DATE: November 18, 1993
CASE NO. 87-ERA-0044
IN THE MATTER OF
ROY EDWARD NICHOLS,
COMPLAINANT,
v.
BECHTEL CONSTRUCTION, INC. [1]
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
Before me for review is the May 4, 1993, Recommended
Decision on Remand (R.D.R.) of the Administrative Law Judge (ALJ)
in this case arising under the employee protection provision of
the Energy Reorganization Act, as amended (ERA), 42 U.S.C. §
5851 (1988).
In an earlier decision issued October 26, 1992, [2] the
Secretary found that Respondent Bechtel Construction violated the
ERA when it laid off Complainant Nichols on April 30, 1987. The
Secretary remanded the case to the ALJ for further proceedings to
establish the complete remedy.
Relevant factual findings from the remand decision are set
forth to focus the discussion.
I. Facts
Nichols worked as a carpenter at the Turkey Point nuclear
facility from 1984 until he was laid off on April 30, 1987.
Remand Decision (Rem. Dec.) at 2-3. [3] Prior to March 1987,
Nichols was assigned to the crew of foreman Greg Lilge and worked
[PAGE 2]
outside the containment (radiologically hot) area. T. 233-289;
Rem. Dec. at 3. That month, Bechtel needed a great number of
craft workers to work in the containment area because of outages
in two units. T. 339; Rem. Dec. at 3. Bechtel formed an
additional crew of carpenters to work inside the containment area
and named John Wright the foreman. T. 338-340; Rem. Dec. at 3.
Carpenters' general foreman Larry Williams told foreman
Lilge to name a carpenter to be transferred to Wright's new crew,
and Lilge asked Williams to take Nichols. T. 342; Rem. Dec. at
3. Lilge testified that for about six months, he had been having
"an attitude problem" with Nichols. T. 290; Rem. Dec. at 3.
Lilge stated that a few weeks prior to suggesting Nichols for
transfer to the new crew, he had recommended that Nichols be laid
off in the next reduction in force. T. 290, 342-343; Rem. Dec.
at 3.
Williams told Nichols that it was "more than likely" that he
would return to Lilge's crew when the outages were over. T. 345;
Rem. Dec. at 4. Williams testified at the hearing, however, that
he did not tell Nichols the whole truth, and that at the time the
crew was formed, Williams believed that all of Wright's crew
would be laid off at the end of the outages. T. 344-346; Rem.
Dec. at 4.
While assigned to Wright's crew, Nichols questioned the
procedure Wright told the workers to use for surveying and
tagging tools contaminated with radiation and persisted in
bringing the issue to others for resolution. Rem. Dec. at 4-5.
Bechtel does not use seniority in layoffs. When it is time
to reduce the number of workers at the Turkey Point plant, the
general foreman asks craft foremen to recommend particular
workers for layoff. T. 364-365; Rem. Dec. at 6. Toward the end
of the outages at issue, Williams told foreman Wright to select
one of the carpenters on his crew for layoff as part of an
ongoing reduction in force. T. 366-367; Rem. Dec. at 6. Wright
initially named a worker who had been absent from work, but then
changed his mind and selected Nichols. T. 366-367, 461-462; Rem.
Dec. at 6. When Wright informed Williams that Nichols would be
the first worker laid off from the crew, Williams asked Wright if
he was sure about the choice. T. 367; Rem. Dec. at 6. During
the month following Nichols' layoff, Wright's entire crew was
laid off except for Wright, who was transferred back to being a
laborer on his former crew. T. 44; Rem. Dec. at 7.
II. The Remand Decision
The Secretary found that Nichols' questioning of the safety
procedure Wright used was "tantamount to a complaint that the
correct safety procedure was not being observed" and constituted
protected activity under the ERA. Rem. Dec. at 10. The
Secretary further found that the reasons Bechtel gave for
[PAGE 3]
selecting Nichols "as the first carpenter to be laid off from
Wright's crew were not believable, and . . . [Nichols] has
sustained the burden of persuasion that the real reason for his
selection was his protected activity." Rem. Dec. dec. at 17.
