Yellow Freight System, Inc. v. Reich

• Citation: 27 F.3d 1133
• Decision Date: 24 June 1994
• Docket Number: No. 93-3488,93-3488
• Parties: , 128 Lab.Cas. P 11,128, 9 IER Cases 1035, 1994 O.S.H.D. (CCH) P 30,482 YELLOW FREIGHT SYSTEM, INC., Petitioner, v. Robert B. REICH, Secretary of Labor; and Willie W. Smith, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 1133

27 F.3d 1133

63 USLW 2079, 128 Lab.Cas. P 11,128,

9 IER Cases 1035,

1994 O.S.H.D. (CCH) P 30,482

YELLOW FREIGHT SYSTEM, INC., Petitioner, v. Robert B. REICH, Secretary of Labor; and Willie W. Smith Respondents.

No. 93-3488.

United States Court of Appeals, Sixth Circuit.

Argued April 18, 1994.

Decided June 24, 1994.

John B. Gamble, Jr. (briefed), Michael C. Towers, Roger K. Quillen (argued and briefed), Deborah C. Craytor, Fisher & Phillips, Atlanta, GA, for Yellow Freight System, Inc.

Ann Rosenthal, Bruce Justh, Jennifer U. Toth (argued and briefed), U.S. Dept. of Labor, Officer of the Solicitor, Washington, DC, Michael G. Connors, Office of U.S. Department of Labor, Regional Adm'r, Chicago, IL, for Robert Reich.

Phillip L. Harmon (briefed), Worthington, OH, for Willie W. Smith.

Before: KENNEDY, NELSON, Circuit Judges; and LIVELY, Senior Circuit Judge.

LIVELY, Senior Circuit Judge.

Yellow Freight petitions for review of a decision of the Secretary of Labor finding that Yellow Freight violated section 405 of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C.App. Sec. 2305 (1988), by discharging over-the-road driver Willie Smith for making unscheduled rest stops when fatigued. Section 405(a) makes it unlawful to discharge, discipline, or discriminate against an employee because he or she files a complaint "relating to a violation of a commercial motor vehicle safety rule [or] regulation ..." Section 405(b) prevents an employer from discharging, disciplining, or discriminating against an employee "for refusing to operate a vehicle when such operation constitutes a violation of any Federal rules [or] regulations ... applicable to commercial motor vehicle safety...."

In his decision the Secretary discussed the evidence and each party's arguments and concluded that the administrative law judge (ALJ) who conducted the hearing on Smith's complaint correctly found that Yellow Freight violated section 405. We agree with this conclusion. Accordingly, we affirm the Secretary's decision and order.

I.

Willie W. Smith, a truck driver with 26 years' experience, was hired as an "extra board" driver by Yellow Freight on February 6, 1988. An extra board driver has no scheduled route, but is dispatched to drive various routes on a day to day basis. Yellow Freight terminated Smith on November 6, 1989, following a disciplinary hearing, allegedly because of a poor work record evidenced by several reported incidents occurring between February 17, 1989, and November 1, 1989.

The three most controversial incidents involved Smith's refusal to drive while fatigued. The first of these occurred on August 2, 1989, when Smith pulled over shortly past midnight to take an hour and fifteen minute nap. Smith claimed that he had been driving for almost nine hours when he felt tired and stopped. He did not inform the dispatcher of this break, as is required by company work rules, but did note the stop in his travel log. Yellow Freight issued Smith a warning letter for "delayed freight," which threatened more severe disciplinary action if "a like offense occurs in the future." Smith filed a grievance letter with the company, arguing that his actions were protected by 49 C.F.R. Sec. 392.3, which prevents a driver from operating a truck when his or her ability or alertness is so impaired by reason of illness or fatigue as to make it unsafe to begin or continue to operate a commercial vehicle. Yellow Freight did not respond to Smith's protest.

Yellow Freight sent a similar warning letter to Smith after he stopped to nap for forty-five minutes at 1:00 a.m. on the morning of September 23, 1989. Smith had been up for twenty hours and driving for eight when he stopped. He again failed to inform the dispatcher of this break, and again protested Yellow Freight's letter under 49 C.F.R. Sec. 392.3.

