But he
indicated there was no evidence they planned to claim fatigue before going out separately on their
respective routes and returning to the warehouse at separate times. Complainant denied at hearing
here that he and Fatheree conspired together not to work, or even discussed this. TR 133. Kaib
at 282-283.
Cortes returned to his Lucky employment Labor Day September 1, 1996 as
a result of the Arbitrator's order. According to Cortes' testimony he was not paid the back monies
he was due until September 26, 1996, the day before this STAA hearing. CX 11. Fatheree was
never named or identified by Cortes in Cortes' testimony here, but he indicated he believed Lucky
was retaliating against him and "this other fellow" in their effectuation of their back
pay award. TR 153-59.
Cortes also testified to three conversations with Kaib in the three days
immediately on his return where, according to Cortes, Kaib, a little vague about it, told him there
was a possibility Lucky was going to deduct his unemployment checks from his back pay but the
next day he told him they were not. TR 149, 153-54; at cross TR 214, 218-219; TR 244. There
is some representative non-testimonial indication the Arbitrator retained jurisdiction for purposes
of determining whether the ordered back pay award was satisfied. TR 146. Also, some non-testimonial questions as to the meaning of the Arbitrator's decision as it effects reference removal
from Cortes' file. TR 238-39.
At this STAA hearing Cortes testified he needs two days of rest and he rests
most of the first day he is off. To leading questions on direct he indicated his 5 p.m. shift
occasionally makes it hard for him to sleep but he did not indicate any sleep difficulty May 24,
1996. Cortes testified he slept 8-10 hours on his return home and rested the rest of May 24, 1996
[Page 10]
at home. To leading questions on direct Cortes indicated he was at home the evening of May 24,
tired, not alert, dozing off watching TV and he did not think he was in any shape to drive a truck.
TR 136-37. The only time Cortes explained his "I know my body" remarks and
getting proper rest, was in the context of "crossing" his hours, by which he meant, not
keeping to a late-to-sleep schedule and getting up early in the a.m., not applicable to the 5/24/96
5 p.m. start here.
Cortes testified Lucky does not have a policy for calling in fatigued. To his
knowledge, he has never been told to go to the medical department when he has informed the
dispatcher he was sick; he has never brought in a doctor's note. TR 128 cross at TR 163-64; TR
170-71. So just as he has told the dispatcher he was sick and has not given a reason, he told the
dispatcher May 24, 1996 he was fatigued. Because, under the provisions of §392.3, he
knew it would be both legally and morally wrong for him to drive a truck. He testified he
determines if he is fatigued and a safety hazard, and it would not make any difference if a doctor
told him he was not fatigued, he would still be fatigued. TR 137-38. Cortes testified as a
reasonable man he felt he would be jeopardizing the public, himself and Lucky Stores if he went
out again May 24, 1996; he had worked an excessive amount of overtime. TR 135.
According to Cortes he told Kaib May 27, 1996 he did not refuse to work;
he told him he was tired. He testified his May 27, 1996 comment to Kaib the Department of
Transportation or CHP should be there was because he did not have a copy of the regulations with
him and he guessed he was on the defensive in that remark to Kaib's question and he felt he
needed a little help to explain his situation.
Cortes had not told Krug in the lunch room drivers' meeting he could not
work the mandatory next day-extra day although he then knew his body needed two days rest.
Because, he explained, at the moment of Krug's request/mandate, he was not tired, excessively
tired. He was then asked what happened during the ensuing shift, to make him excessively tired.
He testified his normal driving duties made him so physically tired he was falling asleep on his
way back to Vacaville. TR 186, TR 188-191. At hearing here, unlike his testimony at the
arbitration hearing, or his May 27, 1996 responses in the Kaib meeting, Cortes now testified he
was falling asleep delivering groceries May 23, 1996 because he was so tired. He had such a hard
time keeping awake at the wheel he had to have the air-conditioning on on the way back; he had
to roll the windows down, and play the radio; he took all his breaks, lunch and coffee, he was so
tired. He testified he was looking for his timecard having arrived at the yard about 2 a.m. when
Tavares who had his timecard in his hand asked him what time he wanted to come in the next day.
He would absolutely not have been able to work all night long if he reported for work May 24,
1996. He needs two days rest.
Cortes testified there is not as much tension in driving a pick-up truck as
driving a tractor/trailer combination and he tends to relax in his pick-up truck, and thus he was
not concerned to be driving home at 2:30 a.m. in such a fatigued state, after almost falling asleep
at the wheel of his tractor-trailer, so fatigued he had just advised Lucky, without sleep and 14 1/2
[Page 11]
hours before his usual 5 p.m. start time of such fatigue he could not work that night. He was then
asked whether this fatigue, and the almost falling asleep experience at the Lucky tractor wheel was
not a safety concern to him when, no longer under tension and relaxed, he then took the wheel of
his pick-up truck, on interstate and local roads. Complainant replied he was pepped up by the
half-hour or so yard physical activities, including walking around he had to do in connection with
parking his tractor/trailer at run's end. When then asked to compare whether 8-10 hours of sleep
would pep him up, Cortes testified he could not measure this. Further, according to Cortes,
minimal damage would result if his pick-up truck had an accident as compared to the horrendous
damage if a tractor/trailer has an accident. TR 229-33.
ANALYSIS
In order to establish a prima facie case under the employee
protection provisions of the Act, Complainant has the initial burden of proving that: he engaged
in protected activity under the Act; he was the subject of an adverse employment action; and
Respondent was aware of the protected activity when it took the adverse action. Self v.
Carolina Freight Carriers Corp., 89-STA-9, (Sec. Dec. 1/12/90); Sickau v.
Bulkamatic Transport Co., 94-STA-26 (ALJ June 22, 1994). Moreover, Complainant must
present sufficient evidence to raise the inference that the protected activity was the likely reason
for the protected activity. Id. Once Complainant demonstrates his prima
facie case:
- the burden of production shifts to the defendant to articulate a
legitimate, nondiscriminatory reason for its employment decision.
If the defendant is successful in rebutting the inference of
retaliation, the plaintiff bears the ultimate burden of demonstrating
by a preponderance of the evidence that the legitimate reasons were
a pretext for discrimination. Moon v. Transport Drivers
Inc., 836 F.2d 226, 229 (6th Cir. 1987) (applying the analysis
of McDonnell Douglas Corp. v. Green, 411 U.S. 792,
93 S.Ct. 1817 (1973)).
Complainant avers that he engaged in protected activity under Sections (B)(i)
and (B)(ii) of the Act when he refused to drive on May 24, 1996. Complainant's Proposed
Finding of Facts and Conclusions of Law at 12-13. In order to demonstrate protected
activity under Section (B)(i), Complainant "must show that the operation 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." Yellow Freight Systems v. Martin, 983
F.2d 1195, 1199 (2nd Cir. 1993); Assistant Secretary & Boyles v. Highway Express,
94-STA-21 (Sec'y July 13, 1995); Brame v. Consolidated Freightways, 90-STA-20
(Sec'y June 17, 1992). 
