Date: FEB 17 1993

Case No.: 88-ERA-19

In the Matter of:

W. ALLAN YOUNG,
    Complainant

    v.

CBI SERVICES, INC.,
    Respondent

Before: John M. Vittone
    Deputy Chief Judge

Notice of Reassignment

   This case has been reassigned to Deputy Chief Administrative Law Judge John M. Vittone. All further submissions in this matter should be directed to Judge Vittone at this address:

Deputy Chief Judge John M. Vittone
Office of Administrative Law Judges
Suite 400N
800 K Street, NW
Washington, DC 20001

Status of Complaint

   On January 10, 1990, Administrative Law Judge Stuart A. Levin issued an Order Granting Continuance in this matter Pending the resolution of the appeal in Young v. CBI Services, Inc., 88ERA-8. (Judge Levin's Order is attached hereto and incorporated by reference) The Secretary of Labor issued a Final Decision and Order in Case Number 88-ERA-8 on December 8, 1992. Young v. CBI Services, Inc., 88-ERA-8 (Sec'y Dec. 8, 1992). (copy attached hereto and incorporated by reference)

   Judge Levin noted in his January 10,

1990 Order that Case Number 88-ERA-8 was based on the Respondent's termination of the Complainant in October of 1987 and that the instant case, 88-ERA-19, was based on the Respondent's refusal to rehire Mr. Young in March of 1988. In both cases, the Respondent contends that it took the adverse employment action based on the same legitimate, nondiscriminatory reasons.

   In Young v. CBI Services, Inc., 88-ERA-8 (Sec'y Dec. 8, 1992), the Secretary held that the Respondent rebutted the Complainant's prima facie case with evidence that its actions were motivated by legitimate, nondiscriminatory reasons -namely the Complainant's past horseplay, ineffective supervision of subordinates and production problems. Young, 88-ERA-8, slip op. at 7. The Secretary also held that the Complainant failed to establish that the proffered reasons were not worthy of credence. Id., slip op. at 9.

   IT IS ORDERED that the continuance granted in this matter by Judge Levin's January 10, 1990 Order is VACATED.

   IT IS FURTHER ORDERED that the parties show cause why the Secretary's findings in Case Number 88-ERA-8 should not be given res judicata effect in Case Number 88-ERA-19 and, if given res judicata effect, why those findings do not mandate a summary decision under 29 C.F.R. §§ 18.41(a) and 24.5(e)(4)(ii) in the Respondent's favor. The parties shall address whether a genuine issue of material fact is raised such that an evidentiary hearing is required, see 29 C.F.R. § 18.41(b), or whether the case can be disposed of based on the existing record. See generally Howard v. Tennessee Valley Authority, 90-ERA-24 (Sec'y July 3, 1991) (applying 29 C.F.R. §§ 18.40 and 18.41 to a ERA whistleblower case). Responses to this Order to Show Cause must be received by this Office on or before the close of business (5:00 p.m. EST) on March 29, 1993 to be timely. Failure to respond timely is ground for dismissal of the cause. 29 C.F.R. § 24.5(e)(4)(i)(B).

At Washington, D.C.

Entered:
by:

       John M. Vittone
       Deputy Chief Judge

JMV/trs

DATE: January 10, 1990
CASE NO. 88-ERA-19

IN THE MATTER OF

W. ALLAN YOUNG
    Complainant

   v.

CBI SERVICES, INC.
   Respondent

   This matter arises pursuant to a complaint filed under the Energy Reorganization Act by W. Allan Young. Mr. Young alleges that CBI Services, Inc. refused to employ him, because he engaged in protected activities under the Act.

   CBI Services denies Complainant's charges, and moves that this matter be continued pending the resolution of a related adjudication now pending appeal before the Secretary of Labor in Young v. CBI Services, Inc., 88-ERA-8. CBI argues that the underlying justifications which led it to terminate Mr. Young's employment in October of 1987, giving rise to 88-ERA-8, were the same reasons which justified its refusal to hire him in March of 1988. The latter refusal, of course, led to the complaint here at issue.

