DATE:     June 17, 1992
CASE NO. 90-STA-20



IN THE MATTER OF

THOMAS BRAME,

          COMPLAINANT,

     v.

CONSOLIDATED FREIGHTWAYS,

          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. app. § 2305 (1988), and the implementing regulations
at 29 C.F.R. Part 1978 (1991).  On February 28, 1992, following
an evidentiary hearing on July 4 and 5, 1991, the Administrative
Law Judge (ALJ) assigned to the case issued a Recommended
Decision and Order (R.D. and O.) dismissing the complaint. 
Pursuant to 29 C.F.R. § 1978.109(a), the ALJ's decision is
now before me for review.
     Complainant contends that Respondent unlawfully suspended
and discharged him when, on May 3, 1989, he refused to drive
either of two assigned trucks because their brakes needed
adjustment.  Respondent's Exhibit (RX) 3.  Complainant also
alleges that on November 8, 1988, December 21, 1988, and 
February 28, 1989, he received warning letters from Respondent in
retaliation for protected conduct, and he states that upon review
of these incidents, his improper discharge will become "even more
clear."  Id.
     After discussing the evidence in detail, the ALJ concluded 
[PAGE 2]
that Complainant failed to establish a prima facie case of
retaliation based on the May 3 incident.  R.D. and O. at 22-23. 
The ALJ explained that the preponderance of the evidence shows
that Complainant was incorrect and unreasonable in concluding
that the brakes were unsafe and thus, he did not engage in
protected conduct in refusing to drive that day.  The ALJ also
considered and rejected the allegations of prior discrimination
and found no pattern of unsafe practice by Respondent. 
     I agree with the ALJ's ultimate conclusions and find
Complainant's arguments to the contrary either irrelevant or
unpersuasive. [1]   The ALJ's factual findings are thorough and
well documented, and except as expressly modified or clarified
below, I accept his decision.  See 29 C.F.R. §
1978.109(c)(3).
     Under the STAA, covered employees lawfully may refuse to
drive whenever operation of the vehicle would violate Federal
rules or regulations applicable to commercial vehicle safety
or whenever they have a reasonable apprehension of danger
to themselves or to the public because of unsafe driving
conditions.  49 U.S.C. § 2305(b); Roadway Express, Inc.
v. Dole, 929 F.2d 1060, 1064 (5th Cir. 1991).  Relying on 49
C.F.R. § 392.7 (1991), Complainant contends that his refusal
to drive on May 3 was protected under both clauses of Section
2305(b) because he was not satisfied with the working condition
of the brakes. [2]   Complainant's subjective opinion, however,
is unsubstantiated, and even if it represents his good faith
belief, is insufficient to establish a violation under Section
2305(b).  See Robinson v. Duff Truck Line, Inc.,
Case No. 86-STA-3, Sec. Final Dec. and Order, Mar. 6, 1987, slip
op. at 12, aff'd, Duff Truck Line, Inc. v.
Brock, No. 87-3324 (6th Cir. 1988) (LEXIS, Genfed Library,
Court of Appeals file).  Rather, to invoke protection under the
first clause of Section 2305(b), a complainant must prove that
his assessment of the condition is correct.  Robinson,
slip op. at 12 n.7.  The evidence here affirmatively shows to the
contrary, that the brakes complied with the federal regulation
governing brake performance at 49 C.F.R. § 393.52 and that
their working condition was satisfactory to a Department of
Transportation official, among others.  On May 3, the brakes were
tested and found safe by a mechanic and a number of other
experienced drivers, and although Complainant was informed of
these results, he still refused to drive.  R.D. and O. at 6, 11-
12, 22-23.  Under these circumstances, I agree with the ALJ that
the second clause of Section 2305(b) is also inapplicable because
Complainant's apprehension was unreasonable.  See Clay
v. Castle Coal and Oil Co., Inc., Case No. 90-STA-37, Sec.
Dec. and Order of Remand, Nov. 12, 1991, slip op. at 7-8;
Wiggins v. Roadway Express, Inc., Case No. 84-STA-7, Sec.
Dec. and Final Order, 
Aug. 9, 1985, slip op. at 2; cf. Sartain v. Bechtel
Constructors 
[PAGE 3]
Corp., Case No. 87-ERA-37, Sec. Final Dec. and Order, Feb.
22, 1991, slip op. at 8.  Consequently, Complainant has failed to
establish that he engaged in protected conduct on May 3 and,
therefore, his claim of retaliatory suspension and discharge is
denied. [3] 
     From the outset of the hearing, Respondent has contended
that Complainant's allegations of discriminatory discipline
occurring on November 8, 1988, December 21, 1988, and 
