DATE:  October 31, 1994
CASE NO. 93-STA-31


IN THE MATTER OF

GREGORY A. DUTILE,

          COMPLAINANT,

     v.

TIGHE TRUCKING, INC.,

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     In an earlier decision in this case, I found that Respondent
Tighe Trucking, Inc. (Tighe) violated the Surface Transportation
Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1988),
when it discharged Complainant Gregory Dutile.  See
November 29, 1993, Decision and Order.  In response to a question
at the hearing, Dutile said that he did not wish to be reinstated
to his former position.  T. 29.  I ordered Tighe to pay Dutile
back pay of $634.90 per week, beginning on December 24, 1992, and
continuing until payment of the award, with interest, and to
expunge all derogatory and negative references from Dutile's
employment record.
     While the case was pending before me, Tighe tendered to
Dutile a check for $29,245.70, which represented 
back pay plus interest from the date of discharge through
November 5, 1993.  Tighe calculated the interest on back pay
according to the rate for treasury bills.  Dutile returned the
check because he deemed the amount to be inadequate.
     After issuance of the November 29, 1993, Decision and Order,
Tighe asked me to allow a reduction on the interest owed pursuant
to 26 U.S.C. § 6621 (1988) (interest rate for underpayment
of federal income tax).  In a March 30, 1994 Order, I denied the 
[PAGE 2]
request to reduce the interest and remanded to the Administrative
Law Judge (ALJ) for a calculation of the amount of back pay and
interest owed under the earlier Decision and Order.
     In a July 2, 1994, Recommended Decision and Order on the
remanded issues, the ALJ found that in addition to back pay and
interest, Dutile is entitled to payment of the pension
contributions and the health and welfare benefits of which he was
deprived as a result of the discriminatory discharge, R.D. and O.
at 4, as well as payment of his expert witness fee. [1]   R.D.
and O. at 5.  The ALJ reasoned that the additional payments
beyond back pay and interest were necessary to restore Dutile to
the status he would enjoy but for the discriminatory discharge. 
Id.   The ALJ ordered Tighe to pay directly to Dutile the
amount of $13,624.51 as restoration of his medical insurance
benefits and $4,788.40 as restoration of Tighe's contributions to
Dutile's 401(k) plan.  Id.
     In Hufstetler v. Roadway Express, Inc., Case No. 85-
STA-8, Final Dec. and Order, Aug. 21, 1986, slip op. at 48,
rev'd on other grounds, Roadway Express, Inc. v.
Brock, 830 F.2d 179 (11th Cir. 1987), the Secretary held that
a successful complainant under the STAA "has no personal
entitlement to the amount that would have been paid as health and
welfare benefits" had he not been discharged.  Where, as here,
the complainant has not presented any evidence of claims of
medical losses or the purchase of private insurance as a
substitute for the benefits he would have received under the
health and welfare fund, I will not order a respondent to pay
directly to the complainant the amounts that the company would
have spent for health and welfare benefits.  Id.  
Tighe must, however, restore past health and welfare
benefits to the extent that they affect current or future
entitlement to benefits.  See Hufstetler, slip op.
at 49. [2] 
     Likewise, I will order Tighe to restore, rather than pay
directly to Dutile, any 401(k) plan contributions to which he
would have been entitled had he not been discharged. 
SeeHufstetler, slip op. at 59.
     I have followed earlier decisions in ordering in this case
that the back pay continues to accrue until payment of the award. 
In the past, the Secretary has found that where the complainant
states that he does not desire reinstatement, back pay continues
to accrue until compliance with the order.  Asst. Secretary
and Chapman v. T.O. Haas Tire Co., Case No. 94-STA-
00002, Final Dec. and Order, Aug. 3, 1994, slip op. at 9,
appeal docketed, No. 94-3334 (8th Cir. Sept. 21, 1994);
Asst Secretary and Gagnier v. Steinmann Transportation,
Inc., Case No. 91-STA-46, Final Dec. and Order, July 29,
1992, slip op. at 6; and Assistant Secretary and
Moravec v. HC & M Transportation, Inc., Case No. 90-STA-44,
Final Dec. and Order, Jan. 6, 1992, slip op. at 20, 22.  In cases
[PAGE 3]
such as these, "[t]he Secretary consistently has recognized and
respected a complainant's decision not to seek reinstatement." 
Gagnier, slip op. at 5 and cases there cited.
     In scrutinizing the policy of honoring a discharged
employee's statement that he does not seek reinstatement, I have
