DIVISION V -- PROTECTED ACTIVITY
SUBDIVISION A -- GENERALLY
[Last updated June 29, 2015]
- V. Protected Activity
- A. Generally
- 1. Element of prima facie case
- 2. Section 31105(a)(1)(A); filing of complaint or instituting of proceeding
- 3. Section 31105(a)(1)(B)(i) - "federal motor safety violation" (formerly referred to as "when" clause)
- 4. Section 31105(a)(1)(B)(ii) - "reasonable apprehension of injury" clause (formerly referred to as "because" clause)
- a. Statutory provision
- b. Reasonable person standard
- c. Communication requirement
- 5. Mixed safety and non-safety reasons for work refusal
- 6. Effect of complainant's compliance with order to work after raising safety complaint
[STAA Digest V A]
PROTECTED ACTIVITY; DISCLOSURE TO A THIRD-PARTY NON-EMPLOYER MIGHT CONSTITUTE PROTECTED ACTIVITY UNDER THE STAA
In Dho-Thomas v. Pacer Energy Marketing , ARB No. 13-051, ALJ Nos. 2012-STA-46, 2012-TSC-1 (ARB May 27, 2015), the ARB – although affirming the ALJ’s dismissal of an STAA claim – declined to endorse the ALJ’s ruling that the Complainant’s disclosures to an employee at the Respondent’s largest customer and trade partner were not covered because, among other reasons, that employee was not the Complainant’s employer or supervisor. The ARB stated: "However, given the requisite broad construction of remedial whistleblower law, we do not rule out entertaining protection for disclosures to third-party non-employers under certain circumstances. Cf. Stone & Webster Eng’g Corp. v. Herman , 115 F.3d 1568, 1575 (11th Cir. 1997) (ERA may protect expression of safety related concern to co-worker when viewed in context: ‘The important question, however, is . . . whether he was acting in furtherance of safety compliance when he spoke to the co-workers.’)."
[STAA Whistleblower Digest V A]
PROTECTED ACTIVITY; FACT THAT REPORTING SAFETY ISSUES IS PART OF TRUCK DRIVER'S DUTIES DOES NOT PREVENT SUCH REPORTS FROM BEING PROTECTED ACTIVITY
In Warren v. Custom Organics , ARB No. 10-092, ALJ No. 2009-STA-30 (ARB Feb. 29, 2012), the ALJ erred as a matter of law in concluding that the Complainant's oral safety complaints were not protected because they were part of his job duties The ARB stated that "[t]he Secretary and Board have consistently found that employees who report safety concerns as part of their job responsibilities engage in protected activity." The ARB noted that one court of appeals had reasoned that quality control inspectors play a crucial role in enforcing NRC regulations and consequently, "[i]n a real sense, every action by quality control inspectors occurs in an NRC proceeding,' because of their duty to enforce NRC regulations." Warren , ARB No. 10-092, USDOL/OALJ Reporter at 7-8, quoting Mackowiak v. University Nuclear Sys., Inc ., 735 F.2d 1159, 1163 (9th Cir. 1984). The ARB held that "[t]his rationale applies with equal force to employees ... whose job duties include monitoring the safety of the trucks they operate."
[STAA Digest V A]
PROTECTED ACTIVITY; REFUSAL TO DISCLOSE NAMES OF COWORKERS WHO WERE ALLEGEDLY PRESSURING THE COMPLAINANT TO VIOLATE THE HOURS OF SERVICE REGULATION DID NOT PREVENT THE COMPLAINANT FROM PREVAIILNG ON A STAA COMPLAINT
In Williams v. Domino's Pizza , ARB No. 09-092, ALJ No. 2008-STA-52 (ARB Jan. 31, 2011), during a meeting to discuss the Complainant's hotline complaint, the Complainant informed a supervisor and a manager that he was being pressured to work outside of the allowable hours of service. He explained the complaint but declined to provide his coworkers' names. The Respondent argued that the Complainant did not assist its investigation of his allegations and therefore, he did not engage in protected activity and was precluded from satisfying his prima facie case. The ARB held that simply refusing to name coworkers who pressured him did not preclude the Complainant from prevailing on a STAA whistleblower complaint.
[STAA Digest V A]
PROTECTED ACTIVITY; CONCURRING OPINION THAT CASE LAW EXTENDS PROTECTION TO THOSE WHO PROVIDE INFORMATION ABOUT VIOLATIONS, BUT NOT TO THOSE WHO ONLY SEEK INFORMATION
In Bucalo v. United Parcel Service , ARB No. 08-087, ALJ No. 2006-TSC-2 (ARB July 30, 2010), the Complainant filed a complaint under both the TSCA and the STAA related to his investigation of a mercury spill at one of the Respondent's sorting facilities. At the end of the evidentiary hearing, the ALJ granted a directed verdict in favor of the Respondent on the STAA complaint based on the conclusion that the Complainant had failed to present "any" evidence regarding a concern of a violation of the Federal Motor Carrier Safety Act. The ARB concluded that the ALJ erred in concluding that the Complainant failed to present evidence of STAA protected activity, quoting testimony of the Complainant to the effect that he had mentioned the STAA when meeting with supervisors on their treatment of the spill. The ARB nonetheless found that record clearly supported a finding that the Respondent suspended and discharged the Complainant for reasons unrelated to the alleged protected activity. One member concurred in the result, but found that the Complainant had not engaged in protected activity because the case law extends protection to those who provide information to employers about violations of the law at issue, but not those who, like the Complainant, merely seek information:
While I agree with my colleagues that that is at least "some" evidence that Bucalo had STAA on his mind, I write to emphasize that that it is not enough to preponderate on the issue of whether he engaged in protected activity. As in Luckie , during the spill incident, Bucalo asked for information out of concern for employee safety. But he did not provide information about a violation of a commercial motor vehicle safety regulation, standard, or order that had to be remedied in a specific way. By merely asking questions, he did not "file a complaint" or "begin a proceeding" within the meaning of the STAA.
[STAA Digest V A]
PROTECTED ACTIVITY; COMPLAINANT'S GOOD FAITH BELIEF THAT THE RESPONDENT WAS FAILING TO CONDUCT AN ADEQUATE INVESTIGATION OF A FIRE IN A SORTING FACILITY WAS NOT PROTECTED ACTIVITY UNDER THE STAA WHEN IT WAS NOT SHOWN TO BE LINKED TO HIGHWAY SAFETY
In Luckie v. United Parcel Service, Inc. , ARB Nos. 05-026, 05-054, ALJ No. 2003-STA-39 (ARB June 29, 2007), the Complainant was the security manager for the Respondent's Alabama district. His primary responsibilities were to direct his staff in resolving customers' claims for lost, stolen, or damaged packages; investigate incidents of employee theft and violations of UPS harassment and integrity policies; and oversee security at the company's facilities, including alarm systems and guard services. Following a package fire on a conveyor belt inside a sorting facility, the Complainant sent one of his investigators who reported back that the fire looked suspicious. The Complainant contacted the manager whose Department was responsible for UPS's compliance with federal hazardous materials statutes and regulations. When the Complainant concluded that the fire was not being properly investigated and that there was potential danger with possibly hazardous packages being unloaded, he contacted his district manager. Noting that an employee need demonstrate only a reasonably perceived violation of the underlying statute, the ALJ found that the Complainant's concerns about the fire were "in good faith," particularly in the wake of 9/11. The ARB agreed that the complaint to the district manager was "in good faith," but stated that the issue was whether the Complainant had a "reasonable belief" that the Respondent's actions were in violation of the STAA or a STAA regulation. Reversing the ALJ's finding that the Complainant had engaged in protected activity, the ARB wrote that "the purpose of the STAA is to promote highway safety, encourage the safe operation and maintenance of commercial motor vehicles, and protect the health and safety of operators. See 128 Cong. Rec. S32,510 (1982). We fail to see how a package fire caused by a possible malfunction of a conveyor belt in a sorting center such as the Montgomery hub could endanger public safety on the highways."
[STAA Whistleblower Digest V A]
PROTECTED ACTIVITY; NON-SAFETY RELATED COMPLAINT ABOUT THE CONDITION OF THE VEHICLE IS NOT PROTECTED UNDER THE STAA
In Gage v. Scarsella Brothers, Inc. , ARB No. 05-095, ALJ No. 2005-STA-21 (ARB Aug. 31, 2006), PDF | HTM the ARB found that subtantial evidence supported the the ALJ finding that the Complainant's non-safety related complaint about a damaged fender was not protected activity under the STAA.
[STAA Whistleblower Digest V A]
REFUSAL TO DRIVE; ANALYSIS UNDER THE "ACTUAL VIOLATION" AND "REASONABLE APPRENSION" PRONGS
The ALJ's Recommended Decision and Order in Harris v. C&N Trucking , 2004-STA-37 (ALJ Sept. 8, 2004), contains an orderly and succinct analysis of a refusal-to-drive based complaint. In Harris , the Complainant expressed concerns about whether the truck was safe to drive because of play in the kingpins. The Respondent (a mechanic who performs repairs on its trucks) checked the truck, found normal wear for the age of truck but no damage or safety issue. The Complainant took the truck to a mechanic when the truck was assigned to him again, confirmed that there was play in the kingpins and at the right spring, and returned the truck and refused to make the delivery for fear that the wheels would fall off. The Respondent informed the Complainant that it was not possible for the wheels to fall off, and when the Complainant continued to refuse to drive, terminated his employment. Subsequently, the truck logged about 80,000 miles without complaint or incident.
The ALJ first analyzed the facts under the "actual violation" provision at 49 U.S.C. 31105(a)(1)(B)(i), and found that although the Complainant had not specified any specific regulations or laws, his complaint seemed to fall within the parameters of DOT regulations. The Complainant's position was essentially that it is a federal mandate that the driver be satisfied as to the working condition of the truck. Nonetheless, the ALJ noted that courts have stressed that the driver's level of satisfaction is not unfettered, but that a complainant must show by a preponderance of the evidence that an actual violation of the regulation would have occurred. Proof of the driver's subjective good faith opinion is not sufficient; a complainant must prove that his assessment of the condition is correct. The ALJ found that the Complainant's evidence in the instant case did not establish protected activity under the "actual violation" prong.
The ALJ then analyzed the facts under the "reasonable apprehension" provision at 49 U.S.C. 31105(1)(B)(ii). In the instant case there was no dispute that the Complainant refused to drive because of his safety concern, that he made the Respondent aware of the concern and sought to have the condition corrected. Thus, the focus was on whether the Complainant's apprehension of the problem was objectively reasonable. Under the reasonable apprehension prong, the Complainant did not need to establish an actual safety defect, but rather sufficient evidence indicating that his assigned vehicle could reasonably be perceived as unsafe. The ALJ summarized that when examining reasonableness under this prong, "relevant factors include the driver's apprehension about past experience, the vehicle's susceptibility to the defect at issue, whether other drivers have driven under similar circumstances, and the driver's experience." Slip op. at 7 (citations omitted). In the instant case, although the Complainant was an experienced driver, the Respondent was also an experienced mechanic and often repaired his own trucks and there was no evidence to support an assumption that the Complainant was more creditable than the Respondent in regard to the performance or safety of the Respondent's vehicles. The ALJ observed that "[t]he Complainant cannot simply insist upon a standard of care for his vehicles that is stricter than the normal or legal standard." Id. (citation omitted). The ALJ also took into account that other subsequent drivers of the same vehicle found no such concerns, and the principle enunciated in Pensyl v. Catalytic, Inc. , 1983-ERA-2 (Sec'y Jan. 13, 1984), that an important factor in determining reasonableness is whether the employer has investigated the hazard, determined the vehicle was safe, and informed the employee of that determination. Thus, the ALJ found that the Complainant had failed to demonstrate that a reasonable person, under the circumstances, would conclude that there was a bona fide danger of accident or injury. The Complainant's subjective good faith opinion alone did not demonstrate an objectively reasonable apprehension of serious injury.
[STAA Digest V A]
PROTECTED ACTIVITY; REFUSAL TO SUBMIT TO A RANDOM DRUG TEST
Refusal to take a random drug test is not protected activity under the whistleblower provision of the STAA. Because it was undisputed that the Complainant was fired for this reason, the ALJ properly dismissed the complaint as a matter of law. Bergman v. Schneider National , ARB No. 03-155, 2004-STA-19 (ARB Apr. 29, 2005).
[STAA Whistleblower Digest V A]
PROTECTED ACTIVITY; MANNER OF RAISING COMPLAINT; COMPLAINANT MAY BE DISCIPLINED FOR NOT FOLLOWING PROCEDURE
In Harrison v. Administrative Review Board , __ F.3d __, No, 03-4428 (2d Cir. Nov. 30, 2004) (case below ARB No. 00-048, ALJ No. 1999-STA-37), the Respondent had a procedure where if a yard switcher observed serious safety defects regarding a trailer, he could "red tag" the defective equipment. Under the Respondent's procedure, however, the switcher was required to obtain authorization from a supervisor before red tagging equipment. The Complainant was disciplined repeatedly for red tagging without authorization. The Second Circuit affirmed DOL's finding that the Complainant was not disciplined because he red tagged equipment, but because he did so without the authorization required under the Respondent's procedures. The court wrote: "The STAA prohibits employers from disciplining employees in retaliation for filing safety complaints; it also authorizes employees to refuse to drive unsafe vehicles. See 49 U.S.C. § 31105(a)(1). But it does not guarantee to employees the entitlement to use their own judgment to determine when to take equipment out of service. * * * An employee's entitlement to submit a complaint about a vehicle's safety would not mean that the employee was similarly entitled to attach the complaint to a rock and throw it through his supervisor's window. The employee's protected right to complain would not prevent Roadway from disciplining the employee for communicating his complaint by rock-throwing." (footnote omitted).
[STAA Whistleblower Digest V A]
PROTECTED ACTIVITY; COMPLAINANT'S USE OF E MAIL AND WEBSITES TO HARASS WITNESSES AND OPPOSING COUNSEL
In Somerson v. Mail Contractors of America Inc. , 2003 STA 11 (ALJ Jan. 10, 2003), Complainant asserted that Mail Contractors of America, Inc., its attorney, and that attorney's law firm, acted contrary to the employee protection provisions of the STAA by filing before the administrative law judge in Case No. 2002 STA 44 filings intended to induce the ALJ to dismiss a whistleblower complaint previously filed by Complainant against Mail Contractors. In that prior complaint, Respondent had filed a motion for a protective order, supporting that motion with copies of anonymous e mails to two witnesses and counsel for Respondent, and websites dedicated to haranguing counsel for Respondent, evidently created by the Complainant. The ALJ in that prior case found that Complainant's intimidation of witnesses and opposing counsel was so severe that he dismissed the claim outright, and certified the facts to the U.S. District Court with a request for appropriate remedy.
The ALJ considering the instant complaint found that it was "completely specious." The ALJ granted the Respondent's motion for summary decision, holding that Respondent's filing of a motion for a protective order was not an adverse employment action (observing, moreover, that Complainant's behavior in the prior ALJ proceeding was not protected activity), and that Respondent's attorney and his law firm were not Complainant's employer.
The ALJ found that Complainant's attorney's response to the motion for summary decision failed to address the legal issues in question and was nothing short of an irrelevant and vicious attack on Respondent's attorneys. The ALJ concluded that Complainant's attorney was more than a bystander to his client's attacks, and therefore reported the behavior to the relevant Board of Professional Responsibility. The ALJ wrote:
Th[e Complainant's attorney's] continuum of attacks, intimidation and harassment under the guise of representing a client constitutes an abuse of the administrative process. It wastes this Office's time and the valuable time of OSHA investigators. It perverts the use of an employee protection statute, the STAA. It violates an attorney's rules of professional responsibility, and constitutes a breech of the duty that an attorney owes his client.
(footnote omitted).
[STAA Whistleblower Digest V A]
COMPLAINTS ABOUT YARD HORSES NOT PROTECTED AS THEY ARE NOT COMMERCIAL MOTOR VEHICLES WHERE THEY DID NOT LEAVE THE TERMINAL YARD
In Harrison v. Roadway Express, Inc. , ARB No. 00 048, ALJ No. 1999 STA 37 (ARB Dec. 31, 2002), Complainant alleged, inter alia , that he engaged in protected activity by "red tagging" (out of service tagging) yard horses. The ARB, however, agreed with the ALJ's finding that because the yard horses were used wholly within the terminal, they were not commercial motor vehicles according to FHA regulations, and, therefore, red tagging of yard horses were not covered by the FMCSR [Federal Motor Carrier Safety Regulations] and, thus, cannot constitute protected activity under the STAA's whistleblower provision. See 49 C.F.R. § 390.5 (definition of "commercial motor vehicle").
