Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002
Case No.: 91-STA-45
In the Matter of:
WILLIE W. SMITH,
Complainant,
v.
YELLOW FREIGHT SYSTEM, INC.,
Respondent.
Philip L. Harmon, Esq., for Complainant
Michael C. Towers, Esq., for Respondent
Before: NAHUM LITT, Chief Judge
FINAL RECOMMENDED DECISION AND ORDER
On November 13, 1992 the undersigned issued a Partial Recommended Decision and Order in favor of Complainant. That decision ordered immediate reinstatement of Complainant and found Respondent liable to Complainant for all loss of income resulting from the unlawful discharge. A hearing was scheduled for January 13, 1993 to determine Complainant's loss of income.
Prior to the January 13, 1993 hearing, both parties indicated that an agreement as to the loss of income and other damages could be reached without hearing. On February 17, 1993 this agreement, in the form of stipulations signed by both parties, was filed with this office. These attached stipulations are expressly incorporated and, along with the Partial Recommended Decision and Order, constitute the Final Recommended Decision and Order.
Nahum Litt
Chief Judge
Dated: February 24, 1993
Washington, D.C.
OFFICE OF ADMINISTRATIVE LAW JUDGES
UNITED STATES DEPARTMENT OF LABOR
Case No.: 91-STA-45
WILLIE W. SMITH,
Complainant,
vs.
YELLOW FREIGHT SYSTEM, INC.,
Respondent.
STIPULATION
WHEREAS, on or about November 13, 1992, The Honorable Nahum Litt, Chief Administrative Law Judge of the Office of Administrative Law Judges ("ALJ") entered his Partial Recommended Decision and Order ("Partial Recommended Decision") in favor of Complainant finding, inter alia, that "Respondent is liable to William W. Smith for all loss of income resulting from its unlawful discharge of Complainant on November 3, 1989", and scheduling a hearing to determine the amount of Complainant's loss of income to be held on January 11, 1993, in Columbus, Ohio "in the event that the parties are unable to stipulate as to the back wages owed"; and
WHEREAS, pursuant to the terms of the ALJ s Partial Recommended Decision, complainant was reinstated to his former position with Respondent on or about December 12, 1992;
WHEREAS, Respondent has appealed the Partial Recommended Decision of the ALJ to the Secretary of Labor, and has filed its Brief in Opposition to the ALJ's Partial Recommended Decision pursuant to the provisions of 29 C.F.R. § 1978.109(c) (2); and
WHEREAS, the Secretary of Labor has not yet entered a final order in the above-styled case pursuant to 29 C.F.R. § 1978.109(C). and
WHEREAS, the parties desire to stipulate to the amount of loss of income and any other damages claimed by Complainant to avoid the necessity of further hearings and proceedings before the ALJ, without prejudice to Respondents appeal to the Secretary of Labor pursuant to 29 C.F.R. § 1978.109(C)
It is hereby stipulated between Complainant and Respondent, as follows:
1. It is the intent of this Stipulation to resolve any and all claims for back pay, loss of income, and any other of Complainants claims for damages from Respondent arising out of Complainants' discharge from employment with Respondent on or about November 3, 1989.
2. The parties agree that the amount of Complainant's lost income since November 3, 1989, attributable to back wages is $98,912.00. In the event the Partial Recommended Decision of the ALJ is sustained after the exhaustion of all appeals available to the Respondent (including without limitation Respondent s pending appeal to the secretary of Labor, any appeal to the United States Court of Appeals for the Sixth Circuit, and any appeal to the Supreme Court of the United States) this amount of back wages will be paid to Complainant less any and all federal, state, and local tax and Social Security withholding required by law.
