Long v. Roadway Express, Inc., 88-STA-31 (Sec'y Sept. 15, 1989)

May 9, 2009

DOL Home > OALJ Home > Whistleblower Collection

USDOL/OALJ Reporter
Long v. Roadway Express, Inc., 88-STA-31 (Sec'y Sept. 15, 1989)

U.S. DEPARTMENT OF LABOR
SECRETARY OF LABOR
WASHINGTON, D.C.

DATE: September 15, 1989
CASE NO. 88-STA-31

IN THE MATTER OF

ARCHIE LONG, ET AL.,¹
COMPLAINANTS,

ROADWAY EXPRESS, INC.,
RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

SECRETARY'S DECISION AND REMAND ORDER

This proceeding arises under the employee protection provision of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1982).

Complainants, Archie L. Long, Gail S. Clark, Roger D. Schlapp and Thomas E. Palmer, over-the-road drivers for Respondent Roadway, allege that they were deprived of delay time pay in violation of the STAA when they refused to drive during hazardous weather conditions. Roadway contends that, under the applicable collective bargaining agreement, Complainants are not entitled to delay time pay. After a hearing on the complaints, Administrative Law Judge (ALJ) Kenneth A. Jennings issued, on May 16, 1989, a Recommended Decision and Order (R.D. and O.) finding that Respondents did not violate the STAA (1) because Complainants had failed to establish that Respondent had taken adverse action against them, since Complainants had not proven their entitlement to delay time pay, and (2) because the denial of delay time pay was not a per se violation of the STAA. Upon review of the entire record in this case, I have concluded that the ALJ erred and, consequently, I do not accept his recommendation. Rather, for the reasons set forth below, I find that Complainants have established that Respondent violated the STAA by depriving them of delay time pay.

The basic facts in this case are not in serious dispute. During the early morning hours of December 26, 1987, Respondent dispatched 12 of its tractor-trailer drivers from its terminal in Irving, Texas, to haul freight to Pecos, Texas, a distance of approximately

[Page 2]

420 miles. Hearing Transcript (T.) at 44. Complainants were among these drivers. Not all of the drivers were dispatched together. Complainant Long and seven other drivers (none of whom is a complainant in this case) left the terminal shortly before 3 a.m. T. at 46, 48-49. Clark and Palmer left the terminal together at 6:00 a.m. T. at 102-103; Joint Exhibit (J.X.) #3 at 25-26. Schlapp, who was traveling alone, left at 7:00 a.m. T. at 137. Nor were all of the Complainants hauling identical trailers. Complainants Long, Clark and Palmer each were pulling two "pups" - i.e., short trailers.² T. at 46-47, 104; J.X. #3 at 22. Complainant Schlapp drove a tractor with a single 45 foot trailer, and part of his freight consisted of hazardous material.³ T. at 136-137. Complainants all traveled on Interstate 20.

Each of the Complainants encountered hazardous road conditions and discontinued driving at Eastland, Texas, a distance of approximately 115 miles from the Irving terminal. T. at 46. Complainant Long testified that at Ranger Hill, an area which is 15 or 20 miles before Eastland, the rain was freezing with the result that he had difficulty in steering, there was an accident, and there were a few cars and trucks in a ditch. T. at 45, 65. After discussing the weather conditions on their CB radios, Long and the seven other drivers he was traveling with exited the interstate arriving at the Dairy Queen Restaurant in Eastland at 6:00 a.m. T. at 51, 68. From there, Long called Roadway's dispatcher coordinator to advise him of the hazardous driving conditions. According to Long, he spoke with dispatcher Willie who told him to wait in Eastland and call back in two hours. When Long called back informing Willie that the weather conditions had remained the same, Willie told him that he and all the Roadway drivers at the Dairy Queen were relieved of duty and to call back in another two hours. At 10:00 a.m., when Long called back again, Willie again told him to wait there and to call again in another two hours. Two hours later when Long called back, Long spoke to Larry, another dispatcher, and advised Larry that he (Long) was at a motel where he was going to park until morning, until the roads cleared up. Larry asked Long if he were taking himself "out of service", to which Long responded "whatever". T. at 54.

