Robinson v. Duff Truck Line, Inc., 86-STA-3 (Sec'y Mar. 6, 1987)

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Robinson v. Duff Truck Line, Inc., 86-STA-3 (Sec'y Mar. 6, 1987)

U.S. DEPARTMENT OF LABOR

SECRETARY OF LABOR
WASHINGTON, D.C.

DATE: March 6, 1987
CASE NO.: 86-STA-3

IN THE MATTER OF

HOSLER ROBINSON,
Complainant,

DUFF TRUCK LINE, INC.,
Respondent.

BEFORE: THE SECRETARY OF LABOR

FINAL DECISION AND ORDER

This case arises under the employee protection (whistleblower) provision of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1982), which prohibits covered employers from discriminating against employees who have engaged in certain protected activities.

This proceeding was initiated by a complaint filed by Hosler Robinson, a tractor-trailer driver, alleging that he was discriminatorily discharged by his employer, Duff Truck Line, Inc., a short haul carrier specializing in overnight deliveries, for refusing to drive because of snow and icy road conditions. Robinson also alleges that Duff refused to pay him deferred wages in a lump sum, such refusal being in retaliation either for Robinson's refusal to drive or because he filed the complaint regarding his discharge. After a hearing on Robinson's complaint, Administrative Law Judge (ALJ) Daniel Lee Stewart issued, on November 6, 1986, his Recommended Decision and Order (R.D. and 0.) in which he concluded that Robinson's alleged discharge is not covered by the STAA because his refusal to drive in winter conditions is not an activity protected by section 2305 of the STAA. In addition, the ALJ concluded that Robinson has failed to establish that Duff's refusal to pay him deferred wages in a lump sum is discriminatory. Accordingly, the ALJ recommended that Robinson's complaint be dismissed. This decision is now before me for review.

After a review of the entire record of this proceeding, including the briefs submitted to me by the parties¹ I conclude

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that I cannot accept the ALJ's recommendation that I dismiss Robinson's complaint.

Whether Robinson's refusal to drive is protected under
Section 2305(b) because operation of his vehicle would
have constituted a violation of a Federal regulation.

The record evidence relevant to the issue of whether Robinson engaged in a protected activity when he refused to drive on the night of January 31, 1985, is set forth in considerable detail in the ALJ's decision. more concisely, Robinson testified that, on January 31, 1985, he was scheduled to make his regular week-day run from Louisville, Kentucky, to Lima, Ohio, and then return to Louisville. He normally left the Louisville terminal after 8:30 p.m. and would arrive back in Louisville about 7 or 8 o'clock the following morning. The prescribed route for this trip was Interstate 71 North to Interstate 75 past Cincinnati rand on to Lima. It was customary for Robinson to drive the same tractor on this run. Because the front end of this tractor tended to rise when it pulled a loaded trailer, and because of the type of tires on it, Robinson felt that this tractor was difficult to handle in ice and snow.

According to Robinson, it rained on January 31st, and, at about 3 or 4 p.m. on that afternoon, it began to snow with the result that the roads became icy. Television stations, Robinson testified, issued weather warnings advising against driving on the highways from Louisville going north. As a result, Robinson called the Duff dispatcher and reported that he (Robinson) was not going to make his run and that he was reporting off. Duff's Louisville branch manager, Damien Abell, then spoke with Robinson. Robinson testified that he advised Abell that he would not drive because of weather conditions and that he could not get out of his driveway. It is not clear whether Robinson and Abell had one or two conversations. According to Abell, he spoke with Robinson twice around 6:00 p.m., the first time telling him that a warning letter would be issued and the next time (five minutes later) telling Robinson that, because he refused to drive, he was considered to have voluntarily quit. Robinson

protested, asserting that he was not resigning because he had only two months left before retirement. (Robinson had, at that point, been employed by Duff for thirty-two years.)

That evening, Robinson telephoned the union steward, Jerry Veltman, and informed him of his conversations) with Abell. Veltman called the highway patrols at LaGrange, Kentucky, and at Walton, Kentucky in order to check on the condition of the roads over which Robinson would have to travel. Veltman testified that he was informed that the highway between Walton and Cincinnati, Ohio, was shut down, and that Interstate 71 was almost impassable. Veltman reported this information to Robinson. Meantime, within an hour or so after his conversation with Robinson and before Robinson was scheduled to report to the terminal, Abell typed and put in the mail a letter to Robinson again advising him that his refusal to work due to bad weather conditions was considered a voluntary quit.

