ARB CASE NO. 99-013
ALJ CASE NO. 98-STA-8
DATE: July 28, 1999
In the Matter of:
CLARENCE SCOTT,
COMPLAINANT,
v.
ROADWAY EXPRESS, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Philip L. Harmon, Esq., Worthington, Ohio
For the Respondent:
Barbara J. Leukart, Esq., Stephen E. Baskin, Esq., Michael J.
Moody, Esq.,
Jones, Day, Reavis & Pogue, Cleveland, Ohio
FINAL DECISION AND ORDER
This case arises under Section 405, the employee protection provision, of the
Surface Transportation Assistance Act of 1982 (STAA), as amended, 49 U.S.C. §31105 (1994).
Complainant, Clarence Scott (Scott), filed this complaint, contending that his former employer, Respondent,
Roadway Express, Inc. (Roadway), violated Section 405 when it issued disciplinary warning letters
because Scott called in sick, and also when it issued subsequent warning letters for various infractions.
After Roadway discharged him, Scott also contended that his discharge violated Section 405.
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The Administrative Law Judge (ALJ) issued a Recommended Decision and Order
(RD&O), finding that Roadway violated Section 405 when it issued the warning letters for calling in sick.
Notwithstanding, the ALJ concluded that Scott's discharge did not violate the STAA. In a subsequent
Order Granting Attorney Fees (Att. Fee Order), the ALJ awarded attorney fees and costs to Scott.
We accept the ALJ's factual findings and most of his legal conclusions, as we explain
below. Like the ALJ, we find that issuing certain disciplinary letters to Scott was a STAA violation, but
that discharging him ultimately did not constitute a violation.
PROCEDURAL HISTORY
Scott filed this complaint with the Department of Labor's Occupational Safety
and Health Administration (OSHA) in September 1997, concerning various disciplinary warning letters.
Prior to Roadway receiving notice of Scott's OSHA complaint, the company decided to discharge Scott
because of his poor work record. Under the union contract, Scott continued to work for Roadway until
his discharge was upheld in a January 1998 hearing.
The OSHA Area Director found that Scott's complaint did not have merit. Scott
timely requested a hearing on his complaint before an ALJ. The parties agreed that Scott's original
complaint also included the issue whether his subsequent discharge violated Section 405. A three day
hearing was held in August 1998, and the ALJ issued a recommended decision in November of that year.
ISSUES FOR DECISION
This case presents several issues for review:
1)Whether, under 29 C.F.R. §1978.112(c), the ALJ should have deferred
to the outcome of a hearing, conducted pursuant to the collective bargaining agreement, in which
Roadway's discharge of Scott was upheld.
2) Whether Roadway violated STAA's complaint cause, 49 U.S.C.A.
§31105(a)(1)(A), by disciplining or discharging Scott for making safety complaints.
3) Whether Roadway violated STAA's refusal to drive clause, 49 U.S.C.A.
§31105(a)(1)(B), by retaliating against Scott for refusing to operate a vehicle when driving would
have violated the "illness/fatigue" rule at 49 C.F.R. §392.3.
4) If Roadway violated the STAA, whether the ALJ correctly awarded some
$13,000 in costs and attorney fees, among other remedies.
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FACTUAL BACKGROUND
The following facts are important for understanding the claims and issues we discuss.
Scott worked as a truck driver for Roadway, based at its Akron, Ohio facility. He was an "extra
board" driver who lacked the seniority to bid on regular, fixed routes with a regular schedule of work
hours. T. 309; RD&O at 5. Extra board drivers are sent wherever and whenever the company needs a
delivery made. T. 310; RD&O at 5.
Under a collective bargaining agreement, Roadway's progressive discipline policy
begins with issuing a letter of warning to an employee for a violation of company work rules or procedures.
T. 607; RD&O at 13. The second step is a local hearing in which the company discusses with the union
the appropriate sanction for the past nine months' violations in the employee's work record. T. 608;
RD&O at 13. If the local hearing is deadlocked, the parties progress to a hearing before the joint state
committee, whose decision is final if it upholds the discipline. T. 176. If, however, the joint state
committee is deadlocked, the parties progress to a hearing before the joint area committee, and if deadlock
occurs again, to a national hearing and ultimately to an arbitration at the national level. T. 177.
