United States v. TIME-DC, INC.

Decision Date22 August 1974
Docket NumberCrim. A. No. 73-CR-50-R.
PartiesUNITED STATES of America, Plaintiff, v. T.I.M.E.-D.C., INC., Defendant.
CourtU.S. District Court — Western District of Virginia

COPYRIGHT MATERIAL OMITTED

E. Montgomery Tucker, Asst. U. S. Atty., Roanoke, Va., Jerry N. Williams, Dept. of Transp., Washington, D. C., for plaintiff.

Avrum M. Goldberg, Morgan, Lewis & Bockius, Washington, D. C., and Wilbur L. Hazlegrove, Hazlegrove, Dickinson, Smith & Rea, Roanoke, Va., for defendant.

OPINION and JUDGMENT

DALTON, District Judge.

This proceeding involves a two count criminal information filed against the defendant, T.I.M.E.-D.C., Inc., alleging violation of the Interstate Commerce Act, Part II; Motor Carriers, 49 U.S.C. § 322(a). The defendant is charged with failing to adhere to § 392.3 of the Federal Highway Administration Regulations which provides:

No driver shall operate a motor vehicle, and a motor carrier shall not require or permit a driver to operate a motor vehicle, while the driver's ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him to begin or continue to operate the motor vehicle. However, in a case of grave emergency where the hazard to occupants of the vehicle or other users of the highway would be increased by compliance with this section, the driver may continue to operate the motor vehicle to the nearest place at which that hazard is removed. 49 C.F.R. § 392.3.

Section 322(a) of the Interstate Commerce Act imposes criminal penalties for the knowing and willful violation of any of the regulations imposed by the Highway Administration.1 Defendant has entered pleas of not guilty to both counts of the information; and the parties have agreed to resolve this controversy by depositions and briefs rather than trial since the court believes it can be more efficiently and effectively disposed of in this manner.

T.I.M.E.-D.C. is an interstate motor carrier with its main office in Lubbock, Texas. The Company has fifty-six terminals across the nation, and domiciles road drivers at thirty-seven of those terminals. The two incidents which form the basis of the two count information concern T.I.M.E.-D.C.'s second largest relay station at Winchester, Virginia, where in excess of one hundred and seventy line drivers are domiciled. Prior to the incidents the defendant has been experiencing an increase in absenteeism at its Winchester terminal which had caused severe economic problems.2 In an attempt to combat this increased absenteeism, the Company instituted a new policy regarding driver mark-offs for illness on August 31st or September 1st. The Company alleges that pursuant to this program a driver calling in to inform the Company's dispatcher that he would be absent due to illness was told that his absence would be considered unexcused unless he submitted a doctor's slip or similar verification of his illness. Absent medical verification, an unexcused absence letter, stating that the absence on a particular day for sickness was unexcused, would issue. If the driver submitted verification of his illness, the unexcused absence letter would be expunged from his record, and a second letter excusing the absence sent to the driver. Although the Company alleges that its dispatchers were instructed to convey this information to all drivers calling in to mark off, the exact content of the conversations between the dispatcher and the drivers involved in the incidents in question is in controversy, and will be subsequently considered. In addition, the Company's terminal manager testified that the Company did not begin issuing letters of retraction informing drivers that their absence was considered excused until December, 1972 or January, 1973, after the incidents involved.3

The first of the two incidents occurred on Saturday, September 8, 1972, approximately one week after the program had been initiated, when line driver Loring R. Nail's wife telephoned the Company's dispatcher George Giles and asked that her husband be marked off work that evening because he had injured his back. Dispatcher Giles responded that he would mark Mr. Nail off his run and that pursuant to the Company's unexcused absence procedure the markoff would be considered unexcused and an unexcused absence letter would issue. The remainder of the conversation is on dispute, with Giles testifying that he informed Mrs. Nail that the letter would be voided if Mr. Nail provided a doctor's slip; and driver Nail and his wife indicating that Giles did not relate this information.4

Within an hour of Mrs. Nail's conversation, Mr. Nail telephoned dispatcher Giles. He inquired regarding the effect of the unexcused absence letter and was informed that his absence would be considered unexcused and that he would receive a letter to that effect which would be placed in his file. Part of this conversation is also disputed, with Giles stating that he explained that a doctor's certificate would nullify the letter and driver Nail testifying that he did not believe he was given this information by dispatcher Giles.5 Driver Nail then stated that he had too many years of service with the Company to receive another letter and requested to be placed back in the lineup. At approximately 7:00 p.m. that evening, driver Nail arrived at the terminal, picked up his route bills, and departed on his normal run to Baltimore and back.

