The Secretary held that it would be inconsistent with the purpose
of the STAA to limit the covergage of paragraph (a) of section
2305 only to those complaints filed with governmental agencies.
The purpose of the Act is to promote safety on the highways. The
Secretary stated that an employee's safety complaint to his
employer is the initial step in achieving this goal. Therefore,
a driver's reporting of defects in the vehicles he has driven is
an acitivity protected under section 2305(a). The fact that he
may not have pointed to a particular commercial motor vehicle
safety standard that was violated does not deprive him of
coverage under the Act. Davis v. H.R. Hill, Inc.,
86-STA-18 (Sec'y Mar. 19, 1987).
[STAA Whistleblower Digest V B 1 a]
PROTECTED ACTIVITY; COMMUNICATIONS TO COWORKERS; INTERNAL COMPLAINTS; LAW UNRESOLVED IN SECOND CIRCUIT
In Harrison v. Administrative Review Board, __ F.3d __, No. 03-4428 (2d Cir. Nov. 30, 2004) (case below ARB No. 00-048, ALJ No. 1999-STA-37), the ARB had determined that the Complainant's red tagging of trailers for safety defects was not protected activity because the communicative function of such tagging was intended for coworkers rather than supervisors. The Second Circuit did not reach this issue because it affirmed the Board on other grounds. In a footnote it observed that it had never squarely addressed whether section 31105(a)(1)(A) covers internal complaints, and observed that while other circuits and DOL had found coverage for internal complaints, the Second Circuit had construed similar language in the FLSA as not protecting informal complaints to supervisors.
[STAA Whistleblower Digest V B 1 a]
PROTECTED ACTIVITY; REFUSAL TO SUBMIT TO RANDOM DRUG TEST
In Bergman v. Schneider National, 2004 STA 19 (ALJ Mar. 9, 2004), the ALJ recommended dismissal of a complaint that was based on the Complainant's refusal to submit to a random drug test under the employer's drug test policy. The ALJ recommended dismissal because the Complainant failed to establish that refusal to submit to a random drug test was protected activity under the STAA.
[STAA Digest V B 1 a]
INTERNAL COMPLAINTS IN FLSA ANTI-RETALIATION ACTION
In Valerio v. Putnam Associates,
Inc., No. 98-1399 (1st Cir. Apr. 9,
1999), the court considered whether the Fair Labor Standards Act anti-retaliation provision, 29
U.S.C. § 215(a)(3), protects written internal complaints. Noting a spilt in the circuits, the
First Circuit aligned itself with the Sixth, Eighth, Tenth and Eleventh Circuits in deciding that an
internal complaint to the employer may satisfy section 215(a)(3). In rendering its decision, the
court relied in part on its decision in Clean Harbors
Environ. Serv., Inc. v. Herman, 146 F.3d 12 (1st Cir. 1998), which interpreted the
similar anti-retaliation provision of the Surface Transportation Assistance Act, 49 U.S.C. §
31105(a)(1)(A). The court rejected the Defendant's contention that Clean Harbors
should not guide the interpretation of the FLSA provision because of different purposes and
enforcement schemes of the FLSA and the STAA essentially, that while the STAA concerns
public health and safety and therefore there is a need for dispatch, such immediacy is not present
for FLSA complainants. The court noted other objects of the STAA anti-retaliation scheme, such
as the policy of not forcing employees to go straight to the government with safety concerns but
permitting an employer to remedy problems voluntarily and quietly. The court also noted that
the "fear of economic retaliation might operate to induce aggrieved employees to accept
substandard conditions." [citation omitted]
The court, however, held that "not all abstract grumblings will suffice to constitute the
filing of a complaint with one's employer." The court wrote that "written comments
and criticisms made to an employer may not always amount to filed complaints [under the
FLSA]." Thus, the court decided that, like the panel in Clean Harbors under the
STAA, "we have little choice but to proceed on a case-by-case basis, addressing as a matter
of factual analysis whether the internal communications to the employer were sufficient to
amount to the 'filing of any complaint' within the statutory definition."
[STAA Digest V B 1 a]
INTERNAL COMPLAINT
In Clean Harbors Environmental Services,
Inc., v. Herman, __ F.3d __, No. 97-2083, 1998 WL 293060 (1st Cir. June 10,
1998) (case below 95-STA-34), the First Circuit held that the STAA, 49 U.S.C. §
31105(a)(1)(A), protects an employee who has filed purely intracorporate complaints about
alleged violations of federal law. The court relied on the fact that the statutory language is
susceptible to more than one reading; that Congress reenacted the STAA without change in the
fact of long-standing administration interpretation of the STAA and similar language in other
statutes to include internal complaints; that this provision is "the sort of interstitial law
making which Congress left to the agency...."; and that DOL's policy choice in interpreting
the statute to include internal complaints "is eminently reasonable." 1998 WL
293060 * 7 (citation omitted).
[STAA Digest V B 1 a]
INTERNAL COMPLAINTS PROTECTED UNDER THE STAA
Internal complaints to management are protected activity under the whistleblower
provision of the STAA. Goggin v. Administrative Review Board, No.
97-4340 (6th Cir. Jan. 15, 1999)(unpublished) (available at 1999 WL 68694) (case below
1996-STA-25).
INTERNAL COMPLAINTS; COMPLAINANT'S UNSUPPORTED ASSERTIONS [STAA Digest V B 1 a]
Internal complaints to management are protected activity
under the whistleblower provision of the STAA; the complainant,
however, must prove by a preponderance of the evidence that he
actually made such an internal complaint. In Williams v.
CMS Transportation Services, Inc., 94-STA-5 (Sec'y Oct.
25, 1995), the Complainant failed to carry that burden where
there was no evidence or written documentation supporting the
Complainant's allegations that he made internal complaints.
V B 1 a Evidence of actual violation versus reasonable
danger; report to state
highway patrol and scale house officer
In Ass't Sec'y & Lansdale and Lee v. Intermodal Cartage
Co., Ltd., 94-STA-22
(ALJ Mar. 27, 1995), the ALJ, in her Recommended Decision and
Order, found that where the
circumstantial evidence did not establish the weight of
containers at the time the Complainants refused
to drive, relief under Section 33105(a)(1)(B)(i) was not
available because it was not established that a
federal weight regulation was violated. Nonetheless, much the
same evidence established a Section
33105(a)(1)(B)(ii) violation because the manner in which the
containers had been loaded (space at the
rear with excessive weight on the drive axles) established a real
danger of accident, injury or serious
impairment to the health of the drivers or others. In addition,
the ALJ found that the Complainant's
reporting of the unsafe condition to a state highway patrol
officer and a scale house officer was
protected under Section 31105(a)(1)(A).
V B 1 a Internal complaints
In Doyle v. Rich Transport, Inc., 93-STA-17 (Sec'y
Apr. 1, 1994), the Secretary indicated that internal complaints
to management are protected activity in all Federal circuits
under the STAA. The Secretary noted that the decision of
Brown & Root v. Donovan, 747 F.2d 1029 (5th Cir.
1984), in which the court held that internal complaints are not
protected activity in ERA cases, had not been extended to STAA
cases.
V B 1 a Threat to enforce motor carrier safety
regulation
A threat to enforce motor carrier safety regulations is protected
under the STAA's employee protection provision, 49 U.S.C. §
31105(a)(1)(A) (the "complaint" section). Williams v. Carretta Trucking, Inc., 94-STA-7
(Sec'y Feb. 15, 1995) (threat to drive truck to highway weigh
station to have truck inspected).
V B 1 a Internal complaints
The Secretary of Labor takes the position that internal
complaints to superiors are protected under the STAA's complaint
section. The Secretary noted that the ERA decision in Brown
& Root v. Donovan, 747 F.2d 1029 (5th Cir. 1984), holding
that an employee must "file a formal complaint with an
appropriate government agency" had not been extended by the
Fifth Circuit to STAA cases, and that he would decline to adopt
the Brown & Root holding for the reasons stated in
Davis v. H.R. Hill, Inc., 86-STA-18 (Sec'y Mar. 19, 1987).
A complainant's failure to file a complaint or initiate
proceedings with OSHA is not the only conduct protected under
section 2305(a). Citing to Hufstetler v. Roadway Express,
Inc., 85-STA-8 (Sec'y Aug. 21, 1986), The Secretary held that
complaints to others, including internal complaints to an
employer or supervisor, are protected under section 2305(a).
Juarez v. Ready Trucking Co., 86-STA-27 (Sec'y July
7, 1988).
V B 1 a Internal complaints - STAA
Under the burdens of proof in STAA proceedings, a complainant
must show that he engaged in protected activity, that he was
subjected to adverse action, and that the respondent was aware of
the protected activity when it took adverse action. A
complainant also must present evidence sufficient to raise the
inference that the protected activity was the likely reason for
the adverse action. Roadway Exp., Inc. v. Brock, 830 F.2d
179, 181 n.6 (11th Cir. 1987). An employee is protected under
STAA Section 405(a) if he "has filed any complaint or
instituted or caused to be instituted any proceeding relating to
a violation of a commercial motor vehicle safety rule,
regulation, standard, or order . . . ." 49 U.S.C. app.
§ 2305(a). See Davis v. H.R. Hill, Inc., 86-STA-18
(Sec'y Mar. 18, 1987), slip op. at 3-4 (both internal and
external safety complaints protected). Cf. Bivens v.
Louisiana Power and Light, 89-ERA-30 (Sec'y June 4, 1991),
slip op. at 4-5 (citing cases) (internal safety complaints to
employer protected under environmental whistleblower laws).
Reed v. National Minerals Corp., 91-STA-34 (Sec'y
July 24, 1992).
A Complainant engaged in protected activity when he declined a
dispatch due to fatigue, declined to continue driving due to
fatigue, and when he complained about or "protested"
discipline received because of these work refusals and because he
had counseled other drivers about DOT regulations.
Smith v. Yellow Freight System, Inc., 91-STA-45
(Sec'y Mar. 10, 1993), slip op. at 13.
In Carter v. Marten Transport, Ltd., ARB Nos. 06-101, 06-159, ALJ No. 2005-STA-63 (ARB June 30, 2008), on the day that the Complainant met with management to discuss his safety concerns with his assigned truck, the Complainant threatened to call, and did then call, the FMCSA and state and local police from the Respondent's employee break room. The ARB held: "When Carter called FMCSA, he engaged in STAA-protected activity because he was filing a complaint or beginning a proceeding related to a violation of a motor vehicle safety regulation, standard, or order. Threatening to file a complaint based on a reasonable belief regarding the existence of a violation is also protected."
[STAA Digest V B 1 c i]
PROTECTED ACTIVITY; MERE THREAT TO "GO TO THE DOT" FOUND NOT TO BE PROTECTED ACTIVITY UNDER THE CONTEXT IN WHICH THE THREAT WAS MADE
In Jackson v. Eagle Logistics, Inc., ARB No. 07-005, ALJ No. 2006-STA-3 (ARB June 30, 2008), the Complainant's threat to "go to the DOT" did not rise to the level of "filing a complaint" sufficient to constitute protected activity under the STAA where it was made in the context of telephone call from the Respondent's President who was asking why the Complainant was arriving late for scheduled trips, and the Complainant responded by swearing at the President and threatening contact with the DOT, and where in the month following the threat he never attempted to actually file any type of complaint with the DOT. The President had phoned the Complainant after he had been late three times within the first few weeks of work and had falsified his driver's log.
V B 1 c i Communication in related
proceedings
Information and testimony obtained in related proceedings in turn
may precipitate or otherwise bear on STAA complaints or
investigations. Cf. Donovan v. R.D. Andersen Const. Co.,
Inc., 552 F. Supp. 249, 251-253 (D. Kan. 1982) (employee's
communication to the media protected because it could result in
institution of OSHA proceedings).
[STAA Whistleblower Digest V B 1 c i]
PROTECTED ACTIVITY; COMPLAINANT'S FAILURE TO COMPLY WITH EMPLOYER'S POLICY REQUIRING LOGGING TIME SLEEPING AS "OFF DUTY" IS NOT PROTECTED ACTIVITY
In Blackann v. Roadway Express, Inc., No. 04-4026 (6th Cir. Dec. 15, 2005) (unpublished) (available at 2005 WL 3448280) (case below ARB No. 02-115, ALJ No. 2000-STA-38), the Sixth Circuit affirmed the ARB's holding that the Complainant failure to comply with the Respondent's policy of requiring that drivers record time sleeping as "off duty" even when the truck does not have a sleeper berth was not protected activity under the STAA. Although the Complainant cited that the DOT regulation defining on duty time at 49 C.F.R. § 395.2(4), the ARB had correctly found that this regulation explicitly left it to employers to determine the manner of recording tour of duty time.
[STAA Whistleblower Digest V B 1 c i]
PROTECTED ACTIVITY; ALLEGATION OF LEAKING BRAKE FLUID
An allegation of leaking brake fluid clearly is within the ambit of DOT's safety regulations and is protected activity under Section 31105(a)(1)(A) of the STAA. Densieski v. La Corte Farm Equipment, ARB No. 03-145, ALJ No. 2003-STA-30 (ARB Oct. 20, 2004).
[STAA Whistleblower Digest V B 1 c i]
PROTECTED ACTIVITY; COMPANY POLICY ON RECORDING STOPS AS OFF-DUTY TIME
Where, under federal regulations, it was the employer's choice whether the driver should record stops made during the tour of duty as off duty time, so long as the driver was relieved of responsibility for the vehicle, the company could not be found to have required the Complainant to falsify his logs despite the Complainant's assertion to the contrary. Accordingly, the Complainant did not engage in protected activity when he refused to comply with company policy with regard to logging his time on the theory that the company's policy was for the purpose of avoiding federal limitations on driving time. Hogquist v. Greyhound Lines, Inc., ARB No. 03-152, ALJ No. 2003-STA-31 (ARB Nov. 30, 2004).
