DATE:  May 20, 1992
CASE NO. 92-STA-5



IN THE MATTER OF 

LEROY GAY,

          COMPLAINANT,

     v.

BURLINGTON MOTOR CARRIERS,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     Before me for review is the Recommended Decision and Order
(R.D. and O.) issued February 4, 1992, by the Administrative Law
Judge (ALJ) in the captioned case, which arises under the
employee protection provision of the Surface Transportation
Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1988). 
The ALJ has recommended that the complaint be dismissed because
Complainant did not engage in activity protected under the STAA
and, alternatively, because the manager who discharged
Complainant did not know that he had filed safety complaints.  As
discussed below, I agree that the complaint should be dismissed.
     Under the burdens of proof in STAA proceedings, Complainant
must show that he engaged in protected activity, that he was
subjected to adverse action, and that Respondent was aware of the
protected activity when it took adverse action.  Complainant also
must present evidence sufficient to raise the inference that the
protected activity was the likely reason for the adverse action. 
An employee is protected under STAA Section 405(a) if he "has
filed any complaint or instituted or caused to be instituted any 
[PAGE 2]
proceeding relating to a violation of a commercial motor vehicle
safety rule, regulation, standard, or order . . . ."  49 U.S.C.
app. § 2305(a).  See Davis v. H.R. Hill, Inc.,
Case No. 86-STA-18, Sec. Dec., Mar. 18, 1987, slip op. at 3-4
(both internal and external safety complaints protected). 
Cf. Bivens v. Louisiana Power and Light, Case No.
89-ERA-30, Sec. Remand Dec., June 4, 1991, slip op. at 4-5 (citing cases) 
(internal safety complaints to employer protected under environmental 
whistleblower laws).
     The STAA implementing regulations provide that an ALJ's
factual findings shall be considered conclusive "if supported by
substantial evidence on the record considered as a whole . . . ." 
29 C.F.R. § 1978.109(c)(3) (1991).  I do not find that there
is substantial evidence to support the ALJ's initial factual
finding that Complainant's safety complaints were not protected
under STAA Section 405(a). [1]   Complainant, a tractor mechanic
and supervisory "lead" mechanic, constituted "a mechanic . . .
who [was] employed by a commercial motor carrier and who in the
course of his employment directly affect[ed] commercial motor
vehicle safety . . . ."  49 U.S.C. app. § 2301(2)(B) (STAA
definition of "employee").  Cf. Rehling v. Sandel Glass
Co., Case No. 91-STA-33, Sec. Remand Dec., Jan. 6, 1992, slip
op. at 5-8 (intrastate truck driver's manner of vehicle operation
and condition of equipment directly affected commercial motor
vehicle safety on major thoroughfares where he traveled). 
Complainant complained internally about exposures in the
inadequately ventilated maintenance shop to truck exhaust,
excessive noise, and paint fumes.  Complainant also complained to
the Occupational Safety and Health Administration (OSHA) after
experiencing extreme dizziness upon inhaling paint fumes. [2]  
Hearing Transcript (T.) 14-16.     The STAA extends protection to
"employee[s]" who file "any complaint . . . relating to a
violation of a commercial motor vehicle safety rule, regulation,
standard, or order . . . ."  Working conditions adversely
affecting the health of tractor mechanics could interfere with
their inspection, repair, and maintenance of commercial motor
vehicles, resulting in violation of Department of Transportation
(DOT) regulations.  See, e.g., 49 C.F.R. § 393 (1991)
(equipment required for safe vehicle operation); 49 C.F.R. §
396 (vehicle inspection, repair, and maintenance requirements). 
To the extent that drivers are exposed to conditions in the
maintenance department, violation of 49 C.F.R. § 392.3 also
could be involved.  In these circumstances, Complainant filed
complaints "relating to" commercial motor vehicle violations. 
See Yellow Freight System, Inc. v. Martin, 954 F.2d
353, 357 (6th Cir. 1992) (STAA Section 405(a) protection not
dependent upon whether complainant actually was successful in
proving a violation of federal safety provision; primary
consideration is whether 
[PAGE 3]
proceeding was based upon "possible" safety violations).
     The ALJ also found that Complainant failed to show
causation, i.e., that his safety complaints motivated
Respondent to discharge him.  R.D. and O. at 4, 5.  Substantial
record evidence supports this finding, and I adopt it.  29 C.F.R.
§ 1978.109(c)(3).  Respondent employed between 500 and 600
drivers and approximately 50 shop employees at its Albany,
Georgia, facility.  T. 62-63.  Complainant never complained
directly to Maintenance Director Yordy about health conditions in
the shop.  Complaints about the paint fumes were raised in a shop
meeting by the mechanics as a group.  T. 63, 82-83, 86 (Director
Yordy); T. 90-91 (Shop Foreman Webb).  Although part of the
mechanics group, Complainant was not instrumental in raising the
complaint.  T. 86.  At the time that he discharged Complainant,
Director Yordy did not know that Complainant had complained
internally or that he had filed a complaint with OSHA.  T. 61-62,
65, 82-86.  Complainant's discharge took effect on May 22, 1991,
the discharge decision having been made a week earlier.  Yordy
received OSHA's May 23 notification that a complaint had been
filed on May 24.  Upon receiving the notification, Yordy did not
suspect that Complainant was responsible.  T. 65, 82-86.
     Because Yordy was not aware of Complainant's protected
activity, it could not have supplied a motive for his discharge. 
Complainant having failed to make a prima facie case showing of
unlawful discrimination, his complaint IS DISMISSED.
     SO ORDERED.