She therefore found that Bechtel violated the ERA when it
selected Nichols for layoff. Id. The Secretary ordered
Bechtel to offer Nichols reinstatement to the same or a similar
position, to pay the back pay to which he is entitled, and to pay
the costs and expenses in bringing the complaint, including an
attorney fee. Noting that the record did not include the
evidence needed to calculate the back pay owed to Nichols, the
Secretary remanded to the ALJ for proceedings to establish the
complete remedy. Id. at 18.
III. Proceedings on Remand
On the date of the scheduled hearing on remand, Bechtel
requested a 30 day continuance to permit it to obtain
documentation from Nichols concerning his activities and earnings
since the 1987 layoff. RT. 8-10. The ALJ granted the request.
RT. 20-21. During the 30 day interval, the ALJ granted Bechtel's
motion to shorten the time to respond to its interrogatories and
request for production of documents, Order of Feb. 12, 1993, and
also granted the subsequent emergency motion to compel Nichols to
answer the propounded interrogatories and to submit to a
deposition prior to the date for the continued hearing. Order of
Feb. 17, 1993. Nichols did not submit to the deposition and
provided answers to the interrogatories after the start of the
continued hearing on February 18, 1993. At the end of the
continued hearing, the ALJ left the record open for 30 days to
permit the submission of relevant documents. RT. 89.
Within 30 days, Bechtel submitted a Memorandum on Back Pay
Determination (Back Pay Memo) supported by a number of documents.
It also moved the admission of a number of affidavits, or in the
alternative, asked that the hearing be reopened to allow it to
present witnesses and documentary evidence. The ALJ declined to
admit the affidavits because they were submitted post-hearing and
Nichols would not have had the opportunity to cross-examine the
affiants. Order of Apr. 16,1993 at 3. Although the requested
reopening of the hearing would have permitted cross-examination,
the ALJ declined it because of the Secretary's direction to
complete the remand proceedings expeditiously. Id. at 4.
IV. Recommended Decision on Remand
The ALJ found that Bechtel would have laid off Nichols no
later than May 30, 1987, the day the final employee on Wright's
crew was laid off as the outages ended. R.D.R. at 4. To
calculate the back pay owed for the month of May 1987, the ALJ
computed the average monthly wage Nichols earned during the
double outages in 1987. Id. Pursuant to Nichols'
stipulation
[PAGE 4]
at the hearing, RT. 18, the ALJ deducted the amount of
unemployment compensation that Nichols received for the month.
R.D.R. at 5. He found that Bechtel owed Nichols $3,222.37, plus
interest calculated pursuant to 16 U.S.C. § 6621 (1988).
The ALJ noted that a few of the other employees on Wright's
crew that were laid off shortly after Nichols were later rehired
for a period, but found that there was not sufficient evidence to
establish the number of straight time and overtime hours the
rehired employees worked. R.D.R. at 5. Accordingly, the ALJ
found that Nichols did not meet his burden of establishing how
much he would have earned during a period of reemployment at
Bechtel. Id.
The ALJ did not mention Nichols' request for payment of
medical and related costs and an attorney fee. The ALJ denied as
moot Bechtel's motion for reconsideration of the earlier Order
denying the admission of affidavit testimony or the reopening of
the hearing. R.D.R. at 6. See RT. 20.
The parties filed briefs before me concerning the R.D.R.
V. Renewed Motion to Admit Affidavits or Reopen
Hearing
Bechtel again seeks the admission of the affidavit testimony
it submitted after the hearing, or in the alternative, for
reopening to permit the taking of additional testimony. Resp.
Br. at 10-13. I recognize that the Secretary's earlier
admonition to proceed expeditiously on remand resulted in a lack
of sufficient time either to conduct discovery or to reopen the
hearing after it closed.
