The Surface Transportation Assistance Act (STAA) protects drivers' rights to enforce truck safety by making it illegal for a company to discipline, discharge or discriminate against an employee for making a vehicle safety complaint or refusing to operate an unsafe vehicle.
With any law, we need to know the extents and limits of our rights and the Do's and Don'ts of enforcement.
Many activities can trigger protection under the STAA, including, complaining to management about truck safety, filing a grievance about vehicle safety, advising other drivers about DOT regulations, discipline or retaliation over running times, refusing to drive or delays because of bad weather, or refusing to drive in violation of posted speed limits.
Refusing to Drive Unsafe Equipment
Many cases have upheld drivers' right to refuse to drive unsafe equipment. However, two very important conditions must be met:
- The refusal has to be based on a "reasonable apprehension" that operation of the vehicle would present a genuine safety hazard to the driver and/or members of the public.
- The driver has to have asked the employer to correct the problem.
"Reasonable apprehension," as interpreted by the DOL and the courts, means that a reasonable person in the same situation would reach the same conclusion—namely, that the unsafe condition establishes a real danger of accident, injury or serious impairment to health.
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.
You must also give the company 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."
Violations of Federal Motor Carrier Regulations
STAA protection is also triggered if operating the vehicle would result in an actual violation of a DOT regulation (a cracked brake pad, for example). Again, you must make the company aware of the hazard and give them a chance to fix the problem before refusing to drive.
This is an important protection, but it should not be used lightly. If you refuse to drive based only on a technical violation of a federal regulation (such as a faulty marker light) you are only protected if operating the truck would actually violate a motor carrier safety standard, regulation or statute.
A good faith mistake about federal regulations does not win you protection from discipline unless you also had a "reasonable fear" of a genuine hazard. That may or may not apply to technical violations.
You can and should report violations for repairs—and insist that repairs be made. But refusing to drive is a serious matter and should not be taken lightly.
If you have doubts about the severity of a safety problem, you may want to take the truck out for a very short drive (unless the hazard presents an imminent danger) to gather more evidence and demonstrate a good faith effort to operate the vehicle.
Important Contract Language
Article 16 of the National Master Freight Agreement addresses safety issues:
"Employer shall not require employees to take out on the streets or highways any vehicle that is not in safe operating condition, including but not limited to equipment that is acknowledged to be overweight or not equipped with the safety appliances prescribed by law."
The National Master UPS Agreement contains language giving drivers important safety and health protection. Article 18 states:
"In no event shall an employee be required to operate a vehicle/equipment that is unsafe or in violation of any federal, state or local rules, regulations, standards or orders applicable to equipment or commercial motor vehicles."
Do's and Dont's
- Report the safety problem. You must bring up the problem and ask the company to fix it. If the company refuses to fix it, talk to a steward or union representative.
- Be specific: You are more likely to get protection under the STAA if you are clear, specific and up front about the nature of the truck safety concern. State that the problem is a violation of DOT regulations (if relevant) and why you feel it represents a genuine safety hazard.
- Have a witness. Have a witness present when you tell the company that the problem is a genuine safety hazard and that you will operate the truck when it is corrected.
- Document the problem: Take a picture of the problem with a camera or cell phone if you can. Show the problem to a witness.
- Keep a paper trail. Write notes on exactly what happened while the incident is fresh in your memory.
Attorney Paul Taylor of the Truckers' Justice Center has provided many Teamster drivers with expert legal advice and assistance on truck safety rights and violations. Contact him at paul.taylor [at] truckersjusticecenter.com or call 651-454-5800.
Taylor was one of the authors of the STAA Handbook: How to use the Surface Transportation Assistance Act to Enforce Truck Safety and Protect Your Job.
Click here to purchase the STAA Handbook.
Teamsters are stepping up to provide essential services for our neighbors and communities. And we’re uniting to protect our health and safety and win economic security in a time of crisis.Read more
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” of 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 (DOL). The DOL 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 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 driver he could not delay his run, but gave him the option to leave immediately. The driver refused 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 16 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.
Sleet, Rain and Snow
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 between Copley,Ohio and Pittsburgh. When Eash woke on Jan. 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,Ohio. A television 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,Ohio. As he attempted to drive to work, freezing rain accumulated on his windshield, window glass and outside mirrors; he 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, and lost control of his vehicle at one point after driving about six miles from 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 19:55.”
