DATE:  September 29, 1993
CASE NO. 93-STA-6

IN THE MATTER OF

ASSISTANT SECRETARY OF LABOR FOR
OCCUPATION SAFETY AND HEALTH,

          PROSECUTING PARTY,

     and

JAMES L. ANDERSON,

          COMPLAINANT,

     v.

JONICK AND COMPANY, INC.,

     RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                            DECISION AND ORDER

     Before me for review is the July 6, 1993, Recommended
Decision and Order (R.D. and O.) of the Administrative Law Judge
(ALJ) in this case arising under Section 405, the employee
protection provision, of the Surface Transportation Assistance
Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1988).  The ALJ
found that Respondent Jonick and Company (Jonick) violated the
STAA when it discharged Complainant James Anderson for refusing
to drive an overweight vehicle.  The parties have filed briefs
before me.
     The ALJ's findings of fact, R.D. and O. at 3-12, are
supported by substantial evidence on the record taken as a whole,
and therefore are conclusive.  See 29 C.F.R. §
1978.109(c).  The ALJ properly applied the evidence to the law. 
I find that Anderson established that Jonick discharged him
because he 
[PAGE 2]
refused to operate an overweight vehicle. [1]   Accordingly, I
affirm the ALJ's conclusion that Jonick violated the STAA when it
discharged Anderson.  R.D. and O. at 14.  I adopt the appended
ALJ's decision, except for the absence of interest on the back
pay award, as explained below.
     Secretarial decisions award interest on back pay under the
STAA calculated in accordance with 26 U.S.C. § 6621 (1988),
which specifies the rate for use in computing interest charged on
underpayment of Federal taxes.  Assistant Secretary and
Phillips v. MJB Contractors, Case No. 92-STA-00022, Final
Dec. and Order, Oct. 6, 1992, slip op. at 4 and cases there
cited.  Therefore, I will award such interest on the back pay
amount in this case. [2] 
                                   ORDER
     Respondent Jonick and Company shall pay Complainant back pay
from December 12, 1991 through April 5, 1992 at the rate of
$509.27 per week, plus full benefits normally paid by Respondent
including, but not limited to, contributions to Complainant's
401(k) retirement plan at $24.00 per week.  Respondent shall pay
Complainant back pay from April 6, 1992 through December 4, 1992
at the rate of $166.24 per week.  Interest shall be calculated on
the full amount of back pay owed pursuant to 26 U.S.C. §
6621.
     SO ORDERED.

                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C. 



[ENDNOTES]
           
[1]  The ALJ correctly noted that the burdens of proof under the
STAA have been adopted from decisions under Title VII of the
Civil Rights Act of 1964, such as Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248 (1981).  R.D. and O. at 12-
13.  The Supreme Court's recent decision in St. Mary's Honor
Center v. Hicks, No. 92-602, 1993 U.S. LEXIS 4401 (U.S. June
25, 1993), clarifies that the plaintiff in a Title VII case has
the burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff on an
impermissible basis.  I find that Anderson has met that burden 
in this case.

[2]   The Acting Assistant Secretary noted (Brief at 27 n.27)
that a 1991 W-2 form (Ex. 16) shows that Anderson earned from Jonick
average weekly gross pay of $465.  I disagree.  Rather, I find
that the W-2 form establishes that Anderson earned average weekly
gross pay of $509 in 1991 ($25,464 divided by 50 weeks).  I
therefore agree with the ALJ's calculation of back pay using the
$509.27 figure.