I find that the late-tendered affidavits and evidence are
not necessary to decide the issues on remand and I have not
relied upon them. In view of Bechtel's lack of opportunity for
discovery and inability to depose Nichols prior to the hearing on
remand, I will admit Bechtel's post-hearing affidavits and
evidence into the record. [4]
VI. The Remedy
A. Reinstatement
The ERA's employee protection section provides that if the
Secretary finds that a violation occurred, he shall order the
violator to "reinstate the complainant to his former position
together with the compensation (including back pay), terms,
conditions, and privileges of his employment. . . ." 42 U.S.C.
§ 5851(b)(2)(B). The Secretary ordered reinstatement in the
remand decision, and Nichols continues to seek it. RT. 72.
Although the Secretary found that Nichols was a permanent
employee prior to his 1987 layoff, that finding does not resolve
the issue of his entitlement to reinstatement. See,
e.g., Blackburn v. Metric Constructors, Inc., Case
No. 86-ERA-4, Dec. and Order on Damages, etc., Oct. 30, 1991,
slip op. at 20, (reinstatement not appropriate for employee who
would have been
[PAGE 5]
laid off for legitimate reasons); rev'd on other grounds,
Blackburn v. Martin, 982 F.2d 125 (4th Cir. 1992). As it
may no longer be appropriate to order that Bechtel reinstate
Nichols, I will examine the issue.
On remand, the ALJ determined that Nichols would have been
laid off no later than May 30, 1987, and I agree. As of that
date, all of the crew to which Nichols was assigned had been laid
off except for foreman Wright, who returned to his prior position
as a laborer on a different crew. R.D.R. at 3.
It is possible, of course, that as a permanent worker,
Nichols might have been entitled to return to his prior crew when
Wright's crew was laid off. The record reveals otherwise,
however. Foreman Greg Lilge believed that Nichols had exhibited
an "attitude problem" for about six months prior to Nichols'
transfer to Wright's new crew. T. 290, 292. Lilge explained
that:
[t]his change, it was the way he was responding when I
told him to do things. He would get upset with me, or
angry, or try and tell me how to do the job. At that
point, I had determined about a month before . . . I
transferred [Nichols] over to the other crew, when
Larry [Wright] asked me for a man . . . I was going to
lay [Nichols] off the next lay off. I knew that it
would eventually come, because of his attitude.
T. 290. Williams corroborated Lilge's testimony, T. 343, and no
one controverted it.
When Williams formed the new crew and transferred Nichols to
it, he expected that Nichols would be laid off with the rest of
the crew at the end of the outages. T. 344-346. As the ALJ
found, R.D.R. at 4, the transfer to Wright's crew gave Nichols
the status of a worker who was hired to work the outages. I find
that at the time Bechtel formed the new crew, which was prior to
the time Nichols engaged in protected activity, Nichols already
was slated for layoff when Wright's crew disbanded for lack of
work. I therefore find that it is no longer appropriate to order
that Bechtel reinstate Nichols. See, Blackburn,
slip op. at 20.
B. Back pay
The purpose of a back pay award is to make the employee
whole by restoring the employee to the same position he would
have been in if not discriminated against. Blackburn,
slip op. at 11 and cases there cited. Therefore back pay awards
are based on the earnings the employee would have received but
for the discrimination. Id. Thus, when an employee who
was laid off for discriminatory reasons nevertheless would have
been laid off for legitimate reasons, back pay would be cut off
at the point of the legitimate layoff. SeeBlake v.
Hatfield Electric Co., Case No.
[PAGE 6]
87-ERA-4, Dec. and Rem. Ord., Jan. 22, 1992, slip op. at 14.
Nichols' selection for layoff that was tainted by a
discriminatory reason was effective April 30, 1987. He would
have been laid off in any event some time during the month of May
as Wright's crew was dismantled. Uncertainties in determining
what a complainant would have earned absent discrimination are
resolved against the discriminating employer. Adams v.
