Auto Safety Whistleblowers

I am pleased to announce that today the Sixth Circuit U.S. Court of Appeals has reversed a decision of the U.S. Department of Labor’s Administrative Review Board (ARB) Michelle & Harry Smith, Scooter McNuttand reinstated the whistleblower claim that my client Harry Smith made against the trucking company CRST. In the photo, Harry Smith stands between his wife and fellow truck driver Scooter McNutt. Smith was fired right after he threatened to take the company’s defective trailer to the Department of Transportation for inspection. The Department of Labor had dismissed Smith’s complaint against CRST after the Occupational Safety and Health Administration (OSHA) sent him a dismissal notice, showing that a copy was sent to me, his lawyer.  However, OSHA did not actually send me the copy of the dismissal notice until after Smith’s time to appeal had expired. Smith does not recall receiving the dismissal notice at all. CRST and the Department of Labor (DOL) tried to blame Smith for failing to appeal on time.  The Sixth Circuit says today that, “it appears to us that it falls even more heavily at the feet of OSHA, in failing to send the notice to Renner for some two months after the fact, despite the indication to Smith to the contrary.”

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Yesterday, the Seventh Circuit U.S. Court of Appeals affirmed a reinstatement order from the Department of Labor’s Administrative Review Board (ARB). The decision keeps truck driver Peter Cefalu on the job driving for Roadway Express. The Seventh Circuit considered a previous appeal by Roadway Express and decided that the company deserved a chance to prove

Federal Administrative Law Judge Daniel Leland issued an order yesterday reinstating truck driver Cynthia Ferguson to her job with New Prime, Inc. He also awarded her $26,601 in back pay, $2,269 in compensation for her personal property, $50,000 in compensatory damages, and $75,000 in punitive damages for conduct that “was both reprehensible and inimical to the purpose of the Act.” That Act is the Surface Transportation Assistance Act (STAA) that protects truck drivers when they blow the whistle on safety violations.

Ferguson refused to driver her truck over the Donner Pass near Reno, Nevada, on December 25, 2008. Ferguson saw the weather and the 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 said that she was not going to drive through Donner Pass until weather and driving conditions improved. Her dispatcher got upset with her and recommended that New Prime, Inc., fire her.  Prime then dispatched Ferguson to Springfield, Missouri, where a Prime management official, Jack Ewing, fired her.

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My friends at the Truck Safety Coalition provide the following information about public hearings on proposed new Hours-of-Service (HOS) rules. As part of the process of preparing for the new Hours of Service proposed rulemaking, the Federal Motor Carrier Safety Administration (FMCSA) is holding three public listening sessions to solicit comments.  The public can also submit comments to the docket if they are not able to attend the sessions.  The sessions are from 9 am – 5 pm or earlier if all participants wishing to express their view have done so.  They are:

  1. January 19, Doubletree Hotel Crystal City National Airport (Commonwealth Ballroom), 300 Army Navy Dr., Arlington, VA;
  2. January 22, Hyatt Regency DFW, International Pwy., DFW Airport, TX;
  3. January 25, Doubletree LAX (Pacific Ballroom), 1985 East Grand Ave., El Segundo, CA.

If you are able to attend a listening session, please contact the Truck Safety Coalition at 703-294-6404.  (Speakers remarks are limited to 10 minutes each.)


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U.S. Department of Transportation Inspector General Calvin Scovel III issued a letter of commendation to Steve T. Mackey, a former bridge manager for Metro’s Silver Line extension to Dulles Airport.  According to a story in today’s Washington Post, Dulles Transit Partners overruled Mackey’s concerns and decided to use 11 foundations abandoned in the 1970’s

Today the Eighth Circuit U.S. Court of Appeals held that 2007 amendments to the whistleblower protection for truck drivers is not retroactive.  In Elbert v. True Value Company, Case No. 08-1222 (8th Cir. 2008-12-19), the Court said that Timothy Elbert did not have a right in 2007 to file in federal district court a claim against his 2005 discharge.  The August 3, 2007, amendment to the Surface Transportation Assistance Act (STAA) is not retroactive.


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