Date Issued: JUN 8 1989
Case No.: 88-SWD-3

Chilton D. Williams, Claimant

    v.

TIW Fabrication & Machining,
Inc., Employer

   This matter arises under the provisions of the Solid Waste Disposal Act, as amended, 42 U.S.C. § 6971 (the Act), and the regulations found at 29 C.F.R. § 24.

   After timely notice, a formal hearing of this matter was conducted in Albuquerque, New Mexico. The parties appeared with counsel and were given full opportunity to present evidence, oral argument, and briefs on the issues. This recommended decision follows the termination of the formal hearing and is based upon the entire record.

STATEMENT OF PROCEEDINGS

   The respondent, TIW Fabrication & Machining (TIW), is an ongoing enterprise in Albuquerque, New Mexico. The plaintiff, Chilton D. Williams (Williams) was hired by TIW as a machinist on September 17, 1987.

   Williams was laid-off on May 16, 1988. He filed a complaint with the Secretary of Labor against TIW on June 15, 1988 alleging that TIW had discriminated against him for engaging in protected activity in violation of the Act. An investigation by Labor led it to conclude that Williams was discriminated against by TIW in part because he had engaged in protected activity. TIW made a timely request for a formal hearing on this matter.

ISSUES

   I. Whether Williams was engaged in protected activity under the Act?

   II. Whether TIW discriminated against Williams in violation of the Act?

JURISDICTION

   TIW challenges the jurisdiction of this office to consider this complaint on the grounds that Williams did not engage in "protected activity" as defined by the Act. Assuming organdy that this office has the authority to evaluate the scope of the Secretary's jurisdiction, TIW's argument really contests whether Williams' activities are covered by the Act, and not the jurisdiction of the Secretary over either the Act or such claims in general. TIW's argument will be construed as contesting coverage rather than jurisdiction and will be dealt with below. Additionally, some questions arise as to whether TIW is an employer subject to the implementing regulations.

   The regulation provides that "no employer subject to the provisions of the Federal statue of which these protective provisions are a part..." may discriminate against an employee for engaging in protected activity. 29 C.F.R. § 24.2(a). The instant claim arises out of the solid waste laws. The regulations implementing these laws provide an exempt status for so called small quantity generators. 40 C.F.R. § 261.5(b).

   Based upon the evidence in the record, TIW is a small quantity generator, as defined by 40 C.F.R. § 261.5(a), because it generates less than 100 kilograms of nonacutely hazardous wastes per month. Despite being exempt from most of the Act's requirements, a small quantity generator must still comply with a number of regulations, including the proper treatment or disposal of hazardous wastes because it generates statutorily defined solid waste. 40 C.F.R. § 261.5(g). Because the activities of TIW fall within the definition of a solid waste generator contained within regulations, TIW is an employer for purposes of the whistleblower regulations

STATEMENT OF FACTS

   Williams is a journeyman machinist, who is highly skilled

in his trade by training and experience. Williams has worked as a full-time machinist for TIW twice. His first term of employment with TIW ended when he and the previous Genera Manager, Mr. Bussetti, had a "falling out". (TR at 264). The second time, which gave rise to this dispute, began on September 17, 1987 and resulted in a lay off roughly eight months later on May 16, 1988.

   The majority of TIW's work is fabrication, which may also entail machining. TIW does, however, seek and receive jobs which require only machining. (TR at 273-74). Typically, as a job progresses through the various stages of completion, workers are hired on a short term basis and lay offs occur in the reverse order of hiring--the fabricators, welders and burners, are let go first, and then the painters are laid off. (TR at 273-74). Machinists, especially highly skilled ones, while not exempted from lay offs are hired in a more permanent manner. (TR at 288).

   TIW is a subsidiary of TIW Systems (Systems), which is headquartered in California. Because Systems' work load for TIW varies greatly, averaging about fifty percent of TIW's total business, TIW acts as a job shop--it solicits business from other companies. The inconsistent and uncertain nature of TIW's work load helps to explain the dramatic fluctuations in TIW's work force.

