John E. Ryan,
    Complainant

    v.

Niagara Mohawk Power Corporation,
    Respondent

    Respondent has filed a Motion For Certification of Final Decision requesting that I certify as my final decision the initial determination of the Wage and Hour Division of the Department of Labor, issued on February 27, 1985, finding that the complaint filed by Complainant under section 5851 of the Energy Reorganization Act of 1974 (ERA), 42 U.S.C. § 5851, has no merit. The basis of this motion is the provision in the regulations implementing section 5851 to the effect that a determination by the Wage Hour Administrator that a complaint is without merit "shall become the final order of the Secretary denying the complaint unless within five calendar days of its receipt the complainant files with the Chief Administrative Law Judge a request by telegram for a hearing on the complaint." 29 CFR 24.4(d)(2)(i). Respondent's counsel avers that neither Respondent nor its counsel has received a copy of any such telegram and that he has been advised by the office of

Administrative Law Judges that it also has no record of any such telegram.

    Complainant's counsel has submitted an Affidavit in Opposition to Respondent's motion. In that affidavit, Complainant's counsel avers that, on March 4, 1985, he sent a notice of appeal by telegram to the Chief Administrative Law Judge. Attached to this affidavit is a confirmation copy of that telegram which indicates that it was delivered on March 4, 1985.

    In view of Complainant's response to Respondent's motion, I deny Respondent's Motion for Certification of Final Decision, and herewith remand this matter to the office of Administrative Law Judges for further appropriate proceedings.

       BILL BROCK
       Secretary of Labor

Dated: August 1, 1985
Washington, D.C.