In 1990, Complainant filed a complaint under the Acts and 29 C.F.R. Part 24 with the United States Department of Labor ("USDOL"), Employment Standards Administration, Wage and Hour Division, alleging that UNICOR discriminated against him after he complained of environmental hazards. In 1991, Complainant filed another such complaint. Both complaints-were denied. Complainant requested a hearing before the Office of Administrative Law Judges (the "OALJ"). The cases were decided by Judge G. Marvin Bober, who recommended that the complaints be dismissed on the ground that inmates such as Complainant were not "employees" of UNICOR, and thus were not protected by the Acts. Coupar v. Federal Correctional Institution El Reno, OK, Case Nos. 90-TSC-00001, 91-TSC-00003 (December 13, 1991) (ALJX 1). The Secretary of Labor (the "Secretary") has not yet issued a final order in these cases.

   On February 3, 1992, Complainant filed another complaint under the Acts, alleging that after he was transferred to the Terminal Island facility, UNICOR refused to rehire him in retaliation for filing his prior complaints (ALJX 2). On March 18, 1992, the Wage and Hour Division denied the complaint on the ground that inmate workers are not "employees" (ALJX 2). Complainant timely requested a hearing before the OALJ by a telegram dated March 20, 1992 (ALJX 3). The claim was assigned to the undersigned as Case No. 92-TSC-00006.

   On March 4, 1992, Complainant filed a complaint with the United States Department of Justice ("USDOJ"), Office of Professional Responsibility, alleging harassment by Associate Warden Abele in response to Complainant's prior whistleblower complaints and other matters (ALJX 17). Complainant

also wrote a letter to the Secretary's office, asking it to request the USDOJ's Office of Professional Responsibility to investigate the matter (ALJX 17). The Secretary's office apparently referred the letter to the Wage and Hour Division, which treated the letter as a whistleblower complaint arising under the TSCA and denied it on April 14, 1992 (ALJX 17). Complainant timely requested a hearing before the OALJ by a telegram dated April 16, 1992 (ALJX 16). The claim was assigned to the undersigned as Case No. 92-TSC-00008.

   A formal hearing for Case No. 92-TSC-00006 was scheduled before the undersigned for April 21, 1992 (ALJX 4), and then continued to May 13, 1992 (ALJX 9). After Case No. 92-TSC-00008 was received in this office on May 8, 1992, the cases were consolidated for hearing, and the hearing was continued to May 27, 1992 (ALJX 19).

   By letter received on April 14, 1992, Complainant requested the undersigned to issue subpoenas for the attendance of witnesses and the production of documents (ALJX 6; see also ALJX 7, ALJX 11). The USDOL Solicitor's Office, acting on behalf of the Wage and Hour Division, and the Bureau opposed the request (ALJX 12, ALJX 15). On May 8, 1992, the undersigned issued an Order granting Complainant's request in part and allowing him five days from receipt of the Order to demonstrate why subpoenas should be issued for additional material (ALJX 18). Complainant submitted a response, which was received in this office on May 14, 1992, detailing why he considered the additional material to be relevant (ALJX 21). On May 18, 1992, the undersigned denied the request (ALJX 22).

   By motion dated May 16, 1992, and received on May 19, 1992, Complainant requested the undersigned to ask the Court of Appeals for the Ninth Circuit to intervene in this case under Federal Rule of Appellate Procedure 15 (ALJX 23). This unusual motion, which was apparently founded on a misconception of the nature of intervention and the applicability of the Federal Rules of Appellate Procedure, was denied by the undersigned on May 20, 1992 (ALJX 24).

   On May 22, 1992, the Bureau transmitted by facsimile a Motion to Quash the subpoenas that had been issued, and a Motion to Dismiss both complaints (ALJX 25, ALJX 27). Since the motions were transmitted at the end of the afternoon on a Friday, and the following Monday was a Federal holiday (Memorial Day), the motions were essentially received on Tuesday, May 26, 1992, the day before the hearing (see ALJX 28, p. 1). The undersigned denied both motions on May 26, 1992 (ALJX 28).

   The Bureau, which has represented UNICOR in this matter, maintains that the undersigned has no jurisdiction to hear the case or to issue subpoenas (ALJX 27, p. 1). Accordingly, the Bureau was not represented at the hearing, and its employees did not comply with the subpoenas issued to them. As noted in the Order Denying Motion to Quash and Motion to Dismiss (ALJX 28, pp. 3-4), the office of the Bureau's regional counsel induced the undersigned to move the hearing site from the Department of Labor Courtroom in Long Beach, California, to Terminal Island by pleading the need for security. Having done so, the Bureau's counsel then declared at the last minute, in the motions to dismiss and to quash, that the Bureau had power over the prison grounds. Absent permission from the Bureau's director, the undersigned would not be allowed to conduct an "adversarial hearing" there. Despite this threat, the Bureau allowed the undersigned to conduct what it called a "deposition," by taking the testimony of Complainant and of Larry Jewel Glaze, a fellow inmate who had been subpoenaed (ALJ 27, p. 11). This proceeding will be referred to as a hearing. Although no appearance was made on behalf of UNICOR, counsel for the Bureau was present at Terminal Island and reiterated the Bureau's position that the undersigned lacked subject matter jurisdiction and had no authority to hold a hearing inside the prison.

   Despite their criminal status, the undersigned found both Complainant and Larry Jewel Glaze to be credible witnesses. Absent any participation from UNICOR, the following Findings of Fact therefore accept Complainant's and Mr. Glaze's hearing testimony, and Complainant's other statements as noted below, as truthful within the limits of their knowledge. Where they stated a hypothesis, a feeling, or an allegation for which the undersigned could not detect a clear and credible basis, the finding of fact is made in such terms (e.g., where Complainant said he feels he protected himself against retaliatory transfers by maintaining a high profile, it is found that he "feels" this is so, not that it is necessarily true).

