BACKGROUND

   On or about March 26, 1988, Larry E. Eash, Sr. ("complainant") was hired by Roadway Express, Inc. ("respondent") as a commercial motor vehicle driver. (RX 1). Complainant filed a timely complaint with the Secretary of the Department of Labor ("Secretary") on March 10, 1999, alleging that respondent had discriminated against him in violation of Section 31105 of the STAA. On June 22, 2000, the Secretary determined, after an investigation of the above-captioned complaint, that the allegations lacked merit. On June 26, 2000, complainant objected to the Secretary's findings and requested that the claim be referred to the Office of Administrative Law Judges.

   The claim was set for a formal hearing in on March 9, 2001. By agreement of the parties, that hearing date was vacated and rescheduled for June 25, 2001 in Akron, Ohio.

STIPULATIONS

   The parties have stipulated to the following facts. Accordingly, I find that:

1. The United States Department of Labor, Office of Administrative Law Judges possesses jurisdiction over the parties and the subject matter of this claim.

2. Complainant is an employee, as defined in 49 U.S.C. § 31105.

3. Respondent is engaged in interstate trucking operations and is an employer subject to the STAA, 49 U.S.C. § 31105.

4. Respondent employed Complainant to operate commercial motor vehicles with a gross weight vehicle rating of 10,0001 pounds or more on the highways in interstate commerce since March 26, 1988.

5. Complainant previously filed a complaint with the Secretary of Labor (1998-STA-28) that alleged that respondent had disciplined complainant and discriminated against him in violation of 49 U.S.C. § 31105.

6. Administrative Law Judge Gerald M. Tierney issued a Recommended Decision and Order on May 11, 2000 that granted respondent's motion for summary decision on complainant's previous STAA claim (1998-STA-28).

7. The complaint giving rise to the docket number 1998-STA-28 was related to an alleged violation of a commercial motor vehicle safety regulation.

8. On January 14, 1999, complainant refused a dispatch from respondent that would have taken complainant from Copley, Ohio to Pittsburgh, Pennsylvania. In response to complainant's refusal, respondent took an adverse employment action which consisted of the issuance of a letter of warning to complainant on January 19, 1999. The warning letter was issued for "failure to report to work after accepting a work call on January 14, 1999."

9. Respondent notified complainant on April 19, 1999 that a five (5) day suspension had been imposed due to complainant's "overall work record." This record included, but was not limited to, complainant's failure to report to work on January 14, 1999.

10. Complainant filed a complaint with the Secretary of Labor alleging that he had been discriminated, disciplined and discharged in violation of 49 U.S.C. § 31105 by respondent.

11. The Secretary of Labor issued findings and an order on June 23, 2000.

12. Complainant filed and served objections to the Secretary's findings and order on June 26, 2000.

13. The time punches on complainant's time card dated May 12, 1998 were in reality for the date of June 12, 1998.

TR 11-13, 283.

HEARING TESTIMONY

Larry Eash

   Complainant further alleges that he did not receive any instructions indicating that he was to call time critical before leaving the Gerstenlager on September 11, 1998. (TR 39). Complainant stated that was instructed to call the relay coordinator to provide him with the number on the bill of lading. (TR 39). Complainant explained that the trailers taken to Gerstenlager were empty and were to be loaded at Gerstenlager's location. (TR 39). Complainant stated that he did not receive verbal or written instructions as to the load being time critical. (TR 40).

   Complainant made the run to Gerstenlager with 4 other drivers. (TR 106). One of these other drivers also was cited for failing to call time critical. (TR 106). Complainant admitted that he had taken time critical loads before and that on those occasions, he was given a cell phone. (TR 108). Complainant went on to state that he called time critical from Monroeville, Pennsylvania and that he was instructed to call time critical 4 hours out and 2 hours before arrival at his destination. (TR 113).

   Complainant replied to the warning letter for failure to follow instructions with a protest letter dated September 17, 1998. (TR 42). Complainant followed the protest letter with a revised protest letter in January, 1999. In the revised letter, complainant indicated that he had been provided with a cellular phone. (TR 43). Complainant admitted that this action indicates that the load is time critical. (TR 43). Complainant stated that the revision was necessary because he had unintentionally left out details that he felt needed to be included in the protest letter. (TR 115).

