Complainant alleges that Respondent's termination of his employment violated the Act because he was discharged in retaliation for his repeated complaints about safety. Specifically, Complainant alleges that he was terminated as a result of safety complaints he filed with OSHA on June 19, 1998, for performing safety inspections on yard horses, and for "red-tagging" trailers he found to be defective. (TR 14; Complainant's Brief, p. 23)

   Respondent denies that it discharged Complainant for the reasons stated by Complainant. Rather, Respondent contends that Complainant was discharged because he repeatedly violated its rules and disregarded instructions from his supervisors. (TR 30-31; Respondent's Brief, p. 19) Respondent avers that it was not motivated by any protected activity by Complainant.

1. Whether Respondent discharged Complainant in violation of the Act.

2. If so, what is the appropriate remedy.

   Respondent does not controvert that the parties come within the jurisdiction of the Act, and based on the record I so find.

A. Summary of the Evidence

   Respondent is a motor carrier engaged in commercial motor vehicle operations. (Respondent's Answer, p. 1) Complainant was hired by Respondent on May 6, 1989, as a casual

employee, and became a full-time employee on October 3, 1989. (TR 36) Initially, Complainant worked at Respondent's truck terminal facilities in Toledo and North Lima, Ohio. (TR 36-38) In April of 1997, Complainant was transferred to Respondent's Buffalo terminal, located in West Seneca, New York. (TR 44-45) At that location, Complainant worked as a switcher and was represented by Teamsters Local Union No. 357 ("Local 357"). (TR 46)

authorization. The warning letter stated that the trailers Complainant red-tagged were determined to have no defects by a certified mechanic. (CX 18, p. 3) Chris Peter, the relay coordinator who issued the discipline, stated in a note that he had previously instructed Complainant not to perform pre-trip or safety inspections while shuttling trailers. (CX 18, p. 2) On October 20, 1997, Complainant was suspended for one day for taking a trailer out of service. Walker, who issued the discipline, stated that Complainant's actions caused Respondent avoidable cost because the trailer was found to be "within the guidelines." (CX 19) Complainant testified that on October 28, 1997, Tom West, terminal manager, warned him not to red-tag equipment and if Complainant continued to do so, West would see him "out on the streets without a job." (TR 142) On November 7, 1997, Frank Ilacqua, assistant terminal manager, suspended Complainant for five days for taking six trailers out of service by red-tagging them. The suspension letter stated that the trailers were inspected and found to be within the guidelines. (CX 20) On January 14, 1998, Ilacqua suspended Complainant for an additional five days for red-tagging a trailer without receiving authorization from the relay department. (CX 22) Robert Beck, assistant terminal manager, testified that on January 23, 1998, he told Complainant not to perform a complete inspection of equipment while performing purely switching duties. Rather, Beck told Complainant that at those times he should only visually inspect for and report obvious defects. (TR 784; RX 4)

   On June 12, 1998, Complainant visited the OSHA office in Bowmansville, New York and complained that the yard horses were unsafe. (TR 191-93) In response, on June 19, 1998, two OSHA officials and an inspector from the New York Department of Transportation ("NY DOT") visited Respondent's Buffalo terminal. (TR 200-04) Respondent's personnel, Tom West, Ray Tangent, Pat Walker, and Larry Aiello, accompanied the OSHA and NY DOT officials while they inspected Respondent's yard horses. (TR 201, 590) At that time Complainant was operating one of the yard horses and was asked to bring it to the location where the government officials were conducting the inspections. (TR 203) Complainant testified that, at that time, he told the OSHA officials, in the presence of West, Tangent, Walker, and Aiello, that he was the person who had complained to OSHA about the yard horses. (TR 204) Larry Aiello, Roadway's district safety manager, testified that he was the only person present, other than the NY DOT inspector and the two OSHA inspectors, when Complainant stated that he had made the complaints to OSHA. (TR 709)

