Pursuant to 29 C.F.R. § 1978.109(a), (b) (2002), the ALJ forwarded the case to this Board for review. YCT advised the Board that it would not file a brief. Schwartz filed a brief in which he raises a number of objections to the ALJ's disposition of various discovery-related issues. See 29 C.F.R. § 1978.109(c)(2). We have jurisdiction to decide this case pursuant to 49 U.S.C.A. § 31105(b)(2)(C) and 29 C.F.R. § 1978.109(c)(1). See Secretary's Order No. 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002).

   Based on careful review of the record and the ALJ's decision, we concur in the ALJ's ultimate conclusion that the complaint be denied. We agree, however, with Schwartz's contention that the ALJ failed to properly respond to Schwartz's requests that the ALJ authorize subpoenas or otherwise compel YCT to produce certain business records for Schwartz's examination. As we discuss herein, at least some of the YCT records Schwartz requested fell within the range of materials that are properly discoverable in an employment discrimination case. Furthermore, contrary to the ALJ's ruling, Schwartz's requests for intervention in the discovery process by the ALJ were timely made. Nonetheless, as we also explain, the facts that Schwartz hoped to establish through those records are not determinative of the outcome in this whistleblower complaint. As the ALJ's errors in responding to Schwartz's discovery-related requests do not affect the outcome of this case, we accordingly hold that those errors are harmless. See generally Germann v. Calmat Co., ARB No. 99-114, ALJ No. 1999-STA-15, slip op. at 6-7 (ARB Aug. 1, 2002) (applying 29 C.F.R. § 18.103(a)(2) (exclusion or admission of evidence that would otherwise be erroneous will only support assignment of error if "a substantial right" of the complaining party has been affected by the evidentiary ruling)).

   Under the STAA, the Board is bound by the ALJ's factual findings if those findings are supported by substantial evidence on the record considered as a whole. 29 C.F.R. § 1978.109(c)(3); BSP Transp. Inc. v. United States Dep't of Labor, 160 F.3d 38, 46 (1st Cir. 1998); Castle Coal & Oil Co., Inc. v. Reich, 55 F.3d 41, 44 (2d Cir. 1995). Substantial evidence is that which is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Clean Harbors Envtl. Servs. v. Herman, 146 F.3d 12, 21 (1st Cir. 1998) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).

   In reviewing the ALJ's conclusions of law, the Board, as the Secretary's designee, acts with "all the powers [the Secretary] would have in making an initial decision. . . ." 5 U.S.C.A. § 557(b) (West 1996). See also 29 C.F.R. § 1978.109(c) (providing for issuance of a final decision and order by the Board). Therefore, the Board reviews the ALJ's conclusions of law de novo. Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1066 (5th Cir. 1991).

   YCT employed Schwartz to work as a truck driver hauling freshly harvested tomatoes from fields to a processing plant during the harvest season, which spans approximately three months. Pursuant to Section 395.1 of the Federal Highway Administration regulations, such agricultural transport operations are exempted from coverage by the Federal drivers' hours of service provisions found at 49 C.F.R. § 395.3. 49 C.F.R. § 395.1(a), (k); see OSHA Dep. Reg. Admr. Lee's ltr. dated Mar. 1, 2001 at attached Secretary's Findings, ¶6(a). The State of California hours of service regulations that apply to such agricultural transport permit a driver to drive continuously for longer periods and to drive for a greater number of aggregate hours within a specific number of days than are allowed for operations covered by the Federal regulation at Section 395.3. Compare Cal. Code Regs. tit. 13, § 1212(a), (k) with 49 C.F.R. § 395.3. Prior to being hired, Schwartz attended an orientation session conducted by YCT owner/manager Scott Daniel. Hearing Transcript (HT) at 36-37 (Daniel). Daniel explained that the drivers would be expected to work 12-hour shifts on a regular basis and to work an indefinite number of shifts on successive days. HT at 36-37 (Daniel). Schwartz testified that he understood when he took the job that working 12-hour shifts on successive work days was expected, and that he had worked 12-hour and even 16-hour shifts when previously employed in similar agricultural operations. HT at 25-26 (Schwartz).

This case presents these two basic legal issues:

1) Did the ALJ commit prejudicial error in denying the Complainant's requests for subpoenas and other assistance to compel production of YCT records in discovery?

