DATE:  Jaunary 6, 1992
CASE NO. 91-STA-33


IN THE MATTER OF

DELMER D. REHLING,

          COMPLAINANT,

     v.

SANDEL GLASS COMPANY,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                       DECISION AND ORDER OF REMAND

     This case arises under Section 405 of the Surface
Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. 
§ 2305 (1988).  Before me for review is the Recommended
Decision and Order (R.D. and O.) issued on September 12, 1991, by
the Administrative Law Judge (ALJ).  
                               FACTS
     Respondent Sandel Glass Company, located in Clovis,
California, engages in glass conversion.  It "buy[s] glass in
bulk from glass factories, cut[s] it down . . . repackage[s] it,
and resell[s] it."  Hearing Transcript (T.) 62.  Respondent
retrieves bulk glass purchased from the factories and delivers
the repackaged product to its customers in trailer trucks rented
from Rollins Truck Leasing in Bakersfield, California.  Although
Respondent operates primarily within the State of California, it
also hauls out-of-state, e.g., to Salt Lake City, Utah,
and Washington State, assigning its more experienced drivers to
make these trips.  T. 71-72.  On November 29, 1990, Respondent
hired Complainant Delmer Rehling as a truck driver.  At that
time, 
[PAGE 2]
Complainant was employed as a driver for Combined Transport. 
Between 1986 and 1990, he had been employed by Yellow Freight
System as an over-the-road driver between Chicago, Illinois, and
the West Coast.  T. 123-125.  
     At 12:30 a.m. on Friday, November 30, Complainant departed
Respondent's facility in Clovis, [1]  traveled South on U.S.
Highway 99, and arrived at a customer facility in Buena Park,
California, [2]  between 5:30 a.m. and 6:30 a.m.  T. 35-36. 
After completing his delivery, Complaint traveled on Interstate
Highway 5 to Anaheim, California, completing a second delivery by
8:30 a.m.  T. 37.  Complainant then departed for a glass factory
in Victorville, California, stopping briefly, for lunch and a
shower, at a truck stop on the Cajon Pass near Hesperia.  T. 38-
39, 44.  Complainant proceeded to Victorville via U.S. Highway 66
and Interstate Highway 15.  Upon arrival, Complainant was
informed that the loading crew would not return from lunch until
1:00 p.m.  Thereafter, Complainant's truck was loaded, and he
departed Victorville at 1:50 p.m.  Complainant proceeded to
Bakersfield where he made an authorized stop at Rollins Truck
Leasing for refueling and mechanical assistance.  T. 14-15, 34,
128.  He then returned to Clovis, arriving at Respondent's
facility at 8:15 p.m.  Complainant's trip time totaled 19.75
hours, between 12.5 and 13.0 hours of which constituted driving
time. [3]   After driving his assigned routes on Monday, December
3 and Tuesday, December 4, Complainant was discharged.  
     During this period, Complainant complained that his schedule
required him to violate Department of Transportation (DOT)
regulations limiting a truck driver's driving time. [4]   On
November 30, Complainant complained to Respondent's dispatcher
Karen Ayala on several occasions during the trip when he reported
to dispatch as required.  T. 30.  In a 3:30 p.m. telephone call
from Mojave, California, en route from Victorville to
Bakersfield, Complainant complained to Respondent's president
Barry Kaufman.  T. 24-26, 31.  Complainant's specific complaint
was that the DOT hours limitation required him to lay over in
Bakersfield and that he would be "running over hours" returning
to Clovis that evening.  T. 15, 26, 28.  Both President Kaufman
and Dispatcher Ayala directed Complainant to drive straight
through to Clovis with the load, and he complied.  T. 12, 28, 34,
40.  On Saturday morning, December 1, Complainant telephoned
Dispatcher Ayala to discuss his November 30 driver's log which he
had not completed.  She instructed him to falsify the log, and he
complained to her about making the alteration. [5]   T. 13, 21,
26, 41.  President Kaufman testified that Complainant was
discharged because he argued with Dispatcher Ayala and "tied her
up on the telephone complaining and she dismissed him."  T. 64. 
See T. 67, 78-79, 86.  