   At TIW, Williams had three supervisors, Messrs. Holguin, McLellan and Sieker. Holguin was the machine shop foreman or lead man and was Williams' immediate supervisor. In addition to machining, Holguin was responsible for directing the efforts of the machinists. It is unclear whether lead men, such as Holguin, had the authority to hire or fire workers under their direction.

   Holguin reported to McLellan, the Production Manager at TIW. McLellan has many duties at TIW which vary from running the company's safety program and overseeing plant maintenance to preparing bids and evaluating how many employees are needed. McLellan had the authority to hire and fire employees, but he conferred with his supervisor, Sieker, on these matters and his decisions were usually made after discussions with Sieker, the General Manager.

   Sieker is the General Manager and Vice President of TIW. As such he is the highest ranking TIW employee in Albuquerque and

has the final say on the hirings and firings at TIW.

   At the time Williams was hired, TIW had a significant amount of work which required precision machining. TIW, having difficulty finding a highly skilled machinist, offered Williams a full time position. Williams was paid $12.50 an hour. This wage was relatively high at TIW where the hourly wages ranged from $5.00 to $15.00, with an average of roughly $8.50.

   There were a number of conditions at the machine shop, which did not exist when Williams first worked for TIW, that he saw and objected to. These conditions ranged from the safety of a number of pieces of equipment to the lack of adequate heat during the winter months. (TR at 171). In addition to these conditions, Williams testified that between January and February 1988 he observed several incidents regarding the handling and disposal of hazardous wastes at TIW that caused him to become concerned not only for his own health and the health of his co- workers, but also for the welfare of the environment.

   TIW's work requires the use of several solvents and cleaners which are listed as hazardous chemicals under the Act's regulations. 40 C.F.R. § 261.33(f). These chemicals are used by TIW primarily for thinning the paint applied to their work and for cleaning up. Despite the fact that most of the chemicals are used up in the manufacturing process, some chemical waste is generated.

   Williams testified that he saw TIW employees flush a cleaning solution, Methyl Ethyl Ketone (MEK), down the toilet on several occasions. Williams also claimed that he saw McLellan go into the shop's lavatory with a bucket of waste MEK and come out with an empty bucket. Additionally, Williams testifies that as he and Sieker watched, an employee dumped a bucket of chemical waste onto the ground around the plant. (TR at 90-96).

   Williams insists that he voiced his concerns about the proper storage and disposal of chemicals to each of his supervisors. He testified that he spoke to Holguin and McLellan about the disposal of MEK in the toilet, to which McLellan replied "'oh a little bit not's going to hurt anything, it goes into the septic tank.'" (TR at 93). He testified further that when he and Sieker witnessed the disposal of chemical waste he questioned Sieker about what had been dumped onto the ground, but

Sieker told him that it was "'none of your damn business.'" (TR at 95). Williams contends that his supervisor's responses to his concerns not only demonstrate TIW's lack of concern for the environment, but also evidence TIW's knowledge of his concerns. (TR at 90-105).

   Between April 19 and May 10, 1988 Williams was on sick leave. During this time he testified that he was diagnosed as having contracted an illness related to the dusty conditions at TIW. After learning that his illness was caused by his working conditions, Williams contacted New Mexico OSHA (OSRA) on April 29, 1988. When OSHA was not receptive to Williams' initial contact with them, so he called the Federal OSHA and told them of his complaints. Due to the prodding of the Federal OSRA, Williams was contacted by OSRA. (TR at 157-61). Williams stated that in addition to informing OSHA about the unsafe and uncomfortable working conditions he told OSHA about TIW's unsound hazardous waste disposal practices. (TIW Motion to Dismiss at Exhibit 2).

   Williams returned to work on May 10, 1988. On Friday May 13, 1988 two OSHA investigators appeared at TIW's facility, informed Sieker that they received a complaint about the working conditions at the facility and that they wanted to be admitted for purposes of an inspection. Sieker denied the two entrance.

