Nichols v. Bechtel Construction, Inc., 87-ERA-44 (ALJ May 4, 1993)

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USDOL/OALJ Reporter
Nichols v. Bechtel Construction, Inc., 87-ERA-44 (ALJ May 4, 1993)

U.S. Department of Labor
Office of Administrative Law Judges
101 N E. Third Avenue. Suite 500
Ft. Lauderdale. FL 33301

DATE: MAY 4, 1993

CASE NO: 87-ERA-0044

In The Matter of

ROY EDWARD NICHOLS,
Complainant

BECHTEL CONSTRUCTION, INC.
Respondent

Appearances:

ARTHUR W. TIFFORD, ESQ.
For the Complainant

KENNETH R. CASS, ESQ.
WILLIAM F. HAMILTON, ESQ.
For the Respondent

Before: E. EARL THOMAS
District Chief Judge

RECOMMENDED DECISION ON REMAND AND ORDER DENYING MOTION FOR
RECONSIDERATION OF ORDER DENYING MOTION FOR ADMISSION OF AFFIDAVIT
TESTIMONY AND DENYING MOTION FOR RE-OPENING OF HEARING

1. Recommended Decision and Order on Remand

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The instant matter is before the undersigned on remand from the Secretary for a determination of back pay in this case arising under Section 210 of the Energy Reorganization Act of 1974, 42 U.S.C. §5851 (hereinafter "ERA" of the "Act") and the implementing regulations set forth at 29 C.F.R. Part 24. These provisions, commonly known as the "whistleblower" provisions, protect employees against discrimination in employment for attempting to implement the purposes of the ERA and the Atomic Energy Act, as amended, found at 42 U.S.C. 2011 et seq. A hearing was held in Miami, Florida on January 19, 1993 and continued on February 18, 1993, and all parties were afforded full opportunity to present evidence and legal argument.

STATEMENT OF THE CASE

In the Secretary's Decision and Order on Remand, the Secretary concluded that Complainant had engaged in protected activity under the ERA and that the Employer was aware of the protected activity at the time Employer chose to lay off the Complainant. Further, the Secretary found that the Complainant introduced sufficient evidence to raise an inference that Complainant's protected activities motivated his being selected for layoff and, consequently, that Complainant had made a prima facie case that the Employer violated the ERA.

The facts relevant to the determination of the back pay issue are as follows. Complainant worked as a carpenter for Respondent, Betchel Construction, Inc., a contractor to Florida Power and Light, the licensee of the Turkey Point nuclear power facility at Florida City, Florida. Complainant had worked full time for Betchel for approximately 31 months, excluding a nine or ten week period of layoff, at which time Complainant was one of the last workers laid off. At the time at issue here, Complainant was assigned to and working in foreman Greg Lilge's crew. As found by the Secretary, Complainant was a permanent employee, rather than one hired for a specific outage.¹ An outage occurs approximately every 18 months when the nuclear units are shut down for refueling, maintenance and general repairs. During these outage periods, the number of workers needed increases, and consequently, additional workers are hired.

During May 1987, there were outages in two units, and Betchel needed a great number of extra workers. One of the crews established to work an outage was under the supervision of foreman John Wright. Wright's crew was to be staffed with transfers from already established crews as well as by hiring new workers. The Laborer General Foreman, Williams, told Lilge to name a carpenter to be transferred to Wright's crew, and suggested carpenter Russ Smith.² Lilge asked Williams

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to take Complainant instead.³ Lilge testified that for about six months, he had been having 'an attitude problem' with Complainant.⁴ Lilge stated that a few weeks prior to suggesting Complainant for transfer to Wright's crew, Lilge had recommended to Williams that Complainant be laid off in the next reduction in force.⁵ Although Williams told Complainant that Wright's crew needed some experienced carpenters, and that it was More than likely' that Complainant would return to Lilge's crew when the outage was over, Williams testified that he did not tell Complainant the whole truth, and that Williams actually believed that all of Wright's crew (including Complainant) would be laid off at the end of the outage.⁶

