U.S. Department of Labor Administrative Review Board
200 Constitution Ave, NW
Washington, DC 20210
ARB CASE NO. 99-001
ALJ CASE NO. 98-STA-2
DATE: January 29, 1999
In the Matter of:
MICHAEL MADONIA,
COMPLAINANT,
v.
DOMINICK'S FINER FOOD, INC.,
and
MAVO LEASING, INC.,
RESPONDENTS.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant: Brian F. DeCook, Esq., Olympia Fields, Illinois
For Respondent Dominick's Finer Food, Inc.: Paul F. Gleeson, Esq., James E. Bayles, Jr.,
Vedder, Price, Kaufman & Kammholz, Chicago, Illinois
ORDER REMANDING FOR CONSIDERATION OF NEW
EVIDENCE, AND VACATING ORDER OF REINSTATEMENT
This case arises under Section 405 of the Surface Transportation Assistance
Act of 1982 (STAA), 49 U.S.C. §31105 (1994), as amended. On October 5, 1998, the
Administrative Law Judge (ALJ) issued a Recommended Decision and Order (R. D. & O. ) finding
[Page 2]
that Dominick's Finer Foods, Inc., and Mavo Leasing, Inc. (Respondents), violated the employee
protection provisions of STAA by terminating Michael Madonia (Madonia or Complainant) in part
because of his protected activity. As a remedy for the violation, the ALJ ordered, inter alia,
that Respondents reinstate Complainant to his position as a truck driver.
On October 21, 1998, Respondents moved this Board to remand the case to
the ALJ for (1) reopening the record to admit new evidence, (2) reconsideration of the R. D. & O.
based on the new evidence, and (3) a stay of the reinstatement order pending reconsideration.1 In his response filed on November 9, 1998,
Complainant agreed to the admission of evidence but opposed remanding the matter to the ALJ.2 Complainant's response did not address the
reinstatement issue.
1 Dominick's motion also
requested an extension of time for filing briefs with this Board. By order dated October 29, 1998,
we stayed until further notice our earlier-issued briefing schedule. Additionally, on November 10,
1998, the Board received a motion withdrawing Robert Mann and substituting Brian F. DeCook as
counsel for Complainant. The motion for the substitution is granted.
2 The Board rejects Complainant's
argument that the new evidence can be admitted without remanding the matter to the ALJ. Comp.
Response at 2. The Board's review of a case must be based on the record made before the
ALJ and on the ALJ's recommended decision and order. 29 C.F.R.
§1978.109(c)(1) (1997). Reliance by the Board on exhibits not in the record before the ALJ
is, therefore, not permitted. Boyd v. Belcher Oil Co., Case No. 87-STA-9, Dep.
Sec. Decision and Order, December 2, 1987, at 3.
3 The discovery response was
made by Complainant in his case brought against Respondents under the Americans with Disabilities
Act, 42 U.S.C. §1201 et seq. and was received by Respondent on October 16, 1998.
Resps. Motion at 4. The ALJ's R. D. & O. was issued October 5, 1998.
4 By order dated January 22, 1999,
the ALJ recommended an award of back pay to Complainant. Inasmuch as the Board today remands
for reconsideration the ALJ's finding of liability, the back pay order also shall be reviewed by the
ALJ.