DATE: December 11, 1995
CASE NO. 95-ERA-4


IN THE MATTER OF

EARL VANDORN KEENE

          COMPLAINANT,

     v.

EBASCO CONSTRUCTORS, INC.
A/K/A RAYTHEON CONSTRUCTORS,
K/N/A RAYTHEON ENGINEERS AND  
CONSTRUCTORS, INC.

          RESPONDENTS.


BEFORE:   THE SECRETARY OF LABOR


                             PRELIMINARY ORDER

     On September 29, 1995, the Administrative Law Judge (ALJ)
issued a Recommended Decision and Order (R. D. and O.) in this
case arising under the Energy Reorganization Act of 1974 (ERA),
42 U.S.C. § 5851 (Supp. IV 1992), as amended by the
Comprehensive National Energy Policy Act of 1992 (CNEPA), Pub. L.
No. 102-486, 106 Stat. 2776, 3123.  On October 10, 1995, the ALJ
issued an Errata.  A final decision on the merits of the R. D.
and O. must await a Secretarial decision on the substance of this
case, which will be issued in due course.     
     In 1992 the whistleblower provision of the ERA was amended
in several respects by Section 2902 of the CNEPA.  The amended
provision is applicable to this case, which was filed subsequent
to the effective date of the CNEPA.  It provides in pertinent
part:
     Upon the conclusion of [a public hearing before an ALJ]
     and the issuance of a recommended decision that the 
[PAGE 2]
complaint has merit, the Secretary shall issue a preliminary
order providing the relief prescribed in subparagraph (B), but
may not order compensatory damages pending a final order.

* * * * 
                                    
       (B) If, in response to a complaint filed under
     paragraph (1), the Secretary determines that a
     violation of subsection (a) of this section has
     occurred, the Secretary shall order the person who
     committed such violation to (I) take affirmative action
     to abate the violation, and (ii) reinstate the
     complainant to his former position together with the
     compensation (including back pay), terms, conditions,
     and privileges of his employment, and the Secretary may
     order such person to provide compensatory damages to
     the complainant.  If an order is issued under this
     paragraph, the Secretary, at the request of the
     complainant shall assess against the person against
     whom the order is issued a sum equal to the aggregate
     amount of all costs and expenses (including attorneys'
     and expert witness fees) reasonably incurred, as
     determined by the Secretary, by the complainant for, or
     in connection with, the bringing of the complaint upon
     which the order was issued.

42 U.S.C. § 5851(b)(2)(A) & (B) (1988 and Supp. V).[1]   
     The plain meaning of Section 5851(b)(2)(A) & (B) requires a
preliminary order enforcing the R. D. and O. provisions regarding
backpay, interest and costs, and the expungement of Complainant s
employment record.  See C. D. Varnadore Oak Ridge National
Laboratory and Lockheed Martin Energy Systems, Inc., Case
Nos. 94-CAA-2, 94-CAA-3, Preliminary Order, September 11, 1995, slip
op. at 5.   
     The ALJ issued a Recommended Supplemental Decision and Order
(R. S. D. and O.) concerning the payment of costs and expenses,
included attorney fees, on November 28, 1995.  The ALJ did not
award attorney fees and costs because Complainant did not respond
to the Order to file a petition itemizing such expenses.  Due to
Complainant s failure no preliminary award of such expenses is
appropriate.  An additional opportunity for payment of cost and
expenses, including attorney fees, will be given upon issuance of
my final order in this matter, if Complainant prevails.
        Therefore Respondent is preliminarily ordered to:
     1) Pay Complainant back pay in the amount of ,437.72 with
interest from the date the payments were due as wages until the 
[PAGE 3]
actual date of payment, in accordance with 26 U.S.C. § 6221;
     2) Expunge from Complainant s record the  fair  appraisal
given him upon his termination in March, 1994; and
     3) No preliminary order of costs or expenses is awarded.
        SO ORDERED.



                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.
 


[ENDNOTES]
           
[1] 
  Subparagraph B was not amended by the CNEPA.  On March 16,
1994, the Secretary of Labor proposed regulations to
implement the CNEPA amendments to the ERA.  59 Fed. Reg. 12506. 
These regulations have not yet been finalized.