exclude coverage of claims under [STAA Section
405(a)(1)(B)(i)] that are predicated on anticipatory fatigue. Instead, these cases stand for
the proposition that a complainant must provide some proof that his or her ability will
likely become impaired due to fatigue." Stauffer v. Wal-Mart Stores, Inc., ARB
No. 99-107, ALJ No. 1999-STA-21, slip op. at 11 (ARB Nov. 30, 1999) (footnotes omitted).
V A 3 c Preponderance of the evidence standard
Section 2305(b) prohibits employment discrimination for refusing
to operate a vehicle when operation constitutes a violation of
any Federal commercial motor vehicle safety rule, regulation,
standard, or order. Regulatory section 392.3 expressly states
that a fatigued driver may not operate a motor vehicle, and a
carrier may not require or permit a fatigued driver to do so.
Failure to observe these restrictions would result in their
violation as that term is commonly understood. Contrary to the
Department of Transportation's interpretation of the regulation
requiring a knowing or willful violation, the Secretary held that
the proper test under the STAA is proof of the violation by a
preponderance of the evidence. Self v. Carolina Freight
Carriers Corp., 89-STA-9 (Sec'y Jan. 12, 1990).
In Paquin v. J.B. Hunt Transport, Inc., 93-STA-44
(Sec'y July 19, 1994), the Complainant asserted that he was
discharged in part because of his refusal to drive in violation
of the hours of service regulation. On review, the Secretary
noted that the Complainant had attempted to offer his log books
into evidence, the ALJ declined to receive them. For purposes of
the decision, the Secretary assumed that the contemplated
dispatch would have violated the 70 hour rule of 49 C.F.R. §
395.3(b)(2).
The Secretary found that Complainant did not establish a prima
facie case, and that even if he had, he did not show that the
Respondent's articulated reason for discharge was pretext.
V A 3 d Whether safety violation must be
established
In Doyle v. Rich Transport, Inc., 93-STA-17 (Sec'y
Apr. 1, 1994), the Secretary noted that, at least in the Second
Circuit, it must be shown that the condition complained about
actually violated a federal safety regulation to establish a
section 405(b) complaint. See Yellow Freight System, Inc. v.
Martin, 983 F.2d 1195 (2d Cir. 1993). Nonetheless, the Sixth
Circuit has agreed with the Secretary's interpretation that
section 405(a) protection is not dependent on actually proving a
violation of a federal safety provision. See Yellow Freight
System, Inc., v. Martin, 954 F.2d 353, 357 (6th Cir. 1992).
Rather, it is sufficient to show reasonable belief in a safety
hazards.
V A 3 d Authority of Secretary and ALJ to find
violation of Federal safety regulation in absence
of citation by a motor vehicle inspector
In Zessin v. ASAP Express, Inc., 92-STA-33 (Sec'y
Jan. 19, 1993), the ALJ found that the operation of respondent's
truck, which had smoke covered windows and warped and loose
fitting mirrors resulting from a fire at one of respondent's
warehouses, violated the "when clause" of the STAA
whistleblower provision because of violation of Federal
regulations governing windshields, 49 C.F.R. § 393.60(b),
and rear view mirrors, 49 C.F.R. § 393.80(a). The
respondent's position on review by the Secretary was that the ALJ
had no authority to construe Federal motor carrier safety
regulations because no evidence was introduced to show that the
truck was cited for a Federal safety violation.
The Secretary noted that both the Secretary and DOL ALJs may
determine whether operating a vehicle would constitute violation
of a Federal safety regulation, even in the absence of a citation
by a motor vehicle inspector.
See, e.g., Davis v. H.R. Hill, Inc., 86-STA-
18 (Sec'y Mar. 19, 1987), slip op. at 5-6 (in absence
of citation, finds violation of Federal safety
regulations governing vehicle parts and accessories,
lighting, and electrical equipment).
See also Robinson v. Duff Truck Line, Inc.,
86-STA-3 (Sec'y Mar. 6, 1987), slip op. at 9-10
(interprets Federal motor carrier safety regulation in
absence of DOT or court interpretation), aff'd sub
nom., Duff Truck Line, Inc. v. Brock, No. 87-3324
(6th Cir. May 4, 1988); Spinner v. Yellow Freight
System, Inc., 90-STA-17 (Sec'y May 6, 1992), slip
op. at 17-18 (finds violation of safety regulation
notwithstanding DOT Chief Counsel opinion letter that
no violation occurred), appeal docketed, No. 92-
4074 (2d Cir. May 12, 1992).
In the instant case, the complainant had requested a state police
officer to inspect his vehicle. The officer testified that the
mirrors and windows made vision difficult, but did not issue a
citation. He explained that if he had issued a citation, it
could only have been against the complainant rather than the
company that owned the truck. The Secretary agreed with the
ALJ's conclusion that the officer was unwilling to admit that the
vehicle violated a safety regulation because he chose not to
issue a citation taking the vehicle out of service. Thus, there
was ample basis for the ALJ to conclude that notwithstanding the
officer's statement to the contrary, the operation of the vehicle
in its damaged condition violated Federal safety regulations
governing windshields and rear view mirrors.
Moreover, protection under the STAA is not dependent on actually
proving a violation; a possible safety violation is sufficient.
Yellow Freight System, Inc. v. Martin, 954 F.2d 353, 356-
357 (6th Cir. 1992).
V. A. 3. d. Authority of DOL to find safety violation;
standard of proof
In Paquin v. J.B. Hunt Transport, Inc., 93-STA-44
(Sec'y July 19, 1994), the Complainant asserted that he was
discharged in part because of his refusal to drive in violation
of the hours of service regulation. On review, the Secretary
noted that the Complainant had attempted to offer his log books
into evidence, the ALJ declined to receive them. For purposes of
the decision, the Secretary assumed that the contemplated
dispatch would have violated the 70 hour rule of 49 C.F.R. §
395.3(b)(2).
The Secretary found that Complainant did not establish a prima
facie case, and that even if he had, he did not show that the
Respondent's articulated reason for discharge was pretext.
In Bethea v. Wallace Trucking Co., ARB No. 07-057, ALJ No. 2006-STA-23 (ARB Dec. 31, 2007), the ARB found that substantial evidence supported the ALJ's finding that the Complainant had not had a reasonable belief that an STAA violation had occurred when he made an hours-of-service complaint and a complaint about a fuel leak. In affirming the ALJ, the Board wrote: "For a finding of protected activity under the complaint clause of the STAA, [the Complainant] must at least be acting on a reasonable belief regarding the existence of a safety violation." USDOL/OALJ Reporter at 8 (footnote omitted).
V A 3 e Correction of unsafe
condition
The requirement that the employee seek correction of the unsafe
condition applies only to section 2305(b) and only where the
refusal to drive is based on a reasonable apprehension of injury
due to the unsafe condition of the vehicle. It does not apply to
the refusal to drive in violation of a federal safety rule or
regulation. Juarez v. Ready Trucking Co., 86-STA-
27 (Sec'y July 7, 1988).
[STAA Digest V A 3 e]
SEEKING CORRECTION OF CONDITION NOT REQUIRED UNDER REFUSAL TO
DRIVE BASED ON SAFETY VIOLATION COMPLAINT (AS OPPOSED TO REFUSAL
BASED ON FEAR OF INJURY)
In Petit v. American Concrete Products, Inc., 1999-STA-47, slip op. at
3 n.1 (ALJ Apr. 27, 2000), the ALJ found that Complainant could not recover under the refusal
to drive due to reasonable apprehension of serious injury rule, because he did not seek to have the
truck he refused to drive repaired. The ALJ, however, found that the requirement that the
employee seek the correction of the unsafe condition does not apply to section 31105(a)(1)(B)(i),
(refusal to drive based on a safety violation), and that because he found that there were faulty
brakes on the truck, Complainant's work refusal was protected by that subsection.
