DATE:  August 4, 1995
CASE NO:  94-STA-00055


IN THE MATTER OF

MARK L. BRUNNER,
          COMPLAINANT,

     v.

DUNN'S TREE SERVICE,
          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR

                         FINAL DECISION AND ORDER

     Complainant Mark Brunner alleges that Respondent Dunn's Tree
Service (Dunn's) violated the employee protection provision of
the Surface Transportation Assistance Act of 1982 (STAA), 49
U.S.C.A. § 31105 (West 1994).  The findings of fact in the
Administrative Law Judge's (ALJ's) Recommended Decision and Order
(R.D. and O.), at 1-5, are supported by substantial evidence on
the record as a whole and therefore are conclusive.  29 C.F.R. 
§ 1978.109(c)(3) (1993).  I agree with the ALJ's ultimate
conclusion that the complaint should be dismissed for the
following reasons.
                                BACKGROUND
     Complainant Mark Brunner worked for Respondent seasonally,
beginning approximately in April of 1985.  Brunner performed a
variety of duties for Respondent.  In April, 1994, Brunner was
called in to operate the "bucket truck," a vehicle subject to
inspection under 49 C.F.R. § 396.  Brunner was called in
because 
[PAGE 2]
the regular operator of the truck was on vacation for two weeks. 
Brunner claimed that the vehicle was in need of serious repairs,
out of compliance with Department of Motor Vehicle (DMV)
regulations, and therefore unsafe to operate.  Respondent claimed
that the vehicle was in good, safe, working order.  The vehicle
passed a DMV inspection on or about February 16, 1994.
     On or about May 2, 1994, Brunner was discharged for refusing
to operate the bucket truck.  Respondent claims that Brunner quit
voluntarily, but I agree with the ALJ that Brunner was discharged
by Respondent.  Thereafter, Brunner filed a complaint with the
U.S. Department of Labor (DOL), which is the matter now before
me.
                                DISCUSSION
     In order to prevail under the employee protection provisions
of the STAA, Brunner must first establish that he engaged in
protected activity.  The relevant portion of section 405(b) of
the STAA, states:
     [a] person may not discharge an employee or discipline or
     discriminate against an employee regarding pay, terms, or
     privileges of employment, because-

          (B) the employee refuses to operate a vehicle because-

               (i) the operation violates a regulation,
               standard, or order of the United States
               related to commercial motor vehicle safety or
               health; or

               (ii) the employee has a reasonable apprehension of
               serious injury to the employee or the public
               because of the vehicle's unsafe condition.

49 U.S.C.A. § 31105(a)(1)(B) (West 1994).  Brunner claims
that he refused to drive Dunn's vehicle because to do so would
have violated both clauses under subsection (B) of the STAA.
     In order to prevail under 49 U.S.C.A. §
31105(a)(1)(B)(i), Brunner must prove by a preponderance of the
evidence that an actual violation of a regulation, standard, or
order of the United States would have in fact occurred had
Brunner operated the bucket truck.  Bryant v. Bob Evans
Transportation, Case No. 94-STA-24, Sec. Dec., Apr. 10, 1995,
slip op. at 12; Brame v. Consolidated Freightways, Case
No. 90-STA-20, Sec. Dec., June 17, 1992, slip op. at 3;
Robinson v. Duff Truck Line, Inc., Case No. 86-STA-3, Sec.
Dec., Mar.6, 1987, slip op. at 12, n.7.  Brunner may have had a
good faith belief that the vehicle was unsafe and in violation of
DMV regulations, but, Brunner's good faith belief alone is not
sufficient to prove a violation under section 
[PAGE 3]
(a)(1)(B)(i) of the STAA.  
     Brunner was unable to prove that an actual violation of any
regulation, standard, or order of the United States would have
occurred if the bucket truck had been operated as ordered on 
May 2, 1994.  No other employee of Respondent noticed the
problems cited by Brunner to Respondent.  The vehicle passed its
annual inspection on or about February 16, 1994.  Then, on 
June 6, 1994, approximately one month after Brunner's discharge,
DMV conducted a surprise inspection of the bucket truck.  There
was no evidence that the vehicle received any repairs between
Brunner's discharge and the DMV surprise inspection. 
Nevertheless, the bucket truck passed the DMV inspection, so
Brunner did not prove that an actual violation of the STAA would
have occurred had he operated the bucket truck on May 2, 1994.  
     Under 49 U.S.C.A. § 31105(a)(1)(B)(ii) Brunner must
prove by a preponderance of the evidence that his alleged
reasonable apprehension of serious injury due to the vehicle's
unsafe condition, was objectively reasonable.  Brame v.
Consolidated Freightways, Case No. 90-STA-20, Sec. Dec., June
17, 1992, slip op. at 3.  However, Respondent showed that
Brunner's belief about the condition of the vehicle was not
objectively reasonable.  At the hearing, two witnesses with
considerable trucking experience, Mitchell Gahagan and Phillip
Dunn, testified that the vehicle was operating well before and
after Brunner made his safety allegations.  Neither noticed the
problems cited by Brunner.  Additionally, as previously noted,
the vehicle passed a surprise DMV inspection approximately one
month after Brunner's discharge.   Therefore, based upon the
evidence as a whole, Brunner did not prove by a preponderance of
the evidence that any defects in the truck constituted actual
violations of the DMV regulations under 49 U.S.C.A. §
31105(a)(1)(B)(i).  Nor did Brunner prove by a preponderance of
the evidence that his alleged reasonable apprehension of serious
injury to himself or others was objectively reasonable under 49
U.S.C.A. § 31105(a)(1)(B)(ii).
                                CONCLUSION
     Accordingly, the decision of the ALJ is accepted and it is
hereby ORDERED that the complaint be DISMISSED.
     SO ORDERED.

                              ROBERT B. REICH
                              Secretary of Labor
Washington, D.C.