DATE: December 20, 1989
CASE NO. 89-STA-8

IN THE MATTER OF

STEVEN LEBLANC,
   COMPLAINANT,

   v.

FOGLEMAN TRUCK LINES, INC.,
   RESPONDENT.

BEFORE:   THE SECRETARY OF LABOR

   Before me for review is the [Recommended] Decision and Order (R.D. and O.) issued August 28, 1989, by Administrative Law Judge (ALJ) Richard D. Mills in the captioned case, which arises under the employee protection provision of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1982).

   The Complainant in this case is proceeding pro se, claiming protection under STAA Section 2305(b). Respondent, which similarly was not represented by counsel, contends that it took adverse employment action against Complainant for a legitimate business reason. Section 2305(b) of the STAA prohibits discriminatory treatment of employees in either of two "work refusal" circumstances.¹ First, an employee may not be disciplined for refusing to operate a commercial motor vehicle "when such operation constitutes a violation of any Federal rules, regulations, standards, or orders applicable to commercial motor vehicle safety or health . . . ." Second, discipline is prohibited for refusing to operate a vehicle "because of the employee's reasonable apprehension of serious injury to himself or the public due to the unsafe condition of such equipment." This second "reasonable apprehension" ground for refusal carries the further requirement found in the second sentence of the subsection that the unsafe condition "causing the employee's apprehension of injury" must be such that a reasonable person, under the circumstances, would perceive a bona fide hazard. Finally, Section 2305(b) stipulates that the employee must have sought from his employer, and have been unable to obtain, correction of the unsafe condition. These second and third sentences of Section

2305(b) expressly have been held To limit only the second ground for refusal, i.e., the "reasonable apprehension" ground contained in the "because" clause of the first sentence.² Duff Truck Line. Inc. v. Brock, No. 87-3324 (6th Cir. 1988) (LEXIS, Genfed library, Court of Appeals file), aff'g Robinson v. Duff Truck Line. Inc., No. 86-STA-3, Final Decision and Order issued March 6, 1987.

   Complainant, an over-the-road driver, charges that Respondent unlawfully discharged him because he refused to begin an assigned run from Louisiana to the hilly portions of Alabama without the inoperable parking brake on his tractor first being repaired. Complainant harbored dual concerns: (1) that he would be in violation of a Department of Transportation regulation set forth at 49 C.F.R. § 392.7 (1988) by operating the tractor when the parking (hand) brake was inoperable,³ and (2) that an inoperable parking brake would pose the threat of serious injury to himself and the public were he to drive to Alabama for purposes of making a freight pickup.

   The ALJ denied Complainant's claim because, in his view, Complainant failed to prove that he had sought from Respondent, and had been unable to obtain, correction of the unsafe condition prompting his work refusal, thus failing to satisfy this component of STAA Section 2305(b). As discussed above, however, the third sentence of Section 230S(b) which contains this component does not limit protection under the first "Federal violation" ground for refusal, i.e., the "when" clause. Consequently, the ALJ erred in presuming such a limitation. Moreover, based on a thorough review of the record, I conclude that the ALJ's key factual finding in reaching his result is not supported by substantial evidence, and I do not accept it. 29 C.F.R. § 1978.109(c)(3) (1988). Accordingly, even in invoking the second "reasonable apprehension" ground, i.e., the "because" clause, Complainant is protected. For the reasons set forth below, I find that Complainant has established that Respondent violated the STAA.

   Complainant, Steven LeBlanc, was employed by Respondent, Fogelman Truck Lines, Inc., as a driver of commercial motor vehicles from mid-November, 1987, until his discharge on February 29, 1988. Respondent maintains offices in Crowley, DeRidder, Opelousas, Pineville, and Shreveport, Louisiana, as well as operating terminals in Crowley, DeRidder, and Pineville, Louisiana. Hearing Exhibit (Exh.) CX-8. LeBlanc, whose "home terminal" was in Crowley, was subject to being assigned trips within a five-state area including East and Central Texas, Louisiana, Mississippi, Southern Alabama, Georgia, and Florida. Hearing Transcript (T.) 44. Between February 1 and February 27, 1~88, LeBlanc completed trips either originating in or concluding at Longview, Dallas, Houston, Freeport, and Cresson, Texas; Lake Charles, DeRidder, Crowley, Lafayette, Pineville, Shreveport, and Slidell, Louisiana; and Gulfport and Natchez, Mississippi. Exh.8-B.

