DATE:  February 10, 1994
CASE NO. 93-STA-45


IN THE MATTER OF

DAVE R. HOMEN,

          COMPLAINANT,

     v.

NATIONWIDE TRUCKING, INC.,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                            DECISION AND ORDER

     Before me for review is the November 5, 1993, [Recommended]
Decision and Order (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 ALJ
found that Complainant Homen did not establish a violation of the
STAA and recommended dismissal.  
     Although permitted by 29 C.F.R. § 1978.109(c)(2), the
parties did not file briefs before me.  I have considered the
entire record before the ALJ.
     The ALJ's findings of fact, R.D. and O. at 2-3, are
supported by substantial evidence on the record taken as a whole,
and therefore are conclusive.  See  29 C.F.R. §
1978.109(c).  The evidence also supports the ALJ's determination
of witness credibility.  R.D. and O. at 3.  I agree with the
ALJ's dismissal recommendation, and write to clarify the elements
of a prima facie case and the burden of proof under the STAA.
     Under the STAA, it is unlawful to discharge an employee
because he has "filed any complaint or instituted or caused to be
[PAGE 2]
instituted any proceeding 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."  49
U.S.C. § 2305(a) [the "complaint" section].  Section 2305(b)
prohibits discrimination against employees for refusing to drive
in either of two circumstances.  An employee may not be
disciplined 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. . ." ["when clause"].  Discipline also
is prohibited when an employee refuses to operate a vehicle
"because of the employee's reasonable apprehension of serious
injury to himself or the public due to the unsafe condition of
[the] equipment" ["because clause"].  The second ground for
refusal further requires that the unsafe condition must be such
that a reasonable person, under the circumstances, would perceive
a bona fide hazard, and that the employee must have sought from
his employer, and have been unable to obtain, correction of the
unsafe condition.  49 U.S.C. app. § 2305(b).
     I. The Complaint Section
     To establish a prima facie case under the STAA's complaint
section, a complainant must show that he engaged in protected
activity, that he was subjected to adverse action, and that the
respondent was aware of the protected activity when it took the
adverse action.  Complainant must also present evidence
sufficient to raise the inference that the protected activity was
the likely reason for the adverse action.  Auman v. Inter
Coastal Trucking, Case No. 91-STA-00032, Final Dec. and
Order, July 24, 1992, slip op. at 2.
     The parties agreed that on May 18, 1993, Homen refused to
drive the vehicle to which he was assigned because it had bad
brakes.  R.D. and O. at 2.  They further stipulated that
Respondent Nationwide Trucking, Inc. (Nationwide) did not require
him to drive the vehicle, instead assigned him to perform other
duties that day, and that Homen refused to perform the alternate
duties.  Id.  It is undisputed that Homen was fired the
same day for insubordination.  Id.  
     Homen testified that he was discharged after he threatened
to make, and actually made, a report about the safety of
Nationwide's vehicles to the California Highway Patrol (CHP).  
T. 26-29.  Two witnesses stated, however, that Homen threatened
to report Nationwide to the CHP only after he had been
discharged for insubordination.  T. 109 (Jones), 145 (Fernandez). 
Based on all of the testimony and documentary evidence, the ALJ
credited Jones and Fernandez' version of the sequence of events,
rather 
[PAGE 3]
than Homen's, and found that "complainant did not say anything to
Jones or Fernandez about going to the CHP before he was told he
was terminated."  R.D. and O. at 3.  
     Homen engaged in protected activity when he threatened to
report the condition of Nationwide's vehicles to the CHP. 
See, Helmstetter v. Pacific Gas & Elec. Co., Case
No. 91-TSC-1, Dec. and Order, Jan. 13, 1993, slip op. at 7
(threat to report spill of toxic substance protected under
analogous employee protection provision of Toxic Substances
Control Act); Couty v. Arkansas Power & Light Co., Case
No. 87-ERA-10, Sec. Dec. and Ord., June 20, 1988, adopting ALJ
R.D. and O. of Nov. 16, 1987, slip op. at 9, reversed on other
grounds, 886 F.2d 147 (8th Cir. 1989) (threat to make report
to government agency constituted protected activity under
analogous provision of the Energy Reorganization Act of 1974
(ERA)).
     Clearly, reporting Nationwide to the CHP would also be a
protected activity.  Homen introduced no documentary evidence or
other witnesses to corroborate his testimony that he spoke with
