DATE: January 25, 1996
CASE NO. 94-STA-54
RICKY L. BROWN
Complainant,
v.
WILSON TRUCKING CORPORATION,
Respondent
BEFORE: THE SECRETARY OF LABOR
DECISION AND REMAND ORDER
This case arises under Section 405, the employee protection provision, of the Surface
Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1988).[1]
Respondent Wilson Trucking Corporation discharged Complainant Ricky L. Brown from his
position as a truck driver when he refused to deliver freight as assigned. Brown asserts his
refusal to accept the assignment was protected under the STAA for two reasons. He
complained that the freight, which contained hazardous material, was not labeled as required
by Department of Transportation regulations. Brown also claimed that he had a reasonable,
good faith belief that off-loading the material was hazardous to himself. The Administrative
Law Judge (ALJ) held that Brown did not make the complaint about lack of proper labeling,
ALJ Recommended Decision and Order (R. D. & O.) at 14-15, and that his refusal to accept
the assignment due to concern about exposure to the hazardous material was not protected
under the STAA. R. D. & O. at 16.
Background
The facts are stated in detail in the R. D. & O. at 4-14. Complainant Ricky L. Brown
worked for Wilson Trucking for about four years from 1990 to March 30, 1994. In February
1994, Brown had difficulty pumping hazardous material from a drum he had delivered to a
customer s premises. Pumping the hazardous material out of the drum was one of the duties
of his position. R. D. & O. at 4-6; R (Respondent s Exhibit) 4.[2] A small spill of the
material occurred which caused Brown difficulty breathing and made him feel dizzy. T.
(Transcript of hearing) 387. After trying to drive to his next pick up he became dizzy again
and started driving erratically. Brown called Wilson Trucking and another employee came to
pick him up and took him to the doctor. T. 394.
On March 30, 1994, Wilson Trucking directed Brown to deliver the same drum of
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hazardous material. T. 410. There was a conflict in the record about whether Brown told
Wilson Trucking the drum was not properly labeled. See T. 411; R. D. & O. at 12
and 13. There is no dispute that Wilson Trucking discharged Brown for refusing to pump the
contents of the drum. T. 743; R 4; Respondent s Exhibit B Separation of Employment.
The ALJ found that Brown failed to establish a prima facie case on the claim
that Wilson Trucking discharged him for complaining about the absence of a label on the
drum of hazardous material. He weighed the conflicting testimony and found that Brown did
not make this complaint to Wilson Trucking.[3] The ALJ held Brown did not establish an
essential element of his claim in this part of his complaint, that he engaged in protected
activity. R. D. & O. at 15. The ALJ also recommended dismissal of the second part of
Brown s complaint, that he was discharged for refusing an assignment because he was
concerned about exposure to a toxic substance. The ALJ held that this situation falls outside
of the provisions of the STAA . . . [that is,] duties that were beyond the driving of a truck. .
. . [T]he STAA . . . is concerned [only] with the hours of the driver and the safety of the
vehicle and its contents. Id. at 16.
Discussion
The record in this case has been reviewed and it includes substantial evidence to
support the ALJ s finding that Brown did not complain to Wilson Trucking about the lack of
a label on the drum of hazardous material. His finding on that issue therefore is conclusive.
29 C.F.R. § 1978.109(c)(3). I cannot agree, however, with the ALJ s interpretation of the
scope of activities protected by the STAA. Among other things, the STAA prohibits
discrimination against 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). The ALJ interpreted the STAA quite narrowly, holding that
refusal to drive is protected only where it arises out of concern for truck safety defects, . . .
driving . . . in violation of a federal rule, [or] . . . the hours of the driver and the safety of the
vehicle and its contents. Because Brown s refusal to drive related to pumping the
hazardous chemical after the drum was removed from the truck, the ALJ held it had no
protection under the STAA. R. D. & O. at 16.
But the Secretary has held, and the courts have agreed, that the STAA protects an
employee who refuses to drive where he believes in good faith he is too ill or fatigued to
operate a truck safely. See, e.g., Yellow Freight System, Inc v. Reich, 27 F.3d 1133,
1139 (6th Cir. 1994) (upholding Secretary s finding that discipline for taking rest stops
violates STAA); Yellow Freight System, Inc. v. Reich, 8 F.3d 980, 985 (4th Cir.
1993) (same). Contrary to the interpretation of the ALJ, the Secretary has held that
violations of the reasonable apprehension clause of section 405(b) involve more than engine
defects, failed brakes, and other problems with the mechanical parts of a motor vehicle. For
example, forcing an ill or fatigued driver to drive may constitute a violation. Smith v.
