Dated: Mar. 19, 1997

Case No. 97-ERA-00003

In the Matter of:

JERALD JONES,
    Complainant

    v.

PACIFIC GAS & ELECTRIC COMPANY,
    Respondent

    This matter arises from a complaint filed pursuant to the Energy Reorganization Act of 1974, 42 U.S.C. §5851 ("ERA"), and its regulations, 29 C.F.R. Part 24. The complaint was filed on September 6, 1996, at the San Francisco, California office of the Wage & Hour Division, United States Department of Labor ("Wage & Hour"). For reasons not entirely clear, the San Francisco office transferred the case to the San Diego office, which, in turn, referred the case back to San Francisco. By letter dated October 25, 1996, Wage & Hour dismissed the complaint based on its finding that Complainant was not an employee within the meaning of the Act of Sun Technical Services, Inc., and/or Pacific Gas & Electric, and that he therefore lacked standing to pursue his complaint under the statute.¹ In compliance with 29 C.F.R. §24.4(d)(2) et seq., Complainant timely requested a hearing and the claim was transferred to the Office of Administrative Law Judges. By letter dated December 23, 1996, Respondent requested that the matter be remanded to Wage & Hour for investigation and determination with respect to the substantive "whistleblower" allegation. By Order dated January 28, 1997, the undersigned denied the motion; and thereafter, Respondent timely moved that the court reconsider its ruling.²

    Despite Wage & Hour's finding that Complainant is not a covered employee, Respondent nonetheless concedes that Complainant is a covered employee under the ERA, and accordingly, that issue shall not be revisited. With regard to Respondent's contention that it was never served with the complaint and that the matter should thus be remanded to Wage & Hour, I find and conclude, for the reasons set forth infra, that going forward to trial, in the absence of an intervening remand, does not violate Respondent's, or indeed, any party's, due process rights herein.

    Thus, accepting as fact that Respondent did not receive the complaint, or notice of determination, from the administrator pursuant to 29 C.F.R. §§24.4(a) and (d)(1), Respondent nonetheless had some awareness although, certainly not legal notice of

its involvement in the case, as well as of the status of the complaint, by virtue of motions filed by Complainant and copied to Respondent. Further, the fact that Respondent did not have an opportunity to present its case in the context of the Wage & Hour investigation, does not adversely affect Respondent because the proceeding before the administrative law judge is de novo, and not based on any findings, however deficient, developed below.³

    There is an additional basis for not allowing, at this stage of the matter, an intervening remand to Wage & Hour. The ERA has, inter alia, a broad remedial purpose of protecting workers from retaliation based on their expressed concerns regarding safety, as well as with respect to the quality of the work performed at a covered facility. In furtherance of this purpose, Congress formulated expeditious time frames for the investigation and litigation of complaints.⁴ Under the circumstances herein, and based on the above discussion regarding a de novo trial before an administrative law judge, a remand would not prejudice Respondent, but it might so prejudice Complainant by running counter to the Congressional intent that such complaints be expeditiously resolved. With this in mind, the procedural history of this case reflects that, while the Wage & Hour investigation may have been deficient with respect to the paucity of its findings, it nonetheless failed to efficiently utilize the investigative period by committing certain errors in the processing of the complaint. The first problem involved the unnecessary forwarding of the complaint to San Diego, and its return to San Francisco. The next error was Wage & Hour's reliance on regulations no longer in effect.⁵ As to the third error, the failure of notice to Respondent, this omission would, under other statutory schemes, be a clear violation of due process. In the context of the ERA, however, where the trial before the administrative law judge is de novo, and given the factual circumstances of this case in which notice was provided to Respondent immediately upon referral of the case to the undersigned, I find Wage & Hour's failure to properly notice Respondent to be harmless error, and as fully discussed above, insufficient to warrant a remand.

    Respondent offers additional reasons as to why a remand to Wage & Hour is warranted, one of which falls within the general context of what constitutes an "appeal" under the ERA. Respondent first points out that the only issue addressed by Wage & Hour was Complainant's status as a covered employee within the meaning of the Act. Further, Respondent concedes that Complainant is such a covered employee. Respondent thus reasons that because it has conceded the only issue extant, that there are no other issues to be addressed on appeal to the administrative law judge. Respondent's use, and interpretation, of "appeal" within the context of the ERA is inapposite. Thus, the word "appeal" is most often used to describe a proceeding which is limited to a review of issues litigated below. Under the ERA, however, the hearing before an administrative law judge is, as has already been pointed out, de novo. This means that the litigation to be carried out before this court is not only not limited as to issue, but is also the court before which the record is created. It is this record, as yet inchoate as to this case, which will be

    In the instant case, Wage & Hour, in its investigation of the matter herein, found facts which led it to determine that Complainant was not an employee and, at that point, ceased the investigation, never reaching a conclusion regarding whether or not the asserted discrimination had, in fact taken place. I find, however, that Respondent's asserted distinction between a flawed investigation, qua Billings, and the assertedly incomplete investigation, does not control. The question that is relevant, and which must be answered, is whether Respondent's due process right to fully present its case is in fact satisfied. I f ind that those rights are fully satisfied herein, because Respondent will have the opportunity to fully present, and argue, its case in an on-the-record, de novo proceeding before the undersigned.⁶

    Based on the foregoing, I find no basis for granting Respondent's Motion for Reconsideration, and it is hereby DENIED.

      JOAN HUDDY ROSENZWEIG
      Administrative Law Judge

¹ Complainant did not name Sun as a respondent with respect to this complaint. Further, while Complainant was found not to be an employee within the meaning of the Act with respect to PG&E, that corporation did not receive notification from Wage & Hour as to this, or any other, finding. See discussion, infra.

² It is noted at this juncture, that subsequent to the filing of this complaint with the Administrator of the Wage & Hour Division, the Secretary of Labor, by Order 6-96 dated December 27, 1996, transferred to the Assistant Secretary for Occupational Safety and Health, permanent authority to investigate and resolve such complaints. Delegation of Authority and Assignment of Resp. To the Assistant Secretary for Occupational Safety and Health, 62 Fed. Reg.111 (Jan. 2, 1997); Delegation of Authorities and Assignment of Resp. To the Assistant Secretary for Employment Standards and Other Officials in the Employment Standards Admin., 62 Fed. Reg. 107 (Jan.2, 1997).

³ It is noted, in passing, that both parties herein are represented by counsel, and that while such representation is not determinative, they will have equal opportunity to develop and present their respective cases during the time set for discovery, as well as at trial.

⁴ The court notes that a complainant may waive such expedited time frames, for example, if a complainant determines that an extended discovery calendar will benefit his or her case.

⁵ The administrator's notice of determination instructed Complainant that if he wished to contest the administrator's findings and request a hearing, that such a request must be filed by "telegram." By letter dated November 1, 1996, Chief Administrative Law Judge John M.Vittone notified the administrator that the regulations had been amended to expand the manner in which requests for hearings could be filed. The regulatory change cited by Chief Judge Vittone antedated the notice of determination herein.

⁶ Respondent offered an additional argument that holding the trial near to Complainant's place of residence in Tennessee, would result in significant cost and disruption of business. It has since been determined that the trial will be held in California, as close to the work site as can be arranged. See 29 C.F.R. §24.5(c), which specifies that a hearing shall be held at a location within 75 miles of Complainant's residence, unless waived by Complainant. Subsequent to Respondent's reconsideration motion, Complainant so waived in his Response to Order Denying Remand and Setting Discovery Calendar, dated February 8, 1997, in which Complainant requested that the hearing be held in the vicinity of Diablo Canyon, California (Complainant's Response at 2).