DATE:  October 21, 1994
CASE NO. 94-STA-26


IN THE MATTER OF

RICHARD SICKAU,
          COMPLAINANT,

     v.

BULKMATIC TRANSPORT CO.,
          RESPONDENT.

BEFORE:  THE SECRETARY OF LABOR

                            DECISION AND ORDER

     Truck driver Richard Sickau alleged that Respondent
Bulkmatic Transport Co. (Bulkmatic) violated the employee
protection provision of the Surface Transportation Assistance Act
of 1982 (STAA), 49 U.S.C. app. § 2305 (1988), when it
discharged him for refusing to drive.  In a Recommended Decision
and Order (R.D. and O.), the Administrative Law Judge (ALJ) found
that Sickau established a prima facie case that Bulkmatic fired
him for refusing to take a load because he was too fatigued and
lacked sufficient hours to make the run. [1]   The ALJ
discredited the reasons Bulkmatic gave for the discharge and
found that Bulkmatic violated the STAA when it discharged Sickau.
     The ALJ's findings of fact, R.D. and O. at 2, are supported
by the substantial record evidence, and therefore are conclusive. 
29 C.F.R. § 1978.109(c)(3).  I adopt the ALJ's credibility
assessments, which likewise are supported by the record.  
     The ALJ correctly found that Sickau established a prima
facie case, that Bulkmatic proffered legitimate reasons for the
discharge, and that Sickau proved that the reasons Bulkmatic gave
[PAGE 2]
for discharging him were not credible.  I also find that Sickau
persuaded that Bulkmatic fired him for an impermissible reason,
his refusal to drive based on fatigue and working too many hours.
Therefore I agree with and adopt the appended Recommended
Decision and Order.  
     Concerning the remedies recommended by the ALJ, I find that
Sickau is entitled to payment of interest on the back pay award. 
See, e.g., Doyle v. Rich Transport, Inc.,
Case No. 93-STA-17, Dec. and Order, Apr. 1, 1994, slip op. at 5
par.2.  In addition to payment of an attorney fee, a successful
complainant is entitled to reimbursement of the costs in bringing
and prosecuting a complainant.   49 U.S.C. app.§ 2305(c)(2)(B)
 (Secretary of Labor "may assess against the person against whom 
the order is issued a sum equal to the aggregate amount of all costs
 and expenses (including attorney's fees) reasonably incurred . . . in 
connection with, the bringing of the complaint upon which the order 
was issued").  Therefore I will order Bulkmatic to pay costs in 
addition to an attorney fee.
                                   ORDER
     1. Respondent shall pay Complainant back pay in the amount
of $12,708.43 plus interest calculated pursuant to 26 U.S.C. 
§ 6621 (rate for underpayment of Federal income tax).
     2. Respondent shall pay Complainant's attorney fee and the
costs reasonably incurred in the preparation and litigation of
this case.  
     3. If the parties do not agree on the amount of the attorney
fee and costs, they shall so inform the Administrative Law Judge,
who will afford Respondent the opportunity to object in writing
to any portion of the costs or fee.  In such case, the ALJ shall
issue a recommended decision and order establishing the amount of
costs and fee to which Complainant is entitled.
     SO ORDERED.

                            ROBERT B. REICH
                            Secretary of Labor

Washington, D.C.



[ENDNOTES]
           
[1] 
  A regulation of the Department of Transportation, 49 C.F.R. 
§ 395.3, establishes maximum driving and on-duty time for
truck drivers.