   On Monday May 16, 1988 Williams reported to work. When he arrived at work Holguin was not there. Because of standing orders not to begin a project without the direction of a supervisor he was standing idly. Sieker asked him why he was idle and told him that if he could not do any machining that he should at least sweep the floor. Sieker then found a low skill machining task for Williams to perform. (TR at 111-12, 408).

   Later that same day McLellan assigned Williams another job. Williams found an error in the blue prints and asked McLellan to, correct it so that the item would turn out properly. Williams testified that McLellan told him "'I will correct the problem with the print, but you're getting terminated because of all your complaints and bitching' and 'I don't have to listen to all this BS anymore.'" (TR at 113). McLellan admits that he may have said something about Williams' complaining but asserts that the remark must have been made in reference to the blue prints. (TR at 317-18). McLellan's characterization of this event is put

into doubt by the testimony of George Boyce (Boyce), who worked for TIW as a fabrication foreman. Boyce, who had been off for some time including during the OSHA visit and Williams' lay off, asked McLellan where Williams was when he returned to work. Boyce testified that McLellan said that TIW had gotten "'rid of that troublemaker last week.'" (TR at 233).

   Williams contends that TIW's management knew that he was concerned about their hazardous waste practices. He alleges that when OSHA showed up on May 13, TIW suspected that it was Williams who initiated the OSHA investigation. He maintains that because TIW suspected him he was laid off the following business day. As further proof of this he points to the fact that another machinist started working for TIW the same day that he was laid off, and that a third machinist started working for TIW five weeks later.

   Several witnesses testified that TIW's management did indeed suspect that Williams had filed the report with OSHA. McLellan testified that on the day OSHA attempted to inspect TIW's facility he suspected three or four people, including Williams but stated that he felt Holguin was the most likely candidate. (TR at 301-02). John Murphy (Murphy), a welder and mechanic, recalled that he and McLellan had a conversation on this matter about a month after Williams was laid off. Murphy testified that McLellan stated at that time that he knew or strongly suspected Williams of going to OSHA. (Compare TR at 216-17 with TR at 220). Additionally Boyce testified that he had a conversation on May 25 with R.J. Wood and Jim Lane, who were the shop superintendent and the welding foreman at TIW. Boyce testified that these two informed him that Williams was laid off because he had complained to OSHA. (TR at 232-33). Wood testified that no such conversation was held on this matter, but his memory of these events was not vivid. (TR at 447-48).

   TIW asserts that it did not lay Williams off because of his protected activity. TIW maintains that the decision to lay Williams off was made at least four to six weeks prior to May 16. TIW asserts further that this decision was a business decision based solely upon a profits and loses analysis.

   TIW asserts that the decision to lay Williams off had been made well before May 16. McLellan testified that he and Sieker had discussed laying Williams off in early April but that they

agreed to keep him because of the difficulty in finding machinists of Williams' caliber. (TR at 288). He stated further that he had planed to lay Williams off on May 6, but that he forgot to do it. (TR at 314). Sieker agreed that discussions over whether to lay Williams off were held considerably before May 16, but stated that he had to remind McLellan on three or four occasions to do it and that while Williams was on sick leave (April 19 to May 9) they did not want to lay him off because he would have lost his insurance. (TR at 399-401).)

   TIW asserts that it is not unusual that Williams was given no notice of the lay off. In addition to McLellan and Sieker, Mr. Wood testified that TIW's practice has generally been to give laid off employees same day notice. Boyce, however, testified that the general rule, since TIW assumed control of the business, has been to give notice of a lay off on a Monday for the following Friday. (TR at 236 and 253).

   TIW also contends that the level of work for machinists had been too low to retain Williams. In support of this McLellan cited the amount of time Williams spent cleaning up the machine shop. McLellan stated that this type of work is ordinarily done by an unskilled employee earning a lower wage, and the fact that Williams was spending a significant amount of time doing this is clear evidence of a lack of work. As evidence McLellan cited Respondent's Exhibit 18, which for the period from April 3 through May 15 proves that Williams spent roughly 17% of his total working time doing clean up work. (TR at 298 and RX 18).