On June 19, 1998, Walker issued a letter suspending Complainant for ten days for failing to put the trailer behind the garage as instructed and for his "overall work record." Complainant filed a grievance with Local 357 regarding his suspension. (CX 26)

employee . . . has filed a complaint or begun a proceeding related to a violation of a commercial motor vehicle safety regulation, standard, or order, or has testified or will testify in such a proceeding . . . ." 49 U.S.C. § 31105(a) (1994). The regulations of the Federal Highway Administration ("FHWA") define "commercial motor vehicle" as:

any self-propelled or towed vehicle used on public highways in interstate commerce to transport passengers or property when:
(a) The vehicle has a gross vehicle weight rating or gross combination weight rating of 4,537 or more kilograms (10,001 or more pounds); or
(b) The vehicle is designed to transport more than 15 passengers, including the driver; or
(c) The vehicle is used in the transportation of hazardous materials in a quantity requiring placarding under regulations issued by the Secretary under the Hazardous Materials Transportation Act. (49 U.S.C. 5101, et. seq.)

49 C.F.R. 390.5.

   Respondent argues that the yard horses utilized in its terminal are not covered commercial motor vehicles, but stipulated that they weigh more than 10,000 pounds. (Respondent's Brief, p. 14) Therefore, the yard horses come within the definition of commercial motor vehicles if they travel on public highways. "Highways" are defined as "any road, street, or way, whether on public or private property, open to public travel." 49 C.F.R. 390.5. The regulations state that "open to public travel means that the road section is available, except during scheduled periods, extreme weather or emergency conditions, passable by four-wheel standard passenger cars, and open to the general public for use without restrictive gates, prohibitive signs, or regulation other than restrictions based on size, weight, or class of registration." Id. Complainant argues that yard horses are commercial motor vehicles covered by the Federal Motor Carrier Safety Regulations (the "FMCSR") because Respondent's Buffalo terminal is a "highway" as defined by the FHWA. (Respondent's Brief, p. 22) Complainant asserts that the fact that the terminal yard is not restricted by any gate, no signs are posted restricting entry to the public, and he along with other drivers encountered members of the public in the terminal almost on a daily basis support his argument that the Buffalo terminal is a highway. (TR 100-03) I find Complainant's arguments unpersuasive. There is evidence that during the time Complainant was employed at the Buffalo terminal, there was at least one sign which prohibited unauthorized persons and private vehicles from entering the yard. (RX 6) In addition, Complainant conceded that the terminal was enclosed by a chain link fence and that employees entered the terminal through a turnstile gate. (TR 380) Complainant further conceded that people he saw at the terminal could have been there on company business. (TR 381-382) Finally, the FHWA has stated that it "never intended to expand the definition of 'public road' to encompass any roadway only remotely accessible to the public at large." Review of the Federal Motor Carrier Safety Regulations; Regulatory Removals and Substantive Amendments, 63 FR 33254-01 (June 18, 1998). Based on the foregoing, I find that Respondent's Buffalo terminal does not constitute a public highway as defined by the FHWA.

   Complainant also argues that the yard horses "are commercial motor vehicles notwithstanding the fact that they are, for the moment, operating on private property." (Complainant's Brief, p. 18) This contention is tantamount to an argument that there is no private property exception to the FMCSR. In support of this argument, Complainant cites motor carrier cases which establish the jurisdiction of the Interstate Commerce Commission ("ICC") to regulate the qualifications and hours of service for employees affecting the safety of commercial motor vehicles. Jurisdiction Over Employees of Motor Carriers (Ex Parte No. MC-28), 13 M.C.C. 481, 1 Fed. Carrier Cases (CCH) ¶ 7344.04 (1939); Maximum Hours of Service of Motor Carrier Employees, (Ex Parte No. MC-2), 28 M.C.C. 125, 2 Fed. Carrier Cases (CCH) ¶ 7700.01 (1941); Levinson v. Spector Motor Service, 330 U.S. 649 (1947). In Maximum Hours of Service of Motor Carrier Employees, the ICC found that it had the power to establish qualifications and maximum hours of service for mechanics, loaders, and helpers because they devoted a substantial part of their time to activities which directly affect the safety of operation of motor vehicles operated in interstate commerce. 28 M.C.C. at 138-139. However, although employees who work exclusively within the terminal may be regulated by FMCSR, the FHWA has taken the view that vehicles used wholly within the terminal yard are not covered by the FMCSR. See 62 Federal Register 16,405 (RX 1) Regulatory guidance question 16(b) asked: "Are vehicles and drivers used wholly within terminals and on premises or plant sites subject to the FMCSRs?" The FHWA answered: "No." Id. I find that Respondent's yard horses are vehicles used wholly within its terminal and, thus, are not subject to the FMCSR.

