Clay v. Castle Coal and Oil Company, Inc., 90-STA-37 (Sec'y Nov. 12, 1991)

May 9, 2009

DOL Home > OALJ Home > Whistleblower Collection

USDOL/OALJ Reporter
Clay v. Castle Coal and Oil Company, Inc., 90-STA-37 (Sec'y Nov. 12, 1991)

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

DATE: November 12, 1991
CASE NO. 90-STA-37

IN THE MATTER OF

RALPH B. CLAY,
COMPLAINANT

CASTLE COAL AND OIL COMPANY, INC.,
RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

DECISION AND ORDER OF REMAND

This case arises under Section 405 of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1988). Before me for review is the [Recommenced] Decision and Order (R.D. and O.) issued on July 18, 1991, by the Administrative Law Judge (ALJ).

Respondent Castle Coal and Oil Company, Inc., employed Complainant Ralph Clay to operate commercial motor vehicles in the delivery of fuel oil. At the time of his discharge, on February 13, 1990, Complainant had worked for Respondent for eight years. Hearing Transcript (T.) 12, 78. During January and February 1990, Complainant delivered heating oil to residences, imp, one- and two-family homes, in the Borough of Manhattan, New York City. Complainant made deliveries in an area composed of "tight" streets carrying heavy traffic. Many were "one-way" streets, accommodating traffic in only one direction. The presence of parking lanes frequently required Complainant to "double park" his vehicle when making deliveries. In January 1990, Complainant was assigned to operate delivery trucks Nos. 4, 165, and 185.¹ On February 1, Complainant's assignment to truck No. 185 became permanent. T. 253. Truck No. 185 has a straight chassis with a hose mounted on a right side reel which is used in delivering residential heating oil. The truck also has a rear discharge hose. The capacity and configuration of the truck's rear hose is suitable only in making industrial and commercial deliveries.² T. 111-114, 168-171, 210-213.

[Page 2]

Complainant testified that he felt endangered when, on one-way streets, he was required to make left side deliveries with the truck No. 185 right hose reel because operation of the reel placed him in the traffic lanes and in the blind spot of any driver attempting to pull around his truck from the rear. Complainant testified:

you are going to park as close to the left hand side of the street as you can. If you double park, the hose has to be pulled out across traffic lanes and then thrown underneath the truck. . . . You would have to pull the hose out across the flow of traffic in order to get enough hose out of the truck to throw it underneath the truck so that you could pull it out from the other side.

T. 116-117. In unwinding up to 100 feet of hose required to make a delivery, Complainant would cross traffic for a distance of eight to twelve feet. T. 117; Exh. CX-6 at 2. Any single delivery might necessitate two to three excursions into traffic to free sufficient hose. Id. While bending to throw the hose underneath the truck, Complainant was unable to watch for traffic. T. 119. Complainant also was required to stand in traffic during delivery in order to operate the controls and to shut off the flow at the appropriate interval. T. 130. Finally, because automatic rewind of the hose required Complainant's complete attention to ensure uniform placement, Complainant was unable to watch the traffic during this procedure. T. 123-124.

Complainant testified that, during January 1990, he complained orally to Anthony Feda, Respondent's senior vice president of operations, about the unsafe work practices.³ T. 131-133, 153-155. On three occasions, Complainant objected that he "spent too much time out in traffic" when making left side deliveries on one-way streets. Although Mr. Feda responded that he would attempt to correct the situation by assigning Complainant another truck, T. 132, 185-186, Respondent took no action on Complainant's complaint. T. 133. On February 1, Complainant complained in writing on his Driver's Daily Report. Exh. CX-5. His February 3 report bore the notation:

I have been told that there may be a law about making del[iveries] on the traffic side of these trucks. If there is [and] Castle knew about the law I have to feel that this is a callous disregard for the safety of their employees. . . . I will send letters to OSHA and the DOT to verify the above.

Id.⁴ Vice President Feda testified that he knew about Complainant's written complaints upon submission of the daily reports and that he "did nothing" in response. T. 266-268, 271.

In his February 7 daily report, Complainant complained about truck fumes and physical symptoms that he was experiencing, including chest pains. Complainant also stated in the report that he no longer intended to make left side deliveries from right reel trucks and that he believed this practice to be "very dangerous." Exh. CX-5. Complainant explained: "I figured my luck was running out. I was going to get hurt sooner or later." T. 159. On February 8, Mr. Feda sent Complainant to the company doctor for an examination. T. 275-279. On February 9, while operating truck No. 185, Complainant declined to make two left side residential deliveries on one-way streets. Mr. Feda suspended Complainant on February 9 and terminated him on February 13.

