September 21, 2008
DOL Home > OALJ Home > ARB Decisions, September 2007
USDOL/OALJ Reporter Decisions of the Administrative Review Board
September 2007
Ambrose v. U.S. Foodservice, Inc., ARB No. 06-096, ALJ No. 2005-SOX-105 (ARB Sept. 28, 2007)
(Final Decision and Order Approving Settlement and Dismissing Complaint With Prejudice)
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Summary:
Approval of settlement agreement.
Balazs v. Dimare Fresh, Inc., ARB No. 06-095, ALJ No. 2006-STA-2 (ARB Sept. 28, 2007)
(Final Decision and Order)
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Summary:
ARB affirms ALJ’s finding that the Respondent proved that the Complainant was
terminated for a legitimate, non-discriminatory reason.
Baughman v. J.P. Donmoyer, Inc., ARB No. 05-105, ALJ No. 2005-STA-5 (ARB Sept. 28, 2007)
(Final Decision and Order)
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[Note: The ARB reissued this decision on Oct. 31, 2007, making slight
changes to the penultimate paragraph. SeeBaughman v. J.P. Donmoyer, Inc., ARB No. 05-105, ALJ No. 2005-STA-5 (ARB Oct. 31, 2007)]
Summary:
[STAA Digest IV A 2 d] EMPLOYER’S KNOWLEDGE OF PROTECTED ACTIVITY AT
TIME OF DECISION TO TERMINATE EMPLOYMENT
In Baughman v. J.P. Donmoyer, Inc.,
ARB No. 05-105, ALJ No. 2005-STA-5 (ARB Sept. 28, 2007), the ARB affirmed the
ALJ’s holding that the Complainant did not prove by a preponderance of the
evidence that the officials who decided to terminate his employment knew about
his protected activity.
Friday v. Northwest Airlines, Inc., ARB No. 04-124, ALJ Nos. 2004-AIR-16 and 17 (ARB Sept. 28, 2007)
(Final Decision and Order of Dismissal)
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Summary:
Complainant failed to show that his AIR21 claims were exempt from
the Respondent’s bankruptcy discharge.
Muzyk v. Carlsward Transportation, ARB No. 06-149, ALJ No. 2005-STA-60 (ARB Sept. 28, 2007)
(Final Decision and Order)
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Summary:
[STAA Digest VI B 4] ADVERSE ACTION; DECISION NOT TO REHIRE COMPLAINANT WHO WAS IN LAY-OFF
STATUS
In Muzyk v. Carlsward Transportation, ARB No. 06-149, ALJ No. 2005-STA-60 (ARB Sept. 28, 2007),
the Complainant, who was in lay-off status, was called back to work for one day
to shuttle a bus and some passengers, and then returned to lay-off status. On
the day of the temporary service, the Complainant felt overcome by exhaust
fumes during the trip. The testimony conflicted about whether the Complainant
brought the exhaust fume issue to the attention of the Respondent on that date,
or days later when the Complainant inquired about workers’ compensation. The
Respondent conceded that it had intended to rehire the Complainant when the
busy season started up in the Orlando area. The ARB agreed with the ALJ that
the Complainant was in an employment relationship with the Respondent, and that
the Respondent engaged in adverse employment action when it decided not to
rehire the Complainant, though initially intending to do so.
[STAA Digest IV D 2] DUAL MOTIVE; COMPLAINANT’S SUSPICIOUS AND
DISHONEST ACTIVITY RAISED FOR THE RESPONDENT SECURITY CONCERNS AND LOSS OF
CONFIDENCE IN THE COMPLAINANT; ALJ NEED NOT DETERMINE WHETHER ADVERSE ACTION WAS
“REASONABLE” AND “JUSTIFIED” BUT ONLY WHETHER IT WAS “LEGITIMATE” AND
NON-DISCRIMINATORY”
In Muzyk v. Carlsward Transportation, ARB No. 06-149, ALJ No. 2005-STA-60 (ARB Sept. 28, 2007),
the ARB found that substantial evidence supported the ALJ’s finding that
although discrimination “played a role” in the decision not to rehire the
Complainant, the Respondent would have refused to rehire the Complainant absent
any of his safety-related complaints where the Complainant had engaged in
suspicious and dishonest activity which raised security and loss of confidence
concerns for the Respondent. Another bus driver had informed the Respondent
that the Complainant was out to get the Respondent. In addition, the Complainant was
deceptive when the Respondent confronted him over his reason for hanging around
the Respondent’s busses at a time when he had no business at the depot. The
Complainant admitted that he had been playing a “cat-and-mouse” game because he
did not want to disclose that he was taking pictures for an upcoming meeting
with an attorney. In a footnote, the ARB noted that the ALJ had observed
that the Respondent’s action was “reasonable” and “justified” in addition to
being legitimate and non-discriminatory. The ARB noted that “the purpose of
the STAA employee protection provision is specific to retaliation because of
protected activity,” and cited decisions to the effect that the STAA was not
intended as a vehicle for judicial second-guessing of employment decisions.
