DATE: July 19, 1994
CASE NO. 93-STA-00044
IN THE MATTER OF
LAURENT PAQUIN,
COMPLAINANT,
v.
J.B. HUNT TRANSPORT, INC.,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER
In a Recommended Decision and Order (R.D. and O.) issued on
April 6, 1994, the Administrative Law Judge (ALJ) recommended
dismissal of this complaint brought under section 405 of the
Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C.
app. § 2305 (1988). Complainant Paquin filed a brief before
me. In reaching this decision, I have also considered the entire
record before the ALJ, including the parties' post-hearing
briefs.
The ALJ's summary of the evidence (findings of fact), R.D.
and O. at 2-5, are supported by substantial evidence, therefore
are conclusive, and I adopt them. See 29 C.F.R. §
1978.109(c)(3) (1993). His credibility findings likewise are
supported by the record evidence and I adopt them. Although I
agree with the outcome of the ALJ's decision, I write to clarify
the elements of a prima facie case and the burdens of production
and proof under the STAA. A brief recitation of the facts will
focus the discussion.
I. Facts
As a driver for Respondent J.B. Hunt Transport, Inc. (Hunt),
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Paquin was transporting a load of freight to Philadelphia,
Pennsylvania on December 16, 1992. T. 75. That evening he left
a voice mail message at Hunt's East Brunswick, New Jersey,
terminal stating that Hunt owed him $40 pay for work performed
earlier. T. 77-78.
After unloading the truck at Philadelphia, Paquin drove the
truck a short distance to a New Jersey rest stop and telephoned
the East Brunswick dispatcher to inform him that the truck was
empty. T. 80-81. The dispatcher informed terminal manager
Michael Scialpi that Paquin refused to pick up a new load in
Philadelphia until the pay issue was resolved. T. 147.
Paquin spoke with Scialpi about the pay. T. 82. When
Scialpi said that he would have to discuss the issue with the
dispatcher, Paquin replied, "okay, I am not going anywhere
anyways." T. 82. Taking Paquin's statement as a refusal to
drive, Scialpi responded angrily and asked Paquin's location.
Id. Rather than tell his location, Paquin hung up the
telephone. Id. In later testimony, Paquin stated that as
he was hanging up the telephone, he said, "I am out of hours
anyway," but conceded that he did not know whether Scialpi heard
him say it. T. 95-96, 107.
According to Scialpi, Paquin did not say that he was out of
hours or too fatigued to drive. T. 27, 28, 137-139, 157-158.
Scialpi testified that Paquin's sole complaint concerned pay, and
that he refused to move the truck until the pay dispute was
resolved. T. 27.
Paquin next telephoned Hunt's headquarters and informed a
secretary about the $40 pay error and repeated that he was not
going anywhere with the truck. T. 82. After speaking with
Scialpi, the secretary telephoned Paquin, told him that he would
be paid the $40 and directed him to bring the truck to the East
Brunswick terminal because the managers wanted to talk with him.
T. 83.
The next day, Scialpi informed Paquin that he could not
refuse to drive unless the company was telling him to do
something illegal or immoral. T. 85. Paquin told Scialpi that
he was "more than willing to go back out and continue driving the
truck." Id. When Scialpi asked Paquin whether he would
act the same way if a similar situation arose in the future,
Paquin said that he would refuse to drive again in the same
circumstances. T. 18-19. Scialpi gestured for Paquin to leave
the office and told him to take his personal belongings out of
the truck, which Paquin understood to mean that he was fired. T.
86-88.
Paquin telephoned the secretary at headquarters, who told
him to wait until the northeast regional manager arrived. T. 88.
In Paquin's presence, Scialpi explained to the regional manager
that Paquin had refused a top priority load. T. 89. Paquin
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believed that Scialpi was lying about the existence of such a
load and that he would be "railroaded no matter what [he] said,"
so he gave no explanation to the regional manager for his refusal
to drive. T. 89-90.
II. Analysis
Section 405(b) of the STAA prohibits the discharge of
employees for refusing to drive in either of two circumstances.
An employee may not be discharged 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. . ." ["when
clause"]. 49 U.S.C. app. § 2305(b). [1] Discharge also is
prohibited when an employee refuses to operate a vehicle
"because of the employee's reasonable apprehension of
serious injury to himself or the public due to the unsafe
condition of [the] equipment" ["because clause"]. Id.
The second ground for refusal further requires that the unsafe
condition must be such that a reasonable person, under the
circumstances, would perceive a bona fide hazard, and that the
employee must have sought from his employer, and have been unable
to obtain, correction of the unsafe condition. Id.
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. Ass't Secretary and Waldrep v.
Performance Transport, Inc., Case No. 93-STA-23, Dec. and
Ord., Apr. 6, 1994, slip op. at 7, and cases there cited.
Refusing to drive when the contemplated run would cause the
driver to violate the hours of service regulation, 49 C.F.R.
