The Different Types of STAA Cases

The Different Types of STAA Cases

Retaliation is the common element in all STAA cases. In order to seek relief under the Act, you must be able to show that the employer has taken some action against you, disciplinary or otherwise, in response to your motor carrier safety activity.

That said, there are a number of different types of STAA cases. This article will look at each of the most common types and examine how best to approach each one when documenting and filing an STAA complaint.  


Types of STAA Cases

The most common cases are:

1. Discipline for refusing to drive due to fatigue or illness.
2. Discipline for refusing to drive, or causing delays, due to weather.
3. Discipline for refusing to drive a mechanically unsafe vehicle, or equipment in
 violation of the federal motor carrier safety regulations.
4. Retaliation for raising safety concerns, pointing out unsafe equipment, etc.
5. Discipline or retaliation over running times.

All five types may involve drivers. The fourth type, raising safety or health concerns, may involve mechanics, clerical workers, yard switchers (if about trailers or road tractors) and possibly dock employees (poorly maintained or improperly loaded trailers).


Refusal to Drive Due to Fatigue or Illness

Drivers fired or otherwise disciplined for refusal to drive while fatigued can receive protection 
under the STAA. Protection however is contingent on a number of factors.


Case Study: Smith v. Yellow Freight

Columbus, Ohio, Yellow Freight driver Willie Smith had waited nearly 20 hours for a work call. When it finally came, he told management that he was too fatigued to drive safely and therefore could not accept the work assignment.

Management responded that “everyone is tired." Two days later they terminated Smith.

Smith's story will be familiar to many road drivers. Not being properly rested due to having to wait for a work call is a major cause of driver fatigue.

Smith's STAA case - which he won to the tune of some $400,000 in damages – is an excellent case study.

Yellow Freight management tried to argue that it was Smith's total work record, not just the one incident, that led to the discharge.

Smith had grappled with Yellow over the fatigue issue for some time. When too fatigued to continue driving safely, he would take a break and log it, on the bottom line, as a 
"safety break for a nap." Yellow wrote him up for delay of freight.

Smith also counseled other drivers to log off the board due to fatigue (when they were too tired to drive safely) instead of saying, as demanded by Yellow, that it was for illness.

Smith won his job back, plus back pay, benefits and legal fees. Yellow's costs ran to nearly a half million dollars.


Rights Under the Federal Motor Carrier Safety Regulations

Driver rights around refusal to drive while fatigued or ill are found in section 392.3 of the Federal Motor Carrier Regulations. this is the bible:

No driver shall operate a motor vehicle, and a motor carrier shall not require or permit 
a driver to operate a motor vehicle, 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. ( 1)

Rooted in this wording, and reinforced by case law over the years, is the idea that the driver has the responsibility - and the leeway - to decide when he or she is too fatigued to drive safely. And this is where conflict arises. Management refuses to accept the driver's judgment, orders the driver to work or else, and then discharges the driver if he or she continues to refuse,

So being able to back up your judgment is critical to success in many fatigue-related refusal cases.

Additionally, the Department of Labor and the courts have not interpreted the right to refuse to drive in as driver-friendly a way as they have the right to file complaints and testify about motor carrier safety or health. 

Note that section 392.3 does not prohibit all driving while fatigued but only refusals where the fatigue adversely affects the safe operation of a commercial motor vehicle.


Rights Under the STAA

The STAA expands and reinforces rights spelled out in motor carrier regulations. Section 3 1105 states that a driver cannot be fired, disciplined or discriminated against if the employee refuses 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 or;
(ii) the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle's unsafe condition.

So retaliation over refusal to drive because of fatigue violates two provisions of the STAA. Driving while fatigued would be a violation of federal motor carrier regulations. It could also put the employee or the public in danger of serious injury.


How to Invoke Your Right to Refuse

1. Explain why you are fatigued. According to the Department of Labor, merely saying you are tired is not enough. You must tell the employer why you are too fatigued to drive safely.

So keep notes in your notebook about the times of the day you have been sleeping (or not sleeping). An example would be if you are too tired to take a work call because you have been sleeping days until recently and are now driving days. Or that you could not sleep because of illness or due to some disruption in your house or neighborhood.

Give specific objective reasons, not just your personal opinions.

