Ass't Sec'y & Reed v.
National Minerals Corp., 91-STA-34 (Sec'y July 24, 1992)
DATE: July 24, 1992
CASE NO. 91-STA-34
IN THE MATTER OF
ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH,
PROSECUTING PARTY,
AND
CLARENCE REED,
COMPLAINANT,
v.
NATIONAL MINERALS CORPORATION,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
This case arises under Section 405 of the Surface
Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app.
§ 2305 (1988). Before me for review is the [Recommended]
Decision and Order (R.D. and O.) issued on March 31, 1991, by the
Administrative Law Judge (ALJ). Complainant Clarence Reed, an
experienced over-the-road operator of commercial motor vehicles,
Hearing Transcript (T.) 48, alleges that he was discharged by his
employer, Respondent National Minerals Corporation (NMC), because
he refused to operate an unsafe motor vehicle. Upon
consideration, I agree with the ALJ's recommendation that Reed
should prevail on his claim.
At 2:00 a.m. on October 26, 1989, Reed departed NMC's
facility in Pleasant Prairie, Wisconsin, with a load of fly ash,
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arriving at his destination of Lockport, Illinois, by 5:00 a.m.,
and subsequently returning to Pleasant Prairie by 8:00 a.m. Reed
experienced considerable difficulty steering his assigned truck
tractor [1] in that it tended very nearly to swerve out of its
travel lane. T. 122. He also was exposed to "devastating"
noise, smoke, and fumes in the cab. The vibration in the
steering column caused his arms to become numb. He testified:
You could hit [a] bump and . . . that truck
would either take off for the right or to the
left. I mean, you just had to sit there and
hang onto it. . . . I was afraid I was going
to hit somebody or lose it. . . . Like [the
truck] might get away from me. But I just
drove slower and slower, and I made it back.
T. 65-66. Reed also described the steering as feeling "plenty
loose . . . . It had all kinds of play on the string. It seemed
to me that something was wearing out, or was pretty well wore
out." T. 158. Reed's assessment comports with that of Special
Agent Timothy D. Armstrong, U.S. Department of Transportation
(DOT), Federal Highway Administration, Office of Motor Vehicles,
who testified that the additional motion and looseness at the
ball and socket joints of the drag link assembly units were
indicative of extreme wear and fatigue. [2] T. 194.
By 8:00 a.m., Jodi Oldeberg, NMC's Pleasant Prairie office
manager, had arrived at the facility. Reed testified: "I pulled
up in front of the office, and I went inside, and I said, Jod[i],
come out here; I want to show you this truck. I can't drive it
no more. I said, look at me, I'm shaking like a leaf." T. 66.
Reed also documented the following defects in preparing his
driver's post-trip vehicle inspection report: large oil leaks at
the rear of the transmission and in front of the blower and
motor, broken emergency reflective safety triangles, inoperable
speedometer, [3] noisy transmission/rear gear box, excessive
tire wear, mismatched drive tires, low oil level and oil-
saturated underside, water leakage, exhaust leaks, and a broken
windshield. T. 72-73; Exh. G-1.
At Oldeberg's direction, Reed contacted Terminal Manager
Michael Schultz at NMC's dispatch in Eagan, Minnesota, about the
tractor, stating that he would not be willing to operate it on
his next assignment "down to Chicago. . . . right down in the
Loop. I said, you're going to kill somebody with this truck."
T. 69 (Reed). During ensuing telephone conversations, Schultz
threatened Reed with layoff and discharge if he persisted in his
refusal and, at the direction of NMC President William Collins,
discharged him at 5:00 p.m. when he called in for his next days's
dispatch.
Under the burdens of proof in STAA proceedings, a
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complainant must show that he engaged in protected activity, that
he was subjected to adverse action, and that the respondent was
aware of the protected activity when it took adverse action. A
complainant also must present evidence sufficient to raise the
inference that the protected activity was the likely reason for
the adverse action. Roadway Exp., Inc. v. Brock, 830 F.2d
179, 181 n.6 (11th Cir. 1987). An employee is protected under
STAA Section 405(a) if he "has filed any complaint or instituted
or caused to be instituted any proceeding relating to a violation
of a commercial motor vehicle safety rule, regulation, standard,
or order . . . ." 49 U.S.C. app. § 2305(a). See
Davis v. H.R. Hill, Inc., Case No. 86-STA-18, Sec. Dec.,
Mar. 18, 1987, slip op. at 3-4 (both internal and external safety
complaints protected). Cf. Bivens v. Louisiana Power
and Light, Case No. 89-ERA-30, Sec. Remand Dec., June 4,
1991, slip op. at 4-5 (citing cases) (internal safety complaints
to employer protected under environmental whistleblower laws).
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.
Here, Reed complained about and refused to operate the
tractor due to equipment defects, all of which related to safety
violations [4] and many of which constituted violations of DOT
regulations. See T. 174-176, 185, 189-190, 193-194, 198-
202 (Special Agent Armstrong). In particular,
Parts and accessories shall be in safe and
proper operating condition at all times.
These include those specified in part 393 of
this subchapter and any additional parts and
accessories which may affect safety of
operation, including but not limited to,
frame and frame assemblies, suspension
systems, axles and attaching parts, wheels
and rims, and steering systems.
