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June 14, 1983

DAVID GAIBIS, CHARLES LOWRY, and all others similarly situated, Plaintiffs,

The opinion of the court was delivered by: SIMMONS

 Plaintiffs David Gaibis and Charles Lowry and all others similarly situated are or were employed as over-the-road drivers by Werner Continental, Inc. at its West Middlesex, Pennsylvania terminal. Defendant Werner Continental, Inc., is an ICC certified freight carrier engaged in interstate commerce. Werner was acquired on January 1, 1979, by Hall's Motor Transit Company, another certified interstate carrier. Plaintiffs commenced this action pursuant to the provisions of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, et seq., and the Fair Labor Standards Act, 29 U.S.C. § 216, seeking to: 1) set aside and vacate three grievance awards, 2) enjoin the defendant from requiring its drivers to comply with the current dispatch and logging procedure under the threat of discipline, and 3) have plaintiffs compensated for all lost wages and damages suffered due to defendant's illegal dispatch procedures.

 On April 27, 1981, this Court entered an order requesting the assistance and input of the Bureau of Motor Carrier Safety, Dept. of Transportation (BMCS) in resolving the issues raised in this litigation. The Court determined that the BMCS had primary jurisdiction with respect to the issues of transportation practice and policy involved in the pending civil action and certified the following question for investigation and resolution in accordance with its rules of practice and procedure:

Whether the dispatch and logging procedure followed by Hall's Motor Transit Company for its over-the-road drivers at its West Middlesex, Pennsylvania terminal violates the Federal Motor Carrier Safety Regulations, 49 C.F.R., § 390.1, et seq.

 The matter is now before this Court after having been presented to an administrative law judge, who after considering the arguments of counsel and the evidence presented, entered findings of fact and conclusions of law. A reviewing official, namely, the Associate Administrator for Safety of the Federal Highway Administration in the Department of Transportation, then rendered a final decision. The court previously entered an order directing that the pending motion of Defendant Werner Continental, Inc. to Dismiss Plaintiffs' Second Amended Complaint, be treated as a Motion for Summary Judgment pursuant to Rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure. After argument by counsel before this Court, and the Court's review of the briefs submitted, the transcripts of the administrative proceedings, the Recommended Decision of the Administrative Law Judge and the Final Decision of the Associate Administrator, the Court will adopt the administrative law judge's finding of facts with minor changes and will make its own conclusions of law.


 Plaintiff David Gaibis and Charles Lowry are individuals employed as over-the-road drivers by Defendant Werner Continental, Inc., at its West Middlesex, Pennsylvania terminal. The Plaintiffs at all relevant times have been members of Teamsters Local Union 261 (hereinafter the Union), a labor organization which has been the exclusive bargaining agent of the Plaintiffs in their employment relationship with Defendant Company in its operation at West Middlesex, Pennsylvania. The collective bargaining relationship between the Defendant and the Union was governed during the period from April 1, 1976 to March 31, 1979 by the National Master Freight Agreement and Teamsters Joint Council No. 40 over-the-road supplement agreement (hereinafter "NMFA").

 Defendant Werner Continental, Inc., a trucking company certified by the Interstate Commerce Commission as an interstate common carrier of general commodity cargo, was acquired on January 1, 1979, by Hall's Motor Transit Company, another certified interstate carrier. During the entire period from 1975 to date, Werner Continental, Inc., and its successor, Hall's Motor Transit Company, operated a truck terminal in West Middlesex, Pennsylvania. The combined trucking companies will be referred to hereafter as "Hall's." Any reference to "Hall's" may be taken to include the operations of Werner Continental, Inc. prior to January 1, 1979, unless otherwise specified.

 Freight loads are dispatched from West Middlesex, day and night, on a sporadic basis reflecting the competition which exists among truckers to provide a fast and reliable service despite an unpredictable demand. Since Hall's operation requires that a driver be available to take to the road as soon as a load to a specific location materializes, over-the-road truck driving from the West Middlesex terminal is not a 9 to 5 job with a fixed starting and quitting time.

