Amicus Curiae Brief — Brock v. Roadway Express, Inc.

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Supreme Court, U.S.

™ FILED

19 1986

No. 85-1530 SEP

SPANIOL, JR.

=e -

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

WILLIAM E. BROCK, Secretary of Labor, and

ALAN C. MCMILLAN, Regional] Administrator,

Occupational Safety and Health Administration,

Appellants

ROADWAY EXPRESS, INC.,

Appellee

On Appeal from the United States District Court

for the Northern District of Georgia

BRIEF FOR

AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL.

AMICI CURIAE,

IN SUPPORT OF APPELLEE

WILLIAM S. BUSKER

KENNETH E. SIEGEL

Counsel of Record

ATA LITIGATION CENTER

2200 Mill Road

Alexandria, VA 22314-4654

(703) 838-1865

Counsel for

American Trucking

Associations, Inc., et al.,

Amici Curiae

Dated: September 20, 1986

—_—_—X:___.R. RX - 22. 0 ee

ES TE PE AT SE EIS

WILSON - Epes Printing Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

INTEREST OF THE AMICI CURIAE ........00000000000.......

SUMMARY OF THE ARGUMENT .....WW000......

STE centiiestasedittsithinsriccincisemsssionienmensenimmermameniectatin

Il.

Ill.

This Court May Avoid Deciding The Constitu-

tional Issue In This Case By Relying On The

Legislative History Of The Statute Which Mani-

fests A Clear Intent To Provide For Due Proc-

I Be oe I onicecicrcieceesiveccccccescnscccoencees

The Other Major Federal Statutes Which Con-

tain Employee Protection Provisions All Re-

quire Some Form Of Due Process Prior to Re-

ERE AS SENDS A Aa

A Pre-Reinstatement Hearing Need Not Pro-

long A Wrongfully-Discharged Employee’s Tem-

porary Unemployment Or Present An Undue

Administrative Burden To The Government......

NIE ciiaingtshctetsiaisincninaedonintndivinimnranatanntesannnamintinineniin

TABLE OF AUTHORITIES

CASES: Page

Arnett v. Kennedy, 416 U.S. 184 (1974) .........0..... 12

Crowell v. Benson, 285 U.S. 22 (1932) ....00.222222... 7

Greyhound Corp. v. Mt. Hood, 437 U.S. 322

CRT) aneeccescccececessesenasesnssesinnssisnnsinsniiinnanannnnnnnn 7

Murray v. The Charming Betsy, 2 Cranch 64

CD ccsmnsniesiat ~-cnousennciensenuitessnninntiiaignaaiidnn 7

N.L.R.B. v. Catholic Bishop of Chicago, 440 U.S.

GBD TTD) caececcnscecvecvicssesssesenshsuaisiaan 7,8

Rose v. Lundy, 455 U.S. 509 (1982)...........000-2.000... 8

Southern Ohio Coal Co. v. Donovan, 774 F.2d 693

(6th Cir. 1985), reh’g denied, 781 F.2d 57 (6th

+ | RCE 9,13

United States v. Security Indus. Bank, 459 U.S.

1, SE } | SANE UNENMN ED NIE 7

CONSTITUTION AND STATUTES:

U.S. Const. Amend V (Due Process Clause) ........ 3

Administrative Procedures Act, 5 U.S.C. § 554... 8

Clean Air Act, 42 U.S.C. § 7622 .............................. 8

Civil Rights Act of 1964, Title VII, 42 U.S.C.

SE eens ner 9

Comprehensive Sosteemmnentel Response, Com-

pensation and Liability Act of 1980, 42 U.S.C.

EI a encececcceseeenensenennesncesisemnnnnmeiaienann 8

Energy Reorganization Act, 42 U.S.C. § 5851_...... 8

Employee Retirement Insurance Security Act, 29

18 Foe BS! A 9

Fair Labor Standards Act, 29 U.S.C. § 215 0... 9

Federal Mine Safety and Health Act of 1977, 30

18 5 oS | | Seeennmennnnn 9,10

Federal Water Pollution Control Act, 33 U.S.C.