Over the course of Scott's five and a half years of employment with Roadway, the
company took disciplinary action against him numerous times. T. 611; RX 5-168; RD&O at 13. In all,
Scott received about 50 warning letters and was suspended six times. T. 610; RX 1-169-9, RX 5-168;
RD&O at 13. In addition, the company discharged him on four occasions prior to the discharge at issue
here. T. 610; RD&O at 22. Under the union contract, employees remained on the job pending a hearing
on a discharge. CX 13-1; RD&O at 24. Just cause is required to sustain a discharge. T. 182-83; RD&O
at 24.
In the case of Scott's first four discharges, at subsequent hearings the union and
company agreed to a less severe sanction. T. 610-621; RD&O at 22. For example, Roadway issued
Scott's fourth discharge because his recklessness had caused a truck accident, which he did not report, and
because of his poor work record. RD&O at 22. At a joint area committee hearing, the discharge was
reduced to an 122-day suspension without pay. T. 624-25, 629-31, 633; RX 7-15G. RD&O at 22.
1 Under the 48-hour rule, a trucker is entitled
to 48 hours off after completing six uninterrupted "tours of duty." T. 308; RD&O at 9 n.10.
A driver violates the rule when he claims the 48 hours off without having completed the six uninterrupted
tours. Concerning lateness, employees had two hours to report to work after receiving a telephone call;
those who arrived more than two hours after the phone call were considered late. T. 665-667; RD&O
at 17.
2 The union and management had
collectively bargained the running times between points. RD&O at 9 n.8. The agreed times were
considered to be averages and included breaks from driving. T. 198.
3 Scott contended that driving on
the days in question would have violated the Department of Transportation's "illness/fatigue
rule":
No driver shall operate a commercial motor vehicle, and a motor carrier shall not require
or permit a driver to operate a commercial 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/her to begin or continue to operate the motor
vehicle.
29 C.F.R. §392.3 (1997).
4 Scott's statement to OSHA is
dated in January 1998. An OSHA investigator interviewed Scott in September 1997, but did not
transcribe Scott's statement for his signature until several months later. RX 4-171, pp. 360-62.
5 According to a union representative
who attended the local hearing, Roadway did not consider the three October 23 warning letters at the
hearing. T. 205, 207; RD&O at 23.
6 The regulation refers to the
"Secretary," who has delegated authority to issue final decisions in STAA cases to the
Administrative Review Board.
7 The quoted regulation codifies the
doctrine of issue preclusion. Ass't Sec. and Brown v. Besco Steel Supply, Case No. 93-STA-
00030, ALJ Rec. Dec. and Ord., Aug. 26, 1994, aff'd, Sec. Dec. and Ord., Jan. 24, 1995.
8 The letter indicates that Scott was
late by .81 hour, which corresponds to 49 minutes.
9 Scott placed himself on sick call
one additional time, on November 27, 28, and 29, 1997 and received another disciplinary warning letter
for unexcused absence. RD&O at 18. Scott did not provide any physician's excuse for this absence,
which coincided with the Thanksgiving holiday. RD&O at 19 n.18. At his deposition, Scott claimed that
he could not recall if he saw a physician for this claimed illness. RX 4-171 at 326. Noting that Scott's
claim of illness in November 1997 was a "dubious assertion," the ALJ nevertheless found that
Roadway's issuance of a warning letter for this absence was a STAA violation because Roadway did not
challenge the legitimacy of Scott's claim. RD&O at 19 and n.19.
We agree that the stated reason for the absence is dubious because Scott did not
provide any physician's note concerning it. Likewise, we agree with the ALJ that issuing the disciplinary
letter violated the STAA because Roadway did not take any steps to ascertain whether Scott's claim of
illness was bona fide.
10 Each claim in turn consisted of two
issues, whether the adverse action was retaliation for protected complaints, and whether the adverse action
was retaliation for protected refusals to drive.
11 This case arose in Ohio, which lies
within the Sixth Circuit.