DATE: October 21, 1993
CASE NO. 89-STA-7
IN THE MATTER OF
THOMAS E. MOYER,
COMPLAINANT,
v.
YELLOW FREIGHT SYSTEM, INC.
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER ON REMAND
The case before me on remand from the United States Court of
Appeals for the Sixth Circuit, Yellow Freight System, Inc. v.
Martin, 954 F.2d 353 (6th Cir. 1992), arises under Section
405
of the Surface Transportation Assistance Act of 1982 (STAA),
49 U.S.C. app. § 2305 (1988). On remand, the court has
directed reexamination of the Section 405(a) issue. In this
regard, STAA Section 405(a) prohibits discrimination because an
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." 49
U.S.C. app. § 2305(a).
A.
The issue now before me is whether Respondent Yellow Freight
System, Inc. (Yellow) unlawfully discharged Complainant Thomas
Moyer because he participated in a proceeding "relating to" a
commercial motor vehicle safety violation. The Administrative
Law Judge (ALJ) in his May 24, 1993, Recommended Decision and
Order on Remand (R.D. and O.) found that the proceeding involved
-- a local "company-level" grievance hearing -- was not
sufficiently related to a safety violation to invoke STAA
[PAGE 2]
protection. I disagree.
Statutory provisions which protect employees for
participating in agency proceedings are accorded "exceptionally"
broad application. NLRB v. Retail Store Emp. U., Local
876, 570 F.2d 586, 590-591 (6th Cir.), cert denied,
439 U.S. 819 (1978); Pettway v. American Cast Iron Pipe
Co., 411 F.2d 998, 1004-1008 (5th Cir. 1969); EEOC v.
Kallir, Phillips, Ross, Inc., 401 F. Supp. 66, 70-71
(S.D.N.Y. 1975). See alsoMarshall v. Whirlpool
Corporation, 593 F.2d 715, 724-725 (6th Cir. 1979),
aff'd, 445 U.S. 1 (1980). The purpose of employee
protection provisions is to protect all forms of access to
respective agencies at all stages of administrative process and
thus to prevent agencies' channels of information from "being
dried up by employer intimidation . . . ." NLRB v.
Scrivener, 405 U.S. 117, 121-124 (1972) (equal and consistent
protection at all stages of investigation and litigation
essential to preserving integrity of the process in its
entirety); DeFord v. Secretary of Labor, 700 F.2d 281, 286
(6th Cir. 1983). SeeNLRB v. Robbins Tire & Rubber
Co., 437 U.S. 214, 239-240 (1978); Croushorn v. Board of
Trustees of Univ. of Tenn., 518 F. Supp. 9, 21-24 (M.D. Tenn.
1980) (employee protected in informing employer of intent to file
charge). See alsoGrand Rapids Die Casting Corp. v.
NLRB, 831 F.2d 112, 116 and n.2 (6th Cir. 1987).
Information and testimony obtained in related proceedings in turn
may precipitate or otherwise bear on STAA complaints or
investigations. [1]
In cases involving participation, e.g., making
complaints or offering testimony, the discriminatee need not
prove the validity of the underlying claim in order to prevail.
Sias v. City Demonstration Agency, 588 F.2d 692, 694-695
(9th Cir. 1978); Novotny v. Great Am. Sav. & Loan Ass'n,
539 F. Supp. 437, 449-450 (W.D. Pa. 1982). Rather, the purpose
of preserving unobstructed channels of information is served if
individuals are protected for providing testimony concerning
possible violations. [2] Cf. Pettway v.
American Cast Iron Pipe Co., 411 F.2d at 1007 (charging
employee protected despite incorrect information presented in
communication with or proceeding before regulatory agency). The
statutory "relating to" language does not restrict protection to
participation in STAA proceedings. The language also
contemplates participation in DOT proceedings and proceedings
under other Federal, and state laws; arbitration; and employer
hearings. [3]
In the instant case, Moyer's co-worker Robert Lee grieved
his discharge, a subject of inquiry being whether Lee could
offer, or had offered, the requisite "medical substantiation" to
justify his absence from work. Briefly, Lee had suffered an
on-the-job injury for which he received workers' compensation.
