In the Matter of
THOMAS E. BRANDT,
Complainant
vs.
UNITED PARCEL SERVICE,
Respondent
DATE ISSUED: JUNE 29, 1995
Case No. 95-STA-26
Thomas E. Brandt
17 Rancho Villa
Walla Walla, WA 99003
Pro se
Norma Schwab
Employment and Employee
Relations Manager
United Parcel Service
6707 North Basin Avenue
Portland, OR 97217
For respondent
Before: Thomas Schneider
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
(Denying Complaint)
This case arises under the "whistleblower" protection of
§405 of the Surface Transportation Assistance Act of 1982
(STAA), 49 USCA §31105 (1995), and the regulations at 29 CFR
Part 1978. A hearing was held in Portland, Oregon on May 10, 1995.
Complainant, Thomas E. Brandt (Brandt), appeared pro se and
respondent, United Parcel Service (UPS), appeared by its Employment
and Employee Relations Manager. Evidence was received. Brandt's
argument was stated in a notebook which contained his summary of,
and commentary on articles which were also contained in said
notebook. Respondent
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was given an opportunity to respond, which it did in a letter dated
June 9, 1995. The record closed on June 26, 1995 after the time
for further briefs had expired. TR 95.[1]
Facts
The facts are not in dispute, except as noted.
There is no dispute that UPS is engaged in interstate trucking
operations and that its employees operate commercial motor vehicles
in interstate commerce, and that this complaint under STAA is
properly before me. See, Secretary's Findings, dated March 28,
1995.
Brandt was hired by UPS as a "feeder driver" on or about
October 31, 1994. UPS hires additional drivers at this time every
year on a temporary basis to help with increased workload before
Christmas. TR 26. He was given forty hours of training, which
ended at approximately 2:00 P.M. on Friday, November 4. TR 36. He
was advised that he might be called to drive a variable shift (TR
45), and that the majority of the runs are at night. TR 27, 48,
77.
Debbie Blankenship, one of UPS's Feeder Supervisors at the
Hermiston terminal, testified that she called claimant on Friday,
November 4th and left a message on Brandt's answering machine. TR
34. Brandt testified that he never got this message. TR 11. This
is the only conflict in evidence, but it need not be resolved
because it is agreed that Brandt did get a message on Saturday,
November 5th at approximately 7 P.M. that he would be needed to
drive from Hermiston, Oregon to Spokane, Washington and return,
beginning at 8:00 P.M. on Sunday, November 6. TR 12. Brandt
therefore had more than 24 hours notice of his proposed assignment.
Brandt calculated that the proposed assignment would have
ended at 6:00 A.M. on Monday, November 7, requiring a shift in his
sleeping pattern. TR 14. He refused the assignment during his
conversation with Debbie Blankenship on the ground that he would be
too fatigued to drive safely, as a result of having to change his
sleeping pattern. TR 13, 38, 62. He repeated the refusal in
person at UPS's Hermiston facility two hours later (TR 39), and
again at a meeting with UPS personnel on the morning of Monday,
November 7. TR 47. UPS thereupon terminated his employment. Ray
Warren, UPS's Feeder Supervisor in Hermiston, stated that he needed
drivers he could count on to work when called.
Law and contentions
[PAGE 3]
In order to establish a prima facie case for relief under STAA
an employee must show that he engaged in protected conduct, that he
was subject to adverse employment action, and that his employer was
aware of the protected conduct when it took the adverse action, and
must present evidence sufficient to raise the inference that the
protected conduct was the likely reason for the adverse action.
Ertel v. Giroux Brothers Transportation, Inc., 88-STA-24
(Sec'y. Feb. 16, 1989) DOL Decs.[2] Vol. 3, No. 1, p. 162, 168;
Moon v. Transport Drivers, Inc., 836 F.2d 226, 229 (6th Cir.
1987).
It is undisputed that Brandt was terminated, which is an
adverse employment action, and that the reason for termination was
Brandt's refusal to take the proposed assignment. The focus of the
dispute is, therefore, whether Brandt's refusal was protected
activity.
49 USCA § 31105 (1995) provides in pertinent part:
(a)Prohibitions.--(1) A
person may not discharge an employee, or discipline or
discriminate against an employee regarding pay, terms, or
privileges of employment, because--
(A) ...
(B) the employee refuses to operate a
vehicle because--
(i) the operation violates a
regulation, standard, or order of
the United States related to
commercial motor vehicle safety or
health; or ...
Brandt contends that he was justified in refusing the
assignment because, had he accepted it, he would have been in
violation of a regulation related to motor vehicle safety, viz., 49
CFR §392.3 which provides:
§ 392.3 Ill or fatigued operator.