Complainants Clark and Palmer also encountered icy and sleeting conditions causing vehicles to slide and skid, particularly just after they had gone over Ranger Hill. T. at 103, 106; J.X. #3 at 28. According to Palmer, shortly before Eastland, he was not driving even as fast as five miles per hour, and "trailers were sliding off on the shoulder and the traffic was extremely heavy, because it was the day after Christmas." J.X. #3 at 30, 35. Clark and Palmer testified that they knew via their CB radios that several Roadway drivers were stopped at Eastland and that one Roadway driver was in a ditch having slid off the road. T. at 103; J.X. #3 at 33. The reason, however, that Clark decided to pull off the road at Eastland was that her "truck jackknifed and was sliding all over the highway". T. at 105. At approximately 10:00 a.m., Clark and Palmer pulled off onto the service road at the Eastland exit where Clark listened to other drivers over her C.B. radio. Id. There Clark and Palmer were joined by Complainant Schlapp,⁴ who had decided that, because of the "severe icing conditions" and his--hazardous cargo "the prudent thing to do would be to get the vehicle 'off the road, out of the public's way, to a safe haven". T. at 105, 137, 139. After Clark, Palmer and Schlapp agreed that it was not safe to continue driving, Clark called dispatcher Willie to whom she described the driving problems and told him that she was "going to bed", meaning that she was

[Page 3]

shutting down her truck and laying over in Eastland. Willie asked Clark if she were voluntarily relieving herself of duty, to which Clark responded that she did not care what he wanted to call it but, since it was unsafe to drive, she was "going to bed." Palmer and Schlapp also decided to stay over. T. at 108. Clark thereupon went to a nearby motel where she asked for eleven rooms to be billed to Roadway. Clark, Palmer and Schlapp checked into the motel, and Clark communicated to the other Roadway drivers at the Dairy Queen Restaurant the fact that the motel rooms were available for them. Those drivers checked in later. T. at 109. All of the Complainants completed their run to Pecos the next day.⁵

The record also establishes that, of the 12 Roadway drivers dispatched on the December 26, 1987, run to Pecos, one driver, Louis R. Bohannon, who was traveling 3 or 4 miles ahead of Complainants Clark and Palmer, did not lay over in Eastland but completed the run to Pecos. Bohannon testified that he traveled with trucks of other companies, that the bridges were icy, and that he had to travel much slower than usual, but that he had "driven on a whole lot worse" roads. T. at 242-244.

Respondent Roadway paid the motel bill (lodging and meals) for each of the Complainants.⁶ T. at 57. Roadway, however, refused to pay Complainants any compensation for the unauthorized hours they laid over in Eastland. Complainants expected payment for this pursuant to Article 50, Section 4, of the Southern Conference Area Over-the-Road Supplemental Agreement, an edition of the National Master Freight Agreement, which requires that drivers be compensated for time delayed because of "impassable highways."⁷ Complainants Long, Clark and Palmer filed grievances against Roadway for its refusal to pay for the delay time.⁸ These grievances, however, were never filed by Complainants' local union. T. at 58, 87, 114; J.X. #3 at 55.

According to Tyson Johnson,⁹ the Assistant Business Representative for Teamster Local 745 who handles Roadway grievances, delay time is paid under the "impassable highways" provision where the state closes the road or the employer instructs a driver to go to bed, but is not paid "where a number of drivers or a driver has gone to bed and the employer can establish where traffic, not only their own equipment, but equipment of other carriers, whether they be union or non-union, has traveled the same routes within the same time frame . . ." T. at 262-264.

II.

The issue presented by this case is whether Roadway's refusal to pay the Complainants for their Eastland layover was in retaliation for Complainants' engaging in conduct protected by the STAA. Roadway's position is that its refusal to pay for the Eastland delay is not violative of the STAA because Complainants were freely permitted to exercise their right to refuse to drive and because Complainants are not entitled to delay time pay under the "impassable highways" provision of their collective bargaining agreement. The position of the Complainants and the Assistant Secretary is that Respondent's delay time policy is discriminatory on its face and, even if not discriminatory on its face, its application to Complainants was discriminatory.

[Page 4]

As recognized by the ALJ and as argued by Roadway, the applicable burdens and order of presentation of proof in cases arising under section 2305 require that Complainants initially present a prima facie case establishing that they engaged in protected conduct, that Roadway was aware of that conduct, and that Roadway took adverse action against them, and further require that Complainants present evidence sufficient to raise an inference that the protected conduct was the likely motive for the adverse action. McGavock v. Elbar. Inc., Case No. 86-STA-5, Sec. Final Decision and order, July 9, 1986. Accord, Moon v. Transport Drivers Inc. v. Brock, 836 F.2d 226, 229 (6th Cir. 1987). See also Roadway Express, Inc. v. Brock, 830 F.2d 179, 181 n. 6 (11thCir. 1987), endorsing these burdens of proof and production.

The ALJ found that Complainants' refusal to drive was protected under section 2305(b).¹⁰ Roadway does not challenge this finding,¹¹ nor does Roadway challenge that it was aware that Complainants had ceased driving because they considered it unsafe to continue their trips. Roadway, however, argues that, as found by the ALJ, Complainants have failed to establish the adverse action element of their prima facie case. Roadway also argues that Complainants have not met their prima facie burden of showing that there was a causal link between their protected activity and the alleged adverse action. Respondent's Brief A at 5.

