DATE:  August 3, 1994
CASE NO. 94-STA-00002


IN THE MATTER OF

ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH,

          PROSECUTING PARTY,

     and

DAVID CHAPMAN,

          COMPLAINANT,

     v.

T.O. HAAS TIRE COMPANY,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR 


                         FINAL DECISION AND ORDER
     This proceeding arises under the employee protection
provision, Section 405, of the Surface Transportation Assistance
Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1988), and the
implementing regulations at 29 C.F.R. Part 1978 (1993).  On
April 8, 1994, the Administrative Law Judge (ALJ) issued a
[Recommended] Decision and Order (R.D. and O), finding that on
March 1, 1993, Respondent discharged Complainant, David Chapman,
in violation of the STAA.  I agree. [1] 
     On February 25, 1993, Chapman engaged in conduct protected
under the because clause of Section 405(b). [2]   The
because clause prohibits an employer from discharging an
employee for refusing to operate a motor vehicle "because of the
employee's reasonable apprehension of serious injury to himself
or the 
[PAGE 2]
public due to the unsafe condition of such equipment."  49 U.S.C.
app. § 2305(b).  The clause also applies to conditions, such
as weather, which make the operation of a commercial vehicle on
the road a safety hazard.  Robinson v. Duff Truck Line,
Inc., Case No. 86-STA-3, Sec. Dec., Mar. 6, 1987, slip op. at
18-22, aff'd sub nom. Duff Truck Line, Inc. v. Brock, No.
87-3324 (6th Cir. 1988) (LEXIS, Genfed Library, Court of Appeals
file).  In addition, the employee, ordinarily, should communicate
the reason for the work refusal to the employer, or at least an
attempt at such communication should be made.  Asst. Sec. and
Osborn v. Cavalier Homes of Ala., Inc., Case No. 89-STA-10,
Sec. Dec., Jul. 17, 1991, slip op. at 3-4 and n.1, citing Simpson v.
Federal Mine Safety & Health Review Comm'n, 842 F.2d 453, 459
(D.C. Cir. 1988); LeBlanc v. Fogleman Truck Lines, Inc.,
Case No. 89-STA-8, Sec. Dec., Dec. 20, 1989, slip op. at 12-13,
aff'd sub nom. Fogleman Truck Lines, Inc. v. Martin, No.
90-4114 (5th Cir. Apr. 17, 1991); Robinson, slip op. at 21-22.
     On February 25, Chapman was scheduled to make deliveries in
Tonganoxie and Oskaloosa, Kansas.  By 6:00 a.m. that morning, it
had snowed six to eight inches in Lawrence, Kansas, where Chapman
had stayed overnight.  Transcript (T.) at 38.  Tonganoxie is
located northeast of Lawrence on a two-lane road that leads
northwest to Oskaloosa.  Complainant's Exhibit (CX) 7; T. at 75. 
Chapman called the Kansas Highway Patrol and received a recorded
message that all major roads were open, and Chapman proceeded to
make his delivery in Lawrence.  T. at 39.  From the customer's
location in Lawrence, Chapman telephoned his terminal in Lincoln,
Nebraska, for advice.  Although he called at approximately 7:40
a.m., when his supervisors and sales representative usually were
in the terminal, the order desk clerk who answered the telephone
was unable to locate any other personnel and was unable to answer
Chapman's inquiry about what he should do.  T. at 42-44, 110-11,
141, 183.  The clerk testified that he left a message for
Chapman's immediate supervisor, Jerry Knapp, "something about
Dave [Chapman] and the snowstorm and him [Chapman] not knowing
exactly what to do."  T. at 118.  Knapp testified that he got a
message between 11:00 a.m. and 12:00 noon, that Chapman did not
make the deliveries in Tonganoxie and Oskaloosa, that the roads
were too slick, and that he was coming home.  T. at 233.
     Complainant decided not to make his deliveries in Tonganoxie
and Oskaloosa because of the elevation difference and because the
highway between Tonganoxie and Oskaloosa is winding.  T. at 45;
see also T. at 76.  Moreover, his truck was
practically empty.  With that in mind, Chapman feared that the
road would be dangerous.  T. at 45.  Instead, he made his
delivery in Lawrence and made another in Topeka, which he had
missed the previous day because of the incoming storm, and then
headed back to the 
[PAGE 3]
terminal in Lincoln.  He arrived in Lincoln at between 2:00 p.m.
and 3:00 p.m., after having been on duty or driving for probably
seven to eight hours.  See T. at 52, 239.  Topeka is
located twenty-one miles west of Lawrence on the Kansas Turnpike,
Interstate 70, a four-lane divided highway, and Chapman thought
the turnpike would be the cleanest road in Kansas.  T. at 44,
185.  Chapman explained that the roads west of Lawrence, to
Topeka and Lincoln, were better than the roads east of Lawrence,
to Tonganoxie and Oskaloosa.  T. at 240.
     There is no dispute that Chapman's truck was practically
empty.  It also appears that the temperature in the area remained
below freezing the entire day of February 25.  CX 4, 5.  The
record fully substantiates Chapman's claim that the terrain
around Tonganoxie and Oskaloosa is elevated and that the highway
