8. On or about January 30, 1998, the Area Director of the Occupational Safety and Health Administration (OSHA) issued "Secretary's Findings" dismissing Mr. Scott's complaint.

9. The Office of Administrative Law Judges, U.S. Department of Labor properly exercises in personam and subject matter jurisdiction to hear this matter.

   B. The Parties' Contentions:    1. Complainant:

   The complainant argues that the four notices he provided Roadway, on April 18, 1997 (CX 2-5E), September 29, 1997 (CX 9-11), October 6, 1997 (CX 19-10B), and October 19, 1997 (CX 7-12E), constituted protected activity covered by the STAA. As a result of his protected activities and of giving notices Roadway gave him letters of warning on April 1, 1997 and October 10, 1997. (CX 2-5A and CX 7-12A). Eight days after Scott's final letter to Roadway he was fired. Other than Scott's eight letters of warning, he argues his past history is irrelevant.

   Scott contends that a driver engages in protected activity under the STAA when he refuses to drive a commercial vehicle when he takes sick leave because he is too sick to do so safely. This is because the motor carrier regulations provide in pertinent part:

No driver shall operate a commercial motor vehicle, and a motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the driver's ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the motor vehicle.

49 C.F.R. § 392.3 (1997)(Emphasis added). Scott adds that Roadway's disciplinary policy, i.e., issuing letters of warning for taking "extra" sick days, is not an attendance policy, as argued by Roadway, but a violation of the STAA.

   2. Respondent:

   Roadway argues that the Secretary should give deference to the Ohio Joint State Committee's (OJSC) decision to uphold Scott's termination. Roadway had wanted Scott discharged at the local hearing, but the union did not. The OJSC was a neutral body at which the complainant was fully represented by a union representative. He had the opportunity to provide the OJSC with all the information. Roadway argues Scott's disciplinary record of ten letters of warning, and a 122-day suspension, in the prior nine months support his termination.

   Roadway argues that Scott's supervisor, Mr. Olszewski, did not know of Scott's OSHA charge or complaint before Scott was discharged. Even though Scott had gone to OSHA in September 1997, the report was dated much later.

   Roadway does not agree that the letters of warning given Scott were for taking sick call, rather it argues, based on Mr. Olszewski's testimony, that the letters of warning were for violations of Roadway's "attendance" policy. Roadway argues that two of Scott's absences for sickness were not medically justified, but presented no independent evidence to support its claim. Further, Roadway contends that issuance of "letters of warning" for drivers taking time off for illness, such as in this case, when drivers have no sick leave, annual leave, or other unused personal time off available is simply a personnel management matter or an absence policy which does not run afoul of the STAA. It argues that it disciplined and or discharged Scott for legitimate, non-discriminatory reasons, namely, violations of its absenteeism policy and his overall abysmal work record.

D. If the respondent so violated 49 U.S.C. § 31105:

1. What action, if any, should be taken to abate the violation?
2. If and when the complainant is reinstated what will be the pay, terms and privileges of his employment?
3. What compensatory damages, including back pay, the complainant may be entitled to? and,
4. What reasonable costs and expenses is the complainant entitled to in bringing and litigating the case, including attorney's fees?

   A. STAA violations -- Overview

   A complainant may recover under the Act under three circumstances:

    First, by demonstrating that he was subject to an adverse employment action because he has filed a complaint alleging violations of safety regulations. 49 U.S.C. § 31105 (a)(1)(A). This provision of the Act provides specifically and in pertinent part:

(a) Prohibitions. -- (1) A person may not discharge an employee, or discipline or discriminate against an employee regarding pay, terms, or privileges of employment, because --

(A) the employee . . . has filed a complaint or begun a proceeding related to a violation of a commercial motor vehicle safety regulation, standard, or order, . . .

   The U.S. Department of Labor (DOL) interprets this provision to include internal complaints from an employee to an employer. DOL's interpretation that the statute includes internal complaints has been found "eminently reasonable." Clean Harbors Environmental Services, Inc. v. Herman, ___ F.3d___, No. 97-2083, 1998 WL 293060 (1st Cir. June 10, 1998)(case below 95-STA-34). The Circuit Court of Appeals has stated internal communications, particularly if oral, must be sufficient to give notice that a complaint is being filed and thus that the activity is protected. There is a point at which an employee's concerns and comments are too generalized and informal to constitute "complaints" that are "filed" with an employer within the meaning of the STAA. Id.

    Second, by demonstrating that he was subject to an adverse employment action for refusing to operate a vehicle "because the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety or health." 49 U.S.C. § 31105(a)(1)(B)(i).

   In such a case, the complainant must prove that an actual violation of a regulation, standard, or order would have occurred if he or she actually operated the vehicle. Brunner v. Dunn's Tree Service, 94 STA 55 (Sec'y Aug. 4, 1995). However, protection is not dependent upon actually proving a violation. Yellow Freight System, Inc., v. Martin, 954 F.2d 353, 356-357 (6th Cir. 1992).

   The burdens of proof under the Act have been adopted from the model articulated by the Supreme Court in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981) and in St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742 (1993). See Anderson v. Jonick & Co., Inc., 93-STA-6 (Sec'y, September 29, 1993).

