DATE: March 9, 1990
CASE NO. 88-STA-31

IN THE MATTER OF
ARCHIE LONG, ET AL.,
   COMPLAINANTS,

v.

ROADWAY EXPRESS, INC.,
   RESPONDENT.

BEFORE:    THE SECRETARY OF LABOR

   On September 15, 1989, I issued the Secretary's Decision and Remand order in the above-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). In that decision, I found that Respondent had violated the STAA by depriving Complainants Long, Clark, Schlapp and Palmer of delay time pay, and I remanded the case to Administrative Law Judge (ALJ) Kenneth A. Jennings for the calculation of the amount due to each complainant as damages.

   Before me now for review is the Recommended Decision and order on Remand Awarding Damages (R.D. and O. on Remand) issued by the ALJ on January 26, 1990. That decision finds that each Complainant is entitled to eight (8) hours of delay time for the stopover in Eastland, Texas, and that each is entitled to be paid, at an hourly rate, for eight (8) hours of work for the trip between Irving and Eastland and for eight (8) hours of work for the trip between Eastland to Pecos. Furthermore, the decision finds that Complainants Clark and Palmer are each entitled to an additional one and a half (1 1/2) hours' pay for their delay in Tye, Texas.

   The Assistant Secretary of Labor for occupational Safety and Health urges that I affirm the ALJ's decision. See Letter of February 12, 1990, from Lerner to Culbreth. Respondent opposes the ALJ's decision and seeks dismissal of the Complainants' complaint. Respondent argues that, since my decision and order of remand was not issued within one hundred and twenty days (120) after the conclusion of the hearing, as required by section 2305(c)(2)(A) of the STAA, that decision is untimely, and hence is not appropriate authority for the ALJ's R.D. and O. on Remand. Respondent contends also that it has been prejudiced by the

delay. Additionally, Respondent argues that Complainants are not entitled to any damages because they chose to discontinue their dispatch; and that, if damages are awarded, they should be limited to a maximum of eight (8) hours of "delay time" pay. See Respondent Roadway Express Inc.'s Brief in opposition to the Recommended Decision and Order on Remand Awarding Damages (Roadway's brief), filed February 21, 1990.

   I reject Respondent's argument that the fact that my decision and remand order was issued one hundred and twenty two (122)days after the close of the hearing extirpates the authority for the ALJ's R.D. and O. on Remand and, consequently, requires dismissal of the complaint in this case. The regulations implementing Section 2305 provide that the time constraints of that section are "directory in nature," and "[f]ailure to meet these requirements does not invalidate any action by the . . . Secretary." 29 C.F.R. § 1978.114 (1988).

   In analogous situations, Federal courts have upheld the Secretary of Labor's construction of time limits as "directory" rather than "mandatory", and have ruled that the failure to meet these time limits does not vitiate action under the statute. In Marshall v. N.L. Industries, Inc., 618 F.2d 1220 (7th Cir. 1980), the court of appeals had before it a provision of the Occupational Safety and Health Act (OSHA), requiring the Secretary, within 90 days of receipt of the complaint, to notify the complainant as to the Secretary's determination of whether discrimination had occurred, which provision the implementing regulation had construed as "directory." The court upheld this construction of the time limit provision on the ground that the Secretary's interpretations "are entitled to great weight and are controlling if reasonable." 618 F.2d at 1224. Finding that interpreting the time limit provision as "directory" "clearly serves the remedial purposes of the Act," Id., and that the employer had failed to establish that it had been prejudiced by the Secretary's failure to meet the statutory time limit, the court concluded that the statutory limit did not bar the action. 618 F.2d at 1225.

