DATE: March 10, 1993
CASE NO. 91-STA-45
IN THE MATTER OF
WILLIE W. SMITH,
COMPLAINANT,
v.
YELLOW FREIGHT SYSTEM, INC.,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER
Before me for review is the Partial Recommended Decision and
Order (P.R.D.) issued on November 13, 1992, by the Chief
Administrative Law Judge (ALJ) in this case, arising under
Section 405 (employee protection provision) of the Surface
Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app.
2305 (1988), and its implementing regulations, 29 C.F.R. Part
1978 (1992). The ALJ has recommended that the Complainant should
prevail in his complaint of unlawful discrimination. I agree
generally with his recommendation as outlined below. [1]
STATEMENT
Complainant Willie W. Smith, an over-the-road operator of
commercial motor vehicles with 26 years of experience, was
employed by Respondent Yellow Freight System, Inc. (Yellow)
between February 6, 1988, and his discharge on November 6, 1989.
Midpoint in his tenure, on February 1, 1989, he became a steward
for Teamsters Local Union No. 413, engaging in employee
counseling and representation as permitted under the collective
bargaining agreement. Smith contends that he was discharged in
November 1989 because he engaged in activity protected under the
STAA; namely refusing, on three occasions in August, September,
and October 1989, to operate his vehicle when severely fatigued;
[PAGE 2]
educating other drivers about Department of Transportation (DOT)
regulations and urging them to "stand up for their rights" under
the regulations; and protesting warning letters issued by Yellow
to discipline him for these activities. In its defense, Yellow
contends that it discharged Smith based on his "overall work
record" during the nine-month period between February and October
1989.
1. Smith's June 1989 discharge and subsequentreinstatement
Shortly after becoming a union steward in February 1989,
Smith received four disciplinary letters for time spent
counseling drivers. While the collective bargaining agreement
permitted Smith to conduct union business at Yellow's terminal,
Yellow managers "just ask[ed] to be informed." Hearing
Transcript (T.) 503, 571-572. For example, regarding
notification of counseling in March 1989, Yellow's Columbus,
Ohio, Assistant Line Haul Manager Robert Gifford testified:
"[A]s far as I know, [Smith] didn't let us know anything." [2]
Smith testified that drivers routinely approached him in the
terminal with questions and that on occasion he would be required
to prepare to defend drivers at company hearings. Exh. 78 at
70-72, 82-85. Counseling lasting 30 to 45 minutes did not
require that he notify management, but "[i]f it got to be an
hour, I had to go see them." [3] Id. at 69 (Smith).
Smith consistently documented time spent counseling in his
Driver's Daily Log. Smith's counseling included educating
drivers about DOT limitations on hours of work and driving when
ill or fatigued. Exh. 78 at 168-171; Exh. 100 at 8. See
49 C.F.R. 392.3, 395.3 (1991).
In February 1989, Smith received a disciplinary warning
because he erred in computing his remaining available driving
time. He computed two and one quarter hours remaining when he
actually remained available for two and one half hours. T. 505,
514-515; Exh. 78 at 95-96. In May 1989, Smith received a warning
for taking an hour's fatigue break en route, and thus "delaying
freight," and for taking an otherwise permissible meal break at a
point after, rather than at, his "meet and turn," i.e.,
after exchanging loads with another driver midpoint between their
respective terminals. T. 407-408, 519-524. Having already met
the other driver, Smith did not delay making the exchange.
See T. 521-524.
On June 5, 1989, Smith was stopped on Interstate 77 by a
West Virginia State Trooper for exceeding the speed limit on a
downhill grade. When requested to sign the ticket, Smith
refused, apparently due to misunderstandings concerning the
effect of signature and bond arrangements. T. 672; Exh. 78 at
107-108; P.R.D. at 10-11. Smith was arrested, and his truck was
[PAGE 3]
impounded. Although he straightened out any misunderstanding
with the magistrate and was free to continue his run, Yellow
directed him to return by bus and sent another driver to retrieve
the truck. T. 146-153. Yellow paid $75 in impoundment fees. T.
529. Smith paid a five-dollar fine and court costs as the result
of being ticketed. T. 152. Yellow discharged Smith on June 6,
1989. The Ohio Joint State Committee subsequently found that
Smith's overall work record merited a three-week suspension
rather than discharge. Smith, who remained discharged for six
weeks awaiting the Committee's decision, was returned to work
with three week's pay. Exhs. D, 51.
