Date: March 22, 1995
Case No. 94-STA-21
In the Matter of:
ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH,
Prosecuting Party,
and
ERNEST S. BOYLES,
Complainant,
v.
HIGHWAY EXPRESS, INC.
Respondent.
Before: FLETCHER E. CAMPBELL, JR.
Administrative Law Judge
RECOMMENDED DECISION AND ORDERPreliminary Statement
On January 14, 1993, Ernest S. Boyles, the Complainant, was
discharged as an over-the road truck driver by Respondent,
Highway Express, Inc., for refusal to complete a dispatch.
Complainant contends that he was terminated in violation of
Section 405(b) of the Surface Transportation Assistance Act
(hereinafter "STAA"), 49 U.S.C. app. 2305(b), because the
dispatch was illegal under the United States Department of
Transportation (hereinafter "DOT")
[PAGE 2]
regulations. Complainant requests payment for lost wages and
benefits and attorney fees and costs.[1]
The Secretary of Labor, through a duly authorized agent,
investigated the complaint, and on January 29, 1994, determined
that Boyles' complaint was meritorious. Highway Express Inc.
filed a timely appeal on February 25,1994, and the matter was
referred to this office for a formal hearing. Such a hearing was
conducted in Charlotte, North Carolina on June 14, 1994, at
which time the parties were afforded a full opportunity to
present evidence and argument.
Issue
The sole issue to be determined in the matter is whether the
dispatch Complainant refused violated the "when" clause of
Section 405(b) of the STAA.
Stipulations
1. At all times material herein, Respondent was engaged in
interstate trucking operations and maintained a place of business
in Richmond, Virginia. In the regular course of this business,
Respondent's employees operated commercial motor vehicles in
interstate commerce principally to transport cargo. Respondent
was a commercial motor carrier.
2. Respondent was at all times material herein a person as
defined in Section 401(4) of STAA, 49 U.S.C. Section 2301 (4).
3. Complainant, Ernest S. Boyles, was hired by Respondent
on August 24, 1992 as a driver of a commercial motor vehicle,
tractor trailer, with a gross weight rating in excess of ten
thousand pounds.
4. At all times material herein, Complainant Ernest Boyles
was an employee in that he was a driver of a commercial motor
vehicle having a gross vehicle weight rating of ten thousand or
more pounds used on the highways in interstate commerce to
transport cargo, and in that he was employed by a commercial
motor carrier and, in the course of his employment, directly
affected motor vehicle safety, citing Section 4012 (a) of the
STAA, 49 U.S.C. Section 2301 (2)(a).
[PAGE 3]
5. Respondent is subject to the United States Department
of Transportation, Federal Highway Administration regulations
found at 49 C.F.R. Parts 392, 393 and 395.
6. Complainant Ernest Boyles was fired by Respondent on
January 14, 1993.
7. On March 9, 1993, Complainant Ernest Boyles filed with
the Secretary of Labor a timely complaint of discrimination under
the STAA, which complaint was investigated by the Secretary whose
investigation resulted in the issuance of the Secretary's
Findings and Order adverse to the Respondent on January 29, 1994.
8. The Secretary's Findings and Order of January 29, 1994
were timely objected to by Respondent.
9. Complainant earned $551.00 per week while employed by
Respondent.
10. For the period from January 14, 1993 through March 4,
1994, Complainant earned $8,417.55, exclusive of unemployment
compensation.
Statistics and Distances
1. Complainant made three trips from Richmond, Virginia to
Avenel, New Jersey in 7.0, 6.0 and 5.5 hours respectively (DX 5,
7, 10).
2. The trip from Richmond, Virginia to Edison, New Jersey
is 312 miles (Tr. 198). The trip from Richmond, Virginia to
Avenel, New Jersey is 318 miles (Tr. 198).
3. Exit 10 on route I-295 north leads to Edison. It is
six miles from Exit 10 to Respondent's terminal (Tr. 199). Exit
12 on route I-295 north leads to Avenel. It is between one and
two miles from Exit 12 to the Avenel warehouse delivery point
(Tr. 200). There are eight miles between Exit 10 and Exit 12 on
route 295 north. Turnpike speed for this trip is 55 miles per
hour; municipal zones are 35 miles per hour; and the speed limit
in residential zones is 25 miles per hour (Tr. 200).