Resp. Exh. 27 at 6. Although he returned to work for a short
[PAGE 3]
period, his "job-related" muscle spasms returned. Id. at
9, 11, 37-38. [4] Lee previously had taken his vacation early
in order "to get [his] back rested up" and eventually put himself
on Yellow's sick board after he resumed taking muscle relaxant
medication that prevented him from safely operating a motor
vehicle. Id. at 10-11, 14. When Lee attempted to contact
his physician to renew the prescription for his medication, he
discovered that his doctor was on vacation, and he was required
to deal with another, substitute doctor. Id. at 19-20,
38.
Thereafter, Lee received Yellow's standard "72-hour" letter
which notified him that "[p]eriodic weekly medical substantiation
will be necessary to continue required valid absence
verification" and directed: "Within seventy-two (72) hours of
receipt of this letter we will need, in this office, medical
substantiation of your absence from work or your voluntary
resignation will be accepted." R.D. and O. at 3.
In an attempt to assist Lee, Moyer contacted Yellow's line
haul management to explain that Lee was ill, under a doctor's
care, and on medication. Hearing Transcript (T.) 1/26/93 at 35-
41. Lee also communicated his condition to Yellow's dispatch.
Resp. Exh. 27 at 23. Moyer believed that Lee was on workers'
compensation at the time, that Yellow had its own company records
documenting Lee's injury and medical requirements, and that
Yellow had issued Lee the 72-hour letter in error. The record
also indicates that Lee's physician communicated by telephone
with Yellow's Line Haul Manager and advised him that Lee
reportedly had sustained additional injuries. T. 1/26/93 at 168-
170; Resp. Exh. 35.
According to Yellow, this degree of "substantiation" is
insufficient to avoid discharge. Rather, written verification by
a driver's physician is required. Yellow also will accept
nothing less than written verification by a driver's physician
for illness lasting 72 hours or more, for calling in sick on
weekends, and for refusing a dispatch due to driver fatigue. [5]
T. 1/26/93 at 229, 235.
Moyer and Lee essentially challenged the standards of proof
employed by Yellow for determining whether drivers may remain on
the sick board or refuse work when ill or fatigued. If such
standards are unreasonably strict, drivers who do not anticipate
being able to provide the requisite verification, but who
nonetheless are ill or fatigued, may feel compelled to continue
work. For example, a driver incapacitated with influenza may not
anticipate seeing his doctor and, if confronted with a dispatch
assignment, could feel compelled to accept it rather than risk
discharge. Similarly, a driver may delay or forego necessary
medical treatment to avoid risking discharge due to unreasonable
sick board requirements. [6] Driver fatigue offers another
[PAGE 4]
example. A driver who remains in readiness awaiting dispatch for
an extended period could feel compelled to take a delayed
dispatch because of inability to document his fatigue.
Yellow's system thus could encourage drivers to work in
violation of DOT regulations, which provide:
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.
49 C.F.R. § 392.3 (1992). Substance usage also is
regulated. 49 C.F.R. § 392.4. Testimony offered in a
grievance hearing which reveals the manner in which an employer's
sick leave policies may result in violations of DOT regulations
could bear on STAA complaints and investigations, and protection
of employees who participate in such proceedings would serve the
ends advanced in Scrivener and the associated cases set
forth above.
In holding that Moyer had not engaged in protected activity,
the ALJ looked exclusively to the "true purpose" of the grievance
proceeding. [7] R.D. and O. at 9. This focus is unduly narrow
for purposes of Section 405(a). The nature of Moyer's testimony
during the grievance proceeding, raising the question of the
impact of Yellow's sick leave policies on motor vehicle safety,
is sufficient to bring it under the protection of the STAA, even
if it may not have been material to the issues in the grievance
proceeding. Moyer complained essentially that Lee was too ill to
operate a vehicle safely and that Yellow had received sufficient
documentation confirming Lee's illness, namely Moyer's and Lee's
explanations, evidence of Lee's medication, and Yellow's own
records of Lee's workers' compensation claim, including
examination by the company physician.
