when the employee reasonably believes it would result in serious injury to himself or others.

    On June 29, 1994, the Complainant filed a complaint with the Secretary of Labor alleging that the Respondent had discriminated against him in violation of Section 405(a) of the Act.

    Complainant was terminated by the Respondent on October 4, 1994.

    Mr. Logan states that

In every instance since December 1993, the Complainant was made to feel as though he had to defend himself, his reactions, and his job performance. The work environment was made to be offensive and a place where he felt estranged, intimidated, threatened, and singled out for abuse.

The Respondent did discriminate in a willful and malicious manner to reprimand and wrongfully apply standards that were of a personal nature by Respondent's agents to try and hold Complainant to a higher and stricter standard than other commercial drivers at the same location.

    The Complainant argues that

To be subjected to a higher disciplinary code than anyone else by one's manager because of your race is inexcusable! Then to be threatened with losing your job if you don't jeopardize your life and the life of others if you don't take a vehicle out on its scheduled route then to be continually harassed and intimidated, after having told your supervisor that because of your state of mind and the undue stress placed on you by them that you couldn't safely operate a commercial vehicle, but they still keep threatening, harassing, and intimidating you until you do what they tell you to regardless of the possible consequences to yourself or to others! This type of behavior is not conducive to a healthy work environment! The Complainant has at no time been insolent or hostile to the Respondent unless he was provoked, felt threatened, or treated in a demeaning fashion!

    The Respondent states that

The Complainant seeks to use a baseless theory of protected activity to secure immunity from discharge for disruptive, threatening, racist and insubordinate conduct in the workplace. The evidence establishes that Complainant engaged in no protected activity, and Respondent in no way violated the STAA.

Complainant's claim is premised upon numerous arguments with no rational basis under the facts or the law. Mr. Logan claims that he could take himself "out of service" at his pleasure -- that he can "get mad and go home" when he perceives a "miscarriage of justice" over how his boss provides him with a requested pair of uniform pants. Complainant seeks to transform his baseless perceptions of race discrimination into a totally groundless STAA claim. All arguments by Complainant fail as a matter of fact, logic and law.

    Respondent argues that the

Complainant has the burden of proving that Respondent violated the STAA when it discharged him. Castle Coal & Oil Co., v. Reich, 55 F.3d 41, 45 (2d Cir. 1995). Thus, in order to prevail, Complainant must prove the following elements of his case: (1) that he refused to operate a vehicle because he believed "the operation [would have] violate[d] a regulation, standard or order of the United States related to commercial motor vehicle safety or health"; (2) that the operation of the vehicle actually would have "violate[d] a regulation, standard or order of the United States related to commercial motor vehicle safety or health"; and (3) that he was discharged for such a refusal to operate a vehicle. Complainant fails to establish any of these elements.

    The following discourse begins at page 84 of the hearing transcript.

JUDGE MALAMPHY: Mr. Logan, let me ask you some basic questions pertaining to the Act. You don't have any complaints about being required to work too many hours?

MR. LOGAN: Oh no, sir.

JUDGE MALAMPHY: Working more than 10 hours at a stretch, or 15 hours during a 24-hour period --

MR. LOGAN: No, sir.

JUDGE MALAMPHY: -- anything like that?

MR. LOGAN: No, sir.

JUDGE MALAMPHY: Any problems with the safety of the vehicle itself?

MR. LOGAN: At one time, UPS did send me out in a red tag vehicle. Carbon monoxide. It affected me tremendously. That was during this time period also when I had returned to work. I told them I didn't want to do it, but they say other drivers had done it, and I took it on out. It was only a mile, but it was still on a city, state or federal -- federal street. And when a vehicle is red tag and have a mechanical problem, it's not supposed to be driven.

JUDGE MALAMPHY: But your complaint does not involve that.

MR. LOGAN: No, it did not involve that.

JUDGE MALAMPHY: Anything else, Mr. Logan?