Findings of FactI. The Parties
1. Complainant, Ernest S. Boyles, has worked in the
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trucking business as a truck driver for approximately thirty
years (Tr. 27). He was hired by Respondent, Highway Express
Inc., in August, 1992 as an over-the-road-truck driver
(Stipulation No. 3). For the past four years, he has instructed
over 1,400 drivers at the Charlotte Truck Driver Training School
in Charlotte, North Carolina. Their curriculum included DOT
hours-of-service regulations (Tr. 28).
2. Respondent, Highway Express, Inc., is an employer
engaged in interstate trucking operations (Stipulation No. 1).
Respondent maintains a place of business in Richmond, Virginia,
for the principal purpose of transporting goods by commercial
motor vehicle in interstate commerce (Stipulation No. 1).
II. The Events Leading Up to Complainant's Termination
3. Complainant reported to work at Respondent's Richmond
terminal at 12:00 a.m. on the morning of January 14, 1993 (Tr.
29). Under DOT regulations, Complainant is permitted to work up
to seventy (70) hours of on-duty time in any eight-day period.
(Tr. 30). This includes time other than driving time (Tr. 30).
In the seven-day period preceding the trip in question,
Complainant had accumulated 61 hours of on-duty time. He had a
remainder of nine available on-duty hours until midnight, January
15, 1993 (Tr. 30).
4. When Complainant reported to the dispatcher, he learned
he was scheduled to make a trip to Avenel, New Jersey. (Tr. 31).
The trip from Richmond, Virginia to Avenel, New Jersey is 318
miles (Tr. 198). Although the route is left up to the
discretion of the driver, the trip is comprised largely of
highway driving (Tr. 122). Complainant had made the Richmond-
Avenel run three times prior to the trip in question in 7.0 , 6.0
and 5.5 hours respectively (DX 5, 7, 10). He expressed concern
that he would not have enough remaining on-duty hours to complete
his assigned trip (Tr. 31). The dispatcher, Tim Moody, refused
to change Complainant's schedule and, in fact, did not have
authority to change his schedule (Tr. 31-2, 42).
5. When Complainant made a mechanical check of his truck,
he determined that there was a problem with the fifth wheel (Tr.
32). It took him approximately one hour to complete his check
and to resolve the problem with the wheel (Tr. 32). This time
was logged as on-duty time. Logging this one-hour delay as on-
duty time was proper (Tr. 207). Complainant accepted the
assignment and left the terminal at approximately 1 a.m. (Tr.
37).
[PAGE 5]
6. Complainant took a half hour break in Bear, Delaware
pursuant to DOT rules and regulations and then continued on his
route (Tr. 42).
7. At about 7:00 a.m., Complainant called the Richmond
terminal to speak with Avid Napier, who was the only person who
had authority to change his trip (Tr. 43). Mr. Napier was the
supervising dispatcher at the time. However, when Complainant
called, no one was at the terminal. He then called Highway's
terminal at Edison and told them that he would probably be out of
hours by the time he reached the terminal. When Complainant
finally got through to Richmond, he spoke with Mr. Allen
Dougherty. Complainant explained his situation and requested
permission to take the load to Edison (Tr. 44). Mr. Dougherty
told Complainant that, if he had time to get to the Edison
terminal, then he should take the load directly to Avenel (Tr.
44). Complainant refused (Tr. 45). Mr. Napier got on the phone
and Complainant repeated the situation. He again refused to take
the load to Avenel, and Mr. Napier told him that he no longer
worked for Highway Express (Tr. 177). Mr. Napier instructed
Complainant to take the truck to Edison and leave it.
Complainant complied (Tr. 45).
8. The Edison dispatcher, Lenny, initialled Complainant's
log book, which indicates an arrival time of 9:00 a.m.(Tr. 46).
At that point, Complainant had one half hour of on-duty time
available to him.
III. Complainant's Version of the Events which Lead to His
Termination
9. Complainant explained what his duties and
responsibilities were and would have been had he completed his
assigned trip on January 13-14 from Richmond to Avenel.
Complainant received his dispatch and proceeded to make a
mechanical check of his truck (Tr. 32). This check was
considered "on-duty time" (Tr. 207). Complainant was then
required to drive the load to its assigned destination, Avenel,
New Jersey (Tr. 31). Upon arrival, he had to wait until the
terminal was manned (7:00 a.m.) and then back the truck into its
assigned bay (Tr. 48). He would then "dolly the truck down,
unhook it, secure it, chop it" and ensure that it would be safe
for a person to unload it (A person who unloads trucks is called
a lumper)(Tr. 49).
