Brothers v. Liquid Transporters, Inc., 89-STA-1 (Sec'y Feb. 27, 1990)

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Brothers v. Liquid Transporters, Inc., 89-STA-1 (Sec'y Feb. 27, 1990)

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

DATE: February 27, 1990
CASE NO. 89-STA-0001

IN THE MATTER OF

CHESTER J. BROTHERS,
COMPLAINANT,

LIQUID TRANSPORTERS, INC.,
RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

FINAL DECISION AND ORDER

Before me for review is the [Recommended] Decision and Order (D. and O.) of Administrative Law Judge (ALJ) W. Ralph Musgrove issued on December 4, 1989, in the captioned case which arises under the employee protection provision of the Surface Transportation Assistance Act of 1982 (the Act). 49 U.S.C. app. § 2305 (1982). The ALJ dismissed Complainant's claim that he was unlawfully discharged, finding that at the time of discharge Complainant was not engaged in protected activity pertaining to commercial motor vehicle safety. On review, I conclude that Respondent did not violate the Act and that the complaint must be denied. 29 C.F.R. § 1978.109(c)(4) (1988).

The employee protection provision of the Act, as relevant to this case, 49 U.S.C. app. § 2305(b), prohibits an employer from discharging an employee for refusing to operate a motor vehicle when such operation constitutes a violation of any federal rules, regulations, standards or orders applicable to commercial motor vehicle safety.¹ Complainant alleged below that at the time of discharge he was fatigued and had been on duty 15 hours following eight consecutive hours off duty, so that he could not operate a motor vehicle without violating Department of Transportation (DOT) regulations at 49 C.F.R. §§ 392.3, 395.3 (1988). Complainant therefore alleged that his refusal to work when ordered to do so by Respondent constituted protected activity under the Act, making the discharge unlawful.² Respondent claimed that no DOT regulations were ever implicated because Complainant was not ordered to operate a motor

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vehicle at the time he claimed to be tired, but instead was directed to begin an eight hour rest break so that he could relieve the other driver on his driving team when Complainant was no longer fatigued. Respondent contends, therefore, that Complainant was not engaged in activity protected under the Act and the termination was not unlawful.

The ALJ found inter alia that the record established the following facts. In the approximately 24-hour period from 3:30 p.m. on October 26, 1987, to 3:00 p.m. on October 27, 1987, at which time Complainant left work refusing to take an assigned run, Complainant had been on duty a total of 15 hours following eight consecutive hours of sleeper berth time. (CX 5). On October 27, 1989, a Friday, Respondent received an unusually large number of chemical loads for transport from its principal customer, a chemical manufacturer. (T. 260). One such load, designated an "emergency" run to Canada from Respondent's terminal in Brandenburg, Kentucky, was assigned to a two-man driver team, one of whom was on vacation. (T. 259-260). Complainant returned to Respondent's Brandenburg terminal at 11:00 a.m. on October 27, 1987, and was told between noon and 1:30 p.m. by the dispatcher that he had been assigned the Canada run, replacing the driver on vacation. (T. 269-270). Complainant told the dispatcher he was tired and did not want to take the run and needed the next day off for personal business. (T. 42). The terminal manager subsequently told the dispatcher to instruct Complainant to get into a sleeper berth and start a sleeping break. (T. 261, 311). Complainant refused to obey the instructions. (T. 261). About 1:00 p.m. the terminal manager personally told Complainant that he had to take the run and to start his rest break or he would be terminated. (T. 51, 312, 319). Complainant did not go to the sleeper berth, but left the terminal premises at 3:00 p.m. Complainant was terminated by letter dated October 28, 1987, for his failure to follow verbal orders from the dispatcher and terminal manager. (CX 4).

I find that the ALJ's findings of fact are supported by substantial evidence in the record considered as a whole. Accordingly, these facts are conclusive and I expressly adopt them. 29 C.F.R. § 1978.109(c)(3).