According to the Secretary's Decision and Order of Remand, the Complainant's protected activity and the Employer's violation of the ERA took place while Complainant was working in Wright's crew. The Secretary found that during this time, Complainant had made an internal complaint regarding safety procedures. Further, that toward the end of the outage at issue, Williams told Wright to select one of the Carpenters on his crew to be laid off as part of a permanent reduction in force. Wright had initially selected a worker who had been absent from work, but then changed his mind and selected Complainant. Nichols was laid off on April 30, 1987. At the time he was laid off, Nichols was one of eight carpenters on the crew headed by foreman Wright. The crew consisted of foreman J. Wright, and carpenters P. Ramsdell, L. Kippenhan, R. Nicholas, M. Dean, D. Underwood, J. Lydon, and A. Howard. On May 5, Dean and Underwood were laid off in a reduction in force. Similarly J. Lydon was laid off on May 26, P. Ramsdell, L. Kippenhan and A. Howard were laid off on May 29, 1987, leaving only foreman Wright who was reassigned on back to Trantham's crew. Consequently, foreman Wright aside, all employees on Wright's crew were laid off at the termination of the 1987 outage.

As stated above, the instant matter is before the undersigned on remand from the Secretary for the purpose of making a back pay calculation. The purpose of a backpay award is to make the employee whole, that is, to restore the employee to the same position he or she would have been in if not discriminated against. Back pay awards should, therefore, be based on the earnings the employee would have received but for the discrimination. Blackburn v. Metric Constructors. Inc., 86-ERA-4 (Sec'y Oct. 30, 1991). Further, interim earnings in replacement employment should be deducted from a back pay award. Id. In addition, prejudgment interest on a back wages is permitted in whistleblower cases. Such interest is calculated in accordance with 29 C.F.R. §20.58(a), at the rate specified in the Internal Revenue Code, 26 U.S.C §6621. Id.

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The award of back pay promotes the remedial statutory purpose of making whole the victims of discrimination, and "unrealistic exactitude is not required" in calculating back pay, "uncertainties in determining what an employee would have earned but for the discrimination, should be resolved against the discriminating [party]." EEOC v. Enterprise Ass'n Steamfitters Local No. 6348, 542 F.2d 579, 587 (2d Cir. 1976), cert. denied, 430 U.S. 911 (1977), quoting Hairston v. McLean Trucking Co., 520 F.2d 226, 233 (4th Cir. 1975). Initially, the complainant bears the burden of establishing the amount of back pay that a respondent owes Adams v. Coastal Production Operators. Inc. 89-ERA-3 (Sec'y Aug. 5, 1992). Once the plaintiff establishes the gross amount of back pay due, the burden shifts to the defendant to prove facts which would mitigate that liability, Lederhaus v. Donald Paschen & Midwest Inspection Service. Ltd., 91-ERA-13 (Sec'y Oct. 26, 1992), slip. Op. at 9-10.

In the instant matter, although the Complainant is considered to have been a permanent employee over the 31 month period that he worked for Betchel,⁷ he was thereafter transferred to work an outage. As such, he was treated as any other worker who was hired during the temporary need for more workers. According to the evidence of record, all the workers in Wright's crew (except for Wright) were eventually laid off with the Complainant being the first in the group to be laid off. Viewing the facts in the light most favorable to Complainant, the undersigned assumes arguendo that, but for the discriminatory practice found by the Secretary, Complainant would perhaps not have been laid off first. Further, in giving the Complainant the benefit of the doubt, the undersigned concludes that the Complainant's employment would have terminated last. According to the record, on May 30, 1987, the final employee in Wright's group was let go. Consequently, the cut off date for back pay for the Complainant is May 30, 1987.

