DATE:  April 19, 1994
CASE NO. 94-STA-1


IN THE MATTER OF

LESZEK VOGT,

          COMPLAINANT,

     v.

ATLAS TOURS, LTD.,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                       DECISION AND ORDER OF REMAND

     Before me for review is the Recommended Decision and Order
(R.D. and 0.) issued by the Administrative Law Judge (ALJ) on
December 29, 1993, in this complaint arising under Section 405,
the employee protection provision, of the Surface Transportation
Assistance Act of 1982, 49 U.S.C. app. § 2305 (1988) (STAA). 
The ALJ recommended granting the motion to dismiss of Respondent
Atlas Tours, Ltd. (Atlas).
     Although permitted by 29 C.F.R. § 1978.109(c)(2), the
parties have not filed briefs before me.  In reaching this
decision, I have considered the entire record before the ALJ.
     It is undisputed that Vogt was discharged for refusing a
dispatch.  Atlas argues that Vogt did not allege that he was
discharged for refusing to drive when it would constitute "a
violation of any Federal rules, regulations, standards, or orders
applicable to commercial motor vehicle safety or health" [the
STAA's "when clause"] or "because of a reasonable apprehension of
serious injury . . . due to the unsafe condition" of motor
vehicle equipment [the "because clause].  See 49 U.S.C.
app. § 2305(b); Motion to Dismiss at 3.  Relying upon Fed.
R. Civ.  P. 12, Atlas moved to dismiss for lack of subject matter
jurisdiction.
[PAGE 2]
     In view of the lack of a hearing in this matter, I must rely
upon the complaint and the parties, other written statements in
the record to determine if Vogt stated a complaint within the
jurisdiction of the Department of Labor under the STAA.  I will
not hold this pro se complainant to the same standards for
pleadings as if he were represented by legal counsel.  See,
e.g., Helmstetter v. Pacific Gas & Electric Co., Case
No. 91-TSC-1, Dec. and Remand Order, Jan. 13, 1993, slip op. at 4; 
Doyle v. Bartlett Nuclear Services, Case No. 89-ERA-18, 
Dec. and Ord. of Dis., May 22, 1990, slip op. at 5 n.3, aff'd, 
949 F.2d 1161 (llth Cir. 1991).
     Vogt complained to a Department of Labor employee, who wrote
on a standard form:

          Mr. Vogt drove tour bus load of people and took them to
          Anchorage airport - finished at 1:30 a.m. - received
          call from manager requesting he take a group out to
          Palmer, AK at 7:30 a.m. (same day).  Mr. Vogt refused
          on the basis of not having 8 hour rest period. (He
          believes 8 hour rest is a DOT requirement.) He was
          fired that evening.

July 27, 1993, Report of Filing of Complaint, Occupational Safety
and Health Administration, U.S. Department of Labor.
     In construing the complaint liberally, I find that Vogt may
have complained about being dispatched to drive without having
had enough rest, which could be a way of stating that he was too
fatigued to take the dispatch.  The Secretary has held that an
employee's refusal to drive based on illness or physical
condition, including fatigue, may constitute protected conduct
under the STAA's "when" and "because" clauses.  Smith v.
Specialized Transportation Services, Case No. 91-STA-0022,
Final Dec. and Order, Apr. 30, 1992, slip op. at 3 and cases there
cited.
     Further, Vogt stated in his pro se hearing
request that:

          After being up for 18 hours (not all of it On
          duty or driving), the law appears to be blind
          . . . . 

          The law dictates that the "on duty" or
          "driving" can be stretched over an infinite
          period of time (in my situation it would have
[PAGE 3]
          been 31-33 hours).

September 25, 1993, letter from Vogt to James W. Lake.
     Based on the complaint and the hearing request, I find that
Vogt has stated a complaint that he was too fatigued to take the
7:30 a.m. dispatch, and was fired for that refusal.  Thus, he has
stated a complaint under both the "when" and "because" clauses
of the STAA. 1
_________
1/  Atlas argues (Motion p. 4) that in his answers to
interrogatories, Vogt has conceded his agreement with the finding
of the Regional Administrator of the occupational Safety and
Health Administration that:

               Mr. Vogt refused to operate his  vehicle  on
              July 21, 1993, when such operation  would  not
(continued...)

     I therefore find that it was not proper to dismiss the
complaint for lack of subject matter jurisdiction.  In reaching
this decision, I have not made any findings with respect to the
merits of Vogt's complaint.
     This case will be REMANDED to the ALJ for further
proceedings, including a hearing on the merits of the complaint.
     SO ORDERED.
                                        Robert B. Reich
                                        Secretary of Labor
Washington, D.C.




__________
     ... continued)
          have constituted a violation of the U.S. Department of
          Transportation Rules and Regulations concerning
          'maximum driving and on duty time." Consequently,
          respondent's discharge of Mr. Vogt for his engaging in
          activity protected under the STAA does not constitute a
          violation of Section 405(b) of the STAA.

The Regional Administrator apparently did not consider whether
Vogt's dismissal for refusing a dispatch violated the DOT
regulation concerning "ill or fatigued operator," 49 C.F.R. 
[PAGE 4]
392.3:

          No driver shall operate a motor vehicle, and a motor
          carrier shall not require or permit a driver to operate
          a motor vehicle, while the driver's ability or
          alertness is so impaired, or so likely to become
          impaired, through fatigue, illness, or any other cause,
          as to make it unsafe for him to begin or continue to
          operate the motor vehicle.