adjoining these two small towns is curvy.  CX 7; T. at 193-94. 
Furthermore, Respondent admitted, "[i]t is no secret that weather
systems move from west to east in this part of the country." 
Brief at 11; cf. T. at 222.  I take official notice that
Kansas City, Missouri, lies just to the east of Tonganoxie, and
the record shows there was up to twelve inches of snow around the
Kansas City area, with road closures because of stuck tractor-
trailer rigs.  CX 10, 11.  Thus, I find Chapman's reasoning
supported and credible.  The testimony of the sales
representative, David Ripley, who traveled in the area of
Oskaloosa on the afternoon of February 25 also shows that the
weather conditions were much worse that morning when Chapman was
trying to decide how to proceed.  Ripley testified that even
though the day turned out differently than it had started, the
roads were snow covered, the snow was deep, some roads were
plowed, some were not, and he got along "fairly well" driving a
two-wheel drive pickup truck.  T. at 184-85, 199.  Ripley did
not, however, travel the highway between Oskaloosa and
Tonganoxie.  Nor does Ripley testify that it would have 
been reasonable for Chapman to have done so the morning of
February 25.  See T. at 203.  Considering all this
evidence, I find, in accordance with the test set forth in the
statute itself, that a reasonable person under the circumstances
confronting Chapman at the time he decided not to make the
deliveries to Tonganoxie and Oskaloosa, would conclude that there
was a bona fide danger of an accident or injury, and that
therefore, Chapman had a reasonable apprehension of serious
injury to himself or the public under Section 405(b).
     I also find that Chapman met the communication requirement
of the because clause when he telephoned the terminal,
sought his supervisor's advice, and provided the explanation for
his safety concerns and work refusal.  Simpson, 842 F.2d
at 459.  Consequently, Complainant's refusal to make the run to
Tonganoxie 
[PAGE 4]
and Oskaloosa was protected.  Since he was discharged several
days later, an inference of retaliation is raised.  See
Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989) (temporal
proximity between adverse action and protected activity justifies
inference of retaliatory motive).
       I have thoroughly considered Respondent's evidence and
arguments that Chapman was fired because his actions violated
company policy, because he lacked commitment to the company, and
because he aroused complaints from the customers and the
salesman.  There is, however, direct evidence that Knapp fired
Complainant, at least in part, because of his protected refusal
to make deliveries to Tonganoxie and Oskaloosa on February 25. 
Knapp admits, "I was very upset with the fact that he didn't
finish his route like he had been instructed to, and I told him
that his services were no longer required by the Kansas
division."  T. at 243; see also T. at 242, 245. 
Where there is direct evidence that the adverse action is
motivated, at least in part by the protected activity, the burden
shifts to the respondent to demonstrate that it would have
discharged the complainant even if he had not engaged in the
protected activity.  Asst. Sec. and Kovas v. Morin Transport,
Inc., Case No. 92-STA-41, Sec. Dec., Oct. 1, 1993, slip op.
at 6.  In such cases, a respondent bears the risk that the
influence of legal and illegal motives cannot be separated. 
Green v. Creech Brothers Trucking, Case No. 92-STA-4, Sec.
Dec., Dec. 9, 1992, slip op. at 14-15, citing Mackowiak v.
Univ. Nuclear Sys., Inc., 735 F.2d 1159, 1164 (9th Cir.
1984).
     Respondent failed to meet its burden.  As the above-quoted
language by Knapp shows, Chapman's protected refusal was the
immediate cause of his discharge.  Chapman's attitude and his
relationships with the customers and the salesman certainly would
not have led to Complainant's termination absent the protected
activity.  Like the ALJ, I am persuaded by Chapman's "report
cards," particularly the final one, that these reasons were not
factors in his termination at all.  R.D. and O. at 6.  The final
"report card" reads, "[l]ack of common sense, combined with
failure to follow easy to understand procedures have resulted in
Dave's review rating [F] and also his termination from the Kansas
Division."  Respondent's Exhibit 1. 
     Respondent claims that Chapman violated its "policy" to sit
and wait out the storm and then finish his route.  The ALJ in
effect disbelieved Respondent actually had such a company policy,
R.D. and O. at 4-5, and I concur.  The examples of past practice
given by Knapp and Kenneth Mertens, a recently promoted driver
with Respondent, are unconvincing.  In their examples, the
drivers had no alternatives but to wait out the storms.  T. at
123-24, 236.  On the other hand, Complainant testified that he 
[PAGE 5]
knew of a prior instance when a driver set out in snowy weather