[STAA Whistleblower Digest V B 1 c i]
PROTECTED ACTIVITY; REFUSAL TO LOG OFF DUTY TIME IN CONTRAVENTION OF RESPONDENT'S POLICY
The Complainant alleged that he was discharged in violation of the STAA whistleblower provision for refusing to falsify his driver log books. Specifically, Complainant logged on duty during his employerBmandated off duty break periods. The ARB, however, agreed with the ALJ that the Complainant was not engaged in protected activity when he refused to comply with the Respondent's clearly articulated policy concerning the logging of off duty time. Complainant failed to show that his discharge for claiming on duty time during certain mail runs violated regulations for computing on duty time for drivers under the federal motor carrier hours of service regulations at 49 C.F.R. § 395.2 (2001), and he accordingly was not fired in contravention of 49 U.S.C.A. § 31105(a)(l)(B)(i). The ALJ properly granted summary judgment pursuant to 29 C.F.R. § 18.40. Hardy v. Mail Contractors of America, ARB No. 03 007, ALJ No. 2002 STA 22 (ARB Jan. 30, 2004).
V B 1 c i Demand of removal of disciplinary letter from
personnel file
The complainant's complaint to his supervisor about a letter of
information demanding that it be removed from his file was found
in Hornbuckle v. Yellow Freight System, Inc., 92-
STA-9 (Sec'y Dec. 23, 1992), to be protected activity under STAA
section 405(a). The letter of information, given in this
instance for delaying freight, comprised a step progressing an
employee in the respondent's disciplinary sequence. The delay
was related to the complainant's stopping to sleep.
V B 1 c i Resolved safety complaints
The fact that a driver's safety complaints filed with the DOT and
OSHA had been subsequently considered and either resolved or
dismissed, does not transform them into non-protected conduct,
nor eliminate the possibility of subsequent retaliatory action by
the employer. Stack v. Preston Trucking Co., 86-
STA-22 (Sec'y Feb. 26, 1987).
V B 1 c i Scheduling of witnesses
Respondent's behavior in telling Complainant not to appear the
day on which he was subpoenaed as a witness in the hearing on his
brother's STAA complaint was not wrong or a violation of law
where Respondent's attorney had worked out a schedule with the
hearing judge that only one of the driver-witnesses would appear
on that day, with the other drivers appearing on subsequent days.
All of the drivers had been subpoenaed for that day, and
Respondent had a legitimate business reason to stagger the
testimony of the drivers to permit some drivers to be at work
each day. In addition, when Complainant showed up at the time he
was subpoenaed for rather than a subsequent day, there was no
attempt to interfere with his testimony, and he was paid for the
day although he did not work. The other drivers testified on a
different day.
Nolan v. A.C. Express, 93-STA-38 (Sec'y May 13,
1994).
V B 1 c i Miscellaneous; violation of company
disciplinary policy
In Brothers v. Liquid Transporters, Inc., 89-STA-1
(Sec'y Feb. 27, 1990), slip op. at 8-9, the Secretary held that
the employee protection provision of the STAA did not recognize
an action for an employer's alleged violation of company policy
as set forth in the Employee Handbook -- specifically, that
suspension rather than termination was the appropriate discipline
under the circumstances. The Secretary noted that the company
policy violations alleged -- the type of discipline that could be
imposed -- did not implicate commercial motor vehicle health or
safety matters.
V B 1 c i Testimony in proceeding "relating"
to safety violation
The pertinent inquiry under STAA section 2305(a) is whether the
complainant's testimony was offered in a proceeding relating to a
safety violation. Davis v. H.R. Hill Inc., 86-STA-18
(Sec'y Mar. 19, 1987), slip op. at 5-6 (complaints to employer
relating to commercial motor vehicle safety concerns protected
although complainant may not cite to particular regulatory
standards); Nix v. Nehi RC Bottling Co., Inc., 84-STA-1
(Sec'y July 13, 1984), slip op. at 8-9 (protection extends to
making complaint raising violation of safety rule, regulation,
standard, or order; protection is not limited to violation of
Federal law). Cf. Aurich v. Consolidated Edison Co. of New
York, Inc., 86-CAA-2 (Sec'y Apr. 23, 1987), slip op. at 4-5
(particular antidiscrimination statute alleged to have been
violated needed not in fact be applicable so long as the
complaint concerns any requirements under the statute). The
proceeding need only be "related to" a safety
violation. The violation need not comprise the only or even the
predominant subject of the proceeding.
Moyer v. Yellow Freight Systems, Inc., 89-STA-7
(Sec'y Nov. 21, 1989), aff'd on this ground and rev'd in part
on another ground sub nom., Yellow Freight System, Inc. v.
Martin, 954 F.2d 353 (6th Cir. 1992).
V B 1 c i Testimony
This is a follow up to the Secretary's decision in
Moyer. The issue on which the Secretary had been
reversed was whether the Respondent had adequate notice and
opportunity to litigate the section 405(a) allegation. The Sixth
Circuit refused to enforce the Secretary's order and remanded the
case to provide the Respondent proper notice and a full and fair
opportunity to respond. Yellow Freight System, Inc. v.
Martin, 954 F.2d 353 (6th Cir. 1992). The Secretary remanded
to the ALJ. Moyer v. Yellow Freight System, Inc.,
89-STA-7 (Sec'y May 24, 1993) (order of remand).
On remand, the ALJ conducted a supplemental hearing and concluded
that the Secretary had incorrectly assumed, in finding that a
section 405(a) violation had been alleged, that the co-worker's
hearing involved fitness to return to duty, and therefore was
related to safety. Rather, the ALJ concluded that the purpose of
the hearing was solely to provide a forum in which to show why
the driver should not be fired for failing to provide required
documentation (a physician's statement certifying the driver's
fitness for returning to duty). Moyer v. Yellow Freight
System, Inc., 89-STA-7 (ALJ May 24, 1993).
[Editor's note: The Sixth Circuit did not state that a new
theory could not be raised at the ALJ level, only that if a new
theory is raised, the respondent must be given full and fair
opportunity to respond.]
In Williams v. Capitol Entertainment Services, Inc., ARB No. 05-137, ALJ No. 2005-STA-27 (ARB Dec. 31, 2007), the ARB affirmed the ALJ's finding that the Complainant's concerns about equipment and inventory were not protected activity because they did not directly impact safety because the Respondent made arrangements with other service providers to make repairs outside the ability of its shop. The ARB found that Complainant's requests were merely for additional materials to complete the daily repair of vehicles in the ordinary course of business. The Complainant also complained about inadequate items available for necessary repairs. The ARB found, however, that the Respondent acquired the majority of its parts from outside vendors, and the Complainant was required, in completing his job requirements, to request inventory from the Respondent on a regular basis.
[STAA Digest V B 1 c ii] PROTECTED ACTIVITY; SUPPORT OF CO-WORKER IN DRIVING LOG DISPUTE
In Roadway Express v. U.S. Dept. of Labor, Administrative Review Board, No. 06-1873 (7th Cir. July 25, 2007), the Complainant alleged that he had been fired in retaliation for his support of a co-worker in a grievance hearing in which the co-worker had been accused of falsifying his driving log. The Complainant filed a statement in the proceeding asserting that the Respondent had asked him to falsify his driving log. On appeal, the Respondent argued that this was not protected activity because it was not a "proceeding relating to a violation of a commercial motor vehicle safety rule, regulation, standard, or order. " 49 U.S.C. § 2305(a). The Respondent thus argued that the alleged falsification of driving logs was unrelated to vehicle safety. DOL in contrast argued that "driving logs serve important safety purposes of ascertaining whether a driver has reached his maximum hours." Slip op. at 6 (quoting DOL's position). The court agreed with the DOL position, noting that two other circuits had characterized driving logs as a measure of safety compliance, and driving-log rules as safety regulations. The court held that if a manager of the Respondent had, as the Complainant testified, ordered the co-worker to falsify driving logs, such an order would have been a violation of federal safety regulations and therefore the Complainant's actions protected under the STAA.
V B 1 c ii Testimony at
grievance proceeding
concerning co-
worker's discharge
is protected if
testimony is related
to safety
In cases involving participation, e.g., making complaints or
offering testimony, the discriminatee need not prove the validity
of the underlying claim in order to prevail. Sias v. City
Demonstration Agency, 588 F.2d 692, 694-695 (9th Cir. 1978;
Novotny v. Great Am. Sav. & Loan Ass'n, 539 F. Supp.
437, 449-450 (W.D. Pa. 1982). Rather, the purpose of preserving
unobstructed channels of information is served if individuals are
protected for providing testimony concerning possible
violations. Cf. Pettway v. American Cast Iron Pipe Co.,
411 F.2d at 1007 (charing employee protected despite incorrect
information presented in communication with or proceeding before
regulatory agency). The statutory "relating to"
language does not restrict protection to participation in STAA
proceedings. The language also contemplates participation in DOT
proceedings and proceedings under other Federal, and state laws;
arbitration; and employer hearings.
In the instant case, Complainant's co-worker grieved his
discharge, and Complainant assisted him in challenging the
standards of proof used by Respondent in determining whether
drivers may remain on the sick board or refuse work when ill or
fatigued. If the standards are unreasonably strict, drivers may
feel compelled to work when ill or fatigued, and may encourage
drivers to work in violation of DOT regulations. See 49 C.F.R.
§ 392.3. The Secretary concluded that testimony offered in
a grievance hearing which reveals the manner in which an
employer's sick leave policies may result in violations of DOT
regulations could bear on STAA complaints and investigations, and
protection of employees who participate in such proceedings would
serve the ends of preventing agencies' channels of information
being dried up by employer intimidation.
The Secretary found that the ALJ erred by focusing on the
"true purpose" of the hearing -- rather, "a
proceeding 'relating to' a safety violation is merely one in
which information about safety is disclosed."
GRIEVANCE PROCEEDING MUST RELATE TO SAFETY
VIOLATION FOR TESTIMONY GIVEN AT SUCH PROCEEDING TO BE
PROTECTED UNDER THE STAA
[STAA Digest V A 2 b and V B 1 c ii]
In Yellow Freight System, Inc. v. Reich, No. 95-4135
(6th Cir. Dec. 16, 1996)(unpublished decision available at 1996 U.S. App.
LEXIS 33233)(case below, 89-STA-7), the court rejected the Secretary's
determination that a grievance proceeding of a co-worker at which
Complainant testified, was one relating to a violation of a commercial motor
vehicle safety rule, where the subject of the proceeding was to determine
whether the co-worker had or had not provided medical documentation for his
absence after being on the sick board for an extended period, rather than the
co-worker's fitness for driving. See 49 U.S.C. app. § 2305(a)
(Editor's note: this provision has been re-codified at 49 U.S.C. §
31105).
The court interpreted the Secretary's theory in the matter as follows:
that drivers who placed themselves on the sick board who are required to
provide medical substantiation of their illness may be pressured to return to
work before it is safe for them to do so; in their testimony at the grievance
proceeding, the co-worker and Complainant challenged the medical
substantiation requirement as unreasonable strict; this challenge turned the
grievance proceeding into one relating to a possible safety violation.
The court found, inter alia, that there was no evidence that the
medical substantiation requirement was challenged at the grievance
proceeding, and that "any relationship between the grievance proceeding
and a possible safety rule violation was far too attenuated to trigger the
protections of § 405(a)."
[STAA Digest V B 1 c ii]
PROTECTED ACTIVITY; GATHERING OF EVIDENCE
Gathering evidence to be used to support a protected complaint is itself
protected under
whistleblower provisions. Michaud &
Ass't Sec'y v.
BSP Transport, 95-STA-29 (ARB Jan. 6, 1997), citing Mosbaugh v.
Georgia
Power Co., 91-ERA-1 and 11 , slip
op. at 7-8 (Sec'y Nov. 20, 1995)(tape recording); Adams v. Coastal
Production Operators,
Inc., 89-ERA-3, slip op. at 9 and n.4 (Sec'y Aug. 5, 1992)(photographing
oil spill);
Haney v. North American Car Corp., 81-SDW-1, slip op. at 4 (Sec'y June
30,
1982)(tape recording) (all under analogous employee protection provisions of
other statutes).
V B 1 c 2 Participation in hearing
Disciplining an employee for not being available for work at time
when the employer knows that the employee is participating in a
hearing related to motor carrier safety is an STAA violation.
Nolan v. A.C. Express, 93-STA-38 (Sec'y May 13,
1994) (citing Moyer v. Yellow Freight System, Inc., 89-
STA-7 (Sec'y Oct. 21, 1993).
V B 1 c ii Testimony at grievance proceeding of co-
worker
A complainant's testimony, offered in a grievance proceeding on
behalf of a co-worker, is protected activity under the STAA,
where the proceeding related "to a violation of a commercial
motor vehicle safety rule, regulation, standard, or order
...." In the instant case, the co-worker challenged being
discharged when too ill and impaired to report for driving
duties, and complainant had testified that he personally was
involved in assisting the co-worker during his illness and could
attest to his incapacity.
Moyer v. Yellow Freight Systems, Inc., 89-STA-7
(Sec'y Nov. 21, 1989), aff'd in part and rev'd in part both on
other ground sub nom.,Yellow Freight System, Inc. v.
Martin, 954 F.2d 353 (6th Cir. 1992).
The complaint of a driver/mechanic to OSHA about conditions in
the school bus maintenance shop, including inadequate equipment
for tire repair and the absence of exhaust hoses constitutes
protected activity "relating to" a commercial motor
vehicle safety standard. Jacobson v. Beaver
Transportation, Inc., 92-STA-17 (Sec'y Aug. 31,
1992).
[STAA Digest V B 1 c iii]
PROTECTED ACTIVITY; COMPLAINT TO SUPERVISOR IS PROTECTED EVEN IF
SUCH COMPLAINTS WERE IN NORMAL COURSE OF BUSINESS
In Zurenda v. J&K Plumbing & Heating
Co. Inc., 97-STA-16 (ARB June 12, 1998), the ALJ erred in holding that although
Complainant had engaged in protected activity under STAA when he complained to higher level
management about certain safety issues related to the trucks, Complainant's complaints to his
own supervisor about safety problems did not "rise to the level of protected activity, as the
normal course of business was for Complainant to inform his supervisor as to any repairs that
needed to be made." The ARB held that under the STAA "a safety related complaint
to any supervisor, no matter where that supervisor falls in the chain of command, can be
protected activity." Id. @ 5.
V B 1 c iii Protection of complaints about internal shop
conditions
Complainant's safety complaints were protected under STAA section
405(a) where he complained internally about exposures in the
inadequately ventilated maintenance shop to truck exhaust,
excessive noise, and paint fumes, and where he complained to OSHA
after experiencing extreme dizziness upon inhaling paint fumes.