The burdens of proof and production for use in proceedings under the Act were accurately stated by the ALJ.³ See Generally McGavock v. Elbar. Inc., Case No. 86-STA-5, Sec. Order, July 9, 1986, slip op. at 10-11. In order to establish a prima facie case, a complainant must show that he engaged in protected activity, that he was subject to adverse employment action, and that his employer was aware of his protected activity when it took the adverse action. After a prima facie case has been established, the burden shifts to the employer to rebut the presumption of discrimination by producing evidence that the adverse action was taken for a legitimate, nondiscriminatory reason.⁴ The complainant then must establish that the reason proffered by the employer is not the true reason for the adverse action.

The ALJ concluded that Complainant had not established a prima facie case because he failed to show that he engaged in protected activity. I agree. With regard to Complainant's reliance on 49 C.F.R. § 392.3,⁵ I agree with the ALJ's determination that Complainant's refusal to work in a fatigued condition is not protected activity on the particular facts of this case where the employer instructed Complainant to begin a rest break and not to operate a commercial motor vehicle. I accordingly adopt the ALJ's analysis on this issue.

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As to Complainant's reliance on 49 C.F.R. § 395.3(a),⁶ I adopt the ALJ's analysis with certain qualifications. The crux of Complainant's argument is that because he had logged 15 hours of on duty time (following eight consecutive hours off duty) in the period beginning at 3:30 p.m. on October 26, 1987, and ending at 3:00 p.m. on October 27, 1987 (CX 5), he could not be required to work any further without violating Section 395.3(a)(2) of the regulations. While it is true that Complainant had accumulated the requisite 15 hours on duty to trigger the prohibition of Section 395.3(a)(2), that prohibition applies solely to driving. Respondent did not instruct Complainant to drive. Moreover, as stated by the ALJ, if Complainant had followed instructions and begun a rest break as instructed he would have accumulated 8 or more hours of sleep before he would have been required to drive, eliminating the restriction of Section 395.3(a)(2).

As additional grounds for his determination that Section 359.3(a)(2) was not violated, the ALJ states:

Furthermore, even if the trip had to depart after only two hours, the Complainant would have accumulated the required sleeper birth [sic] off-duty time, since he already had 7 and one-half hours of such break time (during the 24 hour period involved), i.e., from 7:00 PM to 12:00 midnight on October 26th, and 5:30 AM to 8:00 AM on October 27th (CX 5; Tr. 78-87). The provisions of § 395.3(a)(3) permit such bifurcated break time in sleeper birth [sic] rig trips.

D. and O. at 11-12. I must disavow this analysis. Although the provisions of Section 395.3(a)(3) permit the cumulation of rest time, it must be cumulated in a maximum of two periods, neither of which may be less than 2 hours. Therefore, if Complainant were to cumulate additional rest time he could bifurcate only the 2.5-hour period from 5:30 a.m. to 8:00 a.m. on October 27, 1987, with the sleeper berth time he was instructed to begin by Respondent. The 5-hour period from 7:00 p.m. to midnight on October 26, 1987, may not be cumulated. The logic of the ALJ's reasoning would still prevail, however, in that Complainant would have cumulated the required 8 consecutive hours off duty under the regulation once he had slept for only an additional 5.5 hours as instructed by Respondent. To further buttress the conclusion that Section 359.3(a)(2) was not violated, the ALJ states:

The record in this case shows that the Complainant during the 46.5 hour period (3:30 PM, October 25th to 11:00 AM, October 27th) had 19.5 hours of sleeper birth [sic] time as compared to 18.25 hours of driving time (Tr. 78-87; CX 5). In view of that, there was no reason for the Respondent to believe he was fatigued to the point that the proffered 8, or more, hours of sleeper time would not relieve the fatigue.

D. and O. at 12. It is, of course, self evident that there are 43.5 hours, not 46.5, in the period from 3:30 p.m. on October 25th to 11:00 a.m. on October 27th. More importantly, the record shows that during this period Complainant had 15.75 hours of driving time, not 18.25. (CX 5). These revisions, however, in no way alter the ALJ's conclusion that there was therefore "no reason for Respondent to believe [Complainant] was fatigued to the point that the proffered 8, or more, hours of sleeper time would not relieve the fatigue," D. and O. at 12, especially since the correct figures show Complainant having had even less driving time in proportion to sleeper berth time for the period in question. Accordingly, for the reasons stated by the ALJ, as herein

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supplemented and qualified, I agree that Complainant's refusal to work did not violate 49 C.F.R. § 395.3(a) and did not constitute protected activity under the Act.

