BSP Trans, Inc. v. USDOL ( 1998 )


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  •                United States Court of Appeals
    For the First Circuit
    No. 97-2282
    BSP TRANS, INC.,
    Petitioner,
    v.
    UNITED STATES DEPARTMENT OF LABOR,
    Respondent,
    ROBERT MICHAUD,
    Intervenor.
    ON PETITION FOR REVIEW OF A FINAL DECISION AND ORDER
    OF THE UNITED STATES DEPARTMENT OF LABOR
    ADMINISTRATIVE REVIEW BOARD
    Before
    Lynch, Circuit Judge,
    Campbell and Bownes, Senior Circuit Judges.
    Lawrence C. Winger with whom Kraft & Winger was on brief for
    petitioner, BSP Trans, Inc.
    Barbara A. W. McConnell, Attorney, United States Department of
    Labor, Office of the Solicitor, with whom Marvin Krislov, Deputy
    Solicitor for National Operations, Joseph M. Woodward, Associate
    Solicitor for Occupational Safety and Health, and Barbara
    Werthmann, Counsel for Appellate Litigation, were on brief for the
    United States Department of Labor.
    Louis B. Butterfield with whom Olafsen & Butterfield was on
    brief for intervenor, Robert Michaud.
    November 3, 1998
    CAMPBELL, Senior Circuit Judge.  This is a petition to
    review an order of the United States Department of Labor
    Administrative Review Board (the "Board").  See 49 U.S.C.
    31105(c).  The Board has ruled that BSP Trans, Inc. ("BSP")
    violated the Surface Transportation Assistance Act of 1982 ("STAA")
    by terminating one of its employees, Robert Michaud, in retaliation
    for his having complained to his BSP supervisors about BSP's
    failure to comply with federal transportation safety regulations.
    BSP contends that the Board erred by rejecting the factual findings
    of the U.S. Department of Labor administrative law judge ("ALJ")
    who initially heard the case.  BSP also contends that the STAA does
    not protect the purely internal complaints Michaud claims to have
    made.  We reverse the Board's order, holding that the Board was
    obligated under applicable regulations to uphold the ALJ's
    findings, because these findings were supported by substantial
    evidence on the record as a a whole.
    I. BACKGROUND
    BSP is a trucking company that transports general freight
    as a contract carrier in intrastate and interstate commerce.  The
    company is based in New Hampshire and operates five terminals in
    New Hampshire, Vermont, and Maine.  Michaud was employed at BSP's
    terminal in Westbrook, Maine between July and December, 1993.  His
    employment ended on December 23, 1993, when he was terminated,
    ostensibly for photocopying confidential BSP documents and being
    evasive when his supervisors confronted him about it.  Michaud
    claimed this reason was a pretext, and that the real reason for his
    termination was his complaints to management that BSP was requiring
    its truck drivers to exceed the hours permitted under U.S.
    Department of Transportation ("DOT") regulations.  Michaud insists
    he photocopied company documents only to document these violations.
    In January, 1994, Michaud requested that the Occupational
    Safety and Health Administration ("OSHA") investigate his
    termination.  OSHA made a preliminary determination that BSP
    wrongfully terminated Michaud and ordered BSP to reinstate him.
    BSP objected to the order and requested a de novo hearing.  A
    hearing was held before an ALJ from the U.S. Department of Labor.
    Michaud's testimony before the ALJ was widely discrepant
    from that of his supervisors.  The ALJ resolved these discrepancies
    and related credibility issues in favor of the supervisors and
    against Michaud.  The critical issue in the present petition is
    whether, in light of a regulation making the ALJ's findings
    conclusive if supported by substantial evidence on the record as a
    whole, the Board was entitled to reject those findings.  We begin
    by summarizing the testimony of the key witnesses.  We then recount
    the different findings of both the ALJ and the Board.  Finally, we
    discuss the appropriateness of these findings and their legal
    effect.
    A. Testimony Before the ALJ
    Robert Michaud's Testimony
    Michaud testified that he began working as a commercial
    truck driver at the Westbrook terminal in July, 1993.  In
    September, he read one of BSP's documents which referred to U.S.
    Department of Transportation ("DOT") regulations limiting the
    number of consecutive and weekly hours commercial truck drivers
    could operate.  He testified to being concerned that he and BSP
    were violating them.  He said he mentioned the regulations to
    fellow driver Jeffrey Labrecque, who said BSP was exempt from the
    regulations based on "the Railroad Act of New Hampshire."
