DATE: February 21, 1996
CASE NO:  94-STA-11
            

IN THE MATTER OF

LORAINE WHITE 

          COMPLAINANT,

     v.

MAVERICK TRANSPORTATION INC.,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                    FINAL DECISION AND ORDER 

     This case arises under the employee protection provision of
the Surface Transportation Assistance Act of 1982 (STAA), 49
U.S.C.A. § 31105 (West 1994).  The findings of fact in the
January 18, 1995 Administrative Law Judge's (ALJ) Recommended
Decision and Order (R. D. and O.), at 4-20, are supported by
substantial evidence in the record as a whole and therefore are
conclusive.  29 C.F.R.  § 1978.109(c)(3)(1994).  I accept
the recommended decision of the ALJ, modified as set out below,
and dismiss this complaint.  
                                BACKGROUND
     Complainant, Loraine White (White), was employed by
Respondent, Maverick Transportation, Inc. (Maverick), as a
commercial motor vehicle driver from April 23, 1992 until her
discharge on October 29, 1992.  White claims that she made
internal complaints regarding Maverick's demands for long
hours[1] , overloaded deliveries[2]  and illegal log practices. 
She claims, as well, that she was discharged for complaining when
Maverick caused her truck to be overloaded and resisting
Maverick's instructions to drive around weight scales with her
overloaded truck.  R. D. and O. at 16.   Maverick denied these 
[PAGE 2]
allegations and stated that White did not engage in any protected
conduct and was discharged because she had a propensity to run
overweight loads in violation of company policy and because she
had a bad attitude.  
     After an evidentiary hearing on the merits, the ALJ
concluded that White failed to establish that she engaged in
protected activity and recommended that the complaint be
dismissed.
                         DISCUSSION 
     The relevant portion of section 405 of the STAA states:
          [a] person may not discharge an employee or
          discipline or  discriminate against an
          employee regarding pay, terms, or  privileges
          of employment, because-

               (A) the employee, or another person at
          the employee's request has filed a complaint
          or begun a proceeding related to a violation
          of a commercial motor vehicle safety
          regulation, standard, or order, or had
          testified or will testify in such a
          proceeding; 

49 U.S.C.A. § 31105(a)(1)(A).  The ALJ weighed all the
evidence and concluded that White did not present a prima
facie case of a violation of the employee protection
provisions of the STAA.  R. D. and O. at 21.  However, since
"this case was fully tried on the merits," it is not necessary to
engage in an analysis of the elements of a prima facie
case.  USPS Board of Governors v. Aikens, 460 U.S.
711, 713 (1983); Carroll v. Bechtel Power Corp., Case No.
91-ERA-0046, Sec. Dec., Feb. 15, 1995, slip op. at 
11 n. 9, petition for review docketed, No. 95-1729 (8th
Cir. Mar. 27, 1995) (under the Energy Reorganization Act).  Once
Maverick produced evidence that White was subjected to an adverse
action for a legitimate, nondiscriminatory reason, the answer to
the question whether a prima facie case was presented is
no longer useful.  If White has not prevailed by a preponderance
of the evidence on the ultimate question of liability it matters
not at all whether she presented a prima facie case.
       White alleges that she made "two or three" complaints
regarding Maverick's violations of the hours of service rules and
the company's suggested use of more than one log book.  T. 28.  
White testified that the only person she complained to was her
supervisor, Hugh Brown (Brown).  R. D. and O. at 5.  She also
stated that whenever she complained to Brown, he would simply
"walk away."  T. 28, 29, 31, 35.  During her testimony before the
ALJ she recounted her complaints to Brown as follows:
[PAGE 3]
     Q    Ms. White, would you tell the Judge whether or not
          you ever complained to Maverick, its dispatchers
          or anyone else regarding being required to run
          beyond the ten-hour rule or beyond the fifteen-
          hour rule ?

     A    Yes I did complain.

     Q    Who did you complain to ?

     A    Hugh Brown, two or three times . . . .

     Q    And how did you come to talk to Hugh about this
          subject ?

