Avery v. B&W Commercial Nuclear Fuel Plant, 91-ERA-8 (ALJ June 20, 1991)

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USDOL/OALJ Reporter
Avery v. B&W Commercial Nuclear Fuel Plant, 91-ERA-8 (ALJ June 20, 1991)

U.S. Department of Labor
Office of Administrative Law Judges
Suite 201
55 West Queens Way
Hampton, Virginia 23669
804-722-0571
FTS 920-1571
FAX (804) 722-3448

DATE: June 20, 1991

CASE NO.: 91-ERA-8

IN THE MATTER OF

DAVID A. AVERY,
COMPLAINANT,

B & W COMMERCIAL NUCLEAR FUEL PLANT,
RESPONDENT.

RECOMMENDED DECISION AND ORDER DISMISSING COMPLAINT

The Complainant, David A. Avery, filed a letter of complaint¹ with the Wage and Hour Division of the Employment Standards Administration, United States Department of Labor, alleging that the Respondent, B&W Commercial Nuclear Fuel Plant discharged the Complainant in a discriminatory manner under the provisions of Section 210 of the Energy Reorganization Act, 42 U.S.C. 5651.

By letter dated October 23, 1990, the District Director, Wage and Hour Division Employment' Standards Administration, United

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States Department of Labor found that the complaint was not timely filed under the thirty day time limit of Section 210 of the Energy Reorganization Act. Therefore, the Director declined to investigate the complaint.

The Complainant requested a hearing and the case was referred to the Presiding Judge on November 13, 1990.

The Presiding Judge held numerous telephone conference calls with the parties. During one such conference call held on January 25, 1991, the Complainant requested that the hearing be held in Raleigh, North Carolina. It was further agreed that the hearing be set for May 7, 1990 at 10:00 a. m. The Presiding Judge sent a Notice of Hearing dated January 31, 1991, setting the hearing to commence at 10:00 a. m. on May 7, 1991 in the U. S. Court Room, 5th Floor, Post Office and Court House, 310 New Bern Avenue, Raleigh, North Carolina.

On May 7, 1991, the Complainant failed to appear at the hearing.²

On May 9, 1991, the Presiding Judge ordered the Complainant to Show Cause within 30 days why his complaint should not be dismissed for his failure to appear at the hearing.³

The Complainant failed to respond to the Order to Show Cause.

The rules governing hearings under the Energy Reorganization Act provide that a complaint may be dismissed for cause, inter alia, upon the failure of the Complainant to attend a hearing without good cause. See 29 C.F.R. Section 24.5 (e) (4) (i) A.

Since the Complainant failed to show at hearing and failed to respond to the Show Cause Order, the Presiding Judge recommends that the Secretary, United States Department of Labor dismiss for cause the complaint of David A. Avery.

DANIEL A. SARNO, JR.
Administrative Law Judge

DAS/ccb

[ENDNOTES]

¹ The letter is dated August 22, 1990. The letter was not filed until September 27, 1990.

² Counsel for the Respondent entered an appearance and reported that the Respondent was ready for hearing.

³ See 29 C.F.R. Section 24.5 (e) (4) (ii).