DATE: December 9, 1992
CASE NO. 92-STA-4
IN THE MATTER OF
DANIEL J. GREEN,
COMPLAINANT,
v.
CREECH BROTHERS TRUCKING,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER
Before me for review is the Recommended Decision and Order
(R.D. and O.) issued on August 14, 1992, by Administrative Law
Judge (ALJ) Joel R. Williams in this case, arising under Section
405 (employee protection provision) of the Surface Transportation
Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1988),
and its implementing regulations, 29 C.F.R. Part 1978 (1991).
Complainant Daniel Green was employed by Respondent Creech
Brothers Truck Lines, Inc., and its affiliate, B & C Leasing, as
an over-the-road driver of tractor trailers from October 1986
until his discharge in early 1991. Green alleges that he was
discharged in violation of STAA Section 405(b) for his
January 28, 1991, refusal to operate a commercial motor vehicle
when fatigued and after having been on duty for 15 hours. 49
C.F.R. §§ 392.3, 395.3(a)(2) (1991). Green also
alleges that he routinely documented defects and deficiencies on
his driver's vehicle inspection report, 49 C.F.R. § 396.11,
that Respondent objected to this practice because of access by
Department of Transportation (DOT) inspectors, and that his
discharge resulted
[PAGE 2]
in part from such documentation presumably in violation of STAA
Section 405(a).[1]
In its defense, Respondent claims that it discharged Green
because of equipment abuse. Respondent points particularly to
damage to Green's tractor on January 28, 1991, to difficulties
with his tractor tires in April and May 1990, and to accidents
in October and November 1989. Respondent also claims that it
discharged Green because of his "attitude." Hearing Transcript
(T.) 121, 125. The ALJ has recommended that Green's complaint be
dismissed because Respondent's managers who discharged him did
not know that he "had been asked to drive again on January 28
and, in fact, that they did not want him to do so."
On review, Green charges that he was denied a full and fair
opportunity for a hearing. He states:
Judge Williams told counsel for both parties
before hearing opened that he had a plane to
catch. His voice sounded very irritated and
set the tone and amount of questions to be
asked. This caused my counsel to advise me
that the Judge is very agitated. . . . He
said the Judge had a 5 p.m. plane to catch
and that his staff had failed to schedule the
hearing earlier which he wanted.
Green 9/5/92 letter at 1. Green also complains that his counsel
unduly abbreviated witness examination in compliance with "time
constraints imposed by Judge Williams." Id. at 5. The
record tends to support Green's charge. The hearing was not
convened until 12:40 p.m. on May 7, 1992. During examination
relevant to one of the claimed instances of equipment abuse,
counsel admonished Green: "The Judge has to catch an airplane at
5:00. If you could just make a long story short." T. 31. At
the conclusion of Green's case-in-chief, the ALJ reminded the
parties of his "time constraints." T. 102. At the conclusion of
the hearing, the ALJ disallowed closing argument, stating: "I
guess you realize that I'm under some time constraints if I want
to get back to Washington today." T. 154-155. Accordingly, in
reviewing the case record, I have considered, inter alia,
whether witness examination appears incomplete and whether
further case development is appropriate.
FACTS
Although the Respondent carrier hauls a variety of
commodities, its principal haulage consists of automobile parts
designated "just in time" shipments. T. 20-21. Drivers assigned
these loads are required to "check call" with their location and
estimated time of arrival every four hours because coordination
with an automobile manufacturer's assembly plant is paramount.
[PAGE 3]
T. 69-70. In late 1988, Respondent received the following
customer complaint:
Every shipment that we handle is a timed
shipment with the lading designated to be on
an assembly line at a specific time to build
a specific car. When those parts are not at
the plant on time, it either stops a
production line, at astronomical loss of
dollars, or it requires cars on the line to
pass the station where the part is to be
applied and, at triple and quadruple the
price of installation, parts are put on as
the car is out in the holding yard after
leaving the assembly line. . . . We cannot
and will not tolerate your company putting in
a trailer to pick up the lading and the
driver only has two hours before he has to
take his rest . . . . Just as imperative are
driver check calls on a regular basis . . . .