Robinson did not report at all for work on January 31, 1985. The next day he called the terminal to ascertain at what time he would be dispatched, and, on his next regular working day (February 4, 1985), he went to the terminal at his regular time and punched

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in. On both occasions, he was told that there was no work for him because he was considered a "voluntary quit." As a result of union negotiations with Duff, Robinson subsequently was reinstated without pay for seventeen days in order to provide him with improved retirement benefits. After a grievance hearing, the Joint Area Committee ordered Duff to pay Robinson for three of the seventeen days.

Respondent Duff offered testimony to the effect that, on January 31, 1985, all other Duff drivers made their scheduled runs without delays, including drivers who traveled on Interstate 71 through Cincinnati, and that the Duff records showed no reported accidents for the night of January 31st. According to Goff, Duff's Vice President of Industrial Relations, Duff prefers, when weather conditions are bad, that the drivers begin their run and then stop driving if the road conditions get bad. (Apparently, the basis of this policy is that the hazardous conditions might not be encountered throughout the entire trip.) Under the National Master Freight Agreement, drivers who are compelled to stop driving and secure their vehicles are entitled to impassable road pay. There have been instances, however, in which Duff has denied impassable road pay to some drivers who stopped and secured their rigs because they felt it was unsafe to drive.

The ALJ was of the view that the only provision of Section 2305 that might be applicable to Robinson's refusal to drive is the provision in paragraph (b) which prohibits adverse action 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." The ALJ found that there are only two provisions of the Department of Transportation's (DOT) Federal Motor Carrier Safety Regulations, 49 C.F.R. Parts 390-399 (1986), which deal with driving a vehicle in winter conditions: (1) section 392.14 ² which provides that, when hazardous conditions conditions, such as snow, ice, sleet, etc., are encountered, operation of the motor vehicle should be discontinued until it can safely be operated; and (2) section 395.10 ³ which permits drivers to exceed their 10-hour maximum driving time when they encounter such adverse driving conditions as snow, sleet, a highway covered with snow or ice, etc., none of which conditions were known to the dispatcher at the time the run was begun. Neither of these sections, concluded the ALJ, "prohibits the driving of a commercial vehicle in winter conditions, and the Complainant has not referred to any other regulations which would have been violated by Duff by requiring him to drive his truck or face dismissal." R.D. and O. at 10.

The Assistant Secretary contends that the ALJ erred in finding that section 392.14 is-inapplicable, and urges that this section should be interpreted as permitting drivers of .commercial motor vehicles to refuse to begin their assigned runs when they determine that hazardous weather conditions exist. Specifically, the Assistant Secretary argues that, inasmuch as section 392.14 requires a driver to stop when hazardous weather conditions become "sufficiently dangerous" and does not permit him to resume his trip 'until the vehicle can be safely operated,' logic and common sense require that the driver can refuse to begin his assigned trip if he is aware that he will encounter hazardous road conditions. Brief of the

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Assistant Secretary, January 6, 1987, at 10-14.

Nothing in this regulation precludes a driver from determining prior to the start of his trip that road conditions are 'sufficiently dangerous' and thus, logically, the regulation can be read to permit the driver to refuse to begin his trip if he is aware that the hazardous road conditions discussed in the regulation exist on the roads he must travel on his assigned trip.

Id. at 12 (emphasis in original).

