Case Nos.: 88-ERA-37/38

In the matter of

Timothy O'Sullivan,

    and

Donald W. Delcore, Sr.,

    vs.

Northeast Nuclear Energy Co.,
Division of Northeast Utilities
    Respondent

   Respondent has filed a motion to compel attendance of certain employees of the Department of Labor at deposition, and further to compel production of documents consisting of the investigatory files of the Department of Labor concerning Complainant's alleged claims of discrimination in violation of the Energy Reorganization Act (ERA). The Regional Solicitor opposes the motion to compel.

   I note first that the Energy Reorgization Act does not authorize issuance of subpoenas. I note also no written request was ever made to me or to Chief Judge Litt, as required, for the issuance of subpoenas.

   Counsel for respondent cites no Court precedents or Secretarial rulings indicating that the Office of Administrative Law Judges has authority to issue subpoenas under the Energy Reorgization Act. Accordingly, in absence of statutory authority or case law, I conclude that I have no authority to compel the attendance of government personnel for the taking of testimony in this proceeding. Therefore, the motion to compel attendance at deposition is hereby DENIED.

   Concerning the request for production of the government's investigatory files, I note first that the government is not a party in this proceeding. Moreover, the appeal taken by respondent from the adverse ruling made below my level does not involve my review of the facts found by the investigator to determine whether or not he was justified in finding against

respondent. Rather, the appeal before me requires a de novo proceeding wherein I must decide the case based solely on evidence presented at a hearing. In this proceeding before me, Complainants must present their case first, and they have the burden of showing that respondents discrminated against them in violation of the Energy Reorganization Acts they cannot merely rely on the finding made below by the Compliance Officer.

   In any event, the government has voluntarily provided most of the documentation sought by respondent under its discovery request, even though not required by the Office of Administrative Law Judges to do so. I thus deny respondent's motion relating to further discovery. I also point out here that the documents thus far furnished by the government have not been made part of the evidentiary record, and can only be treated at this time as "discovery information.. Thus, I am not bound thereby and will not consider such information in resolving the dispute between Complainants and Respondent unless same is admitted into evidence by me at a later time pursuant to the customary evidentiary rules including full disclosure and rights of cross-examination.

   The motion to compel and the relief requested by Respondent are hereby DENIED.

       CHESTER SHATZ
       Boston District Chief Judge

Dated OCT 05 1988

Boston, Massachusetts
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