On May 26, Complainant reported for work at 11:00 a.m.⁵ He drove to Empire Freezers where he spent until 10:30 p.m. loading cargo for transport to Brattleboro. He returned to B & Q at 11:00 p.m. to have a mechanical problem on the tractor checked. After going off duty for four hours, Complainant returned to B & Q at 3:30 a.m. on May 27 and departed for Brattleboro at 4:01 a.m. Complainant spent the entire trip in either "on-duty not driving" or "driving" status, driving to Brattleboro, unloading cargo at two locations, and returning to Phoenix.⁶ T. 22-23.

At 9:05 p.m., Complainant arrived at B & Q where he fueled his truck, completed his paperwork, and clocked out. He went off duty between 9:30 and 9:45 p.m. on May 27.⁷ See T. 198-206, 211, 222. Complainant was scheduled for an appointment at Empire Freezers at 7:15 a.m. on May 28. The pre-trip inspection of his vehicle and travel from B & Q to Empire Freezers would have necessitated his returning on duty at approximately 6:15 a.m. The intervening off-duty interval would have spanned a period slightly in excess of eight hours.

   The restrictions in issue imposed under 49 C.F.R. § 395.3(a) are-twofold: (1) After a driver has been on duty for 15 hours, he may not drive and (2) a driver may drive up to 10 hours following eight consecutive hours off duty. Complainant's scheduled hours off duty between 9:45 p.m. on May 27 and 6:15 a.m. on May 28 would have started anew any computation period for these regulatory maximums. As of 6:15 a.m. on May 28, Complainant would not have accumulated any hours toward the 15 hour on-duty limitation. Accordingly, under this portion of the regulation, Complainant legally could have driven his vehicle on May 28 as assigned for up to 10 hours.⁸

   Similarly, at 6:15 a.m. on May 28, Complainant would not have been in violation of the 70-hour/eight-day prohibition under 49 C.F.R. § 395.3(b). This prohibition utilizes a "rolling" or "sliding" scale to determine maximum "on-duty" time. It limits the number of hours that a driver may remain on duty during a given 24-hour period depending on the number of hours worked during the preceding seven days.⁹ <I> </I>The hours to be worked on day eight, when combined with those worked on days one through seven, may not exceed 70.¹⁰

   Complainant worked the following hours during the period May 20-28, 1987. On Wednesday, May 20, Complainant was on duty for 11.5 hours. His on-duty hours

totaled 21.0 on Thursday, May 21, and 10.0 on Friday, May 22. Complainant was off duty on Saturday, May 23, Sunday, May 24, and Monday, May 25. T. 17-20. On Tuesday, May 26, Complainant's on-duty non-driving time totaled 11.5 hours. He drove for one hour on May 26. Complainant was on duty for a period of 18.0 hours on Wednesday, May 27.¹¹ This period was comprised of 11.25 hours of driving time and 6.75 hours of on-duty, non-driving time. On May 28, Complainant was scheduled to transport a small load of cargo to Andover, Massachusetts, on a "one-stop, one-day" assignment. See Exh. R-8.

   Upon concluding his on-duty time on the evening of May 27, Complainant had exceeded, by a margin of three hours, the 70-hour limit for the eight-day period ending at midnight. In calculating permissible on-duty hours for the subsequent 24 hours, i.e., from 12:01 a.m. to midnight on May 28, all hours worked on May 20--day one of the former eight-day period--are dropped from the computation. The eight-day period ending at midnight on May 28 began at 12:01 a.m. on May 21, and included the following hours worked by Complainant:

May  21          21.0 hours
May  22          10.0
May  23            0
May  24            0
May  25            0
May  26          12.5
May  27          18.0
May  28           -

   Finally, Complainant argues that at the conclusion of May 27, after having been on duty for 30.5 hours with an off-duty break of only four hours, he was greatly fatigued, and that his returning on duty to load and drive at approximately 6:15 a.m. on the following morning would have violated 49 C.F.R. § 392.3. Significantly, B & Q was not requiring Complainant to operate a motor vehicle immediately after he had been on duty for 30.5 hours. He was placed off duty for 8.5 hours before he was expected to return. If, after being off duty during this interval, Complainant was too ill or fatigued to drive, he then would have been in a position to refuse work on this basis. His work refusal on the evening of May 27 was anticipatory. The record is not persuasive that Complainant knew at that time that his ability or alertness would be so impaired eight and one-half hours later as to make it unsafe for him to drive.¹² Moreover, the record does not establish Complainant's condition at 6:15 a.m. on May 28, and I, consequently, am unable to assess whether a violation would have occurred. complainant has not shown that he refused work

¹Section 405(b) of the STAA provides in relevant part:

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. . . .

49 U.S.C. app. § 2305(b).

²In his February 10, 1989, Request for Reconsideration of the ALJ's R.D. and O., Complainant included Exhibits A through G. By letter of February 28, 1989, Respondent objected to the inclusion of certain of these materials in the record. To the extent that Complainant's attached exhibits differ from those admitted into evidence or otherwise are not part of the record before the ALJ, I have not considered them, and they are rejected. Additionally I have not considered any evidentiary materials submitted by the Complainant to the ALJ after the record in the case was closed. See 29 C.F.R. § 1978.109(c)(1) (1987).