[PAGE 3]
                              ANALYSIS
     1.  Coverage
     Respondent argues, and the ALJ found, that as an intrastate
driver Complainant was not protected under the STAA, and thus his
dismissal did not violate the STAA.  R.D. and O. at 4-6, 7.  I
disagree.  
     Section 405(a) provides that "[n]o person shall
discharge 
. . . any employee . . . because such employee . . . has
filed any complaint . . . relating to a violation of a commercial
motor vehicle safety rule, regulation, standard, or order . . .
."  
49 U.S.C. § 2305(a) (emphasis added).  A "person" is "one or
more individuals, partnerships, associations, corporations,
business trusts, or any other organized group of individuals" for
purposes of the subchapter, 49 U.S.C. app. § 2301(4), and
would include Respondent, President Kaufman, and Dispatcher
Ayala.  An "employee" is a driver of a commercial motor vehicle,
a mechanic, a freight handler, or any individual other than an
employer "who is employed by a commercial motor carrier and who
in the course of his employment directly affects commercial motor
vehicle safety . . . . "  49 U.S.C. app. § 2301(2). [6]   A
"commercial motor vehicle" includes "any self-propelled . . .
vehicle used on the highways in commerce principally to transport
passengers or cargo" with a gross vehicle weight rating of ten
thousand or more pounds.  49 U.S.C. app. § 2301(1).  The
term "commercial motor carrier" is not defined in the subchapter
but has been interpreted to include motor carriers and motor
private carriers described at 49 U.S.C. § 10102(13), 
(14), (15), and (16) (1988).[7] See 29 C.F.R. § 
1978.101(e).  
      At the very least, the Complainant in the instant case was
an individual other than an employer (1) who was employed by a
commercial motor carrier and (2) who directly affected commercial
motor vehicle safety in the course of his employment. 
Respondent, Complainant's employer, is a private carrier engaged
in truck transport of cargo which it purchases, processes, and
sells.  Respondent leases trailer trucks and performs both
intrastate and interstate pickups and deliveries of bulk and
repackaged glass. [8]   Accordingly, Respondent reasonably
constitutes a variety of commercial motor carrier covered under
STAA Section 405(a).  
     In the course of his employment, Complainant operated a
trailer truck on National Interstate and U.S. Highways between
the Fresno and Los Angeles vicinities.  In particular, he used
U.S. Highway 99 and Interstate Highway 5, which together
constitute a major artery running the length of the West Coast of
the United States connecting Canada and Mexico.  These routes
carry commercial motor vehicle traffic through California,
Oregon, and Washington.  Complainant's manner of vehicle 
[PAGE 4]
operation and the condition of his equipment thus affected
commercial motor vehicle safety.  See Howe v. Domino's
Pizza Distribution Corp., Case No. 89-STA-11, Sec. Dec., Jan.
25, 1990 (adopting ALJ R.D. and O.) (test is not whether a state
line is crossed but whether the vehicle is driven on a highway,
directly affecting motor vehicle safety).  
     Moreover, the fact the Respondent's drivers regularly
operate vehicles on National Interstate and U.S. Highways also
supports a finding that Respondent and its employees are engaged
in commerce.  Tow truck operators servicing portions of National
Interstate, U.S., or interconnecting State Highways have been
held to exert a substantial impact on interstate commerce. 
Brennan v. Keyser, 507 F.2d 472, 474-475 (9th Cir. 1974),
cert. denied, 420 U.S. 1004 (1975) (operators performing
work on highways serving as interstate connections engaged in
commerce for purposes of Fair Labor Standards Act coverage);
Gray v. Swanney-McDonald, Inc., 436 F.2d 652 (9th Cir.),
cert. denied, 402 U.S. 995 (1971) (same).  Depending on
their manner of operation in traveling interconnecting routes,
e.g., whether in or out of compliance with safety
regulations, intrastate haulage drivers similarly may facilitate
or impede the course of interstate traffic and thus substantially
affect interstate commerce.  Having driven Respondent's leased
trailer trucks intrastate on major thoroughfares, Complainant
thus constituted a driver of a commercial motor vehicle,
i.e., a cargo transport vehicle "used on the highways in
commerce . . . ."  
     Accordingly, Complainant, Respondent, and Respondent's
principals who discharged Complainant are covered under STAA
Section 405(a).