Such an interpretation, according to the Assistant Secretary, is supported by the definition of adverse driving conditions in section 395.10(c) of 49 C.F.R. which limits such conditions to those which were not "apparent on the basis of information known to the person dispatching the run at the time it was begun." The Assistant Secretary argues that this language implicitly recognizes that the dispatcher has a duty to be aware of hazardous conditions and not dispatch the driver when such conditions exist. "This implication supports the Assistant Secretary's contention that 392.14 permits a driver to refuse to drive at the start of a trip when he is confronted with adverse weather and road conditions at his starting point.' Brief of the Assistant Secretary at 13.⁴

Respondent Duff argues that neither section 392.14 nor section 395.10 prohibits a motor carrier from requiring a driver to drive in winter weather conditions. Indeed, Duff asserts that, had Robinson encountered adverse conditions during his run (conditions not apparent to Duff at the time of dispatch), Duff would have been permitted, under section 395.10(a), to re-quire Robinson to drive an extra two hours to finish the run. Respondent's Brief In Support of Recommended Decision and Order of-Administrative Law Judge (Respondent's Brief), January 5, 1987, at 24-26. Moreover,, argues Duff, the Assistant Secretary's interpretation of the regulation would permit drivers to refuse to drive simply because of weather predictions. According to Duff, "[t]his result would be catastrophic to interstate commerce in that it would literally shut down the trucking industry." Respondent's Reply Brief, January 16, 1987, at 10.

The determination of whether Robinson's refusal to drive on January 31, 1985, constituted a refusal to operate a vehicle in violation of a Federal regulation is dependent on whether section 392.14 of 49 C.F.R. applies only when a driver is on the road or also applies before he begins his assigned run. If this regulation prohibits the commencement of a run when hazardous weather conditions exist, the STAA specifically protects the driver's refusal to undertake the trip.⁵

Neither party has cited, and further research has not revealed, any interpretation by DOT or any court of the DOT regulations at 49 C.F.R. §§ 392.14 and 395.10. I find that a reasonable interpretation of section 392.14 is that it applies whenever a driver encounters hazardous weather conditions whether before his dispatch from the terminal or

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when he is on the road. Clearly, the intent of this regulation is to prohibit the driving of commercial motor vehicles in adverse weather conditions unless such vehicles can be operated safely. To hold that the regulation applies only when hazardous weather conditions are encountered after dispatch from the terminal is to create the absurd situation of drivers being compelled to take their vehicles at least out of the terminal gate in order to avoid driving in "sufficiently dangerous" conditions.⁶ Section 392.14, like section 395.10, presupposes that, if unsafe driving conditions exist, the vehicle will not be operated and the run will not take place. Accordingly, I find that the ALJ erred in concluding that there is no Federal safety regulation which could have been violated by Duff.

In order to establish that his refusal to drive is protected because he would have violated section 392.14, Robinson must show that there existed, on the night of January 31, 1985, the type of weather conditions which would make it unsafe to operate the vehicle. The Assistant Secretary for OSHA contends that Robinson's reasonable and good faith belief that the weather conditions were 'sufficiently dangerous' is enough to establish that commencement of his assigned run would violate section 352.14. Brief of the Assistant Secretary at 15. Thus the Assistant Secretary would leave to the subjective judgment of the driver the determination of whether the hazardous weather conditions have become "sufficiently dangerous" so as to require that the vehicle not be operated. To impose an objective test for this determination, OSHA argued before the ALJ, would be to permit the driver to be second guessed on the basis of hindsight, with the result that drivers will take chances in order not to lose their jobs or pay. Brief for Department of Labor, August 21, 1986, at 10.

Duff argues that neither the statute nor the DOT regulation protects a driver's subjective beliefs as to the hazardousness of weather conditions, and that, in fact, driving was not dangerous on January 31st since all other Duff drivers made their scheduled runs without accidents or delays. Respondent's Reply Brief at 7-11.

I reject the position that section 392.14 is violated whenever the driver has a reasonable and good faith belief that it is unsafe to drive. Section 392.14 makes no mention of a driver's good faith belief. Rather, this section by its clear terms prohibits the operation of a vehicle when the weather conditions are in fact such that the vehicle cannot be operated safely.

Of course, a determination as to whether such conditions exist requires the exercise of subjective judgment and is ordinarily made on the basis of information available at the time, but that determination is not reserved to the driver alone.⁷ Indeed, by virtue of section 392.1(a) of 49 C.F.R., which requires the motor carrier, as well as the driver, to comply with all the safety regulations, the requirements of section 392.14 are equally applicable to the carrier and impose upon it also the duty to determine whether the vehicle can be safely operated under existing weather conditions. The effect of the Assistant Secretary's interpretation of section 392.14 would be to extend the relevant statutory language to include the refusal to drive whenever the driver

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has a reasonable and good faith belief that driving would violate a Federal requirement. This would not comport with the clear language of the. statute. Section 2305(b) protects the refusal "to operate a vehicle when such operation constitutes a violation of any Federal" requirement "applicable to commercial motor vehicle safety or health" (emphasis added). It is only that part of section 2305(b) which protects the refusal to drive because of the unsafe condition of the equipment that permits the use of a "reasonable belief" standard.

