U.S. Department of Labor
Office of Administrative Law Judges
1111 20th Street, N.W.
Washington, D.C. 20036
Case No. 86-ERA-7
In the Matter of
WILLIAM PYBUS
v.
WILLIAMS COATING, INC., AND
GEORGIA POWER COMPANY
ORDER
This case arises under the Energy Reorganization Act of 1974,
as amended, 42 U.S.C.. § 5851 and the regulations promulgated thereunder
at 29 C.F.R. Part 24. It is before this office for consideration
of Petitioner's Motion to Remand filed November 14, 1985 and
Respondents' Motion to Dismiss filed December 12, 1985.
On September 6, 1985 Petitioner William Pybus was discharged
by Williams Coating, Inc., a subcontractor at Georgia Power Company's
Nuclear Plant Vogtle. On Monday, October 7, 1986 Petitioner filed
a complaint with the Savannah Office of Employment Standards Administration
Wage and Hour Division of the Department of Labor (Wage
and Hour Division). The Wage and Hour Division received the
complaint October 8, 1985.
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On October 11, 1985 the Wage and Hour Division responded to
Pybus' complaint. In their response the Wage and Hour Division
stated that Petitioner had failed to file the complaint within
30 days as required by 29 C.F.R. § 24.3(b). Consequently, the
Wage and Hour Division determined that, due to the untimeliness of
the complaint, they could not take any action on behalf of Pybus.
Petitioner Pybus requested a hearing on the Wage and Hour Division's
determination by telegram dated october 23, 1985. On November 14,
1985 this office received Petitioner's Motion to Remand the instant
case to the Wage and Hour Division for investigation pursuant to 29
C.F.R. 24.4(b). Petitioner argues that the Wage and Hour Division
miscalculated the amount of time that Petitioner had to file his
complaint by failing to take into account the regulations at 29
C.F.R. § 18.4(a). According to Pybus, the last day of his allotted
30-day time frame to file his complaint fell on a Sunday: October 6,
1985. Since his last day to timely file his complaint fell on a
Sunday the regulations at 29 C.F.R. § 18.4(a) state that one is,
therefore, allowed to file on the next business day. In this case:
October 7, 1985, a Monday.
Respondents' Joint Motion to Dismiss was filed with this Office
on December 12, 1985. The basis for this Motion is that Petitioner
was required by 29 C.F.R. § 24.4(d)(2)(i) to appeal the Wage and
Hour Division's adverse determination dated October 11, 1985 within
5 days of receipt. Respondents contend that since Petitioner did
not request a hearing on the adverse determination until october 23,
1985, Petitioner's request is untimely and must be dismissed.
The controlling statute requires employees who believe that
they have been discharged in violation of the Act to file their
complaint within 30 days after the occurrence of the disputed
action. 42 U.S.C. § 5851(b)(1). The implementing regulation also
contains the 30-day filing window:
Any complaint shall be filed within 30 days after
the occurrence of the alleged violation. For the
purpose of determining timeliness of filing, a
complaint filed by mail shall be deemed filed as
of the date of mailing.
29 C.F.R. § 24.3(b). Although both provisions use similar language,
neither the statute nor the regulation gives more specific guidance
regarding commencement of the 30-day time frame.
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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:
In computing any period of time under these rules
or in an order issued hereunder the time begins
with the day following the act, event, or default,
and includes the last day of the period unless it
is a Saturday, Sunday, or legal holiday observed
by the Federal Government in which case the time
period includes the next business day.
29 C.F.R. § 18.4(a). Since neither 42 U.S.C. § 5851 nor any of
the regulations promulgated pursuant to it are in conflict with
this rule establishing a uniform reference point for time
computation, it is controlling.
It is undisputed that Petitioner William Pybus was discharged
on September 6, 1985. Under § 18.4(a) the 30-day filing period
began to run on September 7, the next day. Therefore, the thirtieth
day was Sunday, October 6, 1985. Because the last day of the filing
period was a Sunday, the rule included the next business day in the
filing window. Petitioner's complaint was filed by mail on Monday,
October 7, 1985, and was therefore filed in a timely manner.1
1
The same result would be reached if Fed. R. Civ. P. 6(a) were
applied pursuant to 29 C.F.R. § 18.1(a). The Federal Rule
states that in computing time periods, time does not begin to run
until the day after the event in question, and it also includes the
next business day in a time period which ends on a Saturday, Sunday,
or legal holiday.