Briefly stated, Respondent contends that the present complaint is based on incidents occurring on August 2nd and 3rd, September 22nd and October 17th, the dates on which Complainant refused to operate a vehicle due to fatigue. Each incident was followed by warning letters issued on August 7, 1989, September 26, 1989, and October 18, 1989. The letter format and content is exemplified by the October 18th letter which concludes;

[t]his will serve as a warning letter for refusing work and future incidents of this nature will result in disciplinary action up to and including discharge." "Affidavit of Rodney E. Boothe, Respondent's Motion to Dismiss on the Basis of Statute of Limitations, February 21, 1992."

   Complainant was discharged on November 6, 1989. Subsequently, on April 27, 1990, Complainant filed the present complaint under the Act. It is not disputed that the actual discharge occurred within the 180 day filing deadline required under the Act, 49 U.S.C. § 2305 (c)(l); rather, Respondent contends that because the letters of discipline issued August 7, September 26, and October 18, fall outside of the 180 day filing deadline, the claim is time-barred.

   In support of its position, Respondent relies solely on cases involving an interpretation of the six month statute of limitations provision contained in §10(b) of the National Labor Relations Act [hereinafter NLRA]. The basic principles were enunciated in Local Lodge No. 1424 v. NLRB, 362 U.S. 411, at 416-417 (1960), which involved a facially valid union security clause, the enforcement of which would be perfectly valid but for the invalidity of the underlying collective bargaining agreement. There, the Court determined that an unfair labor practice charge based on enforcement of the security clause, but filed nearly one year after the illegitimate collective bargaining agreement was effected, was time barred under §10(b). The Court concluded that where conduct occurring within the limitations period is not patently an unfair labor practice, a party may not rely on events falling outside of the limitations period to "cloak with illegality that which was otherwise lawful." Id. Analogizing to Local Lodge No. 1424 and related NLRA cases, Respondent argues that; 1) its discharge of Complainant for his overall work record is not unlawful on its face, 2) the only way Complainant can attack his discharge is by attacking the underlying disciplines which occurred outside of the 180 day limitations period, and 3) this is precisely the type of attempt to "cloak with illegality" prohibited in Local Lodge No. 1424. [RB at 93].

   Local Lodge No. 1424, and the other NLRA cases cited to by Respondent are not applicable to the present case. First, the Court in Local Lodge No. 1424 indicates that any general principles enunciated are "drawn" from the NLRA's specific purpose and history. Consequently, the Court refuses to broadly extend the applicability of its decision beyond §10(b) of NLRA. Id., at 830, n.15. Unlike the NLRA, which has the overall purpose of securing industrial peace through the balance of

competing interests, Id., at 833, the "whistleblower" provisions of the Surface Transportation Assistance Act were enacted specifically to encourage employee reporting of noncompliance with safety regulations and to protect such employees against retaliation for reporting these violation. Moon v. Transport Drivers, Inc., 836 F.2d 226, 228 (6th Cir. 1987). Because the purposes and history behind the NLRA and the STAA are very different, Local Lodge 1424's interpretation of the NLRA time-barring provision can not extend to the present case.

   Second, while the Supreme Court notes that the specific language of §10(b), "bars issuance of a complaint 'based upon any unfair labor practice' which occurred more than six months prior to the filing of the charge". The Court makes a point to distinguish this from time-barring provisions that "merely bar proceedings ... which are not commenced within six months after that [complained of activity] has been committed." Local Lodge No. 1424, at 830, n. 15. The statute of limitations provisions under the Surface Transportation Assistance Act states that:

[a]ny employee who believes he has been discharged, disciplined, or otherwise discriminated against. may, within one hundred eighty days after such alleged violation occurs, file a complaint [under the Act]." 49 U.S.C. § 2305(c)(1)

As the STAA provision is one that "merely bar[s] proceedings" one hundred eighty days after the complained of activity occurred, this complaint is not time-barred under the rationale of the cases cited by Respondent.

