DATE:  September 8, 1992
CASE NO. 85-ERA-27

IN THE MATTER OF

STEVE MCNALLY,

          COMPLAINANT,

      v.

GEORGIA POWER COMPANY,

          RESPONDENT.



CASE NO. 85-ERA-29

IN THE MATTER OF

BILLY WEATHERFORD,

          COMPLAINANT,

      v.

GEORGIA POWER COMPANY,

          RESPONDENT.



CASE NO. 85-ERA-30

IN THE MATTER OF

JAMES REGISTER,

          COMPLAINANT,

      v.

GEORGIA POWER COMPANY,

          RESPONDENT.

[PAGE 2]
CASE NO. 85-ERA-31

IN THE MATTER OF

SUSAN REGISTER,

          COMPLAINANT, [1]

      v.

GEORGIA POWER COMPANY,

          RESPONDENT.



CASE NO. 85-ERA-32

IN THE MATTER OF LESLIE PRICE,

          COMPLAINANT,

      v. 

GEORGIA POWER COMPANY,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                          FINAL DECISION AND ORDER
     This proceeding arises under the employee protection provision
of the Energy Reorganization Act of 1974, as amended (ERA), 42
U.S.C. § 5851 (1988), and is before me for review of the
Administrative Law Judge's (ALJ) Recommended Decision (R.D.) issued
January 24, 1986.


     Complainants were employed at Respondent's Plant Vogtle 
[PAGE 3]
facility in Waynesboro, Georgia, and were discharged after either
refusing to take or failing drug urinalysis tests.  They jointly
filed this complaint on May 13, 1985, alleging that the urinalysis
tests were imposed upon them as retaliation for protected conduct. 
A single hearing was convened, at which the parties agreed that the
sole issue to be decided at this juncture is whether the complaint
is time-barred.  The ALJ concluded that it is, and upon
consideration of the record, including briefs filed by both parties
before me, I agree and accept the ALJ's R. D., as supplemented
below. [2]
                             DISCUSSION
     It is undisputed that the May 13 complaint was filed more
than thirty days after each Complainant was discharged, in
contravention of the filing period expressly prescribed by the
ERA.  Transcript (T.) at 7. [3]  Although the ERA's
thirty-day filing period is subject to equitable modification, e.g.,
Larry v. Detroit Edison Co., Case No. 86-ERA-32, Sec. Dec. and
Ord., June 28, 1991, slip op. at 12, aff'd sub nom.  Detroit
Edison Co. v. Secretary. United States Department of
Labor, No. 91-3737 (6th Cir. Apr. 17, 1992), Complainants have
failed to show that modification is appropriate here.
     Relying on Charlier v. S.C. Johnson and Son. Inc., 556
F.2d 761 (5th Cir. 1977), reh'g denied, 559 F.2d 1217 (5th
Cir. 1977), and other cases arising under the Age Discrimination in