    In Byrd v. Consolidated Motor Freight, 97-STA-9 at 4-5 (ARB May 5, 1998), the Administrative Review Board (ARB), summarized the burdens of proof and production in STAA whistleblower cases:

   Once the complainant satisfies these four elements, a rebuttable presumption of discrimination arises, and the burden of production shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse action. The burden shifting to the employer at that point is only to articulate a legitimate, nondiscriminatory, reason for the adverse action. The employer's burden at this point is one of production, not of proof.

* denotes fact this was a protest in response to a Letter of Warning or discharge notice. +"LW" means "letter of warning." The matters denoted in bold font pertain to Scott's complaints about Roadway's sick leave policy.

   Other than Scott's OSHA letter, there was no dispute that Roadway received Scott's various letters and doctors' excuses. (TR 283, 285, 341). Although OSHA's letter to Roadway is dated 10/28/97, Mr. Olszewski was not aware of it until sometime in 1998. (TR 339). OSHA investigator, Dennis Russell, had interviewed Scott at his home then subsequently typed the statement for Scott's signature. (RX 4-171, pp. 359-362).

   The STAA covers, among other things, complainants who allege violations of the "illness rule" of the federal motor carrier regulations:

No driver shall operate a motor vehicle, and a motor carrier shall not require or permit a driver to operate a motor vehicle, while the driver's ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him to begin or continue to operate the motor vehicle.

49 C.F.R. § 392.3 (1996)(emphasis added). See, e.g., Self v. Carolina Freight Carriers Corp., Case No. 89-STA-9, Sec. Final Dec. and Ord., Jan. 12, 1990. Protection is not dependant on actually proving a violation of a regulation; the complaint need only relate to such a violation. Nix v. Nehi-R.C. Bottling Co., Case No. 84-STA-1, Sec. Dec. and Ord., July 13, 1984, slip op. at 8-9.

   On October 29, 1997, Scott applied to the Ohio Bureau of Workers' Compensation for temporary total compensation. (CX 4-26D). Dr. Bouchard informed the Ohio Industrial Commission that Mr. Scott had been temporarily disabled from 10/5/97 through 10/9/97 from joint disease and asthma and needed continuing medication and physical therapy in order to improve. (CX 4-26C). He observed that exacerbation was to be expected from "over-use" and weather changes. (CX 4-26C). Scott testified he received compensation as a result of that proceeding. (TR 66, 71).

   A driver's refusal to drive (a 2,000 mile trip) in part because he was in pain or was drowsy due to medication has been found to constitute protected activity, i.e., making the driving unsafe. Palazzolo v. PST Van Lines, Inc., 92-STA-23 (Sec'y, Mar. 10, 1993).

   I find that Mr. Scott's absences for his illnesses or afflictions of March 28 through March 31, 1997, October 5 through October 8, 1997, and November 27 through November 29, 1997 constitute "protected" activity since his operation of a commercial motor vehicle would have amounted to actual violations of 49 C.F.R. § 392.3. His ability or alertness was so likely to become impaired through illness, or any other cause, i.e., the named afflictions, as to make it unsafe for him to begin to operate the motor vehicle.

testified that ninety-nine percent of the warning letters he received in 1997 were unjustified. (RX 4-171, p. 350).

   Mr. Scott was given "letters of warning" for the following "infractions, on the dates indicated:

 Infraction                             Date     Issuer        Exh. # 
   
 1.  Unavailable for work 6/17/96.      6/18/96               RX 1-169-9
 2.  August 6, 1996 speeding citation   8/12/96  Olszewski    RX 1-169-9
 3.  Violation of                       8/13/96               RX 1-169-9
     "48-hour off" work rule.
 4.  Work unavailability 8/29-30/96 for 8/29/96  Olszewski    RX 1-169-9
       lawyer's call.
 5.  Accident caused by recklessness &  11/15/96 Olszewski    RX 1-169-9
      failure to report accident of 11/13/96.
      (Discharge Letter)(RX 8-166A-166P 
      are photographs involving the accident).
      (TR 638- 643, 644- 655; RX 4-171
      page 109-128).
 6.  Stealing Co. money caused by       11/18/96 Olszewski    RX 1-169-9
     double payment at Scott's request. 
     (RX 4-171 pages 152-154)
 7.  Driving defective/unsafe truck     11/19/96 Olszewski    RX 1-169-9
     11/13/96 & misinforming supervisor of defect.
 8.  Recap of local hearing             11/21/96 Olszewski    RX 7-15A
     letter re: discharge.     
     [Primarily re; 11/13/96 accident &                       (TR 629)
      work record].
 9.  Failure to complete                3/24/97  Peterson     RX 1-169-9
     shift with 2.25 hours     
     remaining & saying he had no time left.*                 RX 1-169-11
     (TR 275; RX 4-171 p. 174)                                CX 14-4A
 10. Unavailability for work by going   4/1/97    Olszewski    RX 1-169-9      
     on sick call 3/28-3/31/97 at 1100.*                      CX 2-5A
     (RX 4-171 pp.  177-205).                                 RX 1-169-17
 11. Fail to report to work on time    4/7/97    Peterson     RX 1-169-9
     4/4/97. (4 minutes late).  (TR 195, 286).                RX 1-169-23
     (RX 4-171 p. 208)                                        CX 15-6A
 12. Fail to make running time         4/21/97   Aeppli       RX 1-169-9
     4/16/97. (49 min.  late).* (TR 289)                      RX 1-169-26
     (RX 4-171 p. 217-220)                                    CX 16-7A
 13. Fail to report to work            8/13/97   Doody        RX 1-169-9
     on time 8/11/97. (10 min.  late).* (TR 199, 306).        RX 1-169-32
     (RX 4-171 p. 220)                                        CX 17-8A
 14. Violation of 48-hour rule         9/5/97    Olszewski    RX 1-169-9
     (lawyer will call, 8/26-8/27/97).* (TR 307, 313-332,     RX 1-169-37
     682; RX 4-171 p. 227)                                    CX 18-9A
 15. Fail to make running times        9/25/97   Olszewski    RX 1-169-9
     9/17 & 9/18/97. (1  hours + 0.62 hours).*               RX 1-169-51
        (TR 333-338; RX 4-171 p. 245-253).                    CX 19-10A

* denotes this action was followed by Scott's protests or grievances. The matters denoted with bold lettering pertain to violations of the sick call policy.

