DIVISION I -- OVERVIEW
Last updated December 19, 2007
- I. Overview
- A. Statutory/regulatory scheme
- B. Purposes
Congress passed the Surface Transportation Assistance Act in December 1982 and it was signed by the President and became effective on January 6, 1983. (Pub. L. 97-424, Title IV, 49 U.S.C. § 2301 et seq.)
Among other things, the Act provides for grants to the states for the development or implementation of programs for the enforcement of Federal safety standards for commercial motor vehicles and compatible state standards. The Act protects all employees from discharge, discipline, or discrimination for filing a complaint about commercial motor vehicle safety, testifying in a proceeding on such safety, or refusing to operate a commercial motor vehicle when operation would violate a Federal safety rule or when the employee reasonably believes it would result in serious injury to himself or others.
The Secretary of Labor is charged with receiving and investigating complaints of violations of this employee protection or "whistleblower" provision. Either the complainant or the employer is entitled to request a hearing on the record. The Secretary is directed to issue a final order within 120 days of the completion of the hearing, and may, if a violation is found, order reinstatement, back pay, compensatory damages, costs, expenses, and attorneys fees. 49 U.S.C. § 2305.
Nix v. Nehi-RC Bottling Company, Inc., 84-STA-1 (Sec'y July 13, 1984) (this was the first STAA whistleblower complaint).
[STAA Digest I A 1]
In Somerson v. Yellow Freight System, Inc. , 1998-STA-9 and 11 (ALJ Feb. 18, 1999), the ARB provides an up-to-date, straightforward, and lucid description of such general matters as the administrative-judicial process for STAA complaints, a complainant's obligation to establish his or her complaint with proven facts, and the relationship between DOT and DOL responsibilities under the STAA.
I.A.1. Overview of STAA
From: Martin v. Yellow Freight System, Inc., 91 Civ. 8370, 1992 U.S. Dist. LEXIS 7331, 1992 OSHD (CCH) P29,708 (S.D. NY May 18, 1992).
In addition to protecting an employee from discharge, discipline or discrimination for filing a complaint about safety or refusing to operate a vehicle in violation of Federal rules or because of apprehension of serious injury due to unsafe condition, 49 App. U.S.C. §§ 2305(a), (b), the statute provides an administrative remedy to employees who believe that they have been discharged in violation of the statute. Indeed, because protection of an employee in the trucking industry was considered so important by Congress, the elaborately structured scheme is oriented to preserving the status quo if the Secretary deems it necessary. For example, upon the filing of a complaint by an employee, Section 405 authorizes the Secretary of Labor to conduct a preliminary investigation in order to determine whether there is reasonable cause to believe that the complaint has merit. Id. § 2305(c)(2)(A). This task is delegated to the regional administrator of OSHA; during the investigation, the person named as the violator is given the opportunity to respond to the complaint. 29 C.F.R. § 1978.103. The Secretary, upon a finding of probable cause, must issue a preliminary order of abatement or reinstatement if the employee has been discharged. 49 App. U.S.C. § 2305(c)(2)(B).
The person alleged to have committed the violation has thirty days to file objections to the findings or the order and may request a hearing. Id. § 2305(c)(2)(A). If objections are filed, the case is litigated within the administrative channels of the Department of Labor. Pre- and post-trial procedures are set forth in the regulations promulgated pursuant to Section 405. See 29 C.F.R. 1978.100 et seq. If the violator has filed the objections, the Assistant Secretary of Labor is deemed to be the prosecuting party and the complainant is also a party. Id. § 1978.107. The order of reinstatement is not stayed while the hearing is pending, id. , and becomes effective immediately upon receipt of the notice by the violator. Id. § 1978.105(b). After the conclusion of the hearing, the Secretary must issue a final order within 120 days. At any time prior to the issuance of a final order by the Secretary, the parties may settle the dispute. See id. § 1978.111(d). In addition, if a settlement offer has been made by the violator that the Secretary deems to be fair and equitable, the Secretary may decline to assume the role of the prosecuting party. Id. § 1978.111(d)(3). The burden of prosecuting then falls upon the complainant. Id. § 1978.107(b).
