DATE: February 2, 1993
CASE NO. 92-STA-30
IN THE MATTER OF
ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH,
PROSECUTING PARTY,
and
ROBERT KILLCREASE AND
DENISE KILLCREASE,
COMPLAINANTS,
v.
S & S SAND AND GRAVEL, 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 on October 8, 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). The ALJ
has recommended that the Complainants should prevail in their
complaints of unlawful discrimination. I agree generally with
his recommendation as outlined below.
A.
Respondent first asserts that it is not subject to the STAA.
[PAGE 2]
Resp. Objection at 2-3. STAA Section 405(a) provides that
"[n]o person shall discharge . . . any employee . .
. because such employee . . . has filed any complaint . . .
relating to a violation of a commercial motor vehicle safety
rule, regulation, standard, or order . . . ." 49 U.S.C. app.
§ 2305(a) (emphasis added). 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 . . . ." 49 U.S.C. app. § 2305(b)
(emphasis added). A "person" is "one or more individuals,
partnerships, associations, corporations, business trusts, or any
other organized group of individuals" for purposes of the
subchapter, 49 U.S.C. app. § 2301(4), and would include
Respondent. An "employee" is a driver of a commercial motor
vehicle, a mechanic, a freight handler, or any individual other
than an employer "who is employed by a commercial motor carrier
and who in the course of his employment directly affects
commercial motor vehicle safety . . . . " 49 U.S.C. app.
§ 2301(2). [1] A "commercial motor vehicle" includes "any
self-propelled . . . vehicle used on the highways in commerce
principally to transport passengers or cargo" with a gross
vehicle weight rating of ten thousand or more pounds. 49 U.S.C.
app. § 2301(1). The term "commercial motor carrier" is not
defined in the subchapter but has been interpreted to include
motor carriers and motor private carriers described at 49 U.S.C.
§ 10102(13), (14), (15), and (16) (1988). [2] See
29 C.F.R. § 1978.101(e).
The Complainants in the instant case are individuals other
than an employer (1) who were employed by a commercial motor
carrier and (2) who directly affected commercial motor vehicle
safety in the course of their employment. Respondent,
Complainants' employer, is a private carrier engaged in truck
transport of sand and gravel which it mines, processes,
transports by commercial motor vehicle, and sells. Exhibit R-2.
Accordingly, Respondent reasonably constitutes a variety of
commercial motor carrier covered under STAA Section 405.
See n.2, supra. Respondent also constitutes an
employer within the STAA definition. Its business affects
commerce in that it regularly transports sand and gravel, mined
and processed at its pit and plant in Lenox, Alabama, to customer
facilities in Robertsdale, Mobile, Atmore, and Andalusia,
Alabama. At least two of its drivers transported sand and gravel
to a concrete company customer in Navarre, Florida. See
Hearing Transcript (T.) 131, 137-138 (Driver Thomas hauled 12
Florida trips during his 18-month tenure); T. 109-110 (Florida
trips reportedly were made several times a week with some weekly
lapses). See also[PAGE 3]
R.D. and O. at 6-7 (carryover paragraph (par.)). Respondent
occasionally backhauls sodium nitrate from Florida to Alabama
factories on a contract basis. Exhibit R-2. Respondent assigns
employees to operate commercial motor vehicles in connection with
its business.
In the course of their employment, Complainants operated
commercial motor vehicles on National Interstate Highways. R.D.
and O. at 4 (first full par.). Complainants' manner of vehicle
operation and the condition of their equipment thus "affected"
commercial motor vehicle safety. SeeHowe v. Domino's
Pizza Distribution Corp., Case No. 89-STA-11, Sec. Dec., Jan.
25, 1990 (adopting ALJ R.D. and O.) (test is not whether a state
line is crossed but whether the vehicle is driven on a highway,
directly affecting motor vehicle safety).
The fact that Respondent's drivers regularly operate
vehicles on National Interstate Highways also supports a finding
that Respondent and its employees are engaged "in commerce."
