DATE:  April 22, 1992
CASE NO. 91-STA-42


IN THE MATTER OF

ALBERT BARR,

          COMPLAINANT,

     v.

ACW TRUCK LINES, INC.,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     Before me for review is the [Recommended] Decision and
Order-Denying Claim (R.D. and O.), issued by the Administrative
Law Judge (ALJ) on December 31, 1991, in this case arising under
the Surface Transportation Assistance Act of 1982 (STAA), 
49 U.S.C. app. § 2305 (1988), and the implementing
regulations, 29 C.F.R. Part 1978 (1991).  The pro
se Complainant has submitted a brief before me, as
permitted under 29 C.F.R. § 1978.109(c)(2).
     The ALJ recommends that the complaint be dismissed because
Complainant failed to establish a prima facie case of retaliation
under the employee protection provision of the STAA.  The ALJ 
specifically found that Complainant failed to show that his
complaint constituted protected activity under Section 2305(a) or
Section 2305(b) of STAA.  ALJ's R.D. and O. at 6-7; see
generally Mace v. ONA Delivery Systems, Inc., Case
No. 91-STA-10, Sec. 
[PAGE 2]
Final Dec. and Order, Jan. 27, 1992, slip op. at 5-6.  Further,
the ALJ concluded that Complainant failed to establish that 
the alleged protected activity motivated Respondent's adverse
action. [1] 
     The ALJ's factual findings, except as clarified herein, are
supported by the evidence of record considered as a whole, and
thus these findings are conclusive.  29 C.F.R. §
1978.109(c)(3); R.D. and O. at 2-5.  In addition, I 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.  
     Under the burdens of proof and production in STAA
proceedings, to establish a prima facie case Complainant must
show that he engaged in protected activity, that he was subject
to adverse employment action, and that Respondent was aware of
the protected activity when it took the adverse action. 
Complainant also must present sufficient evidence to raise the
inference that the protected activity was the likely motive for
the adverse action.  McGavock v. Elbar,Inc., Case No. 86-
STA-5, Sec. Final Dec. and Order, Jul. 9, 1986, slip op. at 10-
11; accord Moon v. Transport Drivers, Inc., 836
F.2d 226, 229 (6th Cir. 1987).
     Section 2305(a) of the STAA prohibits adverse action against
an employee "because such employee has filed any complaint . . .
relating to a violation of a commercial motor vehicle safety
rule, [or] regulation. . . ."  49 U.S.C. § 2305(a).  Any
complaint "related" to a safety violation made by an employee to
his employer constitutes protected activity under Section
2305(a).  See Moon v. Transport Drivers, Inc., 836
F.2d at 228-29; Allen v. Revco D.S., Inc., Case No. 91-
STA-9, Sec. Final Dec. and Order, Sept. 24, 1991, slip op. at 6;
Moravec v. HC & M Transportation, Inc., Case No. 90-STA-
44, Sec. Dec. and Order of Remand, July 11, 1991, slip op. at 7;
Monteer v. Milky Way Transport Co., Inc., Case No. 90-STA-
9, Sec. Final Dec. and Order, July 31, 1990, slip op. at 3. [2]  
Section 2305(b) of the STAA prohibits discriminatory treatment of
employees in either of two "work refusal" circumstances. [3]   
     Complainant's request to Mr. Kielhorn in December 1989, not
to make the long runs any more, was not a protected complaint on
the facts of this particular case.  Complainant's testimony does
not establish that he ever complained to Mr. Kielhorn about
running in violation of Department of Transportation (DOT)
regulations or about safety concerns or that he ever refused a
run either before or after his December request.  It is
undisputed that he continued to accept long runs, including those
in violation of DOT regulations, without objection or complaint
after his informal request to make shorter runs. [4]   Tr. at 
30-45.  
[PAGE 3]
     Complainant does not allege that he communicated any safety-
related concern to Respondent, only that he expressed his
preference for shorter runs due to his inability to continue
making the long runs like he could as a younger man. 
Complainant's testimony never contradicts Mr. Kielhorn's
testimony that he has no recollection of any safety related
complaint from Complainant.  Tr. at 82, 106, 117-124, 138, 144-
145.  Moreover, there is no evidence in the record indicating
that Respondent regarded any such conversation as a safety
complaint or a concern over runs in violation of DOT regulations.
Based on this record, I conclude, as did the ALJ, R.D. and O. at
7, that Complainant failed to sufficiently communicate a safety
related complaint to Respondent, and thus, failed to establish
protected activity under the STAA.  See
generally Boone, slip op. at 3-4;
McGavock v. Elbar, Inc., Case No. 86-STA-5, Sec. Final
Dec. and Order, July 9, 1986, slip op. at 10-11.  
     Even were I to treat the request as protected and find that
the other prima facie elements were established, this record as a
whole would not show that Respondent's adverse action was in
retaliation for protected activity.  R.D. and O. at 5-8, 10. 
Respondent has shown, without controversion, that Complainant's
runs were reduced in April due to a plant closing which
significantly reduced the Respondent's work by eighty percent. 
Further, Respondent has established that Complainant was not
assigned runs after June 14, 1990, because Respondent 
had not received Complainant's physical fitness report. 
Complainant did not demonstrate that Respondent's legitimate,
nondiscriminatory reason for not assigning him runs after June
was a pretext.  There is no evidence in this record, other than
Complainant's bare allegations, that Respondent withheld work
from Complainant in retaliation for his complaining about the
long runs.  To the contrary, the record demonstrates that
Respondent made efforts to assign runs to the Complainant despite
the reduced work load and accommodated his requests about work
schedule preferences, until Complainant notified Respondent of
failing his physical.  Accordingly, Complainant failed to carry
his further burden of showing that Respondent's adverse action
was in retaliation for protected activity in violation of the
STAA.  McGavock at 10-11; Moravec, Sec. Final Dec.
and Order, slip op. at 11-13.        
     Accordingly, the complainant is denied.  29 C.F.R. 
§ 1978.109(c)(4).   
     SO ORDERED.



                              LYNN MARTIN
                              Secretary of Labor

Washington, D.C.



[ENDNOTES]

[1]   In determining whether Complainant established the elements
of his prima facie case, the ALJ incorrectly considered
Respondent's reasons for not assigning Complainant any runs after
June 14, 1990.  See Moravec v. HC & M Transportation,
Inc., Case No. 90-STA-44, Sec. Final Dec. and Order, Jan. 6,
1992, slip op. at 11, appeal docketed, No. 92-70102
(9th Cir. Feb. 18, 1992).  The ALJ apparently combined the
analysis of Complainant's initial burden of presenting sufficient
evidence to give rise to an inference that his protected activity
motivated the Respondent's adverse action, with his further
burden, to establish that Respondent's proffered reason for the
adverse action is a pretext for retaliation.  R.D. and O. at 8-
10.  

[2]   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 at 6, n.1

[3]   Absent unusual circumstances, the reason for a work refusal
should be communicated to an employer to gain protection under
the STAA.  See generally Osborn v. Cavalier
Homes of Alabama, Inc., Case No. 89-STA-10, Sec. Final Dec.
and Order, Jul. 17, 1991, slip op. at 3-4; Boone v. TFE,
Inc., Case No. 90-STA-7, Sec. Final Dec. and Order, Jul. 17,
1991, slip op. at 3-4, appeal docketed, No. 91-2659
(4th Cir. Sept. 16, 1991).  

[4]   As the ALJ found, not all of the long runs required
violation of the DOT driving time regulations.