DATE: December 24, 1998

CASE NO.: 98-STA-00026

In the Matter of

ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH
    Prosecuting Party

   and

JEFFREY A. FREEZE
    Complainant

   v.

CONSOLIDATED FREIGHTWAYS
    Respondent

Appearances:

    Troy E. Leitzel, Esq.,
       For the Prosecuting Party and Complainant

    Edward S. Mazurek, Esq.,
       For the Respondent

Before: Ainsworth H. Brown
    Administrative Law Judge

   This matter arises under the Surface Transportation Assistance Act. A hearing took place in Camden, New Jersey on September 10, 1998. After an agreed upon extension closing arguments were received on November 24, 1998.

   The Complainant testified in a sincere testimonial demeanor and what he had to say did not reveal any significant internal inconsistencies so as to undermine his recital of probative value.

   Mr. Freeze said that he had become a driver for the respondent at the York, Pennsylvania terminal in April 1997. Before that he had been employed in the Carlisle terminal as an assistant dispatcher.

   On January 8, 1998, Mr. Freeze was called in to work beginning shortly after midnight, January 9. His pre-trip was marked out 12:15 a.m. The witness continued that he took a safety break at 2:15 a.m. and then arrived in Allentown, Pennsylvania at 3:00 a.m. The trip had taken 2 1/4 hours with the pre-trip two hours and thirty minutes.

   He left Allentown at 3:15 a.m. and arrived at the Harrisburg, Pennsylvania rail terminal at 5:00 a.m. After his trailer was unloaded, he left for York at 6:00 a.m. Upon arriving there at 6:45 a.m. John Baer, the dispatcher, asked him to make a run to Alexandria, Virginia; however, Mr. Freeze, said that due to the traffic he would encounter in the Washington-Baltimore metropolitan area that it would be impossible for him to return to York. He said that he did not have "enough hours" due to the DOT "70 hour" rule. Mr. Baer offered the alternative of a run to Allentown that was accepted for an ordinary run. He left the terminal at 7:30 a.m.

   He stopped just on the other side of Harrisburg for a meal break "...and as I went to make my log entry I went into my book and I realized that I didn't have enough hours to make the run legal." (TR 34).

   He continued that he "was up against my 70 rule." So, he turned his truck around and went back to York. He punched back in at 8:52 a.m. Mr. Baer inquired as to why he was back at the terminal and a discussion ensued about his driving hours.

   Mr. Freeze testified that he was tired and then realized that he had made a miscalculation in adding up his hours. In going over the issue with Mr. Baer they determined that he had two hours left before he would "hit" 70 hours.

   The complainant testified that he apologized for his mistake and that he would "take a letter", but he never thought that he would be terminated.

   The witness continued his testimony by reporting that Mr. Baer had advised him that his wife had called the office while he was away, inquiring as to her husband's availability to come home to baby sit. It was not until this point when Mr. Baer informed him of his wife's call that he knew his presence was desired at home.

   Mr. Freeze said that he did not know he had been fired until that his union business agent told him on Sunday, January 11. As a result of the action he filed a grievance and after arbitration proceeding the termination was changed to a 60-day suspension. His reinstatement occurred on March 9, 1998.

   After making his complaint to OSHA, he supplied documentation as to his losses as a result of the company's action.

   On cross examination it was learned that Mr. Freeze did not always take a lunch break. Testifying on his behalf was the OSHA inspector who computed the damages assessed against the respondent based on Mr. Freeze's complaint.

   Testifying for the respondent was John Baer, the dispatcher described by the complainant and who now holds the position of line haul supervisor. He confirmed the complainant had told him that he did not have enough hours for the Alexandria, Virginia round trip; but; had accepted the trip to Allentown on January 9, 1998 with "Star" freight. After about an hour and a half he was surprised to see Mr. Freeze in the driver's lounge who did not appear tired or fatigued to the witness. Mr. Freeze did not report this condition to Mr. Baer. Mr. Baer testified that Mrs. Freeze called about 8:15, asking for her husband.

   Mr. Baer said that the procedure for a driver who discovers that he does not have enough hours to complete a run is to call his dispatcher, and that the driver does not have discretion where to drop his load.

   Mr. Baer did not communicate to Mr. Freeze that he would be transporting a time sensitive load. The witness did not recall that he and Mr. Freeze went over his hours more than once. The complainant did not communicate or otherwise indicate to Mr. Baer that he was fatigued.

   The witness acknowledged that he did not tell Mr. Freeze that his load was time sensitive. The issue of the 70-hour rule did not come up in the discussion, he recalled. He did not warn Mr. Freeze that his refusal to take the load to Allentown would cause his dismissal. He did recall that Mr. Freeze did not think he had enough time to bed somewhere so that was why he returned to the terminal.

   Also testifying for the respondent was Andrew Kudrick, the terminal manager at the York facility. He identified driver logs for several drivers in January 1998. Among other things, the driving time between York and Allentown was depicted as 2 hours to 2 hours and 15 minutes.

   Mr. Kudrick also testified that the company won the unemployment compensation claim filed by Mr. Freeze. His union grievance action resulted in a 60-day suspension instead of the action to terminate his employment. This was described as the most severe penalty short of termination. He also testified that employees all know that if a direct order is refused that one may be subject to termination.

   In order for Mr. Freeze to prevail he must establish what is known as a prima facie case. There is no question that a concern over the number of hours one has been driving may constitute protected activity, and, this would appear to be so, even if the employee calculation may have been off.

   The company position is limited to one that is the complainant refused a lawful order to do a run to Allentown, Pennsylvania. This contrasts with Mr. Freeze's position that he had only two hours remaining on his 10-hour daily restriction. The company contends that it only takes 2 hours to traverse the 112 miles to get from York to Allentown.

   The company's witness did show that some trips were made, taking only two hours, but other drivers took 2 hours 15 minutes. It is, therefore, unnecessary to rely on Mr. Freeze's assertion that it takes 2 hours. This is the story presented here stripped down to its essentials.

   Whether the trip took precisely two hours, two hours and fifteen minutes, or, two and a half hours it was "cutting it too close" for a safe trip as I understand the safety concerns undergirding the limitation on hours.

   The close proximity between the termination letter and the Freeze-Baer discussion demonstrate clearly a causal link to the termination notice. This is beyond question. The respondent's contentions that Mr. Freeze avoided the Allentown run to babysit is fatuous at best as the testimony was that Freeze had no awareness of his wife's call to the terminal until so notified by Mr. Baer, after his return to the terminal.

   This is not a situation wherein the employer had some other legitimate business reason to discipline its driver as the matter rests solely on the interchange between Mr. Freeze and Mr. Baer as to the confusion over hours. The employer attempted to bolster its defense by saying that it was standing operating procedure for drivers to call in to the dispatcher, but there was no proof of this provided and no showing that Mr. Freeze's representation was not

factual that he was only 20 minutes from the terminal to rob his action of its apparent reasonableness.

   The employer raised a question at hearing as to the appropriateness of the claimed expenses for the trip to South Carolina to attend the grievance proceeding. What the employer overlooks is that "but for" its discriminatory act the complainant would not have had to incur those expenses. The other relief urged respecting back pay and interest is also proper as well as his expense in maintaining his health insurance for the 60 days of his suspension.

   It is the order of the Administrative Law Judge that the respondent, Consolidated Freightways, is to pay Jeffrey Freeze the following:

1. Back pay of $7,300.43 plus interest thereon.

2. Damages of $621.35 and $150.00 as described in the record.

       Ainsworth H. Brown
       Administrative Law Judge

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. §24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. Such a petition for review must be received within ten business days of the date of this recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).