DATE: October 26, 1995
CASE N0: 95-STA-26
IN THE MATTER OF
THOMAS E. BRANDT,
COMPLAINANT,
v.
UNITED PARCEL SERVICE,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
Before me for review is the Recommended Decision and Order
(R. D. and O.) issued on June 29, 1995 by the Administrative Law
Judge (ALJ) in this case arising under the employee protection
provision of the Surface Transportation Assistance Act of 1982
(STAA), 49 U.S.C.A. § 31105 (West 1994). Complainant Thomas
E. Brandt (Brandt) alleges that Respondent United Parcel Service
(UPS) violated Section 405 by discharging him for refusing to
accept a driving assignment that would have disrupted his
sleeping pattern, thereby requiring him to drive while fatigued.
After a review of the entire record I accept the decision of the
ALJ and agree that the complaint should be dismissed.
BACKGROUND
The findings of fact by the ALJ are supported by substantial
evidence on the record as a whole and therefore are conclusive.
29 C.F.R. § 1978.109(c)(3)(1994), Moon v. Transport
Drivers,Inc., 836 F.2d 226, 229 (6th Cir. 1987).
Brandt was hired by UPS as a temporary "feeder driver" on or
about October 31, 1994. Feeder drivers are hired each year by
UPS to serve as temporary support during the holiday season.
Upon being hired Brandt was advised that "he might be called to
drive a variable shift" and that "the majority of the runs are at
night." R. D. and O. at 2. Debbie Blankenship, one of UPS's
feeder supervisors, testified that she left a message on Brandt's
answering machine the evening of November 4, 1994, informing him
that he was assigned a run from Hermiston, Oregon to Spokane,
Washington and return, beginning at 8:00 p.m. on Sunday, November
6, 1994. T. 34.[1] Brandt testified that he never got the
message. T. 11. The parties agree that Brandt was informed of
this scheduled run by Saturday, November 5, 1994 at 7:00 p.m.,
during a telephone call between Blankenship and Brandt. R. D.
and O at 2. During that call Brandt refused the assignment
because, as a result of
[PAGE 2]
changing his sleep pattern, he would be too fatigued to safely
make the trip.[2]
Brandt repeated his refusal two hours later at UPS's
Hermiston facility, and again in a discussion with Ray Warren,
another feeder supervisor, on the morning of Monday, November 7,
1994. UPS thereupon terminated his employment. R. D. and O. at
2. Brandt subsequently filed a complaint alleging that UPS
discriminatorily discharged him "for his refusal to accept a
dispatch... when he would have been too fatigued to operate his
vehicle." Complaint filed February 6, 1995.
Brandt alleges that current safety laws should be liberally
construed and that UPS was obligated to take into account his
subjective assessment of his ability to drive. The ALJ concluded
that Brandt's refusal to take the driving assignment was not
protected activity pursuant to Section 405. Brandt now appeals
that decision.
DISCUSSION
Under the "refusal to drive" provision of the STAA, an
employer may not discharge an employee because:
(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
(ii) the employee has a reasonable apprehension of
serious injury to the employee or the public because of
the vehicle's unsafe condition.
49 U.S.C.A. § 31105(a)(1)(B) (West 1994). The employee
protection provision of the STAA was enacted because "employees
in the transportation industry are often best able to detect
safety violations and yet, because they may be threatened with
discharge for cooperating with enforcement agencies, they need
express protection against retaliation for reporting these
violations." Brock v. Roadway Express, Inc., 481 U.S. 252
(1987). Brandt's allegation indicates that he seeks protection
for his refusal to drive under subsection (i).
In order to establish a prima facie case for relief under
the STAA an employee must show that he engaged in protected
conduct, that he was the subject of adverse employment action,
and that there was a causal link between his protected activity
and the adverse action of his employer. Moon,
supra, at 228.
As there was no dispute that Brandt was terminated (an adverse
employment action) and that the reason for termination was his
refusal to take the proposed assignment, the ALJ's analysis
focussed on whether Brandt's refusal was protected conduct.
Brandt alleges that had he accepted the assignment he would
have been in violation of the Federal Motor Carrier Safety
[PAGE 3]
Regulation's "ill or fatigued operator" provision, 49 C.F.R.
§ 392.3:
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 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 himself concedes that taking the assignment would not have
violated the hours of service rules under 49 C.F.R. §395.
See, e.g., Smith v. UPS, 890 F.Supp 523, 525 (S.D.W.V.
1995). Instead, as he stated in his April 6, 1995 letter to an
OSHA Regional Administrator, his point was to prove that:
[A]ny normal person asked to drive as I was by my
former employer, United Parcel Service, would become
fatigued during the driving assignment to a point that
would place the driver (and also his employer) in
violation of Federal Motor Carrier Safety Regulation 49
CFR 392.3 Ill or fatigued operator.
A refusal to drive based on a refusal to shift one's sleep
pattern is not the type of activity protected under Section 405.
It was not unreasonable for UPS to require a temporary feeder
driver to shift his sleep pattern with 24 hours notice. Brandt's
refusal to even attempt to change his sleeping pattern caused his
dismissal.
Brandt presented several studies which conclude that most
people cannot change their sleep patterns and simultaneously
avoid fatigue. To be protected under 49 U.S.C. §
31105(a)(i)(B), the complainant must show that operating the
vehicle would have caused an actual violation of a motor carrier
safety regulation. It is not sufficient that the driver had a
reasonable belief about a violation. Yellow Freight Sys.,
Inc. v. Reich, 38 F.3d 76 (2d Cir. 1994); Yellow Freight
Sys., Inc. v. Martin, 983 F.2d 1195, 1199 (2d Cir. 1993);
Robinson v. Duff Truck Line, Inc., Case No. 86-STA-3,
Final Dec. and Ord., Mar. 6, 1987, slip op. at 12-13, aff'd
sub nom. Duff Truck Line, Inc. v. Brock, No. 87-3324 (6th
Cir. June 24, 1988). It would be impossible for Brandt to prove
that the decision he made on Saturday night, not to drive on
Sunday night because of expected fatigue, was based on an
actual violation of the motor carrier safety regulations.
[PAGE 4]
Further, Brandt's refusal to drive was not based upon a
reasonable apprehension of serious injury to himself or the
public under 49 U.S.C. § 31105(a)(i)(B)(ii). Given that
Brandt could have, if necessary, slept for the entire 24 hour
period prior to his run, it would have been unreasonable for him
to be apprehensive on Saturday about his or the public's safety
on Sunday.
Brandt's situation differs sharply from those in which
drivers were placed on call and remained awake for a substantial
number of hours immediately before being given as assignment.
See, e.g., Yellow Freight Sys. v. Reich, 8 F.3d 980, 987
(4th Cir. 1993), in which the Fourth Circuit upheld a decision to
prohibit Yellow Freight from sanctioning a driver when he refused
to risk an accident by driving while fatigued for the sake of
completing a freight run that already had been held up by
circumstances out of his control. I conclude that Brandt has not
shown that he engaged in conduct protected under the STAA.
Accordingly, the complaint IS DISMISSED.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] T. refers to the transcript of the May 10, 1995 hearing
before the ALJ in Portland, Oregon.
[2] The dispute concerning when Brandt was first contacted need
not be resolved in deciding this matter because Complainant
stated that disrupting his sleep pattern, even with more than 24
hours notice, would have caused him to become fatigued.