The undersigned's determination is in accord with the case law. In particular, in Blackburn,⁸ the Secretary adopted the "long accepted rule [in ERA cases] of remedies in labor law that the period of an employer's liability ends when the employee's employment would have ended for reasons independent of the violation found." The complainant in Blackburn was entitled to back pay until the end of the project for which he was hired. Further, the complainant in Blackburn presented no evidence to rebut the testimony of a supervisor that of the 45 electricians on the project from which complainant was discharged, only two were employed on employer's next job. Id. Similarly, it would be mere speculation to consider whether Complainant would have been rehired (Betchel has admitted that a

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few of the carpenters on Wright's crew were later rehired, however, they were only rehired for that single and relatively short period of time), and further that the Complainant in the instant matter offered no evidence to rebut the evidence of record that all the member's of Wright's crew, but for Wright, were subsequently terminated.

The undersigned finds that Nichols is entitled to one month of back pay wages, from April 29, 1987 through May 30, 1987 with interest. The back pay due Nichols was tolled as of May 30, 1987. In determining the amount of back pay that is due to Complainant Nichols, the undersigned considered the monthly wages of the Complainant for all the months for which he was working in the outage crew, which on the average was $3,638.00 per month. This amount reflects both straight time and overtime amounts which Complainant could have expected to have earned had he worked through the last month of the outage.

The undersigned notes that although inclined to have made a back pay award which would include an amount that Nichols could have earned had he been treated at least as good as other employees in Wright's crew which had been laid off and later rehired, (a successful ERA complainant is entitled only to the same treatment as other employees in the same position who were retained after layoff, Blake v. Hatfield Electric Co., 87-ERA-4 (Sec'y Jan. 22, 1992), the evidence of record fails to include proper and sufficient documentation upon which such a calculation could be made. Although the Employer in this action has submitted evidence which demonstrates that worker Ramsdell was rehired on August 16, 1988 for a term ending on January 4, 1989 at the pay rate of $14.80, worker Dean was rehired on August 16, 1989 for a term ending on March 13, 1990 at a pay rate of $13.32 and lastly that worker Lydon was rehired on August 29, 1988 for a term ending on January 11, 1989 at a pay rate of $14.80, the record contains insufficient evidence to establish the actual number of straight time and overtime hours which these rehired employees were able to work. Consequently, it is not possible for the undersigned to determine with any reasonable certainty the amount that Nichols might have earned had he had the same opportunity to be rehired a. the above mentioned workers. As noted above, initially the burden is on the Complainant to establish the amount of back pay that a respondent owes.⁹ With regard to establishing the amount of back pay due for a period of possible re-employment, the Complainant has failed to meet its burden.

In regard to any deductions to be made from the back pay award, $415.63 is to be subtracted from the total amount of wages to have been earned in the month of May. At the hearing on February 18, 1987, Complainant stipulated to the fact that any unemployment wages earned by Complainant were to be considered interim earnings to be subtracted from the award amount. Lastly, in accordance with 29 C.F.R. §20.58(a), and at the rate

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specified in 26 U.S.C. §6621, pre judgement interest is to be added to Complainant's award. The total amount of back pay due to Mr. Nichols is $3,222.37 with interest thereon calculated in accordance with the rate specified in 26 U.S.C. §6621 (1988).

2. Denial of Motion for Reconsideration of Order Denying Motion for Admission of Affidavit Testimony and Denying Motion for Reopening of Hearing

The Respondent's Motion for Reconsideration of Order Denying Motion for Admission of Affidavit Testimony and Denying Motion for Re-opening of Hearing dated April 21, 1993 is rendered moot in light of the above Recommended Decision and Order and is therefore DENIED.

E. Earl Thomas
District Chief Judge

EET/BMS/pcc
Ft. Lauderdale, FL

[ENDNOTES]

¹Secretary's Decision and order of Remand, 87-ERA-0044, Oct. 26, 1992, PP.2-3.

²Id. at 3.

³Id.

⁴Id.

⁵Id.

⁶Id. at 3-4.

⁷Id. at 2.

⁸Blackburn, 86-ERA-4.

⁹Adams, 89-ERA-3.