DATE:  February 13, 1992
CASE NO. 91-STA-24



IN THE MATTER OF

ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH,

          PROSECUTING PARTY,

     AND

ROBERT GUERNSEY,

          COMPLAINANT,

     v.

J.E. NELSON TRANSPORTATION
AND JERRY E. NELSON,

          RESPONDENTS.


BEFORE:  THE SECRETARY OF LABOR


                       DECISION AND ORDER OF REMAND
      This proceeding arises under the employee protection
provision of the Surface Transportation Assistance Act of 1982
(STAA), 49 U.S.C. app. § 2305 (1988), and is before me for
review of the [Recommended] Decision and Order Dismissing
Complaint (R. D. and O.) issued by the Administrative Law Judge
(ALJ) on October 21, 1991.  See 29 C.F.R. § 1978.109(a)
(1991).
     On August 20, 1990, Jerry E. Nelson, a subcontractor for the
United States Postal Service (USPS), terminated Robert Guernsey
from his job as a tractor-trailer driver hauling the mail. [1]  
Guernsey alleges that he was fired because he complained to
Nelson and postal authorities about defects in Nelson's trucks. 
Nelson contends that Guernsey was laid-off solely for economic 
[PAGE 2]
reasons.
     An evidentiary hearing was held, and the ALJ concluded that
Guernsey failed to present a prima facie case of retaliatory
discharge.  He determined that although Guernsey engaged in
protected conduct of which Nelson was aware, and suffered an
adverse action, Guernsey failed to establish any causal link
between his protected activity and the adverse employment action. 
Alternatively, the ALJ ruled that even if he were to accept that
Guernsey's discharge was motivated in part by his protected
activity, Nelson proved that he was "at the very least
substantially motivated" by the legitimate reason proffered,
while Guernsey failed to present any evidence that Nelson's
reason was merely a pretext for discrimination.
     As permitted by the regulations, 29 C.F.R. §
1978.109(c)(2), the Assistant Secretary of Labor for Occupational
Safety and Health (Assistant Secretary) has filed a brief before
me urging that I reverse the ALJ's dismissal.  The Assistant
Secretary contends that there is both circumstantial and direct
evidence of a causal connection between Guernsey's protected
activity and his discharge, and on the basis of the direct
evidence, maintains that this is a dual motive case and that
Nelson failed to meet his burden on this issue.  
     Although Nelson did not file a response to the ALJ's
decision, he filed a post-hearing statement of his arguments
before the ALJ (H.S.), which I have considered in reaching my
decision. [2]   In summary, Nelson challenges Guernsey's
credibility and contends that Guernsey failed to substantiate his
case. 
     Upon consideration, I conclude that the ALJ erred in his
analysis that Guernsey failed to establish a prima facie case and
also his conclusion that Nelson would meet his burden under a
dual motive analysis.  Consequently, I cannot uphold his
decision, and I remand for reconsideration of all the relevant
evidence. [3]   
                             BACKGROUND
     Guernsey was hired in April 1990.  Transcript (T.) at 8. 
The parties dispute whether Guernsey was hired by Nelson or by
LBJ Grocery, a store owned by Nelson's wife and within which,
Nelson's business office was located.  Both Nelson and LBJ
Grocery had mail hauling contracts with the USPS.  Nelson's route
was called the "northern HASP run" while LBJ Grocery's route was
known as the "Montpelier route."  Usually, an International 4070
cabover "single screw" truck was driven on the Montpelier route,
and a "twin screw" truck was driven on the HASP run. [4]  
See T. at 20, 35.
     Guernsey claims that he was hired by Nelson, but that in the
beginning, he primarily drove the single screw truck on the 
[PAGE 3]
Montpelier route.  T. at 9, 19-20, 22.  He further claims,
however, that he drove the twin screw on the HASP run on April 28
and that he would make that run whenever Wayne Godfrey could not. 
T. at 37.  He began making the northern HASP run regularly, and
driving the twin screw truck, around the middle of July.  T. at
73, 19, 26, 35.  On the northern HASP run, Guernsey would depart
the post office in White River Junction, Vermont, at 10:30 p.m.,
drive to the post office at Manchester, New Hampshire, for
loading and unloading, and then head to the post office in
Westborough, Massachusetts. [5]   He would leave Westborough,
proceed back to Manchester, and eventually return to White River
Junction around 6:30 a.m.
     Guernsey testified that both trucks were in "very shabby"
shape.  T. at 20.  Guernsey maintains that he frequently
complained to Nelson by telephone about, for example, faulty
walking beams, cab mounts, tires, springs, lack of inspection
stickers, and about the all-around condition of the trucks. 
See T. at 41, 39, 33.    
     Guernsey also testified that around the middle of July, he
heard that Nelson had become annoyed by his complaints and was
"just looking for a reason to fire [him]."  T. at 41.  Alan Bean,
a driver for another mail haul contractor, testified that about
four weeks before Guernsey's termination [which would have been
about the middle of July], Nelson approached him and "was saying
how Mr. Guernsey was calling him four and five times a day
