Nelson v. Walker Freight Lines, Inc., 87-STA-24 (Sec'y Jan. 15, 1988)

May 9, 2009

DOL Home > OALJ Home > Whistleblower Collection

USDOL/OALJ Reporter
Nelson v. Walker Freight Lines, Inc., 87-STA-24 (Sec'y Jan. 15, 1988)

U.S. DEPARTMENT OF LABOR
SECRETARY OF LABOR
WASHINGTON, D.C.

DATE: January 15, 1988
CASE NO. 87-STA-24

IN THE MATTER OF

ROBERT H. NELSON,
COMPLAINANT,

WALKER FREIGHT LINES, INC.,
d/b/a PACKAGE EXPRESS,
RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

DECISION AND ORDER OF REMAND

This proceeding arises under the employee protection provision of the Surface Transportation Assistance Act (STAA), 49 U.S.C. app. § 2305 (1982), which prohibits covered employers from discharging or otherwise discriminating against employees who have engaged in certain protected activities.

Complainant Nelson, a truck driver employed by Respondent Walker to drive two fifteen-hour round trips per week between Seattle and Spokane, Washington, alleges that he was discharged for refusing to drive a vehicle which he considered unsafe to drive because it had an inoperative headlight. Respondent contends that Complainant refused to replace the headlamp as ordered to by Respondent, and that, at any rate, the truck was safe to drive because the other lights, including fog lights, were working. After a hearing on the merits of the complaint, Administrative Law Judge (ALJ) Edward C. Burch found that Complainant's discharge was in part, due to his refusal to drive the truck, that Complainant had a reasonable basis for apprehension of serious injury because of the defective light, that he sought correction of the unsafe condition and that he was unable to obtain such correction. Accordingly, the ALJ concluded that Complainant was discharged in violation of section 2305(b) of the STAA, and ordered Respondent to pay Complainant the sum of $4,932.72 in back wages.

Based on a thorough review of the record, I conclude that the ALJ's findings leading to his conclusion that Respondent's discharge of Complainant was violative of section 2305(b) are supported by substantial evidence and are in accordance with law.¹ I do not, however, agree with the ALJ's

[Page 2]

finding that Complainant is entitled to $4,932.72 as damages because I find that this sum was not arrived at in accordance with law.

It is clear from the record that the amount of $4,932.72, which the ALJ ordered be paid to Complainant, is solely for lost wages or backpay. The ALJ arrived at this amount by deducting, for the period between the date of Complainant's discharge and the date he obtained full-time employment with a new employer (Pacific Coast Mail Carriers), the total amount Complainant earned at other truck driving jobs from the total amount he would have earned with Respondent had he not been discharged. D. and O. at 4. The parties did not dispute before the ALJ either of these earning figures.² They did, however, disagree as to whether Complainant's total earnings at other jobs following his discharge should be deducted from what he would have earned with Respondent. Complainant Contended that, since he drove part-time -- i.e., only on Wednesdays and Fridays for Respondent -- his post-discharge earnings for these weekdays only should be deducted, and that, therefore, he was entitled to $7,380.72 as net lost wages. Post-Hearing Brief, Department of Labor at 8-9. Respondent, on the other hand, contended that the total amount of earnings At other jobs was deductible since Complainant worked nearly full-time for Respondent, in that he worked 30 hours a week and his two runs covered five days of the week from Wednesday afternoon through Sunday morning, and since Complainant's schedule was subject to change which could preclude other employment. Therefore, according to Respondent, Complainant was entitled only to $4,932.72 as net backpay.

Although section 2305(c)(2)(B) of the STAA requires that, where it has been determined that a violation has occurred, Complainant is to be awarded backpay, neither section 2305 nor the implementing regulations at 29 C.F.R. Part 1978 (1987) provide any guidance for the computation of backpay amounts. Nor are there any STAA cases that elaborate on what interim earnings are to be offset from the amount that would have been earned but for the discharge. Instructive, however, are cases arising in analogous situations under the discrimination provisions of other Federal statutes.

Under both the National Labor Relations Act and Title VII of the Civil Rights Act, it has been held that part-time or "moonlighting" earnings of the discharged employee are not offset from the amount the employee would have earned had he not been discharged, where the employee held or could have held the second job while working for employer. Thus, in Link Belt Co., 12 NLRB 854 (1939), the National Labor Relations Board did not permit the offset of sums that a crane worker earned as a musician following his discharge because the worker "enjoyed this independent source of income to the same extent while employed by the respondent." 12 NLRB at 872. Accord Belle Steele Co., 135 NLRB 1378, 1380 (1962); Anwelt Shoe Mfg, Co., 1 NLRB 939, 949 (1936). The same rule has been applied in Title VII cases.

Courts addressing the moonlighting issue have indicated that if the plaintiff could have held both the supplemental job and the job he did not receive because of discrimination, the earnings from the supplemental job will not be used to reduce the back pay award.

Lilly v. City of Beckley, W. Va., 797 F.2d 191, 192 (4th Cir. 1986). In Lilly, the Fourth Circuit affirmed the District Court's refusal to reduce Lilly's back pay

[Page 3]

award by the sum that Lilly earned from his second job because it found substantial evidence to support the District Court's finding "'that [the moonlighting] earnings could have been achieved had he been hired as a police officer.'" 797 F.2d at 192.

