(Argued: October 17, 1997 Decided: June 25, 1998 )
Docket No. 96 - 4162
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BRINK'S, INCORPORATED,
Petitioner,
v.
ALEXIS M. HERMAN, SECRETARY OF LABOR,
UNITED STATES DEPARTMENT OF LABOR;
UNITED STATES DEPARTMENT OF LABOR,
ADMINISTRATIVE REVIEW BOARD,
Respondents,
JOSEPH A. CAIMANO,
Intervenor.
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Before: JACOBS, LEVAL, Circuit Judges, and RESTANI,
Judge.*
Employer petitioned for review of the Secretary of Labor's
decision holding that employer violated the Surface
Transportation Assistance Act ("STAA"), 49 U.S.C. app. § 2305, by
discharging an employee who refused to work. The Secretary found
that the employee's refusal to work was justified and overturned
an ALJ determination that the employer had not violated the STAA.
Because the ALJ's findings were based on substantial evidence,
the Secretary was obligated by the regulations of the Department
of Labor to treat them as conclusive.
Review is granted and the Secretary's decision vacated.
JEFFREY W. PAGANO, New York, N.Y.,
(Herbert I. Meyer, Ira M. Saxe, King,
Pagano & Harrison, New York, N.Y., On
the Brief), for Petitioner.
JOHN SHORTALL, Attorney, Department
of Labor, Washington, D.C., (J. Davitt McAteer, Acting Solicitor of Labor, Joseph M.
Woodward, Associate Solicitor for Occupational Safety and
Health, Ann Rosenthal, Counsel for Appellate Litigation, U.S. Department of
Labor, Washington, D.C., On the Brief),
for Respondents.
Ted E. Karatinos, St. Petersburg, FL
(Seeley & Karatinos, P.A., St.
Petersburg, FL, On the Brief), for
Intervenor.
LEVAL, Circuit Judge:
Brink's Inc. ("Brinks"), an armored car delivery company,
discharged the intervenor Joseph A. Caimano, a messenger in its
employ, when he refused to go out on his daily run. Caimano
filed a complaint with the U.S. Department of Labor, alleging
that he was discharged for raising safety concerns and for
refusing to work in an unsafe vehicle, and that his discharge
therefore violated §§ 405(a) and (b) of the Surface
Transportation Assistance Act of 1982 ("STAA"), 49 U.S.C. app. §
2305.1
A hearing was held before an Administrative Law Judge
("ALJ") who found that Brinks had not violated the STAA. The
Secretary of Labor rejected the ALJ's Recommended Decision and
Order, and ordered Caimano reinstated with back pay. Brinks
petitioned this Court for review of the Secretary's findings. We
grant the employer's petition for review, set aside the
Secretary's Decision and Order of Remand, and direct that
Caimano's complaint be dismissed in accordance with the ALJ's
findings.
Background
Brinks is in the business of transporting and protecting the
currency and valuables of banks and other commercial
establishments. Brinks performs these services through the use
of armored vehicles which are routed on daily runs to customer
locations. A typical two-person armored vehicle is staffed by a
driver and a messenger. The driver sits in the cab of the
vehicle while the messenger sits in the rear compartment with the
valuables. According to Brinks policy, the messenger is in
charge of the run, including the route to be driven and the order
of stops. At each stop, the messenger is responsible for
delivering and picking up valuables from customers while the
driver remains in the vehicle.
Brinks vehicles are typically equipped with an electric door
lock to the rear compartment that allows the driver to prevent
access by third parties, a base radio in the cab to allow the
driver to communicate with the Brinks central office, and a
portable radio set for communication between the messenger and
driver.
Caimano began working for Brinks in Tampa, Florida on
September 16, 1991, as a part-time driver. In January 1993, he
was promoted to the position of full-time messenger. On April
21, 1994, upon reporting for work, Caimano was told that he was
scheduled to ride with Bombo Rivera, a driver who had little
experience with Caimano's assigned route, and that they would be
using Truck #201.
Caimano told Billie Creamer, the Vault Cashier in the Brinks
office, he was concerned that because #201 had no portable radio
set, he would be unable to communicate directions to the driver,
and the vehicle would be unsafe.
