UNITED STATES
DEPARTMENT OF LABOR

USDOL/OALJ Reporter
Palinkas v. United Parcel Service, 95-STA-30 (Sec'y Mar. 7, 1996)

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                        U.S. DEPARTMENT OF LABOR
                                    
                           SECRETARY OF LABOR
                            WASHINGTON, D.C.


DATE: MAR 7, 1996
CASE NO. 95-STA-30


IN THE MATTER OF

RUSSELL A. PALINKAS,
          COMPLAINANT,

     v.

UNITED PARCEL SERVICE,
          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


FINAL DECISION AND ORDER

     This case arises under Section 405, the employee protection
provision, of the Surface Transportation Assistance Act of 1982
(STAA), 49 U.S.C.A. § 31105 (West 1994).  Before me for
review is the Recommended Decision and Order (R.  D. and O.)
issued on December 13, 199S by the Administrative Law Judge
(ALJ).  The ALJ concluded that Complainant, Russell A. Palinkas
(Palinkas), had failed to establish that Respondent, United
Parcel Service (UPS), had violated the STAA by suspending
Palinkas for engaging in protected activity.  The ALJ therefore
recommended that the complaint be dismissed.

     It is undisputed that Palinkas refused to complete his
regular route as a truck driver for UPS on the night of September
16, 1994.  Hearing Transcript at 17-28; R. D. and O. at 2.
Palinkas claims that his refusal was protected under the STAA
because it was based on his fear that he was too emotionally
upset to drive safely at that time.  R. D. and O. at 3. In
support of his position, Palinkas cites a provision of the
Federal Motor Carrier Safety Regulations, 49 C.F.R. § 392.3,
which prohibits driving "while the driver's ability or alertness 
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is so impaired, or so likely to become impaired, through fatigue,
or illness, or any other cause, as to make it unsafe for him to
begin or continue to operate the motor vehicle." R. D. and O. at
3. The STAA protects a refusal to drive when such operation
constitutes a violation of a Federal regulation, standard or
order "related to commercial motor vehicle safety or health" or
because of the employee's "reasonable apprehension of serious
injury to the employee or the public because of the vehicle's
unsafe condition." 49 U.S.C. § 31105(a)(1)(B); see Smith
v. Specialized Transportation Services, Case No. 91-
STA-0022, Sec. Dec., Apr. 30, 1992, slip op. at 3 (citing Self
v. Carolina Freight Carriers Corp., Case No. 89-STA-9,
Sec. Dec., Jan. 12, 1990, slip op. at 9; Mace v. ONA Delivery
Systems, Inc., Case No. 91-STA-10, Sec. Dec., Jan. 27, 1992,
slip. op. at 7-8).

     Based on consideration of the relevant evidence of record,
the ALJ concluded that the evidence did not establish that
Palinkas' "state of mind made operation of his tractor-trailer
unsafe or created a risk of an accident." R. D. and O. at 4. In
drawing the conclusion that the work refusal did not qualify for
protection under the STAA, the ALJ also found that, at the time
of the work refusal, Palinkas was angry with a supervisor who had
admonished him, while in the UPS dispatch office, to immediately
return to and complete his route.  R. D. and O. at 3. Just prior
to that exchange, Palinkas had been advised that, beginning with
his next work day, he would be "bumped" from his route by a
driver with more seniority, and he had been reviewing a list of
available routes.  R. D. and O. at 1-2.  The ALJ thus concluded
that Palinkas had not established that the work refusal was based
on a prospective violation of a pertinent Federal standard or on
a reasonable apprehension of injury to himself or the public, as
required under 49 U.S.C. § 31105 (a)(1)(B).  Accordingly,
the ALJ further concluded that Palinkas had not engaged in
activity protected under the STAA, as is necessary to establish a
violation under Section 405.  R. D. and O. at 3.

     The ALJ's factual findings are supported by substantial
evidence on the record considered as a whole and are therefore
conclusive, see 29 C.F.R. § 1978.109(c)(3) (1995). 
Furthermore, the ALJ's legal conclusion that Palinkas had failed
to establish that his work refusal on September 16, 1994 was
protected under the STAA is wholly in accord with applicable law. 
See Smith, slip op. at 3, and cases cited therein.  I
therefore accept the recommended decision.

     Accordingly, this complaint is DISMISSED.


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     SO ORDERED.


                                        ROBERT B. REICH
                                        Secretary of Labor

Washington, D.C.