DATE: October 26, 1992
CASE NO. 87-ERA-0044


IN THE MATTER OF

ROY EDWARD NICHOLS,

          COMPLAINANT,

        v.   


BECHTEL CONSTRUCTION, INC.,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                          DECISION AND ORDER OF REMAND
     Before me for review is the Recommended Decision and Order (R.D.
and O.) of the Administrative Law Judge (ALJ) in this case arising
under the employee protection provision of the Energy Reorganization
Act of 1974, as amended (ERA), 42 U.S.C. § 5851 (1988). 
Complainant, a carpenter at a nuclear power facility, alleged that
Respondent retaliated against him for raising safety concerns by
selecting him for layoff.  Respondent appealed the finding of the Area
Director of the Wage and Hour Administration that Respondent violated
the ERA and sought a hearing.
     After a two-day hearing, the ALJ found that Complainant did not
make a prima facie showing that he engaged in protected activity or
that such activity, if protected, motivated Respondent's decision to
lay off Complainant.  R.D. and 0., Conclusions Part C (p.8).1/
 The ALJ recommended denying the complaint.  Id.

     Both Complainant and Respondent filed post-hearing proposed
findings of fact and conclusions of law, which I have considered in
reaching this decision.  Neither party filed a brief before me, as
permitted by the Order Establishing Briefing Schedule. 2/
     Based upon a thorough review of the entire record before the ALJ,
I find that the ALJ's decision is not supported by the evidence and
that Complainant established that he was selected for layoff because of
engaging in protected activities.

[PAGE 2]
     1. The Facts
     Complainant worked as a carpenter for Respondent Bechtel
Construction, Inc., a contractor to Florida Power and Light
Company (FP&L), the licensee of the Turkey Point nuclear power
facility at Florida City, Florida.  At the time at issue here,
Complainant had worked full time for Bechtel 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.  T. 194.
Complainant was a permanent employee, rather than one hired for a


                  
     1/  The R.D. and O. has no page numbers.  Accordingly,
references to the R.D. and 0. are to the section and part, with
the appropriate page number in parentheses.

     2/  By mistake, the ALJ's R.D. and O. and the initial
Secretary's Order Establishing Briefing Schedule were not served
on the correct counsel for Complainant.  Consequently, a
Supplemental Order Concerning Briefing, permitting an additional
period for filing briefs, was served on all counsel.  Counsel for
Complainant submitted a letter indicating that he was unaware of
the R.D. and O. prior to the Supplemental Order, and was unable
to reach his client for authority to submit a brief pursuant to
the Supplemental Order.  No briefs were filed.
specific outage. 3/  T. 194, 371.
     Prior to March 1987, Complainant was assigned to the crew of
foreman Greg Lilge, which worked outside the containment (or
radiologically "hot") area of the facility.  T. 288-289.  That month,
Bechtel needed a great number of craft workers to work in the
containment area because of outages in two units.  T. 339; CX 3. 
Carpenters general foreman Larry Williams decided to form an additional
crew of carpenters to work inside the containment area and named John
Wright the foreman of the new crew. T. 338-340.   Bechtel staffed the
new crew by a transfer from an established crew and by hiring new
workers.  T. 340-341.
     Williams told Lilge to name a carpenter to be transferred to
Wright's new crew, and suggested carpenter Russ Smith.  T. 342. Lilge
asked Williams to take Complainant instead.  Id.  Lilge
testified that for about six months, he had been having "an attitude
problem" with Complainant.  T. 290.  Lilge stated that a few weeks
prior to suggesting Complainant for transfer to Wright's new crew,
Lilge had recommended to Williams that Nichols be laid off in the next
reduction in force.  T. 290; T. 342-343. T. 343.
     Williams told Complainant that Wright's crew needed some
experienced carpenters, and that it was "more than likely" that 
[PAGE 3]
Complainant would return to Lilge's crew when the outage was


