DATE:  May 31, 1995
CASE NO. 95-ERA-0011

IN THE MATTER OF

DAVID G. JOHNSON,

          COMPLAINANT,

     v.

BECHTEL CONSTRUCTION CO.,

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR

                             PRELIMINARY ORDER

     This case arises under the Energy Reorganization Act of 1974
(ERA), 42 U.S.C.A. § 5251 (West 1994), as amended by Section
2902 of the Comprehensive National Energy Policy Act of 1992
(CNEPA), Pub. L. No. 102-486, 106 Stat. 2776 (Oct. 24, 1992). 
The Administrative Law Judge (ALJ) issued an Interim Decision and
Order (I. D. and O.) and a Recommended Decision and Order (R. D.
and O.) holding that Respondent Bechtel Construction Company
(Bechtel) refused to rehire Complainant David Johnson to work
during an "outage" [1]  because Johnson had expressed concerns
related to nuclear safety during an earlier period of employment. 
Accordingly, the ALJ recommended awarding "back wages which would
have been paid to [Johnson] had he been rehired for the 1994-1995
outage."  A briefing schedule has been issued to provide the
parties an opportunity to file briefs in support of or in
opposition to the R. D. and O.
     The ERA was amended in 1992 to, among other things, require
the Secretary to order interim relief as soon as an ALJ issues a
recommended decision finding that the complaint has merit.  CNEPA
§ 2902(c).  The amendment is applicable to this complaint,
which was filed after the effective date of the CNEPA, October
24, 1992.  Pursuant to 42 U.S.C.A. § 5251(b)(2)(A), I must
at this 
[PAGE 2]
time issue "a preliminary order providing the relief prescribed
[at 42 U.S.C.A. § 5251(b)(2)(B)] but may not order
compensatory damages pending a final order."  
     The relief to which a complainant is entitled in a
preliminary order includes "affirmative action to abate the
violation" and reinstatement to the complainant's former position
"together with the compensation (including back pay), terms,
conditions, and privileges of his employment."  42 U.S.C.A. 
§ 5251(b)(2)(B).  The ALJ found in this case that Johnson
was "an admitted seasonal employee hired by Respondent during
'outage' periods."  I. D. and O. at 3.  Accordingly, the ALJ
ordered back pay, but not reinstatement.  Id. at 8.
     I agree that reinstatement is not appropriate for a seasonal
employee such as Johnson and find that the back wages ordered by
the ALJ are appropriate.  See R. D. and O. at 2.  In 
addition, I find that Johnson is entitled to a preliminary order
abating the violation since it is possible that he could apply to
be hired by Bechtel for some future outage.  Accordingly, I shall
order that Bechtel may not consider Johnson's protected
activities when deciding whether to hire him.
     A final order will be issued in this case in the future.
                                   ORDER
     Respondent, Bechtel, immediately shall pay to Complainant
Johnson, back pay in the amount of $13,177.47.  If, in the
future, Johnson seeks to be rehired by Bechtel, the company shall
not consider Johnson's earlier protected activities in deciding
whether to hire him.  
     SO ORDERED.


                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.




[ENDNOTES]
           
[1]   An "outage" is a period of increased employment during
which a nuclear reactor is shut down for refueling, maintenance
and general repairs.  Nichols v. Bechtel Construction,
Inc., Case No. 87-ERA-0044, Dec. and Ord. of Rem., Oct. 26,
1992, slip op. at 3 n.3, aff'd sub nom. Bechtel Construction
Co. v. Secretary of Labor, 50 F.3d 926 (11th Cir. 1995).