DATE:  December 29, 1993

Case No.  94-STA-1   

In the Matter of

LESZEK VOGT, 
         Complainant
vs.

ATLAS TOURS, LTD.,
         Respondent

 
              RECOMMENDED DECISION AND ORDER
                  (Granting Motion for Summary Dismissal)

     This matter has not gone to trial.  A trial was scheduled for
December 1993, but on November 23, 1993 I issued a Notice of
Continuance which set forth the procedural history of this matter
to that date.  That notice also authorized Atlas Tours to submit
one set of interrogatories to Mr. Vogt.  Copies of the
interrogatories and answers were to be filed with me.  The last
sentence of the Notice read:

          Upon receipt of these documents, and any other
          motions or requests that may be made, the
          undersigned will again set this matter for
          hearing in San Francisco, probably during the
          week of January 3, 1994, or take other
          appropriate action.

     Since then the following has transpired:

     On December 2 a copy of Atlas' interrogatories to Mr. Vogt
were received.  On December 17 Atlas' Motion to Dismiss for Lack of
Jurisdiction and Motion to Continue Hearing was received.  On
December 22 a letter from Mr. Vogt was received explaining the
delay in his not answering the interrogatories within ten days.  On
December 27 Mr. Vogt's answers to interrogatories was received.  
     I have concluded that Atlas's Motion to Dismiss must be
granted for the following reasons.
[PAGE 2]
     The statute which gives this forum jurisdiction provides in
part:

          No person shall discharge, discipline, or in
          any manner discriminate against an employee
          with respect to the employee's compensation,
          terms, condition, or privileges of employment
          for refusing to operate a vehicle when such
          operation constitutes a violation of any
          Federal rules, regulations, standards, or
          orders applicable to commercial motor vehicle
          safety or health, or because of the employee's
          reasonable apprehension of serious injury to
          himself or the public due to the unsafe
          condition of such equipment.  [49 USCA (App.)
          §2305(b)]

     It appears from this language that, insofar as applicable
here, complainant must allege that: (1) he was fired for refusing
to operate a vehicle when such operation would have constituted a
violation of a federal requirement, or (2) he was fired for
refusing to drive equipment because of a reasonable apprehension of
serious injury to himself or the public due to the unsafe condition
of such equipment.  
     Refusing to operate a vehicle when such operation would 
     have constituted a violation of a federal requirement.
     In his letter of September 25, 1993 to Beverly Queen, Chief
Docket Clerk of the Office of Administrative Law Judges,
complainant states: 

          In my interpretation of the law, my ex-
          employer Atlas Tours have not violated
          Department of Transportation Regulations (in
          the technical sense of the law); however I
          wish to focus on several points where an
          intent to violate the law is evident,
          furthermore the law itself is being
          questioned.

     It is elementary and fundamental that an administrative law
judge has no authority to rule upon the wisdom of the law or any
regulation.  Mr. Vogt has written to Senator Feinstein, which is an
appropriate way to question the law.  Since complainant has thus
admitted that respondent has not technically violated any federal
regulation this point does not support a ruling in complainant's 
[PAGE 3]
favor.  
     Furthermore, James W. Lake, Regional Administrator,
Occupational Safety & Health Administration, in his ruling dated
August 25, 1993 (the copy seems to be dated 08/25/90, but it was
obviously executed in 1993, not 1990) agrees that had Mr. Vogt
operated his vehicle as instructed on July 21, 1993, this would not
have constituted a violation of DOT (Dept. of Transportation) rules
and regulations concerning maximum driving and on duty time.     
     The interrogatories asked complainant to fully and clearly
state any grounds of his claim not covered in the letter to Beverly
Queen.  The only other possible illegality mentioned in the answers
is the assertion that Mr. Vogt was required to drive in Canada,
when he was only authorized to drive in Alaska.  
     This assertion does not bear upon "commercial motor vehicle
safety or health," and therefore offers complainant no support.
     Refusing to drive equipment because of a reasonable 
     apprehension of serious injury to himself or the 
     public due to the unsafe condition of such equipment.
     Interrogatory 6(d) asked: "Does your complaint have anything
to do with the condition of the Atlas Vehicle you were requested to
drive at the time you were terminated?"  Mr. Vogt's response was:
"NO."
     This answer disposes of the second ground upon which this
proceeding might have been founded.
     Therefore, it is recommended that the complaint of Leszek Vogt
against Atlas Tours, Ltd. be dismissed.

                                       Thomas Schneider
                                        Administrative Law Judge