    According to Michaud, he then asked a state trooper about
    the regulations.  The trooper advised Michaud to contact the DOT to
    see if the regulations applied to BSP, and if so, to copy documents
    detailing Michaud's hours.  Michaud testified that he next
    contacted the DOT and spoke to a woman he identified only as
    "Susan."  Susan told him BSP drivers could be on-duty only 12 hours
    per day and 60 hours per week.  Michaud said that he did not tell
    anyone at BSP about his conversations with Susan or the state
    trooper.
    In mid-October, Michaud received his three-month
    performance evaluation from BSP.  According to Michaud, his overall
    evaluation was "definitely above average," but his rating for
    quantity of work was "satisfactory."  When Michaud asked night
    supervisor Glen Osterberg why his rating was merely "satisfactory,"
    Osterberg is said to have replied that it was because, unlike other
    BSP drivers, Michaud was unwilling to drive extra runs on
    Saturdays.  Michaud stated that while he would welcome the
    additional income from extra Saturday runs, he was already working
    the maximum weekly hours permitted by DOT regulations.  Osterberg
    responded that the regulations did not apply to BSP.  The next day,
    Michaud contends he had a similar conversation with terminal
    supervisor Alex Kasny, and Kasny also stated that BSP was exempt
    from the regulations and that Michaud should "get it out of [his]
    mind."
    Michaud testified that he then went to safety director Ed
    Paul and described what he called "a vicious cycle":  BSP day
    trucks often returned late to the terminal, causing the night
    trucks to leave late.  Because the night truck drivers' on-duty
    time included time spent at the terminal waiting to be dispatched,
    the effect of the day trucks arriving late was that the night truck
    drivers either had to exceed the speed limit or end up working more
    hours than were permitted by DOT regulations.
    Then, sometime in late October or early November, Michaud
    says he spoke to BSP president Jack Law.  Michaud explained the
    "vicious cycle" to Law and stated that it was illegal to require
    drivers to work more than 60 hours per week.  Law listened and
    smiled, but quickly changed the subject.  Michaud then raised the
    issue with day supervisor Dave Andrews, who told Michaud that he
    would discuss the matter with acting terminal manager Michael
    Greany.
    Around this time, Michaud began copying his and other
    drivers' time cards and manifests to document what Michaud believed
    were BSP's violations.  On at least one other occasion, another BSP
    driver gave Michaud his manifest for copying.  Michaud stated that
    it was not unusual to photocopy one's own time card in the presence
    of BSP management, as drivers typically kept copies in case they
    were paid for fewer hours than they had actually worked.  He also
    claimed that occasionally he would do favors to other drivers by
    photocopying their time cards for them if he was already at the
    copy machine.  He did not consider the time cards to be
    confidential.
    Just before Thanksgiving, Kasny brought Michaud and
    fellow truck driver Larry Roy into his office.  He asked Michaud
    and Roy to make local runs in the afternoon in addition to their
    normally scheduled runs.  Michaud testified that, with Roy present,
    he told Kasny that those hours would be illegal and he would not do
    it.  Kasny responded, according to Michaud, that BSP was not
    subject to the DOT regulations and Michaud should "get it out of
    [his] thick skull about . . . illegal hours."  Michaud complied,
    but began looking for other jobs.
    According to Michaud, approximately a week before
    Christmas, he repeated his complaints to Greany, who replied,
    "Well, it was nice knowing you.  Have a good holiday."  Michaud
    interpreted this comment to mean that he was about to be fired.
    On December 23, 1993, Michaud arrived at the terminal
    early in the morning and began copying other drivers' time cards to
    document their hours.  Fellow employees Dane Evoga and Dan Vaughn
    were already at the copy machine, but the machine had jammed.
    Michaud fixed the paper jam, made copies of the time cards, and
    left the room.
    Later that morning, Osterberg told Michaud to punch in
    and go see Kasny.  Kasny asked both Michaud and Osterberg to come
    into his office.  Kasny asked Michaud if he had been copying other
    drivers' time cards and manifests.  Michaud said yes, but mentioned
    that he did it as a favor to other drivers, when he happened to be
    ahead of them in line at the copy machine.  Michaud testified, "In
    other words, I was avoiding telling them the whole thing.  I was
    doing those without permission, the other ones."  When Kasny asked
    if Michaud copied other drivers' time cards without their
    permission, Michaud remained silent because, as he stated, "now
    they were pinning me down . . . [a]nd I figured if I revealed that,
    I'm fired."  Michaud testified that he didn't believe either Kasny
    or Osterberg ever asked him why he was copying the documents, and
    he did not tell them.  Michaud was told that he was terminated.