   Both Mr. Olszewski and Mr. Scott testified about the circumstances behind the warning letters. At his deposition, Scott testified that the November 1996 accident was caused by his load shifting as he drove the speed limit on a curve on the interstate causing the rear trailer to flip. (RX 4-171, page 110-128). Scott averred that the information in the November 15, 1996 (accident) warning letter was not true. (RX 4-171, page 129).

   Mr. Olszewski said he had no reason to disbelieve Scott concerning his response to the March 24, 1997 (fail to complete shift) warning letter. (TR 278). Roadway claimed he misled the dispatcher when questioned about his remaining available work hours, but Scott denied he had been asked if he had remaining hours left in which he could drive. (RX 4-171 pp. 174-177). The fact is he had time remaining in which he could have worked, but was not assigned any shuttle run because of his response. (TR 224-225, 227-228, 660-661).

   Mr. Olszewski testified the "call-card" shows Mr. Scott was called for a shuttle at 1064, subsequently requested placement on the sick board at 11:00 on

March 28, 1997, and called to return to the active board at 0698 on March 31, 1997. (TR 279; 664). Scott agreed. (TR 416-419). Scott testified concerning this letter of warning at his deposition. (RX 4-171 pp. 177-205). Scott testified he started his sick leave on March 28, 1997, but did not drive to visit the doctor until March 29, 1998. (TR 421-2). At his earlier deposition, Scott had testified that he had a hip problem and was in extreme pain which affected him to the point where he could not drive. (RX 4-171 page 32; TR 440). He said he was sick during this entire period. (RX 4-171 p. 200). He considered Roadway's issuance of warning letters under these circumstances coercive. (RX 4-171 p. 205). In light of Dr. Negi's illness verification, March 29, 1997, Roadway's argument that the "deficient" doctor's excuse makes his claim that he was too ill to drive not credible, is unsupported. Scott had not gotten warning letters for sick days when he had had adequate sick days available. (TR 424). Scott testified he had gotten sick while on duty, but never went into work with diarrhea. (RX 4-171 p. 207-8).

   Mr. Olszewski testified that a room full of Roadway drivers was held up as a result of Scott's tardiness on April 4, 1997. (TR 672-3). Roadway's policy is that a driver who accepts a work call must report to work within two hours of that call. (TR 665-667). Scott was allegedly four minutes late. Scott denied he was late for work. (RX 4-171 p. 209). At his deposition, Scott said he tape recorded Mr. Olszewski and Mr. Peterson "because he doesn't always tell the truth about these things." (RX 4-171 p. 213).

   Mr. Olszewski doubted Scott's claims of traffic delays in regard to the April 21, 1997 letter of warning. (TR 676). He was allegedly 49-minutes late. Scott's trip logs reflect he took a one half hour break just ten minutes before reaching his home destination in Akron. (TR 678). Scott disputed that letter. (RX 4-171 p. 217-220). Mr. Olszewski testified that when called drivers must report to work within two hours and that if a driver subsequently reports off Roadway's freight scheduling is "destroyed." (TR 665).

   Scott testified he was not late on August 11, 1997 as Roadway asserted in its August 13, 1997 warning letter. (RX 4-171 p. 220). Concerning the "48-off" violation which was the subject of the September 5, 1997 warning letter, Scott testified that he did not understand the rule at the time because it had been recently changed. (RX 4-171 p. 229-23).

   Mr. Olszewski did not believe Scott had adequate justification, i.e., fog and road construction, for not making his running times which were the subject of the September 25, 1997 letter of warning. (TR 333-338). Scott disputed this letter as well testifying he did make his running times. (RX 4-171 pp. 245-253).

   Scott testified he was out sick from October 5 until October 9, 1997 and had no reason to question the times listed on the warning letter concerning that incident. (TR 448-450; RX 4-171 pp. 255-264). He did not think he had any remaining sick days remaining at the time. (TR 450). He saw Dr. Bouchard in October 1997 for a medical condition. (TR 458). His physician prescribes Naprosyn, among other medications, for his hip pain. (TR 460). Dr. Bouchard provided an illness verification form stating Scott was incapacitated due to illness or injury. (RX 1-169, page 71). Roadway presented no independent evidence to the contrary.

Scott testified that Roadway coerced him to operate a motor vehicle by requesting him to go to work (when he was ill). (RX 4-171, p. 263).

   With respect to the October 23, 1997 warning letter for not making his running time, Scott testified that he in fact did make his running time and there was no agreed running time in effect. (RX 4-171, pp. 264-267 ). Scott disputed the October 23, 1997 warning letter contending he did, in fact, follow the instructions he was given which were not those described in the warning letter. (RX 4-171 pp. 268-279). He also testified that he had made his running time. (RX 4-171 p. 279). Scott's failure to follow the instructions, with which another driver had no difficulty, resulted in fifteen customer service failures. (TR 230, 698-700; RX 1-169, page 74).

