A Letter of Warning was issued by the Respondent as a result of this incident (JX 10). This was discussed at a meeting with the Respondent's Relay Managers Mr. Mark Rosendale and Mr. Olszewski (Tr. 53-54.) The Complainant formally protested the letter (JX 4).

   The Complainant argues his sleep was not restful on the morning of December 10, 1997. During the thirty-hour period prior to December 10, 1997, he had no more than four and one-half hours of sleep. He contends that he was accustomed to sleeping nighttime hours. If the Complainant had accepted the call, he would have been driving at night, awake for twenty-two consecutive hours, and driven at a time when he is prone to sleepiness. The Complainant said he tried to stay awake on December 10, 1997, but was unsuccessful. See Brief of Complainant at 12-18.

   The Respondent maintains that the Complainant had adequate rest prior to the December 10, 1997 work call because he had his required six hours of sleep. According to the Respondent, the Complainant slept for approximately eight hours every night from December 6, 1997 to December 9, 1997, and approximately six to seven hours on December 10, 1997. See Brief of Respondent at 4-7.

    They assert that if the Complainant was fatigued, he should have made arrangements with the employer prior to receiving the work call. They point out that the Complainant was awake on December 10, 1997, during the period that he was eligible to slide and failed to inform Mr. Olszewski that he was fatigued. See Brief of Respondent at 15-16. In addition, the Complainant could have stopped in route and slept if he was fatigued. See Reply Brief of Respondent at 3.

   They also maintain that the Complainant did not allow himself any time to become awaken or alert. After he received the December 10, 1997 work call, he did not attempt to prepare himself to drive by getting out of his chair, taking a shower, eating, or packing. See Brief of Respondent at 8.

   The Respondent relies on the inconsistencies contained in the Complainant's deposition transcript and trial testimony concerning the time that he became eligible to slide and the time that he fell asleep on December 10, 1997. They contend that the Complainant's testimony concerning this incident is not credible. See Reply Brief of Respondent at 2.

   The Complainant replies that the amount of time that he slept prior to December 10, 1997, is not probative of whether he was in fact fatigued on December 10, 1997. He explained that his sleep on the morning of December 10, 1997, was not restful because it was fragmented and the truck that he rested in did not contain a sleeper berth. See Reply Brief of Complainant at 2-4.

   The Complainant asserts that his testimony concerning his fatigue is credible because his truck driving experience provided him with the ability to discern whether or not he is fatigued. The fact that he could not stay awake to request a slide demonstrates that he was fatigued. See Reply Brief of Complainant at 2-5.

The March 21, 1998 Incident

   The next incident began on March 19, 1998. The Complainant completed a sixth tour of duty, earning forty-eight hours of uninterrupted duty time off. He would not be subject to recall until March 21, 1998 at 1:44 a.m. (JX 10).

   The following activities occurred during that period. On March 19, 1998, the Complainant slept for approximately six and one half to seven hours during the day. He then slept from 11:00 p.m. March 19, 1998 to 7:00 a.m. March 20, 1998 (Tr. 71, 160). On March 20, 1998, he went shopping with his wife (Tr. 160-161). He attempted to sleep from 3:00 p.m. to 5:00 or 5:30 p.m., but was not sleepy (Tr. 73-74, 161-162, 182). From approximately 7:00 p.m. to 9:00 p.m., he attended a party that his wife was hosting. He returned home and went to bed at 9:30 p.m. (Tr. 74-75). The Complainant said that it took him between one to one and one-half hours to fall asleep (Tr. 75).

   At 1:21 a.m., twenty-three minutes prior to the expiration of the Complainant's forty-eight hours off, Company Dispatcher Gary Kiser called the Complainant who accepted an assignment for a run to Jamestown, Ohio. After he received the call, he fell back to sleep (JX 10). The Complainant said that approximately one hour after he received the call, he got up from bed to use the bathroom. When he returned to bed, his wife asked him what he was doing because an hour before, he had accepted a work call (Tr. 76-77).

   The Complainant then decided to check his logs because he believed that the Respondent called him before his forty-eight hours of rest had expired (Tr. 77). After he realized that he had been called prematurely, he called Mr. Kiser back around 2:24 a.m. and informed him that he was fatigued and needed more time to sleep (Tr. 79). Mr. Keiser admitted the mistake and then transferred the Complainant to Tim Doody, the Respondent's Relay Coordinator. Mr. Doody offered to reinstate the work call and provide the Complainant two hours to report to work form that moment (Tr. 79-80; JX 10). The Complainant alleges he informed Mr. Doody that he was too tired to safely operate a commercial motor vehicle and needed an additional four hours to rest (Tr. 82-84, 86).