   Complainant filed Case No. 90-TSC-00001 when he was incarcerated at the El Reno, Oklahoma FCI, where he worked for UNICOR (Tr.). Complainant had made several (non-whistleblower)

   UNICOR V. OTHER PRISON WORK

"employment," and speaks of "applications for employment" (Id. at para. 2c).

   Inmates are placed on a waiting list "in order of receipt of applications for employment" (Id. at para. 3a). However, inmates with prior UNICOR employment who have transferred from another institution for nondisciplinary reasons are termed "priority transfers" and placed in the top ten percent of the waiting list (Id. at para. 3a.(1)(a)). Inmates with needed skills may be hired ahead of others on the waiting list (Id. at para. 3a.(3)).

    PAY GRADES

   New UNICOR workers are hired at pay grade five (CX 11, para. 3(b)). After completing training, they are promoted to grade four. Id. The highest-paying grade is one. 28 C.F.R. § 345.14. "Priority transfers" (see above) receive consideration for accelerated promotion back to their former grades (CX 11, para. 3a.(1)(a); see 28 C.F.R. § 545.42). UNICOR workers transferring to another FCI institution where they work in the same industry transfer to the same job (Tr.; see 28 C.F.R. § 545.52). If Complainant is now transferred to another prison, he would start at grade four again, because of his May 15, 1992, removal from UNICOR when he was placed in segregation (Tr.).

    WORKING CONDITIONS

   UNICOR controls the manner of inmates' work (Tr.). UNICOR trains the workers, provides their tools, and provides the worksite (Tr.). Inmates are not hired for a set period, but rather for an open-ended term (Tr.). The Associate Warden in charge of industries (formerly referred to as the Superintendent of Industries, or "SOI"), however, may request that an inmate be removed from his UNICOR job (Tr.).

   Inmates receive a pay stub, but are actually paid by posting their wages to their accounts at the prison commissary (Tr.; see 28 C.F.R. § 345.24). They receive vacation pay, overtime pay, longevity pay, and paid holidays (Tr.; 28 C.F.R. §§ 345.19-.21, -.23). No taxes are withheld (Tr.), because UNICOR workers are not taxed on their earnings (ALJX 15, letter from Stephen S. Trottt to William Brock, pp. 5-6). Injured UNICOR workers are covered by a workers' compensation program. 18 U.S.C. § 4126; 28 C.F.R. Part 301.

   At each institution where Complainant has worked for UNICOR, he has reached grade one (the highest pay grade, as

   COMPLAINANT'S REQUEST TO BE REHIRED

   On January 22, 1992, shortly after arriving at Terminal Island, Complainant asked Steven Jenkins, his correctional counselor, to have him placed on the UNICOR waiting list (Tr.). UNICOR's Inmate Program Manual provides that "all inmates transferred administratively for nondisciplinary reasons, and who claim credit as prior workers," are "designated 'priority transfers' and are to be placed in the top ten percent of the . . . waiting list at the time of their applications" (CX.ll, p. 8). As a prior UNICOR worker who had received a nondisciplinary transfer, Complainant expected not only to be placed on the waiting list like any eligible other inmate, but to be placed in the top ten percent under the policy stated above (Tr.).

   THE INCIDENT WITH J.C. JOHNSON

   During the last week of January 1992, Complainant was called in to see J.C. Johnson, his "Unit Manager," after writing a letter to Warden Henry of Terminal Island, complaining of Mr. Jenkins' conduct (Tr.). Mr. Johnson told Complainant that he would have Mr. Jenkins put Complainant on the UNICOR waiting list (Tr.). However, Mr. Johnson added, Complainant might not be hired because of his filings against UNICOR (Tr.). Mr. Johnson also said that the UNICOR facility at Three Rivers was displeased with him (Tr.). At Three Rivers, however, Complainant had accelerated back to first grade, become a leadman, and received good work reports (Tr.).

   After Complainant left Mr. Johnson's office, Larry Jewel Glaze heard Mr. Johnson tell Mr. Jenkins he was tired of Complainant's filing complaints (Tr.). Subsequently, Mr. Jenkins was heard to tell inmates that he wanted to "get rid of" Complainant, and that Complainant was causing problems (Tr.). Shortly after this, on January 31, 1992, Complainant's bedding was burned (Tr.; see also CX 15, CX 16, CX 19). Mr. Glaze feels that adverse action, including a trumped-up charge of passing drugs, has been taken against him because of his readiness to help Complainant in the case at bar (Tr.).

   COMPLAINANT'S SECOND ATTEMPT TO SECURE UNICOR EMPLOYMENT

   On February 3, 1992, Complainant went to UNICOR to seek employment, since Mr. Johnson had told him that his name would be put on the waiting list (Tr.). Complainant was told to see Jesus Delroche, the UNICOR general foreman (Tr.). Mr. Delroche told Complainant he would be given a job in the shear department (Tr.). Complainant mentioned to Mr. Delroche that he had epilepsy (Tr.). Mr. Delroche then telephoned someone; when he returned, he said he could not hire Complainant because of his epilepsy (Tr.). Complainant replied that he worked around machinery at the UNICOR facility at El Reno, the only restriction being that he could not work directly with machinery (Tr.). Mr. Delroche then took Complainant to Robert Diaz, a tool die foreman (Tr.). At Mr. Delroche's urging, Complainant told Mr. Diaz that he was an epileptic (Tr.). After privately conferring with Mr. Delroche, Mr. Diaz told Complainant he would not be hired (Tr.). Mr. Diaz gave no reason for his decision (Tr.).

    COMPLAINANT'S EPILEPSY

   Complainant was diagnosed as epileptic in 1976 by Marvin Piper, M.D. (Tr.). The Social Security Administrative declared Complainant disabled and paid him benefits (Tr.). In the past, Complainant has been prescribed Depakene and Dilantin (Tr.).

