ARB CASE NO. 01-088
ALJ CASE NO. 00-STA-041
DATE: October 31, 2003
In the Matter of:
WILLIAM J. BETTNER,
COMPLAINANT,
v.
DAYMARK, INC.,
RESPONDENT.
BEFORE THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant: Paul D. Taylor, Esq., Truckers Justice Center, Eagan, Minnesota
For the Respondent:
Sara L. Thomas Esq.; Donald J. Vogel, Esq., Michael, Best & Friedrich, Chicago, Illinois
FINAL DECISION AND ORDER
This case arises under the whistleblower protection provision of the Surface Transportation Assistance Act (STAA), 49 U.S.C.A. § 31105 (West 1997), and the regulations implementing that provision, 29 C.F.R. Part 1978 (2002). Daymark, Inc. employed William J. Bettner as a truck driver. Bettner alleges that he engaged in conduct protected under the STAA (by filing a prior complaint against Daymark under the STAA whistleblower provision and participating in activities related thereto, making safety-related complaints about trip scheduling, and by refusing to drive in violation of the Department of Transportation's "fatigue rule") and that Daymark retaliated by not promptly reinstating his health insurance as required by the agreement settling his prior STAA complaint against Daymark, issuing two unsatisfactory performance reports, discharging him (by improperly treating a message he sent to the company as a resignation), and not rescinding the resignation or rehiring him. He further argues that he was constructively discharged. These charges were investigated by OSHA, which found no STAA violations, and were the subject of a Department of Labor hearing before an Administrative Law Judge (ALJ). The ALJ found that Daymark had committed a de minimus violation of the STAA by not immediately reinstating Bettner's medical benefits (after he returned to work pursuant to the settlement of his prior STAA claim). On the other issues, the ALJ found that Bettner had not shown by a preponderance of the evidence that Daymark acted in retaliation for Bettner's protected activities. Recommended Decision and Order (R. D. & O.). Because Daymark fully reimbursed Bettner's medical expenses by December 1998, the ALJ found no further remedy was required, and recommended that Bettner's complaints alleging other violations of 29 U.S.C.A. § 31105(a)(1) be dismissed. We reverse the ALJ's decision on the health insurance issue and deny Bettner's complaint on all issues.
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JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction to review the ALJ's R. D. & O. and to issue the final agency decision pursuant to 29 C.F.R. § 1978.109 (c)(1) and the Secretary's Order No. 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002). We review the ALJ's findings of fact under the substantial evidence standard. "The findings of the administrative law judge with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be considered as conclusive." 29 C.F.R. § 1978.109(c)(3). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, (1951). We accord special weight to an ALJ's demeanor-base credibility determination. Poll v. R.J. Vyhnalek Trucking, ARB No. 98-020, ALJ No. 96-ERA-30, slip op. at 8 (June 28, 2002). In reviewing the ALJ's conclusions of law, the Board, as the designee of the Secretary, acts with "all the powers [the Secretary] would have in making the initial decision . . . ." 5 U.S.C.A. § 557(b) (West 1996). See also 29 C.F.R. § 1978.109(b). Therefore, the Board reviews the ALJ's conclusions of law de novo. Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1066 (5th Cir. 1991).
1 The information cited here is drawn from the record of the hearing before the Administrative Law Judge.
2 In this case JX stands for joint exhibits, CX stands for Complainant's exhibits and RX stands for Respondent's exhibits.
3 On the morning of August 27 Lape revised the time to 1500 (3:00 p.m.).
4 49 C.F.R. § 395.3(a)(2) provides, with limited exceptions, that "no motor carrier shall permit or require any driver used by it to drive, nor shall any such driver drive: … for any period after having been on duty 15 hours following 8 consecutive hours off duty." Further, with limited exceptions, no driver may drive more than 10 hours following 8 consecutive hours off duty. 49 C.F.R. § 395.3(a)(1). Drivers using sleeper berth equipment "may cumulate the required 8 consecutive hours off duty, as required by Sec. 395.3, resting in a sleeper berth in two separate periods totaling 8 hours, neither period to be less than 2 hours." 49 C.F.R. § 395.1(g).
5 The log time is Central Time, the delivery time was Chattanooga time, which was Eastern time. T. 225. It is not clear from the record whether the log time was Central Standard Time or Central Daylight Time, while the Chattanooga time in August would have been Eastern Daylight Time. Bettner, however, agreed that there was an hour difference between the log time and the Chattanooga time. T. 225. The Qualcomm time is taken from when the driver punches in his arrival time. Bettner thinks he did not punch in his time immediately when he arrived. (T. 100).
6 Bettner's testimony on direct examination was that he spent six and a half hours doing the unloading and piece count. (T. 117, 118 ). His log records his on duty not driving time as seven and a half hours. (CX 1 p. 16).
7 The $1.50 figure apparently was a typographical error, since Pierce testified "You know we figure 15 cents a hundred-weight." (T. 342).
8 This apparently referred to Daymark's assignment of the truck Bettner had been driving to another driver when Bettner took vacation. (T. 322).