[PAGE 6]
10. Complainant was then required to take his truck off the
Avenel terminal's property and wait for the lumper to tell him
when the trailer was ready to be removed (Tr. 49). It was
Complainant's understanding that company policy required the
driver to wait until the lumper finished so that the trailer
could be removed (Tr. 52)(Compare conflicting testimony of Allen
Dougherty at Tr. 148). Complainant would then check the bill of
lading and other paperwork and pay the lumper (Tr. 54). Next, he
would rehook the trailer, redolly it up, attach the airlines and
pull it outside the bay. Finally, Complainant would close and
lock the trailer doors and pull the trailer outside the gate
(Tr. 54). It generally takes three to four hours to unload a
trailer at the Avenel terminal (Tr. 97).
11. It is Complainant's position that he could not have
fulfilled all of his responsibilities on the January 13-14
Richmond-Avenel run without running out of hours and, thus,
violating the DOL regulations. It is also his position that it
would not have been acceptable for him to leave the truck at
Avenel after he had run out of hours (Tr. 60)(Compare
conflicting testimony of Allen Dougherty at Tr. 148). Therefore,
Complainant refused to take the truck to Avenel, and, instead,
dropped it at Respondent's Edison terminal (Tr. 45, 86).
12. Complainant was aware that a city driver would pick up
his load at Edison and bring it to Avenel (Tr. 85). He also
testified that, if it were possible for him to bring the truck to
Avenel, there was no reason a city driver could not have met him
there and carried out the remainder of his responsibilities (Tr.
87).
13. Complainant testified that he had falsified his logs in
the past on trips from Richmond to Avenel (Tr. 38). He had, in
fact, been reprimanded for this by Respondent (Tr. 38).
Complainant testified that, in his opinion, logging a half hour
at the Avenel terminal for unloading is impossible and illegal
(Tr. 38). He stated that he had logged this way in the past to
accommodate the company, but that he refused to illegally log his
time any more (Tr. 38).
IV. Testimony of James Allen Dougherty
14. James Allen Dougherty is a former dispatcher of
Employer, Highway Express (Tr. 141). He was employed by Highway
Express from March, 1992 through March, 1994 (Tr. 141). He is
presently employed by Kalorrie Express as its terminal manager in
Richmond, Virginia (Tr. 140). Mr. Dougherty has been in the
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trucking business for fourteen years (Tr. 142).
15. Mr. Dougherty instructed Mr. Moody to dispatch
Complainant on the Richmond-Avenel run on the evening of January
13-14 (Tr. 142). At that time, Mr. Dougherty understood that
Complainant had 7 1/2 hours available to him to make the run
(Tr. 143). (Complainant actually had nine on-duty hours
available to him at the beginning of the run (Tr. 30)). The
company average indicated that drivers generally made the run in
6 1/2 hours, which would leave Complainant with an hour of on-
duty time after reaching Avenel (Tr. 143). Mr. Dougherty
testified that once Complainant reached Avenel, he would go off
duty, and his on-duty hours would no longer be a factor (Tr.
144).
16. Complainant called dispatcher Dougherty at the Richmond
terminal at approximately 7:00 a.m. on the morning of January 14
(Tr. 144). Complainant informed him that he had thirty minutes
of driving time available to him and that he was presently
fifteen minutes south of Edison, New Jersey (Tr. 145).
Complainant told Mr. Dougherty that he did not have time to go to
Avenel (Tr. 145). Mr. Dougherty instructed him to proceed to
Avenel, where he would be relieved of duty (Tr. 145). By the
statement "relieved of duty," Mr. Dougherty meant that, upon
arrival at Avenel, Complainant would have no responsibility to
the company whatsoever (Tr. 145-46).
17. In general, after arriving at Avenel, a driver was
required to go to the warehouseman with his bills of lading and
be assigned a door to unload. The driver would then back the
trailer to the door, drop it, and pull out from under it (Tr.
148). At that point, drivers generally logged off-duty and were
relieved from all responsibility until the trailer was empty,
when they would rehook it to their truck and drive it off the
terminal's property.