Working conditions adversely affecting the health of tractor
mechanics could interfere with their inspection, repair, and
maintenance of commercial motor vehicles, resulting in violation
of Department of Transportation regulations. See, e.g.,
49 C.F.R. § 392.3, 393, 396. Such complaints sufficiently
relate to commercial motor vehicle violations to invoke section
405(a) protection. Gay v. Burlington Motor
Carriers, 92-STA-5 (Sec'y May 20, 1992), citing Yellow
Freight System, Inc. v. Martin, 954 F.2d 353, 357 (6th Cir.
1992).
Where the Complainant was stopped by a state highway enforcement
officer, who issued the Complainant a citation for numerous
safety defects and who angrily threatened to impound the
defective truck, and the Complainant explained that he had
repeatedly complained to the Respondent and had reported at least
one of the defects on the vehicle inspection report (which he
showed to the officer), and the Complainant had a heated
discussion about the incident with a superior, the Complainant
was engaged in protected activity under the whistleblower
provision of the STAA. It is not required that the safety
complaints be made to the Department of Transportation or any
other agency. Davis v. H.R. Hill, Inc., 86-STA-18 (Sec'y
Mar. 19, 1987).
Gagnier v. Steinmann Transportation, Inc., 91-STA-
46 (Sec'y July 29, 1992).
V B 1 c iv PROTECTED ACTIVITY; REFUSAL TO PLEAD GUILTY TO
CITATION
In Schuler v. M &
P Contracting, Inc.,
94-STA-14 (ALJ June 14, 1995), adopted (Sec'y Sept. 27,
1995), the Complainant failed to establish that he engaged in
protected activity when he refused to plead guilty to an overload
citation. In order to qualify as protected activity, the
Complainant was required to establish that the refusal to plead
guilty was based in part on safety concerns. The Complainant
only submitted a signed statement that the refusal was
precipitated by a safety concern after he became aware that it
was a required element of a STAA whistleblower complaint.
Previously, he repeatedly indicated that his reasons were a
belief that the Respondent had a contractual obligation to pay
the fine and that he did not want it to affect his driving
record.
Complainant engaged in protected activity when he filed a
complaint with the South Carolina Department of Labor. Nix
v. Nehi-RC Bottling Co., Inc., 84-STA-1 (Sec'y July 13,
1984) (first STAA decision by the Secretary).
Protected activity under the STAA includes expressing support for
a co-worker who has filed a claim of wrongful discharge for
filing a complaint with the state department of transportation.
Ass't Sec'y & Dougherty v. Bjarne Skjetne, Jr. d/b/a
Bud's Bus Service, 94-STA-17 (Sec'y Mar. 16,
1995).
[STAA Whistleblower Digest V B 1 c v]
PROTECTED ACTIVITY; STATEMENT PROVIDED IN CO-WORKER'S GRIEVANCE HEARING
In Cefalu v. Roadway Express, Inc., ARB Nos. 04-103, 04-161, ALJ No. 2003-STA-55 (ARB Jan. 31, 2006), the Complainant provided a statement on behalf of a co-worker who had grieved a discharge for allegedly falsifying his driving log. The Complainant's statement alleged that a superior had asked him to falsify a log in violation of the hours of service regulations. The ARB found that the ALJ correctly found that such testimony related to motor vehicle safety and was therefore protected activity under the STAA.
In Williams v. Capitol Entertainment Services, Inc., ARB No. 05-137, ALJ No. 2005-STA-27 (ARB Dec. 31, 2007), the ALJ erred in concluding that the Complainant engaged in activity protected by 49 U.S.C.A. § 31105(a)(1)(B)(ii), because under that clause a complainant must show that he refused to operate a vehicle, and as a mechanic, the Complainant did not drive or operate any vehicles for the Respondent and therefore his complaints concerning the safety of school buses did not constitute a refusal to drive. The ALJ had characterized the protected activity as a refusal to clear vehicles for service. This was harmless error, however, because the Complainant made internal complaints to his manager concerning the safety of tires and an exhaust system. These complaints related to motor safety regulations regarding the safe operation of a school bus, which were protected activity under 49 U.S.C.A. § 31105(a)(1)(A).
[STAA Whistleblower Digest V B 2]
PROTECTED ACTIVITY UNDER SECTION 31105(a)(1)(B)(I); REFUSAL TO DRIVE REQUIRES PROOF OF ACTUAL VIOLATION; PREPONDERANCE OF THE EVIDENCE STANDARD
Section 31105(a)(1)(B)(i) prohibits an employer from retaliating because an employee refuses to drive when to do so would violate a commercial motor vehicle regulation. A refusal to drive under that subsection is protected only if the record establishes that the driving actually would have violated the motor vehicle regulation at issue. A good faith belief does not suffice. In the instant case, the Complainant failed to establish by a preponderance of evidence that driving would have actually resulted in a violation of the 70 hour/8-day driving rule where substantial evidence supported the ALJ's findings that driver's logs did not support the claim, that the Complainant's estimates and recollections were not reliable because his testimony was one year and nine months after the fact, there was conflicting testimony on key points, and different combinations of the evidence rendered different results on whether the rule would have been violated. Hilburn v. James Boone Trucking, ARB No. 04-104, ALJ No. 2003-STA-45 (ARB Aug. 30, 2005).
[STAA Whistleblower Digest V B 2]
PROTECTED ACTIVITY; WORK REFUSAL; ANALYSIS UNDER THE "ACTUAL VIOLATION" AND "REASONABLE APPREHENSION" SUBSECTIONS
The STAA protects two categories of work refusal, commonly referred to as the "actual violation" and "reasonable apprehension" subsections. While 49 U.S.C.A. §31105(a)(1)(B)(i) deals with conditions as they actually exist, 49 U.S.C.A. §31105(a)(1)(B)(ii) deals with conditions as a reasonable person would believe them to be. Whether a refusal to drive qualifies for STAA protection requires evaluation of the circumstances and the particular requirements of each of the provisions. The actual violation category may be applicable if the operation of the vehicle would have violated the DOT "fatigue rule" at 49 C.F.R. § 392.3 (2003). A complainant must prove that there would be an actual violation of the specific requirements of this rule; mere good-faith belief in a violation is insufficient. The reasonable apprehension category is applicable if the complainant has an objectively reasonable apprehension of serious injury to himself or the public because of the vehicle's unsafe condition, which may include a driver's physical condition, including fatigue. Eash v. Roadway Express, Inc., ARB No. 04-036, ALJ No. 1998-STA-28 (ARB Sept. 30, 2005).
In Bethea v. Wallace Trucking Co., ARB No. 07-057, ALJ No. 2006-STA-23 (ARB Dec. 31, 2007), the ARB affirmed the ALJ's finding that the filing of a workers' compensation claim was not protected activity under the whistleblower provision of the STAA because it is not a complaint related to violation of a motor vehicle safety regulation.
V B 2 a i Refusal to drive because of
fatigue
In Price v. E&M Express Company, Inc., 87-STA-4
(Sec'y Nov. 23, 1987), the Secretary accepted the ALJ's finding
that a complainant who refused to drive a truck because of
fatigue would be engaged in protected activity. Nonetheless the
ALJ dismissed the complaint since he found the Complainant not
credible in his description of events preceding his termination.
[STAA Digest V B 2 a i]
REFUSAL TO DRIVE NOT PROTECTED ACTIVITY IF FEIGNED
In Johnson v. Roadway Express, Inc., ARB No. 99-111, ALJ No.
1999-STA-5 (ARB Mar. 29, 2000), the ARB held that "[w]here a driver's claim of illness
is not legitimate, a refusal to drive is not protected activity." In the instant case, however,
Respondent's attempt to establish through the testimony of a supervisor that Complainant's
illness was feigned, or was not serious enough to preclude driving a commercial motor vehicle,
was not credited by the ALJ, who instead credited the testimony of Complainant and his then
fiancee.
[STAA Digest V B 2 a i]
REFUSAL TO DRIVE; PER SE VIOLATION TO DISCIPLINE IF DRIVER
TOO ILL
In Johnson v. Roadway Express, Inc., ARB No. 99-111, ALJ No.
1999-STA-5 (ARB Mar. 29, 2000), Respondent contended that it had not terminated
Complainant's employment because he was ill, but because his frequent absences violated
Respondent an the Union's mutually agreed upon absenteeism policy. The ARB rejected this
argument, holding that termination of Complainant's employment because he refused to drive
when too ill to do so safely amounts to a per se violation of the STAA's employee
protection provision. See Ass't Sec'y & Ciotti v. Sysco Foods Co. of Philadelphia, ARB
No. 98-103, ALJ No. 1997-STA-30 , slip op.at 8 (ARB July 8, 1998).
[STAA Digest V B 2 a i]
REFUSAL TO DRIVE CLAUSE; ILLNESS
In Scott v. Roadway Express,
Inc., ARB No. 99-013, ALJ No. 1998-STA-8 (ARB July 28, 1999), the ARB
agreed with the ALJ's analysis under the "refusal to drive" clause of the STAA
whistleblower provision, 49 U.S.C. § 31105(a)(1)(B), to the effect that the "'STAA does
not preclude an employer from establishing reasonable methods or mechanisms for assuring that a
claimed illness is legitimate and serious enough to warrant a protected refusal to drive.'"
Id. @ 13, quoting Scott v. Roadway Express, Inc., 1998-STA-8 @ 26 n.23, slip
op. at 29 n.23 (ALJ Nov. 6, 1998) . The ARB also agreed, however, with the ALJ's conclusion that
Complainant's refusals to drive likely would have been found valid under such a review mechanism,
because Complainant produced physician statements excusing him from work due to pain and illness.
The ARB disagreed with the ALJ's conclusion that Respondent violated only the "actual
violation" category of the refusal to drive clause, because "'[a] refusal to drive that is based
on an employee's concern that his or her ability or alertness is materially impaired, conditions that are
addressed by the 'fatigue rule,' may qualify for protection under either the 'reasonable apprehension' or
the 'actual violation' provision of the STAA.'" Id. @ 13, quoting Ass't Sec'y &
Freeze v. Consolidated Freightways, ARB No. 99-030, ALJ No. 1998-STA-26, slip op. at 7
(ARB Apr. 22, 1999), and cases there cited. The ARB nonetheless concluded that it need not
determine whether there also was a violation of the "reasonable apprehension" category
because it would not alter the remedies to which Complainant was entitled.
[STAA Digest V B 2 a i]
REFUSAL TO DRIVE BECAUSE OF ILLNESS IS PROTECTED ACTIVITY ONLY IF
THE ILLNESS IMPAIRS THE DRIVER'S ABILITY TO DRIVE SAFELY
A refusal to drive because of illness is not necessarily protected activity under STAA;
rather, to be protected, a refusal to drive must be based on an illness that impairs the driver's
ability to drive safely. See 49 C.F.R. §392.3 (1997). An employer may take action
against employees who feign illness, and the STAA does not prohibit an employer from
establishing reasonable methods or mechanisms for assuring that a claimed illness is legitimate
and serious enough to warrant a protected refusal to drive. Ass't Sec'y & Ciotti v. Sysco Foods Co. of
Philadelphia, 97-STA-30 @ 7-8 and nn.7-8 (ARB July 8, 1998) (in instant case,
however, there was substantial evidence that Complainant's illness was not fabricated and that
Respondent had reason to know that; application of absenteeism policy to Complainant under
circumstances was violation of STAA's antiretaliation provision).
PROTECTED ACTIVITY; REFUSAL TO DRIVE AFTER
ALTERCATION
[STAA Digest V B 2 a]
In Logan v. United Parcel Service, 96-STA-2 (ARB
Dec. 19, 1996), Complainant asked to be relieved of further driving after an
altercation with a manager regarding provision of Complainant with uniform
pants. The Board agreed with the ALJ that this was protected activity because
Complainant asked to be relieved from driving because he was clearly too
distressed to drive and Respondent was aware of it. See 49 U.S.C.
§ 31105(a)(1)(B)(i). The Board noted a distinction from a section
31105(a)(1)(B)(ii) refusal, which has a "reasonableness"
component.
WORK REFUSAL; EMOTIONAL STATE AFTER ADMONISHMENT BY
SUPERVISOR
[STAA Digest V B 2 a i]
In Palinkas v. United Parcel Service, 95-
STA-30 (Sec'y Mar. 7, 1996), the Secretary accepted the
ALJ's recommendation that a work refusal was not protected
under the facts of the case. Although the Complainant
alleged that he was very upset and could not drive because
of his emotional state after being admonished by a
supervisor, the ALJ noted that the Complainant had driven
home in his girlfriend's car, and that the Complainant had
not taken medication or consulted a physician. The ALJ
concluded that the Complainant was simply angry because of
the rebuke, and decided that he was not going to complete
his run. Palinkas v. United Parcel Service,
95-STA-30 (ALJ Dec. 13, 1995).
PROTECTED ACTIVITY; WORK REFUSAL BASED ON POSSIBLE
IMPAIRMENT
[STAA Digest V B 2 a i]
In Brown v. Wilson
Trucking Corp., 94-STA-54
(Sec'y Jan. 25, 1996), the ALJ erred in his narrow
interpretation of the scope of the employee protection
provision of the STAA. The ALJ had concluded that refusal
to drive is protected only where it arises out of concern
for "truck safety defects, ... driving ... in violation
of a federal rule,[or] ... the hours of the driver and the
safety of the vehicle and its contents." Slip op. At 3-
4, quoting ALJ's R.D. & O at 16. Because the
Complainant's work refusal related to pumping a hazardous
chemical after the drum was removed from the truck, the ALJ
concluded that there was no protected activity under the
STAA.
The Secretary noted that he has held, and the courts
agreed,
that the STAA protects an employee who refuses to drive when
he or she believes, in good faith, that he or she is too ill
or fatigued to operate a truck safely. In
Brown, the Complainant's allegation was that
his lack of training in pumping a hazardous chemical out of
the drum had resulted in a spill and that exposure to the
chemical had impaired his ability to drive; the Secretary
indicated that if the Complainant was correct that this
sequence of events was likely to recur, an STAA complaint
may be cognizable. There was much countervailing evidence,
however, and the Secretary remanded the case for further fact
finding.
V B 2 a 1 STAA work refusal based on illness or physical
condition
An employee's refusal to drive based on illness or physical
condition may constitute protected conduct under both the
"when" clause and the "because" clause of
section 2305(b). Self v. Carolina Freight Carriers Corp.,
89-STA-9 (Sec'y Jan. 12, 1990), slip op. at 9; see Mace v. NA
Delivery Systems, Inc., 91-STA-10 (Sec'y Jan. 27, 1992), slip
op. at 7-8.