2. Don't speculate about the future. Although you may know that you will be too fatigued to drive in eight hours, or whatever amount of time, it is best to wait until a work call comes to tell the employer you are too fatigued to drive safely,

Courts look askance at someone who has anticipated fatigue or illness. While you may want to do what appears to be the right thing - giving your employer advance warning - this could actually come back to hurt you in the end.

3. Make it clear that you are willing to accept work when properly rested. Underscore the idea that you are not refusing work in general, but are willing to work when fatigue will not hamper your ability to drive safely

4. Keep a record of what was said, by whom and when, in a notebook, log, or diary.


Refusal Based on Illness

In a recent case (2) the ALJ held, based on prior decisions of the Secretary of Labor, that a refusal to drive because of illness is a protected activity under the STAA provided the illness is such that it impairs the driver's ability to drive safely.

Thus, when refusing to drive due to illness, you must be able to state that your ability to drive safely is impaired. It is not enough to say that you are not feeling well.

Give specific evidence. Tell management why you cannot drive safely. For example: 
"I have a fever and can't concentrate, so it would be dangerous for me to drive a commercial vehicle."

If possible, see your doctor and have him/her put you off work. Another strategy is to report for work. Have someone drive you over. Let management see what kind of condition you are in (if you are in visibly bad shape). Take your temperature and show it to management. Show them the sling on your arm.
The STAA does not prohibit an employer from establishing reasonable methods for assuring that a claimed illness is legitimate and serious enough to warrant a protected refusal to drive.(3) Nor does it prevent an employer from taking action against employees who feign illness.

Be familiar with your employer's policies around this issue. If they are unreasonable, challenge them through the grievance procedure or through collective action.

Finally, remember that you may have rights under the Family Medical Leave Act (FMLA), depending on the nature of your illness.


Refusal to Drive Due to Hazardous Weather Conditions

Documentation is the key to these cases. If you refuse to drive and are disciplined, make sure to get supporting information on the weather as soon as possible. This evidence can be invaluable later on.  

You can go to the library and copy articles on the weather, on a storm or on accidents or traffic tie-ups caused by storms. you can also go to the NOAA (National 
Oceanic and Atmospheric Administration) web site and download weather statistics for the airport nearest your home or terminal or whatever location is applicable. Their web site is www.noaa.gov Another method is to videotape weather channel reports.

If on the road and forced to stop driving, call the state police and get a verbal report from them on the weather and on traffic conditions. Jot down in your notebook who told you what, and when you placed the call.

See Long v. Roadway Express, at the end of this page, for a case study on refusal over bad weather.


Refusing Before Taking a Work Call

It is important to refuse as close as possible to the time of your trip. Don't refuse
twelve hours ahead. wait for the work call. Better yet, go to the terminal, if you can, and try to start the trip. Then say it is unsafe. You can still be protected under STAA without going to the terminal, but will have a stronger case if you go.


Refusal to Drive Due to Bad Maintenance or Equipment

There are numerous ways that STAA cases arise out of equipment and maintenance issues. Here are several examples:

- Employer retaliation for red-tagging equipment or complaining about poor
maintenance or bad equipment.

- Employer retaliation for refusing to drive unsafe equipment.

- Employer retaliation over driver insistence on performing careful pre-trip inspections.


Refusal to Drive Unsafe Equipment

Many cases have upheld drivers' right to refuse to drive unsafe equipment. However, very important conditions must be met:

1. The refusal has to be based on a reasonable fear that operation of the vehicle
would present a genuine safety hazard to the driver and/or members of the public.

2. The driver has to have asked the employer to correct the problem. 

"Reasonable fear," as interpreted by the DOL and the courts, means that a reasonable person in the same situation as you were in would have reached the same conclusion as you - that the unsafe condition establishes a real danger of accident, injury or serious impairment to health.(4)

If it later turns out that the vehicle was not actually unsafe, you are still protected if your belief is deemed to have been reasonable based on the objective facts and evidence available to you at the time you formed your belief. Have witnesses for backup.

You also must give the employer a chance to correct the problem. For example, if there is a bad tire say, "I will drive that truck when you replace the tire."