18. If a driver arrived at Avenel with no available hours,
Mr. Dougherty testified, he would either a) get a road driver to
bring the out-of-hours driver's truck to the door or b) send a
city driver from the Edison terminal to bring the truck to the
door (Tr. 147). Measures were available to ensure that, if a
driver ran out of hours, his paperwork and other duties would be
handled by someone else so that a violation of hours would not
occur (Tr. 148).
19. At the time that Mr. Dougherty spoke with Complainant,
he believed that Complainant had enough hours to get to Avenel
[PAGE 8]
(Tr. 149). If another driver had to be called in
to finish Complainant's run, Complainant would not have had to
wait for that person to take over for him because all of
Respondent's trucks were keyed alike (Tr. 163)
20. Mr. Dougherty recounted an instance prior to
Complainant's termination where a driver who had run out of hours
called in to advise that he was out of hours (Tr. 161). The
dispatcher called the terminal and arranged to have someone pick
up the trailer (Tr. 161).
21. At no time did Mr. Dougherty suggest that Complainant
exceed his on-duty time (Tr. 150).
V. Testimony of Avid Napier
22. Avid Napier is the Manager of line haul and dispatch
in Respondent's business (Tr. 171). He has been in that
position since Respondent's business began, approximately four
`years ago (Tr. 172). Mr. Napier has been in the trucking
business for thirty-five years (Tr. 172).
23. Mr. Napier schedules runs from Richmond to Avenel
approximately five to fifteen times per week (Tr. 172). He
scheduled Complainant for the trip in question (Tr. 179, 184).
He testified that, the run took drivers approximately 6-6 1/2
hours to complete (Tr. 173). Mr. Napier testified that, when
scheduling a trip, he takes into account that a driver would log
off duty after reaching Avenel (Tr. 184).
24. Mr. Napier testified that, when Complainant called him
on the morning of January 14, he was instructed to go to Avenel
and log off duty (Tr. 184). Complainant refused to comply with
Mr. Dougherty's and Mr. Napier's directive; therefore, he was
terminated (Tr. 177).
VI. Testimony of James Belshee
25. James Belshee resides in Orange, Virginia and is
employed by Intertrans Carrier Company, a private fleet trucking
company, as the director of safety and personnel (Tr. 195-96).
Mr. Belshee was also the director of safety and personnel at
Highway Express from January, 1992 through April, 1994 (Tr. 196).
His responsibilities at Highway Express included regulatory
compliance, loss prevention, risk management, security, cargo
claims, workers' compensation, group health insurance and various
[PAGE 9]
other duties (Tr. 196). Mr. Belshee has 26 years of experience
in the trucking industry, mostly in loss prevention and safety
(Tr. 197).
26. Mr. Belshee first learned that Complainant had been
terminated on the morning of January 14, through a conversation
he had with Mr. Napier and Mr. Dougherty (Tr. 202). Mr. Belshee
reviewed the decision to terminate Complainant and upheld it
(Tr. 202).
27. Complainant was not terminated because he made the same
trip in less time prior to this occasion; however, the
inconsistency of the instant trip, when compared to other trips
made by Complainant and by other drivers caused Mr. Belshee to
affirm the termination (Tr. 204, 213). It was Mr. Belshee's
opinion that Complainant had not been completely honest with
respect to his record keeping, hours of duty status and the time
involved in taking the Richmond-Avenel trip (Tr. 219). In this
particular case, Mr. Belshee believed that there was some wrong
doing on the part of Complainant (Tr. 203-4).
28. Mr. Belshee did not speak to Complainant, nor did he
review Complainant's log for the trip (Tr. 203-5).
29. Mr. Belshee testified that his opinion as to the off-
duty loading process at Avenel is as follows: "The driver is
relieved of care, custody and responsibility for the equipment
and the cargo. He can be relieved from duty for the duration of
the time involved in the off-loading process" (Tr. 223). By
this, Mr. Belshee understands that a driver is free to pursue
activities of his own choosing within reason, taking into
consideration the average time necessary to complete the off-
loading process (Tr. 224).
30. In upholding Mr. Napier's decision to terminate
Complainant, Mr. Belshee was not influenced by what transpired in
the telephone call between Complainant and Mr. Napier on the
morning of January 14. In addition, he was not influenced by
Complainant's refusal to drop the load at the Avenel terminal
(Tr. 225).
