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In the Matter of :
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PATRICK R. WHITE : Date: November 9, 1993
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Complainant : Case No.: 93-STA-28
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v. :
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"Q" TRUCKING COMPANY :
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Respondent :
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BEFORE: RUDOLF L. JANSEN
Administrative Law Judge
RECOMMENDED ORDER OF REMAND
This case was called for hearing on November 3, 1993 in
Lansing, Michigan. Christopher P. Ambrose appeared on behalf of
the Complainant and David J. Houston appeared on behalf of
Employment Services of Michigan, Inc. No appearance was made by
any representative of "Q" Trucking Company nor was "Q" Trucking
Company represented by counsel. Following an earlier postpone-
ment, the matter was scheduled for hearing by way of a Notice of
Hearing and Prehearing Order issued by me on September 2, 1993.
After receiving some documentary materials into evidence,
counsel for the Complainant noted that it was his position that
Employment Services of Michigan, Inc. was not an Employer of
Patrick R. White. Immediately following, Mr. Houston moved that
the case be remanded for further investigation of employment
facts to determine if more than one employer was potentially
liable in this case. Secondly, Mr. Houston raised the question
of a denial of procedural due process of Employment Services
since the regulatory procedures had not been followed as to his
client. No objection was raised to the motion.
[PAGE 2]
I note that the complaint in this case was made only against
"Q" Trucking Company and that the Secretary's Findings letter of
May 4, 1993 was directed only to "Q" Trucking Company. However,
the Secretary's Findings letter clearly makes reference to "Q"
Trucking Company as well as an entity known as Alliance Trans-
port. The record does not disclose the legal relationship of any
of these entities. The Secretary's Findings and preliminary
order issued pursuant to 29 C.F.R. §1978.104 do not make
definitive findings in regard to the potential liability as joint
employers of either Employment Services of Michigan or Alliance
Transport. Those questions must be investigated and determina-
tions made so as to include any potential employers as parties to
this proceeding. The regulations define named person as being
"any group of persons." 29 C.F.R. §1978.101(h). Compelling
the investigation by the Regional Administrator at this point is
authorized by 29 C.F.R. §18.29(a).
The services performed in this case by the Complainant were
apparently all rendered within the states of Michigan and Ohio.
Both of those states lie within the Sixth Federal Judicial
Circuit. Within that circuit, a joint employer can be held
liable under a federal statute where the employer has "knowingly
participated" in the discriminatory conduct. Carrier v.
NLRB, 768 F.2d 778 (6th Cir. 1985). However, the Secretary
has concluded that under the Surface Transportation Assistance
Act, a joint employer which has not knowingly participated in any
violation remains liable for a prevailing complainant's lost
wages. Hubert L. Palmer v. Western Truck Manpower, Inc.,
85-STA-16 (Decision and Order on Remand, March 13, 1992).
Therefore, complete relief cannot be accorded the Complainant
without the joinder of all potential employers. See Fed.
R. Civ. P. 19(a). The Federal Rules of Civil Procedure do apply
to these proceedings. 29 C.F.R. §18.29(a)(8).
Therefore, IT IS RECOMMENDED that this case be remanded to
the Regional Administrator, Occupational, Safety and Health
Administration, Chicago, Illinois for the purpose of concluding
the investigation as to whether Employment Services of Michigan,
Inc. and/or Alliance Transport are jointly liable as employers of
Patrick R. White and therefore, should be treated as parties to
this proceeding.
RUDOLF L. JANSEN
Administrative Law Judge
