Reid v. Niagara Mohawk Power Corp., 2001-ERA-26 (ALJ July 19, 2001)

U.S. Department of Labor

Office of Administrative Law Judges 2600 Mt. Ephraim Avenue Camden, NJ 08104 (856) 757-5312 856-757-5403 (FAX)

Issue date: 19Jul2001

CASE NO: 2001-ERA-00026

In the Matter of

JEROME REID
    Complainant

v.

NIAGARA MOHAWK POWER CORP.
    Respondent

   Respondent moves to dismiss this claim, filed under 42 U.S.C.5851, for Complainant's failure to timely request a hearing within the five (5) day limitation period as provided under 29 CFR 24.4 (d)(2).

   Complainant argues that he filed his request for hearing ¹ timely upon his receipt of a "corrected" notice of determination² . Complainant explains that the initial notice of determination ³ , at the last paragraph of page 1, and at the first paragraph of page 2, incorrectly indicates "Consolidated Edison Company of New York, Inc." as the employer (respondent) involved. Apparently upon Complainant's telephonic request⁴ , the notice was corrected to substitute Niagara Mohawk Power Corp., at these two places in the notice (ftn. 2).

   This explanation advanced by Complainant why his request for hearing should be accepted as timely filed, cannot be credited for the following reasons:

       (1) Complainant could not have filed his request for hearing when he did, on May 15, 2001, due to the timing of his receipt of the corrected notice of determination (as if he were awaiting such receipt)⁵ , simply because the notice was not mailed to him until May 16, 2001, a day after his filing.

       (2) The twice appearing incorrect reference to "Consolidated Edison- - ", is not such as might have misled Complainant, or otherwise prevent in any way a timely filing of a request for hearing. The correct name of Respondent is elsewhere in this initial notice clearly indicated, and, as a matter of fact, indicated in the very caption or reference section at the beginning of the notice, and again at the second full paragraph noting the absence of violation by Respondent found upon investigation (ALJ 1).

   On the basis of the forgoing, having found no valid reason for excusing Complainant's failure to timely file his request for hearing, it is recommended that this claim be DISMISSED.

       RALPH A. ROMANO
       Administrative Law Judge

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary 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, DC 20210. Such a 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).

¹Marked "ALJ 2", dated May 15, 2001.

²Annexed to Complainant's June 29, 2001 (ordered) response to Respondent's motion to dismiss. This document which, on its face, notes "(Corrected Copy)" is dated March 15, 2001, but was mailed to Complainant by the U.S. Department of Labor, Occupational Safety and Health Administration, on May 16, 2001- see attachments to Complainant's response.

³Marked "ALJ 1", and dated March 15, 2001.

⁴See note dated 5/16/01 of Matthew Gilmart transmitting the corrected notice to Complainant, attached to Complainant's response .

⁵Indeed, Complainant states that he filed his request for hearing "As soon as [he] received the corrected copy of the determination notice- - "(see Complainant's response at page 2.)