Date: January 31, 1996
CASE NO: 96-STA-4
In the Matter of:
RON WARD,
Complainant
vs.
YELLOW FREIGHT SYSTEMS,
Respondent
APPEARANCES:
Ron Ward, Pro Se
Ronald E. Sandhaus, Esq.,
Assistant Secretary
Yellow Freight Systems, Inc.
Before: Steven E. Halpern, Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This is a proceeding under the employee protection
(whistleblower) provision of the Surface Transportation
Assistance Act of 1982, as amended, 49 U.S.C. § 2301 et
seq. ("the Act"), which, in essence, prohibits covered
employers from discriminating against employ because they have
engaged in certain protected activities. The instant proceeding
was initiated by a complaint filed on or about June 24, 1995,
with the Occupational Safety and Health Administration, U.S.
Department of Labor, by Ron Ward ("complainant"), against Yellow
Freight Systems, Inc. ("Yellow Freight" or "respondent"),
alleging discriminatory discharge under section 2305 of the Act.
Following an investigation, the Regional Administrator issued a
determination in which it was found that complainant's discharge
had not violated section 2305. On October 24, 1995, complainant
filed an objection to said determination and requested a hearing,
which took place on November 13, 1995, in San Francisco
California. The transcript of the hearing was received on
December 13, 1995.
Findings of Fact and Conclusions of Law
It is undisputed that respondent is engaged in interstate
[PAGE 2]
and intrastate trucking operations and maintains a place of
business in South San Francisco, California, with main offices in
Overland Park, Kansas. It is also undisputed that complainant
was employed by respondent as a driver of commercial motor
vehicles having a gross vehicle rating of 10,000 or more pounds
used on the highways in intrastate commerce to transport general
cargo. TR 16.[1] I therefore conclude that complainant was an
"employee" and that respondent was his "employer" and a "person"
within the meaning of the Act. 49 U.S.C. § 31101(3)(A).
The present action was triggered by respondent's decision to
discharge complainant on Friday, June 23, 1995, after he brought
his truck back to the Yellow Freight terminal without having
completed his assigned deliveries.
Complainant, who has been a Yellow Freight driver for the
past 27 years, was scheduled to work from 4:00 a.m. until 1:00
p.m. on the day in question. He worked on the dock from 4:00
a.m. until 8:00 a.m., took a one hour break, and received his
first driving assignment around 9:00 a.m. TR 33. It is
undisputed that before leaving the yard on his first dispatch,
complainant informed his shift supervisor, Paul Okunewich, that
he wanted to be off work by 1:00 p.m. and that he was unwilling
to work overtime. TR 27. Evidently, the subject of mandatory
overtime was a source of continuing conflict between complainant
and Mr. Okunewich. Complainant testified that although he
regularly informed Mr. Okunewich he did not want to work
overtime, he was frequently dispatched near the end of his shift
and required to work past his scheduled quitting time in order to
complete deliveries. TR 51-52.
According to complainant, his first dispatch on June 23,
1995, involved driving from the Yellow Freight terminal in South
San Francisco to Brisbane and picking up a truckload of "skids"
that weighed about 900 pounds apiece and had to be jacked up into
the back of the truck by hand. He stated that the temperature
was in the 90's and he was so hot and sweaty when he returned to
the yard around 11:15 a.m. that Mr. Okunewich offered him a soft
drink. TR 33. Complainant testified that he informed Mr.
Okunewich at this time that the heat was getting to him and that
he was beginning to be fatigued. TR 33.
At approximately 11:35 a.m., complainant was dispatched to
make three deliveries, two of which consisted of hazardous
materials. He testified that he asked Mr. Okunewich to assign
the dispatch to one of two other available drivers in the yard,
both of whom had less seniority than complainant, because it
would be impossible to complete all three deliveries and be back
in the yard by 1:00 p.m. TR 35-36. According to complainant, Mr.
Okunewich told him to take the dispatch and complete as many
deliveries as he could before 1:00 p.m., at which time he could
[PAGE 3]
return to the terminal regardless of whether the deliveries were
completed. TR 37.
It was Mr. Okunewich's testimony that complainant told him
at 9:00 a.m. and again at 11:15 a.m. that he wanted to be off
work by 1:00 p.m. TR141. Mr. Okunewich testified that he
informed complainant he would probably not be released by 1:00
p.m. because there was plenty of work to be done and Yellow
Freight was short on drivers that day. TR 142. He denied having
told complainant that he could return to the terminal at 1:00
p.m. TR 151. Mr. Okunewich left work at 12:30 p.m., after
informing operations manager Rocky Muzzin that complainant
wanted to be off work at his scheduled quitting time. He
testified that he did not recall complainant indicating he was
hot, tired, fatigued or ill. TR 145.
