(415) 974-0514
8-454-0514

CASE NOS: 86-CAA-3, 86-CAA-4, 86-CAA-5

In the Matter of

BRUCE G. JOHNSON
JOHN J. HERNANDEZ
MARY ANN BRADLEY
    Complainants

    v.

OLD DOMINION SECURITY
    Employer

    This consolidated "whistle blower" proceeding under the Toxic Substances Control Act and the Clean Air Act was heard by the undersigned on August 4, 1986 in San Diego, California. The Recommended Decision and Order was issued on October 1, 1986. Respondent's Counsel submitted a Petition for Clarification and Reconsideration on October 15, 1986.

    Respondent raises five issues for clarification or reconsideration, with the first issue regarding clarification of Respondent's duties concerning Complainants' reinstatement to their former employment. Respondent asserts that Complainants may be denied security clearance in the future. Respondents therefore request an advisory opinion on speculative facts totally irrelevant to the case. Since said irrelevant issue is not germane to this case, this request for clarification is accordingly denied.

    Respondent additionally request clarification of whether the Court's Decision overrules Respondent's policy requiring security guards to have their own personal vehicle. This is also denied upon the very same grounds.

    Respondent attempts to raise a second issue by requesting a further explanation of the Court's findings of Employer's discriminatory motivations, and is merely an attempt to reargue an issue that was clearly resolved in the original Decision and Order. Said request is hereby denied.

    The third issue that Respondent raises regards the Complainants' health concerns about hazards on the employment premises. This issue was also fully addressed in the Decision and Order, notwithstanding Respondent's contentions. The cases cited by Respondent are totally inapplicable to the established facts of this case and do not require reconsideration, said request is therefore denied.

    The fourth issue concerning Complainant's alleged abandonment of their employment was also fully discussed and rejected when the undersigned found that Complainants were constructively terminated from their employment. Accordingly, said request for clarification is hereby denied.

    The fifth issue concerns a correction of the dates that two Complainants were employed by subsequent employers. In terms of Complainant Hernandez, any conflict of evidence was resolved in favor of the Complainant. Moreover, Respondent's submission of post-hearing evidence by means of an affidavit of a subsequent employer was not authorized and was never admitted into evidence of record. In terms of Complainant Johnson, it appears that the testimony of Mr. Johnson does indeed support a finding of re-

employment on April 29th and the finding of re-employment on April 22nd is hereby vacated. This is based on the representation of Counsel for Employer and in reliance thereof since the transcript is no longer in my possession. Therefore, Mr. Johnson is due back pay from February 10, 1986 to April 29, 1986 in the amount of ,600.00 per month for 2-2/3 months and is then due $600.00 per month from April 29, 1986 and continuing, to reflect any difference in wages from his current occupation.

    1. The October 1, 1986 Recommended Decision and Order is hereby amended to reflect the fact that Complainant Johnson was re-employed on April 29, 1986 instead of April 22, 1986. Accordingly, paragraph l(a) of said Order is amended and Respondent shall pay to Mr. Johnson $4,266.66 (2-2/3 months) for lost wages. Paragraph 1(b) of said Order is amended and Respondent shall pay to Mr. Johnson $600.00 per month for loss of pay from April 29, 1986 and continuing until Respondent offers him reinstatement.

    2. All of Respondent's other requests for clarification or reconsideration are hereby denied.

    3. The October 1, 1986 Recommended Decision and Order shall remain as stated except as otherwise provided herein.

       HENRY B. LASKY
       Administrative Law Judge

Dated: 21 OCT 1986

San Francisco, California

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