Coastal Production Operators, Inc., Case No. 89-ERA-3, Dec.
and Ord. of Rem., Aug. 5, 1992, slip op. at 16 and cases there
cited; Lederhaus v. Donald Paschen, et al., Case No. 91-
ERA-13, Dec. and Order, Oct. 16, 1992, slip op. at 10. I agree
with the ALJ, R.D.R. at 4, that Nichols is entitled to the
presumption that he would have been the last worker laid off from
Wright's crew, effective May 30. I therefore agree with the ALJ
that Nichols is entitled to one month's back pay. R.D.R. at 5.
Since Nichols' pay fluctuated with the amount of overtime
available, another uncertainty is the amount he would have earned
in May 1987. Bechtel argues that back pay should be based on the
average amount Nichols earned during his entire employment at
Turkey Point, from 1984 to 1987. Back Pay Memo at 19. Those
years included lengthy periods when there was no outage and
consequently little overtime available. Id. at 18. But
as Bechtel conceded, in the first third of 1987, there were
outages in two units, "hours were long and overtime was common."
Id. I therefore agree that in projecting what Nichols
would have earned during the final month of his employment during
the 1987 outage, Nichols is entitled to the benefit of the
overtime pay that accompanied the longer hours during outages.
The ALJ took Nichols' pay for January through April 1987 (CX 1,
1987 W-2 form) and divided by four to derive an average monthly
wage in 1987. R.D.R. at 5. I agree that the resulting amount
($3,638.00) satisfactorily reflects the amount Nichols would have
earned in May 1987.
I agree that Nichols did not provide sufficient evidence to
determine how much he would have earned if he had been recalled
to work at Turkey Point, as happened to some other members of
Wright's crew who were laid off shortly after Nichols.
See R.D.R. at 5. In any event, Nichols could not have
been recalled after he allowed his union membership to lapse.
See RX 1.
The Secretary normally does not deduct unemployment
compensation from a back pay award. See, e.g.,
Williams v. TIW Fabrication & Machining, Inc., Case No.
88-SWD-3, Dec. and Order, June 24, 1992, slip op. at 12-13. In
this case, however, Nichols stipulated that the amount of
unemployment compensation benefits he received would be deducted
from the back pay award. RT. 18. Absent a provision in a
stipulation which might be contrary to public policy, a
stipulation is like a settlement or a contract
[PAGE 7]
and the parties should be held to their bargain. Goldstein v.
Ebasco Constructors, Inc., Case No. 86-ERA-36, Dec. and
Order, Apr. 7, 1992, slip op. at 17, rev'd on other
grounds, Ebasco Constructors, Inc. v. Martin, No. 92-
4576 (5th Cir. Feb. 19, 1993); seealso,
Graefenhain v. Pabst Brewing Co., 870 F.2d 1198, 1206 (7th
Cir. 1989) (stipulation binding unless relief from stipulation
necessary to prevent manifest injustice, or stipulation entered
into through inadvertence or based on erroneous view of facts or
law).
Nichols has not sought relief from his stipulation. I find
that the stipulation to deduct unemployment benefits is not so
contrary to public policy as to warrant nonenforcement of the
stipulation in this case. Therefore, the ALJ correctly deducted
unemployment compensation of $415.63 [5] from the back pay award
for the month of May 1987, for a total of $3,222.37. R.D.R. at
5. I also affirm the award of prejudgment interest on back pay
at the rate specified in 26 U.S.C. § 6621. R.D.R. at 5.
C. Medical benefits
Nichols claimed entitlement to reimbursement of medical and
prescription drug expenses for the years 1987 through 1992. RT.
18; CX 8. Although Nichols initially claimed that he lost his
health insurance when Bechtel laid him off, RT. 18, he later
testified that, through the union to which he belonged, his
benefits continued until "somewhere around [19]88." RT. 37.