31. Mr. Belshee did not have final authority to uphold
Complainant's termination. After he upheld the decision, it was
reviewed by Respondent's Vice President of operations, Jim
Ferrell (Tr. 228).
VII. Testimony of John Proctor[PAGE 10]
32. John Proctor is a former over-the-road-truck driver for
Respondent Highway Express. He was employed by Respondent from
July, 1992 through February, 1994 (Tr. 107). Mr. Proctor left
Highway Express under good terms and has been employed by Archer
Daniels Midland since February, 1994 (Tr. 107).
33. Mr. Proctor testified that he made the Richmond-Avenel
trip many times in an average time of six hours (Tr. 108).
Proctor testified that, upon arrival at Avenel, he generally
logged between 15-30 minutes as on-duty, non driving time (Tr.
109). This time reflected the time it would take to deliver his
bills of lading, back the truck into the bay, cut the seal,
unhook the trailer and pull off the terminal's property (Tr.
109).
34. Mr. Proctor indicated that he logged off duty because
he wasn't held responsible for anything during the time the truck
was being unloaded (Tr. 111). He did not distinguish between
off-duty time in general and time specifically spent in the
sleeper berth (Tr. 111).
35. Mr. Proctor testified that drivers at Highway Express
were paid by the mile (Tr. 116). Therefore, regardless of
whether a driver logged the time during which lumpers unloaded
his truck as on or off-duty time, he would not get paid for that
period (Tr. 116). However, if that period was logged as on-duty
time, a driver would have less hours available during which he
could drive and, therefore, be compensated (Tr. 120).
36. Mr. Proctor stated that there were occasions when he
told the dispatcher that he would be unable to complete a
particular run because he lacked sufficient on-duty hours (Tr.
128). On those occasions, Employer told him to "get on up there
and give us a call; we'll call the customer" (Tr. 129). The
company asked him to do the best he could and accommodated him
(Tr. 129). Mr. Proctor gave several examples where he was
compensated for lay overs (Tr. 129-30). He testified that he
was never pressured by Highway Express to file his logs any way
but legally (Tr. 114).
Discussion
This is an action under the employee protection provisions
of the Surface Transportation Act, 49 U.S.C. app. 2305(b).
Ernest S. Boyles, the Complainant, an over-the-road driver for
Highway Express, Inc., alleges that his termination on January
[PAGE 11]
14, 1993 for refusing to complete a dispatch discriminated
against him for engaging in protected activity in violation of
the Act because the dispatch he refused to complete was illegal
under United States Department of Transportation (hereinafter
"DOT") regulations[2] . Boyles filed a complaint with the
Secretary, claiming a violation of Section 405(b) of the Act, (49
U.S.C. app. 2305(b)), which prohibits the discharge of drivers
who refuse to operate a vehicle under either of the following
circumstances: 1) when such operation would constitute a
violation of federal law (the "when clause"), or 2)
because of the reasonable apprehension of injury to self or the
public due to unsafe conditions (the
"because clause").[3] The issue to be resolved is whether the
dispatch refused by Complainant violated the "when" clause of the
statute, as Complainant argues.
To establish a prima facie violation of Section
405(b) of the STAA, the burden in on Complainant to show 1) that
he was engaged in protected activity; 2) that he was subject to
adverse action; 3) that there was a casual link between the
protected activity and the adverse action of the employer and 4)
that the employer knew of the protected activity when it took the
adverse action. Moon v. Transport Drivers, Inc., 836 F.2d
226, 229 (6th Cir. 1987).
I. Complainant was not Engaged in Protected Activity
Complainant received his assignment from dispatch on the
evening of January 13, 1993, just before midnight (Tr. 31). At
that time he had nine remaining hours of on-duty time until
midnight, January 15. The proposed trip from Richmond, Virginia
to Avenel, New Jersey took, on average, 6-6 1/2 hours to complete
(Tr. 108, 143, 175)[4] . The parties stipulated that it would
have taken several hours to unload the trailer (Tr. 51).
Complainant informed dispatcher Tim Moody that he felt he
would not have sufficient on-duty hours to complete the run (Tr.
31). Mr. Moody did not have the authority to change his schedule
(Tr. 31). Complainant accepted the assignment and prepared to
leave. While making a mechanical check of his truck, Complainant
discovered a problem with the fifth wheel (Tr. 32). It took
approximately one hour for him to complete the check of the truck
and resolve the problem with the wheel (Tr. 33-6).