[STAA Digest V A 3 e]
FEDERAL MOTOR SAFETY VIOLATION; COVERAGE DEPENDS ON PROOF OF
ACTUAL VIOLATION -- MERE GOOD FAITH BELIEF IS NOT ENOUGH
Under the statutory provision covering a "federal motor safety
violation" -- 49
U.S.C. § 31105(a)(1)(B)(i) -- the complainant must show that the
operation of a vehicle
would have been a genuine violation of a federal safety regulation at the time
he or she refused to
drive -- a mere good-faith belief in a violation does not suffice. Beveridge v. Waste
Stream Environmental, Inc., 97-STA-15 (ARB Dec. 23, 1997).
[STAA Digest V A 3 e]
REASONABLE APPREHENSION OF INJURY NOT ELEMENT OF §
31105(a)(1)(A) SAFETY COMPLAINT
Where Complainant's asserted protected activity is an internal complaint about
safety pursuant to
49 U.S.C. § 31105(a)(1)(A), rather than refusal to drive pursuant to
§
31105(a)(1)(B)(ii), protection under the STAA is not contingent on
Complainant's reasonable
apprehension of injury. Pittman v.
Goggin
Truck Line, Inc., 96-STA-25 (ARB Sept. 23, 1997).
V A 3 e Because clause; requirement that complainant
have sought correction of unsafe
condition
Ordinarily, the reason for a work refusal should be communicated
to an employer, or at least an attempt at such communication
should be made.
In order to gain protection under the "because" clause
of STAA § 405(b), an employer "must have sought from
his Employer, and have been unable to obtain, correction of the
unsafe condition, a requirement subsuming attempted
communication. Although protection under the "when"
clause does not similarly depend on this requisite, a qualified
communication requirement is certainly rational and consistent
with the statute. Obsorn v.Cavalier Homes of Alabama, Inc.
and Morgan Drive Away, Inc., 89-STA-10 (Sec'y July 17,
1991) (citing Simpson v. Federal Mine Safety & Health Rev.
Com'n, 842 F.2d 453 (D.C. Cir. 1988)).
V A 3 e Section 31105(a)(1)(B) -- actual
violation
The "refusal to drive" provision, 49 U.S.C. §
31105(a)(1)(B), has two subparagraphs. To be protected under
subparagraph (i), the complainant must show that operating the
vehicle would have caused an actual violation of a motor carrier
safety regulation; it is not sufficient that the driver had a
reasonable belief about a violation. Where the Complainant did
not inspect an assigned vehicle or their vehicle condition
reports, he did not show that operating those vehicles would have
violation a safety regulation.
To be protected under subparagraph (ii), the employee must have a
reasonable apprehension of serious injury. An 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. In addition, the
employee must have sought from the employer, and had been unable
to obtain, correction of the unsafe condition. Because the
Complainant did not inspect the vehicles or their vehicle
condition reports, it could not be found that a reasonable person
in the Complainant's circumstances would conclude that a vehicle
had an unsafe condition that would pose a real danger. Further,
by not bringing any defect to his employer's attention, the
Complainant made no attempt to seek correction of any unsafe
conditions. (The Complainant had a prior bad experience with a
Peterbilt tractor, told his supervisor that Peterbilt's were
"pieces of junk", and asked for a Freightliner. The
Complainant, however, did not even glance at the vehicles)
[Editor's note: Prior to recodification, the
"refusal to drive" section was 29 USC § 2305(b).
This section was frequently referred to as having a
"when" or "federal violation" clause, and a
"because" or "reasonable apprehension"
clause. New section 31105(a)(1)(B) leads into both clauses with
a "because", with the result that the old shorthand way
of referencing the clauses can no longer be used.]
V A 3 e Communication clause applies only to because
clause
STAA section 405(b) protects an employee who refuses to operate a
commercial motor vehicle "when" such operation would
violate a federal motor vehicle standard or "because"
he reasonably apprehends serious injury due to the unsafe
condition of equipment. The second ground for refusal
("because" clause) carries the further requirement
found in the second sentence of the subsection that the unsafe
condition "causing the employee's apprehension of
injury" must be such that a reasonable person, under the
circumstances, would perceive a bona fide hazard. Section 405(b)
further stipulates that the employee must have sought from his
employer, and have been unable to obtain, correction of the
unsafe condition. These second and third sentences of section
405(b) limit only the second ground for refusal, i.e., the
"reasonable apprehension" ground contained in the
"because" clause of the first sentence. Duff Truck
Line, Inc. v. Brock, No. 87-3324 (6th Cir. May 4, 1988)
(unpublished decision available at 1988 U.S. App. LEXIS 9164;
table case at 848 F.2d 189), aff'g Robison v. Duff Truck Line,
Inc., 86-STA-3 (Sec'y Mar. 6, 1987). The language of the
third sentence ties protection to an attempt to obtain correction
of the unsafe condition referenced in the "because"
clause and the second sentence.
V A 3 e Reasonable apprehension clause applies only to
because clause
STAA section 405(b) protects an employee who refuses to operate a
commercial motor vehicle "when" such operation would
violate a federal motor vehicle standard or "because"
he reasonably apprehends serious injury due to the unsafe
condition of equipment. The second ground for refusal
("because" clause) carries the further requirement
found in the second sentence of the subsection that the unsafe
condition "causing the employee's apprehension of
injury" must be such that a reasonable person, under the
circumstances, would perceive a bona fide hazard. Section 405(b)
further stipulates that the employee must have sought from his
employer, and have been unable to obtain, correction of the
unsafe condition. These second and third sentences of section
405(b) limit only the second ground for refusal, i.e., the
"reasonable apprehension" ground contained in the
"because" clause of the first sentence. Duff Truck
Line, Inc. v. Brock, No. 87-3324 (6th Cir. May 4, 1988)
(unpublished decision available at 1988 U.S. App. LEXIS 9164;
table case at 848 F.2d 189), aff'g Robison v. Duff Truck Line,
Inc., 86-STA-3 (Sec'y Mar. 6, 1987). The language of the
third sentence ties protection to an attempt to obtain correction
of the unsafe condition referenced in the "because"
clause and the second sentence.
V A 3 e Complainant need only show that he/she refused
to drive in violation of a Federal safety rule in
order to establish protected activity
In Gohman v. Polar Express, Inc., 88-STA-14 (Sec'y
Nov. 14, 1988), the Secretary disagreed with the ALJ's statement
that "[e]ven if Complainant had presented adequate evidence
of refusal to drive in violation of 49 C.F.R. Part 395, (a
Federal motor carrier safety regulation) Complainant 'must have
sought from his employer, and have been unable to obtain
correction of the unsafe condition' in order to qualify for
protection under section 2305(b)." The Secretary held that
the statutory requirement that the employee must have sought
correction of the unsafe condition applies only where the refusal
to drive is because of the unsafe condition of the equipment, not
where the refusal to drive is because operation of the vehicle
would be in violation of a Federal safety rule.
V A 3 e STAA; work refusal based "Federal
violation" circumstances
An employee's refusal to drive an unsafe vehicle is protected
under the "Federal violation' circumstance even where there
is no proof that the employee sought correction of the unsafe
condition which prompted his/her work refusal.
Section 2305(b) of the STAA prohibits discriminatory treatment of
employees in either of two work refusal circumstances, i.e. the
"Federal violation" and "reasonable
apprehension" circumstances. The requirement that the
employee must have sought from his employer, and been unable to
obtain, correction of the unsafe condition limits only a work
refusal based on reasonable apprehension.
Hadley v. Southeast Coop. Serv. Co., 86-STA-24
(Sec'y June 28, 1991).
