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

   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.

   The employee protection provision of the STAA, as relevant to this case, 49 U.S.C. app. § 2305(b), prohibits an employer from discharging an employee for refusing to operate a motor vehicle when such operation constitutes a violation of any federal rules, standards or orders applicable to commercial motor vehicle safety.¹ Complainant alleged below that at the time of his discharge when he was ordered to drive an additional 28 miles from Salt Lake City to

Clearfield, Utah, he could not drive without violating both the 10-hour rule, 49 C.F.R. § 395.3(a)(1), and the 15-hour rule, 49 C.F.R. § 395.3(a)(2), as evidenced by his daily logs of February 5 and 6, 1990.² Government's Exhibit (G.) 1. Respondent conceded that Complainant was out of hours if the logs introduced in evidence are true and accurate. Respondent alleged, however, that the log for February 6, 1990, was falsified and that Respondent's safety director was shown a different log on February 6, 1990, indicating that Complainant had ample driving time remaining under the regulations.

   The ALJ found that Complainant's testimony established that on February 5, 1990, Complainant was to drive from Fontana, California, to Clearfield, Utah. At 11:45 p.m., while enroute, his truck lost air pressure and broke down along the road in Cedar City, Utah. Complainant hitched a ride to the nearest truck stop, called Respondent's maintenance department in Salt Lake City and was told to get a mechanic. He immediately did so, and accompanied the mechanic to the roadside where the mechanic repaired the truck, with Complainant assisting. At 5:00 a.m. Complainant purportedly drove the repaired truck to the truck stop and called Respondent.³ At 7:45 a.m. Complainant drove from Cedar City to Salt Lake City, arriving at 12:45 p.m., and told the dispatcher that he was out of hours, meaning that he could no longer drive under the regulations at 49 C.F.R. Part 395. The dispatcher nevertheless ordered Complainant to drive the load to its final destination in Clearfield, Utah, some 28 miles away. Complainant notified his fleet manager in California of the situation. Pursuant to instructions from the fleet manager, Complainant then took his log to Respondent's safety director who told Complainant that he had time left to drive and did not look tired. Complainant again contacted and complained to his fleet manager-who told him that he did not have to drive anymore, which Complainant interpreted as a termination of his employment. Complainant's personal belongings were then taken out of the truck and he was issued a check for a bus ticket back to Fontana.

   The ALJ concluded that the only time that could have been falsely shown on the log was the time between 11:45 p.m. on the 5th of February and 5:OO a.m. on the 6th, during which Complainant alleged he was on duty assisting in the repair of the truck.⁴ The ALJ credited Complainant's testimony that he was on duty during this period as indicated in the log. G.1. I agree with the ALJ's ultimate determination that Complainant was out of hours when ordered to drive to Clearfield, Utah, by Respondent's dispatcher in Salt Lake City. I so hold, however, for reasons somewhat different from those advanced by the ALJ.

   The evidence reveals that Complainant could not have had an 8-hour off-duty or sleeper berth break prior to 8:00 a.m. or 8:15 a.m. the morning of February 6, 1990, as alleged by Respondent. The road service report, Respondent's Exhibit (R.) 1,definitively showed that the mechanic was called at 12:45 a.m.⁵ on the 6th and that the truck was released at 2:20 a.m. R.1. During the approximately 2 1/2 hour period from 11:45 p.m. on the 5th to 2:20 a.m. on the 6th, I find, as did the ALJ, that it was entirely credible that Complainant was on duty, either staying with the truck, going for help or waiting for responses, and not off duty or attempting to sleep. Given only this 2 1/2 hour on-duty period, it would have been impossible for Complainant to obtain 8 consecutive hours off duty during the 8 1/2 hour period between 11:45 p.m. on the 5th and 8:15 a.m. on the 6th.⁶ Since 8 consecutive hours off duty

   This being the case, by 2:30 a.m. on February 6th Complainant had accumulated 13 1/2 hours of on-duty/driving time, leaving only 1 1/2 hours of on-duty/driving time remaining before he would be prevented from driving any further under the 15-hour rule. Given the 245 miles from Cedar City to Salt Lake City, which Complainant actually drove on the morning of February 6th, he had exceeded the regulatory limit and was out of hours upon his mid-day arrival in Salt Lake City when ordered by Respondent to drive to Clearfield. Similarly, having accumulated 9 1/2 hours of actual driving time on the 5th, G.1, and not having obtained 8 consecutive hours off duty, Complainant triggered the restrictions of the 10-hor rule upon actually driving for 3/4 hours on February 6th. See T. 87. Because of the 4 1/2-hour drive from Cedar City to Salt Lake City, Complainant had exceeded his hours under the 10-hour rule when he arrived in Salt Lake City. For these reasons, I agree with the ALJ that Respondent ordered Complainant to drive on February 6th in violation of the regulations. 49 C.F.R. § 395.3(a).⁷

   Wherefore, I append to this order the [Recommended] Decision and Order of August 9, 1990, which I hereby adopt as supplemented and modified in this order. Relief is GRANTED as indicated in the [Recommended] Decision and Order of August 9, 1990.

SO ORDERED.

         Elizabeth Dole
         Secretary of Labor

Washington, D.C.

¹

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 . . . .

49 U.S.C. app. § 2305(b).

²§ 395.3 Maximum driving and on-duty time.

   (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. See also 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.