DATE: March 5, 1996
CASE NO.  94-STA-52

IN THE MATTER OF

MICHAEL K. CLEARY,
          COMPLAINANT,

     v.

FLINT INK, CORP.,
          RESPONDENT.


BEFORE: THE SECRETARY OF LABOR


      FINAL DECISION AND ORDER

     Before me for review is the Recommended Decision and Order
(R. D. and O.) issued on November 6, 1995 by the Administrative
Law Judge (ALJ) in this case arising under the employee
protection provision of the Surface Transportation Assistance Act
of 1982 (STAA), 49 U.S.C.A. § 31105 (West 1994). 
Complainant Michael K. Cleary (Cleary) alleges that Respondent
Flint Ink Corporation (Flint) wrongfully discharged him for
refusing to accept an assignment involving the operation of a
vehicle during what Cleary perceived as a hazardous snow storm. 
After a review of the entire record I accept the recommended
decision of the ALJ and dismiss this complaint.  
BACKGROUND
     Cleary was hired by Flint in 1979 as a commercial motor
vehicle operator.  Before his tenure at Flint he had been
employed in a similar capacity at other corporations.  T. 17,
63-64.   At some point in time before February 8, 1994, he was
pre-scheduled to drive from New Jersey at midnight on 
February 9[1]  to Pittsburgh, Pennsylvania.  On the morning of 
[PAGE 2]
February 8, Cleary looked out of his window and observed the
beginnings of a snowstorm.  He testified that he saw a televised
weather report "predicting heavier snow coming into Pittsburgh
and it was snowing at the time in Pittsburgh."  T. 24.  
     On February 8, 1994 at approximately 8:15 a.m., Cleary
telephoned Donald Witt (Witt), his supervisor and Flint's Plant
Manager, and asked to have his run postponed.  T. 25.  Cleary's
testimony indicates that he based his decision partially on the
fact that he was scheduled to carry 2500 gallons of ink in a
truck with a capacity of 6000 gallons.  Because the container
would not be near capacity, its contents could easily shift
during transport and create what Cleary refers to as a "sloshing
effect."  T. 25-26, 56-57.  
     Witt told Cleary that the delivery could not be delayed and
suggested that Cleary switch assignments with another driver. 
Unable to switch assignments, Cleary again contacted Witt,
whereupon Witt gave Cleary the option to leave immediately. 
Cleary refused to leave immediately and reiterated his refusal to
leave at midnight.  Witt then telephoned Glenn Autrey, Flint's
Vice President of Human Resources, and called Cleary at 11:30
a.m. to inform him that he had been fired.  T. 23-30.  That same
day, another driver completed the run without incident. 
DISCUSSION
     Under the "refusal to drive" provision of the STAA, an
employer may not discharge an employee because:
     (B) the employee refuses to operate a vehicle because--
          (I) the operation violates a regulation, standard,
     or order of the United States related to commercial
     motor vehicle safety or health; or
          (ii) the employee has a reasonable apprehension of
     serious injury to the employee or the public because of
     the vehicle's unsafe condition.

49 U.S.C.A. § 31105(a)(1)(B) (West 1994).  The STAA defines
the test for protection of a refusal to drive under the
"reasonable apprehension" provision of subsection (ii) as
follows:
     [A]n employee's apprehension of serious injury is
     reasonable only if a reasonable individual in the
     circumstances then confronting the employee would
     conclude that the unsafe condition establishes a real
     danger of accident, injury, or serious impairment to
     health.  To qualify for protection, the employee must
     have sought from the employer, and been unable to
     obtain, correction of the unsafe condition.  
 
49 U.S.C.A. § 31105(a)(2).
     A driver can refuse to drive based on a reasonable belief 
[PAGE 3]
that observed snowfall will create a hazardous situation.  In
Robinson v. Duff Truck Line, Inc., Case No. 86-STA-3,
Final Dec. and Ord., Mar. 6, 1987, aff'd sub nom. Duff Truck
Line, Inc. v. Brock, No. 87-3324 (6th Cir. June 24, 1988), I
held that an employer violated the STAA when it fired an employee
for refusing to drive after observing freezing rain and snow. 
However, in that case, the employee's refusal to drive was
communicated to his employer within three hours of his scheduled
run.  Given the evidence presented and the changing nature of the
weather it was not reasonable to assume that the roads would be
unnavigable sixteen hours after his decision not to drive. 
Cleary should have waited until later in the day to observe the
progress of the storm and make his decision based upon the most
recent information available.   
     Witt gave Cleary the opportunity to commence his run earlier
than scheduled or wait until midnight.  Cleary refused both
options.  Also, if Cleary's argument is that the sloshing effect
of the ink, in conjunction with the weather, created an unsafe
condition, he cannot prevail because he never attempted to have
Flint alter the load he was to carry.  49 U.S.C.A. §
31105(a)(2) (employee must seek correction of the unsafe
condition).  I conclude that Cleary has not shown that he engaged
in conduct protected under the STAA.
     Accordingly, the complaint IS DISMISSED.
     SO ORDERED.

                              ROBERT B. REICH                    
                              Secretary of Labor
Washington, D.C.

[ENDNOTES]
           
[1]   The R. D. and O. identifies the assignment at issue in this
case as being pre-scheduled to commence at 12:00 a.m. on Tuesday,
February 8.  However, the record indicates that the run would
have commenced 12:00 a.m. on Wednesday, February 9.  T. 275.