Boone v. TFE, Inc., 90-STA-7 (Sec'y July 17, 1991)

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Boone v. TFE, Inc., 90-STA-7 (Sec'y July 17, 1991)

U.S. DEPARTMENT OF LABOR

SECRETARY OF LABOR
WASHINGTON, D.C.

DATE:July 17, 1991
CASE NO. 90-STA-7

IN THE MATTER OF

JAMES T. BOONE, JR.,
COMPLAINANT,

TEE, INC.,
RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

FINAL DECISION AND ORDER

Before me for review is the Recommended Decision and Order (R.D. and O.) issued March 28, 1991, by the Administrative Law Judge (ALJ) in this case, under the employee protection provision of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1988). The ALJ found that Complainant was terminated by Respondent for engaging in protected activity and awarded relief. On review, Respondent argues that Complainant's refusal to take a dispatch as ordered was not activity protected under the STAA. Because I agree with the ALJ that Respondent's dispatch order required the violation of Department of Transportation (DOT) driving time regulations by Complainant's driving team, and that Complainant's refusal of the order was accordingly protected, the recommendation to award relief shall be accepted.

The employee protection provision of the STAA 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" [the "when" clause] 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 "because" clause]. 49 U.S.C. app. § 2305(b).

The ALJ found that at the time Complainant was dispatched, Respondent knew or should have known that Complainant and his driving partner could not have

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arrived at their destination in Cincinnati at the required arrival time of 8:00 a.m. the next morning by driving legally.¹ The ALJ further found that at the time of dispatch Complainant and his driving partner were expected by Respondent to arrive in Cincinnati by 8:00 a.m. even if doing so violated the DOT driving time and driver fatigue rules. 49 C.F.R. §§ 392.3, 395.3 (1990). Because the dispatch necessarily contemplated the violation of both of these federal regulations, and was therefore illegal, the ALJ held that Respondent violated the "when" clause of Section 405(b) when it terminated Complainant for refusing to drive an illegal dispatch. R.D. and O. at 25. In addition, the ALJ found Complainant's refusal protected under the "because" clause since Complainant could reasonably apprehend serious injury to himself or the public due to the unsafe condition of his equipment resulting from the expected fatigue of his driving partner when he exhausted available driving hours and would be required to drive illegally.²

As more fully discussed below, I agree with the ALJ's holding that Complainant's refusal was protected activity under the "when" clause of Section 405(b) on the ground that the dispatch order required Complainant's driving team to violate DOT driving time regulations, 49 U.S.C. § 395.3, by driving more hours than permitted by law. Because the record shows that the ALJ's findings of fact relative to this determination are (with only a minor qualification, see n.4 infra) supported by substantial evidence, and because his legal conclusion is sound, I find Complainant's refusal protected under the STAA on this ground. See 29 C.F.R. § 1978.109(c).

II.

I find the award of relief sustainable only on the basis of the "when" clause violation of DOT driving time regulations. This is because I agree with Respondent that the ALJ's additional determinations -- that the dispatch order also violated DOT driver fatigue rules, 49 C.F.R. § 392.3, under the "when" clause, and satisfied the requirements of the "because" clause concerning Complainant's apprehension of serious injury due to the expected fatigue of his driving partner -- are incorrect as a matter of law. A thorough review of the record indicates that, although there was much testimony as to Complainant's state of mind at the time of his refusal, which concerned his apprehension about fatigue, Transcript (T.) 776-779, 796-799, 839-841, Complainant never once mentioned fatigue to Respondent as a reason for his refusal. The employee has the burden under Section 405(b), absent unusual circumstances, to show that he communicated or attempted to communicate his safety concerns to his employer. Assistant Secretary of Labor for Occupational Safety and Health v. Cavalier Homes of Alabama Inc. Case No. 89-STA-10, Sec. Order, Nov. 16, 1990, slip. op. at 5 n.2; LeBlanc v. Fogleman Truck Lines Inc., Case No. 89-STA-8, Sec. Order, Dec. 20, 1989, slip. op. at 12-17, aff'd sub nom. Fogleman Truck Lines Inc. v. Martin, No. 90-4114 (5th Cir. Apr. 17, 1991). See also Juarez v. Ready Trucking Co., Case No. 86-STA-27, Sec. Order, July 1, 1988, slip. op. at 2-3. Having failed to communicate to Respondent that fatigue was a possible safety concern, and there being no evidence of unusual circumstances, I find that Complainant failed to establish that his refusal was protected on that basis.

