DATE ISSUED:  December 13, 1995

CASE NO.: 95-STA-30

In the Matter of:

RUSSELL A. PALINKAS
     Complainant

v.

UNITED PARCEL SERVICE
     Respondent

Appearances:

Russell A. Palinkas
     Pro Se

William Michael Hanna, Esq.
     For the Respondent

Before:   DANIEL L. LELAND, Administrative Law Judge

                     RECOMMENDED DECISION AND ORDER

     This case arises from a complaint filed by Russell A.
Palinkas (complainant) against his employer, United Parcel
Service (respondent) on or about October 5, 1994, alleging that
respondent had discriminated against him in violation of Section
405(b) of the Surface Transportation Assistance Act of 1982
(STAA), 49 U.S.C. §2305(b).  The complaint was referred to
the Regional Administrator, United States Department of Labor,
Occupational Safety and Health Administration, who on April 21,
1995, determined that the complaint did not have merit. 
Complainant requested a hearing and a hearing was held before the
undersigned on July 27, 1995 in Cleveland, Ohio.  The record was
held open for the deposition of Wes Porozynski, which was
submitted on September 11, 1995.  Both parties filed briefs.

                         Summary of the Evidence

     Complainant has been employed for respondent as a tractor-
trailer driver since 1985 and is assigned to respondent's
Middleburg Heights, Ohio facility.  TR 16.  Since 1988 he has
been driving a regular route but is subject to being bumped from
his route by drivers with more seniority.  TR 16, 20. 
Complainant's normal shift is from 2:30 p.m. to 11:30 p.m. TR 17.

[PAGE 2]
About 8:30 p.m. on September 24, 1995 after completing a portion
of his run, complainant returned to the Middleburg Heights
facility for lunch and went to the dispatch office where he was
told by Henry Najmulski, an administrative assistant in the
dispatch office, that he had been bumped from his run.  TR 20,
22, 104.[1]   Complainant asked Najmulski which runs were
available and Najmulski told him that he did not have that
information and that he would have to talk to Wes Porozynski, who
was the dispatch coordinator.  TR 104.  Complainant told
Porozynski that he needed a list of the available runs, and
Porozynski, somewhat reluctantly, made copies of the runs. 
Deposition of Wes Porozynski at 7-8.  Complainant testified that
Porozynski was acting "very unprofessionally", dancing around,
wiggling his hips, and making hand motions, although Porozynski
denied making such gestures.  TR 19, Porozynski Deposition at 89.
After reviewing the schedules, complainant determined that they
did not contain the starting times, and Kevin Wisor, a local
dispatcher, wrote out the starting times for complainant.  TR 23,
Porozynski deposition at 9. While complainant was examining the
scheduled runs, Porozynski told him he should resume his duties
and look at the runs on his own time.  TR 24.  Complainant states
that Porozynski yelled at him but Porozynski testified that he
spoke in a normal tone of voice.  Porozynski deposition at 13-14. 
Najmulski corroborated Porozynski's testimony that he did not
speak above a normal tone nor dance around and wiggle his hips. 
TR 106.  Wisor also failed to hear any yelling or observe any
unusual gestures by Porozynski.  TR 122, 124.  Neither Najmulski
nor Wisor saw any indication that complainant was upset after his
conversation with Porozynski.  TR 106, 123.
     Complainant then returned to the parking area, hooked up the
trailer to his tractor, and began his pre-trip procedure.  TR 25-
26. He intended to finish his run but he decided that he was too
upset to drive.  TR 26-27.  He returned to the dispatch area,
punched out, and told Porozynski that he was very upset at the
way he had been spoken to, and that he was going home.  TR 27-28. 
Before leaving the area, complainant stopped at the guard office
to call dispatch and tell them where his tractor was located.  TR
29-30.  Complainant drove home in his girlfriend's car but he
felt nervous all the way to his residence.  TR 28.  The following
week complainant was told by the respondent's manager that he had
been discharged for abandoning his equipment.  TR 32. 
Complainant filed a grievance through his union and an
arbitration panel later agreed to reduce complainant's penalty to
a ten-day suspension.  TR 35-36.

