DATE: October 29, 1992
CASE NO. 92-STA-15

IN THE MATTER OF

ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH,

          PROSECUTING PARTY,

     AND

WARREN E. KIMBALL, SR.,

          COMPLAINANT,

     v.

MISTY MOON TRANSPORTATION, INC.,
MAURICE IAN MORANG, PRESIDENT, AND
ROADWAY PACKAGE SYSTEMS, INC.,

          RESPONDENTS.


BEFORE: THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     Before me for review is the August 20, 1992, [Recommended]
Decision and Order Dismissing Complaint (R.D. and O.) of the
Administrative Law Judge (ALJ) in this case arising under Section
405, the employee protection provision, of the Surface
Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app.
§ 2305 (1988).  The Acting Assistant Secretary and Roadway
Package Systems, Inc. (Roadway), have filed briefs, as permitted
by 29 C.F.R. § 1978.109(c)(2) (1991).
     Complainant alleged that Respondents discharged him because
he raised safety concerns about Roadway's trailers, was required
to drive longer than the ten hour daily limit, and threatened to
[PAGE 2]
complain about Roadway's infractions to government agencies.  The
STAA prohibits an employer from discharging an employee for
filing a complaint or causing the institution of proceedings
related to violation of a safety regulation.[1]  49 U.S.C.
§ 2305(a).
     Complainant drove a tractor-trailer for Respondent Misty
Moon Transportation, Inc. (Misty Moon), which in turn contracted
with Roadway to provide long-haul transportation of packages.
The ALJ found that Complainant engaged in protected activities,
suffered an adverse action, and that the proximity between
Complainant's protected activities and his discharge raised the
inference that he was fired for engaging in the protected
activities.  R.D. and O. at 14.  The ALJ therefore found that
Complainant established a prima facie case of retaliatory
discharge.  Id.  He credited Respondents' proffered
legitimate reason for the discharge, i.e., Complainant's contentious
attitude about, and failure to abide by, Roadway's uniform
requirement for drivers.  After examining the evidence thoroughly
and assessing the credibility of the witnesses, the ALJ found
that Complainant did not persuade that the asserted reason for
his discharge was a pretext for discrimination.  Id. at
14-16.
     With one exception corrected below, the ALJ's extensive
findings of fact, R.D. and O. at 3-14, are supported by
substantial evidence on the record taken as a whole and therefore
are conclusive.  29 C.F.R. § 1978.109(c)(3).  The ALJ's
credibility determinations likewise are based on the record
evidence.[2]   I discuss below the issues raised in the Acting
Assistant Secretary's Brief.
     Both parties agree that Complainant made a prima facie case
of discriminatory discharge.  The Acting Assistant Secretary
contends, however (Brief at 14), that the ALJ erred in analyzing
this as a pretext case, rather than as a dual motive case.  The
dual motive analysis applies where the of fact concludes that the
complainant's protected activity was a motivating factor in the
decision to discharge.  Ass't Sec. and Moravec v. HC & M
Transportation, Inc., No. 90-STA-44, Final Dec. and Ord.,
Jan. 6, 1992, slip op. at 12 n.7; Dartey v. Zack Co. of
Chicago, Case No. 82-ERA-2, Dec. and Final Ord., Apr. 25,
1983, slip op. at 9. Since the ALJ concluded that "the
termination of [Complainant] resulted solely from pique at his
repeated contemptuous disregard of [Roadway's] policy regarding
appearance and attire," R.D. and O. at 15, the ALJ correctly
applied the pretext analysis rather than the dual motive analysis.
     Citing Roadway's treatment of the hours-of-service
regulation, the Acting Assistant Secretary argues (Brief at 15-
16) that Roadway's "animus towards DOT safety regulations"
[PAGE 3]
supports the view that Complainant's safety complaints motivated
his dismissal.  The record evidence indicates, however, that
Roadway generally complied with the regulations.  Linehaul
coordinator Winer testified that he warned Complainant not to
violate the hours-of-service requirements, or he would not be
dispatched.  T.2 74.  Declining to dispatch a driver when doing
so would cause him to violate the hours of service limit
indicates compliance with DOT regulations, rather than animus.
In addition, when Complainant informed Winer that someone had
altered Complainant's log to remove two over-hours situations,
Winer stated that he wanted the logs to be correct.  T.2 71-73.
Contrary to the Acting Assistant Secretary's contention, I find
that Roadway "charged" Complainant with two over-hours
violations, RX 28, shows that in this case Roadway took the
regulation seriously and wanted drivers to observe it.
     Two other truckers testified that they felt compelled to
"doctor" their logs for fear that their contracts with Roadway
would be canceled if they showed over-hours violations.  T. 62-63
(Gerald Brooker); CX 5 at 13-14 (Charles Miller).  Miller stated
that on one occasion, Winer directed him to change his log to
avoid an over-hours violation of one quarter hour, and he did so.
CX 5 at 14, 20.[3]   While Miller's testimony is of concern, I
note that Respondent had no opportunity to ask Winer about it;
Miller's statement first came to light at a deposition taken
several weeks after the hearing otherwise had closed.  Other
drivers indicated that they sometimes doctored their logs because
of their own perceptions, rather than at Roadway's direction.
There was no evidence indicating that Roadway condoned such a
practice.  When Complainant threatened to report hours-of-service
violations to DOT, Winer told Complainant to do so, thereby
indicating that he believed Roadway had nothing to fear.  T.2 60.
     Winer stated that while Complainant frequently reported
safety defects in vehicles, other drivers did so "a lot more
frequently than [complainant] did."  T.2 40.  Another driver who
reported defects stated that he was not reprimanded for doing so.
See CX 5 at 19-20 (Miller).  Ample evidence supports the ALJ's
finding, R.D. and O. at 16, that Roadway routinely inspected
vehicles and repaired defects, including the pentle hook defect
Complainant reported.[4]   See, e.g., T. 175-181,
187-188, RX 5.      Thus on this record, I do not agree with the
Acting Assistant Secretary's contention, Brief at 16, that
Roadway had a negative attitude toward employees reporting safety
defects.
     The Acting Assistant Secretary's final argument is that
Roadway's asserted legitimate reason for firing Complainant,
refusal to abide by the company's uniform requirement, is not
credible because other drivers were not discharged for their
[PAGE 4]
violations of the requirement.  Brief at 16-21.  The gravamen of
the argument is that Roadway never applied to Complainant the
allegedly usual discipline for a uniform violation, i.e.,
"bobtailing," or sending the driver home without a paying load.
Rather, after warning Complainant that he would be bobtailed,
Respondents instead fired him.
     The record reveals that Roadway did not always use
bobtailing as the discipline for all violations of the uniform
policy, but rather resorted to it when it was the only
alternative to dispatching a driver out of uniform.  For example,
Winer bobtailed a driver for wearing non-uniform trousers because
Roadway could not dispatch him without trousers, and likewise
bobtailed a temporary local driver who was wearing only a part of
the jumpsuit uniform.  T.2 47-48, 53.
     When owner-operator Taylor showed up for work out of
uniform, Taylor always changed into the required uniform prior to
being dispatched.  T.2 21.  Roadway did not bobtail Taylor since
he could, and ultimately did, wear the proper uniform.  T.2 50.
Nor did Roadway bobtail Complainant, because when told he was
violating the uniform rule, Complainant would remove the
nonconforming hat, and thus could be dispatched in uniform.[5] 
T.2 50, 54.
     When Roadway told Taylor that his contract to haul packages
was in jeopardy (the equivalent to "firing" an owner-operator),
Taylor stopped reporting for work out of uniform.  T.2 22-23.
Other drivers similarly agreed to abide by the uniform rule when
reprimanded.  See T.2 50, 211; RX 11, 15, 32.
     Despite several direct warnings to eliminate the non-uniform
hat, Complainant would still report to Roadway's terminal wearing
it.  T.2 28-29, 31, 35; RX 27.  Nor did complaints to
Complainant's direct boss, Morang, accomplish conformance.
T.2 12.  Morang told Complainant to appease Roadway and comply
with the rule, but Complainant did not do so.  T. 37-40.
Instead, Complainant told Morang that the uniform requirement was
the equivalent of "stupid."  T. 39.
     When Winer felt that he had reached the limit of his
patience concerning Complainant's nonconforming hat, Winer
suggested to the Hartford hub manager that Complainant should be
fired.  T. 34-37; RX 19.  The hub manager agreed that Complainant
could not continue to drive for Roadway.  T. 208-210.  Morang
then fired Complainant.  T. 57.
     Roadway and Morang tried, but failed, to get Complainant to
take the uniform requirement seriously and to comply with it; the
other drivers capitulated and conformed.  The record therefore
supports the ALJ's finding, R.D. and O. at 16, that Complainant
did not establish that he was treated differently from another
[PAGE 5]
similarly situated driver.  See, e.g., Dysert v.
Westinghouse Elec. Corp., Case No. 86-ERA-39, Final Dec. and 
Ord., Oct. 30, 1991, slip op. at 5 (no pretext or disparate treatment shown
where other employee did not engage in same degree of aggressive
behavior as complainant).
     I find that Complainant has not shown that dismissing him
for failure to abide by the uniform requirement was a pretext for
discrimination.  The ALJ correctly applied the burdens of
production and persuasion, and with the one factual correction
noted, I adopt his decision, which is appended.  Accordingly, the
complaint is DISMISSED.
     SO ORDERED.
                              LYNN MARTIN
                              Secretary of Labor
Washington, D.C.


