DATE: June 30, 1993
CASE NO. 92-STA-1
IN THE MATTER OF
ROBERT SPEARMAN,
COMPLAINANT,
v.
ROADWAY EXPRESS, INC.,
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 by the 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 set
forth below.
1. Facts
Complainant Robert Spearman has been employed by Respondent
Roadway Express, Inc., since 1968 as an over-the-road driver of
tractor trailers. Hearing Transcript (T.) 74-75. In August
1989, Spearman began complaining about Roadway's practice of
misrouting freight which resulted in driver fatigue due to
dispatch delays. [1] During late 1989 and throughout 1990,
Spearman complained to Roadway management, including the company
president, and to the International Brotherhood of Teamsters. In
January 1990, Spearman met with management, including Nashville,
[PAGE 2]
Tennessee, Relay Manager Roger Morrison, concerning his
complaint, and between March and October 1990, he grieved the
complaint. T. 75-76.
On October 25, 1990, Spearman was scheduled to depart at
5:00 a.m. on a bid run from Nashville to Lake Park, Georgia.
Prior to that time, at 2:45 a.m., Roadway dispatch placed
Spearman "on delay" for the run, i.e., directed him to
"stand by in readiness" to take the next available load.
Spearman telephoned dispatch at 8:15 a.m. "to see if they was
going to have a load for me anytime soon, because I had been
sitting there . . . ." T. 87-88 (Spearman). At 11:30 a.m.,
Spearman finally was dispatched with a set of double 28-foot
trailers containing hazardous material. T. 89. Spearman
testified:
I informed the dispatcher that I had been up,
and was getting into a fatigued situation
. . . . I said, "I've been up several hours
since you delayed me this morning." He . . .
said, "You're dispatched. If you don't like
your job . . . McDonald's is hiring senior
citizens." I said, "Yes, sir," and I left.
T. 81-82.
At 7:15 p.m., Spearman telephoned Nashville Dispatcher
Richard Castle after having pulled off the highway fatigued at
Unidella, Georgia. He also contacted Roadway's Atlanta dispatch
and received authorization to "[g]et a [motel] room and go to
bed." T. 82. See T. 351-352. On the following morning
Spearman completed the remaining two and one half hour trip to
Lake Park, Georgia. Upon arrival, Roadway's dispatcher directed
him to go back to bed despite his protestations that he had been
up for only a short time. Spearman testified: "[The dispatcher]
said, 'You're going to bed, we don't care how long you've been
up.' I said, 'Well . . . you're going to put me in a fatigued
situation this evening,' I said, 'I just slept the night,' I
said, 'I can't just sleep at the wheel.' He said, 'Go to bed.'"
T. 83.
At 6:30 p.m. on October 26, Spearman was dispatched to
Nashville. Spearman testified that when he complained that he
had been up all day, the dispatcher responded: "I don't want to
hear about your hours in service, or your fatigue problem" and
directed him to depart. T. 84. Spearman clocked off fatigued in
Jasper, Tennessee, at 2:45 a.m. on the morning of October 27. He
telephoned Nashville Dispatcher Castle to report his fatigue.
Spearman testified: "[Castle] said, 'Well, you're not but two
hours out of Nashville.' I said, 'I cannot make it no further.'
I said, 'I'm tired, I've been up too long.' He said, 'I guess
you're doing the right thing, go to bed.'" T. 84.
[PAGE 3]
When Spearman completed the trip to Nashville, he submitted
his motel bills and time records to Dispatcher Byron Parcell for
reimbursement. According to Spearman, Parcell responded: "'No
. . . you voluntarily took yourself out of service, and Roadway
is not responsible.'" T. 85. Dispatchers Castle and Parcell did
not testify at the hearing. Spearman testified that he never
previously had been denied reimbursement. T. 341-342.
Brady Wyatt, Chief Job Steward and a senior over-the-road
driver for Roadway, testified about a conversation that he
overheard in late 1990 between Roadway's Nashville Relay Manager
Morrison and Dispatcher Richard Agee. According to Wyatt,
Morrison instructed Agee not to "mark off" Spearman for any
reason. T. 176-177. (Drivers may be marked off, i.e.,
excused from running trips, prior to being placed on call. T.
