DATE:  January 24, 1995
CASE NO. 93-STA-00030


IN THE MATTER OF

ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH,

          PROSECUTING PARTY,

     and

JOHNNY E. BROWN,

          COMPLAINANT,

     v.

BESCO STEEL SUPPLY,

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR

                            DECISION AND ORDER
     Complainant Johnny E. Brown alleges that Respondent Besco
Steel Supply (Besco) violated the employee protection provision 
of the Surface Transportation Assistance Act of 1982, 49 U.S.C.A.
§ 31105 (West 1994) (STAA) when it fired him for making
complaints about, and refusing to work, long hours in violation
of a Federal motor carrier safety regulation.  The findings of
fact in the Administrative Law Judge's (ALJ's) Recommended
Decision and Order (R.D. and O.), at 3-9, are supported by
substantial evidence on the record as a whole and therefore are
conclusive.  29 C.F.R. § 1978.109(c)(3) (1993).  The ALJ's
decision is affirmed and the case is dismissed.
                             BACKGROUND
     Brown worked as a truck driver delivering steel for Besco.  
Each day after making deliveries in and near Birmingham, Alabama,
[PAGE 2]
Brown's truck was loaded with deliveries for Walker County, north
of Birmingham.  Brown delivered Walker County loads at night,
drove the truck home, and sometimes completed the Walker County
deliveries in the morning before heading back to Besco.  Brown
testified that he worked between 55 hours and 70 hours a week and
complained to the company's managers and owners that he was
falling asleep at the wheel due to the long hours.  
     On his last day of work, Brown completed some Walker County
deliveries in the morning and went to Besco's office.  He
surreptitiously recorded a conversation in which he told Besco's
co-owners that he would not do the Walker County run any more,
although he was willing to work a regular length day.  The owners
understood that Brown was quitting his job, but Brown contended
that he was fired.  
                             DISCUSSION
     A. The establishment of a prima facie case
     Under STAA section 405(a), it is unlawful to discharge an
employee because he 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."  49 U.S.C.A. § 31105(a) (West 1994). 
The relevant portion of section 405(b) prohibits the discharge of
employees for refusing to operate a vehicle because "the
operation violates a regulation, standard, or order of the United
States related to commercial motor vehicle safety or 
health. . . ."  49 U.S.C.A. § 31105(a)(1)(B)(i).
     The first element of a prima facie case of a STAA violation
is showing that the complainant engaged in activities protected
under the act, Paquin v. J.B. Hunt Transport, Inc., Case
No. 93-STA-00044, Sec. Dec. and Ord., July 19, 1994, slip op. at
4,  by making safety complaints and/or refusing to drive because
of a safety issue.  Brown testified that he complained to Besco's
co-owner Dan Levan, dispatcher Bill Davis, and shop foremen Joe
Partridge and Tommy McCarthy that he was falling asleep on the
job because of the long hours.  T. 64-65.  Brown's complaints to
his managers about the long hours and resulting fatigue was
sufficient to establish a prima facie case that he made protected
complaints under STAA section 405(a).  See Reemsnyder
v. Mayflower Transit, Inc., Case No. 93-STA-4, Dec. and Ord.
on Reconsideration, May 19, 1994, slip op. at 9 (STAA protects
internal safety complaints to managers).
     Refusing to drive when the contemplated run would cause the
driver to violate the Federal hours of service regulation is a
protected activity under subsection (a)(1)(B)(i).  Trans Fleet
Enterprises, Inc. v. Boone, 987 F.2d 1000, 1004 (4th Cir.
1992). The driver must inform his employer of the safety basis
for the refusal.  Paquin, slip op. at 5; Ass't Sec. and
Waldrep v. 
[PAGE 3]
Performance Transport, Inc., Case No. 93-STA-23, Sec. Dec.
and Ord., Apr. 6, 1994, slip op. at 8 (complainant's remark to
employer about no longer driving "illegally" sufficient to
establish protected refusal to drive).  To come within the
protection of this provision, the complainant must also show that
an actual violation of a regulation would have occurred; it is
not sufficient that the driver had a reasonable belief about a
violation.  Yellow Freight System, Inc. v. Reich, 38 F.2d
76 (2d Cir. 1994); 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, Duff Truck Line, Inc. v. Brock, No. 87-
3324 (6th Cir. June 24, 1988).     Brown's rather cryptic
statement that he was no longer willing to do the Walker County
run, but was willing to work a 10-hour day, must be considered in