The ALJ set out the testimony and the positions of the parties but made no findings of fact. He, therefore, did not determine whether hazardous driving conditions existed when Robinson refused to drive. The record, however, contains sufficient evidence for me to make that determination. In this connection, it is appropriate to examine the record evidence as to weather conditions during the period Robinson would have been driving.

Supportive of a finding that driving conditions in the Louisville area were hazardous in the late afternoon and evening of January 31, 1985, is the direct testimony of Robinson, Veltman, and Robert Howell as to the the weather and road conditions they observed. Robinson testified that freezing rain had been falling, that it had begun to snow about 3:00 or 4:00 p.m., and that his driveway and the streets and roads around his house were covered with ice. Transcript of April 1, 1986 hearing (T.) at 63-4, 73-4. Also, the condition of his driveway was such that he could not get out. T. at 590-1. Veltman, the union steward, testified that "the roads were glazed over, there was not a lot of snow on the sides but there was some snow on the, you know, in the grassy areas and stuff like that. But it was primarily ice and like the street in front of my house was iced over pretty good." T. at 232. Robert Howell, another Duff driver, testified that "it was freezing rain and snowing and blizzard conditions." T. at 159. Abell's letter to Robinson informing him that he was considered to have voluntarily quit confirms the fact that it was snowing on the evening of January 31, 1985. CX-5.

Robinson also testified that television stations were broadcasting "weather warning -- not to get out on the highway unless it's necessary because of the weather that's coming this way and it will be hazardous driving from Louisville, well coming from the south going north", the direction which Robinson would have had to take. T. at 64. Veltman's testimony, to the effect that two Kentucky Highway patrol offices informed him that a certain section of Interstate 75 was closed and that Interstate 71 was almost impassable, also establishes that driving conditions along Robinson's assigned route were hazardous. Furthermore, there is evidence which in hindsight supports Robinson's analysis as to the weather conditions he would encounter from the beginning of his trip at 8:30 p.m. on January 31 until his return to the Louisville terminal at 7 or 8 o'clock on February 1st. As pointed out by-OSHA:

Meteorological records maintained by the U.S. Department of Commerce establishes (sic) that on January 31 by 3:00 p.m. the temperature had fallen to freezing and it had begun to snow (Ex. 9)....... The surface weather observations confirm that temperatures in Louisville on January 31 dropped from 34 at noon to 17 by midnight and

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by about 9:00 a.m. on February 1 had further dropped to 11 (Ex. 9). Snow fall was observed at every observation (there were 45) during the period from 1447 hours on January 31 to 1252 hours on February 1 (Ibid). By about noon on February 1 a total of six inches of snow had fallen in the Louisville area (Ibid).

Along Robinson's route snow began to fall in Cincinnati on January 31 at about 1553 hours and continued without letting up until past noon on February 1 with total accumulation of seven inches (Ibid). In Dayton (which Robinson was due to reach around 11:30 p.m.) (TR 68), it began snowing at 1650 hours and continued until about 1:00 p.m. on February 1 with a total accumulation of six inches (Ibid).

Brief for Department of Labor at 11-12.