DG oneness cn cnnneviecsoceonsnssssintieessiaseneniiaaiannnanne 8

National Labor Relations Act, 29 U.S.C. § 160.... 8

Occupational Safety and Health Act, 29 U.S.C.

Oo I ose cnc-oncs-nessosnsecnionsqssnecseniesinesnasasnuasseneanaalianeannn 9

Safe Containers for International Cargo Act,

oS Ce | | 9

Solid Waste Disposal Act, 42 U.S.C. § 6971 ............ 8

iii

TABLE OF AUTHORITIES—Continued

Page

Surface Mining Act, 30 U.S.C. § 1293 ................ 8

Surface Transportation Assistance Act, 49 U.S.C.

EST passim

Toxic Substance Control Act, 15 U.S.C. § 2622........ 8

MISCELLANEOUS:

Commercial Motor Vehicle Act of 1979, S. 1390,

§ 109, 96th Cong., Ist Sess., 125 Cong. Rec.

ES 4,5

Commercial Motor Vehicle Safety Act of 1980,

H.R. 6398, 96th Cong., 2nd Sess., 126 Cong. Rec.

a ____susseasuonscorsovorcs 4

Truck Safety Act, S. 2970, 95th Cong., 2nd Sess.,

I Ec csesenenssrscorrocoosns 4,5

Trucking Competition and Safety Act of 1979,

S. 1400, § 222, 96th Cong., 1st Sess., 125 Cong.

i censnscascossovonseos 4,5

128 Cong. Rec. :

p. 814648 (daily ed. Dec. 14, 1982)... 6

p. $15610 (daily ed. Dec. 19, 1982) —........0...... 5

p. H10826 (daily ed. Dec. 21, 1982) ................ 6,7

51 Fed. Reg. 16024 (April 30, 1986) —........................ 9,10

Ee 9,10, 11

OSHA Monthly Activity Reports, Sept. 1984;

Sept. 1985; and June 1986 .......... ne... 11

Accidents of Motor Carriers of Property 1984,

U.S. Dept. of Transportation (May 1986)......... 12

Identification of Preventable Commercial Acci-

dents and Their Causes, Mandex, on behalf of

Federal Highway Administration (Sept. 1985) .. 12

Study of Car/Truck Crashes in the United States,

Univ. of Mich. Highway Safety Research In-

a wccsssencneneces 12

286088 seg ete ne

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

No. 85-1530

WILLIAM E. Brock, Secretary of Labor, and

ALAN C. MCMILLAN, Regional Administrator,

Occupational Safety and Health Administration,

Appellants

ROADWAY EXPRESS, INC.,

Appellee

On Appeal from the United States District Court

for the Northern District of Georgia

BRIEF FOR

AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL.,

AMICI CURIAE,

IN SUPPORT OF APPELLEE

Pursuant to Rule 36 of the Rules of this Court, Amer-

ican Trucking Associations, Inc. and all eleven of its

affiliated trucking conferences' (hereinafter referred to

1 American Movers Conference; Film, Air and Package Carriers......

Conference, Inc.; Interstate Carriers Conference; Munitions Car-

riers Conference, Inc.; National Automobile Transporters Associa-

tion; National Tank Truck Carriers, Inc.; Oil Field Haulers Asso-

collectively as “ATA”) respectfully submit this brief as

amici curiae in support of appellee, Roadway Express,

Inc. ATA has sought and received the written consent

of the parties to file this brief amici curiae, and the let-

ters of consent have been submitted to the Court.

INTEREST OF THE AMICI CURIAE

American Trucking Associations, Ine. is the national

trade association of the trucking industry. Through its

individual trucking company members, affiliated state

trucking associations, and conferences, ATA represents

every type and class of motor carrier in the United

States: for-hire and private; regulated and unregulated;

union and non-union.

