DATE: February 15, 1995
CASE NO. 94-STA-07

IN THE MATTER OF

AARON N. WILLIAMS,

          COMPLAINANT,

     v.

CARRETTA TRUCKING, INC.,

          RESPONDENT.


BEFORE: THE SECRETARY OF LABOR


                            DECISION AND ORDER

     Complainant Aaron Williams alleges that Respondent Carate
Trucking, Inc. (Carate) violated the employee protection
provision of the Surface Transportation Assistance Act of 1982,
49 U.S.C.A. § 31105 (West 1994) (STAA), when it discharged
him from his position as a truck driver.  The findings of fact in
the Administrative Law Judge's (ALJ's) Recommended Decision and
Order (R.D. and O.) are supported by substantial evidence on
the record as a whole and therefore are conclusive.  29 C.F.R.
§ 1978.109(c)(3) (1994).  The ALJ's recommendation to
dismiss the complaint is adopted.
                        MOTION FOR LEAVE TO RESPOND
     Williams has not opposed Carate motion for leave to
respond to his brief to the Secretary.  Accordingly, the motion
is granted and Carate letter-brief dated December 9, 1994, is
accepted.
                            FACTUAL BACKGROUND
     Carate fleet was composed of older Peterbilt brand
tractors and newer Freightliner models.  T. 273-274.  During
Williams' training period as a Carate driver, he and a trainer
drove a Freightliner tractor that routinely passed the pre-trip
safety inspection.  T. 58-60.  Other Carate drivers complained
[PAGE 2]
about the frequency of breakdowns in the Peterbilt tractors and
Williams saw many that had broken down.  T. 60-67.
     The company worked on a forced dispatch system under which
any driver who refused an assignment when he had available
driving hours[1]  was considered to have resigned.  T. 179; RX 11
at 8.
     Williams complained to driver-manager Hector Hernandez that
the Peterbilt tractor assigned for his first solo drive did not
meet DOT Safety standards.  T. 74-79, 83-85, 88-89.  Hernandez
told Williams nevertheless to take the tractor because of time
constraints on delivering a load.  T. 84.  The tractor's brakes
malfunctioned several times during the trip and caused Williams
frequently to request repairs.  T. 85-87, 89-91, 94-95.
     After some days off to attend a funeral, on July 12, 1993,
Williams appeared unexpectedly at Carate main terminal for his
next driving assignment.  T. 99.[2]   Hernandez produced a
list of two Peterbilt tractors and asked Williams to perform a
pre-trip inspection on them and inform Hernandez which tractor he
chose.  T. 100.  Williams told Hernandez about his bad experience
with a Peterbilt model, said that Peterbilts were "pieces of
junk," and asked for a Freightliner.  T. 101, 237, 258-259.
Williams did not examine the vehicle condition reports (VCRs)
of,[3]  or perform a pre-trip safety inspection on, either of the
tractors.  T. 236-237, 248-249, 258-259.  Since there were no
Freightliners available, Hernandez asked Williams to report back
to work the next morning.  T. 101-102.
     When Williams reported on July 13, 1993, Hernandez again
assigned him a Peterbilt tractor, CX 26, 27, and Williams again
asked to be assigned a Freightliner.  T. 108.  Later that day, in
a meeting with the director of human resources, Jim Simmons, and
the director of operations, Kenneth Godek, Williams asked to be
assigned a vehicle that would pass a DOT safety inspection.
T. 123-124, 126.  Godek maintained that the Peterbilt tractor
assigned to Williams met DOT standards and that if Williams did
not accept the tractor, the company would consider that a
resignation.  T. 127.  Williams told Simmons and Godek that he
would immediately take any assigned vehicle to a highway weigh
station for a DOT inspection.  Id.  Simmons replied that
Carate would not permit its drivers to do so.  Id.  Godek
said that for safety reasons he would not assign Williams a load
and that Williams needed time to cool off.  T. 129-130.  Williams
denied that he had refused to take an assigned tractor.  T. 129.
     After the meeting ended, Hernandez informed Simmons that on
the previous day Williams was given the option of choosing
between two vehicles and that he refused to inspect or drive
either one.  T. 133, 194.  Simmons discharged Williams for
refusing to drive and for giving inaccurate information about
[PAGE 3]
whether vehicles had been assigned to him.  T. 134, 195; RX 15.
                                DISCUSSION
A. Williams' Protected Activity
     The "complaint" section of the STAA, 49 U.S.C.A.
§ 31105(a)(1)(A), prohibits discharging an employee because
"the employee. . . has filed a complaint or begun a proceeding
related to a violation of a commercial motor vehicle safety
regulation, standard, or order, or has testified or will testify
in such a proceeding."
     The STAA's complaint section protects employees' safety
complaints to managers.  Yellow Freight Sys., Inc. v.
Reich, 27 F.3d 1333 (6th Cir. 1994); Yellow Freight Sys.,
Inc. v. Reich, 8 F.3d 980, 986 (4th Cir. 1993).  I find that
Williams engaged in  protected activity when he complained to his
superiors about the safety defects in the tractor assigned for
his first solo trip. See R.D. and O. at 5.
     Previously I have held that threats to enforce safety and
environmental statutes are protected under the analogous employee
protection provisions of those statutes.  E.g.,
Mandreger v. Detroit Edison Co., Case No. 88-ERA-17, Sec.
Dec. and Ord., Mar. 30, 1994, slip op. at 14 (Energy
Reorganization Act of 1974) and Helmstetter v. Pacific Gas &
Elec. Co., Case No. 91-TSC-1, Dec. and Remand Ord., Jan. 13,
1993, slip op. at 7 (Toxic Substances Control Act).  Employee
protection provisions protect preliminary steps to commencing or
participating in a proceeding when those steps "could result in
exposure of employer wrongdoing."  Poulos v. Ambassador Fuel
Oil Co., Case No. 86-CAA-1, Dec. and Ord. of Rem., Apr. 27,
1987, slip op. at 6 (Clean Air Act).  A threat to enforce motor
carrier safety regulations similarly should be protected under
the STAA's employee protection provision.
     Inspectors at highway weigh stations are authorized to
remove from service any vehicles that do not pass a DOT safety
inspection.[4]   Seeking such an inspection is a means to enforce
motor carrier safety regulations.  I therefore find that
Williams' threat was an additional protected activity under the
STAA's complaint section.
     Williams also argues (Comp. Mem. at 37-40)[5]  that his
declination to drive Peterbilt tractors was protected under the
"refusal to drive" provisions of the STAA.  Those provisions
prohibit discharging an employee because:
     (B) the employee refuses to operate a vehicle because--
          (i) the operation violates a regulation, standard,
     or order of the United States related to commercial
     motor vehicle safety or health; or
          (ii) the employee has a reasonable apprehension of
[PAGE 4]
     serious injury to the employee or the public because of the
     vehicle's unsafe condition.

