               UNITED STATES COURT OF APPEALS 
                    FOR THE FIRST CIRCUIT
                                         

No. 93-2287

                    ROBERT B. REICH, ETC.,

                     Plaintiff, Appellee,

                              v.

               CAMBRIDGEPORT AIR SYSTEMS, INC.,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

      [Hon. Bailey Aldrich,* Senior U.S. Circuit Judge]
                                                      

                                         

                            Before

                    Breyer,** Chief Judge,
                                         
               Campbell, Senior Circuit Judge,
                                             
                   and Cyr, Circuit Judge.
                                         

                                         

Barry  C.   Klickstein  with  whom   Herbert  Abrams,  Sandra   J.
                                                                  
McLaughlin  and Abrams, Roberts, Klickstein  &amp; Levy were  on brief for
                                               
appellant.
Edward   D.   Sieger,  Senior   Appellate   Attorney,   Thomas  S.
                                                                  
Williamson,  Jr.,  Solicitor of  Labor,  Allen  H. Feldman,  Associate
                                                      
Solicitor  for Special  Appellate  and Supreme  Court Litigation,  and
Nathaniel I. Spiller, Counsel  for Appellate Litigation, United States
                
Department of Labor, were on brief for appellee. 

                                         
                        June 20, 1994

                

*Of the First Circuit, sitting by designation.

**Chief Judge Stephen Breyer  heard oral argument in this  matter, but
did not participate  in the drafting  or the  issuance of the  panel's
opinion.   The  remaining two panelists  therefore issue  this opinion
pursuant to 28 U.S.C.   46(d).

                                         

          CAMPBELL, Senior Circuit  Judge.  The Secretary  of
                                         

Labor  ("the Secretary")  brought this  retaliatory discharge

action in the  United States District Court  for the District

of   Massachusetts   pursuant  to   Section   11(c)  of   the

Occupational Safety and  Health Act of 1970  ("the OSH Act"),

29  U.S.C.   660(c).  The  Secretary's complaint alleged that

defendant-appellant      Cambridgeport      Air       Systems

("Cambridgeport")  violated  the  OSH  Act in  June  1989  by

discharging two employees, Peter Richardson and  Shawn Roche,

because they had complained  about health and safety problems

at    Cambridgeport's    Salisbury,   Massachusetts    plant.

Richardson had  been employed by  the defendant as  a welder;

Roche was a general shipper-trainee.

          The  claim was tried by the court over five days in

May 1993.   In a  written opinion, the  district court  found

that  the  defendant-appellant   had  discharged   Richardson

because  of  his protected  activities.    The court  awarded

Richardson  back pay  and  then doubled  this  award, as  the

Secretary had  requested, to   "cover additional  damage plus

prejudgment  interest."     The   total  amount   awarded  to

Richardson was $104,968.

          The court  found that Roche was  not discharged for

his  own protected activity.  Rather, the court found that he

was  terminated   because  "he   was  a  special   friend  of

Richardson's,"  that  his  discharge  was  "a  house-cleaning

                             -3-

proposition," and that he "would not have been discharged but

for his  connection with  Richardson."  As  with Richardson's

award, the court awarded  Roche an amount equal to  twice his

lost back pay, a total of $88,552.

          Cambridgeport appeals, and we affirm.  

                              I.

          Cambridgeport does  not  appeal from  the  district

court's ruling that Richardson  was terminated because of his

protected activities.  Rather, Cambridgeport argues that  the

district court erred in  finding that Roche's termination was

retaliatory, and in calculating the back pay damages for both

Richardson  and  Roche.   As  both  determinations depend  on

findings  of fact,  we may  set them  aside only  if "clearly

erroneous."   Fed. R. Civ.  P. 52.   We are required  to give

"due  regard" to the "opportunity of the trial court to judge

the  credibility  of  the  witnesses."    Id.     Under  this
                                             

deferential standard,  we  must  accept  a  district  court's

account  of the evidence if it is  "plausible in light of the

record  viewed in its  entirety . .  . . Where  there are two

permissible views  of the  evidence, the  factfinder's choice

between  them  cannot be  clearly  erroneous."   Anderson  v.
                                                         

Bessemer City, 470 U.S. 564, 574 (1985).
             