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Respondent strenuously attacks the ALJ's primary conclusion that Complainant's refusal of the dispatch order was protected under the "when" clause of the STAA because the order required a violation of DOT driving time regulations. Principally, Respondent contends that the plain language of Section 405(b) protects only activity that would presently and actually constitute a violation of federal rules or regulations, not activity that might violate such rules or regulations in the future. Respondent argues that because at the time of dispatch Complainant and his driving partner had driving time available, they were not at that time being ordered to violate DOT driving time regulations. Therefore, Respondent contends, it could lawfully dispatch Complainant even if there were "some question" as to the driving team's ability to complete the run legally.

Under the facts here these arguments must be rejected. The plain language of Section 405(b) prohibiting discrimination against an employee who refuses to operate a motor vehicle "when such operation constitutes a violation of any Federal rules [or] regulations," 49 U.S.C. app. § 2305(b), need not be read so narrowly as Respondent suggests. The operation of the vehicle may "constitute" a violation either presently or, as under the facts here, over time prospectively where it is inevitable that a violation must occur. There is simply no requirement in the plain language of this provision that the driver's operation of the vehicle must immediately violate a federal rule or regulation, and I decline to so construe it.

Section 405(b) must be interpreted consistent with Congressional intent, namely, the promotion of commercial motor vehicle safety on the nation's highways. See Brock v. Roadway Express. Inc., 481 U.S. 252, 258, 262 (1987). The legislative debate reflects the sponsors' intent that: "the employee protection provisions are vital to insure that employees will not be harassed for not being willing to perpetuate safety violations," 128 Cong. Rec. 32,510 (1982) (statement of Sen. Danforth); "drivers will be given the protection to refuse to violate the law," id. at 32,698 (statement of Sen. Percy, original sponsor of the provision); and "[i]n providing protection of employees in section 409 [enacted as § 405], it is intended to assure that employees are not forced to drive unsafe vehicles or commit unsafe acts." Id. at 29,192 (statement of Sen. Packwood, Chrm. of Committee on Commerce, in section-by-section analysis.)

Given the clear legislative concern for promoting commercial motor vehicle safety, I agree with the ALJ that Section 405(b) should not be read so narrowly that it would protect an employee who refused an order to violate motor vehicle safety regulations only if the violation exists at the time the order is given. R.D. and O. at 21. Where, as here, a violation of DOT driving time regulations, 49 C.F.R. § 395.3, is necessarily contemplated in the order, albeit at a somewhat later time, the order requires the operation of a motor vehicle contrary to federal rules and regulations, and the driver's refusal is protected under the "when" clause of the statute.³ To hold otherwise would undermine the intent of the statute to promote highway safety and permit an intolerable result. If drivers are required to accept dispatch orders that cannot possibly be completed without violating DOT driving time regulations, they will be not only encouraged, but coerced, to drive in a fatigued condition, thereby greatly exposing themselves and the general public to serious injury. I agree with the ALJ that the purpose of the statute is to shield drivers from just such

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pressure. R.D. and O. at 25. Cf. McGavock v. Elber. Inc., Case No. 86-STA-5, Sec. Order, July 9, 1986, slip. op. at 7-8 (employee's stated refusal to drive over speed limit in the future, in situation where carrier's policies required drivers to violate DOT speeding regulations, is protected activity under "when" clause of Section 405(b)).

