DATE:  July 13, 1995
CASE NO:  94-STA-21


IN THE MATTER 

ASSISTANT SECRETARY OF LABOR
FOR OCCUPATIONAL SAFETY AND HEALTH, 
               Prosecuting Party,

     and

ERNEST S. BOYLES,

          COMPLAINANT,

     v.

HIGHWAY EXPRESS, INC.,

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     Complainant Ernest S. Boyles alleges that Respondent Highway
Express, Inc., violated the employee protection provision of the
Surface Transportation Assistance Act of 1982, 49 U.S.C.A. 
 2305(b) (STAA) by discharging him when he refused to violate
Department of Transportation (DOT) regulations.  The DOT
regulation in question states that "no motor carrier shall permit
or require a driver of a commercial motor vehicle to drive...for
any period after...having been on duty 70 hours in any period of
eight consecutive days...."  49 C.F.R. 395.3 (b)(2).  Respondent
denies that it ever asked Boyles to drive more than seventy hours
during the eight day period leading to his discharge on 
January 14, 1993.  The findings of fact in the Administrative Law
Judge's (ALJ) Recommended Decision and Order (R. D. and O.), at
2-9, are supported by substantial evidence on the record as a
whole and therefore are conclusive.  29 C.F.R. § 1978 (c)(3)
(1983).  Additionally, I accept the ALJ's statistics and
distances, and the stipulations of the parties.  R. D. and O. at
2-3.  The analysis of the ALJ's R. D. and O. is modified as set
out below, and the case is dismissed.
                                BACKGROUND
     A hearing was held before the ALJ on June 14, 1994, and all
appropriate testimony and exhibits were received into evidence. 
R. D. and O. at 1-3.  The ALJ weighed all the evidence and
concluded that Boyles did not present a prima facie case
of a violation of the employee protection provisions of the STAA. 
R. D. and O. at 14.  Since "this case was fully tried on the
merits," it is not necessary to engage in an analysis of the
elements of a prima facie case.  USPS Bd. of Governors
v. Aikens, 460 U.S. 711, 713 (1983); Carroll v. Bechtel
Power Corp., Case No. 91-ERA-0046, Sec. Dec., Feb. 15, 1995,
slip op. at 11 n. 9, petition for review docketed, No. 95-1729 
(8th Cir. Mar. 27, 1995) (under the Energy Reorganization Act).  Once 
Highway Express produced evidence that Boyles was subjected to an
adverse action for a legitimate, nondiscriminatory reason, the answer to
the question whether a prima facie case was presented is
no longer useful.  If Boyles has not prevailed by a preponderance
of the evidence on the ultimate question of liability it matters
not at all whether he presented a prima facie case.
     Under the STAA, covered employees lawfully may refuse to
drive whenever operation of the vehicle would violate Federal
rules or regulations applicable to commercial vehicle safety.  
49 U.S.C. § 2305(b); Brame v. Consolidated
Freightways, Case No. 90-STA-20, Sec. Dec., June 17, 1992,
slip op. at 3.  Relying on 49 C.F.R. 395.3 (b)(2), Boyles
contends that his refusal to drive was protected because of his
good faith belief that making the requested trip would cause him
to exceed seventy hours of on duty time in an eight day period. 
However, to invoke protection under 49 U.S.C.A. § 2305(b), a
Complainant must prove that an actual violation would have
occurred.  Bryant v. Bob Evans Transportation, Case No.
94-STA-24, Sec. Dec., Apr. 10, 1995, slip op. at 12;
Brame, slip op. at 3; Robinson v. Duff Truck Line,
Inc., Case No. 86-STA-3, Sec. Dec., Mar.6, 1987, slip op. at
12, n.7.  Boyles refused to drive 318 miles to his assigned
delivery point at Avenel, New Jersey.  However, Boyles willingly
drove 312 miles to Respondent's warehouse in Edison, New Jersey. 
At the time Boyles arrived at the warehouse in Edison, he still
had thirty minutes remaining of his seventy available hours. 
Thirty minutes would have been more than enough time for Boyles
to have driven the additional 6 miles to Avenel for his scheduled
delivery.  
     Boyles claimed that a violation would have occurred because
of the time it would take to unload his truck.  However,
Respondent put forth sufficient evidence to show that Boyles
would have been relieved from duty upon arrival at Avenel. 
Another driver stated that he routinely logged off duty upon
arrival at Avenel.  T. 109 et seq.  Boyles did not prove
by a preponderance of the evidence that his assessment of the
situation was correct and that he would have violated DOT
regulations had he not refused to drive as scheduled.
     Accordingly, it is hereby ORDERED that the complaint be
DISMISSED.
     SO ORDERED.

                              ROBERT B. REICH
                              Secretary of Labor
Washington, D.C.