   Complainant also posits that because he has driven a yard horse outside Respondent's terminal yard, that is sufficient to convert these vehicles into commercial motor vehicles. Complainant testified that he drove a yard horse outside the terminal yard during a snow storm to tow a stranded vehicle back to Respondent's premises. (TR 53-54) I find that the one or two times Complainant may have driven a yard horse off the terminal yard is insufficient to change the nature of the yard horse from a vehicle used to transport trailers within the terminal yard to a commercial motor vehicle used on public roadways.

   In the alternative, Complainant argues that even if I find that the terminal yard is not a highway as defined by the FHWA, his complaint to OSHA on June 12, 1998 regarding the safety of yard horses is still "related to" a violation of a commercial motor vehicle safety regulations. Complainant alleges that even though yard horses are not operated on the highways, their operation on the terminal affects the operation of trailers that do operate on the highways. For example, Complainant argues that "the hydraulic fifth wheel booms and bushings [on the yard horses] were loose causing trailers to sway with the possibility of uncoupling." (Complainant's Brief, p. 22) Complainant cites 49 C.F.R.§§ 393.70 and 396.7 to support his argument. However, those regulations do not apply to yard horses. Rather, it is clear that they deal with the regulation of commercial motor vehicles and their safety on the highways (and I have already determined that yard horses are not commercial motor vehicles as defined in 49 C.F.R. 390.5).

   In sum, I find that yard horses are not commercial motor vehicles as defined by the FHWA, but rather are vehicles used wholly within Respondent's terminal. Complainant's actions involving yard horses - viz., red-tagging of yard horses, inspection of a yard horse on July 2, 1998, and the complaint to OSHA on June 12, 1998 regarding the safety of yard horses - are not covered by the FMCSR and, thus, cannot constitute protected activity under the Act.

   Complainant's red-tagging of trailers remains the only activity that could be protected under the Act. Respondent argues that Complainant's red-tagging of trailers is time-barred because these activities occurred more than 180 days before the filing of his July 27, 1998 complaint. (Respondent's Brief, p. 18) I disagree. If Respondent's argument is correct, an employer could immunize itself from violating the Act by simply waiting 180 days after an employee engaged in protected activity before taking adverse action against the employee. Rather, it is clear that the 180-day statute of limitations does not start to run until the employer takes adverse action against the employee. Indeed, Respondent has conceded that it fired Complainant because of his overall work record which included red-tagging of trailers. (TR 790-92; CX 27) Therefore, I find that Complainant's acts of red-tagging trailers are not time-barred.

   In the instant case, Respondent asserts that Complainant was discharged because he repeatedly violated Roadway's rules and disregarded instructions from his supervisors. (RX 7) An employee's resistance to complying with an employer's procedures constitutes a non-discriminatory reason for termination. Jacobson v. Beaver Transportation, Inc., 92-STA-17 (Sec'y Aug. 31, 1992).

   3. Dual Motive Analysis

   The dual motive doctrine arises when it is found that an employer's adverse action against an employee was motivated by both prohibited and nondiscriminatory reasons. See Price Waterhouse v. Hopkins, 490 U.S. 228, 250-58 (1989); Park v. McLean Transportation Services, Inc., 91-STA-47 (Sec'y June 15, 1992); Wilson v. Bolin Associates, Inc., 91-STA-4 (Sec'y Dec. 30, 1991); McGavock v. Elbar, Inc., 86-STA-5 (Sec'y July 9, 1986). The Secretary has held that "[w]here there is direct evidence that the adverse action is motivated, at least in part, by the protected activity, the respondent may avoid liability only by establishing that it would have taken the adverse action in the absence of the protected activity." Caimano v. Brink's, Inc., 95-STA-4 (Sec'y Jan. 26, 1996); see Price Waterhouse v. Hopkins, 490 U.S. at 250-58; Wilson v. Bolin Associates, Inc., 91-STA-4, slip op. at 4.