 The dispatch of the over-the-road drivers by Hall's from West Middlesex is governed not only by the nature of the trucking business, but also by the requirements of federal safety regulations which regulate the driving hours and the rest periods of interstate road drivers. These federal safety regulations, known as the Federal Motor Carrier Safety Regulations (hereinafter sometimes referred to as "FMCSR" with citation to §§ 395 to 395.13 of 49 CFR), were promulgated by the Federal Highway Administration (hereinafter "FHA") of the Department of Transportation, and are administered by FHA's Bureau of Motor Carrier Safety (hereinafter "BMCS").

 Under the regulations pertaining to the hours of service of interstate road drivers, FMCSR §§ 395.1 to 395.13, the drivers are required to maintain an hour-by-hour log for every day of the year, whether they are working or not. In this log, the driver's time must be attributed to one of the following functions that would be relevant in this case:

 "Driving time" -- the time when a driver is at the driving controls of a motor vehicle in operation.

 "On-duty not driving" -- all time other than driving time from the time a driver begins to work or is required to be in readiness for work until he is relieved from work and responsibility for performing work.

 The significance of the daily log derives from the requirement in FMCSR § 395.3(a)(1) and (2) that a driver must be given eight consecutive hours of off-duty time. Moreover, according to FMCSR § 395.3(b), a driver is not permitted to be on duty more than a total of 60 hours in any seven consecutive day period, or more than 70 hours in any eight consecutive day period. Because of this regulation, it is of crucial importance how drivers log their off duty time. If off duty time is improperly logged as either "on duty" or "on duty not driving" then the trucking company and the drivers almost certainly would be in violation of the regulations since drivers who have been on duty too long would have been illegally dispatched. Finally, FMCSR § 395.8(a) provides that a driver who incorrectly logs his time is subject to criminal prosecution, as is a carrier who instructs a driver to log his time improperly.

 There is no dispute that Hall's allows West Middlesex drivers a 10 hour rest period (or two hours more than the mandatory rest period) following 10 hours of driving time or 15 hours of on-duty time.

 There is also no dispute that after the mandated 10 hour rest period is over and the driver still has at least 22 hours of "on duty" time available, a driver assigned to the West Middlesex terminal is considered to be "in service" and must be available in some form to receive a telephone dispatch call 24 hours a day. Hall's however, has not told its drivers that they must be available personally to receive a telephone dispatch call.

 After receipt of a telephone dispatch call, the industry-wide collective bargaining agreement and the company's work rules provide that a driver must report to the West Middlesex terminal within two hours.

 Drivers at the West Middlesex terminal are directed by Hall's to log the time while they are awaiting a telephone dispatch call as "off-duty". They are not paid for this time, and drivers who have attempted to log the waiting period as "on-duty not driving" have been warned about possible discipline, or actually have been disciplined by the company.

 As long as a driver has enough driving hours available, the telephone dispatch call from the West Middlesex terminal may come at any time during the waiting period, and is unpredictable because of the nature of the demand for freight services. The driver may receive a call immediately after his 10 hour rest period ends, several days after his rest period ends, or at any time in between.

 Further contributing to the unpredictability of the telephone dispatch call is the "hog" seniority system imposed by the industry-wide collective bargaining agreement. Under this system the driver with the most seniority, and possessing the necessary "off duty" hours, receives the next dispatch call irrespective of the time of his last call. It is possible, therefore, for a high seniority driver to get two or more dispatches before a driver at the bottom of the seniority list receives one.

 The priority rights of "foreign" drivers is another factor contributing to the unpredictability of the telephone dispatch system. Under the concept of "foreign power courtesy," a driver from another Hall's terminal who has delivered a load to West Middlesex, is dispatched before any drivers domiciled at West Middlesex.

 Because of the unpredictability of the telephone dispatch system, Hall's requires a high level of driver availability during the waiting period. "Log audit cards" are maintained by dispatchers at West Middlesex to record all incidents of driver non-availability. The audit card of a driver who is supposed to be available after the mandatory rest period is marked "busy" or "no answer" if the dispatcher fails to get through, and "absent" or "not home" or "not home will call" if someone other than the driver answers the phone, but that person does not affirmatively accept a dispatch call on behalf of the driver.

