DATE:  February 26, 1996
CASE NO. 95-CAA-00008


IN THE MATTER OF

RONALD CROW,

          COMPLAINANT,

     v.

NOBLE ROMAN'S, INC.
 
          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     In this case arising under the employee protection provision
of the Clean Air Act (CAA), 42 U.S.C. § 7622 (1988),
Complainant Ronald Crow alleged that his employer, Respondent
Noble Roman's, Inc., violated the CAA when it discharged him. 
The Administrative Law Judge (ALJ) found a violation and
recommended that Noble Roman's be ordered to reinstate Crow with
back pay and pay compensatory damages, attorney's fees and costs. 
I agree.
                               BACKGROUND  
     The ALJ's findings of fact, R. D. and O. at 1-7, are well
supported in the record and I adopt them.  Briefly, Crow worked
for Noble Roman's, a restaurant chain, as a maintenance
technician.  Crow sometimes repaired refrigeration equipment that
contained ozone-depleting compounds.  Since July 1, 1992, the CAA
has prohibited the venting of such compounds while maintaining,
servicing, repairing, or disposing of air conditioning or
refrigeration equipment.  42 U.S.C.A. § 7671g(c) (Supp.
1993).  An Environmental Protection Agency (EPA) regulation
implementing that section requires, as of November 14, 1994, that
technicians who work on refrigeration equipment containing ozone-
depleting 
[PAGE 2]
compounds be certified by passing an EPA-approved course.  R. D.
and O. at 2.
     Early in January 1995, Crow, who was not certified under the
EPA regulation, refused to work on a freon leak in refrigeration
equipment and was fired the next day.
                                DISCUSSION
     The Secretary has found that under the similar employee
protection provision of the Energy Reorganization Act (ERA), 42
U.S.C.A. § 5851 (West 1994), a worker has the right to
refuse work when "he has a good faith, reasonable belief that
working conditions are unsafe or unhealthful.  Whether the belief
is reasonable depends on the knowledge available to a reasonable
[person] in the circumstances with the employee's training and
experience. . . ."  Pennsyl v. Catalytic, Inc., Case No.
83-ERA-2, Sec. Dec., Jan. 13, 1984, slip op. at 6-7; accord
Sartain v. Bechtel Constructors, Case No. 87-ERA-37, Final
Dec. and Order, Feb. 22, 1991, slip op. at 8.  This case presents
the analogous issue whether the CAA protects an employee s work
refusal that is based on a good faith, reasonable belief that
doing the work would be unsafe or unhealthful.     Crow refused to work on a piece of refrigeration equipment
because he believed it would be against the law to repair the
equipment without having the proper certification, which he
lacked.  T. 57. 58, 63.  A vendor of refrigeration equipment told
Crow that whereas it was permissible to purchase equipment under
the certification of another person, it was not acceptable to
work on the equipment without one's own certification.  T. 28.  A
second vendor agreed and showed Crow an EPA document supporting
that view.  T. 38-40; 57.[1]    
     Under the EPA regulation, it would have been unlawful for
Crow to work on equipment containing ozone-depleting compounds
since he lacked the proper certification.  Crow was justified in
assuming that the EPA acted in furtherance of public safety and
health in promulgating the certification rule.  Therefore, Crow s
refusal to violate the certification regulation is protected
under the CAA.
     I agree with the ALJ's conclusion that Noble Roman's
violated the CAA when it discharged Crow.  R. D. and O. at 10.  I
adopt the ALJ s discussion of the remedies to which Crow is
entitled, R. D. and O. at 10-12, with one modification that I
explain below.
     The CAA permits the Secretary to order violators to pay
compensatory damages to the victims of their discriminatory acts.
42 U.S.C. 7622(b)(2)(B)(ii).  In order to recover compensatory
damages, a complainant needs to show that he experienced mental
pain and suffering and that the unlawful discharge caused the
pain and suffering.  Blackburn v. Martin, 982 F.2d 125,
131 (4th 
[PAGE 3]
Cir. 1992) (under ERA employee protection provision). 
     Crow worked for Noble Roman's and a predecessor company for
almost ten years, T. 51, and had no advance warning of his
discharge.  T. 70.  After his discharge, Crow could not afford
his own health insurance and received food stamps for a period. 
T. 70, 77.  He testified that he had very little money and "it
was pretty hard."  T. 77.
     The ALJ recommended that Noble Roman's pay as compensatory
damages "any reasonable medical costs that normally would have
been covered under the Respondent's health insurance coverage
from the time of [Crow's] discharge until his reinstatement to
employment and to insurance coverage."  R. D. and O. at 12."
T. 77.  But Noble Roman s is required to pay those medical costs
as part of reinstating Crow to his former position, together with
its conditions and privileges, such as health insurance
coverage.[2] 
     Crow s testimony was sufficient to establish that he is
entitled to compensatory damages.  I shall order payment of
$10,000 in compensatory damages.  See Smith v. Littenberg,
Case No. 92-ERA-52, Sec. Dec., Sept. 9, 1995, slip op. at 7,
appeal docketed, Littenberg v. United States Dep t of
Labor, No. 95-70725 (9th Cir. Sept. 21, 1995) (where complainant
had secured a higher paying job, $10,000 for mental and emotional stress
because of discharge); DeFord v. Tennessee Valley
Authority, Case No. 81-ERA-1, Sec. Dec., Apr. 30, 1984, slip
op. at 4 ($10,000 for emotional stress and damage to reputation
because of demotion); McCuistion v. Tennessee Valley
Authority, Case No. 89-ERA-6, Sec. Dec., Nov. 13, 1991,
slip op. at 21-22 ($10,000 for emotional distress because of harassment,
blacklisting, and discharge). 
                                   ORDER
     Respondent shall:
     1. Reinstate Complainant to his former or an equivalent
position and to all the terms, conditions, and privileges of his
employment, including but not limited to vacation pay and health
care benefits.
     2. Upon reinstatement of Complainant, afford him a
sufficient opportunity, not to exceed one calendar year from the
date of his reinstatement, to obtain his EPA certification, the
cost of which shall be reimbursed by Respondent.
     3. Expunge from Complainant s personnel record any reference
to his unlawful discharge on January 4, 1995.
     4. Pay Complainant back wages from January 4, 1995 through
reinstatement calculated by subtracting from his former annualsalary ($34,899.88) any wages earned from other employment during
that period.
     5. Pay Complainant compensatory damages in the amount of
$10,000.  

[PAGE 4]
     6. Pay to Complainant's attorney all fees and costs
reasonably incurred in bringing this complaint.  Complainant's
attorney shall have 15 days from the date of this Order to submit
an itemized petition setting forth the fees and costs. 
Respondent shall have 30 days from the date of this order to
submit any response.  Submissions shall be made to David O'Brien,
Acting Director, Office of Administrative Appeals, Room S-4309,
200 Constitution Ave., N.W., Washington, D.C. 20210.  A
supplemental Decision and Order will set forth the amount of fees
and costs that Respondent shall pay.
     SO ORDERED.

                              ROBERT B. REICH
                              Secretary of Labor


Washington, D.C. 






[ENDNOTES]
           
[1] 
  The vendors gave Crow an EPA document, Stratospheric Ozone
Protection, Final Rule Summary, Complying with the Refrigerant
Recycling Rule, which supports the view that a technician was
required to be certified to work on refrigeration equipment after
November 14, 1994.  CX 5; T. 75.   

[2] 
  Should Crow decline the offer of reinstatement, Noble Roman s
will be required to reimburse him for medical costs as part of
his back pay award, since he would not have incurred such costs
but for the unlawful discharge.