                              A.

                             -4-

          Cambridgeport  contends  that Roche  was terminated

for  valid   work  reasons,   not  in  retaliation   for  his

association with Richardson.  Roche admitted at trial that he

had  made mistakes at work and had been reprimanded.  Roche's

supervisors  also  testified  that his  work  performance was

poor.  Cambridgeport  contends  that  the  only  evidence  in

support of the court's explanation for Roche's discharge came

from Roche  himself, whose testimony was  not deemed credible

in other respects by the district court.1 

          It is true that the district court was unwilling to

credit  Roche's testimony  that he  had joined  Richardson in

complaining about  safety and  health matters.   Still, there

was sufficient  evidence to support the  court's finding that

Roche  was   terminated  because   of  his   connection  with

Richardson.   There  was evidence  that Roche  and Richardson

were particularly close friends and that management was aware

of  this.  Roche's supervisor  had warned Roche  not to raise

safety concerns.   In addition, Roche's  termination followed

less  than a week after  Richardson's, at a  time when Roche,

according to his testimony,  was sufficiently concerned about

his job security to bring a tape recorder to work.  Moreover,

the court was unimpressed by Cambridgeport's asserted reasons

for Roche's discharge.    Cambridgeport's witnesses, it said,

                    

1.  Cambridgeport concedes  that the  OSH Act  would prohibit
Roche's termination if  in fact he was discharged  because of
his relationship with Richardson.  

                             -5-

had "greatly exaggerated" their accounts  of Roche's problems

at work.

          Given its adverse assessment of the credibility  of

Cambridgeport's   witnesses,  and   the  close   and  visible

connection between Richardson and  Roche, the district  court

felt that  the most likely explanation  for Roche's discharge

was that Cambridgeport wanted to "get rid of the smaller fry,

and impress the other employees" not to associate with health

and  safety activists.  While not the only possible one, this

view  of the evidence was  "plausible in light  of the record

viewed  in  its  entirety."    Anderson,  470  U.S.  at  574.
                                       

Questions  of witness  credibility are  particularly  for the

trier to resolve.  United  States v. Olea, 987 F.2d  874, 876
                                         

(1st Cir.  1993).  We cannot  say the court clearly  erred in

finding that  Roche was discharged because  of his connection

with Richardson.

                              B.

          The parties stipulated that  the period of back pay

at  issue was  from the  June 1989  dates of  discharge until

December 12, 1991.  The district court calculated the damages

for  both employees  based on  the assumption  that, but  for

their retaliatory discharges,  they both would have  retained

their jobs for this entire period.  Cambridgeport argues that

this calculation  was clearly erroneous and  not supported by

the  evidence.    Cambridgeport  insists  that  its  work  is

                             -6-

cyclical, and  that given Richardson's lack  of general sheet

metal  workers' skills  and Roche's  poor work  history, both

employees would have been laid off long before December 1991.

          Again,  the district  court's findings  depended in

large   part  on   its  determination   that  Cambridgeport's

witnesses  lacked credibility.   The  district court  did not

believe the Cambridgeport witnesses' assertions that the work

for  which Richardson had been  hired "fell off,"  nor did it

believe that his work performance was unsatisfactory.  In the

court's  view,  the  defendant's  reasons  for  limiting  its

liability  vis-a-vis  Richardson  were  "likely  trumped up."

There was  evidence that  Richardson's ability and  character

were, overall, in the words of the court, "satisfactory," and

that  less than a week after his discharge, the company hired

a new employee to do the exact work that Richardson  had been

doing.  Moreover, there was evidence that Richardson could do

non-welding work and could have been transferred to such work

if the "pure welding" work "fell off."  

          There was  also sufficient  evidence in the  record

for the  court to disbelieve Cambridgeport's  contention that

Roche  would  have been  laid off  soon  after June  1989 "in

accord  with  the  cyclical  swings of  employment,  and  not

rehired."  Cambridgeport placed an advertisement in the local

newspaper for "shop laborers" on the day Roche was discharged

                             -7-

and subsequently hired workers  in the department where Roche

worked.

          On reading the record as a whole, we cannot say the

court's  view of the evidence  was implausible.   It was not,

therefore,  clear  error  for  the  court  to  calculate  the

employees' back pay award on the basis of an assumption that,

but for  their retaliatory  discharges, they both  would have

retained their jobs for the entire stipulated period.  