Refusal to Drive Because of Lack of Equipment

Protection for refusing to drive because of lack of equipment is not based on a "reasonable 
belief” of what is needed. STAA protection is triggered by pointing out the specific violation of motor carrier regulations.

Of course many common safety problems, like bad brakes, are violations of the regulations. In this case you are on solid ground. But if the problem is more unusual you should check the regulations, if possible, before refusing to drive due to missing equipment.

Suggestions: It is not a bad idea to have a single-use camera or other easy to use camera,
especially if you are dealing with a rash of equipment or maintenance problems. Some things, like broken springs or cracked windshields, will show up in a photo. "A picture 
is worth a thousand words."

Get witnesses. Another way to back up your claim is to call some drivers, or whoever is handy, over to look at a problem. Point out to them what is wrong. Or get a steward or a mechanic. Note the time and date and their names in your log. Many cases are won or lost because of proof problems. If you are trying to recover your job, the burden of proof will be on you.


Master Freight Contract Protection

Article 16 of the National Master Freight Agreement contains language giving drivers important safety and health protection. Keeping in mind that enforcement through the grievance procedure can be problematic, drivers should be aware of how to and make use of the protection in the contract.

Article 16, Section l states (in part):

The employer shall not require employees to take out on the streets or highways any vehicle that is not in a safe operating condition, including, but not limited to, equipment which is acknowledged as over-weight or not equipped with the safety appliances prescribed by law. It shall not be a violation of this Agreement or a basis for discipline where employees refuse to operate such equipment unless such refusal is unjustified.

This language basically reiterates the law. Unfortunately, many grievance panels have failed to enforce this language. So don't hesitate to file an STAA complaint in addition to your grievance.

(Safety provisions in the National Master Automobile Transporters Agreement appear under Article 30 and in the National Master United Parcel Service Agreement under Article 18.)


Retaliation for Raising Safety Concerns

As explained earlier, the STAA provides protection for a broad range of activity related to reporting unsafe conditions.  

Thus, the law's statement regarding "filing a complaint', can apply to anything from a verbal report to management, to a grievance, a report to the highway patrol or even counseling coworkers about motor carrier safety issues.

For example, if you file a truck safety grievance or red-tag equipment and then are disciplined by management. it could be the basis for an STAA complaint.

You are more likely to get protection under the STAA if you are clear, specific and up front about the nature of your truck safety concern. Vague grumbling about a problem 
may not bring you within protection of the law.  

You do not have to be overly technical to get protection. Stating your case in layman's terms is fine. And you may even be protected if your claim is found to be erroneous. A "reasonable” 
belief of a truck safety hazard can be enough to trigger protection.

Mechanics, yard-shifters, dockworkers and clerical workers all may be able to file STAA complaints of this nature provided the safety issue concerns a commercial vehicle of a gross weight of 10,000 lbs, or more.


Pre-Trip Inspection Disputes

Pre-trip inspections are a primary way for drivers to monitor truck safety. Some employers actively interfere with drivers' right to conduct pre-trip inspections. UPS, for example, currently insists that pre-trip inspections of doubles take no longer than thirty two minutes. And employers may use any number of tactics to get drivers to avoid or cut short inspections.

Federal Motor Carrier Regulations are clear on the driver's right to conduct pre-trip inspections:

392.7. Equipment, inspection and use. No motor vehicle shalt be driven unless the driver thereof shall have satisfied himself that the following parts and accessories are in good working order, nor shall any driver fail to use or make use of such parts and accessories when and as needed:

- Brakes (and trailer brake connections).
- Parking (hand) brake.
- Steering mechanism.
- Lighting devices and reflectors.
- Tires.
- Horn.
- Windshield wiper or wipers.
- Rear vision mirror or mirrors.
- Coupling devices.

The regulations state clearly that the driver "shall have satisfied himself”. While not a license to spend unlimited time on pre-trip inspections, this provides drivers with the leeway needed to determine for themselves how much time is needed to conduct an adequate inspection.

Employer harassment or discipline over pre-trip inspections could be the basis for an STAA complaint. As with any other STAA case, documentation is important. Keep a record of what happened, when and who was involved.

Several STAA cases are now being litigated over employer retaliation related to pre-trip 
inspection rights. Contact The Truckers Justice Project for an update.