   More relevant than NLRA cases is case law involving time-barring provisions under similar federal "whistleblower" statutes. In a "whistleblower" case arising under the Energy Reorganization Act, it was determined that the statute of limitations begins to run from the time of the discriminatory act. English v. Whitfield, 858 F.2d 957, 961 (4th Cir. 1988)(quoting Chardon v. Fernandez, 454 U.S. 6, 8 (1981)). Furthermore, the filing period begins to run only when the employee is given "final and unequivocal notice of an employment decision having delayed consequences". Id.

   The discriminatory action complained of in the present case is Complainant's discharge of November 6, 1989. While it is true that Complainant was issued individual warning letters over each allegedly protected incident, none of these warning letters can be considered "final and unequivocal notice" of his discharge; consequently, the statute of limitations did not begin running after the warning letters were issued. Moreover, whether or not Complainant suspected that the October 16, 1989, notice of hearing was issued with the intent to discharge, such notice of hearing can not be considered tantamount to his actual discharge. Compare, English v. Whitfield, supra, (employer's letter specifically notifying complainant of termination unless she found suitable position in another department deemed final and unequivocal notice of termination). Respondent's Motion for Summary Judgement on this issue is again denied.

Issues

   The Complainant alleges that the Respondent violated § 405(a) of the Act by discharged him in retaliation for his filing grievances alleging that Respondent violated 49 C.F.R. § 392.3. The Complainant alleges that Respondent violated § 405(b) of the Act by discharging him for exercising his rights protected under 49 C.F.R. § 392.3, specifically, refusing to operate a vehicle while fatigued.

Applicable Law

    Section 405(a) provides:

No person shall discharge, discipline, or in any manner discriminate against any employee with respect to the employee's compensation, terms, conditions, or privileges of employment because such employee (or any person acting pursuant to a request of the employee) has filed any complaint or instituted or caused to be instituted any relating to a violation of a commercial motor vehicle safety rule, regulation, standard, or order, or has testified or is about to testify in any such proceeding.

    Section 405(b) provides:

No person shall discharge, discipline, or in any manner discriminate against an employee with respect to the employee's compensation, terms, conditions, or privileges of employment for refusing to operate a vehicle when such operation constitutes a violation of any Federal rules, regulations, standards, or orders applicable to commercial motor vehicle safety or health, or because of the employee's reasonable apprehension of serious injury to himself or the public due to the unsafe condition of such equipment. The unsafe conditions causing the employee's apprehension of injury must be of such nature that a reasonable person, under the circumstances then confronting the employee, would conclude that there is a bona fide danger of an accident, injury, or serious impairment of health, resulting from the unsafe condition. In order to qualify for protection under this subsection, the employee must have sought from his employer, and have been unable to obtain correction of the unsafe condition.

    49 C.F.R. § 392.3 states:

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

   The applicable burdens and order of presentation of proof in cases arising under the Act are identical to those arising under analogous employee protection statutes covered by 29 C.F.R. Part 24. See Nix v. Nehi-RC Bottling Company, Inc., 84-STA-1 (1984). These burdens were analyzed by the Secretary of Labor in McGavock v. Elbar, Inc., 86-STA-5 (1986), where the Secretary indicated that to make a prima facie case under the Act, the complainant must show that 1) he was engaged in protected conduct, 2) employer was aware of that conduct, and 3) employer took some adverse action against him. As part of the prima facie complaint, complainant must present sufficient evidence to raise the inference that the protected activity was the likely reason for the adverse action. Once the Complainant establishes a prima facie case, employer may rebut the presumption of disparate treatment by showing that such alleged treatment was motivated by legitimate, nondiscriminatory reasons. Once the employer rebuts the complainant's prima facie case, the employee may nonetheless demonstrate that the proffered reason was not the true reason for the employment decision. Complainant may do so either directly by showing that a discriminatory reason more likely motivated the employer or indirectly by showing the employers' proffered explanation is merely pretextual. If the trier of fact determines that the employer was motivated by both legitimate and prohibited motives, i.e. "dual motives", then the employer will avoid liability only by showing by a preponderance of the evidence that it would have reached the same employment decision even in the absence of the protected activity.

