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USDOL/OALJ Reporter
Ass't Sec'y & Mulanax v. Red
Label Express, 95-STA-14 (Sec'y Nov. 1, 1995)
DATE: November 1, 1995
CASE NOS. 95-STA-14
95-STA-15
IN THE MATTER OF
ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY & HEALTH,
PROSECUTING PARTY,
and
GUY V. MULANAX AND DANIEL ANDERSEN,
COMPLAINANTS,
v.
RED LABEL EXPRESS,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
This case arises under Section 405 (the employee protection
provision) of the Surface Transportation Assistance Act of 1982
(STAA), 49 U.S.C.A. § 31105 (1994). Before me for review is
the Recommended Decision and Order (R. D. and O.) issued on July
7, 1995, by the Administrative Law Judge (ALJ). The ALJ
concluded that Respondent, Red Label Express (Red Label), had
violated the STAA by terminating Complainants Guy V. Mulanax
(Mulanax) and Daniel Andersen (Andersen) for engaging in
protected activity and he recommended that damages be awarded to
both Mulanax and Andersen. Following a thorough review of the
record and the arguments of the parties,[1] I agree with the
ultimate conclusions
[PAGE 2]
of the ALJ and modify only the reasoning upon which the ALJ's
analysis regarding back pay for Mulanax is based.
DISCUSSION
Without exception, the findings of fact rendered by the ALJ
are based on an assiduous evaluation of the evidence of record,
including a complete review of the hearing testimony and a full
explanation of the resolution of conflicts presented in that
testimony. R. D. and O at 2-28; see N.L.R.B. v. Cutting,
Inc., 701 F.2d 659, 667 (7th Cir. 1983); Cotter v.
Harris, 642 F.2d 700, 706-07 (3d Cir. 1981); Dobrowlosky
v. Califano, 606 F.2d 403, 409-10 (3d Cir. 1979). The ALJ's
findings of fact are supported by substantial evidence on the
record considered as a whole; therefore those findings are
conclusive. See 29 C.F.R. § 1978.109(c)(3)(1995).
I further conclude that the ALJ's application of pertinent
law to the findings of fact is completely sound and fully in
accord with relevant precedent. See R. D. and O. at 18-
28. I therefore adopt the determination of the ALJ that Red
Label violated the STAA by its termination of Mulanax and
Andersen, as presented in the appended R. D. and O., at 18-21,
21-26. With the following modification, I also adopt the ALJ's
analysis of the issues pertinent to the awards of damages in
these consolidated cases, R. D. and O. at 21, 26-28.
A. Back pay for Mulanax
1. Work availability
Pertinent to the issue of Red Label's back pay liability,
the ALJ determined that Mulanax was available for work throughout
the period from the date of Mulanax's termination by Red Label
until an offer of reinstatement was made. R. D. and O. at 26-28.
In so doing, the ALJ rejected Red Label's argument that it was
not liable for back pay during the period that Mulanax would have
been under the age of 21,[2] which is the minimum age required
for drivers under Section 391.11(b), 49 C.F.R. § 391.11(b),
of the Federal Motor Carrier Safety Regulations promulgated by
the Department of Transportation (DOT). R. D. and O. at 27-28.
The ALJ addressed the decision of the United States Supreme Court
in McKennon v. Nashville Banner Publishing Co., 115 S.Ct.
879 (1995), which arose under the Age Discrimination in
Employment Act of 1967, 29 U.S.C. § 621 et seq. (1988
ed. and Supp. V), and in which the Court held that evidence that
would justify termination of an employee which is acquired after
an employer has discriminatorily terminated an employee will not
bar recovery on the discrimination claim but must be considered
in determining the appropriate remedy. The ALJ found that this case was factually distinguishable
from McKennon because the record does not indicate
that Red Label did not have knowledge of Mulanax's actual age
prior to
[PAGE 3]
terminating Mulanax or that Mulanax misled Red Label regarding
his age. R. D. and O. at 28. Assuming, arguendo, that
Red Label did not have such knowledge previously, the ALJ also
noted that the record does not establish when Red Label
discovered Mulanax's actual age. Id. The ALJ therefore
concluded that the equitable factors addressed by the Court in
McKennon were not applicable to the instant case.