49 C.F.R. § 396.3(a)(1) (1991). Motor vehicles "shall not
be
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operated in such a condition as to likely cause an accident or a
breakdown of the vehicle." 49 C.F.R. § 396.7(a). "Before
driving a motor vehicle, the driver shall . . . be satisfied that
the motor vehicle is in safe operating condition . . . ."
49 C.F.R. § 396.13. Motor carriers shall ensure that their
vehicles are free of oil leaks. 49 C.F.R. § 396.5. Reed's
tractor was required to carry three bidirectional emergency
reflective triangles, 49 C.F.R. § 393.95(f), and an
operational speedometer. 49 C.F.R. § 393.82. Exhaust
systems are regulated and leakage forward of or below the driver
is prohibited. 49 C.F.R. § 393.83. Finally, Agent Armstrong
testified that he "absolutely" considered the steering mechanism unsafe
and would have considered taking the tractor out of service. T. 193-
194, 199. See 49 C.F.R. § 393.209. In these
circumstances I find that Reed refused to operate the tractor (1)
when he would have violated DOT regulations by doing so and (2)
because of his reasonable apprehension of serious injury due to
its unsafe condition.
I also find that Reed articulated his complaints
sufficiently to meet the communication requirement of the
"reasonable apprehension" ground for refusing work. See
LeBlanc v. Fogelman Truck Lines, Inc., Case No. 89-STA-8,
Sec. Remand Dec., 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). It is uncontroverted that Reed detailed the
truck defects in his post-trip vehicle inspection report which,
consistent with NMC policy, he submitted to Manger Oldeberg for
transmittal to the Eagen, Minnesota, facility. The ALJ
implicitly credited Reed's account of his conversation with
Terminal Manager Schultz, i.e., that Reed began by
describing the oil puddles and saturation, the steering and
vibration, the tires, noise, and smoke, and that Schultz became
angry and rebuffed Reed's attempts to explain further. T. 69-70.
Reed also related that the tractor was "not safe" and "not
roadworthy." T. 75-76. Schultz then telephoned NMC's truck
repair agent, Jeffrey Wendt, in Poynette, Wisconsin, who had
serviced the unit before it was transferred to Pleasant Prairie.
Based on Wendt's assurances, Schultz decided that "there [was]
nothing wrong with the truck." T. 403-404, 433 (Schultz). In
that Schultz refused to repair the defects, R.D. and O. at 11,
par. 54, Reed was unable to obtain correction of the unsafe
conditions. NMC does not dispute that it discharged Reed because
he refused to operate the truck. NMC Brief at 4, 22, 26.
Reed succeeded in establishing a prima facie case of
unlawful discrimination. NMC has not shown a legitimate,
nondiscriminatory reason for discharging him and thus has failed
to defend. R.D. and O. at 10, par. 52.
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Reed is entitled to an award of back pay. 49 U.S.C. app.
§ 2305(c)(2)(b). A formula for computing back pay keyed to
the earnings of a "representative employee" gives a reasonable
approximation of what a complainant would have earned but for the
discrimination. Palmer v. Western Truck Manpower,
Inc., Case No. 85-STA-16, Sec. Damages Dec., June 26, 1990, slip op.
at 7, appeal pending, No. 92-70231 (9th Cir. Apr. 13, 1992).
The ALJ's use of this method for computing back pay is reasonable
and, as the computation is supported by substantial record
evidence, I adopt it. R.D. and O. at 12-13. Examination of the
record reveals an error in the ALJ's back pay computation. For
the nine-week period from October 27, 1989, through December 28,
1989, Driver Swentesky earned wages totaling $4,966.39. For the
13-week period from December 29, 1989, through March 29, 1990,
Driver Witt earned wages totaling $8,891.54. Reed thus is
awarded the total of these amounts.
ORDER
Respondent hereby is ordered (1) to purge Complainant's
employment file of any reference to his protected activity and
discharge, and (2) to compensate Complainant for back pay in the
amount of $13,857.93 and for health insurance premiums in the
amount of ,830.64. Prejudgment interest is awarded on the back
pay amount to be determined under Section 6621 of the Internal
Revenue Code at the rate used in computing interest charged on
underpayment of Federal taxes. See Johnson v. Old
Dominion Security, Case Nos. 86-CAA-3, et seq., Sec.
Dec., May 29, 1991, slip op. at 24, 32; Wells v. Kansas Gas &
Electric Co., Case No. 85-ERA-22, Sec. Dec., Mar. 21, 1990,
slip op. at 17 and n.6, appeal dismissed, No. 91-9526
(10th Cir. Aug. 23, 1991).
SO ORDERED.
LYNN MARTIN
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] The tractor, a 1977 Peterbuilt "cabover," was a "spare"
unit not employed in regular, daily service. T. 323, 341 (Driver
Carlin). It constituted the oldest unit in NMC's Poynette,
Wisconsin, fleet. T. 240 (Repair Agent Wendt).
[2] NMC removed the tractor from service on December 1, 1989,
and disassembled it, scrapping the cab structure, frame
assemblies, and steering columns. Armstrong examined the
steering components in February 1990.
[3] Driver Carlin, who operated Reed's tractor following his
discharge, confirmed that the speedometer was not working.
T. 340, 351-352.
[4] For example, while DOT regulates vehicle interior noise
levels, 49 C.F.R. § 393.94, and vehicle noise emissions, 49
C.F.R. § 325, monitoring would have been required to
determine whether Reed's exposure to noise in the cab and the
noise emanating from the transmission/rear gear box violated
Federal standards.
