Case No. 97-ERA-37
File No. 01-0160-97-01

Date: NOV 12 1997

IN THE MATTER OF:

Gary Nason,
   Complainant

v.

Maine Yankee Atomic Power Co.,
   Respondent

   This Office is in receipt of Complainant's letter, filed via facsimile on November 11, 1997, renewing his request for a hearing to determine as a threshold matter whether Complainant's opportunity for a fair hearing has been unduly prejudiced.

   For the reasons stated in my Order dated November 10, 1997, the renewed request is hereby DENIED. A hearing on the limited issue cannot be had at this time due to the heavy docket schedule of this Administrative Law Judge, who has hearings scheduled every single week between next Monday and the week of May 15, 1998, and, more importantly, for the basic reason that Complainant is in effect asking for a hearing within a hearing. This Judge interprets the case of Remusat v. Bartlett Nuclear, Inc., 94-ERA-36 (Sec'y 2/26/96), upon which Complainant relies in support of his request, as standing for the proposition that circumstances such as those alleged by Complainant, if established to be true, require invocation of the adverse inference rule. This Judge has invoked that rule in the past and will continue to do so in the future given the appropriate circumstances.

   The letter to Complainant from counsel for Bartlett Nuclear, Inc., dated

November 7, 1997, impliedly refers to the case of Malpass v. General Elec. Co., 85-ERA-38/39 (Secy 3/l/94). This Judge is of the opinion that the Secretary's dicta in that case concerning the issuance of subpoenas in ERA cases fails to take into consideration the inherent authority of an administrative law judge to issue subpoenas as is permitted by the Office of Administrative Law Judges' Rules of Practice. This Judge has always taken the position that our Rules of Practice are to be used so long as such use does not contradict the ERA itself or its implementing regulations found at 29 C.F.R. Part 24. In my years as an Administrative Law Judge, I have consistently issued subpoenas in ERA cases at the request of either party. I have continued to do so post-issuance of the Malpass decision, and I deem it necessary for the recipient of the subpoena to determine whether or not he or she will abide by the subpoena.

   As the parties are aware, the re-scheduled hearing will begin on Monday, March 16, 1998 and the parties should continue with their pre-hearing discovery. This Judge will consider the allegations which Complainant has raised, if properly supported by the evidence, in their proper context at hearing.

      DAVID W. DI NARDI
      Administrative Law Judge

Boston, Massachusetts
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