Complainant left the yard at 11:50 a.m. and drove into San
Francisco for his first delivery, where he unloaded 20 rolls of
material weighing approximately 1,100 pounds from the back of the
truck onto the street. He testified that he had to ask one of
the workers in the customer's receiving department to assist in
opening the back door of the truck because the rolls of material
were wedged into the trailer. According to complainant, the
temperature was 110 degrees in the back of the truck and it took
him about 40 minutes to unwedge the large and unwieldy rolls of
material and push them down to the ground. He stated that when
he finished, he was sweating so much he could not see through his
glasses and he was dehydrated and lightheaded. Complainant
testified that he decided it would be unsafe for him to continue
making his deliveries, although he believed he could safely drive
the truck back to the terminal. TR 37-40.
Complainant testified that he called the Yellow Freight
terminal at 1:00 p.m. and informed Mr. Muzzin that he was hot and
tired, that he had Mr. Okunewich's permission to stop delivering
at 1:00 p.m., and that he was "coming in." He testified that Mr.
Muzzin ordered him to stay out until the deliveries were
completed. Complainant disobeyed the order and drove back to the
terminal. He arrived at the terminal around 1:30 p.m., backed
the trailer against a dock, put the tractor away and filled out
his paperwork in the truck. He testified that he offered to stay
and work on the dock until 2:00 p.m. in keeping with his
obligation under the contract. Mr. Muzzin, however, informed
complainant that he was fired. TR 41-45.
Mr. Muzzin agreed that he spoke to complainant over the
radio for about five minutes at approximately 1:00 p.m. He
testified, however, that complainant announced he was coming in
without giving a reason or mentioning that he was hot or tired.
TR 105-106. Mr. Muzzin stated that he informed complainant he
would be subject to disciplinary action up to and including
[PAGE 4]
discharge if he refused to finish his deliveries. He gave
uncontroverted testimony to the effect that complainant's two
remaining deliveries would have added no more than two miles to
the run and the customers would have performed the unloading,
although complainant might have been required to bring the load
to the rear of the truck with a pallet jack. TR 118-119.
Both Mr. Okunewich and Mr. Muzzin testified that it is
Yellow Freight's policy to tell drivers who believe they cannot
finish a delivery because of illness or injury to pull over and
stop driving. TR 114, 123-124. And, three of complainant's co-
workers testified that they have on occasion been allowed to
return to the yard without having finished their deliveries. Ray
Cozzette, a driver who has worked for Yellow Freight for about 28
years, testified that he had come in early on a few occasions
when he felt ill without being disciplined. TR 70. Jack Keenan
testified that he had been allowed to bring back loads in order
to be off at his quitting time. TR 77. Jack McLinn similarly
testified that he has brought back loads without being
disciplined or fired. TR 85. In view of the foregoing policy,
complainant argues that the decision to fire him for failing to
complete his deliveries when he was too hot and tired to do so
amounts to disparate treatment.
Mr. McLinn also testified that he listened to the
conversation between complainant and dispatch on his radio as he
sat in his parked truck between deliveries on June 23, 1995. He
testified that he overheard complainant say he was tired and
wanted to come in. TR 86-87. Mr. McLinn stated that he listened
to the entire conversation, which lasted from 12:50 p.m. until
1:10 p.m. TR 88. On cross-examination, however, he admitted that
his manifest for June 23, 1995, indicated that he made a delivery
at Genentech between 12:40 to 12:55, and then made a second
delivery at Air Cargo, which was about five minutes away from
Genentech, between 1:00 until 1:1O. TR 89-91; RX 1.
Analysis
Section 2305(b) of the Act, inter alia, prohibits
discharge, or any other manner of discrimination against 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...." In order to establish a prima facie
case under the Act, the complainant must show that he engaged
in some activity protected under section 2305, that the employer
knew of the protected activity, and that the employer took some
adverse action against him. In addition, the complainant must
show it was likely that the adverse action was motivated by the
protected activity. Anderson v. Jonick & Co., Inc., 93-
STA-6 (Sec'y Sept. 29, 1993); St. Mary's Honor Center v.
Hicks, 113 S.Ct. 2742 (1993).
[PAGE 5]
Complainant contends that his decision to return to the
Yellow Freight terminal at 1:00 p.m. on June 23, 1995, was
protected activity because he was so hot and fired that his
continued driving would have posed a safety threat, thereby
violating the following federal safety regulation:
No driver shall operate a motor vehicle, and a motor
carrier shall not require or permit a driver to operate a
motor vehicle, while the driver's ability is so impaired,
or likely to become impaired, through fatigue, illness, or
any other cause, as to make it unsafe for him to begin or
continue to operate the motor vehicle.
49 CFR § 392.3.
Respondent, however, contends that complainant's refusal to
complete his deliveries resulted from the ongoing dispute between
complainant and his supervisor regarding mandatory overtime.