Exh. CX-1 at 2. Respondent, which remained under pressure to
meet scheduled deliveries because of previous service failures,
determined that a driver's single failure to check call would
result in discharge. Id. at 1.
Green testified that in late 1989 "I got caught up in some
real hard running. They didn't have enough drivers for the
freight and every time I called in they had a load they wanted me
to run." T. 30. On October 5, 1989, during a run from Missouri
to North Carolina, and then to Norfolk and Newport News,
Virginia, Green became fatigued. He testified that when he
called in near Norfolk
Bart Creech got on the phone and told me to
get my butt up to Newport News, they had a
load there I had to pick up. I still hadn't
been to bed and I was struggling to stay on
the road. . . . I picked up the load and ran
again without going to bed. They told me I
had to call in four hours on that load. . . .
When I got up the road above Charleston, West
Virginia, near Ravenswood, a deer come across
the guardrail. And I was suffering from
severe fatigue. I made a right turn with my
steering wheel to avoid the deer and turned
my truck over on the road.
T. 30-31. As a result of his accident, Green became "actively
concerned" about safety. In November, he reported himself to
[PAGE 4]
DOT. He testified:
I told them my concerns with hours of service
driving for Creech, that it got out of hand.
That it was impossible for me to refuse
without getting terminated. That they didn't
want me to write any defects of my truck in
the log book . . . . To keep it out of the
log book because DOT would come in and check
their files.
T. 32. The record does not show that Respondent knew about these
complaints. On November 16, 1989, Green was involved in an
accident in Michigan. He testified that he was not at fault,
T. 55, 58, and the traffic accident report tends to confirm his
testimony. Exh. RX-1 at attachment 6.[2]
Respondent cites these 1989 accidents as partially
motivating its decision to discharge Green in 1991. Without
elaborating, William Kesler, Respondent's safety director,
testified that he considered both accidents "preventable and
chargeable." T. 108-109. See generally Exh. CX-4 at
74-78. Under Respondent's "Rules of Conduct and Disciplinary
Process" the penalty for "preventable accidents" is a "formal
written warning" for the first offense and termination for the
second offense. Exh. CX-4 at 84. Green neither received a
warning nor was discharged following these accidents. Since the
accidents failed to elicit timely discipline, I find it unlikely
that they motivated Respondent in its 1991 discharge decision.
B.
During 1990, Green experienced difficulty with vehicle
tires. Shortly after midnight on April 16, the left rear drive
wheel on Green's tractor "locked up" due to an incorrect brake
job. Because the wheel became stationary, Green's moving tractor
had the effect of "dragging the tires down the road," causing
damage to two of the used or "core" tires. T. 52-54. The road
conditions were wet with heavy fog, and there was no shoulder at
Green's location. Upon determining that it would be unsafe to
park the vehicle in the road, Green proceeded to a parking lot
where replacement tires could be mounted. Exh. CX-7. Moving the
equipment to a safe location further damaged the tires. Green
submitted a detailed vehicle inspection report documenting the
incident, id., and was chastised by Safety Director Kesler
for making the report. T. 34-35. In his report, Green
referenced the "DOT rule 396.7b exemption for operating unsafe
vehicle" and noted "public safety more important than value of 2
tires."[3] Green testified that his vehicle inspection reports
were a source of ongoing friction with management. T. 32-35, 40.
His
[PAGE 5]
testimony on this point is uncontroverted.
On May 6, 1990, Green discovered that two of his new tires
were "notched." The record reveals little about this condition.
Green was concerned that the tires were defective and unsafe,
complained to Kesler, and apparently ultimately verified their
safety with the tire company. T. 110-111 (Kesler). Respondent's
"investigation showed no defect in the tires . . . ." Exh. RX-1
at 2. Kesler's testimony that the tires "were in fact safe
because they were just notched," T. 111, suggests that the
condition was not serious.