   It is uncontroverted that while en route making pickups and deliveries, Respondent's over-the-road drivers experienced difficulty telephoning dispatch for work assignments, and telephoning Respondent's safety and maintenance departments, often encountering "busy signals" and recorded messages. T. 2021, 24, 33, 96. This difficulty is explained by the fact that Respondent operates a fleet of approximately 110 trucks, T. 4243, the drivers of which have available only one Watts telephone number, depending on

   On February I2, 1988, after unloading freight in Gulfport, Mississippi, LeBlanc attempted unsuccessfully to contact his dispatcher, Robert Marks, for further assignment. At fine point, LeBlanc called from a pay telephone at the side of a two-lane "highway that [he] used to . . . make the run in Mississippi." T. 95. When a Department of Transportation official instructed him that he would be ticketed and towed if he remained at roadside, LeBlanc began driving toward Hammond, Louisiana, where he finally succeeded in reaching dispatch.⁴ LeBlanc testified: "In Hammond I got a hold of the dispatcher at 12:00 noon. He then instructed me to wait an hour, which I did, I went on my lunch break. After an hour I tried calling for another hour and I couldn't get a hold of him." T. 96. LeBlanc then returned to his home terminal in Crowley, Louisiana, a drive of approximately three hours. Exh. 8-B. LeBlanc's daily log suggests that during the drive back to Crowley he stopped on two occasions in order to make telephone calls, presumably to contact the dispatcher. Id.⁵ On Monday, February 15, Dispatcher Marks advised LeBlanc that he had had no further assignments for him on the afternoon of February 12. Respondent's management advised LeBlanc that he had violated company policy by "deadheading" to Crowley without the dispatcher's permission. T. 52-53, 97, 105.

   Between Monday, February 15 and Friday, February 19, LeBlanc worked steadily for Respondent without incident. Off-duty Saturday, February 20, he reported for work the afternoon of Sunday, February 21, making pickups and deliveries in Louisiana and Texas during the following week. LeBlanc's driver's log for Thursday, February 25, 1988, notes a truck repair in Crowley, Louisiana, at 12:00 noon, after which he reported off-duty for four hours. At 4:00 p.m., he fueled his truck and drove to Lafayette. The log then documents a "truck break down." LeBlanc logged time in the sleeper berth until 7:00 a.m. on Friday, February 26, when he conducted a pre-trip inspection (PTI) of his vehicle and drove to Baton Rouge, Hammond, Covington, and Slidell, Louisiana, making pickups and deliveries.

   The hearing testimony shows that at some point on February 26, LeBlanc was assigned to drive from Slidell, Louisiana, where he was delivering freight, to Jackson, Alabama, in order to pick up freight. T. 26, 97. Prior to departing Slidell, LeBlanc discovered that the hand or parking brake on the tractor was inoperable, although the foot pedal brakes were functioning.⁶ Concerned about "complet[ing] a run to Alabama with bad hills and everything, in an area which [he] was not familiar with, and an area that the truck would not have been able to make" without being cited by DOT, T.97, LeBlanc attempted unsuccessfully to telephone Respondent. LeBlanc testified that despite numerous attempts, he was unable to reach any of Respondent's dispatch, safety, or maintenance personnel from late morning on Friday, February 26, until he ceased telephoning at approximately 9:00 p.m. that evening. T. 101-104. LeBlanc finally drove

the truck to Respondent's terminal and shop in Crowley, arriving just as the shop was opening at 8:00 a.m. Saturday morning, for purposes of having the parking brake repaired.⁷

   The burdens of proof and production adopted for use in STAA proceedings are set forth in McGavock v. Elbar. Inc., No. 86-STA-5, Final Decision and Order issued July 9, 1986, slip op. at 10-11.⁸ 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. A complainant also must present evidence sufficient to raise the inference that the protected activity was the likely reason for 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. The complainant then must establish that the reason proffered by the employer is not the true reason for the adverse action.

   As discussed supra, in order for LeBlanc to gain protection under STAA Section 2305(b), his refusal must have been grounded on either commission of a Federal violation (the "when" clause) or reasonable apprehension of a hazard (the "because" clause). Federal DOT regulation § 392.7 of Title 49 directs that drivers of commercial motor vehicles must satisfy themselves that, among other equipment, the vehicle's parking (hand) brake is in good working order. It prohibits drivers from failing "to use or make use of [such brakes] when and as needed." In returning to the Crowley terminal rather than departing Slidell for Jackson, Alabama, LeBlanc was refusing to undertake a trip assignment in order first to have the parking brake repaired. If undertaken, the trip to Jackson almost certainly would have required use of the brake,⁹ and LeBlanc would have been in violation of the regulation if he had failed to use the brake because it was inoperable. Accordingly, LeBlanc's refusal to depart for Jackson was protected activity under the "when" clause of Section 2305(b). In reaching this result I find that the parking brake on the tractor was inoperable. LeBlanc testified that when engaged the brake permitted the tractor to roll or move, and that had it been functioning properly the tractor would have shaken, but would not have moved. See n.6, supra. Moreover, LeBlanc recorded a brake defect on the tractor when he completed his February 27 Driver's Vehicle Inspection Report. Exh. 8-B. I note that Respondent has not presented evidence to controvert LeBlanc's description of the condition.¹⁰

