Case No. 84-STA-13

Guy and Elaine Hollis,
Harold Lanpher and
Johnnie Reagan,
   Complainants,

   v.

Double DD Truck Lines, Inc.,
   Respondent

    The complaints of each of the four complainants in this case, which were all tried together, arise under section 405 of the Surface Transportation Assistance Act of 1982 (the Act), 49 U.S.C. 2305. Guy and Elaine Hollis, who are husband and wife, allege they were discharged by respondent Double DD Truck Lines, Inc. (Double DD) of Aurora, Oregon in violation of section 405(b) of the Act, which prohibits discrimination against employees for refusing to drive a truck when doing so would violate any Federal commercial motor vehicle safet-Y or health standard or when the employee reasonably believes the truck is unsafe. Complainants Harold Lanpher and Johnnie Reagan each claim that they were discharged in violation of both sections 405(a) and 405(b) of the Act. Section 405(a) prohibits discrimination against employees for filing a complaint about the safety of a truck.

    The ALJ held that Elaine Hollis was not an employee of Double DD and therefore was not protected by the Act. He also held that Double DD did not discharge Guy Hollis, apparently (although not explicitly) holding that Guy Hollis voluntarily resigned. With respect to both Mr. and Mrs. Hollis, the ALJ held further that their claim failed to meet two elements of section 405(b), in that they did not refuse to drive a truck because they thought it was unsafe and the truck was repaired.

    The ALJ rejected Mr. Reagan's complaint because he concluded that Mr. Reagan resigned his job and was not discharged. The ALJ rejected Mr. Lanpher's complaint under section 405(a) because he never filed a complaint about the safety of any of Double DD's trucks. The ALJ upheld Mr. Lanpher's complaint under section 405(b), however, because Mr. Lanpher refused to drive a truck which Mr. Reagan, Mr. Lanpher's stepson, had told Double DD was unsafe, although Mr. Lanpher did not give that as his reason for refusing to drive. The

unsafe condition which Mr. Lanpher thus indirectly communicated to Double DD was not repaired.

    The evidence in the record is quite contradictory on whether Elaine Hollis was an employee of Double DD at all. She testified that she was hired to drive with her husband Guy Hollis and was offered a "split" of 25 cents a mile, 17 cents for Mr. Hollis and 8 cents for her. Carlos Diede, President of Double DD, denied entering into such an agreement, testifying that Mrs. Hollis was allowed to ride with Mr. Hollis to keep him company. On her employment application Mrs. Hollis did not list what job she applied for, wrote "none" in rate of pay expected, and listed no experience driving trucks. Her medical examiner's certificate was not signed by the examining physician and she signed her own road test as the examiner. Mrs. Hollis never received any pay in the five months she "worked" for Double DD and never complained or asked for it. On the other hand, she regularly mailed in driver's logs to Double DD which showed that she did a significant amount of driving, and gave uncontradicted testimony that she was instructed by Mrs. Diede, the Secretary of Double DD, to list herself as driver, not co-driver, on her own logs. Thus, the question whether Mrs. Hollis was an employee of Double DD is problematical but, in view of my agreement with the ALJ on the discharge question, it is moot.¹

    On their last trip for Double DD about December 7 or 8, 1983 while having the clutch repaired, the Hollises were told by the repair men that there were cracks in the frame cross members and a spring was broken on tractor number 130. The Hollises called Mr. Diede who told them to bring the truck back to Double DD and he would have it repaired. When they arrived on Dec. 14, 1983, Mr. Diede said he would have the truck repaired and told the Hollises to take their belongings out of the cab. Mr. Diede testified Guy Hollis asked for a few days off to move and Mr. Diede agreed. Mrs. Hollis interpreted the direction to remove their belongings as a discharge, but when Mr. Diede next saw Mr. Hollis on December 27, 1983 he said Mr. Hollis was still driving for Double DD. For each day from December 14 to December 20, 1983, Mr. Hollis noted on" his log "Not fired, waiting on load". On December 27, 1983 when Mr. Diede asked Mr. Hollis why he hadn't come back Mr. Hollis said only "I got something better going than this". At that point, Mr. Diede asked Mr. Hollis for the credit card for truck number 130. Mr. Hollis thus apparently resigned voluntarily, a resignation which, since they only worked as a team, also applied to Mrs. Hollis. From Mr. Diede's perspective, the resignation had nothing to do with the safety of number 130 because Mr. Hollis did not raise it on December 27, and Mr. Diede had not previously refused to repair it. The complaints of Guy and Elaine Hollis are therefore dismissed.