The other parties joining American Trucking Associa-

tions in this brief are its eleven affiliated conferences

which represent specialized segments of the motor carrier

industry.

The trucking industry has a vital interest in the safety

of our nation’s highways, the public, and its employees.

Accordingly, ATA has made a significant investment of

time, money and manpower in this important area. For

example, ATA has been a leader in seeking increased

enforcement of state and federal highway safety laws,

legislation requiring a_ single, national commercial

driver’s license, more comprehensive drug and alcohol

testing for motor carrier employees, and retention of the

55 mph speed limit.

ATA has also played a leadership role in the area of

vehicle safety. The trucking industry has strongly sup-

ported the Department of Transportation’s budget re-

quest for increasing the random roadside truck inspec-

ciation, Inc.; Private Carriers Conference, Inc.; Regular Common

Carriers Conference; Regional Distribution and Carriers Confer-

ence; and Specialized Carriers and Rigging Association.

tions program from $10 million to $50 million for fiscal

year 1987.

ATA, therefore, supports the intent and concept of

Section 405, Surface Transportation Assistance Act

(“STAA”), 49 U.S.C. § 2305, to encourage the reporting

of unsafe vehicles and safety violations.

While this case obviously has significant safety over-

tones, fundamentally the question presented to this Court

is whether the Fifth Amendment right of parties to the

guarantees of due process prior to government action de-

priving them of property will be upheld in a truck safety

context.

As employers of millions of people, the trucking indus-

try is necessarily concerned, as all employers must be,

with its rights and responsibilities to discharge dis-

honest, disruptive employees, who may, by their attitudes

and actions, compromise the integrity of the workplace

and undermine the productivity and morale of fellow

workers. In the case of trucking, such individuals may,

in fact, endanger public safety in their roles as mechanics

and drivers. Accordingly, ATA and its members have a

substantial interest in the outcome of this matter.

SUMMARY OF ARGUMENT

It was Congress’ intent to include due process protec-

tion for employers in § 405. The legislative history of

the section, including the history of earlier legislative

employee protection proposals, evidences an intent to in-

sure employers some form of pre-reinstatement hearing.

Of the many federal statutes containing employer protec-

tion provisions, the Government’s implementation of

§ 405 stands alone in denying employers adequate due

process protection.

Section 405 itself is silent on the pre-reinstatement

hearing issue. The legislative history, however, strongly

shows the intent of Congress to include the requirement.

Under this Court’s longstanding rule to avoid unconsti-

tutional interpretations of federal statutes when the lan-

guage of the law permits a constitutional construction,

the District Court’s decision below is the correct one.

Finally, a pre-reinstatement hearing will not jeopard-

ize fulfillment of the Congressional goal to encourage the

reporting of safety complaints. An evidentiary hearing

can easily be conducted during the investigatory period

established by Congress. Thus, an unlawfully discharged

employee will not suffer a prolonged period of unemploy-

ment and, correspondingly, the employee’s incentive to

bring safety complaints will not be deterred.

ARGUMENT

I. This Court May Avoid Deciding The Constitutional

Issue In This Case By Relying On The Legislative

History Of The Statute Which Manifests A Clear In-

tent To Provide For Due Process In § 405 Proceeding.

Section 405 on its face does not preclude a hearing

prior to preliminary reinstatement, and the entire legis-

lative history reveals the intent of Congress to provide

for one.

