DATE: November 16, 1990
CASE NO. 89-STA-10

IN THE MATTER OF

ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH,
   PROSECUTING PARTY,

AND GARY OSBORN AND MEREL ROWE,
   COMPLAINANTS,

v.

CAVALIER HOMES OF ALABAMA, INC.,
AND MORGAN DRIVE AWAY, INC.,
   RESPONDENTS.

BEFORE:   THE SECRETARY OF LABOR

   Before me for review is the [Recommended] Decision and Order (R.D. and O.) issued on July 20, 1990, by Administrative Law Judge (ALJ) Robert J. Shea in this case arising under Section 405 of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1988). The ALJ has recommended that the complaints should be dismissed. I disagree with the ALJ's disposition, and I remand the case to him for further findings and conclusions consistent with this decision.

A. The Coverage Issue

   Respondents raise a preliminary challenge that they should not be subject to this proceeding because neither "employed" the Complainants. R.D. and O. at 5-6. The ALJ declined to address the coverage issue, and on remand I direct that he do so in accordance with the following considerations.

   STAA Section 405 prohibits any "person" from discriminating against any "employee" for engaging in protected activity. As "corporations," both Respondents would appear to come within the STAA definition of the term "person." 49 U.S.C. app. § 2301(4). The complaint alleges

unlawful discrimination as the result of Complainant Osborn's assertedly protected work refusal. Osborn, as "a driver of a commercial motor vehicle," would appear to come within the STAA definition of the term "employee," which also expressly includes "an independent contractor while in the course of personally operating a commercial motor vehicle." Complainant Rowe, Osborn's common law wife, Hearing Transcript (T.) 81, and the owner of the truck tractor, T. 35, may also be an "employee" -- i.e., an "individual other than an employer; who is employed by a commercial motor carrier and who in the course of [her] employment directly affects commercial motor vehicle safety . . ." 49 U.S.C. app. § 2301.

   Cavalier and Morgan may come within the STAA definition of the term "employer," which means "any person engaged in a business affecting commerce who owns or leases a commercial motor vehicle in connection with that business, or assigns employees to operate it in commerce . . . ." 49 U.S.C. app. § 2301(3).

B. The Credibility Determination

   In reviewing a recommended decision, I must accept an ALJ's factual findings as conclusive if they are "supported by substantial evidence on the record considered as a whole . . .." 29 C.F.R. § 1978.109(c)(3) (1989). I am unable to rule on the ALJ's credibility determinations' as to Osborn's testimony without specific findings and conclusions in accordance with the following, and therefore remand the case to the ALJ for such findings and conclusions.

   1. Reliance on Evidence of Osborn's Criminal Convictions

   STAA hearings are to be conducted in accordance with 29 C.F.R. Part 18. 29 C.F.R. § 1978.106(a) (1989). The rules in effect at the time of the hearing permitted application of the Federal Rules of Evidence. 29 C.F.R. § 18.44(a) (1989) (unless otherwise provided and "where appropriate," federal evidentiary rules "may be applied to all proceedings held pursuant to these rules"). The ALJ indicated that he elected to apply Rule 609, Fed. R. Evid., although he appears to have made certain other evidentiary rulings. On remand, I direct the ALJ to explain the extent to which he applied the federal rules in this proceeding and his reasons for doing so.

   Under Rule 609, evidence of conviction of certain crimes may bear on a witness's credibility. Admission of such evidence is subject to a ten-year time limitation without advance notice. Fed. R. Evid. 609 Notes of Committee on the Judiciary, House Report No. 93-650.

   The record reveals certain convictions during the relevant ten-year period -- for burglary of a conveyance, grand theft second degree, criminal mischief, and second degree arson. Whether these convictions involve the requisite degree of dishonesty or false statement", and thus are probative of credibility because they "'bear directly upon the [witness's] propensity to testify truthfully'", United States v. McClintock, 748 F.2d 1278, 1289 (9th Cir. 1984) (emphasis in original), is for the ALJ to decide and to render appropriate findings and conclusions.

   2. The Conflicting Evidence

   Only two evidentiary conflicts are relevant, bearing on the issue whether fatigue prompted Osborn's refusal to make the Arkansas trip on October 12, 1988 --

i.e., whether, in returning to Alabama late on October 11, Osborn drove his truck tractor,¹ and whether Osborn communicated his fatigue as the reason for his refusal.

   The record suggests that, in making the St. Charles, Missouri, delivery on October 11 and 12, Osborn may have accumulated as many as 21.50 on duty hours, 15.25 of which he spent operating his truck tractor. These facts would appear to support his claim that fatigue motivated his October 12 refusal to begin the trip to Jacksonville, Arkansas.

   With regard to Osborn's communications about his refusal, the testimony differs only (1) as to dispatcher Barnett's insistence that Osborn be placed "on the book" on the afternoon of October 11 as available for assignment on October 12; and (2) as to Osborn's stated reason for refusing the trip. As noted by the ALJ, Osborn's testimony does not appear to be internally inconsistent, and much of it appears to be corroborated. By contrast, Barnett's testimony seems, at least in part, to be somewhat inconsistent. On remand, I direct the ALJ to resolve these factual issues and to explain fully the rationale for his determinations in appropriate findings and conclusions.

C. The Legal Standard

   The burdens of proof and production adopted for use in STAA proceedings are set forth in McGavock v. Elbar, Inc., Case No. 86-STA-5, Sec. Final Decision and Order issued July 9, 1986, slip op. at 10-11. Ordinarily, the reasons for a work refusal should be communicated to an employer, or at least an attempt at communication should be made. Perez v. Guthmiller Trucking Co., Inc., Case No. 87-STA-13, Sec. Final Dec. and Order issued December 7, 1988, slip op. at 25 n.14.²

   Osborn claims that he refused to begin the Arkansas assignment when it would have entailed violation of 49 C.F.R. § 392.3 and that he communicated fatigue as his basis for concern. On remand, I direct the ALJ to determine whether Complainants have shown that Osborn engaged in a protected work refusal, that Respondents were aware of the refusal when they took action against Complainants, and that Respondents did so because of the refusal. If Complainants satisfy this showing, the ALJ must consider Cavalier's claim that it barred Osborn because of a history of infractions and abuse of the driver booking system.

¹Osborn testified that he drove the return trip. His escort driver, Merel Rowe, was unqualified to drive the truck tractor, and it is unlikely that she did so. No tow truck operator or alternate driver is named in Osborn's records. Osborn's hours log is inconclusive. Regrettably, records falsification of this sort was prevalent among Respondents' drivers and apparently condoned by Respondents.

²Under the "because" clause of Section 405(b), an employee "must have sought from his employer, and have been unable to obtain, correction of the unsafe condition", a requirement subsuming attempted communication. Although protection under the "when" clause does not similarly depend on this requisite, Duff Truck Line. Inc. v. Brock, No. 87-3324 (6th Cir. 1988) (LEXIS, Genfed library, Court of Appeals file), a qualified communication requirement "is certainly 'rational and consistent with the statute.'" Simpson v. Federal Mine Safety & Health Rev. Com'n, 842 F.2d 453, 459 (D.C. Cir. 1988) (quoting NLRB v. United Food & Commercial Workers Union, Local 23, 484 U.S. 112, 123 (1987)).