    Mr. Reagan then drove home in his car with Harold Lanpher, his stepfather, who had followed him to the rest stop and who was aware of all the events involving truck number 140. Mr. Reagan called Double DD and spoke to Mrs. Diede. He told her about the inspection; there was conflicting testimony as to whether Mr. Reagan also told Mrs. Diede he quit. There was no dispute that later that day, Dec. 27, 1983, Mr. Reagan left the registration book and fuel card for truck number 140 in the Double DO office and he never got another driving assignment from Double DD² .³

    There was also no dispute that Mr. Diede later moved the truck and trailer without repairing the suspension or replacing the worn tire. Mr. Diede simply disagreed with the state inspector's conclusion that there was a defect in the suspension. To move the truck without making the repair or otherwise resolving the Out of Service Notice would seem to be a clear violation of the Federal Motor Carrier Safety Regulations, 49 CFR 396.9(c)(2) (1981).⁴

    There were-several conflicts in the testimony about whether Mr. Reagan said he quit (Mrs. Diede said he did, he denied it), and how Double DD reacted (Mr. Diede said he gave Mr. Reagan a second chance after being told he quit, but also said-that after the inspection "that was it"). Returning the registration book and fuel card to Double DD, however, were acts which could reasonably be interpreted as resignation. The ALJ concluded that Mr. Reagan quit and therefore there could be no violation of section 2305(b).⁵ All the events surrounding Mr. Reagan's resignation, however, lead me to conclude that Mr. Reagan was constructively discharged. A constructive discharge occurs where "working conditions would have been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Held v. Gulf Oil Co., 684 F.2d 427,432 (6th Cir. 1982); NLRB v. Haberman Construction Co., 641 F.2d 351 (5th Cir. 1981); Cartwright Hardware Co. v. NLRB, 600 F.2d 268 (10th Cir. 1979). For example, the National Labor Relations Board has held that assigning an employee to outdoor work in very cold weather constitutes a constructive discharge.

Seven Up Bottling Co. of Bridgetown, N.J., Inc. and Teamsters Local 676, 235 NLRB 93(1978), 1978 CCH NLRB 19,261. Similarily the Board has held that assigning a truck driver fewer loads, according him less seniority and assigning him older,,-less road-worthy trucks amounts to a constructive discharge. Interstate Equipment Co. and Teamsters Local 135, 172 NLRB 145(1968), 1968-2 CCH NLRB 20,084. Furthermore, it is not necessary to show that the employer intended to force a resignation, only that he intended the employee to work in the intolerable conditions. Junior v. Texaco, Inc., 688 F.2d 377(5th Cir. 1982); Bourque v. Powell Electric Mfg. Co., 617 F.2d 61 (5th Cir. 1980).

    Here, although Mr. Reagan sought correction of what he thought was an unsafe condition several times, Mr. Diede continued to ask him to drive truck number 140. When Mr. Reagan called from Arizona questioning the safety of the suspension, Mr. Diede told him to drive it all the way back to Oregon to be repaired at the Double DD yard. Although Mr. Reagan had been told by mechanics in Arizona and Oregon that the suspension was unsafe, Mr. Diede refused to repair it, simply telling Mr. Reagan he didn't know anything about torsion bar suspensions and the axle movement was not abnormal. There was no evidence that Mr. Diede ever had it inspected by a mechanic of his own choice. Oregon state inspectors found the defect in the suspension serious enough to place the truck out of service, demonstrating the reasonableness of Mr. Reagan's concerns about the truck's safety. Mr. Diede's blatant disregard for the state inspector's finding (which was technically punishable by criminal and civil penalties) corroborated Mr. Reagan's testimony that Mr. Diede insisted that truck-number 140 could and should be driven by Mr. Reagan regardless of the possible safety hazard. (Mr. Diede was asked by his own counsel: "Q. So you were breaking the law when you moved that vehicle?

