DATE: December 8, 1994
CASE NO. 92-CAA-3
IN THE MATTER OF
MICHAEL R. CROSIER,
COMPLAINANT,
v.
WESTINGHOUSE HANFORD COMPANY,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
ORDER DENYING REQUESTS FOR RECONSIDERATION
This case arises under the employee protection provision of
the Solid Waste Disposal Act (SWDA), 42 U.S.C. § 6971
(1988). [1] Earlier, I issued a Decision and Order (Jan. 1994
Dec.) in which I dismissed the complaint because Complainant
Michael Crosier did not timely request a hearing before an
Administrative Law Judge (ALJ). In addition, assuming that the
hearing request was timely, I found that Crosier did not
establish a prima facie case of a violation of the SWDA.
Finally, assuming that he established a prima facie case, I found
that Crosier did not persuade that Westinghouse violated the
SWDA. Accordingly, I also dismissed the complaint on its merits.
The Administrator of the Wage and Hour Division of the
Department of Labor has filed a Motion for Reconsideration of
certain rulings in the January 1994 Decision, as has Crosier. [2]
Westinghouse filed statements opposing both motions.
A brief recitation of prior proceedings will focus the
discussion.
I. Prior proceedings
In a 1991 complaint, Crosier contended that Westinghouse
violated the SWDA when it denied him access to its Hanford
[PAGE 2]
facility, [3] which had the effect of preventing Crosier from
working there as an independent contractor. After an
investigation, the Assistant District Director of the Wage and
Hour Administration notified Crosier by letter that the complaint
lacked merit because Westinghouse had a valid and reasonable
basis for denying him access (notice of determination).
The governing regulation at 29 C.F.R. § 24.4(d)(2)(i)
(1992) provides in relevant part:
If on the basis of the investigation, the Administrator
determines that the complaint is without merit, the
notice of determination shall include, or be
accompanied by notice to the complainant that the
notice of determination shall become the final order of
the Secretary denying the complaint unless within five
calendar days of its receipt the complainant files with
the Chief Administrative Law Judge a request by
telegram for a hearing on the complaint.
The record does not reveal the date that Crosier received
the notice of determination. [4] In March 1992, Crosier sent
a telegram to the Seattle office of the Wage and Hour
Administration indicating that he requested a hearing. The Chief
ALJ received Crosier's mailgram requesting a hearing on the
complaint about one week later.
After a hearing, the ALJ issued a Recommended Decision and
Order denying the complaint. The ALJ found that neither the
complaint nor the hearing request was timely filed and
recommended dismissal on that basis. Assuming timeliness, the
ALJ found on the merits that Crosier did not establish a prima
facie case of discrimination and that Westinghouse demonstrated a
legitimate reason for denying him access to the Hanford facility.
On review of the ALJ's decision, I found that the complaint
was timely filed, Jan. 1994 Dec. at 7-9, but agreed that the
hearing request was not timely. Since the record did not
show the date of actual receipt of the notice of determination, I
applied the "mailing rule" at 29 C.F.R. § 18.4(c)(3) and
deemed the notice to have been received on the fifth day after it
was mailed. Jan. 1994 Dec. at 10. I found that under the
regulation, the telegram to the Chief ALJ requesting a hearing
was due on March 9, 1992. Id. Since Crosier sent a
mailgram to the Chief ALJ's Office on March 12, 1992, which was
received on March 19, I found that the hearing request was
untimely. Id. Further, I decided that Crosier's reason
for not timely filing the hearing request, that he was "on
travel" and did not promptly receive the notice of determination,
did not justify equitable tolling of the deadline for filing a
hearing request. Id. at 10-11. Accordingly, I found that
pursuant to 29 C.F.R.
[PAGE 3]
§ 24.4(d)(2)(i), the notice of determination became the
Secretary's final order denying the complaint. Id. at 11.
Assuming that the hearing request was timely, I found on the
merits that Crosier did not establish a prima facie case under
the employee protection provision because he did not show that he
engaged in protected activities or that Westinghouse was aware of
those activities when it denied him access to the Hanford site.