An Administrative Law Judge of the DOL 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 Jan. 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.
When You Can Refuse To Drive
From these cases we can discern several rules about when a driver can refuse to drive due to adverse weather conditions.
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.
A driver cannot speculate unreasonably into the future regarding what the road conditions will be beyond a few hours.
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 O. Taylor is an attorney with the Truckers Justice Center in St. Paul, Minnesota. He can be reached at 651-454-5800.
Want to know more? Get the STAA Handbook from TDU.
Under its record-keeping rules, OSHA requires that employers track and report injuries and illnesses in the workplace. In February 2003 employers will for the first time be posting summary reports (OSHA Form 300-As) that are based on new record-keeping rules put in place last year. Look for these reports on the bulletin board in your workplace starting in February.
Workplace activists, stewards and health and safety committees can use these injury and illness reports to track safety problems in the workplace. The information can also be used to defend grievances or prepare proposals for bargaining. The summaries can be particularly helpful in larger workplaces, where it can be difficult to get a good picture of health and safety problems and trends.
If your workplace has any kind of safety incentive (bonus or bingo programs) policy or discipline policy (such as points for accidents) it could be well worth your time to review the 300-A summaries. These employer policies tend to discourage reporting of illnesses and injuries. The 300-A can be used as evidence to show that the policies are having this illegal dampening effect.
Is Your Employer Covered By the Rules?
Any employer with ten or more employees must keep and post the reports. There are exemptions for certain “low hazard” industries, but very few Teamster employers would qualify.
What Injuries/Illnesses Does Your Employer Have to Record?
Employers have to record all new cases of work-related injuries and illnesses if they involve:
- Restricted work or transfer to another job.
- Days away from work.
- Medical treatment beyond first aid.
- Loss of consciousness.
- A significant injury or illness that has been diagnosed by a physician or other licensed health care professional.
Changes Under the New Rule
The rule sets out situations under which injuries do not have to be recorded, such as someone getting injured in a vehicle accident in a company parking lot while commuting to or from work.
The new rule drops a requirement that all illnesses be recorded, regardless of whether they result in lost time or job transfer. While this is negative, the new rule does state that any “significant” illness must be recorded if a licensed medical provider has diagnosed it. This would include work-related cancer, bone fractures and lung diseases such as silicosis.
The rule does specify certain cases, such as ergonomic problems, that must be indicated separately. This will help track these serious problems. (However there is a delay on this requirement until 2004).
How Have the Forms Changed?
- The 300 Log — kept by the employer throughout the year and used to come up with the 300-A summaries — asks where injuries or illnesses occurred in the workplace (rather than asking for the department in which the injured employee usually works).
- The 300 Log now requires that employees check one of seven boxes to categorize an injury/illness (rather than dividing the form between injuries and illnesses as was done under the old 200 Logs). The categories are:
- musculoskeletal disorder (torn rotator cuff, carpal tunnel syndrome, low back pain, etc.).
- skin disorder
- respiratory condition
- hearing loss
- all other illnesses
Hide and Seek
Many employers are prone to under-reporting injuries and illnesses. It is important to compare what your employer enters on the 300-A reports with information gathered from other sources, such as a rank and file workplace survey.
It is a violation of OSHA regulations to fail to report injuries and illnesses accurately. If your employer is not reporting correctly you can file a complaint with OSHA.
Access to Information
In addition to posting the 300-A Summary in February, employers must provide copies of other materials as set out below. Under the new rules time limits for providing information have been set. The new rules also provide privacy for cases involving HIV, sexual assault and tuberculosis.
- Employers must provide copies of OSHA 300 Logs by the end of the next business day. Those who have a right to request copies of logs include workers and former workers, their personal representatives and union representatives.
- Employers must provide copies of Form 301 Incident Reports — filled out each time there is an incident — by the end of the next business day to workers, former workers or personal representatives.
- Employers must provide copies of Form 301 Incident Reports to union representatives within seven calendar days. They may remove personal information about the employee(s) involved.
- Copies of all reports indicated above must be provided free of charge the first time requested.
Employers must retain injury and illness reporting records for a period of five years.
How to Make the Most of Record-Keeping Rules and Rights
The 300 Logs are helpful, but not a foolproof tool. Workers and local unions who use other workplace health and safety strategies will be in the best position to make use of them. Here are some suggestions.