Nichols testified that he was suspended from the union late in
1988 for nonpayment of dues. RT. 57. Bechtel submitted union
documents showing that Nichols was suspended in March 1989.
RX 1. On cross-examination, Nichols admitted that the claimed
medical expenses for 1987, 1988, and a portion of 1989 may have
been paid by the union.
Since Nichols would have been laid off anyway by May 30,
1987, and the union continued Nichols' health insurance through
that month, Bechtel does not owe payment of any health related
expenses.
D. Attorney fee
Nichols submitted into evidence the fee agreement he had
with his attorney in this case, which provided that Nichols would
pay all costs and expenses, a guaranteed retainer of $15,000
payable in advance for the first 60 hours, and $250 per hour for
each hour of work in excess of 60 hours. CX 6 p. 1. Counsel
explained that Hurricane Andrew destroyed the time records for
the work he performed prior to the remand. RT. 19. Accordingly,
Nichols seeks a payment of $15,000 as full reimbursement of
attorney fee and costs, and is waiving entitlement to all hours
of work performed by counsel in excess of 60. Request for
Attorney's Fee at p. 2 par. 4. To support his claim to the
$15,000 fee, counsel attached to the fee request his time records
[PAGE 8]
showing 40 hours of work on this case after the remand. Request
for Attorney's Fee at Ex. 1. Bechtel did not dispute the $15,000
fee.
I find that $15,000 is a reasonable attorney fee for the
representation of Nichols in this matter.
ORDER
Accordingly, it is ORDERED that:
1. Respondent pay Complainant the sum of $3222.37 in back
pay (including overtime) for the period April 30 through May 30,
1987, with interest thereon calculated in accordance with 26
U.S.C. § 6621 (1988).
2. Respondent pay attorney Arthur W. Tifford the sum of
$15,000.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] The name of Bechtel Construction, Inc. has changed to
Bechtel Construction Company. For purposes of consistency with
earlier decisions, the former name is retained in the caption of
this case.
[2] An Errata Order issued on October 30, 1992 corrected the
October 26 decision.
[3] Nichols was laid off for a period of about seven weeks in
the summer of 1985. RT. 53 (reference is to the transcript of
the 1993 hearing on remand). "T." refers to the transcript of
the 1988 hearing.
[4] Bechtel's Memorandum on Back Pay Determination ("Back Pay
Memo") submitted after the hearing, appears to be the post-
hearing submission that the ALJ authorized. I have now accepted
into the record on remand the following documents attached to
Bechtel's Back Pay Memo:
1. Bechtel Journeyman Carpenter Wage Scale for 1986 through
1993.
2. Bechtel craft layoff list April 10, 1987 through June 26,
1987.
3. Wright's crew daily time sheets for April 1, 1987 through
June 1, 1987.
4. Crew personnel files for members of Wright's crew and
chart of reemployment of that crew at Bechtel after May 30, 1987.
5. Carpenters' Union Local No. 125 records concerning
Nichols.
6. Specified pages of the November 5, 1987, hearing
transcript in this case. (I note that the entire transcript of
the original hearing in this case is already part of the record).
7. Financial statements for New Beginning Cabinetry, Inc.
for the year ending December 31, 1992.
8. Affidavits of David E. Shanteau, Larry Williams, William
D. Callahan, David E. Biddle, Myron Solomon, John B. Reid, and
Paul Cyman.
9. W-2 Statements for Nichols for 1984 through 1987.
In addition, the following documents also submitted post-
hearing are accepted into the record:
1. Affidavit of Ibrahin Leon.
2. Affidavit of J. Kenneth Lipner and attachments.
3. Nichols payroll records from 1986 and 1987.
The tendered notice of filing of Nichols' medical records
does not include any attached medical records. Accordingly, the
medical records are not accepted into the record of this case.
[5] The total amount of unemployment compensation listed on
Nichols' 1987 income tax return, $3325, (CX 1) divided by the
eight months he was unemployed that year, yields a monthly amount
of $415.63.