[PAGE 4]
Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621-634
(1988), Complainants principally argue that their late filing
should be tolled until they first learned of their rights under the ERA at
the meeting on April 18, 1985, because Respondent failed to post adequate
notice of employees' rights under Section 210 of the
ERA. [4]  In neglecting to post notice, Complainants argue,
Respondent deprived them of a meaningful opportunity to become aware
of their rights to file a complaint with the Department of Labor
(DOL).
     Preliminarily, I emphasize that the posting obligation which
has given rise to equitable tolling in Charlier and other
ADEA cases, is imposed by the statute itself -- a Congressional
mandate.  See Posey v. Skyline Corp., 702 F.2d 102,
104-05 (7th Cir. 1983), cert. denied, 464 U.S. 960 (1983).  Unlike the
ADEA, the ERA contains no requirement that the employer post notice
of employees' whistleblower rights.  The obligation arises solely
from regulations adopted by the Nuclear Regulatory Commission (NRC)
in implementing the statute.  It is thus questionable whether
failure to post pursuant to the NRC regulations should be adopted as
an 
[PAGE 5]
additional basis for equitable tolling under the ERA.  Nevertheless,
a similar argument has been addressed recently in Rose v.
Dole, 945 F.2d 1331 (6th Cir. 1991), and here, as in
Rose, Complainants have not shown that Respondent failed to
comply with the regulatory posting requirements.
     According to Complainants, Respondents failed to post an NRC
Form 3 at Plant Vogtle as required by 10 C.F.R. §§ 50.7(e)
and 21.6(a) (1991). [5]  The ALJ credited the testimony of
Respondent's witnesses, including the NRC resident inspector, and
found that during Complainants' employment, Respondent in fact had
posted NRC Form 3 (Version 8/82).  R.D. at 6.  The ALJ's
credibility determination is supported by the record, and I refuse
to disregard it based on Complainants' argument that Respondent's
witnesses were "interested."  See Pogue v. United
States Department of Labor, 940 F.2d 1287, 1290 (9th
Cir. 1991).  The ALJ's finding is also consistent with the
admissions of Complainants Price and Susan Register at the hearing
that after their discharge, a fellow employee acknowledged to them
that an NRC Form 3 had been located in his work area at Plant
Vogtle during the time they were employed there.  T. at 53, 56, 65.
     Furthermore, I find no merit in Complainants' alternative
argument that even if a form were posted by Respondent, the
content of that form was inadequate to inform Complainants of
their rights.  Complainants contend that NRC Form 3 (Version
8/82) is ambiguous and outdated, and in support of their
argument, Complainants submitted a memorandum from the NRC dated
September 17, 1984, CX 8, which directed all licensees to post by
January 1, 1985, a modified, current version, i.e., NRC Form
3

[PAGE 6]

Section 21.6(a) pertains to posting of other documents.
(Version 9/84). [6]  It was stipulated at the hearing that
Version 9/84, Respondent's Exhibit 23, was not posted at Plant
Vogtle until June 1985, after Complainants' terminations.  T. at
139.
     The ALJ found that the content of the form posted by
Respondent is irrelevant because Complainants testified that they
"did not see" any NRC Form 3 and thus, did not detrimentally rely
on the content.  R.D. at 6.  While I do not disagree, I find it
additionally compelling that the most specifically applicable
regulation, 10 C.F.R. § 19.11(c) (1991), still provides in
pertinent part:

     Each licensee and applicant shall post Form NRC-3,
     (Revision 6-82 or later) "Notice to Employees," as
     required by Parts 30, 40, 50, 60, 70 72, and 150 of 
     this chapter.
(emphasis supplied.)  By posting Version 8/82, Respondent
complied with the specific codified directive of the NRC.
Although I do not condone Respondent for its delay in
implementing the NRC's informal directive, in view of the



