to be followed if a driver is taken ill after he accepts a load but before he starts driving. See infra. There is also some question if a driver must report for work unless he has already driven the 50 hours a week or 10 hours a day he is permitted to drive by Department of Transportation (DOT) rules or whether he is free not to report for a load assignment i.e. take time off prior to "accepting" a load.

    Drivers are paid by the load. If they complete loading within a pre-set time limit they are paid additional money for loading, otherwise not. This is known as incentive loading. If drivers take more than the time preset for loading they may apply for "delay" time by showing that the delay was due to circumstances beyond their control. Delay pay apparently is difficult to get. See infra.

    There is an annual equipment pick at which time the drivers pick the truck which they expect to drive that year. That truck is considered the driver's truck. However, when a driver's truck is temporarily not available because it is being repaired or for other reasons, the driver of that truck is temporarily assigned to drive another truck, if one is available. That second truck is known as a "spare". Complainant is known to dislike driving spares because he has had bad experiences with them.

    Complainant has been employed as a truckaway driver by Respondent at its Jessup, Maryland facility since 1978. In June 1983, Complainant suffered a work related injury to his knee for which he was paid for 27 1/2% for the loss of use of his left leg. To correct the malfunction of the knee, Complainant underwent two surgeries to his knee one on August 15, 1983 and one on June 1, 1984. The latter surgery was performed by Dr. Jaworski who has remained his treating physician. According to Dr. Jaworski's testimony which agreed with that of Complainant, Complainant's knee will become painful and swollen if subjected to prolonged climbing, bending, stooping and kneeling. Dr. Jaworski has prescribed three kinds of pain medication for Complainant to take which are in order of strength: Flexuril Percocet and Percodan. Flexuril is a muscle relaxant, the other two are codein deriavatives. All of them slow down reaction time and make the ingester drowsy and sleepy. Once Complainant's knee has flared up, he has to stay off if it, apply heat and get a good night's sleep to make it functional again.

    On July 22, 1982 Complainant was discharged when he refused to take a load claiming he was ill. Complainant grieved his discharge through the Union and the discharge was rescinded upon presentation by Complainant of a Doctor's certificate confirming his illness.

    On September 30, 1985 Complainant called Philip Speck, the Respondent's Operations Manager from the road. Speck asked Complainant to bring his truck to the repair shop that evening for its annual preventive maintenance. Complainant requested that his truck be ready the next morning as he did not like driving spares. Speck said that if Complainant's truck was not ready a spare was available for Complainant, to drive. Around 5:30 a.m., of the next morning Complainant who lives about a 15 minute drive from the Respondent's Jessup facility, called Dispatch and was told that his truck was not finished and that he would be assigned a spare the same model as his truck. After arriving at Jessup at 6:30 a.m. Complainant put his personal belonging in the spare, performed the required pre-trip inspection of his vehicle and did the necessary paperwork. At 7 :00 a.m. he went to dispatch where he was informed that his assignment was to make two trips that day to Washington area dealers.

filled it out to show that Complainant had refused a truck a 12:36 and was discharged. Fauver and Weltch both testified that they did not discuss the matter at all with each other prior to Weltch's making out the PAR.

    After Complainant got home he attempted to arrange an appointment with Dr. Jaworski. Dr. Jaworski told Complainant that he could not see him until October 15, but that there was no need for any consultation as Complainant's difficulty was chronic and would respond to the medication and treatment already prescribed. Complainant made an appointment for October 15.

A. Jurisdiction.

    (a) Jurisdictional Requirements of STAA. The Secretary proved that Complainant was an employee of the Respondent. when asked by whom he had been then "employed" Complainant named Respondent (TR. 18). Moreover the PAR refers to Complainant as an employee (R. Exh. 23) and the grievance procedure is one that the union contract provides for employees. Accordingly I find that Complainant was an employee of Respondent.

    While it is true that there is no direct testimony or evidence that the vehicle driven by the Complainant has a gross weight of 10,000 or more pounds the indirect evidence clearly establishes that fact. Complainant testified that the rig he drove consisted of a tractor and carrier which, when loaded carried seven passenger cars or light trucks. Respondent was required by DOT to keep records to comply with its regulations. Because of this strong indirect evidence, I on September 17, 1986 issued an order to Show Cause within 7 days thereof why I should not take judicial notice of the fact that the vehicle driven by Complainant had a gross weight of 10,000 pounds or more. As no response to this order has been received and as all the evidence indicates that the equipment assigned to Complainant weighes 10,000 pounds or more I so find.

