DATE:  July 25, 1994

CASE NO. 92-STA-38

In the Matter of

RONALD J. CLARIN,
     Complainant

          v.

KELLER SPECIALIZED TRANSPORT, INC.,
     Respondent

RECOMMENDED DECISION AND ORDER

     The facts in this case are not in dispute.  At the hearing
the Respondent admitted the factual allegation in paragraphs 1-4
of the complaint in this proceeding.  The facts conceded are:  
1.   (a) Respondent, Keller Specialized Transport, Inc., is
engaged in interstate trucking operations and maintains a place
of business in Richfield, Ohio.  In the regular course of this
business, respondent's employees operate commercial motor
vehicles in interstate commerce principally to transport cargo.
     (b) Respondent is now, and, at all times material herein,
has been a person as defined in Section 401(4) of the Act (49
U.S.C. 2301(4)).
2.   (a) On or about February 25, 1992, Keller Specialized
Transport, Inc., hired complainant, Ronald J. Clarin, as a driver
of a commercial motor vehicle, to wit a tractor-trailer with a
gross vehicle weight rating in excess of 10,000 pounds.
     (b) At all times material herein, Ronald J. Clarin was an
employee in that he was a driver of a commercial motor vehicle
having a gross vehicle rating of 10,000 or more pounds used on
the highways in interstate commerce to transport cargo and in
that he was employed by a commercial motor carrier and, in the
course of his employment, directly affected commercial motor
vehicle safety (49 U.S.C. 2301(2)(A)).
[PAGE 2]
3.   (a) On or about March 2, 1992, complainant filed a complaint
with the Secretary of Labor alleging that respondent had
discriminated against him in violation of Section 405 of the Act
(49 U.S.C. 2305).  This complaint was timely filed.
     (b) The Secretary, acting through her duly authorized
agents, thereafter investigated the above complaint in accordance
with Section 405(c)(2)(A), (49 U.S.C. 2305(c)(2)(A)), and has
determined that there is reasonable cause to believe that the
respondent has violated Section 405(b) of STAA.
4.   On or about March 2, 1992, respondent notified Ronald J.
Clarin that he was discharged from employment as of that date,
principally because he refused to take a dispatch to Baltimore,
Maryland on February 29, 1992.  On February 29, 1992, Mr. Clarin
reported to work for dispatch to Baltimore, Maryland and upon
fueling his vehicle, he discovered the fuel tank leaked fuel,
which he reported to respondent.  When Mr. Clarin refused to
drive the truck to Baltimore, Maryland, he was told to go home. 
On March 2, 1992, Mr. Clarin was informed of his discharge.  Mr.
Clarin's refusal to operate his vehicle in contravention of a
federal regulation applicable to commercial motor vehicle safety
(49 CFR 393.67 and 396.13) is activity protected by Section 405
of the STAA.  Consequently, respondent's discharge of Mr. Clarin
for his engaging in activity protected under STAA constitutes a
violation of Section 405(b) of STAA.
     The only dispute concerns the amount of the award of back
pay, if any, that is due to the complainant.  The respondent
argues that the Claimant should only be paid for the days he was
scheduled to take at the time he was dismissed.  They claim that
there is no guarantee the Claimant would have continued
employment after that date and there is no method for calculating
the number or type of runs the Claimant would have been assigned. 
They make no argument about the Claimant's failure to look for
work after dismissal.
     The Assistant Secretary of Labor countered with the argument
that there is sufficient evidence to compute a wage figure for
the Complainant.  The calculation is based on the amount that
would have been earned had the Complainant not refused to make a
scheduled trip.  A copy of the calculation is attached to this
decision.
[PAGE 3]
     One purpose of the law and regulation is to relieve the
Complainant of the financial loss that resulted from the illegal
action.  The only manner to accomplish this in the present case
is through the award of back pay for the period the Claimant
remained unemployed.  The entire period is compensable because
the Employer has failed to sustain its burden showing the
Claimant was not looking for work during the period.
                     RECOMMENDED ORDER
     Complainant's backpay is to be calculated from March 2, 1992
to April 2, 1992, when he found new employment.  Backpay is to be
calculated and paid at .22 cents per mile based on the averaged
mileage paid to respondent's over the road drivers during the
backpay period, plus 9.0 percent interest per annum on the entire
amount owed.

                              GERALD M. TIERNEY
                              Administrative Law Judge