Whether the respondent, Landstar Ranger and Scheel Enterprises, violated the employee protection provision of the STAA by terminating the employment of the Complainant, Mr. Louis Demma.

Mr. Louis Demma, Complainant

   Mr. Louis Demma, who had a commercial driver's license for three and a half years, began working for Mr. Leon Scheel of Scheel Enterprises as an over-the-road truck driver in December 1996. Mr. Demma was paid by the mile and his compensation program included a bonus of a $50 U.S. savings bond every week after ninety days of employment. (TR, pages 20 to 22, CX 1)

    According to Mr. Demma, the U.S. Department of Transportation (DOT) has established hours of service rules for commercial truck drivers. A driver may only drive for ten hours straight, or work and drive a combined total of fifteen hours. In addition, there is a rest requirement of eight consecutive hours before a driver may drive another ten hours. As a driver for Scheel Enterprises, Mr. Demma kept a driver's log to record his hours of driving, work, and rest; each page represents one calendar day (See CX 2, Mr. Demma's log book for April 1997). When Mr. Demma completed a trip, he would mail the original sheets from the log to Scheel Enterprises. A carbon copy of each page remained in the log book. (TR, pages 22 to 29)

books at the Colorado border and he had to wait for the log to catch up with him. During the stop, he only managed to get half an hour of sleep. Mr. Demma arrived in Denver around 9:00 a.m and recorded his arrival at the loading dock as 10:45 a.m on January 22, 1997. Afterwards, Mr. Demma saw Mr. Scheel who was angry because he had a sheet of paper indicating where the truck had been. Mr. Scheel later told Mr. Demma he would not be assigned that trip again because Scheel Enterprises couldn't afford to lose the account. (TR, pages 30 to 43, and 78 to 93, and 119 to 125).

   After that trip, Mr. Demma estimated he made trips that violated the hours of service two runs out of ten. Each time that happened, Mr. Demma would tell Mr. Scheel that based on the miles and the required delivery time, he couldn't make the run without violating the hours of service and would have to falsify his driver's log. In a written statement (RX 2), Mr. Demma actually identified two of the trips; they occurred on February 2, 1997 and April 9, 1997. Each time, Mr. Scheel said to make the trip; he just wanted the truck at the destination at the required time. When Mr. Demma drove in violation of the hours of service on those trips, he falsified his log. Mr. Demma acknowledged he could have refused to make the illegal runs but he didn't want to lose the job. (TR, pages 43 to 45, and 117 to 118, and 126)

and consequently he jeopardized some of Mr. Scheel's accounts. Mr. Demma thinks Mr. Scheel considered him argumentative because he told Mr. Scheel every time he couldn't make a drive legally. (TR, pages 58 to 61)

   Mr. Demma attended a Landstar Ranger orientation in April 1997 and received instructions on the hours of service limitations. He never told any person in the Landstar Ranger company about the illegal runs. The truck he drove for Scheel Enterprises was equipped with satellite communications and tracking device. While Mr. Demma knew about the equipment, he didn't believe the company was actually using it to keep track of the trucks. He was not aware at the time he made his log entries that the satellite was recording his actual locations. Mr. Demma was also issued a Landstar Ranger fuel card which permitted him to obtain case advances and purchase fuel. He knew the card transactions would indicate the time and location of purchases. (TR, pages 76, and 93 to 99)

Testimony of Mrs. Linda Demma

   Mrs. Demma is married to Mr. Louis Demma. Although not a licensed truck driver, she rode with Mr. Demma on his trips as a navigator. She traveled with him in January 1997 from Garden Grove to Denver and initially recalled that he drove through the night to get to Denver as soon as possible with only an hour stop prior to Colorado. However, on cross-examination, Mrs. Demma stated that because they made that drive many times, she couldn't remember whether that one hour stop occurred on January 21, 1997. She does know they have stopped in Crescent Junction. They stopped once for 45 minutes to an hour near Crescent Junction because the log book was off and DOT was checking the logs at the scales in Colorado. Mrs. Demma was present in the Scheel Enterprises' office when Mrs. Scheel offered another driver a hot load.