   Mr. Scott denied having any accidents, altercations, or speeding tickets or stealing in the nine months before his October 1997 discharge. (TR 153-4). He said he was familiar with the Family and Medical Leave Act. (TR 395). He had been provided a copy of Roadway's work rules for 1996 and 1997. (TR 396-7).

   Scott disputed the 11/21/97 letter of warning for "Fail to answer work call." (RX 9-50A). At his deposition he testified that Roadway knew he was available to be paged on his pager yet he was not "beeped" and Roadway did not follow its work rules calling him (RX 4-171 pp. 314-5, 320). Scott contested his 11/25/97 warning letter as well. (RX 4-171, pp. 320-324).

   At his deposition, Scott testified that his health was generally "okay, fair" and that he had never been treated for a serious illness or disease, that he had a hip problem caused by an accident, December 12, 1993. (RX 4-171 pages 8, 13). He added the hip problem flares up in damp or cold weather. (RX 4-171 page 10).

   Scott contested the warning letter for "Failure to follow work rules re 48-off,' 11/19-11/22/97" issued on 11/26/97. (RX 11-52A). He testified that Roadway had not contacted him as they had claimed in the warning letter and dropped him from the board. (RX 4-171, pp. 329-332).

   Scott admitted he was out on sick call from November 27 through November 29, 1997 and claimed he was sick. (RX 4-171, pp. 325-329). However, he testified he could not remember whether he had seen a doctor or provided Roadway with a doctor's excuse at the time. (RX 4-171, p. 326).

   Article 46 of the collectively bargained for Central States Supplement to the National Master Freight Agreement, provides that a "warning notice" or letter, shall remain in effect for no more than nine months from the date of the notice. (CX 13-1; TR 181-184).

   Mr. Adams, Teamsters Local 24 President, testified that he had seen letters of warning issued for employees being one minute late. (TR 195). According to him Roadway issues their share of warning letters. (TR 196). They send letters to anyone who violates the rules. (TR 241). Mr. Adams explained "running times" are the agreed upon trip times expected in the normal course of business, not including extra-ordinary events, i.e., accidents. (TR 198, 289). "See you in two," in driver's parlance, means a driver who is recalled by a company will report within two hours. (TR 226, 240). He said employees just about always file protest letters to Roadway's letters of warnings. (TR 234-5). However, letters of warning and violations of federal law may not be grieved through the grievance procedure. (TR 236, 249). Rather, only contract violations may be "grieved." (TR 246).

unauthorized vacation extension; two failures to meet running times by 30 minutes and 2 hours; improper logging procedures; failure to meet running time by over two hours and delay of freight; and, insubordination at DuBois, PA, terminal. Mr. Olszewski testified this driver was discharged in May 1998 for his overall work record. (TR 362, 384).

   Driver "13" had four letters of warning between March 7, 1996 and June 11, 1997. (CX 21-28A-D). They were for: two speeding citations; failure to attend driver training; and, speeding in yard. Mr. Olszewski testified that to his knowledge this driver had not been discharged. (TR 364).

   Driver "22" had six letters of warning between March 26, 1996 and July 28, 1997, five of which were in the previous nine months. (CX 22-29A-F). They were for: failure to follow instructions or delay of freight (10 bills); twice unavailable for work; 43 minutes tardiness; and, two unexcused absences due to illness without any sick days. Mr. Olszewski testified this driver was not fired. (TR 367).

   Driver "27" had twelve letters of warning between June 26, 1996 and November 25, 1997, five of which were in the previous nine months. (CX 23-30A-L). They were for: delaying freight and not complying with DOT log entry regulations; delaying freight & noting earlier oral warnings; improper work clothes; one hour late dispatch; two unexcused absences due to illness without any sick days; unexcused absence; 20-minutes late for work; four-day unexcused absence from work; delaying freight due to not following proper procedures (local hearing planned); failure to report for work; and, a speeding citation. Mr. Olszewski testified he had not been fired. (TR 368). Mr. Olszewski testified he was an outstanding driver who represented Roadway at the National Truck Driving Championships. (TR 736-737).

   Driver "28" had four letters of warning between April 23, 1996 and February 4, 1997, three of which were in the previous nine months. (CX 24-31A-D). They were for: delaying freight; failure to follow instructions; unexcused absence due to illness without any sick days; and, an improper pre-trip inspection. Mr. Olszewski testified this driver is still employed at Roadway. (TR 371).

   Driver "32" had five letters of warning between May 7, 1996 and April 3, 1997, four of which were in the previous nine months. (CX 25-32A-E). They were for: failure to follow instructions; two violations of 48-off work rules; failure to answer work call; and, accepting a work-call then calling in sick to back on sick call. Mr. Olszewski testified that this driver was not fired. (TR 372).

   Driver "34" had four letters of warning between July 26, 1996 and March 28, 1997. (CX 26-33A-D). They were for: unavailability for work by being on sick call 44.53 hours; two unexcused absences due to illness without any sick days; and, failure to follow rules regarding doctors will-call. Mr. Olszewski testified that this driver is still employed at Roadway. (TR 373).