49 U.S.C.A. § 31105(a)(1)(B) (West 1994).
     To be protected under subsection (i), the complainant must
show that operating the vehicle would have caused an actual
violation of a motor carrier safety regulation; it is not
sufficient that the driver had a reasonable belief about a
violation.  Yellow Freight Sys., Inc. v. Reich, 38 F.3d 76
(2d Cir. 1994); Yellow Freight Sys., Inc. v. Martin, 983
F.2d 1195, 1199 (2d Cir. 1993); Robinson v. Duff Truck Line,
Inc., Case No. 86-STA-3, Final Dec. and Ord., Mar. 6, 1987,
slip op. at 12-13, aff'd sub nom. Duff Truck Line, Inc.
v. Brock, No. 87-3324 (6th Cir. June 24, 1988).  Since
Williams admittedly did not inspect the assigned vehicles or
their VCRs, T. 236-248, he did not make any showing that
operating those vehicles would have violated a safety regulation. 
R.D. and O. at 7.
     The STAA defines the tests for protection of a refusal to
drive under the "reasonable apprehension" provision of subsection
(ii) as follows:
     [A]n employee's apprehension of serious injury is
     reasonable only if a reasonable individual in the
     circumstances then confronting the employee would
     conclude that the unsafe condition establishes a real
     danger of accident, injury, or serious impairment to
     health.  To qualify for protection, the employee must
     have sought from the employer, and been unable to
     obtain, correction of the unsafe condition.

