Case No. 81-ERA-6

In the Matter of

MICHAEL COTTER

    v.

CONSOLIDATED EDISON COMPANY
OF NEW YORK

    This is a proceeding brought under the provisions of the Energy Reorganization Act of 1974, 42 U.S.C. 5851, hereinafter called the Act, and its implementing regulations, 29 CFR Part 24. In this proceeding, the Complainant, Michael Cotter, seeks job reinstatement, back pay, and attorney fees from the Respondent, the Consolidated Edison Company of New York. The complaint is that the Respondent-Employer discharged him because he was vigorous in pursuing elimination of safety violations, rather than the alleged offense of threatening to kill his supervisor.

    The Complainant initially attempted to file his complaint with the Occupational Safety and Health Administration, but was subsequently referred to the Wage and Hour Division, U.S.

Department of Labor, whereupon an investigation was conducted which found that discrimination was at least one of the motives which led to his dismissal, and recommended reinstatement with back pay. The Respondent appealed this decision to the Office of Administrative Law Judges for a formal hearing.

    Pursuant to a notice issued on April 8, 1981, the hearing was commenced in New York, New York, on May 12, 1981, and continued on May 19th, 20th and 21st. This recommended decision is based upon the entire record of the proceedings.

    The Complainant testified that he had been employed by the Respondent since July 1, 1959, and from 1965 up until the time he was discharged he was a Boiler Overhaul and Turbine Overhaul Mechanic in the Field Operations Group, assigned as needed to various stations in the Edison System. He worked at the Indian Point nuclear power plant on several occasions including during the recent outage. The Complainant was active in union affairs, holding various elected positions, and since May 1978, was a member of the union's Nuclear Safety Committee.

    He stated that in the 19 years in which he worked for Con Edison prior to 1978 he had received only two disciplinary actions by his supervisors. In 1968 he was written up for being insubordinate because he refused to leave his supervisor's office until he received an answer concerning a safety complaint (Tr. 572). In 1972, he was involved in an incident in which he was allegedly assaulted by another employee while on the job.

    Shortly after Mr. Ferdinand Dorrer became the General Foreman of the Field Operation Group, Cotter became involved in a dispute with him concerning procedures involved in removing the wheels of a spindle in which the procedure was alleged to be unsafe. Mr. Dorrer insisted that the procedure being used was safe although as a result of the complaint relayed by Cotter, the procedure was modified (Tr. 581). He recounted another incident in the Ravenswood Station concerning insulation and other hazards, in which he alleged that Dorrer was slow to make corrections, because of concern for time schedules (Tr. 583). He also recounted an incident in 1978 during an outage at Indian Point in which a complaint was brought to Mr. Dorrer concerning use by one of his foremen

of a vaccum cleaner with an inappropriate filter in which he was told by Dorrer that the appropriate filters were not available, although they were subsequently found in the back of the store room (Tr. 591). It should be noted that although some of these complaints were non-nuclear in character, the complaint with respect to the vaccum filter in 1978 was between Dorrer and Cotter, and the final exchanges which preceded the incident which culminated in Mr. Cotter's dismissal occurred at the Indian Point nuclear facility. Furthermore, according to Cotter, the frequency of incidents in which he was adversely involved with Dorrer increased after he became a member of the Nuclear Safety Committee. He testified that Dorrer ordered him to duties which would isolate him and make him less accessible to receive complaints from his coworkers. (Tr. 602) He also related an incident which occurred on December 22, 1978, at Ravenswood Station, a non-nuclear facility, where he was found to be missing from the job for approximately fifteen or twenty minutes by Dorrer. According to Cotter, Mr. Dorrer was unreceptive to any explanation, and he was given a seven hour suspension. A grievance was filed and an Arbitrator ruled in the company's favor (Tr. 608). In February of 1979, there was another incident in which Mr. Cotter failed to work a twelve hour shift as previously agreed because of a snow storm, for which he received a warning. In addition, there was another incident in the same month in which similar action was taken because he left the facility because of illness. (Tr. 613) According to the Complainant's counsel this evidences a pattern of harassment which coincidentally followed the appointment of Mr. Cotter to the Nuclear Safety Committee. Another incident occurred in June 1980 in which Mr. Cotter was docked time for not having returned from a medical appointment in a compensation case. At that time, he was assigned to Ravenswood, and was working from 7 to 3 (Tr. 620). Dorrer checked with the physician and found that he had left before 11:00 a.m. Initially he was docked 8 hours, but after seeing Mr. Kinkel, who was over Dorrer, he was paid for 3 1/2 and lost 4 1/2 hours wages for being off the job. Cotter contended that had he reported for work, it would have been almost time to return. A major incident was described by Mr. Cotter which occurred in the fall of 1980 when he was assigned to the Indian Point Nuclear Power Plant. After some publicity was given to the Plant concerning the outage, it was noted that while visits were being made by the press and representatives of the Nuclear Regulatory Commission, considerable attention was given to

