Respondent, when he reported, to the proper authorities, certain safety concerns about the power plant. Such activity is protected under the controlling law, the Energy Reorganization Act (ERA), 42 U.S.C. § 5851 (1982).

    The relevant facts of record are as follows. Mr. Priest's employment was terminated by Baldwin Associates on April 23, 1984. (Transcript (Tr.) 38) From April 24, 1984 until September 9, 1984, Mr. Priest remained unemployed. (Tr. 19) He stated that he received about $2,000.00 of unemployment insurance during this time. (Tr. 43) On September 10, 1984, Mr. Priest began working at Egizii Electric and continued until he was injured on October 15, 1984, while lifting a generator. (Tr. 21) He then received workers' compensation benefits during the course of his injury until November 5, 1984. He returned to Egizii briefly from November 6, 1984 until November 13, 1984, but could not maintain his employment due to the injury. He received additional workers' compensation benefits from November 14, 1984 until May 11, 1986. (Affidavit of Jack Priest Regarding Wages and Benefits Due.)

    The issues involved in calculating the back pay award are:

1) Whether Mr. Priest voluntarily removed himself from the work force at any time after termination, precluding entitlement to back pay;

2) Whether Mr. Priest's subsequent employment with Egizii Electric tolls his entitlement to back pay;

3) Whether unemployment insurance and workers' compensation benefits received by Mr. Priest after his termination by Baldwin should be deducted from the award;

4) The time periods during which Mr. Priest is entitled to back pay;

5) The amount of back pay;

6) Whether interest should be added to the award; and

7) Whether attorney's fees should be awarded to Mr. Priest.

    There is a question of whether Mr. Priest voluntarily removed himself from the work force between the date of his discharge, April 24, 1984, and the date he began work for Egizii

    There appears to have been friction between Mr. Priest, Mr. O'Dell, and the union. Mr. Priest and Mr. O'Dell had grievances filed against Baldwin Associates at a time when the union earned between one and one-half to two million dollars in fees from Baldwin's work. Mr. Brilley refused to proceed with Mr. Priest's grievance and Mr. O'Dell suggested that both he and Mr. Priest may have been placed on hold by the union managers in retaliation for their actions against Baldwin.

    In any case, I find the evidence to support Mr. Priest's claim that he never requested to be placed on hold. It appears that Mr. Priest took the proper steps to gain employment and did indeed accept employment with Egizii Electric on September 10, 1984, four and one-half months after his discharge from Baldwin. Mr. Priest, therefore, did not remove himself from the work force and has not jeopardized his back pay award in that regard.

    Baldwin Associates contends that Mr. Priest's entitlement to back pay terminated when he accepted employment with Egizii Electric. The crux of Baldwin's argument is that Mr. Priest found employment at Egizii which was substantially similar to his job at Baldwin, and therefore effectively replaced it, just as if Mr. Priest had shifted from one job to another. (Respondent's Post-Hearing Brief Regarding Back Pay Issues at 16.) I disagree with Baldwin.

    The two jobs are not as similar as Baldwin asserts. The Egizii position consisted of much heavier labor than the Baldwin job, was outdoors as opposed to the indoor Baldwin job, was seasonal and not year-round, and did not offer overtime work which was plentiful at Baldwin.

    By accepting work with Egizii, Mr. Priest fulfilled his duty to mitigate damages. But taking this job did not preclude his right to payment for the income he has lost by virtue of being forced into a situation where he would not earn as much as he would have earned had he remained with Baldwin. Thus, the Egizii position did not serve to toll Mr. Priest's entitlement to back pay.

    Baldwin Associates originally argued at

the hearing that unemployment insurance received by Mr. Priest should be deducted from the back pay award. (Tr. 6) Baldwin did not make this argument in its Post-Hearing Brief, though, and does not appear to have deducted unemployment insurance payments from the recommended amount of back pay contained in its brief.

