Wal-Mart is engaged in interstate trucking operations and its employees operate commercial motor vehicles in interstate commerce. This complaint under STAA is properly before me. See, Secretary's Findings, dated January 27, 1999 (Defense Exhibit D, Deposition of Ronald C. Stauffer).

   Ronald Stauffer was employed as a truck driver for Wal-Mart Stores, Inc. until he was fired as a result of the events which form the core of the present dispute. On August 7, 1998, Complainant's assigned deliveries were scheduled to terminate at the Denham Springs, LA Wal-Mart store at 4 a.m. on the morning of August 8, 1998. He had been informed that he would be expected to drop off his loaded trailer and pick-up an empty trailer prior to going to bed. (Dep. at 29-32).

   Complainant arrived at the Dunham Spring's store at 12 a.m. on August 8, 1998, and found that both of the store's loading docks were occupied by fully loaded trailers. The crew, which was unloading the trailers indicated that no later than 2 a.m. one of the trailers would be unloaded and Complainant would be able to change the trailers. In the interim they suggested that he get some sleep and they would awaken him when one of the trailers was empty. Complainant had very strong feelings regarding the importance of a full eight hours of sleep, and thus, informed the loading crew that he was not going to take the suggested nap. Instead, he informed them that he was going to unhitch his trailer, which they should lock, and then he was going to another location where he could sleep undisturbed. He was not going to suffer them disturbing his rest in order to change the trailers and thereby jeopardize his ability to drive unfatigued the next night. (Dep. at 33-39).

   Complainant had similar conversations with both the store management and with his dispatcher prior to leaving the store. The two managers from the store talked with him for about fifteen minutes and covered much of the same ground as the dock crew, then Complainant spoke with George Randall at the Brookhaven yard. Complainant called out of courtesy to inform the dispatcher that there was not an empty trailer waiting and that he would not subject his sleep to being interrupted by the store. Mr. Randall informed Complainant that such an action would lead to disciplinary action, but Complainant countered that he would be too fatigued after such a short nap to guarantee that he could safely change the trailers. (Dep. at 42-54).

   Complainant then proceeded to drive five miles to another Wal-Mart in Baton Rouge where he slept eight hours in the sleeping berth of his truck. After awakening around midmorning on August 8, 1998, Complainant proceeded to return to the Denham Springs store where he hooked-up one of the now empty trailers and returned to the Brookhaven yard in Mississippi. Upon his arrival he was informed that his employment had been terminated because of his "Refusal of a Dispatch Work Assignment (Insubordination)." (Dep. 64-65, 19-21).

   The Secretary has stated that the STAA should be interpreted liberally in order to promote an interpretation of the Act which is consistent with its Congressional intent, namely, the promotion of commercial motor vehicle safety on the nations highways. See generally, Boone v. TFE, Inc., 90-STA-7, (Sec'y. July 17, 1991) DOL Decs. Vol. 5, No. 4, p. 160, 161, aff'd sub nom., Trans Fleet Enterprises, Inc. v. Boone, 987 F.2d 1000 (4th Cir. 1992); Somerson v. Yellow Freight Systems, Inc., 1998-STA-9 and 11 (ARB Feb.18, 1999).

   In order to establish a prima facie case for relief under the STAA, an employee must show that he engaged in protected conduct, that he was subject to adverse employment action, that his employer was aware of the protected conduct when it took the adverse action, and must present evidence sufficient to raise the inference that the protected conduct was the likely reason for the adverse action. Ertel v. Giroux Brothers Transportation, Inc., 88 STA-24 (Sec'y. Feb 16, 1989) DOL Decs. <2> Vol.3, No.1, p. 162, 168; Moon v. Transport Drivers, Inc., 836 F.2d 226, 229 (6th Cir. 1987).

   It is undisputed that Complainant was terminated, which is an adverse employment action, and that the reason for the termination was Complainant's refusal to finish the assignment. The focus of the dispute is, therefore, whether Complainant's refusal was a protected activity.

