1 This appeal has been assigned to a panel of
two Board members, as authorized by Secretary's Order 2-96. 61 Fed. Reg. 19,978 §5 (May 3, 1996).
2 The governor is a device in the fuel
system which limits the tractor's maximum speed. The governor on Murray's tractor was set at 68 mph.
3 On January 11-12 Murray had
experienced similar problems while driving the truck from Landover to Allentown. When he reached
Allentown, Murray reported the condition of the vehicle to the Air Ride supervisor on duty and to Rollins,
which had its maintenance and repair personnel in Allentown. On his Rollins vehicle inspection report Murray
wrote: "Governor on Truck is messing up. Truck[']s speed is not constant. Truck slows down at will,
truck is a safety hazard." Murray also described the problem on his daily inspection report, which he
submitted to Air Ride at the end of the week.
Because Truck 401551 was due for its 90 day preventative maintenance on
January 13, Rollins personnel decided to address Murray's concerns at that time. Thus, from January 13-14
Truck 401551 underwent maintenance and repair. However, there is no indication that any work was
performed on the truck's governor. During the period that Truck 401551 was undergoing preventative
maintenance and repair, Murray was assigned another truck to drive.
4 Murray would have been
scheduled to leave Landover at approximately 8:30 p.m. and arrive in Allentown at approximately 12:15 a.m.
on Sunday, January 17.
5 Murray also argued that his
refusal to drive was protected under subsection 31105(a)(1)(B)(i) because "the operation violates a
regulation, standard, or order of the United States related to commercial motor vehicle safety or health . . .
." The ALJ ruled that "Complainant has presented such strong evidence that Complainant
engaged in protected activity under (B)(ii), the reasonable apprehension provision, that I find it unnecessary to
discuss (B)(i), the actual violation provision. RD&O at 11. For the same reason, we find it unnecessary to
decide whether Murray's actions were protected under subsection (B)(i).
6 Dr. Garber, Chair of the
Civil Engineering Department of the University of Virginia, is an expert on issues of speed, speed safety, and
speed variance in relation to traffic and accidents. Called as a witness by Murray, Dr. Garber testified in
detail about the dangers caused by a truck's tendency to slow down unexpectedly.
7 In the e-mail, an Air Ride
official wrote that the driver of Truck 401551 had reported to him that "the tractor was doing fine down
the road but he thought it would pull a little better, but there was no surging on the throttle." RD&O at
12. Although Air Ride argued that this report confirmed that there was nothing wrong with the Truck, it is
impossible to draw that conclusion in light of the statement that the driver "thought [the Truck] would
pull a little better . . . ."
8 In this regard, it is worth
noting that the fact that Air Ride officials did not think that the truck was unsafe is largely irrelevant in the
circumstances of this case where none of them examined the truck, and where Beecher actually believed
Murray's version of events. The question is whether Murray's apprehension was reasonable.
9 From January 16, 1999
through August 27, 1999: 32 weeks x $1000 = $32,000- $600 in other wages = $31,400. From August 28,
1999 through October 29, 1999: $9,000 (9 weeks x ,000 per week) - $3,960 (9 weeks x $440 per week
(other wages)) = $5,040.
10 From October 30, 1999
through March 18, 2000: $11,200 (20 weeks x $560). From March 18, 2000 through March 22, 2000: $320
(4 days x $80 per day).
11 Contrary to Air Ride's
assertion (Res. Br. at 6), attorney's fees are recoverable for time spent on a case prior to the actual filing of
the complaint. See, e.g. Webb v. County Board of Education of Dyer County, 471 U.S. 234, 243
(1984).
12 These hours cover the
period from March 26, 1999, through June 17, 1999. By June 28, 1999, it is evident that Counsel was once
again representing Murray.