Smith contrasts his discipline with that imposed on Driver
T. L. Klein who received a three-day suspension following an
accident which resulted in damage exceeding $5,000 and for which
Klein bore "some fault." [4] T. 318-320, 354-358, 371-373;
Exh. PP.
In explaining Smith's discharge, Assistant Line Haul Manager
Gifford testified that he believed Smith had abused his equipment
by taking the tractor out of gear in order to defeat the
"governor" and "freewheeling" down the hill. T. 528-532.
Yellow's Area Maintenance Manager Dennis Campbell testified that
other explanations existed for Smith's having exceeded the
governed speed, including that the unit's momentum may have
pushed the engine beyond the limit. T. 626-632. Manager
Campbell found no evidence of engine damage and did not test for
brake damage. T. 635-638. Campbell did not know whether the
chassis dynamometer, used to verify Smith's governor, had been
certified as accurate before the test was run. T. 639. Yellow's
Labor Trouble Operations Manager Rodney Boothe testified that a
dynamometer check is not routine in the ten to 15 instances each
year where Yellow's Columbus, Ohio, drivers are ticketed for
exceeding 62 mph. T. 675-676.
2. Smith's November 1989 discharge
During runs on both August 3 and September 23, 1989, Smith
ceased driving for about an hour, in order to nap over the
steering wheel at roadside, when he became too fatigued to
continue. The reason for his fatigue was that Yellow had delayed
dispatching him after he came off his required eight-hour rest.
For example, on September 22, Smith remained in readiness
awaiting dispatch for ten hours before Yellow called him to
report in two hours in order to drive a ten-hour run. Exhs. M,
13. On each occasion, Smith received a warning letter for
"delay[ing] freight and equipment . . . due to . . . taking an
extra break." Exhs. 9, 12. The "extra breaks" comprising the
infractions are those identified by Smith in his Driver's Daily
Log as being a "fatigue-safety break" and a break for purposes of
[PAGE 4]
"napping." Drivers are not compensated for time spent on break.
T. 513-514; Exh. 78 at 136-137.
In this regard, I reject Yellow's assertion that it
disciplined Smith because he failed to apprise the Columbus,
Ohio, dispatch that he had been delayed. The warning letters
issued to Smith do not identify this rationale as a basis for
imposing discipline. Moreover, Driver Klein, who similarly
stopped for a fatigue break in order to nap, but called to report
the delay, received disciplinary coaching from Assistant Manager
Gifford. T. 283-287, 320-323.
Yellow points to testimony by Driver Hogan in support of its
argument that it disciplined Smith for his failure to call in,
rather than for taking a fatigue break. Resp. Br. at 25. On a
single occasion, Hogan was not disciplined when he notified
Yellow of his need to take a one half-hour coffee break due to
fatigue. Hogan testified: "I arrived at Parkersburg at 10:40
and waited on my drop [and] hook and I went around the corner. A
city driver there told me -- I was tired so I went around the
corner there and I got coffee. Something to get me awake over
there." T. 380; Exh. 4 at 4. Smith, however, similarly was
not disciplined for taking a one half-hour coffee break despite
failing to notify Yellow. T. 71. See P.R.D. at 18 (first
full paragraph).
Considered in context, the above evidence suggests that
Yellow may have tolerated a brief stop for coffee, but that it
did not tolerate longer delays necessitated by more severe driver
fatigue regardless of notification. The effect of this policy is
to discourage all but the most abbreviated breaks when a driver
actually requires a longer period in which to dispel his fatigue.
"This situation encourages employees to continue driving despite
fatigue and is irreconcilable with the purposes behind the
[STAA]." P.R.D. at 19. I find that Smith was disciplined
because he ceased driving on August 3 and September 23, 1989, due
to his fatigue, and I adopt the ALJ's findings on causation with
regard to the August 7 and September 26, 1989, warning letters.
P.R.D. at 17-19.
On October 17, 1989, Smith came off his rest at 2:00 a.m.,
at which time he became available for dispatch. He had gotten
sufficient rest and was "wide awake [n]o later than 3:00 or
3:30." T. 77. He called the line haul dispatcher twice during
the ensuing hours "trying to find out what the perspective was of
me going to work so I could try and adjust." T. 78 (Smith). The
dispatcher responded each time: "We're going to get to you."
