Bad weather and other unsafe conditions

[Familyman]

I was going to post this in the FXF forum as a reply to the thread about central dispatch, anyway it really applies to all so I'm posting it here.

The STAA protects employees from retaliation for
reporting safety violations or refusing to operate a commercial motor vehicle because of safety

concerns.

(2) Under paragraph (1)(B)(ii) of this subsection, an employee's apprehension
of serious injury is reasonable only if a reasonable individual in the
circumstances then confronting the employee would conclude that the
unsafe condition establishes a real danger of accident, injury, or serious
impairment to health. To qualify for protection, the employee must have
sought from the employer, and been unable to obtain, correction of the
unsafe condition.
Employees are protected from retaliatory action by their employer for refusal to operate a
commercial vehicle under § 31105(a)(1)(B)(i) (the “actual violation” prong) if operating the
vehicle would violate relevant regulations. Under § 31105(a)(1)(B)(ii) (the “reasonable
apprehension” prong) an employee need only have a reasonable apprehension of serious injury
to himself or the public, based on the objective standard set out in § 31105(a)(2), for a refusal to

operate a commercial motor vehicle to be protected.

http://www.ca6.uscourts.gov/opinions...4a0122n-06.pdf

So if confronted with a dispatcher telling you to do what you feel is unsafe don't do it, you are afforded protection under the law.


FM

[Opie]

Actually the link that was posted was to the case of Eash v. Roadway, a case wherein I was the attorney for Larry Eash.

I am going to reprint an article that I wrote for a publication a couple of years ago on his issue.

See below.

Paul Taylor
Attorney at Law
Employment Lawyer Burnsville Minnesota Wrongful Termination Whistleblower Attorney

[Opie]

Winter is now in full swing and truck drivers will face snow-covered, icy roads throughout the Plains, the Northeast and the West. At times, they will face the decision of whether or not it is safe to drive. Of course, the driver’s decision may differ from his dispatcher’s decision. When this conflict arises it is generally the driver’s decision that will legally control who is right and who is wrong.

The United States Code of Federal Regulations [49 C.F.R. §392.14] provides in pertinent part as follows:

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. . . .

This regulation does not provide a clear test for when a driver shall discontinue operations due to bad weather.

The Surface Transportation Assistance Act (known as the ‘STAA”) prohibits an employer from disciplining or firing a commercial driver because that driver refuses to drive a commercial motor vehicle on the highways in violation of Federal safety regulations. The STAA also prohibits an employer from disciplining or firing a commercial driver because that driver refuses to operate a commercial vehicle when he has a “reasonable apprehension” or serious injury to himself or the public because of the vehicle’s unsafe condition.

When a driver claims that he has been wrongfully disciplined or fired in violation of the STAA, his case may be heard by officials of the U.S. Department of Labor. The Department of Labor has decided only a handful of cases where a driver has been fired for refusing to drive due to bad weather.

In Cleary v. Flint Ink, Corp. (1996), a driver refused to a dispatch scheduled to depart at midnight. On the morning of his scheduled departure, the driver saw the beginnings of a major snowstorm. He watched a televised weather report predicting heavy snowfall for the area of his scheduled run. The driver telephoned his supervisor at 8:15 a.m. and asked to have his run postponed. Not surprisingly the supervisor told the drive he could not delay his run but gave the driver the option to leave immediately. The driver refused to leave immediately and reiterated his refusal to leave at midnight. Ultimately the driver was fired for his refusal to drive.

The Secretary of Labor upheld the firing. While acknowledging that a driver is protected when he refuses to drive due to adverse weather conditions, the Secretary found that the driver’s refusal to drive in the Cleary case was not reasonable under the circumstances. In ruling for the employer the Secretary of Labor stated:

Given the evidence presented and the changing nature of the weather it was not reasonable to assume that the roads would be unnavigable sixteen hours after [the driver’s] decision not to drive. Cleary should have waited until later in the day to observe the progress of the storm and make his decision based upon the most recent information available.

In the case of Robinson v. Duff Truck Line, Inc. (1993), a motor carrier fired a driver because the driver did not even attempt to drive in what he claimed was bad weather. The carrier argued that the language in the regulations that says “the operation of the commercial motor vehicle shall be discontinued” when weather is sufficiently hazardous meant that the driver must at least start a run before refusing to drive due to hazardous weather. The driver, Robinson, testified that television stations issued weather warnings advising against driving on the highways which were on his route due to icy conditions. Based on this he refused to drive and the carrier fired him. The Secretary of Labor rejected the carrier’s argument that a driver must at least begin his run before he can refuse to drive due to bad weather stating that it would create an absurd situation of drivers being compelled to take their vehicles at least out of the terminal gate.

Eash v. Roadway Express, Inc. (2001) was a case before the U. S. Department of Labor wherein the employee, Larry Eash, refused a dispatch based on inclement weather. Eash was assigned to a bid for the employer between the employer’s terminal at Copley, OH and Pittsburgh, PA. When Eash woke on January 14, 1999, he saw sleet and rain mixed with snow outside his home. Weather reports on the local radio station indicated that freezing rain was moving east toward Wooster, OH. Eash observed weather reports on the television. A news report indicated that driving was dangerous in Western Pennsylvania and Eastern Ohio. Eash observed freezing rain outside his home. He continued to monitor television and radio weather reports which advised against travel due to snow and freezing rain.

