Date: October 30, 1987
Case NO. 87-STA-19

IN THE MATTER OF

KERRY W. HARPER,
    COMPLAINANT

    v.

OVERLAND EXPRESS, INC.,
    RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

    This proceeding arises under the employee protection provision of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1982), which prohibits covered employers from discriminating against employees who have engaged in certain protected activities.

    On July 22, 1987, the Administrative Law Judge (ALJ) issued a Recommended Order of Dismissal dismissing, pursuant to 29 C.F.R. § 18.39(b), the complaint of Complainant Harper because of abandonment. This order is now before me for review. Based upon review of the record, I agree with the ALJ's finding that Complainant Harper abandoned his request for hearing and with the ALJ's conclusion that Section 18.39(b) of 29 C.F.R. is applicable. See 29 C.F.R. § 1978.10(a). I do not, however, agree with the ALJ's recommendation that the complaint in this case be dismissed.

    Section 18.39(b) of 29 C.F.R. does not provide for dismissal of a complaint but only permits the dismissal of a request for a hearing.¹ Dismissal of a request for hearing operates to change the posture of the case to one where no request for a hearing has been filed. Where there is no request for a hearing, the statute decrees that the preliminary findings and order on the merits of the complaint be deemed the final administrative order. 49 U.S.C. app. § 2305(c)(2)(a). See also 29 C.F.R. § 1978.106(b)(2). Consequently, rather than recommend that the complaint in this case be dismissed, the ALJ should have recommended that, upon my review of this case and concurrence in the finding

¹The ALJ denied Respondent's request for a default judgment against Complainant. The provision in 29 C.F.R. § 18.39(b) permitting the issuance of a default decision, a provision not applicable here because of 49 U.S.C. app. § 2035(c)(2)(a), also does not afford a basis for dismissal of a complaint.

In the matter of:

Overland Express# Inc., and Kerry W. Harper
Section 405 complaint, Case File No. 3-0050-87-503

    Pursuant to Section. 405 of the Surface Transportation Assistance Act of 1982 (hereinafter., "STAA") (49 U.S.C. 2305), Complainant, Kerry W. Harper, filed a timely complaint with the Secretary of Labor, alleging that Overland Express, Inc., discriminatively discharged him in November 1986 in reprisal for refusing to operate a tractor-trailer by exceeding allowable on duty and driving times as regulated by the U.S. Department of Transportation. Overland Express# Inc.# denied the allegation and states Harper, a driver, was discharged for causing a freight delay and reporting. himself available for driving duty when he was, in fact, not available due to a lack of sufficient allowable driving hours. Following an investigation of the matter by a duly authorized investigator, The Secretary of Labors acting through his agent, the Regional Administrators Region III,, for the Occupational Safety and Health Administrations pursuant to Section 405 of STAA, the Secretary's Order 9-83, 48 F.R. 35736 (August 5, 1983) and further delegation of authority contained in the Assistant Secretary's OSHA Instruction DIS.6, dated December 12, 1983, finds that there is reasonable cause to believe the following facts:

    1. (a) Overland Express* Inc.# is engaged in interstate trucking operations and does maintain a place of business in Indianapolis, Indiana. In the regular course of this business, Respondent's employees operate motor vehicles in interstate commerce. consequently, Respondent in a commercial motor carrier.

    (b) Respondent is now and, at all times material herein, are persons as defined in Section 401(4) of STAA (49 U.S.C 2301(4)).

    2. (a) Overland Express, Inc., hired Harper as a driver of a commerical motor vehicle, to wit, a tractor and trailer with a gross vehicle weight rating in excess of 10,000 pounds.

    (b) At all times material herein, Kerry W. Harper was an employee in that he was a driver of a commerical motor vehicle having a gross vehicle weight rating of ten thousand pounds or more used on the highways in interstate commerce to transport cargo and that he was employed by a commerical motor carrier and, in the course of his employment, directly affected commerical motor vehicle safety. (49 U.S.C. 2301)

3. (a) On or about December l, 1986, Harper filed a complaint with the Secretary of Labor alleging that Respondent, Overland Express Inc., terminated his employment in reprisal for his refusal to operate a tractor-trailer when he had insufficient remaining driving hours to safely operate such a vehicle. This complaint is timely filed.

    (b) The Secretary, acting through his duly authorized agents, thereafter investigated the above complaint in accordance with Section 405 (c) (2) (A) (49 U.S.C. 2305 (a)(2)(A), and has determined that there is reasonable cause to believe that Respondent did not violate Section 405(b) of STAA.

4. On November 26, 1986, Respondent discharged Complainant after he refused to complete an accepted trip, thereby causing a delay in freight and a customer service failure.. Complainant operates from on the road rather than an assigned terminal and receives dispatches for trips telephonically from Respondent's Indianapolis# Indiana, headquarters. Company policy requires drivers to keep track of their available driving/working hours and they are not to report themselves as available for trips when they lack sufficient remaining driving hours during a given period. On November 25, 1986, at approximately 7 p.m., Complainant had one and three-quarter hours available driving timer but would have gained an additional nine and three-quarter available hours by midnight of that date. Although he had not rested and/or taken an appropriate break at that point, he called-in reporting himself available for dispatch. Once. Respondent issued the dispatch (from LaVergne, Tennessee to Milton, West Virginia), Complainant proceeded to LaVergne and then claimed he lacked sufficient hours to make that trip without first taking a required eight (8) hour rest break. To take that break would have taken him past the scheduled delivery time of 9 a.m., on November 26, 1986. He refused this dispatch and further refused an alternate dispatch which he could have run legally in accordance with appropriate Bureau of motor Carrier Safety regulations. In refusing the latter dispatch Cpmplainant was alleged to have told his Dispatcher that the only direction he was going was "towards home". His actions caused a delay in freight and Respondent effected his termination as a result.

5. Although Complainant worked from 6 a.m., to 7 p.m., on November 25, 1986, without a rest break, he reported (telephonically) for further dispatch to his employer. Once dispatched, he protested that he could not complete the assigned run on schedule without a rest break. His actions caused a delay in freight and violated the Respondent's policy that drivers not report themselves available for dispatch when they lack sufficient, legal driving hours remaining for a given period. Submitted documentation by the Respondent tends to support the company's action in terminating Complainant and further tends to support the opinion of some company officials that Complainant was primarily concerned with returning home for the Thanksgiving Holidays rather than accept dispatches that would have taken him further away from his area of residence, Lynchburg, Virginia. 6. it is concluded that Respondent's denial of continued employment to the Complainant does not constitute a violation of Section 405 of STAA. (49 U.S.C. 2305).

Date 05 MAY 1987

LINDA R. ANKU
Regional Administrator
U.S. Department of Labor
Occupational Safety and Health
Administration