 The discipline imposed for any of the forms of missed telephone dispatch calls varies with the frequency and severity of the incidents. Missed dispatch calls are treated cumulatively, and a history of busy signals, no answers, driver non-availability when a call is completed, failure by a third party to accept a dispatch call, or failure to report to the terminal within two hours of receiving a dispatch, leads to progressively more severe forms of discipline. The forms of discipline begin with a letter of reprimand, then a suspension, then a threat of dismissal, and culminating, finally, in actual dismissal in the case of "chronic and habitual absenteeism."

 "Chronic and habitual absenteeism" as grounds for dismissal is sanctioned by the industry-wide collective bargaining agreement and represents an accumulation of incidents of busy phone lines, no answers, driver non-availability if there is an answer, or failure by an answering third party to accept a dispatch on behalf of driver. If a driver believes he has been unfairly disciplined or that the charge of "chronic and habitual absenteeism" is groundless, he may invoke the grievance procedure of the industry-wide collective bargaining agreement.

 Even apart from company-imposed discipline for missed telephone calls, there are strong economic incentives for drivers not to miss dispatches. Compensation and vacation time are tied to the number of "runs" a driver makes, with the result that a missed dispach can be costly.

 The unpredictability of the dispatch call and the two-hour reporting deadline, combined with the economic incentives which drivers have for not missing telephone dispatches, as well as the threat of discipline (and incidents of actual discipline) which follow missed telephone dispatch calls, tend to keep West Middlesex drivers close to their home telephones during the period when they are supposed to be available. Most drivers inform the dispatchers that they are to be reached at their home phones, and in fact most dispatch calls are received personally by the drivers at their home telephones.

 One possible alternative to constant driver availability alongside the home telephone is for the driver to attempt to determine in advance when a dispatch call will come. The record shows that such driver-initiated dispatch inquiries are ineffective in freeing drivers from their home telephones because dispatchers are unable to predict when a load will be available for a particular driver.

 Another alternative to personal availability alongside the home telephone -- the use of secondary telephone contact points -- does not permit drivers to pursue freely ordinary leisure time activity during the period when they are supposed to be available. To illustrate, a driver may want to use his off-duty time for a trip to a camping site where there are no telephones, or to see a movie or to eat at a fast-food restaurant where he cannot easily be paged. Or the driver may want to visit a regional shopping center where the use of multiple contact points is not feasible. Thus as a practical matter, the most that recourse to a secondary contact point means is that a driver may select one other phone to which he is tied, but the secondary contact point, like the primary contact point at home, must be within two hours distance of the West Middlesex terminal.

 Hall's has not interferred with or discouraged the use of driver initiated dispatch inquiries or secondary contact points.

 Apart from driver initiated dispatch inquiries and the use of secondary contact points, the only other viable alternative to personal telephone availability identified on the record is the use of third party dispatches -- that is, the acceptance of a dispatch by someone other than the driver. The availability and/or lack of availability of a third party dispatch procedure at West Middlesex was the main point of contention during the administrative hearings.

If, for any reason, a driver is not going to be at the place normally called by the company when work is available, and no one else is available at that place to accept a work call for that driver, the driver is required to so notify the company so that, if a load does materialize, the driver can be reached and offered work.

 Hall's interprets the August 5, 1975 policy statement as meaning that unless a third party specifically asks for a dispatch, and affirmatively represents that he or she is authorized to accept the dispatch, a third party dispatch will not be given, and the call will simply be recorded on the log audit card as showing that the driver was not available. Other trucking firms do not require the invocation of specific formulas before third party dispatches are given; the drivers merely inform these other companies once of the names of adult persons authorized to receive dispatches.

 Neither the terms of the August 5, 1975 policy statement nor the interpretation of the policy statement are well known to the West Middlesex drivers or the members of the driver's family who would be the most likely recipients of those calls. Hall's third party dispatch procedure does not appear in the company's work rules nor do they appear in written dispatch instructions given to dispatchers although ...

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