Id.
Although the Assistant Secretary agrees with the conclusion
of the ALJ concerning Red Label's liability for back pay to
ulanax, he urges that the analysis of this issue turns on the
limited applicability of the DOT age requirement to work
performed by Mulanax for Red Label. Asst. Secretary's Brief at
38-42. Specifically, the Assistant Secretary states that Red
Label has not demonstrated that an underage Mulanax was not
available for work as a driver with Red Label during the back pay
period, because, although Mulanax was not old enough to drive a
commercial motor vehicle, he would have been eligible to drive
other vehicles operated by Red Label, as he had been doing prior to being terminated.[3] Asst. Secretary's Brief at 40-42. The
Assistant Secretary's contention has merit.
The Federal Motor Carrier Safety Regulations, in which the
Section 391.11(b) age requirement is found, apply to "commercial
motor vehicles", as defined at Section 390.5. 53 Fed. Reg. 18042
(May 19, 1988); see 20 C.F.R. § 390.3(a). Section
390.5, which implements the statutory definition codified at 49
U.S.C. § 31132,[4] exempts vehicles having a gross vehicle or
combination weight rating of 10,000 pounds or less, unless such
vehicle is designed to transport more than 15 passengers,
including the driver, or is used to transport quantities of
hazardous materials that require placarding under the DOT
regulations. 20 C.F.R. § 390.5 (1994); see 53 Fed. Reg.
18042 (May 19, 1988); see generally F.M.C. Gold Co.,
991 OSAHRC Lexis 178 (No. 90-0328, 1991)(relying on Section 390.5
definition of commercial motor vehicles to reject employer's argument
that vehicles were covered by DOT safety regulations rather than the
Occupational Safety and Health Act of 1970[5] ).
In testimony concerning his work as a driver for Red Label,
ulanax indicated that he drove at least two vehicles that do not
qualify as "commercial motor vehicles" under Section 390.5[6]
and thus are not subject to the Section 391.11(b) age
restriction. T. 178-81.[7] I therefore agree with the
Assistant Secretary that Red Label has failed to establish that
ulanax was either unwilling or unable to perform his customary
work with Red Label. See National Labor Relations Board v.
Laborers' Int'l Union, 748 F.2d 1001, 1005 (5th Cir. 1984).
Accordingly, I agree with the conclusion of the ALJ that Red
Label is liable for back pay from the date of Mulanax's
termination until the date that a
[PAGE 4]
reinstatement offer was properly made. R. D. and O. at 26-28.
2. Date of reinstatement offer
I similarly agree with the conclusion reached by the ALJ
concerning the date upon which Red Label's liability for back pay
to Mulanax ended,[8] but add the following reasoning in support
of that conclusion. The ALJ concluded that the period for which
back pay was due ended on March 1, 1995, the date upon which
ulanax received the February 16, 1995 letter from Red Label
offering him reinstatement. R. D. and O. at 26. In support of
this conclusion, the ALJ cited Polewsky v. B&L Lines, Inc.,
Case No. 90-STA-0021, Sec. Dec., May 29, 1991, slip op. at 5.
R. D. and O. at 26 n.42. Red Label urges that the date of the
offer letter, plus three days for mailing, should be the
determinative date. Respondent's Brief at 6.