   Complainant testified that on the morning of January 14, 1999, he had finished a dispatch that originated in Copley, Ohio on January 13, 1999. (TR 44). Complainant's dispatch had taken him from Copley to Pittsburgh, Pennsylvania. (TR 44). Complainant testified that he left Copley at 6:30 p.m. on January 13, 1999 with the anticipated dispatch time of 2.5 hours. (TR 44-45). Complainant arrived in Pittsburgh at 10:30 p.m. (TR 45). Complainant did not meet the allotted dispatch time because of "extremely dangerous" weather. (TR 45).

   Complainant explained that his usual dispatch starts on 6:30 p.m. on Monday, Wednesday, and Friday. At this time, complainant's "bid" called for complainant to travel from Copley to Pittsburgh, then from Pittsburgh back to Copley, and then return to Pittsburgh where complainant would be given the opportunity to rest. (TR 46-47). Complainant stated that while he was in Pittsburgh on January 13, 1999, snow was falling which subsequently changed to freezing rain. (TR 47). Complainant stated that he experienced difficulty considering the weather conditions and phoned Ed Tasz. (TR 48). Complainant reported to Mr. Tasz that the weather made conditions too dangerous to drive and that complainant would return once the freezing rain changed into snow. (TR 49). Complainant stated that Mr. Tasz told him to return as soon as he could leave the facility. (TR 49).

   Complainant experienced a 1.5 hour delay in Pittsburgh. (TR 52). At that point, the weather had changed to snow and the snow was covering the ice. (TR 52). Complainant described the weather conditions as "treacherous." (TR 52). Complainant safely arrived back in Copley at approximately 2:30 a.m., but did not meet the allotted running time. (TR 53-54). Complainant was not dispatched for his return trip to Pittsburgh on the morning of January 14, 1999. (TR 55). Complainant stated that he discussed the weather conditions with Mr. Tasz who Mr. Tasz decided that complainant would not return to Pittsburgh at that time. (TR 56 & 127).

   Complainant then returned to his home. (TR 56). Complainant testified to the observations that he made once he awoke after returning home on the morning January 14, 1999. Complainant stated that he observed a sleet and snow mixture falling at the time that he awoke on January 14. (TR 57). Complainant stated that he then consulted the weather reports on the radio. (TR 58). According to complainant, the reports indicated that freezing rain was moving into the area of complainant's home. (TR 58). Complainant then consulted the weather reports on the television. Complainant testified that he watched the report of a remote news crew reporting from Interstate 76 in East Akron. (TR 58). The crew was reporting that the road conditions were "extremely treacherous, not to travel unless it was an emergency situation, because they had freezing rain." (TR 58).

(TR 59).

   Complainant explained that he asked Todd to dismiss him from the next dispatch and not require complainant to drive again until Friday at 6:30 p.m., his normal dispatch time. (TR 61). Complainant stated that he was told by Todd that his request could not be granted. (TR 61). Todd explained to complainant that other drivers were reporting to work and being dispatched. (TR 61). Todd indicated that none of the other drivers reported any problems. (TR 61).

   Complainant testified that he made a second call to respondent on January 14, 1999. (TR 61). This call occurred at 7:30 p.m. (TR 62). Complainant went on to explain that during the time between the two telephone calls, he had observed the weather conditions around his home, noticed that the ice had "built up," and that the traffic on the highway near his home had "slowed to a crawl"and some had pulled off of the road. (TR 62). Complainant stated that the freezing rain started around his home at 7:00 p.m. (TR 65). Complainant stated further that he continued to monitor the weather conditions around his home and that the television was reporting that people were warned against traveling except in the case of emergencies. (TR 65). Complainant stated that he was aware of the weather conditions in Copley because of Copley's proximity to Akron which was the subject of the news report. (TR 129).

   Complainant also stated that he asked Mr. Tasz if he knew the weather conditions at the terminal and Mr. Tasz reported stated that he did not know. (TR 130). Complainant proceeded to tell Mr. Tasz that he would not be able to make his run to Pittsburgh that evening because the television crew had reported freezing rain. (TR 79). Complainant stated that Mr. Tasz told him to "do what you have to do." (TR 79). Complainant then told Mr. Tasz that he was going to return home and Mr. Tasz told him "okay." (TR 80). Complainant admitted that Mr. Tasz never excused complainant from reporting to work. (TR 145). Complainant stated that he made it clear to Mr. Tasz that he "feared for [his] life." (TR 154).