   Driver "40" had seven letters of warning between April 15, 1996 and July 21, 1997, five of which were in the previous nine months. (CX 27-34A-G). They were for: three unexcused absences (local hearing planned); twice failing to follow work rules to change status from doctors will-call to sick call over four-day period (local hearing planned) and a two-day period; and, a 40-minutes tardiness after calling in. Mr. Olszewski testified that this driver was not fired but has been off work for over a year. (TR 374-5). This driver had been fired and then reinstated through the grievance-arbitration process. (TR 741-742).

   Driver "57" had seven letters of warning between May 23, 1996 and December 11, 1997, six of which were in a nine month period. (CX 28-35A-H). They were for: unavailable for work; running out of fuel; unavailable for work by going on doctors' will-call for five days; speeding citation; 15 minutes tardy; 17 hours unavailable for work; violation of 48-off rules (local hearing planned); and, a two-day absence by going on sick call. Mr. Olszewski testified that this driver is still employed at Roadway. (TR 376).

   Driver "63" had three letters of warning between January 8, 1996 and May 7, 1997. (CX 29-36A-C). They were for: failure to follow instructions, delaying freight, and sabotaging company equipment (local hearing planned); fail to follow instructions; and, a speeding citation. Mr. Olszewski testified that this driver is still employed at Roadway. (TR 378). This driver had over one million preventible-accident-free miles with Roadway. (TR 743-744).

   Driver "72" had eight letters of warning between March 15, 1996 and December 10, 1997. (CX 30-37A-H), only one of which was in the previous nine months. They were for: speeding citation; falsifying log; stealing company time (relating to falsifying log incident); twice stealing company time (local hearing planned); six-day suspension following local hearing based on prior 9-month work record; and, unprofessional conduct. Mr. Olszewski testified that Roadway had sought discharge, but agreed to a suspension. (TR 380). This driver had been with Roadway for about twenty years with 1.9 million accident-free miles. (TR 745-747).

   Driver "94" had thirteen letters of warning between March 26, 1996 and August 29, 1997, six of which were in the previous nine months. (CX 31-39A-M). They were for: delaying dispatches; suspension for suspicion of drug use which was rescinded; leaving work without completing shift; unexcused unavailability for work; failure to answer beeper for work call; failure to follow safety procedures resulting in personal injury; two violations of 48-off policy; unexcused absences due to illness without any sick days; failing to change status from doctors will-call to sick-call; falsifying logs; and, a hearing recap of past work record with no action. Mr. Olszewski testified that this driver was not suspended and is still employed at Roadway although six warning letters were considered at his local hearing. (TR 380, 383).

   "Proof that similarly situated nonprotestors were disciplined just as harshly for the same infraction suggests nonretaliation." Moon v. Transport Drivers, Inc., 836 F.2d 226 (6th Cir. 1987) at 230 citing cf DeCinto v. Westchester County Medical Center, 821 F.2d 111, 115 (2d Cir. 1987).

with fewer warning letters than Scott get fired. (TR 236). He has also seen drivers go before the OJSC more than three times, but it was unusual. (TR 236-7).

   As the ARB has noted, " whether an employee has been discharged depends on the reasonable inferences that the employee could draw from the statements or conduct of the employer."' ARB Case No. 98-104, ARB Final Decision and Remand Order (Remand Order), Jan. 9, 1997, slip op. at 4, quoting Pennypower Shopping News, Inc. v. N.L.R.B., 726 F. 2d 626, 629 (10th Cir. 1984). As the Court in Pennypower noted:

The fact that there is no formal discharge is immaterial if the words or conduct of an employer would logically lead an employee to believe his tenure had been terminated . . . [S]ince the company created the ambiguity which reasonably caused the employees to believe they were discharged, or at least to believe their employment status was questionable due to their strike activity, the burden of the ambiguity must fall on the company.

Pennypower Shopping News, Inc. v. N.L.R.B., 726 F. 2d at 630. Although Scott was notified of his impending termination on October 27, 1997, one day before Roadway was notified by OSHA of Scott's complaints, I find his termination was effective on January 14, 1998.

   In ascertaining the reasons for Roadway's discharge of the complainant it was appropriate to consider Roadway's disciplinary actions against the complainant before the immediate disciplinary actions resulting in his discharge. Yellow Freight System, Inc. v. Reich, 27 F.3d 1133, 1141 (6th Cir. 1994). Scott had numerous, legitimate, disciplinary actions taken against him prior to his termination.

   In analyzing whether the articulated reasons for the discharge are credible, I find there is ample evidence demonstrating that Scott was far from a model employee. For instance, when a physician wrote that he could return to work on a given day, Scott would wait until the day was nearly over to return. A reasonable man would make himself available to work on the day a doctor says he could return, but Scott abused the doctor's excuse, in part, by reporting after 11:00 p.m. on one such day. Scott had at least one speeding citation, repeatedly did not make his running times and repeatedly violated company policies and rules, i.e., the 48-off rules and with respect to reporting his 1996 accident. He was less than completely forthright with Roadway on more than one occasion. Scott received numerous warning letters and discharge letters, but did not improve his record. In spite of his obvious intelligence, he failed to follow relatively simple instructions concerning his runs on several occasions which resulted in Roadway not meeting its customer requirements. I find no discriminatory intent in Scott's termination. See, Webb v. Carolina Power & Light Co., Case No. 93-ERA-42, Final Dec. and Ord., Aug. 26, 1997, slip op. at 14; accord, Acord v. Alyeska Pipeline Svc. Co., Case No. 95-TSC-4, Final Dec. and Ord., June 30, 1997, slip op. at 5-9.