There is little evidence to support Duff's contention that driving conditions were not hazardous on the night of January 31, 1985. From the hearing testimony it is clear that, when he spoke with Robinson, Abell had no knowledge as to the actual weather or road conditions. Abell admitted that he did not know what road conditions in and around 'Louisville were like. He gave inconsistent testimony as to whether it was snowing during his phone conversations with Robinson. First, Abell testified that the snow did not begin until 11:30 p.m. on January 31, 1985, T. at 368, or three hours after Robinson was to begin his run. Then, when confronted with the letter he wrote and mailed to Robinson, CX-5, with-in an hour to an hour and a half after he spoke with Robinson, Abell admitted that he had known it was snowing when Robinson refused to drive. T. at 361. Abell also admitted that he did not walk outside or conduct any investigation of road conditions, or speak to any incoming drivers, T. at 361, and that he made no determination as to whether it was safe for Robinson to run. T. at 365. It appears that Abell relied simply on Duff's system for monitoring weather conditions. This system requires each terminal to submit to the central office in Lima at 7:00 a.m. each day a "local weather pattern and road condition for the day", setting forth the predicted weather conditions for the day. This report is distributed by the central office to all the terminals so that each terminal has information as to weather conditions. (The report for January 3-11 1985, is not in this record and there is no testimony as to its contents.) When weather conditions worsen and are "extremely bad," telephone conferences as to how to move the freight are held. No such conference was held on January 31, 1985. T. at 341-2. Moreover, Abell testified that, despite the fact that during the approximately five minute interval between his conversations with Robinson, Abell spoke to the central office at Lima, he did not discuss road conditions. According to Abell, the decision that weather conditions were not hazardous was based on the fact that all other Duff terminals were operating. T. at 362. Abell's testimony, therefore, does not support Duff's position that driving conditions were not hazardous.⁸

Duff points to a report prepared by the National Climatic Data Center which indicates that at 6:46 p.m., on January 31, 1985, the depth of the snow reached one inch and that, prior to that time, there were only traces of snow. CX-9. However, low snow depth does not in itself establish that the driving conditions were not hazardous. For example, the

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report also indicates that there was fog, and the combination of fog and falling snow could have made driving hazardous.

Primarily, however, Duff relies on testimony to the effect that some 90 drivers throughout Duff's system who had been assigned runs for January 31, 1985, including drivers who ran on Interstate 71, completed their runs without accident or interruption. T. at 339, 574. See also RX-PP through DDD.⁹ This evidence, in Duff's view, establishes that driving was safe. While it could be"inferred from this evidence that hazardous driving conditions did-not exist when Robinson would have been on the road, there is no other evidence supporting such an inference. Not one of these drivers testified. There is a complete absence of any evidence as to the driving conditions encountered by these drivers, particularly the drivers taking routes which Robinson would have taken. Moreover, Abell admitted that most of the running to and from the Louisville terminal had been done in the morning almost nine hours before Robinson was to drive. T. at 366.

I have weighed the relevant evidence and have considered the parties' comments on the evidence. I reject Duff's contention that Robinson's testimony is not credible because he claimed two different reasons for refusing to drive -- that weather conditions would make it unsafe and that he could not get out of his driveway. Respondent's Brief at 8 n.6. I do not find that these reasons are incompatible. I find persuasive the testimony of those witnesses who actually observed the weather and road conditions.¹⁰ I, therefore, conclude that hazardous weather conditions existed on January 31, 1985, and that Robinson has established that he refused to drive in violation of a Federal regulation. Accordingly, I find that Robinson engaged in an activity protected by section 2305(b) of the STAA.

Whether Robinson's refusal to drive is protected
under Section 2305(b) because of a reasonable
apprehension of serious injury due to the unsafe
condition of the equipment.

I also find that Robinson's refusal to drive is protected under that part of section 2305(b) which protects an employee's refusal to drive equipment where the employee has a "reasonable apprehension of serious injury to himself or the public due to the unsafe condition of such equipment."

The ALJ found this part of section 2305(b) inapplicable "[s]ince the truck which the Complainant drove was not in an unsafe condition. . . ." R.D. and O. at 9. Both the ALJ and the Assistant Secretary apparently construe this provision as applying only to situations where the equipment to be driven has a mechanical or other type of defect. R.D. and O. at 9; Brief of Assistant Secretary at 11 n.9; see also Respondent's Past-Hearing Brief at 21; contra Brief For Department of Labor at 21. There is, however., no legislative history indicating that Congress intended that this provision apply only where there

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is some problem with the tractor to be driven or the trailer to be hauled. On the contrary, the section by section analysis of section 2305(b), prepared by the Senate Commerce Committee which reported out the legislation, noted that "it is intended to assure that employees are not forced to drive unsafe vehicles or commit unsafe acts". 128 Cong. Rec. S14018 (daily ed. December 7, 1982). This statement certainly suggests that Congress intended that this provision encompass more than just the defective conditions of the-equipment.¹¹ Thus, I construe this part of section 2305(b) to apply to conditions, which make operation of a commercial vehicle on the road a safety hazard.