    Dan Vaughn's Testimony
    Vaughn was one of the dock workers who was using the copy
    machine when Michaud entered the terminal's office on December
    23rd.  Vaughn testified to the following:  Michaud and another
    driver, Jeffrey Taylor, entered the office sometime between 3 a.m.
    and 4 a.m.  Michaud was talking about "making a file to cover his
    ass."  Taylor opened the wooden file cabinet where the manifests
    were stored and removed a stack of documents.  The two men also
    retrieved time cards from the drivers' room outside the office.
    Michaud began to photocopy the documents and asked Taylor to stand
    look-out at the door to the office.  This conduct lasted
    approximately 15-20 minutes.
    During this time, Vaughn was sitting at a desk on the
    other side of the office.  Michaud and Taylor chatted with Vaughn
    and generally made no effort to hide from him what they were doing.
    At one point, Vaughn walked over to the copy machine and recognized
    the time card of employee Pete Chiasson.  Among the stack of
    documents he saw Michaud copying, that was the only document he
    specifically identified.
    Vaughn believed that what Michaud and Taylor had done was
    "wrong," and he went to Andrews later that morning.  Vaughn
    testified that he told Andrews what he had witnessed, stating, "I
    didn't think it was right, you know, employees in there filing
    through stuff and copying the manifests . . . copying other
    people's time card[s]."
    Dave Andrews' Testimony
    Andrews testified that he understood Vaughn to say that
    Michaud alone did the copying, with Taylor merely assisting him by
    acting as look-out.  Andrews stated that he then alerted Kasny.
    However, he told Kasny only about Michaud's involvement, because,
    according to Andrews, the manifests were Andrews' primary concern
    and Vaughn had reported that only Michaud was doing the copying.
    He knew that drivers often copied their own manifests, but believed
    that he ought to advise Kasny that Vaughn had seen Michaud copying
    "a stack of manifests."
    Andrews further testified that Michaud had previously
    mentioned to Andrews that he wanted to make more money and once
    asked him, "Is there any way to get these day drivers in here any
    earlier?"  However, according to Andrews, Michaud had never
    mentioned to him excessive hours or the DOT hours of service
    regulations.  During Michaud's employment, Andrews was aware that
    drivers were working long hours and not keeping logs, and he knew
    that might violate DOT regulations.  The issue, however, never came
    up in conversation with Michaud, and Andrews never discussed it
    with his superiors.
    Alex Kasny's Testimony
    Kasny testified that, at approximately 7:30 a.m. on
    December 23rd, Andrews approached him and stated that Vaughn had
    witnessed Michaud making copies of time cards and other paperwork
    in the office.  When Andrews said that was all he knew, Kasny
    summoned Vaughn to his office.
    Vaughn repeated to Kasny that he had witnessed Michaud
    copying time cards and other paperwork, and that file drawers in
    the office had been opened and files were laying out.  Kasny
    assumed the "other paperwork" meant manifests, since they would
    provide a quick, easy way of getting information about multiple
    customers at once.  Manifests, Kasny explained, include information
    regarding BSP's customers, all the trucking companies with which
    BSP has agreements, what freight is being transported, and, by
    inference, BSP's rate structures.  Manifests do not, however,
    directly state BSP's rates; that information is printed on BSP's
    bills of lading, which were also located in the file cabinet.
    Kasny then called Greany.  He told Greany that he was
    concerned because Michaud had been caught copying manifests.
    Greany told him he would call back.  About an hour later, Greany
    called back and told Kasny to bring Michaud and a witness into
    Kasny's office and ask Michaud directly whether he had been making
    copies of time cards and manifests.
    Michaud arrived for his shift at approximately 5:00 p.m.
    Kasny asked Osterberg and Michaud into his office and closed the
    door.  He asked Michaud, "Did you make any photocopies of time
    cards and/or manifests?"  Michaud responded, "Who told you this?
    Did the dock guys tell you this?  They've been out to get me."
    Kasny repeated his question a total of six times.  Each time,
    Michaud stated only that he had copied his own time card, and Larry
    Roy's, at Roy's request.  Kasny then told Michaud that he had been
    seen copying time cards and manifests, and that he would be
    terminated.  He asked for Michaud's fuel card and toll cards and
    asked Michaud to leave the premises.
    Kasny called Greany to "let him know of the conversation
    that I had, and that Mr. Michaud was   was, indeed, dismissed from
    employment."  Because he was relatively new to his management
    position, Kasny did not believe he had the authority to terminate
    employees, "unless it was just an out-and-outright blatant type
    incident."  He stated that while he recommended to Greany that
    Michaud be terminated, the ultimate decision was Greany's.