As discussed above at 2-4, statutory "participation"
provisions are applied broadly to encourage employees to come
forward with information about employer practices. The "true
purpose" of a given proceeding may not always be readily
apparent, especially to an employee who is not immediately
involved, and such an employee would be less inclined to
volunteer information potentially relevant to a possible
violation if protection turned on an after-the-fact determination
about discrete purpose. As stated previously by the Secretary
and quoted by the reviewing court, a "'violation [of DOT
regulations] need not comprise the only or even the predominant
subject of the proceeding.'" Yellow Freight System, Inc. v.
Martin, 954 F.2d at 356. Rather, a proceeding "relating to"
a safety violation is merely one in which information about
safety
[PAGE 5]
is disclosed.
Accordingly, I find that Lee's grievance hearing, in which
he and Moyer complained about Yellow's standards of proof of a
driver's inability to operate a motor vehicle safely, was
sufficiently related to possible safety violations to afford
Moyer protection for his participation.
B.
To prevail on a STAA whistleblower complaint, a complainant
must establish that the respondent took adverse employment action
against him because he engaged in an activity protected under
Section 405. A complainant initially must show that it was
likely that the adverse action was motivated by a protected
activity. Roadway Exp., Inc. v. Brock, 830 F.2d 179, 181
n.6 (11th Cir. 1987); Guttman v. Passaic Valley Sewerage
Comm'rs, Case No. 85-WPC-2, Sec. Dec., Mar. 13, 1992, slip
op. at 9, aff'd, No. 92-3261 (3d Cir. Apr. 16, 1993). The
respondent may rebut such a showing by producing evidence that
the adverse action was motivated by a legitimate,
nondiscriminatory reason. The complainant then must prove that
the proffered reason was not the true reason for the adverse
action. St. Mary's Honor Center v. Hicks, 125 L. Ed. 2d
407, 416 (1993).
As discussed above, Moyer engaged in protected activity
when, on September 28, 1988, he participated in Lee's
company-level grievance hearing held at Yellow's Richland, Ohio,
terminal. On October 5, 1988, Moyer accompanied Lee to his
State-level grievance hearing held in Columbus, Ohio, intending
to testify on Lee's behalf. On October 18, 1988, Yellow's
Richland, Ohio, Linehaul Operations Manager Bert Hackenberg
notified Moyer that a hearing would be convened on October 26,
1988, in order to review his overall work record. Manager
Hackenberg and John Novak, Yellow's Terminal Operations Manager
in Charge of Labor attended the October 26 hearing. [8] Moyer
testified:
I walked in, and Mr. Novak was sitting there.
And he opened up my record book. . . . I sat
down. He said, "You are fired." Closed my
book. And I said, "Do I not get to say
anything?" He says, "You can say anything
you want to say, but it is not going to make
any difference."
T. 1/26/93 at 60. On November 1, 1988, Yellow issued Moyer a
letter of discharge. Resp. Exh. 45.
Moyer thus made an initial, prima facie showing that he
engaged in protected activity, that Yellow took adverse action by
discharging him, and that the adverse action closely followed the
[PAGE 6]
protected activity. SeeCouty v. Dole, 886 F.2d
147, 148 (8th Cir. 1989); Mitchell v. Baldrige, 759 F.2d
80, 86 and n.6 (D.C. Cir. 1985); Burrus v. United Telephone
Co. of Kansas, Inc., 683 F.2d 339, 343 (10th Cir.), cert.
denied, 459 U.S. 1071 (1982) (causal connection established
by showing that employer was aware of protected activity and that
adverse action followed closely thereafter). Yellow then
successfully rebutted Moyer's showing by articulating a
legitimate, nondiscriminatory reason for discharge -- Moyer's
overall work record for the preceding
nine-month period. Accordingly, Moyer was required to prove
that Yellow's reason was pretextual.
On the question of pretext, I have found the following
considerations persuasive:
1. Lee's grievance hearing
Managers Novak and Hackenberg flatly denied that they
threatened Moyer with discharge for participating at Lee's
hearing. T. 1/26/93 at 178-182, 291-293 (Hackenberg); T. 359-360
(Novak). Although at the May 18, 1989, hearing in the instant
STAA case, Hackenberg admitted that he threatened to discharge
Moyer, he testified at the January 26, 1993, hearing on remand
that he was referring to the "fair warning" contained in the
"kicker" sentence of Yellow's warning letters. He testified:
"[I]n all of our warning letters, we tell these people basically
if they do not clean up their act, that they are going to get
more severe disciplinary action, and up to including discharge."