   Complainant explained that he did not believe that it would have been safe to operate a commercial motor vehicle on the evening of January 14, 1999. (TR 80). Complainant bases this decision on the weather conditions that he observed, as well as the weather reports of freezing rain, the traffic patterns on the highway near complainant's home, personal observations of the freezing rain, the accumulation of ice on the windows and mirrors, and the ice on the road surface. (TR 81). Complainant did not feel that he would have been able to operate a commercial motor vehicle on the road surfaces as they existed at that time. (TR 82).

   Complainant stated at the time of the hearing that he was more concerned with the conditions between Copley and Pittsburgh, however, in his prior deposition testimony, complainant testified that he could not drive because of the conditions he was personally observing. (TR 143-44). Complainant did explain that he was unaware of the weather conditions at the terminal in Copley. (TR 132). Additionally, complainant admitted that he did not know the driving conditions between Copley and Pittsburgh. (TR 132). Complainant also admitted that drivers are permitted to make safety decisions once they begin to drive and that complainant has never been disciplined by respondent for stopping his truck for safety reasons. (TR 134- 35).

   A warning letter was issued to complainant for his failure to report to work after accepting a work call on January 14, 1999. Complainant replied with a protest letter dated January 22, 1999. (TR 83). Complainant testified that the letter stated that he contacted Mr. Tasz "for the purpose of informing him that [he] could not safely report for work." (TR 145).

   Complainant was subsequently notified of a pending "local hearing" to discuss his work record. (TR 83). A "local hearing" involves a meeting between the union and the company in which it is determined whether discipline of the employee is warranted. (TR 85). The hearing resulted in a 5 day suspension because of the "accumulation of warning letters that prompted a hearing." (TR 86).

   Complainant alleges that he lost approximately $900.00 as a result of the 5 day suspension. (TR 87).

   Complainant wishes this Court to award to him $900.00 in gross wage loss, attorney fees, travel expenses for travel to depositions and hearings, incidental fees, and the expungement of the warning letters. (TR 88).

Mark Rosendale

   Mark Rosendale testified at the hearing in this matter. Mr. Rosendale is a relay manager with respondent and has been since March, 1996. (TR 176). Mr. Rosendale has been employed by respondent for 19 years. (TR 176). Before serving as relay manager, Mr. Rosendale was the district administrative manager. (TR 218). Mr. Rosendale testified that he has known complainant for approximately 5 years and would consider complainant to be a "pretty safe driver." (TR 218).

   Mr. Rosendale explained the safety procedures employed by respondent and the policy surrounding designating a driver as "captain of the ship." (TR 176). Mr. Rosendale explained the "captain of the ship" theory as allowing the drivers, if

they feel that the weather is unsafe or unsuitable to be driving in, that they have the opportunity to pull off the road and take a safe haven until the, until the weather clears. [Respondent] also shut lanes down, and what I mean by that is that we will discontinue dispatching based on weather reports that we have. If we feel that the conditions are such that it's not safe, the roads are not safe to put our drivers out there, then we'll quit dispatching to those destinations.

(TR 176). Mr. Rosendale stated that the driver is in the best position to determine if the equipment can be safely operated. (TR 220).

   Mr. Rosendale went on to explain the procedures employed by respondent when dealing with hazardous weather conditions. Mr. Rosendale stated that respondent engages in some investigation which includes weather reports from the National Weather Service, reports from other terminals along the routes, reports from drivers, and reports from highway patrols. (TR 177).

   Mr. Rosendale stated that respondents engage the services of Accu-Weather to monitor the weather conditions. (TR 178). The reports also show the progression of the weather. (TR 178). Mr. Rosendale went on to explain that the reports are received "several times a day." (TR 178). On January 14, 1999, respondent received an Accu-Weather report (RX 21) detailing snow from Buffalo, New York into the New England states. (TR 178). The report showed that the middle area of the map was experiencing snow and ice and the bottom area was experiencing sleet and freezing rain. (TR 178). Mr. Rosendale stated that Copley was in the middle section of the map. (TR 222). However, Mr. Rosendale points out that Copley was on the trailing edge of the weather system at 3:00 p.m. (TR 250).

