Jackson believed
Shelton fired him during their conversation on January 14. T. 42. Jackson told
Shelton he refused to drive the tractor-trailer because of defective brakes, but Shelton
did not tell Jackson the truck would be repaired or offer another vehicle for him to
drive. T. 43. Shelton removed Jackson's belongings from the truck, T. 204, although
Jackson told him not to because he wanted to come in to speak to Grove to confirm that
he had been fired. T. 44.
Jackson made several attempts to contact Grove, leaving
messages on his answering machine, leaving notes on his vehicle, knocking on the door
of his house and visiting the "barn" where the trucks were kept, but Grove
never responded. T. 45. Grove received at least one telephone message from Jackson
saying "If I'm being fired, I want to hear it from you." T. 184-85. Grove
offered to reinstate Jackson in the spring of 1995 but Jackson refused. T. 109.
The ALJ found that Jackson engaged in protected activity
when he complained about the safety of the tractor-trailer and we agree. R. D. & O. at
9; 49 U.S.C.A. § 31105(a)(1)(A); see Reemsnyder v. Mayflower Transit,
Inc., Case No. 93-STA-4, Sec'y. Dec. and Ord. on Reconsideration, May 19,
1994, slip op. at 9 (STAA protects internal safety complaints to managers). The ALJ's
decision does not clearly hold that Jackson's refusal to drive the tractor-trailer was
protected under the STAA, R. D. & O. at 9-10, but we find that it was. The Second
Circuit affirmed the Secretary's interpretation of the STAA in Yellow Freight Sys.
v. Reich, 38 F.3d 76, 82 (2d Cir. 1994), by finding that an employee need not
prove the existence of an actual safety defect for his or her refusal to drive to receive
protection. "[T]here may exist circumstances in which an analysis of the
situation encountered by a driver at the time of [the] refusal to drive would compel the
conclusion that the driver's perception of an unsafe condition was reasonable' . . .
despite the fact that a subsequent mechanical inspection revealed no actual safety
defect." Id. at 83.
When Jackson had trouble stopping the truck on January 13,
he took it to a garage that regularly performed service work for Protein. The garage
found problems with the brakes on both the tractor and the trailer: it found the tractor
"needs brake shoes (sic) drums on both drive axles[,] also cam bushings;"
the trailer "right rear brake [is] camming over . . . rear axle need[s]
[Page 3]
brakes." R-2 and 3. The garage mechanic told Jackson the truck was not safe to
drive and advised him not to drive it. In addition, two other experienced truck drivers
who had accompanied Jackson on trips in the tractor-trailer noticed
"abnormal" difficulty stopping and became concerned about the
"stopping distances" required, even when the trailer was empty. T. 84-85;
89. Given these facts at the time Jackson refused to drive the truck, we find he had a
reasonable apprehension of serious injury. 49 U.S.C.A. § 31105(a)(1)(A)(2).
The fact that Shelton inspected the truck thereafter and found no problem, and drove
the truck for 10 days after January 13 without incident and without experiencing
difficulty with the brakes, does not deprive Jackson's refusal to drive of protection
under the Act, given the facts available to him at the time be refused. Yellow
Freight v. Reich, 38 F.3d at 83. We also note that on January 23, only ten days
after Jackson's refusal, the brakes on the trailer were repaired. R. D. and O. at 5.
Nothing in the record indicates that Shelton or anyone else from Protein informed
Jackson that the tractor-trailer was safe to drive on January 13 even though the brakes
needed repair and, in fact, were repaired only ten days later.
We also find that Jackson met the requirement of the STAA
that "[t]o qualify for protection [under the refusal to drive provision of the Act],
the employee must have sought from the employer, and been unable to obtain,
correction of the unsafe condition." 49 U.S.C.A. § 31105(a)(2). Jackson
called Tim Grove, the owner of Protein Express, on the evening of January 13, the day
the repair shop informed Jackson of the unsafe condition of the brakes, and requested
that the truck be repaired or that he be given another truck to drive. The next day
when Jackson spoke to Shelton, who acted in the capacity of a foreman for Protein, he
told Shelton he refused to drive the truck because of defective brakes, but Shelton did
not tell him the truck had been inspected and found safe or offer another truck for him
to drive. At no time thereafter did anyone from Protein tell Jackson the problem with
the brakes had been investigated and either found safe or repaired. See Pensyl v.
Catalytic, Inc., Case No. 83-ERA-2, Sec'y. Dec. Jan. 13, 1984, slip op. at 7
(refusal to work not protected after investigation and explanation of safe condition to
employee by management).
We do not agree with the ALJ that Jackson
"abandoned his position" and no adverse employment action occurred. R.
D. & O. at 10. When Jackson called Grove on January 13, he requested that the
tractor-trailer be repaired or that he be given another, safe, truck to drive. Grove
himself testified that Jackson told him "I'm not driving [the truck] until it's
fixed," T. 108 (emphasis added), not that he refused to drive for Protein at
all. Grove also acknowledged receiving a telephone message from Jackson saying
[Page 4]
"[i]f I'm being fired, I want to hear it from you," T. 184-85, but Grove
never returned the call. T. 185. Jackson told Shelton on January 14 not to remove his
belongings from the truck, T. 204, because Jackson wanted to speak to Grove in person
about whether he had in fact been fired. T. 44. These actions show that, far from
abandoning his job, Jackson was attempting to clarify his status; he indicated his intent
to continue working for Protein by asking Grove for another truck to drive and by
telling Shelton not to remove his belongings from the tractor-trailer with the defective
brakes.
When no clear statements have been made by management
establishing an employee's status, [t]he test of whether an employee has been
discharged depends on the reasonable inferences that the employee could
draw from the statements or conduct of the employer.' Pennypower Shopping
News, Inc. v. N.L.R.B., 726 F.2d 626, 629 (10th Cir. 1984) (emphasis in
original)." N.L.R.B. v. Champ Corp., 933 F.2d 688, 692 (9th Cir.
1990), cert. denied, Champ Corp. v. N.L.R.B., 502 U.S. 957 (1991). By
failing to respond to Jackson's request for another truck to drive and to his message
asking for clarification of his status, and by removing his belongings from the truck
against his wishes, Protein's conduct indicated it had discharged Jackson. Finally we
find that the same facts show that Protein violated the STAA when it discharged
Jackson for refusing to drive a motor vehicle because he had a reasonable apprehension
of serious injury to himself or the public because of the vehicle's unsafe condition.
However, because Protein made an unequivocal offer to reinstate Jackson which he
rejected, we will not order reinstatement but we remand this case to the ALJ for
calculation of back pay, compensatory damages, if any, and attorney's fees.
SO ORDERED.
DAVID A. O'BRIEN
Chair
KARL J. SANDSTROM
Member
JOYCE D. MILLER
Alternate Member
[ENDNOTES]