MR. LOGAN: Yes, sir, just my complaint involves forcing me to take a commercial vehicle out on the street in an unsafe condition for myself, a danger to myself, falsifying DOT -- well --

JUDGE MALAMPHY: You're saying you were not fit to drive the vehicle; is that what you're saying?

MR. LOGAN: No, sir, I was not fit to drive the vehicle.

JUDGE MALAMPHY: You're agreeing with what I said.

MR. LOGAN: Yes, sir. I was in -- I couldn't drive the vehicle. I wasn't in my right mind at the time. The state of mind I was in, I -- it was unsafe to myself and the public. And I had already had -- I had already had an accident because of a physical injury from United Parcel Service. I had already had an accident, and yes, I was in an -- but anyway. So.

JUDGE MALAMPHY: You want to rest your case for now?

MR. LOGAN: Yeah, that's it. You know, I just wanted to present this, that's all, after two years (TR 84-86).

    The STAA deals with the safety of common carriers and the fitness of drivers who operate such vehicles. The STAA is not a proper forum for discussions of harassment, or discrimination of any kind.

    However, as Mr. Logan has alleged that he was not competent to drive on September 29, 1994, this incident and events through October 1994 will be discussed.

    A brief background in the case is as follows:

    1. Mr. Logan began working for UPS in September 1988.

    2. In June 1994, after OSHA relayed to the Respondent a concern about threats by the Complainant, the Respondent released the Complainant from duty, pending a psychological evaluation.

    3. The Complainant returned to duty -- on or about early September 1994.

    At the hearing, Logan indicated that the

Respondent issued uniforms which would be cleaned by the firm or by the driver at his convenience. He stated that by late September 1994 all of his pants were in the UPS laundry.

    On September 29, 1994, Logan told Terry Lofquest, the center manager, of this problem. (Logan acknowledged that he had had a much better relationship with the previous manager.)

   Lofquest teased Logan about the pants but did provide another pair. Logan testified

I said don't touch me, because he gave them to me hostile like. I said don't touch me. I was very upset. And that's when everything started happening. That's when everything started happening.

I pulled myself, pulled myself off duty. It was before 8:45. I could not work I was so upset. He mentions that in his letter. He mentions that that in his letter. He mentions that in his letter. I knew I couldn't take that vehicle out.

He went and got his union steward, and he said I want you to explain to Herman what's going on. Dave Shivers said, Herman, if you don't take that truck out, they're going to get you for abandonment of your job. I said fine, I'm going to take the work out. I was crying, upset, irate. I couldn't seem to think straight. He mentions that in his letter, in his statement.

I took the vehicle on out on the street. I had to stop about two or three times, wipe my eyes. Almost, almost running into the back of other vehicles.

I got down on Castle and Sixth Street, and I said -- I was going to the industrial park, an area called the industrial park, which was on my route, to deliver next day air; it had to be delivered before 10:30.

And I got to Lawrence Paper Company, and I

said I can't do it. I can't put my life in danger and somebody else's life in danger. I was driving a, a, a -- what they call a, a 1000, P-1000, that's one of those long trucks. This wasn't one of the short ones. Because I had a lot. My area was big and I picked up heavy stuff. I was driving a P-1000.

And I went to Lawrence Paper Company crying. I didn't want my customers to see me like that. And I got on the phone. They said, Herman, what's wrong man. I say, I can't do it, I can't work, man, I can't even think straight. Couldn't even see, crying so much.

But at the time, I -- you know, they say I'm going to send another driver with him, okay, to pick up the package car. I say fine. I was just crying and agreeing, yeah, it was okay.

But as soon as Terry Lofquest pulled in there and I looked at him, I was about two minutes from jumping on his rear end, and I said, nope, I don't want to lose my job. And I told him I -- I was crying and incoherent, and I told him, Terry, I'll find my own way back to the center. I told him that. I'll find my own way back to the center because I was going to have to sit in the same car with him, and I probably would have just took his neck (motioning with hands). I didn't -- they would -- I didn't want to resort to that. I'm not going to spend a day in jail for nobody, by me resulting to violence.