The provisions of § 405 protecting motor carrier em-

ployees from retaliatory disciplinary actions because of

safety complaints are directly traceable to several prior

truck safety bills, beginning in the 95th Congress in

1978.? Under the initial bills the employee was required

*“Trucking Safety Act, “S. 2970, §12, 95th Cong., 2nd Sess.,

124 Cong. Rec. $10913 (daily ed. April 20, 1978); “Commercial

Motor Vehicle Safety Act of 1979,” S. 1390, § 109, 96th Cong.,

Ist Sess., 125 Cong. Rec. 810920 (daily ed. June 21, 1979) ; “Truck-

ing Competition and Safety Act of 1979,” S. 1400, § 226, 96th Cong.,

Ist Sess., 125 Cong. Rec. 16352, (daily ed. June 25, 1979); “Com-

mercial Motor Vehicle Safety Act of 1980,” H.R. 6398, § 109, 96th

Cong., 2nd Sess., 126 Cong. Rec. 1530 (daily ed. January 31, 1980).

to seek redress through legal action in United States

District Court.*. Thus, both the carrier and the employee

would have received due process in a court of competent

jurisdiction prior to the issuance of a reinstatement order.

Two years later, S. 1390, as passed by the Senate in

1980, created the right to seek redress before the Secre-

tary of Labor, in lieu of costly court litigation. How-

ever, under the revision, the employer was still to be en-

titled to a hearing prior to the issuance of a reinstate-

ment order. The bill provided that the Secretary, if after

receiving a complaint and conducting a preliminary in-

vestigation, should conclude “that there is reasonable

cause to believe that a violation has occurred, he shal!

accompany his [investigatory] findings with a proposed

order providing the relief prescribed [in the statute].

Thereafter, either the person alleged to have committed

the violation or the complainant may, within 30 days, file

objections to the proposed order and request a hearing

on the record.” [Emphasis supplied.| S. 1390, § 109.

As the 97th Congress waned, the legislation at issue

here was introduced. In the House, “The Surface Trans-

portation Assistance Act,” H.R. 6211, passed on Decem-

ber 6, 1982 without any employee protection provisions.

S. 3044, the Senate version of the same act, was intro-

duced by Senator Packwood on December 7, 1982 and

included such provisions (§ 409, later § 405). The section

tracked the one that had passed the Senate in S. 1390 in

the previous Congress and contained due process proce-

dures. On December 19, 1982, Senator Danforth spoke in

favor of the bill and commented specifically on the pro-

tections for employers. 128 Cong. Rec. 815610 (daily ed.

December 19, 1982).

Thus, all of the statements and testimony spanning

‘three Congresses cited in favor of the safety statute were,

in fact, supporting a procedure which gave the employer

3S. 2970, S. 1390, as introduced and S. 1400.

rights to cross-examine witnesses and present its evidence

to challenge reinstatement demands.*

The Congressional Record is silent as to why, after

five years of careful consideration, the legislation was

suddenly changed to delete due process procedures when

S. 3044 was passed by the Senate on December 21, 1982.

For the first time, a requirement of “preliminary rein-

statement” instead of a “proposed order” appealable to

the Secretary of Labor was inserted in the bill.

However, when this provision as rewritten was ac-

cepted in the Conference between the Senate and the

House later on the same day, it is evident the Conferees

thought they were accepting and voting on the previous

provision with its due process procedures. The Confer-

ence Report on H.R. 6211,- which became the bill enacted

by both Chambers, undebatably describes the statutory

provision which contained the “proposed order” proce-

dure not the “preliminary reinstatement” procedure in-

serted inexplicably in the statute:

Subsection (c) provides the procedure an employee

may follow if the employee believes he has been dis-

criminated against, disciplined or discharged in vio-

lation of subsection (a) or (b). An employee may

file a complaint within 180 days after the alleged

violation occurs with the Secretary of Labor. The

Secretary of Labor is then required to conduct an

investigation within 60 days of receipt of a com-

plaint and report his findings and conclusions to the

affected parties. If the Secretary of Labor deter-

mines that there is reasonable cause to believe that

* No other version of § 405 was introduced between December 7,

1982 and December 21, 1982, the date S. 3044 passed the Senate.