   When there are both legitimate and discriminatory reasons for an adverse action, the dual motive analysis applies. Spearman v. Roadway Express, Inc., Case No. 92-STA-1, Sec. Final Dec. and Ord., Jun 30, 1993, slip op. at 4, aff'd sub nom. Roadway Express, Inc. v. Reich, No. 93-3787 (6th Cir. Aug. 22, 1994), 1994 U.S. App. LEXIS 22924 and Yellow Freight System, Inc. v. Reich, 27 F.3d 1133, 1140 (6th Cir. 1994). Under the dual motive analysis, the burden shifts to the respondent to show that it would have taken the same action against the complainant even in the absence of protected activities. Asst. Sec. and Chapman v. T. O. Haas Tire Co., Case No. 94-STA-2, Sec. Final Dec. and Ord., Aug. 3, 1994, slip op. at 4, appeal dismissed, No. 94-3334 (8th Cir. Nov. 1, 1994).

   Scott claims that Roadway falsified records and statements to justify warning letters are not proven. Scott did not establish ingenuous reasons for the vast majority of his derelictions.

   As the Sixth Circuit has observed, "The relevant inquiry is the employer's perception of his justification for the firing." Moon v. Transport Drivers, Inc., 836 F.2d 226, 230 (6th Cir. 1987). I find that Roadway has established that even absent any protected safety complaints or protected refusals to drive due to illness on Scott's part, the company legitimately would have fired him for his abysmal record. In this case, Roadway provided a credible explanation for discharging Scott. I find that Scott did not establish by a preponderance of the evidence that the reasons given for his discharge were pretextual.

   G. Roadway's Attendance or Absence Policy

   Roadway argues that the National Master Freight Agreement and the Central States Area Over the Road Motor Freight Supplemental Agreement (hereinafter "Supplemental Agreement") govern the disciplinary process for Roadway's over-the-road drivers. Brief at page 2. According to Mr. Adams, Teamsters Local 24 President, the union is governed by the Agreements. (TR 182). The NMFA, Article 38, Section 1, addresses the general award of five days of sick leave per annum, but not any procedure for violations of Roadway's sick leave policy. Section 3 permits employees to take up to twelve weeks of unpaid leave for "serious health condition(s) of the employee," under the Family and Medical Leave Act. However, that Act is not implicated in the present case.

   The Bid Work Rules: All Drivers, Akron Domiciled Road Drivers, May 27, 1997, paragraph 12, sets forth the rules concerning a driver holding his position on the board upon changing one's status from a doctor's appointment ("doctor will call") to "sick call", or absence for sickness. (CX 18-9F). When a driver was sick if he was called to work he would notify the company he was sick. (TR 59). Roadway would then take the driver "off the board," i.e., put his name on a sick board until he called back. (TR 59). If a driver is out for 24 hours or less, seeks a doctor's attention, and returns to work within the first 24 hours, the driver is not penalized for the absence; it is an excused absence even if the driver has no remaining sick days. (TR 169, 667). If a driver calls in sick and has sick days available, one of those days is deducted. (TR 369). If a driver calls in sick, has sick days

available, but fails to bring in a doctors' excuse he is disciplined and given a warning letter. (TR 370).

   Roadway's Akron policy is that a driver uses his or her sick days when sick. (TR 343). Drivers get five sick days per year under an agreement negotiated with the union. If they wish to take more than the five sick days, they must use personal holidays, vacation days or family medical leave. Drivers employed more than one year receive two weeks of vacation per year. (TR 394). If they do not use any of those options and go beyond the five allotted sick days per year, Roadway issues a letter of warning for the "unexcused absence" "essentially automatically." (TR 23, 29, 282). Mr. Olszewski testified that if a driver accepts a work call, becomes sick on the way to work, goes back home and calls in sick, that definitely would result in the issuance of a warning letter. (TR 282). Roadway "encourages" drivers to seek medical attention when ill. (TR 667).

following day. Id. at 1-2. Curless received a verbal warning for this absence, as it constituted his fourth "incident." Id. at 2. The company argued that it took adverse action against Curless, not for protected activity, but because he "ran afoul" of the absentee policy. The Secretary, however, held that the company's articulation of the cause for the punishment would not suffice. "Complainant ran afoul' of [the company's] policy because he engaged in protected activity." Id. at 6 [emphasis added]. Thus the Secretary held that a violation of STAA had occurred because the company took adverse action against an employee who refused to violate DOT regulations. Id. at 6-7.

   As the Secretary's rulings in Curless and in Self v. Carolina Freight Carriers Corp., Case No. 91-STA-25, Sec. Dec., Aug. 6, 1992, indicate, a policy which permits a company to take adverse action against employees for obeying the law is not "legitimate."

To permit an employer to rely on a facially-neutral policy to discipline an employee for engaging in statutorily-protected activity would permit the employer to accomplish what the law prohibits.

Id. at 5.

   Roadway misses the point. Application of Roadway's absenteeism policy to Scott under the circumstances of this case presented Scott with an untenable choice. He could drive in violation of federal regulations prohibiting the operation of a commercial motor vehicle "while the driver's ability or alertness is so impaired . . . through . . . illness . . . as to make it unsafe for him/her to drive." 49 C.F.R. § 392.3 (1997). Alternatively, he could refuse to drive and be given a letter of warning. This is precisely the kind of situation that STAA's anti-retaliation provision is designed to protect against. 128 Cong. Rec. 29192 (1988).

