Department of Transportation ("DOT") regulations contain the following commercial motor vehicle safety rule dealing with fatigue:
No driver shall operate a commercial motor vehicle, and a motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the driver's ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle.
49 C.F.R. §392.3 (2000). Thus, an employee who refuses to operate a vehicle because his "ability or alertness is so impaired, or so likely to become impaired" as to be unsafe is protected under 49 U.S.C. §31105(a)(1)(B)(i) because driving in an impaired condition would violate DOT's fatigue rule. Yellow Freight Sys., Inc. v. Reich, 8 F.3d 980, 984 (4th Cir. 1993).
Under certain circumstances, the Secretary and the Board have held that an employee who refuses to operate a vehicle because of concerns about current or impending fatigue also would be protected under 49 U.S.C. §31105(a)(1)(B)(ii), the "reasonable apprehension of serious injury" test, which has been interpreted to apply whenever there is a serious safety issue:
The protections under subsection (ii), which are applicable whenever there is a serious safety issue, are considerably broader and are applicable even when the DOT safety regulations do not directly and specifically address the safety concern. However, in order to prove a fatigue related claim under subsection (ii), a complainant must prove that "a reasonable person in the same situation would conclude that there was a reasonable apprehension of serious injury if he drove."
Under this standard, a driver's claim of fatigue, standing in isolation and without context, is insufficient for protection under the STAA to attach. Instead, the Secretary, and now the Board, examines the facts surrounding each incident to determine if a reasonable person in the circumstances would have been justified in refusing an assignment due to fatigue. In practice, most drivers have found little difficulty meeting this standard when the circumstances of the driver's refusal to work point clearly to the immediate cause of the driver's fatigue concerns.
1 This appeal has been assigned to a panel of two Board members, as authorized by Secretary's Order 2-96. 61 Fed. Reg. 19,979 (1996).
2 Stauffer was represented by legal counsel in the proceeding on remand before the ALJ, but appeared pro se before the Board on appeal.
3 The facts of this case have been extensively recounted in the ALJ's two prior decisions and the previous decision of this Board. We will recapitulate briefly.
4 "Shuttling trailers" normally takes 20 to 30 minutes, and consists of the following: parking the loaded trailer; disconnecting the air hoses and the light cord between the truck and the loaded trailer; letting down the landing gear on the loaded trailer; releasing the fifth-wheel coupling from the trailer kingpin; pulling the truck away from the loaded trailer; driving to the empty trailer; backing the truck under the empty trailer; engaging the fifth wheel-coupling; raising the landing gear on the empty trailer; coupling the air hoses and light cord. The sequence is then repeated until the truck is reattached to the loaded trailer. The driver then backs the loaded trailer into the loading dock and unhooks the truck. Hearing Transcript ("TR") at 280-310, 797.
5 "Reasonable apprehension" is defined in the statute, which provides that "an employee's apprehension of serious injury is reasonable only if a reasonable individual in the circumstances then confronting the employee would conclude that the unsafe condition establishes a real danger of accident, injury, or serious impairment to health." 49 U.S.C. §31105(a)(2).
6 For a review of STAA whistleblower cases dealing with work refusals based on current or anticipated fatigue under the "reasonable apprehension of serious injury" test, see Somerson at 16.
7 The Federal Motor Carrier Safety Administration was established within the Department of Transportation by the Motor Carrier Safety Improvement Act of 1999, Pub.L. No. 106-159, 113 Stat. 1748, and was charged by the Secretary of Transportation with carrying out the responsibilities of the Department related to motor carrier safety. 65 Fed. Reg. 25,541.
8 A driver is not considered to be "on duty" if the driver has access to a sleeper berth and can get some rest. 49 C.F.R. §395.2. Therefore Stauffer, who still had hours of duty and driving time available, could have rested in his sleep berth until called upon to shuttle the trailers without violating DOT regulations. He could then have returned to his sleeper berth for the "8 consecutive hours off duty" required by DOT's driving time regulation, 49 C.F.R. §395.3(a).
Even if Stauffer did not have hours of duty or driving time available and needed to begin his rest period, he could still have slept in his sleeper birth until called because a driver "using sleeper berth equipment . . . may cumulate the required 8 consecutive hours off duty, as required by §395.3, resting in a sleeper berth in two separate periods totaling 8 hours, neither period to be less than 2 hours." 49 C.F.R. §395.1(g) (emphasis supplied).
9 Stauffer submitted extensive exhibits with his brief to the Board, some of which were not part of the record developed before the ALJ. Because the Board's decision is "based on the record and the decision and order of the administrative law judge," we have not considered those extra-record exhibits. 29 C.F.R. §1978.109(c).
10 The ALJ discounted Dr. Richert's testimony because he "is an expert in sleep disorders [and t]here is no evidence that Stauffer has a sleep disorder." R. D. & O. at 11 n.4. Although we share the ALJ's view that Dr. Richert's testimony was not very persuasive regarding the specific questions to be resolved in this case, we disagree that it was not useful because Dr. Richert's medical practice focuses on "sleep disorders," rather than "sleep." In our view, a medical doctor who has expertise in the speciality of "sleep disorders" necessarily has knowledge that may be useful to a court in more general area of "sleep."
11 "I just do not believe Stauffer's self-serving testimony that he was fatigued or that he anticipated fatigue which would make it unsafe for him to shuttle the trailers safely." R. D. & O. at 12.
12 Among other things, Stauffer offered Dr. Richert's testimony "to explain to us what the human body goes through, what makes it want to sleep. And that, we believe, will help the trier of fact determine whether or not Mr. Stauffer was impaired due to fatigue and sleepiness on August 8, 1998." TR at 421. Apparently recognizing this, the ALJ permitted Dr. Richert great latitude in testifying about these fundamental principles, over Wal-Mart's objections. See, e.g., TR at 412; 414-15; 418-19.