DATE: February 11, 1992
CASE NO. 91-STA-14

IN THE MATTER OF

LEVY TAYLOR,
    COMPLAINANT,

    v.

MR. MIKE BROADHEAD, MANAGER,
AND RYDER DISTRIBUTION RESOURCES,
    RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

    Pursuant to Section 405 of the Surface Transportation Assistance Act of 1982 (STAA or the Act), 49 U.S.C. app. § 2305 (1988), this case is before me for review of the Recommended Decision and Order (R.D. and O.) issued by the Administrative Law Judge (ALJ) on October 24, 1991. The ALJ found that Complainant established retaliatory discharge in violation of the Act, and ordered reinstatement, lost wages and attorney fees. Both parties have filed briefs before me.¹

    If the ALJ's factual findings are supported by substantial evidence on the record considered as a whole, they are conclusive. 29 C.F.R. § 1978.109(c)(3). Upon consideration of the record, I find that the ALJ's description of the procedural history, and his findings of fact and credibility determination. are supported by substantial evidence in the record, and I accept them. R.D. and O. at 1-5. In addition, I find the ALJ's legal conclusions to be in accordance with the caselaw and prior decisions of the Secretary.

    The STAA prohibits discriminatory treatment of employees in either of two "work refusal n circumstances. Under Section 2305(b), an employee is protected if he refuses 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 because of the employee's reasonable apprehension of serious injury to himself pr the public due to the unsafe condition of such equipment. Complainant did not allege that his refusal was because of an unsafe vehicle, and the ALJ analyzed the case under the when clause of Section 2305(b).²

    The ALJ correctly set forth the applicable burdens of proof and production in cases arising under Section 2305. It is well established that in order to prove a prima facie case, the employee must show that he engaged in protected activity of which the employer was aware and that the employer took some adverse action against him which was most likely in retaliation for the protected conduct. McGavock v. Elbar. Inc., Case No. 86-STA-5, Sec. Final Dec. and Order, Jul. 9, 1986, slip op. at 10-11; accord Moon v. Transport Drivers. Inc., 836 F.2d 226, 229 (6th Cir. 1987). The dispositive issue in this case is whether Complainant's refusal to work was a protected activity under the STAA.

    The ALJ's determination that Complainant's refusal to make the trip with the assigned co-driver was protected conduct under the STAA is in accordance with the relevant prior decisions of the Secretary on the issue of protected conduct. See generally Boone v. TFE. Inc., Case No. 90-STA-7, Sec. Final Dec. and Order, Jul. 17, 1991, slip op. at 5-7, appeal docketed, No. 91-2659 (4th Cir. Sept. 16, 1991). The fact that Complainant may have had other non-safety related reasons for refusing the assigned run with this co-driver, e.g. getting paid the same amount but doing more of the driving, does not diminish the protection afforded to his safety-related reason for refusing the assignment. See generally Assistant Secretary for Occupational Safety and Health and Moravec v. HC & M Transportation. Inc., Case No. 90-STA-44, Sec. Dec. and Order of Remand, Jul. 11, 1991, slip op. at 7-8; Robinson v. Duff Truck Line. Inc., Case No. 86-STA-3, Sec. Final Dec. and Order, Mar. 6, 1987, slip op. at 17-18, aff'd sub nom. Duff Truck Lines v. Brock, No. 87-3324 (6th Cir. Jan. 24, 1988).

    Accordingly, as supplemented herein, I adopt and append the Recommended Decision and Order of the ALJ, and

¹The regulations provide 30 days from issuance of the ALJ's R.D. and O. for the parties to file briefs before the Secretary. 29 C.F.R. § 1978.109(c)(2) (1991). Here, the ALJ's R.D. and O. was issued on October 24, 1991, Respondent's brief was filed on December 20, 1991, and Complainant's brief was filed on January 10, 1992. In the interest of fairness, both briefs are accepted and have been considered despite being filed beyond the prescribed time.

²Respondent asserts that Section 2305(b) is not intended to cover refusals to drive because of safety concerns over an assigned co-driver, but only refusals to drive because of the unsafe condition of a vehicle. This assertion is contrary to the decision in Self v. Carolina Freight Carriers Corporation, Case No. 89-STA-9, Sec. Final Dec. and Order, Jan. 12, 1990, slip op. at 9, indicating that the physical condition of a driver that could affect the safe operation of the equipment would fall under the "because" clause of Section 2305(b). See also Mace v. ONA Delivery Systems. Inc., Case No. 9l-STA-10, Sec. Final Dec. and Order, Jan. 27, 1992, slip op. at 7-8.