A. Whether Complainants Have Established That Roadway Took Adverse Action Against Them

The ALJ found that, since Complainants had not established their entitlement to the delay time pay, "the denial of said pay cannot be an adverse employment action because an employer is not guilty of discriminatory treatment by refusing to pay an employee if that employee is not otherwise entitled to be paid." R.D. and O. at 7.

The ALJ has misunderstood the nature of the showing that must be made to establish that an adverse action has been taken. Any employment action by an employer which is unfavorable to the employee, the employee's compensation, terms, conditions, or privileges of employment constitutes an adverse action. While an employer may have a non-discriminatory reason for taking the action and, therefore, ultimately prevail against a charge of illegal retaliation, that does not alter the fact that the employer took some step or action which adversely affected the employee's compensation, terms, conditions, or privileges of employment. Thus, regardless of the employer's motivation, proof that such a step or action was taken is sufficient to meet the employee's burden to establish that the employer took adverse action against the employee.

To hold otherwise would alter the allocation of proof established for STAA retaliation cases. In a retaliatory discharge case, for example, the result would be that a complainant could establish a prima facie case only by proving that he or she was entitled not to be discharged, which could be accomplished solely by proving that the employer had no conceivable legitimate reason for the discharge. This would not comport with the requirement that it is the employer's burden to furnish a legitimate management reason for the adverse action. McGavock, slip op. at 10, quoting Dartey v. Zack Company, Case No. 80-ERA-2, Sec. Dec. April 25, 1983, slip op. at 7-9. See also Jeffries v. Harris City Community Action Ass'n, 615 F.2d 1025, 1030 (5th Cir. 1980)

[Page 5]

(Title VII race and sex discrimination), and Loeb v. Textron, Inc., 600 F.2d 1003, 1004 (5th Cir. 1979) (age discrimination), where parallel burdens of proof apply.

Roadway cites to Moon, 836 F.2d at 229, as support for the proposition that, "[w]hen the Complainants failed to present evidence of their entitlement to 'delay time pay', they concurrently failed to present proof that they were the subject of an 'adverse employment action'." Respondent's Brief A at 30. The cite to Moon is not well taken. Moon had been discharged by his employer, allegedly for making safety complaints. The basis of the Sixth Circuit's ruling that Moon had failed to establish a prima facie case of retaliatory discharge under the STAA was the Court's conclusion "that Moon has failed to raise an inference that his discharge was causally related to his safety complaints." 836 F.2d at 231. This failure, however, did not mein that Moon had failed to establish that he had been subjected to adverse action, but meant that Moon had failed to meet the third element of a prima facie case - namely, that a causal link existed between the adverse action taken by his employer and his protected activity. Indeed, the court explicitly stated that "[t]here is no dispute that the first two elements of a prima facie case of retaliatory discharge have been established: Moon has engaged in protected activity and his employer has taken adverse employment action against him." 836 F.2d at 229.

Roadway does not dispute Complainants' testimony that they did not receive delay time pay. Nor does Respondent contest that the withholding of delay time pay is an action affecting Complainants' compensation.¹² Since, for purposes of establishing that they were subjected to adverse action, Complainants do not need to prove entitlement to the delay time pay, I find that the ALJ's conclusion that Complainants failed to prove the adverse action element of their prima facie case is not supported by substantial evidence nor is in accordance with law. Accordingly, I find that Complainants, by establishing that they were denied delay time pay, have demonstrated by a preponderance of the evidence that Roadway took adverse action against them.

B. Whether Complainants Have Established A Prima Facie Case of Causation

Roadway argues that Complainants also have failed to meet the third element of their prima facie case, which is to present evidence from which a causal connection between Complainants' refusal to drive and Roadway's denial of delay time pay can be inferred. Complainants have so failed, contends Roadway, because "the Complainants offered no evidence whatsoever of a causal link between the exercise of their rights under the STAA and any 'discriminatory' or 'retaliatory' action on the part of Respondent Roadway". Respondent's Brief A at 5.