- Get your local to track health and safety grievances throughout the year. Refer back to them when reviewing the 300-A Summary or the Logs. And/or use 300 Log statistics (if accurate) to back up grievances when they arise.
- Challenge employer tricks that discourage the reporting of injuries and illnesses. Bonus programs, bingo or lotteries that reward workers for not reporting injuries should be fought just as hard as accident “point” systems and other disciplinary polices that discourage workers from reporting injuries. Fight these through bargaining (the union has a right to bargain over these policies, even when the contract is not up) and through organizing.
- Organize worker health and safety surveys. A confidential survey that is organized to get maximum participation is an excellent way to get more detailed information on workplace illness and injuries. Compare your results with the employer’s 300 Log reports.
- Compare the 300-A Summary with the 300 Logs and the Incident Reports. Look for inconsistencies or missing information.
- During OSHA workplace inspections, point out problems with the 300 Logs to OSHA inspectors.
May 15, 2015: The 2014 financial report on the Central States Pension Fund shows that the fund’s money manager – Northern Trust -- performed rather poorly last year, causing the fund to get a sub-par return of 6.86% on investments. The fund’s assets declined to $17.9 billion.
Despite losses in 2014, the fund still has net growth over the past six years, since the end of 2008 when the fund had $17.3 billion in assets. It was during the 2008 financial meltdown, caused in large part by Goldman Sachs, that the fund lost $9.5 billion. Goldman Sachs was managing most of the Central States assets at that time.
The Hidden Truth
The 2014 Special Counsel Report details at length many of the fund’s problems and its policies, but in 24 pages it fails to mention one word about the biggest disaster inflicted on the fund: the Hoffa-Hall deal to let UPS pull out of the fund.
These simple facts illustrate the magnitude of that disaster: The financial and analytical report on page 3 projects employer contributions of $635 million for 2015. But if UPS were still contributing to the fund, it would contribute an additional $800 million, more than doubling the income! (This assumes that UPS would be contributing at the same rate as ABF, $342 per week. $342 x 52 x 45,000 = $800.3 million.)
This single disaster, costing the fund $800 million per year over shadows any other problem the fund has experienced.
Unfortunately, the Hoffa-Hall administration is continuing to undermine the fund. The report details on page 20 the attempt by the Kroger Co and the IBT let Kroger pull-out of the Fund without even paying the withdrawal liability, and the fund’s refusal to accept this sell-out deal.
The 2014 financial report was yesterday turned over to the attorney for TDU members who previously sued the fund to make information available to members.
February 20, 2012: Employers are trying to push rising healthcare costs onto workers and their families.
Teamsters speak out on company tactics to look out for in contract negotiations—and what you can do to protect your benefits.
Is your employer asking you to pay for healthcare?
You’re not alone. With the economy in recession and healthcare costs on the rise, employers are increasingly trying to shift the cost of healthcare onto workers.
TDU talked to experienced Teamster bargainers about common employer tactics to watch out for—and what you can do to defend your benefits.
A Foot in the Door
Management may just be trying to get their foot in the door by getting members to agree to pay for a small part of their monthly premium—maybe starting in the last year of the contract.
They may even sweeten the pot by reimbursing members for the premium the first year.
Proceed with caution. Management’s goal is to get a foot in the door. You can bet they’ll demand that you pay even more in the next contract—and every contract after that.
“We refused outright when management asked us to pay five percent of the medical plan,” said Local 805 steward Jose Arrocho.
“If we let that happen it would open the door to bigger and bigger increases. Next time we’d be discussing how much more employees would contribute. We put our foot down.”
Stick With a Union Plan
Many Teamster members are already in a union health and welfare fund. But your company may try to tempt you into a company plan they promise is more affordable.
Look out for the bait-and-switch, says Local 805 President Sandy Pope.
“Private insurance companies will offer you a cheaper plan the first year, then whack you with higher costs in the second or third year,” Pope warns.
“Stick with a union plan,” Pope says. “For the same benefit coverage, union plans are about 20 percent cheaper than company plans, because they pay cash, control costs better, and are nonprofit.”
High Deductible Plans
Many companies are pushing “cheap” company plans with high deductibles. Read the fine print.
Management tried to switch Teamsters at Sodexo in New York to a cheap company plan.
