UNITED STATES
DEPARTMENT OF LABOR

USDOL/OALJ Reporter
Ass't Sec'y & Vilanj v. Lee & Eastes Tank Lines, Inc., 95- STA-36 (ALJ Nov. 21, 1995)

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Date:  November 21, 1995
Case No. 95-STA-36

In the Matter of:

ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH,
     Prosecuting Party,

and

FRANK VILANJ,
     Complainant,

v.

LEE & EASTES TANK LINES, INC.,
     Respondent.

Appearances:

Frank Vilanj, In Pro Se

Cathy L. Barnes, Esq.
     Office of the Solicitor

Aubrey Adams, Oregon Operations Manager, 
     Lee &  Eastes Tank Lines, Inc.

                      RECOMMENDED DECISION AND ORDER

     This matter arises under the provisions of section 405 of
the Surface Transportation Assistance Act of 1982, 49 U.S.C.
§31105 ("STAA").  In accordance with section 405,
Complainant filed a complaint with the Secretary of Labor
alleging that Respondent, Lee & Eastes Tank Lines, Inc. ("Lee &
Eastes"), had discharged him in retaliation for his refusal to
drive in adverse weather conditions in violation of section
405(b).  Following an investigation, the Acting Regional
Administrator for the Occupational Safety and Health
Administration concluded there was reasonable cause to believe
the complaint had merit.  On June 30, 1995, Respondent filed
timely objections to the findings.  A formal hearing was held
before the undersigned on September 12, 1995, in Portland,
Oregon.  Complainant requests back pay, minus interim earnings,
for the period beginning February 16, 1995, 
[PAGE 2]
through March 19, 1995.
                  Findings of Fact and Conclusions of Law
     The record shows that Lee & Eastes hired Complainant in July
of 1994 to drive tank trucks and trailers, transporting loads of
hazardous materials such as refined petroleum, gasoline, jet fuel
and diesel fuel.[1]   Complainant's employment was terminated
when he refused to drive on Monday, February 13, 1995, in the
aftermath of a severe snowstorm that struck the Portland area on
Sunday, February 12, 1995.  Complainant testified that he has had
"quite a bit" of experience driving in adverse weather conditions
and has driven trucks for Lee & Eastes through mountain passes in
eastern Oregon and Washington during winter storms.  TR 30.[2]  
He stated, however, that he refused to drive in Portland after
the snowstorm because city streets are more hazardous than
mountain roads in bad weather.  TR 42.
     Complainant testified that he called the Lee & Eastes
dispatcher on Sunday afternoon and left a message that he was
snowed in at his home in Gresham, which is located in hilly
terrain approximately 25 miles from Portland.  TR 22-25.  He
spoke to the dispatcher in person on Sunday evening and advised
that he would not report to work because he felt it would be
unsafe to drive a truck.  TR 24.  Complainant testified that
television stations were broadcasting weather advisories and that
the police were asking people to stay off the roads if possible. 
TR 26.  He stated that the road in front of his house was covered
by three to four inches of solid ice and that visibility was
greatly diminished by blowing snow.  TR 25.
     According to Complainant, it was still snowing on Monday,
February 13, 1995.  He testified that he would not have been able
to drive from his house to the terminal in Portland because I-84
was "almost completely shut down from pile-ups" on Monday
morning, and alternate routes, including  I-5, I-205 and back
roads, were iced over.  TR 31-32.  Complainant testified that Lee
& Eastes' Operations Manager, Aubrey Adams, called on Monday
morning and offered to send a cab to Complainant's house to pick
him up.  Complainant refused the offer, however, on the ground
that it would be unsafe to drive a truck once he got to the
terminal.  TR 33.  He testified that Mr. Adams called again on
onday afternoon and offered to personally pick Complainant up
and drive him around to inspect the roads.  Complainant stated
that he again refused the offer because he felt the roads were
too unsafe.  TR 37.
     Lee & Eastes offered testimony to the effect that, although
the roads were hazardous on Sunday, conditions improved
substantially and Complainant should have reported for work on
onday.  In this regard, Mr. Adams testified that he personally
inspected the main roads on Monday morning, including 1-5 and I-
[PAGE 3]
84, and found that they were passable with compact snow and ice
in some lanes.  He stated that all the major oil companies were
operating trucks and that the truck drivers were using chains to
get in and out of gas stations but running without chains on the
main roads.  He indicated that Lee & Eastes and the other
trucking companies were making deliveries using tank trucks only,
without trailers, for added safety.  TR 57-60.
     Mr. Adams testified that Lee & Eastes needed Complainant to
drive on Monday because several of its other drivers had been out
sick since before the storm began.[3]   He stated that, with the
exception of those who were out sick, all of the company's
drivers worked their normal shifts and completed their runs on
onday.  TR 62.  He testified that Lee & Eastes was forced to
hire three extra drivers who drove from Eugene to deliver loads
in Portland on Monday afternoon.  TR 58-59.  According to Lee & 
Eastes, Complainant had the skills to drive safely in snow and
ice by virtue of his training and experience and had in fact
driven for Lee & Eastes in severe weather conditions as recently
as December, 1994. TR 51.  On Monday afternoon, Mr. Adams
informed Complainant that a continued refusal to work would be
interpreted as a voluntary resignation.  TR 66.  Complainant
testified that he called to make himself available for work on
Tuesday, February 14, 1995, and on Wednesday, February 15, 1995,
but was told there was no work available.  He testified that he
learned from the dispatcher that there was no work for him
because he was considered a "voluntary quit." TR 34.
     Complainant relies on the testimony of Frank Coombs, the
director of safety at FTL Trucking Company in Portland.[4]   Mr.
Coombs stated that the storm in Portland brought a halt to most
of the commercial trade in the area. TR 8.  He testified that his
own company did not dispatch trucks after the storm hit on Sunday
and that the majority of the trucks his company had out at that
time were sent to other terminals.  TR 15-16.  He testified,
however, that his company began dispatching trucks carrying 
nonhazardous loads on local routes on Monday afternoon.  TR 9. On
cross-examination, Mr. Coombs testified that he personally
inspected I-5 and other roads in the Portland area on Monday and
observed commercial trucks running.  TR 14.
     The U.S. Department of Labor investigator in this matter,
Russell Hart, testified that his determination that Complainant
was unfairly terminated was based solely on an interview with
Complainant and a written response to the charges by Lee &
Eastes.  TR 48.  Mr. Hart testified that he had been unable to
obtain any official records of weather or road conditions or any
tapes of televised news reports for the dates in question.  Mr.
Hart also indicated that he did not interview drivers from Lee & 
Eastes or other companies that actually drove on Monday.  TR 52.

