Roadway Exp., Inc. v. Dole
| Citation | 929 F.2d 1060 |
| Decision Date | 29 April 1991 |
| Docket Number | No. 89-4837,89-4837 |
| Parties | 118 Lab.Cas. P 10,721, 6 Indiv.Empl.Rts.Cas. 804, 15 O.S.H. Cas.(BNA) 1025, 1991 O.S.H.D. (CCH) P 29,349 ROADWAY EXPRESS, INC., Petitioner, v. Elizabeth DOLE, Secretary, U.S. Department of Labor, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
John F. McCarthy, Jr., M. Scott McDonald, Johnson, Bromberg & Leeds, Dallas, Tex., for petitioner.
Mary E. Gleaves, Ann Rosenthal, Robert P. Davis, Sol., U.S. Dept. of Labor, Washington, D.C., for respondent.
Paul Alan Levy, Public Citizen Litigation Group, Alan B. Morrison, Washington, D.C., for intervenor.
Petition for Review of an Order of the United States Department of Labor.
Before GOLDBERG, JOLLY, and WIENER, Circuit Judges.
Four tractor-trailer drivers, Archie Long, Gail Clark, Thomas Palmer, and Roger Schlapp, filed "whistle-blower" complaints with the Secretary of Labor, alleging that their employer, Roadway Express, Inc. ("Roadway"), discriminatorily withheld delay-time compensation in violation of Sec. 405(b) of the Surface Transportation Assistance Act of 1982 ("STAA"), 49 U.S.C. App. Sec. 2305 (1982). The discrimination allegedly stemmed from the employees' refusal to drive the company's trucks during a hazardous ice storm. The Secretary determined that Roadway's failure to compensate the drivers resulted in a per se violation of Sec. 405(b), notwithstanding Roadway's argument that the drivers were not discriminated against because they were not otherwise entitled to delay-time compensation under the terms of the applicable collective bargaining agreement. Although we reject the Secretary's argument that a per se violation occurred, we affirm her decision and order because we find substantial evidence to support her alternative holding that Roadway discriminated against the four drivers.
During the early morning hours of December 26, 1987, Roadway dispatched twelve of its tractor-trailer drivers to haul freight from its terminal in Irving, Texas, to Pecos, Texas, a distance of approximately 420 miles. Included among these drivers were the four complainants: Long, Clark, and Palmer, who were each pulling two short trailers, and Schlapp, who was pulling a single trailer loaded with hazardous materials. Approximately 115 miles west of Irving and 20 miles east of Eastland, Texas, all twelve drivers encountered hazardous driving conditions caused by freezing rain.
Long and seven other drivers reached Eastland first. They decided to stop in order to assess weather conditions farther west. Long called the dispatcher at Roadway's terminal in Irving and informed him that he and the others had decided to wait in Eastland until the weather improved. The dispatcher then authorized three 2-hour delays in succession. Finally, six hours later, Long called the dispatcher and told him that he was in a motel in Eastland and was going to stay there until the next morning. The dispatcher asked Long if he was taking himself "out of service," and Long responded, "Whatever."
Clark, Palmer, and Schlapp, who were traveling together in convoy, had maintained contact with the other drivers ahead of them through their citizen band radios. They also decided to stop in Eastland. Clark contacted the Roadway dispatcher and informed him that she and the other two employees could not safely continue driving to Pecos until the icy condition of the highway improved. The dispatcher asked Clark if she was voluntarily relieving herself of duty. She responded that she did not care what he called it, but that it was too unsafe to drive. Clark then told the other two employees that she had informed the dispatcher that they had elected to cease driving because of the dangerous condition of the highway.
These drivers were aware at this time that one of the twelve Roadway drivers, Louis Bohannon, had already passed through Eastland. Unlike the others, however, he had elected to continue driving to Pecos. Bohannon was the only one of Roadway's employees to reach Pecos without any layovers.
The next morning, the remaining eleven Roadway drivers left Eastland. Although the weather conditions had slightly improved, both Clark and Palmer were delayed again by the weather for approximately ninety minutes in Tye, Texas. All the eleven drivers reached Pecos on the second day.
Roadway paid all of its drivers their regular compensation for the 420-mile trip from Irving to Pecos. In addition, Roadway paid for the cost of the motels and some meals for the eleven drivers who chose to stay in Eastland. Roadway, however, refused to pay Long, Clark, Palmer, or Schlapp for their overnight layover in Eastland or Clark and Palmer for their ninety-minute layover in Tye because its dispatcher did not authorize the delays.
Long, Clark, Palmer, and Schlapp filed complaints with the Secretary of Labor, arguing that Roadway violated Sec. 405(b) of STAA when it failed to pay the drivers for the delays they incurred for refusing to operate their tractor-trailers during hazardous weather conditions. Section 405(b) states:
No person shall discharge, discipline, or in any manner discriminate against an employee with respect to the employee's compensation, terms, conditions, or privileges or employment 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, or because of the employee's reasonable apprehension of serious injury to himself or the public due to the unsafe condition of such equipment. The unsafe conditions causing the employee's apprehension of injury must be of such nature that a reasonable person, under the circumstances then confronting the employee, would conclude that there is a bona fide danger of an accident, injury, or serious impairment of health, resulting from the unsafe condition. In order to qualify for protection under this subsection, the employee must have sought from his employer, and have been unable to obtain, correction of the unsafe condition.
