DATE: January 27, 1992
CASE NO. 91-STA-10

IN THE MATTER OF

PERRY MACE,

          COMPLAINANT,

     v.

ONA DELIVERY SYSTEMS, INC.,

          RESPONDENT.


BEFORE: THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     Before me for review is the [Recommended] Decision and Order
(R.D. and O.) issued on September 30, 1991, by the Administrative
Law Judge (ALJ) in the captioned case, which arises under the
employee protection provision of the Surface Transportation
Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1988).
Complainant Perry Mace alleges that he was discharged by
Respondent ONA Delivery Systems, Inc., because he engaged in
statutorily-protected activity, i.e., complaining about
operating and refusing to operate an unsafe vehicle when ill. 
The ALJ has recommended that Complainant's claim be denied.  I
agree.
     Respondent operates a courier service in Columbia, Missouri.
Complainant was hired by Respondent in June 1990 to pick up and
deliver contract shipments.  On Friday, August 10, 1990,
Complainant was scheduled to drive his regular Friday evening
route from Columbia to St. Louis, Missouri, and return.  Prior to
departure, however, Respondent directed him first to drive to
residences in Columbia and Jefferson City, Missouri, to deliver
misplaced luggage to airline passengers before continuing to
St. Louis to make his regularly scheduled pickup and delivery.
Complainant testified that en route to Jefferson City the turn

[PAGE 2]
signals and left tail light on his assigned, company-owned
automobile failed to function.  The vehicle also idled roughly
and began stalling when stopped at intersections.  Upon arriving
in Jefferson City, Complainant was unable to locate the
passengers' residence.  He repeatedly telephoned Respondent for
instructions during his search.  Complainant testified:
          [T]he car is dying at stop signs, I'm holding
          up people behind me, a lot of times people
          couldn't see my hand signals out the window,
          there is no tail light . . . .  I was
          frustrated because I couldn't find this
          place.  I got a headache, you know, started
          getting a headache from all of this. . . .  I
          still had like five hours to go in this car
          on this assignment.  At that time I called
          ONA and said you know, under these conditions
          I feel that it is unwise for me to continue,
          the car is not operating right, the blinkers
          don't work, the tail light is out . . . it's
          very unsafe, I'm causing traffic to be backed
          up, I think it would be dangerous for me to 
          . . . continue the rest of my route.

Hearing Transcript (T.) 21-22.  Respondent's president responded
that if Complainant refused to continue to St. Louis, he could
"just come on back and turn all [his] things in."  T. 22.
Complainant testified that he rejoined "well by golly, that's
what I'll do."  Id.  Respondent thereafter replaced
Complainant with a newly-hired driver.

     Respondent disputes Complainant's account.  In particular,
witnesses who drove the vehicle in question on August 10 and 12,
1990, testified that the turn signals were operational, that the
vehicle did not stall on the afternoon of August 10, and that
although the vehicle would not idle on August 12, the driver
successfully completed his route by using the parking gear at
stop lights.  T. 73-76, 116-117.  Respondent's president, Silas
Atagana, and corporate secretary, Cindy Christal, testified that
on the evening of August 10, Complainant never complained about
vehicle safety defects.  Instead, he resented being assigned the
additional Jefferson City delivery and expressed frustration at
being unable to locate the delivery address.  T. 52-53, 90-96,
110, 125-126, 132-133.  President Atagana testified:
          I said you understand that if you don't pick
          these packages up we are going to lose the
          account . . . .  He said yes that he
          understood it but . . . he wasn't going to go
          
[PAGE 3]
     tonight but he'll go in the morning.  I said that was too
     late, that there was no way we could afford that . . . . 
     [H]e still said that he wasn't going to go, that he would
     rather go in the morning and I said that wouldn't work. . .
     .  At no time did he say anything about the vehicle.  The
     only thing he said was . . . that he felt like [expletive
     deleted].