Creamer referred the matter to his immediate supervisor,
David Espinosa. Caimano repeated these concerns to Espinosa.
Espinosa unsuccessfully sought to locate a spare portable radio.
Another messenger, Mario Rodriguez, offered to switch trucks with
Caimano, but Caimano rejected the offer.
Espinosa telephoned Branch Manager Terry Dawson and apprised
him of the situation. Dawson offered to provide Caimano with a
radio set; Caimano refused because, he claimed, the radio
batteries would wear down before the end of the run and #201
lacked a battery recharger. Dawson then offered to send out a
replacement driver to meet up with Caimano during the run and to
send out two fully-charged radios during the run to replace the
initial set. Caimano rejected these offers as well.
Dawson then stated that he did not have any other options
for Caimano and asked Caimano whether he was going to take the
truck out. Dawson told Caimano that if he did not take the truck
out, he would be fired. Caimano did not answer Dawson's
question, but requested to speak to Brinks Regional General
Manager, Doug Ellison. Dawson connected Caimano to Ellison, who,
after hearing Caimano's problem and his refusal of Dawson's
offers, similarly asked Caimano if he would take the truck out.
When Caimano again did not answer, Ellison fired him.
Caimano filed a complaint with the U.S. Department of Labor,
alleging that he was discharged "for refusing to drive an unsafe
vehicle" and for "voicing . . . safety concerns regarding
trucks." In a subsequent letter to the Department of Labor
elaborating on his complaint, Caimano took the position that
because the driver Rivera had not been familiar with the route,
he would have needed to receive instructions from Caimano. This
would have been problematic because, he said, the bulkhead
separating the cab from the cargo compartment prevented ordinary
oral communication between driver and messenger. Without a
portable radio set, Caimano contended, Rivera would have been
unable to hear Caimano's directions and would have been forced to
take his eyes off the road to look in the rear-view mirror and
attempt to lip read Caimano's instructions. This would have
created a hazardous condition.2 Caimano also alleged
that his
firing had been "the direct result of," and in retaliation for,
complaints he had made six weeks prior to his discharge on March
8, 1994 during a "speak-out" session between Brinks management
and its employees.3 At that session, Caimano asked
about fuel
fumes in the rear compartment of #201. Dawson responded that
#201 would be sent to an environmental station to be checked out.
It appears the issue of fumes was never again mentioned by
Caimano until after filing his complaint with the Labor
Department.
After an initial investigation, the Department of Labor
issued findings dated September 26, 1994, determining that Brinks
had not violated § 405 of the STAA in discharging Caimano. The
findings stated that Caimano did not have a "reasonable
apprehension of serious injury to himself or the public due to
the unsafe condition of [the truck]." With respect to Caimano's
allegation that he had been fired for his complaints at the March
8 speak-out, the Department concluded that "[t]he evidence did
not establish . . . that there was any causal link between
[Caimano's] complaints at that meeting and his termination
approximately six weeks later."
Caimano filed objections pursuant to STAA § 405(c)(2)(A). A
de novo hearing was held before an ALJ. The ALJ issued a
Recommended Decision and Order also concluding that Brinks had
not violated the STAA. The ALJ examined Caimano's contentions
and found that each was either "unreasonable" or that Brinks had
"acted responsibly" in providing a remedy.4 The ALJ
concluded
that "none of the specific allegations made by [Caimano] were of
a serious enough nature to warrant a refusal to take the truck
out based on safety." The ALJ further found no "meaningful
relationship" between Caimano's complaints at the March 8 speak-out session and Caimano's
discharge and that Caimano was
terminated solely for his insubordination in refusing to work.