the CHP about Nationwide's safety record, however. 
     Discharging Homen clearly constituted adverse action against
him.  See the text of the STAA, 49 U.S.C. § 2305(a)
and (b), (prohibiting discharge for engaging in protected
activities).  
     I agree with the ALJ that Nationwide's witnesses credibly
testified that Homen first threatened to go to the CHP (and other
government agencies) after he was fired.  The Nationwide managers
were not aware that Homen had engaged in any protected activities
when they discharged him.  Therefore, Homen did not establish a
prima facie case of a violation of the complaint section.
     II. The Because Clause  
     I find that a person in the same circumstances as Homen
would have a reasonable apprehension of serious injury because of
defective brakes.  Nationwide acknowledged that the truck was
scheduled for a maintenance check a few days after Homen refused
to drive it, RX 1, and that the front brakes were replaced during
the scheduled maintenance.  RX 4.  There was no testimony that
Nationwide tried to get Homen to drive the truck notwithstanding
the condition of the brakes.  Rather, all parties agree that
Nationwide assigned Homen to other duties that day.
     I therefore find that Homen did not establish a prima facie
case of a violation of the "because clause" since he was not
forced to drive the vehicle and Nationwide assigned him to duties
other than driving.  See Stiles v. J.B. Hunt
Transportation, Inc., Case No. 92-STA-34, Dec. and Order,
Sept. 24, 1993, slip op. at 6 (no prima facie case under because
clause where complainant succeeded in getting defect corrected).
     III. The Burden of Persuasion
     Assuming that Homen established a prima facie cause under 
[PAGE 4]
either the complaint section or the because clause, Nationwide
had the burden of articulating a legitimate reason for
discharging him.  See Asst. Sec. and Killcrease v. S &
S Sand and Gravel, Inc., Case No. 92-STA-30, Final Dec. and
Order, Feb. 5, 1993, slip op. at 7.  Nationwide's witnesses
articulated a legitimate reason for firing Homen, his
insubordinate behavior.  As the ALJ noted, on the day before
Homen's discharge, there was a change in the terminal manager. 
R.D. and O. at 3.  When Homen refused to drive the only vehicle
available at the warehouse, he also insisted on being paid for
four hours' work and being given a slip to collect unemployment
compensation for an additional four hours that day.  T. 153.  To
justify paying Homen, the acting terminal manager, John Jones,
asked him to sweep the warehouse.  T. 101; RX 2.  Homen refused
to sweep and stated that he was hired only to drive.  T. 101
(Jones), 128-129 (Redfeather), 152 (Fernandez); see also RX 2.
     Jones requested that Homen, who was a part time, on-call
employee, return the keys to the warehouse since only full time
employees should open and close the doors.  T. 104, 140.  Homen
got very upset about having to return the warehouse keys.  
T. 104; RX 1; RX 2.  Penny Redfeather, a customer service support
employee, had her infant son with her at the office that day and
became afraid when Homen got angry.  T. 129.  When Jones prepared
an employee warning report citing Homen for his insubordinate
behavior, Homen refused to sign it.  T. 105-106; RX 3.  Homen
told Jones that "he was messing with the wrong guy."  T. 107
(Jones), 143 (Fernandez).  After these incidents, Jones and
National Sales Manager Ramon Fernandez decided to fire Homen.  
T. 108,  142-143.
     Homen had the burden of proving that the reasons Nationwide
stated for his discharge were not credible, and that the real
reason was retaliation for his safety complaints.  See
Stiles v. J.B. Hunt Transportation, Inc., Case No. 92-STA-
34, Dec. and Order, Sept. 24, 1993, slip op. at 7.  I find that
Homen did not meet this burden.  In view of several witnesses'
testimony that Homen caused a scene with his acting manager, I
find that insubordination was a credible reason for firing him. 
See Couty v. Arkansas Power & Light Co., Case No.
87-ERA-10, Final Dec. and Order on Remand, Feb. 13, 1992, slip
op. at 2 (no violation of ERA employee protection provision where
complainant discharged for abusive, disruptive, profane, and
threatening behavior toward supervisors).
     Nationwide did not pressure Homen to drive the vehicle with
faulty brakes, which was scheduled for maintenance in the near
future.  Rather, the acting manager rationally asked Homen to do
other duties that did not involve driving.  Homen's assertion
that Jones told him he was being fired for refusing to drive and 
[PAGE 5]
for complaining to the CHP was not credible.  Accordingly, the
complaint is DISMISSED.
     SO ORDERED.

     ROBERT B. REICH
     Secretary of Labor

Washington, D.C.