This case arises under the employee protection provision of the Surface Transportation Assistance Act of 1982 (STAA or the Act), 49 U.S.C. app. § 2305 (1988), and the implementing regulations at 29 C.F.R. Part 1978 (1990). On June 10, 1991, the District Chief Administrative Law Judge (ALJ) issued a Recommended Decision and Order (R.D. and O.) dismissing Complainant'" claim that Respondent unlawfully discharged him from employment in violation of the STAA. The ALJ found that Complainant failed to prove either that he engaged in protected conduct or that his discharge was retaliatory, and concluded that Complainant failed to establish a prima facie case of discrimination under the STAA. Although the parties are permitted to file briefs in support of or in opposition to the ALJ's decision, see 29 C.F.R. § 1978.109(c)(2), no briefs have been filed before me.

    The entire record has been carefully reviewed and, with the elaborations discussed herein, I accept the ALJ's relevant factual findings. See 29 C.F.R. § 1978.109(c)(1). I also accept the ALJ's conclusion that the complaint must be denied, although as explained below, I do not

fully agree with the ALJ's analysis.

    On August 8, 1989, Respondent terminated Complainant from his job as a tractor-trailer relief driver. Just prior to the specific events giving rise to his discharge, Complainant was cited by the Department of Transportation (DOT) for violating its hours-of-service regulations at 49 C.F.R. Part 395 (1990). On July 26, 1989, DOT conducted a routine Compliance Review of Respondent's terminal in North Augusta, South Carolina, where Complainant was employed, and of the four violations reported by DOT, two involved Complainant. Respondent's Exhibit 1. He was cited for driving twelve and one-half hours without eight hours off, 49 C.F.R. § 395.3(a)(1), and for falsifying his driving logs to conceal violations of the hours-of service regulations, 49 C.F.R. § 395.8(e).

    Subsequently, Respondent provided classroom instruction on the DOT hours-of-service regulations and the proper completion of logs and paperwork to all personnel at the North Augusta terminal, including Complainant. Transcript (T.) at 7-8, 66. Also, on or about July 28, 1989, Complainant met individually with his supervisor and dispatcher, Michael Teffetelle-r, to discuss the problems revealed by the Compliance Review. Respondent's Exhibit 3.

    It is undisputed that upon receiving the additional instructions to make the Asheboro run, Complainant immediately and repeatedly complained to Teffeteller that the run could not be completed legally. T. at 13, 78. Complainant insisted that if he took eight hours off, he could not follow the schedule, and specifically, could not be on time for the 3:00 p.m. Greensboro pickup. It is also undisputed that in response to Complainant's concerns, Teffeteller insisted that the Asheboro run could be completed legally. T. at 52.

    On the evening of August 1, Complainant did not arrive in North Augusta from Savannah until 8:30 p.m. After refueling and changing trucks and trailers, Complainant departed North Augusta at 9:30 p.m. He made only one stop, at the 44 Truck Stop, and arrived at Asheboro at 6:15 a.m. on August 2. Complainant arrived in Greensboro at about 1:00 p.m. that afternoon. Upon returning to the North Augusta terminal, Complainant made numerous false entries in his logs, including an entry reflecting an eight-hour break from 12:00 midnight until 8:00 a.m. on August 2.

    Meanwhile, on the morning of August 2, Teffeteller had telephoned the first delivery stop in Asheboro to notify them that the relief driver, Complainant, would probably not be there at the usual 8:30 a.m. delivery time but would be late. He was informed that Complainant already had made the delivery two hours before. Teffeteller then brought the situation to the attention of Allen Opfar, who was the manager of the North Augusta terminal.

    On August 3, 1989, Teffeteller confronted Complainant and asked him to explain the discrepancies in his logs. Subsequently, Complainant and Teffeteller met with Opfar, and Complainant admitted falsifying his logs. Complainant insisted however, as before, that the run could not be completed legally. Opfar and Teffeteller disagreed with Complainant, and Opfar decided to discharge Complainant. Opfar maintains that Complainant was terminated for falsification of driving logs and company records.

    The ALJ correctly set forth the applicable burdens of proof and burdens of production in cases arising under

Section 2305 of the STAA. R.D. and O. at 5-6; see Newkirk v. Cypress Trucking Lines. Inc., Case No. 88-STA-17, Sec. Final Dec. and Order, Feb. 13, 1989, slip op. at 2-3; McGavock v. Elbar. Inc., Case No. 86STA-5, Sec. Final Dec. and Order, July 9, 1986, slip op. at 1011. Although I disagree with the ALJ's finding that Complainant failed to establish a prima facie case, I agree that Complainant's discharge was not in violation of the STAA.

    The ALJ identified Complainant's claim as one "not for refusing to operate his vehicle in violation of the hours of service regulations but for illegally operating it and for, subsequently, being required to falsify his driver's logs to conceal the violation." R.D. and O. at 6. The ALJ concluded that although Complainant voiced concerns to Teffeteller about whether he could drive the route legally, Complainant did not refuse to make the trip and, therefore, his activity was not protected under Section 2305(b) of the STAA. The ALJ stated, "[t]he Act applies solely to instances where a driver refuses to make an illegal run, not to situations where he knowingly drives in direct conflict with the hours of service regulations." R.D. and O. at 6-7.

letter dated October 31, 1990, from Fredric W. Deeley to Revco Warehouse. Both Teffeteller and Opfar acknowledged at the hearing that Complainant complained to them about whether the Asheboro assignment was legal, i.e., whether the schedule allowed enough time for the requisite eighthour layover under 49 C.F.R. § 395.3(a). In raising these safety complaints, Complainant engaged in protected conduct. See also Assistant Secretary and Moravec v. HO & M Transportation, Inc., Case No. 90-STA-44, Sec. Dec. and Order of Remand, July 11, 1991, slip op. at 3, 7-9. Further, in light of the temporal proximity between Complainant's protected conduct and his discharge, I find that Complainant has met the final criterion for establishing a prima facie case. See Newkirk, slip op. at 8.

    Nevertheless, I agree with the ALJ that Respondent had a legitimate business reason to discharge Complainant, i.e., he falsified his logs, and he has presented no persuasive evidence that Respondent's decision to discharge him was more likely motivated by retaliatory animus for his safety complaints.

    The apparent premise of Complainant's argument is that Respondent required him to violate the hours-of-service regulations in order to be on time for his 3:00 p.m. pickup in Greensboro, and then discharged him because he complained about having to falsify his logs to conceal the violation. The evidence does not support the argument.

    Accordingly, the complaint IS DENIED.

    SO ORDERED

       LYNN MARTIN
       Secretary of Labor

Washington, D.C.