                             II.

          The Secretary  advanced the view at  trial that the

appropriate  measure of  damages  for both  employees was  an

amount equal to twice  their back pay losses.   The Secretary

argued to  the district court  that doubling back  pay losses

would  not be a penalty, but would serve "to compensate[] for

the effects of loss of pay upon the victim[s]."
           

          The  court  adopted  the  Secretary's   measure  of

damages, saying  that "the conduct of this defendant, both in

and out of court,  is so consistently brash that  [the court]

feels justified in finding doubling the lost wages award, but

to  serve   to  cover  additional  damage   plus  prejudgment

interest."   The  court later supported  its doubling  of the

award  by  "calling  for  special support  of  the  statutory

purpose  when  an employer  flaunts it  both  by word  and by

openly unambiguous conduct."

                             -8-

          Cambridgeport  argues  that doubling  the  back pay

award  amounted  to  an  award  of  punitive,  or  exemplary,

damages, and was  unauthorized by  the OSH Act.   It  insists

that courts interpreting  the statute have  uniformly limited

recovery  in  cases of  retaliatory  discharge  to back  pay,

employment   search   expenses,   and  in   some   instances,

prejudgment   interest.      The   Secretary   contests   the

characterization of the award as  exemplary.  He argues  that

the  court's statement  that  double wages  served "to  cover

additional  damage  plus   prejudgment  interest"  shows   an

intention to grant compensatory  damages, and that the record

supports the  award on  that basis.   The  Secretary concedes

that  this is the first reported case in which double damages

have been awarded under the OSH Act.  But he insists that the

case  also  represents  the  first  time  the  Secretary  has

actually asked for such damages.
              

                              A.

          The  question  of whether  the  district court  was

within  its authority  to authorize  double back  pay damages

turns on an interpretation  of Section 11(c) of the  OSH Act,

29 U.S.C.    660(c).  This  is a question of  law, subject to

our review de novo.  United States v. Jones, 10 F.3d 901, 904
                                           

(1st Cir. 1993).

          The relevant provision reads:

          Any employee  who believes  that  he has  been
          discharged or  otherwise discriminated against

                             -9-

          by any person in violation  of this subsection
          may . . . file a complaint with  the Secretary
          alleging such discrimination. . . .  If [after
          appropriate]   investigation,   the  Secretary
          determines   that   the  provisions   of  this
          subsection have been violated, he  shall bring
          an  action  in any  appropriate  United States
          district court against  such person.   In  any
          such action the United States  district courts
          shall  have jurisdiction,  for cause  shown to
          restrain  violations  .  .  .  and  order  all
                                                        
          appropriate   relief  including   rehiring  or
                              
          reinstatement  of the  employee to  his former
          position with back pay.

29  U.S.C.    660(c)(2)  (emphasis  added).   We  must decide

whether  the district  court's awarding  of damages  equal to

twice the  employees' lost back pay  was "appropriate relief"

within the meaning of the statute and  under the facts of the

case.  

          The Secretary  urges that  we interpret    11(c) in

the  light of Franklin v. Gwinnett County Public Sch., 112 S.
                                                     

Ct.  1028, 1032 (1992).  In Franklin, the Supreme Court ruled
                                    

that  federal courts  may award  monetary damages  in private

actions  brought  to  enforce   Title  IX  of  the  Education

Amendments of 1972, 20 U.S.C.    1681-1688 ("Title IX").  Id.
                                                             

at 1038.   Congress did  not explicitly  provide for  private

actions  in Title  IX; however,  the right  to  bring private

actions was  earlier  "implied" by  the  Court in  Cannon  v.
                                                         

University of Chicago, 441  U.S. 677 (1979).  Even  absent an
                     

express  right  to  sue, monetary  damages  were  held to  be

available because  the Court "presume[s] the  availability of

all  appropriate  remedies   unless  Congress  has  expressly

                             -10-

indicated otherwise."   Franklin, 112  S. Ct. at  1032.   The
                                

Court  announced "[t]he general  rule . . . that absent clear
                                                             

direction  to the  contrary by  Congress, the  federal courts
                           

have  the  power  to  award  any  appropriate  relief  in   a

cognizable  cause of  action  brought pursuant  to a  federal

statute."  Id. at 1035 (emphasis added).
              

