ARB CASE NO. 99-055
ALJ CASE NO. 98-STA-30
DATE: April 28, 2000
In the Matter of:
ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH,
PROSECUTING PARTY,
and
OTIS BATES,
COMPLAINANT,
v.
WEST BANK CONTAINERS,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Prosecuting Party:
Laura V. Fargas, Esq.; Mark J. Lerner, Esq.; Daniel J. Mick, Esq.;
Donald G. Shalhoub, Esq.; Joseph M. Woodward, Esq.; Henry
Solano, Esq.;
U. S. Department of Labor, Washington, D.C.
For the Respondent:
G. Patrick Hand, III, Esq.;
The Hand Law Firm, Gretna, Louisiana
FINAL DECISION AND ORDER
This case arises under the whistleblower protection provision of the Surface
Transportation Assistance Act, "§405," and its implementing regulations. 49
U.S.C. §31105 (1997), 29 C.F.R. Part 1978 (1999). Section 405(a)(1) prohibits employer
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retaliation against employees who make complaints related to violations of commercial motor
vehicle safety laws (§405(a)(1)(A)), employees who refuse to drive when operation of the
vehicle would violate federal commercial vehicle safety regulations, standards or orders
(§405(a)(1)(B)(i)), and employees who refuse to drive because of a "reasonable
apprehension of serious injury" (§405(a)(1)(B)(ii)).
The Occupational Safety and Health Administration (OSHA), the agency that
administers the §405 program, charged West Bank Containers (West Bank) with violating two
provisions of §405(a)(1): §405(a)(1)(A) which protects employees who make
complaints related to violations of commercial motor vehicle safety laws, and §405(a)(1)(B)(i)
which protects employees who refuse to drive when doing so violates federal regulations, standards
or orders related to commercial motor vehicle safety or health. The administrative law judge (the
ALJ) affirmed the charge against West Bank based on §405(a)(1)(A).
West Bank timely filed a brief in opposition to the ALJ's decision. We have
jurisdiction over this case pursuant to 29 C.F.R. §1978.109(c)(2). We review the ALJ's
findings of fact under the substantial evidence standard. Id. at §1978.109(c)(3). Our
review of questions of law is de novo. 5 U.S.C. §557(b) (1996).
FINDINGS OF FACT
Otis Bates worked as a truck driver for West Bank Containers in New Orleans,
Louisiana for three weeks in 1998. On May 5, 1998, West Bank and Bates signed a "Trip
Lease Agreement," agreeing that Bates would work as a truck driver for West Bank using his
own truck tractor. Among other things, the agreement specified that Bates would be responsible for
maintaining his truck in good repair and for "meet[ing] all requirements of all applicable state
and federal laws, and all rules and regulations of the Louisiana Public Service Commission, U.S.
Dept. of Transportation, and the Interstate Commerce Commission." CX 1; Tr. 86.1
On this basis, as well as for the reasons set forth by the Supreme Court in
Brock v. Roadway Express, Inc., 481 U.S. 252, 258, 262, 107 S.Ct. 1740 (1987), and by the
Secretary in such cases as Rehling v. Sandel Glass Co., supra, I conclude that the
Assistant Secretary's position in this case -- that an employee's expression of concern about the
assignment of overweight loads qualifies as a safety-related complaint for purposes of STAA
coverage -- is wholly consistent with the statutory scheme. Furthermore, I believe that it is clear that
the position concerning protected activity that is advanced by the Assistant Secretary is based on
OSHA's "policy and experiential considerations." To deny protection to the raising of
a concern about overweight loads, which is obviously related to the question of maintaining adequate
control over the operation of a truck and trailer rig, can only have a chilling effect on the raising of
such concerns. See Brock v. Roadway Express, Inc., 481 U.S. at 258. In my view, the
Assistant Secretary's prosecution of this complaint demonstrates recognition of this reality.
E. COOPER BROWN Member
[ENDNOTES]
1 In this decision we refer to the transcript
as "Tr.," to OSHA's exhibits as "CX," and West Bank's exhibits as
"RX," and to the ALJ Decision as "ALJ." References to West Bank's brief
appear as "WB Br.," and references to OSHA's brief appear as "OSHA Br."
2 A §405 complaint must be
filed first with OSHA which, after investigation, issues a determination whether "there is
reasonable cause to believe" that a violation has occurred. 29 C.F.R. §1978.104(a).
OSHA ordinarily acts as the prosecuting party in cases in which the employer objects to the
reasonable cause determination but the employee supports the finding. Id. at
§1978.107(a). The employee acts as the prosecuting party if he or she objects to a "no
reasonable cause" determination by OSHA. Id. at §1978.107(b). In any case in
which the employer and the employee both object to OSHA's reasonable cause determination, OSHA
serves as the prosecuting party.
In this case, OSHA found reasonable cause to believe that a violation occurred,
and West Bank objected. Consequently, OSHA became the prosecuting party.
3 In its brief before us, OSHA
expressly abandoned the charge that West Bank violated §405(a)(1)(B)(i) ("refusal to
operate") by discharging Bates for his refusal to drive loads weighing more than 63,580 pounds.
(Bates' tractor trailer weighed 16,420 pounds, so any cargo exceeding 63,580 pounds would bring
Bates' total gross weight over 80,000 pounds, the maximum that Bates considered safe to drive).
