Before me for review is the Recommended Decision and Order (R.D.
and O.) issued March 28, 1991, by the Administrative Law Judge (ALJ) in this case, under the
employee protection provision of the Surface Transportation Assistance Act of 1982 (STAA), 49
U.S.C. app. § 2305 (1988). The ALJ found that Complainant was terminated by
Respondent for engaging in protected activity and awarded relief. On review, Respondent argues
that Complainant's refusal to take a dispatch as ordered was not activity protected under the
STAA. Because I agree with the ALJ that Respondent's dispatch order required the violation of
Department of Transportation (DOT) driving time regulations by Complainant's driving team,
and that Complainant's refusal of the order was accordingly protected, the recommendation to
award relief shall be accepted.
I.
The employee protection provision of the STAA prohibits an employer
from discharging an employee for refusing to operate a motor vehicle "when such
operation constitutes a violation of any Federal rules, regulations, standards or orders applicable
to commercial motor vehicle safety" [the "when" clause] or "because of
the employee's reasonable apprehension of serious injury to himself or the public due to the
unsafe condition of such equipment" [the "because" clause]. 49 U.S.C. app.
§ 2305(b).
The ALJ found that at the time Complainant was dispatched,
Respondent knew or should have known that Complainant and his driving partner could not have
1The ALJ found Complainant had 1
1/2 driving hours and his partner 10 driving hours available at the beginning of a trip that was
stipulated to require 13 1/2 hours and with the earliest possible departure time established as
12:45 p.m. on Sunday. R.D. and O. at 21-23 and n.7. Had they driven those 11 1/2 hours and the
partner resumed driving at 6:45 a.m. Monday morning following a mandatory 8-hour rest break,
at best they would have arrived in Cincinnati 45 minutes late. Butsee note 4
infra.
2The ALJ also rejected
Respondent's contention below that Complainant failed to mitigate his damages when he
assumed the family yard cleaning business after failing to find work in the trucking industry.
Respondent has not contested this issue before me.
3The holding in Brothers v.
Liquid Transporters. Inc., Case No. 89-STA-0001, Sec. Order, Feb. 27, 1990, that a driver
without available driving hours may be ordered to begin a run by resting in the sleeper
berth while his partner drives, is distinguishable. The Brothers complainant was
"instructed . . . to begin a rest break and not to operate a commercial motor vehicle."
Slip op. at 5. Nor did the facts in Brothers include a mandatory delivery time requiring
the driving team to violate DOT driving time regulations.
4In calculating driving time to
Cincinnati, R.D. and O. at 2223, the ALJ credited Complainant with one-half hour of driving
time before midnight and onehour after midnight. Although Joint Exhibit 3
might permit this interpretation, Complainant's own testimony, T. 786, and his monthly driver
summary, Complainant's Exhibit 32, shows that Complainant had one-half hour available on
Sunday, November 6, and picked up another one-half hour at midnight. Thus, he would
have a total of one hour on Monday only if he did not use the one-half hour available on Sunday.
Complainant's actual available driving time total was only one hour, making the earliest arrival
time in Cincinnati 9:15 a.m., rather than 8:45 a.m., as found by the ALJ.