I heard evidence and arguments on this matter on March 4, 2002 in Seattle, Washington. At that time, I admitted Complainants exhibits 1-4, and Respondents Exhibit 1. I make my recommended order to the Administrative Review Board ("ARB" or "Board") based on the oral and written evidence adduced at trial, the submissions of the parties, and the arguments made.

The main issues presented to me for consideration are:

Things did not turn out as planned. When Complainant arrived in New Jersey there were no workers in the warehouse, so the goods were not unloaded until August 28, 2001. TR at 23. Complainant then drove an unloaded trailer from Lakewood, New Jersey to Cape Charles, Virginia, where he stayed the night. On August 29, 2001, Claimant dropped off the empty trailer at Portsmouth, Virginia, then continued with no trailer at all to Newport News, Virginia. TR at 24-25; Compl. Ex. 2. Once in Newport News, he discovered that the trailer which he was supposed to pick up and drive to North Carolina (to be loaded and driven back to Washington) was not empty. TR at 24. That trailer was loaded with household goods of a military officer, but the house the officer was moving into was not ready. The local moving company had not unloaded the trailer for several reasons: it would incur additional labor costs, there would be a danger of breakage in a move from the trailer into storage and again out of storage, and there was the risk of loss by theft if the items were placed in short term storage. TR at 25.

Complainant contacted Employer on August 29, 2001 at the motel and was told to drive the tractor with no trailer known as bobtailing from Newport News, Virginia to Salisbury, North Carolina on August 30, 2001. Id. According to Complainant, bobtailing caused the tractor to bounce more than normal, which had the effect of aggravating Complainants back condition. TR at 28. Once he arrived in Salisbury, NC the owner of a local moving and storage facility met Complainant and assisted in the connection of an available trailer to Complainants tractor rig. This trailer was not of the type originally planned, and was unsuited to move new furniture from Salisbury to the State of Washington. Emery Moving had to find another load for him to bring back; Emerys dispatcher looked for available loads, and located household goods in Hamilton, Ohio for Complainant to haul back to Washington state. TR at 30-31.

Complainant testified that he turned down the opportunity to transport the Hamilton, Ohio load because his back hurt him after the bobtailing, and because he could not drive through the night to reach Hamilton due to fatigue. TR at 32. Complainant believed that he was required to be in Ohio early on the morning of August 31, 2001, which he considered both impossible, taking into consideration the speed limits and breaks for rest and fueling, as well as unsafe, given Complainants regular sleep pattern and his state of fatigue. TR at 32-38. Employer testified that a driver must pick up a load of household goods between 8:00 AM and 5:00 PM on the day assigned, and that the moving company does not guarantee the customer a specific pickup time. TR at 55. Complainant was never required to be in Hamilton, Ohio by 8:00 AM on August 30, 2001. Nonetheless, the rigidity of Claimants self-imposed driving schedule would raise questions about his suitability to be a driver for the employer, given the nature of the driving to be done in moves of household goods.

At trial, Complainant testified that Employer did not require Complainant to break the U.S. DOT regulations by driving more than ten hours or in a fatigued condition to pick up the delivery in Hamilton by 8:00 AM the next morning. TR at 76. On the contrary, Complainant testified that Employer told Complainant to rest Complainants fatigued back following the bobtailing incident. TR at 38, 44.

A. Did Employer violate U.S. Department of Transportation regulations?

The primary issue is whether Employer violated the maximum driving time requirement included in the federal Department of Transportation regulations when he asked Complainant on August 30, 2001 to pick up the load in Hamilton, Ohio.

The law on this matter is straightforward. Federal regulations prohibit a motor carrier from requiring a driver to drive more than ten hours after eight consecutive hours off duty. See Federal Motor Carrier Safety Regulations, 49. C.F.R. § 395.3. They also prohibit a motor carrier from requiring a driver to drive when fatigued or ill. 49 C.F.R. § 392.3.