178-179.) Wyatt also testified that other drivers are permitted
to mark off about "50 percent of the time." T. 183-184.
Drivers Jim Davis, Roger Beach, and Fred Brown testified
that Roadway's Nashville dispatchers routinely coerce drivers to
drive when fatigued and to exceed permissible hours of
service. [2] T. 189-193, 207-211, 214-220, 365-366. Davis also
stated that when drivers refuse to "run illegal," Roadway later
issues them warning letters for unrelated, minor infractions.
T. 189-190. He testified:
[E]verytime that I've . . . gone to bed,
trying to stay within the time limits that we
have to work with, the rules and regulations
that we've got to follow, when you come back
in, they go through your logs, and whatever
they can find, if you didn't dot an "i," or
just whatever they can find, whatever is
wrong with it, you get a [warning] letter
. . . . [Y]ou do exactly [what] they want
you to do. Now, this is what comes out of
that [dispatch] window, "When I tell you to
do something, you do it." There ain't no
if's, and's, or but's about it. . . . They
do not care if you don't have the hours to do
it. . . . It puts a strain on you. When you
have to go to that window and listen to some
of the stuff that comes out of it, you are
going to do this, you are going to do that
. . . . [T]he impression you get when you go
to the window, that you're going to do it or
else. . . . When you go up to that window,
you tell the dispatch that you've got such
and such hours, and they say "You're going."
[PAGE 4]
T. 208-211. Davis also testified that "a lot" of drivers run
illegal because the dispatchers threaten and harass them.
T. 211.
Davis stated that when he attempted to discuss dispatcher
coercion with Relay Manager Morrison, "the first words that come
out of his mouth was, 'You goddamn road drivers.'" T. 195. The
conversation deteriorated, with Morrison insisting that Davis
sign an hours card that did not require signature. T. 196.
Davis later received a warning letter for failure to complete the
card correctly. T. 206. Finally, Driver Brown testified that on
an occasion when he refused to exceed hours limitations,
Dispatchers Parcell and Castle subjected him to intense verbal
abuse. [3] See T. 361-363.
2. Analysis
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 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. SeeRoadway Exp., Inc. v. Brock, 830 F.2d
179, 181 n.6 (11th Cir. 1987). 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).
[PAGE 5]
Department of Transportation (DOT) regulation 395.3(a)
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 of 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.
Spearman thus engaged in protected activity (1) during late
1989 and throughout 1990 when he complained about Roadway's
practice of misrouting freight, see n.1, supra, (2)
on October 25, 26, and 27, 1990, when he complained about becoming
fatigued, and (3) on October 25 and 27 when he refused to
continue driving due to severe fatigue. With regard to the work
refusals, I find that the number of hours during which Spearman
remained awake awaiting dispatch and operating his vehicle [4]
establish that continued operation would have been unsafe.
49 C.F.R. 392.3.
Roadway maintains that it took no adverse action against
Spearman, i.e., that because Spearman was not otherwise
entitled to reimbursement for his motel expenses and time,
Roadway did not deprive him of an employment benefit. In
support, Roadway offered Relay Manager Morrison who testified:
"[W]e pay for all lodging when a driver leaves his home domicile
and gets to his destination point and goes to bed" but that they
did not pay for drivers who went to bed because they became ill
or fatigued between their home domicile and their destination.
[5] T. 418. Morrison offered the following explanation:
I have 200 and something drivers in
Nashville. . . . If we reimburse [Spearman]
for those motel bills, then that's sending a
message to a driver that he can be going to
Toledo and get to Senora and he may have a
girlfriend there, and he may decide to --
"Well, I'm too tired to go anywhere. I'm
[PAGE 6]
going to spend eight hours with my girlfriend
and Roadway will pay the motel." And, yes
we do have drivers that have girlfriends out
on the road. You know, it would fester. I'm not
saying that 215 drivers would do it, but it don't
take 215. Two today, two tomorrow six next
week, ten the week after. Stuff like that, it festers.
