The lawyer did not err because there is no refusal to drive at issue in this case.
Leidigh contends that the "refusal to drive" provision applies in
this case because he sought a leave of absence because of "stress syndrome." He further
contends that to drive while under stress syndrome would violate the motor carrier safety rules. He
attached a physician's statement, dated January 1991, that diagnosed stress syndrome. On its face,
the 1991 physician statement concerning stress syndrome could not pertain to the discharge in this
case, which occurred some five years earlier.
There is no other evidence that Leidigh engaged in a refusal to drive in 1986.
Under regulations implementing the STAA's employee protection provision, the Occupational
Safety and Health Administration (OSHA) conducts the initial investigation into a complaint. 29
C.F.R. §1978.103. In the investigation, OSHA determines whether "there is reasonable
cause to believe that the complaint has merit." 49 U.S.C. app. §2305(c)(2)(A). When
a party is dissatisfied with the results of the preliminary investigation, he may "request a
hearing on the record" before an ALJ. Id. Upon the conclusion of the hearing, the
ALJ issues a recommended decision. Formerly, the Secretary of Labor, and now this Board, issues
a final order on the complaint.
In light of the statutory scheme outlined above, the Board usually does not rely
upon the findings of the OSHA Administrator, but instead looks to the record made before the ALJ.
In this case, however, the findings in the preliminary investigation are the best indication of the
nature of Leidigh's complaint.
The findings issued by the OSHA Regional Administrator indicate that there
was no refusal to drive at issue in the 1986 discharge. The Regional Administrator stated Leidigh's
[Page 6]
allegations in the complaint as follows: that he was constructively discharged when Freightway
closed the Defiance terminal; that Freightway discriminatorily denied his request for voluntary
layoff; that Freightway contested his application for unemployment compensation in retaliation for
protected activities in which he had engaged in 1982 and 1983; and that he was harassed in April
1986 when Freightway threatened to make him pay for two tires that were destroyed because he
drove a vehicle with defective brakes. Secretary's Findings, Feb. 10, 1987, at pp. 2-4. Concerning
the brakes issue, the Regional Administrator noted that Leidigh "did not refuse the
assignment" and that Freightway did not make him pay for the tires. Id . at 4. Thus,
no refusal to drive occurred in connection with the events that preceded Leidigh's 1986 discharge.
In his findings in this case, the Regional Administrator mentioned that in 1983,
Leidigh had been discharged for refusing to drive and had filed a complaint under the STAA; that
no STAA violation was found, and that Leidigh nevertheless was reinstated pursuant to a union
negotiation. The 1983 discharge is not at issue in this complaint, filed in 1986. Because there is no
"refusal to drive" issue in the complaint, Leidigh's attorney did not err when he did not
litigate such a claim. There is no reason to reopen because of counsel's handling of this case.
3. Leidigh did not allege a medical condition in this
complaint
In a July 27, 1998 letter to the Board, Leidigh contends that he alleged a
medical condition, petitioned Freightway about stress, and requested a leave of absence to correct
his medical condition. Although such a request may have occurred at some other time, and Leidigh
may well have filed some other complaint concerning denial of a medical leave, he did not do so in
this complaint.
With the May 1986 deadline approaching for choosing whether to work for
Freightway at the Toledo terminal, Leidigh sought a voluntary layoff, stating: "I have been
forced under pressure and without the advice of counsel to make decisions not in my best interest.
I request a Co[mpany] Vol[untary] layoff, until such time I can exercise my Co[mpany]
seniority." CX 12. At the hearing Leidigh explained that he sought the layoff so that he could
get representation from his union. T. 86. This concession that the layoff was for the purpose of
getting union help indicates that it was not based upon a medical condition.
In a July 30, 1998 letter to the Board, Leidigh maintains that the issue of his
medical condition nevertheless arose at the hearing in this case. He points to the testimony of
Richard Pursel, Vice President of Operations at Freightway, on cross-examination:
Q: Did you in any time in your course of dealings and knowing Bob consider
him at times to be a nervous person?
[Page 7]
A: Yes, sir.
T. 307. Contrary to Leidigh's suggestion, Pursel's testimony that he sometimes appeared to be
a nervous person does not constitute evidence that he sought, or was denied, a medical leave in the
events leading to the filing of this complaint concerning his 1986 discharge.
CONCLUSION
Complainant has not presented evidence of any manifest errors of law or fact,
or any newly discovered, material evidence. Consequently, we DENY the requests for
reconsideration.
SO ORDERED.
PAUL
GREENBERG
Chair
CYNTHIA L.
ATTWOOD
Acting Member
[ENDNOTES]
1 In 1994, the employee protection
provision was codified, without substantive change, at 49 U.S.C. §31105. Because this case
arose prior to 1994, we will refer to the language of the provision prior to codification.
2 See FD at 4: "The
NLRB ordered Freightway to offer Leidigh immediate employment in the job he would have filled
had he been hired on November 18, 1986, and to pay back pay. Administrative Law Judge's Exhibit
5 at 5. Consequently, Freightway rehired Leidigh in May 1990."
3 The STAA's refusal to drive
provision stated at 49 U.S.C. app. §2305(b) (1988):
No person shall discharge, discipline, or in any manner discriminate against any
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 to 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.