DATE: December 23, 1992
CASE NO. 92-STA-9
IN THE MATTER OF
JAMES R. HORNBUCKLE, JR.,
COMPLAINANT,
v.
YELLOW FREIGHT SYSTEM, INC.,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER
Before me for review is the Recommended Decision and Order
(R.D. and O.) issued on August 25, 1992, 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).
Complainant James Hornbuckle charges that Respondent Yellow
Freight System, Inc. (Yellow Freight), unlawfully disciplined him
for refusing to continue operating a commercial motor vehicle
when severely fatigued. STAA Section 405 protects employees who
refuse to operate a vehicle when such operation constitutes a
violation of any Federal regulations, and Department of
Transportation (DOT) regulations prohibit vehicle operation
"while the driver's ability or alertness is so impaired . . .
through fatigue . . . as to make it unsafe for him to begin or
continue to operate the motor vehicle." 49 C.F.R. § 392.3
(1991). In particular, Hornbuckle charges that Yellow Freight
violated the STAA by issuing him a "letter of information" for
delaying freight on April 9, 1991, and that progressive
discipline premised on his trip times on April 12 and 13, 1991,
similarly constituted retaliation for his April 9 work refusal.
[PAGE 2]
The ALJ found that although Hornbuckle made out a prima
facie case of unlawful discrimination, Yellow Freight
successfully rebutted his case by articulating legitimate,
nondiscriminatory reasons for imposing discipline which
Hornbuckle did not prove to be pretextual. These reasons
included Hornbuckle's abuse of Yellow Freight's dispatch policy
on April 9, his 15-minute delay of freight on April 12, and his
second break period and 18-minute delay in checking in with
dispatch on April 13. R.D. and O. at 14-17. Yellow Freight
also contends that Hornbuckle's STAA complaint encompassed only
the events of April 9, and that deferral to the outcome of
arbitration is appropriate, arguments which the ALJ rejected.
While I agree with the ALJ's findings on issues three (scope of
complaint) and four (deferral to arbitration), R.D. and O. at 10-
12, and adopt them as supported by substantial evidence, 29
C.F.R. § 1978.109(c)(3), I disagree with his disposition on
the merits.
1. Facts
Complainant Hornbuckle has been employed by Respondent
Yellow Freight as a long haul truck driver for over eight years.
In late 1990, when driving a "bid" run between his home terminal
in Charlotte, North Carolina, and Jacksonville, Florida,
Hornbuckle exceeded Yellow Freight's estimated trip times on two
occasions when he became fatigued en route and stopped in order
to sleep. Hornbuckle testified that during this period Yellow
Freight frequently held up freight shipments to facilitate
scheduling and he would not receive a timely assignment after
completing his required eight-hour rest. [1] Instead, Yellow
Freight would dispatch him at the end of his bid day and he would
be required to drive all night after having remained awake all
day awaiting dispatch. He received a "verbal" warning and
counseling for delaying freight in December 1990. [2]
Defendant's Exh. 29 at 1, 5. See Exh. RX 36 at 52-53, 69-
70. In March 1991, Hornbuckle resigned his Jacksonville bid and
transferred to the seniority extra or "hog" board for varied
assignment.
On April 8, 1991, Hornbuckle awoke at 5:00 a.m. at which
time he became available for dispatch. He telephoned the Yellow
Freight dispatchers frequently during the day and was told
repeatedly that a trip assignment was imminent. At 2:00 p.m.
dispatch finally directed him to report at 4:00 p.m. His
departure was delayed until 5:30 p.m. due to defective
equipment. [3] Hornbuckle became severely fatigued shortly
after midnight on April 9, and he slept "across the steering
wheel" for an hour and a half at a truck stop in Georgia. He then
telephoned dispatch to report his delay as required by Yellow
Freight before continuing to his destination of Jacksonville,
Florida. [4]
[PAGE 3]
On the trip from Charlotte to Jacksonville, Respondent
allocates 0.5 hours to pre-trip the vehicle, 8.0 hours for
driving (running) time, [5] one hour for meal breaks, and a
grace period of one hour. Hornbuckle spent 1.5 hours on pre-trip
inspection and vehicle repair, his running time totaled 8.5
hours, he took a one-hour meal break, and he required 1.5 hours
of sleep to dispel his fatigue. Consequently, excluding the
period initially required for moving the vehicle to the garage
and vehicle repair, Hornbuckle's trip time exceeded by one hour
Respondent's allocation for pre-trip, running, break, and grace
periods. Hornbuckle received a disciplinary "letter of
information" for delaying freight on April 9.