Nixon v. Stewart & Stevenson Services, Inc., ARB No. 05-066, ALJ No. 2005-SOX-1 (ARB Sept. 28, 2007)
(Final Decision and Order)
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Summary:
NEW EVIDENCE SUPPORTING ASSERTION OF PROTECTED
ACTIVITY; FACT THAT STATE COMMISSION LATER ASSESSED A PENALTY AS THE
COMPLAINANT FEARED, WAS NOT MATERIAL; SUCH AN ASSESSMENT DOES NOT RETROACTIVELY
VALIDATE THE COMPLAINANT’S ACTIONS AS PROTECTED UNDER THE SOX
In Nixon v. Stewart & Stevenson
Services, Inc., ARB No. 05-066, ALJ No. 2005-SOX-1 (ARB Sept. 28, 2007),
the Complainant was the environmental manager for a federal defense
contractor. He asserted that he engaged in protected activity when he reported
information to officers that showed violations of environmental laws, which he
reasonably believed would result in legal proceedings and financial penalties,
which, in turn, would invoke reporting requirements mandated by the SEC. On
appeal to the ARB, the Complainant sought to have the ARB consider new evidence
in the form of an excerpt from a Texas commission showing that a penalty
against the Respondent was assessed, thus proving that legal proceedings
occurred. Before addressing the admissibility of the new evidence, the ARB had
found that the Complainant had not adequately briefed on appeal the ALJ’s
finding that there was no evidence of pending environmental litigation or a
known environmental proceeding contemplated by government officials that would
have triggered the Respondent’s duty to disclose under the SEC rule. Thus, the
ARB found any argument on this issue waived. Rather, the ARB found that the
only argument on appeal concerned whether the Respondent engaged in mail
fraud. The Board found that there was no evidence that the Complainant
communicated the allegation of mail fraud prior to the hearing before the
ALJ. Thus, the ARB, observing that it had found no protected activity, declined
to consider the new evidence, finding that it was not material because “[t]he fact
that what Nixon anticipated would happen did happen, namely that the Texas
Commission did assess a penalty against the Respondent for environmental
violations, does not retroactively make any activity Nixon engaged in prior to
his termination activity protected under the SOX.”
BRIEFING OF ISSUES BEFORE THE ARB; PRO SE
STATUS OF COMPLAINANT DOES NOT NEGATE RESPONSIBILITY TO PROVIDE LEGAL ARGUMENT
WITH SUPPORTING AUTHORITY; MERE GENERAL ASSERTION OF ERROR BY ALJ IS A WAIVER
OF THE ISSUE ON APPEAL
In Nixon v. Stewart & Stevenson
Services, Inc., ARB No. 05-066, ALJ No. 2005-SOX-1 (ARB Sept. 28, 2007),
the Complainant was the environmental manager for a federal defense
contractor. He asserted that he engaged in protected activity when he reported
information to officers that showed violations of environmental laws, which he
reasonably believed would result in legal proceedings and financial penalties,
which, in turn, would invoke reporting requirements mandated by the SEC. On
appeal, the Complainant only made a general assertion that the ALJ’s finding in
this respect was in error, and did not make any supporting argument. Citing
authority to effect that even pro se litigants must provide some legal argument
with supporting authority, the ARB found the issue waived on appeal.
PROTECTED ACTIVITY; MAIL FRAUD; ISSUE IS NOT
WHETHER RESPONDENT ACTUALLY VIOLATED MAIL FRAUD LAW, BUT WHETHER COMPLAINANT
REASONABLY BELIEVED THAT THERE WAS A VIOLATION AND CONVEYED THAT BELIEF TO THE
RESPONDENT PRIOR TO THE ADVERSE EMPLOYMENT ACTION
In Nixon v. Stewart & Stevenson
Services, Inc., ARB No. 05-066, ALJ No. 2005-SOX-1 (ARB Sept. 28, 2007),
the Complainant was the environmental manager for a federal defense contractor.
