U.S. Department of Labor Administrative Review Board
200 Constitution Ave, NW
Washington, DC 20210
ARB CASE NO. 99-030
ALJ CASE NO. 98-STA-26
DATE: April 22, 1999
In the Matter of:
ASSISTANT SECRETARY FOR
OCCUPATIONAL SAFETY AND
HEALTH, UNITED STATES
DEPARTMENT OF LABOR,
PROSECUTING PARTY
and
JEFFREY A. FREEZE,
COMPLAINANT,
v.
CONSOLIDATED FREIGHTWAYS,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Jeffrey A. Freeze, York, Pennsylvania, pro se.
For the Department of Labor:
Henry L. Solano, Esq., Joseph M. Woodward, Esq., Donald G. Shalhoub,
Esq.,
Daniel J. Mick, Esq., Mark J. Lerner, Esq., Maria Van Buren, Esq. U.S. Department of Labor, Washington, D.C.
FINAL DECISION AND ORDER
This case arises under Section 405, the employee protection provision, of
the
Surface Transportation Assistance Act of 1982 (STAA), as amended, 49 U.S.C. §31105
(1994). On December 24, 1998, the Administrative Law Judge (ALJ) issued a Recommended
1 As discussed infra,
CF initially terminated Freeze's employment following the events of January 9, 1998.
Hearing Transcript (HT) at 43-44 (Freeze). The termination action was changed to a sixty-day
suspension without pay pursuant to the decision of an arbitration panel that disposed of a
grievance
filed by Freeze under his union contract. Id.; HT at 57-59 (Freeze), 117-18 (Kudrick).
2 Evidentiary exhibits
cited herein are referred to as follows: Government Exhibit, GX; Employer's Exhibit, EX.
3 Freeze testified
that the discussion with Baer concerned the 70-hour rule. HT at 36-37; see HT at 34-
35. Baer testified that the discussion concerned the ten-hour daily limit on driving hours, rather
than the 70-hour eight-day on-duty prohibition on driving, both of which are provided by 49
C.F.R. §395.3. HT at 94-99, 103-04; see n.6 infra. Although the
ALJ credited Freeze's testimony, R. D. & O. at 2, the ALJ's recommended decision states that
Freeze was concerned with the ten-hour daily limit on driving hours, rather than the 70-hour rule.
R. D. & O. at 4. Based on the record in this case and the ALJ's other findings regarding the 70-
hour rule, we construe the R. D. & O. statement on page 4 concerning the ten-hour rule to be a
clerical error.
4 Based on the facts
then available to Freeze, see Yellow Freight Systems, Inc. v. Reich, 38 F.3d 76, 83 (2d
Cir. 1994), we agree with the ALJ's conclusion that Freeze could rely on a projected trip time in
excess of two hours in drawing his conclusion that the York/Allentown run would put him in
violation of the 70-hour rule. R. D. & O. at 4; see HT at 108 (Kudrick, testifying that
it takes "[a]pproximately two hours, two hour and fifteen minutes" to drive from
York
to Allentown); EX 3.
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 any other cause, as to make it unsafe for him/her to begin or continue to
operate the commercial motor vehicle. However, in a case of grave emergency
where the hazard to occupants of the commercial motor vehicle or other users of the
highway would be increased by compliance with this section, the driver may
continue to operate the commercial motor vehicle to the nearest place at which that
hazard is removed.
(a) Except as provided in §§ 395.1(b)(1), 395.1(f), and
395.1(i), no motor carrier shall permit or require any driver used by
it to drive nor shall any such driver drive:
(1) More than 10 hours following 8 consecutive hours off duty; or
(2) For any period after having been on duty 15 hours following 8
consecutive hours off duty.
(b) No motor carrier shall permit or require a driver of a commercial
motor vehicle to drive, nor shall any driver drive, regardless of the
number of motor carriers using the driver's services, for any period
after --
(1) Having been on duty 60 hours in any 7 consecutive days if the
employing motor carrier does not operate commercial motor vehicles
every day of the week; or
(2) Having been on duty 70 hours in any period of 8 consecutive
days if the employing motor carrier operates commercial motor
vehicles every day of the week.
49 C.F.R. §395.3 (1998).
7 At the time Freeze
declined the final assignment, he had not slept for more than 24 hours. HT at 23. When Freeze
had last slept prior to the morning of January 9, he had slept twelve hours, obviously in an
attempt
to prepare himself to be fully rested when next called by CF. HT at 20-23 (Freeze); GX 5, 6, 7;
see generally Somerson v. Yellow Freight System, Inc., ARB Case Nos. 99-005/-036,
ALJ Case Nos. 98-STA-9/-11, Feb. 18, 1999, slip op. at 12-19 (addressing the "serious
issue" of driver fatigue and cases involving that issue that have been decided under the
STAA).
8 We also note that
Freeze's raising of a concern about the hours of service rules when he declined Baer's assignment
of the Alexandria, Virginia, run qualifies as a protected complaint under the STAA. See
LaRosa, slip op. at 3-5, and cases there cited.
9 Section
405(b)(3)(B) of the STAA is implemented by Section 1978.109(a) of the pertinent regulations,
which provides that a prevailing complainant's remedy should include an award of "the
complainant's costs and expenses (including attorney's fees) reasonably incurred in bringing and
litigating the complaint." 29 C.F.R. §1978.109(a) (1998); see also 29
C.F.R.§1978.104(a)(1998) (regarding issuance of preliminary order by Ass't Sec'y).