PACIFIC GAS & ELECTRIC CO./
BECHTEL POWER CORP.,
EMPLOYER
BEFORE: THE SECRETARY OF LABOR
ORDER OF REMAND
This matter is before me for review of the July 27, 1984,
recommended Order Granting Motion to Dismiss (R.O.) issued by
Administrative Law Judge (ALJ) Alfred Lindeman pursuant to Section
210 of the Energy Reorganization Act of 1974 (ERA or the Act),
42 U.S.C. § 5851 (1982), and the regulations issued thereunder at
29 C.F.R. Part 24 (1986).
Section 5851 of the ERA prohibits an employer from discharging
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or otherwise discriminating against any employee with respect to
the employee's compensation, terms, conditions or privileges of
employment because the employee has engaged in certain conduct
protected by ERA. Both the Act and the implementing regulations
require that a complaint alleging a violation of Section 5851 be
filed within thirty days after the occurrence of the alleged
violation. 42 U.S.C. § 5851 (b)(2)(A); 29 C.F.R. § 24.3(b).
The ALJ's order recommended dismissing this complaint because
it was not filed within thirty days of the alleged violation and
because the Complainant failed to establish any basis for tolling
or otherwise excusing the statutory time requirements. The alleged
violation in this case, notification from Lead Pipe Engineer,
Leonard B. Mangoba, to Complainant, that Complainant was to be
terminated that day, occurred on Friday, October 14, 1983. R.O.
at 2; Mangoba Affidavit. It is undisputed that Complainant filed
his complaint by letter dated Monday, November 14, 1983. R.O. at 2;
Ex. A.
1 I take administrative notice that in
1983, November 14 fell on a Monday.
2 The Part 18 rules for practice
before the Office of Administrative Law Judges are applicable in accordance
with 29 C.F.R. § 18.1(a) (1986).
3Fed. R. Civ. 6(a) is in accord on
this point. See also Wirtz v. Local Union 611, International Hod Carriers' Building
and Common Laborers' Union of America, 229 F. Supp. 230 (D. Conn.
1964) (the last day of a period of time prescribed or allowed by
these rules [Fed. R. Civ. P.] shall be included unless it is a
Sunday, thereby permitting the next business day to be included
in the computation of a period of time for filing suit which
would otherwise end on Sunday).
4The record reflects that the
Complainant was willing to withdraw his complaint or to have it dismissed without prejudice.
See letter from Complainant's counsel to ALJ Lindeman, dated July 6,
1984. In considering such a request the parties and the ALJ are
referred to my order in Nolder v., Raymond Kaiser Engineers, Inc.,
Case No. 84-ERA-5, issued June 28, 1985.