Among other allegations, the Complainant alleged that he engaged in protected
activity because the Respondent engaged in mail fraud under 18 U.S.C.A. § 1341
when it sent letters to a state commission falsely asserting that it was immune
from environmental penalties. The ALJ had granted summary decision in favor of
the Respondent because the Complainant failed to show that the letters were
part of a “scheme or artifice to defraud, or for obtaining money or property,”
as required by 18 U.S.C.A. § 1341, and that there was no evidence that the
Complainant, prior to his termination, considered the Respondent’s conduct to
constitute mail fraud. On appeal, the ARB indicated that the ALJ had partly
mischaracterized the issue because under the SOX whistleblower provision, an
employee is not required to provide information about an actual violation of
Section 1341, but only to show that he reasonably believed that there was a
violation and conveyed that belief to his employer. The ARB, however, affirmed
the ALJ’s grant of summary decision because he had correctly found that there
was no evidence that the Complainant actually communicated his Section 1341
concerns to the Respondent prior to his termination. Rather, the first mention
of the mail fraud statute was in response to a conference call during which the
ALJ had asked if there was any other basis for the Complainant’s complaint
beyond an SEC rule violation alleged in the complaint.
REMOVAL TO FEDERAL COURT; COMPLAINANT IS NOT
REQUIRED TO WITHDRAW DOL COMPLAINT PRIOR TO FILING IN FEDERAL DISTRICT COURT
A complainant is not required to withdraw his SOX
complaint before DOL prior to filing a de novo action in federal district court where
DOL has not made a final decision in his case within 180 days of the filing of
the complainant with OSHA. Nixon v. Stewart & Stevenson Services,
Inc., ARB No. 05-066, ALJ No. 2005-SOX-1 (ARB Sept. 28, 2007).
Reeves v. Old Dominion Freight Line, ARB No. 05-128, ALJ No. 2005-STA-34 (ARB Sept. 28, 2007)
(Final Decision and Order)
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Summary:
[STAA Digest II B 2 d ii] TIMELINESS OF COMPLAINT; EQUITABLE TOLLING;
GRIEVANCE PROCEDURE
In Reeves v. Old Dominion Freight Line,
ARB No. 05-128, ALJ No. 2005-STA-34 (ARB Sept. 28, 2007), the Complainant
appealed his termination through the Respondent’s internal appeal process. His
later STAA whistleblower complaint was filed 248 days after his termination.
The Complainant argued that the filing period for his STAA complaint did not
begin to run until the date upon which the committee responsible for deciding
his internal appeal rendered a decision. The ARB rejected this argument,
citing the regulation at 29 C.F.R. § 1978.102(d)(3), and stating that “[t]he
plain language of the STAA precludes tolling of the limitations period during
the pendency of Reeves’s internal appeal of his termination.” Slip op. at 4
(footnote omitted).
[STAA Digest II B 2 d ii] TIMELINESS OF COMPLAINT; EQUITABLE TOLLING;
INCAPACITY MUST PREVENT, NOT MERELY HAMPER MANAGEMENT OF ONE'S AFFAIRS
In Reeves v. Old Dominion Freight Line,
ARB No. 05-128, ALJ No. 2005-STA-34 (ARB Sept. 28, 2007), the Complainant did
not file his complaint with 180 days of the date of his termination. On appeal
he contended that he was entitled to equitable tolling because he had been
incapacitated due to his treatment for Hepatitis C. The ARB found that the
Complainant had failed to establish that his medical condition was so severe
that it prevented him from pursuing his STAA complaint in a timely manner.
Rather, the Complainant had only contended that it had been “difficult” for him
to stay on top of his legal affairs. Moreover, the ARB noted that he had been
able to pursue an internal appeal process during the STAA limitations period.
Riedell v. Verizon Communications, ARB No. 06-144, ALJ No. 2005-SOX-77 (ARB Sept. 28, 2007)
(Final Order of Dismissal)
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Summary:
DISMISSAL FOR FAILURE TO PROSECUTE ARB APPEAL;
ALJ’S DECISION BECOMES THE DOL’S FINAL ORDER
In Riedell v. Verizon Communications, ARB No. 06-144, ALJ No.