complaining about the trucks and if it kept up that he would have
to get rid of him."  T. at 81.  In response to Nelson's threat,
Guernsey testified that he stopped telephoning Nelson for a
period but started complaining to postal authorities, who in turn
reported the problems on Form 5500s.  T. at 41-43.
     Nelson testified that Guernsey was hired in April by LBJ
Grocery and that thereafter Guernsey called "numerous times --
time and time again," pleading for more hours of work.  T. at
155, 154.  Nelson maintains that in response to Guernsey's pleas
for more work, his company "hired" Guernsey to make the HASP mail
route run, T. at 155-56, 180.  Nelson also contends that Guernsey
did not make safety related complaints to him, and that he
has "no memory of ever seeing [Bean] before."  H.S. at 5-6;
cf. T. at 83.
     Guernsey testified that during the last few days of his
employment, on August 14, as he was heading for Manchester,
driving the twin screw on the HASP run, he crossed a set of
extremely rough bridges, and the truck's cab mounts broke
completely.  T. at 44, 51.  After making some adjustments, he
continued on to Manchester without assistance.  T. at 45-46.
     When he arrived in Manchester, he asked Jim Conway, the 
[PAGE 4]
platform expeditor, to look at the damage.  T. at 47. [6]   While
Conway was inspecting this problem, he observed that the
inspection sticker was missing.  He told Guernsey to notify
Nelson that if the vehicle appeared the next night without an
inspection sticker, it would be turned around.  T. at 95-96.  
Conway allowed Guernsey to continue that night, and Guernsey
finished the trip.  Although Guernsey did not speak with Nelson
personally, he left a telephone message at LBJ Grocery that the
truck needed major repair work before it went back on the road.  
T. at 50.  Guernsey did not testify that he relayed Conway's
message about the inspection sticker. 
     Later, Godfrey called Guernsey and told him to take a
different truck, the single screw truck, on the HASP run the
evening of August 15.  T. at 52.  When Guernsey arrived in
Manchester in the early morning of August 16, Conway cited
Guernsey's truck as "unsatisfactory," and completed a Form 5500,
because the truck did not have a state inspection sticker. 
Conway removed all the mail from the trailer and sent Guernsey
back to White River Junction.  T. at 56-57, 95-96, 92;
Complainant's Exhibit (CX) 5.  Guernsey states that later that
morning, he left a message for Nelson concerning the turn-around
and personally informed Godfrey of the incident.  T. at 59.     
     On the evening of August 16, Guernsey arrived at the White
River Junction post office to make the HASP run and found Godfrey
preparing to make the run.  Guernsey could not recall his full
conversation with Godfrey.  Guernsey went to the bus station
restaurant near by and while he was there, Nelson came in. 
According to Guernsey, Nelson stated that he knew what Guernsey
was doing and "when a truck no longer makes me money, I'll get
rid of the driver and start driving it myself."  T. at 67. 
Nelson told Guernsey he still had a job, but he instructed
Guernsey to take three days off and return to work on August 20. 
When Guernsey reported to the post office for work the evening of
August 20, Godfrey was again preparing to make Guernsey's run. 
Godfrey informed Guernsey that his last paycheck was in the
expeditor's office.  Attached to the paycheck was a note,
stating, in part:
     Bob,
          I've decided to consolidate my runs and my
     drivers.
          As you were last hired you're the first to go.
                                   Thanks
                                   Jerry
CX 4.  
     Nelson claims that his remark, "I know what you are doing,"
referred to his belief that Guernsey was trying to break the old
truck in order to force Nelson to buy Guernsey a new one.  H.S. 
[PAGE 5]
at 4-5.  He claims that he "never said anything to Mr. Guernsey
other than I am going to have to review why this is costing me so
much."  T. at 181.  Nelson testified that "[u]pon reviewing the
vehicles and reviewing the cost and reviewing my economic
standards, review what was coming down the road economically I
decided to do just exactly as that note to Mr. Guernsey said --
consolidate and run with my senior drivers."  T. at 183.
     According to Guernsey, however, within one and one-half
weeks of his discharge, Nelson hired another employee, Mark Rose,
to replace Complainant.  Nelson asserts that he did not hire
Rose, rather, Rose was hired as a replacement for Nelson by LBJ
Grocery.  Nelson lost his postal contract in December 1990, at
which time he laid-off the three senior drivers referred to
above.  T. at 150-51.  
                            DISCUSSION  
     In essence, many aspects of this case required the ALJ to
decide which party's version of the facts he believed.  Because
the ALJ did not discuss all the relevant evidence recounted above
or adequately resolve critical issues of fact and credibility
raised by the evidence, I must remand the case to him for
specific findings and conclusions regarding all the relevant
evidence and issues.  See Pogue v. United States Dept.
of Labor, 940 F.2d 1287, 1289 (9th Cir. 1991); Cotter v. Harris,
642 F.2d 700, 705-707 (3d Cir. 1981).


