Date: November 12, 1993
Case No.: 93-STA-4
In the Matter of
ROBERT REEMSNYDER
Complainant
vs.
MAYFLOWER TRANSIT, INC.
Respondent
APPEARANCES:
Robert Reemsnyder, Pro Se
Fayetteville, Tennessee
For the Complainant
Sydney F. Frazier, Esq.
Cabaniss, Johnson, Gardner, Dumas & O'Neal
Birmingham, Alabama
and
Steven David, Esq.
Mayflower Transit, Inc.
Carmel, Indiana
For the Respondent
BEFORE: DANIEL J. ROKETENETZ
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This action arises under the Surface Transportation Assistance
Act of 1982 (hereinafter "STAA"), 49 U.S.C. §2305, and the
regulations found at 29 C.F.R. Part 1978. Section 405 of the STAA
provides protection from discrimination to employees who report
violations of commercial motor vehicle safety rules or who refuse
to operate a vehicle when the operation would be a violation of
those rules.
[PAGE 2]
STATEMENT OF THE CASE
The Complainant, Robert Reemsnyder (hereinafter "Reemsnyder"),
filed the first documented complaint in this action by telephone
with the Secretary of Labor, Occupational Safety and Health
Administration ("OSHA") on October 21, 1991, alleging that the
Respondent, Mayflower Transit, Inc. ("Mayflower") discriminated
against him in violation of §405(a) and (b) of the Act.
Reemsnyder contends that he was discharged for filing
complaints with various federal and state agencies alleging viola-
tions of federal hours of service regulations and for refusing to
operate his vehicle while fatigued or while the brakes were not
working properly. The Secretary of Labor, acting through a duly
authorized agent, investigated the complaint and on August 27,
1992, determined that Reemsnyder's Complaint was not filed timely
and was without merit. (AX 4) Complainant filed objections to the
Secretary's findings by way of a letter dated October 15, 1992, and
requested a formal hearing before an Administrative Law Judge. (AX
8)
A formal hearing was conducted on April 27-28, 1993, in
Fayetteville, Tennessee, where the parties were afforded full
opportunity to present evidence[1] and argument.
ISSUES:
1. Whether Reemsnyder filed a timely complaint with the U.S.
Department of Labor;
2. Whether Reemsnyder filed a timely request for hearing on
his claim following the Secretary's August 27, 1992 finding
that the Complaint should be dismissed; and,
3. Whether Reemsnyder was discharged as a result of having
engaged in protected activity.
STIPULATIONS:
Pursuant to my prehearing order, the parties were instructed
to confer and prepare a stipulation of facts which are not in
dispute. (AX 24) Each party submitted a document containing what
they believed to be the agreed upon stipulations, but the documents
conflict. Compare AX 42 (April 15, 1993 letter of Complain-
ant) with AX 43 (Submission of Respondent, under cover
letter of April 19, 1993). The single fact stipulated to by both
parties is that
[PAGE 3]
Reemsnyder executed a Contract Hauling Agreement ("contract") with
Mayflower on June 28, 1990. (RX 1)
Based upon my observation of the appearance and demeanor of
the witnesses who testified at the hearing and upon a thorough
analysis of the entire record in this case, with due consideration
accorded to the arguments of the parties, applicable statutory
provisions, regulations and relevant case law, I hereby make the
following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Factual Background
Extensive testimony was elicited from both sides at the
hearing concerning the events leading up to the termination of
Reemsnyder's contract. Reemsnyder attended a Mayflower recruiting
seminar in April, 1990, filed an application, and was accepted into
Mayflower's training program. (Tr. 12, 25) After a three week
qualification process, Reemsnyder entered into the contract with
Mayflower on June 28, 1990. (Tr. 28-29; RX 1) Upon entering into
the contract, Reemsnyder began work as an owner/operator in the
Household Goods ("HHG") division of Mayflower, driving a tractor he
purchased with financing provided by a Mayflower subsidiary. The
trailer used by Reemsnyder was owned by Mayflower. (Tr. 17-18; RX
1)
In the HHG division, the shipment process begins when a
Mayflower agent accepts an order from a shipper, typically making
a commitment that the order will be loaded within a certain number
of days, and delivered within a second range of days. (Tr. 353-54)
The order is then given to a planner, whose job is to piece
together a series of orders to make up a complete load to be hauled
by a van operator such as Reemsnyder. (Tr. 354) In so doing, the
van operator is responsible for putting together an assignment that
can be done by the van operator, taking into account hours of
service restrictions[2] , and that will be profitable for the van
operator, considering the distance involved and the amount of the
order. (Tr. 354-56) The assignment is then given to a dispatcher,
who offers it to a van operator. (Tr. 356-57) The van operator
has the option to accept or reject the assignment, based upon
whether he agrees the assignment can be done and will be suffi-
ciently profitable. (Tr. 83, 357) This discretion is not
unfettered, however, because the van operator must accept and
perform a sufficient number of assignments to pay a large number of
fixed expenses, such as monthly payments on his or her tractor,
insurance, tires for both the tractor and trailer, license plates,
[PAGE 4]
inspections, cargo-handling equipment, tolls, tire chains, and the
cost of hiring labor to assist in the loading and unloading of the
truck. (Tr. 72-76)
Once an assignment is accepted, the van operator sets off for
his first scheduled pickup. It is in the van operator's interest
to minimize the amount of time spent traveling to a pickup point
with an unloaded trailer, because compensation is based upon a
percentage of the gross revenue generated by the load hauled, and
typically no payment is made for mileage accumulated while
unloaded.[3] In Reemsnyder's case, he was paid fifty-four percent
(54%) of the revenue generated by Mayflower from his assignments.
(Tr. 365; RX 1) Responsibility for compliance with hours of
service regulations is left completely up to the van operator,
although the logs are ultimately turned into Mayflower, where a
compliance review is conducted, and the operator fined one dollar
per violation. (Tr. 236-41, 363) The van operator communicates
with the dispatcher on a daily basis, advising him of his or her
location, estimated time of arrival, and the like. Mayflower also
requests that its van operators call in whenever they are forced to
deviate from the original schedule, so that the shipper may be
advised of any change in the pickup or delivery times. (Tr. 359-60)
As independent contractors the van operators control their starting
and stopping times and their calls to the dispatcher. (Tr. 428-29)
Overall, the van operator is faced with a difficult task, and must
put in a great deal of time and effort to maximize available driving
time and to load and unload the trailer efficiently in order to make
a profit, all while complying with hours of service regulations.