49 U.S.C.A. § 31105(a)(2).
     Again, Williams' failure to inspect the vehicles or their
VCRs is critical.  Absent such inspection, a reasonable
individual in Williams' circumstances could not conclude that a
vehicle had an unsafe condition that would pose a real danger.
Further, by not bringing any defects to Carate attention,
Williams made no attempt to seek correction of any unsafe
conditions.  For these reasons, I find that Williams did not show
that his refusal to drive was protected activity.  R.D. and O.
at 7.
     B. Adverse Action and Causation
     Simmons was aware of the safety complaints when he fired
Williams, which clearly was an adverse action.  Since the
discharge occurred immediately after Williams voiced his safety
complaints, Williams raised the inference that his protected
activities motivated the discharge.  See Toland v.
Werner Enterprises, Case No. 93-STA-22, Sec. Dec. and Ord.,
Nov. 16, 1993, slip op. at 3 (inference of causation established
where
[PAGE 5]
complainant discharged same day that he made safety complaints).
     C. Carate Reasons for Discharge
     Carate met its burden to articulate a legitimate,
nondiscriminatory reason for Williams' discharge by explaining
that the company discharged him for refusing assignments and for
denying that any vehicles had been assigned to him on his last
two days of work.  R.D. and O. at 7.
     Williams has the burden of persuasion to establish that
Carate stated reasons for firing him were a pretext and that
the real reason was retaliation for his protected activities.
See Nolan v. AC Express, Case No. 92-STA-37, Dec.
and Rem. Ord., Jan. 17, 1995, slip op. at 10-11.  Williams
asserts pretext on several grounds.  He contends that
inconsistencies in the handwritten (CX 27) and typed versions (CX
26) of the memorandum Hernandez wrote indicated that Carate
"doctored" the memorandum "to justify the termination."  Comp.
Mem. at 30.  Hernandez credibly testified that he needed to check
the identification numbers of the two vehicles he had assigned to
Williams on July 12.  Hernandez explained that he left the space
for the vehicle numbers blank in the handwritten version and
later provided the numbers to the typist.  T. 229, 231.[6]   A
comparison of the memoranda reveals that most of the changes
simply corrected grammar and punctuation.  I find that Hernandez
adequately explained the discrepancies between the two versions.
See R.D. and O. at 6.
     Likewise, I do not credit Williams' claim of pretext because
the two vehicles assigned to him on July 12 and 13 would not have
passed a pre-trip inspection.  Comp. Mem. at 31-34.  Williams did
not even glance at the vehicles, let alone perform a pre-trip
safety inspection.  No one testified as to the meaning of dates
on the repair records of the vehicles.  Therefore, Williams'
belief (Comp. Mem. at 33) that the vehicles were not repaired
until after July 13 is based on pure conjecture.  See R.D.
and O. at 6 n.9.  Hernandez reasonably believed that the trucks
were ready to be driven because Carate equipment manager provided
the numbers of the two vehicles to him.  T. 238.
     Finally, Williams asserts that firing him for refusing to
drive was a pretext because Carate prohibited him from driving
on July 13.  Comp. Mem. at 26-28.  I agree that Carate
ultimately prevented Williams from making a pre-trip inspection
and from driving any vehicle that day, as the transcript of the
taped meeting reveals.
     Williams:  Well, I'll look at the vehicle and see if it
     meets the [DOT] specs and I'll take it straight to the
     weight [sic] station and ask them to give it a DOT
     inspection there.
[PAGE 6]
     Simmons: It's not going to happen.

                                   * * *

     Simmons: We have certified mechanics that -- that do
     our trucks here.  They are certified to say whether
     it's DOT qualified or not.  We cannot allow our drivers
     to start running around the country going to DOT
     locations to have it certified. . . .

