DATE: April 18, 1995
CASE NO. 94-STA-0046

IN THE MATTER OF

RICKY M. POLGER
          COMPLAINANT,

     v.

FLORIDA STAGE LINES,
          RESPONDENT.


BEFORE: THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     Before me for review are the [Recommended] Partial Decision
and Order (R.D. and O.), dated November 22, 1994, and the
[Recommended] Decision and Order (R.D. and O.), dated
December 19, 1994,[1]  issued by the Administrative Law Judge
(ALJ) in this case arising under the employee protection
provision of the Surface Transportation Assistance Act of 1982
(STAA), 49 U.S.C.A. § 31105 (West 1994), and its
implementing regulations, 29 C.F.R. Part 1978 (1994).
     Complainant Polger alleges that he was discharged from his
position as an over-the-road bus driver for Florida Stage Lines
(FSL) because he declined an assignment on the grounds that he
was too fatigued to continue driving.  The complaint alleges that
the discharge was in violation of § 31105(a)(1)(B), as well
as Department of Transportation (DOT) regulations at 49 C.F.R.
§§ 392.3 and 395.3(b)(2).  The ALJ found that
Complainant's discharge was based on activity which is protected 
under the STAA.  Following a thorough review of the entire record,
including the parties' post-hearing submissions before me, I
agree with the ALJ's decisions, as modified below.
                             BACKGROUND
[PAGE 2]
     The findings of fact by the ALJ are supported by substantial
evidence on the record as a whole and are, therefore, conclusive.
29 C.F.R. § 1978.109(c)(3)(1994).  Polger was fired by FSL
on May 19, 1994 when he declined to accept a bus driving assignment
for the next day on the grounds that he was too fatigued.  The
ALJ found that Complainant would have been working in violation
of the regulations limiting a commercial motor vehicle driver
from being on duty more than 70 hours in any eight consecutive
days, if he made the assigned trip.  Moreover, the record
evidence clearly indicates that Complainant customarily exceeded
the regulatory "on-duty" limitations.
                             DISCUSSION
     The applicable DOT regulation states that:
          No motor carrier shall permit or require a
          driver of a commercial motor vehicle . . . to
          drive for any period after . . . [h]aving
          been on duty 70 hours in any period of 8
          consecutive days if the employing motor
          carrier operates everyday of the week.

49 C.F.R. § 395.3(b)(2).  The parties disagree as to what
constitutes being "on duty"[2]  within the above captioned
regulation.  Respondent alleges that Polger was actually off duty
during some of the time calculated by the ALJ as being "on duty."
     Respondent argues that on duty hours should be confined to
driving hours, and that at all other times Polger was off duty.
I disagree.  For instance, at all times Polger listed as on duty
during the eight days immediately preceding his discharge he was
required to remain with the bus, or in the vicinity; to attend to
the needs of the group he was transporting, to maintain or fuel
the bus, or to attend to breakdowns.  I agree with the ALJ that
this pattern was typical of Polger's employment.  R.D. and O. at
4.  Even during the day when Polger returned to base he was
standing by to pick up a group in a few hours and that is,
properly, considered on duty time.  Id.
     In addition, Polger engaged in protected activity when he
refused to take an assignment on the basis of his belief that he
was too fatigued to make the run safely.  49 C.F.R. § 392.3
states:
          No driver shall operate a motor vehicle, and
          a motor carrier shall not require or permit a
          driver to operate a 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 to begin or continue
          to operate the motor vehicle.
[PAGE 3]

I find that Polger was discharged in violation of the STAA
whistleblower provision because he refused to accept a dispatch
that would have caused him to violate the applicable hours of
service regulations.  See Jimmy D. Settle v. BWD Trucking
Co., Inc., and Red Arrow Corp., Case No. 
92-STA-16, Sec. Dec., May 18, 1994, slip op. at 2.
     In ordering Complainant's back wage compensation, the ALJ
determined that Respondent's logs and the records of Polger's    
compensation constituted the "most complete evidence available."
R. D. and O. at 2.  The ALJ calculated a per trip pay rate of
$81.29 by dividing Polger's $6,422 earnings by the 79 trips he
made in 1994.  The ALJ then made a number of assumptions as to
how many trips complainant missed because of his unlawful
discharge, i.e. nine trips in May and two trips in December.  
R. D. and O. at 2.  It was not necessary for the ALJ to determine
the number of trips per individual month Polger would have made
had he not been discharged.  Additionally, such a calculation of
damages makes it difficult to award Polger the full amount of
back pay owed.
     The ALJ should have estimated the number of trips Polger
made per week, multiplied that number by the $81.29 per trip
calculation and figured an estimated weekly pay.  In 1994 Polger
made 79 trips.  That works out to 1.52 trips per week (79  52 =
1.5192).  Multiplying Polger's average pay per trip, $81.29,
times his average weekly number of trips, 1.52, results in an
average weekly wage of $123.56.  The ALJ added to Polger's loss
an estimate of $50 per week in tips.  The ALJ made a credibility
assessment that Polger's estimate of weekly tips was
reasonable.[3]  I accept that determination.  Therefore,
complainant's per week wage loss is $173.56.
     Complainant is therefore entitled to back pay in the amount
of $173.56 from the time of his discharge on May 19, 1994 until
such time that a bona fide offer of reinstatement is (or was)
made.  Dutile v. Tighe Trucking, Inc., Case No. 93-STA-31,
Sec. Dec., Nov. 29, 1993, slip op. at 8, 9.  Polger's interim earnings
of $725.00 should be deducted.  In addition, Complainant is
entitled to interest on the back pay awarded, calculated in
accordance with 26 U.S.C. § 6621 (1988).  Dutile,
slip op. at 9.  The ALJ's back wage award is modified accordingly.
     Finally, in response to the R. D. and O., Complainant
submitted an attorney's fee application requesting $2,940.80.
This amount was awarded, R. D. and O. at 3, but has been
supplemented by a request dated March 31, 1995, to include fees
for the legal work attendant to this appeal.  FSL has not
objected to the supplemental fee request.  I find the amount
requested therein, ,395.00, to be reasonable under the
circumstances and hereby add it to the amount previously awarded.
     SO ORDERED.
                              ROBERT B. REICH
                              Secretary of Labor
Washington, D.C.


[ENDNOTES]
           
[1] 
  Supplemented by a January 3, 1995 ALJ's Order Correcting Errors
in the R.D. and O.

[2] 
  On duty time is defined by the regulations as including time
"waiting to be dispatched unless the driver has been relieved
from duty by the motor carrier."  49 C.F.R. § 395.2(1).

[3] 
  Credibility findings that "rest explicitly on an evaluation
of the demeanor of the witnesses" may be accorded exceptional
weight by a reviewing court.  Ertel v. Giroux Brothers
Transportation, Inc., Case No. 88-STA-24, Sec. Ord. Feb. 16,
1989, slip op. at 12, n.7.