   Mrs. Demma also indicated that she rode with Mr. Demma during the April 1997 Sacramento, California to Yuma, Arizona trip. Her recollection of the events is the same as Mr. Demma's testimony.

   Mrs. Demma is the financial manager in the Demma household. While Mr. Demma worked for Scheel Enterprises, he earned between ,400 to ,600 a month. She doesn't believe he ever received the savings bonds. After being terminated by Mr. Scheel in May, Mr. Demma did not work again until mid-July when he returned the Highway Express earning about the same salary he had with Scheel Enterprises. During that period of unemployment, the Demmas lived in a tent in the mountains of Montana. Eventually, in April 1998, Mr. Demma got out of the truck driving business (TR, pages 132 to 139)

Testimony of Mr. Patrick O'Malley

   Mr. O'Malley works in the Safety Department for Landstar Ranger, which is the third largest trucking enterprise in the United States. Under Landstar Ranger's business arrangement, it leases trucks from owner/operators, such as Scheel Enterprises. Landstar Ranger agents arrange shipments for the trucks. The company provides operating authority and liability insurance. Individual truck owners may also arrange their own shipments, but the shipment information still goes through the Landstar Ranger system. Mr. O'Malley has been with the company eighteen months. He has thirteen years experience in the trucking business with five and a half years in safety. The Safety Department has several responsibilities. Its primary function is to ensure compliance with DOL rules and regulations. Other responsibilities include training, loss prevention, and audit. There are two aspects to the audit function. Part of his eighteen person staff enters into a computer all the times from the driver logs of nearly 4,000 drivers. The input error rate is within tolerable levels. The computer then checks the data to determine whether the drivers are complying hours of service regulations. Another group of individuals randomly samples the logs for falsification by cross referencing other information such as data from fuel cards. If a falsified log is identified, then the driver is placed on a ninety day review and all his logs are reviewed. Each quarter, the company conducts about a thousand sample audits so that over the course of a year, each driver is audited once. If a violation is noted, the company's first response is education. Continued violations lead to progressive disciplinary action. According to company records, Mr. Demma attended the one day session, National Safety Council Defensive Driving Course in Jacksonville, Florida. (TR, pages 140 to 150, 174 to 179, and 188 to 191)

   If Landstar Ranger receives a complaint about one of its operators, they will put the company on probation pending a review. After receiving Mr. Demma's complaint from DOT, Landstar Ranger put Scheel Enterprises on notice and conducted a critical review. Landstar Ranger did not identify any "egregious offense or any problems." Mr. O'Malley personally supervised the audit of Scheel Enterprises which included a review of the computer data and cross reference material on Mr. Demma's trips. Concerning the other Scheel Enterprises' drivers, Mr. O'Malley reviewed the log violation report and falsification analysis. When he did not discover any discrepancies, Mr. O'Malley decided not compare their logs with satellite reports. He concluded Scheel Enterprises was following policies and regulations. (TR, page 151 to 153, and 192 to 193)

   A small percentage of the trucks in the Landstar Ranger system have satellite transponders. The system is hard wired to the truck's battery and records each hour whether the ignition is on or off. The system is leased from Qual Comm, located in California. The information is transferred from Qual Comm to Landstar Ranger by computer. In preparation for the hearing, Mr. O'Malley reviewed Mr. Demma's logs and compared the entries with the fuel card data and satellite information regarding the movement of Mr. Demma's truck. He concluded Mr. Demma's logs were accurate; there were no exceptions. According to Mr. O'Malley, "where he said he was, he was." Specifically, the satellite report for January 21/22, 1997 (RX 8) obtained from Mr.

gears on the truck. In the course of his business, Mr. Scheel has replaced a total of three truck clutches. (TR, pages 199 to 204, and 238)

