Every commercial motor vehicle must be operated in accordance with the laws, ordinances, and regulations of the jurisdiction in which it is being operated. However, if a regulation of the Federal Highway Administration imposes a higher standard of care than the law, ordinance or regulation, the Federal Highway Administration regulation must be complied with.
49 C.F.R. § 392.2. Schwartz cites both the Federal Highway Administration fatigue rule and the State of California's counterpart to that provision in support of his complaint. See, e.g., Schwartz's Post-Hearing Exhs. 2, 3, submitted Mar. 15, 2002. TheCalifornia provision reads as follows:
Driver Condition.
A driver shall not drive when his/her ability to operate a vehicle safely is adversely affected by fatigue, illness, or any other cause.
Cal. Code Regs. tit. 13, § 1214. The Federal provision reads as follows:
No driver shall operate a commercial motor vehicle, and a motor carrier shall not require or permit a driver to operate a commercial 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/her to begin or continue to operate the commercial motor vehicle. However, in a case of grave emergency where the hazard to occupants of the commercial motor vehicle or other users of the highway would be increased by compliance with this section, the driver may continue to operate the commercial motor vehicle to the nearest place at which the hazard is removed.
49 C.F.R. § 392.3. The California provision arguably imposes a lower threshold of infirmity under which a driver would be considered impaired, in which case it would supersede the Federal provision at 49 C.F.R. § 392.3, pursuant to Section 392.2 of the Federal regulations quoted above. For purposes of deciding this case, it is unnecessary for us to resolve the question of which fatigue rule is controlling here.
2 Because of the discovery-related errors that we discuss later in this decision, we cannot adopt the ALJ's factual findings as they are based on an evidentiary record that is arguably incomplete. See 29 C.F.R. § 1978.109(c)(3). To resolve that evidentiary issue, we base our disposition on facts that are not in dispute, i.e., where both parties have offered evidence regarding a relevant fact, which is essentially in agreement, or where only one party has offered evidence regarding a relevant fact and that evidence has not been challenged by the other party, even in argument.
3 The parties dispute whether Schwartz had initially been told after the orientation session that he would be assigned to the day shift and that he was surprised when he received the YCT call on June 28 telling him that he would be assigned to the night shift. HT at 7, 26-28, 52 (Schwartz), 36 (Daniel).
4 Schwartz initially attempted to include a breach of contract claim under California law in this complaint. HT at 7, 26-27 (Schwartz). The ALJ properly advised Schwartz that the STAA employee protection provision does not cover such claims and that the breach of contract claim was not properly before him. HT at 7; see 49 U.S.C.A. § 31105.
5 The procedural history of the case indicates that Schwartz experienced a number of problems in engaging in discovery. Schwartz made repeated written inquiries for clarification of the ALJ's orders and for other rulings necessary to facilitate discovery without obtaining significant results. See Schwartz's Aug. 23, Aug. 28, Sept. 2, Sept. 21, Sept. 27, Oct. 9, Oct. 24, Dec. 5, Dec. 10, Dec. 19, 2001 ltrs. to ALJ; Schwartz's Dec. 17, 2001 ltr. to YCT; ALJ's Nov. 6, 2001 Memorandum of Telephone Conference [held on Oct. 25, 2001]; ALJ's Jan. 17, 2002 Order [denying Schwartz's subpoenas request]. In addition, the ALJ directed Schwartz to the Federal Rules of Civil Procedure (FRCP) rather than the several discovery-related provisions contained in the Office of Administrative Law Judges Rules of Practice and Procedure at 29 C.F.R. Part 18. See Schwartz's Dec. 5, 2001 ltr. to YCT; Schwartz's Dec. 19, 2001 ltr. to ALJ; ALJ's Nov. 6, 2001 Memorandum of Telephone Conference. Section 1978.106(a) requires that the Part 18 rules be applied in STAA adjudications "[e]xcept as otherwise noted" under the Part 1978 regulations. 29 C.F.R. § 1978.106(a). Inasmuch as Part 1978 does not contain provisions for conducting discovery in STAA proceedings but clearly contemplates discovery as a part of STAA adjudications, Part 18 discovery procedures are fully applicable. See 29 C.F.R. §§ 1978.106 – 1978.111 (litigation provisions); see also 29 C.F.R. § 1978.107(a) (providing that the complainant can "engage in discovery, present evidence and act as a party," even in a case in which the Assistant Secretary for OSHA is prosecuting the case). Pursuant to Section 18.1(a), FRCP provisions "shall be applied in any situation not provided for or controlled by these rules, or by any statute, executive order or regulation." 29 C.F.R. § 18.1(a). The record indicates that the ALJ directed Schwartz to conform his requests for YCT documents to the requirements of the FRCP but contains no suggestion that the ALJ had found the rather detailed Part 18 discovery rules to be lacking, thereby necessitating resort to the FRCP for guidance. See ALJ's Nov. 6, 2002 Memorandum of Telephone Conference; cf. Hasan v. Burns & Roe Enterprises, ARB No. 00-080, ALJ No. 2000-ERA-6, slip op. at 3-4 (ARB Jan. 30, 2001) (citing § 18.1(a) and drawing guidance from Supreme Court case law applying FRCP 26 regarding the scope of discovery).
