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Bettner v. Administrative Review Board

August 21, 2008


Petition for Review of an Order of the Department of Labor. No. 06-013.

The opinion of the court was delivered by: Ripple, Circuit Judge


Before POSNER, RIPPLE and MANION, Circuit Judges.

On December 6, 2003, William Bettner filed a complaint with the Occupational Safety and Health Administration ("OSHA"), an agency within the Department of Labor, alleging that his employer, Crete Carrier Corp. ("Crete"), had discriminated against him in violation of the Surface Transportation Assistance Act, 49 U.S.C. § 31105 ("STAA"). OSHA entered a preliminary finding against Mr. Bettner, and he requested de novo review before an Administrative Law Judge ("ALJ") under 49 U.S.C. § 31105(b)(2)(C).

Before the ALJ, Crete filed a motion for summary decision under 29 C.F.R. § 18.40. On October 28, 2005, the ALJ issued a recommendation to grant Crete's motion for summary decision. On May 24, 2007, the Department of Labor's Administrative Review Board (the "Board") issued a final decision granting Crete's motion. Mr. Bettner filed a timely petition for review. For the reasons set forth in this opinion, we deny Mr. Bettner's petition.



The Department of Transportation ("DOT") regulates, inter alia, the number of hours a commercial truck driver may drive in a given period. In 49 C.F.R. § 395.3, the DOT establishes the maximum number of hours that a driver may drive during any given day, as well as the maximum number of hours that a driver may drive during any given week; it also mandates the minimum number of consecutive hours off-duty that must be ob-served between shifts of driving.*fn1 At the time relevant to this appeal, section 395.3 prohibited a motor carrier from requiring any driver to drive "[m]ore than 10 hours following 8 consecutive hours off duty," or "for any period after . . . [h]aving been on duty 60 hours in any 7 consecutive days . . . or . . . 70 hours in any period of 8 consecutive days." 49 C.F.R. § 395.3 (2002). In addition to these driving limitations, 49 C.F.R. § 395.8 establishes minimum reporting requirements. During each 24-hour period, the driver must record in a driving log his status, the date, the 24-hour starting time, the carrier, the truck number, the number of miles driven that day, and the total hours spent driving and on duty. Id. § 395.8(d), (f).

Despite the DOT's numerous regulations, however, in the early 1980s, the United States experienced an increasing number of deaths, injuries and property damage due to commercial motor vehicle accidents. See 128 Cong. Rec. 32,509, 32,510 (1982) (remarks of Sen. Danforth and sum-mary of proposed statute) (quoted in Brock v. Roadway Express, Inc., 481 U.S. 252, 258 (1987)). Random inspections by law enforcement officials in various parts of the country uncovered significant and widespread violations of safety regulations. Id. (quoted in Brock, 481 U.S. at 262).

Congress hypothesized that, although employees in the transportation industry often are in the best position to detect safety violations, fears or threats of discharge for cooperating with enforcement agencies were preventing these employees from reporting these violations. See Brock, 481 U.S. at 258.

Accordingly, in 1982, Congress enacted the STAA, an Act intended to provide employees with express protection against retaliation for reporting noncompliance with safety regulations. Id. The STAA makes it unlawful for an employer to "discharge an employee, or discipline or discriminate against an employee regarding pay, terms, or privileges of employment," for refusing to operate a commercial vehicle because "the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety, health, or security." 49 U.S.C. § 31105(a)(1)(B)(i).

An employee who believes that he has been retaliated against for engaging in an activity protected under the STAA may file a complaint with the Department of Labor. Id. § 31105(b). OSHA then investigates the claim and orders relief if it finds reasonable cause to believe that the STAA has been violated. Id. § 31105(b)(2)(A). Either party, however, may object to OSHA's findings and request a de novo proceeding before an ALJ. Id. § 31105(b)(2)(B). The ALJ may hold a hearing; alternatively, it may issue a summary decision for either party "if the pleadings, affidavits, material obtained by discovery or otherwise, or matters officially noticed show that there is no genuine issue as to any material fact and that a party is entitled to summary decision." 29 C.F.R. § 18.40(d).

Once the investigating body has recommended a decision, the parties may submit briefs to the Board. 29 C.F.R. § 1978.109(c)(1). The Board then makes a final determination and, if warranted, orders relief. A party aggrieved by the final decision of the Board may petition for review in the appropriate court of appeals. 49 U.S.C. § 31105(c).


At all times relevant to this case, Crete, an over-the-road trucking company, operated at least two distinct fleets of trucks: (1) a fleet dedicated solely to shipments of goods for a single customer, General Mills/Pillsbury (the "Dedicated Fleet"), and (2) a non-designated fleet (the "National Fleet"). For the Dedicated Fleet, Crete guaranteed that a certain number of tractors, trailers and drivers would be used exclusively to haul General Mills' goods; it also guaranteed that it would pick up and deliver freight at specific times designated by General Mills. General Mills tightly enforced the timing requirements for its pickups and deliveries. Any pickup or delivery that occurred outside the designated time window was considered a "Service Failure," which resulted in penalties to Crete. In return for these timing guarantees, General Mills paid Crete a premium rate and allocated to Crete a certain percentage of its daily freight.

In contrast with the Dedicated Fleet, equipment and drivers in Crete's National Fleet were not assigned to particular customers. Because premium payment was not contingent upon compliance with scheduled pickup and delivery times, proper scheduling was not as critical for National Fleet drivers. Therefore, National Fleet drivers were dispatched on a more ad-hoc basis than those assigned to the Dedicated Fleet.

In late August or early September 2003, Crete hired Mr. Bettner as a truck driver and assigned him to the Dedicated Fleet. In that position, he was tasked with performing pickups and deliveries for General Mills, each to be completed within certain windows of time. Crete's dispatchers compiled the pickup and delivery time windows into planned dispatches for its drivers; from these dispatches, however, the individual driver was responsible for planning his specific route, driving time, breaks, maintenance checks and all of the other details of his trip in order to comply with both General Mills' schedule and the DOT hours of service regulations.

On October 3, 2003, a Crete dispatcher provided Mr. Bettner with a dispatch consisting of three separate pickups and deliveries. Mr. Bettner was to pick up a load at Geneva, Illinois that evening and deliver it in Atlanta, Georgia on the morning of October 6. Later on October 6, he was to pick up another load in Lavergne, Tennessee; this load was to be delivered to a facility in Geneva, Illinois on October 7, between noon and 11 p.m. Finally, he was to pick up a third load in Kankakee, Illinois at 3:00 p.m. on October 7, and deliver it in Joplin, Missouri by 11:00 p.m. the following day. The dispatch read as follows:

1. Pickup Location/Window

Geneva, Illinois - 10/03/03 - 5:00p.m.-11:59pm Delivery Location/Window Atlanta, Georgia - 10/06/03 - 12:01a.m.-12:00pm

2. Pickup Location/Window

Lavergne, Tennessee - 10/06/03 - 8:30am-5:00pm Delivery Location/Window Geneva, Illinois - ...

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