DATE: November 19, 1993
CASE NO. 93-STA-2
IN THE MATTER OF
JOHN A. THOM,
COMPLAINANT,
v.
YELLOW FREIGHT SYSTEM, INC.,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
Before me for review is the Recommended Decision and Order
(R.D. and O.) issued by the Administrative Law Judge (ALJ) in the
captioned case, which arises under Section 405 (employee
protection provision) of the Surface Transportation Assistant Act
of 1982 (STAA), 49 U.S.C. app. § 2305 (1988).
Complainant John Thom, an experienced over-the-road operator
of commercial motor vehicles, contends that he was discharged by
Respondent Yellow Freight System, Inc. (Yellow) because he
engaged in a work refusal which was protected under STAA Section
405. [1] Yellow concedes that Thom's work refusal precipitated
his discharge, but argues that it was not protected activity.
The ALJ has recommended that Thom should prevail on his complaint
of unlawful discrimination. I agree with the ALJ under the
analysis set forth below.
STAA Section 405(b) [2] protects an employee who refuses to
operate a commercial motor vehicle "when" such operation would
violate a federal motor vehicle standard or "because" he
reasonably apprehends serious injury due to the unsafe condition
of equipment. The second ground for refusal ("because" clause)
[PAGE 2]
carries the further requirement found in the second sentence of
the subsection that the unsafe condition "causing the employee's
apprehension of injury" must be such that a reasonable person,
under the circumstances, would perceive a bona fide hazard.
Section 405(b) further stipulates that the employee must have
sought from his employer, and have been unable to obtain,
correction of the unsafe condition. These second and third
sentences of Section 405(b) limit only the second ground for
refusal, i.e., the "reasonable apprehension" ground contained in
the "because" clause of the first sentence. [3] Duff Truck
Line, Inc. v. Brock, No. 87-3324 (6th Cir. May 4, 1988),
aff'gRobinson v. Duff Truck Line, Inc., Case No.
86-STA-3, Sec. Dec., Mar. 6, 1987.
At 7:30 p.m. on March 30, 1992, Thom reported to work at
Yellow's Buffalo, New York, terminal. His initial assignment
involved driving a tractor and a single trailer to Batavia, New
York, and returning to Buffalo with the same tractor and two
trailers. Thom then was "slipseated" into a different tractor
and directed to haul two 28-foot "pup" trailers to Rochester, New
York. After driving several miles on Interstate 290, Thom
realized that his tractor possessed "very little power" and was
not capable of maintaining speed on inclines, which suggested a
fuel problem, e.g., "a clogged fuel filter or . . . clogged . . .
injectors . . . ." Hearing Transcript (T.) 26. Thom testified
that while he reached a downhill speed of 50 mph, he slowed to 35
mph on slight inclines, and he estimated that he could maintain a
speed of only 45 mph on the straightaway. T. 20-21, 61, 67-68,
302-303. Thom anticipated reduced speeds on the Interstate 90
portion of the route to Rochester because of its more pronounced
hills.
Thom pulled his unit into the empty parking lot of a K-Mart
which had closed for the evening, telephoned Yellow's Buffalo
dispatch, and requested that they arrange for a vendor to service
the tractor. T. 22-24. Linehaul Coordinator Michael Pross
refused Thom's request, directing him to continue to Rochester.
When Thom insisted that the tractor first be inspected, Pross
relieved him of duty. Thom thereafter was discharged.
The ALJ found that Thom engaged in protected activity under
the "because" clause of Section 405(b). This finding is
supported by substantial evidence, and I adopt it. 29 C.F.R.
§ 1978.109(c)(3)(1992).
The ALJ credited Thom's testimony that the tractor would not
maintain speed. Thom's account is supported by the testimony of
another driver who had operated the tractor previously, T. 96-99,
by the testimony of a truck mechanic, T. 127-135, and by the
statement of Brad Mergenhagen, the driver who replaced Thom and
completed the Rochester run. Complainant Exh. 7. I also note
[PAGE 3]
that Mergenhagen's driving time of two hours exceeded the one and
one half-hour norm for the trip. Respondent Exh. 4. I have
considered Yellow's evidence that nothing was found to be wrong
with the tractor, T. 182, Respondent Exhs. 7, 9, and I accord it
little weight. See R.D. and O. at 11 (second full
paragraph (par.)). Mechanic Chuck Pastor, who checked the
tractor, did not testify at the hearing, and the record is silent
as to any adjustments he may have made. The record also
establishes that inadequate power is not an uncommon problem with
Yellow's tractors and that it can be remedied. T. 76-80 (Driver
Delmonte), T. 88-93 (Driver Newton). [4]
The ALJ found that the tractor's inability to maintain speed
created a hazard on an interstate highway, where the flow of
traffic was 55-65 mph and where "ruts" had been imposed during
highway resurfacing, and that Thom reasonably apprehended serious
injury due to the unsafe condition. R.D. and O. at 7-8. The
record fully supports this finding. Numerous drivers testified
that the condition could result in their being rear-ended, losing
control, or "throwing" a trailer. [5] T. 26, 53-55, 65-67, 78-
81, 90-91, 98-99.
I also agree with the ALJ, R.D. and O. at 9-11, that the
"because" clause of Section 405(b) should be construed broadly to
apply to conditions rendering operation of a commercial motor
vehicle hazardous. Roadway Exp., Inc. v. Dole, 929 F.2d
1060, 1062-1063 (5th Cir. 1991) (hazardous ice storm);
Robinson v. Duff Truck Line, Inc., Case No. 86-STA-3, Sec.