No driver shall operate a motor vehicle, and a motor
carrier shall not require or permit a driver to operate
a motor vehicle, while the driver's ability 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
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vehicle. However, in a case of grave emergency where the hazard to
occupants of the vehicle or other users of the highway would be
increased by compliance with this section, the driver may continue
to operate the motor vehicle to the nearest place at which that
hazard is removed.
Brandt admits that taking the assignment would not have
violated the hours of service rules specified in Part 395 of 49
CFR. TR 16. These rules spell out in detail the maximum hours a
driver may drive in various periods. Brandt rests his contention
on the general assertion that safety laws should be liberally
construed, and on a number of scientific studies which he
summarized in a letter to Russell C. Hart, the OSHA investigator,
copies of which were also introduced into the record before me. CX
1.
Brandt is, of course, correct that the STAA should be
interpreted liberally. For example, the Secretary has stated:
Section 405(b) [3] must be interpreted consistent with
Congressional intent, namely, the promotion of commercial
motor vehicle safety on the nation's highways. ...
Given the clear legislative concern for promoting
commercial motor vehicle safety, I agree with the ALJ
that Section 405(b) should not be read so narrowly that
it would protect an employee who refused an order to
violate motor vehicle safety regulations only if the
violation exists at the time the order is given.
Boone v. TFE, Inc., 90-STA-7, (Sec'y. July 17, 1991) DOL
Decs. Vol. 5, No. 4, p. 160, 161, aff'd sub nom. Trans Fleet
Enterprise, Inc. v. Boone, 987 F.2d 1000 (4th Cir. 1992).
The articles relied upon by Brandt are in three groups. The
first consists of documentation that fatigue in the workplace and
in the trucking industry is more significant than commonly
realized; that the cost of accidents in which fatigue is involved
is large, both in dollars and in lives. This group includes two
technical reports of the National Transportation Safety Board. The
second group consists of an explanation of circadian rhythm-- the
rhythm, set by a person's biological clock, that controls sleep
patterns according to day and night, and perhaps according to
bright light and darkness, or other factors. The point is that to
change one's patterns of sleep takes several days for many, or
most, people, who become sleepy or fatigued before adjusting to a
new rhythm, which makes it unsafe to drive. The third group
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consists of data on studies showing that sleepiness in the work
environment can be measured and predicted. The point is that the
driver is the best judge of his own sleepiness, and that there is
a high correlation between subjective feelings of sleepiness and
some objective physiologic changes.
UPS contends that these articles, insofar as they refer to the
trucking industry, refer to long haul drivers that are paid by the
mile or by the load. UPS drivers are paid by the hour (TR 56), and
are guaranteed ten hours off between shifts by the labor contract.
"Mr. Brandt was terminated for his inability to fulfill the
requirements of the job."
Discussion
Robinson v. Duff Truck Line, Inc., 86-STA-3 (Sec'y.
March 6, 1987) DOL Decs. Vol. 1, No. 2, p. 451, aff'd sub nom.
Duff Truck Line, Inc. v. Brock, 848 F.2d 189 (6th Cir.
1988)(Table) involved a driver who refused an assignment to drive
under conditions he deemed unsafe because of ice on the road. The
Secretary wrote:
I reject the position that section 392.14 [4] is
violated whenever the driver has a reasonable and good
faith belief that it is unsafe to drive. Section 392.14
makes no mention of a driver's good faith belief.
Rather, this section by its clear terms prohibits the
operation of a vehicle when the weather conditions are in
fact such that the vehicle cannot be operated safely.
Id., at p. 454. The Secretary went on to hold that the weather
conditions were in fact dangerous and found that Mr. Robinson had
engaged in protected activity.
Although fatigue is inherently more subjective than weather
conditions, the Secretary's position implies that § 392.3, in
the context of an STAA whistleblower proceeding, should not be
interpreted to justify a driver's purely subjective feeling of
fatigue. Some objective factor must validate the subjective
feeling.
In one case a driver pulled over for a nap, feeling severely
fatigued after having been up for 19 hours, driving the last
seven. The Secretary ruled, and the court affirmed, that Yellow
Freight Systems violated STAA when it disciplined the driver for
taking a nap under those circumstances. Yellow Freight Systems,
Inc. v. Reich, 8 F.3d 980 (4th Cir. 1993). In another,
Smith v. Yellow Freight System, Inc., 91-STA-45 (Sec'y.