On the return trip from Jacksonville to Charlotte,
Hornbuckle was 30 minutes late reporting for dispatch. Yellow
Freight, which arranges for transportation of foreign drivers
from their motels to the Jacksonville terminal, appears to have
been responsible for this delay. See Hearing Transcript
(T.) 192; Defendant's Exh. 29 at 16. Hornbuckle spent 0.5 hours
conducting a pre-trip inspection, his return driving time totaled
8.0 hours, and he took two breaks which, in combination, totaled
1.75 hours. [6] Thus, Hornbuckle's total trip time of 10.25
hours came within Respondent's 10.50-hour allocation for pre-
trip, running, break, and grace periods.
Upon his return, Hornbuckle confronted Line Haul Operations
Manager Sowers about the letter of information. Hornbuckle
testified:
I told him I wanted this letter taken out of
my file. I told him he was in direct
violation of the Federal law, and by the time
I got back from Richmond I wanted it taken
out of my file. And I used one of his words
that he likes to use, that I wasn't going to
tolerate him trying to intimidate me into
driving when I was too tired to. . . . He
told me that it wouldn't be out of my
file. . . . And I told him, I said Ted, if
you get me on any reasonable amount of time,
I will put your freight down there for you
right where you want it, but I can't stay up
all day and work all night. I told him I
wanted it out of my file when I returned from
Richmond from my trip, and then I left.
Exh. RX 36 at 47-48.
On April 12, 1991, Hornbuckle was dispatched to Nashville,
Tennessee. He testified:
[PAGE 4]
I was called at four a.m. to be there at six
a.m. And I hit the clock and didn't get it
straight up, and I went back to sleep. Well,
once I did wake up, I called dispatch and let
them know that I had overslept. [T]hey give
you up to three hours to get to work if you
call and let them know that you're late.
During the trip, Hornbuckle experienced delays due to traffic
around a construction site near Knoxville.
On the trip from Charlotte to Nashville, Respondent
allocates 0.5 hours for pre-trip inspection, 9.0 hours for
running time, one hour of break time, and a one-hour grace
period, for a total allocation of 11.50 hours. Hornbuckle was
45 minutes late for dispatch. He spent 0.5 hours on pre-trip
inspection, 9.0 hours driving, and 1.5 hours on break. He thus
delayed freight approximately 15 minutes beyond Respondent's
schedule. [7] Hornbuckle received a warning letter for delaying
freight on April 12.
On April 13, 1991, Hornbuckle returned to Charlotte. His
departure was delayed briefly due to defective equipment.
Hornbuckle drove through heavy rain and fog during the entire
return trip. He testified:
It was raining so hard, you couldn't see 30
feet in front of you. It was so foggy you
couldn't see water standing in the road, cars
pulling off and on the road. They would pull
out because they couldn't see . . . and then
they would come back on in front of you. I
had that all the way over there. There was a
bad wreck there at Black Mountain coming off
that. Two tractor trailers starting off the
mountain, and the visibility was so bad that
one had run into the back of the other one
because he couldn't see him, and then a car
got into him. [T]he firemen standing out
there on the mountain trying to direct
traffic, two or three of them likely got hit
because you absolutely couldn't see them.
Exh. RX 36 at 61. [8] On the return trip from Nashville to
Charlotte, Hornbuckle spent 0.5 hours on pre-trip inspection,
9.0 hours driving, and 2.0 hours on break, thus meeting Yellow
Freight's 11.50-hour allocation for pre-trip, running, break,
and grace periods. Hornbuckle testified that he considered the
[PAGE 5]
second break on the return trip to be a "safety" break which he
required after driving in adverse weather and traffic conditions.