The section-by-section analysis submitted by Senator Baker on

December 14, 1982 and quoted by the Government in its brief

(Gov’t. Br. p. 33) was also in support of the original provision

requiring the Secretary to hold a hearing on a proposed order

prior to reinstatement. 128 Cong. Rec. S14648 (daily ed. Dec. 14,

1982).

the complaint has merit, he shall notify the com-

plainant and the person alleged to have committed

the violation. Thereafter, either the person alleged

to have committed the violation or the complainant

may, within 30 days file objections to the proposed

order and request a hearing on record. Where a

hearing is not timely requested, the Secretary shall

issue a final order not subject to judicial review

... [Emphasis provided. |

128 Cong. Rec. H10826 (daily ed. December 21, 1982).

That Congress intended to include employer due proc-

ess protection in the “Protection of Employees” provi-

sions embodied in § 405 is clear. Since the statute can

fairly be read to include such constitutionally-mandated

protection for employers, the District Court was correct

in enjoining appellants from issuing a preliminary rein-

statement order prior to holding an evidentiary hearing.

This Court has stated that as a “cardinal principle,”

it will “first ascertain whether a construction of the

statute is fairly possible by which the constitutional ques-

tion may be avoided.” United States v. Security Indus.

Bank, 459 U.S. 70, 78 (1982), (quoting Crowell v. Ben-

son, 285 U.S. 22, 62 (19382)). “An Act of Congress

ought not to be construed to violate the Constitution if

any other possible construction remains availabie.”

N.L.R.B. v. Catholic Bishop of Chicago, 440 U.S. 490,

499 (1979); see also Murray v. The Charming Betsy,

2 Cranch 64, 118 (1804). Before determining that the

statute violates the Constitution, “there must be present

the affirmative intention of the Congress clearly ex-

pressed” that Congress intended the statute to be so

applied. N.L.R.B. v. Catholic Bishop of Chicago, supra

at 500.

In attempting to determine Congress’ intent, this Court

first looks to the statute. Greyhound Corp. v. Mt. Hood,

437 U.S. 322, 330 (1978). In this case, the statute itself

is silent on the issue of a pre-reinstatement hearing.

Where there is no clear expression of the intention of

Congress in the statute, the Court must examine the

legislative history of the Act to determine the Congres-

sional intent. N.L.R.B. v. Catholic Bishop of Chicago,

supra, at 504; Rose v. Lundy, 455 U.S. 509 (1982).

As illustrated above, Congress has consistently ex-

pressed an intent to provide employers with some form

of pre-reinstatement hearing in § 405 proceedings. By

relying on this legislative history, the Court may avoid

resolving the Constitutional issue and affirm the decision

of the District Court.

Il. The Other Major Federal Statutes Which Contain

Employee Protection Provisions All Require Some

Form of Due Process Prior To Reinstatement.

The Secretary of Labor’s interpretation of § 405 of the

STAA constitutes an anomaly when compared with the

other major federal statutes containing employee protec-

tion provisions and should not be allowed to stand.

Fourteen major acts of Congress provide for employee

protection when bringing law violations to public atten-

tion. All require that due process procedures be followed

before an employee may be reinstated and compensated

for wrongful discharge. Under eight statutes, an agency

hearing pursuant to the Administrative Procedures Act,

5 U.S.C. § 554, must be conducted before the employee

may be ordered reinstated.® Five other federal laws re-

quire the employee or the ageucy to bring an action in

federal district court to enforce the employee protection

5 National Labor Relations Act, 29 U.S.C. § 160; Comprehensive

Environmental Response, Compensation and Liability Act of 1980,

42 U.S.C. § 9610; Toxic Substance Control Act, 15 U.S.C. § 2622;

Federal Water Pollution Control Act, 33 U.S.C., § 1367; Energy

Reorganization Act, 42 U.S.C. § 5851; Solid Waste Disposal Act,

42 U.S.C. § 6971; Clean Air Act, 42 U.S.C. § 7622; and Surface

Mining Act, 30 U.S.C. § 1293.

