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USDOL/OALJ Reporter
Ass't Sec'y & Curless
v. Thomas Sysco Food Services , 91-STA-12 (Sec'y Sept. 3, 1991)
U.S. DEPARTMENT OF LABOR
FINAL DECISION AND ORDER
SECRETARY OF LABOR
WASHINGTON, D.C.
DATE: September 3, 1991
CASE NO. 91-STA-12
IN THE MATTER OF
ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH,
PROSECUTING PARTY,
AND
ICHAEL R. CURLESS,
COMPLAINANT,
v.
THOMAS SYSCO FOOD SERVICE,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
Before me for review is the [Recommended] Decision and Order (R.D. and O.) issued on May 7, 1991, by Administrative Law Judge (ALJ) Bernard J. Gilday, Jr., in the captioned case, which arises under the employee protection provision of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1988).
The facts are not in dispute. In May 1988,
Complainant was hired by Respondent as a driver of commercial
motor vehicles. Hearing Transcript (T.) 64-67. While unloading a
delivery on the afternoon of December 11, 1989, Complainant
experienced severe chest pain, dizziness, and difficulty
breathing. T. 69. Paramedics transported Complainant to a
hospital emergency room, where he was monitored, administered
medication, including Valium,1 and released three to four hours later. T. 69-71.
Hospital personnel instructed Complainant not to drive, drink
alcohol, or operate machinery; to rest for 24 hours; and to
consult a cardiologist for follow-up monitoring. T. 80. The
brother of Respondent's transportation supervisor traveled to the
hospital after retrieving Complainant's truck and was advised of
Complainant's condition. Upon being released from the hospital,
Complainant telephoned the supervisor, explaining that he would
be absent from work the following day, December 12, because of
his condition, the effects of the medication, and the hospital
instructions, and that he intended to see a cardiologist on
December 12. T. 48, 79-82. On December 13, Complainant returned
to work and drove his route assignments. T. 93-94. Respondent
issued Complainant a "verbal warning" in written form
for his unexcused absence on December 12. That warning has been
removed from Complainant's personnel file pursuant to
Respondent's absenteeism policy and cannot now result in
disciplinary action.2
T. 136-137; R.D. and O. at 6.
Under Respondent's attendance policy,
employees are permitted certain absences for which no
disciplinary action may be imposed. Absence for earned vacation,
funeral attendance, jury duty, an employee's birthday, and
military duty is not subject to discipline. In addition, an
employee is permitted four days each year of "personal"
leave. Once an employee has used his four personal days,
any unexcused absence, regardless of the reason, constitutes an
"incident." If an employee accumulates more than three
incidents within his rolling year, he is issued a verbal
warning.3 Perfect
attendance for five months following the most recent incident
results in elimination of any record of the earliest incident
within the rolling year. See T. 173-178, 191. Complainant
received the verbal warning at issue because he previously had
used his four personal days, and his December 12, 1989, absence
constituted the fourth outstanding incident in his rolling year.
Complainant thereafter filed a complaint of
unlawful discrimination under the STAA. Complainant claimed that
he should not have been disciplined for his absence since he had
been "DOT unqualified" to perform his route assignments
on December 12, i.e., he would have violated Department of
Transportation (DOT) regulations by reporting for work.
See 49 C.F.R. §§ 392.3, 392.4 (l990). Those
regulations, inter alia, prohibit the operation of commercial
motor vehicles by drivers who are ill or impaired by the
use of medication. After investigation, the Assistant
Secretary for Occupational Safety and Health found (1)
that Complainant had refused to operate a motor vehicle on
December 12, 1989, when such operation would have violated DOT
regulations, (2) that Complainant's work refusal constituted
protected activity under the STAA, and (3) that Respondent's
"verbal warning" issued to Complainant for engaging in
protected activity violated the STAA. Accordingly, the Assistant
Secretary ordered Respondent to expunge from Complainant's
personnel records any adverse reference to his December 12
absence and to exclude from its absenteeism policy any
consequence attributable to activity protected under the STAA.
Respondent contested the Assistant Secretary's findings and
requested a hearing. The ALJ has recommended that the complaint
be dismissed.
Respondent argues, and the ALJ has
recommended, that the complaint should be dismissed because no
actual "case or controversy" now remains after the
"verbal warning was eliminated from [Complainant's]
personnel file, it may never be used against him and he cannot .
. . be disciplined because he did not report for work on December
12, 1989." R.D. and O. at 8. I disagree.
"Administrative [proceedings are] not bound by the
constitutional requirement of a 'case or controversy' that limits
the authority of article III courts to rule on moot issues."
