In the Matter Of
CALVIN CREEKMORE, CASE NO. 93-ERA-24
COMPLAINANT, DATE: June 20, 1996
v.
ABB POWER SYSTEMS ENERGY
SERVICES, INC.,
RESPONDENT.
BEFORE: The Administrative Review Board[1]
SECOND SUPPLEMENTAL ORDER CONCERNING REMAND
The Deputy Secretary of Labor found that Respondent, ABB
Power Systems Energy Services, Inc. (ABB PSESI), violated the
employee protection provision of the Energy Reorganization Act of
1974 (ERA), 42 U.S.C. § 5851 (1988), when it laid off
Complainant, Calvin Creekmore. The Deputy Secretary ordered ABB
PSESI to reinstate Creekmore and remanded the case to the
Administrative Law Judge (ALJ) for a recommended decision on the
amount of damages and certain remedies to which Creekmore is
entitled.
While the case was pending before the ALJ on remand,
Creekmore filed a petition with the Deputy Secretary for
reconsideration of the Remand Order and seeking additional
remedies. Creekmore raised the issue of the appropriate
corporate entity that should offer him reinstatement because of
Respondent's earlier statement that Combustion Engineering, Inc.
retained liability in this complaint. At the time the issues in
this case arose, Creekmore was employed by ABB PSESI, which was
owed by Combustion Engineering. In turn, Combustion Engineering
is a wholly owned subsidiary of Asea Brown Boveri Inc. (ABB). In
1994, Combustion Engineering sold all of the capital stock of ABB
PSESI to Octagon, Inc.
[PAGE 2]
In response to Creekmore's inquiry about the appropriate
entity to offer reinstatement, the Deputy Secretary stated:
Respondent has explained that after the sale, ABB-CE
retained liability arising from this complaint. * * *
In ordering PSESI to reinstate Creekmore, however, I
did not mean to obligate a corporation that did not
retain liability in this cause of action. Rather, it
is appropriate that ABB-CE has the obligation to
reinstate Creekmore to a substantially similar
position.
Supplemental Order at 3.
Respondent now asks for reconsideration of the Supplemental
Order because it contains "a reinstatement order . . . against an
entity that is not a party to the current action," meaning
Combustion Engineering. Respondent states that, in the context
of the sale of the capital stock of ABB PSESI, Combustion
Engineering entered into an indemnification agreement concerning
Mr. Creekmore's outstanding complaint against ABB PSESI that "is
limited to providing defense and indemnity to Octagon, Inc.
against monetary damages that may be incurred by PSESI as a
result of this complaint." Pet. for Recon. at 2. Respondent
argues that a remedial order for reinstatement "should be made
against PSESI." Id.
Respondent is correct that, as the named Respondent and the
entity that was found to have violated the ERA, ABB PSESI has the
obligation to offer reinstatement to Creekmore. If a separate
contractual obligation exists that requires another entity to
assume ABB PSESI's reinstatement obligation, and if there is a
dispute as to that obligation, the proper means to resolve that
dispute is through an enforcement action.
Although the Department of Labor usually would not be
concerned with any private indemnity agreement such as that
described by Respondent, in this case our responsibility to
enforce the whistleblower provision of the CAA is implicated.
The Petition for Reconsideration informs us that Combustion
Engineering has "contractually retained responsibility for
defense" of this case. Pet. for Recon. at 4. It is now
apparent, however, that Combustion Engineering's interests have
diverged from those of the named Respondent, ABB PSESI, at least
with regard to the issue of reinstatement of Creekmore. In light
of this Department's obligation to enforce the employee
protection provision and ensure that bona fide
reinstatement is offered, we direct the ALJ on remand to notify
Octagon, Inc., of the position taken by Combustion Engineering
regarding reinstatement and to give Octagon, Inc. an opportunity
to be heard on this issue. We deem this step necessary because
of the
[PAGE 3]
divergence of interest between the entity that apparently has
contracted to provide the defense in this case and the named
Respondent, ABB PSESI.
We remind the parties that ABB PSESI's back pay liability
continues until Creekmore is reinstated or declines a bona
fide offer of reinstatement. Asst Sec. and Phillips v.
MJB Contractors, Case No. 92-STA-00022, Final Dec. and Order,
Oct. 6, 1992, slip op. at 4-5. To be bona fide, the offer
must be to a comparable position with the same compensation,
benefits, and privileges that Creekmore enjoyed prior to his
discriminatory layoff. See Smith v. Littenberg, Case No.
92-ERA-52, Sec. Dec. and Limited Remand Ord., Sept. 6, 1995, slip
op. at 9 and Blackburn v. Metric Constructors, Inc., Case
No. 86-ERA-4, Sec. Dec. and Ord. on Damages, Oct. 30, 1991, slip
op. at 21, aff'd in relevant part and rev'd on other
grounds, 982 F.2d 125 (4th Cir. 1992).
CONCLUSION
Consistent with this Order, on remand, the ALJ shall give
Octagon, Inc. the notice described above, and an opportunity to
be heard in this matter.
SO ORDERED.
DAVID A. O'BRIEN
Chair
KARL J. SANDSTROM
Member
JOYCE D. MILLER
Alternate Member
[ENDNOTES]
[1] This matter was filed before the Secretary of Labor
pursuant to the Energy Reorganization Act and 29 C.F.R. Part 24.
The Secretary recused himself in this case. The Deputy Secretary
issued a remand order in this case on February 14, 1996 and a
Supplemental Order Concerning Remand on Apr. 10, 1996. On
April 17, 1996, the Secretary delegated jurisdiction to issue
final agency decisions under this statute and these regulations
to the newly created Administrative Review Board (the Board).
Secretary's Order 2-96 (Apr. 17, 1996), 61 Fed. Reg. 19978,
May 3, 1996 (copy attached). The Board reviewed the remand
order, supplemental order, and the entire record in this case
prior to issuing this order.
