U.S. Department of Labor Office of Administrative Law Judges 101 N E. Third Avenue. Suite 500
Ft. Lauderdale. FL 33301
DATE: MAY 4, 1993
CASE NO: 87-ERA-0044
In The Matter of
ROY EDWARD NICHOLS,
Complainant
v.
BECHTEL CONSTRUCTION, INC.
Respondent
Appearances:
ARTHUR W. TIFFORD, ESQ.
For the Complainant
KENNETH R. CASS, ESQ.
WILLIAM F. HAMILTON, ESQ.
For the Respondent
Before: E. EARL THOMAS
District Chief Judge
RECOMMENDED DECISION ON REMAND AND ORDER DENYING
MOTION FOR
RECONSIDERATION OF ORDER DENYING MOTION FOR ADMISSION OF
AFFIDAVIT
TESTIMONY AND DENYING MOTION FOR RE-OPENING OF HEARING
1. Recommended Decision and Order on
Remand
[Page 2]
The instant matter is before the undersigned on
remand from the Secretary for a determination of back pay in this
case arising under Section 210 of the Energy Reorganization Act
of 1974, 42 U.S.C. §5851 (hereinafter "ERA" of the
"Act") and the implementing regulations set forth at 29
C.F.R. Part 24. These provisions, commonly known as the
"whistleblower" provisions, protect employees against
discrimination in employment for attempting to implement the
purposes of the ERA and the Atomic Energy Act, as amended, found
at 42 U.S.C. 2011 et seq. A hearing was held in Miami,
Florida on January 19, 1993 and continued on February 18, 1993,
and all parties were afforded full opportunity to present
evidence and legal argument.
STATEMENT OF THE CASE
In the Secretary's Decision and Order on
Remand, the Secretary concluded that Complainant had engaged in
protected activity under the ERA and that the Employer was aware
of the protected activity at the time Employer chose to lay off
the Complainant. Further, the Secretary found that the
Complainant introduced sufficient evidence to raise an inference
that Complainant's protected activities motivated his being
selected for layoff and, consequently, that Complainant had made
a prima facie case that the Employer violated the ERA.