          The instant  case differs from Franklin  in that we
                                                 

are here  construing Congress's meaning when,  in creating an
                               

express  cause of  action  for  the  Secretary  of  Labor  to

institute  on behalf  of an  aggrieved employee,  it licensed

courts  to "order all appropriate relief."  In Franklin, "all
                                                       

appropriate remedies" were the Court's words, not Congress's.

Nonetheless,  the parallel  is unmistakable.   It is  hard to

believe that  the Supreme  Court     having presumed  that an

implied  private  right of  action included  "all appropriate

remedies"  or "any appropriate  relief," and having construed

remedies so described to  include "monetary damages" and "any

of   the    procedures   or   actions    normally   available

. . . according to  the exigencies  of the particular  case,"

112  S.  Ct.  at  1034      would  construe  less  generously

Congress's  similar phrase,  "all  appropriate  relief."   We

think   Franklin  strongly  suggests  that  "all  appropriate
                

relief" as  written in    11(c) embraces monetary  damages as

well as  other relevant  forms of relief  normally available,

                             -11-

Congress  having  provided   no  "clear  direction"  to   the

contrary.  See 112 S. Ct. at 1035.
              

          Cambridgeport, nonetheless, would have us find here

"clear  direction to  the contrary"  because the  phrase "all

appropriate  relief" is  succeeded by  the  words, "including

rehiring  or  reinstatement of  the  employee  to his  former

position  with back  pay."   This,  we  are told,  evinces  a

Congressional  intent  to  limit  relief  to  those  remedies

expressly  mentioned, or  at least  to the kinds  of remedies
                                                

mentioned.   Cambridgeport  contends  that given  the express

delineation of  certain  remedies,  "[t]here  is  nothing  to

suggest that  Congress affirmatively intended [] an expansive

interpretation"  of    11(c),  and  that  double damages  are

therefore unauthorized under the OSH Act.

          However, the key language of the OSH Act  is broad.

It authorizes a court to "order all appropriate relief."  The

further   language   including    certain   remedies,    like
                              

reinstatement,  indicates  the   availability  of  the  named

remedies,  but does  not  purport to  limit "all  appropriate

relief" to those remedies  only.  The mere naming  of certain

included remedies neither suggests nor is a "clear direction"

that  other remedies are precluded.  See Franklin, 112 S. Ct.
                                                 

at 1035; Federal Land Bank of St. Paul v. Bismark Lumber Co.,
                                                            

314 U.S. 95, 100  (1941) ("[T]he term 'including' is  not one

                             -12-

of   all-embracing   definition,  but   connotes   simply  an

illustrative application of the general principle.").

          We  conclude  that   the  phrase  "all  appropriate

relief"  under      11(c)  includes  "monetary   damages"  as

specifically held in Franklin.  Moreover, given the expansive
                             

language in  Franklin ("[t]he general rule  . . . that absent
                     

clear  direction to  the  contrary by  Congress, the  federal

courts  have the power to  award any appropriate  relief in a

cognizable  cause of  action  brought pursuant  to a  federal

statute,"   112 S. Ct.  at 1035), it  is difficult to exclude

even  exemplary   damages   where  otherwise   justified   in
               

particular circumstances.   Later, analogous federal statutes

protecting "whistleblowers" expressly list  exemplary damages

as  within  the rubric  of  "all  appropriate relief."    For

example, 42 U.S.C.    5851 protects whistleblowers in nuclear

facilities  from  retaliatory  discharge and  discrimination.

The  jurisdiction  provision  of  the  statute  provides   in

relevant part:

          In actions brought under this subsection,
          the    district    courts   shall    have
          jurisdiction  to  grant  all  appropriate
          relief  including,  but  not limited  to,
          injunctive  relief, compensatory  relief,
          and exemplary damages.

