On August 6, 1998, Stauffer made his first delivery to a store in Jena, Louisiana. After returning to the distribution center, he delivered his second trailer to Slidell, Louisiana, where he spent the night on August 6. (TR217-18). He slept about 7 hours, awoke naturally without the use of an alarm and exited the sleeper berth of his truck tractor at about 8:45 a.m. on Friday, August 7, 1998. (TR222). After taking care of some personal hygiene matters and performing a vehicle inspection of his truck tractor and empty trailer, Stauffer drove from Slidell to Brookhaven. He made two personal stops along the way. Stauffer arrived at the distribution center at about noon on August 7, 1998. (TR223-24; CX10).

   At about 12:45 p.m. on August 7, 1998, Stauffer was dispatched to take a trailer to a store in Gonzalez, Louisiana, return to Brookhaven with an empty trailer and then take a trailer to the store at Denham Springs, Louisiana, with a scheduled unloading time at 4:00 a.m. on August 8, 1998. (TR226). Stauffer knew from experience that the Denham Springs store had only two available dock doors and that he would be delivering the third trailer that night. (TR228). Stauffer quickly calculated that he would arrive at the Denham Springs store at about midnight on August 8, 1998, and that a dock door would not be available any earlier than 2:00 a.m. (TR229).

   At about 12:20 a.m. on August 8, 1998, Stauffer called George Randle and told him that he was at the Denham Springs store, "that they did not have an empty [trailer] and that he was not getting woke up to put the trailer in the hole." (CX14 ). Stauffer told Randle that he no longer did interrupted sleep breaks. (RX14 p.2). Although Stauffer may have informed Randle that he had worked a long day at the end of a long workweek, Stauffer never used the word "fatigue" or "safety" in his conversation with Randle. (TR254; 880-881). Randle responded that the store would have an empty trailer available at 2:00 a.m. and "that it was his responsibility to put it [the loaded trailer] to the dock on time." (CX14). Randle put Stauffer on hold and telephoned Ruby Mabus, the assistant store manager. Ms. Mabus informed Randle that Stauffer had been extremely rude and unprofessional. She also stated the crew would work and have an empty available within twenty minutes. Randle informed Stauffer that a dock would be available within twenty minutes and absolutely no later than 1 a.m. and that Stauffer had two options: 1) he could wait twenty minutes, spot his trailer in the dock and then go to sleep; or 2) he could take a 2-3 hour nap and then spot the trailer. (TR855-859). Stauffer told Randle to write him up, said "good-bye" and then hung up the phone. (TR256). Stauffer's manner of speaking with Randle was abrupt and firm, but he was not unprofessional. (CX14). Stauffer then drove to another Wal-Mart store a few miles away. (TR258).

   After Stauffer left the Denham Springs store Mabus called Randle and told him that Stauffer had dropped his trailer behind the store without securing it and had driven away. (CX14;TR862). Mabus told Randle that Stauffer had been rude with store personnel. Randle arranged for another Wal-Mart driver to exchange the loaded trailer with an empty trailer. The trailer was placed into the receiving dock by another Wal-Mart driver by 4:00 a.m. (TR855).

   Randle sent Paul Darwin an e-mail message relating to him the events of that morning. (CX14). He also called Darwin at home and told him what had happened. (TR861-863;911). Randle reported that Stauffer called in and told Randle that he was going to bed and did not want to be disturbed. (TR912). Later that morning as Stauffer was driving to the distribution center he received a call from Darwin. Darwin asked what happened and Stauffer said he had gotten to the store and wanted to take his break undisturbed. Darwin informed Stauffer that he wanted to meet with him when he arrived at Brookhaven. (TR261;915-917). Darwin also called Mabus and was informed that Stauffer had been rude and unprofessional. (TR917).

   Darwin and Rick Dutton met with Stauffer in Darwin's office. Darwin told Stauffer that he was being fired and provided him with an Exit Interview Form. (TR264;CX12). The Exit Interview Form explained that Stauffer was terminated for "Refusal of a Dispatch Work Assignment (Insubordination)." (CX12). Stauffer asked Darwin if he was being fired. Darwin responded in the affirmative. (TR263-264). Stauffer testified that he began to explain to Darwin that he had been too tired to safely exchange the trailers at the Denham Springs store but Darwin did not

listen to him. (TR264-265). Darwin testified that Stauffer was only concerned that his sleep would be disturbed. (TR913). When informed that he was being terminated, Stauffer went into a verbal rampage. (TR919; CX15). Darwin had security personnel escort Stauffer from the premises. (TR317). Stauffer then left the distribution center in his personal vehicle. (TR318).

   A few hours after he fired Stauffer, Darwin sent a memo to Steve Prestridge, Wal-Mart's personnel manager. The memo noted that Stauffer was "defiant" and that he had liquidated Stauffer's employment "Due to refusing a dispatch work assignment and insubordination." The memo also noted that "Ron has been on a 'crusade' to sway other fellow drivers to tell the store no when asked to move trailers in and out of the dock when asked! Ron tried to contend that our company does not care about driver safety ... Ron continually tried to steer the conversation toward his slanted version of an 8-hour break . . . " (CX 15). Darwin was not aware of Stauffer's "crusade" until after the termination. (TR978).