Thus, respondent argues that complainant's refusal to complete
his deliveries was motivated by his aversion to working overtime
hours rather than by legitimate safety concerns and, therefore,
that the work refusal was not protected activity under the Act.
As previously indicated, in order to establish a prima
facie case the complainant must initially show by a
preponderance of the credible evidence that: (1) he was engaged
in protected activity; (2) the employer was aware of the
protected activity; and (3) the employer took adverse action
against the complainant, leading to an inference that the adverse
action was likely caused by the protected activity. The
threshold issue, therefore, is whether complainant was actually
engaging in protected activity when he refused to complete his
deliveries on June 23, 1995, i.e., that the circumstance that
complainant was hot and tired made him unable to safely drive his
vehicle or that he genuinely and reasonably believed that he
would become unable to drive safely.
Complainant testified that he prefers not to work overtime
and admitted having had previous run-ins with Mr. Okunewich over
the subject of mandatory overtime. He testified that he told Mr.
Okunewich every day he did not want to work past 1:00 p.m. and
that he made it perfectly clear he was unwilling to work overtime
on June 23, 1995. It was complainant's testimony that on the day
in question, Mr. Okunewich responded to his announcement by
telling him to "blaze away and work until 1:00 and then return to
the yard." TR 37. However, complainant's assertion that he was
given permission to return to the terminal at 1:00 p.m. is
inconsistent with his testimony that Mr. Okunewich frequently
ordered him to go out near the end of his shift with deliveries
[PAGE 6]
that could not possibly be completed by his scheduled quitting
time. Accordingly, I find that Mr. Okunewich did not tell
complainant he could return to the terminal at 1:00 p.m. on June
23, 1995. Moreover, even assuming for the sake of argument that
Mr. Okunewich made such a statement, it would have been
superseded by Mr. Muzzin's order to complete the deliveries
before returning.
According to complainant, his seniority with the company
entitles him to pass up overtime if a driver with less seniority
is available to take it instead. He stated that there were two
available drivers with less seniority in the yard that day but
that respondent bypassed the overtime seniority system.
Complainant testified that respondent's disregard of his
preferences regarding overtime violated provisions of the
collective bargaining agreement between respondent and Teamsters
Joint Council No. 7. TR 50-51; see also CX 2. Further,
complainant argues that his termination was improper because
respondent did not issue an "intent to discharge letter" and
allow him to stay on the job until a grievance hearing. Finally,
complainant alleged that respondent failed to pay his wages and
vacation pay at the time of his discharge as required by the
collective bargaining agreement. See CX 4.
However, respondent's compliance with the provisions of the
collective bargaining agreement is not within the jurisdiction of
this forum.[2] The appropriate inquiry here involves the issues
of whether complainant was sufficiently hot and tired that his
ability to drive was, or was likely to become, impaired, and, if
so, whether complainant made respondent aware that he was, or was
likely to become, unable to drive safely. See Smith v.Specialized Transportation Services, 91-STA-22 (Sec'y Apr.
20, 1992).
Complainant's testimony regarding his actions on the
afternoon of June 23, 1995, does not support the proposition that
he was sufficiently hot and tired that his ability to drive or
alertness was so impaired as to violate the safety regulation set
forth at 49 CFR 392.3. Specifically, complainant testified that
he was in control of his vehicle and operating it safely at 1:00
p.m. Further, he stated that he felt willing and able to drive
the truck back to the terminal, a trip that took about half an
hour. It is clear that he was able to make this trip without
incident. He admitted that after he arrived at the terminal, he
put away his trailer and tractor and then sat in the
unairconditioned cab of his truck while he completed his
paperwork. In addition, he testified that he offered to stay on
the dock and work until 2:00 p.m. in accordance with his
contract. If complainant was in fact as hot and fired as he
would have believed, it seems more likely than not that he would
[PAGE 7]
have attempted to find a cool place in which to recover rather
than undertaking to immediately drive his truck back to the
terminal in a significantly debilitated manner. Additionally,
his willingness and ability to complete his usual post-trip
procedures suggest that he was not inordinately hot and tired.
Finally, it is noteworthy that complainant did not produce
witnesses to corroborate his contention that he had reached his
physical limit by 1:00 p.m. on June 23, 1995. Complainant
testified that he received assistance from one of the customer's
receiving personnel during his last delivery on that day, and it
is assumed that he was observed by Yellow Freight personnel when
he returned to the terminal, yet he did not call these
individuals to testify as to their observations. In
consideration of the foregoing and in the absence of any evidence
beyond complainant's bare assertion that he was hot and tired, I
am unable to find that his ability to drive was, or was likely to
become, so impaired as to make driving unsafe.