On May 16, 1990, two tires showed "flat spots" which Green
believed were caused by material in the road becoming wedged
between the tandems. Respondent charges, however, that Green
had "curbed" the tires, i.e., "pinched [them] up against
the curb. . . ." T. 112. Green denied curbing the tires, T. 52,
56, but paid for the damage by directing Respondent to deduct the
amount from his performance bonus. T. 54, Exh. RX-1 at 3. I
note that Respondent did not make similar deductions for the
other incidents, Exh. CX-3, despite the fact that "general care
of the equipment" serves as a "guideline" for reducing this
bonus. Exh. CX-5; T. 126-127 (Kesler), T. 146 (Vice-President
Creech).
On May 18, 1990, Kesler met with Green about his "overall
performance." T. 38. Green testified that Kesler "told me to be
careful from here on, he says, 'You got to be careful.' He said,
think I can hold Bart [Creech] off,' he said [on] more than one
occasion." Id. Green also testified that Kesler did not
state that he was being placed on probation or issue him any
written warning. Possibly referring to a probationary period,
Kesler testified only that "I needed some time that [Green] would
not continue to have these mishaps. . . ." T. 155. Although
Kesler's notes reference a "6 months to year" probationary
period, which could have expired as early as November 1990, I
note that they were prepared before he met with Green, T. 113-
114, and thus may not reflect precisely what transpired during
the meeting. See Exh. RX-1, attachment 10 at 2. Upon
consideration of Green's denial, Kesler's testimony that he
referred only to "some time" during the May 1990 meeting, and
the facile manner in which Kesler alluded to a one-year probation
when discharging Green, T. 39, I find it unlikely that Kesler
communicated any probationary status until Green's 1991
discharge. In so finding, I accord little weight to the
testimony of Respondent's Vice-President of Operations, William
"Bart" Creech, about the meeting between Kesler and Green, T.
136, since Creech did not attend it and did not recall discussing
what Kesler should tell Green at the meeting.
Upon considering the "tire incident" evidence discussed
[PAGE 6]
above, I find that the events of April 16 primarily influenced
Creech and Kesler in their discharge decision. Although Green
may have curbed tires on May 16, he paid for the damage thus
largely removing this incident from consideration. The May 6
"notching" incident appears inconsequential in terms of any
damage. With regard to that incident, any concern more likely
focused on Green's facility for complaining about tire safety.
Finally, Kesler conducted the May 18 meeting with reference to a
xeroxed copy of Green's April 16 Driver's Daily Log and Driver's
Vehicle Inspection Report, with his (Kesler's) notes penciled at
the bottom. Exh. RX-1, attachment 10 at 2. While Kesler may
have recited the "laundry list" of Green's work performance at
the meeting, I find that Respondent's true focus rested on the
April 16 incident, including Green's movement of the equipment to
avoid creating a hazard and his practice of completing required
vehicle inspection reports.
C.
Late on the evening of January 27, 1991, Green reported for
work. He was assigned to haul a load of hazardous materials to
Iowa and to return with a "just in time" shipment of automobile
parts. He testified:
It was snowing. . . . It was on the ground.
It was extremely cold. And I went to a truck
stop in Hannibal [Missouri], unhooked my
empty trailer, took that empty to Cyanamid,
which is at South River, Missouri, and I went
to their back lot which was snow covered and
looked flat. And I backed my trailer in on a
drop lot and unhooked it. Pulled forward
making a right-hand turn . . . and my left
front wheel . . . dropped through ice. And I
was setting there stuck in a bobtail
position.
T. 21. Green was unable to back up or pull forward. The plant
superintendent refused assistance and no other Creech truck
arrived to pull him out. Because he was not permitted to sleep
in the truck due to plant chemical manufacturing activities,
Green spent the night in the guard shack, periodically checking
the tractor engine which remained running to avoid freezing.
Green telephoned Respondent's dispatch at 6:30 a.m. on January 28
to arrange for assistance and was pulled out by a plant
maintenance contractor between 7:30 and 8:00 a.m. He testified:
I took my hammer and knocked the chunk of ice
off the left front steering wheel and got in
my truck and set the power divider, locked it
[PAGE 7]
in and let up on the clutch to pull forward and it moved
forward about eight feet. There was a popping noise like it
came out of gear. It startled me. I attempted to move it
just a little bit one more time and it didn't move. So I
went back up to call my dispatcher . . . . And then the
head dispatcher got on, Gary Custer, told me to go back down
there and unlock the power divider and try to move the
truck. I said, "I don't think it'll go." He said, "Go down
there and try to move -- see if you can drive it to Troy
[Missouri]." I went down and checked and tried one more
time. And at that time it vibrated and popped and a piece
of metal had shoved through the rear casing.
