I issued my original Recommended Decision herein on October 8, 1986. After appeal by Respondent the Secretary remanded that decision to me for the taking of further evidence on the issue of the credibility of Complainant. On April 1, 1987 after considering the additional evidence as ordered by the Secretary, I issued a Recommended Decision on Remand in which I affirmed my original holding that Respondent had discharged Complainant in violation of § 405 of the STAA and was therefore obligated to reinstate him without loss of pay or benefits from the time of his discharge to the time of his reinstatement. I noted in this order that the

record before me was insufficient to permit me to calculate the back wages due.

    Respondent again appealed. On that second appeal Respondent for the first time raised the issue that Complainant should not be ordered reinstated because (1) he was physically incapable to fill his job of truckaway driver (2) he is taking a prescription drug, Flexuril, which incapacitates him from driving a truck. On July 29, 1987 the Secretary affirmed my Recommended Decision of April 1, 1986 and remanded the case to me solely for the purpose of determining the damages due Complainant.

    Respondent moved for Reconsideration of that part Secretary's order which ordered reinstatement. On December 27, 1987 the Secretary denied that motion and ordered me to carry out his July 29, 1987 Order to determine the damages due Complainant.

November 1986 and continued to receive the same until September 1987 when he became reemployed. See infra.

    After Local 557 failed to settle the grievance in the two initial steps provided by the agreement between Respondent and Local 557 the grievance was referred to the Joint Grievance Arbitration Committee which held a hearing in chicago in February 1986. Complainant actively participated in all stages of Local 557's attempt to get him reinstated. He conferred with Local officials and he made notes in preparation for the February 1986 hearings and testified at the hearing. Early in March 1986, the Joint Grievance Arbitration Committee refused to proceed further with the grievance. This refusal made Complainant's dismissal final under the grievance procedure.

    On April 9, 1986 the Secretary of labor issued a Preliminary order finding that Complainant had been discharged in violation of the STAA and ordering his reinstatement with back pay. The Respondent requested that a hearing be held before an Administrative Law Judge and the complaint was assigned to me. Complainant met and conferred with his attorney and with the attorney for the Department of Labor before this hearing. He took a very active part in the hearing held a July 1 and 2, 1986. As previously stated I ordered reinstatement with back pay on October 8, 1986.

    Until the March 1987 decision of the Joint Grievance Arbitration Committee, which had let Complainant's discharge stand, Complainant engaged in only a very limited amount of active employment search. As required by UE regulations he had signed up with the Maryland Employment Service holding himself out as available for work. He also signed up with Maryland's Veterans Employment Service. He received no job referrals or jobs from these sources. He also told Tsambikas, the business agent for the truckaway drivers of Local 557 to let him know if employment opportunities came up. He was not informed of any.

    After the final turn-down of the grievance Complainant asked Tsambikas to put him on the list of laid-off truckaway drivers maintained by the truckaway driver section of Local 557, which under the Eastern Conference Area Agreement with Respondent covers Respondent's drivers. Drivers from this list are to be given consideration before other drivers are hired. Complainant also started to visit the union office once a week or every 10 days to see whether employment was available. He attended the

weekly meetings of the truckaway members of Local 557 where he questioned union officials and other drivers about the availability of work. He was not informed of job opportunities and received no work offers from these sources during the entire period of his unemployment.

    In July 1986 Complainant personally visited various freight hauling companies including Preston Trucking and Baltimore Tank Lines to inquire about the availability of trucking work. When informed at these companies that no work was then available Complainant left without filing an application that might be considered by the prospective employer should work become available. Complainant received no job offers as the consequence of these visits.

    Also in July 1986 Complainant applied for a job as a civilian electrician at Fort Meade, Maryland. He was turned down for that job.

When the foreman inquired whether Complainant knew of any good workers interested in a job Complainant offered his own services and was hired on September 18, 1986. Complainant terminated this work on February 16, 1987 and began work for Baltimore Gas and Electric Company on February 17, 1987 as a lineman without losing a day's work. He was so employed at the time of the February 1988 hearing.

    Complainant's work of lineman requires occasional climbing, some driving and, according to him, is physically demanding. His knee has given him no problems in this work nor in that for C.W. Wright Construction. Complainant has taken Flexuril only once or twice since his discharge in October 1985.