(Tr. 441-42) Sixty to seventy percent (60-70%) of all new
owner/operators fail within their first year. (Tr. 441)
Reemsnyder's problems began almost immediately upon signing
the contract with Mayflower. He testified that his first hours of
service problem was on a dispatch from Ann Arbor, Michigan to pick
up goods in Columbus, Ohio and Rockford, Illinois in July, 1990.
(Tr. 56-58) Reemsnyder testified that the dispatcher was upset
with him for not arriving in Rockford until 5 p.m., and that he was
expected to cover a distance of approximately 550 miles in ten
hours, which was not possible, and which would force him to violate
hours of service regulations. Id. Reemsnyder was apparent-
ly referring to Chillicothe, Ohio, because his log for that period
makes no mention of Columbus, Ohio during that period. (RX 6)
According to Reemsnyder's log, he left Chillicothe, Ohio at 2:15
p.m. on July 2, 1990, and arrived in Rockford, Illinois, at 5 p.m.
on July 3, 1990, twenty-six and three quarter hours later. (RX 6,
log at July 2-3) Of these twenty-six and three quarter
hours,
[PAGE 5]
eleven and one quarter hours were spent driving, fifteen were spent
off duty or in the sleeper compartment, and one half hour was spent
on duty, but not driving. Id. Instead of driving ten
hours, and then taking eight hours off, which would have maximized
Reemsnyder's driving time and complied with the ten and fifteen
hour rules, Reemsnyder took off-duty breaks of two and one half and
one and three quarter hours, interspersed with brief periods of
driving, before stopping for his eight consecutive hours off duty.
Id. Had Reemsnyder driven ten hours and taken eight
consecutive hours off duty, he would have been one and one quarter
hours away from Rockford, Illinois at 8:15 a.m. on July 3, 1990.
Even adding three hours for necessary activities such as eating,
using the rest room, and calling his dispatcher, Reemsnyder could
have arrived in Rockford at 12:30 p.m., four and one half hours
earlier than he ultimately arrived, while fully complying with
hours of service regulations.
The second specific incident which Reemsnyder testified about,
was a problem with his trailer brakes in November, 1990. (Tr. 39-
56) Reemsnyder testified that on November 1, 1990, the brakes on
his trailer locked up. (Tr. 42) Reemsnyder was instructed as to
how to release the trailer brakes, so that the trailer could be
moved to a repair shop three miles away. Id. A temporary
repair was made, and Reemsnyder was instructed to take the trailer
to Gainesville, Florida for permanent repairs. (Tr. 44-45)
Reemsnyder testified that when he informed Mayflower dispatcher
Gene Fox ("Fox") that the repair could not be made until the next
day, Fox instructed him to travel to Panama City, Florida, for the
next pickup, and to have the repair made there instead. (Tr. 45)
Reemsnyder's log shows that he finally arrived in Panama City at 1
p.m. on November 2, 1990. (RX 6, log at November 2) After
being forced to again move the trailer to a second shop in Panama
City where Mayflower had an account, Reemsnyder refused to move the
trailer until the brakes were repaired. (Tr. 48) However,
Reemsnyder testified that the brakes were then fixed, and that no
threats were made to him by any Mayflower official. (Tr. 48-49)
Apparently, however, a late delivery was noted in Reemsnyder's
personnel record. (Tr. 51-54) Ultimately, Reemsnyder was stranded
in Panama City for almost seven days until the shop could make the
required repairs. (RX 6, log at November 2-8) Once the
repairs were completed, Reemsnyder drove for five hours before
stopping for eight hours off duty. Id.
The next incident testified to by Reemsnyder occurred in
November, 1990 in New York. (Tr. 76-87) Reemsnyder refused to
accept a series of loads which he felt could not be completed
within hours of service limitations, and he testified that
Mayflower respected his wishes, reassigning the loads. (Tr. 78-79)
[PAGE 6]
After being assigned a new load to pick up in Brooklyn, New York,
Reemsnyder testified that due to traffic he was forced to park the
truck far from the shipper's residence and that it ended up taking
ten hours to load the shipment. (Tr. 80-85) However, Reemsnyder's
logs for that period do not show any on-duty non-driving segment of
more than five and one half hours. See RX 6, log at
November 19-22. Reemsnyder's mother, Evelyn Schloss, who was
traveling with him at the time, testified that they did not arrive
at the residence until "early afternoon", that the loading took
them until dark, and that Reemsnyder had trouble finding his way
out of Brooklyn. (Tr. 318-19) Even accepting Reemsnyder's ten
hour figure, he himself admitted that Mayflower did not force him
to violate the Fifteen Hour rule that day, and that no hours of
service violation occurred. (Tr. 86)
Ms. Schloss testified as to three additional problems that
occurred between December, 1990 and January, 1991. (Tr. 319-35)
These incidents involved delays on Reemsnyder's part due to
problems with the workers, weather conditions, conditions at the
shippers' residences, and traffic conditions. Id. However,
none of these incidents involved any refusal to operate or safety
complaint by Reemsnyder. The only testimony concerning Mayflower's
reaction to these incidents was the fact that Reemsnyder's
dispatcher, Fox, became angry with Reemsnyder over the delays and
complained about his tendency to begin working later in the day.
(Tr. 321, 327) Since none of these incidents involved any
threatening or discriminatory action by Mayflower related to
protected activity, they are of little help to Reemsnyder in
carrying his burden of proof.
In February, 1990, after an incident in Bloomfield Hills,
Michigan, Reemsnyder's contract was cancelled for the first time.
Reemsnyder called Mayflower dispatch upon arrival, and told his
dispatcher, Fox, that he lacked sufficient hours of service to
complete the deliveries. (Tr. 92) Reemsnyder testified that Fox
attempted to persuade Reemsnyder to go off duty while hired help
unloaded the truck, but that he was hesitant, due to the fact that
he would remain liable for any loss or property damage occurring
during the unloading. (Tr. 92-94) Reemsnyder became embroiled in
a dispute with the helpers over their pay and their refusal to
provide Reemsnyder with a valid address, with one of the men
actually pulling a knife and threatening to disable the truck.
