DATE:  May 18, 1994
CASE NO. 92-STA-16


IN THE MATTER OF

JIMMY D. SETTLE,

          COMPLAINANT,

     v.

BWD TRUCKING COMPANY, INC.,
AND RED ARROW CORPORATION,

          RESPONDENTS.


BEFORE:   THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     Before me for review are the Recommended Decision and Order
(R.D. and O.), dated July 30, 1993, and the Supplemental
Recommended Decision and Order (S.R.D. and O.), dated January 21,
1994, issued by the Administrative Law Judge (ALJ) in this case
arising under the employee protection provision of the Surface
Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. 
§ 2305 (1988).
     Complainant alleges that he was suspended on September 20,
1991, and ultimately fired on November 7, 1991, because he
complained about Respondent's scheduling and refused to drive in
violation of the Department of Transportation hours-of-service
regulation at 49 C.F.R. § 395.3(a)(1) (1992).  The ALJ found
that while Complainant ultimately proved that his suspension was
based on his protected activity, and not the reason proffered by
Respondent, Complainant failed to prove that his termination was
motivated by protected activity.  Based on a thorough review of
the entire record before the ALJ, including the post-hearing
pleadings, I agree. [1] 
     The ALJ first found that Complainant engaged in protected 
[PAGE 2]
activity on September 20, when he refused to continue driving his
assigned run because he believed he was in violation of the
regulation at 49 C.F.R. § 395.3(a)(1).  R.D. at 3-4, 10.  I
accept this finding because it is fully supported by the evidence
and applicable law.  See 29 C.F.R. § 1978.109(c)(3)
(1993); Trans Fleet Enterprises v. Boone (Boone),
987 F.2d 1000 (4th Cir. 1992).  Regulatory section 395.3(a)(1)
provides that no motor carrier shall permit or require any driver
to drive more than ten hours following eight consecutive hours
off duty.  The record documents that Complainant's September 19-
20 dispatch, as scheduled, would have taken well beyond ten hours
of driving time.  See, e.g., T. at 40, 377, 437.  A
driver is protected in refusing to drive a dispatch that
contemplates a violation of the hours-of-service regulations. 
Boone, 987 F.2d at 1004.  Accordingly, Complainant
was protected in refusing to continue the dispatch.  I also agree
with the ALJ's reasoning that Complainant was suspended on
September 20 based solely on this protected refusal to drive and
not on Complainant's delinquent logs, as alleged by Respondent. 
I add that I also am persuaded that Respondent's explanation is a
pretext because Respondent failed to follow its own written
procedure -- Complainant's logs were submitted fifteen days late
whereas Respondent's written policy provides that a driver will
be suspended if his logs are submitted twenty days late.  T. at
403; Complainant's Exhibit 19; see DeFord v. TVA,
700 F.2d 281, 287 (6th Cir. 1983). 
     The ALJ found, on the other hand, that the record fails to
substantiate that Complainant's discharge was motivated by
retaliatory animus.  According to the ALJ, Complainant
established a prima facie case that his termination was based on
his threat to report his suspension and Respondent's improper
logging procedures to the Department of Transportation.  R.D. at
11-12.  He concluded, however, that Complainant was discharged
for insubordination -- his failure on November 6 to report to
work or to notify the proper officials as told.  I agree that
Complainant failed to establish a retaliatory discharge based on
his protected complaints under Section 2305(a).  I also have
considered Complainant's arguments that he was fired because of a
protected refusal to drive under Section 2305(b), but I cannot
conclude that Complainant's refusal was protected.  There is
insufficient evidence in this record to make a determination
whether Complainant's run as scheduled for November 6-7 would
have constituted a violation of any safety regulation, or whether
Complainant's personal safety reasonably was at risk.  See
T. at 212-13; Boone, 987 F.2d at 1004; Robinson v. Duff
Truck Line, Inc. Case No. 86-STA-3, Sec. Dec., Mar. 6, 1987,
slip op. at 12 n. 7, aff'd, No. 87-3324 (6th Cir. 1988);
cf. D'Agostino v. B & Q Distribution Service, Inc.,
Case No. 88-STA-11, Sec. Dec., 
[PAGE 3]
May 10, 1989, slip op. at 4-7. [2] 
     Finally, after carefully considering the record and the
parties' arguments, I also accept the ALJ's assessment of
damages.  To further clarify, Respondent is not entitled to
attorney fees under the STAA.  49 U.S.C. app. § 2305(c)(2);
Abrams v. Roadway Express, Inc., Case No. 84-STA-2, Sec.
Dec., May 23, 1985.
                               ORDER
     I accept the ALJ's decisions dated July 30, 1993, and
January 21, 1994, as elaborated herein, and expressly adopt his
order, S.R.D. and O. at 7, in its entirety.  In addition,
Complainant is entitled to interest calculated in accordance with
26 U.S.C. § 6621 (1988).  Dutile v. Tighe Trucking,
Inc., Case No. 93-STA-31, Sec. Ord., Mar. 30, 1994; Asst Sec. 
and Anderson v. Jonick and Co., Inc., Case No. 93-STA-6, Sec.
Dec., Sept. 29, 1993, slip op. at 2.
     SO ORDERED.

                              ROBERT B. REICH
                              Secretary of Labor


Washington, D.C.





[ENDNOTES]
           
[1]   In the absence of any prior explanation or reference, the
ALJ did not err in refusing to accept into the record late
evidence submitted by Complainant.  29 C.F.R. §§
18.54(c), 18.55 (1993); cf. Eisner v. United States
EPA, Case No. 90-SDW-2, Sec. Dec., Dec. 8, 1992, slip op. at
6 n.5.
 

[2]   I reject the argument that Red Arrow Corporation is not
properly a Respondent in this case.  The employment arrangement
here is similar to the arrangement in Palmer v. Western Truck
Manpower, Inc., Case No. 85-STA-16, Sec. Dec., Mar. 13, 1992,
slip op. at 2-3, aff'd, No. 92-70231 (9th Cir., Nov. 3,
1993), and Red Arrow is a joint employer who is liable for
damages.  T. at 427; Palmer slip op. at 3-6; see
also White v. "Q" Trucking Co., Case No. 93-STA-28,
Sec. Ord., Mar. 7, 1994, slip op. at 3.