DATE:  October 6, 1994
CASE NO. 94-STA-3


IN THE MATTER OF

WILLIAM WATSON,

          COMPLAINANT,

     v.

SMALLWOOD TRUCKING COMPANY, INC.,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     Before me for review is the Recommended Decision and Order
(R.D. and O.) of the Administrative Law Judge (ALJ) in this case
arising under the employee protection provisions of the Surface
Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. 
§ 2305 (1988).  The ALJ recommended dismissal of the
complaint finding that Complainant failed to establish a prima
facie case of retaliatory discharge in violation of the STAA.  In
the alternative, the ALJ found that even if Complainant had
established a prima facie case, Respondent successfully rebutted
by showing that Complainant was not fired for engaging in
protected activity, but rather, quit when he was questioned about
leaving his truck unattended and idling in a truck stop parking
lot for numerous hours.            
     In reaching this decision I have considered the entire
record before the ALJ.  As discussed herein, I adopt the ALJ's
appended R.D. and O. with the following clarifications of the
elements of a prima facie case and the burdens of proof and
production in a STAA case.
[PAGE 2]
     The ALJ's findings of fact, including his credibility
determinations, R.D. and O. at 4-10, are supported by substantial
evidence on the record taken as a whole, and therefore are
conclusive, and I adopt them. See 29 C.F.R. §
1978.109(c)(3) (1993).  As the ALJ found, Complainant has
presented no credible evidence that Respondent discharged him for
engaging in protected activity.  
     In order to establish a prima facie case of retaliatory
discharge in violation of the STAA, Complainant Watson had to
show that he engaged in protected activity, that he was subjected
to adverse action, and that Respondent Smallwood was aware of
that protected activity when he took the adverse action against
Complainant.  Under Section 405(b) of the STAA, refusing to drive
is a protected activity under either of two circumstances.  An
employee may not be discharged 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. . . " 49 U.S.C. app. 
§ 2305(b). [1]   Discharge is also 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." 
Id.  This 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.  Id.
     In the instant case, Complainant has failed to show that he
was engaged in protected activity, or that Respondent was aware
of his alleged protected activity (taking a four hour rest break)
at the time of the alleged adverse action.  Complainant's own
testimony indicates that Respondent discharged him for leaving
his truck unattended and idling for several hours at a truck
stop.  T. at 22.  There is no evidence to support Complainant's
further allegation that he was asleep in the cab of the truck,
and that Respondent discharged him for taking a regulation rest
break.  Complainant's logs do not support this contention, nor
his testimony, particularly in light of the ALJ's findings that
Complainant was not a credible witness.  Because of Complainant's
contradictory testimony and his lack of any corroborating
evidence, I find that he cannot show on this record, that he was
engaged in protected activity or that Respondent was aware of his
protected activity at the time of the adverse action.  See
generally Ass't Secretary and Waldrep v. Performance
Transport, Inc., Case No. 93-STA-23, Dec. and Ord., April 6,
1994, slip op. at 7-10, and the cases cited therein.  I further
accept the ALJ's conclusion that Complainant has not shown that
Respondent took 
[PAGE 3]
adverse action against him, in that the testimony which the ALJ
found more credible establishes that the Complainant quit his job
on the date in question.  
     Alternatively, assuming that the Complainant's testimony
could be considered in the light most favorable to Complainant, 
and that a prima facie case had been shown, I still find that the
complaint must fail.  Respondent has proffered evidence to show
that he did not discharge Complainant; and moreover has proffered
ample evidence of legitimate, nondiscriminatory reasons for
discharging Complainant, which Complainant has not shown to be
pretextual.  Complainant has not met his ultimate burden of
establishing that he was discharged for protected activity. 
St. Mary's Honor Center v. Hicks, 125 L. Ed. 2d 407, 416
(1993); Roadway Express, Inc. v. Brock, 830 F.2d 179, 181
n.6 (11th Cir. 1987).
     Accordingly, I adopt and append the ALJ's R.D. and O. as
supplemented herein, and the complaint is dismissed.
     SO ORDERED.

                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.



[ENDNOTES]
           
[1]  I agree with the ALJ that Section 405(a) does not apply here
since Watson did not make complaints about, or file any action
concerning, violations of motor carrier rules or regulations.