(Tr. 95-98) A police report was made, and Reemsnyder reported the
incident to Mayflower in a "Van Operator Questionnaire" which he
submitted. (CX 10) Reemsnyder's log does not support his
contention of an impending violation, however. On February 15,
1991, the day in question, Reemsnyder went on duty at 10:45 a.m.,
[PAGE 7]
following thirteen and three quarter hours off duty. (RX 4,
log at February 14-15) He arrived in Bloomfield Hills at
2:15 p.m., after logging two and one half hours driving time and
one hour of time on duty but not driving. Id. At that
point, Reemsnyder could have driven seven and one half hours under
the Ten Hour rule, and under the Fifteen Hour rule, he had eleven
and one half total duty hours available before he would have been
prevented from driving. See CX 2, DOT Safety Regula-
tions, 49 C.F.R. §395.3. Under the Seventy Hour rule,
Reemsnyder had six and three quarter duty hours available in the
eight day period ending February 15, 1991. Id. It is not
clear from Reemsnyder's testimony, but apparently he followed Fox's
advice on this occasion, because his log shows that he remained on
duty until 3 p.m., went off duty until 10 p.m., and then returned
to duty for one half hour, after which he drove to Ann Arbor,
Michigan, where he went off duty for forty and one half consecutive
hours. (RX 4, log at February 15-17; Tr. 102. Seealso CX 10 (Van Operator Questionnaire, in which Reemsnyder
complains of agent's helpers wanting him to unload after he had
been relieved of duty due to lack of available hours)). In the
questionnaire he returned to Mayflower, Reemsnyder for the first
time mentioned the federal "Whistleblower" statute. (CX 10)
However, the entire discussion was in the context of his dispute
with the helpers, and Reemsnyder made no mention of any alleged
hours of service or safety violations.
It was at this point that Reemsnyder returned to Mayflower in
Indianapolis, for what he believed would be a transfer to the
Electronic Dispatch Fleet (EDF). (Tr. 102-03) Upon arrival,
however, Joe Sida ("Sida"), who was the Fleet Manager for Mayflower
at the time, told Reemsnyder his contract was being cancelled, and
Mayflower attempted to repossess the tractor. (Tr. 103-05)
Reemsnyder himself testified that Sida told him his contract was
being cancelled due to the problems with the Bloomfield Hills
shipment. (Tr. 109) Reemsnyder appealed the cancellation to Tim
Wiley ("Wiley"), Vice-President of HHG, and Wiley reinstated the
contract. (Tr. 111)
The parties' accounts of the conditions of reinstatement vary
dramatically, however. Reemsnyder testified that Wiley agreed to
reinstate the contract if Reemsnyder agreed to be where the company
wanted him to be, at the scheduled time, regardless of whether an
hours of service violation would result, and to cease calling
various departments of Mayflower whenever a dispute arose. (Tr.
111) Reemsnyder testified that he did not object to the condi-
tions, for fear that his contract would be cancelled. (Tr. 113)
Wiley, on the other hand, testified that no discussion of hours of
service or safety regulations occurred. (Tr. 371-72) Instead,
[PAGE 8]
Wiley claimed he discussed Reemsnyder's tendency to begin work late
in the morning, and encouraged Reemsnyder to start work earlier to
better satisfy customers and to obtain the higher quality labor
which is available earlier in the day. (Tr. 370) He claims to
have overridden the cancellation based upon Reemsnyder's promise to
work harder to run a successful operation. (Tr. 371) With his
contract reinstated, Reemsnyder continued operating for Mayflower
until April, 1991. In early April, he became involved in a dispute
with a Mayflower agent over Reemsnyder's parking his rig on the
agent's property. (Tr. 89; RX 4, log at April 4-5) After
arguing with the agent, Reemsnyder refused to load the shipment,
and left. (Tr. 90) Reemsnyder refused the dispatcher's request to
return for the load, and continued on with his remaining shipments.
(Tr. 90-91)
The challenged event in this case, the termination of
Reemsnyder's contract, arose out of the events occurring on April
12, 1991. However, there is some dispute as to the actual date of
termination. Reemsnyder testified that on April 9, 1991, while on
his way to a delivery at South Amboy, New Jersey, he was delayed by
a breakdown caused by a broken coolant hose. (Tr. 114) Reemsnyde-
r's log for that day corroborates his testimony, evidencing a four
and one half hour delay. (Tr. 114-16; RX 4, log at April 9)
Upon his arrival in South Amboy, Reemsnyder was further delayed by
a dispute with the shipper over the acceptance of an uncertified
check. (Tr. 117-19) This dispute ultimately resulted in an
overnight delay, until a certified check could be obtained. (Tr.
119-20) These delays rendered it impossible for Reemsnyder to
arrive at his next scheduled pickup, in Bluefield, Virginia, at the
originally estimated time of 8 a.m. on April 12, 1991, due to hours
of service regulations. However, Richard Bowman ("Bowman"), who
had replaced Fox as Reemsnyder's dispatcher, testified that the 8
a.m. figure had been established several days earlier, prior to
Reemsnyder's problems on the South Amboy leg of the trip. (RX 9,
Deposition of Bowman, at 16) Reemsnyder's testimony
supports Bowman's assertion, as he stated on at least two occasions
that the dispatch was made prior to his problems in South Amboy.
(See Tr. 120 ("[D]ue to the fact they'd previously given me
this dispatch prior to arrival in South Amboy . . . there was no
way I could be [in Bluefield] within . . . the driving time was
(sic) that I had available"; Tr. 639 "Q: [H]ow much time did you
have to get [from] South Amboy to Blue Field (sic)? . . . A: I had
plenty of time on the day that I arrived in South Amboy, New
Jersey, assuming I could have unloaded on that day, there would
have been no problem getting there."))
Reemsnyder attempted to meet the 8 a.m. arrival time, driving
[PAGE 9]
ten and one half hours before stopping in Roanoke, Virginia to
rest.[4] (Tr. 121-22; RX 4, log at April 12) After nine
and one half hours off duty, Reemsnyder called Bowman, his
dispatcher, at approximately 10 a.m. (Tr. 645; RX 4, log at
April 12) Following his initial conversation with Reemsnyder,
Bowman called the shipper and informed him that, based upon the
time and distance, Reemsnyder would cover the approximately 100
miles and arrive in Roanoke between 12 and 1 p.m. (RX 9,
Deposition of Bowman, at 11) According to his log,
Reemsnyder left Roanoke at approximately 10:30 a.m., and drove one
and one half hours to Wytheville, Virginia, where he stopped at a
truck stop to get fuel, weigh the truck, and eat lunch. (RX 4,
log at April 12) Reemsnyder spent an additional hour
fueling and weighing the rig, and again called Bowman. (Id.;
Tr. 123, 646-47) Reemsnyder testified that Bowman was angry by
this point, and wanted Reemsnyder to get to the shipper's residence
as soon as possible. (Tr. 123, 648) Instead of leaving immediate-
ly, however, Reemsnyder ate lunch at the truck stop, and finally
set out for Bluefield at 1:30 p.m. (Id.; RX 4, log
at April 12)
The shipper lived outside the city limits, apparently in a
mountainous area, and Reemsnyder got lost attempting to find the
house. (Tr. 124, 648-49) Reemsnyder was forced to stop and call
the shipper, who drove to meet Reemsnyder, so that
Reemsnyder could follow him to the house. (Tr. 649-50) Reemsnyder
finally arrived at approximately 3 p.m. (Tr. 650) His problems
continued, however, because he could not get the truck to negotiate
the turn leading up to the shipper's house. (Tr. 124, 652) After
spending approximately one half hour trying to get the truck to the
house, Reemsnyder received a call at the shipper's house from Joe
Sida ("Sida"), the Planning Director in Mayflower's HHG division.
