USDOL/OALJ Law Library: STAA Whistleblower Digest, DIVISION V B -- SPECIFIC PROTECTED ACTIVITY

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 Digest V B 1 a]
PROTECTED ACTIVITY; PLAINTIFF IS NOT REQUIRED TO SHOW THAT HIS REPORT WENT BEYOND NORMAL CHANNELS OR NORMAL JOB DUTIES

In Stark v. Hartt Transportation Systems, Inc. , No. 12-cv-00195 (D. Me. Aug. 11, 2014) (2014 WL 3908128), aff'g Stark v. Hartt Transportation Systems, Inc. , No. 12-cv-00195 (D. Me. Apr. 1, 2014) (magistrate's recommended decision), the District Court adopted the recommendation of the Magistrate Judge to deny the Defendant's motion for summary judgment on the Plaintiff's STAA complaint. One of the grounds for summary judgment proffered by the Defendant was that the Plaintiff had not engaged in protected activity because the STAA purportedly requires that a plaintiff report a specific violation of a specific DOT regulation and the Plaintiff only reported routine mechanical issues. The Magistrate Judge noted the Plaintiff's observation that under Manske v. UPS Cartage Servs., Inc. , 870 F.Supp.2d 185 (D. Me. 2012), the court had held that:

a drivers reports to his employer constituted protected activity for purposes of the STAA when those reports were mandated pursuant to DOT regulations either because they concerned listed vehicle conditions or because they concerned issues that "would affect the safety of operation of the vehicle or result in its mechanical breakdown. " Manske , 870 F. Supp.2d at 203 (citation and internal quotation marks omitted). The court observed: "Congress recognized that by performing ordinary and routine job duties, drivers are often best able to detect safety violations, and Congress therefore mandated reporting requirements. " Id . at 204 (citation and internal quotation marks omitted).

Magistrate's recommended decision at 57. The Magistrate noted that the Defendant had contended at oral argument that "for purposes of the STAA as well as the MWPA, an employee must step outside of his or her normal role and/or make reports through other than normal channels to be considered a 'whistleblower.'" Id . at 58. The Plaintiff had countered that the STAA does not impose such requirements. The Magistrate held that the Complainant had the better argument, stating that "[t]he Manske court did not base its holding that the driver in that case had engaged in protected activity on a finding that he had gone beyond normal channels and/or his normal job duties." Id .

[STAA Digest V B 1 a]
PROTECTED ACTIVITY UNDER STAA; EMPLOYEE COMPLAINTS ABOUT THE CONDITION OF TRUCKS MAY CONSTITUTE PROTECTED CONDUCT

In Manske v. UPS Cartage Services, Inc. , No. 2:10cv00320JAW, 2012 WL 1580770 (D.Me. May 4, 2012), within the first thirty days of his employment with the employer, the plaintiff, a truck driver, made numerous complaints about the condition of the vehicles to his supervisors. Despite the company's "official Open Door Policy' which encouraged employees to bring any concerns to any member of management," the plaintiff's complaints incurred the ire of management and convinced management to extend his probationary period of initial employment. Manske at *6. The employer explained that it extended his probationary period because they believed his complaints evidenced an "attitude of confrontation and challenge." Id. at *8. Before his extended probationary period concluded, the employer decided that it did not want the plaintiff as a permanent employee and terminated his employment, explaining that "he did not seem like he was happy" at the company. Id. at *9.

The defendant challenged whether the plaintiff's reports about the condition of the vehicles protected activity under STAA, and in response, the plaintiff cited several DOT regulations that require the driver to report defects or deficiencies in vehicles. Ultimately, the court denied the motion for summary judgment, finding that "the complaints of a trucking company employee to the company about the condition of its trucks may constitute protected conduct." Id. at *1.

[STAA Digest V B 1 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 B]
PROTECTED ACTIVITY; MERELY ASKING ABOUT RESPONDENT'S POLICIES IS NOT PROTECTED ACTIVITY

In Jackson v. Major Transport Inc. , ARB No. 09-113, ALJ No. 2009-STA-22 (ARB May 31, 2011), the Complainant did not prove that he engaged in protected activity under the STAA when he merely inquired about the Respondent's policy. The Complanant had asked "about the short haul description and other company policies" that were given to him when he applied for a position with the Respondent. The Complainant asked whether the company was authorizing drivers to run illegally and whether drivers were expected to bypass scales if they were overloaded. There was no evidence in the record, however, that the Complainant made a complaint about having to drive illegally, was told that he would have to drive illegally and made a complaint of it, or refused to drive for any reason.

[STAA Digest V B 1 a]
PROTECTED ACTIVITY; COMPLAINT CLAUSE; COMPLAINT ABOUT OPERATING A TRUCK WITH A FAULTY QUALCOMM

In Fabre v. Werner Enterprises, Inc. , ARB No. 09-026, ALJ No. 2008-STA-10 (ARB Dec. 22, 2009), the ARB found that substantial evidence supported the ALJ's finding that complaints about a malfunctioning Qualcomm were not protected activity under the complaint clause of the STAA whistleblower provision, 49 U.S.C.A. § 31105(a)(1)(A). A Qualcomm is a satellite communication device used for recording driver hours. The Board stated that "[o]perating a truck with a faulty Qualcomm is not a violation of a motor vehicle regulation unless the employee fails to use a paper back-up. The hours of service regulation in effect at the time the alleged violation occurred provided a choice of using the traditional paper grid form to record hours manually or using an automatic on-board recording device. Therefore, operating a truck with a faulty Qualcomm device is not in itself a violation of the regulation." USDOL/OALJ Reporter at 6 (footnote omitted).

V B 1 a Internal Complaints

The Secretary held that it would be inconsistent with the purpose of the STAA to limit the covergage of paragraph (a) of section 2305 only to those complaints filed with governmental agencies. The purpose of the Act is to promote safety on the highways. The Secretary stated that an employee's safety complaint to his employer is the initial step in achieving this goal. Therefore, a driver's reporting of defects in the vehicles he has driven is an acitivity protected under section 2305(a). The fact that he may not have pointed to a particular commercial motor vehicle safety standard that was violated does not deprive him of coverage under the Act. Davis v. H.R. Hill, Inc. , 86-STA-18 (Sec'y Mar. 19, 1987).

[STAA Whistleblower Digest V B 1 a]
PROTECTED ACTIVITY; COMMUNICATIONS TO COWORKERS; INTERNAL COMPLAINTS; LAW UNRESOLVED IN SECOND CIRCUIT

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 ARB had determined that the Complainant's red tagging of trailers for safety defects was not protected activity because the communicative function of such tagging was intended for coworkers rather than supervisors. The Second Circuit did not reach this issue because it affirmed the Board on other grounds. In a footnote it observed that it had never squarely addressed whether section 31105(a)(1)(A) covers internal complaints, and observed that while other circuits and DOL had found coverage for internal complaints, the Second Circuit had construed similar language in the FLSA as not protecting informal complaints to supervisors.

[STAA Whistleblower Digest V B 1 a]
PROTECTED ACTIVITY; REFUSAL TO SUBMIT TO RANDOM DRUG TEST

In Bergman v. Schneider National , 2004 STA 19 (ALJ Mar. 9, 2004), the ALJ recommended dismissal of a complaint that was based on the Complainant's refusal to submit to a random drug test under the employer's drug test policy. The ALJ recommended dismissal because the Complainant failed to establish that refusal to submit to a random drug test was protected activity under the STAA.

[STAA Digest V B 1 a]
INTERNAL COMPLAINTS IN FLSA ANTI-RETALIATION ACTION

In Valerio v. Putnam Associates, Inc. , No. 98-1399 (1st Cir. Apr. 9, 1999), the court considered whether the Fair Labor Standards Act anti-retaliation provision, 29 U.S.C. § 215(a)(3), protects written internal complaints. Noting a spilt in the circuits, the First Circuit aligned itself with the Sixth, Eighth, Tenth and Eleventh Circuits in deciding that an internal complaint to the employer may satisfy section 215(a)(3). In rendering its decision, the court relied in part on its decision in Clean Harbors Environ. Serv., Inc. v. Herman , 146 F.3d 12 (1st Cir. 1998), which interpreted the similar anti-retaliation provision of the Surface Transportation Assistance Act, 49 U.S.C. § 31105(a)(1)(A). The court rejected the Defendant's contention that Clean Harbors should not guide the interpretation of the FLSA provision because of different purposes and enforcement schemes of the FLSA and the STAA essentially, that while the STAA concerns public health and safety and therefore there is a need for dispatch, such immediacy is not present for FLSA complainants. The court noted other objects of the STAA anti-retaliation scheme, such as the policy of not forcing employees to go straight to the government with safety concerns but permitting an employer to remedy problems voluntarily and quietly. The court also noted that the "fear of economic retaliation might operate to induce aggrieved employees to accept substandard conditions." [citation omitted]

The court, however, held that "not all abstract grumblings will suffice to constitute the filing of a complaint with one's employer." The court wrote that "written comments and criticisms made to an employer may not always amount to filed complaints [under the FLSA]." Thus, the court decided that, like the panel in Clean Harbors under the STAA, "we have little choice but to proceed on a case-by-case basis, addressing as a matter of factual analysis whether the internal communications to the employer were sufficient to amount to the 'filing of any complaint' within the statutory definition."

[STAA Digest V B 1 a]
INTERNAL COMPLAINT

In Clean Harbors Environmental Services, Inc., v. Herman , __ F.3d __, No. 97-2083, 1998 WL 293060 (1st Cir. June 10, 1998) (case below 95-STA-34), the First Circuit held that the STAA, 49 U.S.C. § 31105(a)(1)(A), protects an employee who has filed purely intracorporate complaints about alleged violations of federal law. The court relied on the fact that the statutory language is susceptible to more than one reading; that Congress reenacted the STAA without change in the fact of long-standing administration interpretation of the STAA and similar language in other statutes to include internal complaints; that this provision is "the sort of interstitial law making which Congress left to the agency...."; and that DOL's policy choice in interpreting the statute to include internal complaints "is eminently reasonable." 1998 WL 293060 * 7 (citation omitted).

[STAA Digest V B 1 a]
INTERNAL COMPLAINTS PROTECTED UNDER THE STAA

Internal complaints to management are protected activity under the whistleblower provision of the STAA. Goggin v. Administrative Review Board , No. 97-4340 (6th Cir. Jan. 15, 1999)(unpublished) (available at 1999 WL 68694) (case below 1996-STA-25).

INTERNAL COMPLAINTS; COMPLAINANT'S UNSUPPORTED ASSERTIONS
[STAA Digest V B 1 a]

Internal complaints to management are protected activity under the whistleblower provision of the STAA; the complainant, however, must prove by a preponderance of the evidence that he actually made such an internal complaint. In Williams v. CMS Transportation Services, Inc., 94-STA-5 (Sec'y Oct. 25, 1995), the Complainant failed to carry that burden where there was no evidence or written documentation supporting the Complainant's allegations that he made internal complaints.

V B 1 a Evidence of actual violation versus reasonable danger; report to state highway patrol and scale house officer

In Ass't Sec'y & Lansdale and Lee v. Intermodal Cartage Co., Ltd., 94-STA-22 (ALJ Mar. 27, 1995), the ALJ, in her Recommended Decision and Order, found that where the circumstantial evidence did not establish the weight of containers at the time the Complainants refused to drive, relief under Section 33105(a)(1)(B)(i) was not available because it was not established that a federal weight regulation was violated. Nonetheless, much the same evidence established a Section 33105(a)(1)(B)(ii) violation because the manner in which the containers had been loaded (space at the rear with excessive weight on the drive axles) established a real danger of accident, injury or serious impairment to the health of the drivers or others. In addition, the ALJ found that the Complainant's reporting of the unsafe condition to a state highway patrol officer and a scale house officer was protected under Section 31105(a)(1)(A).

V B 1 a Internal complaints

In Doyle v. Rich Transport, Inc., 93-STA-17 (Sec'y Apr. 1, 1994), the Secretary indicated that internal complaints to management are protected activity in all Federal circuits under the STAA. The Secretary noted that the decision of Brown & Root v. Donovan, 747 F.2d 1029 (5th Cir. 1984), in which the court held that internal complaints are not protected activity in ERA cases, had not been extended to STAA cases.

V B 1 a Threat to enforce motor carrier safety regulation

A threat to enforce motor carrier safety regulations is protected under the STAA's employee protection provision, 49 U.S.C. § 31105(a)(1)(A) (the "complaint" section). Williams v. Carretta Trucking, Inc., 94-STA-7 (Sec'y Feb. 15, 1995) (threat to drive truck to highway weigh station to have truck inspected).

V B 1 a Internal complaints

The Secretary of Labor takes the position that internal complaints to superiors are protected under the STAA's complaint section. The Secretary noted that the ERA decision in Brown & Root v. Donovan, 747 F.2d 1029 (5th Cir. 1984), holding that an employee must "file a formal complaint with an appropriate government agency" had not been extended by the Fifth Circuit to STAA cases, and that he would decline to adopt the Brown & Root holding for the reasons stated in Davis v. H.R. Hill, Inc., 86-STA-18 (Sec'y Mar. 19, 1987).

Stiles v. J.B. Hunt Transportation, Inc., 92-STA-34 (Sec'y Sept. 24, 1993).

V B 1 a Internal complaints

A complainant's failure to file a complaint or initiate proceedings with OSHA is not the only conduct protected under section 2305(a). Citing to Hufstetler v. Roadway Express, Inc. , 85-STA-8 (Sec'y Aug. 21, 1986), The Secretary held that complaints to others, including internal complaints to an employer or supervisor, are protected under section 2305(a). Juarez v. Ready Trucking Co. , 86-STA-27 (Sec'y July 7, 1988).

V B 1 a Internal complaints - STAA

Under the burdens of proof in STAA proceedings, a complainant must show that he engaged in protected activity, that he was subjected to adverse action, and that the respondent was aware of the protected activity when it took adverse action. A complainant also must present evidence sufficient to raise the inference that the protected activity was the likely reason for the adverse action. Roadway Exp., Inc. v. Brock, 830 F.2d 179, 181 n.6 (11th Cir. 1987). An employee is protected under STAA Section 405(a) if he "has filed any complaint or instituted or caused to be instituted any proceeding relating to a violation of a commercial motor vehicle safety rule, regulation, standard, or order . . . ." 49 U.S.C. app. § 2305(a). See Davis v. H.R. Hill, Inc., 86-STA-18 (Sec'y Mar. 18, 1987), slip op. at 3-4 (both internal and external safety complaints protected). Cf. Bivens v. Louisiana Power and Light, 89-ERA-30 (Sec'y June 4, 1991), slip op. at 4-5 (citing cases) (internal safety complaints to employer protected under environmental whistleblower laws).

Reed v. National Minerals Corp., 91-STA-34 (Sec'y July 24, 1992).

V B 1 b Counseling other employees about DOT regulations

A Complainant engaged in protected activity when he declined a dispatch due to fatigue, declined to continue driving due to fatigue, and when he complained about or "protested" discipline received because of these work refusals and because he had counseled other drivers about DOT regulations.

Smith v. Yellow Freight System, Inc., 91-STA-45 (Sec'y Mar. 10, 1993), slip op. at 13.

[STAA Digest V B 1 c i]
PROTECTED ACTIVITY; CALLING OR THREATENING TO CALL THE FMCSA

In Carter v. Marten Transport, Ltd. , ARB Nos. 06-101, 06-159, ALJ No. 2005-STA-63 (ARB June 30, 2008), on the day that the Complainant met with management to discuss his safety concerns with his assigned truck, the Complainant threatened to call, and did then call, the FMCSA and state and local police from the Respondent's employee break room. The ARB held: "When Carter called FMCSA, he engaged in STAA-protected activity because he was filing a complaint or beginning a proceeding related to a violation of a motor vehicle safety regulation, standard, or order. Threatening to file a complaint based on a reasonable belief regarding the existence of a violation is also protected."

[STAA Digest V B 1 c i]
PROTECTED ACTIVITY; MERE THREAT TO "GO TO THE DOT" FOUND NOT TO BE PROTECTED ACTIVITY UNDER THE CONTEXT IN WHICH THE THREAT WAS MADE

In Jackson v. Eagle Logistics, Inc. , ARB No. 07-005, ALJ No. 2006-STA-3 (ARB June 30, 2008), the Complainant's threat to "go to the DOT" did not rise to the level of "filing a complaint" sufficient to constitute protected activity under the STAA where it was made in the context of telephone call from the Respondent's President who was asking why the Complainant was arriving late for scheduled trips, and the Complainant responded by swearing at the President and threatening contact with the DOT, and where in the month following the threat he never attempted to actually file any type of complaint with the DOT. The President had phoned the Complainant after he had been late three times within the first few weeks of work and had falsified his driver's log.

V B 1 c i Communication in related proceedings

Information and testimony obtained in related proceedings in turn may precipitate or otherwise bear on STAA complaints or investigations. Cf. Donovan v. R.D. Andersen Const. Co., Inc., 552 F. Supp. 249, 251-253 (D. Kan. 1982) (employee's communication to the media protected because it could result in institution of OSHA proceedings).

Moyer v. Yellow Freight System, Inc., 89-STA-7 (Sec'y Oct. 21, 1993).

[STAA Whistleblower Digest V B 1 c i]
PROTECTED ACTIVITY; COMPLAINANT'S FAILURE TO COMPLY WITH EMPLOYER'S POLICY REQUIRING LOGGING TIME SLEEPING AS "OFF DUTY" IS NOT PROTECTED ACTIVITY

In Blackann v. Roadway Express, Inc. , No. 04-4026 (6th Cir. Dec. 15, 2005) (unpublished) (available at 2005 WL 3448280) (case below ARB No. 02-115, ALJ No. 2000-STA-38), the Sixth Circuit affirmed the ARB's holding that the Complainant failure to comply with the Respondent's policy of requiring that drivers record time sleeping as "off duty" even when the truck does not have a sleeper berth was not protected activity under the STAA. Although the Complainant cited that the DOT regulation defining on duty time at 49 C.F.R. § 395.2(4), the ARB had correctly found that this regulation explicitly left it to employers to determine the manner of recording tour of duty time.

