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USDOL/OALJ Reporter
Ass't Sec'y
& Vilanj v. Lee & Eastes Tank Lines, Inc., 95-
STA-36 (Sec'y Apr. 11, 1996)
DATE: April 11, 1996
CASE NO. 95-STA-36
IN THE MATTER OF
ASSISTANT SECRETARY OF LABOR
FOR OCCUPATIONAL SAFETY AND
HEALTH,
PROSECUTING PARTY,
and
FRANK VILANJ,
COMPLAINANT,
v.
LEE & EASTES TANK LINES, INC.,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
This case arises under Section 405, (the employee protection
provision) of the Surface Transportation Assistance Act of 1982
(STAA), 49 U.S.C.A. § 31105 (West 1994). Before me for
review is the Recommended Decision and Order (R. D. and O.)
issued on November 21, 1995 by the Administrative Law Judge
(ALJ). The ALJ held the Complainant, Frank Vilanj (Vilanj), had
failed to establish that Respondent, Lee and Eastes Tank Lines,
Inc. (L&E) had violated Section 405(b) of the STAA when L&E
discharged him for refusing to drive in the aftermath of a severe
snowstorm.
[PAGE 2]
The ALJ found conditions were not sufficiently dangerous enough
that Vilanj could not safely drive a tank truck carrying
hazardous materials. Consequently, the ALJ held Vilanj was not
engaged in protected activity at the time of his termination.
Following a thorough review of the record, including the
findings of the ALJ, I reject the conclusion that the complaint
lacks merit. Although I accept the factual findings of the ALJ
as being supported by substantial evidence, 29 C.F.R.
§ 1978.109(c)(3), I disagree with the inferences and
conclusions drawn from those facts by the ALJ. I therefore find
that Vilanj was engaged in protected activity at the time of his
termination. Vilanj is entitled to the protections provided by
STAA and the stipulated damages of $2,587.41, plus 8%
interest.[1]
BACKGROUND
L&E hired Vilanj in July of 1994 to drive tank trucks and
trailers transporting loads of hazardous materials such as
refined petroleum, gasoline, jet fuel and diesel fuel. Both
parties agreed Vilanj was an experienced driver who has often
driven in adverse weather conditions, including mountain passes
in eastern Oregon and Washington during winter storms. T.
30,51.[2] Complainant, Vilanj, testified he has taken driver
safety courses for various employers, including the Respondent,
L&E. T. 20.
On Sunday February 12, 1994 a severe snowstorm, described by
one newspaper as "packing dangerously high winds and record
breaking snow" hit Portland. CX-1. On Sunday afternoon, Vilanj
called L&E to notify them that he was snowed in at his home and
would not be reporting to work due to safety concerns caused by
the storm and its impact on the roads. T. 22. At that time he
was only able to leave a message with L&E's answering service.
T. 23. Later that afternoon he was called back by the dispatcher
and told he was needed at work. T. 23. Vilanj refused to
report, again citing safety concerns raised by the storm. Vilanj
stated that in "his opinion it was unsafe to be out there in that
truck." T. 24. Vilanj further testified that later that same
evening he was called again by L&E and was asked if he had
changed his mind about reporting to work. T. 24. He repeated
his refusal to drive under the conditions resulting from the
ongoing storm. Vilanj personally observed 3-4 inches of solid
ice and snow around his house and in his neighborhood. He said
that due to blowing, snow visibility was less than a block. T.
25. He also testified that he saw weather advisories on
television and heard police reports on his police scanner. The
police were asking motorists to stay off the roads if possible.
T. 24-26.
According to Vilanj, on Monday morning he was called by
[PAGE 3]
Aubrey Adams, L&E Operations Manager and asked if he intended to
report to work. Citing continued safety concerns, Vilanj
responded that he did not expect to report to work that day.
Vilanj testified he would not have been able to drive from his
house to the terminal in Portland because I-84 was "almost
completely shutdown from pile ups." Alternate routes and back
roads were also iced over. T. 31-32.
According to Adams' later testimony, he then offered to send
a cab to Vilanj's home to transport him to the office. T. 36.