   Ultimately, the Complainant refused Mr. Doody's offer and the work assignment. As a result, the Respondent disciplined him with a five-day suspension (JX 10).

   The Complainant stated that he slept seventeen hours in the period from March 18, 1998 to March 21, 1998. He slept from one o'clock p.m. on March 18, 1998 to seven o'clock a.m. on March 19, 1998. He slept for two and one-half hours from March 20, 1998 to March 21, 1998. Had the Complainant accepted the work assignment, he says he would have driven at a time when he is prone to sleepiness. See Brief of Complainant at 13-16.

   The Respondent maintains that the Complainant's allegations of fatigue are inconsistent with his actions. The Respondent pointed out that the Complainant discussed the call with his wife, walked down stairs to review his logs, realized that he was called twenty-three minutes prematurely, and engaged in a lengthy conversation with Mr. Doody. The Complainant never said that he was fatigued or that he needed additional time to rest. He informed Mr. Doody that he was called prematurely and requested that he be provided the weekend off. He did not allege that he was fatigued until after he was given the driving assignment. He refused Mr. Doody's offer to reinstate the work call which would have provided him with an additional two hours of rest. See Brief of Respondent at 11-12, 15-17.

   Although the Complainant said that he may have been rested if he had not been called twenty-three minutes early on March 21, 1998, the Respondent explained that the Complainant received an additional hour of rest that night by falling back asleep after he received the call. When reminded of the additional time, the Complainant stated that such rest was not restful, but failed explain why it wasn't restful. See Brief of Respondent at 11.

   In reply, the Complainant argues that he only obtained seventeen hours of sleep from the time that he began his tour of duty on March 18, 1998 until the time he received the March 21, 1998 work call. He explained that the additional hour of rest that he obtained the morning of March 20, 1998, was not restful because it was fragmented. The fact that he did not recall receiving the call shows that he was fatigued. See Reply Brief of Complainant at 5-6.

   The Complainant asserts that his refusals are protected activity because his "ability or alertness was so impaired, or so likely to become impaired, through fatigue, that it would have been unsafe for him to begin or continue to operate a motor vehicle." See Brief of Complainant at 12-13. The Complainant maintains that the amount of time that he was awake and the number of hours that he worked prior to receiving the work assignments in question may be relied upon to determine whether operation of a vehicle would have been unsafe. Spearman v. Roadway Express, Inc., 1992-STA-1 (Sec'y June 30, 1993), aff'd sub nom. Roadway Express, Inc. v. Reich, 34 F.3d 1068, 1994 U.S. App. Lexis 22924 (6th Cir. 1994). See Brief of Complainant at 14. Had the Complainant operated a motor vehicle on the days in question, he contends an actual violation of 49 C.F.R. § 392.3 would have occurred. See Brief of Complainant at 17.

   The Complainant explained that a person's circadian rhythm is affected when their sleeping schedule is irregular. Also, fragmented sleep is not as restorative as continuous sleep and nighttime sleep is not as restorative as daytime sleep. The Complainant went on to state that people are normally sleepier at night and people who are awakened during their principal sleeping period are more likely to have reduced alertness. Also, shift-workers may have difficulty adjusting to an inverted schedule, regardless of whether a consistent sleeping schedule is established, because physiological and performance levels are low after midnight and in the early to mid afternoon. See Brief of Complainant at 15-17, quoting 65 F.R. 25553, 25561-25562 and 25587.

   The Respondent asserts that the Complainant did not engage in protected activity. According to the Respondent, the Complainant suffered from "momentary tiredness after a brief nap." The Complainant failed to follow the Respondent's work rules because either "he did not get sufficient rest or simply did not want to work." See Brief of Respondent at 8, 20.