safety standards. After they left the site, and productivity picked up, safety standards seems to decline (Tr. 645). Mr. Cotter recalled making complaints about open holes and urged the construction of barricades of some permanent nature. He charged that the supervisors resisted the making of improvements, or suggested alternate measures which he regarded to be unsatisfactory. He also made complaints concerning proper housekeeping under the reactor, contaminated tools lying about, drop lights being on the floor instead of overhead, and although complaints were made to Mr. Ruez, the area was not sanitized or placed in proper order because staff was "very busy and didn't get a chance to clean." (Tr. 652) He relayed these complaints to John Odendahl, another union representative involved with safety, who set up a meeting with Mr. Monti, Plant Manager concerning safety complaints on November 20th. Another major incident was one in which he complained to Fred Dorrer on November 19th, concerning dust around a big spindle which was being sandblasted. According to Cotter there was disagreement with respect to the appropriate remedy to protect nearby workers from inhalation of noxious elements, including aluminum oxide. According to Cotter, Dorrer resisted a procedure which ultimately turned out to be the successful solution to the problem and instituted procedures which were unsatisfactory. Cotter described in detail his efforts to prevent Dorrer from continuing with the sandblasting until appropriate action was taken. Eventually the complaint reached upper management and the job was ordered to be stopped until Dorrer corrected the situation. (Tr. 664) Cotter also told of an incident concerning inappropriate assignment of duties according to work permit numbers (which prescribed among other things the appropriate clothing to wear on a particular assignment). After explaining to Mr. Kinkel (Dorrer's supervisor) that certain employees were inappropriate assigned, Kinkle indicated that all were under the same work permit number and he gave a number, which Cotter checked out and was revealed to be a supervisors inspection number (Tr. 671). He brought this to Kinkel's attention, but he insisted that the job be completed over the objection of Mr. Cotter. Kinkle's response was that he was going to obtain a general work permit to permit employees of various classifications to work on the same job.

Allegedly this was impossible. As a result of all these safety complaints a general meeting with management was held on November 20th at which all employees, including Cotter, were able to express their concerns to Mr. Monti. (Tr. 679) Monti responded

by indicating that he would send John Daly, the supervisor of safety in for an inspection. Mr. Cotter testified specifically that he had complained about Dorrer's attitude at the meeting in that he was stubborn with respect to yielding to the Safety Committee (Tr. 681), and also the attitude of Mr. Kinkel concerning the work permit situation, and accordingly Monti said that he would talk to Kinkel about it. It was thought that Monti would give more power to Mr. Daly so as to improve his ability to get supervisors to cooperate in improving safety standards.

    The Complainant testified that he had attended approximately 18 safety meetings since 1978, but remembers in particular the meeting of November 20, 1980, because he was particularly vocal and because it was a full committee meeting which lasted a few hours (Tr. 686), Shortly thereafter he was transferred from the area of containment to the turbine floor on the ground that his exposure to radiation was excessive, although he had established that there were other employees with higher radiation levels in containment (Tr. 693).

    It may be significant that shortly thereafter while talking to Dorrer about a problem concerning Ed Daly in which Daly complained that Dorrer had spoken to him in a disparaging way Dorrer indicated that he did not know what was in the minds and hearts of people said that Mike Cotter at that time might have been entertaining the idea of killing him. (Tr. 697) Cotter responded that it would be a sin and it seemed that the entire remark was improper.

    The final incident occurred on November 29th which was near the week in which Cotter returned to the Turbine Floor. On that day he had been engaged in removing "baskets" from the moisture separator, which required the mechanic to enter a contaminated compartment wearing protective gear, and although the separator had not been in use since approximately October 15th, Cotter described the temperature therein as being approximately 80 to 90 degrees. Describing his attire in detail, including a full respirator over his face, I conclude that there was very little ventilation and that upon the conclusion of his work, Cotter was sweating. He testified that at first he went with a coworker to look for Mickley, who was his immediate supervisor, to report that the job was finished. (Tr. 730) Not being able to find him he went to the locker room, borrowed

a hairdryer, and while at the sink, blow-drying his hair, Dorrer appeared. Approximately 15 or 20 other mechanics were passed by Dorrer on his way to the bathroom. Dorrer charged that Cotter was off the job and taking advantage of the fact that Mickley had left the plant because of a personal emergency. (Tr. 733) Cotter attempted to explain to Dorrer that he did not believe Mickley had gone home because earlier in the day he had indicated that he had transportation problems, and that he never insisted that permission be obtained to go to the locker room (Tr. 741,742). He attempted to explain all of this to Dorrer who was evidently under the impression that Cotter had taken a shower, but all Dorrer would say was "go on, keep talking Mike, keep talking." It was apparent to Cotter that Dorrer was not accepting his explanation. Later, while Cotter was talking with Gene Duffy, Dorrer emerged from his office and stated "I'm going to write a letter on you Mike. There may be further disciplinary action to follow." Cotter requested an opportunity to talk with Dorrer who left the area and then returned. When he returned Cotter explained his side of the story and asked why Dorrer had such animosity against him. Cotter found Dorrer unreceptive to explanations and concluded that it was hopeless to persist. Cotter states that he then returned home, and denies that he ever made any threat to Dorrer or that he ever telephoned Dorrer's home.

