DATE:   August 31, 1992
CASE NO. 92-STA-17

IN THE MATTER OF

DENNIS W. JACOBSON,

          COMPLAINANT,

     v.

BEAVER TRANSPORTATION, INC.,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     This case arises under Section 405 (employee protection
provision) 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 
May 26, 1992, by the Administrative Law Judge (ALJ).  Upon
reviewing the case record, I find the ALJ's factual statement,
R.D. and O. at 2-4, to be supported by substantial evidence, and
I adopt it. [1]   29 C.F.R. § 1978.109(c)(3) (1991).  The
ALJ's statement of the applicable legal standard also is
accurate.  R.D. and O. at 5.  I do not agree with the ALJ's
analysis, however, and I hereby modify his recommendation, R.D.
and O. at 6, in accordance with the following discussion.
     Complainant Dennis Jacobson was employed as a school bus
driver and mechanic by Marvin Hanson for four years prior to
Hanson's August 20, 1990 sale of the Cumberland, Wisconsin,
school buses to Respondent Beaver Transportation, Inc.  Jacobson
had been the subject of numerous complaints by the Cumberland
School District and parents of the students he transported
regarding his driving practices and supervision of the students. 
The record documents written complaints in May, August, and
October 1989.  See Exhs. R-1 through R-4.  Problems
continued through the spring and summer of 1990.  Exh. R-5. 
After his 
[PAGE 2]
application for a management position was denied, Jacobson
developed a record of tardiness and absenteeism, receiving a 
one-day suspension for unauthorized absence on November 29, 1990. 
On December 12, 1990, Jacobson filed a safety complaint with the
Occupational Safety and Health Administration (OSHA), a workplace
inspection was conducted by the agency on December 27, and it
issued Respondent citations on January 7, 1991. [2]   School
District and parental complaints escalated in December 1990 and
January 1991 regarding the situation on Jacobson's bus.  Exh. R-6
at 4-7, Exhs. R-7, R-8.  On January 9, 1991, Jacobson was
discharged.
     As the ALJ correctly noted, R.D. and O. at 5, a STAA
complainant must show that he engaged in protected activity, that
he was subjected to adverse action, and that the respondent was
aware of the protected activity when it took adverse action.  A
complainant also must present evidence sufficient to raise the
inference that the protected activity was the likely reason for
the adverse action.  Roadway Exp., Inc. v. Brock, 830 F.2d
179, 181 n.6 (11th Cir. 1987).  An employee is protected under
STAA Section 405(a) if he "has filed any complaint or instituted
or caused to be instituted any proceeding relating to a violation
of a commercial motor vehicle safety rule, regulation, standard,
or order . . . ."  49 U.S.C. app. § 2305(a).  A respondent
may rebut a complainant's prima facie showing described above by
producing evidence that the adverse action was motivated by a
legitimate, nondiscriminatory reason.  A complainant then must
establish that the reason proffered is not the true reason for
the action.
     Although Jacobson successfully made a prima facie showing of
unlawful discrimination, he did not prevail on his ultimate
burden of persuasion.  Jacobson engaged in the protected activity
of filing with OSHA a complaint "relating to" a commercial motor
vehicle safety standard.  See Yellow Freight System,
Inc. v. Martin, 954 F.2d 353, 355-357 (6th Cir. 1992).  His
complaint concerned conditions in the school bus maintenance
shop, including inadequate equipment for tire repair and the
absence of exhaust hoses.  T. 11, 16, 53; R.D. and O. at 4.  The
condition of a vehicle's tires clearly relates to its safety, and
a driver/mechanic's exposure to exhaust fumes could adversely
affect his ability to operate his vehicle safely and to maintain
vehicles correctly.  See generally, 49 C.F.R.
§§ 392.3, 392.7 393.75, 396.3(a)(1), 396.7(a), 396.13
(1991).  Jacobson's discharge indisputably constituted adverse
action.  The evidence also supports an inference of causation. 
Jacobson's discharge closely followed his OSHA complaint, and
Respondent more likely than not suspected that Jacobson--its only
mechanic and, of its 18 employees, the one most familiar with
shop conditions--was the employee complainer.  Couty v.
Dole, 886 F.2d 147, 148 (8th Cir. 
[PAGE 3]
1989).
     Respondent then articulated a legitimate, nondiscriminatory
reason for discharge which Jacobson failed to prove was
pretextual.  Bob Skinner, Respondent's president and owner, who
purchased Hanson's buses in August 1990, and his manager, Paul
DeFlorin, made considerable effort to improve the situation on
Jacobson's Bus No. 9 during late October, November, and December
1990.  Exh. R-6 at 3-7.  They were unsuccessful.  Jacobson's
tardiness continued, he was suspended in late November for
absenteeism, and he remained resistant to complying with
employment procedures instituted by the new ownership. 
Immediately following OSHA's inspection in late December,
DeFlorin took steps to abate existing violations, including by
installing exhaust hose in the maintenance shop.  Exh. R-6 at 7. 
DeFlorin testified about his decision to discharge Jacobson.

     Q.   When was the decision made to terminate       
          Mr. Jacobson?

     A.   [I]t was after the events that occurred on
          [January 7, 1991.]  [H]e was supposed to have
          showed up for work because there was things
          to do and he didn't show up until about 10:00
          a.m. and he was changing an alternator on Bus
          14 and since OSHA had been there . . . we'd
          bought a lot of the equipment that . . . had
          to be installed in the shop . . . .  [O]ne of
          the items we purchased was exhaust hose and I
          was sitting in the office and the fumes in
          there was getting really bad and I come out
          and asked him why the bus was running without
          this exhaust hose . . . .  He said, "I just
          shut it off."  I told Bob, I said, "I'm all
          through trying. . . .  I just can't do my job
          . . . like I'm suppose[d] to. . . ." 
          [T]hings just didn't change. . . .  I said,
          "Bob, I can't deal with it anymore."

T. 51-52, 57.  DeFlorin thus discharged Jacobson because of his
recalcitrance evidenced by the incident on January 7, when he
appeared to resist using required safety controls.  I expressly
reject the ALJ's contrary finding that "the filing of the OSHA
complaint by Jacobson was a major factor in the decision to
terminate."  R.D. and O. at 6 and n.3.  Substantial record
evidence does not support the ALJ's finding, 29 C.F.R. 
§ 1978.109(c)(3), and no explanation or support is provided.
[3] 
     Accordingly, the complaint of unlawful discrimination IS 
[PAGE 4]
DISMISSED.
     SO ORDERED.

                              LYNN MARTIN
                              Secretary of Labor

Washington, D.C.


[ENDNOTES]
           
[1]   The conclusion contained in the final phrase of footnote 2,
R.D. and O. at 4, is modified to reflect that portions of
Complainant's complaint "related to" violations of commercial
motor vehicle standards.  See infra at 3-4.

[2]   The citations were mailed to Respondent.  Manager Paul
DeFlorin testified that he received them after January 7 and
posted them in the workplace during the following week.  Hearing
Transcript (T.) 58.


[3]   The position of footnote 3 in the R.D. and O. suggests
that, in finding illegal motivation, the ALJ erroneously may have
considered knowledge of protected activity dispositive.