DISCUSSION AND RATIONALE

   The Complainant failed to prove that a violation of § 31105(a)(1)(B)(i) occurred. Operation of a vehicle by the Complainant on December 10, 1987, would not have violated the specific requirements of the fatigue rule. The Complainant's ability or alertness was not so impaired, or so likely to become impaired, that it would have made it unsafe for him to begin or continue to operate a commercial motor vehicle. Prior to the December 10, 1997 work call, the Complainant had adequate sleep. He testified that he requires six hours of sleep in a twenty-four hour period to "adequately function." (Tr. 63-64, 125). The Complainant slept approximately eight hours the evenings of December 6, 1997, December 7, 1997, and December 8, 1997 (Tr. 24, 26-27). On the morning of December 10, 1997, he slept for two and one-half hours (JX 10). He then slept from 8:30 a.m. to 12:00 p.m. or 1:00 p.m. (Tr. 37-39, 126-128). Thus, he slept for a total of six to seven hours on December 10, 1997, before he received the work call.

   I find that the Complainant was rested prior to the March 21, 1998 work call. On March 19, 1998, he slept for six and one-half to seven hours during the day and eight hours at night (Tr. 69-71, 160). Although he could not fall asleep, he rested from approximately 3:00 p.m. to 5:00 or 5:30 p.m. on March 20, 1998 (Tr. 73-74, 161-162, 182). He then rested/slept sometime between 9:00 or 9:30 p.m. for approximately two hours and nine minutes to two hours and thirty-nine minutes until he received the work call (Tr. 75). After the call, the Complainant slept for an additional hour (Tr. 76-77). Thus, prior to receiving the March 21, 1998 call, he rested/slept for a total of five to six hours.

   Despite the Complainant's contention of fatigue, it is apparent that he was mentally coherent on this day. After his wife informed him of the call, he discussed the call with his wife, walked downstairs and reviewed his logs, and realized that he was called a few minutes prematurely (Tr. 76-79).

   The Complainant also failed to show that he "sought from the employer, and [was] unable to obtain, correction of the unsafe condition" as required by the STAA. 49 U.S.C. § 31105 (a)(2). On March 21, 1998, the Complainant rejected Mr. Doody's offer to reinstate the call to provide the Complainant with additional time to sleep (Tr. 248; JX 10).

Whether the Complainant's Refusal of the Work Assignments was Based on a Reasonable Apprehension of Serious Injury to Himself or the Public.

   The Complainant argues that he had a reasonable apprehension of serious injury to himself or the public. In support, he stated that he was sleepy when he refused the work calls and his condition would have worsened if he had accepted the calls. See Brief of Complainant at 17-18.

   The Respondent asserts that the Complainant's claims of sleepiness are insufficient as a matter of law to show a "reasonable apprehension of serious injury due to fatigue." According to the Respondent, the STAA does not prevent employers from enforcing reasonable work rules or protect a driver who fails to rest despite an adequate time to rest. The Complainant worked for the Respondent for ten years and should have been aware of the procedures and the importance of getting sufficient rest. See Brief of Respondent at 19-20.

   I find that the Complainant failed to show that a violation under § 31105(1)(B)(ii) occurred. A reasonable person in the Complainant's circumstances would not have had a reasonable apprehension of serious injury. The Complainant had at least six hours of sleep prior to receiving the December 10, 1997 work call (Tr. 29-30, 37, 126-128). On March 20, 1998, he rested/slept for approximately five to six hours (Tr. 73-77, 161-162, 182). He had forty-eight hours off work from March 19, 1998 to March 20, 1998, and slept for eight hours the evening of March 19, 1998 (Tr. 71, 160; JX 10).

   The legitimacy of the Complainant's fatigue is questionable. In both incidents, he failed to claim fatigue in his first contact with the Respondent. The facts surrounding the second incident highlight the lack of veracity.

   After being reawakened by his wife, the Complainant's first reaction was not to call the company and claim fatigue as would be expected, but to check his records in the hope that he could prove the company committed a violation of the regulations. A possible motive for this reaction is provided by Mr. Doody. He testified that the Complainant's first communication was to request the weekend off. Only after he learned he would only be given an extra two hours of rest, rather than the hoped for free weekend, did he say he was too fatigued to drive (Tr. 246-249).

Whether the Complainant Deliberately Made Himself Unavailable for Work.

   The Complainant argues that he did not deliberately make himself unavailable for work. In his opinion, he took reasonable measures to rest before he refused the two dispatch calls. He contends he did not act unreasonably when he cleaned his garage on December 10, 1997, and spent two hours at his wife's party on March 21, 1998. The Complainant explained that he slept nighttime hours from December 1, 1997 to December 9, 1997, and slept approximately eight hours on the evenings of December 7, 1997 and December 8, 1997. On December 10, 1997, he took a sleep break from 1:30 a.m. to 4:00 a.m. in the tractor cab. He then slept from 8:30 a.m. until approximately 12:00 or 1:00 p.m. that same day, but was no longer tired when he naturally woke. See Brief of Complainant at 21-24.