Specifically, Roadway argues that Complainants have failed to establish discrimination by Roadway because Complainants did not submit evidence of disparate treatment. Respondent's Brief A at 30-32. In order to establish a violation of the STAA, however, it is not necessary for Complainants to prove that they were treated differently from other Roadway drivers. Hufstetler v. Roadway Express, Case No. 85-STA-8, Sec. Final Decision and Order, August 21, 1986, slip op. at 45, aff'd, sub nom Roadway Express. Inc. v. Brock, 830 F.2d 179 (11th Cir. 1987). Hufstetler followed the holding in DeFord v. TVA, 700 F.2d 281 (6th Cir. 1983), a case arising under the whistleblower provision of the Energy Reorganization Act, where the court stated:

[Page 6]

It has also been suggested by TVA that DeFord should be required to prove that he was treated differently from other similarly situated participants in the NRC investigation, but this contention as well must be rejected. Inclusion of such a requirement among the elements of a claim would take no account of the possibility that more than one person might be exposed to the same type of discrimination. The statute is aimed at preventing intimidation, and whether the scope of such activity happens to be narrow or broad in a particular case is of no import. An employer should not escape liability upon an otherwise valid claim, for example, solely because it chose to discriminate against three similarly situated employees rather than only one; yet inclusion of the suggested factor as a required element of proof would allow precisely such a result to obtain. Cf. NLRB v. Jemco Inc., 465 F.2d 1148, 1152, (6th Cir. 1972), cert. denied, 409 U.S. 1109, 93 S.Ct. 911, 34 L.Ed.2d 690 (1973) (refusal to countenance "the somewhat absurd result that an employer could never be found in violation of [section 8(a)(3) of the NLRA] so long as he was careful to treat all employees alike, no matter how destructive of employee rights his conduct may be"). 700 F.2d at 286.

Moreover, as noted by the Assistant Secretary,¹³ the record is not devoid of evidence of disparate treatment.¹⁴ While it appears that Roadway usually did not pay delay time where its dispatchers did not authorize drivers "to go to bed", the uncontradicted testimony of Roadway driver Brewer was that, on one occasion in 1980 or 1981, he had been paid delay time when he went to bed after having been refused permission to do so. T. at 174-175.¹⁵ Furthermore, it appears that drivers have been authorized by Roadway to discontinue their trips, and thus have been paid delay time, even though the road has not been closed and other drivers have made it through. Complainant Palmer testified that, in January of 1987, while heading west, he was paid delay time for almost 3 days he spent at Tye, Texas, although two other drivers heading east made it through. J.X. #3 at 62.¹⁶ Also, on January 6, 1988, Roadway drivers Edmonson and Faulkner, who were on a run to Springfield, Missouri, were "put to bed" and paid delay time during that trip although Roadway driver Underhill, who started with them on that run, continued through to Springfield.¹⁷ There is, moreover, the testimony of William Kidwell, Roadway's Relay manager at the Irving terminal, who admitted that Roadway would pay, and sometimes had paid, delay time when a dispatcher authorized the driver to shut down because of weather conditions, even if the highway has not been closed by local authorities or another driver has made it through during the same time frame. T. at 327. This evidence establishes that Complainants, who were denied permission to shut down and not paid delay time because the highway was not closed and Bohannon drove through, were treated differently from the way other drivers had been. Thus, there is sufficient evidence in the record to raise the inference that Complainants were discriminated against.

Furthermore, unlike the more common retaliation case where the issue is whether the adverse action was taken because of the protected conduct or for a totally unconnected reason (such as the employee's incompetence or bad behavior), the very nature of the issue before me establishes a prima facie causal connection between the protected activity

[Page 7]

and the adverse action. It cannot be disputed that the reason that Respondent denied monetary compensation to Complainants for the hours Complainants spent in Eastland is that Complainants refused to continue their trips and that this refusal was because of hazardous road conditions. That there may have been no animus or intent to retaliate against Complainants because of the exercise of their right to refuse to drive under hazardous road conditions, or there may have been a legitimate management reason for the withholding of delay time pay, as Roadway argues, goes not to the prima facie case of causation but to the ultimate question of whether Respondent retaliated against Complainants because they engaged it a protected activity. Thus, the very circumstance here gives rise to-an inference of causal connection sufficient to meet Complainants' prima facie burden.

Accordingly, I find that Complainants have established each element of their prima facie case.

C. Whether Roadway's Refusal to Pay Delay Time Pay Violates the STAA

That Complainants have established a prima facie case does not conclude the inquiry as to whether Roadway violated the STAA.¹⁸ Roadway argues that it has rebutted Complainants' prima facie case of discrimination by demonstrating that its refusal to pay for the delay time was based on the legitimate, nondiscriminatory reason that Complainants were not entitled to such payment under the "impassable highways" provision of the collective bargaining agreement as interpreted by the Southern Area Multi-State Grievance Committee. Respondent's Brief A at 22-27.