    After an administrative investigation by the Maryland Department of Employment it was determined on November 11, 1987 that Complainant had committed fraud in obtaining UE and that he was to return $7,175 the UE paid to him during his entire period of unemployment. This decision was pending appeal at the time of the February 1988 bearing.

I. Reinstatement

    a. Fitness for Service. The issue of reinstatement was essentially disposed of by the Secretary in the July 29, 1987 Order and in his Order of December 2 denying reconsideration of his previous Order. In both Orders the Secretary found that both the question of whether the state of Complainant's knee and of whether his taking Flexuril, a drug prescribed by his physician for the pain in his knee, would preclude reinstatement should have been raised at the initial bearing before me and could not be raised on appeal to the Secretary. Nevertheless the Secretary considered the reinstatement issue on its merits and found that there were none. She ended her Order denying the Motion for Reconsideration as follows:

Respondent cannot repeatedly try to raise objections and exceptions after passing the proper place and time for such issues. It would be unconscionable to order an additional hearing and decision for each item which Respondent neglected to bring up on time . . . The ALJ shall carry out the July 29, 1987 remand order.

    Despite these strong words and direct order of the Secretary, Respondent now, in effect, urges me to disregard both and to reopen the question of Complainant's fitness for reinstatement. This I cannot and will not do.

1985. I credit this testimony. Even, if the Respondent had shown, which it did not, that this ingestion of Flexuril took place after the July 2, 1986 hearing, such ingestion would not establish that Complainant is disqualified from operating a truck under § 392.4 of the Regulations. The need for a very rare taking of a prescription drug that would preclude a driver from driving does not establish that a person is permanently unqualified from employment as a truck driver. Here Complainant established that he would not drive a load after he had taken Flexuril and that the need to take Flexuril arose very, very rarely. The Respondent even failed to establish that Complainant still had a valid Flexuril prescription at the time of the February 23 and 24, 1988 hearing.

    For the reasons set forth above I conclude that Complainant still is entitled to be reinstated as of the time of his discharge and that except for the deduction of wages he earned after September 18, 1986, back wages are due in full from October 1, 1985 and to the date Respondent offers reemployment.

    (b) Mitigation of Damages. The Respondent urges that Complainant is not entitled to any back wages because he failed to mitigate Respondent's damages by engaging in a diligent job search after his discharge. I do not agree.

    Before it can be determined whether a Complainant failed his duty to mitigate damages by not obtaining a job after his discharge it must be established that "suitable" jobs existed which an appropriate search would have discovered. The Respondent has the burden of establishing that such a job exists. Ramisas v. Michigan Department of Public Health, 714 F.2d 614 (6th Cir. 1983) cert. denied 466 U.S. 950 (1984). N.L.R.B. v. Laborer's Union of North America 748 U.S. 1001 (5th Cir. 1985) at 1005. A suitable job has been defined as . . . the substantial equivalent of the position from which the claimant was discriminatorily terminated and must afford the claimant virtually identical promotional opportunities, compensation, job responsibilities, working conditions, and status. Ramises supra at 624, citing Ford Motor Co. v. EEOC 458 U.S. 219, 102A S.Ct. 3057 (1982). In the latter case the Supreme Court held that while an employee's duty to mitigate damages required the acceptance of a substantially equal job it did not require that the employee "go into another line of work." Id. at 458 U.S. at 232-33, 102A S.Ct. 3057.

    The Respondent relies on the following to establish the existence of suitable jobs (1) the testimony of George Long, the dispatcher for the freight hauling drivers' part of Local 557 (2) the testimony of representatives of two local freight hauling companies and (3) advertisements from the Sunday Baltimore Sun from October 6, 1985 to February 7, 1987. None these lobs are shown to be substantially equal to the job Complainant had with Respondent and therefore cannot establish the existence of suitable jobs.