42 U.S.C.    5851(d).  See  also 15  U.S.C.   2622(d)  (toxic
                                

substances) ("In  actions brought under this  subsection, the

district  courts   shall  have  jurisdiction  to   grant  all

appropriate   relief,   including   injunctive   relief   and

                             -13-

compensatory  and  exemplary damages.");  42  U.S.C.    300j-

9(i)(4) (safety  of public water systems)  (courts may "grant

all  appropriate  relief  including,  but  not  limited   to,

injunctive  relief, compensatory, and exemplary damages"); 42

U.S.C.     7622(d) (air  pollution)  (courts  may grant  "all

appropriate relief including, but  not limited to, injunctive

relief, compensatory, and exemplary damages").

          By  expressly  identifying  exemplary   damages  as

authorized under these  similar statutes, Congress recognizes

exemplary damages as falling within the term "all appropriate

relief."    To be  sure,  the  express  mention of  exemplary

damages  in these other statutes can be said to reflect doubt

whether, without  such reference, the term  would necessarily

include exemplary  damages.  Under the  broad and unequivocal

language  in Franklin,  however, the  absence of  an explicit
                                             

mention in the OSH Act would not seem enough to take from the

courts  their "'"power to  utilize any  of the  procedures or

actions normally available  . . . according to the exigencies

of  the particular  case."'"   Franklin, 112  S. Ct.  at 1034
                                       

(quoting J.I. Case Co. v. Borak, 377 U.S. 426, 433-34 (1964),
                               

in  turn quoting  Deckert v.  Independence Shares  Corp., 311
                                                        

U.S. 282, 288 (1940)).  Where Congress itself has recognized,

in these  other statutes,  that "all appropriate  relief" may

include exemplary  damages, it is  difficult to  see why  the

                             -14-

mere  omission  of the  specific  reference  should compel  a

narrower reading.  

          Courts  have traditionally  had  the power  in tort

cases to  award damages "larger than the  amount necessary to

reimburse actual  monetary loss sustained or even anticipated

by  the plaintiff,  and thus  redress intangible  elements of

injury that are 'deemed  important, even though not pecuniary

in  [their]  immediate consequences[s].'"   United  States v.
                                                          

Burke,  112  S.  Ct. 1867,  1871  (1992)  (quoting  D. Dobbs,
     

Remedies  136  (1973)).    And  in  circumstances  where  the
        

defendant's misconduct was intentional or reckless, "punitive

or exemplary damages  are generally available."   Id. at 1872
                                                     

(citations omitted).   See also Molzof v.  United States, 112
                                                        

S. Ct. 711,  715 (1992) (the Supreme  Court's "decisions make

clear  that the  concept  of 'punitive  damages'  has a  long

pedigree in  the law"); Rowlett v.  Anheuser-Busch, Inc., 832
                                                        

F.2d  194, 205  (1st  Cir. 1987)  ("[I]n jurisdictions  where

punitive  damages are authorized, punitive damages are within

the jury's discretion in cases requiring proof of intentional

wrongdoing.")  (citing  Smith v.  Wade,  461  U.S. 30,  53-54
                                      

(1983)).    Retaliatory  discharge  has been  treated  as  an

intentional tort.  See Travis v. Gary Community Mental Health
                                                             

Ctr., 921  F.2d 108, 112  (7th Cir. 1990);  see also  W. Page
                                                    

Keeton et al., Prosser and Keeton on the Law of Torts,   130,
                                                     

at 1027-29 (5th ed. 1984).

                             -15-

          Perhaps the strongest  argument for  distinguishing

Franklin,   and  deciding  that   punitive  damages  are  not
        

available under 11(c) of the OSH Act, lies in certain aspects

of  its  legislative  history  and  in  the  practice  of not

awarding such damages under  certain other federal  statutes.