    The following day at work, Mickley appeared, and stated to Cotter that Dorrer had told him that Cotter had threatened him on Saturday, but said that if he apologized he would forget everything (Tr. 745). Cotter refused to apologize because he denied having threatened Dorrer. (Tr. 745). Later he was told to report to Mr. Long, who was the Project Manager and who had two people there from Personnel and was asked about the allegations concerning threats. Cotter refused to say anything without union representation. Unable to obtain a union representative, he also refused to make a statement and was allowed to remain at the Station only for such time as he could complete his shift if he promised that he would not see Dorrer. The next day he was referred to a psychiatrist for evaluation. He was ordered to leave Indian Point on December 3rd, which is about 3 days after the incident and from December 4th until January 29th he worked in the East River Station (Tr. 753). In Cotter's view, these charges were all "trumped up" in order to get him out of the Indian Point Station. (Tr. 755) Although interviewed by Personnel on January 9th he denied that he had made such threats and on January 29, 1981, he was told at work by Mr. Satira

that he was being terminated. According to Cotter he was in state of "total shock", and he was escorted off the property.

    On cross-examination, Mr. Cotter conceded that in connection with the warning given to him in 1972 when he was assaulted, he had misrepresented that the assailant was unknown to him, and that he did not reveal his identity because he felt an obligation to protect another union member (Tr. 779). He also agreed that most union members seek to protect themselves against action to be taken against them by the company, and that the complaints made at Ravenswood concerned a conventional or nonnuclear facility (Tr. 783). It as brought out that Dorrer had testified against him once before at an arbitration hearing at which Cotter lost pay (Tr. 803) and although Cotter maintained an attitude of equanamity during the course of the entire hearing, and indicated that he was calm during the exchange with Dorrer at the incident which resulted in his discharge, he did admit that on December 21, 1978, he had a heated or emotional exchange with Dorrer (Tr. 810) indicating that he is capable of losing his temper. He denied that he had asked to talk to Fred Dorrer privately on December 29th (as Dorrer asserts) although he had insisted on the presence of a union representative or an attorney on other occasions (Tr. 813). In talking to Dorrer on November 29th there was a dispute as to exactly how far Duffy was standing from them, and whether he was actually looking at them. He also denied, as Dorrer subsequently asserted, that when Dorrer appeared in the locker room, he lost his temper and told Dorrer he had no business there (Tr. 840). With respect to the medical appointment incident it was brought out that the doctor's office was only twenty miles away from work, and although it was suggested to him that he might have made it to work by train in time to complete a portion of the day, Cotter indicated that he was entitled to lunch, had the problem of finding a restaurant and could not have gotten to work earlier enough to make it worthwhile (Tr. 851). He denied making threats to Dorrer or making a statement about "taking money out of his family's mouths or pockets" (Tr. 865) and insisted that the reason he did not tell his full story to security when given the opportunity to do so was because he was instructed by his attorney only to answer questions, to cooperate, but not to volunteer information particularly in view of the fact that the attorney could not be there (Tr. 866, 867). Accordingly, on those occasions he did not connect up any relationship between his troubles with the fact that he was involved in making safety complaints (Tr. 867). He indicated that Dorrer had been particularly punitive in calling the physician

in February 1978, to see if he had finished his medical appointment, and in leveling a 7 hours suspension after he was absent for 15 minutes from the job in another incident (Tr. 890).

    Mr. Dorrer's testimony of course followed in broad outline the testimony given by Mr. Cotter except for certain major differences. He recalled the incident with respect to the dust which resulted from sandblasting the spindle in November 1980 indicating that not only Cotter, but his boss John Daly, and Bob Long, and "everybody" complained about the dust. He could recall none of the conversation which he had with Cotter during the eleven hours period concerning the problems of the dust, except that he complained. None of his supervisors discussed the matter of safety complaints with him (Tr. 43), except for trying to stop the dust. He recalled the discussion with Ed Daly concerning whether he should be allowed to work after a medical appointment, in which Cotter participated, but could not recall indicating anything about "possible threats" being made on his life at that time (Tr. 48).