    The job opportunities offered by the Local 557 dispatch service for freight hauling drivers certainly is not the substantial equivalent of Complainant's regular job with Respondent which was permanent and offered considerable fringe benefits. The dispatch service for Local 557 freight hauling drivers is primarily designed to provide temporary jobs, it does not seek to place drivers permanently. Moreover, its rules for referring a driver to such temporary employment are onerous. Drivers have to pay a $26 monthly fee. The service requires early reporting at the Union hall each day for which work is sought with no guarantee that work will be available that day. A driver wishing work must return daily until he is placed. Once employment is obtained through this service it can last as little as one day, it cannot exceed more than 10 days, after that the driver has to return to the dispatch office and the bottom of the list again to report daily until he is again sent out. While there is a possibility that an employer might eventually give permanent employment to a temporary driver hired through the Local 557 dispatch, this is only a possibility which the employer can only make actuality by notifying the Union after a driver has completed his 10 day stint as a temporary employee. No specific examples or estimates of the frequency of the temporary permanent conversions were given.

    A driver cannot accrue seniority during the temporary dispatch, from Local 557. According to Complainant, the drive from his home to Local 557 dispatch office require a 2 hour drive, which in view of the 6:30 A.M. roll call would necessitate his leaving his house at 4:30 A.M. The work offered by the Local 557 dispatch service is clearly not a suitable substitute for the job from which Complainant was discharged in violation of the STAA.

    Operations Manager Hatfield for Baltimore Tank Lines, operator of petroleum tankers testified that his company had been hiring tractor-trailer drivers between October 1985 and

Complainant lives. Thus these advertisements do not establish the availability of suitable jobs, their considerable bulk merely clutters the record.

    For the reasons set forth above I conclude that Respondent has not established that suitable employment for Complainant existed which he could have found by an appropriate search. Respondent therefore has not established that Complainant failed to mitigate its damages.

    However, even if Respondent had established that suitable jobs existed, I would have to find on the basis of the record here that Complainant acted reasonably to mitigate damages and that Respondent cannot have its obligation for lower pay eliminated or reduced by Complainant's alleged failure to engage in an appropriate job search.

    The Assistant Secretary does not contest that an unjustifiably discharged employee is under some duty to mitigate damages. It is the nature of that duty that is in dispute here.

    In determining the nature of the duty to mitigate damages I must be guided by the view expressed by the Secretary who is the initial reviewing authority under the STAA. In Hufstetler v. Roadway Express, Inc. 85 STA 8, the Secretary pointed out that while the whistleblower provisions of STAA, in violation of which Complainant was discharged, were patterned after the National Labor Relations Act (NLRA) these two statutes differ in that the remedial provision of the NLRA only require the payment of back wages whereas the STAA provides for compensatory damages in addition to back pay. Because the policy of STAA is to promote public safely the Secretary likened its violation to a willful tort in which the injured person can recover unless he "intentionally or heedlessly failed to protect his own interests" citing Restatement (Second) of Torts § 912. Complainant has been actively attempting to get reinstatement either through the Local 557 or through the Department of Labor. Had such reinstatement been granted Respondent would have incurred no further liability to Complainant. Instead Respondent had Complainant escorted off its premises by security police when he presented himself for reinstatement after the Secretary's unstayed and unappealed order of July 29, 1988.

    Complainant's activities in attempting to get reinstatement may, in this instance, be viewed as an attempt to mitigate

Respondent's damages. Complainant's role in attempting to obtain reinstatement was not a passive one of just filing the complaint and grievance but he very actively persued his remedies by retaining an attorney, by conferring with that attorney, with Local 557 and with Department of Labor officials, by participating in Local 557 proceedings, including a hearing in Chicago and the Department or Labor hearings in Washington. Not only are such activities difficult to combine with an active job search, but also with any job that might result from such a job search.

was dropped, Claimant's method of job hunting paid off, he became employed by C.W. Wright Construction Company to install power lines for Baltimore Gas and Electric Company. Thus if proof of the pudding be in the eating Complainant has proved his pudding.

    It is Respondent's position that the pudding came too late, that a more diligent job hunt would have returned Complainant to the rolls by the gainfully employed much sooner. In making this argument Respondent entirely disregards that under Hufstetler, supra Complainant is only under an obligation to refrain from "intentionally and heedlessly" increasing his damages. While Complainant's job hunt might have been somewhat more efficacious if undertaken along the lines suggested by Respondent, i.e., leaving applications and reading and following up want ads, it certainly cannot be described as heedless and intended not to produce results.