Smith v. Specialized Transportation Services, 91-
STA-22 (Sec'y Apr. 20, 1992).
A complainant is not precluded from prevailing on a claim of
physical inability to drive safely where she does not submit
expert opinion evidence. Smith v. Specialized
Transportation Services, 91-STA-22 (Sec'y Apr. 20, 1992)
(the Secretary, however, found that considering the evidence as a
whole, complainant had failed to carry her burden).
A refusal to drive because of illness may constitute protected
activity under either the "when" clause or the
"because" clause of 49 U.S.C. § 2305(b). Smith
v. Specialized Transportation Services, 91-STA-22 (Sec'y Apr.
30, 1992). Lorenz v. H & J Manufacturing
Services, 92-STA-26 (ALJ Dec. 17, 1992), aff'd
(Sec'y Apr. 7, 1993). Even if the complainant was ill enough
to establish that his work refusal fits generally under the
protection under the Act, the Complainant still has the burden
of explaining to his employer that he is ill and that because of
this condition he cannot drive without creating a danger to
himself or to the public at large. It is not enough simply to
state that he is not feeling well.
In Lorenz, the Complainant contended that his refusal to
drive while sick would violate DOT regulation section 392.3,
which states:
No driver shall operate a motor vehicle, and a motor
vehicle carrier shall not require or permit a driver to
operate a motor vehicle, while the driver's ability or
alertness is so impaired, through fatigue, illness or any
other cause, as to make it unsafe for him to begin or
continue to operate the motor vehicle.
Under the "when" cause, the Complainant had the burden
of establishing that his illness so impaired his ability to drive
as to make vehicle operation unsafe. Under the
"because" clause, his burden was to establish that his
illness was of a nature that a reasonable person would determine
that there was a bona fide danger to his personal safety or to
the public if he had driven.
The ALJ found that the Complainant had acted out of pique rather
than illness in refusing to accept the driving assignment.
Furthermore, the ALJ found that the Complainant did not establish
communication of a safety related reason for the work refusal
when he simply asserted "I'm sick. I'm going home,"
where in view of the events that had just taken place it would
have been reasonable for supervisor to interpret that this was
nothing more than a statement made in the heat of anger. The ALJ
compared Smith, in which the Secretary concluded that the
Complainant's statement that she was not well and unable to work
could reasonably have been interpreted as backlash from an
earlier argument.
[STAA Whistleblower Digest V B 2 a iii]
PROTECTED ACTIVITY; REASONABLE APPREHENSION; PRE-TRIP INSPECTION BASED ON DRIVER'S GENERALIZED DESIRE TO SATISFY HIMSELF THAT THE VEHICLE IS SAFE
In Calhoun v. United Parcel Service, 2002-STA-31 (ALJ June 2, 2004), the Complainant was disciplined for making pre-trip inspections that were more extensive than the Respondent's standard procedure. Although the ALJ found that such inspections were protected activity under the "refusal to drive" provision at 49 U.S.C. § 31105(a)(1)(B) and the "actual violations" provision at 49 U.S.C. § 31105(a)(1)(B)(i), he found that they were not protected activity under the "reasonable apprehension of serious injury" provision at 49 U.S.C. § 31105(a)(1)(B)(ii). The ALJ found that the Complainant had not shown that the assigned vehicles were unsafe, and that his inspections were based only on his generalized desire to satisfy himself that his vehicles were safe, and not any mechanical problems, physical conditions or weather conditions which, at the time he refused to drive, would have led a reasonable person to fear for his or her safety or that of others.
[STAA Whistleblower Digest V B 2 a iii]
REASONABLE APPREHENSION CLAUSE; CORRECTION OF UNSAFE CONDITION IN NOTIFICATION OF ILLNESS CASE
In Wrobel v. Roadway Express, Inc., ARB No. 01 091, ALJ No. 2000 STA 48 (ARB July 31, 2003), the ARB clarified how the "correction of the unsafe condition" requirement of the reasonable apprehension provision of section 31105(a)(1)(B)(ii) applies in a case involving refusal to drive based on an assertion of illness. The Board wrote: "[t]he reasonable apprehension provision expressly requires that the employee had >sought from the employer, and been unable to obtain correction of the unsafe condition.' 49 U.S.C.A. § 31105(a)(2). Thus, in order to show that he had sought and been unable to obtain correction of the unsafe condition, Wrobel would have had to provide Roadway with adequate information that it was unsafe for him to drive. The mere assertion that he was >sick,' particularly under the circumstances presented [evidence casting significant doubt on the credibility of the assertion that he was sick, was inadequate to do so." Slip op. at n.4.
[STAA Whistleblower Digest V B 2 a iii]
PROTECTED ACTIVITY; REASONABLE APPREHENSION CLAUSE; ASKING FOR
ANOTHER TRUCK RATHER THAN REPAIR OF ASSIGNED TRUCK IS SUFFICIENT FOR
COVERAGE UNDER 31105(a)(2)
In Petit v. American Concrete Products,
Inc., 1999 STA 47 (ALJ Apr. 27, 2000), the ALJ found that because the
Complainant had merely asked for another truck to drive, rather than seeking repair of the
assigned truck, he was not protected by STAA, section 31105(a)(2) . That section provides that
(when the basis of the employee protection is a refusal to drive due to reasonable apprehension
of serious injury, "the employee must have sought from the employer, and been unable
to obtain, correction of the unsafe condition." 49 U.S.C. § 31105(a)(2). On review,
in Pettit v. American Concrete Products, Inc., ARB No. 00 053, ALJ No.
1999 STA 47 (ARB Aug. 27, 2002), however, the ARB held that this ruling was not consistent
with the body of relevant case law, citing, among other decisions, Jackson v. Protein
Express, ARB No. 96 194, ALJ No. 1995 STA 38, slip op. at 2 4 (ARB Jan. 9, 1997), in
which complainant's request for repair of truck or another truck to drive met his obligation to
seek correction of unsafe condition.
V B 2 a ii Complainant's lack of legroom does not equate
with a reasonable fear of an unsafe condition
In Ass't Sec'y & Beard v. Apar Brokerage, 94-
STA-39 (Sec'y May 3, 1995), the Complainant refused to drive a
truck based on his perception that the cab lacked sufficient
legroom to be operated safely. After considering all the
evidence, the ALJ concluded that although the truck was
uncomfortable for the Complainant, the Complainant did not
reasonably fear an unsafe condition, and therefore the refusal to
drive was not protected. The Secretary accepted the ALJ's
recommendation. See 49 U.S.C. § 31105(a)(1)(B)(ii);
Yellow Freight Sys., Inc. v. Reich, 38 F.3d 76, 82 (2d
Cir. 1994).
One motor vehicle safety standard covered by STAA section 2305(b)
is the driver fatigue rule. DOT regulation 49 C.F.R. §
392.3. Yellow Freight Systems, Inc. v. Reich, No.
93-1205 (4th Cir. Oct. 29, 1993) (available at 1993 U.S. App.
LEXIS 28378).
[STAA DIGEST V B 2 a iv] PROTECTED ACTIVITY; FATIGUE; COMPLAINANT'S FAILURE TO GET ENOUGH REST TO DRIVE DOES NOT, PER SE,
REMOVE STAA PROTECTION
In Eash v. Roadway Express, Inc., ARB Nos. 02-008 and 02-064, ALJ No. 2000-STA-47 (ARB Mar. 13, 2006), PDF
the ARB in an earlier decision had, inter alia, affirmed the ALJ's grant of summary decision to the Respondent on the ground that,
under Porter v. Greyhound Bus Lines, ARB No. 98-116, ALJ No. 1996-STA-23 (ARB June 12, 1998), the STAA
does not protect an employee who, through no fault of the employer, makes himself unavailable for work (in
this instance by not getting enough rest to be ready to drive). Both parties appealed to the Sixth Circuit. At the motion
of the Solicitor of Labor, who was representing the ARB, the Sixth Circuit remanded on this issue (the Sixth
Circuit affirmed the ARB on another issue). The remand was based on the circumstance that in another case involving the same parties and similar facts, the ARB had reversed the ALJ.
In the meantime, the ARB issued another decision involving the same parties in which the ARB held that the
ALJ in that case erred as a matter of law when he concluded that the Complainant was not entitled to
protection under the STAA because he had deliberately made himself available for work, finding in that case
that the ALJ had misapplied Porter. Thus, in the instant case on remand from the Sixth Circuit, the ARB
vacated that portion of the decision that conflicted with its later ruling and remanded the case to the ALJ for
further proceedings.
[STAA Whistleblower Digest V B 2 a iv]
PROTECTED ACTIVITY; FATIGUE BREAKS DURING RUN ARE NOT PROTECTED ACTIVITY WHERE THE COMPLAINANT REPEATEDLY SHOWS UP FOR WORK INADEQUATELY RESTED
In Blackann v. Roadway Express, Inc., No. 04-4026 (6th Cir. Dec. 15, 2005) (unpublished) (available at 2005 WL 3448280) (case below ARB No. 02-115, ALJ No. 2000-STA-38), the Sixth Circuit affirmed the ARB's holding that the Respondent discharged the Complainant due to his repeated reporting for duty when he was simply too tired to perform that duty, and not because of taking STAA-protected fatigue breaks. The court stated that "the purposes of the STAA would not be well served by permitting an employee to chronically report for duty aware of the strong probability that he would not be able to finish a driving shift in a timely fashion, and then claim STAA protection when his employer takes adverse action." Slip op. at 6.
[Editor's note: The Sixth Circuit's decision is unclear as to the precise basis on which the ARB is being affirmed -- that the fatigue breaks were not protected activity -- or that the Complainant failed to establish a causal link between protected activity and his discharge -- or, as a concurring member of the Sixth Circuit panel found, because the Employer articulated a legitimate non-discriminatory reason for the discharge which the Complainant failed to show was pretext.]
[STAA Whistleblower Digest V B 2 a iv]
PROTECTED ACTIVITY; WORK REFUSAL; ACTUAL VIOLATION; QUALITY OF SLEEP
The ARB affirmed the ALJ's finding that the Complainant had failed to establish that he was so tired that driving would actually violate the DOT fatigue rule where the Complainant testified that he needed six hours of sleep in a 24 hour period to function adequately, and the evidence showed that he had accumulated more than six hours of sleep in the period before the two dispatches at issue. The ALJ had considered the Complainant's evidence of scientific studies about the quality of fragmented and daytime sleep, the effect of environmental conditions, and being awakened during a principal sleep period, but nonetheless found that the Complainant had not established that there would have been an actual violation of the DOT rule. Eash v. Roadway Express, Inc., ARB No. 04-036, ALJ No. 1998-STA-28 (ARB Sept. 30, 2005).
[STAA Whistleblower Digest V B 2 a iv]
PROTECTED ACTIVITY; WORK REFUSAL; DELIBERATE FAILURE TO GET ENOUGH REST; RESPONDENT'S COMPLIANCE WITH RULES
The ALJ construed Ass't Sec'y & Porter v. Greyhound Bus Lines, ARB No. 98-116, ALJ No. 1996-STA-23 (ARB June 12, 1998), as compelling a finding that the Complainant was not engaged in protected activity by refusing a dispatch where he deliberately made himself unavailable for work by not taking advantage of time off to get enough rest. The ARB found that the ruling in Porter had created some confusion -- that it did not create a per se exception to the fatigue rule -- rather evidence that the complainant made himself unavailable for work is only one factor to consider. Similarly, a finding that the respondent's operating rules and procedures comply with hours of service regulations or that the respondent did not contribute to the complainant's fatigue do not necessarily remove STAA protection. Eash v. Roadway Express, Inc., ARB No. 04-036, ALJ No. 1998-STA-28 (ARB Sept. 30, 2005).
[STAA Whistleblower Digest V B 2 a iv] WORK REFUSAL; FAILURE OF COMPLAINANT TO GET SUFFICIENT REST; WHETHER THAT FAILURE WAS DELIBERATE IS A MATERIAL ISSUE OF FACT
In Eash v. Roadway Express, Inc., ARB No. 00 061, ALJ No. 1998 STA 28 (ARB Dec. 31, 2002), the ALJ had granted summary judgment on the ground that there was no genuine issue of material fact as to whether Complainant had made himself unavailable for work, accepting Respondent's contention that Ass't Sec'y of Labor and Porter v. Greyhound Bus Lines, ARB No. 98 116, ALJ No. 96 STA 23 (ARB June 12, 1998), holds that "[t]he Act does not protect an employee who through no fault of the employer, has made himself unavailable for work."
The ARB, however, essentially found that Porter was based on a driver "deliberatively" making himself unavailable for work. In the instant case, although Complainant had not gotten the necessary rest to be ready when called for duty, the ARB concluded that a material issue of fact remained regarding the circumstances surrounding Complainant's fatigue.
[STAA Digest V B 2 a iv]
REFUSAL TO WORK BECAUSE OF FATIGUE
In Somerson v. Yellow Freight System, Inc., 1998-STA-9 and 11 (ALJ
Feb. 18, 1999), the ARB reviewed the law relating to refusal to work because of fatigue. The
following is an excerpt from that discussion:
A driver's refusal to work because of fatigue may be
determined to be protected activity either under STAA Section 31105(a)(1)(B)(i)
(operation violates a federal regulation, e.g. the fatigue regulation at 49 C.F.R.
§392.3) or Section 31105(a)(1)(B)(ii) (employee has a reasonable apprehension of
serious injury because of the unsafe condition of a vehicle). In order to prove a fatigue
related claim under subsection (i), a complainant must prove that operation of the vehicle
would in fact violate the specific requirements of the fatigue rule. As we held in
Cortes v. Lucky Stores, Inc., slip op. at 4 (quoting Yellow Freight Systems v.
Martin, 983 F.2d 1195, 1199 (2d Cir. 1993)):
To establish a violation of the provision at
Subsection (B)(i) of the STAA, a complainant "must show that
the operation [of a motor vehicle] would have been a genuine violation of
a federal safety regulation at the time he refused to drive -- a mere good
faith belief in a violation does not suffice."
A violation of this provision is established where it is proven that the driver's
"ability or alertness was so impaired as to make vehicle operation unsafe."
Smith v. Specialized Transportation Services, Case No. 91-STA-22, Sec. Final
Dec and Ord., Apr. 30, 1992, slip op. at 6.