regulation, I decline to find the NRC's informal directive 
[PAGE 7]
dispositive.  Furthermore, the fact that the NRC has not amended
the regulation at Section l9.11(c) to exclude Version 8/82
contradicts Complainants' position that the NRC finds Version 8/82
wholly inadequate.
     Complainants also dispute the ALJ's finding that Respondent
posted NRC Form 3 at such places as were calculated to inform
Complainants had they chosen to read the form.  The record supports
the ALJ's finding, however.  Respondent posted NRC Form 3 on
bulletin boards in the field support or office building, the
training building, the warehouse, and various entrance gates, and
routinely verified that the forms were posted.  T. at 117-119,
122-23, 127-28, 134.  Complainants testified that they entered and
exited Plant Vogtle from these gates daily and that they also
traveled through these other designated locations.  In defense of
their position, however, Complainants primarily argue that the
entrance gates were not a reasonable location because the press of
traffic entering and exiting the plant at shift changes made it
unlikely that employees would stop and read the notices.  The
argument is defied by Complainants' own testimony that time
permitted reading other posted notices at the gates. Specifically,
Complainant Price testified that she read other notices displayed
on billboards as she moved along the walk through the gates, as did
Complainant Weatherford.  T. at 49, 75.  Considering this, together
with the descriptions of the entrance gate, I find the location of
the notice reasonable and "sufficient to permit employees . . . to
observe a copy on the way to or from their place of work."
10 C.F.R. § 50.7(e).  Similarly, Complainants have not
shown that the other locations of the NRC Form 3 were unreasonable.
They certainly have not shown the type of circumstances present in
Charlier where the employee rarely was present physically
on the premises.  In this case, the notices were posted in accessible
locations which provided Complainants a meaningful opportunity
of becoming aware of their rights such that I conclude that they
should have known of their statutory rights.  See
Charlier, 556 F.2d at 764.
     In sum, Respondent properly posted NRC Form 3.  The filing
period is not tolled because Complainants did not see it or were
not aware of their rights.  Kale v. Combined Insurance Co. of
America, 861 F.2d 746, 754 (lst Cir. 1988); McClinton v.
Alabama By-Products Corp., 743 F.2d 1483, 1486 (11th
Cir. 1984).  It is well settled that an employee's ignorance of his
statutory rights, in itself, will not toll the filing period. 
Rose, 945 F.2d at 1335; Billings v. TVA, Case No.
86-ERA-38, Sec. Final Dec. and Ord. of Dismissal, June 28, 1990,
slip op. at 9, aff'd sub nom. Billings v.
Dole, No. 90-3633 (6th Cir. Jan. 25, 1991), cert. denied sub
nom., Billings v. Secretary of Labor, 59 U.S.L.W. 3850
(U.S. June 
[PAGE 8]
24, 1991) (No. 90-7878).
     There is another reason why the complaint is time-barred with
respect to Complainants Susan Register, Price, Weatherford, and
McNally.  Under the ADEA, the courts have held that even if an
employer fails to post the requisite notice, the filing period
is not tolled once an employee acquires general knowledge of
his right not be discriminated against on the basis of age. 
Kale, 861 F.2d at 753; McClinton, 743 F.2d at
1486-87.  By analogy, I apply that principle here.  Each of these
four Complainants have stated that they complained to various
officials about retaliatory discrimination prior to their
terminations, which leads me to conclude that they were generally
aware of their rights such that ignorance of specific rights does
not toll the filing period.  Id.  Susan Register, Price, and
Weatherford each testifled that they had told their supervisors
that they thought they were being "discriminated" against.  T. at
36-38, 58, 73.  McNally, who did not testify at the hearing,
alleged in his complaint that over a month before his discharge he
had notified the NRC that "management was attempting to intimidate
him into leaving his job for expressing his concerns regarding
quality assurance."  CX 1.  Regardless of the NRC Form 3 issue,
these four Complainants had sufficient knowledge to send a
reasonable person to pursue his or her rights.  Instead, they
delayed and neglected to follow
through. [7]

     Although Complainants Price and Susan Register contend that
their contact with the NRC within thirty days of their discharges
should toll their filing period, I disagree.   To the extent these
Complainants rely on the principle that permits equitable tolling
where an employee files the precise claim in the wrong forum, their

