Dated: Jan. 28, 1997
Case No. 97-ERA-00003

In the Matter of:

JERALD JONES,
    Complainant

    v.

PACIFIC GAS & ELECTRIC
COMPANY,
    Employer

    This matter arises from a complaint pursuant to the Energy Reorganization Act of 1974, 42 U.S.C. 5851 ("ERA"), and regulations in 29 C.F.R. Part 24. The complaint was filed on September 6, 1996, at the San Francisco, California office of the Wage & Hour Division, United States Department of Labor. The San Francisco office transferred the case to the San Diego office, which, in turn, referred it back to San Francisco. By letter dated October 25, 1996, the district director dismissed the claim on the ground that Complainant was not an employee and, therefore, lacked standing to pursue his complaint under the ERA. Complainant timely appealed the director's decision in compliance with 29 C.F.R. §24.4(d)(2) et seq.

    By letter dated November 18, 1996, the parties were informed of my intent to unify the proceeding and hear the jurisdictional issue concerning the putative employee status, together with the substantive issues relating to the asserted discrimination, as these questions may well turn out to be mixed issues of law and fact. The Employer objected, by letter dated December 23, 1996, and requested that the undersigned remand the proceeding to the district director for investigation and determination on the substantive "whistleblower" allegation.

    The "whistleblower" protection provisions of the ERA have expeditious time frames for processing claims. Bifurcating this claim and remanding it would also be incompatible with the efficient administration of the Act.

Given that all issues are considered by the undersigned, de novo, no party is prejudiced by an incomplete investigation at the director's level. Both parties are represented and will have equal opportunity to present and develop their case during the time set for discovery as well as at the hearing. See Billings v. Tennessee Valley Authority, 91-ERA-12 (ARB June 26, 1996). The Secretary in Billings affirmed the ALJ's ruling denying remand to Wage and Hour for further investigation. In support of its decision, the Secretary noted that hearings before the ALJ are de novo, and "any arguable flaws in Wage-Hour's investigation or findings would not adversely affect litigation of ... [the] ... case before the ALJ." Billings at 4, 5.

    The Motion for Remand is hereby DENIED and parties are hereby ORDERED to submit their preferences, in writing, within 10 days of this Order, for the location of the hearing as well as for possible trial dates. It is also requested that, within this time limit, each party provide its best estimate for presenting their respective cases-in-chief.

      JOAN HUDDY ROSENZWEIG
      Administrative Law Judge