(a) Prohibitions.--- (1) A person may not discharge an employee, or discipline or discriminate against an employee regarding pay, terms or privileges of employment, because --

   (A) the employee, or another person at the employee's request, 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; or

   (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 serious injury to the employee or the public because of the vehicle's unsafe condition.

(2) Under paragraph l(B)(ii) of this subsection, an 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.

   Assuming, arguendo, that the warning letter of January 29, 1996 was "discipline" or "discrimination' within the meaning of the first sentence of the section, I conclude that complainant's refusal to drive was not a protected activity because subsection (B) requires an actual violation of a "regulation, standard or order." A good faith belief that a violation would occur does not suffice to qualify under the section. Brummer v. Dunn's Tree Service, 94-STA-55 (Secy., Aug. 4, 1995). Here, the Department of Transportation auditor found no violation. Furthermore, the ten hour maximum driving time specified in 49 C.F.R. §395.3(a)(1), upon which complainant relied, is subject to a two hour extension for "adverse driving conditions" pursuant to § 395. 1 (b)(1). Complainant encountered such conditions, which delayed his arrival in Kent by three-quarters of an hour. He contends that these conditions were apparent to the dispatcher in Boise, and thus were not "adverse driving conditions" as defined in § 395.2. 1 find, however, that the conditions were not apparent at the beginning of the run because Mr. Meyers was able to do the same run in 10 hours or less on the 16th, 17th and 18th. RX 5. Since the refusal to drive was not a protected activity, the warning letter was not forbidden by STAA.

   Complainant's call to the Department of Transportation could be considered the beginning of a "proceeding' under subsection (A) but there is no evidence, and it is doubtful, that respondent's management knew about the call prior to issuing the warning letter.

   Therefore, I conclude that Complainant has not shown that Respondent engaged in any conduct prohibited by STAA in reference to the warning letter of January 29, 1996.

   Even if the warning letter were somehow considered discrimination under STAA (which I have held to be not so) any remedy Complainant might seek is moot because he was terminated in April for legitimate, non-discriminatory, non-pretextual reasons, as discussed below.

Termination in April 1996

   On April 2, 1996, Complainant was driving from Kent, Washington, to Medford, Oregon. TR 64. While driving through Castle Rock, one of his tires blew and someone came and fixed it from 12:45 until 12:55 a.m.. TR 64. He then stopped in Portland and picked up a hazardous material trailer (HAZMAT), and left Portland with three trailers, headed for Medford. TR 64-65. He drove to exit 102, outside of Canyonville at 9:05 a.m, dropped the trailers on the off-ramp and then drove the tractor about one mile to his mother's house. TR 60, 65. Complainant contends that he left the trailers unattended from 9: 10 until 10: 10. TR 65. Although he knew these trailers were placarded as "hazardous," he testified that he was unaware that he was violating DOT regulations by leaving them unattended. TR 61.

   When Complainant returned, Bob McGee, Respondent's Service Center Manager for Medford, Oregon, was waiting for him at the site where he had left the trailers. TR 65. Mr. McGee told Complainant that he had broken federal regulations by leaving these trailers unattended and, consequently, was suspended pending further notice and would be flown home by Respondent. TR 66. Complainant took out his tape recorder and told Mr. McGee that their conversation was being recorded. TR 66. Mr. McGee told him that they had known for a week that he had been dropping the trailers at that exit, that HAZMATS were involved and that Mr. McGee was waiting for him at the exit so they could terminate him. TR 66. Complainant states that even though the Respondent knew for at least a week that he was leaving trailers unattended at that exit, they failed to warn him. TR 66. Complainant subsequently received a termination letter, dated April 5, 1996, signed by Mr. Ken Root. TR 68; RX 16. The letter stated that he was being terminated for: (1) dishonesty for falsifying company documents (because he noted that he was gone for one hour, but Mr. McGee indicated that Complainant left the trailers unattended for longer than one hour); (2) unauthorized use of company equipment (driving to his mother's house with the tractor); and (3) violation of federal, state or local regulations (by leaving the HAZMAT trailers unattended on an off-ramp. TR 68; RX 16.