Several times during the day that Eash was scheduled to work, he called the employer and attempted to be relieved of his work responsibilities due to bad weather. Eash advised the persons that he spoke with that he believed the weather conditions made driving dangerous. His employer ignored his requests to be relieved from work until the inclement weather conditions cleared.

Eash left his home in his personal vehicle and began the 20 plus mile drive to Roadway’s terminal at Copley, OH. As Eash attempted to drive to work, freezing rain accumulated on his windshield, window glass and outside mirrors. Eash could barely see the road ahead of him because of the accumulated ice on the windshield. He could not view the side mirrors on his car because of the accumulated ice. He lost control of his vehicle at one point after driving about six miles from his home. He then called Roadway and told the dispatcher on duty that he was not going to report to work because driving conditions were dangerous. Roadway issued a “Letter of Warning” to Eash for his “Failure to report to work after accepting a work call on 1/14/99 at 1955.”

In Eash an Administrative Law Judge of the Department of Labor found that Eash “failed to establish that the type of weather conditions existed that would have made it unsafe to operate a commercial motor vehicle on January 14, 1999.” However, the Judge found that Roadway had illegally disciplined Eash because “a reasonable person in [Eash’s] situation could have determined that a bona fide danger of accident or injury to his person existed and complainant had a reasonable apprehension of serious injury to himself or to the public because of the vehicles unsafe condition.” The judge ordered Roadway to remove from its files the warning letter that it issued to Eash for refusing to drive due to weather conditions.

From these cases we can discern several rules about when a driver can refuse to drive due to adverse weather conditions. First, a driver may refuse to start work if the weather is sufficiently hazardous at or near the time he is scheduled to begin as to make it unsafe to operate a commercial vehicle on the highways. Second, a driver cannot speculate unreasonably into the future regarding what the road conditions will be beyond a few hours. Third, a refusal to drive due to adverse road conditions must be reasonable. The refusal should be based on the driver’s personal observations weather reports from the radio and television, calls to the Department of Transportation or Highway Patrol, if possible, and information received from other drivers if such information is available. Additionally, the driver should be able to articulate for a Court the precise facts that led him to believe that it would have been unsafe for him to operate a commercial vehicle on the highways.

If an employer illegally fires or disciplines a driver for refusing to drive a commercial vehicle in dangerous weather, the driver can seek relief under the STAA. A driver must file a complaint with the federal Occupational Safety and Health Administration within 180 days after he receives notice of the illegal discipline. OSHA will investigate a complaint filed under the STAA and thereafter issue a decision. If any party objects within 30 days to OSHA’s decision, the case will be assigned to an Administrative Law Judge for consideration. The STAA provides broad relief to an employee who is successful in proving that he was illegally disciplined or fired. A successful claimant is entitled to reinstatement, expungement of his work record, back pay, other damages, attorney fees and legal costs.

Ultimately, the professional truck driver is the best judge of whether road conditions are so hazardous that he should not drive. He must act reasonably under the circumstances. If he acts reasonably in refusing a to drive due to dangerous weather conditions, and clearly conveys his reasons for refusing to drive to his employer, then the employer may not legally fire or discipline him for refusing to drive because of hazardous road conditions.

Paul Taylor
Attorney at Law
paul.taylor@truckersjusticecenter.com

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

[Apostolic]

I'm completing my 43rd year of driving for a living in upstate New York.
The bottom line when it comes to the safe operation of any motor vehicle.
Is the judgement of the one driving.
Dispatchers,or terminal managers sitting behind a desk,CAN NOT force any truck driver to go beyond,his,or her better judgment.
Anytime you fear managment,and feel you should do what they want regardless of what you feel is safe.
Than something negative happens along the way.
Do you think any manager will be on your side?
We know full well everything falls on us truckers.
So it should be totaly up to us making the choice of whats safe,and whats unsafe.
This is my opinion given all of my years of experience,and dealling with a lot of different managers.
When your a trucker working for any company that wants their goods moved,if you always do as your told,you are their hero,let something bad happen,they won't even want to know you.
Thats the trucking game,we drivers can go from a hero to a zero,with one bad judgment call on our part.

[Opie]

Just make sure you protect your backside. In other words, make sure your refusal is reasonable based on listening to weather reports or the radio, watching them on television, personal observations, etc.

It also may be wise to at least report at the terminal, and try to drive a few miles, turn around and come back. You should clearly convey to dispatch that you are refusing to drive because it would dangerous to operate a commercial vehicle on the highway. Refusing to drive because driving is slow is not legally protected.

One you have made a protected refusal to drive, due to weather, go out and get the next day's newspapers and save the articles concerning the weather, if you are able.

Paul Taylor
Truckers Justice Center
paul.taylor@truckersjusticecenter.com

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

[Familyman]

Thanks Opie,

Excellent info, who da thunk I would quote someones work who visits here, lol.

FM