9 The parties in this case stipulated that Daymark is an employer subject to the STAA and that Bettner, similarly, is an employee within the purview of the STAA. (See R. D. & O. at 3, T. 3).
10 The ALJ made no specific finding as to causation with respect to the delay in paying health claims.
11 The ALJ also found that a portion of the delay could be attributed to time spent when Bettner received the overweight citation. He found that this constituted at least a half hour. (R. D. &. O. at at 274). Since Bettner's log shows that he spent 45 minutes at the scale in Seymour, Indiana (CX 1, p. 15) and he testified that he would have spent a half hour weighing the load had he complied with Daymark policy (T. 274), the evidence is that at least fifteen minutes of the delay is attributable to the overweight citation.
12 The ALJ noted that Bettner's stopping to sleep did not fully account for his late arrival. (R. D. & O. at 43).
13 The ALJ places this finding in the context of the September 3 Fogelsville trip; however, the only trip involving alleged axle problems is the Chattanooga trip. (R. D. & O. at 25, 43, T. 80-81). We note that earlier in the ALJ's opinion he recounts Bettner's testimony concerning the axle problem in the context of the Chattanooga trip and subsequently states that Bettner's log shows that "he arrived in Indianapolis at 11:00 p.m., that the delay was due to the axle problem…." (R. D. & O. at 16, 18). Bettner's log shows on-duty not driving time, but no notation as to what work was being done at the time. (CX 1, p. 14).
14 A portion of the delay is also attributable to the time Bettner spent in connection with the overweight citation. That time is not protected activity. Additionally, Bettner does not claim that the time spent adjusting the axles was protected activity.
15 Pierce testified that at the October 1 meeting the Daymark officials "went through his logs and showed him where he could have been there on time if he would have–where it was a very–and it was an easy run to make." He further stated, "But he had spent so much time on the telephone either talking with me or doing other things that he was an hour late, and he was not worthy of delay pay as per the policy." (T. 338). Although Pierce did not specifically identify the time-saving opportunities (apart from the September 3 telephone call to Pierce from Somerset), we note that Bettner took a one-hour dinner break on September 2, 1998, after the driver bringing the Fogelsville load to London, Ohio arrived. That dinner break followed an hour off duty and three hours spent in the sleeper berth while Bettner waited for the other driver. (T. 119-123, 131-135). Bettner had previously spent eight hours in the sleeper berth (from 12:00 a.m. to 8:00 a.m. on September 2). On the morning of September 3, 1998, Bettner spent forty-five minutes at the truck stop, without checking to see if the truck blocking him had left, before inspecting his vehicle for an additional fifteen minutes. Bettner testified that normally his morning breakfast/rest room stop could take as little as fifteen minutes. (T.126-128). Even assuming that Bettner had to stop at some point between Wheeling and Fogelsville, it appears that a shorter stop at Somerset, coupled with spending less time at dinner in London, Ohio would have enabled him to arrive timely. It also appears that Bettner could have left the truck stop in Old Washington earlier (for example by making his fifteen-minute vehicle inspection during part of the forty-five minutes that he spent inside the truck stop). Bettner offered no evidence controverting Pierce's testimony that had he managed his time as Pierce suggested at the October 1 meeting, he would have arrived on schedule.
16 Bettner's failure to do so is anomalous, and quite inconsistent with his position that he did not resign, since the testimony establishes that he had generally called Pierce at least once a week to discuss matters which concerned him. (T. 321).
17 In his post-hearing brief before the ALJ, Bettner cited the two unsatisfactory performance reports, the refusal to pay the lumper charge, the deduction for locksmith services, the refusal to pay delay pay for the Fogelsville delivery, and the refusal to promptly pay medical claims, as the basis for his constructive discharge claim. In his testimony, Bettner cited the deduction for locksmith services, short runs, Daymark's taking his truck away, the refusal to pay the lumper charge, and the refusal to pay medical claims, as the reason he sent his November 13 Qualcomm message. With the exception of the failure to promptly pay medical claims (which he found was a violation of the STAA) and the taking of the truck (which was not cited by Bettner in his brief and was not dealt with by the ALJ's R. D. & O.), the ALJ found that Daymark provided legitimate non-discriminatory reasons for its actions with respect to each of these issues. We note that Daymark offered a legitimate, nondiscriminatory reason for taking the truck – which was to keep it in use making money for Daymark during the period it would otherwise have been out of production during Bettner's vacation. (T. 322). We also have found, as explained above, that Daymark offered a legitimate, nondiscriminatory reason for the delay in paying medical claims.
18 The ALJ did not specifically identify those occasions when Bettner raised "complaints to Daymark management about its trip scheduling and planning" which were causing him to be tired or fatigued" within the meaning of the Act (R. D. & O. at 40) or "the comments Mr. Bettner made to management about working more hours than expected and needing more time off in such circumstances," id., or evaluate whether Bettner had a good faith belief regarding the existence of a violation. See Leach v. Basin Western, Inc., slip op. at 3 ("Under the complaint clause, it is necessary that the complainant at least be acting on a reasonable belief regarding the existence of a violation."). It is therefore difficult to assess whether substantial evidence supports his findings that some of Bettner's complaints qualified as protected activity.