See, e.g., T. 131-133, 232. Tow truck operators servicing
portions of National Interstate, U.S., or interconnecting State
Highways have been held to exert a substantial impact on
interstate commerce. Brennan v. Keyser, 507 F.2d 472,
474-475 (9th Cir. 1974), cert. denied, 420 U.S. 1004
(1975) (operators performing work on highways serving as
interstate connections engaged in commerce for purposes of Fair
Labor Standards Act coverage); Gray v. Swanney-McDonald,
Inc., 436 F.2d 652 (9th Cir.), cert. denied, 402 U.S.
995 (1971) (same). Depending on their manner of operation in
traveling interconnecting routes, e.g., whether in or out
of compliance with safety regulations, intrastate haulage drivers
similarly may facilitate or impede the course of interstate traffic
and thus substantially affect interstate commerce. Having driven
Respondent's trucks intrastate on major thoroughfares, Complainants
constituted drivers of commercial motor vehicles, i.e., cargo
transport vehicles "used on the highways in commerce . . .
." Accordingly, Complainants and Respondent are covered under
STAA Section 405. R.D. and O. at 8 (first full par.).
I am aware that Respondent possibly may not comprise a
"motor private carrier" for certain regulatory purposes because
that classification apparently can require a quantum of
transportation between States or across national boundaries. [3]
For example, Department of Transportation regulation, 49 U.S.C.
§§ 3101-3104, and regulation by the Interstate Commerce
Commission (ICC), Title 49, Subtitle IV, have been delimited in
this manner. See 49 U.S.C. § 10102(16)(A), referring
to 49 U.S.C. § 10521(a)(1) and (2). But see 49 U.S.C.
§ 11501 (ICC authority over intrastate transportation).
STAA Section 405, however, with its remedial purpose,
[PAGE 4]
applies to the more generic "commercial motor carrier," a term
which is not specially defined under either Chapter 101 of
Subtitle IV, Title 49 or STAA Section 401 (providing definitions
exclusively for Subchapter I, Chapter 32 (commercial motor
vehicle safety) of Title 49-Appendix, 49 U.S.C. app. §§
2301-2307 (1988 & Supp. III 1991). [4] Absent a statutory
definition, it appears appropriate to accord "commercial,"
deriving from "commerce," its legal meaning. The legislative
history of the STAA additionally militates in favor of construing
the term expansively to describe motor carriers "in" or
"affecting" commerce. See H.R. Conf. Rep. No. 987, 97th
Cong., 2d Sess. at 163-164, reprinted in 1982 U.S. Code Cong.
& Admin. News (USSCAN), 3639, 3744-3745. [5]
B.
Respondent also challenges the ALJ's decision on the merits.
Resp. Objection at 3-6. 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." [6]
49 U.S.C. app.
[PAGE 5]
§ 2305(b).
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 off duty . . . ."
49 C.F.R. § 395.3(a)(1991). 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 60 hours in any 7 consecutive days if
the employing motor carrier does not operate every day in the
week . . . ." 49 C.F.R. § 395.3(b)(1) [7] . Respondent
normally operated a five-day workweek, from Monday to Friday.
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.
Complainants resided at a location between Respondent's
Lenox, Alabama, pit and the Hosea Weaver plant in Robertsdale,
Alabama, which is designated "HOW2" on Exhibit RX-1. The driving
time between the Lenox pit and Complainants' residence is about
an hour, and the driving time from Complainants' residence to
Robertsdale similarly is about an hour. T. 45, 54, 106-107. It
requires 1.75 hours to travel directly from Lenox to Robertsdale,
with the roundtrip consuming 3.5 hours. T. 33, 69. The
roundtrip time from Lenox to the Hosea Weaver plant in Mobile,
Alabama ("HOW1"), is 4.0 hours. T. 106-107. A total of 2.0
hours is required to travel from Lenox to Atmore, Alabama
("ARM"), and return. T. 54.
The following reconstruction of Complainants' on-duty hours
during the week of November 11-15, 1991, derives from Exhibit
RX-1. Column eight of the exhibit lists the times at which
Complainants were loaded with sand or gravel prior to delivery
at the designation listed in column two. At 4:11 p.m. on Friday,
November 8, 1991, Robert Killcrease, driving truck number six,
see column five, was loaded for a delivery to Robertsdale
("HOW2") to be completed on Monday, November 11. On Monday
morning, Mr. Killcrease departed his residence and drove his
loaded truck to Robertsdale, a one-hour trip. He then drove 1.75
hours to Lenox for reloading which was completed at 3:13 a.m.