    Discussion turned to the working conditions inside a moisture separator in which Dorrer expressed the opinion that in November it was unlikely that a person would be sweating inside the separator because all the heaters were broken in the building (Tr. 56). He described how on November 29th he entered the locker room, going past the showers, past the men toilet, to the lockers. He indicated that it was not normally his responsibility to conduct an inspection of the locker room, as this was ordinarily the duty of the first line supervisor (in this case, Mickley) and he was the second line supervisor. Nevertheless, this was occasionally done by the second line supervisor and if a man is found in the locker room, without good reason, it could be the subject of disciplinary action. Retracing his steps according to a diagram used by counsel, he indicated that as he walked down the corridor past the toilet and to the location of the lockers, there were plenty of men sitting there but recalls none who were under his supervision on that particular day (Tr. 71). Among those he noticed were Cawley and Cotter. Cotter was at the sink blow-drying his hair. He remarked that this was "a fine thing", Mickley being home on an emergency, and Cotter blow-drying his hair (Tr. 73). He was under the impression that Cotter had just emerged from a shower because his, hair was "fluffed", although he never asked him whether he had showered and Cotter was fully dressed (Tr. 74). He indicated that Cotter had used words to the effect that Dorrer had no business in

the locker room. A short time later when he emerged from his office he noted that Cotter and Gene Duffy were standing nearby. He told Cotter that he was subject to disciplinary action when he wrote the letter (Tr. 80). Cotter asked to talk to him and he indicated he would do so when he came back after checking out the gang. When he returned, he continued the conversation with Cotter, indicating that Duffy was anywhere from 10 to 20 feet away (Duffy indicated that he was no more than 10 feet away). In his written statement (Ex. C-23) he indicated Duffy was 20 feet away, Cotter having requested to talk to Dorrer privately. He indicated that Cotter went into a rage threatening to gouge out his eyes and to kill him and urging him to come outside and "punching his hands and working himself into a rage." (Tr. 83) He indicated that he was screaming and put his hands up to Dorrer eyes when he threatened to gouge out his eyes. Later in his testimony he indicated that Cotter was speaking "not calmly, but was enraged and just slightly above the normal tone of voice" (Tr. 86) Duffy, to the contrary testified that Cotter at all times behaved in a calm manner, that he heard no screaming, and that his hand motions were not of a violent nature as described by Dorrer. Duffy of course did not hear the entire conversation and acknowledged that he would not testify against a fellow union man. Later Dorrer went into his office and related his experience with Cotter to Felix Foderingham and Mike Cillo who were in the office. He testified also that upon his return home he received two phone calls from Cotter, the phone being picked up by his wife and turned over to him, in which Cotter indicated that he was coming to get him and was otherwise ranting and raving. Although he said that he took these threats seriously (Tr. 92), he did not call Security at Edison or the police department. On the following Monday he submitted a letter reporting the incident to his manager, Mr. Kinkel.

    Dorrer testified that before he turned the letter in, he sent Mickley to Cotter to determine whether or not he would apologize, in which case he would have reported the incident in the locker room but not the threat (Tr. 100). Mickley reported that Cotter refused to apologize and that he told Mickley that he was going all the way and getting a lawyer. Under cross-examination Dorrer conceded that as the letter had not yet been submitted and even if one were submitted the usual procedure would be arbitration. Dorrer also indicated that in the conversation preceding the threats on November 29, Cotter had asked to speak to him "alone." This

was subsequently denied by Cotter.

    Gene Duffy's testimony essentially corroborated Cotter's version of the incident. He also indicated by his description of Dorrer's action when spoken to by Cotter, that he was contemptuous and said "I don't care what you say, I'm still writing a letter on you" (Tr. 135). Thereafter, they started to drift away from him and he could hear no more of the conversation, although he was watching them the entire time and saw no action which would indicate that Cotter had flown into a rage or moved his hands in anyway which would have threatened Dorrer. Duffy was subsequently interviewed by Con Ed officials (security) and a transcript of the interview was sent to him. He indicated that there was some minor variations and that about a week prior to the hearing he was reinterviewed by Security, warned about the penalties of perjury, because he had a "family, wife and children" (Tr. 145) and he refused to change his story. Under cross-examination, he conceded that he never testified against another union member and would not do so. (Tr. 160)

    Paul H. Kinkel testified that during the pertinent period he was Manager of the Field Operations Bureau of the Power Generation Maintenance Department. In that position he was over Niederberger who was over Dorrer. He indicated that he participated in the decision to discharge Cotter by discussing the incident with Dorrer and with Central Personnel and reviewing the reports of security interviews with Cotter. Based on these he finalized a recommendation that Cotter be terminated from the Company (Tr. 165). The recommendation was finalized on January 28, 1981 (the same day that Duffy was interviewed by security) although he was made aware of the contents of Duffy's interview. He was unable to recall whether around November 20th, Cotter was involved in making safety complaints (Tr. 170), indicating that at that time many employees were making such complaints. As concerned the dust incident around the spindle, he could not recall Mr. Cotter's involvement specifically (Tr. 173). He recalled various complaints being submitted to him by members of the committee, such as Mr. DiNardo, and indicated that these people were still working with the company (Tr. 177). Mr. Kinkel did recall the incident concerning a complaint of people using different radiation work permits for clean-up of an area and that his complaint was brought by Cotter, that he agreed with him, much to his embarrassment (Tr. 179).

