DATE: March 15, 1991
CASE NO. 87-ERA-0007

IN THE MATTER OF

MICHAEL B. HETTINGER,
    COMPLAINANT,

    v.

GPU NUCLEAR CORPORATION,
    RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

   On July 11, 1989, the Secretary issued an order directing the parties to show cause why this case should not be remanded to Administrative Law Judge (ALJ) Hedley G. Pingree for a hearing on complainant's complaint. This order resulted from the fact that it was unclear whether Complainant's complaint against Respondent filed pursuant to the Energy Reorganization Act of 1974, 42 U.S.C. § 5851 (1982), had been settled by the parties. The July 11th order, therefore, also directed the parties to file a copy of their agreement, if they had settled the ERA complaint.

   In response to the Secretary's order, Complainant advised, by mailgram dated July 25, 1989, that his case was pending before an arbitrator who had not yet issued a decision. Complainant expressed no view as to a remand, apparently because he believes (erroneously) that the arbitrator's decision¹ pursuant to the collective bargaining agreement of Complainant's union is reviewable in this proceeding under the ERA. Respondent, however, objected to a remand of this case on several grounds, the essence of which is that Complainant had agreed to withdraw his ERA complaint when his union agreed to process his grievance, and that Complainant is now estopped from repudiating this withdrawal.² Leonard M. Quittner, Complainant's former counsel, also responded to the show cause order advising that he had been removed from the case, on July 2, 1987, because Complainant's union was going to represent him in all further proceedings. Letter of August 8, 1989, from Quittner to Secretary Dole.

   Review of these responses, along with the rest of the case record, leads to the conclusion that the parties had agreed that Complainant would withdraw his ERA case and would resolve his complaint against Respondent through arbitration. Complainant does not deny that he agreed to withdraw his complaint. Indeed, in his response to the Secretary's Order of October 13, 1987, complainant makes clear that he had withdrawn his ERA complaint and refers to the "official announcement of my withdrawal of the complaint . . . ." See Complainant's letter of November 9, 1987, to the Secretary of Labor. The record also reveals that the fact that Complainant had withdrawn his complaint had been communicated to the ALJ, see letter of July 2, 1987, from Leonard Quittner to the ALJ, and that Complainant withdrew his complaint because he was pursuing his claim in another forum. While Complainant informed the Secretary in response to the 1980. show cause order that he intended to pursue his claim "as long as necessary," given the previous indications that Complainant intended to withdraw his complaint, I construe this statement to refer to his grievance and not to his ERA complaint. On the basis of these facts, I find that cause has been shown that this case should not be remanded for hearing.

   Withdrawal of ERA complaints is covered by Rule 41(a) of the Federal Rules of Civil Procedure. Rule 41(a)(1)(i) provides for dismissal of an action "by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs . . . ." In ERA cases, the filing of a request for hearing by the employer is the equivalent of an answer for purposes of Rule 41. See Nolder v Kaiser Engineers, Inc., Case No. 84-ERA-5, Sec. decision, June 28, 1985, slip op. at 8. Here, Complainant filed the request for a hearing. Complainant's withdrawal, therefore, falls within Rule 41(a) (1) (i). Cooper v. Bechtel Power Corporation, Case No. 88-ERA-2, Sec. Order of Dismissal, September 29, 1989.

   Accordingly, this case is DISMISSED without prejudice.

   SO ORDERED.

       LYNN MARTIN
       Secretary of Labor

Washington, D.C.

¹ Subsequently, on December 1, 1989, Respondent forwarded a copy of the decision issued on November 13, 1989, by Arbitrator John M. Skonier denying Complainant's grievance.

² Respondent also contends that the arbitration proceeding afforded Complainant "a forum and a full opportunity to call witnesses and present evidence regarding his claim of discrimination in retaliation for conduct protected by the Energy Reorganization Act . . . . " Response of Respondent GPU Nuclear Corporation to Order to Show Cause, dated August 7, 1989, at 3-4.