The local did its homework and warned members they would pay hundreds of dollars out-of-pocket for family coverage, and a deductible of more than a thousand dollars.
Members said No Way and kept their Teamster benefits.
Employers are demanding caps on how much they will pay toward healthcare premiums in a company plan.
Caps are dangerous, because members get stuck with the bill when premiums skyrocket.
Defending Your Benefits
“Bargaining over healthcare can be hard, but it’s also one of the best issues to unite members,” says Stefan Ostrach, a long-time negotiator with Oregon Local 206.
That’s what happened last year at United Airlines. Hoffa and the airline wanted mechanics to ratify a contract that would have terminated their medical plan at the end of 2012, to be replaced with a new plan, perhaps with large co-premiums to pay.
The mechanics voted the proposal down and sent their negotiators back to the table—and won an agreement that protects their healthcare for the life of the agreement.
December 22, 2011: The long-awaited final rule on revised hours of service has been released, keeping the current 11-hour daily driving limit but cutting by 12 hours the maximum number of hours a truck driver can work within a week.
In addition, truck drivers cannot drive after working eight hours without first taking a break of at least 30 minutes. Drivers can take the 30-minute break whenever they need rest during the eight-hour window.
FMCSA says it will continue to conduct data analysis and research to further examine any risks associated with the 11 hours of driving time.
Click here to read more from Truckinginfo.com
March 16, 2010: In a decision issued on March 15, 2010, Department of Labor Judge Daniel Leland ruled that New Prime, Inc. (also known as "Prime") illegally fired Cynthia Ferguson because she refused to continue operating a commercial vehicle in hazardous weather.
In Ferguson v. New Prime, Inc., Ferguson, a leased driver for Prime, was fired shortly after she refused to drive through Donner Pass in the Sierra Nevada Mountains with a loaded tractor-trailer set during hazardous weather. Paul Taylor of the Truckers Justice Center filed a claim on behalf of Ferguson with the Department of Labor. Prime alleged that it fired Ferguson because she operated the truck at a deficit.
Near Reno, Nevada on Christmas, 2008, Ms. Ferguson observed hazardous driving conditions as she drove. After consulting other drivers, listening to radio weather reports and receiving reports from the state authorities advising against travel, Ferguson advised Prime via Qualcomm that she was not going to drive through Donner Pass until weather and driving conditions improved. When her dispatcher, Jeremy Thomas, read the message he told her "why didn't you cross it [Donner Pass] yesterday? You should have been across the country twice by now." A few days later Thomas recommended that Prime fire Ferguson, which management did.
Judge Leland found that Prime violated the Surface Transportation Assistance Act, which prohibits trucking companies from firing drivers for refusing to drive in violation of commercial vehicle safety regulations. Judge Leland held that Ferguson's refusal to drive was legally protected because violations of DOT regulations would have occurred but for Ferguson's refusal to drive in the hazardous weather. Judge Leland credited Ferguson's testimony noting that she properly relied upon reliable reports of bad weather and unsafe driving conditions through Donner Pass. In finding that Prime fired Ferguson because of her refusal to drive in hazardous weather, Judge Leland relied on an "incident report" prepared by Thomas noting that Ferguson refused to drive through Donner Pass and recommending that she be fired.
Judge Leland ordered Prime to reinstate Ms. Ferguson as a driver, pay back wages of more than $26,600, pay $50,000 as compensation for Ferguson's emotional distress, and pay $75,000 in punitive damages. Judge Leland also ordered Prime to pay Ms. Ferguson's attorney fees, and remove unfavorable information from her DAC Report.
Click here to download the decision.
Click here to order a copy of the STAA Handbook.
October 27, 2009: The Department of Transportation has agreed to abandon its defense of longer working hour standards for truck drivers issued in 2003. This could possibly lead to a return to the ten-hour daily driving limit, though there is no guarantee of that outcome.
Click here to read the press release from Public Citizen.
October 1, 2009: The Obama administration will ban texting by truck drivers and restrict the use of other in-cab technologies as part of its effort to eliminate distracted driving, Transportation Secretary Ray LaHood said Thursday.
LaHood, at the conclusion of a two-day hearing here on ways to combat driver distractions, said the Department of Transportation would “ban text messaging altogether, and restrict the use of cell phones by truck drivers,” as one of a series of steps aimed at reducing highway deaths.
Click here to read more at Transport Topics.