    (b) DOT rather then DOL jurisdiction. Respondent also argues that this court has no jurisdiction because in its view Secretary of Labor has been deprived of jurisdiction over the determination of what constitutes unsafe driving conditions by the Interstate Commerce Act and the Occupational Safety and Health Act . The STAA was passed later than the laws cited by Respondent and to the extent that there is a conflict must be presumed to have superceded them. However I do not believe that such a conflict exists.

    Section 405(b) of the STAA in relevant part provides:

No person shall discharge, discipline, or in any manner discriminate against an employee with respect to the employee's compensation terms, conditions, or privileges or 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 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 bona 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 this employer, and have been unable to obtain, correction of the unsafe condition.

    49 U.S.C. 392.3 promulgated by the Department to Transportation provides in relevant part:

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.

    It is the Secretary of Labor's and Complainant's position that Complainant's ability to drive was so impaired by noontime of October 1, 1985 that he was no longer able to drive safely so that Respondent's termination of his employment when he refused to drive his assigned load constituted a violation of § 405(b) of the STAA.

    Paragraph 405(b) of that act addresses a problem for which the ICA provides no remedy, i.e. discrimination in employment by an employer against an employee who complains to the authorities about safety violations and/or refuses to drive unsafe equipment or while ill. The STAA gives the Secretary of Labor the authority to remedy such discrimination. No one argues that the Secretary of Labor has the power to set standards different from those set by the Secretary of Transportation, his only function is to provide a forum to protect the rights of employees who

the testimony of Respondent's witness Morrison he was willing to take the spare on the road even though it had cracked deck posts and was only kept from doing so by Morrison's order to have the carrier repaired. Speck testified that when he conversed with Complainant around 11:00 a.m. concerning the broken deck Complainant had loaded and he showed no disinclination to drive his scheduled trip. Accordingly, I find that at least until 11:00 a.m. on October 1, 1986 Complainant was willing to drive his assigned load.

    The question now arises whether Complainant actually became physically too impaired before 12:00 noon when he first told Fauver that he felt ill and wished to go home or whether Complainant, after that morning's mishaps, decided to go home in a fit of pique and that the excuse of physical impairment was a made-up after thought. To support its contention that it was an after thought Respondent in part relies on the testimony of its supervisors that Complainant did not complain about his health earlier in the day and that no one observed either Complainant's swollen knee and/or any limp. Complainant testified that his leg did not start bothering him until after he had loaded his truck for the last time, when the deck collapsed on the carrier and that his knee got progressively worse thereafter The medical evidence as well as Complainant's testimony establishes unequivocally that bending, lifting and climbing will stress Complainant's knee. By 11:30 a.m. Complainant had continuously engaged in those activities for five hours without rest or even an opportunity to sit down. Thus the fact that Complainant did not complain about any incapacity until about 11:30 a.m, see infra, has no significance in assessing the validity of that complaint.

    Nor is there any significance in the fact that no one saw Complainant's swollen knee. Complainant wore a uniform with long pants which would not show whether the knee was swollen and Respondent's supervisors at no time inspected the knee.

    Complainant testified that he was beginning to limp after 11:00 a.m. and that his limp got progressively worse. Respondent's witnesses Schellenschlager, Fauver and Weltch, all of whom had seen Complainant after 11:00 a.m. testified that he walked normally without a limp. However, it does not appear that any of these witnesses observed Complainant walking any distance. Their testimony involved brief conversations they had with Complainant during which there would not have been any extensive

walking. A limp, unless it is very pronounced, will not always be noticed immediately, especially, where, as here, the focus of attention would have been on what Complainant said and not on his physical movements. I, therefore, see little significance in the fact that Respondent's witnesses did not observe Complainant's limp.

