FINAL DECISION AND ORDER
The Administrative Law Judge (ALJ) submitted a Recommended Decision
and Order (R. D. & O.) in this case arising under the employee protection provision of the
Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C.A. § 31105 (West 1994),
finding that Respondent K & P, Inc. discriminated against Complainants David Ferguson and
Robert Womack when it discharged them in retaliation for making safety complaints and for
refusing assignments because of their concerns about the safety of certain trailers. R. D. &
O. at 6.
Ken Pratt, who apparently is the sole proprietor of K & P, Inc.,
appeared pro se at the hearing representing K & P, Inc., cross-examined the
Assistant Secretary's witnesses and filed a post-hearing brief. In a September 24, 1996
letter to the Executive Director of the Administrative Review Board, Mr. Pratt requested a
new trial, asserting for the first time that he did not have enough time to retain an
attorney for the hearing. The record shows that Mr. Pratt requested a hearing on April 5,
1996 and the hearing was held on June 4, 1996. In addition, there is nothing in the record
to indicate that Mr. Pratt sought a postponement of the hearing to seek an attorney. The
request is denied.
Mr. Pratt also objected in his letter to the ALJ's finding that the
complaint here was timely as to both Complainants. We find that the ALJ correctly applied
the regulations implementing the STAA in holding that the letter from David Ferguson to
Senator Nunn's office on behalf of both himself and Robert Womack meets the requirements
of 29 C.F.R. § 1978.102 (1995). Mr. Pratt asserted that he was denied a fair trial
because the ALJ was "up for retirement," but did not explain how that
improperly affected the ALJ's impartiality. Finally, Mr. Pratt claimed his company would be
bankrupted if it were required to pay over $40,000 in back wages. The Secretary has held
that a defendant seeking relief from a back pay order on the grounds that it would force
the company out of business "must carry a heavy burden of showing inability to
comply." OFCCP v. Disposable Safety Wear , 59 Fair Empl. Prac. Cases [BNA]
1597, 1600, Sec'y. Dec. Sep. 29, 1992, and cases discussed therein. K & P, Inc. has made no
such showing here.
On the merits of the case, the record has been reviewed and we find
there is substantial evidence in the record to support the ALJ's finding that K & P violated
the STAA when it discharged Womack and Ferguson. We adopt the ALJ's R. D. & O. (copy
attached).
SO ORDERED.
DAVID A. O'BRIEN
KARL J. SANDSTROM
JOYCE D. MILLER
[ENDNOTES]
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