T. 22-23.[4] Green again consulted with dispatch which sent a
wrecker to tow the tractor. Green was instructed to return with
the wrecker to Troy in order to depart with a substitute tractor.
Green complained of fatigue, "wrote [him]self out of service"
because he was "out of hours," and went home. T. 24-25. He
subsequently was discharged.
DISCUSSION
To prevail on a STAA complaint, a complainant must establish
that the respondent took adverse employment action against him
because he engaged in an activity protected under Section 405.
A complainant initially must show that it was likely that the
adverse action, e.g., discharge, was motivated by a
protected complaint or work refusal. The respondent may rebut
such a showing by producing evidence that the adverse action was
motivated by a legitimate, nondiscriminatory reason. The
complainant then must prove that the proffered reason was not
the true reason for the adverse action. In the event that a
complainant demonstrates that the respondent took adverse action
in part because he engaged in a protected complaint or refusal,
the burden shifts to the respondent to demonstrate that the
complainant would have been disciplined even if he had not
engaged in the protected activity. Cf. Pogue v. U.S.
Dept. of Labor, 940 F.2d 1287, 1289-1290 (9th Cir. 1991);
Mackowiak v. University Nuclear Sys., Inc., 735 F.2d 1159,
1164 (9th Cir. 1984).
STAA Section 405(a) prohibits an employee's discharge
because he has filed a complaint "relating to a violation of a
commercial motor vehicle safety rule, regulation, standard, or
order . . . ." 49 U.S.C. app. § 2305(a). Internal
complaints, e.g., to an employer, are protected.
Protection is not dependent on actually proving a violation.
Yellow Freight Svstem, Inc. v. Martin, 954 F.2d 353,
356-357 (6th Cir. 1992). STAA Section 405(b) provides that "[n]o
person shall discharge . . . an employee . . . for refusing to
operate a vehicle when such operation constitutes a violation of
any Federal rules,
[PAGE 8]
regulations, standards, or orders applicable to commercial motor
vehicle safety or health, or because of the employee's reasonable
apprehension of serious injury to himself or the public due to
the unsafe condition of such equipment."[5] 49 U.S.C. app.
§ 2305(b).
Green engaged in protected activity when he complained to
DOT following his October 5, 1989, accident, when he complained
to Kesler that he believed his notched tires were unsafe, and on
January 28, 1991, when he complained about fatigue and refused to
operate a commercial motor vehicle after having remained on duty
for 15 hours. 49 C.F.R. §§ 392.3, 395.3(a)(2). I also
find that, in the circumstances present here, Green's practice of
completing vehicle inspection reports, and his April 16, 1990,
report, constituted protected complaints under STAA Section
405(a). Respondent objected to this practice. Green's
persistence in completing the form in compliance with 49 C.F.R.
§ 396.11 to ensure its availability to DOT served as a
continuing "complaint" to Respondent about its policy.
Finally, I find that moving equipment to a safe location on
April 16 brought into play both the "when" and "because" clauses
of STAA Section 405(b). The alternative "operation" of his
vehicle consisted of parking it on the traveled portion of the
highway[6] in inclement conditions with poor visibility while
awaiting and performing tire replacement and presented precisely
the hazard of serious injury to himself and the public that 49
C.F.R. § 396.7(b) is designed to avoid.[7] The fact that
moving the equipment unavoidably exacerbated the tire damage does
not remove Section 405(b) protection in that DOT regulation 396.7
expressly contemplates that a vehicle may be operated in such
condition as likely may cause breakdown if operation "is less
hazardous to the public than to permit the vehicle to remain on
the highway." Green therefore is protected in refusing to leave
his vehicle on the highway and in moving it to the nearest safe
location. SeeLeBlanc v. Fogleman Truck Lines,
Inc., Case No. 89-STA-8, Sec. Remand Order, Dec. 20, 1989,
aff'd sub nom.Fogleman Truck Lines, Inc. v.