[PAGE 4]
     As the result of a Union grievance proceeding on March 14,
1995, Complainant was reinstated beginning on March 19, 1995,
after a 30-day suspension without back pay.  He resigned two days
later, on March 21, 1995.[5] 
                                 Analysis
     STAA section 405(b) provides that "[n]o person shall
discharge...an employee...for refusing to operate a vehicle when
such operation constitutes a violation of any Federal rules,
regulations, standards, or orders applicable to commercial motor
vehicle safety or health...". 49 U.S.C. § 2305(b).  In order
to establish a prima facie case of discrimination
cognizable under the  STAA, the complainant must show that he
engaged in some activity protected under section 405, that the
employer knew of the protected activity, and that the employer
took some adverse action against the complainant.  In addition,
the complainant must show it was likely that the adverse action
was motivated by the protected activity.  Anderson v. Jonick &
Co., Inc.,  93 STA-6 (Sec 'y Sept. 29, 1993); St. Mary's
Honor Center v. Hicks, 113 S.Ct. 2742 (1993).  Once the
complainant establishes a prima facie case, the burden
shifts to the employer to produce evidence that the adverse
action was motivated by legitimate, non-discriminatory reasons. 
At this point, however, the employer bears only the burden of
producing evidence, and the ultimate burden of persuasion of the
existence of intentional discrimination rests with the
complainant.  If the employer successfully rebuts the
complainant's prima facie case, the burden shifts to the
complainant to demonstrate that the stated reason is merely 
pretextual.  See Darty v. Zack Co., 80-ERA-2 (Apr. 25,
1983); Roadway Exp., Inc. v. Brock, 830 F.2d 179, 181  n.
6 (11th Cir. 1987).
     As noted above, in order to establish a prima facie
case the complainant must initially show that: (1) he engaged
in protected activity; (2) the respondent was aware of the
protected activity; and (3) the respondent took adverse action
against the complainant; leading to an inference that (4) the
adverse action was likely caused by the protected activity.  In
this case, it is clear that Complainant has made two of these
showings.  Specifically, it is undisputed that Lee and Eastes was
aware of Complainant's refusal to drive on February 13, 1995, and
that Complainant's employment was terminated several days
thereafter.  It is also undisputed that Complainant's refusal to
drive was the reason that his employment relationship with Lee &
Eastes was severed.  The parties do not agree, however, on the
nature of the termination, which Lee & Eastes characterizes as a
"voluntary quit" and Complainant characterizes as an involuntary
termination.
     Complainant testified that he called in for work on February