   Williams asserts that there was a significant amount of work to be done in the machine shop when he was laid off. (TR at 114-211. Additionally, Boyce testified that the level of work in the machine shop was about the same on May 22 as compared to April 13. (TR at 241).

   Lastly, TIW maintains that it was no longer efficient or cost effective to retain a machinist of Williams' qualifications. McLellan testified that the type of machine work that TIW was doing when Williams was laid off was not solely precision. He asserted that a machinist of lower pay and qualifications could competently perform many of the jobs going through the machine shop at that time. He asserted further that because a lower skilled machinist with less of an hourly rate could perform the work that otherwise would go to Williams, TIW chose to lay him

off for economic reasons.

CONCLUSIONS

   COVERAGE

   As a preliminary matter, TIW contends that the definition of protected activity is limited to the conduct described by the Act, and is not as expansive as the definition contained within the Secretary's regulations. Section 24.2 states that the Secretary's regulations are a part of several environmentally based statutes with employee protection provisions, including the Act. The regulation's definition of protected activity is arguably more expansive than the definition contained in the Act. The language employed by the Secretary essentially tracks the language used by a number of other statutes of which the regulation is a part. See eg. 42 U.S.C. § 5851 (an employee is protected under this statute if he has, commenced or testified in a proceeding under the statute or "assisted ... in any other action to carry out the purposes of this chapter.")

   The crux of TIW's argument on this ground is that the regulation is overbroad as it pertains to protected activity under the Act. Because a number of the other statutes define protected activity as the Secretary has, TIW maintains that Congress has implied an intention to provide more limited protection under the Act--expressio unius est exclusio alterius. The validity of the Secretary's regulations are not subject to dispute in this forum. For purposes of this decision, the Secretary's definition is accepted as both lawful and controlling.

   TIW next asserts that jurisdiction is lacking in this claim because Williams did not engage in "protected activity". Williams contends that he complained to OSHA about a number of working conditions at TIW and internally to TIW's management. TIW maintains that neither activity falls within the definition of protected activity.

   With respect to the complaints filed with OSHA, TIW contends first that Williams has not and can not establish that OSHA is charged with the enforcement of solid and hazardous waste disposal laws. TIW charges further that Williams has failed to prove that he complained to OSRA about activities which were

violations of the Act.

   That Williams may have complained to an improper authority is not a controlling consideration in determining whether his activity is protected. Similar employee protection provisions are afforded very liberal interpretations so as to ensure the achievement of ends which Congress has attributed great social value. As discussed above, Williams voiced his various complaints to both Federal and State OSHA authorities. Accordingly, Williams' failure to actually contact the proper authorities is irrelevant for purposes of this claim.

   TIW then points to the fact that Williams failed to testify that he had expressed concerns about TIW's handling of hazardous wastes to OSHA. While it is true that no such allegation was made at trial, the record contains several excerpts of TIW's deposition of Williams. (TIW Motion to Dismiss at Exhibit 2). A fair reading of this deposition indicates that TIW's hazardous waste practices were brought to OSHA's attention. This conclusion is consistent with Williams, characteristic habit of expressing his opinions on all matters he objected to. (See eg. TR at 197, lines 17-23).

   Lastly, TIW asserts that Williams' alleged internal complaints are not only unproved, but are also legally insufficient. With respect to TIW's assertion that Williams' internal complaints are unproved, NLRB precedent indicates that such knowledge is imputed to TIW because Williams testified that he lodged complaints with his direct supervisor Mr. Holguin. Red Line Transfer & Storage Co., Inc., 204 NLRB 116 (1973). This imputed knowledge can be disproved by positive evidence from the supervisor that no such information was communicated to management. Dr. Phillip Megdal, D.D.S., Inc., 267 NLRB 82 (1983). Holguin did not testify and the record does not have any other evidence from Holguin indicating that this information was not transmitted, therefore TIW has failed to adequately disprove the knowledge of complaints with which it is charged.

