DATE:  July 12, 1995
CASE NO. 95-STA-7


IN THE MATTER OF:

DAVID W. WIGNALL,

          COMPLAINANT,

     v.

GOLDEN STATE CARRIERS, INC.,

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                            DECISION AND ORDER

     Complainant David W. Wignall (Wignall) alleges that
Respondent Golden State Carriers, Inc. (Golden State) violated
the employee protection provision of the Surface Transportation
Assistance Act of 1982 (STAA), 49 U.S.C.A. § 31105 (West
1994),  by discharging him for making internal safety related
complaints.  Golden State alleges that Wignall was discharged for
legitimate, nondiscriminatory reasons.  The findings of fact in
the Administrative Law Judge's (ALJ) Recommended Decision and
Order (R. D. and O.) are supported by substantial evidence on the
record as a whole and therefore are conclusive.  29 C.F.R. §
1978 (c) (3) (1983).  The ALJ recommended that the complaint be
dismissed.  R. D. and O. at 7.  The analysis of the ALJ's 
R. D. and O. is modified, as set out below, and the case is
dismissed.
     A hearing was held before the ALJ on April 13, 1995, and all
appropriate testimony and exhibits were received into evidence.
R. D. and O. at 1.  The ALJ weighed all the evidence and
concluded that Wignall did not present a prima facie case
of a violation of the employee protection provisions of the STAA. 

R. D. and O. at 5.  Since "this case was fully tried on the 
[PAGE 2]
merits," it is not necessary to engage in an analysis of the
elements of a prima facie case.  USPS Bd. of Governors
v. Aikens, 460 U.S. 711, 713 (1983);  Carroll v. Bechtel
Power Corp., Case No. 91-ERA-0046, Final Dec. and Order, Feb.
15, 1995, slip op. at 11 n. 9, petition for review docketed, No.
95-1729 (8th Cir. Mar. 27, 1995) (under the Energy Reorganization Act).
Once Golden State produced evidence that Wagnall was subjected to
adverse action for a legitimate, nondiscriminatory reason, the
answer to the question whether a prima facie case was
presented is no longer useful.  If Wignall has not prevailed by a
preponderance of the evidence on the ultimate question of
liability it matters not at all whether he presented a prima
facie case.[1] 
     In the alternative, the ALJ held that Wignall did not carry
his ultimate burden of proof to show that his discharge was
caused, even in part, by protected activity.  R. D. and O. 
at 6.  I agree with this conclusion.  Wignall was only discharged
after Golden State lost the USPS contract on which he had been
working.  Of the ten drivers who were hauling mail for Golden
State under the USPS contract, only two, the manager and his son,
remained with Golden State after the USPS contract was lost. 
Accordingly, it is hereby ORDERED that the complaint be
DISMISSED.
     SO ORDERED.

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


[ENDNOTES]
           
[1]   The ALJ's conclusion that Wignall did not present a
prima facie case was not only unneccesary, but also
innacurate.  The record shows that Wignall made "internal
complaints about safety-related problems and that he frequently
confronted USPS [United States Postal Service] employees [Golden
State's main customer] about alleged safety deficiencies in USPS
equipment." R. D. and O. at 6.  The written complaints filed by
Wignall were described by Golden State's manager as being "like
an encyclopedia."  R. D. and O. at 3.  I find that Wignall's
uncontradicted allegation of  a virtually continuous series of
complaints to Golden State and the USPS, estimated at over 100
complaints total in less than two years of employment,
id., was sufficient to raise an inference of causation.