   Bob McGee testified that he first learned about the possibility of trailers being left alone, the highway on March 20, 1996, when he received a call from a part-time driver for Respondent, who also drove for a competitor. TR 91-92. Mr. McGee first ascertained that the only line haul due into the terminal was Complainant's, and deduced that the trailers were his. TR 92. However, Mr. McGee did not do anything about the call at that time because in their competitive industry, it was not unusual to hear harmful, false rumors from competitors. TR 92-93. Then, on March 29, 1996, he and his wife were driving north to watch his sister play basketball. TR 93. Mr. McGee thought this would be a good opportunity to check for any activity on that highway. TR 93. At approximately 9:20 or 9:40 a.m., while driving around

Canyonville, he saw a set of Silver Eagle trailers on an off-ramp, with a tractor disengaging from the trailers. TR 93. By the time Mr. McGee was able to get off on the next exit and double back to the off-ramp where the trailers were located, the driver and tractor were gone and the trailers remained. TR 93. Because he was uncertain why the trailers were dropped there, he called Mr. Ken Root, the director of line haul services, who asked him to investigate further and find the driver. TR 98. McGee saw Complainant return to the trailers at 10:55 a.m. and noted this in his report as the activity was occurring. TR 99.

   On April 2, 1996, the date of Complainant's next trip, Mr. McGee decided to find out whether Complainant consistently left his trailers at this off-ramp. TR 100. At 9:00 a.m., Complainant pulled onto southbound exit 102, disconnected the tractor from the trailers, drove about one mile and entered a residence. TR 100-101. McGee then went back to the trailers and noticed a hazardous materials placard on the trailer, which alarmed him. TR 101. He reported this to Mr. Root and then stayed with the trailers to protect them until Complainant returned at 10:20 a.m. TR 101-102. Mr. McGee approached Complainant and suspended him until further notice due to the fact that he had broken several DOT regulations and hazardous materials instructions in the driver's handbook. TR 103. Complainant stated that he was not aware that he was violating any regulations or company policy and asked Mr. McGee if they could forget about this event since they were the only ones who knew about it. TR 103. Mr. McGee informed him that they were not the only ones who knew about it. TR 103.

   Complainant also told Mr. McGee that Mr. Feld had previously given him permission to use his breaks to visit his mother. TR 106. However, Mr. McGee did not believe that any dispatcher would have given permission to leave trailers unattended on an interstate off-ramp. TR 106. Moreover, even if Complainant wanted to leave his trailers in that area, he was within a mile of one of the largest truck stops in that area. TR 129. Additionally, it is against federal regulations and company policy, truck stop or not, to leave any HAZMAT unattended. TR 113.

   Mr. McGee stated that he was concerned about Complainant's actions because of the potentially severe penalties associated with violating hazardous material regulations. TR 104. Also, the location of the trailers was dangerous because the visibility was poor for a driver exiting the highway, hence, the possibility of large civil damages. TR 95, 113.

   Upon further questioning from the bench, Mr. McGee stated that he was unaware of Complainant's January driving hours problem and the resultant DOT audit, until approximately two days prior to the hearing. TR 123-124.

   Mr. Root testified that the break times noted on Complainant's trip sheet for his run starting on April 1, 1996 and ending April 2, 1996 was not consistent with what Mr. McGee observed. TR 140; RX 15. Mr. Root stated that the labor contract permits termination for a second offense, which Mr. Root felt was justified here. TR 141. Mr. Root not only shared McGee's safety and financial concerns over Complainant leaving the placarded trailers unattended, but was equally concerned over the fact that Complainant took the shipping materials with him when he left the

trailers unattended. TR 142-143. This meant that in the event an emergency response team was required should something occur with the trailers while they were unattended, the team would have no way of knowing how to deal with the hazardous materials. TR 142-143.