    Kasny testified that, prior to Michaud's termination,
    Michaud never complained to him about DOT hours of service
    regulations.  Michaud did not mention the regulations or his hours
    during Michaud's mid-October performance evaluation.  Rather, the
    only topic discussed during the meeting was whether Michaud was
    entitled to more than the 50-cent-per-hour raise he was told he
    would receive.  Michaud also said nothing about illegal hours or
    DOT regulations when Kasny confronted him about the copying of
    documents.  While Kasny himself was familiar with the regulations
    from his own days as a truck driver, he insisted that the first
    time he heard allegations that BSP violated them was several months
    after Michaud was terminated.
    Michael Greany's Testimony
    Greany testified that, on December 23rd, he was in
    Londonderry, New Hampshire.  He received a phone call from Kasny,
    who told him that Michaud had been caught copying time cards and
    manifests.  Greany was not particularly concerned about copying of
    time cards, because he knew that such practice was commonplace
    among BSP drivers.  He was quite concerned, however, about the
    copying of manifests because he viewed those documents as
    potentially valuable to competitors.  He thought of a conversation
    he had with Michaud in late October or early November in which
    Michaud was upset that he had not received a raise that he thought
    he had been promised.  Greany immediately became concerned that
    Michaud was copying the documents for profit.
    Kasny asked Greany what he should do, and Greany told
    Kasny he would discuss the matter with company president Jack Law
    and get back to him.  Greany conferred with Law and telephoned
    Kasny.  During this second conversation, Kasny also mentioned that
    the drawer to the file cabinets was open when Michaud was copying.
    Greany told Kasny that while Michaud's conduct required "instant
    dismissal," Kasny should try to find out exactly what documents had
    been copied.
    Later that afternoon, Kasny called Greany to report what
    had happened when he confronted Michaud.  Kasny reported that
    Michaud had been evasive and very uncooperative, but ultimately
    admitted to photocopying time cards (both his own and others') and
    manifests.  At that time, Greany did not yet think that Michaud had
    actually been terminated, so he told Kasny to "let him go."
    Greany testified that throughout Michaud's employment he
    was unaware of the DOT hours of service regulations, even though it
    was his responsibility to be aware of them.  He stated that Michaud
    never once mentioned to him hours of service or expressed "any kind
    of regulatory concerns."  Approximately a week before Christmas,
    Michaud mentioned to him that the company lost money when the day
    trucks arrived late and stated, "it's tough to make up for that
    because of the type of schedules that they're operating on."
    Greany simply replied, "We can't control the shipping community.
    We get them back as soon as we can, and we go out."  The day
    Michaud was terminated, Kasny did not report that Michaud had
    raised these issues, and Greany was not even aware of the DOT
    regulations at that time.
    Jeffrey Taylor's Testimony
    Jeffrey Taylor testified that he never assisted Michaud
    copy documents on December 23rd or any other day.  He stated that
    on December 23rd, he was not even present at the Westbrook terminal
    because he was receiving workers' compensation at the time.  During
    the time that he was receiving workers' compensation - from
    December 1, 1993, to February 26, 1994 - he came to work only
    twice,  December 13 (he believed) and February 22.
    B. The ALJ's Decision
    In September, 1996, the ALJ issued a recommended decision
    ruling that Michaud's termination did not violate the STAA.  The
    ALJ's reasoning was straightforward - that Michaud did not register
    "internal complaints cognizable as protected activity under the
    Act."  We quote liberally from the ALJ's decision, omitting only
    citations to the record:
    First, there is no corroboration whatsoever for Mr.
    Michaud's testimony.  This lack of corroboration is
    troubling, given that complainant contends that at least
    one driver, Larry Roy, was present during the . . .
    conversation with Kasny in late November 1993.  Nor was
    "Susan" from DOT further identified or called to testify,
    Mr. Michaud's testimony stands alone and directly
    contradicted by three witnesses.  Kasny, Andrews, and
    Greany denied that the hours of service subject came up,
    although they recalled a number of occasions when
    complainant discussed the "vicious cycle."  Other
    discrepancies indicate that complainant's memory of the
    events is perhaps more as he wishes they had occurred,
    rather than how they actually occurred.  For example,
    Dave Andrews recalls telling complainant that his desire
    to have the day shift trucks come in earlier was not
    workable because the customers dictate the volume of
    freight.  Greany echoed this fact of business life.  Yet
    Mr. Michaud testified that Andrews agreed with him about
    bringing the day trucks in earlier.  Another discrepancy
    is that Kasny and Andrews deny  talking to complainant
    about the New Hampshire Railway Act, but complainant may
    have talked to another driver, Jeffrey Labrecque, about
    it.