the context of Brown's entire testimony.  He stated that he
delivered loads in and around Birmingham beginning at 6:30 a.m.,
T. 50, then took a load to destinations in and around Walker
County, and sometimes did not finish work until 9:00 or 10:00
p.m.  T. 53.  Brown further stated that he typically worked from
55 to more than 70 hours per week (Monday through Friday).  T.
64.
     A Federal motor carrier safety regulation provides in
relevant part that a driver may not drive "[f]or any period after
having been on duty 15 hours."  49 C.F.R. § 395.3(a)(2)
(1993).  A further limitation prohibits driving after "[h]aving
been on duty 60 hours in any 7 consecutive days if the employing
motor carrier does not operate every day in the week." 
Id. at § 395.3(b)(1). [1]   
     I find that Brown's remark to Besco's owners that he no
longer would run Walker County after a regular work day is
sufficient to establish a prima facie case that he engaged in a
protected refusal to drive under section (a)(1)(B)(i) since Brown
testified that he often had days comprising more than 15 hours
on-duty and worked more than 70 hours in a five day week.
     Therefore, I find that Brown made a prima facie case of
engaging in activities protected under both the complaint section
and refusal to drive section of the STAA.
     Showing that the respondent took adverse action against the
complainant is the second element of a prima facie case. 
Paquin, slip op. at 4.  According to Brown, when he told
Besco's co-owners that he would not do the Walker County run any
more, the owners replied that he could find another job and gave
him his final pay.  T. 69.  The ALJ concluded that Brown did not
establish a prima facie case that he was fired.  R.D. and O. at
14.  I disagree because Brown's testimony that he was fired was
sufficient to establish a prima facie case regarding adverse
action. [2] 
[PAGE 4]
     In view of the fact that Brown made his driving refusal to
Besco's co-owners, the company clearly was aware of Brown's
protected activities at the time of the adverse action.  Since 
the driving refusal resulted immediately in the alleged adverse
action, Brown raised the inference that his protected activity
motivated the adverse action.  See, e.g.,
Auman v. Inter Coastal Trucking Co., Case No. 91-STA-
00032, Final Dec. and Ord., July 24, 1992 (causation established
by close temporal proximity of protected activities and adverse
action).  I find, therefore, that Brown made a prima facie
showing of Besco's knowledge of his protected activities and
raised the inference that his protected activities motivated the
adverse action.
     B. The ultimate burden of persuasion
     Since Brown established a prima facie case, the burden of
production shifted to Besco to articulate legitimate,
nondiscriminatory reasons for the adverse action.  I find that
Besco sufficiently articulated a legitimate basis for its
actions, i.e., that it did not fire Brown, but simply
accepted his decision to resign.  Levan believed that Brown quit
because Brown told him, "Get my brother's check ready; he's
quitting too."  T. 301.  In addition, a mechanic who was present
also understood Brown to be quitting his job.  T. 248 (Crowe).
     The ALJ credited Levan's belief that Brown resigned
voluntarily because:
     Complainant was upset by not getting a promotion, chose
     not to approach Levan about obtaining relief on the
     Walker County run, did not follow up on the arrangement
     with [shop foreman] McCarthy to share the route, and
     entered the Besco office with the caustic statement
     that he would not do part of his job any longer. . . .

R.D. and O. at 13.  
     For the reasons quoted above, I find that Brown, although he
did establish a prima facie case that he was fired, did not
ultimately sustain the burden of persuasion in establishing that
fact.  Like the ALJ, I credit Levan's testimony that Brown
voluntarily resigned.
                             CONCLUSION
     I find that Brown did not establish that Besco took adverse
action against him because he engaged in activities protected
under the STAA.  Therefore, the complaint is DISMISSED.
     SO ORDERED.

                              ROBERT B. REICH
                              Secretary of Labor

[PAGE 5]

Washington, D.C. 


[ENDNOTES]
           
[1]  Brown testified that he usually worked Monday through
Friday, and only occasionally worked on Saturday.  T. 52.  There
was no testimony indicating that Besco drivers worked on Sundays. 


[2]  Brown's testimony, standing alone, would satisfy the adverse
action element of a STAA claim if not contradicted and overcome
by other evidence.