(Tr. 126, 652) The parties agree that Sida instructed Reemsnyder
not to load the shipment, to return to the truck stop and call Sida
back. (Tr. 126-27, 652-53; RX 8, Deposition of Sida, at
13)
The parties' accounts of the ensuing conversation between Sida
and Reemsnyder vary dramatically. Reemsnyder testified that Sida
informed him that his contract was being cancelled, and that he was
to bring the tractor and trailer to Indianapolis by the following
Monday morning. (Tr. 128, 654) Sida, on the other hand, testified
in a deposition that the shipper became so angry at Reemsnyder's
late arrival that he refused to allow him to load the shipment.
(RX 8, Deposition of Sida, at 12-13) Sida maintains that he
merely instructed Reemsnyder to return to Indianapolis for
"counseling", and that the decision to terminate the contract was
not made until after Reemsnyder failed to return for counseling.
[PAGE 10]
Reemsnyder contends that his contract was terminated due to
his refusal to violate DOT hours of service regulations in order to
arrive in Bluefield at 8 a.m. on April 12, and for his filing
complaints with various federal and state agencies in the months
preceding his termination, detailing what he believed to be safety
violations on the part of Mayflower.
B. Conclusions of LawWhether Reemsnyder Filed a Timely Complaint with the
U.S. Department of Labor
The STAA limits the filing of a complaint under the Act to a
period of 180 days following the event which is alleged to have
violated the Act. 49 U.S.C. §2305. In whistleblower cases,
it has been held that the time for filing a complaint begins
running "at the time of the challenged conduct and its notifica-
tion". English v. Whitfield, 858 F.2d 957, 961 (4th Cir.
1988). There is some dispute as to when Reemsnyder's contract was
terminated. Reemsnyder contends that Sida informed him over the
phone on April 12, 1991 that his contract was being cancelled, and
told him to return to Indianapolis to surrender the tractor and
trailer. (Tr. 128, 654) Sida, on the other hand, testified in
deposition that on April 12, 1991, he merely instructed Reemsnyder
not to load the truck and to return to Indianapolis for counseling.
(RX 8, Deposition of Sida, at 12-13) Sida admitted,
however, that he told Reemsnyder on April 12, 1991 that cancella-
tion was a "possibility". (Id., at 14) Reemsnyder
testified that in February, 1991, he felt Mayflower's alleged
agreement to transfer Reemsnyder to the EDF was, in reality, simply
a ruse to get him to return to Indianapolis to repossess his
tractor. (Tr. 104-05) Reemsnyder also testified that, based upon
his February, 1991 experience, he "knew. . .what was going to
happen". (Tr. 130) For this reason, Reemsnyder chose not to
return to Indianapolis as instructed, and instead remained in
possession of the tractor for a year, until April, 1992. (Tr. 134-
35)
Wiley, the Vice President of HHG, testified at the hearing
that he had concurred in Sida's decision to call Reemsnyder in for
counseling. (Tr. 459-60) I find the most likely explanation for
this apparent contradiction to be that Reemsnyder, based upon his
February, 1991 experience and Sida's threat of cancellation,
understood the order to return to Indianapolis to be the equivalent
of a cancellation. Such an interpretation is consistent with
Reemsnyder's subsequent failure to return to Indianapolis.
Sida and Wiley both testified that upon Reemsnyder's failure
[PAGE 11]
to return to Indianapolis, the decision to cancel his contract was
made on April 16, 1991. (Tr. 461; RX 8, Deposition of Sida,
at 15) They both also testified that the notice of cancellation
was not ultimately mailed to Reemsnyder until April 18, 1991.
Id. A cancellation letter dated April 18, 1991 is attached
to Sida's deposition as an exhibit. Based on all of these
considerations, I find that the cancellation of Reemsnyder's
contract occurred on April 18, 1991.
From April 18, 1991, the 180 day period for filing a complaint
ended on October 15, 1991. The record contains a memorandum of a
reported complaint to an OSHA investigator taken over the phone on
November 1, 1991. (AX 2) However, the same memorandum lists
October 21, 1991 as the date of filing in a different section. The
Regional Administrator of OSHA relied upon the October 21, 1991
date in making his finding that Reemsnyder's complaint was not
filed within the 180 day filing period. (AX 4) The record also
contains a letter dated October 11, 1991 from Jim Sasser, a United
States Senator from Tennessee, to OSHA, making reference to a
complaint previously filed by Reemsnyder against Mayflower. (AX 1)
Complainant testified that he initially contacted OSHA by phone in
July, 1991, after finding out that OSHA has jurisdiction over
§2305 of STAA. (Tr. 163-64; 172) He stated that after
waiting thirty days for OSHA to get back to him, he became worried
about the 180 day limitations period, and contacted Senator
Sasser's office, which in turn generated the October 11, 1991
letter to OSHA. (Tr. 163-64) Prior to contacting OSHA, Reemsnyder
had filed a complaint with DOT, and claims to have been under the
impression that DOT would pursue his §2305 claim if they were
to substantiate his allegations of safety violations. (Tr. 170-71)
Reemsnyder further testified that, following Senator Sasser's
letter, OSHA contacted him to begin an investigation, and claimed
that his initial inquiry had been lost, resulting in the delay.
(Tr. 176)
The regulations concerning the filing of a §2305
complaint provide,in relevant part, as follows:
(a) Who may file. An employee may file, or
have filed by any person on the employee's behalf, a
complaint alleging a violation of section 405.
(b) Nature of Filing. No particular form of
complaint is required.
