DATE: June 5, 1995
CASE NO. 94-STA-46
IN THE MATTER OF
RICKY M. POLGAR,
COMPLAINANT,
v.
FLORIDA STAGE LINES,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
MODIFIED FINAL DECISION AND ORDER
Polgar filed a motion on April 20, 1995, requesting that the
Final Decision and Order (F. D. and O.) issued on April 18, 1995,
be modified. Respondent, by order of April 26, 1995, was given
until May 17, 1995, to file a response. Polgar's motion is based
upon three alleged errors, as follows:
1) That reinstatement was not necessarily required by
the F. D. and O.;
2) That the back pay award should be identified as a
per week award; and
3) That the calculation of weekly earnings should be
modified to include only weeks actually worked by
Polgar in 1994.
See Complainant's motion to Correct Final Decision and Order,
April 20, 1995. Based upon all the information in the record and
the parties' most recent submissions, I agree that the
F. D. and O. should be modified, as set out below.
The ALJ ordered reinstatement. Partial Decision and Order,
November 11, 1994 at 5. The April 18, 1995 F. D. and O. agreed
with the findings of the ALJ, except as specifically noted.
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F. D. and O. at 2. The order of reinstatement was not in any way
modified and remains in full force and effect. An Errata was
issued sua sponte on April 21, 1995, correcting the F. D.
and O., to clarify that Polgar's back pay award was to be
calculated on a per week basis. Therefore, the first two items
identified above and alleged to be in need of correction by
Polgar, have already been adequately addressed.
In calculating Polgar's weekly earnings I divided the total
number of trips taken by him in 1994 by a full year, 52 weeks.
In fact, Polgar only worked 20 weeks in 1994. See Respondent's
November 30, 1994 letter to the ALJ, Exhibit 1 (RX 1).
Therefore, a more appropriate way to determine Polgar's weekly
earnings in 1994 is to divide the total number of trips taken
(79), by the number of weeks actually worked (20), multiplied by
Polgar's earnings per trip ($81.29). This calculation results in
a weekly earnings estimate for Polgar in the amount of $321.10
(79 20 = 3.95 trips per week x $81.29 earned per trip =
$321.10), plus $50 per week in tips, for a total a total of
$371.10 per week. Polgar was earning that amount per week at the
time of his discharge. RX 1 supports that calculation, excluding
tips, by showing that Polgar earned $6,422 in 20 weeks of work
for Respondent in 1994, $6,422 20 = $321.10.
Polgar argues that $371.10 is the appropriate number to use
in calculating his back pay award. The problem with this
argument is that it does not take into account the seasonal
nature of Respondent's business. The record is clear that Polgar
could not reasonably expect to earn that amount on a weekly basis
throughout the year. See RX 1 for a history of Polgar's earnings
and a summary of the seasonal nature of Respondent's business.
Therefore, in order to arrive at a reasonable estimate of
Polgar's weekly earnings, the seasonal nature of Respondent's
business must be taken into account.
In Polewsky v. B & L Lines, Inc. A/K/A Red Diamond
Tours, Inc., Case No. 90-STA-0021, Sec. Dec. and Order [After
Remand], May 29, 1991, slip op. at 4, I found that computing back
pay on a quarterly basis is appropriate where the complainant was
employed on a part-time basis as a tour bus operator and had
other sources of income. Such a quarterly pay calculation was
appropriate in Polewsky to assure that "the interim
earnings in one particular quarter have no effect on back pay
liability for any other quarter [and] is consistent with the
practice of the NLRB and the Department of Labor in other
discrimination areas." Polewsky, slip op. at 4. That same
reasoning is applicable to fairly assess the seasonal nature of
Respondent's business and Polgar's ultimate irregular earnings.
Therefore, I will proceed to calculate Polgar's estimated weekly
earnings for each quarter of the year. Polgar will then be due
back pay for each week after
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his discharge, up until an offer of reinstatement is made, in an
amount equal to the weekly earnings estimate for the
corresponding quarter of the year.
One additional problem arises in calculating Polgar's
quarterly estimated earnings -- he clearly was working more trips
in the latter part of his employment for Respondent than he did
in the early portion of his employment. For example, in April of
1993 he drove 11 trips and in April of 1994, 21 trips. In total,
for the first 21 plus weeks of 1993 Polgar drove 53 trips and for
the first 20 weeks of 1994, 79 trips. The seasonal nature of the
tour bus business does not account for this increase in work.
Polgar was working more trips for Respondent at the time of his
discharge than he did in previous years, regardless of the
season. To arrive at a fair estimate of Polgar's quarterly
earnings this increase in work must be taken into account. A
projection of Polgar's earnings would not be speculative because,
even though "future wages cannot be exactly determined, [this]
does not defeat an award. Rather, any uncertainty should be
resolved against the unlawfully discriminating employer."
Polewsky, Order of Remand, Dec. 11, 1990, slip op. at 6,
citingRasimas v. Michigan Dept. of Mental Health,
714 F.2d 614, 628 (6th Cir. 1983); EEOC v. Enteprise Ass'n.
Steamfitters, 542 F.2d 579, 587 (2d Cir. 1976), cert.
denied, 430 U.S. 911 (1977); Palmer v. Western Truck
Manpower, Case No. 85-STA-16, Sec. Final Dec. and Order on
Damages and Attorney Fees, June 26, 1990, slip op. at 4-5.
The 79 trips taken in the first twenty weeks of 1994 is a
50 percent increase in the number of trips taken during the same
time period in 1993 (79 - 53 = 26 53 = .49). This 50 percent
increase estimate is conservative because it does not take into
account the additional nine days of available work Polgar had in
May of 1993, over May of 1994. Further, Polgar's increase in
work actually began in November and December of 1993, which
reflect a more than 100 percent increase over November and
December of 1992 (17 versus 8). I conclude that taking the
actual number of trips per quarter in 1993, where 1994 figures
are unavailable, and increasing that number by 50 percent,
results in a fair estimate of Polgar's future earnings. All of
the estimates are based upon figures contained in Respondent's
own exhibit -- RX 1, as follows:
First Quarter - January through March - 44 trips actually taken,
for an average of 3.38 trips per week (44 13 weeks =
3.38) x $81.29 per trip = $274.76 + $50 in tips = $324.76
per week;
Second Quarter - April through June - 39.5 trips estimated to be
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taken (35 actual trips in April and May, and 4.5
estimated for June based upon 3 in 1993, plus 50 percent),
for an average of 3.038 trips per week (39.5 13 =
3.038) x $81.29 per trip = $246.96 + $50 in tips = $296.96
per week;
Third Quarter - July through September - 18 trips estimated to be
taken (12 in 1993, plus 50 percent), for an average of
1.385 trips per week (18 13 = 1.385) x $81.29 per trip =
$112.59 + $50 in tips = $162.59 per week; and
Fourth Quarter - October through December - 42 trips estimated to
be taken (28 in 1993, plus 50 percent), for an average of
3.23 trips per week (42 13 = 3.23) x $81.29 per trip =
$262.57 + $50 in tips = $312.57 per week.
Therefore, all back pay awarded to Polgar, as set out in the
F. D. and O., shall be calculated on a per week basis using the
per week estimate set out above for the applicable quarter.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
