Congress passed the Surface Transportation Assistance Act (the Act) in
December 1982 and it was signed by the President and became effective on January 6, 1983.
(Pub.L. 97-424, Title IV, 49 U.S.C. 2301, et seq.) Among other things, the Act provides for
grants to the states for the development or implementation of programs for the enforcement of
Federal safety standards for commercial motor vehicles and compatible state standards. The Act
protects all employees from discharge, discipline, or discrimination for filing a complaint about
commercial motor vehicle safety, testifying in a proceeding on such safety, or refusing to operate
a commercial motor vehicle when operation would violate a Federal safety rule or when the
employee reasonably believes it would result in serious injury to himself or others. (Pub. L.97-424, Title IV, 49 U.S.C. 2301, et seq.) The Secretary of Labor (Secretary) is charged with
receiving and investigating complaints of violations of this employee protection or
"whistleblower" provision. Either the complainant or the employer is entitled to
request a hearing on the record. The Secretary is directed to issue a final order within 120 days
of the completion of the hearing, and may, if a violation is found, order reinstatement, back pay,
compensatory damages, costs, expenses, and attorneys fees. (49 U.S.C. 2305)
Mr. Richard Nix filed the first complaint under section 2305 on July 8,
1983, alleging he had been fired by NEHI-RC Bottling Company, Inc. of Greenville, South
Carolina (NEHI-RC), in February 1983 for filing a complaint with the South Carolina
Department of Labor complaining that the trucks he drove were unsafe. An investigation by the
Occupational Safety and Health Administration (OSHA),, which the Secretary had delegated
responsibility for investigation of section 2305 complaints, found that NEHI-RC fired Mr. Nix in
retaliation for filing the safety complaint and ordered NEHI-RC to pay Mr. Nix back pay. At the
request of NEHI-RC, a hearing was held before an Administrative Law Judge (ALJ) in
Greenville, S.C., on January 31, 1984. The ALJ's Recommended Decision and Order,
transmitted to me on March 28, 1984 recommended dismissal of the complaint because ALJ
found NEHI-RC was not motivated by Mr. Nix' safety complaint when it fired him because it
[Page 2]
made the decision to do so before it had knowledge he had filed such a complaint. My review of
the entire record, including some testimony not discussed or considered, by ALJ, leads me to the
conclusion that NEHI-RC was motivated, in substantial part, by Mr. Nix' protected activity and
that, but for his safety complaint, he would not have been fired.
FACTS
Mr. Richard Nix was hired by NEHI-RC as an over-the-road truck
driver in February 1982. Mr. L.C. Nicholson, President and General Manager, interviewed Mr.
Nix for the job, asking for a list of Mr. Nix' previous employers. Mr. Nix listed all but one for
which he only worked for a short time; he did include an employer which had fired him.
During the time he worked for NEHI-RC, Mr. Nix drove two
trucks--one a single rear axle gas powered truck, and the other a double axle, or tandem, diesel
powered tractor. Mr. Nix thought there were safety related problems with each truck which he
raised a number of times with various members of NEHI-RC management. He thought the gas
powered truck was overloaded because of the way it drove, and that the left front tire was badly
worn. Mr. Nix told Mr. Ed Reeves, the production superintendent, about the overloading and
Mr. Reeves told him to use Route 29 rather than Interstate 85 because the weight limits were
different on Route 29. Mr. Nix also thought there was a problem with the steering on the diesel
truck because it pulled and wandered when it hit a bump. He told Mr. Reeves; Mr. Ray Cash, the
sales manager; and Mr. Garcie Cash, the mechanic, about the steering problem a number of
times, but they said there was nothing wrong with it. Mr. Ray Cash got an employee of
International Harvester, the manufacturer of the truck, to check the steering and he found
nothing wrong with it.
In September 1982, Mr. Nix took the diesel truck to an outside
mechanic in Spartanburg, S.C., while on a run to Shelby, N.C., to have the brakes adjusted.
Although the company rule was to have all work done by the mechanic under contract Mr.
