DOL Home > OALJ > Whistleblower > Johnson v. Bechtel Construction Co., 95-ERA-11 (Sec'y Sept. 28, 1995) |
DATE: September 28, 1995 CASE NO. 95-ERA-0011 IN THE MATTER OF DAVID G. JOHNSON, COMPLAINANT, v. BECHTEL CONSTRUCTION CO., RESPONDENT. BEFORE: THE SECRETARY OF LABOR FINAL DECISION AND ORDER In this case arising under the employee protection provision of the Energy Reorganization Act of 1974 (ERA), as amended, 42 U.S.C.A. § 5851 (West 1994), Complainant, David G. Johnson, alleged that Respondent, Bechtel Construction Company (Bechtel), violated the ERA when it did not rehire him.[1] In an Interim Decision and Order (Interim Order), the Administrative Law Judge (ALJ) found that Bechtel failed to rehire Johnson because of safety complaints he made during an earlier period of employment. The ALJ awarded Johnson back pay in a subsequent Recommended Decision and Order (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. In a Preliminary Order issued on May 31, 1995, I ordered Bechtel immediately to pay the back pay award and required that the company not consider Johnson's protected activities in deciding whether to rehire him in the future. The ALJ's findings of fact (Interim Order at 5-7) are
[PAGE 2] supported by the record and I adopt them. Likewise, I defer to the ALJ's reasonable credibility assessments. The ALJ noted that Bechtel conceded that Johnson engaged in activities protected under the ERA. Interim Order at 4; T. 526-527. I adopt the appended Interim Order and R.D. and O. with the additional finding that Johnson has demonstrated by a preponderance of the evidence that his protected activities were a contributing factor in the decision not to rehire him. I also find that Bechtel did not demonstrate by clear and convincing evidence that it would not have rehired Johnson in the absence of his protected activities. The Preliminary order required Bechtel to pay Johnson back pay of $13,177.47. I affirm that amount as the back pay to which Johnson is entitled. A successful ERA complainant is also entitled to prejudgment interest on a back pay award. Wells v. Kansas Gas & Elec. Co., Case No. 85-ERA-0022, Sec. Dec., March 21, 1991, slip op. at 17 and n.6, appeal dismissed, No. 91-9526 (10th Cir. Aug. 23, 1991). To make Johnson whole, the interest began to accrue on the date he would have received the pay had he been rehired for the 1994-1995 outage. Bechtel contends that the earliest date Johnson would have been hired was December 18, 1994. Affidavit of Bruce T. McKenzie at 2 par. 4. But a different laborer, M. Johnson, was hired for that outage effective December 7, 1994. Any uncertainties in a back pay award are resolved in favor of the successful complainant and against the discriminating party. Nichols v. Bechtel Construction, Inc., Case No. 87-ERA-0044, Final Dec. and Ord., Nov. 18, 1993, slip op. at 10, aff'd. sub nom. Bechtel Construction Co. v. Sec'y of Labor, 50 F.3d 926 (11th Cir. 1995). Accordingly, prejudgment interest on the back pay award shall accrue beginning on the date on which Johnson would have been paid for work that began on December 7, 1994. The interest rate is that for underpayment of Federal income taxes. 26 U.S.C. § 6621 (1988). Johnson appeared pro se and therefore he is not entitled to payment of attorney's fees. He is, however, entitled to payment of the reasonable costs he incurred in bringing the complaint. See 42 U.S.C. § 5851(b)(2)(B). Accordingly, Johnson shall have the opportunity to submit a petition detailing his costs, including any fees for typing, photocopying, mailing, telegrams, long distance telephone calls, and the like. Bechtel shall have the opportunity to respond. Finally, as I found in the Preliminary Order, a successful ERA complainant is entitled to an order of affirmative action to abate the violation. 42 U.S.C.A. § 5851(b)(2)(B). Since outages regularly occur at nuclear plants, I affirm my preliminary finding that Johnson is entitled to an order requiring Bechtel
[PAGE 3] not to consider his protected activities when deciding whether to rehire him in the future. ORDER 1. If it has not already paid, Respondent shall pay Complainant back pay in the amount of $13,177.47. Respondent shall pay Complainant interest on that amount as set out above. 2. Respondent shall not consider Complainant's protected activities when deciding whether to rehire him in the future. 3. Respondent shall pay the reasonable costs incurred by Complainant in bringing this complaint. Complainant shall have 30 days after the issuance of this Order to submit a detailed petition of costs. Respondent shall have 30 days after receipt of the petition to submit a response. The petition and response should be submitted to David A. O'Brien, Acting Director, Office of Administrative Appeals, Room S-4309, 200 Constitution Avenue, N.W., Washington, D.C. 20210. SO ORDERED. ROBERT B. REICH Secretary of Labor Washington, D.C. [ENDNOTES] [1] Johnson was a seasonal employee hired during "outages," T. 8, a period of increased employment at a nuclear plant during which the plant is refueled and numerous repairs are made.