    Respondent also urges that Complainant did not inform Weltch of any illness until after Weltch had refused to grant him permission to leave when the vehicle he was assigned to drive was not ready to leave five hours after Complainant had started to load. However, Complainant testified that he had initially informed Weltch of his difficulty with his knee and asked to be sent on the road or excused. While Weltch denied having had this conversation he did testify to having had two conversations with Complainant after Complainant had turned his vehicle into the repair shop after 11:00 a.m. to have the broken deck stops repaired. I consider it most unlikely that Complainant would not have mentioned any indisposition, either real or feigned, as soon as he felt he wanted to go home. Complainant, according to Respondent's Exhibit #9, had been discharged five times in the year preceding his final discharge and been reinstated every time at the request of the union. He had been discharged in 1982 and reinstated. Loading supervisor Morrison testified that Complainant was known to use a tape recorder and camera to record his dealings with Respondent. it is unbelievable that such a seasoned veteran of personnel wars would not immediately mention the excuse most likely to get him excused from continued work and pursue what he must have realized, given the Respondent's known needs and policies, was a futile request to be excused from work because he no longer felt like it. Dispatcher Fauver testified that Complainant did tell him he was ill before he told him he was booking off and before he was warned that doing so would be considered a work refusal. For the reasons sent forth above I conclude that Complainant requested permission not to drive because he was ill before he had been refused leave on any other ground.

    I am also not impressed by the fact that Complainant did not go and get a doctor's certificate attesting to his incapacity. He did request that Weltch send him to the clinic to check on his condition and was refused. He did try to get an appointment with is treating physician only to find Dr. Jaworski unavailable and to be told there would be no purpose to an appointment. As

Complainant's incapacity was of admittedly short duration and would be relieved by rest and a good night's sleep an examination at any time after october I could not establish anything relating to his fitness to work on that day.

    The next question is whether the Secretary has established that Complainant was indeed physically disabled from on driving a truck on October 1, 1986. Complainant testified that his leg started hurting after he had finished loading that last time sometime shortly after 11 a.m., that it got progressively worse so that by the time he informed Fauver of his intention to go home that day he felt too impaired to drive. He testified credibly that, while driving was the least strenuous of his work activities, the three hours of strenuous work which the series of mishaps had forced him to perform on October 1, 1986, in addition, to the usual two hours of loading activity had so badly stressed his left leg that he felt he could not properly operate the clutch and that such operation was necessary to control the speed of the truck. He would have had to travel on the Washington Beltway, a very heavily traveled super highway. He was concerned that he would be unable to reduce speed or stop or that he would be stranded at the side of the road. He pointed out that it was not just a matter of starting out but also of bringing the truck back.

    Other than the circumstantial evidence set forth above, i.e. complaining about having to drive a spare, failing to complain about his health before 11:00 a.m. and failure by management personel to observe a limp, which evidence I have already discounted, Respondent has produced no evidence to contradict Complainant's story. It missed its only opportunity to confirm its suspicions that Complainant was feigning his impairment when Weltch refused to have his complaints checked at the clinic.

have gone home unless he truly felt too ill to drive.

    Dr. Jaworski's October 16, 1985 report and his deposition testimony make it clear that Complainant's activities on the morning of October 1, 1985 may very well have had the effect that Complainant described, i.e. a painful and swollen knee which prolonged driving would make even worse. As Complainant's testimony concerning his knee impairment was consistent and uncontradicted and as this testimony is supported the extent possible by medical evidence I credit Complainant's testimony and find the Secretary and the Complainant have established that on the October 1, 1985, Complainant knee impairment made him too ill to drive safely. Respondent's insistance that he drive his load and its discharge of Complainant when he refused to do so were therefore in violation of § 405(b) of the STAA.

    While I do credit Complainant's testimony that he took Flexuril before he told Fauver that he was leaving, the record fails to show that Complainant told Fauver or anyone else that the medication he had ingested was a disabling narcotic. According to Complainant all he told Fauver was that the medication was for his leg and that he discussed the efficacy of such medication with Fauver (Tr. 73). As there are any number of non-disabling painkillers this testimony does not establish that Respondent knew that Complainant was under the influence of a disabling drug when he refused to drive his assigned load. It is the clear import of § 405 (b) that in order for an employer to be found in violation of that section such an employer must have known of the unsafe condition on which he alleged discriminatee's complaint is based. Because there is no evidence in the record that Respondent knew of the fact that Complainant had taken a pain killing drug I find that Respondent did not violate § 405(b) of the Act by requiring Complainant to drive while under the influence of a disabling drug.