February 28, 1989, are irrelevant and not at issue in this
proceeding.  Respondent argues that these allegations are
relevant only to the concept of "progressive discipline" under
the union contract, [4]  and moreover, are not proper issues here
because they were not addressed in the preliminary investigative
findings.  Somewhat reluctantly, the ALJ decided to address
Complainant's allegations regarding these prior incidents "since
[Complainant] was terminated as a result of progressive
discipline."  R.D. and O. at 20. 
     First, while this is not a forum to resolve issues of
"progressive discipline" as that concept arises under the
National Freight Agreement, under the STAA, a complainant may
challenge any allegedly retaliatory adverse employment action or
actions taken by the employer with respect to the employee's
compensation, terms, conditions or privileges of employment.  49
U.S.C. app. § 2305(a), (b); Self, slip op. at 16. [5] 
 The critical inquiry here, in determining whether Complainant's
allegations of prior discrimination are properly before me for
decision, is whether Respondent had adequate notice that these
allegations were at issue in the proceeding and whether it had
sufficient opportunity to be heard on the allegations. 
See Yellow Freight System, Inc. v. Martin, 954 F.2d
353, 357 (6th Cir. 1992). [6] 
     It is not necessarily dispositive, as Respondent argues,
that Complainant's allegations concerning these previous
incidents were not addressed in the preliminary findings.  The
Assistant Secretary's preliminary resolution is not binding or
determinative of the precise issues to be heard before the ALJ. 
Stack v. Preston Trucking Co., Case No. 89-STA-15, Sec.
Final Dec. and Order, Jan. 7, 1991, slip op. at 2 n.3. 
Nevertheless, as discussed below, the fact that the preliminary
findings fail to mention the allegations is relevant to the
overall inquiry.
     Although counsel for Respondent acknowleged that
Complainant's letter of complaint contains allegations other than
the suspension and discharge, Transcript (T.) at 12-13, the
letter is somewhat ambiguous, and it is not at all clear from
this record considered as a whole that Respondent had
adequate notice of all the issues and theories to be heard
before the ALJ. [7]  Yellow Freight System, Inc., 954 F.2d
at 358-59.  Neither the 
[PAGE 4]
preliminary findings nor Complainant's letter of appeal mention
the additional allegations or incidents.  Although prior to the
hearing, the ALJ requested that the parties exchange a statement
of the issues to be heard, and Respondent served interrogatories
requesting that Complainant set forth his expected proof,
Complainant never responded to either request.  T. at 537-38.  At
the hearing, Respondent immediately objected to Complainant's
attempt to expand the scope of the hearing beyond the suspension
and discharge.  T. at 16.  Additionally, in deciding to address
the allegations, the ALJ first noted, "it is unclear to me
whether [Complainant] intended to fully litigate" his allegations
of prior discrimination.  I agree.  See T. at 14-16.  Even
though Complainant was allowed considerable latitude, he
developed little, if any, evidence relevant to whether these
allegations constitute discrimination under the STAA.
     In any event, I do not significantly disagree with the ALJ's
resolution of the merits of these allegations.  I accept his
conclusions, R.D. and O. at 20-21, subject to the following
additions.  There is no evidence or explanation sufficient to
render the allegation concerning the November 8, 1988, incident
timely.  See generally Kelly v. Flav-O-Rich,
Inc., Case No. 90-STA-14, Sec. Final Dec. and Order, May 22,
1991; Garn v. Benchmark Technologies, Case No. 88-ERA-21,
Sec. Dec. and Order of Remand, Sept. 25, 1990, slip op. at 5-6. 
Complainant has neither alleged nor proven that any breach of an
agreement regarding the December 21, 1988, incident was motivated
by retaliatory animus under the STAA.  Finally, Complainant has
not proven a protected refusal to drive on the basis of his
truck's brakes in February 1989, while Respondent has proven that
it would have issued the February 28, 1989, warning letter solely
on this basis -- even if it had not taken the "oil in the hubs"
incident into account.  T. at 475.  Consequently, even applying a
dual motive analysis, Complainant cannot prevail.  Price
Waterhouse v. Hopkins, 490 U.S. 228, 252, 258 (1989)
(plurality opinion).               
     Accordingly, the complaint IS DENIED.