                  
     3/ Approximately every 18 months, the nuclear units at
Turkey Point are shut down for refueling, maintenance, and general
repairs.  These periods of shut down are called "outages" and require
an increase in the number of workers.  R.D. and O., Findings of Fact
(p. 2).
over.  T. 345.  At the hearing, however, 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.  T. 344-
346.  Complainant was transferred to Wright's crew in early
March, 1987.  T. 46.
     When Wright's crew began working inside the containment
area, a difference of opinion arose between Complainant and
Wright concerning the proper procedure for surveying and tagging
contaminated tools.  Wright told Complainant that it was not
necessary to wait at the tool box for a Health Physics (HP)
worker to survey and tag the tools, 4/ but rather that it
was acceptable to transport the tools to the HP work station for
the survey.  T. 196-197.  Complainant disagreed and stated that
he believed safety procedures required that the tools be dose
rated and tagged at the tool box.  T. 197, 258.  On occasions
when Complainant waited at the tool box for an HP worker to
survey and tag the tools, Wright showed his disgust and
impatience with Complainant, and said that he wanted Complainant
to get to the work site and start working.  T. 107, 199. 
Complainant acknowledged that because of his size, he was
somewhat slower than other employees in putting on protective
gear, T. 200, but stated that another reason he was slower to
start the assigned work was that he observed the proper
procedures for surveying and


                
     4/ HP workers survey the tools to determine the level
of contamination, and indicate on a tag that the tools have been
surveyed, or "dose rated."   T. 68-69.
tagging tools.  T. 199-200.
     Complainant told Laborer General Foreman Williams that he
had a problem with the way Wright said to handle the tools, and
Williams told Complainant he would check into it.  T. 201.
Williams raised the issue with Wright, who confronted
Complainant, asked if Complainant had a problem with procedures
concerning tools, and advised Complainant to come to Wright first

[PAGE 4]
with any such problems.  T. 99-100, 202.  Complainant indicated
that he already had come to Wright about the issue.  T. 202-203.
     Ultimately, HP shift supervisor Hicks resolved the issue of
where to survey and tag the tools. 5/  Hicks told Wright
that Complainant was correct about where the tools had to be
surveyed, and Wright still indicated that he believed that
surveying the tools at the tool box caused too much delay.  CX 5
at 10, 22. Wright capitulated, however, and told his crew that
they had to have their tools surveyed and tagged at the tool box,
T. 209-210, as Complainant maintained all along.
     Complainant testified that after members of another crew of
carpenters, headed by foreman Dave Trantham, were caught
violating the tool survey safety procedure, a certain carpenter
exhibited offensive behavior toward Complainant in the lunchroom.
T. 203-206.  Wright observed the offensive behavior on several
occasions and said words to the effect that if Complainant did


                 
5/ The testimony revealed that various health physics
supervisors differed on whether it was acceptable to transport
the tools to the HP station before surveying and tagging them. 
See, e.g., CX 5 at 8-9.
not like it, he could quit.  T. 58-59, 205.
     Wright testified that Complainant was slow in getting
dressed out in the required protective gear and stretched out the
work by working slowly on some assignments.  T. 89-92.  Wright
believed that Complainant had "slacked off" recently and
exhibited a poor attitude.  T. 89.  Notwithstanding his
disappointment in Complainant's performance, Wright did not
inform Complainant that his work was too slow, T. 107-108, or
report Complainant's allegedly slow performance to Wright's
superiors, T. 111-112, except for once mentioning to Williams
that Complainant was slow in getting dressed and ready for work
in the morning.  T. 120.
    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. 6/  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 an ongoing
reduction in force.  T. 366-367.  Wright initially selected a
worker who had been absent from work, but then changed his mind
and selected Complainant.  T. 366-367, 461-462.  When Wright
informed Williams that Complainant would be the first worker laid
off from the crew, Williams asked Wright if he was sure about the
choice.  T. 367.  Wright testified that he chose Complainant 
[PAGE 5]
because of slow work performance and stretching out