V A 3 e STAA; work refusal based on "reasonable
apprehension" circumstances
Where an employee refuses to work in "unsafe
conditions," the requirement that the employee must have
sought from his employer, and been unable to obtain, correction
of the unsafe condition limits only a work refusal based
on "reasonable apprehension." (Emphasis added).
A work refusal based on "Federal violation" is
protected even in the absence of proof that the employee sought
correction of the unsafe condition which prompted work refusal.
Hadley v. Southeast Coop. Serv. Co., 86-STA-24
(Sec'y June 28, 1991).
[Editor's note: Prior to recodification, 29 USC
§ 2305(b) was frequently referred to as having a
"when" or "federal violation" clause, and a
"because" or "reasonable apprehension"
clause. New section 31105(a)(1)(B) leads into both clauses with
a "because", with the result that the old shorthand way
of referencing the clauses can no longer be used.]
[STAA Whistleblower Digest V A 4]
PROTECTED ACTIVITY; REASONABLENESS OF COMPLAINANT'S TIRE INSPECTION PRACTICES; CREDIBILITY OF WITNESSES
DOT regulations governing transportation of hazardous loads at 49 C.F.R. § 397.17 do not require inspection of tires on non placard loads every two hours or 100 miles (whereas they do on placarded loads). Considering whether Complainant's routine practice of performing such inspections was nonetheless protected activity for purposes of 49 USCA § 3105(a)(1)(B)(ii) (the "reasonable apprehension" provision), the ARB found that substantial evidence supported the ALJ's conclusion that, absent a suspicion of a problem, Complainant's apprehension of tire failure was not reasonable. The ALJ's findings were largely based on credibility findings on the testimony of various witnesses. Monde v. Roadway Express, Inc., ARB No. 02 071, ALJ Nos. 2001 STA 22 and 29 (ARB Oct. 31, 2003).
[STAA Whistleblower Digest V A 4]
ABSENCE OF HIGHWAY USE TAX STICKER DOES NOT IMPLICATE SAFETY, BUT TAX ISSUES
In Forrest v. Transwood Logistics, Inc., 2001-STA-43 (ALJ Aug. 7, 2001), the ALJ found that, although the truck Complainant was driving did not have a New York Highway Use Tax sticker, the absence of such a sticker was not a safety matter as alleged by Complainant, but rather related to a tax and not safety. Therefore this issue did not support a whistleblower complaint under section 31105(a)(1)(B)(i). The ALJ also found that no reasonable person could conclude that absence of a HUT sticker established a real danger of accident, injury or serious impairment to health, and therefore a whistleblower complaint under section 31105(a)(1)(B)(ii) was not supported.
[STAA Digest V A 4 a]
REASONABLE APPREHENSION INCLUDES ANTICIPATORY FATIGUE;
REASONABLENESS OF RESPONDENT'S POLICY NOT AT ISSUE, BUT RATHER
REASONABLENESS OF COMPLAINANT'S APPREHENSION
The broad scope of STAA section 405(a)(1)(B)(ii) encompasses situations where a driver's
physical condition, including present or anticipated fatigue, causes an employee to have "a
reasonable apprehension of serious injury to the employee or the public." Somerson
[v. Yellow Freight System, Inc., ARB Nos. 99-005, 036; ALJ Nos. 98-STA-9,
11, slip op. at 14 n.13 (ARB Feb. 18, 1998). In Stauffer v. Wal-Mart Stores, Inc., ARB
No. 99-107, ALJ No. 1999-STA-21 (ARB Nov. 30, 1999), the ALJ was found to have misapplied
this standard when he found that Complainant failed to present evidence to establish that Respondent's
policy of awakening drivers to change trailers was unreasonable and thus a violation of section
405(a)(1)(B). The ARB held that "[i]t is not the reasonableness of [Respondent's] policy that is
at issue, but the reasonableness of [Complainant's] apprehension that he would be too fatigued to
operate his vehicle safely under the circumstances that he anticipated. ... It is entirely possible that
[Respondent] could have a policy which appears reasonable on its face, but which may still violate the
STAA based on the specific circumstances under which it is applied." Slip op. at 12-13
(citations omitted).
[STAA Digest V A 4 a]
ELEMENTS OF "BECAUSE" CLAUSE OF "WORK
REFUSAL" PROVISION
In order to establish a complaint under STAA § 405(b), 49 U.S.C. app. 2305(b), the
"because" clause of the "work refusal" provision, a complainant must
establish that (1) he or she refused to operate the vehicle because he or she was apprehensive of
an unsafe condition of the vehicle, (2) his or her apprehensive was objectively reasonable, (3) he
or she sought to have the respondent correct the problem, and (4) the respondent failed to do so.
Brink's, Inc. v. Herman, No. 96-4162
(2d Cir. June 25, 1998) (available at 1998 WL 337259)(case below 95-STA-4).
V A 4 a Section 31105(a)(1)(B)(ii) -- reasonable
apprehension
The "refusal to drive" provision, 49 U.S.C. §
31105(a)(1)(B), has two subparagraphs. To be protected under
subparagraph (i), the complainant must show that operating the
vehicle would have caused an actual violation of a motor carrier
safety regulation; it is not sufficient that the driver had a
reasonable belief about a violation. Where the Complainant did
not inspect an assigned vehicle or their vehicle condition
reports, he did not show that operating those vehicles would have
violation a safety regulation.
To be protected under subparagraph (ii), the employee must have a
reasonable apprehension of serious injury. An 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. In addition, the
employee must have sought from the employer, and had been unable
to obtain, correction of the unsafe condition. Because the
Complainant did not inspect the vehicles or their vehicle
condition reports, it could not be found that a reasonable person
in the Complainant's circumstances would conclude that a vehicle
had an unsafe condition that would pose a real danger. Further,
by not bringing any defect to his employer's attention, the
Complainant made no attempt to seek correction of any unsafe
conditions. (The Complainant had a prior bad experience with a
Peterbilt tractor, told his supervisor that Peterbilt's were
"pieces of junk", and asked for a Freightliner. The
Complainant, however, did not even glance at the vehicles)
[Editor's note: Prior to recodification, the
"refusal to drive" section was 29 USC § 2305(b).
This section was frequently referred to as having a
"when" or "federal violation" clause, and a
"because" or "reasonable apprehension"
clause. New section 31105(a)(1)(B) leads into both clauses with
a "because", with the result that the old shorthand way
of referencing the clauses can no longer be used.]
V A 4 a Reasonable apprehension standard
STAA section 405(b) protects an employee who refuses to operate a
commercial motor vehicle "when" such operation would
violate a federal motor vehicle standard ("when"
clause) or "because" he reasonably apprehends serious
injury due to the unsafe condition of equipment
("because" clause). The second ground for refusal
("because" clause) carries the further requirement
found in the second sentence of the subsection that the unsafe
condition "causing the employee's apprehension of
injury" must be such that a reasonable person, under the
circumstances, would perceive a bona fide hazard. Section 405(b)
further stipulates that the employee must have sought from his
employer, and have been unable to obtain, correction of the
unsafe condition. The second and third sentences of section
405(b) limit only the second ground for refusal, i.e., the
"reasonable apprehension" ground contained in the
"because" clause of the first sentence. Duff Truck
Line, Inc. v. Brock, No. 87-3324 (6th Cir. May 4, 1988),
aff'g Robinson v. Duff Truck Line, Inc., 86-STA-3 (Sec'y
Mar. 6, 1987). The language of the third sentence ties
protection to an attempt to obtain correction of the unsafe
condition referenced in the "because" clause and
the second sentence.
Turgeon v. Maine Beverage Container Services, Inc.,
93-STA-11 (Sec'y Nov. 30, 1993).