T. 125-126.  Atagana also testified that had Complainant
complained about vehicle safety defects, they "would have met
[Complainant] at Kingdom City . . . to switch vehicles because
[Complainant was] already so far behind."  T. 132-133.
     In his R.D. and O., the ALJ found that Complainant's claim
should be denied because it was not covered under the STAA.  This
defense was not raised below, however, and the record is not
developed on the issue.  STAA Section 2305 prohibits employment
discrimination against any employee because he has engaged in
protected activity.  An "employee" is a driver of a commercial
motor vehicle, a mechanic, a freight handler, or any individual
other than an employer who is employed by a commercial motor
carrier and who directly affects commercial motor vehicle safety
in the course of his employment.  49 U.S.C. app. § 2301(2).
While Complainant may not have driven commercial motor vehicles
as defined under STAA Section 2301(1),[1]  he may have
constituted an individual other than an employer employed by a
motor carrier and affecting motor vehicle safety, depending on
his employment duties.  See Rehling v. Sandel Glass
Co., Case No. 91-STA-33, Sec. Remand Dec., Jan. 6, 1992, slip
op. at 7-8.  The issue having been raised belatedly, Complainant
arguably should be permitted an opportunity to establish
coverage.  (I note that in investigating Complainant's complaint,
the Assistant Secretary for Occupational Safety and Health found
Complainant and Respondent to be covered under the STAA and that
Respondent did not dispute this finding.)  I find this course
inappropriate, however, since Complainant cannot prevail on the
merits of his claim.
     Under the burdens of proof in STAA proceedings, Complainant
must show that he engaged in protected activity, that he was
subjected to adverse action, and that Respondent was aware of the
protected activity when it took the adverse action.  Complainant
also must present evidence sufficient to raise the inference that
the protected activity was the likely reason for the adverse
action.  An employee is protected if he "has filed any complaint
or instituted or caused to be instituted any proceeding relating
to a violation of a commercial motor vehicle safety rule,
regulation, standard, or order . . . ."  49 U.S.C. §
2305(a).  See Davis v. H.R. Hill, Inc., Case No.
86-STA-18, Sec. Dec., Mar. 18, 1987, slip op. at 3-4 (both
internal and external safety 
[PAGE 4]
complaints protected).  Cf. Bivens v. Louisiana Power
and Light, Case No. 89-ERA-30, Sec. Remand Dec., June 4,
1991, slip op. at 4-5 (citing cases) (internal safety complaints
to employer protected under environmental whistleblower laws).
     Section 2305(b) of the STAA also prohibits discriminatory
treatment of employees in either of two "work refusal"
circumstances.  First, an employee may not be disciplined 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 . . . ."
("When" clause.)  Second, discipline is prohibited for refusing
to operate a vehicle "because of the employee's reasonable
apprehension of serious injury to himself or the public due to
the unsafe condition of such equipment."  ("Because" clause.)
This second ground for refusal carries the further requirement
that the unsafe condition causing the employee's apprehension of
injury must be such that a reasonable person, under the
circumstances, would perceive a bona fide hazard.  Finally
Section 2305(b) stipulates that "the employee must have sought
from his employer, and have been unable to obtain, correction of
the unsafe condition."
     Here, the ALJ found that Complainant did not complain about
any vehicle safety defects.  R.D. and O. at 3, 6.  This finding
is supported by substantial evidence in the record considered as
a whole, and I adopt it.  29 C.F.R. § 1978.109(c)(3) (1991).
Rather, Complainant had reported to work expecting to perform his
regular, abbreviated Friday night route between Columbia and
St. Louis, Missouri.  Respondent's Corporate Secretary Christal,
who spoke to Complainant on several occasions that evening,
testified that Complainant considered it "unfair that he had been
go to Jefferson City, he was very resentful of that."  T. 91.
Complainant related "that he was very frustrated, that if we
expected him to go to Jefferson City then we shouldn't expect him
to go to St. Louis in the same night, and that he was coming
back."  T. 95 (Christal).  A salaried employee, Complainant would
have received no additional compensation for the increased hours
worked.  T. 88-89.  Complainant returned to Columbia without
making the Jefferson City delivery, despite his proximity to the
delivery address during his final telephone conversation with
Ms. Christal and Mr. Atagana.  T. 94.
     The record thus establisheR that Complainant's complaint
centered on his extra job assignments, rather than on perceived
safety violations.  Accordingly, the essential complaint here is
not protected under Section 2305(a).  In any event, it is
uncontroverted that Complainant's refusal to work the remainder
of the shift, rather than his complaint, motivated Respondent to
discharge him.

[PAGE 5]
     Complainant asserts that he refused to complete the
Jefferson City and St. Louis assignments because of vehicle
safety defects and ill health.  Complainant failed to communicate
safety defects as a basis for his refusal, however, suggesting
that they did not motivate him to refuse work.  Moreover, even
assuming that the condition of the vehicle rendered Complainant's
refusal protected under the "when" or "because" clause of STAA
Section 2305(b), Respondent was not aware of any vehicle defects
and thus was not motivated by this consideration in discharging
Complainant.  Finally, had Complainant mentioned the defects as
required to invoke protection under subsection (b), Respondent
would have substituted another vehicle or arranged for repairs in
Jefferson City or St. Louis. T. 110, 118-119, 132-133. See
LeBlanc v. Fogelman Truck Lines, Inc., Case No. 89-STA-8,
Sec. Remand Dec., Dec. 20, 1989, slip op. at 12-13 (communication
requirement permits timely correction of hazard, thus promoting
safety, and reduces bad faith work refusals).
     Complainant's reported ill health arguably could have
invoked STAA protection.  The record reveals, however, that
Complainant communicated only that "he felt like [expletive
deleted]."  In explanation, Complainant testified that he was
frustrated and "started getting a headache . . . ."  T. 21-22.
Accordingly, I am unable to make findings required to invoke STP
Section 2305(b), e.g., that a reasonable person, under the
circumstances then confronting Complainant, would conclude that
there was a bona fide danger of an accident, injury, or serious
impairment of health resulting from the unsafe condition, or that
Complainant's ability or alertness was so impaired as to make
vehicle operation unsafe.  See 49 C.F.R. § 392.3
(1990).  Complainant thus has failed to establish a prima facie
case of unlawful discrimination.
     Complainant's complaint IS DISMISSED.
     SO ORDERED.
                              LYNN MARTIN
                              Secretary of Labor
Washington, D.C.


[ENDNOTES]
           
[1]   A "commercial motor vehicle" is "any self-propelled or
towed vehicle used on the highways in commerce principally to
transport passengers or cargo" if (1) the vehicle has a gross
vehicle weight rating of ten thousand or more pounds, (2) the
vehicle is designed to transport ten or more passengers, or (3)
the vehicle is used to transport hazardous materials.