DATE: July 26, 1995
CASE NO. 94-STA-22
IN THE MATTER OF
ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH,
PROSECUTING PARTY,
and
JOHNNY LANSDALE AND DONNA LEE,
COMPLAINANTS,
v.
INTERMODAL CARTAGE CO., LTD.,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
Before me for review is the Recommended Decision and Order
(R. D. and O.) of the Administrative Law Judge (ALJ) issued on
March 27, 1995, in this case arising under the employee
protection provision of the Surface Transportation Assistance Act
of 1982 (STAA), 49 U.S.C.A. 31105 (West 1994).
In recommending that the complaint be upheld, the ALJ found
(1) that Respondent discharged Complainants Johnny Lansdale and
Donna Lee, at least in part, for engaging in activity which is
protected under the STAA, R. D. and O. at 25, and (2) that
Respondent failed to prove that it would have taken the same
action even if Complainants had not engaged in protected
activity. Id. at 26-28. The ALJ rested much of the
decision on credibility findings and weighed the record evidence
appropriately, explicitly identifying the portions that were
accepted or rejected and stating the reasons for doing so. The
ALJ's findings are supported by substantial evidence, and I adopt
them. 29 C.F.R. 1978.109(c)(3) (1994).
Respondent argues that the ALJ's finding that it would not
have discharged Complainants in the absence of the protected
activity is not supported by substantial evidence. Resp. Brief
at 2-13. According to Respondent, Complainants engaged in
"insubordination" when they refused dispatch's direction to haul
overweight trailers across public thoroughfares to portable
scales which "would constitute an independent basis for lawful
termination." Id. at 3. I note that Respondent sets out
only a portion of the ALJ's discussion in addressing this
finding. Examination of the discussion in its entirety, R. D.
and O. at 27 and n.16, reveals that the ALJ deliberated
thoroughly in rejecting Respondent's rationale and based that
rejection largely on credibility determinations. Examination of
the record in its entirety reveals the finding to be well
grounded. See, e.g., R. D. and O. at 7-9, 21-22.
With one exception, I agree with the ALJ's findings
concerning back pay and damages. Specifically, I agree with the
Assistant Secretary for Occupational Safety and Health that the
back pay period should be extended from July 15, 1994, to August
24, 1994. Although the Assistant Secretary also argues that
Complainants should be awarded compensatory damages for losses
incurred in the sale of their trucks, I am constrained to agree
with the ALJ that the record provides insufficient basis for
making such an award. Accordingly, I adopt the ALJ's findings,
R. D. and O. at 31-41, as modified below. Although offered reinstatement on July 15, 1994, Complainant
Lansdale, a truck owner-operator, was unable to resume employment
until August 24, 1994, when he succeeded in replacing his truck.
(Financial constraints due to the discharge required him to sell
both of his trucks, one that he drove and one that Lee drove.)
Whereas the back pay period usually is tolled upon an
unconditional offer of reinstatement, the period is not tolled
where the offer is "invalid," e.g., where immediate
resumption of employment is not feasible. "Essentially . . . the
validity of the offer depends on the situation in which the
offeree finds himself as a result of the discrimination against
him." NLRB v. Murray Products, Inc., 584 F.2d 934, 940-
941 (9th Cir. 1978) (back pay not tolled where offers of
reinstatement did not afford employees reasonable amount of time
to arrange to return to work). Cf. Hufstetler v. Roadway
Express, Inc., Case No. 85-STA-8, Sec. Dec., Aug. 21, 1986,
slip op. at 56-57, aff'd sub nom. Roadway Express, Inc. v.
Brock, 830 F.2d 179 (11th Cir. 1987) (back pay not tolled
during period when financially destitute complainant unable to
seek alternative employment because of need to sell assets and
equipment).
Here, Complainants were owner-operators who were required to
use their own trucks in order to be reinstated, rather than
employees whose employer supplied all necessary equipment.
Because of the forced sale of their trucks after being unlawfully
discharged, reinstatement required a major equipment purchase.
