DATE:  March 16, 1995
CASE NO. 93-STA-31


IN THE MATTER OF

GREGORY A. DUTILE,

          COMPLAINANT,

     v.

TIGHE TRUCKING, INC.,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR

                               REMAND ORDER

     Respondent Tighe Trucking, Inc. (Tighe) seeks
reconsideration of the October 31, 1994, Final Decision and Order
(Final Decision) issued in this case concerning Complainant
Gregory Dutile's complaint that Tighe violated the employee
protection provision of the Surface Transportation Assistance Act
of 1982 (STAA), 49 U.S.C.A. § 31105 (West 1994).  Although I
deny the request for reconsideration, I will remand this case to
the Administrative Law Judge (ALJ) for further proceedings and a
supplemental recommended decision establishing specific amounts
owed pursuant to the remedies ordered in the Final Decision.
                           PROCEDURAL BACKGROUND
     Earlier I found that Tighe violated the STAA when it
discharged Dutile from his employment as a truck driver.  
Nov. 29, 1993 Decision and Order.  A later order remanded the
case to the ALJ for calculation of the amount of back pay and
interest owed to Dutile.  March 30, 1994 Order.  
     On remand, the ALJ issued a recommended decision setting
forth the amount of back pay and other benefits that Tighe owes
to Dutile.  July 2, 1994 Recommended Decision and Order 
[PAGE 2]
(Recommended Decision).  On review of the Recommended Decision, I
issued the Final Decision affirming the recommended amount of
back pay, 401(k) plan contributions, and the expert witness fee
that Tighe is required to pay to Dutile.  The Final Decision also
ordered Tighe to restore such health and welfare benefits as
affect Complainant's entitlement to benefits after his discharge. 
     While the ALJ's recommended decision was pending before me,
the ALJ issued, on August 6, 1994, a Recommended Decision and
Order on Motion for Reconsideration (Revised Recommended
Decision).  The ALJ's office inadvertently did not forward the
Revised Recommended Decision to me and I was unaware of its
existence.   The Revised Recommended Decision altered the amount
of 401(k) plan contributions that Tighe owes and found that
Dutile was not entitled to payment of any health and welfare
benefits.  Tighe now seeks reconsideration of the Final Decision
in light of the Revised Recommended Decision. [1] 
                                 ANALYSIS
     I. Reconsideration Denied
     Even if the Revised Recommended Decision had been promptly
forwarded to me it would have been declared a nullity in the
Final Decision.  The ALJ did not cite any authority for issuing a
revised recommended decision concerning the same issues covered
by an earlier recommended decision that was pending before me,
and I can find none.  Compare Hufstetler v. Roadway
Express, Inc., Case No. 85-STA-8, Final Dec. and Ord., Aug.
21, 1986, slip op. at 3 (Secretary ordered ALJ to issue
supplemental recommended decision in light of reconstituted
record), aff'd sub nom. Roadway Express, Inc. v.
Brock, 830 F.2d 179 (11th Cir. 1987).
     The regulations implementing the STAA contemplate that an
ALJ will not take action while his recommended decision is
awaiting the Secretary's final order.  Pursuant to 29
C.F.R.  § 1978.109(b) (1994):
     The administrative law judge'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 named person. 
     All other portions of the judge's order are stayed
     pending review by the Secretary.  (Emphasis added).