Martin, No. 90-4114 (5th Cir. Apr. 17, 1991) (refusal to
undertake trip assignment, returning instead to employer's
terminal for repairs). Cf. Secretary ofLabor ex rel. Robinette v. United Castle Coal Company, 3
FMSHRC 803 (1981) (under Federal mine safety law, protection
extended to forms of self-help, i.e., taking some
affirmative action other than merely refusing to work).
While Safety Director Kesler and Vice-President Creech may
not have known about Green's DOT complaints and their dispatch's
January 28, 1991, work order, see discussion infra,
they admit that Green's April 16 and May 6, 1990, activities
motivated their discharge decision. Moreover, they also
attribute their decision
[PAGE 9]
to Green's "attitude," i.e., "that he wouldn't improve
himself or help the situation," T. 125, behavior which reasonably
included his practice of completing vehicle inspection reports.
Accordingly, the burden shifted to Respondent to demonstrate that
it would have discharged Green even if he had not engaged in
these protected activities, an allegation which Respondent
neither asserted nor proved. In such cases, a respondent "bears
the risk that 'the influence of legal and illegal motives cannot
be separated. . . .'" Mackowiak v. University Nuclear Svs.,
Inc., 735 F.2d at 1164, quotingNLRB v.
Transportation Management Corp., 462 U.S. 393, 403 (1983).
In reaching this result, I disagree with the ALJ's R.D. and
O. predominantly because it focuses on the January 28, 1991,
equipment damage as precipitating Green's discharge and declines
to consider the remaining incidents, some of which involved
protected activity, which Respondent also proffers as its
motivation. In particular, in discounting the April 16, 1990,
incident because it predated the discharge by a number of months,
the ALJ failed to recognize that Respondent admittedly discharged
Green in part because of this incident. I also reject, as unduly
restrictive, the ALJ's identification of internal complaints in
this case. R.D. and O. at 7, first paragraph.
Finally, had I not found that Respondent failed to meet its
burden of proof, I would remand the case for further proceedings.
In particular, I question whether Complainant was permitted an
adequate opportunity to examine Respondent's witnesses and
whether the ALJ's findings pertaining to the events of
January 28, 1991, are supported by substantial evidence.
The record shows that on January 28 Green repeatedly was
directed by Respondent's dispatch to return to Troy, Missouri,
for reassignment. These conversations occurred between 8:00 a.m
and sometime "after noon," when Green initiated the final
telephone call because the wrecker had not yet arrived. At that
time, he declined reassignment due to fatigue. T. 43-44, 46,
88-90, 97-101.[8] Safety Director Kesler merely denied
summarily that he knew about dispatch's work order. T. 118-119.
Vice-President Creech testified only that he did not assign Green
work after January 28. T. 139. Creech was not asked whether he
knew about Green's work refusal and whether it influenced his
opinion of Green's "attitude."
The record shows that on the afternoon of January 28 Creech
ordered a mechanical inspection of Green's tractor, that on the
morning of January 29 the truck center reported that it required
additional time to determine what had caused the damage, and that
sometime thereafter Creech was advised that the damage resulted
from "shock load." T. 138-139. Creech and Kesler testified that
they finalized their decision to discharge Green during their
[PAGE 10]
Friday, February 1, 1991, meeting.[9] T. 119-121, 139-140.
Green first learned during the Friday meeting that he reportedly
had been on probation. T. 39. Kesler's notes of his May 18,
1990, meeting with Green reflect a six-month to one-year
probationary period which could have expired as early as
November 1990 since there were no intervening incidents. At
the February 1, 1991, meeting, however, Kesler referenced only a
one-year probation.[10] Green testified that he had turned in
his logs to Respondent "by" Friday, February 1, including his
detailed January 28 Driver's Daily Log and Driver's Vehicle
Inspection Report documenting the tractor defects and
deficiencies. T. 94-95; Exhs. CX-1, CX-2. Kesler and Creech
were not examined about the report. In short, some of this
evidence suggests that Respondent seized upon the January 28
equipment damage to get rid of Green, and examination of Creech,
in particular, was inadequate to resolve questions raised above.