   Citing In the Matter of Albert Porter v. Greyhound Bus Lines, ARB Case No. 98-116; ALJ Case No. 96-STA-23, slip op. at 2 (1998), the Respondent asserts that the Complainant deliberately made himself unavailable for work because he had adequate time to rest, but failed to make reasonable attempts to be rested. According to the Respondent, the Complainant was off duty for over sixteen hours prior to receiving the December 10, 1997 work call. He was off duty for over forty-eight hours prior to the March 21, 1998 work call. The Complainant acknowledged that nothing prevented him from getting sleep during those two periods, except his inability or unwillingness to sleep. See Brief of Respondent at 9, 16-18.

   Even if the Complainant was fatigued, I find that he deliberately made himself unavailable for work. He had an ample opportunity to rest, but failed to do so. The STAA does not protect an employee who deliberately makes himself unavailable for work "by not taking advantage of his time off to become rested and available when called." Porter v. Greyhound Bus Lines, 1996-STA-23, 3 (ARB June 12, 1998).

   The Complainant earned forty-eight hours off on December 7, 1997 (JX 10). He returned home from his December 9, 1997 work assignment sometime between 7:15 a.m. to 8:30 a.m. on December 10, 1997 (Tr. 36-37, 126-128; JX 10). He was aware that he was eligible for a work assignment at 5:15 p.m. that night (Tr. 40-41). Thus, the Complainant had approximately eight hours and forty-five minutes to rest before he became eligible for a work call. He was also provided an additional six hours to rest after he became eligible because he was not called to work until 11:35 that night (JX 10).

   The Complainant argues that it was not unreasonable for him to clean his garage during the day December 10, 1997, and attend his wife's party on March 20, 1998. He explained that he attempts to "live a normal life by spending time with his family, working around the house, and other normal everyday activities." See Brief of Complainant at 2, 23.

   I do not find it unreasonable for a person to make time for his family and social life. It is unreasonable, however, for a person who operates a commercial motor vehicle to fail to set aside sufficient time to rest before work. It was the duty of the Complainant to act as if he was going to receive a work call at 5:15 p.m. on December 10, 1997, and at 1:44 a.m. on March 21, 1998. The facts show that he did not. By the time that the Complainant received the December 10, 1997 work call, he had fourteen hours and forty-five minutes to rest and clean his garage, but only slept from 8:30 a.m. to 12:00 or 1:00 p.m. that day (Tr. 37-39, 126-128). On March 21, 1998, he slept from 3:00 p.m. to 5:00 or 5:30 p.m. and did not obtain additional sleep until 9:30 p.m., four to four and one-half hours before he was eligible for the work call (Tr. 73-75, 161-162; JX 10). The fact that the Respondent telephoned him twenty-three minutes early is irrelevant. After the Complainant received the work call, he slept for an additional hour (Tr. 76-77). He failed to explain why this additional hour of sleep was not restful.

Whether the Complainant was disciplined for engaging in protected activity on December 10, 1997 and March 21, 1998.

   The Complainant argues that his refusals of the work calls are not a legitimate nondiscriminatory reason for the Respondent's adverse action. In his view, the Respondent's explanation for their adverse action is legally insufficient. See Brief of Complainant at 24.

    The Complainant maintains the Respondent had knowledge of his protected activities and took adverse action against him because of such activities. He asserts that he told the Respondent on December 10, 1997, that he needed to take a slide because he was sleepy and not physically and mentally able to operate a motor vehicle safely. After receiving a warning letter for refusing the December 10, 1997 dispatch call, he protested the letter. With regard to the March 21, 1998 work call, the Complainant said that he informed the Respondent that he was fatigued, in no condition to operate a motor vehicle, and needed more time to rest. The Respondent suspended him because he refused the call and he sent a protest letter. See Brief of Complainant at 18-20, 25. The Complainant points to the testimony of Mr. Olzewski to support this position. The fact that Mr. Olzewski admitted that the Complainant requested a slide and stated that he "needed additional time to rest" on December 10, 1997, shows that the Respondent had knowledge of the Complainant's protected activity. See Reply Brief of Complainant at 4.

   The Complainant argues that it was unnecessary for him to specifically state to the Respondent that he was "fatigued." He contends that his statements are sufficient to establish protected activity. See Brief of Complainant at 20-21.

