DATE:  April 7, 1993
CASE NO. 91-STA-48


IN THE MATTER OF

HERSEY JUDD,

          COMPLAINANT,

     v.

HELENA TRUCK LINES, INC.,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                            DECISION AND ORDER

     Before me for review is the December 24, 1992, [Recommended]
Decision and Order (R. D. and O.) of the Administrative Law Judge
(ALJ) in this case arising under Section 405, the employee
protection provision, of the Surface Transportation Assistance
Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1988).  The ALJ
found that Complainant did not present sufficient evidence to
establish a prima facie case of a violation of the STAA and
recommended dismissal.  Although permitted by 29 C.F.R. §
1978.109(c), neither Complainant nor Respondent filed a brief
before me.  In reaching this decision, I have considered the
post-hearing briefs both parties filed before the ALJ.
     The findings of fact in the ALJ's R. D. and O. are supported
by substantial evidence, therefore are conclusive, 29 C.F.R. 
§ 1978.109(c)(3) (1992), and I adopt them.  Although I agree
with the outcome of the ALJ's decision, I will provide additional
legal analysis to explain the basis for my agreement.
     The parties stipulated that Complainant is an employee and
that Respondent is an employer within the meaning of the STAA. 
T. 14.  Section 405(b) of the STAA provides:
[PAGE 2]
          No person shall discharge, discipline, or in
          any manner discriminate against any employee
          with respect to the employee's compensation,
          terms, conditions, or privileges of
          employment for refusing to operate a vehicle
          when such operation constitutes a violation
          of any Federal rules, regulations, standards,
          or orders applicable to commercial motor
          vehicle safety or health . . . .

49 U.S.C. app. § 2305(b) (1988).
     Under the burden of proof in proceedings under the employee
protection provision, in order to establish a prima facie case,
the complainant must show by a preponderance of the evidence 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.  Assistant Secretary
and Zessin v. ASAP Express, Inc., Case No. 92-STA-0033, Dec.
and Order, Jan. 19, 1993, slip op. at 6; Auman v. Inter
Coastal Trucking, Case No. 91-STA-00032, Final Dec. and
Order, July 24, 1992, slip op. at 2.  Complainant must also
present evidence sufficient to raise the inference that the
protected activity was the likely reason for the adverse action. 
Id.
     Complainant alleged that Respondent routinely required him
to drive in violation of the Federal regulations governing
drivers' hours of service, 49 C.F.R. § 395.3(a) and (b).
Complainant argued that he engaged in protected activity when he
informed Respondent that he no longer would operate in violation
of the hours of service regulations and requested that Respondent
refrain from assigning him to dispatches that would require going
over hours.  Com. Br. at 3; CX 12. [1]  
     The evidence established, however, that for personal
reasons, Complainant routinely declined to use the most direct
highway route from the point of dispatch to destination, and
often exceeded the "practical" route miles by a significant
amount.  T. 208-213; CX 13, 19, 23, 24; RX 28-32.  Using
Complainant's driver logs, terminal manager Ezra Sharpe explained
that driving the most practical route would have eliminated the
over-hours violations Respondent incurred on several trips.  
T. 207-214.  I find that Complainant did not establish by a
preponderance of the evidence that he engaged in protected
activity when he protested being "required" to drive in violation
of the hours of service regulation.
     Even assuming, for the sake of argument, that Complainant
established that he engaged in protected activity, the evidence
revealed that Respondent did not take adverse action against him. 
Complainant claimed that after he refused to return a memorandum 
[PAGE 3]
on which terminal manager Sharpe had written notes, Sharpe said
Complainant was fired.  T. 61.  Sharpe testified that he did not
fire Complainant, T. 255, but rather, when Complainant asked if
he was fired, Sharpe said no.  T. 161.  Mechanic Terry Cordell
corroborated Sharpe's testimony.  T. 177.  All agree that
Complainant never reported to work after the memorandum incident
on August 8, 1990.
     The ALJ credited the testimony of Sharpe and Cordell over
that of Complainant.  R. D. and O. at 9.  Ample evidence supports
the ALJ's assessment of credibility.  For example, Complainant
maintained at the hearing that he informed Respondent promptly of
a minor accident he had in June 1990.  T. 26-28. [2]   Yet
Complainant caused his attorney to write a letter to Respondent
on August 1, 1990, that stated that Complainant "has been one of
your employees for three (3) years and has had no accidents."  
CX 12.  Complainant's contradictory statements concerning whether
he promptly reported the June 1990 accident to Respondent
undermined his credibility.  Thus, I find that the record shows
that Complainant voluntarily quit his job.
     I find that Complainant did not establish by a preponderance
of the evidence that Respondent took adverse action against him. 
In view of the failure to present sufficient evidence to
establish either that he engaged in protected activity or
suffered adverse action, Complainant did not establish a prima
facie case of a violation of the STAA. [3]   Accordingly, the
complaint is DISMISSED.
     SO ORDERED.



                       ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.





[ENDNOTES]
           
[1]   Complainant also complained through his attorney that
Respondent did not maintain its vehicles adequately.  CX 12.
He did not argue, however, that his complaints about maintenance
constituted protected activity.  

[2]   Sharpe testified that Complainant did not report the June
1990 accident that month, but rather that Sharpe discovered
evidence of the accident himself in late July.  T. 230. 
Operations manager Wesley Kersey confirmed Sharpe's testimony. 
T. 267-268.

[3]   I disagree with Respondent's contention (Resp. Br. at 20-
23) that the complaint is moot because Complainant has too many
moving violations in his driving record to allow reinstatement to
his position as a truck driver.  If Complainant succeeded in
proving his case, he would be entitled to expunction of the
voluntary resignation from his record.  
     In view of the fact that the ALJ presided over a full
evidentiary hearing and that I have made findings based on the
record, I need not rule on Respondent's argument (Resp. Br. at
14-20) that under the doctrine of collateral estoppel, the
rulings of Tennessee Department of Employment Security and the
EEOC precluded relitigating the issue of whether Complainant was
discharged or voluntarily resigned.