DATE: June 28,1991
CASE NO. 91-STA-19

IN THE MATTER OF

ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH,
    PROSECUTING PARTY,

    AND

MARTIN E. RESNIKOFF,
    COMPLAINANT,

    v.

ALBAUGH TRUCK LINE INC.,
    RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

    On April 12, 1991, the Administrative Law Judge (ALJ) issued a [Recommended] Decision and Order (R.D. and O.) in this case, finding that Respondent violated the employee protection provision of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1988). Pursuant to the regulations implementing the STAA, the ALJ's decision is now before me for review. See 29 C.F.R. § 1978.109(a) (1990).

    The ALJ found that Complainant engaged in protected conduct under the STAA when he refused to accept an August 15, 1990, work assignment that would have violated the Department of Transportation (DOT) regulations governing maximum driving and on-duty time, 49 C.F.R. § 395.3(a) (1989). The ALJ further found that Respondent discharged and discriminated against Complainant solely in retaliation for that protected conduct, and thereby violated Section 2305 of the STAA. As a remedy for the violation, the ALJ recommends that I order Respondent to reinstate Complainant and pay him certain back pay

and attorney fees.

    Complainant and the Assistant Secretary have filed statements before me, as permitted by 29 C.F.R. § 1978.109(c)(2), urging that the ALJ's recommended decision be upheld in all respects. Respondent has not filed any response to the recommended decision, however, its position before the ALJ was two-fold: (1) that Complainant was not discharged, and (2) that Complainant was not dispatched to drive in violation of the DOT regulation at Section 395.3(a). According to Respondent, Complainant voluntarily drove excessive hours on August 14, 1990; then refused to drive on August 15, 1990, as instructed; and failed to call in for daily dispatches thereafter. Respondent also argued alternatively that Complainant failed to mitigate his damages and is, therefore, not entitled to back pay.

    The ALJ's decision is thorough, well documented and reflects careful attention to the significant details of this case. Based on a review of the entire record, I find that the ALJ's factual findings, including his credibility determinations, are supported by substantial evidence. Specifically, I find that the ALJ's decision to accept Complainant's version of the relevant events and reject Respondent's contrary assertions is fully explained and neither conflicts with the clear preponderance of the evidence nor is patently unreasonable. Consequently, those findings of fact are conclusive, and are dispositive of this case. See 29 C.F.R. § 1978.109(c)(3); Ertel v. Giroux Brothers Transportation. Inc., Case No. 88-STA-24, Sec. Final Dec. and Order, Feb. 16, 1989, slip op. at 12 n.7; Price v. E & M Express Company Inc., Case No. 87-STA-4, Sec. Dec. and Order, Nov. 23, 1987, slip op. at 2.

    Although the ALJ did not explicitly analyze the issues in terms of the applicable burdens of proof, see generally Roadway Exp.. Inc. v. Brook, 830 F.2d 179, 181 n.6 (llth Cir. 1987); McGavock v. Elbar. Inc., Case No. 86-STA-5, Sec. Final Dec. and Order, July 9, 1986, slip op. at 10-11, his findings support the conclusion that Complainant established a prima facie case of retaliatory discharge and Respondent failed to articulate a legitimate, nondiscriminatory reason for its action.

    Additionally, I have carefully considered the

evidence and the arguments regarding Complainant's damages, and I find no reason to disturb the ALJ's findings.

    Accordingly, I accept the ALJ's R.D. and O., and relief IS GRANTED as explicitly set forth in the ALJ's R.D. and O. at 20-21.

    SO ORDERED.

       LYNN MARTIN
       Secretary of Labor

Washington, D.C.