   Although the Complainant may have told Mr. Olszewski on December 10, 1997, that he "needed additional time to rest," the Respondent argues that they were never placed on notice of the Complainant's protected activities because the Complainant never stated that he was "fatigued." The Respondent explained that in the trucking industry, there is a difference between "rest" time and "fatigue." Rest time is not necessarily spent sleeping. See Reply Brief of Respondent at 4.

   It is not necessary to decide what exact words a driver must utter to an employer in order to be deemed "fatigued." As stated above, I do not find the Complainant's testimony concerning his fatigue to be credible. In both incidents, he had time to notify the Respondent before the work call. The Complainant's allegations of fatigue were made only after he was given a work assignment. The facts do not demonstrate that the Respondent took adverse action against him for refusing to drive because of fatigue. The Respondent was justified in disciplining the Complainant because he did not follow company procedures. The Complainant failed to call off work before he received the dispatch calls on December 10, 1997 and March 21, 1998. Despite the fact that he had adequate rest, he refused the work calls. If the Complainant was in fact fatigued, it was by no fault of the Respondent. He deliberately made himself unavailable for work.

   In support of the veracity of his claim of fatigue, the Complainant says the number of hours he had off do not prove he was rested. He has a pattern of sleeping at night and claims that his attempts to sleep during the day are not restful. Cited as support are studies mentioned in the Federal Motor Carrier Safety Administration's (the "FMCSA") most recent rulemaking. The studies show that the body is subject to circadian rhythms proving that sleeping is more restful at certain times within the cycles. 65 F.R. 25553, 25541-25581.

   The final rule reflects the FMCSA's use of that information as it relates to the practicalities of interstate trucking. Those rules are codified at 49 C.F.R. Part 395. 68 F.R. 22456. They represent the hours of driving and off duty necessary to protect the motoring public. A trucking company that sets a dispatch system in conformity with the rules cannot be found to have committed a violation, absent extraordinary circumstances in which the company deliberately takes action that causes abuse of the rules.

   An example of such actions is when an employer places a driver "off duty" or "on duty (not driving)" for repeated periods. As a result, the driver becomes fatigued when he begins or continues to drive. See generally Fitzgerald v. Interactive Logistics, Inc. or NFI Interactive,2001-STA-52 (ALJ Nov. 13, 2002) (The Employer was found to have violated the hours of service regulations by requiring the employee to log in as "off duty" when he was actually "on duty (not driving))."

   In this case there is no claim that such circumstances exist. The Respondent's dispatch system is in full compliance with the letter and spirit of the regulations.

   The Complainant has been an interstate truck driver for many years. He has worked for the Respondent since 1988 (JX 10). He knows how the Respondent operates and has had years to adapt to their system.

   The Complainant had sufficient time to obtain adequate rest. It was his responsibility. The Employer was in compliance with the regulations and has a practical and efficient dispatch system. The company did not contribute in any way to the Complainant's alleged fatigue. If he is unable to adapt to this system, he should not be working for this Employer. The Respondent cannot and should not be expected to change their dispatch system to be consistent with the Complainant's sleeping habits.

Findings and Conclusions

1. The Complainant did not engage in protected activity on December 10, 1997. 49 U.S.C. §§ 31105(a)(1)(B)(i) and 31105(a)(B)(ii).

2. The Respondent did not discipline the Complainant for engaging in protected activity on December 10, 1997.

3. On December 10, 1997, the Complainant deliberately made himself unavailable for work.

4. The Respondent is not responsible for the Complainant's alleged fatigue on December 10, 1997.

5. The Complainant did not engage in protected activity on March 21, 1998. 49 U.S.C. §§ 31105(a)(1)(B)(i) and 31105(a)(B)(ii).

6. The discipline that the Complainant received from the Respondent relating to the March 21, 1998 incident was not due to the Complainant's engagement in a protected activity.

7. The Respondent did not cause or contribute to the Complainant's alleged fatigue on March 21, 1998.

8. The Complainant deliberately made himself unavailable for work on March 21, 1998. Accordingly,

   Because the Complainant, Larry E. Eash, failed to prove that Respondent, Roadway Express, Inc. violated the STAA, I recommend that the above-captioned claim be dismissed.

      GERALD M. TIERNEY
      Administrative Law Judge

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

APPENDIX A

The December 10, 1997 Incident

The March 21, 1998 Incident

[Editor's Note: Appendix B is not available on this electronic opinion]