The record indicates that the offer letter was addressed by
Red Label to Mulanax in care of counsel for the Assistant
Secretary. Red Label letter of Feb. 16, 1995 to Mulanax,
appended to Respondent's Pre-Trial Statement of Mar. 6, 1995.
ulanax's testimony at hearing indicates that he did not receive
the Red Label letter, which was relayed to him by counsel for the
Assistant Secretary, T. 172-73, until "around March 1st or
February 28th." T. 243. Although Red Label's counsel indicated
at hearing that the complainants in this case had to be contacted
through counsel for the Assistant Secretary, rather than
directly, T. 172; see 29 C.F.R. §§ 18.3(b),
1978.106(a), the record clearly indicates that Mulanax and
Andersen were unrepresented in this action. The Notice
Concerning Procedures that was issued by the ALJ on February 2,
1995, referred repeatedly to "the counsel for the Assistant
Secretary" and did not indicate that the Assistant Secretary's
counsel was serving as counsel to Mulanax. Notice Concerning
Procedures of Feb. 2, 1995 at 1-2; see T. 4-6 (discussion
of pro se status of complainants in this case). The
February 2, 1995 Notice also provided Red Label with the correct
address for Mulanax, by virtue of the service sheet that was
appended to the Notice.
In these circumstances, Red Label's failure to address the
offer of reinstatement directly to Mulanax on February 16, 1995
delays the tolling of its back pay liability. As indicated by
the ALJ, the Secretary has held that back pay is tolled when a
bona fide offer of reinstatement is made.
Polewsky, slip op. at 5; see Asst. Sec. and
Zessin v. ASAP Express, Case No. 93-STA-0033, Sec. Dec., Jan.
19, 1993, slip op. at 14; Asst. Sec. and Phillips v. MJB
Contractors, Case No. 92-STA-0022, Sec. Dec., Oct. 6, 1992,
slip op. at 4-5; see also National Labor
Relations Board v. Jay Co., 227 F.2d 416, 418-19 (9th Cir.
1954)(holding bona fide offer of reinstatement
sufficient to toll employer's back pay liability as of the date
of the offer), enforcing 103
[PAGE 5]
N.L.R.B. 1645 (1953); see Marlene Industries Corp., 234
N.L.R.B. 285, 287-89 (1978) and cases cited
therein.
In this case, however, Red Label failed to utilize other,
more expeditious means of communicating the offer to Mulanax.
See Marlene Industries Corp., 234 N.L.R.B. at 287-89;
cf. Jay Co., 227 F.2d at 419 (addressing failure of
employer to utilize means other than mailing a letter offering
reinstatement to the last known address of the discharged
employee). Particularly in view of Red Label's
recalcitrance in responding to the Regional Administrator's
December 15, 1994 order to immediately reinstate Mulanax, Red
Label's failure to address the February 16, 1995 letter directly
to Mulanax undermines the conclusion that such reinstatement
offer serves to toll Red Label's back pay liability as of the
date of the letter. I therefore conclude that the ALJ properly
determined that the date upon which Mulanax actually received the February 16, 1995 letter from Red Label was the date
upon which Red Label's liability for back pay was tolled.[9]
ORDER
The ALJ's order is affirmed, to wit:
1)Respondent Red Label is ordered to pay Complainant
Andersen back pay in the amount of $3,090.00;
2)Respondent Red Label is ordered to pay Complainant Mulanax
back pay in the amount of $4,029.77;
3)Respondent Red Label is ordered to pay interest on the
foregoing amounts, to be calculated pursuant to 26 U.S.C. §
6621, and to accrue until such time as each of the foregoing back
pay amounts is paid;
4)Respondent Red Label is ordered to expunge from its files
all adverse references to the protected activities of
Complainants Andersen and Mulanax and shall refrain from
providing adverse information to any third party about the job
performance of either Complainant.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] By order issued August 30, 1995, the Assistant Secretary's
motion to withdraw his brief of August 11, 1995 and to file a
revised brief was granted. Order Granting Assistant Secretary's
otion for Leave to Withdraw Brief and File Revised Brief of
Aug. 30, 1995. The revised brief was filed by the Assistant
Secretary on September 11, 1995.
[2] Mulanax testified that he became 21 on March 12, 1995.
T. 177; see R. D. and O. at 27. The back pay period ended
on March 1, 1995. See R. D. and O. at 26-27 n.42;
discussion, infra.