Caimano appealed the ALJ's findings to the Secretary. Upon
that appeal, the Secretary was obligated by regulation to treat
the ALJ's findings as conclusive if supported by substantial
evidence. See 29 C.F.R. § 1978.109(c)(3)(1997). In a Decision
and Order of Remand dated January 26, 1996, the Secretary
rejected the ALJ's findings. The Secretary stated that the ALJ
had "failed to render factual findings pertinent to all
dispositive legal issues before him." The Secretary concluded
that "[c]ontrary to the ALJ's finding, . . . the evidence does
establish that Caimano was reasonably apprehensive that driving
Truck 201 on April 21, 1994 could result in possible injury to
himself or the public." The Secretary found that Caimano had a
reasonable safety apprehension by reason of the lack of portable
radios and the possible presence of fumes in the rear compartment
of #201. Furthermore, the Secretary found that the alternatives
proposed by Brinks were inadequate to resolve Caimano's
apprehension. Finally, the Secretary found that Caimano had been
discharged at least in part because of his earlier complaints,
including those made at the March 8 speak-out.5
Accordingly, the
Secretary ordered Brinks to offer Caimano reinstatement; to pay
all back pay and other appropriate compensation, with interest;
and to pay Caimano's costs and expenses incurred in bringing his
complaint. The Secretary remanded the case to the ALJ to
establish a complete remedy consistent with his order.
On remand, the parties agreed to a partial settlement as to
the amount of damages, preserving Brinks's right to appeal its
liability. This appeal on the question of liability followed.
Discussion
I. Standard of Review
Section 405(d) of the STAA, which pertains to judicial
review of the Secretary's orders, states that "[s]uch review
shall be accordance with the provisions of chapter 7 of Title 5,
United States Code," the Administrative Procedure Act ("APA").
SeeCastle Coal & Oil Co. v. Reich, 55 F.3d 41, 44 (2d Cir.
1995). The APA provides that an administrative agency's legal
decisions must be "sustained unless they are found to be
'arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law,' and its findings of fact must be
sustained unless they are 'unsupported by substantial evidence'
in the record as a whole." Id. (quoting 5 U.S.C. § 706(2)(A)).
However, the regulations of the Department of Labor applicable to
STAA cases impose on the Secretary a similar duty of deference to
the findings of the ALJ; the Secretary is required to consider
the ALJ's findings conclusive if they are "supported by
substantial evidence on the record considered as a whole." See
29 C.F.R. § 1978.109(c)(3) ("STAA Rule 109(c)(3)"). Substantial
evidence "means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion." Castle Coal, 55 F.
3d at 45 (quoting NLRB v. Columbian Enameling & Stamping Co., 306
U.S. 292, 300, 59 S. Ct. 501, 505 (1939) (internal quotation
marks omitted)).
While § 405(d)(1) limits this court to reviewing only the
Secretary's order,
[the court] must also determine whether under the STAA Rules
[the Secretary] was bound by the ALJ's findings of fact. If
there was substantial evidence to support the ALJ's
findings, then the Secretary's refusal to treat them as
conclusive was contrary to STAA Rule 109(c)(3) and his
decision must be set aside.
Castle Coal, 55 F.3d at 44. Thus, if we determine that the ALJ's
decision was based on substantial evidence, we must reverse the
Secretary and order that the ALJ's decision be adopted; this is
so even if the Secretary's decision was also based on substantial
evidence.
II. The STAA
Congress passed the Surface Transportation Assistance Act in
order to "combat the 'increasing number of deaths, injuries, and
property damage' resulting from vehicle accidents in the
interstate trucking industry." Yellow Freight Systems, Inc. v.
Reich, 38 F.3d 76, 81 (2d Cir. 1994) (quoting 128 Cong. Rec.
32509, 32510 (1982)). Additionally, Congress sought "'to assure
that employees are not forced to drive unsafe vehicles or commit
unsafe acts,' and to 'provide protection for those employees who
are discharged or discriminated against for exercising their
rights and responsibilities.'" Id. (quoting 128 Cong. Rec.
29192) (1982)). To achieve this latter purpose, Congress
included Section 405 in the STAA. Seeid.
a. Complaint Clause: STAA Section 405(a)
Caimano's contention that he was illegally terminated
because he complained of gas fumes in #201 at the March 8 "speak-out" session relies on section
405(a) of the STAA, 49 U.S.C. app.
§ 2305(a), known as the "complaint clause."
Section 405(a) provides that "[n]o person shall discharge,
discipline, or in any manner discriminate against any employee .