2005-SOX-77 (ARB Sept. 28, 2007), the ARB ordered the Complainant to show cause
why his complaint should not be dismissed for failure to prosecute. The
Complainant notified that he did not challenge such a dismissal. The ARB
construed the response as a withdrawal of objections to the ALJ’s decision
pursuant to 29 C.F.R. § 1980.111(c) (2007). Accordingly, the Board dismissed
the appeal, and noted that the ALJ’s decision had become DOL’s final order in
the case.
Sassman v. United Airlines, ARB No. 05-077, ALJ Nos. 2005-AIR-4 (ARB Sept. 28, 2007)
(Final Decision and Order)
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BANKRUPTCY; ACTIONS OF RESPONDENT OCCURRING
AFTER FILING OF BANKRUPTCY
In Sassman v. United
Airlines, ARB No. 05-077, ALJ Nos. 2005-AIR-4 (ARB Sept. 28, 2007), the
Complainant had financed a loan for a van through an employee credit union.
The Complainant filed an AIR21 whistleblower complaint after his discharge,
which was dismissed because it had been discharged as part of the Respondent
airline’s bankruptcy reorganization. While that complaint was pending, the
credit union repossessed the van, sold it at auction, and sought to collect the
balance of the loan from the Complainant. The Complainant filed a new
whistleblower complaint alleging that the Respondent airline caused the credit
union to treat him more harshly upon default than other credit union members
because of his protected activity. The
ALJ dismissed the complaint. While on appeal to the ARB, the airline informed
the ARB that the Bankruptcy Court had entered a confirmation order discharging
the airline from any claims of any nature that arose before the confirmation
date. The Complainant argued that the current case arose after the Respondent
filed for bankruptcy and therefore was not discharged; he cited no authority
for this argument. The ARB held that the AIR21 claim against the airline, “whether
characterized as a pre-petition claim or as a post-petition claim, was
discharged in bankruptcy because it arose before the Confirmation Order was
entered ….”
TIMELINESS OF COMPLAINT; COLLECTION LETTER
FOUND NOT TO BE A SEPARATE, ACTIONABLE ADVERSE ACTION; CONTINUING VIOLATION
DOCTRINE DOES NOT APPLY TO AIR21 WHISTLEBLOWER CASES
In Sassman v. United Airlines, ARB
No. 05-077, ALJ Nos. 2005-AIR-4 (ARB Sept. 28, 2007), the Complainant had
financed a loan for a van through an employee credit union. The Complainant
filed an AIR21 whistleblower complaint after his discharge, which was dismissed
because it had been discharged as part of the Respondent airline’s bankruptcy
reorganization. While that complaint was pending, the credit union repossessed
the van, sold it at auction, and sought to collect the balance of the loan from
the Complainant. After receiving a collection letter from the credit union
several years after the repossession, the Complainant filed a new whistleblower
complaint alleging that the Respondent airline caused the credit union to treat
him more harshly upon default than other credit union members because of his
protected activity. Assuming for purposes of deciding the appeal that the
credit union was a properly named respondent under AIR21 (the airline having
been discharged in bankruptcy), the ARB found that the complaint should have
been filed within 90 days of when the Complainant was informed that the van had
been repossessed and that he would be liable for any deficiency on the loan
balance after a sale at auction. The collection letter several years later was
a consequence of the repossession, and not a separate, actionable adverse
action. The ARB rejected the Complainant’s argument that his complaint was
timely under the “continuing violation” doctrine, because he continued to
engage in protected activity during the period of the repossession and
collection efforts. The ARB found that continuing violation doctrine has
nothing to do with when the protected activity took place, and that in any event,
continuing violation doctrine does not apply to AIR21 whistleblower cases.
V-Tech Services, Inc., ARB No. 05-100 (ARB Sept. 28, 2007)
(Final Decision and Order)
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Summary:
SERVICE CONTRACT ACT SUBSTANTIAL VARIANCE
HEARING; EXTRAORDINARY CIRCUMSTANCES JUSTIFYING WAIVER OF TIME LIMITS FOR
REQUESTING HEARING
In V-Tech Services, Inc., ARB No.