               
     6/ It is undisputed that Bechtel does not use
seniority in layoffs.  Complainant acknowledged that the foreman
has discretion to choose which workers to lay off.  T. 208.
jobs, and a belief that Wright could get more work out of other
crew members.  T. 89, 367.  During the months following
Complainant's 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.
     After Complainant was laid off, he asked Williams the
reason. Williams indicated that Complainant had always been a
good worker, and was laid off at John Wright's discretion because
Wright believed he could work better with the other carpenters on
the crew.  T. 215-216, 369.
     Complainant testified that the only time he ever
intentionally stretched out a job was when his foreman directed
him to do so.  T. 210-211.  Carpenters Lawrence Kippenhan and
Paul Ramsdale, who worked on the same crew as Complainant during
the Spring 1987 outage, T. 122, 162, testified that Complainant
did his work correctly and according to procedures, and did not
stretch out jobs, work slowly, or exhibit a poor attitude toward
work or his foreman.  T. 135, 138, 172-173.  Complainant's
partner, Michael Dean, agreed that Complainant followed
procedures, worked steadily, and got along with his foreman.  T.
279-280.
     Ramsdale testified that, based on working for Bechtel as a
temporary worker during five outages, the temporary and less
experienced workers usually were laid off ahead of more senior,
experienced workers.  T. 175.  However, as the outages ended in
the Spring of 1987, Complainant was laid off from Wright's crew
earlier than other, less experienced workers.  T. 75-77.
     Kippenhan stated that on three occasions in 1987, Wright
directed him to violate established safety procedures.  T. 123-
129.  Ramsdale similarly testified about an occasion in 1987 when
Wright told him to violate safety procedures.  T. 162-165.
Ramsdale thereafter attempted to be the first person in the
containment area so that he could follow the correct safety
procedure at issue.  T. 165-166.
     2.  Analysis
     There is no dispute that Respondent, a contractor to
licensee FP&L, is an employer covered by the ERA, 42 U.S.C.      
§ 5851(a), and Complainant, who worked for Respondent at
FP&L's 
[PAGE 6]
Turkey Point nuclear facility, is a covered employee.
     To make a prima facie case, the complainant in a
whistleblower case must show that he engaged in protected
activity, that he was subjected to adverse action, and that
respondent was aware of the protected activity when it took the
adverse action.  Complainant also must raise the inference that
the protected activity was the likely reason for the adverse
action.  Dartey v. Zack Co. of Chicago, Case No. 82-ERA-2,
Sec. Ord., Apr. 25, 1983, slip op. at 8.
     At the hearing, Bechtel moved for a directed verdict.
Relying upon Brown & Root. Inc. v. Donovan, 747 F.2d 1029
(5th Cir. 1984), Bechtel argued that Complainant did not show
that he engaged in any protected activities because he did not
participate in a Nuclear Regulatory Commission proceeding.
T. 258-262.  In that decision, the Fifth Circuit defined
protected activity as requiring "the employee's contact or
involvement with a competent organ of government . . . ." 
Brown & Root, 747 F.2d at 1036.  The ALJ denied
Respondent's motion. T. 268.
     The ALJ correctly noted that there is no precedent in the
controlling circuit requiring an "external" contact with a
government agency to establish protected activity.  See T.
268. This case arises in the Eleventh Circuit, which has not
ruled on the issue.  The majority of courts that have considered
the question have held or stated, either explicitly or
implicitly, that internal complaints to management are protected
under the whistleblower provision in the ERA.  See
Jones v. Tennessee Valley Authority, 948 F.2d 258,