In this case, the Recommended Decision did not order
reinstatement.  Thus, the entire Recommended Decision was stayed
while the case was pending before the Secretary, and the ALJ did
not have authority to reconsider and amend it.  Therefore, I will
not reconsider the Final Decision in light of the unauthorized
recommended decision.
     In addition, I have little sympathy for Tighe's argument
that the ALJ erred in the Recommended Decision since Tighe did 
[PAGE 3]
not timely file a brief in response to the ALJ's invitation,
Recommended Decision at 3, but rather submitted its argument only 
after the ALJ had issued the Recommended Decision.  
     II. Remand Order
     On the current record I am unable to ascertain the exact
measure of 401(k) plan contributions and health and welfare
benefits owed pursuant to the Final Decision.  The inability to
determine the exact dollar amount convinces me that the best
recourse is to remand this case once again to the ALJ to reopen
the record and afford the parties the opportunity to supplement
the record with sworn statements or testimony concerning Dutile's
entitlement to payment of 401(k) plan contributions and to health
and welfare benefits, if any. [2] 
     I will give precise instructions concerning the remand to
promote the creation of a complete record and to permit
calculation of the exact dollar amount that will make Dutile
whole.
          A. 401(k) Contributions
     The Final Decision ordered Tighe "to restore, on behalf of
Complainant, all contributions to the 401(k) plan to which
Complainant would have been entitled had he not been discharged." 
Dutile did not seek reinstatement and will not return to work at
Tighe.  The 401(k) plan account for Dutile's benefit apparently
is closed and Tighe has attempted to pay contributions directly
to Dutile.  Under the circumstances of this case, I now find that
payment of the 401(k) plan contributions should be made directly
to Dutile.
     Concerning the dollar amount of 401(k) contributions owed to
Dutile, on remand Tighe shall be required to present to the ALJ
competent, sworn evidence [3]  on the amount of contributions it
would have made to Dutile's account pursuant to its established
401(k) plan, from December 24, 1992 (date of discharge) through
the date of tender of the correct amount of plan contributions. 
If, as Dutile states, [4]  the amount of vesting under Tighe's
retirement plan increased with the duration of employment, Dutile
will be entitled to such increases in vesting as would have
occurred had he not been discharged.  Tighe may not rely on an
unlawful discharge to reduce a payment that is based upon any
standard increases in vesting.  See Office of Federal
Contract Compliance Programs v. Mountain States Bell Tel.
Co., Case No. 87-OFC-25, Order Denying Motion to Strike,
etc., Aug. 25, 1994, slip op. at 7 (discriminatee entitled to
merit pay increases she reasonably would have received absent
discrimination).
     In reliance on the Revised Recommended Decision, Tighe
tendered to Dutile a check for $611.88, representing payment of
$436.88 in 401(k) plan contributions and $175 for the expert
witness fee. [5]   On remand, if the ALJ determines that the 
[PAGE 4]
correct amount of plan contributions owed to Dutile is $436.88 or
less, the correct cut off point for 401(k) plan contributions is
the date of the original tender of $436.88 in August 1994.  If,
on the other hand, the ALJ determines that Tighe owes more than
$436.88 in plan contributions, the cut off for 401(k)
contributions is the date of tender of the full amount owed.
          B. Health and Welfare Benefits
     Quoting Hufstetler, I explained in the Final
Decision that a successful STAA complainant "has no personal
entitlement to the amount that would have been paid as health and
welfare benefits" had he not been discharged.  Consequently, I
ordered Tighe to "restore, on behalf of Complainant, such health
and welfare benefits as affect Complainant's entitlement to
benefits from the date of discharge until the date of compliance
with this order."  Final Decision and Order at 6.  Differences
between the situation here and that in Hufstetler have now
convinced me that any reimbursements for health care expenses
should be made directly to Dutile, if he already has paid the
charges, or to the health care provider if not already paid.
     The complainant in Hufstetler was reinstated to his
former position as a truck driver.  See Brock v.
Roadway Express, Inc., 481 U.S. 252 (1987) (concerning
temporary order to reinstate Hufstetler).  In that case,
Hufstetler's unlawful discharge caused a hiatus in his coverage
under the union health and welfare plan.  Rather than order the
trucking company to pay directly to Hufstetler the amount the
company would have paid into the health and welfare fund, the
Secretary ordered the company to restore payments to the fund
itself, to the extent such restoration was necessary to provide
coverage for any out of pocket expenses Hufstetler incurred for
health care during the hiatus in his coverage. 
Hufstetler, slip op. at 48-49.  The clear goal in
Hufstetler was to ensure that complainant would be
reimbursed by the health and welfare fund for any extra health
care expenses the complainant bore because of the unlawful
discharge.
     Tighe similarly should be liable for health care expenses
incurred that would have been covered by the health benefit plan
if Dutile's employment had continued after December 24, 1992.  In
order for the ALJ to determine if Tighe owes money for health
care costs, the parties must introduce competent evidence as
explained below.
     The ALJ must resolve whether Dutile eventually would have
been covered by Tighe's health benefit plan had he not been
discharged on December 24, 1992.  The parties' unsworn statements
conflict on this issue.  On remand, the ALJ shall require
competent, sworn evidence concerning whether, prior to his
discharge, Dutile had taken the required steps to be covered 
[PAGE 5]
under Tighe's health benefit plan.  If, prior to discharge,
Dutile had taken the steps necessary to opt into plan coverage,
but the coverage did not go into effect because of his discharge,
Tighe would be liable for health care expenses incurred.  Opting
into a health plan usually requires some paperwork.  On remand,
the parties shall be required to produce any such papers relevant
to Dutile.  If the evidence reveals that by December 24, 1992
Dutile had not opted into the health plan, Tighe will not be
responsible for paying any of Dutile's health care expenses.
     Determining health plan coverage is not the end of the
inquiry.  If the ALJ determines that plan coverage would have
been in effect but for the unlawful termination, he shall require
Tighe to pay only those expenses that Dutile demonstrates
actually occurred after the date coverage would have taken
effect.  Thus, if Dutile paid premiums for other health care
coverage to replace that which did not take effect due to his
unlawful termination, Tighe would be required to repay the
premiums Dutile paid between December 25, 1992 and the future
date of compliance with the payment order.  If Dutile had no
other health insurance and incurred health care expenses that the
plan would have covered, Tighe shall be required to pay the
amount of such expenses.  Reimbursement of those expenses shall
be made directly to Dutile if already paid, or to the health care
provider if not already paid.
                                CONCLUSION
     Tighe's request for reconsideration is denied.  The case is
REMANDED to the ALJ for further proceedings consistent with this
decision and for a supplemental recommended decision establishing
the amount Tighe owes concerning 401(k) plan contributions, and
health expenses, if any.
     SO ORDERED.

                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.


[ENDNOTES]
           
[1] 
  The Secretary learned of the Revised Recommended Decision in
January 1995, three months after the Final Decision was issued.

[2] 
  Normally, the Secretary may enforce a final decision and order
in the United States District Court.  See 29 C.F.R. 
§ 1978.113 (1994).  However, in order to be enforced the
amount owed must be ascertainable and on the current record that
is not the case.

[3] 
  The ALJ may elect to require live testimony or may authorize
the parties to present evidence in the form of written statements
made under oath.  Statements of counsel are not competent, sworn
evidence.  

[4] 
  See July 26, 1994 Letter from Dutile to the ALJ.

[5] 
  Dutile rejected the tendered payment.  It is undisputed that
Tighe owes the $175 witness fee.