V A 1 STAA; when and because clauses
The employee protection provision of the STAA, 49 U.S.C. app. § 2305, prohibits an employer from discharging an employee for refusing to operate a motor vehicle "when such operation constitutes a violation of any Federal rules, regulations, standards or orders applicable to commercial motor vehicle safety" [the "when" clause] or "because of the employee's reasonable apprehension of serious injury to himself or the public due to (the unsafe condition of such equipment" [the "because" clause]. Boone v. TFE, Inc., 90-STA-7 (Sec'y July 17, 1991).
[STAA Digest V A]
PROTECTED ACTIVITY; CONSIDERATION OF POSSIBLE PROTECTED ACTIVITY OTHER THAN THAT EXPRESSLY ALLEGED BY COMPLAINANT
In Shannon v. Consolidated Freightways , 96-STA-15 (ARB Apr. 15, 1998), the ALJ had considered Complainant's protected activity exclusively in the terms alleged by Complainant. The ARB, however, also considered other possible references to protected activity stated in Respondent's "position of discharge" issued in relation to a local National Master Freight Agreement hearing on the discharge.
V A 1 STAA purpose
Section 405(b) of the STAA prohibits discriminatory treatment of employees for refusing to operate a vehicle "when such operation constitutes a violation of any Federal rules, regulations, standards, or orders applicable to commercial motor vehicle safety or health . . . ." 49 U.S.C. app. § 2305(b). Discrimination also is prohibited for refusing to operate 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." Id. This ground for refusal carries the further requirements (1) that the unsafe condition causing the employee's apprehension of injury must be such that a reasonable person, under the circumstances, would perceive a bona fide hazard and (2) that the employee must have sought from his employer, and have been unable to obtain, correction of the unsafe condition.
Reed v. National Minerals Corp., 91-STA-34 (Sec'y July 24, 1992).
[STAA Whistleblower Digest V A 2]
COMPLAINT PRONG; EVIDENCE OF DISOBEDIENCE IS NOT REQUIRED
Evidence of disobedience is not required in establishing coverage under the "complaint" prong of the STAA. Pugh v. Con-way Southern Express , ARB No. 03-142, ALJ No. 2003-STA-27 (ARB May 28, 2004).
[STAA Whistleblower Digest V A 2]
PROTECTED ACTIVITY UNDER SECTION 31105(a)(1)(A); PREPONDERANCE OF THE EVIDENCE; LACK OF CORROBORATING EVIDENCE
The ALJ weighed the testimony concerning whether the Complainant had raised the issue of over hours driving with the dispatcher or in a meeting with supervisors about his failure to deliver a load. The ALJ found that the Complainant did not establish by a preponderance of the evidence that he had made aN internal complaint protected by subsection (A) because no evidence corroborated the Complainant's version of events and because the dispatcher's and supervisors' testimony was as credible as that of the Complainant. The ARB found that the record supported these findings and affirmed the ALJ. Hilburn v. James Boone Trucking , ARB No. 04-104, ALJ No. 2003-STA-45 (ARB Aug. 30, 2005).
[STAA Digest V A 2 a]
PROTECTED ACTIVITY; SUFFICIENCY OF ORAL COMMUNICATION TO PUT RESPONDENT ON NOTICE THAT A COMPLAINT IS BEING FILED
In Jackson v. CPC Logistics , ARB No. 07-006, ALJ No. 2006-STA-4 (ARB Oct. 31, 2008), the Complainant's division manager testified that the Complainant had informed him that another driver was telling the Complainant to log illegally, and that he informed the Complainant the correct way to log and directed the Complainant to tell him if other drivers asked him to do anything illegal. The ALJ observed that "[i]f the internal communications are oral, they must be sufficient to give notice that a complaint is being filed." (citing Clean Harbors Env't Servs., Inc. v. Herman , 146 F.3d 12, 22 (1st Cir. 1998)). The ALJ then found that the Complainant's statements were insufficient to put the Respondent on notice that a complaint was being filed, and therefore the Complainant did not engage in protected activity. The ARB disagreed, finding that the Complainant's statements that he was forced to complete logs in a manner he reasonably believed was illegal constituted protected activity under the Act. The ARB found this error by the ALJ harmless, however, because it affirmed the ALJ's finding that there was a lack of causal connection between the Complainant's termination and the alleged protected activity.
[STAA Whistleblower Digest V A 2 a]
PROTECTED ACTIVITY; "FILING A COMPLAINT" REQUIRES COMMUNICATION TO A SUPERVISOR
In Harrison v. Roadway Express, Inc. , ARB No. 00 048, ALJ No. 1999 STA 37 (ARB Dec. 31, 2002), the ARB reviewed the caselaw relevant to what constitutes "filing a complaint" for purposes of establishing protected activity under the STAA. In conclusion, the ARB stated: "[T]he "filed a complaint" language of STAA § 31105 (a)(1)(A) protects from discrimination an employee who communicates a violation of a commercial motor vehicle regulation, standard or order to any supervisory personnel ." (citation omitted; emphasis added). The ARB then considered whether Complainant's "red tagging" of trailers was a protected activity. Based on the sketchy evidence of record, the ARB concluded that red tagging meant notifying the relay dispatcher and the dock supervisor about any safety problems found with a trailer, obtaining approval for red tagging from Relay, filling out the tag, affixing the tag onto the unsafe trailer, moving the trailer to or from the dock, and, at the end of the shift, turning the bottom half of each tag in to the Relay Department.
The Board then determined that red tagging was not "filing a complaint" and therefore not protected activity. The ARB wrote: "Filling out the tag and affixing it to a defective trailer so that 'others,' i.e., non supervisory personnel, might be made aware of his safety concerns is not a communication to a supervisor about a violation of a commercial motor vehicle regulation, standard or order. Furthermore, turning in the bottom of the tag to management at the end of a shift was only a confirmation of Harrison's earlier oral, or computer generated, notification to his supervisors that he had found unsafe equipment." In other words, "filing a complaint" must be a communication to a supervisor concerning the safety of commercial motor vehicles and not merely a confirmation of an earlier safety complaint.
The ALJ had relied on Schulman v. Clean Harbors Envtl. Servs., Inc. , ARB No. 99 015, ALJ No. 1998 STA 24 (ARB Oct. 18, 1999) (filing of Vehicle Inspection Reports (VIRs) constituted protected activity), in finding that the red tagging was protected activity. The ARB, however, distinguished Schulman on the ground that the purpose of VIRs was to apprize management of equipment defects, and the driver was also required to immediately inform an appropriate management official of defects. In contrast, the record in the instant case demonstrated that red tagging trailers did not constitute filing a complaint because it was not a communication to a supervisor concerning commercial motor vehicle safety.
[STAA Digest V A 2 b]
PROTECTED ACTIVITY; REPORTING FROZEN BRAKES IS PROTECTED ACTIVITY
In Maddin v. Transam Trucking, Inc. , ARB No. 13-031, ALJ No. 2010-STA-20 (ARB Nov. 24, 2014), the Complainant had pulled alongside a ramp when he was unable to locate a station where he had been directed to purchase fuel, and the gas gauge was below "E." The bunk heater was not working. After 10 minutes, he attempted to drive to a gas station, but the trailer's brakes had frozen due to frigid temperatures. The Complainant called road assist. While waiting for a repairman, the Complainant's physical condition deteriorated because the heater was not working. He called in to report that the heat was not working and the status of his physical condition, and to ask when the repairman would arrive. He was told to "hang in there." The Complainant attempted to follow the suggestion, but became fearful that his condition would lead to injury or death. He unhooked the trailer and called his supervisor to state that he was going to seek help at a gas station. The supervisor directed the Complainant not to leave the trailer because the company would be fined, and ordered the Complainant to either drag the trailer with its frozen brakes or stay where he was. The Complainant repeatedly told the supervisor that the heat was not working. The Complainant then drove the truck in search of a gas station and left the trailer unattended. While searching for an open station, he received a call that the repairman had arrived. The Complainant returned to the trailer, where the repairman fixed the brakes but not the heater. The Complainant called his supervisor who stated that he intended to write up the Complainant for a late load. The Complainant pointed out that the shipper had been 12 hours late delivering the load, and the supervisor then stated that he would write up the Complainant for missing the fuel stop. While following the repairman to a gas station, the Complainant saw signs for the gas station he had been intended to use, and noted that he had been given wrong directions. When the Complainant reported the wrong directions and asked he if was still going to be written up for missing the fuel stop, the supervisor told the Complainant that he would be written up instead for abandoning the trailer. Later, the Complainant was terminated for abandoning his load against company policy. The Complainant filed an STAA whistleblower complaint, and after a hearing the ALJ found that the Respondent had violated the STAA.
On appeal, the Respondent contended that the Complainant had not engaged in protected activity when he complained about the frozen brakes on the trailer, arguing that, while it may be a violation to operate a truck with defective brakes, it is not a violation for a truck simply to have frozen brakes. The ARB, however, affirmed the ALJ's finding that the Complainant engaged protected activity under 29 C.F.R. § 1978.102(a) and (b)(1) when he reported frozen brakes on his trailer, and that the Complainant's report was a complaint related to a violation of a commercial motor vehicle safety regulation (49 C.F.R. § 392.7) that prohibits a driver from operating a vehicle unless the driver is satisfied that the brakes, including trailer brakes, are in good working order. The ARB noted that the STAA only requires that the complaint "relate" to a violation of a commercial motor vehicle safety standard and stated that "[u]ncorrected vehicle defects, such as faulty brakes, violate safety regulations and reporting a defective vehicle falls squarely within the definition of protected activity under STAA." USDOL/OALJ Reporter at 6-7.
The Respondent also argued that the ALJ erred in concluding that the Complainant engaged in protected activity under the "refusal to operate a vehicle" prong of the statute. 49 U.S.C. § 31105(a)(1)(B); 29 C.F.R. § 1978(c)(1). The Respondent argued the Complainant could not have hauled the trailer with the truck, so he could not refuse to drive it. Moreover, the Respondent argued that rather than refusing to operate his truck, the Complainant operated his truck in a manner that violated company policy and a direct order from his supervisor. The ALJ had held that by unhooking the trailer, the Complainant refused to operate the truck under the conditions set by his supervisor. The ALJ credited the Complainant's uncontradicted testimony that he had been ordered to drive the truck dragging the trailer with frozen brakes or remain with the trailer on the side of the road, and found that operating the vehicle with inoperable brakes would violate federal regulations and would create a serious threat of accident or injury to the driver. The ALJ concluded that a reasonable person in the Complainant's circumstances would conclude that operating his truck while dragging a trailer with frozen brakes, would establish a real danger of accident or injury. The ARB affirmed the ALJ's finding of protected activity under the refusal to drive provision, but clarified that the provision does not strictly require that the truck not have been driven:
Although we affirm the ALJ's finding of protected activity and generally agree with his analysis, we do not agree with the ALJ's particular holding that "refusal to operate is a sine qua non for finding [that Maddin] engaged in protected activity." The "refusal to operate" clause should not be read so narrowly. Under the facts of this case, driving or operating the truck in violation of Kluck's order to remain with the trailer falls within the ambit of the "refusal to operate" clause of STAA and presented precisely the risk of serious injury that STAA is designed to avoid. Our precedent supports this interpretation. For example, in Beveridge v. Waste Stream Envtl. , ARB No. 97-137, ALJ No. 1997-STA-015, slip op. at 3 (ARB Dec. 23, 1997), the Board held that an employee who refuses to drive an overweight truck does not lose protection under the STAA "refusal to drive" provision by correcting the perceived illegality (by off-loading) and proceeding to drive. Similarly, an employee's refusal to operate a truck over a certain speed under conditions rendering it unsafe or illegal might be protected under the "refusal to operate" clause. Certain refusals or insubordinate acts arising out of the complainant's employment as a truck driver may be covered under the "refusal to operate" clause even where the activity does not strictly constitute a refusal to operate the vehicle.
The ALJ's finding�that by unhooking the trailer "Maddin refused to operate the truck under the conditions set by Mr. Kluck "�is consistent with this reasoning. As explained above, a "refusal to operate" may encompass actually operating a vehicle in a manner intended to minimize danger of harm or violation of law.
USDOL/OALJ Reporter at 7-9 (footnotes omitted)(emphasis as in original).
V A 2 b Need for explicit mention of commercial motor vehicle safety standard
A complaint need not explicitly mention a commercial motor vehicle safety standard to be protected under the STAA's whistleblower provision. The Secretary stated:
As long as the complaint raises safety concerns, the layman who usually will be filing it cannot be expected to cite standards or rules like a trained lawyer. The statute requires only that the complaint "relate" to a violation of a commercial motor vehicle safety standard. Finally, the plain language of section 2305(a) protects all complaints, whenever filed relating to any commercial motor vehicle safety standard. There is no basis in either the Act or its legislative history to read the limitation of section 2305(b)(refusing to operate a vehicle when doing so would violate a Federal safety standard) into subsection (a).
Nix v. Nehi-RC Bottling Company, Inc., 84-STA-1 (Sec'y July 13, 1984), slip op. at 8-9.
[STAA Digest V A 2 b]
PROTECTED ACTIVITY UNDER STAA; PLAINTIFF PRODUCED SUFFICIENT EVIDENCE THAT HE WAS "ABOUT TO REPORT" CONDUCT TO THE DEPARTMENT OF TRANSPORTATION TO AVERT SUMMARY JUDGMENT; UNDER CAT'S PAW THEORY, RETALIATORY ANIMUS OF IMMEDIATE SUPERVISOR MAY BE TRACED TO EXECUTIVE OFFICER THAT MADE THE DECISION TO TERMINATE THE PLAINTIFF
In Capalbo v. Kris-Way Truck Leasing, Inc. , 821 F.Supp.2d 397 (D.Me. Oct. 28, 2011), the plaintiff, a commercial truck driver by trade, worked for defendant, a company providing truck rentals and leasing and contract maintenance services, primarily as a "yard jockey," which generally required moving trailers between truck yards. The plaintiff often worked 14 hour days, and although he frequently notified his employer that he was likely to work more hours than permitted under federal regulations, his employer always told him to finish out his work for the day because it did not have other employees to relieve him. The plaintiff filed a complaint with the Maine Department of Labor (MDOL) concerning inadequate pay for overtime. The defendant was aware of this complaint, investigated the plaintiff's wage concerns, and determined that the plaintiff was being paid appropriately.
Prior to January 2008, the plaintiff performed only yard work, and therefore he was not required by his employer to keep driving logs. However, the plaintiff suffered injuries in an on-the-job accident, and when he returned to work three weeks later, he requested more "over-the-road work" to cut down on his time in the yard, to which the defendant agreed. Subsequently, the plaintiff kept driving logs for his "over the road work," but did not turn the logs in regularly. After auditing the defendant in May 2008, the Department of Transportation (DOT) audited a company that contracted with the defendant in August 2008, at which time the plaintiff's supervisor realized that he did not have driving logs for the plaintiff's August 2008 over-the-road work. When questioned by his supervisor, the plaintiff claimed that he already turned them in to the defendant's log drop box.
The plaintiff's supervisor reported to the Vice President of Operations (VPO) that the plaintiff was the only driver that was not regularly submitting driving logs, that he could not find any August 2008 logs for the plaintiff, and that the plaintiff had had problems accurately reporting his hours in the past (although the plaintiff's disciplinary record showed no evidence of this). When the plaintiff, his supervisor, and the VPO met to discuss the log issue, the plaintiff produced a complete logbook, which, after questioning, he admitted that he had recreated from memory. The plaintiff claimed that his supervisor had instructed him to recreate his driving logs to the best of his memory, but because recreating and falsifying logs violates federal law, the VPO terminated the plaintiff's employment for attempting to pass of the inaccurate logs as legitimate.
The plaintiff alleged retaliation in violation of the Surface Transportation Assistance Act (STAA), 49 U.S.C. § 31105, alleging that he was fired because he was "about to report" violations to DOT and "about to cooperate" with DOT's pending audit; because he filed a complaint with MDOL; because he complained to his supervisor about working excessive hours; and because he refused his supervisor's instructions to recreate his log books.
As to the plaintiff's theory that he was "about to report" violations or "about to cooperate" with the DOT, the defendant argued in its summary judgment motion that STAA's "about to file" provision should be interpreted in the same way as the "nearly identical provision in the Seaman's Protection Act," and therefore asserted that the plaintiff must prove that he was "on the verge" of reporting a violation, and that the employer was aware that he was about to do so. Comparing the text of Seaman's Protect Act provision to the text of STAA, the Court disagreed, and found that the STAA provision "is devoid of language requiring that an employee actually have filed, or even have been on the verge of filing, a report or complaint." Instead, STAA protects employees when an employer "perceives that the employee has filed or is about to file a complaint or has begun or is about to begin a proceeding related to a violation[.]" 49 U.S.C. § 31105(a)(1)(A)(ii) (emphasis added). Given the evidence in the record, the Court then found that a reasonable trier of fact could find that the plaintiff's supervisor perceived that the plaintiff had complained, or was about to complain, to the DOT, and therefore denied summary judgment on the plaintiff's first theory.