2) Did YCT terminate the Complainant's employment because he engaged in protected activity?

   Discovery-related issues

   b) Causation

   At hearing, Daniel testified that he had decided to terminate Schwartz's employment based on Schwartz's performance on the six nights he had worked, June 29 through July 4, along with Schwartz's apparent inability to haul two loads on the night of July 5. Daniel stated that his review of Schwartz's work history as of July 6 brought him to the conclusion that Schwartz was not going "to get the job done" for YCT by working 12-hour shifts on a continuing basis. HT at 39-40 (Daniel).

   The uncontradicted evidence regarding Schwartz's work history fully supports Daniel's testimony. As we explain in greater detail below, that evidence establishes that Schwartz failed to demonstrate that he was prepared to take on the rigors of performing, on a continuing basis, the 12-hour overnight shifts required by the YCT job. We therefore conclude that Schwartz has failed to establish by a preponderance of the evidence that YCT terminated his employment in retaliation for engaging in protected activity. See Clement v. Milwaukee Transp. Servs., ARB No. 02-025, ALJ No. 01-STA-6, slip op. at 8-9 (ARB Aug. 29, 2003); Schulman v. Clean Harbors Envtl. Servs., ARB No. 99-015, ALJ No. 98-STA-24, slip op. at 9-10 (ARB Oct. 18, 1999).

   As we have already discussed within the context of the ALJ's discovery-related errors, the parties dispute whether or not Schwartz was offered second loads on the shifts that began on June 29, 30, July 1 and 3. It is uncontested, however, that regardless of the reason, Schwartz had worked a full, 12-hour shift on only two nights, July 2 and 4. HT 15-20, 28-30, 42-43, 49-50 (Schwartz), 38-40, 42 (Daniel), 46-49 (Duncan). It is also uncontested that Schwartz had complained of fatigue on one of those nights, July 4. HT at 16, 21, 18-19, 58-61 (Schwartz); 40 (Daniel), 48-49 (Duncan). It is similarly not disputed that Schwartz telephoned Duncan on July 5 and complained of fatigue that Schwartz believed would prevent him from completing a 12-hour shift beginning at 6 p.m. that evening. HT at 17, 19-20 (Schwartz), 40 (Daniel), 48-49 (Duncan). In short, it is undisputed that over the course of the seven nights he was scheduled to work, Schwartz had demonstrated his ability to work 12-hour shifts on two, non-consecutive nights; that he had advised the dispatcher on the second of those nights, July 4, that he needed to rest before completing the shift; and that he had then called in the following day, July 5, to advise that he was too fatigued to commit to a full 12-hour shift that night.

   Furthermore, uncontradicted evidence establishes that the only reason given by Schwartz for his fatigue on July 4 and 5 was the demands of the job. HT 16, 18-20, 29-30, 58-61 (Schwartz), 48-49 (Duncan). At hearing, Schwartz contended that he had not been given adequate notice to provide time for a proper transition to overnight shift work. HT 18, 25-26, 52 (Schwartz). He also testified that, as the work week went on, he "was just overwhelmed." HT at 18 (Schwartz). The fact that Schwartz had been hauling only one load and thus working approximate 6-hour shifts on June 29, 30, and July 1, 3 – regardless of whether he had been offered second loads on those nights – bolsters Daniel's testimony that he believed Schwartz had been given adequate time to transition to the overnight shift by July 5. HT at 40 (Daniel). The number of hours worked by Schwartz in his seven days with YCT thus undermines his argument that he was suffering from an "accumulated sleep deficit" on July 5, see Schwartz's Mar. 19, 2003 ltr. to ARB at 10.