FINDINGS OF FACT

   Respondent, Yellow Freight System, Inc., is a commercial motor carrier engaged in interstate trucking operations and is subject to the Surface Transportation Assistance Act of 1982. [Respondent's Response to Complainant's Request for Stipulations of Fact, January 6, 1992, hereinafter "Stipulations"]. Complainant, Willie W. Smith, has a total of approximately twenty six years of experience as a professional truck driver. [T. at 37]. He was hired by Respondent on or about February 6, 1988 as a driver of a commercial motor vehicle. [Id.]. According to his testimony, he was never involved in any serious employment related incidents and was never fired prior to his discharge from Respondent. [T. at 37].

   During the period leading up to his November 3, 1989 discharge, Complainant was involved in a number of incidents resulting in various levels of disciplinary action. Because Respondent argues, in part, that Complainant's discharge was the result of his overall work record rather than his engaging in protective activity, a review of Respondent's disciplinary system and each employment related incident is necessary. Included, where disclosed by the record, is the treatment of other employees for similar infractions where this weighs on the issue of whether the Respondent's position is pretextual.

   Complainant's nine month work record prior to his November 3, 1989 discharge includes the following:

   1) A February 2, 1989 letter of information indicating that, upon review of Complainant's driving logs of February 12 and 13, "a problem exists". [RX 22]. The letter requests that Complainant set up an appointment to meet with members of the disciplinary committee and that failure to do so would lead to formal, disciplinary action. Complainant responded by letter questioning the basis for the letter of information indicating "I need specifics. Upon receipt, I shall provide you with a response." [RX 23]. Based upon testimony elicited at the March 4, 1992 hearing from Mr. Gifford, the discrepancy in the logs pertained to a notation indicating that Complainant had taken 45 minutes to perform a pre-trip safety check normally taking 15 to 30 minutes to perform. Because this coincided with Complainant's recent election as a Union steward, Mr. Gifford indicated that the letter of information was issued to ensure that Complainant was not conducting Union activity without informing Respondent and properly marking his logs as such. [T. at 502-505; RB at 21-22.].

   2) A February 21, 1989 warning letter for log falsification and failure to follow instructions. On February 16, 1989, Complainant arrived at the Columbus, Ohio terminal at 9:30 p.m. According to the written account of the incident made by the on duty supervisor, Complainant stayed in the driver's room conversing with other drivers until 10:30 p.m. At 10:30 p.m. he reported to the on duty supervisor that he had 2 1/4 hours of remaining available driving time when he actually had 2 hours of remaining available driving time. Respondent contends that a fifteen minute discrepancy is significant since it can be determinative as to which location the driver may be dispatched. [RB at 22].

   When asked about this, Complainant maintained that fifteen minutes of the time spent upon his 9:30 p.m. arrival at the Columbus terminal was used for on duty changing of outfits. The supervisor disagreed "stating he had been talking to drivers not working." [RX 25]. Complainant was then instructed to redo his time card and indicate available time for all points. He refused. [RX 25; RB 22; T at 505-507]. As a result of this incident, Complainant received a warning letter briefly recounting these facts and specifying that he was being disciplined for "log falsification and failure to follow instructions". [RX 26].

   3) A March 24, 1989 warning letter for delay of freight. On March 17, 1989 Complainant was dispatched to drive from Columbus, Ohio to Detroit, Michigan at 9:00 a.m. While Complainant arrived on time at the Columbus terminal for his 9:00 a.m. dispatch, as noted in his driving logs, he remained in the drivers' room performing union counseling and did not leave the office until 10:30 a.m. According to Mr. Gifford, Complainant failed to notify anyone at the terminal about his whereabouts or activities during this period. He was subsequently issued a warning letter specifying that he had been dispatched for a 9:00 a.m. run but remained in the terminal until 10:30 am., and that this constituted a 1 hour delay of freight. [RX 28; RB at 23; T at 508-510]. In response to this warning letter, Complainant filed a grievance dated April 28, 1989 alleging harassment and intimidation on account of his race and his status as a union steward. [RX 29].

