Date: April 5, 1996
Case No.: 94-CAA-0004
In the Matter of
RICHARD HOFFMAN
Complainant
v.
W. MAX BOSSERT
Respondent
RECOMMENDED DECISION AND ORDER UPON REMAND
The Secretary of Labor issued a Decision and Order on
September 19, 1995 which remanded the case to establish the
amount of back pay due to Claimant and the amount of costs and
attorney's fees to be recovered by Claimant's attorney. By Order
dated February 29, 1996, I directed the parties to brief the
issues on remand. Briefs have been received from both parties.
I. Back Pay Due Claimant
Although the Secretary found that Respondents did not have a
legitimate reason for laying off Claimant on August 13, 1993, the
Secretary indicated that Respondents may have legitimately laid
off Claimant at some point after August 13, 1993. Thus, the
Secretary ordered that I take evidence to determine whether
Claimant could have been legitimately laid off by Respondents
after August 13, 1993 due to the fluctuating nature of
Respondent's business. I have reviewed the file, together with
the parties recent briefs, and I find that Claimant was
legitimately in a laid off status on August 15, 1993 due to lack
of work. Specifically, Respondent's need for roofers dwindled
after August 13, 1993 which is evidenced by a declining work
force of fifteen workers to eight roofers on September 15, 1993.
(TR 152). Although some of the workers quit, Respondent laid off
three other employees on August 15, 1993, and two more employees
of Respondent did not work after August 22, 1993. (TR 267-270).
Further, Respondent did not replace any of
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these workers. Thus, it is both reasonable and logical that
Claimant would have been laid off either on August 15th or August
22nd due to the lack of work, declining work force, and
Claimant's low seniority. See prior Recommended Decision
and Order. Accordingly, Claimant is entitled to back pay for one
day, August 13, 1993,[1] in the amount of $175.20 ($21.90 an
hour X 8 hours) along with prejudgment interest at the rate
specified in 26 U.S.C. §6621 (1988).
In addition, Claimant requests $800.00 in back pay for the
asbestos certification that Respondent provided to its workers in
late August of 1993. However, because Claimant was legitimately
laid off on August 15, 1993, Claimant is not entitled to receive
the asbestos certification as the other employees did who were
working for Respondent at that time. Further, I note that
Claimant would not have received the $800.00 in cash even if he
had not been laid off. At most, Claimant would have obtained an
asbestos certification at Respondent's expense. Respondent has
agreed that it will pay for Claimant to obtain an asbestos
certification upon reinstatement. Thus, I find that this is what
Claimant would have received had he not been laid off, and he is
not entitled to double recovery by receiving the certification
and being paid the cost of the certification.
Finally, Claimant requests post hearing back pay from June
22, 1995 to the present because he is no longer eligible for
worker's compensation from his work related injury in June of
1993.[2] Claimant contends that he is entitled to additional
back pay from the date of the stipulation, June 22, 1995, until
he is recalled to work by Respondent because if he had not been
unlawfully discharged, he would have returned to work for
Respondents by at least that date at an rate equal to or greater
than his average weekly wage at the time he was laid off in
November of 1993.
I find that Claimant is not entitled to back pay as of June
22, 1995 because Claimant was legitimately in a laid off status
in November 1993 due to lack of work. Further, although Claimant
was injured previously and underwent surgery in September of
1993, Claimant was able to return to work for Respondent from
October 21, 1993 until November 27, 1993 when he was laid off
again. It appears that Claimant has not made himself available
for reinstatement with Respondent since that time and was working
in other employment from June through November of 1995.
Alternatively, I note that Respondent's business involved
seasonal work, and that Claimant would not have worked
continuously from June 1995 until November of 1995 based on the
nature of Respondent's business. Specifically, Respondent's work
force
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decreased from June of 1995 until September of 1995 due to lack
of work and subsequent lay offs, and that Claimant was not
certified to work on the Carlisle Rubber roof job that was
ongoing during those months. Consequently, I find that Claimant
is not entitled to post hearing back pay (from June 22, 1995 and
forward) as a result of his termination of his worker's
compensation benefits.
II. Costs and Attorneys' Fees A successful Claimant is allowed to recover the costs and
attorney's fees reasonably incurred in a successful action
under the employee protection provisions of the CAA and CERCLA.
