DATE: January 19, 1993
CASE NO. 92-STA-0033
IN THE MATTER OF
ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH,
PROSECUTING PARTY,
and
SCOTT ZESSIN,
COMPLAINANT,
v.
ASAP EXPRESS, INC.,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER
Before me for review is the October 15, 1992, [Recommended]
Decision and Order of the Administrative Law Judge (ALJ) in this
case arising under Section 405, the employee protection
provision, of the Surface Transportation Assistance Act of 1982
(STAA), 49 U.S.C. app. § 2305 (1988). The ALJ found that
Respondent violated the STAA when it discharged Complainant for a
safety based refusal to drive a vehicle. Respondent filed a
brief before me, as permitted by 29 C.F.R. § 1978.109(c),
and the Assistant Secretary submitted a letter urging affirmance
of the ALJ's decision.
I. Facts
Complainant was the driver of a straight truck used in
Respondent's package delivery business. Complainant regularly
made an evening run taking packages from Lincoln to Omaha,
Nebraska, and returning with packages destined for Lincoln. On
April 12-13, 1992, a fire damaged Respondent's Lincoln warehouse.
JX 1, par. 4(a); T. 106. The truck Complainant was assigned to
[PAGE 2]
drive, which was parked in the warehouse at the time of the fire,
sustained damage to the windshield and two outside rear view
mirrors. JX 1, par. 4(a). The casings holding the mirrors were
warped and the mirrors and windshield were covered with a deposit
of greasy soot. T. 13.
Lincoln warehouse manager Todd Olson attempted to clean the
windshield, windows, and mirrors of the truck with water and a
cleaner. T. 141. Olson used the truck to make local deliveries
for an hour and a half on the afternoon of April 13. Olson
described the rear view mirrors as wobbly, but said he could see
out of them. T. 142-143.
Complainant reported to work at the Lincoln warehouse in the
evening of April 13, inspected the truck, and informed
Respondent's President, Noland Mullins, that the mirrors and
windshield were damaged. JX 1 par. 4(b); T. 11-14. Mullins did
not respond, but rather turned and walked away. T. 14.
Complainant unsuccessfully attempted to adjust the rear view
mirrors and to remove the sooty film from the windshield.
Id. Complainant loaded the truck and departed on his run.
JX 1 par. 4(b).
Complainant testified that he could not drive fast or use
the passing lane on the interstate highway because he could not
see the lights of vehicles when he used the rear view mirrors.
T. 42. He said that the rear view mirrors were vibrating and
flopping. T. 43. When Complainant pulled into a highway weigh
station, he asked a Nebraska Highway Patrol carrier enforcement
officer to examine the truck. JX 1 par. 4(c); T. 18-19. The
officer found that the rear view mirrors were so coated that it
would have been very hard to see behind the truck as required for
safe driving. T. 88. He also opined that there was a 50 percent
blockage of vision for night driving when looking though the
windshield. T. 89. Recognizing that under Nebraska law, he
could issue a citation only to the driver and not to the company
that owned the truck, the officer declined to issue one. T. 92-
93. The officer informed Complainant that he (the officer) would
not drive the truck in that condition. T. 90. But the officer
testified he did not take the truck out of service because, in
his opinion, the condition of the truck did not violate any
federal motor vehicle safety regulations. T. 90, 102.
Complainant drove to his destination, Respondent's Omaha
warehouse. JX 1 par. 4(c); T. 19. Complainant telephoned to
inform Mullins that since the truck was not safe, Complainant
would not drive it back to Lincoln. JX 1 par. 4(d); T. 21-22.
Complainant suggested that Mullins rent a truck for the return
trip or load the packages for Lincoln into another of
Respondent's trucks that went past Lincoln on its route to Grand
Island. T. 22-23. Mullins did not respond except to ask to
[PAGE 3]
speak with another employee at the Omaha warehouse. T. 22.
Mullins telephoned Olson, explained that Complainant refused to
drive the truck, said that Complainant was insubordinate, and
told Olson "to take care of it." T. 123.
Approximately half an hour later, Olson, who was
Complainant's supervisor, telephoned Complainant at the
warehouse. JX 1 par. 4(e); T. 24. Complainant testified that
Olson fired him, T. 24, and Complainant informed another driver
that he had just been fired. Deposition of Richard Carpenter at
6. Complainant called a friend to pick him up and take him back
to Lincoln. T. 25-27.