   4) A March 24, 1989 warning letter for delay of freight. On March 22, 1989 Complainant was dispatched to drive from Columbus, Ohio to Baltimore, Maryland at 3:00 p.m. As indicated by his driving logs, Complainant remained in the drivers' room until 4:00 p.m. Moreover, according to Mr. Gifford, Complainant did not notify management during this one hour period. He was issued a warning letter specifying that the above actions constituted delay of freight of at least one hour. [RX 31; RB at 23; T at 510-519]. In response Complainant filed a grievance letter alleging harassment and intimidation on account of race and union status. [RX 29].

   5) On April 28, 1989 a formal disciplinary hearing was held at Respondent's Columbus, Ohio facility, the stated purpose of which was to review Complainant's overall work record. (RX 32]. At the hearing all disciplinary actions taken in the previous nine months were reviewed. (RX 34]. The hearing was made a matter of record and was followed up with a letter of information dated May 1, 1989. The letter specifies that in the future Complainant is expected to follow company procedures without deviation and that "future problems of this nature will result in more severe disciplinary action up to and including discharge." [RX 35; RB at 24; T at 518519].

   6) A June 1, 1989 warning letter for failure to follow instructions. On May 25, 1989 Complainant was dispatched from Columbus, Ohio to Madison, Pennsylvania for what is known in the industry as a "meet and turn", where a driver literally meets another driver at a half-way point, switches trailers, and turns to drive back. Pursuant to Article 48 of the National Master Freight Agreement, and as set forth in an interoffice correspondence of January 31, 1989, both drivers are required to take their one hour meal at the "meet and turn". On the occasion at issue, however, Complainant instead waited until a point later in the drive back to Columbus for his one hour meal break. He was issued a warning letter dated June 1, 1989, recounting the facts behind the infraction and warning him that future incidents of this nature could result in further disciplinary action. [RX 38; RB at 24-25; T at 519-525].

   7) A June 1, 1989 warning letter for delay of freight also arising out of Complainant's May 25 and May 26, 1989, dispatch to Madison, Pennsylvania. According to the testimony of Mr. Gifford, review of Complainant's driver's logs revealed that in addition to his meal break, Complainant was disciplined for taking a fatigue break and not notifying Respondent. [T at 525]. The actual warning letter issued June 1, 1989, states only that the May 25 and 26 logs indicate a delay of freight of at least 1 hours. No specific mention is made of either a fatigue break or that failure to notify Respondent of same precipitated the warning letter. [RX 39].

   8) On June 5, 1989 Complainant was ticketed for allegedly driving 76 miles per hour in a 65 mile per hour zone. Respondent called the ticketing officer, West Virginia State Trooper Samuel Bruce Lake, to testify at the hearing. [T at 192-216]. By his account, after Complainant was pulled over he disputed that he had been driving 76 miles per hour and requested to see the radar detector's read out. Officer Lake told Complainant that this was not possible; he explained at the hearing that in West Virginia, the speed is not locked onto the radar and therefore no lasting read out is available for review. [T at 208].

   At this point there is some discrepancy between Complainant's and Officer Lake's view of events. According to Complainant, after filling out the ticket, Officer Lake asked Complainant whether or not he had a way of posting bond. Complainant responded that he was bonded for up $5,000 under his AAA membership. Officer Lake refused this and insisted on a cash bond or, in the alternative, Complainant's truck would be impounded. Officer Lake then told Complainant to sign the ticket. Complainant maintains that he refused to sign the ticket because it was his impression that this was tantamount to an admission of guilt. [T at 145-156].

   11) On July 27, 1989 Complainant was called for work at 4:00 p.m. He did not respond to this call and, consequently, received a warning letter dated August 2, 1989 for delay of freight and equipment. The warning letter specifically refers to Complainant not being available for dispatch. [RX 55].

