ORDER REQUIRING COMPLAINANT TO RESPOND
TO MOTION TO STAY REINSTATEMENT
This case arises under the employee protection provision of the
Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. A. § 31105 (West 1994).
In a Recommended Decision and Order issued April 14, 1997, the Administrative Law Judge (ALJ)
found that Complainant Thomas Dutkiewicz established that Respondent, Clean Harbors
Environmental Services, Inc. (Clean Harbors) violated the STAA when it discharged him. As
relevant here, the ALJ recommended that Clean Harbors be ordered to reinstate Dutkiewicz to his
former position in Connecticut with the same pay and terms and privileges of employment, to pay
back pay until reinstatement or a bona fide offer of reinstatement, and to pay compensatory
damages.
Under the regulations implementing the STAA, "the ALJ's
decision and order concerning whether the reinstatement of a discharged employee is appropriate
shall be effective immediately upon receipt of the decision by the [complainant]. All other portions
of the judge's order are stayed pending review by the [Administrative Review Board]." 29
C.F.R. § 1978.109(b). Clean Harbors has submitted a "Motion to Stay Reinstatement of
Complainant" in which it argues that it should not be required to reinstate Dutkiewicz to a
position in Connecticut while the case is pending review by this Board.
Clean Harbors correctly points out that, on review of the ALJ's
recommended decision, if the Board determines that Dutkiewicz should be reinstated, he will be
made whole by an award of back pay that lasts until he is reinstated. Motion p. 6. Clean Harbors
states that Dutkiewicz is presently living and working in Indiana and argues that, if Dutkiewicz
ultimately
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should not prevail before this Board, "he will have relocated himself, surrendered employment
and will be faced with another termination." Id. Thus, a stay of the reinstatement
order may well be in Dutkiewicz's best interest.
Therefore, Dutkiewicz is ordered to respond to Clean Harbors'
motion and to include in that response his current place of residence and his current employment, if
any. The response should include an analysis of whether Clean Harbors has established the
necessary criteria for granting a stay of the ALJ's order, as outlined in McCafferty v. Centerior
Energy, Case No. 96-ERA-6, ARB Order Denying Stay, Oct. 16, 1997, slip op. at 3 (copy attached).
Accordingly, Complainant shall have 15 days from the date of this
Order to submit a response. The Complainant's response shall be filed with:
Gerald F. Krizan, Esq.
Executive Director
Administrative Review Board
U.S. Department of Labor
200 Constitution Ave., N.W.
Room S-4309
Washington, D.C. 20210
SO ORDERED.
FOR THE ADMINISTRATIVE REVIEW BOARD:
Gerald F. Krizan
Telephone: (202) 219-4728
Facsimile: (202) 219-9315
