DATE:      OCTOBER 18, 1994

CASE NO.:  94-STA-00042


In the Matter of 

RICHARD PEACOCK
          Complainant

     v.

TRIAD TRANS, INC.
          Respondent


Appearances:

Richard Peacock
          Pro se

Clifford Willey          
          For Respondent

Before:   Robert D. Kaplan
          Administrative Law Judge


                      RECOMMENDED DECISION AND ORDER        

     This proceeding arises under Section 405 of the Surface
Transportation Assistance Act of 1982 (the Act), 49 U.S.C.
§2305, and its implementing regulations, 29 C.F.R. Part
1978, based on a complaint filed with the Secretary of Labor
alleging that Respon-dent Triad Trans, Inc. discharged Complainant
Richard Peacock in violation of the Act.
I.   Procedural Background
     The complaint was filed on or about February 25, 1994 (ALJ
1)[1]  and was investigated by the Occupational Safety and Health
Admini-
[PAGE 2]
stration (OSHA) on behalf of the Secretary of Labor.  After the
investigation, on July 14, 1994, the OSHA Acting Regional Admini-
strator issued Secretary's Findings in which the complaint was
found to be without merit and was dismissed. (C 1)
     On or about August 3, 1994 Complainant filed a timely objec-
tion and request for a hearing on the record. (ALJ 2)  On August
16, 1994 I issued a Notice of Hearing scheduling the hearing for
August 31, 1994.  
II.  Contentions of the Parties
     Complainant alleges that on February 10, 1994 Respondent
discharged him from his job as a tractor-trailer driver because he
had complained about being assigned driving work which required him
to violate the United States Department of Transportation (DOT)
regulation prohibiting driving more than 10 hours following 8
consecutive hours off duty. 49 C.F.R. §395.3(a)(1).[2] 
     Respondent denies that it discharged Complainant for the
reason stated by Complainant.  Rather, Respondent states, Complain-
ant was fired primarily because he parked the trailer at an
unauthorized location and, without authorization from Respondent,
drove the tractor to his home.  Respondent states it also was
dissatisfied with Complainant's failure to call in to the dis-
patcher regularly. 
III. Issues
     1.   Whether Respondent discharged Complainant in violation of
the Act.

     2.   If so, what is the appropriate remedy.

IV.  Findings of Fact and Conclusions of Law 
   Complainant was hired as a truck driver by Respondent's
presi-dent, Clifford Willey (Willey), on May 17, 1993. 
Complainant's usual work for Respondent involved driving a tractor-
trailer and picking up Kraft Company cheese products at its
location in Canton, New York and delivering the products to
warehouses in Sodus, New York and North Rose, New York, a trip of
approximately 150 miles.  After the product was unloaded at the
warehouses Complainant drove the empty trailer back to Canton.  On
one-trip days Complainant's work for the day was completed when he
dropped off the empty 
[PAGE 3]
trailer in Canton.
     On alternating days Complainant was required to make two
round-trips between Canton and the warehouses, which involved a
total of about 600 miles of driving.[3]   Complainant stated that
Respondent required that the two round-trips be completed in one
day.  Complainant testified that it was not possible to complete
two round-trips without driving more than 10 hours.
     Complainant testified that Willey was well aware of the fact
that two round-trips could not be completed without exceeding the
10 hours of driving maximum restriction in the DOT regulation. 
Indeed, Complainant testified that on three to five occasions he
had brought this to Willey's attention and complained about it and
told Willey he had to falsify his driving logs in order to show he
was not in violation of the regulation.   Complainant stated that
he told Willey that the two trips required about 12 hours of driv-
ing.  Complainant testified that, in response to his complaints,

          [Willey] told me it was going to be done the way he
          scheduled it and that's the way it was.  Other
          times [Willey said] these trucks will run whether
          you're driving them or not.

