DATE: June 15, 1989
CASE NO. 88-STA-20

IN THE MATTER OF

BRUCE KENNEWAY,
   COMPLAINANT,

v.

MATLACK, INC.,
   RESPONDENT.

BEFORE:   THE SECRETARY OF LABOR

   Before me for review is the Recommended Decision and Order (R.D. and O.) of Administrative Law Judge (ALJ) George G. Pierce issued on March 2, 1989, in the captioned case, which arises under the employee protection provision of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1982).¹

   Complainant Bruce Kenneway, an over-the-road driver of commercial motor vehicles, was discharged from his employment by Respondent Matlack, Inc. (Matlack), after refusing to accept a driving assignment which would have caused him to violate the Federal motor carrier Safety Regulation governing maximum driving and on-duty time. The pertinent regulation, set forth at 49 C.F.R. § 395.3 (1987), prohibits drivers from remaining on duty more than 60 hours in any seven-consecutive-day period.² On-duty time includes, e.g., time spent waiting to be dispatched, inspection time, driving time and time spent loading, unloading and repairing vehicles. 49 C.F.R. § 395.2(a). Complainant maintains that his safety-based refusal constitutes activity protected under the STAA and that he was discharged because of his protected refusal, thus rendering the discharge unlawful. Respondent maintains that Complainant's refusal in no manner entered into its discharge decision. Respondent asserts that it discharged Complainant solely because of vulgar and abusive language allegedly directed at Respondent's dispatcher, Elwood Lee Emery, during an August 9, 1987, telephone conversation between Complainant Kenneway and dispatcher Emery. During this conversation, Complainant refused the driving assignment, and Emery discharged him.

   The burdens of proof and production adopted for use in STAA proceedings derive from models articulated and applied in Texas Affairs v. Burdine 450 U.S. 248 (1981), and Mt. Healthy City School District Bd. of Educ. v. Doyle, 429 U.S. 274 (1977). See Roadway Exp.,Inc. v. Brock, 830 F.2d 179, 181 n.6 (11th Cir. 1987). The particular burdens under the STAA are set forth in McGavock v. Elbar. Inc., No. 86-STA-5, Final Decision and Order issued July 9, 1986, slip op. at 10-11. In order to establish a prima facie case, Complainant must show that he engaged in protected conduct, that he was subject to adverse employment action, and that his employer was aware of his protected conduct when it took the adverse action. Complainant also must present evidence sufficient to raise the inference that the protected conduct was the likely reason for the adverse action. As stated above, the ALJ's findings satisfying these components of Complainant's prima facie case, R.D. and O. at 2-4, 6-8, are supported by substantial record evidence, and I adopt them as my own.³ An inference of likely causation is raised by the near simultaneity of the protected conduct and the adverse action, by dispatcher Emery's previous attempts to schedule Complainant for back-to-back runs to Rumford, and by Emery's anger at Complainant's previous refusals.⁴ See Ertel v. Giroux Brothers Transportation, Inc., No. 88-STA-24, Final Decision and Order issued February 16, 1989, slip op. at 25 and nn.14,15.

   After a prima facie case has been established, the burden shifts to the employer "to rebut the presumption of discrimination by producing evidence that [the adverse action was taken] for a legitimate, nondiscriminatory reason." Texas Dept. of Community Affairs v. Burdine, 450 U.S. at 254. The employer "need not persuade

   Complainant Kenneway testified that at approximately 5:00 p.m. on Friday, August 7, Emery called him into the dispatching shack, along with another driver, and asked that they each drive two non-stop, back-to-back runs between Old Town and Rumford, Maine, on Sunday, August 9. T. 23. Emery's plan would have resulted in approximately 24 hours of on-duty time for these drivers. Assuming that the first run followed eight consecutive hours off duty, the drivers would exceed the 15-hour on-duty limitation during the Sunday runs by nine hours, meaning that any driving time logged after approximately hour three of the second run, including the entire second return trip, would place them in violation of 49 C.F.R. § 395.3(a)(2).⁵ In addition, the drivers would total driving time to and from Rumford of between eleven and 14 hours, meaning that they would be driving in violation of 49 C.F.R. § 395.3(a) (1) for a period of up to four hours. Kenneway did not respond to Emery's request. T. 24.

   Complainant Kenneway then departed on his scheduled run to Rumford, returning to Old Town at 3:30 a.m. the following morning, Saturday, August 8. After going off duty at 4:00 a.m., Kenneway slept in his car until 6:45 a.m. before beginning the hour's

drive to his home. T. 29-30, 32.⁶ As he prepared to leave, he encountered Emery. Kenneway testified:

[H]e tried to force me to make another run to Rumford right then and there. Previously, he wanted me to make two runs on Sunday and since he saw me there Saturday morning, he tried to get me to go out again, and I refused to do that, and he swore at me. . . .

