CASE NO. 84-ERA-6

In the Matter of

CHARLES STOKES
    Complainant

    v.

PACIFIC GAS & ELECTRIC CO./
BECHTEL POWER CORP.
    Respondent

    Pursuant to the Order of Remand of the Secretary of Labor, dated February 19, 1987, the parties were ordered to show cause why complainant's requests, dated July 6, 1984, and March 3, 1987, to withdraw the Complaint in this matter without prejudice, should not be granted, and what conditions, if any, should be imposed under the rationale set forth in Nolder v. Raymond Kaiser Engineers, Inc., 84-ERA-5. Respondent's response, dated March 30, 1987, asserted that dismissal without prejudice be conditioned

on reimbursement of respondent's attorney's fees and costs incurred in connection with the Department of Labor ("DOL") proceeding. Complainant's response, dated April 8, 1987, contends that no attorney's fees or costs are properly payable as a condition, because any expenditures by respondent's counsel during the period the matter was before me will be of use to respondent in the State proceeding that is pending. Lastly, respondent filed a reply memorandum, dated April 20, 1987, in which it is argued that respondent could not be certain complainant intended to pursue the request for dismissal until his April 8, 1987, response was filed; respondent also requested that a hearing and briefing schedule be set for consideration of the reasonableness of respondent's attorney's fees and costs. I reject respondent's arguments for several reasons.

    First, I find that the Facts in this case are distinguishable from Nolder, supra. In Nolder, the State action was filed while the DOL action was still pending (actually, before the request for hearing was made), whereas here the complainant did not file his State action until almost a year after he filed his DOL complaint and many months after my July 27, 1984, ruling dismissing the complaint on the ground that it was untimely. It is clear from the authorities cited in Nolder, supra, that the purpose of attaching conditions to a request for voluntary dismissal without prejudice is to alleviate any harm caused to the opposing party. That implies that the cause of action being dismissed was either improperly filed to begin with or continued beyond a point when it reasonably should have been or that the opposing party had thereby incurred costs unnecessarily. None of those factors apply in this case, where there is no evidence that the DOL complaint was anything but a good-faith, non-frivolous filing, and it was thus appropriate and necessary for respondent to defend against it. I therefore find no basis for conditioning the dismissal of the DOL complaint without prejudice on the payment by complainant of any of respondent's legal expenses incurred by defending the merits of the DOL complaint up to July 27, 1984, when I ruled on respondent's motion to dismiss.¹ It must be noted that had either party, their attorneys, or I observed that the 30th day for filing the DOL complaint had fallen on a Sunday, respondent's motion to dismiss would not have been granted; instead, it would have been necessary to rule on complainant's July 6, 1984, request for dismissal, still before the date the contemplated State action had been filed. In that event, I would have found then, as I do now, that since both the DOL and State causes

    Insofar as respondent's post-July 1984 attorney's fees and costs are concerned, I find again that Nolder and the cases cited therein are inapposite, based on the chronology of the filings of the DOL and State actions and the significance of the July 27, 1984 dismissal order. That is, since in this case the DOL complaint had ostensibly been dismissed on July 27, 1984, and, notwithstanding the pendency of the appeal to the Secretary, the State action was filed in October 1984, one would not have anticipated that respondent would have generated any further attorney's fees on the merits of the DOL case.² To the extent that any efforts were expended, however, as indicated above, it is in my judgment-beyond dispute that such efforts will be of substantial benefit in the State action.

    Accordingly, I conclude that no further hearing or filing is warranted in this case. Complainant's request for dismissal without prejudice and without conditions is granted.³

    SO ORDERED.

       ALFRED LINDEMAN
       Administrative Law Judge

Date: 27 APR 1987
San Francisco, California

¹Though it has not been asserted, any suggestion that complainant should bear respondent's legal costs up to that point on the ground that respondent had "prevailed" as of July 27, 1984, is rebutted by the Secretary's reversal of the granting of the motion to dismiss.

² Although under different circumstances it might be argued that complainant should be liable for respondent's legal fees incident to continuing the appeal to the Secretary, I find that on the facts of this case, where respondent's counsel urged that respondent's motion be given precedence over complainant's request for dismissal (see letter from Kennedy Richardson, dated July 13, 1984) and where respondent lost the appeal to the Secretary, there is no basis for claiming attorney's fees or costs related to that appeal.

³As a result of this dismissal, the determination of the Wage and Hour Division is automatically vacated and complainant is time-barred from re-filing a new complaint under 42 U.S.C. §5851. See Nolder, supra, slip opinion at pp. 12, 14.