contacted another Area Director, Jerry Stuckey, for assistance. Mr. Stuckey contacted Complainant on April 3, 1987 and explained that he was mailing a copy of the determination letter by regular mail and if Complainant did not receive the letter, she should contact him. Complainant never informed Mr. Stuckey that she did not receive the determination letter of Mr. Stewart.

    CP&L submits that Complainant did not timely appeal the denial of her complaint against it. Complainant had 5 days from receipt of the Wage and Hour Division's denial letter in order to file notice of appeal. 29 C.F.R. § 24.4(d)(2)(i). She received certified mail notices on March 9, 1987 and March 19, 1987. She also received a telephone call from Area Director Stuckey who indicated that she was going to receive the determination letter. Additionally, Complainant's counsel of record, Robert Epting, was sent a copy of the determination letter. Section 210(b)(2) provides that the determination of a complaint shall be sent to complainant or any person acting on her behalf. 42 U.S.C. § 5851. Therefore, the notice to Complainant's counsel constitutes notice to Complainant. Harper v. Burgess, 701 F.2d 29 (4th Cir. 1983). Complainant has thus received notice of the determination in three different manners, constructive notice via the certified letters, the conversation with Mr. Stuckey and ensuing letter, and notice via her attorney. Regardless of which date of notification is applied, Complainant has failed to timely appeal the determination concerning CP&L as she has failed to send an appeal telegram to the Chief Administrative Law Judge.

    Since Complainant failed to timely appeal the determination of the Area Director in regards to her complaint against CP&L, CP&L's motion to dismiss the complaint against it is granted.

Charleston Naval Shipyard

    Complainant was hired by CNS on November 19, 1985 as a nuclear engineer. She alleges that CP&L contacted CNS concerning her whistle- blowing activities, which lead to harassment and ultimate discharge by CNS in July 1986.

    CNS argues that it is not subject to the provisions of the Act because Section 210 of the Act, 42 U.S.C. § 5851, applies only to employers at nuclear power plants which are NRC licensees, or applicants for an NRC license, and contractors or subcontractors of such licensees or applicants. CNS, as a, Department of Defense utilization facility is exempt from the Act's licensing requirement. 42

U.S.C. §§ 2140, 2121.

    Section 210 of the Act provides in pertinent part:

(a) No employer, including a Commission licensee, an applicant for a Commission license, or a contractor or subcontractor of a Commission licensee or applicant, may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee)--

(1) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this Act or the Atomic Energy Act of 1954, as amended, or a proceeding for the administration or enforcement of any requirement imposed under this Act or the Atomic Energy Act of 1954, as amended;

(2) testified or is about to testify in any such proceeding or;

(3) assisted or participated or is about to assist or participate in any manner in such a proceeding or in any action to carry out the purposes of this Act or the Atomic Energy Act of 1954, as amended.

(b)(1) Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of subsection (a) may, within thirty days after such violation occurs, file (or have any person file on his behalf) a complaint with the Secretary of Labor . . . alleging such discharge or discrimination. Upon receipt of such a complaint, the Secretary shall notify the person named in the complaint of the filing of the complaint and the [Nuclear Regulatory] Commission.

Pub. L. 95-601, codified at 42 U.S.C. § 5851 (hereinafter referred to as "section 210").

    The operative question herein is whether the inclusive portion of the statute requires the employer to be an NRC licensee or applicant, or a contractor or subcontractor of such; or whether the

"including" phrase is illustrative and the section applies to all employers, regardless of their status as licensee or applicant.

    It is the Order of the Administrative Law Judge that:

(1) The claim of Patty S. Miriello against Carolina Power and Light Company is hereby dismissed, and,

(2) The claim of Patty S. Miriello against Charleston Naval Shipyard is hereby dismissed, and,

(3) The hearing presently scheduled for October 27, 1987 is cancelled.

       JAMES L. GUILL
       Administrative Law Judge

JLG/SDB/lkw