Climax Molybdenum Co. v. Secretary of Labor, 703 F.2d 447,
451 (l0th Cir. 1983); Tennessee Gas Pipeline Co. v. Federal
Power Com'n, 606 F.2d 1373, 1379-1380 (D.C. Cir. 1979).
Rather, "[an] agency, with like effect as in the case of
other orders, and in its sound discretion, may issue a
declaratory order to terminate a controversy or remove
uncertainty." 5 U.S.C. § 554(e) (emphasis added).
Of course, in exercising its discretion, an agency properly is
guided by policies underlying the article III case-or-controversy
requirement. A further pertinent concern is the institutional
role of-the adjudicatory body.4
In the article III context, jurisdiction on
the ground that a dispute is "capable of repetition, yet
evading review" commonly vests where (1) the challenged
action is too short in duration to be litigated fully prior to
its expiration and (2) there is a reasonable expectation that the
action complained of will be repeated. Honig v. Doe, 484
U.S. 305, 318-320, 333 (1988). Where the action has ceased for
the moment but there is a reasonable expectation that it will
recur, a controversy between the parties continues to exist and
article III is not violated. 6A J. Moore, J. Lucas & G. Grotheer,
oore's Federal Practice, par. 57.13 (2d ed. 1991). See
Leonardson v. City of East Lansing, 896 F.2d 190, 194 (6th
Cir. 1990); Shrader v. Granninqer, 870 F.2d 874, 877-878
(2d Cir. 1989); LaDuke v. Nelson, 762 F.2d 1318, 1322-1326
(9th Cir. 1985); Lynch v. Baxley, 744 F.2d 1452, 1455-1457
(11th Cir. l984).
I find these circumstances present in the
instant case. Respondent's "rolling year" time frame
ensures that any given "incident" will remain on a work
history for no longer than a one-year period. In the event of
employee "good behavior," the duration may be as short
as five months. Here, the incident challenged by Complainant
disappeared, as a function of the rolling year time frame, a full
two and one half months before the administrative hearing. The
challenged verbal warning thus expired far short of full
litigation.
Moreover, the action reasonably may be
expected to recur. Respondent uniformly implements a policy that
penalizes employees, like Complainant, who refuse work, when to
accept the assignment would violate DOT regulations. After
investigation, the Assistant Secretary found that a violation of
the STAA had occurred and issued an appropriate order. It
reasonably can be expected that Respondent will be subject to
similar proceedings in the future. See Brock v. Roadway
Express Inc., 481 U.S. 252, 258 (1987) (controversy between
trucking company and Labor Secretary, regarding
constitutionality of Secretary's procedures prior to
ordering complainant employee's preliminary reinstatement,
comes within "capable of repetition, yet evading
review" exception to actual case-and-controversy
requirement; appeal not mooted by Secretary's issuance of final
reinstatement order).
Under the burdens of proof and production in
STAA proceedings, Complainant first must make a prima facie
showing that statutorily-protected activity motivated
Respondent's decision to take adverse employment action. In
particular, Complainant must show that he engaged in protected
activity, that he was subject to adverse action, and that
Respondent was aware of the protected activity when it took the
adverse action. Complainant also must present evidence sufficient
to raise the inference that the protected activity was the likely
reason for the adverse action. See Roadway Exp. Inc. v.
Brock, 830 F.2d 179, 181 n.6 (llth Cir. 1987). Under the
STAA, an employee is protected if he "refuse[es] to operate
a vehicle when such operation constitutes a violation of any
Federal . . . regulations . . . applicable to commercial motor
vehicle safety . . . ." 49 U.S.C. app. § 2305(b).
Complainant made a prima facie showing.
Complainant is employed as a driver of commercial motor vehicles.
From Monday through Wednesday of each workweek, he drives local
runs in the Cincinnati, Ohio area. On Thursdays and Fridays, he
drives the long distance run between Cincinnati and Michigan. T.
66-69. On Tuesday, December 12, he was assigned to drive locally.
He refused that assignment because he had been instructed to rest
for 24 hours following the onset of debilitating physical
symptoms and because he had been given tranquilizing medication.
Operation of a commercial motor vehicle is prohibited "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." 49 C.F.R. § 392.3. Drivers also are
prohibited from being "on duty" while under the
influence of certain enumerated drugs and substances, e.g.,
amphetamines, narcotic drugs, and "[a]ny other substance, to
a degree which renders the driver incapable of safely operating a
motor vehicle." 49 C.F.R. § 392.4(a)(4). See 49
C.F.R. § 395.2 defining on duty time to include driving
time. The hospital's directive that Complainant should not drive
and that he should rest for 24 hours and consult a cardiologist
for follow-up monitoring is compelling evidence of Complainant's
incapacity. I find that Complainant would have violated the above
regulations had he reported to work on December 12 and that his
refusal to work constituted protected activity.