Complainant further argues that his termination violated company policy as set forth in the Employee Handbook (CX 8). Specifically, Complainant alleges that his refusal to work constituted a Lesser Violation (CX 8, p. 21-22), exposing Complainant at most to a one-week suspension, and did not constitute insubordination, a Major Violation (CX 8, p. 18), for which termination could be imposed. Even if true, Complainant's allegations do not constitute an action for which the Act provides a remedy. The company policy violations alleged by Complainant, involving the type of discipline Respondent could impose, do not implicate commercial motor vehicle health or safety matters. As stated previously Section 405(b) of the Act, 49 U.S.C. § 2305(b), as applicable to the facts of this case, prohibits an employee's discharge for refusing to operate a motor vehicle in violation of any federal rules, regulations, standards or orders applicable to commercial motor vehicle safety. There is nothing in this provision of the Act which would make the employer's alleged violation of its employee handbook, by choosing to terminate Complainant rather than suspend him, remediable.

Finally, Complainant contends that Respondent is estopped under the doctrine of res judicata from alleging that Complainant's termination was based upon violation of some company rule, because the issue of Complainant's misconduct was adjudicated in Complainant's favor by the local unemployment compensation board. (CX 9). As stated above, the issue of whether Complainant violated some provision of the Employee Handbook is not within the Act's purview and therefore is not an issue for which either party can claim an advantage. Accordingly, I need not reach this issue, although I nevertheless agree with Complainant's ultimate conclusion in his argument (Cl. Br. at 18) that the sole issue to be determined in this case is whether Complainant was terminated for refusing to operate a motor vehicle in violation of DOT regulations.

Wherefore, I append to this order the [Recommended] Decision and Order of December 4, 1989, which I hereby adopt as supplemented and qualified in this order. The complaint is accordingly DENIED.

SO ORDERED.

Elizabeth Dole
Secretary of Labor

Washington, D.C.

[ENDNOTES]

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 commercial motor vehicle safety. . . .

49 U.S.C. app. § 2305(b).

²Complainant also argues that his termination violated company policy as articulated both in the Employee Handbook, Complainant's Exhibit (CX) 8, and in past practices of the company. Complainant further contends that Respondent is estopped from alleging that Complainant's termination is based on violation of the Employee Handbook because of the res judicata effect of a ruling by the Department of Employment Services, Division of Unemployment Insurance, Commonwealth of Kentucky, which determined that Complainant did not willfully violate any company rule. (CX 9). These arguments are addressed below.

³These burdens derive from models articulated and applied in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981), and Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977). See Roadway Exp. Inc. v. Brook, 830 F.2d 179, 181 n.6 (11th Cir. 1987).

⁴The employer "need not persuade the court that it was actually motivated by the proffered reasons." Texas Dept. of Community Affairs v. Burdine, 450 U.S. at 254. However, the evidence must be sufficient to raise a genuine issue of fact as to whether the employer discriminated against the employee. "The explanation provided must be legally sufficient to justify a judgment for the [employer]." Id. at 255.

⁵

No driver shall operate a motor vehicle, and a motor carrier shall not require or permit a driver to operate a motor vehicle, while the driver's ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him to begin or continue to operate the motor vehicle. However, in a case of grave emergency where the hazard to occupants of the vehicle or other users of the highway would be increased by compliance with this section, the driver may continue to operate the motor vehicle to the nearest place at which that hazard is removed.

49 C.F.R. § 392.3.

⁶

(a) Except as provided in paragraphs (c) and (e) of this section and in § 395.10, no motor carrier shall permit or require any driver used by it to drive nor shall any such driver drive: (1) More than 10 hours following 8 consecutive hours off duty; or (2) For any period after having been on duty 15 hours following 8 consecutive hours off duty. (3) Exemption: Drivers using sleeper berth equipment as defined in § 395.2(f), . . . . may accumulate the required 8 consecutive hours off duty resting in a sleeper berth in two separate periods totaling 8 hours, neither period to be less than 2 hours, . . . .

49 C.F.R. § 395.3(a).