[PAGE 5]
14 and 15, 1995, but did not receive an assignment.  TR 33-34. 
r. Adams testified that he ordered the dispatcher to inform
Complainant that the company considered him to have resigned
because he refused to report to work.  TR 63-64.  It is clear,
therefore, that Complainant's employment was terminated against
his wishes at the direction of Mr. Adams.  Accordingly, I find
that Lee & Eastes took adverse employment action against
Complainant by discharging him.  Thus, the remaining issue in
dispute revolves around whether Complainant's refusal to drive
was protected activity under section 405(b).
     Complainant contends that his refusal to report to work
after the storm struck was protected because driving would have
violated federal safety regulations that require a driver to
exercise extreme caution in hazardous conditions and to refrain
from driving if conditions become sufficiently hazardous.  He
asserts that the bad road conditions were especially dangerous in
light of the gasoline products he would have been assigned to
transport.  The federal safety regulations cited by Complainant
state in pertinent part:

      Extreme caution in the operation of a motor vehicle shall  

      be exercised when hazardous conditions, such as those      

      caused by snow, ice, sleet, fog, mist, rain, dust, or      

      smoke, adversely affect visibility or traction.  Speed     

      shall be reduced when such conditions exist.  If conditions

      become sufficiently dangerous, the operation of the vehicle

      shall be discontinued and shall not be resumed until the   

      vehicle can be safely operated....

49 C.F.R. § 392.14.

      Except as provided in paragraph (B) a driver who encounters

      adverse driving conditions (as defined in paragraph (c) of 

      this section) and cannot, because of those conditions,     

      safely complete the run within the 10-hour maximum driving 

      time permitted by Section 395.3(a) may drive and be        

      permitted or required to drive a motor vehicle for not more

      than 2 additional hours in order to complete that run or to

      reach a place offering safety for vehicle occupants and    

      security for its cargo...(c) Adverse weather conditions    

      means snow, sleet, fog, other adverse weather conditions, a

      highway covered with snow or ice, or unusual road          

      conditions, none of which were apparent on the basis of    

      information known to the person dispatching the run at the 

      time it was begun.

49 C.F.R. § 395.10(a).


[PAGE 6]
     When a driver's refusal to drive is based on his assessment
that a safety regulation would be violated, the refusal is
protected under section 405(b) only if the assessment is correct.

Thus, a mere good faith belief that a violation of a federal
safety regulation would occur is insufficient by itself to render
a refusal to drive a protected activity.  Robinson v. Duff
Truck Line, Inc., 86-STA-3 (March 6, 1987).  Lee & Eastes
concedes that Complainant's refusal to work on Sunday, February
12, 1995, was reasonable.  TR 57-61.  Accordingly, Complainant
must only establish that on Monday, February 13, 1995, there
existed the type of weather conditions that would have made it
unsafe to drive.
     Complainant submits excerpts of newspaper reports from The
Oregonian, including an article indicating that as much as 12
inches of snow fell between Sunday morning and Sunday night and
that  "[w]inter storm warnings are expected to be lifted Monday,
but the morning commute will still be wild and wintery."  CX 1.
Another excerpt states "[s]leet began falling about 5 a.m. Sunday
and quickly turned into one of the biggest snowstorms to hit the
city in more than 25 years.  More than a foot of snow fell in
some places, and arctic winds piled drifts high against houses
and cars."  CX 4. The newspaper also reported that "[t]he stretch
of I-84 between Hood River and The Dalles also was closed for
most of the day" on Sunday. CX 3.  Other articles indicated that
Portland schools and school offices were closed on Monday, but
that Portland city offices remained open.  CX 2; CX 3.
     I am unable to accord much weight to these newspaper
accounts of the storm because only a portion of each article was
submitted into evidence.  I note, nevertheless, that the excerpts
suggest that weather and road conditions improved substantially
between Sunday and Monday.  For instance, one report stated that 
"[p]olice got a chance to catch their breath Monday, after
spending Sunday covering dozens of accidents on Interstate
84...." CX 3.
     Complainant also relies on certified copies of
meteorological records prepared by the U.S. Department of
Commerce for the purpose of establishing that visibility was
limited by the storm.  The records for Sunday, February 12, 1995,
show that visibility fell to 1/4 of a mile and that 3.6 inches of
snow fall was registered in the Portland area.  Significantly,
however, the data for Monday, February 13, 1995, which
encompasses the relevant time period in this case, establishes
that visibility did not fall below 10 miles at any time and that
there was no additional snow fall in the Portland area.   CX 6.
     I find that there is no convincing evidence to support
Complainant's contention that road conditions were so hazardous
on Monday, February 13, 1995, that a tank truck without a trailer

