DATE:  May 6, 1992
CASE NO. 90-STA-17


IN THE MATTER OF 

ROBERT C. SPINNER,

          COMPLAINANT,

     v.

YELLOW FREIGHT SYSTEM, INC.,

          RESPONDENT,

     and

ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH,

          INTERVENOR.


BEFORE:  THE SECRETARY OF LABOR 


                   ORDER DENYING RESPONDENT'S MOTION TO
                    STRIKE BRIEF, MOTION TO DISQUALIFY
                    ADMINISTRATIVE LAW JUDGE AND STRIKE
                DECISIONS, AND MOTION TO DISMISS PROCEEDING

     Respondent, Yellow Freight System, Inc., moves (1) to strike
the brief of the Assistant Secretary for Occupational Safety and 
Health [1]  as "ultra vires," (2) to disqualify the Administrative 
Law Judge (ALJ) and strike his decisions due to "demonstrated
bias and prejudice," and (3) to dismiss the captioned proceeding
due to an unlawful combination of administrative functions within
the Department of Labor.  
     1.  Motion to strike brief
     Upon investigation of Complainant's discrimination
complaint, the Assistant Secretary found reasonable cause to
believe that a violation of the employee protection provision 
of the Surface Transportation Assistance Act of 1982 (STAA), 

[PAGE 2]
49 U.S.C. app. § 2305 (1988), had occurred and issued a
preliminary order of reinstatement.  29 C.F.R. § 1978.104
(1991).  The Assistant Secretary subsequently rescinded the
finding, postponed further determination pending the outcome of
an arbitration proceeding under a collective bargaining
agreement, and ultimately deferred to the outcome of the
grievance denial.  29 C.F.R. § 1978.112.  Complainant 
objected to the Assistant Secretary's determination, 29 C.F.R. 
§ 1978.105, and the STAA proceeding was heard by a 
Labor Department ALJ who found that a violation had occurred 
and ordered Complainant reinstated. 

29 C.F.R. § 1978.109(a) and (b).  The Office of the
Solicitor, Occupational Safety and Health Division, which is
authorized to litigate cases arising under statutes enforced by
the Assistant Secretary, 55 Fed. Reg. 9,033 (March 9, 1990) (par.
5(b)), filed a brief during pendency of the case before the
Secretary of Labor for issuance of a final decision.  29 C.F.R.
§ 1978.109(c). 
     My reading of the filings before me is that the Assistant
Secretary, through the Solicitor, states that the earlier
deferral determination was "premature and inappropriate," that
intervention now is warranted, that the Assistant Secretary is
intervening as a party in filing a brief, and that the Assistant
Secretary "concurs" in the filing of the brief.  Asst. Sec.
3/4/92 Brief at 2, 9 n.9; Asst. Sec. 4/2/92 Reply at 3; Buckley
Affidavit at 2.  
     The parties in a case may file briefs before the Secretary. 
29 C.F.R. § 1978.109(c)(2).  "The Assistant Secretary may as
of right intervene as a party at any time in [STAA] proceedings 
. . . ."  29 C.F.R. § 1978.107(b).  The office established
by the Assistant Secretary for administering the STAA program has
ratified the filing of the Assistant Secretary's brief by the
Solicitor.  Buckley Affidavit at 2.  Accordingly, the Assistant
Secretary's brief is received for consideration.  The items
contained in the brief which Respondent asserts misrepresent the
record, Motion to Strike at 2-5, are noted.  
     2.  Motion to disqualify ALJ
     In his January 17, 1992, Decision and Order (D. and O.), the
ALJ denied Respondent's recusal motion.  D. and O. at 12-14. 
See 29 C.F.R. § 18.3(b) (1991).  I agree with this
disposition.  A review of the case record in its entirety reveals
no basis for recusal.  The ALJ did not demonstrate actual bias
against Respondent or prejudge facts adversely to Respondent's
case.  I do not find instances where evidence was excluded
improperly or the parties were precluded from protecting the
record.  In short, Respondent's attorney "was permitted to
present evidence, examine witnesses, argue, and object . . . ." 
Roland M. v. Concord School Committee, 910 F.2d 983, 998
(1st Cir. 1990), cert. denied,     U.S.   
, 111 S. Ct. 1122 (1991).  "When asserted, 
[PAGE 3]
objections were fully considered.  When rejected, explanations
were generally given."  Id.  As to the November 27, 1991,
McMahon affidavit, I find:
     (1)  With regard to contentions advanced at pages 4-10, the
ALJ properly considered the "conspiracy" testimony, determining
that it did not diminish Complainant's credibility as a witness
testifying about the relevant events of late 1988 and 1989.  D.
and O. at 13, par. 2.  Respondent posits the single digit
difference in tractor numbers and the OD-199 mileage notation in
arguing that the ALJ should not have found Complainant's actions
reasonable.  The ALJ is correct, however, that the OD-199 did not
reference tractor No. 4804 and that neither Respondent's
dispatchers nor Complainant had any basis for knowing that the
report actually pertained to the tractor.  Partial Decision and
Order (P.D. and O.) at 10-11; D. and O. at 13.  Moreover, the
proximity in numbers was not dispositive when Respondent employed
a tractor No. 4805 which the frequently erroneous computer
reported as being nearby.  Respondent is correct that notation of
tractor 4804's odometer reading appeared on the OD-199.  The fact
that someone other than Chicago Driver Smith recorded the mileage
does not establish that the vehicle driven and inspected by Smith
was tractor No. 4804.  See P.D. and O. at 12-13; D. and O.
at 7.  In addition, it is questionable that the mileage notation,
by itself, would verify the report for a Department of
Transportation inspector encountered en route to New York.
     (2)  With regard to contentions advanced at pages 10-12, the
ALJ's October 29, 1991, order directing the Assistant Secretary
to order Complainant reinstated was issued following
Complainant's requests and position statements dated August 13,
1991 (letter advising ALJ that Complainant had requested
intervention by Assistant Secretary) and August 15, 1991
(Complainant's reply to stay application).  
     (3)  With regard to contentions advanced at pages 12-13, the
ALJ is accorded latitude in ordering the proceedings, and the
"separate" interview procedure adopted for use in eliciting the
"simulated employment interview" testimony was fair and
impartial.  D. and O. at 13, par. 4; Hearing Transcript (T.)
10/24/91 at 25-31 (alternative "common" or "group" interview
technique would defeat witness sequestration order and interfere
with Complainant's opportunity for cross-examination).  
     (4)  With regard to the contentions advanced at pages 13-19,
the ALJ properly excluded the testimony of Witness Hayward who
was not competent to testify about his employer's hiring
processes.  D. and O. at 13, par. 5.  See T. 10/24/91 at
121-151.  The ALJ is fully empowered to examine witnesses, 29
C.F.R.  § 18.29(a)(2), and his examination of Witness Reed ensured 
a complete hearing record.  The ALJ correctly permitted evidence of

