That meant that Bates' total weight (tractor and cargo container) during this drive was more than 80,000 pounds. Bates was operating at the time under a commercial motor vehicle license limited to 80,000 pounds total weight (tractor and cargo) absent a special permit. Tr. 22.

   At one point during the drive to CSX, Bates testified, the truck swayed, but he regained control. Tr. 30. When Bates arrived at the CSX yard, one of his tractor tires blew out after he drove over a speed bump. Tr. 32, 36. Bates thought that the blow-out was caused by an overweight load, but he did not have the tire examined and never determined what actually caused the blowout. Tr. 80. CSX personnel took receipt of the cargo container, and Bates signed the CSX interchange, which listed the cargo container weight as 59,711 pounds. Tr. 34, CX 3. If the CXS weight figure was accurate, Bates had been driving less than 80,000 pounds.

   When Bates got back to West Bank, he complained to Jody Thiaville (the dispatcher), Jimmy O'Brien (a company superintendent), and William Wactor (an official of West Bank's parent company), about being given a load that put his total weight (cargo container and truck tractor) over 80,000 pounds. Bates said he did not want to drive more than 80,000 pounds gross weight because he felt unsafe. Tr. 37, 39, 106, 121-22,137-38.

   At the administrative hearing, Thiaville the dispatcher testified without rebuttal that the 80,000 pound "limit" on Bates' commercial driver's license was not a limit on how much he could carry lawfully. It was simply the maximum load Bates could haul without getting a permit. Tr. 110-111. Thiaville also testified without rebuttal that getting a permit to carry more than 80,000 pounds was a five-minute process. West Bank kept a stack of excess weight permits on the premises, and when a permit was needed, the driver only had to get his truck's exact weight on the truck scale by the yard entrance, call a State of Louisiana office, and receive a permit number to be entered on one of the blank forms. Getting permits for loads over 80,000 pounds occurred on a "routine basis" at West Bank. Id., 39.

   West Bank's truck scale, which measured ten feet by one hundred and twenty feet, was located just inside the entrance to West Bank's yard. Tr. 112. Bates testified he never noticed it and that West Bank never called it to his attention. Tr. 68.

   At the hearing, Bates testified that he thought he could not legally carry more than 80,000 pounds because of the 80,000 pound "limit" on his commercial driver's license. Tr. 22. Bates also thought it was unsafe to drive a gross weight exceeding 80,000 pounds. Tr. 39.

   In rebuttal, both Thiaville and O'Brien testified that when Bates returned to West Bank after the blown tire incident, he did more than complain about carrying a load he considered too heavy. Under direct examination by the Government, Thiaville testified that Bates

threatened to drop his load if West Bank ever gave him another load that put him over 80,000 pounds:

Q. When you talked to Mr. Bates on June 12, did he say that if he had another container that he thought was overweight he would drop it wherever he was at?

A. Yes, sir. He did.

Tr. 109. Under cross examination by West Bank, Thiaville used slightly different language:

Q. [Y]ou indicated under direct examination that Mr. Bates indicated to you that he, if he felt he had another overweight load, he was going to drop it in the street.

A. Yes, sir. That's what he said.

Tr. 114. On redirect, the Government sought to impeach Thiaville's testimony as inconsistent:

Q. Mr. Thiaville, Mr. Bates never said he would drop his container or his trailer in the street. Did he?

A. Yes, he did.

Q. What he really said is that if he thought that his -- he was carrying an overweight load he would drop it wherever he was. Isn't that what he really said?

A. No, sir.

Tr. 115. At this point, Government counsel further sought to impeach Thiaville's credibility by demonstrating inconsistency between Thiaville's testimony at the hearing and his deposition testimony:

Q. Do you remember what your answer was [at the deposition]?

A. That he would drop it anywhere he wants that he felt it was unsafe or overweight, whatever. He would drop it wherever he was. . . .

Q. But there was never any mention, was there, during your deposition that he would drop the load in the street. Was there?

A. No, sir.

Q. He didn't use those terms in the street. Did he?

A. He did at that day. Yes, sir. . . .

Q. But you didn't tell me that in your deposition. Did you?

A. I don't believe you asked me. . . .

Q. [I]f you go to the next page [of Thiaville's deposition]. My question was, "At any time did Mr. Bates say that he would -- did he actually say he would drop the container in the street or on the highway or was that your understanding of what he meant?"
    Would you read your answer beginning on line 20. . . .

