Before me for review is the Recommended Decision and Order (R.D.
and O.) of Administrative Law Judge (ALJ) George G. Pierce issued on March 2, 1989, in the
captioned case, which arises under the employee protection provision of the Surface
Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1982).1
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) (1982).
2The regulation states:
"[N]o motor carrier shall permit or require any driver used by it to be on duty, nor shall any
such driver be on duty, more than 60 hours in any 7 consecutive days....... " It also I
provides that "no motor carrier shall permit or require any driver used by it to drive nor
shall any such driver drive: (1) More than 10 hours following 8 consecutive hours off duty; or (2)
For any period after having been on duty 15 hours following 8 consecutive hours off duty."
3In particular, I adopt the ALJ's
findings that Complainant had 2.25 hours remaining in the 60-hour period when he was asked to
make the trip on August 9, that had Complainant begun the trip at 9:45 p.m. on August 9 and
driven for 2.25 hours, he would have picked up only an additional 5.50 hours on August 10, and
that with a total of 7.75 hours, Complainant could not have completed the round trip run within
the 60-hour limitation. R.D. and O. at 6. I also adopt the ALJ's findings that Respondent's trucks
were not equipped with sleeper berths, that had Complainant pulled over to the side of the road
and rested in the vehicle, he would have continued to log on-duty hours in violation of Federal
regulations, and that Respondent had not discussed laying over or sleeping accommodations with
Complainant, who reasonably may have understood that he would be going against company
policy to stop at a motel. R.D. and O. at 7.
4See the factual
summary at pp. 7-9, infra, of the exchanges on August 7 and 8, between Complainant
Kenneway and dispatcher Emery about Kenneway's making extra runs. Emery testified, and it is
undisputed, that Matlack was under pressure to move inventory from Old Town to Rumford, a
situation exacerbated by the fact that one of the drivers was on vacation. Hearing Transcript (T.)
188, 204, 216-218. See R.D. and O. at 7.
5Actual driving time one-way
between Old Town and Rumford ranged between 2.75 and 3.50 hours. Exh. J-2. "On a
good day," total round trip on-duty time involved in driving, loading, unloading, and
cleaning the trailers used to transport highly caustic materials was approximately 11.25 hours. T.
24-27, 167.
6When asked whether he normally
slept in his car upon returning from a trip, Complainant testified: "Only if I'm tired and I
don't think it is safe for me to drive." T. 112.
7As the ALJ found, the 7.75
additional hours that Complainant would have acquired at 12:01 a.m. on August 10 were
insufficient to permit him to complete the trip. R.D. and O. at 6-7. If Complainant had begun
the trip on August 9, expending the 2.25 hours available through midnight on that date, the
number of hours available for use on August 10 would have been reduced to 5.50 hours.
8In Crown Central
Petroleum, the balance was held not to have been upset and the employees were protected.
In contrast, in Boaz Spinning Co. v. NLRB, 395 F.2d 512 (5th Cir. 1968), where the
balance was held upset, all plant employees were present at a pre-election meeting where
intemperate remarks were made by an employee and where the employer legitimately had
determined that competing views could not be aired. Accordingly, Boaz represented
widely-publicized, direct defiance to management's authority as well as a refusal to follow
reasonable instructions. other avenues were established for the employee to disseminate his pro-Union arguments. AccordNLRB v. Truck Drivers, Oil Drivers, Etc., 630
F.2d 505, 508 (7th Cir. 1980); NLRB v. Prescott Industrial Products Co., 500 F.2d 6,
8-11 (8th Cir. 1974).
9Contrary to Respondent's
suggestion, T. 282, Kenneway's alleged outburst may not be considered in a vacuum, somehow
separated from the events leading up to it. SeeNLRB v. ThorPower
Tool Co., 351 F.2d 584, 586-587 (7th Cir. 1965). It issued in reaction to Emery's persistent
urging that Kenneway find a way to make the trip. T. 212. As the ALJ found, R.D. and O. at 7-8, Emery more likely lost his temper or both parties lost their tempers. Derogatory remarks
uttered in similar circumstances were held to furnish "the excuse rather than the reason for
[management's] retaliatory action." Thor Power Tool Co., 351 F.2d at 587
(remark may have "triggered" discharge but management's "extreme
displeasure" at protected conduct evident during escalating confrontation).
10The fact that Kenneway
consulted his hours log before telephoning Emery suggests that he may have anticipated
resistance, especially in light of Emery's previous pressuring to make back-to-back runs. Any
possible anticipation on Kenneway's part, however, does not mean that an intemperate outburst
during the telephone conversation was pre-meditated.