On the other hand, where the employee would not have been able to work at the same time at both the second job and the job he lost because of discrimination, the earnings from the second job are offset. Thus, in Whatley v. Skaggs Companies. Inc., 707 F.2d.1129 (10th Cir. 1983), the post-discharge moonlighting earnings of a lobby manager, who had been dismissed for discriminatory reasons, were offset because "the responsibilities of his management position and the incentives of promotion and larger bonuses create the likelihood that plaintiff would have continued to work long hours had he remained a lobby manager, and he would consequently have been unable to moonlight." 707 F.2d at 1139. Similarly, in Bing v. Roadway Express, Inc., 485 F.2d 441 (5th Cir. 1973), the moonlight earnings of a "city truck driver", denied a transfer to a position as a "road driver," were offset because "as a road driver Bing would have had to work sixty to one hundred hours per week and thus would not have had time to work extra hours at odd jobs." 485 F.2d at 453.

The purpose of a backpay award is to make "persons whole for injuries suffered for past discrimination." Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975). It is consistent with this purpose to permit a reduction of a backpay award only by such earnings as could not have been achieved had the employee not been discriminated against. Accordingly, to completely redress the economic injury of complainants who have been discriminated against in violation of the STAA, I apply to STAA backpay awards the same principle enunciated in the NLRB and in the Title VII cases.

The evidence currently in the record is not sufficient for application of this principle here. The parties agree that Complainant was to work fifteen hour shifts on each Wednesday and Friday. What is not clear is the extent to which Complainant could have driven for other employers on the other days of the week bad he not been discharged by Respondent. From Complainant's testimony it appears that he agreed to work "30 hours a week, two days a week" with Respondent because he could work elsewhere other hours. T. at 61. It also appears, however, that he might not have been available for other jobs on each of the other days of the week. Complainant testified that, during the Christmas rush, he would probably have to also drive for Respondents on Mondays, T. at 59, and, indeed, he was scheduled to take another load of mail to Spokane on Monday, December 22nd. T. at 29-30. Complainant also testified that he drove a "regular run" on Saturday, December 20th, returning to Seattle on Sunday, December 21st. T. at 1708. Furthermore, Complainant testified that his agreement to work part-time for Pacific Coast Mail Carriers while working for Respondent was to work "whenever he needed me. It might be three hours or it might be six hours, no more than eight hours." T. at 39-40.

Accordingly, on remand the ALJ is to determine which part of Complainants' post-discharge earnings ³ Complainant could have earned had he continued to be employed by Respondent. These earnings should not be deducted from the total amount Complainant would have earned had he not been discharged by Respondent in order to determine the amount due Complainant as lost wages or back pay.⁴ To this end, the ALJ

[Page 4]

should reopen the record and permit the parties to present additional evidence, including the testimony of witnesses.

In establishing that gross backpay should be reduced by earnings, the burden of proof is upon the Respondent. Isaac and Vinson Security Services, 208 NLRB 47, 51 (1973). Ambiguities "should be resolved against the discriminating employer". Rasimas v. Michigan Department of Mental Health, 714 F.2d 614, 628 (6th Cir. 1983), cert. denied 466 U.S. 950 (1984) (ambiguity in what plaintiff would have received but for the discrimination).

Accordingly, I adopt ALJ's Burch's Decision and Order of September 18, 1987, with the exception of the statement that "[h]is damages are in the sum of $4,932.73" in the last paragraph of his Findings of Fact and Conclusions of Law and with the exception of the ALJ's Order awarding damages. D. and O. at 4. Regarding damages, I remand to the ALJ, for determination in accordance with this decision, the issue of the amount of damages to which Complainant is entitled and direct the AU to receive additional evidence which is relevant to the determination of this issue. The ALJ shall submit his recommended decision and order on the damages issue within ninety days.

Therefore, this case is REMANDED.

SO ORDERED.

Ann McLaughlin
Secretary of Labor

Washington, D.C.

[ENDNOTES]

¹Although the ALJ did not analyze the record evidence in terms of the applicable burdens of proof, see McGavock v. Elbar, Inc., Case No. 86-STA-5, Final Decision and Order, issued July 9, 1986, slip op. at 10-12, the evidence supports a finding that Respondent failed to meet its burden of establishing that it would have discharged Complainant even if he had not refused to drive the unsafe vehicle.

²Neither Complainant nor Respondent have filed briefs before me.

³Normally the backpay period runs from the date of the discriminatory discharge until the date of reinstatement. See Hufstetler v. Roadway Express, Inc., Case No. 85-STA-8, Final Decision and Order, issued August 21, 1986, slip op. at 59, aff'd sub. nom. Roadway Express, Inc. v. Brock, 830 F.2d 179 (11th Cir. 1987). However, the ALJ noted that Complainant did not seek reinstatement (D. and O. at 1). At the hearing, the Associate Regional Solicitor, appearing on behalf of the Complainant, stated that Complainant was solely seeking monetary damages and was not asking for reinstatement. T. at 7. In view of this, the backpay period here runs from the date of discharge to the date Complainant accepted full-time employment with Pacific Coast Mail Carriers.

⁴ ⁴Section 2305(c)(2)(B) of the STAA expressly provides for back pay and compensatory damages. Interest on the back pay award in accordance with 28 U.S.C. § 1961 (1982) should also be ordered.