                              LYNN MARTIN
                              Secretary of Labor

Washington, D.C.


[ENDNOTES]
           
[1]   Statutory provisions which protect employees for
participating in agency proceedings are accorded "exceptionally"
broad application.  NLRB v. Retail Store Emp. U., Local
876, 570 F.2d 586, 590-591 (6th Cir.), cert. denied,
439 U.S. 819 (1978); Pettway v. American Cast Iron Pipe
Co., 411 F.2d 998, 1004-1008 (5th Cir. 1969); EEOC v.
Kallir, Phillips, Ross, Inc., 401 F. Supp. 66, 70-71
(S.D.N.Y. 1975).  See also Marshall v. Whirlpool
Corporation, 593 F.2d 715, 724-725 (6th Cir. 1979),
aff'd, 445 U.S. 1 (1980).  The impetus is to protect all
forms of access to respective agencies at all stages of
administrative process and thus to prevent agencies' channels of
information from "being dried up by employer intimidation . . .
."  NLRB v. Scrivener, 405 U.S. 117, 121-124 (1972);
DeFord v. Secretary of Labor, 700 F.2d 281, 286 (6th Cir.
1983).  See NLRB v. Robbins Tire & Rubber Co., 437
U.S. 214, 239-240 (1978); Croushorn v. Board of Trustees of
Univ. of Tenn., 518 F. Supp. 9, 21-24 (M.D. Tenn. 1980). 
See also Grand Rapids Die Casting Corp. v. NLRB,
831 F.2d 112, 116 and n.2, rehearing and rehearing en banc
denied per curiam, 833 F.2d 605 (6th Cir. 1987).  Information
and testimony obtained in related proceedings in turn may
precipitate or otherwise bear on STAA complaints or
investigations.  Cf. Donovan v. R.D. Andersen Const.
Co., Inc., 552 F. Supp. 249, 251-253 (D. Kan. 1982)
(possibility that an employee's communication to the media could
result in the institution of occupational safety proceedings
prompted finding that communication was protected).

[2]   The tractor mechanics regularly inhaled these fumes because
the truck tractor repair shop was not separated completely from
the trailer/body shop, and painting done in the latter shop was
not confined to a paint booth.