264 (6th Cir. 1991) (explicit); Couty v. Dole, 886 F.2d
147 (8th Cir. 1989) (implicit); Kansas Gas & Elec. Co.
v. Brock, 780 F.2d 1505, 1513 (10th Cir. 1985) (explicit),
cert. denied, 478 U.S. 1011 (1986); Machowiak v.
University Nuclear Systems. Inc., 735 F.2d 1159, 1163 (9th
Cir. 1984) (explicit); Consolidated Edison Co. v. Donovan,
673 F.2d 61 (2d Cir. 1982) (implicit).
    I continue to be persuaded that reporting violations
internally is a protected activity and that Machowiak and
Kansas Gas & Elec., rather than Brown & Root,
set forth the appropriate resolution of this issue.  For the
reasons set forth more fully in Goldstein v. Ebasco
Constructors. Inc., Case No. 86-ERA-36, Sec. Dec., Apr. 7,
1992, slip op. at 5-10, appeal docketed, No.
92-4567 (5th Cir. June 1, 1992), and Willy v. The Coastal
Corp., Case No. 85-CAA-1, Sec. Dec., June 4, 1987, slip op. at
3-4, 8, I decline to follow the Brown & Root decision, as
the ALJ stated.
     The ALJ found, however, R.D. and O., Conclusions Part B (p.
7), that Complainant's "mere questioning of the correct method in 
[PAGE 7]
which to handle tools" was not protected activity under the ERA. I
disagree.  The whistleblower provision of the ERA and similar
statutory provisions "share a broad, remedial purpose of
protecting workers from retaliation based on concerns for safety
and quality," Machowiak, 735 F.2d at 1163, and consequently
"a narrow, hypertechnical reading of the [ERA's whistleblower
provision] will do little to effect the statute's aim of
protection."  Kansas Gas & Elec., 780 F.2d at 1512.  See
also  Hill and Ottney v. Tennessee Valley Authority,
Case Nos. 87-ERA-23 and 87-ERA-24, Dec. and Ord. of Rem., May 24,
1989, slip op. at 4.
     Complainant questioned his foreman, Wright, about the correct
safety procedure for surveying and tagging tools, and also asked
Wright's superior, laborer general foreman Williams, about the
issue.  I find that Complainant's questioning of the safety
procedure Wright used was tantamount to a complaint that the
correct safety procedure was not being observed. Complainant's
oral complaints to foremen Wright and Williams were protected
activity under the ERA.  See Dysert v. Westinqhouse
Electric Corp., Case No. 86-ERA-39, Final Dec. and Ord., Oct.
30, 1991, slip op. at 1-3 (employee's complaints to team leader
about procedures used in testing instruments is protected internal
complaint under the ERA); see also Wagoner v. Technical
Products, Inc., Case No. 87-TSC-4, Final Dec. and Ord., Nov.
20, 1990, slip op. at 9-12 (internal oral complaints of warehouse
foreman protected under analogous whistleblower provision of the
Toxic Substances Control Act, 15 U.S.C. § 2622).
     Complainant alleged as adverse actions both the offensive
behavior directed toward him in the lunchroom, and his selection
for layoff.  Complainant asserted that the lunchroom antics were
intended to provoke him either to quit his job, or to get in a
fight and therefore be subject to discharge.  The ALJ found that
the person accused of engaging in the offensive behavior had a
longstanding reputation for engaging in such behavior, that the
lunchroom incidents had no role in Bechtel's selecting Complainant
for layoff, and therefore that the rude behavior did not
constitute adverse action.  R.D. and O., Conclusions Part C
(p. 8-9).  The record evidence supports the ALJ's finding on this 
point and I adopt it.  Clearly, however, the layoff was an
adverse action against Complainant, and therefore he has
established the second element of a prima facie case.  See
Emory v. North Bros. Co., Case No. 86-ERA-7, Final
Ord. of Dis., May 14, 1987, adopting ALJ Dec. and Ord., Jan. 7,
1987, slip op. at 10 (inclusion in a reduction in force
constitutes adverse action).
     Complainant also showed that Bechtel was aware of his
protected activities when it chose to lay him off.  Complainant