3. The parties agree that the amount of interest payable to Complainant in the event the Partial Recommended Decision of the ALJ is sustained after appeal (for the period beginning November 3, 1989 through the date of this Stipulation) shall be $9,398.00. However, the parties' agreement as set forth in this paragraph shall not be considered either a waiver by Complainant of any right he may assert to claim additional interest allegedly accruing after the date of this Stipulation, nor will the parties' agreement as set forth in this paragraph be considered an admission by Respondent that Complainant is entitled to any additional interest allegedly accruing after the date of this Stipulation.
4. It is agreed that, in the event the ALJ's Partial Recommended Decision is sustained after the exhaustion of any and all appeals available to Respondent, Respondent will make pension contributions (to the pension plan provided for in the applicable collective bargaining agreement between Respondent and the Teamsters' Union) sufficient for Complainant to have vesting service credit for each of the calendar years (1989, 1990, 1991, 1992) in which his discharge was in effect.
5. The parties agree that, in the event the ALJ's Partial Recommended Decision is sustained after the exhausting of all appeals available to Respondent, Respondent will pay Complainant the amount of claims which he can satisfactorily document, up to a maximum of $2,000.00, which would have been payable to Complainant during the period of his discharge under the terms of the health and welfare plan provided for in the applicable collective bargaining agreement between Respondent and the Teamsters Union ("Health and Welfare Plan"). However, such claims will not be payable to the extent that such claims are covered by any other insurance coverage Complainant may have or have had, and Respondent shall not be responsible for paying any amounts for which Complainant has already been reimbursed, or has a right to be reimbursed, from a collateral source. It is further agreed that Respondent will not be required to pay any amounts into the Health and Welfare Plan and that the parties will execute a consent order reflecting the terms of this agreement on health and welfare to the extent that such may be necessary for this agreement to be binding on the Union and the Health and Welfare Plan.
6. In the event the Partial Recommended Decision of the ALJ is sustained after exhaustion of all appeals available to Respondent, Respondent will pay to Complainant and his attorney Phillip L. Harmon, Esquire, attorney fees in the amount of $30,000.00. It is agreed that there will be no tax or Social security withholdings with respect to this payment, but any required reports to the taxing authorities will be made. The parties' agreement as to the amount of attorneys fees (representing services rendered by Attorney Harmon through the date of this stipulation) shall not be considered as a waiver by Complainant or his counsel to seek recovery of any attorney fees incurred in connection with any appeals filed by Respondent, nor shall such agreement be considered as an admission by Respondent that either Complainant or his counsel is entitled to recover any attorneys fees incurred after the date of this Stipulation or in connection with any appeals filed by Respondent.
7. In the event the Partial Recommended Decision of the ALJ is sustained after the exhaustion of all appeals available to Respondent, Complainant will execute, in consideration of Respondents payment of the above amounts, and in consideration of Respondents satisfaction of the conditions stated above, a general release in a form. acceptable to Respondent, of any and all of Complainant's claims for loss of income, back pay, pension claims, health and welfare claims, attorney fees, and interest, and other claims for damages or monies against Respondent, arising out of Complainants November 3, 1989 discharge or otherwise. However, the Complainant's execution of such a general release will not be construed as a waiver by Complainant of any right he may claim to recover additional interest or attorney fees incurred or accruing after the date of this Stipulation, nor shall Respondents acceptance of such a release be construed as an admission by Respondent that Complainant has any right or claim to any additional interest or attorney fees incurred or accruing after the date of this Stipulation.
8. It is agreed and understood that this Stipulation will be enforceable only if the Partial Recommended Decision of the ALJ is sustained on appeal after exhaustion of all of Respondent's rights of appeal, and that Respondent's agreement to the terms of this Stipulation will not be considered an admission of any liability whatsoever. In the event the ALJ' s Partial Recommended Decision is reversed or modified on appeal, the parties will be governed by the order of the Secretary of Labor or the reviewing court which reverses or modifies the ALJ's Partial Recommended Decision.
Philip L. Harmon
Attorney for Complainant
Willie W. Smith .
John B. Gamble, Jr.
Attorney for Respondent
Yellow Freight System, Inc