   There is a split among the circuits concerning the legal sufficiency of complaints lodged internally. The Secretary and the United States Court of Appeals for the Tenth Circuit agree, however, that complaints lodged internally are sufficient for purposes of standing to bring an action under similar employee protection provisions. Kansas City Gas & Electric Company v. Brock, 780 F.2d 1505, 1512-13 (1985). Williams' allegations of

internal complaints are therefor sufficient for purposes of standing.

   DISCRIMINATION

   Generally, in wrongful discharge cases involving protected activity, the burden of persuasion rests initially upon the employee to show that his involvement in protected activity "was a substantial or motivating factor in the discharge." NLRB v. Transportation Management Corporation, 462 U.S. 393, 400 (1983). If this burden of persuasion is carried then the burden shifts to the employer to establish that the same decision would have been reached even if it had not been motivated by a desire to punish the employee for engaging in protected activity. Id. The nexus between the protected activity and the discharge "may be demonstrated by evidence of circumstances that justify an inference of retaliatory motive, such as protected activity closely followed by adverse action." Burris v. United Telephone Company, 638 F.2d 339, 343 (10th Cir. 1982).

   Williams met his burden of persuasion in establishing that he was laid off for engaging in protected activity. With the burden shifted, TIW failed to establish that Williams would have been laid off despite their unlawful motive.

   As discussed above, Williams engaged in protected activity through both his internal complaints to various supervisors and his complaints to OSHA. TIW is charged with the knowledge of Williams' concerns because it failed to adequately rebut the presumption that it knew of Williams' internal complaints to Holguin. Lastly, Williams has sufficiently proven that his protected activity "was a substantial or motivating factor" in TIW's decision.

   The testimony of several witnesses proves that TIW correctly suspected Williams of initiating the OSHA investigation and that he was laid off because of this activity. Murphy's testimony confirms that McLellan believed that it was Williams who complained to OSHA. (TR at 220). Boyce's testimony reveals that it was the opinion of other lower level management personnel that Williams was laid off for going to OSHA with his complaints. (TR at 232-33).

   Both McLellan and Sieker contend that they did not know who complained to OSHA. McLellan does admit, however, that Williams was one of several employees he suspected. Sieker professed to have not given the matter any thought prior to Williams' lay off. Sieker's testimony borders on the absurd, in effect he is asserting that the thought never crossed his mind when the event was freshest, but rather it did at some later date. A more likely scenario, and one more in keeping with his demeanor, is that he figured out that it was Williams, became upset and made sure Williams was laid off.

   Williams claimed to have voiced his concerns about TIW's waste disposal practices to several supervisors including his direct supervisor, Holguin. TIW asserts that it was totally unaware of Williams' concerns. Holguin did not appear. TIW is charged with the knowledge of Williams' complaints because it has not effectively disproved that Holguin did not relay Williams' complaints. Medgal, 267 NLRB 82; Red Line, 204 NLRB 1220. With this knowledge, the most reasonable inference would be that if williams were to go to authorities about working conditions at TIW then he would tell about all of his concerns rather than a select few.

   The circumstances surrounding Williams' lay off suggest an unlawful motive under the Act. The most convincing proof was the proximity of the lay off in relation to the attempted OSHA investigation. Also significant was the fact that the work at TIW was picking up rather than slowing down when Williams was laid off.

   The timing of Williams' lay off can almost stand alone as proof of discrimination. OSHA attempted to inspect TIW's facility on Friday May 13, 1988. The very next business day TIW laid Williams off, effective at the end of that day.

   TIW contends that it had intended to lay Williams off significantly in advance of when it did, but that because of a combination of forgetfulness and Williams' illness they were unable to do so as planed. TIW's assertion is unconvincing. C)n the one hand it asserts that it ran a tight ship which was unable to carry any fat, a business so concerned with profits and losses, that it could not afford to give more than a half days notice to a firing or lay off. On the other hand they assert that they simply forgot to tell Williams not to show up and that when they were in the memorable state of mind again they were concerned

about Williams losing his insurance benefits.