   On April 21, 1989, Judge Thomas Murrett ruled, in 88-ERA-8, that despite Mr. Young's protected activities, CBI did not improperly discharge him. Judge Murrett found that, as a general foreman in charge of pipefitters on a previous job, Mr. Young was "known to have engaged in repeated instances of unprofessional, immature, and even obscene behavior on the job." (D & O at 8). As a consequence he concluded, based upon the record before him and his evaluation of witness credibility "that CBI's determination to discharge (or not to permanently employ) Mr. Young in October 1987 on the basis of his past horseplay, considered by it to be odious, when coupled with the reduced production performance on the shift which he supervised to have been justified, notwithstanding his history of engaging in protected activity." D & O at 8; 88-ERA-8. Complainant has appealed this conclusion to the Secretary of Labor.

    In light of the fact that an appeal of Judge Murrett's findings and conclusions in 88-ERA-8 are pending before the Secretary, the parties in this proceeding were, by order issued on October 11, 1989, invited to "identify with particularity the specific fact issues which were not adjudicated in 88-ERA-8 and which are relevant in this proceeding."

   The parties response to the inquiry of October 11, 1989, demonstrates that the factual circumstances which Judge Murrett found to constitute justification for discharging Mr. Young are essential elements in defense of the decision not to rehire him. Judge Murrett found that knowledge of Mr. Young's conduct and performance on previous jobs led CBI to terminate him, and according to Complainant, the decision by Mr. Helfast not to hire him was also based upon Mr. Helfast's knowledge of Mr. Young's prior conduct and performance. (See, Complainant's letter dated October 31, 1989).

   Complainant further emphasizes that the circumstances which supported Judge Murrett's findings and conclusions were not adequately adjudicated in 88-ERA-8. He argues that he was not confronted at the hearing with allegations concerning the "leghumping" incident, and that witnesses were not cross-examined at the hearing about the incidents. Indeed, despite Judge Murrett's findings, Complainant now questions "the validity of respondent's leg-humping allegations," and argues that he has a right to cross-examine CBI's witnesses on this issue.

   Yet questions of substance and procedure concerning whether or not Complainant had an adequate opportunity to address this issue before Judge Murrett, and whether or not he was afforded the opportunity to cross-examine witnesses or call witnesses on his behalf are matters which are properly before the Secretary on appeal. The fact that two separate alleged acts of discrimination arise out of a common course of conduct does not necessitate two de novo adjudications of the underlying conduct. The employer here first terminated, and subsequently refused to rehire Mr. Young based upon its knowledge of his past conduct. While both the termination and the refusal to rehire may be acts of alleged discrimination, the underlying conduct is common to both.

   Consequently, Complainant here seeks to relitigate de novo the "validity" of procedures and defenses in 88-ERA-8. Yet, the question is not whether a new trier of fact might reach different conclusions on a new record, but whether the record before the Secretary supports Judge Murrett's findings on appeal.

   Should the Secretary determine that Complainant's assertions of error are correct, adequate remedies will be available. If Complainant's contentions are rejected by

the Secretary, however, relitigation of factual issues affirmed on appeal would not seem appropriate.

   Complainant has acknowledged that 88-ERA-8 and this case, "arise out of the same underlying chain of circumstances, ....and the witnesses...(are)...the same in each case...." (See, letter dated December 19, 1988). Moreover, Complainant elected not to consolidate the two cases. (See, letter dated December 29, 1988). Because the underlying chain of circumstances, in 88-ERA-8 and this matter are inextricably intertwined, the disposition of this case must hinge upon the resolution of factual and procedural issues on appeal in 88-ERA-8. Accordingly,

   IT IS ORDERED that further proceedings in this matter be held in abeyance pending the disposition of the appeal in Young v. CBI Services, Inc., 88-ERA-8.

       STUART A. LEVIN
       Administrative Law Judge

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