DATE:  NOVEMBER 3, 1993

CASE NO. 93-ERA-11

In the Matter of                  
                                  
GALE K. SYLVESTER                 
       Complainant                  
                                  
     v.                         
                                  
ABB/POWER SYSTEMS ENERGY          
SERVICES, INC.                    
       Respondent                 

     AND

CASE NO. 93-ERA-51

In the Matter of                  
                                  
GALE K. SYLVESTER                 
       Complainant                                                

     v.                           
                                  
BOSTON EDISON COMPANY             
       Respondent                 

Before:  GEORGE P. MORIN
         Administrative Law Judge

                     RECOMMENDED ORDER OF DISMISSAL

     These cases involve a complaint filed by Gale K.
Sylvester under the Energy Reorganization Act of 1974, as
amended,        42 U.S.C. §5851 (1988), against ABB
Power Systems Energy Services, Inc., a contractor which performs
services for Boston Edison Company at the latter's Pilgrim
Nuclear Power Station, and a second complaint by Mr. Sylvester,
under the same statutory provisions, against Boston Edison
Company.

     Complainant alleged that his employment with ABB Power
Systems Services, Inc., of Windsor, Connecticut, was terminated
on October 13, 1992, after he notified the Nuclear Regulatory 
[PAGE 2]
Commission of certain alleged irregularities or discrepancies in
the drug screening at the Pilgrim nuclear power plant resulting
in Boston Edison Company denying him unescorted access to its
Pilgrim Nuclear Power Station.  The complaint against ABB Power
Systems Services, Inc. was filed November 6, 1992.
      
     On November 30, 1992, following an investigation, the
Assistant District Director, Wage and Hour Division, Employment
Services Administration, U. S. Department of Labor, Taunton,
Massachusetts, advised complainant that the investigation
conducted by his department did not verify that discrimination
was a factor in the actions comprising the complaint.  Within
five days of receipt of the letter, complainant appealed that
determination and requested a formal hearing.  While the matter
was pending before an administrative law judge (but before any
hearing had been scheduled), the complaint in 93-ERA-51 against
Boston Edison Company was filed on March 25, 1993, with the
Administrator, Wage and Hour Division, Washington, D.C.

     On May 12, 1993, the Assistant District Director at the
Taunton, Massachusetts, office advised complainant that he had
failed to make a prima facie showing that the protected
activity was a contributing factor in the unfavorable action
(Boston Edison barring his access to the Pilgrim Nuclear Power
Station) alleged in the complaint.  That finding was affirmed in
another letter, dated August 5, 1993.  On August 10, 1993, by
facsimile communication, complainant appealed that determination
and requested a hearing.

     Both matters were assigned to this administrative law judge,
and by Notice of Hearing, issued August 27, 1993, I scheduled
them for a formal hearing, on a consolidated record, in Boston,
Massachusetts, commencing October 12, 1993.  On the afternoon of
Friday, October 8, 1993, a document entitled "Notice of Voluntary
Dismissal" was received in facsimile transmission from complain-
ant's counsel requesting on behalf of his client dismissal of
both complaints pursuant to Rule 41 of the Federal Rules of Civil
Procedure, and orders of the Secretary of Labor governing proce-
dures for voluntary dismissal of complaints in cases arising
under the employee protection provisions of the Energy Reorgani-
zation Act, 42 U.S.C. §5851.

     Under Rule 41(a)(1), the "plaintiff" may dismiss the action
by filing a notice of dismissal at any time before service by the
adverse party of an answer or of a motion for summary judgment,
whichever first occurs.  Although Section 18.5 of the Rules of 
[PAGE 3]
Practice and Procedure for Administrative Hearings Before the
Office of Administrative Law Judges, 29 C.F.R. Part 18, states
that within thirty days after the service of a complaint, each
respondent shall file an answer, the regulations at 29 C.F.R.
Part 24, Procedures for the Handling of Discrimination Complaints
under Federal Employee Protection Statues, prescribe procedures
for investigation and referral of complaints filed under,
inter alia, the Energy Reorganization Act of 1974, 42
U.S.C. §5851, which do not include a requirement that the
respondent in an employee discrimination case must file an
answer.  Neither did the letter from the District Director
notifying respondent that a complaint had been filed and that an
investigation would be con- ducted make any reference to the need
for respondent to answer, only that it was encouraged to
cooperate in the investigation.  Furthermore, I do not construe
the responses by either of the respondents to my requirement for
filing pre-trial statements to be "answers", and neither
respondent has filed a motion for summary judgment.  Neither
respondent has filed any response to the Notice of Voluntary
Dismissal.

     The requirements of Rule 41(a)(1)(i) appear to have been
met; therefore, I recommend that the Secretary enter a final
order dismissing both cases without prejudice.

                                          GEORGE P. MORIN
                                          Administrative Law Judge



NOTICE:  This Recommended Order of Dismissal and the
administrative file in this matter will be forwarded for review
by the Secretary of Labor to the Office of Administrative
Appeals, U. S. Department of Labor, Room S-4309, Frances Perkins
Building, 200 Constitution Avenue, NW, Washington, DC  20210. 
The Office of Administrative Appeals has the responsibility to
advise and assist the Secretary in the preparation and issuance
of final decisions in employee protection cases adjudicated under
the regulations at 20 C.F.R. Parts 24 and 1978. See 55
Fed. Reg. 13250 (1990).