    TIW also maintains that all of its business was on a downswing at that time. As proof of this TIW points to the percentage of Williams' working hours spent cleaning the machine shop. A full analysis of the machine shop's percentage of working hours spent on clean up during all of the months of this information provided by TIW reveals that clean up time was generally declining after the week ending April 3, 1988. (See RX 18). If, as TIW asserted, a high percentage of clean up time reveals only a lack of work then a fair reading of this same information leads to the conclusion that machine shop work was on an upswing when Williams was laid off. (See TR at 298).

   After plaintiffs have established a prima facie case and met their burden of persuasion, the burden shifts to respondents to prove that the same decision would have been reached even without the unlawful motive. Mt. Healthy v. Doyle, 429 U.S. 274, 287 (1977). TIW asserts that efficiency or cost effectiveness mandated a lay off.

   As proof of a need to improve efficiency, TIW points to two factors: first Williams' level of skill with its commensurate but high hourly wage, and; two the decreased demand for precision machining. TIW asserts that at the time Williams was laid off it had two machinists capable of doing precision work, yet there "wasn't hardly any work that would be cost efficient to be done by Mr. Holguin and Mr. Williams." (TR at 311). Additionally, McLellan testified that he did not foresee a change in the nature of the demand for their services. (TR at 343-44).

   As further proof of this McLellan testified as to what work, done by the machine shop, required precision machining. This subjective judgement required not only an ability to interpret blue prints, but also required an intimate knowledge of what work went through the shop. This testimony tended to establish that there was a decrease in precision machining up through Williams' lay off.

   McLellan's review of the overall reduction in precision machining does not, however, directly answer the question of whether this was a trend with an unforeseeable end, this is because he attempted to demonstrate a reduction in demand for a type of service by using production evidence. To point to the

work performed by Pendley as evidence of a reduced demand for precision machining is misleading. Pendley was not qualified to do precision machine work, the quantity of work done by him merely indicates that there was a demand for nonprecision machining. These production figures prove that immediately after the contested lay off, TIW produced less precision machine work, which may or may not reflect a reduction in demand.

   As noted above, McLellan testified that he did not foresee a change in the demand for their precision machining. Yet TIW hired a third machinist, Harry Mangel (Mangel), in late June. TIW considered Mangel to possess machinist credentials equivalent to Williams' and paid him roughly the same hourly wage $12.00, which is about 4% less than Williams' wage.

   While in the abstract TIW was not required to call Williams in as opposed to hiring Mangel, Mangel's hiring raises the question of whether the nature of TIW's production demands changed less than five weeks after Williams' lay off. A review of the contracts worked on by Mangel and when these contracts were won by TIW reveals that rather than a sudden upswing in demand for precision machining, Mangel's hiring tends to reflect a back up in precision machining work.

   For purposes of this analysis Respondent's Exhibits Eight and Eighteen were used and two simplification were made. First, Mangel was assumed to be a perfect substitute for Williams and contracts Mangel worked on are assumed to have been worthy of his skill and salary. Second, segregating work which TIW knew it had when it laid Williams off from work which it asserts it could not expect was based upon when work commenced on a particular contract. This simplification was necessary because TIW did not provide evidence pinpointing when it entered into its various contracts.

   Respondent's Exhibit Eighteen reveals that from the week ending July 3, 1988 to the week ending July 31, 1988, Mangel performed 238 hours of machining on ten separate contracts (2993, 3003, 3024, 3040, 3043, 3045, 3046, 3068, 3069 and 3070). Cross referencing these contracts to Respondent's Exhibit Eight reveals that TIW won six of the ten contracts (2993, 3003, 3024, 3040, 3043 and 3046) on or before the week Williams was laid off. Of the 238 total machining hours Mangel spent 201.5 hours (roughly 85%) working on these six contracts. Additionally, twenty nine

of those 201.5 hours were billed as over time (roughly 14% of his total 238 billable hours). Accordingly, not only has TIW failed to adequately prove that the decision to lay off Williams would have been reached without the unlawful motive, but also the evidence of what Mangel was working on when he was first hired tends to prove that the opposite was the case--TIW laid williams off right around the time when they needed two skilled machinists. I find that Williams' termination was an unlawful retaliation for engaging an a protected activity.