                                   * * *

     Godek: . . . I don't want this man going out right now
     on any type of delivery.  I'm stopping him from running
     right now with Safety. . . .  I am not going to put 
     Mr. Williams under a load right now as the director of
     safety.  I'm pulling him off of active duty until this
     situation can be resolved because he cannot have this
     type of angry and hostile situation going out on the
     road with an 80,000 pound guided missile, which is one
     of our trucks.

T. 127-129.  I find that Williams established that citing his
July 13 refusal to drive was a pretext and that Carate had an
impermissible reason for discharging him, his threat to take any
assigned vehicle to a weigh station for a DOT safety inspection.
     The record shows, however, that on July 12 Williams had
refused to drive either of two assigned vehicles.  Carate
convincingly demonstrated that it had an established, written
policy that drivers who refused assignments when they had
sufficient hours were deemed to have resigned voluntarily.
T. 179; RX 11 p. 8.  It is understandable that Carate did not
discharge Williams at the time of his July 12 refusal to drive.
That day Williams spoke only to Hernandez, who did not have
authority to discharge employees.  T. 239.  Carate discharged
Williams promptly after an employee who had authority to fire,
Simmons, learned about Williams' July 12 refusal and heard
Williams deny that he had refused an assigned vehicle.  I find
that Williams' July 12 refusal to inspect or drive the assigned
vehicles constituted a legitimate reason to discharge him under
the company's forced dispatch policy.
     D. Dual motive analysis
     When an employer's adverse action was motivated by both
prohibited and legitimate reasons, the dual motive doctrine
applies.  McKennon v. Nashville Banner Publishing Co.,
1995 U.S. LEXIS 699 (Jan. 23, 1995); Mt. Healthy City Sch.
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977).  In a
dual motive case,
[PAGE 7]
the employer has the burden to show by a preponderance of the
evidence that it would have taken the same action concerning the
employee even in the absence of protected conduct.  Mt.
Healthy, 429 U.S. at 287; Price Waterhouse v. Hopkins,
490 U.S. 228, 252 (1989) (plurality opinion); Yellow Freight
Sys., Inc. v. Reich, 27 F.3d 1133, 1137, 1140 (6th Cir.
1994); Passaic Valley Sewerage Comm'rs v. Department of
Labor, 992 F.2d 474, 481 (3d Cir.), cert. denied, 114
S.Ct. 439 (1993).
     The company's unequivocal policy that refusal of an
assignment constitutes voluntary resignation has convinced me
that Carate would have fired Williams for his July 12 refusal
to drive even if he never complained about the safety of
Carate vehicles or threatened to take assigned vehicles to a
DOT inspection.  I find that Carate sustained its burden under
the dual motive analysis.
                                CONCLUSION
     Carate has shown that it legitimately would have
discharged Williams even if he had not engaged in activities
protected under the STAA.  Therefore, the complaint is DISMISSED.
     SO ORDERED.
                              ROBERT B. REICH
                              Secretary of Labor
Washington, D.C.


[ENDNOTES]
           
[1] 
  A Department of Transportation (DOT) safety regulation limits
the driving and on duty hours of truck drivers.  49 C.F.R.
§ 395.3 (1993).

[2] 
  Carate usual practice was to telephone drivers to inform
them when to report to work.  T. 187.

[3] 
  Carate required that vehicle condition reports be left in
the cab at the end of the work day.  T. 248.  See
also 49 C.F.R. § 396.11 (1993) (DOT regulation
requiring vehicle condition reports).

[4] 
  See Harris v. Apaca Van Lines, Case No.
91-STA-39, ALJ Recommended Dec. and Ord., June 17, 1992, slip op.
at 4, adopted in Sec. Final Dec. and Ord., Aug. 31, 1992.

[5] 
  Reference is to Complainant's Memorandum of Law in Support
of a Reversal of the Recommended Decision, filed before the
Secretary.

[6] 
  Williams testified that on July 12, Hernandez examined a
computer and jotted down the identification numbers of two
vehicles for Williams to inspect.  T. 100.  I do not find it
suspect that Hernandez could not recall the identification
numbers of the two assigned vehicles when he later drafted a
memorandum concerning his interactions with Williams.