Yellow Freight also reprimanded Smith after he refused a dispatch on October 17, 1989, because he was too tired to drive. Smith called in that day for a dispatch at 3 o'clock in the morning. He waited the entire day, and called in twice more. However, Yellow Freight did not get back to Smith until 8:00 p.m., after he had been awake for seventeen hours. Smith testified that he was too fatigued to accept a dispatch and knew he would be disciplined if he drove that day and Smith received several other warnings from Yellow Freight related to his duties as a union steward, which required time consuming counseling sessions with fellow drivers. In his capacity as a steward, Smith was known to encourage fellow drivers to file grievances against Yellow Freight when they felt it had violated federal regulations. Although Yellow Freight permitted union activities at company terminals, it suspected that Smith was logging work hours improperly when performing union functions. Smith allegedly was logging 45 minutes for DOT mandated safety checks, a procedure that normally takes 15-30 minutes. Yellow Freight surmised that Smith was using the additional 15 minutes to talk about union issues with fellow drivers, and asked Smith to discuss company regulations with one of its managers. When Smith refused, the company issued a disciplinary notice. Similarly, Smith received a warning letter for "log falsification" after Yellow Freight accused him of logging 15 minutes too much driving time when he was actually talking to drivers, not working.

had to make a stop for fatigue. On October 18, Yellow Freight issued Smith a warning letter for refusing work. Smith again protested, arguing that Yellow Freight was coercing him to drive while fatigued in violation of Department of Transportation (DOT) safety regulations.

Yellow Freight issued two more "delay of freight" warnings when, after receiving a dispatch, Smith stayed in the terminal counseling drivers on union issues. Smith responded by filing a grievance for harassment based on his race (African-American) and union status with the state grievance committee. The committee ruled in Smith's favor, finding that union stewards are allowed to conduct business in the terminal for an unlimited amount of time.

Later that year, Smith and two other drivers received an "excessive absenteeism" warning for spending a week away from work while participating in a union sponsored event at Yellow Freight's Columbus terminal. The union failed to follow company rules, which require it to provide written notice forty-eight hours before a driver's absence for union activities. After top union officials contacted Yellow Freight, it agreed to rescind Smith's co-worker's warning letters. Yellow Freight did not revoke Smith's letter, however.

Yellow Freight sent various other warning letters to Smith. He received one for not eating lunch while exchanging trailers at a designated post and stopping for lunch two hours later instead. Yellow Freight sent two more letters when Smith's beeper was broken and Yellow Freight could not reach him for dispatch. Smith received a disciplinary "coaching session" after hitting a mailbox when leaving an Ohio terminal. Smith repaired the mailbox and there was no damage to Yellow Freight's truck and no expense to the company.

Yellow Freight discharged Smith after he received a speeding ticket in West Virginia in June, 1989. Smith was traveling 76 miles per hour in a 65 mile per hour zone. After refusing to sign the ticket because he thought it was an admission of guilt, Smith was taken to the police station and his truck was impounded. Smith eventually pled guilty to traveling 74 miles per hour, and paid a $5 fine; Yellow Freight had to pay a $75 towing fee to get the truck out of the impound lot. Yellow Freight investigated the matter because its truck engines are governed to run at a maximum of 62 miles per hour. The company concluded that to go 76 miles per hour, Smith had either to take the truck out of gear while going down hill, or allow the weight of the truck to push it past the governed speed. Smith filed a grievance protesting his discharge and the Ohio Joint State Committee, after a hearing, reduced the discharge to a three week suspension without pay.

II.

On November 3, 1989, Yellow Freight held a formal disciplinary hearing where it reviewed all of the disciplinary actions taken against Smith and decided to discharge him. On April 27, 1990, Smith filed a complaint with the Secretary of Labor alleging that Yellow Freight violated sections 405(a) and (b) of the STAA.

A.

The matter was referred to an ALJ who conducted hearings in which both parties presented witnesses and documentary evidence. In his "Partial Recommended Decision" the ALJ concluded that Smith had made out a prima facie case of violations, that Yellow Freight had offered non-discriminatory reasons for discharging Smith, and that on the whole record Smith had demonstrated by a preponderance of the evidence that Yellow Freight violated Sec. 405 by discharging him for exercising his right to take breaks from driving when fatigued and in retaliation for counseling fellow employees about their rights under various laws and regulations.

The ALJ reviewed Smith's entire work record as shown by exhibits and testimony. He concluded that Yellow Freight would not have fired Smith for the damaged mailbox, the broken beeper, or the episodes in which he acted for the union. Rather, the ALJ found that Yellow Freight discharged Smith because of fatigue-related stops and refusal to accept a dispatch.

The ALJ, in a clear credibility finding, rejected Yellow Freight's claim that it discharged Smith for violating a company rule requiring drivers to report delays at the first opportunity. Smith admittedly did not report the late-night stops for naps on August 2 and September 23, 1989, though he did enter the stops in his driver's log. Yellow Freight sent warning letters to Smith on August 7 and September 26 stating that Smith "delayed freight" by taking extra breaks on August 2 and September 23. Neither letter referred...