    Case law supports the position that back pay should not be offset by the amount of unemployment insurance received by a claimant. E.g., NLRB v. Gullett Gin Co., 340 U.S. 361 (1951); Hunter v. Allis-Chalmers Corp., 797 F.2d 1417 (7th Cir. 1986); McDowell v. Autex Fibers, Inc., 740 F.2d 214 (3rd Cir. 1984); Darnell v. City of Jasper, 730 F.2d 653 (11th Cir. 1984); Boich v. Federal Mine Safety and Health Rev. Comm'n, 704 F.2d 275 (6th Cir 1983); NLRB v. Pan Scape Corp., 607 F.2d 198 (7th Cir. 1979). Therefore, unemployment insurance received by Mr. Priest will not be deducted from his back pay award.

    Baldwin Associates also contends that workers' compensation benefits received by Mr. Priest from Egizii Electric should be set off against any back pay which Mr. Priest is awarded. Mr. Priest responds by arguing that those benefits are nondeductible collateral source payments because they do not emanate either directly or indirectly from Baldwin Associates.

    I agree with Baldwin Associates. I believe that workers' compensation is distinguishable from unemployment compensation and is deductible. It is not improper for Baldwin to receive credit for the workers' compensation payments received by Mr. Priest. Had Mr. Priest's workers' compensation been paid by Baldwin or its insurer, Baldwin could offset the amount paid against back pay because the compensation would have flowed from Baldwin. Although paid by Egizii Electric, workers' compensation retains the same characteristics as if it had been paid by Baldwin. It is in the nature of a salary substitute, it is calculated according to a formula based on the average weekly wage of the injured employee, and it replaces earnings which would have been offset against a back pay award. The unfortunate fact that an injury befell Mr. Priest does not alter the character of these payments. The injury caused Mr. Priest to receive compensation payments rather than wages for work performed.

    Moreover, to disallow deduction of the workers' compensation from back pay would be to give Mr. Priest his salary and his salary substitute; a double recovery which is highly unusual in workers' compensation cases. For these reasons, the amount of workers' compensation received by Mr. Priest will be offset against his back pay award.

    The purpose of a back pay award is to make the victim of discrimination whole, so that he or she receives the income which would have accrued had there been no illegal action by respondent. Cram v. Pullman-Higgins, 84-ERA-17 (1985). Thus, Mr. Priest is entitled to the income which he lost by virtue of the wrongful discharge.

    As a necessary corollary, Mr. Priest may not receive damages for any period after the time when his position with Baldwin would have ended legally, had he remained with the company. Hunter v. Allis-Chalmers Corp., 797 F.2d 1417 (7th Cir. 1986); Francis v. Bogan, Inc., 86-ERA-8 (1988); Walt Disney Productions, 48 NLRB No. 892 (1944), enf'd as modified, 146 F.2d 44 (9th Cir. 1944). Otherwise, Mr. Priest would be receiving income beyond that which was denied him by virtue of the illegal action taken by Baldwin.

    The evidence shows that the Baldwin project at the Clinton Nuclear Power Plant, from which Mr. Priest was wrongfully discharged on April 23, 1984, came to an end on June 14, 1986. (Statement of Baldwin Associates Regarding Back Pay.) This is the date on which Baldwin completed its reduction in work force at the project. Thus, Mr. Priest is entitled to back pay from the time of his discharge, April 23, 1984, until June 14, 1986.

    It should be noted that Baldwin contends

that it has been unfairly penalized because the Secretary of Labor did not issue the Final Decision in this case within the ninety day period prescribed by statute, but rather took two years to issue the Decision. Baldwin asserts that it should not be liable for damages beyond the ninety day period (plus two weeks which would have been needed to reinstate Mr. Priest) because it would have complied with an order to furnish back pay, and would have reinstated Mr. Priest, at that time, had the order been timely entered.