OSHA Br. 15 n. 5. OSHA argues, however, that West Bank's reference to Bates' statement that he
would not haul more than 80,000 pounds is still relevant because it "clearly indicates animus
against Bates' complaints concerning driving overweight trucks." We see no logic in this
reasoning; after all, Bates himself corroborated the truth of West Bank's statement at the hearing.
4 Contrary to the dissent, Kelley
v. EPA, 15 F.3d 1100 (D.C. Cir. 1994), cert. denied, 513 U.S. 1110, 115 S.Ct. 900
(1995), in no way undermines the premise that Chevron analysis is necessary for determining
the meaning of §405(a)(1)(A). The issue in Kelley was whether Congress
intended a provision of the Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA) that related to computation of liability for clean up costs to "be governed by
traditional and evolving principles of common law." If so, then EPA would not stand in the
traditional posture of an agency authorized to issue legislative or interpretive regulations concerning
liability computation and, correspondingly, a reviewing court would have no need to apply
Chevron analysis to the agency's views. The court concluded that in enacting this provision
of CERCLA, Congress did not intend EPA to serve the traditional implementing role EPA plays
under most other parts of CERCLA. We do not regard this decision as establishing a general rule that
if an agency chooses, as the Secretary did under STAA, to establish an administrative enforcement
scheme that affords a hearing to a claimant despite the investigating agency's conclusion that litigation
is not warranted, that removes the statute from Chevron's ambit. Cf. Paralyzed Veterans
of America v. D.C. Arena L.P., 117 F.3d 579, 585 (D.C. Cir. 1997), cert. denied sub
nom., Pollin v. Paralyzed Veterans of America, 523 U.S. 1003, 118 S.Ct. 1184 (1998)
(characterizing the EPA's role in Kelley as "merely a prosecutive role").
5 Although OSHA has never
asserted in this case that the 80,000 pound load "limit" was a safety law, we are satisfied
that safety is indeed one of the goals of Louisiana's weight limit regulations.
Our own research shows that Louisiana assesses permit fees according to a
sliding scale based on weight, mileage and number, type, and distribution of axles. La. Rev. Stat.
Ann. §32:387H. The regulations state that issuance of permits is in the discretion of the State
Secretary of Transportation, taking into consideration the economic necessity for permits, the
necessity for transportation by public road, and the best interests of the state. Id. at
§32:387B(1). This provision indicates that at least one purpose of the state load limits and
permit system is revenue generating. However, that does not mean that the weight and permit system
does not also pertain to safety. Clearly it does, since adequate road maintenance is a necessity for safe
vehicle transportation. See 62 Fed. Reg. 1293 (1997) (in issuing a final rule under the
Intermodal Safe Container Transportation Amendment Act of 1996, the Federal Highway
Administration stated that, "[t]he purpose of highway weight laws is to minimize highway and
bridge wear and protect the motoring public").
6 OSHA did not identify any motor
vehicle regulation, standard or order relating to an 80,000 pound weight limit on commercial motor
vehicles until it filed its brief to us. Here OSHA states in a footnote that "Louisiana State Code
§ 32:387 provides that a four-axeled vehicle carrying over 80,000 pounds may not be driven
without a special permit." OSHA Br. at 12 n. 3. Notably, OSHA asserts neither that Bates'
truck was a four-axeled vehicle (nor would the record support such an assertion) nor that the cited
state code provision is a safety regulation, standard or order within the meaning of
§405(a)(1)(A).
7SeeClean Harbors v.
Herman, 146 F.3d 12, 19-21 (1st Cir., 1998); Yellow Freight Systems v. Reich, 8 F.3d
980, 986 (4th Cir. 1993); Yellow Freight Systems v. Martin, 983 F.2d 1195, 1198-99 (2d Cir.
1993); Yellow Freight Systems v. Martin, 954 F.2d 353, 356-57 (6th Cir. 1992); Moon
v. Transport Drivers, Inc., 836 F.2d 226, 227-229 (6th Cir. 1987); Dutkiewicz v.
Clean Harbors Envtl. Servs., 95-STA-34, 97-ARB-090 (ARB Aug. 8, 1997), slip op. at 3-4;
Rehling v. Sandel Glass Co., 91-STA-33 (Sec'y Jan. 6, 1992), slip op. at 4-5; Moyer v.
Yellow Freight Systems, 89-STA-7 (Sec'y Nov. 21, 1989); Davis v. H.R. Hill, 86-STA-18
(Sec'y Mar. 19, 1987); Nix v. Nehi-RC Bottling Co., 84-STA-1 (Sec'y July 13, 1984), slip op.
at 8-9. Cf. Galvin v. Munson Transportation, 91-STA-41 (Sec'y Aug. 31, 1992) (refusal to
drive overweight load based on potential violation of federal regulations held "protected
activity" under Section 405(a)(1)(B)).
8 The decision that was before the
court in Yellow Freight Systems v. Martin was rendered by the Secretary of Labor, Moyer
v. Yellow Freight Systems, 89-STA-7 (Sec'y Nov. 21, 1989).
9 The Kelley court, in
holding Chevron judicial deference to the EPA's statutory interpretation inappropriate, stated,
"even if an agency enjoys authority to determine such a legal issue administratively, deference
is withheld if a private party can bring the issue independently to federal court under a private right
of action." 15 F.3d at 1108.