³The findings of the ALJ with respect to questions of fact are conclusive if they are supported by substantial evidence on the record considered as a whole. 29 C.F.R. § 1978.109(c)(3) (1987). The seminal facts in this case concern the hours worked by Complainant. I adopt the ALJ's findings in this regard with the exception of his clearly mistaken finding, R.D. and O. at 6, that Complainant was off duty for eight consecutive hours on May 27, see n. 6, infra. I also disagree with the ALJ's assessment that certain of Complainant's hours are not "well documented" in the record. R.D. and O. at 5. See T. 18-23; Exh. R-2. I make no ruling as to the sufficiency of the ALJ's finding regarding coercion to falsify drivers' daily logs, see R.D. and O. at 4, 14, since this finding is not relevant to a determination whether Complainant engaged in a protected refusal under the STAA.

⁴On-duty time includes, e.g., time spent waiting to be dispatched, inspection time, driving time, time spent loading and unloading. 49 C.F.R. § 395.2(a). Driving time includes "all time spent at the driving controls of a motor vehicle in operation." 49 C.F.R. § 395.2(b). In addition to recording time spent driving and time on duty but not driving, drivers also keep a log of time spent in the sleeper berth, 49 C.F.R. § 395.2(g), and off-duty time. See Exh. C-5. Complainant did not have a sleeper berth in his vehicle. T. 22.

⁵The particular breakdown of Complainant's hours on May 26 and 27, which is germane for purposes of determining compliance under 49 C.F.R. § 395.3(a), is established by Complainant's testimony, T. 20-25, Hearing Exhibit R-2, the Tach-O-Graph chart of Complainant's May 27 trip from B & Q's terminal in Phoenix, New York, to Brattleboro, Vermont, and return, and testimony of other drivers who recalled the time that Complainant went off duty at the completion of his trip. Complainant concedes that to the extent that his recollection regarding precise times conflicts with the Tach-O-Graph, the Tach-O-Graph is correct. T. 23.

⁶A safety investigator for the Department of Transportation, Office of Motor Carrier Safety, testified that if Complainant had complied with DOT regulations, he would not have returned to B & Q's Phoenix terminal until 4:30 p.m. on May 28. T. 182. See Exh. C-5.

The ALJ mistakenly found that Complainant was off duty between 9:30 a.m. and 5:30 p.m. on May 27. R.D. and O. at 6. Complainant falsified his driver's daily log to show the required eight-hour rest period, T. 20-25, so that he would appear legal and at the same time be able to return the truck to Phoenix as directed by B & Q's dispatcher. T. 23. The Tach-O-Graph, Exh. R-2, does not show an eight-hour break.

⁷On May 26 and 27, Complainant drove a total of 12.25 hours without taking eight hours off duty, and he remained on duty a total of 30.5 hours, including his driving time. See 49 C.F.R. § 395.2(a)(3). The maximum permissible driving and on-duty hours after which a driver may not drive are 10 and 15, respectively.

⁸Contrary to Complainant's apparent understanding, drivers do not accumulate bypassed off-duty hours. That Complainant had declined to take two required off-duty periods of eight hours each did not entitle him to 16 hours off duty when he returned to Phoenix. See T. 190; Exh. C-5. The purpose of the 10- and 15 hour maximums under 49 C.F.R. § 395.3(a) is to ensure that a driver's ability is not impaired whenever he is operating a vehicle. After 6:00 a.m. on May 27 Complainant should not have driven until he had been off duty for eight hours, meaning that between 6:00 a.m. and 9:00 p.m. on May 27 he drove illegally for 9.25 hours.

⁹For purposes of analyzing this case under 49 C.F.R. 395.3(b), two eight-day periods are involved here, the period May 20-27 and the period May 21-28. The period of eight consecutive days begins at the time designated by the motor carrier for a 24-hour period. See 49 C.F.R. § 395.2(d) and (e). At B & Q the 24-hour period commences at 12:01 a.m. and ends the following midnight. Exh. ALJ-2. Complainant, however, mistakenly computes the 24-hour/eight-day period as running from 11:00 a.m. on May 20 to 11:00 a.m. on May 28. Complainant's Request for Reconsideration of ALJ's R.D. and O. (Camp. R.) at 2, 5. The pertinent period for determining whether Complainant could work after 12:01 a.m. on May 28 includes the seven preceding days--May 21-27. The focus for determining whether Complainant was in violation of 49 C.F.R. § 395.3(b) on May 27 includes consideration of hours worked on May 20-26, as well as those worked on May 27, day eight of that particular period.

¹⁰The ALJ was mistaken in his unexplained conclusion that after Complainant's off-duty status from May 23-25, any eight consecutive day period "would not possibly have begun until 11:00 a.m. on [May] 26th . . . ." R.D. and O. at 14. Day one of any such period precedes day eight by seven days regardless the precise hours worked in the interim.

¹¹Complainant asserts that he remained on duty 17.0 hours on May 27. Comp. R. at 2, 5. However, the period between 3:30 a.m. when he came back on duty and approximately 9:30 p.m. when he went off duty is an eighteen hour period.

¹²The ALJ cited record evidence suggesting that part of Complainant's motivation in refusing to report as scheduled on May 28 was that the remuneration for loading the relatively small load that he had been assigned to transport "was not worth his (D'Agostino's) time." R.D. and O. at 8 n.4. In particular, B & Q's dispatcher testified that Complainant informed him that he would not load the cargo, directing him to "have somebody else load it," but that he would "take it out." T. 206-211; Exh. R-8. According to the dispatcher, Complainant made no mention that he had exceeded the legal hours limits. T. 209, 211. Kevin Smith, a driver for B & Q, testified that Complainant commented to him that, because of the method of payment for loading and unloading time, "it wasn't worth his time to go over and load that small amount." T. 225, 238-239.