OSHA orders reinstatement of Memphis truck driver

In a decision issued on February 23, 2011, the United States Department of Labor's Occupational Safety and Health Administration (OSHA), ordered a Memphis-based towing company to reinstate a commercial driver, William Beecher. OSHA found that the employer unlawfully fired Beecher because he refused to drive a transport recovery vehicle that did not comply with DOT regulations. In Beecher v. United Auto Recovery and Memphis Auto Auction, OSHA also ordered Beecher's former employer to pay him back pay in excess of $38,000, emotional distress damages of $20,000, punitive damages of $40,000 and more than $10,000 in attorney fees.

On February 5, 2009, Beecher refused to drive a tow truck because the vehicle had a severe coolant leak which he had previously noted on numerous daily vehicle inspection reports submitted to the employer. An outside vendor for the employer had noted on a work order that the vehicle was "not driveable." It appeared to Beecher that the truck also had a blown head gasket. OSHA found that if Beecher had driven the truck, he would have violated 49 C.F.R. § 396.7(a). Although the employer claimed it offered Beecher an alternative vehicle to drive, a 4900 four-car hauler, Beecher did not have a license allow him to drive that larger vehicle. OSHA found that Beecher's refusal to drive the larger vehicle was legally protected because he would have otherwise violated 49 C.F.R. § 383.23(a).

OSHA found that an award of damages for emotional distress was appropriate because Beecher's discharge caused him to fall into "a deep depression" and that he and his family "have suffered mental anguish due to this financial stress." OSHA also held that punitive damages were warranted because of United Auto Delivery and Recovery and Memphis Auto Auctions' "reckless disregard for the law and complete indifference to [Beecher's] rights."

Beecher brought his claim under the employee protection provisions of the Surface Transportation Assistance Act, 49 U.S.C. § 31105, which prohibits retaliation against commercial drivers because they have filed safety-related complaints or because they have refused to drive in violation of a commercial vehicle safety regulations.

Beecher was represented by Paul O. Taylor of Truckers Justice Center, a law firm handling employment-related claims for commercial drivers based in Burnsville, MN. Mr. Taylor may be reached at 651-454-5800, or visit: www.truckersjusticecenter.com

JUDGE RULES DRIVER WAS ILLEGALLY FIRED FOR REFUSING TO HAUL OVERWEIGHT LOAD

In a decision issued on February 11, 2011, a Department of Labor Administrative Law Judge Patrick Rosenow has found that H. H. Williams Trucking, Inc. of Greeley, CO unlawfully retaliated against trucker J. R. Hildebrand because he refused to transport a shipment of meat in excess of the 80,000 pound legal limitation provided for under federal and Wyoming law.

In Hildebrand v. H. H. Williams Trucking, Inc., Case No. 2010-STA-56, Judge Rosenow held that Mr. Hildebrand's refusal to drive with his loaded tractor-trailer set at 80,360 was protected under the employee protection provisions of the Surface Transportation Assistant Act ("STAA").

The Judge noted that it was undisputed that, even though Hildebrand would drive on State Highway until he reached I-80, he would have still exceeded 80,000 pounds once he entered I-80 in Wyoming. Judge Rosenow stated as follows:

The record is clear that when Complainant took the rig to the scales for the first time, the reported weight was 80,360 pounds. There was testimony that the scale may have been within calibrated tolerances and still report a weight that was slightly more or less than the actual weight. Nevertheless, the preponderance of the evidence is that the rig weighed 80,360 pounds. Similarly, there was some conflict as to the correct weight limitations on non- interstate highways and the routing Complainant was supposed to take to I-80. Nonetheless, given a starting overage of 360 pounds, the burn rate of the truck, and the mileage to Cheyenne, the preponderance of the evidence in the record establishes that had Complainant continued with the initial load, he would have more likely than not been operating on I-80 in excess of 80,000, in violation of the regulation. In fact, Howard Williams conceded in his candid and credible testimony that Complainant would not have been under 80,000 by the time he reached I-80. However, Mr. Williams added that he did not see that as a violation, because the truck scale manned by Commercial Vehicle Enforcement will give some leeway, even though the weight is slightly over.

***

While Mr. Williams testimony may have stated a rational position and accurate assessment of industry practice, it does not reflect applicable law.

Although Williams Trucking claimed it fired Mr. Hildebrand for failing to communicate, Judge Rosenow found that Hildebrand was fired in retaliation for his legally-protected refusal to drive. The Judge found support for this in Williams Trucking's position statement to OSHA in which it stated that drivers should take loads as long as they do not exceed 800 pounds overweight. It also stated to OSHA that if Hildebrand called dispatch, he would have been told to go with the 390 pounds of excess weight and that the employer would pay any fines.

Judge Rosenow ordered Williams Trucking to reinstate Mr. Hildebrand, pay him back pay, additional compensatory damages of $6,000 and punitive damages of $10,000.

Hildebrand's claim was brought under the STAA provision prohibiting retaliation against drivers because they have filed safety-related complaints with the employer or government, or because they have refused to drive in violation of a commercial vehicle safety regulation.

Paul O. Taylor
Attorney
Truckers Justice Center
900 West 128th Street, Suite 104
Burnsville, MN 55337
Tel. No. 651-454-5800
www.truckersjusticecenter.com

*** NOTHING IN THIS POST SHOULD BE CONSTRUED AS CREATING AN ATTORNEY-CLIENT RELATIONSHIP ***

The Truckers Justice Center at the Law Office of Taylor & Associates and whistleblower attorney Paul Taylor has been helping truck drivers with their employment-related problems for more than 20 years. Mr. Taylor aggressively seeks justice for workers who have suffered at the hands of unethical companies. He has brought successful claims against some of the largest trucking companies in the United States. To learn more about your rights as a commercial truck driver visit the Truckers Justice Center website www.truckersjusticecenter.com

Weather is terrible, but dispatch tells you to drive.