Olson denied firing Complainant, and stated that he told
Complainant to wait at the Omaha warehouse for Olson to arrive.
T. 146. Olson drove from Lincoln with another employee to pick
up the truck. Id. When Olson arrived at the Omaha
warehouse, Complainant was gone. T. 149-150. Olson described
the truck's windshield and window as having a "tinge of smoke."
T. 148. While driving the truck back to Lincoln that night,
Olson found the mirrors wobbly but said that he could use them to
see lights behind him. T. 149. Olson said that he was able to
pass other vehicles and, using the rear view mirrors, to back up
the truck to the loading dock at the Lincoln warehouse.
Id.
In a statement to the Nebraska Unemployment Insurance
Division, Respondent's Administration Manager indicated that
Complainant was "immediately terminated" from employment after he
telephoned Mullins on the evening of April 13, 1992. CX 6;
Deposition of Victoria Payton at 30.
Respondent hired a company to clean and repair the truck the
next day. T. 163. June Swartz, who cleaned the inside of the
cab, described it as "a mess." T. 165. She found that bleach
and water did not remove the film on the inside of the windshield
and windows, and succeeded in removing the film by using a
whitewall tire cleaner followed by a window cleaner. T. 166.
Others cleaned the outside of the truck and replaced the rear
view mirrors. T. 166; CX 7. The bill for the cleaning and
repair job was $338.65. CX-7.
II. Analysis
Section 405(b) of the STAA provides that:
No person shall discharge . . . an employee
. . . 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, or because of the
employee's reasonable apprehension of serious
injury to himself or the public due to the
[PAGE 4]
unsafe condition of such equipment. . . .
49 U.S.C. app. § 2305(b). The parties stipulated that
Respondent, a commercial motor carrier, is a person as defined in
the STAA, that Complainant is an employee covered by the STAA,
and that Complainant timely filed this complaint. JX 1. par.
1 - 3.
Under the burden of proof in proceedings under the employee
protection provision, in order to establish a prima facie case,
the complainant must show by a preponderance of the evidence that
he engaged in protected activity, that he was subjected to
adverse action, and that Respondent was aware of the protected
activity when it took the adverse action. Auman v. Inter
Coastal Trucking, Case No. 91-STA-00032, Final Dec. and
Order, July 24, 1992, slip op. at 2 (STAA case); Dartey v.
Zack Co. of Chicago, Case No. 82-ERA-2, Dec. and Final Ord.,
Apr. 25, 1983, slip op. at 7-9 (case under analogous provision of
Energy Reorganization Act of 1974, 42 U.S.C. § 5851 (1988)).
Complainant must also present evidence sufficient to raise the
inference that the protected activity was the likely reason for
the adverse action.
Respondent contends that Complainant did not engage in
protected activities. Under STAA section 405(b), covered
employees lawfully may refuse to drive when operation of the
vehicle would violate Federal rules or regulations applicable to
commercial vehicle safety ("when clause") or when they have a
reasonable apprehension of danger to themselves or the public
because of unsafe driving conditions and unsuccessfully sought
correction of the conditions ("because clause"). 49 U.S.C.
§ 2305(b); Roadway Express, Inc. v. Dole, 929 F.2d
1060, 1064 (5th Cir. 1991).
After citing the Federal regulations governing
windshields [1] and rear view mirrors, [2] the ALJ found a
violation of the "when clause":
The view through the windshield was
significantly obscured, use of the rear view
mirrors was significantly impaired because of
soot, cracking, warping of the plastic frame,
and loosening of the fittings that attached
them to the truck body, and driving of the
truck in question on the night in question by
[Complainant] constituted a violation of
those regulations, and, thus, of the Surface
Transportation Assistance Act.
[PAGE 5]
R. D. and O. at 11. The ALJ did not make any finding under the
"because" clause of Section 405(b).
Respondent disputes the ALJ's authority in this case to
construe Federal motor carrier safety regulations because no
evidence was introduced to show that the truck was cited for a
Federal safety violation. According to Respondent, absent such a
showing, the ALJ was compelled to find that the truck was not in
violation of any safety violation. Respondent's Brief in
Opposition to Decision and Order of ALJ at 4.