provisions of these enactments, and again, only after a

trial on the merits, may the employee’s discharge or dis-

ciplinary action be reversed.°

Perhaps the statute most analogous to the one at issue

here is the Federal Mine Safety and Health Act of 1977,

30 U.S.C. § 815. Pursuant to this law, a miner who be-

lieves he or she has been wrongfully discharged may file

a complaint with the Secretary of Labor. Upon receiving

the complaint, the Secretary, after forwarding a copy to

the employer, must investigate the matter to determine

whether the case was frivolously brought. If the Sec-

retary finds that the complaint is not frivolous, the

employee must be immediately reinstated pending final

order on the complaint 30 U.S.C. § 815(c) (2). The stat-

ute makes no explicit provision for a hearing prior to

the issuance of the temporary reinstatement order.

Pursuant to this statute, the Federal Mine Safety and

Health Review Commission promulgated Rule 44, 29

C.F.R. Part 2700.44, which provided for a temporary

reinstatement order on the basis of an investigator’s

recommendation. The employer could then request a

hearing to contest the order, which had to be held within

5 days.

In Southern Ohio Coal Co. v. Donovan, 774 F.2d 693

(6th Cir. 1985), reh’g denied, 781 F.2d 57 (6th Cir.

1986), the court held that the procedures adopted by the

Commission were an unconstitutional deprivation of

mine operators’ due process rights in that they failed to

insure any reasonable opportunity for at least some mini-

mal evidentiary hearing before temporary reinstatement.

Since the statute itself could »e read in a constitutional

manner, the court of appeals was able to limit its review

to the unconstitutional rule.

® Fair Labor Standards Act, 29 U.S.C. §§ 215, 216; Employee

Retirement Insurance Security Act, 29 U.S.C. §§1132, 1140;

Occupational Safety and Health Act, 29 U.S.C. § 660; Title VII

of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-3, 5; and Safe

Containers For International Cargo Act, 46 U.S.C. § 1506.

In short, § 405 would stand alone in denying employers

due process rights provided in fourteen major federal

statutes should the decision of the lower court be re-

versed. There simply is no valid rationale to distinguish

this section from those others protecting similar rights

that would somehow require a different result.

Ill. A Pre-Reinstatement Hearing Need Not Prolong A

Wrongfully-Discharged Employee’s Temporary Unem-

ployment Or Present An Undue Administrative Burden

To The Government.

Contrary to the assertions of the government (Gov't

Br., p. 36) and amicus curiae for appellants, Teamsters

for a Democratic Union (TDU Br., p. 8-9), a pre-rein-

statement hearing need not prolong a wrongfully-dis-

charged employee’s unemployment. Under the current

statute, the Secretary of Labor must conduct an investi-

gation and make an initial determination whether there

is reason to believe the complaint has merit within sixty

days after receiving it. During this investigative period,

the discharged employee may be out of work. From a

practical viewpoint, there is no reason why some kind of

an evidentiary hearing that comports with due process

cannot be conducted within this time frame so that the

complainant’s unemployment, if it is unjustified, will not

be prolonged. Correspondingly, the employee’s incentive

to bring safety complaints would not be deterred.

For example, under the revised Rule 44 implementing

the Federal Mine Safety and Health Act of 1977, 29

C.F.R. 2700.44, published earlier this year, (51 Fed. Reg.

16024, April 30, 1986), the Secretary of Labor must hold

an evidentiary hearing in response to a complaint within

10 days and make a determination whether the employee

should be temporarily reinstated.’ The employer is given

the opportunity to cross-examine any witnesses and pre-

TIn pertinent part, Rule 44 now reads:

(b) Request for hearing. Within 10 days following receipt of

the Secretary’s application for temporary reinstatement, the

person against whom relief is sought shall advise the Com-

sent testimony and documentary evidence in support of

its own position. Section 405 gives the Secretary six

times as long—60 days—to conduct a similar hearing.

