Case No. 86-ERA-5 & 6

In the Matter of

KEITH RIEVLEY and
MIKE MAENDELY

   v.

PULLMAN POWER PRODUCTS AND
GEORGIA POWER COMPANY

    This is a proceeding under the Energy Reorganization Act of 1974, as amended, 42 U.S.C. § 5851 and its implementing regulations at 29 C.F.R. Part 24.

    On September 11, 1985 Petitioners Rievley and Maendely were discharged by Pullman Power Products, a subcontractor at Georgia Power Company's nuclear Plant Vogtle. On october 11, 1985, Petitioners filed a complaint, by mail, with the Savannah Office of the Employment Standards Administration Wage and Hour Division of the Department of Labor (Wage and Hour Division).

    On October 22, 1985, Petitioners were informed by letter that the Wage and Hour Division would take no action on behalf

of their complaint because it was not timely filed.

    On November 3, 1985 this Office received Petitioners' Motion to Remand the instant cases to the Savannah office of the Wage and Hour Division for investigation pursuant to 42 U.S.C. § 5851 and 29 C.F.R. 24.4(b). Petitioners Rievley and Meandely characterize the determination by the Wage and Hour Division that the complaint was not timely as a "clerical error." They contend that the complaint was filed within the 30-day period set forth at 29 C.F.R. § 24.3(b). Because I agree with Petitioners' reading of that Section, their Motion will be granted.

    The filing period applicable in this case is set forth in both statute and regulation. The controlling statute provides:

Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of subsection (a) of this section may, within thirty days after such violation occurs, file (or have any person file on his behalf) a complaint with the Secretary of Labor (hereinafter in this subsection referred to as the "Secretary") alleging such discharge or discrimination. Upon receipt of such a complaint, the Secretary shall notify the person named in the complaint of the filing of the complaint and the Commission.

42 U.S.C. § 5851(b)(1). The regulation implementing this provision states that:

Any complaint shall be filed within 30 days after the occurrence of the alleged violation. For the purpose of determining timeliness of filing, a complaint filed by mail shall be deemed filed as of the date of mailing.

29 C.F.R. § 24.3(b). Although both Sections use language stating that the period begins to run "after" an alleged violation, neither provision gives more specific guidance regarding commencement of the 30-day time frame.

    The Rules of Practice and Procedure for Administrative Hearings Before the office of Administrative Law Judges govern proceedings before this office unless inconsistent with a rule of special application contained in a statute, executive order, or regulation. 29 C.F.R. § 18.1(a). The general rule regarding time computation states:

In computing any period of time under these rules or in an order issued hereunder the time begins with the day following the act, event, or default, and includes the last day of the period, unless it is a Saturday, Sunday or legal holiday observed by the Federal Government in which case the time period includes the next business day.

29 C.F.R. § 18.4(a). Neither 42 U.S.C. § 5851 nor any of the regulations promulgated pursuant to it are in conflict with this rule which establishes a uniform reference point for time computation. Since there are no inconsistent provisions applicable to the instant case, § 18.4(a) is controlling. It is undisputed that Petitioners Rievley and Meandely were discharged on September 11, 1985. Under § 18.4(a) the 30-day filing period began to run on September 12, the next day. Therefore, the thirtieth day was October 11, 1985. Because Petitoners' complaint was filed by mail on that day, it was filed in a timely manner.¹

    The case law cited by Respondents does not change this result. Neither Chardon v. Fernandez, 454 U.S. 6 (1981) nor Delaware State College v. Ricks, 449 U.S. 250 (1980) are on point. Both cases involved questions regarding when causes of action accrued. In the instant case Petitioners, claim accrued on September 11, 1985. However, the controlling rule of procedure explicitly started the 30-day period running on the day after the disputed activity. The inappropriateness of Chardon and Ricks as authority in this proceeding is further illustrated by the fact that in both cases the period by which the statutes of limitation in question had been exceeded was far in excess of one day. Therefore, the applicability of Fed. R. Civ. P. 6(a), a rule closely analagous to § 18.4(a), was not in issue.

    In Stokes v. Pac. Gas & Electric Co., 84-ERA-6 (July 27, 1984) the Administrative Law Judge failed to consider § 18.4(a) in his opinion. Administrative Law Judge Lindeman dismissed Stokes' complaint as untimely. The petitioner had been notified of his termination on October 14, 1983 and filed a complaint on November 14, 1983. The Administrative Law Judge did consider § 18.4(c) which adds 5 days to filing periods when documents are filed by mail, but declined to apply the provision because

¹ The outcome would be the same if Fed. R. Civ. P. 6(a) were applied pursuant to 29 C.F.R. § 18.1(a). It states that in computing any period of time prescribed or allowed by the rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included.