As earlier noted, the record establishes that the Southern Area Multi-State Grievance Committee has consistently interpreted the "impassable highways" provision so that drivers are successful in their delay time grievances only when the road is closed by a state law enforcement agency or when similar traffic cannot get through within the same time frame. T. at 304-307 (testimony of Larry H. Christon, Labor Relations Manager for Yellow Freight System, Inc., who has served as a panel member of the Committee); T. at 265-267 (testimony of Tyson Johnson, the local's Assistant Business Representative); T. at 295-297 (testimony of Roadway Labor Manager Donald Bradfield). The "same time frame" is considered to' span an hour or two. T. at 173. According to Respondent's Relay Manager William Kidwell, he made the decision to withhold delay time pay from Complainants because he learned from the Texas Department of Public Safety offices in Abilene and Odessa that Interstate 20 was not closed and that traffic was moving and because of the fact that Bohannon had traveled the same route and was able to reach Pecos. T. at 318. Thus, Roadway has articulated a legitimate, nondiscriminatory reason for its denial of delay time pay to Complainants and has rebutted the inference of discrimination raised by the prima facie case.

Nevertheless, based on a thorough review of the record evidence combined with the reasonable inferences which may be drawn therefrom, I reject Roadway's contention that the "impassable highways" provision of the collective bargaining agreement was the reason for the denial of the delay time pay. Rather, I find that the true reason for such denial was the Complainants' refusal to drive under hazardous conditions, an activity protected by the STAA.

Weighing heavily in this determination is the fact that Roadway,

[Page 8]

without violating the "impassable highways" provision of the collective bargaining agreement, could have authorized the Complainants to "shut down" and would have then paid them for the period of the shut down. Neither the language of the "impassable highways" provision nor the interpretation of that provision by the Grievance Committee compelled Roadway to deny the delay time pay. According to Assistant Business Manager Johnson, the Grievance Committee does not get involved in situations where the employer has authorized drivers to shut down and, as a result, the driver has been paid. T. at 281. The Grievance Committee's interpretation applies, therefore, only where the driver and the employer disagree as to the impassability of the road and the employer has denied the driver the authority to shut down. T. at 280, 299.

That Roadway of its own volition authorizes an employee to shut down and pays delay time pay when it authorizes the shut down is not disputed. As noted earlier, Complainants have established that such authorization has been given and delay time paid even when the highway has not been closed or when another driver has made it through.¹⁹ Thus, the "impassable highways" provision and the criterion of limiting delay time pay to the period when the road is closed or all traffic stopped come into play only when a dispatcher withholds the authorization to shut down. That the authorization to shut down is the determinant factor is further evidenced by the fact that Roadway has never posted nor orally disseminated to all of its drivers the "impassable highways" interpretation which Roadway here relies on. T. at 329-330 (testimony of Relay Manager Kidwell). Nor, apparently, has that interpretation been common knowledge among Roadway drivers. This is demonstrated by the testimony of Complainants Long, Schlapp and Palmer that they were unaware that they were not going to be paid "impassable highways" pay until their return to Irving. T. at 57, 63, 149; J.X. #3 at 48. Complainant Clark was the only one who knew that because she voluntarily relieved herself of duty she would not be paid if another driver got through, but Clark had learned of this rule from "new hires" and some of the drivers "sitting there" (presumably in Eastland) and not from Roadway management. T. at 106. Were the interpretation of the "impassable highways" provision of the collective bargaining agreement the principal criterion for the payment of delay time, Roadway certainly would be expected to have assured that each of its drivers knew of this interpretation. I find that the weight of evidence supports the conclusion that Roadway denied Complainant's delay time pay not because of the grievance committee's interpretation of the "impassable highways" provision but because Roadway had not authorized Complainants to shut down.

According to Relay Manager Kidwell, the authority to shut down depends on whether Roadway dispatchers believe that driving conditions are dangerous. T. at 317. Thus, where driving conditions are affected by weather, the only plausible explanation for a dispatcher's refusal to authorize a driver to shut down, when the driver indicates the need to do so, is that the dispatcher disagrees with the driver as to whether it is safe to drive. I conclude, therefore, that despite Roadway's protestations that it does "not challenge the good faith nature of the Complainants' actions in making an independent decision to cease driving", Respondent's Reply Brief at 7, the crux of Roadway's dispute with Complainants is the Complainants' refusal to continue driving.

Roadway argues that there is no evidence in the record of any animus

[Page 9]

by Roadway or of any intent to retaliate against Complainants for exercising their statutory right to cease driving. Respondent's Brief A at 30-31. However, as I previously have held, "direct evidence is not required for a finding of causation. The presence or absence of retaliatory motive is provable by circumstantial evidence, even in the event that witnesses testify that they did not perceive such a motive (citations omitted)." Ertel v. Giroux Brothers Transportation. Inc., Case No. 88-STA-4, Sec. Final Decision and Order, February 16, 1989, slip op. at 24.