[PAGE 9]
reliance is misplaced.  Even though these Complainants contacted
the NRC during the filing period, they filed no written complaints,
see 29 C.F.R. § 24.3(c), and the facts do not otherwise
present the narrow circumstances contemplated by the cases applying
that principle of equitable tolling.  See generally
Kelly v. Flav-o-Rich, Inc., Case No. 90-STA-14, Sec. Final
Dec. and Ord., May 22, 1991, slip op. at 2.
     Primarily, Complainants Price and Susan Register claim that
the filing period should be tolled because the NRC coordinator,
Bruno Uryc, misled them by failing to advise them of their
statutory remedy and by giving assurances that their "concerns"
were being investigated. [8]  First, I fully agree with the
ALJ's evaluation of the evidence on this issue, i.e., that Uryc
did not perceive the concerns raised by these Complainants as involving any
allegation of discrimination by Respondent in retaliation for
protected activity, Deposition (Dep.) at, e.g., 21, 32, 38,
and he did not actively mislead them or lull them into inaction.[9]
In virtually identical letters to Price and Susan
Register, dated February 26, 1985, Uryc summarized their concerns
and requested that they contact him immediately if the summary was
not accurate.  CX 4, 6.  At no point in the letters does Uryc
mention their having been discharged, and at no time did these
Complainants ever contact Uryc seeking correction of his summary.
Dep. at 22, 33.  Again, they neglected to follow through.
     Furthermore, relying on School District of the City of
Allentown v. Marshall, 657 F.2d 16, 20-21 (3d Cir. 1981),
the Secretary previously has refused to toll the filing period in
a 
[PAGE 10]
case where the respondent was in no way responsible, but the
complainant delayed and then blamed the NRC coordinator for his
failure to file a timely complaint.   Doyle v. Alabama Power
Co., Case No. 87-ERA-43, Sec. Final Dec. and Ord., Sept. 29,
1989, slip op. at 4-6, aff'd sub nom.  Doyle v.
Secretary. United States Department of Labor, No.
89-7863 (llth Cir. Nov. 26, 1991).


Similarly, I find that the circumstances here do not warrant
equitable tolling.
     Finally, Complainants contend that they were "diligent" and
that principles of fairness demand that the statutory filing period
be tolled.  For the reasons discussed "supra" at 10 n.7 and based
on the same concerns of the Supreme Court in Baldwin
County Welcome Center v. Brown, 466 U.S. 147, 151-52
(1984), I also reject this argument.
     Accordingly, the above-captioned cases are DISMISSED on the
basis of an untimely complaint under 42 U.S.C. § 5851.
    SO ORDERED.

                              LYNN MARTIN
                              Secretary of Labor


Washington, D.C.

[ENDNOTES]

[1] The caption is modified to correct the spelling of Susan
Register.  See Plaintiffs' (hereinafter "Complainants'")
Exhibit (CX) 1.

[2] Attached to a brief Complainants filed before me are
additional documents designated by their counsel as PX 9 and PX 10. 
Respondent's motion that I exclude these belatedly offered
documents from the record is granted.  Although the evidence was in
existence before the time of the hearing, it was never proffered to
the ALJ.  Complainants' counsel states that this evidence was
discovered nine months after the hearing pursuant to a Freedom of
Information Act request made by a colleague, however, I conclude
that counsel has failed to show that the evidence "was not readily
available" to her prior to the hearing had she chosen to inquire. 
29 C.F.R. § 18.54(c) (l991).  Further, the documents have been
examined and I find them immaterial in view of my legal analysis.
Id.

[3] The ERA provides that employees who believe that they
have been discriminated against must file their complaint "within
thirty days after such violation occurs . . . . " 42 U.S.C.
§ 5851(b).  The Complainants and their respective discharge
dates are as follows:  Steve McNally, January 16, 1985; Billy
Weatherford, March 1, 1985; James Register, February 27, 1985;
Susan Register, January 24, 1985; Leslie Price, February 5, 1985.
R.D. at 4.

    In the formal complaint, Complainants also refer to several
other allegedly discriminatory acts committed by Respondent, but
these allegations are factually and legally deficient. 
Specifically, Complainants allege a subsequent act of discriminatory
harassment and intimidation occurring on April 18, 1985, when
Respondent's attorney appeared at a meeting attended by
Complainants, their attorney, and other workers who were opposed to
the urinalysis program.  This allegation, though, fails to encompass
any adverse personnel action affecting the "terms, conditions, or
privileges of employment."  42 U.S.C. § 5851(a); cf.
English v. Whitfield, 858 F.2d 957, 963-64 (4th Cir. 1988). 
Complainants Susan Register and Leslie Price additionally alleged
that Respondent's refusal to pay unemployment benefits and refusal
to allow them to make withdrawals from the company's saving plan
constituted further discriminatory acts, but they never alleged the
dates of such refusals.  Complainants appear to have abandoned these
additional theories altogether since they were not pursued at the
hearing and were never seriously debated.