   Mr. Root also testified regarding Complainant's initial termination, which occurred in December 1995. Root was called to the scene of a preventable, single vehicle accident caused by Complainant on December 30, 1995, which caused approximately $10,000 worth of damage to the vehicle and trailers. TR 145-146. Upon investigation at the scene, he determined that Complainant had illegally driven over fifteen hours by the time he had the accident. TR 146. He was suspended pending further investigation and, subsequently terminated for that event. TR 146. Complainant then informed Respondent that he had worked seventeen hours prior and that Respondent had not caught it. TR 147. Consequently, but prior to the January 1996 events, the Respondent, Complainant and the union executed an agreement in which Complainant's termination would be reduced to two uncontested warning letters and Complainant would be paid for half the time he was off work. TR 146.

   Complainant states that he was not aware he was violating any regulations by leaving these trailers unattended. However, RX 41 is a certificate dated June 13, 1989, indicating that Complainant was certified as being trained in the proper handling and transportation of hazardous materials. TR 76-77. Moreover, Complainant has possessed a commercial driver's license since age eighteen, which required him to pass a commercial driver's test, including a specific test involving handling hazardous materials. TR 77. He is retested every four years to maintain the license. TR 78. Complainant has also attended a training program that Respondent offered involving HAZMATS in 1993. TR 83-84.

   John Saak, Respondent's Director of Human Resources and Safety testified concerning Respondent's various methods of ensuring their drivers are very aware of the regulations involving HAZMATS. TR 172. Respondent requires all drivers to possess a commercial driver's license with the hazardous materials endorsement. TR 172. Moreover, the Respondent provides recur-rent training at least every two years, with a follow-up test to each session. TR 172. Drivers are also provided a pocket version of the federal hazardous materials regulations and post related information at every terminal location. TR 172.

   Complainant also stated he obtained permission to visit his mother during his break from a dispatcher named David Feld, now deceased, and, subsequently, from a line dispatcher named Gary. TR 69. Gary Weiler, the line dispatcher to whom Complainant referred, stated that Complainant had telephoned him in 1996 on a Kent to Medford trip and requested permission to visit his mother during his break since Mr. Feld had previously given Complainant permission to do so. TR 162-163. Mr. Weiler gave Complainant permission to take his break to see his mother for that particular trip because he was not aware of any of the information that Complainant was giving him and Complainant's dispatch sheet indicated that he did not have any time-sensitive freight. TR 163. However, Mr. Weiler never gave Complainant permission to leave trailers unattended on an off-ramp when they were. placarded as hazardous material and he would never have done so because that activity has never been allowed in his thirty years in the industry. TR 163.

   As noted, Respondent objected to my hearing the termination issue because it had not been processed by the Regional Administrator. However, Complainant wanted the issue adjudicated, and Respondent was not prejudiced because it was able to produce all the evidence necessary for a decision. Complainant contended that the termination was in retribution for his report to DOT, which ties in directly to the events surrounding the termination letter of January 1996. I therefore think it was appropriate and within my jurisdiction to consider the termination issue.

   I find that Complainant is not entitled to relief for his termination, for the following reasons.

   1. I have found that Complainant's refusal to drive on January 17, 1996 was not protected activity. Therefore, even if it led to the termination in April Complainant would not be entitled to relief.

   2. Assuming, arguendo, that Complainant's call to DOT was protected activity, and that Respondent was aware of it, and that there was a reasonable inference that Complainant's termination was taken because of the protected activity, the overwhelming evidence rebuts the inference by proving a legitimate, non-discriminatory, non-pretextual reason for Respondent's action.

   The evidence convincingly shows that Complainant knew, or should have known, that leaving a placarded HAZMAT unattended was a violation of company rules and federal regulations. Complainant likewise knew that he had two prior warning letters on his record (disregarding the warning letter of January 29, 1996) and that any additional serious violation would result in termination.

   The complaint of Allen T. Shute under the Surface Transportation Assistance Act is denied. (See 29 C.F.R. § 1978.109(c)(4).)

          Thomas Schneider
          Administrative Law Judge

Date: February 13, 1997
San Francisco, California

NOTICE: This Recommended Decision and Order and the administrative file in the matter will be forwarded for review by the Secretary of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210. The Administrative Review Board has the responsibility to advise and assist the Secretary in the preparation and issuance of final decisions in employee protection cases adjudicated under the regulations at 29 C.F.R. Parts 24 and 1978. See 55 Fed. Reg.13250(1990).