[STAA Whistleblower Digest V B 1 c i]
PROTECTED ACTIVITY; ALLEGATION OF LEAKING BRAKE FLUID

An allegation of leaking brake fluid clearly is within the ambit of DOT's safety regulations and is protected activity under Section 31105(a)(1)(A) of the STAA. Densieski v. La Corte Farm Equipment , ARB No. 03-145, ALJ No. 2003-STA-30 (ARB Oct. 20, 2004).

[STAA Whistleblower Digest V B 1 c i]
PROTECTED ACTIVITY; COMPANY POLICY ON RECORDING STOPS AS OFF-DUTY TIME

Where, under federal regulations, it was the employer's choice whether the driver should record stops made during the tour of duty as off duty time, so long as the driver was relieved of responsibility for the vehicle, the company could not be found to have required the Complainant to falsify his logs despite the Complainant's assertion to the contrary. Accordingly, the Complainant did not engage in protected activity when he refused to comply with company policy with regard to logging his time on the theory that the company's policy was for the purpose of avoiding federal limitations on driving time. Hogquist v. Greyhound Lines, Inc. , ARB No. 03-152, ALJ No. 2003-STA-31 (ARB Nov. 30, 2004).

[STAA Whistleblower Digest V B 1 c i]
PROTECTED ACTIVITY; REFUSAL TO LOG OFF DUTY TIME IN CONTRAVENTION OF RESPONDENT'S POLICY

The Complainant alleged that he was discharged in violation of the STAA whistleblower provision for refusing to falsify his driver log books. Specifically, Complainant logged on duty during his employerBmandated off duty break periods. The ARB, however, agreed with the ALJ that the Complainant was not engaged in protected activity when he refused to comply with the Respondent's clearly articulated policy concerning the logging of off duty time. Complainant failed to show that his discharge for claiming on duty time during certain mail runs violated regulations for computing on duty time for drivers under the federal motor carrier hours of service regulations at 49 C.F.R. § 395.2 (2001), and he accordingly was not fired in contravention of 49 U.S.C.A. § 31105(a)(l)(B)(i). The ALJ properly granted summary judgment pursuant to 29 C.F.R. § 18.40. Hardy v. Mail Contractors of America , ARB No. 03 007, ALJ No. 2002 STA 22 (ARB Jan. 30, 2004).

V B 1 c i Demand of removal of disciplinary letter from personnel file

The complainant's complaint to his supervisor about a letter of information demanding that it be removed from his file was found in Hornbuckle v. Yellow Freight System, Inc., 92- STA-9 (Sec'y Dec. 23, 1992), to be protected activity under STAA section 405(a). The letter of information, given in this instance for delaying freight, comprised a step progressing an employee in the respondent's disciplinary sequence. The delay was related to the complainant's stopping to sleep.

V B 1 c i Resolved safety complaints

The fact that a driver's safety complaints filed with the DOT and OSHA had been subsequently considered and either resolved or dismissed, does not transform them into non-protected conduct, nor eliminate the possibility of subsequent retaliatory action by the employer. Stack v. Preston Trucking Co. , 86- STA-22 (Sec'y Feb. 26, 1987).

V B 1 c i Scheduling of witnesses

Respondent's behavior in telling Complainant not to appear the day on which he was subpoenaed as a witness in the hearing on his brother's STAA complaint was not wrong or a violation of law where Respondent's attorney had worked out a schedule with the hearing judge that only one of the driver-witnesses would appear on that day, with the other drivers appearing on subsequent days.

All of the drivers had been subpoenaed for that day, and Respondent had a legitimate business reason to stagger the testimony of the drivers to permit some drivers to be at work each day. In addition, when Complainant showed up at the time he was subpoenaed for rather than a subsequent day, there was no attempt to interfere with his testimony, and he was paid for the day although he did not work. The other drivers testified on a different day.

Nolan v. A.C. Express, 93-STA-38 (Sec'y May 13, 1994).

V B 1 c i Miscellaneous; violation of company disciplinary policy

In Brothers v. Liquid Transporters, Inc., 89-STA-1 (Sec'y Feb. 27, 1990), slip op. at 8-9, the Secretary held that the employee protection provision of the STAA did not recognize an action for an employer's alleged violation of company policy as set forth in the Employee Handbook -- specifically, that suspension rather than termination was the appropriate discipline under the circumstances. The Secretary noted that the company policy violations alleged -- the type of discipline that could be imposed -- did not implicate commercial motor vehicle health or safety matters.

V B 1 c i Testimony in proceeding "relating" to safety violation

The pertinent inquiry under STAA section 2305(a) is whether the complainant's testimony was offered in a proceeding relating to a safety violation. Davis v. H.R. Hill Inc., 86-STA-18 (Sec'y Mar. 19, 1987), slip op. at 5-6 (complaints to employer relating to commercial motor vehicle safety concerns protected although complainant may not cite to particular regulatory standards); Nix v. Nehi RC Bottling Co., Inc., 84-STA-1 (Sec'y July 13, 1984), slip op. at 8-9 (protection extends to making complaint raising violation of safety rule, regulation, standard, or order; protection is not limited to violation of Federal law). Cf. Aurich v. Consolidated Edison Co. of New York, Inc., 86-CAA-2 (Sec'y Apr. 23, 1987), slip op. at 4-5 (particular antidiscrimination statute alleged to have been violated needed not in fact be applicable so long as the complaint concerns any requirements under the statute). The proceeding need only be "related to" a safety violation. The violation need not comprise the only or even the predominant subject of the proceeding.

Moyer v. Yellow Freight Systems, Inc., 89-STA-7 (Sec'y Nov. 21, 1989), aff'd on this ground and rev'd in part on another ground sub nom., Yellow Freight System, Inc. v. Martin, 954 F.2d 353 (6th Cir. 1992).

V B 1 c i Testimony

This is a follow up to the Secretary's decision in Moyer . The issue on which the Secretary had been reversed was whether the Respondent had adequate notice and opportunity to litigate the section 405(a) allegation. The Sixth Circuit refused to enforce the Secretary's order and remanded the case to provide the Respondent proper notice and a full and fair opportunity to respond. Yellow Freight System, Inc. v. Martin, 954 F.2d 353 (6th Cir. 1992). The Secretary remanded to the ALJ. Moyer v. Yellow Freight System, Inc., 89-STA-7 (Sec'y May 24, 1993) (order of remand).

On remand, the ALJ conducted a supplemental hearing and concluded that the Secretary had incorrectly assumed, in finding that a section 405(a) violation had been alleged, that the co-worker's hearing involved fitness to return to duty, and therefore was related to safety. Rather, the ALJ concluded that the purpose of the hearing was solely to provide a forum in which to show why the driver should not be fired for failing to provide required documentation (a physician's statement certifying the driver's fitness for returning to duty). Moyer v. Yellow Freight System, Inc., 89-STA-7 (ALJ May 24, 1993).

[Editor's note: The Sixth Circuit did not state that a new theory could not be raised at the ALJ level, only that if a new theory is raised, the respondent must be given full and fair opportunity to respond.]

[STAA Whistleblower Digest V B 1 c ii]
PROTECTED ACTIVITY; REQUESTS FOR ADDITIONAL MATERIALS TO COMPLETE REPAIR OF VEHICLES WAS NOT PROTECTED ACTIVITY WHERE SUCH REQUESTS WERE MERELY PART OF THE ORDINARY COURSE OF BUSINESS

In Williams v. Capitol Entertainment Services, Inc. , ARB No. 05-137, ALJ No. 2005-STA-27 (ARB Dec. 31, 2007), the ARB affirmed the ALJ's finding that the Complainant's concerns about equipment and inventory were not protected activity because they did not directly impact safety because the Respondent made arrangements with other service providers to make repairs outside the ability of its shop. The ARB found that Complainant's requests were merely for additional materials to complete the daily repair of vehicles in the ordinary course of business. The Complainant also complained about inadequate items available for necessary repairs. The ARB found, however, that the Respondent acquired the majority of its parts from outside vendors, and the Complainant was required, in completing his job requirements, to request inventory from the Respondent on a regular basis.

[STAA Digest V B 1 c ii]
PROTECTED ACTIVITY; SUPPORT OF CO-WORKER IN DRIVING LOG DISPUTE

In Roadway Express v. U.S. Dept. of Labor, Administrative Review Board , No. 06-1873 (7th Cir. July 25, 2007), the Complainant alleged that he had been fired in retaliation for his support of a co-worker in a grievance hearing in which the co-worker had been accused of falsifying his driving log. The Complainant filed a statement in the proceeding asserting that the Respondent had asked him to falsify his driving log. On appeal, the Respondent argued that this was not protected activity because it was not a "proceeding relating to a violation of a commercial motor vehicle safety rule, regulation, standard, or order. " 49 U.S.C. § 2305(a). The Respondent thus argued that the alleged falsification of driving logs was unrelated to vehicle safety. DOL in contrast argued that "driving logs serve important safety purposes of ascertaining whether a driver has reached his maximum hours." Slip op. at 6 (quoting DOL's position). The court agreed with the DOL position, noting that two other circuits had characterized driving logs as a measure of safety compliance, and driving-log rules as safety regulations. The court held that if a manager of the Respondent had, as the Complainant testified, ordered the co-worker to falsify driving logs, such an order would have been a violation of federal safety regulations and therefore the Complainant's actions protected under the STAA.

V B 1 c ii Testimony at grievance proceeding concerning co- worker's discharge is protected if testimony is related to safety

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. Sias v. City Demonstration Agency, 588 F.2d 692, 694-695 (9th Cir. 1978; Novotny v. Great Am. Sav. & Loan Ass'n, 539 F. Supp. 437, 449-450 (W.D. Pa. 1982). Rather, the purpose of preserving unobstructed channels of information is served if individuals are protected for providing testimony concerning possible violations. Cf. Pettway v. American Cast Iron Pipe Co., 411 F.2d at 1007 (charing employee protected despite incorrect information presented in communication with or proceeding before regulatory agency). The statutory "relating to" language does not restrict protection to participation in STAA proceedings. The language also contemplates participation in DOT proceedings and proceedings under other Federal, and state laws; arbitration; and employer hearings.

In the instant case, Complainant's co-worker grieved his discharge, and Complainant assisted him in challenging the standards of proof used by Respondent in determining whether drivers may remain on the sick board or refuse work when ill or fatigued. If the standards are unreasonably strict, drivers may feel compelled to work when ill or fatigued, and may encourage drivers to work in violation of DOT regulations. See 49 C.F.R. § 392.3. The Secretary concluded that testimony offered in a grievance hearing which reveals the manner in which an employer's sick leave policies may result in violations of DOT regulations could bear on STAA complaints and investigations, and protection of employees who participate in such proceedings would serve the ends of preventing agencies' channels of information being dried up by employer intimidation.

The Secretary found that the ALJ erred by focusing on the "true purpose" of the hearing -- rather, "a proceeding 'relating to' a safety violation is merely one in which information about safety is disclosed."

Moyer v. Yellow Freight System, Inc., 89-STA-7 (Sec'y Oct. 21, 1993).

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)."

[STAA Digest V B 1 c ii]
PROTECTED ACTIVITY; GATHERING OF EVIDENCE

Gathering evidence to be used to support a protected complaint is itself protected under whistleblower provisions. Michaud & Ass't Sec'y v. BSP Transport , 95-STA-29 (ARB Jan. 6, 1997), citing Mosbaugh v. Georgia Power Co., 91-ERA-1 and 11 , slip op. at 7-8 (Sec'y Nov. 20, 1995)(tape recording); Adams v. Coastal Production Operators, Inc. , 89-ERA-3, slip op. at 9 and n.4 (Sec'y Aug. 5, 1992)(photographing oil spill); Haney v. North American Car Corp. , 81-SDW-1, slip op. at 4 (Sec'y June 30, 1982)(tape recording) (all under analogous employee protection provisions of other statutes).

V B 1 c 2 Participation in hearing

Disciplining an employee for not being available for work at time when the employer knows that the employee is participating in a hearing related to motor carrier safety is an STAA violation. Nolan v. A.C. Express, 93-STA-38 (Sec'y May 13, 1994) ( citing Moyer v. Yellow Freight System, Inc., 89- STA-7 (Sec'y Oct. 21, 1993).

V B 1 c ii Testimony at grievance proceeding of co- worker

A complainant's testimony, offered in a grievance proceeding on behalf of a co-worker, is protected activity under the STAA, where the proceeding related "to a violation of a commercial motor vehicle safety rule, regulation, standard, or order ...." In the instant case, the co-worker challenged being discharged when too ill and impaired to report for driving duties, and complainant had testified that he personally was involved in assisting the co-worker during his illness and could attest to his incapacity.

Moyer v. Yellow Freight Systems, Inc., 89-STA-7 (Sec'y Nov. 21, 1989), aff'd in part and rev'd in part both on other ground sub nom., Yellow Freight System, Inc. v. Martin, 954 F.2d 353 (6th Cir. 1992).

V B 1 c iii Complaint relating to commercial motor vehicle safety standard; shop conditions

The complaint of a driver/mechanic to OSHA about conditions in the school bus maintenance shop, including inadequate equipment for tire repair and the absence of exhaust hoses constitutes protected activity "relating to" a commercial motor vehicle safety standard. Jacobson v. Beaver Transportation, Inc., 92-STA-17 (Sec'y Aug. 31, 1992).

[STAA Digest V B 1 c iii]
PROTECTED ACTIVITY; COMPLAINT TO SUPERVISOR IS PROTECTED EVEN IF SUCH COMPLAINTS WERE IN NORMAL COURSE OF BUSINESS

In Zurenda v. J&K Plumbing & Heating Co. Inc. , 97-STA-16 (ARB June 12, 1998), the ALJ erred in holding that although Complainant had engaged in protected activity under STAA when he complained to higher level management about certain safety issues related to the trucks, Complainant's complaints to his own supervisor about safety problems did not "rise to the level of protected activity, as the normal course of business was for Complainant to inform his supervisor as to any repairs that needed to be made." The ARB held that under the STAA "a safety related complaint to any supervisor, no matter where that supervisor falls in the chain of command, can be protected activity." Id . @ 5.

V B 1 c iii Protection of complaints about internal shop conditions

Complainant's safety complaints were protected under STAA section 405(a) where he complained internally about exposures in the inadequately ventilated maintenance shop to truck exhaust, excessive noise, and paint fumes, and where he complained to OSHA after experiencing extreme dizziness upon inhaling paint fumes. Working conditions adversely affecting the health of tractor mechanics could interfere with their inspection, repair, and maintenance of commercial motor vehicles, resulting in violation of Department of Transportation regulations. See, e.g., 49 C.F.R. § 392.3, 393, 396. Such complaints sufficiently relate to commercial motor vehicle violations to invoke section 405(a) protection. Gay v. Burlington Motor Carriers, 92-STA-5 (Sec'y May 20, 1992), citing Yellow Freight System, Inc. v. Martin, 954 F.2d 353, 357 (6th Cir. 1992).

V B 1 c iv Report of safety complaints

Where the Complainant was stopped by a state highway enforcement officer, who issued the Complainant a citation for numerous safety defects and who angrily threatened to impound the defective truck, and the Complainant explained that he had repeatedly complained to the Respondent and had reported at least one of the defects on the vehicle inspection report (which he showed to the officer), and the Complainant had a heated discussion about the incident with a superior, the Complainant was engaged in protected activity under the whistleblower provision of the STAA. It is not required that the safety complaints be made to the Department of Transportation or any other agency. Davis v. H.R. Hill, Inc., 86-STA-18 (Sec'y Mar. 19, 1987).

Gagnier v. Steinmann Transportation, Inc., 91-STA- 46 (Sec'y July 29, 1992).

V B 1 c iv PROTECTED ACTIVITY; REFUSAL TO PLEAD GUILTY TO CITATION

In Schuler v. M & P Contracting, Inc., 94-STA-14 (ALJ June 14, 1995), adopted (Sec'y Sept. 27, 1995) , the Complainant failed to establish that he engaged in protected activity when he refused to plead guilty to an overload citation. In order to qualify as protected activity, the Complainant was required to establish that the refusal to plead guilty was based in part on safety concerns. The Complainant only submitted a signed statement that the refusal was precipitated by a safety concern after he became aware that it was a required element of a STAA whistleblower complaint. Previously, he repeatedly indicated that his reasons were a belief that the Respondent had a contractual obligation to pay the fine and that he did not want it to affect his driving record.

V B 1 c iv Filing complaint with state D.O.T.

Protected activity under the STAA includes filing a complaint with the state department of transportation. Ass't Sec'y & Dougherty v. Bjarne Skjetne, Jr. d/b/a Bud's Bus Service, 94-STA-17 (Sec'y Mar. 16, 1995).

V B 1 c iv Complaint to state authority

Complainant engaged in protected activity when he filed a complaint with the South Carolina Department of Labor. Nix v. Nehi-RC Bottling Co., Inc., 84-STA-1 (Sec'y July 13, 1984) (first STAA decision by the Secretary).

V B 1 c v Support for co-worker may be protected activity

Protected activity under the STAA includes expressing support for a co-worker who has filed a claim of wrongful discharge for filing a complaint with the state department of transportation. Ass't Sec'y & Dougherty v. Bjarne Skjetne, Jr. d/b/a Bud's Bus Service, 94-STA-17 (Sec'y Mar. 16, 1995).

[STAA Whistleblower Digest V B 1 c v]
PROTECTED ACTIVITY; STATEMENT PROVIDED IN CO-WORKER'S GRIEVANCE HEARING

In Cefalu v. Roadway Express, Inc. , ARB Nos. 04-103, 04-161, ALJ No. 2003-STA-55 (ARB Jan. 31, 2006), the Complainant provided a statement on behalf of a co-worker who had grieved a discharge for allegedly falsifying his driving log. The Complainant's statement alleged that a superior had asked him to falsify a log in violation of the hours of service regulations. The ARB found that the ALJ correctly found that such testimony related to motor vehicle safety and was therefore protected activity under the STAA.