Complainant left the terminal at 1:00 a.m. on January 14,
1993 (Tr. 37). He stopped for a half hour off-duty break in
Bear, Delaware (Tr. 42). He continued the run and stopped
[PAGE 12]
around 7:00 a.m. to inform dispatch that he would probably be out
of hours by the time he reached the terminal (Tr. 43). He
requested permission to drop the load at Respondent's Edison
terminal. Permission was denied, and Complainant was instructed
to continue to the customer's Avenel terminal, where he would be
relieved of duty (Tr. 145). Complainant refused and was
terminated (Tr. 177).
At that point, Complainant had 2 1/2 hours of on-duty time
available to him and was approximately 75 miles from Edison (Tr.
94). There are 8 miles between the Edison exit and the Avenel
exit and 1-2 miles from the Avenel exit to the terminal
(Statistics and Distances No. 3). Therefore, at 7:00 a.m.,
Complainant would have had to drive 85 miles to arrive at the
Avenel terminal in 2 1/2 hours. The speed limit for all but two
of those miles was 55 mph (Statistics and Distances No. 3). The
evidence indicates that there is no doubt that, barring an
accident, Complainant could have arrived at the Avenel terminal
within his remaining on-duty hours[5] . Consequently, the
question to be decided is whether additional duties would have
been required of him upon arrival and how long those duties would
have taken to complete.
II. Requirements and/or Duties to be Performed by
Complainant upon Arrival at Avenel
Generally, upon arrival at the Avenel terminal, drivers
were required to perform several additional duties. Upon
arrival, a driver would turn over the bills of lading for the
load he was carrying to the warehouse man (Tr. 148). He would
then be assigned a bay and was responsible for backing the truck
into the bay (Tr. 49). The driver would cut the seal, unhook
the trailer, and pull the truck off the terminal's property (Tr.
109).
All parties are generally agreed as to the driver's duties
thus far. However, there is some confusion as to the duties and
the responsibilities of the driver at this point. It is
Complainant's position that Respondent's company policy requires
a driver to remain with the truck in readiness to remove the
trailer from the customer's dock either in the event of an
emergency or when the lumper is finished (Tr. 52, 55).
Complainant testified that the driver is the only person
designated to move the trailer (Tr. 52). This time, according to
Complainant, is considered on-duty time (See definition of
on-duty as defined by 49 C.F.R. 395.2).[6]
Respondent's employees and former employees testified that
[PAGE 13]
drivers normally log off duty the moment they arrive at Avenel
(Tr. 147). Mr. Dougherty testified that a driver has to "get out
of the truck, turn the paperwork in, drop the trailer and go to
bed" (Tr. 158). When scheduling trips, Mr. Napier stated that
he took into consideration the fact that drivers log off duty
when they get to Avenel (Tr. 184). Former driver John Proctor
testified that, when he arrived in Avenel, he generally unhooked
the trailer, went to get breakfast, and then went to sleep (Tr.
110). He went on to state that, regardless of whether he was in
the sleeper berth or somewhere else, he still logged the time as
off duty because he was not responsible for anything (Tr. 111).
It appears that, through strict construction of the
regulation, both Complainant and Respondent are correct in their
interpretations of how a driver should log his time. If a driver
remained with his truck, in readiness to operate the vehicle, he
would log that time as on duty. See 49 C.F.R. 395.2 (5).
If, however, he retired to the sleeper berth, that time would be
considered off duty. See 49 C.F.R. 395.2(4). If a driver
went to get something to eat or engaged in other activities not
defined by 49 C.F.R. 395.2, that time would be off duty.
It seems unlikely that company policy required a driver to
remain with his truck at Avenel, as three of Respondent's current
and former employees alike testified that it was customary for
drivers to log off duty upon arrival at the terminal. It is
especially telling that two of the three witnesses are no longer
with the company, and they have nothing to gain or lose by their
testimony. Therefore, I find that it was company policy and
normal practice that a driver was not required to remain with his
truck. If, however, a driver elected to remain with his vehicle
in readiness to move it, he should, of course, log that time as
on-duty time.
