DATE: June 2, 1992

CASE NO: 92-ERA-00021

In the matter of

WILLIAM B. BROWN
    Complainant

    v.

TENNESSEE VALLEY AUTHORITY/EBASCO
    Respondent

    This case involves a complaint filed by William B. Brown under the Energy Reorganization Act of 1974, as amended, 42 U.S.C. § 5851 (1988), (the ERA), against his employer, EBASCO Constructors, Inc., (EBASCO) and the Tennessee Valley Authority (TVA). Brown was employed as an electrician by EBASCO, a contractor which performed services at the TVA's Watts Bar Nuclear Plant.

    On November 18, 1991, Brown was suspected of being under the influence of alcohol while on duty at the Watts Bar nuclear facility. He was immediately referred to the medical clinic for testing. Two breath analysis procedures produced positive results. At Brown's request, a blood sample was drawn. The

blood test confirmed the presence of alcohol at a concentration above the limit permitted by the applicable Nuclear Regulatory Commission regulations at 10 C.F.R. Part 26.

    The TVA then revoked Brown's "site clearance," denying access to the Watts Bar facility. On December 10, 1991, EBASCO terminated his employment since he was not permitted to enter the workplace.

    Brown filed a complaint under the ERA on January 7, 1992. On February 7, 1992, following an investigation, the District Director, Wage and Hour Division, U.S. Department of Labor, Nashville, Tennessee, issued a notice of determination concluding that discrimination was not a factor in TVA's revocation of his site clearance and EBASCO's subsequent termination of his employment. Brown timely appealed that determination by telegram on February 12, 1992, and requested that the matter be set for a formal hearing.

    By Notice of Hearing and Prehearing Order issued on March 5, 1992, a formal hearing was scheduled to commence in Knoxville, Tennessee, on May 19, 1992. The TVA, through counsel, filed a Motion for Summary Judgment with supporting documentation on April 24, 1992. EBASCO filed a similar motion on April 28, 1992.

    On May 11, 1992, my Law Clerk was informed by telephone that the complainant intended to dismiss his complaint. Written confirmation of that intent was received on may 13, 1992. On May 14, 1992, I issued an Order cancelling the hearing and directing the parties to file a proposed order of dismissal by May 28, 1992.

    A Motion for Voluntary Dismissal signed by the complainant and his attorney, counsel for the TVA, and an official of EBASCO, was received on May 26, 1992.

    The parties represent that no settlement is involved in the case, citing Denayer v. TVA, Case No. 91-ERA-32, Sec. Order, July 22, 1991.

    The Motion for Voluntary Dismissal, signed by all parties, constitutes a stipulation of dismissal and satisfies the requirements of Rule 41 (a)(1)(ii), Fed. R. Civ. P., which governs voluntary dismissal of complaints arising under the ERA. See Avery v. B & W Commercial Nuclear Fuel Plant, Case No. 91-ERA-8,

Sec. Order, October 21, 1992, at n.l. Therefore, I recommend that the Secretary accept the parties' stipulation and order that this case be dismissed.

       J. MICHAEL O'NEILL
       Administrative Law Judge