                            Conclusions of Law

     Section 405(b) of the STAA prohibits discrimination against
an employees for "refusing to operate a vehicle when such 
[PAGE 3]
operation constitutes a violation of any Federal commercial motor
vehicle regulation (the "When" clause of the Act), or "because of
the employee's reasonable apprehension of serious injury to
himself or the public due to the unsafe condition" of a vehicle
(the "because" clause).  Yellow Freight Systems, Inc. v.
Reich, 38 F.3d 76, 77, f.n. 1 (2nd Cir. 1994).  Complainant
alleges that by suspending him when he was too upset to drive his
tractor-trailer, respondent was in violation of §392.3 of
the Federal Motor Carrier Safety Regulations, 49 CFR §392.3,
which provides that "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, through fatigue, or illness, or any other cause, as to
make it unsafe for him to begin or continue to operate the motor
vehicle." The Secretary has held that an employee's refusal to
drive based on illness or physical condition may constitute
protected conduct under both the "when" clause and the "because"
clause of Section 405(b).  Self v. Carolina Freight Carriers
Corp., Case No. 89-STA-9, Sec. Final Dec. and Order, Jan. 12,
1990.  In order to establish a protected refusal under the
"because" clause, the unsafe condition must be of such nature
that a reasonable person, under the circumstances then
confronting the employee, would conclude that there is a bona
fide danger of an accident, injury, or serious impairment of
health resulting from the condition.  In complaints under the
"when" clause, the employee must prove that his ability or
alertness was so impaired as to make vehicle operation unsafe.
Smith v. Specialized Transportation Services, Case No. 91-
STA-22, Sec. Final Dec. and Order, April 30, 1992.
     To establish a prima facie case of retaliatory discharge, a
complainant must prove (1) that he engaged in protected activity
under the STAA, (2) that he was the subject of adverse employment
action, and (3) that there was a causal link between the
protected activity and the adverse action of his employer. 
Moon v. Transport Drivers, Inc., 836 F. 2d 226, 229 (6th
Cir. 1987).  Although complainant asserts that he was too "upset"
to drive after his conversation with Porozynski on September 24,
his assertion is completely unsubstantiated.  The testimony of
Porozynski, Najmulski, and Wisor, which I find to be more
credible than complainant's testimony, indicates that Porozynski
spoke to complainant in a normal tone of voice and made no
inappropriate gestures, and that complainant did not appear to be
particularly upset.  Even if I were to credit complainant's
version of the conversation and his statement that he was very
upset, his allegation that his emotional state would have
prevented him from driving his vehicle in a safe manner is not
corroborated by the evidence.  Despite being "upset", complainant

[PAGE 4]
drove home in his girlfriend's car, rather than asking one of his
fellow employees or a friend to drive him home or calling a taxi. 
While I recognize that driving an automobile is less taxing than
driving a truck, someone who was truly distraught would not have
driven any vehicle.  Furthermore, complainant did not take any
medication or consult a physician because of his reported
distress.  The evidence instead indicates that complainant was
angry because of Porozynski's rebuke about not examining the
schedules on his own time, and simply decided he was not going to
complete his run.  There is no evidence that his state of mind
made operation of his tractor-trailer unsafe or created a risk of
an accident.
     As complainant has failed to prove that he engaged in
protected activity, he has failed to establish a prima facie case
and his complaint will be dismissed.


                             RECOMMENDED ORDER

     IT IS ORDERED that the complaint of Russell A. Palinkas is
DISMISSED.

DANIEL L. LELAND
Administrative Law Judge

NOTICE:     This Recommended Decision and order and the
administrative file in this matter will be forwarded for review
by the Secretary of Labor to the Office of Administrative
Appeals, U. S. Department of Labor, Room S-4309, Frances Perkins
Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210. 
The Office of Administrative Appeals has the responsibility to
advise and assist the Secretary in the preparation and issuance
of final decisions in employee protection cases adjudicated under
the regulations at 29 CFR Parts 24 and 1978.  See 55 Fed.
Reg. 13250 (1990).



                               [ENDNOTES]

[1] This change would not take effect until complainant
returned from his vacation in two weeks.  TR 21.