     2.  The Merits
     Under the burdens of proof and production in "whistleblower"
proceedings, Complainant first must make a prima facie showing
that protected activity motivated Respondent's decision to take
adverse employment action.  Respondent may rebut this showing by
producing evidence that the adverse action was motivated by a
legitimate, nondiscriminatory reason.  Complainant then must
establish that the reason proffered by Respondent is not the true
reason.  Roadway Exp., Inc. v. Brock, 830 F.2d 179, 181
n.6 (11th Cir. 1987).
     In order to establish a prima facie case, Complainant must
show that he engaged in protected activity, that he was subjected
to adverse action, and that Respondent was aware of the protected
activity when it took the adverse action.  Complainant also must
present evidence sufficient to raise the inference that the
protected activity was the likely reason for the adverse action.
Under STAA Section 405(a), an employee is protected if he "has
filed any complaint or instituted or caused to be instituted any 
[PAGE 5]
proceeding relating to a violation of a commercial motor vehicle
safety rule, regulation, standard, or order . . . ."  49 U.S.C.
app. § 2305(a).  
     Statutory provisions which protect employees for
participating in agency proceedings are accorded "exceptionally"
broad application.  NLRB v. Retail Store Emp. U., Local
876, 570 F.2d 586, 590-591 (6th Cir.), cert. denied,
439 U.S. 819 (1978); Pettway v. American Cast Iron Pipe
Co., 411 F.2d 998, 1004-1008 (5th Cir. 1969); EEOC v.
Kallir, Phillips, Ross, Inc., 401 F. Supp. 66, 70-71
(S.D.N.Y. 1975).  See also Marshall v. Whirlpool
Corporation, 593 F.2d 715, 724-725 (6th Cir. 1979),
aff'd, 445 U.S. 1 (1980).  The impetus is to protect all
forms of access to respective agencies at all stages of
administrative process and thus to prevent agencies' channels of
information from "being dried up by employer intimidation . . .
."  NLRB v. Scrivener, 405 U.S. 117, 121-124 (1972) (equal
and consistent protection at all stages of investigation and
litigation essential to preserving integrity of the process in
its entirety); DeFord v. Secretary of Labor, 700 F.2d 281,
286 (6th Cir. 1983).  See NLRB v. Robbins Tire & Rubber
Co., 437 U.S. 214, 239-240 (1978); Croushorn v. Board of
Trustees of Univ. of Tenn., 518 F. Supp. 9, 21-24 (M.D. Tenn.
1980) (employee protected in informing employer of intent to file
charge).  See also Grand Rapids Die Casting Corp. v.
NLRB, 831 F.2d 112, 116 and n.2, rehearing and rehearing
en banc denied per curiam, 833 F.2d 605 (6th Cir. 1987). 
Information obtained in related proceedings in turn may
precipitate or otherwise bear on STAA complaints or
investigations. [9] 
     In cases involving participation, the discriminatee need not
prove the validity of the underlying claim in order to prevail. 
Sias v. City Demonstration Agency, 588 F.2d 692,
694-695 (9th Cir. 1978); Novotny v. Great Am. Sav. & Loan
Ass'n, 539 F. Supp. 437, 449-450 (W.D. Pa. 1982).  Cf.
Pettway v. American Cast Iron Pipe Co., 411 F.2d at 1007
(charging employee protected despite incorrect information
presented in communication with or proceeding before EEOC). 
Moreover, the statutory "relating to" language does not restrict
protection to participation in STAA proceedings.  Rather,
protection extends to employees who have filed any complaint
relating to a violation of a spectrum of safety criteria.  The
language contemplates proceedings arising under Department of
Transportation, other Federal, and state laws, and could
encompass arbitration and involve an employer's safety rules.
[10]   See Brock v. Roadway Express, Inc., 481 U.S.
252, 258, 262 (1987) (Section 405 enacted to encourage employee
reporting in light of widespread safety violations found pervade
surface transportation industry nationally).  
     Here, Complainant made a prima facie showing of unlawful 
[PAGE 6]
discrimination.  Complainant engaged in protected activity when
he complained internally to Respondent's president and dispatcher
that completion of the work schedule would place him in violation
of regulatory driving limitations.  Davis v. H.R. Hill,
Inc., Case No. 86-STA-18, Sec. Dec., Mar. 18, 1987, slip op.
at 3-4.  Cf. Bivens v. Louisiana Power & Light,
Case No. 89-ERA-30, Sec. Remand Dec., June 4, 1991, slip op. at
4-5 (citing cases) (internal safety complaints to employer
protected under environmental whistleblower laws).  Complainant's
complaint to the dispatcher when directed to falsify his log also
is protected.  Complainant was subjected to adverse action when
discharged thereafter, and Respondent admits that the complaints
precipitated the discharge.  The ALJ rejected as pretextual other
reasons posited for Complainant's discharge.  R.D. and O. at 7. 
The record fully supports this finding, and I adopt it. [11]  
Accordingly, Complainant has prevailed on the merits of his
complaint.
                               ORDER
     Respondent is ordered immediately to offer Complainant
reinstatement.  49 U.S.C. app. § 2305(c)(2)(B).  This case
is remanded to the ALJ for findings as to any back pay
appropriately awarded and costs and expenses incurred.  It is
anticipated that the ALJ will complete these further proceedings
and submit a supplemental recommended decision and order within
90 days of receipt of this order.  
     SO ORDERED.



