DATE:  August 31, 1992
CASE NO. 92-STA-0018

IN THE MATTER OF

WILBERT L. GREATHOUSE,

          COMPLAINANT,

     v.

GREYHOUND LINES, INC.,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                       DECISION AND ORDER OF REMAND

     Before me for review is the July 2, 1992, [Recommended]
Decision and Order of the Administrative Law Judge (ALJ) in this
case arising under Section 405, the employee protection
provision, of the Surface Transportation Assistance Act of 1982
(STAA), 49 U.S.C. app. § 2305 (1988).  Neither party has
filed a brief as permitted by 29 C.F.R. § 1978.109(c)(2)
(1991).
     Complainant alleged that Respondent discharged him because
he refused to drive a bus in violation of the hours of service
regulations.  The STAA prohibits an employer from discharging an
employee for refusing to operate a vehicle in violation of a
Federal regulation, 49 U.S.C. § 2305(b), including the
hours-of-service regulations at 49 C.F.R. Part 395 (1991). 
See Ass't Sec'y of Labor and Hamilton v. Sharp Air
Freight Service, Inc., Case No. 91-STA-49, Dec. and
Order of Rem., July 24, 1992, slip op. at 1-2.
     The ALJ found that Complainant was discharged on June 18, 
1991, and that he filed his complaint by telephone on December 16,
1991, the 181st day following his discharge.  The ALJ recommended
dismissing the complaint because it was not filed within 180 days
of the discharge.
     Both the STAA, 49 U.S.C. § 2305(c)(1), and the
implementing 
[PAGE 2]
regulations, 29 C.F.R. § 1978.102(d)(1), require that a
complaint be filed within 180 days after the occurrence of the
alleged violation.  Although the 180 day limitation is subject to
equitable tolling, 29 C.F.R. § 1978.102(d)(2),(3);
see Hicks v. Colonial Motor Freight Lines, Case No.
84-STA-20, Sec. Dec. 10, 1985, slip op. at 7-12, Complainant has
not alleged that the limitation should be tolled in this case.
     Complainant argued initially that the date of termination
was June 25, 1991 (date of letter confirming his discharge), but
later indicated that he was discharged on June 18.  T. 258. 
Respondent confirmed that on June 18, 1991, Driver Manager Jasper
told Complainant he was fired.  T. 143.  Thus, the parties agree
that the discharge occurred on June 18, 1991.    
     There is no dispute that the telephone complaint was made on
Monday, December 16, 1991. [1]   See Court Ex. 1.  The
fact that Complainant made his telephone complaint on a Monday is
of critical importance because:
          [i]n computing any period of time under these
          rules . . . the time begins with the day
          following the act, event, or default, and
          includes the last day of the period,
          unless it is a Saturday, Sunday
          or legal holiday observed by the Federal
          Government in which case the time period
          includes the next business day.
29 C.F.R. § 18.4(a) (1991) (emphasis added). [2]   The ALJ
did not consider whether the complaint was timely filed because
the 180th day fell on a Sunday.  I find that the complaint was
filed on time, since the 180-day period included the next
business day, Monday, December 16, 1991.  See Stokes v.
Pacific Gas & Elec. Co./Bechtel Power Corp., Case No. 84-ERA-
6, Sec. Order of Remand, Feb. 19, 1987, at slip op. 2-3
(construing application of  29 C.F.R. § 18.4(a) to limitation 
period of the Energy Reorganization Act).
     Both parties had the opportunity at the hearing to make a
case on the merits.  In view of the ruling on timeliness,
however, the ALJ did not discuss the merits in his Recommended
Decision.  Since there is conflicting testimony on issues in the
case and the ALJ heard the witnesses and observed their demeanor,
the ALJ should rule in the first instance on witness credibility
and the merits.  There is no need to take additional evidence.    
     Accordingly this case is REMANDED to the ALJ to make a
recommended decision on the merits of the complaint.  It is
anticipated that the ALJ will be able to complete this further
review and submit a recommended decision and order within 
60 days.
     SO ORDERED.

[PAGE 3]
                              LYNN MARTIN
                              Secretary of Labor

Washington, D.C.





[ENDNOTES]
           
[1]   I take administrative notice that in 1991, December 16 fell
on a Monday.

[2]   The Rules of Practice and Procedure for Administrative
Hearings Before the Office of Administrative Law Judges, 
29 C.F.R. Part 18, apply "except to the extent that they are
inconsistent with a rule of special application as provided by
statute, executive order, or regulation," in which case the
latter is controlling.  29 C.F.R. § 18.1(a).  Here, neither
the statute, the implementing regulations, nor an executive order
establishes the method for computing the 180 day limitation
period for filing a complaint.