Running Time Disputes

Employer harassment or retaliation over driver failure to meet company specified running times may be an STAA violation.

As with other STAA cases, good notes are critical. If you pull over and take a snooze because of fatigue, note the time and place and why you stopped. If there is bad traffic, note that, including how long you were held up. Likewise for bad weather, traffic accidents or other incidents.

Failing to challenge warning letters over running time can be a problem later on. Don't let them build a case against you, protest or grieve all warning letters. Keep records about what happened. In the event you ever face discharge you will have the ammunition needed to defend yourself.



Part 2 - Questions and Answers


Refusal and No Actual Violation

Q: What if I refuse to drive but find out later that my driving would not have violated federal motor carrier standards. Do I still get protection under STAA?

A: No. If your refusal is based upon a technical violation of a federal regulation (such as lights) you had better be right. So when citing technical violations of federal regulations as a reason for refusal to drive, be certain that driving would actually be in violation of federal standards. A good faith but mistaken belief does not win you protection from employer retaliation.

Remember, this is different from the standard used when you make truck safety complaints or testify about truck safety. In those cases you are protected even if it turns out later that there was no violation.

Also different is refusal to drive based on a reasonable fear of serious injury to yourself 
or the public because of a vehicle's unsafe condition. In this case you can receive protection under the STAA as long as your belief is found to have been a reasonable one (even if the vehicle is later found to have been safe).


Anticipated Fatigue

Q: Can I refuse to drive If I believe that before my assigned run is over I will be too fatigued to drive safely?

A: No. To rely on the federal fatigue rule as a basis for refusing to drive your fatigue must be actual and not merely anticipated. As the Secretary of Labor concluded in one case, 
"It would be impossible for [the driver] to prove that the decision he made on Saturday night, not to drive on Sunday night because of expected fatigue, was based on an actual violation of the motor carrier safety regulation."


Missing Work for a Safety Proceeding

Q: Am I protected if I have to miss work to testify in a proceeding related to truck safety?

A: Yes. STAA protection from retaliation for testifying about alleged violations extends to your right to miss work if necessary to testify. (5)


Bring Hazards to Employer's Attention

Q: What should I do before refusing to drive an unsafe vehicle?

A: You must try to bring the problem to the attention of your employer and ask them to correct or repair the unsafe condition. Only if those efforts are unsuccessful will you be protected if you then refuse to drive the truck. (6)


Part 3 - STAA Case File:
Refusal to Drive

The following selection of cases will shed some light on how to use the STAA_
Some losing cases are included because they are instructive on what can trip up
an STAA claim.


Refusal to Drive Because of Fatigue

In various cases, including Price v. E&M Express Company, Inc., 87-STA-4 (Nov.23, 1987), the Secretary has stated that refusal to drive based on fatigue is protected. See Smith v. Yellow Freight Inc., 91-STA-45 (1993), at the beginning this article.


Refusal to Drive Because of Illness

In the case of Danny Johnson v. Roadway Express, Inc., 99-STA-5 (July 21, 1999) the ALJ held, based upon prior decisions of the Secretary of Labor, that a refusal to drive because of illness is a protected activity under the STAA provided the illness is such that it impairs the driver's ability to drive safely. 

Johnson got pneumonia and was too ill to drive. He gave management a medical slip from a doctor, stating that he should be off work for a number of days. He had his girlfriend drive him to work to hand deliver the slip. 

Roadway fired him and then claimed that he did not have enough documentation of illness, even though they had no policy on how much was required.

The judge, however, found Johnson's evidence and the testimony of his girlfriend credible. And he pointed out that the STAA is designed to prevent exactly this kind of catch-22 where a driver has to choose between losing his job or driving while impaired.  

Johnson was reinstated and received more than $300,000 in damages, lost wages and attorney fees.


Refusal to Drive When in Pain or on Medication

In Palazzolo v.PST Vans, Inc., 92-STA-23 (Mar. 10. 1993) the Secretary found that a refusal to drive 2,000 miles to Oregon because the driver was in pain or was drowsy due to medication was protected activity. However the driver lost this case on the violation because he did not provide adequate notice to the employer of his condition.


