U.S. Department of Labor
Office of Administrative Law Judges
1111 20th Street, N.W.
Washington, DC 20036
Date: NOV 30 1988
Case No.: 86-STA-16
In the Matter of:
KEITH STONE
Complainant
v.
NU-CAR CARRIERS, INC.
Respondent
BEFORE: ANASTASIA T. DUNAU
DECISION AND ORDER ON REMAND
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.
[Page 2]
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 of the
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.
After due notice I held hearings on the damage issue in
Washington, D.C. on February 23 and 24, 1988. All parties appeared
and were permitted to adduce testimony and documentary evidence.
After the hearing the Assistant Secretary and Respondent submitted
briefs.1
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.
The only possible eventuality that might lead me to reconsider
the fitness for reinstatement issue, would be for Respondent to
have produced evidence at the February 1988 hearing which would
indicate that Complainant became disqualified from driving a car
carrier sometime after the July 2, 1986 hearing. No such evidence
was produced. Respondent relies entirely on materials which were
in the record for the initial hearing.4
Ninety ($90.00) dollars for dental expenses incurred in 1987
provided Complainant submits proof that he has paid for these
services.
II. Making Contributions to the Welfare and Pension TrustFund of Local 557 in the Following Manner
A. Pay to the Welfare and Pension Trust Fund of Local No.
557 the sum of $9,551.00 on behalf of Complainant Keith Stone for
the period of October 1, 1985 through December 31, 1987 provided,
however, that should Complainant refuse the reinstatement ordered
herein, no contributions to the Pension and Welfare Fund of Local
557 shall be made on Complainant's behalf after February 16, 1987
and all contributions to such Fund which would have been made on
Complainant's behalf from October 1, 1985 through February 16,
1987 shall be paid to Complainant directly.
[Page 19]
B. Pay to the Welfare and Pension Trust Fund subject 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.
[ENDNOTES]
1The Assistant Secretary submitted
GX 38A through E, 39A
through F, 18W and 18X. These exhibits are hereby admitted into
the record.
2If he has not signed up the
previous day he must report by
9:30 A.M.
3The Assistant Secretary limited
the wage computation to
that date.
4On the other hand Complainant
established that he had no
problems performing his current physically demanding job of an
electric lineman.
5I have not used Complainant's
own earnings because his
working record reflects an unusual large number of absences
due to an industrial accident and disciplinary suspensions.
See infra.
6Respondent makes much of the
fact that the Maryland Department
of Employment & Training has requested that Complainant return
all the unemployment compensation he received between the time
of his discharge and the time of his employment by C.W. Wright
Construction Company. I am not persuaded that this action by
the Maryland Department and Training establishes that Complainant's
lob search was not as represented by him at the hearing before
me because (1) the Maryland action had been taken after an
administrative inquiry without hearing and the matter was pending
appeal at the time of the hearing before me (2) I credit Complainant's
testimony that he filled out the forms about his work availability,
his industrial injury and job search as instructed by Maryland
Department of Training officials and (3) I also credit Complainant's
description of his early March 1986 job search and (4) the requirements
for the intensity of a job search and what job an applicant
take must do to support an unemployment compensation award in
Maryland may differ from what a Complainant must do to mitigate
a respondent's damages in an STAA suit.
7The Assistant Secretary only
seeks an order for recovery of
wages lost up to December 31, 1987.
8Complainant, according to his
uncontradicted testimony, did
not seek back pay because he had a private suit pending against
Respondent.
9Respondent also objects to the
selection of the drivers used
by the Assistant Secretary to obtain his average. As these
drivers are the same as the Respondent uses to calculate its
averages I have disregarded these objections.
10I have calculated the wages
due Complainant during the periods
he was employed by C.W. Wright Construction Company and by Baltimore
Gas and Electric Company by taking the total Complainant would
have been paid by Respondent during the period designated, deducting
from such total the amount Complainant was paid by his other
employer during the same period and dividing the result of that
calculation by the number of weeks covered by the designated
period.
11For the purposes of this order
wages become due on each Friday
of each week covered by this Order at the weekly wage rate appropriate
for that week under this order.