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.
1Complainants appeared prose 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 prose.
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, seeMcCavock 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 primafacie 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).