[Editor's note:  This version of the decision includes
corrections made by a March 20, 1995 errata]

Date:  March 6, 1995

...............................
                                :
JOHN DEAN,                 :
       Complainant,             :
                                :    Case No. 94-STA-37
            v.                  :
                                :
TRIAD TRANSPORTATION,      :
       Respondent.              :
                                :
...............................

Mr. Kevin Sullivan, Esq.
                 For the Complainant

Mr. Morris Karll, Esq.
                 For the Respondent

Before:     ROBERT G. MAHONY
            Administrative Law Judge


RECOMMENDED DECISION AND ORDER

       This proceeding arises under the employee protection
provision of the Surface Transportation Assistance Act, 49 U.S.C.
§ 31105 (1994) ("STAA"), and the applicable regulations at 29
C.F.R. Part 1978.  A hearing was held in Boston, Massachusetts on
September 23, 1994, at which time the parties were given an
opportunity to adduce testimony, offer documentary evidence, and
present oral argument.
STATEMENT OF THE CASE 
       The Complainant, John Dean, began working for Respondent,
Triad Transportation, as a trainee in December of 1988, and after
two months he was hired as a regular truck driver.  Mr. Dean
alleges that Respondent fired him because he refused to violate the
Department of Transportation's regulation prohibiting drivers from
driving when they have "been on duty 70 hours in any period of 8
consecutive days if the employing motor carrier operates motor
vehicles every day of the week." 49 C.F.R. § 395.3(b)(2)
(1992).  He seeks back pay, calculated from the time of his
discharge up to and including the time when he either finds new
employment or 
[PAGE 2]
refuses reinstatement with Respondent.  To date, Mr. Dean asserts
that Respondent has refused reinstatement, and the parties
stipulate that his average weekly wage should be computed at
$541.38/week.  
       Respondent agrees that Complainant's last trip was cut short
because he had reached the seventy hour limit, but denies that
Complainant violated the limit or was asked to violate the limit. 
Respondent contends that Mr. Dean, who was an at-will employee, was
discharged because he failed to perform duties required of drivers. 
Respondent contends that Dean had a practice of loading a truck,
failing to tell the dispatcher that he was out of hours, and
refusing to deliver the load.  Respondent had problems with Mr.
Dean failing to send in paper work.  There were complaints about
Mr. Dean's appearance, and Mr. Dean failed to call in twice a day
as the company required. 
SUMMARY OF THE EVIDENCE
       Mr. Dean testified about the events leading to his
discharge on December 17, 1993.  He began a trip in North Rose, New
York on December 8, 1993 and ended in Fultonville, N.Y. on December
16, 1993.  During this trip, he made stops to pick up or drop off
loads in Springfield, Missouri; Allentown, Pennsylvania; Brooklyn,
New York; Foxboro, Massachusetts; Southboro, Massachusetts; Albany,
New York and Syracuse, New York.  When he was in Albany, Dean
testified that the dispatcher, Michael Morrison gave him an
assignment to pick up a load at 7:30 A.M. in Syracuse, N.Y. and
deliver that night at midnight in Portland, Maine.  Dean testified
that he told Morrison that he could not cover this, and Morrison's
response was "you'll have to do the best you can."  Dean testified
that he did not respond to this.  The following day, he drove to
Syracuse, N.Y., slept a few hours and began loading at 7:30 A.M. 
Dean interpreted "do the best you can" to mean that there was no
one available to cover the load, and Morrison did not want to call
the truck broker involved in the load and tell him that he could
not cover the load, because this might have caused a problem with
a client.  
       At 10:00 A.M., Dean testified that he called Morrison and told
him about two thirds of the load was on the truck.  When Morrison
said the load delivers at midnight, Dean testified that he said "I
told you I could not cover the load."  Then, according to Dean's
testimony, Morrison said to finish loading the truck, but not go 
[PAGE 3]
anywhere, because he would see if he could get someone else to take
the load.  When he finished loading the truck, Dean went to the
truck stop in Syracuse because there was no on site parking at
United Refrigeration.  
       When Dean called Morrison at 1:30 P.M., he had not found
anyone to take the load, and Dean testified that Morrison was
belligerent.  Dean hung up on him, but called Morrison again at
4:30 P.M., and told him he would be at exit 28 on the New York
Thruway, Fultonville, N.Y, which was as far as he could legally go. 
According to Dean's testimony, Morrison then said he was going to
give Claimant a lot of freight that he would have to lug, which
meant that Claimant's back was going to see a lot of work, and he
would also see a drop in his income.  Dean left Syracuse at 12:15
or 12:30 A.M. on December 16, and arrived in Fultonville at 2:45
A.M.  When Dean called Morrison that morning at 9:00 or 9:30 to
tell him he was in Fultonville, Dean testified that Morrison asked
him if he would like to be charged $200/day for every day the truck
was late.  Dean responded by telling Morrison that he knew his way
to the labor board.  Dean testified that during that conversation
with Morrison, he was asked for the first time in the history of
his employment with Triad Transportation about his available hours. 
       That afternoon, Clifford Willey, the president of Triad
Transportation, drove six hours to bring a replacement driver,
Francis Perrault, to Fultonville, New York, and brought Mr. Dean
back to the terminal.  Dean testified that there was no discussion
in the car ride back to the terminal.  The following morning, Dean
met with Clifford Willey in his office in Salisbury, Massachusetts. 
After he turned in his paperwork, Dean testified that Willey said
"I cannot have you messing with the freight and I think it's time
we ended our relationship."  According to Claimant's testimony, he
told Willey that he had told Morrison when he was dispatched on the
14th of December that he could not cover the load, and Willey
responded saying Morrison never said anything about that.  The
parties agree that Claimant was on duty for seventy hours from
December 9, 1993 until December 16, 1993, and Mr. Dean's daily
logs, admitted as Claimant's Exhibit 3, verify this. 
       A note written by Clifford Willey and dated December 17, 1993,
which was admitted as Complainant's Exhibit 1, reads "John was let
go because of a refusal to deliver load - he did not tell Mike that
he was out of hours on his log."  
       Clifford Willey testified at the hearing on September 23,
1994.  He has been involved with Triad Transportation for seven 
[PAGE 4]
years, and his position entails hiring, firing, and dealing with
insurance, permitting, and some operations.  When his partner,
Donald Willey, is not around, he gets involved with overseeing the
flow of the business, including dispatch, billing and making sure
everything is moving along.  
       Willey testified that he was the person who authorized the
termination of Complainant, and he did it because Complainant put
a load of freight on without saying that he was out of hours, and
without indicating that there was a problem.  He agreed that if
Complainant were to continue driving he would have been in
violation of the federal regulations, but contends that he was not
asked to drive.  Willey testified that he told the OSHA
investigator that Mr. Dean was terminated because he could not
