Davis v. H.R. Hill, Inc., 86-STA-18 (Sec'y Mar. 19, 1987)

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Davis v. H.R. Hill, Inc., 86-STA-18 (Sec'y Mar. 19, 1987)

U.S. DEPARTMENT OF LABOR

SECRETARY OF LABOR
WASHINGTON, D.C.

DATE: March 19, 1987
CASE NO.: 86-STA-18

IN THE MATTER OF

LEON B. DAVIS, JR.
Complainant,

H.R. HILL, INC.,
Respondent.

BEFORE: THE SECRETARY OF LABOR

DECISION AND ORDER OF REMAND

This case arises under the employee protection (whistleblower) provision of the Surface Transportation Assistance Act of 1932 (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 Complainant Leon B. Davis, Jr., a tractor-trailer driver for or Respondent H.R. Hill, Inc., alleging that he was discharged in violation of section 2305 of the STAA. A hearing on this complaint was held before Administrative Law Judge (ALJ) C. Richard Avery. Complainant Davis appeared pro se at this hearing. Subsequent to the conclusion of the hearing, the ALJ issued, on November 20, 1986, a Recommended Decision and order (R.D. and O.) recommending that Davis' complaint

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be dismissed. The ALJ's recommendation is based on his finding that Complainant failed to establish that his discharge was due to activity specifically protected under the Act. The ALJ's decision is now before me for review.¹

Based on my review of the record as a whole, I conclude that the ALJ's decision is not in accordance with law. Accordingly, I do not accept the ALJ's recommendation of dismissal, and I remand the case for further consideration.

The section 2305(a) alleged violation.

Complainant Davis alleged a violation of paragraph(a) of section 2305 of the STAA.² Transcript of August 5, 1986, Hearing (T.) at 10. The ALJ found inapplicable this paragraph, which prohibits the discharge of an employee "because such employee . . . has filed any complaint . . .relating to a violation of a commercial motor vehicle safety rule, regulation standard, or order The ALJ's basis for this finding is that "[t]here is no evidence in this case that the Complainant ever recorded an alleged safety violation to a State or Federal Agency." R.D. and O. at 2.

The ALJ erred in holding that a complaint must be made to a state or Federal agency in order to be protected activity under section 2305(a). Nowhere in paragraph (a) of section 2305 is there such a restriction. Nor would it be consistent with the purpose of the STAA to limit the coverage of this paragraph only to those complaints filed with governmental agencies. The purpose of the STAA is to promote safety on the highways. An employee's safety complaint to his employer is the initial step in achieving this goal. As noted in the section by section analysis of section. 2305 prepared by the Senate Commerce Committee which reported out the legislation, section 2305 "[e]nforcement of commercial motor vehicle safety laws and regulations is possible only through an effort on the part of employers, employees, State safety agencies, and the Department of Transportation" and further that "the Committee believes that section [2305] provides one more incentive to employers to comply with rules, regulation standards and orders issued under the title." 128 Cong. Rec. S14028 (daily ed. December 7, 1982). An internal complaint by an employee enables the employer to comply with the safety standards by taking corrective action immediately and limits the necessity of enforcement through formal proceedings.

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Moreover, it has been held under a similar whistleblower provision of the Energy Reorganization Act of 1974 (ERA), 42 U.S.C. § 5351 (1992), that the internal complaints of employees are protected. See Mackowiak v. University Nuclear Systems, Inc., 32-ERA-8 (April 29, 1933) slip op. at 8-11, remanded on other grounds, 735 F.2d 1159 (9th Cir. 1984); Wells v. Kansas Gas and Electric Co., 83-ERA-12 (June 14, 1984), aff'd, Kansas Gas and Electric Co. v. Brock., 730 F.2d 1505 (10th Cir. 19851, cert. denied, 54 U.S.L.W. 3853 (June 30, 1986) (No. 85-1403). Contra Brown and Root v. Donovan, 747 F.2d 1029 (5th Cir. 1984). Although Mackowiak and Wells interpreted language not present in subparagraph (a) of section 2305, the underlying rationale for holding that an employee's internal complaints are a protected activity under the ERA is that such complaints are the first step in achieving the statutory goal of promoting safety. This rationale applies equally to section 2305(a) of the STAA.

The record establishes that Complainant Davis made internal complaints concerning the condition of the vehicles he was assigned to drive. Davis encountered various defects in his vehicles while on the road, particularly in the electrical systems of the units. T. at 18, 19, 22, 27, 29 and 31. These defects were all reported to Respondent Hill. T. at 104-105, 107. Indeed, under Hill's repair policy, a driver, while on the road, could go ahead with a minor repair for which he would be reimbursed later, but was required for all other repairs to obtain prior approval and, where such approval was given, to have the repair done at the truck shop selected on that occasion by a Hill shop foreman or dispatcher. T. at 13-20, 99-101. A driver's reporting of defects in the vehicles he has driven is an activity protected under Section 2305(a). See Hufstetler v. Roadway Express, 85-STA-8, slip op. at 24 (August 21, 1986), appeal docketed, No. 86-8771 (11th Cir. Oct. 20, 1986).

Furthermore, the testimony of both Davis and of Hershel G. Hill, terminal manager and vice-president of Respondent Hill, establishes that, on September 5, 1985, Davis and Hershel Hill had a conversation concerning Unit 12 which Davis had been driving and that, during this conversation, Davis complained about the electrical condition of Unit 12. T. at 26 and 168-9.

