DATE:  May 3, 1995
CASE NO. 94-STA-39


IN THE MATTER OF

ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH,
          PROSECUTING PARTY,

     and

GEORGE BEARD,
          COMPLAINANT,

     v.

APAR BROKERAGE,
          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR 

                         FINAL DECISION AND ORDER

     Complainant, George Beard, filed this complaint under the
employee protection provision of the Surface Transportation
Assistance Act of 1982 (STAA), 49 U.S.C.A. § 31105 (West
1994), alleging that Respondent fired him from his job as a
produce hauler in retaliation for conduct protected under the
STAA.
     It is undisputed that Respondent fired Beard on March 23,
1993, because Beard refused to drive Respondent's straight truck
#15.  Prosecutor's Exhibit 6.  Beard claims that his refusal was
protected because it was based on his perception that the cab of
truck #15 lacked sufficient legroom to be operated safely. 
Respondent counters that Beard's refusal to drive truck #15 was
related only to Beard's personal comfort, not safety concerns,
and that any safety concerns would have been unreasonable and
unprotected.  The STAA protects a refusal to drive which is based
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on the driver's objectively reasonable apprehension of serious
injury resulting from an unsafe condition.  49 U.S.C.A. 
§ 31105(a)(1)(B)(ii); Yellow Freight Sys., Inc. v.
Reich, 38 F.3d 76, 82 (2d Cir. 1994).
     After considering all the evidence presented, the
Administrative Law Judge (ALJ) issued a [Recommended] Decision
and Order (R.D. and O.) on January 26, 1995, dismissing the
complaint.  The ALJ found that although truck #15 was
uncomfortable for Beard, Beard did not reasonably fear an unsafe
condition and, therefore, Beard's refusal to drive the truck on
March 23 was not protected.  R.D. and O. at 5.
     The ALJ's finding that Beard's perception of an unsafe
condition was not objectively reasonable is supported by
substantial evidence on the record considered as a whole. 
Further, the ALJ's resulting legal conclusion is wholly
consistent with applicable law.  I, therefore, accept the
recommended decision.  29 C.F.R. § 1978.109(c)(3) (1994);
Yellow Freight Sys., Inc., 38 F.3d at 82; Bryant v. Bob
Evans Transp., Case No. 94-STA-24, Sec. Dec., Apr. 10, 1995,
slip op. at 10-11.
     Accordingly, this case IS DISMISSED. 
     SO ORDERED.

                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.