[PAGE 8]
made his first complaint about a safety procedure to Wright, who
knew that Complainant also raised the safety concern with
Wright's superior, Williams.  Wright determined that Complainant
would be laid off first.
     In making a prima facie case, temporal proximity between the
protected activities and the adverse action may be sufficient to
establish the inference that the protected activity was the
motivation for the adverse action.  Less than two months elapsed
between the time Complainant questioned Wright and Williams about
safety procedures and Complainant's layoff. 7/  In view of
the short period of time, I find that Complainant introduced
evidence sufficient to raise an inference that his protected
activities motivated his being selected for layoff.  See
Goldstein, slip op. at 11-12 (causation established where
seven or eight months elapsed between protected activity and
adverse action); see also Couty v. Dole, 886 F.2d
147, 148 (8th Cir. 1989)  (temporal proximity sufficient as a
matter of law to establish final element in a prima facie case). 
Thus, I find that Complainant made a prima facie case that
Bechtel violated the ERA.
     Once Complainant established a prima facie case, the burden
shifted to Respondent to articulate legitimate, nondiscriminatory
reasons for the adverse action, Dartey, slip op. at 8, and
Bechtel did so.  Wright testified that Complainant worked slowly
on some assiqnments, did not exhibit the same enthusiasm he once


                   
7/ Complainant began to work for Wright shortly after
March 1, 1987, soon complained about the safety procedure to
Wright and Williams, and was laid off effective April 30, 1987.
had, and that the other members of the crew were easier to work
with.  T. 89-92.
     Complainant had the ultimate burden of persuading that the
reasons articulated by PG&E were pretextual, either by showing
that the unlawful reason more likely motivated PG&E or by showing
that the proffered explanation is unworthy of credence. 
Dartey, slip op. at 8.  I examine below the credibility of
the proffered reasons for selecting Complainant for layoff.
     Of the witnesses who testified about Complainant's job
performance as a member of Wright's crew in March and April,
1987, only foremen Wright and Trantham stated that Complainant
was a slow worker who exhibited a poor attitude. 8/ 
Significantly, Wright did not discuss Complainant's slow work
performance either with Complainant or with Wright's superiors,
except for once mentioning to general foreman Williams that 
[PAGE 9]
Complainant was slow to get started working in the morning.  One
reason for Complainant's slowness, of course, was his insisting
on observing the correct procedure for surveying tools, which
sometimes involved waiting for a HP worker to come to the tool
box.  Wright's preferred method of having the tools surveyed at



                   
     8/ Complainant's former foreman, Greg Lilge, and members of
Lilge's crew testified that Complainant sometimes questioned
Lilge's supervision, see, e.g., T. 314 (Lilge), 319
(Lilge's brother-in-law, Joseph Davis), and exhibited a change in
attitude about his work, T. 330 (Richard Dyke).  This testimony
concerns Lilge's decision to recommend Complainant for transfer
to Wright's crew when it was formed.  Complainant has not alleged
that the transfer constituted adverse action.  See CX 3
(complaint to Department of Labor).  The testimony of these
witnesses is not relevant to Complainant's performance as a
member of Wright's crew after the transfer.
the HP work station, while quicker, ultimately was rejected by HP
supervisor Hicks.  Thus, any slowness attributed to observing the
correct safety procedure was not a legitimate basis for selecting
Complainant for layoff.
     Foreman Trantham, whose crew worked in the containment area
at the same time as Wright's crew, testified that he observed
Complainant working slowly on one occasion, T. 427, and that in
his opinion, Complainant was slow to "dress out" in protective
gear, T. 428.  Trantham admitted that the "tight" dressing area
often contained about 50 carpenters at a time and that the
workers occasionally had to wait for clothing in their size. T.
438-439.
     Three other witnesses, crew members Kippenhan, Ramsdale, and
Dean, testified that Complainant was a diligent worker who did
the job, did not work slowly or stretch out jobs, and did not
show any disrespect for his superiors or a poor attitude about
work.  The ALJ neither mentioned the testimony of these coworkers
nor judged their credibility.  Their testimony undermines the
ALJ's finding, R.D. and O., Conclusions Part C (p. 8), that
Complainant did not get along with the carpenters in Wright's
crew; three of the six other carpenters in the crew indicated
that they got along fine with Complainant.  See T. 139,
173, 279-280.
     Wright's and Trantham's testimony concerning Complainant's
allegedly slow work contrasts sharply with that in Emory,
ALJ Dec. and Ord., Jan. 7, 1987, slip op. at 3, 9-10, where the