Exh. RX 36 at 61, 81. Upon arriving at the Charlotte terminal,
Hornbuckle spent 18 minutes situating his vehicle, removing his
belongings from the tractor cab, and reporting to the office.
While drivers are not compensated for this time, Yellow Freight
nonetheless claims that Hornbuckle exceeded his trip allocation
by these 18 minutes because he delayed turning in his bills to
dispatch. T. 153-154. Hornbuckle received a three-day
suspension for delaying freight on April 13.
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. Roadway 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 discrimination because an
employee 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." [9]
49 U.S.C. app. § 2305(b).
DOT regulation 392.3 provides:
[PAGE 6]
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.
I agree with the ALJ that Hornbuckle made a prima facie
showing. On April 9, 1991, he refused to continue operating his
vehicle when he became fatigued. Hornbuckle testified:
I left out of there at approximately five
thirty p.m. I traveled one hour to Chester,
South Carolina where I stopped and got some
coffee and filled my thermos. . . . I left
there and I traveled straight on through till
I got into Georgia and at that time, I had
already had a couple of people ask me if I
was alright because I was weaving on the
road.
T. 32. He also testified:
I was running off the side of the road. I
was crossing the line. And when you do that,
you feel yourself do it, it's instinct to
jerk it back over, and if you jerk a set of
doubles back over you're going to lay that
back one down, and there is a good chance you
could run off the bottom or across the median
and hit a car head-on. . . . And when I get
in that bad shape to where I know myself that
I can't continue going and do it safely,
that's when I pull over and stop.
Exh. RX 36 at 42. The fact that, at the time that he stopped,
he had been awake awaiting dispatch and driving for 19.5 hours,
since 5:00 a.m. on April 8, supports his claim of fatigue.
Hornbuckle thus engaged in protected activity under STAA Section
405(b) when he ceased driving for an hour and a half in order to
sleep. He recorded "driver fatigue" between 12:30 a.m. and 2:00
a.m. in his Driver's Daily Log which was submitted to Respondent,
Defendant's Exhibit 9, and cited it as the reason for his delay
when he spoke to Line Haul Operations Manager Sowers. I also
find that Hornbuckle's "complaint" to Sowers about the letter of
[PAGE 7]
information and his direction that it be removed from his file
was "relat[ed] to a violation of a commercial motor
vehicle safety rule, regulation, standard, or order" and thus
constituted a protected activity under STAA Section 405(a).
(Emphasis added); cf. District of Columbia v. Greater
Washington Board of Trade, No. 91-1326 (U.S. Dec. 14, 1992),
slip op. at 4 (statutory term "relates to" construed to mean
"refering to" or "having a connection with" thus "giv[ing] effect
to the 'deliberately expansive' language chosen by Congress").
Accordingly, Yellow Freight knew about Hornbuckle's protected
activity. Finally, in that Hornbuckle exceeded Yellow Freight's
allocation for pre-trip, running, break, and grace periods by one
hour, it follows that Yellow Freight disciplined [10] him for
the delay occasioned by the fatigue break.
In accepting Yellow Freight's "legitimate,
nondiscriminatory" reasons for discipline, the ALJ found
essentially that Hornbuckle forfeited his STAA protections by
failing to present himself for work in a rested condition,
"ignoring" Respondent's dispatch policies, and accepting the
Jacksonville, Florida, assignment. R.D. and O. at 14-15.
Accordingly, an examination of Yellow Freight's "policies" is in
order. On the one hand, Yellow Freight instructs its drivers
"that they should not operate fatigued. If they are not
physically fit, or they're tired . . . to stop . . . take a nap."
T. 110 (Sowers). On the other hand, it is Yellow Freight's
"policy and practice to discipline employees . . . when they
delay freight, regardless of whether it is fatigue related."