Editor's note: The Duff decision cited by the Secretary
is an unpublished decision reported as a table case: Duff
Truck Line, Inc. v. Brock, 848 F.2d 189 (6th Cir. May 4,
1988) (per curiam) (unpublished decision available at 1988 U.S.
App. LEXIS 9164).
V.A.4.a. Because clause
Under the STAA, it is unlawful to discriminate against an
employee for refusing to operate a vehicle "because of the
employee's reasonable apprehension of serious injury to himself
or the public due to the unsafe condition of [the]
equipment" ("because clause"). 29 U.S.C. §
2305(b). The test for such protection is stated in the statutory
language:
The unsafe conditions causing the employee's
apprehension of injury must be of such nature that a
reasonable person, under the same circumstances then
confronting the employee, would conclude that there is a
bona fide danger of accident, injury, or serious impairment
of health, resulting from the unsafe condition.
Id. The provision further requires that the employee must
have sought from his employer, and have been unable to obtain,
correction of the unsafe condition. Id.
Dutile v. Tighe Trucking, Inc., 93-STA-31 (Sec'y
Nov. 29, 1993).
In Thom v. Yellow Freight Systems, Inc., 93-STA-2
(Sec'y July 20, 1993), Respondent contended that for Complainant
to meet his burden of showing a reasonable apprehension of
injury, Complainant must show that an actual mechanical defect
existed. In support of this contention Respondent cited Brame
v. Consolidated Freightways, 90-STA-20 (ALJ Feb. 28, 1992),
adopted, (Sec'y June 17, 1992) and Perez v. Guthmiller
Trucking Co., 87-STA-13 (Sec'y Dec. 7, 1988). The ALJ found
both cases inapposite. In Brame the driver had persisted
in his refusal to drive even after the brakes he complained about
were tested and found to be safe, and he was informed of the
results of the testing. In Perez the Secretary accepted
the testimony of Respondent's witnesses that Complainant had not
complained and they were not aware of mechanical problems until
after Complainant left Respondent's employ. In sum, the ALJ
concluded that section 405 requires only that a complainant have
a reasonable apprehension of a hazardous condition. It does not
require that the hazardous condition later be confirmed. A
Hazardous condition is not considered unreasonable, as a matter
of law, because a subsequent inspection of the vehicle finds no
sign of the hazardous condition.
The ALJ also agreed with the analysis of Judge von Brand in
Boone v. TFE, Inc., 90-STA-7 (ALJ Mar. 28, 1991), adopted
without comment on this particular ruling (Sec'y July 17, 1991),
that the Secretary's ERA decision in Pensyl v. Catalytic,
Inc., 83-ERA-2 (Sec'y Jan. 13, 1984), is the appropriate
standard to apply in an STAA case for determining whether a
refusal to work is reasonable.
[STAA Digest V A 4 b]
HEARSAY; STATE OF MIND
In Jackson v. Protein
Express,
95-STA-38 (ARB Jan. 9, 1997), the
Board found that an ALJ erred in sustaining an objection to a question
eliciting testimony
concerning whether a mechanic advised Complainant not to drive an assigned
truck because it
was unsafe. The Board found that such testimony was admissible, not to show
that the
tractor-trailer was in fact unsafe, but to show Complainant's state of mind
when he refused to
drive the
truck. The Board stated that this testimony would be relevant to whether
Complainant had a
reasonable apprehension of serious injury. 49 U.S.C. § 31105(a)(1)(B).
REASONABLE APPREHENSION; REASONABLENESS DETERMINED BY
INFORMATION AVAILABLE AT TIME OF WORK REFUSAL [STAA Digest V A 4 b i]
The determination regarding whether or not a complainant was
reasonably apprehensive that driving a truck could result in
possible injury to himself of the public must focus on the
information available to the complainant at the time of the work
refusal. Caimano v. Brink's, Incorporated, 95-STA-
4 (Sec'y Jan. 26, 1996).
V A 4 b i Requirement of objective reasonableness under
31105(a)(1)(B)(i)
Under 49 U.S.C. § 31105(a)(1)(B)(ii), the complainant must
prove by a preponderance of the evidence that his or her alleged
reasonable apprehension of serious injury due to the vehicle's
unsafe condition was objectively reasonable.
Brunner v. Dunn's Tree Service, 94-STA-55 (Sec'y
Aug. 4, 1995) (Complainant failed to establish an objectively
reasonable belief where other employees with considerable
experience testified that the vehicle was operating well, and the
vehicle passed a surprise inspection about one month after
complainant's discharge).
5 A 4 b i 405(b) generally
Protection under section 405(b) of the STAA includes requirements
that "[t]he unsafe conditions causing the employee's
apprehension of injury must be of such nature that a reasonable
person, under the circumstances then confronting the employee,
would conclude that there is a bona fide danger of an accident,
injury, or serious impairment of health, resulting from the
unsafe condition" and that "the employee must have
sought from his employer, and have been unable to obtain,
correction of the unsafe condition."
Killcrease v. S & S Sand and Gravel, Inc., 92-
STA-30 (Sec'y Feb. 2, 1993).
V A 4 b i STAA work refusal; reasonable person
standard
In order to establish a protected refusal to drive under the
"because" clause, the unsafe condition must be of such
a nature that a reasonable person, under the circumstances then
confronting the employee, would conclude that there is a bona
fide danger of an accident, injury, or serious impairment of
health resulting from the condition. 49 U.S.C. app. §
2305(b). In considering claims under the "when"
clause, in situations in which the complainant is asserting an
illness or physical inability to drive the federal regulation at
49 C.F.R. § 392.3 may be consulted. This regulation
requires proof that the employee's ability or alertness was so
impaired as to make vehicle operation unsafe.
Smith v. Specialized Transportation Services, 91-
STA-22 (Sec'y Apr. 20, 1992).
In Thom v. Yellow Freight System, Inc., 93-STA-2
(Sec'y Nov. 19, 1993), the Secretary noted that the fact that the
assignment is successfully completed standing alone does not
necessarily prove that the mission was safe. Robinson v. Duff
Truck Line, Inc., 86-STA-3 (Sec'y Mar. 6, 1987), aff'd on
other grounds sub nom., Duff Truck Line, Inc., v. Brock, No.
87-3324 (6th Cir. May 4, 1988) (unpublished decision available at
1988 U.S. App. LEXIS 9164; table case at 848 F.2d 189), slip op.
at 7.
V A 4 b ii Repairs made later
In Dutile v. Tighe Trucking, Inc., 93-STA-31 (Sec'y
Nov. 29, 1993), the Secretary indicated that it is proper to look
to evidence that repair work was performed later in judging the
reasonableness of Complainant's refusal to drive.
V A 4 b ii Reasonable person
standard
Acknowledging that the sole reason it fired the Complainant was
because he refused to drive, the Employer argued that it was
unreasonable for the Complainant to refuse to drive and presented
evidence that none of its other drivers refused to drive. The
fact that other drivers decided to make their routes under the
same circumstances, and the fact that several of these drivers
testified that it was safe to drive and that they had no trouble,
was considered when weighing the evidence for reasonableness.
The ALJ also reviewed the National Weather Service records, the
Department of Commerce records, Complainant's testimony, and
other testimony concerning vehicular accidents during this
period, and concluded that the Complainant acted as a reasonable
person in refusing to drive. The ALJ found that the Complainant
established a violation of the STAA. Thomas v. Independent
Grocers of Abilene, Texas, 86-STA-21 (ALJ Jan. 28, 1987).
[Editor's note: The Secretary adopted the ALJ's Recommended
Decision and Order.]