In the version  of the OSH  Act reported  to the full  Senate

from  the  Committee on  Labor  and Public  Welfare,  the Act

provided only for administrative  action to obtain relief for

an employee discriminated against for asserting  rights under

the Act.   See S. Rep.  No. 1282, 91st Cong.  2d Sess., 34-35
              

(1970),  reprinted in Legislative History of the Occupational
                                                             

Safety and Health Act of 1970, at 174-75 (1971) ("Legislative
                                                             

History");  S. 2193,  91st Cong., 2d  Sess.,    10(f) (1970),
       

reprinted in Legislative History at 261; Conf. Rep. No. 1765,
                                

91st  Cong., 2d  Sess., 39  (1970), reprinted  in Legislative
                                                             

History  at 1192.  This  Senate version allowed employees who
       

believed  they were  discriminated  against to  apply to  the

Secretary    for   an    investigation   of    such   alleged

discrimination.  S. 2193, supra,    10(f).  After appropriate
                               

investigation,  which could  include  a  public hearing,  the

Secretary was to  make findings  of fact.   If the  Secretary

found that a violation of the Act had occurred, the Secretary

was to  order "the person  committing such violation  to take
                                                             

such  affirmative  action  to  abate  the  violation  as  the
                         

Secretary deems appropriate,  including, but not  limited to,
                                                             

                             -16-

the rehiring or reinstatement  of the employee to  his former
                                                             

position with back pay."  Id. (emphasis added).
                             

          This  language authorizing  the Secretary  to order

"such affirmative action" was similar to the language used in

the remedial provisions of  both the National Labor Relations

Act ("the NLRA") and of Title  VII of the Civil Rights Act of

1964 ("Title VII").  Section 10(c) of the NLRA authorizes the

National Labor Relations Board to  investigate allegations of

unfair labor practices and,  if the allegations are found  to

be  true,   to  order  "such   affirmative  action  including
                                                  

reinstatement  of employees with or without back pay, as will

effectuate  the  policies"  of the  Act.    29  U.S.C.    160

(emphasis added).

          Similarly,   706(g) of  Title VII authorizes courts

hearing  a  complaint   of  discrimination  to  "order   such
                                                             

affirmative action as may  be appropriate, which may include,
                  

but is not limited to, reinstatement or  hiring of employees,

with or without back pay .  . . or any other equitable relief

as  the  court  deems  appropriate."   42  U.S.C.     2000e-5

(emphasis added).  This provision was expressly modeled after

  10(c) of  the NLRA.  See Abermarle Paper  Co. v. Moody, 422
                                                        

U.S.  405,  419 &amp;  n.11  (1975); Robert  Belton,  Remedies in
                                                             

Employment Discrimination Law   13.3 at 430 (1992).  
                             

          The  similarity of  the  Senate's early  version of

what  became   11(c) of  the OSH Act  to both    10(c) of the

                             -17-

NLRA and   706(g) of Title VII suggests that the Senate meant

to incorporate into its version of the OSH Act the same kinds

of remedies that were available under the NLRA and Title VII.

And  in choosing  such  remedies, the  Senate was  presumably

aware that, as early as 1938, the Supreme Court had held that

punitive  damages   were  not  available  under   the  NLRA.2
                             

Consolidated Edison Co. v. NLRB, 305 U.S. 197, 235-36 (1938);
                               

see also Republic Steel Corp. v. NLRB, 311 U.S. 7, 12 (1940).
                                     

The Court  had interpreted the NLRA's  language by explaining

that the  power to command "affirmative  action" was remedial

rather  than punitive.  Consolidated Edison, 305 U.S. at 236;
                                           

see also Republic Steel, 311 U.S. at 12.  
                       

          Therefore,  if this  language  allowing  courts  to

order  "affirmative action"  had been  retained in  the final

version of the OSH Act, we  would be in a position similar to

those courts that have interpreted Title VII as not providing

for punitive damages, basing their  decisions in part on  the

fact that if punitive damages are not available under   10(c)

of  the  NLRA, they  should not  be available  under statutes

modeled after that provision.  See, e.g., Richerson v. Jones,
                                                            

551  F.2d  918,  927  (3d  Cir.  1977)  (noting  that  "close

relationship" between Title VII provision  and NLRA provision

                    

2.  At the time  of the  reporting of the  Senate version  in
October 1970,  the provision of punitive  damages under Title
VII had  not been the subject of  review by the Supreme Court
or any  court of appeals.  See Belton, supra at   13.3 nn.33-
                                            
34.

                             -18-

"provides additional evidence that Congress did not intend to

authorize"  punitive damages under  Title VII); Harrington v.
                                                          

Vandalia-Butler Board of Education, 585 F.2d 192, 196-97 (6th
                                  

Cir. 1978), cert. denied, 441 U.S. 932 (1979); Walker v. Ford
                                                             

Motor  Co., 684 F.2d 1355, 1363-64 (11th Cir. 1982); see also
                                                             

DeGrace v. Rumsfeld, 614 F.2d 796, 808 (1st Cir. 1980).
                   

