DATE:  November 30, 1993  
CASE NO. 93-STA-11


IN THE MATTER OF

DEAN A. TURGEON,

          COMPLAINANT,

     v.

MAINE BEVERAGE CONTAINER SERVICES, INC.,

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR



                         FINAL DECISION AND ORDER

     Before me for review is the Recommended Decision and Order
(R.D. and O.) issued by the Administrative Law Judge (ALJ) in the
captioned case, which arises under Section 405 (employee
protection provision) of the Surface Transportation Assistance
Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1988).
     Complainant Dean A. Turgeon, an over-the-road operator of
commercial motor vehicles, contends that he was discharged by
Respondent Maine Beverage Container Services, Inc., because he
engaged in a work refusal which was protected under STAA Section
405. [1]   Respondent concedes that Turgeon's work 
refusal precipitated his discharge, Hearing Transcript (T.) 190,
but argues that it failed to constitute protected activity.  The
ALJ has recommended that Turgeon should prevail on his complaint
of unlaul discrimination.  I agree with the ALJ under the
analysis set forth below.
     STAA Section 405(b) [2]  protects an employee who refuses to
operate a commercial motor vehicle "when" such operation would
violate a federal motor vehicle standard ("when" clause) or
"because" he reasonably apprehends serious injury due to the
unsafe condition of equipment ("because" clause).  The second 
[PAGE 2]
ground for refusal ("because" clause) carries the further
requirement found in the second sentence of the subsection that
the unsafe condition "causing the employee's apprehension of
injury" must be such that a reasonable person, under the
circumstances, would perceive a bona fide hazard.  Section 405(b)
further stipulates that the employee must have sought from his
employer, and have been unable to obtain, correction of the
unsafe condition.  Contrary to the ALJ's indication to the
contrary, R.D. and O. at 3, 15, these second and third sentences
of Section 405(b) limit only the second ground for refusal, i.e.,
the "reasonable apprehension" ground contained in the "because"
clause of the first sentence. [3]   Duff Truck Line, Inc. v.
Brock, No. 87-3324 (6th Cir. May 4, 1988), aff'g
Robinson v. Duff Truck Line, Inc., Case No. 86-STA-3, Sec.
Dec., Mar. 6, 1987.
     Department of Transportation (DOT) regulation 392.3
provides:

          No driver shall operate a motor vehicle, and
          a motor carrier shall not require or permit a
          driver to operate a motor vehicle, while the
          driver's ability or alertness is so impaired,
          or so likely to become impaired, through
          fatigue, illness, or any other cause, as to
          make it unsafe for him to begin or continue
          to operate the motor vehicle.
49 C.F.R. § 392.3 (1991).  DOT regulations state further
that "no motor carrier shall permit or require any driver used by
it to drive nor shall any such driver drive [m]ore than 10 hours
following 8 consecutive hours off duty; or [f]or any period after
having been on duty 15 hours following 8 consecutive hours off
duty."  49 C.F.R. § 395.3(a)(1) and (2).  The latter so-
called 10/15-hour prohibition thus provides (1) that after
spending eight consecutive hours off duty, a driver may drive no
more than ten hours, at which time he must log off duty for at
least eight consecutive hours, and (2) that a driver may not
drive after having been on duty for 15 hours.
     In making his factual findings in this case, the ALJ
generally credited Complainant Turgeon's account.  See
R.D. and O. at 15-19.  With a single exception noted below, I
adopt these findings as supported by substantial evidence on the
record considered in its entirety.  29 C.F.R. §
1978.109(c)(3) (1992).
     As a preliminary matter, the ALJ found that Respondent
routinely scheduled driving assignments that exceeded the DOT
10/15-hour limitation.  In particular,

          Respondent put pressure on Complainant to
          complete runs regardless of whether these
          runs exceeded permissible driving times under
          
