Date:  June 14, 1995
Case No.:  94-STA-14

In the Matter of:

WILBUR SCHULER,
     Complainant,

     v.

M & P CONTRACTING, INC.,
     Respondent.


DECISION AND ORDER UPON REMAND - DISMISSING COMPLAINT

     This case was remanded by the Secretary of Labor in a Decision
and Order of Remand dated December 15, 1994.  Wilbur Schuler
(Complainant) filed a complaint arising under the employee
protection provisions of the Surface Transportation Assistance Act
of 1982, 49 U.S.C. § 31105 (Act).  Complainant refused to
plead guilty to an overload citation and claimed that his
employment had been terminated due to his engagement in protected
activity.  Administrative Law Judge Bernard J. Gilday, Jr., in a
Decision and Order dated September 29, 1994, recommended that the
complaint be dismissed because Complainant did not engage in
protective activity when he refused to plead guilty to a state
citation for operating an overweight motor vehicle and because M &
P Contracting, Inc. (Respondent) was not a covered employer under
the Act because it was not engaged in interstate commerce.  

     The Secretary disagreed with the determination that Respondent
was not engaged in interstate commerce and decided that it was a
covered employer under the Act.  The Secretary also directed the
Administrative Law Judge to allow Complainant an additional
opportunity to demonstrate that his refusal to plead guilty to the
overload citation was based in part on safety concerns, thus
qualifying as protected activity.  This remanded case was then
assigned to the undersigned due to the retirement of Judge Gilday. 
On March 27, 1995, an Order was issued providing the parties the
opportunity to submit further evidence on this issue (Appendix).  
     After remand, Respondent filed objections to proceeding by 
[PAGE 2]
written submissions instead of holding a hearing on the record and
to the change in judge.  As previously indicated, Judge Gilday is
no longer available to decide this matter, and therefore, it was
reassigned to the undersigned.  In addition, another hearing in the
case is not necessary and will prejudice neither party, as the
issue was adequately explored in the original hearing.  
     As instructed by the Secretary, Complainant was granted the
opportunity to demonstrate that his refusal to plead guilty was
prompted by a safety concern.  However, Complainant has submitted
nothing, other than a signed statement that his refusal to plead
guilty was precipitated by a safety concern, which constitutes
evidence of this alleged provocation.  As Respondent has noted,
Complainant never raised the issue of a safety concern until made
aware of that requirement.  Previously, he repeatedly indicated
that he did not want to plead guilty because Respondent had a
contractual obligation to pay the fine[1]  and because he did not
want it to affect his driving record.  These reasons do not raise
a safety concern and therefore, do not qualify as protected
activity.  Claimant's mere expression, unsupported and contradicted
by the evidence of record, that a safety concern prompted his
refusal to plead guilty is insufficient to establish this requisite
intent. In addition, Complainant's recent submissions are largely
irrelevant, pertaining to matters unrelated to this claim or
containing statements which have no bearing on the issue at hand. 
There being no evidence to establish that Complainant engaged in
any protected activity by his refusal to plead guilty, it is hereby
     ORDERED that the complaint of Wilbur Schuler is dismissed.

                                   Julius A. Johnson
                                   Administrative Law Judge


NOTICE:  This 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 preparaton and issuance of final decisions in employee
protection cases adjudicated under the regulations at 29 C.F.R.
Parts 24 and 1978.  See 55 Fed. Reg. 13250 (1990).


[ENDNOTES]
              
[1] 
As recognized by the Arizona state judge who imposed this fine,
Complainant may very well be entitled to reimbursement from
Respondent for this expense due to a contractual arrangement.  This
potential entitlement does not, however, give rise to a claim under
the Act because it has no relation to protected activity.