DOL Home > OALJ > Whistleblower > Johnson v. Bechtel Construction Co., 95-ERA-11 (Sec'y May 31, 1995) |
DATE: May 31, 1995 CASE NO. 95-ERA-0011 IN THE MATTER OF DAVID G. JOHNSON, COMPLAINANT, v. BECHTEL CONSTRUCTION CO., RESPONDENT. BEFORE: THE SECRETARY OF LABOR PRELIMINARY ORDER This case arises under the Energy Reorganization Act of 1974 (ERA), 42 U.S.C.A. § 5251 (West 1994), as amended by Section 2902 of the Comprehensive National Energy Policy Act of 1992 (CNEPA), Pub. L. No. 102-486, 106 Stat. 2776 (Oct. 24, 1992). The Administrative Law Judge (ALJ) issued an Interim Decision and Order (I. D. and O.) and a Recommended Decision and Order (R. D. and O.) holding that Respondent Bechtel Construction Company (Bechtel) refused to rehire Complainant David Johnson to work during an "outage" [1] because Johnson had expressed concerns related to nuclear safety during an earlier period of employment. Accordingly, the ALJ recommended awarding "back wages which would have been paid to [Johnson] had he been rehired for the 1994-1995 outage." A briefing schedule has been issued to provide the parties an opportunity to file briefs in support of or in opposition to the R. D. and O. The ERA was amended in 1992 to, among other things, require the Secretary to order interim relief as soon as an ALJ issues a recommended decision finding that the complaint has merit. CNEPA § 2902(c). The amendment is applicable to this complaint, which was filed after the effective date of the CNEPA, October 24, 1992. Pursuant to 42 U.S.C.A. § 5251(b)(2)(A), I must at this
[PAGE 2] time issue "a preliminary order providing the relief prescribed [at 42 U.S.C.A. § 5251(b)(2)(B)] but may not order compensatory damages pending a final order." The relief to which a complainant is entitled in a preliminary order includes "affirmative action to abate the violation" and reinstatement to the complainant's former position "together with the compensation (including back pay), terms, conditions, and privileges of his employment." 42 U.S.C.A. § 5251(b)(2)(B). The ALJ found in this case that Johnson was "an admitted seasonal employee hired by Respondent during 'outage' periods." I. D. and O. at 3. Accordingly, the ALJ ordered back pay, but not reinstatement. Id. at 8. I agree that reinstatement is not appropriate for a seasonal employee such as Johnson and find that the back wages ordered by the ALJ are appropriate. See R. D. and O. at 2. In addition, I find that Johnson is entitled to a preliminary order abating the violation since it is possible that he could apply to be hired by Bechtel for some future outage. Accordingly, I shall order that Bechtel may not consider Johnson's protected activities when deciding whether to hire him. A final order will be issued in this case in the future. ORDER Respondent, Bechtel, immediately shall pay to Complainant Johnson, back pay in the amount of $13,177.47. If, in the future, Johnson seeks to be rehired by Bechtel, the company shall not consider Johnson's earlier protected activities in deciding whether to hire him. SO ORDERED. ROBERT B. REICH Secretary of Labor Washington, D.C. [ENDNOTES] [1] An "outage" is a period of increased employment during which a nuclear reactor is shut down for refueling, maintenance and general repairs. Nichols v. Bechtel Construction, Inc., Case No. 87-ERA-0044, Dec. and Ord. of Rem., Oct. 26, 1992, slip op. at 3 n.3, aff'd sub nom. Bechtel Construction Co. v. Secretary of Labor, 50 F.3d 926 (11th Cir. 1995).