[PAGE 3]
         federal regulations and to have his log book reflect 
         permissible driving times.  Respondent informed 
         Complainant that he was responsible for any fines 
         he incurred for violations of regulations and offered 
         assistance in completing his log book in a manner 
         that would avoid fines and penalties.  This offer of
         assistance came following the Complainant's log book 
         being checked in New Hampshire on October 12, 1992, 
         and the Respondent being fined because Complainant's 
         log books revealed a driving schedule not in compliance 
         with federal regulations.  Complainant reasonably 
         understood this advice from [Transportation and Sales
         Manager] Jeannie Brown as a suggestion to complete runs
         regardless of whether the runs exceeded federal regulations 
         and thereafter to enter false times into his log to keep his book
         legal and current in order to avoid fines and penalties.
R.D. and O. at 18-19 (Finding No. 24).  This finding is
consistent with Turgeon's testimony and although Manager Brown
denied requiring log falsification, she could not explain why she
would offer Turgeon assistance in presenting a different version
of previously completed logs that accurately depicted 10/15-hour
limitations violations.  T. 220-222.
     At 9:00 a.m. on November 4, 1992, Turgeon was dispatched to
complete a series of runs extending through November 5.  His
daily logs for these dates are not accurate in that they fail to
show driving and on duty time between 8:00 a.m. and 12 noon on
November 4 and driving time between about 3:30 a.m. and 6:30 a.m.
on November 5.  See CX 4 at 4-1, 4-2.  As shown below,
reconstruction of Turgeon's logged driving times compared with
estimates based on mileage between locations shows a significant
violation of the DOT 10-hour driving limitation.

LocationEstimated hours   Reconstructed hours

Portland, Maine
     to
Shrewsbury,
   Massachusetts                  2.5                                3.0
     to
Albany, New York              4.0                                3.5
     to
Dayville,
   Connecticut                      3.0                                2.5
     to
Albany, New York              3.0                                2.5
     to
Dayville,
   Connecticut                      3.0                                3.0
     to

[PAGE 4]
Portland, Maine                   3.5                               4.0

Totals                                 19.0                             18.5

     Turgeon also continued driving after he had remained on duty
for 15 hours.  Assuming that after he reached Shrewsbury,
Massachusetts, at midnight, he remained off duty until departing
for Albany, New York, at 3:30 a.m., CX 4 at 4-2, the 15-hour
limitation took effect at about 3:30 p.m. on November 5. 
Thereafter, Turgeon proceeded to Dayville, New York, and from
there returned to Portland, Maine, arriving at about 10:00 p.m. 
After refueling, unhooking the trailer, and parking the truck,
Turgeon went off duty at about 10:30 p.m.  Respondent had
scheduled Turgeon to depart Portland at 6:00 a.m. on November 6
in order to arrive at a customer location in Lewiston, Maine, an
assignment which he refused due to his fatigue from working the
previous assignment.  Had he departed as scheduled, he would have
remained off duty for only seven and one half consecutive hours,
rather than the required eight hours.  Respondent discharged
Turgeon because he refused the November 6 dispatch.
     In order to establish a prima facie case of unlawful
discrimination, a 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 the 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.  Dartey
v. Zack Co., Case No. 80-ERA-2, Sec. Dec., Apr. 25, 1983. 
Under the STAA, a complainant engages in protected activity if he
refuses to operate a commercial motor vehicle when operation
would violate a Federal motor vehicle safety regulation.  Here,
Turgeon asserts that he was too fatigued to take the 6:00 a.m.
dispatch on November 6 and that had he done so, he would have
violated 49 C.F.R. § 392.3.  A review of his assignments on
November 4 and 5 supports his claim of fatigue.  By taking the
6:00 a.m. dispatch, Turgeon also would have violated 49 C.F.R.
§ 395.3 which required him to remain off duty for eight
consecutive hours before resuming vehicle operation.
     Turgeon thus engaged in protected activity under the "when"
clause of STAA Section 405(b).  Shortly thereafter, he was
discharged -- unquestionably an adverse employment action. 
Finally, Respondent knew that Turgeon previously had completed a
grueling assignment, departing on the evening of November 4 and
driving in excess of 900 miles in the allotted period.  R.D. and
O. at 16-18 (Findings Nos. 13, 14, 15, 19, 20); R.D. and O. at 21
(second and third paragraphs).  In these circumstances, I find
that Respondent likely knew about Turgeon's fatigue.
[PAGE 5]
     In this connection, the record does not appear to support
the ALJ's finding that Turgeon attributed his work refusal to his
fatigued state in his November 5 and 6 telephone conversations
with Manager Brown and Supervisor Grover.
     Turgeon testified that in his November 5 conversation with
Brown, he simply requested that another driver be assigned the
November 6 dispatch.