Dec., Mar. 6, 1987, slip op. at 18-22, aff'd on other grounds
sub num. Duff Truck Line, Inc. v. Brock, No. 87-3324 (6th
Cir. May 4, 1988) (adverse road conditions; tractor difficult to
handle in ice and snow due to its type of tires and the fact that
the front end tended to rise); Palmer v. Western Truck
Manpower, Case No. 85-STA-6, Sec. Remand Order, Jan. 16,
1987, slip op. at 6-8, aff'd, No. 92-70231 (8th Cir. Sept.
27, 1993) (improperly loaded but otherwise sound tractor
trailer). [6] Under these cases, the Secretary expressly has
rejected the argument that Section 405(b) is limited to
situations where the equipment is mechanically defective. [7]
Whether a condition is sufficiently hazardous requires the
exercise of judgment and ordinarily is made on the basis of
information available at the time of the refusal. Duff Truck
Line, Inc. v. Brock, slip op. at 5. Here, Yellow has
presented no evidence showing that Thom's tractor was capable of
maintaining speed on the evening March 30. In fact, Driver
Mergenhagen's statement supports a contrary finding, and although
Mergenhagen apparently completed Thom's assignment without
incident, "successful completion of a mission, in the absence of
other evidence, does not necessarily prove that the mission was
safe." Id., slip op. at 7.
[PAGE 4]
Finally, I adopt the ALJ's finding that Thom sought from
Yellow and was unable to obtain correction of the condition
either by vendor service or being given a substitute tractor.
R.D. and O. at 13 (first full par.). Because I have found that
Thom was protected under the "because" clause of Section 405(b),
I do not reach the additional issue of whether Thom was protected
under its "when" clause, and I do not adopt that portion of the
ALJ's decision. R.D. and O. at 13-14. I also decline to defer
to the outcome of the grievance decision for the reasons advanced
by the ALJ. R.D. and O. at 14-15.
ORDER
Respondent, Yellow Freight System, Inc., is ordered to offer
Complainant, John A. Thom, reinstatement to his former or
comparable employment; pay Complainant back wages and interest;
reimburse Complainant for lost benefits, including but not
limited to health insurance, pension and retirement
contributions; pay Complainant compensatory damages or medical
expenses which otherwise would have been covered by employer-
provided medical insurance; and pay Complainant's attorney,
Kathleen E. O'Hara, attorney fees and expenses in the amount of
$5,950.25.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] To prevail on a STAA whistleblower complaint, a complainant
must establish that the respondent took adverse employment action
against him because he engaged in an activity protected under
Section 405. A complainant must show that it was likely that the
adverse action was motivated by a protected activity. Roadway
Exp., Inc. v. Brock, 830 F.2d 179, 181 n.6 (11th Cir. 1987);
Guttman v. Passaic Valley Sewerage Comm'rs, Case No. 85-
WPC-2, Sec. Dec., Mar. 13, 1992, slip op. at 9, aff'd, No.
92-3261 (3d Cir. Apr. 16, 1993). The respondent may rebut such a
showing by producing evidence that the adverse action was
motivated by a legitimate, nondiscriminatory reason. The
complainant then must prove that the proffered reason was not the
true reason for the adverse action. St. Mary's Honor Center
v. Hicks, 125 L. Ed. 2d 407, 416 (1993).
[2] Section 405(b) provides:
No person shall discharge, discipline, or in any manner
discriminate against an employee with respect to the
employee's compensation, terms, conditions, or
privileges of employment 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 unsafe condition of such equipment. 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. In order
to qualify for protection under this subsection, the
employee must have sought from his employer, and have
been unable to obtain, correction of the unsafe
condition.
49 U.S.C. app. § 2305(b) (emphasis added).
[3] The language of the third sentence ties protection to an
attempt to obtain correction of the unsafe condition
referenced in the "because" clause and the second sentence.
[4] For example, Newton testified that in January 1992, he
experienced lack of power in his tractor, achieving speeds of
only 35-45 mph. T. 89-91. When he drove the same tractor
several months later, "[i]t ran like a bear . . . it took [the
speedometer] right up to sixty and held it there." T. 91-92.
[5] Connected by a pin to the tractor and at midpoint by a
dolly, sets of twin trailers or "pups" tend to fishtail or
"snake" and thus are referred to as wiggle wagons or wigwags. T.
55, 246-247. Tension between trailers is reduced at lower
speeds, and driving over rutted roadway causes pronounced
fishtailing and creates a hazard to passing vehicles. Thom
testified: "The speed limit is fifty-five. The state police
give you sixty-five and everybody is happy . . . so I was afraid
[of] me doing like thirty-five, forty-five down the road and if I
lose control of [a trailer] and somebody is going by me they're
dead meat." T. 55. Thom also was concerned about pulling his
unit off of the highway in the event of fuel failure. T. 53, 54,
66-67.
[6] Cf.Consolidation Coal v. Federal Mine Safety &
Health, 795 F.2d 364 (4th Cir. 1986) (work refusal protected
where miner questioned safety of procedure utilizing locomotive
and "trailing motor" to brake runaway "trip" of coal haulage
cars).
[7] As the Secretary stated in Palmer, slip op. at 19,
"the section by section analysis of [Section 405(b)], prepared by
the Senate Commerce Committee which reported out the legislation,
noted that 'it is intended to assure that employees are not
forced to drive unsafe vehicles or commit unsafe acts.' 128
Cong. Rec. 29192 (1982)."