   The decision as to whether a terminal or lanes will be closed to inclement weather is customarily made by a coordinator. (TR 227). The decision is made on the information discussed above. (TR 227). Mr. Rosendale stated that a driver is expected to begin his assigned route and stop if unsafe conditions arise. (TR 246). Mr. Rosendale clarified that a driver would not be sent out on a run if it was believed that dangerous conditions existed. (TR 251). Mr. Rosendale also testified that a driver would not be called to work if respondent had received notification of a severe weather condition. (TR 252).

   Mr. Rosendale went on to explain a tonnage report contained in the record in this claim. (TR 179 & RX 22). A tonnage report shows the "tonnage out of our break bulk area, our district, that the satellite terminals that we pick up freight that comes into us." (TR 179). Mr. Rosendale examined the tonnage report for January 13 and 14, 1999. (TR 180). Mr. Rosendale stated that the tonnage for both of these days was under the expected average, but that shipping is always slower in January. (TR 180). Mr. Rosendale did state however, that when there is bad weather, the tonnage numbers will be lower. (TR 223). Mr. Rosendale also explained, that pursuant to the collective bargaining agreement, that respondent is only permitted to use railway transportation to ship cargo if all of respondent's drivers are working or unavailable. (TR 181).

   Mr. Rosendale went on to discuss the pay cards and logs of eleven drivers that drove at various times and in various places on January 14, 1998. (TR 181-94). None of these documents indicate the weather conditions experienced by the drivers and none of the drivers testified at the hearing. Mr. Rosendale stated that it is the customary practice of drivers to complain about weather conditions on the log or the pay card. (TR 227).

   Mr. Rosendale went on to explain the procedure employed when an employee grieves a suspension. (TR 196). A disciplinary hearing is conducted in which both the union and the company present the evidence surrounding the disciplinary action. (TR 196). The employer can ask for a suspension and the employee is free to grieve the suspension, if it is approved. (TR 196). If an employee chooses to grieve the suspension, the claim goes before the Ohio Joint Area State Committee (hereinafter "OJSC"). (TR 196).

   The OJSC is an executive board comprised of representation of the Teamsters as well as the company. (TR 197). Before the OJSC, both sides present their claim and the committee decides whether the imposition of the disciplinary action was appropriate. (TR 197). Complainant's grievance was denied by the OJSC. (TR 198). Mr. Rosendale testified on cross-examination that the decision issued by the OJSC does not include any rationale for the decision. (TR 207). There is also no appellate body after the OJSC. (TR 207).

   Mr. Rosendale also testified that complainant was not permitted to have an attorney at the OJSC hearing as per the terms of the collective bargaining agreement. (TR 207). Complainant was represented by the union's business agent at the OJSC hearing. (TR 207). The business agent is elected by the union membership. (TR 207). Additionally, the OJSC does not examine any potential violations of the STAA. (TR 208).

   Complainant received a suspension for his activities in the 9 months prior to the hearing. (TR 199). Under the terms of the collective bargaining agreement, only the previous 9 months can be reviewed. (TR 199). Mr. Rosendale testified that any of the incidents giving rise to the disciplinary action alone would not have been enough to warrant a suspension, however, taken together the suspension was warranted. (TR 199-200).

   Mr. Rosendale went on to explain the procedure concerning time critical loads. Mr. Rosendale explained that "time critical of exclusive use" is the quickest way to move freight. (TR 200). This type of shipping guarantees that the shipment will arrive by a certain agreed upon time or the customer is not required to pay for the shipping. (TR 200). Mr. Rosendale testified that 4 drivers were sent to Gerstenlager in September, 1998. (TR 200). The drivers were sent with empty trailers that were loaded at Gerstenlager and the freight was hauled from there. (TR 201). Mr. Rosendale explained that it is important for the drivers to call time critical because the agreed upon time for the delivery begins to run at the time that the freight is picked up. (TR 201).

   Mr. Rosendale testified that the drivers going to Gerstenlager were instructed to call time critical. (TR 202). Mr. Rosendale admitted however that he did not give the instructions to complainant personally. (TR 209). Mr. Rosendale stated that it is standard procedure for drivers who are carrying time critical loads to call once the freight ha