[STAA Whistleblower Digest V B 2]
PROTECTED ACTIVITY; REFUSAL TO DRIVE UNDER SECTION 31105(a)(1)(B)(i) [THE "ACTUAL VIOLATION CLAUSE"] DOES NOT REQUIRE A SHOWING THAT THE COMPLAINANT SOUGHT TO HAVE THE CONDITION CORRECTED, AND WAS REFUSED

In Tablas v. Dunkin Donuts Mid-Atlantic , ARB No. 11-050, ALJ No. 2010-STA-24 (ARB Apr. 25, 2013), the Complainant, and experienced driver, told the dispatcher that he was apprehensive about an assigned trip to Massachusetts because of winter weather, but was told that he must make the attempt and that there was no bad weather at the depot in New Jersey. Later the Complainant asked not to be required to complete the trip because of the weather, but was told that no other drivers had reported problems and that if he encountered problems company policy was to pull over at the next safe place. The Complainant finished the first leg of his dispatch, but realizing that he left his EZ pass in his regular truck, returned to the depot to pick it up. Upon making two sharp right turns in the depot, the rig's air lines became unhooked. The Complainant prepared a report and submitted it to the dispatcher. The dispatcher called for a repair. The Complainant asked if he could come back in the morning to continue the trip after the repair, stating that he would not be getting to the destination in Massachusetts any later considering the state of the roads. When he returned in the morning, he was told that another driver had transported the load, and that he could go home for the day. A few days later, the Complainant was fired for refusing to complete the run.

Following a hearing, the ALJ determined that the Complainant's refusal to drive based on the air lines problem was not protected activity because, although the Complainant reported the problem, there was no evidence that he sought to have it corrected and was refused. The ALJ also found that the refusal to drive because of the weather conditions was not protected activity. The ALJ found that some earlier complaints about overweight loads were protected activity, but that there had been no causal connection between that activity and his termination.

On appeal, the ARB focused on the refusal to drive based on the problem with the air lines, and did not reach the refusal to drive based on the weather. The ARB found the ALJ erred in her analysis. The ARB explained:

Tablas argued below that his complaints were protected under Section 31105(a)(1)(B)(i) and (B)(ii). Subsection (B)(i) protects an employee when "the employee refuses to operate a vehicle because the operation violates a regulation, standard or order of the United States related to commercial motor vehicle safety or health." 49 U.S.C.A. § 31105(a)(1)(B)(i). Subsection (B)(ii) protects an employee who refuses to drive because of a reasonable apprehension of serious injury to himself or the public because of the vehicle's unsafe condition, and requires a showing that the employee "sought from the employer, and been unable to obtain, correction of the unsafe condition." 49 U.S.C.A. § 31105(a)(1)(B)(ii), (a)(2). STAA's work refusal clause thus protects two categories of work refusals, commonly referred to as the "actual violation" and "reasonable apprehension" categories. Pollock v. Continental Express, ARB Nos. 07-073, 08-051; ALJ No. 2006-STA-001, slip op. at 8 (ARB Apr. 7, 2010). Under the actual violation category, i.e., subsection (B)(i), the refusal to drive is protected where operating a vehicle would have violated a motor vehicle regulation, standard, or order. Id. Unlike subsection (B)(ii), which requires the complainant to have requested and been denied correction of the unsafe condition, no other showing is required under (B)(i).

USDOL/OALJ Reporter at 6 (footnote omitted). The ARB found that the facts of the case satisfied Section (B)(i), and therefore the Complainant engaged in protected activity.

The ARB went on to find that under the "contributing factor" test, although the work refusal stemmed in part from the Complainant's concerns about the weather, the reporting of the air lines problem contributed to, and was inextricably intertwined with the Complainant's termination in violation of the STAA.

The ARB remanded for the ALJ to determine "whether the company can show, by clear and convincing evidence, that it would have taken the same action against Tablas absent the protected activity.... In making this determination, the record evidence in this case appears to show no basis for termination other than Tablas' refusal to drive the truck the night of December 13, 2007, which we have determined violated the Act since the refusal was protected activity under section 31105(a)(1)(B)(i). Nonetheless, we remand to the ALJ to make that determination in the first instance." USDOL/OALJ Reporter at 9 (citation omitted).

[STAA Digest V B 2]
PROTECTED ACTIVITY; MEMORIALIZING SCHEDULED REPAIRS IN A VIR IS NOT PROTECTED ACTIVITY, AND DELIVERY OF VEHICLE TO REPAIR SHOP FOR SCHEDULED REPAIRS IS NOT A REFUSAL TO DRIVE

Although completion of a vehicle inspection report (VIR) can constitute protected activity under the whistleblower provision of the STAA, in Carpentier v. Golden Valley Transfer, Inc. , ARB No. 08-116, ALJ No. 2008-STA-45 (ARB Feb. 26, 2010), the ARB agreed with the ALJ that the Complainants completion of such a form was not protected activity where the matters listed on the VIR merely memorialized scheduled repairs. Moreover, merely delivering a vehicle to the repair shop for scheduled repairs does not constitute a refusal to drive. The ARB wrote that [l]ogically, an employee cannot refuse to drive a vehicle that an employer has already put out of service for repairs. USDOL/OALJ Reporter at 8.

[STAA Whistleblower Digest V B 2]
PROTECTED ACTIVITY; ACTUAL VIOLATION OPERATING A TRUCK WITH A FAULTY QUALCOMM

In Fabre v. Werner Enterprises, Inc. , ARB No. 09-026, ALJ No. 2008-STA-10 (ARB Dec. 22, 2009), the ARB found that the Complainant did not engage in protected activity under the actual violation element of the STAA whistleblower provision based on his notification to his Employer that his Qualcomm device had failed, where the Employer's driver's handbook, in compliance with the applicable DOT regulation, required that a blank logbook be kept in every truck for use by the driver in the event of a Qualcomm failure. A Qualcomm is a satellite communication device used for recording driver hours. Since the Complainant was aware of the handbook and the instruction to use a paper log, the ARB found that he could not have reasonably believed that the faulty Qualcomm device violated safety regulations. The ARB agreed with the ALJ that the Complainant's "notification to [the Respondent] that his Qualcomm device had failed was not a notification of a violation, but rather was an integral part of compliance with the regulations." USDOL/OALJ Reporter at 7.

[STAA Digest V B 2]
PROTECTED ACTIVITY; REFUSAL TO DRIVE CLAUSE; IF DRIVER GOES AHEAD AND DRIVES, THERE HAS BEEN NO REFUSAL TO DRIVE

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 Fourth Circuit agreed with the ARB that a STAA complainant is not protected under the "refusal to drive" provision of the STAA at section 31105(a)(1)(B), where the complainant actually drove the vehicle. In Calhoun , The court found nothing "arbitrary or capricious" about the ARB so finding, even where the Complainant drove "under protest."

[STAA Digest V B 2]
PROTECTED ACTIVITY; COMPLAINT CLAUSE; DRIVER INSPECTIONS UNDER 49 C.F.R. §§ 392.7 AND 396.13

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 court found that the Complainant could not satisfy the portion of the "complaint" clause that the complaint related to a violation of a commercial motor vehicle safety regulation, standard, or order, when he told a supervisor that he needed to manually inspect the equipment on his vehicle "for safety." The Complainant cited no specific regulation that the Respondent violated by not allowing him to touch his equipment, and the general regulations at 49 C.F.R. §§ 392.7 and 396.13 (2008), which essentially state that a commercial motor vehicle shall not be driven unless the driver is satisfied that the motor vehicle is in safe operating condition, did not suffice to protect the Complainant's position. The court wrote: "While it may have been reasonable for Calhoun to engage in some manual inspection of his vehicle's equipment, Calhoun's own lengthy inspection regimen has not been shown to be reasonably necessary to satisfy himself about the safety of his vehicle. Accordingly, Calhoun cannot use these regulations to demonstrate a reasonable belief that the company was engaging in a violation of a motor vehicle safety regulation.'" Slip op. at 19, quoting Dutkiewicz , 1997 DOL Ad. Rev. Bd. LEXIS 98, at *6.

[STAA Whistleblower Digest V B 2]
PROTECTED ACTIVITY; MECHANIC WHO REFUSED TO CLEAR VEHICLES FOR SERVICE IS NOT PROTECTED UNDER THE "REFUSAL TO DRIVE" CLAUSE; HOWEVER, THE SAME ACTIVITY MAY BE PROTECTED UNDER THE "MOTOR SAFETY REGULATION" CLAUSE

In Williams v. Capitol Entertainment Services, Inc. , ARB No. 05-137, ALJ No. 2005-STA-27 (ARB Dec. 31, 2007), the ALJ erred in concluding that the Complainant engaged in activity protected by 49 U.S.C.A. § 31105(a)(1)(B)(ii), because under that clause a complainant must show that he refused to operate a vehicle, and as a mechanic, the Complainant did not drive or operate any vehicles for the Respondent and therefore his complaints concerning the safety of school buses did not constitute a refusal to drive. The ALJ had characterized the protected activity as a refusal to clear vehicles for service. This was harmless error, however, because the Complainant made internal complaints to his manager concerning the safety of tires and an exhaust system. These complaints related to motor safety regulations regarding the safe operation of a school bus, which were protected activity under 49 U.S.C.A. § 31105(a)(1)(A).

[STAA Whistleblower Digest V B 2]
PROTECTED ACTIVITY UNDER SECTION 31105(a)(1)(B)(I); REFUSAL TO DRIVE REQUIRES PROOF OF ACTUAL VIOLATION; PREPONDERANCE OF THE EVIDENCE STANDARD

Section 31105(a)(1)(B)(i) prohibits an employer from retaliating because an employee refuses to drive when to do so would violate a commercial motor vehicle regulation. A refusal to drive under that subsection is protected only if the record establishes that the driving actually would have violated the motor vehicle regulation at issue. A good faith belief does not suffice. In the instant case, the Complainant failed to establish by a preponderance of evidence that driving would have actually resulted in a violation of the 70 hour/8-day driving rule where substantial evidence supported the ALJ's findings that driver's logs did not support the claim, that the Complainant's estimates and recollections were not reliable because his testimony was one year and nine months after the fact, there was conflicting testimony on key points, and different combinations of the evidence rendered different results on whether the rule would have been violated. Hilburn v. James Boone Trucking , ARB No. 04-104, ALJ No. 2003-STA-45 (ARB Aug. 30, 2005).

[STAA Whistleblower Digest V B 2]
PROTECTED ACTIVITY; WORK REFUSAL; ANALYSIS UNDER THE "ACTUAL VIOLATION" AND "REASONABLE APPREHENSION" SUBSECTIONS

The STAA protects two categories of work refusal, commonly referred to as the "actual violation" and "reasonable apprehension" subsections. While 49 U.S.C.A. §31105(a)(1)(B)(i) deals with conditions as they actually exist, 49 U.S.C.A. §31105(a)(1)(B)(ii) deals with conditions as a reasonable person would believe them to be. Whether a refusal to drive qualifies for STAA protection requires evaluation of the circumstances and the particular requirements of each of the provisions. The actual violation category may be applicable if the operation of the vehicle would have violated the DOT "fatigue rule" at 49 C.F.R. § 392.3 (2003). A complainant must prove that there would be an actual violation of the specific requirements of this rule; mere good-faith belief in a violation is insufficient. The reasonable apprehension category is applicable if the complainant has an objectively reasonable apprehension of serious injury to himself or the public because of the vehicle's unsafe condition, which may include a driver's physical condition, including fatigue. Eash v. Roadway Express, Inc. , ARB No. 04-036, ALJ No. 1998-STA-28 (ARB Sept. 30, 2005).

[STAA Digest V B 2 a i]
PROTECTED ACTIVITY; REFUSAL TO OPERATE MAY ENCOMPASS ACTUALLY OPERATING A VEHICLE IN A MANNER INTENDED TO MINIMIZE DANGER OF HARM OR VIOLATION OF LAW

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 trailers brakes had frozen due to frigid temperatures. The Complainant called road assist. While waiting for a repairman, the Complainants 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 ALJs 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 Complainants 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 Complainants 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 Complainants 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 ALJs 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 ALJs finding of protected activity and generally agree with his analysis, we do not agree with the ALJs 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 Klucks 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 employees 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 complainants 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 ALJs findingthat 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).

[STAA Digest V B 2 a i]
PROTECTED ACTIVITY; REFUSAL TO DRIVE BASED ON ILLNESS; COMPLAINANT MUST PROVE THAT AN ACTUAL VIOLATION WOULD HAVE OCCURRED

In Bates v. USF Reddaway, Inc. , ARB No. 07-086, ALJ No. 2005-STA-29 (ARB May 20, 2009), the ARB found that substantial evidence supported the ALJ's finding that the Complainant had not engaged in protected activity when he refused a driving assignment. On his previous run, the Complainant had arrived late, and explained that he had to stop several times to use the restroom and that he had been delayed at a state truck scales facility. When asked for his logbook, he declined to produce it on the grounds that it was incomplete. The Complainant returned home. A supervisor called for the Complainant, who returned the call after he awoke from a sleep. The supervisor asked about the logbook, and told the Complainant he was suspended until he turned it in. The Complainant hung up abruptly. When he returned to the terminal and turned in his logbook, the Complainant was informed that his usual run had been given to another driver, but was offered a different run. The Complainant indicated that he wanted to drive his usual run, and declined the other run. The ALJ found that it was only upon declining the alternative run for a third time that the Complainant stated that he was declining the run because he was sick. The Respondent's supervisors did not understand why the Complainant felt he was able to do his usual run, but was too sick to take the alternative run, and suspended the Complainant. The ALJ found that the supervisor's version of the events was more credible, and the ARB found that substantial evidence supported that finding. Later, the Respondent concluded that the Complainant had falsified his logbook because the state highway officials did not have a record of inspecting or detaining the Complainant. The Respondent discharged the Complainant on this basis. Later, it converted the discharge to a suspension because upon investigation it was difficult to substantiate some the facts concerning the stop at the state scales facility. The Complainant lost his bid run, but returned to work with the same seniority. Later, due to a business slowdown, the Complainant was changed to part-time status, and eventually was laid off.

On appeal, the ARB explained that the "fatigue rule" at 49 C.F.R. § 392.3 (2008),"plainly covers a driver whose driving ability or alertness is so impaired or who anticipates that his or her ability or alertness is so likely to become impaired that it would be unsafe to begin or continue driving." USDOL/OALJ Reporter at 9 (citations omitted). The ARB noted that in a refusal to drive case, a complainant must prove that an actual violation would have occurred: "A complainant must introduce sufficient evidence to demonstrate that his driving ability is or would be so impaired that actual unsafe operation of a motor vehicle would result." Id. (citations omitted).

In the instant case, the ARB found that substantial evidence supported the ALJ's conclusion that, although the Complainant had been sick, he did not establish "that his sickness impaired or was likely to impair his ability or alertness such that it would have been unsafe for him to drive the run when he refused to drive it." Id. at 9-10.

The ARB also found that substantial evidence supported the ALJ's alternative conclusion that the Complainant did not prove a causal connection between his alleged protected activity and the adverse actions because the Respondent had legitimate non-discriminatory reasons for suspending the Complainant, terminating his employment, and ultimately laying him off.

[STAA Digest V B 2 a i]
PROTECTED ACTIVITY; REFUSAL TO WORK FOR REASON NOT RELATED TO STAA; REFUSAL BASED ON ILLNESS ARTICULATED ONLY AFTER PREVIOUSLY HAVING BEEN DISCIPLINED FOR WORK REFUSAL

The Complainant did not engage in protected activity under the STAA where he refused a supervisor's order to move a trailer, not because he felt sick and could not drive safely, but because he believed that he was not getting paid to do that kind of work. Neither did the Complainant engage in protected activity the following day when, after he had previously been instructed to move a trailer and refused and disciplined for that refusal, on a subsequent request, he refused based on a claim of illness. Horne v. United Parcel Service, Inc. , ARB No. 08-007, ALJ No. 2007-STA-39 (ARB May 29, 2009).

[STAA Digest V B 2 a i]
PROTECTED ACTIVITY; FILING OF WORKERS' COMPENSATION CLAIM

In Bethea v. Wallace Trucking Co. , ARB No. 07-057, ALJ No. 2006-STA-23 (ARB Dec. 31, 2007), the ARB affirmed the ALJ's finding that the filing of a workers' compensation claim was not protected activity under the whistleblower provision of the STAA because it is not a complaint related to violation of a motor vehicle safety regulation.

V B 2 a i Refusal to drive because of fatigue

In Price v. E&M Express Company, Inc., 87-STA-4 (Sec'y Nov. 23, 1987), the Secretary accepted the ALJ's finding that a complainant who refused to drive a truck because of fatigue would be engaged in protected activity. Nonetheless the ALJ dismissed the complaint since he found the Complainant not credible in his description of events preceding his termination.

[STAA Digest V B 2 a i]
REFUSAL TO DRIVE NOT PROTECTED ACTIVITY IF FEIGNED

In Johnson v. Roadway Express, Inc. , ARB No. 99-111, ALJ No. 1999-STA-5 (ARB Mar. 29, 2000), the ARB held that "[w]here a driver's claim of illness is not legitimate, a refusal to drive is not protected activity." In the instant case, however, Respondent's attempt to establish through the testimony of a supervisor that Complainant's illness was feigned, or was not serious enough to preclude driving a commercial motor vehicle, was not credited by the ALJ, who instead credited the testimony of Complainant and his then fiancee.