    Respondent takes the position that no violation of § 405(b) of the STAA has been established because it cannot be deemed to have know of Complainant's disability. In support of this position Respondent argues that it has an established policy that requires employees who leave work because of illness after they have accepted a load to be discharged unless the illness is self-evident and that such discharge will be rescinded if the discharged employee brings a certificate from his physician attesting to his illness. The Employer has failed to establish the existence of such a policy. It is not in the union contract

nor reduced to writing anywhere. The Respondent's evidence of a known unwritten rule is unpersuasive Weltch testified unequivocally on deposition that no documentation of illness would be required of an employee who became ill after he reported to work (Gov.t 24-25), yet at the hearing he testified that such documentation was required (Tr . 345-348) unless he were "legitimately" sick. Other than the doctor's certificate involved in Complainant's discharge three years earlier in 1982 none of Respondent's witnesses could cite an actual example where this alleged policy had actually been carried out. Complainant was unaware of such a policy as was his witness William Cook, another of Respondent' s drivers. In view of the testimony discussed above I conclude that Respondent did not have any policy concerning procedures to be followed in the event a driver became ill after he accepted a load but rather dealt with the matter in an ad hoc manner.

    However, even were I to accept Respondent's argument that it had such a procedure, I could not conclude that under § 405(b) of the STAA Respondent is permitted to discharge Complainant permanently because he had failed to present a doctor's certificate after he was discharged.49 C.F.R. 392(b) and § 405(b) of the STAA are intended to protect the driving public and the driver from accidents which are the result of impaired drivers operating heavy commercial vehicles. It would ill serve such a purpose if an employee who felt impaired had to chose between immediate discharge coupled with the possibility eventual reinstatement and maintaining the status quo and uninterrupted cash flow by driving though impaired . It should be noted that Complainant's reinstatement in 1982 was not automatic but occurred only after there had been a first level grievance procedure and judging by the dates on Respondent's Exhibit 83 at least 8 days had elapsed between Complainant's discharge and his eventual reinstatment.

    There is no merit to Respondent's argument that failure to accept its Alice-in-Wonderland position of "verdict first trial afterward" would put employer at the mercy of unscrupulous employees who, claiming illness, could take off any time they pleased. Such projected horrors are imaginary. Employees are given only five days of paid sick leave annually and are paid in cash for unused sick leave. Surely such an arrangement is not an encouragement to taking unlimited sick leave. Assuming that drivers have to earn a living the fact that drivers are only paid on the basis of loads they actually deliver also would act as a deterent to unlimited claims of illness. In instances where the

employer has any doubts about the bona fides of an illness it can require that the employee undergo an immediate medical examination. Such a procedure assures the drivers and the driving public's safety. Here Complainant offered to undergo such an examination and was refused by Respondent. Respondent cannot now be heard to argue that it did not know that Complainant was impaired because he did not present a doctor's certificate after his discharge.

    Moreover the record clearly indicates that Respondent was determined to discharge Complainant for refusing to drive a load regardless of his physical condition. Weltch refused Complainant permission to be examined at the clinic. Neither Weltch nor Fauver discussed Complainant's symptoms with him or asked him to show them his allegedly swollen knee. Most tellingly Fauver date stamped Complainant's personnel action without filling it out and Weltch filled it out without discussing the matter at all with Fauver although it must be presumed that the dispatcher's observations of and conversation with Complainant would have been crucial to a determination of whether Complainant was impaired or was feigning impairment.

    For the reasons set forth above I conclude that Respondent discharged Complainant on october 1, 1985 in violation of § 405(b) of the STAA and must therefore reinstate him to his former position without loss of seniority and must make him whole for any wages he may have lost by reason of such discharge.

    The Respondent, Nu-Car Carriers shall:

the date of this order is 5.79% from the date such wages would have been paid to Complainant from October 1, 1985 to the date such payments are actually made.

4. Within 20 days of the date of this Order post for 30 days a copy of this Order in a prominent position on a bulletin board where notices to Nu-Car employees at the Respondent's Jessup, Maryland, facilities are customarily posted.

5. Expunge from Complainant's personnel record all references to his October 1, 1985 discharge.

       ANASTASIA T. DUNAU
       Administrative Law Judge

Dated: Oct 8 1986
Washington, D.C.

ATD:pas