The protections under subsection (ii), which are applicable
whenever there is a serious safety issue, are considerably broader and are applicable even
when the DOT safety regulations do not directly and specifically address the safety
concern. However, in order to prove a fatigue related claim under subsection (ii), a
complainant must prove that "a reasonable person in the same situation would
conclude that there was a reasonable apprehension of serious injury if he drove."
Byrd v. Consolidated Motor Freight, ARB Case No. 98-064, ALJ Case. No.
97-STA-9, ARB Final Dec. and Ord., May 5, 1998, appeal filed, May 27, 1998
(11th Cir.).
Under this standard, a driver's claim of fatigue, standing in
isolation and without context, is insufficient for protection under the STAA to attach.
Instead, the Secretary, and now the Board, examines the facts surrounding each incident
to determine if a reasonable person in the circumstances would have been justified in
refusing an assignment due to fatigue. In practice, most drivers have found little difficulty
meeting this standard when the circumstances of the driver's refusal to work point clearly
to the immediate cause of the driver's fatigue concerns.
Somerson, 1998-STA-9 @ 13-14 (footnotes omitted).
[STAA Whistleblower Digest V B 2 a iv]
DRIVER FATIGUE; PRACTICE OF REAWAKENING DRIVERS TO PERFORM BRIEF TASKS; DOL'S CONCERN IS WHETHER SPECIFIC FACTS EVINCE PROTECTED ACTIVITY
In Stauffer v. Wal-Mart Stores, Inc., ARB No. 00-062, ALJ No. 1999-STA-21 (ARB July 31, 2001), the record was replete with evidence and argument about the issue of the human body's daily cycle ("circadian rhythm") and its relationship to a driver's ability to be alert and drive safely. Complainant argued that Respondent's "Custom Night Receiving System" which sometimes required drivers to be awakened from their sleep to perform brief tasks, such as shuttling trailers, is illegal as implemented because it contributes to driver fatigue.
The ARB recognized the importance of the issue of driver fatigue, but held that
To the extent that Stauffer is arguing that a facially lawful scheduling policy does not adequately protect drivers and the public, he effectively is calling for a change in current DOT safety regulations a remedy beyond the Labor Department's authority under the STAA. As we have noted before, this type of policy argument must be addressed to the DOT, which (unlike the Department of Labor) has both legal authority and technical expertise in the field.
This is not to say, however, that the Department of Labor has no role to play in driver safety complaints. Our concern, however, is comparatively narrow. Rather than addressing the global concern that Stauffer raises (i.e., whether it generally is an unsafe practice to require drivers to operate their vehicles after being awakened from the normal sleep cycle), our concern is whether a specific refusal to drive is protected activity under the STAA under the facts presented.
Slip op. at 7-8 (citation omitted). In Complainant's case, the record failed to establish a case under either the "actual or anticipated fatigue causing impairment" analysis (§ 31105(a)(1)(B)(i)) or "reasonable apprehension of serious injury related to fatigue" analysis (§ 31105(a)(1)(B)(ii)).
The ALJ had found Complainant's testimony less than credible because it was argumentative, contradictory and unclear -- and the ARB declined to disturb the ALJ's credibility finding. The ARB also noted that Complainant's claim of impairment due to fatigue was undercut by the fact that he parked the trailer and then drove five miles to another store to spend the night after refusing the assignment to shuttle trailers. Moreover, the ARB found the testimony of Complainant's expert in sleep disorders not to be persuasive because he had not examined or even met Complainant prior to the hearing, because it was equivocal, and because he did not clearly identify the reasoning or methodology underlying his conclusions. Finally, the ARB observed in regard to the reasonable apprehensive issue that neither Complainant nor other drivers who testified could point to any specific instances of fatigue causing a serious injury while shuttling vehicles while working for Respondent.
[STAA Digest V B 2 a iv]
ON-CALL SYSTEM THAT ALLEGEDLY IS INHERENTLY PRONE TO CREATE
FATIGUE PROBLEMS
In Somerson v. Yellow Freight System, Inc., 1998-STA-9 and 11 (ALJ
Feb. 18, 1999), one Complainant appeared to argue that Respondent's on-call system, with its
uncertain work schedule, is inherently prone to create a "chronic fatigue"
problem for casual drivers (workers who may be called for driving assignments after the list of
regular bid drivers and extra-board drivers has been exhausted) and therefore results in intense
(and unlawful) pressure on drivers to work while dangerously tired.
The Board found that there was no evidence on the record that Respondent's
implementation of its dispatch system for casual drivers violated any specific DOT regulation.
The Board wrote:
To the extent that Somerson is arguing generally that Yellow Freight's casual
driver dispatch system -- which complies with DOT Hours of Work regulations --
nonetheless is deficient because it inevitably results in a violation of a second DOT
regulation -- the fatigue rule -- we believe that his challenge is addressed to the wrong
forum. Although we do not here decide the question whether a dispatch system that meets
DOT standards might nonetheless raise a viable whistleblower complaint as applied in a
specific individual case, it is beyond our authority under the STAA to address the kind of
wholesale challenge to a facially-lawful dispatch system urged upon us by Somerson. In
essence, by raising a general challenge to the dispatch system as creating a problem with
chronic driver fatigue, Somerson is arguing that the DOT Hours of Service regulation
needs to be modified to insure that drivers have predictable rest schedules. We express no
opinion on the merits of Somerson's argument, but simply note that this Board has neither
the authority nor the expertise to address this issue, which is entrusted by statute to the
Department of Transportation.
Somerson, 1998-STA-9 @ 16-17.
[STAA Digest V B 2 a iv]
"ANTICIPATORY FATIGUE"
In Byrd v. Consolidated Motor
Freight, 97-STA-9 (ARB May 5, 1998), Complainant refused to take a sleeper
run because he believed that he would become too fatigued to drive safely; at that time, however,
he was well rested and ready to drive other runs; he refused simply because he believed he would
not get enough rest in the cab. The ARB found that Complainant, who was well rested, was not
reasonably apprehensive about public safety, citing evidence of record to the effect that he could
have stopped the truck and rested without repercussion. The ARB cited Brandt v. United
Parcel Service, 95-STA-26 (Sec'y Oct. 26, 1995), for the standard for evaluating a claim of
anticipatory fatigue.
[STAA Digest V B 2 a iv]
FATIGUE; EMPLOYEE HAD ADEQUATE TIME FOR REST
In Ass't Sec'y & Porter v. Greyhound Bus
Lines, 96-STA-23 (ARB June 12, 1998), the ARB deferred to an arbitration ruling
that Respondent did not violate the STAA whistleblower provision when it discharged
Complainant for refusing to work. The arbitrator had found that Complainant had adequate time
(three days) to be rested and available for work. The ARB agreed with the ALJ that "the
arbitration decision dealt adequately with the factual issues in the case and reached an outcome
that was not repugnant to the purpose of the STAA." Id. @ 2. The
ARB stated that
Simply claiming that he was "sleepy" when called by Greyhound
... is not enough to show that Complainant reasonably believed he was too fatigued to
take the assignment. It is also not sufficient to show that an actual violation of the fatigue
rule would have occurred if Complainant had accepted the assignment. 49 U.S.C.A.
§31105(a)(1)(B)(i). ... We agree with the ALJ that the STAA does not protect an
employee who, through no fault of the employer, has made himself unavailable for work.
Id. @ 3.
[STAA Digest V B 2 a iv]
REFUSAL TO DRIVE BASED ON FATIGUE; FEDERAL SAFETY REGULATION
CLAUSE
In Cortes v. Lucky Stores,
Inc., 96-STA-30 (ARB Feb. 27, 1998), Complainant failed to establish
that his
discharge violated STAA, 49 U.S.C. § 31105(a)(1)(B)(i), based on a refusal to drive
because of fatigue, see 49 C.F.R. § 392.3 (1996), where there were 15 to 16
hours
between the dispatch and the report time. A subsection (B)(i) complaint must be based on a
genuine violation, not a mere good faith belief in a violation. SeeBrandt v.
United
Parcel Service, 95-STA-26 (Sec'y Oct. 26, 1995).
[STAA Digest V B 2 a iv]
REFUSAL TO DRIVE BASED ON FATIGUE; REASONABLE APPREHENSION
CLAUSE
In Cortes v. Lucky Stores,
Inc., 96-STA-30 (ARB Feb. 27, 1998), Complainant failed to establish
that his
discharge violated STAA, 49 U.S.C. § 31105(a)(1)(B)(ii), when he refused to drive
based
on fatigue. a subsection (B)(ii) complaint focuses on whether a reasonable person in the same
situation would conclude that there was a reasonable apprehension of serious injury. The ARB
agreed with the ALJ's finding that Complainant's testimony that he was falling asleep during
his
earlier shift was not credible. Thus, where Complainant relied on only self-serving testimony
that he needed two days off to rest after a regular work week, and gave no reason why he
could
not rest and sleep during the at least 14 hours he had to rest before reporting to work, the ARB
concluded that a reasonable person in the same circumstance as Complainant would not
conclude
that his ability or alertness would be impaired such that a violation of the fatigue rule would
have
occurred.
V B 2 a iv Complaints about long hours and resulting
fatigue
Complaints to managers about long hours and resulting fatigue are
sufficient to establish a prima facie case of protected activity
pursuant to STAA section 405(b). Ass't Sec'y & Brown v. Besco Steel Supply, 93-
STA-30 (Sec'y Jan. 24, 1995).
V B 2 a iv Work refusal based on fatigue
A complainant engages in protected activity when he or she
refuses to take an assignment on the belief that he or she was
too fatigued to make the run safely. 49 C.F.R. § 392.3. Polger v. Florida Stage Lines, 94-STA-46 (Sec'y
Apr. 18, 1995).
V B 2 a iv Sleeping when fatigued
Where the complainant stopped driving and rested due to
"driver fatigue," and that he was fatigued was
supported by the fact that he had been awake for 19.5 hours
awaiting dispatch and driving, the complainant engaged in
protected activity under STAA section 405(b) when he ceased
driving in order to sleep. Hornbuckle v. Yellow Freight
System, Inc., 92-STA-9 (Sec'y Dec. 23, 1992).
V. B. 2. a. iv. Fatigue; physical condition
In Webb v. Hickory Springs, Inc., 94-STA-20 (Sec'y
Aug. 5, 1994), the evidence established that Complainant was
fatigued, and that he engaged in protected activity when he
complained about fatigue and refused to drive while fatigued.
Complainant "refusal" came in the form of inadvertently
falling asleep.
Nonetheless, the record revealed that these activities did not
motivate Respondent to suspend the Complainant. Specifically,
the person who suspended Complainant did not even know about
Complainant being fatigued until well after he had made the
suspension decision. Thus, there was no prima facie showing of
discrimination under section 405(a).
Based on credibility of the witnesses, it was found in regard to
the work refusal issue that the Respondent suspended the
Complainant for insubordination rather than protected activity.
V B 2 a iv STAA; Protected activity; fatigue
A complainant's refusal to drive based on an assertion of fatigue
did not constitute protected activity under STAA, 49 U.S.C. app.
§ 2303, where the complainant had not physically or mentally
exerted himself during the 19 hours preceding his call by the
dispatcher. The Administrative Law Judge distinguished Gaibis
v. Werner Continental, 565 F. Supp. 1538 (W.D. Pa. 1983), in
which the court found that the employer's dispatch policy which
did not permit drivers to "book-off" or refuse dispatch
when fatigued, violated 49 C.F.R. § 392.3 and 49 U.S.C. app.
§ 2305, on the ground that in the case sub judice the
employer had complied with regulatory and union contract
provisions relating to hours off duty. The Administrative Law
Judge stated that "the employer's compliance with those
provisions is meaningful since it rules out fatigue on a work-
related basis and absent awareness of significant mental or
physical exertion on some other basis, a dispatcher might
reasonably assume that a driver is fully able to drive
safely." Torbet v. Delta/McLean Trucking Co.,
86-STA-12 (ALJ Mar. 26, 1991), aff'd mem., 86-STA-12
(Sec'y May 24, 1991).
V B 2 a iv Declining to work or continue driving
due to fatigue
A Complainant engaged in protected activity when he declined a
dispatch due to fatigue, declined to continue driving due to
fatigue, and when he complained about or "protested"
discipline received because of these work refusals and because he
had counseled other drivers about DOT regulations.
Smith v. Yellow Freight System, Inc., 91-STA-45
(Sec'y Mar. 10, 1993), slip op. at 13.
V. B. 2. a. iv. Fatigue; physical condition
Violations of the "because clause" involve more than
problems with the mechanical parts of a motor vehicle. Forcing
an ill or fatigued driver to drive may constitute a violation.
Under the "because clause," it is necessary to
ascertain whether the complainant's refusal to drive because of
fatigue was reasonable under the circumstances.
When a driver had more than 80 on-duty hours in the previous
seven days, it is reasonable for him or her to feel fatigued.
The because clause also requires that the driver sought, and was
unable to obtain, correction of the unsafe condition.
Paquin v. J.B. Hunt Transport, Inc., 93-STA-44
(Sec'y July 19, 1994) (evidence did not establish that the
Complainant told his employer about the hours issue).
V. B. 2. a. iv. Fatigue; physical condition
In Webb v. Hickory Springs, Inc., 94-STA-20 (Sec'y
Aug. 5, 1994), the evidence established that Complainant was
fatigued, and that he engaged in protected activity when he
complained about fatigue and refused to drive while fatigued.
Complainant "refusal" came in the form of inadvertently
falling asleep.
Nonetheless, the record revealed that these activities did not
motivate Respondent to suspend the Complainant. Specifically,
the person who suspended Complainant did not even know about
Complainant being fatigued until well after he had made the
suspension decision. Thus, there was no prima facie showing of
discrimination under section 405(a).
Based on credibility of the witnesses, it was found in regard to
the work refusal issue that the Respondent suspended the
Complainant for insubordination rather than protected activity.
V B 2 a iv Refusal to work due to fatigue
Where the complainant refused to operate a commercial motor
vehicle due to his fatigue, his refusal constitutes protected
activity. See 49 C.F.R. § 392.3. Self v.
Carolina Freight Carriers Corp., 91-STA-25 (Sec'y Aug. 6,
1992).