And so I told him I'd find my own way back to the center. I got one of the employees at Lawrence Paper Company, my employees (sic) took care of me. He said, Herman, I'll take

you on back, come on. And he took me on back to the center. And that on the -- whatever date it was, September 29th (TR 78-80).

    During questioning the following discourse occurred.

Q: The question, Mr. Logan, is whether your anger at Mr. Lofquest on September 29 caused you to believe that you might resort to violence.

A: It put me in a state of mind. It put me in a state of mind that made it unsafe for me. It made it unsafe not only for myself but also unsafe for the public by me being around him, driving a commercial vehicle.

Q: Well, of course Mr. Lofquest wasn't around when you were driving the commercial vehicle, was he?

A: But he made me get in it (TR 106).

Q: (In the early morning of September 29) In fact, you said to Mr. Lofquest, words to the request, "You white sucker, you can't do anything."

A: No. My words and my exact statement were -- was this, You white men, I use Anglo-Saxon because you are in a position of authority, me being the only black here, you feel that you can do anything that you want and have me not say anything or do anything. Meaning that I was going to continue to write my letters. I was going to continue to file my grievances and my complaints, and he -- because he used these disciplinary actions not to try and suppress me and control me, but to do what he wants to, I'm still going to speak my mind.

Q: So your testimony is, Mr. Logan, that you were so angry on September 29 that you won't ride with Mr. Lofquest, but all you're talking about doing is writing letters, all you're thinking about doing is writing letters:

A: That's all I've done (TR 108-109)

Q: I don't have any record indicating that, but from listening to your testimony, you went out and you drove the vehicle for a while, and then you stopped and called your union business agent, right?

A: Yes, sir, I called him.

Q: So it would be approximately 10:00 a.m. on September 29 when you called the union business agent, Mr. Moore?

A: Okay.

Q: And you told Mr. Moore at that point in time that you did not think that you could continue to drive the vehicle; is that right?

A: I told Mister -- I believe I informed Mr. Moore that I was continuing to be unstable and that driving that commercial vehicle was a danger to myself and also to the public, and I couldn't -- yes, I didn't want to continue to drive.

Q: So at about 10 o'clock on September 29 you told the union business agent that you thought continuing to drive that vehicle was danger to yourself and to the public. Is that right?

A: On or about that time, yes (TR 89).

    Terry Lofquest testified that he provided a pair of pants to Logan on September 29, 1994. By 8:55 a.m., all of the drivers had departed except Logan. A union steward, Dave Shivers, spoke to Logan who agreed to drive.

    About 10:15 a.m., Lofquest participated in a telephone conference in which Logan said

that he felt that he was unstable and it was unsafe for him to continue, and it was agreed upon at that time with Bill Moore (a union official), Greg Koehler (the north division

manager), and myself, and Herman, that I would bring another driver out there, get Herman off the car, and bring him back to the building.

Q: And did you and Mr. Koehler indicate that Mr. Logan should not drive anymore?

A: Yes, that was Greg's instructions.

Q: He was taken out of service at that point?

A: Yes.

Q: And there was an agreement that you and a driver would go and pick him up?

A: Yes.

Q: And what happened at that point?

A: Well, I got the driver and we went out to Lawrence Paper Company, and when we pulled up, Herman was sitting in the wheel well or step well of his package car, with his duffle bag at his feet.

We pulled up next to the package car. The driver was in the front seat with me. He got out and went to get in the back so that Herman could get in the front. And Herman walked over and looked in the car and said, if I got to ride with you, I'm not riding, and turned and went right back into the building. And I told the driver that rode out there with me, to go keep an eye on Herman, because he was crying and visibly shaking and upset.

And at that point, I went and parked my car and went into call Greg Koehler and tell him what was happening, and also about the same time I'm on the phone with Greg, the driver that I had with me come back in and said Herman had just left the building. And so I ended my conversation with Greg, and as I went outside, I saw Herman riding off in a vehicle with some employee from Lawrence Paper Company.