    John Cawley testified that he was in the bathroom when Dorrer entered, heard his remarks to the effect that Cotter was taking advantage, and Cotter's attempt to explain that he had just emerged from the moisture separator. Although he was not certain whether he heard the entire conversation (Tr. 197) no part of his testimony confirms Dorrer's allegation that Cotter in obscene language told him that he had no business in the locker room. He also indicated that he would not lie under oath in order to help a union member. William Dodd testified that he heard the entire converstation which took place in the bathroom between Dorrer and Cotter because he was sitting in a stall at the time. His account corroborates Cotter's version essentially in that it omits any report of Cotter criticizing Dorrer for being in the locker room.

    Edmond Daly recounted a conversation with Dorrer concerning permission sought to keep a medical appointment in a compensation case where Dorrer made belittling remarks to him. (Tr. 219). Cotter who was present indicated that sometimes people say things which are misunderstood because one does not always know what is in the other fellow's mind. Dorrer thereupon turned to Cotter and said "for instance, right now you could be planning to kill me." Both Daly and Cotter were astonished as the comment appeared to be inappropriate and nothing was gained from the conversation (Tr. 220, 221). He also was quoted as stating that he had no concern for him being more concerned with the utilization of the company's time (Tr. 223).

    Two other employees, Diedrick and Dunn testified that they overheard a conversation between Dorrer and Mickley in November in which Dorrer instructed Mickley to dock Cotter if he was found to be off the job or late.

    Steven DiNardo, a shop steward and a member of the union's Nuclear Safety Committee during the pertinent period, also appeared and testified on behalf of Cotter. He indicated that he was present during parts of the spindle episode around November 19, 1980, and described the efforts to contain the just which was causing a problem on the turbine floor. He indicated that Mike Cotter and others were involved in suggesting solutions and that they were dealing directly with Dorrer who was resistant to the suggestions which were being made. (Tr. 258) Only after considerable resistance were the suggestions adopted.

    On November 20, the day following the incident, a meeting had been scheduled for the purpose of discussing a variety of topics with Bill Monti, who was the plant manager. It may be noteworthy that Kinkel inquired why Cotter and DiNardo were present at the meeting because they were considered to be missing for approximately 2 hours. In addition, the following day Kinkel wanted to know why DiNardo had not gone to the general foreman with certain safety complaints, as opposed to raising the complaints at a meeting before management had an opportunity to rectify the situation. (Tr. 262). DiNardo also testified that he discussed with Kinkel, Ruez's plan for pulling Cotter out of containment and putting him on the turbine floor and Kinkel agreed to keep Cotter at his present assignment (Tr. 266). Eventually he was transferred by Ruez anyway.

    DiNardo also testified as to his participation in the discussion with Daly, Cotter and Dorrer concerning the manner in which Dorrer had spoken in a deprecating way to Daly concerning his desire to return to work after a medical appointment. His story corroborates that given by both Cotter and Daly concerning Dorrer's suggestion that Cotter might have been harboring a thought about killing him (Tr. 271).

    On cross-examination, Respondent's counsel went through a long list of employees who had served on the Nuclear Safety Committee of which Mr. DiNardo had been co-chairman. Many had expressed concerns concerning safety at committee meetings and all continued to be employed by the company or had retired bit had not been terminated in a way as was Cotter. (Tr. 304) In going down the list of those people who had been active on the Safety Committee and who were not terminated, it was also brought out by complainant's counsel that none were supervised by Dorrer or Kinkel (Tr. 316).

    Mr. John Odendahl, also a shop steward, and chairman of the Utility Workers Union Nuclear Safety Committee also testified. He testified that Cotter had taken an active part in most of the meetings and while he was working in containment relayed various safety complaints to him because he was chairman of the Safety Committee for Indian Point. At the meeting of November 20, 1980, he indicated that Cotter had been outspoken particularly on the issue that Con Edison had been slow in cleaning up safety hazards for weeks, but made the place shipshape as soon as visitors

or V.I.P.'s appeared (Tr. 340). He itemized a long list of complaints such as tripping conditions, the barricades, pits, etc. (Tr. 341). He indicated that the official minutes of the meeting were deliberately made to be concise and he recalled that Cotter or someone had mentioned Kinkel's name, and Ruez's name many times during the meeting and the sandblasting incidents on the turbine room floor were brought up as representative of how things were being controlled at Indian Point (Tr. 342). There was also the matter of the work permits and allowing almost anybody to participate in the sandblasting with the possibility of fixed contamination, which was also discussed by both DiNardo and Cotter. (Tr. 343) He also recalled an incident in which Monti criticized Dorrer regarding his failure to put a safety chain on the ground floor of the turbine building to preclude people from walking into a dangerous area (Tr. 346, 347). He also testified that prior to Cotter's discharge employees had less reluctance to give their names when making safety complaints, which he transmitted to the appropriate authorities for attention. The general word had been that if you made safety complaints you would be transferred out. He indicated that prior to Cotter's discharge approximately 50% would refuse to use their names, although subsequent to Cotter's discharge almost everybody would not permit use of their name. He alleged that complaints had been markedly reduced since the last meeting with Monti on November 20, 1980 (Tr. 355). However, he refused to provide the names of any of the men who had submitted complaints (Tr. 353).