V.B.2.a.iv. Protected activity; fatigue
Section 2305(b) of the STA provides that it is unlawful to
discriminate against any 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." According the
section 392.3 of the Federal Motor Carrier Safety Regulations,
"no driver shall operate a motor vehicle, while the driver's
ability or alertness is so impaired, or so 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." Thus, in Sickau v. Bulkmatic Transport
Co., 94-STA-26 (ALJ June 22, 1994), the ALJ found that
the complainant had engaged in a protected activity when he
refused to take an assignment because he was too fatigued and
because the number of hours the run would have taken would have
put the complainant above the maximum number of driving and on-
duty hours as set by regulation by the Department of
Transportation.
V. B. 2. a. iv. Fatigue; physical condition
Violations of the "because clause" involve more than
problems with the mechanical parts of a motor vehicle. Forcing
an ill or fatigued driver to drive may constitute a violation.
Under the "because clause," it is necessary to
ascertain whether the complainant's refusal to drive because of
fatigue was reasonable under the circumstances.
When a driver had more than 80 on-duty hours in the previous
seven days, it is reasonable for him or her to feel fatigued.
The because clause also requires that the driver sought, and was
unable to obtain, correction of the unsafe condition.
Paquin v. J.B. Hunt Transport, Inc., 93-STA-44
(Sec'y July 19, 1994) (evidence did not establish that the
Complainant told his employer about the hours issue).
Where the Complainant was found to have refused to drive 2,000
miles to Oregon in part because he was in pain or was drowsy due
to medication, the refusal to drive was protected activity under
the "when clause" of the STAA.
Palazzolo v. PST Vans, Inc., 92-STA-23 (Sec'y Mar.
10, 1993).
[STAA Whistleblower Digest V B 2 a v]
PROTECTED ACTIVITY; INFORMING THE EMPLOYER ABOUT A SEDATIVE PRESCRIPTION MEDICATION; INABILITY TO UNLOAD
The Complainant did not engage in protected activity merely by informing his employer about having been prescribed a medication for a back condition that had possible sedative side effects where the physician who prescribed the medication had not imposed any driving restrictions, the Complainant had not taken the medication that date and was not experiencing any side effects, the Complainant had indicated that he could safely complete his driving assignment that day, and he in fact did safely complete the drive. Similarly, the Complainant did not engage in protected activity when he voiced a concern about not being able to unload furniture due to a back condition. Safley v. Stannards, Inc., ARB No. 05-113, ALJ No. 2003-STA-54 (ARB Sept. 30, 2005).
In Calhoun v. United Parcel Service, ARB No.
04-108, ALJ No. 2002-STA-31 (ARB Sept. 14, 2007), the Complainant argued that
he had the responsibility under the FMCSR, 49
C.F.R. 392.7 and 396.13, to assure himself that his assigned truck was in safe
operating condition before he drove it. The Complainant argued that he
had the right to conduct the inspection to his standards no matter how long it
took.� The ARB rejected this contention, holding that the Complainant could complain about the
safety of his vehicle during or following inspections pursuant to 49 C.F.R. ��
392.7 and 396.13, but that, under the complaint clause of the STAA, he had to
be at least be acting on a reasonable belief regarding the existence of a
safety violation. The ARB stated that this standard required the
Complainant to prove that a person with his expertise and knowledge would have
a �reasonable belief� that the Respondent�s inspection methods were in
violation of the regulations and that the Complainant�s use of the Respondent�s
pre-trip inspection methods would lead the Complainant to reasonably believe
that the truck was not in good operating order and safe to drive.� In the
instant case, the record was not only devoid of evidence that the Respondent�s
pre-trip inspection methods violated the regulations, but contained substantial
evidence showing that its methods exceeded both industry practice and the
requirements of the FMCSRs.
[STAA Digest V B 2 b] PROTECTED ACTIVITY; REFUSAL TO DRIVE; DRIVING UNDER PROTEST IS NOT A REFUSAL TO DRIVE
In Calhoun v. United Parcel Service, ARB No.
04-108, ALJ No. 2002-STA-31 (ARB Sept. 14, 2007), the Complainant argued that
he engaged in protected activity when he drove under protest because he was not
able to conduct the pre-trip inspection according to his own methods, but was
required to use the Respondent�s methods.�� The ALJ found that a conditional
refusal to drive satisfied the �refusal to drive� element of a prima facie case
under the STAA.� The ARB disagreed, holding that the plain language of 49
C.F.R. �� 31105 (a)(B)(i or ii) limits protection under this section to a
person who �refuses to drive.�� Thus, the Complainant could not seek protection
under the refusal to drive provision of the STAA for his driving under protest.
[STAA Digest V B 2 b] PROTECTED ACTIVITY; REFUSAL TO
DRIVE; TAKING ONESELF OUT OF SERVICE BECAUSE OF PERSONAL UPSET OVER BEING
SUPERVISED DURING A PRE-TRIP INSPECTION IS NOT PROTECTED ACTIVITY
In Calhoun v. United Parcel Service, ARB No.
04-108, ALJ No. 2002-STA-31 (ARB Sept. 14, 2007), the Complainant took himself
out of service because he was too upset to drive because he was being required
to conduct his pre-trip inspection in the presence of his supervisor and a shop
steward.� The ARB held that this was not protected activity under the refusal
to drive provisions of the STAA because the Complainant did not refuse to drive
because to he was concerned about an actual violation of a FMCSR or because he
had a reasonable concern about injury to himself or the public because of his
vehicle�s unsafe condition.
[STAA Whistleblower Digest V B 2 b]
PROTECTED ACTIVITY; REFUSAL TO DRIVE; FAULTY WINDSHIELD WIPER
In Roberts v. Marshall Durbin Co., ARB Nos. 03-071 and 03-095, ALJ No. 2002-STA-35 (ARB Aug. 6, 2004), the ARB affirmed the ALJ's finding that the Complainant engaged in protected activity when he refused to drive a truck which had defective windshield wipers. The ALJ found that driving the truck in such condition would be a literal violation of DOT regulation 49 CFR § 392.7. The Complainant's supervisor argued that common sense was necessary -- that it was a sunny day, and the Complainant was only asked to drive nine miles to a repair facility. The ARB, however, found nothing in the DOT regulation or DOT interpretations that give the driver discretion to drive in such circumstances. Although the Respondent presented Appendix A of the North American Standard Vehicle Out-of-Service Criteria, which indicates that a vehicle need only be placed out of service due to faulty wipers in the event of inclement
weather, the ARB found that these criteria only applied to authorized safety inspections of vehicles on the road. Later in the decision, however, the ARB found that the "reasonable apprehension of serious injury" clause of the STAA whistleblower provision was not applicable because there was no evidence that the defective wipers alone presented any threat of serious injury to the Complainant or the public under the circumstances.
[STAA Digest V B 2 b]
PROTECTED ACTIVITY; COMPLAINT ABOUT UNCOMFORTABLE SEAT
In Jackson v. Wyatt Transfer, Inc., ARB No. 04-012, ALJ No. 2000-STA-57 (ARB Dec. 30, 2004), the ARB rejected the Complainant's contention that he engaged in protected activity when he complained that his assigned truck did not have a seat that oscillated, and therefore caused discomfort in his back. The Board noted that the Complainant had sought to link an uncomfortable seat with safety, but held that the Complainant's apprehension that an uncomfortable seat is an unsafe condition did not appear to have been reasonable.
[STAA Whistleblower Digest V B 2 b]
PROTECTED ACTIVITY; REASONABLE APPRENHENSION OF SERIOUS INJURY; FAULTY WINDSHIELD WIPER
In Roberts v. Marshall Durbin Co., ARB Nos. 03-071 and 03-095, ALJ No. 2002-STA-35 (ARB Aug. 6, 2004), the ARB affirmed the ALJ's finding that the Complainant engaged in protected activity when he refused to drive a truck which had defective windshield wipers. The ALJ found that driving the truck in such condition would be a literal violation of DOT regulation 49 CFR § 392.7. The Complainant's supervisor argued that common sense was necessary -- that it was a sunny day, and the Complainant was only asked to drive nine miles to a repair facility. The ARB, however, reversed the ALJ's finding that the Complainant's refusal to drive was also protected under the "reasonable apprehension of serious injury" clause of the STAA, 49 U.S.C. § 31105(a)(1)(B)(ii). The ARB found that the Complainant had not presented any evidence that the defective wipers alone presented any threat of serious injury to the Complainant or the public under the circumstances (no threat of rain; short drive to repair shop).
V B 2 b Refusal to work, defective vehicle
In Thom v. Yellow Freight System, Inc., 93-STA-2
(Sec'y Nov. 19, 1993), the Secretary adopted the ALJ's finding
that a tractor's inability to maintain speed created a hazard on
an interstate highway where the flow of traffic was 55-65 mph and
where "ruts" had been imposed during highway
resurfacing (resulting in difficulty controlling fishtailing due
to lower tension between trailers at lower speed), and that
Complainant reasonably apprehended serious injury due to the
unsafe condition.
The Secretary agreed with the ALJ that the "because"
clause of section 405(b) should be construed broadly to apply to
conditions rendering operation of a commercial motor vehicle
hazardous, citing
Roadway Exp., Inc. v. Dole, 929 F.2d 1060, 1062-
1063 (5th Cir. 1991) (hazardous ice storm)
Robinson v. Duff Truck Line, Inc., 86-STA-3
(Sec'y Mar. 6, 1987), aff'd on other grounds sub nom.,
Duff Truck Line, Inc., v. Brock, No. 87-3324 (6th Cir.
May 4, 1988) (unpublished decision available at 1988 U.S.
App. LEXIS 9164; table case at 848 F.2d 189) (adverse road
conditions; tractor difficult to handle on ice and snow due
to its type of tires and the fact that the front end tended
to rise)
Palmer v. Western Truck Manpower, 85-STA-6 (Sec'y
Jan. 16, 1987), aff'd, No. 92-70231 (8th Cir. Sept. 27,
1993) (unpublished decision available at 1991 U.S. App.
LEXIS 21675; table case at 943 F.2d 56) (improperly loaded
but otherwise sound tractor trailer).
Cf. Consolidation Coal v. Federal Mine Safety &
Heath, 795 F.2d 364 (4th Cir. 1986) (work refusal
protected where miner questioned safety of procedure
utilizing locomotive and "trailing motor" to brake
runaway "trip" of coal haulage cars).
Under these cases, the Secretary expressly has rejected the
argument that section 405(b) is limited to situations where the
equipment is mechanically defective.
See Palmer v. Western Truck Manpower, 85-STA-6
(Sec'y Jan. 16, 1987), aff'd, No. 92-70231 (8th Cir.
Sept. 27, 1993) (unpublished decision available at 1991 U.S.
App. LEXIS 21675; table case at 943 F.2d 56), slip op. at
19: "the section by section analysis of [Section
405(b)], prepared by the Senate Commerce Committee which
reported out the legislation, noted that 'it is intended to
assure that employees are not forced to drive unsafe
vehicles or commit unsafe acts.' 128 Cong. Rec. 29192
(1982).")
Whether a condition is sufficiently hazardous requires the
exercise of judgment and ordinarily is made on the basis of
information available at the time of the refusal. Duff Truck
Line, Inc. v. Brock, slip op. at 5. That the assignment is
successfully completed standing alone does not necessarily prove
that the mission was safe. Id., slip op. at 7.
[STAA Whistleblower Digest V B 2 b]
PROTECTED ACTIVITY; REFUSAL TO DRIVE UNTIL COMPLAINANT'S PRE-TRIP INSPECTION ROUTINE WAS COMPLETED
In Calhoun v. United Parcel Service, 2002-STA-31 (ALJ June 2, 2004), the Complainant was disciplined for making pre-trip inspections that were more extensive than the Respondent's standard procedure. The ALJ found that such inspections were protected activity under the "refusal to drive" clause of 49 U.S.C. § 31105(a)(1)(B), even though in each instance the Complainant eventually drove the vehicle. The ALJ distinguished Zurenda v. J&K Plumbing & Heating Co. Inc., ARB No. 98-088, ALJ No. 1997-STA-16 (ARB June 12, 1998), on the ground that the ALJ had found in that case that the evidence supporting the safety related nature of the employee's conditional refusal to drive was not credible, whereas in the instant case it was beyond question that the Complainant's refusals to drive until he completed pre-trip inspections were safety related.
[STAA Whistleblower Digest V B 2 b]
PROTECTED ACTIVITY; DOT REGULATIONS UNDER § 3105(a)(1)(B)(ii)
DOT regulations governing transportation of hazardous loads at 49 C.F.R. § 397.17 do not require inspection of tires on non placard loads every two hours or 100 miles (whereas they do on placarded loads). Thus, an STAA Complainant who routinely performed such inspections on non placard loads was not engaged in protected activity for purposes of 49 USCA § 3105(a)(1)(B)(i). Similarly, the ARB found that Complainant's claim that such inspections were supported by DOT regulations at 49 C.F.R. § 392.7, 396.1 and 396.13, which are general instructions on inspections and driver satisfaction on good working order of the vehicle, could not be interpreted as requiring two hour/100 mile tire inspections absent FHA/DOT guidance so mandating. Monde v. Roadway Express, Inc., ARB No. 02 071, ALJ Nos. 2001 STA 22 and 29 (ARB Oct. 31, 2003).
V B 2 b Mechanical problems
Violations of the "because clause" involve more than
engine defects, failed brakes, and other problems with the
mechanical parts of a motor vehicle. For example, forcing an ill
or fatigued driver to drive may constitute a violation. Smith
v. Specialized Transportation Services, 91-STA-22 (Sec'y Apr.
30, 1992), slip op. at 3 and cases there cited. In Lajoie v.
Environmental Management Systems, Inc., 90-STA-31 (Sec'y Oct.
17, 1992), slip op. at 3, 9, the Secretary found that an
inoperative "hook-up light" at the rear of a cab was an
unsafe condition because of the potential for serious injury when
the driver reasonably could expect to work in darkness. A greasy
coating on a cab's windshield and mirrors was found to be an
unsafe condition in Zessin v. ASAP Express, Inc., 92-STA-
33 (Sec'y Jan. 19, 1993).
In the case under review, the Secretary found that a significant
deterioration of the integrity of the body of a truck's cab
likewise may constitute an unsafe condition, since in a crash the
body likely would offer less protection to the driver, or a
portion of the cab's body could detach while in operation. Thus,
Complainant had a reasonable apprehension of injury to himself
and to others because of the condition of the cab.
Dutile v. Tighe Trucking, Inc., 93-STA-31 (Sec'y
Nov. 29, 1993).
