U.S. Department of Labor  Administrative Review Board
                              200 Constitution Avenue, N.W.
                              Washington, D.C. 20210


In the Matter of:

ROGER J. BACKEN,                       CASE NO. 95-ERA-46

     COMPLAINANT,                      DATE: June 7, 1996

v.

ENTERGY OPERATIONS, INC.,

     RESPONDENT.

BEFORE:    THE ADMINISTRATIVE REVIEW BOARD[1]


                         FINAL DECISION AND ORDER

     This matter comes before the Administrative Review Board
(the Board) for review of the Recommended Decision and Order (R. 
D. and 0.) of the Administrative Law Judge (ALJ) in this case
which arises under Section 211,[2] the employee protection
provision, of the Energy Reorganization Act of 1974, as amended
(ERA), 42 U.S.C. § 5851 (1988 & Supp.  IV 1992).  The ALJ
ruled that Complainant's request for an evidentiary hearing was
untimely filed under applicable law, 29 C.F.R. §
24.4(d)(2)(I), and (ii) and, therefore, recommended dismissal of
the complaint.

                               BACKGROUND

     The initial decision of the Regional Supervisor of the
Occupational Safety and Health Administration (OSHA) was issued
on July 8, 1995 and Complainant received the decision on July 10,
1995.  The regulation at 29 C.F.R. § 24.4(d)(2)(I) states
that the initial determination, " . . . shall become the final
order of the Secretary denying the complaint unless within five
calendar days of its receipt the complainant files with the Chief
Administrative Law Judge a request by telegram for a hearing on
the complaint." Complainant's request for a hearing in this case,
while dated July 11, 1995, was not mailed until July 22, 1995.[3]

     In addition to being untimely the notice was sent by regular
mail, which is not authorized by the regulations.  Also, a copy
of the notice was not filed with the Respondents as required by
the applicable regulation.  Finally, the ALJ issued an Order to
Show Cause (in response to Respondent's Motion to Dismiss for
Failure to Timely File Notice of Appeal) and Complainant
confirmed, without adequate explanation, that he had missed the
deadline and 
[PAGE 2]
proceeded to urge consideration of the merits of his complaint. 
R. D. and 0. at 2.


DISCUSSION AND CONCLUSIONS

     While filing periods may, under certain specific
circumstances, be subject to equitable tolling,[4] this
Complainant has not demonstrated the right to avail himself of
any of the recognized tolling exceptions.[5] Rather, it appears
that Complainant simply chose to ignore certain procedural
requirements of the ERA's employee protection provision.

     The initial letter of decision contained specific
instructions regarding the proper way to file an appeal. 
Complainant was on notice with regard to the ERA's procedural
requirements and time limitations and failed to comply.  The law 
is clear that the time limitation period is to be strictly
construed.  Gunderson v. Nuclear Energy Services, Inc.,
Case No. 92-ERA-48, Sec. Dec.  Jan. 19, 1993.

     Accordingly, this complaint is DISMISSED and the initial
determination (copy appended) of July 8, 1995 is hereby adopted
as the final order in this case.

     SO ORDERED.

                                   DAVID A. O'BRIEN
                                   Chair

                                   KARL J. SANDSTROM
                                   Member

                                   JOYCE D. MILLER
                                   Alternate Member


[ENDNOTES]

[1]  On April 17, 1996, the Secretary of Labor delegated
authority to issue final agency decisions under, inter alia, the
Environmental Reorganization Act and its implementing regulations
to the newly created Administrative Review Board.  Secretary's
Order 2-96 (Apr. 17, 1996), 61 Fed.  Reg. 19978, May 3, 1996
(copy attached).

     Secretary's Order 2-96 contains a comprehensive list of the
statutes, executive orders and regulations under which the
Administrative Review Board now issues final agency decisions.  A
copy of the final procedural revisions to the regulations (61
Fed.  Reg. 19982), implementing this reorganization is also
attached.

[2]  Section 211 of the ERA was formerly designated Section 210,
but was redesignated pursuant to Section 2902(b) of the
Comprehensive National Energy Policy Act of 1992 (CNEPA), Pub. 
L. No. 102-486, 106 Stat. 2776, which amended the ERA effective
October 24, 1992.

[3]  In order to have been timely filed, Complainant's notice
would have had to be 
[PAGE 3]
received by the Office of Administrative Law Judges by July 15,
1996. 29 C.F.R. § 24.4(d)(2)(I).

[4]  See Zipes v. Trans World Airlines, Inc., 455 U.S.
385, 393 (1982).

[5]  Equitable tolling has been applied in whistleblower cases
where "the plaintiff has in some extraordinary way been prevented
from asserting his rights, or..... raised the precise statutory
claim in issue but has mistakenly done so in the wrong forum."
School District of City of Allentown v. Marshall, 657 F.2d
16, 19-20 (3rd Cir. 1981), quoting Smith v. American President
Lines, Ltd., 571 F.2d 102, 109 (2d Cir. 1978).