Since he suffers unpleasant side effects from Depakene, Complainant currently takes only Dilantin (500 milligrams per day) (Tr.). His last seizure took place in 1988, at the FCI in Bastrop, Texas (Tr.). Epilepsy has never posed a problem for Complainant's UNICOR work (Tr.).

   At present, Complainant sees two-doctors (provided by the prison) for his condition (Tr.). Two months before the hearing, a doctor ordered an electrocardiogram (EKG). The last EKG before that was in 1985 (Tr.). When UNICOR refused to rehire Complainant because of his epilepsy, it did not have him tested for the condition (Tr.). Complainant has the impression that a number of epileptic inmates have worked for UNICOR, including, he thinks, another inmate at Terminal Island itself (Tr.).

   UNICOR'S HIRING OF COMPLAINANT AFTER HE FILED THE COMPLAINT IN THE CASE AT BAR

   The complaint in Case No. 92-TSC-00008 was addressed to the USDOJ Office of Professional Responsibility. Complainant alleged that on March 4, 1992, Associate Warden James Abele had threatened him with a transfer to another prison, largely in retaliation for filing whistleblower complaints (ALJX 17). Mr. Abele heads UNICOR's operations at Terminal Island, and held that position at the time of the March 4 incident (Tr.). Complainant sent what he termed a "courtesy copy" of the complaint to the Secretary office, referencing Case Nos. 90-TSC-00001 and 91-TSC-00003, since Mr. Abele's threats seemed to relate to those cases (Tr.; ALJX 17). However, Complainant did not want to bring

   BACK PAY

   Complainant was turned down for a UNICOR position on February 3, 1992, and was eventually hired on March 27, 1992 (Tr.). He wishes to receive back pay for this period (Tr.).

    MISSED PROMOTION

   In addition, Complainant wishes to receive a promotion to the higher grade(s) he would have received if he had been hired on February 3, 1992 (Tr.).

    COSTS

   Since Respondent did not appear at the hearing and Complainant did, the question arises whether a default judgment in Complainant's favor should be entered.

   The Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges (the "Rules") are applicable to adjudicatory proceedings before the OALJ to the extent the Rules are not inconsistent with rules of special application provided by statute, executive order, or regulation. 29 C.F.R. § 18.1.

Since the regulations regarding whistleblower complaints at 29 C.F.R. Part 24 do not address the matter of default judgments, the Rules apply here.

   The Rules provide that "[a] default decision, under § 18.5(b), may be entered against any party failing, without good cause, to appear at a hearing." 29 C.F.R. § 18.39. Under section 18.5(b), if a respondent does not file an answer within the time provided, the ALJ may "find the facts as alleged in the complaint and . . . enter an initial or final decision containing such findings, appropriate conclusions, and order." 29 C.F.R. § 18.5(b).

   UNICOR did not have good cause to fail to appear. It is thus recommended that a default judgment be entered against UNICOR. However, due to the unusual circumstances of this case, in which the Bureau claims that the hearing was only a "deposition," the undersigned will proceed to fully discuss all aspects of this case and issue a recommended order on that basis.

   Case No. 92-TSC-00008 did not begin as a whistleblower complaint to the USDOL. Instead, Complainant sent a "Formal Complaint," dated March 4, 1992, to the USDOJ Office of Professional Responsibility (ALJX 17). The complaint states that on March 4, 1992, Associate Warden Abele of Terminal Island threatened Complainant with a "transfer [to another prison] over his filing." The complaint then notes that Complainant had filed an administrative action regarding the denial of a job with UNICOR; a case before a United States District Court for the District of Columbia regarding his 1990 transfer to the Lewisburg FCI; a complaint to the General Accounting Office concerning an alleged lack of competitive bidding in the prison's commissary; and Complainant's prior whistleblower complaints. The complaint states that Warden Abele is apparently attempting to hinder Complainant's "exercise of constitutional rights in the case before the Secretary of Labor." Finally, the complaint asks the USDOJ Office of Professional Responsibility to investigate the matter.

   Complainant sent a copy of the complaint to the office of the Secretary with a cover letter dated March 4, 1992, referencing Case Nos. 90-TSC-00001 and 91-TSC-00003 (ALJX 17). He

asked that "the Office of the Secretary of Labor request an investigation as asked for by the Complainant by the Office of Professional Responsibility D[epartment] o[f] J[ustice]." This letter was evidently treated as a whistleblower complaint under 29 C.F.R. § 24.3. On April 14, 1992, the USDOL Wage and Hour Division wrote Complainant regarding his "complaint of March 4, 1992, under the provisions of the Toxic Substances Control Act," in which Complainant alleged "that Associate Warden Abele has threatened further retaliatory action . . . ." The complaint was denied on the ground that prisoners were not employees within the meaning of the TSCA or CAA (ALEX 17).

   One might wonder whether the Complainant's letter to the Secretary should be treated as a whistleblower complaint. The letter not only showed no intent to file such a complaint, but also failed to indicate how an employer had discriminated against Complainant with respect to his employment. Complainant himself did not intend the letter to function as a whistleblower complaint. He later requested a hearing only because he felt that the Wage and Hour Division's denial of what had been construed as a whistleblower complaint affected Case No. 92-TSC-00006.

incorporate the professional responsibility complaint to the USDOJ, and liberally construed it as an attempt to file a whistleblower complaint with the USDOL. For his part, Complainant treated the matter as a whistleblower complaint in his pre-trial brief (CX 1, p. 1). Several threshold questions remain: (1) What employer is involved?; (2) Under what acts is Complainant pursuing his whistleblower complaint?; and (3) What acts of alleged employment discrimination are involved?

   At the time of the alleged adverse action on March 4, 1992, Complainant had not yet been rehired by UNICOR. His pre-trial brief relates that he was working in the Bureau's education department (CX 1, p. 1). Mr. Abele, the alleged harasser, is apparently a Bureau employee, but he is in charge of UNICOR's Terminal Island operation. Thus, the employer involved might be the Bureau instead of UNICOR.