Certainly, where driving is hazardous as a result of weather conditions, the equipment becomes unsafe on the road. This is particularly so here where there is evidence that the steering of Robinson's truck became more difficult on icy and snowy roads. Robinson, who always drove the same tractor on his daily run, testified that the tractor was dangerous to handle on ice and snow because of insufficient weight on the front steering axle and because of the type of tires it had. According to Robinson, this type of tractor tended to rise in the air, to slip in making turns and to wan der off the highway. As a result, the tractor became 'very dangerous" to drive on ice and snow. T. at 72-3. Confirmation of the characteristics of this equipment is found in the testimony of Robert Howell and Veltman, both of whom had driven either Robinson's tractor or the same type of tractor on wet pavement. T. at 160-161; T. at 229-30.

The record evidence establishes that the conditions for qualifying for protection under this provision of section 2305(b) have been met. First, Robinson had a reasonable apprehension of an accident or injury to himself or to the public were he to drive on the evening of January 31, 1985. Robinson observed the snow and ice and the conditions of the roads around his house. He heard the weather warnings advising against driving on the highways he would have had to take. He was familiar with the roads, having driven the Lima run five days a week for ten or eleven years, and on many occasions had driven that route in ice and snow. T. at 71. Furthermore, as indicated above, he knew the driving problems presented by his tractor and how much more dangerous the tractor became on icy and snowy roads. Robinson's refusal to drive was thus based on his personal observations of existing weather conditions, on weather reports and a traveller's advisory, on his long personal experience with the route and on his personal experience with the tractor that he was assigned to drive.

Additionally, Robinson received no information from Abell or any other Duff official as to weather conditions, which might have led Robinson to alter his assessment of the danger of driving his assigned trip. Abell's testimony reveals that he simply told Robinson that "marking off due to weather conditions is not an excused absence and we expect him to run", T. at 320, and that "we are running as a Company, we need for you to run, and if you continue to hold the position that you're not going to run due to weather conditions, we're going to take the position of a voluntary quit . . . ." T. at 323. Abell admitted that he never determined that it was safe for Robinson to run. T. at 365.

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I, therefore find, that a reasonable person, under the circumstances confronting Robinson at the time he refused to drive the equipment assigned to him, would conclude that there was a bona fide danger of an accident or injury, and that, therefore, Robinson had a "reasonable apprehension of serious injury to himself or the public due to the unsafe condition of such equipment."

I also find that Robinson met the requirement of the part of section 2305(b) which requires that the "employee must have sought from his employer, and have been unable to obtain, correction of the unsafe condition." I find that by reporting off and by advising Abell that this was due to weather conditions, T. at 63, Robinson sought from Duff correction of the unsafe condition. In this connection, I reject Duff's argument that, where an employee refuses to drive due to weather conditions, an employer cannot take corrective measures because he cannot change the weather. Respondent's Brief at 27. Obviously, the way to correct the unsafe condition of driving in hazardous weather is not to dispatch the driver and to permit the driver to report off (mark off).

Accordingly, I find that Robinson's refusal to drive because of a reasonable apprehension of injury due to the unsafe condition of the equipment is protected under section 2305(b) of the STAA.

Whether Robinson was retaliated against because
of his protected activity

Duff terms Robinson's termination a "voluntary quit", later converted to "a suspension". It is clear from the record evidence that, on January 31, 1985, Robinson's employment relationship with Duff was severed, and that this was done by Duff. There is no question, therefore, that Robinson was discharged on January 31, 1985. That Duff rehired Robinson seventeen days later and decided to treat the seventeen day interval as a suspension without pay does not alter the fact of the discharge.