[STAA Digest V B 2 a i]
REFUSAL TO DRIVE; PER SE VIOLATION TO DISCIPLINE IF DRIVER TOO ILL

In Johnson v. Roadway Express, Inc. , ARB No. 99-111, ALJ No. 1999-STA-5 (ARB Mar. 29, 2000), Respondent contended that it had not terminated Complainant's employment because he was ill, but because his frequent absences violated Respondent an the Union's mutually agreed upon absenteeism policy. The ARB rejected this argument, holding that termination of Complainant's employment because he refused to drive when too ill to do so safely amounts to a per se violation of the STAA's employee protection provision. See Ass't Sec'y & Ciotti v. Sysco Foods Co. of Philadelphia , ARB No. 98-103, ALJ No. 1997-STA-30 , slip op.at 8 (ARB July 8, 1998).

[STAA Digest V B 2 a i]
REFUSAL TO DRIVE CLAUSE; ILLNESS

In Scott v. Roadway Express, Inc. , ARB No. 99-013, ALJ No. 1998-STA-8 (ARB July 28, 1999), the ARB agreed with the ALJ's analysis under the "refusal to drive" clause of the STAA whistleblower provision, 49 U.S.C. § 31105(a)(1)(B), to the effect that the "'STAA does not preclude an employer from establishing reasonable methods or mechanisms for assuring that a claimed illness is legitimate and serious enough to warrant a protected refusal to drive.'" Id . @ 13, quoting Scott v. Roadway Express, Inc. , 1998-STA-8 @ 26 n.23, slip op. at 29 n.23 (ALJ Nov. 6, 1998) . The ARB also agreed, however, with the ALJ's conclusion that Complainant's refusals to drive likely would have been found valid under such a review mechanism, because Complainant produced physician statements excusing him from work due to pain and illness.

The ARB disagreed with the ALJ's conclusion that Respondent violated only the "actual violation" category of the refusal to drive clause, because "'[a] refusal to drive that is based on an employee's concern that his or her ability or alertness is materially impaired, conditions that are addressed by the 'fatigue rule,' may qualify for protection under either the 'reasonable apprehension' or the 'actual violation' provision of the STAA.'" Id . @ 13, quoting Ass't Sec'y & Freeze v. Consolidated Freightways , ARB No. 99-030, ALJ No. 1998-STA-26, slip op. at 7 (ARB Apr. 22, 1999), and cases there cited. The ARB nonetheless concluded that it need not determine whether there also was a violation of the "reasonable apprehension" category because it would not alter the remedies to which Complainant was entitled.

[STAA Digest V B 2 a i]
REFUSAL TO DRIVE BECAUSE OF ILLNESS IS PROTECTED ACTIVITY ONLY IF THE ILLNESS IMPAIRS THE DRIVER'S ABILITY TO DRIVE SAFELY

A refusal to drive because of illness is not necessarily protected activity under STAA; rather, to be protected, a refusal to drive must be based on an illness that impairs the driver's ability to drive safely. See 49 C.F.R. §392.3 (1997). An employer may take action against employees who feign illness, and the STAA does not prohibit an employer from establishing reasonable methods or mechanisms for assuring that a claimed illness is legitimate and serious enough to warrant a protected refusal to drive. Ass't Sec'y & Ciotti v. Sysco Foods Co. of Philadelphia , 97-STA-30 @ 7-8 and nn.7-8 (ARB July 8, 1998) (in instant case, however, there was substantial evidence that Complainant's illness was not fabricated and that Respondent had reason to know that; application of absenteeism policy to Complainant under circumstances was violation of STAA's antiretaliation provision).

PROTECTED ACTIVITY; REFUSAL TO DRIVE AFTER ALTERCATION
[STAA Digest V B 2 a]

In Logan v. United Parcel Service , 96-STA-2 (ARB Dec. 19, 1996), Complainant asked to be relieved of further driving after an altercation with a manager regarding provision of Complainant with uniform pants. The Board agreed with the ALJ that this was protected activity because Complainant asked to be relieved from driving because he was clearly too distressed to drive and Respondent was aware of it. See 49 U.S.C. § 31105(a)(1)(B)(i). The Board noted a distinction from a section 31105(a)(1)(B)(ii) refusal, which has a "reasonableness" component.

WORK REFUSAL; EMOTIONAL STATE AFTER ADMONISHMENT BY SUPERVISOR
[STAA Digest V B 2 a i]

In Palinkas v. United Parcel Service , 95- STA-30 (Sec'y Mar. 7, 1996), the Secretary accepted the ALJ's recommendation that a work refusal was not protected under the facts of the case. Although the Complainant alleged that he was very upset and could not drive because of his emotional state after being admonished by a supervisor, the ALJ noted that the Complainant had driven home in his girlfriend's car, and that the Complainant had not taken medication or consulted a physician. The ALJ concluded that the Complainant was simply angry because of the rebuke, and decided that he was not going to complete his run. Palinkas v. United Parcel Service , 95-STA-30 (ALJ Dec. 13, 1995).

PROTECTED ACTIVITY; WORK REFUSAL BASED ON POSSIBLE IMPAIRMENT
[STAA Digest V B 2 a i]

In Brown v. Wilson Trucking Corp. , 94-STA-54 (Sec'y Jan. 25, 1996), the ALJ erred in his narrow interpretation of the scope of the employee protection provision of the STAA. The ALJ had concluded that refusal to drive is protected only where it arises out of concern for "truck safety defects, ... driving ... in violation of a federal rule,[or] ... the hours of the driver and the safety of the vehicle and its contents." Slip op. At 3- 4, quoting ALJ's R.D. & O at 16. Because the Complainant's work refusal related to pumping a hazardous chemical after the drum was removed from the truck, the ALJ concluded that there was no protected activity under the STAA.

The Secretary noted that he has held, and the courts agreed, that the STAA protects an employee who refuses to drive when he or she believes, in good faith, that he or she is too ill or fatigued to operate a truck safely. In Brown , the Complainant's allegation was that his lack of training in pumping a hazardous chemical out of the drum had resulted in a spill and that exposure to the chemical had impaired his ability to drive; the Secretary indicated that if the Complainant was correct that this sequence of events was likely to recur, an STAA complaint may be cognizable. There was much countervailing evidence, however, and the Secretary remanded the case for further fact finding.

V B 2 a 1 STAA work refusal based on illness or physical condition

An employee's refusal to drive based on illness or physical condition may constitute protected conduct under both the "when" clause and the "because" clause of section 2305(b). Self v. Carolina Freight Carriers Corp., 89-STA-9 (Sec'y Jan. 12, 1990), slip op. at 9; see Mace v. NA Delivery Systems, Inc., 91-STA-10 (Sec'y Jan. 27, 1992), slip op. at 7-8.

Smith v. Specialized Transportation Services, 91- STA-22 (Sec'y Apr. 20, 1992).

V B 2 a ii Expert opinion evidence; STAA work refusal based on physical inability to drive

A complainant is not precluded from prevailing on a claim of physical inability to drive safely where she does not submit expert opinion evidence. Smith v. Specialized Transportation Services, 91-STA-22 (Sec'y Apr. 20, 1992) (the Secretary, however, found that considering the evidence as a whole, complainant had failed to carry her burden).

V B 2 a iii Refusal to work based on illness

A refusal to drive because of illness may constitute protected activity under either the "when" clause or the "because" clause of 49 U.S.C. § 2305(b). Smith v. Specialized Transportation Services, 91-STA-22 (Sec'y Apr. 30, 1992). Lorenz v. H & J Manufacturing Services, 92-STA-26 (ALJ Dec. 17, 1992), aff'd (Sec'y Apr. 7, 1993). Even if the complainant was ill enough to establish that his work refusal fits generally under the protection under the Act, the Complainant still has the burden of explaining to his employer that he is ill and that because of this condition he cannot drive without creating a danger to himself or to the public at large. It is not enough simply to state that he is not feeling well.

In Lorenz, the Complainant contended that his refusal to drive while sick would violate DOT regulation section 392.3, which states:

No driver shall operate a motor vehicle, and a motor vehicle carrier shall not require or permit a driver to operate a motor vehicle, while the driver's ability or alertness is so impaired, through fatigue, illness or any other cause, as to make it unsafe for him to begin or continue to operate the motor vehicle.

Under the "when" cause, the Complainant had the burden of establishing that his illness so impaired his ability to drive as to make vehicle operation unsafe. Under the "because" clause, his burden was to establish that his illness was of a nature that a reasonable person would determine that there was a bona fide danger to his personal safety or to the public if he had driven.

The ALJ found that the Complainant had acted out of pique rather than illness in refusing to accept the driving assignment.

Furthermore, the ALJ found that the Complainant did not establish communication of a safety related reason for the work refusal when he simply asserted "I'm sick. I'm going home," where in view of the events that had just taken place it would have been reasonable for supervisor to interpret that this was nothing more than a statement made in the heat of anger. The ALJ compared Smith, in which the Secretary concluded that the Complainant's statement that she was not well and unable to work could reasonably have been interpreted as backlash from an earlier argument.

[STAA Whistleblower Digest V B 2 a iii]
PROTECTED ACTIVITY; REASONABLE APPREHENSION; PRE-TRIP INSPECTION BASED ON DRIVER'S GENERALIZED DESIRE TO SATISFY HIMSELF THAT THE VEHICLE IS SAFE

In Calhoun v. United Parcel Service , 2002-STA-31 (ALJ June 2, 2004), the Complainant was disciplined for making pre-trip inspections that were more extensive than the Respondent's standard procedure. Although the ALJ found that such inspections were protected activity under the "refusal to drive" provision at 49 U.S.C. § 31105(a)(1)(B) and the "actual violations" provision at 49 U.S.C. § 31105(a)(1)(B)(i), he found that they were not protected activity under the "reasonable apprehension of serious injury" provision at 49 U.S.C. § 31105(a)(1)(B)(ii). The ALJ found that the Complainant had not shown that the assigned vehicles were unsafe, and that his inspections were based only on his generalized desire to satisfy himself that his vehicles were safe, and not any mechanical problems, physical conditions or weather conditions which, at the time he refused to drive, would have led a reasonable person to fear for his or her safety or that of others.

[STAA Whistleblower Digest V B 2 a iii]
REASONABLE APPREHENSION CLAUSE; CORRECTION OF UNSAFE CONDITION IN NOTIFICATION OF ILLNESS CASE

In Wrobel v. Roadway Express, Inc. , ARB No. 01 091, ALJ No. 2000 STA 48 (ARB July 31, 2003), the ARB clarified how the "correction of the unsafe condition" requirement of the reasonable apprehension provision of section 31105(a)(1)(B)(ii) applies in a case involving refusal to drive based on an assertion of illness. The Board wrote: "[t]he reasonable apprehension provision expressly requires that the employee had >sought from the employer, and been unable to obtain correction of the unsafe condition.' 49 U.S.C.A. § 31105(a)(2). Thus, in order to show that he had sought and been unable to obtain correction of the unsafe condition, Wrobel would have had to provide Roadway with adequate information that it was unsafe for him to drive. The mere assertion that he was >sick,' particularly under the circumstances presented [evidence casting significant doubt on the credibility of the assertion that he was sick, was inadequate to do so." Slip op. at n.4.

[STAA Whistleblower Digest V B 2 a iii]
PROTECTED ACTIVITY; REASONABLE APPREHENSION CLAUSE; ASKING FOR ANOTHER TRUCK RATHER THAN REPAIR OF ASSIGNED TRUCK IS SUFFICIENT FOR COVERAGE UNDER 31105(a)(2)

In Petit v. American Concrete Products, Inc. , 1999 STA 47 (ALJ Apr. 27, 2000), the ALJ found that because the Complainant had merely asked for another truck to drive, rather than seeking repair of the assigned truck, he was not protected by STAA, section 31105(a)(2) . That section provides that (when the basis of the employee protection is a refusal to drive due to reasonable apprehension of serious injury, "the employee must have sought from the employer, and been unable to obtain, correction of the unsafe condition." 49 U.S.C. § 31105(a)(2). On review, in Pettit v. American Concrete Products, Inc. , ARB No. 00 053, ALJ No. 1999 STA 47 (ARB Aug. 27, 2002), however, the ARB held that this ruling was not consistent with the body of relevant case law, citing, among other decisions, Jackson v. Protein Express , ARB No. 96 194, ALJ No. 1995 STA 38, slip op. at 2 4 (ARB Jan. 9, 1997), in which complainant's request for repair of truck or another truck to drive met his obligation to seek correction of unsafe condition.

V B 2 a ii Complainant's lack of legroom does not equate with a reasonable fear of an unsafe condition

In Ass't Sec'y & Beard v. Apar Brokerage, 94- STA-39 (Sec'y May 3, 1995), the Complainant refused to drive a truck based on his perception that the cab lacked sufficient legroom to be operated safely. After considering all the evidence, the ALJ concluded that although the truck was uncomfortable for the Complainant, the Complainant did not reasonably fear an unsafe condition, and therefore the refusal to drive was not protected. The Secretary accepted the ALJ's recommendation. See 49 U.S.C. § 31105(a)(1)(B)(ii); Yellow Freight Sys., Inc. v. Reich, 38 F.3d 76, 82 (2d Cir. 1994).

[STAA DIGEST V B 2 a iv]
PROTECTED ACTIVITY; REASONABLE APPREHENSION CLAUSE; SUMMARY DECISION WHERE COMPLAINANT REFUSED TO DRIVE WITHOUT EVEN INSPECTING OR TESTING THE TRUCK DESPITE BEING TOLD THAT THE TRUCK HAD BEEN TESTED AND FOUND TO BE SAFE

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).

[STAA DIGEST V B 2 a iv]
PROTECTED ACTIVITY; REFUSAL TO DRIVE; FATIGUE RULE

In Melton v. Yellow Transportation, Inc. , ARB No. 06-052, ALJ No. 2005-STA-2 (ARB Sept. 30, 2008), the ARB found that the Complainant engaged in protected activity under 49 U.S.C.A. § 31105(a)(1)(B)(ii), based on fatigue where, expecting a 6:00 am departure, the Complainant was put on an indeterminate hold at 12:12 pm, was entitled to a two hour notice, and would have had a nine hour drive once dispatched with the load. The ARB found that substantial evidence supported the ALJ's conclusion that the Complainant had a serious apprehension of serious injury due anticipated fatigue. Prior to making this finding, the ARB reviewed the law regarding the "fatigue rule":

   A complainant's refusal to drive may be protected activity under subsection (1)(B)(i) if his operation of a motor vehicle would have violated a Department of Transportation (DOT) regulation that states:

No driver shall operate a commercial motor vehicle, and a motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the driver's ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness or any other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle.

49 C.F.R. § 392.3 (2003). This regulation, known colloquially as the "fatigue rule," plainly covers a driver who anticipates that his or her ability or alertness is so likely to become impaired that it would be unsafe to begin or continue driving. Eash , slip op. at 6; Stauffer v. Wal-Mart Stores, Inc. , ARB No. 00-062, ALJ No. 1999-STA-021, slip op. at 5 (ARB July 31, 2001).

    However, a complainant must prove that operation of the vehicle would in fact violate the specific requirements of the fatigue rule at the time he refused to drive - a "mere good-faith belief in a violation does not suffice." Eash , slip op. at 6; Yellow Freight Sys. v. Martin , 983 F.2d 1195, 1199 (2d Cir. 1993); Cortes v. Lucky Stores, Inc. , ARB No. 98-019, ALJ No. 1996-STA-030, slip op. at 4 (ARB Feb. 27, 1998). Thus, a complainant must introduce sufficient evidence to demonstrate that his driving ability is or would be so impaired that actual unsafe operation of a motor vehicle would result. See Wrobel v. Roadway Express, Inc. , ARB No. 01-091, ALJ No. 2000-STA-048, slip op. at 6 (ARB July 31, 2003) (complainant who claimed sickness failed to produce sufficient evidence to demonstrate an actual violation of the fatigue rule).

    A complainant's refusal to drive may also be protected under subsection (1)(B)(ii) if he has "a reasonable apprehension of serious injury to [himself] or the public because of the vehicle's unsafe condition." This clause covers more than just mechanical defects of a vehicle - it is also intended to ensure "that employees are not forced to commit . . . unsafe acts." Garcia v. AAA Cooper Transp. , ARB No. 98-162, ALJ No. 1998-STA-023, slip op. at 4 (ARB Dec. 3, 1998). Thus, a driver's physical condition, including fatigue, could cause him to have a reasonable apprehension of serious injury to himself or the public if he drove in that condition. Somerson v. Yellow Freight Sys., Inc. , ARB Nos. 99-005, -036, ALJ Nos. 1998-STA-009, -11, slip op. at 14 (ARB Feb. 18, 1998). The employee's refusal to drive must be based on an objectively reasonable belief that operation of the motor vehicle would pose a risk of serious injury to the employee or the public. Jackson v. Protein Express , ARB No. 96-194, ALJ No. 1995-STA-038, slip op. at 3 (ARB Jan. 9, 1997).

USDOL/OALJ Reporter at 6.

V B 2 a iv DOT regulation

One motor vehicle safety standard covered by STAA section 2305(b) is the driver fatigue rule. DOT regulation 49 C.F.R. § 392.3. Yellow Freight Systems, Inc. v. Reich, No. 93-1205 (4th Cir. Oct. 29, 1993) (available at 1993 U.S. App. LEXIS 28378).

[STAA DIGEST V B 2 a iv]
PROTECTED ACTIVITY; FATIGUE; COMPLAINANT'S FAILURE TO GET ENOUGH REST TO DRIVE DOES NOT, PER SE, REMOVE STAA PROTECTION

In Eash v. Roadway Express, Inc. , ARB Nos. 02-008 and 02-064, ALJ No. 2000-STA-47 (ARB Mar. 13, 2006), PDF the ARB in an earlier decision had, inter alia , affirmed the ALJ's grant of summary decision to the Respondent on the ground that, under Porter v. Greyhound Bus Lines , ARB No. 98-116, ALJ No. 1996-STA-23 (ARB June 12, 1998), the STAA does not protect an employee who, through no fault of the employer, makes himself unavailable for work (in this instance by not getting enough rest to be ready to drive). Both parties appealed to the Sixth Circuit. At the motion of the Solicitor of Labor, who was representing the ARB, the Sixth Circuit remanded on this issue (the Sixth Circuit affirmed the ARB on another issue). The remand was based on the circumstance that in another case involving the same parties and similar facts, the ARB had reversed the ALJ. In the meantime, the ARB issued another decision involving the same parties in which the ARB held that the ALJ in that case erred as a matter of law when he concluded that the Complainant was not entitled to protection under the STAA because he had deliberately made himself available for work, finding in that case that the ALJ had misapplied Porter . Thus, in the instant case on remand from the Sixth Circuit, the ARB vacated that portion of the decision that conflicted with its later ruling and remanded the case to the ALJ for further proceedings.

