U.S. Department of Labor
Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB CASE NO. 98-104
ALJ CASE NO. 95-STA-38
DATE: May 29, 1998
In The Matter of:
STEVEN L. JACKSON,
COMPLAINANT,
v.
PROTEIN EXPRESS,
RESPONDENTS.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL DECISION AND ORDER
The Administrative Review Board found that Respondent Protein Express
(Protein) discriminated against Complainant Steven Jackson when it discharged him from his
position as a truck driver for refusing to drive a truck he believed was unsafe, in violation of the
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employee protection provision of the Surface Transportation Assistance Act of 1982, as amended
(STAA), 49 U.S.C.A. §31105 (West 1996). ARB Final Decision and Remand Order
(Remand Order), Jan. 9, 1997, slip op. at 4. The Board remanded the case to the Administrative
Law Judge for calculation of back pay, compensatory damages, if any, and attorney's fees. The
ALJ submitted a Recommended Decision and Order on Remand (R. D. and O. on Remand)
awarding $8,975 in back wages, with interest as provided in 26 U.S.C. §6621, and
$6,461.70 in attorney's fees. ALJ R. D. and O. on Remand at 6. The ALJ did not award any
compensatory damages.
Protein filed a brief in opposition to the R. D. and O. on Remand, arguing
that the Board's Remand Order was contrary to law and that Jackson is not entitled to any relief.
Protein argues that the Board improperly failed to treat the ALJ's original findings of fact as
conclusive as required by the applicable regulation, 29 C.F.R. §1978.109(c)(3) (1996), and
that the Board should have affirmed the ALJ's findings dismissing the complaint. In the
alternative, Protein argues that if any back pay and attorney's fees should be awarded, the Board
should reduce the amounts recommended by the ALJ.
1. Reconsideration of the Remand Order.
Protein's argument that the Remand Order should be reversed is in the
nature of a motion for reconsideration, and such motions are generally disfavored. INS v.
Doherty, 502 U.S. 314, 323 (1992); Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909
(3d Cir. 1985) (Reconsideration should be granted only to "correct manifest errors of law
or fact or to present newly discovered evidence.") Nevertheless, we will consider Protein's
arguments to clarify the holding in our earlier Remand Order.
As Protein correctly notes, the standard of review of an ALJ's decision
under the STAA regulations provides that "[t]he findings of the administrative law judge
with respect to questions of fact, if supported by substantial evidence on the record considered
as a whole, shall be considered conclusive." 29 C.F.R. §1978.109(c)(3). The
Board's
Remand Order does not run afoul of that provision, however. There were two crucial points in
the original recommended decision of the ALJ on which he either did not make a specific finding
or with respect to which he did not apply the appropriate legal test.
First, the ALJ equivocated in his finding regarding Jackson's refusal to
drive the tractor-trailer. The STAA protects an employee who refuses to operate a vehicle
because "the employee has a reasonable apprehension of serious injury to the employee or
the public because of the vehicle's unsafe condition." 49 U.S.C.A.
§31105(a)(1)(B)(ii). In discussing whether Jackson was covered by this provision of the
STAA, the ALJ stated that "Mr. Jackson's apprehension about driving the truck may have
been reasonable or it may have been contrived." Sept. 8, 1996 Recommended Decision
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and Order (Sept. 8 R. D. and O.) at 9. In the absence of a specific finding by the ALJ on this
point, the Board reached its own conclusion that Jackson's refusal to drive the tractor-trailer was
protected under the STAA. The Board based this finding on documentary evidence that a
mechanic who had inspected the equipment found problems with the brakes on both the tractor
and trailer, and that the brakes actually were repaired only ten days after Jackson refused to drive.
Remand Order at 3. In light of the lack of a finding by the ALJ on this issue, the STAA
regulation's substantial evidence rule did not preclude the Board from reaching its own
conclusion on this issue, i.e., that Jackson had a reasonable apprehension of serious
injury to himself or to the public related to the vehicle's condition. Further, as we stated in the
Remand Order, the ALJ erred in striking (apparently as hearsay) Jackson's testimony that the
mechanic at the repair shop advised Jackson not to drive the truck because it was unsafe.
Remand
Order at 1 n.2.
Second, the ALJ applied an incorrect legal standard in determining that
Jackson was not fired, but instead abandoned his job. Sept. 8, 1996 R. D. and O. at 10. The ALJ
focused exclusively upon the issue whether Jackson was, as a matter of objective fact, fired. As
we noted in our Remand Order, '"whether an employee has been discharged depends on
the reasonable inferences that the employee could draw from the statements or conduct
of the employer."' Remand Order at 4, quoting Pennypower Shopping News, Inc. v.
N.L.R.B., 726 F. 2d 626, 629 (10th Cir. 1984). As the Court in Pennypower noted:
The fact that there is no formal discharge is immaterial if the words or conduct of
an employer would logically lead an employee to believe his tenure had been
terminated. . . . [S]ince the company created the ambiguity which reasonably
caused the employees to believe they were discharged, or at least to believe their
employment status was questionable due to their strike activity, the burden of the
ambiguity must fall on the company.
Pennypower Shopping News, Inc. v. N.L.R.B., 726 F. 2d at 630.
