Case No. 84-STA-1

In the Matter of

RICHARD NIX

    v.

NEHI-RC BOTTLING COMPANY, INC.

    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

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.

    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.

    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.

    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

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 shall discharge . . . any employee . . . because such employee has filed 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).

    Turning to the facts in this case, I will review cases arising under the employee protection provision of the Surface Transportation Assistance Act in accordance with the same prescription for allocating burdens of proof and burdens of production or going forward with the evidence as I have applied to analogous employee protection laws under 29 CFR Part 24. See, e.g. 42 U.S.Ce 5851 (Energy Reorganization Act) and my decision in Dean Dartey v. Zack Company of Chicago, 82-ERA-2, April 25, 1983; Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); and NLRB v. Transportation Management Corp., 103 S. Ct 2469 (1983)¹ Under the body of law developed in the cases noted above, the Government here has clearly made out a prima facie case that Mr. Richard Nix was fired in retaliation for his safety complaint: Mr. Richard Nix engaged in a protected activity when he filed the complaint with the South Carolina Department of Labor (see discussion above); Mr. Nicholson had knowledge that Mr. Richard Nix filed the complaint, admitting at the hearing that he had a "pretty good idea" that Mr. Richard Nix had filed the complaint referred to in the letter Mr. Nicholson received from the South Carolina Department of Labor on February 16, 1983; and Mr. Richard Nix was fired the same day Mr. Nicholson received the letter. Cohen v. Fred Meyer, Inc., 686 F.2d 793 (9th Cir. 1982); Jim Causley Pontiac v. NLRB, 620 F.2d 122 (6th Cir. 1980) (". . . the proximity in time between recent protected activity and measures taken against the employee . . . support the inference (of retaliation)." 620 F.2d at 125.) NEHI-RC has articulated legitimate business reasons for firing Mr. Nix--he failed to fill out daily logs on a regular basis and he did not list one of his previous employers on his application.

    In addition to these two reasons given when Mr. Richard Nix was fired, another has been suggested but not pursued during the litigation of the case, that Mr. Richard Nix was a chronic complainer. Other than his repeated complaints about the same perceived safety defects, the only complaints Mr. Richard Nix made were that he was not getting full-time work when he was led to believe he would be working full-time, and that he was being assigned to stock supermarket shelves when he thought he was hired to be a driver. The circumstances of these incidents were not developed at the hearing but it doesn't appear that they would constitute legitimate reasons for discharge.

    There are many inconsistences and unanswered questions about NEHI-RC's proffered reasons which call them into question. Mr. Richard Nix was told repeatedly to fill out the logs, but he was never warned that disciplinary action would result if he failed to do so. Mr. Robert Nix never filled out logs when he substituted for Mr. Richard Nix and was not told to do so until ten days after he had replaced Mr. Richard Nix. At that point, he was told to reconstruct logs for all the days he had worked as a substitute. Although NEHI-RC had to remind Mr. Richard Nix repeatedly to fill out his logs, and Mr. Wayne Mardis had to spend time helping Mr. Richard Nix reconstruct logs for past trips, they relied on Mr. Richard Nix who had been unreliable in this regard to get his brother Mr. Robert Nix to fill out logs when he substituted for Mr. Richard Nix. If Nicholson had irrevocably made up his mind to fire Mr. Richard Nix when Mr. Nicholson got back from Florida in February 1983, his actions on February 16 are inconsistent with such a decision. He permitted Mr. Richard Nix to be sent out on two trips on February 16, rather than giving instructions that Mr. Richard Nix should report to him as soon as he arrived at work. Mr. Nicholson only called Mr,

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).