DATE: November 22, 1995
CASE NO. 95-STA-28


IN THE MATTER OF

RAY TANGUAY,

          COMPLAINANT, 

     v. 

WESTSIDE TRANSPORT, INC.,

          RESPONDENT.


BEFORE: THE SECRETARY OF LABOR


                   FINAL DECISION AND ORDER

     Before me for review is the Decision and Order (D. and O.)
issued on July 28, 1995 by the Administrative Law Judge (ALJ) in
this case arising under the employee protection provision of the
Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C.A.
§ 31105 (West 1994).  Complainant Ray Tanguay (Tanguay)
alleges that Respondent Westside Transport, Inc. (Westside)
violated the STAA by discharging him for refusing to haul a
trailer overloaded with tomatoes.  After a review of the entire
record I accept the decision of the ALJ and find a violation of
the STAA.
BACKGROUND
     Westside is a commercial motor vehicle carrier engaged in
interstate commerce.  Tanguay was hired by Westside on or about
July 25, 1994 as a "seasonal agricultural driver."  On August 6,
1994, Tanguay was dispatched to a field to pick up a trailer
containing tomatoes, which he found to be spilling over the edges
of the trailer.  His concern regarding the safety of the load
prompted him to contact John Alvarez (Alvarez), Westside's field
representative, to get help in rearranging the tomatoes before
taking them on the road.  Tanguay spent about 40 minutes 
[PAGE 2]
rearranging the load while waiting for help. 
     Alvarez arrived at the field and proceeded to hook Tanguay's
truck to a second load of tomatoes, which Tanguay also believed
was unsafe.  Tanguay explained his concern about the overloaded
trailers and mentioned that he had been cited previously by the
California Highway Patrol (CHP) for a similar infraction while
under Westside's employ.  Tanguay also complained of chest pains
incurred during his efforts in rearranging the tomatoes.  Alvarez
told Tanguay "if you're not going to cooperate, the company
doesn't need you," or words to that effect, and told him to stop
rearranging the second load.  Transcript (T.) at 46, 60-65.
Tanguay interpreted this as meaning that he was fired by Alvarez,
and thereafter turned in his truck and all appropriate paperwork. 
When he telephoned Westside a few days later to request a State
workers' compensation form, he was not corrected when he
mentioned that he had been "fired."
     Tanguay filed a complaint with the Department of Labor,
which was investigated and found to have no merit.  He appealed
that decision, and a hearing was held on June 29, 1995 in
Monterey, California.  Tanguay repeated his allegations. 
Westside did not present any witnesses to rebut or contradict his
testimony regarding the events that took place on August 6, 1994.
The ALJ noted that "an adverse inference must be drawn from
respondent's election not to call [Alvarez] to testify to rebut
complainant's version of events."  D. and O. at 3, n. 3.[1]   
The ALJ, finding that Tanguay did not quit, ruled that operation
of the vehicle Tanguay refused to drive would have constituted a
violation of both state and Federal law, and Tanguay was
therefore discharged in violation of the employee protection
provision of the STAA.  
DISCUSSION
     The findings of fact by the ALJ are supported by substantial
evidence on the record as a whole and therefore are conclusive. 
29 C.F.R. § 1978.109(c)(3)(1994), Moon v. Transport
Drivers, Inc., 836 F.2d 226, 229 (6th Cir. 1987).  I agree with the
ALJ's conclusions regarding the history of events, and the record
as a whole supports his decision regarding the condition of the
vehicle Tanguay refused to operate.[2]   Under the "refusal to
drive" provision of the STAA, an employer may not discharge 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 3]
    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).  
     The record supports the ALJ's conclusion that the trailer
was in an unsafe condition, thus Tanguay's refusal to drive until
the load was rearranged was protected conduct.  I also agree with
the ALJ's conclusion that Tanguay did not quit, but was fired by
Westside.  Tanguay was under the impression that after
redistributing the second load, he could proceed to drive, but
Alvarez told him to stop altogether. T. 41-53.  Tanguay was not
told to perform another task at that time, which would lead him
to believe that he was fired.  When turning in his paperwork
Tanguay asked to speak to Jim McAbee (McAbee), the operations
manager and head of dispatching.  Tanguay testified that McAbee
was present that day but "would not come to the window."  T. 54. 
Roy Graham, Westside's representative at the June 29, 1995
hearing, stated that McAbee had the authority to fire Tanguay. 
This was another indication to Tanguay that he had been fired.  I
conclude that Westside fired Tanguay because of his protected
activities. 
     49 U.S.C. §31105(b)(3)(A)(iii) provides for the award
of backpay.  Kenneth Fry, Westside's safety director, testified
that the tomato season runs approximately from July 1st to late
September, with a decline in the number of drivers employed
starting in mid-September.  T. 92.  This indicated to the ALJ
that Tanguay, as a seasonal driver, would have worked for
Westside for five weeks subsequent to his discharge, earning
$560.00 per week.  I agree with the ALJ's calculation. Westside
is therefore ordered to pay backpay in the amount of $2,800.00. 
Westside is ordered to pay interest on the foregoing amount to be
calculated pursuant to 26 U.S.C. §6621, and to accrue until
such time as the backpay amount is paid.  Tanguay is also
permitted a period of 20 days from the date of this order in
which to submit to the Secretary any petition for fees and
expenses incurred in connection with the bringing of this
complaint.  See 49 U.S.C. §31105(b)(3)(B).  Respondent
thereafter may respond within 30 days of the date of this order. 
All filings shall be submitted to the Office of Administrative
Appeals, Room S-4309, U.S. Department of Labor, 200 Constitution
Avenue, N.W., Washington, D.C. 20210.
     SO ORDERED.

                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.


[ENDNOTES]
           
[1]   Alvarez was employed by Westside on the date of the
hearing, and Westside could have presented his side of the story
to rebut Tanguay's contentions.

[2]  The ALJ cites 29 C.F.R. §392.9(b), which requires
drivers of trucks and truck tractors to "examine the vehicle's 
cargo . . . and cause any adjustments to be made to the 
cargo . . . as may be necessary to maintain the security of the
vehicle's load."