   To permit an employer to rely on a facially-neutral policy to discipline an employee for engaging in statutorily-protected activity would permit the employer to accomplish what the law prohibits. See NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962); Republic Aviation Corp. v. NLRB, 324 U.S. 793, 802-805 (1945); St. Francis Fed. of Nurses & Hlth. Pro. v. NLRB, 729 F.2d 844, 853-854 (D.C. Cir. 1984); NLRB v. Daylin, Inc., Discount Div., 496 F.2d 484, 487 (6th Cir. 1974); Allied Industrial Wkrs., AFL-CIO Loc. U. No. 289 v. NLRB, 476 F.2d 868, 875-878 (D.C. Cir. 1973); NLRB v. Frick Company, 397 F.2d 956 (3d Cir. 1968).

   Moreover, independent statutory rights "cannot be abridged by contract or otherwise waived," and they take precedence over conflicting provisions in a bargained employment arrangement. Barrantine v. Arkansas-Best Freight Systems, Inc., 450 U.S. 728, 740-741 (1981) and see Brame v. Consolidated Freightways, 90-STA-20 (Sec'y, June 17, 1990). See Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1064 (5th Cir. 1991) ("if the collective bargaining agreement conflicts with [the] STAA, then the

statute supersedes the agreement because labor contracts cannot operate to deprive employees of rights specifically protected by federal statutes").

   The Government interest under the STAA lies in "promoting highway safety and protecting employees from retaliatory discharge." Brock v. Roadway Express, Inc., 481 U.S. 252, 262 (1987)." 'Random inspection by Federal and State law enforcement officials in various parts of the country [had] uniformly found widespread violation of safety regulations,' and [Section] 405 was designed to assist in combating the 'increasing number of deaths, injuries, and property damage due to commercial motor vehicle accidents."' Id., quoting 128 Cong. Rec. 32509, 32510 (1982) (remarks of Sen. Danforth and summary of proposed statute). Specifically, STAA Section 405 was enacted:

to encourage employee reporting of noncompliance with safety regulations governing commercial motor vehicles. Congress recognized that employees in the transportation industry are often best able to detect safety violations and yet, because they may be threatened with discharge for cooperating with enforcement agencies, they need express protection against retaliation for reporting these violations.

Id. at 258.

procedure from the local hearing to the OJSC (in Columbus, Ohio) and finally to the JAC (in Chicago) and arbitration (in Washington, D.C.). (TR 176- 178). The OJSC is comprised of four members from the employer's side and four from the Teamsters Union. None of the employer representatives were Roadway employees. (TR 410-411). The company presents its case first and then the grievant and union stewards present the employee's side. (TR 176). Both the company and the union have the right to rebuttal. (TR 177). The parties are then excused while the OJSC deliberates and reaches a decision. (TR 177).

   The OJSC transcript states that "[N]o committee member sat in judgment on any case in which he was involved." (RX 2-170). The issue before the OJSC was whether Scott was justifiably discharged. The proceedings were tape recorded. Roadway presented its case. It recapitulated the materials found now in RX 1-169. Scott read his protest or grievance letters to the OJSC, including those in which he argued Roadway had violated DOT regulation 392.3. (RX 2-170 pages 31-33, 47-48; RX 4-171 pp. 340-355). The testimony was not given under oath nor were the parties represented by legal counsel. Scott mentioned on the record that his attorney was not allowed to be present. (RX 2-170 page 90). He did not feel properly represented or that he received a fair hearing. (RX 4-171, p. 348-9). At one point, Scott was not allowed to testify concerning Roadway's use of other drivers to speak against him. (RX 2-170 pages 81-2). Scott testified that he did not know what was in the book Roadway presented to the OJSC. (RX 4-171, p. 345). Other than Scott and Mr. Olszewski, no witnesses were called. There is no indication what rules of procedure or evidence were employed and the proceeding appeared to follow ad hoc procedures. There is no indication who prepared the transcript. The record of the OJSC proceeding contains no findings or conclusions of fact or law. Scott's allegations of violations of the DOT regulations are not addressed in the record. There is no indication how the members reached their decision and their decision is not reflected in the transcript. Finally, Scott testified that he complained to the ethics practice committee concerning the way the OJSC hearing had been conducted. (RX 4-171, p. 355 & Dep. exhibit 36).

   The Secretary, under 29 C.F.R. § 1978.112(c), should defer to the outcome of action under a collective bargaining agreement (CBA) only if it is clear those proceedings dealt adequately with all factual issues, that the proceedings were fair, regular and free of procedural infirmities and that the outcome of those proceedings were not repugnant to the purposes and policy of the STAA. Martin v. Yellow Freight System, Inc., 91 Civ. 8370, 1992 U.S. Dist. LEXIS 7331, 1992 OSHD (CCH) P29,708 (S.D. NY May 18, 1992).