   In driving the tractor from Slidell to Crowley, LeBlanc appears to have been in violation of 49 C.F.R. §§ 393.40(b)(1)(ii) and 393.41 which require motor vehicles to be equipped with an adequate parking brake system "at all times," and 49 C.F.R. § 392.7 which states that "[n]o motor vehicle shall be driven" unless the driver is satisfied that the parking brake is in "good working order." Respondent's position is that LeBlanc should have remained in Slidell for whatever period of time it took him to contact the mechanics in the maintenance department who would "decide whether the problem that's existing -- that the truck can roll or if it's to be shut down, or if the repairs need to

   More importantly, however, the ALJ's assessment of the list of telephone numbers, Exh. CX-8, p. 30, is mistaken. At any given time, LeBlanc had few telephone numbers available. At his various locations in Louisiana during "office hours," i.e., from 7:00 a.m. to 6:00 p.m. on Friday, February 26, LeBlanc had available only two Watts lines for purposes of calling long distance without charge to him.¹¹ Those lines served dispatch, the safety and maintenance departments in Crowley, and Respondent generally. Exh. CX-8, pp. 28, 30. After normal office hours, ice., after 6:00 p.m. on Friday, LeBlanc, being in Lafayette, had available only the Louisiana Watts number through which he could reach Respondent's emergency mechanic, whom LeBlanc attempted to contact. Telephone numbers for two of Respondent's safety representatives are listed with the notation to "call collect," one of whom LeBlanc apparently attempted to reach. LeBlanc then logged time in the sleeper berth, conducted a PTI between 6:00 a.m. and 6:30 a.m. the following morning, Saturday, February 27, and drove from Lafayette to Crowley, arriving at 8:00 a.m., the beginning of Saturday "office hours," see id. at 30, at which time he succeeded in communicating the necessity for repairing the ineffective parking brake.¹²

   During normal office hours on Friday afternoon when he had access to two Watts lines, LeBlanc was driving between the Southeastern Louisiana towns of Hammond, Covington, and Slidell before heading for Crowley. By the time that Respondent's office hours were over and it was appropriate to telephone other numbers, LeBlanc had arrived in Lafayette, Louisiana. Lafayette and Crowley are located in South central Louisiana.

   Unable to contact dispatch, LeBlanc had available few alternatives. Although on one occasion he telephoned from a "76 Truck Stop" in Slidell which was equipped with a service bay, LeBlanc had no way of paying for any repairs that might have been performed there. T. 67-68, 126-127. Moreover, while trained to adjust trailer brakes, he was neither trained nor equipped to repair the brakes on the tractor. T. 124-125; Exh. CX-8, p. 35 (Company Policies). LeBlanc testified: "I was driving to the closest, nearest place where -- I had looked through what the DOT said -- the handbook, and it stated to the nearest place of repair, which would have been [m]y home terminal in Crowley." T. 100.¹³ It is fair to conclude that repair would

involve the use of shop facilities, thereby possibly requiring a return to one of Respondent's terminals. I find that LeBlanc made sufficient effort to communicate to Respondent by telephone the necessity for returning his vehicle for repair, and was unsuccessful through no fault of his own.¹⁴ To hold otherwise would be to defeat protection under Section 2305(b) in cases where a respondent effectively discourages communication of safety concerns through its inaccessibility. Although after discovering that Respondent's emergency mechanic was not at home when he telephoned from Lafayette on Friday evening, LeBlanc returned to Crowley early Saturday morning without attempting further contact by telephone; I do not view this omission as diminishing his efforts to contact Respondent. LeBlanc likely considered further telephoning futile, deciding instead to arrive at the terminal among with the shop mechanics at the start of business on Saturday morning.

   Respondent does not dispute that it discharged LeBlanc because he returned to Crowley without permission instead of making the scheduled pickup in Jackson. Accordingly, LeBlanc has met the remaining criteria for a prima facie showing, and Respondent has failed to articulate a legitimate, nondiscriminatory reason¹⁵ for its action.

   Respondent is ordered to offer Complainant reinstatement, 49 U.S.C. § 2305(c)(2)(B)(ii), and this case IS REMANDED to the ALJ for determination as to other appropriate relief.

SO ORDERED.

         Elizabeth Dole
         Secretary of Labor

Washington, D.C.

¹Section 2305(b) provides:

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 or health, or because of the employee's reasonable apprehension of serious injury to himself or the public due to the unsafe condition of such equipment. The unsafe conditions causing the employee's apprehension of injury must be of such nature that a reasonable person, under the circumstances then confronting the employee, would conclude that there is a bona fide danger of an accident, injury, or serious impairment of health, resulting from the unsafe condition. In order to qualify for protection under this subsection, the employee must have sought from his employer, and have been unable to obtain, correction of the unsafe condition.

