ARB CASE NO. 99-061
ALJ CASE NO. 98-STA-34
DATE: January 12, 2000
In the Matter of:
ASSISTANT SECRETARY OF LABOR FOR OCCUPATIONAL SAFETY AND HEALTH,
PROSECUTING PARTY,
and
HARRY D. COTES,
COMPLAINANT,
v.
DOUBLE R TRUCKING, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Prosecuting Party:
Laura V. Fargas, Esq., Mark J. Lerner, Esq., Daniel J. Mick, Esq., Donald G. Shalhoub,
Esq.,
Joseph M. Woodward, Esq., Henry Solano, Esq., U. S. Department of Labor,
Washington, D. C.
SUPPLEMENTAL DECISION AND ORDER
By Order dated July 16, 1999, this Board ordered Double R Trucking to pay
back wages with interest to Harry D. Cotes, an employee fired for engaging in protected activity
under the Surface Transportation Assistance Act of 1982, as amended, 49 U.S.C.A. §31105
(1997). In a separate order issued on the same date, we also requested the parties to provide us with
the exact amount of back pay, including interest, which Double R owed to Cotes, and an explanation
of the methodology used in determining these figures. Double R Trucking failed to respond;
however, the Assistant Secretary provided the requested figure as well as a description of the
methodology used in the determination.
[Page 2]
Back Pay
Double R owes $12,171.04 in back pay for its discriminatory termination of
Cotes. The methodology (but not the figures) used by the Assistant Secretary in calculating back pay
is adopted by the Board. The back pay amount was determined as follows:
(1) The number of straight and overtime hours Cotes worked during the 28
weeks from October 1, 1997, through April 15, 1998, was ascertained. (October 1 was used because
that was the date of Cotes' last raise, and April 15 was used because that was the date Cotes was
terminated.) Cotes worked 1041 hours straight time and 246.5 hours overtime1 during this period.
1 The Assistant Secretary determined that
Cotes worked 1015.5 hours straight time and 228 hours overtime in the relevant period. Asst. Sec.
Filing re Back Pay at 4. These figures are incorrect, however, as the Assistant Secretary failed to
include two data points in the calculation. Specifically, the Assistant Secretary omitted from his
calculation 25.5 hours of straight time shop hours that Cotes worked during the February 1 to
February 15, 1998, pay period, and 18.5 hours of shop overtime hours during the October 1 to
October 15, 1997, pay period. These incorrect figures adversely affect all of the Assistant Secretary's
subsequent calculations and thus the proffered figures could not be adopted by the Board.
2 The interest figures used by the
Assistant Secretary were derived through conversations with various employees of the IRS. Assist.
Sec. Filing re Back Pay at 7-8. In arriving at the interest owed, the Assistant Secretary used the
proper interest rate (see discussion supra), but apparently compounded the interest on a daily
basis. The Assistant Secretary has failed to cite any case, and we have found none, in which the
Board has ordered interest to be compounded daily.