[PAGE 6]
Accordingly, Killcrease must have departed his residence for the
first trip to Robertsdale at about 12:30 a.m. Killcrease
completed four additional trips to Robertsdale throughout the
day, with his last trip being loaded at 2:28 p.m. Assuming
Killcrease then spent 1.75 hours driving the truck from Lenox to
Robertsdale to make the delivery and 1.0 hours driving the truck
from Robertsdale to his residence, he remained on-duty 17.0 hours
on November 11.
Applying this method to Exhibit RX-1 results in the
following reconstruction:
DateTime On-dutyTime Off-
dutyOn-duty hours
11/09/91 off-duty off-duty 0
11/10/91 off-duty off-duty 0
11/11/91 12:30 a.m. 5:30 p.m. 17.0
11/12/91 3:30 a.m. 4:30 p.m. 13.0
11/13/91 4:30 a.m. 5:00 p.m. 12.5
11/14/91 2:30 a.m. 9:30 a.m. 6.0
11/15/91 3:00 a.m. 4:30 p.m. 13.5
Although, on November 11, Mr. Killcrease initially departed
his residence with a preloaded delivery, he did not testify
specifically that any of the remaining initial deliveries had
been loaded on the preceeding day. Accordingly, the
reconstruction includes one hour of on-duty driving time from
his residence to the Lenox pit prior to his being loaded for the
first trip of each day. Killcrease's on-duty time for the seven
consecutive days ending on Friday, November 15, 1991, totaled
62.0 hours and he thus was prohibited under 29 C.F.R.
§ 395.3(b)(1) from driving on Saturday, November 16.
Mrs. Killcrease's on-duty time driving truck number 8 is
reconstructed as follows:
DateTime on-dutyTime
off-dutyOn-duty hours
11/9/91 off-duty off-duty 0
11/10/91 off-duty off-duty 0
[PAGE 7]
11/11/91 12:30 a.m. 5:30 p.m. 17.0
11/12/91 3:30 a.m. 12:30 p.m. 9.0
4:00 p.m. 7:30 p.m. 3.5
11/13/91 4:00 a.m. 5:00 p.m. 13.0
11/14/91 2:30 a.m. 12:30 p.m. 10.0
11/15/91 5:30 a.m. 5:00 p.m. 11.5
On-duty hours on December 12 are separated to reflect a possible
break after 12:30 p.m. when Mrs. Killcrease reasonably would have
completed the delivery to Robertsdale that she loaded at the
Lenox pit at 9:39 a.m. Her final delivery on December 12 was
loaded at 4:24 p.m., and the reconstruction credits her an
additional 3.5 hours for that delivery. Mrs. Killcrease
testified that on Friday, November 15 she made two deliveries to
Robertsdale ("HOW2") and that the first delivery had been
preloaded on November 14, T. 53, presumably at 11:32 a.m.
See Exh. RX-1. Accordingly, the reconstruction marks her
(1) off-duty at 12:30 p.m. on November 14 after driving loaded
from the Lenox pit to her residence and (2) on-duty at
approximately 5:30 a.m. on November 15 when she presumably
departed her residence to drive 1.0 hours to Robertsdale and then
1.75 hours to the Lenox pit for her 8:14 a.m. reloading. Mrs.
Killcrease's on-duty time for the seven consecutive days ending
on Friday, November 15 totaled 64.0 hours and she thus was
prohibited under 49 C.F.R. § 395.3(b)(1) from driving on
Saturday, November 16.
Mrs. Killcrease testified generally that she often loaded
her initial day's delivery during the previous evening and parked
the loaded truck overnight at her residence. T. 86-87. Assuming
this to be the case, several of the initial deliveries to Robertsdale
would have arrived well before the plant opened at
6:00 a.m., a practice which had been curtailed. T. 73, 127-128.