   In determining whether to recommend "deferral" it was appropriate to consider the record of the OJSC proceedings. Roadway Express, Inc. v. Brock, 830 F.2d 179 (11th Cir. 1987) and Brame v. Consolidated Freightways, Inc., 90-STA-20 (Sec'y, June 17, 1990). Factors I examined included whether the complainant was represented by counsel, called his own witnesses, cross-examined the respondent's witnesses, whether his union's attorney, if any, conducted meaningful cross-examination or imposed appropriate objections, whether the hearing focused on the events surrounding the incidents resulting in discharge, and whether the parties agreed upon the issues. Spinner v. Yellow Freight System, Inc., 91-STA-17 (Sec'y, May 6, 1992). Further if any deference is to be given, it may only be appropriate to defer to the OJSC's factual determinations, not legal conclusions. Overton v. Consolidated Freightways, Inc., 86-STA-2 (ALJ Mar. 25, 1986) aff'd (Sec'y, June 26, 1986).

   In light of the above observations, it does not appear that the OJSC proceeding reflected even the minimum requirements of due process. While the proceeding may have followed some rules, no evidence of those rules was submitted. The alleged STAA violations raised by Scott were not addressed. Scott was not represented by counsel, no cross-examination was conducted and it does not appear the parties agreed to the issues. While the OJSC process may have merit in facilitating negotiated resolution of employer-employee disputes, I find the proceeding had serious shortcomings. Thus, I cannot recommend that the Secretary defer to the OJSC's decision.

violated the Act by disciplining Scott because he engaged in the latter protected activity. Roadway similarly subjected its other drivers to its "absence/attendance" policy.

   Mr. Scott was given notice of discharge on October 27, 1997, but allowed to remain on the job, under the terms of the National Master Freight Agreement, until January 14, 1998, when the discharge was sustained by the OJSC. The discharge was thus effective on January 14, 1998. While Scott's discharge was based in part on his protected activity, i.e., the sick call incidents, the discharge was not based on his complaints and Roadway successfully established that it would have discharged Scott even in the absence of his protected activities.

   Roadway's Akron facility's facially-neutral policy of disciplining employees who have engaged in statutorily-protected activity violates the Act.

   Under the facts of this case, it would be inappropriate for the Secretary to defer to the outcome of the OJSC proceedings.

   The Complainant and Respondent are Ordered:

   1. Counsel for the Complainant shall submit a detailed petition for the complainant's costs and fees in bringing and prosecuting the complaint to the opposing parties and the undersigned not later than 30 days from the date of this Order. Sikau v. Bulkmatic Transport Co., 94-STA-26 (Sec'y Oct. 21, 1994). The Respondent has fourteen days in which to submit any objections to such a petition.

   2. Counsel for the Complainant shall submit a detailed petition for the complainant's attorney's fees to the opposing parties and the undersigned not later than 30 days from the date of this Order. Complainant's counsel should refer to and address matters referred to in Hilton v. Glas-Tec Corp., 84-STA-6 (Sec'y, July 15, 1986). Contingency fee arrangements are not permitted. Lederhaus v. Paschen & Midwest Inspection Service, Ltd., 91-ERA-13 (Sec'y, Jan. 13, 1993) and Van der Meer v. Western Kentucky University, 95-ERA-38 (ARB April 20, 1998). The Respondent has fourteen days in which to submit any objections to such a fee petition.

   Respondent is further Ordered to:

   1. Expunge from its personnel files and records system the warning letters of April 1, 1997, October 10, 1997, and December 3, 1997, and any reference to said letters;

   2. Respondent is ordered to expunge from its personnel files and records system any notice of suspension pertaining to Complainant's taking of "sick call" in March 1997, October 1997, and November 1997;

   3. To compensate Scott for the costs and expenses he reasonably incurred in bringing this complaint.

   4. To post copies of the attached Notice of Findings (APPENDIX A) regarding the Roadway Akron facility's sick call "absence/attendance" policy in conspicuous places in and about its Akron facility such that its drivers may read it; and,

   5. Maintain the documents from the personnel records of drivers submitted during discovery, under my Protective Order, in manner consistent with the terms of the Protective Order and such that the personal privacy of such employees is protected until such time as all administrative appeals and other avenues of redress in the Federal courts are exhausted.

       RICHARD A. MORGAN
       Administrative Law Judge

RAM:dmr

NOTICE: This Recommended Decision and Order and the administrative file will be forwarded for review to the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Ave., Washington D.C. 20210. See 29 C.F.R. § 1978.109 (a); 61 Fed. Reg. 19978 and 19982 (1996).

   The Surface Transportation Assistance Act, 49 U.S.C. § 31105(a)(1)(B), provides:

   (a) Prohibitions. -- (1) A person may not discharge an employee, or discipline or discriminate against an employee regarding pay, terms, or privileges of employment, because --

    (A) the employee . . . has filed a complaint or begun a proceeding related to a violation of a commercial motor vehicle safety regulation, standard, or order, ...

    (B) the employee refuses to operate a vehicle because--

(i) the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety or health; or

(ii) the employee has a reasonable apprehension of serious injury to [himself] or the public because of the vehicle's unsafe condition. (To qualify for protection under these provisions, a complainant must also have sought from the employer, and been unable to obtain, correction of the unsafe condition).

   Motor carrier regulations provide in pertinent part:

No driver shall operate a commercial motor vehicle, and a motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the driver's ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the motor vehicle.

49 C.F.R. § 392.3 (1997)(Emphasis added).

   Roadway's Akron facility's policy of issuing letters of warning to drivers who have no personal vacation days, sick leave or annual leave days available and do not qualify for family medical leave and who take (a) sick day(s) because their ability or alertness to drive is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the motor vehicle violated the Surface Transportation Assistance Act in this matter.