                              LYNN MARTIN
                              Secretary of Labor

Washington, D.C.



[ENDNOTES]
           
[1]   Neither Complainant nor Respondent has filed a response to
the ALJ's decision, as permitted by the regulations.  See
29 C.F.R. § 1978.109(c)(2).  Both, however, filed post-
hearing briefs before the ALJ and I have considered the numerous
arguments they raised.  I also note that in reviewing this case
and the pleadings involved, I have fairly considered the fact
that for the most part, Complainant has been represented not by
an attorney, but by a lay representative.

[2]  Section 392.7 of the regulations provides:

     No motor vehicle shall be driven unless the driver
     thereof shall have satisfied himself that the following
     parts and accessories are in good working order, . . . 

and the regulation lists "[s]ervice brakes, including trailer
brake connections" as such parts.

[3]  Respondent maintained that this precise issue had been
decided by a grievance committee following arbitration and urged
the ALJ to accord determinative or great weight to the
committee's decision.  The ALJ declined to do so, citing Self
v. Carolina Freight Carriers Corp., Case No. 89-STA-9, Sec.
Final Dec. and Order, Jan. 12, 1990, slip op. at 18.  Although
the ALJ was not required to defer to the outcome of the
arbitration proceeding, 29 C.F.R. § 1978.112(c), he erred in
rejecting the arbitration decision without examining the evidence
of the proceedings, RX 8-9.  Roadway Express, Inc. v.
Brock, 830 F.2d 179, 181 (11th Cir. 1987); cf.
Mecus v. Consolidated Freightways, Case No. 91-STA-37,
Sec. Final Dec. and Order, Jan. 23, 1992, slip op. at 3. 
Nevertheless, Respondent has not been prejudiced by the error
since it prevailed on the merits of the case it presented before
the ALJ.  Moreover, the evidence of the arbitration proceeding
has been examined independently, and I conclude that the decision
there was not entitled to weight as it did not give full
consideration to the parties' rights under the STAA.  Roadway
Express, Inc., 830 F.2d at 181-82.  See also
Martin v. Yellow Freight System, Inc., 91 Civ. 8370, slip
op. at 13 (S.D.N.Y. 
May 19, 1992).

[4]  According to William Jenkins, Respondent's manager of labor
relations, Complainant could not have been discharged under the
National Freight Agreement unless he had been "warned" once prior
to the discharge.  R.D. and O. at 14.

[5]  The terms of collective bargaining agreements do not
diminish any rights afforded employees under the STAA. 
Robinson, slip op. at 23 n.12.

[6]  Consequently, I disagree with the ALJ's rationale for
addressing these allegations.  Furthermore, the fact that
progressive discipline is a prerequisite under the union contract
does not necessarily establish that the particular instance (or
instances) of progressive discipline was a factor in the
termination decision.

[7]  Although the formal complaint form completed by the
Occupational Safety and Health official lists the prior incidents
in the allegation summary, the record does not show that
Respondent received a copy of the form.