Before me for review is the Recommended Decision and order issued,
on July 22, 1988, by Administrative Law Judge (ALJ) James W. Kerr, Jr., in the above-captioned
case, which arises under the employee protection provision of the Surface Transportation
Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1982).
Complainant Gohman, a driver for Respondent for little over 30 days,
alleges that he was discharged from his employment for refusing to drive in violation of Federal
safety regulations. Respondent contends that Complainant was discharged because he did not
manage his driving time properly, would not drive the most expeditious route and was unwilling
to be guided by Respondent. The ALJ found that Complainant failed to establish a violation of
section 2305(a) or section 2305(b) of the STAA.
Based on a thorough review of the record, I conclude that the ALJ's
factual findings are supported by substantial evidence in the record as a whole and are,
consequently, conclusive. 29-U.S.C. § 1978.109(c)(3) (1987). I further agree with the
ALJ's conclusion that Complainant has failed to establish a violation of either paragraph (a) or
(b) of section 2305.
I do not, however, agree with the ALJ's statement that "[e]ven if
Complainant had presented adequate evidence of refusal to drive in violation of 49 C.F.R. Part
395, [a Federal motor carrier safety regulation] Complainant 'must have sought from his
employer, and have been unable to obtain correction of the unsafe condition' in order to quality
[Page 2]
for protection under §2305 (b). of R. D. and O. at 5. The statutory requirement that the
employee must have sought correction of the unsafe condition applies only where the refusal to
drive is because of the unsafe condition of the equipment, not where the refusal to drive is
because operation of the vehicle would be in violation of a Federal safety rule.
Accordingly, with the exception of the first sentence of the last
paragraph, I adopt, and append hereto, the ALJ's R. D. and O. The complaint of Complainant
Gohman is, therefore, DISMISSED.