[Page 3]

Complainant charges that he was discharged in violation of STAA Section 2305(a) and (b) for filing safety complaints and refusing to operate his vehicle in unsafe conditions. The ALJ has recommended that Complainant's claim be denied because (1) he failed, under Section 2305(a), to show a causal connection between his protected safety complaints and his discharge, and (2) he failed, under Section 2305(b), to meet the "reasonable person" standard. Upon consideration of the record before the ALJ and the parties' briefs before me, I decline to adopt the ALJ's recommendation.

ANALYSIS

Under the burdens of proof and production in "whistleblower" proceedings, Complainant first must make a prima facie showing that protected activity motivated Respondent's decision to take adverse employment action. Respondent may rebut this showing by producing evidence that the adverse action was motivated by a legitimate, nondiscriminatory reason. Complainant then must establish that the reason proffered by Respondent is not the true reason. Roadway Exp.. Inc. v. Brock, 830 F.2d 179, 181 n.6 (llth Cir. 1987).

In order to establish a prima facie case, Complainant must show that he engaged in protected activity, that he was subjected to adverse action, and that Respondent was aware of the protected activity when it took the adverse action. Complainant also must present evidence sufficient to raise the inference that the protected activity was the likely reason for the adverse action.⁵ Under the STAA, an employee is protected if he "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 . . . ." 49 U.S.C. app. § 2305(a). An employee also is protected if he refuses to operate a vehicle "because of" his "reasonable apprehension of serious injury to himself or the public due to the unsafe condition of [the] equipment." 49 U.S.C. app. § 2305(b) ("because" clause). Protection here requires that the unsafe condition would cause "a reasonable person under the circumstances then confronting the employee [to] conclude that there is a bona fide danger" of accident or injury. In addition, the employee must unsuccessfully have sought correction of the condition from the employer.

Complainant made a prima facie showing of retaliatory conduct by Respondent. First, the record shows that Complainant engaged in several protected activities. A complaint or charge concerning safety communicated to management, OSHA, or DOT is protected under the STAA. Thus, Complainant was protected in complaining to management about truck fumes, about truck safety defects, and about using a right reel truck to make left side deliveries on one-way street". Complainant also was protected in stating his intention to contact OSHA and DOT regarding unsafe working conditions, in filing complaints with these regulatory agencies, and in stating his intention not to work in "dangerous" conditions.

In addition, Complainant was protected in declining to make the two left side deliveries in the particular circumstances presented by this case. At bottom, protection under the "because" clause of Section § 2305 (by requires (1) reasonable apprehension of serious injury due to an unsafe condition, and (2) attempted correction of the unsafe condition.⁶ No real dispute exists

[Page 4]

that Complainant communicated his safety concerns to Respondent, thus meeting the latter criterion. Rather, contention centers on the former criterion -- Complainant's reasonable apprehension of serious injury due to an unsafe condition, which "must be of such nature that a reasonable person, under the circumstances then confronting [Complainant] would conclude that there is a bona fide danger of an accident [or] injury . . . ."

Here, Complainant declined to make deliveries on Friday, February 9, 1990, in the Borough of Manhattan at 10 West 131st Street at 7:50 a.m. and at 564 West 189th Street at 9:50 a.m. Exh. CX-5. Complainant testified that the streets were double parked on the left side, that traffic in that section of Manhattan was heavy at that time on weekday mornings, and that West 189th Street was particularly narrow, affording little space for automobiles to pass. T. 187-190. An experienced fuel oil delivery driver, Complainant was knowledgeable about driving practices in the area. He testified that on an occasion when he had attempted to leave the truck controls so as not to stand in traffic during delivery, he had been "in a panic because [he] couldn't shut the controls off because of the volume of traffic. . . past the truck. They just wouldn't stop, period." T. 132. He also testified: "New York drivers . . . do not have courtesy or anything . . . . [Y]ou are not going to . . . walk out there and challenge any of these people because they are going to run you over."⁷ T. 131-132. After assessing each location in issue, Complainant determined that making a left side delivery posed a hazard. In consideration of the circumstances confronting Complainant at the time that he refused these two deliveries, I find that a reasonable person would have perceived a bona fide danger and that Complainant possessed a reasonable apprehension of serious injury.⁸

It is undisputed that Complainant was subjected to adverse actions in this case, i.e., suspension and discharge, and thus the second aspect of a prima facie showing is met.

Finally, causation is shown. The adverse actions closely followed the protected activities. See Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989); Mitchell v. Baldriae, 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 (lOth 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).

