Date: April 8, 1998

Case No.: 96-STA-23

In the Matter of:

ASSISTANT SECRETARY OF LABOR,
    Prosecuting Party,

    and

ALBERT PORTER,
    Complainant,

    v.

GREYHOUND BUS LINES,
    Respondent.

WILLIAM BERGER, Esq.
    For Prosecuting Party

GLENN D. GRANT, Esq.
    For Respondent

Before: DANIEL A. SARNO, JR.
    Administrative Law Judge

   This proceeding arises from a claim under the Surface Transportation Assistance Act of 1982 ("the Act"), 49 U.S.C. §31105.

   On February 9, 1998, Respondent moved to defer to the decision of Arbitrator C. Allen Foster thereby dismissing Mr. Porter's claim against Respondent. Neither Complainant nor the Prosecuting Party responded to this motion.

   Under 29 C.F.R. §1978.112(c), the Secretary, and thus the presiding judge, may defer to the decision of another forum if that forum: 1) adequately dealt with the factual issues; 2) the proceeding was fair, regular and free of procedural infirmities; and 3) the outcome is not repugnant to the purpose and policy of the Act.

   After review of Arbitrator Foster's decision, I find that the proceeding was fair, regular and free of procedural infirmities. Foster conducted a thorough finding of facts. He based his decision that Complainant had been terminated on December 27, 1995, for cause on the undisputed evidence that Complainant had been absent several times in the nine month period in which he was employed as a full-time extra board driver. Specifically, Foster found that Complainant had made a concerted effort to be absent over the Christmas holiday, one of the busiest times for Respondent and a period in which extra board drivers were most needed (Foster Decision 9). Complainant had received several warnings as to his absences and was informed in August 1995, that he would be terminated should he be absent again (Foster Decision 8). Foster dealt adequately with the conflicting evidence as to the number of "miss-outs," which Complainant had accumulated, and came to a reasonable conclusion (Foster Decision 8). Foster notes that Complainant had been off work for sixty-seven hours when he was called in to work on December 27, 1995. If he was fatigued, it was by his own doing. He had called in several times in the interim to be moved down the extra board, but he was aware that he could be called in to work at any time.

   I find that Arbitrator Foster dealt adequately with the factual issues in this matter and the outcome reached is not repugnant to the purpose of the Act. Therefore,

   It is hereby RECOMMENDED that Respondent's motion for deferral to arbitral decision be GRANTED and Mr. Porter's claim be DISMISSED.

      DANIEL A. SARNO, JR.
      Administrative Law Judge

DAS/PAK
Newport News, Virginia