[PAGE 4]
damages once he found that a violation had occurred.  A
complainant is entitled to recover compensatory damages, 
49 U.S.C. app. § 2305(c)(2)(B), and should be accorded a
full and fair opportunity to present his proof.  The ALJ properly
accorded Complainant this opportunity.  D. and O. at 14, par. 6. 
The ALJ's theory in deciding the mitigation issue is legally
cognizable and does not evince lack of impartiality.  
     3.  Motion to dismiss
     Respondent charges a violation of 5 U.S.C. § 554(d)
(1991) as the result of a combination of administrative
functions, in particular that the Assistant Secretary for
Occupational Safety and Health performs "investigative [and]
prosecuting functions" as well as "participate[s] or advise[s] in
the decision, recommended decision, or agency review pursuant to
section 557 
. . . . " [2]   Here, the Assistant Secretary investigated
Complainant's discrimination complaint and issued findings and a
preliminary order.  29 C.F.R. §§ 1978.103, 1978.104. 
See generally, Brock v. Roadway Express,
Inc., 481 U.S. 252 (1987); 55 Fed. Reg. 9,033.  As discussed
supra, the Assistant Secretary ultimately deferred to the
outcome of an arbitration proceeding, thus effectively finding
that Complainant's STAA complaint lacked merit.  Complainant
objected to this finding and requested a hearing before the
Department of Labor Office of Administrative Law Judges, 29
C.F.R. § 1978.106, during which Complainant served as the
prosecuting party.  29 C.F.R. § 1978.107(b).  That hearing
was conducted pursuant to rules appearing at 29 C.F.R. Part 18. 
The Part 18 regulations were issued by the Office of the
Secretary of Labor to govern hearings under a variety of
statutes, Executive orders, and regulations.  48 Fed. Reg. 32,538
(July 15, 1983).  
     After issuance of an ALJ's decision in a STAA proceeding,
the record is reviewed by the Secretary who issues a final
administrative decision.  29 C.F.R. § 1978.109(c).  The
Office of Administrative Appeals "advise[s] and assist[s]" the
Secretary in issuing decisions. [3]   In this case, the Assistant
Secretary intervened as a party before the Secretary, and the
Solicitor filed a brief on behalf of the Assistant Secretary. 
Accordingly, the Assistant Secretary investigates STAA complaints
and may prosecute them, the Solicitor represents the Assistant
Secretary in these functions, and the Secretary and Department
ALJs serve as the adjudicators.  Under this regulatory scheme,
there was no improper combination of functions by the Assistant
Secretary.     Respondent's motions hereby ARE DENIED.  
     SO ORDERED.



                              LYNN MARTIN
                              Secretary of Labor

Washington, D.C.



[ENDNOTES]
           
[1]   An Acting Assistant Secretary has filled the position of
Assistant Secretary during stages in this proceeding.  For
purposes of this Order, I will refer to "the Assistant
Secretary."  

[2]   But see Withrow v. Larkin, 421 U.S. 35, 48-54
and n.16 (1975); Richardson v. Perales, 402 U.S. 389
(1971) (APA Section 
5 expressly inapplicable to "the agency or a member or members 
of the body comprising the agency").

[3]   As described at 55 Fed. Reg. 13,250 (April 9, 1990):

     The Office of Administrative Appeals was established in
     1981 to advise and assist the Secretary and other
     deciding officials of the Department of Labor in the
     preparation and issuance of final agency decisions
     under a number of laws and regulations under which
     administrative proceedings are conducted before the
     Department's administrative law judges (ALJs).  These
     proceedings before ALJs result in ALJ decisions which
     are subject to further review by the Secretary or other
     deciding officials of the Department.  In addition,
     certain decisions by the Wage and Hour Administrator
     may be appealed.