As evidence which entitles it to an inference that it had no retaliatory motive, Roadway points to the testimony of Relay Manager Kidwell and of Complainants themselves that Complainants were not disciplined or reprimanded in any way for their shut down and that, whether to shut down under hazardous road conditions is a decision which rests with each driver. See T. at 65-66, 83-84, 87, 119-120, 150-152, 318; J.X. #3 at 23-25, 68-69. I do not agree. The absence of disciplinary action or of any direct confrontation over the exercise of the employee's protected activity does not compel an inference of lack of any retaliatory motive when the employer has other means by which it can retaliate. Here, Roadway's disapproval of Complainants' shut downs could be expressed by denial of delay time pay. There was no need for disciplinary action or reprimands or overt disapproval of the shut downs in order for Roadway to distance itself from the Complainants' protected activity and yet achieve the same impact on Complainants' right to refuse to drive. Accordingly I do not infer from this evidence a lack of retaliatory motive on Roadway's part. Rather, I find that the totality of the record evidence supports the presence of a retaliatory motive.

Testimony in the record reveals that the main concern of the Roadway dispatchers was to keep the dispatches going despite the hazardous road conditions. When Complainants Long, Clark and Palmer notified the Roadway dispatchers that it was too hazardous to drive, the dispatchers withheld authorization to shut down and insisted that these Complainants were taking themselves out of service. Complainant Palmer testified that "they was, you know, wanting us to go or either commit ourselves to taking ourself out of service, and it was too bad to go." J.X. #3 at 24. Complainant Clark testified that, after informing the dispatcher that her truck had jackknifed, that it had "been in three different lanes going in about four different directions and [that she] had another truck behind [her] that had jackknifed and was sliding towards [her]," that "[t]here were people going down around in the median," and that "[t]here were more going around [her] the other side in the bar ditch", the dispatcher responded by asking her if she were voluntarily relieving herself of duty.²⁰ T. at 106. This occurred at approximately the same time (10:00 a.m.) that Long was authorized by the same dispatcher to shut down for 2 hours. J.X. #6.

Complainant Long testified that, after he and the other Roadway drivers at the Dairy Queen had been authorized to temporarily cease driving at 6:00 a.m., and again at 8:00 a.m. and 10:00 a.m., he called Roadway at 12:00 p.m. as he had been instructed to do. Although reporting that road conditions had not changed and that he was going to park overnight until the roads "cleared up", the dispatcher simply asked Long if he were taking himself out of service. T. at 52-54. None of these dispatchers testified, and there is no evidence that they attempted to assess the condition of the equipment of each of these drivers and whether that equipment was safe to drive under the existing road conditions.²¹ This, despite the undisputed testimony

[Page 10]

of Complainants and other Roadway drivers, all experienced drivers, that whether driving is hazardous depends on the type of equipment ("pup" trailers are more dangerous to drive), the condition of the equipment (some trucks steer differently), and the placement of the load (back-heavy load gives less traction). T. at 47, 212, 252. This testimony leads me to conclude that Roadway's uppermost concern was to keep the dispatches going despite the hazardous road conditions and, when Complainants refused to complete their dispatches, to retaliate by withholding the authorization to shut down.

Moreover, there is evidence demonstrating that, it was not reasonable for Roadway to apply the criteria of road closing and traffic moving as a basis for the payment of delay time pay. The record reveals that Texas seldom officially closes its roads. J.X. #3 at 18; T. at 96. Thus, while road closing may be a valid basis for the denial of delay time pay in other states covered by the collective bargaining agreement, it is virtually a meaningless standard for Texas roads. Denying the authorization to shut down, and hence the delay time pay, because some traffic was moving on Interstate 20 and Bohannon was able to make it to Pecos also was not reasonable in the face of the fact that eleven other Roadway drivers on the same run found it necessary to cease driving. That Bohannon made it through did not mean that the road was safe to drive. As noted by the Sixth Circuit in Duff, Lexis 9164 at 9, where the employer relied on the fact that some of its drivers completed their runs on the same day as the complainant refused to drive, "[t]he successful completion of a mission, in the absence of other evidence, does not necessarily prove that the mission was safe." Certainly, in the case of Schlapp, a higher level of safety was necessary than in Bohannon's case because of the hazardous cargo Schlapp was carrying. Thus, I am convinced that the "impassable highways" provision, as interpreted, is merely a convenient shield for Roadway's true intent to retaliate against Complainants for their refusal to drive.

From the evidence presented I find that Complainants have established by a preponderance of the evidence that Roadway's management reason was pretextual, and that they were denied delay time pay because they exercised their protected right of refusing to drive in violation of a Federal regulation and their protected right to refuse to drive because of the unsafe condition of their equipment. Accordingly, I find that Roadway has violated section 2305(b) of the STAA.