   Pursuant to rule 3(c) of the Standard Rules Governing Operation of Over the Road Drivers at Columbus, the unavailability of a driver must be verified by a union employee and the driver must be re-called 15 minutes later. [RX 2]. By a letter of understanding dated September 20, 1985, Respondent and the union agreed to the use of beepers/pagers. The letter of understanding specifies that once a beeper/pager is called the driver has 5 minutes to respond to be allowed a choice of dispatch. If the driver does not respond by that time, the beeper/pager is verified and the driver has an additional 10 minutes to respond. If the driver still does not respond, then application of rule 3(c) goes into effect. [RX 2].

   The driver, who is charged with purchasing and maintaining his own beeper/pager, may be excused for failing to respond if he verifies that his beeper was not operational at the time. To this end Complainant submitted a work order indicating that his pager was replaced on July 28, 1989. [CX F]. Respondent, however, contacted the beeper pager company and received a letter written by the pager company's customer service representative indicating, in effect, that while the company had not received any other complaints, it was possible that Complainant's pager was not picking up signals at all times. [RX 56]. Based on this letter, as well as additional phone conversations between Respondent and the pager company representatives indicating that while the company did replace Complainant's pager, they found nothing wrong with it, [T at 597], Respondent questioned the veracity of Complainant's story, and issued the warning letter for delay of freight. [T at 541-542]. In response to the warning letter, Complainant filed a grievance dated August 11, 1989. Complainant maintained that he had no knowledge that the beeper unit was malfunctioning and, therefore, requested that the warning letter be rescinded. [RX 57].

   12) An August 7, 1989 warning letter for delay of freight. On August 3, 1989 Complainant was driving from New Lisbon, Indiana to Columbus, Ohio. At 12:15 a.m. Complainant felt unable to continue driving due to fatigue. He therefore pulled over and "napped" from 12:15 a.m. until he resumed driving at 1:30 a.m. He arrived at Respondent's Columbus, Ohio terminal at 4:00 a.m. [RX 58; T at 55]. On August 7, 1989 Complainant received a warning letter stating that his "log of August 2 and 3, 1989 indicates that [he has) delayed freight and equipment by at least 1 1/4 hours due to . . . taking an extra break period." The letter indicated that future like occurrences would result in more severe discipline. [RX 58].

   13) A September 26, 1989 warning letter for delay of freight. On September 23, 1989 Complainant was driving from Mt. Airy, North Carolina to Charlotte, North Carolina. At 1:45 a.m. Complainant felt unable to continue driving due to fatigue. He therefore pulled over and took a nap until 2:45 a.m., at which time he resumed driving to Charlotte. Complainant arrived in Charlotte, North Carolina at 4:45 a.m. [T at 68-70].

   Between 4:45 a.m. and 2:00 p.m. Complainant was off duty. He resumed driving from Charlotte, North Carolina to Columbus, Ohio at 3:00 p.m. At 5:00 p.m. he stopped to eat for one hour in Mt. Airy, North Carolina. Respondent automatically calculates such a one hour eating break into the drivers schedule. At 10:30 p.m. he "felt a little tired" and stopped for a hour coffee break at Frazier's Bottom, West Virginia. He did not notify anyone of this, just as he failed to notify anyone regarding the fatigue breaks. [RB at 13, T at 71].

   Complainant was issued a warning letter dated September 26, 1989. The letter specifies that his logs dated September 22 and 23 indicate a delay of freight and equipment by at least one hour due to his taking an extra break. It goes on to warn that future similar actions would lead to more severe disciplinary action. [RX 58].

   Complainant responded to this warning letter by filing a grievance through his union alleging harassment and intimidation by Respondent. He specifically charged Respondent with coercing him to operate his truck while fatigued and requested that the warning letter be rescinded. [RX 58].

   15) On October 16, 1989 Complainant was issued a notice of request for a formal hearing to discuss his overall work record. [RX 65]. The hearing was originally scheduled for October 27, 1989, but was rescheduled for November 3, 1989. [Id.].

   16) An October 18, 1989 warning letter for refusing to work at time of dispatch. Complainant finished his October 16, 1989 run and arrived at the Columbus, Ohio terminal at approximately 5:35 p.m. He then drove to his home in Dayton, Ohio to go to sleep and to wait for his next dispatch. [T at 73].