T. 1/26/93 at 259. Compare T. 5/18/89 at 75-76.
The ALJ found that the threat did not occur. After
recounting Moyer's testimony, the ALJ found:
Although Moyer may have felt threatened for
testifying in opposition to what he perceived
was a company effort to terminate Lee, there
is no other evidence that these company
officials actually made such a threat. These
officials were involved in numerous grievance
hearings on a biweekly basis and there was no
suggestion that there was anything unusual,
strange, or even any animosity at the Lee
hearing.
R.D. and O. at 6. After crediting Hackenberg's explanation about
the "kicker" sentence, the ALJ found further: "I find Hackenberg
to be a credible witness and believe his testimony that he did
not threaten Moyer either at the Lee hearing of September 28,
1988, or any other time for testifying on Lee's behalf." R.D.
and O. at 7.
All factual findings, including credibility findings, must
be supported by substantial evidence on the record considered as
[PAGE 7]
a whole. 29 C.F.R. § 1978.109(c)(3) (1992). Where a fact
finder's "theory of credibility is based on inadequate reasons or
no reasons at all, his findings cannot be upheld." NLRB v.
Cutting, Inc., 701 F.2d 659, 667 (7th Cir. 1983). All
relevant, probative, and available record evidence must be
weighed by the fact finder who must make explicit statements as
to what portions of the evidence he has accepted or rejected.
Dobrowolsky v. Califano, 606 F.2d 403, 409-410 (3d Cir.
1979). A full explanation of why specific evidence was rejected
is imperative, since a fact finder "cannot reject evidence for no
reason or for the wrong reason." Cotter v. Harris, 642
F.2d 700, 706-707 (3d Cir. 1981).
Credibility findings that "rest explicitly on an evaluation
of the demeanor of the witnesses" may be accorded exceptional
weight by a reviewing court. NLRB v. Cutting, Inc., 701
F.2d at 663. These "demeanor" findings are in contrast to
credibility findings based on aspects of testimony itself,
e.g., internal inconsistency, inherent improbability,
important discrepancies, impeachment, witness self-interest.
Confronted with a finding that an individual did not impress the
judge "as being a candid witness," the court in NLRB v.
Cutting, Inc., held:
Given its context and the overall reliance on
inferences drawn from the substance of the
testimony, we do not believe the statement
about the witnesses' lack of candor is the
kind of explicit, demeanor-based credibility
finding entitled to exceptional weight under
Kopack v. NLRB, 668 F.2d [946] (7th
Cir. 1982) . . . . An ALJ may not make his
credibility findings unassailable by simply
invoking "the right incantation" to the
witnesses' demeanor.
701 F.2d at 666. SeeDorf v. Bowen, 794 F.2d 896,
901-902 (3d Cir. 1986) (judge's wholesale discounting of
testimony, especially in light of other record evidence which
supported it, required reversal); Kent v. Schweiker, 710
F.2d 110, 116 (3d Cir. 1983) (conclusory wholesale rejection of
testimony did not meet substantial evidence test).
As a preliminary matter, the ALJ's general finding that
Hackenberg was a "credible witness" does not appear to be a
genuine demeanor-based finding, and I decline to accord it
exceptional weight. In addition, in crediting Hackenberg's and
Novak's denials, the ALJ failed to consider evidence that
directly corroborates Moyer's account. At the initial hearing in
the instant case, Lee testified:
[PAGE 8]
[T]he statements are correct that Tom [Moyer]
testified for me -- at the company hearing,
previous to the state hearing, Mr. Hackenberg
said, "If you're going to be on Bob Lee's
side, you're going to be the next one." His
[Moyer's] hearing came up two months later,
and he lost his job. Those were his
[Hackenberg's] words and we have witnesses.