In Chapman v. T.O. Haas Tire Co., 94-STA-2 (Sec'y
Aug. 3, 1994), the Secretary found that, based on the evidence
presented, a reasonable person under the circumstances
confronting the Complainant at the time he decided not to make
some deliveries would conclude that there was a bona fide danger
of an accident or injury, and that, therefore, he had a
reasonable apprehension of serious injury to himself or the
public under section 405(b). The evidence included the fact that
the Complainant's truck was almost empty, the temperature was
below freezing, the terrain to the delivery sites not completed
was elevated and the roadway curvy, and there was up to 12 inches
of shown in the area with road closures because of stuck tractor-
trailer rigs.
[STAA Digest V A 4 b iii]
REASONABLE APPREHENSION; COMPLAINANT'S CREDIBILITY; RESPONDENT'S FAILURE TO PRODUCE INSPECTION AND REPAIR RECORDS
In Murray v. Air Ride, Inc., ARB No. 00-045, ALJ No. 1999-STA-34 (ARB Dec. 29, 2000), the ARB agreed with the ALJ's weighing of the evidence concerning whether Complainant had a reasonable apprehension of serious injury to himself or the public because of the vehicle's unsafe condition. See 29 U.S.C.A. §31105(a)(1)(B)(ii). The ALJ took into account that Complainant was a very experienced truck driver who had driven the truck in question six days a week for about ten months; that his testimony that the truck was slowing down and speeding up sporadically was uncontradicted and believed by a company vice-president; that the Complainant's testimony that during the first part of the trip other trucks had to take evasive action as a result of the speed control problems was credible; the weather forecast for the night of the trip compounded Complainant's concerns; Complainant's case was supported by an expert witness who testified in detail about the dangers caused by a truck's tendency to slow down unexpectedly.
The ALJ found Respondent's response -- essentially an attempt to prove that the truck was safe -- to be unpersuasive. Respondent presented an e-mail from the driver who replaced Complainant; however, the ALJ and the ARB found that the e-mail was ambiguous and therefore entitled to no weight; both the ALJ and the ARB viewed with suspicion Respondent's failure to produce inspection and repair records for the vehicle. Moreover, the ARB agreed with the ALJ's observation that Complainant was not required to prove that the safety defect in fact existed; rather, Complainant's apprehension was supported by his experience with the truck that evening, especially when viewed in light of earlier recent experience with the truck, the weather forecast, and "common sense."
REASONABLE APPREHENSION REQUIREMENT UNDER STAA
[STAA Digest V A 4 b iii]
In Brown v. Wilson Trucking
Corp.,
94-STA-54 (ARB Oct. 25, 1996),
the issue was whether Complainant had a reasonable apprehension of serious
injury to himself or
the public when he refused to transport and pump out a drum of hazardous
material, after having
been exposed to the material on a previous occasion. The Board did not
question Complainant's
good faith belief that he could again suffer exposure to the hazardous
substance, but held that
"the employee's belief must be objectively reasonable, not simply
subjectively made in
good faith." Slip op. at 2 (citation omitted). The Board agreed with
the ALJ's
determination that Complainant did not have a reasonable apprehension of
serious injury --
Complainant had been fully trained, had made numerous other deliveries without
incident, and
had caused the prior spill by failing to follow proper procedure.
V A 4 b iii Illustrative case
In Zessin v. ASAP Express, Inc., 92-STA-33 (Sec'y
Jan. 19, 1993), the Secretary adopted the ALJ's finding that the
operation of respondent's truck, which had smoke covered windows
and warped and loose fitting mirrors resulting from a fire at one
of respondent's warehouses, violated the "when clause"
of the STAA whistleblower provision because of violation of
Federal regulations governing windshields and rear view mirrors.
The ALJ did not rule on the "because" clause. The
Secretary, however, made an alternative finding that a reasonable
person would have concluded that there was danger of an accident
or serious injury in driving the truck in the vision-impaired
condition, and that the complainant also was protected by the
STAA's "because clause." 49 U.S.C. § 2305(b).
Evidence she cited included:
A police officer's observation that for safety reasons,
he personally would not have driven the truck in its damaged
condition;
Although the respondent presented daylight photographs
of the outside of the truck to support its contention that the
windshield was clean, the officer looked through the windshield
at night toward the bright lights of a weigh station and found a
50% reduction in true vision. The Secretary concluded that the
officer's test more reasonably approximated the condition of the
windshield that the photographs.
The person who cleaned the truck the next day had to
use a heavy cleaner (whitewall tire cleaner because water and
bleach would not work).
The officer and the person who cleaned the truck were
independent witnesses, probably given greater credibility by the
ALJ than the respondent's witness-employee.
The mirrors were later replaced. The respondent's
witness, in direct contradiction of the complainant, testified
that the mirrors was operable. The Secretary concluded that if
they had been operable or sufficiently adjustable, they
presumably would not have been replaced.
V. A. 4. b. iii. Reasonable person standard;
illustrative cases
In Chapman v. T.O. Haas Tire Co., 94-STA-2 (Sec'y
Aug. 3, 1994), the Secretary found that, based on the evidence
presented, a reasonable person under the circumstances
confronting the Complainant at the time he decided not to make
some deliveries would conclude that there was a bona fide danger
of an accident or injury, and that, therefore, he had a
reasonable apprehension of serious injury to himself or the
public under section 405(b). The evidence included the fact that
the Complainant's truck was almost empty, the temperature was
below freezing, the terrain to the delivery sites not completed
was elevated and the roadway curvy, and there was up to 12 inches
of shown in the area with road closures because of stuck tractor-
trailer rigs.
Section 2305(b) of the STAA prohibits discriminatory treatment of
employees in either of two "work refusal"
circumstances. Absent unusual circumstances, the reason for a
work refusal should be communicated to an employer to gain
protection under the STAA. See generally Osborn v. Cavalier
Homes of Alabama, Inc., 89-STA-10 (Sec'y July 17, 1991), slip
op. at 3-4; Boone v. TFE, Inc., 90-STA-7 (Sec'y July 17,
1991), slip op. at 3-4, appeal docketed, No. 91-2659 (4th
Cir. Sept. 16, 1991).
V A 4 c 1 STAA requirement that complainant attempted
to communicate safety concerns
The employee has the burden under section 405(b), absent unusual
ircumstances, to show that he or she communicated or attempted to
communicate his or her safety concerns to his employer.
Boone v. TFE, Inc., 90-STA-7 (Sec'y July 17,
1991).
V A 4 c i Second work refusal circumstance STAA; must
be accompanied by proof complainant sought
correction of unsafe condition
The second work refusal circumstance of section 2305(b), the
"reasonable apprehension" circumstance, must be
accompanied by proof that the complainant sought, and was unable
to obtain, correction of the unsafe condition is order to invoke
protection under that provision. See generally Hadley v.
Southeast Cooperative Service Co., 86-STA-24 (Sec'y June 28,
1991), slip op. at 3-4.
Wilson v. Bolin Associates, Inc., 91-STA-4 (Sec'y
Dec. 30, 1991).
V A 4 c 1 Preponderance of the evidence standard
Where the preponderance of the evidence did not establish that
the Respondent was aware that the Complainant's refusal to drive
was in part due to pain and medication at the time he was
terminated, the Complainant failed to establish a prima facie
case of violation of either the "when" or
"because" clauses of the STAA whistleblower provision.
Palazzolo v. PST Vans, Inc., 92-STA-23 (Sec'y Mar.
10, 1993).
V A 4 c i "Because" clause; requirement of
seeking correction of unsafe condition
A requisite to establishing employer's violation of the
"because" clause of STAA § 2305(b) is that
complainant must have sought, and have failed to obtain from the
employer, correction of the unsafe condition. Nidy v.
Benton Enter., 90-STA-11 (Sec'y Nov. 19, 1991).
In Calhoun v. United Parcel Service, ARB No.