   The Prima Facie Case

   In order to establish a prima facie case, the Complainant must prove: 1) that he is engaged in protected activity under the Act; 2) that he was subject to adverse employment action; and 3) that there was a causal link between his protected activity and the adverse employment action. Moon v. Transport Drivers, Inc., 836 F.2d 226, 229 (6th Cir. 1987).

   Complainant must also show that he was subject to an adverse employment decision, and that there is a causal link between his protected activity and the adverse employment action. Complainant was discharged at the November 3, 1989 disciplinary hearing. [DO at 13]. His discharge was upheld at the OJSC hearing on November 14, 1989. [DO at 14]. This constitutes an adverse employment decision.

   It is not disputed that Complainant failed to call the dispatcher and notify Respondent that he would be delayed due to fatigue as required pursuant to Rule 8. Moreover, Complainant has not provided a persuasive reason for not calling in as required. Nonetheless, the evidence as a whole indicates that Respondent issued the warning letters of August 7, 1989 and September 26, 1989 for delay of freight caused by Complainant's fatigue breaks. Consequently, Respondent has not shown that these warning letters were issued only for legitimate, nondiscriminatory reasons.

   b) Warning Letter of October 18, 1989

    Respondent alleges that Complainant received the October 18, 1989 warning letter only for failing to "remove himself from the board as allowed by Rule 3(A) before the dispatch call... [RB at 15]. Because he failed to call in before receiving his dispatch call, Complainant was marked as refusing work and was subject to disciplinary action pursuant to Rule 3(B). Respondent also more generally reiterates that it does not discipline employees for refusing work on account of fatigue.

   Respondent maintains that enforcement of Rule 3(A) is necessary to keep drivers from marking off after they have been dispatched for an undesirable run. This is an ostensibly legitimate reason for requiring employees to comply with Rule 3(A). Nevertheless, the evidence fails to establish that in this instance Complainant was not also disciplined for refusing to operate a motor vehicle while fatigued.

   First, as with the warning letters of August 7, 1989 and September 26, 1989, discussed above, the warning letter of October 18, 1989 says nothing about disciplining Complainant for failing to comply with the legitimate work rule. In fact, the warning letter specifically indicates that Complainant refused a dispatch call because of claimed fatigued, and, therefore, is receiving a warning letter for refusing work. [RX 15].

   Compare this warning letter with an October 24, 1988 warning letter issued to Complainant for refusing a dispatch due to sickness. That letter specifically states the following:

   "According to Columbus Work Rule 3(B), 'Drivers reporting of f sick at dispatch time will be considered as refusing to work and subject to disciplinary action." [RX 87]. By designating the work rule violated, Respondent made it clear that Complainant was disciplined not for refusing work due to sickness, but for failing to call off prior to dispatch.

Dual Motive

   Respondent nonetheless may still avoid liability if it can show by a preponderance of the evidence that it would have discharged Complainant even in the absence of the protected conduct. McGavock, supra.

   Initially, it may be argued that Respondent had a mixed motive in issuing Complainant the warning letters of August 7, 1989, September 26, 1989, and October 18, 1989 in the first place. However, as discussed above, while Complainant undeniably did fail to follow certain company work rules, the evidence as a whole indicates that the warning letters were issued for protected activity; specifically, delay of freight and refusal to work due to fatigue. Moreover, assuming that failure to comply

with the local work rules was a factor, Respondent has not shown by a preponderance of the evidence that it would have sent the warning letters had the protected activity not occurred.

