DATE:   July 20, 1992
CASE NO. 91-STA-24


IN THE MATTER OF

ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH,

          PROSECUTING PARTY,

     AND

ROBERT GUERNSEY,

          COMPLAINANT,

     v.

J.E. NELSON TRANSPORTATION
AND JERRY E. NELSON,

          RESPONDENTS.


BEFORE:  THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER
     In this case, which arises under the employee protection
provision of the Surface Transportation Assistance Act of 1982
(STAA), 49 U.S.C. app. § 2305 (1988), Robert Guernsey
alleges that Jerry Nelson fired him from his job as a mail hauler
because he complained to Nelson and United States postal
authorities about defects in Nelson's trucks.
     In a decision dated October 21, 1991, the Administrative Law
Judge (ALJ) first found that Guernsey failed to prove the causal
link necessary to establish a prima facie case of discrimination. 
The ALJ also considered the evidence further and ruled that even
under a dual motive analysis, Guernsey could not prevail.
     By Decision and Order of Remand (D.O.) dated February 13,
1992, I concluded that the ALJ erred in his analyses of both the
prima facie case and the dual motive issues.  After setting forth

[PAGE 2]
the parties' versions of the facts and their arguments, D.O. at
3-8, I remanded the case to the ALJ for more specific findings
and conclusions because the ALJ had not, in the first instance,
discussed all this relevant evidence, adequately resolved
critical issues of fact and credibility raised by the evidence,
or applied a proper standard under the dual motive analysis. 
D.O. at 8-16.
     On March 25, 1992, the ALJ issued the [Recommended] Decision
and Order on Remand (R.D. and O.) which is now before me for
review.  See 29 C.F.R. § 1978.109(a) (1991).  Upon
reconsideration of the evidence, the ALJ again found that
Guernsey failed to establish a prima facie case of discrimination
and recommended dismissal of the complaint.  In making this
determination, the ALJ focused on whether, at the time the
employment decisions were made, Nelson knew that Guernsey had
engaged in any protected conduct.  The ALJ refused to credit
Complainant's testimony and found no probative evidence that
Guernsey made safety-related complaints to Nelson. 
Additionally, the ALJ found that although Guernsey engaged in
protected activity by raising safety complaints to a postal
official on August 14 and 15/16, 1990, the evidence does not
substantiate that Nelson knew of this specific activity.  R.D.
and O. at 4-5.

     The Acting Assistant Secretary for Occupational Safety and
Health has filed a brief urging that I set aside the ALJ's
findings on remand and accept Guernsey's recitation of the facts
over those alleged by Nelson.  No other briefs have been filed
before me, although permitted by the regulations.  See 29
C.F.R. § 1978.109(c)(2).
     Under the STAA, I must accept the ALJ's basic and inferred
findings of fact and credibility if they are supported by
substantial evidence.  29 C.F.R. § 1978.109(c)(3). [1]   I
have reviewed the ALJ's findings pursuant to this standard,
mindful that substantial evidence "is more than a scintilla," and
that all the findings must be adequately explained.  See
Perez v. Guthmiller Trucking Co., Inc., Case No. 87-STA-
00013, Sec. Final Dec. and Ord., Dec. 7, 1988, slip op. at 21,
quoting NLRB v. Columbian Enameling and Stamping Co., 306
U.S. 292, 300 (1939), and slip op. at 13-14, quoting NLRB v.
Cutting, Inc., 701 F.2d 659, 663 (7th Cir. 1983).  I conclude
that the findings and inferences are supported by substantial
evidence and I accept the ALJ's decision, as elaborated below. 
     First, I fully agree that while Guernsey engaged in
protected activity under the STAA by raising safety complaints to
the postal authorities, see R.D. and O. at 4-5; D.O. at 9-
10, the record, including Guernsey's own uncertain testimony,
Transcript (T.) at 43, does not show that Nelson had any
knowledge of this 
[PAGE 3]
protected conduct.  Consequently, this conduct could not be a
basis of Nelson's employment decisions.  Gay v. Burlington
Motor Carriers, Case No. 92-STA-5, Sec. Final Dec. and Ord.,
May 20, 1992, slip op. at 5.
      I also accept the ALJ's findings concerning Guernsey's
alleged internal complaints.  The ALJ found Guernsey's testimony
that he made repeated internal safety complaints during his
employment unbelievable in light of testimony from other ex-
employees, a mechanic, and a Department of Labor compliance
officer to the effect that Nelson's trucks were in "good shape,"
repaired freely and serviced regularly, although the mechanic had
never seen Guernsey before.  The ALJ also found it significant
that although Nelson and other witnesses testified that Guernsey
complained frequently, none of the other witnesses, including the
compliance officer, specifically verified that Guernsey made
safety-related complaints.  He further questioned Alan Bean's
testimony because he disbelieved that Nelson would have made
threats about Guernsey's job before a stranger, who possibly was
aquainted with Guernsey.  R.D. and O. at 3-4. [2] 
     The ALJ's findings are adequately explained and are not
irrational or contradicted by undisputed evidence.  Although I
have considered the Assistant Secretary's arguments that
Guernsey's testimony is reliable and that the circumstantial
evidence supports an inference contrary to that drawn by the ALJ,
I find no compelling reason to overturn the ALJ's credibility
determinations or to disturb his choices among uncertain and
conflicting inferences. [3]   The possibility of drawing two
inconsistent conclusions from the evidence does not prevent the
ALJ's conclusion from being supported by substantial evidence. 
Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620
(1966).   
     The ALJ did not discuss whether Guernsey engaged in
protected conduct on August 15 and 16 by generally reporting to
his employer that his truck was damaged in an accident and that
his truck was "turned around" by postal authorities.  Within the
context of this case, I question whether these reports are
protected.  Not every statement which can be tied to safety
considerations constitutes a protected complaint within the
meaning and intent of the STAA.  See Barr v. ACW Truck
Lines, Inc., Case No. 91-STA-42, Sec. Final Dec. and Ord.,
Apr. 22, 1992, slip op. at 4-5; Mace v. ONA Delivery Systems,
Inc., Case No. 91-STA-10, Sec. Final Dec. and Ord., Jan. 27,
1992, slip op. at 6-7.  Additionally and perhaps significantly,
Guernsey's statements in this regard did not appear to form a
basis for his original theory of discrimination.  In any event,
even if these statements do constitute protected complaints of
which Nelson was aware, I am convinced that they played no part
in Nelson's employment decisions regarding Guernsey.  T. at 181-
82, 66-67.  

[PAGE 4]
     Accordingly, the complaint IS DENIED.
     SO ORDERED.

                              LYNN MARTIN
                              Secretary of Labor

Washington, D.C.



[ENDNOTES]
           
[1]  Section 1978.109(c)(3) of the implementing regulations
provides:

     The findings of the administrative law judge with
     respect to questions of fact, if supported by
     substantial evidence on the record considered as a
     whole, shall be considered conclusive.

[2]  I disagree with the Assistant Secretary's interpretation of
the ALJ's rationale for discrediting Bean's testimony.  I agree,
however, that in noting Guernsey's "apparent lack of effort to
correct alleged defects," the ALJ failed to recognize Guernsey's
testimony that he took the trucks into Ken Rainey's garage for
repairs on occasion.  R.D. and O. at 3.  The ALJ's error is not
reversible as his ruling is based on sufficient other
considerations.

[3]  I recognize that Nelson's statement that Guernsey complained
only about "creature comforts" was espoused in a post-hearing
brief, however, Nelson, who was representing himself, developed
and elicited evidence supporting the argument at the hearing.  T.
at 163, 171-72.