    Second, Mr. Michaud's own testimony was extremely vague
    and often tangential.  He spoke haltingly about key
    events, and was frequently unable to remember dates, and
    who said what.  It is unnecessary to determine whether
    his lack of clarity stems from conscious dissembling, for
    Mr. Michaud himself admitted that his mental state causes
    his mind to wander and lose focus.  As a result, he is
    not a reliable witness.
    Third, complainant's statements about the "vicious cycle"
    and getting his run accomplished centered primarily on
    his extra job assignments and concern with making more
    money, rather than on perceived safety or hours
    violations.
    Finally, the fact that Mr. Michaud kept his alleged early
    contacts with the DOT and state trooper a secret from BSP
    management suggests that he either did not make those
    contacts at all or that he was not really seriously
    concerned about management making a change.  In this
    regard, I find complainant's testimony contradictory and
    not at all reconcilable.  Complainant testified that
    before his October review, he instituted a conversation
    with a state trooper about the hours of service rules;
    again, he was very vague about the when, where and what
    of these contacts.  However, he claims that he did not
    see the document that "jogged his memory" and "concern"
    about the hours of service rules until the October review
    itself.  There is no explanation for why, if he had no
    concern about the hours of service violation until the
    review, he supposedly called the DOT and stop[ped] a
    state trooper before that time.  Even assuming he
    telephoned DOT and contacted the trooper after the
    review, it is undisputed that he did not disclose the
    company's name to state or federal authorities, nor tell
    BSP about the contacts.  A reasonable inference is that
    his level of alleged concern was somewhere between
    minimal and none.  The evidence leaves it very uncertain
    whether Mr. Michaud actually contacted DOT or spoke to a
    state trooper.
    In short, I find that Mr. Michaud was engaged primarily
    in a struggle to get his point across to Alex Kasny, who
    was simply too new in his job to handle the situation
    well.  while this may have been poor management, along
    with an interpersonal struggle, it was not about DOT
    hours of service violations.  Rather, the record
    convinces me that the hours-of-service issue was
    incidental and, more likely than not, after the fact of
    discharge.  For these reasons, I conclude that the
    complainant has not shown by a preponderance of the
    evidence that he registered internal complaints
    cognizable under the Act.
    The ALJ therefore recommended that Michaud's claim of
    discrimination be dismissed, and Michaud objected to this
    recommendation before the Board.
    C. The Board's Decision
    On January 6, 1997, the Board rejected the ALJ's
    recommended decision and ruled that Michaud's firing violated the
    STAA.  Specifically, the Board concluded that Michaud's conduct was
    protected by the STAA and BSP's stated "'legitimate' reason for
    firing Michaud [was] not credible."
    The Board initially acknowledged its duty under STAA Rule
    109(c)(3) to accept as conclusive the ALJ's findings that were
    supported by substantial evidence.  However, the Board stated,
    "some of the ALJ's factual findings are not supported by the record
    evidence and consequently we make corrected findings of fact."
    Most importantly, the Board credited Michaud's testimony
    that he had complained to Osterberg, Kasny, Paul, Andrews, and Law
    about excessive hours under the DOT regulations.  The ALJ had
    questioned whether these conversations had ever taken place and
    stated that Michaud's "statements about the 'vicious cycle' and
    getting his run accomplished centered primarily on his extra job
    assignments and concern with making more money, rather than on
    perceived safety or hours violations."  The Board decided that this
    statement by the ALJ was not supported by substantial evidence,
    citing Greany's testimony that Michaud mentioned the late departure
    of night drivers out of concern for the company's money, not
    Michaud's own money.  The Board reasoned that "if Michaud only
    wanted to earn more money and did not have safety concerns, he
    would have agreed to make extra runs on Saturday."
    The Board also rejected the ALJ's finding that "the
    person who made the decision, and the only person with authority to
    make the decision, to discharge Mr. Michaud was Michael
    Greany . . . [and] there is no reliable evidence that Greany knew
    about any 'hours of service' complaints by complainant."  According
    to the Board, the record showed that Kasny was "instrumental in the
    firing," and alternatively, that Greany "had actual knowledge of
    Michaud's complaint about the 'vicious cycle' and in light of that
    knowledge he also knew that copies of time cards could substantiate
    Michaud's suspicion of time in service violations."