   As for the acts involved, the Wage and Hour Division treated the complaint as one arising under only the TSCA. However, since Complainant alleges that Mr. Abele threatened him because of Complainant's prior complaints under the TSCA and the CAA, the undersigned will construe the complaint as one arising under both Acts.

   The real difficulty arises with reading the complaint as an allegation of employment discrimination. The Acts protect employees only against discharge or other discrimination "with respect to . . . compensation, terms, conditions, or privileges of employment." 15 U.S.C. § 2622; 42 U.S.C. § 7622. There could be no discrimination with regard to UNICOR, because Case No. 92-TSC-00006 already addressed the charge of failure to rehire, and in fact UNICOR rehired Complainant several weeks after the March 4 incident. Rather, the adverse action involved was Mr. Abele's threat to transfer Complainant to another prison. This relates to Complainant's prison environment, not his work. Even if the work related repercussions of such an event are considered, Complainant has not shown that his work for the Bureau would suffer from such a transfer. Consequently, Complainant has neither pled nor proven the retaliatory action necessary to pursue a whistleblower claim. It is therefore recommended that the complaint in Case No. 92-TSC-00008 be dismissed. See 15 U.S.C. § 2622(b)(2)(A); 42 U.S.C. § 7622(b)(2)(A); 24 C.F.R. § 24.6(b)(4).

   In a pre-hearing opposition to Complainant's requests for subpoenas in Case No. 92-TSC-00006, the Bureau argued

that Federal prisoners working for UNICOR are not "employees" within the meaning of the Acts. Thus, the Bureau reasoned, the undersigned did not have subject matter jurisdiction here (ALJX 12). The Bureau renewed its objections to jurisdiction in its pre-hearing Motion to Dismiss (ALJX 26).

a "question of fact to be determined by the administrative law judge." Id. at 1357, 13 BRBS at 692. In the case at bar, one can allege a violation of the Acts by an employer subject to the Acts and yet not have been an "employee" of the employer. Consequently, here as in Ramos, the question of Complainant's employment status is a "question of fact to be determined by the administrative law judge."

   In addition to jurisdiction, another threshold issue here is whether Complainant is protected by the Acts. The whistleblower provisions of the Acts protect only "employees." 15 U.S.C. § 2622 (TSCA); 42 U.S.C. § 7622 (CAA). Both the Bureau, speaking on behalf of UNICOR, and the Wage and Hour Division claim that inmate workers such as Complainant are not "employees" for purposes of applying the Acts.

   Complainant alleges that he has been discriminated against for previously filing whistleblower actions. His first two complaints were decided by Judge G. Marvin Bober, who recommended that the complaints be dismissed on the ground that Complainant was "not an employee within the meaning of either the Clean Air Act or the Toxic Substances Control Act." Coupar v. Federal Correctional Institution El Reno OK, Case. Nos. 90-TSC-00001, 91-TSC-00003 (December 13, 1991), slip op. at p. 6. These complaints are currently pending before the Secretary.

   In its Motion to Dismiss, the Bureau argued that Judge Bober had issued a "final" "trial level judgment in a federal court" which was currently "pending on appeal," and should be accorded res judicata effect here. In particular, the Bureau maintained that jurisdictional issue" of whether UNICOR workers are protected by the Acts' whistleblower provisions (see ALJX 27, Motion to Dismiss, p. 7). In denying the motion, the undersigned noted that this argument was ill-founded because it misconstrued the nature of administrative proceedings before the Office of Administrative Law Judges in whistleblower cases.

   The Acts provide that the Secretary of Labor (the "Secretary") shall investigate each whistleblower

complaint and thereafter issue an order providing relief or dismissing the complaint. 15 U.S.C. § 2622(b)(2)(A); 42 U.S.C. § 7622(b)(2)(A). The Secretary has delegated the authority to hold hearings in such cases to the USDOL Office of Administrative Law Judges. 29 C.F.R. §§ 24.4-.5. After holding a hearing, the administrative law judge issues a recommended decision and transmits it, together with the record, to the Secretary for review. 29 C.F.R. § 24.6(a). The Secretary of Labor then issues a final order. 29 C.F.R. § 24.6(b). Any person aggrieved by the Secretary's order can appeal it to the Court of Appeals for the circuit in which the violation allegedly occurred. 15 U.S.C. § 2622(c); 42 U.S.C. § 7622(c); 29 C.F.R. § 24.7(a).

   Accordingly, Judge Bober's recommended decision is not a final order and is not "on appeal." As the Bureau noted, res judicata, in the sense of an absolute bar to further actions, applies only when a final judgment was issued. Since there is no final judgment here, res judicata cannot apply.

   However, one might still maintain that for purposes of collateral estoppel (issue preclusion), the question remains whether Complainant is collaterally estopped in this action from maintaining that he is an "employee" of UNICOR. For purposes of collateral estoppel effect (as opposed to res judicata), "[a] final judgment 'includes any prior adjudication . . . that is determined to be sufficiently firm to be accorded conclusive effect."' Robi v. Five Platters. Inc., 838 F.2d 318, 327 (9th Cir. 1988) (quoting Restatement (Second) of Judgments § 13 (1982)). Given such a final adjudication, a party who litigated an issue and lost is estopped from litigating the identical issue again in a subsequent action. Robi, 838 F.2d at 326. Factors going to whether a judgment is "sufficiently firm" include whether the parties were fully heard, whether the court supported its decision with a reasoned opinion, and whether the decision was subject to appellate review. Id. at 327. In addition, issue preclusion "should be refused if the decision was avowedly tentative." Luben Industries Inc. v. United States, 707 F.2d 1037, 1040 (9th Cir. 1983) (quoting Restatement (Second) of Judgments, § 13 comment g (1982)).

