Ass't Sec'y & Hamilton v. Sharp Air Freight Service, Inc., 91-STA-49 (Sec'y July 24, 1992)

May 9, 2009

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Ass't Sec'y & Hamilton v. Sharp Air Freight Service, Inc., 91-STA-49 (Sec'y July 24, 1992)

U.S. DEPARTMENT OF LABOR

SECRETARY OF LABOR
WASHINGTON, D.C.

DATE: July 24, 1992
CASE NO. 91-STA-49

IN THE MATTER OF

ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH,
PROSECUTING PARTY,

AND

DON HAMILTON,
COMPLAINANT,

SHARP AIR FREIGHT SERVICE, INC.,
RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

DECISION AND ORDER OF REMAND

On March 31, 1992, the Administrative Law Judge (ALJ) issued a [Recommenced] Decision and Order (R.D. and O.) in this case, which arises under the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1988). Pursuant to the regulations implementing the STAA, the ALJ's decision is now before me for review and issuance of the final decision. See 29 C.F.R. § 1978.109 (1991).

The ALJ determined that Respondent violated the STAA by discharging Complainant because he refused to comply with a dispatch that contemplated a violation of the hours-of-serviceregulations at 49 C.F.R. Part 395 (1991). As a remedy for the unlawful discharge, the ALJ found that Complainant is entitled to reinstatement to his former position with Respondent, back pay with interest, and expunction from his personnel records of any reference to the unlawful discharge.

Both Respondent and the Assistant Secretary of Labor for Occupational Safety and Health have filed briefs in response to the ALJ's decision as permitted by 29 C.F.R. §

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1978.109(c)(2). Respondent challenges only the ALJ's calculation of back wages, arguing that the amount is contrary to the evidence presented at the hearing. Respondent also requests that the record be reopened for submission of additional relevant evidence. The Assistant Secretary contends that the ALJ's back pay calculation and other rulings are correct, but takes issue with the particular interest rate specified by the ALJ. The request to reopen the record should be denied because, it is argued, Respondent had a full opportunity to address the back pay issue at the hearing and reopening the record would unduly delay the proceeding.

The entire record has been reviewed, and I conclude that the ALJ's finding that Respondent discharged Complainant in violation of the STAA is supported by substantial evidence and is in accordance with law.¹ I, therefore, accept his decision in this regard. 29 C.F.R. § 1978.109(c)(3); see Boone v. TFE. Inc., Case No. 90-STA-7, Sec. Final Dec. and Ord., Jul. 17, 1991, slip op. at 6-7, appeal docketed, No. 91-2659 (4th Cir. Sept. 16, 1991); McGavock v. Elbar. Inc., Case No. 86-STA-5, Sec. Final Dec. and Ord., Jul. 9, 1986, slip op. at 7.

I further agree that as expressly mandated by the STAA, Complainant is entitled to immediate reinstatement to his "former position together with the compensation (including back pay), terms, conditions, and privileges of the complainant's employment . . . ." 49 U.S.C. app.§ 2305(c)(2)(B). Accordingly, as pressed by Complainant, Transcript (T.) at 208-09, Complainant is entitled to retroactive seniority and retroactive health benefits status to the extent that it would affect current or future entitlement to benefits. Zipes v. Trans World Airlines. Inc., 455 U.S. 385, 399-400 (1982); Hufstetler v. Roadway Express. Inc., Case No. 85-STA-8, Sec. Final Dec. and Ord., Aug. 21, 1986, slip op. at 49, aff'd sub nom. Roadway Express. Inc. v. Brock, 830 F.2d 179 (llth Cir. 1987).²

Reluctantly, however, I conclude that I must remand this case for reconsideration of the amount of back pay to which Complainant is entitled. At the hearing, Respondent's president, Jaishri Singh, testified that Hamilton was an on-call seasonal employee (December to April) and was never a full-time

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employee. T. at 64. Singh further testified that in April 1991, two events occurred which, he claims, virtually eliminated Hamilton's chance of receiving any further work with Respondent. Starting on April 1, all work assignments were dispatched according to a union-approved seniority list, on which Hamilton was the 59th driver, and on April 15, Respondent cut back on the scope of its service, thereby reducing the amount of work available. T. at 65-67.

Complainant testified that although he had worked only from December to April in 1989-90, he had accepted an offer to work full-time for Respondent prior to his discharge. T. at 181. He testified that Respondent's business operates by a phone call not a schedule, even for the most senior driver. T. at 138-39. Complainant also indicated that he was aware that new union procedures were to be implemented on April 1, and he acknowledged the seniority system. T. at 178, 208-09.

The ALJ found that Complainant was a full-time employee, and he accepted the calculation of back pay urged by the Assistant Secretary. R.D. and O. at 3, 8-9. Specifically, he computed Complainant's average weekly wage based on Complainant's 1991 W-2 income tax form and found gross back pay for 1991 to be $36,389.08. After subtracting interim earnings, he found Complainant entitled to $27,036.35 with additional back pay continuing to accrue at the rate of the average weekly wage until Respondent makes an unconditional offer of reinstatement.

Although I agree that Complainant was a full-time employee, the ALJ erred in not addressing Respondent's general arguments relating to Hamilton's position on the seniority list and Respondent's work reduction. The purpose of a back pay award is to make "persons whole for injuries suffered for past discrimination." Nelson v. Walker Freiaht Lines. Inc., Case No. 87-STA-24, Sec. Dec. and Ord. of Remand, Jan. 15, 1988, slip op. at 5, quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975). In keeping with the objective, it must appear that the employer's misconduct caused the complainant to lose the wages he claims as back pay. Gaddy v. Abex Corp., 884 F.2d 312, 320 (7th Cir. 1989); cf. Francis v. Bogan. Inc., Case No. 86-ERA-8, Sec. Final Dec. and Ord., Apr. 1, 1988, slip op. at 6 (the period of an employer's liability ends when the employee's employment would have ended for reasons independent of the violation found).

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Although the record does not contain precise information, there is uncontradicted testimony tending to show that because of the implementation of the seniority list system of dispatch on April 1, Complainant would not have earned the gross back pay claimed. The testimony cannot be ignored.

This case is, therefore, remanded for the ALJ to reconsider this issue and to redetermine Complainant's back pay. Interest on the back pay award shall be calculated in accordance with 26 U.S.C. § 6621 (1988). Asst. Sec. and Park v. McLean Transportation Services' Inc., Case No. 91-STA-0047, Sec. Final Dec. and Ord., June 15, 1992, slip op. at 5. Respondent's motion to reopen the record is granted and any party may proffer to the ALJ evidence on the limited issue of the effect, if any, of the seniority list system of dispatch on Respondent's back pay liability. See Gaddy, 884 F.2d at 320. It is anticipated that the ALJ will submit an appropriately revised recommended decision and order within 90 days of the date of this Decision and Order of Remand.

SO ORDERED.

LYNN MARTIN
Secretary of Labor

Washington, D.C.

[ENDNOTES]

¹A few of the ALJ's findings regarding the merits are either erroneous or questionable, but they do not affect the outcome. On page 3 of the R.D. and O., the ALJ erroneously referred to La Guardia Airport. Also, it is not clear from the record that Complainant called the dispatcher as many times as the ALJ indicates in paragraph 8 on page 4 of his decision.

²I agree that this record does not show that Respondent has made a bona fide unconditional offer of reinstatement. R.D. and O. at 9.