04-108, ALJ No. 2002-STA-31 (ARB Sept. 14, 2007), the ALJ concluded that the
Complainant�s pre-trip inspections that exceeded the Respondent�s methods were
protected under the STAA because they were reasonable.� The ARB disagreed,
holding that although internal complaints about
violations of commercial motor vehicle regulations may be oral, informal or
unofficial, they cannot be merely implied.� Rather, they must be communicated
to a manager or supervisor.�� The ARB wrote:� �Specific components of Calhoun�s
pre-trip inspection such as touching the lug nuts or the brake hoses, standing
alone, did not convey to UPS that Calhoun was aware of specific vehicle defects
on the dates relevant to this case or that UPS�s methods were in violation of
the STAA. The employee protection provision of the STAA requires an
employee to communicate his or her concerns by either refusing to drive or
initiating a complaint.�� USDOL/OALJ Reporter at 14 (footnote omitted).� The
Complainant�s added inspections standing alone, therefore, did not constitute
protected activity under the STAA.� In other words, the Complainant �did not
engage in protected activity simply by inspecting his vehicle in defiance of
UPS methods.�� USDOL/OALJ Reporter at 15.� Where, however, the Complainant
actually told the Respondent about actual defects, he did engage in protected
activity.
V A 4 c iii Adequacy of communication
of safety-related concern
-- STAA
Where complainant only expressed to respondent that he preferred
to make shorter runs due to his inability to continue making long
runs like he could as a younger man, and did not communicate any
safety-related concern, and did not engage in protected activity
under the STAA.
[STAA Digest V A 4 c iii]
PROTECTED ACTIVITY; CALL ASKING ABOUT POLICY IS NOT A COMPLAINT ABOUT THE POLICY
In Toland v. Keystone Freight Corp., ARB No. 03-151, ALJ No. 2003-STA-25 (ARB Jan. 28, 2005), the ARB affirmed the ALJ's finding that the Complainant failed to prove that he engaged in protected activity when he called the Respondent's dispatcher and asked about the company's policy concerning over hours driving. The ALJ found that this call was not protected because it was merely a "query," not a concern or complaint about violating the DOT driving hours regulations.
[STAA Whistleblower Digest V A 4 c iii] COMMUNICATION REQUIREMENT
In Stout v. Yellow Freight Systems, Inc., ARB No. 00 017, ALJ No. 1999 STA 42 (ARB Jan. 31, 2003), the ARB affirmed the ALJ's holding that where "Complainant only made general references to being ill and fatigued, rather than explicitly conveying the extent of his medical impairment and that his refusal to drive was because his ability to do so would result in a danger to himself or the public ... Complainant's statements were insufficient to satisfy the communication requirement of the STAA." Stout v. Yellow Freight Systems, Inc., 1999 STA 42 (ALJ Dec. 3, 1999).
REFUSAL TO DRIVE COMPLAINT; COMMUNICATION REQUIREMENT
[STAA Digest V A 4 c iii]
In LaRosa v. Barcelo Plant Growers,
Inc., 96-STA-10 (ARB Aug. 6, 1996), Complainant had been on duty
approaching fifteen hours on a difficult and unsuccessful first day as a solo
driver. He
telephoned the dispatcher, who told him to return to the facility.
Complainant dropped off his
truck and went home; he did not inform anyone that he would not take a run
scheduled to begin
only four hours later. The dispatcher had not told Complainant that it was
not necessary to report
to work for the next run. When it was discovered that Complainant had not
come to work, the
decision was made to fire him. Complainant contended that the dispatcher knew
the situation
and should not have expected Complainant to report.
The Board agreed with the ALJ's conclusion that Complainant did not establish
a
"refusal to drive" complaint under STAA, 49 U.S.C. §
31105(a)(1)(B),
because he failed to show that he informed Respondent of the safety basis for
his refusal to drive.
The Board wrote:
... [Complainant'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. [Complainant] wants us to assume that [the
dispatcher] 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 [Complainant] has the burden of
proof and we simply
cannot assume compliance with the requirement, where reasonally [sic]
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.
[Complainant] never
expressly refused to take the 3: 00 a.m. run, he just did not show
up.
The Board, however, remanded for the ALJ to consider the matter under the
"complaint" provision of the STAA, 49 U.S.C. § 31105(a)(1)(A).
V A 4 c iii STAA - prima facie case not established where
focus of complaints not about safety; safety
complaints not communicated adequately to
respondent
The complainant could not prevail on his STAA complaint where the
record established that his complaint to respondent centered on
extra job assignments rather than on perceived safety violations.
Further, because complainant failed to communicate safety defects
as a basis for his refusal to work, Respondent was not aware of
any vehicle defects and thus was not motivated by this
consideration in discharging complainant. Finally,
complainant'scommunication that "he felt like [expletive
deleted]" and his explanation that he was frustrated and
starting to get a headache, did not invoke STAA protection based
on ill health. The Secretary stated that this record did not
permit findings required to invoke STAA section 2305(b): that a
reasonable person, under the circumstances then confronting
complainant, would conclude that there was a bona fide danger of
an accident, injury, or serious impairment of health resulting
from the unsafe condition, or that the complainant's ability or
alertness was so impaired as to make vehicle operation unsafe.
See 49 C.F.R. § 392.3. Mace v. Ona Delivery
Systems, Inc., 91-STA-10 (Sec'y Jan. 27, 1992).
V A 4 c iii "Reasonable apprehension" ground
for refusing work; sufficient articulation -
STAA
The complainant articulated his complaints sufficiently to meet
the communication requirement of the "reasonable
apprehension" ground for refusing work, see LeBlanc v.
Fogelman Truck Lines, Inc., 89-STA-8 (Sec'y Dec. 20, 1989),
slip op. at 12-17, aff'd sub nom., Fogelman Truck Lines, Inc.
v. Martin, No. 90-4114 (5th Cir. Apr. 17, 1991), where the
complainant detailed the truck defects in his post-trip vehicle
inspection report, submitted consistent with the respondent's
policy.
Reed v. National Minerals Corp., 91-STA-34 (Sec'y
July 24, 1992).
V A 4 c iii Sufficiency of communication of reason for
work refusal in STAA case
The fact that the complainant stated that she was "too
stressed out" to drive during a conversation with
Respondent's assistant manager did not establish that she had
conveyed to the assistant manager that her refusal to drive was
because she was unable to do so safely or without danger of
accident. The statement came at the conclusion of an angry
conversation over an ongoing dispute concerning whether the
complainant had to return her bus to the terminal at the end of
shift. Under the circumstances, the statement appeared to be an
angry backlash to losing another argument concerning this bone of
contention.
Smith v. Specialized Transportation Services, 91-
STA-22 (Sec'y Apr. 20, 1992).
A requirement in cases arising under the "because
clause" of the STAA, 49 U.S.C. § 2305(b), is that an
employee seek correction of the unsafe condition from his
employer before refusing work. In Zessin v. ASAP Express,
Inc., 92-STA-33 (Sec'y Jan. 19, 1993), the complainant's
supervisor walked away when the complainant raised the issue of
defects in the mirrors and windshield of his assigned truck. The
complainant also tried himself to correct the problems, but was
not successful. Furthermore, once the complainant arrived at the
delivery site, and was due to return immediately because of the
nature of the respondent's express package delivery business, it
was reasonable for him to shift his focus from correction of
defects to substitution of a safe vehicle for the return trip.
When seeking correction is not feasible, the requirement does not
apply. Green v. Creech Brothers Trucking, 92-STA-4 (Sec'y
Dec. 9, 1992), slip op. at 13 n.7.
RESPONDENT'S AWARENESS; COMMUNICATION REQUIREMENT; CLARITY OF
COMMUNICATION
[STAA Digest V A 4 c iv]
Where the supervisor who made the decision to terminate the
Complainant's employment had a reasonable belief that the
Complainant could drive safely because he was not advised that
the Complainant had made a trip that was not in the itinerary,
nor was he advised that the Complainant was too fatigued to drive
safely, the supervisor did not know, and could not reasonably
have known, that the Complainant's refusal to take dispatch was
protected activity. The supervisor had only been told that the
Complainant "felt that he was over the hours of DOT."