Complainant testified he "took that to mean [he] ... would be
fired" if he failed to complete the two round-trips without
stopping and going off-duty for 8 hours. (TR 49-50)      
     Complainant testified that on February 10, 1994 Willey told
Complainant he was being discharged because he had parked overnight
in Turner's truck stop in DeKalb, New York, about 15 miles from
Complainant's home (rather than at the Kraft site in Canton),
without authorization, and he had not called each day as required. 
Complainant believed that the true reason Willey fired him was that
he had complained about the violations of the DOT regulation. 
Complainant testified that Willey's "excuse [for the discharge] ...
didn't hold water, made no sense...."  Complainant explained that
he had called in every day but one, and that no one complained
about his usual practice of calling in between 2:00 and 4:00 P.M. 
Complainant also testified that "sometime back" he had been given
permission by Willey to park at Turner's truck stop.  Complainant
also testified that other drivers had been given permission to park
at locations other than the Kraft location in Canton. (TR 12-21)
     Willey testified that Complainant was fired because he had
both parked the trailer[4]  at Turner's instead of at Canton
without approval and had driven the truck to his home without
approval.  
[PAGE 4]
Willey indicated that Complainant had made a practice of doing
this, and it had been discovered indirectly by Respondent.  Willey
testified that an additional reason for the discharge was Complain-
ant's failure to call in as he had been directed to do. (TR 33-36) 
Willey later testified that on the day Complainant was fired he had
not called in at all.  Further, Willey stated that it is true that
Complainant had been given permission to park at Turner's on a
single occasion, but that thereafter Complainant did it without
notice and permission. (TR 96, 99-100)
     Willey testified that he had no recollection of having any
conversations with Complainant in which the latter said he had to
falsify his logs because of the violations required by Respondent's
policy.  Willey testified that, on the contrary, he told Complain-
ant if he ran into a problem with completing the two round-trips
within 10 hours, he should stop at the truck stop in Mexico, New
York, and "log his time off there."  Willey conceded that it was
"very tight" to complete the two round-trips in 10 hours.  However,
he stated that the other drivers regularly slept in the truck so as
not to violate the 10-hour regulation, while Complainant chose to
go home instead even it meant that he exceeded the 10-hour limit,
or to get home by stopping at Turner's and driving the tractor home
without approval. (TR 112-16)
     Complainant denied Willey's statement that he had not called
in on the day he was discharged.  However, Complainant conceded
that he had upset the dispatcher several days before the discharge
because he had not called in until late in the day, between 4:00
and 5:00 P.M. (TR 104-105)  Complainant also stated that other
drivers falsified their logs to avoid revealing violations of the
DOT regulations.  However, Complainant was able to provide no
evidence that Respondent was aware of this alleged conduct.  In
addition,  Complainant did not deny he had received permission to
park at Turner's on only one occasion and that thereafter he had
taken it upon himself to park the trailer there and use the tractor
to drive home.  Complainant admitted that Respondent had not known
he was using the tractor to drive home. (TR 68-75)
     Complainant also conceded that Willey had told him to park and
log off in Mexico if he found he was running out of driving time.
(TR 117-18)  But Complainant stated that Respondent wanted the
tractor-trailer to be picked up at Canton as early as 3:00 A.M. and
he implied it was impossible to do this if the driver took an
eight-hour layover before arriving in Canton. (TR 55, 84)  However,
the sample log provided by Complainant to demonstrate the "legal"
way to perform the two round-trip schedule shows an 8-hour sleep in
Mexico from 4:00 P.M. to midnight.  Complainant's sample log states
[PAGE 5]
that the trip from North Rose to Mexico took one hour and completed
one-third of the return trip to Canton. (C 1)  Thus, the trip from
Mexico to Canton would have begun at midnight and taken about two
hours.  Therefore the arrival at Canton would have been completed
well before the 3:00 A.M. pick-up time.
     Subsequently, Willey testified that Scott Canaan, the driver
who handled the Kraft products on an alternating schedule with
Complainant, frequently stopped over in Mexico to avoid violating
the 10-hour rule.  Of course, when Canaan did this he did not
complete the two round-trip driving in a single day.  Nevertheless,
Respondent took no action against Canaan and he was permitted to 
continue to work for Respondent until August 1994 when it lost the
Kraft hauling work.  Complainant testified that it was "absolutely
false" that Canaan would regularly sleep in the truck. (TR 124-25)
Respondent was permitted to submit Canaan's driving logs for the
last six months, from February to August 1994, after the hearing
(R 1).[5]   Canaan's logs state that he stayed over in Mexico for
eight hours on at least 19 times during this time period. (R 1)  
     In a post-hearing statement to me Complainant wrote that he
had contacted Canaan and that Canaan told Complainant he had filed
false logs showing he had stayed over in Mexico, but Canaan was
afraid to come forth and say so.  Without probative evidence of
such an allegation it is not appropriate for me to give it any
weight.  Furthermore, even assuming it had been proved that Canaan
falsified his logs, the record contains no evidence that Respondent
was aware of it. 
     In sum, Complainant's complaint is based on the argument that
Respondent's statements that the trucks would roll with or without
him supports a finding that if he had interrupted his two round-
trip days by logging off duty he would have been fired.  However,
there is no direct credible evidence that Respondent was opposed to
such an interruption of driving.  Rather, Canaan's logs together
with his continued employment by Respondent constitute contrary
evidence.  In addition, the probative evidence indicates that
Respondent had at least several legitimate reasons for discharging
Complainant: Complainant's unauthorized parking of the trailer at
Turner's and his unauthorized use of the tractor to drive home.   
     The Administrative Procedure Act, §7(c), 5 U.S.C
§556(d), requires that Complainant prove by a preponderance of
the evidence his allegation that his discharge was in violation of
Section 405 of the Surface Transportation Assistance Act.  There is
no question that the complaint in this case would have to be found
meritorious if Complainant had established by probative evidence
that (1) 
[PAGE 6]
Respondent had a policy that the two-trip schedule was required to
be completed without an 8-hour break in driving even if it took
more than 10 hours, and (2) Complainant was fired because he
complained about the policy. See Trans Fleet Enterprises,
Inc. v. Boone, 987 F.2d 1000 (4th Cir. 1992).  However, based
on my review and analysis of the evidence in the record I find that
Complainant has failed to present evidence which satisfies his
burden of proof with respect to either of these two elements. 
Consequently, I find that the complaint should be dismissed.
                                   ORDER
     The complaint of Richard Peacock under Section 405 of the
Surface Transportation Assistance Act is DISMISSED.


