DATE:     April 4, 1995

CASE NO.  94-STA-00055

IN THE MATTER OF

MARK BRUNNER
          COMPLAINANT

v.

DUNN'S TREE SERVICE
          RESPONDENT

Appearances:

Mark P. Mercier, Esq.,
          For the Complainant

Harry E. Calmar, Esq.,
          For the Respondent

Before:   Ainsworth H. Brown
          Administrative Law Judge


DECISION AND ORDER

     This matter is presented upon a request for hearing filed by
the Complainant on September 28, 1994.  On October 7, 1994, the
matter was received on my docket.
     A notice of hearing was issued on October 18, but the matter
was continued by order dated November 9, and rescheduled for West
Hartford, Connecticut for January 17 and 18, 1995.  The
proceeding took place on those dates.  The parties were given
until March 20, 1995 to provide their closing arguments and both
were received within a day or two of that date.  As the matter
was competently tried I found that the arguments were
accomplished with eridition and legal acumen, and, were helpful
in guiding me to a decision that while disappointing to one side,
that party presented a highly professional exposition of its side
of the dispute.
                     FACTUAL BACKGROUND
[PAGE 2]
     Mr. Brunner, the Complainant in this matter, has worked for
the Respondent Dunn's Tree Service going back to approximately
1985, possibly earlier, a conflict that is not significant to
resolve to reach the recommended outcome.
     The testimony is clear that during the 1993 work season Mr.
Brunner uttered reports depicting his concerns about various
defects respecting the Respondent's vehicles, particularly the
"bucket" truck.  Following the winter lay off Mr. Brunner was
called back to work.  The critical time frame starts with the
week of April 25, 1994 when the regular operator of the bucket
truck began his vacation and Mr. Brunner was assigned to operate
that vehicle.  He describes various defects involving the safe
operation of the vehicle.  The Respondent's inspections did not
confirm more than a minor leak and no safety problems.
     On the fateful day in question Mr. Brunner says that his
inspection of the vehicle disclosed uncorrected safety
difficulties, but that the younger Mr. Dunn left in a hurry so
that the defects could not be discussed.  Mr. Brunner implies
that Mr. Dunn's leaving was to avoid such a discussion.
     Upon arriving at the work site, a campground, Mr. Brunner
remained in the vehicle and he did engage Robert Dunn in
conversation about the safety defects.  Mr. Dunn denies that they
existed whereupon there is agreement that a heated discussion or
argument ensued replete with raised voices, yelling, and
expletives at least on Mr. Brunner's part.  The only witnesses to
the entire res gestae are Mark
Brunner and Robert Dunn.  The other workers, Philip Dunn (father
and founder of the company), Ronald Parlee, and Mitchell Gahagan
confirm that voices were raised, some of Mr. Brunner's language,
and that the Complainant took a vehicle and left in haste.  There
is no disagreement that Mr. Brunner took the vehicle despite a
direct order not to and with a threat that his unauthorized usage
would be reported to authorities.  The record does not show that
such an action took place.
     The critical conflict is presented as to whether Robert Dunn
merely advised Mr. Brunner that he did not have to continue to
operate the bucket truck, or, whether his failure to operate it
would cause a termination of his employment.  Before Mr. Brunner
left the job site he was heard to say that he was "out of here",
tending to suggest a voluntary leaving on his part.
     The Complainant's position is that he was fired for his 
[PAGE 3]
refusal to further operate the truck that he believed to be
unsafe.  The Respondent's view is that it was a voluntary
leaving.  The latter's position is somewhat undermined with the
use of the terminology "Mr. Brunner's termination" at the bottom
of page 284 of Philip Dunn's direct examination, and the fact
that the Respondent characterized the event for unemployment
compensation purposes in a manner for Mr. Brunner to be eligible
for those benefits.
     The interpretation that I give to this latter action is that
in spite of the Complainant's mercurial personality the
Respondent was willing to rehire him on at least a couple of
occasions because of his qualities as a worker.  The Respondent
was apparently willing to tolerate his personality even after the
May 3 incident.  I am also impressed with the forbearance in not
taking any action against him for the unauthorized use of the
truck to leave the campground.
     At the close of the hearing the Respondent recognized the
credibility determination that is vital to the resolution of this
matter.  I observed then and as I discuss it now the "fragments"
that cause me to recommend the dismissal of the complaint.  In
addition to the earlier observation that the only parties to the
critical discussion were Robert Dunn and the Complainant other
witnesses including Mr. Parlee do not confirm Mr. Brunner's
version to the extent that they were aware of what was said.
     As the Respondent correctly contends it is Mr. Brunner's
burden to prove by the "fair preponderance" of the evidence that
he was discharged because the vehicle he refused to operate as
unsafe.   It is only his version of the argument that supports
that he was terminated because of the condition of the vehicle. 