     A    I just told him that I didn't like when I was
          handed two or three log books, I did not know how
          to run these . . . When I was handed two or three
          log books, different types, and I would say like,
          'I don't know how to run the second log book and I
          don't like to get into this.'  And generally, I
          was just ignored.
T. 28-29.  
     This last statement is as close as White came to expressing
an internal safety complaint about a violation of the hours of
service rules or duplicate log books.  As noted, she made no
reference to the hours of service rules.  Further, she admitted
that she was never specifically instructed by anyone at Maverick
to falsify her log books.  T. 67.  She also testified that there
was nothing illegal about having more than one log book.  T. 153-
54.  White said that everyone at Maverick knew that loads were
being run without logs, but she could not name another individual
who had done so.  R. D. and O. at 6.  I agree with the ALJ's
conclusion that these vague expressions do not constitute a
report or complaint of safety violations as required by the STAA.
     Internal complaints to management are protected under the
STAA.  Reed v. National Minerals Corp., Case No. 91-STA-
34, Sec. Dec. and Order, slip op. at 4, July 24, 1992.  There are
many ways an employee can communicate such internal complaints to
an employer.  See, e.g., Caimano v. Brink's, Incorporated,
Case No. 95-STA-4, Sec. Dec. and Order, January 26, 1996
(complainant raised safety concerns at a "speak-out" meeting held
by the Respondent for its employees); Green v. Creech Brothers
Trucking, Case No. 92-STA-4, Sec. Dec. and Order, December 9,
1992 (complainant's vehicle inspection reports served as a
continuing "complaint" to respondent).  
[PAGE 4]
     However, some statements made by employees are too vague or
tenuous to be perceived as complaints or do not represent the
type of communication that qualifies as a complaint under the
STAA.  See, e.g., Mace v. ONA Delivery Systems, Inc., Case
No. 91-STA-10, Sec. Dec. and Order, January 27, 1992
(complainant's complaint centered on his extra job assignments,
rather than on perceived safety violations).   White did not
engage in any communication with Maverick that would qualify as
an internal safety complaint under the STAA. 
     Additionally, White cannot prevail because she has not
proven that her complaints were the reason for her termination. 
Her personnel file contains several warnings from the Log
Department that she was repeatedly in violation of the ten-hour
and fifteen-hour rules and that she was subsequently counseled on
Maverick's policies by a representative from the Log Department. 
R. D. and O. at 18, Respondent's Exhibit 1, Personnel File of
Loraine White (RX-1) at 58-70.   White was placed on probation on
October 12, 1992 because, according to Maverick, she had a "bad
attitude."  T. 72.  The probation notice indicated that White's
"performance and attitude towards customers and other Maverick
employees is expected to show noticeable improvement."  RX-1 
at 96.  
     White was solely responsible for the arrangement of cargo on
her truck.  Nevertheless, White overloaded the spread axle on her
trailer on October 22, only ten days into her probation period. 
R. D. and O. at 10.  As a result of the improper arrangement of
cargo White was given an overweight citation despite the fact
that the load she was hauling did not exceed the overall weight
limit.  This mistake during her probationary period ultimately
caused her dismissal.  
     White failed to prove that Maverick discharged her for
engaging in allegedly protected activity.  I therefore accept the
ALJ's recommended decision and it is hereby ORDERED that the
complaint be DISMISSED.
     SO ORDERED.

                              ROBERT B. REICH
                              Secretary of Labor
Washington, D.C.


[ENDNOTES]
           
[1]   Pursuant to federal law, a driver is prohibited from
driving more than ten hours following eight consecutive hours off
duty.  Drivers of large vehicles who have been on duty for
fifteen hours may not drive without taking eight consecutive
hours off duty.  A driver may not drive for any period after the
driver has been on duty for more than 70 hours in any period of
eight consecutive days.  See 49 C.F.R. § 395.3(a) and
(b), R. D. and O. at 5.

[2]   Maverick's policy with regard to hauling overweight loads
is set forth in the Company Policy Manual as follows:

     "The driver will be held responsible for overload/
     overweight tickets . . . Weigh all loads.  Do not assume
     weight is correct and load placement on trailers is correct. 
     Maverick will not pay overweight tickets . . . Never accept
     estimates of any customer as to the weight of his load.  If
     they do not have a scale, find one; weigh your load. 
     Customers do not pay estimates!  Customers will not pay your
     overweight fine if their estimate is wrong."  Respondent's
     Exhibit 2 (Maverick Company Policies Manual)(RX-2) at 22.