   The primary agency responsible for regulating trucking industry practices under the STAA is the Department of Transportation (DOT). See 49 U.S.C.A. §§31136, 31502. Several DOT trucking regulations are implicated in some manner by the complaint submitted on behalf of Mr. Stauffer. A brief review of the regulations provides an appropriate context for an analysis of the legal issues presented.

   Part 392 of Title 49 of the Code of Federal Regulations, Driving of Commercial Motor Vehicles, includes diverse rules dealing generally with safety. One is the DOT's "fatigue" rule, which provides in pertinent part:

No driver shall operate a commercial motor vehicle, and a motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the driver's ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle.

49 C.F.R. §392.3 (1997).

   The Department of Transportation also regulates the maximum number of hours that drivers may work, under rules found at 49 C.F.R. Part 395, Hours of Service of Drivers. As a general rule, a driver can be "on duty" (i.e. waiting to drive, inspecting the vehicle, loading/unloading, driving, waiting for vehicle repair, etc.) no more than 15 hours after an eight-hour rest period, and may drive no more than 10 hours during the "on duty" period. 49 C.F.R. §395.3(a). Complainant does not allege a violation of the hours of service rules (CB at 3).

   In contrast to the broad policy role assigned to the Secretary of Transportation under the STAA, the statute assigns a limited role to the Secretary of Labor by delegating enforcement authority of the STAA's employee protection provisions to her. These employment protection provisions of the

STAA provide in part:

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

(A) ...

(B) the employee refused 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 vehicles unsafe condition.

49 U.S.C.A. §31105(a). Thus, under the employee protection provisions of the STAA enforced by the Secretary of Labor, it is unlawful for an employer to impose an adverse action on an employee because the employee has complained or raised concerns about possible violations of these DOT regulations. 49 U.S.C.A. §31105(a)(1)(A). See, e.g., Reemsnyder v. Mayflower Transit, Inc., Case No. 93-STA-4, Dec. and Ord. on Recon., May 19, 1994, slip op. at 6-7 and cases there cited. Furthermore, it is unlawful for an employer to impose an adverse action on an employee who has refused to work because operating the vehicle would violate DOT regulations or because he has a reasonable apprehension of serious injury to himself or the public. 49 U.S.C.A. §31105(a)(1)(B).

   A driver's refusal to work because of fatigue may be determined to be a protected activity under either STAA Section 31105(a)(1)(B)(i) (operation violates a federal regulation, e.g. the fatigue regulation at 49 C.F.R. §392.3) or Section 31105(a)(1)(B)(ii) (employee has a reasonable apprehension of serious injury because of the unsafe condition of a vehicle). Somerson, at 11. In order to prove a fatigue related claim under subsection (i), a complainant must prove the operation of the vehicle would in fact violate the specific requirements of the fatigue rule. As the court held in Cortes v. Lucky Stores, Inc., slip. op. at 4 (quoting Yellow Freight Systems v. Martin, 983 F.2d 1195,1199 (2d Cir. 1993):

To establish a violation of the provision at Subsection (B)(i) of the STAA, a complainant "must show that the operation [of a motor vehicle] would have been a genuine violation of a federal safety regulation at the time he refused to drive a mere good faith belief in a violation does not suffice." (emphasis added)

A violation of this provision is established where it is proven that the driver's "ability or alertness

was so impaired as to make vehicle operation unsafe." Smith v. Specialized Transportation Services, Case No. 91-STA-22, Sec. Final Dec. and Ord., Apr. 30, 1992, slip op. at 6.

   The protection under subsection (ii), which is applicable whenever there is a serious safety issue, is considerably broader and remains applicable even when the DOT safety regulations do not directly and specifically address the safety concern. However, in order to prove a fatigue related claim under subsection (ii), a complainant must prove that "a reasonable person in the same situation would conclude that there was a reasonable apprehension of serious injury if he drove." Byrd v. Consolidated Motor Freight, ARB Case No. 98-064, ALJ Case No. 97-STA-9, ARB Final Dec. and Ord., May 5, 1998, appeal filed, May 27, 1998 (11th Cir.).