This case is remanded to the ALJ for the calculation of damages, consistent with this decision.

SO ORDERED.

Elizabeth Dole
Secretary of Labor

Washington, D.C.

[ENDNOTES]

¹Since the Assistant Secretary for Occupational Safety and Health (OSHA) prosecuted this case, the ALJ should have captioned this case: Assistant Secretary of Labor for Occupational Safety and Health, Prosecuting Party, and Archie Long, et al., Complainants, v. Roadway Express, Inc., Respondent. See 29 C.F.R. § 1978.108(a) (1988).

²Clark testified that hers were "28-foot trailers". T. at 104.

³Schlapp testified that his vehicle had "placards". T. at 137. I take official notice of the Department of Transportation's Federal Motor Carrier Safety regulations, at 49 C.F.R. §§ 177.823 and 397.1, which require that vehicles containing hazardous material must be "marked or placarded" in a specified manner.

⁴Although Schlapp departed the Irving terminal later than Clark and Palmer, unlike them, Schlapp had made no stops prior to arriving at Eastland. T. at 102-103.

⁵By the morning of December 27, road conditions had improved only slightly and there was only one lane open. T. at 56. Clark and Palmer, who were traveling together, heard on the CB radio that another Roadway driver jackknifed into a ditch, that a truck belonging to another company had also jackknifed, that there were about 20 cars in a ditch and that the roads were backed up besides being icy. As a result, they stopped until the backlog cleared. T. at 111-112; JX #3 at 45-46. Schlapp, who traveled alone, also stopped because of the icy roads and the jackknifed Roadway truck but for not as long as Clark and Palmer. T. at 144. Long, who had left Eastland a little earlier than the others, did not stop although he encountered "real bad" road conditions. T. at 57.

⁶Clark testified that she did not get paid for any meals. T. at 120. However, it appears that she can recoup this amount by filing with Roadway a form called a Request for Pay. T. at 133-135.

⁷Section 4 of Article 50 provides in pertinent part: on breakdowns or impassable highways, employees on all runs shall be paid the minimum hourly rate for all time spent on such delays, commencing with the first hour or fraction thereof, but not to exceed more than eight (8) hours out of each twenty-four (24) hour period. . . .J.X. #2 at 113; see also J.X. #1 at 108-109.

⁸Complainant Schlapp did not file a grievance because he was told that one had already been filed and that, if it were successful, he also would be compensated. T. at 148.

⁹Johnson testified that Palmer's and Long's grievances were not timely filed. T. 266, 268. Johnson investigated Clark's grievance and, on ascertaining that Bohannon had made it through to Pecos, did not file the case with the grievance committee. T. at 272.

¹⁰Complainants alleged in their complaints that their refusal to drive was protected under both prongs of section 2305(b) that which protects the refusal 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" and that which protects the refusal 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." See Legal Memorandum filed April 7, 1989, with the ALJ by the Acting Solicitor of Labor at 6-9. The ALJ's finding that Complainant's layover at Eastland was an activity protected under the "because" clause, R.D. and O. at 4, is supported by substantial evidence. The record, however, also supports a finding of protected activity under the "when" clause inasmuch as section 392.14 of the Department of Transportation's Federal Motor Carrier Safety Regulations require the discontinuance of the operation of a vehicle when hazardous weather conditions adversely affect visibility or traction. 49 C.F.R. § 392.14 (1987). See Robinson v. Duff Truck Line, Inc., Case No. 86-STA-3, Sec. Final Decision and Order, March 6, 1987, (driving under hazardous weather conditions constitutes a violation of both the "when" and "because" clauses), aff'd (on the basis of the "when" clause), sub nom Duff Truck Line, Inc. v. Brock, No. 87-3324 (6th Cir. 1988) (LEXIS, Genfed library, Court of Appeals file).

¹¹"The Respondent stipulated that the Complainants exercised their prerogative under the STAA in electing to cease driving during the course of the dispatch from Irving, Texas to Pecos, Texas on December 26, 1987." Exhibit A of Respondent Roadway Inc.'s Brief in Support of the Recommended Decision and Order of Administrative Law Judge (Respondent's Brief A) at 5. See also Respondent's Brief A at 6-7, n.3, and Respondent Roadway Express Inc.'s Reply Brief in Support of the Recommended Decision and order of Administrative Law Judge (Respondent's Reply Brief) at 7.