   The next incident not directly involving activity protected by the STAA is the October 16, 1989 warning letter for excessive absenteeism. [DO at 11 & 12]. It is not disputed that Complainant was in violation of Article 42 of the NMFA, nor that there are valid reasons why employees need to provide 48 hours of notice before taking time off for union activity. However, the facts surrounding this warning letter make it highly questionable whether firing Complainant over this incident meets the "just cause" element specified in Article 48 of the NMFA. First, Respondent admittedly had not enforced this provision before January of 1989. [DO at 12]. Secondly, it is the business representative for the union stewards who is charged with asking for time off within the 48 hour time frame established under Article 42 of the NMFA. Consequently, Complainant was sent a warning letter in his capacity as a union steward in order to get the attention of the union business representative. [T at 554]. Finally, Mr. Raver's warning letter issued for the same incident was revoked in a deal made between Respondent and the union. [DO at 13]. For these reasons, it is highly questionable whether Respondent could have terminated Complainant for "just cause" on this basis.

   The sole remaining warning letter not related to protected activity was issued on November 1, 1989 for failure to answer a dispatch call. [DO at 14]. However, not only did Complainant provide a reasonable excuse for this in the form of a letter from the beeper company, but Respondent itself admitted that this letter played no part in its decision to terminate Complainant. [DO at 15].

   This leaves the three warning letters issued in violation of the Surface Transportation Assistance Act as the main factors in Respondent's decision to terminate Complainant. Considering especially that in mixed motive cases the employer "bears the risk that the influence of legal and illegal motives cannot be separated...", Pogue v. U.S. Department of Labor, 940 F.2d 1287, 1291 (9th Cir. l99l)(citations omitted), Respondent has not shown by a preponderance of the evidence that it would have discharged Complainant in the absence of the protected activity.

   Last, through this entire period, Complainant counseled other drivers of their rights, including those under the STAA. [T at 250-251]. While the particular incidents which directly involved Complainant arose in late summer and fall of 1989, the record discloses that for much of the period he was employed by Respondent, Complainant was counseling other drivers on this issue. Indeed, several of the warning letters concerned his counseling activities, although it is not clear from the letters of February 2, 1989, February 21, 1989, and March 24, 1989 exactly what Complainant was discussing with other employees during the discussions. This activity was criticized on a continuing basis by Respondent, and clearly can be considered a factor in evaluating Respondent's actions.

   Respondent's strong interest in maintaining on time delivery of freight can not be questioned. It exists in a competitive and hostile environment that leaves little margin for second-rate performance. Obviously, Respondent can not afford many instances such as the controversy with the West Virginia Highway Patrol, regardless of whether or not Complainant was at fault. Complainant in this case is not blameless; he failed to comply with various work rules and then was disciplined a number of times prior to any fatigue related incidents. When Respondent's displeasure with his performance was clearly evident, he nonetheless continued in practices that elicited little sympathy from his employer or, apparently, the union, which did not consider his continued employment a high priority. Nonetheless, application of the Act leaves no alternative but to find in favor of Complainant.

   Initially, there is enough question regarding some of the non fatigue related disciplines to raise not only the inference that Complainant was treated differently from other employees, but that Respondent had determined early on to fire him. Activity only mildly rebuked or not at all punished when taken by others was taken seriously against Complainant. Three examples will suffice. Complainant's protecting himself from "agreeing" to a serious traffic infraction, one which ended up being pleaded to almost a non-offense, resulted in a thorough testing of his truck by Respondent, something not done in other situations involving speeding violations. The warning letter for excessive absenteeism was revoked in the case of one union steward, but not Complainant. Finally, driver logs produced by Respondent in order to distinguish properly marked logs from Complainant's inaccurate" logs turned out to be inaccurate themselves. [T at 383]. Incidents such as this undermine Respondent's argument that Complainant would have been legitimately terminated notwithstanding the three fatigue related incidents.

   The Respondent is ordered immediately to reinstate William W. Smith to the position that he occupied prior to November 3, 1989.

   The Respondent is liable to William W. Smith for all loss of income resulting from its unlawful discharge of Complainant on November 3, 1989. Determination of this amount may require further proceedings. Therefore, in the event that the parties are unable to stipulate as to back wages owed, a hearing is scheduled for January 11, 1993 in the Franklin County Common Pleas Court, Courtroom 4a, 4th floor, Hall of Justice, 369 S. High St., Columbus, Ohio 43292, commencing at 9:30 a.m.

       Nahum Litt
       Chief Judge