    Moreover, the Board disagreed with the ALJ about
    Michaud's alleged conversations with the state trooper and "Susan"
    from the DOT.  The ALJ found that Michaud's failure to mention
    these conversations to his BSP supervisors suggested that the
    conversations had never occurred at all.  The Board responded,
    "[i]n light of BSP's failure to take corrective action when the
    violation was brought to it's [sic] attention . . . [c]ommon sense
    dictates that Michaud would want to have documentary evidence of a
    violation before filing a complaint and would not want his employer
    to know about the complaint until it was filed."
    The Board ultimately found that
    [BSP's] stated "legitimate" reason for terminating
    Michaud, [i.e., that he was caught copying time cards and
    manifests,] is not credible because the company did not
    treat the manifests as confidential and the information
    on manifests would reveal little to a competitor.  We
    further find that Michaud established by a preponderance
    of the evidence that BSP discharged him for engaging in
    the protected activity of gathering evidence that BSP
    suspected would be used to support a complaint about
    hours of service violations.
    The Board remanded the cause to the ALJ for a
    recommendation on damages.  Five months later, the ALJ recommended
    that Michaud be awarded damages for back pay, front pay, health
    insurance benefits, compensatory damages in the amount of $75,000,
    as well as attorneys' fees, costs, and equitable relief.  This
    recommendation was adopted by the Board with only minor
    alterations.  BSP then brought this petition seeking review of the
    Board's final order.
    II. DISCUSSION
    We review the Board's final order according to the
    standards of the Administrative Procedure Act, 5 U.S.C.  701 et.
    seq.  We must affirm the Board's decision unless its legal
    conclusions are arbitrary, capricious, or otherwise not in
    accordance with law, or if its factual findings are unsupported by
    substantial evidence.  See 5 U.S.C.  706(2); Clean Harbors Envtl.
    Serv., Inc. v. Herman, 
    146 F.3d 12
    , 19 (1st Cir. 1998).
    Section 405(a)(1)(A) of the STAA provides in relevant
    part:
    (a) Prohibitions.  (1) A person may not
    discharge an employee regarding pay, terms, or
    privileges of employment because--
    (A) the employee, or another person at the
    employee's request, has filed a complaint or
    begun a proceeding related to a violation of a
    commercial motor vehicle safety regulation,
    standard, or order, or has testified or will
    testify in such a proceeding . . .
    49 U.S.C.  31105(a)(1)(A).
    We have held that, in order to state a claim of
    retaliatory discharge under this section, the complainant must
    demonstrate that he or she engaged in a  protected activity, that
    he or she was subjected to adverse employment action, and that a
    causal connection existed between the protected activity and the
    adverse action.  See Clean Harbors, 146 F.3d at 21.  If a
    complainant makes out a prima facie case, the employer may rebut
    that showing with evidence of a legitimate, non-retaliatory reason
    for the adverse employment action.  See id.  The burden then shifts
    back to the complainant to prove that the proffered reason is
    actually a pretext for unlawful retaliation.  See id.; cf. Texas
    Dept. of Community Affairs v. Burdine, 
    450 U.S. 248
     (1981)(setting
    forth the burden-shifting framework).
    BSP contends that the Board (1) erroneously failed to
    defer to the ALJ's factual findings and (2) incorrectly interpreted
    the STAA to include Michaud's conduct.  We address these arguments
    in turn.
    A. The Board's Treatment of the ALJ's Factual Findings
    The Board rejected the ALJ's finding that the BSP
    officials who terminated Michaud were unaware of his complaints
    about the maximum hour regulations.  The Board also rejected the
    ALJ's finding that the real reason for Michaud's termination was
    his copying manifests and being evasive when confronted about this
    allegedly improper conduct.  BSP now argues that the Board erred in
    ignoring the ALJ's findings on these matters.  We agree.
    The regulations promulgated pursuant to the STAA require
    the Board to treat as conclusive an ALJ's factual findings "if
    supported by substantial evidence on the record as a whole."  29
    C.F.R.  1978.109(c)(3) ("STAA Rule 109(c)(3)").  Hence, while we
    are authorized to review only the Board's decision, see 49 U.S.C.
    31105(c), in doing so
    we must also determine whether under the STAA
    Rules [the Board] was bound by the ALJ's
    findings of fact.  If there was substantial
    evidence to support the ALJ's findings, then
    the [Board's] refusal to treat them as
    conclusive was contrary to STAA Rule 109(c)(3)
    and [its] decision must be set aside.
    Castle Coal & Oil Co. v. Reich, 
    55 F.3d 41
    , 44 (2d Cir. 1995).