   Here, Judge Bober supported his decision with a six-page opinion. However, the decision was rendered without the benefit of a formal hearing. Furthermore, the decision will not be subject to appellate review until the Secretary issues a final order. 29 C.F.R. § 24.7. As a recommended decision and order, Judge Bober's decision may be said to be avowedly tentative, in which case

collateral estoppel cannot apply. Luben, 707 F.2d at 1040. The Secretary has stated that an ALJ's recommended decision in a whistleblower case has "no precedential value of its own." Hale v. Baldwin Associates, Case. No. 85-ERA-7, Final Decision and Order (September 29, 1989), 3 Dec. OALJ & OAA 5 at 44 n.1. Given all the above, the undersigned concludes that Judge Bober's recommended decision is not sufficiently firm to be accorded preclusive effect in this proceeding.

   In its Motion to Dismiss, the Bureau contended a memorandum from the USDOJ Office of Legal Counsel, concluding that inmates are not "employees" under the Acts and are thus not protected thereunder, "binds" the undersigned "and requires that this case be dismissed" (ALJX 27, p. 9).

   Executive Order 12146 of July 18, 1979, established the Federal Legal Council, composed of the Attorney General and representatives from various other agencies, including, at least initially, the USDOL. Exec. Order No. 12146, 3 C.F.R. 409 (1980), para. 1-102. The functions of the Council are generally to improve the functioning of Federal legal resources. Id. at para. 1-201. One specific function is to seek resolution of problems "that are beyond the capacity or authority of individual agencies to solve." Id. at paras. 1-203. Paragraph 1-4, titled "Resolution of Interagency Legal Disputes," provides:

1-401. Whenever two or more Executive agencies are unable to resolve a legal dispute between them, including the question of which has jurisdiction to administer a particular program or to regulate a particular activity, each agency is encouraged to submit the dispute to the Attorney General.

1-402. Whenever two or more Executive agencies whose heads serve at the pleasure of the President are unable to resolve such a legal dispute, the agencies shall submit the dispute to the Attorney General prior to proceeding in any court, except where there is specific statutory vesting of responsibility for a resolution elsewhere.

   The memorandum in question, date-stamped September 19, 1988, is from Douglas W. Kmiec, Acting Assistant Attorney General, DOJ Office of Legal Counsel, to Edward S.G. Dennis, Jr., Acting Assistant Attorney General, DOJ Criminal Division (Exhibit 4 to ALJX 26). Mr. Kmiec states that former

Assistant Attorney General Weld requested Assistant Attorney General Markham to have the Federal Legal Council resolve the question of whether Federal inmates are "employees" under the Acts. Mr. Markham referred the question to the USDOJ Office of Legal Counsel, stating that the Federal Legal Council was not authorized to resolve legal disputes submitted to the Attorney General. Rather, he said, interagency disputes were within the Office of Legal Counsel's jurisdiction. Mr. Kmiec's memorandum discusses the issue and concludes that inmates are not "employees" under the Acts.

   Complainant formerly worked for UNICOR, and now claims that UNICOR has retaliated against him in response to prior whistleblower complaints by not hiring him. UNICOR is "a government corporation of the District of Columbia" that was created by statute. 18 U.S.C. § 4121. The statute that established UNICOR repeatedly describes the relationship between inmate workers and UNICOR as "employment." 18 U.S.C. §§ 4122, 4123, 4126. UNICOR's own Inmate Program Manual, under the heading of "Recruitment and Hiring Practices," also refers to inmates' work as being "employment" (CX 11).

    STATUTORY LANGUAGE

   "The starting point for [the] interpretation of a statute is always its language." Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739, 109 S.Ct. 2166, 2172 (1989). Where a Federal statute used the term "employee" without defining it, the United States Supreme Court noted that "'[w]here Congress uses terms that have accumulated settled meaning under . . . the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms.' [Citations.]" Id. Accordingly, "when

   APPLICABILITY TO INMATES OF TRADITIONAL TESTS FOR EMPLOYMENT STATUS

    THE RIGHT TO CONTROL

   The right to control the work is the most important factor in establishing an employment relationship. Reid, 490 U.S. at 751, 109 S.Ct. at 2178. This factor might seem irrelevant here because Complainant is necessarily under the control of prison officials. However, in the context of an employment analysis, "control" addresses whether the hiring party regulates "the manner and means by which the product is accomplished." Id. In Baker, the Ninth Circuit applied this factor in finding that the inmate was an "employee" for purposes of stating a claim under Title VII. Baker, 859 F.2d at 128-29.

   Here, UNICOR had the right to and did closely regulate the manner in which Complainant accomplished his work. It is not simply a matter of telling inmates to manufacture helmets or lockers and letting them decide how and-when to do it. UNICOR has set up a normal employment environment in this respect. The undersigned thus concludes that this factor points toward Complainant's having been UNICOR's "employee" within the meaning of the Acts.

   OTHER ELEMENTS OF CONTROL AND SUPERVISION

   UNICOR supplied the instrumentalities and tools Complainant used, as well as the work site. Complainant had no role in hiring and paying assistants that is apparent from the record. He evidently had little or no discretion over when and how long to work, as he worked a standard 37.5 hour week. Although it is unclear from the record whether UNICOR had the power to assign additional projects to Complainant, other factors (e.g., UNICOR's control over the work) suggest it would. All these factors point to the existence of an employer-employee relationship between UNICOR and Complainant.

   NATURE OF THE HIRING PARTY

   UNICOR is in business, specifically the business of manufacturing various items. It is a government

corporation (Federal Prison Industries, Inc.), established by 28 U.S.C. § 4121. The work Complainant performed at Terminal Island and elsewhere was part of UNICOR's regular business, e.g., making chairs at Three Rivers or lockers at Terminal Island. These factors point to the existence of an employer-employee relationship between UNICOR and Complainant.

