Walli v. Fluor Daniel Northwest, Inc., 1999-ERA-18 (ALJ Mar. 29, 2000)

U.S. Department of Labor

Office of Administrative Law Judges 50 Fremont Street, Suite 2100 San Francisco, CA 94105 (415) 744-6577 (415) 744-6569 (FAX)

DATE: March 29, 2000

CASE NUMBER 1999-ERA-18

In the Matter of

RANDALL WALLI, CLYDE KILLEN, PEDRO NICACIO, SHANE O'LEARY,
and JAMES STULL,
    COMPLAINANTS,

    v.

FLUOR DANIEL NORTHWEST, INC.,
    RESPONDENT.

   The above-captioned matter arises from a complaint filed on February 25, 1999 under the provisions of section 211 of the Energy Reorganization Act of 1974, as amended, 42 U.S.C. §5851. In brief, the Complainants alleged that the Respondent violated the provisions of section 211 by laying them off from their jobs and otherwise diminishing their opportunities to be employed as pipefitters at the Department of Energy's Hanford (Washington) Nuclear Site. These allegations were initially investigated by the Regional Administrator for the Occupational Safety and Health Administration, who issued findings in favor of the Complainants in a letter dated May 6, 1999. Thereafter, the Respondent filed a timely request for a hearing pursuant to the provisions of 29 C.F.R. §24.4. In a Notice issued on August 30, 1999, a hearing on the merits of the complaint was scheduled to begin on April 17, 2000.

   On March 13, 2000, the counsel for the Complainants submitted a letter in which he represented that the Complainants have decided to pursue their claims in the courts of the State of Washington and wish to withdraw their section 211 complaint. On March 22, 2000, counsel for the Respondent submitted a letter in which he indicated that the Respondent would oppose dismissal of this matter unless any order of dismissal explicitly provides that the May 6, 1999 findings of the Regional Administrator are also being simultaneously vacated.

   After review of the relevant regulations and case law, I conclude that the Complainants should be permitted to voluntarily withdraw their complaints, but that upon such withdrawal the findings of the Regional Administrator must be automatically vacated. Indeed, if this were not the case the Respondents would in effect be denied their statutory right to a hearing before an Administrative Law Judge. Accordingly, the aforementioned section 211 complaint is hereby dismissed and the May 6, 1999 findings of the Regional Administrator are hereby vacated.

      Paul A. Mapes
       Administrative Law Judge

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary of Labor unless, pursuant to 29 C.F.R. §24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210. Such petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).