Nor would the Department of Labor’s resources be

overtaxed by having to conduct such hearings. Based on

the following historical experience with the statute, since

FY 1984, the Secretary has found merit on average in

fewer than 50 complaints a year.* Thus, the number of

instances where a hearing would be required prior to

reinstatement (see column headed “Found to Have

Merit”) are minimal:

Complaints Found

Pending as New to

of Oct. 1 Com- With- Have Dis-

of Fis. Yr. plaints drawn Settled Merit missed

FY 35 354 100 35 25 25

1984

FY 216 469 211 97 34 175

1985

FY 109 446 137 58 54 84

1886

(as of

June 30)

Source: OSHA Monthly Activity Reports, Sept. 1984; Sept. 1985;

and June 1986.

mission’s Chief Administrative Law Judge or his designee,

and simultaneously notify the Secretary, whether a hearing

on the application is requested. If no hearing is requested, the

Judge assigned to the matter shall review immediately the

Secretary's application and, if based on the contents thereof

the Judge determines that the miner’s complaint is not frivo-

lously brought, he shall issue immediately an order of tem-

porary reinstatement. If a hearing on the application is re-

quested, the hearing shall be held within 10 days following

receipt of the request for hearing by the Commission’s Chief

Administrative Law Judge or his designee, unless compelling

reasons are shown in an accompanying request for an extension

of time.

® The OSHA Monthly Reports do not indicate how many “merit”

determinations involve cases of discharge and how many concern

other types of disciplinary or discriminatory actions not involving

discharge.

Motor carriers have a material property interest in not

being required to reinstate a disruptive employee. The

government argues that the employer will not suffer an

economic loss as a result of a preliminary reinstatement

order because it will be receiving the employee’s labors

during the term of the reinstatement (Gov't. Br., p. 26).

However, appellants ignore the disruptive nature of such

a requirement and its impact on productivity, quality,

and the morale of other workers.

In trucking, the forced rehiring, for example, of an

incompetent or dangerously careless employee may pre-

sent a possible safety hazard to other employees and the

general public—the motor carrier employer must bear the

responsibility and liability of having such an employee

operating its trucks, and the public must bear the risk

of having him on the highways.°

Nor is the period of reinstatement necessarily short.

Under the statute, there is no time limit within which

the Secretary must hold a hearing after the preliminary

reinstatement order is issued, and the Secretary has 120

days after the hearing to issue a final decision, 49 U.S.C.

§$ 2305(c) (2). Thus, a carrier could be forced to reem-

ploy an unsatisfactory employee for a minimum of six

months to over a year.

The disruptive cost of reinstating such employees has

been recognized by this Court in Arnett v. Kennedy, 416

U.S. 134, 168 (1974) wherein Justice Powell in a concur-

ring opinion stated:

® Three recent studies indicate that 95% of truck accidents are

caused by driver error, rather than vehicle defects: Study ef Car/

Truck Crashes in the United States, Univ. of Mich. Highway

Safety Research Institute (May 1982); Accidents of Motor Car-

riers of Property 1984; U.S. Dept. of Transportation (May 1986) ;

and Identification of Preventable Commercial Accidents and Their

Causes, Mandex, Inc., on behalf of Federal Highway Administra-

tion (Sept. 1985).

Prolonged retention of a disruptive or otherwise un-

satisfactory employee can adversely affect discipline

and morale in the workplace, foster disharmony, and

ultimately impair the efficiency of an office or agency.

See also Southern Ohio Coal Co., supra at 703, where

the court found “compelling” the employer’s interest in

“not being required to employ in a sensitive position [sec-

tion foreman] a man whom it has discharged.” The

operation of an eighteen wheel truck on the nation’s

highways must be considered such a “sensitive position.”

In comparing the cost of conducting the constitution-

ally required evidentiary hearing, to the substantial cost

to employers of having to reinstate an unsatisfactory em-

ployee, we believe the equitable as well as the legal bal-

ance weighs in favor of requiring a pre-reinstatement

hearing.

CONCLUSION

ATA respectfully urges that the decision and order of

the District Court be affirmed.

Respectfully submitted,