The court swiftly rejected the plaintiff's second and third theories of protected activity under STAA � filing a wage complaint with MDOL and complaining about excessive hours � and granted summary judgment for the employer with regard to those two theories of liability. However, the court found that plaintiff's fourth theory " that he was fired because he refused to illegally recreate his logbook and deceive DOT auditors " was not "so inherently incredible as to present no triable issue as to whether he engaged in protected activity," and denied summary judgment as to the fourth theory of liability. In so doing, the court rejected the defendant's argument that the defendant was not liable because the VPO, not the plaintiff's supervisor, made the decision to terminate his employment. The court explained that the supervisor's retaliatory animus could be traced to the VPO via a "cat's paw" theory of liability, as [a]n employer may be held liable if the decision-maker who discharged the plaintiff merely acted as a rubber stamp, or the "cat's paw," for a subordinate employee's prejudice, even if the decision-maker lacked discriminatory intent."
GRIEVANCE PROCEEDING MUST RELATE TO SAFETY VIOLATION FOR TESTIMONY GIVEN AT SUCH PROCEEDING TO BE PROTECTED UNDER THE STAA
[STAA Digest V A 2 b and V B 1 c ii]
In Yellow Freight System, Inc. v. Reich , No. 95-4135 (6th Cir. Dec. 16, 1996)(unpublished decision available at 1996 U.S. App. LEXIS 33233)(case below, 89-STA-7), the court rejected the Secretary's determination that a grievance proceeding of a co-worker at which Complainant testified, was one relating to a violation of a commercial motor vehicle safety rule, where the subject of the proceeding was to determine whether the co-worker had or had not provided medical documentation for his absence after being on the sick board for an extended period, rather than the co-worker's fitness for driving. See 49 U.S.C. app. § 2305(a) (Editor's note: this provision has been re-codified at 49 U.S.C. § 31105).
The court interpreted the Secretary's theory in the matter as follows: that drivers who placed themselves on the sick board who are required to provide medical substantiation of their illness may be pressured to return to work before it is safe for them to do so; in their testimony at the grievance proceeding, the co-worker and Complainant challenged the medical substantiation requirement as unreasonable strict; this challenge turned the grievance proceeding into one relating to a possible safety violation.
The court found, inter alia , that there was no evidence that the medical substantiation requirement was challenged at the grievance proceeding, and that "any relationship between the grievance proceeding and a possible safety rule violation was far too attenuated to trigger the protections of § 405(a)."
V A 2 b "Relating to" broadly construed
The STAA's statutory "relating to" language does not restrict protection to participation in STAA proceedings. Rather, protection extends to employees who have filed any complaint or instituted or testified in any proceedings relating to a violation of a spectrum of safety criteria. The language contemplates proceedings arising under Department of Transportation, other Federal, and state laws, and could encompass arbitration and involve an employer's safety rules.
Moyer v. Yellow Freight System, Inc., 89-STA-7 (Sec'y Sept. 27, 1990) (order denying motion to vacate and reopen).
V A 2 b Complaint need only to relate to safety standard
A STAA whistleblower complaint need not explicitly mention a commercial motor vehicle safety standard to be protected. "As long as the complaint raises safety concerns, the layman who usually will be filing it cannot be expected to cite standards or rules like a trained lawyer. The statute requires only that the complaint 'relate' to a violation of a commercial motor vehicle safety standard. Finally, the plain language of section 2305(a) protects all complaints, whenever filed relating to any commercial motor vehicle safety standard. There is no basis in either the Act or its legislative history to read the limitation of section 2305(b) (refusing to operate a vehicle when doing so would violation a Federal safety standard) into subsection (a)." Nix v. Nehi-RC Bottling Co., Inc., 84-STA-1 (Sec'y July 13, 1984).
V A 2 b Complaint did not allege an underlying violation of a motor safety vehicle standard
In Perrine v. Poole Truck Line, Inc., 85-STA-13 (Sec'y Mar. 11, 1986), the Secretary adopted the ALJ's recommendation that the complaint be dismissed because Complainant did not engage in protected activity when he wrote to Respondent's president concerning safety conditions in relation to the width of Respondent's scales at one terminal.
The ALJ had noted that a pro se Complainant cannot be expected to cite standards or rules like a trained lawyer but that the statute requires that the complaint "relate" to a violation of a commercial motor safety vehicle standard. He wrote:
In this case, Complainant did not cite a specific motor safety vehicle standard which has been violated. That is not necessary. However, a review of the Department of Transportation Federal Motor Carrier Safety Regulations 49 C.F.R. §325 et seq. did not bring to light any regulation or standard which would apply to the facts of this case. . . .
In short, there is no evidence in this record that [Complainant's] complaint relates to a motor vehicle safety standard applicable to the facts of this case. Although, it is not necessary that a complaint expressly cite the specific motor vehicle standard which it is alleged has been violated, the complaint must "relate" to a violation of a commercial motor vehicle safety standard. That prerequisite to finding a violation of Section 405 has not been met. Accordingly, [Complainant's] action in filing the complaint in question cannot be considered protected activity under the statute. The complaint should be dismissed for that reason.
Perrine v. Poole Truck Line, Inc., 85-STA-13 (ALJ Jan. 9, 1986).
V A 2 b STAA complaint need only be related to a safety violation
Where the complainant was discussing his displeasure over having to work excessive hours over the CB radio, his supervisor's interjection into the conversation upon overhearing the conversation transformed the conversation into a complaint to the employer. Moravec v. HC & M Transportation, Inc., 90-STA-44 (Sec'y July 11, 1991) (order of remand). Under the STAA, an employee's complaint is protected if it is "related" to a safety violation. Monteer v. Milky Way Transport Company, Inc., 90-STA-9 (Sec'y July 31, 1990), slip op. at 8, appeal docketed, No. 90-3943 (6th Cir. Oct. 26, 1990). Although the complainant did not refer in his conversation to the hours of service regulation, and his uppermost concern might have been that his assignment schedule would interfere with plans for his wife's birthday, his statements concerned workplace conditions subject to the Federal service hours regulation (49 C.F.R. § 395.3(b)(1)), providing those statements with sufficient nexus between complaint and a safety violation to render his statement cognizable under 49 U.S.C. § 2305(a). STAA complaints need not refer to particular safety standards in order to be protected. See Davis v. H.R. Hill, Inc., 86-STA-18 (Sec'y Mar. 1987), slip op. at 5-6; Nix v. Nehi-R.C. Bottling Co., 84-STA-1 (Sec'y July 31, 1984), slip op. at 8, aff'd, Nehi-RC Bottling Co., Inc. v. Donovan, No. 89-1951 (4th Cir. 1985).
[Editor's Note: In her Decision and Order on Remand, the Secretary found that "during the CB conversation, [the complainant] objected having to work longer hours than anticipated and that he already had logged more hours than legally permissible." This finding is inconsistent with the tenor of the decision and is directly contrary to the ALJ's finding ( see Moravec v. HC & M Transportation, Inc., 90-STA-44 (ALJ Sept. 12, 1991) (decision and order on remand). This factual inconsistency is not reconciled by the Secretary's final decision (Sec'y Jan. 6, 1992). Given the entire proceeding, it may be that the quoted language was the Secretary's inartful way of saying that the number of hours complained of by the complainant indicated that he had worked more than legally permitted.]
In Ulrich v. Swift Transportation Corp. , ARB No. 11-016, ALJ No. 2010-STA-41 (ARB Mar. 27, 2012), the ARB affirmed the ALJ's dismissal of the Complainant's STAA whistleblower complaint on the ground that the Complainant failed to establish that he engaged in protected activity by filing a complaint related to a violation of a regulation, standard, or order under 49 U.S.C.A. § 31105(a)(1)(A) (complaint clause). The Complainant had contacted police to report that a discrepancy between the weight listed on the bill of lading and the computer dispatch might be related to drugs, explosives, people or other illegal contraband loaded into the dispatched trailer which had originated in Mexico.
The ARB found that the record supported the ALJ's finding that the Complainant was not objectively reasonable in believing that his assigned trailer contained explosives, drugs, or people where there was no direct evidence of such; the Complainant made giant leaps of logic; weight discrepancies are a common occurrence in the trucking industry; it was undisputed that the truck complied with all federal and state standards at the time; and although the trailer did not have a high security seal, there was no evidence that the tin seal had been tampered with or manipulated. The ARB stated that neither the fact that the load originated in Mexico nor that the Complainant allegedly overheard a conversation between two drivers about a drug bust with the Respondent's trucks, served to make the Complainant's belief about drugs, explosives, or people in his truck reasonable.
V A 2 c Actual violation need not be proved
Protection under the whistleblower provision of the STAA is not dependent on actually proving a violation. Yellow Freight System, Inc. v. Martin, 954. F.2d 353, 356-57 (6th Cir. 1992). Lajoie v. Environmental Management Systems, Inc., 90-STA-31 (Sec'y Oct. 27, 1992).
[STAA Digest V A 2 c]
PROTECTED ACTIVITY; REFUSAL TO DRIVE
In Jackson v. Protein Express , 95-STA-38 (ARB Jan. 9, 1997), the Board emphasized that a refusal to drive is protected activity under the STAA if the driver's perception of the unsafe condition was reasonable at the time, even if subsequent mechanical inspection revealed no actual safety defect. See 49 U.S.C. § 31105(a)(1)(A)(2) (reasonable apprehension of serious injury). Thus, in the instant case the fact that the truck had been inspected with no finding of a problem, and driven for 10 days following Complainant's work refusal without incident, did not deprive Complainant's work refusal protection given the facts available to Complainant at the time he refused to drive.
V A 2 c Section 405(a) complaint not dependent on underlying complaint successfully proving a federal violation
The Secretary correctly interpreted section 405(a) of the STAA in concluding that a complainant's protection under section 405(a) for testifying at the grievance proceeding of a coworker is not dependent on whether the coworker was actually successful in proving a violation of a federal safety provision. "The primary consideration is not the outcome of the underlying grievance hearing, but whether the proceeding is based upon possible safety violations." This interpretation does not posit that the actual facts surrounding the grievance proceeding are irrelevant to section 405(a) protection. Yellow Freight System, Inc. v. Martin, 954 F.2d 353 (6th Cir. 1992).
V a 2 c STAA complaint relating to violation of DOT regulations; need not ultimately be determined to have merit
Where the complainant in an STAA action makes complaints to his supervisor "relating to" alleged violations of Department of Transportation regulations, these complaints constitute protected activity under the STAA. A complaint is protected under section 405(a) even if the alleged violation complained about ultimately is determined to be meritless. Allen v. Revco D.S., Inc., 91-STA-9 (Sec'y Sept. 24, 1991), slip op. at 6, n.3.
Hernandez v. Guardian Purchasing Co., 91-STA-31 (Sec'y June 4,1992).
V A 2 c Reasonable belief that complaint was about safety hazard; impropriety of granting summary decision against Complainant whose asserted protected activity was refusal to plead guilty to overload citation
In Schuler v. M & P Contracting, Inc., 94-STA- 14 (Sec'y Dec. 15, 1994), the ALJ recommended dismissal of the complaint on the ground that the Complainant did not engage in protected activity when he refused to plead guilty to a state citation for operating an overweight motor vehicle. Although the Secretary agreed with the ALJ that to be protected, an employee's complaint must relate to a safety rule, regulation, standard or order, the Secretary noted that he has held that, to be protected, a complainant need only show that he reasonably believed he was complaining about a safety hazard.
Since it was not clear from the record why Complainant refused to plead guilty to the overload citation, the Secretary remanded the case instructing that the ALJ should give Complainant an opportunity to show that his refusal to plead guilty to the overload citation was based in part on safety concerns.
V A 2 c Safety complaint protected under STAA even if ultimately found meritless
A complaint related to a safety violation is protected under section 2305(a) of the STAA even if the complaint is ultimately determined to be meritless. Barr v. ACW Truck Lines, Inc., 91- STA-42 (Sec'y Apr. 22, 1992).
V A 2 c Scope of STAA § 2305(a); Complaint related to safety violation protected even if meritless
Any complaint related to a safety violation is protected under section 2305(a) of the STAA, which prohibits discharge of an employee "because such employee has filed any complaint relating to a violation of a commercial motor vehicle safety rule, [or] regulation..." 49 U.S.C. app. § 2305(a), even if the complaint is ultimately determined to be meritless. Allen v. Revco D.S., Inc., 91-STA-9 (Sec'y Sept. 24, 1991), citing Stack v. Preston Trucking Co. , 86-STA-22 (Sec'y Feb. 26, 1987).
V A 2 c Whether safety violation must be established
In Doyle v. Rich Transport, Inc., 93-STA-17 (Sec'y Apr. 1, 1994), the Secretary noted that, at least in the Second Circuit, it must be shown that the condition complained about actually violated a federal safety regulation to establish a section 405(b) complaint. See Yellow Freight System, Inc. v. Martin, 983 F.2d 1195 (2d Cir. 1993). Nonetheless, the Sixth Circuit has agreed with the Secretary's interpretation that section 405(a) protection is not dependent on actually proving a violation of a federal safety provision. See Yellow Freight System, Inc., v. Martin, 954 F.2d 353, 357 (6th Cir. 1992). Rather, it is sufficient to show reasonable belief in a safety hazards.
V A 2 c Validity of underlying claim not required
In cases involving participation, e.g., making complaints or offering testimony, the discriminatee need not prove the validity of the underlying claim in order to prevail.
Moyer v. Yellow Freight System, Inc., 89-STA-7 (Sec'y Sept. 27, 1990) (order denying motion to vacate and reopen).
V. A. 2. d. Resolved safety complaints
In Webb v. Hickory Springs, Inc., 94-STA-20 (Sec'y Aug. 5, 1994), the evidence established that Complainant was fatigued, and that he engaged in protected activity when he complained about fatigue and refused to drive while fatigued. Complainant "refusal" came in the form of inadvertently falling asleep.
Nonetheless, the record revealed that these activities did not motivate Respondent to suspend the Complainant. Specifically, the person who suspended Complainant did not even know about Complainant being fatigued until well after he had made the suspension decision. Thus, there was no prima facie showing of discrimination under section 405(a).
Based on credibility of the witnesses, it was found in regard to the work refusal issue that the Respondent suspended the Complainant for insubordination rather than protected activity.
RESPONDENT'S ADDRESSING OF SAFETY CONCERN
[STAA Digest V A 2 d]
In Patey v. Sinclair Oil Corp ., 96-STA-20 (ALJ Aug. 2, 1996), adopted (ARB Nov. 12, 1996), Complainant expressed concerns about the method for refueling locomotives. Respondent fully addressed those concerns, but Complainant still felt uneasy about the refueling and informed Respondent that he did not wish to do it in the future, after which Complainant was discharged. The ALJ found that Complainant's valid safety concerns had been corrected by Respondent, and that his other concerns were simply apprehension on the part of Complainant and did not constitute protected activity.
V. A. 2. d. Resolved safety complaints
In Webb v. Hickory Springs, Inc., 94-STA-20 (Sec'y Aug. 5, 1994), the evidence established that Complainant was fatigued, and that he engaged in protected activity when he complained about fatigue and refused to drive while fatigued. Complainant "refusal" came in the form of inadvertently falling asleep.
Nonetheless, the record revealed that these activities did not motivate Respondent to suspend the Complainant. Specifically, the person who suspended Complainant did not even know about Complainant being fatigued until well after he had made the suspension decision. Thus, there was no prima facie showing of discrimination under section 405(a).
Based on credibility of the witnesses, it was found in regard to the work refusal issue that the Respondent suspended the Complainant for insubordination rather than protected activity.
[ Editor's note : Prior to recodification, 29 USC § 2305(b) was frequently referred to as having a "when" or "federal violation" clause, and a "because" or "reasonable apprehension" clause. New section 31105(a)(1)(B) leads into both clauses with a "because", with the result that the old shorthand way of referencing the clauses can no longer be used.]