A. "That's what he said. He would drop it anywhere". . . .

JUDGE KERR: And is that what you testified to at the time of the deposition?

THE WITNESS: Yes, sir, which -- same thing. He said he would drop it anywhere.

Tr. 115-18.

   O'Brien, the West Bank supervisor who told Bates he was fired, testified that, "he [Bates] threatened to drop a container in the street, endangering the public and, you know, safety laws. It's just something that can't be done. Somebody makes a threat like that, you can't allow it to proceed any further." Tr. 38, 121-22.

   After Bates left, Wactor told O'Brien to write a letter for the file to document

West Bank's reason for firing Bates. The letter O'Brien composed and placed in the file stated as follows:

Date: 6-12-98
To: Whom it may concern.

Today Mr [sic] Bates informed us that he would not haul any heavy loads, and if he found that the load was to [sic] heavy !!!! he would drop it at that point. That statement caused the trip lease [agreement] to be terminated. Mr. Bates [sic] services are no longer needed at this terminal. 6-12-98

            Thank You
            Jimmy O'Brien

Tr. 123-24; CX 5.

   Government counsel questioned O'Brien about the difference in language between O'Brien's testimony and the letter:

Q. I'll ask you to read the letter, sir, and I'll ask you to tell me if there is anything in this letter about Mr. Bates telling you or telling Mr. Thiaville that he would drop a load in the street.

A. [O'Brien reads the letter out loud.]

Q. Okay. And I'll ask you again, sir, is there anything in this letter that says Mr. Bates said he would drop a load in the street?

A. No, sir, but that's what he said and not being an attorney, I didn't know I had to put that in there at the time. A memo for the files.

Tr. 123-24.

   Otis Banks never denied that he threatened to drop a load "on the street," "anywhere," or "wherever he was."

   "Section 405 was enacted in 1983 to encourage employee reporting of noncompliance with safety regulations governing commercial motor vehicles. Congress recognized that employees in the transportation industry are often best able to detect safety violations and yet,

because they may be threatened with discharge for cooperating with enforcement agencies, they need express protection against retaliation for reporting these violations." Brock v. Roadway Express, Inc., 481 U.S. 252, 258, 107 S.Ct. 1740, 1745-46 (1987).

   To prevail on a claim under §405(a), the complainant must prove that he or she engaged in protected activity as defined in subsections 405(a)(1)(A), 405(a)(1)(B)(i), or 405(a)(1)(B)(ii); that his or her employer was aware of the protected activity; that the employer discharged, disciplined or discriminated against him or her; and that there is a causal connection between the protected activity and the adverse employment action. BSP Trans., Inc. v. United States Dep't Labor, 160 F.3d 38, 45 (1st Cir. 1998); Clean Harbors Envtl. Servs., Inc. v. Herman, 146 F.3d 12, 21 (1st Cir. 1998); Yellow Freight Sys., Inc. v. Reich, 27 F.3d 1133, 1138 (6th Cir. 1994); Moon v. Transport Drivers, Inc., 836 F.2d 226, 228 (6th Cir. 1987).

ALJ at 13.

   We find the distinction drawn by the ALJ between the phrase "drop in the street" and "drop at that time" trifling. As O'Brien explained it at the hearing, when he used the phrase "at that time" in the memorandum, it did not occur to him that the phrase might be construed to exclude the concept of dropping the load "in the street." Thiaville testified to the same effect. This strikes us as a realistic and plausible accounting by the witnesses for the alleged discrepancies. "In the street" is in effect, a lesser included

concept. Moreover, it was particularly natural for these two witnesses to think of "in the street" as a lesser included concept, since the overwhelming majority of time Bates would spend hauling cargo would be while driving on streets and highways. It is also significant that the ALJ's analysis in this regard is entirely semantic; there is no suggestion whatever in the decision below that the ALJ relied on the demeanor of the witnesses.

   Because the statements are not inconsistent, to the extent the ALJ's decision depends on testimonial inconsistency by the witnesses, there is no basis in the record for the ALJ's finding that company witness testimony was not credible. Moreover, under any of the proffered formulations, the core of West Bank's reason for firing Bates was the same: company officials viewed the threat to abandon a trailer as justifying termination -- even if it is unclear whether the safety argument was articulated contemporaneously or not.

   The fact that Wactor did not personally hear Bates make his threat does not undermine the testimony of Thiaville and O'Brien or the June 12 memorandum for the file. Wactor did personally hear Bates make unfounded claims that driving more than 80,000 pounds is an inherently unsafe practice -- claims that Bates corroborated at the hearing and that tend to support an overall picture of Bates as a person with mistaken notions about commercial vehicle safety laws.