05-100 (ARB Sept. 28, 2007), the ARB affirmed the Administrator’s determination
that “extraordinary circumstances” did not exist that would justify waiving the
timeliness requirement for a successor service contractor to request a
substantial variance hearing under the SCA regulation at 29 C.F.R. §
4.10(b)(3)(ii). The successor contractor relied on E.O. 13204 – which revoked
E.O. 12933 which had required a successor contractor to offer a right of first
refusal of employment to its predecessor’s employees – to draw the conclusion
that it did not need to pay its employees at the CBA-negotiated rate paid by
its predecessor. Section 4(c) of the SCA, however, operates to require payment
of the CBA rate regardless of the revocation of E.O. 12933. The successor
contractor noted that it was a new federal contractor, and was not aware of the
applicability of the CBA wage rates until informed of it by the contracting
agency after it had already begun performing the contract. It observed that
the bid solicitation did not indicate that the CBA rate had to be paid. The
ARB rejected the successor contractor’s contentions, observing that Section
4(c) expressly requires payment of the wage rates contained in a predecessor’s
CBA irrespective of whether the successor’s employees were or were not employed
by the predecessor contractor. The ARB found that the successor contractor’s
miscalculation of the required wage rate was not reasonable, and that the
Administrator reasonably refused to waive the time limits for requesting a
hearing.
Bettner v. Crete Carrier Corp., ARB No. 07-093, ALJ No. 2006-STA-33 (ARB Sept. 27, 2007)
(Final Decision and Order Approving Settlement and Dismissing Complaint With Prejudice)
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Summary:
[STAA Digest X D] SETTLEMENTS; SETTLEMENTS MAY NOT BE SUBMITTED UNDER SEAL, BUT PARTIES MAY
REQUEST PREDISCLOSURE NOTIFICATION UNDER 29 C.F.R. § 70.26
In Bettner v. Crete Carrier Corp., ARB No. 07-093, ALJ No.
2006-STA-33 (ARB Sept. 27, 2007), the ALJ stated in a recommended decision and
order approving a settlement that the settlement had been filed “under seal.” The ARB noted that in Porter v.
Brown & Root, Inc., 1991-ERA-004 (Sec’y Feb. 25, 1994), the Secretary
of Labor refused to approve a settlement in which the parties had agreed that
the settlement of the complainant’s whistleblower complaint would be maintained
under seal. Rather, the ARB indicated that the settlement would be
subject to the 29 C.F.R. § 70.26 pre-disclosure notification procedure prior to
any release under FOIA, but that the ALJ’s statement that the settlement is
filed “under seal” was not in accordance with law.
Ellison v. Washington Demilitarization Co., ARB No. 05-098, ALJ No. 2005-CAA-9 (ARB Sept. 25, 2007)
(Order of Remand)
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Summary:
[Nuclear & Environmental Digest VII D 6] TIMELINESS OF RESPONSE TO MOTION FOR SUMMARY
DECISION SERVED BY MAIL; ALJ’S ORDER PERMITTING FILING BY FAX DOES NOT CUT OFF
THE FIVE ADDITIONAL DAYS FOR MAILING PROVIDED FOR BY 29 C.F.R. § 18.4(c)(3)
In Ellison v. Washington Demilitarization
Co., ARB No. 05-098, ALJ No. 2005-CAA-9 (ARB Sept. 25, 2007), the
Respondent served a motion for summary decision by mail. The ALJ erred when he
failed to afford the Complainant the additional five days for mailing a
response provided for by 29 C.F.R. § 18.4(c)(3), prior to ruling on the motion
for summary decision. The ALJ had evidently believed that he had ordered the
parties to file responsive documents by fax, and therefore the additional
mailing days provided for by section 18.4(c)(3) were inapplicable. However,
the text of the ALJ’s order had only permitted the filing of pleadings and other
documents by fax, and had not directed it.
O'Mahony v. Accenture Ltd., ARB No. 06-054, ALJ No. 2005-SOX-72 (ARB Sept. 24, 2007)
(Final Order Dismissing Appeal)
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Summary:
Removal to federal district court.
Calhoun v. United Parcel Service, ARB No. 04-108, ALJ No. 2002-STA-31 (ARB Sept. 14, 2007)
(Final Decision and Order)
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Summary:
[STAA Digest V B 2 b] PROTECTED ACTIVITY; GENERAL DISSATISFACTION WITH THE
RESPONDENT’S PRE-TRIP INSPECTION METHODS DOES NOT CONSTITUTE PROTECTED ACTIVITY
In Calhoun v. United Parcel Service, ARB No.