                              LYNN MARTIN
                              Secretary of Labor

Washington, D.C.


[ENDNOTES]
           
[1]   Clovis is located near Fresno, California.  

[2]   Buena Park is located Southeast of Los Angeles.  

[3]   The ALJ credited Complainant's testimony regarding hours
worked.  R.D. and O. at 6-7.  These findings are supported 
by substantial evidence, and I adopt them.  29 C.F.R. 
§ 1978.109(c)(3) (1991).  The record documents between 5.5
and 6.0 hours driving time from Clovis to Buena Park, 0.5 hours
from Buena Park to Anaheim, 2.0 hours from Anaheim to
Victorville,  and 4.5 hours from Victorville to Clovis.  T. 31, 33, 36-37. 
Complainant's mileage on November 30 totaled 631 miles.  T. 14.  

[4]   Under Federal Highway Administration, DOT regulations
appearing at 49 C.F.R. § 395.3 (1990), drivers may not drive
more than ten hours following eight consecutive hours off duty or
for any period after having been on duty for 15 hours following
eight consecutive hours off duty.  The State of California
Vehicle Code provides that the maximum driving time within a work
period is 12 hours if the vehicle is engaged solely in intrastate
commerce and is not transporting hazardous materials.  Cal. Veh.
Code § 34501.2(b)(4) (West 1971 & Supp. 1991).  

The California Code also provides:

          No person shall drive upon any highway any
          vehicle designed or used for transporting
          merchandise, freight, materials or other
          property for more than 12 consecutive hours
          nor for more than 12 hours spread over a
          total of 15 consecutive hours.  Thereafter,
          such person shall not drive any such vehicle
          until eight consecutive hours have elapsed. 