[ENDNOTES]
           
[1]   The parties stipulated that Complainant is an employee
under the STAA, that Respondents are employers subject to the
STAA, and that for the purposes of this proceeding, Roadway and
Misty Moon Transportation, Inc., were joint employers of
Complainant.  T. 6-7.  (Since the pages of the volumes of the
hearing transcript were not consecutively numbered, "T." refers
to the first volume and "T.2" refers to the second).

[2]   The record evidence strongly supports the ALJ's finding
that Complainant's testimony was not convincing, particularly
when he testified that he never raised the issue of lack of
compensation for the added stop at Woburn on the Portland-
Hartford-Portland run. R.D. and O. at 15. Two witnesses
testified that Complainant spoke to them about getting
compensation for the extra time involved in stopping at Woburn.
T. 41-42 (Morang), T.2 27-28 (Winer). Complainant simply was not
believable when he denied doing so, T. 145, because Complainant
earlier had complained about and negotiated to be paid extra
compensation for the time it took to fuel the truck. T. 20, 90.


[3]   In light of Miller's testimony that Winer once told him to
change his log, the ALJ erred in stating, R.D. and O. at 6, that
Miller "admitted that he was not told to [doctor his driver log]
by Morang or any [Roadway] representative." Winer worked for
Roadway as the night shift linehaul coordinator at the Hartford
terminal. T.2 15.


[4]   In a tandem trailer, a pentle hook is necessary to attach
the rear trailer to the forward trailer.


[5]   Roadway did not require drivers to wear a hat, but if
they wore one, it had to be the cap that Roadway issued.
T. 38-39; T.2 17.