Application of the correct legal standard to the uncontroverted facts
regarding Jackson's departure from Protein led the Board to conclude that Jackson reasonably
inferred that he had been fired. The owner of Protein, Timothy Grove, testified that Jackson
called him asking that the truck be repaired or that he be given another truck to drive. According
to Grove, Jackson said "I'm not driving [the truck] until it's fixed," Remand Order at
4. Grove also testified that after Jackson's January 14, 1995 exchange with Shelton, Jackson left
a telephone message for Grove saying "[i]f I'm being fired, I want to hear it from
you." Grove did not respond to Jackson's request for another truck to drive, nor did Grove
respond to Jackson's message asking for clarification of his status. Ultimately, Shelton removed
Jackson's belongings from the truck. Based on these transactions, we conclude that Jackson
reasonably believed he had been fired.
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Additional unrefuted facts regarding Shelton further support the
conclusion
that Jackson reasonably believed that he had been fired. Although the ALJ found that Shelton
was not Jackson's supervisor, and therefore lacked authority to fire Jackson, the legal test
requires
that we focus on what Jackson reasonably would have inferred regarding supervisory authority.
The ALJ made findings, which are supported by substantial evidence, from which we conclude
that it was reasonable for Jackson to infer that Shelton possessed supervisory authority, including
the authority to fire him, even if in fact Shelton did not possess such authority.
The ALJ found that, "Mr. Shelton testified that if the other drivers
would see him [Shelton] before they saw Mr. Grove, that they would take their problems to him
[Shelton] for some unknown reason. . . . When Mr. Grove is unavailable, drivers do contact Mr.
Shelton with their problems . . . ." Sept. 8, 1996 R. D. and O. at 4-5. The ALJ also found
that at least once Shelton had given Jackson 'a written warning to "drive slow" due
to the weight of the vehicle.' Id. at 6. Finally, both Grove and Shelton testified that after
Jackson complained to Grove about the tractor-trailer, Grove called Shelton to deal with
the problem. It was this phone call from Grove which prompted Shelton to call Jackson on
January 14, 1995. "Perry Shelton, an employee of Protein Express, telephoned Mr.
Jackson.
. . . Mr. Shelton asked Mr. Jackson whether he was going to drive the truck that day . . . . Mr.
Jackson refused to drive the truck and did not ask whether another truck was available. . .
."
Id. at 4. And although Jackson told Shelton not to remove his belongings from the truck,
Shelton did so anyway.
The actions of Shelton (whom Jackson reasonably could have perceived
as having supervisory authority) and Grove, when viewed in light of the proper legal standard,
amply support our conclusion that Shelton reasonably concluded that he had been fired.
Remand
Order at 4. The burden of ambiguity falls upon the Respondent. See, Pennypower
Shopping News, Inc. v. N.L.R.B., 726 F. 2d at 630. Thus the ALJ's conclusion that Jackson
had not been fired is based on a faulty legal premise.
2. Remedies.
The ALJ found that Jackson would have worked four days a week on the
day run at $75 per day and one night a week on the night run at $100 per night. He held that
Jackson was entitled to back pay for the period from January 14, 1995, the date of discharge, to
June 20, 1995, the last day of spring, because Jackson rejected an offer of reinstatement
sometime
in the spring. R. D. and O. on Remand at 4. See also Remand Order at 4. Protein
points out, however, that the unrefuted testimony of Grove, the owner of Protein, was that the
number of runs per week on the route Jackson drove was significantly reduced starting in mid-
January 1995 because of the loss of a major client. See Transcript of hearing at 105.
Protein submits that Jackson is entitled to back pay only for three days per week from January
14 to June 17, for one night run every other week, and for $175 for one day run and one night run
from June 17 to June 20, for a total of $6,225. Based on Grove's unrefuted testimony about the
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amount of work available during the period after Jackson was discharged, we adopt Protein's
proposed calculation of back pay.
The ALJ denied compensatory damages Jackson requested for interest on
an automobile loan, and we concur. Jackson purchased the car before he was terminated by
Protein, T. 72, so that the interest cannot be considered damages caused by his unlawful
discharge.
The ALJ also awarded $6,461.70 in attorney's fees based on itemized
billing records submitted by Jackson's attorney. Protein objects to an award of attorney's fees for
time spent on a motion for default judgment and a motion to compel because the ALJ denied an
award of these costs in his September 8, 1996 Recommended Decision and Order and the Board's
Remand Order did not reverse that finding. We do not agree. The STAA provides that, when
an order is issued in favor of the complainant, "the Secretary may assess against the person
against whom the order is issued the costs (including attorney's fees) reasonably incurred by the
complainant in bringing the complaint." 49 U.S.C.A. §31105(b)(3)(B). Time spent
in preparation of discovery and procedural motions is a cost reasonably incurred in bringing the
complaint and is recoverable under the statute. We adopt the ALJ's recommendation of an award
of attorney's fees of $6,461.70.
Accordingly, it is ordered that Respondent Protein Express pay
Complainant Steven Jackson $6,225 in back wages, with interest as provided in 26 U.S.C.
§6621, and $6,461.70 in attorney's fees.