    Mr. Joseph Satira, Personnel Administrator for Power Generation testified that he interviewed the complainant concerning the incident of November 29, 1980, on December 3, 1980, and again on January 29, 1981. He testified that at the first interview he advised the complainant that the Department was not waiving further disciplinary action and that an investigation was going to be conducted to establish a job fitness examination. At that time the complainant declined to state his version of the events as he did not have union representation. The medical evaluation for which he was going to be referred was one to determine whether he had an emotional problem that would in fact have caused whatever incidents he was involved in (Tr. 902) or determine whether he was accountable for his actions. At the interview on January 29, 1981, he was informed that a decision had been made based upon the fact that Gene Duffy had been interviewed (on January 28, 1981) that Dorrer had submitted to a polygraph test (which Mr. Cotter

at that time had refused to do) and that a decision had been made to terminate his services because of his threats to Dorrer. At no time did Cotter claim that termination was based upon the safety complaints which he had made at Indian Point (Tr. 905). It also developed that the final decision to terminate Mr. Cotter was made on January 28th and involved telephone conversations between Satira Mr. Kinkel (who made the initial recommendation), the Department Head and Industrial Relations. There is no indication that any of the people who made the final decision saw the written report of Duffy's interview but based upon Satira's relation to them as to what it contained, was apparently discounted because he was just another union employee. (Tr. 927) In this connection he conceded that all non-management employees were union members (Tr. 928). Although the concurrence of major elements was obtained on January 28th, to terminate Cotter, this decision was considered to be tentative and subject to reversal if Cotter gave any material information of importance on January 29th. In fairness to management, it must be noted that an interview was conducted by Security on January 15, 1981, at which time Cotter gave his version of what occurred on November 29, 1980. (Tr. 952-954) Mr. Satira conceded that the initial recommendation came from Kinkel and it was finalized on January 28, 1981, after the Duffy interview (Tr. 956).

    In reviewing Cotter's record, Satira conceded that from July 1, 1959 through December 1, 1978, he had never received a warning for being off the job (Tr. 964). Nevertheless, it was emphasized that the reason for his termination was not the fact that he was in the locker room but because of the threats to Mr. Dorrer. Succinctly put, the reason for the discharge was the fact that management's representatives believed Dorrer and did not believe Cotter or Duffy. It was also noted that in the discussions held between November 29, 1980 and January 29, 1981, concerning Cotter, his complaints concerning safety were never mentioned. (Tr. 971).

    Stanley Wisla, who during the pertinent period was a Chemistry and Radiation Safety Director at the Indian Point Station testified that when complaints came through him they were primarily from John Odendahl, but generally did not identify the employee who would have initiated the safety complaint, as this information was unnecessary. In this connection he never heard the name of Michael Cotter.

    Felix Foderingham testified that as of November 29, he shared

an office with Dorrer and corroborated Dorrer's statement that upon returning to the office he had stated that Cotter had threatened to kill him and that he subsequently had told him about the alleged calls that Cotter had made to his home. (Tr. 996) He did not recall Mr. Cillo being present during the discussion on November 29, 1980, even though Dorrer had testified that both were present. Under cross-examination he stated that in all of 19 years in Power Generation Maintenance he never heard anything said that Dorrer played favorites with employees or was unfair. He attested to some difficulty with Kinkel in that he was transferred shortly after he had refused to work in containment because he was unable to wear a respirator. (Tr. 1007) After he refused, Kinkel "thought it was not necessary to have a general foreman on the night shift, because they didn't need them on the turbine anymore he shifted me out of town." (Tr. 1007) Although he regarded this as a threat, he conceded that he never had been replaced on that job and denied that he really lost benefits by being transferred to Ravenswood, even though he lost approximately two hours pay each day which he earned for travel expense to Indian Point. Although he indicated that men generally perspired when working in the moisture separator, he said that he would not have allowed them to go to showers and have their work station after emerging from the separator. Mike Cillo, also a shop steward, and a tool keeper, testified that he was in the office when Dorrer and Foderingham came in and Dorrer reported that Cotter threatened to kill him. He could not believe that Dorrer took Cotter seriously because of the fact that Dorrer was so much larger than Cotter. Although Dorrer appeared to be disturbed, they went home.

