Moyer v. Yellow Freight System, Inc., 89-STA-7 (Sec'y Sept. 27, 1990)

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Moyer v. Yellow Freight System, Inc., 89-STA-7 (Sec'y Sept. 27, 1990)

U.S. DEPARTMENT OF LABOR

SECRETARY OF LABOR
WASHINGTON, D.C.

DATE: September 27, 1990
CASE NO. 89-STA-7

IN THE MATTER OF

THOMAS E. MOYER,
COMPLAINANT,

YELLOW FREIGHT SYSTEM, INC.,
RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

FINAL DECISION AND ORDER

Before me for review is the Recommended Supplemental Decision and Order on Damages (R.D. and O.) issued June 18, 1990, by Administrative Law Judge (ALJ) E. Earl Thomas in this case arising under the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1982). The ALJ's R.D. and O. was issued in response to my November 21, 1989, Decision and Order of Remand which requested a determination as to relief appropriately due Complainant. The ALJ has recommended an award in compensation for back pay, interest, medical expenses, litigation costs, and costs incurred in seeking alternate employment. A review of the case record establishes that, with the exceptions discussed infra, the ALJ's factual findings are supported by substantial evidence on the record considered as a whole, and thus they are conclusive. 29 C.F.R. S 1978.109(c)(3)(1989). Moreover, the ALJ has employed an appropriate legal analysis and his conclusions are reasonable. Accordingly, I accept And adopt the ALJ's recommendation subject to the following discussion and clarification.

1. Complainant's Return to Ohio

Respondent contends that it is entitled to an offset against its back pay liability because Complainant voluntarily quit employment in Florida to return to Ohio without good cause. Resp. Br. at 22-25. In this regard, the ALJ found:

In May 1989, Moyer secured employment as a "lease driver" with Universal Select, Inc. A lease driver is furnished to various employers which temporarily need truck drivers. He worked with this company sporadically over an

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approximate two week period . . . . Moyer reasonably believed that he would be better off returning to Ohio to work. After relocating in Cleveland, Ohio, Moyer secured employment as a casual driver with Transportation Unlimited, Inc.

R. D. and O. at 3. However, the ALJ disbelieved the reason tendered by Complainant for his return, i.e., that "he believed that he should be in Ohio, ready to report to work" should he be ordered reinstated. Id. Upon consideration of the record in its entirety, I am persuaded that the Complainant's explanation is credible,¹ and I reject the ALJ's contrary finding.

The administrative hearing on the merits of Complainant's complaint was held on May 18, 1989.² The STAA requires that hearings of employee protection complaints be conducted expeditiously, 49 U.S.C. app. § 2305(c) (2) (A), and ALJs are required to issue a decision within 30 days of the close of the record. 29 C.F.R. § 1978.109(a). The ALJ in this case issued his R.D. and O. less than two and one half months after the evidentiary hearing, on August 1, 1989. Had the ALJ held for the Complainant and ordered his reinstatement, that order would have taken immediate effect. 29 C.F.R. §1978.109(b). Thus, Complainant had considerable statutory and regulatory reason to believe that a decision in his case was imminent.

Moreover, the occupation of operating a commercial motor vehicle, to which Complainant would have been reinstated, required access to reliable transportation for purposes of reporting to the truck yard or terminal and access to a home telephone for purposes of receiving dispatch assignments. Complainant's experience with Yellow Freight was that the company required employees to report for work within a set time frame after hire. Complainant testified:

I wanted to be back and be ready to go to work and be home at the time if the decision was favorable to me. To be able to go to work, back to my job. . . . Yellow Freight . . . gave you a letter indicating [that] they gave you so much time to report to work. And not having a telephone installed which was - essential with Yellow Freight, to protect your dispatch calls, and being established in a . . . residency, I've already went through seven cars so I wanted to get a car that was reliable.

T. 111-112. Clearly, Complainant was concerned that he could not timely accept reinstatement without first having reestablished himself in Ohio. T. 111-113. I also note that as a driver for Yellow Freight for ten years preceding his discharge, Complainant had been based in Ohio and was familiar with the routes in the locality. T. 18-19, 128. That he would desire reinstatement there is understandable.

Finally, some question exists as to whether much of Complainant's interim employment, including the Florida job with Universal Select, was entirely "suitable," and thus whether he was required to maintain it. See NLRB v. Laredo Packing Co., 730 F.2d 405, 408 (5th Cir. 1984) (per curiam). Complainant's employment with Yellow Freight was continuous, providing significant health and welfare and pension benefits. In contrast, certain interim employment for which Complainant qualified was sporadic and carried no benefits. Especially in light of his physical condition, Complainant was justified in continuing to seek an employment package similar to that offered by Yellow Freight. Compare Brady v. Thurston Motor Lines Inc., 753 F.2d 1269, 1274-1276

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(4th Cir. 1985) ("reasonable diligence" standard presumes a degree of flexibility; when search for comparable employment proves futile, claimant justified in accepting inferior job, enrolling in college, and ceasing search for higher paid employment). In any event, "a voluntary quit does not toll the [back pay] period when it is prompted by unreasonable working conditions or the earnest search for better paying employment." Id. at 1278 (and cases cited therein).