[4] This case arises within the appellate jurisdiction of the
United States Court of Appeals for the Eleventh Circuit. 
See 29 C.F.R. § 24.7(a) (1991).  The Eleventh Circuit,
in the en banc decision, Bonner v. City of Prichard, 661
F.2d 1206, 1209 (11th Cir. 1981), adopted as precedent, decisions
of the former Fifth Circuit rendered prior to October 1, 1981.

[5]  Regulatory Section 50.7(e) provides in pertinent part:

     Each licensee, permittee and each applicant shall post Form
     NRC-3, "Notice to Employees," on its premises.  Posting must
     be at locations sufficient to permit employees protected by 
     this section to observe a copy on the way to or from their place of
     work.

[6] CX 8 was not proffered to the ALJ until well after the
hearing when Complainants' counsel stated that the document had
"just come to her attention."  Over Respondent's objection, the ALJ
admitted the document into evidence as highly relevant, new
evidence.  He then found it appropriate to allow Respondent "to
respond to that evidence" and granted Respondent's motion to submit
into evidence the post-hearing deposition of Bruno Uryc, an NRC
Investigation/Allegation Coordinator.  Complainant challenges that
ruling.  Reluctantly, I will accept both of the ALJ's rulings to
allow these highly probative, albeit late, documents into evidence. 
29 C.F.R. § 24.5(e)(1).  I note, however, that it is a close
question whether Complainants' counsel made a sufficient showing
that CX 8 "was not readily available prior to the hearing." 
See 29 C.F.R. § 18.54(c).  In turn, I cannot conclude
that it was improper for the ALJ to allow Respondent to submit
Uryc's post-hearing deposition on a theory not clearly delineated
prior to the hearing.  See Yellow Freight System 
Inc. v. Martin, 954 F.2d 353, 357-59 (6th Cir. 1992).


[7] Complainants Susan Register and Price maintain that they
contacted a number of associations and government agencies within
thirty days of their terminations, including the National
Organization for the Reform of Marijuana Laws; the National
Organization for Women; the National Labor Relations Board; and the
Georgia Department of Labor, but were never informed of their ERA
remedy.  First, I question the precise focus of their inquiries
with these organizations.  The substance of the inquiries and the
responses was never discussed fully.  Cf. Miller v.
Marsh, 766 F.2d 490, 493 (11th Cir. 1985) (employee received
erroneous and conflicting instructions on how to pursue her Title
VII claim, on which she attempted to follow through). Further,
Complainants Susan Register and Price had sufficient
knowledge of their rights to continue, once they were dissatisfied
with the responses from these organizations, pursuing their claims. 
Moreover, they claim they also spoke with private attorneys, T. at
46; 70, which has been held to provide, in itself, "the means of
knowledge" sufficient to preclude equitable tolling.  Edwards v.
Kaiser Aluminum & Chemical Sales, Inc., 515 F.2d 1195,
1200 n.8 (5th Cir. 1975).

[8] In contrast, this is not a case like those cited by
Complainants where the employee acted in reliance on
misrepresentations by the employer or a directly responsible
government agency or entity.  Complainants are not alleging that
they were misled by Respondent or the DOL.  See T. at 55. 
Cf. Chappell v. Emco Machine Works Co., 601 F.2d
1295, 1303 (5th Cir. 1979).

[9] According to Uryc, Complainants were concerned about the
technique of the urinalysis and misuse of the drug hotline with
attendant harassment by fellow employees, not Respondent, and were
concerned that Respondent was purposely omitting from termination
reports the fact that individuals were being terminated for drug
abuse in order to avoid an NRC directive to reinspect the work
previously performed by those individuals. Dep. at 18-19, 25-26,
29-30, 32, 35; cf. Dep. at 36.