T. 420.
The ALJ rejected Morrison's testimony, crediting instead
testimony by long-time Roadway drivers that Roadway paid for
lodging expenses incurred during a run because of illness or
fatigue. R.D. and O. at 9-10 (carryover paragraph (par.)). This
finding is supported by substantial evidence, and I adopt it.
29 C.F.R. 1978.109(c)(3). In particular, Driver Wyatt, who was
"a job steward with an obvious opportunity to know the general
practices of Roadway," R.D. and O. at 9-10, testified
consistently that Roadway paid for lodging required during a run
due to illness, fatigue, or hours limitations. T. 179, 180-181,
184-186. Similarly, Driver Brown testified:
I was sick en route when I was in Memphis and
they was going to send me to St. Louis. I
told them I was coming down with the flu
. . . . They said, "Well, you're going to
have to go." I said, "There's two other
drivers over there." They said, "You're
still going to go." So, about Cape
Girardeau, Missouri, I went to bed with the
flu. I called them and told them "This is as
far as I can hang in. I've just got to quit,
go to bed." So, once again they said I took
myself out of service.
T. 366. Although not completely certain, Brown testified that he
thought Roadway paid the motel bill, id., and the ALJ
credited his testimony. R.D. and O. at 10. In adopting the
ALJ's finding, I am mindful of his opportunity to view the
demeanor of the witnesses at the hearing.
Driver Davis testified that on two occasions when he ran out
of hours and went to bed before reaching his destination, Roadway
paid for lodging. T. 189, 191-193, 200-201. Driver Walter
Williamson offered similar testimony. T. 369-371, 375-376. The
remaining drivers testified that Roadway always paid for their
lodging but did not specify whether they went to bed during their
runs or at their foreign domicile destinations. T. 215, 218,
387-388. They also testified that they generally required
lodging because they had exceeded their hours limitations and did
not recall having encountered Spearman's precise situation.
While Relay Manager Morrison testified that Roadway paid for
[PAGE 7]
a driver's lodging because "we put him to bed out of hours," T.
417, it bears noting that a driver's remaining hours routinely
were scheduled to coincide with his reaching his foreign domicile
destination or home domicile and that drivers who reached their
hours limitations before the end of their trips were pressured to
exceed the limitation instead of going to bed. See, e.g.,
T. 191-193, 361-364. One driver even testified that he received
warning letters for refusing to drive when out of hours and that
Roadway pressured him to falsify his logs in order to exceed an
hours limitation. T. 214-215. This testimony suggests that
Roadway was concerned primarily with the fact that Spearman's
protected activity interfered with its dispatch schedule. In any
event, in adopting the ALJ's finding that Roadway did not
distinguish in its reimbursement policy, I find it significant
that none of the driver witnesses was aware of Relay Manager
Morrison's asserted distinction. Spearman thus was entitled to
reimbursement, and Roadway's refusal to reimburse him constituted
adverse action.
Spearman also met the causation criterion of his prima facie
showing. Dispatcher Parcell clearly withheld the benefit because
Spearman had clocked off fatigued. [6] Spearman's complaints
about "getting into a fatigued situation" are so closely
associated with his work refusals that they more likely than not
motivated Parcell. Moreover, proceedings involving Spearman's
continuing complaint about misrouted freight were being resumed
during this time period. SeeJim Causley Pontiac v.
NLRB, 620 F.2d 122, 125 (6th Cir. 1980) (close proximity in
time between protected activity and adverse action strongly
supports an inference of discrimination). The record also
supports a finding that Parcell's denial was retaliatory. Relay
Manager Morrison's disparate treatment of Spearman for "mark off"
purposes demonstrates animus on the part of the Nashville
dispatch. In addition, as the ALJ noted, the record is replete
with specific incidences of dispatcher coercion and harassment
directed at drivers who attempted to comply with DOT fatigue and
hours limitations. Against this backdrop, Parcell likely
intended to deter future refusals in order to move freight in
violation of safety regulations.
I agree with the ALJ that Spearman made a prima facie
showing of unlawful discrimination. R.D. and O. at 10. I also
find that Roadway's proffered legitimate, nondiscriminatory
reason for denying Spearman reimbursement, i.e., to
dissuade drivers from visiting their supposed girlfriends, is
pretexual. Rather than any concern with girlfriends, what more
likely was Morrison's concern was the fact that some Nashville
drivers refused to be intimidated into violating DOT regulations.