T. 163. CompareAssistant Secretary of Labor for
Occupational Safety and Health and Bill J. Self v. Carolina
Freight Carriers Corp., Case No. 91-STA-25, Sec. Dec., Aug.
6, 1992, slip op. at 7-8 (citing cases) ("[t]o permit an employer
to rely on a facially-neutral policy to discipline an employee
for engaging in statutorily-protected activity would permit the
employer to accomplish what the law prohibits").
If Hornbuckle had called dispatch before receiving his
assignment, he could have taken up to a six-hour "slide,"
i.e., postponed assignment for up to six hours. Only one
slide is permitted, however, and once called by dispatch for
assignment, drivers may not slide. T. 86-87; Exh. RX 36 at 19-
20. Hornbuckle testified that on April 8, "[t]he reason I didn't
remove myself from the board was because they kept telling me
we'll get you in a little bit, we'll get you in a little bit.
Then at the time when I was ready to remove myself from the
board, they called me." T. 65. In addition, I question whether
taking a slide before 2:00 p.m. would have benefited Hornbuckle.
He testified that he attempted unsuccessfully to nap while
awaiting dispatch and that he was not fatigued at 2:00 p.m., when
[PAGE 8]
called, at 4:00 p.m., when reporting, and at 5:30 p.m., when
departing. T. 26-27, 63-64, 87; Exh. RX 36 at 87. It is not
clear that sliding during this period would have provided
Hornbuckle meaningful rest.
At its discretion, Yellow Freight may permit drivers to
"mark off" the board for 24 hours in an emergency, but not
because of fatigue. T. 61-62, 119; Exh. RX 36 at 20-21. On
at least one occasion Yellow Freight offered to put a fatigued
driver on the sick board which holds the potential for discipline
under Article 46 of the collective bargaining agreement.
See Exh. RX 36 at 20-23. Yellow Freight may permit some
drivers to mark off on Mondays, Tuesdays, and Wednesdays, at which
time freight movement may be diminished, but presumably other drivers
will be required to move what freight there is on these weekdays
and the potential remains for delays in dispatch after drivers
come off their rest and consequent fatigue.
In short, Yellow Freight's policies offer no real measure
of protection against discipline. Hornbuckle testified: "My
position is that I'll take the dispatch if I think I can make the
trip. But also during the course of a trip, if I find out I
can't make it, I'm not going to continue driving because Yellow
[Freight] wants me to." T. 77. Yellow Freight has not shown
that its business interests in avoiding an hour's delay in
this instance outweighed the policies underlying the STAA,
particularly considering that Yellow Freight was notified of the
delay in advance. SeeAss't Sec'y and Self v. Carolina
Freight Carriers Corp., slip op. at 8-10. Thus I find that,
in the particular circumstances of this case, Yellow Freight's
policies did not afford Hornbuckle an opportunity to avoid
refusing work when he took a fatigue break on April 9 and that he
did not forfeit STAA protection by accepting the assignment on
April 8.
The remaining question is close. Hornbuckle charges that
Yellow Freight seized upon the events of April 12 and 13 in order
to discipline him when it actually was motivated by his April 9
work refusal and complaint to Manager Sowers about the letter of
information. In support, Hornbuckle testified generally that he
and other drivers previously had exceeded trip times without
being disciplined. Exh. RX 36 at 57-58. Driver Richard Lightner
testified that he had exceeded the trip time between Charlotte
and Nashville without receiving disciplinary letters. T. 94-95.
Evidence offered by Yellow Freight regarding discipline for
freight delay is inconclusive in that the examples do not appear
parallel to Hornbuckle's circumstances and are not explained
completely. See T. 163-166 (Sowers); Defendant's Exh. 33.
