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Bergman v. Schneider National, 2004-STA-19 (ALJ Mar. 9, 2004)
U.S. Department of Labor | Office of Administrative Law Judges 50 Fremont Street, Suite 2100 San Francisco, CA 94105 (415) 744-6577 |
Issue Date: 09 March 2004
CASE NO.: 2004-STA-00019
In the Matter of:
KEVIN BERGMAN,
Complainant,
vs.
SCHNEIDER NATIONAL,
Respondent.
Appearances:
Kevin Bergman,
Pro se
Nan Bassett, Esquire,
For the Respondent
Before:
Jennifer Gee
Administrative Law Judge
This proceeding was initiated by the Complainant, Kevin Bergman, who asked for a hearing before the Office of Administrative Law Judges ("OALJ") under the employee protection provisions of the Surface Transportation Assistance Act of 1982 ("STAA"), 49 U.S.C. § 2305. The Complainant filed a complaint with the Occupational Safety and Health Administration ("OSHA") on November 24, 2003, alleging that the Respondent, Schneider National, violated Section 405 of the STAA by firing him when he refused to take a random drug test after completing a driving assignment. The Complainant objects to a December 15, 2003, decision by the Regional Administrator of OSHA which found that the Respondent had not violated the STAA and dismissed his complaint.
The OALJ has jurisdiction over this matter pursuant to 49 U.S.C. § 2305, 29 C.F.R. § 1978.105.
The underlying facts in this case are undisputed. On September 11, 2003, the Complainant returned to the Respondent's office after completing a driving assignment that required 82 hours1 of driving/on duty time. After he returned from the assignment, a management official informed the Complainant that he had been selected to take a random drug test and asked him to report for the test. The Respondent's random drug test policy requires the employee to transport himself or herself to the test. The Complainant declined to report for the test and informed management that he was too tired to drive himself to the test. Management then offered to have the Complainant driven to the drug test. The Complainant declined the offer. The Complainant was terminated after he refused to take the random drug test.
This matter was set for hearing in Salt Lake City, Utah, on February 12, 2004. On February 6, 2004, after a conference call with the Complainant and the Respondent's counsel, I issued an order vacating the hearing and ordering the Complainant to show cause why this matter should not be dismissed.
Section 405 of the STAA was enacted to encourage employees in the transportation industry to report noncompliance with applicable safety regulations governing commercial motor vehicles and to protect these "whistle-blowers" by forbidding the employer to discharge, or to take other adverse employment action, 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. Brock v. Roadway Express, Inc., 481 U.S. 250, 255; 107 S.Ct. 1740, 1744 (1987).
The Complainant's refusal to take a random drug test is not an activity protected under the STAA. Section 31105 of the STAA specifically prohibits retaliation against an employee who has filed a complaint related to a violation of a commercial motor vehicle safety regulation, standard, or order, or has testified or will testify in such a proceeding or an employee who refuses to operate a vehicle because operation of the vehicle violates a regulation, standard or order of the United States related to commercial motor vehicle safety or health or the employee has a reasonable apprehension of serious injury to the employee or public because of the vehicle's unsafe condition. 49 U.S.C. § 2305.
At one point, the Complainant asserted that his refusal to take the test was a protected activity because he was so exhausted from his driving assignment that it would have been dangerous for him to drive to the drug test. That danger was eliminated when the Respondent told the Complainant that he would be driven to the test.
The Complainant has argued that the Respondent asked him to take the drug test after he was already off duty, which violated the company's own random drug testing procedures. He argues that the failure to follow the random drug testing procedure is a failure to follow a motor vehicle safety standard or regulation, and, thus, a violation of the STAA. There is no merit to the Complainant's argument. A failure to follow an internal random drug testing procedure cannot be equated to a failure to follow a motor vehicle safety standard or regulation. Moreover, if the Respondent had allowed the Complainant to work after refusing to take the drug test, the Respondent would have been in violation of a motor vehicle safety regulation, specifically, 49 C.F.R. § 382.211 which prohibits an employer from permitting a driver who refuses to take a random drug test to "perform or continue to perform safety-sensitive functions."
Moreover, I am not persuaded that there was a risk of serious injury to the Complainant or the public if he had taken the test. The Respondent offered to have the Complainant driven to the test, which would have removed the danger of having a tired driver on the road. After the Complainant returned from the test, there can be no reasonable apprehension of danger from his driving home since he would have had some rest while being driven to and from the test.
Though the Complainant submitted numerous documents in response to my order to show cause, he offered no new argument or evidence that would establish that his refusal to take a random drug test was a protected activity. Thus, I find that the Complainant's refusal to take a random drug test on September 11, 2003, was not an activity protected by section 405 of the Surface Transportation Assistance Act of 1982.
It is ORDERED that the Complainant's November 24, 2003, complaint alleging that the Respondent violated § 405 of the Surface Transportation Assistance Act of 1982 be DISMISSED.
JENNIFER GEE
Administrative Law Judge
NOTICE: This Recommended Decision and Order and the administrative file in this matter will be forwarded for review by the Administrative Review Board, U.S. Department of Labor, Room S-4309, 200 Constitution Avenue, NW, Washington D.C. 20210. See 29 C.F.R. § 1978.109(a); 61 Fed. Reg. 19978 (1996)
1 The Regional Administrator's decision noted that this was a violation of Federal Motor Carrier Regulation 49 C.F.R. § 395.3(b)(2), but that is not an issue in this proceeding.