Garcie Cash, Mr. Nix thought the brakes were not effective in emergency situations and should
be adjusted right away. He could have called the plant and waited for the mechanic to come to
Spartanburg. The outside mechanic who adjusted the brakes also noted a problem with the
steering after test driving the truck. When Mr. Nix submitted the $16 bill to Mr. Nicholson, he
reacted angrily because Mr. Nix had not followed company rules.
Mr. Nix did not regularly fill out his daily trip logs and was
reminded several times over the course of the year to do so by Mr. Wayne Mardis, the office
manager. Several times Mr. Mardis had to reconstruct the trips Mr. Nix had made to bring the
logs up to date. In January 1983, Mr. Mardis told Mr. Nicholson that Mr. Nix had not turned in
the logs and Mr. Nicholson said he "would have to do something, get rid of him (Nix) or
something." Mr. Nicholson also mentioned to Mr. Ray Cash in January 1983 to start
looking for a driver because Mr. Nicholson wasn't happy with Mr. Nix' performance. Mr. Nix
did eventually turn in the logs but they were late.
[Page 3]
During the year he worked for NEHI-RC, Mr. Richard Nix was off work
several times for personal reasons and due to an injury on the job, a total of ten weeks between
June 1982 and February 1983. Each time his brother, Mr. Robert Nix, substituted for him. Mr.
Robert Nix never filled out an employment application, and was never asked about his work or
driving history. There was conflicting testimony as to whether he was told when he first
substituted for Mr. Richard Nix to fill out daily logs. But there was no dispute that he was never
asked about it again until after Mr. Richard Nix was fired. Mr. Robert Nix replaced Mr. Richard
Nix after he was fired and was not told until ten days thereafter to fill out daily logs and to
reconstruct the logs for trips made as a substitute for Mr. Richard Nix.
On December 29, 1982, Mr. Richard Nix filed a complaint with the
South Carolina Department of Labor, Division of Occupational Safety and Health, alleging the
safety problems with NEHI-RC trucks discussed above. Mr. Nicholson received a letter on
February 16, 1983, from the South Carolina Department of Labor notifying him that a complaint
had been made about the two trucks driven by Mr. Nix. Mr. Nicholson fired Mr. Nix that
afternoon, telling him it was because Mr. Nix failed to fill out his daily logs and he failed to list
Watkins motor Lines as a previous employer on his application.
Several months after he was fired, Mr. Richard Nix sought
employment with Southwest Express. Mr. Thomas Hudson, general manager of Southwest
Express, called Mr. Nicholson, whom Mr. Richard Nix said was his last employer, to find out
why Mr. Richard Nix was no longer working there. Mr. Hudson asked Mr. Nicholson why Mr.
Nix wasn't employed at NEHI-RC. At first, Mr. Nicholson said Mr. Richard Nix had a history of
getting hurt. Then, after saying he was reluctant to talk about it, Mr. Nicholson said one reason
was that Mr. Richard Nix had called the Department of Transportation. Mr. Hudson refused to
hire Mr. Richard Nix for that reason. At the hearing, Mr. Nicholson admitted making this
statement to Mr. Hudson and that he didn't say anything to Mr. Hudson about Mr. Richard Nix'
failure to keep logs.
DISCUSSION
The ALJ found on the facts that Mr. Richard Nix had not proven a
violation of the Act. Therefore, he only mentioned but did not consider several preliminary
questions about the applicability of the Act raised by the parties. NEHI-RC asserted that Mr.
Richard Nix is not covered by the Act because he filed his safety complaint with the South
Carolina Department of Labor in December 1982 while the Act did not go into effect until
January 6, 1983. NEHI-RC also claimed that Mr. Richard Nix' complaint of December 1982 was
not a "complaint' within the meaning of 49 U.S.C. 2305 because it did not mention any
commercial motor vehicle safety standard and because it was filed with a state agency while the
statute is limited to complaints alleging violations of Federal standards.
