ISSUE DATE: JANUARY 22, 1999
CASE NO.: 1998-STA-2

In the Matter of

MICHAEL MADONIA,
    Complainant,

    v.

DOMINICK'S FINER FOODS, INC.
and MAVO LEASING, INC.,
    Respondents.

   A Recommended Decision and Order was issued in this case on October 5, 1998, finding that the Respondents violated the Surface Transportation Assistance Act. The parties were ordered to submit evidence concerning the amount of back pay to which the Complainant is entitled by November 13, 1998. Respondent Dominick's Finer Foods, Inc. ("Dominick's'), did not submit any evidence of earnings, indicating that Mavo Leasing, Inc. ("Mavo"), maintained exclusive control of the amount of compensation and other benefits received by Union members, including the Complainant and Dominick's would abide by the information of earnings provided by Mavo.

    Dominick's did request that the Complainant not be awarded back pay, arguing that he caused his own loss of income by not demonstrating his compliance with the settlement agreement. Dominick's contends that Mavo would have reinstated the Complainant had it been able to verify that the Complainant complied with his doctors' orders. In the alternative, Dominick's argues that the Complainant be awarded limited back pay from the period of August 25, 1997 to November 13, 1997. Dominick's argues that its liability for back pay should cease on November 13, 1997 because the Complainant refused the opportunity to obtain a second psychiatric evaluation which foreclosed Mavo from determining whether he was fit to drive a commercial vehicle and made an offer of reinstatement impossible.

    It was determined in the Recommended Decision and Order that Dominick's and Mavo violated the Surface Transportation Assistance Act. An award of back pay

under the Act is not a matter of discretion but is mandated once it is determined that an employer has violated the Act. Moravec v. HC & M Transportation, Inc., 90-STA-44 (Sec'y Jan. 6, 1992). I also found that a dual motive existed for firing the Complainant but the Respondents did not establish that they would have fired him regardless of the safety complaints. Dominick's is essentially challenging findings of fact and conclusions of law from the Recommended Decision and Order. Therefore, the basis for Dominick's argument that there be no back pay or limited back pay was effectively considered and rejected.

    Mavo adopts and joins in Dominick's argument concerning no or limited back pay. However, Mavo submitted a copy of the gross earnings for drivers leased to Dominick's from January 1, 1998 through October 10, 1998 when Mavo apparently ceased leasing the drivers. Mavo also submitted a list of hire dates for the drivers, noting that the Complainant was hired on 6/25/84, a day after Jim Anzalone and six months before Kenneth Colboth. Mavo did not provide any information as to the earnings of its drivers in 1997.     The Complainant submitted a detailed calculation of back pay using gross wages earned by the Complainant during calendar year 1993 as a base and adding 4.5% per annum to account for the wage rate increases and the effect of wage rate increases on overtime pay. Complainant used 1993 as a base because it was the last year in which Complainant worked a full year without being off work for a period of time due to injury or due to discharge.     Complainant is entitled to back pay from the date of wrongful dismissal to the date of reinstatement,¹ less any interim earnings,² Sprague v. American Nuclear Resources, Inc., Case No. 92-ERA-37, Sec. Dec. and Ord., Dec. 1, 1994, slip op. at 12, as well as interest on the back pay amount, at the rate specified for underpayment of Federal income tax, 26 U.S.C. §6621. Blackburn v. Metric Constructors, Inc., Case No. 86-ERA-4, Dec. and Order on Damages, Oct. 30, 1991, slip op. at 18-19, aff'd in relevant part and rev'd on other grounds, Blackburn v. Martin, 982 F.2d 125 (4th Cir. 1992).

    In computing the amount of back pay, it is appropriate to key to the earnings of a "representative employee" in order to get a reasonable approximation of what Claimant would have earned but for the wrongful dismissal. Palmer v. Western Truck Manpower, Inc., 85-STA-16 (Sec'y June 26, 1990), slip op. at 7, aff'd 12 F.3d 151 (9th Cir. 1993); Reed v. National Minerals Corp., 91-STA-34 (Sec'y July 24, 1992). After comparing the Complainant's calculations to the limited evidence of earnings submitted by Mavo, I find that the total of $73,202 for wages from 08/25/97 through 10/05/98 reasonable and is approved, with interest at the rate specified for underpayment of Federal income tax, 26 U.S.C. §6621.

    The Complainant is also asking for ,258 per week for the rest of 1998 and ,308 per week for weeks lost in 1999. In this case, Complainant is asking for $492 a month for health and welfare benefits for 14 months plus additional months at the contract rate

¹ Complainant was ordered to be reinstated but an appeal is pending and the Complainant has not been reinstated. Where an employer is found to have violated STAA and the Complainant is found to be entitled to an offer of reinstatement to his or her former position and to back pay, the employer's liability for back pay continues until such time as the employer reinstates the complainant or makes him a bona fide offer of reinstatement. Polewsky v. B & L Lines Inc., 90-STA-21 (Sec'y May 29, 1991).

² There is no evidence of interim earnings.