NOTICE:  This recommended Decision and Order and the
administrative file in this matter will be forwarded for review by
the Secretary of Labor to the Office of Administrative Appeals,
U.S. Department of Labor, Room S-4309, Frances Perkins Building,
200 Constitution Ave. NW, Washington, DC  20210.  The Office of
Administrative Appeals has the responsibility to advise and assist
the Secretary in the preparation and issuance of final decisions in
employee protection cases adjudicated under the regulations at 29
C.F.R. Parts 24 and 1978.  See 55 Fed. Reg. 13250 (1990).


[ENDNOTES]

[1]   The following abbreviations are used herein:  "ALJ" denotes
Administrative Law Judge's exhibit; "C" denotes Claimant's
exhibit; "R" denotes Respondent's exhibit; "TR" denotes the
transcript of the hearing on August 31, 1994.

[2]   49 C.F.R. §395.3(a)(1) states -

          ...no motor carrier shall permit or require any driver
          used by it to drive nor shall any such driver drive:

               (1) More than 10 hours following 8 consecutive
                     hours off duty....



[3]   At one point Complainant testified that two round-trips
total about 500 miles. (TR 56)

[4]   The hearing transcript erroneously states that my question
to Willey was that Complainant "borrowed the trailer."  The
correct language is that he "dropped the trailer."  The
transcript at p. 35, line 10, is herewith corrected to that
effect. 

[5]   I herewith receive R 1 in evidence.