These circumstances persuade me that a reasonable period beyond
the reinstatement offer should be permitted for arranging to
return to work, and that the August rather than July 1994 date
represents the appropriate cutoff point for Respondent's back pay
liability.
Citing lack of "a credible basis" for making an award, the
ALJ disallowed compensatory damages for losses incurred by
Lansdale in the sale of his two trucks. R. D. and O. at 39-40.
As the Assistant Secretary points out, courts presume market
value to be "the very antithesis of forced-sale value." BFP
v. Resolution Trust Corporation, 114 S.Ct. 1757, 1761 (1994).
Market value denotes the price expected in a fair market "fixed
by negotiation and mutual agreement, after ample time to find a
purchaser," rather than the price realized on "a sale forced by
the necessities of the owner . . . ." Id. In short,
"property that must be sold in [a forced-sale context] is
simply worth less." Id. at 1762.
Accordingly, Lansdale presumptively suffered some loss in
the forced sale of his trucks, which would buttress any evidence
of actual loss. I also am mindful that any uncertainty in the
amount of damages generally is resolved against the employer.
Pettway v. American Cast Iron Pipe Company, 494 F.2d 211,
261 (5th Cir. 1974). The problem here, however, is deriving an
estimated value for Lansdale's trucks in order to determine the
actual amount of any loss he may have sustained.
The mileage on the 1985 Freightliner and 1987 Kenworth
(TA600) totaled 500,000 and 600,000 miles, respectively. Both
trucks were equipped with sleeper bunks. Hearing Transcript (T.)
77. As to value, the evidence is largely anecdotal. T. 178-189;
Government Exhibit 6. Lansdale advertised the Freightliner in an
industry sales magazine for a period of nine weeks. It was
advertised for $18,500 during the first six weeks after which
Lansdale reduced the asking price to $16,500. A comparable
Freightliner was priced at $18,500 in the same industry sales
magazine.
Lansdale purchased the Kenworth from a dealer in August
1992. The total cash price listed on the security agreement was
$25,000. When forced to sell in July 1993, Lansdale advertised
the Kenworth at $25,000 over a six-week period. Although the
dealer who ultimately purchased the truck resold it for $26,995,
dealer-effected improvements, maintenance, and incentives may
have influenced the sales price. Absent evidence of the
condition of the trucks and some industry standard of valuation,
I am unable to determine what, if any, loss Lansdale sustained.
On the issue of relief, Respondent argues that the ALJ's
finding that Complainants took reasonable steps to mitigate their
damages is not supported by substantial evidence and that its
back pay liability should have terminated as early as April 1993.
Resp. Brief at 13-22. The real question here, however, is
whether Respondent met its burden of establishing (1) the
availability of comparable jobs and (2) Complainants' failure to
make reasonable efforts to find substantially equivalent and
otherwise suitable employment. The ALJ properly found that the
evidence proffered to this end was insufficient to meet the
burden. R. D. and O. at 36-37.
Complainants actively, albeit not entirely successfully,
sought alternative employment. "[T]heir behavior hardly
constituted the type of willful disregard for their own financial
interests required to breach their duty to mitigate damages."
R. D. and O. at 37. See Hufstetler at 56 (standard is
whether complainant "intentionally or heedlessly" failed to
protect own interests). They also cannot be blamed for seeking
opportunities outside of the trucking industry which, as the ALJ
recognized, "came only after both had made reasonable efforts to
find substantially similar employment in the trucking industry."
See Nord v. United States Steel Corp., 758 F.2d 1462, 1471
(11th Cir. 1985) (abandonment of unsuccessful two-and-one-half
year employment search in order to establish own business does
not terminate back pay period).
CONCLUSION
I adopt the ALJ's Recommended Decision and Order except that
I do not decide whether Complainants engaged in protected
activity under 49 U.S.C.A. § 31105(a)(1)(B)(i). I extend
the back pay period to August 24, 1994. While Complainants
otherwise might be eligible to receive compensatory damages for
losses incurred in the forced sale of their trucks, this record
does not support such an award.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