04-108, ALJ No. 2002-STA-31 (ARB Sept. 14, 2007), the Complainant argued that
he had the responsibility under the FMCSR, 49
C.F.R. 392.7 and 396.13, to assure himself that his assigned truck was in safe
operating condition before he drove it. The Complainant argued that he
had the right to conduct the inspection to his standards no matter how long it
took. The ARB rejected this contention, holding that the Complainant could complain about the
safety of his vehicle during or following inspections pursuant to 49 C.F.R. §§
392.7 and 396.13, but that, under the complaint clause of the STAA, he had to
be at least be acting on a reasonable belief regarding the existence of a
safety violation. The ARB stated that this standard required the
Complainant to prove that a person with his expertise and knowledge would have
a “reasonable belief” that the Respondent’s inspection methods were in
violation of the regulations and that the Complainant’s use of the Respondent’s
pre-trip inspection methods would lead the Complainant to reasonably believe
that the truck was not in good operating order and safe to drive. In the
instant case, the record was not only devoid of evidence that the Respondent’s
pre-trip inspection methods violated the regulations, but contained substantial
evidence showing that its methods exceeded both industry practice and the
requirements of the FMCSRs.
[STAA Digest V B 2 b] PROTECTED ACTIVITY; REFUSAL TO DRIVE; DRIVING UNDER PROTEST IS NOT A REFUSAL TO DRIVE
In Calhoun v. United Parcel Service, ARB No.
04-108, ALJ No. 2002-STA-31 (ARB Sept. 14, 2007), the Complainant argued that
he engaged in protected activity when he drove under protest because he was not
able to conduct the pre-trip inspection according to his own methods, but was
required to use the Respondent’s methods. The ALJ found that a conditional
refusal to drive satisfied the “refusal to drive” element of a prima facie case
under the STAA. The ARB disagreed, holding that the plain language of 49
C.F.R. §§ 31105 (a)(B)(i or ii) limits protection under this section to a
person who “refuses to drive.” Thus, the Complainant could not seek protection
under the refusal to drive provision of the STAA for his driving under protest.
[STAA Digest V B 2 b] PROTECTED ACTIVITY; REFUSAL TO
DRIVE; TAKING ONESELF OUT OF SERVICE BECAUSE OF PERSONAL UPSET OVER BEING
SUPERVISED DURING A PRE-TRIP INSPECTION IS NOT PROTECTED ACTIVITY
In Calhoun v. United Parcel Service, ARB No.
04-108, ALJ No. 2002-STA-31 (ARB Sept. 14, 2007), the Complainant took himself
out of service because he was too upset to drive because he was being required
to conduct his pre-trip inspection in the presence of his supervisor and a shop
steward. The ARB held that this was not protected activity under the refusal
to drive provisions of the STAA because the Complainant did not refuse to drive
because to he was concerned about an actual violation of a FMCSR or because he
had a reasonable concern about injury to himself or the public because of his
vehicle’s unsafe condition.
[STAA Digest V A 4 c iii] PROTECTED ACTIVITY; COMMUNICATION TO RESPONDENT; MERELY
CONDUCTING A PRE-TRIP INSPECTION THAT WAS MORE RIGOROUS THAN THE RESPONDENT’S
METHODS DOES NOT CONSTITUTE PROTECTED ACTIVITY
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.
[STAA Digest VI B 4] ADVERSE ACTION; SUPERVISION OF PRE-TRIP INSPECTIONS
In Calhoun v. United Parcel Service, ARB No.
04-108, ALJ No. 2002-STA-31 (ARB Sept. 14, 2007), the Complainant was a truck
driver with an excellent driving record and a strong commitment to safe
driving. He alleged that the Respondent retaliated against him by conducting
“excessive supervision” because of “his refusal to violate 49 C.F.R. §§ 392.3
and 396.13” which requires drivers not to drive unless they are satisfied that
the assigned vehicle is in good working order and safe operating condition. The
Respondent started supervising the Complainant’s pre-trip inspections because
other feeder drivers on the Complainant’s route averaged 36 minutes for their
pre-trip inspection, while the Complainant’s average was between 100 minutes
(for a preassembled double) and 109 minutes (assembling of doubles required). The
additional time disrupted service, caused late package deliveries or caused
other workers to work overtime, and resulted in larger annual pay to the
Complainant than other drivers. The ARB found that the Respondent’s supervision
of the Complainant’s pre-trip inspections was not adverse action (1) because the
Complainant’s interpretation of his rights pursuant to the FMCSRs was
unreasonable, and (2) because the Respondent had not discriminated against the
Complainant in regard to his pay, terms or privileges of employment, but had
taken legitimate actions designed to reduce the amount of time that the
Complainant was spending on his pre-trip inspection.