* * *
(d) Time for filing. (1) Section 405(c)(1)
provides that an employee who believes that he has been
discriminated against in violation of section 405(a) or
(b) "* *
[PAGE 12]
*may, within one hundred and eighty days after such alleged
violation occurs," file or have filed by any person on the
employee's behalf a complaint with the Secretary.
* * *
(3) However, there are circumstances which will
justify tolling of the 180 day period on the basis of
recognized equitable principles or because of extenuating
circumstances . . . .
29 C.F.R. §1978.103.
Since Reemsnyder's testimony is both credible and uncontra-
dicted in the record, I find that his phone contact with OSHA in
July, 1991 is sufficient to comply with the generous language of
the regulation, which requires no particular form of complaint.
Several factors corroborate Reemsnyder's testimony.
First, the October 11, 1991 letter from Senator Sasser
referencing a previously filed OSHA complaint, and its timing both
support Complainant's testimony that he contacted Senator Sasser
after OSHA failed to follow up his complaint. (AX 1) In addition,
Reemsnyder's testimony that OSHA claimed to have lost the complaint
on two occasions is plausible, in that it explains the conflicting
dates contained on OSHA's memorandum concerning the complaint.
(Tr. 176; AX 2) Furthermore, in light of the language of the
regulation permitting the filing of a complaint on behalf of an
employee and the difficulties facing a pro se complainant such as
Reemsnyder, I find Senator Sasser's October 11, 1991 letter to be
sufficient in and of itself to constitute a filing within the 180
day period. 49 U.S.C. app. §2305(c)(1); 29 C.F.R.
§1978.102(a), (d); AX 1. Finally, equitable tolling has been
found to be proper in whistleblower cases where a complainant has
raised the statutory issue in question, but has done so in the
wrong forum. SeeEllis v. Ray A. Schoppert Trucking,
92-STA-28 (Sec'y Sept. 23, 1992), citing School District of City
of Allentown v. Marshall, 657 F.2d 16 (3d Cir. 1981). In this
case, Reemsnyder's mistaken belief that DOT would also pursue his
§2305 claim if it substantiated his allegations of safety
violations would justify an equitable tolling of the 180 day period
for an additional six days, until October 21, 1991, which is the
first date upon which OSHA documented Reemsnyder's claim. (Tr.
170-71, 227; AX 2) For all of these reasons, I find Reemsnyder's
complaint against Mayflower to have been timely filed.
Whether Reemsnyder Filed a Timely Request for Hearing
on his Claim Following the Secretary's August 27, 1992
Finding That the Complaint Should Be Dismissed[PAGE 13]
With regard to the request for hearing, the regulations
provide that the parties have thirty days following the receipt of
the preliminary findings of the Assistant Secretary in which to
object to the findings and request a hearing before an Administra-
tive Law Judge. 29 C.F.R. §1978.105(a). In Reemsnyder's
case, the Assistant Secretary issued his finding on August 27, 1992
that Complainant's §2305 complaint was not filed in a timely
manner. (AX 4) A cover letter of the same date informed
Reemsnyder of the thirty day period for filing an appeal. (AX 6)
Reemsnyder's request for a hearing was not made until October 15,
1992. (AX 8) Prior to the hearing, Mayflower filed a Motion to
Dismiss, based in part on the failure of Reemsnyder to request a
hearing within the allotted time. (AX 43) Reemsnyder produced
evidence, in the form of a signed certified mail receipt, that he
did not receive the Assistant Secretary's findings until September
17, 1992. (AX 11)
At the hearing, Mayflower renewed its Motion to Dismiss based
on the alleged untimely filing of the original complaint. (Tr.
155-81) However, Mayflower chose not to renew its motion as to the
timeliness of the appeal when offered the chance to do so at the
hearing. (Tr. 181-82, 613-14) In any event, I find the evidence
produced by Complainant in response to my Order to Show Cause and
offered into evidence at the hearing sufficient to show that his
request for a hearing was indeed filed within thirty days of his
receipt of the Assistant Secretary's findings. See AX 11.
Whether Reemsnyder was Discharged as a Result of
Having Engaged in Protected Activity
Reemsnyder bears the initial burden of establishing a
primafacie case of retaliatory discharge, which
raises an inference that protected activity was likely the reason
for the adverse action. Once successful, the burden of production
shifts to the Respondent to articulate a legitimate, nondiscrimina-
tory reason for its employment decision. If the Respondent rebuts
the inference of retaliation, the Complainant then bears the
ultimate burden of demonstrating by a preponderance of the evidence
that the legitimate reasons were a pretext for discrimination.
Moon v. Transport Drivers, Inc., 836 F.2d 226 (6th Cir.
1987).
To establish a primafacie case of retaliatory
discharge, the Complainant must prove that he engaged in protected
activity, that he was the subject of adverse employment action,
that his employer was aware of the protected activity, and that
there was a causal link between his protected activity and the
adverse action of his employer. Id. The evidence produced
must be sufficient to raise
[PAGE 14]
the inference that the protected activity was the likely reason for
the adverse action. Osborn v. Cavalier Homes of
Alabama, Inc., 89-STA-10 (Sec'y July 17, 1991). Section 2305
provides:
(a) No person shall discharge, discipline, or in any
manner discriminate against any employee with respect to
the employee's compensation, terms, conditions or
privileges of employment because such employee (or any
person acting pursuant to a request of the employee) has
filed any complaint or instituted or caused to be
instituted any proceeding relating to a violation of a
commercial motor vehicle safety rule, regulation,
standard, or order, or has testified or is about to
testify in any such proceeding.
(b) No person shall discharge, discipline, or in any
manner discriminate against an employee with respect to
the employee's compensation, terms, conditions, or
privileges of employment for refusing to operate a
vehicle when such operation constitutes a violation of
any Federal rules, regulations, standards, or orders
applicable to commercial motor vehicle safety or health,
or because of the employee's reasonable apprehension of
serious injury to himself or the public due to the unsafe
condition of such equipment. The unsafe conditions
causing the employee's apprehension of injury must be of
such nature that a reasonable person, under the circum-
stances then confronting the employee, would conclude
that there is a bona fide danger of an accident, injury,
or serious impairment of health, resulting from the
unsafe condition. In order to qualify for protection
under this subsection, the employee must have sought from
the employer, and been unable to obtain, correction of
the unsafe condition.
Protected Activity
Under subsection (a) of §2305, protected activity may be
the result of complaints or actions with agencies of federal or
state governments, or it may be the result of purely internal
activities, such as complaints to management, relating to a
violation of a commercial motor vehicle safety rule, regulation,
standard, or order. 49 U.S.C. app. §2305(a). SeealsoReed v. National Minerals Corp., 91-STA-34
(Sec'y July 24, 1992); Davis v. H.R. Hill, Inc., 86-STA-18
(Sec'y March 18, 1987).
