DATE:  November 25, 1992
CASE NO. 91-STA-49

IN THE MATTER OF:

ASSISTANT SECRETARY OF LABOR FOR OCCUPATIONAL SAFETY
AND HEALTH,
     PROSECUTING PARTY,

AND

DON HAMILTON,
     COMPLAINANT,

v.

SHARP AIR FREIGHT SERVICE, INC.,
     RESPONDENT.

BEFORE:  THE SECRETARY OF LABOR

                         FINAL DECISION AND ORDER

     Before me for review is the September 28, 1992, Recommended
Decision and Order on Remand (R.D. and 0.) of the Administrative
Law Judge (AM) 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)
Pursuant to 29 C.F.R. § 1978.109(c)(2) (1992), Respondent
has filed a brief before me and counsel for Complainant and the
Assistant Secretary has submitted a letter in support of the
ALJ's decision.
     In an earlier decision issued March 31, 1992, the ALJ found
that Respondent violated the STAA by firing Complainant for
refusing to operate a motor vehicle in violation of a federal
safety regulation.  The AM ordered Respondent to reinstate
Complainant and pay back pay.  I affirmed the finding of a
statutory violation, remanded for reconsideration of the amount
of back pay to which Complainant is entitled, and authorized the
parties to submit evidence on the effect of Respondent's
seniority list system of dispatch on its back pay liability. July
24, 1992, Decision and Order of Remand, slip op. at 5-6.
     On remand, the parties submitted additional evidence on the
seniority list system and calculation of the pay Complainant
reasonably would have received while working under it.  The ALJ
found that the earnings of Respondent's drivers depended not only
on seniority but also on willingness to work weekends, and hence 
[PAGE 2]
it was not possible to calculate exactly what Complainant would
have earned.  R.D. and 0. at 2.  Applying the principle that
uncertainties in calculating back pay should be resolved against
the discriminating employer, the AM calculated the weekly back
pay owed by averaging two established amounts: Complainant's pre-
discharge average weekly wage and post-reinstatement average
weekly wage.  The AM deducted Complainant's interim earnings and
ordered payment of interest at the rate specified in 26 U.S.C.
§ 6621 (1988).
     Respondent argues that Complainant's back pay should be
calculated by using the wages of a representative employee, which
can be an acceptable method of approximating what a complainant
would have earned but for the discrimination.  See, e.g.,
Assistant Secretary and Reed v. National Minerals Corp., Case
No. 91-STA-34, Final Dec. and Order, July 24, 1992, slip op. at
7.
     Respondent submitted evidence establishing the 1991 earnings
of the employee two places below Complainant on the union
seniority list, and the 1992 earnings of an employee purportedly
next below Complainant on the seniority list for 1992, as a means
to approximate what Complainant would have earned during the back
pay period.  Exhibit B, Wage/Earnings Calculations for Phillip
Giacoppo and Bruce Stickney, to "Respondent's Opposition to
Recommended Decision and Order on Remand of the Administrative
Law Judge." But Respondent did not establish whether the
assertedly representative employees consistently worked weekends,
as Complainant did.
     Complainant submitted an affidavit establishing that he was
willing to work weekends and had done so both before he was
fired, and since being reinstated in May 1992.  CX 13, Affidavit
of Don Hamilton, attached to Prosecuting Party's Post-Hearing
Brief 'on Respondent's Back Pay Liability.  Complainant also
established that during the period in issue, Respondent routinely
used F' spare drivers" not taken from the seniority list to work
when all seniority list drivers were working.  CX 14, Affidavit
of James Ryan, union shop steward.  Complainant indicated that he
always was willing to be a spare driver, weekdays and weekends.
CX 13.
     As the ALJ correctly noted, uncertainties in calculating
back pay are resolved against the discriminating party.  See,
e.g., Assistant Secretary and Moravec v. HG & M Transportation,
Inc., Case No. 90-STA-44, Final Dec. and Order, Jan. 6, 1992,
slip op. at 21, citing Pettway v. American Cast Iron Pipe
Co., 494 F.2d 211 (5th Cir. 1984).  Here, the uncertainty as
to whether the other employees' pay reflected the same
willingness to work that Complainant exhibited, and therefore
represented what Complainant would have earned, will be resolved
against Respondent.

[PAGE 3]
     The ALJ relied instead upon unrefuted evidence of
Complainant's actual earnings before discharge and after
reinstatement to establish an average weekly wage for the back
pay period.  I find that this method provides an acceptable
approximation of the amount Complainant would have earned and
adopt the AM's Recommended Decision and Order on Remand, which is
appended.

          SO ORDERED
                                                 LYNN MARTIN
                                                 Secretary of Labor
Washington, D.C.