    We need, then, to review the record in its entirety, in
    order to determine if the ALJ's findings were or were not supported
    by substantial evidence.  If they were, then the Board's rejection
    of these findings constitutes legal error that may warrant
    reversal.  See Air America, Inc. v. Director, Office of Workers'
    Compensation Programs, 
    597 F.2d 773
     (1st Cir. 1979) ("It is within
    our authority, in reviewing the Review Board's decision for legal
    error, to reverse the Board if it erred in evaluating the evidence
    underlying the ALJ's finding not to constitute substantial
    evidence."); Prolerized New England Co. v. Benefits Review Board,
    
    637 F.2d 30
    , 35-36 (1st Cir. 1980) (same).  If, however, the ALJ's
    findings were not supported by substantial evidence, we must then
    also satisfy ourselves that the Board's own findings were based on
    substantial evidence.
    "Substantial evidence is more than a scintilla, and must
    do more than create a suspicion of the existence of the fact to be
    established.  It means such relevant evidence as a reasonable mind
    might accept as adequate to support a conclusion."  NLRB v.
    Columbian Enameling & Stamping Co., 
    306 U.S. 292
    , 300 (1939)
    (internal quotation marks and citation omitted).  Substantial
    evidence does not require, however, such proof as would foreclose
    the reasonable possibility of an alternate conclusion.  It is,
    therefore, possible for the Board's findings to conflict with the
    ALJ's but for each set of findings to be supported by substantial
    evidence.  In such a case, the ALJ's findings would prevail, given
    STAA Rule 109(c)(3).  See Brink's, Inc. v. Herman, 
    148 F.3d 175
    ,
    179 (2d Cir. 1998) ("Thus, if we determine that the ALJ's decision
    was based on substantial evidence, we must reverse the [Board] and
    order that the ALJ's decision be adopted; this is so even if the
    [Board's] decision was also based on substantial evidence.").
    The crux of the ALJ's recommended decision was that there
    was no connection between Michaud's alleged complaints about the
    DOT regulations and his termination.  We think that this finding
    was supported by substantial evidence on the record as a whole,
    with the result that the Board's decision must be set aside.
    Specifically, substantial evidence supported the ALJ's finding that
    while [the handling of Michaud's complaints] may have
    been poor management, along with an interpersonal
    struggle, [the complaints were] not about DOT hours of
    service violations.  Rather, the record convinces me that
    the hours-of-service issue was incidental and, more
    likely than not, after the fact of discharge.
    According to Michaud, he complained about illegal hours
    to Osterberg, Kasny, Paul, Law, Andrews, Kasny (again), and finally
    to Greany.  However, as the ALJ noted, not a single witness
    corroborated this part of Michaud's testimony.  Osterberg, Paul,
    and Law were not called as witnesses.  Nor was Larry Roy, whom
    Michaud testified was present when, just before Thanksgiving,
    Michaud says he told Kasny that his hours violated the DOT
    regulations and Kasny responded, "Get it out of your thick skull
    about . . . illegeal hours."
    In fact, Kasny, Andrews, and Greany each testified that
    excessive hours or the DOT regulations never came up in their
    conversations with Michaud.  Kasny stated that the only employment
    issue Michaud ever discussed with him was whether Michaud was
    entitled to a raise.  Andrews also stated that Michaud mentioned
    that he wanted to earn more money.  According to Andrews, the only
    discussion even remotely related to hours of service was Michaud's
    stray comment one day, "Is there any way to get these day drivers
    in here any earlier?"  Andrews testified that, though Andrews was
    aware of the DOT regulations, Michaud never directly mentioned them
    to him, and he did not think Michaud's comment was about them.
    Greany's testimony was similar to that of Andrews.  He testified
    that Michaud never once mentioned to him any "regulatory concerns"
    or excessive hours of service.  In fact, Greany stated that, until
    OSHA began its investigation after Michaud's termination, he was
    entirely unaware that the regulations even existed.
    While a fact finder could have believed Michaud and
    disbelieved the other witnesses, we are unable to say that a
    reasonable mind could not also credit the testimony of Kasny,
    Andrews, and Greany.  The ALJ had the advantage of seeing and
    hearing the witnesses.  She specifically found Michaud not to be a
    "reliable" witness.  The others' testimony was adequate to support
    the conclusion that Michaud never complained to them about
    excessive hours or other violations of the DOT regulations.  If
    Michaud never made such complaints, his discharge could not have
    been based on them.  The Board, of course, disagreed, discrediting
    these witnesses' testimony by stating "if Michaud only wanted to
    earn more money and did not have safety concerns, he would have
    agreed to make extra runs on Saturday."  The unstated inference, of
    course, is that if Michaud's "vicious cycle" comments were not
    merely about money, then they must have been about excessive hours.