Additional testimony by Manager Sowers is revealing,
however. In explaining estimated trip times shown on Defendant's
Exhibit 4, Sowers testified:
[PAGE 9]
This was an agreement between [the Union] and
Yellow Freight that these would be the
running times from Charlotte to each terminal
listed. . . . In addition to the running
times, the company does allow a half an hour
for a pre-trip, a one-hour meal stop, and a
one-hour grace period. So in essence, it
doesn't say minimum and maximum running time,
but really that's what it is. . . . We would
not counsel with any driver that was not more
than an hour late, unless he was on every
trip or frequently running more than an hour
late. Then we would call, if a driver was
habitually taking his hour grace period every
trip, we would call the driver in and ask why
he was taking all the time and we would check
other comparable drivers to see if they were
taking the time. . . .
T. 121-122. Driver Lightner offered similar testimony when he
responded that, if a driver took two one-hour breaks rather than
the single break permitted, Yellow Freight managers would "look
into it, they'd wonder why. . . ." T. 100. Here, however,
Sowers did not "call [Hornbuckle] in and ask why" he was delayed
on April 12 or why he took a second break on April 13. [11] Had
Sowers asked, he would have discovered that Hornbuckle required a
second break because of severe weather and heavy traffic, for
which the grace period legitimately may be factored in. T. 122-
123, 189 (Sowers).
Discipline deriving from the 18 minutes Hornbuckle required
at the Charlotte terminal on April 13 to remove his belongings
from the tractor and submit his paperwork to dispatch also is
troublesome. Sowers testified that 18 minutes was "excessive
time," with "five, six, seven minutes" being normal. T. 153. He
explained: "The company does not require a driver to carry along
any personal belongings. You would expect him to . . . get out
of his unit, walk directly to the dispatch. . . ." Id.
To the contrary, Hornbuckle reasonably would have taken personal
belongings since the Charlotte-Nashville run averages close to
ten hours of driving time, followed by eight hours of off duty
time. 49 C.F.R. § 395.3.
Based on the evidence discussed above, and particularly
on Manager Sowers' failure to follow his procedures in this
instance, T. 121-122, I find that the warning letter and the
three-day suspension were issued in retaliation for Hornbuckle's
protected activity.
ORDER
Respondent is ordered to expunge from Complainant's
employment file(s) the letter of information issued on April 11,
1991, for delay of freight on April 9, 1991; the warning letter
issued on April 16, 1991, for delay of freight on April 12, 1991;
and the letter of suspension issued on April 16, 1991, for delay
of freight on April 13, 1991. Respondent additionally is ordered
to compensate Complainant for any lost wages, terms, conditions,
and privileges of employment, including interest computed under
29 U.S.C. § 6621.
Counsel for Complainant is granted a period of 20 days from
receipt of this Decision and Order to submit any petition for
costs and expenses, including attorney's fees. 49 U.S.C. app.
§ 2305(c)(2)(B). Respondent thereafter may respond to any
petition within 20 days of its receipt.
SO ORDERED.
LYNN MARTIN
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] Hornbuckle testified that Yellow Freight effectively
"delays" freight in order to schedule return loads, to "match"
loads, and to avoid paying drivers at special rates, e.g.,
holiday rates. Exh. RX 36 at 50, 75-76.
[2] Line Haul Operations Manager Ted Sowers testified generally
that "[d]ispatchers were tell[ing] [him] that Mr. Hornbuckle was
calling in claiming driver fatigue, taking naps." Hearing
Transcript (T.) 126. See T. 179. The remainder of the
record discloses only two or possibly three specific complaints
about delay. T. 186; Defendant's Exh. 29 at 1, 5; Exh. RX 36 at
69-70. Accordingly, substantial evidence does not support the
ALJ's finding that "Respondent has established a pattern of delay
of freight by Complainant," R.D. and O. at 16, and I decline to
adopt it. (In this regard, the investigation findings of the
Assistant Secretary for Occupational Safety and Health have
effect only if unchallenged. 29 C.F.R. § 1978.105(b)(2).
In the event that a hearing is requested, they are not accorded
weight in any decision in the case. Holloway and Murray v.
Lewis Grocer Co., Case No. 87-STA-16, Sec. Dec., Jan. 25,
1988, slip op. at 2 n.2, aff'd in relevant part, 874 F.2d
1,008 (5th Cir. 1989).)