. . because such employee . . . 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." STAA § 405(a), 49 U.S.C. app. §
2305(a).
The ALJ heard the evidence on this claim and found that
there was no "meaningful relationship between [Caimano's]
complaints at the 'speak-out' session and his termination." To
the contrary, the ALJ found that Caimano was discharged for
insubordination on April 21, 1994, when he refused to work in
#201.
This finding was fully supported by the record of the
hearing. The evidence showed that Caimano was fired on April 21
when he refused to go out in #201, after the Brinks management
had undertaken to remedy the lack of a radio set. Indeed, there
was virtually no evidence supporting Caimano's contention that
his discharge was motivated by his having complained of the gas
fumes on March 8. When Caimano raised the issue on March 8,
Brinks undertook to have any problem corrected in the fuel
emissions shop. The issue was never raised again until Caimano
made it a part of his allegations to the Labor Department. The
evidence strongly supports the inference that the problem was
corrected and that the incident had no bearing on his discharge.
Based on the evidence of record, the ALJ's conclusion was well
supported.6
The Secretary asserted that the ALJ had failed to address
the complaint clause question. The Secretary, accordingly, made
findings of his own rather than review the ALJ's findings. While
it is true that the ALJ did not expressly refer to the "complaint
clause," he considered directly the question that arose under
this clause -- whether Caimano was fired because of complaints he
had made. As noted, the ALJ found that this was not the case.
The ALJ found that Caimano was fired "solely on the basis of" his
"insubordination" in refusing to take out #201. This conclusion
was supported by substantial evidence. The Secretary was
therefore required under STAA Rule 109(c)(3) to consider it
conclusive. See 29 C.F.R. § 1978.109(a)(3). It precluded the
contrary determination that Caimano was fired because of prior
complaints. SeeCastle Coal, 55 F.3d at 44. We must vacate the
Secretary's findings and direct the entry of an order based on
the ALJ's well-supported findings that Caimano failed to show
violation of the "complaint clause."
b. Work Refusal Clause: STAA Section 405(b)
The Secretary also found a violation of Section 405(b) of
the STAA, 49 U.S.C. app. § 2305(b), the so-called "work refusal
clause," which bars discrimination against an employee by reason
of his refusal to work in illegal or unsafe conditions. The
pertinent portion of the statute, known as the "because" clause,
prohibits the employer from discharging or discriminating against
an employee for refusing to operate or utilize a vehicle "because
of the employee's reasonable apprehension of serious injury to
himself or the public due to the unsafe condition of such
equipment." STAA § 405(b), 49 U.S.C. app. § 2305(b). The
statute explains its standards as follows:
The 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. In order to qualify for protection under
this subsection, the employee must have sought from his
employer, and have been unable to obtain, correction of
the unsafe condition.
STAA § 405(b), 49 U.S.C. app. § 2305(b). Therefore, in order to
make out his case, Caimano must establish that (i) he refused to
operate #201 because he was apprehensive of an unsafe condition
of the vehicle; (ii) his apprehension was objectively reasonable;
(iii) he sought to have Brinks correct the condition; and (iv)
Brinks failed to do so.
The Secretary found that Caimano had established a violation
on two bases: the lack of a portable radio set and the presence
of gas fumes in the rear compartment of the truck.
1. Portable Radio Set.
The ALJ rejected Caimano's claim relating to the lack of a
portable radio for two reasons: first, that the provision of
portable radio communication between driver and messenger was not
a requirement of the STAA, and, second, that when Caimano
complained of the absence of a radio set, Brinks cured the
problem by offering to provide one. (JA 19) The ALJ therefore
found that, at least following the offer to cure, Caimano's
safety concern was not objectively reasonable. We need not
discuss the first question because, on the record, the ALJ's
finding with respect to the second was clearly supported by
substantial evidence and should thus have been considered
conclusive.
The evidence at the hearing showed that, on hearing
Caimano's complaint of the absence of a radio, Dawson offered to
provide a radio set. When Caimano continued to refuse to work
contending that the radio batteries would run down, Dawson
offered to deliver a fully charged replacement set that would
maintain its charge through the expected course of the run.