          The  final   bill,  however,   was  a   product  of

compromise between the Senate and House versions  and did not

include   the  Senate  language   allowing  only   for  "such

affirmative action" as the Secretary deemed appropriate.  The

penalties  in the  House  version of  the  OSH Act  had  been

different and stronger than those in the Senate version.  The

House bill had  called for civil  and criminal penalties  for

employers who discriminated against  employee whistleblowers.

See Conf.  Rep. No. 1765, supra, at  39.  The final language,
                               

making specific  the jurisdiction  of the district  courts in

actions  brought  by the  Secretary  and  allowing courts  to

provide "all appropriate  relief," emerged from  a conference

committee.

          One might argue, perhaps,  that the substitution of

the  phrase "all  appropriate relief"  for "such  affirmative

action"  evinced  merely  careless  drafting  rather  than  a

legislative intent  to broaden  the remedies available.   The

conference report says nothing about an intent to broaden the

Senate's remedies.   Nonetheless,  there is a  significant   

                             -19-

and obvious     distinction between  the right  to order  the

offender  "to  take  such  affirmative action  to  abate  the

violation  as  the  Secretary  deems  appropriate,  including

. . ."  and authorizing  a  court "to  order all  appropriate

relief, including . . . ."   The final bill was a  product of

compromise      the Senate  allowed  the  Secretary to  bring

causes of action in the district courts; the House gave up on

criminal penalties.  In  this atmosphere of "substantial give

and  take," see 116 Cong. Rec. 42,200 (1970) (remarks of Rep.
               

Perkins),  reprinted in  Legislative History  at 1200,  it is
                                            

hardly obvious,  where different language was  used, that the

conference committee desired merely  to transfer to a federal

court the exact same set  of remedies the Senate gave  to the

Secretary  of Labor in its earlier version.  Indeed, it would

seem  inconsistent to assume, on the  one hand, that Congress

intends to incorporate an entire remedial scheme when it uses

a term of art in a statute, see, e.g., Richerson, 551 F.2d at
                                                

927, but to  assume that,  on the other  hand, when  Congress

omits  the term of art and adopts different language, that it

did so inadvertently.

          Choice of the  terminology "all appropriate relief"

suggests that Congress  might have been  looking more to  the

language of the Labor-Management Reporting and Disclosure Act

of 1959, which outlines a "bill of rights" for union members,

29  U.S.C.   411(a), and  provides that actions for violation

                             -20-

of those rights may be had to recover "such relief (including

injunctions) as  may be appropriate."   29 U.S.C.    412.  At

the time  of the passage  of the OSH  Act, the only  court of

appeals that had ruled on the issue had held that 29 U.S.C.  

412  allowed for  punitive  damages.   International Bhd.  of
                                                             

Boilermakers v.  Braswell, 388 F.2d 193,  199-201 (5th Cir.),
                         

cert. denied, 391 U.S.  935 (1968).3   If we were to  presume
            

that the language of   11(c) was modeled after previous labor

legislation,  the similarity  to the  language of  the Labor-

Management Reporting and Disclosure Act of 1959 would support

our decision here.

          We  cannot  find,  therefore,  in  the  legislative

history  of the OSH Act  any "clear direction"  that the term

"all appropriate relief"  was intended to deny  to the courts

remedial powers to award compensatory and punitive damages in

a  cause of  action analogous  to an  intentional tort.   See
                                                             

Smith, 461 U.S. at 48-49 ("As a general matter, we discern no
     

reason why  a person  whose federally guaranteed  rights have

been  violated should  be granted  a more  restrictive remedy

                    

3.  Other courts  of  appeals that  have since  ruled on  the
issue  are in  agreement.   See, e.g.,  Cooke v.  Orange Belt
                                                             
Dist. Council, 529 F.2d  815, 820 (9th Cir. 1976);  Morrissey
                                                             
v.  National Maritime  Union, 544  F.2d 19,  24-25 (2nd  Cir.
                            