T. 5/18/89 at 48. Lee testified similarly at his June 24, 1992,
deposition which properly was made part of the instant record,
T. 1/26/93 at 99, pursuant to 29 C.F.R. § 18.23 (a)(4)(ii)
(1992). At the hearing, the ALJ expressly stated that he did not
intend to consider the majority of Lee's deposition, including
the following testimony. T. 1/26/93 at 122-123.
A. Yes. And [Yellow's management] asked questions and I gave
them the information of all the medication I was on and what had
happened.
And Mr. Moyer also spoke up and told them the circumstances,
how he had been there trying to help me and trying to handle all
this. And they sort of just laughed at us and said it didn't
make any difference. They disbelieved everything the
medications, everything we offered. . . . I went over my letter
petition and offered my evidence and I showed them that I had my
pill bottles with me. I explained [t]hat I had had a herniated
muscle, I guess they call it, causing muscle spasms, and that bed
rest was the only thing that would help it. I tried it two other
times and I always went to work too fast. This time I was trying
to take off enough time to let my back heal up. . . .
Q. And what happened then at the hearing after you finished,
after Mr. Moyer finished speaking? . . .
A. They said they would get back to us, I believe on the
evidence. But Mr. Hackenberg's attitude was that it was just
like we were liars and he didn't believe a word of it.
Q. So after Mr. Moyer spoke and you spoke . . . the company
made a presentation?
A. Yeah. They came back with their answers, that they didn't
believe any of it and, as I recall, made Mr. Moyer very angry.
Q. Who made the presentation for the company?
A. Mr. Hackenberg. . . .
[PAGE 9]
A. I remember they got in a shouting match.
Q. Who?
A. Mr. Hackenberg and Mr. Moyer. And Mr. Hackenberg said:
One more word out of you and you will be next. And Tom said
something back and Mr. Hackenberg told [Assistant Linehaul
Operators Manager] Swane to write his name down. He said, you
will be next, at the next hearing you will be fired, too. And
that was in front of all the witnesses.
Q. So Mr. Hackenberg and Mr. Moyer engaged in an argument?
A. Hmm-Hmm.
Q. They were angry at each other, correct?
A. Their voices were raised.
Q. And Mr. Hackenberg said one more word out of you, referring
to Moyer, and you will be next?
A. I'll fire you next, as I recall.
Q. And then he gave some direction to Mr. Swane to write that
down?
A. Write his name down to be on the next hearing list. A short
time later, at the next union hearing, his name was brought up
and he was terminated. . . .
Q. In this angry exchange between Mr. Moyer and Mr. Hackenberg
during your grievance, when it was being heard the one you
referred to a few minutes ago.
A. Yes.
Q. You described what Mr. Hackenberg said. What did Mr. Moyer
say during this exchange with Mr. Hackenberg?
A. Something about -- I don't remember the exact words about
accusing us of being liars, when we were sitting there telling
the truth and they just refused to believe anything we told them.
Q. Do you recall anything else Mr. Moyer said during the angry
exchange?
[PAGE 10]
A. No. I think that's about when Mr. Hackenberg said well, if
you say anything else, you're going to be next. I'll fire you
next.
Resp. Exh. 27 at 36-37, 40-42, 45.
Moyer's testimony is similar. When asked what Hackenberg
said to him, Moyer testified:
A. The best I can remember is, "Moyer, you should have kept
your mouth shut. You had it made. And you are next. We are
going to fire you next."
Q. And what had you said prior to that that might have led
Mr. Hackenberg to threaten to terminate you? . . . .
A. For testifying [about] Robert E. Lee's condition, that he
was unable to go back to work. And that I questioned the
workmen's compensation. You know, I did not know anything about
the 72-hour letter. But when it was brought up, I simply said,
"Why would you write him a 72-hour letter if he already had a
doctor's excuse for his workmen's compensation?" And the man was
totally -- he could not even think for himself. He did not even
belong there. The guy is sick.
T. 1/26/93 at 54-55. When asked about Novak's behavior, Moyer
testified:
A. At that time, after [Hackenberg] said that, directly after
that, Mr. Novak was opening up my record book and said, "We are
going to have a hearing on you right now."