Id. Smith finally returned to bed at 9:45 p.m. and
received a dispatch call at 10:15 p.m., 20 hours after having
become available early that morning. Exh. 18. He testified:
[PAGE 5]
I was too fatigued to accept a dispatch. . . .
I didn't see a reason to take that dispatch if
I knew I couldn't make the trip. They were
already disciplining me for taking a break
en route that was due to fatigue. If I took
another break en route, they were going to fire
me. . . . I knew I couldn't make it. I'd
been up too long.
T. 81. Smith was issued a warning letter "for refusing
work." Yellow convened a hearing on November 3, 1989, to
review Smith's overall work record and thereafter discharged him.
I agree with the ALJ that Yellow disciplined Smith in large
part because he refused the October 17 dispatch, as Yellow's
warning letter plainly states. I adopt the ALJ's findings on
causation with regard to the October 18 warning letter. P.R.D.
at 19-20.
With regard to the October 17 work refusal, I reject
Yellow's suggestion that Smith was "playing the board" in order
to obtain a more desirable dispatch. See T. 658-660
(Labor Trouble Operations Manager Boothe). The timing of
dispatch long after Smith had become available supports a finding
that he was fatigued. Moreover, Smith testified that he then
"got about seven hours, eight hours of sleep and called right
back on the board," i.e., advised dispatch on the
following morning that he was rested and available. T. 82-83.
Yellow asserts that it also considered three other incidents
in discharging Smith. On July 21, 1989, when departing the
Sydney, Ohio, terminal, Smith "cut a little too sharp" making a
hard right turn onto the highway because an oncoming car failed
to give him adequate clearance. He clipped the terminal mailbox
with his rear tandems, knocking it down. Smith and the terminal
manager repaired and repositioned the mailbox. Manager Gifford
testified that the damage to the mailbox was "slight," there was
no damage to the trailer, and Yellow incurred no expense in
repairing the mailbox. See T. 536-537, 590-593; Exh. 52.
On July 27, 1989, Yellow was unable to contact Smith for
dispatch because his pager was not operating properly. The
vendor subsequently replaced the pager. Smith had experienced no
difficulty with the pager in the 18 months that he had used it.
Exh. 78 at 61-64. Yellow does not permit drivers to list back-up
telephone numbers with dispatch. Id.
Yellow cited Smith for "excessive absenteeism" during
September 1989. Exh. 59. Smith had spent the seven days
involved conducting union business, namely participating in a
fund raising drive to repeal the Deregulation Act of 1980. T.
544-545. In resolving protests by two other drivers who
similarly participated in the drive, Yellow directed that their
[PAGE 6]
disciplinary letters be rescinded because the absences should
have been excused. T. 303-313 (Driver Raver); T. 348-354 (Driver
Hogan); T. 645-647 (Manager Boothe).
ANALYSIS
Yellow initially raises a timeliness issue. See
Resp. Br. at 4, n.2 (third paragraph). I agree with the ALJ's
finding that Smith's complaint was timely filed, and I adopt it
as supported by substantial evidence. 29 C.F.R. §
1978.109(c)(3). Cf. McCuistion v. Tennessee
Valley Authority, Case No. 89-ERA-6, Sec. Dec., Nov. 13,
1991, slip op. at 18, quotingMalhotra v. Cotter &
Co., 885 F.2d 1305, 1310 (7th Cir. 1989) ("past practices may
illuminate . . . present patterns of behavior").
Yellow also challenges the ALJ's decision on the merits. To
prevail on a STAA complaint, a complainant must establish that
the respondent took adverse employment action against him because
he engaged in an activity protected under Section 405. A
complainant initially must show that it was likely that the
adverse action, e.g., discharge, was motivated by a
protected complaint or work refusal. The respondent may rebut
such a showing by producing evidence that the adverse action was
motivated by a legitimate, nondiscriminatory reason. The
complainant then must prove that the proffered reason was not the
true reason for the adverse action. In the event that a
complainant demonstrates that the respondent took adverse action
in part because he engaged in a protected complaint or refusal,
the burden shifts to the respondent to demonstrate that the
complainant would have been disciplined even if he had not
engaged in the protected activity. Cf. Pogue v. U.S.
Dept. of Labor, 940 F.2d 1287, 1289-1290 (9th Cir. 1991);
Mackowiak v. University Nuclear Sys., Inc., 735 F.2d 1159,
1164 (9th Cir. 1984).