[STAA Digest V A 3]
ARB REMANDS CASE FOR FURTHER FACTFINDING BY ALJ WHERE ELEVENTH CIRCUIT HAD REJECTED ARB'S HOLDING THAT THE STAA PROTECTS A REFUSAL TO DRIVE BASED ON A REASONABLE BELIEF THAT DRIVING WOULD VIOLATE A SAFETY LAW; COURT INSTEAD HELD THAT THE STAA REQUIRES AN ACTUAL VIOLATION
In Ass't Sec'y & Bailey v. Koch Foods, LLC , ARB No. 14-041, ALJ No. 2008-STA-61 (ARB May 30, 2014), the 11th Circuit The Eleventh Circuit disagreed with the ARB's conclusion that STAA, 49 U.S.C.A. � 31105(a)(1)(B)(i) protects an employee's refusal to operate a motor vehicle where the employee reasonably believes at the time that operation of the vehicle would violate a pertinent safety law. The court held instead that Section 31105(a)(1)(B)(i) covers "only those situations where the record shows that operation of a motor vehicle would result in the violation of a regulation, standard, or order related to commercial motor vehicle safety, health, or security." Koch Foods, Inc. v. Secretary, U.S. Dept. of Labor , 712 F.3d 476 (11th Cir. 2013). On remand, the ARB stated that the 11th Circuit's decision was the law of the case), and therefore it was necessary to remand for the ALJ to determine whether an actual violation would have occurred in this case had the Complainant hauled the trailer that he believed was overweight. The ARB noted that the 11 Circuit's decision was at odds with the 2d Circuit's ruling in Yellow Freight Sys. Inc. v. Martin , 983 F.2d 1195 (2d Cir. 1993). The ARB also directed the ALJ to clarify whether the Complainant had asserted whistleblower protection under other provisions of the STAA and, if so, the ALJ's rulings on those provisions.
[STAA Digest V A 3]
REFUSAL TO DRIVE PROVISION AT 49 U.S.C. � 31105(a)(1)(B)(i) IS TRIGGERED ONLY WHEN OPERATION OF THE MOTOR VEHICLE WOULD RESULT IN AN ACTUAL VIOLATION OF LAW
In Koch Foods, Inc. v. USDOL , __ F.3d__, No. 11-14850 (11th Cir. Mar. 11, 2013) (case below ARB No 10-001, ALJ No. 2008-STA-61), the court addressed the issue of whether protection under 49 U.S.C. � 31105(a)(1)(B)(i) is triggered only when operation of the motor vehicle would result in an actual violation of law? Or may the ARB interpret the provision to cover circumstances in which a driver reasonably but incorrectly believes that operation would result in a legal violation? Slip op. at 2 (emphasis as in original). The court stated: After reviewing the plain language of the provision and its statutory context, as well as the relevant statutory history, we hold that the phrase "refuses to operate a vehicle because . . . the operation violates a regulation, standard, or order, as used in 49 U.S.C. � 31105(a)(1)(B)(i), refers only to circumstances in which operation would result in an actual violation of law.� Id. at 3 (emphasis as in original).
[STAA Digest V A 3]
PROTECTED ACTIVITY; REFUSAL TO DRIVE BASED ON EMPLOYEE'S OBJECTIVELY AND SUBJECTIVELY REASONABLE BELIEF THAT OPERATION OF THE VEHICLE WOULD ACTUALLY VIOLATE SAFETY LAWS
In Ass't Sec'y & Bailey v. Koch Foods, LLC , ARB No 10-001, ALJ No. 2008-STA-61 (ARB Sept. 30, 2011), the Respondent purchased three new trailers for hauling chickens. The Complainant learned that in several instances those trailers had exceeded state and federal weight limits. He had himself pulled a new trailer that exceeded the limit. He had not been told by the Respondent that instructions had been given to the chicken catchers to lighten the loads. During a subsequent shift, he arrived at a farm where one of the new trailers had been pre-loaded. Concerned that it was overweight, he decided not to haul that new trailer, but rather waited until the trailer he was delivering was loaded. A co-worker drove the pre-loaded trailer. The next day he was suspended for refusing to haul the trailer, and then terminated upon his return from the suspension for trying to hold up production. The Complainant's supervisor testified that the weight ticket showed that the new trailer had not been overweight.
The ALJ found that the Complainant's refusal to drive was protected under 49 U.S.C. § 321105(a)(1)(B)(i), which protects a refusal "to operate a vehicle because . . . the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety, health, or security."
On appeal, the Respondent argued that the ALJ erred in finding protected activity under Section 321105(a)(1)(B)(i) because there would not have been an actual violation of any federal law because the trailer was not overweight. The ALJ had found that the Complainant was not required to prove that there would have been an actual violation; but the ALJ cited decisions that were not decided under Section 321105(a)(1)(B)(i). On appeal, the Respondent cited other decisions indicating that an actual violation must be show under this refusal to drive provision. The ARB stated that the statute does not use the word "actual," that it had not previously construed the provision so strictly, and that a literal reading of the provision would lead to an absurd result. The Office of the Solicitor argued that the refusal to drive provision protects refusals based on a reasonable belief that the operation of the truck would violate a safety violation. The ARB, therefore, reviewed the language of the statute, statutory history, caselaw, and similar whistleblower statutes. The ARB ruled:
Where a statute is unclear, we are permitted to provide a reasonable interpretation of statutes we are charged with adjudicating. In this case, we conclude that the protection afforded under Section 31105(a)(1)(B)(i) also includes refusals where the operation of a vehicle would actually violate safety laws under the employee's reasonable belief of the facts at the time he refuses to operate a vehicle, and that the reasonableness of the refusal must be subjectively and objectively determined. Under the environmental whistleblower statutes, the "subjective" component of the reasonable belief test is satisfied in the same manner as it was when it was identified as the "good faith" test � by showing that the employee actually believed that the conduct he complained of constituted a violation of relevant law. ... An objective reasonable belief is evaluated based on the knowledge available to a reasonable person in the same factual circumstances with the same training and experience as Complainant. ... For example, in recognizing the right of an employee to refuse to work "when he has a good faith, reasonable belief that working conditions are unsafe or unhealthful," the Secretary of Labor distinguished "reasonable belief" by explaining: "Whether the belief is reasonable depends on the knowledge available to a reasonable man in the circumstances with the employee's training and experience."...
USDOL/OALJ Reporter at 9-10 (footnotes and citations omitted). Under these standards, the ARB affirmed the ALJ's finding that the Complainant had engaged in protected activity.
[STAA Whistleblower Digest V A 3]
PROTECTED ACTIVITY; PROTECTION NOT LIMITED TO FEDERAL LAWS, BUT NONETHELESS MUST RELATE TO SPECIFIC REGULATION, STANDARD OR ORDER
The STAA whistleblower provision protection extends beyond just complaints relating to federal motor vehicle safety regulations, but any relevant motor vehicle regulation, standard or order. Chapman v. Heartland Express of Iowa , ARB No. 02 030, ALJ No. 2001 STA 35 (ARB Aug. 28, 2003) (as reissued under Sept. 9, 2003 errata) (general complaints about fatigue were not protected as they did not relate to a violation of any particular motor vehicle regulation, standard or order).
[STAA Whistleblower Digest V A 3 and 4]
ABSENCE OF HIGHWAY USE TAX STICKER DOES NOT IMPLICATE SAFETY, BUT TAX ISSUES
In Forrest v. Transwood Logistics, Inc. , 2001-STA-43 (ALJ Aug. 7, 2001), the ALJ found that, although the truck Complainant was driving did not have a New York Highway Use Tax sticker, the absence of such a sticker was not a safety matter as alleged by Complainant, but rather related to a tax and not safety. Therefore this issue did not support a whistleblower complaint under section 31105(a)(1)(B)(i). The ALJ also found that no reasonable person could conclude that absence of a HUT sticker established a real danger of accident, injury or serious impairment to health, and therefore a whistleblower complaint under section 31105(a)(1)(B)(ii) was not supported.
[STAA Digest V A 3 a]
FEDERAL MOTOR SAFETY VIOLATION; COVERAGE OF EMPLOYEE WHO CAUSES ILLEGALITY TO BE CORRECTED
In Beveridge v. Waste Stream Environmental, Inc. , 97-STA-15 (ARB Dec. 23, 1997), the ARB rejected the ALJ's conclusion that there is a distinction under the statutory provision covering a "federal motor safety violation" -- 49 U.S.C. § 31105(a)(1)(B)(i) -- between the inaction of an employee, which would be covered, and the action of an employee, which would not be covered. The ARB found that this reasoning would result in a refusal to drive an overweight vehicle not being covered if the load was reduced by the employee to a legally acceptable level and then delivered. The ARB held that "[a]n employee who refuses to drive illegally does not lose his STAA protection by correcting the illegality and then proceeding to drive." Slip op. at 3.
[STAA Digest V A 3 a]
FEDERAL MOTOR SAFETY VIOLATION; REFERENCE TO LAWS OF LOCAL JURISDICTION
The statutory provision covering a "federal motor safety violation" -- 49 U.S.C. § 31105(a)(1)(B)(i) -- incorporates the laws of the jurisdiction in which the vehicle is being operated. See 49 C.F.R. § 392.2. Beveridge v. Waste Stream Environmental, Inc. , 97-STA-15 (ARB Dec. 23, 1997) (Complainant shortloaded his vehicle because he did not accept Employer's explanation that it had contacted the pertinent state agency and been told that it could continue to operate its vehicle because; that overweight registrations had not been sent out because of administrative backlogs; Complainant believed he needed physical possession of sticker to operate an overweight vehicle; ARB found that under state law, the registration need not be carried, but merely available).
REFUSAL TO DRIVE; REQUIREMENT OF ACTUAL REFUSAL
[STAA Digest V A 3 a]
An employee must actually refuse to operate a vehicle to be protected under the refusal to drive provision of the STAA. 49 U.S.C. § 31105(a)(1)(B). Williams v. CMS Transportation Services, Inc., 94-STA-5 (Sec'y Oct. 25, 1995).
In Minne v. Star Air, Inc. , ARB No. 05-005, ALJ No. 2004-STA-26 (ARB Oct. 31, 2007), the ALJ concluded that the Complainants ceased driving "because they believed that the trucks that they were assigned to drive were not in compliance with the applicable regulations."� The ALJ found that this perception was "justified," although it "may have been mistaken."� Having made these two findings, the ALJ appeared to have concluded that the refusals based upon this justified perception constituted "protected activity."� The ARB, thus, concluded that the ALJ appeared to have applied the standard applicable to a complaint brought under the STAA's complaint provision, 49 U.S.C.A. § 31105(a)(1)(A).� However, the Complainants brought their complaint under the (B)(i) refusal to drive provision.� The ARB observed that it had repeatedly held that under the refusal provision, a complainant must prove that an actual violation would have occurred, and a reasonable and good faith belief is not enough.� Because the ALJ had not made a clear finding as to whether, at the time of the refusal to drive, driving would have violated an applicable regulation, the ARB remanded for a determination on this issue.
In a footnote, the ARB observed:
Where a complainant brings his complaint only under the STAA's refusal provision, we must not find a violation under the complaint provision unless the employer had notice of or actually litigated a section (a) complaint. See Yellow Freight Sys., Inc. v. Martin , 954 F.2d 353, 356-57 (6th Cir. 1992) (where complainant raised only a refusal claim under section (b) and not a complaint claim under section (a), Secretary violated Due Process by finding that employer violated section (a)). There is no indication in the record that Minne and Privott made a section (a) complaint, or that such a complaint was litigated at the hearing. Moreover, there is no indication in the record that Minne and Privott engaged in or argued that they engaged in a refusal protected under section (B)(ii), despite their apparent attempt to recast their complaint on appeal. See Complainants' Brief (CB) at 5 (arguing that conditions at Star put Minne and Privott in "extreme danger"), 9-10 (citing to (B)(ii)). Therefore, we consider only whether Minne and Privott engaged in activity protected under the (B)(i) refusal provision.
USDOL/OALJ Reporter at n.9.
V A 3 b Requirement of actual violation under when clause
Refusing to drive when the contemplated run would cause a violation of a Federal motor carrier safety regulation is a protected activity under STAA subsection 405(a)(1)(B)(i) if the driver informed his employer of the safety basis for the refusal.
Paquin v. J.B. Hunt Transport, Inc., 93-STA-44 (Sec'y July 19, 1994), slip op. at 5; Asst Sec. and Waldrep v. Performance Transport, Inc., 93-STA-23 (Sec'y Apr. 6, 1994), slip op. at 8 (complainant's remark to employer about no longer driving "illegally" sufficient to establish protected refusal to drive).
To come within the protection of this provision, the complainant must also show that an actual violation of a regulation would have occurred; it is not sufficient that the driver had a reasonable belief about a violation.
Yellow Freight System, Inc. v. Reich, 38 F.3d 76 (2d Cir. 1994); Robinson v. Duff Truck Line, Inc., 86-STA-3 (Sec'y Mar. 6, 1987), slip op. at 12-13, aff'd, Duff Truck Line, Inc. v. Brock, 848 F.2d 189 (6th Cir. 1988)(per curiam) (unpublished decision available at 1988 U.S. App. LEXIS 9164); Brame v. Consolidated Freightways, 90-STA-20 (Sec'y June 17, 1992), slip op. at 3.
In Nolan v. AC Express, 92-STA-37 (Sec'y Jan. 17, 1995), where there was evidence that to comply with a company directive that drivers must reach Cleveland from Buffalo at a certain hour, drivers would have to speed or skip the DOT required pre-trip inspection, the Complainant established that he engaged in protected activity under section 405(a)(1)(B)(i).
SECTION 31105(a)(1)(B)(I) REQUIRES SHOWING OF ACTUAL VIOLATION
[STAA Digest V A 3 b]
A STAA complaint under 49 U.S.C. § 31105(a)(1)(B)(I) requires that a complainant show an actual violation of a commercial motor vehicle safety regulation; it is not sufficient that the driver has a reasonable good faith belief about a violation. Cook v. Kidimula International, Inc. , 95-STA- 44 (Sec'y Mar. 12, 1996).
V A 3 b Requirement of actual violation under 31105(a)(1)(B)(i)
In order to prevail under 49 U.S.C. § 31105(a)(1)(B)(i), the complainant must prove by a preponderance of the evidence that an actual violation of a regulation, standard, or order of the United States would have in fact occurred had the complainant operated the vehicle. The complainant's good faith belief that the vehicle was unsafe in violation of a safety regulation is not sufficient, standing alone, to prove a violation under section 31105(a)(1)(B)(i).
Brunner v. Dunn's Tree Service, 94-STA-55 (Sec'y Aug. 4, 1995) (Complainant failed to establish an actual violation where no other employee noted problems; vehicle passed inspection about 1 1/2 months before the work refusal; vehicle also passed a surprise inspection about one month after complainant's discharge with no evidence of repairs in the interim).
V A 3 b Section 405(b) case; requirement that actual violation would have occurred
To invoke protection under 49 U.S.C. § 2305(b), a Complainant must prove that an actual violation would have occurred. Thus, where the Complainant had only 6 additional miles to drive and 30 minutes to do so without violating the seventy-hour on-duty regulation at 49 C.F.R. § 395.3(b)(2), he did not establish by a preponderance of the evidence that he would have violated DOT regulations had he not refused to drive as scheduled. Although the Complainant contended that a violation would have occurred because of the time it would take to unload the truck, Respondent's evidence showed that the Complainant would have been logged off-duty upon arrival.
Ass't Sec'y & Boyles v. Highway Express, Inc., 94-STA-21 (Sec'y July 13, 1995).
V A 3 b Sufficiency of evidence; complainant's subjective opinion
Testimony of subjective pain is entitled to significant weight and severe headaches can be debilitating enough to prevent a driver from continuing to operate a vehicle. A driver's communication to the dispatcher of his reason for leaving early is evidence of a good faith belief in a hazard. Self v. Carolina Freight Carriers Corp. , 89-STA-9 (Sec'y Jan. 12, 1990).
V A 3 b Complainant's notion of safety more stringent than state or federal laws
In Wiggins v. Roadway Express, Inc., 84-STA-7 (Sec'y Aug. 9, 1985), the Secretary adopted the ALJ's conclusion that Complainant did not have a reasonable apprehension of an unsafe condition when he refused to drive a tractor-trailer with two front tires Complainant thought to be unsafe. The ALJ conclude that the tires in question complied with federal standards, and with Georgia law which was even more stringent than the federal standards. Because Complainant's rejection of the tires was more stringent than those imposed by law, his subjective notion of "good working order" did not justify his refusal to drive the vehicle.
V A 3 b Complainant's subjective opinion
The Secretary rejected the position that section 2305(b) is violated whenever a driver has a reasonable and good faith belief that it is unsafe to drive. Section 392.14 of the regulations prohibits the operation of a vehicle when the weather conditions are in fact such that the vehicle cannot be operated safely. The Secretary noted that a determination as to whether such conditions exist requires the exercise of subjective judgement and is ordinarily made on the basis of information available at the time, but that determination is not reserved to the driver alone. In fact, the regulations also impose a duty upon the carrier to determine whether the vehicle can be safely operated under the existing conditions. Robinson v. Duff Truck Line, Inc. , 86-STA-3 (Sec'y Mar. 6, 1987), aff'd Duff Truck Line, Inc. v. Brock, 48 F.2d 189 (6th Cir. 1988)(per curiam)(unpublished decision available at 1988 U.S.App. 9164).