I agree with the Regional Solicitor in her brief before the ALJ, SOL Br. at 11, that in these circumstances Complainant's decision to return to Ohio was "prudent" and "reasonable." By so doing, he in no manner failed to mitigate his damages.³

2. The Question of Disability

Respondent contends that its back pay liability should be tolled during certain periods of Complainant's disability and alleged disability. The particular periods are (1) between at least January 29 and February 25, 1990, following major surgery to correct a groin condition; and (2) between September 13 and December 13, 1989, during which Complainant apparently had applied for "temporary total disability benefits." Reap. Br. at 29-34.

I agree with the ALJ's determination that the three-week period of disability in early 1990 should not be excluded from the back payment computation. would not have been necessary at that time had Complainant not been unlawfully discharged. T. 172. Complainant had been successful in controlling his groin condition during his ten years of employment with Yellow Freight by using antibiotics which were available under his employee health plan. T. 133-134, 169-170, 172. After the loss of his job with Yellow Freight and the contemporaneous termination of medical benefits,⁴ however, Complainant's marginal finances precluded access to the medication. The condition worsened progressively, finally necessitating an operation. T. 59, Exh. C-2.

In American Manufacturing Co., 167 NLRB 520, S22 (1967), the National Labor Relations Board determined that back pay liability was not tolled during periods of interim disability closely related to an employee's replacement job or otherwise arising from the unlawful discharge. The Board reasoned:

The causes of such ailments are . . . attributable to events which would not have taken place, or to environmental factors which would not have been present, had the employee not been unlawfully removed from his employment in the respondent's plant. Although other . . . disabilities might have occurred absent discharge, this is not a normal expectancy, and hence a discriminates would not reasonably have been expected to suffer the . . . ailment and the consequent pay loss if he had retained his former employment.

Id. I find this precedent applicable here.

The period described above in late 1989 similarly should not diminish the back pay award. Respondent's argument for tolling liability here rests on Complainant's asserted "admission" of total disability by means of Exhibit R-4, a benefits claim form signed by Complainant. Resp. Br. at 29-30. Respondent's theory is not compelling. Complainant concedes that he requested compensation, his explanation being that he "ha[d] a right to be examined. n T. 89. His request, however, was denied. T. 68, 173.

Submitted with little testimonial explication, Exhibit R-4 is Respondent's exclusive evidence of any total disability during this period. The exhibit is an

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application form by which Complainant requested reactivation of a previous compensation claim in order to recover for medical services, authorize further such services, and award "further compensation payments as requested below." Although none of the four options listed "below" is checked, the dates September 13, 1989, and December 13, 1989, are typed under the option requesting temporary total disability benefits. Other options which remain blank include requests for temporary partial disability benefits and a request for compensation due to scheduled loss if a member as the result of amputation. The application also documents that the attending physician examined Complainant on September 13 for a neck or back injury originally sustained in 1986 and recommended weekly therapy over a 12-week period.

Complainant did not testify regarding this condition except to comment that "[his] back was bothering [him]." T.68. With the exception of the Complainant's and physician's signatures, the information on the form is typewritten. The record does not disclose who prepared the form, nor does it explain the particular requests. I note that between September and December, 1989, Complainant worked as a driver for St. Johnsbury Trucking Company, Cleveland Express, National Transportation Company, and Premium Enterprises. See Canova v. NLRB, 708 F.2d 1498, 1505-1506 (9th Cir. 1983) (physician's reports not dispositive of disability issue; facts that employee returned to work following injury and performed interim employment more significant). The record establishes that any physical difficulty experienced by Complainant in performing this interim employment derived primarily from vision problems and a worsening groin condition which, in turn, were attributable to his loss of health benefits. T. 81-84, 121, 168-169, 170-171. Based on the inconclusive and contrary record evidence, I am unable to find that Complainant suffered total disability during this period.

3. The Duplicative Medical Payments

Respondent complains that the AIM erred by arguably ordering it both to reimburse Complainant for his medical expenses and to pay health and welfare fund premiums for the period in which he incurred his medical expenses. Resp. Br. at 35. I agree that such payments to the health and welfare fund would be inappropriate. Although health and welfare benefits comprise back pay, the object in awarding them is to make a complainant whole. The record establishes that Respondent makes weekly contributions to a health and welfare fund. However, contributions are not required, and medical coverage does not commence, until an employee has remained on the payroll for 30 days. See Exh. J-4, Article 54. Accordingly, in order to restore Complainant fully, Respondent must reimburse Complainant for the medical expenses he incurred and must pay sufficient monies into the health and welfare fund to permit Complainant's immediate coverage upon reinstatement.