V B 2 b Refusal to drive
One of the requirements for a prima facie case under the
"because clause" of the STAA, 49 U.S.C. app. §
2305(b), is that the employee seek correction of the unsafe
condition from his or her employer before refusing work.
In Dutile v. Tighe Trucking, Inc., 93-STA-31 (Sec'y
Nov. 29, 1993), Complainant's refusal to drive a unit because its
condition was unsafe was construed by the Secretary as an attempt
to get his employer to do more substantial repairs. SeeZessin v. ASAP Express, Inc., 92-STA-33 (Sec'y Jan. 19,
1993) (violation of "because clause" found where
manager walked away when employee raised issue of safety defects,
thereby effectively preventing the employee from seeking
correction of unsafe condition).
Where the complainant refused to drive an overweight truck and
communicated to the respondent that his refusal was based on the
potential violation of federal regulations and a safety concern
for himself and the public, and where the complainant refused the
respondent's proposal for correcting the overweight problem
because it required him to drive 240 miles with the overweight
load, the complainant engaged in protected activity under the
STAA § 2305(b). Galvin v. Munson Transportation,
Inc., 91-STA-41 (Sec'y Aug. 31, 1992).
[STAA Digest V B 2 c]
PROTECTED ACTIVITY; ACTUAL VIOLATION CLAUSE; COMPLAINANT'S SUBJECTIVE ASSESSMENT THAT IT WOULD HAVE VIOLATED A STATE "REASONABLE AND PRUDENT" SPEED LAW TO HAVE MAINTAINED THE SPEED REQUESTED BY HIS EMPLOYER IS NOT PROOF OF AN ACTUAL VIOLATION
In Krahn v. United Parcel Service of America, Inc., ARB No. 04-097, ALJ No. 2003-STA-24 (ARB May 9, 2006),
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the Board assumed for purposes of deciding the appeal that the Complainant's refusal to follow a manager's instructions regarding brake usage and maintaining speed was a conditional refusal to drive covered under section 31105(a)(1)(B). The Complainant alleged that his refusal to increase or maintain his speed as requested by the manager was protected activity under the "actual violation" provision of section 31105(a)(1)(B)(i) because to comply would have violated a state law providing that a driver must not drive faster than what is "reasonable and prudent under the circumstances...." The Board rejected this contention because, other than his general allegation that it would have been unsafe, the Complainant had "not identified a single specific incident where following [the manager's] instructions ... would have resulted in an actual violation of [the state law]." USDOL/OALJ Reporter at 9. The Complainant's subjective assessment that he would have violated the state law was not proof of an actual violation.
[STAA Digest V B 2 c]
PROTECTED ACTIVITY; REASONABLE APPREHENSION CLAUSE; COMPLAINANT'S SUBJECTIVE ASSESSMENT THAT HIS METHOD OF OPERATING THE VEHICLE WAS THE SAFEST WITHOUT PROOF THAT THE HAZARDS ALLEGED ACTUALLY PRESENTED THEMSELVES WAS AN INSUFFICIENT JUSTIFICATION FOR REFUSING TO MAINTAIN THE SPEED REQUESTED BY HIS EMPLOYER
In Krahn v. United Parcel Service of America, Inc., ARB No. 04-097, ALJ No. 2003-STA-24 (ARB May 9, 2006),
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the Board assumed for purposes of deciding the appeal that the Complainant's refusal to follow a manager's instructions regarding brake usage and maintaining speed was a conditional refusal to drive covered under section 31105(a)(1)(B). The maximum posted speed on the Complainant's route was 75 miles per hour, but the Respondent's policy was not to exceed 65 miles per hour. The Complainant routinely drove much slower. The Complainant alleged that his refusal to increase or maintain his speed as requested by the manager was protected activity under the "reasonable apprehension" provision of section 31105(a)(1)(B)(ii) based on his testimony that the Respondent's vehicles were, in most instances, unsafe at 65 miles per hour. The ARB rejected this contention because the Complainant did not provide any support for his contention, and because the record reflected that three other regularly assigned drivers on the same route routinely completed the trip in less time than the Complainant without incident. The Board acknowledged that the Complainant was a safety-conscious individual -- but without identifying that any potential hazards actually presented themselves --
the Complainant's "own subjective assessment that his way of operating the vehicle was the safest method is not sufficient justification for refusing to follow [his manager's] instructions." USDOL/OALJ Reporter at 12.
[STAA Digest V B 2 c]
PROTECTED ACTIVITY; REFUSAL TO DRIVE IN AREA WHERE THERE HAD BEEN RANDOM SNIPER SHOOTINGS
In Cummings v. USA Truck, Inc., ARB No. 04-043, ALJ No. 2003-STA-47 (ARB Apr. 26, 2005), the Complainant was scheduled to drive a load of cargo from Ohio to Virginia via the Washington, D.C., area. Because random sniper shootings were occurring in the Washington, D.C. area at that time, Cummings states that he refused to drive the cargo to Virginia as he feared for his safety. The Respondent fired him the same day.
The Complainant argued that to drive under such circumstances would constitute a violation of the prohibitions against carriers requiring or permitting the operation of a motor vehicle in hazardous conditions pursuant to 49 C.F.R. § 392.14 or the operation of a motor vehicle in an unsafe condition pursuant to 49 C.F.R. § 396.7. The ARB rejected this argument, finding that to invoke protection under 49 U.S.C.A. § 31105(1)(B)(i), a complainant must allege and ultimately prove that an actual violation would have occurred. The Board stated that contrary to the Complainant's assertion, a reasonable and good faith belief by the driver alone that it is unsafe to drive is not enough. Moreover, the ARB stated that the hazardous conditions described at Section 392.14 are only those conditions affecting visibility or traction which would make it unsafe to operate a commercial motor vehicle.
[STAA Whistleblower Digest V B 2 c]
PROTECTED ACTIVITY; REFUSAL TO DRIVE INTO REGION IN WHICH SNIPER SHOOTING WERE OCCURING
In Cummings v. USA Truck, Inc., 2003 STA 47 (ALJ Jan. 9, 2004), the ALJ recommended dismissal of a complaint that was based on the Complainant's refusal to take a driving assignment that would have taken him through the Washington, DC area during a period of sniper shooting in that region. The complaint was not based on allegation that the Complainant was either asked to violate a commercial vehicle regulation nor an apprehension that his safety was at risk due to the unsafe condition of the vehicle. The ALJ found that the Complainant's apprehension that a sniper might be present on the route did not fall within the employee protections provided for in the STAA. The ALJ also found that, considering the millions of persons who went to work in the region at time, any allegation that the Complainant was exposed to an unreasonable risk of danger was unavailing.
[STAA Digest V B 2 c]
REFUSAL TO PARK AND UNLOAD
Refusal to unload a truck from the roadside would constitute protected activity if the
refusing driver has a reasonable apprehension of serious injury. Garcia v. AAA Cooper Transportation,
1998-STA-23 (ARB Dec. 3, 1998). In Garcia, the only evidence Complainant
presented to support the reasonableness of his concern about the safety of unloading was his own
testimony. Respondent, however, presented testimony of two employees who that same day
were able to assess the situation with the same trailer used by Complainant, and who found that
the delivery could be made safely. Respondent also presented evidence from two employees of
the customer who reported that deliveries were made daily from trucks parked on the street, and
that in fact a UPS truck was making a delivery at the same time as Complainant's aborted
delivery. Finally, Respondent also presented evidence that other of its drivers routinely made
deliveries to the same location without problems or safety concerns. The ARB found, therefore,
that substantial evidence supported the ALJ's conclusion that Complainant failed to prove that
his safety concerns were reasonable. Thus, Complainant did not engage in protected activity
under the STAA.
PROTECTED ACTIVITY; WORK REFUSAL BASED ON WEATHER
CONDITIONS
[STAA Digest V B 2 c]
A driver can refuse to drive based on a reasonable
belief
that observed snowfall will create a hazardous situation.
Cleary v. Flint Ink, Corp., 94-STA-52 (Sec'y
Mar. 4, 1996). In Cleary, however, the
Secretary held that, given the evidence presented and the
changing nature of the weather, the Complainant was not
reasonable in assuming that the roads would be unnavigable
sixteen hours after his decision not to drive. In addition,
the Complainant's supervisor had given the Complainant the
option to commence his run earlier than scheduled or to wait
until the scheduled time.
V B 2 c PROTECTED ACTIVITY; COVERAGE OF MESSENGER UNDER
STAA
In Caimono v. Brinks, Inc., 95-STA-4 (ALJ
Sept. 7, 1995), the ALJ concluded that the activities of a
messenger for an armored car company are generally not covered by
the whistleblower provision of the STAA insofar as they relate to
personal safety from outside interference as opposed to potential
injury from the operation of the vehicle. The ALJ also concluded
that, even assuming Complainant's allegations of unsafe
conditions were covered activities, he had not carried his burden
showing that he had a reasonable apprehension of serious
injury to himself or the public.
V B 2 c Unsafe Conditions
Section 2305(b) protects an employee's refusal to drive equipment
where the employee has a "reasonable apprehension of serious
injury to himself or the public due to the unsafe condition of
such equipment." The Secretary construed this provision to
apply to weather conditions, which make operation of a commercial
vehicle on the road a safety hazard. The Secretary reasoned that
where driving is hazardous as a result of weather conditions, the
equipment becomes unsafe on the road. Robinson v. Duff Truck
Line, Inc., 86-STA-3 (Sec'y Mar. 6, 1987), aff'dDuff Truck Line, Inc. v. Brock, 48 F.2d 189 (6th Cir.
1988)(per curiam) (unpublished decision available at 1988
U.S.App. 9164).
V B 2 c Refusal to drive a shifted load is protected
activity under both the "when" and
"because" clauses of the Act
In Newkirk v. Cypress Trucking Lines, 88-STA-17
(Sec'y Feb. 13, 1989), Complainant was employed by Respondent as
a truck driver. Respondent told Complainant to pick up a trailer
that had already been loaded and transported locally a distance
of several miles. After pulling the trailer a distance of about
100 yards, Complainant noted that the trailer was very heavy.
Upon weighing the load it was evident that the load had shifted
forward and could no longer be hauled safely. Complainant
refused to haul the shifted load. When the president of the
Respondent corporation discovered that the load had not been
delivered, he reportedly said either "fire [the
Complainant]" or "get rid of him." Six days
later, Complainant was terminated.
The Secretary held that Complainant's refusal to haul the shifted
load qualified as protected activity under both the
"when" (federal violation) and "because"
(reasonable apprehension) clauses.
V B 2 c When the violation occurs
The question of whether a driver's refusal to drive his truck
constituted a refusal to operate a vehicle in violation of a
federal regulation was dependent on whether section 392.14
applies only when the driver is on the road or also applies
before he begins his assigned run. The Secretary noted that the
intent of the regulation is to prohibit the driving of commercial
motor vehicles in adverse weather conditions unless such vehicles
can be operated safely. The Secretary held that applying the
regulation only when hazardous weather conditions are encountered
after dispatch from the terminal is to create the absurd
situation of drivers being compelled to take their vehicles at
least out of the gate in order to avoid driving in sufficiently
dangerous conditions. The Secretary found that since the
Complainant refused to drive from the start, there was a federal
regulation which could have been violated had the Complainant
been forced to drive. Robinson v. Duff Truck Line,
Inc., 86-STA-3 (Sec'y Mar. 6, 1987), aff'dDuff
Truck Line, Inc. v. Brock, 48 F.2d 189 (6th Cir. 1988)(per
curiam)(unpublished decision available at 1988 U.S.App.
9164).
V B 2 c No chains in the vehicle
A Complainant's refusal to drive because there were no chains in
the vehicle was not protected activity because there is no
federal safety regulation that requires keeping chains in a
commercial motor vehicle, and where there was uncontradicted
testimony that the Respondent assumed the cost of renting chains
and that the Complainant could have obtained them if weather
conditions so required.
Palazzolo v. PST Vans, Inc., 92-STA-23 (Sec'y Mar.
10, 1993).
In Bethea v. Wallace Trucking Co., ARB No. 07-057, ALJ No. 2006-STA-23 (ARB Dec. 31, 2007), the ARB noted that voicing concerns about scheduling which did not implicate hours of service rules is not protected activity under the STAA.
[STAA Whistleblower Digest V B 2 d]
PROTECTED ACTIVITY; REFUSAL TO DRIVE; INCOMPLETE OR INACCURATE POST-TRIP REPORT
In Roberts v. Marshall Durbin Co., ARB Nos. 03-071 and 03-095, ALJ No. 2002-STA-35 (ARB Aug. 6, 2004), the ALJ found that the Complainant engaged in protected activity when he refused to drive because post-trip reports were inaccurate and a supplementary report was allegedly falsified. The ARB found that such defects in post-trip reports, standing alone, do not necessarily justify a refusal to drive under 49 U.S.C. § 31105(a)(1)(B)(i). Although not making a conclusive holding in this regard, the ARB's decision implies that a short drive and a pre-trip inspection could "override" an incomplete or inaccurate post-inspection report, and that a DOT interpretation specifically permits a substitute post-trip report to be created when, in unusual circumstances, the post-trip report is missing.
V B 2 d Distinction between
refusal to drive and
refusal to begin rest
break
The Complainant failed to establish protected activity pursuant
to 49 C.F.R. § 392.3 (regulation prohibiting driving in a
fatigued condition) or 49 C.F.R. § 395.3(a)(2) (prohibition
on driving when the driver had been on duty 15 hours following 8
consecutive hours off duty) in an STAA whistleblower complaint
where the Complainant was not instructed to drive, but rather to
begin an eight hour rest break in the sleeper berth. The
Secretary generally agreed with the ALJ's analysis, but disavowed
certain conclusions the ALJ made about bifurcated rests periods.
Brothers v. Liquid Transporters, Inc., 89-STA-1
(Sec'y Feb. 27, 1990), slip op. at 3-8.
V B 2 d Refusal to drive based on break of sleeping
pattern; presumption that regulation establishes
baseline of safe operation
In Brandt v. United Parcel Service, 95-STA-26 (ALJ
June 29, 1995), the Complainant refused a driving assignment on
the ground that he would be too fatigued to drive safely as a
result of his having to change his sleeping pattern, although he
had more than 24 hours notice of the assignment, and he admitted
that taking the assignment would not have violated the hours of
service rules set out in Part 395 of 49 C.F.R. The Complainant
supported his complaint with the assertion that safety laws
should be liberally construed, and with articles documenting the
extent of the problem of fatigue in the trucking industry,
explaining the circadian rhythm (the biological clock that
controls sleep patterns) and the need a person of several days to
adjust to a new rhythm, and explaining that there is a high
correlation between subjective feelings of sleepiness and some
objective physiologic changes.
