Congress passed the Surface Transportation Assistance Act in
December 1982 and it was signed by the President and became
effective on January 6, 1983. (Pub. L. 97-424, Title IV, 49
U.S.C. § 2301 et seq.)
Among other things, the Act provides for grants to the states for
the development or implementation of programs for the enforcement
of Federal safety standards for commercial motor vehicles and
compatible state standards. The Act protects all employees from
discharge, discipline, or discrimination for filing a complaint
about commercial motor vehicle safety, testifying in a proceeding
on such safety, or refusing to operate a commercial motor vehicle
when operation would violate a Federal safety rule or when the
employee reasonably believes it would result in serious injury to
himself or others.
The Secretary of Labor is charged with receiving and
investigating complaints of violations of this employee
protection or "whistleblower" provision. Either the
complainant or the employer is entitled to request a hearing on
the record. The Secretary is directed to issue a final order
within 120 days of the completion of the hearing, and may, if a
violation is found, order reinstatement, back pay, compensatory
damages, costs, expenses, and attorneys fees. 49 U.S.C. §
2305.
Nix v. Nehi-RC Bottling Company, Inc., 84-STA-1
(Sec'y July 13, 1984) (this was the first STAA whistleblower
complaint).
[STAA Digest I A 1]
OVERVIEW
In Somerson v. Yellow Freight System, Inc., 1998-STA-9 and 11 (ALJ
Feb. 18, 1999), the ARB provides an up-to-date, straightforward, and lucid description of such
general matters as the administrative-judicial process for STAA complaints, a complainant's
obligation to establish his or her complaint with proven facts, and the relationship between DOT
and DOL responsibilities under the STAA.
I.A.1. Overview of STAA
From: Martin v. Yellow Freight System, Inc., 91
Civ. 8370, 1992 U.S. Dist. LEXIS 7331, 1992 OSHD (CCH) P29,708
(S.D. NY May 18, 1992).
In addition to protecting an employee from discharge, discipline
or discrimination for filing a complaint about safety or refusing
to operate a vehicle in violation of Federal rules or because of
apprehension of serious injury due to unsafe condition, 49 App.
U.S.C. §§ 2305(a), (b), the statute provides an
administrative remedy to employees who believe that they have
been discharged in violation of the statute. Indeed, because
protection of an employee in the trucking industry was
considered so important by Congress, the elaborately structured
scheme is oriented to preserving the status quo if the Secretary
deems it necessary. For example, upon the filing of a complaint
by an employee, Section 405 authorizes the Secretary of Labor to
conduct a preliminary investigation in order to determine whether
there is reasonable cause to believe that the complaint has
merit. Id. § 2305(c)(2)(A). This task is delegated
to the regional administrator of OSHA; during the investigation,
the person named as the violator is given the opportunity to
respond to the complaint. 29 C.F.R. § 1978.103. The
Secretary, upon a finding of probable cause, must issue a
preliminary order of abatement or reinstatement if the employee
has been discharged. 49 App. U.S.C. § 2305(c)(2)(B).
The person alleged to have committed the violation has thirty
days to file objections to the findings or the order and may
request a hearing. Id. § 2305(c)(2)(A). If
objections are filed, the case is litigated within the
administrative channels of the Department of Labor. Pre- and
post-trial procedures are set forth in the regulations
promulgated pursuant to Section 405. See 29 C.F.R.
1978.100 et seq. If the violator has filed the objections, the
Assistant Secretary of Labor is deemed to be the prosecuting
party and the complainant is also a party. Id. §
1978.107. The order of reinstatement is not stayed while the
hearing is pending, id., and becomes effective immediately
upon receipt of the notice by the violator. Id. §
1978.105(b). After the conclusion of the hearing, the Secretary
must issue a final order within 120 days. At any time prior to
the issuance of a final order by the Secretary, the parties may
settle the dispute. See id. § 1978.111(d). In
addition, if a settlement offer has been made by the violator
that the Secretary deems to be fair and equitable, the Secretary
may decline to assume the role of the prosecuting party.
Id. § 1978.111(d)(3). The burden of prosecuting
then falls upon the complainant. Id. § 1978.107(b).
An employee who files a complaint under Section 405 may also
pursue arbitration remedies provided by a relevant collective
bargaining agreement. Id. § 1978.112(a). In
recognition of the national policy favoring voluntary resolution
of disputes under procedures in collective bargaining agreements,
when the omplainant is pursuing such a remedy, the Secretary or
the Assistant Secretary may, in its discretion, postpone a
determination of the section 405 complaint and defer to the
results of that proceeding. Id. § 1978.112(a)(2),
(3). Deferral to the outcome of the arbitration is warranted
only if it is clear that those proceedings dealt adequately with
all factual issues, that the proceedings were fair, regular, and
free of procedural infirmities, and that the outcome of the
proceedings was not repugnant to the purpose and policy of the
Act. Id. § 1978.112(c).
Finally, Section 405 provides that the Secretary may file an
enforcement action in district court against a person who has
failed to comply with an order issued under subsection (c)(2).