§ 395.3, [2] is a protected activity under the "when
clause." Trans Fleet Enterprises, Inc. v. Boone, 987 F.2d
1000, 1004 (4th Cir. 1992). The record does not contain copies of
Paquin's driver's log [3] and therefore I am not able to determine if,
when he refused the dispatch, Paquin was out of hours under the
rule limiting a driver to 70 on-duty hours in eight days. For
purposes of this decision, I will assume that the contemplated
dispatch would have violated the 70 hour rule. Paquin's refusal
to take the dispatch was protected if Paquin informed Hunt that
he refused because of the hours of service requirement.
SeeWaldrep, slip op. at 8 (complainant's remark
to employer about no longer driving "illegally" sufficient to
establish protected refusal to drive). I will discuss below
whether Paquin so informed Hunt.
Violations of the "because clause" involve more than
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problems with the mechanical parts of a motor vehicle. Dutile
v. Tighe Trucking, Inc., Case No. 93-STA-31, Dec. and Ord.,
Nov. 29, 1993, slip op. at 6. Forcing an ill or fatigued driver
to drive may constitute a violation. Smith v. Specialized
Transportation Services, Case No. 91-STA-0022, Final Dec. and
Order, Apr. 30, 1992, slip op. at 3 and cases there cited.
Under the "because clause," it is necessary to ascertain
whether the complainant's refusal to drive because of fatigue was
reasonable under the circumstances. Accepting as true that
Paquin had more than 80 on-duty hours in the previous seven days,
it was reasonable for him to feel fatigued when he refused the
dispatch.
The "because clause" also requires that Paquin sought, and
was unable to obtain, correction of the unsafe condition, in this
case fatigue. To seek correction, Paquin would have to have
informed Hunt that he was too fatigued to drive.
The record convinces me that Paquin did not inform a
responsible Hunt employee either that he was out of hours or that
he was too tired to take the dispatch. Paquin himself testified
that he learned that he had violated the 70 hours rule only after
he filed this complaint. T. 72. As the ALJ noted, when Paquin
was asked if he told Scialpi about his fatigue or hours problem,
Paquin replied:
I had run out of patience, your Honor. I worked about
22 hours at that point with only four hours sleep . . .
And to have someone yelling at me on the phone you
might say is unacceptable. And my mind started rolling
and I didn't know whether I was coming and going for a
while. I don't know what else you want me to say.
T. 66. I find that Paquin's answer was tantamount to an
admission that he did not mention fatigue or lack of hours as the
reason for refusing to drive. Therefore I agree with the ALJ,
R.D. and O. at 7, that Paquin's contradictory testimony that he
mentioned fatigue and lack of sufficient hours was not credible.
Paquin argues that because of its computer records, Hunt had
to be aware that Paquin had no available hours when it dispatched
him to pick up the load. Complainant's Post Hearing Brief
at 1, 7. The evidence reveals, however, that the computer
records were based on the drivers' statements of the number of
hours they worked. T. 146. Since Paquin conceded that he did
not properly report his "on-duty not driving" time, T. 72, the
computer records would have reflected the same inaccuracy and
Hunt could not have determined that Paquin had exceeded the 70
hour limit. T. 142. Scialpi testified credibly that he examined
the computer record on December 17 and it did not show that
Paquin had exhausted the available hours. T. 144.
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In view of Paquin's failure to state that fatigue or the
hours regulation was the reason for refusing the dispatch, the
refusal was not protected under either the "when clause" or the
"because clause" of section 405(b). Therefore I find that Paquin
did not establish that he engaged in an activity protected by the
STAA and did not establish a prima facie case. SeeWaldrep, slip op. at 9-10 (no prima facie case where
employer was unaware of hours of service as basis for refusal to
drive).
Assuming, for the sake of argument, that Paquin established
a prima facie case of a protected refusal to drive, Respondent
Hunt had the burden of articulating a legitimate,
nondiscriminatory reason for taking the adverse action.
Stiles v. J.B. Hunt Transportation, Inc., Case No. 92-STA-
34, Sec. Dec. and Ord., Sept. 24, 1993, slip op. at 6. Hunt did
so by explaining that it discharged Paquin for refusing to move
the truck because of the $40 pay he was owed and stating that he
would refuse to drive in the future if the same circumstance
arose again. T. 157-158.
Complainant had the burden of showing by a preponderance of
the evidence that the reasons Hunt stated for discharging him
were pretextual and that the real reason was retaliation for a
protected refusal to drive. The record shows that Hunt did not
discharge Paquin immediately after his refusal of the dispatch,
but rather only after Paquin stated that he would again refuse to
drive if Hunt owed him money. I find that Paquin did not
establish that the stated reason for discharging him was
pretextual or that the real reason was a protected refusal to
drive.
Accordingly, the complaint is DISMISSED.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] I agree with the ALJ, R.D. and O. at 6, that Section 405(a)
does not apply here since Paquin did not make complaints about,
or file an action concerning, violations of motor carrier rules
or regulations.
[2] That regulation provides in relevant part that a truck
driver shall 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] When Paquin attempted to offer his log books into evidence,
the ALJ declined to receive them. T. 92-93, 162.
