DATE: December 30, 1991
CASE NO. 91-STA-4

IN THE MATTER OF

ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH,
    PROSECUTING PARTY,

    AND

JERRY D. WILSON,
    COMPLAINANT,

    v.

BOLIN ASSOCIATES, INC.,
    RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

    Before me for review is the Recommended Decision and Order (R.D. and O.) of the Administrative Law Judge (ALJ), dated September 6, 1991, in this case which arises under the employee protection provision of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1988).

    After discussing the parties' arguments and the evidence of record, including the testimony adduced at the hearing, the ALJ first found that Complainant established a prima facie case of retaliatory discharge under the STAA. The ALJ further found that while Respondent provided legitimate reasons for the discharge, the evidence also indicates that Respondent had dual motives for the discharge, and Respondent failed to carry its burden to show that Complainant would have been discharged even in the absence of his protected conduct. The ALJ, therefore, recommended that Complainant be awarded back pay with interest. Additionally, the ALJ accepted the Assistant Secretary's argument and added Russell C. Bolin, II, (Bolin), the sole shareholder and chief executive officer of the now defunct

Respondent corporation, as a party, jointly and severally liable for the award to Complainant.

    As permitted by the regulations implementing the STAA, see 29 C.F.R. § 1978.109(c)(2) (1991), the Assistant Secretary and Respondent have filed briefs in response to the ALJ's R.D. and O. Respondent principally argues that the ALJ erred in joining Bolin as a party. Respondent maintains that Bolin is a mere employee of the corporation and cannot be held liable for the acts of the corporation, nor, Respondent continues, is piercing the corporate veil warranted here. Respondent also argues that it would be unjust to add Bolin as a party at this juncture. Finally, Respondent summarily asserts that although it had legitimate reasons to terminate Complainant's employment, the evidence shows that Complainant quit his job.

    The Assistant Secretary requests that I uphold the ALJ's findings that Complainant was discharged in violation of the STAA and that Bolin is individually liable for Complainant's damages. The Assistant Secretary contends, however, that Bolin's liability flows from the express language of the STAA, and that it is unnecessary to pierce the corporate veil.

    After reviewing the entire record, I find that the ALJ's credibility determinations and factual findings are supported by substantial evidence. Accordingly, those findings are accepted as conclusive. See 29 C.F.R. § 1978.109(c)(3).¹ I also agree with the ALJ's conclusions that Complainant was unlawfully discharged and that Respondent and/or Bolin, individually, must pay back wages and interest. The ALJ's conclusions are hereby accepted, except as expressly modified or embellished below.

    I first emphasize that Complainant's refusal to further move his truck to a parking lot, or to "cripple" it back to Respondent's office, was protected activity under the STAA. Because the truck's brakes were defective, Transcript (T.) at 211, operating the truck would have violated a federal regulation applicable to commercial motor vehicle safety. See 49 C.F.R. § 392.7 (1989). Thus, Complainant's refusal to further move the truck clearly

constituted protected conduct under the first "work refusal" circumstance of Section 2305(b). LeBlanc v. Foqleman Truck Lines. Inc., Case No. 89-STA-8, Sec. Dec. and Order of Remand, Dec. 20, 1989, slip op. at 2-4, aff'd, No. 90-4114 (5th Cir. Apr. 17, 1991). It is, therefore, unnecessary to decide whether Complainant also engaged in protected conduct under the second work refusal circumstance of Section 2305(b), i.e., the reasonable apprehension" circumstance.²

    The ALJ's remaining conclusions on the merits of Complainant's claim are wholly consistent with applicable law. In sum, the final components of a prima facie case are satisfied by Respondent's admission that it was aware of the protected activity, T. at 186, and by the near simultaneity of the protected conduct and the discharge, which raises an inference of likely causation. See Moon v. Transport Drivers. Inc., 836 F.2d 226, 229 (6th Cir. 1987). Moreover, I agree that this discharge resulted from a mixture of legitimate and illegitimate considerations, and Respondent failed to present any evidence sufficient to avoid a finding of liability. See R.D. and O. at 15-18; Price Waterhouse v. Hopkins, U.S. , 109 S. Ct. 1775, 1787-95 (1989).

    Turning to the ALJ's ruling allowing an amendment to include Bolin, individually, as a party, I initially add that the regulation at 29 C.F.R. § 18.5(e) (1991) provides, in pertinent part, that the ALJ may allow appropriate amendments upon such conditions as are necessary to avoid prejudicing the public interest and the rights of the parties, where the amendment is reasonably within the scope of the original complaint. I find that the amendment to add Bolin as a party was reasonably within the scope of the original complaint, which specifically challenged Bolin's individual employment decision. Further, inasmuch as Bolin received notice from the outset of this case and participated in the investigation and all proceedings, the amendment is proper and is consistent with cases arising under the Fed. R. Civ. P. 15, to the extent that that rule is applicable pursuant to 29 C.F.R. § 18.1(a). See, e.g., Barkins v. International Inns Inc., 825 F.2d 905, 907 (5th Cir. 1987); Itell Capital Corp. v. Cups Coal Co.. Inc., 707 F.2d 1253, 1258 (llth Cir. 1983); Serrano v. Collazo Torres , 650 F.

¹I specifically note that the ALJ's finding that Complainant was discharged by Respondent is fully explained and supported. While Respondent has proffered conflicting evidence on this issue, I am most persuaded by its letter, written May 16, 1990, in which it admits firing Complainant. See Complainant's Exhibit 7. The incident in question occurred on April 28, 1990.

²Although the ALJ found that Complainant's refusal was additionally protected under the "reasonable apprehension" circumstance, he did not discuss whether Complainant proved that he sought, and was unable to obtain, correction of the unsafe condition, as is required for protection under that ground. See generally Hadley v. Southeast Cooperative Service Co., Case No. 86-STA-24, Sec. Final Dec. and Order, June 28, 1991, slip op. at 3-4.