T. 30. After this exchange, Kenneway attested to being "pretty shaken and upset. He [Emery] looked violent." T. 32. Kenneway "got in [his] car and drove home." Id. Complainant Kenneway testified: "[Y]ou had to be there in the parking lot to see Lee Emery and how upset he was......." T. 119. Kenneway testified that he felt threatened by Emery's reaction. Id. Complainant returned on duty that afternoon at 3:45 p.m. to make a run to Rumford, returning to Old Town the following morning, Sunday, August 9, and going off duty at 3:30 a.m. He was "relieved" that he did not encounter Emery. T. 33.

   At approximately 4:00 p.m. on Sunday afternoon, August 9, Kenneway telephoned Emery at his residence to obtain his driving assignment for Monday, August 10. Emery directed Kenneway to take a run to Rumford that afternoon, August 9. Kenneway responded that he was too close to the 60-hour ceiling for the seven-day period ending on Sunday to make the run. Emery urged him to start for Rumford later that evening. Kenneway responded that he would still exceed his legal hours.⁷ Complainant Kenneway testified:

And I said--again, "It would be against DOT regulations." He [Emery] said, "Let's forget about that DOT 'bullshit.'" I said, "I can't." He said, "You're fired." I said, "You can't do that." He said, "You're fired" and hung-up.

T. 39. See T. 88, 92. While the telephone conversation became heated on Mr. Emery's part, Kenneway did not recall using foul or abusive language himself. T. 48.

   Dispatcher Emery testified that the telephone conversation was short in duration, lasting perhaps "a minute." T. 209. He did not recall the conversation "word for word," however. T. 192. According to Emery, the conversation "got heated up real good," T. 183, but exclusively on Complainant's end. T. 207. Emery asked Complainant to make the trip to Rumford that afternoon. Complainant refused, stating that he lacked the legal hours. Emery pressed Complainant to start at a later hour. Complainant refused again. Emery explained: "I was trying to get across to him figure out someway to handle it." T. 212. Then, according to Emery, the "conversation got one-sided." T. 219. Complainant was "saying cuss words," T. 190; "[t]here was the 'F' word used frequently," T. 220; "[i]t was just a bunch of hard language, and words, and stuff that didn't make sense to start with." Id. See T. 189-196, 205-212, 217-220.

   In the context of the labor relations cases cited above, two observations are noteworthy. First, for purposes of balancing Complainant Kenneway's work refusal right against Respondent Matlack's right to maintain shop discipline, little if any injury

was sustained by Matlack. For example, the injury to the employer in Crown Central Petroleum was that done by intemperate employee remarks directed toward a supervisor during a grievance meeting in the presence of four other employees.⁸ Here, invective allegedly was employed by Kenneway during a telephone conversation to which only Emery and he were party and which transpired outside of the workplace during off-duty hours. It did not present a situation where Emery was "assailed with abuse on the floor of the plant where he stood as a symbol of the Company's authority. . . ." Crown Central Petroleum, 430 F.2d at 731. See Sullair P.T.O., Inc. v. NLRB, 641 F.2d 500, 503-504

(7th Cir. 1981).

   Second, with regard to assessing indefensibility under the circumstances, the ALJ found that Emery persisted in his attempt to convince Kenneway to make the illegal run to Rumford, that of the two parties to the conversation Emery "more likely" lost his temper when Kenneway refused, and that the conversation "probably" ended acrimoniously because of the refusal. The ALJ did not find that Kenneway actually employed abusive language or necessarily lost his temper, concluding only that, if he did, his conduct was not so opprobrious as to carry him beyond STAA protection.⁹ Any outburst on Kenneway's part was private, spontaneous,¹⁰ and directly provoked by Emery's persistence and temper. See Florida Medical Ctr., 576 F.2d at 673; NLRB v. Mueller Brass Co., 501 F.2d 680, 685-686 (5th Cir. 1974).

   In addressing the question of insubordination, I have considered the decision in Dunham v. Brock, 794 F.2d 1037 (5th Cir. 1986), a case arising under the employee protection provision of the Energy Reorganization Act of 1974, as amended, 42 U.S.C. § 5851 (1982). There, an employee was discharged at the conclusion of an improperly motivated counseling session. During the session, the employee used obscene language, expressed resistance to change, stated that "he did not have to worry about work," and repeatedly invited management to "walk him to the gate." 794 F.2d at 1039. The court stated:

Abusive or profane lanauage coupled with defiant conduct or demeanor justify an employee's discharge on the ground of insubordination. In this case, [the employee's] obscene language and hostile conduct are sufficiently documented and were supported by the ALJ's opportunity to assess the credibility of the witnesses before him. The ALJ's findings . . . indicate that [the employee's] foul language and mere resistance to change in response to improperly motivated counseling, without more, might have led to a different conclusion. When taken with [the employee's] cavalier attitude and his repeated encouragement that (management] show him the door, however, these factors support a reasonable inference of insubordination sufficient to justify a discharge.