The remaining elements of a prima facie
showing also are present. Respondent unquestionably knew about
Complainant's protected activity, T. 48, 72-73, 79-81,
148-150, 193-194, when it took the adverse actions of classifying
Complainant's absence as an "incident" and issuing him
a "verbal warning." Under Respondent's absenteeism
policy, both actions advance an employee on the disciplinary
track and thus are "adverse."5 It is uncontroverted
that Respondent disciplined Complainant because he refused to
report to work and to perform his driving assignments on December
12.
Respondent may rebut Complainant's prima
facie showing by articulating a legitimate motivation for
the adverse action. Here, Respondent argues that it disciplined
Complainant because he "allowed himself to run afoul of its
[absenteeism] policy." Resp. Br. at 6. This articulation
does not suffice. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 255 (1981) (rebutting evidence must
raise genuine issue of fact; explanation must be legally
sufficient to justify judgment for defending party). Complainant
"ran afoul" of Respondent's policy because
he engaged in protected activity. A "legitimate"
motivation is by definition a legal one. Webster's New World
Dictionary 772 (3d College ed.). Respondent's resolve to punish
employees who refuse to violate DOT regulations is not a
"legitimate" motivation.
Independent statutory rights "cannot be
abridged by contract or otherwise waived . . . ."
Barrantine v. Arkansas-Best Freight Systems Inc., 450 U.S.
728, 740 (1981). Moreover, congressionally granted rights take
precedence over conflicting provision in a bargained employment
arrangement. See id. at 740-741. Accordingly,
Complainant does not forfeit his STAA protection as a condition
of his employment under Respondent's work rules.
Respondent having failed to rebut
Complainant's prima facie showing, Complainant has prevailed on
the merits of his complaint.
In finding that "Complainant failed to
rebut the presumption of no discrimination arising from the
resolution of Complainant's grievance in Respondent's
favor," R.D. and O. at 8, the ALJ applied an erroneous
standard. See 29 C.F.R. § 1978.113 (l990);
Barrentine v. Arkansas-Best Freight Systems, Inc., 450
U.S. at 742-746; Alexander v. Gardner-Denver Co., 415 U.S.
36, 56-59 (1974); Roadway Express, Inc. v. Brock, 830 F.2d
at 181-182; Consolidation Coal Co. v. Marshall, 663 F.2d
1211, 1218-1219 (3d Cir. 1981). The limited record evidence on
this issue in this case does not support deferral to the outcome
of the arbitration.
Accordingly, I find that Respondent violated
STAA Section 2305 in taking adverse employment action against
Complainant for refusing to operate a commercial motor vehicle,
when such operation would have violated Federal motor vehicle
safety regulations. Respondent is ordered to restore
Complainant's work history to eliminate any effects attributable
to the "incident/verbal warning" at issue.
SO ORDERED.
LYNN MARTIN
Washington, D.C.
1The paramedics
also had administered Valium en route to the hospital. T. 70-72,
Exh. GX-6. Valium is a tranquilizer which can cause drowsiness.
The Valium was administered to decrease Complainant's rapid heart
rate.
2Respondent
utilizes a "rolling year" time frame for determining
whether an employee's absence will result in disciplinary action.
For example, Respondent here considered
Complainant's attendance during the period from the December
12, 1989, absence retroactive to December 12, 1988. Accordingly,
as of December 12, 1990, the December 12, 1989, incident dropped
from inclusion in Complainant's rolling year work history.
3Discipline is
progressive. Four incidents will elicit a verbal warning; five
incidents -- a written warning; six incidents -- a written
warning and a one-day suspension without pay; seven incidents --
a written warning and a three-day suspension without pay; eight
incidents -- discharge.
4Increasing
certainty as to what activities are protected should encourage
employees in safety endeavors, a particular object in
enacting the STAA. Congress determined
Brock v. Roadway Express, Inc., 481 U.S. 252, 262 (1987),
citing remarks of Sen. Danforth and summary of proposed statute.
5"[D]iscipline suggests
punishment intended to control or to establish habits of self
control", Webster's New World Dictionary 1091 (3d College
ed.), which comports with the testimony of Respondent's
President/Chief Executive Officer that the absenteeism policy is
"corrective in nature." T. 175. By declaring the
initial three absences "incidents" and recording them
as such in an employee's work history, Respondent effectively
warns the employee that he is progressing toward a
"verbal" warning.
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Secretary of Labor
