Farrar v. Roadway Express, Inc., 2001-STA-58 (ALJ Dec. 13, 2002)

U.S. Department of Labor

Office of Administrative Law Judges 603 Pilot House Drive, Suite 300 Newport News, Virginia 23606-1904 (757) 873-3099 (757) 873-3634 (FAX)

Issue Date: 13 December 2002
CASE NO.: 2001-STA-0058

In the Matter of:

WILLIAM FARRAR,
    Complainant

   v.

ROADWAY EXPRESS, INC.
    Respondent

   This proceeding arises under the employee protection provisions of Section 405 of the Surface Transportation Assistance Act of 1982 ("The Act"), as amended, 49 U.S.C. § 31105, and its implementing regulations, 29 C.F.R. Part 1978. A hearing was scheduled for Thursday, April 25, 2002 at 9:00 am, at the U.S. District Court, 401 N. Patterson Street, Room 257, Valdosta, Georgia 31601, pursuant to a Notice of Hearing issued on February 20, 2002.

   At the time and place for the hearing, the Respondent appeared, represented by Counsel. The Complainant, himself, was not present, but was represented by Counsel. Counsel for Complainant advised, prior to commencement of the hearing, that the Complainant had been dispatched to drive earlier in the week, but would appear for the hearing, possibly a few minutes late. Upon commencement of the hearing, Counsel advised that the Complainant had telephoned that he had been further dispatched, on Wednesday, to continue his run down to Miami, Florida, and would be unable to appear at the formal hearing. Therefore, Counsel requested a continuance of the hearing.

   Counsel for Respondent, moved for dismissal of the complaint due to the Complainant's failure to appear and prosecute the case. Counsel represented that the Complainant had made no request to be out of work to attend the hearing, that he had ample vacation time available, and that he had compensatory time available.

   Upon consideration of both motions, an order to show cause was issued on May 6, 2002. The order directed the Complainant to show cause why his complaint should not be dismissed due to his failure to appear at the formal hearing to prosecute the case. In responding, the Complainant was directed to specifically address why he did not request and make arrangements to be available to attend his hearing. Further, it was ordered that upon receipt of the Complainant's response, the Respondent would be permitted 10 days to file a response. Counsel for the Complainant filed a brief only in response to the show cause order on May 14, 2002. Respondent filed a brief with supporting affidavits on May 28, 2002.

   At the outset, it is noted that the Complainant has not filed a response to the order to show cause, but has instead submitted only a brief addressing the same arguments that were made at the aborted hearing. As such, the assertions made by Counsel in the brief are not accorded the weight of an assertion by the Complainant under oath, but are simply argument.

   Counsel for the Complainant responds to the show cause order, arguing that the failure to attend the hearing was through no fault of Complainant, as it is argued, that he did not have sufficient compensatory time available to use to attend the hearing. Counsel also argues that the Complainant did make a request for time off, stating that "Upon returning from a run on the afternoon of April 23, 2002, Complainant completed his paperwork and made note on the OP-114 card supplied by the Respondent that he had an appointment on April 25, 2002 at 9:00 am in Valdosta which he needed to attend." Counsel also asserts that Complainant also made note to the dispatcher when called for the trip to Pompano later on the night of the 23rd that such a run would work with him returning in time for his 9:00 am appointment.

   Counsel further argues that Complainant made a request for his "OP-114 cards" in order to check his time, and was informed that the OP-114 form from the April 23, 2002 run to Pompano, which carried the notation of the April 25, 2002 court date, could not be located, although it had to be time punched and attached to the Form D7-024. Counsel asserts that it was that card which carried the notation of the 9:00 am appointment on April 25th, and that "Section 395.8(k)(1), however, requires that all documents relating to dispatch records and driver call-in records, among others, are to be retained at the principle place of business for a period of six months."

   Finally, Counsel for the Complainant addresses Respondent's contention that the Complainant could have refused the Pompano run when dispatched. To the contrary, Counsel argues that the "National Master Freight Agreement clearly states in Article 42, Section 4 (c) that all extra board drivers must be available at their eligible call time and must accept a dispatch when called. As the Complainant was on the call block with available run time, had he refused the Pompano run, he would have been in violation of the agreement and most assuredly received a disciplinary letter."

   Counsel for Respondent correctly notes that the Complainant's response is not supported by any affidavit testimony or other competent admissible evidence. Assuming that the unsupported response is considered (and it is considered), Respondent correctly indicates that it had suggested (at the hearing) four things that Complainant could have done to make sure that he was available for the hearing. Those things were (1) ask off in advance, (2) use available vacation time , (3) plug a turn, and (4) use accumulated time.

   Counsel for Respondent argues the Complainant did not ask off for the hearing, asserting that, "Extra Board drivers routinely ask off in advance for court proceedings such as child custody hearings, divorce proceedings, traffic accidents, etc., but Farrar simply failed to do so. In support of that assertion is attached the affidavit of Michael Doss, Relay Manager for Roadway Express in Lake Park, Georgia. Mr. Doss avers that the Complainant did not ask off and that such requests for time off are routinely considered and granted. (Doss Affd. ¶ 16, 17).

   As to the assertion by Counsel that Complainant had made a note on his OP-114 card for April 23, 2002 that he had a hearing on April 25, 2002 at 9 a.m., Respondent argues that Complainant's memory is faulty. In support, Respondent submitted a copy of the OP-114 card for April 23, 2002, along with affidavits from Mr. Doss (Doss Affd. ¶ 22), Dara DeHaven, Counsel for Roadway Express (DeHaven Affd. ¶ 9), and from Ron Cofield, Coordinator (Cofield Affd. ¶¶ 5, 12-15). The exhibit and affidavits do support Respondent's contention that the Complainant did not ask off in advance or provide any notification that he needed the time off.

   Similarly, the Respondent has asserted that the Complainant had 18 days of vacation available (an assertion not addressed by the Complainant), and that he could have "plugged a turn" to insure that he was in Valdosta, Georgia for the hearing. These assertions are equally supported by the affidavits submitted with the response. The arguments of Counsel for the Complainant cannot suffice to counter the weight of such evidence.

   Upon consideration of the responses to the order to show cause, I find that the Complainant has offered no reasonable excuse, and certainly not good cause, for his failure to appear for the hearing. Respondent was there with its witnesses and ready for trial.¹ As the Complainant has not established good cause, I find that the complaint should be dismissed for failure to prosecute.

   Accordingly, it is recommended that the complaint of William Farrar versus Roadway Express, Inc., be and the same is, hereby, Dismissed.

       Richard E. Huddleston
       Administrative Law Judge

NOTICE: This Recommended Decision and Order and the administrative file in this matter will be forwarded for review by the Administrative Review Board, U.S. Department of Labor, Room S-4309, 200 Constitution Avenue, NW, Washington D.C. 20210. See 29 C.F.R. §§ 1978.109(a); 61 Fed. Reg. 19978 (1996)

¹I also note that the sole issue which even remained for consideration was the presence in the Complainant's personnel file of an expired warning letter for failure to follow instructions.