, 98-ERA-8 (ARB May 4, 1998) [Caption on Decision
Erroneously Shows ALJ No. 98-ERA-7]
U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB CASE NO. 98-035
ALJ CASE NO. 98-ERA-7
DATE: May 4, 1998
In the Matter of:
RONALD STASKELUNAS,
COMPLAINANT,
v.
NORTHEAST UNTILITIES COMPANY,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL DECISION AND ORDER
The Administrative Law Judge (ALJ) submitted a Recommended Order of
Dismissal (R. O.) in this case arising under the employee protection provision of the Energy
Reorganization Act of 1974, as amended (ERA), 42 U.S.C. §5851 (1988 and Supp. V 1993),
recommending that the complaint be dismissed on two grounds. First, the ALJ recommended
dismissal for failure of the Complainant to file a timely request for a hearing after receipt of the
adverse determination by the Occupational Safety and Health Administration (OSHSA) on the
investigation of his complaint.1 R. O. at 3.
[Page 2]
1 Responsibility for investigation of
complaints under the ERA was transferred from the Administrator of the Wage and Hour Division of the
Department of Labor to theAssistant Secretary for Occupational Safety and Health by Secretary's Order
No. 6-96 (62 Fed. Reg. 111, Jan. 2, 1997).
2 In order to avoid confusion in the
future, the Office of Administrative Law Judges or the ALJ to whom a case is assigned should assure that
a timely request for a hearing has been filed before issuing a hearing notice and pre-hearing order.
3 Complainant's request for a hearing
has two OALJ stamp dates indicating receipt, one on October 29, 1997 and another on November 7,
1997. Apparently, the first date is the date the request was received by the Office of the Chief ALJ, and
the second is the date it was received by the ALJ to whom the case was assigned in the Boston office of
administrative law judges.
4 Effective March 11, 1998, the
filing deadline in ERA whistleblower cases was changed to require filing within five business
days of the receipt of the OSHA determination letter. 63 Fed. Reg. 6622 (Feb. 9, 1998), to be codified
at 29 C.F.R. §24.4(d)(2). However, the instant complaint was filed while the prior time limitation
was in effect.
5 The Administrative Law Judge
concluded that Complainant's hearing request was untimely, but relied upon a time calculation rooted in
the 29 C.F.R. Part 18 regulations, which govern proceedings before the Office of ALJs. Relying on the
Part 18 provisions, the ALJ imputed a "date of receipt" to the Complainant by assuming that
Complainant received the OSHA determination letter no later than five days after it was mailed. R. O.
at 3.
In this situation, we decline to apply the Office of ALJ procedural rules to events
that took place prior to the time when a case has come within the jurisdiction of the Office,
i.e., prior to filing. The relevant provisions for determining whether a timely hearing request has
been filed in a whistleblower case are found in the 29 C.F.R. Part 24 regulations. The whistleblower
regulations state explicitly that the limitations period runs from the date of a complainant's
"receipt" of the OSHA determination letter. 29 C.F.R. §24.4(d)(2). It is the Board's
view that the term "receipt" should be interpreted literally in this context, i.e., the
date that complainant actually receives the document from OSHA. Thus, when determining whether a
hearing request has been timely filed, an Administrative Law Judge should make a determination of the
date of actual receipt, and should insure that there is evidence supporting the "date of receipt"
determination in the administrative record. If there is a dispute as to the actual date of receipt, the
complainant bears the burden of establishing that his or her request for hearing was timely filed.