In any event, I note that reconstructing Exhibit RX-1 to reflect
loading during the previous evening also shows that the
Killcreases exceeded the 60-hour limitation. See R.D. and
O. at 17-19 and n.4.
Respondent's superintendent Mike Hyatt testified that he
discharged Mrs. Killcrease because she refused to work on
Saturday, November 16, 1991. [8] As she explained to Hyatt, she
refused work because she was ill and "out of hours." T. 222-223.
The ALJ credited her testimony about her illness, finding
essentially that she engaged in protected activity under STAA
Section 405(b) by refusing to work because she was too ill to
operate her vehicle safely. 49 C.F.R. § 392.3. See
R.D. and O.
[PAGE 8]
at 15-16. This finding is supported by substantial evidence, and
I adopt it. 29 C.F.R. § 1978.109(c)(3). As discussed
above, Mrs. Killcrease also was protected for refusing work
because she had exceeded the regulatory 60-hour limitation. 49
C.F.R. § 395.3(b). As Respondent has advanced no legitimate,
nondiscriminatory reason for discharging Mrs. Killcrease, I find
that she has prevailed on the merits of her complaint.
Supervisor Hyatt testified that he discharged Robert
Killcrease (1) because of his wife's work refusal, (2) because of
his complaints about excessive hours of work and inadequate truck
maintenance and repair, and (3) because of customer complaints.
T. 211, 222-230. The ALJ rejected Respondent's "customer
complaint" rationale as pretextual. Substantial evidence
supports this finding, and I adopt it. See R.D. and O. at
20 (all full pars.), 21-22 (carryover par.), 23 (second and third
full pars.). Respondent's second rationale, that Killcrease made
safety complaints, i.e., expressed dissatisfaction with
work hours and shop performance, is protected activity under STAA
Section 405(a). With regard to this rationale, I agree with
the ALJ that Respondent's reliance on Killcrease's manner of
complaining in discharging him was pretextual. [9] R.D. and O.
at 21-22, 23 (third full par.), 23-24 (carryover par.). Finally,
Hyatt's testimony shows that Mrs. Killcrease's refusal served as
the "final straw" precipitating his decision to discharge her
complaining husband and that he (Hyatt) anticipated that her
husband similarly intended to complain and refuse work. T. 228-
229. Regardless of whether Robert Killcrease formally refused
work, these motivations for discharging him were improper.
Cf. Brock v. Richardson, 812 F.2d 121, 123-125 (3d
Cir. 1987) (employee protection provision of Fair Labor Standards
Act (FLSA) not rendered inapplicable if employer's belief that
employee engaged in protected activity proves false; decision
cites National Labor Relations Act precedent); Marshall v.
Georgia Southwestern College, 489 F. Supp. 1323, 1331 (M.D.
Ga. 1980), aff'd, 765 F.2d 1026, 1037-1038 (11th Cir.
1985) (FLSA prohibited retaliation against husband because his
wife filed complaints). In any event, Hyatt admitted that he
discharged Killcrease in part because of his protected
complaints, and Respondent has not demonstrated that Killcrease
would have been discharged even if he had not complained. I find
that Robert Killcrease has prevailed on the merits of his
complaint.
ORDER
Respondent offered Complainants reinstatement effective
June 15, 1992, which they declined. Respondent is ordered to:
1. Compensate Complainant Denise Killcrease for back pay in
the amount of $7,000.00 with appropriate adjustment for interest
accruing through the date of payment;
2. Compensate Complainant Robert Killcrease for back pay in
the amount of $6,711.60 with appropriate adjustment for interest
accruing through the date of payment;
3. Pay prejudgment interest on the back pay amounts under
Section 6621 of the Internal Revenue Code for use in computing
interest charged on underpayment of Federal taxes;
4. Expunge from its records all material and references, if
any, pertaining to the protected activity and discharges of
Complainants;
5. Pay reasonable attorney's fees and costs, if any,
incurred by Complainants in bringing this proceeding.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] A related term, "employer," is "any person engaged in a
business affecting commerce who owns or leases a commercial motor
vehicle in connection with that business, or assigns employees to
operate it in commerce, but such term does not include the United
States, any State, or a political subdivision of a State . . . ."