Vogt v. Atlas Tours, Ltd., 94-STA-1 (ALJ Sept. 21,
1994), adopted, (ARB June 24, 1996).
The communication requirement of STAA section 2305(b) permits a
timely correction of the hazard, thus promoting safety, and
reducing bad faith work refusals. LeBlanc v. Fogelman Truck
Lines, Inc., 89-STA-8 (Sec'y Dec. 20, 1989), slip op. at 12-
13. Thus, were the record indicated that Respondent would have
substituted another vehicle or arranged for repairs had
complainant mentioned vehicle defects in his communication
refusing to work the remainder of the shift, a prima facie case
of discrimination was not supported. Mace v. Ona Delivery
Systems, Inc., 91-STA-10 (Sec'y Jan. 27, 1992).
PROTECTED ACTIVITY; WORK REFUSAL; OPPORTUNITY TO CORRECT
UNSAFE SITUATION
[STAA Digest V A 4 c v]
Where the Complainant was apparently basing an argument that
his refusal to drive was based on an unsafe situation caused
by the combination of winter weather conditions and the
sloshing effect of a liquid loaded only to one-third full,
the work refusal was not protected under the STAA because
the Complainant never attempted to have the Respondent alter
the load. See 49 U.S.C. § 31105(a)(2) (employee
must seek correction of unsafe condition). Cleary v.
Flint Ink, Corp., 94-STA-52 (Sec'y Mar. 4, 1996).
V A 4 c v Communication requirement of STAA 2305(b) permits
timely correction of hazard
In order to qualify for protection under section 2305(b), the
employee must have sought from his employer, and have been unable
to obtain, correction of the unsafe condition. This limitation,
however, only applies to the clause that prohibits discrimination
because of the employee's reasonable apprehension
of serious injury to himself or the public due to the unsafe
condition of such equipment. The provision does not apply to the
clause that prohibits discrimination for refusal to drive
when such operation constitutes a violation of any federal
rule or regulation.
The Secretary noted, however, that this is a qualified
requirement subject to exception where unusual circumstances,
such as futility exist. To hold otherwise would be to defeat
protection under section 2305(b) in cases where an employer
effectively discourages communication of safety concerns through
its inaccessibility. For example, the Complainant in this case
had made several attempts to communicate to the employer the
necessity for repair and was unsuccessful through no fault of his
own. LeBlanc v. Fogleman Truck Lines, Inc., 89-
STA-8 (Sec'y Dec. 20, 1989).
V A 4 c v Respondent did not refuse to correct
condition
Where the evidence credited by the ALJ indicated that Complainant
was offered another truck after attempts to repair the truck he
was originally assigned were unsuccessful, the essential element
of an STAA whistleblower complaint of refusal to correct an
unsafe condition was not present, and Complainant failed to
demonstrate that Respondent violated the Act. Bates v.
Kasbar, Inc., 85-STA-11 (ALJ Mar. 7, 1986),
adopted (Sec'y May 29, 1986).
Where it was undisputed that it was reasonable for complainant to
believe that his assigned vehicle was unsafe, and that
complainant sought repair of the vehicle, the Secretary's finding
that complainant was unable to obtain correction of the unsafe
condition because he had been removed from the premises by a
supervisor was affirmed where there was substantial evidence that
complainant was removed because he had raised the issue of
safety; that respondent's reason for the removal -- an
altercation in a dispute over complainant's being in the wrong
break room -- was disproportionate to the suggested infraction;
and a co-driver was permitted to watch the repair while
complainant was not. Lewis Grocer Co. v. Holloway,
874 F.2d 1008 (5th Cir. 1989).
REFUSAL TO DRIVE; CORRECTION OF SAFETY ISSUE; CONSTRUCTIVE
DISCHARGE [STAA Digest V A 4 c 6]
In Shoup v. Kloepfer Concrete Co., 95-STA-33
(Sec'y Jan. 11, 1996), the Complainant refused to drive an
overweight mixer, and the Yard Supervisor wanted to discharge the
Complainant because of this protected activity. The Yard
Supervisor, however, did not have the authority to fire the
Complainant, and when he sought the authority from the Manager,
the Manager called the Vice President. Ultimately, the
Complainant was offered an alternative train mixer, which could
take the load legally. The Complainant walked out, stating that
he had been fired. The Complainant had previously made it known
that it considered train mixers to be unsafe.
The Secretary found that the Complainant quit voluntarily,
that the offer of a train mixer was a reasonable solution, and
that there had not been a constructive discharge. There was no
evidence that other drivers or employers believed that train
mixers, used widely in the industry, were inherently unsafe.
[STAA Digest V A 4 c vi] PROTECTED ACTIVITY; REFUSAL TO DRIVE; RESPONDENT'S INSPECTION OF VEHICLE AND EXPLANATION
TO COMPLAINANT OF WHY IT IS SAFE TO DRIVE
In Harris v. C & N Trucking, ARB No. 04-175, ALJ No. 2004-STA-37 (ARB Jan. 31, 2007),
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HTM
the ARB affirmed the ALJ's finding that the Complainant did not prove that he engaged in protected activity under the
STAA where, although the Complainant believed that his assigned vehicle was unsafe to drive, the Respondent's owner
credibly testified that he examined the truck and explained to the Complainant that there was no reason to remove it from service.
[Editor's note: The ARB decision does not elaborate on why the owner's testimony prevented a finding that the
Complainant did not engage in protected activity when he refused to drive. The ALJ's recommended decision, however,
contains a discussion of caselaw holding that a complainant's refusal to drive may lose protected status if the respondent
investigated the hazard, determined the vehicle was safe, and informed the employee of that determination.
Harris v. C & N Trucking, 2004-STA-37 (ALJ Sept. 9, 2004), slip op. at 8-9.]
V A 4 c vi Condition corrected -- no violation
of because clause
In Stiles v. J.B. Hunt Transportation, Inc., 92-
STA-34 (Sec'y Sept. 24, 1993), Complainant twice sought
correction of defective brakes and bald tires, and Respondent
ultimately made the necessary repairs while Complainant was
assigned to a different truck. The Secretary held that
Complainant did not establish a prima facie case of a violation
of the "because" clause of the STAA whistleblower
provision since he succeeded in getting the defects
corrected.
[STAA Digest V A 5]
PROTECTED ACTIVITY; COMPLAINANT'S MOTIVE FOR MAKING THE COMPLAINT IS NOT MATERIAL TO THE ISSUE OF WHETHER THE COMPLAINANT HAD FORMED A REASONABLE BELIEF THAT A SAFETY VIOLATION HAD OCCURRED
In Guay v. Burford's Tree Surgeon's, Inc., ARB No. 06-131, ALJ No. 2005-STA-45 (ARB June 30, 2008), the Complainant had reported drug use by coworkers to a major customer. The ALJ concluded that this was not protected activity because it was done in revenge for disciplinary action. The ARB found that the ALJ erred by taking into account the Complainant's motivation when assessing whether the complaint was based on a reasonable belief that a safety violation had occurred. The ARB reviewed the record and found that the Complainant indeed had a reasonable belief that motor vehicle safety rules were being violated because of drug use by coworkers; the Complainant's motives for making the complaint were not material.
[Editor's note: Because the complaint was dismissed on other grounds, the ALJ did not reach the issue of whether it is protected activity under the STAA to complain to a third party. Because the Respondent had not objected to this approach on appeal, the ARB assumed for purposes of deciding the appeal that the entity to which the Complainant complained was appropriate.]
