DATE: April 6, 1994
CASE NO. 93-STA-23
IN THE MATTER OF
ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH,
PROSECUTING PARTY,
and
TIMOTHY WALDREP,
COMPLAINANT,
v.
PERFORMANCE TRANSPORT, INC.,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER
Before me for review is the December 23, 1993, [Recommended]
Decision and Order (R.D. and O.) of the Administrative Law Judge
(ALJ) in this case arising under Section 405, the employee
protection provision, of the Surface Transportation Assistance
Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1988). The ALJ
found that Complainant Timothy Waldrep did not establish that
Respondent Performance Transport, Inc. (Performance) violated the
STAA when it discharged him, and recommended dismissal of the
complaint.
Performance filed a brief before me in support of the R.D.
and O. The Assistant Secretary did not submit a brief. I base
this decision on Performance's brief and the entire record before
the ALJ.
[PAGE 2]
The ALJ's findings of fact, R.D. and O. at 3-7, are
supported by substantial evidence on the record taken as a whole,
and therefore are conclusive. [1] See 29 C.F.R.
§ 1978.109(c)(3). I also find a substantial basis for the
ALJ's assessment of witness credibility. I agree with the ALJ's
conclusion that Waldrep did not establish a statutory violation,
and I write to clarify the elements of a prima facie case under
the STAA and the relevant burdens of production and persuasion.
To focus the discussion, the relevant facts are set forth below.
I. Facts
Waldrep began working for Performance as a part-time truck
driver in 1991. T. 19, 293. At the time, he also worked as a
truck driver for Yellow Freight on weekends. T. 20. Performance
entered into a contract with Chicago Printed Screen (CPS) to
provide up to two round trips daily from Monday through Friday
between CPS plants in Franklin, Tennessee and Henderson,
Kentucky. JX 10. Aware that a driver would drive more than 600
miles when there were two round trips for CPS, Performance's
president, Jack Ashworth, asked Waldrep whether he could make the
two trips in one day. [2] T. 243. Waldrep, who at the time had
been a truck driver for about five years, T. 18, said he could do
the two daily round trips "with no problem."
T. 243, 325-326.
The ALJ explained the CPS route, R.D. and O. at 4-5:
Complainant began his Franklin to Henderson route by
first driving a tractor from Performance's terminal in
Nashville to Franklin. He would then pick up a loaded
trailer for CPS at Franklin and haul the trailer to
Henderson where it would be dropped for CPS and a
loaded trailer would be picked up and returned to
Franklin. If CPS only needed one delivery per day,
then Mr. Waldrep would drop the loaded trailer at
Franklin and return the tractor to Performance's
terminal at Nashville. If CPS needed two deliveries
per day, then the complainant would return the tractor
to Performance's terminal at Nashville after he had
completed the second run from Franklin to Henderson to
Franklin. Regardless of whether CPS required one or
two runs per day, the initial driving from
Performance's terminal at Nashville to Franklin and the
final route from Franklin to Nashville added
approximately 50 miles to the Franklin to Henderson
route.
The ALJ found that the actual round trip between Franklin
and Henderson was 328 miles. R.D. and O. at 4. [3] Thus, on a
day in which he made one round trip, Waldrep drove a total of 378
[PAGE 3]
(328 plus 50) miles in the tractor; on a day involving two round
trips, he drove 706 miles (328 x 2 plus 50). Performance paid
Waldrep according to the mileage in the Household Goods Carriers'
Guide: 314 miles for one trip and 628 for two trips. T. 326; RX 1.
During the time that Waldrep drove the CPS route, from
May 14 through September 13, 1991, he made two round trips daily
about half of the weekdays, and otherwise made one round trip
daily. JX 2, 4, 7; R.D. and O. at 5. On days with two round
trips, Waldrep began the run at Nashville at 2 a.m. and it took
him at least 12 hours of driving time to complete the two trips.
T. 41. If he had to wait for a load, it took 15 hours to
complete the job. T. 41-42.
Waldrep continued to drive for Yellow Freight on the
weekends while he drove the CPS route for Performance on the
weekdays. T. 47. He complained to several coworkers about being
overworked and tired, but none of the coworkers heard him make a
complaint about overwork to his managers. T. 131-132, 144, 152-
153. Waldrep consistently complained to his managers (and also
to his coworkers) that he needed more than one round trip per day
to earn enough money. T. 86, 247, 286, 289, 297-299, 332. After
one such complaint, his managers suggested that he seek
employment elsewhere if one run did not provide sufficient
compensation. T. 298.
