U.S. DEPARTMENT OF LABOR
SECRETARY OF LABOR
WASHINGTON, D.C.
DATE: November 20, 1990
CASE NO. 90-STA-28
IN THE MATTER OF
ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH,
PROSECUTING PARTY,
AND
SAMUEL E. WILLIAMS,
COMPLAINANT,
v.
PST VANS, INCORPORATED,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
Before me for review is the [Recommended] Decision and Order (D.
and O.) of Administrative Law Judge (ALJ) Thomas Schneider issued on August 9, 1990, in the
captioned case which arises under the employee protection provision of the Surface
Transportation Assistance Act of 1982 (the STAA). 49 U.S.C. app. § 2305 (1982). The
ALJ found that Complainant was discriminatorily discharged by Respondent and ordered
reinstatement, back pay and other relief. On review, I conclude that the ALJ correctly determined
that Complainant's discharge violated the STAA and I accordingly adopt the ALJ's D. and O.
with the modifications indicated below.
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 . . . .
(a) Except as provided in paragraphs (c) and (e) of this section and in
§ 395.10, 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.
49 C.F.R. § 395.3 (1988).
3Although the ALJ
states, D. and O. at 2, that Complainant called Respondent at 5:00 a.m. as he was expected to do
every morning, the record shows that the phone call made between 5:15 and 5:30 a.m. was to
Respondent for authorization to write a check to pay the mechanic. Hearing Transcript (T.) 30-31. Thereafter, Complainant slept in his sleeper berth from 5:30 a.m. to 7:30 a.m., and made his
required morning call to Respondent between 7:30 and 7:45 a.m. T. 32-33.
4Respondent alleged
that the log Complainant originally presented to the safety director on February 6th showed an 8-hour off-duty break immediately prior to 8:00 a.m. or 8:15 a.m. the morning of February 6, 1990.
T. 121.
5The ALJ indicated
this time as 1:45 a.m., D. and O. at 3, which is local Utah (Mountain) time. Since Complainant
used Pacific Time throughout his logs as required by DOT regulations, T. 14, and since the times
must be compared, the local Utah times must be converted to Pacific Times throughout.
See T. 132-134.
6Moreover, it is
entirely credible that an additional 1/2 hour of on-duty time was expended by Complainant in
driving the repaired truck from the roadside to the truck stop and calling Respondent for a check
authorization to pay the mechanic, as indicated on the log from 5:00 a.m. to 5:30 a.m. on
February 6th. G.1. Seealso T. 31-32.
7The remaining
issues concerning evidence that Complainant wanted a better paying load to drive, Respondent's
contention that Complainant was never fired, and the remedy ordered were appropriately
disposed of by the ALJ, D. and O. at 3-4, and I adopt his determinations in these respects.