I have written about the subject of your legal protection when you refuse to drive in bad weather several times in the past. However, I need to write about this subject again because winter 2010-2011 has been one of those seasons where one winter storm is followed by another.

The employee protection provisions of the Surface Transportation Assistance Act ("STAA") protect commercial drivers from retaliation because they have refused to drive in violation of a commercial vehicle safety regulation. The STAA also protects drivers from retaliation because they have refused to drive based upon an objectively reasonable apprehension (concern) of serious injury. In order to be protected a driver must be able to prove either (a) a violation of a commercial vehicle safety regulation would have occurred but for the refusal; or (b) that a reasonable driver with similar experience and under similar circumstances would have believed that driving was dangerous.

The Federal Motor Carrier Safety Regulations state as follows at 49 C.F.R. § 392.14:

Hazardous conditions; extreme caution.
Extreme caution in the operation of a commercial 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 commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated. . . .

49 C.F.R. § 396.7(a) states as follows:

Sec. 396.7 Unsafe operations forbidden.
(a) General. A motor vehicle shall not be operated in such a condition as to likely cause an accident or a breakdown of the vehicle.

In several cases the Department of Labor (DOT does not have jurisdiction over these claims), has found a refusal to drive in hazardous weather conditions to be protected under the STAA. See, [u]Robinson v. Duff Truck Line, Inc.[/quote], 1986-STA-3 (Sec’y Mar. 6, 1987), and Eash v. Roadway Express, Inc., 2000-STA-47 (ARB June 27, 2003).

In Duff Truck Line, Inc., Robinson was scheduled to drive on his regular bid from Louisville, KY to Lima, OH. It rained throughout the afternoon that day and began to snow about 3:00 or 4:00 p.m. Television stations warned against driving on highways north of Louisville. The employer argued that other drivers had successfully completed their dispatches through bad weather without incident. The Secretary of Labor found that hazardous weather conditions existed and that Robinson had engaged in a protected activity by refusing to drive in violation of 49 C.F.R. § 392.14.

In finding that Robinson’s apprehension of serious injury was reasonable, the Secretary of Labor relied on the following factors:

1. Robinson observed weather and road conditions around his house;
2. Robinson heard weather warnings advising against driving on the highways he would have had to take;
3. Robinson was familiar with the roads, having driven his run five days a week, including in ice and snow;
4. Robinson knew the driving problems presented by driving a commercial vehicle on icy and snow roads.

In order to be protected under the STAA, A driver must be acting reasonably in determining weather and road conditions before refusing to drive due to bad weather. Here are some tips to follow:

A. Monitor Weather Reports on Radio and Television;
B. Use various Internet sites to assess conditions (download the reports for use as evidence);
C. Contact other drivers who may have driven through the poor weather conditions, or who may also be assessing conditions. The truck stop lounge may be a good place to start.
D. Contact government officials such as State Patrol or State DOT to obtain their advice.
E. Contact your employer to determine whether other drivers have reported concerning driving conditions.

Remember - Just because other drivers successfully reach their destinations does not mean the driving was safe. Moreover, the Federal Department of Transportation has issued an advisory indicating that it is your call to make as to whether or not driving is safe. The advisory states as follows:

392.14 Hazardous Conditions; Extreme Caution.
Question 1: Who makes the determination, the driver or carrier, that conditions are sufficiently dangerous to warrant discontinuing operation of a CMV [commercial motor vehicle]?

Guidance: Under this section, the driver is clearly responsible for the safe operation of the vehicle and the decision to cease operation because of hazardous conditions.

Once you have made the determination not to drive, you need to clearly communicate to the employer the basis for your work refusal. Use of the Qual-Comm or PeopleNet system followed by a telephone call usually is best. Use a camera to photograph the message that you send.

Tell the dispatcher that you believe that it is unsafe to drive at the present time. Tell him what you have done to assess driving conditions. Tell him you have spoken with other drivers, watched weather reports on television and monitored weather reports on the Internet in the direction of your travel. Be as specific as possible. For example, if the Ohio DOT has issued an advisory against all travel in Ohio, and you are scheduled to drive through Ohio, tell dispatch "I was monitoring the Internet and saw where Ohio DOT is advising against all travel tonight in Ohio." You could also add (if true), "I was in the lounge at the TA here in Cleveland and watching The Weather Channel. The announcer said that roads were icy on I-80, and I the news showed photos of tractor-trailers in the ditches."

It is also important that you give the carrier options. Tell your dispatcher that you will drive when conditions improve enough to make driving safe. Be respectful at all times, even if the dispatcher is not respectful toward you.

Finally, it is important that you keep good documentation. Retain copies of weather reports, if possible. Photograph your Qual-Comm communications with dispatch. You may even want to consider keeping a diary to note the times you made telephone calls to your employer and to summarize what you told the employer. This will help you prove your case in the event you are fired in retaliation for a protected work refusal.

Paul O. Taylor
Truckers Justice Center
900 West 128th Street, Suite 104
Burnsville, MN 55337
(651) 454-5800

www.truckersjusticecenter.com

NOTHING IN THIS POST SHOULD BE CONSTRUED AS CREATING AN ATTORNEY CLIENT RELATIONSHIP.