U.S. Department of Labor      Administrative Review Board
                              200 Constitution Avenue, N.W.       
                              Washington, D.C. 20210


In The Matter of

OWEN MCCAFFERTY, DENNIS MALONEY,          ARB CASE NO. 96-144
SEAN KILBANE, TERRY McLAUGHLIN,
SEAN McCAFFERTY, and ROBERT PROHASKA,    (ALJ CASE NO. 96-ERA-6)
          COMPLAINANTS,                  DATE: JUL 15 1996

     v.

CENTERIOR ENERGY,
          RESPONDENTS.


BEFORE:   THE ADMINISTRATIVE REVIEW BOARD[1]


                     PRELIMINARY ORDER

     On June 11, 1996, 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 (1988 and Supp.  V 1993), as amended by the
Comprehensive National Energy Policy Act of 1992 (CNEPA), Pub. 
L. No. 102-486, 106 Stat. 2776, 3123.  The ALJ found in favor of
all Complainants, and recommended various forms of relief,
including reinstatement in accord with his instructions back pay,
removal of the denial of access flag from the personnel records
of Complainants, and interest on the back pay awards.  R. D. and
O. at 21.  The ALJ also ordered Respondent Centerior Energy
(Centerior) to pay Complainants' costs and expenses, including
attorney's fees reasonably incurred.  Id. The ALJ allowed
Complainants thirty days within which to submit their application
for fees and costs and Centerior ten days in which to respond. 
Id. Thus, the specific amount of attorney's fees and costs
owed has not yet been ordered by the ALL A final decision on the
merits of the R. D. and O. must await a decision by the Board on
the substance of this case.  In 1992 the employee 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:

[PAGE 2]

     Upon the conclusion of [a public hearing before an ALJ] and
     the issuance of a recommended decision that the 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 (H)
     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 1993).[2]

     Thus, the amended ERA requires a preliminary order enforcing
the R. D. and O. provisions against Centerior regarding 
abatement, reinstatement, back pay, and attorney's fees and
costs.  See Varnadore v. 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.

     Therefore, Centerior Energy is preliminarily ordered to:

     1) Reinstate Complainants in accordance with the directives
of the R. D. and O. at pages 15-16.

     2)   Pay Complainants back pay in accord with the directives
of the R. D. and 0. at pages 16-20, together with interest on the
back pay in accord with the directive of the R. D. and 0. at page
21.

     3) Remove denial of access flags from the records of all
Complainants.


[PAGE 3]
     Once the ALJ has issued a Recommended Supplemental Decision
and Order concerning the payment of costs and expenses, including
attorney's fees, the Board will supplement this preliminary
order.

     SO ORDERED.


                                   DAVID A. O'BRIEN
                                   Chair

                                   KARK J. SANDSTROM
                                   Member

                                   JOYCE D. MILLER
                                   Alternative Member

[ENDNOTES]

[1]  On April, 17, 1996, Secretary's Order 2-96 was signed
delegating jurisdiction to issue final agency decisions under the
environmental and nuclear whistleblower statutes and the
regulations at 29 C.F.R. Part 24, to the newly created
Administrative Review Board. 61 Fed. Reg. 19978 (May 3,
1996)(copy attached).

     Secretary's Order 2-96 contains a comprehensive list of the
statutes, executive order and regulations under which the Board
now issues final agency decisions.  A copy of the final
procedural revisions to the regulations (61 Fed. Reg. 19982),
implementing this reorganization is also attached.

[2]  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.