49 U.S.C. app. § 2301(3).
[2] A motor carrier either (1) holds itself out to the general
public to provide motor vehicle transportation for compensation
(motor common carrier) or (2) provides motor vehicle
transportation for compensation under a continuing agreement
(motor contract carrier). A motor private carrier transports
property owned by it, via motor vehicle, for sale or to further
a commercial enterprise.
[3] As discussed above, some portion of Respondent's business
involved transporting its product to a customer in Florida. T.
131, 186-187, 189, 216.
[4] 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. Recent amendment has added Sections
407 and 408, 49 U.S.C. app. §§ 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.
[5] The House Conference Report noted Department of
Transportation authority to regulate "primarily with regard to
vehicles that cross State lines or national boundaries or perform
the intrastate portion of a continuous interstate movement" and
expressed the intent to extend that authority so that "commercial
motor vehicle operations both in and affecting interstate
and foreign commerce" are regulated under the safety subchapter
(now 49 U.S.C. app. §§ 2301-2307). H.R. Conf. Rep. No.
987 at 163, 1982 USCCAN at 3744 (emphasis added). Coverage under
the subchapter extends, for example, to vehicles designed to
transport ten or more persons to ensure "the highest levels of
safety in this particularly important transportation area." H.R.
Conf. Rep. at 164, 1982 USCCAN at 3745. Elsewhere in Title 49
coverage generally is limited to vehicles designed to transport
15 or more persons. Compare with other covering
provisions where Congress explicitly has specified application,
e.g., 49 U.S.C. app. § 2306(f) (commercial motor
vehicle; meaning limited to section); 2314(c)(3)(interstate
system); 2315(b)(2) (national intercity truck route network);
2503(1) (commercial motor vehicle); 2503(4) (interstate
commerce); 2503(5) (intrastate commerce); 2515(b) (commercial
motor vehicle).
[6] Protection under this 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."
[7] On-duty time is "[a]ll time from the time a driver begins
to work or is required to be in readiness to work until the time
he is relieved from work and all responsibility for performing
work." 49 C.F.R. § 395.2(a). It includes time spent
waiting to be dispatched; time spent inspecting, servicing, or
conditioning equipment; time spent loading or unloading a
vehicle, attending a vehicle, remaining in readiness to operate a
vehicle, or in giving or receiving receipts for shipments; time
spent repairing, obtaining assistance for, or remaining in
attendance upon a disabled vehicle; and time spent driving a
vehicle. Id.
[8] Mrs. Killcrease's "refusal" also resembles a complaint.
She testified regarding her telephone conversation with Hyatt:
I said, well, Mike, I heard we had, you know,
rumors going around that we're supposed to
work this weekend. He said, that's right,
Denise. I said, well, I don't know what
we're going to do. I said, I'm just not
physically able do you have a driver you can
put on the truck. [H]e said, if you can't
drive the trucks when we need you to then I
guess the best thing for you to do is bring
them in and park them. I told him, I said,
you can't mean to tell me that you're going
to fire me after we've already hauled 17
loads this week . . . . He said, well,
evidently you and Robert have been
dissatisfied with the hours for a long time
and he said, this way you won't have to worry
about it anymore. . . . I said, we'll bring
them up there and load them, I said, it'll be
alright. It's okay. And I hung the phone
up.
T. 38-39. The Killcreases then proceeded to the Lenox, Alabama,
pit intending to load their trucks for work on Saturday,
November 16, 1991, but when they arrived, they learned that
they had been discharged.
[9] The ALJ observed that while reports by co-workers of any
disruption caused by Killcrease's complaints were variable, R.D.
and O. at 21, Respondent took no action to correct his purported
behavior. The ALJ expressly credited shop employee Iria Stewart.
Id. at 19-20 (carryover par.). With regard to
Killcrease's behavior,
Stewart testified that Robert did not cause
trouble in the shop, that on about five
occasions Robert came into the shop "loud and
boisterous," usually upset over a driving
incident on the road or his truck. . . . He
further testified that Robert used curse
words on occasion, but that he had heard
everyone curse at times.
Id. at 21 (fifth par.).