Duff does not dispute that the action it took against Robinson was solely because of Robinson's refusal to drive. "The only conclusion which can be drawn from the evidence is that Respondent suspended Mr. Robinson because he refused to drive." Respondent's Brief at 20. In view of this acknowledgment, I find that Duff terminated Robinson in violation of section 2305(b) of the STAA.¹²

Whether Duff's delay in paying Robinson his deferred wages violated the STAA

The evidence of record establishes that, after Robinson retired on April 30, 1985, CX-13, Duff refused to pay him deferred wages in one lump sum. Under Duff's Deferred Wage Program, these wages were due in full within 30 days of retirement. CX-12. As a result of Duff's refusal of full payment within this period, Robinson filed suit for the amount of the deferred wages, and, on November 20, 1985, was granted summary judgment in his favor.

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When Duff still refused to pay Robinson, an Order of Garnishment was obtained and in January 1986, Robinson finally received his deferred wages. CX-10.

Robinson alleges-that Duff's refusal to pay the deferred wages was either in retaliation for his refusal to drive on January 31, 1985, or in retaliation for filing his STAA complaint on April 30, 1985. Robinson, therefore, seeks as damages the amount of attorneys fees incurred in his legal action against Duff, plus interest on his wages during the period of his wage claim.

The ALJ found that Duff did not want to pay the deferred wages in a lump sum because of its precarious financial situation, and that no other Duff employee, who retired in 1985, received a. lump sum payment of deferred wages. The ALJ then concluded that, because Duff did not treat Robinson differently from other employees, Robinson failed to establish that he was discriminated against by Duff either because of his refusal to drive or because of filing his STAA complaint. R.D. and O. at 11.

I have reviewed the record evidence and find that there is substantial evidence in the record to support the ALJ's finding that Duff was motivated by financial considerations in refusing to make the lump sum payment.¹³ I, therefore, find that Robinson has failed to prove that Duff's refusal of lump sum payment of the deferred wages was in retaliation for any of Robinson's protected activities., Accordingly, I dismiss Robinson's claim for attorneys fees and interest on deferred wages.¹⁴

Therefore, Respondent Duff Truck Line, Inc. is Ordered to pay back pay to Complainant Robinson. Complainant's back pay is to be calculated from his discharge on January 31, 1985, to the date he returned to work with Duff. The back pay shall be calculated on the basis of his average pay per day, plus interest in accordance with 29 C.F.R. § 20.58(a) (1986), and less the three (3) days already compensated for as a result of collective bargaining procedures.

SO ORDERED.

WILLIAM E. BROCK
Secretary of Labor

Washington, D.C.

[ENDNOTES]

¹Briefs were submitted on behalf of Respondent Duff and on behalf of the Assistant Secretary of the Occupational Safety and Health Administration (OSHA) of the U.S. Department of Labor, a party in interest acting as a prosecuting party during the hearing before the ALJ. Complainant Robinson, who has not been represented by counsel in this case, did not file a brief.

²Extreme caution in the operation of a motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the vehicle shall be discontinued and shall not be resumed until the vehicle can be safely operated. Whenever compliance with the foregoing provisions of this rule increases hazard to passengers, the motor vehicle may be operated to the nearest point at which the safety of passengers is assured.

49 C.F.R. § 392.14.

³(a) . . . a driver who encounters adverse driving conditions (as -defined in paragraph (c) of this section) and cannot, because of those conditions, safely complete the run within the 10-hour maximum driving time permitted by § 395.3(a) may drive and be permitted or required to drive a motor vehicle for not more than 2 additional hours in order to complete that run or to reach a place offering safety for vehicle occupants and security for the vehicle and its cargo. However, that driver may not drive or be permitted or required to drive --

(1) For more than 12 hours in the aggregate following 8 consecutive hours off duty; or

(2) After he has been on duty 15 hours following 8 consecutive hours off duty.

* * *

(c) 'Adverse driving conditions' means snow, sleet, fog, other adverse weather conditions, a highway covered with snow or ice, or unusual road and traffic conditions, none of which were apparent on the basis of information known to the person dispatching the run at the time it was begun.

49 C.F.R. § 395.10.

⁴The Assistant Secretary also argues that, since it appears that the Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C. §§ 651-678 (1986), protects the refusal of a truck driver to drive in hazardous weather conditions (snow), Marshall v. Halliburton Services, Inc., 1979 CCH OSHD, para. 23,409, it is only logical that the STAA and the DOT regulations protect such refusal. It is axiomatic that the language of the statute and its legislative history are the usual standards for determining its application. Moreover, although denying the employer's motion for summary judgment, the District Court in Halliburton recognized the 'closeness of the question' and certified the question for immediate appeal since "the subject matter of this order involves a controlling question of law as to which there is substantial ground for a difference of opinion. . .." No such appeal was taken, however, and an order of judgment was entered on July 9, 1982.