Jan. 1994 Dec. at 13-14. Further assuming that Crosier
established a prima facie case, I found that Westinghouse
articulated a legitimate reason for denying access, that Crosier
had admitted taking a pistol into and out of the secured area
at a different nuclear power plant. Id. at 14. Finding
that Crosier did not persuade that Westinghouse's stated reason
was not credible or that Westinghouse denied access for a reason
prohibited by the SWDA, I dismissed the complaint on the merits.
Id. at 13-15.
II. Motions for Reconsideration
The Wage and Hour Administrator does not take issue with the
ruling on the merits, but rather seeks reconsideration of some of
the rulings on the timeliness of the hearing request (Adm.
Motion). She disagrees that the timeliness of a hearing request
may be based on constructive receipt of the notice of
determination, or that service on a Department official other
than the Chief ALJ "cannot serve as an equitable basis for
satisfying the requirement of service upon the Chief ALJ." [5]
Adm. Motion at 1. The Administrator contends that these rulings
"will deny complainants and respondents their opportunity to
timely request a hearing on a determination of the Administrator
adverse to their position." Id. at 2.
Westinghouse opposes the motion on the ground that the
governing regulation, 29 C.F.R. § 24.4(d)(2)(i), leaves no
discretion as to whether the determination of the Administrator
becomes the final order of the Secretary if the hearing request
is not timely filed. West. Opp. to Adm. Motion at 2-4.
Westinghouse further contends that Crosier did not establish a
basis for equitable tolling of the time limit for filing the
request. Id. at 5-9.
Crosier argues that on reconsideration, the hearing request
should be deemed timely because the telegram company made the
decision to send a slower mailgram rather than a telegram to the
Chief ALJ. Crosier Mot. at 1-2. [6] Concerning the merits,
Crosier contends that new evidence justifies reconsidering the
January 1994 decision. He argues that in the past he had
"audited" the individuals who denied him access to the Hanford
facility, that he was offered a job at Westinghouse's Savannah
River facility within 30 days of the denial of access to Hanford,
and that he was offered a job at Westinghouse's Fernald, Ohio
[PAGE 4]
facility within 60 days of the denial. Id. at 2.
In opposition, Westinghouse argues that Crosier's motion for
reconsideration is not permitted by the regulations and his only
recourse was to seek judicial review within 60 days of the
January 1994 decision. West. Opp. to Crosier Motion at 2. It
further contends that Crosier has not shown that the purportedly
"new evidence" could not have been produced at the hearing, as 29
C.F.R. § 18.54(c) requires for accepting evidence after the
close of a hearing. Id. at 4-9.
III. Analysis
Westinghouse correctly points out that there is no explicit
authority in the SWDA for the Secretary to reconsider a final
decision. In prior cases under analogous statutes that do not
explicitly provide for reconsideration, I have assumed that as
the Secretary has the same inherent authority to reconsider final
decisions, as other agencies. SeeBartlik v. Tennessee
Valley Authority, Case No. 88-ERA-15, Order, July 16, 1993,
slip op. at 4, pet. for reviewdismissedsub nom.Bartlik v. United States Dept. of Labor, 34 F. 3d 365 (6th
Cir. 1944); Dun & Bradstreet v. U.S. Postal Service, 946
F.2d 189, 193 (2d Cir. 1991), and cases there cited. In
Bartlik, 34 F.3d 365, the Sixth Circuit held that the
Secretary does not have such inherent authority and that requests
for reconsideration of the Secretary's final decisions are a
mullity. The Bartlick decision is not binding in this
case, which arose within the ninth curcuit.
Again assuming that I have inherent authority to reconsider
final decision, I will first consider Crosier's request to
reconsider the merits of the decision on the ground of new
evidence. Under the applicable regulations, 29 C.F.R.
§ 18.54(c):
Once the record is closed, no additional evidence shall
be accepted into the record except upon a showing that
new and material evidence has become available which
was not readily available prior to the closing of the
record.
