U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
In the Matter of:
ARB CASE NO. 98-019
ALJ CASE NO. 96-STA-30
DATE: February 27, 1998
DONALD F. CORTES
COMPLAINANT,
v.
LUCKY STORES, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL DECISION AND ORDER
This case arises under the employee protection provision of the Surface
Transportation Assistance Act of 1982 (STAA), 49 U.S.C.A. §31105 (West 1996). Donald
F. Cortes (Cortes) alleged that his employer, Lucky Stores, Inc. (Lucky) violated the STAA when
it discharged him. In a Recommended Decision and Order (R. D. and O.), the Administrative
Law Judge (ALJ) found that Cortes did not establish a STAA violation and recommended
dismissal of the complaint. The ALJ's findings of fact, R. D. and O. at 4-11, are supported by
substantial evidence on the record as a whole, and therefore are conclusive. 29 C.F.R.
§1978.109(c)(3). We accept the ALJ's credibility determinations as well. Like the ALJ,
we find that Cortes did not establish a STAA violation.
BACKGROUND
Cortes is a truck driver for Lucky, a large chain of grocery stores. T. 80.
In May 1996, Cortes's regular work shift was 5 p.m. to 1:30 a.m., Sunday through Thursday.
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T. 116, 118-119, 285. He had worked 38.3 hours in the four days preceding his reporting for
work at 5 p.m. on Thursday, May 23, 1996. The 38.3 hours included a total of 6.3 hours of
overtime accumulated in increments from one half to two hours over four days. T. 286.
Supervisor Tom Krug met with Cortes and the three other drivers at the start
of their shift at 5 p.m. on May 23. T. 251. Krug advised that he needed some drivers to work
on May 24 because of the upcoming Memorial Day holiday and various promotions that Lucky
was running. T. 249-251. Krug advised that the drivers could pick their start time, up to 7 p.m.
on May 24, as long as they had eight hours' rest after finishing their May 23 work shift.1 T. 181, 253.
1 The applicable Federal hours
of service regulation provides that a driver shall not drive more than ten hours following eight
consecutive hours off duty. 49 C.F.R. §395.3(a)(1).
2 The STAA provides in relevant
part, at 49 U.S.C.A. §31105(a):
(1) A person may not discharge an employee, or discipline
or discriminate against an employee regarding pay, terms, or privileges of employment, because--
* * *
(B) the employee refuses to operate a vehicle because--
(i) the operation violates a regulation, standard,
or order of the United States related to commercial motor vehicle safety or health; or
(ii) the employee has a reasonable apprehension
of serious injury to the employee or the public because of the vehicle's unsafe condition.
(2) Under paragraph (1)(B)(ii) of this subsection, an
employee's apprehension of serious injury is reasonable only if a reasonable individual in the
condition establishes a real danger of accident, injury, or serious impairment to health. To qualify
for protection, the employee must have sought from the employer, and been unable to obtain,
correction of the unsafe condition.
3 The regulation governing
maximum driving time provides that a driver shall not drive "after having been on duty 70
hours in any period of 8 consecutive days . . . ." 49 C.F.R. §395.3(b)(2).