(TR 306)
Complainant maintains that his back pay should be calculated in the following
manner:
-
Complainant earned $38,351.90 in 1998 as evidenced by his W-2 Wage
and Tax Statement. (CX 29) Thus, his weekly wage in 1998 was $737.54.
Complainant's hourly rate of pay while employed by Respondent was
$18.49 per hour effective April 1, 1998 through March 31, 1999. (ALJ 2)
However, on April 1, 1999, switchers hourly rate increased by 1.9 percent
to $18.84 per hour. Thus, Complainant argues his weekly wage should be
increased 1.9 percent to $751.55 on April 1, 1999.
(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
[Page 15]
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.
Medical Bills
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)
Interest on Back Pay
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).
[Page 16]
Retroactive Pension, Health and Welfare
Benefits
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).
Attorney's Fees
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.
Posting of Notice of Decision
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.
RECOMMENDED ORDER
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;
[Page 17]-
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).
[ENDNOTES]
1The following abbreviations are used herein:
"CX" denotes Complainant's exhibit; "RX" denotes Respondent's exhibit;
"ALJ" denotes Administrative Law Judge's exhibit; "TR" denotes the transcript
of the August 31 and September 1, 1999 hearing.
2Respondent argued that no complaint had
been filed within 180 days of its notice of employment termination given to Complainant on July 2, 1998,
in compliance with the 180-day statute of limitations in the Act. By Order dated December 16, 1999
(attached hereto as an "Appendix"), I found that Complainant's visit to OSHA on July 27,
1998 constitutes a valid and timely complaint. The December 16, 1999 Order is incorporated into this
Recommended Decision and Order.
3Equipment refers to tractors, trailers, and
dollies that switchers inspect in the course of their drop and hook duties. (TR 48)
4Complainant testified that although
Petrowski had already told him to take the defective trailer to the garage, he stopped and asked Mathison
because of Respondent's policy which required permission from a mechanic to go inside the garage. (TR
232-33; CX 8)
5Under the National Master Freight
Agreement between the Teamsters Union and the covered employers, after a grievance is filed it is heard
by the local, state, and area joint committees. (ALJ 2) Beck testified that the joint local committee, the
Buffalo Joint Local Committee, consists of three union members and three management members from
other companies. If a majority decision is not reached, the grievance goes to the next level, the state joint
area committee, then to the regional joint area committee, and finally to arbitration. (TR 761-63) Because
the Buffalo Joint Local Committee and the New York State Joint Area Committee were both deadlocked
regarding Complainant's allegations of wrongful discharge, the Eastern Regional Joint Area Committee
heard the matter.
6Once a complainant establishes that he
engaged in protected activity, he must then establish that the respondent knew of the protected activity.
In the instant case, Respondent stated repeatedly that part of its motivation for terminating Complainant
was his overall work record, including the red-tagging of trailers. (TR 790-92; CX 16-22, 26) Therefore,
it is clear that Respondent knew of the protected activity.
7This issue has also been addressed in
cases under Title VII of the Civil Rights Act of 1964, in which it has been held that "certain forms
of opposition, including illegal acts or unreasonably hostile or aggressive conduct, may provide a
legitimate, independent and nondiscriminatory basis for sanctions." EEOC v. Crown
Zellerbach Corp., 720 F.2d 1008, 1012 (9th Cir. 1983). Stated differently, the form of opposition
may remove Title VII protections. Id. at 1015; Silver v. KCA, Inc., 586 F.2d 138, 141
(9th Cir. 1978). See Jennings v. Tinley Park Comm. Consol. Sch. Dist., 864 F.2d
1368, 1372 (7th Cir. 1988)(decision to discipline employee "whose conduct is unreasonable, even
though borne out of legitimate protest, does not violate Title VII").
8Respondent, citing Becton v. Detroit
Terminal of Consolidated Freightways, 687 F.2d 160 (6th Cir. 1992), argues that it has established
a legitimate basis for its termination of Complainant because the termination was upheld under the
collective bargaining agreement by the Teamsters Eastern Regional Joint Area Committee. (Respondent's
Brief, pp. 19-20) As I have found that Respondent had, at least in part, a nondiscriminatory motive for
terminating Complainant, I need not determine whether the principle in Becton is applicable
to the grievance procedure in the instant case.
9Respondent has not made any assertion
that Complainant failed to mitigate his damages.
APPENDIX