I.  The Prima Facie Case [7] 

     The ALJ found that Guernsey was engaged in protected
activity because, by voicing his safety concerns, Guernsey caused
a proceeding to be instituted relating to a violation of a
commercial motor vehicle safety regulation.  He stated,
generally, that Guernsey's complaints to Nelson and various
postal officials were clearly protected.  The ALJ also found that
Nelson was aware that Guernsey engaged in this protected conduct
because Guernsey complained to him personally and because Nelson
was informed that the Post Office completed a Form 5500.
     First, I agree that Guernsey engaged in protected conduct on
August 14 when he mentioned to the expeditor, Conway, that his
truck had broken cab mounts.  This allegation is undisputed and
corroborated by Conway.  T. at 95.  Consistent with the language
and purpose of the STAA, a safety related complaint communicated
to the United States postal authorities under the circumstances
presented here is protected.  Cf. Allen v. Revco D.S.,
Inc., Case No. 91-STA-9, Sec. Final Dec. and Order, Sept. 24,
1991, slip op. at 6-7, and cases cited therein; Rehling v.
Sandel Glass Co., Case No. 91-STA-33, Sec. Dec. and Order of
Remand, Jan. 6, 1992, 
[PAGE 6]
slip op. at 9-11 ; Nix v. Nehi-RC Bottling Co., Inc., Case
No. 84-STA-1, Final Dec. and Order, Jul. 13, 1984, slip op. at 8-
9.  See 49 U.S.C. Part 393 (1990); 49 U.S.C. § 392.1
(1990). [8] 
     I cannot, however, uphold the ALJ's apparent blanket
acceptance of Guernsey's remaining allegations of protected
conduct.  Although a safety complaint communicated to management
represents an integral, first step in "filing" a complaint or
"instituting" a proceeding "relating to a violation" as set forth
in the statute, Newkirk v. Cypress Trucking Lines, Inc.,
Case 
No. 88-STA-17, Sec. Final Dec. and Order, Feb. 13, 1989, slip op.
at 5, here there is conflicting evidence which the ALJ has not
addressed, on the issue of whether Guernsey made protected
complaints to Nelson.
     The ALJ did not discuss Nelson's claim that Guernsey made no
safety related complaints to him.  Nelson maintains that Guernsey
persistently telephoned for more work, T. at 154-56, and
complained only about having to drive an old truck with no air
conditioning or power steering while the other employees had
newer trucks with all the "creature comforts," H.S. at 5.  The
ALJ improperly rejected Nelson's contention without discussion of
the relevant evidence, T. at 182, 121-22, 172.  See
Cotter, 642 F.2d at 706-707; Dobrowolsky v.
Califano, 606 F.2d 403, 409-10 (3d Cir. 1979); see
also Ertel v. Giroux Brothers Transportation, Inc.,
Case No. 88-STA-24, Sec. Final Dec. and Order, Feb. 16, 1989,
slip op. at 12 n.7.
     Guernsey also asserts that around the middle of July, after
hearing of Nelson's threat, he started complaining to postal
officials, Conway, Jim Winberg and Ward Paronto.  Conway
testified, however, that the first time a problem was brought to
his attention was August 14 -- broken cab mounts.  T. at 93-94. 
The ALJ did not discuss this evidence.  Although Winberg and
Paronto both testified at the hearing, neither substantiated
Complainant's testimony.  Nelson also correctly points out that
the record contains no 5500 forms to substantiate Complainant's
assertion that he complained to these officials in July. 