    Even if the more stringent, "reasonable diligence" test see Hufstetler, Ramisas and Ford Motor, supra were to be applied here, Complainant's job search e forts would meet that test. The diligence required by that test is "reasonable" not "utmost" or "great". Complainant used a method of job hunting he had found successful in the past. This method was successful within five months after he started using it, a not unreasonable length of time, considering that according to Complainant, a young man in his late twenties or early thirties, he was trying to locate a job with a future to take the place of the well paying permanent job from which he had been wrongfully discharged.

    For the reasons set forth above I conclude that complainant adequately met his duty to mitigate damages between October 2, 1985 and September 18, 1986 and that Respondent is not entitled to a reduction of its obligation to pay damages accrued during that period.

    Respondent argues that Complainant failed in his duty to mitigate damages by accepting the jobs with C.W. Wright Construction and Baltimore Gas and Electric Company because those jobs allegedly paid less than those of tractor trailer drivers and that therefore Respondent should be relieved of its obligation to pay Complainant the difference in wages he would have earned as a

trailer truck driver and the wages he received at C.W. Wright. This argument is utterly without merit. Complainant had tried for 5 months to get employment as a driver of a tractor trailer and had been unsuccessful. His unemployment compensation had ended. He located a fairly well paying job in a different line of work and took it. Had he failed to take up this offer Respondent would surely argue that such failure amounted to a failure to mitigate damages. Moreover the C.W. Wright Company job directly lead to the better paying job with its contractor Baltimore Gas and Electric Company.

    To argue, as does Respondent, that the Baltimore Gas and Electric job pays so little that by taking it Complainant forfeits his right to the differential between that pay and what Respondent pays its truckaway drivers, verges on the ridiculous. In the 46 weeks Complainant worked for Baltimore Gas and Electric Company he earned $26,164. This extrapolates to an annual salary of $29,610. This is more then he could have earned as a driver for Baltimore Tank Lines and almost as much as the most unlikely maximum he could have earned as a driver for Preston Trucking, the very jobs which Respondent insists Complainant should have pursued more diligently in order to meet his obligation to minimize damages. Apparently Respondent feels that consistency in these matters is of the foolish variety that is the hob goblin of little minds. For the reasons previously stated Complainant not only had a right but an obligation to take this job. Accordingly, I find that Complainant by accepting this job with Baltimore Gas and Electric fully met his duty to mitigate damages.

    For the reasons set forth above I conclude that Claimant has fully met his obligation to mitigate languages and that the damages found due to him must be paid in full.

II. Determination of Wages Due

    The determination of back wages due Complainant is complicated by the fact that truckaway drivers are not paid a fixed rate but by the trip. These drivers also work no set hours except that the total hours they may work a day and/or a week are limited by Department of Transportation regulations. Trips are picked by driver seniority and each driver exercises his seniority to select the type of trip he prefers such as long run versus short run. Because of this earnings of drivers vary, even though they may be close each other on the seniority roster.

for 1986 and 1987 respectively. In view of the fact that the hourly rate for truckaway drivers during 1986 and 1987 was $14.10 and $14.70 respectively these extrapolated hourly pay figures are a clear indication that overtime was worked, i.e. that the drivers worked an average of more than forty hours a week. Given these figures and the irregularity of the hours worked the Assistant Secretary's method is reasonable. Respondent who must make contributions based on the hours worked and keep the logs required by the Department of Transportation of the hours worked by each driver has the correct information available and could have produced it to contradict the accuracy of the Assistant Secretary's assumption. It failed to do so. Moreover as Respondent does not deny that it made contributions to the Pension Fund on behalf of Complainant while he was in its employ it would be inequitable to let it benefit from its wrong by relieving it totally from any contribution to that fund on Complainant's behalf during the period of Complainant's unlawful discharge.

    Respondent also urges that it should not be required to make contributions to the Pension Fund on behalf of Complainant after February 18, 1986, the date Claimant was hired by Baltimore Gas and Electric Company and became a participant in the pension fund of that employer. Respondent's argument that past February 18, 1987 payments into the Local 575 Pension Fund would amount to dual coverage is not well taken. If Complainant accepts the offer of reinstatement Respondent has been ordered to make such reinstatement must be without any diminishment of rights and privileges he would have had had Respondent not wrongfully discharged him. His right to participate in the Pension Fund is one of these privileges. To relieve the Respondent of the obligation to make the appropriate contribution during all of Complainant's absence from the payroll due to his unlawful discharge by Respondent would deprive Complainant from obtaining the same pension rights he would have had but for his discharge, a result inconsistent with the concept of making Complainant whole for Respondent's unlawful act. As Baltimore Gas and Electric Pension Fund does not vest until an employee has been employed for ten years Complainant's acceptance of reinstatement with Respondent would end his interest in Baltimore Gas and Electric Fund, i.e. to the extent that there is double coverage such coverage inures to the benefit of Baltimore Gas and Electric Fund and not to that of Complainant. It is therefore immaterial that Baltimore Gas and Electric made contributions to its pension fund on behalf of Complainant.