Respondent defends by positing Complainant's "unprotected" work refusal as its sole motivation for taking adverse action. As discussed above, I have found Complainant's refusal to be protected. I also reject Respondent's theory of motivation and find that Respondent discharged Complainant because of his persistence in complaining internally and his resolve to contact OSHA and DOT. I am persuaded in this regard by Respondent's deviation from usual procedures in dealing with Complainant, by Respondent's inaction on Complainant's left side delivery complaint, and by Respondent's position at arbitration.

Respondent had addressed Complainant's previous safety complaints. See, e.g., T. 14-15, 18-19, 81, 177-178, 247, 250253 (measures taken on fume complaint). In contrast, Vice President Feda's single response to the left side delivery complaint consisted of a discussion with Fleet Manager Francese, in which they decided that the complaint was unfounded. Messrs. Feda and Francese are not experienced fuel oil delivery

[Page 5]

drivers. T. 318-320. Mr. Feda did not communicate their determination to Complainant. T. 322-323.

Respondent's daily driver's reports document frequent missed deliveries by fuel oil drivers. Exh. CX-14. For example, a driver may forego delivery if it requires the removal of parked vehicles or must await the return of a building superintendent. In some instances a customer may request delivery at another time. One driver bypassed delivery upon finding a dog leashed to the oil fill receptacle. Drivers may or may not note the reason for a missed delivery on their reports. Respondent is notified of nondelivery upon submission of the daily reports. Drivers may return either later in the day or on the following day to complete delivery. T. 209. Respondent does not discipline its drivers for these missed deliveries. Had Respondent addressed Complainant's concerns, it might have considered similarly rescheduling hazardous left side deliveries for periods of reduced traffic or assigning instead a truck with a rear reel.

Complainant's oral complaints during January 1990 met with inaction. Complainant documented his complaint in his February 1, 1990, Daily Driver's Report. He escalated the complaint on February 3 by stating his intention to seek an external regulatory determination. On February 7, in the face of Respondent's continuing inaction, Complainant documented his intention to refuse work. Mr. Feda testified that he "briefly" told Complainant on February 8 that "there's no law about operating the right-side reel truck . . . and there's a lot of people doing it." T. 276. Complainant denies that they discussed left side deliveries on February 8. T. 175-176, 330. Even if Mr. Feda is correct, his bare assurance did not purport to address the safety complaint. On February 9, Complainant declined to make two deliveries in hazardous circumstances. Respondent's dispatcher apprised Mr. Feda of the missed deliveries before Complainant returned at the end of the day.

T. 279-282. Feda called Complainant into his office upon his return and suspended him "with a view to discharge." T. 284. Written confirmation was mailed that evening. T. 285; Exh. RX-2. Following the requisite Union/Management Review Meeting on February 13, Complainant was discharged. T. 291. Respondent's usual progressive discipline was not followed in this case. T. 298.

At arbitration Respondent reportedly advanced, as basis for Complainant's discharge, that Complainant "had inappropriately contacted OSHA, and Department of Transportation with regard to unsafe operation of side reel delivery trucks." Exh. CX-6 at 4. The ALJ in the instant STAA case found the arbitration "to provide some credible evidence of Respondent's position." R.D. and O. at 11. In explaining why he took no action regarding Complainant's February 1 written STAA complaint, Vice President Feda testified: "I wasn't surprised because I felt Ralph was just making another complaint about a truck or about a delivery." T. 268. Complainant persisted in his complaint, however, and revealed his intention to consult OSHA and DOT. Respondent ignored Complainant's concerns rather than addressing them. In inducing his work refusal, a form of self-help, this calculated stonewalling achieved the desired result.⁹ In short, Respondent precipitated and seized upon missed deliveries to justify discharging a safety complainer who filed externally.

ORDER

Respondent is ordered immediately to offer Complainant

[Page 6]

reinstatement. 49 U.S.C. app. § 2305(c)(2)(B). The record suggests that Complainant is due back pay. Exh. ALJ-1, Final Investigative Report at 2, 4. Complainant, however, was deterred from producing evidence on this issue. T. 141-142. Accordingly, this case is remanded to the ALJ for findings as to any back pay appropriately awarded and costs and expenses, including attorney's fees, incurred. It is anticipated that the ALJ will complete these further proceedings and submit a recommended decision and order on damages and costs and expenses within 90 days of receipt of this order.

SO ORDERED.

Lynn Martin
Secretary of Labor

Washington, D.C.