Q. Mr. Novak opened what?
A. My personnel file.
Q. Did he have it in his hands?
A. Yes. And then what happened is John Triglia was there. He
says, "No, you cannot open his file. We are not going to let you
have the hearing now."
Q. Okay, John Triglia is a union representative?
A. Right.
Q. Okay. Is there any question in your mind that that is what
happened?
A. Is what what happened?
[PAGE 11]
Q. That these things were said to you?
A. No. I know they were said to me. I was there. I mean, I
can remember. It scared me when they tried to fire me at that
hearing. I did not have any facts straight.
T. 1/26/93 at 342.
Moyer is unwavering in his account of what transpired at
Lee's September 28, 1988, hearing. His additional testimony
about the hearing relating to participants, sequence, and
substance is specific. See, e.g., T. 1/26/93 at 54-57,
117-120, 339-342. Examination of the record in its entirety,
including Lee's corroboration of Moyer's account, persuades me
that the ALJ's finding is not supported by substantial evidence,
and I decline to adopt it. 29 C.F.R. § 1978.109(c)(3)
(1992). I find, instead, that Hackenberg and Novak demonstrated
displeasure with Moyer for participating in Lee's hearing and
that Hackenberg directly threatened Moyer with discharge.
2. Moyer's October 5 "unavailability"
On October 5, 1988, Moyer accompanied Lee to his State-level
grievance hearing in Columbus, Ohio. During his attendance,
Yellow telephoned his residence to dispatch him and, finding him
unavailable, issued him a warning letter. Later that day, after
returning from the hearing, Moyer was dispatched to Chicago,
Illinois. Yellow represents that it relied in part on this
unavailability in discharging Moyer for his overall work record.
T. 1/26/93 at 282-283 (Hackenberg).
Moyer testified that Union Representative Shreve secured
Hackenberg's and Novak's permission for him to attend the
hearing. Hackenberg denied authorizing Moyer's absence but
testified that he "expected" Moyer to attend. T. 1/26/93 at
241-244, 281-282. According to Hackenberg, Moyer could have
avoided receiving the warning letter. Hackenberg testified:
"If [a driver] needs more time off than what the [work rule]
provision allows, then he would ask the line haul coordinator on
duty at the time, if myself and my assistant were not there, for
extra time." T. 1/26/93 at 240-241. Moyer testified, however,
that Yellow's dispatch refused to drop him from the board when he
requested time off to attend the hearing. T. 1/26/93 at 354-355.
In light of Hackenberg's and Novak's behavior on September 28,
1988, the October 5 warning appears contrived. Indeed,
disciplining an employee for not being available for work at a
time when the employer knows that the employee is participating
in a hearing relating to motor vehicle safety is a separate
violation of the STAA.
3. Moyer's overall work record[PAGE 12]
Apart from his October 5, 1988, unavailability, the
following comprised Moyer's nine-month work record: (a) On
July 3 and 23, 1988, and on August 31, 1988, Moyer was not
available when Yellow telephoned his residence to dispatch him;
(b) On Saturday, July 30, 1988, Moyer called in sick on a
weekend; (c) On February 29, 1988, after his truck broke down,
Moyer aggravated a pre-existing injury necessitating his return
to the terminal and subsequent hospitalization. He received a
four-day suspension for abandoning his equipment at roadside.
His suspension took effect March 8-11, 1988.
Yellow concedes that it never has discharged a driver for
receiving four warning letters for unavailability and calling in
sick on a weekend. T. 5/18/89 at 117-119 (Hackenberg). For
abandoning his equipment in late February 1988, Moyer received a
suspension which he served in early March. Despite Novak's
testimony that the transgression is a "dischargeable offense,"
T. 1/26/93 at 330, Yellow decided to impose suspension rather
than discharge. I find that it is not credible that an eight
month-old infraction for which an employee already has been
disciplined formed the basis for discharge, particularly where
there was no current infraction precipitating the discharge
action.