I find unrealistic and in conflict with the statutory scheme Respondent's further suggestion that it is the driver's burden to shut down and rest only at the precise moment an actual DOT violation occurs where, as here, the pressure on the drivers to complete the delivery on time, and illegally, was clearly established. See Robinson v. Duff Truck Line. Inc., Case No. 86-STA-3, Sec. Order, Mar. 6, 1987, slip. op at 18-22, aff'd sub nom. Duff Truck Line. Inc. v. Brock, No. 87-3324 (6th Cir. June 24, 1988) (Lexis, Genfed library, Court of Appeals file). By protecting a driver at the outset from the requirement to obey a dispatch order that threatens public safety on the highway, the ALJ properly placed the burden on the carrier not to issue such orders in the first place. I agree with his determination that "[i]t is the duty of the dispatcher to offer drivers trips which as dispatched can be completed legally." R.D. and O. at 25 (emphasis in original).

Finally, Respondent argues that the run could have been completed on time and legally if the drivers had planned the trip more carefully and left earlier, or at the very least, that the run could have been completed legally, but late. Respondent contends it could have accepted a late delivery over none at all. Considering the facts of this case, these arguments are unconvincing.

Where the ALJ's findings of fact are supported by substantial evidence in the record considered as a whole, they are conclusive. 29 C.F.R. § 1978.109(c)(3). Although the testimony and evidence on the key factual issues were conflicting, the ALJ carefully weighed the evidence and made rational credibility determinations. The critical facts that he found -- (1) that Complainant refused Respondent's dispatch order no earlier than 12:30 p.m. on Sunday, November 6, 1988, R.D. and O. at 22; (2) that Complainant's driving team could not have arrived on time in Cincinnati without violating DOT driving time rules, R.D and O. at 23;⁴ ( 3) and that Respondent expected Complainant and his driving partner to arrive in Cincinnati by 8:00 a.m. on November 7, even if doing so required violating DOT driving time rules, R.D. and O. at 25 -- are substantially supported in the record. These facts foreclose Respondent's post hoc contention that the driving run could have begun earlier or that Respondent would have accepted a late and legally driven delivery.

III.

For all of the foregoing reasons, the recommendation to award relief in the manner provided in the ALJ's R.D. and O. at 28 is accepted.

SO ORDERED.

Lynn Martin
Secretary of Labor

Washington, D.C.

[ENDNOTES]

¹The ALJ found Complainant had 1 1/2 driving hours and his partner 10 driving hours available at the beginning of a trip that was stipulated to require 13 1/2 hours and with the earliest possible departure time established as 12:45 p.m. on Sunday. R.D. and O. at 21-23 and n.7. Had they driven those 11 1/2 hours and the partner resumed driving at 6:45 a.m. Monday morning following a mandatory 8-hour rest break, at best they would have arrived in Cincinnati 45 minutes late. But see note 4 infra.

²The ALJ also rejected Respondent's contention below that Complainant failed to mitigate his damages when he assumed the family yard cleaning business after failing to find work in the trucking industry. Respondent has not contested this issue before me.

³The holding in Brothers v. Liquid Transporters. Inc., Case No. 89-STA-0001, Sec. Order, Feb. 27, 1990, that a driver without available driving hours may be ordered to begin a run by resting in the sleeper berth while his partner drives, is distinguishable. The Brothers complainant was "instructed . . . to begin a rest break and not to operate a commercial motor vehicle." Slip op. at 5. Nor did the facts in Brothers include a mandatory delivery time requiring the driving team to violate DOT driving time regulations.

⁴In calculating driving time to Cincinnati, R.D. and O. at 2223, the ALJ credited Complainant with one-half hour of driving time before midnight and one hour after midnight. Although Joint Exhibit 3 might permit this interpretation, Complainant's own testimony, T. 786, and his monthly driver summary, Complainant's Exhibit 32, shows that Complainant had one-half hour available on Sunday, November 6, and picked up another one-half hour at midnight. Thus, he would have a total of one hour on Monday only if he did not use the one-half hour available on Sunday. Complainant's actual available driving time total was only one hour, making the earliest arrival time in Cincinnati 9:15 a.m., rather than 8:45 a.m., as found by the ALJ.