    Due to a promotion sponsored by Landstar Ranger, Mr. Scheel personally installed the satellite tracking/communications equipment on three of his trucks, including number 29880. He believes all three systems functioned properly. To obtain the satellite information, Mr. Scheel would use a computer to go on-line with Landstar Ranger in Jacksonville. He could make an inquiry for each truck and obtain its location and whether the ignition was on or off. (TR, pages 204 to 207)

for a month; part of the damage was near a fuel line. Mr. Scheel believed the damage was consistent with someone backing the truck into a fixed object. As he was considering which truck to select for downsizing, he factored in this April accident; it was the "final straw." Mr. Scheel had begun to lose confidence in Mr. Demma. Eventually, after repair, the truck driven by Mr. Demma was sold on June 2, 1997. When Mr. Scheel sold the truck, the sales receipt (RX 14) contained an annotation that the transaction was an early trade-in for the 1998 tractor. Scheel Enterprises operated with only three trucks through the summer of 1997. During that time, Mr. Scheel did not hire another driver to replace Mr. Demma. Mr. Scheel eventually bought a new 1998 tractor truck. At the first of May 1997, when Mr. Demma left, he turned in his fuel card to Mr. Scheel who kept it in his desk. However, Landstar Ranger fuel card records show the card was being used in August 1997. (TR, pages 218 to 222, 224, 231 to 233, 240, 242, and 244)

RX 1. On October 23, 1997, Mr. Demma filed a complaint with the U.S. Department of Labor alleging he was terminated on May 2, 1997 by Mr. Scheel because he refused to operate a truck in violation of the hours of service regulations.

Louis Demma met the statutory time limitation requirements in filing his complaint, and (2) the subject matter of the complaint confers jurisdiction on the Office of Administrative Law Judges.

   The employee protection provision of the STAA, 49 U.S.C. §31105, prohibits the discriminatory treatment of employees who have engaged in certain activity related to commercial motor vehicle safety. First, under 49 U.S.C. §31105 (a) (1) (A), an employee is protected if he or she has filed a complaint or begun a proceeding related to a violation of a commercial motor vehicle safety regulation, standard, or order. The U.S. Department of Labor (DOL) interprets this provision to include internal complaints from an employee to an employer. DOL's interpretation that the statute includes internal complaints "is eminently reasonable." Clean Harbors Environmental Services, Inc. v. Herman ____F.3d____, No. 97-2083, 1998 WL 293060 (1st Cir. June 10, 1998)(case below 95-STA-34). The U.S. Circuit Court of Appeals also stated internal communications, particularly if oral, must be sufficient to give notice that a complain is being filed and thus that the activity is protected. There is a pont at which an employee's concerns and comments are too generalized and informal to constitute "complaints" that are "filed" with an employer within the meaning of the STAA. Id.

   There are two other types of activity protected under STAA. Title 49 U.S.C. §31105 (a) (1) (B) (i) provides protection for an employee who refuses to operate a vehicle in violation of any Federal rules, regulations, standard, or orders applicable to commercial vehicle safety or health. And, finally, 49 U.S.C. §31105 (a) (1) (B) (ii) protects an employee who refuses to operate a commercial motor vehicle which he or she reasonably believes would cause serious injury to the employee or the public due to its unsafe condition. The Secretary, through the Administrative Review Board (ARB), has determined that if an employee makes an objection regarding an unsafe condition and then actually drives the vehicle, the complaint should be more properly analyzed under the "complaint" provision of 31105 (a)(1)(A). Zurenda v. J & K Plumbing & Heating Co., Inc. 97-STA-16 (ARB, June 12, 1998). In addition, the complainant must prove that an actual violation of a regulation, standard, or order would have occurred if he or she actually operated the vehicle. Brunner v. Dunn's Tree Service, 94 STA 55 (Sec'y Aug. 4, 1995).