The second incident occurred on Saturday, October 21, 1972, when driver Carlton Brown's wife telephoned dispatcher Giles and asked him to mark her husband off work for that evening because he had an ear infection and was going to a doctor. In response, Giles told Mrs. Brown that an unexcused letter would issue and a copy would be placed in her husband's file. Mrs. Brown and dispatcher Giles provide differing testimony as to the remainder of the conversation. Dispatcher Giles indicated that he did inform Mrs. Brown of the doctor's certification and Mrs. Brown testified that it was not explained to her.6

Approximately three hours after this conversation, just prior to 6:00 p.m., driver Brown telephoned the Company and requested to be placed back in the lineup.7 Between 10:00 and 10:30 p.m., driver Brown appeared at the terminal, picked up his route bills and departed for Knoxville, Tennessee. After traveling 110 miles, he stopped to inspect his vehicle. He became nauseous and vomited. He realized he could not continue and, therefore, contacted the Company and was advised to obtain medical treatment. Relief was sent, and Brown went to a hospital emergency room where he was treated for an inner-ear infection and then returned to his home by the Company. Subsequently, Brown provided the Company with a doctor's certificate confirming his ailment.

The Government's argument extrapolates as follows. T.I.M.E.-D.C. was experiencing significant absenteeism at its Winchester terminal. This absenteeism disrupted scheduling and produced delivery delays, which precipitated economic losses. In addition, a recent grievance committee determination on a petition filed by the driver's union in 1971 had abrogated the Company's prior unexcused absence policy. The committee ruled that the Company could not require a driver, who had marked off due to illness, to submit a doctor's certification prior to being permitted to return to work so long as he was off duty five days or less and his ailment was minor. Faced with the necessity of considering a new policy, the Company attempted to implement its new program so as to also discourage the absenteeism it was experiencing. In the alternative, the Company sought to document all unexcused absences to prevent contributions beyond its obligation to the driver's medical insurance plan.8 In order to accomplish its objective of decreasing absenteeism, the company refrained from fully explaining various aspects of its new policy, thereby creating an aura of confusion and concern which would coerce drivers into refraining from marking off due to illness. However, by so doing, the Government contends that the Company disregarded the requirements of the Federal Highway Administration Regulation intended to prevent ill or fatigued drivers from operating motor vehicles.

The evidence reveals that the Company did not notify the drivers of the new policy by placing notices on the terminal bulletin boards or conducting group meetings, although the Company did publish notices for some work rules and did conduct informational group safety meetings to discuss safe driving practices. The Winchester terminal manager testified that the Company did not publish any explanation of the new program. Instead, the company relied on "word-of-mouth" to convey the elements of its unexcused absence policy. Of course, the content of the conversations wherein the policy was explained to the drivers is a major point of controversy.9 The Company contends its dispatcher explained that if a doctor's verification was presented the unexcused absence would be voided. The testimony of drivers Nail and Brown indicates that there is a question as to whether they were informed of the procedure for voiding an unexcused absence letter. The confusion regarding the policy is further documented by dispatcher Giles' testimony that several drivers had questioned him as to its import. In addition, the government argues, even assuming the possibility of voiding the letter was mentioned, the Company's explanation left many unanswered questions.10

The Government asserts that the unexcused absence policy was particularly coercive because of the drivers' uncertainty regarding the effect of an unexcused absence letter in comparison with the warning notice permitted under the union's collective bargaining agreement. In October of 1972, the driver's union filed a grievance against the Company concerning this question.11 The union charged that the unexcused...

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