42 U.S.C. §7622(2)(B) and 42 U.S.C. §9610(c). The
Secretary's Order remanded this case, in part, to resolve a
dispute over the amount of the costs and attorneys' fees
requested by Claimant. As I noted in my prior Recommended
Decision and Order dated December 27, 1994, Respondent argues
that the costs and fees of Claimant's counsel are unnecessarily
high and unreasonable. Specifically, Claimant's counsel was
requesting $38,821.25 in fees and costs when Claimant was seeking
$2,097.00 in back pay at the initial proceeding before me. Now
these costs and fees have increased to $40,727.86 and Claimant is
seeking back pay of $7,761.72.
In it defense, Claimant's counsel contends that the fees are
not out of line with attorney fee awards made by the Secretary in
cases brought under the employee protection provisions of CAA and
CERCLA. Further, Claimant's counsel argues that the denial of
such reasonable costs and attorneys' fees will further encourage
employers to flaunt the law and punish employees who report
environmental violations and concerns. However, as Respondent
reports, Courts have stated that the primary purpose of the
employee protection provisions are to ensure that violations of
the law are reported. SeeDonovan v. R.D. Anderson
Construction Co., Inc., 552 F.Supp. 249, 251 (1982). In this
case, the asbestos was reported to the proper agencies by
Respondent prior to their knowledge of Claimant's activities.
Therefore, the purpose and intent behind the employee protection
provisions of the environmental laws have been complied with in
this case.
I agree with Respondent and feel that it is an attorney
injustice to expend $40,000 to pursue a claim of $7,761.72, and
that the fees are unreasonable and excessive. Accordingly, I
award $5,000.00 in attorneys' fees to Claimant's counsel. My
decision to lower the attorneys' fees are based on legal justice
and common sense practice to avoid excess expenditure, and that
attorneys should keep their fees within a reasonable range. I
feel that Claimant's attorneys expended much more time and effort
than was
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required in this case, and that the case was unnecessarily
complicated and confused by their actions. I believe that it is
an attorney's job to simplify and resolve issues not to
complicate and burden the court. Although Claimant's attorneys
contend that they have significant experience in handling
environmental and occupational claims, I note that most of the
attorneys's fees appear to be investigating, discussing, or
copying the rules concerning asbestos and roofing; however,
asbestos on the roof was never really an issue in this case. The
only real issue was whether Claimant engaged in protected
activity under the Acts. Further, although Claimant's counsel
contend that they are charging a lower rate for their services,
this does not justify a large amount of attorneys' fees in such a
nominal damage case. Further, to show an act of goodwill,
Claimant's counsel reports that one of the attorney's services
were not charged; however, I do not understand why three
attorneys were needed to pursue this claim especially if they had
significant experience in environmental cases.
Further, although I believe that Claimant's counsel expended
more "costs" than warranted in this case, I authorize payment
thereof since such expenses were "out of pocket", and Claimant's
counsel credibility, therefore, is not questioned. Further,
recovery of these costs is consistent with prior Secretary
Decisions awarding costs for such expenses as typing,
photocopying, mailing, telegrams, long distance phone calls, and
the like. SeeJohnson v. Bechtel Construction Co.,
95-ERA-0011 (September 29, 1995). Thus, I find that Claimant's
counsel is entitled to costs of $5,585.36 ($5,169.75 from
original petition plus $415.61 from the supplemental petition).
RECOMMENDED ORDER
For the reasons stated above, Claimant is entitled to back
pay of $175.20 and prejudgment interest on that back pay at the
rate specified in 26 U.S.C. §6621 (1988). Claimant's
counsel is entitled to costs of $5,585.36 and attorneys' fees of
$5,000.
FRANK D. MARDEN
Administrative Law Judge
Dated: April 5, 1996
Camden, NJ
FDM/td
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NOTICE: This Recommended Decision and Order and the
administrative file in this matter will be forwarded for review
by the Secretary of Labor to the Office of Administrative
Appeals, U.S. Department of Labor, Room S-4309, Frances Perkins
Building, 200 Constitution Ave., NW, Washington, DC 20210. The
Office of Administrative Appeals has the responsibility to advise
and assist the Secretary in the preparation and issuance of final
decisions in employee protection cases adjudicated under the
regulations at 29 C.F.R. Parts 24 and 1978. See 55 Fed.
Reg. 13250 (1990).
[ENDNOTES]
[1] I note that August 14, 1993 was a Sunday which is a non-work
day.
[2] Since September 22, 1993, Claimant had been receiving
worker's compensation payments, and on June 22, 1993, the parties
entered a stipulation of facts and an Order was issued by a
Workers' Compensation Judge which terminated the payments as of
June 22, 1995. The parties stipulated that Claimant had fully
recovered from his work injury and could work immediately without
restriction.