[STAA Whistleblower Digest V B 2 a iv]
PROTECTED ACTIVITY; FATIGUE BREAKS DURING RUN ARE NOT PROTECTED ACTIVITY WHERE THE COMPLAINANT REPEATEDLY SHOWS UP FOR WORK INADEQUATELY RESTED

In Blackann v. Roadway Express, Inc. , No. 04-4026 (6th Cir. Dec. 15, 2005) (unpublished) (available at 2005 WL 3448280) (case below ARB No. 02-115, ALJ No. 2000-STA-38), the Sixth Circuit affirmed the ARB's holding that the Respondent discharged the Complainant due to his repeated reporting for duty when he was simply too tired to perform that duty, and not because of taking STAA-protected fatigue breaks. The court stated that "the purposes of the STAA would not be well served by permitting an employee to chronically report for duty aware of the strong probability that he would not be able to finish a driving shift in a timely fashion, and then claim STAA protection when his employer takes adverse action." Slip op. at 6.

[Editor's note: The Sixth Circuit's decision is unclear as to the precise basis on which the ARB is being affirmed -- that the fatigue breaks were not protected activity -- or that the Complainant failed to establish a causal link between protected activity and his discharge -- or, as a concurring member of the Sixth Circuit panel found, because the Employer articulated a legitimate non-discriminatory reason for the discharge which the Complainant failed to show was pretext.]

[STAA Whistleblower Digest V B 2 a iv]
PROTECTED ACTIVITY; WORK REFUSAL; ACTUAL VIOLATION; QUALITY OF SLEEP

The ARB affirmed the ALJ's finding that the Complainant had failed to establish that he was so tired that driving would actually violate the DOT fatigue rule where the Complainant testified that he needed six hours of sleep in a 24 hour period to function adequately, and the evidence showed that he had accumulated more than six hours of sleep in the period before the two dispatches at issue. The ALJ had considered the Complainant's evidence of scientific studies about the quality of fragmented and daytime sleep, the effect of environmental conditions, and being awakened during a principal sleep period, but nonetheless found that the Complainant had not established that there would have been an actual violation of the DOT rule. Eash v. Roadway Express, Inc. , ARB No. 04-036, ALJ No. 1998-STA-28 (ARB Sept. 30, 2005).

[STAA Whistleblower Digest V B 2 a iv]
PROTECTED ACTIVITY; WORK REFUSAL; DELIBERATE FAILURE TO GET ENOUGH REST; RESPONDENT'S COMPLIANCE WITH RULES

The ALJ construed Ass't Sec'y & Porter v. Greyhound Bus Lines , ARB No. 98-116, ALJ No. 1996-STA-23 (ARB June 12, 1998), as compelling a finding that the Complainant was not engaged in protected activity by refusing a dispatch where he deliberately made himself unavailable for work by not taking advantage of time off to get enough rest. The ARB found that the ruling in Porter had created some confusion -- that it did not create a per se exception to the fatigue rule -- rather evidence that the complainant made himself unavailable for work is only one factor to consider. Similarly, a finding that the respondent's operating rules and procedures comply with hours of service regulations or that the respondent did not contribute to the complainant's fatigue do not necessarily remove STAA protection. Eash v. Roadway Express, Inc. , ARB No. 04-036, ALJ No. 1998-STA-28 (ARB Sept. 30, 2005).

[STAA Whistleblower Digest V B 2 a iv]
WORK REFUSAL; FAILURE OF COMPLAINANT TO GET SUFFICIENT REST; WHETHER THAT FAILURE WAS DELIBERATE IS A MATERIAL ISSUE OF FACT

In Eash v. Roadway Express, Inc. , ARB No. 00 061, ALJ No. 1998 STA 28 (ARB Dec. 31, 2002), the ALJ had granted summary judgment on the ground that there was no genuine issue of material fact as to whether Complainant had made himself unavailable for work, accepting Respondent's contention that Ass't Sec'y of Labor and Porter v. Greyhound Bus Lines , ARB No. 98 116, ALJ No. 96 STA 23 (ARB June 12, 1998), holds that "[t]he Act does not protect an employee who through no fault of the employer, has made himself unavailable for work."

The ARB, however, essentially found that Porter was based on a driver "deliberatively" making himself unavailable for work. In the instant case, although Complainant had not gotten the necessary rest to be ready when called for duty, the ARB concluded that a material issue of fact remained regarding the circumstances surrounding Complainant's fatigue.

[STAA Digest V B 2 a iv]
REFUSAL TO WORK BECAUSE OF FATIGUE

In Somerson v. Yellow Freight System, Inc. , 1998-STA-9 and 11 (ALJ Feb. 18, 1999), the ARB reviewed the law relating to refusal to work because of fatigue. The following is an excerpt from that discussion:

A driver's refusal to work because of fatigue may be determined to be protected activity either under STAA Section 31105(a)(1)(B)(i) (operation violates a federal regulation, e.g. the fatigue regulation at 49 C.F.R. §392.3) or Section 31105(a)(1)(B)(ii) (employee has a reasonable apprehension of serious injury because of the unsafe condition of a vehicle). In order to prove a fatigue related claim under subsection (i), a complainant must prove that operation of the vehicle would in fact violate the specific requirements of the fatigue rule. As we held in Cortes v. Lucky Stores, Inc. , slip op. at 4 ( quoting Yellow Freight Systems v. Martin , 983 F.2d 1195, 1199 (2d Cir. 1993)):

To establish a violation of the provision at Subsection (B)(i) of the STAA, a complainant "must show that the operation [of a motor vehicle] would have been a genuine violation of a federal safety regulation at the time he refused to drive -- a mere good faith belief in a violation does not suffice."

A violation of this provision is established where it is proven that the driver's "ability or alertness was so impaired as to make vehicle operation unsafe." Smith v. Specialized Transportation Services , Case No. 91-STA-22, Sec. Final Dec and Ord., Apr. 30, 1992, slip op. at 6.

The protections under subsection (ii), which are applicable whenever there is a serious safety issue, are considerably broader and are applicable even when the DOT safety regulations do not directly and specifically address the safety concern. However, in order to prove a fatigue related claim under subsection (ii), a complainant must prove that "a reasonable person in the same situation would conclude that there was a reasonable apprehension of serious injury if he drove." Byrd v. Consolidated Motor Freight , ARB Case No. 98-064, ALJ Case. No. 97-STA-9, ARB Final Dec. and Ord., May 5, 1998, appeal filed , May 27, 1998 (11th Cir.).

Under this standard, a driver's claim of fatigue, standing in isolation and without context, is insufficient for protection under the STAA to attach. Instead, the Secretary, and now the Board, examines the facts surrounding each incident to determine if a reasonable person in the circumstances would have been justified in refusing an assignment due to fatigue. In practice, most drivers have found little difficulty meeting this standard when the circumstances of the driver's refusal to work point clearly to the immediate cause of the driver's fatigue concerns.

Somerson , 1998-STA-9 @ 13-14 (footnotes omitted).

[STAA Whistleblower Digest V B 2 a iv]
DRIVER FATIGUE; PRACTICE OF REAWAKENING DRIVERS TO PERFORM BRIEF TASKS; DOL'S CONCERN IS WHETHER SPECIFIC FACTS EVINCE PROTECTED ACTIVITY

In Stauffer v. Wal-Mart Stores, Inc. , ARB No. 00-062, ALJ No. 1999-STA-21 (ARB July 31, 2001), the record was replete with evidence and argument about the issue of the human body's daily cycle ("circadian rhythm") and its relationship to a driver's ability to be alert and drive safely. Complainant argued that Respondent's "Custom Night Receiving System" which sometimes required drivers to be awakened from their sleep to perform brief tasks, such as shuttling trailers, is illegal as implemented because it contributes to driver fatigue.

The ARB recognized the importance of the issue of driver fatigue, but held that

To the extent that Stauffer is arguing that a facially lawful scheduling policy does not adequately protect drivers and the public, he effectively is calling for a change in current DOT safety regulations a remedy beyond the Labor Department's authority under the STAA. As we have noted before, this type of policy argument must be addressed to the DOT, which (unlike the Department of Labor) has both legal authority and technical expertise in the field.
This is not to say, however, that the Department of Labor has no role to play in driver safety complaints. Our concern, however, is comparatively narrow. Rather than addressing the global concern that Stauffer raises ( i.e. , whether it generally is an unsafe practice to require drivers to operate their vehicles after being awakened from the normal sleep cycle), our concern is whether a specific refusal to drive is protected activity under the STAA under the facts presented.

Slip op. at 7-8 (citation omitted). In Complainant's case, the record failed to establish a case under either the "actual or anticipated fatigue causing impairment" analysis (§ 31105(a)(1)(B)(i)) or "reasonable apprehension of serious injury related to fatigue" analysis (§ 31105(a)(1)(B)(ii)).

The ALJ had found Complainant's testimony less than credible because it was argumentative, contradictory and unclear -- and the ARB declined to disturb the ALJ's credibility finding. The ARB also noted that Complainant's claim of impairment due to fatigue was undercut by the fact that he parked the trailer and then drove five miles to another store to spend the night after refusing the assignment to shuttle trailers. Moreover, the ARB found the testimony of Complainant's expert in sleep disorders not to be persuasive because he had not examined or even met Complainant prior to the hearing, because it was equivocal, and because he did not clearly identify the reasoning or methodology underlying his conclusions. Finally, the ARB observed in regard to the reasonable apprehensive issue that neither Complainant nor other drivers who testified could point to any specific instances of fatigue causing a serious injury while shuttling vehicles while working for Respondent.

[STAA Digest V B 2 a iv]
ON-CALL SYSTEM THAT ALLEGEDLY IS INHERENTLY PRONE TO CREATE FATIGUE PROBLEMS

In Somerson v. Yellow Freight System, Inc. , 1998-STA-9 and 11 (ALJ Feb. 18, 1999), one Complainant appeared to argue that Respondent's on-call system, with its uncertain work schedule, is inherently prone to create a "chronic fatigue" problem for casual drivers (workers who may be called for driving assignments after the list of regular bid drivers and extra-board drivers has been exhausted) and therefore results in intense (and unlawful) pressure on drivers to work while dangerously tired.

The Board found that there was no evidence on the record that Respondent's implementation of its dispatch system for casual drivers violated any specific DOT regulation. The Board wrote:

To the extent that Somerson is arguing generally that Yellow Freight's casual driver dispatch system -- which complies with DOT Hours of Work regulations -- nonetheless is deficient because it inevitably results in a violation of a second DOT regulation -- the fatigue rule -- we believe that his challenge is addressed to the wrong forum. Although we do not here decide the question whether a dispatch system that meets DOT standards might nonetheless raise a viable whistleblower complaint as applied in a specific individual case, it is beyond our authority under the STAA to address the kind of wholesale challenge to a facially-lawful dispatch system urged upon us by Somerson. In essence, by raising a general challenge to the dispatch system as creating a problem with chronic driver fatigue, Somerson is arguing that the DOT Hours of Service regulation needs to be modified to insure that drivers have predictable rest schedules. We express no opinion on the merits of Somerson's argument, but simply note that this Board has neither the authority nor the expertise to address this issue, which is entrusted by statute to the Department of Transportation.

Somerson , 1998-STA-9 @ 16-17.

[STAA Digest V B 2 a iv]
"ANTICIPATORY FATIGUE"

In Byrd v. Consolidated Motor Freight , 97-STA-9 (ARB May 5, 1998), Complainant refused to take a sleeper run because he believed that he would become too fatigued to drive safely; at that time, however, he was well rested and ready to drive other runs; he refused simply because he believed he would not get enough rest in the cab. The ARB found that Complainant, who was well rested, was not reasonably apprehensive about public safety, citing evidence of record to the effect that he could have stopped the truck and rested without repercussion. The ARB cited Brandt v. United Parcel Service, 95-STA-26 (Sec'y Oct. 26, 1995), for the standard for evaluating a claim of anticipatory fatigue.

[STAA Digest V B 2 a iv]
FATIGUE; EMPLOYEE HAD ADEQUATE TIME FOR REST

In Ass't Sec'y & Porter v. Greyhound Bus Lines , 96-STA-23 (ARB June 12, 1998), the ARB deferred to an arbitration ruling that Respondent did not violate the STAA whistleblower provision when it discharged Complainant for refusing to work. The arbitrator had found that Complainant had adequate time (three days) to be rested and available for work. The ARB agreed with the ALJ that "the arbitration decision dealt adequately with the factual issues in the case and reached an outcome that was not repugnant to the purpose of the STAA." Id . @ 2. The ARB stated that

Simply claiming that he was "sleepy" when called by Greyhound ... is not enough to show that Complainant reasonably believed he was too fatigued to take the assignment. It is also not sufficient to show that an actual violation of the fatigue rule would have occurred if Complainant had accepted the assignment. 49 U.S.C.A. §31105(a)(1)(B)(i). ... We agree with the ALJ that the STAA does not protect an employee who, through no fault of the employer, has made himself unavailable for work.

Id . @ 3.

[STAA Digest V B 2 a iv]
REFUSAL TO DRIVE BASED ON FATIGUE; FEDERAL SAFETY REGULATION CLAUSE

In Cortes v. Lucky Stores, Inc. , 96-STA-30 (ARB Feb. 27, 1998), Complainant failed to establish that his discharge violated STAA, 49 U.S.C. § 31105(a)(1)(B)(i), based on a refusal to drive because of fatigue, see 49 C.F.R. § 392.3 (1996), where there were 15 to 16 hours between the dispatch and the report time. A subsection (B)(i) complaint must be based on a genuine violation, not a mere good faith belief in a violation. See Brandt v. United Parcel Service , 95-STA-26 (Sec'y Oct. 26, 1995).

[STAA Digest V B 2 a iv]
REFUSAL TO DRIVE BASED ON FATIGUE; REASONABLE APPREHENSION CLAUSE

In Cortes v. Lucky Stores, Inc. , 96-STA-30 (ARB Feb. 27, 1998), Complainant failed to establish that his discharge violated STAA, 49 U.S.C. § 31105(a)(1)(B)(ii), when he refused to drive based on fatigue. a subsection (B)(ii) complaint focuses on whether a reasonable person in the same situation would conclude that there was a reasonable apprehension of serious injury. The ARB agreed with the ALJ's finding that Complainant's testimony that he was falling asleep during his earlier shift was not credible. Thus, where Complainant relied on only self-serving testimony that he needed two days off to rest after a regular work week, and gave no reason why he could not rest and sleep during the at least 14 hours he had to rest before reporting to work, the ARB concluded that a reasonable person in the same circumstance as Complainant would not conclude that his ability or alertness would be impaired such that a violation of the fatigue rule would have occurred.

V B 2 a iv Complaints about long hours and resulting fatigue

Complaints to managers about long hours and resulting fatigue are sufficient to establish a prima facie case of protected activity pursuant to STAA section 405(b). Ass't Sec'y & Brown v. Besco Steel Supply, 93- STA-30 (Sec'y Jan. 24, 1995).

V B 2 a iv Work refusal based on fatigue

A complainant engages in protected activity when he or she refuses to take an assignment on the belief that he or she was too fatigued to make the run safely. 49 C.F.R. § 392.3. Polger v. Florida Stage Lines, 94-STA-46 (Sec'y Apr. 18, 1995).

V B 2 a iv Sleeping when fatigued

Where the complainant stopped driving and rested due to "driver fatigue," and that he was fatigued was supported by the fact that he had been awake for 19.5 hours awaiting dispatch and driving, the complainant engaged in protected activity under STAA section 405(b) when he ceased driving in order to sleep. Hornbuckle v. Yellow Freight System, Inc., 92-STA-9 (Sec'y Dec. 23, 1992).

V. B. 2. a. iv. Fatigue; physical condition

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.

V B 2 a iv STAA; Protected activity; fatigue

A complainant's refusal to drive based on an assertion of fatigue did not constitute protected activity under STAA, 49 U.S.C. app. § 2303, where the complainant had not physically or mentally exerted himself during the 19 hours preceding his call by the dispatcher. The Administrative Law Judge distinguished Gaibis v. Werner Continental, 565 F. Supp. 1538 (W.D. Pa. 1983), in which the court found that the employer's dispatch policy which did not permit drivers to "book-off" or refuse dispatch when fatigued, violated 49 C.F.R. § 392.3 and 49 U.S.C. app. § 2305, on the ground that in the case sub judice the employer had complied with regulatory and union contract provisions relating to hours off duty. The Administrative Law Judge stated that "the employer's compliance with those provisions is meaningful since it rules out fatigue on a work- related basis and absent awareness of significant mental or physical exertion on some other basis, a dispatcher might reasonably assume that a driver is fully able to drive safely." Torbet v. Delta/McLean Trucking Co., 86-STA-12 (ALJ Mar. 26, 1991), aff'd mem., 86-STA-12 (Sec'y May 24, 1991).

V B 2 a iv Declining to work or continue driving due to fatigue

Smith v. Yellow Freight System, Inc., 91-STA-45 (Sec'y Mar. 10, 1993), slip op. at 13.

V. B. 2. a. iv. Fatigue; physical condition

Violations of the "because clause" involve more than problems with the mechanical parts of a motor vehicle. Forcing an ill or fatigued driver to drive may constitute a violation. Under the "because clause," it is necessary to ascertain whether the complainant's refusal to drive because of fatigue was reasonable under the circumstances.