   On August 11, 1998, Stauffer found employment with Contract Freighters, Inc. Stauffer waited until September 1, 1998, to begin his employment with Contract Freighters while he explored his legal options concerning his termination by Wal-Mart. (TR320). Stauffer was employed by other carriers following his termination by Wal-Mart. Stauffer made $44,639.37 with Wal-Mart in 1998. (CX16, p. 1). He earned $ 44,331.31 from September 1, 1998 through December 31, 1999. (CX16). From January 1, 2000 through February 18, 2000, Stauffer earned $6,641.53 with Schneider Transport. (TR335; CX18).

   Stauffer had been awakened to shuttle trailers at least 500 times and never had an accident or injured anyone. Nor was he aware of any accidents or injuries resulting for drivers being awakened to shuttle trailers. (TR529,530). Mr. Darwin had never heard of any accidents or injuries resulting from drivers being awakened to shuttle trailers during his 13 years with Wal-Mart. (TR989). There was no evidence presented at the hearing of any accidents or injuries resulting from drivers being awakened to shuttle trailers.

   Lowell Ledoux was a Wal-Mart truck driver for eleven years and estimated that he had been awakened to spot trailers approximately 600 times. Other than running over a pallet or curbing a tire, he had never had an accident, injury or incident while spotting a trailer after having been awakened. (TR125). Ledoux did have one accident where he forgot to set the truck brakes when he arrived at a store. (TR115).

   Troy Daigle was a Wal-Mart driver. He estimated that he spotted trailers approximately 1700 times after being awakened from his sleep. He was never involved in an accident which involved personal injury or property damage exceeding $400.00. (TR171). He had two incidents where he forgot to dolly the trailer down. One incident resulted in a cut tire and the other involved no damage. (TR171).

   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).

   The employee protection provisions of the STAA provide in relevant 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.

(2) Under paragraph (1)(B)(ii) of this subsection, an employee's apprehension of serious injury is reasonable only if a reasonable individual in the circumstances confronting the employee would conclude that the unsafe condition establishes a real danger of accident, injury, or serious impairment to health.

49 U.S.C.A. §31105(a).

   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); Moon v. Transport Drivers, Inc., 836 F.2d 226, 229 (6th Cir. 1987).

   It is undisputed that Stauffer was terminated, which is an adverse employment action. The focus of the dispute is, therefore, whether Stauffer's refusal to shuttle the trailers was a protected activity, whether Wal-Mart was aware of the protected conduct when it terminated Stauffer and whether the protected conduct was the likely reason for the termination.

   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. 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.

on anticipatory fatigue. Instead, these cases stand for the proposition that a complainant must provide some proof that his ability will likely become impaired due to fatigue. As the Board noted in Somerson: "most of the cases in which the Secretary or Board has ruled against a complainant asserting fatigue or illness retaliation claims have involved drivers who refused to work in anticipation of becoming fatigued, without evidence to support that anticipation." The converse, however, is also true: that a complainant who produces sufficient evidence in support of a future fatigue claim could establish that a refusal to drive was protected activity.

    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.

   I find that Stauffer was not suffering from fatigue nor anticipating fatigue as to make it unsafe for him to shuttle the trailers. I note that Stauffer's stated concern on the morning of August 8 was that he would be awakened from his sleep to shuttle trailers. Stauffer told the loading crew that he was not going to switch the trailers after being woke up from his natural sleep and he was not going to suffer them disturbing his rest in order to change the trailers. Stauffer told Randle that he was not going to get woke up to put the trailer in the hole and that he no longer did interrupted sleep breaks. With Darwin, Stauffer's only concern was that his sleep would have been disturbed. In none of these discussions was fatigue or safety mentioned.

   I question Stauffer's testimony as to the extent of his fatigue. While he testified as to having worked eleven days with only one day off, in fact Stauffer awoke from natural sleep on Sunday morning, drove a couple of hours back to Brookhaven, then had the remainder of Sunday off. He had the entire day off on Monday and reported to work on Tuesday afternoon. Each night for the rest of the week leading up to August 8, Stauffer got a full night's sleep and awoke naturally without the use of an alarm. There is no evidence to indicate that Stauffer was prevented from sleeping longer in the mornings if he was not rested. And he could have taken a nap prior to leaving on his dispatches on August 7. While Stauffer detailed factors that would make him more fatigued from driving, most of these factors were not present on August 7. While Stauffer would want me to believe that he normally goes to bed between 10 p.m. and midnight and that at exactly 12:30 a.m. his body is

   I find that by waiting until an empty trailer was available, Stauffer's "ability or alertness was not so likely to become impaired through fatigue . . . as to make it unsafe for him" to swap the trailers. I just do not believe Stauffer's self-serving testimony that he was fatigued or that he anticipated fatigue which would make it unsafe for him to shuttle the trailers safely. I find that when Stauffer received his dispatch at noon on August 7 he did not anticipate fatigue as he testified, but he anticipated that he would be awakened from his sleep to shuttle trailers. He then decided to take a stand against drivers being awakened to shuttle trailers. Stauffer's refusal to shuttle the trailers was not protected activity under Section 405(a)(1)(B)(i).