   In order to invoke the whistle blower provisions of the STAA, a complainant has the burden of proof in establishing the respondent took adverse employment action because the complainant engaged in one of the STAA's protected activities. The ARB, in Byrd v. Consolidated Motor Freight, 97-STA-9 @ 4-5 (ARB May 5, 1998), recently summarized the

burdens of proof and production in these cases:

    A complainant initially may show that a protected activity likely motivated the adverse action. Shannon v. Consolidated Freightways, Case No. 96- STA-15, Final Dec. and Ord., Apr. 15, 1998, slip op. At 5-6. A complainant meets this burden by proving (1) that he engaged in protected activity, (2) that the respondent was aware of the activity, (3) that he suffered adverse employment action, and (4) the existence of a "causal link" or nexus," e.g., that the adverse action followed the protected activity so closely in time as to justify an inference of retaliatory motive. Shannon, slip op. at 6; Kahn v. United States Sec'y of Labor, 64 F. 3d 261, 277 (7th Cir. 1995). A respondent may rebut this prima facie showing by producing evidence that the adverse action was motivated by a legitimate nondiscriminatory reason. The complainant must then prove that the proffered reason was not the true reason for the adverse action and that the protected activity was the reason for the action. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-508 (1993).

   The ARB in a footnote to the above paragraph provided further explanation on this last phase of the adjudication process:

    Although the "pretext" analysis permits a shifting of the burden of production, the ultimate burden of persuasion remains with the complainant, throughout the proceeding. Once a respondent produces evidence sufficient to rebut the "presumed" retaliation raised by the prima facie case, the inference "simply drops out of the picture," and "the trier of fact proceeds to decide the ultimate question." St. Mary' Honor Center, 509 U.S. at 510-511. See Carroll v. United States Dep't of Labor, 78 F. 3d 352, 356 (8th Cir. 1996) (whether the complainant previously established a prima facie case becomes irrelevant once the respondent has produced evidence of a legitimate nondiscriminatory reason for the adverse action).

   Concerning witness credibility, all factual findings, including credibility findings must be supported by substantial evidence in the record as a whole. NLRB v. Cutting, Inc. 791 F.2d 659, 667 (7th Cir. 1983). At the same time, the Secretary has observed that a lack of evidence to corroborate conflicting testimony on an issue, coupled with an inability to discern the truth through the demeanor of the witnesses, may lead to an inability to find a complainant's version of the facts more credible. In that case, there may be an insufficient basis for finding a prima facie case. Cook v. Kidimula International, Inc. 95 STA 44 (Sec'y Mar. 12, 1996).

   With these adjudication principles in mind, my first step is to determine whether Mr. Demma has proven he engaged in protected activities. During the hearing, Mr. Demma presented testimony regarding several actions which might be characterized as protected activities.

At the same time, the respondent provided contrary evidence that challenged the factual basis of these actions. As a result, I will have to weigh the evidence in the entire record, evaluate the credibility of the witnesses, and consider consistency of the testimony with other objective evidence that was presented.

   The evidence presented at the hearing raises the possibility that Mr. Demma was engaged in two types of STAA protected activities: (1) making a complaint about having to falsify the log entries and exceeding the hours of service, and (2) refusing to drive a truck in violation of safety standards by exceeding the hours of service limitation.

Making a complaint

   Mr. Demma testified that on several occasions, he complained to Mr. Scheel, his employer, about having to violate the hours of service standards and falsifying his driver's log. For evaluation purposes, I will separate these alleged complaints into two separate time periods, starting with the drive that originated in Garden City, California on January 20, 1997.

A. January 20 to January 22, 1997

   At this point of the analysis, I find Mrs. Demma's testimony has little probative value on this issue for two reasons. First, she provided no specific testimony on whether she actually heard Mr. Demma make a complaint to the Scheels. Her affirmation that the events occurred as Mr. Demma said they did is insufficient and lacks any detail to permit an assessment of whether she witnessed this crucial exchange. Second, in her testimony during cross examination, she essentially demonstrated an inability to specifically and independently recall the events of the January 21/22, 1997 trip.