[3] The Assistant Secretary also states that, in situations
where the employee's work would subject him to the DOT age
requirement, the decision of the Supreme Court in Sure-Tan,
Inc. v. National Labor Relations Board, 467 U.S. 883 (1984),
rather than McKennon, provides guidance. The
Assistant Secretary urges that a case involving a commercial
motor vehicle driver who is under age 21 would be analogous to
Sure-Tan, which involved illegal alien employees
who were deemed unavailable for work and thus precluded
from recovering back pay. Asst. Secretary's Brief at 38-40.
[4] See Pub. L. 103-272, §1(e); 108 Stat. 1000
(1994).
[5] Pub. L. 91-596, 84 Stat. 1590 (1970)(codified at 29 U.S.C.
651 et seq.).
[6] The parties agreed at hearing that Mulanax was covered by
the STAA. T. 20-23. Prior to hearing, however, Red Label filed
a motion to dismiss, to which an affidavit from John Walker,
president of Red Label, was appended, and which urged that
ulanax's position at Red Label had been that of van driver,
which position did not require driving "commercial motor
vehicles" as defined under the STAA. Respondent's Motion to
Dismiss dated Jan. 6, 1995. The Assistant Secretary responded to
that motion with both argument and supporting declarations from
ulanax and OSHA investigator Russell C. Hart, refuting the basis
for Red Label's Motion to Dismiss. Prosecuting Party's
emorandum in Opposition to Respondent's Motion to Dismiss dated
Feb. 13, 1995. Relevant to this issue, and as indicated by the
Assistant Secretary, although both the STAA definition of a
commercial motor vehicle and the Federal Motor Carrier Safety
Regulation at Section 390.5 contain similar provisions for
coverage of passenger vehicles and vehicles transporting
hazardous materials, the STAA definition otherwise covers those
vehicles having a minimum weight rating of 10,000 pounds, 49
U.S.C. 31101(1), whereas the Section 390.5 minimum weight rating
is 10,001 pounds. It is also noted that STAA coverage
extends to "employees" in the commercial motor carrier industry
as defined at 29 C.F.R. § 1978.101(d), and includes,
inter alia, any employee "who is employed by a commercial
motor carrier and who in the course of his employment directly
affects commercial motor vehicle safety...." See, e.g.,
Rehling v. Sandel Glass Co., Case No. 91-STA-33, Sec. Dec.,
Jan. 6, 1992.
[7] In this regard, Mulanax testified specifically that he had
driven a "three-quarter ton van" and a "10,000 pound gross
weight" truck, in addition to a "box van." T. 178-81.
[8] Inasmuch as Andersen had obtained higher paying employment
prior to receipt of the reinstatement offer from Red Label, which
therefore tolled Red Label's liability for back pay, see
Earwood v. D.T.X. Corp., Case No. 88-STA-21, Sec. Dec., Mar.
8, 1991, slip op. at 10; Nelson v. Walker Freight Lines, Inc.,
Case No. 87-STA-24, Sec. Dec., Jan. 15, 1988, slip op. at 6
n.3, it was unnecessary for the ALJ to reach the question of the
date the reinstatement offer was properly made to Andersen by Red
Label. R. D. and O. at 21.
[9] In reaching this conclusion, the ALJ rejected the Assistant
Secretary's argument that the actual date of rejection of the
reinstatement offer, March 14, 1995, T. 242-43, tolls Red Label's
back pay liability. R. D. and O. at 26 n.42. The Assistant
Secretary has not renewed this argument nor otherwise challenged
the ALJ's reliance on March 1, 1995. Asst. Secretary's Brief at
43. The determination concerning the date on which back pay
is to be tolled will turn on the particular circumstances surrounding
the offer of reinstatement in each case. Cf. Asst. Sec. and Lansdale
and Lee v. Intermodal Cartage Co., Ltd., Case No. 94-STA-22, Sec.
Dec., Jul. 26, 1995, slip op. at 4 (addressing delay in resumption of
employment following reinstatement offer that was beyond control
of complainant).
