Holloway v. Lewis Grocer Co., 87-STA-16 (Sec'y Jan. 25, 1988)

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Holloway v. Lewis Grocer Co., 87-STA-16 (Sec'y Jan. 25, 1988)

U.S. DEPARTMENT OF LABOR

SECRETARY OF LABOR
WASHINGTON. D.C.

DATE: January 25, 1988
CASE NO. 87-STA-16

IN THE MATTER OF

LEVI HOLLOWAY & ROBERT MURRAY,
COMPLAINANTS,

LEWIS GROCER COMPANY,
RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

DECISION AND ORDER

This proceeding arises under the employee protection 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 Holloway and Complainant Murray,¹ commercial motor vehicle drivers for Respondent, allege that they were discharged by Respondent because of their refusal. to drive an unsafe vehicle. It appears that, on December 11, 1986, Complainants were scheduled to drive Tractor 300, with trailer, from Respondent's terminal in Indianola, Mississippi, to Fargo, North Dakota. When Complainants arrived at the terminal, they found that the pink copy of the Driver's Inspection Report, on which they had indicated the repairs that were needed on Tractor 300, had not been signed. An initial check was made by Respondent's mechanics who, according to Complainants, found the tractor unsafe to drive. This led Complainants to believe that the vehicle had not been repaired. Complainants thereupon refused to drive the tractor.

Management personnel then checked the tractor and declared it safe to drive. During the period that the tractor was being checked. Complainant Holloway engaged in an altercation with Respondent's Director of Transportation and, as a result, was removed from the premises by Respondent's security personnel. After the vehicle was examined, Complainant Murray was offered the opportunity to test drive it but he refused. Other drivers were assigned the run and made the trip without any breakdown of the vehicle. On December 19, 1986,

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Complainants were discharged. Subsequently, in April or May of 1987, Respondents recalled Complainants who refused to return to work because Respondent did not offer to pay them back wages.

On September 25, 1987, following a hearing on the complaints, Administrative Law Judge (ALJ) Ben H. Walley issued a Recommended Joint Decision and Order (R.J.D. and O.) recommending that the two complaints be dismissed because Complainants' discharge was not discriminatory.² The ALJ's decision is now before me for review. After careful review of the record in this case, I have concluded, for the reasons stated below, that I accept the ALJ's recommendation that the complaint of Complainant Murray be dismissed, but I reject the ALJ's recommendation that the complaint of Complainant Holloway be dismissed.

The key issue before the ALJ was whether Complainants' refusal to drive Tractor 300 was based on a "reasonable apprehension of serious injury to [themselves) or the public due to unsafe condition of" the tractor. Section 2305(b) of the STAA prohibits, in part, the discharge of an employee for refusing to operate a vehicle

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 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.

The ALJ concluded that. although initially the Complainants had a reasonable apprehension of serious injury since, from the unsigned pink copy of the Driver's Inspection Report, it appeared that the vehicle had not been repaired, Respondent 'had made additional inspection and repairs and had assured Complainants that the vehicle was safe and the trip should be made", and, therefore, Complainants "lost their right to refuse to make the road trip as scheduled, and [their] subsequent release or discharge was not discriminatory.' R.J.D. and O. at 9. In essence, therefore, the ALJ found that Complainants had been able to obtain correction of the unsafe condition and, therefore, did not qualify for protection under the above-quoted portion of section 2305(b).³

The ALJ's conclusion was based primarily on the following findings:

12. Although the mechanic, Buddy Peoples, had corrected the defects identified by the inspection report, had failed to sign the "pink" copy as required, and had used the wrong date of "12-9-86," the white copy for the files was signed and noted the repairs had been made, additional inspection corrections were made by mechanic David Triplett (R-3), after the

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"error" had been discussed. I conclude that Tractor 300 had, by that time, been repaired as required and the vehicle was safe for the trip to be made.

13. Complainant Holloway had already been escorted from the premises, but I find and conclude that Mr. Murray was fully advised of repairs to Tractor 300, and given an opportunity to 'road test" the vehicle before replacements were assigned to make the trip to North Dakota. And, after Mr. Murray declined to make the 'road test' with Mr. Miller, he and Mr. Vandrell made a 'road test" of about 15 miles and found the vehicle to be safe to make the scheduled trip. There were no problems with the 'spring pins', the primary area of dispute. This was explained to Mr. Murray, Mr. Holloway having already left, but Mr. Murray declined again to take it for a 'road test.' He wasn't interested in it. He was convinced that the truck was unsafe."

R.J.D. and O. at 7-8, There is substantial evidence in the record to support these findings and to support the ALJ's conclusion that Complainant Murray was aware that the vehicle had been repaired and declined the opportunity to road test the vehicle so as to ascertain for himself that the vehicle was safe to operate. Accordingly, I agree with the ALJ that Complainant Murray was able to obtain correction of the unsafe condition.

As the ALJ noted, however, the events described in these findings occurred after Complainant Holloway had been compelled by Respondent to leave the premises. Moreover, the record contains no evidence establishing that Complainant Holloway was notified that the repairs on the truck had been made. Complainant Holloway testified that, after the Complainants discovered that the pink slip had been signed, Respondent's mechanics checked the truck and Respondent's mechanics supervisor 'Harvey Forest said to me that the truck needed some work on it, and they were going to check and see if they could get us another truck to go south." Transcript of Hearing held on July 1, 1987 (T.) at 29. According to Holloway, while he and Murray were waiting for another truck and before any work had been performed on the vehicle, Don Vandrell, Director of Transportation, called and told the dispatcher that Complainants should drive the vehicle. "At that point, that's when we refused -- I refused to drive the vehicle,' Holloway testified. T. at 30.