This record is replete with contentions by Reemsnyder and
[PAGE 15]
Mayflower management that Reemsnyder complained regularly about a
wide variety of employment matters, including safety concerns. In
particular, the record contains testimony by Reemsnyder of his
concerns that numerous loads assigned to him during his ten month
tenure with Mayflower involved pickup and delivery schedules which
could not be met without violating DOT hours of service regula-
tions. These concerns were made known by Reemsnyder to his
dispatchers at Mayflower, including Fox and Bowman. See,
e.g., Tr. 65, 78-79, 94. On at least one occasion,
Reemsnyder directly approached David Pile ("Pile"), Mayflower's
Director of Safety, to complain about the dispatching practices of
Fox. (Tr. 66-68, 77-79). Complainant's log contains an entry
dated March 1, 1991 in which Reemsnyder notes that Bowman ordered
a series of deliveries to be made on that date which Reemsnyder
believed would result in an hours of service violation. (RX 4,
log at March 1) Reemsnyder noted that he had informed
Bowman the previous day that he had eight and three quarter hours
available for March 1st. Id. At 11:45 a.m. on March 1st
Reemsnyder had exhausted his available duty hours, and all of his
continued driving until 4 p.m. that day was in violation of the
Seventy Hour rule. I find that this log entry constitutes a
complaint within the meaning of §2305(a), as these logs were
submitted to Mayflower, as required by law. A similar notation
appears on Reemsnyder's March 5th log, although no hours of service
violation occurred on that day. (RX 4, log at March 5) A
third notation appears on Reemsnyder's April 3rd log, complaining
of an order of two pick ups made by Bowman. (Id., at April
3) A violation of the Fifteen Hour rule occurred on that day.
Id. The last two such notations appear on the logs for
April 10th and 12th, but no hours of service violations occurred on
either of those days. (Id., at April 10 and 12)
The record also contains evidence of various complaints filed
with governmental agencies concerning alleged violations of safety
rules. Only four such complaints, however, were made prior to the
termination of Reemsnyder's contract on April 12, 1991. The
earliest complaint was made on March 19, 1991, after a dispute
between Mayflower and Reemsnyder over whether a driver may comply
with hours of service regulations by going off duty while hired
labor unloads his trailer. (Tr. 616-17, 634; CX 5) Reemsnyder
filed a second complaint with DOT on March 28, 1991. (Tr. 634-35)
On April 5, 1991, Reemsnyder's mother filed a request for an
interpretation of various DOT rules (Tr. 636; CX 4), and a similar
letter was sent by Reemsnyder to DOT on April 6, 1991. (Tr. 636)
I find that the latter two items, beings mere requests for
interpretations, do not constitute complaints within the meaning of
the Act and are not protected activity. I find that the remainder
of the complaints, however, both to the regulatory agencies and the
[PAGE 16]
internal complaints to Mayflower management, did constitute
protected activity.
Section 405(b) of the STAA prohibits discriminatory treatment
of employees for refusing to operate a vehicle because of the
employee's reasonable apprehension of serious injury to himself or
to the public due to the unsafe condition of such equipment. 49
U.S.C. app. §2305(b). This ground for refusal to drive also
requires that the unsafe condition causing the employee's apprehen-
sion of injury must be such that a reasonable person, under the
circumstances, would perceive a bona fide hazard and the employee
must have sought from his employer, and been unable to obtain,
correction of the condition. Reed v. National Minerals
Corp., 91-STA-34 (Sec'y July 24, 1992). The record contains
evidence of only one occasion on which Reemsnyder refused to drive
until repairs were made, which occurred in November, 1990, in
Panama City, Florida. (Tr. 46-48) Reemsnyder's own admission,
however, establishes that upon his refusal to move the trailer, the
brakes were in fact permanently repaired, and that no one from
Mayflower threatened him at the time. (Tr. 48-49) Therefore, the
"reasonable apprehension" clause of §2305 is inapplicable in
this case.
The employee protection provision of the STAA also prohibits
an employer from discharging or disciplining an employee for
refusing to operate a motor vehicle when such operation constitutes
a violation of any Federal rules, regulations, standards, or orders
applicable to commercial motor vehicle safety. Boone v. TFE,
Inc., 90-STA-7 (Sec'y July 17, 1991). The "federal violation"
clause is not triggered, however, unless there is proof of a work
refusal. The record contains evidence of two occasions on which
Reemsnyder refused to accept a dispatch. (Tr. 78-91) One of these
refusals, however, concerned a dispute with an agent, and was
unrelated to safety concerns. (Tr. 89-91) The other concerned a
refusal to accept a dispatch in New York due to Reemsnyder's fear
it would result in a violation of DOT's "fatigue rule".[5] Tr.
78-79; CX 2, DOT Safety Regulations 49 C.F.R. §392.3.
Reemsnyder testified that upon this refusal, Pile immediately
removed all the loads, and Reemsnyder was assigned a new load.
(Tr. 79-80) However, the requirement that the employee seek
corrective action from his employer and be unable to obtain it,
limits only the "reasonable apprehension" clause. Hadley v.
Southeast Coop. Serv. Co., 86-STA-24 (Sec'y June 28, 1991).
Therefore, I find that Reemsnyder's refusal to accept the New York
dispatch likewise constitutes protected activity.
Adverse Employment Action and Causal Relationship[PAGE 17]
Respondent, Mayflower, took adverse employment action against
Reemsnyder when it terminated his contract on April 18, 1991. A
complainant must prove that the employer was aware of the protected
activity when it took the adverse employment action, and he or she
must raise an inference of causation, thus establishing a
primafacie case of retaliatory discharge. Osborn
v. Cavalier Homes of Alabama, supra. The Complainant
testified that Mayflower had no formal notice prior to his
termination of any of the complaints he had filed with regulatory
agencies. (Tr. 619-31) The Complainant contended, however, that
Mayflower had notice of his intent to file a complaint with DOT due
to his noting such an intent on a Quality Control report he
submitted to Mayflower. (Tr. 620-21, 636) The Quality Control
report of record contained reference to an intent to file a
complaint with the Internal Revenue Service (IRS) and the Immigra-
tion and Naturalization Service (INS). (CX 10) However, that
report dealt with a dispute between Reemsnyder and his hired labor,
and was unrelated to any safety issue. Therefore, I find it
insufficient to constitute notice to Mayflower of any safety
complaint, and further find that Mayflower had no knowledge of any
of the formal complaints filed with DOT by Reemsnyder prior to the
termination of the contract. The causation element of the
primafacie case is not established when an employer
has no knowledge of the protected activity. Gay v. Burlington
Motor Carriers, 92-STA-5 (Sec'y May 20, 1992).