The Occupational Safety and Health Administration ("OSHA") found reasonable cause to believe that Roadway had violated the employee protection provision of STAA and ordered the company to pay the drivers the withheld compensation. Roadway objected to this finding and requested a hearing before a Department of Labor Administrative Law Judge ("ALJ").
At the conclusion of an evidentiary hearing on February 17, 1989, the ALJ found that Roadway did not discriminate against the drivers by refusing to pay for the layovers. There was no discrimination because such payments were not required for such layovers under Article 5, Section 4 of the collective bargaining agreement. Article 5, Section 4 states:
On breakdowns or impassable highways, employees on all runs shall be paid the minimum hourly rate for all time spent on such delays, commencing with the first hour or fraction thereof, but not to exceed more than eight (8) hours out of each twenty-four (24) hour period.
According to decisions of the Southern Multi-State Grievance Committee, a highway is "impassable" only when local law enforcement officials or the state highway patrol has closed it or when no driver has successfully negotiated the same route. The ALJ concluded that under this interpretation of the agreement, the route from Eastland to Pecos was not impassable. Thus, on May 16, 1989, the ALJ issued a Recommended Decision and Order, holding that Roadway did not discriminate against the drivers by refusing to pay them what they would not otherwise be entitled to receive under the collective bargaining agreement.
On September 15, 1989, the Secretary issued a Decision and Remand Order rejecting the ALJ's conclusion. She determined that Roadway had violated Sec. 405(b) because the company had refused to compensate the drivers when they exercised their rights under STAA to cease driving in unsafe conditions. She concluded that Roadway's asserted reason for refusing to authorize and pay for the delays, that such compensation was not required under the terms of the collective bargaining agreement, was a pretext for discrimination. She thus remanded the case to the ALJ for the calculation of damages.
On January 26, 1990, the ALJ issued a Recommended Decision and Order, awarding Long and Schlapp each the sum of $196.62 and Clark and Palmer the sum of $218.60 each. The Secretary issued a Final Decision and Order on March 9, 1990, adopting the ALJ's recommendations and ordering Roadway to pay the compensation withheld in violation of Sec. 405(b). Roadway filed a timely petition for review. See 49 U.S.C. App. Sec. 2305(d)(1).
We are authorized by statute to set aside the Secretary's decision if it constitutes an abuse of discretion or is unsupported by substantial evidence. 5 U.S.C. Sec. 706. Although we review the Secretary's decision, and not the ALJ's, 5 U.S.C. Sec. 557(b), we note that the Secretary is required to consider conclusive the ALJ's factual findings, if supported by substantial evidence. 29 C.F.R. Sec. 1978.109(c)(3).
Roadway continues to argue at this late stage of the proceedings that the drivers failed to establish a prima facie case of discrimination under Sec. 405(b). We decline Roadway's invitation to revisit the question whether the drivers made out a prima facie case. Because the case has been fully tried and we thus have a fully developed record before us, the focus of our inquiry is on the ultimate question of discrimination. See United States Postal Serv. Bd. v. Aikens, 460 U.S. 711, 714, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403 (1983).
In this respect, Roadway contends that the Secretary's decision should be reversed because the drivers were not entitled to delay-time pay under the collective bargaining agreement and thus suffered no adverse employment action resulting from their refusal to continue...
To continue reading
Request your trial
-
Passaic Valley Sewerage Com'rs v. U.S. Dept. of Labor
...the Secretary to issue its decision, however, and no allegation of prejudice from the delay is asserted. See Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1066-67 (5th Cir.1991) (failure to comply with regulatory time limits does not result in loss of jurisdiction unless statute expressly r......
-
Halliburton, Inc. v. Admin. Review Bd.
...its authority merely because it came to a different legal conclusion than did the Administrative Judge. See Roadway Exp., Inc. v. Dole, 929 F.2d 1060, 1066 (5th Cir.1991). We reject Halliburton's argument that the Review Board exceeded its authority by impermissibly overriding the Administr......
-
Martin v. Yellow Freight System, Inc.
...complainants and witnesses. Brock v. Roadway Express, 481 U.S. at 258, 107 S.Ct. at 1745 (plurality opinion); Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1065 (5th Cir. 1991); see Brock v. Roadway Express, 481 U.S. at 273, 107 S.Ct. at 1753 (Stevens, J., dissenting). Through Section 405, ......
-
Yellow Freight Systems, Inc. v. Reich
...operation would be "unsafe" and pose "a bona fide danger" of accident or injury. 49 U.S.C. app. § 2305(b); see Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1065 (5th Cir.1991) (stating that § 2305(b) ensures that employees who "refuse to commit unsafe acts do not suffer adverse employment ......