Extra board drivers are
on call as needed by Greyhound when a regularly scheduled driver is absent. The arbitrator found
that Complainant was unavailable for work when called on six occasions before the final incident
which led to his discharge. Arbitrator's Decision and Award (Award) at 5-6, Attachment 2 to
Greyhound's Motion to Defer to Arbitral Decision. He was warned each time that further incidents
of being unavailable for work, called a "miss-out," could result in discharge, and he was
suspended for three days after a miss-out in May, 1996. When Complainant missed out on August
13, he was warned that the next incident would result in discharge. Award at 6.
For each of the three days prior to his dismissal, Complainant avoided work
by dropping down to the bottom of the extra board. Award at 8. When he was called at 2:00 AM
on December 27, he said he was not available because he was sleepy. Id. at 6. Complainant
met with his supervisor later that morning and explained that he had been fatigued when called at
2:00 AM because he had been out with family and friends the night before. Id. Complainant
was discharged for being unavailable for work. The arbitrator held that Complainant had no
reasonable basis to claim he was fatigued on the morning of December 27, because he had not
worked for three days by dropping down to the bottom of the extra board and had ample time to be
rested and available for work. Id. at 10.
The arbitrator rejected the union's argument that Greyhound violated the
STAA by discharging Complainant when he refused to work because he was fatigued. He held that
obtaining adequate rest was within Complainant's control because he had not worked for three days,
and that the STAA does not protect an employee from discipline in those circumstances. Id.
at 10-11.
The ALJ found that the arbitration decision dealt adequately with the factual
issues in the case and reached an outcome that was not repugnant to the purposes of the STAA. ALJ
Recommended Order at 2. Complainant had ample opportunity to obtain sufficient rest in the three
days prior to his miss-out on December 27 and had been warned that another miss-out would result
in his discharge. We agree with the ALJ that the arbitrator dealt adequately with the factual issues
in the case. There is no indication that the arbitration proceeding was unfair to Complainant or
suffered from any procedural defect, and we find that the outcome is not repugnant to the purposes
and policy of the STAA.
The Federal Motor Carrier Safety regulations prohibit operation of a vehicle
when "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." 49 C.F.R. §392.3 (1996) (the "fatigue rule"). The arbitrator
held that the STAA does not protect an employee who deliberately made himself unavailable for
work by not taking advantage of his time off to become rested and available when called. Award
at 10-11. The test for violation of the fatigue rule is whether "a reasonable person in the same
circumstance . . . would . . .conclude that his ability or alertness would be impaired such that a
violation of the fatigue rule would have occurred." Cortes v. Lucky Stores, Inc. , Case
No. 96-STA-30, ARB Dec. Feb. 27, 1998, slip op. at 5. Simply claiming that he was
"sleepy" when called by Greyhound, Award at 6, is not enough to show that
Complainant reasonably believed he was too fatigued to take the assignment. It is also not sufficient
to show that an actual violation of the fatigue rule would have occurred if Complainant had accepted
the assignment. 49 U.S.C.A. §31105(a)(1)(B)(i). See Brandt v. United Parcel
Service , Case No. 95-STA-26, Sec'y. Dec. Oct. 26, 1995, slip op. at 6 (employee not protected
for refusing an assignment in anticipation of fatigue due to change in sleep patterns contrasted with
employee required to remain on call by employer causing fatigue.) We agree with the ALJ that the
STAA does not protect an employee who, through no fault of the employer, has made himself
unavailable for work. Accordingly, we adopt the ALJ's recommendation that we defer to the
outcome of the arbitration proceeding and the complaint in this case is denied.
SO ORDERED .
KARL J.
SANDSTROM
PAUL
GREENBERG
CYNTHIA L.
ATTWOOD
[ENDNOTES]
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