When a driver had more than 80 on-duty hours in the previous seven days, it is reasonable for him or her to feel fatigued.

The because clause also requires that the driver sought, and was unable to obtain, correction of the unsafe condition.

Paquin v. J.B. Hunt Transport, Inc., 93-STA-44 (Sec'y July 19, 1994) (evidence did not establish that the Complainant told his employer about the hours issue).

V. B. 2. a. iv. Fatigue; physical condition

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.

V B 2 a iv Refusal to work due to fatigue

Where the complainant refused to operate a commercial motor vehicle due to his fatigue, his refusal constitutes protected activity. See 49 C.F.R. § 392.3. Self v. Carolina Freight Carriers Corp., 91-STA-25 (Sec'y Aug. 6, 1992).

V.B.2.a.iv. Protected activity; fatigue

Section 2305(b) of the STA provides that it is unlawful to discriminate against any employee "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." According the section 392.3 of the Federal Motor Carrier Safety Regulations, "no driver shall operate a motor vehicle, while the driver's ability or alertness is so impaired, or so likely to become impaired through fatigue, illness, or any other cause, as to make it unsafe for him to begin or continue to operate the motor vehicle." Thus, in Sickau v. Bulkmatic Transport Co., 94-STA-26 (ALJ June 22, 1994), the ALJ found that the complainant had engaged in a protected activity when he refused to take an assignment because he was too fatigued and because the number of hours the run would have taken would have put the complainant above the maximum number of driving and on- duty hours as set by regulation by the Department of Transportation.

V. B. 2. a. iv. Fatigue; physical condition

When a driver had more than 80 on-duty hours in the previous seven days, it is reasonable for him or her to feel fatigued.

The because clause also requires that the driver sought, and was unable to obtain, correction of the unsafe condition.

Paquin v. J.B. Hunt Transport, Inc., 93-STA-44 (Sec'y July 19, 1994) (evidence did not establish that the Complainant told his employer about the hours issue).

V B 2 a v. Refusal to drive when in pain or on medication

Where the Complainant was found to have refused to drive 2,000 miles to Oregon in part because he was in pain or was drowsy due to medication, the refusal to drive was protected activity under the "when clause" of the STAA.

Palazzolo v. PST Vans, Inc., 92-STA-23 (Sec'y Mar. 10, 1993).

[STAA Whistleblower Digest V B 2 a v]
PROTECTED ACTIVITY; INFORMING THE EMPLOYER ABOUT A SEDATIVE PRESCRIPTION MEDICATION; INABILITY TO UNLOAD

The Complainant did not engage in protected activity merely by informing his employer about having been prescribed a medication for a back condition that had possible sedative side effects where the physician who prescribed the medication had not imposed any driving restrictions, the Complainant had not taken the medication that date and was not experiencing any side effects, the Complainant had indicated that he could safely complete his driving assignment that day, and he in fact did safely complete the drive. Similarly, the Complainant did not engage in protected activity when he voiced a concern about not being able to unload furniture due to a back condition. Safley v. Stannards, Inc. , ARB No. 05-113, ALJ No. 2003-STA-54 (ARB Sept. 30, 2005).

[STAA Digest V B 2 B]
PROTECTED ACTIVITY; REFUSAL TO OPERATE MAY ENCOMPASS ACTUALLY OPERATING A VEHICLE IN A MANNER INTENDED TO MINIMIZE DANGER OF HARM OR VIOLATION OF LAW

Although we affirm the ALJs finding of protected activity and generally agree with his analysis, we do not agree with the ALJs 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 Klucks 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 employees 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 complainants 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 ALJs findingthat 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).

[STAA Digest V B 2 b]
PROTECTED ACTIVITY; REFUSAL TO DRIVE DOES NOT NEED TO BE PREDICATED ON VIOLATIONS OF FEDERAL SAFETY REGULATIONS SO SEVERE AS TO MANDATE TAKING THE TRUCK OUT OF SERVICE

In Maverick Transportation, LLC v. U.S. Dept. of Labor, Admin. Review Bd. , No. 12-3004 (8th Cir. Jan. 16, 2014, corrected Jan. 17, 2014) (2014 WL 148713), the Complainant, a commercial truck driver, was involved a fatal traffic accident, and was allowed to drive the truck away from the scene by a state trooper on condition that the trucks brakes were adjusted immediately, and that the trucking company, Maverick Transportation, LLC (Maverick), provided assurances that other federal safety violations would be corrected. The Complainant drove the truck about 80 miles to a truck stop, left the trailer to be picked up by another driver, and proceeded with the truck another 9 miles to his home. Maverick had the Complainant take medical leave for depression. Upon being cleared to work, the Complainant resigned instead. Maverick asked the Complainant to drive the truck about 200 to 250 miles to the yard, and the Complainant refused to do so unless Maverick first fixed the remaining defects and provided transportation home. The Complainant informed Maverick that the uncorrected defects were in violation of federal safety regulations, and left the truck at the truck stop where he had left the trailer a month earlier. The Complainant informed Maverick of the location of the truck. Maverick placed an abandonment notation in the Complainants Drive-A-Check (DAC) report. After resigning from Maverick, the Complainant worked for five different trucking companies between 2004 and 2008. In 2008, the Complainant began having trouble finding work, and was told by a recruiter that information on his DAC report prevented his hiring. The Complainant then requested the report, and learned for the first time in July or August of 2008 about the abandonment notation. The Complainant subsequently sought employment with a trucking company for which he met all hiring criteria, but that company refused to hire him because of the DAC report. In December 2008, the Complainant filed a STAA complaint with OSHA against Maverick. The ALJ found that the complaint was timely, and that Maverick had unlawfully retaliated against the Complainant for his refusal to drive the truck back to the yard. The ARB affirmed, and Maverick petitioned for review by the Eighth Circuit.

The ARB had concluded that the Complainants refusal to drive was protected by the STAA because the trucks uncorrected defects violated federal safety regulations. See 49 U.S.C. § 31105(a)(1)(B)(i). Maverick argued on appeal that under 49 C.F.R. § 396.9(c) the defects were not violations of safety regulations because they were not severe enough to place the truck out of service. The court was not persuaded, finding nothing in the text of section 396.9(c) "which sets forth the standard for placing a vehicle out of service, limits violations to only those severe enough to place a vehicle out of service. " Slip op. at 11. The court did not address the ARBs alternative finding that the refusal to drive was also protected activity under 49 U.S.C. § 31105(a)(1)(B)(ii) based on the Complainants reasonable fear of danger to himself or the public due to the trucks unsafe condition.

[STAA Digest V B 2 b]
PROTECTED ACTIVITY; REFUSAL TO DRIVE; OBJECTIVELY REASONABLE BELIEF; REASONABLENESS OF COMPLAINANT'S BELIEF, WITHOUT AN INSPECTION, THAT A FLAT TIRE HAD NOT BEEN FIXED PRIOR TO SECOND ASSIGMENT OF THE SAME TRUCK

In Klosterman v. E.J. Davies, Inc. , ARB No. 12-035, ALJ No. 2007-STA-19 (ARB Dec. 18, 2012) (reissued with corrected caption Jan. 9, 2013), the ALJ found that the Complainant had engaged in other protected activity, but not on the day of his constructive discharge in regard to a refusal to drive based on his belief that a flat tire had not been fixed on his assigned truck. The ARB disagreed. The Complainant had earlier complained that this truck had a flat tire. A few days later he was assigned the same truck and refused to drive that truck because of the flat. In ruling on whether this was protected activity the ALJ indicated that the refusal to drive provision of the STAA required that the Complainant establish that the tire was actually flat rather than just that he believed the tire was flat. The ARB found that this was error, and that it had recently ruled that the statute does not include the qualifier actual, and that the protection Section 31105(a)(1)(B)(i) affords also includes refusals where the operation of a vehicle would actually violate safety laws under the employees 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. USDOL/OALJ Reporter at 5, citing and quoting Asst Secy & Bailey v. Koch Foods , ARB No. 10-001, ALJ No. 2008-STA-61, slip op. at 9 (ARB Sept. 30, 2011). The ARB found that the Complainant in the instant case only needed to show that operation of the truck would have violated a safety regulation under his reasonable belief of the facts at the time of the refusal to operate the truck. Although the Respondents owner testified that he had repaired the flat, there was no evidence of record to support that claim and there was no evidence showing that the Complainant no longer reasonably believed the tire was flat at the time of the second assignment of the truck. The ARB acknowledged that the record was silent as to whether the Complainant inspected the truck at the time of the second assignment, but found it undisputed that the owner did not inform the Complainant that he had fixed the truck, but had instead told the Complainant that its just one trip and that he should drive or go home. The ARB found that these statements suggested that the tire was not fixed. The ARB stated that had the owner informed the Complainant that the tire was fixed, the Complainant could not have reasonably refused to drive. In the instant case, however, the facts were sufficiently clear for the ARB to conclude that the Complainant reasonably believed that the tire was flat on the day in question, and therefore the Complainant engaged in protected activity.

One member of the Board wrote separately to state that under the ALJs finding on the facts of the case, it was questionable whether other drivers in the Complainants situation would have assumed the tire was flat without doing an inspection. Nonetheless, because the ALJ found other protected activity, this unanswered question was harmless.

[STAA Digest V B 2 b]
PROTECTED ACTIVITY; REFUSAL TO DRIVE CLAUSE; ACTUAL VIOLATION; DRIVER INSPECTIONS UNDER 49 C.F.R. §§ 392.7 AND 396.13

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 did not contend that he could meet the "reasonable apprehension" clause of section 31105(a)(1)(B), but only argued that he meet the "actual violation" clause. Specifically, the Complainant contended that operating his vehicle without completing his preferred pre-trip inspections (which were more extensive than those prescribed by the Respondent) would have resulted in violation of two general FMCSRs, 49 C.F.R. §§ 392.7 and 396.13 (2008), which essentially state that a commercial motor vehicle shall not be driven unless the driver is satisfied that the motor vehicle is in safe operating condition.

The Complainant acknowledged that he was not entitled to take unlimited measures to satisfy himself under those regulations, but only those that were reasonably necessary. The Respondent did not dispute the "reasonably necessary" standard, but argued that its approved inspection measures were themselves reasonable, and that the Complainant did not have an objectively reasonable need to take the additional measures.

The Fourth Circuit reviewed ARB caselaw, and found that it persuasively suggested that "where an employer's prescribed inspection methods are themselves reasonable, an employee's additional inspection measures will typically not be reasonably necessary to satisfy him that his vehicle is safe to drive under 49 C.F.R. §§ 392.7 and 396.13." Slip op. at 14. The court found that this finding made sense as a matter of policy, because under the Complainant's approach "carriers and regulators would be placed in the untenable position of having to assess the reasonableness of as many different safety inspections as there are drivers. Clearly, an approach in which every driver is permitted to design his own inspection routine would seriously undermine the ability of carriers to ensure the timely delivery of packages." Slip op. at 14-15.

The court also noted that the Complainant had not been disciplined simply for using pre-trip inspection techniques beyond those prescribed by the Respondent, but based on the significant delays caused by his the length of his inspections, which were more than double the average of other drivers on his route, and which resulted in numerous delays and service failures. The Complainant did not show that the extra time he spent on inspections made any appreciable difference in the safety of his vehicle.

[STAA Digest V B 2 b]
PROTECTED ACTIVITY; GENERAL DISSATISFACTION WITH THE RESPONDENTS PRE-TRIP INSPECTION 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 Complainant argued that he had the responsibility under the FMCSR, 49 C.F.R. 392.7 and 396.13, to assure himself that his assigned truck was in safe operating condition before he drove it. The Complainant argued that he had the right to conduct the inspection to his standards no matter how long it took. The ARB rejected this contention, holding that the Complainant could complain about the safety of his vehicle during or following inspections pursuant to 49 C.F.R. 392.7 and 396.13, but that, under the complaint clause of the STAA, he had to be at least be acting on a reasonable belief regarding the existence of a safety violation. The ARB stated that this standard required the Complainant to prove that a person with his expertise and knowledge would have a reasonable belief that the Respondents inspection methods were in violation of the regulations and that the Complainants use of the Respondents pre-trip inspection methods would lead the Complainant to reasonably believe that the truck was not in good operating order and safe to drive. In the instant case, the record was not only devoid of evidence that the Respondents pre-trip inspection methods violated the regulations, but contained substantial evidence showing that its methods exceeded both industry practice and the requirements of the FMCSRs.

[STAA Digest V B 2 b]
PROTECTED ACTIVITY; REFUSAL TO DRIVE; DRIVING UNDER PROTEST IS NOT A REFUSAL TO DRIVE

In Calhoun v. United Parcel Service , ARB No. 04-108, ALJ No. 2002-STA-31 (ARB Sept. 14, 2007), the Complainant argued that he engaged in protected activity when he drove under protest because he was not able to conduct the pre-trip inspection according to his own methods, but was required to use the Respondents methods. The ALJ found that a conditional refusal to drive satisfied the refusal to drive element of a prima facie case under the STAA. The ARB disagreed, holding that the plain language of 49 C.F.R. 31105 (a)(B)(i or ii) limits protection under this section to a person who refuses to drive. Thus, the Complainant could not seek protection under the refusal to drive provision of the STAA for his driving under protest.

[STAA Digest V B 2 b]
PROTECTED ACTIVITY; REFUSAL TO DRIVE; TAKING ONESELF OUT OF SERVICE BECAUSE OF PERSONAL UPSET OVER BEING SUPERVISED DURING A PRE-TRIP INSPECTION IS NOT PROTECTED ACTIVITY

In Calhoun v. United Parcel Service , ARB No. 04-108, ALJ No. 2002-STA-31 (ARB Sept. 14, 2007), the Complainant took himself out of service because he was too upset to drive because he was being required to conduct his pre-trip inspection in the presence of his supervisor and a shop steward. The ARB held that this was not protected activity under the refusal to drive provisions of the STAA because the Complainant did not refuse to drive because to he was concerned about an actual violation of a FMCSR or because he had a reasonable concern about injury to himself or the public because of his vehicles unsafe condition.

[STAA Whistleblower Digest V B 2 b]
PROTECTED ACTIVITY; REFUSAL TO DRIVE; FAULTY WINDSHIELD WIPER

In Roberts v. Marshall Durbin Co. , ARB Nos. 03-071 and 03-095, ALJ No. 2002-STA-35 (ARB Aug. 6, 2004), the ARB affirmed the ALJ's finding that the Complainant engaged in protected activity when he refused to drive a truck which had defective windshield wipers. The ALJ found that driving the truck in such condition would be a literal violation of DOT regulation 49 CFR § 392.7. The Complainant's supervisor argued that common sense was necessary -- that it was a sunny day, and the Complainant was only asked to drive nine miles to a repair facility. The ARB, however, found nothing in the DOT regulation or DOT interpretations that give the driver discretion to drive in such circumstances. Although the Respondent presented Appendix A of the North American Standard Vehicle Out-of-Service Criteria , which indicates that a vehicle need only be placed out of service due to faulty wipers in the event of inclement weather, the ARB found that these criteria only applied to authorized safety inspections of vehicles on the road. Later in the decision, however, the ARB found that the "reasonable apprehension of serious injury" clause of the STAA whistleblower provision was not applicable because there was no evidence that the defective wipers alone presented any threat of serious injury to the Complainant or the public under the circumstances.

[STAA Digest V B 2 b]
PROTECTED ACTIVITY; COMPLAINT ABOUT UNCOMFORTABLE SEAT

In Jackson v. Wyatt Transfer, Inc. , ARB No. 04-012, ALJ No. 2000-STA-57 (ARB Dec. 30, 2004), the ARB rejected the Complainant's contention that he engaged in protected activity when he complained that his assigned truck did not have a seat that oscillated, and therefore caused discomfort in his back. The Board noted that the Complainant had sought to link an uncomfortable seat with safety, but held that the Complainant's apprehension that an uncomfortable seat is an unsafe condition did not appear to have been reasonable.

[STAA Whistleblower Digest V B 2 b]
PROTECTED ACTIVITY; REASONABLE APPRENHENSION OF SERIOUS INJURY; FAULTY WINDSHIELD WIPER

In Roberts v. Marshall Durbin Co. , ARB Nos. 03-071 and 03-095, ALJ No. 2002-STA-35 (ARB Aug. 6, 2004), the ARB affirmed the ALJ's finding that the Complainant engaged in protected activity when he refused to drive a truck which had defective windshield wipers. The ALJ found that driving the truck in such condition would be a literal violation of DOT regulation 49 CFR § 392.7. The Complainant's supervisor argued that common sense was necessary -- that it was a sunny day, and the Complainant was only asked to drive nine miles to a repair facility. The ARB, however, reversed the ALJ's finding that the Complainant's refusal to drive was also protected under the "reasonable apprehension of serious injury" clause of the STAA, 49 U.S.C. § 31105(a)(1)(B)(ii). The ARB found that the Complainant had not presented any evidence that the defective wipers alone presented any threat of serious injury to the Complainant or the public under the circumstances (no threat of rain; short drive to repair shop).

V B 2 b Refusal to work, defective vehicle

In Thom v. Yellow Freight System, Inc., 93-STA-2 (Sec'y Nov. 19, 1993), the Secretary adopted the ALJ's finding that a tractor's inability to maintain speed created a hazard on an interstate highway where the flow of traffic was 55-65 mph and where "ruts" had been imposed during highway resurfacing (resulting in difficulty controlling fishtailing due to lower tension between trailers at lower speed), and that Complainant reasonably apprehended serious injury due to the unsafe condition.