4. An Appropriate Rate of Interest

Prejudgment interest in STAA cases historically has been calculated in accordance with 29 U.S.C. § 1961 (1988). See e.g., Hufstetler v. Roadway Express. Inc., Case No. 85-STA-8, Final Decision and Order issued August 21, 1986, slip op. at 58, aff'd sub nom. Roadway Exp. Inc. v. Brock, 830 F.2d 179 (llth Cir. 1987). In the instant case, the ALJ has employed the statutory provision for interest on underpaid taxes, 26 U.S.C. § 6621 (l988). That rate is used by the National Labor Relations Board, New Horizons for the Retarded. Inc. et al., 283 NLRB No. 181, 125 LRRM 1177 (May 28, 1987), and has been approved for use by the Federal Mine Safety and

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Health Review Commission, in assessing prejudgment interest on compensation awards, as "a congressionally determined figure for a seemingly comparable situation." Clinchfield Coal v. Federal Mine Safety & H. Com'n, 895 F.2d 773, 780 (D.C. Cir. 1990). The rationale for the FHSHRC's adoption appears at UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493, l504-1506, 1988 O.S.H. Dec. (CCH) par. 28,348 (1988). In these circumstances, I cannot view the ALJ's recommendation as arbitary, capricious, an abuse of discretion, or otherwise not in accordance with law, and I therefore accept it. 5 U.S.C. § 706(2)(A)(1988). In so holding, I note that neither party has addressed this aspect of the ALJ's recommendation.

ORDER

The ALJ's order is clarified to require Respondent to pay sufficient monies into the health and welfare fund to permit Complainant's immediate coverage upon reinstatement. The final clause of the final sentence of the order, R.D. and O. at 11, is amended to specify continuing accrual of back pay "until such time as Yellow Freight reinstates Moyer to his former position or makes him a bona fide offer of reinstatement." See R.D. and O. at 8. In addition to the relief ordered at pages 10-11 of the R.D. and O., interest shall be calculated as approved herein on the back pay due until the date of payment. Pursuant to 49 U.S.C. app. § 2305(c)(2)(B), Respondent also shall assume liability for any additional attorney's fees "reasonably incurred" in conjunction with this continuing litigation. See R.D. and O. at 5. As amended, the appended Recommended Supplemental Decision and Order on Damages is adopted in its entirety.

This Final Decision and Order, together with the Order Denying Motion to Vacate and Reopen issued herewith, and the Secretary's Decision and Order of Remand issued on November 21, 1989, represent the final administrative disposition in this case.

SO ORDERED.

Elizabeth Dole
Secretary of Labor

Washington, D.C.

[ENDNOTES]

¹All factual findings, including credibility findings, must be supported by substantial evidence in the record as a whole. Where a factfinder's "theory of credibility is based on inadequate reasons or no reasons at all, his findings cannot be upheld." NLRB v. Cutting. Inc., 701 F.2d 659, 667 (7th Cir. 1983). All relevant, probative, and available record evidence must be weighed explicitly by the factfinder who must state what portions of the evidence he has accepted or rejected. Dobrowolsky v. Califano, 606 F.2d 403, 409-410 (3rd Cir. 1979). A full explanation of why specific evidence was rejected is imperative, since a factfinder "cannot reject evidence for no reason or for the wrong reason." Cotter v. Harris, 642 F.2d 700, 706-707 (3rd Cir. 1981). See Dorf v. Bowen, 794 F.2d 896, 901-902 (3rd Cir. 1986) (judge's wholesale discounting of testimony, especially in light of other record evidence which supported it, required reversal); Kent v. Schweiker, 710 F.2d 110, 116 (3rd Cir. 1983) (conclusory wholesale rejection of testimony did not meet substantial evidence test).

²Complainant returned to Ohio in May, 1989, following the hearing. As early as June, 1989, he had secured employment as a driver with a trucking company in Cleveland.

³Respondent relies on essentially the same principle in arguing that Complainant's discharge from employment with Continental Baking Company precludes an award of back pay for any subsequent period. According to Respondent, discharge denotes "willful loss of earnings" which tolls liability because it defeats any finding of reasonable diligence. Resp. Br. at 26-29. This argument cannot prevail. Complainant's "stated inability 'to perform the work to the employer's satisfaction'" derived predominantly from his physical condition, a direct result of his unlawful discharge and loss of health benefits. R.D. and O. at 3. See infra at 67. Contrary to Respondent's suggestion, the record here does not show that Complainant failed in his "obligation to make reasonable and good faith efforts to maintain [the] job once accepted." Brady v.Thurston Motor Lines. Inc., 753 F.2d at 1277.

⁴Some of Complainant's replacement employers offered no medical benefits, while others imposed a 90-day waiting period before the benefits became available. T. 170.