The record utterly fails to prove that the vehicle's operation on
May 3 would constitute a violation of law.  The vehicle had
passed its annual inspection, it had been inspected by other
personnel before and after Mr. Brunner's leaving the work site,
its regular operator found no safety violation upon his return
from vacation, and, finally in early June 1994 a surprise state
inspection of the vehicle as a consequence of Mr. Brunner's
complaint to the State resulted in a "clear bill of health" as
far as the alleged safety complaints were concerned.  The
concatenate effect of these facts supports only a finding that no
safety violations existed.  Thus, while Mr. Brunner's filing of
the inspection reports to the extent he did could constitute
"protected activity" as that term is used his refusal to operate
the vehicle further was not premised on an actual safety
violation.
[PAGE 4]
     Thus, the requirements aptly described by the parties for
the "when clause" are not satisfied.
     One must also consider the "because clause".  This facet of
the law  contemplates consideration of the reasonableness of a
driver's apprehension of serious injury to oneself or to the
public due to an unsafe condition.  The Brunner testimony clearly
establishes his articulated apprehension about the truck, but he
completely failed to explain how it was more dangerous to operate
the truck at the work site in comparison to driving it to the
site.  His action of driving it there is at least somewhat
inconsistent with his professed apprehension.  The law
contemplates protection for him to refuse to move the vehicle
from its abode, absent an intervening problem that he did not
assert.  Philip Dunn's testimony was that he drove the truck back
of the office under various road conditions and observed no
problem in operating the vehicle.  There is no refutation of this
testimony that is compatible with Respondent's other asserted
facts that the annual inspection had been passed, the "company"
inspections were satisfactory as well as Mr. Gahagan's, and
finally that the surprise state inspection failed to verify the
Complainant's concerns.  It is not my function to conjure up how
the use of the bucket to take down a tree or trees would cause
Mr. Brunner to be concerned about his safety or that of others.
     Other testimony in dispute involved the nature of
conversations between Mr. Brunner and the Dunns following May 3. 
It is settled that there was a conversation, that Brunner's
paycheck was turned over to him, and an agreement was reached
that he would be laid off in a manner to allow him to draw
unemployment compensation.  It is also established that the
invitation to return to employment for Dunn's was only for a
part-time position.  Mr. Brunner urges this as a retaliatory
offer because it was not a full-time offer and the employer says
that the work was slow so that only part-time employment was
available.  Mr. Brunner failed to refute that Mr. Gahagan was the
regular operator of the bucket truck and that his return from
vacation meant that Mr. Brunner would be assigned to other
duties.
     To support this proposition the Respondent refers to the
fact that Mr. Brunner was not replaced (no direct testimony to
support this), and Robert Dunn's unrefuted testimony that work
was slow.  Not only has Mr. Brunner failed to adduce probative
evidence on this point but the totality of the evidence support's
the Respondent's position as to lack of work.  The part-time 
[PAGE 5]
offer was not infected with a discriminatory motivation.
     Finally, there are some other observations respecting Mr.
Brunner's credibility that are relevant to record.  There is a
conflict in the testimony as to whether Mr. Brunner inspected the
bucket truck on the morning of May 3.  Philip Dunn's testimony
that remained intact in that it took 20 minutes to conduct an
inspection and that Mr. Brunner was not present long enough at
location of the business for that period of time to elapse before
he left for the campground.
     Secondly, as urged by the Respondent in its closing argument
Mr. Brunner shifted gears, as it were, about the extent of any
puddles from the alleged rear axle leak.  First, he indicated
that there was evidence of puddles and then on rebuttal he
asserted that the leak was absorbed by the brake shoes as
compared with TR 136 (TR 295).
     There are other conflicts in the record such as the validity
of some of the driver inspection reports.  Even if they were
"creatively" produced, the fact remains that the company knew of
Mr. Brunner's safety concerns and investigated them.  His
credibility was brought into severe question by other evidence in
addition to mileage discrepancies and changes and differences in
the preparation of the inspection forms.
     It is worthy of note that on rebuttal Mr. Brunner did not
challenge Robert Dunn's testimonial description of allowing Mr.
Brunner not to operate the bucket at the campground location
(page 182 of hearing testimony versus pages 292-295).  Even if
Mr. Brunner in good faith thought there were problems with the
bucket truck the record fails to show that any discriminatory
action was taken against him for having that belief.
                       RECOMMENDATION
     I recommend that the Secretary of Labor
DISMISS the complaint filed by Mark Brunner.

                                    Ainsworth H. Brown
                                   Administrative Law Judge