An employee who files a complaint under Section 405 may also pursue arbitration remedies provided by a relevant collective bargaining agreement. Id. § 1978.112(a). In recognition of the national policy favoring voluntary resolution of disputes under procedures in collective bargaining agreements, when the omplainant is pursuing such a remedy, the Secretary or the Assistant Secretary may, in its discretion, postpone a determination of the section 405 complaint and defer to the results of that proceeding. Id. § 1978.112(a)(2), (3). Deferral to the outcome of the arbitration is warranted only if it is clear that those proceedings dealt adequately with all factual issues, that the proceedings were fair, regular, and free of procedural infirmities, and that the outcome of the proceedings was not repugnant to the purpose and policy of the Act. Id. § 1978.112(c).
Finally, Section 405 provides that the Secretary may file an enforcement action in district court against a person who has failed to comply with an order issued under subsection (c)(2). Id. § 2305(e). An appeal to the Court of Appeals from the Secretary's final order, which must be issued 120 days after a decision by the ALJ or after the preliminary order if no objections were filed, is available to any person adversely affected by a final order. Id. § 2305(d).
I.A.1. Public law and amendments
Public Law 97-424 originally designated the portion addressing commercial motor vehicle safety as Part A of Title IV of the Surface Transportation Assistance Act of 1982, 49 U.S.C. app. §§ 2301-2305. A recent amendment has added sections 407 and 408, 49 U.S.C. §§ 2306, 2307. Pub. L. No. 102- 240, Dec. 18, 1991. In addition to employee protection, the safety subchapter authorizes (1) State programs to enforce Federal commercial motor vehicle safety rules, regulations, standards, or orders, (2) grants to implement recommendations of the National Governors' Association pertaining to police accident reports for truck and bus accidents, and (3) an information clearinghouse and depository pertaining to State registration, licensing, and safety fitness of commercial motor vehicles, including data on vehicle inspections and out-of-service orders.
Killcrease v. S & S Sand and Gravel, Inc., 92- STA-30 (Sec'y Feb. 2, 1993).
I.A.1. Overview; enactment and purpose of STAA
From Nix v. Nehi-RC Bottling Co., Inc., 84-STA-1 (Sec'y July 13, 1984) (the first STAA decision by the Secretary).
Congress passed the Surface Transportation Assistance Act in December 1982, and it was signed by the President and became effective on January 6, 1983. (Pub. L. 97-424, Title IV., 49 U.S.C. § 2301 et seq.) Among other things, the Act provides for grants to the states for the development or implementation of programs for the enforcement of Federal safety standards for commercial motor vehicles and compatible state standards. The Act protects all employees from discharge, discipline, or discrimination for filing a complaint about commercial motor vehicle safety, testifying in a proceeding on such safety, or refusing to operate a commercial motor vehicle when operation would violate a Federal safety rule or when the employee reasonably believes it would result in serious injury to himself or others.
The Secretary of Labor is charged with receiving and investigating complaints of violations of this employee protection or "whistleblower" provision. Either the complainant or the employer is entitled to request a hearing on the record. The Secretary is directed to issue a final order within 120 days of the completion of the hearing, and may, if a violation is found, order reinstatement, back pay, compensatory damages, costs, expenses, and attorneys fees. (49 U.S.C. § 2305)
There is no improper combination of administrative functions in violation of 5 U.S.C. § 554(d) by the Assistant Secretary under the regulatory scheme for the employee protection provision of the STAA: the Assistant Secretary investigates STAA complaints and may prosecute them; the Solicitor represents the Assistant Secretary in these functions; the Secretary and Department ALJs serve as the adjudicators. The respondent had argued that the Assistant Secretary impermissibly investigates and prosecutes, and participates or advises in the decision.
The Secretary of Labor has delegated authority and assigned responsibility for Section 405 complaints to the Assistant Secretary of Labor for Occupational Safety and Health. Order 9- 83, 48 Fed. Reg. 35,736 (Aug. 5, 1983). Martin v. Yellow Freight System, Inc., 91 Civ. 8370, 1992 U.S. Dist. LEXIS 7331; 1992 OSHD (CCH) P29,708 (S.D. NY May 18, 1992).