Specialized Transportation Services, Case No. 91-STA-0022, Sec. Dec.,
Apr. 30, 1992, slip op. at 3, and cases cited therein. Bryant v. Bob Evans
Transportation, Case No. 94-STA-24, Sec. Dec. Apr. 10, 1995, slip op. at 8.
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In addition, Department of Transportation regulations governing Driving of Motor
Vehicles, issued by the Federal Highway Administration implementing the STAA, 49 C.F.R.
Part 392 (1993) provide, in part, that:
(n)o 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 other cause, as to make it unsafe for him to begin or continue to
operate the motor vehicle.
Brown s refusal to drive on March 30, 1994 was based on his concern that delivery of the
drum of hazardous material, a task which included pumping out the drum, could result in a
spill because Bown had not been trained in this procedure. T. 411-12. Such a spill could
have been hazardous to Brown and impaired his ability to operate the truck safely. In an
earlier attempt to deliver the same drum, a spill of the material caused Brown difficulty
breathing and made him feel sick and dizzy. T. 386-7. He had attempted to drive but the
dizziness caused swerving on the road and forced him to stop and call the terminal for
assistance. T. 388. If Brown was correct that this sequence of events was likely to recur,
causing him to drive while impaired by exposure to the hazardous material would violate
DOT regulations.
In Hornbuckle v. Yellow Freight System, Inc., Case No. 92-STA-9, Sec. Dec.
Dec. 23, 1992, slip op. at 11, for example, the Secretary held that a driver engaged in
protected activity under STAA Section 405(b) when he ceased driving for an hour and a half
in order to sleep due to fatigue, citing the same Department of Transportation regulation
quoted above. I find that Brown stated a claim under the STAA when he complained he was
fired for refusing to deliver hazardous material that could have impaired his ability to drive
safely.
However, Wilson Trucking argues that Brown could not have reasonably believed he
would suffer injury or, by implication, impairment of his ability to drive safely from
performing the hazardous material transfer. Wilson asserts Brown had performed the same
procedure numerous times before and only caused a spill on February 28, 1994 because he
failed to follow proper procedures. Brief of Wilson Trucking before ALJ at 42. Wilson
asserts that, whether or not Brown had received formal training in transfer of the hazardous
material, his extensive experience with this task made him fully qualified to perform the job.
Id. at 52. Wilson Trucking also argues that the fumes from any spill, if one should
occur, do not impair a driver s ability to drive safely but only cause temporary discomfort.
Id. at 43. In addition, Wilson Trucking claims Brown never raised lack of training
and certification on the day of the incident as a basis for refusing to accept the assignment,
id. at 50, and that he did not refuse the assignment because Wilson Trucking failed
to provide a respirator. Id. at 55. In sum, Wilson Trucking argues Brown refused
the assignment because he did not like the task of transferring hazardous material, not
because he believed his ability to drive safely would become impaired by an accidental spill.
Brown claims he did raise his lack of training before and after the February 28, 1994 incident
and that he asked for a respirator when he was given the assignment on March 30. Brown s
brief before the ALJ at 4 and 6.
Although the ALJ found that Brown expressed a legitimate concern when he refused
the assignment to deliver hazardous materials, he did not carefully analyze the record and
address the above conflicts in the testimony and exhibits on these issues. Because the STAA
regulations confer the primary role in resolving disputed issues of fact to the ALJ and require
the Secretary to defer to an ALJ s findings of fact if they are supported by substantial
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evidence on the record as a whole, I remand this case to the ALJ to make such findings and
submit a recommended decision to me on these issues.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] The STAA was amended in 1994, after the events in this this case, but before this
complaint was filed. See 49 U.S.C.A. § 31105 (West 1995). I have cited the
act as it appeared in the United States Code before the amendments because of the general
presumption against retroactive application of substantive requirements. See In The
Matter of Aconi Constructors, Inc., Case No. 90-CRA-1, Sec. Dec. Sep. 18, 1995, slip op.
at 9-10. In any event, the STAA amendments made no changes in the substantive
requirements of the employee protection provision that would cause the outcome of this
decision to be different.
[2] Brown pumped only a portion of the material out of the drum.
[3] Since the ALJ evaluated Wilson Trucking s evidence in making his determination on this
issue, it is a mischaracterization of the analysis to find that Brown did not establish a
prima facie case. See Carroll v Bechtel Power Corp., Case No. 91-ERA-
0046, Sec. Dec. Feb. 15, 1995, slip op. at 8-12. Implicit in the ALJ s finding is that Brown
failed to prove this element of his claim by a preponderance of the evidence and I agree with
this conclusion.