   Respondent asserts that Complainant engaged in three acts which constitute the failure to follow its rules: red-tagging equipment without authorization from the relay department; the June 19, 1998 incident in which Complainant placed a trailer inside the garage after allegedly being instructed to put it behind the garage; and performing an unauthorized and dangerous inspection of a yard horse on July 2, 1998.

   Respondent argues that it did not discipline Complainant for red-tagging equipment but because he failed to follow its rules on how to red-tag equipment. (Respondent's Brief, p. 21) Respondent required yard personnel to obtain authorization from the relay department prior to red- tagging equipment. (CX 7) Respondent argues that it maintains this policy because red-tagging places equipment out of service for an indefinite period of time and therefore has severe consequences on the operation of its terminal. Furthermore, Respondent asserts that Complainant, who is not a certified mechanic, was not qualified to make a unilateral determination as to whether equipment should be placed out of service. (Respondent's Brief, p. 20-21)

   The Secretary has held that "to permit an employer to rely on a facially- neutral policy to discipline an employee for engaging in statutorily-protected activity would permit the employer to accomplish what the law prohibits." Self v. Carolina Freight Carriers Corp., 91-STA-25 (Sec'y Aug. 6, 1992). In Self, the Secretary went on to state that the employer "would not have issued [the employee] a suspension had he not refused to drive when fatigued. Consequently, [the employer] disciplined [the employee] 'for' his protected activity." Id. at 6. Here, Respondent asserts that it disciplined Complainant for his failure to follow Roadway's policy to obtain authorization prior to red-tagging rather than for red-tagging per se. However, had Complainant not red-tagged, he would not have been disciplined. Therefore, I find that Complainant was disciplined for his protected activity of red-tagging.

   The next question is whether Respondent's legitimate business interests of maintaining order and preventing delays outweigh the policies underlying the Act. Self, supra. Self noted that -

[The] right to engage in statutorily-protected activity permits some leeway for impulsive behavior, which is balanced against employer's right to maintain order and respect in its business by correcting insubordinate acts; [the] key inquiry is whether [the] employee has upset [the] balance that must be maintained between protected activity and shop discipline . . . .

safety concerns were not being addressed by Respondent. I also find that Respondent's legitimate interest in preventing delays is entitled to less weight than Complainant's legitimate concern about safety defects he discovered in the course of performing his duties.

   Respondent also argues that it discharged Complainant, in part, because of his alleged failure to follow Company rules on June 19, 1998 by putting a trailer inside the garage without a mechanic's approval. (Respondent's Brief, p. 24) On June 19, 1998, OSHA made an unannounced visit to Respondent's Buffalo terminal in response to Complainant's complaint to OSHA regarding the unsafe condition of the yard horses. (TR 200-04) It is undisputed that after assisting the OSHA and NY DOT officials with the inspection of the yard horses, Complainant returned to work and found a trailer with defects. (TR 210) It is also undisputed that Complainant informed Petrowski of the defects and Petrowski told him to take the trailer "to the garage." (TR 211) Complainant alleges that he was proceeding to the garage when he saw Mathison who told him to take the trailer "to the garage." (TR 211-12) On the other hand, Respondent alleges, through the testimonies of Aiello and Tangent, that Mathison told Complainant to put the defective trailer behind the garage. (TR 597-98; TR 698) Respondent argues that its policy of requiring a mechanic's permission before taking equipment into the garage stems from a near fatal accident which occurred at its Buffalo terminal and Complainant's failure to follow Mathison's instructions to put the trailer behind the garage placed other employees at risk. (TR 676-77; CX 8) Complainant alleges that Respondent disciplined him in retaliation for his safety complaints and that Respondent's contention that he was disciplined for failing to follow instructions is a pretext. In his post-hearing brief, Complainant acknowledges that he could have misunderstood Mathison but argues that there was no evidence that he intentionally disobeyed the mechanic's instructions. (Complainant's Brief, p. 27) However, the Secretary has held that the critical focus of the inquiry is the employer's subjective perception of the circumstances at the time it took adverse action. Allen v. Revco D.S., Inc., 91-INA-9 (Sec'y Sept. 24, 1991) I find that the evidence supports the conclusion that Respondent was of the belief that Complainant violated its rule when he placed the trailer inside the garage. Thus, I find that Complainant has failed to establish that the discipline he received for the June 19, 1998 incident is pretextual.