Regardless of what Complainant thought was required of him
upon arrival at Avenel, the facts of this case render his
perceptions moot. Complainant had sufficient time to drive the
load from Richmond to Avenel without violating DOT rules
regarding maximum hours. He may or may not have run out of hours
at the Avenel terminal, depending on what course of action he
chose when he got there; i.e., he could have remained on-duty, in
readiness to move the trailer, or logged off duty and either
slept in the sleeper berth or went to get something to eat[7] .
However, at 7:00 a.m., when he last spoke to the Richmond
dispatcher, Complainant was advised that, once he arrived in
Avenel, Respondent would ensure that he was immediately relieved
of duty (Tr. 145, 177, 184). The evidence conclusively proves
[PAGE 14]
that it was possible for measures to be taken to avoid a
violation of Complainant's maximum hours (See Findings of
Fact Nos. 18, 19, 36)[8] . In fact, Complainant himself admits
that, if he had had enough hours available to get the truck to
Avenel, there would have been no reason why a city driver could
not have taken over there (Tr. 87). Complainant made his call
at 7:00 a.m. and did not arrive in Edison until 9:00 a.m. Had he
continued to Avenel, he would have arrived slightly later.
Respondent had two hours to arrange for a driver to relieve
Complainant at the Avenel terminal. In fact, even if Respondent
was not able to locate a driver in this time, Mr. Dougherty
testified uncontradicted that, because all of Respondent's trucks
were keyed alike, Complainant would not have had to wait for the
replacement (Tr. 163).
Based on these facts, I find that Complainant did not engage
in a protected activity. The fact that Complainant believed in
good faith that, if he continued to the Avenel terminal and
fulfilled his duties there, he would be in violation of the
regulations offers him no protection[9] . He is only entitled to
refuse a dispatch if he is 1) out of hours at the time of
dispatch or 2) at the scheduled start of the dispatch it is
apparent that it would be impossible for him to complete delivery
in the allotted time. As a result, I find that Complainant has
failed to sustain the burden of proving the first element of his
prima facie case and that his claim must be denied.
Recommended Order
IT IS ORDERED that:
Complainant's claim is denied.
FLETCHER E. CAMPBELL, JR.
Administrative Law Judge
[END N OTES]
[1] The following citations to the record are used herein:
CX-Complainant's Exhibit
RX-Respondent's Exhibit
Tr.-Transcript
[2] 49 C.F.R. 395.3(b)(2) states:
No motor carrier shall permit or require a driver of a
commercial motor vehicle, regardless of the number of motor
carriers using the driver's services, to drive for any period
after . . .
2) Having been on duty 70 hours in any period of 8 consecutive
days if the employing motor carrier operates motor vehicles every
day of the week.
[3] Section 405(b) provides in full:
No person shall discharge, discipline or in any manner
discriminate against any employee with respect to the employee's
compensation, terms, conditions, or privileges of employment for
refusing to operate a vehicle when such operation constitutes a
violation of any Federal rules, regulations, standards, or orders
applicable to commercial motor vehicle safety or health, or
because of the employee's reasonable apprehension of serious
injury to himself or the public due to the unsafe condition of
such equipment. The unsafe conditions causing the employee's
apprehension of injury must be of such nature that a reasonable
person, under the circumstances then confronting the employee,
would conclude that there is a bone fide danger of an accident,
injury, or serious impairment of health, resulting from the
unsafe condition. In order to qualify for protection under this
subsection, the employee must have sought from his employer, and
have been unable to obtain, correction of the unsafe condition.
[4] Messrs. Proctor, Dougherty and Napier testified that the trip
from Richmond to Avenel would take between 6-6 1/2 hours. Mr.
Belshee testified that it would take approximately 7 1/2 hours
(Tr. 200-1).
[5] Complainant's testimony that he did not have the available
on-duty hours to go to Avenel (Tr. 86) is simply not credible in
light of an examination of the distances involved coupled with
the time he had available to him. It is apparent that, based on
his undisputed arrival time of 9:00 a.m. at the Edison terminal
with thirty minutes of on-duty time available to him, Complainant
could have lawfully travelled the additional six miles it would
have taken him to arrive at Avenel had he not gone to Edison.
(See Statistics and Distances No. 3. It is six miles from
Exit 10 on I-295N to the Edison terminal. It is twelve miles
from Exit 10 on I-295N to the Avenel terminal. Complainant drove
six miles to the Edison terminal and arrived at 9:00 a.m. Had he
not done so, and continued to Avenel direct, he would likely have
reached the terminal before 9:30).