The fact that Complainant Davis may not have pointed to any particular commercial motor vehicle safety standard that was violated does not deprive him of coverage under Section

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2305(a). See Nix v. Nehi-RC Bottling Company, Inc., 84-STA-1, slip op. at 8-9 (July 13, 1984). The problems reported by Davis do in fact relate to violations of particular safety standards. Davis testified that these problems involved inoperable four-way flashers, T. at 18, 22, 27 and 29; turn signals, T. at 19 and 31; cab and trailer lights, including running lights, T. at 22, 27 and 31; a broken throttle spring that prevented acceleration, T. at 22-24; and a broken seat that restricted his vision. T. at 57-60. He also testified as to occasions on which the shop foreman or dispatcher refused to permit him to make the necessary repairs, and, consequently, he was compelled to drive the vehicle without the repairs from Lubbock, Texas, back to the terminal at Muskogee, Oklahoma, a distance of 300 miles, T. at 22-25, and from California to the Muskogee terminal. T. at 31.

The problems encountered by Davis relate to violations of the Department of Transportation's (DOT) Motor Carrier Safety Regulations. 49 C.F.R. Parts 350-399 (1985). Section 396.3(a)(1) of these regulations provides that "[p]arts and accessories shall be in safe and proper operating condition at all times. These include those specified in Part 393 of this subchapter and any additional parts and accessories which may affect safety of operation . . . ." Furthermore, section 393.13 of Part 393, which details the lighting, reflector and electrical equipment requirements for commercial motor vehicles, requires that each truck tractor be equipped with certain lamps and light signals. 49 C.F.R. § 393.13. Additionally, section 396.7 of the DOT regulations prohibits the operation of a vehicle "in such a condition as to likely cause an accident or a breakdown of the vehicle." 49 C.F.R. § 396.7.

Since Davis' allegations fall within the purview of section 2305(a) of the STAA, I remand this case to the ALJ for further consideration and a recommended decision as to whether a violation of section 2305(a) has been established. In determining whether Respondent Hill discharged Davis in violation of this section, the ALJ should analyze the record evidence in terms of the applicable burdens and order of presentation of proof. See McGavock v. Elbar, Inc., 86-STA-5, slip op. at 10-11 (July 9, 1986), (quoting Dartey v. Zack Company, 80-ERA-2, slip op. at 6-9 (April 25, 1983)).

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The section 2305(b) alleged violation

Complainant Davis also alleged a violation of paragraph (b) of section 2305 of the STAA.³ T. at 10. The ALJ found that Davis engaged in an activity protected by this section when, on December 9, 1985, he refused to drive two vehicles (Unit # 84 and Unit #76) which were in an unsafe condition. R.D. and O. at 4-5. The ALJ, however, found that Respondent Hill did not violate section 2305(b) "[b]ecause the incident which precipitated the complainant's discharge could have occurred in the absence of the protected activity R.D. and O. at 5.

The ALJ's conclusion was not in accordance with law. It appears that the ALJ found that Respondent Hill was motivated by both a prohibited and a legitimate reason in discharging Davis, and concluded that, since Davis was discharged "in part," R.D. and O. at 5, for a legitimate reason, Davis had failed to establish a violation of section 2305(b). The ALJ thus failed to apply the proper burden of proof.

Where an employer is motivated by both a legitimate and an illegal motive, "the employer, in order to avoid liability, has the burden of proof or persuasion to show by a preponderance of the evidence that it would have reached the same decision even in the absence of the protected conduct." Dartey, slip op. at 9. A mere showing that the employee was "in part" discharged for a legitimate reason does not meet the employer's burden of proof.

I, therefore, remand this case to the ALJ for reconsideration under the proper burdens of proof and for a recommended decision as to whether a violation of section 2305(b) has been established. The ALJ is directed to analyze all of the relevant evidence in terms of each of the stages of proof set out in Dartey. In remanding this case, I make no decision as to the merits of this case, and none should be implied.

In order to keep the delay resulting from this remand to a minimum, the ALJ is directed to complete his further review within sixty days.

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SO ORDERED.

William E. Brock

Secretary of Labor

Washington, D.C.

[ENDNOTES]

¹n determining whether to accept the ALJ's recommendation, I have limited my review to an examination of whether the case record contains substantial evidence to support the ALJ's findings of fact and whether the ALJ's decision is in accordance with law. This is the standard of review which I will apply to all ALJ decisions covered by the newly promulgated regulations implementing section 2305 of the STAA, 51 Fed. Reg. 42,091 (1986) (to be codified at 29 C.F.R. Part 1973). See § 1978.109(c)(3). These regulations became effective on December 22, 1986, and thus are applicable to my subsequent review of the ALJ's decision.

² Section 2305(a) provides:

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 vehicle safety rule, regulation, standard, or order, or has testified or is about to testify in any such proceeding.

³ Section 2305 provides:

No person shall discharge, discipline, or in any manner discriminate against an employee with respect to the employee's compensation, terms, conditions, or privileges of employment for refusing to operate a vehicle when such operation constitutes a violation of any Federal rules, regulations, standards, or orders applicable to commericial motor vehicle safety or health, or because of the employee's reasonable apprehension of serious injury to himself or the public due to the unsafe condition of such equipment. The unsafe condition 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.