[3] Hornbuckle's assigned trailer apparently had experienced a
tire "blow-out" which had bent the mud flap and bracket against
the tire. Hornbuckle testified:
[The] mud flap . . . and brackets and all
that holds it on were bent and that
constitutes a blow-out somewhere. Sometimes
it will just wipe it completely off, and
other times it will just bend it under. And
evidently whoever fixed it on the road didn't
take it the rest of the way off, they just
bent it all up. . . . I found somebody to
verify that I hadn't moved the unit yet.
It's still sitting there and bent like that.
T. 40. He also explained: "I couldn't move the unit until I got
somebody else to look at it, or they would have said I was the
one who hit something, and fire me for it. Everything has to be
verified." Id.
[4] Hornbuckle testified that he called in as required and
spoke to Dispatcher Jay Poindexter. Driver Ralph Felts'
testimony supports Hornbuckle's account. T. 89-91. Manager
Sowers testified that he was not apprised that Hornbuckle had
called in. Sowers also testified that the Jacksonville, Florida,
dispatch would have reported Hornbuckle even if he had called in.
T. 185-186. Dispatcher Poindexter did not testify at the
hearing. I find that upon completing his fatigue break at 2:00
a.m. on April 9, Hornbuckle notified Yellow Freight of his delay.
[5] The running time represents a minimum travel time set to
prevent speeding and to avoid "run around" for senior drivers.
If a junior driver completes the trip in less than the allocated
running time and a senior driver arrives on time, "the junior
driver has to wait until that senior driver's eight hours of rest
[are] up before the junior driver can be called to work."
T. 123-124. If the junior driver arrives first and the senior
driver exceeds the running time, the junior driver may be
dispatched after his eight hours of rest "plus the hot time."
T. 124.
[6] Hornbuckle's initial break was extended unexpectedly when,
after stopping in part to call in to dispatch, he found that his
tractor and tandem trailers had been blocked by other trucks and
he was required to find the drivers so that they could move their
trucks. Defendant's Exh. 25 at 38.
[7] The ALJ found that two other drivers traveling from
Charlotte to Nashville with Hornbuckle did not exceed the
allocated trip times. R.D. and O. at 16. The record shows that
Driver Richard Lightner met the schedule. Like Hornbuckle,
Driver E.R. Bailey was late for work, T. 40, and the record is
not clear on whether he met the schedule. When Hornbuckle and
Lightner, who were traveling ahead of Bailey, became delayed in
traffic around Knoxville, they radioed Bailey so that he could
take the bypass and avoid the traffic. T. 40-41. Bailey arrived
at the Nashville destination before Hornbuckle and Lightner.
Id.
[8] Driver E.R. Bailey confirmed Hornbuckle's account.
Accordingly to Bailey:
It was raining and foggy the entire way and
at times was so intense you had visibility of
about 30 feet and water standing in the road
everywhere. Cars were pulling on and off the
roadway making driving very hazardous. There
was also an accident at the top of Black
Mountain involving two tractor trailers and a
car which blocked the road briefly.
Exh. RX 36 at Depo. Exh. 9; Defendant's Exh. 24.
[9] Protection under the second criterion also requires that
"[t]he unsafe conditions causing the employee's apprehension of
injury must be of such nature that a reasonable person, under the
circumstances then confronting the employee, would conclude that
there is a bona fide danger of an accident, injury, or serious
impairment of health, resulting from the unsafe condition" and
that "the employee must have sought from his employer, and have
been unable to obtain, correction of the unsafe condition."
[10] The letter of information constituted adverse action.
Although not provided for under the collective bargaining
agreement, these letters comprise a step progressing employees in
the disciplinary sequence at Yellow Freight's Charlotte, North
Carolina, facility. T. 112-113, 187 (Sowers).
[11] Hornbuckle testified that following the April 9 work
refusal,
I was on my way going out then to
Richmond, Virginia, and I told
[Sowers] when I come back, I want
this letter out of my file. And
when I arrived back [I] saw that
not only did I not have the letter
taken out of my file, I had three
more in there.
T. 36.