[STAA Digest I A 3]
RETROACTIVE EFFECT OF AMENDMENTS TO THE STAA UNDER THE IMPLEMENTING RECOMMENDATIONS OF THE 9/11 COMMISSION ACT OF 2007; FEDERAL DISTRICT COURT JURISDICTION WHERE ARB DOES NOT ISSUE FINAL DECISION WITHIN 210 OF THE FILING OF THE COMPLAINT
In Elbert v. True Value Co. , No. 07-CV-03629 (D.Minn. Dec. 11, 2007) (case below ALJ No. 2005-STA-36), the Plaintiff filed an action in federal district court asserting that the court had original jurisdiction pursuant to 49 U.S.C. � 31105(c) because the ARB had not issued a final decision within 210 days after the filing of the complaint. The rule conferring jurisdiction on federal district courts where the ARB has not issued a final decision within 210 days after the filing of the complaint was a 2007 amendment to the STAA. See Implementing Recommendations of the 9/11 Commission Act of 2007, Pub. L. No. 110-53, § 1536, 121 Sta. 266, 464-67 (Aug. 3, 2007). The Plaintiff's STAA complaint was pending before the ARB when the STAA amendments at issue were signed into law by President Bush. The district court granted summary decision to the Defendant, finding that the STAA amendments were not retroactive.
Congress included section 405(b) in the Surface Transportation Assistance Act to insure that employees in the commercial motor transportation industry who make safety complaints, participate in STAA proceedings, or refuse to commit unsafe acts, do not suffer adverse employment consequences because of their actions. Roadway Express, Inc. v. Dole, 929 F.2d 1060 (5th Cir. 1991) (citing 128 Cong. Rec. 29192, 3251 (1982)).
I.B.1.and 2. Purposes of STAA
From Yellow Freight Systems, Inc. v. Reich, No. 93- 1205 (4th Cir. Oct. 29, 1993) (available at 1993 U.S. App. LEXIS 28378):
Congress passed the STAA in 1982 to combat the "increasing number of deaths, injuries, and property damage due to commercial motor vehicle accidents" on America's highways. Brock v. Roadway Express, Inc., 481 U.S. 252, 262, 95 L. Ed. 2d 239, 107 S. Ct. 1740 (1987) (quoting remarks of Sen. Danforth and summary of proposed statute at 128 Cong. Rec. 35209, 32510 (1982)); see also Lewis Grocer Co. v. Holloway, 874 F.2d 1009, 1011 (5th Cir. 1989) ("Congress enacted the STAA to promote safe interstate commerce of commercial motor vehicles.") The Act seeks to reduce unsafe driving by long haul truckers in two ways. First, it prohibits discipline of trucking employees who raise violations of commercial motor vehicle rules on the part of trucking companies. 49 U.S.C. app. § 2305(a). The Act recognizes that drivers and other employees are often in the best position to detect when an operation is not running safely, but that employees often may not report violations for fear of backlash from their employees. See Brock, 481 U.S. at 258; Yellow Freight Sys., Inc. v. Martin, 954 F.2d 353, 356 (6th Cir. 1992); Lewis Grocer, 874 F.2d at 1011.
Second, the Act encourages safer driving by prohibiting discipline of drivers who refuse to operate their vehicles under dangerous or illegal conditions. Specifically, the STAA forbids employers from discriminating "in any manner" against employees who refuse "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 when such 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 employee who "refuse to commit unsafe acts do not suffer adverse employment consequences because of their actions").
A heightened necessity for unrestricted channels of information exists in the surface transportation industry. Random inspections at various points throughout the United States uniformly revealed widespread safety violations, and the United States Supreme Court had specifically found that STAA section 405 was enacted specifically so that employees would report violations. Brock v. Roadway Express, Inc., 481 U.S. 252, 262 (1987).
Moyer v. Yellow Freight System, Inc., 89-STA-7 (Sec'y Sept. 27, 1990) (order denying motion to vacate and reopen).