   UNICOR's method of obtaining inmate labor is also worthy of note. UNICOR "recruits" inmates, places them on a waiting list, and gives them employment interviews, as in a "normal" employment situation and unlike a forced labor, non-"employment" situation.

   NATURE OF THE WORK

   The skill required to perform Complainant's jobs seems to have varied, judging from his work history. This element points neither toward nor away from "employee" status. The record does not document whether the occupations in which Complainant engaged were usually done under an employer's direction in the locality. However, the work often involved manufacturing of chairs, helmets, or lockers. The undersigned takes judicial notice that manufacturing of such products is often, if not usually, done under an employer's direction in the United States. Thus, this element suggests that UNICOR was Complainant's "employer." Finally, the working relationship between UNICOR and workers like Complainant is open-ended; the workers may stay on as long as they are incarcerated. This factor, too, points toward an employer-employee relationship.

   METHOD OF PAYMENT: EMPLOYEE BENEFITS

   The tax treatment of UNICOR workers is the one element from the Reid/Restatement analysis that points away from an employer-employee relationship. As noted above, UNICOR workers are apparently not taxed on their earnings.

   However, the other factors relating to compensation strongly suggest that UNICOR "employs" its workers. UNICOR has set up a system of pay grades, within which workers can be promoted. 28 C.F.R. § 345.14. UNICOR workers receive overtime compensation, longevity pay, vacation credit, administrative pay, and holiday pay. 28 C.F.R. §§ 345.19-.23. They are also the beneficiaries of an incentive award program and a workers' compensation program. 28 C.F.R. §§ 454.60-.64; 28 C.F.R. Part 301.

combatting pollution, 42 U.S.C. § 7401(b) (the CAA), and to regulate substances which "present an unreasonable risk of injury to health or the environment." 15 U.S.C. § 2601(b) (the TSCA). They were also needed "to provide appropriate employee protection measures . . . ." H.R. Rep. No. 294, 95th Cong., 1st Sess. 2, reprinted in 1987 U.S. Code Cong. & Admin. News 1077, 1079 (regarding the CAA). A senator who held hearings on the TSCA told the Senate that the whistleblower provision was one of the statute's six "important provisions." 122 Cong. Rec. 8281 (1976) (remarks of Sen. Tunney).

   The whistleblower provisions, then, are vital parts of the Acts. These provisions protect not only individual employees, but also the public health and welfare and the environment, by fostering open channels of communication regarding the injurious conditions which the Acts seek to remedy. It is particularly important for such open channels to exist behind prison walls, where UNICOR's industrial activities are hidden from public scrutiny. UNICOR's inmate workers are already deprived of their freedom and many other rights that non-inmates take for granted. If these workers are further deprived of the protections of the Acts' whistleblower provisions, they will likely be reluctant at best to disclose environmentally hazardous conditions to the outside world. Unlike Title VII plaintiffs in cases like Baker or FLSA plaintiffs in cases like Gilbreath, whistleblowers serve not their own interests so much as the interests of the public at large. To discourage whistleblowing by UNICOR's inmates would frustrate Congress' intent to encourage reporting of environmental hazards.

"employee" within the meaning of the Acts. The question remains whether the substantive aspects of his whistleblower claim in Case No. 92-TSC-00006 have merit.

   The TSCA provides that

No employer may discharge any employee or otherwise discriminate against any employee with respect to the employee's compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee) has >

(1) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter;

(2) testified or is about to testify in any such proceeding; or

(3) assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other action to carry out the purposes of this chapter.

15 U.S.C. § 2621(a). The corresponding part of the CAA's whistleblower provision is almost identical. 42 U.S.C. § 7622(a).

   The Secretary recently set out the burdens of proof and production in whistleblower cases as follows:

    Under the burdens of proof and production in whistleblower proceedings, Complainant first must make a prima facie showing that protected activity motivated Respondent's decision to take adverse employment action. Respondent may rebut this

showing by producing evidence that the adverse action was motivated by a legitimate, nondiscriminatory reason. Complainant then must establish that the reason proffered by Respondent is not the true reason. Complainant may persuade directly by showing that the unlawful reason more likely motivated Respondent or indirectly by showing that Respondent's proffered explanation is unworthy of credence.

McCuistion v. Tennessee Valley Authority, Case No. 89-ERA-6, Decision and Order (November 13, 1991), 5 Dec. OALJ & OAA 6 at 89, 90.

   To establish a prima facie case, "Complainant 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." Id. He must also "present evidence sufficient to raise the inference that the protected activity was the likely reason for the adverse action." Id. A retaliatory motive may be proved by circumstantial evidence, even where witnesses testify that they did not perceive such a motive. Id. at 90 n.5; Mackowiak v. University Nuclear Systems Inc., 735 F.2d 1159, 1162 (9th Cir. 1984).

    COMPLAINANT'S PROTECTED ACTIVITY

   Commencing a proceeding under the Acts is a protected activity. 15 U.S.C. § 2622(a)(1); 42 U.S.C. § 7622(a)(1). Complainant's filing of complaints under the Acts in Case Nos. 90-TSC-00001 and 91-TSC-00003 was therefore a protected activity.

   RESPONDENT'S ADVERSE ACTION

question obviously must include Case Nos. 90-TSC-00001 and 91-TSC-00003. Mr. Jenkins' and Mr. Johnson's statements clearly imply that members of the Terminal Island staff knew of Complainant's prior whistleblower actions at the time he applied for work on February 3, 1992 and beforehand.