   In addition, Respondent argues that it discharged Complainant, in part, for his unauthorized and dangerous inspection of a yard horse on July 2, 1998. (Respondent's Brief, p. 22) On July 2, 1998, Walker gave Complainant a termination letter discharging him from employment for performing an inspection on a yard horse. The termination letter stated that on that date Complainant was performing an unsafe and unauthorized vehicle inspection. (CX 27; RX 7) In a statement regarding Complainant's actions on July 2, 1998, Walker noted that he observed Complainant tilt the cab backwards, which Walker said was not required to check fluid levels and that raising the hood was extremely unsafe because the cab could have fallen and crushed Complainant. Walker also stated that he observed Complainant crawl underneath the equipment to check the brakes and that he ran the boom all the way up and tugged on it to see if there was any movement. (RX 7, p. 11) On the other hand, Complainant testified that although on October 28, 1997, West told him not to raise the hoods on the tractors, Tangent gave him permission to do so two weeks later. (TR 139) Tangent testified that he told Complainant not to lift the hoods on the tractors but to use the web system to check the fluid levels.

However, Tangent conceded that it would have been appropriate to lift the hood if there was a problem with the web system. (TR 668) Complainant also testified that he did not crawl under the yard tractor as alleged and that he could not physically fit underneath the yard tractor because there is only six to seven inches from the bottom of the exhaust to the ground. (TR 137) Larson, a switcher at the terminal, corroborated Complainant's testimony that it is approximately seven inches from the ground to the exhaust system of the yard horse and that it was impossible for Complainant to crawl underneath the yard horse. (TR 508) Beck testified that he is unaware of any specific work instruction or rule Complainant violated by tugging on the boom but assumed Walker must have instructed Complainant not to do so. On questioning by the undersigned, Beck conceded that he did not know what particular instructions Walker gave to Complainant regarding the boom. (TR 813-815) Based on the foregoing, I find that Complainant did not engage in an unsafe and unauthorized inspection of a yard horse on July 2, 1998, and that Respondent's contention is pretextual.

   Finally, Respondent maintains that Complainant had been warned numerous times that while performing switching duties, he was not to perform a full pre-trip inspection of the equipment, but only visually check for defects. Respondent contends that Complainant consistently failed to comply with its instructions to perform only a visual check and that this failure had a detrimental effect on its operations. (TR 572-74; TR 723-24; CX 18; RX 4) In particular, Respondent alleges that Complainant's inspections took an unreasonable amount of time and that his production was affected adversely. (Respondent's Brief, p. 23) Tangent testified that Complainant's "moves per hour" were substantially less than the rest of the switchers employed by Respondent. (TR 580-81) However, Glanville testified that Complainant's production was equal to or better than any other switcher on the shift. (TR 484) Although Respondent posits that Complainant's production was adversely affected, Roadway did not provide any records or other evidence that clearly shows his alleged shortcoming. An employer's "failure to adduce testimony that projects a clear image of the shortcomings in [the employee's] work performance allegedly relied on by [the employer] casts further doubt on whether [the employer] was motivated solely by those factors." Timmons v. Franklin Electric Cooperative, 1997-SWD-2 (ARB Dec. 1, 1998), slip op. at 5; See also Lieberman v. Gant, 630 F.2d 60, 65 (2d Cir. 1980); Loeb v. Textron, Inc., 600 F.2d 1003, 1012 (1st Cir. 1979). Therefore, I find that Respondent's contention that it was motivated to discharge Complainant because of his poor production is pretextual.

   In sum, Respondent has provided one valid nondiscriminatory reason for its adverse action, viz., Complainant's failure to follow instructions by putting a trailer inside the garage on June 19,

   Under the Act, Complainant, as a successful litigant, is entitled to a remedy requiring Respondent to take affirmative action to abate the violation, reinstate him to his former position with the same pay, terms and privileges of employment, and compensatory damages, including back pay. 49 U.S.C. § 31105 (b)(3)(A). Costs, including attorney's fees, reasonably incurred in bringing the complaint, may also be assessed against Respondent. 49 U.S.C. § 31105 (b)(3)(B). Complainant has requested the following relief:

1. Reinstatement to his previous position as switcher at Respondent's terminal in West Seneca, New York, with full seniority and other privileges of employment;
2. Expungement of the disciplinary letters dated August 4, 1997, August 14, 1997, October 16, 1997, October 20, 1997, January 18, 1998, June 19, 1998, and July 2, 1998;
3. Back pay from January 25, 1999 to February 14, 2000 in the amount of $45,621.49, plus $751.55 per week from February 14, 2000 until Complainant is reinstated;
4. Reimbursement of Complainant's medical costs in the amount of $5,317.95;
5. Interest on Complainant's damages;
6. Payment of all sums necessary to fund Complainant's pension, health and welfare benefits with the Teamsters Central States Pension Fund and Teamsters Central States Health and Welfare Fund that Respondent would have been required to pay but for its termination of Complainant's employment;
7. Payment of attorney fees, expenses, and costs;
8. An order requiring Respondent to post a copy of this decision in a conspicuous location at all of Respondent's terminals.

(Complainant's Brief, pp. 31-32)

   Under the Act, the Secretary must order reinstatement upon finding reasonable cause to believe that a violation occurred. The reinstatement directive takes effect immediately. Spinner v. Yellow Freight Systems, Inc., 90-STA-17 (Sec'y May 6, 1992).

   In Shamel v. Mackey, 85-STA-3 (Sec'y Aug. 1, 1985), the Secretary ordered the respondent to purge Complainant's employment records of any and all references suggesting that Complainant was discharged for cause. Also, the Secretary ordered the respondent to expunge from its personnel files a warning letter and notice of suspension pertaining to the complainant's work refusal. Self v. Carolina Freight Carriers Corp., 91-STA-25 (Sec'y Aug. 6, 1992).

   Consequently, I shall order Respondent to expunge from its personnel files and records system the disciplinary letters dated August 5, 1997, August 14, 1997, October 16, 1997, October 20, 1997, November 7, 1997, January 14, 1998 as they relate to Complainant's protected activity. (CX 16-20; CX 22) Furthermore, inasmuch as Complainant was suspended on June 19, 1998 not only for the infraction which occurred that day but also for his overall record including his protected activity, Respondent is to expunge from its personnel files and records system the suspension letter dated June 19, 1998. (CX 26) Finally, Respondent is to expunge from its personnel files and records system the termination letter dated July 2, 1998 because I have found that Complainant did not engage in an unsafe and unauthorized inspection of a yard horse on that day and that Respondent's motivation in terminating Complainant was pretextual. (CX 27)

   An award of back pay in an appropriate amount is mandated once it is determined that an employer has violated the Act. Moravec v. HC & M Transportation, Inc., 90-STA-44 (Sec'y Jan. 6, 1992), citing Hufstetler v. Roadway Express, Inc., 85-STA-8 (Sec'y Aug. 21, 1986), slip op. at 50, aff'd sub nom., Roadway Express, Inc. v. Brock, 830 F.2d 179 (11th Cir. 1987). Back pay awards are to be calculated in accordance with the make-whole remedial scheme embodied in § 706 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq. (1988). See Loeffler v. Frank, 489 U.S. 549 (1988).

(Complainant's Brief, pp. 29-30) Back pay calculations must be reasonable and supported by the evidence of record, but need not be rendered with "unrealistic exactitude." Cook v. Guardian Lubricants, Inc., 95-STA-43 (ARB May 30, 1997). Back pay awards are, at best, approximate and any "uncertainties in determining what an employee would have earned but for

the discriminations should be resolved against the discriminating employer." Pettway v. American Cast Iron Pipe Co., Inc.,494 F.2d 211, 260-61 (5th Cir. 1974). Based on the foregoing, I find that Complainant is entitled to back wages in the amount of $6,859.12 from January 25, 1999 through March 31, 1999 (9.3 weeks X $737.54) and $39,606.69 from April 1, 1999 through April 3, 2000 (52.7 weeks X 751.55), for a total of $46,465.81.

