DATE:  October 6, 1992
CASE NO. 92-STA-00022


IN THE MATTER OF

ASSISTANT SECRETARY OF LABOR FOR 
OCCUPATIONAL SAFETY AND HEALTH,

          PROSECUTING PARTY,

     AND

DAVID A. PHILLIPS,

          COMPLAINANT,

     v.

MJB CONTRACTORS,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     Before me for review is the August 11, 1992, [Recommended]
Decision and Order of the Administrative Law Judge (ALJ) in 
this case arising under Section 405, the employee protection
provision, of the Surface Transportation Assistance Act of 
1982 (STAA), 49 U.S.C. app. § 2305 (1988).  The Assistant
Secretary has filed a letter-brief, as permitted by 29 C.F.R. 
§ 1978.109(c)(2) (1991).  Respondent has not filed a brief.  
     Complainant alleged that Respondent constructively
discharged him because he refused to drive two vehicles with
serious safety defects.  The STAA prohibits an employer from
discharging an employee for refusing to operate a vehicle when it
would violate a Federal safety regulation, 49 U.S.C. §
2305(b).  
[PAGE 2]
Respondent does not dispute that it is an employer covered by the
STAA, that Complainant is a covered employee, or that Complainant
engaged in protected activities when he refused to drive. 
Instead, Respondent contends that Complainant voluntarily quit
his employment and therefore that no adverse action was taken
against Complainant.
     The ALJ found that Complainant reasonably believed he was
fired and that Respondent violated the STAA when it
constructively discharged Complainant for refusing to operate
admittedly dangerous vehicles.  R.D. and O. at 4.  The ALJ
ordered Respondent to offer Complainant reinstatement to his
former position, to pay back wages of $91 per day from the date
of discharge until the date of reinstatement (or declination of
the offer) except for the normal winter layoff period for
Respondent's employees, less payroll deductions and unemployment
compensation paid to Complainant, and to pay interest of ten
percent per year on the outstanding amount.  R.D. and O. at 4-5. 
     The Assistant Secretary urges affirmance of the ALJ's
decision except for one aspect of the back pay award, contending
that Respondent should not "receive credit for the unemployment
compensation received by [Complainant]."  Ass't Sec. Letter-Brief
of Sept. 3, 1992. 
     The ALJ's findings of fact, R.D. and O. at 2-3, are
supported by substantial evidence on the record taken as a whole,
and therefore are conclusive.  29 C.F.R. § 1978.109(c)(3). 
The ALJ correctly applied the law of constructive discharge in
this case, and found that Respondent effectively fired
Complainant when the supervisor told Complainant either to drive
an unsafe vehicle or turn in his keys and go home.  R.D. and O.
at 3-4.  Accordingly, I affirm the ALJ's conclusion, R.D. and O.
at 4, that Respondent violated the STAA when it constructively
discharged Complainant for refusing to operate dangerous
vehicles.  I adopt the appended ALJ's decision, except for the
interest rate on the back pay award and the credit for
unemployment compensation, as explained below.
     The ALJ ordered Respondent to pay back pay of $91 per day
from November 12, 1991, to January 10, 1992, and from February
10, 1992, to the date of reinstatement (or declination).  R.D.
and O. at 4.  He excluded from the period of back pay the normal
winter layoff period of one month, about which Complainant
testified.  T. 18.  The ALJ correctly excluded back pay during
the usual layoff period because Complainant would not have earned
wages from Respondent during that time.  See Cram v.
Pullman-Higgins Co., Case No. 84-ERA-17, Dec. and Ord., Jan.
14, 1985, slip op. at 2 (back pay not appropriate during time
that complainant would have been laid off, absent
discrimination).    
     I agree with the Assistant Secretary that Respondent should 
[PAGE 3]
not receive credit for the unemployment compensation paid to
Complainant.  In STAA cases, unemployment compensation is not
deducted from a back pay award.  See, e.g.,
Ass't Sec. and Moravec v. HC & M Transp., Inc., Case No.
90-STA-44, Final Dec. and Ord., Jan. 6, 1992, slip op. 22,
appeal docketed, No. 92-70102 (9th Cir. Feb. 18,
1992); Moyer v. Yellow Freight System, Inc., Case No. 89-
STA-7, ALJ Rec. Supp. Dec. and Ord. on Damages, June 18, 1990,
slip op. at 10, adopted, Final Dec. and Ord., Sept. 27,
1990, slip op. at 2, 11, remanded on other grounds sub
nom., Yellow Freight System, Inc. v. Martin, 954 F.2d
353 (6th Cir. 1992).  
     The ALJ ordered that interest on the back wages shall be
computed at the rate of ten percent, the rate the Assistant
Secretary suggested.  R.D. and O. at 4.  Secretarial decisions
awarding interest on back pay under the STAA provide that
interest be calculated in accordance with 26 U.S.C. § 6621
(1988), which specifies the rate for use in computing interest
charged on underpayment of Federal taxes.  Ass't 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;
Ass't Sec. and Gagnier v. Steinmann Transp., Inc, Case No.
91-STA-46, Sec. Final Dec. and Ord., July 29, 1992, slip op. at
6-7.  
                               ORDER
     1.  Respondent MJB Contractors shall offer Complainant
reinstatement to his former or a comparable position and tenure.
     2.  Respondent shall pay Complainant back pay at $91.00 per
day from November 12, 1991, through January 10, 1992, and from
February 10, 1992, until the date of reinstatement (or declination of offer), 
less authorized payroll deductions, with interest thereon calculated 
pursuant to 26 U.S.C. § 6621.
     SO ORDERED.

                              LYNN MARTIN
                              Secretary of Labor

Washington, D.C.