The fact that a complainant may have had other non-safety related
reasons for refusing to an assigned run with a particular co-
driver (e.g., getting paid the same amount but doing more of the
driving) does not diminish the protection afforded to his safety-
related reason for refusing the assignment. Taylor v.
Broadhead, 91-STA-14 (Sec'y Feb. 11, 1992). The
Secretary adopted the ALJ's finding that the complainant had made
out a prima facie case of retaliatory discharge where the record
supported the complainant's assertion that he had complained to
his supervisor that his assigned co-driver was slow and tended to
take naps or fall asleep at the wheel, with the result that the
complainant would have had to drive in excess of the time
permitted under federal regulations in order to stay on schedule.
See Taylor v. Broadhead, 91-STA-14 (ALJ Oct. 24,
1991).
[STAA Digest V A 5]
PROTECTED ACTIVITY; REASON FOR WORK REFUSAL MUST BE SAFETY
RELATED
In Zurenda v. J&K Plumbing & Heating
Co. Inc., 97-STA-16 (ARB June 12, 1998), the ALJ found that certain safety
defects were present in a truck Complainant refused to drive, and therefore Complainant engaged
in protected activity. The ARB held that simply because Complainant refused to drive a truck
that had safety defects did not establish protected activity. Where, as the ALJ found, the work
refusal was not based on a concern for safety, but solely for non-safety related reasons, a
complainant does not engage in protected activity.
[STAA DIGEST V A 5]
PROTECTED ACTIVITY; COMPLAINANT'S MOTIVE IRRELEVANT
A complainant's motivation in making safety complaints has no bearing on
whether those
complaints are protected activity. Nichols v. Gordon Trucking,
Inc., 97-STA-2
(ARB July 17, 1997).
PROTECTED ACTIVITY; COVERAGE OF CONCERNS ABOUT CRIMINAL
ACTIVITY OF THIRD PARTIES VERSUS CONVENTIONAL MOTOR VEHICLE
SAFETY; ARMORED VEHICLE; NO SPECIFIC FEDERAL VIOLATION NECESSARY
FOR REASONABLE APPREHENSION/WORK REFUSAL CASE [STAA Digest V A 5]
In Caimano v. Brink's, Incorporated, 95-STA-4
(Sec'y Jan. 26, 1996), a case involving a armored truck, the
Secretary stated that the ALJ properly questioned whether the
whistleblower provision of the STAA covers the raising of
security concerns related solely to the threat of criminal
activity posed by third parties. The Secretary confined his
analysis to concerns related to conventional motor vehicle
safety, although he noted that some of the concerns raised by the
Complainant were pertinent to both the threat of criminal
interference and to commercial vehicle safety covered by the
STAA. Specifically, the Secretary found that the Complainant's
concerns about malfunctioning electric door locks (which were
merely back-ups to mechanical locks) and lack of interior
gunports were not related to conventional motor vehicle safety.
Concerns about exhaust fumes in the cargo compartment and radio
communication (needed for safe and effective direction to the
driver), however, were covered.
The Secretary noted that it is not necessary for a
complainant in an STAA whistleblower case to establish a specific
Federal violation under the reasonable apprehension/work refusal
clause. The Secretary stated that "[s]uch [a] requirement
would vitiate the purpose of the statute in circumstances such as
this, where the commercial motor vehicle is being operated in an
atypical manner that is not directly addressed by a Federal
regulation." Slip op. at 13 n.10.
V A 5 Consideration of complainant's motives
In Foster v. Yellow Freight Systems, Inc., 84-STA-
10 (Sec'y Sept. 19, 1984), the Secretary adopted the ALJ's
conclusions and recommendation that the complaint be dismissed.
The ALJ found, considering the credibility of the witnesses, that
Complainant did not have a reasonable apprehension of serious
injury due to the condition of his assigned truck, where the
credible evidence indicated that there had been an informal
arrangement between the union and Respondent that regular drivers
like Complainant would not be required to drive this truck, and
the ALJ inferred that the Complainant "felt imposed upon in
being required to drive" it. ALJ Slip op. at 7. The ALJ
also found that the tractor was safe and its condition would not
have caused a reasonable apprehension of serious injury.
V A 5 STAA - prima facie case not established where
focus of complaints not about safety; safety
complaints not communicated adequately to
respondent
The complainant could not prevail on his STAA complaint where the
record established that his complaint to respondent centered on
extra job assignments rather than on perceived safety violations.
Further, because complainant failed to communicate safety defects
as a basis for his refusal to work, respondent was not aware of
any vehicle defects and thus was not motivated by this
consideration in discharging complainant. Finally, complainant's
communication that "he felt like [expletive deleted]"
and his explanation that he was frustrated and starting to get a
headache, did not invoke STAA protection based on ill health.
The Secretary stated that this record did not permit findings
required to invoke STAA section 2305(b): that a reasonable
person, under the circumstances then confronting complainant,
would conclude that there was a bona fide danger of an accident,
injury, or serious impairment of health resulting from the unsafe
condition, or that the complainant's ability or alertness was so
impaired as to make vehicle operation unsafe. See 49
C.F.R. § 392.3. Mace v. Ona Delivery Systems,
Inc., 91-STA-10 (Sec'y Jan. 27, 1992).
V A 5 Complainant's fear of receiving a fine is not
enough to constitute protected activity
In Kanavel v. U-Haul Company of Northwestern Ohio,
88-STA-9 (ALJ June 30, 1988), Respondent asked Complainant to
pick up a tanker truck filled with used motor oil. After making
telephone calls to the Michigan State Police, Ohio State Police,
the Environmental Protection Agency, and another environmental
protection agency to determined what was necessary to transport
the oil and was told different things by different people,
including that he would need a manifest and a chauffeur's
license, and that the truck would need EPA stickers. Complainant
refused to drive the truck because he did not have a chauffeur's
license.
The ALJ concluded that Complainant's concern was the possibility
of receiving a fine. He expressed no apprehension for his or the
public's safety. Consequently, his refusal to drive the tanker
truck was not protected activity.
The Secretary adopted the ALJ's finding. (Sec'y Oct.
24,1988).
In Palmer v. Western Truck Manpower, 85-STA-6
(Sec'y Jan. 16, 1987), Complainant requested to have a load
repacked because he had concluded that it was unsafe, but the
request was refused. When he refused to drive the load as
packed, the foreman had the service manager inspect the load, who
brought in the superintendent for the same purpose. Each of
these officials determined that the load was safe (except some
excess dunnage was removed), and Complainant was told he had
fifteen minutes to start delivery. Complainant drove the truck
as loaded because he feared being fired unless he complied. Once
on the road, Complainant was signalled by another driver that he
had a problem, and upon discovering that the load had come apart,
he returned to the yard. [Editor's note: there was some dispute
as to the facts, but this is a summary of the version the ALJ
credited]
The Secretary rejected Respondent's argument that Complainant did
not engage in a protected activity because he did not refuse to
drive the truck since he actually drove it out of the yard. The
Secretary held that his initial refusal was not made less of a
protected activity because he ultimately did drive for fear of
being fired. Further, the return to the yard and refusal to
complete delivery in and of itself was a refusal to operate a
vehicle within the meaning section 2305(b).
[STAA Digest V A 6]
PROTECTED ACTIVITY; WORK REFUSAL VERSUS COMPLAINT
In Zurenda v. J&K Plumbing & Heating
Co. Inc., 97-STA-16 (ARB June 12, 1998), the ALJ erred in concluding that
certain incidents where Complainant alleged that he had complained about the condition of the
trucks he was to drive on those dates was a "work refusal" analyzed pursuant to
section 31105(a)(1)(B). The ARB concluded that because Complainant did actually drive those
trucks, the complaint was more properly analyzed under the "complaint" provision of
section 31105(a)(1)(A).