The ALJ held that the hours of service rules establish a
presumption of safe operation that can be rebutted by evidence
showing circumstances peculiar to a particular situation. Based
on the scant evidence before him, the ALJ concluded that the
Complainant had not shown that his refusal to take the assignment
was protected activity.
The ALJ went on to find that, even assuming the Complainant
engaged in protected activity, the Respondent had a valid
business reason for terminating the Complainant -- if the
Complainant could not change his sleeping pattern, he was not
suitable for a job that required flexible drivers. The ALJ
concluded that "[i]f it is true in general that disrupting a
driver's sleep pattern is likely to result in dangerous driving,
the hours of service rules should reflect this general truth.
V B 2 d Refusal to drive; hours of service
Refusing to drive when the contemplated run would cause the
driver to violate the Federal hours of service regulation is
protected activity under STAA section 405(b). Ass't Sec'y & Brown v. Besco Steel Supply, 93-
STA-30 (Sec'y Jan. 24, 1995).
5 B 2 d Refusal to violate hours of service regulation
The STAA prohibits an employer from discharging an employee for
refusing to operate a vehicle in violation of a Federal
regulation, 49 U.S.C. § 2305(b), including the hours-of-
service regulations at 49 C.F.R. Part 395. See Hamilton v.
Sharp Air Freight Service, Inc., 91-STA-49 (Sec'y July 24,
1992), slip op. at 1-2. Greathouse v. Greyhound Lines,
Inc., 92-STA-18 (Sec'y Aug. 31, 1992).
V B 2 d Hours of service; completion of inspection
reports against wishes of respondent
The complainant in Green v. Creech Brothers
Trucking, 92-STA-4 (Sec'y Dec. 9, 1992), engaged in
protected activity when he
complained to DOT following an accident which he felt
was the result of excessive hours of service. In the
complaint he also noted that the respondent didn't want
him recording defects in the log book
complained to his superiors about concerns of unsafe
tires
complained to his superiors about fatigue and refused
to operate a commercial vehicle after having remained
on duty for 15 hours
regularly completed vehicle inspection reports against
the wishes of the respondent. The Secretary concluded
that under the circumstances of the case, the
complainant's persistence in completing the form in
compliance with 49 C.F.R. § 396.11 to ensure its
availability to DOT served as a continuing
"complaint" to the respondent about its
policy.
V B 2 d Refusal to violate hours of service
regulation
A driver is protected in refusing to drive a dispatch that
contemplates a violation of the hours-of-service regulations.
Settle v. BWD Trucking Co., Inc., 92-STA-16 (Sec'y
May 18, 1994) (citing Trans Fleet Enterprises v. Boone,
987 F.2d 1000, 1004 (4th Cir. 1992).
V B 2 dRefusal to violate hours of
service regulation
The Complainant failed to establish that he engaged in protected
activity where the evidence established that the Complainant
routinely declined to use the most direct highway route from the
point of dispatch to designation, increasing the
"practical" route miles by a significant amount, and
where the Respondent established using driver logs that the most
practical route would have eliminated several of the over-hours
violations. Judd v. Helena Truck Lines, Inc., 91-
STA-48 (Sec'y Apr. 7, 1993).
V. B. 2. d. Refusal to violate hours of service
regulation; protected activities
Refusing to drive when the contemplated run would cause the
driver to violate the hours of service regulation, 49 C.F.R.
§ 395.3, is a protected activity under the "when
clause." That regulation provides in relevant part, that a
truck driver shall not drive after "[h]aving been on duty 70
hours in any period of 8 consecutive days if the employing motor
carrier operates motor vehicles every day of the week." 49
C.F.R. § 395.3(b)(2).
Paquin v. J.B. Hunt Transport, Inc., 93-STA-44
(Sec'y July 19, 1994).
V B 2 d Refusal to violate hours of service
regulation
Refusal to drive when the contemplated run would cause the driver
to violate the hours of service regulations is protected activity
under the STAA. Waldrep v. Performance Transport,
Inc., 93-STA-23 (Sec'y Apr. 6, 1994), citing Trans
Fleet Enterprises, Inc. v. Boone, 987 F.2d 1000, 1004 (4th
Cir. 1992).
V. B. 2. d. Refusal to violate hours of service regulation;
protected activities
Refusing to drive when the contemplated run would cause the
driver to violate the hours of service regulation, 49 C.F.R.
§ 395.3, is a protected activity under the "when
clause." That regulation provides in relevant part, that a
truck driver shall not drive after "[h]aving been on duty 70
hours in any period of 8 consecutive days if the employing motor
carrier operates motor vehicles every day of the week." 49
C.F.R. § 395.3(b)(2).
Paquin v. J.B. Hunt Transport, Inc., 93-STA-44
(Sec'y July 19, 1994).
V B 2 d STAA when clause, prospective violation
The operation of a vehicle may constitute a violation of 49
U.S.C. app. § 2305(b) either presently or over time
prospectively where it is inevitable that a violation must occur;
there is no requirement in this provision that the driver's
operation of the vehicle must immediately violate a federal rule
or regulation.
Thus, where a violation of DOT driving time regulations, 49
C.F.R. § 395.3 is necessarily contemplated in a dispatch
order, albeit at a somewhat later time, the order is regarded as
requiring the operation of a motor vehicle contrary to federal
rules and regulations, and consequently a driver's refusal is
protected under the STAA provision which prohibits an employer
from discharging an employee for refusing to operate a motor
vehicle "when such operation constitutes a violation of any
federal rules, regulations, standards or orders applicable to
commercial motor vehicle safety." 49 U.S.C. app. §
2305(b).
The Secretary distinguished Brothers v. Liquid Transporters,
Inc., 89-STA-1 (Sec'y Feb. 27, 1990), in which it was held
that a driver without available driving hours may be ordered to
begin a run by resting in the sleeper berth while his partner
drives because the Brothers complainant was only
instructed to begin a rest break and not to operate a commercial
motor vehicle, and because in Brothers there was no
mandatory delivery time requiring violation of Department of
Transportation driving time regulations.
Boone v. TFE Inc., 90-STA-7 (Sec'y July 17,
1991).
Refusing to drive with a dangerous driver is protected activity
under the reasonable apprehension clause of section 405(b) of the
STAA, if the refusing driver has a reasonable apprehension of
serious injury. Bryant v. Bob Evans Transportation, 94-STA-24
(Sec'y Apr. 10, 1995).
In Bryant, Complainant's assertion that the
assigned co-driver was unsafe, together with the testimony of two
other drivers that the complained of driver was unsafe in certain
conditions, was sufficient to establish the protected activity
element of a prima facie case. The Secretary, however, found
that the Complainant did not carry his ultimate burden of
persuasion on the issue of protected activity because the
Complainant failed to establish that his belief that the other
driver was an unsafe driver was reasonable. The Respondent had
presented evidence that the other driver's driving was
satisfactory.
The Secretary noted that the Complainant's good faith belief that
another driver was not a safe driver is not, standing alone,
sufficient to prove a violation under the reasonable apprehension
clause. Such a violation must be based upon more than a
subjective good faith belief -- it must be objectively
reasonable.
REFUSAL TO DRIVE; PROVING WEATHER CONDITIONS
[STAA Digest V B 2 e]
In Ass't Sec'y &
Vilanj v. Lee & Eastes Tank Lines, Inc., 95-STA-
36 (Sec'y Apr. 11, 1996), the complaint was based on the
Complainant's refusal to drive due to adverse weather
conditions. See 49 C.F.R. § 392.14. To
invoke protection under 49 U.S.C. § 31105(a)(1)(B)(i), a
complainant must prove that an actual violation would have
occurred; a reasonable and good faith belief that it is
unsafe to drive is not enough -- the weather conditions must be
in fact such that a vehicle cannot be operated safely.
The Secretary, however, observed that determining whether
weather conditions prohibited safe operation requires a
subjective judgment. The determination is ordinarily made on the
basis of information available at the time. It is not reserved
to the driver alone, but it is also the duty of the carrier to
determine whether the vehicle can be safely operated under
existing conditions.
In Vilanj, the ALJ found that conditions were
not sufficiently dangerous that the Complainant could not have
safely driven a tank truck carrying hazardous materials.
Although accepting that the ALJ's findings of fact were supported
by substantial evidence, the Secretary disagreed with the ALJ's
inferences and conclusions, and found that the Complainant should
prevail.
The Secretary also relied on the fact that under an
applicable collective bargaining agreement, the driver is deemed
to be the best judge as to the seriousness of the situation in
deciding whether to proceed.
V B 2 e The Complainant's Evidence Demonstrated that
the Refusal of a Driving Assignment with a
Particular Co-driver Constituted a Protected
Activity; the Employer's Discharge for Such
Refusal was Actionable under the Surface
Transportation Assistance Act
The complainant refused to accept a driving assignment with a
particular co-driver, contending that the co-driver fell asleep
at the wheel on prior occasions and took too many breaks to make
the trip feasible within the allotted time. Given the co-
driver's propensities, complainant maintained that he would be
forced to drive more than the regulatory permissible ten
consecutive hours and that refusal of the assignment was based on
his apprehensions regarding safety. The employer contended that
the question of the co-driver's propensity to fall asleep was
never raised by the complainant prior to discharge. It also
introduced evidence of the co-driver's competency as a driver.
The Secretary adopted the ALJ's findings that the complainant had
been engaged in protected activity when discharged, that a causal
link had been established, and that the employer had failed to
rebut the complainant's prima facie case. Taylor v.
Broadhead and Ryder Distribution Resources, 91-STA-14
(Sec'y Feb. 11, 1992).
V B 2 e Unsafe co-driver
Section 2305(b) of the STAA covers refusals to drive because of
safety concerns over an assigned co-driver rather than solely
refusals based on the unsafe condition of a vehicle.
Taylor v. Broadhead, 91-STA-14 (Sec'y Feb. 11,
1992), citing Self v.Carolina Freight Carriers Corp., 89-
STA-9 (Sec'y Jan. 12, 1990) (indicating that the physical
condition of a driver that could affect the safe operation of the
equipment would fall under the "because" clause of
section 2305(b)); also citing Mace v. ONA Delivery Systems,
Inc., 91-STA-10 (Sec'y Jan. 27, 1992).
Scheduling a run in a manner that requires the driver to exceed
applicable local speed limits is a violation of a Federal motor
carrier safety regulation. Nolan v. AC Express, 92-STA-37 (Sec'y Jan. 17,
1995), citing 49 C.F.R. § 392.6 (1993), and
McGavock v. Elbar, 86-STA-5 (Sec'y July 9, 1986), slip op.
at 7.
V B 2 f STAA; refusal to speed as protected
activity
An employee's stated refusal to drive over the speed limit in the
future, in a situation where the carrier's policies required
drivers to violate Department of Transportation speeding
regulations, is protected activity under the STAA provision which
prohibits an employer from discharging an employee for refusing
to operate a motor vehicle "when such operation constitutes
a violation of any federal rules, regulations, standards or
orders applicable to commercial motor vehicle safety."
McGavock v. Elber, Inc., 86-STA-5 (Sec'y July 9,
1986).
Where the complainant refused to further move his truck to a
parking lot or to "cripple" it back to respondent's
office because the truck's brakes were defective, complainant's
refusal constituted protected conduct under the first "work
refusal" circumstance of section 2305(b) because operating
the truck would have violated a federal regulation applicable to
commercial motor vehicle safety. See 49 C.F.R. §
392.7. LeBlanc v. Fogelman Truck Lines, Inc., 89-STA-8
(Sec'y Dec. 20, 1989), slip op. at 2-4, aff'd, No. 90-4114
(5th Cir. Apr. 17, 1991).
Wilson v. Bolin Associates, Inc., 91-STA-4 (Sec'y
Dec. 30, 1991).
V B 2 g Moving equipment to safe location
In Green v. Creech Brothers Trucking, 92-STA-4
(Sec'y Dec. 9, 1992), the complainant's moving equipment to a
safe location brought into play both the "when" and
"because" clauses of STAA section 405(b). The
Secretary found that the alternative "operation" of the
vehicle, parking it on the traveled portion of the highway
This practice generally is prohibited under 49 C.F.R.
§ 392.21 unless it is impracticable to move the
vehicle.
in inclement conditions with poor visibility while awaiting and
performing tire replacement, presented precisely the hazard of
serious injury to the complainant and the public that 49 C.F.R.
§ 396.7(b) is designed to avoid.
Although section 405(b)'s "because" clause normally
requires an employee to seek correction of the unsafe condition
from his employer before refusing work,
Duff Truck Line, Inc. v. Brock, No. 87-3324 (6th
Cir. May 4, 1988), aff'g Robinson v. Duff Truck Line,
Inc., 86-STA-3 (Sec'y Mar. 6, 1987).
where, as here, the requirement is not feasible, courts have
recognized that it should not apply.
Simpson v. Federal Mine Safety & Health Rev.
Com'n, 842 F.2d 453, 459-461 (D.C. Cir. 1988) (qualified
requirement subject to exception where unusual
circumstances, e.g., futility, exist).
The fact that moving the equipment unavoidably exacerbated tire
damage did not remove section 405(b) protection in that DOT
regulation 396.7 expressly contemplates that a vehicle may be
operated in such condition as likely may cause breakdown if
operation "is less hazardous to the public than to permit
the vehicle to remain on the highway." The complainant,
therefore, was protected in refusing to leave his vehicle on the
highway and in moving it to the nearest safe location.
See LeBlanc v. Fogelman Truck Lines, Inc., 89-
STA-8 (Sec'y Dec. 20, 1989), aff'd sub nom. Fogelman
Truck Lines, Inc. v. Martin, No. 90-4114 (5th Cir. Apr.
17, 1991) (refusal to undertake trip assignment, returning
instead to employer's terminal for repairs.
Cf. Secretary of Labor ex rel. Robinette v. United
Castle Coal Co., 3 FMSHRC 803 (1981) (under Federal mine
safety law, protection extended to forms of self-help, i.e.,
taking some affirmative action other than merely refusing to
work).