   Since UNICOR, not the Bureau, is the respondent here, one might argue that Mr. Jenkins and Mr. Johnson are Bureau employees whose knowledge of Complainant's whistleblower actions could not be imputed to UNICOR. However, at Terminal Island the functions of UNICOR and the Bureau overlap to some degree. James Abele, the associate warden in charge of industries, oversees UNICOR operations at Terminal Island. Yet Mr. Abele and his superior, Warden Henry, are presumably employees of the Bureau. Similarly, Mr. Jenkins and Mr. Johnson, both of whom are apparently Bureau employees, appeared to have some role in Complainant's effort to obtain employment with UNICOR. Finally, the Bureau's Western Regional Office has represented UNICOR in this case.

   UNICOR's involvement in Complainant's prior whistleblower actions, the knowledge displayed in January 1992 by Bureau employees at Terminal Island of Complainant's prior whistleblower complaints, and the blurred line between the Bureau and UNICOR all imply that the person or persons who bear responsibility for not hiring Complainant on February 3, 1992, had actual knowledge that he was a "whistleblower." UNICOR chose not to appear at the hearing and thus has offered no evidence or argument to rebut Complainant's contention. It is found that UNICOR knew of Complainant's whistleblowing complaints at the time it declined to him on February 3, 1992. Since UNICOR knew of the complaints at that time, it follows that it knew of them when Complainant was removed from UNICOR and placed in segregation on May 15, 1992.

   EVIDENCE OF RETALIATORY MOTIVE

   Complainant must "present evidence sufficient to raise the inference that the protected activity was the likely reason for the adverse action." McCuistion, 5 Dec. OALJ & OAA 6 at 90. A retaliatory motive may be proved by circumstantial evidence. Id. In late January 1992, or before Complainant went to UNICOR, Mr. Jenkins and Mr. Johnson, who were apparently responsible for placing Complainant on UNICOR's waiting list, told him he might not be placed in the waiting list, let alone be hired, because of his prior whistleblower complaints. In addition, Larry Jewel Glaze heard Mr. Johnson tell Mr. Jenkins at this time that he (Mr. Johnson) was upset with Complainant's filing of complaints.

In the absence of evidence to the contrary, it is found that Mr. Johnson was referring, at least in part, to Case Nos. 90-TSC-00001 and 91-TSC-00003.

   Similarly, Complainant has written that on March 4, 1992, Mr. Abele, who oversees UNICOR at Terminal Island, threatened Complainant with a transfer, at least in part because of his whistleblower filings (ALJX 17, Formal Complaint; CX 1, p. 2). With Complainant's high degree of credibility in mind and in the absence of testimony to the contrary, the undersigned finds this to be true. Although Mr. Abele threatened Complainant a month after February 3, his behavior suggests that a retaliatory motive was present on the earlier date.

   It is found that the foregoing evidence raises the inference that UNICOR refused to hire Complainant on February 3, 1992, because of his prior whistleblowing complaints in Case Nos. 90-TSC-00001 and 91-TSC-00003. As for Complainant's placement in segregation on May 15, 1992, the same evidence relied upon above suggests that a retaliatory motive had been present for months beforehand. Further, the conflicting explanations given for the segregation (Complainant's alleged instigation of a work stoppage versus his forthcoming prison transfer) render UNICOR's motives even more suspect. It is thus found that UNICOR had Complainant placed in segregation because of his prior whistleblowing complainants. Accordingly, Complainant has presented a prima facie case of unlawful discrimination.

   Since UNICOR did not appear in this case, there is no rebuttal to consider. For the sake of completeness, however, the undersigned will consider arguments that the Bureau and UNICOR have presented outside of the hearing.

   Complainant maintains that UNICOR did not rehire him on February 3, 1992, because of his prior whistleblower complaints. On the other hand, UNICOR told Complainant that he would not be hired due to his epilepsy. Later, the Bureau told Congressman Waxman and Complainant that he was not hired on February 3, 1992, because he had not yet-been placed on the waiting list (CX 18, CX 20).

   The Secretary has held that where, as here, the complainant contends that the respondent's motives were wholly retaliatory, and the respondent counters that its motives were wholly legitimate, the "dual motive" theory is inapplicable. McCuistion, 5 Dec. OALJ & OAA 6 at 89 n.1. Instead, the "pretext" legal discrimination model should be used "because it focuses on determining the employer's true motivation, rather than weighing competing motivations." Id.

   UNICOR and the Bureau have placed their credibility in question by first naming Complainant's epilepsy and then his alleged absence from the waiting list as the reason why he was not rehired on February 3, 1992. That this is not an isolated instance is suggested by the contradictory reasons the Bureau gave for transferring Complainant to the Lewisburg FCI in 1990 and for placing him in segregation in 1992. The Bureau told Congressman Waxman that Complainant was transferred to Lewisburg for his own safety because of a letter portraying him as a homosexual. However, the Bureau revealed in an internal memorandum that Complainant was transferred for attempting to create dissension among inmates directed towards the staff (by whistleblowing, one wonders?). As for Complainant's placement in segregation in 1992, once again two conflicting reasons were given: first, that he was under investigation for fomenting unrest among fellow workers, and then that he had done nothing wrong but was placed in segregation because he was being transferred.

   Given these contradictions, neither Complainant's epilepsy nor his waiting list status is found to be a credible reason for refusing to hire him. Furthermore, if Complainant was not placed on the waiting list until weeks after being told he would be, that too may have been a retaliatory action.

   Another possible reason for not hiring Complainant is J.C. Johnson's allegation that the UNICOR facility at the Three Rivers FCI was displeased with Complainant. However, Complainant had a good work record, which suggests that either Mr. Johnson may have been mistaken or that UNICOR was displeased with Complainant's whistleblowing, not his work record.

   As for Complainant's placement in segregation on May 15, 1992, the contradictory reasons given by the Bureau (Complainant's alleged instigation of a work stoppage versus his forthcoming prison transfer) suggest that neither was the true ground for the Bureau's action. Additionally, the undersigned finds that Complainant did not attempt to cause a work stoppage at Terminal Island. If Complainant was removed from UNICOR because he was being transferred, he would have been told so. Instead, he was presented with an apparently false charge of creating unrest in the workplace.