[ENDNOTES]

¹Prior to January 1990, Complainant operated truck No. 4. Complainant complained about overpowering fumes in its truck cab and other safety defects. Other drivers also complained about fumes in truck No. 4, T. 24-26; Exh. CX-3, and Respondent attempted to correct the condition. T. 81, 246-250.

²Respondent maintains an oil delivery fleet of 14 straight chassis trucks, 25 tractors, and 49 trailers. Exh. CX-6 at 2; T. 255. Four of the straight chassis trucks and seven trailers are equipped with side hose reels, whereas ten straight chassis trucks and 42 trailers utilize a rear hose reel. Id. The newer residential delivery trucks are equipped with rear hose reels. T. 213. Placement of the hose reel at the rear permits convenient access for either right or left side delivery. The older, larger trucks with side reels originally were designed to carry Nos. 4 and 6 industrial and commercial oil rather than No. 2 residential heating oil. T. 112-113, 187, 210-212, 256.

³Vice President Feda denies that Complainant spoke to him directly about this safety concern until February 8. T. 265, 299. Complainant denies that he discussed this particular concern in his February 8 conversation with Mr. Feda, stating that they discussed only Complainant's physical symptoms associated with inhalation of truck fumes on that date. T. 330.

⁴Complainant mailed safety complaints to the Occupational Safety and Health Administration (OSHA) and the New York State Department of Transportation (DOT) on February 2. T. 89; Exh. CX-13. See Exhs. CX-10, CX-ll (OSHA Citation and Notification of Penalty).

⁵Complainant's prima facie case requires a showing sufficient to support an inference of unlawful discrimination. This burden in not onerous. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 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. Ellis Fischel State Cancer Hospital v. Marshall, 629 F.2d 563, 566 (8th Cir. 1980), cert. denied, 450 U.S. 1040 (1981). Accord Nackowiak v. University Nuclear Systems Inc., 735 F.2d 1159, 1162 (9th Cir. 1984).

⁶The "because" clause of Section 2305(b) applies to conditions rendering operation of a commercial motor vehicle hazardous. Roadway Exp.. Inc. v. Dole, 929 F.2d 1060, 1062-1063 (5th Cir. 1991) (hazardous ice storm); Robinson v. Duff Truck Line. Inc., Case No. 86-STA-3, Sec. Dec., Mar. 6, 1987, slip op. at 18-22, aff'd on other grounds sub nom. Duff Truck Lines. Inc. v. Brook, No. 87-3324 (6th Cir. May 4, 1988) (adverse road conditions); Palmer v. Western Truck Manpower, Case No. 85-STA-6, Sec. Remand Order, Jan. 16, 1987, slip op. at 6-8, remanded on other grounds, No. 90-70430 (9th Cir. Sept. 6, 1991) (improperly loaded tractor trailer). Accordingly, hazardous traffic conditions in which Complainant was required to operate the hose, reel, and controls of his delivery vehicle come within the purview of Section 2305(b). Cf. Consolidation Coal v. Federal Mine Safety & Health, 795 F.2d 364 (4th Cir. 1986) (work refusal protected where miner questioned safety of procedure utilizing locomotive as "trailing motor" to brake runaway "trip" of coal haulage cars).

⁷Indeed, in his hearing testimony, Vice President Feda acknowledged that this aspect of Complainant's work was "risky" and involved "risk." T. 284, 288.

⁸Complainant made clear that his refusals were situation specific. T. 190-194. A left side delivery with a right reel truck inside hospital grounds, for example, was not hazardous, and Complainant did not refuse to make such a delivery. T. 157. I do not adopt the ALJ's contrary findings, R.D. and O. at 17-19, which are not supported by substantial evidence on the record considered as a whole. 29 C.F.R. § 1978.109 (c)(3) (1990).

⁹Cf. Liqqett Ind. v. Federal Mine Safety & Health Rev. Com'n, 923 F.2d 150, 152-153 (l0th Cir. 1991) (impasse created by management resistance to correcting hazardous condition resulted in workers' constructive discharges); Gilbert v. Federal Mine Safety & Health Rev. Com'n, 866 F.2d 1433, 1440-1441 (D.C. Cir. 1989) (where worker has expressed reasonable, good faith fear in a hazard, employer has corresponding obligation to address perceived danger; continued work refusal remains reasonable in face of management "stonewalling"); Secretary of Labor ex rel. Hogan v. Emerald Mines Corp., 1986 O.S.H. Dec. (CCH) par. 27,653 (July 31, 1986), aff'd, No. 86-3786 (ad Cir. 1987) (management action insufficient to render employees' continued work refusals unreasonable).