Id. § 2305(e). An appeal to the Court of Appeals from
the Secretary's final order, which must be issued 120 days after
a decision by the ALJ or after the preliminary order if no
objections were filed, is available to any person adversely
affected by a final order. Id. § 2305(d).
I.A.1. Public law and amendments
Public Law 97-424 originally designated the portion addressing
commercial motor vehicle safety as Part A of Title IV of the
Surface Transportation Assistance Act of 1982, 49 U.S.C. app.
§§ 2301-2305. A recent amendment has added sections
407 and 408, 49 U.S.C. §§ 2306, 2307. Pub. L. No. 102-
240, Dec. 18, 1991. In addition to employee protection, the
safety subchapter authorizes (1) State programs to enforce
Federal commercial motor vehicle safety rules, regulations,
standards, or orders, (2) grants to implement recommendations of
the National Governors' Association pertaining to police accident
reports for truck and bus accidents, and (3) an information
clearinghouse and depository pertaining to State registration,
licensing, and safety fitness of commercial motor vehicles,
including data on vehicle inspections and out-of-service orders.
Killcrease v. S & S Sand and Gravel, Inc., 92-
STA-30 (Sec'y Feb. 2, 1993).
I.A.1. Overview; enactment and purpose of
STAA
From Nix v. Nehi-RC Bottling Co., Inc., 84-STA-1
(Sec'y July 13, 1984) (the first STAA decision by the Secretary).
Congress passed the Surface Transportation Assistance Act in
December 1982, and it was signed by the President and became
effective on January 6, 1983. (Pub. L. 97-424, Title IV., 49
U.S.C. § 2301 et seq.) Among other things, the Act provides
for grants to the states for the development or implementation of
programs for the enforcement of Federal safety standards for
commercial motor vehicles and compatible state standards. The
Act protects all employees from discharge, discipline, or
discrimination for filing a complaint about commercial motor
vehicle safety, testifying in a proceeding on such safety, or
refusing to operate a commercial motor vehicle when operation
would violate a Federal safety rule or when the employee
reasonably believes it would result in serious injury to himself
or others.
The Secretary of Labor is charged with receiving and
investigating complaints of violations of this employee
protection or "whistleblower" provision. Either the
complainant or the employer is entitled to request a hearing on
the record. The Secretary is directed to issue a final order
within 120 days of the completion of the hearing, and may, if a
violation is found, order reinstatement, back pay, compensatory
damages, costs, expenses, and attorneys fees. (49 U.S.C. §
2305)
In Elbert v. True Value Co., No. 07-CV-03629 (D.Minn. Dec. 11, 2007) (case below ALJ No. 2005-STA-36),
the Plaintiff filed an action in federal district court asserting that the court had original jurisdiction pursuant to
49 U.S.C. § 31105(c) because the ARB had not issued a final decision within 210 days after the filing of the complaint.
The rule conferring jurisdiction on federal district courts where the ARB has not issued a final decision within
210 days after the filing of the complaint was a 2007 amendment to the STAA. See Implementing Recommendations of the 9/11 Commission Act of 2007,
Pub. L. No. 110-53, § 1536, 121 Sta. 266, 464-67 (Aug. 3, 2007). The Plaintiff's STAA complaint
was pending before the ARB when the STAA amendments at issue were signed into law by President Bush.
The district court granted summary decision to the Defendant, finding that the STAA amendments were not retroactive.
Congress included section 405(b) in the Surface Transportation
Assistance Act to insure that employees in the commercial motor
transportation industry who make safety complaints, participate
in STAA proceedings, or refuse to commit unsafe acts, do not
suffer adverse employment consequences because of their actions.
Roadway Express, Inc. v. Dole, 929 F.2d 1060 (5th
Cir. 1991) (citing 128 Cong. Rec. 29192, 3251 (1982)).
I.B.1.and 2. Purposes of STAA
From Yellow Freight Systems, Inc. v. Reich, No. 93-
1205 (4th Cir. Oct. 29, 1993) (available at 1993 U.S. App. LEXIS
28378):
Congress passed the STAA in 1982 to combat the "increasing
number of deaths, injuries, and property damage due to commercial
motor vehicle accidents" on America's highways. Brock v.
Roadway Express, Inc., 481 U.S. 252, 262, 95 L. Ed. 2d 239,
107 S. Ct. 1740 (1987) (quoting remarks of Sen. Danforth and
summary of proposed statute at 128 Cong. Rec. 35209, 32510
(1982)); see also Lewis Grocer Co. v. Holloway, 874 F.2d
1009, 1011 (5th Cir. 1989) ("Congress enacted the STAA to
promote safe interstate commerce of commercial motor
vehicles.") The Act seeks to reduce unsafe driving by long
haul truckers in two ways. First, it prohibits discipline of
trucking employees who raise violations of commercial motor
vehicle rules on the part of trucking companies. 49 U.S.C. app.
§ 2305(a). The Act recognizes that drivers and other
employees are often in the best position to detect when an
operation is not running safely, but that employees often may not
report violations for fear of backlash from their employees.