   Accordingly, arguments-along these lines would be rejected. The undersigned would find that the reasons UNICOR gave for refusing to hire Complainant were pretextual.

   Complainant has made out a prima facie case of unlawful discrimination, which UNICOR has failed to rebut. UNICOR is thus liable to Complainant for violating the Acts. The TSCA provides that where the Secretary finds that an employer violated the whistleblower provisions,

the Secretary shall order (i) the person who committed such violation to take affirmative action to abate the violation, (ii) such person to reinstate the complainant to the complainant's former position together with the compensation (including back pay), terms, conditions, and privileges of the complainant's employment, (iii), compensatory damages, and (iv) where appropriate, exemplary damages. . . . the Secretary, at the order of the complainant, shall assess . . . a sum equal to the aggregate amount of all costs and expenses . . . reasonably incurred . . . by the complainant . . . in connection with t] the bringing of the complaint upon which the order was issued.

15 U.S.C. § 2622(b)(2)(B). The CAA's equivalent provision is virtually identical, but does not provide for exemplary damages. 42 U.S.C. 7622(b)(2)(B); see also 24 C.F.R. § 24.6(b)(3).

    BACK PAY

   "The purpose of a back pay award is to make the employee whole, that is, to restore the employee to the same position he would have been in if not discriminated against." Blackburn v. Metric Constructors Inc., Case No. 86-ERA-4, Decision and Order on Damages and Attorney Fees and Remand on Attorney Fees (October 30, 1991), 5 Dec. OALJ & OAA 5 at 135, 138. Back pay awards are thus "based on the earnings the employee would have received but for the discrimination." Id.

while working in such replacement employment.

    INTEREST

   Complainant is entitled to prejudgment interest, at the rate specified in 26 U.S.C. § 6621, on the net amount of back pay due after deductions for earning from replacement employment are made. See Blackburn, 5 Dec. OALJ & OAA 5 at 140.

    MISSED PROMOTIONS

   Complainant's time lost between February 3 and March 27, 1992, and his placement in segregation on May 15, 1992, resulted not only in lost earnings but in lost time that would have been counted towards promotions to higher grades. He is thus entitled to receive any promotions or credit towards promotions that he would have received if UNICOR had hired him on February 3, 1992, and had not had him removed from work on May 15, 1992.

   ABATEMENT OF THE VIOLATION

   The Acts and applicable regulations provide that the Secretary shall order a party who is found to violate the whistleblower provisions to abate the violation. 15 U.S.C. § 2622(b)(2)(B); 42 U.S.C. 7622(b)(2)(B); 24 C.F.R. § 24.6(b)(2). It is therefore recommended that the Secretary order UNICOR to cease all discrimination against Complainant.

    REINSTATEMENT

   UNICOR rehired Complainant on March 27, 1992. Complainant testified at the hearing that although he was not working for UNICOR because he was in segregation, he was "technically" still employed. However, he was not presently working at UNICOR. Since it is found that UNICOR caused Complainant to be placed in segregation, it is recommended that UNICOR be ordered to cause Complainant to be released from segregation and returned to his UNICOR job.

    EXEMPLARY DAMAGES

   The TSCA provides that exemplary damages may be awarded "where appropriate." 15 U.S.C. § 2622(b)(2)(B). Due to UNICOR's treatment of Complainant and its obstruction of justice by refusing to obey subpoenas and attempting, in concert with the Bureau, to prevent the hearing from taking place, it is found that exemplary damages in the sum

of $10,000.00 are appropriate.

    COSTS

   The Acts provide that costs and expenses "reasonably incurred . . . in connection with[] the bringing of the complaint upon which the order was issued" may be reimbursed. 15 U.S.C. § 2622(b)(2)(B); 42 U.S.C. § 7622(b)(2)(B). Complainant estimated that his costs in bringing both complaints amounted to two or three hundred dollars. Since it is recommended that Case No. 92-TSC-00008 be dismissed, Complainant should not be compensated for costs attributable to that case. However, Complainant did not provide a breakdown of the costs attributable to each case. It appears that most of the costs were incurred in bringing Case No. 92-TSC-00006, or jointly attributable to both cases. Accordingly, it is recommended that Complainant be awarded $250.00 in costs, a sum which is a compromise between the two figures he named and which, taking the higher figure of $300.00 as accurate, allows for $50.00 in expenses for Case No. 92-TSC-00008 to be subtracted from the total.

   With respect to Case No. 92-TSC-00006, it is recommended that Respondent UNICOR be ordered to:

   1. Compensate Complainant in the sum of $207.67 for back pay due for the period of February 3, 1992, to March 26, 1992, inclusive. Complainant is also to receive back pay at the daily rate of $5.325 from May 15, 1992, until UNICOR reinstates him. If Complainant would have earned more that 71 cents per hour if he had been hired on February 3, 1992, and placed in segregation on May 15, 1992, the back pay is to be computed at such higher-rate. Any money Complainant earned in alternate employment between February 3, 1992, and March 26, 1992, inclusive, and between May 15, 1992, and the date of his reinstatement should be offset against the award.

   2. Pay prejudgment interest on the back pay amount to be computed in accordance with 26 U.S.C. § 6621.

   3. Pay Complainant $10,000.00 in exemplary damages.

   4. Provide Complainant with any promotions or credit toward promotions he would have received had UNICOR hired

him on February 3, 1992.

   5. Cause Complainant to be released from segregation and returned to his UNICOR job.

   6. Cease and desist from any discrimination against Complainant.

   7. Pay to Complainant $250.00 for costs incurred in bringing the complaint.

   It is recommended that the complaint in Case No. 92-TSC-00008 be dismissed.

   Entered on this 11th day of June 1992, at Anaheim, California.

       SAMUEL J. SMITH
       Administrative Law Judge