Although substantiation may not be required, all relevant,
conflicting evidence must be explicitly weighed by the
factfinder.  See Cotter, 642 F.2d at 706-07;
see also In re Brettholz, Case No.
79-CETA-128, Sec. Final Dec. and Order, 
Jan. 6, 1992, slip op. at 8-9. 
     Furthermore, I am unable to discern the basis for the ALJ's
finding that Nelson was informed that a 5500 was completed --
neither the ALJ nor the Assistant Secretary has cited evidence
supporting the finding.  Guernsey testified, "I'm not sure if any
of them [complaints or 5500s] were actually sent to Mr. Nelson." 
T. at 43.  Furthermore, the 5500 relating to Guernsey's turn-
around incident bears the date August 20, CX 5. [9]   While it is

[PAGE 7]
apparent that on the evening of August 16, Guernsey and Nelson
discussed the broken cab mount problem and the turn-around
incident, H.S. at 4-5, the precise basis for the ALJ's inference
that Nelson knew Guernsey complained to the postal officials is
unclear. 
     On remand, the ALJ must specifically decide and explain
whether Nelson knew Guernsey complained to Conway on August 14;
whether and when Guernsey made safety complaints to Nelson; and
whether Guernsey made safety related complaints to postal
authorities starting in July, and whether Nelson was aware of
this.  The ALJ must additionally consider what impact, if any,
these findings have on other credibility determinations and
causal issues in this case.
     I agree that Guernsey's dismissal from employment
constituted an adverse employment action.  The ALJ properly found
that adverse action had occurred regardless of whether the
employment action was characterized as a legitimate lay-off or an
illegal discharge.  At this point in the analysis of the case,
motivation is irrelevant and thus, whether Guernsey was "laid-
off" or "fired" is a distinction without a difference. 
See   Lewis Grocer Co. v. Holloway, 874 F.2d 1008,
1011 n.1 (5th Cir. 1989). 
     Also on remand, the ALJ must consider whether Guernsey's
preliminary dismissal from work for three days, August 16-19,
constitutes an independent adverse action and, if so, whether the
action was retaliatory in violation of the STAA.
     In analyzing and finding that Guernsey failed to establish
prima facie causation, the ALJ focused exclusively on Guernsey's
allegation that his lay-off was pretextual since Nelson hired
Rose as Guernsey's replacement.  The issue, rather, is whether
Guernsey has presented sufficient evidence to raise the inference
that protected activity was the likely reason for the adverse
action, and the burden is not onerous.  Clay v. Castle Coal
and Oil Co., Inc., Case No. 90-STA-37, Sec. Dec. and Order of
Remand, Nov. 12, 1991, slip op. at 6 n.5, citing Burdine,
450 U.S. at 253, appeal docketed, No. 91-4211 (2d
Cir. Dec. 30, 1991).  The Secretary has held, for example, that
the proximate timing of the protected conduct vis-a-vis the
adverse action is sufficient, and in reconsidering the prima
facie case on remand, the ALJ should address this factor. 
Newkirk, slip op. at 8.   
     The ALJ also did not explicitly discuss or credit Bean's
testimony that Nelson threatened retaliatorily discharge back in
July.  The conversation is disputed by Nelson and on remand, the
ALJ must specifically decide whether the conversation occurred.