    Mrs. Dorrer testified that she had received the two phone calls on the night of November 29, 1980, had turned the phone over to Mr. Dorrer and that Dorrer had mentioned to her that it was Michael Cotter. He did not inform her at the time as to what the telephone conversation was about except that there was some trouble on the job. Subsequently, her memory was reinforced by Mr. Dorrer, who reported to her that Cotter had been fired because he was caught in the showers before quitting time (Tr. 1044) and because he was written up, he had threatened him.

    Counsel for both sides were given the opportunity for sumnation at which time respondent's counsel moved for dismissal of the complaint on the ground that Cotter has made no complaint to an agency having jurisdiction as provided in the Atomic

Energy Act of 1954 as amended and the Energy Reorganization Act of 1974. An additional ground for dismissal is that the complainant has failed to prove his case.

    1. Jurisdiction. The respondent contests jurisdiction by the United States Department of Labor on the ground that the Act and the Regulations refer to complaints made to an agency having jurisdiction, such as those charged with administering the provisions of the Atomic Energy Act of 1954 or the Energy Reorganization Act of 1974. In the instant case, as the complaints were made within the company to representatives of the company the statute cannot be invoked to protect him (Tr. 1052)

    As herein applicable, 42 USCA § 5851(a)(3) protects those who have "assisted or participated, or is about to assist or participate in any manner in such a proceeding or in any other action to carry out the purposes of the Act or the Atomic Energy Act of 1974, as Amended." (Emphasis added). I believe that the statute is sufficiently broad to protect those employees who are engaged in those preliminary steps which would be necessary before a complaint is made to a governmental agency or any other outside source. If this were not so employees would have only the choice of not reporting violations or carrying them outside in order to obtain the protection of the Act and the Regulations. Thus in interpretation of the Section which protects an employee who complains within the organization is to the advantage of the employer as it provides him with the first opportunity either to deal with the complaint or to eliminate the violation. An interpretation to the contrary would result in either a "chilling effect" or a multiplicity of complaints to government agencies.

    2. The Respondent contends that Cotter was not terminated because he was involved in reporting safety violations or because he was caught in the locker room when he should have been at a work station. It is alleged that he was discharged for gross insubordination, having threatened to kill Fred Dorrer, and having called his home twice in connection with the threat.

    On the one hand, it strains credulity to believe that Dorrer conceived a plot on November 29, to tell Foderingham, and Cillo shortly after he terminated his conversation with Cotter, that Cotter had threatened to kill him. I would also have to believe

that Dorrer persuaded his wife to perjure herself concerning phone calls allegedly received on November 29, from Cotter. To involve middle and upper management in this plot Kinkel, Monti, Security, and Personnel would have to be involved in the conspiracy. Furthermore, so far as complainers go, the evidence clearly establishes that Cotter was only one of many employees who were vocal in expressing safety concerns and that he was the only one who became involved in an episode where he was terminated. It was pointed out that the Minutes of the Nuclear Safety Committee do not mention Cotter's name to a frequency which support the assertion of his witnesses that he was so vocal. Respondent's counsel also drew from several of Cotter's witnesses admissions that they would not testify against a union member.

    On the other hand there was testimony that the Minutes were intentionally kept concise. Furthermore, the admissions of witnesses that they would not testify against union members is not tantamount to a concession that they would perjure themselves to protect follow union members.

    Allowing due regard for bias, I am nevertheless persuaded to give great weight to the testimony of Cotter, DiNardo, Odendahl, and Duffy concerning activities in which Cotter was involved concerning safety and particularly Duffy's observation of Dorrer and Cotter at the time when the alleged threat was said to have been made. As I view the evidence, I conclude that Dorrer and Kinkel were willing at times to cut corners or delay removal of safety hazards in their concern to return this facility to an operational state.

    I am also unable to divorce the alleged threat from the peculiar remark made by Dorrer, and related by Daly, DiNardo and Cotter concerning the feelings which may lurk in other people's minds, suggesting that Cotter might have been entertaining an idea of killing him. One can speculate as to whether Dorrer had an ideation or an obsession which may have lead him to misconstrue or imagine one of Cotter's statement's of November 29, to contain a threat. Apparently he never regarded such a threat to be of a of a serious nature because he did not seek police protection and would not have reported it if he had received an apology. Dorrer, who alleges that the threat was made, and heard it within the context of other remarks, was the best judge as to the weight to be given such threats. For an apology he would have waived report of the threat, but not the offense

of being in the locker room. Management thought the threat was sufficiently grave to order Cotter's termination.

    Assuming, that the threat was actually made, Dorrer regarded it, at worst, as gross insubordination and if it was true that Cotter was grossly insubordinate, I would have expected all circumstances to be considered in the case of an employee with over 20 years of service and that conclusions would have been based upon an adequate investigation.