[PAGE 8]
The ALJ also determined that under DeFord v. TVA, 700
F.2d 281 (6th Cir. 1983), Spearman could recover even absent a
showing that he was treated differently from other drivers when
Roadway refused to reimburse him for his lodging and time. R.D.
and O. at 9 (second full par.). In DeFord, the
complainant was subjected to unlawful discrimination under the
whistleblower provision of the Energy Reorganization Act because
he cooperated with the Nuclear Regulatory Commission (NRC). The
court stated:
It has . . . . been suggested by [the
employer] that [the complainant] should be
required to prove that he was treated
differently from other similarly situated
participants in the NRC investigation, but
this contention . . . must be rejected.
Inclusion of such a requirement among the
elements of a claim would take no account of
the possibility that more than one person
might be exposed to the same type of
discrimination. The statute is aimed at
preventing intimidation, and whether the
scope of such activity happens to be narrow
or broad in a particular case is of no
import. An employer should not escape
liability upon an otherwise valid claim, for
example, solely because it chose to
discriminate against three similarly situated
employees rather than only one; yet inclusion
of the suggested factor as a required element
of proof would allow precisely such a result
to obtain.
700 F.2d at 286, citingNLRB v. Jemco, Inc., 465
F.2d 1148, 1152 (6th Cir. 1972), cert. denied, 409 U.S.
1109 (1973) ("refusal to countenance 'the somewhat absurd result
that an employer could never be found in violation of [section
8(a)(3) of the National Labor Relations Act] so long as he was
careful to treat all employees alike, no matter how destructive
of employee rights his conduct may be'").
Roadway and the amicus curiae, Trucking Management, Inc.,
argue that this aspect of the ALJ's decision contravenes
RoadwayExp., Inc, v. Dole, 929 F.2d 1060 (5th Cir.
1991), a STAA case in which the employer unlawfully withheld
"delay time" pay from drivers who discontinued driving when they
encountered hazardous road conditions. The court stated:
Section 405(b) guarantees these drivers equal
economic treatment compared to other
[PAGE 9]
similarly situated drivers, not special economic
treatment. In the end, our analysis is quite simple:
We look to the plain words of the statute. It provides
that no person shall discriminate against an
employee with respect to the employee's
compensation. Whether there is discrimination
in compensation must, per force, be determined
by comparing the denial of compensation to some
established or expected norm, i.e., occasions on
which compensation is paid. Thus, here, the
Secretary must show some basis for an entitlement
to the compensation that these employees have been
denied.
929 F.2d at 1065 (emphasis and footnote omitted). The court
upheld the Secretary's decision on this basis, finding
substantial record evidence that Roadway paid other similarly
situated drivers delay time compensation in like circumstances.
Id. at 1065-1066. The court "discern[ed] no
conflict" between its decision and DeFord in that the
employee in DeFord who was unlawfully demoted "established
an entitlement to the job he occupied and therefore established
unlawful discrimination when he was removed from it for an
impermissible reason." Id. n.2.
I find the Roadway "entitlement" theory potentially
troublesome because it may unduly delimit employee protection.
Discrimination cases may well arise in "discretionary"
circumstances. For example, an employer may consider an employee
for a promotion "earned" and deserved due to exemplary job
performance but to which the employee is not strictly "entitled"
under the terms of his employment. Protection arguably could
extend to that employee if the employer decided against promotion
for an impermissible reason.
The entitlement theory also may prove difficult in cases of
harassment or intimidation, a consideration which concerned the
ALJ. R.D. and O. at 9 (first and second full pars.). In fact,
the Roadway court case involved just such a situation.
There, the Secretary found that "the main concern of the Roadway
dispatchers was to keep the dispatches going despite the
hazardous road conditions." Archie Long v. Roadway Express,
Inc., Case No. 88-STA-31, Sec. Remand Dec., Sept. 15, 1989,
at 24. While the dispatchers might authorize the drivers to
cease operation for short periods, e.g., at a restaurant,
they refused to authorize longer delays, e.g., at a motel.