Following this, Holloway contends, Vandrell entered the upstairs area where Holloway was drinking coffee and ordered him out of the area. Holloway says that he then followed Vandrell downstairs where, after Holloway attempted to look under the vehicle and to get his radio out of the truck, Vandrell had security personnel escort him off the company property. T. at 31. Holloway testified that Vandrell never asked him to road test the truck, id., and that Steven Miller, Fleet Maintenance Manager for Respondent, never told him that the tractor had been repaired. T. at 36. Miller, who inspected and road tested the vehicle and only then determined that the vehicle was safe to drive, confirmed that he did not so advise Holloway because Holloway had already "left previous to that, and I'm not sure how much of that he was involved in." T. at 99. There is no other evidence suggesting that Complainant-Holloway was informed that the vehicle was in a safe condition. The record

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establishes that Holloway did not leave the premises voluntarily and took no action which kept him from being advised that the vehicle was in a safe condition. Thus there is not substantial evidence to support the ALJ's conclusion that Holloway lost his right to refuse to make the scheduled trip.

The record evidence also supports a finding that Complainant Holloway was discharged because of his refusal to drive the vehicle he considered unsafe. Although Respondent argues that Complainants were merely replaced by other drivers and that, due to overstaffing, Respondent continued to use other drivers rather than Complainants, Respondent's Post-Hearing Brief at 6-7, it is clear that each of the Complainants was discharged. T. at 32-3, 50-2. Furthermore, replacement of an employee because he engages in a protected activity is just as much a prohibited act under the STAA as discharge for that reason. The record supports a finding that Complainant Holloway was discharged because of his refusal to drive the vehicle.⁴

In summary, therefore, I accept the ALJ's findings and conclusions with respect to Complainant Murray, and I find that Complainant Murray has failed to establish that Respondent violated section 2305(b) of the STAA. Accordingly, the complaint of Robert Murray is dismissed.

I find, furthermore, that Complainant Holloway has established that Respondent violated section 2305(b) of the STAA and is, accordingly, entitled to reinstatement, backpay and compensatory damages.⁵

THEREFORE, Respondent Lewis Grocery Company is Ordered to:

1. Reinstate Complainant Holloway to his former position at the wage rate and with the same terms, conditions, privileges and benefits to which he would be entitled if he had not been discharged.

2. Pay backpay less interim earnings to Complainant Holloway from the date of his discharge to and including the date in April or May of 1987 on which Respondent offered Complainant a position as an overthe-road driver.

3. Pay to Complainant Holloway interest on the backpay in accordance with 28 U.S.C. 1 1961 (1982).

4. Expunge from Respondent's records all material and references relative to Complainant Holloway's discharge.

5. Pay to Complainant Holloway any attorney fees or other costs and expense reasonably incurred by Complainant for, or in connection with, the bringing of his complaint.

SO ORDERED.

ANN MCLAUGHLIN
Secretary of Labor

Washington, D.C.

[ENDNOTES]

¹Complainants appeared pro se at the hearing. Subsequently, they secured counsel who filed with the ALJ a motion to reopen the record and a post-hearing brief. Before me, Complainants appear pro se.

²In reaching this conclusion, the ALJ accepted or modified the Secretary's Findings issued by Leon P. Smith, Supervisory Investigator of the Occupational Safety and Health Administration (OSHA), on April 17, 1987, and corrected on May 1, 1987. R.J.D. and O. at 2. Such findings are preliminary findings and, even where made part of the record, as in this case, carry no weight once a hearing has been requested. Hearings under section 2305 must be "conducted as hearings de novo," 20 C.F.R. § 1978.106(a) (1987), and an ALJ should make his/her own findings without regard to the preliminary findings.

³Although the ALJ failed to analyze the case in accordance with the applicable burdens of proof, see McCavock v. Elbar. Inc., Case No. 86STA-5, Final Decision and Order issued July 9, 1986, slip op. at 1011, it appears that the ALJ found that Complainants had met their burden of proving a prima facie case of discriminatory discharge by proving that their refusal to drive the vehicle was based on a reasonable apprehension of serious injury, that they sought repair of the vehicle and that they were discharged for their refusal to drive, but found that Respondent met its burden of proving a legitimate nondiscriminatory reason for Complainants' discharge by proving that it had corrected the unsafe condition of the vehicle.

⁴Although Complainant Holloway testified that he was told he 'was being replaced because I used loud and abusive language," presumably during his encounter with Vandrell, Complainant denies the use of such language. T. at 34; RX-5. There is no testimony contradicting Holloway's denial. Vandrell did not testify. Miller simply testified that Holloway and Vandrell "weren't really yelling or screaming at each other, but, you know, it looked like they had - it wasn't a very friendly discussion." T. at 95.

⁵In their post-hearing brief, Complainants also argue that they are entitled to relief under section 2305(b) because they refused to operate a vehicle in violation of Federal regulations -- namely, sections 396.7, 396.11 and 396.13 of the Federal Motor Carrier Regulations, 49 C.F.R. §§ 396.7, 396.11 and 396.13 (1986). Complainant's [sic] Post-Hearing Brief at 5-6. The ALJ failed to rule on this allegation. After a review of the record evidence, I find that Complainants have failed to prove that operation of the vehicle was "likely [to] cause an accident or a breakdown ..." (§396.7), or that Respondent required them to depart from the terminal without carrying a legible, certified copy of the last inspection report on the power unit (§396.11), or that Respondent prevented them from becoming satisfied that the vehicle was in a safe operating condition or meeting the stated inspection and signature requirements. (§396.13).