   Complainant's back pay must be offset by his interim wages. Complainant testified that he earned $10.00 an hour working for Cliff Star in Dunkirk, New York from February 18, 1999 to May 14, 1999. (TR 305-06) Complainant also testified that he worked an average of 48 to 52 hours a week and that he earned one and a half times his base rate of pay for work over 40 hours a week. (TR 305-07) Using 50 hours a week as an average that Complainant worked for Cliff Star, I find that he earned $4,800 in base pay and ,800 in overtime, for a total of $6,600. Therefore, Complainant's projected wages of $46,465.81 are reduced by his interim earnings of $6,600 leaving $39,865.81 as his total wage loss to April 3, 2000.

   Under the National Master Freight Agreement, Complainant is also entitled to the following: 9 holidays for 9 hours straight time at $18.84 per hour totaling ,526.04; 2 roving holidays for 8 hours straight time at $18.84 per hour totaling $301.44; 5 sick days for 8 hours straight time at $18.84 per hour totaling $753.60; and 3 weeks of vacation at 45 hours per week at $18.84 per hour totaling $2,543.40. Furthermore, where an employer is found to have violated the Act and the complainant is found to be entitled to an offer of reinstatement to his or her former position and to back pay, the employer's liability for back pay continues until such time as the employer reinstates the complainant or makes him a bona fide offer of reinstatement. Polewsky v. B & L Lines, Inc., 90-STA-21 (Sec'y May 29, 1991). Therefore, Complainant is entitled to back pay in the amount of $44,990.29 through April 3, 2000, as well as $751.55 per week from April 3, 2000 until Complainant is reinstated.

   Although in his post-hearing brief, Complainant argues that he is entitled to reimbursement of medical expenses totaling $5,319.95, he submitted a listing of his uncovered medical costs totaling only ,741.09. Therefore, I find that Complainant has established entitlement to reimbursement of medical expenses submitted which total ,741.09. (CX 30)

   Complainant is entitled to interest on the back pay to compensate for loss suffered due to Roadway unlawfully depriving him of the use of his money. Hufstetler v. Roadway Express, Inc., 85-STA-8 (Sec'y Aug. 21, 1986), aff'd sub nom., Roadway Express, Inc. v. Brock, 830 F.2d 179 (11th Cir. 1987). Prejudgment interest shall be 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. See Park v. McLean Transportation Services, Inc., 91-STA-47 (Sec'y June 15, 1992), slip op. at 5; Clay v. Castle Oil Co., Inc., 90-STA- 37 (Sec'y June 3, 1994).

   Respondent is also required to pay the pension contributions and the health and welfare benefits of which Complainant has been deprived as a result of the unlawful actions of Respondent. See Hufstetler v. Roadway Express, Inc., 85-STA-8 (Sec'y Aug. 21, 1986).

   On February 23, 2000, counsel for Complainant, Paul O. Taylor, Esquire, submitted a Petition for Costs and Attorney Fees in the amount of $35,540.41. This amount represents 145.75 hours of work by Attorney Taylor at $225.00 per hour and $2,746.77 in expenses. Respondent has not submitted objections to the fee petition.

   In order to determine the fees to be awarded under the Act, "it is usual to use the lodestar method which requires multiplying the number of hours reasonably expended in bringing the litigation by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424 (1984). I find that Attorney Taylor's rate of $225.00 per hour and the hours he expended on the case are reasonable.

   It is appropriate to require Roadway to post this decision at the facility where Complainant worked. Scott v. Roadway Express, Inc., 1998-STA-8 (ARB July 28, 1999). In Smith v. Esicorp., Inc., 1993-ERA-16 (ARB Aug. 27, 1998), Respondent was ordered to post the decision of the ARB and an earlier Secretary of Labor remand decision, in a lunchroom and another prominent place accessible to its employees for a period of 90 days.

Respondent is Ordered to:

1. Reinstate Complainant to his previous position as a switcher with full seniority and privileges of employment effective immediately;

2. Expunge from its personnel files and records system the following: disciplinary letters dated August 5, 1997, August 14, 1997, October 16, 1997, October 20, 1997, November 7, 1997, January 14, 1998, suspension letter dated June 19, 1998, and termination letter dated July 2, 1998;

3. Pay to Complainant back wages for the period of January 25, 1999 through March 27, 2000 in the amount of $44,990.29, plus $751.55 per week from April 3, 2000 until Complainant is reinstated;

4. Reimburse Complainant for medical bills in the amount of ,741.09;

5. Pay to Complainant interest on the back pay award calculated in accordance with 26 U.S.C. § 6621 (1998);

6. Pay on behalf of Complainant all pension contributions as well as health and welfare benefits to which he would have been entitled had he not been discharged;

7. Pay Complainant's attorney fees and expenses in the amount of $35,540.41;

8. Post a copy of this decision for 90 days in a prominent place accessible to employees at

   Roadway's terminal in West Seneca, New York.