become aware that a complainant who is not ordered to be
reinstated may gain a windfall as back pay continues to accrue
during the pendency of remanded issues such as calculation of the
exact amount of back pay and related benefits.  If instead
reinstatement is ordered in such cases, the respondent will have
the obligation to make a bona fide reinstatement offer.  The
respondent's back pay liability would terminate upon the
declination of the offer. 
     In the future, when a complainant states at the hearing that
he does not desire reinstatement, the parties or the ALJ should 
inquire as to why.  If there is such hostility between the parties 
that reinstatement would not be wise because of irreparable 
damage to the employment relationship, the ALJ may
decide not to order it.  If, however, the complainant gives no
strong reason for not returning to his former position,
reinstatement should be ordered.
     While it may seem harsh in this case that back pay continues
to accrue despite Tighe's attempt to pay the award in November
1993, I note that Tighe has not availed itself of several means
to terminate its back pay liability.  Tighe could have complied
immediately with the November 29, 1993, Decision and Order, which
set forth the formula for computing back pay and interest and was
issued a few weeks after Dutile rejected the tendered award.
     In addition, if Tighe voluntarily had made a bona fide offer
of reinstatement, Dutile's rejection of the offer would have
terminated back pay.  See Asst. Secretary and
Zessin v. ASAP Express, Inc., Case No. 92-STA-33, Sec. Dec.
and Order, Jan. 19, 1993, slip op. at 14 and Asst. Sec. and
Phillips v. MJB Contractors, Case No. 92-STA-00022,
Final Dec. and Order, Oct. 6, 1992, slip op. at 4-5 (Respondent
owes back pay until reinstatement or declination of offer). 
Tighe has not made any reinstatement offer, however.  
     Finally, evidence that Dutile had failed to mitigate his
damages would reduce the amount of back pay owed.  Dutile
testified that he had been unemployed since Tighe discharged him. 
T. 36.  As Respondent, Tighe had the burden of establishing that
the back pay award should be reduced if Dutile did not exercise
diligence in seeking and obtaining other employment.  See
Hufstetler, slip op. at 53.  Tighe, which was
represented by counsel, introduced no evidence concerning failure
to mitigate.  Consequently, the ALJ found that Dutile had
mitigated his damages.  August 16, 1993 [Recommended] Decision
and Order at 15.
[PAGE 4]
     With the exception of ordering payment of the health and
welfare benefits and contributions to the 401(k) plan directly to
Dutile, I adopt the appended R.D. and O., which is clear and well
reasoned.  Accordingly, it is ORDERED:
     1. Respondent shall pay to Complainant back pay at the rate
of $634.90 per week, commencing on December 24, 1992 and
continuing until payment of the award, plus interest at the rate
specified in 26 U.S.C. § 6621, computed until the date of
payment.  The amount of back pay and interest owed until July 15,
1994 totals $54,604.85.  
     2. Respondent shall restore, on behalf of Complainant, all
contributions to the 401(k) plan to which Complainant would have
been entitled had he not been discharged.  The amount of this
restoration is $4,788.40.
     3. Respondent shall 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.
     4. Respondent shall pay Complainant the amount of $175.00 as
reimbursement for the expert witness expense.
     5. Respondent shall immediately expunge from Complainant's
personnel records all derogatory or negative information
contained therein relating to Complainant's employment with
Respondent and his termination.  Respondent shall also refrain
from referring to this incident when providing employment
references concerning Complainant.
     SO ORDERED.

                               ROBERT B. REICH
                              Secretary of Labor

Washington, D.C. 

[ENDNOTES]
           
[1]  Dutile, who appeared pro se, incurred a cost
of $175 for the services of a certified public account who
calculated the back pay and interest through July 15, 1994, the
medical insurance pay back, and the 401(k) plan with employer
contributions.  Tighe did not respond to the ALJ's order
requesting statements from the parties on the calculation of the
back pay and related costs.

[2]  In Hufstetler, slip op. at 49, the former Secretary
explained that "if Hufstetler would be entitled to recover
medical costs under the union health benefits plan only if he has
been covered by that plan for a certain period, Roadway must pay
to the union fund the necessary amount to ensure such coverage."