V A 3 b Sufficiency of evidence; complainant's subjective opinion -- first clause STAA
A complainant's unsubstantiated, subjective opinion is insufficient to establish a violation under section 2305(b), even if it represents good faith. See Robinson v. Duff Truck Line, Inc., 86-STA-3 (Sec'y Mar. 6, 1987), slip op. at 12, aff'd Duff Truck Line, Inc. v. Brock, No. 87-3324 (6th Cir. 1988) (LEXIS, Genfed Library, Court of Appeals file). Rather, to invoke protection under the first clause of Section 2305(b), a complainant must prove that his assessment of the condition is correct. Robinson, slip op. at 12 n.7. Brame v. Consolidated Freightways, 90-STA-20 (Sec'y June 17, 1990).
V A 3 c STAA when clause, prospective violation
The operation of a vehicle may constitute a violation of 49 U.S.C. app. § 2305(b) either presently or over time prospectively where it is inevitable that a violation must occur; there is no requirement in this provision that the driver's operation of the vehicle must immediately violate a federal rule or regulation.
Thus, where a violation of DOT driving time regulations, 49 C.F.R. § 395.3 is necessarily contemplated in a dispatch order, albeit at a somewhat later time, the order is regarded as requiring the operation of a motor vehicle contrary to federal rules and regulations, and consequently a driver's refusal is protected under the STAA provision which prohibits an employer from discharging an employee for refusing to operate a motor vehicle "when such operation constitutes a violation of any federal rules, regulations, standards or orders applicable to commercial motor vehicle safety." 49 U.S.C. app. § 2305(b).
The Secretary distinguished Brothers v. Liquid Transporters, Inc., 89-STA-1 (Sec'y Feb. 27, 1990), in which it was held that a driver without available driving hours may be ordered to begin a run by resting in the sleeper berth while his partner drives because the Brothers complainant was only instructed to begin a rest break and not to operate a commercial motor vehicle, and because in Brothers there was no mandatory delivery time requiring violation of Department of Transportation driving time regulations.
Boone v. TFE Inc., 90-STA-7 (Sec'y July 17, 1991).
[STAA Digest V A 3 c]
"ANTICIPATORY FATIGUE"
"Neither Somerson [ v. Yellow Freight System, Inc. , ARB Nos. 99-005, 036; ALJ Nos. 98-STA-9, 11 (ARB Feb. 18, 1998)] nor prior Secretary and ARB decisions should be read to exclude coverage of claims under [STAA Section 405(a)(1)(B)(i)] that are predicated on anticipatory fatigue. Instead, these cases stand for the proposition that a complainant must provide some proof that his or her ability will likely become impaired due to fatigue." Stauffer v. Wal-Mart Stores, Inc . , ARB No. 99-107, ALJ No. 1999-STA-21, slip op. at 11 (ARB Nov. 30, 1999) (footnotes omitted).
V A 3 c Preponderance of the evidence standard
Section 2305(b) prohibits employment discrimination for refusing to operate a vehicle when operation constitutes a violation of any Federal commercial motor vehicle safety rule, regulation, standard, or order. Regulatory section 392.3 expressly states that a fatigued driver may not operate a motor vehicle, and a carrier may not require or permit a fatigued driver to do so. Failure to observe these restrictions would result in their violation as that term is commonly understood. Contrary to the Department of Transportation's interpretation of the regulation requiring a knowing or willful violation, the Secretary held that the proper test under the STAA is proof of the violation by a preponderance of the evidence. Self v. Carolina Freight Carriers Corp. , 89-STA-9 (Sec'y Jan. 12, 1990).
V. A. 3. d. Authority of DOL to find safety violation; standard of proof
In Paquin v. J.B. Hunt Transport, Inc., 93-STA-44 (Sec'y July 19, 1994), the Complainant asserted that he was discharged in part because of his refusal to drive in violation of the hours of service regulation. On review, the Secretary noted that the Complainant had attempted to offer his log books into evidence, the ALJ declined to receive them. For purposes of the decision, the Secretary assumed that the contemplated dispatch would have violated the 70 hour rule of 49 C.F.R. § 395.3(b)(2).
The Secretary found that Complainant did not establish a prima facie case, and that even if he had, he did not show that the Respondent's articulated reason for discharge was pretext.
V A 3 d Whether safety violation must be established
In Doyle v. Rich Transport, Inc., 93-STA-17 (Sec'y Apr. 1, 1994), the Secretary noted that, at least in the Second Circuit, it must be shown that the condition complained about actually violated a federal safety regulation to establish a section 405(b) complaint. See Yellow Freight System, Inc. v. Martin, 983 F.2d 1195 (2d Cir. 1993). Nonetheless, the Sixth Circuit has agreed with the Secretary's interpretation that section 405(a) protection is not dependent on actually proving a violation of a federal safety provision. See Yellow Freight System, Inc., v. Martin, 954 F.2d 353, 357 (6th Cir. 1992). Rather, it is sufficient to show reasonable belief in a safety hazards.
V A 3 d Authority of Secretary and ALJ to find violation of Federal safety regulation in absence of citation by a motor vehicle inspector
In Zessin v. ASAP Express, Inc., 92-STA-33 (Sec'y Jan. 19, 1993), the ALJ found that the operation of respondent's truck, which had smoke covered windows and warped and loose fitting mirrors resulting from a fire at one of respondent's warehouses, violated the "when clause" of the STAA whistleblower provision because of violation of Federal regulations governing windshields, 49 C.F.R. § 393.60(b), and rear view mirrors, 49 C.F.R. § 393.80(a). The respondent's position on review by the Secretary was that the ALJ had no authority to construe Federal motor carrier safety regulations because no evidence was introduced to show that the truck was cited for a Federal safety violation.
The Secretary noted that both the Secretary and DOL ALJs may determine whether operating a vehicle would constitute violation of a Federal safety regulation, even in the absence of a citation by a motor vehicle inspector.
See, e.g., Davis v. H.R. Hill, Inc., 86-STA- 18 (Sec'y Mar. 19, 1987), slip op. at 5-6 (in absence of citation, finds violation of Federal safety regulations governing vehicle parts and accessories, lighting, and electrical equipment).
See also Robinson v. Duff Truck Line, Inc., 86-STA-3 (Sec'y Mar. 6, 1987), slip op. at 9-10 (interprets Federal motor carrier safety regulation in absence of DOT or court interpretation), aff'd sub nom., Duff Truck Line, Inc. v. Brock, No. 87-3324 (6th Cir. May 4, 1988); Spinner v. Yellow Freight System, Inc., 90-STA-17 (Sec'y May 6, 1992), slip op. at 17-18 (finds violation of safety regulation notwithstanding DOT Chief Counsel opinion letter that no violation occurred), appeal docketed, No. 92- 4074 (2d Cir. May 12, 1992).
In the instant case, the complainant had requested a state police officer to inspect his vehicle. The officer testified that the mirrors and windows made vision difficult, but did not issue a citation. He explained that if he had issued a citation, it could only have been against the complainant rather than the company that owned the truck. The Secretary agreed with the ALJ's conclusion that the officer was unwilling to admit that the vehicle violated a safety regulation because he chose not to issue a citation taking the vehicle out of service. Thus, there was ample basis for the ALJ to conclude that notwithstanding the officer's statement to the contrary, the operation of the vehicle in its damaged condition violated Federal safety regulations governing windshields and rear view mirrors.
Moreover, protection under the STAA is not dependent on actually proving a violation; a possible safety violation is sufficient. Yellow Freight System, Inc. v. Martin, 954 F.2d 353, 356- 357 (6th Cir. 1992).
V. A. 3. d. Authority of DOL to find safety violation; standard of proof
In Paquin v. J.B. Hunt Transport, Inc., 93-STA-44 (Sec'y July 19, 1994), the Complainant asserted that he was discharged in part because of his refusal to drive in violation of the hours of service regulation. On review, the Secretary noted that the Complainant had attempted to offer his log books into evidence, the ALJ declined to receive them. For purposes of the decision, the Secretary assumed that the contemplated dispatch would have violated the 70 hour rule of 49 C.F.R. § 395.3(b)(2).
The Secretary found that Complainant did not establish a prima facie case, and that even if he had, he did not show that the Respondent's articulated reason for discharge was pretext.
In Bethea v. Wallace Trucking Co. , ARB No. 07-057, ALJ No. 2006-STA-23 (ARB Dec. 31, 2007), the ARB found that substantial evidence supported the ALJ's finding that the Complainant had not had a reasonable belief that an STAA violation had occurred when he made an hours-of-service complaint and a complaint about a fuel leak. In affirming the ALJ, the Board wrote: "For a finding of protected activity under the complaint clause of the STAA, [the Complainant] must at least be acting on a reasonable belief regarding the existence of a safety violation." USDOL/OALJ Reporter at 8 (footnote omitted).
V A 3 e Correction of unsafe condition
The requirement that the employee seek correction of the unsafe condition applies only to section 2305(b) and only where the refusal to drive is based on a reasonable apprehension of injury due to the unsafe condition of the vehicle. It does not apply to the refusal to drive in violation of a federal safety rule or regulation. Juarez v. Ready Trucking Co. , 86-STA- 27 (Sec'y July 7, 1988).
[STAA Digest V A 3 e]
SEEKING CORRECTION OF CONDITION NOT REQUIRED UNDER REFUSAL TO DRIVE BASED ON SAFETY VIOLATION COMPLAINT (AS OPPOSED TO REFUSAL BASED ON FEAR OF INJURY)
In Petit v. American Concrete Products, Inc. , 1999-STA-47, slip op. at 3 n.1 (ALJ Apr. 27, 2000), the ALJ found that Complainant could not recover under the refusal to drive due to reasonable apprehension of serious injury rule, because he did not seek to have the truck he refused to drive repaired. The ALJ, however, found that the requirement that the employee seek the correction of the unsafe condition does not apply to section 31105(a)(1)(B)(i), (refusal to drive based on a safety violation), and that because he found that there were faulty brakes on the truck, Complainant's work refusal was protected by that subsection.
[STAA Digest V A 3 e]
FEDERAL MOTOR SAFETY VIOLATION; COVERAGE DEPENDS ON PROOF OF ACTUAL VIOLATION -- MERE GOOD FAITH BELIEF IS NOT ENOUGH
Under the statutory provision covering a "federal motor safety violation" -- 49 U.S.C. § 31105(a)(1)(B)(i) -- the complainant must show that the operation of a vehicle would have been a genuine violation of a federal safety regulation at the time he or she refused to drive -- a mere good-faith belief in a violation does not suffice. Beveridge v. Waste Stream Environmental, Inc. , 97-STA-15 (ARB Dec. 23, 1997).
[STAA Digest V A 3 e]
REASONABLE APPREHENSION OF INJURY NOT ELEMENT OF § 31105(a)(1)(A) SAFETY COMPLAINT
Where Complainant's asserted protected activity is an internal complaint about safety pursuant to 49 U.S.C. § 31105(a)(1)(A), rather than refusal to drive pursuant to § 31105(a)(1)(B)(ii), protection under the STAA is not contingent on Complainant's reasonable apprehension of injury. Pittman v. Goggin Truck Line, Inc. , 96-STA-25 (ARB Sept. 23, 1997).
V A 3 e Because clause; requirement that complainant have sought correction of unsafe condition
Ordinarily, the reason for a work refusal should be communicated to an employer, or at least an attempt at such communication should be made.
In order to gain protection under the "because" clause of STAA § 405(b), an employer "must have sought from his Employer, and have been unable to obtain, correction of the unsafe condition, a requirement subsuming attempted communication. Although protection under the "when" clause does not similarly depend on this requisite, a qualified communication requirement is certainly rational and consistent with the statute. Obsorn v.Cavalier Homes of Alabama, Inc. and Morgan Drive Away, Inc., 89-STA-10 (Sec'y July 17, 1991) ( citing Simpson v. Federal Mine Safety & Health Rev. Com'n, 842 F.2d 453 (D.C. Cir. 1988)).
V A 3 e Section 31105(a)(1)(B) -- actual violation
The "refusal to drive" provision, 49 U.S.C. § 31105(a)(1)(B), has two subparagraphs. To be protected under subparagraph (i), the complainant must show that operating the vehicle would have caused an actual violation of a motor carrier safety regulation; it is not sufficient that the driver had a reasonable belief about a violation. Where the Complainant did not inspect an assigned vehicle or their vehicle condition reports, he did not show that operating those vehicles would have violation a safety regulation.
To be protected under subparagraph (ii), the employee must have a reasonable apprehension of serious injury. An apprehension of serious injury is reasonable only if a reasonable individual in the circumstances then confronting the employee would conclude that the unsafe condition establishes a real danger of accident, injury, or serious impairment to health. In addition, the employee must have sought from the employer, and had been unable to obtain, correction of the unsafe condition. Because the Complainant did not inspect the vehicles or their vehicle condition reports, it could not be found that a reasonable person in the Complainant's circumstances would conclude that a vehicle had an unsafe condition that would pose a real danger. Further, by not bringing any defect to his employer's attention, the Complainant made no attempt to seek correction of any unsafe conditions. (The Complainant had a prior bad experience with a Peterbilt tractor, told his supervisor that Peterbilt's were "pieces of junk", and asked for a Freightliner. The Complainant, however, did not even glance at the vehicles)
Williams v. Carretta Trucking, Inc., 94-STA-7 (Sec'y Feb. 15, 1995).
[ Editor's note : Prior to recodification, the "refusal to drive" section was 29 USC § 2305(b). This section was frequently referred to as having a "when" or "federal violation" clause, and a "because" or "reasonable apprehension" clause. New section 31105(a)(1)(B) leads into both clauses with a "because", with the result that the old shorthand way of referencing the clauses can no longer be used.]
V A 3 e Communication clause applies only to because clause
STAA section 405(b) protects an employee who refuses to operate a commercial motor vehicle "when" such operation would violate a federal motor vehicle standard or "because" he reasonably apprehends serious injury due to the unsafe condition of equipment. The second ground for refusal ("because" clause) carries the further requirement found in the second sentence of the subsection that the unsafe condition "causing the employee's apprehension of injury" must be such that a reasonable person, under the circumstances, would perceive a bona fide hazard. Section 405(b) further stipulates that the employee must have sought from his employer, and have been unable to obtain, correction of the unsafe condition. These second and third sentences of section 405(b) limit only the second ground for refusal, i.e., the "reasonable apprehension" ground contained in the "because" clause of the first sentence. Duff Truck Line, Inc. v. Brock, No. 87-3324 (6th Cir. May 4, 1988) (unpublished decision available at 1988 U.S. App. LEXIS 9164; table case at 848 F.2d 189), aff'g Robison v. Duff Truck Line, Inc., 86-STA-3 (Sec'y Mar. 6, 1987). The language of the third sentence ties protection to an attempt to obtain correction of the unsafe condition referenced in the "because" clause and the second sentence.
Thom v. Yellow Freight System, Inc., 93-STA-2 (Sec'y Nov. 19, 1993).
V A 3 e Reasonable apprehension clause applies only to because clause
STAA section 405(b) protects an employee who refuses to operate a commercial motor vehicle "when" such operation would violate a federal motor vehicle standard or "because" he reasonably apprehends serious injury due to the unsafe condition of equipment. The second ground for refusal ("because" clause) carries the further requirement found in the second sentence of the subsection that the unsafe condition "causing the employee's apprehension of injury" must be such that a reasonable person, under the circumstances, would perceive a bona fide hazard. Section 405(b) further stipulates that the employee must have sought from his employer, and have been unable to obtain, correction of the unsafe condition. These second and third sentences of section 405(b) limit only the second ground for refusal, i.e., the "reasonable apprehension" ground contained in the "because" clause of the first sentence. Duff Truck Line, Inc. v. Brock, No. 87-3324 (6th Cir. May 4, 1988) (unpublished decision available at 1988 U.S. App. LEXIS 9164; table case at 848 F.2d 189), aff'g Robison v. Duff Truck Line, Inc., 86-STA-3 (Sec'y Mar. 6, 1987). The language of the third sentence ties protection to an attempt to obtain correction of the unsafe condition referenced in the "because" clause and the second sentence.
Thom v. Yellow Freight System, Inc., 93-STA-2 (Sec'y Nov. 19, 1993).
