ARB CASE NO. 99-061 ALJ CASE NO. 98-STA-34 DATE: July 16, 1999
In the Matter of:
ASSISTANT SECRETARY OF LABOR FOROCCUPATIONAL SAFETY AND HEALTH,
PROSECUTING PARTY,
and
HARRY D. COTES,
COMPLAINANT,
v.
DOUBLE R TRUCKING, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Prosecuting Party:
Laura V. Fargas, Esq., Mark J. Lerner, Esq., Daniel J. Mick, Esq., Donald G.
Shalhoub, Esq., Joseph M. Woodward, Esq., Henry Solano, Esq., U. S. Department of Labor,
Washington, D. C.
FINAL DECISION AND ORDER
This case arises under the employee protection provision of the Surface
Transportation Assistance Act of 1982 ("STAA"), as amended, 49 U.S.C.A. §31105
(1997). The Assistant Secretary for Occupational Safety and Health alleged that Double R Trucking
("Double R" or "Company") violated STAA §31105(a)(1)(B) by firing
[Page 2]
Harry D. Cotes ("Cotes" or "Complainant") because of his refusal to drive an
overweight truck. Following a hearing on the merits, the Administrative Law Judge ("ALJ")
issued a Recommended Decision and Order ("R. D. & O.") finding that Cotes had established
a STAA violation and granting relief. With the exception noted below, we find that the ALJ's findings of
fact are supported by substantial evidence and are therefore conclusive. R. D. & O. at 2; 29 C.F.R.
§1978.109(c)(3) (1997). Furthermore, we agree with the finding of liability, but disagree, in part,
with the remedy the ALJ ordered.
Prehearing Response of the Assistant Secretary of Labor for Occupational Safety and Health
("Prehearing Br."), October 31, 1998, at 5. Furthermore, in his post-hearing submission to
the ALJ, the Assistant Secretary remained silent regarding reinstatement, conduct consistent with an
understanding that the matter was settled. Assistant Secretary's Proposed Findings of Facts, Conclusions
of Law and Order ("Proposed Findings"), January 15, 1999.5 Having represented before the ALJ that
reinstatement had been waived, the Assistant Secretary will not be heard to repudiate the waiver.
1 Citations to the transcript of the November
16, 1998, hearing are shown as "Tr." In addition, "CX" and "DX" are
citation forms for the exhibits of Complainant and Double R, respectively.
2 Double R did not challenge this
ruling on review. The Company was represented before the ALJ by Roger Arndt, appearing pro se.
At the hearing, the ALJ noted that in pretrial discussions, Arndt indicated that the Company was "in a
precarious position and on the brink of bankruptcy proceedings." Tr. at 5. No brief or other pleading
was filed with this Board by Double R.
3 Cotes had been fined for carrying
excess weight in January 1998, and at that time, he was informed by a Washington State Department of
Transportation officer that the weight limit on the truck was 94,000 lbs. (60,000 lbs. truck weight and a
maximum of 34,000 lbs. of load). R. D. & O. at 2; Exh. CX- 4.
4 This earlier representation directly
contradicts the Assistant Secretary's repeated representations to the Board on appeal that there was
"nothing" before the ALJ to indicate that reinstatement had been waived. Brief of the Assistant
Secretary ("Br. of Asst. Sec."), May 3, 1999, at 14, 21.
5 The Assistant Secretary provided
copies of the Prehearing Brief and the Proposed Findings to both Arndt and Cotes so they were aware of the
representations being made regarding reinstatement and the remedy in general. See the cover letters
for the Prehearing Brief and the Proposed Findings, dated October 31, 1998, and January 15, 1999,
respectively.
6 The Assistant Secretary also
contends that the accrual of back pay should not stop until Cotes has been given a bona fide reinstatement
offer. Br. of Asst. Sec. at 16-22. As noted above, Cotes waived his right to reinstatement, so this contention
is moot.
7 In the "Conclusions"
section of his brief to the Board and without discussion or citation to authority, the Assistant Secretary
requests an order requiring Double R to expunge Cotes' personnel records of all references to the firing and
to order the Company to make no oral or written references to the firing in the future. Br. of Asst. Sec. at
23. The ALJ declined to order such remedy based on the "totality of the record." R. D. & O.
at 3. We affirm.