[PAGE 7]
could not have been operated safely by a driver with his training
and experience.  Complainant admits that he did not go out on the
freeways and that his knowledge of the road conditions was
derived solely from watching television and listening to a police
scanner.  TR 29.  He testified that he saw live televised reports
that I-84, I-205 and I-5 were essentially impassable and that the
interchanges were "jammed up from wrecks" on both Sunday and
onday.  TR 29-31.  Complainant's testimony, however, is not
supported by his own evidence, which consists of newspaper
articles and meteorological data indicating that weather and road
conditions had improved substantially by Monday.
     Complainant testified that his refusal to drive was also
triggered by the icy conditions in his own neighborhood.  TR 24. 
He admits, however, that Lee & Eastes offered to pick him up and
drive him to the terminal.  The relevant inquiry, therefore,
involves the condition of the roads in Portland because that is
where Complainant would have been assigned to drive had he
reported for work on Monday.  In this regard, Complainant
admitted that conditions in other areas were not as bad as they
were in his own neighborhood. TR 38.  In addition, Complainant
does not dispute that Mr. Adams told him that he could drive
safely based on Mr. Adams' personal knowledge after an inspection
of the roads.  Complainant testified, however, that he chose to
rely on information available to him from the television and from
his police scanner.  TR 39.  Under these circumstances, I find
that Complainant's belief that the roads in Portland were still
hazardous on Monday, February 13, 1995, was unreasonable.
     On the other hand, I am persuaded by the testimony of the
witnesses who personally inspected the roads on Monday.  Mr.
Adams, whom I found to be a credible witness, testified that he
drove from Seattle to Portland on Monday morning and observed
that the roads were open and that commercial trucks were running.
TR 59.  It is undisputed that Mr. Adams, knowing the condition of
the roads, then offered to drive to Complainant's house to pick
him up and bring him to the terminal.  I also credit his
testimony that the other drivers employed by Lee & Eastes were
able to report for their regular shifts and complete their
assigned runs on Monday, which further supports an inference that
hazardous driving conditions did not exist on February 13, 1995. 
In addition, Mr. Coombs testified that he inspected the roads on
onday and saw some trucks running. TR 14.  He also testified
that his company dispatched some trucks on Monday afternoon.  TR
16.
     Mr. Adams testified that Lee & Eastes needed all of its
available drivers on Monday because there were many deliveries to
be made that day and a number of drivers were out sick.  Further,
he pointed out that truck drivers are necessary to supply fuel 
[PAGE 8]
for emergency vehicles, tow-trucks, state patrol personnel,
highway workers, airports and hospitals during winter storms.  He
stated that the advisories to the general public to stay off the
roads if possible were not directed at businesses that supply
essential services and products.  TR 87-88.
     After weighing all of the evidence, including the
credibility of the witnesses, I find that conditions were not
sufficiently dangerous on Monday, February 13, 1995, that
Complainant could not safely drive a tank truck without a
trailer.  Accordingly, I find that Complainant has failed to
establish that driving would have violated federal safety
regulations.  I conclude, therefore, that Complainant was not
engaging in a protected activity by refusing to drive on Monday,
February 13, 1995 and that Lee & Eastes did not violate section
405(b) of the STAA by discharging him for said refusal.
                                   ORDER
     It is recommended that the complaint of Frank Vilanj against
Lee & Eastes Tank Lines, Inc. under section 405 of the Surface
Transportation Assistance Act be dismissed.


EDWARD C. BURCH
Administrative Law Judge



                               [ENDNOTES]

[1]  It is clear that Complainant was an "employee" as that term
is defined in the STAA, i.e., that he was a driver of a
commercial motor vehicle whose work duties directly affected
commercial motor vehicle safety and that Lee & Eastes is a
"person" as that term is defined in the STAA.  See 49
U.S.C.  §31101; §31105.


[2] The following abbreviations will be used: TR - transcript of
hearing; and  CX - Complainant's exhibits.  Complainant's
Exhibits 1 through 7 were admitted as offered.


[3] In a report to Department of Labor dated April 7, 1995, Lee &

Eastes indicated that Complainant was eighth on a seniority board
of nine drivers, and of the seven drivers above Complainant,
three were working early Monday morning and four were out sick.


[4] Complainant is presently employed by FTL Trucking Company.


[5] The  STAA expressly provides that if a complainant has been
terminated from his employment in violation of the STAA's
provisions, the complainant is entitled to reinstatement and
compensatory damages, including back pay. 49 U.S.C.
§31105(b)(3)(A).  In addition, the Secretary may award pre-
judgment interest on awards of back pay based on the interest
rates set forth in 26 U.S.C. §6621.  Nidy v. Benton
Enterprises, 90-STA-11 (Nov. 19, 1991).  The parties agree
that Complainant was earning $599.39 per week at the time he was
fired; that during the period between February 14, 1995, to March
21, 1995, he would have earned $2,996.95; and that he earned
$409.54 during that period.  Accordingly, the Acting Regional
Administrator found that Complainant is owed the sum of
$2,587.41, plus eight percent interest.