However, by the very nature of his direct communication with
Mayflower, I find that Mayflower did have knowledge of the
remainder of Reemsnyder's protected activity, namely the internal
complaints concerning hours of service violations expressed to Fox,
Bowman, and Pile, the logs alleging violations by Bowman submitted
to Mayflower, and the one instance in which Reemsnyder refused to
accept a dispatch due to the fatigue rule. Based upon Mayflower's
awareness of the protected activity engaged in by Reemsnyder, and
the proximity of the submission of the March 1 and April 3, 1991
logs noting alleged dispatches in violation of hours of service
regulations to the termination, I find that Complainant has raised
an inference that the protected activity was likely the reason for
the adverse employment action, and has therefore established a
primafacie case that his termination was motivated
by his protected activity.
Rebuttal and Pretext
Since Reemsnyder has established a primafacie
case of unlawful employment discrimination, the burden of produc-
tion now shifts to Mayflower to establish a legitimate, nondiscrim-
inatory
[PAGE 18]
reason for having terminated the contract. Mayflower argues that
Reemsnyder's contract was not terminated for any refusal to drive
or for safety-related complaints to management, but for his late
arrival in Bluefield, Virginia on April 12, 1991, his failure to
return to Indianapolis for counseling in regard to his problems
with customer service, poor communication with his dispatcher, and
his growing debt to Mayflower. Each of the three Mayflower
employees involved in the termination either testified or were
deposed concerning the reasons for the termination.
Sida, the Fleet Manager, stated in a deposition that Reemsnyd-
er was terminated due to "very poor" performance as a van operator,
his failure to make timely pickups and deliveries, poor customer
relations, and his debt to Mayflower. (RX 8, Deposition of
Sida, at 10-17) Sida characterized Reemsnyder as a "lazy
individual" who was unwilling to put forth the effort needed to
succeed as an owner/operator. (Id. at 11) Sida admitted
that he was aware of Reemsnyder's log notations concerning Bowman,
but denied that it was a factor in his decision. (Id. at
18) Bowman, the dispatcher, stated that Reemsnyder's performance
was the poorest of the thirty to thirty-five drivers he oversaw.
(RX 9, Deposition of Bowman, at 20) Bowman also noted
customer complaints, failure to meet pickup and delivery time
frames, and a growing deficit to Mayflower on his tractor and
expenses. (Id., at 19-21) Wiley, the Vice President of HHG
who had previously reinstated Reemsnyder's contract in February,
1991, noted that all of the same factors, plus Reemsnyder's failure
to return to Indianapolis for counseling, led him to concur in the
decision in April, 1991. (Tr. 375)
The evidence of record provides support for each of these
alleged nondiscriminatory reasons for termination of the contract.
As detailed previously in this decision, Reemsnyder's own testimony
describes a pattern of mishaps and failures to meet pickup and
delivery time frames which was continuous throughout his ten
month tenure at Mayflower. Reemsnyder's log supports the testimony
of Wiley and Pile to the effect that Reemsnyder's habit of starting
work late in the morning led to frequent problems with customer
satisfaction. The testimony of Reemsnyder's own mother even
supports this assertion. See Tr. 289 ("You [Reemsnyder]
picked up on the days that were required to be picked up. Maybe
not at 9:00 in the morning, but you definitely had your pickup days
on schedule.") The problem with pickups and deliveries was further
exacerbated by Reemsnyder's failure to maximize his available
driving time. Most of the hours of service violations which
occurred were of short duration, fifteen to thirty minutes, and
most could have been avoided by simply planning so that operations
could be ended fifteen or thirty minutes earlier. The logs also
[PAGE 19]
evidence a tendency to take significantly more than the required
eight hours off duty, frequently in chunks of twelve to twenty-four
hours. Not all of Mayflower's solutions to Reemsnyder's hours of
service problems are viable, however, because although they comply
with the Ten and Fifteen Hour rules, they fail to take into account
the Seventy Hour Rule's limitations. The Seventy Hour rule greatly
limits the ability of a driver to alternate periods of ten driving
hours and eight off-duty hours. Nevertheless, Reemsnyder failed to
produce evidence of even one occasion on which he was given a
dispatch so stringent that, had he better planned his hours of
service, he still could not have complied with all three rules.
Furthermore, there are also several points in the logs where
Reemsnyder notes off-duty periods of more than one, but less that
eight, hours, which are of no help in complying with hours of
service limitations and which impede maximization of driving time.
The record also supports Mayflower's allegations of poor
customer relations and failure to communicate with dispatchers.
Reemsnyder's testimony includes accounts of disputes with custom-
ers, Mayflower agents, and hired laborers. See,
e.g., Tr. 88-89. Reemsnyder repeatedly made reference to
the fact that he is an independent contractor having control over
his starting times and his calls to dispatchers. Although this may
be true, he apparently failed to see that abuse of that flexibility
can drastically impair customer service, which is a critical
consideration in any competitive, consumer-oriented business such
as the moving industry. See, e.g., Tr. 428-29, 446-
47. As to communicating with his dispatchers, Reemsnyder's account
of the events leading up to termination of his contract supports
the assertions made by the Mayflower decisionmakers. Reemsnyder
testified that he originally called in at 10 a.m. on April 12,
1991, to inform the dispatcher he was not yet in Bluefield. (Tr.
122) When asked how far away from Bluefield he was, Reemsnyder
testified that he replied: "I don't know. I'll get there when I
get there. Maybe 100 miles." Id. Later, Reemsnyder
stopped at a truck stop to get fuel, not far from Bluefield, where
he again called his dispatcher, Bowman. (Tr. 647) Reemsnyder
testified that Bowman was already upset with him, and urged him to
hurry over to the shipper's house, as he was already behind
schedule. Reemsnyder described his response as follows: "He didn't
like [the fact that Reemsnyder was stopping to eat lunch], and he
immediately started arguing with me, but I didn't say anything to
him. I just hung up the phone, I got my sandwich, I ate it, and
then I went over to the shipper's place." (Tr. 648)
Finally, the record, including Reemsnyder's own testimony,
also supports Mayflower's assertion that Reemsnyder was operating
at a deficit, which was growing at the time the contract was
[PAGE 20]
cancelled. (Tr. 200, 462) Reemsnyder testified throughout the
hearing that this deficit was due to a lack of profitable loads
being given to him by Mayflower, and goes so far as to allege a
conspiracy on the part of Mayflower to cause him to fail financial-
ly so that his tractor could be repossessed and resold. (Tr. 200,
205) Whatever the source of Reemsnyder's financial difficulties,
the fact remains that his deficit was growing at the time of
termination, and constitutes a legitimate, nondiscriminatory
justification for the termination. Based on all of these consider-
ations, I find that Mayflower has rebutted the inference of
retaliation.
