Case No. 92-ERA-40/41

In the Matter of:

Thomas M. Bonanno

Complainant

against

Northeast Nuclear Energy Company
C.N. Flagg Power, Inc.

Respondents

   On April 3, 1992, Complainant, Mr. Thomas M. Bonanno, submitted a letter to the Wage and Hour Division, Employment Standards Administration, United States Department of Labor (Wage and Hour) , containing certain allegations of discriminatory conduct perpetrated by the above-named Respondents, C.N. Flagg Power, Inc., and Northeast Nuclear Energy Company, hereinafter Respondents or Flagg and NNEC, respectively, in retaliation for certain allegedly protected activity by Complainant. Wage and Hour, after an investigation, concluded in a determination dated June 24, 1992, that the specific actions of which Complainant was aggrieved were corrected or otherwise rectified and that no residual retaliatory or discriminatory actions were evident. Complainant seeks a hearing de novo, as provided by Section 210 of the Energy Reorganization Act of 1974, as amended, 42 U.S.C. §5851, hereinafter the Act, and Part 24 of the regulations, 29 C.F.R. §24.1 et seq.

   In order for one to properly seek redress for allegedly discriminatory action in contravention of the provisions of the Act by an employer, the complainant must file the complaint within 30 days after the occurrence of the alleged violation. 29 C.F.R. §24.3(b). My

review of Mr. Bonanno's complaint dated April 4, 1992, and received (filed) by Wage and Hour on May 22, 1992, reveals that the matter which constituted Respondents' allegedly prohibited action is a letter from Flagg dated April 16, 1991, citing Complainant for allegedly unsafe conduct - failure to wear a hard hat at the site of his injury on April 8, 1991. The allegation is that no one was wearing a hard hat at the time and Complainant was being singled out unfairly. It was only then that Complainant threatened to go to the NRC to complain of the allegedly lax safety practice that led to the injury. (April 3, 1992, letter at page 3). There was a subsequent alleged threat of retaliation relayed by a third party. "I could forget about working at the Millstone Facility again." Id.

   The Complainant acknowledges the letter which touched off the confrontation and alleged unlawful threat was formally withdrawn by Flagg on May 8, 1991. Id. at 6.

   Although laid off in early July 1991, as part of a "a series of lay offs applying to the Millwright personnel assigned to the Millstone 1 Maintenance Shop," Complainant was, in effect, reinstated by another contractor about five weeks later.

   All of the foregoing, assuming unlawful conduct by Respondents, took place long before the complaint was filed. The other matters related in the complaint deal with the vicissitudes (shared by society) in general of dealing with a health insurance carrier and the medical opinion of a health provider. There is no plausible suggestion they acted as part of a scheme, controlled by either Respondent, so as to harass Complainant in retaliation for threatening to go to the NRC with safety concerns at the Millstone site.

   In view of the foregoing, it is hereby ORDERED that Complainant show cause within ten (10) days of the receipt of this Order:

1. Why the complaint should not be dismissed because it was filed untimely.

2. Why the complaint should not be dismissed because Complainant has failed to show that a cause of action exists, that is, he is being discriminated against by Respondents and this forum can order the discriminatory conduct to cease and restore Complainant to his position prior to the allegedly discriminatory action. See 29 C.F.R. §24.6.

ANTHONY J. IACOBO¹

Administrative Law Judge

Date: SEP 11 1992

Boston, Massachusetts

AJI:ln

¹Judge Rosenzweig, to whom these cases were originally assigned, due to an extended illness, is unavailable to give this matter the expeditious handling to which it is entitled. The cases have, therefore, been assigned to me.