The Secretary agreed with the ALJ that the "because" clause of section 405(b) should be construed broadly to apply to conditions rendering operation of a commercial motor vehicle hazardous, citing

Roadway Exp., Inc. v. Dole, 929 F.2d 1060, 1062- 1063 (5th Cir. 1991) (hazardous ice storm)
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) (adverse road conditions; tractor difficult to handle on ice and snow due to its type of tires and the fact that the front end tended to rise)
Palmer v. Western Truck Manpower, 85-STA-6 (Sec'y Jan. 16, 1987), aff'd, No. 92-70231 (8th Cir. Sept. 27, 1993) (unpublished decision available at 1991 U.S. App. LEXIS 21675; table case at 943 F.2d 56) (improperly loaded but otherwise sound tractor trailer).
Cf. Consolidation Coal v. Federal Mine Safety & Heath, 795 F.2d 364 (4th Cir. 1986) (work refusal protected where miner questioned safety of procedure utilizing locomotive and "trailing motor" to brake runaway "trip" of coal haulage cars).

Under these cases, the Secretary expressly has rejected the argument that section 405(b) is limited to situations where the equipment is mechanically defective.

See Palmer v. Western Truck Manpower, 85-STA-6 (Sec'y Jan. 16, 1987), aff'd, No. 92-70231 (8th Cir. Sept. 27, 1993) (unpublished decision available at 1991 U.S. App. LEXIS 21675; table case at 943 F.2d 56), slip op. at 19: "the section by section analysis of [Section 405(b)], prepared by the Senate Commerce Committee which reported out the legislation, noted that 'it is intended to assure that employees are not forced to drive unsafe vehicles or commit unsafe acts.' 128 Cong. Rec. 29192 (1982).")

Whether a condition is sufficiently hazardous requires the exercise of judgment and ordinarily is made on the basis of information available at the time of the refusal. Duff Truck Line, Inc. v. Brock, slip op. at 5. That the assignment is successfully completed standing alone does not necessarily prove that the mission was safe. Id., slip op. at 7.

[STAA Whistleblower Digest V B 2 b]
PROTECTED ACTIVITY; REFUSAL TO DRIVE UNTIL COMPLAINANT'S PRE-TRIP INSPECTION ROUTINE WAS COMPLETED

In Calhoun v. United Parcel Service , 2002-STA-31 (ALJ June 2, 2004), the Complainant was disciplined for making pre-trip inspections that were more extensive than the Respondent's standard procedure. The ALJ found that such inspections were protected activity under the "refusal to drive" clause of 49 U.S.C. § 31105(a)(1)(B), even though in each instance the Complainant eventually drove the vehicle. The ALJ distinguished Zurenda v. J&K Plumbing & Heating Co. Inc. , ARB No. 98-088, ALJ No. 1997-STA-16 (ARB June 12, 1998), on the ground that the ALJ had found in that case that the evidence supporting the safety related nature of the employee's conditional refusal to drive was not credible, whereas in the instant case it was beyond question that the Complainant's refusals to drive until he completed pre-trip inspections were safety related.

[STAA Whistleblower Digest V B 2 b]
PROTECTED ACTIVITY; DOT REGULATIONS UNDER § 3105(a)(1)(B)(ii)

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). Thus, an STAA Complainant who routinely performed such inspections on non placard loads was not engaged in protected activity for purposes of 49 USCA § 3105(a)(1)(B)(i). Similarly, the ARB found that Complainant's claim that such inspections were supported by DOT regulations at 49 C.F.R. § 392.7, 396.1 and 396.13, which are general instructions on inspections and driver satisfaction on good working order of the vehicle, could not be interpreted as requiring two hour/100 mile tire inspections absent FHA/DOT guidance so mandating. Monde v. Roadway Express, Inc. , ARB No. 02 071, ALJ Nos. 2001 STA 22 and 29 (ARB Oct. 31, 2003).

V B 2 b Mechanical problems

Violations of the "because clause" involve more than engine defects, failed brakes, and other problems with the mechanical parts of a motor vehicle. For example, forcing an ill or fatigued driver to drive may constitute a violation. Smith v. Specialized Transportation Services, 91-STA-22 (Sec'y Apr. 30, 1992), slip op. at 3 and cases there cited. In Lajoie v. Environmental Management Systems, Inc., 90-STA-31 (Sec'y Oct. 17, 1992), slip op. at 3, 9, the Secretary found that an inoperative "hook-up light" at the rear of a cab was an unsafe condition because of the potential for serious injury when the driver reasonably could expect to work in darkness. A greasy coating on a cab's windshield and mirrors was found to be an unsafe condition in Zessin v. ASAP Express, Inc., 92-STA- 33 (Sec'y Jan. 19, 1993).

In the case under review, the Secretary found that a significant deterioration of the integrity of the body of a truck's cab likewise may constitute an unsafe condition, since in a crash the body likely would offer less protection to the driver, or a portion of the cab's body could detach while in operation. Thus, Complainant had a reasonable apprehension of injury to himself and to others because of the condition of the cab.

Dutile v. Tighe Trucking, Inc., 93-STA-31 (Sec'y Nov. 29, 1993).

V B 2 b Refusal to drive

One of the requirements for a prima facie case under the "because clause" of the STAA, 49 U.S.C. app. § 2305(b), is that the employee seek correction of the unsafe condition from his or her employer before refusing work.

In Dutile v. Tighe Trucking, Inc., 93-STA-31 (Sec'y Nov. 29, 1993), Complainant's refusal to drive a unit because its condition was unsafe was construed by the Secretary as an attempt to get his employer to do more substantial repairs. See Zessin v. ASAP Express, Inc., 92-STA-33 (Sec'y Jan. 19, 1993) (violation of "because clause" found where manager walked away when employee raised issue of safety defects, thereby effectively preventing the employee from seeking correction of unsafe condition).

[STAA Digest V B 2 c]
PROTECTED ACTIVITY; FAULTY AIR CONDITIONING

In Carter v. GDS Transport, Ltd. , ARB No. 08-053, ALJ No. 2008-STA-9 (ARB Feb. 27, 2009), the Complainant was a shuttle bus driver whose duty was to transport employees to and from public transportation terminals and the employees' worksites. He refused to drive a bus that had faulty air conditioning. The ARB found that the ALJ had properly found that voicing complaints about a faulty air conditioning system during a five- to ten-minute bus ride was not a safety concern classified as protected activity under the STAA. The ARB agreed that this was not protected activity because it was not based on a reasonable belief that driving the bus would violate a federal regulation, standard, or order related to commercial motor vehicle safety or health, or on a "reasonable apprehension of serious injury to the employee or the public because of the vehicle's unsafe condition." The ARB also affirmed the ALJ's finding that, although the Complainant had engaged in protected activity when he complained about problems with the horn, brakes, tires, and door on the assigned bus, the Employer's articulated ground for terminating the Complaint abandonment of his job was not shown to be pretext.

V B 2 c Overweight vehicle

Where the complainant refused to drive an overweight truck and communicated to the respondent that his refusal was based on the potential violation of federal regulations and a safety concern for himself and the public, and where the complainant refused the respondent's proposal for correcting the overweight problem because it required him to drive 240 miles with the overweight load, the complainant engaged in protected activity under the STAA § 2305(b). Galvin v. Munson Transportation, Inc., 91-STA-41 (Sec'y Aug. 31, 1992).

[STAA Digest V B 2 c]
PROTECTED ACTIVITY; ACTUAL VIOLATION CLAUSE; COMPLAINANT'S SUBJECTIVE ASSESSMENT THAT IT WOULD HAVE VIOLATED A STATE "REASONABLE AND PRUDENT" SPEED LAW TO HAVE MAINTAINED THE SPEED REQUESTED BY HIS EMPLOYER IS NOT PROOF OF AN ACTUAL VIOLATION

In Krahn v. United Parcel Service of America, Inc. , ARB No. 04-097, ALJ No. 2003-STA-24 (ARB May 9, 2006), PDF the Board assumed for purposes of deciding the appeal that the Complainant's refusal to follow a manager's instructions regarding brake usage and maintaining speed was a conditional refusal to drive covered under section 31105(a)(1)(B). The Complainant alleged that his refusal to increase or maintain his speed as requested by the manager was protected activity under the "actual violation" provision of section 31105(a)(1)(B)(i) because to comply would have violated a state law providing that a driver must not drive faster than what is "reasonable and prudent under the circumstances...." The Board rejected this contention because, other than his general allegation that it would have been unsafe, the Complainant had "not identified a single specific incident where following [the manager's] instructions ... would have resulted in an actual violation of [the state law]." USDOL/OALJ Reporter at 9. The Complainant's subjective assessment that he would have violated the state law was not proof of an actual violation.

[STAA Digest V B 2 c]
PROTECTED ACTIVITY; REASONABLE APPREHENSION CLAUSE; COMPLAINANT'S SUBJECTIVE ASSESSMENT THAT HIS METHOD OF OPERATING THE VEHICLE WAS THE SAFEST WITHOUT PROOF THAT THE HAZARDS ALLEGED ACTUALLY PRESENTED THEMSELVES WAS AN INSUFFICIENT JUSTIFICATION FOR REFUSING TO MAINTAIN THE SPEED REQUESTED BY HIS EMPLOYER

In Krahn v. United Parcel Service of America, Inc. , ARB No. 04-097, ALJ No. 2003-STA-24 (ARB May 9, 2006), PDF the Board assumed for purposes of deciding the appeal that the Complainant's refusal to follow a manager's instructions regarding brake usage and maintaining speed was a conditional refusal to drive covered under section 31105(a)(1)(B). The maximum posted speed on the Complainant's route was 75 miles per hour, but the Respondent's policy was not to exceed 65 miles per hour. The Complainant routinely drove much slower. The Complainant alleged that his refusal to increase or maintain his speed as requested by the manager was protected activity under the "reasonable apprehension" provision of section 31105(a)(1)(B)(ii) based on his testimony that the Respondent's vehicles were, in most instances, unsafe at 65 miles per hour. The ARB rejected this contention because the Complainant did not provide any support for his contention, and because the record reflected that three other regularly assigned drivers on the same route routinely completed the trip in less time than the Complainant without incident. The Board acknowledged that the Complainant was a safety-conscious individual -- but without identifying that any potential hazards actually presented themselves -- the Complainant's "own subjective assessment that his way of operating the vehicle was the safest method is not sufficient justification for refusing to follow [his manager's] instructions." USDOL/OALJ Reporter at 12.

[STAA Digest V B 2 c]
PROTECTED ACTIVITY; REFUSAL TO DRIVE IN AREA WHERE THERE HAD BEEN RANDOM SNIPER SHOOTINGS

In Cummings v. USA Truck, Inc. , ARB No. 04-043, ALJ No. 2003-STA-47 (ARB Apr. 26, 2005), the Complainant was scheduled to drive a load of cargo from Ohio to Virginia via the Washington, D.C., area. Because random sniper shootings were occurring in the Washington, D.C. area at that time, Cummings states that he refused to drive the cargo to Virginia as he feared for his safety. The Respondent fired him the same day.

The Complainant argued that to drive under such circumstances would constitute a violation of the prohibitions against carriers requiring or permitting the operation of a motor vehicle in hazardous conditions pursuant to 49 C.F.R. § 392.14 or the operation of a motor vehicle in an unsafe condition pursuant to 49 C.F.R. § 396.7. The ARB rejected this argument, finding that to invoke protection under 49 U.S.C.A. § 31105(1)(B)(i), a complainant must allege and ultimately prove that an actual violation would have occurred. The Board stated that contrary to the Complainant's assertion, a reasonable and good faith belief by the driver alone that it is unsafe to drive is not enough. Moreover, the ARB stated that the hazardous conditions described at Section 392.14 are only those conditions affecting visibility or traction which would make it unsafe to operate a commercial motor vehicle.

[STAA Whistleblower Digest V B 2 c]
PROTECTED ACTIVITY; REFUSAL TO DRIVE INTO REGION IN WHICH SNIPER SHOOTING WERE OCCURING

In Cummings v. USA Truck, Inc. , 2003 STA 47 (ALJ Jan. 9, 2004), the ALJ recommended dismissal of a complaint that was based on the Complainant's refusal to take a driving assignment that would have taken him through the Washington, DC area during a period of sniper shooting in that region. The complaint was not based on allegation that the Complainant was either asked to violate a commercial vehicle regulation nor an apprehension that his safety was at risk due to the unsafe condition of the vehicle. The ALJ found that the Complainant's apprehension that a sniper might be present on the route did not fall within the employee protections provided for in the STAA. The ALJ also found that, considering the millions of persons who went to work in the region at time, any allegation that the Complainant was exposed to an unreasonable risk of danger was unavailing.

[STAA Digest V B 2 c]
REFUSAL TO PARK AND UNLOAD

Refusal to unload a truck from the roadside would constitute protected activity if the refusing driver has a reasonable apprehension of serious injury. Garcia v. AAA Cooper Transportation , 1998-STA-23 (ARB Dec. 3, 1998). In Garcia , the only evidence Complainant presented to support the reasonableness of his concern about the safety of unloading was his own testimony. Respondent, however, presented testimony of two employees who that same day were able to assess the situation with the same trailer used by Complainant, and who found that the delivery could be made safely. Respondent also presented evidence from two employees of the customer who reported that deliveries were made daily from trucks parked on the street, and that in fact a UPS truck was making a delivery at the same time as Complainant's aborted delivery. Finally, Respondent also presented evidence that other of its drivers routinely made deliveries to the same location without problems or safety concerns. The ARB found, therefore, that substantial evidence supported the ALJ's conclusion that Complainant failed to prove that his safety concerns were reasonable. Thus, Complainant did not engage in protected activity under the STAA.

PROTECTED ACTIVITY; WORK REFUSAL BASED ON WEATHER CONDITIONS
[STAA Digest V B 2 c]

A driver can refuse to drive based on a reasonable belief that observed snowfall will create a hazardous situation. Cleary v. Flint Ink, Corp. , 94-STA-52 (Sec'y Mar. 4, 1996). In Cleary , however, the Secretary held that, given the evidence presented and the changing nature of the weather, the Complainant was not reasonable in assuming that the roads would be unnavigable sixteen hours after his decision not to drive. In addition, the Complainant's supervisor had given the Complainant the option to commence his run earlier than scheduled or to wait until the scheduled time.

V B 2 c PROTECTED ACTIVITY; COVERAGE OF MESSENGER UNDER STAA

In Caimono v. Brinks, Inc. , 95-STA-4 (ALJ Sept. 7, 1995), the ALJ concluded that the activities of a messenger for an armored car company are generally not covered by the whistleblower provision of the STAA insofar as they relate to personal safety from outside interference as opposed to potential injury from the operation of the vehicle. The ALJ also concluded that, even assuming Complainant's allegations of unsafe conditions were covered activities, he had not carried his burden showing that he had a reasonable apprehension of serious injury to himself or the public.

V B 2 c Unsafe Conditions

Section 2305(b) protects an employee's refusal to drive equipment where the employee has a "reasonable apprehension of serious injury to himself or the public due to the unsafe condition of such equipment." The Secretary construed this provision to apply to weather conditions, which make operation of a commercial vehicle on the road a safety hazard. The Secretary reasoned that where driving is hazardous as a result of weather conditions, the equipment becomes unsafe on the road. 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 B 2 c Refusal to drive a shifted load is protected activity under both the "when" and "because" clauses of the Act

In Newkirk v. Cypress Trucking Lines, 88-STA-17 (Sec'y Feb. 13, 1989), Complainant was employed by Respondent as a truck driver. Respondent told Complainant to pick up a trailer that had already been loaded and transported locally a distance of several miles. After pulling the trailer a distance of about 100 yards, Complainant noted that the trailer was very heavy. Upon weighing the load it was evident that the load had shifted forward and could no longer be hauled safely. Complainant refused to haul the shifted load. When the president of the Respondent corporation discovered that the load had not been delivered, he reportedly said either "fire [the Complainant]" or "get rid of him." Six days later, Complainant was terminated.

The Secretary held that Complainant's refusal to haul the shifted load qualified as protected activity under both the "when" (federal violation) and "because" (reasonable apprehension) clauses.

V B 2 c When the violation occurs

The question of whether a driver's refusal to drive his truck constituted a refusal to operate a vehicle in violation of a federal regulation was dependent on whether section 392.14 applies only when the driver is on the road or also applies before he begins his assigned run. The Secretary noted that the intent of the regulation is to prohibit the driving of commercial motor vehicles in adverse weather conditions unless such vehicles can be operated safely. The Secretary held that applying the regulation only when hazardous weather conditions are encountered after dispatch from the terminal is to create the absurd situation of drivers being compelled to take their vehicles at least out of the gate in order to avoid driving in sufficiently dangerous conditions. The Secretary found that since the Complainant refused to drive from the start, there was a federal regulation which could have been violated had the Complainant been forced to drive. 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 B 2 c No chains in the vehicle

A Complainant's refusal to drive because there were no chains in the vehicle was not protected activity because there is no federal safety regulation that requires keeping chains in a commercial motor vehicle, and where there was uncontradicted testimony that the Respondent assumed the cost of renting chains and that the Complainant could have obtained them if weather conditions so required.

Palazzolo v. PST Vans, Inc., 92-STA-23 (Sec'y Mar. 10, 1993).

[STAA Digest V B 2 d]
DISPATCHING COMPLAINANT ON DELIVERY THAT COULD NOT BE MADE ON THE CONTRACTOR'S SCHEDULE WITHOUT VIOLATING FMCS HOURS OF SERVICE REGULATIONS

In Anderson v. Timex Logistics , ARB No. 13-016, ALJ No. 2012-STA-11 (ARB Apr. 30, 2014), the Respondent dispatched the Complainant to transport a load from Seattle to San Francisco, a distance of over 800 miles requiring more than 11 hours of driving. The broker with which the Respondent contracted stipulated that this was a "hot shipment" and that the Respondent's drivers were expected to drive straight through. The Respondent directed the Complainant to take the assignment by himself. After driving 9.75 hours, the Complainant stopped for a rest break. The broker checked on the status of the delivery, and the Respondent tracked down the Complainant during his break. Another driver was sent to complete the run. Shortly after this incident, the Complainant was terminated from employment. The termination listed three incidents that contributed to the termination decision, the last being that the Complainant missed the San Francisco delivery appointment with the consequence that the Respondent was charged back $1500 by the broker for sending another company to pick up that load from the Complainant's truck. The ARB affirmed the ALJ's determination that the termination violated the STAA whistleblower provision at 49 U.S.C. § 31105(a)(1)(B)(i) because the Respondent was prohibited by FMCS regulation from requiring a driver to operate a commercial vehicle more than 11 consecutive hours following 10 consecutive hours off-duty. See 49 C.F.R. § 395.3(a) (2010). The ARB noted that the actual driving time from Seattle to San Francisco was approximately 16 hours, and the Complainant could not have legally performed the assigned run without running afoul of either the broker's delivery requirements or the FMCS hours of service regulations. Although the termination letter cited several reasons for the firing, substantial evidence established that the San Francisco dispatch contributed to the Respondent's termination decision.

