dissenting:
In my judgment, Yellow Freight was fully justified in disciplining James Hornbuckle for his late deliveries in April 1991, which was consistent with a pattern of delayed deliveries by this driver. The discipline was imposed only after warnings had been given to him about late deliveries in December 1990 and on April 9 and 12,1991, and after he had been counseled informally for other delayed deliveries without any disciplinary action. That Hornbuckle pulled over to the side of the highway when tired and slept is to be encouraged, indeed mandated. That he is entitled, however, to avoid the consequences of discipline when he knowingly undertook trips when he was too tired to complete them leads to a misapplication, in my judgment, of the Surface Transportation Assistance Act (“STAA”), 49 U.S.C. app. §§ 2301-2305.
The STAA encourages safety on the highways by prohibiting employers from, among other things, disciplining employee drivers who refuse to operate vehicles when their ability or alertness is impaired by fatigue. The facts in this case do not support a finding that Yellow Freight disciplined Horn-buckle with any intent or motive to undermine that necessary safety requirement. The facts found by the ALJ show that Yellow Freight had in place a full array of regulations and procedures to assure driver rest that were more generous to the driver than that required by law or by Yellow Freight’s collective bargaining agreement. A Yellow Freight driver could opt for ten or twelve hours between assignments, in lieu of the mandated eight hours; the driver could take a six-hour “slide” before any dispatch and, even after he received a dispatch, could take up to two hours before reporting; and the driver could take off any Monday, Tuesday, or Wednesday (days applicable here) to rest. Finally, drivers were allowed an additional hour of “grace” in the delivery of freight. In all cases, drivers were instructed that it was a firm policy of Yellow Freight that drivers not seek to take trips when they were fatigued.
Bypassing these procedures and ignoring earlier counseling with respect to them, Hornbuckle took dispatches in April 1991 when he knew he was tired, relying on his ability to get rest while on the road, and thereby delivered freight late. By this method he was able to obtain work in circumstances that violated statutory and company safety rules. He calculated that he could, and now he knpws he can, avoid discipline for this breach by simply seeking refuge under the STAA. I would find that effort unavailing, as did the arbitrator who affirmed discipline when resolving a collective bargaining grievance in this case and as did the ALJ in the formal agency proceeding.
The record shows, in addition to the chronological facts described in the majority’s opinion, that Hornbuckle had a history of delivering freight late. He acknowledged that he had been asked “time and time again to try to be on time”; that if he “continued to delay freight, that it was going to get [him] in trouble”; that he had been “counseled” over the months preceding April 1991 “about [his] delay of freight.” The line haul manager, Mr. Sowers, testified that when he started receiving computer communications from terminals about Hornbuckle’s tardiness, he called Hornbuckle in to show him the messages and to enlist Hornbuckle to set an example because Hornbuckle was the job steward. The manager reported Hornbuckle to say in response, “well, I’m tired and I’m having to take naps and my Dad told me never to get in a hurry, to take my time.” When the situation did not improve, Horn-buckle was called in again and counseled about late freight. His response this time was simply, “I’m protected, I can move freight at my own pace.”
Against this background, when Hornbuckle received the letters in April 1991 that are the *989subject of this action, he asked Mr. Sowers to remove them from the file. Mr. Sowers justified the letters, referring Hornbuckle back to the previous occasions and conversations that the two had had about late deliveries of freight. Hornbuckle responded, “he was protected, that he was driving fatigued, that nothing could be done, that he would take it at his own pace.” Hornbuckle continued, “I’m going to take on Yellow Freight, you can’t make me go any faster, I’m going to run at my pace, I’ll take you to court.”
Relying on evidence of this type, which is repeated in the record, the late delivery in December 1990, and the three additional late deliveries in April 1991, the ALJ found as a fact:
The respondent has established a pattern of delay of freight by the complainant. The respondent had met with the complainant and counseled him about these problems in the past.
Yet more problematical for the conclusion reached by the majority opinion is the fact that Hornbuckle fulfilled his promise of driving fatigued when he delayed freight on three occasions in April 1991. When asked whether he was aware that he was fatigued when Yellow Freight “put him on the road,” Hornbuckle said that he was. He testified:
Q. And you knew that yourself?
A. Yes.
Q. That on that run, you would be fatigued?
A. Yes.
Q. But you didn’t call in and take your slide before you received your dispatch, did you?
A. No, I did not.
Q. You have every right to take the six hours off to take an additional rest, and you realized that you were fatigued and you could not make that run without taking that extra break?
A. I certainly did.
Q. But you didn’t do it?
A. No, I didn’t.
Hornbuckle also acknowledged that he did so despite Mr. Sower’s repeated instructions that Hornbuckle was obligated to get rest and not take dispatches in a fatigued state.
The ALJ thus found, in accordance with the record:
The complainant acknowledged that by the time that he received that call, he had already realized that, if he accepted a dispatch that afternoon, he would be driving fatigued. Nevertheless, despite his recognition of his own fatigued condition he did not call the dispatcher to take the slide to which he was contractually entitled.
The violation in this case was Hornbuckle’s, not Yellow Freight’s. Yellow Freight did all that it virtually could to assure that drivers were rested and at the same time provide for timely deliveries for their customers. Were we to require companies such as Yellow Freight to institute additional procedures that give drivers more control in determining the schedules based on fatigue considerations, the companies could not long remain in business.
In the circumstances of this case, I believe that the ALJ had it right when he found that Yellow Freight did not violate the STAA, and that the Secretary failed in his obligation to accept the A-LJ’s findings of fact when supported by the record, as they are in this case. See 29 C.F.R. § 1978.109(c)(3). Because I would reverse the Secretary’s decision, I respectfully dissent.