complete a load.  Dean had told Clifford Willey that he had
notified the dispatcher in advance that he was out of hours.  Mr.
Willey testified that no driver has ever communicated to him a
concern about being given dispatches that he could not complete
legally.  Willey testified that he did not think he ever addressed
to Dean in a formal manner that his performance was lacking,
although he jotted down some handwritten notes for his file, and
they talked several times.  It was not part of the company's policy
that any problems with a driver had to be in writing, but Mr.
Willey testified that if there was a serious problem with a
driver's performance, it would be in writing.  Willey denied that
when he brought Perrault to Fultonville, N.Y. he said one of them
would have to take the load.  He testified that he said Perrault
was taking the load, and when Dean said he wanted to go with him,
he said no.  Willey brought Dean back to the terminal and told him
to come in the next morning.  The next morning, he told Mr. Dean
that he was being let go for putting a load of freight on the truck
without telling the dispatcher he was out of hours.  
       Clifford Willey identified two other reasons he had for
discharging Dean.  First, he testified that through the years there
were varying degrees of problems with Dean's paper work, severe at
times.  Instead of sending in his paperwork when he finished a
load, Dean would wait until he was physically in the office to
deliver it.  Second, he testified that Complainant was trying in a
sense to dictate policy.  He would hang around the office and find
out what was going on, and he would try to dictate what gets done,
how the rest of the workers were doing, or whether their equipment
was running properly.  In Willey's opinion, this was none of Dean's
business.  Willey testified that there were a few other times when
Claimant put loads on and said he did not know if he could make it
or not.  He was told he should not put freight on if he could not
make the trip.[1] 
[PAGE 5]
       Mr. Donald Willey, Clifford Willey's uncle and partner, also
testified at the hearing.  He testified that he had lengthy
conversations with Mr. Dean about paperwork and reports that were
due as a truck driver, and he thought he spoke to Mr. Dean a couple
of times about cutting his hair.  He testified that driver's logs
had to be accurate, and he should know how to fill them out.  He
talked to his nephew, Clifford Willey, about Mr. Dean not complying
with the company rules, and about discharging him.  He did not feel
that Mr. Dean was an asset to the company, and felt that he had
gone down hill.  
       Michael Morrison, the dispatcher at Triad Transportation,
coordinates the driver's schedules and the shipment schedules. 
Morrison testified that Dean was pretty good about calling in the
morning and in the afternoon.  He usually asks drivers if they can
do the trip, and he recalls Complainant telling him he was going to
be out of hours shortly.  Morrison testified that he should have
completed the trip in seventy hours, but as a driver for six years,
he said you cannot anticipate delays.  Dean did not tell him about
any delays.  Morrison did not recall receiving a report from
Claimant that in North Rose, N.Y. there was an elevator that was
out of order and caused a five and one half hour delay.  He
estimated that the trip was 3,000 miles.  He believed that there
should not have been any problem completing the trip within seventy
hours.[2] 
       Francis E. Perrault, the former employee of Triad
Transportation who replaced Mr. Dean on December 16, 1993,
testified that it was his weekend off when he was contacted by
Morrison to accompany Clifford Willey to Fultonville, N.Y. on
December 16, 1993.  Perrault thought he remembered Willey asking
Dean if he would drive the load, and Dean was not going to take it
because he was out of hours.  Perrault drove the load from
Fultonville, N.Y. to Portland, Maine which he testified was at
least an eight hour trip without delays.   His arrival in Portland,
Maine was delayed by three hours because the truck was leaking
fuel.
DISCUSSION
       Section 405 of the Surface Transportation Assistance Act,
49 U.S.C. § 31105 (1994), prohibits a person from discharging
an employee who refuses to operate a vehicle because "the operation
violates a regulation, standard, or order of the United States
related to commercial motor vehicle safety. . . ."  To prevail on 
[PAGE 6]
an STAA complaint, Complainant must establish that the Respondent
took adverse employment action against him because he engaged in an
activity protected under Section 405.  First, Complainant may
establish a prima facie case by showing that "he engaged in
protected activity [under the STAA], that he was subject to adverse
employment action, and that the employer was aware of his protected
activity when it took the adverse action, raising the inference
that the protected activity was the likely reason for the adverse
action." Obsorn v. Cavalier Homes of Alabama, Inc. and Morgan
Drive Away, Inc., 89-STA-10, at *3 (Sec'y July 17,
1991).  In this case, Mr. Dean has established his protected
activity, that on December 16, 1993 he refused to drive beyond the
seventy hour limit imposed by the Department of Transportation's
regulation at 49 C.F.R. §395.3(b)(2)(1992).  He also
demonstrated that he was the subject of an adverse employment
action when he was fired on December 17, 1993.  Mr. Dean's
testimony, the testimony of Triad Transportation's president,
Clifford Willey, and the testimony of the dispatcher, Michael
Morrison, all support a finding that Respondent knew Mr. Dean was
refusing to violate Department of Transportation regulation.  I
therefore find that Mr. Dean has established a prima facie
case.
       To rebut Complainant's prima facie case, Respondent
must produce evidence that the adverse action was motivated by a
legitimate, nondiscriminatory reason.  Respondent "need not
persuade the court that it was actually motivated by the proffered
reasons," but the evidence must be sufficient to raise a genuine
issue of fact as to whether Respondent discriminated against
Complainant. See Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 254-55 (1981).  Respondent argues that 
Dean's appearance, his requests for a pay raise and paid vacation,
his refusal to mail in his paper work after making deliveries, his
failure to call in two times a day, and his loading the truck on
three or four different occasions knowing he did not have enough
hours to finish the trip were the reasons for firing Mr. Dean on
December 17, 1993.  
       If these were bona fide reasons to terminate Dean, it, would
have occurred long before it did.  Dean had a satisfactory work
record and, I find that the proffered reasons for terminating
Complainant are pretextual and not sufficient to raise a genuine
issue of fact as to non-discrimination.  
       I credit Mr. Clifford Willey's note dated December 17, 1993,
the proximity in time between Complainant's refusal to deliver the
load and his discharge, and Complainant's testimony at the hearing
in finding that Respondent was motivated to discharge Complainant 
[PAGE 7]
by his refusal to violate the seventy hour limit to deliver the
load.  I conclude that Complainant's termination was a
discriminatory act by Respondent in violation of the STAA. 
RECOMMENDED ORDER
       It is hereby recommended that Triad Transportation be
found in violation of the STAA and that Complainant, John Dean, be
awarded back pay at the rate of $541.38 per week up to and
including the time he is reinstated or is made a bona fide offer of
reinstatement.  Pre-judgment interest shall be computed in
accordance with 26 U.S.C. § 6621 (1988).