⁵Because the right to refuse to drive in violation of a federal requirement is specifically protected in section 2305(b), it is unnecessary to decide whether section 392.14 per se grants to drivers the right to refuse to commence assigned trips during hazardous weather conditions. See Brief of the Assistant Secretary at 13.

⁶In this connection, I do not find the fact that Duff could, under section 395.10 of 49 C.F.R., require a driver to drive in adverse conditions for two hours over the maximum driving time to be a basis for limiting section 392.14 to hazardous conditions encountered on the road. Paragraph (c) of section 395.10 makes clear that the two-hour requirement is applicable only where the adverse driving conditions were not apparent at the time of dispatch.

⁷Proof that section 392.14 would be violated is no different from proof of a violation of other provisions of DOT's motor carrier's safety regulations. Thus, proof of a violation of section 393.40(a), which requires that motor vehicles "have brakes adequate to control the movement of, and to stop and hold...", would require actual proof that the brakes do not hold, and would not be satisfied by merely showing the driver's reasonable belief as to the condition of the brakes. In other words, while the driver's refusal to drive is based on his assessment that the regulation would be violated, his refusal is protected only where this assessment is correct.

⁸Duff also points to the testimony of Abell, who lives 27 miles away from the terminal, that he drove to and from the terminal on January 31, 1985, and experienced no delays. T. at 340-1. Abell came to work at six o'clock in the morning on January 31, T. at 353, before it started snowing. It is not clear exactly when he left the terminal but he was not there at 8:15 p.m. when Robinson was due to report to work. T. at 395. While he testified that he had no delays in reaching home, he does not state what roads he travelled on and the condition of those roads. In view of this and in view of Abell's uncertainty as to when it began snowing, this testimony does not support an inference that driving conditions in Louisville were not hazardous on the evening of January 31, 1985.

⁹In support of this argument, Duff cites to and discusses the contents of RX-KKK, an exhibit rejected by the ALJ. Duff does not argue that the ALJ's rejection of this exhibit is erroneous. Since this exhibit is not part of the official record of this proceeding, I do not consider it.

¹⁰Respondent also raises questions as to the credibility of other witnesses. Respondent's Brief at 15-18. The fact that Veltman and Robert Howell did not drive a truck, nor were scheduled to drive on the evening of January 31, 1985, does not make incredible their testimony as to the weather conditions they actually observed. The credibility of other witnesses referred to by Duff is not in issue inasmuch as their testimony is not relied on.

¹¹Nor have I read this provision narrowly. In Palmer v. Western Truck Manpower, slip op. January 16, 1987, I found that a driver's refusal to drive an improperly loaded but otherwise sound tractor-trailer constituted a refusal to drive because of the unsafe condition of the equipment.

¹² Duff argues that its "suspension" or discipline of Robinson did not violate the STAA because Robinson's refusal to drive either because of bad weather or because he could not get out of his driveway is not a justification for refusing to perform assigned work under the applicable collective bargaining agreement, Respondent's Post-Hearing Brief at 20, and because discipline for inability to get to work is subject to grievance under that agreement. Respondent's Brief at 28, n.29. The terms of collective bargaining agreements do not diminish any rights afforded employees under the STAA.

¹³The Assistant Secretary points to the close proximity of time between Robinson's refusal to drive and its refusal to pay the lump sum as creating an inference that Duff was motivated by Robinson's protected activity. Since Robinson's retirement occasioned Duff's refusal to make the lump sum payment, the close proximity in time with Robinson's protected activity does not, without additional evidence, support such an inference.

¹⁴I do not adopt the ALJ's reason for finding no retaliation -- namely, "that Duff did not attempt to treat the Complainant any differently than any of its other employees in regard to the deferred wages." R.D. and 0. at 11. Robinson is not required to prove that he was treated differently from other retirees. Deford v. TVA, 700 F.2d 281, 286 (6th Cir. 1983).