It is well established that both the Secretary and
Department of Labor 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., Case No. 86-STA-18, Dec. and Order of Remand,
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). Seealso,
Robinson v. Duff Truck Line, Inc., Case No. 86-STA-3,
Final Dec. and Order, Mar. 6, 1987, slip op. at 9-10 (interprets
Federal motor carrier safety regulation in absence of Department
of Transportation or court interpretation), aff'dsubnom. Duff Truck Line, Inc. v. Brock, No.
87-3324 (6th Cir. May 4, 1988); Spinner v. Yellow Freight
System, Inc., Case No. 90-STA-17, Dec. and Order, May 6,
1992, slip op. at 17-18 (finds violation of safety regulation
notwithstanding Department of Transportation Chief Counsel
opinion letter that no violation occurred), appealdocketed, No. 92-4074 (2d Cir. May 12, 1992).
In this case, the carrier enforcement officer was equivocal,
at best, about whether the truck's condition violated any Federal
safety regulations, as the ALJ noted. R. D. and O. at 5-7. In
finding a violation, the ALJ relied heavily upon the officer's
testimony that the rear view mirrors were in a condition such
that "it would have been very hard to see back for a very far
distance for safe driving," T. 88, and that there was "a 50
percent blockage [through the windshield] of true vision for
driving at night." T. 89. The officer explained that if he had
issued a citation concerning the condition of the vehicle, it
could only have been against Complainant, rather than the company
that owned the truck. T. 92-93. I agree with the ALJ that the
officer's testimony demonstrated his unwillingness to admit that
the vehicle violated a safety regulation since he chose not to
issue a citation taking the vehicle out of service. R. D. and O.
at 7. Thus, there was ample basis in the record 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
[PAGE 6]
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).
In addition, an employee who has a reasonable apprehension
of serious injury due to the unsafe condition of the equipment
also comes within the statute's protection under the "because
clause." The test for such protection is stated in Section
405(b):
The 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.
49 U.S.C. app. § 2305(b).
Citing Olson's ability to drive the truck both before and
after Complainant's trip in it, Respondent contends that a
reasonable person would not conclude that there was danger of an
accident or serious injury. The evidence, however, demonstrates
otherwise. The carrier enforcement officer said that for safety
reasons, he personally would not have driven the truck in its
damaged condition. T. 89-90. At night, the officer looked
through the windshield toward the bright lights of the weigh
station and found a 50 percent reduction in true vision. I find
that the officer's observation more reasonably approximated the
condition of the windshield when Complainant drove at night, than
did the photographs taken in daylight of the outside of the
truck, which Respondent maintains demonstrate that the windshield
was clean. Respondent's Brief at 7-8. In addition, the person
who cleaned the truck the next day had to use a heavy cleaner to
get the windshield clean. The ALJ logically credited the
testimony of two independent witnesses, the officer and the truck
cleaner, over that of Respondent's employee Olson, who had reason
to agree with his employer that the truck's condition was not
unsafe. R. D. and O. at 8-9.
There is a direct contradiction in the testimony concerning
the rear view mirrors. Complainant said that they were so wobbly
and dirty that he could not use them. Olson testified, however,
that when he looked in the mirrors he could see lights of
vehicles behind the truck. A telling fact is that the company
hired to clean and repair the truck replaced the mirrors. If the
[PAGE 7]
mirrors were operable or sufficiently adjustable, the repairer
presumably would have made the necessary adjustment rather than
replace them. On the basis of the evidence concerning the
windshield and the mirrors, I find that a reasonable person would
have deemed the truck's condition to be so unsafe as to risk an
accident or serious injury.
Another requirement in cases under the "because clause" is
that an employee seek correction of the unsafe condition from his
employer before refusing work. 49 U.S.C. app. §2305(b);
Robinson, slip op. at 21. By walking away when
Complainant raised the issue of defects in the mirrors and
windshield, Mullins effectively prevented Complainant from
seeking correction of the unsafe condition of the truck prior to
departure. Complainant attempted self correction by cleaning the
windshield several times with materials at hand and by trying to
adjust the mirrors, but was unsuccessful. Respondent's
suggestion that Complainant did not try hard enough to clean the
soot with materials available at the warehouse, Brief at 10, is
unconvincing because Respondent hired an outside company to clean
the truck the next day. If the job were easy and the materials
were at hand, it would be illogical to hire an outside cleaner.
When seeking correction is not feasible, the requirement
does not apply. Green v. Creech Brothers Trucking, Case
No. 92-STA-4, Dec. and Order, Dec. 9, 1992, slip op. at 13 n.7.