See Brock, 481 U.S. at 258; Yellow Freight Sys., Inc.
v. Martin, 954 F.2d 353, 356 (6th Cir. 1992); Lewis
Grocer, 874 F.2d at 1011.
Second, the Act encourages safer driving by prohibiting
discipline of drivers who refuse to operate their vehicles under
dangerous or illegal conditions. Specifically, the STAA forbids
employers from discriminating "in any manner" against
employees who refuse "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 when such operation would be
"unsafe" and pose "a bona fide danger" of
accident or injury. 49 U.S.C. app. § 2305(b); see
Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1065 (5th Cir.
1991) (stating that § 2305(b) ensures that employee who
"refuse to commit unsafe acts do not suffer adverse
employment consequences because of their actions").
A heightened necessity for unrestricted channels of information
exists in the surface transportation industry. Random
inspections at various points throughout the United States
uniformly revealed widespread safety violations, and the United
States Supreme Court had specifically found that STAA section 405
was enacted specifically so that employees would report
violations. Brock v. Roadway Express, Inc., 481 U.S. 252,
262 (1987).
Moyer v. Yellow Freight System, Inc., 89-STA-7
(Sec'y Sept. 27, 1990) (order denying motion to vacate and
reopen).
[STAA Digest I.B.2.]
PURPOSE OF STAA; EXPOSURE OF VEHICLE SAFETY VIOLATIONS OF
EMPLOYERS
In Quintero v. Coca Cola Bottling Co. of N.
America, ARB No. 00-066, ALJ No. 2000-STA-31 (ARB Oct. 26, 2000),
Respondent discovered that the medical certificate required by DOT regulation 49 C.F.R.
391.41(a) (physical qualification to drive a commercial motor vehicle) in Complainant's file had
expired. Respondent advised Complainant of this deficiency, and he renewed the certificate.
Respondent then directed Complainant to provide a medical certificate showing that he had been
physically qualified to operate a commercial motor vehicle during the time that the certificate had
expired. Complainant was unable to comply, and Respondent gave Complainant the option of
either transferring to a non-driver position, or resigning and reapplying for a driving position at a
later date. Complainant opted for the transfer.
The ARB adopted the ALJ's finding that Complainant had not engaged in protected activity. The
Board wrote: "In our view, the STAA is not a shield that employees can use to immunize
themselves against the consequences of their failure to adhere to motor vehicle safety regulations.
Instead, the STAA, among other things, is intended to protect employees who expose the motor
vehicle safety violations of their employers."
I. B. 2. To ensure the flow of information
In Yellow Freight System, Inc. v. Reich, No. 93-
3488 (6th Cir. June 24, 1994) (available at 1994 U.S. App. LEXIS
15585), the court quoted the following language from the Supreme
Court decision in Brock v. Roadway Express, Inc., 481 U.S.
252, 95 L. Ed. 2d 239, 107 S. Ct. 1740 (1987), in regard to the
effect and purpose of section 405 of the STAA:
Section 405 of the Surface Transportation Assistance Act
of 1982, 96 Stat. 2157, 49 U.S.C. App. § 2305, protects
employees in the commercial motor transportation industry
from being discharged in retaliation for refusing to operate
a motor vehicle that does not comply with applicable state
and federal safety regulations or for filing complaints
alleging such noncompliance.
Id. at 255.
The Sixth Circuit also quoted the following language:
Section 405 was enacted in 1983 to encourage employee
reporting of noncompliance with safety regulations governing
commercial motor vehicles. Congress recognized that
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. See, e.g., 128 Cong.
Rec. 32698 (1982) (remarks of Sen. Percy); id., at
32509-32510 (remarks of Sen. Danforth). Section 405 protects
employee "whistle-blowers" by forbidding
discharge, discipline, or other forms of discrimination by
the employer in response to an employee's complaining about
or refusing to operate motor vehicles that do not meet the
applicable safety standards. 49 U.S.C. App. §§
2305(a), (b).
Id. at 258.
I.B.2. Purpose of STAA; ensure flow of information
From: Martin v. Yellow Freight System, Inc., 91
Civ. 8370, 1992 U.S. Dist. LEXIS 7331; 1992 OSHD (CCH) P29,708
(S.D. NY May 18, 1992).
Section 405 of the STAA was considered necessary to encourage
"whistle-blowing" by employees. Senate Commerce
Committee Section by Section Analysis of Title IV, S. 3044,
Commercial Motor Vehicle Safety, 97th Cong., 2d Sess., 128 Cong. Rec. S
14028 (Dec. 7, 1982). The purpose of the statute is to ensure
that the government's channels of information are not dried up by
employer intimidation of prospective complainants and witnesses.
[Citations omitted.] Through Section 405, Congress created a
process which protects the employee from retaliation while
determining whether the employee's claim is correct.
In STAA section 2305(e) cases, the Secretary seeks to vindicate
private interests (the devastating financial consequences
resulting from a retaliatory discharge) rather than public
interests such as under NLRA § 10(1). Martin v.
Yellow Freight System, Inc., 91 Civ. 8370, 1992 U.S.
Dist. LEXIS 7331; 1992 OSHD (CCH) P29,708 (S.D. NY May 18,
1992).