DATE:  January 23, 1992
CASE NO. 91-STA-37

IN THE MATTER OF

KURT MECUS,

          COMPLAINANT,

     v.

CONSOLIDATED FREIGHTWAYS,

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     Before me for review is the October 31, 1991, Recommended
Decision and Order (R.D. and O.) of the Administrative Law Judge
in this case under Section 405, the employee protection
provision, of the Surface Transportation Assistance Act of 1982
(STAA), 49 U.S.C. app. § 2305 (1988).
     Complainant, an over-the-road truck driver, was terminated
from Respondent's employ on or about June 30, 1990.  Complainant
alleges that he was discharged in violation of the STAA and the
applicable Department of Transportation (DOT) regulations, [1] 
which prohibit the discharge or discipline of an employee "for
refusing to operate a vehicle when such operation constitutes a
violation of any Federal rules [or] regulations . . . applicable
to commercial motor vehicle safety or health . . ."  49 U.S.C. 
§ 2305(b).  Respondent characterized the discharge as a
"voluntary quit" because of Complainant's "refusal" to accept 
a second round-trip assignment between Milwaukee and Chicago. 
Complainant contends that his refusal was not a "quit" but was 
based on illness which he experienced during his Milwaukee/Chicago
run made earlier that day.  
     Complainant's discharge also was the subject of a grievance 
[PAGE 2]
filed by Complainant pursuant to Respondent's collective
bargaining procedure.  On August 1, 1990, the grievance committee
ruled that Complainant be conditionally reinstated with full
seniority, and that his time off constitute an unpaid
disciplinary suspension. [2]   Respondent's Exhibit(RX)A; R.D. 
and O. at 4.  
     The ALJ found that Complainant failed to establish a prima
facie case that he was discharged for engaging in activity
protected by the STAA.  In addition, on the basis that it was
"difficult to evaluate the fairness of the arbitration in this
matter based on two pages of minutes from that proceeding,
see [RX-A]," R.D. and O. at 8, the ALJ, citing 
Taylor v. NLRB, 786 F.2d 1516 (11th Cir. 1986), 
gave no weight to the arbitration decision. 
     Upon consideration of the record, I find the ALJ's factual
findings, R.D. and O. at 6-8, supported by substantial evidence
in the record, and I accept them.  29 C.F.R. §
1978.109(c)(3) (1990).  In particular, the ALJ's substantive
holding that protected activity has not been established because
"the evidence does not show that illness prevented [Complainant]
from making [a second Milwaukee/Chicago round] trip," R.D. and O.
at 8, is supported by substantial evidence.  See
e.g., Complainant's testimony expressing his willingness
to accept a different trip assignment on the day in
dispute.  Hearing Transcript 65-66.  
     The ALJ's determination to afford no weight to the grievance
proceeding also appears appropriate.  This was not a situation
where the ALJ rejected the arbitration decision without examining
the proceedings, cf., Roadway Express, Inc. v.
Brock, 830 F.2d 179, 181 (11th Cir. 1987), but rather one
where, the limited two-page summary offered failed to demonstrate 
that "those proceedings were adequate to protect [Complainant's] statutory
rights. . . ."  Id.  The record gives no indication that
the grievance committee considered the case as a matter involving
discriminatory retaliation by Respondent based on Complainant's
alleged safety-related protected activity.  See 29 C.F.R. 
§ 1978.112(a)(1) and (c).  See also McDonald v.
City of West Branch Michigan, 466 U.S. 284, 289, 292 n.12,
(1984).
     Accordingly, as clarified herein, I adopt and append the
Recommended Decision and Order of the ALJ, and the complaint in
this case is DENIED.
     SO ORDERED.


                              LYNN MARTIN                        
                              Secretary of Labor


[PAGE 3]
Washington, D.C.




[ENDNOTES]
           
[1]  The DOT regulation at issue in this case provides that:

     [n]o driver shall operate a motor vehicle, and a motor
     carrier shall not require or permit a driver to operate
     a motor vehicle, while the driver's ability or
     alertness is so impaired or so likely to become
     impaired, through fatigue, illness or any other cause
     as to make it unsafe for him to begin or continue to
     operate a motor vehicle.  49 C.F.R. § 392.3.

[2]   When the STAA complaint was filed on September 21, 1990,
Complainant's discharge had been converted into the suspension. 
The summary allegations in the STAA complaint do not specify
whether its basis is the discharge, the suspension or both, but
in view of the outcome, this ambiguity is not material.