   In Brock v. Pierce County, 476 U.S. 253 (1986), the Court ruled that the Secretary did not lose the power to recover funds misused by a grant recipient after the expiration of the 12.0 day time limit provided in the Comprehensive Employment and Training Act (CETA) for issuance of the Secretary's final determination. The Court expressed its reluctance to conclude otherwise "when important public rights are at stake." 476 U.S. at 260. The basis of the Court's ruling, therefore, was that, even though the statute used "mandatory," 476 U.S. at 259, terms, "[t]here is simply no indication in the statute or its legislative history that Congress intended to remove the Secretary's enforcement powers if [s]he fails to issue a final determination on a complaint . . . within 120 days." 476 U.S. at 266.

   As does the OSHA provision in Marshall and as does the CETA provision in Brock, Section 2305

of the STAA uses the word "shall." The same reasons as applied in those cases necessitate the interpretation that the time limits of Section 2305 are directory rather than mandatory. The purpose of the STAA is to promote public safety on the highways. As noted in the section by section analysis of the STAA prepared by the Senate Commerce Committee which reported out the legislation, section 2305

was considered necessary to encourage "whistleblowing" by employees. Enforcement of commercial motor vehicle safety laws and regulations is possible only through an effort on the part of employers, employees, State safety agencies, and the Department of Transportation. Therefore, the Committee considered it necessary to specifically provide protection for those employees who are discharged or discriminated against for exercising their rights and responsibilities under this title.

128 Cong. Rec. S14028 (daily ed. December 7, 1982). A ruling that the Section 2305 time limits are mandatory would frustrate the purpose of Section 2305 because such a ruling would lead to automatic dismissal of otherwise meritorious complaints with the result of discouraging employees from filing safety complaints and eliminating the incentive for employers to observe all safety rules and regulations. In the case before me, where I have already found that Respondents violated the Act by refusing to pay delay time pay because Complainants discontinued their trips due to hazardous road conditions, dismissal of the complaint on the technical ground that my decision and remand order was issued two (2) days over the statutory time limit might very well result in Complainants and other drivers continuing to drive under hazardous road conditions in order to avoid the loss of such pay.

   Respondent also avers that it was prejudiced by the two (2) day delay in the issuance of my decision and remand order because it did not receive expedited processing of Complainants' complaint. Roadway's Brief at 3. Respondent, however, has failed to make any showing of how it was prejudiced.

   On the basis of the foregoing, I deny Respondent's request that an order of dismissal be entered and that the ALJ's R.D. and O. on Remand be denied.¹

   After careful consideration of the record evidence and the arguments of the party made before the ALJ and before me, I find that the ALJ's recommendations as to damages are supported by substantial evidence and, thus, are conclusive. 29 C.F.R. 108.109(c)(3). I, therefore, adopt the recommended findings set forth in the ALJ's R.D. and O. on Remand, a copy of which is appended hereto.

   Accordingly, it is ORDERED:

   1.   that Respondent pay to Archie L. Long and Roger D. Schlapp each the sum of one hundred ninety-six dollars and sixty two cents ($196.62) plus interest in accordance with 28 U.S.C. 1961 (1982)² ; and

   2.   that Respondent pay to Gail S. Clark and Thomas E. Palmer each the sum of two hundred eighteen dollars and sixty cents ($218.60) plus interest in accordance with 28 U.S.C. § 1961.

¹In my review of this case, I have also considered and rejected Respondent's argument (not specifically addressed by the ALJ) that the request for "minis" (two payments of 8 hours each) and the request for delay time pay for Tye, Texas, are untimely because Complainants failed to submit trip pay cards reflecting these requests. Respondent Roadway Express, Inc.'s Brief Relating to Damage Issue at 6-7 and 9 n.3, filed before the ALJ. Where a violation is found, the STAA requires that back pay and compensatory damages be awarded. 49 U.S.C. app. § 2305(c)(2)(B). The record establishes the appropriateness of the awards to Complainants.

²See Hufstetler v. Roadway Express, Inc., Case No. 85-STA-8, Sec. order, August 21, 1986, slip op. at 58-59, aff'd, Roadway Exp., Inc. v. Brock, 830 F.2d 179 (11th Cir. 1987).