REMEDIES

   The Act provides that when an employer is found to have violated the employee protection provision, the Secretary shall order that employer "to abate the violation as the Secretary of Labor deems appropriate, including, but not limited to, the rehiring or reinstatement of the employee ... to his former position with compensation." 42 U.S.C. § 6971(a). Additionally, the regulations provide that relief may not only take the form of reinstatement "together with the compensation (including back pay), terms, conditions, and privileges of that employment", but also, where appropriate, may take the form of compensatory damages. 29 C.F.R. § 24.6(b)(2).

   The paramount goal in fashioning relief under an employee protection provision is to make the plaintiff as whole as he would have been had the unlawful action not taken place. The general mechanism for achieving this end is reinstatement, and back pay, to the terms, conditions and privileges of that employment. See eg. Boyd v. SCM Allied Paper Co., Inc., 42 FEP Cases 1643, 1653-54 (b. Ind. 1986) (unlawfully discharged supervisor is entitled to reinstatement in view of the absence of evidence of hostility that would prevent such relief).

   Williams seeks roughly $119,000 in lost income. Of this sum, he asserts that $69,000 represents not only past and present wages, but also future earnings, which he seeks in lieu of reinstatement. Additionally, Williams contends that because he has been forced to prematurely draw upon Social Security, he faces reduced Social Security benefits of roughly $40,000. (TR at 42-43).

   Williams offers no concrete reason why the more common remedy--reinstatement, is inadequate. His brief indicates that

"it is [im]possible to speculate whether Mr. Williams would have continued to work at TIW, and if so for how long." (Williams post-hearing brief at 8). Not only is a blanket award of future earnings more speculative in nature than reinstatement, but also such relief overcompensates Williams to the extent that he receives an income without performing any services. Because Williams has failed to provide a satisfactory justification for deviating from the general and less speculative method of relief, the remedy will be fashioned along the more traditional lines of reinstatement plus lost wages, less any offset for income earned.

   Williams also seeks compensatory damages for medical expenses that he and his wife incurred, and for damage to his reputation. The availability of medical expenses will be considered first.

   Williams asserts that he has incurred or will incur $80,000 in medical expenses personally and that his wife has similarly incurred or will incur $40,000 in medical expenses. (TR at 42- 43). In support of his two claims for medical expenses, Williams argues that health insurance for both he and his wife were privileges of employment. (Williams post-hearing brief at 9). However, no medical need for these costs was shown.

   Williams has not made a demand upon the carrier for payment of his family's medical expenses since his lay off. Because Williams is to be reinstated to his prior, or similar position, with all its terms, conditions and privileges, it is uncertain how the insurer would respond to such a claim. Therefore considering an award of such damages at this juncture is premature.

   Williams also seeks relief for damage to his reputation in the amount of $100,000. He testified that he has on occasion overheard talk in restaurants that he is a whistleblower. While this office is not entirely convinced of the existence of such conversations, resolution of this issue is irrelevant because Williams failed to demonstrate that any harm resulted from the idle chatter of other diners. Because Williams performed a civic duty, such gossiping, if it occurred, should serve as a source of pride rather than shame for Williams.

   Lastly, Williams seeks the award of $15,000 for attorney fees incurred in conjunction with this claim. Williams' attorney

(Mr. Surls) is entitled to a reasonable fee for the work he has done, but a fee cannot be awarded without evidence of work performed and the value of those services. Plaintiff will be ordered to submit a motion to this office within twenty days from the date of this order setting forth detailed information justifying his request for relief.

RECOMMENDED ORDER

   It is recommended that the Secretary of Labor issue the following order:

   A. That the respondent, TIW Fabrication and Machining, within thirty days of the date of this order, reinstate the plaintiff, Chilton D. Williams, with all terms, conditions and privileges to his former, or substantially similar position.

   B. That the respondent repay Williams all backpay owed, less an offset for income he has earned.

   C. That the plaintiff provide a detailed motion for reasonable attorney fees incurred in conjunction with this claim within twenty days of the date of this order.

       GEORGE A. FATH
       Administrative Law Judge