   Because I have not given evidentiary weight to Mrs. Demma's testimony, there is a testimonial stand-off between Mr. Demma and Mr. Scheel. In light of their conflicting version of the facts in this case, I must make a credibility determination in weighing the witness testimony. In determining which witness is more credible, I first observe that both Mr. Demma and Mr Scheel appeared earnest during their testimony and I am not able to base a credibility determination on witness demeanor. Likewise, since the testimony of each party contained some minor internal inconsistencies, I was not able to assess credibility on that basis. As a result, I turn to other evidence presented at the hearing for corroboration of the testimony. In this case there are two other important items of evidence, each consistent with the other, that help me resolve the factual dispute: satellite data and Mr. Demma's log book.

   In resolving the conflict of testimony, the satellite history, if reliable, will provide important objective evidence. There was no evidence produced to impeach the integrity of the satellite system and its ability to track the location of vehicles carrying its transponders. Instead, the evidentiary issue concerning the satellite data involved the reliability of the satellite reports submitted as evidence. Respondent's counsel offered RX 8, a copy of the satellite location history obtained from Mr. Scheel , which showed that Mr. Demma truck sat at a location twenty-four miles east of Green River, Utah (Crescent Junction) from at least 21:36 hours on January 21, 1997 through 5:04 hours the next morning on January 22, 1997; certainly longer than the two hours claimed by Mr. Demma.

   After respondent counsel's presented RX 8, complainant's counsel offered CX 3, which is an original computer print out of Mr. Demma's truck locations from January 15, 1997 to January 22, 1997. In closing, complainant's counsel then attempted to impeach the satellite data that was adverse to his client's recollection of events by claiming RX 8 was fabricated. Referring first to RX 8, he pointed out there was a noticeable line after the 3:01 hour entry for January 22, 1997. Below that line, the next entry indicated 1:52 hours, January 22, 1997. Yet, on CX 3, the original computer print out, he noted there was no entry below the 3:01 hour entry for January 22, 1997. Instead, the next two entries above the 3:01 hour entry on CX 3 showed Mr. Demma's truck was stationary near Green River for only two hours. Based on his analysis, counsel asserted "What the original document shows is two hours of down time, waiting outside the Colorado border. Which is exactly what Mr. and Mrs. Demma told you about that January run from Garden Grove to Denver."

to permit his log to catch up with him since DOT was checking logs at the Utah/Colorado border. However, on that night, a transponder in Mr. Demma's truck was sending time and location information to a satellite orbiting overhead. That system placed Mr. Demma's truck at Crescent Junction starting at 21:36 hours (eastern) which is 7:36 p.m. (mountain time). The signal emitting from Mr. Demma's truck remained stationary for the next eight and a half hours at Crescent Junction through 5:04 hours (eastern), which is 3:04 a.m, mountain time, January 22, 1997.

   When the time, date, and location entries in Mr. Demma's log are compared with the satellite history, the consistency between the two separate histories of Mr. Demma's location on the night of January 21, 1997 is striking and compelling. Considering that these two sources of information were prepared independently from each other and because I consider the recorded satellite data the most reliable source of information on the location of Mr. Demma's truck the night of January 21 through the morning of January 22, 1997, I find that Mr. Demma spent eight and a half hours at Crescent Junction during that time and did not drive through the night to Denver. Consequently, I additionally find Mr. Demma's entries in his log book for that period, which are consistent with the satellite tracking information, were not false. Contrary to his assertion at the hearing, Mr. Demma did not falsify his driver's log that night.

credibility assessment that Mr. Demma is not a reliable witness. Consequently, I find Mr. Demma's testimony insufficient to establish that Mr. Scheel gave him a dispatch that would require violating the hours of service standards.

   For the reasons discussed above, the complaint of Mr. LOUIS DEMMA against LANDSTAR RANGER & SCHEEL ENTERPRISES, LTD. under Section 31105 of the Surface Transportation Assistance Act is DISMISSED.

       RICHARD T. STANSELL-GAMM
       Administrative Law Judge

NOTICE: This Recommended Decision and Order and the administrative file will be forwarded for review to the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Ave., Washington D.C. 20210. See 29 C.F.R. § 1978.109 (a); 61 Fed. Reg. 19978 and 19982 (1996).