Forest v. Williams Power Corp., 2000-ERA-16 and 17 (ALJ Apr. 7, 2000)

U.S. Department of Labor

Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002 (202) 693-7500 (202) 693-7365 (FAX)

DATE: April 7, 2000

CASE NOS.: 2000-ERA-0016, 2000-ERA-0017

In the Matter of:

ROBERT K. FOREST,
    Complainant,

    v.

WILLIAMS POWER CORP., WILLIAMS GROUP INTERNATIONAL, INC., and NORTH ATLANTIC ENERGY SERVICES CORP.,
    Respondents.

   At a conference call held on March 29, 2000, in the above- captioned matter, the undersigned administrative law judge granted Complainant's motion for continuance and canceled the hearing, which was to be rescheduled for August in the Boston area. My ruling was without prejudice to Williams Power Corp. and Williams Power Group International, Inc. (collectively "Williams") renewing their objection to the matter being continued by citing authority indicating that it was not within my discretion to waive the statutory and regulatory deadlines under the circumstances before me. In my Order of March 30, 2000, I reiterated that ruling.

   Williams filed a response to the continuance motion, renewing its objection, on March 31, 2000. In that response, Williams argues that the statutory directive for the Secretary to issue a decision within 90 days appearing in 42 U.S.C. § 5851(b)(2)(A) uses the word "shall" and is not discretionary in nature, and the regulations appearing at 29 C.F.R. § 24.6(a) only provide for postponement of a hearing "for compelling reasons or with the consent of all parties." Williams argues that the Complainant has had ample time to conduct an investigation and cannot show "compelling reasons" for continuance. Complainant filed a reply to Williams' response on April 3, 2000, in which Complainant asserts that under Timmons v. Mattingly Testing Services, No. 1995- ERA-40 (Administrative Review Board, June 21, 1996) -- which held that the statutory and regulatory requirements are directory, not mandatory, and should not interfere with the full and fair presentation of a case -- the time constraints should be waived and

continuances granted to accommodate the needs of the parties. Complainant also cites Holub v. H. Nash Babcock, Babcock & King, Inc., No. 1993- ERA-25 (ALJ June 24, 1993), in which Administrative Law Judge Joan Huddy Rosenzweig waived the time limits based upon the complainant's unilateral waiver (in view of the purpose for the deadlines) and found that the potential for accrual of back pay and damages based on delays in litigation may not be deemed prejudice to respondents, and Malpass v. General Electric Co., No. 1985-ERA-38 (Sec'y, March 1, 1994), which recognized that the granting or denying of continuance requests was within the discretion of the administrative law judge, absent a showing of prejudice.¹ Complainant notes that Williams has not claimed any prejudice. In a response filed on April 5, 2000, North Atlantic Energy Service Corporation ("North Atlantic") agrees that the undersigned has the discretion to waive the time limits upon a showing of a compelling reason and further notes that: (1) as a practical matter, the 90-day time period has already expired with respect to the first complaint (filed on November 29, 1999); (2) although this is not a complex case, the need for discovery and the opportunity to file substantive motions establishes a compelling reason for granting a continuance; and (3) the Department of Labor case law provides that the statutory and regulatory requirements are directory, not mandatory, and should not interfere with full and fair presentation of a case (citing Timmons, which in turn cited Thomas v. Arizona Public Service Co., 1989-ERA-19, note 8 (Sec'y Sept. 17, 1993).)

   After having reviewed the arguments of the parties and having researched the matter, I continue to find that there are compelling reasons for continuing the hearing and that the statutory and regulatory deadlines should be waived under Timmons in order to ensure the full and fair presentation of the case. Specifically, I find the arguments made by Complainant and North Atlantic to be convincing. Putting aside any statutory or regulatory purpose, a complainant who waives the statutory and regulatory deadlines should be allowed time to conduct discovery for the very practical reason that the complainant must go first, and if the complainant is not prepared there can be no full and fair presentation of the case. Although, as Complainant has noted, Williams has claimed no prejudice, if it is in any way prejudiced by the delay, it will be provided with the opportunity to combat such prejudice. Further, as North Atlantic has suggested, there are compelling reasons to allow the parties time to prepare and file dispositive motions, in order to ensure the full and fair presentation of the case. Also, as North Atlantic has noted, as a practical matter the 90-day deadline has expired with respect to at least the first of the complaints (filed on November 29, 1999), and allowing for completion of the hearing and preparation of a decision within 20 days (in accordance with 29 C.F.R. § 24.7), the deadlines cannot be met with respect to the second complaint (filed on January 31, 2000) either.

¹ These cases are available on the Office of Administrative Law Judges website (www.oalj.dol.gov).