V A 3 e Complainant need only show that he/she refused to drive in violation of a Federal safety rule in order to establish protected activity
In Gohman v. Polar Express, Inc., 88-STA-14 (Sec'y Nov. 14, 1988), the Secretary disagreed with the ALJ's statement that "[e]ven if Complainant had presented adequate evidence of refusal to drive in violation of 49 C.F.R. Part 395, (a Federal motor carrier safety regulation) Complainant 'must have sought from his employer, and have been unable to obtain correction of the unsafe condition' in order to qualify for protection under section 2305(b)." The Secretary held that the statutory requirement that the employee must have sought correction of the unsafe condition applies only where the refusal to drive is because of the unsafe condition of the equipment, not where the refusal to drive is because operation of the vehicle would be in violation of a Federal safety rule.
V A 3 e STAA; work refusal based "Federal violation" circumstances
An employee's refusal to drive an unsafe vehicle is protected under the "Federal violation' circumstance even where there is no proof that the employee sought correction of the unsafe condition which prompted his/her work refusal.
Section 2305(b) of the STAA prohibits discriminatory treatment of employees in either of two work refusal circumstances, i.e. the "Federal violation" and "reasonable apprehension" circumstances. The requirement that the employee must have sought from his employer, and been unable to obtain, correction of the unsafe condition limits only a work refusal based on reasonable apprehension.
Hadley v. Southeast Coop. Serv. Co., 86-STA-24 (Sec'y June 28, 1991).
V A 3 e STAA; work refusal based on "reasonable apprehension" circumstances
Where an employee refuses to work in "unsafe conditions," the requirement that the employee must have sought from his employer, and been unable to obtain, correction of the unsafe condition limits only a work refusal based on "reasonable apprehension." (Emphasis added).
A work refusal based on "Federal violation" is protected even in the absence of proof that the employee sought correction of the unsafe condition which prompted work refusal.
Hadley v. Southeast Coop. Serv. Co., 86-STA-24 (Sec'y June 28, 1991).
[ Editor's note : Prior to recodification, 29 USC § 2305(b) was frequently referred to as having a "when" or "federal violation" clause, and a "because" or "reasonable apprehension" clause. New section 31105(a)(1)(B) leads into both clauses with a "because", with the result that the old shorthand way of referencing the clauses can no longer be used.]
[STAA Whistleblower Digest V A 4]
PROTECTED ACTIVITY; REASONABLENESS OF COMPLAINANT'S TIRE INSPECTION PRACTICES; CREDIBILITY OF WITNESSES
DOT regulations governing transportation of hazardous loads at 49 C.F.R. § 397.17 do not require inspection of tires on non placard loads every two hours or 100 miles (whereas they do on placarded loads). Considering whether Complainant's routine practice of performing such inspections was nonetheless protected activity for purposes of 49 USCA § 3105(a)(1)(B)(ii) (the "reasonable apprehension" provision), the ARB found that substantial evidence supported the ALJ's conclusion that, absent a suspicion of a problem, Complainant's apprehension of tire failure was not reasonable. The ALJ's findings were largely based on credibility findings on the testimony of various witnesses. Monde v. Roadway Express, Inc. , ARB No. 02 071, ALJ Nos. 2001 STA 22 and 29 (ARB Oct. 31, 2003).
[STAA Whistleblower Digest V A 4]
ABSENCE OF HIGHWAY USE TAX STICKER DOES NOT IMPLICATE SAFETY, BUT TAX ISSUES
In Forrest v. Transwood Logistics, Inc. , 2001-STA-43 (ALJ Aug. 7, 2001), the ALJ found that, although the truck Complainant was driving did not have a New York Highway Use Tax sticker, the absence of such a sticker was not a safety matter as alleged by Complainant, but rather related to a tax and not safety. Therefore this issue did not support a whistleblower complaint under section 31105(a)(1)(B)(i). The ALJ also found that no reasonable person could conclude that absence of a HUT sticker established a real danger of accident, injury or serious impairment to health, and therefore a whistleblower complaint under section 31105(a)(1)(B)(ii) was not supported.
[STAA Digest V A 4 a]
REASONABLE APPREHENSION INCLUDES ANTICIPATORY FATIGUE; REASONABLENESS OF RESPONDENT'S POLICY NOT AT ISSUE, BUT RATHER REASONABLENESS OF COMPLAINANT'S APPREHENSION
The broad scope of STAA section 405(a)(1)(B)(ii) encompasses situations where a driver's physical condition, including present or anticipated fatigue, causes an employee to have "a reasonable apprehension of serious injury to the employee or the public." Somerson [ v. Yellow Freight System, Inc. , ARB Nos. 99-005, 036; ALJ Nos. 98-STA-9, 11, slip op. at 14 n.13 (ARB Feb. 18, 1998). In Stauffer v. Wal-Mart Stores, Inc . , ARB No. 99-107, ALJ No. 1999-STA-21 (ARB Nov. 30, 1999), the ALJ was found to have misapplied this standard when he found that Complainant failed to present evidence to establish that Respondent's policy of awakening drivers to change trailers was unreasonable and thus a violation of section 405(a)(1)(B). The ARB held that "[i]t is not the reasonableness of [Respondent's] policy that is at issue, but the reasonableness of [Complainant's] apprehension that he would be too fatigued to operate his vehicle safely under the circumstances that he anticipated. ... It is entirely possible that [Respondent] could have a policy which appears reasonable on its face, but which may still violate the STAA based on the specific circumstances under which it is applied." Slip op. at 12-13 (citations omitted).
[STAA Digest V A 4 a]
ELEMENTS OF "BECAUSE" CLAUSE OF "WORK REFUSAL" PROVISION
In order to establish a complaint under STAA § 405(b), 49 U.S.C. app. 2305(b), the "because" clause of the "work refusal" provision, a complainant must establish that (1) he or she refused to operate the vehicle because he or she was apprehensive of an unsafe condition of the vehicle, (2) his or her apprehensive was objectively reasonable, (3) he or she sought to have the respondent correct the problem, and (4) the respondent failed to do so. Brink's, Inc. v. Herman , No. 96-4162 (2d Cir. June 25, 1998) (available at 1998 WL 337259)(case below 95-STA-4).
V A 4 a Section 31105(a)(1)(B)(ii) -- reasonable apprehension
The "refusal to drive" provision, 49 U.S.C. § 31105(a)(1)(B), has two subparagraphs. To be protected under subparagraph (i), the complainant must show that operating the vehicle would have caused an actual violation of a motor carrier safety regulation; it is not sufficient that the driver had a reasonable belief about a violation. Where the Complainant did not inspect an assigned vehicle or their vehicle condition reports, he did not show that operating those vehicles would have violation a safety regulation.
To be protected under subparagraph (ii), the employee must have a reasonable apprehension of serious injury. An apprehension of serious injury is reasonable only if a reasonable individual in the circumstances then confronting the employee would conclude that the unsafe condition establishes a real danger of accident, injury, or serious impairment to health. In addition, the employee must have sought from the employer, and had been unable to obtain, correction of the unsafe condition. Because the Complainant did not inspect the vehicles or their vehicle condition reports, it could not be found that a reasonable person in the Complainant's circumstances would conclude that a vehicle had an unsafe condition that would pose a real danger. Further, by not bringing any defect to his employer's attention, the Complainant made no attempt to seek correction of any unsafe conditions. (The Complainant had a prior bad experience with a Peterbilt tractor, told his supervisor that Peterbilt's were "pieces of junk", and asked for a Freightliner. The Complainant, however, did not even glance at the vehicles)
Williams v. Carretta Trucking, Inc., 94-STA-7 (Sec'y Feb. 15, 1995).
[ Editor's note : Prior to recodification, the "refusal to drive" section was 29 USC § 2305(b). This section was frequently referred to as having a "when" or "federal violation" clause, and a "because" or "reasonable apprehension" clause. New section 31105(a)(1)(B) leads into both clauses with a "because", with the result that the old shorthand way of referencing the clauses can no longer be used.]
V A 4 a Reasonable apprehension standard
STAA section 405(b) protects an employee who refuses to operate a commercial motor vehicle "when" such operation would violate a federal motor vehicle standard ("when" clause) or "because" he reasonably apprehends serious injury due to the unsafe condition of equipment ("because" clause). The second ground for refusal ("because" clause) carries the further requirement found in the second sentence of the subsection that the unsafe condition "causing the employee's apprehension of injury" must be such that a reasonable person, under the circumstances, would perceive a bona fide hazard. Section 405(b) further stipulates that the employee must have sought from his employer, and have been unable to obtain, correction of the unsafe condition. The second and third sentences of section 405(b) limit only the second ground for refusal, i.e., the "reasonable apprehension" ground contained in the "because" clause of the first sentence. Duff Truck Line, Inc. v. Brock, No. 87-3324 (6th Cir. May 4, 1988), aff'g Robinson v. Duff Truck Line, Inc., 86-STA-3 (Sec'y Mar. 6, 1987). The language of the third sentence ties protection to an attempt to obtain correction of the unsafe condition referenced in the "because" clause and the second sentence.
Turgeon v. Maine Beverage Container Services, Inc., 93-STA-11 (Sec'y Nov. 30, 1993).
Editor's note: The Duff decision cited by the Secretary is an unpublished decision reported as a table case: Duff Truck Line, Inc. v. Brock, 848 F.2d 189 (6th Cir. May 4, 1988) (per curiam) (unpublished decision available at 1988 U.S. App. LEXIS 9164).
V.A.4.a. Because clause
Under the STAA, it is unlawful to discriminate against an employee for refusing to operate a vehicle "because of the employee's reasonable apprehension of serious injury to himself or the public due to the unsafe condition of [the] equipment" ("because clause"). 29 U.S.C. § 2305(b). The test for such protection is stated in the statutory language:
The unsafe conditions causing the employee's apprehension of injury must be of such nature that a reasonable person, under the same circumstances then confronting the employee, would conclude that there is a bona fide danger of accident, injury, or serious impairment of health, resulting from the unsafe condition.
Id. The provision further requires that the employee must have sought from his employer, and have been unable to obtain, correction of the unsafe condition. Id.
Dutile v. Tighe Trucking, Inc., 93-STA-31 (Sec'y Nov. 29, 1993).
V A 4 b i Absence of actual mechanical defect does not establish lack of reasonable apprehension; applicability of ERA Pensyl standard for work refusal in STAA case
In Thom v. Yellow Freight Systems, Inc., 93-STA-2 (Sec'y July 20, 1993), Respondent contended that for Complainant to meet his burden of showing a reasonable apprehension of injury, Complainant must show that an actual mechanical defect existed. In support of this contention Respondent cited Brame v. Consolidated Freightways, 90-STA-20 (ALJ Feb. 28, 1992), adopted, (Sec'y June 17, 1992) and Perez v. Guthmiller Trucking Co., 87-STA-13 (Sec'y Dec. 7, 1988). The ALJ found both cases inapposite. In Brame the driver had persisted in his refusal to drive even after the brakes he complained about were tested and found to be safe, and he was informed of the results of the testing. In Perez the Secretary accepted the testimony of Respondent's witnesses that Complainant had not complained and they were not aware of mechanical problems until after Complainant left Respondent's employ. In sum, the ALJ concluded that section 405 requires only that a complainant have a reasonable apprehension of a hazardous condition. It does not require that the hazardous condition later be confirmed. A Hazardous condition is not considered unreasonable, as a matter of law, because a subsequent inspection of the vehicle finds no sign of the hazardous condition.
The ALJ also agreed with the analysis of Judge von Brand in Boone v. TFE, Inc., 90-STA-7 (ALJ Mar. 28, 1991), adopted without comment on this particular ruling (Sec'y July 17, 1991), that the Secretary's ERA decision in Pensyl v. Catalytic, Inc., 83-ERA-2 (Sec'y Jan. 13, 1984), is the appropriate standard to apply in an STAA case for determining whether a refusal to work is reasonable.
[STAA Digest V A 4 b]
HEARSAY; STATE OF MIND
In Jackson v. Protein Express , 95-STA-38 (ARB Jan. 9, 1997), the Board found that an ALJ erred in sustaining an objection to a question eliciting testimony concerning whether a mechanic advised Complainant not to drive an assigned truck because it was unsafe. The Board found that such testimony was admissible, not to show that the tractor-trailer was in fact unsafe, but to show Complainant's state of mind when he refused to drive the truck. The Board stated that this testimony would be relevant to whether Complainant had a reasonable apprehension of serious injury. 49 U.S.C. § 31105(a)(1)(B).
REASONABLE APPREHENSION; REASONABLENESS DETERMINED BY INFORMATION AVAILABLE AT TIME OF WORK REFUSAL
[STAA Digest V A 4 b i]
The determination regarding whether or not a complainant was reasonably apprehensive that driving a truck could result in possible injury to himself of the public must focus on the information available to the complainant at the time of the work refusal. Caimano v. Brink's, Incorporated, 95-STA- 4 (Sec'y Jan. 26, 1996).
V A 4 b i Requirement of objective reasonableness under 31105(a)(1)(B)(i)
Under 49 U.S.C. § 31105(a)(1)(B)(ii), the complainant must prove by a preponderance of the evidence that his or her alleged reasonable apprehension of serious injury due to the vehicle's unsafe condition was objectively reasonable.
Brunner v. Dunn's Tree Service, 94-STA-55 (Sec'y Aug. 4, 1995) (Complainant failed to establish an objectively reasonable belief where other employees with considerable experience testified that the vehicle was operating well, and the vehicle passed a surprise inspection about one month after complainant's discharge).
5 A 4 b i 405(b) generally
Protection under section 405(b) of the STAA includes requirements 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."
Killcrease v. S & S Sand and Gravel, Inc., 92- STA-30 (Sec'y Feb. 2, 1993).
V A 4 b i STAA work refusal; reasonable person standard
In order to establish a protected refusal to drive under the "because" clause, the unsafe condition must be of such a 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 condition. 49 U.S.C. app. § 2305(b). In considering claims under the "when" clause, in situations in which the complainant is asserting an illness or physical inability to drive the federal regulation at 49 C.F.R. § 392.3 may be consulted. This regulation requires proof that the employee's ability or alertness was so impaired as to make vehicle operation unsafe.
Smith v. Specialized Transportation Services, 91- STA-22 (Sec'y Apr. 20, 1992).
V A 4 b ii Successful completion of mission does not mean mission was safe
In Thom v. Yellow Freight System, Inc., 93-STA-2 (Sec'y Nov. 19, 1993), the Secretary noted that the fact that the assignment is successfully completed standing alone does not necessarily prove that the mission was safe. Robinson v. Duff Truck Line, Inc., 86-STA-3 (Sec'y Mar. 6, 1987), aff'd on other grounds sub nom., Duff Truck Line, Inc., v. Brock, No. 87-3324 (6th Cir. May 4, 1988) (unpublished decision available at 1988 U.S. App. LEXIS 9164; table case at 848 F.2d 189), slip op. at 7.
V A 4 b ii Repairs made later
In Dutile v. Tighe Trucking, Inc., 93-STA-31 (Sec'y Nov. 29, 1993), the Secretary indicated that it is proper to look to evidence that repair work was performed later in judging the reasonableness of Complainant's refusal to drive.
V A 4 b ii Reasonable person standard
Acknowledging that the sole reason it fired the Complainant was because he refused to drive, the Employer argued that it was unreasonable for the Complainant to refuse to drive and presented evidence that none of its other drivers refused to drive. The fact that other drivers decided to make their routes under the same circumstances, and the fact that several of these drivers testified that it was safe to drive and that they had no trouble, was considered when weighing the evidence for reasonableness. The ALJ also reviewed the National Weather Service records, the Department of Commerce records, Complainant's testimony, and other testimony concerning vehicular accidents during this period, and concluded that the Complainant acted as a reasonable person in refusing to drive. The ALJ found that the Complainant established a violation of the STAA. Thomas v. Independent Grocers of Abilene, Texas , 86-STA-21 (ALJ Jan. 28, 1987).
[Editor's note: The Secretary adopted the ALJ's Recommended Decision and Order.]
In Barnett v. Lattimore Materials, Inc. , ARB No. 07-053, ALJ No. 2006-STA-38 (ARB Sept. 22, 2008), the ARB affirmed the ALJ's grant of summary judgment in favor of the Respondent where the undisputed facts were that the truck assigned to the Complainant, in which the Complainant had been involved in an accident, had been checked and found to be safe, the Complainant had been told that it had been checked and found to be safe, the Complainant had not complained about brakes at the time of the accident, the truck had been driven loaded after the accident safely, but the Complainant refused to drive the truck without inspecting or testing it. The ARB found that under these facts, the Complainant did not have an objectively reasonable belief that the truck was unsafe to drive due to defective brakes. The case had been brought under the "reasonable apprehension" subsection of the STAA at 49 U.S.C.A. § 31105(a)(1)(B)(ii).