   Under this standard, a driver's claim of fatigue, standing in isolation and without context, is insufficient for the protection found under the STAA to attach. Instead, the Secretary must examine the facts surrounding each incident to determine if a reasonable person in the same circumstances would have been justified in refusing the assignment due to fatigue. In practice most drivers have found little difficulty meeting this standard when the circumstances of the driver's refusal to work pointed clearly to the immediate cause of the driver's fatigue concerns. See generally, Hornbuckle v. Yellow Freight Systems, Inc., Case No. 92-STA-9, Sec. Dec. and Ord., Dec. 23, 1992, aff's sub nom., Yellow Freight Systems, Inc. v. Reich, 8 F.3d 980 (4th Cir. 1993); Self v. Carolina Freight Carriers Corp., Case No. 91-STA-25, Sec. Final Dec. and Ord., Aug. 6, 1992, but see, Porter v. Greyhound Bus Lines, ARB Case No. 98-116, ALJ Case No. 96- STA-23, Arb Dec. Jun. 12, 1998, slip op. at 2-3.

the drive to the Baton Rouge store which was five miles away. He answered that he "was in the same condition that [he] was in to have changed the trailers, had there been an empty there," because he would have been able to do the task before having gone to sleep only to have been awoken later. (Dep. at 64-65). I interpret this statement to mean that he would not have been so fatigue as to violate the precepts of 49 C.F.R. §392.3.

   Support for this interpretation is found in the conversations that Complainant reported having with the store personnel as well as the dispatcher who had originally issued Complainant his driving assignment. When Complainant arrived at the Denham Springs store, he testified that he went to the loading dock in order to ascertain which trailer he was supposed to be moving (i.e. the promised empty trailer). This does not support the inference that he deemed himself too tired to perform the task at that time. Indeed, he informed both the dock crew and the store managers that it was his future condition, as opposed to his present condition which he was concerned about. When assigned the delivery he testified that he expressed concern over the possibility of the trailer being ready, but Complainant made no indication that he would have been too fatigued to perform the shuttling operation.

   Based on the afore noted testimony of Complainant I find that he has failed to satisfy the requirement for proving a violation of 49 C.F.R. §392.3 under the holding in Somerson. 1998-STA-9 and 11 (ARB Feb. 18, 1999). His refusal to finish his delivery, which included docking the loaded trailer, was predicated on his apprehension concerning his possible physical fatigue at a future point.

   As to the merits of Complainant's second ground for finding that his fatigue-based refusal was a protected activity, it is necessary to assess what a "reasonable man" would have done in the same situation. 49 U.S.C.A. §31105(a)(1)(B). Though Complainant undoubtably feels that he is a reasonable man, it is necessary to look at a sampling of other driver's opinions in order to determine what a reasonable man would do in the instant situation. Initially I note Complainant's testimony regarding the widespread use of the practice of awakening drivers. This suggests that the stores find the policy to be a reasonable policy, which I doubt would be the case was it the cause of regular accidents. Second, I note Complainant's testimony regarding the statements made by Mr. Darwin, his primary dispatcher and head of the Brookhaven facility. Mr. Darwin had been a driver for seven-and-a-half years and seemed to find the policy reasonable. (Dep. at 19-21).

   Balanced against these opinions is Mr. Stauffer's testimony regarding the existence of a number of unspecified and unsubstantiated accidents involving drivers awoken to shuttle trailers. In light of a lack of corroborating evidence and Complainant's own statement that he has never been involved in an accident under these circumstances, I find the probability of an accident to be relatively low. (Dep. at 41, 48). Furthermore, I fail to see an evidentiary chain linking these unspecified accidents to the Complainant's contention that they were the result of fatigue and not simple driver error. Therefore, I find Complainant has failed to present evidence which would establish that the policy was unreasonable and thus