In view of the time sensitive nature of the package delivery
business, it was not feasible for Complainant to seek correction
of the defects after he arrived in Omaha late in the evening and
was due to return immediately with packages for Lincoln.
Therefore, it was reasonable for Complainant to shift his focus
from correction of defects to substitution of a safe vehicle for
the return trip, by suggesting to Mullins that the company rent a
truck or transport the Lincoln packages on the Grand Island
truck. I find that Complainant sufficiently sought correction of
the defects under the circumstances.
I therefore find that Complainant established by a
preponderance of the evidence that he engaged in protected
activities under both the "when" and the "because" clauses of
Section 405(b).
The next element of a prima facie case is establishing that
the employer took adverse action against the employee.
Respondent contends that Complainant was not fired, but rather
voluntarily quit his job. The evidence of discharge is
overwhelming, however. An employee working out of Respondent's
Kansas City warehouse testified that on the night of April 13,
Complainant said he had just been fired. Deposition of Richard
Carpenter at 6. Respondent's employee Victoria Payton informed
the state unemployment insurance division that Complainant was
[PAGE 8]
fired immediately after he spoke with Mullins by telephone and
refused to drive the truck back to Lincoln. Payton testified
that she learned of Complainant's firing from Mullins. Mullins'
statement that he incorrectly assumed that Olson had fired
Complainant, T. 122-123, is unconvincing. As the ALJ pointed
out, R.D. and O. at 10-11, if Olson believed the truck to be in
satisfactory condition, as he so testified, then Complainant's
refusal to drive was a ground for dismissal. In addition,
Mullins testified that he informed Olson that Complainant was "as
insubordinate as you can get" and told Olson "to take care of
it." T. 123. Insubordination is also a ground for discharge.
On the basis of the evidence, I find that Respondent discharged
Complainant during the evening of April 13-14 and clearly knew of
his refusal to drive on safety grounds when it did so.
The final element of a prima facie case is raising an
inference that the employee's protected activities motivated the
adverse action. Complainant raised the inference because his
discharge immediately followed his protected activity.
Bergeron v. Aulenback Transportation, Inc., Case No. 91-
STA-38, Final Dec. and Order, June 4, 1992, slip op. at 3;
Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989).
Complainant therefore established a prima facie case of
retaliatory discharge.
A respondent may rebut a prima facie showing by producing
evidence that the adverse action was motivated by a legitimate,
nondiscriminatory reason. Bergeron, slip op. at 2.
Respondent did not introduce any evidence of a legitimate reason
for the discharge. In view of Respondent's failure to rebut
Complainant's prima facie case, I find that Complainant proved
that Respondent discharged him for engaging in protected
activities and thereby violated the STAA.
ORDER
1. Respondent shall offer Complainant reinstatement to his
former or a comparable position and tenure.
2. Respondent shall pay Complainant back pay from April 14,
1992, until the date of reinstatement (or declination of offer),
less interim earnings, with interest thereon calculated pursuant
to 26 U.S.C. § 6621 (1988).
The ALJ afforded Complainant's counsel the opportunity to
submit an application for payment of attorney fees, and counsel
timely submitted an application. It is anticipated that the
ALJ's recommended decision on the fee application will be
forthcoming.
SO ORDERED.
[PAGE 9]
LYNN MARTIN
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1]
The Federal safety regulation governing windshields,
49 C.F.R. § 393.60(b) (1991), provides:
Every motor vehicle windshield shall be free
of discoloration or other damage in that
portion thereof extending upward from the
height of the topmost portion of the steering
wheel, but not including a 2 inch border at
the top and a 1 inch border at each side of
the windshield or each panel thereof, except
that discoloration and damage as follows are
allowable: (1) coloring or tinting applied in
manufacture, for reduction of glare; (2) any
crack not over 1/4-inch wide, if not
intersected by any other crack; (3) any
damaged area which can be covered by a disc
3/4-inch in diameter, if not closer than 3
inches to any other such damaged area.
[2]
The regulation governing rear view mirrors, 49 C.F.R.
§ 393.80(a), provides:
Every bus, truck, and truck tractor shall be
equipped with two rear-vision mirrors, one at
each side, firmly attached to the outside of
the motor vehicle, and so located as to
reflect to the driver a view of the highway
to the rear, along both sides of the
vehicle. . . .