    I will not speculate as to what actions Baldwin or Mr. Priest would have taken had the Secretary's Final Decision and Order been timely issued. It would be inappropriate, in any event, for this office to disregard the Secretary's directives on remand and penalize Mr. Priest by reducing the amount of compensation due him because of delays in the decision making process.

    The first inquiry is whether Mr. Priest should be compensated at the rate of an electrician (journeyman wireman), and not a foreman, because he was demoted from his foreman position and made an electrician only eleven days before his termination and after he reported his safety concerns. I find that Mr. Priest should be compensated at the rate of an electrician, and not a foreman, for the following reasons.

    Second is the question of whether Mr. Priest is entitled to have prospective overtime included in the back pay award. The evidence establishes that overtime was available to the electricians employed by Baldwin. I find that overtime wages (paid at double the regular hourly wage) should be included in the back pay award.

    Mr. Priest testified that he regularly worked at least ten hours per day, six days per week, for a total of forty regular and twenty overtime hours. Pat Slaughter, who worked at the project until its completion, stated that such overtime was available for electricians, and Terry Lankow, a foreman, stated that there was more overtime available than could be handled. David Becker, a general foreman at the project, also stated that the men could work as much overtime as desired, and Phillip Green, another general foreman, echoed that statement.

weekdays consisting of eight regular hours each. Mr. Priest is also being credited with 7.3 overtime hours per week. Overtime will not be awarded, however, for the period of March 1, 1986 to June 14, 1986, because the evidence shows that overtime was not worked during these last 314 months at the project and that substantial reductions in staff were underway. (Exhibit R-6/C-9.)

    The total amount of back pay for all work days, without fringe benefits, is $104,413.45. The parties' figures on fringe benefits, which include amounts for the pension fund, the National Electrical Benefit Fund, and health and welfare benefits, are close but are not identical. I accept Baldwin's figures as controlling because they are slightly higher than those submitted by Mr. Priest, thus lending credibility to Baldwin's figures. The following chart illustrates the dollar amount of fringe benefits to which Mr. Priest is entitled.

                         Total              Fringe
  Dates               Hours Worked      Benefits/Hour      Total

4/24/84-5/31/84        256.2     x         $2.94    =  $  753.23
6/1/84-11/30/84       1215       x         $2.97    =  $ 3,608.55
12/1/84-5/31/86       3522.5     x         $2.97    =  $10,461.83
6/1/86-6/14/86          80       x       none paid  =       0

    Mr. Priest has requested that interest in the amount of 7.2% per annum be included in the back pay award. Bearing in mind the objective of fully compensating a wrongfully discharged employee, it is proper to include interest in a back pay award. Hunter, 797 F.2d at 1425-27 (7th Cir. 1986); Marshall v. Hope Garcia, Inc., 632 F.2d 1196, 1199 (5th Cir. 1980); Donovan v. Freeway Constr. Co., 551 F. Supp. 869, 880-81 (D.R.I. 1982); Chastang v. Flynn and Emrich Co., 381 F. Supp. 1348, 1352 (D.Md. 1974), aff'd, 541 F.2d 1040 (4th Cir. 1976); Francis v. Bogan, Inc., 86-ERA-8 (1988).

    Mr. Priest has also requested that he be awarded Attorney's fees. It is inappropriate for attorney's fees to be awarded at this time. Pursuant to 42 U.S.C. SS 5851 and 29 C.F.R. 24.6(b)(3), application must be made to this office for costs and expenses including legal fees. Hedden v. Conam Inspection, 82-ERA-3 (June 30, 1982); Deford v. TVA, 81-ERA-1 (March 4, 1981). An

appropriate request should be submitted within 60 days.

    It is ORDERED that Baldwin Associates pay back wages to Jack Priest in the amount of $76,679.68, plus interest at the rate of 7.2 percent per annum on the unpaid weekly wages from the time said wages were due until paid.

       DAVID A. CLARKE, JR.
       Administrative Law Judge

Dated: JUL 27 1988
Washington, D.C.

DAC/JS/dc