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USDOL/OALJ Reporter
Office of Administrative Law Judges 1111 20th Street, N.W. Washington, D.C. 20036 Case No. 86-ERA-5 & 6 In the Matter of
KEITH RIEVLEY and
v.
PULLMAN POWER PRODUCTS AND
This is a proceeding under the Energy Reorganization Act of 1974, as amended, 42 U.S.C. § 5851 and its implementing regulations at 29 C.F.R. Part 24. On September 11, 1985 Petitioners Rievley and Maendely were discharged by Pullman Power Products, a subcontractor at Georgia Power Company's nuclear Plant Vogtle. On october 11, 1985, Petitioners filed a complaint, by mail, with the Savannah Office of the Employment Standards Administration Wage and Hour Division of the Department of Labor (Wage and Hour Division). On October 22, 1985, Petitioners were informed by letter that the Wage and Hour Division would take no action on behalf [Page 2] of their complaint because it was not timely filed. On November 3, 1985 this Office received Petitioners' Motion to Remand the instant cases to the Savannah office of the Wage and Hour Division for investigation pursuant to 42 U.S.C. § 5851 and 29 C.F.R. 24.4(b). Petitioners Rievley and Meandely characterize the determination by the Wage and Hour Division that the complaint was not timely as a "clerical error." They contend that the complaint was filed within the 30-day period set forth at 29 C.F.R. § 24.3(b). Because I agree with Petitioners' reading of that Section, their Motion will be granted. The filing period applicable in this case is set forth in both statute and regulation. The controlling statute provides:
42 U.S.C. § 5851(b)(1). The regulation implementing this provision states that:
29 C.F.R. § 24.3(b). Although both Sections use language stating that the period begins to run "after" an alleged violation, neither provision gives more specific guidance regarding commencement of the 30-day time frame. The Rules of Practice and Procedure for Administrative Hearings Before the office of Administrative Law Judges govern proceedings before this office unless inconsistent with a rule of special application contained in a statute, executive order, or regulation. 29 C.F.R. § 18.1(a). The general rule regarding time computation states: [Page 3]
29 C.F.R. § 18.4(a). Neither 42 U.S.C. § 5851 nor any of the
regulations promulgated pursuant to it are in conflict with this
rule which establishes a uniform reference point for time
computation. Since there are no inconsistent provisions applicable
to the instant case, § 18.4(a) is controlling.
It is undisputed that Petitioners Rievley and Meandely were
discharged on September 11, 1985. Under § 18.4(a) the 30-day
filing period began to run on September 12, the next day.
Therefore, the thirtieth day was October 11, 1985. Because
Petitoners' complaint was filed by mail on that day, it was
filed in a timely manner.1
The case law cited by Respondents does not change this
result. Neither Chardon v. Fernandez, 454 U.S. 6 (1981) nor
Delaware State College v. Ricks, 449 U.S. 250 (1980) are on
point. Both cases involved questions regarding when causes
of action accrued. In the instant case Petitioners, claim
accrued on September 11, 1985. However, the controlling rule
of procedure explicitly started the 30-day period running on
the day after the disputed activity. The inappropriateness
of Chardon and Ricks as authority in this proceeding is
further illustrated by the fact that in both cases the period by
which the statutes of limitation in question had been exceeded
was far in excess of one day. Therefore, the applicability of
Fed. R. Civ. P. 6(a), a rule closely analagous to § 18.4(a),
was not in issue.
In Stokes v. Pac. Gas & Electric Co., 84-ERA-6 (July 27,
1984) the Administrative Law Judge failed to consider § 18.4(a)
in his opinion. Administrative Law Judge Lindeman dismissed
Stokes' complaint as untimely. The petitioner had been notified
of his termination on October 14, 1983 and filed a complaint on
November 14, 1983. The Administrative Law Judge did consider
§ 18.4(c) which adds 5 days to filing periods when documents
are filed by mail, but declined to apply the provision because
he believed that it was inconsistent with § 24.3(b). Assuming
arguendo that this interpretation is correct, it does not follow
that the same conflict exists with § 18.4(a).
Initially, it should be noted that the portion of § 24.3(b)
which deems a complaint filed when mailed renders § 18.4(c)
unnecessary. Moreover, subsection (a) does not extend time periods.
It clarifies for purposes of computation when time periods begin
to run. Application of Respondents' interpretation of the
regulations would require an examination of the precise time of day
when Petitioners' complaint accrued and the period began running
in order to determine the time at which it expired. Otherwise
Petitioners would not be afforded the full 30 days for filing
required by statute. However, this type of factual determination
is not necessary or required. Petitioners' complaint was deemed
filed upon mailing on October 11, 1985, and under § 18.4(a) it
was timely filed.
Having concluded that Petitioners' complaint was timely, it
must be remanded for investigation by the Wage and Hour Division.
Since no investigation of this matter was conducted, a hearing
would be inappropriate at this point. While unnecessary delay
should be avoided, the Wage and Hour Division must be allowed
to investigate the complaint and render a determination on its
merits.
Accordingly, I hereby GRANT Petitioners' Motion and ORDER
this proceeding remanded to the Savannah Office of the Employment
Standards Administration Wage and Hour Division of the
Department of Labor for investigation of Petitioners' complaint
pursuant to 29 C.F.R. § 24.4.
E. EARL THOMAS
Deputy Chief Judge
Dated: JAN 13 1986
EET/JMM (SKS)/tt
1 The outcome would be the same if
Fed. R. Civ. P. 6(a) were
applied pursuant to 29 C.F.R. § 18.1(a). It states that in
computing any period of time prescribed or allowed by the rules,
by the local rules of any district court, by order of court, or by
any applicable statute, the day of the act, event, or default from
which the designated period of time begins to run shall not be
included.
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