March 10, 1993) DOL
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Decs. Vol. 7, No. 2, p. 46, the Secretary ruled in favor of the
driver under STAA because he was disciplined for taking a fatigue
break. He had been ready for dispatch for ten hours, then was
dispatched two hours later for a ten hour run. After driving for
about an hour he pulled over in order to nap.
These cases are the typical cases involving the fatigue
provision of §392.3, with or without a violation of the hours
of service rules specified in Part 395. Of course, many cases have
found a driver protected for refusing to violate the hours of
service rules. E.g., Boone v. TFE, Inc., supra, 90-STA-7,
(Sec'y. July 17, 1991) DOL Decs. Vol. 5, No. 4, p. 160, 161, aff'd
sub nom. Trans Fleet Enterprise, Inc. v. Boone, 987 F.2d
1000, 1004 (4th Cir. 1992), Greathouse v. Greyhound Lines, Inc.,
92-STA-18 (Sec'y. August 31, 1992) DOL Decs. Vol 6, No. 4, p.
203
Brandt's reliance on the journal articles is an attempt to
show that the driver's appraisal of his own alertness should be
given more weight than the hours of service rules. This assertion
requires some analysis of the relationship between the two rules.
The hours of service rules are designed to set a workable criterion
that enables both drivers and their employers to estimate in most
circumstances how much driving is feasible and safe within a
certain time. The illness and fatigue regulation seems designed
for those situations where the hours of service rules are
inadequate to insure safety. I conclude 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.
Sometimes a driver will be fatigued even if he has time left
under the hours of service rules. For example, where he suddenly
requires medication to fight an infection and drowsiness is a side
effect. See Palazzolo v. PST Vans, Inc., 92-STA-23 (Sec'y.
March 30, 1993) DOL Decs. Vol. 7, No. 2, p. 42. Such a very
particularized circumstance cannot be taken into account by the
hours of service rules. Like weather conditions, it is objectively
verifiable.
Complainant has shown very little concerning his individual
circumstances. He believed that disrupting his sleep pattern
(which he testified was from 10 P.M. to 6 A.M. [TR 19]) even with
more than 24 hours notice, would cause him to become fatigued
during the night when he was expected to drive. He testified to a
prior experience that he thought was similar to the assignment he
was requested to take, where he got very tired. TR 65-68.
Although this is Brandt's particular experience, it is not
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objectively verifiable. Ray Warren, another supervisor and former
feeder driver, testified that some drivers are able to adjust their
sleeping times by going to bed later and then napping before going
on duty, or having other individual techniques. TR 54. Steven L.
Sepich, UPS's safety manager, testified to the same effect. TR 79-
80. I therefore find that Brandt has not shown that his refusal to
take the driving assignment was protected activity.
Assuming, however, that from Brandt's point of view his
refusal to drive was protected activity, from UPS's point of view
its firing him was a valid business decision. It needed flexible
drivers. If Brandt could not change his sleeping pattern, which
may have been true, he was not suitable for the job. This is an
additional reason that requires a finding that Brandt was not fired
for engaging in protected activity, but rather for a valid business
reason.
If 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. In fact, Brandt
writes in his letter of March 19, 1995 to the OSHA investigator,
"The Federal Government must now take all this information and
create a realistic rule regarding duty hours based on the circadian
rhythm research." Brandt's argument and the data supporting it
should be addressed to the Department of Transportation, the agency
that writes the general rules. I found the argument and the data
very interesting, but insufficient to overcome the presumption that
the hours of service rules now in force state the general
guidelines applicable to commercial drivers at this time.
Accordingly, I find that respondent's action of firing
complainant was not discriminatory. I recommend that the Secretary
enter the following order pursuant to 29 CFR §1978.109(c)(4):
ORDER
The complaint of Thomas E. Brandt is denied.
[ENDNOTES]
[1] TR refers to pages of the transcript of hearing. CX refers to complainant's exhibit.
[2] DOL Decs. refers to the publication of the United States Department of Labor entitled
"Decisions of
the Office of Administrative Law Judges and Office of Administrative Appeals." Secretary of
Labor Decisions
are also available on a CD ROM published by the Office of Administrative Law Judges, entitled
"Whistleblower
Library" for sale by the U.S. Government Printing Office, Superintendent of Documents.
[3] Section 405(b), 49 USCA App. §2305(b)(1993) was the predecessor of the statute
involved here,
49 USCA § 31105 (1995).
[4] § 392.14Hazardous conditions; extreme caution.
Extreme caution in the operation of a motor vehicle shall be exercised when hazardous
conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely
affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions
become sufficiently dangerous, the operation of the vehicle shall be discontinued and shall not
be resumed until the vehicle can be safely operated. ...