      Robert D. Kaplan
      Administrative Law Judge

Dated: March 30, 2000
Camden, New Jersey

NOTICE: This Recommended Decision and Order and the administrative file in this matter will be forwarded for review by the Administrative Review Board, U.S. Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210. See 29 C.F.R. § 1978.109(a); 61 Fed. Reg. 19978 (1996).

was permitted to remain working pending a final determination of his discharge, apparently pursuant to the grievance-arbitration provisions in the collective bargaining agreement between Respondent and Local 375. On July 27, 1998, Complain-ant visited the OSHA office in Bowmansville, New York and orally complained to an OSHA official about his suspension and termination. The OSHA official told Complainant that she would not accept his complaint prior to the exhaustion of the grievance-arbitration procedures. (T 293-95) On January 25, 1999, Complainant's discharge by Respondent was upheld by the Eastern Region Joint Area Committee ("Committee"), the last step of the grievance- arbitration procedure in Com-plainant's grievance. (CX 27)

There is not even a requirement that a complaint be in writing. Reemsnyder v. Mayflower Transit, Inc., 93-STA-4 (Sec'y Feb. 25, 1994), citing Greathouse v. Greyhound Lines, Inc., 92-STA-0018 (Sec'y Aug. 31, 1992). Further, although the OSHA Manual's procedures were not followed on July 27, 1998, the OSHA official with whom Complainant met on that date made a "log entry" describing Complainant's visit on an OSHA "diary sheet." (Boyce deposition, pp. 14-15) The OSHA diary sheet contains the following handwritten notations for July 27, 1998:

In a memorandum dated September 1, 1999 by which a copy of the above diary sheet was provided to Complainant during the course of the hearing on that date, Area Director Boyce stated:

The attached is a copy of a diary sheet from case file Roadway Express Inc.. Inspection report #301002357.

(CX 35)

   Based on the foregoing, I find that the fact that OSHA failed to follow the procedures in the OSHA Manual does not invalidate the complaint Complainant made to OSHA on July 27, 1998.

   Respondent also argues that the log entry does not have the necessary characteristics of a complaint, in that it fails to identify the parties and dates of alleged discrimination, nor refers to the STAA. As noted, the relevant regulation, 29 C.F.R. § 1978.102(b), states that no particular form of complaint is required under the STAA. In Richter v. Baldwin Associates, 84-ERA-9 (Sec'y Mar. 12, 1986), the Secretary was dealing with a regulation, 29 C.F.R. § 24.3(b) (1985), that requires a written complaint and suggests the need for much more specificity than is required by the STAA regulation. Despite this, the Secretary stated:

This complaint, although "equivalent to the filing of a formal legal complaint," is not a formal pleading setting forth legal causes of action [but] is an informal complaint filed ... for the purpose of initiating an investigation on behalf of the Secretary of Labor...." (Citation omitted.)

Richter, supra, slip op. at 6. Richter held that the fact that some complainants' complaints omitted allegations of protected activity was not fatal to the allegations.

   Respondent's final argument is that the log entry did not put it on notice that allegations of discrimination were made. In my view, however, the important question is whether Respondent had adequate notice to prepare for the formal hearing that commenced before me on August 31, 1999. There is no question that Respondent had sufficient notice prior to the hearing. In the OSHA determination letter dated May 12, 1999, OSHA advised Respondent's counsel that, after investiga-tion, OSHA found that Complainant's discrimination complaint against Respondent was without merit. It is obvious that sometime during the OSHA investigation (which commenced after February 1, 1999), and prior to May 12, 1999, OSHA informed Respondent of Complainant's discrimination complaint. Consequently, Respondent had specific notice of the complaint at least three and a half months, and possibly up to seven months, prior to the formal hearing. I therefore find that this contention of Respondent is without merit.