Case No. 98-ERA-36
File No. 01-0240-98-007

Date: August 3, 1998

IN THE MATTER OF:

Jeffrey W. Allen,
    Complainant

v.

Williams Power Co.

and

Vermont Yankee Nuclear Power Corp.,
    Respondents

   In response to this Judge's Order dated July 8, 1998, the Complainant, by document dated July 22, 1998, indicated his desire to have the hearing of the above-captioned matter within seventy-five (75) miles of his residence in Battle Creek, Michigan. In support thereof, the Complainant asserts that any of his witnesses are closer to Michigan than Boston and that the Respondents, as corporations, have greater resources which enables them to travel for the hearing.

   By document filed July 23, 1998, Respondent Vermont Yankee Nuclear Power Corporation (hereinafter Vermont Yankee) informed the Court that it had no knowledge of any potential witnesses from the Michigan area; that all of the potential witnesses from Respondent Vermont Yankee reside in the Vermont-New Hampshire-Massachusetts area and that the cost of trying the case in the Boston area will be significantly lower than if tried in Michigan. Respondent Vermont Yankee also noted that Complainant traveled to Vermont to work and, therefore, it would not be inequitable to require him to travel to the New England area to pursue his claim and that the claim was filed in the Boston District. By document filed July 31, 1998, Respondent Williams Power Corporation concurs in this position and suggests that it will pay a reasonable portion of the Complainant's travel expenses to ease his burden of attending a hearing in the New England area.

   Preliminarily, this Judge notes that Complainant filed his Energy Reorganization Act claim with the New Hampshire office of the Occupational Safety and Health Administration, that he appealed that Agency's findings to the Chief Administrative Law Judge in Washington, D.C. as he was notified of his right to so do, and that the Chief Administrative Law Judge then assigned the case to the Boston District Office as the office in nearest proximity to the New Hampshire area, the area in which the complaint was filed.

   The regulations applicable to a whistleblower proceeding pending before the Office of Administrative Law Judges provides that "The hearing shall, where possible, be held at a place within 75 miles of the complainant's residence." 29 C.F.R. Part 24.6(c), as amended. In scheduling the date, time and place of hearing, however, due regard shall be given to the convenience of the parties and the witnesses in accordance with 29 C.F.R. Part 18.27(c), which Part is applicable in the absence of a specific provision at Part 24.

   The Secretary has stated that the obvious purpose of the regulation is to accommodate a complainant and facilitate the proceeding. Nevertheless, the Secretary has also noted that a hearing site within 75 miles of the complainant's residence will not always be appropriate. It is plain that there is to be a balancing of the reason for the requested location and the objection thereto. See Generally Ridings v. Commonwealth Edison, 88-ERA-27 (Sec'y 09/20/91); Wilkinson v. Texas Utilities, 92-ERA-16 (ALJ 07/24/92).¹ Factors such as the location of the complainant, witnesses, and counsel for the parties, as well as a respondent's principal place of business, have all been considered in reaching a determination as to the appropriate place for a hearing. See Ridings, supra; Wilkinson, supra.

   Accordingly, it is hereby ORDERED that each party shall identify by name and address those witnesses it intends to call at the hearing of this matter. This identification should be a good faith estimate of those witnesses each party reasonably anticipates calling to testify. Because of the early stage of discovery, however, the parties are not bound by the

¹Both of these cases were adjudicated pursuant to 29 C.F.R. Part 24.5(c), which is the exact same language as Part 24.6(c) as amended.