Vilanj refused this and a later offer from Adams to personally
pick him up and show him the roads. Id. Vilanj testified
he refused both offers because he felt, based on what he was
seeing and hearing on television reports and the police scanner,
as well as personal observation of the conditions near his home,
that it would be dangerous to be transporting hazardous chemicals
on the roads. T. 33-37. Vilanj testified he heard over the
police scanner that police were directing all traffic to stay
away from bridges because they were iced up. This included "one
main bridge that he [Vilanj] would have to go over in order to
get to work." T. 26. Vilanj said he also saw television reports
that cars were sliding into trucks and other cars, and that
wreckers, even with chains on, were having trouble getting
around. Reports indicated people were abandoning their cars on
the roadways and walking off the Interstate. T. 24-26.
Vilanj relied on the testimony of Frank Coombs, the Director
of Safety at FTL Trucking Company in Portland. Coombs testified
the storm shut down most commercial trade in Portland on Sunday
and Monday. T. 8. Coombs personally drove and observed roads in
the Portland area on Monday, the 13th. Based on that experience,
as well reports from the state patrol and television advisories,
he did not allow any of his trucks on the road Monday morning.[3]
T. 14. By Monday afternoon and evening, Coombs did dispatch
trucks carrying non-hazardous materials on the road. But at no
time on Monday did Coombs dispatch trucks carrying hazardous
materials. T. 9. On cross examination, Coombs testified he
observed other commercial trucks running in the Portland area.
T. 14.
Vilanj submitted meteorological records prepared by the U.S.
Department of Commerce for the purpose of establishing that
visibility was limited by the storm. These records show that on
Sunday, February 12th, winds were as high as 37 miles per hour
(mph) and visibility fell to 1/4 of a mile. The data also shows
that on Monday, though the temperature was never above freezing
and the winds were as high as 29 mph, there was no additional
snow and visibility did not fall below 10 miles. CX6.
Complainant also introduced into evidence portions of various
newspaper reports describing the storm and containing photographs
[PAGE 4]
of stranded cars, buses and pedestrians. CX 1-6.
The U.S. Department of Labor investigator was Russell Hart.
Hart testified he attempted to obtain information on the weather
and road conditions. T. 46-48. Specifically, he contacted the
ultnomah Sheriff's Office and the Portland Police Department
regarding reports, only to find that no reports were kept. T.
53. He said he was also unable to obtain a tape from any
television station. Id. And when he contacted the
Company to inquire about other drivers on the road that day, he
found the company representative to be "next to uncooperative."
The Company was not forthcoming with the names of other drivers.
T. 46.
Adams, the Operations Manager at L&E, testified that in his
opinion the storm produced, if "not a normal Portland day," then
weather that occurs in Portland several times a year. T. 61. By
onday, he said the road conditions were improved. T. 60. He
based this on his personal experience driving Monday morning on
Interstate 5 from Seattle to Portland and on conversations with
other companies. Id. The major problem with the
roadways, according to Adams, was that a lot of shoppers were
caught on the road by the storm and were stranded over the
weekend. Adams said that by "Monday night and Tuesday it was
certainly a much different situation." Id. Adams
testified that other companies, including L&E's competitors and
some customers, were on the roadways on Monday. Id.
According to Adams, he called Vilanj back on Monday
afternoon to see if he had changed his mind about reporting to
work. At that time he informed Vilanj that road conditions had
improved and others had reported to work, including three drivers
from Eugene. T. 57. Adams said he even offered to personally
pick Vilanj up to show him the roads were safe. T. 36. When
Vilanj still refused citing his safety concern, Adams told Vilanj
unless he changed his position, he would be considered to have
voluntarily quit. T. 66.
On February 14 and 15 Vilanj, following standard L&E
procedures, called in for a work assignment. On both occasions
he was told no work was available. When Vilanj called on
February 16th, he learned from the dispatcher that he was
considered to have voluntarily quit.
DISCUSSION
Under the "refusal to drive" provision of the STAA, an
employer may not discharge an employee because:
(B) the employee refused to operate a vehicle because --
(i) the operation violates a regulation, standard or
order of the United States related to commercial
motor vehicle safety or health.