6 Schwartz requested subpoenas for the following documents, which YCT had not provided in response to his December 5, 2001 letter requesting documents production:
Item 1 – All phone number accounts involved in any communication from defendant or defendant's associates, to plaintiff that reflect calls to (559) area code and 439 prefix between the dates of 6/29/2000 until 7/8/2000;
Item 2 – All notes pertaining to all drivers similar to the note written by Joseph Duncan, identified as "attachment (b.2)" contained in plaintiff's employee file;
Item 3 – All truck dispatch records related to operations at the Helm facility from 6/29/00 to 7/8/00 which establish the dispatch and return times, and the fields serviced. Request made in reference to statements made in "attachment (b.1) & (b.2)" in plaintiff's employee file;
Item 4 – Records that establish which tomato trucks (and drivers) were processed through grading and at what times they were processed, limited to dates July 4 and July 5[,] 2000 at the processing plant at Helm, California;
Item 5 – All payroll records limited to drivers based at the Helm facility during tomato season 2000;
Item 6 – All driver's log records for tomato season 2000 at the Helm plant;
Item 7 – [B]usiness records which identify drivers terminated at the Helm facility for tomato season 2000;
Item 8 – [A]ll business records that identify accounts serviced by Helm facility for tomato season 2000.
Schwartz's Dec. 19, 2001 ltr. and attached subpoena forms.
7 Another category of records identified by Schwartz in his December 26 request, drivers' logs, are similarly relevant, although the scope of the records sought should have been limited to Schwartz's period of employment rather than the entire 2000 tomato season. See Schwartz's Dec. 19, 2001 ltr. at attached subpoena form for Item Number Six (quoted in n.6 supra). In view of the pro se status of each party before the ALJ it might well have facilitated the proceedings if the ALJ had specifically referred the parties to the applicable provisions of 29 C.F.R. §§ 18.15, 18.19 and 18.21 early in the discovery process. See generally Young v. Schlumberger Field Servs., ARB No. 00-075, ALJ No. 2000-STA-28, slip op. at 8-10 (ARB Feb. 28, 2003) (discussing ALJ's additional responsibilities in his role as neutral decision-maker when case involves a party who proceeds pro se).
8 Schwartz's December 26 request was submitted two months before the hearing. The documents for which Schwartz requested subpoenas were the documents requested in Schwartz's December 5, 2001 letter to YCT. Moreover, they were also the documents Schwartz requested in previous correspondence directed to the ALJ. See Schwartz's Aug. 23 and Oct. 9, 2001 ltrs. Schwartz served copies of the August 23 and October 9 letters – as well as all other inquiries regarding discovery that Schwartz addressed to the ALJ contained in the case record – on YCT. See n.5 supra. In regard to a complaint filed under the employee protection provisions of a number of the environmental protection statutes that are also administered by the Department of Labor, a Federal District Court recently held that an administrative law judge does not have authority to issue a subpoena without a specific statutory grant of such authority. Bobreski v. U.S. Envt'l Prot. Agency, No. 02-0732(RMU), 2003 WL 22246796, at *6-*8 (D.D.C. Sept. 30, 2003). Regardless of whether the ALJ is authorized to issue subpoenas pursuant to the STAA, he clearly does have the authority to take measures to compel production pursuant to Sections 18.6(d) and 18.21.
9 The ALJ properly identified the elements that a complainant must establish to prevail in a STAA complaint, but referred to a complainant's prima facie case rather than the elements required to prevail on the complaint. R. D. & O. at 6, 9. Since all the issues of Schwartz's whistleblower complaint were adjudicated at hearing before the ALJ, consideration of whether Schwartz had met the preliminary requirement of establishing a prima facie case was unnecessary. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983); Johnson v. Roadway Exp., ARB No. 99-111, ALJ No. 1999-STA-5, slip op. at 7 n.11 (ARB Mar. 29, 2000). After a whistleblower case has been fully tried on the merits, the question for the administrative law judge is whether a complainant has carried his ultimate burden of establishing the requisite elements of the case by a preponderance of the evidence. SeeBSP Transp., 160 F.3d at 46; Moon, 836 F.2d at 229.