                      
                                           ROBERT G. MAHONY
                                          Administrative Law Judge


Washington,D.C.



[ENDNOTES]
                 
[1]  A letter dated September 10, 1993 was written by Clifford
Willey to Dean.  The reviewed a conversation held on August 27th
in which Mr. Willey complimented Mr. Dean's excellent record of
job performance with regard to on-time pick up an delivery, lack
of unnecessary freight damage or claims, greatly improved
compliance with the paperwork procedures, and exhibited concern
for the maintenance and care of his vehicle.  Areas of concern
which Mr. Willey had pointed out to the Claimant were his
appearance, unnecessary personal use of the company photocopier,
and unsolicited and unnecessary comments relative to other areas
of company operations and procedures.  Mr. Willey wrote that all
in all Complainant had done a good job over the past years.  He
hoped that the relationship would continue, but wrote that
"[Complainant] will be expected to meet certain standards, or
[his] place in [the company's] future could be limited."  He
asked that Complainant agree to meet the company's expectations,
and requested that Claimant let him know what his decision is in
writing by September 17, 1993. 

[2]   However, Dean testified that he could not have completed
the trip in seventy hours because it was too many miles.  He
testified that the trip which had to be completed in eight days
was 3,600 miles based on odometer readings.  He testified that
Morrison's assertion that the trip was 3,000 miles is based on a
computer.