In this connection, reference to Moyer's Absentee Calendar,
Resp. Exh. 26, is helpful. It shows that Moyer left work early
(LE) on February 29, 1988, the date of his hospitalization. On
the sick board during March and April while he underwent and
recovered from surgery, Moyer returned to work on April 25. He
took his annual three-week vacation in June, had two weeks of
sick board time in July and August, and received three
unavailability letters during those months. With the exception
of the October 5 unavailability when he attended Lee's hearing in
Columbus, Ohio, the months of September and October are clear of
notation. Lee's company-level grievance hearing took place on
September 28. The letter advising Moyer of a hearing to review
his overall work record is dated October 18. In short, in the
absence of other precipitating events, I find that Moyer's
involvement with Lee's grievance motivated Yellow's decision to
review Moyer's overall work record at that particular time. Upon
consideration of all factors discussed above, I find Yellow's
proffered legitimate, nondiscriminatory reason for discharging
Moyer to be pretextual.
Order
Respondent Yellow Freight System, Inc. is ordered to
offer Complainant Thomas Moyer reinstatement, 49 U.S.C. app.
§ 2305(c)(2)(B)(ii), and this case is remanded to the ALJ
for determination as to appropriate additional relief.
SO ORDERED.
Robert B. Reich
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] Cf. Donovan v. R.D. Andersen Const. Co.,
Inc., 552 F. Supp. 249, 251-253 (D. Kan. 1982) (employee's
communication to the media protected because it could result in
institution of Occupational Safety and Health Administration
proceedings).
[2] A heightened necessity for unrestricted channels of
information exists in the surface transportation industry.
Random inspections at various points throughout the United States
uniformly had revealed widespread safety violations, and the
Supreme Court found that STAA Section 405 was enacted
specifically so that employees would report violations. Brock
v. Roadway Express, Inc., 481 U.S. 252, 262 (1987).
Section 405 was enacted . . . to encourage employee
reporting of noncompliance with safety regulations
governing commercial motor vehicles. Congress
recognized that employees in the transportation
industry are often best able to detect safety
violations and yet, because they may be threatened with
discharge for cooperating with enforcement agencies,
they need express protection against retaliation for
reporting these violations.
Id. at 258.
[3] Compare, e.g., the employee protection
provision of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 815(c) (1988), which addresses complaints,
proceedings, and testimony offered in proceedings "under or
related to this chapter . . ." (Emphasis added). This
language has been held to protect an employee who refused to
agree to relate a questionable version of events, as directed by
her employer, but whom Federal inspectors never interviewed.
Donovan v. Stafford Const. Co., 732 F.2d 954, 958-960
(D.C. Cir. 1984). Protection also extended to a mine foreman who
complained to his employer and a state agency that the reporting
structure in effect at the mine created an unsafe condition and
violated state law. The foreman's conflict with management over
the reporting structure was found to be safety-related.
Secretary of Labor ex rel. Joseph Gabossi v. Western Fuels-
Utah, Inc., 10 FMSHRC 953, 1988 O.S.H. Dec. (CCH) par. 28,281
(1988). The employee protection provision of the Occupational
Safety and Health Act of 1970, 29 U.S.C.
§ 660(c)(1988), similarly contains the "under or related to
this chapter" language. SeeDonovan v. Diplomat
Envelope Corp., 587 F. Supp. 1417, 1424-1425 (E.D.N.Y. 1984),
aff'dmem., 760 F.2d 253 (2d Cir. 1985);
Marshall v. Springville Poultry Farm, Inc., 445 F. Supp. 2
(M.D. Pa. 1977).
[4] See Hearing Transcript (T.) 1/26/93 at 340-341.
[5] A driver claiming fatigue is marked unavailable for
dispatch and thereafter is subject to discharge for similar
claims.
T. 1/26/93 at 44-47.
[6] For example, drivers on Yellow's sick board continually are
subject to receiving 72-hour letters. To avoid discharge, these
drivers must produce a physician's written verification of
illness within 72 hours of receiving Yellow's request. Moyer
testified that the time limitation was very difficult to meet,
especially if the letter was received on a weekend. T. 1/26/93
at 30-31.
[7] According to Yellow, the true purpose of the proceeding was
not to determine whether Lee should return to work, but rather to
determine whether he should remain on the sick board or be
discharged.
[8] These managers similarly had participated in Lee's
September 28 and October 5 hearings.