NEHI-RC also argued that the Federal Motor Carrier Safety regulations,
which would apply to some if not all of the defects raised by Mr. Richard Nix, do not apply to
private motor carriers, were not in effect when he filed his safety complaint, and should not be
[Page 4]
taken notice of because no such motion was made by government counsel. I reject these
assertions. 49 CPR 390.33 states explicitly that the regulations apply to private carriers; the
authority and publication date for the regulations are set forth clearly in the index to each Part
(390-399); a court can always take notice of existing law, whether in statutes or regulations; and
nothing in the Federal Rules of Evidence requires a motion before it can do so.
NEHI-RC fired Mr. Richard Nix in February 1983 after the Act went
into effect. It is this act of alleged retaliation from which a complainant is protected; the date on
which the protected activity of filing a safety complaint occurred does not determine applicability
of the Act. The statute says "No person shalldischarge . . . any
employee . . . because such employee hasfiled any complaint . . . ."
(Emphasis added) The act of discharge is prohibited on and after the effective date of the Act
("shall discharge") if the motivation is because the employee "has filed" a
complaint in the past. Nowhere does the Act stipulate that the safety complaint, to be protected,
must have been filed after the Act's effective date. In a closely analogous case under Title VII of the
Civil Rights Act of 1964, the Court of Appeals for the Ninth Circuit held that an employer violated
section 42 USC 2000e-3(a), the nonretaliation provision, when it retaliated against an employee after
the Title VII became applicable to it for his filing a charge with Equal Employment Opportunity
Commission (EEOC) prior to that date. Abramson v. University of Hawaii, 594
F.2d 202 (9th Cir. 1979). The court distinguished Winsey v. Pace College, 394
F. Supp. 1324 14 (S.D.N.Y. 1975). cited by NEHI-RC here, because that case involved the
"opposition" clause of 42 USC 2000-3(a), while Abramson involved the
"participation' clause. The "opposition' clause. of Title VII protects employees when
they "oppose any practice made an unlawful employment practice" by Title VII. In
Winsey, the employee expressed opposition to a practice which was not, at the time it
allegedly took place, a violation of Title VII because the Act did not yet apply to colleges and
universities. But the court said in Abramson "A lack of merit springing from the fact
that the discrimination occurred prior to the effective date of Title VII should not insulate retaliatory
acts subsequent to that date. The statute is directed against retaliation for using the processes of
EEOC; it does not sanction retaliation against those whose use is unwarranted." 594 F.2d at
211. The employee protection provision of the Surface Transportation Assistance Act parallels the
"participation" clause of Title VII's employee protection section, not the
"opposition" clause. It therefore protects employees from reprisals taking place after
January 6, 1983, regardless of when the employee conduct which motivated the employer occurred.
Similarly, I reject NEHI-RC's argument that a complaint must explicitly
mention a commercial motor vehicle safety standard to be protected. As long as the complaint raises
safety concerns? the layman who usually will be filing it cannot be expected to cite standards or rules
like a trained lawyer. The statute requires only that the complaint "relate' to a violation of a
commercial motor vehicle safety standard. Finally, the plain language of section 2305(a) protects
all complaints, whenever filed relating to any commercial motor vehicle safety standard. There is
no basis in either the Act or its legislative history to read the limitation of section 2305(b) (refusing
to operate a vehicle when doing so would violate a Federal safety standard) into subsection
(a).
1NEHI-RC suggested, in a pleading filed
with ALJ, that the Government has the burden of proving both that retaliation was .a motivating
factor in the decision to fire Mr. Richard Nix and that but for his protected activity he would not
have been fired, citing OSHA regulations on cases under section 11(c) of OSHA, the employee
protection provision. As I noted abovet 1 will apply the Burdine-Transportation
Management model to whistleblower; cases; the law under section 11(c) of OSHA is in
harmony with these cases. See Marshall v. Commonwealth Aquarium, 469
F.Supp. 690 (D. Mass. 1979), aff'd, 611 F.2d 1 (1st Cir. 1979).