     Q. And did you indicate to her at all why you wanted
     someone else to do it?

     A. Nope.  There was no sense in me telling her that I
     was over on my hours or anything like that because it
     never really mattered. . . .  Because I mentioned it
     before, she'd switch things around so I could have, you
     know, some time off, but things just a short time after
     that it would go right back to normal.

     Q. And when you say going right back to normal, what
     are you suggesting?

     A. Us going over.

     Q. Being given assignments that would go over?

     A. Yeah.

T. 51.

     Turgeon thus had complained to Brown previously about
excessive hours, and Brown temporarily had given Turgeon a break
in assignment, as she initially agreed to do on November 6.  R.D.
and O. at 17 (Finding No. 17).  After further discussion,
however, Brown and Grover decided to discharge Turgeon.  In light
of Turgeon's previous complaints about excessive hours,
Respondent's knowledge of Turgeon's lengthy dispatch on November
4 and 5, and Turgeon's November 6 explanation to Grover that he
had overslept and missed the 6:00 a.m. dispatch, I find that
Respondent likely attributed Turgeon's work refusal to his
fatigue.  I find further that in citing "lack of dependability"
as the reason for Turgeon's discharge, R.D. and O. at 17 (Finding
No. 17), Glover actually was referring to Turgeon's unwillingness
to work excessive hours regularly.
     Accordingly, Turgeon established a prima facie case of
unlawful discrimination, and Respondent failed to articulate a
legitimate, nondiscriminatory reason for discharging him. 
See n.1, supra.
                               ORDER
     Respondent, Maine Beverage Container Services, Inc., is
ordered to offer Complainant, Dean A. Turgeon, reinstatement to
his former or comparable employment; pay Complainant back wages
at a weekly rate of $600.50 less interim earnings; pay
Complainant prejudgment interest on the back wage amount; expunge
from its records all material and references pertaining to
Complainant's protected activity and discharge; and pay
Complainant's counsel, Stephen P. Sunenblick, attorney fees and
costs in the total amount of $4,946.05.
     SO ORDERED.

                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.




[ENDNOTES]
           
[1]   To prevail on a STAA whistleblower complaint, a complainant
must establish that the respondent took adverse employment action
against him because he engaged in an activity protected under
Section 405.  A complainant must show that it was likely that the
adverse action was motivated by a protected activity.  Roadway
Exp., Inc. v. Brock, 830 F.2d 179, 181 n.6 (11th Cir. 1987);
Guttman v. Passaic Valley Sewerage Comm'rs, Case No. 85-
WPC-2, Sec. Dec., Mar. 13, 1992, slip op. at 9, aff'd, No.
92-3261 (3d Cir. Apr. 16, 1993).  The respondent may rebut such a
showing by producing evidence that the adverse action was
motivated by a legitimate, nondiscriminatory reason.  The
complainant then must prove that the proffered reason was not the
true reason for the adverse action.  St. Mary's Honor Center
v. Hicks, 125 L. Ed. 2d 407, 416 (1993).

[2]   Section 405(b) provides:

     No person shall discharge, discipline, or in any manner
     discriminate against an 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, or because of the employee's reasonable
     apprehension of serious injury to himself or the public
     due to the unsafe condition of such equipment.  The
     unsafe conditions causing the employee's apprehension
     of injury must be of such nature that a reasonable
     person, under the circumstances then confronting the
     employee, would conclude that there is a bona fide
     danger of an accident, injury, or serious impairment of
     health, resulting from the unsafe condition.  In order
     to qualify for protection under this subsection, the
     employee must have sought from his employer, and have
     been unable to obtain, correction of the unsafe
     condition.

49 U.S.C. app. § 2305(b) (emphasis added).

[3]   The language of the third sentence ties protection to an
attempt to obtain correction of the unsafe condition
referenced in the "because" clause and the second sentence.