And so I immediately got into my car, went back to the building, and I got there about the same time they did, and at that point Herman went in, went upstairs, come back out and left without saying a word.

Q: Okay. Now Mr. Logan's anger about the pants, about actually you providing him with a pair of pants, have you ever been able to figure out why in your view he had such a reaction to that?

A: No.

Q: And did -- what would have happened if you had not had pants available for him that day?

A: Well, he did -- wouldn't have been able to work. He didn't have a proper uniform (TR 210-211).

    Gregory Koehler testified that in 1994 he was the north division manager and Mr. Lofquest's supervisor. Following the incident on September 29, Koehler issued a letter on the next day which directed Logan to provide a medical report (see RX 20). The Complainant submitted a report from Dr. Roosa, a psychologist (RX 21).

    Koehler met with Logan and others on October 4, 1994. Koehler stated that

during the hearing, he couldn't offer a satisfactory answer as the why (sic) that took place. And then we reviewed the fact that he had lashed out at other employees, threatened other employees at that point. He was disruptive to the whole workforce. As Terry said, that's kind of a small area right there, so everybody was looking and seeing and trying -- it was hard to run the business as well as deal with the disruptive actions that Herman's performing out there.

He failed to follow the directions, you know, that Terry gave him, as going to work. You know, he was off recording in his personal

recorder while being paid for on UPS time, which is not allowed.

So we reviewed all those events that took place that morning. And at the end of that meeting, we -- he -- Herman could give us no logical explanation for those, and a decision was -- I asked him what we should do, and he said, well, you've already made up your mind, you can terminate me, or do whatever you want. And the outcome was that we would terminate him, and we would set up a local hearing with the business agent.

Q: Did Mr. Logan make that comment that you just referred to, about you can terminate me?

A: He said, you've already made up your mind, you do whatever you want.

Q: Okay. And did Mr. Logan acknowledge that he had made the statement on the 29th, in the workplace, that his fellow employees had not seen anything yet?

A: Yes, he did (TR 318-319).

   Koehler testified that UPS decided to terminate Logan's employment as of October 4, 1994. During the union grievance procedure at the local level, UPS offered to reinstate Logan with a final warning -- automatic dismissal for a subsequent infraction. The Complainant did not accept this result. The grievance proceeded through the Mokan (Missouri/Kansas) panel and then the Joint Area Council (JAC) in Chicago. The discharge was upheld.

   It is clear that the Complainant did engage in protected activity when he asked to be relieved from driving on September 29, 1994. Mr. Logan was too upset to drive and the Respondent was aware of this Complaint. The "when" clause under the Act has been met as Logan was clearly too

distressed to drive on September 29.

    The Complainant was discharged several days after this incident. Therefore, I conclude that Logan has made a prima facie case of retaliatory discharge under the Act.

    The Respondent argues that Logan was not fired for his refusal to drive on September 29, but was discharged for his outrageously disruptive, threatening, insubordinate, and racist conduct on September 29, 1994.

    The record reflects that Logan was insubordinate with Lofquest on the morning in question, used a tape recorder on company time, and acted inappropriately towards UPS officials when Lofquest arrived with a relief driver.

    In addition, as of October 4, 1994, Koehler had noted that Logan had been disruptive and had made threats in the past, and could not explain his actions on September 29.

    Thus, I find that Respondent presented legitimate reasons for firing Complainant that were not safety related, and that Respondent met its burden of establishing by a preponderance of the evidence that it would have fired Complainant absent his protected activities. (See Harris v. Apaca Van Lines, Case No. 91 STA 39, Sec. Dec. August 31, 1992)

    On the basis of the foregoing, I recommend that the complaint filed by Herman Logan be DISMISSED.

SO ORDERED

RICHARD K. MALAMPHY

Administrative Law Judge

RKM/ccb/lfrl
Newport News, Virginia

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