Case No. 84-ERA-17

Richard L. Cram,

    Complainant

    v.

Pullman-Higgins Company,

    Respondent

    Administrative Law judge (ALJ) Chester Shatz submitted a Recommended Decision and Order to me on July 24, 1984, in this case arising under the employee protection provision of the Energy Reorganization Act of 1974 (the Act), 42 U.S.C. § 5851. Judge Shatz recommended that Respondent Pullman-Higgins Company be found in violation of the Act for discharging complainant Richard L. Cram because the ALJ found that Respondent's action was taken in retaliation for Cram's protected activities of raising questions about safety in the construction of the Seabrook, N.H. nuclear power plant, and threatening to notify the Nuclear Regulatory Commission of some of the concerns. The ALJ recommended that Cram be reinstated, awarded back pay from the date of his discharge to the date of reinstatement, and awarded compensatory damages and attorneys' fees.

    After reviewing the record and the transcript of the two day hearing held in this case, I find that the ALJ carefully and thoroughly considered and weighed all the evidence, making

difficult credibility determinations on the basis of his evaluation of the testimony of witnesses appearing before him, and that his conclusions are fully supported by the record. I adopt his Recommended Decision in so far as it finds that Respondent violated the Act when it discharged Richard L. Cram.

    However, Respondent raised a point with respect to the remedy which apparently was not considered by the ALJ. Pullman- Higgins pointed out that there was evidence in the record that construction of the Seabrook nuclear power plant was suspended in March and April 1984, and general layoffs of construction employees took place. If this was the case, and Cram would have been laid off at that time anyway, neither reinstatement nor back pay beyond that time would be appropriate. Since the purpose of back pay is to make the victim whole, courts construct the hypothetical employment history of the discrimination victim to determine the appropriate scope of the remedy. UTU v. Norfolk & Western Ry., 532 F.2d 336 (4th Cir. 1975), cert. denied, 425 U.S. 934(1976). Back pay liability and the right to reinstatement ends when the discriminatee would have been laid off, absent any discrimination. Mansion House Center Management Corp., et al, 1974 CCH-NLRB 26,167.

    I reject Pullman-Higgins' assertion, however, that its back pay liability should cease on the date that the New Hampshire Department of Employment Security rejected Cram's claim for unemployment compensation on the grounds that Cram was self-employed and not seeking a job. Even if Cram were employed in a similar job at another power plant, he would be entitled to back pay if he were earning less than he did at Seabrook. Only payment of the difference would make him whole. See EEOC v. Ford Motor Co. 25 EPD 31,636(D.N.C.1977).

    Accordingly, this case is REMANDED to the Office of Administrative Law Judges for reconsideration of the recommended remedy. If necessary, the ALJ may consider additional evidence on the layoffs at the Seabrook nuclear power plant and how they would have affected Richard L. Cram.

       Under Secretary of Labor

Dated: JAN 14 1985
Washington, D.C.