U.S. DEPARTMENT OF LABOR

                           SECRETARY OF LABOR
                            WASHINGTON, D.C.

DATE: November 21, 1994
CASE NO. 93-STA-19


IN THE MATTER OF

CHESTER C. ROWLAND, JR.,
          COMPLAINANT,

     v.

EASY REST BEDDING, INC.,
          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


ORDER OF REMAND

     Before me for review is the [Recommended] Order of Dismissal
(R.O.D.) issued by the Administrative Law Judge (ALJ) in the
captioned case, which arises under Section 405 (employee
protection provision) of the Surface Transportation Assistance
Act of 1982 (STAA), 49 U.S.C. app. 2305 (1988).

     Complainant Chester C. Rowland, Jr., an over-the-road
operator of commercial motor vehicles, contends that he was
discharged by Respondent Easy Rest Bedding, Inc., because he
engaged in a work refusal which was protected under STAA Section
405.  According to a State of Tennessee Department of Employment
Security Transcript contained in the record, Respondent's
President and Plant Manager jointly decided to discipline
Rowland.  The ALJ recommended that Rowland's complaint should be
dismissed because Respondent's President is now deceased and
because the Respondent corporation reportedly has reverted to its
previous owner.  See Additional Field Investigation
conducted by 
[PAGE 2]
the Occupational Safety and Health Administration (OSHA), U.S.
Department of Labor, dated June 16, 1994. [1] The ALJ also
predicated his recommendation on Rowland's failure to respond to
a June 29, 1994, Order to Show Cause.  Although this Order
certifies that it was "sent" to Rowland, the record contains no
proof that Rowland received it.

     I note that OSHA's Additional Field Investigation suggests
that the present employer "may be considered a successor company
in view of the . . . information" provided.  R.O.D. at 2.
Factors relevant to determining successorship and successorship
liability in a labor context include:

     (1)  Whether the successor company had notice of the charge,
     (2) the ability of the predecessor to provide relief, (3)
     whether there has been substantial continuity of business
     operations, (4) whether the new employer uses the same
     plant, (5) whether he uses the same or substantially the
     same work force, (6) whether he uses the same or
     substantially the same supervisory personnel, (7) whether
     the same jobs exist under substantially the same working
     conditions, (8) whether he uses the same machinery,
     equipment and methods of production and (9) whether he
     produces the same products . . . .

Secretary of Labor on behalf of Keene v. Mullins, 888 F.2d
1448, 1453-1454 and n.15 (D.C. Cir. 1989), quoting EEOC v.
MacMillan Bloedel Containers, Inc., 503 F.2d 1086, 1094 (6th
Cir. 1974).

     In these circumstances, I deem it appropriate to remand this
case to the ALJ in order to ascertain whether Rowland, a pro
se complainant, intends to raise the successorship issues and
to proceed against the present employer.  If so, the ALJ is
directed to notify that employer of Rowland's intent and to
conduct the necessary further proceedings.  Accordingly, this
case IS REMANDED.

     SO ORDERED.

                                        ROBERT B. REICH
                                        Secretary of Labor


Washington, D.C.

[ENDNOTES]



[PAGE 3]
[1] According to OSHA's investigation report, Wayne Elam
initially operated the mattress manufacturing and distribution
business under the name of Elam Mattress Company.  In 1991, Elam
sold the business to Marion Turner who renamed it Easy Rest
Bedding, Inc.  The business continued without change in
employees, product or supervision, except that Elam stayed on as
a salesman.  Elam also was aware of Rowland's 1992 STAA work
refusal which occurred during Turner's ownership of the business.
See, e.g., Dep't of Sec. Tr. at 5-8.  On August 6, 1993,
Turner expired as the result of a self-inflicted gunshot wound to
the head and the business reverted to Elam.