Mayflower having rebutted the inference of retaliation, it is
now incumbent upon Reemsnyder to demonstrate by a preponderance of
the evidence that the legitimate reasons asserted by Mayflower were
pretextual. Simply stated, I find that Reemsnyder has failed to
produce any substantial evidence which tends to show that Responde-
nt's asserted reasons for the termination are unworthy of belief.
The Complainant has gone to great lengths to establish that hours
of service violations occurred during the term of his contract with
Mayflower, and these violations are noted. However, hours of
service violations, alone, are insufficient to meet Complainant's
burden of proving a retaliatory discharge under §2305. They
are, however, related to Reemsnyder's theory of the case.
Reemsnyder's argument, ultimately, is that the events on April
12, 1991 with regard to the Bluefield incident served as a pretext
for the real reason his contract was terminated, namely his
engaging in protected activity. As has been extensively developed,
Reemsnyder's protected activity consisted of his internal com-
plaints regarding the dispatching practices of Fox and Bowman,
including those noted in his logs, and his refusal to accept a
dispatch on one occasion due to belief that he would violate the
fatigue rule as a result.
Reemsnyder's theory centers around a discussion he had with
Wiley in February, 1991, in which Reemsnyder alleges Wiley agreed
to reinstate his contract on the condition that Reemsnyder arrive
at his pickups and deliveries at the scheduled times, regardless of
whether it would require hours of service violations. (Tr. 111)
I find it likely that hours of service were discussed at this
meeting, and perhaps that Wiley encouraged Reemsnyder to make a
greater effort to maximize his hours of service, but I conclude
that Reemsnyder's allegation of an ultimatum requiring hours of
service violations is not borne out by the evidence. Reemsnyder's
testimony on this issue was contradictory. When asked if he had
ever been told to drive beyond hours of service, Reemsnyder
[PAGE 21]
replied: "Well, not in those words but I've been dispatched in
terms of distances that are obviously beyond speed limit rules for
the state." (Tr. 56) Reemsnyder later stated that he was never
required to travel from point A to Point B within ten hours,
regardless of the mileage involved, but stated that it was
"understood". (Tr. 60)
As I have previously found, the only complaints regarding
hours of service violations of which Mayflower personnel had notice
at the time of the termination were the logs he submitted with
remarks concerning Bowman's dispatching practices, and a conversa-
tion with Pile concerning the same subject. Hours of service
violations actually occurred on only two of the days on which
Reemsnyder made notes in the logs. Reemsnyder alleges that
Mayflower had knowledge of a formal complaint filed with DOT on
March 19, 1991 by means of a quality control report he submitted,
but the evidence does not support this contention. The only
quality control report in evidence fails to mention hours of
service of the DOT. (CX 10) Reemsnyder alleged that an earlier
such report exists, but failed to produce it at the hearing. (Tr.
145-50) Complainant was given twenty days post-hearing to submit
the document, but failed to do so. In response to Reemsnyder's
request, the Regional Solicitor and OSHA each submitted copies of
the quality control report Reemsnyder had sent them, but both were
copies of the same documents already in the record.
As to Complainant's other protected activity, namely his
refusal to accept a dispatch in Albany, New York in November, 1990,
I find this to have been a non-factor in his termination as well,
for two reasons. First, its remoteness in time to Reemsnyder's
actual contract termination suggests it did not have a significant
effect on Mayflower's decision. This incident took place prior to
Sida's initial attempt to terminate Reemsnyder's contract in
February, 1991, yet Wiley chose to override the decision and give
Reemsnyder a second chance. Secondly, by Reemsnyder's own
admission, Pile, the Safety Director, immediately removed all of
the loads without argument, and Reemsnyder was assigned another
load. (Tr. 79)
In evaluating the entire record, I conclude that the over-
whelming weight of the evidence demonstrates that the reasons
advanced by Mayflower for the termination of Reemsnyder's hauling
contract are legitimate and not pretextual. The evidence in this
case is susceptible to no conclusion but that Mayflower would have
reached the same employment decision even in the absence of the
protected activity in which Complainant engaged.
RECOMMENDED ORDER
WHEREFORE, IT IS RECOMMENDED that the complaint of Robert R.
Reemsnyder be DISMISSED.
DANIEL J. ROKETENETZ
Administrative Law Judge
[ENDNOTES]
[1] In this decision, "CX" refers to Complainant's Exhibits, "RX"
refers to Respondent's Exhibits, "AX" refers to Administrative
Exhibits, and "Tr." refers to the Transcript of the hearing.
[2] "Hours of Service" regulations are Department of Transpor-
tation (DOT) limitations on the number of hours a commercial
truck driver may operate his vehicle before stopping for rest.
There are three such regulations referred to in this decision.
Briefly summarized, the "Ten Hour Rule" states that a driver may
accumulate a maximum of ten driving hours before stopping for
eight hours of off-duty time. The "Fifteen Hour Rule" applies to
time spent on duty, but not driving, such as loading and unload-
ing, etc., and requires that a driver accumulate no more than
fifteen "duty hours" (which includes driving and non-driving
time) before stopping for eight hours of rest. Finally, the
"Seventy Hour Rule" forbids the accumulation of more than seventy
total duty hours in an eight day period. These regulations are
contained in Federal Motor Carrier's Safety Regulations 49
C.F.R. §395.3. (CX 2) They were further explained in the
testimony of David Pile, Director of Safety at Mayflower. (Tr.
512-14)
[3] Such mileage is known as "deadheading", and occurs, for
example, when a van operator unloads his trailer in city A, and
must then travel empty to city B to pick up his next load. (Tr.
367)
[4] By driving ten and one half hours without eight hours off
duty, Reemsnyder violated the Ten Hour rule.
[5] Refusal to operate a vehicle due to fatigue constitutes
protected activity. Self v. Carolina Freight Carriers
Corp., 91-STA-25 (Sec'y Aug. 6, 1992).