²The language of the third sentence ties protection to an attempt to obtain correction of the unsafe condition referenced in the "because" clause and the second sentence.

³That regulation provides: "No motor vehicle shall be driven unless the driver thereof shall have satisfied himself that the following parts and accessories are in good working order, nor shall any driver fail to use or make use of such parts and accessories when and as needed: . . . Parking (hand) brake." A defective parking brake additionally would appear to violate requirements under 49 C.F.R. § 392.20 and Part 393, Subpart C-Brakes.

⁴LeBlanc stopped to telephone between Gulfport and Hammond. T. 95. In one location he reached a recording but was unable to "get through" to the dispatcher. T. 96.

⁵LeBlanc's Driver's Log, Exh. 8-B, shows time spent "off duty," in the "sleeper berth," "driving," and "on duty (not driving)." In a portion of the log entitled "remarks," LeBlanc noted the location; time spent in particular activities, e.g., pretrip inspection ("P.T.I."), loading and unloading; and shipping information. In addition, the notation "T.C." appears during or at the conclusion of segments spent in "driving" status. Stops of less than ten minutes duration are recorded as "driving time," while stops in excess of ten minutes are recorded as "on duty (not driving)." Exh. CX-8, p. 33 (Instruction to driver Steven J. LeBlanc regarding Driver's Daily Log). "T.C.. apparently represents a telephone call made during-a break from driving of less than ten minutes. LeBlanc's testimony, T. 23, 95-96, that he stopped to telephone between Gulfport and Hammond and the corresponding "T.C." notation on his February 12, log supports this construction.

⁶LeBlanc's vehicle inspection reports, Exh. 8-B, show detection of mechanical safety deficiencies on the tractor on February 25, 26, and 27, including oil leaks, seal leaks, and defective brakes. LeBlanc believed that the parking brake required repair because the tractor would "roll" when the brake was engaged. "If the brakes were operable [the vehicle] would shake, it wouldn't go nowhere." T. 123.

⁷LeBlanc's log shows that he departed Slidell at 3:00 p.m. on February 26, and drove three and one-half hours to Lafayette where he reported off-duty between 6:30 p.m. and 7:30 p.m. on a dinner break. Thereafter, LeBlanc was logged in the sleeper berth. After conducting a PTI, LeBlanc departed Lafayette at 7:00 a.m. on Saturday, February 27, and drove for a period of one hour, reaching Respondent's terminal in Crowley at 8:00 a.m.

⁸These 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 (llth Cir. 1987).

⁹Under 49 C.F.R. § 392.20, "[n]o motor vehicle shall be left unattended until the parking brake has been securely set and all reasonable precautions have been taken to prevent the movement of such vehicle." Additionally, 49 C.F.R. § 393.41(a) provides: Every singly driven motor vehicle and every combination of motor vehicles shall at all times be equipped with a parking brake system adequate to hold the vehicle or combination on any grade on which it is operated under any condition of loading on a surface free from ice or snow."

¹⁰Respondent's evidence bearing on this point includes a preventative maintenance record for the tractor. Dated March 2, 1988, it indicates that although the brake system was not inspected (item no. 4), work was done on the "brake lines/drums"(item no. 25). It lists several major unit repairs including "change brake shoes and seal." Exh. D-13. See T. 97. Respondent also submitted a record for the tractor dated February 27 and signed by LeBlanc that bears the notation "oil leak [and] seal leak bring to yard." Exh. D-4.

¹¹As the ALJ recognized, R.D. and O. at 2, Respondent's telephone list bears the note: "The solution to almost any problem is proper communication. Since it will never cost you a dime to call, please keep in touch with your dispatcher and Safety and Maintenance Departments." Exh. CX-8, p. 30. In addition, of the nonWatts telephone numbers for after hours contact, two bear the notation "call collect." Id. These considerations, coupled with the fact that Watts numbers were provided, suggests that Respondent did not require or expect drivers to incur personal long distance telephone charges. Respondent has not presented evidence to the contrary.

¹²Upon returning the truck, LeBlanc submitted a February 27 driver's vehicle inspection report, Exh. 8-B, which documents the deficiency.

¹³In terms of direct distance from Slidell, Crowley is closer than either of Respondent's other terminals located in Pineville and DeRidder.

¹⁴Of course, upon his return to Crowley, Complainant succeeded in seeking correction of the condition.

¹⁵The record does not show that Respondent discharged LeBlanc for violating DOT regulations. Respondent was concerned that LeBlanc had returned "to the yard without permission . . . when he was dispatched to pick up [a] load in Jackson, Al[abama]." Exh. D-5 (Separation Notice). As the result of LeBlanc's failure to arrive in Alabama, Respondent "lost" that particular dispatch. T. 48.