STAA Section 405(a) prohibits an employee's discharge
because he has filed a complaint "relating to a violation of a
commercial motor vehicle safety rule, regulation, standard, or
order . . . ." 49 U.S.C. app. § 2305(a). Internal
complaints, e.g., to an employer, are protected.
Protection is not dependent on actually proving a violation.
Yellow Freight System, Inc. v. Martin, 954 F.2d 353, 356-
357 (6th Cir. 1992). STAA Section 405(b) provides that "[n]o
person shall discharge . . . an employee . . . for refusing 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 health, or because of the
employee's reasonable apprehension of serious injury to himself
or the public due to the unsafe condition of such equipment." 49
U.S.C. app. § 2305(b).
Department of Transportation (DOT) regulation 395.3(a)
[PAGE 7]
provides: "[N]o motor carrier shall permit or require any driver
used by it to drive nor shall any such driver drive . . .
[m]ore than 10 hours following 8 consecutive hours off
duty . . . ." 49 C.F.R. § 395.3(a). Regulatory section
395.3(b) provides: "No motor carrier shall permit or require a
driver of a commercial motor vehicle to drive, nor shall any
driver drive . . . [h]aving been on duty 70 hours in any period
of 8 consecutive days if the employing motor carrier operates
every day of the week." 49 C.F.R. § 395.3(b)(2) . DOT
regulation 392.3 provides:
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.
49 C.F.R. § 392.3.
Smith thus engaged in protected activity when he declined a
dispatch on October 17, 1989, due to fatigue, when he declined to
continue driving on August 3 and September 23, 1989, due to
fatigue, and when he complained about or "protested" discipline
received because of these work refusals and because he had
counseled other drivers about DOT regulations. Smith's discharge
unquestionably constituted adverse action. P.R.D. at 16.
Causation also has been established as discussed supra.
P.R.D. at 17-20.
Smith did not forfeit STAA protection by failing to remove
himself from the board prior to being dispatched on October 17
or by failing to notify Yellow of his delays on August 3 and
September 23. SeeAssistant Secretary of Labor for
Occupational Safety and Health and Self v.
Carolina Freight Carriers Corp. (Self), Case
No. 91-STA-25, Sec. Dec., Aug. 6, 1992, slip op. at 8-11.
SeealsoAssistant Secretary of Labor for
Occupational Safety and Health and LaJoie v. Environmental
Management Systems, Inc., Case No. 90-STA-31, Sec. Dec., Oct.
27, 1992, slip op. at 10-14 (citing cases), appeal
docketed, No. 92-2472 (1st Cir. Dec. 28, 1992). In
Self, the Secretary found, in similar circumstances, that
a respondent's legitimate business interests in scheduling and
management did not outweigh the safety policies underlying the
STAA. Employing the reasoning set forth in the above cases, I
make the same finding here. In so doing, I emphasize that the
problem of driver fatigue pervades the transportation industry,
see T. 385-388 (Driver Hogan), and has resulted in
extensive DOT regulation. See, e.g., 49 C.F.R.
[PAGE 8]
§§ 392.3, 392.4, 395.8. I note that Smith's low
position on the seniority extra (hog) board explains his three
instances of fatigue in a three-month period. See T. 97
(Smith); T. 390-391 (Hogan); T. 411-419 (Manager Gifford).
Yellows argues that the ALJ failed to distinguish between
the legal requirements of STAA Sections 405(a) and 405(b). Resp.
Br. at 4 n.2, 21 and n.9. To the contrary, the ALJ designated
alleged violations under each section of the Act in his statement
of issues and set forth the text of each section in his statement
of applicable law. P.R.D. at 4-5. The issues are (1) whether
Yellow violated Section 405(a) by discharging Smith because he
complained, i.e., protested disciplinary warning letters,
and (2) whether Yellow violated Section 405(b) by discharging
Smith because he refused to drive when fatigued. The ALJ also
included Smith's allegations concerning communication of DOT
requirements under Section 405(a). P.R.D. at 22-23 (carryover
paragraph).
Moreover, Smith raised all of these issues in a timely
manner. Smith's April 27, 1990, complaint to the Occupational
Safety and Health Administration (OSHA) alleged that
Yellow Freight knowingly required him [and]
other drivers to operate commercial vehicles
while fatigued, that Yellow Freight knowingly
required him [and] other drivers to remain
in a state of readiness for extended
periods of time prior to a work call, [and]
that the rules promulgated by Yellow
Freight required him [and] other drivers
to drive while ill or face disciplinary
actions.