Complainant's testimony regarding his interpretation of the
mandatory overtime provisions in the collective bargaining
agreement persuades me that he felt he was not being afforded his
contractual rights in light of his 27 years of seniority with
Yellow Freight. Under these circumstances, and in the context of
complainant's repeated announcements that he was unwilling to
work overtime on June 23, 1995, I am convinced that his refusal
to continue delivering past his scheduled quitting time of 1:00
p.m. on that day was based on his dissatisfaction with the
overtime situation and his conviction that he was being treated
unfairly by Yellow Freight management, rather than on safety
considerations.
Assuming, arguendo, that complainant's refusal to
complete his deliveries was based on legitimate safety concerns,
however, he must additionally show that he informed respondent
that because he was hot and tired, he was unable, or likely would
become unable, to drive safely. It was complainant's testimony
that at 1:00 p.m. he informed Mr. Muzzin that he was hot and
tired and that he was coming in. Complainant's corroborating
witness was Mr. McLinn, who testified that he listened to a 20
minute conversation in which complainant informed dispatch he was
coming in because he was tired. Mr. McLinn's testimony that he
overheard this conversation as he sat in his parked truck,
however, contradicts his signed manifest, which shows that he was
busy with deliveries during the relevant time period. In
addition, both complainant and Mr. Muzzin testified that their
conversation lasted approximately five minutes, rather than
twenty minutes as recalled by Mr. McLinn. On the basis of these
discrepancies, I cannot rely on Mr. McLinn's testimony.
Mr. Muzzin and Mr. Okunewich both denied that complainant
[PAGE 8]
ever told them he was too hot and tired to complete his
deliveries. Further, they testified that it is Yellow Freight's
policy to instruct any driver who is unable to drive due to
injury or illness to stop driving and wait for the assistance of
Yellow Freight personnel. The testimony of complainant's co-
workers supports a finding that Yellow Freight drivers who are
ill or tired may return before completing their assignments
without fear of disciplinary action. I am unable to find that
complainant was subject to disparate treatment due to the
insufficiency of the evidence of record regarding the precise
circumstances under which other Yellow Freight drivers were
permitted to bring back deliveries. The testimony of the
witnesses for both sides persuades me that complainant would not
have been ordered to complete his deliveries if, indeed, he had
informed respondent that he was too hot and tired to drive
safely.
Finally, during the hearing, the following exchange took
place as complainant cross-examined Mr. Muzzin:
Q. When I called in and stated that I was finished with
the rolls and coming in and that was that, did you ask me what
the problem was?
A. No, I mentioned that you had two more deliveries.
Q. But because I continued to stress the fact that I was
coming in, that didn'tstrike you that there could
possibly be something wrong and that you might want toinquire as to what that possibly could be? [emphasis added]
A. No, actually, Ron, I -- that didn't. I thought you
wanted to get off. I think you mentioned that you wanted to get
off at 1:00 o'clock, and I just took that as you wanted to get
off at 1:00 o'clock.
TR 132.
This line of questioning makes sense only if complainant did
not inform Mr. Muzzin he was hot and fired when he called and
announced he was coming in. Based on the foregoing, I am unable
to credit complainant's assertion that he communicated a safety
related reason for his refusal to continue working. Moreover,
even if it is assumed that he told respondent he was hot and
tired, this does not rise to the level of a report that he could
not drive safely or that he was likely to become unable to do so.
In consideration of the evidence of record, and having had
the opportunity to observe the witnesses as they testified, I
[PAGE 9]
find that while complainant may well have been hot and tired at
1:00 p.m. on June 23, 1995, he has failed to establish by a
preponderance of the credible evidence that his continued driving
would have constituted a violation of federal safety regulations.
Further, the evidence does not support a finding that he
communicated a safety related reason for his work refusal. I
conclude, therefore, that complainant has failed to establish a
prima facie case under section 2305(b) of the Act by a
preponderance of the reliable, probative and substantial
evidence, and that respondent did not violate section 2305(b) of
the Act by discharging complainant for his failure to complete
his assigned deliveries on June 23, 1995.[3]
Wherefore, I recommend that the complaint of Ron Ward
against Yellow Freight, Inc. be DISMISSED.
Steven E. Halpern
Administrative Law Judge
[ENDNOTES]
[1] The following abbreviations will be used: "TR" - Transcript
of hearing; "CX" - complainant's exhibits; "RX" - respondent's
exhibits. At the hearing, complainant's exhibits 1 through 8 and
respondent's exhibits 1 through 5 were admitted as offered, while
complainant's exhibit 9 was rejected.
[2] It is noted that as a result of a union grievance hearing,
complainant was reinstated without back pay after five weeks off
work.
[3] As I find no evidence that illegal motives played any part in
Respondent's decision to discharge complainant, a dual motive
analysis is not applicable. See Hernandez v. Guardian
Purchasing Co., 91-STA-31 (Sec'y June 4, 1992).