¹² After arguing that it paid Complainants their full compensation, Roadway states that "[u]nder the terms of the collective bargaining agreement 'delay time' is extraordinary pay and constitutes a form of compensation over and above the norm." Respondent's Reply Brief at 4, n.1. To the extent that this may be an argument that, where normal compensation is paid, the withholding of delay time pay does not constitute a violation of the STAA, I reject it. Both under Title VII of the Civil Rights Act and under section 8(a)(4) of the National Labor Relations Act, the denial of monetary payments over and above regular compensation, e.g., bonuses, overtime, vacation pay, have been held to be within the purview of these statutes. See Hickman v. Flood & Peterson. Ins., 29 FEP 1467 (D. Colo. 1982); Capital Electric Power Asso., 171 NLRB 262, 1968-1 CCH NLRB ¶ 22, 446; Preston Products Co., 169 NLRB 34, 1968-1 CCH NLRB ¶ 22,061; NLRB v. Jemco Inc., 465 F.2d 1148 (6th Cir. 1972), cert. denied, 409 U.S. 1109 (1973).

¹³See Brief of the Assistant Secretary before the Secretary of Labor (Assistant Secretary's Brief) at 18.

¹⁴Roadway contends that "the ALJ rejected the Solicitor's 'disparate treatment' arguments because there existed no testimony to support same (J.D. pp 7-8)" and that, therefore this factual finding should be deemed to be conclusive and accepted by me. Respondent's Reply Brief at 9 and 12. I decline to do so. The ALJ concluded that Roadway "has not applied this policy in an arbitrary or discriminatory manner," R.D. and O. at 8, without any discussion of Roadway's practice of paying for delay time whenever one of its dispatchers authorized a driver to shut down.

¹⁵Roadway, citing to United Airlines v. Evans, 431 U.S. 553, 558 (1977), and to Scarlett v. Seaboard Coastline Railroad Company, 676 F.2d 1043, 1049 (5th Cir. 1982), contends that Brewer's testimony cannot be used because the incident he refers to predates enactment of the STAA. Respondent's Brief A at 21. Neither case supports Roadway's position. The issue in these cases was whether there was evidence to establish a continuing violation. In Evans, the Court stated that "[a] discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed. It may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences. 431 U.S. at 558. Brewer's testimony constitutes such background evidence.

¹⁶Roadway states that Palmer testified that the 2 drivers going east made it "because road conditions improved in an easterly direction." Respondent's Brief A at 15. Palmer, however, testified that a "bunch" of drivers going east shut down and were at the same motel as he was because they "didn't make it". He did state that "a little ways out" the two drivers ran out of the storm "and actually made it". J.X. #3 at 63. This suggests that east of Tye weather conditions were better but it does not alter the-fact that these drivers, prior to reaching Tye from the west, had to travel through the same weather conditions as the drivers like Palmer, who were heading west, would have had to go through.

¹⁷Roadway argues that, because he got stuck in the snow before he was put to bed, "Edmonson was not 'put to bed' during a time frame in which co-driver Underhill 'passed through' the same dispatch route". Respondent's Reply Brief at 16. Underhill was driving when Edmonson was put to bed. See Respondent's Exhibits (R.X.) 4 and 5. There is nothing in the record to indicate that, had Edmonson not been put to bed, he would have encountered any worse driving conditions than Underhill did. Roadway also argues that Edmonson would have run out of allowable driving hours before reaching Springfield. Respondent's Reply Brief at 16. Underhill testified that he ran out of hours before reaching Springfield. T. at 211, 214.

¹⁸

Once a prima facie case is established, one which raises an inference that protected activity was the likely reason for the adverse action, the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its employment decision. If the defendant is successful in rebutting the inference of retaliation, the plaintiff bears the ultimate burden of demonstrating by a preponderance of the evidence that the legitimate reasons were a pretext for discrimination.

Moon, 836 F.2d at 229 (citations omitted). A complainant's burden "now merges" with his or her ultimate burden of persuading the adjudicator that the Complainant was intentionally discriminated against. Texas Department of Community Affairs v. Burdine, 450 F.2d 248, 256 (1981).

¹⁹As noted in Burdine, "evidence previously introduced by the plaintiff to establish a prima facie case . . . and inferences properly drawn therefrom may be considered by the trier of fact on the issue of whether the defendant's explanation is pretextual. Indeed, there may be some cases where the plaintiff's initial evidence, combined with effective cross-examination of the defendant, will suffice to discredit the defendant's explanation." 450 U.S. at 255 n.10.

²⁰See also the testimony of Relay Manager Kidwell that Clark's "dispatch was never broken by the company." T. at 321.

²¹Relay Manager Kidwell admitted that, in determining whether drivers are paid for shutting down under hazardous conditions, Roadway does not "take into consideration . . . factors, such as traffic or load of the trailers or steering on icy roads." T. at 322.