   With respect to Bates' prior willingness to drive the loads he was given, we reject the inference drawn by the ALJ that Bates had established a record of behavior that somehow made West Bank's charge of threats implausible. Three weeks of behavior is just that; it is not character or practice. Moreover, we know nothing from this record about the kinds of loads Bates was driving during this time.

   We find West Bank's evidence of a legitimate business motive -- unwillingness to employ a driver who reserves the right to drop loads that he considers "too heavy" -- compelling. Correspondingly, we find the ALJ's reasons for discounting that evidence neither logical nor supported by substantial evidence in the record as a whole. The parties having litigated this case on the theory that West Bank had only one motive for terminating Bates -- either animus because of Bates' safety complaints or an unwillingness to employ a driver who threatens to drop loads based on his subjective judgments -- and our having concluded that the record supports only the latter and not the former, the complaint must be dismissed. Cf. United States Postal Service v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 1482 (1983) (when the employer clearly sets forth, through the introduction of admissible evidence, a legitimate business reason for the adverse employment action, the trier of fact must decide which party's explanation of the employer's motivation it believes, citing Texas Dep't Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094 (1981); Ex rel Thom v. Yellow Freight System, Inc., No. 93-STA-2 (Sec'y Labor, Nov. 19, 1993) (holding that Burdine applies under STAA §405), affirmed sub nom., Yellow Freight Sys., Inc. v. Reich, 38 F.3d 76, 85 (2d Cir. 1994).

2. OSHA did not establish the necessary foundation for the ALJ's ruling of law that Bates' complaints constituted protected activity within the meaning of §405(a)(1)(A)

A. Interpretation of §405(a)(1)(A) requires Chevron analysis

   Although our substantial evidence review of the fact findings below leads us to dismiss the complaint on its merits, we will briefly comment on the ALJ's and OSHA's analysis of the question whether Bates' safety complaints constituted protected activity within the meaning of §405(a)(1)(A). In our view, OSHA did not provide a legally sufficient basis for the ALJ's ruling that Bates' complaints were protected by §405(a)(1)(A). Cf. 5 U.S.C. §554(e) (agency may issue a declaratory order to terminate a controversy or remove uncertainty).

   West Bank contends that safety complaints are not protected activity within the meaning of §405(a)(1)(A) unless (a) they relate to an actual violation of a commercial motor vehicle regulation, standard or order and (b) the regulation, standard or order in question is a safety law. WB Br. at 2. In this case, the truck was never weighed, and there is nothing in the record to justify giving more credence to Union Pacific's interchange than CSX's interchange. On this ground alone the record cannot support a finding that the load Bates hauled on June 12 exceeded 80,000 pounds. WB Br. 6-7. More importantly, West Bank contends, OSHA failed to establish that an 80,000 pound limit based on safety considerations even exists. "Assuming for a moment that the load the Complainant hauled was overweight, to haul an overweight container is neither unsafe nor a violation of any state or federal law. The overweight cargo may be transported provided the carrier obtains a permit to do so." Id. at 13. Under West Bank's analysis, a complaint regarding an overweight load would not be a complaint alleging a violation of a safety law; thus, the complaint would be unprotected.

   OSHA disputes both propositions. According to OSHA, it makes no difference whether carrying a gross weight exceeding 80,000 pounds is unlawful or whether the 80,000 pound "limit" is a safety law. All that is required by §405(a)(1)(A) is that the employee have a reasonable belief that the events in question violate a motor vehicle safety regulation. OSHA Br. at 12.

   The ALJ did not purport to decide whether OSHA's construction of §405(a)(1)(A) was legally tenable. Instead, the ALJ treated the meaning of §405(a)(1)(A) as a matter previously resolved in two earlier decisions. The first decision cited by the ALJ was a Sixth Circuit decision holding that protection under §405(a)(1)(A) is not dependent on actually proving a violation of the commercial motor vehicle safety law in question. Yellow Freight Sys., Inc. v. Martin, 954 F.2d 353, 356-57 (6th Cir. 1992). The second was a Secretary of Labor decision in which the Secretary stated that it was undisputed that the driver refused to operate an overweight truck and that his refusal was based on the potential violation of federal regulations and a safety concern for himself and the public. Ex rel Galvin v. Munson Trans., Inc., No. 91-STA-41 (Sec'y Labor, August 31, 1992).