Section 405(a)(1)(B)(ii): Reasonable Apprehension of Serious Injury

   STAA §§405(a)(1)(B)(ii) protects a driver who refuses to operate a vehicle because the driver "has a reasonable apprehension of serious injury to [himself/herself] or the public because of the vehicle's unsafe condition." In Robinson v. Duff Truck Line, Inc., Case No. 86-STA-3, Sec'y Final Dec. and Ord., March 6, 1987, aff'd sub nom. Duff Truck Line, Inc. v. Brock, 848 F.2d 189 (6th Cir. 1988) (Table), the Secretary broadly construed this provision to cover "conditions, which make operation of a commercial vehicle on the road a safety hazard." Slip op. 9. In Robinson the condition was hazardous weather. Elsewhere, the Board has noted that violations of the reasonable apprehension clause involve more than engine defects, failed brakes, and other problems with the mechanical parts of a motor vehicle; the clause is intended "to assure that employees are not forced . . . to commit unsafe acts." Garcia v. AAA Cooper Transportation, ARB Case No. 98-162, ALJ Case No. 98- STA-23, Final Dec. and Ord., slip op. 4, (Dec. 3, 1998) (quoting Bryant v. Bob Evans Transportation, Case No. 94-STA-24, Sec'y Final Dec. and Ord., slip op. 7, April 10, 1995). See also, Thom v. Yellow Freight System, Inc., Case No. 93-STA-2, Sec'y Final Dec. and Ord., slip op. 6, November 19, 1993, aff'd sub nom. Yellow Freight System, Inc. v. Reich, 38 F.3d 76 (2d Cir. 1994) (§§405(a)(1)(B)(ii) should be construed broadly to apply to conditions rendering operation of a commercial motor vehicle hazardous).

   In Somerson the Board held that the broad scope of §§405(a)(1)(B)(ii), articulated in Robinson and its progeny, also encompassed situations where a driver's physical condition (including present or anticipated fatigue) causes an employee to have "a reasonable apprehension of serious injury to the employee or the public." Thus Stauffer's refusal to drive his vehicle could constitute protected activity under §§405(a)(1)(B)(ii) if he had a "reasonable apprehension" of serious injury based upon the present or future level of his fatigue.

   STAA §§405(a)(2) contains the following criteria for evaluating the subsection (B)(ii) "reasonable apprehension" standard: "an employee's apprehension of serious injury is reasonable only if a reasonable individual in the circumstances

confronting the employee would conclude that the unsafe condition establishes a real danger of accident, injury, or serious impairment to health." In Somerson the Board explained:

under this standard, a driver's claim of fatigue, standing in isolation and without context, is insufficient for protection under the STAA to attach. Instead the Secretary, and now the Board, examines the facts surrounding each incident to determine if a reasonable person in the circumstances would have been justified in refusing an assignment due to fatigue.

   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 facts surrounding each incident must be examined to determine if a reasonable person in the same circumstances would have been justified in refusing the assignment due to fatigue.

   Also, there was no evidence presented at the hearing of any accidents or injuries resulting from drivers being awakened to shuttle trailers. Stauffer himself had been awakened to shuttle trailers at least 500 times and never had an accident or injured anyone. Nor was he aware of any accidents or injuries resulting for drivers being awakened to shuttle trailers. The lack of previous accidents is further proof that Stauffer's alleged apprehension on the evening of August 7 was not reasonable.

   Even if Stauffer did engage in protected activity (which I find he did not), Wal-Mart was not aware that Stauffer refused to drive because of fatigue or anticipated fatigue when Stauffer was terminated. As noted previously, Stauffer told the loading crew that he was not going to switch the trailers after being woke up from his natural sleep and he was not going to suffer them disturbing his rest in order to change the trailers. Stauffer told Randle that he was not going to get woke up to put the trailer in the hole and that he no longer did interrupted sleep breaks. With Darwin, Stauffer's only concern was that his sleep would have been disturbed. In none of these discussions was fatigue or safety mentioned. While there is certainly no requirement that these words be specifically stated, Stauffer must prove that Wal-Mart was aware of the protected activity when he was terminated. The information available to Wal-Mart at the time Stauffer was terminated indicated that he was refusing to shuttle the trailers because of his aggravation at being awakened from his sleep. As per Byrd, that is not protected activity.

   Accordingly, I find that Stauffer has failed to establish a prima facie case under the STAA and recommend that the Secretary enter the following order pursuant to 29 C.F.R. §1978.109(c)(4):

   The complaint of Ronald C. Stauffer is DENIED.

   SO ORDERED.

       LARRY W. PRICE
       Administrative Law Judge

]NOTICE: This Recommended Decision and Order and the administrative file in this matter will be forwarded for review by the Administrative Review Board , U.S. Department of Labor, Room S-4309, 200 Constitution Avenue, NW, Washington, DC 20210. See 29 C.F.R. § 1978.109(a); 61 Fed. Reg. 19978 (1996).