DECISION AND ORDER OF REMAND TO THE
WAGE AND HOUR ADMINISTRATOR
The Preliminary Decision and Order on Timeliness of Complaint
of Administrative Law Judge (ALJ) Joel R. Williams (ALJ Decision),
issued on January 27, 1987, in the above-captioned case which
arises under the employee protection provision of the Energy
Reorganization Act (Act), 42 U.S.C. § 5851 (1982), and the
implementing regulations at 29 C.F.R. Part 24 (1986), is before
me for review pursuant to 29 C.F.R. § 24.6.
The Texas Area Director of the Wage and Hour Administration
rejected John Rex's complaint as untimely filed under the Act's
thirty-day filing requirement because the envelope containing
the complaint was postmarked October 22, 1986, thirty-one days
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after Mr. Rex was notified of his termination. On appeal, the
ALJ found that Mr. Rex's complaint was mailed on October 21, 1986,
based upon the date on the complaint itself and the affidavit
of Mr. Rex's attorney, which states, in part:
I was retained by John C. Rex on October 16,
1986 to prepare a complaint pursuant to Section 120
of the Energy Reorganization Act.
After the preliminary interview and investigation
a complaint was prepared and finalized on October 21,
1986.
The complaint was placed in the United States
Mail, postage prepaid, on October 21, 1986. The
complaint was placed into a mail box in front of the
post office in Appleton, Wisconsin between 6:00 pm
and 6:30 pm. The mail box stated on the out side
that the last pick up was at 7 pm.
After complainant's attorney learned of the
position of the Wage and Hour Division that they
considered the complaint not timely filed complainant
contacted the post office to learn of the procedures
for processing mail out of Appleton, Wisconsin.
Complainant's attorney was informed by the window
clerk that mail from Appleton and other northeastern
Wisconsin cities was picked up by truck and taken to
Oshkosh, Wisconsin which is the processing station
for all mail in the area. She was also informed that
although mail placed in the mailbox designated for
last pick up at 7 pm was generally postmarked on the
day it was mailed that any one or combination of
numerous factors could have occurred delaying the
postmarking in Oshkosh, Wisconsin of a letter filed
in Appleton, Wisconsin.
Affidavit of Billie Pirner Garde. See ALJ Decision at 2.
The ALJ held that the mailing of the complaint on October 21,
1986, met the thirty-day filing requirement in the Act and 29 C.F.R.
§ 24.3(b) because the period for filing commenced on September 21,
1986, the date Mr. Rex returned from his vacation and read Respondent's
termination notice, which had been delivered during Mr. Rex's absence.
See ALJ Decision at 2-4. The ALJ remanded the case to the Wage
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and Hour Administrator for an investigation on a priority basis
pursuant to 20 C.F.R. § 24.4. Id. at 5.
After consideration of the record before the ALJ, I adopt his
findings and conclusions. Accordingly, this case is remanded to
the Wage and Hour Administrator for an investigation of Mr. Rex's
complaint on a priority basis.
