ORDER OF REMAND TO THE OFFICE OF
ADMINISTRATIVE LAW JUDGES
The above-captioned cases, arising under the employee
protection provision of the Energy Reorganization Act of 1974, as
[Page 2]
amended, 42 U.S.C. § 5851 (1982), are before me for review of the
recommended dispositions submitted by the administrative law
judge (ALJ) assigned to each case. 29 C.F.R. § 24.6 (1990).
On October 5, 1990, ALJ Daniel L. Stewart concluded that
Case No. 91-ERA-00001 involved a complaint dated September 19,
1990, which he believed had not been investigated by the Wage and
Hour Division, and that evidence in the record of an appeal
related to an earlier complaint dated August 23, 1990, apparently
docketed as 90-ERA-58. ALJ Stewart ordered remand to the
District Director of the Wage and Hour Division for a
determination as to the September 19, 1990, complaint.
On December 12, 1990, ALJ Bernard J. Gilday, Jr., determined
that Case No. 91-ERA-11 also involved the September 19, 1990,
complaint, albeit as amended, and he, therefore, recommended that
the case be stricken and that all documents related thereto be
consolidated with 91-ERA-00001.
Upon review, it appears that the above-captioned cases were
properly docketed as two distinct cases and that both are
currently ripe for adjudication. Consequently, I disagree with
the ALJs' recommendations. I note, however, that these ALJs were
without the benefit of the full records in both cases, including
briefs filed by the parties, which are before me.
First, the parties point out that Complainant filed an
initial complaint in June 1990, and that complainant's appeal of
the Secretary's preliminary findings on that complaint is
docketed as 90-ERA-58 and remains pending before ALJ Gilday.
Review of the records of 91-ERA-00001 and 91-ERA-11 further
indicates the following:
(1) Complainant filed additional Complaints against
Respondent on or about August 20, 1990, and September 19, 1990.
(2) By letter dated September 21, 1990, the Wage and Hour
Division informed Complainant that its investigation of the
allegations in his August 1990, complaint did not verify
discrimination by Respondent.
(3) On September 24, 1990, Complainant appealed the
September 21, 1990, determination, and this appeal was docketed
as 91-ERA-00001.
(4) The record for Case No. 91-ERA-00001 does not contain a
copy of the August 1990, complaint; rather, it contains a copy of
the September 1990, complaint.
(5) Case No. 91-ERA-00001 was assigned to ALJ Stewart, who
mistakenly concluded that the case before him pertained to the
[Page 3]
September 19, 1990, complaint.
(6) Complainant filed an Amended Complaint dated October 17,
1990, amending his September 19, 1990, complaint.
(7) By letter dated November 16, 1990, the Wage and Hour
Division notified Respondent of its preliminary determination on
the September 19, 1990, complaint as amended, in favor of
Complainant.
(8) On November 20, 1990, Respondent appealed the November 16,
1990, determination, and the appeal was docketed as Case
No. 91-ERA-11.
(9) Case No. 91-ERA-11 was assigned to ALJ Gilday, who
erroneously determined that the case involved the same complaint
which had been assigned previously to ALJ Stewart in Case No.
91-ERA-00001.
In conclusion, it appears that Case No. 91-ERA-00001 is
Complainant's appeal of the September 21, 1990, preliminary
determination on his August 20, 1990, complaint; that Case No.
91-ERA-11 is Respondent's appeal of the November 16, 1990,
preliminary determination on Complainant's September 19, 1990,
complaint as amended on October 17, 1990; and further, that the
cases may proceed to evidentiary hearings. However, I direct the
Chief ALJ first to review and consider whether these cases, and
any others between these parties, should be consolidated in the
interest of administrative efficiency. 29 C.F.R. § 24.5(b).
Accordingly, the above-captioned cases are REMANDED to the
office of Administrative Law Judges for further proceedings in
accordance with this order.