794 F.2d at 1041 (citations omitted, emphasis added).

   Dunham differs significantly from the instant circumstances.

¹Section 405(b) of the STAA provides in relevant part:

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 . . . .

49 U.S.C. app. § 2305(b) (1982).

²The regulation states: "[N]o motor carrier shall permit or require any driver used by it to be on duty, nor shall any such driver be on duty, more than 60 hours in any 7 consecutive days....... " It also I provides that "no motor carrier shall permit or require any driver used by it to drive nor shall any such driver drive: (1) More than 10 hours following 8 consecutive hours off duty; or (2) For any period after having been on duty 15 hours following 8 consecutive hours off duty."

³In particular, I adopt the ALJ's findings that Complainant had 2.25 hours remaining in the 60-hour period when he was asked to make the trip on August 9, that had Complainant begun the trip at 9:45 p.m. on August 9 and driven for 2.25 hours, he would have picked up only an additional 5.50 hours on August 10, and that with a total of 7.75 hours, Complainant could not have completed the round trip run within the 60-hour limitation. R.D. and O. at 6. I also adopt the ALJ's findings that Respondent's trucks were not equipped with sleeper berths, that had Complainant pulled over to the side of the road and rested in the vehicle, he would have continued to log on-duty hours in violation of Federal regulations, and that Respondent had not discussed laying over or sleeping accommodations with Complainant, who reasonably may have understood that he would be going against company policy to stop at a motel. R.D. and O. at 7.

⁴See the factual summary at pp. 7-9, infra, of the exchanges on August 7 and 8, between Complainant Kenneway and dispatcher Emery about Kenneway's making extra runs. Emery testified, and it is undisputed, that Matlack was under pressure to move inventory from Old Town to Rumford, a situation exacerbated by the fact that one of the drivers was on vacation. Hearing Transcript (T.) 188, 204, 216-218. See R.D. and O. at 7.

⁵Actual driving time one-way between Old Town and Rumford ranged between 2.75 and 3.50 hours. Exh. J-2. "On a good day," total round trip on-duty time involved in driving, loading, unloading, and cleaning the trailers used to transport highly caustic materials was approximately 11.25 hours. T. 24-27, 167.

⁶When asked whether he normally slept in his car upon returning from a trip, Complainant testified: "Only if I'm tired and I don't think it is safe for me to drive." T. 112.

⁷As the ALJ found, the 7.75 additional hours that Complainant would have acquired at 12:01 a.m. on August 10 were insufficient to permit him to complete the trip. R.D. and O. at 6-7. If Complainant had begun the trip on August 9, expending the 2.25 hours available through midnight on that date, the number of hours available for use on August 10 would have been reduced to 5.50 hours.

⁸In Crown Central Petroleum, the balance was held not to have been upset and the employees were protected. In contrast, in Boaz Spinning Co. v. NLRB, 395 F.2d 512 (5th Cir. 1968), where the balance was held upset, all plant employees were present at a pre-election meeting where intemperate remarks were made by an employee and where the employer legitimately had determined that competing views could not be aired. Accordingly, Boaz represented widely-publicized, direct defiance to management's authority as well as a refusal to follow reasonable instructions. other avenues were established for the employee to disseminate his pro-Union arguments. Accord NLRB v. Truck Drivers, Oil Drivers, Etc., 630 F.2d 505, 508 (7th Cir. 1980); NLRB v. Prescott Industrial Products Co., 500 F.2d 6, 8-11 (8th Cir. 1974).

⁹Contrary to Respondent's suggestion, T. 282, Kenneway's alleged outburst may not be considered in a vacuum, somehow separated from the events leading up to it. See NLRB v. Thor Power Tool Co., 351 F.2d 584, 586-587 (7th Cir. 1965). It issued in reaction to Emery's persistent urging that Kenneway find a way to make the trip. T. 212. As the ALJ found, R.D. and O. at 7-8, Emery more likely lost his temper or both parties lost their tempers. Derogatory remarks uttered in similar circumstances were held to furnish "the excuse rather than the reason for [management's] retaliatory action." Thor Power Tool Co., 351 F.2d at 587 (remark may have "triggered" discharge but management's "extreme displeasure" at protected conduct evident during escalating confrontation).

¹⁰The fact that Kenneway consulted his hours log before telephoning Emery suggests that he may have anticipated resistance, especially in light of Emery's previous pressuring to make back-to-back runs. Any possible anticipation on Kenneway's part, however, does not mean that an intemperate outburst during the telephone conversation was pre-meditated.