          Regardless of aggregate driving time, no
          driver shall drive more than 12 hours in any
          24-hour period unless eight consecutive hours
          have elapsed. . . .  In computing the number
          of hours under this section, any time spent
          by a person in driving such a vehicle outside
          this state shall, upon the vehicle entering
          this state, be included. . . .

          Any person who violates any provision of this
          section is guilty of a misdemeanor and is
          punishable by a fine of not less than one
          hundred dollars ($100) nor more than one
          thousand dollars (,000) for each offense.

Id. at § 21702 (West Supp. 1991).  

[5]   See 49 C.F.R. § 395.8 and Cal. Veh. Code
§§ 34501(a)(1), 34501.3(b), 34501.4, 34501.10 (West
Supp. 1991) (regulations governing driver's logbooks). 

[6]   A related term, "employer," is "any person engaged in a
business affecting commerce who owns or leases a commercial motor
vehicle in connection with that business, or assigns employees to
operate it in commerce, but such term does not include the United
States, any State, or a political subdivision of a State . . . ."

[7]   A motor carrier either (1) holds itself out to the general
public to provide motor vehicle transportation for compensation
(motor common carrier) or (2) provides motor vehicle
transportation for compensation under a continuing agreement
(motor contract carrier).  A motor private carrier transports
property owned by it, via motor vehicle, for sale or to further 
a commercial enterprise.  

[8]   Although Respondent's president characterized its
interstate business as "rare," he failed to quantify the
activity.  That interstate trips may not comprise a major portion
of Respondent's total activities is not dispositive, however. 
See Harding v. Kurco, 650 F.2d 228, 230 (10th Cir.
1981) ("[I]t is not necessary that [an employer's] interstate
contacts be overwhelming").  Respondent admitted that trips are
made from California to Washington and Utah and that Respondent's
experienced drivers are assigned to transport out-of-state cargo.  Thus, 
limited interstate activity appears to be ongoing.  

[9]  Cf. Donovan v. R.D. Andersen Const. Co., Inc.,
552 F. Supp. 249, 251-253 (D. Kan. 1982) (possibility that an
employee's communication to the media could result in the
institution of OSHA proceedings prompted finding that
communication was protected).

[10]   Compare, e.g., the employee protection
provision of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 815(c) (1988), which addresses complaints,
proceedings, and testimony offered in proceedings "under or
related to this chapter . . . ."  This language has been held to
protect an employee who refused to agree to relate a questionable
version of events, as directed by her employer, but whom Federal
inspectors never interviewed.  Donovan v. Stafford Const.
Co., 732 F.2d 954, 958-960 (D.C. Cir. 1984).  Protection also
extended to a mine foreman who complained to his employer and a
state agency that the reporting structure in effect at the mine
created an unsafe condition and violated state law.  The
foreman's conflict with management over the reporting structure
was found to be safety-related.  Secretary of Labor ex rel.
Joseph Gabossi v. Western Fuels-Utah, Inc., 10 FMSHRC 953,
1988 O.S.H. Dec. (CCH) par. 28,281 (1988).  The employee
protection provision of the Occupational Safety and Health Act of
1970, 29 U.S.C. § 660(c)(1988), similarly contains the
"under or related to this chapter" language.  See
Donovan v. Diplomat Envelope Corp., 587 F. Supp. 1417,
1424-1425 (E.D.N.Y. 1984), aff'd mem., 760 F.2d 253
(2d Cir. 1985); Marshall v. Springville Poultry Farm,
Inc., 445 F. Supp. 2 (M.D. Pa. 1977).



[11]   Respondent argues that Complainant failed to call in
regularly, declined to relocate from Apple Valley to Clovis, and
exceeded the reasonably allocated time period in which to
complete his scheduled trip.  The record establishes that
Complainant called in as required, that he did not refuse to
relocate, that his trip time was reasonable, and that Respondent
did not enforce a timetable governing its drivers' returns. 
See, e.g., T. 30-31, 73, 84-86, 94-99, 126-127.