U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB CASE NO. 96-198 ALJ CASE NO. 95-STA-29 DATE: January 6, 1997
In the Matter of:
ROBERT MICHAUD,
COMPLAINANT,
and
ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH,
INTERVENOR,
v.
BSP TRANSPORT, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
DECISION AND REMAND ORDER
In this case arising under the employee protection provision of the
Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C.A. § 31105 (West
1994), Complainant Robert Michaud alleged that Respondent, BSP Transport, Inc. (BSP)
discriminated against him by discharging him because he made safety complaints. In a
Recommended Decision and Order (R. D. and O.), the Administrative Law Judge (ALJ) found
that Michaud did not establish that safety complaints motivated the discharge and recommended
dismissal. Following a thorough review of the record, including the R. D. and O., we disagree
with the recommendation that the complaint be dismissed and remand to the ALJ for a
supplemental recommended decision on the remedy.
If the ALJ's factual findings are supported by substantial
evidence in the record, they are conclusive. 29 C.F.R. § 1978.109(c)(3). As noted below,
however, some of the ALJ's factual findings are not supported by the record evidence and
consequently we make corrected findings concerning those facts.
BACKGROUND
When Michaud began work as a truck driver for BSP in July
[Page 2]
1993, a BSP dispatcher told him that he did not have to keep a driver's log because he was only
driving locally. T. 70. Michaud soon began driving a route between a terminal in Westport,
Maine and Boston's Logan Airport and routinely worked from 4 or 5 p.m. until 2 or 3 a.m. T. 73.
That September, BSP had Michaud sign and back date documents, including a "Record of
Time Worked" that referred to the United States Department of Transportation's (DOT)
hours of service regulations. T. 74-75; CX 2, last page.1 As a result, Michaud became concerned that the regulations prohibited him from
working more than 12 hours at a time. T. 79-84.2
1 As relevant to this case, the DOT
regulation provides:
§ 395.1 Exemption from requirements of § 398.8 [keeping driver log]:
(e) 100 air-mile radius driver. A driver is exempt from the requirements
of § 395.8 if:
1) The driver operates within a 100 air-mile radius of the normal work
reporting location;
(2)The driver . . . returns to the work reporting location and is released
from work within 12 consecutive hours;
(3) At least 8 consecutive hours off duty separate each 12 hours on
duty;
(4) The driver does not exceed 10 hours maximum driving time
following 8 consecutive hours off duty; and
(5) The motor carrier that employs the driver maintains and retains for
a period of 6 months accurate and true time records showing [the time
the driver reports to and is released from work and the total number of
hours on duty].
2 The record contradicts the
ALJ's finding, R. D and O. at 13, that "[Michaud] testified that he first became concerned about
the "hours of service" rules after his 90 day evaluation in October 1993, when he signed
certain documents advising of those rules [T. 74]." Michaud testified that he signed the
document concerning the DOT hours of service regulations "around the end of September to
October." T. 75. This was prior to his mid-October performance evaluation, when he told his
supervisor, Glenn Osterberg, that working additional hours beyond 60 per week would be illegal.
See T. 92-93, 449-451 (Michaud signed his performance review on October 21, 1993, about
a week after he received it).
3 The record clearly indicates
that Michaud spoke to the state trooper prior to telling Osterberg, during the performance evaluation,
that working more than 60 hours per week was unlawful. T. 88.
4 Thus, we disagree with the
ALJ's finding, R. D. and O. at 14, that Michaud began copying other drivers' time cards on December
23, 1993, which was the very day he was fired. See CX 7, first page (time card of driver
Morrison dated October 30, 1993). See also T. 107 (Michaud's testimony concerning
November 1993: "At that time, I was already photostat [sic] copying . . .") and T. 189
(Michaud stopped photocopying for a time when Kasny worked night shift because he did not want to
be caught making copies).
5 Consistent with prior
decisions of the Secretary of Labor and with the ALJ's decision in this case, we find that internal
complaints to managers are protected. See R. D. and O. at 15, 20 and cases there cited.
6 We ask the parties to address
on remand why they stipulated to paying time and half to Michaud after 45 hours per week instead of
the usual 40.