Waldrep falsified his driver logs in several ways while he
was assigned to the CPS route. He did not account for his Yellow
Freight driving time in his Performance Transport log and he did
not account for his Performance driving time in his Yellow
Freight log. T. 28. When he drove the CPS route, Waldrep
routinely logged fewer miles driven than the truck's speedometer
revealed. T. 77-83. In addition, he sometimes forged a
coworker's signature on the bill of lading to indicate falsely
that a different driver performed a portion of the run on the
second round trip, so as to make his own driving time appear to
be lawful. T. 51-52, 109-110.
Performance did not audit the drivers' trip reports, but
instead sent them to a separate firm for computation of the
amount of state taxes owed. T. 250-251. Performance's managers
were not aware of any falsification in Waldrep's trip reports or
driver logs. T. 250, 264, 304.
On one occasion, CPS asked Performance if it could add
a round trip delivery to Evansville, Indiana on the established
Franklin - Henderson route. T. 248. When Performance asked
Waldrep about adding the Evansville trip, he said he lacked the
hours to do it. T. 249. Performance therefore declined to add
the additional Evansville run. Id.
CPS complained that some of its Monday freight deliveries
[PAGE 4]
were late. T. 254. When Performance's managers asked Waldrep
about the lateness and whether he was working for any other
company, he became angry and said he would take care of his job.
Id. Waldrep did not mention that he was still working for
Yellow Freight on weekends. T. 255.
On September 13, 1991, after making one round trip between
Franklin and Henderson, Waldrep telephoned Performance to inquire
if a second trip would be needed that day. T. 53. In the
absence of the dispatcher or any other managers, a salesman
informed Waldrep that he was to wait at Franklin during some
seven hours of unloading and loading the trailer, and then
perform another round trip. Id. Waldrep refused to make
the second trip on the ground that he would not run "illegal" any
more. T. 54. Performance took no immediate action when Waldrep
refused the second trip on September 13 and instead returned to
Performance's terminal. See R.D. and O. at 11: "nothing
in this record . . . suggest[s] that Performance treated
[Waldrep] adversely when he legitimately refused to accept a
second round trip on the Friday preceding his termination."
The following Monday, September 16, Waldrep did not arrive
at the usual time for work and telephoned late to inquire about
his dispatch. See JX 3. Waldrep asked whether there would be
more than one trip for CPS that day. Informed that there would
be only one trip, Waldrep declined to work at all that day
because he needed two runs and had paperwork to do at home.
Id.; T. 308-310.
A similar conversation occurred the next day, September 17,
when Waldrep did not arrive at the usual time. Waldrep told
Lance Sumrell that he could not "make it" on one trip daily.
T. 256. When Sumrell pressed him to state whether he would take
the one CPS run, Waldrep replied that he "was not going to run
illegally." T. 257. Asked what he meant, Waldrep said instead
that he would not take the CPS run because he had paperwork to do
at home. T. 258-259. Sumrell informed Waldrep that his services
were no longer needed. T. 259.
Performance's president sent Waldrep a written notice of
termination, citing as reasons: (1) tardiness in arriving at
Henderson on September 12, 1991 due to late arrival for dispatch;
(2) refusing the September 16, 1991 dispatch; and (3) refusing
the September 17, 1991 dispatch. JX 3; T. 60-62, 336.
II. Analysis
The STAA provides in relevant part:
No person shall discharge . . . an employee
. . . for refusing to operate a motor vehicle
when such operation constitutes a violation
of any Federal rules, regulations, standards
or orders applicable to commercial motor
[PAGE 5]
vehicle safety or health. . . .
49 U.S.C. app. § 2305(b).
In order to establish a prima facie case under the STAA, a
complainant must show that he engaged in protected activity, that
he was subjected to adverse action, and that Respondent was aware
of the protected activity when it took the adverse action.
Complainant must also present evidence sufficient to raise the
inference that the protected activity was the likely reason for
the adverse action. Auman v. Inter Coastal Trucking, Case
No. 91-STA-00032, Final Dec. and Order, July 24, 1992, slip op.
at 2; seealsoRoadway Express, Inc. v.
Brock, 830 F.2d 179, 181, n.6 (11th Cir. 1987).
Refusing to drive when the contemplated run would cause the
driver to violate the hours of service regulation is a protected
activity, Trans Fleet Enterprises, Inc. v. Boone, 987 F.2d
1000, 1004 (4th Cir. 1992), as the ALJ acknowledged. R.D. and O.
at 11. Waldrep believed that he already had driven a full day
on September 13 by making one round trip between Franklin and
Henderson. T. 55. Salesman Ken Turner told Waldrep to stand by
at Franklin for an additional six or seven hours and then drive
another Franklin - Henderson round trip. T. 53. I find that if
Waldrep had waited the expected number of hours and thereafter
made the second CPS run, he would have violated the hours of
service regulation. [4] Therefore, I find that the contemplated
second run would have violated a federal safety regulation.
