DATE: July 17, 1991
CASE NO. 89-STA-10

IN THE MATTER OF

ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH,
   PROSECUTING PARTY,

AND GARY OSBORN AND MEREL ROWE,
   COMPLAINANTS,

v.

CAVALIER HOMES OF ALABAMA, INC.,
AND MORGAN DRIVE AWAY, INC.,
   RESPONDENTS.

BEFORE:   THE SECRETARY OF LABOR

   Before me for review are the July 20, 1990, [Recommended] Decision and Order and the March 22, 1991, Recommended Decision and Order on Remand (R.D.R.) of the Administrative Law Judge (ALJ) in this case under Section 405 of the Surface Transportatio Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1988). Upon consideration, I accept the ALJ's recommendation that the complaints should be dismissed.

   A. The Coverage Issue

   Respondents challenge the authority of this proceeding, contending that neither "employed" the Complainants. STAA Section 405 prohibits a "person" from discriminating against an "employee" for engaging in certain statutorily protected activity. As "corporations," both Respondents are within the STAA definition of "person." 49 U.S.C. app. § 2301(4). Complainant Osborn, as "a driver of a commercial motor vehicle," comes within STAA's definition of "employee," which also expressly includes "an independent contractor while in the course of personally operating a commercial motor vehicle." 49 U.S.C. app. § 2301(1) and (2). Complainant Rowe, the owner of the truck tractor, Hearing

Transcript (T.) 35, constituted an "employee." As the driver of an escort vehicle, Rowe was an "individual other than an employer; who is employed by a commercial motor carrier and who in the course of [her] employment directly affects commercial motor vehicle safety . . . ." 49 U.S.C. app. § 2301(2)(D).

   Both Cavalier and Morgan Drive Away, Inc. (Morgan), come within the STAA definition of "employer": "any person engaged in a business affecting commerce who owns or leases a commercial motor vehicle in connection with that business, or assigns employees to operate it in commerce . . . ." 49 U.S.C. app. § 2301(3) (emphasis added). Morgan leased truck tractors and driver transport services for assignment within a pool of manufacturers. Dispatcher Barnett, who was employed by Cavalier but acted as Morgan's agent, assigned drivers to deliver mobile homes manufactured at Cavalier's Addison plant, T. 401-402, 690691, 761, 893-895; took employment applications from and interviewed drivers for consideration by Morgan; "recommended" whether Morgan should suspend or bar any drivers from servicing Cavalier: and signed checks issued by Morgan to compensate the drivers. T. 48-49, 625, 654, 692-693. Prior to February 1988, the drivers were employed directly by Cavalier. After contracting with Morgan, Cavalier continued to control which drivers were assigned to transport its mobile homes. T. 930-931 (Cavalier Secretary/Treasurer Roberson). Thus, Cavalier's arrangement with Morgan merely represented a redesigned employment relationship. See Palmer v. Western Truck Manpower, Case No. 85-STA-6, Sec. Remand Dec., Jan. 16, 1987, slip op. at 2-5, appeal docketed, No. 90-70430 (9th Cir. Aug. 24, 1990).

   The particular facts and circumstances giving rise to this proceeding therefore are covered under 49 U.S.C. app. § 2305(b).

   B. The Merits

   In order to establish a prima facie case, a complainant must show that he engaged in protected activity, that he was subject to adverse employment action, and that the employer was aware of his protected activity when it took the adverse action, raising the inference that the protected activity was the likely reason for the adverse action. Ordinarily, the reason for a work refusal should be communicated to an employer, or at least an attempt at such communication should be made.¹ Perez v. Guthmiller Trucking Co.. Inc., Case No. 87-STA-13, Sec. Dec., Dec. 7, 1988, slip op. at 25, n.14.

   Here, the ALJ found that Complainant Osborn failed to communicate a reason for his work refusal which would invoke STAA protection. In so finding, he credited the testimony of James Caldwell, Cavalier's president and general manager, that Osborn did not cite fatigue as his motivation for declining the Arkansas assignment. See 49 C.F.R. § 392.3 (1990). Only Caldwell and Osborn were present during the discussion in Caldwell's office, after which Caldwell barred Osborn from hauling for Cavalier because Osborn had refused the assignment. The ALJ credited Caldwell's account while discrediting that of Osborn. Osborn's omission of information about felony convictions from employment applications and his admitted falsification of his driving log provide sufficient basis for this credibility finding, and upon

consideration I adopt it. There being no unusual circumstances that would excuse the communication requirement, Complainants are not afforded STAA protection. Cf. Simpson v. Federal Mine Safety& Health Rev. Com'n, 842 F.2d at 459. In arriving at this result, I do not reach the issues regarding Osborn's criminal convictions, R.D.R. at 6, because it is unnecessary to do so.²

   Accordingly, the Complainants' complaints are dismissed.

SO ORDERED.

         Lynn Martin
         Secretary of Labor

Washington, D.C.

¹In order to gain protection under the "because" clause of STAA Section 405(b), an employee "must have sought from his employer, and have been unable to obtain, correction of the unsafe condition", a requirement subsuming attempted communication. Although protection under the "when" clause does not similarly depend on this requisite, O.Duff Truck Line. Inc. v. Brock,O. No. 87-3324 (6th Cir. 1988) (LEXIS, Genfed library, Court of Appeals file), O.affix Robinson v. Duff Truck Line. Inc.O., Case No. 86-STA-3, Sec. Dec., Mar. 6, 1987, a qualified communication requirement "is certainly 'rational and consistent with the statute.'" O.Simpson v. Federal Mine Safety &Health Rev. Com'nO., 842 F.2d 453, 459 (D.C. Cir. 1988) (quoting O.NLRB v. United Food & Commercial Workers Union, Local 23O., 484 U.S. 112, 123 (1987)).

²I need not decide these issues because the credibility finding regarding Osborn can be grounded on other considerations A review of pertinent case law suggests, however, that the ALJ's disposition is erroneous. See United States v. Glenn, 667 F.2d 1269, 1272-1273 (9th Cir. 1982); United States v. Seamster, 568 F.2d 188, 190-191 (lOth Cir. 1978); United States v. Smith, 551 F.2d 348, 356-365 (D.C. Cir. 1976).