ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH,
PROSECUTING PARTY,
AND
MARTIN E. RESNIKOFF,
COMPLAINANT,
v.
ALBAUGH TRUCK LINE INC.,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
On April 12, 1991, the Administrative Law
Judge (ALJ) issued a [Recommended] Decision and Order (R.D. and
O.) in this case, finding that Respondent violated the employee
protection provision of the Surface Transportation Assistance Act
of 1982 (STAA), 49 U.S.C. app. § 2305 (1988). Pursuant to
the regulations implementing the STAA, the ALJ's decision is now
before me for review. See 29 C.F.R. § 1978.109(a)
(1990).
The ALJ found that Complainant engaged in
protected conduct under the STAA when he refused to accept an
August 15, 1990, work assignment that would have violated the
Department of Transportation (DOT) regulations governing maximum
driving and on-duty time, 49 C.F.R. § 395.3(a) (1989). The
ALJ further found that Respondent discharged and discriminated
against Complainant solely in retaliation for that protected
conduct, and thereby violated Section 2305 of the STAA. As a
remedy for the violation, the ALJ recommends that I order
Respondent to reinstate Complainant and pay him certain back pay
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and attorney fees.
Complainant and the Assistant Secretary have
filed statements before me, as permitted by 29 C.F.R. §
1978.109(c)(2), urging that the ALJ's recommended decision be
upheld in all respects. Respondent has not filed any response to
the recommended decision, however, its position before the ALJ
was two-fold: (1) that Complainant was not discharged, and (2)
that Complainant was not dispatched to drive in violation of the
DOT regulation at Section 395.3(a). According to Respondent,
Complainant voluntarily drove excessive hours on August 14, 1990;
then refused to drive on August 15, 1990, as instructed; and
failed to call in for daily dispatches thereafter. Respondent
also argued alternatively that Complainant failed to mitigate his
damages and is, therefore, not entitled to back pay.
The ALJ's decision is thorough, well
documented and reflects careful attention to the significant
details of this case. Based on a review of the entire record, I
find that the ALJ's factual findings, including his credibility
determinations, are supported by substantial evidence.
Specifically, I find that the ALJ's decision to accept
Complainant's version of the relevant events and reject
Respondent's contrary assertions is fully explained and neither
conflicts with the clear preponderance of the evidence nor is
patently unreasonable. Consequently, those findings of fact are
conclusive, and are dispositive of this case. See 29
C.F.R. § 1978.109(c)(3); Ertel v. Giroux Brothers
Transportation. Inc., Case No. 88-STA-24, Sec. Final Dec. and
Order, Feb. 16, 1989, slip op. at 12 n.7; Price v. E & M
Express Company Inc., Case No. 87-STA-4, Sec. Dec. and Order,
Nov. 23, 1987, slip op. at 2.
Although the ALJ did not explicitly analyze
the issues in terms of the applicable burdens of proof,
seegenerallyRoadway Exp.. Inc. v. Brook,
830 F.2d 179, 181 n.6 (llth Cir. 1987); McGavock v. Elbar.
Inc., Case No. 86-STA-5, Sec. Final Dec. and Order, July 9,
1986, slip op. at 10-11, his findings support the conclusion that
Complainant established a prima facie case of retaliatory
discharge and Respondent failed to articulate a legitimate,
nondiscriminatory reason for its action.
Additionally, I have carefully considered the
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evidence and the arguments regarding Complainant's damages, and I
find no reason to disturb the ALJ's findings.
Accordingly, I accept the ALJ's R.D. and O.,
and relief IS GRANTED as explicitly set forth in the ALJ's R.D.
and O. at 20-21.