Complainant kept the required daily drivers logs, which documented the number of hours he drove. They show that Complainant never drove in excess of ten hours per day. Complainant had four hours of driving available in proceeding from Salisbury, North Carolina to Hamilton, Ohio on the day the load was located. This would have given Complainant the opportunity to rest for eight hours, as the U.S. DOT regulations require, and then drive to Ohio to pick up the load. Although Complainant interpreted the assignment to involve driving through the night to pick up the load in Hamilton early on the morning of August 31, 2001 (thereby violating the U.S. DOT regulations), the fact remains that Employer never required Complainant to drive in violation of the regulations. TR at 76-77.

To the contrary, the owner of Emery Moving personally told Complainant to rest his back after the bobtailing driving. As Mr. Emery himself testified: "We did everything we could to protect him, ourselves, and the general public." TR at 66. Combined with the facts that Employer located an alternative load for Complainant to bring back to Washington state, and that Employer later offered twice to fly Complainant home from either Charlotte, North Carolina or Kansas City, Missouri, and that it paid him for the return trip even without any load, I find that Employer was especially cooperative and accommodating toward Complainant and his back condition.

In conclusion, I find that Employer neither explicitly not implicitly required Complainant to drive over the maximum number of hours or in a fatigued condition. It did not violate the U.S. DOT regulations.

B. Did Employer violate 49 U.S.C. § 31105?

Next, I consider whether Employer violated § 31105 by terminating Complainants employment on September 5, 2001, after Complainants first trip for Employer.

The STAA provides for employee protection from discrimination because the employee has engaged in protected activity while employed by an individual, partnership, association, corporation or any other business entity which is engaged in interstate commerce. The Act prohibits discharge, discipline, or discrimination against an employee for refusal to operate a commercial motor vehicle with a gross weight rating in excess of 10,000 pounds in violation of federal regulations, or in apprehension of serious injury due to unsafe conditions or health matters. See 49 U.S.C. § 31105.

To prevail on a claim under § 31105, a complainant must prove by a preponderance of the evidence that he or she engaged in a protected activity, that his or her employer was aware of the protected activity, and that the employer discharged, disciplined or discriminated against him or her because of that activity. More v. R&L Transfer, Inc., ARB Case No. 01-0444 (2001); Clean Harbors Envtl. Servs., Inc. v. Herman, 146 F.3d 12, 21 (1st Cir. 1998); Yellow Freight Sys., Inc. v. Reich, 27 F.3d 1133, 1138 (6th Cir. 1994); Moon v. Transport Drivers, Inc., 836 F. 226, 228 (6th Cir. 1987).

Complainant should not prevail. Employer did not terminate Complainants employment because Complainant had engaged in a protected activity. Complainant was not discharged as a disciplinary matter or as retribution for failure to drive through the night and pick up the load in Hamilton, Ohio early on the . Emery Moving terminated Complainant because he was, by Complainants own admission, physically incapable of the type of driving required by Employer. Because of Complainants back pain and rigid sleep schedule, he was not a reliable truck driver. As Employer points out, he was under no obligation to offer to fly Complainant back to Washington or to pay him for his return trip with an empty load. If Employer had wanted to terminate Complainants employment after Complainant refused to pick up the shipment in Hamilton, then he could have done so immediately after the refusal. See TR at 82. This is not what happened, and the facts, as a whole, are more consistent with a termination after the first cross-country drive because Complainant proved to be ill-suited to the position.

Employer did not violate § 31105 of the Act by terminating Complainants employment on September 5, 2001.

Mr. Sosnoskies claim against Emery Moving should be dismissed.

       William Dorsey
       Administrative Law Judge

NOTICE: This Recommended Decision and Order and the administrative file in this matter will be forwarded for review by the Administrative Review Board, U.S. Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, DC 20210. See 29 C.F.R. §1978.109(a); 61 Fed. Reg. 19978 (1996).