U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB CASE NO. 98-042
ALJ CASE NO. 98-ERA-7
DATE: May 4, 1998
In the Matter of:
JOHN DEGOSTIN,
COMPLAINANT,
v.
BARTLETT NUCLEAR, INC.,
and
NORTHEAST UNTILITIES COMPANY,
RESPONDENTS.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL DECISION AND ORDER
The Administrative Law Judge (ALJ) submitted a Recommended Order of
Dismissal (R. O.) in this case arising under the employee protection provision of the Energy
[Page 2]
Reorganization Act of 1974, as amended (ERA), 42 U.S.C. §5851 (1988 and Supp. V 1993),
recommending that the complaint be dismissed for failure to file a timely request for a hearing. We
agree with the ALJ that Complainant did not file a timely request for a hearing and the complaint
will be dismissed.
BACKGROUND
Complainant filed a complaint under the ERA against both Bartlett Nuclear,
Inc. and Northeast Utilities Company on August 25, 1997. The Occupational Safety and Health
Administration (OSHA) issued separate determination letters on October 14, 1997 with respect to
the complaint against each of the Respondents, finding that Complainant had not been discriminated
against. Each letter notified Complainant that, if he sought a hearing on his complaint he was
required to file a request for a hearing with the Chief Administrative Law Judge "within five
(5) calendar days of receipt of [the determination] letter . . . by facsimile, overnight/next day delivery
mail or telegram . . . ."1 Also on
October 14, 1997, OSHA referred the complaint to the Office of Administrative Law Judges, and
the ALJ issued a hearing notice and pre-hearing order on October 28, 1997.
1 OSHA's correspondence to
Complainant was sent by certified mail. By letter dated November 20, 1997 addressed to the ALJ, OSHA
indicates that the certified letters were not claimed by Complainant after failed attempts at delivery on
October 17, October 21 and November 2, 1997, at which point the materials were returned to OSHA by
the Postal Service. OSHA then forwarded the materials to Complainant by regular mail. According to
correspondence from Complainant's attorney to the ALJ dated November 18, 1997, Complainant received
the OSHA determination letter "on or about November 9, 1997."
2 In order to avoid confusion in the
future, the Office of Administrative Law Judges or the ALJ to whom a case is assigned should assure that
a timely request for a hearing has been filed before issuing a hearing notice and pre-hearing order.
3 OSHA faxed a copy of
Complainant's counsel's November 18 letter to the ALJ on Nov. 20, 1997. We will assume that letter
was sufficient to meet the requirements of the regulations to file a request for a hearing and have used
that date to determine whether the request was timely.
4 Effective March 11, 1998, the
filing deadline in ERA whistleblower cases was changed to require filing within five business
days of the receipt of the OSHA determination letter. 63 Fed. Reg. 6622 (Feb. 9, 1998), to be codified
at 29 C.F.R. §24.4(d)(2). However, the instant complaint was filed while the prior time limitation
was in effect.
5 In the recommended order below,
the ALJ carried-over the filing limitation until the next business day, Monday, November 17, 1997.
However, as noted above, the 29 C.F.R. Part 24 regulations in effect at the time of these events required
filing within five calendar days.