   It does sometimes happen that a case presents a question of statutory construction that has been definitively resolved in prior decisions. Under those circumstances, the adjudicator in the pending case may well accept the earlier decisions as stare decisis with respect to the statutory construction issue. But when the adjudicator does this, the adjudicator is still engaging in statutory construction analysis; the adjudicator is merely incorporating the statutory construction analysis of the earlier decisions into the case sub judice.

   A special difficulty arises under a regulatory scheme like STAA's, where a statutory construction issue may be decided in a case litigated only by private parties. Neither private party is in a position to provide the adjudicator with the policy and experiential considerations that only the administering agency can know. As a result, the adjudicator makes a ruling about the statutory text in dispute but without a full interpretive analysis. Subsequently, in a case in which the agency itself is a litigant and which presents the interpretation issue previously decided without the agency's input, it makes no sense for the agency to "rely" on the earlier decision as if it were stare decisis concerning the meaning of the unclear text. (Ideally, the administering agency would prevent these difficulties by intervening in any case that requires resolution of ambiguous statutory text.)

   Here, the parties -- one of whom is the administering agency -- squarely joined issue on whether the "related to a violation of a commercial motor vehicle regulation, standard or order" language of §405(a)(1)(A) requires proof of an actual violation or not. And even though the parties did not focus with any specificity on them, significant subordinate issues were attached, such as whether, assuming a reasonable belief is enough, the reasonable belief test should be subjective or objective, and how one is to determine whether a regulation, standard or order is a "safety" regulation, standard or order. No prior decisional rulings existed that represented a meaningful statutory construction analysis, replete with consideration of OSHA's policy and experiential reasoning.

the employee "has filed a complaint . . . related to a violation of a commercial motor vehicle safety regulation, standard or order." (Emphasis added.) Further, OSHA's reading stands in extreme tension with "the well-settled rule . . . that all parts of a statute, if possible, are to be given effect." Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 633, 93 S.Ct. 2469, 2485 (1973). In a different subsection of §405(a)(1), Congress provided in a very particular way for safety complaints that are unrelated to violations of law. Specifically, subsection 405(a)(1)(B)(ii) applies to refusals to drive based on a reasonable apprehension of serious injury, thereby protecting safety complaints even if they are not related to violations of law. The presence of §405(a)(1)(B)(ii) strongly suggests that this was the manner in which Congress wished to deal with generalized safety complaints, raising serious doubts whether the highly specific language of §405(a)(1)(A) can support the broad interpretation posited by OSHA.

   Finally, taking the entire of text of §405(a)(1)(A) at face value creates no absurdities. One need not plumb the depths of dialectics to think of reasons why Congress might have wanted to exclude mere safety complaints from activities protected by §405. Congress is often concerned when creating whistleblower protection laws to avoid overwhelming agencies and courts with inconsequential complaints. See for example, Griffith v. Wackenhut Corp., No. 98-067, slip op. at 13 (ARB, Feb. 29, 2000). Excluding generalized safety complaints from the ambit of §405 would seem quite an effective way of screening out litigation over speculative or idiosyncratic safety concerns. Certainly there is evidence within §405(a)(1) to suggest that Congress may have had just such a goal in mind. Each category of protected activity within §405(a)(1) contains a kind of quality-control factor. Requiring a link to a motor vehicle safety law helps to assure that both the complaint protected in subsection (a)(1)(A) and the refusal to drive protected by subsection (a)(1)(B)(i) relate to safety risks substantial enough to have caused a lawmaking body to regulate it. Requiring evidence that a refusal to drive protected by subsection (a)(1)(B)(ii) concerns a "reasonable" apprehension of "serious" injury similarly raises the bar for an actionable complaint. See Bob Jones Univ. v. United States, 461 U.S. 574, 586, 103 S.Ct. 2017, 2025 (1983) (it is axiomatic that statutory text must be given effect unless doing so would defeat the statute's plain purpose).

   We are at a loss to understand our colleague's dissenting view that the majority opinion "den[ies] protection to the raising of a concern about overweight loads. . . ." Infra. at 19. The sole purpose of this discussion is to clarify the process by which OSHA can legitimately express and invoke deference to its interpretive views of §405(a)(1)(A) during an enforcement proceeding. Nowhere do we suggest that OSHA's ultimate conclusion that proof of a violation is not a requirement of §405(a)(1)(A) is legally untenable. What we do say is that the ALJ needed more than OSHA's categorical statements about the meaning of §405(a)(1)(A) or the two prior decisions he cited.