DATE:  August 31, 1992
CASE NO. 86-ERA-36


IN THE MATTER OF

RONALD GOLDSTEIN,

          COMPLAINANT,

     v.

EBASCO CONSTRUCTORS, INC.,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR 


                            ORDER DENYING STAY
     Respondent has moved for an administrative stay pending
review by the United States Court of Appeals for the Fifth
Circuit of the April 7, 1992, Decision and Order (D. and O.)
issued in this case.  The D. and O. held that Respondent
discriminatorily laid Complainant off in violation of the
employee protection provision of the Energy Reorganization Act of
1974, as amended (ERA), 42 U.S.C. § 5851 (1988), and ordered
Respondent to reinstate Complainant and to pay him back pay as
provided in a stipulation of the parties.  Upon consideration, I
do not find that justice requires that I grant a stay of the 
D. and O. and, therefore, Respondent's motion is denied.  
5 U.S.C. § 705 (1988).
      Respondent's motion, unaccompanied by affidavits or other
supporting documents, raises no more than a possibility that it
will succeed on the merits and alleges harm only from the
financial costs and burden of employing Complainant during the
pendency of the appeal. [1]   Neither a mere possibility of
success 
[PAGE 2]
on appeal nor certain economic loss in the interim is sufficient
to warrant a stay.  See Landmark Land Co. v. Office of
Thrift Supervision, 948 F.2d 910, 914 (5th Cir. 1991);
Instant Air Freight Co. v. C.F. Air Freight, Inc., 882
F.2d 797, 800-01 (3d Cir. 1989); State of Ohio ex rel.
Celebrezze v. NRC, 812 F.2d 288, 290 (6th Cir. 1987);
Rexroat v. City of New Albany, Indiana, Case No. 85-WPC-3,
Sec. Order Denying Stay, Oct. 6, 1986, slip op. at 2-3;
see also Spinner v. Yellow Freight System,
Inc., Case No. 90-STA-17, Sec. Order Denying Application for
Stay, Sept. 25, 1991, slip op. at 5, citing Commonwealth-Lord
Joint Venture v. Donovan, 724 F.2d 67, 68 (7th Cir. 1983);
OFCCP v. University of North Carolina, Case No. 84-
OFC-20, Sec. Order Denying Stay, Apr. 25, 1989, slip op. at 7, citing
Virginia Petroleum Jobbers Ass'n v. Federal Power Comm'n,
259 F.2d 921, 925 (D.C. Cir. 1958). [2] 
     Respondent points out that the law of the Fifth Circuit is
that internal complaints are not a protected activity under the
ERA, and asserts that therefore Respondent is likely to succeed
on the merits.  However, as discussed in the D. and O. at II, I
believe the Fifth Circuit should have an opportunity to
reconsider this position, taking into consideration contrary
conclusions reached by other circuits [3]  and the full
exposition of the legislative history of the ERA in the D. and O. 
Respondent's success is far from probable in these circumstances.
     I have also considered the other factors set forth in the
cases cited above, the prospect of harm to others which could
result from a stay and the public interest at stake here, and am
convinced that a stay is not justified, given the potential harm
to Complainant and the public interest in administration and
enforcement of the ERA.
     Complainant filed an Opposition to Respondent's Motion for
Stay and also filed, as part of the same document, a Motion for
Enforcement requesting the Secretary to initiate enforcement
action under 42 U.S.C. § 5851(d).  Complainant's motion is
denied without prejudice to his right to renew his request [4] 
after Respondent has had a reasonable period of time after receipt of
this order to comply with the D. and O. 
     Accordingly, Respondent's application for a stay of my 
April 7, 1992, Decision and Order IS DENIED.
     SO ORDERED.



                              LYNN MARTIN
                              Secretary of Labor

Washington D.C.



[ENDNOTES]
           
[1]   Respondent asserts that the position Complainant held "was
eliminated upon completion of the construction of the South Texas
Nuclear Power Project . . . ."  Respondent's Motion for Stay of 
Decision and Order at 3.  The April 7 Order requires Respondent to
reinstate Complainant "to his former position or a substantially
equivalent position with the same terms, benefits, conditions and
privileges he would have enjoyed if Respondent had not laid him
off on April 11, 1986."  

[2]   In a later filing Respondent asserts that it does meet the
four part test set out in these cases.  

[3]   The Sixth Circuit also has agreed with the Secretary's
position.  See Jones v. TVA, 948 F.2d 258, 264 (6th
Cir. 1991).

[4]   Any such request should be made to the Solicitor of Labor 
who represents the Department in enforcement proceedings.  Under
42 U.S.C. § 5851(e), a complainant also may initiate suit to
require compliance with the D. and O.