DATE:  July 3, 1995
CASE NO:  95-STA-11


IN THE MATTER OF

JOHN T. FOLEY, SR.,

          COMPLAINANT,

     v.

J. C. MAXXWELL, INC.,

          RESPONDENT.[1] 


BEFORE:   THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     Complainant John T. Foley, Sr. (Foley) alleges that
Respondent J. C. Maxxwell, Inc., (Maxxwell) violated the employee
protection provision of the Surface Transportation Assistance Act
of 1982 (STAA), 49 U.S.C.A. § 31105 (West 1994).  Maxxwell
is an interstate trucking company principally engaged in the
transportation of refined petroleum products.  Foley alleges that
Maxxwell fired him because he filed a complaint with the
Occupational Safety and Health Administration (OSHA), concerning
the exposure to asphalt fumes suffered by Foley at Coastal Oil of
New England, one of Maxxwell's customers.  Maxxwell claims that
Foley was fired for failing to report to work as directed.  The
findings of fact in the Administrative Law Judge's (ALJ)
Recommended Decision and Order (R. D. and O.), at 9-12, are
supported by substantial evidence on the record as a whole and
therefore, are conclusive.  29 C.F.R. § 1978.109 (c) (3)
(1993).  I  find that the ALJ erred in concluding that Foley
presented a prima facie case of a violation of the
employee protection provision of the STAA, but agree with his
ultimate conclusion that the case should be dismissed.
     In order to establish a prima facie case pursuant to
the 
[PAGE 2]
employee protection provision of the STAA, the Complainant must
show: (1) that he engaged in protected activity; (2) that his
employer took adverse employment action against him; and (3) that
a `causal link' exists between his protected activity and the
employer's adverse action.  Yellow Freight Systems, Inc. v.
Reich, 27 F.2d 1133 (6th Cir. 1994); Moon v. Transport
Drivers, Inc., 836 F.2d 226 (6th Cir. 1987). 
     Foley's claim must fail because he has not alleged that he
engaged in any activity protected under the STAA.  The relevant
portion of the STAA states:
          (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. 
49 U.S.C.A. § 31105 (a) (1).  Foley's only claim of
protected activity in this proceeding concerns an OSHA violation. 
While the alleged OSHA violation may well have been serious, it
does not entitle Foley to protection under the STAA.[2]  
Therefore, Foley has failed to establish the first element of a
prima facie case -- that he engaged in protected activity.
     The ALJ found that Foley's complaint should be dismissed
because he was unable to carry his burden of proving by a
preponderance of the evidence that Maxxwell fired him for
engaging in protected activity.  If the protected activity
alleged by Foley was, in fact, protected by the STAA, I would
agree with the ALJ's findings of fact and conclusions of law.  In
any event, it is hereby ORDERED that the complaint be DISMISSED.
     SO ORDERED.
                              ROBERT B. REICH
                              Secretary of Labor


[ENDNOTES]
           
[1]   I have corrected the caption used in the May 5, 1995
Recommended Decision and Order to reflect that the Assistant
Secretary of Labor was not the prosecuting party in this case.

[2]   In addition to his STAA complaint, Foley filed a complaint
under the whistleblower provision of the Occupational Safety and
Health Act, 29 U.S.C. §660 (c) (1988)(Section 11 (c)).  That
complaint was rejected by OSHA.  R. D. and O. at 5.  Therefore,
OSHA did not bring a Section 11 (c) action in federal district
court on Foley's behalf.  There is no individual course of action
under section 11 (c).