Date: July 2, 1994

Case No.: 93-STA-31

                                       
IN THE MATTER OF:                      
                                       
Gregory A. Dutile
  Complainant

  against

Tighe Trucking, Inc.
  Respondent

Appearances:

Gregory A. Dutile
  Pro Se

(No Appearance)
  For the Respondent


Before:  David W. Di Nardi
         Administrative Law Judge


                   RECOMMENDED DECISION AND ORDER
  
     This case arises under Section 405 of the Surface
Transportation Assistance Act (hereinafter referred to as the
"Act"), 49 U.S.C. §2305.  Complainant, Gregory A. Dutile of
Plainville, Massachusetts, filed a complaint under the Act,
alleging that his employer, Tighe Trucking, Inc. ("Employer" or
"Respondent") discharged him "because he refused to drive a truck
that had a broken roof."  (ALJ EX 2)  The Respondent denied the
allegation.
                         PROCEDURAL HISTORY
     On June 28, 1993 a hearing was held in Providence, Rhode
Island on the merits of the complaint.  Complainant appeared Pro
Se and the Employer was represented by counsel.  The parties
were 
[PAGE 2]
afforded the opportunity to present oral argument, their witnesses
and documentary evidence.  A briefing schedule was established on
July 15, 1993,  (ALJ EX 9A)  Copies of certain exhibits were sent
to Complainant on July 19, 1993.  (ALJ EX 9A)  Claimant's 1992 Tax
return and form W-2's have been admitted as CX 7.  Claimant's
position paper has been identified as CX 7.  A copy thereof was
sent to Respondent's counsel on August 6, 1993 (ALJ EX 10) and
counsel was given seven (7) days to file a response.  The record
was closed on August 11, 1993, at which time Attorney McEvoy filed
his response to Complainant's brief.  (RX 1)  
     The following abbreviations shall be used:  TR for the
official transcript, ALJ EX for an exhibit offered by this
Administrative Law Judge, CX for an exhibit offered by Complainant
and RX for an exhibit offered by Respondent.
     This Administrative Law Judge, after a full hearing and review
of the evidence presented by the parties, concluded (1) that
Complainant had reasonable grounds to refuse to drive truck 36 on
December 24, 1992 because of the unsafe condition of the truck, (2)
that Respondent's termination of Complainant violated Section 405
of the STAA and (3) that Complainant was entitled to an award of
all benefits provided by the Act.
     This closed record conclusively establishes (1) that
Complainant was discharged from his employment with Respondent and
that he was the subject of adverse employment action, (2) that
Complainant had established that he was engaged in protected
activity under the Act, (3) that Complainant established a prima
facie case of retaliatory discharge by Respondent and (4) that
Respondent's witnesses, were, in certain material respects, less
than candid to such an extent that I credited Complainant's version
in those areas of inconsistencies.
     Complainant does not seek reinstatement with the Respondent
(TR 29) and he is entitled to an award of back pay, plus
appropriate interest, commencing on December 24, 1992, the date of
termination.  Thus, I awarded Complainant back pay at the rate of
$634.90 per week, commencing on December 24, 1992 and continuing
until such time as Respondent pays the amount of the award to
Complainant.  Appropriate interest was awarded on such back wages
in accordance with 26 U.S.C. §6621.  Park v. McLean
Transportation Services, Inc., 91-STA-47 (Sec'y June 15, 1992).
     I also found and concluded that Complainant had sustained his
burden of mitigating damages as he has been unable to obtain
employment.
[PAGE 3]
     In my prior Decision and Order, I specifically found that
Complainant was entitled to an award of back pay from December 24,
1992 to the date of actual payment, including appropriate interest
thereon, and that while he had alleged certain lost benefits as a
result of the termination, he had not established the value of such
benefits, and the burden is on the Complainant to do so.
     I also concluded that Complainant was also entitled to a
provision herein directing that the Respondent immediately expunge
from Complainant's personnel records all derogatory or negative
information contained therein relating to Complainant's work for
the Respondent and his termination on December 24, 1992.
     Accordingly, on August 12, 1993, I issued the following
ORDER:
     It is therefore ORDERED that Respondent shall pay to
Gregory A. Dutile the back pay award at the rate of $634.40 per
week, commencing on December 24, 1992 and continuing until payment
of the award by Respondent, plus appropriate interest at the IRS
rate,    computed until the date of payment to Complainant.
     It is further ORDERED that Respondents shall
immediately expunge from Complainant's personnel records all
derogatory or negative information contained therein relating to
Complainant's employment with the Respondents and his termination
on December 24, 1992.
     The matter was then appealed to the Secretary of Labor and the
Secretary, by Decision and Order dated November 29, 1993, affirmed
this Administrative Law Judge and issued an ORDER adopting
the ORDER I had issued.
     While the case was pending before the Secretary, Respondent
tendered to Complainant a check for $29,245.70, which represented,
according to Respondent, back pay from December 24, 1992 through
November 5, 1993, in the amount of $634.90 per week.  Respondent
calculated interest according to the rate for "T-bills" and
compounded it monthly.  On November 18, 1993, Complainant returned
the check to Respondent, stating that he did not consider it to be
adequate compensation and that he would await the Secretary's
decision.
     Respondent's counsel asked the Secretary to allow a reduction
on the interest owed according to the Secretary's November 29, 1993
Decision and Order.  However, the Secretary denied that request as 
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the Secretary has continually required interest to be paid
according to the rate specified in 26 U.S.C. § 6621 (the
interest rate for underpayment of Federal income tax).
     The Secretary denied the motion and remanded the decision to
this Administrative Law Judge for a calculation of the precise
amount of back pay and interest owed to Respondent, according to
the November 29, 1993, Decision and Order.
     The matter was docketed at the Boston District Office and this
Administrative Law Judge, by ORDER dated May 12, 1994 (ALJ
EX A), advised the parties of such docketing and the parties were
given thirty (30) days to file briefs on the Secretary's mandate
herein.
     Complainant's response, dated June 14, 1994, was filed on June
16, 1994 (CX A) and Respondent has not favored this Court with a
response.  Thus, the reocrd was closed on June 14, 1994.
                             DISCUSSION
     While the matter was initially pending before this
Administrative Law Judge, Complainant alleged the deprivation of
certain fringe benefits.  However, he was unable to document same
and, on page 16 of my decision, I pointed out that Complainant had
not sustained his burden on this issue.
     As the Secretary's ORDER of November 29, 1993 has not
become final and as this matter is still pending, Complainant has
now documented the direct fringe benefits that he has lost as a
result of his illegal termination by Respondent.
     Complainant retained the services of Viens & Associates of
Attleboro, Certified Public Accountants, and, in a most
professional presentation, Complainant has now identified his lost
fringe benefeits and has provided specific figures for his back
wages, plus appropriate interest at the rate mandated by the
Secretary; for his medical insurance benefits and for the
Respondent's contributions to his retirement plan.
     Complainant's specific data is as follows:

     1.  Compensation for lost salary                  $54,604.85
      Based on 1992 W-2 Statements with interest
      calculated pursuant to 26 U.S.C. 6621.

     2.  Medical insurance pay back                    $13,624.51
      Based on 1993 rates from Paul Brideau/
      controller, Tighe Trucking
[PAGE 5]
     3.  401 K Plan w/employer contributions          $ 4,788.40 
       Based on information from Wausau Life
       Insurance Company (plan administrator).

     Complainant has indicated that the data submitted by him has
been computed until July 15, 1994, thereby allowing Respondent
sufficient time to comply with the RECOMMENDED ORDER 
I shall issue herein.
              Findings of Fact and Conclusions of Law
     It is now well-settled that the Complainant, in addition to
his award of back pay and interest thereon, is also entitled to
restoration of the pension contributions and the health and welfare
benefits of which he has been deprived as a result of the
discriminatory and illegal actions of the Respondent.  In this
regard, see Hufstetler v. Roadway Express, Inc., Case No.
85-STA-8(Sec'y, Aug. 21, 1986) (dealing with the restoration and
payment of all pension contributions and lost medical benefits). 
These remedies are provided by the STAA as a reasonable remedy to
"make whole" the Complainant and these remedies are needed herein
to restore Complaint to the status quo ante he would now be
enjoying but for the discriminatory actions of the Respondent,
which actions have already been affirmed by the Secretary as
violative of the STAA.
     While Complainant has been appearing Pro Se, he, as the
prevailing party, is entitled to an award of his expert witness
fee.  See 29 C.F.R. § 24.6(b)(3).  As I have already
found above, Complainant has documented his back pay and lost
fringe benefits in a most professional manner and the charge
therefor, $175.00, is most reasonable and Respondent shall
reimburse Complainant for that amount.
     Complainant properly refused the "tender" offer by Respondent
because the proferred check was inadequate and was not computed in
accordance with the ORDER issued by this Administrative Law
Judge and as affirmed by the Secretary.  Moreover, Complainant's
acceptance of that check might have prejudiced and/or waived his
right to the full restoration of his benefits as awarded herein.
     Accordingly, in view of the foregoing, I issue the following:
                       RECOMMENDED ORDER [1] 
     1.  It is therefore ORDERED that Respondent shall pay
to 
[PAGE 6]
Gregory A. Dutile the back pay award at the rate of $634.90 per
week, commencing on December 24, 1992 and continuing until payment
of the award by Respondent, plus appropriate interest at the IRS
rate, computed until the date of payment to Complainant, and the
amount of back pay and interest until July 15, 1994 totals
$54,604.85.

     2.  It is further ORDERED that Respondent shall pay to
Gregory A. Dutile the amount of $13,624.51 as restoration of his
medical insurance benefits.

     3.  It is further ORDERED that Respondent shall pay to
Gregory A. Dutile the amount of $4,788.40 as restoration of
Respondent's contributions to the Complainant's 401(k) plan.

     4.  It is further ORDERED that Respondent shall
reimburse Complainant the amount of $175.00 as the expert witness
expense.

     It is further ORDERED that Respondent shall immediately
expunge from Complainant's personnel records all derogatory or
negative information contained therein relating to Complainant's
employment with Respondent and his termination of December 24,
1992.  Respondent shall also refrain from reference to this
incident when providing employment reference concerning
Complainant.


                                   DAVID W. DI NARDI
                                   Administrative Law Judge

[PAGE 7]
[ENDNOTES]
                        
[1]   The Final Order will be issued herein by the Secretary.