This proceeding arises under the employee protection (whistleblower)
provision of the Surface Transportation Assistance Act (STAA), 49 U.S.C. app. § 2305
(1982), which prohibits covered employers from discharging or otherwise discriminating against
employees who have engaged in certain protected activities.
Complainant McGavock alleges that he was terminated from his position
as a driver for Respondent Elbar in violation of section 2305(a) and (b) of the STAA.
Specifically, Complainant contends that his termination was in retaliation for having advised
Respondent that he (Complainant) would no longer drive "broken down" equipment
or exceed speed limits in order to meet trip schedules, or falsify his trip logs by reducing the
number of miles actually driven so as to reflect compliance with speed laws, and for threatening
to file safety complaints with the United States Department of Transportation (DOT). A further
reason for his termination, Complainant alleges, was his refusal to drive an unsafe truck tractor.
Respondent contends that it terminated Complainant because he violated company policy by
negligently operating a truck tractor and this negligence resulted in the destruction of company
equipment. On March 28, 1986, after a hearing on the record, Administrative Law Judge (ALJ)
Robert J. Brissenden issued a Recommended Decision and Order (R.D. and O.) concluding that
Respondent violated section 2305(a) but had not violated section 2305(b) of the STAA.1
1The ALJ's R.D. and O. was
accompanied by a Notice of Transmittal which stated that the Final Decision and Order would be
issued within 120 days of the date of filing of post hearing briefs, apparently reflecting the ALJ's
view that the filing of the briefs constituted the "conclusion of [the] hearing. it 49 U.S.C.
app. § 2305(c)(2)(A). I construe the "conclusion of [the] hearing" to be the
date on which the ALJ's R.D. and O. is issued, in this case March 28, 1986.
No person shall discharge, discipline, or in any manner discriminate against
any employee with respect to the employee's compensation, terms, conditions, or
privileges of employment because such employee (or any person acting pursuant to a
request of the employee) has filed any complaint or instituted or caused to be instituted
any proceeding relating to a violation of a commercial motor vehicles safety rule,
regulation, standard, or order, or has testified or is about to testify in any such proceeding.
No person shall discharge, discipline, or in any manner discriminate against
an employee with respect to the employee's compensation, terms, conditions, or privi-
leges of employment 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 or
serious injury to himself or the public due to the unsafe condition of such equipment.
The unsafe conditions causing the employee's apprehension of injury must be of such
nature that a reasonable person, under the circumstances then confronting the employee,
would conclude that there is a bona fide danger of an accident, injury, or serious
impairment of health, resulting from the unsafe condition. In order to qualify for
protection under this subsection, the employee must have sought from his employer, and
have been unable to obtain, correction of the unsafe condition.
4I take administrative notice of
these regulations which were in effect at the time of the alleged violation. The record does
contain a copy of the Federal Motor Carrier Safety Regulations published by the American
Tractor Association in July of 1979 and issued by Respondent to each of its drivers. (Ex. R-2).
While the substantive requirements cited to above are also found in Ex. R-2, there are, as result
of amendment of the regulations, some differences in section numbers.
5Any fee application filed
pursuant to § 2305(c)(2)(B) should be filed with the ALJ.