Caimano nonetheless continued to refuse. There was thus
undoubtedly substantial support for the ALJ's rejection of
Ciamano's claim. The evidence supported the ALJ's conclusion
that Caimano's presentation of his case as a matter of safety
concerns was a "restructured scenario" and that "in actual fact
he was merely a somewhat disgruntled overly complaining
individual," who was properly fired "solely on the basis of [his]
insubordination."
In order to make out his case under the "because" clause of
Section 405(b), Caimano was required to show both that his
apprehension of an unsafe condition was objectively
"reasonable" and that, despite seeking a correction of the
condition, he was unable to obtain correction. The ALJ's
properly supported finding that Caimano failed to sustain this
burden must be considered conclusive under the standards of the
STAA. The Secretary's decision must therefore be set aside.
2. The fuel fumes.
There was no violation of the "because" clause with respect
to Caimano's belatedly alleged apprehension of fuel fumes in the
rear compartment of #201. On April 21, at the time of his work
refusal, Caimano elaborately and repeatedly raised his concerns
about the lack of radios and other matters, but made no mention
whatsoever of fuel fumes. Brinks could not have responded to
safety concerns that were not called to its attention. The
"because" clause requires that an employee "must have sought from
his employer, and have been unable to obtain, correction of the
unsafe condition." STAA § 405(b).7
Conclusion
Brinks's petition for review is granted. The decision of
the Secretary is vacated. The Secretary is directed to enter
decision in favor of Brinks.
* The Honorable Jane A. Restani, Judge of the
United States
Court of International Trade, sitting by designation.
1 On July 5, 1994, § 405 of the STAA was
renumbered and
reorganized without substantive change and is now codified at 49
U.S.C. § 31105. See Act of July 5, 1994, Pub. L. 103-272, §
1(e), 108 Stat. 745, 990. The parties agree that, because the
events took place prior to July 5, 1994, the old version, 49
U.S.C. app. § 2305, should apply to the instant case.
2Brinks disputes the relevance of the portable
radio set.
It contends this radio was provided to permit communication
between messenger and driver while the messenger was outside the
vehicle -- not to permit the messenger to give driving
directions. It disputes that the driver needed to receive
instructions from the messenger as to where and when to make
turns. Brinks therefore contends the radio was not relevant to
vehicular safety. For reasons explained below, we need not
resolve that dispute.
3 Brinks held such meetings periodically to solicit
employee grievances and to answer employee questions.
4 As alternative bases for his decision, the ALJ
concluded
that Caimano, as a messenger, was not a covered "employee" within
the meaning of the STAA, and that Caimano's conduct was outside
the scope of activity protected by the STAA because it related to
concerns about "outside interference," i.e., security concerns,
as opposed to vehicle safety concerns.
5 The Secretary found that the ALJ had failed to
consider
the portion of § 405 (the "complaint clause") that protects
employees from adverse employment actions based on complaints
about the safety of an employer's vehicle.
6 The Secretary's decision also found that
Caimano's
complaints to a manager prior to April 21 relating to the lack of
a radio set in #201 was a protected activity under the complaint
clause. However, the statute only protects complaints relating
to "a violation of a commercial motor vehicle safety rule,
regulation, standard, or order," 49 U.S.C. app. §2305(a); the
Secretary points to no such rule or regulation convering radio
sets.
7 It is true Caimano had raised a question of fuel
fumes among various complaints at a speak-out session six weeks
prior to the incident. There was evidence that Brinks undertook
to look into the question. Caimano never mentioned it to Brinks
again. In connection with this dispute, the issue was first
raised by Caimano in a letter to the Labor Board after the
submission of his complaint. This letter mentions the speak-out
session only in the context of Caimano's assertion that he was
fired in retaliation for having complained at the speak-out
session. Even then, he made no assertion that fumes were any
part of his reason for refusing to work on April 21. The
evidence makes clear that Caimano's refusal to work on April 21
was unrelated to any issue of fumes, and that his discussions
with Brinks at that time neither directly nor inferentially
included a request for a correction of any such problem.