    However the picture would change should Complainant refuse Respondent's offer of reinstatement. In that event Complainant would have been covered by a pension fund since February 17, 1987 and contributions to another fund would not serve the purpose of compensating Complainant for a loss caused by his unlawful discharge. Neither would that purpose be served by ordering Respondent to make any contributions to the Local 557 Pension Fund in behalf of Complainant if Complainant does not accept an offer of reinstatement. Complainant was not employed by the Respondent until 1983 so that even if contributions to the fund were made until 1988 Complainant would have no vested rights thereto.

    This does not mean, however, that Respondent would be relieved of all obligations in the pension area should Complainant chose not to be reinstated. Because of Respondent's wrongful action Complainant would lose 16 1/2 months of opportunity to achieve vested rights in a pension fund and to have any wages earned during that period included in calculating his eventual pension. Thus in order to afford Complainant the compensation for damages to which he is entitled under of the STAA and the July 29, 1987 Order of the Secretary I shall order that in the event Complainant refuses reinstatement by the Respondent moneys that would have been contributed to the Local 557 Pension Fund on behalf of Complainant from October 1, 1985 to February 17, 1987 calculated in the manner set forth above shall be paid to Complainant directly rather than into the fund. I find such a payment necessary and appropriate to compensate Complainant for the fact that Respondent deprived him for 16 1/2 months from participating in any pension fund.

IV. Medical Expenses

    The parties are agreed that Respondent need not make any contribution to the Local 557 Health Fund for the period between Complainant discharge on October 1, 1985 and the date of his eventual reinstatement but that Respondent is responsible for any out-of-pocket medical expenses Complainant may have incurred personally during the period of his discharge which would have been covered by the Local 557 Health Plan and which were not covered by the health plan of either C.W. Wright Contruction Company or that of Baltimore Electric.

    Complainant testified credibly and without contradiction

that he incurred dental expenses which were not covered by the health plan in effect by his new employer, Baltimore Gas and Electric, but which would have been covered under the Local 557 plan. This is sufficient to make a prima facie case that Respondent is obligated to compensate Complainant for his $90.00 expenses. In its brief Respondent argues the point that there is no evidence to support Complainant's claim. The evidence consists of Complainant's testimony, which, while admittedly weak, was never contradicted on the record. Respondent presented no testimony or other evidence to contradict Complainant and to establish that under the Local 557 plan Complainant would also have been liable for the $90.00 payment.

    Accordingly I find that Respondent shall pay Complainant $90 for dental services Complainant received in 1987 provided that Complainant presents proof that he paid for these services.

    By letter of March 4, 1988 James Culp, Esq. of the Office of the Solicitor, U.S. Department of Labor, counsel for the Assistant Secretary informed me that except for the $90.00 dental fee Complainant had waived all rights to medical reimbursement until December 31, 1987 but was not waiving any medical expenses after that date. To this date no claims for any additional medical treatment have been made or substantiated. I therefore consider the matter closed for now. If Complainant has any post February 24, 1988 medical bills for which the Respondent is responsible, Complainant shall make demand on the Respondent for payment and if Respondent refuses Complainant shall request the office of Administrative Law Judges to reopen the record for the purpose of determining the validity of his claim.

I. Making payments to Keith Stone

    A. For Wages Lost

    B. Pay to the Welfare and Pension Trust Fund subject to to be provisions of § II A of this Order such other amounts, calculated in the manner set forth on pages 15-16 above, as may be necessary to reinstate Complainant as a beneficiary of such Fund without any los of benefits as of the time of his reinstatement or unconditional offer thereof.

       ANASTASIA T. DUNAU
       Administrative Law Judge

ATD/tjp

Washington, D.C.