To meet the requirements of that provision, the moving party must
show that the newly discovered evidence was not available at the
time of the hearing due to excusable ignorance. Boyd v.
Belcher Oil Co., Case No. 87-STA-9, Sec. Dec. and Ord., Dec.
2, 1987, slip op. at 3; McDaniel v. Boyd Bros. Transp.,
Case No. 86-STA-6, Final Ord. of Dismissal, Mar. 16, 1987, slip
op. at 4.
Crosier's own motion shows that he could have presented at
the hearing the "new evidence" he now seeks to introduce into the
record. Crosier clearly knew at the time of hearing that he had
"audited" the work of the personnel who denied him access to
[PAGE 5]
Hanford. Crosier also wants the Secretary to consider that
within 30 days of the July 1991 denial of access, he "was offered
a job at the Westinghouse Facility in Savannah River, South
Carolina." Crosier Mot. at 2. The hearing occurred over one
year later. Moreover, Crosier offers as "new evidence" the
statement that "as the Hearing was being conducted Mr. Crosier
had been present at [Westinghouse's facility at Fernald, Ohio]
for some six months working as a Principal Engineer." Since this
evidence clearly was available, Crosier should have presented it
at the hearing.
On the merits, the January 1994 decision found that Crosier
did not show that he engaged in protected activities or that
Westinghouse was aware of those activities when it barred him
from Hanford. Crosier has not demonstrated that the evidence
cited in his motion is material to establishing either protected
activities or Westinghouse's knowledge of them. Thus, there is
no indication that the evidence is material in that its admission
could alter the outcome. SeeGunderson v. Nuclear
Energy Services, Inc., Case No. 92-ERA-48, Final Dec. and
Order, Jan. 19, 1993, slip op. at 6 (no reopening of final decision
where alleged new evidence would be irrelevant to determination whether complainant was discharged illegally). Accordingly, I
will not reconsider the merits of the January 1994 decision.
Although the Administrator's arguments concerning the
timeliness of the hearing request seem meritorious, it is not
necessary or in the interest of economy to reconsider the ruling
on timeliness. Even if the hearing request were found to be
timely, it would not alter the ultimate outcome: dismissal of
the complaint on the merits.
The requests for reconsideration of the January 1994
Decision are DENIED.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1]
Complainant also alleged jurisdiction in this case under the
Clean Air Act (CAA), 42 U.S.C. § 7622 (1988), and the Energy
Reorganization Act of 1974 (ERA), 42 U.S.C. § 5851 (1988).
In a Decision and Order issued on January 12, 1994, I found that
Complainant did not state a cause of action under the CAA, and
that at the time he filed this complaint, the ERA did not cover
employees, contractors, or subcontractors to the United States
Department of Energy, such as Complainant.
[2]
Crosier's unsigned, prose motion was sent to
Westinghouse but not to the Secretary. Westinghouse has provided
a copy.
[3]
Since mid-1987, Westinghouse has been the principal managing
contractor to the Department of Energy, the regulator of the
Hanford nuclear reservation.
[4]
Westinghouse faults Crosier for the lack of this information in
the record. Westinghouse' Opposition to Adm. Motion for
Reconsideration (West. Opp. to Adm. Motion) at 5 n.5 and 7 n.6.
[5]
The Administrator argues that Crosier served the hearing request
upon the Office of the Solicitor. The record reflects, however,
that Crosier mistakenly sent a telegram requesting a hearing to
the Assistant District Director of the Seattle Office of the Wage
and Hour Administration. Jan. 1994 Dec. at 10 n.6. The record
does not show that he also sent a telegram to the Office of the
Solicitor.
[6]
I note that in proposed changes to 29 C.F.R. Part 24, the
Department has recommended that a hearing request may be filed by
"facsimile (fax), telegram, hand-delivery, or next-day delivery
service (e.g., overnight couriers), to conform the regulations to
current business practices" and that the request must be received
"within five business days" rather than five calendar days.
Department of Labor, Notice of Proposed Rulemaking, 59 Fed. Reg.
12506 (Mar. 16, 1994).
