DATE: June 28, 1991
CASE NO. 85-ERA-0022

IN THE MATTER OF

JAMES E. WELLS, JR.,
   COMPLAINANT,

    v.

KANSAS GAS & ELECTRIC CO.,
    RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

    I issued a Final Decision and order in this case arising under the employee protection provision of the Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C. § 5851 (1988), on March 21, 1991, finding that Respondent violated the ERA when it discharged Complainant in 1985 after reinstating him in October 1984 as ordered by the Secretary in Wells v. Kansas Gas & Electric Co., Case No. 83-ERA-12, Sec. Dec., June 14, 1984, aff'd, Kansas Gas & Electric Co. v. Brock, 780 F.2d 1505 (10th Cir. 1985), cert. denied, 478 U.S. 1011 (1986). I ordered Respondent to reinstate Complainant to the same or a substantially equivalent position to the one he held when he was

discharged,¹ to pay Complainant back pay with interest, from the date of discharge to the date of reinstatement, less interim earnings, and to pay Complainant's attorney's fees and costs.

    The Wolf Creek Nuclear Operating Corporation (WCNOC)² filed a request on April 26, 1991, which was received by the Secretary on May 1, 1991, for a hearing on remedial issues, asserting, among other things, that there are no positions available in which Complainant can be reinstated and that the record should be supplemented to determine the amount of back pay due. On May 3, 1991, Respondent filed a petition for review of my Final Decision and Order of March 21, 1991, in the United States Court of Appeals for the Tenth Circuit. Kansas Gas & Electric Co. v. Martin, No. 91-9526. Complainant responded, opposing WCNOC's request on May 8, 1991, and Kansas Gas & Electric submitted a filing on May 20, 1991, joining in WCNOC's request for a hearing. In addition, on June 7, 1991, WCNOC moved before me to stay the March 21 order until the remedial issues have been resolved, Respondent also moved for a stay on June 11, 1991, Complainant responded to both stay motions on June 14, 1991.

    The filing of the petition for review in the court of appeals divests the Secretary of jurisdiction. Accordingly, the Request for Hearing on Remedial Issues and the Motions for Stay pending determination by the Secretary of the asserted remedial issues are DENIED.

    SO ORDERED.

       LYNN MARTIN
       Secretary of Labor

Washington, D.C.

¹ Complainant was a quality control inspector in 1985.

² WCNOC represents that it has assumed operation from Kansas Gas & Electric of the nuclear power plant where Complainant was employed.