[PAGE 5]
49 § 31105(a)(1)(B)(West 1994). The relevant federal safety regulation provides:
Extreme caution in the operation of a motor
vehicle shall be exercised when hazardous
conditions, such as those caused by snow,
ice, sleet, fog, mist, rain, dust or smoke
adversely affect visibility or traction.
Speed shall be reduced when such conditions
exist. If conditions become sufficiently
dangerous, the operation of the vehicle shall
be discontinued and shall not be resumed
until the vehicle can be safely operated. . . .
49 C.F.R. § 392.14.
To invoke protection under 49 U.S.C.A. §
31105(a)(1)(B)(i), a Complainant must prove that an actual
violation would have occurred. Bryant v. Bob Evans
Transportation, Case No. 94-STA-24, Sec. Dec., Apr. 10, 1995,
slip op. at 12; Brame, slip op. at 3; Robinson v. Duff
Truck Line, Inc., Case No. 86-STA-3, Sec. Dec., Mar. 6, 1987,
slip op. at 12, n.7. Affirmed sub nom. Duff Truck
Line v. Brock No. 87-3324 (6th Cir. June 24, 1988). A
reasonable and good faith belief that it is unsafe to drive is
not enough. This section, by its clear terms, prohibits the
operation of a vehicle when the weather conditions are in
fact such that a vehicle cannot be operated safely.
See Robinson at 11.
However, the determination of whether such a condition
exists requires the exercise of subjective judgement. It is
ordinarily made on the basis of information available at the
time. Id. at 12. But the determination is not reserved
to the driver alone. It is also the duty of the carrier to
determine whether the vehicle can be safely operated under
existing conditions. Id.
The ALJ, looking at the record as a whole and weighing the
credibility of the witnesses, found for L&E. He relied heavily
on the testimony of Adams, L&E's Operations Manager. In
particular, the ALJ relied on Adams' testimony that he personally
drove from Seattle to Portland on Monday morning, inspected the
roads and observed other commercial vehicles on the road. The
ALJ credited Adams' testimony that other drivers were able to
complete runs on Monday afternoon. The fact that Vilanj's
witness, Coombs, dispatched trucks on Monday afternoon was also
relied upon by the ALJ. R. D. and O. 7.
The fact Adams safely drove his car on Interstate 5 from
Seattle to Portland on Monday does not show that Vilanj could
safely drive a tanker truck carrying hazardous materials through
[PAGE 6]
city streets and hills. Vilanj, who both parties agreed was an
experienced driver, testified that snow and ice make city streets
more hazardous than even mountain passes on the Interstates
because they are more congested with inexperienced drivers,
stranded cars, as well as pedestrians. T. 42-43.
Adams testified that he spoke with other companies and
observed their trucks on the road. T. 57. But the only witness
from another trucking company to testify was Coombs. Coombs
testified that after personally observing the roads, both the
Interstates and the side streets, listening to reports from the
State Patrol, and observing weather advisories on television, he
did not dispatch any of his trucks carrying hazardous material on
onday. So Coombs' testimony supports Vilanj's position.
Little weight can be given to Adams' testimony that other
drivers at L&E came to work and made their deliveries on Monday.
T. 57. None of them testified. The record does not show their
level of experience or if their delivery routes were comparable
to Vilanj's. More importantly, the record does not show what
obstacles they encountered, including how much pressure the
Company placed on them to go to work.[4]
I also find several inconsistencies between Adams' testimony
and other evidence in the record. For example, Adams testified
the company did not coerce employees to come to work. T. 60.
But in fact Adams clearly attempted to coerce Vilanj. He
followed through with his threat to consider Vilanj to have
voluntarily quit for exercising his independent judgement as to
the safety of driving in the aftermath of a snowstorm. Second,
Adams testified that the snowstorm was of the severity that
typically occurs in Portland winters. T. 61. But newspapers (CX
4) and other evidence described it as the biggest storm in
twenty-five years. Additionally, Adams gave the clear impression
that all drivers working for the Company, except Vilanj, reported
to work on Monday. T. 57. But on cross examination he admitted
five or six drivers did not report to work. T. 62. Finally, the
record shows that L&E made repeated attempts to get Vilanj to
work on Sunday, even though it now concedes that driving
conditions were unsafe that day. T. 61.