   In addition, the record contains statements by Schwartz that effectively acknowledge that he was unprepared to take on the rigors of the 12-hour shift work on a continuing basis. At hearing, Schwartz stated that he found the 12-hour shift requirements of

the YCT work "acceptable" but he added that being assigned to the overnight shift "produced a real difficult situation" that was "absolutely not acceptable." HT at 26-27 (Schwartz). Statements included in a January 12, 2002 letter to the ALJ that Schwartz submitted on March 15, 2002 as a post-hearing exhibit provide further support for the conclusion that Schwartz was not prepared to perform 12-hour shifts, consisting of two 6-hour round trips, on consecutive work days. Schwartz described his work with YCT thus:

In that first week, the assignments initially required one (but sometimes, in the latter part of that week, two trips) from Helm, California to the intersection of State Route 166 and Interstate 5 (near Bakersfield, California). In my case, this was in addition to a daily two-hour commute from Fresno. In that first week Young's was not able to offer an assortment of assignments such that the 12-hour shift could be filled in a way other than two trips to Bakersfield because that was all that was available at the start of the season. I understood that as the season progressed, this situation would improve. On nights when two trips occurred the amount of work would almost fill 12 hours of continuous work, and sometimes more. In that first week there was consternation among the drivers because on the night shifts the company would, in the early part of the week, only deliver one run to Bakersfield (which paid about $65.00). This meant that some driver[s] could not earn close to the pay that was advertised, at least not in that first week. A few times during the latter part of the week the company did offer a second Bakersfield run, but even this was problematic because the time and mileage requirements would be so tight that on that second run, if the driver was delayed for any reason, their return time would go past 6:00 AM which would adversely affect the day schedule.

Schwartz's Jan. 12, 2002 ltr. at 5. Also in the January 12 letter, Schwartz stated that, despite his objections to YCT operations, "It didn't occur to me to quit the company, because I knew that it would take time for more, less distant fields to open up as the season progressed which would make the work more manageable for all concerned." Id. at 6. When the "less distant fields" were harvested, that meant shorter round trips for each load of tomatoes hauled, with some trips taking as little as two hours. See HT at 36-37 (Daniel). Considered in conjunction with the undisputed facts regarding Schwartz's performance at YCT, the foregoing statements suggest that Schwartz was anticipating the opportunity to work less rigorous shifts later in the harvest season.

   Also in the January 12 letter, Schwartz indicated that his need to rest during the 12-hour shift on July 4 resulted from his having worked six consecutive days prior to July 4; he similarly pointed out that July 5 would have been his seventh consecutive day of work. Id. at 5. As already discussed, Schwartz had worked only partial shifts on four of those six work days, hauling only one load on each of those four days. Although Schwartz emphasizes this work schedule as a significant accomplishment, the number of hours worked is actually little more than half of what YCT would expect in a six-day period, and which YCT could expect pursuant to the applicable California regulations. See Cal. Code Regs. tit. 13, § 1212(k). Stated differently, Schwartz's reliance on a six-day work history that included four shifts of approximately 6 hours each as cause for his fatigue on July 4 and 5 further supports Daniel's testimony that he terminated Schwartz's employment because he was apparently not prepared to perform the routine requirements of 12-hour shifts consisting of two 6-hour round trips on a sustained basis.

   Furthermore, in his January 12 letter, Schwartz stated that he had a daily two-hour commute to and from his home in Fresno to the YCT work-site. Schwartz's Jan. 12, 2002 ltr. at 4. This commute obviously added to the hours Schwartz spent driving each work day and may have detracted from Schwartz's ability and/or willingness "to get the job done" for YCT. Nonetheless, YCT was not required to accommodate Schwartz's daily commute time by lowering its expectation that a new driver demonstrate the ability and/or willingness to perform the 12-hour shifts it required on a routine basis.

   Based on the foregoing undisputed facts and Schwartz's own statements, we conclude that YCT terminated Schwartz's employment based on his failure to demonstrate the willingness and/or the ability to perform the 12-hour shifts required by the YCT job on a regular basis. Schwartz has thus failed to establish that YCT terminated his employment in violation of the STAA. Cf. Sosnoskie v. Emery, Inc., Worldwide Moving, ARB No. 02-010, ALJ No. 2002-STA-21, slip op. at 3 (ARB Aug. 28, 2003) (adopting judge's recommendation to deny complaint because evidence established that the termination was based on the complainant's pre-existing back injury, which rendered him unable to perform long haul driving and not on protected activity).

   For the foregoing reasons, we hold that Schwartz failed to prove by a preponderance of the evidence that his employment was terminated in violation of the STAA and we DENY the complaint.

   SO ORDERED.

      JUDITH S. BOGGS
      Administrative Appeals Judge

      M. CYNTHIA DOUGLASS
      Chief Administrative Appeals Judge