DATE:  July 25, 1995
CASE NO. 92-SWD-1 


IN THE MATTER OF

WALTER MINARD,

          COMPLAINANT,

     v.

NERCO DELAMAR CO.,

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                 FINAL DECISION AND ORDER 
     This case is before me for the second time.  Initially, the
Administrative Law Judge (ALJ) recommended that the case be
dismissed on jurisdictional grounds.  I rejected that
recommendation and remanded the case for a decision on the
merits.  Minard v. Nerco DeLamar Co., Case No. 92-SWD-1,
Jan. 25, 1995.  On  March 3, 1995, the ALJ issued a Recommended
Decision and Order on Remand (R. D. and O.) recommending that the
case be dismissed because Walter Minard failed to establish a
prima facie case that he had been retaliated against for
engaging in activities protected by the Solid Waste Disposal Act,
42 U.S.C. § 6971 (1988) (SWDA).  The ALJ's findings of fact are amply
supported by the record, and his determinations regarding
credibility are unassailable.  With the clarification discussed
below I adopt the ALJ's R. D. and O. and dismiss the case.
DISCUSSION
     The R. D. and O. is sound, and I adopt it with only two
explanatory comments.  First, although the ALJ couched some of
the discussion in terms of a prima facie case,[1]  it is
evident that the entire record was evaluated in reaching the
conclusion that Minard failed to prove that he had engaged in
protected activity.  See, e.g. R. D. and O. at 5.  I agree
with the ALJ's 
[PAGE 2]
implicit conclusion that, based upon clearly supportable findings
of fact and credibility determinations, Minard failed to prove by
a preponderance of the evidence that he engaged in protected
activity.  See R. D. and O. at 2-5.
     Second, the ALJ relied heavily upon a determination that
Minard's testimony was incredible and inherently unreliable in
reaching the conclusion that Minard had not engaged in activity
protected by the SWDA.  R. D. and O. at 3-5.  Although Minard
attacks these determinations in his brief before me, the ALJ's
credibility determinations are owed special deference where, as
here, they are rational and within the ALJ's sound discretion. 
See, e.g. Pogue v. United States Dept. of Labor, 940 F. 2d
1287, 1289 (9th Cir. 1991); Beavers v. Secretary of Health
Education and Welfare, 577 F.2d 383, 387 (6th Cir. 1978);
Spencer v. Hatfield Electric Co., Case No. 86-ERA-33, Sec.
Dec. and Ord., Oct. 24, 1988, slip op. at 3-4; Shusterman v.
Ebasco Services, Inc., Case No. 87-ERA-27, Sec. Dec. and
Ord., Jan. 6, 1992, slip op. at 9; Smith v. Norco Technical
Services and Gulf States Utilities Co., Case No. 85-ERA-17,
Sec. Dec., Oct. 2, 1987, slip op. at 4.  There is nothing in the
record in this case, or in Minard's brief, which justifies
reconsideration of the ALJ's credibility determinations.
CONCLUSION
     I conclude that Minard failed to prove by a preponderance of
the evidence that he engaged in activity protected by the SWDA. 
I therefore approve the R. D. and O. as clarified and dismiss the
case.
     SO ORDERED.

                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.


[ENDNOTES]
           
[1]   The ALJ concluded, "the complainant has failed to prove any
of the other elements of his prima facie case.  For I find
that the complainant did not engage in any conduct protected by
the Act."  R. D. and O. at 2.  As I have noted in several
decisions (See, e.g. Carroll v. Bechtel Power
Corp., Case No. 91-ERA-0046, Sec. Dec. and Ord., Feb. 15,
1995, slip op. at 8-12, pet. for review docketed, No. 95-
1729 (8th Cir. Mar. 27, 1995), once a case has been fully tried
on the merits, the answer to the question whether the complainant
presented a prima facie case is no longer particularly
useful.