U.S. Department of Labor
Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB CASE NO. 97-045
ALJ CASE NO. 94-STA-0016
DATE: MAY 14 1997
In the Matter of:
KENNETH C. CLIFTON,
COMPLAINANT,
v.
UNITED PARCEL SERVICE,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL DECISION AND ORDER
This case is before us pursuant to the employee protection
provision of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C.A.
§ 31105 (West 1996). On May 5, 1995, the Secretary of Labor determined that
Respondent United Parcel Service (UPS) had discharged Complainant Kenneth C. Clifton
(Clifton) in violation of the STAA. The Secretary directed UPS to reinstate Clifton and
remanded the case to the Administrative Law Judge (ALJ) to determine damages. On July
18, 1996, the ALJ held a hearing in Nashville, Tennessee on the issue of damages. On
January 15, 1997, the ALJ issued a Recommended Decision and Order (R. D. and O.)
awarding Clifton back pay, front pay, and reimbursement for attorney's fees and lost medical
benefits. After a careful review of the record the R. D. and O. is affirmed in part and denied
in part.
DISCUSSION
Reinstatement
The ALJ held that, because Clifton was unlawfully dismissed
and UPS has continued to ignore the Secretary's May 5, 1995 Order, Clifton is entitled to
receive six months of front pay in lieu of reinstatement. R. D. and O. at 6. We disagree.
Reestablishment of the employment relationship is a usual component of the remedy in
discrimination cases. McCuistion v. Tennessee Valley Authority, Case No. 89-ERA-6,
Sec. Dec. and Ord., Nov.
[Page 2]
13, 1991, slip op. at 23. The record does not indicate that a sufficient level of hostility exists
between UPS and Clifton to warrant a reversal of our reinstatement order. In fact, UPS has
stated that "there is absolutely no evidence in the record that Clifton would not be a
suitable employee for reinstatement and since it has been ordered, there is no reason to
assume that UPS would not comply with a final order once it is issued by the Secretary of
Labor, if enforced by the Court of Appeals." Brief of United Parcel Service, February
14, 1997, page 11. We therefore do not accept the ALJ's determination that UPS is not
required to reinstate Clifton.1
1As of the date of this
Order, UPS has not complied with the Secretary's May 5th reinstatement order, nor has it
sought a stay of the reinstatement order. We remind UPS that although it has appealed the
Secretary's May 5, 1995 order to the United States Court of Appeals for the Sixth Circuit,
such an appeal does not automatically stay the Secretary's order of reinstatement. See,
e.g., Harrison v. Stone & Webster Engineering Group, Case No. 93-ERA-44, Sec. Dec.
and Ord., Dec. 13, 1995.
3We note that should
UPS continue to ignore our order to reinstate Clifton, his back pay award is subject to change
to the extent that Fryer's pay is modified.