1976); Keene v. IUOE  Local 624, 569 F.2d 1375,  1381-1382, &amp;
                               
n.8 (5th  Cir. 1978); see  also International  Bhd. of  Elec.
                                                             
Workers v.  Foust,  442 U.S.  42,  47 n.9  (1979)  (reserving
                 
decision on this point).

                             -21-

than   a  person   asserting  an   ordinary  tort   cause  of

action.").4

          We conclude, in accordance  with the meaning of the

same words as used  in Franklin, that the statutory  power to
                               

award  "all  appropriate  relief"  gave  the  district  court

authority, where such relief is in fact appropriate, to award

compensatory  and  even  such  traditional  other  relief  as

exemplary damages.  That authority  would be broad enough  to

support  an award  of twice  the employees' pay  provided the

facts and circumstances of this case  justified such an award

                    

4.  Cf.  Individuals  with  Disabilities  Education  Act,  20
       
U.S.C.     1401-1485, which  requires participating state and
local  educational    agencies "to  assure  that  handicapped
children  and  their  parents  or  guardians  are  guaranteed
procedural safeguards  with respect to the  provision of free
appropriate public  education" to such  handicapped children.
20  U.S.C.    1415(a). This  procedural framework  offers the
parents an opportunity  to contest any  decision made by  the
state  regarding the  child's identification,  evaluation, or
educational  placement   through  appropriate  administrative
procedures  and, if necessary, in state or federal court.  In
such civil actions, the court "shall grant such relief as the
court determines is appropriate."  20 U.S.C.   1415(e)(2).
     Courts have split  in determining  whether this  statute
allows  for punitive damages.  Cf. Marvin H. v. Austin Indep.
                                                             
Sch. Dist., 714  F.2d 1348, 1356 (5th Cir.  1983) (procedural
          
focus of Act  means that relief under   1415(e)(2) "generally
includes  only  prospective  relief"  and  does  not  include
compensatory or punitive damages); Woods on behalf of T.W. v.
                                                          
New  Jersey Dept.  of Educ.,  796 F.  Supp. 767,  776 (D.N.J.
                           
1992) (punitive damages available); see  also Burlington Sch.
                                                             
Comm.  v.  Mass. Dept.  of Educ.,  471  U.S. 359,  369 (1985)
                                
("ordinary meaning of these  words [to 'grant such  relief as
the   court  determines   is   appropriate']  confers   broad
discretion on the court").

                             -22-

as  additional  compensation  and  as  deserved  punitive  or

exemplary damages.

                              B.

          Our final  inquiry,  then,  is  whether  the  court

abused its discretion in deciding  on this record that double

damages  relief  was "appropriate,"    bearing  in mind  that

determination  of the  amount  of damages  "falls within  the

sound  judgment and discretion  of the factfinder."   Soto v.
                                                          

United States, 11 F.3d 15, 18 (1st Cir. 1993).  
             

          Here, accepting the court's findings of fact  which

we  think were not clearly erroneous, we cannot say the award

was unreasonable.   There  was evidence that  both Richardson

and  Roche   incurred  monetary   losses  because   of  their

discharges  in addition to their lost back pay.  The district

court stated that a portion of the award  covered prejudgment

interest, which, depending on the interest rate chosen by the

court, could itself amount to more than 35% of the back wages

owed.

          In   addition,   the  court   concluded   that  the

defendant's  conduct,  "both  in  and  out  of  court,  [was]

consistently  brash,"  suggesting  a  belief  that  exemplary

damages were in  order.  The  court found that  Cambridgeport

had intentionally retaliated against Richardson and had fired

Roche as an example to other employees.  The court also noted

that  its "general picture" of  the defendant was informed by

                             -23-

the  testimony  of   a  Labor  Department  investigator   who

testified  that, during the  Secretary's investigation of the

employees' termination, a  member of Cambridgeport management

had offered the investigator  a case of wine, possibly  in an

attempt to influence the  investigation.  Moreover, the court

found that Cambridgeport during  trial had revealed itself as

"a  tough  outfit" that  "more  than  passively observed;  it

supervised  its witnesses."   Given  these findings,  and the

conduct of the defendant as assessed by the court,  the court

did not exceed  its discretion  in awarding  double back  pay

damages.

          Affirmed.  Costs to appellee.  
                                      

                             -24-