A. No, I didn't figure so, because I know trucks.

Q. Okay.

A. It's my vehicle, and I know equipment. I didn't have

   On December 14, 1983 Harold Lanpher, a driver for Double DD, heard Mr. Diede and Guy Hollis talking about mechanical problems with truck number 130 (see discussion of the Hollises' Complaint above). Later that day Mr. Lanpher and another driver were assigned to truck number 130. After driving it a short distance to pick up several loads, Mr. Lanpher became concerned about the safety of the truck. He spoke to Mr. Diede that night before leaving in it on a trip to Fort Worth, describing his concern about the safety of the truck. At that point, however, and until December 27, 1983, Mr. Lanpher was still considered an employee by Mr. Diede because on December 27 Mr.Diede asked Mr. Lanpher to drive truck number 140 with Johnnie Reagan.⁶ Mr. Lanpher simply refused saying, as he put it at the hearing., "I told him I had other things I was going to do". He made no statement about the condition of truck number 140, although his stepson Mr. Reagan had kept him informed about the problems with the truck, and he knew that the truck was going to be inspected that day. He never got another driving assignment from Double DD.

    By refusing a driving assignment, Mr. Lanpher committed an act tantamount to resignation, and one which Mr. Diede was entitled to consider resignation. Mr. Lanpher also never thereafter, by his own admission, sought assignments from Double DD. Having not been directly involved in the history of truck number 140, as Mr. Reagan had, nor ever having sought -lo have it repaired, neither the elements of constructive discharge nor a violation of section 2305(b) is present in his case. I reject the conclusions of the ALJ that Mr. Lanpher was discharged somehow in a derivative manner because of the actions of Mr. Reagan in seeking repair of the truck and setting up the, inspection as illogical and not supported by the evidence.

    Therefore, the complaints of Guy Hollis, Elaine Hollis and Harold Lanpher are dismissed. This matter is REMANDED to the Office of Administrative Law Judges to calculate the back pay with interest, benefits and compensatory damages due to Johnnie Reagan. Double DD Truck Lines, Inc. is ORDERED to extend an offer of reinstatement to Mr.

¹The definition of "employee" in the Act, ("a driver of a commercial motor vehicle..... who is employed by a commercial motor carrier and who in the course of his employment directly affects commercial motor vehicle safety", 49 U.S.C 2301(2)(A)), does not clarify this issue. Since the question is moot, I need not now consider whether definitions in other statutes, such as the broad definition in the Fair Labor Standards Act ("to suffer or permit to work") can be applied here consistent with the legislative purpose of this statute.

²[Editor's note: the slip op. did not have a footnote 2.]

³There were several other conflicts in the testimony which were not resolved by the ALJ. Mr. Reagan and Mr. Diede disa greed as to whether Mr. Diede tried several times to get Mr. Reagan to drive truck number 140 after the inspection. Mr. Reagan claims he made several calls seeking driving assignments; Mr. and Mrs. Diede and several office personnel of Double DD denied ever receiving such calls. Mrs. Diede said Mr. Reagan came to the office to turn in his registration book and fuel card; Mr. Lanpher testified Mr. Diede came to their house to get these items. If only the testimony for Double DD is credited, it is consistent with a resignation and constructive termination as discussed in the text. If only Mr. Reagan's testimony is credited, then he did not quit, and Double DO's failure to assign him work amounts to termination sometime after the inspection. On that view of the evidence, Mr. Reagan has made out a prima facie case of discrimination in violation of both sections 2305(a) and (b), and Double DD has not proferred any legitimate, nondiscriminatory reason for the discharge.

⁴The FMCS regulations have been adopted by the State of Oregon. Oregon Administrative Rules, Section 860-65-010.

⁵The ALJ also held that section 2305(a) did not apply because Mr. Reagan did not file his complaint until after his resignation, apparently meaning his complaint with the Department of Labor. But the protected activity would be Mr. Reagan's complaint to Mr. Hagen of DOT. It is clear, however, that Mr. Diede had no knowledge of that complaint until after Mr. Reagan resigned.

⁶Several witnesses variously referred to the events on the day truck number 140 was inspected as having occurred on December 28 and December 27. The record of the inspection, Driver Equipment Compliance Check, shows that it took place on the 27th.