Date: SEP 19 1988
Case No. 87-ERA-29

In the Matter of

RONALD COWAN,
    Complainant

    v.

BECHTEL CONSTRUCTION, INC.,
    Respondent

Mary Ann Foster, Esq.
    3061 Johnson Avenue
    San Luis Obispo, CA 93406
       For the Complainant

Daniel R. Sovocool, Esq.
    Two Embarcadero Center
    San Francisco, CA 94111
       For the Respondent

Before: ALEXANDER KARST
    Administrative Law Judge

   This matter arises from a complaint brought pursuant to the Energy Reorganization Act, 42 U.S.C. § 5851 (hereinafter "ERA"). Complainant Ronald Cowan alleges that respondent Bechtel Construction, Inc. (Bechtel), violated provisions of the ERA by failing to rehire him for a position as an electrician. Bechtel moved for summary judgment on the ground that Mr. Cowan was not an employee at the time the allegedly discriminatory conduct occurred, and that consequently the Department of Labor lacks subject matter

jurisdiction over the complaint. Both parties presented written submissions and oral argument supporting their respective positions, all of which have been considered.

   Section 210 of the ERA specifically extends its protection only to "employees." Complainant was not in Bechtel's employ for some six months prior to its failure to rehire him, and, in fact, a settlement agreement resulting from a previous ERA complaint filed by Mr. Cowan explicitly provided that the agreement was not to be interpreted as a guarantee of future employment with the corporation. Although complainant argues that he should be considered an employee despite the fact that he was not presently working for Bechtel because of his prior intermittent employment relationship with the corporation, neither the ERA's legislative history nor any pertinent legal precedent support the argument that the terms of the ERA were intended to be so liberally construed. Accordingly, I find that Ronald Cowan was not an employee entitled to protection of the ERA at the time the alleged discriminatory conduct occurred. Consequently, because the Department of Labor lacks subject matter jurisdiction over this complaint, respondent's motion for summary judgment is hereby granted.

       ALEXANDER KARST
       Administrative Law Judge

San Francisco, CA