In the latter instance, the dispatchers withheld authorization to
shut down, insisted that the drivers were "taking themselves out
of service," and denied them delay time pay. In short, when
drivers refused to continue, the dispatchers retaliated by
withholding the authorization to shut down. Id. at 25.
This response clearly was calculated to keep the drivers on the
road despite their legitimate safety concerns.
Roadway advanced a similarly coercive policy as motivation
[PAGE 10]
for denying Spearman reimbursement in the instant case. The ALJ
rejected Roadway's policy as not actually being in effect,
seeinfra at 9-10, and I adopted the ALJ's finding
as supported by substantial evidence. In the alternative, the
ALJ effectively found that such a policy, if in effect, would
violate the STAA. R.D. and O. at 9. Roadway's drivers are
dispatched to transport freight to foreign domiciles. Roadway,
as the employer, pays for lodging and time required by its driver
employees while on the road. Accordingly, drivers are entitled
to this benefit. If, at some point, Roadway should determine not
to offer the benefit across-the-board, it presumably may do so.
It would appear discriminatory, however, to deny the benefit,
once conferred, to drivers who engage in a variety of protected
activity. In other words, Roadway would be discriminating
against those protected employees by denying them a benefit
accorded to other employees. As discussed above, however, this
case does not raise this issue squarely due to the ALJ's
credibility finding. Because the issue may arise within a
distinct factual context bearing on its resolution, I decline to
decide it today.
ORDER
Respondent Roadway Express, Inc., is ordered to compensate
Complainant Robert Spearman for all back pay, motel bills, and
other costs and expenses, including attorney's fees, incurred by
him in bringing his complaint.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] Spearman complained that Roadway intentionally misrouted
freight in order to return foreign drivers to their domiciles
instead of dispatching local drivers to haul the freight directly
to its destination. As a result, the local drivers would be
required to wait in readiness for extended periods before being
dispatched which caused them to become fatigued in transit.
Spearman testified:
If they have a foreign driver in an area, and
I'm sitting at home, I'm not costing them
anything. The foreign driver, if he goes on
the clock, it could cost them additional
wages. Therefore, they use that misrouting
. . . to get him back home, which . . . takes
the freight completely out of round from
us . . . .
T. 78. See, e.g., Exh. C-2-N. For example, a driver at
home in his Nashville, Tennessee, domicile location may be
awaiting dispatch on the route that originates in Chicago,
Illinois, and progresses through Nashville and Atlanta, Georgia,
to Valdosta, Georgia. See Exh. C-2-A at 9. A load may
"create" in Chicago. T. 79. Instead of dispatching the load
from Chicago to Nashville on the first leg to Valdosta, Roadway
may misroute it to Cincinnati, Ohio, in order to return a foreign
driver present in Chicago to his domicile in Cincinnati. The
load then would proceed along a separate route which originates
in Toledo, Ohio, and progresses through Cincinnati and Atlanta to
Valdosta. Accordingly, that load would not become available for
dispatch out of Nashville.
[2] 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 that 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) (1992). 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).
[3] Brown telephoned Castle from a motel at a foreign domicile
to advise him that he (Brown) had driven 70 hours in eight days
and could not depart before he gained additional hours at
midnight. Nashville previously had directed Brown dispatched
when notified by the foreign dispatcher that he had insufficient
time remaining in which to return. Castle "jumped all over"
Brown, advising him ultimately that he "voluntarily had taken
himself out of service." T. 362-364. In contrast to
Spearman's case where Parcell used identical language to deny
reimbursement, Roadway eventually paid for Brown's motel
expenses. T. 364.
[4] On October 25, Spearman ceased operation after between 15
and 17 hours without sleep. T. 92, 343. Spearman's Driver's
Daily Log and a reconstruction of his work day show that he had
remained awake for 21 hours when he ceased operation on
October 27. See Exh. C-3.
[5] Morrison offered no documentation for his asserted
distinction. Under Article 50 of the Southern Conference Road
Supplement to the National Master Freight Agreement (NMFA),
Roadway is required to compensate drivers for layover time and
time spent on delay due to breakdown and impassable highways.
Neither the NMFA nor the Supplement appears to address
compensation for driver lodging.
