FINAL DECISION AND ORDER
The Secretary remanded this case under the employee protection
provision of the Surface Transportation Assistance Act (STAA), 49 U.S.C. app. § 2305
(1988), to the ALJ to make a finding whether Complainant Ricky Brown had a "reasonable
apprehension of serious injury to himself or the public," 49 U.S.C. §2305(b), when
he
refused to transport and pump out a drum of hazardous material. The Secretary held that refusal
to drive based on a reasonable apprehension that the task of pumping the hazardous material,
which was one of Brown's duties as a driver, would cause impairment to Brown's ability safely to
operate a motor vehicle was a protected activity under the STAA. The ALJ found on remand
that
Brown's refusal of the assignment was not based on a reasonable apprehension of serious injury
and recommended that this complaint be dismissed. Recommended Decision and Order on
Remand at 11.
The facts in this case are set forth in the Secretary's Decision and
Remand Order, and in the ALJ's first Recommended Decision at 4-14. Briefly, Brown refused an
assignment to transport and pump out a drum of hazardous material on March 30, 1994 because
he had suffered shortness of breath and dizziness when he partially pumped out the same drum
on
February 28, 1994. On that occasion, Brown had disconnected the hose from the transport drum
to the base container before he had completely pumped out the hazardous material because he did
not have enough nitrogen to pump out the drum completely. Brown was exposed to the fumes
from a small spill of the hazardous material which flowed out of the hose. T (Transcript of
hearing) 506-511.
[Page 2] We do not question Brown's good faith
belief that he could again suffer exposure to the hazardous substance if he followed Wilson
Trucking's order to transport and pump out the drum. But the STAA requires that
[t]he unsafe condition causing the employee's apprehension of injury must be
of such a 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 other words, the employee's belief must be objectively reasonable, not
simply subjectively made in good faith. Yellow Freight Systems, Inc. v. Reich , 38 F.3d
76, 82 (2d Cir. 1994). In addition, the Act requires that "[i]n 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."
We agree with the ALJ that Brown did not have a reasonable
apprehension of serious injury when he refused his assignment. Brown asserts he should have
been trained in the pumping procedure by the company shipping the hazardous material before
being directed to make this delivery. For purposes of assessing the objective reasonableness of
Brown's apprehension of injury, we find this irrelevant. He had been fully trained by another
Wilson Trucking employee and had substantial experience with this procedure, having made
over
190 deliveries of chemicals requiring pumping from the transport drum to a base unit in four
years
as a Wilson Trucking employee. T. 1179. Brown never had any problems with any other
deliveries and pumping of hazardous material. T. 576. More significantly, Brown admitted that
he caused the spill by failing to follow proper procedures. He knew there was not enough
nitrogen in the tank to pump all the hazardous material out of the drum, but he started the
pumping process anyway. T.506. When the nitrogen ran out, Brown called Wilson trucking and
spoke to the man who had trained him in the pumping procedure, telling him he would try to find
another nitrogen tank or to lift up the drum to feed the material by gravity, but he said nothing
about disconnecting the hose. T. 509-510; 512. He knew there would be a spill when he
disconnected the hose because there was liquid in it. T. 510. Brown admitted he caused his
injury by disconnecting the hose and causing a spill, T. 514, and that if he had simply obtained
another tank of nitrogen he could have completed the pumping without a spill. T. 515-16. We
conclude that an employee with similar training and experience could not have reasonably
apprehended being injured by the work assigned to Brown in these circumstances.2 Brown was not protected by the STAA
when he refused his work assignment and Wilson Trucking did not violate the Act when it
discharged him for that infraction.
Accordingly, the complaint in this case is DISMISSED .
SO ORDERED.
DAVID A. O'BRIEN
Chair
KARL J. SANDSTROM
Member
JOYCE D. MILLER
Alternate
Member
[ENDNOTES]
1 On April 17, 1996, a Secretary's
Order
was signed delegating jurisdiction to issue final agency decisions under this statute and the
implementing regulations (29 C.F.R. part 19780 to the newly created Administrative Review
Board.
Secretary's Order 2-96 (Apr.17, 1996), Fed. Reg. 19978 (May 3, 1996). Secretary's Order 2-96
contains a comprehensive list of the statutes, executive orders, and regulations under which the
Administrative Review Board now issues final agency decisions. Final Procedural revisions to
the
regulations (61 Fed. Reg. 19982) implementing this reorganization were also published on that
date.
The Board has reviewed the entire record in this case, including the Secretary's Decision and
Remand
Order.
2 Because Brown did not have a
reasonable apprehension of injury, it is not necessary to decide whether he met the final
requirement of
49 U.S.C. § 2305(b), seeking correction of the unsafe condition, or whether Wilson
Trucking
fulfilled its obligation to make such a correction. We note that the terminal manager discussed
the
February 28 incident with Brown a few days later and told him "[the] next time, just call in
and
we can get you another nitrogen tank . . . ." T.733.