ORDER
1. Respondent shall offer Complainant reinstatement to his
former or a comparable position and tenure.
2. Respondent shall pay Complainant back pay and benefits
from January 28, 1991, until the date of reinstatement (or
declination of offer), see, e.g., Exh. CX-3, less interim
earnings, with interest calculated pursuant to 29 U.S.C. §
6621 (1988).
Counsel for Complainant is granted a period of 20 days from
receipt of this Decision and Order to submit any petition for
costs and expenses, including attorney's fees. 49 U.S.C. app.
§ 2305(c)(2)(B). Respondent thereafter may respond to any
petition within 20 days of its receipt.
SO ORDERED.
LYNN MARTIN
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1]
The investigation findings of the Assistant Secretary for
Occupational Safety and Health, which refer to alleged violations
of both subsections 405(a) and (b), conclude that "Respondent's
discharge of Complainant was not a violation of Section 405 of
[the] STAA (49 U.S.C. [app.] § 2305)" because Complainant
was discharged for a legitimate business reason.
[2]
While Green was in the process of making a hard right turn, an
automobile attempted to pass his tractor trailer in the half-lane
clearance on the right. Green appears to have followed proper
procedures for executing such a turn. The driver of the
automobile admitted that Green had signaled his turn for a full
block but that she was unable to stop. Road conditions were wet
with sleet, snow, and high winds.
[3]
The regulation cited, 49 C.F.R. § 396.7, provides:
(a) General -- A motor vehicle shall not be
operated in such a condition as to likely
cause an accident or a breakdown of the
vehicle.
b) Exemption -- Any motor vehicle discovered
to be in an unsafe condition while being
operated on the highway may be continued in
operation only to the nearest place where
repairs can safely be effected. Such
operation shall be conducted only if it is
less hazardous to the public than to permit
the vehicle to remain on the highway.
[4]
Head Dispatcher Custer did not testify at the hearing.
[5]
Protection under this criterion also requires that "[t]he
unsafe conditions causing the employee's apprehension of injury
must be of such nature that a reasonable person, under the
circumstances then confronting the employee, would conclude that
there is a bona fide danger of an accident, injury, or serious
impairment of health, resulting from the unsafe condition" and
that "the employee must have sought from his employer, and have
been unable to obtain, correction of the unsafe condition."
[6]
This practice generally is prohibited under 49 C.F.R.
§ 392.21 unless it is impracticable to move the vehicle.
[7]
Section 405(b)'s "because" clause normally requires an
employee to seek correction of the unsafe condition from his
employer before refusing work. Duff Truck Line, Inc. v.
Brock, No. 87-3324 (6th Cir. May 4, 1988), aff'g Robinson
v. Duff Truck Line, Inc., No. 86-STA-3, Sec. Dec., Mar. 6,
1987. Where, as here, the requirement is not feasible, courts
have recognized that it should not apply. Simpson v. Federal
Mine Safety & Health Rev. Com'n, 842 F.2d 453, 459-461 (D.C.
Cir. 1988) (qualified requirement subject to exception where
unusual circumstances, e.g., futility, exist).
[8]
Substantial record evidence does not support the ALJ's
contrary finding that Green was told to return to Troy for
reassignment only during initial contacts with dispatchers.
R.D. and O. at 7, third paragraph. See 29 C.F.R.
§ 1978.109(c)(3).
[9]
The ALJ's finding that Green was discharged on January 30,
1991, is not supported by substantial evidence. Creech testified
that he discharged Green at the meeting with Green's wife in
attendance, T. 139-140, which was the meeting held on Friday,
February 1. Kesler testified that although he and Creech "were
both inclined . . . to think that [Green] should be released"
before the meeting convened, they determined that "possibly he
could be retained" depending on what he related in "present[ing]
his side of the story." T. 121-122.
[10]
According to Green, "Bill Kesler run it right by me real
quick. He said, 'You were on one year's probation and, Dan, I'm
sorry."' T. 39. Kesler did not testify about the length of any
probationary period.