[STAA Digest V B 2 d]
PROTECTED ACTIVITY; REFUSAL TO DRIVE; COMPLAINANTS BELIEF THAT THE TIME BETWEEN HIS SPILT SHIFTS WAS ON-DUTY TIME, THEREBY CAUSING A DAILY 15 MINUTE VIOLATION OF THE HOURS OF SERVICE REGULATION, FOUND NOT TO HAVE BEEN PROVIDED TO BE OBJECTIVELY REASONABLE WHERE ONLY EVIDENCE ON THE ISSUE WAS COMPLAINANTS PERSONAL OPINION

In Gilbert v. Bauer's Worldwide Transportation , ARB No. 11-019, ALJ No. 2010-STA-22 (ARB Nov. 28, 2012), the Complainant was a shuttle bus driver whose driving assignment required a spilt shift. The Complainant refused to drive because he believed that every minute of the spilt shift was on-duty and therefore 15 minutes of each day exceeded the hours-of-service regulation.

The DOT regulation at 49 C.F.R. 395.5(a)(2) prohibits a covered driver from driving after having been on duty 15 hours following 8 consecutive hours off duty. The DOT regulation at 49 C.F.R. 395.1, generally defines on duty time as the time that the driver begins to work or required to be in readiness, waiting to be dispatched, inspecting, servicing, or conditioning a commercial motor vehicle, driving, loading/unloading, and repairing a disabled commercial vehicle, among other things. The ARB noted that While the regulatory definition certainly has some gray areas, it makes clear that certain activity is considered off duty, such as sleeping and resting. Moreover, taking a meal break would not fit in the definitions of on duty unless [the complainant] convinced the ALJ that he was a in a state of readiness to work. USDOL/OALJ Reporter at 8.

In the instant case, the ARB affirmed the ALJs finding that the Complainant had not established protected activity under the STAA because, although the Complainants established that he subjectively believed that there was a violation, he failed to establish that his belief was objectively reasonable where the only evidence the Complainant presented on the issue was his personal opinion. The ARB found that the Complainant failed to prove to the ALJ that it was reasonable to believe that sleeping, eating, and resting at home was on duty for purposes of the 15 hour on duty limit.

[STAA Digest V B 2 d]
PROTECTED ACTIVITY; HOTLINE COMPLAINT

An internal complaint through the Respondent's compliance hotline is protected activity under the STAA. Williams v. Domino's Pizza , ARB No. 09-092, ALJ No. 2008-STA-52 (ARB Jan. 31, 2011).

[STAA Digest V B 2 d]
PROTECTED ACTIVITY; COMPLAINT ABOUT SCHEDULING IS NOT PROTECTED ACTIVITY ABSENT IMPLICATION OF HOURS OF SERVICE RULES

In Bethea v. Wallace Trucking Co. , ARB No. 07-057, ALJ No. 2006-STA-23 (ARB Dec. 31, 2007), the ARB noted that voicing concerns about scheduling which did not implicate hours of service rules is not protected activity under the STAA.

[STAA Whistleblower Digest V B 2 d]
PROTECTED ACTIVITY; REFUSAL TO DRIVE; INCOMPLETE OR INACCURATE POST-TRIP REPORT

In Roberts v. Marshall Durbin Co. , ARB Nos. 03-071 and 03-095, ALJ No. 2002-STA-35 (ARB Aug. 6, 2004), the ALJ found that the Complainant engaged in protected activity when he refused to drive because post-trip reports were inaccurate and a supplementary report was allegedly falsified. The ARB found that such defects in post-trip reports, standing alone, do not necessarily justify a refusal to drive under 49 U.S.C. § 31105(a)(1)(B)(i). Although not making a conclusive holding in this regard, the ARB's decision implies that a short drive and a pre-trip inspection could "override" an incomplete or inaccurate post-inspection report, and that a DOT interpretation specifically permits a substitute post-trip report to be created when, in unusual circumstances, the post-trip report is missing.

V B 2 d Distinction between refusal to drive and refusal to begin rest break

The Complainant failed to establish protected activity pursuant to 49 C.F.R. § 392.3 (regulation prohibiting driving in a fatigued condition) or 49 C.F.R. § 395.3(a)(2) (prohibition on driving when the driver had been on duty 15 hours following 8 consecutive hours off duty) in an STAA whistleblower complaint where the Complainant was not instructed to drive, but rather to begin an eight hour rest break in the sleeper berth. The Secretary generally agreed with the ALJ's analysis, but disavowed certain conclusions the ALJ made about bifurcated rests periods.

Brothers v. Liquid Transporters, Inc., 89-STA-1 (Sec'y Feb. 27, 1990), slip op. at 3-8.

V B 2 d Refusal to drive based on break of sleeping pattern; presumption that regulation establishes baseline of safe operation

In Brandt v. United Parcel Service, 95-STA-26 (ALJ June 29, 1995), the Complainant refused a driving assignment on the ground that he would be too fatigued to drive safely as a result of his having to change his sleeping pattern, although he had more than 24 hours notice of the assignment, and he admitted that taking the assignment would not have violated the hours of service rules set out in Part 395 of 49 C.F.R. The Complainant supported his complaint with the assertion that safety laws should be liberally construed, and with articles documenting the extent of the problem of fatigue in the trucking industry, explaining the circadian rhythm (the biological clock that controls sleep patterns) and the need a person of several days to adjust to a new rhythm, and explaining that there is a high correlation between subjective feelings of sleepiness and some objective physiologic changes.

The ALJ held that the hours of service rules establish a presumption of safe operation that can be rebutted by evidence showing circumstances peculiar to a particular situation. Based on the scant evidence before him, the ALJ concluded that the Complainant had not shown that his refusal to take the assignment was protected activity.

The ALJ went on to find that, even assuming the Complainant engaged in protected activity, the Respondent had a valid business reason for terminating the Complainant -- if the Complainant could not change his sleeping pattern, he was not suitable for a job that required flexible drivers. The ALJ concluded that "[i]f it is true in general that disrupting a driver's sleep pattern is likely to result in dangerous driving, the hours of service rules should reflect this general truth.

V B 2 d Refusal to drive; hours of service

Refusing to drive when the contemplated run would cause the driver to violate the Federal hours of service regulation is protected activity under STAA section 405(b). Ass't Sec'y & Brown v. Besco Steel Supply, 93- STA-30 (Sec'y Jan. 24, 1995).

5 B 2 d Refusal to violate hours of service regulation

The STAA prohibits an employer from discharging an employee for refusing to operate a vehicle in violation of a Federal regulation, 49 U.S.C. § 2305(b), including the hours-of- service regulations at 49 C.F.R. Part 395. See Hamilton v. Sharp Air Freight Service, Inc., 91-STA-49 (Sec'y July 24, 1992), slip op. at 1-2. Greathouse v. Greyhound Lines, Inc. , 92-STA-18 (Sec'y Aug. 31, 1992).

V B 2 d Hours of service; completion of inspection reports against wishes of respondent

The complainant in Green v. Creech Brothers Trucking, 92-STA-4 (Sec'y Dec. 9, 1992), engaged in protected activity when he

complained to DOT following an accident which he felt was the result of excessive hours of service. In the complaint he also noted that the respondent didn't want him recording defects in the log book
complained to his superiors about concerns of unsafe tires
complained to his superiors about fatigue and refused to operate a commercial vehicle after having remained on duty for 15 hours
regularly completed vehicle inspection reports against the wishes of the respondent. The Secretary concluded that under the circumstances of the case, the complainant's persistence in completing the form in compliance with 49 C.F.R. § 396.11 to ensure its availability to DOT served as a continuing "complaint" to the respondent about its policy.

V B 2 d Refusal to violate hours of service regulation

A driver is protected in refusing to drive a dispatch that contemplates a violation of the hours-of-service regulations.

Settle v. BWD Trucking Co., Inc., 92-STA-16 (Sec'y May 18, 1994) ( citing Trans Fleet Enterprises v. Boone, 987 F.2d 1000, 1004 (4th Cir. 1992).

V B 2 d Refusal to violate hours of service regulation

The Complainant failed to establish that he engaged in protected activity where the evidence established that the Complainant routinely declined to use the most direct highway route from the point of dispatch to designation, increasing the "practical" route miles by a significant amount, and where the Respondent established using driver logs that the most practical route would have eliminated several of the over-hours violations. Judd v. Helena Truck Lines, Inc., 91- STA-48 (Sec'y Apr. 7, 1993).

V. B. 2. d. Refusal to violate hours of service regulation; protected activities

Refusing to drive when the contemplated run would cause the driver to violate the hours of service regulation, 49 C.F.R. § 395.3, is a protected activity under the "when clause." That regulation provides in relevant part, that a truck driver shall not drive after "[h]aving been on duty 70 hours in any period of 8 consecutive days if the employing motor carrier operates motor vehicles every day of the week." 49 C.F.R. § 395.3(b)(2).

Paquin v. J.B. Hunt Transport, Inc., 93-STA-44 (Sec'y July 19, 1994).

V B 2 d Refusal to violate hours of service regulation

Refusal to drive when the contemplated run would cause the driver to violate the hours of service regulations is protected activity under the STAA. Waldrep v. Performance Transport, Inc., 93-STA-23 (Sec'y Apr. 6, 1994), citing Trans Fleet Enterprises, Inc. v. Boone, 987 F.2d 1000, 1004 (4th Cir. 1992).

V. B. 2. d. Refusal to violate hours of service regulation; protected activities

Paquin v. J.B. Hunt Transport, Inc., 93-STA-44 (Sec'y July 19, 1994).

V B 2 d 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).

V B 2 e Refusal to drive with another driver must be based on an objectively reasonable belief that the other driver is dangerous

Refusing to drive with a dangerous driver is protected activity under the reasonable apprehension clause of section 405(b) of the STAA, if the refusing driver has a reasonable apprehension of serious injury. Bryant v. Bob Evans Transportation, 94-STA-24 (Sec'y Apr. 10, 1995).

In Bryant , Complainant's assertion that the assigned co-driver was unsafe, together with the testimony of two other drivers that the complained of driver was unsafe in certain conditions, was sufficient to establish the protected activity element of a prima facie case. The Secretary, however, found that the Complainant did not carry his ultimate burden of persuasion on the issue of protected activity because the Complainant failed to establish that his belief that the other driver was an unsafe driver was reasonable. The Respondent had presented evidence that the other driver's driving was satisfactory.

The Secretary noted that the Complainant's good faith belief that another driver was not a safe driver is not, standing alone, sufficient to prove a violation under the reasonable apprehension clause. Such a violation must be based upon more than a subjective good faith belief -- it must be objectively reasonable.

REFUSAL TO DRIVE; PROVING WEATHER CONDITIONS
[STAA Digest V B 2 e]

In Ass't Sec'y & Vilanj v. Lee & Eastes Tank Lines, Inc. , 95-STA- 36 (Sec'y Apr. 11, 1996), the complaint was based on the Complainant's refusal to drive due to adverse weather conditions. See 49 C.F.R. § 392.14. To invoke protection under 49 U.S.C. § 31105(a)(1)(B)(i), a complainant must prove that an actual violation would have occurred; a reasonable and good faith belief that it is unsafe to drive is not enough -- the weather conditions must be in fact such that a vehicle cannot be operated safely.

The Secretary, however, observed that determining whether weather conditions prohibited safe operation requires a subjective judgment. The determination is ordinarily made on the basis of information available at the time. It is not reserved to the driver alone, but it is also the duty of the carrier to determine whether the vehicle can be safely operated under existing conditions.

In Vilanj , the ALJ found that conditions were not sufficiently dangerous that the Complainant could not have safely driven a tank truck carrying hazardous materials. Although accepting that the ALJ's findings of fact were supported by substantial evidence, the Secretary disagreed with the ALJ's inferences and conclusions, and found that the Complainant should prevail.

The Secretary also relied on the fact that under an applicable collective bargaining agreement, the driver is deemed to be the best judge as to the seriousness of the situation in deciding whether to proceed.

V B 2 e The Complainant's Evidence Demonstrated that the Refusal of a Driving Assignment with a Particular Co-driver Constituted a Protected Activity; the Employer's Discharge for Such Refusal was Actionable under the Surface Transportation Assistance Act

The complainant refused to accept a driving assignment with a particular co-driver, contending that the co-driver fell asleep at the wheel on prior occasions and took too many breaks to make the trip feasible within the allotted time. Given the co- driver's propensities, complainant maintained that he would be forced to drive more than the regulatory permissible ten consecutive hours and that refusal of the assignment was based on his apprehensions regarding safety. The employer contended that the question of the co-driver's propensity to fall asleep was never raised by the complainant prior to discharge. It also introduced evidence of the co-driver's competency as a driver.

The Secretary adopted the ALJ's findings that the complainant had been engaged in protected activity when discharged, that a causal link had been established, and that the employer had failed to rebut the complainant's prima facie case. Taylor v. Broadhead and Ryder Distribution Resources, 91-STA-14 (Sec'y Feb. 11, 1992).

V B 2 e Unsafe co-driver

Section 2305(b) of the STAA covers refusals to drive because of safety concerns over an assigned co-driver rather than solely refusals based on the unsafe condition of a vehicle. Taylor v. Broadhead, 91-STA-14 (Sec'y Feb. 11, 1992), citing Self v.Carolina Freight Carriers Corp., 89- STA-9 (Sec'y Jan. 12, 1990) (indicating that the physical condition of a driver that could affect the safe operation of the equipment would fall under the "because" clause of section 2305(b)); also citing Mace v. ONA Delivery Systems, Inc., 91-STA-10 (Sec'y Jan. 27, 1992).

V B 2 f Schedule of run would require speeding

Scheduling a run in a manner that requires the driver to exceed applicable local speed limits is a violation of a Federal motor carrier safety regulation. Nolan v. AC Express, 92-STA-37 (Sec'y Jan. 17, 1995), citing 49 C.F.R. § 392.6 (1993), and McGavock v. Elbar, 86-STA-5 (Sec'y July 9, 1986), slip op. at 7.

V B 2 f STAA; refusal to speed as protected activity

An employee's stated refusal to drive over the speed limit in the future, in a situation where the carrier's policies required drivers to violate Department of Transportation speeding regulations, is protected activity 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." McGavock v. Elber, Inc., 86-STA-5 (Sec'y July 9, 1986).

V B 2 g First work refusal circumstance STAA; refusal to move truck with defective brakes

Where the complainant refused to further move his truck to a parking lot or to "cripple" it back to respondent's office because the truck's brakes were defective, complainant's refusal constituted protected conduct under the first "work refusal" circumstance of section 2305(b) because operating the truck would have violated a federal regulation applicable to commercial motor vehicle safety. See 49 C.F.R. § 392.7. LeBlanc v. Fogelman Truck Lines, Inc., 89-STA-8 (Sec'y Dec. 20, 1989), slip op. at 2-4, aff'd, No. 90-4114 (5th Cir. Apr. 17, 1991).

Wilson v. Bolin Associates, Inc., 91-STA-4 (Sec'y Dec. 30, 1991).

V B 2 g Moving equipment to safe location

In Green v. Creech Brothers Trucking, 92-STA-4 (Sec'y Dec. 9, 1992), the complainant's moving equipment to a safe location brought into play both the "when" and "because" clauses of STAA section 405(b). The Secretary found that the alternative "operation" of the vehicle, parking it on the traveled portion of the highway

This practice generally is prohibited under 49 C.F.R. § 392.21 unless it is impracticable to move the vehicle.

in inclement conditions with poor visibility while awaiting and performing tire replacement, presented precisely the hazard of serious injury to the complainant and the public that 49 C.F.R. § 396.7(b) is designed to avoid.

Although section 405(b)'s "because" clause normally requires an employee to seek correction of the unsafe condition from his employer before refusing work,

Duff Truck Line, Inc. v. Brock, No. 87-3324 (6th Cir. May 4, 1988), aff'g Robinson v. Duff Truck Line, Inc., 86-STA-3 (Sec'y Mar. 6, 1987).

where, as here, the requirement is not feasible, courts have recognized that it should not apply.

Simpson v. Federal Mine Safety & Health Rev. Com'n, 842 F.2d 453, 459-461 (D.C. Cir. 1988) (qualified requirement subject to exception where unusual circumstances, e.g., futility, exist).

The fact that moving the equipment unavoidably exacerbated tire damage did not remove section 405(b) protection in that DOT regulation 396.7 expressly contemplates that a vehicle may be operated in such condition as likely may cause breakdown if operation "is less hazardous to the public than to permit the vehicle to remain on the highway." The complainant, therefore, was protected in refusing to leave his vehicle on the highway and in moving it to the nearest safe location.

See LeBlanc v. Fogelman Truck Lines, Inc., 89- STA-8 (Sec'y Dec. 20, 1989), aff'd sub nom. Fogelman Truck Lines, Inc. v. Martin, No. 90-4114 (5th Cir. Apr. 17, 1991) (refusal to undertake trip assignment, returning instead to employer's terminal for repairs.
Cf. Secretary of Labor ex rel. Robinette v. United Castle Coal Co., 3 FMSHRC 803 (1981) (under Federal mine safety law, protection extended to forms of self-help, i.e., taking some affirmative action other than merely refusing to work).