UNITED STATES
DEPARTMENT OF LABOR

USDOL/OALJ Reporter
Nance v. Polycrest, Inc., 90-STA-43 (Sec'y Aug. 5, 1992)

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DATE:  August 5, 1992
CASE NO. 90-STA-43

IN THE MATTER OF:

RONALD NANCE,
     COMPLAINANT,
v

POLYCREST, INCORPORATED,
     RESPONDENT.

BEFORE:  THE SECRETARY OF LABOR

                         FINAL DECISION AND ORDER

     On April 15, 1992, the Administrative Law Judge (ALJ) issued
a Recommended Decision and Order (R.D. and 0.) in this case which
arises under the Surface Transportation Assistance Act of 1982
(STAA), 49 U.S.C. app. § 2305 (1988).  Pursuant to the
implementing regulations, the ALJ's decision is now before me for
review.  See 29 C.F.R. § 1978.109(a) (1991).[1]
Although permitted, no briefs have been filed.  29 C.F.R. §
1978.l09(c)(2).
     Complainant alleges that he was fired by Respondent on March
19, 1990, because he made safety complaints and on one occasion,
refused to drive an unsafe vehicle.   After considering the
documentary evidence and the testimony at the hearing, the ALJ
recommends that the complaint be dismissed because Complainant
failed to prove either that he engaged in a protected activity or
that he was subjected to an adverse employment action.  The ALJ
concluded that the discharge resulted from a legitimate business
decision and was not a discriminatory reprisal.
     Upon review of the record, I agree that this complaint must
be denied, although I do not fully agree with the ALJ's analysis.
First and indisputably, Complainant was discharged from his
employment with Respondent and, consequently, was subjected to an
adverse employment action.  49 U.S.C. app. § 2305(a), (b).
Additionally, Complainant's testimony, which the ALJ did not
explicitly discredit, establishes that he engaged in protected
conduct under the STAA by complaining to Respondent about, for
example, bad tires on the vehicles he was required to drive
See R.D. and 0. at 3; Transcript (T.) at 10-12;
Moon v. Transport Drivers. Inc., 836 F.2d 226, 227-
29 (6th Cir. 1987); 49 C.F.R. § 395.75 (1991).[2]  
Regardless, the evidence does not show that Respondent discharged
Complainant because of the protected safety
[PAGE 2]
complaints, as would be required in order to prevail under the
STAA.  Carroll v. J.B. Hunt Transportation. Inc., Case No.
91-STA-17, Sec. Final Dec. and Ord., June 23, 1992, slip op. at
2-3. On the morning of March 19, Respondent discharged
Complainant almost immediately upon discovering that Complainant
had failed to dispatch on time.  According to Complainant's own
statements and testimony, Respondent's president, David Clements,
was incredulous that Complainant had sat and waited two hours for
a particular service station to open so that he could refuel his
truck.  After relaying Clements' message that Complainant was
fired, Complainant's foreman also chided Complainant for
exercising poor judgment in delaying the run.  T. at 12-14.
Considering this evidence, I find that protected activity was not
a motivating factor in Complainant's discharge and Complainant,
therefore, failed to establish a prima facie case of
discriminatory discharge.  Monteer v. Milky Way Transport Co..
Inc., Case No. 90-STA-9, Sec. Final Dec. and Ord., Jul. 31,
1990, slip op. at 3-4.
     Accordingly, this complaint is DENIED.
     SO ORDERED.
                                    LYNN MARTIN
                                    Secretary of Labor
Washington, D.C.



                               [ENDNOTES]

[1] By order dated August 20, 1991, I remanded this case to the
ALJ for further proceedings because I disagreed with his initial
recommendation to dismiss the complaint based on Complainant's
failure to appear at the hearing.  In accordance with my order,
the ALJ held an evidentiary hearing on November 6, 1991.  Only
Complainant, representing himself, appeared.


[2] The ALJ also did not make specific findings as to whether
Complainant's allegation that he refused to pull a trailer that
had bad brakes constituted a protected refusal to drive under
Section 2305(b) of the STAA.  On this scant record I do not
accept Complainant's allegation, but even if I did, it is clear
to me that Complainant's refusal to drive that day played no part
in Respondent's subsequent decision to terminate him.