As the ALJ noted, Williams "secured books to be maintained by the drivers, but he observed that the drivers were not correctly recording defects. . . . [Williams] advised [CES's] owner, Mr. Best, of the problem. . . . [A]nd [Best] suggested that [Williams] back off since the operation was just getting going." R. D. & O. at 3. Best testified that Williams requested that he order defect books, and that Best did order them. Id. Best also testified that some of his drivers' logs were filled out improperly since the business was new and he "was kind of really going from the cuff the first couple of days." Tr. at 275- 277.
However, in evaluating Williams's protected activity, the ALJ did not address whether his complaints concerning the lack of, and subsequently the improper use of, defect logs were protected activities under STAA. The ALJ's evaluation of causation is not complete since the effect of this possible protected activity was not assessed. To properly evaluate whether protected activity contributed to CES's decision to terminate Williams's employment, all instances of protected activity must be thoroughly assessed.
[Page 9]
Conclusion
Substantial evidence supports the ALJ's finding that the September 24, 2004 complaint about the safety of a school bus did not contribute to his termination. We therefore AFFIRM the ALJ's R. D. & O. in part.
Whether CES's termination of Williams's employment violated the STAA cannot be decided without first determining if Williams's involvement with the "defect reports" constituted protected activity. We therefore REMAND for further proceedings consistent with this decision.
SO ORDERED.
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
DAVID G. DYE
Administrative Appeals Judge
[ENDNOTES]
1 The STAA has been amended since Williams filed his complaint. See Implementing Recommendations of the 9/11 Commission Act of 2007, P.L. 110-53, 121 Stat. 266 (Aug. 3, 2007). We need not decide whether the amendments are applicable to this case, because even if they were applicable, they would not affect our decision because they are not relevant to the issues presented by this case.
2 Secretary's Order 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002).
3 29 C.F.R. § 1978.109(c)(3); Lyninger v. Casazza Trucking Co., ARB No. 02-113, ALJ No. 2001-STA-038, slip op. at 2 (ARB Feb. 19, 2004).
4 Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
5 See Universal Camera Corp., 340 U.S. at 488; McDede v. Old Dominion Freight Line, Inc., ARB No. 03-107, ALJ No. 2003-STA-012, slip op. at 3 (ARB Feb. 27, 2004).
6 See Olson v. Hi-Valley Constr. Co., ARB No. 03-049, ALJ No. 2002-STA-012, slip op. at 2 (ARB May 28, 2004).
7 49 U.S.C.A. § 31105(a)(1)(A).
8 49 U.S.C.A. § 31105(a)(1)(B).
9 Bryant v. Mendenhall Acquisition Corp., ARB No. 04-014, ALJ No. 2003-STA-036, slip op. at 4 (ARB June 30, 2005).
10 49 U.S.C.A. § 31101(3)(A); See 49 U.S.C.A. § 31101(1).
11 49 U.S.C.A. § 31101(2)(A).
12 See 29 C.F.R. § 1978.101(d)(1).
13 49 U.S.C.A. § 31105(a)(1)(B); Krahn v. UPS, ARB No. 04-097, ALJ No. 2003-STA-024, slip op. at 6 (ARB May 10, 2006); Zurenda v. J & K Plumbing & Heating Co., Inc., ARB No. 98-088, ALJ No. 1997-STA-016, slip op. at 4 (ARB June 12, 1998); Williams v. CMS Transp. Servs., Inc., 1994-STA-005, slip op. at 2 (Sec'y Oct. 25, 1995).
14 See Hilburn v. James Boone Trucking, ARB No. 04-104, ALJ No. 2003-STA-045, slip op. at 3-4 (ARB Aug. 30, 2005); Regan v. Nat’l Welders Supply, ARB No. 03-117, ALJ No. 2003-STA-014, slip op. at 5 (ARB Sept. 30, 2004)(protected activity may result from "purely internal complaints to management, relating to a violation of a commercial motor vehicle safety rule, regulations, or standard").
15 CB at 2 (quoting Jacobson v. Bever, ALJ No. 1992-STA-017 (Sec'y Aug. 31, 1992).
16 Jacobson, slip op. at 2.
17 Id.
18 R. D. & O. at 3; see 49 C.F.R. § 395.8.
19 49 C.F.R. § 395.8(a); see Carney v. Price Transp., ARB No. 04-157, ALJ No. 2003-STA-048, slip op. at 2 (ARB May 31, 2007) (Price Transport terminated Carney's employment due to a falsification of daily logs).