V. A. 4. b. iii. Reasonable person standard; illustrative cases
In Chapman v. T.O. Haas Tire Co., 94-STA-2 (Sec'y Aug. 3, 1994), the Secretary found that, based on the evidence presented, a reasonable person under the circumstances confronting the Complainant at the time he decided not to make some deliveries would conclude that there was a bona fide danger of an accident or injury, and that, therefore, he had a reasonable apprehension of serious injury to himself or the public under section 405(b). The evidence included the fact that the Complainant's truck was almost empty, the temperature was below freezing, the terrain to the delivery sites not completed was elevated and the roadway curvy, and there was up to 12 inches of shown in the area with road closures because of stuck tractor- trailer rigs.
[STAA Digest V A 4 b iii]
REASONABLE APPREHENSION; COMPLAINANT'S CREDIBILITY; RESPONDENT'S FAILURE TO PRODUCE INSPECTION AND REPAIR RECORDS
In Murray v. Air Ride, Inc. , ARB No. 00-045, ALJ No. 1999-STA-34 (ARB Dec. 29, 2000), the ARB agreed with the ALJ's weighing of the evidence concerning whether Complainant had a reasonable apprehension of serious injury to himself or the public because of the vehicle's unsafe condition. See 29 U.S.C.A. §31105(a)(1)(B)(ii). The ALJ took into account that Complainant was a very experienced truck driver who had driven the truck in question six days a week for about ten months; that his testimony that the truck was slowing down and speeding up sporadically was uncontradicted and believed by a company vice-president; that the Complainant's testimony that during the first part of the trip other trucks had to take evasive action as a result of the speed control problems was credible; the weather forecast for the night of the trip compounded Complainant's concerns; Complainant's case was supported by an expert witness who testified in detail about the dangers caused by a truck's tendency to slow down unexpectedly.
The ALJ found Respondent's response -- essentially an attempt to prove that the truck was safe -- to be unpersuasive. Respondent presented an e-mail from the driver who replaced Complainant; however, the ALJ and the ARB found that the e-mail was ambiguous and therefore entitled to no weight; both the ALJ and the ARB viewed with suspicion Respondent's failure to produce inspection and repair records for the vehicle. Moreover, the ARB agreed with the ALJ's observation that Complainant was not required to prove that the safety defect in fact existed; rather, Complainant's apprehension was supported by his experience with the truck that evening, especially when viewed in light of earlier recent experience with the truck, the weather forecast, and "common sense."
REASONABLE APPREHENSION REQUIREMENT UNDER STAA
[STAA Digest V A 4 b iii]
In Brown v. Wilson Trucking Corp ., 94-STA-54 (ARB Oct. 25, 1996), the issue was whether Complainant had a reasonable apprehension of serious injury to himself or the public when he refused to transport and pump out a drum of hazardous material, after having been exposed to the material on a previous occasion. The Board did not question Complainant's good faith belief that he could again suffer exposure to the hazardous substance, but held that "the employee's belief must be objectively reasonable, not simply subjectively made in good faith." Slip op. at 2 (citation omitted). The Board agreed with the ALJ's determination that Complainant did not have a reasonable apprehension of serious injury -- Complainant had been fully trained, had made numerous other deliveries without incident, and had caused the prior spill by failing to follow proper procedure.
V A 4 b iii Illustrative case
In Zessin v. ASAP Express, Inc., 92-STA-33 (Sec'y Jan. 19, 1993), the Secretary adopted the ALJ's finding that the operation of respondent's truck, which had smoke covered windows and warped and loose fitting mirrors resulting from a fire at one of respondent's warehouses, violated the "when clause" of the STAA whistleblower provision because of violation of Federal regulations governing windshields and rear view mirrors. The ALJ did not rule on the "because" clause. The Secretary, however, made an alternative finding that a reasonable person would have concluded that there was danger of an accident or serious injury in driving the truck in the vision-impaired condition, and that the complainant also was protected by the STAA's "because clause." 49 U.S.C. § 2305(b). Evidence she cited included:
- A police officer's observation that for safety reasons, he personally would not have driven the truck in its damaged condition;
- Although the respondent presented daylight photographs of the outside of the truck to support its contention that the windshield was clean, the officer looked through the windshield at night toward the bright lights of a weigh station and found a 50% reduction in true vision. The Secretary concluded that the officer's test more reasonably approximated the condition of the windshield that the photographs.
- The person who cleaned the truck the next day had to use a heavy cleaner (whitewall tire cleaner because water and bleach would not work).
- The officer and the person who cleaned the truck were independent witnesses, probably given greater credibility by the ALJ than the respondent's witness-employee.
- The mirrors were later replaced. The respondent's witness, in direct contradiction of the complainant, testified that the mirrors was operable. The Secretary concluded that if they had been operable or sufficiently adjustable, they presumably would not have been replaced.
V. A. 4. b. iii. Reasonable person standard; illustrative cases
In Chapman v. T.O. Haas Tire Co., 94-STA-2 (Sec'y Aug. 3, 1994), the Secretary found that, based on the evidence presented, a reasonable person under the circumstances confronting the Complainant at the time he decided not to make some deliveries would conclude that there was a bona fide danger of an accident or injury, and that, therefore, he had a reasonable apprehension of serious injury to himself or the public under section 405(b). The evidence included the fact that the Complainant's truck was almost empty, the temperature was below freezing, the terrain to the delivery sites not completed was elevated and the roadway curvy, and there was up to 12 inches of shown in the area with road closures because of stuck tractor- trailer rigs.
Section 2305(b) of the STAA prohibits discriminatory treatment of employees in either of two "work refusal" circumstances. Absent unusual circumstances, the reason for a work refusal should be communicated to an employer to gain protection under the STAA. See generally Osborn v. Cavalier Homes of Alabama, Inc., 89-STA-10 (Sec'y July 17, 1991), slip op. at 3-4; Boone v. TFE, Inc., 90-STA-7 (Sec'y July 17, 1991), slip op. at 3-4, appeal docketed, No. 91-2659 (4th Cir. Sept. 16, 1991).
Barr v. ACW Truck Lines, Inc., 91-STA-42 (Sec'y Apr. 22, 1992).
V A 4 c 1 STAA requirement that complainant attempted to communicate safety concerns
The employee has the burden under section 405(b), absent unusual ircumstances, to show that he or she communicated or attempted to communicate his or her safety concerns to his employer. Boone v. TFE, Inc., 90-STA-7 (Sec'y July 17, 1991).
V A 4 c i Second work refusal circumstance STAA; must be accompanied by proof complainant sought correction of unsafe condition
The second work refusal circumstance of section 2305(b), the "reasonable apprehension" circumstance, must be accompanied by proof that the complainant sought, and was unable to obtain, correction of the unsafe condition is order to invoke protection under that provision. See generally Hadley v. Southeast Cooperative Service Co., 86-STA-24 (Sec'y June 28, 1991), slip op. at 3-4.
Wilson v. Bolin Associates, Inc., 91-STA-4 (Sec'y Dec. 30, 1991).
V A 4 c 1 Preponderance of the evidence standard
Where the preponderance of the evidence did not establish that the Respondent was aware that the Complainant's refusal to drive was in part due to pain and medication at the time he was terminated, the Complainant failed to establish a prima facie case of violation of either the "when" or "because" clauses of the STAA whistleblower provision. Palazzolo v. PST Vans, Inc., 92-STA-23 (Sec'y Mar. 10, 1993).
V A 4 c i "Because" clause; requirement of seeking correction of unsafe condition
A requisite to establishing employer's violation of the "because" clause of STAA § 2305(b) is that complainant must have sought, and have failed to obtain from the employer, correction of the unsafe condition. Nidy v. Benton Enter., 90-STA-11 (Sec'y Nov. 19, 1991).
V A 4 c ii Communication requirement applies only to unsafe equipment
No casenote.
In Calhoun v. United Parcel Service , No. 07-2157 (4th Cir. Aug. 11, 2009) (case below ARB No. 04-108; ALJ No. 2002-STA-31), the Complainant argued that he engaged in protected activity under the "complaint" clause of the STAA whistleblower provision at section 31105(a)(1), when he complained "sub silentio"about the Respondent's policies on pre-trip inspections by turning off air to the rear trailer and engaging in a prolonged inspection on days on which his inspection routine was being observed by his supervisor. The Complainant argued that such actions could be read as complaints when considered in the context of his history of oral and written complaints about the inspection procedures. The Complainant further argued that, as a matter of policy, the court should construe the complaint requirement of 31105(a)(1)(A)(i) broadly. The court, however, found the Complainant's argument to be untenable, stating that even against the backdrop of his verbal complaints on other days, his silent departures from the Respondent's practices in his supervisor's presence, did not suffice to constitute the filing of a complaint for the purposes of the STAA whistleblower provision.
[STAA Digest V A 4 c iii]
PROTECTED ACTIVITY; REQUEST TO DISCUSS ASSIGNMENT IS NOT THE EQUIVALENT OF VOICING A SAFETY CONCERN
In Johnson v. Econo Steel, LLC , ARB No. 07-111, ALJ No. 2007-STA-12 (ARB Feb. 23, 2009), the Complainant contended that he engaged in protected activity when he told the plant manager that he wanted to speak to the Respondent's owner about a 860 mile dispatch, and when he told the same thing to owner the next day just before he was fired. The ALJ had not been persuaded that the Complainant raised any concerns about the hours of service regulations under the Federal Motor Carrier Safety Act or the legality of the run with either the plant manger or the owner, but found it more probable that the Complainant told them he needed to leave in time so that he would not have to drive over the weekend. The ARB found that substantial evidence supported the ALJ's findings. Moreover, in regard to the Complainant's argument that the ALJ committed legal error in not finding protected activity, the ARB stated that "an employee who simply tells a manager that he wants to discuss his assignment is not the same as voicing a concern about a potential violation of the regulations."
[STAA Digest V A 4 c iii]
PROTECTED ACTIVITY; COMMUNICATION TO RESPONDENT; MERELY CONDUCTING A PRE-TRIP INSPECTION THAT WAS MORE RIGOROUS THAN THE RESPONDENT'S METHODS DOES NOT CONSTITUTE PROTECTED ACTIVITY
In Calhoun v. United Parcel Service , ARB No. 04-108, ALJ No. 2002-STA-31 (ARB Sept. 14, 2007), the ALJ concluded that the Complainant's pre-trip inspections that exceeded the Respondent's methods were protected under the STAA because they were reasonable.� The ARB disagreed, holding that although internal complaints about violations of commercial motor vehicle regulations may be oral, informal or unofficial, they cannot be merely implied.� Rather, they must be communicated to a manager or supervisor. The ARB wrote:� 'Specific components of Calhoun's pre-trip inspection such as touching the lug nuts or the brake hoses, standing alone, did not convey to UPS that Calhoun was aware of specific vehicle defects on the dates relevant to this case or that UPS's methods were in violation of the STAA. The employee protection provision of the STAA requires an employee to communicate his or her concerns by either refusing to drive or initiating a complaint. USDOL/OALJ Reporter at 14 (footnote omitted).� The Complainant's added inspections standing alone, therefore, did not constitute protected activity under the STAA.� In other words, the Complainant �did not engage in protected activity simply by inspecting his vehicle in defiance of UPS methods. USDOL/OALJ Reporter at 15.� Where, however, the Complainant actually told the Respondent about actual defects, he did engage in protected activity.
V A 4 c iii Adequacy of communication of safety-related concern -- STAA
Where complainant only expressed to respondent that he preferred to make shorter runs due to his inability to continue making long runs like he could as a younger man, and did not communicate any safety-related concern, and did not engage in protected activity under the STAA.
Barr v. ACW Truck Lines, Inc., 91-STA-42 (Sec'y Apr. 22, 1992).
[STAA Digest V A 4 c iii]
PROTECTED ACTIVITY; CALL ASKING ABOUT POLICY IS NOT A COMPLAINT ABOUT THE POLICY
In Toland v. Keystone Freight Corp. , ARB No. 03-151, ALJ No. 2003-STA-25 (ARB Jan. 28, 2005), the ARB affirmed the ALJ's finding that the Complainant failed to prove that he engaged in protected activity when he called the Respondent's dispatcher and asked about the company's policy concerning over hours driving. The ALJ found that this call was not protected because it was merely a "query," not a concern or complaint about violating the DOT driving hours regulations.
[STAA Whistleblower Digest V A 4 c iii]
COMMUNICATION REQUIREMENT
In Stout v. Yellow Freight Systems, Inc. , ARB No. 00 017, ALJ No. 1999 STA 42 (ARB Jan. 31, 2003), the ARB affirmed the ALJ's holding that where "Complainant only made general references to being ill and fatigued, rather than explicitly conveying the extent of his medical impairment and that his refusal to drive was because his ability to do so would result in a danger to himself or the public ... Complainant's statements were insufficient to satisfy the communication requirement of the STAA." Stout v. Yellow Freight Systems, Inc. , 1999 STA 42 (ALJ Dec. 3, 1999).
REFUSAL TO DRIVE COMPLAINT; COMMUNICATION REQUIREMENT
[STAA Digest V A 4 c iii]
In LaRosa v. Barcelo Plant Growers, Inc. , 96-STA-10 (ARB Aug. 6, 1996), Complainant had been on duty approaching fifteen hours on a difficult and unsuccessful first day as a solo driver. He telephoned the dispatcher, who told him to return to the facility. Complainant dropped off his truck and went home; he did not inform anyone that he would not take a run scheduled to begin only four hours later. The dispatcher had not told Complainant that it was not necessary to report to work for the next run. When it was discovered that Complainant had not come to work, the decision was made to fire him. Complainant contended that the dispatcher knew the situation and should not have expected Complainant to report.
The Board agreed with the ALJ's conclusion that Complainant did not establish a "refusal to drive" complaint under STAA, 49 U.S.C. § 31105(a)(1)(B), because he failed to show that he informed Respondent of the safety basis for his refusal to drive. The Board wrote:
- ... [Complainant's] statement regarding bringing the truck in on August 9, because he was approaching fifteen hours, cannot be considered a refusal to make the 3:00 a.m. run on August 10. [Complainant] wants us to assume that [the dispatcher] was aware, not only of the fact that he could not take the 3:00 a.m. run, but that the reason for refusing to take the run was safety related.
- At this point in our analysis [Complainant] has the burden of proof and we simply cannot assume compliance with the requirement, where reasonally [sic] possible, that a driver inform his employer of the safety basis for his refusal to drive. Assistant Secretary of Labor and Johnny E. Brown v. Besco Steel Supply, 93-STA-30, Sec. Dec., Jan. 24, 1995, slip op. at 3; LeBlance v. Fogleman Truck Lines, Inc., 89-STA-8, Sec Dec., Dec. 20, 1989, slip op. at 12-13; Perez v. Guthmiller Trucking Co., 87-STA-13, Sec. Dec., Dec. 7, 1988, slip op. at 25 n.14. [Complainant] never expressly refused to take the 3: 00 a.m. run, he just did not show up.
The Board, however, remanded for the ALJ to consider the matter under the "complaint" provision of the STAA, 49 U.S.C. § 31105(a)(1)(A).
V A 4 c iii STAA - prima facie case not established where focus of complaints not about safety; safety complaints not communicated adequately to respondent
The complainant could not prevail on his STAA complaint where the record established that his complaint to respondent centered on extra job assignments rather than on perceived safety violations. Further, because complainant failed to communicate safety defects as a basis for his refusal to work, Respondent was not aware of any vehicle defects and thus was not motivated by this consideration in discharging complainant. Finally, complainant'scommunication that "he felt like [expletive deleted]" and his explanation that he was frustrated and starting to get a headache, did not invoke STAA protection based on ill health. The Secretary stated that this record did not permit findings required to invoke STAA section 2305(b): that a reasonable person, under the circumstances then confronting complainant, would conclude that there was a bona fide danger of an accident, injury, or serious impairment of health resulting from the unsafe condition, or that the complainant's ability or alertness was so impaired as to make vehicle operation unsafe. See 49 C.F.R. § 392.3. Mace v. Ona Delivery Systems, Inc., 91-STA-10 (Sec'y Jan. 27, 1992).
V A 4 c iii "Reasonable apprehension" ground for refusing work; sufficient articulation - STAA
The complainant articulated his complaints sufficiently to meet the communication requirement of the "reasonable apprehension" ground for refusing work, see LeBlanc v. Fogelman Truck Lines, Inc., 89-STA-8 (Sec'y Dec. 20, 1989), slip op. at 12-17, aff'd sub nom., Fogelman Truck Lines, Inc. v. Martin, No. 90-4114 (5th Cir. Apr. 17, 1991), where the complainant detailed the truck defects in his post-trip vehicle inspection report, submitted consistent with the respondent's policy.
Reed v. National Minerals Corp., 91-STA-34 (Sec'y July 24, 1992).