Exh. KK. Smith also complained about being "disciplined for
objecting to these practices." Id. Accordingly,
Smith's protests about the August, September, and October warning
letters comprised Section 405(a) complaints "relating to"
commercial motor vehicle safety regulations which were integral
to his charge that he was discharged for refusing to drive when
fatigued.
In a June 1990 statement explicating his complaint, Smith
complained about retaliation beginning in February 1989 because
of actively "educating other drivers about their rights" and for
"standing up for [his] Federal safety rights and for encouraging
others to stand up for their safety rights as well." Exh. 100 at
4, 8. Smith's protests about discipline resulting from his
February and March 1989 counseling activities thus similarly
comprised Section 405(a) complaints "relating to" safety
regulations. Moreover, where, as here, Yellow has raised Smith's
counseling of fellow drivers as a legitimate, nondiscriminatory
[PAGE 9]
reason for discharging him, it has consented to litigating the
propriety of its justification.
When Smith complained that Yellow's work rules unlawfully
conflicted with DOT regulations, Managers Gifford and Boothe
rejoined that Smith worked for Yellow, not for the DOT. T. 181-
184, 189 (Smith); T. 250-251 (Teamsters Business Agent Bell).
Bell also testified: "Smith here talked to alot of individuals
about the DOT. That was one of the problems the company didn't
like." T. 250. The repeated nature of the managers' comments
suggests ongoing animus. See P.R.D. at 23 (second full
paragraph).
The burden thus shifted to Yellow to demonstrate that Smith
would have been discharged even if he had not engaged in
protected activity. To this end, Manager Gifford testified
concerning Smith's nine-month work record, emphasizing that
following Smith's June 1989 suspension, a single disciplinary
infraction, e.g., the mailbox incident, would have
justified discharge. T. 607-610.
Evidence concerning Driver Klein's work record is contrary.
Gifford admitted that Klein was not discharged despite his
record, including the accidents discussed supra. T. 318-
320. Driver Hogan, who also served as a union steward, testified
specifically about Klein's record, T. 355-357; characterizing it
as "mediocre," i.e., "[a]n average work record. Some are
better. Some are worse." T. 356. In his view, Smith's record
was no worse than Klein's. T. 358. Business Agent Bell did not
believe that Smith's record justified discharge. T. 261-262. He
testified: "[O]ver several years of being an agent there, I've
seen other individuals had records worse than what [Smith] did
and didn't get a discharge." T. 264. Regarding Smith's fatigue
breaks, Driver Hogan testified: "[Smith] was disciplined for
taking extra breaks when he shouldn't of. You know anybody else
would have gone ahead and took regular breaks same as he did.
Half the guys over there take breaks and they don't get
disciplined." T. 385-386.
Upon consideration of the record, I find that Yellow has not
met its burden. I adopt the ALJ's findings listed under the
heading "dual motive." P.R.D. at 20-23.
ORDER
Respondent Yellow Freight System, Inc., is ordered
immediately to offer Complainant Willie W. Smith reinstatement to
his former position.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] Footnote two at page six of the P.R.D. is amended to read:
Department of Transportation regulations state that "no motor
carrier shall permit or require any driver used by it to drive
nor shall any such driver drive [m]ore than 10 hours following 8
consecutive hours off duty; or [f]or any period after having been
on duty 15 hours following 8 consecutive hours off duty."
49 C.F.R. § 395.3(a)(1) and (2)(1991). In addition, they
state that "[n]o motor carrier shall permit or require a driver
of a commercial motor vehicle to drive, nor shall any driver
drive . . . after [h]aving been on duty 70 hours in any period of
8 consecutive days . . . ." 49 C.F.R. §395.3(b).
[2] Gifford testified that he viewed such a notification
failure as violating work rule number eight, T. 570-571, which
states: "Drivers having en route breakdown or any other delays
must personally contact (by phone) the dispatcher on duty at
Columbus, Ohio." Exh. 2 at 2. In issuing the initial
disciplinary letter for this infraction, Gifford specified only
that "a problem exists." Exh. 22. The remaining letters specify
the infraction as either Smith's "failure to follow instructions"
or "delay of freight." Exhs. 26, 28, 31.
[3] Excluding, where applicable, the one half hour generally
required to conduct a pre-shift examination of his vehicle and
time spent changing vehicles, Smith's counseling lasted, at
minimum, 15 minutes and, at most, a little over an hour. Exhs.
21, 24, 27, 30.