In Robinson the driver claimed he was terminated for
refusing to drive in snow and icy conditions. In successfully
arguing that the conditions were in fact unsafe, the Complainant
presented evidence that as an experienced driver familiar with
the roads and his equipment, he judged the roads unsafe. As
Vilanj has done here, the Complainant in Robinson
supported his belief with testimony by other drivers familiar
with the conditions, weather advisories from television, police
reports and meteorological data. Robinson, id. at
19-20.
Additionally, in the present case the collective bargaining
[PAGE 7]
agreement (CBA) between L&E and the union addresses the issue of
who decides when it is safe to drive. T. 80. The section titled
Emergency Procedures reads, "in case of icy weather, fog,
or excessive rain, you (the driver) are the best judge as to the
seriousness of the situation and you must decide when it is safe
to proceed." Id. In light of the facts in this case, I
agree with L&E's own CBA that the driver was "the best judge as
to the seriousness of the situation" and that his decision that
it was unsafe to proceed was justified.
For all these reasons I find that Vilanj submitted
sufficient evidence to prevail. Vilanj was engaged in protected
activity when he refused to drive. I order Lee and Eastes to pay
Vilanj the stipulated amount of $2,587.41 plus 8% interest.
See T. 5.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] The regulation found at 29 C.F.R. § 1978.109(c)
provides that a final decision and order will be issued by the
Secretary under the STAA within 120 days after issuance of the
decision and order of the ALJ. In the normal course of events,
that period would have expired in this case on March 20, 1996.
In the interim since the ALJ's decision was issued on November
21, 1995, however, operations within the Department of Labor have
been suspended, as the result of a lack of Congressional funding,
on two occasions, for a total of 17 days. In addition, Federal
offices located in the Washington, D.C. area were closed on four
days, January 7, 8, 9 and 11, 1996, because of the blizzard
conditions then existing. Inasmuch as the purpose of the 120 day
provision is to ensure expeditious action by this Department on
the processing of STAA complaints, see Brock v. Roadway
Express, Inc., 481 U.S. 252 (1987), and that purpose has been
served to the extent possible, the period provided by Section
1978.109(c) has thus been tolled and this decision is being
issued within the proper time frame. See Chevron U.S.A. Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837
(1984) (addressing deference owed agency's interpretation of
statute that it is mandated to administer); Bechtel Const. Co.
v. Secretary of Labor, 50 F.3d 926, 932 (11th Cir.
1995)(discussing deference due agency's reasonable interpretation
of statute under Chevron); Yellow Freight System, Inc. v.
artin, 954 F.2d 353, 357 (6th Cir. 1992)(discussing
deference due Secretary in construing Section 405 of the STAA if
the interpretation is reasonable, consistent with the statutory
mandate, and persuasive); see also Roadway Express, Inc. v.
Dole, 929 F.2d 1060, 1066-67. . . continued
(5th Cir. 1991)(rejecting employer's argument that 120 day
provision is jurisdictional); see generally Pauley v.
BethEnergy Mines, Inc., 501 U.S. 680 (1991)(addressing
statutory program being administered by both the Department of
Labor and the Social Security Administration).
[2] T refers to the typewritten transcript of the hearing
before the ALJ. CX refers to the complainant's exhibits admitted
in that hearing.
[3] Coombs described the potential danger resulting from an
accident by a truck carrying hazardous materials of the type
Vilanj transported. Coombs testified "if you spill a load of
gasoline, you are not only posing a hazard to the environment,
but you are posing a potential fire and explosion that can
eventually lead to a catastrophe." T. 17.
[4] It is undisputed that Adams first threatened and then
followed through with his threat to consider Vilanj to have
voluntarily quit because he did not report to work on Monday.
There was additional testimony suggesting L&E (or at least Adams)
was very concerned about protecting the account Vilanj was to
work, which L&E held, lost and recently regained. T. 59, 78-80.