[STAA Digest I.B.2.]
PURPOSE OF STAA; EXPOSURE OF VEHICLE SAFETY VIOLATIONS OF EMPLOYERS
In Quintero v. Coca Cola Bottling Co. of N. America , ARB No. 00-066, ALJ No. 2000-STA-31 (ARB Oct. 26, 2000), Respondent discovered that the medical certificate required by DOT regulation 49 C.F.R. 391.41(a) (physical qualification to drive a commercial motor vehicle) in Complainant's file had expired. Respondent advised Complainant of this deficiency, and he renewed the certificate. Respondent then directed Complainant to provide a medical certificate showing that he had been physically qualified to operate a commercial motor vehicle during the time that the certificate had expired. Complainant was unable to comply, and Respondent gave Complainant the option of either transferring to a non-driver position, or resigning and reapplying for a driving position at a later date. Complainant opted for the transfer.
The ARB adopted the ALJ's finding that Complainant had not engaged in protected activity. The Board wrote: "In our view, the STAA is not a shield that employees can use to immunize themselves against the consequences of their failure to adhere to motor vehicle safety regulations. Instead, the STAA, among other things, is intended to protect employees who expose the motor vehicle safety violations of their employers."
I. B. 2. To ensure the flow of information
In Yellow Freight System, Inc. v. Reich, No. 93- 3488 (6th Cir. June 24, 1994) (available at 1994 U.S. App. LEXIS 15585), the court quoted the following language from the Supreme Court decision in Brock v. Roadway Express, Inc., 481 U.S. 252, 95 L. Ed. 2d 239, 107 S. Ct. 1740 (1987), in regard to the effect and purpose of section 405 of the STAA:
Section 405 of the Surface Transportation Assistance Act of 1982, 96 Stat. 2157, 49 U.S.C. App. § 2305, protects employees in the commercial motor transportation industry from being discharged in retaliation for refusing to operate a motor vehicle that does not comply with applicable state and federal safety regulations or for filing complaints alleging such noncompliance.
Id. at 255.
The Sixth Circuit also quoted the following language:
Section 405 was enacted in 1983 to encourage employee reporting of noncompliance with safety regulations governing commercial motor vehicles. Congress recognized that employees in the transportation industry are often best able to detect safety violations and yet, because they may be threatened with discharge for cooperating with enforcement agencies, they need express protection against retaliation for reporting these violations. See, e.g., 128 Cong. Rec. 32698 (1982) (remarks of Sen. Percy); id., at 32509-32510 (remarks of Sen. Danforth). Section 405 protects employee "whistle-blowers" by forbidding discharge, discipline, or other forms of discrimination by the employer in response to an employee's complaining about or refusing to operate motor vehicles that do not meet the applicable safety standards. 49 U.S.C. App. §§ 2305(a), (b).
Id. at 258.
I.B.2. Purpose of STAA; ensure flow of information
From: Martin v. Yellow Freight System, Inc., 91 Civ. 8370, 1992 U.S. Dist. LEXIS 7331; 1992 OSHD (CCH) P29,708 (S.D. NY May 18, 1992).
Section 405 of the STAA was considered necessary to encourage "whistle-blowing" by employees. Senate Commerce Committee Section by Section Analysis of Title IV, S. 3044, Commercial Motor Vehicle Safety, 97th Cong., 2d Sess., 128 Cong. Rec. S 14028 (Dec. 7, 1982). The purpose of the statute is to ensure that the government's channels of information are not dried up by employer intimidation of prospective complainants and witnesses. [Citations omitted.] Through Section 405, Congress created a process which protects the employee from retaliation while determining whether the employee's claim is correct.
In STAA section 2305(e) cases, the Secretary seeks to vindicate private interests (the devastating financial consequences resulting from a retaliatory discharge) rather than public interests such as under NLRA § 10(1). Martin v. Yellow Freight System, Inc., 91 Civ. 8370, 1992 U.S. Dist. LEXIS 7331; 1992 OSHD (CCH) P29,708 (S.D. NY May 18, 1992).