    Respondent's counsel has reiterated the point that the union employees stick together. Nothing speaks more loudly of management cohesion than the fact that the concurrence of all top people with respect to the decision to terminate Cotter was made on January 28, 1981, the same day that Duffy was interviewed and with knowledge that Cotter was to be seen again on January 29. Mr. Satira conceded that Duffy's interview was discounted because he was a union employee. Furthermore, Satira in effect admitted that Cotter was sent to the psychiatrist as much as to corroborate the incident as to determine his fitness for the job or accountability for the offense. Not until January 29, 1981, was Cotter informed that termination was under consideration. Although it was charged that Cotter never raised the issue of safety complaints as being the basis for the disciplinary action, he explained at the hearing that he was told by his attorney not to volunteer information in view of the fact that he was not represented.

    I do not rule out the possibility that Cotter made a threat, or made the phone calls to Dorrer's home on November 29th Although Duffy testified that he had observed the two men during the conversation he admitted that he was out of earshot for a short part of the time. I credit Duffy's testimony as indicating that the parties spoke in a calm way and that gestures made by Cotter in the course of his conversation did not indicate that he was in a type of rage as described by Dorrer. Furthermore, Dorrer himself referred to the conversation at one point as being calm, in the sense of not being very loud, although he first described Cotter as "screaming."

    What has emerged from this record is that there was an adversarial relationship between Dorrer and Cotter. Dorrer was under the impression that Cotter had taken a shower, which to him, may have been a greater abuse of time than merely drying his hair. Cotter at no time was afforded an opportunity, under

conditions where he would be legally represented, to explain his side of the story. If there were a threat or an altercation or verbal argument between the two men, it was inextricably bound up with the other events of the day and with the irritations which no doubt arose in part because of Cotter's disputes concerning safety hazards with Dorrer.

    Key witnesses were not interviewed to determine the truth of Cotter's story. The person who loaned Dorrer the hairdryer, the fifteen or twenty mechanics who were in the locker room at the time Dorrer had the confrontation with Cotter, and Mickle were not interviewed. Except for Mickle these witnesses might have given testimony concerning whether or not Cotter actually showered. Mickle might have given information as to his practice of requiring permission to go the locker room, and as to his conversation with Dorrer and Cotter regarding the threat. Complainant's counsel indicated that he had tried to subpoena Mickle but he was away on vacation on the date of the hearing. The person who went with Cotter to search for Mickle after completing their work at the moisture separator was not interviewed. Satira admitted that nobody else was interviewed but Duffy until January 28th (Tr. 940).

    Because of inadequate investigation, along with Cotter's history with respect to expressing safety concerns, I conclude that he was discharged for reasons violative of the Act and the Regulations. There is evidence in the record of discriminatory treatment, such as removing him from the containment area, Dorrer's remarks about putting him in a "rocket suit", and Dorrer's instructions to Mickle to dock Cotter for losing time (as opposed to ordering that any employee be docked for losing time). While I find no evidence to indicate that Top management of Consolidated Edison participated in a conspiracy to discriminate against or to silence Cotter, any error or abuse of discretion in those who recommended termination must be imputed to them.

    Clearly membership or activity in a Nuclear Safety Committee should not immunize an employee from the imposition of sanctions for insubordination. It is therefore incumbent on managers to conduct prompt and complete investigations to absolve themselves of the charge that their decision with respect to the employee was based on such activity.

    In determining Management's motive for terminating an employee, the information it had at the time it took its action is more pertinent than the enlarged record compiled as a result of the formal hearing. The decision here was obviously based on a polygraph test given to Dorrer and the conflicting statements of the protagonists. Duffy's interview was accorded no weight even though he was the only witness to the conversation. The Respondent's strongest witnesses, Foderingham, Cillo and Mrs. Dorrer were not interviewed until after the decision was made. Considering the evidence adduced by Cotter at this hearing, I conclude that the recommendation to terminate Cotter was based on an antagonism which in some degree was engendered by his activity on the Safety Committee. Furthermore, the evidence accumulated at the time the decision was made did not warrant the finding of misconduct or the extreme sanction of termination, thereby supporting the inference that the termination was based on reasons which were violative of the Act.

    3. I have not dealt with Complainant's arguments that I an bound to accept certain findings of the New York Unemployment Insurance Administrative Law Judge under the doctrine of collateral estoppel. I regard that argument to be of no merit, but unnecessary to address, in view of similar conclusions independently arrived at.

    It is ordered that the Respondent, Consolidated Edison Company of New York, reinstate the complainant Michael Cotter, to his former or a substantially equivalent position, if desired, together with the compensation (including back pay less any earnings received from other employment), terms, conditions, and privileges of that employment.

       LEONARD N. LAWRENCE
       Administrative Law Judge

Dated: 7 JUL 1981
Washington, D.C.