[PAGE 8]
II.  The Proffered Reason

     There is no dispute that Nelson at least presented a
legitimate, nondiscriminatory rationale for the discharge,
sufficient to meet his initial burden, should the ALJ find on
remand that a prima facie case has been established.  See
Newkirk, slip op. at 9.  If the ALJ finds a prima facie
case with regard to the initial three-day layoff, he also must
consider whether Nelson has shown a legitimate, nondiscriminatory
reason for that action. 


III.  Dual Motives and Pretext

     Although the ALJ made an alternative finding under a mixed
motive analysis, he applied an improper legal standard.  The ALJ
found that Nelson was "at the very least substantially motivated
to take the action for the entirely legitimate economic reason of
consolidating its drivers and runs."  R.D. and O. at 10.  If, on
remand, the ALJ determines that this a "mixed motive" case, he
must determine whether Nelson has proved by a preponderance of
the evidence, that the legitimate reason for termination,
standing alone, would have induced him to make the same decision,
i.e., that he would have made the same decision even if he
had not taken the protected activity into account.  Price
Waterhouse v. Hopkins, 490 U.S. 228, 252, 258 (1989)
(plurality opinion); Grant v. Hazelett Strip-Casting
Corp., 880 F.2d 1564, 1568-69 (2d Cir. 1989); Randle v.
LaSalle Telecommunications, Inc., 876 F.2d 563, 568-70 (7th
Cir. 1989); see also Blake v. Hatfield Electric
Co., Case No. 87-ERA-4, Sec. Dec. and Remand Order, Jan. 22,
1992, slip op. at 5-6. [10]   
     Finally, with respect to whether Nelson's alleged rationale
for terminating Guernsey was pretextual, again, the ALJ did not
discuss all the relevant evidence.  After examining the evidence,
including entries in the postal records, TIMES Daily Logs, CX 7,
the ALJ accepted Nelson's position that Rose was hired by LBJ
Grocery as Nelson's replacement.  He also found no evidence that
Nelson oversaw the drivers of LBJ Grocery and concluded that
Nelson cannot be held accountable for the actions of LBJ Grocery. 
     First, the ALJ appears not to have considered the TIMES
Daily Logs in their entirety.  Because, as the Assistant
Secretary points out, there is evidence in these records which
seems to bely "consolidation," the ALJ must reconsider the postal
records in full and provide a full explanation for his
conclusion.
     Further, while substantial evidence supports the ALJ's
finding that, technically speaking, Rose was hired by LBJ Grocery

[PAGE 9]
to replace Nelson, there is evidence which, if credited, could
establish that the drivers were routinely interchanged between
the two businesses and thus, that "for all intents and purposes,
Nelson hired Rose because he fired Guernsey," Assistant
Secretary's Brief at 19. [11]   The postal records show that
Godfrey, for example, had driven both routes, and upon Guernsey's
termination, Godfrey moved from the Montpelier route to the HASP
run.  CX 7A, 7B.  Guernsey testified that he too drove both
routes from the very beginning whenever he was needed.  Although
Nelson testified that LBJ Grocery would sometimes borrow drivers
from him, T. at 160, at one point during the hearing, Nelson
seems to indicate that Godfrey asked him if he could run
the Montpelier route.  T. at 155.  But see T. at
160.  On remand, if the ALJ finds a prima facie case, he must
reconsider and decide, if necessary, whether the evidence as a
whole establishes that Respondent's explanation for Guernsey's
termination was pretextual.  
                               ORDER
     Accordingly, this case is remanded to the ALJ for further
consideration consistent with this decision.  It is expected that
a revised recommended decision shall be submitted by the ALJ
within 90 days of this Decision and Order of Remand.  
     SO ORDERED.