[PAGE 10]
Secretary affirmed that the employer legitimately laid off a
worker who often was late for work without a proper excuse, was
found outside the work area during working hours, routinely
failed to finish his work, exhibited a lackadaisical attitude,
and was found lying down on the job, contrary to company policy.
Here, however, Wright and Trantham together mentioned only three
occasions on which they believed Complainant worked slowly, and
Wright did not deem those occasions worthy of discussion with
either Complainant or Wright's superiors.
     The testimony concerning Complainant's poor attitude toward
his work similarly was unconvincing as a basis for selecting
Complainant first for layoff.  In a case where the Secretary
credited the employer's claim of discharging the complainant
because of poor attitude, the employer established the
complainant's use of profanity and persistent antagonism toward
his dispatcher.  See, e.g., Monteer v. Milky Way
Transport Co., Inc., Case No. 90-STA-9, Final Dec. and
Ord., July 31, 1990, sllp op. at 4-5, appeal filed, No.
91-3027-CV-S-4, (W.D. Mo., S. Div., Jan. 1991).  Similarly, in
Connors v. State Auto Sales, Case No. 86-STA-13, Final
Dec. and Ord., Sept. 11, 1986, adopting ALJ R.D. and O., July 30,
1986, slip op. at 5-6, the Secretary credited poor attitude and
insolence as legitimate reasons for discharging an employee who
affixed to his superior's door an "impudent reply" to the
superior's inquiry about his job performance.
     In this case, the witnesses agreed that Complainant got
along with his superiors.  Indeed, General Foreman Williams
indicated by  his initial reaction to learning that Wright
selected Complainant for layoff that Complaint was generally
considered a fine worker; Williams said, T. 367:  "Are you sure,
John [Wright]?"  And Williams candidly admitted that after the
layoff he told Complainant "there was no problem with your work."
T. 368-369.
     The ALJ found that the safety issue Complainant raised,
concerning the proper place to survey the tools, "would be of
minor concern to the Bechtel foremen," R.D. and O., Conclusions
Part C (p. 6).  That assessment is undercut by the testimony
establishing Wright's preoccupation with getting the work started
quickly.  Wright told Complainant that waiting at the tool box
for an HP worker to survey and tag tools was not necessary,
questioned why it took Complainant so long to enter the
containment area, and told Complainant to hurry up.  T. 197, 199.
Whether or not other Bechtel foremen or workers thought this
safety issue was important, Wright clearly did because it slowed
workers down.  The record reveals that shortly after Complainant
raised a safety issue that would slow the work down somewhat,
Wright selected Complainant as the first of the crew to be laid 
[PAGE 11]
off.
     In addition, Ramsdale and Kippenhan testified that Wright
did not want them to take the time to follow established
procedures and exit the containment area for the purpose of
changing the Radiation Work Permit under which they were working. 
T. 123-129, 162-165.  Their testimony corroborated that
Wright was very concerned with getting work done quickly, even at
the expense of safety procedures.
     Moreover, Wright admittedly was "a little upset" at the fact
that Complainant raised an issue about safety procedures with
Wright's superior, Williams, because Wright instructed
Complainant to come to Wright first.  T. 100.  Under the ERA, an
employer may not, with impunity, hold against an employee his
going over his superior's head, or failing to follow the chain of
command, when the employee raises a safety issue.  See,
e.g., Poque v. United States Dep't of Labor, 940
F.2d 1287, 1290 (9th Cir. 1991).
     Based on a thorough review of all of the record evidence, I
find that Bechtel's proffered reasons for selecting Complainant
as the first carpenter to be laid off from Wright's crew were not
believable, and that Complainant has sustained the burden of
persuasion that the real reason for his selection was his
protected activity.  The record indicates that foreman Wright
placed speed above safety.  It is more believable that Wright
selected Complainant for layoff because of Complainant's
insistence on following a safety procedure that slowed the work
down, than that Wright chose Complainant because of slow work or
poor attitude.  Accordingly, I find that Respondent violated the
ERA when it selected Complainant for layoff.
     In the event that a respondent is found to have violated the
ERA, "the Secretary shall order the person who committed such
violation to (i) take affirmative action to abate the violation,
and (ii) 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).  See generally Wells v. Kansas
Gas & Elec. Co., Case No. 85-ERA-0072, Sec'y Final Dec. and
Ord., Mar. 21, 1991, slip op. at 17.  In addition, "the Secretary
may order such person to provide compensatory damages to the
complainant."  Id. Finally, the Secretary shall assess
costs and expenses, including attorney's fees, reasonably
incurred in bringing the complaint. Id.; DeFord v.
Secretary of Labor, 700 F.2d 281, 288-289, 291 (6th Cir.
1983).
     At the hearing, the ALJ did not receive, or accept into
evidence, records proffered by Respondent that show the hours 
[PAGE 12]
worked by the members of Wright's crew, including Complainant. T.
474-476.  Accordingly, the record does not include evidence
from which to calculate the back pay owed to Complainant. 
Therefore, remand will be necessary so that the record for
damages and any claims for costs and expenses may be established.
                                   ORDER
     Accordingly, Respondent is ORDERED to offer Complainant
reinstatement to the same or a comparable position to which he is
entitled, with comparable pay and benefits, to pay Complainant
the back pay to which he is entitled, and to pay Complainant's
costs and expenses in bringing this complaint, including a
reasonable attorney's fee.  The case is hereby REMANDED to the
ALJ for such further proceedings as may be necessary to establish
Complainant's complete remedy.  The parties and the ALJ are
encouraged to complete the remand proceedings expeditiously.

SO ORDERED.

                                   LYNN MARTIN
                                   Secretary of Labor


Washington, D.C.