DATE:  December 15, 1992
CASE NO.: 92-STA-0018


IN THE MATTER OF

WILBERT L. GREATHOUSE,

          COMPLAINANT,

     v.

GREYHOUND LINES, INC.,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     Before me for review is the July 2, 1992, (Recommended)
Decision and Order of the Administrative Law Judge (ALJ) in this
case arising under Section 405, the employee protection
provision, of the Surface Transportation Assistance Act of 1982
(STAA), 49 U.S.C. app. § 2305 (1988).  Neither party has
filed a brief as permitted by 29 C.F.R. § 1978.109(c)(2)
(1991).
     Complainant alleged that Respondent discharged him because
he refused to drive a bus in violation of the hours of service
regulations.  The STAA prohibits an employer from discharging an
employee for refusing to operate a vehicle in violation of a
Federal regulation, 49 U.S.C. § 2305(b), including the
hours-of-service regulations at 49 C.F.R. Part 395 (1991).  See
Ass't Sec'y of Labor and Hamilton v. Sharp Air Freight
Service, Inc., Case No. 91-STA-49, Dec. and Order of
Rem., July 24, 1992, slip op. at 1-2.
     Both the STAA, 49 U.S.C. § 2305(c)(1), and the
implementing regulations, 29 C.F.R. § 1978.102(d)(1),
require that a complaint be filed within 180 days after the
occurrence of the alleged 
[PAGE 2]
violation.  Although the 180 day limitation is subject to
equitable tolling, 29 C.F.R. § 1978.102(d)(2), (3);
see Hicks v. Colonial Motor Freight Lines, Case No.
84-STA-20, Sec. Dec., Dec. 10, 1985, slip op. at 7-12,
Complainant has not alleged that the limitation should be tolled
in this case.
     The ALJ found that Complainant was discharged on June 18,
1992, and that he filed his complaint by telephone on December
16, 1992, the 181st day following his discharge.  The ALJ
recommended dismissing the complaint because it was not filed
within 180 days of the discharge.
     Although Complainant initially argued that the date of
termination was June 25, 1991 (date of letter confirming his
discharge), Complainant later indicated that he was discharged on
June 18.  T. 258.  Respondent confirmed that on June 18, 1991,
Driver Manager Jasper told Complainant he was fired.  T. 143. 
Thus, the parties agree that the discharge occurred on June 18,
1991.    
     There is no dispute that the telephonic complaint was made
on Monday, December 16, 1991. [1]   See Court Ex. 1.  The
fact that Complainant made his telephonic complaint on a Monday is of
critical importance because:
     [i]n computing any period of time under these
     rules . . . [2]  the time begins with the day following
     the act, event, or default, and includes the last day
     of the period, unless it is a Saturday,
     Sunday or legal holiday observed by the Federal
     Government in which case the time period includes
     the next business day.

29 C.F.R. § 18.4(a) (1991) (emphasis added).  The ALJ did
not consider whether the complaint was timely filed because the
180th day fell on a Sunday.  I find that the complaint was timely
filed, since the 180-day period included the next business day,
Monday, December 16, 1991.  See Stokes v. Pacific Gas &
Elec. Co./Bechtel Power Corp., Case No. 84-ERA-6, Sec. Order
of Remand, Feb. 19, 1987, at slip op. 2-3 (construing application
of 29 C.F.R. § 18.4(a) in case under the Energy
Reorganization Act).  
     Both parties had the opportunity at the hearing to make a
case on the merits.  In view of the ruling on timeliness,
however, the ALJ did not discuss the merits in his Recommended
Decision.  Since there is conflicting testimony on issues in the
case and the ALJ heard the witnesses and observed their demeanor,
the ALJ should rule in the first instance on witness credibility
and the merits.  There is no need to take additional evidence.    
     It is ORDERED that this case is remanded to the ALJ to make
a recommended decision on the merits of the complaint.
     It is anticipated that the ALJ will be able to complete this
[PAGE 3]
further review and submit a recommended decision and order within
60 days.
     SO ORDERED.

                              LYNN MARTIN
                              Secretary of Labor

Washington, D.C.



[ENDNOTES]
           
[1]  I take administrative notice that in 1991, December 16 fell
on a Monday.

[2]  The Rules of Practice and Procedure for Administrative
Hearings Before the Office of Administrative Law Judges, 29
C.F.R. Subpart 18, apply "except to the extent that they are
inconsistent with a rule of special application as provided by
statute, executive order, or regulation," in which case the
statute or regulation is controlling.  29 C.F.R. § 18.1(a). 
Here, neither the statute, the implementing regulations, nor an
executive order establishes the method for computing the 180 day
statute of limitations for filing a complaint.