    Even if this is one possible inference, it is scarcely so
    apparent as to permit the Board to reject, on a cold record and its
    own speculation, the ALJ's credibility determinations.  It is the
    ALJ's usual province to make determinations about witness
    credibility.  See, e.g., ACME Tile & Terrazzo Co. v. NLRB, 
    87 F.3d 558
    , 561 (1st Cir. 1996).  While these determinations may be
    overturned if unsupported, the Board is not entitled to reject them
    without stronger evidence of mistake than this record demonstrates.
    To be sure, where the Board and the ALJ agree as to the existence
    of a particular fact, the Board may draw different inferences from
    that fact, see Kallman v. NLRB, 
    640 F.2d 1094
    , 1099 (9th Cir.
    1981), but that is not what occurred here.  Here, several witnesses
    presented diametrically opposed testimony as to a particular fact,
    and the ALJ has found one version credible and the other not
    credible.  The effect of STAA Rule 109(c)(3) is that the Board
    cannot simply disagree, unless no reasonable mind could accept as
    adequate the relevant evidence on which the ALJ's findings rested.
    That threshold was not met here.  Except for Michaud, no
    witness testified to Michaud's having complained of illegal hours
    or the DOT regulations to BSP management, or to anyone else for
    that matter.  And, given Michaud's admitted memory problems and
    often erratic testimony, reasonable minds could have concluded that
    Michaud was either not telling the truth or remembering events as
    he wished they had been, rather than as they were.
    B.  The Board's Interpretation of the STAA
    BSP argues that Michaud cannot invoke the protection of
    the STAA because, at the time of his termination, he had not "filed
    a complaint or begun a proceeding" within the meaning of 49 U.S.C.
    31105(a)(1)(A).  The ALJ determined that Michaud "ha[d] not shown
    by a preponderance of the evidence that he registered internal
    complaints cognizable under the Act."  Because we hold that the
    Board was obligated to accept the ALJ's finding that Michaud never
    actually complained to his supervisors about DOT hours of service
    violations, we need not consider whether this conduct would have
    been protected.  Obviously, an employer cannot retaliate on the
    basis of complaints never made.
    The Board, however, also stated,
    [e]ven if we were to conclude that Michaud's internal
    complaints did not constitute protected activity, there
    is no doubt that Michaud engaged in protected activity
    when he copied time cards and his own manifest as
    evidence of hours of service violations.  Gathering
    evidence to be used to support a protected complaint is
    itself protected under whistle blower provisions.
    While we do not dispute that the STAA protects some acts of
    evidence-gathering to be used to support a protected complaint, we
    reiterate that the Board was bound to accept the ALJ's finding that
    there was no complaint to support.  And, if Michaud never
    complained to his supervisors about DOT regulations, they would
    have little reason to think that his photocopying time cards and
    manifests was an attempt to document BSP's violations.  Both Kasny
    and Greany testified that they believed the reason Michaud was
    copying documents was that manifests contained information that was
    potentially valuable to BSP's competitors.
    The manifests did, in fact, provide information about the
    cargoes BSP carried, although the novelty of this information and
    the extent to which BSP treated it as confidential were disputed.
    In any case, the actual utility of this information is not
    conclusive here.  As a panel of this court recently noted, the
    scope of protection afforded under the STAA depends on whether the
    employee's conduct was "sufficiently definite to put [the employer]
    on notice that he was engaging in protected activity."  Clean
    Harbors, 146 F.3d at 22.   The panel recognized that "[c]learly
    there is a point at which an employee's concerns and comments are
    too generalized and informal to constitute 'complaints' that are
    'filed' with an employer within the meaning of the STAA." Id.  We
    have no occasion to identify that exact locus here.  We simply hold
    that in the absence of Michaud's actual complaint to management, he
    cannot invoke the protections of the STAA based merely on his
    copying of company papers for the undisclosed purpose of
    documenting the company's perceived regulatory violations.  We note
    that Michaud himself testified that, at the conference at which
    Kasny indicated he was dismissed, Michaud nonetheless never
    disclosed his purpose for copying the company papers, and there is
    no evidence that such disclosure was made at another time before
    discharge.
    Because the ALJ's supported factual findings lead to the
    conclusion that Michaud did not engage in protected activity, we
    need proceed no further.  Clean Harbors, 146 F.3d at 21.
    The decision of the Board is reversed and remanded with
    instructions to enter judgment on behalf of the petitioner.