Office of Administrative Law Judges
2600 Mt. Ephraim Avenue
Camden, New Jersey 08104
DATE: Dec. 19, 1989
CASE No. 89-CAA-00002
IN THE MATTER OF
LAWRENCE SCERBO
Complainant
v.
CONSOLIDATED EDISON COMPANY OF
NEW YORK, INC.
Respondent
BEFORE: AINSWORTH H. BROWN
Administrative Law Judge
RECOMMENDED DECISION AND ORDERProcedural History[PAGE 1]
This matter is presented upon a request for hearing that was
made by telegram on December 16, 1988 by the Respondent in contest
of a Department of Labor notice dated December 12, 1988. The
notice found that the Respondent had violated the Clean Air Act
whistleblower protection provision and required it to transfer the
Complainant back to his original position in the pipe yard to
"Abate the violation".
This matter was received on my docket on December 22, 1988.
In view of the season of the year the prospects for accomplishing
a hearing according to the pertinent time constraints did not
appear possible. Therefore, the parties were ordered to perform
certain acts in preparation for hearing by notice dated January 4,
1989. There was a request to postpone compliance with the Order
by letter dated January 20, 1989 in view of arbitration
proceedings. This was granted and the parties were given to
March 27, 1989. Further time was requested to April 12, but on
that date a joint notice was made to proceed with this action.
Consequently, a hearing was scheduled for June 22, 1989.
On May 4 the parties requested a change of the hearing
location and a continuance. That was granted and the matter was
reset for August 7, 1989. Another continuance was sought, but
that was denied and so the hearing took place in New York, New
York on August 7, 1989.
The record was held open to receive the deposition transcript
for a witness for the Respondent who was unavailable to testify
on August 7. The transcript of a deposition for Clifford Smith
was received into the record as RX 1.1/ Following the
closing of the record the parties were afforded an opportunity to
provide written argument to be furnished by November 10, 1989
whereupon the matter became ready to decide.
EVALUATION OF EVIDENCE ANDFINDINGS OF FACT AND CONCLUSIONS OF LAW
The crux of the matter is whether the Complainant has established a
basis for the relief he has sought based on discriminatory action taken
by his employer because of his protected action involving whistleblowing.
The Respondent has raised an issue respecting the fact that Mr. Scerbo
engaged in protected activity in calling attention to certain
situations, apparently investigated by the employer and the federal
occupational health agency. In reading the argument the most charitable
characterization I can make is that it is hyper-technical. To state
that the complaints of noxious matter getting into the air at the Con Ed
[PAGE 2]
warehouse as not affecting "public" air is like saying that there is an
invisible wall separating the warehouse from the adjacent locality. If
the elements got in the air that got into the public air. I find that
the Company's argument is wholly meritless.
I must consider whether the transfer out of the pipe yard to inside
positions within the warehouse involved a discriminatory action. To
decide this I must look to the reason for the transfer as expressed by
the company was merely pretextual or valid and unrelated to the
protested activity engaged in by Mr. Scerbo. His counsel requested other
relief in the general nature of compensatory damages, but despite being
cautioned he provided no evidence to support compensatory damages. The
request for counsel fees; however, can be granted with favorable
recommendation and adoption thereof by the Secretary of Labor.
The reason offered by Con Ed for transferring Mr. Scerbo out of the
yard and into the warehouse was to separate him from supervision by Mr.
Dorane who Mr. Scerbo claimed had bumped or jostled him on occasion.
The transfer was to reduce tension between the two of them. The
suggestion was made by Mr. Dorane to his supervisor, Mr. Smith, who
concurred. The Complainant argued that the action had the effect of
cutting him off from contact with his fellow union members who reported
safety and health violations to him, but who were reluctant to make
complaints themselves. Mr. Scerbo functioned as a shop steward. The
thrust of Mr. Dorane's testimony was that Mr. Scerbo was a good worker
and the totality of the record is that the company agreed with at least
some of the matters the Complainant brought to its attention by altering
its storage practices.
Mr. Smith's testimony provides an interesting contrast to Mr.
Dorane's representations. Mr. Smith's description of events would lead
one to believe that the transfer was done to remove a disruptive and
belligerent employee from one place to another whereas Mr. Dorane's
portrayal was that the alleged bumping complaint was the sole basis for
the transfer in the context of changing from one supervisor to another.
Mr. Dorane did not describe any disruptive behavior.
The relevance of Mr. Scerbo's evaluation is patent in this context
in that both Mr. Brady and Mr. Dorane signed the evaluation on June 16,
1988, shortly before the occurrence of the operative events generating
this proceeding. One has to question how an employee with several
superior ratings and satisfactory ones in the areas relating to
interpersonal dealings gets to be disruptive and belligerent so shortly
[PAGE 3]
thereafter. One can reasonably infer that it is Mr. Smith's frustration
with Mr. Scerbo's whistleblowing that was thusly characterized (RX - 1,
TR - 52-53).
Despite Con Ed's protestation to the contrary I find that the stated
reason for the transfer was pretextual. Just because an employee makes
a complaint and files a grievance concerning a supervisor does not mean
that the supervisor and the employee must be physically separated and
that the one can not supervise the other. The history here while
disclosing two areas of modest conflict between the two fails to indicate
more than that. There is no evidence of ongoing conflict, argument, or
resistence to supervision. The evidence is to the effect that Mr.
Dorane regarded Mr. Scerbo as a good worker who functioned in the highest
estimation within several parameters of performance. The real effect of
the transfer was to remove Mr. Scerbo from the locale where he was
observing and reporting on a situation of potential contaminating
influence. What happened is that the whistleblower was removed from the
area where the whistle would most likely be blown. The chillling effect
on fellow workers' propensity to report problems would be the
unmistakable message sent by the company in moving Mr. Scerbo.
The contention that he suffered no damage because he suffered no
loss of pay or fringe benefit is too narrow a focus upon which to
consider the question of whether discrimination was visited upon the
Complainant. To abate the discrimination all that is required is to
restore him to his previous outdoor job, and to compensate him and his
counsel for the costs of maintaining this litigation. If proof of lost
time and medical expenses would have been provided I would have been
inclined to recommend compensation therefor, but without such proof I am
not so inclined.
Con Ed contends that Mr. Scerbo is in the wrong forum; however, no
authority is cited for the proposition.
RECOMMENDED ORDER
l. Consolidated Edison is ORDERED to transfer Lawrence
Scerbo back to his former position, outside in the pipe yard.
2. It is further ORDERED to compensate him for the
reasonable costs or legal fees incident to his pursuit of his
whistleblower complaint before the U.S. Department of Labor.
[PAGE 4]
Ainsworth H. Brown
Administrative Law Judge
[ENDNOTES]
1/ Claimant's exhibits are CX, and Respondent's exhibits are RX.
