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
v.
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).
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).