Refusal to Drive Based on Hours of Service Violations
Refusing to drive when the contemplated run would cause the driver to violate the federal hours of service regulation is protected activity under the STM under STAA Section 405(b). Ass't Secy & Brown,,& v. Besco Steel Supply, 93-STA-30 (Jan.24, 1995). The ALJ stated that he found that Brown's remark to Besco's owners that he no longer would run Walker County (additional stops over hours) after a regular work day was sufficient to establish a prima facie case that he engaged in a protected refusal to drive under section (a)(l)(B)(i).

Brown lost, however, due in part to a finding that his firing could be interpreted as a voluntary quit.


Refusal to Drive Defective Vehicles

Thom v. Yellow Freight System, Inc., 93-STA-2 (Nov. 19, 1gg3). Driver John Thom was given a tractor that could not maintain a speed of 55-65 miles per hour. On slight inclines the tractor dropped to 35 mites per hour. Due to ruts on the interstate highway he had difficulty controlling fish-tailing at lower speeds and reasonably anticipated serious injury due to the unsafe condition.

Thom stopped and asked Yellow to send out a vendor to repair the truck. They refused and ordered him to continue to Rochester. When he asked that the truck be inspected first, he was relieved of duty and then fired subsequently. 

Thom was reinstated and awarded $75,000. The ALJ gave credit to Thom's witnesses, including a mechanic.

Roadway Express, Inc. v. Dole, 929 F.2d 1060 (5th Cir.1991). The Court of Appeals upheld the Secretary's finding of protected activity where equipment was rendered unsafe due to a hazardous ice storm.

Palmer v. western Truck Manpower, 85-STA-6 (Jan. t6, tggT), aff d, No. 92-70231 (8th Cir. Sept.27 1993). The Court of Appeals upheld as protected activity a refusal to operate an improperly loaded but otherwise sound tractor trailer. The driver was awarded over 
$88,000, plus benefits, interest and legal fees.


Refusal to Speed

In McGavock v. Elbar, 86-5TA-30 (July 9, 1986) the Secretary of Labor held an employee's stated refusal to drive over the speed limit in the future, in a situation where the carrier's policies required drivers to violate DOT speeding regulations, is protected activity. The ruling cited the STAA provision which prohibits an employer from discharging an employee for refusing to operate a motor vehicle "when such operation constitutes a violation of any federal rules, regulations' standards or orders applicable to commercial motor vehicle safety."
See, 49 C.F.R. 392.6.

McGavock was reinstated to his job and awarded back pay and benefits.


Refusal to Drive After an Altercation

In Logan v. United Parcel Service, 96-5TA-2 (Dec. 19, 1996) the Board held that a refusal to drive was protected because the complainant asked to be relieved from driving because he was clearly too distressed to drive and the employer was aware of it. Unfortunately, the ALJ ruled that UPS had other reasons for firing Logan and therefore did not order his reinstatement.


Refusal to Drive, and Right to Delay-Pay, Due to Hazardous Weather Conditions

In Long v. Roadway Express, Inc., 88-STA-31 (Sec'y Mar.9, 1990), Roadway was ordered to pay delay time to drivers who stopped driving during a storm wlth freezing rain. So this case is an example of how the definition of "retaliation" can be broader than discharge or suspension.

This case is also of interest because it involved a common problem faced by safety-conscious 
drivers. While seven drivers, including Archie Long and Gail Clark, decided it was too dangerous to continue driving, other Roadway drivers continued on their trips. Management of course pointed this out, arguing that if some drivers completed their trips safely then Long, Clark and the others could have done so as well.

It also shows that it is possible to prevail even when union officials work against your case. IBT Vice President Tyson Johnson, then a business agent, stated that the drivers would not have to be paid delay time because the employer had established that other drivers and other carriers had continued operating.



Footnotes:
1: 49 C. F. R. Sec. 392.3.
2: Danny Johnson v. Roadway Express, Inc., 99-STA-5 {July 21, 1999).
3: See Ciotto v. Sysco Focds co. of Philadelphia, 97-STA-30 (July 8, 1998). 
4 : 4 9 U.S.C. Sec. 31105(a ) (2 ).
5: Nolan v. AC Express and Moyer v. Yellow Freiqht, 93-STA-38.
6 : 4 9 U.S.C. Sec. 31105(a ) (2 ).