V A 4 c iii Sufficiency of communication of reason for work refusal in STAA case
The fact that the complainant stated that she was "too stressed out" to drive during a conversation with Respondent's assistant manager did not establish that she had conveyed to the assistant manager that her refusal to drive was because she was unable to do so safely or without danger of accident. The statement came at the conclusion of an angry conversation over an ongoing dispute concerning whether the complainant had to return her bus to the terminal at the end of shift. Under the circumstances, the statement appeared to be an angry backlash to losing another argument concerning this bone of contention.
Smith v. Specialized Transportation Services, 91- STA-22 (Sec'y Apr. 20, 1992).
V A 4 c iv Communication not feasible
A requirement in cases arising under the "because clause" of the STAA, 49 U.S.C. § 2305(b), is that an employee seek correction of the unsafe condition from his employer before refusing work. In Zessin v. ASAP Express, Inc., 92-STA-33 (Sec'y Jan. 19, 1993), the complainant's supervisor walked away when the complainant raised the issue of defects in the mirrors and windshield of his assigned truck. The complainant also tried himself to correct the problems, but was not successful. Furthermore, once the complainant arrived at the delivery site, and was due to return immediately because of the nature of the respondent's express package delivery business, it was reasonable for him to shift his focus from correction of defects to substitution of a safe vehicle for the return trip. When seeking correction is not feasible, the requirement does not apply. Green v. Creech Brothers Trucking, 92-STA-4 (Sec'y Dec. 9, 1992), slip op. at 13 n.7.
RESPONDENT'S AWARENESS; COMMUNICATION REQUIREMENT; CLARITY OF COMMUNICATION
[STAA Digest V A 4 c iv]
Where the supervisor who made the decision to terminate the Complainant's employment had a reasonable belief that the Complainant could drive safely because he was not advised that the Complainant had made a trip that was not in the itinerary, nor was he advised that the Complainant was too fatigued to drive safely, the supervisor did not know, and could not reasonably have known, that the Complainant's refusal to take dispatch was protected activity. The supervisor had only been told that the Complainant "felt that he was over the hours of DOT." Vogt v. Atlas Tours, Ltd ., 94-STA-1 (ALJ Sept. 21, 1994), adopted , (ARB June 24, 1996).
V A 4 c v Communication requirement of STAA 2305(b) permits timely correction of hazard
The communication requirement of STAA section 2305(b) permits a timely correction of the hazard, thus promoting safety, and reducing bad faith work refusals. LeBlanc v. Fogelman Truck Lines, Inc., 89-STA-8 (Sec'y Dec. 20, 1989), slip op. at 12- 13. Thus, were the record indicated that Respondent would have substituted another vehicle or arranged for repairs had complainant mentioned vehicle defects in his communication refusing to work the remainder of the shift, a prima facie case of discrimination was not supported. Mace v. Ona Delivery Systems, Inc., 91-STA-10 (Sec'y Jan. 27, 1992).
PROTECTED ACTIVITY; WORK REFUSAL; OPPORTUNITY TO CORRECT UNSAFE SITUATION
[STAA Digest V A 4 c v]
Where the Complainant was apparently basing an argument that his refusal to drive was based on an unsafe situation caused by the combination of winter weather conditions and the sloshing effect of a liquid loaded only to one-third full, the work refusal was not protected under the STAA because the Complainant never attempted to have the Respondent alter the load. See 49 U.S.C. § 31105(a)(2) (employee must seek correction of unsafe condition). Cleary v. Flint Ink, Corp. , 94-STA-52 (Sec'y Mar. 4, 1996).
V A 4 c v Communication requirement of STAA 2305(b) permits timely correction of hazard
In order to qualify for protection under section 2305(b), the employee must have sought from his employer, and have been unable to obtain, correction of the unsafe condition. This limitation, however, only applies to the clause that prohibits discrimination because of the employee's reasonable apprehension of serious injury to himself or the public due to the unsafe condition of such equipment. The provision does not apply to the clause that prohibits discrimination for refusal to drive when such operation constitutes a violation of any federal rule or regulation.
The Secretary noted, however, that this is a qualified requirement subject to exception where unusual circumstances, such as futility exist. To hold otherwise would be to defeat protection under section 2305(b) in cases where an employer effectively discourages communication of safety concerns through its inaccessibility. For example, the Complainant in this case had made several attempts to communicate to the employer the necessity for repair and was unsuccessful through no fault of his own. LeBlanc v. Fogleman Truck Lines, Inc. , 89- STA-8 (Sec'y Dec. 20, 1989).
V A 4 c v Respondent did not refuse to correct condition
Where the evidence credited by the ALJ indicated that Complainant was offered another truck after attempts to repair the truck he was originally assigned were unsuccessful, the essential element of an STAA whistleblower complaint of refusal to correct an unsafe condition was not present, and Complainant failed to demonstrate that Respondent violated the Act. Bates v. Kasbar, Inc., 85-STA-11 (ALJ Mar. 7, 1986), adopted (Sec'y May 29, 1986).
V A 4 c vi Complainant prevented from obtaining timely correction
Where it was undisputed that it was reasonable for complainant to believe that his assigned vehicle was unsafe, and that complainant sought repair of the vehicle, the Secretary's finding that complainant was unable to obtain correction of the unsafe condition because he had been removed from the premises by a supervisor was affirmed where there was substantial evidence that complainant was removed because he had raised the issue of safety; that respondent's reason for the removal -- an altercation in a dispute over complainant's being in the wrong break room -- was disproportionate to the suggested infraction; and a co-driver was permitted to watch the repair while complainant was not. Lewis Grocer Co. v. Holloway, 874 F.2d 1008 (5th Cir. 1989).
REFUSAL TO DRIVE; CORRECTION OF SAFETY ISSUE; CONSTRUCTIVE DISCHARGE
[STAA Digest V A 4 c 6]
In Shoup v. Kloepfer Concrete Co. , 95-STA-33 (Sec'y Jan. 11, 1996), the Complainant refused to drive an overweight mixer, and the Yard Supervisor wanted to discharge the Complainant because of this protected activity. The Yard Supervisor, however, did not have the authority to fire the Complainant, and when he sought the authority from the Manager, the Manager called the Vice President. Ultimately, the Complainant was offered an alternative train mixer, which could take the load legally. The Complainant walked out, stating that he had been fired. The Complainant had previously made it known that it considered train mixers to be unsafe.
The Secretary found that the Complainant quit voluntarily, that the offer of a train mixer was a reasonable solution, and that there had not been a constructive discharge. There was no evidence that other drivers or employers believed that train mixers, used widely in the industry, were inherently unsafe.
[STAA Digest V A 4 c vi]
PROTECTED ACTIVITY; REFUSAL TO DRIVE; RESPONDENT'S INSPECTION OF VEHICLE AND EXPLANATION TO COMPLAINANT OF WHY IT IS SAFE TO DRIVE
In Harris v. C & N Trucking , ARB No. 04-175, ALJ No. 2004-STA-37 (ARB Jan. 31, 2007), PDF | HTM the ARB affirmed the ALJ's finding that the Complainant did not prove that he engaged in protected activity under the STAA where, although the Complainant believed that his assigned vehicle was unsafe to drive, the Respondent's owner credibly testified that he examined the truck and explained to the Complainant that there was no reason to remove it from service.
[Editor's note: The ARB decision does not elaborate on why the owner's testimony prevented a finding that the Complainant did not engage in protected activity when he refused to drive. The ALJ's recommended decision, however, contains a discussion of caselaw holding that a complainant's refusal to drive may lose protected status if the respondent investigated the hazard, determined the vehicle was safe, and informed the employee of that determination. Harris v. C & N Trucking , 2004-STA-37 (ALJ Sept. 9, 2004), slip op. at 8-9.]
V A 4 c vi Condition corrected -- no violation of because clause
In Stiles v. J.B. Hunt Transportation, Inc., 92- STA-34 (Sec'y Sept. 24, 1993), Complainant twice sought correction of defective brakes and bald tires, and Respondent ultimately made the necessary repairs while Complainant was assigned to a different truck. The Secretary held that Complainant did not establish a prima facie case of a violation of the "because" clause of the STAA whistleblower provision since he succeeded in getting the defects corrected.
[STAA Digest V A 5]
PROTECTED ACTIVITY; COMPLAINANT'S MOTIVE FOR MAKING THE COMPLAINT IS NOT MATERIAL TO THE ISSUE OF WHETHER THE COMPLAINANT HAD FORMED A REASONABLE BELIEF THAT A SAFETY VIOLATION HAD OCCURRED
In Guay v. Burford's Tree Surgeon's, Inc. , ARB No. 06-131, ALJ No. 2005-STA-45 (ARB June 30, 2008), the Complainant had reported drug use by coworkers to a major customer. The ALJ concluded that this was not protected activity because it was done in revenge for disciplinary action. The ARB found that the ALJ erred by taking into account the Complainant's motivation when assessing whether the complaint was based on a reasonable belief that a safety violation had occurred. The ARB reviewed the record and found that the Complainant indeed had a reasonable belief that motor vehicle safety rules were being violated because of drug use by coworkers; the Complainant's motives for making the complaint were not material.
[Editor's note: Because the complaint was dismissed on other grounds, the ALJ did not reach the issue of whether it is protected activity under the STAA to complain to a third party. Because the Respondent had not objected to this approach on appeal, the ARB assumed for purposes of deciding the appeal that the entity to which the Complainant complained was appropriate.]
V A 5 Mixed safety and non-safety reasons for engaging in protected activity
The fact that a complainant may have had other non-safety related reasons for refusing to an assigned run with a particular co- driver (e.g., getting paid the same amount but doing more of the driving) does not diminish the protection afforded to his safety- related reason for refusing the assignment. Taylor v. Broadhead, 91-STA-14 (Sec'y Feb. 11, 1992). The Secretary adopted the ALJ's finding that the complainant had made out a prima facie case of retaliatory discharge where the record supported the complainant's assertion that he had complained to his supervisor that his assigned co-driver was slow and tended to take naps or fall asleep at the wheel, with the result that the complainant would have had to drive in excess of the time permitted under federal regulations in order to stay on schedule.
See Taylor v. Broadhead, 91-STA-14 (ALJ Oct. 24, 1991).
[STAA Digest V A 5]
PROTECTED ACTIVITY; REASON FOR WORK REFUSAL MUST BE SAFETY RELATED
In Zurenda v. J&K Plumbing & Heating Co. Inc. , 97-STA-16 (ARB June 12, 1998), the ALJ found that certain safety defects were present in a truck Complainant refused to drive, and therefore Complainant engaged in protected activity. The ARB held that simply because Complainant refused to drive a truck that had safety defects did not establish protected activity. Where, as the ALJ found, the work refusal was not based on a concern for safety, but solely for non-safety related reasons, a complainant does not engage in protected activity.
[STAA DIGEST V A 5]
PROTECTED ACTIVITY; COMPLAINANT'S MOTIVE IRRELEVANT
A complainant's motivation in making safety complaints has no bearing on whether those complaints are protected activity. Nichols v. Gordon Trucking, Inc. , 97-STA-2 (ARB July 17, 1997).
PROTECTED ACTIVITY; COVERAGE OF CONCERNS ABOUT CRIMINAL ACTIVITY OF THIRD PARTIES VERSUS CONVENTIONAL MOTOR VEHICLE SAFETY; ARMORED VEHICLE; NO SPECIFIC FEDERAL VIOLATION NECESSARY FOR REASONABLE APPREHENSION/WORK REFUSAL CASE
[STAA Digest V A 5]
In Caimano v. Brink's, Incorporated, 95-STA-4 (Sec'y Jan. 26, 1996), a case involving a armored truck, the Secretary stated that the ALJ properly questioned whether the whistleblower provision of the STAA covers the raising of security concerns related solely to the threat of criminal activity posed by third parties. The Secretary confined his analysis to concerns related to conventional motor vehicle safety, although he noted that some of the concerns raised by the Complainant were pertinent to both the threat of criminal interference and to commercial vehicle safety covered by the STAA. Specifically, the Secretary found that the Complainant's concerns about malfunctioning electric door locks (which were merely back-ups to mechanical locks) and lack of interior gunports were not related to conventional motor vehicle safety. Concerns about exhaust fumes in the cargo compartment and radio communication (needed for safe and effective direction to the driver), however, were covered.
The Secretary noted that it is not necessary for a complainant in an STAA whistleblower case to establish a specific Federal violation under the reasonable apprehension/work refusal clause. The Secretary stated that "[s]uch [a] requirement would vitiate the purpose of the statute in circumstances such as this, where the commercial motor vehicle is being operated in an atypical manner that is not directly addressed by a Federal regulation." Slip op. at 13 n.10.
V A 5 Consideration of complainant's motives
In Foster v. Yellow Freight Systems, Inc., 84-STA- 10 (Sec'y Sept. 19, 1984), the Secretary adopted the ALJ's conclusions and recommendation that the complaint be dismissed. The ALJ found, considering the credibility of the witnesses, that Complainant did not have a reasonable apprehension of serious injury due to the condition of his assigned truck, where the credible evidence indicated that there had been an informal arrangement between the union and Respondent that regular drivers like Complainant would not be required to drive this truck, and the ALJ inferred that the Complainant "felt imposed upon in being required to drive" it. ALJ Slip op. at 7. The ALJ also found that the tractor was safe and its condition would not have caused a reasonable apprehension of serious injury.
V A 5 STAA - prima facie case not established where focus of complaints not about safety; safety complaints not communicated adequately to respondent
The complainant could not prevail on his STAA complaint where the record established that his complaint to respondent centered on extra job assignments rather than on perceived safety violations. Further, because complainant failed to communicate safety defects as a basis for his refusal to work, respondent was not aware of any vehicle defects and thus was not motivated by this consideration in discharging complainant. Finally, complainant's communication that "he felt like [expletive deleted]" and his explanation that he was frustrated and starting to get a headache, did not invoke STAA protection based on ill health. The Secretary stated that this record did not permit findings required to invoke STAA section 2305(b): that a reasonable person, under the circumstances then confronting complainant, would conclude that there was a bona fide danger of an accident, injury, or serious impairment of health resulting from the unsafe condition, or that the complainant's ability or alertness was so impaired as to make vehicle operation unsafe. See 49 C.F.R. § 392.3. Mace v. Ona Delivery Systems, Inc., 91-STA-10 (Sec'y Jan. 27, 1992).
V A 5 Complainant's fear of receiving a fine is not enough to constitute protected activity
In Kanavel v. U-Haul Company of Northwestern Ohio, 88-STA-9 (ALJ June 30, 1988), Respondent asked Complainant to pick up a tanker truck filled with used motor oil. After making telephone calls to the Michigan State Police, Ohio State Police, the Environmental Protection Agency, and another environmental protection agency to determined what was necessary to transport the oil and was told different things by different people, including that he would need a manifest and a chauffeur's license, and that the truck would need EPA stickers. Complainant refused to drive the truck because he did not have a chauffeur's license.
The ALJ concluded that Complainant's concern was the possibility of receiving a fine. He expressed no apprehension for his or the public's safety. Consequently, his refusal to drive the tanker truck was not protected activity.
The Secretary adopted the ALJ's finding. (Sec'y Oct. 24,1988).
V A 6 Compliance with direction to work despite earlier refusal
In Palmer v. Western Truck Manpower, 85-STA-6 (Sec'y Jan. 16, 1987), Complainant requested to have a load repacked because he had concluded that it was unsafe, but the request was refused. When he refused to drive the load as packed, the foreman had the service manager inspect the load, who brought in the superintendent for the same purpose. Each of these officials determined that the load was safe (except some excess dunnage was removed), and Complainant was told he had fifteen minutes to start delivery. Complainant drove the truck as loaded because he feared being fired unless he complied. Once on the road, Complainant was signalled by another driver that he had a problem, and upon discovering that the load had come apart, he returned to the yard. [Editor's note: there was some dispute as to the facts, but this is a summary of the version the ALJ credited]
The Secretary rejected Respondent's argument that Complainant did not engage in a protected activity because he did not refuse to drive the truck since he actually drove it out of the yard. The Secretary held that his initial refusal was not made less of a protected activity because he ultimately did drive for fear of being fired. Further, the return to the yard and refusal to complete delivery in and of itself was a refusal to operate a vehicle within the meaning section 2305(b).
[STAA Digest V A 6]
PROTECTED ACTIVITY; WORK REFUSAL VERSUS COMPLAINT
In Zurenda v. J&K Plumbing & Heating Co. Inc. , 97-STA-16 (ARB June 12, 1998), the ALJ erred in concluding that certain incidents where Complainant alleged that he had complained about the condition of the trucks he was to drive on those dates was a "work refusal" analyzed pursuant to section 31105(a)(1)(B). The ARB concluded that because Complainant did actually drive those trucks, the complaint was more properly analyzed under the "complaint" provision of section 31105(a)(1)(A).