In refusing the dispatch, Waldrep made a cryptic remark
about no longer driving "illegally," T. 53-54, without mentioning
that he did not have enough hours of service available. Although
Waldrep made the remark to a salesman rather than a manager, it
is uncontradicted that the managers were not available to speak
to him at the time. Despite the brevity of Waldrep's remark to
the salesman, I find that the Assistant Secretary established
that Waldrep engaged in protected activity in refusing the second
dispatch on September 13.
Waldrep's discharge clearly was adverse to him. It is by no
means clear, however, whether Performance's managers knew at the
time of the firing that Waldrep had made safety based refusals to
drive. There is no evidence that Turner informed Performance's
managers of the stated reason for Waldrep's refusal of the second
run on September 13. And although Sumrell heard Waldrep say that
he would not run illegally during their telephone conversation on
September 17, T. 258, the remark was incongruous that day because
Sumrell told Waldrep that he did not know whether there would be
a second CPS run and that he could promise only one run. T. 256.
[PAGE 6]
I find that Waldrep's remarks on September 16 and 17 about
not being able to make it financially on one run implied that he
was quite willing to make two CPS runs per day because of the
amount of money he earned. Thus, he did not refuse to drive on
those days because the contemplated trip would cause him to
violate the hours of service. As the ALJ reasoned, R.D. and O.
at 11:
[T]he evidence in this record does not convince me that
Mr. Waldrep refused dispatch on September 17, 1991
because he was concerned that the dispatch would
violate a Federal regulation or safety rule. Moreover,
the evidence does not prove that such a violation would
have occurred had the complainant accepted the
dispatch. In fact, it is obvious that Mr. Waldrep
would not have been able to complete two round trips
between Franklin and Henderson on that date since he
had not reported for work at his usual time and did not
telephone the dispatcher until approximately 9:00 a.m.
The evidence also establishes that two round trips were
not required by CPS on either September 16 or September
17. Thus, the dispatch in question did not contemplate
an obvious violation of a Federal regulation as
occurred in Trans Fleet Enterprises, Inc. v.
Boone.
I find that the Assistant Secretary did not establish that
Performance's managers were aware that Waldrep had ever refused
to drive for safety reasons, and therefore that no prima facie
case was established.
Assuming that the Assistant Secretary had established a
prima facie case, Rich Transport had the burden of proffering
legitimate reasons for discharging Waldrep. See,
e.g., Asst. Sec. and Killcrease v. S & S Sand and
Gravel, Inc., Case No. 92-STA-30, Final Dec. and Order, Feb.
5, 1993, slip op. at 7. Performance's managers did so by
testifying about Waldrep's refusal of dispatches on September 16
and 17 on the ground that he wasn't making enough money on one
CPS run per day. See JX 10. The Assistant Secretary
had the ultimate burden of establishing that Performance
discharged Waldrep for reasons prohibited by the STAA, seeStiles v. J.B. Hunt Transportation, Inc. Case No. 92-STA-
34, Dec. and Order, Sept. 24, 1993, slip op. at 7, and failed to
do so. Waldrep was not credible when he testified that he
informed his managers that making two runs per day would cause
him to violate the hours of service regulation. R.D. and O. at
10. I agree with the ALJ that the record establishes that
Performance fired Waldrep because of a late delivery and "for
failing to report for his normal dispatch" on September 16 and
17. R.D. and O. at 12. The record convinces me
[PAGE 7]
that Waldrep gave an economic, rather than a safety based, reason
for not reporting to work, and that Performance legitimately
fired him. Accordingly, the complaint is DISMISSED.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] The following typographical corrections should be made on
the R.D. and O. On page 5, second full paragraph, line 2, change
"Tr. 36" to "Tr. 41." On page 10, third full paragraph, line 6,
the listed transcript citations should read: "(Tr. 112, 115, 123,
126)."
[2] Department of Transportation regulations provide in relevant
part that a truck driver shall not 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). Further, a
driver may not drive after "[h]aving been on duty 70 hours in any
period of 8 consecutive days if the employing motor carrier
operates motor vehicles every day of the week." 49 C.F.R. §
395.3(b)(2).
[3] The ALJ calculated the actual route mileage by using the
Rand McNally Road Atlas (68th ed. 1992).
[4] Waldrep already had driven the tractor from Nashville to
Franklin to Henderson, and back to Franklin, where he waited "a
couple of hours" for CPS to unload the trailer prior to
telephoning Performance. T. 53. The additional six or seven
hours' waiting time that Turner expected to occur would count as
"on duty, not driving" time in Waldrep's log. 49 C.F.R.
§ 395.2(a)(5). Turner was asking Waldrep to wait the
additional time, complete another Franklin - Henderson - Franklin
round trip, and drive the tractor to Nashville without having
eight consecutive hours off duty. T. 53.