                              LYNN MARTIN
                              Secretary of Labor

Washington, D.C.
          


OAA:JJOYCE:kg:02/21/96
Room S-4309:FPB:523-9728


[END NOTES]

[1]  Nelson testified that he is the sole proprietor of his
trucking business, which is simply called Jerry E. Nelson. 
Transcript (T.) at 156.  For simplicity, Respondents shall be
referred to singularly as Nelson.  

[2]  At the close of the hearing, the ALJ left the record open so
that the parties could "submit any written summary of their
position or argument as to the law or anything else."  T. at 211-
13.  I note that at the evidentiary hearing and throughout this
entire proceeding, Nelson has appeared pro se.

[3]  In determining whether to accept a recommended decision
under the STAA, the Secretary's review is limited to an
examination of whether the case record contains substantial
evidence to support the ALJ's findings of fact and whether the
ALJ's decision is in accordance with law.  29 C.F.R. §
1978.109(c)(3); Davis v. Hill, Inc., Case No. 86-STA-18,
Sec. Dec. and Order of Remand, Mar. 19, 1987, slip op. at 2 n.1. 

[4]  A single screw truck has one axle under the rear while a
twin screw has two axles under the rear.  T. at 20.

[5]  The post office in Westborough is a main postal facility and
is called the HASP, i.e., the hub and spoke.  T. at 10. 

[6]  A postal "expeditor" handles the loading dock, dispatches
trucks, and, when necessary, completes route irregularity forms,
called 5500s.  A 5500 is necessary to record late trips.  T. at
88-89, 15.  Additionally, "[f]rom time to time [expeditors] are
supposed to check the driver's licenses, stickers and things like
this -- safety things."  T. at 95.

[7]  The burdens of proof and production adopted for use in STAA
proceedings derive from models articulated and applied in
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248
(1981), and Mt. Healthy City School District Bd. of Educ. v.
Doyle, 429 U.S. 274 (1977).  See Roadway Exp., Inc.
v. Brock, 830 F.2d 179, 181 n.6 (11th Cir. 1987).  The
particular burdens under the STAA are set forth in McGavock v.
Elbar, Inc., Case No. 86-STA-5, Sec. Final Dec. and Order,
Jul. 9, 1986, slip op. at 10-11, and the ALJ correctly recognized
the elements of a prima facie case.  R.D. and O. at 8-9.  

[8]   Although the parties devoted much attention to whether
Nelson's trucks were actually in violation of the law, a
complaint related to a safety violation is protected under
Section 2305(a) even if the complaint is ultimately determined 
to be meritless.  See Allen, slip op. at 6 n.3, and
cases cited therein.

[9]  Paronto, who works at the White River Junction post office,
indicated that he mails out his 5500 forms.  T. at 108.

[10]  Although the Assistant Secretary urges that I find Bean's
testimony sufficient to shift the full burden of proof to Nelson,
here, the ALJ in the first instance must consider the credibility
and sufficiency of Bean's testimony.

[11]  The ALJ's reference to the doctrine of piercing the
corporate veil is inappropriate.  See Assistant
Secretary and Wilson v. Bolin Associates, Inc., Case No. 91-
STA-4, Sec. Final Dec. and Order, Dec. 30, 1991, slip op. at 5-6. 
The doctrine is also inappropriate on the facts since there is no
evidence or argument that Nelson is a corporate officer of LBJ
Grocery, or that LBJ Grocery is a party to this case.