conditions but turned around and came back.  T. at 68. 
Respondent's testimony on this point is somewhat evasive, but is
more corroborative than contradictory.  T. at 222.  There is no
evidence that the driver was disciplined. 
     The parties can agree only that Respondent's basic policy
was that the decision whether to drive in snow and ice was within
the driver's discretion.  T. at 72, 103, 123, 136, 209.  Yet, it
was also undisputed that Respondent expected its drivers to drive
when other commercial vehicles were operating, "whether it be the
Schwann man or the Rainbow man or Yellow Freight or somebody like
that."  T. at 250-51, 221-22.  Chapman exercised his discretion
and drove the route he had reason to believe was safe as opposed
to the regular route which he reasonably believed posed a risk of
serious injury.  R.D. and O. at 5.  He did not forfeit STAA
protection in doing so. [3]   See Hornbuckle v. Yellow
Freight Sys., Inc., Case No. 92-STA-9, Sec. Dec., Dec. 23,
1992, slip op. at 12-14, appeal docketed, Yellow
Freight Sys. v. Reich, No. 93-1205 (4th Cir. Feb. 24, 1993).
     In any event, I can not ignore the "purport" of the hearing
testimony which proves that Respondent was obsessed, not with
Chapman's failure to follow any "company policy," but simply with
Chapman's failure to finish his route.  See R.D. and O. at
6.  Both Knapp and Pat Gaston, Respondent's general sales
manager, repeatedly questioned why Chapman could continue home
but could not finish his route by going to Tonganoxie and
Oskaloosa.  T. at 143, 239-42.  Their query ignores the
variations in road conditions that existed on the morning of
February 25, in addition to the potential for an hours-of-service
violation had Chapman waited in Topeka and then backtracked to
Tonganoxie and Oskaloosa.  See generally 49 C.F.R.
§§ 395.2(a)(5), 395.3(a)(1) (1993).  In sum, I find
that Complainant was discharged in violation of the STAA.
     Complainant has waived reinstatement.  Under the statute he
is entitled to an award of back wages with interest.  49 U.S.C.
app. § 2305(c)(2)(B).  I agree with the ALJ's calculation,
based on the parties' stipulation, except that back pay continues
to accrue until paid.  Dutile v. Tighe Trucking, Inc.,
Case No. 93-STA-31, Sec. Dec., Nov. 29, 1993, slip op. at 8-9;
Asst. Sec. and Gagnier v. Steinmann Transp., Inc., Case
No. 91-STA-46, Sec. Dec., Jul. 29, 1992, slip op. at 5-6. 
Although Respondent claims that it offered Chapman a warehouse
job at the time he was fired from the driving job, I agree with
the ALJ that there was no actual offer, and further, it is
apparent that the warehouse job would have been a demotion, not
comparable employment.  See T. at  147, 245, 249-50.  In
addition, Chapman is entitled to interest calculated in
accordance with 26 U.S.C. § 6621 (1988).  Dutile, 
[PAGE 6]
slip op. at 9; Gagnier, slip op. at 6-7.  Finally, I agree
with the ALJ's recommendation to order Respondent to modify
Chapman's final performance evaluation to grade C, with
compensation commensurate therewith, as a measure to achieve the
make-whole remedial purpose of the STAA.
                               Order
     Respondent is hereby ordered: (1) to expunge Chapman's
personnel records of all adverse references to his protected
activity and his discharge, (2) to modify Chapman's final "report
card" to grade C, with compensation commensurate therewith, and
(3) to compensate Chapman for back wages due as calculated by the
ALJ, with interest thereon calculated pursuant to 26 U.S.C. 
§ 6621.
     SO ORDERED. 


                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.   



[ENDNOTES]
           
[1] 
  At the outset I reject Respondent's argument that the ALJ
demonstrated bias at the hearing by cross-examining Respondent's
witnesses "to great lengths."  The ALJ's questioning, which
generally is authorized under 29 C.F.R. §§ 18.26,
18.29, 18.614 (1993) and 5 U.S.C. § 556 (1988), does not
show prejudgment, but rather reveals his intention to understand
the issues and to complete the record.  See Spearman v.
Roadway Express, Inc., 
Case No. 92-STA-1, Sec. Ord., Aug. 5, 1992, slip op. at 1.  I
note that the ALJ also cross-examined Chapman.  Transcript (T.)
at 88-92.  In any event, Respondent raised no objection at the
hearing to the ALJ's examination of its witnesses.

[2] 
  Since I find that Respondent violated the because clause
of Section 405(b), I need not determine whether Respondent
violated the when clause of that section.

[3] 
  The record shows that there were other rigs and straight
trucks, similar to the one Chapman was driving, out on the
turnpike on the morning of February 25, T. at 50, which supports
a finding that Complainant was acting in accordance with
Respondent's policy.  The record does not prove that Chapman
violated reason or the law by choosing to drive the turnpike
route home to the terminal.