[6] Section 395.2 reads as follows:
On-duty time means all time from the time a driver
begins to work or is required to be in readiness to work until
the time he/she is relieved from work and all responsibility for
performing work. On-duty time shall include:
1) All time at a carrier or shipper plant, terminal,
facility, or other property, or on any public property, waiting
to be dispatched, unless the driver has been relieved from duty
by the motor carrier;
2) All times inspecting equipment as required by
§§ 392.7 and 392.8 of this chapter or otherwise
inspecting, servicing, or conditioning any commercial motor
vehicle at any time;
3) All driving time as defined in the term driving
time in this section;
4) All time, other than driving time, in or upon any
commercial motor vehicle except time spent resting in a sleeper
berth as defined by the term sleeper berth of this
section;
5) All time loading or unloading a vehicle, supervising, or
assisting in the loading or unloading, attending a vehicle being
loaded or unloaded, remaining in readiness to operate the
vehicle, or in giving or receiving receipts for shipments loaded
or unloaded;
6) All time spent performing the driver requirements of
§§392.40 and 392.41 of this chapter relating to
accidents.
7) All time repairing, obtaining assistance, or remaining in
attendance upon a disabled vehicle;
8) Performing any other work in the capacity of, or in the
employ or service of, a common, contract, or private motor
carrier; and
9) Performing any compensated work for any nonmotor carrier
entity.
[7] Complainant argues that this case is controlled by
Transfleet Enterprises Inc. v. Boone, 987 F.2d 1000, 1003
(4th Cir. 1992), which he cites for the proposition that a
violation of the Act may be shown even though the driver was not
out of hours at the time of dispatch, but "at the scheduled start
of the trip, it was apparent that the delivery could not have
been legally made on time." In the instant case, the delivery
could have been made on time. See Statistics and
Distances No. 3; Findings of Fact No. 3. As Complainant was not
required by the company to remain with his truck in an on-duty
status during the time it was being unloaded, it would be
improper to find that the trip was illegal from the outset,
although there is some question as to whether Complainant would
have had any available time to remove the trailer from the
customer's terminal when the unloading process was complete.
However, based on past records of Complainant and others, barring
an accident or unexpected and prolonged traffic delays,
Complainant would have been able to finish the delivery within
the nine hours available to him.
[8] Complainant's bald assertion that he could not have simply
left the truck at Avenel (Tr. 60) is unsupported by other
testimony in this case. Mr. Dougherty testified as to plausible
alternatives available to Complainant should he have run out of
hours on arrival at Avenel. (See Findings of Fact No. 18,
19.) Mr. Dougherty offered an alternative to Complainant during
their 7:00 a.m. phone call on January 14 (Finding of Fact No.
16). Complainant did not offer any rebuttal evidence to the
effect that Mr. Dougherty's alternatives were not practicable.
In addition, former driver John Proctor described situations
where he had run out of hours and was accommodated by the company
in similar situations. (See Finding of Fact No. 36.) I
find Mr. Proctor's testimony to be persuasive because it draws on
specific experiences. In addition, Mr. Proctor and Mr. Dougherty
are more credible than Complainant because they no longer work
for Respondent and have no obvious bias one way or the other.
[9] The Secretary has held that Section 405(b) protects a driver
who refuses a dispatch "when such operation constitutes a
violation of any Federal rules." (Emphasis added). This
interpretation is deemed correct "if it reflects a plausible
construction of the plain language of the statute and does not
otherwise conflict with Congress' expressed intent."
Boone, 987 F.2d at 1004, citingRust v.
Sullivan, 111 S.Ct. 1957, 1767 (1991).
It is clear in the language of the statute that the "when
clause" protects a driver when he refuses to make an actual
violation of the law. The argument that an actual violation is
required is strengthened by the construction of the "because
clause" which immediately follows the "when clause." The
"because clause" requires drivers to have a "reasonable
apprehension" on the driver's part to invoke the protection of
the statute. If it were Congress' intent to provide for a
subjective interpretation in the "when clause," it could have
done so. As Congress has not so provided, it is evident that, to
invoke the protection of the "when clause," an actual violation
of the law must occur or it must be apparent at the start of a
trip that it would be impossible to complete the trip without
violating the law.
